Judgment Chandra Mohan Prasad and Dharnidhar Jha JJ. 1. A total number of 11 accused persons were put on trial in Sessions Trial No. 64 of 1991/146 of 2001 out of whom an accused named Kundan Mahto @ Rajesh Mahto died during the pendency of the trial before Fast Track Court No. 1, Siwan and as such the proceedings as against Kundan Mahto @ Rajesh Mahto was dropped. On conclusion of the trial which remained against the ten accused persons four accused persons were acquitted by the judgment dated 15.6.2002 passed by the abovenoted court in the abovenoted case and the other appellants before us were held guilty of committing offence under Sections 302 and 149 of the Indian Penal Code and each o1 them were directed to suffer rigorous imprisonment for life. Besides, the appellants were directed to pay a fine of Rs. 1,000.00 only also and were directed to suffer R.I. for one year in case of non-payment of the fine imposed against each of them. In addition to the above sentences the two appellants, namely, appellant No. 5 Sheo Shankar Mahto and appellant No. 6 Ramanand Mahto were held guilty also of committing an offence u/s. 148 of the Indian Penal Code and each of them was directed to suffer further period of rigorous imprisonment for one year. As regard appellants no. 1 to 4, i.e., Samrit Mahto, Bigu Mahto, Kapurchand Mahto and Jaglal Mahto, they were also convicted for an offence u/s. 147 of the Indian Penal Code and each of them was directed to suffer Rigorous Imprisonment for another term of one year. The sentences of imprisonment were directed to run concurrently. The above judgment and order of conviction and sentences have been assailed before us in the present Criminal Appeal. 2. The prosecution case is based on Ext. 2, the fardbayan of Phool Kunwar Devi. (P.W. 2) who happened to be the wife of the deceased Kashinath Mahto. The sentences of imprisonment were directed to run concurrently. The above judgment and order of conviction and sentences have been assailed before us in the present Criminal Appeal. 2. The prosecution case is based on Ext. 2, the fardbayan of Phool Kunwar Devi. (P.W. 2) who happened to be the wife of the deceased Kashinath Mahto. It was stated by the informant in her fardbayan recorded at about 5.30 A.M at the Darwaja of one Ishu Miyan, examined as P.W. 6 in the case, that the deceased Kashinath Mahto had gone to Maharajganj market and came back from there at about 7-8 P.M. on the day of the occurrence, when four appellants, namely, Samrit Mahto, Bigu Mahto, Kapurchand Mahto and Jaglal Mahto came to the house of the deceased and called him and also hurled abused upon the deceased and stated that they were to teach the deceased a lesson. Thereafter, the deceased was caught by the abovenoted four appellants and taken towards north from his house. P.W. 2 the informant stated that she and her son Vinay Mahto (P.W. 1) followed the accused persons and pleaded with them to release the deceased but they brought the deceased near the house of P.W. 6 Ishu Miyan on the road where the remaining two appellants Sheo Shankar Mahto & Ramanand Mahto were standing with the acquitted accused persons and the one who died during the pendency of the trial. The accused persons were armed with lathi and bhala. Seeing the husband of the informant, appellants Sheo Shankar Mahto and Ramanand Mahto dealt blows with their respective bhalas on the head of the deceased. The other accused persons dealt lathi blows to the deceased. The deceased was seriously injured on his head and fell down and died instantaneously. It was alleged that the incident was witnessed by Hari Mahto (not examined), Bilash Mahto (P.W. 5), Kanhai Manjhi (P.W. 7), Inder Manjhi (not examined) Raghuwar Manjhi (P.W. 8) and others who had raised the cries after seeing the occurrence. 3. As regard the motive of the occurrence, it was alleged that the accused persons were demanding money from the deceased for taking toddy and not getting the same, had committed the occurrence. 3. As regard the motive of the occurrence, it was alleged that the accused persons were demanding money from the deceased for taking toddy and not getting the same, had committed the occurrence. The occurrence, as may appear from the fardbayan, had taken place at about 7-8 P.M. at 10.5.1990 whereas the fardbayan (Ext.-2) was recorded at 5.30 A.M and in order to explaining the delay in making the statement, the lady informant (P.W. 2) stated that she being a lady and being all alone in her house could not go to the police station in the night and as such was giving her statement on the next day. 4. On recording of Ext.-2, the fardbayan, the same appears transmitted to the police by the Officer-in-Charge of Daraundha P.S. and on that basis the FIR of Daraundha P.S. Case No. 53 of 1990 under Sections 302 etc. of the Indian Penal Code was drawn up. The FIR has been marked as Ext. 3. It appears from the record that the investigation was taken up by S.I. Y.N. Singh (not examined) and on completion of the investigation he submitted charge-sheet sending up the 11 accused persons for their trial which ultimately resulted in the judgment and order of conviction as also of acquittal as indicated in the very first paragraph of the present judgment. 