Judgment Syed Md.Mahfooz Alam, J. 1. This appeal has been preferred against the judgment dated 5.02.1988 passed by 1st Additional Sessions Judge, Bhagalpur in Sessions Case No.377 of 1988 whereby and whereunder the learned Additional Sessions Judge has convicted appellant nos. 1 to 13 u/s. 302 read with Sec. 149 of the Indian Penal Code (in short, "I.P.C.") and sentenced them to undergo rigorous imprisonment for life. He has further convicted appellant no.13 Arjun Rai under Ss. 307 and 148 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for seven years u/s. 307 of the Indian Penal Code and R.I. for one year u/s. 148 of the Indian Penal Code He has further convicted appellant no.14 Lillo Singh under Ss. 302 and 148 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for life u/s. 302 of the Indian Penal Code and rigorous imprisonment for one year u/s. 148 of the Indian Penal Code He has further been pleased to order that all the sentences passed under different counts against the appellants shall run concurrently. 2. The prosecution case, as per the fardbeyan of P.W. 9 Udit Narayan Singh, son of Raja Ram Singh of village Borwa Tola Kadwa, P.S. Dholbajja, District Bhagalpur recorded by Sub-Inspector of Police Naresh Kumar Sinha (P.W. 10) on 31.7.1981 at 6 P.M. at Dholbajja Police Station in presence of Kamleshwari Sao, Medi Mandal (P.W. 7) and Jageshwar Mandal (P.W. 8), in brief, is that on the same day at about 2.30 P.M. when the informant Udit Narayan Singh was at his house, several persons of Pratapnagar Tola of village Kadwa, namely, Suresh Prasad Singh (Dead), Dinesh Singh (appellant no. 3), Narad Singh (appellant no. 2 ), Nityanand Singh (appellant no.1), Billo Singh, (appellant no. 8), Lillo Singh (appellant no.14), Shiv Charan Singh(dead), Domi Singh (appellant no. 7), Bilo Roy (appellant no.10), Arjun Prasad Roy (appellant no.13), Chano Roy alias Chandradeo Roy (appellant no. 11), Deep Narayan Roy (appellant no.12), Bishembhar Pd. Roy (appellant no. 9) and Deep Narayan Singh (appellant no. 4) came to the field of Kadwa Adarsh High School which field is situated towards north of the school. They were armed with rifle, gun and 303 rifle. As soon as they reached there they fired three shots from rifle and gun in the air. Roy (appellant no. 9) and Deep Narayan Singh (appellant no. 4) came to the field of Kadwa Adarsh High School which field is situated towards north of the school. They were armed with rifle, gun and 303 rifle. As soon as they reached there they fired three shots from rifle and gun in the air. On hearing sound of firing the Informant and other villagers came out from their house and rushed towards the place of firing. The informants nephew Binay Kumar Singh, Brahmdeo Sao and Basudeo Mandal also reached there. In the meantime, accused Suresh Singh (now dead) gave order to kill Binay Kumar Singh, Brahmdeo Sao and Basudeo Mandal saying that abovesaid persons were helping Mahadeo Mandal and Sita Ram Mandal in the Bataidari dispute going with Jageshwar Rai and Sheo Rai. After giving order to kill the abovenamed persons Suresh Singh himself fired two shots from his rifle causing injury to Binay Kumar Singh on his chest who died at the spot then Lillo Singh, appellant no. 14, fired from his rifle causing injury to Brahmdeo Sao who also died at the spot. Thereafter Arjun Rai, appellant no.13, fired from his gun causing injury to Basudeo Mandal, son of Jageshwar Mandal. The motive of the occurrence was that a Bataidari dispute was going on between Mahadeo Mandal and Sita Ram Mandal son of Shivshu Mandal of Borwa Tola of village Kadwa with Jageshwar Rai and Sheo Rai sons of Rameshwar Rai of Pratap Nagar Tola of village Kadwa and the accused persons were of the view that the informant party including the deceased Binay Kumar Singh, Brahmdeo Sao and injured Basudeo Mandal were helping Mahadeo Mandal and Sita Ram Mandal in the said Bataidari dispute. 3. After recording the above fardbeyan of the informant Udit Narayan Singh, S.I. Naresh Kumar Sinha forwarded the fardbeyan to the Officer Incharge of Naugachia Police Station for instituting the case and himself took up investigation of the case. On receipt of the fardbeyan at Naugachia P.S., Dholbajja P.S.Case No.167 dated 1.8.1981 under Ss. 147, 148, 149, 324 and 302 of the I.P.C, and Sec. 27 of the Arms Act was instituted and Sub-Inspector of Police Naresh Kumar Sinha was allowed to continue the investigation. 