ASHWANI KUMAR SINGH, J.:–The present appeal has been filed against the judgment and order dated 24th January, 1989 passed in Sessions Trial No. 17/1983 / 150/1980 by the learned 1st Additional Sessions Judge, Aurangabad, whereby appellant nos. 1 to 4 have been convicted for the offence under Section 302 of the Indian Penal Code whereas appellant nos. 5 and 6 have been convicted for the offence under Section 302/149 of the Indian Penal Code and they all have been sentenced to undergo R.I. for life. Appellant No. 1 has further been convicted for offence under Sections 307 and 326 of the Indian Penal Code and has been sentenced to undergo R.I. for seven years and three years respectively. Appellant Nos 1, 2, 3, 5 & 6 have further been convicted under Section 148 of the Indian Penal Code and appellant no. 4 has been convicted under Section 147 of the Indian Penal Code but no separate sentence has been awarded for these offences. 2. The prosecution case is based upon the fardbeyan of Ganga Dayal Mahto (P.W.-5) which was recorded on 31.1.1980 at 2:30 p.m. at Kataria Badhar situated south –west of village-Mamrejpur by Md. Ayub Shah, Officer-in-Charge of Daud Nagar Camp police station. It is alleged that while the informant together with his father Inder Mahto (deceased), Bindeshar Ram (P.W.-6) and Inderdeo Mahto (P.W.-4) was ploughing his land appertaining to plot no. 206 in Village-Mamrejpur, the accused persons who were his co-villagers being variously armed with ‘Garasa’, Bhala, Barchi, Katari, Lathi and pistol forming an unlawful assembly came there and forbade them from cultivating the land in question. The informant defied their dictate and told them that the plot in question was decreed in his favour by the competent court. An altercation took place between the parties. Upon this, being annoyed, it is alleged that appellant no. 1 Rajdeo Mahto and appellant no. 2 Narad Mahto inflicted several injuries by Garasa upon head and left hand of the father of the informant. When Inderdeo Mahto (P.W.-4) tried to intervene, Rajdeo Mahto and Narad Mahto are alleged to have assaulted by Garasa upon his head. Further, appellant no. 3 Suba Mahto and appellant no .6 Dina Mahto are alleged to have assaulted Inderdeo Mahto (P.W.-4) by Spear and “Barchhi” respectively. Ramautar Mahto (appellant no. When Inderdeo Mahto (P.W.-4) tried to intervene, Rajdeo Mahto and Narad Mahto are alleged to have assaulted by Garasa upon his head. Further, appellant no. 3 Suba Mahto and appellant no .6 Dina Mahto are alleged to have assaulted Inderdeo Mahto (P.W.-4) by Spear and “Barchhi” respectively. Ramautar Mahto (appellant no. 5) is alleged to be present at the scene of crime with a pistol in his hand. Co-accused Bhulan and Ramdeni Mahto (appellant no. 4) who were armed with Lathi are alleged to have assaulted father of the informant Inderdeo Mahto on his both shoulders. Co-accused Dayali Kumhar is alleged to have assaulted Bindeshwar Ram (P.W.-6) by ‘Katari’ which hit him on his right hand. Appellant No. 1 Rajdeo Mahto is alleged to have caused injury by means of Gandasa upon Bindesar Ram (P.W.-6) on his left leg. Co-accused Chandradeo Mahto is alleged to have indiscriminately assaulted P.W.-4 Inderdeo Mahto by ‘Lathi’ causing injury on his shoulders and waist. Co-accused Pahlu Thakur and Prem Thakur are also alleged to have assaulted indiscriminately by Lathi upon P.W.-4 Inderdeo Mahto. 3. It is stated in the oral statement of informant that on alarm being raised Jichhori Manjhi, Santoshi Yadav, Jamuna Mahto, Ramnath Mahto, son of Rohan Mahto and another Ramnath Mahto, resident of Village-Rambigha, Pratap Mahto and others reached at the place of occurrence from neighbouring field. They not only witnessed the occurrence but intervened too in order to pacify the dispute. In the meantime, the Officer-in-Charge of the police station together with a contingent of armed force and police personnel reached at the place of occurrence, as a result of which the informant claims that he could be saved and the accused persons fled away. The motive behind the occurrence is alleged to be long standing dispute with respect to land appertaining to plot no. 206 between the parties and a proceeding under Section 107 Cr. P.C. was going on between them. On the basis of aforesaid oral statement of the informant Ganga Dayal Mahto (P.W.-5), a formal F.I.R. was drawn on the same day at 8:30 p.m. by Md. Ayub Shah. The case was initially registered under Sections 147, 148, 149, 324, 323, 307 of the Indian Penal Code against altogether 11 accused persons including the six appellants. 4. The injured Inderdeo Mahto father of the informant died in Daud Nagar Government Hospital on the date of occurrence itself. Ayub Shah. The case was initially registered under Sections 147, 148, 149, 324, 323, 307 of the Indian Penal Code against altogether 11 accused persons including the six appellants. 