ASHWANI KUMAR SINGH, J.:–These two appeals arise out of a judgment dated 20th July, 1989 passed in Sessions Trial No.37 of 1980/105 of 1989 by 3rd Additional Sessions Judge, Motihari. 2. In Cr. Appeal No.365 of 1989 (DB) there are six appellants. They are Ganesh Mahra, Yadunandan Mahra, Dinanath Mahra, Laxmi Sah, Ram Lachan Mahto and Lal Bahadur Mahra. In Cr.Appeal No.413 of 1989 (DB) there are five appellants. They are Raja Ram Mahto, Jang Bahadur Mahra, Ram Yogeshwar Mahra, Jamuna Dusadh and Suraj Dusadh. 3. The appellants Raja Ram Mahto, Jang Bahadur Mahra and Ram Yogeshwar Mahra of Cr.Appeal No.413 of 1989 (DB) have been convicted for the offence under section 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. All the eleven appellants have been convicted separately for having committed offence under section 302 read with section 149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years. They all have also been convicted under section 148 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for three years. The trial court has ordered that the sentences would run concurrently in each of the case. 4. We may note it here that while admitting Cr. Appeal No.365 of 1989(DB) this court had issued notice to the appellants as to why the sentences of ten years R.I. imposed upon them be not enhanced to life if the convictions under section 302 are upheld. We may note it here that though the trial court had convicted all the appellants under section 302 read with section 149 of the Indian Penal Code, the sentence imposed by the trial court is only for ten years. Section 302 of the Indian Penal Code prescribes only two kinds of punishment. It can either be death or imprisonment for life but in no circumstance after holding a person guilty for the offence punishable under section 302 of the Indian Penal Code punishment to the extent of rigorous imprisonment for only ten years could have been awarded. 5. The prosecution case in brief, according to Daroga Mahto (P.W.5), who gave his oral statement on 5.9.1977 at 10 P.M. regarding an occurrence which is said to have taken place on the same day at 2.30 p.m., is that his son Ramji Mahto was working as a labourer/servant in Darpa Math. The informant’s grand daughter was ailing. 5. The prosecution case in brief, according to Daroga Mahto (P.W.5), who gave his oral statement on 5.9.1977 at 10 P.M. regarding an occurrence which is said to have taken place on the same day at 2.30 p.m., is that his son Ramji Mahto was working as a labourer/servant in Darpa Math. The informant’s grand daughter was ailing. He came to call his son Ramji Mahto (the deceased). At about 2 p.m. while they were returning to their house from Darpa Math and at about 2.30 p.m. while passing through the road near the house of Jang Bahadur Mahra altogether 16 persons named in the first information report namely, Jang Bahadur Mahra, Lal Bahadur Mahra, Jageshwar Mahra, Dinanath Mahra, Yadanandan Mahra, Ganesh Mahra, Jamun Dusadh, Suraj Dusadh, Madan Mahto, Raja Ram Mahto, Ram Lachan Mahto, Laxmi Sah, Mohammad Mian, Jugal Singh, Ramchandra Sah, Prasad Mahto and 7-8 unknown persons came out from the court yard of Jang Bahadur Mahra. They were variously armed with ‘Dabia’ and ‘Chhura’. They caught hold Ramji Mahto (deceased) and took him towards eastern direction from near the house of Jang Bahadur Mahra. They thrashed him on the road. Thereafter, accused Raja Ram Mahto and Madan Mahto repeatedly assaulted by Dabia on the neck of the deceased, Ramji Mahto. The accused Jageshwar Mahra and Jang Bahadur Mahra assaulted by Chura in the stomach and ‘Panjra’ (spleen), of the deceased Ramji Mahto. In the meantime, accused Jugal Singh and Mohammad Mian are said to have caught hold of Ramji Mahto and repeatedly assaulted upon him by ‘Chhura’ inflicting injuries on his wrists and arms. The informant tried to intervene in order to save his son but accused Jamun Dusadh and Suraj Dusadh being armed with ‘Chhura’ chased him as a result of which he ran away and raised alarm. Upon hue and cry raised by the informant, co-villagers namely Jainath Singh, Kamal Singh, Sheo Singh, Ram Lal Singh and several others came to the place of occurrence and the accused persons fled away. The informant has also stated in his fardbeyan that immediately thereafter the Havildar posted at Darpa Math together with other persons reached near the place of occurrence. The victim Ramji Mahto had sustained injuries on his neck, stomach, Panjra and hands. He died on the spot. The informant has also stated in his fardbeyan that immediately thereafter the Havildar posted at Darpa Math together with other persons reached near the place of occurrence. The victim Ramji Mahto had sustained injuries on his neck, stomach, Panjra and hands. He died on the spot. The armed police force, which was deployed at Darpa Math chased the miscreants immediately after the occurrence but the miscreants managed to escape. The dead body of the deceased was thereafter carried from the place of occurrence to the Verandah of Darpa Math by the informant and the witnesses. The informant has repeated in his fardbeyan that the accused Raja Ram Mahto and Madan Mahto were armed with ‘Dabila’ whereas the other accused persons were armed with Chhura. 6. The motive for the occurrence of the offence is alleged to be animosity prevailing between the Mahanth of Darpa Math and Binda Singh of village Sukhlahia on one side and the accused persons who had formed a gang on the other side. The victim Ramji Mahto was employed in Darpa Math and was also close to Binda Singh of Sukhlahia which caused annoyance to the accused persons and for that reason he was killed. The said oral statement of the informant was reduced into writing by one Anil Kumar Jha, a trainee Sub-Inspector of Police under the direction of Mukut Dhari Prasad Verma (P.W.6). Though the occurrence is said to have taken place at 2.30 p.m. on 5.9.1977, the fardbeyan was recorded at 10 p.m. on the same day. A formal first information report was subsequently drawn on 6.9.1977 at 7 a.m. The first information report in question was transmitted to the court and the same was received in the court on 8.9.1977. The fardbeyan has been proved and marked as Ext.3 whereas formal first information report has been proved and marked as Ext.4 in this case. After recording fardbeyan at 10 p.m. inquest report of the deceased Ramji Mahto was prepared on 5.9.1977 at 11 p.m. As