C. A. V. JUDGMENT AMARESH KUMAR LAL 1. The State of Bihar has preferred the Government Appeal (D.B.) No. 33 of 1991 against the judgment and order dated 31st May 1991 passed by the learned 4th Additional Sessions Judge, Munger in Sessions Case No. 367 of 1989 by which accused-respondents have been acquitted for the charges under Sections 302/34, 307 and 436 of the Indian Penal Code. Cr. Revision No. 627 of 1991 has been filed by the informant (P.W. 5) against the aforesaid judgment by which the opposite parties have been acquitted. Since both the cases arise out of the same judgment, they have been heard together and are being disposed of by this common judgment. 2. The prosecution case, in brief, is that on 30.12.1988 at about 5.30 p.m., the informant Md. Azim (P.W. 5) was returning to his village Malia after burying his Bhagina with Md Ali Hussain (P.W. 2), Md. Ahmad (P.W. 1), Md. Abbas (P.W. 4) and Abdul Majid (deceased) and came near Madarsa of the village and saw that his co-villagers Dukhi Yadav, Raj Kumar Yadav armed with spear and lathi were uprooting the khuta and destroying fencing of the Madarsa. When the prosecution parties protested to uproot the bamboo fencing, the accused Dukhi Yadav told that he would construct a house on that land. The informant and others asked him not to uproot Khuta, and fencing of Madarsa and the dispute would be decided in the Court. Thereafter, Dukhi Yadav instigated the co-accused to assault the prosecution party, thereafter, respondent- opposite party Baldeo Yadav (respondent no. 4), Kamo Yadav (respondent no. 6), Jago Yadav (respondent no. 5), Ajoy Yadav (respondent no. 7), Hari Yadav (respondent no. 8), Ramchandra Yadav (respondent no. 1) and Dasrath Yadav (respondent no. 9) armed with lathi and bhala came there and assaulted the informant and his fellowmen. It has been further alleged that Dukhi Yadav assaulted Abdul Majid (deceased) with spear which caused injury in his waist and he fell down. Thereafter, other accused assaulted him with lathi and smashed his head and he became senseless. They also assaulted the informant (P.W. 5), Md. Ahmad (P.W. 1), Md. Abbas (P.W. 4), Md. Ali Hussain (P.W. 2) causing them injury. On raising alarm, several co-villagers came there and witnessed the occurrence. The victim with the aid of co-villagers carried Abdul Majid (deceased) in senseless condition and injured Md. They also assaulted the informant (P.W. 5), Md. Ahmad (P.W. 1), Md. Abbas (P.W. 4), Md. Ali Hussain (P.W. 2) causing them injury. On raising alarm, several co-villagers came there and witnessed the occurrence. The victim with the aid of co-villagers carried Abdul Majid (deceased) in senseless condition and injured Md. Ahmad (P.W. 1) on a cot to the Sub-divisional Hospital Lakhisarai for treatment. It has further been alleged that at the time of departure, respondent no. 1 Ram Chandra Yadav set fire in the Madarsa. The fard beyan (Ext. 2) of P.W. 5 was recorded by ASI, S. K. Singh of Lakhisarai Police Station on 30.12.1988 at 9.15 p.m. in the Sub Divisional Hospital, Lakhisarai. On the basis of Fardbeyan formal FIR (Ext. 3) was instituted. After investigation charge-sheet was submitted, cognizance was taken and the case was committed to the Court of Sessions. Charge against respondent no. 1 was framed for the offence punishable under Section 436 IPC. All the accused were charged for the offence punishable under Sections 307 and 302/34 IPC to which they denied and claimed to be tried. 3. The defence of the accused-respondents is complete denial of the charge. Their further defence is that they have been falsely implicated in this case due to enmity and co-accused Raj Kumar Yadav had instituted Lakhisarai P. S. Case No. 371 of 1988 dated 30.12.1988 at about 5.30 P.M. against Hussain Mian (P.W. 2), Daro Mian (P.W. 3), Rajak Mian, Hul Mian, Manu Mian, Sole Mian, Satar Mian, Akar Mian, all residents of village Malia, P.S. Lakhisarai (Chanan), District- Munger for the offence punishable under Sections 147, 148, 324, 323 of the Indian Penal Code was lodged by Raj Kumar Yadav which is Ext. C. 4. After trial the learned Trial Court has held that the prosecution has not been able to establish the genesis, manner and place of occurrence. The witnesses examined on behalf of the prosecution are interested and partisan and no independent witnesse has been examined. 