ORDER (Per: Hon'ble Mr. Justice Ashwani Kr Singh) The appeal is directed against the judgment and order dated 15th June, 1989 passed by the 3rd Additional Sessions Judge, Nawada in Sessions Trial No. 118 of 1987/122 of 1984 by which, appellant no. 1, Moti Mahto, and appellant no. 4 Bhagwan Mahto have been convicted for the offence punishable under Section 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life and appellant no. 2 Mosafir Prasad, appellant no. 7 Kishun Mahto, appellant no. 3 Vijay Prasad, appellant no. 8 Chandrika Prasad, appellant no. 6 Amrit Mahto, apellant no. 5 Meghu Mahto have been convicted for the offence punishable under Section 302 read with Section 149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. 2. The prosecution case is based on the fardbeyan of one Rajdeo Prasad @ Rajdeo Yadav made at 1 p.m. on 4.11.1979 regarding the occurrence which is alleged to have taken place on the same day at about 7 a.m. In the first information report it is alleged that on the relevant date and time of occurrence Bhuneshwar Yadav (deceased) alongwith Rajdeo Prasad, Babulal Yadav, Lachchu Yadav, Nanhku Yadav, Anant Manjhi, Pokhi Yadav, Nanhku Manjhi, Balaram Yadav, Kuldip Yadav, Vijay Yadav and others, left Village-Marhpa for harvesting paddy crop in Village-Manjhgama where he had landed property from his mother-in-law. When Bhuneshwar Yadav and others, named above, reached at the outskirt of Village-Manjhagama near river, Moti Mahto, Budhan Mahto, Chandrika Mahto, Sukhdeo Mahto, Ragho Mahto, Bhagwan Das, Vijay Mahto, Musafir Mahto, Kishun Mahto and Meghu Mahto, who came variously armed, intercepted them. Appellant No. 1 Moti Mahto is alleged to have exhorted his companions to kill them as they had come to harvest the paddy crop and at the instance of the appellant Moti Mahto, Budhan Mahto is alleged to have fired from his country-made gun causing injury to the deceased Bhuneshwar Mahto who fell down and other accused persons accompanying Budhan Mahto brutally assaulted Bhuneshwar Mahto with 'Lathi', 'Garasa' and other weapons. Bhuneshwar Mahto died on the spot as a result of injuries sustained by him. The other persons who had come alongwith the deceased to harvest the paddy crop were also chased by the accused persons. Some of them were apprehended and confined too. Bhuneshwar Mahto died on the spot as a result of injuries sustained by him. The other persons who had come alongwith the deceased to harvest the paddy crop were also chased by the accused persons. Some of them were apprehended and confined too. The informant Rajdeo Prasad managed to escape and reached the police station where his fardbeyan was recorded on the basis of which Sirdalla P.S. Case No. 2 of 1979 was instituted and investigation was taken up. The dead body of the deceased Bhuneshwar Yadav was sent for post mortem examination to Sadar Hospital, Nawada. P.W. 12 Dr. R.P. Sethi conducted post mortem examination on the dead body of the deceased on 5.11.1979 at 12 noon. The police on completion of investigation submitted chargesheet in the case. Since the offence alleged was exclusively triable by a court of sessions, the case was committed to the court of sessions. All the accused persons who were sent up for trial were charged with the allegation that they were members of an unlawful assembly and common object of which was to commit murder and in pursuance of the object they committed murder by intentionally causing the death of Bhuneshwar Yadav and thereby they committed the offence punishable under Section 302/149 of the Indian Penal Code. The charges were read over and explained to the accused persons to which they pleaded not guilty and claimed to be tried and, accordingly, the trial commenced. It is to be noted that in all eleven persons were put on trial in connection with the offence alleged but out of eleven accused persons three, namely, Budhan Mahto, Ragho Prasad and Sukhdeo Prasad were acquitted by the trial court. 3. The prosecution examined thirteen witnesses in all in order to prove the charges. Out of thirteen witnesses examined on behalf of prosecution, P.W. 4 Lachchu Mahto, P.W. 6 Vijay Yadav, P.W. 8 Balram Yadav @ Raj Balram Prasad and P. W.10 Pokhi Yadav have been tendered by the prosecution. P.W. 13 Md. Islam is a formal witness, who has brought formal first information report (Ext.