per inquest report the dead body of Ramji Mahto was found in front of Darpa Math in open Verandah. Jai Nath Singh (P.W.3) and Daroga Mahto (P.W.5) are witnesses to the inquest. The inquest report has been marked as Ext.1. Surprisingly, we find police station case number scribed on the top of the inquest report. Jai Nath Singh (P.W.3) and Daroga Mahto (P.W.5) are witnesses to the inquest. The inquest report has been marked as Ext.1. Surprisingly, we find police station case number scribed on the top of the inquest report. Similarly, seizure list is also said to have been prepared at 11.15 p.m. on 5.9.1977 with respect to blood stained mud seized from near the place of occurrence. The seizure list also contains the police station case number scribed over it. The seizure list has been proved and marked as Exhibit-2 in this case. As noted earlier, the formal police case was registered at 7 a.m. the next day. The Investigating Officer of the case had prepared sketch map of the place of occurrence which also has been proved and marked as Exhibit-5. The dead body of the victim was sent for post mortem examination. Dr. Bikramaditya Pandey (P.W.7) held post mortem examination on the dead body of the deceased on 7.9.1977 at Sadar Hospital Motihari at 1 p.m. and found the following ante mortem injuries:– (i) Punctured wound of the size 2” x ½” x abdominal cavity. Intestine was out and blood clot was found present. (ii) Punctured wound of the dimension ¾” x ½” on left side of abdomen a little below the spleen area and blood clot was found present. (iii) Incised wound 4” x ½” x 1” on front surface of the neck and the lower part. Big vessels and trachea had been cut. Blood clots were present. (iv)Incised wound 2” x 1” on the right wrist joint. (v) Incised wound 1 ½” x 1” on the left wrist joint, blood clot was present. (vi)Incised wound on the right left arms. The doctor conducting the post mortem examination noted in the report that the injuries no. 1 and 2 were interconnected. 7. The doctor opined that all the injuries were caused by sharp edged weapon. According to the doctor, the death was due to shock and haemorrhage due to above injuries. Injury Nos. 1, 2 & 3 were sufficient, in ordinary course of nature, to cause death. The time elapsed between death and post mortem examination was noted to be 45-60 hours. A carbon copy of the post mortem report was proved and marked as Ext.6. Injury Nos. 1, 2 & 3 were sufficient, in ordinary course of nature, to cause death. The time elapsed between death and post mortem examination was noted to be 45-60 hours. A carbon copy of the post mortem report was proved and marked as Ext.6. P.W.6 Mukut Dhari Prasad Verma while deposing before the court stated that after recording the fardbeyan of the informant he transmitted the same to the police station for institution of the First Information Report and took up the investigation of the case. He prepared the inquest report, seizure list, sent the dead body for post mortem examination, inspected the place of occurrence and recorded the statement of the witnesses under Section 161 Cr. P.C. On conclusion of investigation, he submitted charge sheet in this case. 8. The court below after receiving the charge sheet took cognizance of the offence and committed the case to the court of sessions for trial, after supplying the police papers to the accused persons in terms of Section 207 of the Code of Criminal procedure. 9. It is relevant to note it here that in this case originally one Madan Mahto had been named as an accused in the first information report but he was found dead. The trial court has also recorded in the judgment that two of the accused persons namely Mohammad Mian and Ram Chandra Sah after their examination under Section 313 of the Code of Criminal Procedure absconded and thus their trial was separated. The trial court framed charge under Section 302 of the Indian Penal Code against four accused persons namely Raja Ram Mahto, Ram Yogeshwar Mahra, Jang Bahadur Mahra and Mohammad Mian. As noted above, Mohamad Mian has already absconded in course of trial. All the appellants were separately charged for having committed the offence under Section 302 read with Section 149 of the Indian Penal Code as well as Section 148 of the Indian Penal Code. The appellants did not plead guilty to the charges alleged against them and claimed to be tried. The defence has taken a definite stand that the instant case was counter blast of the case lodged by the defence side which on investigation was found to be true and charge sheet was submitted. The appellants did not plead guilty to the charges alleged against them and claimed to be tried. The defence has taken a definite stand that the instant case was counter blast of the case lodged by the defence side which on investigation was found to be true and charge sheet was submitted. Since the counter case was also triable by the court of sessions, the same was committed to the court of sessions being numbered as Sessions Trial No.17 of 1981. The specific case of the defence is that the members of the prosecution party by forming an unlawful assembly being variously armed had attacked on Harijan Toli of Darpa village at 3 p.m. on 5.9.1977, looted and damaged their houses, killed five persons out of whom three persons namely Manmatiya Devi, Ramlal Mahra and Madan Mahto (one of the accused) were burnt to death by pouring kerosene oil and diesel and several other persons including women and children had received injuries. The deceased Ramji Mahto of the present case had sustained injuries in that incident at the hands of some unknown attackers and the accused persons of the present case were framed by the prosecution in conspiracy with the police personnel posted at Darpa Math. In other words, the defence has taken a plea of false implication by the prosecution in order to save their own skin from the counter case as noted above. 