5. In support of the charges the prosecution examined nine witnesses. P.W. 1 Vinay Mahto the son of the informant was examined as an eye-witness so was his mother Phulkuwar Devi, the wife of the deceased and the informant who was examimed as P.W. 2. Dr. Sudhir Kumar Aman held postmortem examination and prepared the report in that behalf which has been marked Ext.-1, was examined as P.W. 3. P.W. 4 Kashinath Mishra appears a formal witness having proved the writings of the fardbayan and the FIR to be in the hands of the investigating officer as also of A.S.I. Shambhunath Singh and as such the fardbayan and the FIR were marked Exts.-2 and 3 respectively. So far as the remaining five witnesses are concerned they all turned hostile and not supporting the prosecution case and giving one line evidence during their examination-in-chief that they did not have any knowledge about the occurrence. So far as the remaining five witnesses are concerned they all turned hostile and not supporting the prosecution case and giving one line evidence during their examination-in-chief that they did not have any knowledge about the occurrence. It appears that P.W. 5 was not declared hostile as per the prevailing practice in courts, but his evidence in examination-in-chief indicates as if the prosecutor had been permitted to cross-examine the witness Vilash Mahto to his previous statement made before the I.O. of the case. 6. The defence as appearing from suggestions given to P.Ws. 1 and 2 was of non-participation by the appellants and other accused persons in the commission of the offence and also of false implication. It was further suggested to the two witnesses that in fact no one had seen the occurrence and that the dead body was found in a Chaur subsequently. No one knew or had doubt as to how the deceased happened to die and when P.Ws. 1 and 2 learnt about the death of the deceased in the morning they falsely implicated the appellants and others on being tutored. This also appears from paragraph 17 and paragraph 18 of P.W. 2. The defence did not examine any witness in support of their pleas and relied upon the materials which were brought on record by examination of the prosecution witnesses. 7. Sri Abdul Manan Khan has appeared for appellant Sheo Shankar Mahto and he submitted that the motive which was alleged by the prosecution for commission of the offence appears not established. The evidence of P.Ws. 1 and 2 is so conflicting to each other on material points as to giving rise to inference as if they had not seen the occurrence and were making their statement out of imagination. It was further contended that the manner of assault which was alleged in the fardbayan was changed as regards appellant Ramanand Mahto and that too does not appear corroborated by the medical evidence. Besides, there was a delayed report about the occurrence, the same having taken place at 7-8 P.M. on the previous day of the report. It was next contended that the informant and her son examined as P.Ws. 2 and 1 respectively completely negated the presence of persons cited as the witness or witnesses to the occurrence in the fardbayan by introducing new names. It was next contended that the informant and her son examined as P.Ws. 2 and 1 respectively completely negated the presence of persons cited as the witness or witnesses to the occurrence in the fardbayan by introducing new names. But, those persons who were claimed to be eye-witnesses to the occurrence by the P.Ws. 1 and 2 were also not examined. The I.O. was not examined to the prejudice to the defence in probabilising its defence as it was precluded from the establishing that the dead body was found at a place other than the place where the occurrence was alleged taking place. The next contention was that the purpose of the deceased for going to Maharajganj appears contradicted by the evidence of P.Ws. 1 and 2. 8. Sri M.N. Parbat appeared before us for appellants 1 to 4 and he repeated the same argument and by referring to the same materials appearing from the evidence of the witnesses. Similar were the submissions of Sri Anirban Kundu who appeared before us for appellant Ramanand Mahto and adopted the similar line of arguments and made the same criticism of the evidence as was done by the two other counsel appearing for the other appellants. 9. Sri Lala Kailash Bihari Pd., the learned Addl. P.P. supported the judgment and contended by placing the provision of Section 149 of the Indian Penal Code that even if an accused had not committed an act and if it is shown that he was sharing the common object of the unlawful assembly, the court was justified in recording his conviction by virtue of Sec. 149 of the Indian Penal Code . The learned APP stressfully submitted that the evidence of P.Ws. 1 and 2 establishd the charges beyond any shade of doubt and the convictions and sentences were justifiably inflicted. 