5. Learned counsel for the State has submitted that village Malia is at a distance of 17 kilometres from Lakhisarai vide FIR Ext. 2 . All the five injured Md. Ahmad (P.W. 1), Md. Ali Hussain (P.W. 2), Md. Abbas (P.W. 4) and the informant Md. Azim (P.W. 5) had succumbed to their injury. 5. Learned counsel for the State has submitted that village Malia is at a distance of 17 kilometres from Lakhisarai vide FIR Ext. 2 . All the five injured Md. Ahmad (P.W. 1), Md. Ali Hussain (P.W. 2), Md. Abbas (P.W. 4) and the informant Md. Azim (P.W. 5) had succumbed to their injury. The injured were admitted in Sub-divisional Hospital, Lakhisarai immediately at about 7 p.m. and Abdul Majid (deceased) was examined by doctor Ramchandra Prasad Singh and other injured were also examined by the said doctor (P.W. 9) at about 8.45 pm. The police recorded fard beyan of Md. Azim (P.W. 5) at about 9.15 pm. Md. Abdul Mazid succumbed to his injury in PMCH, Patna on 7.1.1989. After investigation and supervision of the case, charge-sheet was submitted. It has also been submitted that respondent no. 3, Raj Kumar Yadav gave counter version of the occurrence. The police submitted final form. Order-sheet of SDJM, Lakhisarai is Ext. 9 which proved that final report was accepted. Hence the counter version of the case fails. 6. It is submitted on behalf of the appellant that it is admitted position that the occurrence has taken place between both the parties. The prosecution examined as many as 14 witnesses out of them four are injured and they are eye witnesses. P. W. 1 Md. Ahmad, P.W. 2 Md. Ali Hussain, P.W. 4 Md. Abbas and P.W. 5 Md. Azim, the informant and P.W. 6 Rashidan Khatoon, wife of Mohit Mian are also the eye witnesses. P. W. 3 Dharo Mian, P.W. 7 Rasidan Khatoon and P.W. 8 Amna Khatoon have been tendered. P. W. 9 Dr. Ram Chandra Singh has examined the injured and P.W. 13 Dr. Shambhu Saran has held post-mortem examination. P. W. 10 K. N. Singh and P.W. 11 Sri Hem Lal Mehra are the investigating Officers. P.W. 12 Sachidanand Yadav is a formal witness. P.W. 14 Md. Babloo is an inquest witness. There is sufficient material on the record to prove the charges under Sections 302/34, 307 and 436 IPC against the respondents. But the learned Trial Judge has illegally acquitted them and has caused grave miscarriage of justice. 7. Learned counsel for respondents has submitted that the prosecution witnesses are interested witnesses. No independent witness has been examined. There is sufficient material on the record to prove the charges under Sections 302/34, 307 and 436 IPC against the respondents. But the learned Trial Judge has illegally acquitted them and has caused grave miscarriage of justice. 7. Learned counsel for respondents has submitted that the prosecution witnesses are interested witnesses. No independent witness has been examined. There is contradictory statement in the deposition of witnesses, as such their evidence is not convincing and the learned trial Court has rightly not relied upon their evidence and has acquitted the respondents. 8. During the pendency of the appeal, respondents Dukhi Yadav, Baldeo Yadav and Hari Yadav died as such the Government Appeal as well as Criminal Revision against them stand abated vide order dated 24.7.2014. 9. Now let us see the deposition of the prosecution witnesses to examine as to whether the prosecution has been able to substantiate its case beyond reasonable doubt or not? 10. P. W. 1 Md. Ahmad is eye witness to the occurrence. He has stated that after cremation he and other witnesses were returning towards their house. When they reached near Madarsa, he saw that respondents Baldeo, Rajkumar Yadav, Dukhi Yadav, Kameshwar Yadav, and Dasrath Yadav were uprooting Khuta and fencing from Madarsa land. Thereafter, Dukhi Yadav instigated the other accused to assault them. Dukhi Yadav assaulted Abdul Majid (deceased) with spear which caused injury in his abdomen. Abdul Mazid fell down. Thereafter, all the accused Raj Kumar, Ramchandra Yadav, Kameshwar Yadav, Dasrath Yadav, Ajay Yadav, Jago Yadav, Baldeo Yadav assaulted him with lathi. They smashed head of Abdul Mazid. They also assaulted upon other parts of his body. Thereafter, Rajkumar Yadav, Kameshwar Yadav, Dasrath Yadav, Ram Chandra Yadav assaulted him (P.W. 1) on