Judgment B.N.P.Singh, J. 1. After the buffalo of Maheshwari Mukhiya dashed with the buffalo of Tuntun Yadav (PW 4), an altercation ensued between them, pursuant to which it is alleged that Yogendra Mukhiya and Suresh Mukhiya came carrying lathi with them and did assault Tuntun Mukhiya. It was alleged that when Kripal Yadav came for rescue of Tuntun Mukhiya and wanted to restrain the assailants, But-tan Mukhiya and sitaram along with others came and on exhortation made by Maheshwari Mukhiya. Buttan Mukhiya thrust bhala in the abdomen of Kripal Yadav when the intestine bulged out. It was alleged that Kripal Yadav and Tuntun Mukhiya. pursuant to the assault on Kripal by bhala. were also assaulted by hard and blunt substance. Complicity of Ram Mukhiya. Saryug Mukhiya, Kishundeo Mukhiya. Parmeshwari Mukhiya and Lallan Singh were also suggested among the assailants and with these accusations, fardbeyan of Tuntun Yadav was recorded on 19th May. 1987 at 9.45 hrs. at Sadar Hospital. Saharsa and investigation commenced. 2. During investigation, the Investigating Officer visited the place of occurrence, recorded statement of witnesses. secured post-mortem report from the hospital and on conclusion of investigation, charge-sheet was laid before the Court against as many as ten persons including the appellants. The case was committed to the Court of Sessions when charges were framed against the appellants and others. Buttan and Maheshwari Mukhiya were charged under Section 302/149 Indian Penal Code (IPC). While Buttan Mukhiya was also tried for offence under Section 302, IPC simpliciter. Maheshwari Mukhiya, Yogendra and Suresh Mukhiya also stood charged under Section 323. IPC. However, the trial Court on consideration of evidence on record, while acquitted rest of the accused persons of the charges finding Buttan Mukhiya and Maheshwari Mukhiya guilty under Section 302/34. IPC. sentenced them to suffer rigorous imprisonment for life. Buttan Mukhiya also suffered conviction under Section 302. IPC and was sentenced to suffer imprisonment for life. Maheshwari Mukhiya and Yogendra Mukhiya also suffered conviction under Section 323. IPC and were sentenced to suffer rigorous imprisonment for six months. However, sentences were directed to run concurrently. 3. Two appeals were preferred challenging the findings recorded by the trial court and while Cr. Appeal No. 142 of 1995 was preferred by appellant Buttan. Cr. Appeal No. 110 of 1995 was preferred by appellant Maheshwari and Yogendra Mukhiya. IPC and were sentenced to suffer rigorous imprisonment for six months. However, sentences were directed to run concurrently. 3. Two appeals were preferred challenging the findings recorded by the trial court and while Cr. Appeal No. 142 of 1995 was preferred by appellant Buttan. Cr. Appeal No. 110 of 1995 was preferred by appellant Maheshwari and Yogendra Mukhiya. The matte being analogous, both these appeals were heard together and are being disposed of by this common order. 4. In the eventual trial, the prosecution examined altogether eight witnesses and those examined by the prosecution include Police Officer, who conducted investigation of the case, two doctors, one of whom carried to surgical operation on Kripal Yadav and the other who held autopsy over the dead-body of the deceased, pursuant to the death of Kripal Yadav who eventually succumbed to the injures in the hospital. The witnesses examined by the State also include persons who set the Police in motion, brother of the deceased and also those who claimed to be ocular witnesses of the incident. When the appellants were examined by the Court, under Section 313 of the Code of Criminal Procedure, they reiterated their innocence with counter-accusation against the prosecution party and as has been urged, the trial court on consideration of evidences placed on record by both the parties, rendered verdict of guilt against the appellant and sentenced them in the manner stated above. 5. For appreciation of the findings recorded by the trial Court, a brief resume of the narration made by the witnesses is apt to be discussed. Tuntun Prasad Yadav (PW 4) was the maker of the fardbeyan and he would reiterate his early version rendered before the Police barring some stray narrations which are admittedly not with the tune of his early version, but do not befog the real issue, is in the fardbeyan, he reiterated that tragic incident followed after his buffalo dashed with the buffalo of Maheshwari Yadav when the latter abused him and after that they came near the house of But-tan, he was assaulted by Maheshwari, Buttan and Yogendra with hard and blunt substance. After Kripal Yadav came for his rescue on exhortation made by Maheshwari Mukhiya. Buttan thrust bhala in the abdomen of Kripal Yadav. After