Judgment Shiva Kirti Singh and Syed Md.Mahfooz Alam JJ. 1. This appeal is directed against the judgment and order dated 12th June, 2002 passed by Ad hoc District & Sessions Judge, Fast Track Court No. 1, Saran at Chapra, in Sessions Trial No. 280 of 1992 whereby both the appellants Suresh Singh and Bisheshar Singh, who are brothers, have been convicted of the charge u/s. 302/34 of the Indian Penal Code and sentenced to life imprisonment. The impugned judgment mentions that third named accused Mohan Singh, son of appellant no.1, was found to be juvenile and, therefore, his trial was separated. 2. In this case, fard bayan of P.W. 5 Lalmati Devi was recorded on 6.8.89 at 19.45 hours at Sadar Hospital, Chapra, by S.I. Ranbir Singh of Bhagwan Bazar P.S. In the fard bayan, in brief, she has claimed that at 7.00 a.m. in the morning she heard shouting by appellant no. 1 Suresh Singh coming from his Sahan. On that she came out from her house and saw that the cousin of her husband Kameshwar Singh (deceased) was being assaulted by appellant no. 1 Suresh Singh with wooden stick (Labda) on back, appellant no. 2 Bisheshar Singh with a view to kill struck Kameshwar Singh with a Tanga on the head causing cut injury on the center of the scalp which caused bleeding injury. Then Kameshwar Singh fell down and became unconscious. Thereafter Mohan Singh, son of appellant no. 1, assaulted Kameshwar Singh with lathi. The informant ran and reached at the place of occurrence to help the deceased. On her shouting, ladies from the neighbourhood came and the three assailants ran away. It has further been disclosed that appellant no. 1 Suresh Singh and appellant no. 2 Bisheshar Singh and deceased Kameshwar Singh are brothers and they have two more brothers, namely, Chandraket Singh and Basant Singh and there has been a partition between the five brothers one year earlier. In the Panchayati, it was settled that in lieu of bricks of the house, an amount of rupees six hundred shall be paid by Kameshwar Singh (deceased) to appellant Suresh Singh but in spite of several demands Kameshwar Singh did not pay that money for which appellant Suresh Singh had also approached the husband of the informant Vijay Singh with a request that he should persuade Kameshwar Singh to pay that money. Allegedly few months earlier another brother of appellants Chandraket Singh, who used to live with Kameshwar Singh, was also assaulted but no case was lodged for that occurrence. For these reasons, the three accused persons had allegedly assaulted Kameshwar Singh with a view to kill him, Kameshwar Singh was carried in injured condition by the husband of the informant, Raj Kumar Singh, Bhism Bahadur Singh (P.W. 4) and others to Ekma Govt. Hospital where he was provided treatment by way of first aid and referred to Sadar Hospital, Chapra, where Kameshwar Singh died in course of treatment. 3. Although the Investigating Officer has not been examined in this case but it appears that after investigation he submitted charge-sheet and the dead body had been sent for post-mortem examination. It further appears that some articles were seized in course of investigation. The case of these appellants was committed to the Court of Sessions for trial, wherein they pleaded not guilty to the charge but have been convicted by the judgment and order under appeal. 4. The prosecution in order to prove the charge has examined altogether seven witnesses, whereas, the defence has also examined one witness. It further appears that on behalf of the prosecution, signature of Ram Janam Singh (P.W. 3) on seizure list has been marked as Exhibit-1. Postmortem report, as proved by the Doctor P.W. 7, has been marked as Exhibit-2 and the fard bayan allegedly given by P.W. 5 has been marked as Exhibit-6 with objection because it was not proved by any witness but taken on record as an exhibit only on application filed by the prosecution after the close of defence case. 5. P.W. 1 Phulmato and P.W. 2 Sharnsher Singh have been declared hostile and are of no help to the prosecution. P.W. 3 Ram Janam Singh is a formal witness, who has signed on the seizure list but has deposed that his signature was taken on that paper by the Police Officer but no seizure had been made in his presence. The name of P.W. 4 Bhism Bahadur Singh finds mention in the fard bayan as one of the villagers, who carried the injured Kameshwar Singh to Ekma Hospital, but he has been tendered and has not given any positive statement to support the prosecution case. He has stated in his cross-examination that he does not know anything about the occurrence. The name of P.W. 4 Bhism Bahadur Singh finds mention in the fard bayan as one of the villagers, who carried the injured Kameshwar Singh to Ekma Hospital, but he has been tendered and has not given any positive statement to support the prosecution case. He has stated in his cross-examination that he does not know anything about the occurrence. The only material prosecution witness appears to be P.W. 5 Lalmati Devi, the informant, and P.W. 6 Geeta Devi wife of Chandraket Singh and P.W. 7 Dr. Raj Bali Singh, who conducted autopsy on the dead body of the deceased and has proved the post-mortem report. 