10. In order to prove the charges seven witnesses were examined on behalf of the prosecution. Ram Lal Singh (P.W.1) claims to be an eye witness. His name is mentioned in the first information report as a person who came to the place of occurrence after alarm being raised by the informant. Ram Chandra Das (P.W.2) is a witness to the inquest. He has proved the carbon copy of the inquest report. He is also a witness to the seizure list and has proved the same in course of trial. He is a formal witness. Jai Nath Singh (P.W.3) and Shiv Singh (P.W.4) also claim to be eye witnesses to the occurrence. Their names have been given in the first information report. According to the informant, they reached near the place of occurrence on alarm being raised by him. Daroga Mahto (P.W.5) is the informant himself. He is also an eye witness. Jai Nath Singh (P.W.3) and Shiv Singh (P.W.4) also claim to be eye witnesses to the occurrence. Their names have been given in the first information report. According to the informant, they reached near the place of occurrence on alarm being raised by him. Daroga Mahto (P.W.5) is the informant himself. He is also an eye witness. Mukut Dhari Prasad Verma (P.W.6) is the investigating officer of the case who conducted the investigation and submitted charge sheet. Bikramaditya Pandey (P.W.7) is the doctor who conducted the postmortem examination on the dead body of the deceased. 11. Daroga Mahto (P.W.5) while deposing in the court has stated in his examination-in-chief that on the date of occurrence his son Ramji Mahto was going ahead of him and he was following him at about 2 p.m. There was a ‘Bhusaul’ (a huge collection of straw) in the north of the house of Jang Bahadur Mahra the appellant. Jugal Singh came out of Bhusaul, caught hold of Ramji Mahto and dragged him towards the road. In the mean time, 20-22 persons came out from the house of Jang Bahadur Mahra. The accused Madan Mahto is stated to be armed with ‘Dabila’ and others were armed with ‘Chhura’. The accused persons thrashed Ramji Mahto on the road and thereafter Madan Mahto is alleged to have assaulted on the neck of Ramji Mahto by ‘Dabila’. The accused Jugal Singh and Mohammad Mian are stated to have assaulted Ramji Mahto by ‘Chhura’ on his abdomen and spleen. The accused Yamuna Hazara and Suraj Hazara were catching hold of Ramji Mahto. Some other accused persons were also catching hold of him and others were also assaulting upon him. On hue and cry being raised by Daroga Mahto (P.W.5), the witnesses Ram Lal Singh (P.W.1), Shiv Singh (P.W.4), Jai Nath Singh (P.W.3), Kamal Singh (not examined) and others came. Immediately, thereafter armed police force which was posted at Darpa Math also reached there and thereafter the accused persons fled away. Ramji Mahto had already succumbed to the injuries sustained by him at the place of occurrence itself. His dead body was carried to Darpa Math. P.W.5 further stated that due to fear of life he did not visit the police station and his statement was recorded at about 10 p.m. when the police reached at Darpa Math on its own. 12. His dead body was carried to Darpa Math. P.W.5 further stated that due to fear of life he did not visit the police station and his statement was recorded at about 10 p.m. when the police reached at Darpa Math on its own. 12. When we look to the first information report and the deposition of P.W.5 in court, we find several discrepancies in his statement. P.W.5 has not alleged in the first information report that the accused Jugal Singh came out of ‘Bhusaul’, caught hold of Ramji Mahto and dragged him towards the road. This story has been introduced by him for the first time while deposing in court. In the first information report he has alleged that sixteen named persons and 7-8 unknown accused persons came out of the house of Jang Bahadur Mahra. They caught hold of the victim and thrashed him on the road. We further notice that in the first information report P.W.5 has made specific allegation that accused Madan Mahto and Raja Ram Mahto were armed with Dabila and they indiscriminately assaulted on the neck of Ramji Mahto by means of „Dabila?. However while deposing in court P.W.5 has omitted to take name of Raja Ram Mahto. He has confined the allegation of assault by ‘Dabila’ on the neck of the victim solely on the accused Madan Mahto. Again we find that in the fardbeyan P.W.5 has categorically stated that it was accused Jageshwar Mahra and Jang Bahadur Mahra who assaulted by ‘Chhura’ in the abdomen and spleen of the victim, Ramji Mahto but while deposing in court P.W.5 has changed the said part of allegation by naming Jugal Singh and Mohammad Mian to be author of ‘Chhura’ blow inflicted on spleen and stomach of Ramji Mahto, the victim. We further find that P.W.5 in his fardbeyan has stated that Jugal Singh and Mohammad Mian had caught hold of the victim by one of their respective hands and from another hand they were inflicting ‘Chhura’ blow on his wrists and arms but while deposing in the court P.W.5 has again changed the story by saying that it was Jamuna Hazara (Jamuna Dusadh) and Suraj Hazaraa (Suraj Dusadh) who had caught hold of the victim and other accused persons were assaulting upon him. P.W.5 had alleged in the first information report that when he tried to intervene to rescue his son Jamuna Dusadh and Suraj Dusadh chased him but this story is also forgotten while deposing in court. We have noticed these discrepancies from examination-in-chief of P.W.5 who is none else but father of the deceased-victim. In cross examination P.W.5 stated that he did not inform the police. The Chaukidar was asked to inform the police. The dead body of the deceased Ramji Mahto was brought near Darpa Math at about 5 p.m. After recording the statement at 10 p.m., the investigating officer had visited the place of occurrence. On that day, at the place of occurrence only Ramji Mahto was killed. When the police officer had sent the dead body for post mortem examination, P.W.5 together with his wife was present at Darpa Math. He thereafter admits that along with the dead body of Ramji Mahto two other dead bodies were sent for post mortem examination to Motihari Sadar Hospital. He admits that he knew Ramlal Mahto, Madan Mahto, the mother of Jang Bahadur, Ramdeo Mehra and Musaddi Mian. Apart from Ramlal Mahto and mother of Jang Bahadur, three others resided in the village prior to the date of occurrence but after the date of occurrence none of those five were seen by him in the village. He did not enquire about them from anyone. He denies that any one was burnt in the orchard on the date of occurrence. He further says that in the orchard of Prem Chand the dead body of his son alone was cremated. On further cross-examination he admitted that the dead bodies of Musaddi Mian and Ramdeo Mahra was sent for postmortem examination at Motihari with the dead body of his son and Musaddi Mian and Ramdeo Mahra were also killed