JUDGMENT (ORAL) S.K. Sharma, J.-Above named four appellants have preferred the instant appeal against the judgment of conviction and order of sentence dated 14th March, 1989 passed in Sessions Trial No. 214 of 1986/21 of 1988 relating to Siswan P.S. Case No. 55 of 1982 by the learned 2nd Additional Sessions Judge. Siswan by which appellant No. 1 has been convicted for the offence punishable under Section 302 IPC and appellant Nos. 2 to 4 have been convicted under Sections 302/149 of the Indian Penal Code and all have been sentenced to undergo rigorous imprisonment for life. 2. On the basis of statement made in fard-beyan (Ext. 6) of Manan Harizan (PW 6-A) before the Assistant Sub-Inspector of Police Siswan Police Station, the case has been registered. The allegation relates to an occurrence of about 8.00 p.m. on 27.6.1982 when the informant, his co-villagers and villagers of village Saraut, 100 in numbers, took out lukari from the village. This function was being organized annually to drive away the evil which• was being suspected to be carried to the cattles of village which was affecting the cattles in the form of diseases. The lukari was taken from the village and it was thrown to the boundary of other village. The mob in the form of procession went towards East and South in Diyara. All were keeping mum but the persons of the procession were having lathi and lukari. The processionist crossed nala near the hut of Brahmacharijee, thereafter, Kishundev Harijan (deceased), brother of the informant, was surrounded by the accused persons and one Bhikhi Choudhary (who later on died). Allegation is that amongst the surrounding accused persons Ramadhar Choudhary and Bhagwan Lal Choudhary both of them gave bhala blows to Kishundev Hartjan. Bhala blow given by Ramadhar Choudhary hit in the left portion of the chest of Kishundev Harijan whereas bhala blow given by Bhagwan Lal Choudhary hit upon the testicles of Kishundev, Harijan. On account of aforesaid assault, Kishundev Harijan fell down and accused persons took their heels. The informant found his brother unconscious. While he was carried to the village, he succumbed to the injuries. Some litigation with the informant on one side and the accused persons on other side were the motive of the occurrence. The occurrence was witnessed by Khakhan Harijan (PW 4), Chandrama Ram (PW 3), Sheojee Harizan (PW 1), Baleshwar Harijan (PW 7) and others. While he was carried to the village, he succumbed to the injuries. Some litigation with the informant on one side and the accused persons on other side were the motive of the occurrence. The occurrence was witnessed by Khakhan Harijan (PW 4), Chandrama Ram (PW 3), Sheojee Harizan (PW 1), Baleshwar Harijan (PW 7) and others. The fard-beyan of the informant resulted in formal FIR (Ext. 2) vide Siswan P.S. Case No. 55 of 1982. After investigation, charge sheet was submitted. After completion of all paraphernalia i.e. after appearance of all the parties and supply of police papers, the case was committed to the Court of Sessions where the charges were explained to the accused persons. The defence of the accused persons was of false implication on account of enmity which has been admitted in the fard-beyan itself. 3. Before the learned trial Court, the prosecution examined altogether 13 witnesses. They were Sheojee Harizan (PW 1), Chandeshwar Prasad (PW 2), Chandrama Ram (PW 3), Khakhan Harijan (PW 4), Ganesh Ram (PW 5), Mukhram (PW 6), Manan Harijan (PW 6 A), Baleshwar Harijan (PW 7), Bhagu Harijan (PW- 8), Nawal Kishore Singh (PW 9), D. N. Srivastava (PW 10), Sheo Kumar Sharma (PW 11) and Gopi Krishna Bihari Prasad (PW12). 4. PW 2 is a formal witness and has proved the writing of fard-beyan and formal FIR which has been marked as Exts. 1 and 2. PW 5 Ganesh Ram has signed upon the seizure list (Ext. 5) and he is not the witness of occurrence rather he is the witness of the seizure list of lukari and bloodstained soil. PW 7 is an FIR named witness but he has been tendered by the prosecution. 5. PW 12 who has come after much persuasion has been tendered. He is an official witness and it does not appear as to why he was tendered. PW 6-A is the informant and brother of the deceased. PW 10 has conducted post-mortem upon the dead body of the deceased and prepared the post mortem report (Ext. 7). PW 9 is the Assistant Sub-Inspector of police and has recorded the fardbeyan and occurrence has been investigated into by PW 11. The defence has not examined any witness. 