-4) and the police case diary (Ext.-5) on record. P.W. 9 Dr. M.P. Barnwal is said to have examined the injured Babulal Yadav (PW. P.W. 13 Md. Islam is a formal witness, who has brought formal first information report (Ext.-4) and the police case diary (Ext.-5) on record. P.W. 9 Dr. M.P. Barnwal is said to have examined the injured Babulal Yadav (PW. 2), Jagdish Yadav (P.W. 3), Nanhku Yadav (not examined), Jamuna Kahar (P.W. 7), Bandho Yadav (not examined) and Dwarika Yadav (P.W. 1) and found lacerated wound, swelling and bruise on their persons. P.W. 12 Dr. R.P. Sah was a Civil Assistant Surgeon at the relevant time and he held post mortem examination on the dead body of the deceased, Bhuneshwar Yadav. P.W. 11 Rajdeo Prasad is the informant of the case and P.W. 1 Dwarika Yadav, P.W. 2 Babulal Yadav, P.W. 3 Jagdish Yadav, P.W. 5 Kuldip Yadav and P.W. 7 Jamuna Kahar are the witnesses who claim to have witnessed the occurrence. 4. The defence of the appellants is of false implication due to land dispute and that on the previous night the deceased Bhuneshwar Yadav and his associates had raided the house of the appellant Moti Mahto, looted his properties and damaged his house. In the meantime, the villagers assembled and in an encounter with the villagers Bhuneshwar Yadav was killed for which Sirdalla P.S. Case No.1 dated 4.11.1979 was registered on the information lodged at the police station by appellant no.1 Moti Mahto. The said case was instituted prior to the institution of the present case. 5. It is to be noted here that no charge was framed in the case under Section 302 of the Indian Penal Code against any of the accused persons. The prosecution has placed reliance on the evidence of P.W. 1 Dwarika Yadav, P.W. 2 Babulal Yadav, P.W. 3 Jagdish Yadav, P.W. 5 Kuldip Yadav, P.W. 7 Jamuna Kahar and P.W. 11 Rajdeo Prasad Yadav, who claim to have witnessed the occurrence. 6. The evidence of Rajdeo Prasad @ Rajdeo Yadav (P.W. 11) in course of trial was that on the alleged date of occurrence he alongwith his uncle Bhuneshwar Yadav (deceased), Babulal Yadav, Nanhku Yadav, Pokhi Yadav, Anant Yadav, Nanhku Manjhi, Balram Yadav, Vijay Yadav, Jamuna Kahar and other labourers had gone to Village-Manjhgama for harvesting paddy crop over the land which his father had acquired from his mother-in-law. When they reached near Devi Asthan in Village-Manjhgama, Bhuneshwar Yadav told them to stay and proceeded alone towards the village. When they reached near Devi Asthan in Village-Manjhgama, Bhuneshwar Yadav told them to stay and proceeded alone towards the village. Immediately thereafter he saw Bhuneshwar Yadav being chased by Moti Mahto, Budhan Mahto, Bhagwan Das, Vijay Manjhi, Musafir Mahto, Chandrika Mahto, Kishun Mahto, Sukhdeo Mahto, Amrit Mahto, Ragho Mahto and Meghu Mahto. Budhan Mahto is alleged to have fired from his gun causing injury as a result of which Bhuneshwar Yadav fell down. Thereafter, Budhan Yadav sat on the chest of Bhuneshwar Yadav and Moti Mahto with Tangi, Bhagwan Mahto with Garasa and other accused persons with Lathi started chasing them. Some of them were apprehended by the accused persons. He himself managed to escape and came to his house. He went to the police station and lodged his fardbeyan on the basis of which the police instituted first information report and commenced investigation. He has proved his signature on the fardbeyan which has been marked as Ext.-2. 7. P.W. 1 Dwarika Yadav in course of trial deposed that on the alleged date of occurrence he alongwith Bhuneshwar Yadav, Kuldip Yadav, Balram Yadav, Vijay Yadav, Rajdeo Prasad and labourers went to Village-Manjhgama. When they reached near Devi Asthan, Bhuneshwar Yadav asked them to stay he himself proceeded for the village. Immediately thereafter he witnessed Bhuneshwar Yadav being chased by Mati Mahto, Budhan Mahto, Bhagwan Yadav, Musafir Prasad, Vijay Prasad, Chandrika Yadav, Amrit Yadav, Kishun Yadav, Ragho Yadav, Sukhdeo Yadav and Meghu Yadav. Accused Mati Yadav was armed with Tangi whereas Bhagwan Yadav and Budhan Mahto were armed with Garasa and gun respectively. The accused persons accompanying them were armed with Lathi. He further deposed that firstly Bhuneshwar Yadav sustained gun shot injury upon firing made by Budhan Mabto as a result of which he fell down on the ground. Thereafter, Budhan Mahto sat on the chest of Bhuneshwar Yadav and Mati Mahto and Bhagwan Yadav assaulted him with their respective arms. The other accused persons who were accompanying Budhan Mahto, Mati Mahto and Bhagwan Yadav started to chase the informant and others who had come together with Bhuneshwar Yadav. They managed to apprehend Kuldip Yadav, Vijay Yadav, Budhan Mahto, Babulal Yadav and Jamuna Kahar. They assaulted them too. They took them to the house of Mati Mahto where the police subsequently came and took them to the police station. 