on the same date. When the attention of the witness was drawn to his previous statement made before the police specially relating to specific assault attributed against accused persons he stood by deposition made by him in his examination-in-chief and denied to have made allegations as alleged in the first information report. When the attention of the witness was drawn to his previous statement made before the police specially relating to specific assault attributed against accused persons he stood by deposition made by him in his examination-in-chief and denied to have made allegations as alleged in the first information report. We may note it here that this witness has initially tried to conceal the truth regarding the death of five other persons which took place on the same day and almost at the same time but in his cross-examination reluctantly he admitted the knowledge of death of at least two persons which took place on that day, whose dead bodies were sent together with the dead body of his son. It is apparent that he is trying to hide more than to reveal the truth. In cross-examination this witness further admitted that immediately after the occurrence a Havildar and a Jamadar reached at the place of occurrence. The accused persons did not attack upon them. According to him, no blood stain was found on the cloth of the persons who carried the dead body of the deceased from the place of occurrence to the Math. He further stated that no blood stain was found at the place where the dead body was kept. He denied the defence suggestion that one Manmatia Devi was killed by Prem Chandra Singh on the date of occurrence and when Madan Mahto protested against this, the members of the prosecution attacked Harijan Tola, entered into their houses and killed Manmatia Devi, Madan Mahto and Ram Lal Mahra, Musaddi Mian and Ramdeo Mahra. This witness further denied that the members of the prosecution party burnt the dead bodies of Manmatia Devi, Ram Lal and Madan Mahto in the orchard of Prem Chandra. 13. Ram Lal Singh (P.W.1) is a chance witness. In his deposition, he says that on the date and time of occurrence he had gone to Darpa Math to buy banana. After purchasing banana when he was proceeding he heard shouting of P.W.5 Daroga Mahto. Thereafter he saw the accused Yugal Singh dragging Ramji Mahto towards the road. In the meantime, 15-20 persons came out of the house of Jang Bahadur Mahra. They were variously armed with ‘Dabila’ and ‘Chhura’. Madan Mahto and Raja Ram Mahto indiscriminately assaulted by ‘Dabila’ on the neck of Ramji Mahto. Thereafter he saw the accused Yugal Singh dragging Ramji Mahto towards the road. In the meantime, 15-20 persons came out of the house of Jang Bahadur Mahra. They were variously armed with ‘Dabila’ and ‘Chhura’. Madan Mahto and Raja Ram Mahto indiscriminately assaulted by ‘Dabila’ on the neck of Ramji Mahto. Jageshwar Mahra and Jang Bahadur Mahra assaulted Ramji Mahto on his stomach and spleen by means of ‘Chhura’. Jugal Singh and Mohammad Mian were catching hold of Ramji Mahto from one of their respective hands and from the other they were assaulting by means of Chhura upon his wrist. The other accused persons did not participate in assault but were present there. It would be apparent from the first information report that the informant (P.W.5) raised alarm only after the assault upon Ramji Mahto had taken place. In that circumstance, if we look to the statement of P.W.1, we find that he could not have witnessed the alleged occurrence. He claims to have seen the occurrence of assault after hearing the alarm raised by P.W.5. He was cross-examined by the defence. He admits that he knew Madan Mahto, Manmatia Devi and Ram Lal Mahra but he did not know as to whether they were residing in the village or not. He further denies the knowledge of any dead body being burnt in the orchard of Prem Lal Singh on the day of occurrence. However, he admitted that Ramdeo Mahra and Musaddi Mian were also killed on the same day and this fact came to his knowledge in the evening. He further admitted that a police party was deputed at the Math since before the incident of occurrence. His attention was also drawn towards his previous statement made before the police. In reply he has tried to justify his deposition by saying that he did not remember regarding most of the facts stated by him before the police in course of investigation. 14. As stated above Ram Chandra Das (P.W.2) is a formal witness. He is a witness to the inquest and seizure list and has proved the same which have been marked as Exts.1 and 2 respectively. 15. Jai Nath Singh (P.W.3) is another so-called eye witness. When we look to his deposition we find that he is also a chance witness. He claims to have seen the occurrence on alarm being raised by the informant (P.W.5). 15. Jai Nath Singh (P.W.3) is another so-called eye witness. When we look to his deposition we find that he is also a chance witness. He claims to have seen the occurrence on alarm being raised by the informant (P.W.5). Though the specific case of the prosecution right from the beginning is that the accused persons were armed with ‘Dabila’ and ‘Chhura’ but this witness stated that the accused persons were armed with ‘Bhala’, ‘Garasa’, ‘Dabila’ and ‘Chhura’. In cross-examination, he has stated that on the date of occurrence only one incident had taken place at the place of occurrence. He admits that he was a servant working in the Math at the time of occurrence. The Jamadar and Armed Police Force were present on duty at the Math. On alarm being raised the Jamadar rushed towards the place of occurrence and on seeing him the accused persons fled away. Reluctantly in cross-examination he admits that the dead bodies of Musaddi Mian and Ramdeo Mahra were also found in the orchard. He denied the knowledge as to whether some other dead bodies were also burnt in the orchard of Prem Chand Singh. In his further cross-examination, he admitted that in the occurrence, six persons were killed. The police personnel deputed on duty at the Math were all armed with rifle and gun. He states that though he came to know that six persons were killed, he did not know the name of five others who were killed in the occurrence. He admits that Ramdeo Mahra, Madan Mahto, Manmatia Devi, Ram Lal Mahra and Musaddi Mian are his co-villagers, but these days they were not living in the village. They were not seen in the village after