4. On receipt of the fardbeyan at Naugachia P.S., Dholbajja P.S.Case No.167 dated 1.8.1981 under Ss. 147, 148, 149, 324 and 302 of the I.P.C, and Sec. 27 of the Arms Act was instituted and Sub-Inspector of Police Naresh Kumar Sinha was allowed to continue the investigation. 4. During course of investigation S.I. Naresh Kumar Sinha recorded subsequent statement of the informant and the statements of other witnesses, inspected the place of occurrence, prepared inquest report of the two dead bodies, obtained post mortem reports of deceased Binay Kumar Singh and Brahmdeo Sao alongwith the injury report of injured Basudeo Mandal and after completing investigation submitted charge-sheet against the appellants on the basis of which cognizance was taken and the case was committed to the Court of Session by order dated 26.9.1983 by Sri H.C. Prasad, Sub-Divisional Judicial Magistrate, Naugachia. Thereafter charges were framed against the appellants and they were convicted and sentenced by the impugned judgment, as indicated above. 5. The defence of the appellants was that they have been falsely implicated in this case by Jageshwar Mandal and no occurrence, as alleged by the prosecution, had taken place. According to the defence version, on the alleged date of occurrence, Rameshwar Mandal after forming a mob came and started looting maize crops whereupon people of Borwa Tola protested and then firing took place from both the sides in which Brahmdeo Sao, Binay Kumar Singh of Borwa Tola received gun shot injury and died and then the mob led by Rameshwar Mandal fled away. Further defence is that the occurrence had not taken place near the house of Jaddu Rai, as alleged by the prosecution rather it took place in the maize field of Jageshwar Mandal. According to the defence, in the said occurrence, not a single person of Pratapgarh Tola had taken part and they have been falsely implicated in this case. 6. From perusal of the lower courts records it appears that in order to prove the case, the prosecution has examined altogether eleven witnesses, namely, Brahmdeo Prasad Singh P.W. 1, Bhim Prasad Singh P.W. 2, Mukti Sah P.W. 3, Saruplal Sah P.W. 4, Mohan Singh P.W. 5, Kamleshwari Sah alias Lukho Sah P.W. 6, Medi Mandal P.W. 7, Jageshwar Mandal P.W. 8, Udit Narayan Singh P.W. 9, Naresh Kumar Sinha P.W. 10 and Om Prakash Sinha P.W. 11. Out of the abovesaid witnesses, P.W. 9 Udit Narayan Singh is the informant of this case, P.W. 10 Naresh Kumar Sinha is the Investigating Officer and P.W. 11 Om Prakash Sinha is the doctor who had conducted post mortem examination on the bodies of two deceased. It further transpires that the appellants have also examined three defence witnesses, namely, Basudeo Mandal D.W. 1, Sharda Prasad Singh D.W 2 and Anil Chand Ghose D.W. 3. 7. From perusal of the judgment of the trial court it appears that in convicting the appellants, the trial court has placed reliance upon the testimony of P.Ws.1 to 9 who are said to be the eye-witnesses of the occurrence. The trial court has further come to the conclusion that from the evidence of P.W. 11 Dr. Om Prakash Sinha, the manner of occurrence, as alleged by the prosecution, stands well proved likewise the trial court also held that from the evidence of P.W. 10, the place of occurrence has been established. 8. The above findings of the trial court were vehemently challenged by Mr. Saroj Kumar Tiwary appearing on behalf of the appellants as Amicus Curiae. He has attacked the findings of the trial court, on the following grounds: (1) The names of appellant nos.5 and 6, namely, Kirti Singh and Brahmdeo Singh do not appear in the fardbeyan and only two witnesses had named them during the trial but even then they were convicted. Likewise, appellant no.1 Nitya Nand Singh was named by only two witnesses and the other seven witnesses did not name him but even then he was convicted. (2) Not a single witness of the prosecution had attributed any overt act against appellant nos. 1 to 12 and as such, they should have been acquitted by the trial court holding that they were not the members of any unlawful assembly rather they might be spectators. (3) There is vita! contradiction in the evidence of the prosecution witnesses on the point of place of occurrence and as such, the trial court has wrongly held that the prosecution has succeeded in proving the place of occurrence. (4) In view of non-production of injury report of Basudeo Mandal and non-examination of the said Basudeo Mandal, who had allegedly received firearms injuries at the hands of appellant no. (4) In view of non-production of injury report of Basudeo Mandal and non-examination of the said Basudeo Mandal, who had allegedly received firearms injuries at the hands of appellant no. 13 Arjun Prasad Roy, the trial court has erred on fact by holding that the prosecution has been able to prove the manner of occurrence. On the basis of above arguments, the learned Amicus Curiae has prayed to allow the appeal and acquit the appellants. 