Judgment Shiva Kirti Singh and S.M.M.Alam JJ. 1. Both the appeals have been heard together as they arise out of the same judgment dated 21st December 1987 passed by the learned Additional Sessions Judge, Madhepura in Sessions Case No. 28/83 whereby all the four appellants of Criminal Appeal No. 87/ 1988 and the three appellants of other appeal have been convicted under Sec. 302 read with Sec. 34 of the Indian Penal Code. By an order of the same date, they have been awarded imprisonment for life for the said offence. This judgment shall govern both the appeals. 2. The prosecution case, as disclosed in the fardbeyan of the informant Sukhdeo Chaudhary (P.W.7), in brief, is that on 3.7.1983 at about 9.00 A.M. the informant was returning from Paschim Bahiyar after inspecting his fields. His cousin brother Kamlu Choudhary (deceased) was in front of him at a distance of 200 yards. He was also returning after seeing his fields. When Kamlu Choudhary reached near the house of accused Lutan Sharma and was on the road situated towards north then 8-9 persons variously armed came out from between the houses of Lutan Sharma and Sarjug Sharma, They caught Kamlu Choudhary on the road and pulled him towards south behind the house of Sarjug Sharma. The informant ran and saw these seven appellants and two others, namely, Mahendra Sharma and Bindeshwari Sharma (both are absconding). They had thrown Kamlu Choudhary down on the Parti land adjacent to the west of house of Gujai Sharma. Lutan Sharma assaulted Kamlu Choudhary on the neck with Dabia. The informant wanted to prevent them by going closer but he was threatened by the daughter of Sarjug Sharma and daughter of Gujai Sharma, who were having spades in their hands, therefore, the informant stepped back and saw Gujai Sharma assaulting Kamlu Chaudhary with farsa. Kamlu Chaudhary started throwing his hands and legs and writhing in pain. The informant raised bulla upon which Rajendra Chaudhary (P.W.3), Sant Kumar Yadav (P.W.2), Sk. Shakur (P.W.4), Md. Ibrahim (P.W.5), and Gajendra Choudhary (P.W.6) arrived. On seeing the witnesses, the accused persons dragged Kamlu Choudhary from the place of assault to the Angan (courtyard) of Gujai Sharma through a passage between the houses of Musai Sharma and Gujai Sharma. The informant raised bulla upon which Rajendra Chaudhary (P.W.3), Sant Kumar Yadav (P.W.2), Sk. Shakur (P.W.4), Md. Ibrahim (P.W.5), and Gajendra Choudhary (P.W.6) arrived. On seeing the witnesses, the accused persons dragged Kamlu Choudhary from the place of assault to the Angan (courtyard) of Gujai Sharma through a passage between the houses of Musai Sharma and Gujai Sharma. According to the informant, the deceased was lying in the same courtyard and Gujai Sharma started a fire in the northern portion of his house and fled away with two co-accused, who were his Samadhis towards west north. Other accused also escaped in different directions and they could not be caught because they were having weapons in their hands. According to the informant, the reason for the occurrence was that deceased Kamlu Chaudhary had given money on loan to accused Sarjug Sharma, Gujai Sharma, Deo Narain Sharma and Lutan Sharma. He used to demand that money from the accused persons and recently towards adjacent east to the house of Gujai Sharma and Sarjug Sharma, the deceased had planted Sheesam tree on the western ridge of his land and that had annoyed the accused persons. 3. The fardbeyan of the informant was recorded by the police near the place of occurrence on the same date at 10.30 A.M. The Investigating Officer, Shiv Nath Yadav (P.W.11) inspected the place of occurrence, took charge of the dead body from Angan of the concerned accused persons, prepared the inquest report and sent the dead body for post mortem examination. He prepared a sketch map of the place of occurrence which has also been exhibited as Exhibit 7. After recording the statements of the witnesses and completing investigation he submitted chargesheet against the accused persons. Cognizance was taken of the offence and all the seven accused-appellants were committed to the Court of Session. They pleaded not guilty of the charges framed against them and after trial they have been convicted and sentenced by the judgment and order under appeal, noticed earlier. 4. The prosecution in order to prove its case has examined altogether 11 witnesses. P.W.1 Abhinandan Yadav is a formal witness, who has proved the formal F.I.R. as Exhibit 1, P.W.2 Sant Kumar Yadav, P.W.3 Rajendra Choudhary, P.W.4 Sk. Shakur, P.W.5 Md. Ibrahim and P.W.6 Gajendra Choudhary are named witnesses in the first information report. 4. The prosecution in order to prove its case has examined altogether 11 witnesses. P.W.1 Abhinandan Yadav is a formal witness, who has proved the formal F.I.R. as Exhibit 1, P.W.2 Sant Kumar Yadav, P.W.3 Rajendra Choudhary, P.W.4 Sk. Shakur, P.W.5 Md. Ibrahim and P.W.6 Gajendra Choudhary are named witnesses in the first information report. They have claimed to be eye-witnesses of the relevant part of the occurrence and have supported the prosecution case with respect to time, place and manner of the occurrence. P.W.7 Sukhdeo Choudhary is the informant who has supported the prosecution case, as alleged by him in the fardbeyan. The noticeable improvement made by the informant in respect of the manner is in paragraph 2 of his deposition where he has added that at the time of assault by Lutan Sharma with Dabia and by Gujai Sharma with farsa, the other accused persons had engaged themselves in holding either the hand or leg etc. of Kamlu Chaudhary. 