the occurrence in question. This witness seems to be wholly un-reliable. Though he is a co-villager, he says that five persons named above were not seen in the village after the occurrence but immediately thereafter he admits that a case regarding murder of Madan Mahto and four others is being tried in the court in which his nephew Ram Naresh Singh and uncle of Ram Khelawan Singh are accused. Though he is a co-villager, he says that five persons named above were not seen in the village after the occurrence but immediately thereafter he admits that a case regarding murder of Madan Mahto and four others is being tried in the court in which his nephew Ram Naresh Singh and uncle of Ram Khelawan Singh are accused. Though he claims to have seen the occurrence from a distance of 40 feet, he has attributed specific assault against the accused persons but in cross examination he has stated that since the accused persons were surrounding the victim Ramji Mahto, he could not see as to who assaulted on which part of his body. He further stated that he could not notice the respective weapons in the hands of the accused persons. 16. As noted above, this witness is a highly interested witness. His family members are accused in the counter case. He claims to have seen the occurrence after alarm being raised by the informant. The informant has stated in the first information report that he raised alarm only after the assault had taken place upon the victim. He has stated that only one incident took place on the date of occurrence at the place of occurrence but in cross-examination he admitted that five others were also killed for which a counter case was instituted. Though he attributed specific role against the accused persons but in cross-examination he admits that he could neither see the assault nor the weapons in the hands of the accused persons. This witness has alleged that the accused persons to be armed with Garasa and Bhala also which is not alleged by the informant either in the first information report or in his deposition. 17. Shiv Singh (P.W.4) also claims to be an eye witness. When we look to his deposition we find that he has contradicted the story narrated in the first information report by saying that it was accused Jugal Singh alone who had caught and dragged Ramji Mahto and thereafter 15-20 persons came out from the house of Jang Bahadur Mahra and began to assault him. According to him, the accused persons were armed with Dabila, Chhura and Garasa. It is not the case of the informant that any of the accused person was armed with Farsa and Garasa. According to him, the accused persons were armed with Dabila, Chhura and Garasa. It is not the case of the informant that any of the accused person was armed with Farsa and Garasa. He claims to have seen the occurrence from near the well of the Math. He is also an interested witness. He has admitted in cross-examination that he himself and his father were accused in the counter case being Sessions Trial No. 17 of l981. He further admits that his cousin Manjhi Singh was also an accused in that case. Though he is an accused in the counter case, he denies the knowledge regarding the murder of Madan Mahto, Ram Lal Mahra, Manmatia Devi, Mussadi Mian and Ram Deo Mahra. Though the consistent case of the prosecution is that the accused Madan Mahto had inflicted injuries upon the neck of the victim by ‘Dabila’ but according to the defence, Madan Mahto together with Ram Lal Mahra, Manmatia Devi, Mussadi Mian and Ramdeo Mahra were killed on the date of occurrence itself. A counter case admittedly was there. This witness and his family members are accused in that case. In order to hide the truth, in cross-examination this witness has stated that when Ramji Mahto was being assaulted, he did not see Madan Mahto amongst the assailants though in the examination-in-chief he has named Madan Mahto as one of the assailant. Thus this witness apart from being an interested witness seems to wholly unreliable. 18. Now we look to the deposition of Mukut Dhari Prasad Verma (P.W.6). He has stated in his deposition that on 5.9.1977 at about 7 p.m. he learnt through rumour that some naxalite had killed an employee of Darpa Math. He entered the information in the station diary, informed the Superintendent of Police, Motihari; S.D.O., Sikrahana and Sub. Inspector of Police, Raxaul through wireless and proceeded to place of occurrence along with A.S.I., Safi Ahmad; Trainee S.I., Anil Kumar Jha; Atique Bari Khan and Constable of the police station as well as a troop of B.M.P. force. He reached Darpa Math at about 10 p.m. and found the dead body of Ramji Mahto kept in the Verandah. The informant Daroga Mahto was found sitting there. On the statement of Daroga Mahto, the fardbeyan was recorded by the trainee S.I., Anil Kumar Jha in presence of two witnesses. He reached Darpa Math at about 10 p.m. and found the dead body of Ramji Mahto kept in the Verandah. The informant Daroga Mahto was found sitting there. On the statement of Daroga Mahto, the fardbeyan was recorded by the trainee S.I., Anil Kumar Jha in presence of two witnesses. The fardbeyan was sent to the police station for institution of first information report. P.W.6 took up the investigation himself. A formal first information report was drawn in the writing of A.S.I., Safi Ahmad. Both the fardbeyan and the formal first information report were proved by him and marked as Ext. 3 and 4 respectively in course of trial. He inspected the place of occurrence. According to P.W.6, the road where the alleged murder of Ramji Mahto is said to have taken up was at a distance of 85 yards from Darpa Math. Blood stains were found there. The road on which the murder of Ramji Mahto is alleged to have taken place passed through Harijan Toli of village Darpa. In the Harijan Toli no one was found inside the house. P.W.6 further stated that a police picket of armed B.M.P. force was already deputed there at Darpa Math from before the occurrence. An incharge Executive Magistrate and a police officer were also deputed with the armed force. The incharge Magistrate was not found present but A.S.I. Gopal Prasad was found present on duty at Darpa Math. The inquest report was prepared by P.W.6. He found cloth of the deceased drenched with blood. A seizure list of blood stained earth was prepared from the place of occurrence in presence of the witnesses. The dead body of the deceased was sent in