9 From perusal of the lower court records and the impugned judgment it appears that to prove the prosecution case, altogether nine eye-witnesses were examined on behalf of the prosecution. As per F.I.R, there is specific case of the prosecution that about 20 to 25 persons of Pratapur Tola of village Kadwa after forming an unlawful assembly and being armed with rifle, gun and other weapons came to the field of Kadwa Adarsh High School and assembled near a Pipal Tree and did three rounds of firing in the air whereupon several persons of Borwa Tola of village Kadwa came out from their respective houses and then on the order of Suresh Singh (now dead), appellant No. 14 Lillo Singh fired from his rifle causing injury to Brahmdeo Sah and appellant 13 Arjun Prasad Roy fired from his gun causing injury to Basudeo Mandal whereas Suresh Singh himself fired from his rifle causing injury to Binay Kumar Singh. It is the specific case of the prosecution that out of three injured, two, namely, Binay Kumar Singh and Brahmdeo Sah died. The Informant who has been examined as P.W. 9 in this case has fully supported the prosecution case as narrated in the fardbeyan (Ext. 3). The evidence of P.W. 9 finds corroboration from the evidence of P.W. 1 Brahmdeo Prasad Singh, P.W. 2 Bhim Prasad Singh, P.W. 3 Mukti Sah, P.W. 4 Saruplal Sah, P.W. 5 Mohan Singh, P.W. 6 Lukho Sah alias Kamleshwari Sah, P.W. 7 Medi Mandal and P.W. 8 Jageshwar Mandal. All the abovesaid witnesses have fully supported the prosecution case that firstly, Suresh Singh gave order to kill Binay Kumar Singh, Brahmdeo Sah and Basudeo Mandal and then he himself opened fire from rifle causing death of Binay Kumar Singh and then appellant no. 14 Lillo Singh fired from his rifle causing death of Brahmdeo Sah. All the abovesaid witnesses have fully supported the prosecution case that firstly, Suresh Singh gave order to kill Binay Kumar Singh, Brahmdeo Sah and Basudeo Mandal and then he himself opened fire from rifle causing death of Binay Kumar Singh and then appellant no. 14 Lillo Singh fired from his rifle causing death of Brahmdeo Sah. There appears no vital contradiction in the evidence of the prosecution version so far as this part of the occurrence is concerned and I am of the view that the learned trial court has rightly believed the evidence of the prosecution witnesses so far this part of the occurrence is concerned. The fact that deceased Binay Kumar Singh and Brahmdeo Sah had received fire-arms injuries during the occurrence is further established from the inquest reports (Exts. 5 and 5/1) which were prepared by P.W. 10 S.I. Naresh Kumar Sinha. The evidence of Dr. Om Prakash Sinha and the two post mortem repotts (Exts. 7 and 7/1) establishes beyond doubt that the deceased Binay Kumar Singh and Brahmdeo Sah had sustained fire-arms injuries and due to the said injuries they died. Thus, I am of the view that there is sufficient reliable evidence on record to come to the conclusion that due to the firing done by Suresh Singh (dead) and appellant no. 14 Lillo Singh, Binay Kumar Singh and Brahmdeo Sah had sustained fire-arms injuries and had died at the spot. 10. It has been argued by the learned Amicus Curiae that there is nothing on record to establish that during the said occurrence Basudeo Mandal had also sustained fire-arms injuries on account of firing done by appellant no. 13 Arjun Prasad Roy from his gun as in this regard no injury report of Basudeo Mandal has been brought on record on behalf of the prosecution and, therefore his submission was that this part of the prosecution case cannot be accepted and the same is highly doubtful. He has also argued that on this score alone the entire prosecution case should be thrown out. 11. It is true that although the witnesses have deposed that during the occurrence Basudeo Mandal had also sustained gun shot injury on account of firing done by appellant no. He has also argued that on this score alone the entire prosecution case should be thrown out. 11. It is true