Kripal Yadav came for his rescue on exhortation made by Maheshwari Mukhiya. Buttan thrust bhala in the abdomen of Kripal Yadav. He along with Kripal were carried to Sonbarsa Hospital from where they were referred to Saharsa hospital where he rendered his statement before the Police and as Kripal Yadav was in critical condition, despite treatment, he would not survive and succumbed to the injuries sustained by him. 6. Now adverting to the evidence of Saini Yadav (PW 1), one would find him narrating about arrival of Buttan Mukhiya, Maheshwari Mukhiya, Yogendra Mukhiya and others when on exhortation made by Lallan Mukhiya, Buttan pierced bhala in the abdomen of Kripal Yadav and pulled it out on pressing his chest with leg, pursuant to which all took to their heels. Similar narrations were made also by Ramesh-war Yadav (PW 2) about overtact assigned to the appellants, as the witness would state that after the appellants came along with others. Tuntun was assaulted by all of them and it was only after Kripal Yadav came for his rescue on exhortation made by Lallan Mukhiya, that Buttan thrust bhala in the abdomen of Kripal Yadav and after he pulled out bhala. all took to their heels. The injured were carried to Sonbarsa Hospital and from there they were referred to Saharsa Hospital where Kripal eventually succumbed to the injuries sustained by him. As for genesis of the incident, the witness would state that the incident followed after the buffalo of Maheshwari Mukhiya and Tuntun Yadav dashed with each other. The other witnessed who has been brought on the witness box to lend assurance to the prosecution allegation, happens to be Ram Pukar Yadav (PW 3) and similar narration as that of P.Ws. 1 and 2 had been made by him about arrival of the appellants along with others at the place of occurrence who began to assault Tuntun Yadav and after Kripal Yadav came for rescue of the former on persuasion made by Lallan Yadav. Buttan thrust bhala in the abdomen of Kripal Yadav who dropped on the ground. Similar narrations were made by these witnesses about Buttan having pulled to the bhala on pressing the chest of the injured with his leg. Both the injured were carried to Saharsa Hospital where statement of Tuntun Yadav was recorded to which he was also a signatory. 7. Similar narrations were made by these witnesses about Buttan having pulled to the bhala on pressing the chest of the injured with his leg. Both the injured were carried to Saharsa Hospital where statement of Tuntun Yadav was recorded to which he was also a signatory. 7. Ram Narain Singh (PW 7) a Police Officer stated to have visited the place of occurrence and recorded the statement of witnesses. The Police Officer stated to have not found blood marks on the place of occurrence though noticed trampled grass at the place of occurrence. He stated to have secured post-mortem report and also the injury report from the doctors, pursuant to which charge-sheet was submitted in the Court. Dr. R.P. Yadav (PW 6) stated to have operated Kripal Yadav who was referred by Sonbarsa Hospital for treatment. The doctor stated to have noticed penetrating wound in his abdomen and in the abdominal cavity there was blood and there was cut mark in the spleen and also there was a small hole in the stomach. Such penetrating wound in the estimation of the doctor was possible by sharp edged weapon like bhala After Kripal succumbed to the injuries sustained by him, autopsy was held by Dr. Sidheshwar Prasad (PW 5) who recorded the following findings in respect of the ante- mortem injuries noticed on the person of the injured : (1) Swelling of oval shape of approximately 2" x 1" on right side of skull. (2) Operated stitched wound on the abdomen of 5" long. On dissection of skull, there was a small haemotoma beneath site of the injury No. 1. The death in the opinion of the doctor was due to shock and haemorrhage. 8. Shyam Kishore (PW 8) was a formal witness who brought some documents on record which have been discussed in the judgment of the court below. This is all the evidence that has been adduced on behalf of the State to lend assurance to the prosecution allegation about guilt of the appellant and others who were put on trial. 9. The defence too examined formal witnesses and also Dr. Jawahar Singh (D.W. 2) and also brought on record volume of documents ostensibly with an object either to suggest animosity between the parties persisting from before or to suggest the alleged interestedness of the witnesses. 9. The defence too examined formal witnesses and also Dr. Jawahar Singh (D.W. 2) and also brought on record volume of documents ostensibly with an object either to suggest animosity between the parties persisting from before or to suggest the alleged interestedness of the witnesses. The defence came with counter accusation against the prosecution, alleging that in the same transaction Buttan and Maheshwari suffered injuries on the persons for which a Police case had been registered which eventually culminated in acquittal of those who were put on trial. 