4. The injured Inderdeo Mahto father of the informant died in Daud Nagar Government Hospital on the date of occurrence itself. The police on conclusion of investigation submitted charge sheet under Sections 147, 148, 149, 302, 324 of the Indian Penal Code as also under Section 27 of the Arms Act against the appellants, Dayali Kumhar, Pahlu Thakur, Prem Thakur and Bhulan Mahto. Since co-accused Bhulan Mahto died even before framing of charge his name was expunged. The learned C.J.M. on receipt of the charge sheet took cognizance of the offence. After supplying the police papers in terms of Section 207 of the Code of Criminal Procedure, the case was committed to the court of sessions as the offence alleged was exclusively triable by the court of sessions. 5. All the nine (9) accused persons were charged under Section 148 IPC. Accused Rajdeo Mahto, Narad Mahto, Suba Mahto, Ramdeni Mahto and Dayali Kumhar were further charged under Section 302 of the Indian Penal Code for committing murder of Inder Mahto. Remaining four accused persons namely, Ramautar Mahto, Dina Mahto, Pahlu Thakur and Prem Thakur were charged under Section 302/149 of the Indian Penal Code. Further, accused Rajdeo Mahto, Narad Mahto, Dina Mahto, Pahlu Thakur and Prem Thakur were charged under Section 307 of the Indian Penal Code for attempting to commit murder of Inderdeo Mahto (P.W.-4). Accused Rajdeo Mahto had been further charged under Section 326 of the Indian Penal Code for voluntarily causing grievous hurt to Bindesar Ram (P.W.-6) by means of Gandasa. 6. The defence did not plead guilty and claimed to be tried. The prosecution in order to prove the charges examined altogether 8 witnesses. P.W.-1 Anwar Iqbal and P.W.-8 Hari Narayan Singh are formal witnesses. P.W.-1 has proved writing of the Investigating Officer on the fardbeyan as well as on the formal first information report whereas P.W.-8 has stated that Dr. L.P. Jaiswal, who had conducted autopsy on the dead body of Inder Mahto was already dead and was not available for deposition in the court. P.W.-7, Dr. Braj Kishore Prasad is the doctor, who had examined the injured persons. L.P. Jaiswal, who had conducted autopsy on the dead body of Inder Mahto was already dead and was not available for deposition in the court. P.W.-7, Dr. Braj Kishore Prasad is the doctor, who had examined the injured persons. P.W.-2 Ramnath Mahto, P.W.-3, Jamuna Mahto, P.W.-4 Inderdeo Mahto, P.W.-5 Ganga Dayal Mahto and P.W.-6 Bindesar Ram claims to be eye-witness. P.W.-4 Inderdeo Mahto and P.W.-6 Bindeshwar Mahto had also sustained injuries as per prosecution case in the alleged incident. 7. Besides the oral testimony, the prosecution has proved formal F.I.R. (Exhibit-1), Fardbeyan (Exhibit-2), Signature of Ganga Dayal Mahto on the fardbeyan (Exhibit-2/1), Seizure list (Exhibit-3), Carbon copy of the inquest report (Exhibit-4), Injury report of Inder Mahto (Exhibit-5), Injury report of Inderdeo Mahto (Exhibit-6), Injury report of Bindesar Ram (Exhibit-6/1) and Post-mortem report of Inder Mahto (Exhibit-7). 8. After conclusion of the prosecution evidence, statement of accused persons was recorded under Section 313 Cr.P.C. The defence is of total denial of the occurrence and false implication of the accused persons. The defence neither adduced any oral evidence nor exhibited any documentary evidence on their behalf. On conclusion of the trial, the trial court acquitted three of the co-accused namely, Dayali Kumhar, Pahlu Thakur and Prem Thakur, who faced trial along with the appellants, finding no evidence against them to substantiate the alleged charges. However, the appellants have been convicted and sentenced in the manner stated above. 9. P.W.-1 Anwar Iqbal is an A.S.I. of police and is a formal witness. In his examination-in-chief he stated that the Police Officer Ayub Shah, who recorded the fardbeyan, drew the F.I.R., conducted the investigation and submitted charge sheet, had already died. As stated above, he proved writing of Ayub Shah on the formal F.I.R. and fardbeyan, which were marked Exhibits- 1 & 2 respectively. In cross-examination, this witness has stated that the fardbeyan was not recorded in his presence and Ayub Shah died 2-3 years ago. 10. P.W.-2 Ramnath Mahto is a chance witness. In his examination-in-chief he has stated that on the relevant date and time of occurrence, he was going towards Katariya Badhar. On alarm being raised, he went to the field of Inder Mahto and found cultivation going on. Appellant no. 1 Rajdeo Mahto and appellant no. 2 Narad Mahto assaulted by Gandasa on head of Inder Mahto. Suba Mahto assaulted him by ‘Spear’. Dina Mahto assaulted him by “Barchha”. On alarm being raised, he went to the field of Inder Mahto and found cultivation going on. Appellant no. 1 Rajdeo Mahto and appellant no. 2 Narad Mahto assaulted by Gandasa on head of Inder Mahto. Suba Mahto assaulted him by ‘Spear’. Dina Mahto assaulted him by “Barchha”. Bhulan Mahto and Ramdeni Mahto assaulted Inder Mahto by Lathi. He further stated that Rajdeo Mahto, Narad Mahto, Suba Mahto, Ramautar Mahto, Bhulan Mahto and Ramdeni Mahto assaulted P.W.