that although the witnesses have deposed that during the occurrence Basudeo Mandal had also sustained gun shot injury on account of firing done by appellant no. 13 Arjun Prasad Roy but no injury report of Basudeo Mandal has been brought on record on behalf of the prosecution rather injury report of Basudeo Mandal was brought on record on behalf of the defence which has been marked as Ext. A and which discloses that Basudeo Mandal had no gun shot injury on his person. It appears that the said Basudeo Mandal was not examined by the prosecution rather he has been examined as D.W. 1 on behalf of the defence. His evidence shows that he is silent on the point of receiving injury either by gun shot or by hard and blunt substance during the occurrence although he has deposed that on the alleged date of occurrence, two persons, namely, Binay Kumar Singh and Brahmdeo Sah had sustained fire-arms injuries at the hands of the members of the unlawful assembly and had succumbed to their injuries. Thus, at best even on the basis of the evidence of D.W. 1 Basudeo Mandal, the prosecution case that the deceased Binay Kumar Singh and Brahmdeo Sah had died due to firing done by Suresh Kumar Singh (dead) and Lillo Singh (appellant no. 14) cannot be discarded and at best some doubt is created about the genuineness of this part of the prosecution story that during the occurrence appellant no. 13 Arjun Prasad Roy had also opened fire as a result of which Basudeo Mandal D.W. 1 had sustained firearms injuries. 12. It is well settled law that it is the duty of the court to take out truth from the falsehood and there is likelihood that the prosecution case that during occurrence appellant no. 13 Arjun Prasad Roy had also caused gun shot injury to Basudeo Mandal (D.W. 1) may not be true but only on the ground that one part of the occurrence is not accepted by the court, therefore the other part of the occurrence should also be discarded on that ground cannot be said to be good and legally accepted principle. 13 Arjun Prasad Roy had also caused gun shot injury to Basudeo Mandal (D.W. 1) may not be true but only on the ground that one part of the occurrence is not accepted by the court, therefore the other part of the occurrence should also be discarded on that ground cannot be said to be good and legally accepted principle. When the evidence on record establishes beyond doubt that Binay Kumar Singh and Brahmdeo Sah had been killed at the hands of Suresh Singh (dead) and appellant No. 14, Lillo Singh there appears no reasonable ground to differ with the finding of the trial court with respect to this part of occurrence. I, therefore, uphold the finding of the trial court that the prosecution has been able to prove the manner of occurrence so far as killing of two deceased, namely, Binay Kumar Singh and Brahmdeo Sah is concerned. 13. It has been submitted by learned Amicus Curiae that the prosectuion has not been able to prove the place of occurrence of this case and there are much discrepancies in the evidence of the prosecution witnesses in this regard. From perusal of the impugned judgment it appears that the trial court has discussed this point at paragraphs 24, 25 and 26 of the judgment and after making full discussion, the trial court has come to the conclusion that the prosecution has been able to prove the place of occurrence of this case. I am of the view that this finding of the trial court appears to be correct in view of the materials available on record and in view of the fact that it cannot be expected that a mob of about 20 to 25 persons will remain static. Since there is categorical statements of practically all the prosecution witnesses that the mob assembled near a Pipal Tree adjacent to the field of Adarsh High School and from there the mob started firing the minor discrepancy in the evidence of the prosecution witnesses with regard to the place of occurrence is not of much importance and therefore I hold that the trial court has rightly held that the prosecution has been able to prove the place of occurrence of this case. Accordingly, I uphold the said finding. 14. Accordingly, I uphold the said finding. 