10. Findings of the trial court was sought to be assailed by the learned Counsel for the appellants and it is urged at Bar that only relations were examined by the State entirely to the exclusion of the independent witnesses who could have been competent witnesses of the incident. Past enmity persisting between the parties was also taken to be a ground to assail the finding recorded by the trial Court. Contentions were raised at Bar that the testimony of the witnesses bristled with major contradictions and the prosecution was even guilty of introducing distorted version about the place of occurrence. In quick succession it is sought to be urged that even though there was no coherent statement of the witnesses about assailant of Tuntun Yadav and also there being no medical evidence to lend assurance to the allegations about assault on Tuntun Yadav, finding of guilt has been recorded against Maheshwari Mukhiya and Yogendra Mukhiya suggesting them to be the assailant of Tuntun Yadav and it is urged that on this score alone the finding of the trial Court had to be negatived. 11. As for verdict of guilt recorded by the trial court, finding Buttan Mukhiya guilty under Section 302, IPC and also under Sections 302/34, IPC. since evidences placed on record do suggest Buttan Mukhiya to be the assailant of the deceased who dealt fatal injury finding recorded by the trial Court under Section 302/34. IPC appears to be quite superfluous. As for the evidences on this count, there has been evidences of P.Ws. 1 and 2, 3 and 4 who are ocular witnesses of the incident giving coherent narrations about assault made on Kripal Yadav by Buttan Mukhiya. IPC appears to be quite superfluous. As for the evidences on this count, there has been evidences of P.Ws. 1 and 2, 3 and 4 who are ocular witnesses of the incident giving coherent narrations about assault made on Kripal Yadav by Buttan Mukhiya. The doctor who performed surgical operation on Kripal Yadav, found corresponding injuries on his person and narration made by the witnesses also received corroboration from the doctor who held autopsy over the dead-body of the deceased. As for the alleged variations in the place of occurrence, there has been evidence of Saini Yadav (PW 1) that the occurrence took place on a kachcha road, east to the house of Buttan Yadav. There has been evidence of P.W. 2 that the occurrence took place at about 500 laggas on the kachcha road from Fatehpur Chowk. It has been the evidence of Tuntun Prasad Yadav that while he was abused, they came near the house of Buttan Mukhiya where the occurrence took place and that is also the objective finding of the Police Officer who visited the place of occurrence. As for criticism about exclusion of independent witnesses at trial, not only the evidence of ocular witnesses, but also the objective finding recorded by the Police Officer do unerringly suggest that the witnesses examined at trial had come from the same vicinity where the occurrence took place. Even houses of the appellants and other accused persons are in the same vicinity as has been the evidence of the I.O. Though the Police officer did not find marks of blood at the place of occurrence, it was not unlikely as the Police Officer visited the place of occurrence after lapse of 3 Days of the incident. The Police Officer, as has been stated, also found trampled grass at the place of occurrence which impliedly suggests the commission of violence at the kachcha road which is stated to be the place of occurrence. 12. Contentions were raised at Bar that even though Buttan Mukhiya and Maheshwari Mukhiya suffered injuries on their persons in the same transaction. the injuries suffered by them has not been adequately explained by the prosecution and on that score too the entire prosecution case has to be disbelieved. 