SHYAM KISHORE SHARMA, J.:–Cr. Appeal No. 2 of 1990 (D. B.) filed by Jamuna Pandit and Cr. Appeal No. 7 of 1990 filed by Umesh Pandit @ Umaid, Arbind Pandit and Dinesh Pandit have been heard together because both the appeals have arisen out of a common judgment of conviction and sentence dated 20.12.1989 passed by learned 4th Additional Sessions Judge, Gaya in Sessions Trial No. 18 of 1988/ 158 of 1987 whereby all the appellants were held guilty under Section 302/34 I.P.C. Umaid @ Umesh Pandit was further held guilty under Section 302/109 I.P.C. Arvind Pandit and Umesh Pandit were further held guilty under Section 323 I.P.C. All the appellants were sentence to undergo rigorous imprisonment for life under Section 302/34 I.P.C. No separate sentence was passed against the appellant Umaid @ Umesh Pandit under Section 302/109 I.P.C. Umesh Pandit and Arvind Pandit were further sentenced to undergo rigorous imprisonment for one year each under Section 323 IPC. 2. The prosecution case, as per written report of informant Ranjan Mistri (P.W. 6)- covillager of the appellants given on 31.3.1986 at 7.30 a.m. addressed to the Officer-in-Charge, Makhdumpur Police Station was that on the same date at about preceeding 6 a.m. the informant (P.W. 6) along with his father Lakhan Mistri (P. W. 5) was harvesting barley crop. At that very time accused Umesh Pandit @ Umaid, Dinesh Pandit, Arvind Pandit and Jamuna Pandit came there. Jamuna Pandit and Umesh Pandit were having lathi and Dinesh Pandit and Arvind Pandit were having garasa. After arriving at the field Umesh Pandit ordered to assault upon which Dinesh Pandit and Arvind Pandit assaulted from garasa as a result of which the informant’s head was broken. Lakhan Mistry and Raju Mistri were assaulted by lathi. On informant’s cry Ramanand Sharma (not examined), Ramswaroop Mistri (not examined), Lalan Mistry (P.W. 1) and Ramashish Mahto (not examined) came, intervened and pecified the matter. Written report signed by Ranjan Mistry, son of Lakhan Mistry (P.W. 5) has been marked as Ext. 1. Formal FIR (Ext. 3) of Makhdumpur P. S. Case No. 45 of 1986 under Section 324/323/34 IPC was registered and investigation commenced. Injured Raju Mistry was taken to Patna Medical Hospital for treatment but he died and so by order of the Court Section 302 IPC was added. After commencement of investigation, Inquest Report (Ext. 4), Post-mortem Report (Ext. 5), Injury Reports (Ext. 3) of Makhdumpur P. S. Case No. 45 of 1986 under Section 324/323/34 IPC was registered and investigation commenced. Injured Raju Mistry was taken to Patna Medical Hospital for treatment but he died and so by order of the Court Section 302 IPC was added. After commencement of investigation, Inquest Report (Ext. 4), Post-mortem Report (Ext. 5), Injury Reports (Ext. 2 to 2/2) were obtained. Statement of witnesses was recorded and finding the allegation to be true charge-sheet was submitted. Cognizance was taken and the case was committed to the court of sessions where charge under Section 302/34 IPC was explained to Umesh Pandit, Arbind Pandit, Dinesh Pandit and Jamuna Pandit, charge under Section 323 IPC was further explained to Umesh Pandit and Jamuna Pandit for causing hunt to Lakhan Mistry, charge under Section 323 IPC was further explained to Dinesh Pandit and Arbind Pandit for causing hunt to Ranjan Mistry, and charge under Section 302/109 IPC was further explained to Umesh Pandit. The accused persons pleaded innocence and so the trial proceeded. 3. The defence of the appellants was of false implication on account of enmity. The further defence was that the prosecution has not given true version and the death was not in the manner as alleged. 4. After analyzing the evidence, hearing the submissions of the parties and going through the materials on record, the trial court found the appellants guilty and so the judgment of conviction and sentence was passed. 5. This Court is required to see as to the whether the prosecution has been able to prove its charge against the appellants beyond shadow of all reasonable doubts or not. 6. In order to prove its case the prosecution has examined altogether 12 witnesses who are P. W. 1 Lallan Mistri, P. W. 2 Lakhan Paswan, P.W. 3 Simti Devi, P. W. 4 Sheo Sharan Yadav, P. W. 5 Lakhan Mistri, P. W. 6 Ranjan Mistri, P. W. 7 Dr. Ram Saran Pd. Singh, P. W. 8 Md. Ashique, P. W. 9 Dr. Ram Krishna Singh, P. W. 10 Narain Prasad, P. W. 11 Birendra Singh and P.W. 12 Achyutanand. The defence has not adduced any oral or documentary evidence. 7. P. Ws. 3 and 4 have been tendered by the prosecution. P. W. 2 has been disbelieved to be a witness of the occurrence by the trial court. Ram Krishna Singh, P. W. 10 Narain Prasad, P. W. 11 Birendra Singh and P.W. 12 Achyutanand. The defence has not adduced any oral or documentary evidence. 7. P. Ws. 3 and 4 have been tendered by the prosecution. P. W. 2 has been disbelieved to be a witness of the occurrence by the trial court. P. W. 10 has proved rent receipt (Ext. 8), P. W. 11 has proved the certified parcha (Ext. 9) and P. W. 12 has proved the signature of a sale deed (Ext. 10). P. Ws. 10, 11 and 12 are formal witnesses. FIR named witnesses, namely, Ramanand Sharma, Ramswaroop Mistri and Ramashish Mahto have not been examined. 