JUDGMENT Hemant Kumar Srivastava, J. 1. All the above-said appellants have been convicted and sentenced by a common judgment of conviction dated 12-07-2001 and sentence order dated 16-07-2001 passed by VIth Additional Sessions Judge, West Champaran, Bettiah in Sessions Trial No. 91 of 1985 for the offences punishable under Sections-304(I) read with Sections-149, 148 & 323 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for 10 years under Section-304(I) read with Section-149 of the Indian Penal Code but no separate sentence was awarded for the offences under Sections-323 & 148 of the Indian Penal Code. Since all the above said three Cr. Appeals have arisen out of the aforesaid common judgment and sentence order, all the above-said three criminal appeals were heard together and a common judgment is being passed in the aforesaid criminal appeals. 2. The prosecution case, in brief, is that one Mangar Baitha gave his fardbeyan to ASI Saiyad Jiyaullah of Ramnagar police station at State Dispensary, Ramnagar on 25-10-1983 at 11.30 a.m. to this effect that fare of his tyre cart was lying due against Dineshwar Rai who had directed his Sipahi, Rameshwar Dharikar to make payment of aforesaid dues. He further stated that on 25-10-1983 at about 8.00 a.m., he demanded Rs 200/- as fare from Ramashraya Dharikar at his Ghotha (Darwaza) but aforesaid Ramashraya Dharikar used abusive language, as a result of which, a hot exchange of words took place between them. In the meantime, Ramadhar Dharikar came there and assaulted him with lathi on his armpit. He fled away from there. He further stated that when Mukhlal Baitha, Bhola Baitha, Ambika Baitha, Hankari Devi, Malti Devi, Chokat God were going to hospital in injured condition by tyre cart, he came to know that Ramashraya Dharikar, Shravan Dharikar, Ramadhar Dharikar, Bagad Dharikar, Mallu Dharikar and Jai Kishun Dharikar assaulted them with lathi and farsa. The reason behind the alleged occurrence is said to be demand of fare of tyre cart. The Prasad Bari and Kanti witnessed the aforesaid occurrence besides the above-said injured. The reason behind the alleged occurrence is said to be demand of fare of tyre cart. The Prasad Bari and Kanti witnessed the aforesaid occurrence besides the above-said injured. On the basis of aforesaid fardbeyan, Ramnagar P.S. Case No. 98 of 1983 under Sections-147, 148, 323, 324, and 307 of the Indian Penal Code was registered on the same day and subsequently, formal FIR was drawn against the appellants except appellant, Dineshwear Rai for the offence under Sections, 147, 148, 323, 324, 307 of the Indian Penal Code. The formal FIR and fardbeyan were put up before Additional Chief Judicial Magistrate on 27-10-1983. Later on, Section-302 of the Indian Penal Code was also added in formal FIR on 28-10-1983. 3. The matter was investigated by the I.O. and after completion of the investigation, I.O. submitted charge sheet for the offences punishable under Sections-147, 148, 149, 323, 302, 109 of the Indian Penal Code against all the appellants. The cognizance of the offence was taken and the case was committed to the court of sessions, in usual way. 4. Appellants were put on trial and accordingly, appellants, Ramashraya Dharikar, Jaikishun Dharikar, Dineshwar Rai were jointly charged for the offences punishable under Sections-148 of the Indian Penal Code whereas; all the appellants were charged for the offences punishable under Sections-149, 302 & 109 of the Indian Penal Code and, furthermore, appellant, Ramadhar Dharikar, Shravan Dharikar, Mallu Dharikar and Bagar Dharikar were charged for the offences punishable under Sections-147 & 323 of the Indian Penal Code. The charges were read over and explained to the appellants to which, they pleaded not guilty and claimed to be tried. 5. In order to prove its case, prosecution examined altogether 10 witnesses and got exhibited signature of P.W. 1 on his statement recorded under Section-164 of the Cr.P.C. as Ext 1, the injury report of injured persons of this case as Ext 2 series and postmortem report as Ext. 3. The statements of appellants were recorded under Section-313 of the Cr.P.C. in which, they reiterated their innocence. No evidence was adduced by the appellants in support of their defence but the defence of the appellants was totally denial of the prosecution story. The learned trial court, having relied upon the testimony of prosecution witnesses, passed the impugned judgment of conviction and sentence order in the manner as stated above. 