-5 Ganga Dayal Mahto (the informant) and P.W.-6 Bindeshar Ram. Due to aforesaid injuries, Inder Mahto died in the hospital on the same day in the evening. In cross-examination, P.W.-2 has stated that his statement was recorded by police on the date of occurrence itself. He admitted that he did not disclose to the police regarding the weapons used by the accused persons at the time of assault upon the deceased Inder Mahto. In reply to the suggestion that appellant Ramautar Mahto had instituted a criminal case against him he stated that he was not aware of the fact. From the trend of the deposition of this witness, it is apparent that he has not given a truthful account of the occurrence. It is nobody’s case that the informant Ganga Dayal Mahto had received any injury in the alleged occurrence but this witness has stated that Rajdeo Mahto, Narad Mahto, Suba Mahto, Ramautar Mahto, Bhulan Mahto and Ramdeni Mahto assaulted and injured Ganga Dayal Mahto also. Further, this witness has admitted in cross-examination that he did not state before the police regarding the weapons used by the accused persons while assaulting the deceased or injured persons. The I.O. being dead has not been examined. Even on own admission of P.W.-2 there is marked improvement in his version when he has deposed before the court almost 8 years after the alleged occurrence. He has improved to the extent of assigning weapons in the hand of each of the appellants which was used by them at the time of occurrence. It would also be relevant to point out here that even in the F.I.R. it is not alleged that Ramautar Mahto had participated in assault on any of the members of the prosecution party but this witness has alleged that he too participated in the assault. 11. P.W.3 Jamuna Mahto is also a chance witness. It would also be relevant to point out here that even in the F.I.R. it is not alleged that Ramautar Mahto had participated in assault on any of the members of the prosecution party but this witness has alleged that he too participated in the assault. 11. P.W.3 Jamuna Mahto is also a chance witness. He claims that on the relevant date and time of occurrence, he was going towards Katariya and when he reached near Katariya Badhar he saw Inder Matho cultivating his land and altercation was going on. Immediately, thereafter, appellant Rajdeo Mahto and Narad Mahto assaulted on the head of Inder Mahto by Gandasa and Suba Mahto and Dina Mahto assaulted him by ‘Bhala’ and ‘Barchha’ respectively. Bhulan Mahto and Ramdeni Mahto assaulted him by ‘Lathi’. He has also stated in his chief that appellant Rajdeo Mahto, Narad Mahto and Suba Mahto had assaulted P.W.-4 Inderdeo Mahto by ‘Gandasa’. Bindeshwar Ram (P.W.-6) was also assaulted but he could not say as to who assaulted him. He has also stated that as a result of injury, Inder Mahto died on the same day in Daud Nagar Hospital. In cross-examination, P.W.-3 has admitted that appellant Ramautar Mahto had instituted a case under Section 302 of the Indian Penal Code against him. He did not recollect as to whether he had stated before the police regarding the respective weapons possessed by each of the accused persons at the time of occurrence. When he reached at the place of occurrence, the witnesses, Santoshi, Jichhori and others were also there. One thing is important to note here that P.W.-2 Ram Nath Mahto has stated in para 7 of his deposition that on the date of occurrence his statement was recorded at the place of occurrence itself whereas P.W.-3 in his deposition in para 7 has categorically stated that the police had recorded his statement as also statement of Ramnath Mahto in the police station. This witness is admittedly having animosity with appellant Ramautar Mahto from before. He though claims to be present at the place of occurrence, mysteriously states that he cannot say as to who assaulted P.W.-6 Bindeshwar Ram. 12. P.W.-4 Inderdeo Mahto is an injured eye-witness. This witness is admittedly having animosity with appellant Ramautar Mahto from before. He though claims to be present at the place of occurrence, mysteriously states that he cannot say as to who assaulted P.W.-6 Bindeshwar Ram. 12. P.W.-4 Inderdeo Mahto is an injured eye-witness. It is to be noted here that P.W.-2 and P.W.-3 claiming themselves to be eye-witness have stated that at the time of occurrence it was the deceased Inder Mahto who was cultivating his land, but P.W.