JUDGMENT Per: SHYAM KISHORE SHARMA, J. Altogether 10 accused persons were put on trial but in course of trial one accused Kailash Yadav died. This appeal was filed by nine appellants but during pendency of appeal, four appellants namely, Ram Ishwar Yadav (appellant no.1), Ramdas Yadav (appellant no.6), Ram Sweak Yadav (appellant no.7) and Singhasan Yadav (appellant no.8) died, so the appeal against them abated and now the appeal is confined with respect to only five appellants namely, Ram Niwas Yadav (appellant no.2), Bhagirath Yadav (appellant no.3), Laxmi Yadav alias Gulti Yadav (appellant no.4), Dharichhan Yadav (appellant no.5) and Parsuram Yadav (P.W.9). 2. This appeal has been filed against the judgment dated 13.o1.1989 passed by Ist Additional Sessions Judge, Arrah in Sessions Trial No. 343 of 1984 whereby the appellants have been held guilty under Section 302 read with Section 149 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for life and they have further been convicted and sentenced to undergo rigorous imprisonment for seven years each under Section 307/149 of the Indian Penal Code. The sentences have been ordered to run concurrently. 3. Initially the case was registered under Sections 147, 148, 341, 307 and 323 of the Indian Penal Code on 15.02.1984 with regard to the occurrence on the same day at 7.00 A.M. The F.I.R. has been shown to be transmitted on 16.02.1984 but it appears that it was incorrect noting as the endorsement of the C.J.M. is 15.02.1984 itself meaning thereby it must have been transmitted on 15.02.1984. 4. While Sudeshwar Singh Yadav (deceased) was undergoing treatment at State Dispensary, Semraon at 9.45 P.M. on 15.02.1984 has given his fardbeyan (Ext.3) which resulted in formal F.I.R. of Charpokhari P.S. Case No. 18 of 1984 dated 15.02.1984 (Ext.4). Sudeshwar Singh Yadav stated that at about 7.00 A.M. his co-parcener Kailash Singh Yadav, who was living in partitioned house, and his sons Ram Ishwar Yadav, Ram Niwas Yadav and Bhagirath Yadav stealthily was trying to open the door in northern side which was already closed from before. It was retorted to by informant’s son Sheo Bahal Singh (P.W.5) but it resulted in erratic behaviour of the accused persons wherein Ram Ishwar Yadav, Ram Niwas Yadav and Bhagirath Yadav caught hold of Sheo Balal Singh and assaulted by lathi. It was retorted to by informant’s son Sheo Bahal Singh (P.W.5) but it resulted in erratic behaviour of the accused persons wherein Ram Ishwar Yadav, Ram Niwas Yadav and Bhagirath Yadav caught hold of Sheo Balal Singh and assaulted by lathi. Hue and cry was raised and hearing that the informant’s brothers Nemi Yadav (P.W.2) and Bali Yadav (P.W.4) reached there, then Ram Ishwar Yadav, Ram Niwas Yadav, Bhagirath Yadav, Dharichhhan Yadav and Laxmi Yadav assaulted the informant by lathi causing injuries upon his head, right arm and right leg. Informant’s brother Nami Yadav (P.W.2) was assaulted by lathi by Parsuram Yadav and Ram Sewak Yadav on the right hand, both arms and head and Bhagirath Yadav, Ram Niwas Yadav, Laxmi Yadav, Dharichhan Yadav, Ram Sewak Yadav and Singhasan Yadav assaulted Wali Yadav on his head, right hand fingers, left hand and back. The reason of the occurrence was that the accused persons were adamant to open a door in the house but as and when it was not permitted, then assault was made. The occurrence was witnessed by two villagers Ramdeo Singh Yadav (not examined) and Raja Ram Singh Yadav (P.W.1). 5. After the case was registered injured Sudeshwar Singh Yadav died and inquest report (Ext.5) was prepared. Other injured were treated and injury reports (Exts.1 to 1/4) were obtained. The post mortem report (Ext.2) of the deceased was received by the Investigating Officer. After investigation, the case was found to be true, so chargesheet was submitted, cognizance was taken and as the case was being triable by session, it was committed to the court of Sessions where charges under Section 302/34 of the Indian Penal Code was framed against Ram Ishwar Yadav, Ram Niwas Yadav, Bhagirath yadav, Dhurichhan Yadav and Laxmi Yadav, charge under Sections 302/149 and 307/149 of the Indian Penal Code was framed against all the ten accused and charge under Section 307/34 of the Indian Penal Code was framed separately against nine accused barring Kailash Yadav. Charges were explained to the accused persons to which they pleaded innocence. Hence trial proceeded. 