6. No evidence was adduced by the appellants in support of their defence but the defence of the appellants was totally denial of the prosecution story. The learned trial court, having relied upon the testimony of prosecution witnesses, passed the impugned judgment of conviction and sentence order in the manner as stated above. 6. Learned Senior counsel Sri Yogesh Chandra Verma, appearing in Cr. Appeal No. 234 of 2001 assailed the impugned judgment of conviction arguing that the learned trial court has not appreciated the evidences available on the record in right perspective in respect of appellant in Cr. Appeal No. 234 of 2001. Continuing his submission, he submitted that according to fardbeyan of the informant, the appellant in Cr. Appeal No. 234 of 2001 had not participated in the alleged crime. He further submitted that no doubt, according to fardbeyan of the informant, he had not witnessed the second part of the occurrence but he claimed that after first part of the occurrence, he fled away from the place of occurrence and after that, second part of the occurrence took place and while injured persons of this case were being taken to hospital, on a tyre cart, he came to know about the second part of the occurrence and he, specifically, stated the name of those persons who participated in the second part of the alleged occurrence but informant did not name the appellant in Cr. Appeal No. 234 of 2001. He further submitted that the statement of prosecution witnesses was recorded by the I.O. in course of investigation but witnesses did not disclose the name of the appellant in Cr. Appeal No. 234 of 2001. He submitted that subsequently, witnesses developed the story and implicated the appellant in Cr. Appeal No. 234 of 2001. He further submitted that the investigating officer was not examined by the prosecution in course of trial and non-examination of the I.O. caused serious prejudice to appellant in Cr. Appeal No. 234 of 2001 because paragraph-6 of the case diary reveals that the statement of deceased, Mukhlal Baitha was recorded by the I.O. in course of investigation and the deceased had not stated about the involvement of appellant in Cr. Appeal No. 234 of 2001. He also pointed out that on 29-02-2000, after prosecution evidence, when the case was fixed for defence evidence, a petition was filed on behalf of the appellant in Cr. Appeal No. 234 of 2001. He also pointed out that on 29-02-2000, after prosecution evidence, when the case was fixed for defence evidence, a petition was filed on behalf of the appellant in Cr. Appeal No. 234 of 2001 to summon the investigating officer for his examination but the learned trial court rejected the aforesaid petition vide order dated 06-07-2000 and, therefore, the appellant in Cr. Appeal No. 234 of 2001 could not get an opportunity to bring the statement of deceased recorded by the I.O. in course of ,investigation on the record and therefore, the non-examination of the I.O. is fatal to the prosecution case. He further submitted that the prosecution witnesses developed the prosecution case in course of investigation as well as in trial and made contradictory statements and, therefore, prosecution could not succeed to prove the place of occurrence as well as manner of occurrence. Learned senior counsel Sri Verma relied upon a decision reported in 1987 PLJR 1166 in which, Division Bench of this court have held that even though non-examination of I.O. is not necessarily fatal to a prosecution case, it will not be proper to sustain conviction where prejudice appears to have been caused to the defence. 7. He cited another decision reported in 1998 Cr.L.J. 2059 (SC) in which, it has been held by the Apex Court of this country that if in course of trial, material improvements made in evidence of witnesses regarding role played by accused, the conviction of accused cannot sustain. 