the next morning at about 10 a.m. together with Constables Shatrughan Singh, Raj Narain Singh and Chaukidar Ram Dayal Ram to Motihari Hospital for post mortem examination. P.W.6 was extensively cross-examined by the defence. In cross-examination he admits that though A.S.I. of Police Gopal Prasad was present when he reached Darpa Math his statement was recorded subsequent to the statement of the informant Daroga Mahto (P.W.5). The investigating officer had admitted that when he enquired from Gopal Prasad as to why he did not record the fardbeyan in the capacity of A.S.I. of Police he could not give any satisfactory explanation. The investigating officer had admitted that when he enquired from Gopal Prasad as to why he did not record the fardbeyan in the capacity of A.S.I. of Police he could not give any satisfactory explanation. The investigating officer further admits that on the fardbeyan of one Kapildeo Mahto given at 5 a.m. on 6.9.1977 a separate case was instituted with respect to murder of five persons. The place and time of occurrence of second incident reported by Kapildeo Mahto was almost the same. The dead body of Ramji Mahto was sent for postmortem examination to Sadar Hospital Motihari together with the dead bodies of Musaddi Mian and Ramdeo Ram. He has also admitted that he could come to know in the morning of 6.9.1977 that the accused Madan Mahto was also killed on 5.9.1977 and his dead body was disposed of. The investigating officer has admitted to have found blood stains in several houses of Harijan Toli of village Darpa in course of investigation. 19. Mukut Dhari Prasad Verma (P.W. 6) has also admitted that on 8.9.1977 he went to a place on the western side of village Darpa which was an orchard of one Prem Chandra Singh. This place is at a distance of about 400 yards from Darpa Math. On western side of orchard, he found leaves of Shesham and mango trees burnt upto a great height. The field was recently ploughed but some ashes and half burnt pieces of wood and charcoal were found. These were mixed with some bone pieces and smell of kerosene oil and diesel oil was emanating from them. On search being made in a paddy field huge quantity of charcoal wood etc. were found and some pieces of burnt cloth were also found there. The investigating officer also found a large number of pieces of burnt bones at that place. According to the investigating officer some of the pieces of cloth recovered by him in course of search were identified by some witnesses as belongings of the deceased Madan Mahto, Mostt. Manmatiya Devi and Ram Lal Mahra whose dead bodies could not be recovered. 20. Thus, what we find from deposition of investigating officer is that on the day the deceased Ramji Mahto was done to death five more persons namely, Musaddi Mian, Ramdeo Ram, Madan Mahto, Mostt. Manmatia Devi and Ram Lal Mahra were also killed. Manmatiya Devi and Ram Lal Mahra whose dead bodies could not be recovered. 20. Thus, what we find from deposition of investigating officer is that on the day the deceased Ramji Mahto was done to death five more persons namely, Musaddi Mian, Ramdeo Ram, Madan Mahto, Mostt. Manmatia Devi and Ram Lal Mahra were also killed. A separate case was registered in that regard which on investigation was found to be true and the Magistrate after taking cognizance of the offence committed the counter case also to the court of sessions for trial. One of the deceased of the counter case Madan Mahto is an accused in the present case. The first information report of the counter case was produced by the defence in court. The investigating officer (P.W.6) proved the same which was marked as Ext.? B?. 21. Ext. ‘B’ is the first information report of the counter case on the basis of fardbeyan recorded by Mukut Dhari Prasad Verma PW 6 in an orchard near Darpa Math on the statement of Kapildeo Mahto of village Sukhlahia at 5 a.m. on 6.9.1977. According to Kapildeo Mahto on the previous day while he was going to market from his village and as he was moving in village Darpa he saw a mob consisting of 40-50 persons armed with ‘Lathi’, ‘Garasa’, ‘Dabila’ and guns coming. At that moment, Kapildeo Mahto was near the house of Manmatia Devi. The mob was coming there from western side. Kapildeo Mahto identified some persons in the mob. They included Premchand Singh, Raj Kumar Singh, Binda Singh, Amar Singh, Om Prakash, Ranjeet Singh, Laxmi Singh, Ambika Singh, Mahanth Sah, Brahmadeo Singh and Mahendra Sahani. He has further stated that when the mob saw Most. Manmatia Devi, Premchand Sah started assaulting her with Garasa. In the meantime accused, Madan Mahto and others came and asked them not to do so but Manmatia Devi was killed. The mob thereafter chased those witnesses also and they ran helter and skelter. The informant Kapildeo Mahto also ran to save his life and he hid himself by climbing over a bamboo in a Banspatti nearby. From there he could see that assailants started searching for people by entering inside the houses. They killed the persons who could be available and looted the houses in which no one was found. The informant Kapildeo Mahto also ran to save his life and he hid himself by climbing over a bamboo in a Banspatti nearby. From there he could see that assailants started searching for people by entering inside the houses. They killed the persons who could be available and looted the houses in which no one was found. In this process, Madan Mahto was caught and killed by Amar Singh and Ram Lal Mahra was also caught and killed by miscreants Mahendra Sahani. Some other persons were also chased and assaulted. The mob went towards the river and later they returned back and carried three dead bodies. The informant Kapildeo Mahto thereafter came out from the hiding and went towards the river side where also he saw two dead bodies. He was told by some witnesses that these two persons were also killed by Mahendra Sahani and Mahanth Sah with Garasa. According to Kapildeo Mahto the resident of Harijan Toli of Darpa had fled away towards village Pipri near which two persons were also killed. The miscreants wanted to take away the bodies of those two dead persons also but the resident of Pipari village strongly protested and thus, they could not remove their bodies. The entire locality was terrorized. Altogether five persons were killed by the attackers and later when the informant Kapildeo Mahto came to know that police had arrived, he went there and narrated the incident to him and accordingly, fardbeyan (Ext ‘B’) was recorded by investigating officer, Mukut Dhari Prasad Verma (P.W.6). 