6. In course of trial, the prosecution in order to prove its case has examined altogether 8 witnesses. They are : P.W.1 Raja Ram Yadav, P.W.2 Nami Yadav, P.W.3 Jitendra Singh, P.W.4 Rambali alias Bali Yadav, P.W.5 Sheo Bahal Yadav, P.W.6 Dr.Lallan Prasad Singh, P.W.7 Dr. D.N. Akela and P.W.8 Murat Ram. 7. Hence trial proceeded. 6. In course of trial, the prosecution in order to prove its case has examined altogether 8 witnesses. They are : P.W.1 Raja Ram Yadav, P.W.2 Nami Yadav, P.W.3 Jitendra Singh, P.W.4 Rambali alias Bali Yadav, P.W.5 Sheo Bahal Yadav, P.W.6 Dr.Lallan Prasad Singh, P.W.7 Dr. D.N. Akela and P.W.8 Murat Ram. 7. The defence has also examined one witness who is Murat Ram (D.W.1). Some documents were also exhibited. 8. The trial court after hearing learned counsel for the parties and considering the evidences on record came to the conclusion that the prosecution has been able to prove the charges against the accused persons beyond the shadow of all reasonable doubts and passed order of conviction and sentence, as stated above. 9. This Court is required to reappraise the evidences on record, both oral and documentary, and to see as to whether there were materials available on record to prove the charges against the appellants beyond the shadow of all reasonable doubts or not. 10. First of all, we would like to discuss the evidence of the doctor who held post mortem over the dead body of the deceased who is P.W.7 D.N. Akela. On 17.02.1984 this witness was posted as Civil Assistant Surgeon at Arrah and on that date he held post mortem over the dead body of deceased Sudheshwar Singh Yadav and found following ante mortem injuries: (i) Rigour mortis present, eye open, mouth closed, teeth with blood coming out from mouth and nostril. (ii) Lacerated wound 1”x1/2”x scalp deep on the back of skull left side. (iii) Lacerated wound 1”x1/2”x scalp deep on back of skull (right side). (iv) Bruise 3”x2” on right side of chest. On dissection- 3rd, 4th and 5th ribs were found fractured. All the injuries were found to be caused by hard and blunt substance such as lathi. The death was within 36 hours of the post mortem examination. 11. The death of the victim on account of assault is not in dispute. The contention of the defence was that the victim has died in free fight in which the accused persons were also brutally assaulted but due to improper treatment, victim Sudeshwar Singh Yadav succumbed to his injuries though none of the injuries were such which would have caused death. It has also been submitted that many of the accused persons-appellants had received injuries. It has also been submitted that many of the accused persons-appellants had received injuries. Rajmani Devi daughter of appellant Ram Niwas Yadav had received grievous injuries in the same transaction and that was not explained. It has also been submitted by learned counsel for the appellants that, in fact, the prosecution party wanted to dislodge the accused persons from the right of property. 12. The most important witness of the case was the informant but he after lodging the case succumbed to his injuries. 13. The next important witness was the Investigating Officer of the case who could have reported about the place of occurrence and his evidence would have unfolded to some extent the genesis of the occurrence but he has not been examined. The next witness whose name is mentioned in the fardbeyan is Raja Ram Yadav (P.W.1), an independent witness, but he has not supported the prosecution case and has been declared hostile. 14. P.W.2 Nami Yadav, who is brother of the informant (deceased), has stated in his evidence that while he was at his Darwaza, he heard sound of some altercation and went inside the Aangan and noticed Kailash, Ram Ishwar, Ram Niwas, Bhagirath, Laxmi, Ramdas, Dharichhan, Ram Sewak, Singhasan and Parsuram armed with lathi. They were dismantling the door of his house. Shiv Bahal went to restrain them but he was caught by Bhagirath and Ram Niwas, Ram Sewak, Laxmi and others started assaulting him at the behest of Kailash. Thereafter, this witness Nami Yadav, informant Sudeshwar Singh Yadav (deceased), Ram Bali and son of this witness Jitendra went there. Sudheshwar