-4 states that on the relevant date and time of occurrence, he was present at the place of occurrence and it was P.W.-6 Bindeshwar Ram who was cultivating the land. Apart from him, deceased Inder Matho and his son Ganga Dayal Mahto (the informant) were present there. According to him, appellant Rajdeo Mahto and Narad Mahto assaulted upon Inder Mahto by means of Gandasa, and when he intervened in order to rescue him appellant Rajdeo Mahto assaulted upon his head by Gandasa and appellant Narad Mahto assaulted upon his back by Gandasa. He has further stated that Narad Mahto and Rajdeo Mahto cut both the legs of P.W.-6 Bindeshwar Ram. Further, according to him, appellant Ramdeni Mahto and co-accused Bhulan Mahto assaulted upon him and upon Inder Mahto by Lathi. Suba Mahto assaulted by ‘Spear’ and his son Dina Mahto assaulted by ‘Barchhi’ upon deceased Inder Mahto. After the assault accused persons fled away. The police came and all the injured were taken to hospital by police where in course of treatment Inder Mahto died. He admits that the informant Ganga Dayal Mahto is his brother-in-law (sister’s husband). He denies knowledge of the fact that appellant Ramautar Mahto had instituted a case under Section 302 IPC upon him, his brother-in-law and the deceased. He claims that his statement was recorded by the police at the place of occurrence itself. In cross-examination, he admits that the police stayed in the hospital for almost 4 hours. He has stated that he was present in the village as he had gone to take back his sister to her parental home. 13. P.W.-5 is the informant. In his examination-in-chief he like P.W.-4 has stated that on the relevant date and time of occurrence, it was his Banihar (labourer) Bindeshwar Ram (P.W.-6), who was cultivating the land. He did not obey the dictates of the accused persons when they forbade him from ploughing the disputed land. 13. P.W.-5 is the informant. In his examination-in-chief he like P.W.-4 has stated that on the relevant date and time of occurrence, it was his Banihar (labourer) Bindeshwar Ram (P.W.-6), who was cultivating the land. He did not obey the dictates of the accused persons when they forbade him from ploughing the disputed land. In his deposition, he has stated that Rajdeo Mahto and Narad Mahto armed with Gandasa, Bhulan Mahto and Ramdeni Mahto armed with Lathi, Suba Mahto armed with ‘Bhala’, Dina Nath Mahto armed with ‘Barchha’ and Ram Nath Mahto armed with pistol had come to his filed and appellant Narad Mahto and Rajdeo Mahto assaulted upon the head of his father whereas appellant Ramdeni Mahto and accused Bhulan Mahto assaulted upon him by ‘Lathi’ and Dinanath Mahto and Suba Mahto assaulted upon him by ‘Barchha’ and ‘Bhala’. When Inderdeo Mahto intervened Rajdeo Mahto and Narad Mahto assaulted him by Gandasa and Bhulan Mahto and Ramdeni Mahto assaulted him by ‘Lathi’. Rajdeo Mahto and Narad Mahto assaulted on the leg of Bindeshwar Ram, as a result of which his left leg was amputated. Bhulan Mahto and Ramdeni Mahto had assaulted him by ‘Lathi’. He has further stated that Jichhori Manjhi, Jamuna Mahto, Santoshi Yadav, Ramnath Mahto and Ramna Mahto had come at the place of occurrence when the incident took place. In his chief, P.W.-5 states that 15-20 minutes after the occurrence, the police had arrived at the place of occurrence. The Investigating Officer, namely, Ayub Shah had recorded his statement at the place of occurrence itself. He has proved the fardbeyan as well as his signature over the fardbeyan, which have been marked as exhibit-2 and 2/1 respectively. He has also proved seizure list which was prepared by the Investigating Officer Ayub Shah with respect to recovery of spectacle and seizure of blood-stained earth. The said seizure list was marked as exhibit-3. He states that the I.O. sent all the three injured to hospital where his father died on the same day. After his death, the Investigating Officer prepared the inquest report in presence of the witnesses. He had proved carbon copy of the inquest report which was marked as exhibit-4. P.W.-5 is an important witness. It is he, on whose fardbeyan, the F.I.R. was instituted. After his death, the Investigating Officer prepared the inquest report in presence of the witnesses. He had proved carbon copy of the inquest report which was marked as exhibit-4. P.W.-5 is an important witness. It is he, on whose fardbeyan, the F.I.R. was instituted. One thing is relevant to point out here that all the witnesses including P.W.-5 have given a clean chit to co-accused Prem Thakur, Pahlu Thakur and Dayali Kumhar. This witness in his cross-examination clearly admits enmity existing from before relating to the land in question but he fails to disclose from which court the case was decreed in his favour. In cross-examination, he clearly states that he does not know Prem Thakur and Pahlu Thakur. He saw the occurrence from a close distance. His father sustained 10-15 Lathis, 4-5 Spear injuries and several Gandasa injuries. P.W.