his head. He fell down and became senseless. They also assaulted Md. Ali Hussain (P.W. 2) Md. Abbas (P.W. 4), Md. Azim (P.W. 5). He has further stated that his statement was recorded in Lakhisarai Hospital and he remained under treatment for about 21 days. He has further stated that after assault accused Ramchandra Yadav set fire in Madarsa. He has also stated that children go to Madarsa to study. Namaj is also held there and Taziya is also organized there. He has stated that due to the injuries, Md. Abdul Mazid died. He has identified all the accused-respondents. He has also been cross-examined. He has further stated that after assault accused Ramchandra Yadav set fire in Madarsa. He has also stated that children go to Madarsa to study. Namaj is also held there and Taziya is also organized there. He has stated that due to the injuries, Md. Abdul Mazid died. He has identified all the accused-respondents. He has also been cross-examined. During cross-examination, he has stated that he and others had gone to graveyard to bury the dead body of Gonga aged about 15-16 years. Md. Azim (P.W. 5), Md. Abbas (P.W. 4), Md. Ali Hussain (P.W. 2) and Md. Abdul Mazid (deceased) were also there. In paragraph 14, he has stated that he does not know as to whether the accused Ram Kumar Yadav has lodged a case against Nazam, the son of Azim, Bholi son of Ali Hussain and others. He has also further stated that Baldeo and his two sons RajKumar and Dukhi are accused in this case. He has also stated that prior to the occurrence of assault, two Khutas had already been uprooted and third was being uprooted which was protested. He has also stated that blood was oozing out from the injury of all the injured. Two out of all the injured were brutally assaulted. All the nine accused assaulted Abdul Mazid. He has been cross-examined at great length. There is some addition in his statement which does not go to the root of the case. His evidence appears to be convincing. 11. P. W. 2 Md. Ali Hussain is also an injured. He has also supported the prosecution case as P.W. 1. His evidence appears to be convincing. In paragraph 9 he has stated that he does not know as to whether the accused Raj Kumar Yadav has lodged a case against his son and the son of Md. Azim. He has heard that Raj Kumar went to the police station but in the way he was arrested. It appears that there is some addition in his evidence. In paragraph 13, he has stated that adjacent to Imambara there is Madarsa. There is a thatched roof near Madarsa. Madarsa has been constructed by private persons not by government. No Maulavi has been appointed by the government. Maulavi is private. At the time of occurrence, Maulavi was on leave for 20 days. Maulavi was given food by private persons by turn. There is a thatched roof near Madarsa. Madarsa has been constructed by private persons not by government. No Maulavi has been appointed by the government. Maulavi is private. At the time of occurrence, Maulavi was on leave for 20 days. Maulavi was given food by private persons by turn. He has also stated that his treatment was made at Lakhisarai and he remained there for about two hours. This witness has been recalled and has been further cross-examined in which he has stated that prior to this occurrence he has lodged a case against Mahendra Yadav, Bisheshwar Yadav, Ramchandra Yadav (respondent), Kapildeo Yadav, Ram Balak Yadav all resident of village Nagardar. In that case he has stated that he was preparing field for plantation which was uprooted by them. This cross-examination does not help the accused. 12. P. W. 4 Md. Abbas has stated that when he and others came to Madarsa and saw that Dukhi Yadav and Raj Kumar Yadav were destroying the fencing of Madarsa land which was protested by the prosecution party, but the accused Dukhi Yadav told that he would construct a house there and did not stop. Dukhi Yadav assaulted Abdul Mazid with spear, Abdul Majid fell down. On the instigation of Dukhi Yadav all the accused assaulted him with lathi. Ajay Yadav assaulted with back portion of the spear. Abdul Majid became senseless. Hari Yadav, Ram Chandra Yadav and Dasrath Yadav assaulted Ali Hussain, Ajim and also to him. He also got injury on his head, shoulder and Raj Kumar Yadav also assaulted him. After the occurrence of assault Ram Chandra Yadav