Singh Yadav was assaulted there by Ram Niwas, Bhagirath, Laxmi, Ramdas, Dharichhan and Singhasan by lathi and on account of that impact, Sudheshwar Singh Yadav fell down. Ram Bali was assaulted by six persons namely, Ram Niwas, Bhagirath, Ram Sewak, Singhasan, Laxmi and Dharichhan and Jitendra was assaulted by Ramdas on his head, fingers, right hand, back and shoulder. This witness was also assaulted by Parsuram and Ram Sewak by lathi. This witness has further stated that Sudheshwar Singh Yadav had received injuries on legs, stomach, chest in both sides and head. After assault the accused persons escaped. This witness and others had taken the victim Sudheshwar Singh Yadav to hospital for treatment but in course of treatment on the next day in the evening he died. 15. This witness has further stated that Sudheshwar Singh Yadav had received injuries on legs, stomach, chest in both sides and head. After assault the accused persons escaped. This witness and others had taken the victim Sudheshwar Singh Yadav to hospital for treatment but in course of treatment on the next day in the evening he died. 15. P.W.2 has been supported by P.Ws.3, 4 and 5 though there are major variations with regard to scuffle and assault but those variations have not gone to the root of the occurrence. So, it can safely be said that other witnesses have also supported the prosecution case so far as the manner of assault is concerned. 16. The witnesses who sustained injuries in the occurrence were taken to hospital after issuing of injury slips (Exts. 6 to 6/4.) On 15.02.1984 P.W.6 Dr. Lallan Prasad Singh who was posted at Samraon State Dispensary examined P.W.5 Sheo Bahal Yadav and found following injuries: (i) Lacerated cut injury 1½”x1/4”x1/4” mid of scalp and skull (ii) Bruises 2”x1/2” on the right upper arm. (iii) Bruises 6”X1/2” on the back of body. (iv) Swelling left shoulder. All the injuries were simple in nature caused by hard and blunt substance. On the same day, P.W.3 Jitendra Singh was examined by this witness P.W.6 and following injury was found: (i) Swelling left shoulder The injury was simple in nature caused by hard and blunt substance like lathi. On the same very day, this witness P.W.6 examined Bali Yadav (P.W.4) and found following injuries: (i) Lacerated cut injury 1/2”x1/4”x1/4” on the right thumb. (ii) Lacerated cut injury 2”x1/4”x ¼” on the middle finger. (iii) Lacerated cut injury 1/4”x1/4”x ¼” on the mid of scalp of skull. (iv) Swelling left lower arm (v) Bruise 5”x1/2” on the right side of back of body. All the injuries were simple in nature caused by hard and blunt substance. On the same day, this witness P.W.6 examined Nami Yadav (P.W.2) and found following injuries: (i) Lacerated cut injury 2”x 1/2” x1/2” on the forehead of scalp. (ii) swelling right shoulder and left shoulder. (iii) Swelling right dorsal of Palm. Injury no.1 was grievous in nature and rest injuries were simple in nature caused by hard and blunt substance such as lathi. (ii) swelling right shoulder and left shoulder. (iii) Swelling right dorsal of Palm. Injury no.1 was grievous in nature and rest injuries were simple in nature caused by hard and blunt substance such as lathi. On the same day, this witness P.W.6 had examined Sudeshwar Singh Yadav (deceased) and found following injuries: (i) Lacerated cut injury 1”x1/2”x1/2” on the scalp of skull occipital region. (ii) Bruises 4”x1/2” on the right side of abdomen near the umlicus. (iii) swelling with tenderness, diffuse, right eliac fossa. (iv) Swelling left thumbs. (v) Swelling right side of back of body. (vi) swelling of right lower body. Injury nos. 1, 2 and 3 were grievous in nature and the rest were simple. All the injuries were caused by hard and blunt substance such as lathi. 