-4 though claims to be present at the place of occurrence since beginning but P.W.-5 has stated that on hearing hue and cry his brother-in-law came to the place of occurrence. He further stated that his brother-in-law was assaulted four times by Gandasa by appellant Narad and Rajdeo. Both of them had assaulted him on his head. His brother-in-law had also sustained 4-5 Lathi injuries. P.W.-6 Bindeshwar Ram had received injuries both on his left and right legs at the hands of appellants Rajdeo and Narad. P.W.-5 has further stated that when the occurrence took place, he fled towards his village. Before he left the place, Pratap Mahto and Jamuna Mahto had come there. Subsequently, he came along with the police and at that time injured persons were present at the place of occurrence. When he reached at the place of occurrence along with the police party, Jichhori Manjhi, Ramnath Mahto, Santoshi Yadav and Ramna Mahto had come. His father was carried to the hospital on a cot from the place of occurrence. In his cross-examination, he has stated that the doctor had examined all the three injured in the hospital. When his father was examined by the doctor, he died. The police prepared inquest report in the hospital itself. He denied the suggestion that he had no concern with the land in question. He had not seen the occurrence and the injured person had received injuries at different place but subsequently, the accused persons were implicated falsely in this case. When his father was examined by the doctor, he died. The police prepared inquest report in the hospital itself. He denied the suggestion that he had no concern with the land in question. He had not seen the occurrence and the injured person had received injuries at different place but subsequently, the accused persons were implicated falsely in this case. The relevance of deposition of this witness would be discussed later on. 14. P.W.-6 Bindeshwar Ram is another injured witness. He has stated that at the time of occurrence he was cultivating land of the informant. At that time, he was his Banihar (Labourer). Ganga Dayal Singh his father and Inderdeo Singh were present. The appellant Rajdeo Mahto assaulted on his leg by means of Gandasa, as a result of which he became unconscious. Both his legs were cut. In cross-examination, he has stated that at the time of occurrence he did not know appellant Rajdeo. The police had not recorded his statement. At the time of occurrence, no one of village-Alpa or Mamrejpur was present. Hence, from the deposition of this witness, it is clear that though he claims to be present at the time of occurrence he has attributed assault as against Rajdeo Mahto alone in his examination-in-chief. However, in cross-examination, he admitted that he had no connection with village-Mamrejpur and he did not even identify the appellant Rajdeo Mahto at the time of occurrence and his statement was never recorded by the police. 15. P.W.-7 is doctor Braj Kishore Prasad. He examined the injured persons on 31.1.1990. He has stated that the deceased was brought in an unconscious stage. There was multiple injuries on his person. On his death the police was informed. The examination report of Inder Mahto is marked as exhibit-5. On the same day at 4:00 p.m., he examined P.W.-4 Inderdeo Mahto and found following injuries on his person:- (i) One incised wound 5” x ½” x ½” oblique over left portion of scalp leading to cut of scalp bone partially. (ii) Bruise 3” x 1” over left arm. (iii) Bruise 2” x 1” over right arm. (iv) Bruise 3” x 1” over back. According to him Injury no. 1 was grievous in nature caused by sharp cut instrument such as Gandasa and the remaining injuries were simple in nature caused by hard and blunt substance such as Lathi. (ii) Bruise 3” x 1” over left arm. (iii) Bruise 2” x 1” over right arm. (iv) Bruise 3” x 1” over back. According to him Injury no. 1 was grievous in nature caused by sharp cut instrument such as Gandasa and the remaining injuries were simple in nature caused by hard and blunt substance such as Lathi. The age of his injuries was within 6 hours. He has proved the injury report of Indradeo Mahto which has been marked as Ext.-6. On the same day at 5:30 p.m. he examined P.W.-6 Bindeshwar Ram and found the following injuries on his person:- (i) Incised wounds 2” x ½” x ½” over and above right ankle leading to one cut both tibia and fibula. (ii) Incised wound of similar nature and size of injury no. 1 on right leg. Both the injuries were grievous in nature caused by sharp cutting weapon such as Gandasa. The age of injuries was within 6 hours. He has proved the injury report of Bindeshwar Ram which has been marked as Ext.-6/1. P.W.