8. They managed to apprehend Kuldip Yadav, Vijay Yadav, Budhan Mahto, Babulal Yadav and Jamuna Kahar. They assaulted them too. They took them to the house of Mati Mahto where the police subsequently came and took them to the police station. 8. P.W. 2 Babulal Yadav, P.W. 3 Jagdish Yadav, P.W. 4 Kuldip Yadav and P.W. 7 Jamuna Kahar have also deposed almost similar to the deposition of P.W. 1. They all claimed to have accompanied Bhuneshwar Yadav to village Manjhgama for harvesting paddy crops. They all have stated that Bhuneshwar Yadav asked them near Devi Asthan to stay and he himself proceeded towards village Manjhgama. Immediately thereafter Bhuneshwar Yadav was chased by the accused persons. They all have stated that it was Budhan Mahto who fired first causing gun shot injury to Bhuneshwar Yadav as a result of which he fell down and thereafter Budhan Mahto sat on his chest and Moti Mahto and Bhagwan Prasad assaulted him with their respective weapons. Their testimony about apprehension of some of, them by the accused persons who chased them and took them to the house of Moti Mahto from where they were taken by the police is also similar to that of P.W. 1 Dwarika Yadav. 9. As stated above, P.W. 12 Dr. R.P. Sah had conducted post mortem examination on the dead body of the deceased. He also proved post mortem report which has been marked as Ext.-3. While being examined in the court he has stated that he held autopsy over the dead body of Bhuneshwar Yadav on 5.9.1987 and found the following ante mortem injury on the dead body:- (i) Lacerated wound 1" x 1/2"x deep upto skull bone behind right ear. (ii) Fracture of lower 3rd of right radius. (iii) Fracture of lower 3rd of fibula and tibia right side. (iv) Fracture of middle of left humaus bone. (v) Cut wound 1" x 1/2" x deep to lung on below left scapula (vi) Cut wound 1" x 1/2"x skin deep left shoulder. (vii) Cut wound 1/2" x 1/2" x deep lung to left side lower part of back. (viii) Cut wound 1" x 1/2' x deep up to bone lower 3rd of left leg anterior aspect. 10. According to P.W. 12 (Dr. R.P. Sah), injury nos. 1, 2, 3 & 4 were caused by hard and blunt substance like Lathi, Injury Nos. (vii) Cut wound 1/2" x 1/2" x deep lung to left side lower part of back. (viii) Cut wound 1" x 1/2' x deep up to bone lower 3rd of left leg anterior aspect. 10. According to P.W. 12 (Dr. R.P. Sah), injury nos. 1, 2, 3 & 4 were caused by hard and blunt substance like Lathi, Injury Nos. 5 & 7 were caused by sharp edged weapon such as Tangi and injury nos. 6 & 8 were caused by sharp cutting weapon such as Garasa. The death in the opinion .of the doctor was caused due to haemorrhage and shock produced by the above injuries which were sufficient; in ordinary course of nature to cause death. 11. It may be noted here that since the investigating officer died in course of trial, he could not be examined. P.W. 13 Md. Islam who was an Advocate Clerk proved the police case diary which has been marked as Exhibit-5. The first information report has also been proved by P.W. 13 which has been marked as Ext.-4. 12. P.W. 9 Dr. M.P. Barnwal had examined injured Babulal Yadav, Nanhku Yadav, Yamuna Kahar, Bandho Yadav and Dwarika Yadav. In cross-examination P.W.9 has admitted that such injuries found on the person of the injured persons could have been possible due to fall. He further admitted that though he examined the injured persons on 4.11.1989 but the injury report was issued on 5.11.1979. He also admitted that there is nothing in the injury report to suggest that at what time it was prepared on 5.11.1979. Since no charge was framed against any accused for the injuries found on the person of the injured persons the evidence with regard to the injuries found on their person is of no significance. 