set fire in Madarsa. Thereafter, all the accused fled away. Abdul Mazid and Ahmad were carried to the hospital on cot. All the injured were given treatment. The doctor told that Abdul Mazid is seriously injured and thereafter Abdul Mazid was taken to Patna for treatment. Even after treatment Abdul Mazid died at Patna after seven days. He has also identified all the accused. He has stated that all the accused assaulted the injured with intention to kill them. He has also been cross-examined. In his cross-examination he has stated that Dukhi Yadav instigated the other accused to assault. Thereafter, all the victims were surrounded by them and they were not assaulted at the same time. First of all, Abdul Majid was assaulted and thereafter several victims were assaulted by the accused. He has also been cross-examined. In his cross-examination he has stated that Dukhi Yadav instigated the other accused to assault. Thereafter, all the victims were surrounded by them and they were not assaulted at the same time. First of all, Abdul Majid was assaulted and thereafter several victims were assaulted by the accused. There is no material contradiction in his statement. His evidence appears to be convincing. 13. P. W. 5 Md. Azim has also supported the prosecution case. He has stated that when he and others came to Madarsa he saw Dukhi Yadav and Raj Kumar Yadav were destroying and uprooting the fencing of Madarsa. They were prohibited but they did not abide by them and they assaulted them. Abdul Mazid was assaulted by spear causing injury in his waist (kulha). He has also been cross-examined. There is some addition in his evidence which does not go to the root of the case and contradiction and addition are not vital, as such his evidence is not fit to be discarded. 14. P. W. 6 Rashidan Khatoon has stated that after hearing the noise she went near the Madarsa. Dukhi Yadav instigated the other accused to assault. Dukhi Yadav assaulted Abdul Mazid with spear which caused him injury in his waist. Other accused also took part in the occurrence. After the occurrence of assault, Ram Chandra set fire in Madarsa. In her cross-examination, she has stated that she does not know as to whether for the occurrence Raj Kumar has also lodged a case against Suro and Sartar whose house is adjacent to Madarsa at a distance of 5-6 cubits (about 9 feet). Dukhi Yadav has instigated the other accused to assault. She has stated that she did not state before the Investigating Officer that she saw Ajay Yadav and other accused coming there with lathi. She has also not stated before the Investigating Officer that Ajay Yadav assaulted Majid with the back portion of spear. In paragraph 16, she has stated that when she tried to rescue the victim, she also received a lathi assault in her hand. He had gone to the doctor in the hospital. She does not remember as to whether Investigating Officer has asked him to go to the hospital and she refused. In paragraph 10, she has stated that her statement was taken two days after the occurrence. 15. P. W. 9 Dr. He had gone to the doctor in the hospital. She does not remember as to whether Investigating Officer has asked him to go to the hospital and she refused. In paragraph 10, she has stated that her statement was taken two days after the occurrence. 15. P. W. 9 Dr. Ram Chandra Singh was posted at Sub-divisional Hospital, Lakhisarai as Deputy Superintendent of Police and on 30.12.1988 he received the requisition from Shashi Kant Singh, ASI, Lakhisarai. He examined Md. Azim (P.W. 5) on 30.12.1988 at 8.15 P.M. and found following injuries on his person:- (i) Lacerated wound 4.5 C.m. x 1 c.m. x skin deep on back of left index finger 3.5 c.m. above tip of the finger. It was bleeding. The injury was simple in nature caused by hard and blunt substance. Age of injury about three hours. He has proved the injury report (Ext. 1). On the same day at 7.15 p.m. he examined Abdul Majid (deceased) and found following injury on his person:- (i) lacerated wound 7 c.m. x 0.5 c.m. x scalp deep on left side of head. 5 C.m. from the middle and 9 c.m. from eye brow it was bleeding. The patient was unconscious and gasping pupils were dilated and fixed. (ii) Lacerated wound 3 c.m. x 2 c.m. x skin deep on head on mid line 13 c.m. from forehead with swelling. It was bleeding. (iii) Incised