-7 has also proved the post mortem report of Inder Mahto, which has been marked as exhibit-7. 16. A perusal of post mortem report (Exhibit-7) shows that following ante mortem injuries were found on the person of deceased:- (i) Lacerated cut 1 ½” x 1” x bone deep just on the back of left ear, with fracture of left temporal bone. (ii) Lacerated cut 1 ½” x 1 ¼” x scalp deep in left parietal region of scalp. (iii) Lacerated cut of 2” x ½” x scalp deep left side of frontal region of scalp with depressed fracture of left frontal bone subdural heamatoma were present in both sides of crania. (iv) Swelling left side of chest 5” x 6” in front and lateral side with fracture of shaft of 5th to 8th ribs. (v) Lacerated cut 3” x 1” x upto bone depth on the back and lateral side of right fore-arm just above the wrist with fracture of right radius and ulna bones. (vi) Lacerated cut 3” x 1” x upto bone depth cutting almost all structures except two tendous on the back of left forearm just above the wrist. (vii) Swelling dorsum of right foot 3” x 3” with fracture of 1st to 4th metadorsal bones. 17. (vi) Lacerated cut 3” x 1” x upto bone depth cutting almost all structures except two tendous on the back of left forearm just above the wrist. (vii) Swelling dorsum of right foot 3” x 3” with fracture of 1st to 4th metadorsal bones. 17. The post mortem examination was conducted by Doctor L.P. Jaiswal who according to P.W.-8 Hari Narayan Singh had already died but P.W.-8 could not disclose in cross-examination as to when and how doctor L.P. Jaiswal died. According to the post mortem report all the injuries were caused by hard and blunt weapon applied with great force except first to third injuries mentioned therein which were caused by blunt pointed weapon. The post mortem examination was conducted at 12.30 p.m. on 1.2.1980. According to the doctor, conducting the post mortem examination, the time elapsed since death was 12 to 18 hours. 18. Learned counsel appearing on behalf of the appellants contends that the prosecution has miserably failed to bring home the charges. The doctor, who conducted the postmortem report and the Investigating Officer of the case have not been examined. The independent witnesses, who are alleged to have witnessed the occurrence and intervened into the matter at the time of occurrence, have not been examined. The witnesses inimical to the appellants have been examined in support of the prosecution case. The place of occurrence has not been established. The defence has seriously been prejudiced due to non-examination of the Investigating Officer. The blood stained soil collected from the place of occurrence has not been produced in the court. The medical evidence does not corroborate the ocular evidence of the witnesses examined in the court. The prosecution witnesses examined in the court made contradictory statement to each other. The witnesses have not supported part of the occurrence as a result of which the trial court itself acquitted three of the accused persons, who were put on trial along with the appellants. The injured witnesses, who deposed in the court, are either related or interested witnesses and, thus, their deposition is to be scrutinized with great care and caution. There is absolutely nothing as against appellant no. 5 Ramautar Mahto, who is alleged to be present, armed with pistol but no overt act has been alleged against him. The injured witnesses, who deposed in the court, are either related or interested witnesses and, thus, their deposition is to be scrutinized with great care and caution. There is absolutely nothing as against appellant no. 5 Ramautar Mahto, who is alleged to be present, armed with pistol but no overt act has been alleged against him. It is also stated that P.W.-6 son of Dina Mahto @ Dina Nath Mahto was admittedly a Juvenile on the date of occurrence as his age has been mentioned in the impugned judgment to be 27 years on 24th of January, 1989 whereas the occurrence took place on 31.1.1980. Thus, he would be aged about 18 years on the date of occurrence. 19. Considering the submissions of the learned counsel for the appellants, we have to see from the deposition as to whether the prosecution has been able to prove its case beyond reasonable doubt. 20. Now, on the basis of aforesaid evidence, the trial court has convicted the appellants. As indicated hereinabove, P.Ws.-2 & 3 are chance witnesses. P.W.-3 has admitted enmity with appellant Ramautar Mahto. From the F.I.R. itself, it appears that the witnesses reached at the place of occurrence on hulla being raised. These witnesses claim to be there when the occurrence started. In cross-examination, they clearly state that they did not state before the police regarding the weapons with which the accused persons were armed. P.W.-2 though states to have given his statement at the place of occurrence itself P.W.