6. PW 6-A is the informant and brother of the deceased. PW 10 has conducted post-mortem upon the dead body of the deceased and prepared the post mortem report (Ext. 7). PW 9 is the Assistant Sub-Inspector of police and has recorded the fardbeyan and occurrence has been investigated into by PW 11. The defence has not examined any witness. 6. The learned trial Court after considering the submissions and after analyzing the evidence came to the opinion that the prosecution has been able to prove the charge under Section 302 of the Indian Penal Code against Ramadhar Choudhary appellant No.1 and under Section 302/149 IPC against other three appellants. 7. Now, this Court has to see as to whether the prosecution has been able to prove its charge against the appellants beyond the shadow of all reasonable doubts or not? 8. PW 1 is a named witness to the occurrence. He has stated that 4 years and 11 months prior to his deposition at 8.00 p.m. the villagers were carrying lukari. At that time Chandrama Ram (PW- 3), Khakhan Hairjan (PW 4) and Bishundev Harijan (not examined) were amongst the processionist. They went near Bramchari Mathia in Diyara and found Ramadhar, Bhagwan, Bikhi, Bir Bahadur and Surendra Singh who were behind this witness. Ramadhar and Bhagwan were having bhala and rest were having lahthi. Bir Bahadur and Surendra Singh were instigating Ramadhar and Bhagwan. Thereafter, Rama1har pierced a bhala blow upon Kishundev Harijan which caused injury upon his left chest and while Kishundev was being assaulted then other accused persons were encircling him. Kishundev fell down as a result of bhala blow and thereafter all escaped. The injured was being taken for treatment but he died. The Officer Incharge of the Police Station and the chowkidar came and fard-beyan of Mannan Harlan (PW 6-A) was recorded. About Bhikhi Chaudhary, it was stated that he has already died. 9. According to the deposition of this witness (PW 1), he has seen the entire occurrence but his attention was drawn towards his statement under Section 161, Cr.P.C. which was made before the I.O. Attention of the I.O. was drawn towards the statement of PW 1 Sheojee Harijan and I.O. has stated that this witness has not claimed himself to be an eye witness to the occurrence. The statement of I. O. PW 11 in paragraph 10 is relevant for the present. The statement of I. O. PW 11 in paragraph 10 is relevant for the present. In the statement recorded under Section 161 of the Cr.P.C., PW 1 has stated that he has heard about the occurrence through Mukhram (PW 6), therefore, this witness is not a witness to the occurrence and he has inflated his statement and so he cannot be said to be a reliable witness. 10. PW 3 has supported the version of PW 1 so far as manner of assault is concerned. He has stated that Ramadhar gave bhala blow upon the chest of Kishundev and as a result of which he fell down. Though he has supported the occurrence as an eye witness but the Investigating Officer (PW 11), in paragraph 11 of his deposition, has stated that before him Chandrama Ram has detailed the occurrence as a hear-say witness and he has denied that he witnessed the occurrence. Therefore, this witness cannot be said to be an eye witness who has witnessed the occurrence rather he is a hear-say witness and he has developed the story later on when his evidence was taken before the learned trial Court. 11. PW 4 Khakhan Harijan, in paragraph 1 of his deposition, stated that the processionists were 150 in numbers. He later on states that Ramadhar assaulted Kishundev by bhala as a result of which he fell down and he had identified the accused persons in the light of lukari. He has given another version in his cross-examination that the villagers of two villages Siswan Sal Bhagal quarrelled and all the persons tried to escape and in that course Kishundev Harijan received injuries. The version of PW 4, in paragraph 8, has given another twist to the occurrence when he has stated that the injuries were caused when villagers of two villages entered into scuffle. In paragraph 9, he has stated that he heard from Mannan (PW 6A) that Kishundev was assaulted. Initially this witness has supported the prosecution case as an eye witness and when attention of the I.O. was drawn towards the statement of PW 4 then he has stated that this witness has heard about the occurrence from Manan Harijan (PW 6A) that the occurrence has taken place in which Kishundev has been injured. Initially this witness has supported the prosecution case as an eye witness and when attention of the I.O. was drawn towards the statement of PW 4 then he has stated that this witness has heard about the occurrence from Manan Harijan (PW 6A) that the occurrence has taken place in which Kishundev has been injured. Therefore, this witness is not an eye witness to the occurrence and he is a hear-say witness and that too he has given two versions, therefore, this witness is also not a reliable witness. 