13. Mr. Anuj Prakash, learned counsel appearing for the appellants, has pleaded that the trial court had adopted an extraordinary procedure inasmuch as it had not only looked into the case diary to find out corroboration for the prosecution evidence but admitted the entire case diary as evidence and got it marked as exhibit. He submits that this procedure was unknown to law and, therefore, unacceptable. He submits that this procedure was unknown to law and, therefore, unacceptable. He has drawn our attention in this regard towards paragraph 15 of the trial court's judgment which reads as follows:- "It is an admitted fact that the I/o who contributed towards investigation was not examined by the prosecution at trial and there is plausible explanation on part of the prosecution for its failure to examine the police officer. The evidence of Md. Islam (P.W. 13) who brought F.I.R. and police case diary on the record do indicate that Sita Ram Singh who contributed towards investigation of the case was dead and I find that the prosecution did all the best which it could have done by placing the police case diary on the record which is (Ext.-5). Attention of some of the witnesses as has been discussed, to their previous versions made before the investigating officer was drawn and I find that this part of the statement was duly proved by bringing the case diary on the records and thus the grievance of the counsel for the defence about serious prejudice due to non-examination of the police officer does not bear much significance. Since the I/o was dead the prosecution has fairly got the relevant Part of the diary proved in evidence to avoid prejudice. Apart from that I find that there are no material contradictions in the statement of witnesses affecting the broad features of the prosecution case. It at all Dwarika Yadav (PW-1) did not render any statement before the police about apprehension of Kuldip, Vijoy, Bandho, Babulal & Jamuna Kahar and assault made on them, it did not bear much relevancy affecting the sub-stratum of the prosecution case. Similarly even if there was failure on their part to render similar statement before the police about proceeding to village Manjhgama at about 7 a.m. on the full moon day, it was hardly on any significance. Similar was the case with the evidence of Babulal Yadav (PW-2). In this background I find that the witnesses did not make contradictory statement on material particular of the case and as such their statements should be rejected. Similar was the case with the evidence of Babulal Yadav (PW-2). In this background I find that the witnesses did not make contradictory statement on material particular of the case and as such their statements should be rejected. Since the I/o is dead and the police case diary has been p aced on the record, the objective finding contained in the diary could suggest that though there was no marks of blood near Devi Asthan in village Manjhgama there were trampling marks near Devi Asthan in the field of paddy crop." 14. We have considered the arguments advanced by learned counsel for the appellants. By now it is well settled that a criminal court can send for the police diaries of a case under inquiry or trial in such court, and may use such diaries, not as evidence in the case but to aid it in such inquiry or trial. The facts of the case reveal that the investigating officer had died and it is in this situation that the Trial Judge allowed the case dairy to be exhibited and marked it as Ext.-5. Chapter-XII of the Code of Criminal Procedure deals with information to the police and their powers to investigate. Section 172 of the Code of Criminal Procedure has a meaningful bearing on the entire investigation by a police officer which reads as follows- "172. Diary of proceedings in investigation.-(1) Every police officer making an investigation under this Chapter shall day by day enter his proceedings in the investigation in a diary, setting forth the time at which the information reached him, the time at which he began and closed the investigation, the place or places visited by him and a statement of the circumstances ascertained through his investigation. (2) Any criminal court may send for the police diaries of a case under inquiry or trial in such court, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial. (2) Any criminal court may send for the police diaries of a case under inquiry or trial in such court, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial. (3) Neither the accused nor his agents shall be entitled to call for such diaries, nor shall he or they be entitled to see them merely because they are referred to by the court; but, if they are used by the police officer who made them to refresh his memory, or if the court uses them for the purpose of contradicting such police officer, the provisions of Section 161 or Section 145, as the case may be, of the Indian Evidence Act, 1872 (1 of 1872), shall apply." 