6. Defence has examined Chinta Devi wife of appellant Suresh Singh as D.W. 1. She has claimed to have sustained an injury in an occurrence which took place on the alleged date itself at the hands of husband of the informant Lalmati Devi. She has further claimed that in that very occurrence Kameshwar Singh received lathi injury on the head given by the son of the informant. She has claimed that her statement was recorded by the Investigating Officer and her injury report for her treatment at Ekma Hospital for one week was also given to the Investigating Officer. She has produced a photo copy of the injury report which has been marked- X for identification. 7. Certain glaring and important facts of this case are worth noticing. Both the appellants are brother of the deceased. The occurrence took place allegedly just out side the house where the appellants, the deceased and their other two brothers used to reside and their lands had already been partitioned one year earlier. The deceased was married but for the alleged occurrence neither his brothers, father nor his wife lodged the case at the initial stage or later came forward to support the case. The death of the deceased on account of injury on head is not in dispute but the only issue is whether the informants version is worth acceptance and whether it has been reliably supported by P.W. 6 Geeta Devi wife of Chandraket Singh, a brother of the appellants as well as of the deceased. 8. On careful perusal of evidence of the informant Lalmati Devi, P.W. 5 it is found that she has not proved her fard bayan or thumb impression on the fard bayan. 8. On careful perusal of evidence of the informant Lalmati Devi, P.W. 5 it is found that she has not proved her fard bayan or thumb impression on the fard bayan. She has abandoned the alleged motive that assault took place because rupees six hundred was due from the deceased to appellant no. 1 Suresh Singh. Even P.W. 6 Geeta Devi has not supported such motive. No one has stated the exact subject of dispute between the brothers which allegedly led to the occurrence. Only a vague statement has been made in the Court that the occurrence took place due to the dispute over land when in the fard bayan it has been asserted that their lands had already been partitioned one year earlier. In the fard bayan it was alleged that on hearing the shouting of Suresh Singh the informant came out of the house and she first saw appellant Suresh Singh assaulting the deceased on the back with a piece of wood (Labda). In court, she has claimed that she was already at Darwaza and she saw verbal exchange between the deceased and the accused persons and on the orders of Suresh Singh, Bisheshar Singh hit Kameshwar Singh on the head with a Tanga. Even P.W. 6 has not supported the earliest version that there was any hulla made by appellant Suresh Singh which attracted people from the neighbourhood. However, the informant has deposed in court that after assault by Tanga Kameshwar Singh fell down and then Mohan Singh and appellant Suresh Singh began to assault him with lathi and Labda respectively. Assault on back was omitted clearly because the doctor found no injury on the back of the deceased. It is further noticed that according to P.W. 5 the informant, she also resided in the same house which was shared by the deceased and his brothers. It has come out in the evidence of P.W. 6 as well as D.W. 1 that informant, resides in another house which appears to be at a distance of 10-12 laggis. P.W. 6 has further made a categorical statement that informant does not belong to the family and branch of the deceased or the accused persons. P.W. 6 has deposed that she was washing rice at the main Darwaza of the house from where she saw the assault. She immediately rushed and found Kameshwar Singh unconscious. P.W. 6 has further made a categorical statement that informant does not belong to the family and branch of the deceased or the accused persons. P.W. 6 has deposed that she was washing rice at the main Darwaza of the house from where she saw the assault. She immediately rushed and found Kameshwar Singh unconscious. She has stated that at that time no body had reached the place of occurrence where she was the only person present alongwith the accused persons, who fled away soon thereafter. She has thus denied even the presence of the informant at or near the place of occurrence soon after the occurrence. As per unchallenged statement of D.W. 1, the informant P.W. 5 and P.W. 6 are related to each other as cousin sisters. 