5. P.W.8 Madan Ram has claimed to be a hear-say witness. He deposed that he heard regarding killing of Kamlu Choudhary by accused persons from Sant Kumar Yadav (P.W.2) and then he went to the place of occurrence and wanted to go in the Angan but he was not allowed to do so. He has further deposed that the dead body could be recovered only when the police arrived. P.W.9 Dr. J.B. Singh held autopsy on the dead body of the deceased Kamlu Choudhary. He has proved the Post Mortem Report as Exhibit 3. According to the said report, the deceased has sustained as many as 14 injuries on his person. Almost all injuries were of sharp cutting weapon except injury no.12 which was an injury on left arm, of the dimension 2" x 1" x bone deep which appeared to be by a penetrating weapon as per opinion of the doctor. The injuries in the ordinary course of nature were sufficient to cause death and time elapsed since death till holding of the post mortem examination on 4.7.1983 at 1.30 P.M. was opined to be within 36 hours, P.W.10 Baleshwar Singh is a formal witness who has proved a protest petition of the informant Sukhdeo Chaudhary as Exhibit 4. P.W.11 Shiv Nath Yadav is the Investigating Officer. P.W.11 Shiv Nath Yadav is the Investigating Officer. Besides proving the fardbeyan as Exhibit 5 he has also proved the inquest report and rough sketch map of the place of occurrence. In his deposition he has described in detail the entire place of occurrence. He found trampling mark as well as blood in sufficient quantity on the Parti land where the deceased was allegedly taken from the road and assaulted. He also found dragging mark in the Gali between two houses leading to the Angan (courtyard) of Gujai Sharma and Sarjug Sharma. He found the dead body kept in the Angan. Towards north of the Angan he found part of the house burnt and only the Tatti on the north was left in half burnt condition. He also found small plants near the place of assault whose upper part had been cut by some sharp weapon. Thus, the objective finding of the Investigating Officer fully supports the place of occurrence, as alleged by the prosecution. 6. The defence has not examined any witnesses but a certified copy of the ordersheet of a complaint petition bearing No. 380 (C)/83 has been taken on record as Exhibit-9. This shows that accused Sarjug Sharma filed a complaint in the court of the Chief Judicial Magistrate, Madhepura while he was in jail custody in connection with the present case i.e. Murliganj (Kumarkhand) P.S. Case No. 179/83. On 19.7.1983 that complaint case was placed for enquiry under sec. 202 of the Code of Criminal Procedure and since on various dates no witness was produced, the complaint case was dismissed on 6.4.1984 under Sec. 203 of the Cr.P.C. Apparently, Exhibit 9 related to some defence on behalf of the accused persons but they have not led any material in support of any counter case. Exhibit 9 appears to have been placed on record by the prosecution to expose that a defence case had been dismissed due to lack of any evidence produced during the enquiry. 7. From the trend of cross-examination it appears that only defence of the accused persons is of false implication but there is no explanation suggested for presence of the dead body of the deceased in the Angan of some of the accused persons. 7. From the trend of cross-examination it appears that only defence of the accused persons is of false implication but there is no explanation suggested for presence of the dead body of the deceased in the Angan of some of the accused persons. Even in course of arguments, learned counsel for the appellants has submitted that the entire prosecution case should be disbelieved because it appears absurd that after assaulting the deceased behind their house, the accused persons would carry the dead body in their courtyard (Angan). However, there is no suggestion or arguments which may persuade the Court to doubt time and place of occurrence. The witnesses are consistent regarding time of the occurrence as well as the place where the deceased was assaulted. Even the objective findings of the Investigating Officer, as noticed earlier, support the prosecution case in respect of the place of occurrence. 8. The submission that the prosecution case disclosing taking of the dead body in the Angan of the accused persons should be disbelieved on the ground of absurdity does not appear to have any substance. The exact motive of removing the dead body from the actual place of occurrence must be known only to the accused persons and the prosecution cannot find out such motive. However, this fact was disclosed at the earliest opportunity and in the fardbeyan it was indicated that probably the accused persons wanted to destroy the dead body by putting on fire one of their rooms towards north. Whatever be the real motive, attempt by miscreants to destroy the dead body or disturb the evidence at the place of occurrence is not uncommon and there is every likelihood that the dead body might have been carried inside the house to show the deceased as an assailant and unwanted intruder. Be that as it may, on this ground it is not found