15. Thus, we find that it is mandatory for a police officer to maintain a case dairy under Chapter-XII of the Code of Criminal Procedure where he shall enter day to day proceedings in the investigation carried out by him. He is expected to mention time of events and his departure, reporting back and closing of the investigation, place/places, he visited and the statements he recorded during investigation under Section 161 (3) Code of Criminal Procedure. 16. A criminal court is empowered under Section 172 (2) of the Code of Criminal Procedure to send for the police diaries and they could be used by the court but not as evidence in the case but to aid it in such inquiry or trial. However, sub-section (3) of Section 172 of the Code of Criminal Procedure provides that neither the accused nor his agents shall be entitled to call for such diaries, nor they are entitled to see them but it is only where the police officer who makes them to refresh his memory or the court uses them for the purpose of contradicting such police officer in terms of Section 172 then Section 161 or Section 145 of the Evidence Act would apply. It is confined to utilize the information in the case diary as foundation for the questions put to the witnesses, particularly, to the police witnesses where a police officer has used the entries to refresh his memory or if the court uses them for the purpose of contradicting such police officer then only provisions of Section 161 or 145 of the Evidence Act, would be applicable. The investigating officer has a right to refresh his memory and can refer to the general diary. The court has power to summon the case diary in exercise of its power and for the purpose stated. The accused is vested with the power or making use of the statement recorded during investigation for the purpose of contradiction and copies thereof the accused is entitled to see in terms of Section 207 of the Code of Criminal Procedure. The statement recorded under Section 161 of the Code of Criminal Procedure is not evidence per se under Section 162 of the Code of Criminal Procedure. It is well settled that the entries of the police diary are neither substantive nor corroborative evidence and they cannot be used by or against any other witness than the police officer. 17. We may usefully refer to the law laid down by the Hon'ble Supreme Court in Habib Mohd. vs. State of Hyderabad since reported in AIR 1954 SC 51 wherein it was held thus:- "Section 172 provides that any criminal court may send for the police diaries of the case under inquiry or trial in such court may use such diaries, not as evidence in the case but to aid it in such inquiry or trial. It seems to us that the learned Judge was in error in making use of the police diaries at all in his judgment and in seeking confirmation of his opinion on the question of appreciation of evidence from statements contained in those diaries. The only proper use he could make of these diaries was the one allowed by Section 172, Criminal Procedure Code, i.e., during the trial he could get assistance from them by suggesting means of further elucidating points which needed clearing up and which might be materially for the purpose of doing justice between the State and the accused." 18. Similarly, in the case of Mukund Lal Vs. Union of India since reported in AIR 1989 SC 144 , it was observed that the court is empowered to call for relevant case diary if there is any inconsistency or contradiction arising in the context of the case diary and the court can use the entries for the purpose of contradicting the police officer as provided in sub-section (3) of Section 172 of the Code of Criminal Procedure. Thus, we find substance in the argument advanced on behalf of the appellants in this regard. The trial court was certainly not justified in admitting and looking into the case diary as evidence. The trial court certainly fell in error in making use of the police diary in his judgment and in seeking confirmation of his opinion on the question of appreciation of evidence from the statements contained in the case diary. 