Judgment V.N. Sinha, J. Both these appeals are filed against the judgment/ order dated 21.04.1990 passed by 4th Additional Sessions Judge, Muzaffarpur in Sessions Trial No. 149 of 1987 whereunder the appellants in both the appeals have been convicted for the offence under Sections 302/149, 307/149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life and rigorous imprisonment for 10 years under the two counts respectively. 2. Prosecution case as set out in the fardbeyan (Ext. 2) of the informant Ram Sanjiwan Sharma (P.W. 5) as recorded by Sri R.P. Tiwari (P.W. 13) Officer in charge of Hathauri P.S. on Wednesday 11.02.1987 at 10.30 A.M. in State Dispensary, Narma is that yesterday i.e. 10.02.1987 his full brothers Ramakant Singh (deceased) and Ramanand Singh (P.W. 2) both sons of Sonelal Singh, resident of village Dhanushi, P.S. Hathauri, district Muzaffarpur were watching wheat, maize crop and pump set attached to the boring. At around 9 P.M. nephew of the informant Sanjay Kumar (P.W. 3) went to the pump set with meal to serve dinner to his father Ramanand Singh. After serving meal he was coming back. At the same time, saw fardbeyan named accused persons variously armed with lathi, spear, farsa (1) Bibhuti Kumar @ Upendra Kumar was armed with farsa (2) Surendra Sharma (3) Raj Kumar Sharma were armed with spear (4) Akhileshwar Kumar Sharma armed with spear (5) Ram Sanjiwan Sharma armed with Farsa (6) Vinay Kumar armed with spear (7) Ram Ekwal Singh armed with lathi (8) Ram Pratap Mahto armed with lathia garasa (9) Rajendra Mahto armed with spear (10) Harish Chandra Mahato armed with lathi (11) Saryug Mahto armed with lathi (12) Baijnath Mahto armed with spear (13) Chalitar Mahto armed with lathi (14) Suith Mahto armed with lathi, all residents of village Dhanushi, P.S. Hathauri, district Muzaffarpur came to the pump set and began to assault his two brothers causing injury. Alarm being raised villagers Vidyanandan Singh (P.W. 4), Hridya Narayan Singh (not examined), Mahesh Thakur (not examined) and others came running along with informant, the accused persons thereafter made good their escape. Informant did not see the miscreants causing assault but identified them while they were making good their escape. Informant and others thereafter carried his both brothers Ramakant Singh and Ramanand Singh to Narma State Dispensary on cot where both are being treated. Informant did not see the miscreants causing assault but identified them while they were making good their escape. Informant and others thereafter carried his both brothers Ramakant Singh and Ramanand Singh to Narma State Dispensary on cot where both are being treated. Today Ramakant Singh died in the hospital where he was being treated. Occurrence has been witnessed by his nephew Sanjay Kumar (P.W. 3) and others who will make their statement. The cause of occurrence as per fardbeyan is that on 9.2.1987 wife of accused Harish Chandra Mahto had up-rooted Khesari crop from the field of Kameshwar Sharma (P.W. 1) and there was altercation in that regard, whereafter accused persons informed B.D.O. Bochhan about the occurrence. The accused persons are of extremist nature and always in the habit of committing loot and assault. Informant further stated in the fardbeyan that when he came to boring he was holding 3-cell Eveready torch. Having read the fardbeyan not only the informant put his signature over the fardbeyan but P.W. 1 Kameshwar Sharma also put his signature over the same. 3. Investigating Officer (P.W. 13) after recording the fardbeyan took up investigation, forwarded the fardbeyan to Hathauri P.S. for institution of the present case, on the basis of which Hathauri P.S. Case No. 15/87 for the offence under Section 302 and other allied Sections of the Indian Penal Code was registered. After investigation P.W. 13 submitted charge-sheet against 11 out of 14 fardbeyan named accused showing three accused Surendra Sharma, Vinay Kumar Singh and Ram Ekbal Singh as not sent up for trail. 4. In the light of charge-sheet cognizance of the offences was taken and after supplying the police paper the case was committed to the court of sessions. One accused Chalitar Mahto absconded during trial. The other accused nos. 12 to 25 put on trial have been summoned under Section 319 Cr.P.C. 5. During trial prosecution examined 13 witnesses, namely, P.W. 1 Kameshwar Sharma attesting witness of the fardbeyan, P.W. 2 Ramanand Singh injured, P.W. 3 Sanjay Kumar son of P.W. 2, P.W. 4 Vidyanandan Singh villager who came to the place of occurrence after alarm was raised, P.W. 5 Ram Sanjiwan Sharma informant of the case, P.W. 6 Nityanand Thakur who also came to the place of occurrence along with informant, P.W. 7 Dr. Manoranjan Kumar Srivastava who conducted autopsy on the person of the deceased Ramakant Singh and submitted post mortem report (Ext. 5) and supplementary report (Ext. 5/1), P.W. 8 Pramod Singh another villager but not an eye witness, P.W. 9 Dr. Hari Kishore Prasad Thakur who examined the injuries on the person of P.W. 2 and the deceased in the night of the occurrence i.e. 10.02.1987 and submitted injury report of the injured and the deceased (Exts. 6, 6/1) also gave further opinion on the injuries indicated in the post mortem report vide Ext. 6/2, P.W. 10 Jagannath Pandey who served as A.S.I. Hathauri P.S. on the date of occurrence and reached Narma State Dispensary in the night of occurrence after receipt of O.D. slip issued by Dr. Hari Kishore Prasad Thakur in the police station at 11 P.M., P.W. 11 Pankaj Kumar son of P.W. 1 was reached the place of occurrence after hearing the alarm, P.W. 12 Dineshwar Prasad Singh who is a witness of the inquest, P.W. 13 Ram Pravesh Tiwari Officer in charge Hathauri P.S. the Investigating Officer of the case. 6. Now we proceed to consider the evidence of informant P.W. 5 and the other eye witnesses including injured P.W. 2. 