14. Finally it has been submitted by the learned Amicus Curiae that as per the prosecution case, specific overt act has been attributed to three accused only, namely, Suresh Singh (dead), Lillo Singh (appellant no. 14) and Arjun Prasad Roy (appellant no. 13) but no overt act has been attributed to any other accused-appellants. His submission is that the evidence on record shows that the allegation that appellant no. 13 Arjun Prasad Roy had caused fire-arms injuries to Basudeo Mandal D.W. 1 stands falsified from the injury report brought on record on behalf of the defence and also from the deposition of Basudeo Mandal D.W. 1 who has not spoken even a single word that he had received any injury on his person at the time of alleged occurrence either by means of fire-arms or by means of hard and blunt substance. He further submitted that this aspect of the case makes appellant no. 13 Arjun Prasad Roy entitled for giving him benefit of doubt and likewise appellant no. 5 Kirti Singh and appellant no. 6 Brahmdeo Singh whose names do not appear in the F.I.R. and who have been named only by two witnesses deserve to be acquitted. He further submitted that from the very beginning the prosecution case is that on hearing sound of firing the witnesses had arrived at the place of occurrence, therefore, there is every likelihood that other appellants, except appellant no. 14, against whom no overt act had been attributed in the fardbeyan of the informant might have arrived at the place of occurrence on hearing sound of firing and they may be merely spectators but they were wrongly picked up as the members of the mob by the informant and, therefore, appellant nos. 1 to 12 also deserve to be acquitted on this ground also. I am of the view that the argument of the learned Amicus Curiae has got much weight as there is possibility that appellant nos. 1 to 12 against whom no overt act has been attributed either in the fardbeyan or in the evidence of the prosecution witnesses (or if attributed the same were rejected by the trial court) had assembled there at the place of occurrence after hearing the sound of firing without any intention to participate in the occurrence. Under such circumstance, I am of the view that appellant nos. Under such circumstance, I am of the view that appellant nos. 1 to 12 also deserve the benefit of doubt. However, so far as appellant no. 14 Lillo Singh is concerned, I find that there is sufficient evidence on record to come to the finding that on the alleged date of occurrence he alongwith accused Suresh Singh (dead) and others after forming an unlawful assembly and with common object to commit murder of Binay Kumar Singh and Brahmdeo Sah came to the place of occurrence and both the persons opened fire from their respective fire-arms i.e rifle which caused death of Binay Kumar Singh and Brahmdeo Sah, therefore, I hold that appellant no. 14 Lillo Singh has rightly been convicted by the trial court under Ss. 148 and 302/149 of the Indian Penal Code. 15. Having considered all the facts and circumstances of the case, I have come to the conclusion that there is sufficient material on record to uphold the conviction of appellant no.14 Lillo Singh under Ss. 148 and 302/149 of the Indian Penal Code. Accordingly, the conviction and sentence awarded to appellant no. 14 Lillo Singh by the trial court under Ss. 148 and 302/149 of the Indian Penal Code are hereby upheld. I am further of the view that appellant nos. 1 to 13 deserve to be given the benefit of doubt and accordingly, conviction and sentence passed against appellant nos. 1 to 13, namely, Nitya Nand Singh, Narad Singh, Dinesh Singh, Deep Narain Singh, Kirti Singh, Brahmdeo Singh, Domi Singh, Billo Singh, Bishembhar Pd. Roy, Digember Roy @ Bilo Roy, Chandradeo Roy, Deep Narayn Roy and Arjun Prasad Roy under Ss. 302/149 of the Indian Penal Code are set aside and they are acquitted of the charge under Ss. 302/149 of the Indian Penal Code. The conviction and sentence awarded to appellant no. 13 under Ss. 148 and 307 of the Indian Penal Code are also set aside and he is also acquitted of the said charge. Finally, the appeal filed by appellant nos. 1 to 13 is hereby allowed but the appeal filed by appellant no. 14 Lillo Singh is hereby dismissed. Appellant nos.1 to 13 are ordered to be discharged from the liabilities of their bail bonds. The bail bond of appellant no. Finally, the appeal filed by appellant nos. 1 to 13 is hereby allowed but the appeal filed by appellant no. 14 Lillo Singh is hereby dismissed. Appellant nos.1 to 13 are ordered to be discharged from the liabilities of their bail bonds. The bail bond of appellant no. 14 Lillo Singh is cancelled and he is directed to surrender before the court below to serve out the remaining period of his sentence. Shiva Kirti Singh, J. 16 I agree.