19. Learned counsel for the appellants while arguing the case further submitted that injuries found on the person of the deceased makes the entire case doubtful. The medical evidence is in absolute contradiction to the ocular testimony of the witnesses examined in the court. The prosecution evidence suggested that it was Bhuneshwar Yadav who resorted to firing as a result of which the deceased sustained gun-shot injury and he fell down. Immediately thereafter, Budhan Yadav sat on his chest and Moti Mahto armed with Tangi and Bhagwan Prasad @ Bhagwan Mahto armed with Garasa assaulted upon the deceased as a result of which he succumbed. There is no allegation by any of the prosecution witnesses that the accused persons holding Lathi assaulted Bhuneshwar Yadav. As noted above, the doctor did not find any gun shot injury upon the person of the deceased Bhuneshwar Yadav. Further, according to the doctor, injury nos. 1, 2, 3 & 4 were caused by hard and blunt substance like 'Lathi'. There is no evidence at all that the deceased was assaulted with 'Lathi' by any of the accused persons. Thus, it is rightly contended that the medical evidence totally improbablized the ocular testimony regarding the manner of assault as alleged. It is further argued that among the prosecution witnesses P.W. 5 Kuldip Yadav and P.W. 11 Rajdeo Prasad Yadav (informant) happens to be the son of the deceased Bhuneshwar Yadav and thus closely related to the deceased. They being relations, their evidence requires to be scrutinized more carefully. In the fardbeyan, name of P.W. 1 Dwarika Yadav and P.W. 7 Jamuna Kahar did not find place. P.W. 4 Lachchu Yadav, P.W. 6 Vijay Yadav and P.W. 8 Balram @ Raj Ballam Prasad are the persons who are alleged to be accompanying the deceased. Their names find place in the fardbeyan. The prosecution has simply tendered them for cross-examination. They were the most important witnesses. P.W. 4 Lachchu Yadav, P.W. 6 Vijay Yadav and P.W. 8 Balram @ Raj Ballam Prasad are the persons who are alleged to be accompanying the deceased. Their names find place in the fardbeyan. The prosecution has simply tendered them for cross-examination. They were the most important witnesses. We fail to appreciate as to how a witness could be cross-examined, when he has not been examined-in-chief, that is, when there is nothing in relation• to which he is to be cross-examined. It would be pertinent to refer to Section 138 of the Evidence Act in this regard which reads as follows:- "138. Order of examination.-Witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires (re-examined)]. The examination and cross-examination must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief. Direction of re-examination.-The re-examination shall be directed to the explanation of matters referred to in cross-examination; and, if new matter is, by permission of the court, introduced in re-examination, the adverse party may further cross-examine upon that matter." 20. We may note it here that Section 138 of the Evidence Act envisages that a witness would first be examined-in-chief and then subjected to cross-examination and for seeking any clarification, the witness may be re-examined by the prosecution. There is no meaning in tendering a witness for cross-examination only. Tendering of a witness for cross-examination, as a matter of fact, amounts to giving up of the witnesses by, the prosecution as it does not choose to examine him in chief. The practice for tendering witnesses for cross-examination in session trial had been frequently resorted to since the enactment of Code of Criminal Procedure, 1898. Under that Code, as it stood prior to its amendment by Act 26 of 1955 a full-fledged magisterial enquiry was to be held, in a case which was triable exclusively by the court of session, in accordance with the procedure laid down in Chapter-XVIII thereof and in that enquiry prosecution was required to examine all its witnesses. Under Section 288 of that Code, the evidence of the witnesses so recorded by the Committing Magistrate could be treated, at the discretion of the