17. This witness P.W.6 on the same day i.e. 15.2.1984 also examined Ram Ishwar Singh who was appellant no.1, now dead and found following injures: (i) Lacerated cut injury ¼”x1/4”x1/4” on right index finger. (ii) Swelling left side of back of the body. Both the injuries were simple in nature caused by hard and blunt substance. On the same day, this witness P.W.6 examined Laxmi Singh (appellant no.4) and found following injury: (i) Swelling left thigh. The injury was simple in nature caused by hard and blunt substance. On the same day, this witness P.W.6 examined Ram Niwas Singh (appellant no.2) and found following injuries: (i) Lacerated cut injury ½”x1/4”x1/4” right parietal region of scalp and skull. (ii) Swelling of left elbow arm. (iii) Lacerated cut injury ¼”x1/4”x1/4” on the vassal bone. (iv) Swelling right arm above the elbow joint. All the injuries were simple in nature caused by hard and blunt substance such as lathi. On the same day, this P.W.6 examined Darichhan Yadav (appellant no.5) and found following injuries: (i) Lacerated cut injury ¼”x1/4”x1/4” on left little finger. (ii) Lacerated cut injury ¼”x1/4”x1/4” on the dorsal of the right palm. (iii) Swelling just below the right elbow joint- All the injuries were simple in nature caused by hard and blunt substance. On the same day, this witness P.W.6 examined Raj Mani Devi daughter of Ram Niwas Yadav (appellant no.2) and found following injuries: (i) Lacerated cut injury ½”x1/2”x1/2” on left little finger. (ii) Missing of distal portion of little finger gutter phalanx. (iii) Lacerated cut injury ¼”x1/4”x1/4” on the dorsal of the right palm. Injury nos. On the same day, this witness P.W.6 examined Raj Mani Devi daughter of Ram Niwas Yadav (appellant no.2) and found following injuries: (i) Lacerated cut injury ½”x1/2”x1/2” on left little finger. (ii) Missing of distal portion of little finger gutter phalanx. (iii) Lacerated cut injury ¼”x1/4”x1/4” on the dorsal of the right palm. Injury nos. (i) and (ii) were grievous in nature confirmed by X-ray plate. Injury no.(iii) was simple in nature. Cut injuries may be caused by farsa and hard blunt substance. On the same day, this witness P.W.6 examined accused appellant Ramdas Yadav (now dead) and found following injury: (i) Lacerated cut injury 1”x1/2”x1/2” mid of scalp of skull. Injury was grievous in nature and caused by hard blunt substance such as lathi. All the six injury reports of the defence side have been marked as Exts. A to A/5. 18. The specific defence of the appellants was that there were free fighting and in the same transaction the accused persons were also sustained injuries and the injury reports of those injured have been brought on the record as Exts.A to A/5 which have not been explained by the prosecution. The two injuries of the daughter of appellant Ram Niwas Yadav were definitely grievous in nature and its non-explanation goes to show that the prosecution has played the role of hide and sick than to expose. 19. The fardbeyan notices the presence of two independent witnesses. It has come in the fardbeyan that family members of the informant and accused Kailash Yadav were residing in the portion of the same house after khangi partition. The cause of occurrence was that sons of Kailash Yadav were stealthily opening the door in the northern side which was intervened and was objected to by son of the informant Sheo Bahal Yadav (P.W.5) which resulted into assault because the door of that side was closed as there was a door in the southern part of the house. When informant Sudheshwar Singh Yadav (deceased), Nami Yadav (P.W.2) and Ramabli Yadav (P.W.4) and Jitendra Yadav went there, they were also assaulted. Nami Yadav (P.W.2) and Rambali alias Bali Yadav (P.W.4) are brothers of the deceased Sudeshwar Singh Yadav. P.W.3 Jitendra Singh is nephew of the informant and is son of Nami Yadav (P.W.2). These witnesses were definitely the most interested witnesses. Nami Yadav (P.W.2) and Rambali alias Bali Yadav (P.W.4) are brothers of the deceased Sudeshwar Singh Yadav. P.W.3 Jitendra Singh is nephew of the informant and is son of Nami Yadav (P.W.2). These witnesses were definitely the most interested witnesses. In the present case, not even one independent witness has been examined on behalf of the prosecution though the occurrence is of a village where many independent persons might have been present who could have easily perceived. P.W.4 has stated in court that on hue and cry, 10-20 persons arrived at the place of occurrence and similar is the evidence of P.W.3 Jitendra Yadav but none of them was examined as prosecution witness. The evidence adduced is to the effect that it was a case of mutual fighting in which the informant (deceased) received injuries by lathi. There is no evidence that the accused persons have any other weapon than lathi. On the other hand, the defence claimed that