7. P.W. 5 Ram Sanjiwan Sharma is the informant of the case. He has stated in his evidence that the occurrence took place in the night of 10.02.1987 at 9.30 P.M. while he was at his house. Deceased Ramakant Singh and injured Ramanand Singh (P.W. 2) are his full brothers. On the night of occurrence his both the brothers had gone to watch maize, wheat crop and the pump set and were sleeping in the field. During the night of occurrence P.W. 3 Sanjay Kumar nephew of the informant and son of P.W. 2 had gone to serve meal to his father at the place where boring is sunk. P.W. 5 was at his house, heard alarm coming from the place where his boring is sunk. He also ran in the same direction and met in the way Sanjay Kumar (P.W. 3) who was coming raising alarm. Along with the informant Mahesh Thakur (not examined), Vidyanandan Singh (P.W. 4), Kameshwar Sharma (P.W. 1), Nityanand Thakur (P.W. 6) and others also ran towards the boring and saw 30-35 men armed with lathi, spear and farsa making good their escape from near fig tree. Along with the informant Mahesh Thakur (not examined), Vidyanandan Singh (P.W. 4), Kameshwar Sharma (P.W. 1), Nityanand Thakur (P.W. 6) and others also ran towards the boring and saw 30-35 men armed with lathi, spear and farsa making good their escape from near fig tree. Informant identified 14-15 men amongst the miscreants. In paragraph 4 informant named the miscreants identified as Bibhuti Kumar @ Upendra Sharma, Ram Sanjiwan Sharma, Ram Pratap Mahto, all the three armed with farsa, Surendra Sharma (not sent up for trial), Raj Kumar Sharma, Akhileshwar Sharma, Ram Vinay Kumar Sharma (not sent up for trial) and Rajendra Mahto all armed with spear. In the same paragraph informant further claimed to have identified Ram Ekbal Singh (not sent up for trial), Sarjug Mahto, Baijnath Mahto, Chalitar Mahto absconder, Suith Mahto, all armed with lathi. According to informant the accused persons escaped towards north-east. Informant further claimed in the same paragraph that he identified miscreants from a distance of 3-4 laggi with the help of his 3-cell Eveready torch and the moon light. In paragraph 5 informant claimed that when he along with others reached near the fig tree saw his both brothers fallen on the ground in injured condition. Ramakant Singh suffered injury by farsa on his head, knee of his both legs, spear injury on his belly and lathi injury all over the body. In paragraph 6 informant claimed that Ramanand Singh (P.W. 2) was found lying on the ground at a distance of 1 laggi from the place where Ramakant Singh (deceased) was lying by the side of the footpath in Khesari field. There was injury on both the lips of Ramanand Singh and blood was oozing therefrom. There was spear injury on his legs and cut injury on his fingers. Besides there was lathi injury all over his body. The two injured were carried to the hospital on cot. His brother Ramakant Singh died in Narma Hospital in the night of occurrence i.e. 10.02.1987. On 11.02.1987 between 10-10.30 A.M. police came to the hospital and recorded his fardbeyan. Having heard the contents of the fardbeyan informant put his signature over the same and proved fardbeyan as Ext. 2. In paragraph 9 of his evidence informant stated that on 9.2.1987 there was altercation with the wife and daughter in law of accused no. On 11.02.1987 between 10-10.30 A.M. police came to the hospital and recorded his fardbeyan. Having heard the contents of the fardbeyan informant put his signature over the same and proved fardbeyan as Ext. 2. In paragraph 9 of his evidence informant stated that on 9.2.1987 there was altercation with the wife and daughter in law of accused no. 5 Rajendra Mahto with Kameshwar Sharma (P.W. 1) with regard to uprooting of Khesari crop. In the same evening Pankaj Kumar (P.W. 11), was going on a bicycle, which was forcibly snatched by Harish Chandra Mahto and to recover the said bicycle he along with his brother Ramakant Singh, Ramanand Singh, Mahesh Thakur, Krishna Kumar Singh and others had gone and bicycle recovered after exchange of hot words. 8. P.W. 2 Ramanand Singh is the injured. He has stated in his evidence that the occurrence took place in the night of 10.02.1987 at about 9 P.M. while he was lying in the hutment raised near his pump set. At the time of occurrence his son Sanjay Kumar (P.W. 3) had come to serve him dinner. After serving the dinner his son was returning towards his house. Having covered some distance his son (P.W. 3) raised alarm. Hearing the alarm P.W. 2 went near the fig tree in north at a distance of 15-20 yards where his elder brother Ramakant Singh (deceased) was sleeping on paddy straw and saw 30-35 miscreants armed with lathi, spear and garasa (farsa) assaulting his brother Ramakant Singh. P.W. 2 intervened to save his brother, miscreants also assaulted him. P.W. 2 also wielded lathi to save himself and in that course caused injury to accused Radhe Paswan (not named in the fardbeyan), Rajendra Mahto, Chandeshwar Singh also not named in the fardbeyan. P.W. 2 further claimed that he was assaulted, seriously injured and fell down on the ground. P.W. 2 also claimed that he saw cut injury on the head, legs of his brother. In paragraph 4 P.W. 2 further claimed that the accused persons assaulted him on his lips, his both the hands, left leg with spear and lathi. On alarm being raised villagers, his younger brother informant P.W. 5 Ram Sanjiwan Sharma, P.W. 6 Nityanand Thakur, P.W. 1 Kameshwar Sharma, P.W. 11 Pankaj Kumar came and carried him, his brother Ramakant Singh (deceased) on cot to Narma Hospital where his brother Ramakant Singh died during treatment. On alarm being raised villagers, his younger brother informant P.W. 5 Ram Sanjiwan Sharma, P.W. 6 Nityanand Thakur, P.W. 1 Kameshwar Sharma, P.W. 11 Pankaj Kumar came and carried him, his brother Ramakant Singh (deceased) on cot to Narma Hospital where his brother Ramakant Singh died during treatment. On account of assault, injury P.W. 2 claimed that he was not in a position to speak as there was cut injury on both his upper, lower lip. In paragraph 6 P.W. 2 further claimed that he identified the accused persons by 3-cell Eveready torch and moon light. In paragraph 7 P.W. 2 named the miscreants whom he identified as Bibhuti Kumar @ Upendra Sharma, Ram Sanjiwan Sharma, Ram Pratap Mahto, Ram Jinis Singh, Ganesh Shahi, Ram Bilash Rai armed with farsa but the three not named in the fardbeyan. In the same paragraph P.W. 2 further claimed to have identified Surendra Sharma (not sent up for trial), Raj Kumar Sharma, Ram Vinay Sharma (not sent up for trial), Akhileshwar Sharma, Raj Kumar Paswan, Harish Chandra Mahto, all the six armed with spear, Rajendra Mahto, Junaid Alam, Sarjug Mahto, Jagdish Mahto, Baijnath Mahto, Braj Kishore Shahi @ Budha Shahi, Deep Narayan Rai, Ram Ekbal Singh, Chalitar Mahto, Suith Mahto, Bisheshar Mahto, Ramdeo Mahto, Gajadhar Mahto, Radha Paswan, Chandeshwar Singh, Siyaram Das and Bhutta Mahto, all armed with lathi. In paragraph 8 P.W. 2 also reiterated the motive i.e. the dispute between Kameshwar Sharma and the wife of accused Rajendra Mahto with regard to uprooting of Khesari crop from the field of Kameshwar Sharma. In paragraph 9 P.W. 2 accepted that his police statement was recorded on 17.02.1987 as there was stitch on his mouth and he was not in a position to speak. 