8. Another decision cited on behalf of the appellant in Cr. Appeal No. 234 of 2001 is 2001(2) PLJR (SC) page 1 in which, it has been held that injured witness has not mentioned in his statement under Section-161 Cr. P.C. that accused came alongwith two others, a material omission and fatal for the prosecution case and furthermore, learned counsel for the appellant in Cr. Appeal No. 234 of 2001 cited a decision reported in AIR 1975 (SC) 1026 in which, it has been held by the Apex court that omissions of important facts, affecting the probabilities of the case are relevant under Section-11 of the Evidence Act in judging the veracity of the prosecution case. 9. Learned Counsel Sri Arvind Kumar Sharma appearing for the appellants in Cr. 9. Learned Counsel Sri Arvind Kumar Sharma appearing for the appellants in Cr. Appeal No. 309 of 2001 and learned counsel Sri Brajendra Nath Pandey appearing as amicus curiae for the appellants in Cr. Appeal No. 396 of 2001 also assailed the impugned judgment of conviction and sentence order arguing that the prosecution could not succeed to prove the place of occurrence and no specific allegation of assault was attributed against the appellants in the above said two criminal appeals. They further submitted that the deceased, Mukhlal Baitha sustained only one injury on his head and, therefore, it cannot be said that all the appellants participated in the alleged crime. 10. On the other hand, learned Additional Public Prosecutor supported the impugned judgment of conviction and sentence order arguing that injured persons of this case have supported the story of assault and the statement of injured witnesses is corroborated by the injury reports as well as postmortem report and, therefore, there is nothing on the record to warrant the interference of .this court into the impugned judgment of conviction and sentence order. 11. As I have already stated that, altogether, 10 prosecution witnesses were examined but admittedly, the informant, Mangar Baitha S/o Saral Baitha was not examined by the prosecution, as he had already died before recording his deposition in course of trial. The fardbeyan of informant Mangar Baitha has not been legally proved by the prosecution but signature of P.W. 1, Gauri Shankar Baitha on fardbeyan has been proved as Ext. A and P.W. 1 Gauri Shankar Baitha has admitted at paragraph-8 of his cross-examination that when the statement of informant, Mangar Baitha was recorded by the police at hospital, he was present there and the fardbeyan of the informant was read over to him and having found correct, the informant put his thumb impression on the fardbeyan. This witness at paragraph-17 of his cross-examination identified his signature on fardbeyan as Ext. A. He, however, admitted at the same paragraph that when the statement of informant, Mangar Baitha was recorded, the mental condition of this witness was proper and fit. Therefore, it is apparent from the aforesaid statement of this witness that statement of informant, Mangar Baitha was recorded in his presence and the aforesaid statement of informant was read over to informant Mangar Baitha in his presence. Therefore, it is apparent from the aforesaid statement of this witness that statement of informant, Mangar Baitha was recorded in his presence and the aforesaid statement of informant was read over to informant Mangar Baitha in his presence. Although the fardbeyan of informant Mangar Baitha has not been proved legally by the prosecution but admittedly, on the basis of fardbeyan of informant Mangar Baitha, the present case as Ramnagar P.S. Case No. 98 of 1983 was registered. The perusal of fardbeyan of informant, Mangar Baitha shows that he stated in his fardbeyan that on 25-10-1983, he demanded his wages from appellant, Ramashraya Dharikar near his Gotha and on account of the aforesaid demand, scuffle took place between them and appellant, Ramadhar Dharikar also came there and assaulted him with lathi. The fardbeyan of the informant Mangar Baitha further shows that after the aforesaid scuffle and assault, he fled away from there and reached outside the village. Furthermore, the fardbeyan of informant Mangar Baitha shows that while the injured persons of this case were being taken to hospital by tyre cart, he came to know that the injured persons were assaulted by the appellants except appellant, Dineshwar Rai. The above-said fardbeyan of the informant Mangar Baitha shows that occurrence took place in two phases. In first phase, appellants, Ramashraya Dharikar and Ramadhar Dharikar participated in the occurrence whereas; in second phase of the occurrence, rest appellants except appellant, Dineshwar Rai participated. Therefore, it