the informant’s side were armed with farsa, lathi (vide Ext.B) and the injuries were on both sides. The injuries on other side, which were grievous in nature, were not explained by the prosecution. The accused persons were also examined by the same doctor who had occasion to examine as prosecution witness and even then also no explanation has been given by the prosecution to it as to how the accused persons have received injuries. P.W.2 in paragraph 5 has stated that on the date of occurrence there was only one occurrence but later on he has admitted that in Samraon State Dispensary the accused persons also were carried for treatment and thus he has admitted the injury on the defence side but still has not been able to explain as how the accused persons received injury though the injury of one of the injured, who was a lady, was grievous in nature. Thus, non-explanation of the injury on the other side has created doubt of the prosecution version. This fact could have been explained by the Investigating Officer but his non-examination has definitely caused prejudiced to the accused persons who could have taken such defence and he could have well explained as to how the accused persons have received injuries and that was the material fact which ought to have been taken into account but this has not been taken into account. It was the onus upon the prosecution for bringing all the facts together but it has not discharged its duty properly. Thus it can be said that the prosecution has failed to discharge its onus in proving its case. In this way, we are of the view that the prosecution has not come with true version of the case and the true version appears to have been withheld by the prosecution. Thus, the narration of the occurrence as unfolded by the prosecution is doubtful. 20. Another fact which requires to be taken into account is that the definite case of the prosecution right from the fardbeyan was that the occurrence took place on 15.02.1984 and the witnesses have unequivocally stated that the occurrence was of 15.02.1984 but the statement of the accused persons under Section 313 of the Code of Criminal procedure gives another date of occurrence i.e. 15.07.1984 and not even one accused has stated that the evidence has come that they have assaulted the informant (deceased) and others on 15.07.1984. All the accused persons were told that on 15.07.1984 they have assaulted the accused that was not the evidence. In this score it is said that all the nine accused persons were given opportunity to take their proper defence but this appears to be a typographical error and nobody has raised any objection regarding date of occurrence on 14.12.1988, the day when statement of the accused under Section 313 of the Code of Criminal procedure was recorded. For the time being, it can be ignored but after taking into consideration the other facts and circumstances it can be said that the prosecution has not explained the true version of the occurrence and thus a doubt has been created with regard to the prosecution version. If a doubt is created, then in criminal cases it goes in favour of the accused. In our view, there is no material available on the record to show that the prosecution has been able to prove the charges against the appellants beyond the shadow of all reasonable doubts. Thus, the appellants deserve to be acquitted. 21. In the result, the judgment of conviction and order of sentence is set aside and this appeal is allowed. The appellants are acquitted of the charges and they are discharged from the liabilities of their respective bail bonds. 22. Thus, the appellants deserve to be acquitted. 21. In the result, the judgment of conviction and order of sentence is set aside and this appeal is allowed. The appellants are acquitted of the charges and they are discharged from the liabilities of their respective bail bonds. 22. As none was appearing on behalf of the appellants in this appeal, Mr.Kumar Kaushlendra, Advocate was appointed as Amicus Curiae to assist the Court on behalf of the appellants and he has argued well. We appreciate the assistance given by Mr. Kaushlendra. 23. Let a copy of first page and last page of the judgment be given to Mr. Kaushlendra, Advocate so that he may get his prescribed fee from High Court Legal Services Committee, Patna.