12. Contentions were raised at Bar that even though Buttan Mukhiya and Maheshwari Mukhiya suffered injuries on their persons in the same transaction. the injuries suffered by them has not been adequately explained by the prosecution and on that score too the entire prosecution case has to be disbelieved. However, one finds that PW 1 had been narrating before the Court that Buttan and Maheshwari sustained injuries on their persons in the same transaction, though he could not explain as to how they sustained injury on their persons. He stated to have noticed bleeding injuries on the head of Buttan Mukhiya. He would state about Maheshwari too having been hospitalised. Similar had been the evidence of PW 4 about bleeding injury on the head of Buttan Mukhiya. though he could not notice as to how he sustained injuries on his person. While appreciating the contentions raised at Bar on behalf of the appellants, this fact can be noticed that even the injury report in respect of the injuries suffered by Buttan and Maheshwari were placed on the record with the aid of Dr. Jawahar Singh (DW 1) who stated to have examined them. However, it is not without significance to find that the injuries on the person of Maheshwari Mukhiya were simple in nature while one injury on Buttan Mukhiya was caused by sharp cutting weapon and was grievous in nature. The significance of injuries noticed on the person of Buttan and Maheshwari Mukhiya, however, loses much its significance in view of the finding of acquittal recorded by the trial Court, and that apart, this is no longer res integra that even if the injury sustained by the defence in the same transaction is not explained by the prosecution and evidences are cogent and unclinching that would not militate against the bona fide of the prosecution case and reliance on this score can be placed on a decision of the Apex Court of the land reported in the case of Takhaji Hiraji V/s. Thakore Kubersing Chamansing & Ors., 2001 (2) East Cr C 231 (SC) : 2001 (3) PLJR (SC) 52. Reliance was also placed by the State on a decision of this Court reported in the case of Baun Yadav V/s. The State of Bihar, 2002 (1) PLJR 136 : 2001 (3) East Cr C 9 (Pat). 13. However, certain distressing feature cannot remain unnoticed. Reliance was also placed by the State on a decision of this Court reported in the case of Baun Yadav V/s. The State of Bihar, 2002 (1) PLJR 136 : 2001 (3) East Cr C 9 (Pat). 13. However, certain distressing feature cannot remain unnoticed. Though in the early version. Tuntun Yadav saddled Maheshwari Mukhiya. Buttan Mukhiya, Yogendra Mukhiya and Suresh Mukhiya for assaulting him with hard and blunt substance at trial, he made exclusion of Suresh Mukhiya among the assailants, and that apart while others two were suggested to have dealt blows on him at trial he made omnibus accusation about others dealing blows on him with hard and blunt substance. The narrations made by the witnesses at trial was only bald narration without any explicit accusations against others for assaulting him. Similar has been the evidence of P.W. 2 who made omnibus accusation against all about assaulting Tuntun Yadav. Even the evidence of P.W. 3 was similar in nature about assault on Tuntun, without making any explicit accusation against any of them. Narrations made by Saini Yadav (PW 1) was also omnibus without making any explicit accusation against any one for assaulting Tuntun Yadav. and to crown all. though Tuntun Yadav was suggested to have been hospitalised along with Kripal Yadav. there was no finding of the doctor who ever examined him. Even the trial Court at the bottom of paragraph 11 of the judgment, came to the conclusion that Tuntun Yadav was not assaulted by all the accused persons, as was stated in his fardbeyan, rendered a verdict finding Yogendra Mukhiya and Maheshwari Mukhiya guilty under section 323. IPC for assaulting Tuntun Yadav and in our considered opinion the findings recorded by the trial Court under Section 323, IPC and sentence imposed thereunder against appellant Maheshwari Mukhiya and Yogendra Mukhiya was not sustainable and hence the finding and sentence on this score are set aside and appellant Yogendra Mukhiya and Maheshwari Mukhiya are acquitted and are discharged from the liability of bail bond. As has been stated, since Buttan Mukhiya was answerable for the fatal injuries sustained by Kripal Yadav, findings recorded by the trial Court under Section 302. IPC simpliciter did not call for interference. However, his conviction and sentence recorded by the trial Court in respect of appellant Buttan Mukhiya under Section 302/34 appears to be superfluous and is set aside. As has been stated, since Buttan Mukhiya was answerable for the fatal injuries sustained by Kripal Yadav, findings recorded by the trial Court under Section 302. IPC simpliciter did not call for interference. However, his conviction and sentence recorded by the trial Court in respect of appellant Buttan Mukhiya under Section 302/34 appears to be superfluous and is set aside. However, the finding recorded by trial Court against Maheshwari Mukhiya under Section 302/34. IPC did not require interference. 14. Both these appeals are accordingly dismissed with modification, as above. Appellant Maheshwari Mukhiya is shown to be on bail. His bail bonds are cancelled and he is directed to surrender forthwith in the Court below to serve the sentence. Trial Court is also directed to take him into custody forthwith. R.N.Prasad, J. 15 I agree.