-3 states that he as well as P.W.-2 had made their statement before the police in the police station. P.Ws. 2 & 3 in their deposition have stated that it was Inder Mahto who was ploughing and cultivating the field whereas P.Ws.- 4, 5 & 6 have stated it was Bindeshwar Ram, the Banihar, who was ploughing and cultivating the field at the time of occurrence. Thus, the deposition of P.Ws. 2 & 3 does not inspire any confidence. P.W.-4 has stated that when the occurrence took place, he was present in the field together with the informant, his father and Bindeshwar Ram. To the contrary, P.W.-5 states that P.W.-4 came subsequently when hue and cry was raised. P.W.-4 and P.W.-5 have stated that Rajdeo Mahto and Narad Mahto assaulted the deceased Inder Mahto by Gandasa on his head. They also cut both the legs of Bindeshwar Ram. To the contrary, P.W.-5 states that P.W.-4 came subsequently when hue and cry was raised. P.W.-4 and P.W.-5 have stated that Rajdeo Mahto and Narad Mahto assaulted the deceased Inder Mahto by Gandasa on his head. They also cut both the legs of Bindeshwar Ram. Suba Mahto assaulted Inder Mahto by ‘Spear’ and Dina Mahto assaulted Inder Mahto by ‘Barchha’. P.W.-4 is a resident of different village. He admits that the informant is his brother-in-law. When we look at the deposition of P.W.-5, he gives a vivid description of assault upon the deceased as also upon P.W.-4. In cross-examination, he states that his father sustained 4-5 Gandasa injuries, 10-15 lathi injuries and 4-5 spear injuries. Apart from ‘Barchcha injuries, when we look at the post mortem report, we find it very difficult to reconcile with the injuries found on the person of the deceased. As stated above, in all there are 7 antemortem injuries found on the person of the deceased. Out of 7 injuries, 3 injuries are alleged to have been caused by blunt pointed weapon whereas other injuries are by hard and blunt weapon. The doctor (P.W.-7) in cross-examination admitted that ‘Barchha’ usually is a sharp pointed weapon. Such weapon generally causes piercing wound. A Gandasa with the pressed middle may cause two injuries and in case of a single injury caused by such weapon its middle portion will be deeper. When we see the injuries caused on the person of the deceased and injured, we find it difficult to reconcile the injuries found on their person and the manner in which it is alleged to have been attributed. As a matter of fact, when the allegation is of causing 4-5 injuries by Gandasa, 4-5 injuries by Bhala, 2 injuries by Bhala and one injury by Barchha, the injuries found are far less than what is alleged. Similar is the case regarding injuries caused by hard and blunt substance. The prosecution has deliberately given a complete go-bye to its case as against some of the appellants who have been acquitted by the trial court. When we look to injuries found on the person of P.W.-6 Bindeshwar Ram again we find that the injuries found on his person are materially inconsistent with ocular evidence of the witnesses. The prosecution has deliberately given a complete go-bye to its case as against some of the appellants who have been acquitted by the trial court. When we look to injuries found on the person of P.W.-6 Bindeshwar Ram again we find that the injuries found on his person are materially inconsistent with ocular evidence of the witnesses. Though P.W.-6 says that both of his legs were cut, the doctor could find only two incised injuries and that too only on his right leg. The deposition of P.W.-6 does not inspire any confidence. He has named only appellant Rajdeo Mahto in his examination-in-chief in cross-examination, he categorically states that he did not know or identify Rajdeo Mahto at the time of occurrence. He further damages the prosecution case by admitting the fact that his statement was never recorded by police. This means that he deposed for the first time in court and his statement was never recorded by the police. Here we may also notice that though there is allegation in the F.I.R. that Dayali Kumhar caused injury by Katar on back of P.W.-6 Bindeshwar Ram no such injury has been found by the Doctor when he examined him which would be evident from exhibit-6/1. 21. We find that initially P.W.-5 (the informant) has stated in the F.I.R. that when the occurrence took place he was present at the place of occurrence and in the meantime, the Officer-in-Charge and armed police party reached there, as a result of which his life could be saved and the accused persons ran away seeing the police party. But, in course of trial, when he deposed, he has given a completely different version. In cross-examination, he states that when the occurrence took place, he fled away towards his village and came to the place of occurrence, subsequently, together with the police party. 