8. Before discussing the oral evidence the post-mortem of the deceased is being discussed. On 1.4.1986 P. W. 9 who was posted as Associate Professor, Forensic Medicine Department, PMCH, Patna has held the post-mortem upon the dead body of deceased Raju Mistri aged about 18 years at 11 a.m. and has found following ante-mortem injuries:- (i) Contusion 4” x 2” on middle of skull placed horizontally. (ii) Massive haematoma underneath the skull was found all over more marked on the frontal, and (iii) third fronto-parietal suture was found separated. (iv) Linear fracture of size 6” was found involving the left temporal and left parietal bones of the skull. The death was within 24 hours. Only one injury which was noted as injury no. 1 was fatal and this injury was caused by hard and blunt substance and not by garasa. Therefore, the evidence of the doctor who has conducted the post-mortem conclusively proves that the death was on account of impact of one hard and blunt blow upon the head of the deceased. 9. Now other related evidences are being discussed. Informant has been examined as P. W. 6. He has stated that at 6 a.m. on 31.3.1986 he was cutting barely crop with his brother Raju Mistri (deceased). At that very time the accused persons Umesh Pandit @ Umaid, Dinesh Pandit, Arvind Pandit and Jamuna Pandit came. Arvind was having garasa, Dinesh was having iron cap lathi, Umesh and Jamuna were having lathi came and claimed the field to be their own. An altercation was made and Umesh ordered to assault, thereafter, Dinesh gave a blow by lathi with an iron cap which caused injury to Raju Mistri. Arvind was having garasa, Dinesh was having iron cap lathi, Umesh and Jamuna were having lathi came and claimed the field to be their own. An altercation was made and Umesh ordered to assault, thereafter, Dinesh gave a blow by lathi with an iron cap which caused injury to Raju Mistri. Arvind assaulted P. W. 6 from blunt portion of garasa. Lakhan Mistri was assaulted by Jamuna Pandit and Umesh Pandit. On cry Lakhan Paswan, Sheo Sharan Yadav and Lakhan Mistri etc. came and the accused persons fled away. The injured was taken to Makhdumpur Hospital for treatment and Raju was referred to PMCH, Patna but he died on the same day. The informant had given a written report which was read to him and thereafter it was signed by the informant. 10. Learned counsel appearing on behalf of the appellants has submitted that initial version made in the written report was completely contradicted by the informant while deposing in the Court. According to written report, Dinesh Pandit and Arvind Pandit were having garasa and on account of impact of garasa head was broken. Other persons were having lathi. There is no averment in the initial written report that any person was having a lathi with iron cap. 11. The deceased had no injury by sharp cutting weapon. Other injured persons had also no injury by sharp cutting weapon and he had only one injury by hard and blunt substance. On the same date i.e. 31.3.1986 Raju Mistri was medically examined by P. W. 7 at 8.15 a.m. and the doctor had found as many as three swellings, the first on right parieto-temporal region, the second on left scapular region and the third on left leg. The patient was brought in semi-conscious condition due to injury no. 1 which was dangerous to life and the other injuries on his person were simple in nature. On the same date Lakhan Mistri was examined by P. W. 7 and he was having swelling 2” x 1 ½” on left wrist joint besides, bruise of reddish colour 3” x 1 1/2' on right arm. His injury was caused by hard and blunt substance. 12. On the same date Lakhan Mistri was examined by P. W. 7 and he was having swelling 2” x 1 ½” on left wrist joint besides, bruise of reddish colour 3” x 1 1/2' on right arm. His injury was caused by hard and blunt substance. 12. P. W. 6 was examined on that very date at 8.45 a.m. and the doctor has found lacerated wound with fluids 1 3/4" x 1/2' x muscle deep on parietal region and bruise of reddish colour 3” x 1/2" on lumbo sacral region. His injuries were caused by hard and blunt substance within two hours. The informant in his written report is specific that he was assaulted by garasa which is a sharp cutting weapon. There is no mention in the initial written report that injury was caused by blunt portion of garasa or by lathi but the doctor has found his injuries to be caused only by hard and blunt substance, so it appears that the informant has developed his evidence and has deposed that his injury was caused due to attack by hard and blunt substance. 