9. On careful appreciation of evidence of P.W. 5 Lalmati Devi, informant, it is found that the version of the occurrence given by her is not supported by medical evidence. P.W. 7 Dr. Raj Bali Singh has deposed to the effect that the deceased had one lacerated wound involving the mid scalp about 2-1/2" x 1/4" x 1/2" causing fracture of both parietal bones with clot underneath. Laceration of the brain matter in the same area was also detected. The only ante-mortem injury on the deceased was an abrasion on the left knee about 2-1/2" x skin deep. In the opinion of the doctor, the injuries had been caused by hard and blunt substance. It is not the case of the prosecution or any of the witness that the Tanga (axe) which is a sharp cutting weapon was not used in the normal manner but in a different way so that it may cause injury like hard and blunt substance. Further the abrasion on the left knee could easily have been caused by fall and only such abrasion does not support the claim of the informant that the deceased was assaulted with Labda and lathi by appellant no. 1 Suresh Singh and another co-accused Mohan Singh respectively. This contradiction between the version of the occurrence given by the informant vis-a-vis the medical evidence coupled with the false claim made by the informant that she resides in the same house as the accused persons creates doubt regarding her claim of being an eye witness of the alleged occurrence. 10. 1 Suresh Singh and another co-accused Mohan Singh respectively. This contradiction between the version of the occurrence given by the informant vis-a-vis the medical evidence coupled with the false claim made by the informant that she resides in the same house as the accused persons creates doubt regarding her claim of being an eye witness of the alleged occurrence. 10. So far as the supporting witness P.W. 6 Geeta Devi is concerned, she is a female member of the family of deceased and the accused persons and had she actually witnessed the occurrence, she was expected to initiate the criminal proceeding by lodging the case instead of a lady from another neighbouring house. In the fard bayan, the presence of Geeta Devi as a witness is nowhere mentioned. Her claim that she was washing rice on the main Darwaza does not inspire confidence becuase such work related to cooking of food is not done by the ladies at the main Darwaza but inside the house as per usual practise in rural house holds. The assault on the deceased was apparently a brief one because significant injury was only on the head. In such circumstances, it was unlikely that the lady inmates of the house could be able to come out and see the actual assault. 11. The aforesaid discussions in respect of two witnesses on which the prosecution has placed reliance for conviction shows that their claim of being eye witnesses is not free from doubt. In such a situation, non-examination of wife of the deceased, any of the brothers or father of the deceased also creates doubt regarding the allegation levelled by a lady of another house and supported only by another lady who has been shown by the defence witness to be related to the informant. 12. In the fard bayan there is categorical statement that the injured was brought to Ekma Govt. Hospital and was given treatment thereby way of first aid and then he was shifted to Sadar Hospital, Chapra, on medical advice. But in course of deposition in court an attempt has been made to suppress this earliest version and it has been claimed that the doctors gave no hope and, therefore, the injured was taken to Chapra Sadar Hospital. Hospital and was given treatment thereby way of first aid and then he was shifted to Sadar Hospital, Chapra, on medical advice. But in course of deposition in court an attempt has been made to suppress this earliest version and it has been claimed that the doctors gave no hope and, therefore, the injured was taken to Chapra Sadar Hospital. There appears some substance in the claim of the defence that the earliest injury report has not been brought on record by the prosecution because that would have also not supported the manner of occurrence alleged by the prosecution. It has further been submitted that P.W. 6 has been subjected to many questions regarding her earlier statement u/s. 161 of the Code of Criminal Procedure made before the I.O., particularly with regard to her claim that she had gone with the injured to Ekma Hospital but the contradictions could not be brought on record because the I.O. was not examined by the prosecution and this caused prejudice to the defence. 13. On careful consideration of all the facts and circumstances and particularly in view of the doubt regarding claim of the informant, and P.W. 6 that they saw the occurrence as an eye witness, it does not appear safe to hold that the occurrence took place in the manner alleged by the prosecution and that the appellant Suresh Singh assaulted the deceased by Labda, appellant Bisheshwar Singh assaulted the deceased with Tanga (axe) on the head of the deceased and Mohan Singh committed assault by lathi. 14. In the facts and circumstances of the case, both the appellants deserve benefit of doubt. They are acquitted accordingly. The appeal of both the appellants is allowed. Since appellant no. 1 Suresh Singh is on bail, he shall stand discharged from the liabilities of his bail bond. Appellant no. 2 Bisheshar Singh is said to be in jail custody. He should be released forthwith if not required in connection with any other case.