is apparent from the aforesaid fact that initially, when the fardbeyan of the informant was recorded, no role was attributed towards appellant, Dineshwar Rai but when P.W. 1, Gauri Shankar Mishra deposed in trial, he stated that while he was sitting near Gotha of informant Mangar Baitha, the informant demanded his dues from Ramashraya Dharikar but Ramashraya Dharikar and Sharwan Dharikar started assaulting the informant Mangar Baitha who fled away towards Sareh and after that, Ramashraya Dharikar brought a farsa from his home and appellants, Shravan Dharikar armed with Bhala, Ramadhar Dharikar armed with lathi, Jai Kishun armed with lathi, Lakhan Dharikar armed with lathi and Bagar Armed with lathi came there and, furthermore, appellant, Dineshwar Rai armed with double barrel gun also came there and all the aforesaid persons started assaulting Bhola Baitha, Ambika Baitha, Jag Baitha and Halkari Baitha. This witness, specifically, stated that appellant, Ramashraya Dharikar assaulted Halkari Devi with Farsa whereas; rest persons assaulted others with lathi and appellant, Dineshwar Rai gave back portion of gun on the head of Mukhlal Baitha as a result of which, Mukhlal Baitha sustained injury. He further deposed that after the aforesaid occurrence, the injured persons were brought to hospital where Mukhlal Baitha died in course of his treatment. The statement of this witness was recorded under Section-164 of the Cr.P.C. in which, he stated almost the similar story and also stated about the participation of appellant, Dineshwar Rai in the alleged crime. Admittedly, the fardbeyan of informant Mangar Baitha does not state about the involvement of appellant, Dineshwar Rai in the alleged occurrence but P.W. 1 stated that appellant, Dineshwar Rai also participated in the alleged crime. No doubt, the informant Mangar Baitha had not seen the second phase of occurrence, but admittedly, the informant Mangar Baitha came to know about the name of assailants just after second phase of alleged occurrence while the injured persons of this case were being taken to hospital and, therefore, had the appellant, Dineshwar Rai participated in the alleged crime, P.W. 1 would have certainly disclosed the name of appellant, Dineshwar Rai to informant Mangar Baitha because admittedly, the fardbeyan of informant Mangar Baitha was recorded in presence of P.W. 1. Furthermore, it is apparent that the name of appellant, Dineshwar Rai came for the first time when the statement of witnesses was recorded under Section-164 of the Cr.P.C. P.W. 1 has admitted that at the time of alleged occurrence, he was working as teacher, so, it cannot be said that being illiterate person, he did not disclose the name of appellant, Dineshwar Rai before informant Mangar Baitha at the time of recording of fardbeyan. Furthermore, P.W. 1 admitted at paragraph-18 of his cross-examination that the deceased, Mukhlal Baitha had given his statement before the police. Paragraph-6 of the case diary contains the statement of deceased, Mukhlal Baitha and the aforesaid paragraph of the case diary reveals that the deceased, Mukhlal Baitha had also not stated the name of appellant, Dineshwar Rai. Furthermore, P.W. 1 admitted at paragraph-18 of his cross-examination that the deceased, Mukhlal Baitha had given his statement before the police. Paragraph-6 of the case diary contains the statement of deceased, Mukhlal Baitha and the aforesaid paragraph of the case diary reveals that the deceased, Mukhlal Baitha had also not stated the name of appellant, Dineshwar Rai. Admittedly, the I. O. was not examined by the prosecution and defence filed a petition on 29-02-2000 to summon the I.O. but the prayer of defence was rejected by the trial court vide order dated 06-07-2000 and, therefore, defence could not get opportunity to bring the statement of deceased, Mukhlal Baitha on record and, so, I am of the opinion that non-examination of the I.O. in respect of appellant, Dineshwar Rai is fatal to the prosecution case. No doubt, non-examination of the I.O. is not always fatal to the prosecution case but in the present case, a serious prejudice has been caused to appellant, Dineshwar Rai due to non-examination of the I.O. because as stated above, the appellant, Dineshwar Rai could not get an opportunity to bring the statement of deceased recorded by the I.O. in course of investigation on record. 