12. PW 6 has stated that he was one of the members of the processionists who were carrying lukari for throwing it to other village. In paragraph 1 of his deposition, he stated that lukari was thrown into the river and when he was returning then he found the dead body of Kishundev. This witness in paragraph 6 of his deposition has stated that the dead body was found inside the Balia district which is in the State of U .P. 13. The fard-beyan was recorded only after 2 and 1/2 hours of the occurrence. In the fard-beyan, PW 6 A has given role of assault to Ramadhar Chaudhary and Bhagwan Chaudhary who have assaulted upon chest and testicles of the deceased respectively. The post mortem upon the dead body of the deceased was performed on 28.4.1982 at 11.00 a.m. by PW 10. The doctor has found one penetrating wound with sharp margin over the left side of the chest just near the nipple, 1 1/4" x 1/2" deep x the chest cavity. There is no any second injury which has been attributed in the fard-beyan by the informant. After analyzing the post mortem report, the allegation as made out in the fard beyan becomes doubtful and it appears and only inference can be drawn at this stage was that the informant was not an eye witness to the occurrence and later on he developed the story by saying that only one assault was given and that was attributed against appellant No.1 only. Witnesses who were initially examined before the I. O. have not seen the occurrence and they have come to know through others and this may be the reason of twisting the evidence later on when the I. O. was examined before the Court. Witnesses who were initially examined before the I. O. have not seen the occurrence and they have come to know through others and this may be the reason of twisting the evidence later on when the I. O. was examined before the Court. The fard beyan described about the assault upon the deceased and it could be explained as to what happened to the injury caused by bhala upon the testicles of the deceased which has been attributed to Bhagwan Chaudhary. It means that the witnesses have not seen the occurrence. 14. In the evidence it has come that there was the ritual of throwing lukari for getting rid of the evil from the particular village of the informant and throwing it to the neighbouring village. If such ritual is followed, then it is apparent that the neighbouring villagers would retaliate. It has come in evidence that it was retaliated and that has followed in altercation which has resulted into assault to Kishundev Harijan, Khakhan Harijan (PW 4) is specific in paragraph 8 of his deposition when he has stated that villagers of two villages quarreled and thereafter, others tried to escape and in that course Kishundev Harizan received injury. This explanation appears to be bonafide explanation. Witnesses inflating their case during evidence cannot be appreciated when they have differed from their first version which was given before the Investigating Officer and none of the witnesses claimed themselves to be the eye witness. 15. PW 11 is specific and his attention was drawn towards the statements of witnesses which were recorded by him in course of investigation. Therefore, eye witnesses have confronted the fard beyan which was recorded soon after the occurrence and lacuna in the depositions of the eye witnesses has been compounded by the evidence of PW 11. Therefore, the eye witnesses relied upon by the prosecution were not the witness of the occurrence. 