Sessions Judge, as substantive evidence at the trial. Under Section 288 of that Code, the evidence of the witnesses so recorded by the Committing Magistrate could be treated, at the discretion of the Sessions Judge, as substantive evidence at the trial. The prosecution taking advantage of the above provision, used to ask for and obtain leave of the Sessions Court to treat the depositions of those witnesses whom they did not intend to examine afresh, recorded in the committal enquiry as its evidence in the trial and then tender them for cross-examination. In other words, the prosecution brought on record of the trial court and relied upon the testimonies of some of the witnesses recorded at its instance before the Committing Magistrate as its evidence during trial and then tendered them for cross-examination by the defence. It is important to mention here that Act 26 of 1955 which amended the Code of 1898 restricted the examination of prosecution witnesses in the committal enquiry in respect of cases instituted on police report only to those who were to give an ocular version of the incident only. Notwithstanding the provision of Section 288 of the Code of 1898 there is no.1, procedure whereby the prosecution is permitted to tender a witness for cross-examination only, without there being any examination-in-chief in respect of which, as a witness can be cross-examined. After coming into force of the Criminal Procedure Code, 1973, which replaced the Code of 1898; recording of evidence in commitment proceedings has been totally dispensed with and Section 288 of that Code has been omitted. We, thus, find that P.W. 4 Lachchu Yadav, P.W. 6 Vijay Yadav and P.W. 8 Balram @ Raj Ballam Prasad were wrongly permitted by the trial court to be tendered for cross-examination only. P.Ws. 4, 6 and 8, according to the prosecution case itself were the eye witnesses of the occurrence. Their evidence was of a material nature, which was necessary for unfolding of the prosecution story. The effect of there being tendered only for cross-examination amounts to failure of the prosecution to examine them at the trial. Their non-examination, in our opinion, seriously affects the credibility of the prosecution case and detracts materially from its reliability. 21. We further find that the prosecution has tried to improve its case materially in course of trial. The effect of there being tendered only for cross-examination amounts to failure of the prosecution to examine them at the trial. Their non-examination, in our opinion, seriously affects the credibility of the prosecution case and detracts materially from its reliability. 21. We further find that the prosecution has tried to improve its case materially in course of trial. The evidence led in the trial court about Bhuneshwar Yadav leaving his persons who had accompanied him for harvesting paddy crop near Devi Asthan near Village-Manjhgama as deliberately introduced for the first time in court. There is no express recital in the first information report about Bhuneshwar Yadav and the persons accompanying him reached near Devi Asthan in Village-Manjhgama where Bhuneshwar Yadav asked them to stay and proceeded for the village. The story of chasing Bhuneshwar Yadav by the accused persons is also wanting in the statement of the informant at the first instance. The informant has also not stated in the first information report that Moti Mahto and Bhagwan Mahto @ Bhagwan Prasad were holding Tangi and Garasa respectively with them with which they caused injuries to the deceased Bhuneshwar Yadav. 22. We further notice another important factor in the deposition of P.W.11 Rajdeo Prasad Yadav in course of trial. He has categorically stated in the fardbeyan recorded b¥ the police that when Moti Mahto exhorted his associates Budhan Mahto fired causing gun shot injury to the deceased Bhuneshwar Yadav. When he fell down on the ground, the other accused persons being variously armed with Lathi, Garasa and Tangi assaulted him as a result of which he died. While deposing in court he has materially changed his initial version. Though he stated about Budhan Mahto causing injury by firing upon Bhuneshwar Yadav, he did not support the other part of the prosecution case. About the complicity of Moti Mahto and Bhagwan Mahto his evidence at the trial court was that they armed with their respective weapons, chased them alongwith other persons who had 'Lathi' with them. This witness has not supported the allegation of causing injury by Tangi and Garasa upon the deceased by Moti Mahto and Bhagwan Mahto respectively. 