Judgment ( 1. ) THIS appeal has been directed by the appellants against the judgment of conviction and sentence passed by the learned 1 Addl. Sessions Judge, in sessions Trial No. 328/1995, convicting the appellants under Section 148 of IPC and sentencing them to suffer R. I. for one year, as also appellant Nayaka for offence under Section 302 of IPC and sentencing him to life imprisonment, and appellants Khalpa, Moosa, Kendu and Shankar under Section 302/149, IPC and sentencing them each to undergo R. I. for life. All the sentences were directed to run concurrently. ( 2. ) BRIEFLY stated the prosecution case is that on 10-4-1995, in the evening at 6. 00 p. m. in village Bav, District Jhabua, deceased Ramsingh along with his son Gyansingh (P. W. 2 ). Ranglibai (P. W. 3) and Dithlibai (P. W. 4)were sitting in front of their house. At that juncture, appellant No. 5 Naika and appellant No. l. Moosa having bow and arrow, reached over there. They told deceased Ramsingh that prior to some days, he killed bullock of Shankar but their father did not complain this act of deceased. When Naika and Moosa were talking with deceased, the appellant No. 2 Khalpa, No. 4 Shankar and No. 3 kendu also reached over there. Khalpa was having bow and arrow and Shankar and Kendu possessing falia. All the five surrounded the deceased Ramsingh and again passed a taunt and told him that as to why he return from Gujarat leaving labour work and they will kill him. Appellant Naika shot arrow, which pierced at left side of the ribs. Deceased fell on the ground. Thereafter appellants shankar and Kendu assaulted him from blunt side of falia (sharp edged weapon)on chest and neck. The wife Ranglibai and daughter of deceased Dithlibai tried to rescue deceased but they were pushed on. The complainant and other witnesses raised alarm on which village Patel Junvansingh reached over there and appellants seeing him ran away. Deceased died on the spot. The F. I. R. was lodged by Gyansingh (P. W. 2) vide Ex. P- 3 recorded by Sub Inspector Damodar gupta (P. W. 6 ). The dead body was sent for post-mortem examination and the same was performed by Dr. Jagansingh (P. W. 1 ). The post-mortem report is Ex. P 2. The Investigative Officer Damodar Gupta (P. W. 6) prepared inquest (Ex. P- 3 recorded by Sub Inspector Damodar gupta (P. W. 6 ). The dead body was sent for post-mortem examination and the same was performed by Dr. Jagansingh (P. W. 1 ). The post-mortem report is Ex. P 2. The Investigative Officer Damodar Gupta (P. W. 6) prepared inquest (Ex. P-7), spot map (Ex. P-5) and also seized controlled earth and blood stained earth from the spot through seizure memo (Ex. P-8 ). After investigation, charge-sheet was filed. The appellants have denied the charges and pleaded innocence whereupon they were put on trail. The prosecution has examined in total six witnesses and got proved 23 documents whereas the appellants have not examined any witness. The appellants have been convicted by the trial Court as mentioned above. ( 3. ) WE have heard the learned counsel for appellants Shri Amitab upadhyaya and learned P. P. Shri G. S. Chouhan for the State and also perused the entire record of the case. ( 4. ) THE conviction of the appellants is based on the ocular account of Gyansingh (P. W. 2), Ranglibai (P. W. 3), Dithlibai (P. W. 4), son, wife and daughter of deceased Ramsingh, respectively. There is consistency about presence and causing injury to deceased Ramsingh by arrow shot by appellant No. 5 Naika whereas the statements of all the three eye witness are contradictory to each other regarding presence, part played by other appellants in the incident. ( 5. ) GYANSINGH (P. W. 2) has stated that all the five accused persons reached at his house together at one point of time and they were having bow, arrow and falia. The appellant Moosa and Khalpa caught the hand and leg of the deceased and appellant Shankar and Kendu dealt falia blow from the blunt side/opposite side on chest and neck of the deceased whereas according to Dr. Jagansingh (P. W. 1), no injuries were found caused by hard and blunt object like blunt side of the weapon falia. Doctor found one penetrating injury at right side of eleventh and twelfth rib and two incised wounds, one on the front side of chin and second on right side of the chin. He also found abrasion, bruise and contusion on chest near clavicle bone. This witness is not able to explain as to how incised injuries were sustained by the deceased. He also found abrasion, bruise and contusion on chest near clavicle bone. This witness is not able to explain as to how incised injuries were sustained by the deceased. This witness has been contradicted in paragraph three with his report (Ex. P-3) and case diary statement (Ex. D-1 ). There is omission in F. I. R. as well as case diary statement about catching hold of leg and hand by appellant Moosa and Khalpa. There is also some contradiction about the situation where the deceased and witnesses were present in front of their house but these contradictions are of no consequence and same will not be fatal to the prosecution