9. P.W. 3 Sanjay Kumar is the son of P.W. 2 Ramanand Singh and stated in his evidence that occurrence took place in the night of Tuesday around 9 P.M. about 1 and ½ years earlier from the date of his evidence. He stated that during the night of occurrence he had gone with the meal to serve dinner to his father who was guarding the pump set. While P.W. 3 was returning after his father took the dinner he saw 30-35 miscreants armed with lathi, spear and farsa coming towards the fig tree where his uncle Ramakant Singh was sleeping. He stated that during the night of occurrence he had gone with the meal to serve dinner to his father who was guarding the pump set. While P.W. 3 was returning after his father took the dinner he saw 30-35 miscreants armed with lathi, spear and farsa coming towards the fig tree where his uncle Ramakant Singh was sleeping. After arrival of the miscreants Bibhuti Kumar @ Upendra Kumar exhorted others to assault his uncle. P.W. 3 thereafter raised alarm on which his father P.W. 2 came out of the hut from near the pump set with lathi and ran towards his uncle. Miscreants assaulted his uncle with lathi, spear and farsa. In paragraph 3 P.W. 3 claimed that his father intervened to save his uncle, whereupon some of the miscreants also assaulted his father. P.W. 3 ran towards the village raising alarm. From the village uncle of the witness informant (P.W. 5) Ram Sanjiwan Sharma, P.W. 1 Kameshwar Singh, Ram Kripal Singh (not examined), P.W. 11 Pankaj Kumar and others came. While the witnesses coming from the village were at a distance of 10-12 cubit the miscreants stopped the assault and run away. After the miscreants escaped witness and others came to the place of occurrence and saw that his uncle has suffered farsa injury on his forehead, both legs and on his testicles caused by spear, besides other lathi injuries on other portions of the body. His father P.W. 2 had also suffered injury on both the lips, spear injury on his leg, besides other lathi injuries on other parts of body. In paragraph 5 P.W. 3 stated that both his father and uncle were carried to Narma Hospital for treatment on cot. In the hospital uncle of P.W. 3 Ramakant Singh died. In paragraph 6 P.W. 3 admitted that his police statement was recorded 4 days after the occurrence on the 14th day of the month of Falgun. In paragraph 7 P.W. 3 claimed that he identified the assailants, namely, Bibhuti Kumar @ Upendra Kumar, Ram Sanjiwan Sharma, Ram Pratap Mahto armed with farsa, Surendra Sharma, Raj Kumar Sharma, Akhileshwar Sharma, Ram Vinay Sharma, Harish Chandra Mahto armed with spear, Chandeshwar Singh, Chalitar Mahto, Suith Mahto, Rajendra Mahto, Sarjug Mahto, Bisheshwar Mahto, Ramdeo Mahto, Jagdish Mahto, Baijnath Mahto armed with lathi. In paragraph 9 P.W. 3 also admitted in cross-examination that he is not aware about the case filed by Jagtarni Devi, wife of Rajendra Mahto regarding the occurrence of loot and assault in her house on 10.02.1987 in which he is accused as he appeared only once before the Magistrate and obtained bail. P.W. 3 further stated that he is not aware about the stage of the case filed by Jagtarni Devi. 10. P.W. 1 Kameshwar Sharma is the attesting witness of the fardbeyan and has stated in his evidence that occurrence took place during the night of 10.02.1987 at about 9 P.M. when he was at his house. The witness heard alarm being raised towards west of his house and thereafter rushed in that direction along with others. While he was 4-5 lagga ahead he saw 30-35 miscreants assaulting Ramakant Singh (deceased) and Ramanand Singh (P.W. 2) by means of lathi, spear. According to P.W. 1 place of occurrence is at a distance of about 150-200 yards from his house. He further stated that he came to the place of occurrence Brahm Asthan where there is a fig tree. In paragraph 2 P.W. 1 claimed that he and others reached the place of occurrence raising alarm. While P.W. 1 and others were 4-5 lagga ahead of the place of occurrence miscreants began to escape. After reaching the place of occurrence P.W. 1 saw the deceased Ramakant Singh and P.W. 2 Ramanand Singh in injured condition and they were carried to Narma Hospital on cot. During treatment Ramakant Singh died in the hospital. Treatment of Ramanand Singh however, continued. In paragraph 3 P.W. 1 claimed that he identified the miscreants in moon light, Eveready torch light. Amongst the miscreants witness claimed that he identified Bibhuti Kumar @ Upendra, Ram Sanjiwan Sharma, Ram Pratap Mahto, Ganesh Shahi, Ram Bilash Rai, Ram Niwas Singh, all armed with farsa, Surendra Prasad Sharma, Raj Kumar, Vinay Kumar, Akhileshwar Kumar, Raj Kumar Paswan, Harish Chandra Mahto, all armed with spear, Chandeshwar Singh, Suith Mahto, Chalitar Mahto, Bhutta Mahto, Rajendra Mahto, Sarjug Mahto, Bisheshwar Mahto, Jagdish Mahto, Ramdeo Mahto, Baijnath Mahto, Radha Paswan, Gajadhar Mahto, Ram Ekbal Singh, Braj Kishore Shahi @ Budha Shahi, Deep Narayan Rai, Junaid Alam and Siyaram Das, all armed with lathi. From paragraphs 5, 6 of the evidence of P.W. 1 it appears that he saw both the deceased and P.W. 2 Ramanand Singh in injured condition at the place of occurrence giving detailed description of the injury caused to them. In paragraph 7 P.W. 1 stated that one day prior to the occurrence on 9.2.1987 there was altercation between him and the wife, daughter in law of accused Rajendra Mahto with regard to uprooting of Khesari crop from his field and thereafter he had snatched grass basket from them. Later, during evening on the same day his son Pankaj Kumar and nephew Ansu Kumar were going to the house of Mukhiya of village Narma to attend Astjam on bicycle which was snatched by Harish Chandra Mahto near his house, who asked his son to call his father (P.W. 1) for return of the bicycle. Having learnt about the bicycle snatching incident by Harish Chandra Mahto, P.W. 1 along with villagers P.W.5 informant Ram Sanjiwan Sharma, Ramakant Singh (deceased), Arbind Thakur, Sitaram Thakur, Mahesh Thakur and others came to the house of Harish Chandra Mahto and after altercation the bicycle was returned. In the same night Harish Chandra Mahto sent ultimatum through Krishna Kumar Sharma that he shall uproot the Khesari crop in the same night. In paragraph 9 P.W. 1 further claimed that on 10.02.1987 there was demonstration by the CPI members in Bochhan block. In the same evening the accused persons assembled in a group and came to the place of occurrence and then committed the occurrence. B.D.O., Bochhan had also come in the evening. 11. P.W. 4 Vidyanandan Singh, P.W. 6 Nityanand Thakur, P.W. 8 Pramod Singh are the co-villagers of the informant. They came to the place of occurrence along with him after hearing the alarm raised by P.W. 3 Sanjay Kumar. Their evidence is also on the similar lines as that of the informant as they have also claimed to have identified 13, 20, 11 of the miscreants respectively. 12. P.W. 11 Pankaj Kumar is the son of P.W. 1 and came to the place of occurrence along with his father after hearing the alarm raised by P.W. 3. He also identified 11 of the miscreants. His evidence is also on the similar lines as that of his father. 13. 