12. P.W. 2 Bhola Baitha is the son of deceased, Mukhlal Baitha. This witness stated that on the date of alleged occurrence, he was sitting alongwith his father, Mukhlal Baitha at his Gotha. He further stated that his father demanded wages from Ramashraya Dharikar but Ramashraya Dharikar started abusing and called his family members and after that, appellants came there and appellant, Dineshwar Rai ordered and after that, appellant, Ramashraya Dharikar gave Farsa blow to his father, Mukhlal Baitha causing injury on the head of his father and after that, appellant, Dineshwar Rai gave butt of gun to his father. According to this witness, appellant, Ramadhar Dharikar assaulted the deceased with Farsa causing injury on his head and appellant, Dineshwar Rai, too, assaulted the deceased with butt of gun. This witness has not stated as to on which part of his body, the deceased, sustained injury by the butt of gun given by appellant, Dineshwar Rai. According to this witness, appellant, Ramadhar Dharikar assaulted the deceased with Farsa causing injury on his head and appellant, Dineshwar Rai, too, assaulted the deceased with butt of gun. This witness has not stated as to on which part of his body, the deceased, sustained injury by the butt of gun given by appellant, Dineshwar Rai. Furthermore, this witness stated that two persons assaulted deceased, Mukhlal Baitha whereas; almost all the prosecution witnesses stated that appellant, Dineshwar Rai gave butt of gun on the head of deceased, Mukhlal Baitha but P.W. 10 stated that he did postmortem of deceased, Mukhlal Baitha and found only one injury on his head. This witness stated that he found one swelling 2”x2” on the left side temporal region about 2” above the Pinna and on dissection, he found bone depressed and fractured and there was clot and blood between bone and face. The postmortem report of deceased, Mukhlal Baitha is Ext 3. From perusal of statement of prosecution witness No. 10 and Ext 3 it is apparent that only one injury was found on the person of the deceased, Mukhlal Baitha whereas; P.W. 2 stated that two persons assaulted the deceased, Mukhlal Baitha. According to P.W. 2, the injury found on the head of deceased, Mukhlal Baitha was caused by appellant Ramashraya Dharikar whereas; rest persecution witnesses stated that the injuryu found on the head of the deceased was caused by appellant, Dineshwar Rai and, therefore, it is not clear as to who had given fatal blow to deceased, Mukhlal Baitha because the very presence of appellant, Dineshwar Rai at the place of occurrence becomes doubtful due to non-finding of his name in the first information report as well as in the statement of deceased which had been recorded by the I.O. in course of investigation and as I have already stated that serious prejudice has been caused to appellant, Dineshwar Rai due to non-examination of the I.O. because he could not get an opportunity to bring the above-said contradictions on record in course of trial. So far appellant, Ramashraya Dharikar is concerned, P.W. 2 stated that he had given Farsa blow on the head of deceased but no Farsa injury was found on the head of deceased. 13. So far appellant, Ramashraya Dharikar is concerned, P.W. 2 stated that he had given Farsa blow on the head of deceased but no Farsa injury was found on the head of deceased. 13. P.W. 1 at paragraph-8 of his cross-examination admitted this fact that at the time of recording his statement, the I.O. had asked him as to why he had not made his statement before the police at the time of recording fardbeyan of the informant and on the aforesaid question of the police, he gave satisfactory answer to investigating officer. He further admitted at the same paragraph that next day of the alleged occurrence, his statement was recorded. Therefore, it is apparent that this witness did not give his statement before the I.O. when the fardbeyan of the informant Mangar Baitha was recorded though this witness was present before the police at the time of recording the fardbeyan of the informant and his mental condition was also well at the time of recording the fardbeyan of the informant. P.W. 2 at paragraph-2 of his cross-examination, specifically, stated that he had named the appellant, Dineshwar Rai before police when his statement was recorded. P.W. 5 stated that he had