13. On the factum of assault P. W. 1 who is the uncle of the deceased and the informant has also been examined. According to him, the barley crop was being harvested by Lakhan Mistri and his son Raju. At that very time all the appellants came. Dinesh and Arvind were having garasa and Umesh Pandit and Jamuna Pandit were having lahti. The accused persons wanted to stop Lakhan from harvesting. An altercation followed, upon which Dinesh and Arvind assaulted Raju and Ranjan by blunt portion of garasa. Lakhan Mistri was assaulted by Umaid @ Umesh Pandit and Jamuna Pandit by one lathi with iron cap which was not in the initial written report. At the stage of deposition this development was made. P. W. 1 in paragraph 14 has stated that Umesh and Jamuna Pandit had assaulted Lakhan Mistri by lathi with iron cap. Attention of the Investigating Officer (P.W. 8) was drawn towards the evidence of P. W. 1. He declined that such statement was given by Lakhan Mistri rather his statement was general and omnibus type that all had assaulted by lathi and garasa and he had not specified as to who used which weapon in assault. Attention of the Investigating Officer (P.W. 8) was drawn towards the evidence of P. W. 1. He declined that such statement was given by Lakhan Mistri rather his statement was general and omnibus type that all had assaulted by lathi and garasa and he had not specified as to who used which weapon in assault. Another important aspect of the evidence of this witness which has given in paragraph 12 is that after hearing hulla he had come and saw Ranjan, Raju and Lakhan injured. If the evidence of P. W. 1 in paragraph 12 is considered, then it is apparent that he was not a witness of the occurrence rather he came at the place of occurrence after hearing commotion. P. W. 6 on the manner of assault has made a sharp difference from his earlier version which he has made in the written report. While deposing in the Court he has stated that Raju Mistri was assaulted by Dinesh by lathi having iron cap and he (informant -P.W.6) was assaulted by Arvind Pandit by blunt portion of garasa. That version is not in the written report of the informant. P. W. 5 in para 2 has deposed about the manner of assault when he has stated that Arvind came with garasa and Umesh, Dinesh and Jamuna came with lathi but the informant’s initial version is that two persons came with lathi and two persons came with garasa. P. W. 5 has stated that three persons came with lathi and one came with garasa. Therefore, this is a major contradiction. 14. One fact which has come in the evidence is that appellant Umesh Pandit was also examined by P. W. 7 on 31.3.86 and he was having grievous injury by hard and blunt substance on right third metacarpal bone (hand) which was subsequently confirmed after radiology examination. If the evidence is scrutinized properly, it would go to show that on the date and time of occurrence there was fight by two sides and in course of occurrence Umesh Pandit also received injury and his injury was more serious in nature as that of the informant and others. If the evidence is scrutinized properly, it would go to show that on the date and time of occurrence there was fight by two sides and in course of occurrence Umesh Pandit also received injury and his injury was more serious in nature as that of the informant and others. The present case in which the accused persons were convicted, was registered under Sections 324/323/34 IPC, whereas, another case in which Umesh Pandit was assaulted, was registered under Section 323/325 I.P.C and this fact was not brought on record by the prosecution rather it has come in the evidence when P. W. 7 was being cross-examined by the defence. If the case relates to fight between two sides, then the prosecution is required to come with that version and onus is upon it to explain as to what was the manner in which other sides also received injury. If the injury is superficial and could also be manufactured that is not required to be explained but if the injury is grievous in nature then mandate of law is that the prosecution must unfold its flank and if the prosecution had suppressed this fact, it can be said that the prosecution had tried to conceal the real version of the occurrence. In the present case FIR was lodged under bailable section. There is vital contradiction with regard to weapon which the accused persons were carrying at the time of occurrence. There is no explanation as to why three most important witnesses of the occurrence whose names mentioned in the FIR, namely, Ramanand Sharma, Ramswaroop Mistri and Ramshish Mahto were not examined. 15. The genesis of the case was cutting barley crop. Therefore, the onus was upon the prosecution to come with clean evidence that informant and his other persons were in the bona fide possession of the land but the ownership of the land had also not been proved. The evidence is that in course of assault many persons were injured. Investigating Officer had gone to the place of occurrence soon after the occurrence and had not found any blood at the place of occurrence. With regard to manner of assault different version has been given by different witnesses. The evidence is that in course of assault many persons were injured. Investigating Officer had gone to the place of occurrence soon after the occurrence and had not found any blood at the place of occurrence. With regard to manner of assault different version has been given by different witnesses. These are the vital lacunas which go to the root of the matter and on such sketchy evidence it could be held that the prosecution has not been able to prove its charge against the accused persons beyond shadow of all reasonable doubts. Once the doubt is created then the benefit of doubt goes to the accused persons. 16. In the result, the judgment of conviction and order of sentence is set aside and both the appeals are allowed. The appellants are acquitted of the charge and they are ordered to be discharged from the liabilities of their bail bonds.