12. P.W. 11 Pankaj Kumar is the son of P.W. 1 and came to the place of occurrence along with his father after hearing the alarm raised by P.W. 3. He also identified 11 of the miscreants. His evidence is also on the similar lines as that of his father. 13. Having considered the evidence of informant, other eye witnesses, now we consider the medical evidence of P.W. 9 Dr. Hari Kishore Prasad Thakur and P.W. 7 Dr. Manoranjan Kumar Srivastava. P.W. 9 was posted on the date of occurrence in Narma State Dispensary and examined the deceased, injured soon after they were brought to the dispensary in the night of 10.02.1987 at 11 P.M. He found 9 injuries on the person of P.W. 2 Ramanand Singh, which are as follows :- (i) Extensive bruise-left side face including left eye-brow, left eye groove swollen (ii) Upper lip swollen and torn internally 1/3” X ¼” X muscle deep (iii) Right ankle joint bruised and swollen (iv) Left ankle joint swollen and difficult movement (v) Swelling tenderness and several bruise marks measuring about 2 ½” X ½” each, on right thigh (vi) Swelling and dislocation of left elbow joint (vii) Sharp cut 2 ½” X 1/3” X muscle deep on lower third of left leg (viii) Swelling and tenderness of right palm (ix) Bruise with swelling on right elbow joint Injury nos. vii, viii are caused by sharp cut weapon, may be farsa and rest injuries are caused by hard blunt object, may be lathi. All the injuries according to P.W. 9 are simple in nature. From paragraph 4 of the evidence of the doctor, it appears that patient was transferred to Sadar Hospital, Muzaffarpur suggesting X-ray of injury nos. iii, iv and vi (iv, v, and viii in injury report). Injury report of P.W. 2 was proved by P.W. 9 as Ext. 6. All the injuries according to P.W. 9 are simple in nature. From paragraph 4 of the evidence of the doctor, it appears that patient was transferred to Sadar Hospital, Muzaffarpur suggesting X-ray of injury nos. iii, iv and vi (iv, v, and viii in injury report). Injury report of P.W. 2 was proved by P.W. 9 as Ext. 6. In paragraph 6 of his evidence P.W. 9 further stated that on the same day at about same time he also examined Ramakant Singh (deceased) and found him to be unconscious with traumatic shock, blood pressure 90/60 mm, pulse 60 per minute and the following injuries:- (i) Incised wound 2” X 1/3” X muscle deep on right leg just below the knee joint (ii) Incised wound 2 ½” X 1/3” X bone deep 3” below the first injury on right leg (iii) Penetrating wound 1 ½” X ½” X bone deep on right leg below the second injury (iv) Fracture of lower third of tibia and fibula. Fracture may be compound as pieces of small bones were felt during stitch (v) Incised wound 2” X 1/3” X muscle deep on left leg below the knee joint (vi) Penetrating wound 1 ½” X ½” X bone deep below the first injury on the left leg (vii) Fracture of left leg-lower third of tibia and fibula (viii) Extensive bruise front of chest both sides with marked swellings (ix) Extensive bruise over frontal belly with marked abdoninial distance (x) Extensive bruise on right scapular region (xi) Fracture of radius and ulna at elbow joint on right side (xii) Fracture of shaft of radius and ulna lower third-left side (xiii) Left palm middle finger torn and crushed (lacerated) (xiv) Right thigh – several bruises adhered to each other measuring about 3” X ½”, each (xv) Left lip joint – several bruises adhered to each other measuring about 4” X ½” each (xvi) Bruise with scratch 1” X ½” on scalp In paragraph 8 P.W. 9 opined that injury no. i, ii and v was caused by sharp cutting substance, may be by farsa but are simple in nature, injury no. iii and vi are caused by sharp pointed instrument, may be by spear and are simple in nature. Injury nos. iv, vii, xi and xii are caused by hard and blunt substance, such as, lathi and are grievous in nature. iii and vi are caused by sharp pointed instrument, may be by spear and are simple in nature. Injury nos. iv, vii, xi and xii are caused by hard and blunt substance, such as, lathi and are grievous in nature. Other injuries are caused by hard and blunt substance, may be by lathi and are simple in nature. In paragraph 9 P.W. 9 further opined that though none of the injury is fatal but the condition of the patient as a whole is grave and precarious. Injury report of deceased Ramakant Singh was proved by P.W. 9 and marked as Ext. 6/1. In paragraph 16 of his evidence P.W. 9 stated that when the two injured i.e. the deceased and P.W. 2 came to his hospital he sent O.D. slip to police and on that information police came to hospital. Dr. Thakur in his cross-examination having sent the O.D. Slip proved the same as Ext. B. In paragraph 17 P.W. 9 further stated that he had sent the O.D. slip to the police station with one of the men who had come with the two injured. In the same paragraph he further stated that he cannot say as to whether the police which arrived on receipt of the O.D. slip stayed in the hospital for the whole night. 14. P.W. 7 Dr. Manoranjan Kumar Srivastava conducted post mortem examination on the dead body of deceased Ramakant Singh which was identified by police constable no. 88 Raj Kouli Pandey and Home-guard 11050 Ram Babu Choudhary on 11.02.1987 at 4 P.M. The post mortem examination revealed the following injuries:- (i) Fracture of ulna & radius of right hand with bruises found all over the right hand. (ii) Fracture of ulna & radius of left hand associated with bruises with all over the left hand. (iii) Incised wound 3” X ½” X bond deep on the middle of the skull bone with blood clot on opening the vault of the skull bone, fracture of the frontal bone of the skull was found. Behind the fracture, subdural haemotoma was found. (iv) Incised and punctured wound (penetrating wound) 1” X ½” X bone deep on 2” laterally to the right superior iliac spine. (v) Stitched wound 1” found on the middle finger of the left hand. The stitch was opened and injury was found to be bone deep. Behind the fracture, subdural haemotoma was found. (iv) Incised and punctured wound (penetrating wound) 1” X ½” X bone deep on 2” laterally to the right superior iliac spine. (v) Stitched wound 1” found on the middle finger of the left hand. The stitch was opened and injury was found to be bone deep. According to P.W. 7 the cause of death was haemorrhage and shock due to above mentioned injuries. Injury no. i and ii were caused by hard and blunt object, such as, lathi. Injury no. iii was caused by sharp cutting object, such as, farsa and injury no. iv was caused by some sharp pointed weapon, such as spear. Time elapsed since death is within 24 hours. Injury nos. iii, iv were on the vital parts of the body. Injury nos. iii, iv were sufficient in ordinary course of nature to cause death. P.W. 7 also proved the post mortem report Ext. 5. 