wound 1 c.m. x 0.5 c.m. x 1 c.m. deep in left joint 1.5 c.m. below and medial to anterior superior iliac spine. It was bleeding profusely. (iv) Abrasion 2 c.m. x 1 c .m. on left side of front of head with swelling. In the opinion of doctor, injury no. i & ii was grievous and dangerous to life. Injury No. iii and iv were simple. Injury Nos. i , ii, iv were possible by hard and blunt substance and injury No. iii by a sharp weapon. The age of injury was two hours back. His injury report has been marked Ext. 1/1. On the same day at about 8.50 pm. he examined Md. Abbas (P.W. 4) and found the following injury on his person. (i) Lacerated wound 1 c.m. x 1.5 C.M. x skin deep on right side of back of head. (ii) Bleb formation on left index finger on its front 1 c.m. above its tip. 1/1. On the same day at about 8.50 pm. he examined Md. Abbas (P.W. 4) and found the following injury on his person. (i) Lacerated wound 1 c.m. x 1.5 C.M. x skin deep on right side of back of head. (ii) Bleb formation on left index finger on its front 1 c.m. above its tip. (iii) Black Colouration on front of tip of right ring finger. (iv) Abrasion 2 c.m. x 1 c.m. on left shoulder. All the injuries were simple caused by hard and blunt substance. His injury report has been marked Ext. ½. On the same day, at about 8.30 pm. he also examined Ali Hussain (P.W. 2) and found the following injury on his person:- Abrasion 2 c.m. x 1 c.m. on back of left hand 5.5. c.m. above tip of the left little finger. It was bleeding. Whole of the left hand was swollen. The fifth left metacarpal bone was fractured. Injury was grievous caused by hard and blunt substance. His injury report has been marked as Ext. 1/3. On the same day at about 8.40 p.m. he also examined Md. Ahmad (P.W. 1) and found the following injury:- (i) Lacerated wound 4.5 c.m. x 1 c.m. x scalp deep on left side of head. 5 c.m. from midline and 11 c.m. from eye brow. It was bleeding. (ii) lacerated wound 3.5. cm. x 0.5 c.m. x scalp deep right side of head 6 c.m. from midline and 9 c.m. from eye brow. (iii) Lacerated wound 2 c.m. x 0.5 cm. x scalp deep on left side of front of head 1 c.m. from midline and 2.5 cm above eye brow. Both eye lids were swollen. (iv) Lacerated wound 1 cm. x 0.3 cm. x skin deep on back of left middle finger with swelling of whole of left hand. 1st Phalange of this finger was fractured. (v) Lacerated wound 2.5. cm. x 2.5. c.m. x scalp deep on head on midline 6 c.m. above forehead. (vi) Black colouration of both eye lids of both eyes. In the opinion of doctor, injury no. iv was grievous. Injury Nos. v and vi were simple. All were caused by hard and blunt substance. In his cross-examination, he has stated that in doubtful cases x-ray plate is necessary to confirm fracture. He has been cross-examined at length but the defence has not able to demolish his evidence. 16. In the opinion of doctor, injury no. iv was grievous. Injury Nos. v and vi were simple. All were caused by hard and blunt substance. In his cross-examination, he has stated that in doubtful cases x-ray plate is necessary to confirm fracture. He has been cross-examined at length but the defence has not able to demolish his evidence. 16. P. W. 10 Kedar Nath Singh has stated that on 2.1.1989 he was posted as Officer-in-Charge of Chanan Police Station and Hemlal Mehra was posted there as Assistant Sub-Inspector. The case was being investigated by Hem Lal Mehra (P.W. 11). The fard beyan was recorded by ASI Sashi Kant Singh, Lakhisarai Police Station which has been marked as Ext. 2. On the basis of fardbeyan, formal FIR was lodged which is Ext. 3. He took the charge of investigation of the case on 2.1.1989 from Hem Lal Mehra (P.W. 11). During investigation, he filed a petition for addition of Section 326 IPC in the FIR. The carbon copy of the petition is Ext. 4. He has taken the statement of Md. Ali Hussain (P.W. 2). He also filed a petition for addition of Section 436 IPC. He has proved the requisition of injury reports which has been marked as Ext. 5 and 6 series. After investigation he submitted charge-sheet. In his cross-examination, he has stated that he only took the statement of Md. Abbas (P.W. 4) and Ali Hussain (P.W. 2). Ali Hussain has not stated before him that Raj Kumar has given him two lathi blows. He has stated that Azim, Abass, Rahmat were also assaulted