23. We further find from the deposition of P.W. 3 Jagdish Yadav that he was not examined by the police during the investigation and he did not render any statement prior to his deposition in the court. 23. We further find from the deposition of P.W. 3 Jagdish Yadav that he was not examined by the police during the investigation and he did not render any statement prior to his deposition in the court. He does not appear to be a trustworthy witness. There is no evidence that appellant no. 2 Mosafir Prasad, appellant no. 3 Vijay Prasad, appellant no. 5 Meghu Mahto, appellant no. 6 Amrit Mahto, appellant no. 7 Kishun Mahto and appellant no. 8 Chandrika Prasad to have participated in any manner in the assault on the deceased Bhuneshwar Yadav. As noted above, we find that name of Dwarika Yadav and Jamuna Kahar P.W. 1 and P.W. 6 respectively did not find place in the fardbeyan of P.W. 11 Rajdeo Prasad Yadav whereas P.W. 4, P.W. 6 and P.W.8 whose names were already there in the first information report have been tendered by the prosecution. P.W.1 did not suggest complicity of accused Ragho Yadav and Sukhdeo Yadav before the police during his statement recorded under Section 161 Cr.P.C. There was material contradiction in the evidence of Babulal Yadav (P.W. 2) with his previous statement about complicity of the accused Kishun Mahto, Amrit Yadav, Sukhdeo Yadav and Ragho Yadav in the alleged offence. He even did not name the accused Chandrika Yadav and Ragho Yadav in his evidence before the court. Similarly, P.W. 5 Kuldip Yadav also in his previous statement recorded by the police did not name Sukhdeo Yadav and Ragho Yadav. Thus, the trial court found evidence of P.W. 1, P.W. 2 and P.W. 5 not in substantial accord with their previous versions about complicity of accused Ragho Yadav and Sukhdeo Yadav. Even PW. 6 Jamuna Kahar did not name Ragho Yadav in his evidence before the court. Though there is allegation of causing firearm injury against Budhan Mahto upon the deceased no such injury could be found in the post mortem report. Thus considering these discrepancies in the prosecution evidence the trial court acquitted accused Budhan Mahto, Ragho Yadav and Sukhdeo Yadav. Though no charge was framed for the offence punishable under Section 302 of the Indian Penal Code, the trial court convicted appellant no. 1 Moti Mahto and appellant no. 4 Bhagwan Mahto @ Bhagwan Prasad under section 302 of the Indian Penal Code and other appellants were convicted under Section 302/149 of the Indian Penal Code. 24. Though no charge was framed for the offence punishable under Section 302 of the Indian Penal Code, the trial court convicted appellant no. 1 Moti Mahto and appellant no. 4 Bhagwan Mahto @ Bhagwan Prasad under section 302 of the Indian Penal Code and other appellants were convicted under Section 302/149 of the Indian Penal Code. 24. We have heard the parties and appreciated the evidence on record. We find that the witnesses examined on behalf of the prosecution are not consistent. They have tried to materially improve the prosecution case in course of trial. The witnesses whose name find place in the first information report have been tendered for cross-examination without being examined in examination-in-chief. The witnesses who are not named in the first information report have come forward to support the prosecution case. Their narration of events make them untrustworthy. The medical evidence totally improbabilises the ocular testimony of the witnesses. The informant has completely deviated in his deposition in course of trial from his earlier version recorded by the police. If all these facts are taken together one can reach only to a conclusion that the prosecution has failed to prove its case beyond reasonable doubt as against the appellants. We, thus, find ourselves unable to sustain the conviction recorded by the trial court. 25. Accordingly, the impugned judgment and order of conviction and sentence are hereby set aside. The appeal stands allowed. The appellants who are already on bail are discharged from the liabilities of their bail bonds. Navaniti Prasad Singh, J.-I agree.