15. P.W. 10 Jagannath Pandey on the date of occurrence served as A.S.I. in Hathauri P.S. He has stated in his evidence that on 10.02.1987 he prepared injury requisition of both the injured P.W. 2 and the deceased Ramakant Singh at Narma State Dispensary, copy whereof was given to Dr. Hari Kishore Prasad Thakur, P.W. 9 the then Medical Officer Incharge of Narma State Dispensary who received both the requisition and made endorsement about the injuries of both the injured on the requisition which he prepared and proved as Exts. 7, 7/1. The injury requisition of both the injured was made by carbon process and proved by witness as Exts. 9, 9/1. In paragraph 2 P.W. 10 stated that he has also given written instruction to P.W. 9 indicating that both the injured are unconscious and no sooner they become conscious information should be given to him so that he may record their statement. Aforesaid instruction was also written by the witness by carbon process which was also proved by the witness as Ext. 10. Instruction was received by P.W. 9 vide endorsement which the witness proved as Ext. 7/2. In cross-examination, paragraph 4 P.W. 10 stated that before leaving the police station for hospital he made entry no. 151 dated 10.02.1987 at 23.40 hours which was also countersigned by Officer in charge Ram Pravesh Tiwari (P.W. 13). The counter signature of P.W. 13 is also proved by P.W. 10 as Ext. 7/2. In cross-examination, paragraph 4 P.W. 10 stated that before leaving the police station for hospital he made entry no. 151 dated 10.02.1987 at 23.40 hours which was also countersigned by Officer in charge Ram Pravesh Tiwari (P.W. 13). The counter signature of P.W. 13 is also proved by P.W. 10 as Ext. C. In paragraph 5 P.W. 10 further stated that he arrested Birendra Thakur (son of the deceased) who was accused in another case. P.W. 10 further stated in the same paragraph that information slip, Ext. B was handed over to him by the Chaukidar. He further stated in the same paragraph that on 10.02.1987 at about 11.50 P.M. he left the police station for Narma Dispensary and returned therefrom on 11.02.1987 at 5.30 A.M., which is indicated in Station Diary Entry No. 154 dated 11.02.1987 and the said entry was also proved by the witness as Ext. C/1. 16. P.W. 13 Ram Pravesh Tiwari is the Investigating Officer of the case. He has stated in his evidence that on 11.02.1987 he was posted as Officer in charge of Hathauri P.S. and on that day he was on duty at the police station. He further stated that on 11.02.1987 at about 9.30 A.M. he received O.D. slip from Dr. Hari Kishore Prasad Thakur (P.W. 9) of Narma State Dispensary indicating that Ramakant Singh left for his heavenly abode. Information given in the O.D. slip was recorded in Station Diary Entry No. 161 dated 11.02.1987 and thereafter he proceeded for Narma State Dispensary along with A.S.I. Jagannath Pandey (P.W. 10). On the same day at about 10.30 A.M. recorded the statement of brother of the deceased informant Ram Sanjiwan Sharma (P.W. 5). The Officer in charge proved the fardbeyan stating that the same was scribed by him and he identified his signature vide Ext. 2. Fardbeyan was sent to Hathauri P.S. through Chaukidar Sonephul Paswan on the basis of which First Information Report was registered by A.S.I. Ganesh Singh which is in his handwriting and P.W. 13 proved the formal F.I.R. as Ext. 12. P.W. 13 in paragraph 4 further stated that he took up the investigation of the case, prepared inquest report of deceased Ramakant Singh in Narma State Dispensary in presence of witness Dineshwar Prasad Singh and Bachcha Singh and proved the inquest report as Ext. 11. 12. P.W. 13 in paragraph 4 further stated that he took up the investigation of the case, prepared inquest report of deceased Ramakant Singh in Narma State Dispensary in presence of witness Dineshwar Prasad Singh and Bachcha Singh and proved the inquest report as Ext. 11. For conducting post mortem on the dead body of Ramakant Singh the dead body was sent through Constable No. 88 Wakil Pandey and Home-guard No. 1150 Rambabu Choudhary to S.K.M.C.H., Muzaffarpur. In paragraph 6 P.W. 13 stated that he recorded the further statement of informant Ram Sanjiwan Sharma (P.W. 5). In the same paragraph P.W. 13 further stated that he tried to take the statement of injured Ramanand Singh who was admitted in Narma State Dispensary but could not record his statement as he was injured. In paragraph 9 P.W. 13 stated that from Narma State Dispensary he proceeded for place of occurrence village Dhanushi and inspected the place of occurrence at 2.30 P.M. as per information given by informant. In paragraphs 8, 9 and 10 P.W. 13 has given the description of the place of occurrence. In paragraph 11 P.W. 13 stated that from the place of occurrence he collected blood stained soil, towel (gamchha), paddy straw and green bamboo lathi which was seized in presence of witnesses Mahesh Thakur (not examined) and Kameshwar Sharma (P.W. 1), prepared the seizure list, which was proved by the witness as Ext. 1. In paragraph 12 P.W. 13 further stated that on 14.02.1987 at 12.30 P.M. he again visited Narma State Dispensary for recording the statement of injured Ramandand Singh (P.W. 2) but his statement could not be recorded as he was unable to speak. P.W. 13 further stated in paragraph 13 that statement of P.W. 2 was recorded on 17.02.1987. In paragraph 14 P.W. 13 stated that he sent the article collected from the place of occurrence for examination by Director, Forensic Science Laboratory, Patna. In paragraph 15 P.W. 13 further stated that he sent letter dated 3.3.1987 to P.W. 9 seeking clarification from him about the injuries which was proved by the witness as Ext. 13. The clarification given by P.W. 9 is on the back of letter, Ext. 13, which is marked as Ext. 6/2. In paragraph 15 P.W. 13 further stated that he sent letter dated 3.3.1987 to P.W. 9 seeking clarification from him about the injuries which was proved by the witness as Ext. 13. The clarification given by P.W. 9 is on the back of letter, Ext. 13, which is marked as Ext. 6/2. In paragraphs 16, 17 P.W. 13 stated that he is unaware of any petition filed by the informant asserting that fardbeyan named accused were erroneously not sent up for trial. In paragraph 19 P.W. 13 denied the suggestion that he conducted the investigation of the case improperly as he was in collusion with the accused persons. 