22. As stated above, we find that the witnesses examined on behalf of the prosecution are not consistent. The informant has changed the manner of assault as narrated by him in the first information report while deposing in court. The specific case of the informant in the first information report is that he raised alarm after the accused persons had already assaulted the deceased Ramji Mahto. Ram Lal Singh (P.W.1) and Jai Nath Singh (P.W.3) in their deposition in court stated that they saw the occurrence after the alarm being raised by the informant Daroga Mahto. This could not be possible as the alarm was raised by the informant after the assault had already taken place. Further P.W.3 has stated that the miscreants apart from being armed with Dabila and Chhura were also armed with Bhala and Garasa. This could not be possible as the alarm was raised by the informant after the assault had already taken place. Further P.W.3 has stated that the miscreants apart from being armed with Dabila and Chhura were also armed with Bhala and Garasa. Similarly, Shiv Singh (P.W.4) has stated that the miscreants were also armed with Farsa and Garasa. The informant neither in his fardbeyan nor in his deposition has attributed arms like Bhala, Garasa or Farsa in the hands of any of the miscreants. If we look to the first information report we further find that the informant (P.W.5) has clearly stated in his fardbeyan that after alarm being raised witnesses Ram Lal Singh (P.W.1), Jai Nath Singh (P.W.3) and Shiv Singh (P.W.4) arrived at the place of occurrence. Thus, the claim of these witnesses to be a witness to the occurrence is not believeable. Similarly Shiv Singh, (P.W.4) in his cross-examination admitted that he himself, his father and his cousin were accused in the counter case relating to murder of five persons. The witnesses examined on behalf of the prosecution initially denied the knowledge of any other occurrence taking place on the date of occurrence of the present case but in cross-examination they all admitted the death of five more persons which took place on the same date and the same place for which a separate case was instituted. They have deliberately tried to hide the truth. However, from the evidence on record it cannot be disputed that six persons had lost their lives in the occurrence which took place in the after noon of 5.9.1977. Besides Ramji Mahto five other persons including one of the accused of the present case Madan Mahto were killed in the occurrence. It is surprising that the massacre of such a great magnitude took place but the Investigating Officer could not know regarding death of five others when he reached Darpa Math at 10 p.m. on 5.9.1977. It is unbelievable that five murders went unnoticed by the police party which was posted in the close vicinity of the place of occurrence. The incident of murder of Madan Mahto and four others could come to the knowledge of police at 5.a.m. on 6.9.1977 when Kapildeo Mahto dared to report. There is no explanation by the prosecution as to how huge quantity of blood were found in different houses at Darpa Math. The incident of murder of Madan Mahto and four others could come to the knowledge of police at 5.a.m. on 6.9.1977 when Kapildeo Mahto dared to report. There is no explanation by the prosecution as to how huge quantity of blood were found in different houses at Darpa Math. There is no explanation also by the prosecution as to how two persons namely, Mussadi Mian and Ramdeo Rai whose dead bodies were sent together with the dead body of the deceased Ramji Mahto were killed. There is also no explanation on behalf of the prosecution as to how three others namely, Madan Mahto, Mostt. Manmatiya Devi and Ram Lal Mahra were killed and who burnt their dead bodies to ashes. We thus find that the genesis and origin of occurrence have been suppressed and true version has not been presented before the court. We may note here that the law relating to non-explanation of injuries on the accused or some other persons related to the accused by the prosecution is well established by now. It is not the law that whenever an accused sustains injury in the same occurrence, prosecution is obliged to explain the injury and on failure of prosecution to do so, prosecution case has to be disbelieved. However, where evidence consists of interested and inimical witnesses and where defence alleges a version which competes in probability with that of the prosecution non-explanation of grievous injuries sustained by an accused creates a doubt about the prosecution case. 23. We may notice here the case of Mohar Rai and Bharat Rai Vs. State of Bihar since reported in AIR 1968 SC 1281 in which the apex court after discussing the facts of that case observed: “therefore, the version of the appellants that they sustained injuries at the time of occurrence is highly probabilised. Under these circumstances the prosecution had a duty to explain those injuries. The evidence of Dr. Bishun Prasad Sinha (P.W.18) clearly shows that those injuries could not have been self-inflicted and further, according to him, it was most unlikely that they would have been caused at the instance of the appellants themselves. Under these circumstances we are unable to agree with the High Court that the prosecution has no duty to offer any explanation as regards those injuries. Under these circumstances we are unable to agree with the High Court that the prosecution has no duty to offer any explanation as regards those injuries. In our judgment, the failure of the prosecution to offer any explanation in that regard shows that the evidence of prosecution witnesses relating to the incident is not true or at any rate not wholly true. Further those injuries probabilise the plea taken by the appellants.” 24. In another important case Lakshmi Singh Vs.The State of Bihar since reported in (1976) 4 SCC 394 after referring to the ratio laid down in Mohar Rai case (supra) the Hon’ble apex court observed in paragraph 12 “…………… Where the prosecution fails to explain the injuries on the accused, two results follow:– (1) that the evidence of the prosecution witnesses is untrue; and (2) that the injuries probabilise the plea taken by the appellants.” It was further observed that “………..