10. We have considered the contentions of the counsel for the appellants and the State with all seriousness they deserved. As regards the motive of the occurrence it was alleged that the accused persons were demanding money for taking toddy. The learned counsel for the appellants referred to a single line of evidence of P.W. 2 that she had not seen the accused persons taking toddy. We are of the view that particular line could not be sufficient to negate the motive that the accused persons might not have demanded any money from the deceased. The learned counsel for the appellants referred to a single line of evidence of P.W. 2 that she had not seen the accused persons taking toddy. We are of the view that particular line could not be sufficient to negate the motive that the accused persons might not have demanded any money from the deceased. However, purpose of the deceased for going to Maharajganj as per the fardbayan does not appear definitely indicated. P.W. 1 the son of the deceased has stated that the deceased had gone to execute some sale deed for paying up some debts he had incurred and that the accused persons were demanding money from his father which was refused to be paid by the deceased and as such the occurrence took place. As against the above line of evidence, his mother P.W. 2 has not stated anything like the deceased going to Maharajganj for scribing any deed to sell any property belonging to him, rather the lady stated that her husband had been to Maharajganj for purchasing some vegetables. This conflicting evidence on the purpose of the deceased going to Maharajganj has definitely raised a doubt as regards the claim that the deceased had gone to Maharajganj and had in fact returned from there. The further evidence of the informant in paragraph 10, i.e., the first line of cross-examining is that the accused persons had demanded money from the deceased in Maharajganj and not at any other place. Definitely the two witnesses, i.e., P.Ws.1 and 2 do not claim accompanying the deceased up to Maharajganj. Besides, P.W. 2 the informant admitted in her evidence that she was a Pardanashin lady and never went out of her house. Thus, the proof of the fact that the accused persons demanded money from the deceased appears not satisfactory. 11. As regards the manner of occurrence the two appellants namely Sheo Shankar Mahto and Ramanand Mahto are alleged to have dealt blows with their respective bhalas simultaneously on the head of the deceased. P.W. 3 the doctor during the course of the post mortem examination report found following injuries on the dead body: (1) One lacerated wound 2" x ½" x tissue deep on the right side of the forehead. (2) One sharp cut wound 2 ½" x 1" x bone deep on the left side of the forehead. P.W. 3 the doctor during the course of the post mortem examination report found following injuries on the dead body: (1) One lacerated wound 2" x ½" x tissue deep on the right side of the forehead. (2) One sharp cut wound 2 ½" x 1" x bone deep on the left side of the forehead. (3) One sharp cut wound 3" x 1" x bone deep on the occipital area of head. (4) Depressed right perital bone 3" x 2" in size. (5) Finger palpitation, there was fracture of crepitation of bone. (6) Bruise, two in number, each varying from 4" to 5" in length and 1/2 to 1 in width which were bluishing in colour. The doctor did not specify the site of these two bruises. 12. On dissection of the injuries P.W. 3 found that the right parietal was fractured in pieces and brain matter was coming out through the wound. This finding was recorded by the doctor in his post mortem examination report and it corresponds to injury no. 4, i.e., the depressed right parietal bone. Injury No. 4 has been opined by P.W. 3 caused by hard and blunt substance as may appear from the opinion part of P.W. 3 during the course of his examination-in-chief. The two sharp cut wounds were opined by P.W. 3, which appears wrongly numbered in the opinion part of the evidence as injuries no. 3 and 4, caused by sharp cut substance and as per the opinion of the doctor those were also possible by the edge of a bhala. Thus, it could be said that there were two corresponding injuries on the head of the deceased which could be attributable to an assault by bhala. However, during the course of their evidence both P.Ws. 1 and 2 gave up the initial story which was contained in the fardbayan that appellants Sheo Shankar Mahto and Ramanand Mahto dealt blows with bhalas on the head of the deceased. P.W.1 Vinay Mahto stuck to the original story contained in the fardbayan that the deceased was given blows, one each with bhala, by appellant Sheo Shankar Mahto and Ramanand Mahto, but during his cross-examination in paragraph 12 the witness specified the allegations again and stated that his father had also received injury in his thigh with Khoncha. As per the evidence of P.W. 3. As per the evidence of P.W. 3. Khoncha is a sharp pointed weapon made from bamboo. The doctor P.W. 3 did not find any injury on the thigh of the deceased. This evidence of P.W. 1 was adopted by P.W. 3 her mother in examination-in-chief when she alleged that appellant Ramanand Mahto dealt blow with Khoncha on the thigh of her husband. On the manner of assault P.W. 2 stated that the bhala blow given by Sheo Shankar Mahto pierced into the body of her husband (P.W. 2 paragraph 12). P.W. 2 has clarified as to on which part the deceased was hit by the accused persons. She has stated that the deceased was hit on his head as also in his. thigh. Thus, what we find is that as regards the assault given by the appellant Ramanand Mahto, not only the weapon was changed but the site of the assault which was initially the head has also been changed to thigh. This improvement in the prosecution case has not been supported by the doctor (P.W. 3) who did not find any injury of any type on the thigh of the deceased. All injuries except the two bruises were found on the head of the deceased. Thus, the medical man also does not support the evidence of informant that the bhala blows given by appellant Sheo Shankar Mahto pierced into the body of the deceased. 