17. Learned counsel for the appellants assailed the finding of conviction of appellants on the ground that none of the prosecution witnesses including the informant (P.W. 5) and injured P.W. 2 has seen the occurrence, which is evident from the fardbeyan as also the evidence of informant P.W. 5, the injured P.W. 2 and other witnesses who reached the place of occurrence after alarm being raised by P.W.3, namely, P.Ws. 1, 3, 4, 6, 8 and 11. In this connection he further pointed out that there has been unexplained delay of about 12 hours in lodging the fardbeyan, which is indicative of the fact that neither the informant nor any other witness who reached the place of occurrence after alarm being raised by P.W. 3 had seen the occurrence. The deceased and the injured reached Narma State Dispensary on 10.02.1987 at about 11 P.M. and Dr. Thakur having found them seriously injured admitted the two injured in the hospital and then reported the matter to the Officer in charge, Hathauri P.S. under report dated 10.02.1987 issued at 11 P.M., Ext. B, which was received in the police station through one of the men who came along with the two injured. Having received Ext. B Jagannath Pandey (P.W. 10) came to the hospital in the same night around 11.50 P.M. and remained there until 5 A.M. of 11.02.1987 but neither P.W. 5 nor P.W. 1 the attesting witness of the fardbeyan recorded their statement before him. Having received Ext. B Jagannath Pandey (P.W. 10) came to the hospital in the same night around 11.50 P.M. and remained there until 5 A.M. of 11.02.1987 but neither P.W. 5 nor P.W. 1 the attesting witness of the fardbeyan recorded their statement before him. Learned counsel further submitted that the fardbeyan was recorded at 10.30 A.M. on 11.02.1987 alleging violence against 14 accused persons but in court P.W. 1 and other witnesses have implicated even others though others were not named by the witnesses before the Investigating Officer during investigation, which fact has been confirmed by the Investigating Officer in the different paragraphs of his evidence. Aforesaid conduct of the witnesses is indicative of the fact that prosecution witnesses not only lodged the fardbeyan after unexplained delay of about 12 hours but also falsely implicated innocent persons during evidence in court. In this connection, it is specifically pointed out that Kameshwar Sharma (P.W. 1) named 29 accused persons vide paragraph 3 of his evidence in court who participated in the occurrence but such implication of the accused persons by P.W. 1 has to be disbelieved in view of the fact that he being signatory to the fardbeyan as attesting witness was required to have explained as to why did he not disclose the name the other accused persons to informant before recording of fardbeyan and to the Investigating Officer while recording his statement. From the evidence of Investigating Officer (P.W. 13) in paragraphs 23, 39, 48 it would appear that P.W. 1 disclosed the name of only 7 accused persons before the Investigating Officer. Aforesaid conduct according to learned counsel for the appellants is indicative of the fact that P.W. 1 having not seen the occurrence is trying to implicate even those with whom he had grudge. 18. According to learned counsel for the appellants P.W. 2 is fit to be disbelieved on the ground that he recorded his police statement belatedly on 17.02.1987 though he has not suffered any such injury that he could not speak. In this connection, with reference to the injury report of P.W. 2, Ext. 6 counsel the appellants submitted that injuries suffered by P.W. 2 being simple and on the upper lip there was no difficulty for him to name the miscreants whom he identified during the occurrence. In this connection, with reference to the injury report of P.W. 2, Ext. 6 counsel the appellants submitted that injuries suffered by P.W. 2 being simple and on the upper lip there was no difficulty for him to name the miscreants whom he identified during the occurrence. He has further questioned the delay in recording the police statement of P.W. 2 on the ground that from the evidence of Dr. Thakur (P.W. 9) paragraph 3, it is evident that all his injuries were simple and patient was transferred to Sadar Hospital, Muzaffarpur for X-ray examination for injury nos. iii, iv, vii but there is no evidence on record to suggest that he was ever subjected to any X-ray at Sadar Hospital, Muzaffarpur. In this connection it is pointed out that there is no evidence on record to suggest any further treatment given to P.W. 2 after his examination by Dr. Thakur. In this background it is submitted that P.W. 2 having suffered simple injury was pretending that he was unconscious not able to record statement though Dr. Thakur in his report, evidence has neither stated nor deposed that P.W. 2 was unconscious as he only reported, deposed about deceased Ramakant Singh that he was unconscious when brought to the hospital. 19. Learned counsel also assailed the evidence of Sanjay Kumar (P.W. 3), son of P.W. 2 on the ground that his evidence does not inspire confidence. According to learned counsel P.W. 3 after serving dinner to his father in the hutment near the boring was returning home and then saw the miscreants approaching his uncle near Brahm Asthan, whereafter he raised alarm and came running towards his house and returned with P.W. 5 and other villagers i.e. P.Ws. 1, 11, 4, 6, 8 and others to the place of occurrence. P.W. 3 in paragraph 3 of his evidence is categoric that while he was 10-12 cubit ahead of the place of occurrence the accused persons stopped the assault and escaped. His statement before the police was also recorded on 14.02.1987, as has been admitted by the witness himself in paragraph 6 of his evidence i.e. after 4 days of the occurrence. The witness has not produced the 3 cell Eveready torch by which he could identify the accused persons. P.W. 3 also accompanied the deceased and the injured to Narma State Dispensary where they were carried on cot. The witness has not produced the 3 cell Eveready torch by which he could identify the accused persons. P.W. 3 also accompanied the deceased and the injured to Narma State Dispensary where they were carried on cot. P.W. 3 being available at the dispensary during the night, according to learned counsel, should have given his police statement in the night itself. Failure to do so is indicative of the fact that he had not identified the assailants. 