…. In a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences: (1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; (2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable. (3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.” “The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the evidence gives a version which competes in probability with that of the prosecution one.” 25. We find that in the instant case the prosecution has miserably failed to explain the death of one of the accused Madan Mahto and four others caused in the same transaction. To the contrary, the witnesses have tried their level best to suppress the factum of murder of five other persons on the fateful day. We find that in the instant case the prosecution has miserably failed to explain the death of one of the accused Madan Mahto and four others caused in the same transaction. To the contrary, the witnesses have tried their level best to suppress the factum of murder of five other persons on the fateful day. They have gone to the extent of saying that on that day only one incident took place in which only Ramji Mahto was killed. However, they could not stand to this position when they were further cross-examined. They admitted the existence of a counter case in which five persons got killed. The failure of the prosecution to offer any explanation with respect to their death is of great importance. The witnesses are interested and inimical. The defence has given a version which competes in probability with that of the prosecution. The deceased Ramji Mahto might have been killed by the attackers or by some one else in different manner. The witnesses are neither consistent nor credit worthy. The court cannot distinguish the truth from falsehood in the present case. We have carefully considered the evidence of P.Ws.1, 3, 4 and 5. They are inconsistent. They have contradicted their own previous statements made before the police. They have changed the manner of occurrence. The informant in his deposition changed the manner of assault narrated in the first information report. The dead body of Ramji Mahto was shifted from the place of occurrence in presence of police force and A.S.I. of Police even before the fardbeyan could have been recorded. We, thus, find that the prosecution has neither been able to prove the place of occurrence nor been able to prove the genesis and origin of occurrence nor the manner of occurrence in the present case. 26. While appreciating the evidence we find that though the alleged occurrence took place on 5.9.1977 at 2.30 P.M., there is no explanation as to why no information was given to the police in time specially when an A.S.I. of Police, Havildar and armed police party had reached at the place of occurrence immediately. There is no reasonable explanation as to why the A.S.I. of Police Gopal Prasad did not record the fardbeyan of the informant immediately. There is no reasonable explanation as to why the A.S.I. of Police Gopal Prasad did not record the fardbeyan of the informant immediately. Though the investigating officer states that he received the information regarding the occurrence first through rumour and entered the same in the station diary but the said station diary entry has not been produced in the court in course of trial. We further find it surprisingly that when the investigating officer had recorded the fardbeyan at 10 p.m. on 5.9.1977 and sent the same through an A.S.I., Safi Ahmad as to why the formal first information report could not be registered in the night in the police station. The formal first information report is said to have been registered on 6.9.1977 at 7 a.m. There is no reasonable explanation for the delay in registering the first information report in the police station. Again we may notice that though the first information report was registered on 6.9.1977 at 7 a.m., the same was received in the court on 8.9.1977. There is no explanation as to why the same first information report could not reach the court on 6.9.1977 or on 7.9.1977. 27. Extra ordinary delay in sending the first information report is a circumstance which provides a legitimate basis for suspecting that the first information report was recorded much later than the stated date and hour affording sufficient time to the prosecution to introduce improvement and embellishment. It is requirement of law that the first information report should reach the concerned Magistrate forthwith. The delay in registration of first information report, its transmission to the court and its receipt in the court make the investigation tainted. An inference can be drawn that same had been drawn after due deliberations, consultations and discussions. We further find that the witnesses examined on behalf of the prosecution are all either related or highly interested witnesses. Most of them are chance witnesses. There is evidence on record that several independent persons had also reached the place of occurrence immediately but they have deliberately not been examined. 28. It is contended on behalf of the appellants that admittedly an ASI of police Gopal Prasad, a Havildar and armed police force were posted at Darpa Math. On alarm being raised they immediately reached the place where the murder took place. They were most natural witnesses of the occurrence. 28. It is contended on behalf of the appellants that admittedly an ASI of police Gopal Prasad, a Havildar and armed police force were posted at Darpa Math. On alarm being raised they immediately reached the place where the murder took place. They were most natural witnesses of the occurrence. The police party has not only failed to discharge its duty in not recording the fardbeyan of the informant immediately but the prosecution witnesses have deliberately been withheld from being examined in the court. Their non-examination has caused serious prejudice to the defence case. We find force in the argument. We would draw adverse inference for non-examination of these material witnesses under Section 114(g) of the Evidence Act. 29. For the reasons assigned above, we find ourselves unable to sustain the conviction of the appellants. Accordingly, both the appeals stand allowed. 30. The impugned judgment and order of conviction and sentence are hereby set aside. Notice for enhancement stands discharged. 31. The appellants who are already on bail are discharged from the liabilities of their bail bonds. NAVANITI PRASAD SINGH, J.:–I agree.