possible to disbelieve the entire prosecution case. 9. The other submission advanced on behalf of the appellants is that only two of the accused persons, namely, appellants Lutan Sharma and Gujai Sharma have been attributed with specific weapon-dabia and farsa, respectively and only they are attributed with specific assault upon the deceased. It was highlighted that in the hands of other five appellants no weapon has been alleged either in the fardbeyan or even during deposition in Court by the material witnesses. It was highlighted that in the hands of other five appellants no weapon has been alleged either in the fardbeyan or even during deposition in Court by the material witnesses. On the basis of such facts it has been submitted that manner of occurrence alleged by the prosecution has been exaggerated to implicate other five appellants besides Lutan Sharma and Gujai Sharma because they happened to be closely related. Many of them have common courtyard and they all belong to Sharma Toll. 10. In context of the aforesaid submission we have examined the evidence on record with care and it has been found that the witnesses are consistent regarding the weapon used by appellants Lutan Sharma and Gujai Sharma as well as assault by them upon the deceased. The post mortem report and the medical evidence also support the prosecution case and clearly the deceased has died of injuries inflicted upon him by these two appellants Lutan Sharma and Gujai Sharma at the time and place alleged by the prosecution. Their conviction for the offence under Sec. 302/34 of the Indian Penal Code is not found to suffer from legal or factual error so as to warrant any interference. 11. In so far as the other five appellants are concerned, on close scrutiny of the evidence of the material witnesses it is found that in the fardbeyan the informant had made an omnibus allegation that all the accused persons dragged Kamlu Choudhary (deceased) from the road towards back of their house and there on the Parti land he was thrown down by all the accused persons. Thereafter in course of assault by Dabia and Farsa by appellants Lutan Sharma and Gujai Sharma no role has been assigned to the remaining five appellant. In the earliest version there is no allegation that they helped in the murder by catching hold of the legs and hands of the deceased. It is further found that none of the witnesses claimed to have heard any cry of help from Kamlu Choudhary (deceased) which was natural if he had been dragged from the road to the Parti land on south of the road and behind the house of the accused persons. It is further found that none of the witnesses claimed to have heard any cry of help from Kamlu Choudhary (deceased) which was natural if he had been dragged from the road to the Parti land on south of the road and behind the house of the accused persons. Hence, there is sufficient reason to doubt the allegation that all the four appellants of Criminal Appeal No. 87 of 1988 i.e. Deo Narayan Sharma, Butan Sharma, Bouku Sharma and Bechan Sharma as well as appellant Sarjug Sharma of Criminal Appeal No. 121 erf 1988 participated in the occurrence and that they shared the common intention of causing death of the deceased. A close perusal of 14 injuries found on the body of the deceased also shows that sharp weapons were freely used on the body of the deceased by both the assailants causing serious cut injuries. In course of such severe assault, it is not possible for the five other persons to be close to the body of the deceased and pin him down without taking serious risk of sustaining injuries by farsa. Even the Investigating Officer in course of inspection of the place of occurrence has found that some small plants were cut from the top near the place of occurrence. This also shows that the weapons like farsa and dabia were used in free manner to assault the deceased and that had resulted in cutting of some of the small plants near the place of occurrence. All these facts create a doubt regarding involvement of the aforesaid five appellants in the assault upon deceased Kamlu Choudhary which caused his death. Hence, we are inclined to agree with the submission advanced on behalf of the appellants that aforesaid five appellants deserve to be given benefit of doubt. 12. In view of the aforesaid discussions, the appeal of appellants Lutan Sharma and Gujai Sharma (appellant, nos. 2 and 3 in Cr. Appeal No. 121/88) is dismissed and their conviction and sentence as awarded by the trial court is confirmed. The appeal of remaining appellant nos. 1 to 4 (Criminal Appeal No. 87/1988) and Sarjug Sharma (appellant no.1 of Criminal Appeal No. 121/ 1988) is allowed. They are acquitted of the charge under sec. 302/34 of the Indian Penal Code on account of benefit of doubt. They shall stand discharged from the liabilities of their bail bonds. The appeal of remaining appellant nos. 1 to 4 (Criminal Appeal No. 87/1988) and Sarjug Sharma (appellant no.1 of Criminal Appeal No. 121/ 1988) is allowed. They are acquitted of the charge under sec. 302/34 of the Indian Penal Code on account of benefit of doubt. They shall stand discharged from the liabilities of their bail bonds. The bail bonds of appellants Lutan Sharma and Gujai Sharma shall stand cancelled. They should be taken into custody forthwith to serve out the remaining period of sentence in accordance with law.