20. Learned counsel for the appellants assailed the evidence of informant Ram Sanjiwan Sharma (P.W. 5) on the ground that he having come to the place of occurrence after hearing the alarm raised by P.W. 3 along with P.W. 3 and other villagers saw 30-35 miscreants making good their escape from near Brahm Asthan, out of whom he identified 13 miscreants from his 3 cell Eveready Torch, moon light and named them in paragraph 4 of his evidence. According to learned counsel, informant P.W. 5 has not named one of the accused i.e. Harish Chandra Mahto in court though named by him in the fardbeyan at serial no. 10. Learned counsel also submitted that 3 cell Eveready torch by which informant identified the accused persons was also not produced by him before the Investigating Officer. Learned counsel further challenged the evidence of P.W. 5 on the ground that in paragraph 7 P.W. 5 has stated that during night of 10.02.1987 police did not come to Narma State Dispensary and as the police did not come the Dispensary fardbeyan could not be given by him during the night of occurrence. In this connection, learned counsel pointed out with reference to Ext. B the information sent by Dr. Thakur (P.W. 9) to the Officer in charge Hathauri P.S. informing him that two injured of the case has been admitted in Narma State Dispensary and on the basis of the said information as per Station Diary Entry No. 151 recorded at 11.40 hours on 10.02.1987, A.S.I. Jagannath Pandey vide Station Diary Entry No. 153 recorded at 23.50 hours on 10.02.1987 came to Narma State Dispensary during the same night for doing the needful. With reference to aforesaid station diary entry and the evidence of A.S.I Jagannath Pandey (P.W. 10) learned counsel for the appellants submitted that as P.Ws. With reference to aforesaid station diary entry and the evidence of A.S.I Jagannath Pandey (P.W. 10) learned counsel for the appellants submitted that as P.Ws. 5, 3, 1, 4, 6 with whom the two injured had come to Narma State Dispensary in the night of occurrence, were not coming forward to record their statement before police, the court below ought to have concluded that prosecution had no clue about the identity of the accused persons and informant in order to salvage the false implication of the accused in paragraph 7 of his evidence incorrectly stated that police did not come to Narma State Dispensary in the night of 10.02.1987, which is wholly contrary not only to the documentary evidence but also the evidence of P.W. 10 and Dr. Thakur (P.W. 9) who also admits in his evidence that police had come to Narma State Dispensary in the night of occurrence for not only recording the statement but also to submit requisition for examination of the injury suffered by the two injured. 21. Counsel for the State, informant have supported the judgment of conviction and submitted that P.Ws. 1, 4, 5, 6, 8 and 11 came to the place of occurrence along with P.W. 3 after hearing the alarm raised by him, may or may not be seen the occurrence of assault but they did see the miscreants making good their escape from the place of occurrence and the identification made by them in the moon light as also by 3 cell Eveready torch should be accepted by this Court as the same has already been found trustworthy by the trial court. They further submitted that delay of 12 hours in recording the fardbeyan is not substantial delay and fit to be condoned, as prosecution party having suffered injuries on the person of not only the deceased but also his brother P.W. 2, was attending on them in Narma State Dispensary and had no opportunity to visit the police station for recording their statement. Learned counsel further submitted with reference to the evidence of informant P.W. 5 paragraph 7 that police did not come to Narma State Dispensary in the night of 10.02.1987, as such, prosecution party had no occasion to report its version to the police due to non-availability of the police officer in the hospital and on account of night they could not approach the police officer at the police station. Learned counsel further submitted that in any case evidence of injured P.W. 2 has to be accepted as his presence at the place of occurrence cannot be doubted in view of the injury suffered by him and found on his body by Dr. Thakur (P.W. 9). Learned counsel with reference to the judgment of the Supreme Court in the case of Jit Singh Vs. State of Punjab, AIR 1976 Supreme Court 1421, paragraph 18 and State of Uttar Pradesh Vs. Naresh and others, (2011) 4 Supreme Court Cases 324, paragraph 32 submitted that name of other accused persons not named in the F.I.R. have been added during trial, may be an omission but not to affect the merit of the prosecution case as fardbeyan/F.I.R. is not the encyclopedia of the entire case, the accused persons named during trial have also been rightly summoned under Section 319 Cr.P.C. and convicted by the trial court. Their conviction is also required to be upheld by this Court. 22. In view of the rival submission made by the counsel for the appellants, State and the informant, we have to consider the prosecution case in the light of the evidence led to support the same. It appears on the date, time of occurrence deceased was guarding his wheat, maize crop, lying on paddy straw at Brahm Asthan beneath fig tree, his brother P.W. 2 was also guarding the pump set nearby. P.W. 3, son of P.W. 2 had gone to serve dinner to his father at about 9.30 P.M. Having served the dinner P.W. 3 was returning home saw 14 miscreants variously armed approaching towards Brahm Asthan. P.W. 3 raising alarm came towards his home. Hearing alarm P.W. 2 also went towards his brother near Brahm Asthan saw the miscreants assaulting his brother. To save his brother P.W. 2 also intervened by wielding lathi, suffered injury and fell down on the ground along with his brother. P.W. 3 raising alarm came towards his home. Hearing alarm P.W. 2 also went towards his brother near Brahm Asthan saw the miscreants assaulting his brother. To save his brother P.W. 2 also intervened by wielding lathi, suffered injury and fell down on the ground along with his brother. Meanwhile, P.W. 3 along with his uncle informant P.W. 5 and other villagers i.e. P.Ws. 1, 11, 4, 6, 8 came to the place of occurrence and while they were 10-15 cubit ahead of the place of occurrence (Brahm Asthan) miscreants stopped the assault and made good their escape. The case of the prosecution that they identified the miscreants while they were making good their escape in the moon light, 3 cell Eveready torch appears to be doubtful in view of the fact that none of the prosecution witnesses either P.W. 3 or P.W. 5 or P.W. 1 or any other prosecution witness reported the matter to the police in the night of 10.02.1987 on the ground that the police did not approach Narma State Dispensary in the night is wholly incorrect verging on falsity in view of the fact that no sooner the two injured were brought to Narma State Dispensary on cot by prosecution party including P.Ws. 5, 3, 1, 4, 6, 8 and 11 Dr. Thakur (P.W. 9) having seen the condition of the two injured admitted them in the hospital and furnished information to that effect to the Officer in charge, Hathauri P.S. vide Ext. B, perusal whereof indicates that the same was issued by Dr. Thakur (P.W. 9) on 10.02.1987 at 11 P.M. It further appears from the evidence of P.W. 9 that the information slip was sent to the police through one of the men who had brought the two injured to Narma State Dispensary on cot. It also appears from his evidence that police approached the hospital in the