22. We further notice the fact that independent witnesses, such as, Jamuna Mahto and Pratap Mahto who reached at the place of occurrence have not been examined in course of trial. No reasonable explanation has been given for their non-examination by the prosecution. 23. We further notice the fact that the F.I.R. was not registered promptly. The occurrence took place at 2:00 p.m. on 31.1.1980, the fardbeyan was recorded at 2:30 p.m on the same day, the Officer-in-Charge was present at the place of occurrence and he took up the investigation himself. 23. We further notice the fact that the F.I.R. was not registered promptly. The occurrence took place at 2:00 p.m. on 31.1.1980, the fardbeyan was recorded at 2:30 p.m on the same day, the Officer-in-Charge was present at the place of occurrence and he took up the investigation himself. In that case, there was no reason as to why the F.I.R. was registered at 8.30 p.m. specially when the place of occurrence was only 7 km. away from the police station. 24. The delay in registration of F.I.R. becomes relevant specially in the light of the deposition of witnesses from which it would appear that injured were carried to the State Dispensary by Bus and they had reached Daudnagar at 4:00 p.m. i.e. within 90 minutes of recording of the fardbeyan. It is submitted that as a matter of fact the fardbeyan was not recorded, as alleged, at the place of occurrence. The witnesses have stated that the police was there in the hospital for about 4 hours and the deceased Inder Mahto died when he was examined by the doctor. This means that the deceased had certainly died in the evening prior to the institution of the F.I.R. Thus, the delay in registration of the F.I.R. creates a reasonable suspicion. There might have been interpolation and improvement in the initial version. 25. We further find that the inquest report was prepared by the Investigating Officer of the case at 9.00 p.m. in Daudnagar Government Hospital. The inquest was witnessed by the informant himself and it was prepared by the Investigating Officer still name of the accused persons have not been mentioned therein. This also creates a doubt in the prosecution case. 26. We further notice that not only the Investigating Officer but the armed police party had also arrived at the place of occurrence at the time of occurrence itself. When a large number of accused persons are said to have participated in the occurrence in presence of several witnesses and the armed police party had reached at the scene of crime it is surprising as to how each of them managed to escape and the police party failed to apprehend even one of them. The prosecution could neither arrest any one nor could seize any weapon used by them. The prosecution could neither arrest any one nor could seize any weapon used by them. Though, a seizure list was prepared, the material exhibit i.e. blood-stained soil was neither sent to Forensic Science Laboratory for its test nor the same was produced in the court in course of trial. In our opinion, the prosecution has failed to prove both the place of occurrence as also the manner of occurrence. The witnesses have made inconsistent statement in their deposition. The medical evidence does not corroborate the oral testimony. The independent witnesses have neither been examined nor explanation has been given for their non-examination. The prosecution has gave up its case against three of the accused who have been acquitted by the trial court itself. The witnesses have made deliberate improvement in their version in course of trial. 27. It is true that ocular testimony of the witnesses has greater evidentiary value than medical evidence but the ocular evidence should be of a nature which inspires confidence. In the present case, we find the same lacking. The medical evidence improbablizes the version regarding the manner of assault as alleged. We are mindful of the fact that the Court has a duty to separate the falsehood from the truth but, if after scrutinizing the evidence, it is not possible to separate truth from falsehood, because grains and Chaffs are inextricably mixed up, and if in the process of separation, a new case has to be re-constructed by divorcing essential details presented by the prosecution completely from the context then, in that case, the evidence is to be discarded in toto. In the present case we find it difficult to separate the grains and chaffs. 28. In the light of the discussion made hereinabove, we find it difficult to uphold the conviction. The prosecution has failed to prove its case beyond reasonable doubt. 29. In the result, the appeal stands allowed. 30. The impugned judgment of conviction and sentence is, hereby, set aside. The appellants are discharged from the liabilities of their bail bonds. NAVANITI PRASAD SINGH, J.:–I agree.