JUDGEMENT Anjana Prakash, J. 1. The Appellant No. 1 has been convicted Under Section 304 Part II I.P.C. and sentenced to R.I. for 10 years, whereas the Appellant No. 2 has been convicted Under Section 323 I.P.C. and sentenced to R.I. for 1 year by a judgment dated, 5th September, 1994 passed by the 2nd Additional Sessions Judge, Siwan in Sessions Trial No. 82 of 1988/19 of 1991. 2. The case of the prosecution is that on 22nd July, 1985 the Informant (PW. 4) stated that when his father was going towards the field the Accused persons surrounded him and variously assaulted the deceased, on account of which he died later. Initially the case was instituted Under Sections 147,324 and 323 I.P.C. but once the deceased died the case was converted to one Under Section 302 and charge was also framed Under Section 302/34 I.P.C. However the Appellants were acquitted of the charges and convicted as stated above. 3. During trial the prosecution has examined five witnesses in all. Out of whom, PW. 1 is formal, PW. 3 is the doctor, who conducted the postmortem examination report, PW. 5 is the Investigating Officer, whereas PW. 2 and PW. 4 are the material witnesses. It appears that the earliest information, which had been given by way of a Sanha, has not been brought on record and the present FIR was unduly delayed and the FIR was sent to the Court after 2 days. It also appears that initially the case of the prosecution was a general assault by all the Accused persons but during trial the two material witnesses developed the case and pin pointed the specific allegations against the Appellant No. 1. Admittedly there is land dispute between the parties and the defence had also proved a number of documents in regard to such enmity. The Investigating Officer did not find any blood at the place of occurrence nor were any papers with regard to the field shown to him. 4. On going through the evidence of PW. 2 and PW. 4, I find that PW. 2 was not an eye witness to the actual assault and he had come to the place of occurrence after the assault. Moreover the two eye witnesses named in the FIR were not examined by the prosecution. 5. 4. On going through the evidence of PW. 2 and PW. 4, I find that PW. 2 was not an eye witness to the actual assault and he had come to the place of occurrence after the assault. Moreover the two eye witnesses named in the FIR were not examined by the prosecution. 5. In the result, this appeal is allowed and the order of conviction and sentence passed against the Appellants on 5th September, 1994 by the 2nd Additional Sessions Judge, Siwan in Sessions Trial No. 82 of 1988/19 of 1991 is set aside.