16. Learned counsel for the appellant has drawn attention towards the statement of the accused persons which was recorded under Section 313, Cr.P.C. 17. We have perused the statements of the accused persons made under Section 313, Cr.P.C. It is a very sketchy narration of the facts which has come on the record. The accused persons are required to explain the circumstances which have come during trial. We have perused the statements of the accused persons made under Section 313, Cr.P.C. It is a very sketchy narration of the facts which has come on the record. The accused persons are required to explain the circumstances which have come during trial. Such substances have to be read and explained to the accused persons so that they could give proper reply. If the substances are not narrated to them then definitely they should not be in a position to give proper reply that has happened in the present case also. 18. Ramadhar Chaudhary has been explained as to by which instrument he has committed the murder. Similarly others also have been put by identical question. Reliance has been placed on the judgment in the case of Ganesh Gogoi v. State of Assam, reported in AIR 2009 SC 2955 , Asraf v. State of Assam. AIR 2009 SC (Supp) 654 and in the case of Sharad Birdhichand Sarda v. State of Maharashtra, reported in AIR 1984 SC 1622 : 1984 East Cr C 559 (SC). 19. If the statement under Section 313, Cr.P.C. does not reflect the detail/details which has come during investigation then the defence gets prejudiced and in such circumstances it can be said that the trial is vitiated. Same has happened here also. 20. Another fact which has come in evidence is the examination of PW 2 who appears to be an official witness and order sheet of the case shows that he has come after much persuasion but he was tendered by the prosecution. Learned counsel for the appellant submitted that the occurrence was in another State and not in the jurisdiction of the Court of Siwan because the occurrence took place in the district of Balia in the State of U.P. It has come in evidence of the Investigating Officer and witnesses also that some part of the investigation was conducted by the Ballia Police but that investigation has not been brought on the record. PW 6 A in paragraphs 2 and 3 has stated that he was having difficulty if the case would have been allowed to continue in the State of U. P. Then the I. O. has described the place of occurrence and has categorically stated in paragraph 16 that the place of occurrence was in the Police Station of Sahatbar in the district of Balia U.P. It is apparent that the place of occurrence of the case is in another district and in another State. No doubt, if a portion of offence is committed in different jurisdiction then the case can be carried out at any place but it appears that the informant was having difficulty in pursuing his case in the State of U. P. and it cannot be said that such ground will give jurisdiction to a particular case. No doubt dead body was found in the State of U.P. but some portion of the occurrence i.e. seizure of blood, seizure of lukari was in the State of Bihar so this shows that the district of Siwan in the State of Bihar has also the jurisdiction. Jurisdiction of a criminal case in conclusion of trial is described in Chapter 13 of the Code of Criminal Procedure. Ordinarily the place of inquiry or trial is the place in whose jurisdiction the offence is committed but Section 178 of the Cr.P.C. clarifies that if it is uncertain in which of several local areas an offence was committed or when an offence is committed partly in one local area and partly in another then either of the place have the jurisdiction. Therefore, the question of territorial jurisdiction is not material for the case and it is held that the Court of Siwan had the jurisdiction to try the case. 21. Coming on the merit of the case, it is apparent that the initial version of the prosecution as described in the fard beyan regarding two bhala blows have been given a complete go bye and after receipt of the post mortem report which exhibits only one piercing injury then the prosecution case has given a U-turn that only one person has given bhala assault. The witnesses who have been named in the fard beyan have not supported the prosecution story as an eye-witness when they were examined under Section 161, Cr.P.C. This fact has come in the evidence of the Investigating Officer. The witnesses who have been named in the fard beyan have not supported the prosecution story as an eye-witness when they were examined under Section 161, Cr.P.C. This fact has come in the evidence of the Investigating Officer. There, has been complete absence of compliance of Section 313, Cr.P.C. The enmity is mentioned in the FIR. The accumulative effect of the evidence is that the prosecution has not been able to prove the charge that on the date and time of occurrence as alleged was caused by the accused persons. 22. 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. Appeal allowed.