made statement before the police that appellant, Dineshwar Rai having armed with gun alongwith his associates, chased Bhola Baitha and Mangar Ram. P.W. 6 also stated that he had made statement before the police that appellant, Dineshwar Rai had assaulted the deceased, Mukhlal Baitha. Therefore, it is apparent that attention of almost all the prosecution witnesses was drawn towards their previous statements and almost all the prosecution witnesses claimed that they had named the appellant, Dineshwar Rai before the police. The learned counsel appearing for appellant, Dineshwar Rai submitted that the above-said prosecution witnesses had not named the appellant, Dineshwar Rai when their statement was recorded under Section-161 of the Cr.P.C. and due to non-examination of the investigation officer; the appellant became prejudiced because he could not get an opportunity to bring the aforesaid contradictions on record. I do agree with the aforesaid submission and in my opinion also, non-examination of the I.O. has caused serious prejudice to appellant, Dineshwar Rai. 14. P.W. 3 Ambika Baitha stated that at the time of alleged occurrence, he was at his home and Mangar Baitha as well as Bhola Baitha had gone to demand wages from appellant, Dineshwar Rai. I do agree with the aforesaid submission and in my opinion also, non-examination of the I.O. has caused serious prejudice to appellant, Dineshwar Rai. 14. P.W. 3 Ambika Baitha stated that at the time of alleged occurrence, he was at his home and Mangar Baitha as well as Bhola Baitha had gone to demand wages from appellant, Dineshwar Rai. This witness stated that he saw that appellants, Ramasharaya Dharikar and Dineshwar Rai were chasing Bhola Baitha and Mangar Ram. He further stated that deceased, Mukhlal Baitha came out of the house and after that, appellant, Dineshwar Rai started abusing him which was protested by the deceased, Mukhlal Baitha and after that, Ramashraya Dharikar caught hold the waist of deceased, Mukhlal Baitha and appellant, Dineshwar Rai gave butt of gun on his head and when Halkari Devi came out of the house, Ramashraya Dharikar assaulted her with Farsa and Ramadhar Dharikar and Sharwan Dharikar chased and assaulted Bhola Baitha whereas; Bagar, Mallu and Jai Kishun started assaulting Mangar Baitha with lathi. This witness has, nowhere, stated in his examination-in-chief that he had also sustained injury in the aforesaid occurrence and admittedly, at paragraph-11 of his cross-examination, he stated that he had not sustained any injury but Ext 2/A reveals that this witness also sustained injury and he was examined by the doctor on 25-10-1987 and P.W. 9 stated in his deposition that he had examined the injured Ambika Baitha. 15. P.W. 2 Bhola Baitha stated that he had sustained injury in the aforesaid occurrence and the deposition of P.W. 9 as well as Ext 2 series corroborate the deposition of the aforesaid witnesses. P.W. 6 Jag Baitha stated that he had sustained injury in the aforesaid occurrence and his statement is also corroborated by the deposition of P.W. 9 and Ext 2 series. Similarly, P.Ws. 7 & 8 stated that they had sustained injury in the alleged occurrence and the statement of aforesaid prosecution witnesses is corroborated by the statement of P.W. 9 who had examined the injured after the alleged occurrence, as well as Ext 2 series (the injury reports). 16. Similarly, P.Ws. 7 & 8 stated that they had sustained injury in the alleged occurrence and the statement of aforesaid prosecution witnesses is corroborated by the statement of P.W. 9 who had examined the injured after the alleged occurrence, as well as Ext 2 series (the injury reports). 16. On perusal of materials available on the record, I find that the deceased and injured persons of this case sustained injury in the alleged occurrence and furthermore, I find that all the prosecution witnesses except P.W. 2 stated that it was appellant, Dineshwar Rai who gave fatal blow to deceased, Mukhlal Baitha but the presence of appellant, Dineshwar Rai on the place of occurrence becomes doubtful due to non-examination of the I.O. Furthermore, according to prosecution witnesses itself, except appellants, Ramashraya Dharikar and Dineshwar Rai, none of the appellants had assaulted the deceased, Mukhlal Baitha and admittedly, only one injury has been found on the head of deceased, Mukhlal