13. The above conflict could have been reconciled by the prosecution but it failed in doing so. We could have considered the conflict between the oral evidence, and the medical evidence, but the witnesses who were named in the FIR and some of whom were examined as P.Ws. 5 to 8 did not support the prosecution case in any of its aspects. Not only that the two witnesses in their evidence stated that other persons had seen the occurrence as may appear from P.W. 2 para 11 in which she stated that the occurrence was witnessed by her Dewar Sheonath, Prayojan Sai, Jamadar Sai, Laloo Baboo and Bachoo Hazam. At the same time, she has stated that the occurrence had not been witnessed by Hari Mahto, Bilash Mahto (P.W. 5), Kanhai Mahto (P.W. 3), Inder Chaudhary (not examined) Raghuwar Manjhi (P.W. 8). The names of these persons besides others appear in the fardbayan but they were disowned by P.Ws. At the same time, she has stated that the occurrence had not been witnessed by Hari Mahto, Bilash Mahto (P.W. 5), Kanhai Mahto (P.W. 3), Inder Chaudhary (not examined) Raghuwar Manjhi (P.W. 8). The names of these persons besides others appear in the fardbayan but they were disowned by P.Ws. 1 and 2 as eye witnesses to the occurrence. The names which had earlier been taken by the two witnesses as the persons who had seen the occurrence have not been examined. We are constrained to hold a view that the prosecution did not examine the persons who were named by both P.Ws. as eye-witnesses probably for the reason that had they been produced in court, they ought not have supported the charges. The non-examination of persons who as per the informant and her son were the real eye-witnesses make the prosecution evidence by the more suspect specially in the background that there is a serious conflict between the oral and medical evidence. 14. Besides the above flaws in the prosecution case, we could not find it acceptable as to why the I.O. of the case was not examined and why the informant did not disclose the story as she disclosed subsequently in the fardbayan to the Mukhiya, Sarpanch and other persons who had reached and met the informant in the night of the occurrence itself. This conduct of the informant also appears suspect and not befitting to her ordinary human conduct. The meeting of the two witnesses with Mukhiya, Chaukidar and others appears admitted by P.W. 1 in paragraph 13. 15. One last submission of Sri Mahesh Narayan Parbat could also not be answered by the prosecution that the two bruises, the sites of which could not be indicated by P.W. 3 either in Ext.-1 or in his evidence were bluish in colour. Sri Parbat referred to us the opinion expressed in the text book "Modis Jurisprudence and Toxicology" at page 689 of the 23rd Edition of the book which indicates that bruises which may initially be red in colour, turns into various colours by the passage of time and it could be blue in three days. Sri Parbat referred to us the opinion expressed in the text book "Modis Jurisprudence and Toxicology" at page 689 of the 23rd Edition of the book which indicates that bruises which may initially be red in colour, turns into various colours by the passage of time and it could be blue in three days. Sri Parbat submitted that the post mortem examination was held on 11.5.1990 at 1 P.M. and the two bruises were found blue in colour and this circumstance appearing from the medical evidence also indicates that the occurrence had not taken place on the day at the time as claimed by the prosecution. We do not want to express any definite opinion of ours about it but we could not free our minds from a doubt which was created by this circumstance also into the veracity of the prosecution case. 16. Having considered the materials and evidence available to us on the record of the case we find that the judgment and order of conviction passed against the appellant by the learned trial court are not sustainable. They are accordingly set aside. The appellants deserve to be extended the benefit of doubt and we do extend the same to them. They are, accordingly, acquitted on being given benefit of doubt from the charges for which they were convicted. Appellant Ramanand Mahto appears confined in custody, other appellants are on bail. Let petitioner Ramanand Mahto be released from custody forthwith, if he is not wanted in any other case. As regards the other appellants they shall stand discharged from the liabilities of their respective bonds. The appeal is allowed.