case. But this witness has denied "a to A" part of FIR in which it is mentioned that at the initial stage, appellant naika and his brother Moosa reached at his house having bow and arrow and they asked the deceased as to why he killed the bullock of Shankar. Thereafter other three appellants also reached over there and surrounded the deceased. He also denied the fact of saying by the appellants as to why deceased return back from Gujarat and causing injury by Naika by bow and arrow. This contradiction is material and indicate that all the appellants did not reach at the house of the deceased jointly at one point of time and all have also not surrounded the deceased. The fatal blow was given to deceased by appellant No. 5 Naika. Against appellant Moosa and Khalpa in FIR there is no mention of their over tact of catching hold of the leg and hand of the deceased. ( 6. ) RANGLIBAI (P. W. 3), in paragraph two has stated that she was sitting in front of her house with her husband, deceased Ramsingh, son gyansingh (P. W. 2) and daughter Dithlibai (P. W. 4) as well as another son parsingh. At that juncture, appellant Naika reached over there and shot arrow which pierced in the armpit of her husband Ramsingh. Thereafter appellant moosa, Khalpa, Kendu and Shankar reached over there. Appellant Moosa and khalpa caught the hand and leg of deceased and Shankar and Kendu assaulted him by blunt or opposite side of falia, causing injury on neck and chest. The deceased died on the spot. On raising alarm by her, appellants fled away from the spot. Thereafter Juvansingh and Agaria reached over there. Appellant Moosa and khalpa caught the hand and leg of deceased and Shankar and Kendu assaulted him by blunt or opposite side of falia, causing injury on neck and chest. The deceased died on the spot. On raising alarm by her, appellants fled away from the spot. Thereafter Juvansingh and Agaria reached over there. She has also stated that her husband was not having any dispute and without any dispute he was killed by the appellants. In paragraph four, she was confronted with her case diary statement (D. 2) in which it is not mentioned that appellants Shankar and Moosa caught the hand and leg of the deceased. ( 7. ) THIRD child eye witness Dithlibai (P. W. 4), aged 12 years has also stated in paragraph two that deceased Ramsingh, Gyansingh (P. W. 2), ramglibai (P. W. 3), her brother Parsingh and she were sitting in front of her house. Appellant Naika came to their house and shot arrow which pierced below the armpit of deceased. Thereafter appellant Naika put bow in the neck of deceased and caught the neck. At that juncture, other appellants reached over there and appellants Shankar and Kendu assaulted Ramsingh by falia whereas leg and hand of the deceased were caught by appellant Moosa and Khalpa. The deceased died on the spot. She was confronted with her case diary statement (Ex. D-3) in which the fact of catching hold of leg and hand by appellant Moosa and Khalpa is not mentioned and for this material omission, this witness as well as Ranglibai (P. W. 3) and Gyansingh (P. W. 2) failed to assign reasonable and plausible explanation. This witness is directly contradicted by other eye witnesses Gyansingh (P. W. 2) and Ranglibai (P. W. 3) about putting of bow in the neck of deceased by appellant Naika as well as catching hold of his neck. The independent witness Juvansingh (P. W. 5) has not supported the prosecution case. Damodar Gupta (P. W. 6), Sub Inspector, effected the seizure of bow and arrow as well as falia but the same are of no consequence because the F. S. L. report has not been filed by the prosecution and seized bow and arrow as well as falia were of the same which were used by the appellants is not established by the prosecution by getting them identified by the eye witnesses. ( 8. ( 8. ) WE are of the firm view on the basis of overall perusal of the statements of eye witnesses, F. I. R. and medical evidence that the prosecution has utterly failed to prove case against appellants No. 1 to 4 i. e. Moosa, Khalpa, kendu and Shankar. The two incised injuries which could be caused by sharp edged weapon has not been explained by the eye witnesses as to how the same were sustained by the deceased. The overt act of catching hold of hand and leg by Moosa and Khalpa is also missing in F. I. R. as well as in their case diary statements and in view of the statements of Ranglibai (P. W. 3) and Dhitlibai (P. W. 4), at the time of causing injury, bow and arrow was shot by appellant No. 5 Naika. Rest of the appellants were not present. Therefore, appellants No. 1 to 4 could not be convicted with the help of Section 149 of IPC for the act of appellant No. 5 Naika. ( 9. ) HENCE this appeal is partly allowed. The conviction and sentence of the appellants No. 1 to 4, i. e. , Moosa, Khalpa, Kendu and Shankar is hereby set aside. They stand acquitted and appeal of appellant No. 5 Naika is dismissed. His conviction and sentence are affirmed. The appellants No. 1 to 4 are on bail. Their bail bond and surety bond stand discharged. Criminal Appeal parly allowed.