Baitha but prosecution could not succeed to establish this fact as to who had given the aforesaid fatal injury to deceased, Mukhlal Baitha and, therefore, in the aforesaid circumstances, I am of the opinion that all the appellants, are entitled to get benefit of doubt and they cannot be convicted for the offence punishable under Section-304(I) of the Indian Penal Code. 17. So far as conviction of the appellants under Sections-323 and 148 of the Indian Penal Code are concerned, the prosecution witnesses including the injured witnesses, specifically, stated that appellants assaulted the injured persons of this case and the story of assault is well proved by the testimony of prosecution witnesses as well as injury reports. Although the charge under Section-323 of the Indian Penal Code was only framed against appellants, Ramadhar Dharikar, Sharwan Dharikar, Mallu Dharikar and Bagar Dharikar for causing hurt to informant and deceased and no charge against the appellants was framed for causing hurt to injured persons of this case but learned trial court put a specific question regarding the injury and assault of the injured persons before the appellants while recording their statements under Section-313 of the Cr,P.C. and, therefore, in my view, even if the charge under Section-323 of the Indian Penal Code was defective, then also, the appellants except appellant, Dineshwar Rai were rightly convicted under Section-323 of the Indian Penal Code. So far as section-148 of the Indian Penal Code is concerned, only appellants, Ramashray Dharikar, Jai Kishun Dharikar and Dineshwar Rai had been charged for the aforesaid offence and as I have already discussed that the participation of the appellant, Dineshwar Rai in the alleged occurrence was doubtful and, therefore, in absence of a specific charge except the appellants, Ramashray Dharikar and Jai Kishun Dharikar, rest of the appellants could not have been convicted for the offence punishable under Section-148 of the Indian Penal Code and, conviction of the appellants except appellants, Ramashray Dharikar and Jai Kishun Dharikar for the offence under Section-148 of the Indian Penal Code is set aside. 18. Admittedly, alleged occurrence took place in the year, 1983 on account of petty dispute of demand of wages and prosecution could not succeed to prove this fact as to who had given fatal blow to deceased. The appellants have already suffered a lot by facing the trauma of this case since the year, 1983 and, therefore, to meet the ends of justice, it would be proper to sentence the appellants except appellant, Dineshwar Rai to the period already undergone by them in course of trial instead of sending them to serve out their sentences. 19. On the basis of aforesaid discussions, Cr. Appeal No. 234 of 2001 is allowed and, accordingly, impugned judgment of conviction dated 12-07-2001 and sentence order dated 16-07-2001 passed by learned Sixth Additional Sessions Judge, West Champaran in Sessions Trial No. 91 of 1985 is, hereby, set aside in respect of appellant, Dineshwar Rai only. Appellant Dineshwar Rai is on bail. He is discharged from the liabilities of his bail bonds. 20. So far as Cr. Appeal Nos. 309 of 2001 & 396 of 2001 are concerned, both the aforesaid Cr. Appeals are partly allowed with modification in impugned judgment of conviction and sentence order to this extent that the conviction of all the appellants of Cr. Appeal Nos. 309 of 2001 and 396 of 2001 under Section-304(I) of the Indian Penal Code is set aside and, conviction of appellant No. 1 in Cr. Appeal No. 309 of 2001 and appellant No. 3 in Cr. Appeal Nos. 309 of 2001 and 396 of 2001 under Section-304(I) of the Indian Penal Code is set aside and, conviction of appellant No. 1 in Cr. Appeal No. 309 of 2001 and appellant No. 3 in Cr. Appeal No. 396 of 2001 for the offence under Section-148 of the Indian Penal Code is confirmed whereas; the conviction of all the appellants under Section-323 of the Indian Penal Code is also confirmed and similarly, the conviction under Section-148 of the Indian Penal Code of all the appellants except appellant No. 1 of Cr. Appeal No. 309 of 2001 and appellant No. 3 of Cr. Appeal No. 396 of 2001 is set aside and instead of sending the appellants to jail to serve out their sentences, the appellants are sentenced to the period already undergone by them in course of trial.