night. In this connection evidence of A.S.I. Jagannath Pandey (P.W. 10) is also relevant as after receipt of information, Ext. B the same was entered in Station Diary vide Entry No. 151 at 23.40 hours on 10.02.1987, Ext. C. In the light of station diary entry, Ext. C P.W. 10 came to Narma State Dispensary in the night of 10.02.1987 for doing the needful but the deceased was unconscious and the other injured P.W. 2 though not found unconscious by Dr. C. In the light of station diary entry, Ext. C P.W. 10 came to Narma State Dispensary in the night of 10.02.1987 for doing the needful but the deceased was unconscious and the other injured P.W. 2 though not found unconscious by Dr. Thakur did not record statement. P.W. 10 noted down the injury of the two injured, waited in Narma State Dispensary until 5.30 A.M. of 11.02.1987 and then instructed Dr. Thakur to inform him as and when the two injured are in position to record their statement so that he may come and record their statement. The fact that P.W. 10 waited in Narma State Dispensary until 5.30 A.M. of 11.02.1987 is also evident from Entry No. 154 of the station diary, Ext. C/1 and the evidence of P.W. 10. The 3 cell Eveready torch by which P.W. 3 and other eye-witnesses identified the miscreants was also not produced either before the Investigating Officer, P.W. 13 or in the trial court, the story of having identified the miscreants with the help of 3 cell Eveready torch also become doubtful. 23. In the light of the evidence of Dr. Hari Kishore Prasad Thakur (P.W. 9), A.S.I. Jagannath Pandey (P.W. 10) and the documentary evidence with regard to information given to the Officer in charge, Hathauri P.S. on 10.02.1987 at 11 P.M., Ext. B as also the corresponding Station Diary Entry Nos. 151, 154, Exts. C, C/2, C/1, we are of the view that the explanation given by informant P.W. 5 in paragraph 7 of his evidence that the police was not available in Narma State Dispensary during the night of occurrence to record his statement, which was recorded on 11.02.1987 at 10.30 A.M. after Officer in charge, P.W. 13 reached there, is wholly incorrect bordering on falsehood and does not inspire confidence to accept his explanation. In this connection, we may observe that unexplained delay in lodging the fardbeyan itself is sufficient to disbelieve the prosecution case. In this connection, we place reliance on the judgment of the Supreme Court in the case of Ganesh Bhavan Patel & another Vrs. State of Maharashtra, A.I.R. 1979 Supreme Court 135. In this connection, we may observe that unexplained delay in lodging the fardbeyan itself is sufficient to disbelieve the prosecution case. In this connection, we place reliance on the judgment of the Supreme Court in the case of Ganesh Bhavan Patel & another Vrs. State of Maharashtra, A.I.R. 1979 Supreme Court 135. It appears in the said case, three prosecution eye-witnesses of the occurrence recorded their statement before the Investigating Officer on the day following the evening of the occurrence as Welji Harkha, P.W.3 was examined at 8 AM, Pramila at 9.15 or 9.30 AM and Kuvarbai at 1 P.M. In the aforesaid background, Hon’ble Supreme Court observed in paragraph 15 that delay of a few hours simplicitor in recording the fardbeyan and statement of eye-witnesses may not by itself amount to a serious infirmity in the prosecution case. Delay, however, may assume such a character if there is concomitant circumstance to suggest that the witnesses were deliberately marking time to fix the identity of the accused, shape to be given to the case and the eye-witness to be introduced. In the instant case, P.W. 10 was available at Narma State Dispensary in the night of occurrence itself, yet the eye-witnesses, who accompanied the deceased and the injured to Narma State Dispensary carried the cot, did not choose to record their statement in the night without giving any explanation therefor. P.W. 1 being the signatory of the fardbeyan was aware that informant P.W. 5 had named only 14 accused persons in the fardbeyan, yet he made attempt to implicate other 15 persons during trial, which is indicative of the fact that the prosecution party was out to implicate persons at will. This becomes even more significant in the light of the evidence of Investigating Officer P.W. 13, who candidly accepted the fact in paragraphs 23, 39, 48 that P.W. 1 had not named as many as 22 accused persons before him whom he has named in paragraph 3 of his evidence. Aforesaid conduct of P.W. 1 is indicative of the fact that he had not seen the occurrence and was just making a wild guess to implicate persons with whom prosecution party had grudge. In this connection the case lodged by Jagtarni Devi, wife of accused no. 5 bearing Hathauri P.S. Case No. 14/87 dated 10.02.1987, Ext. Aforesaid conduct of P.W. 1 is indicative of the fact that he had not seen the occurrence and was just making a wild guess to implicate persons with whom prosecution party had grudge. In this connection the case lodged by Jagtarni Devi, wife of accused no. 5 bearing Hathauri P.S. Case No. 14/87 dated 10.02.1987, Ext. I is also relevant, in which not only the deceased but P.W. 2 the injured witness as also the other prosecution witnesses, namely, P.Ws. 1, 11, 3 and informant P.W. 5 were all accused. P.W. 2 the injured witness is also not fit to be relied upon as from the injury suffered by him and noted in paragraph 13 above, it is quite evident that he had suffered all simple injuries, one of the injury suffered by him may be on the upper lip but from perusal of his injury, we are confident that he was in a position to speak and having not been found unconscious by Dr. Thakur (P.W. 9) in the night of occurrence, in our opinion, had he identified the miscreants must have made statement before P.W. 10 who visited the hospital in the night of occurrence and remained there until 5.30 A.M. of 11.02.1987 but P.W. 2 did not choose to make his statement during the night of the occurrence as also until 17.02.1987. There is yet another circumstance not to accept the evidence of P.W. 2 as he has not given any indication about the treatment given to him after he was transferred to Sadar Hospital, Muzaffarpur for X-ray examination in connection with injury nos. iii, iv and vi, which is also evident from the evidence of Dr. Thakur (P.W. 9). 24. In the light of our discussion of the entire prosecution evidence of eye and other witnesses, we are satisfied that prosecution has miserably failed to prove its case beyond reasonable doubt, in the circumstances, we have no option but to set aside the judgment of conviction dated 21.04.1990, which is, accordingly, set aside. Appellants were granted bail at the time of admission of the appeal(s). They are discharged from the liabilities of their respective bail bond.