by the accused. He has not specifically stated as to who had assaulted him. He (P.W. 10) has not visited the place of occurrence. He has stated that Md. Abass (P.W. 4) has stated before him that the accused committed the theft of utensil and dari. He has named the assailants as Baldeo Yadav, Kameshwar Yadav, Jago, Hari Yadav and Ram Chandra Yadav. The statement of Md. Abbas (P.W. 4) is in paragraph 61 of the case diary which has been marked Ext. A. He has stated that it is not a fact that Baldeo Yadav, Kameshwar Yadav, Jago Yadav, Hari Yadav and Ramchandra Yadav are not the assailants of Abdul Majid. He has stated that he also took the charge of material exhibits. Abbas (P.W. 4) is in paragraph 61 of the case diary which has been marked Ext. A. He has stated that it is not a fact that Baldeo Yadav, Kameshwar Yadav, Jago Yadav, Hari Yadav and Ramchandra Yadav are not the assailants of Abdul Majid. He has stated that he also took the charge of material exhibits. He did not send the blood stained soil for examination in Forensic Laboratory. Accused Dukhi, Baldeo, Kameshwar, Jago, Hari and Ramchandra surrendered in the Court on 2.1.1989. Dasrath and Ajay surrendered on 3.1.1989. Paragraph 10 of the case diary has been marked Ext. A/2. Nothing incriminating article was found in the house of the accused. 17. P. W. 11 Hemlal Mehra is the initial Investigating Officer. He has stated that on 30.12.1988 he was posted in Chanan police station. He received fardbeyan from Lakhisarai Hospital on 31.12.1988 in the pen and signature of Shashi Kant Singh, ASI, Lakhisarai (Ext. 2). He took the reinstatement of the informant. He visited the place of occurrence which is in the village-Malia. There is a Tola of Muslim community. There is an Imambara which was in the corner of barren land. In the north side of place of occurrence there is tiled roof house of Md. Yasin and in the southern side there is house of Baiju Rajak and in the eastern side there is house of Basudeo Yadav and in the western side there is field of Dhanu Yadav in which seed was sown. In the southern side of Imambara, there is Madarsa and Masjid and remaining land is barren land. The area of Imambara is three decimal bearing Khata No. 208, Kesara No. 120 and there is also four decimal land of Madarsa bearing khata no 25, plot no. 121. He found blood stains at both the places which were seized as material exhibits. He also found burnt remains of thatched roof of Mahjid. He prepared the seizure list of the blood stained soil and burnt material in presence of witnesses Dilip Bind and Saukhi Yadav which has been marked Ext. 8. The other seizure list was also prepared which has been marked as Ext. 8/1. The blood stained soil kept in two pots have been marked material Ext. I and I/I and burnt articles on the place of occurrence have been marked material Ext. II. 8. The other seizure list was also prepared which has been marked as Ext. 8/1. The blood stained soil kept in two pots have been marked material Ext. I and I/I and burnt articles on the place of occurrence have been marked material Ext. II. In Paragraph 10, he has stated that he made raid for the arrest of the accused but they were found absconding. He deputed Chaukidar Sagar Mandal on the place of occurrence and on the instruction of Senior Police Officer he deputed armed forces and a Magistrate. He got kurki japti against the accused. He handed over the charge of investigation to the Officer-in-Charge K. N. Singh (P.W. 10). In his cross-examination, he has stated that he remained in charge of the investigation of the case from 31st December to 1st January. He has stated in paragraph 15 that he visited the place of occurrence in presence of Azim Mian (P.W. 5). He has further stated that he did not find any hole displacing Khuta. In paragraph 18, he has stated that he found a Madarsa and Masjid in the place of occurrence and he found Masjid in burnt condition collected the burnt remains. In paragraph 19, he has stated that he did not find any tampering mark in the field which was sown. There is no material contradiction in the evidence of this witness. 18. P. W. 12 Sachidanand Yadav is a formal witness. He has proved the deed of gift (Ext. 10) in favour of Madarsa, Malia executed by Garabu Mian which was witnessed by Dilip Bind and Banarasi Das. 19. P.W. 13 Dr. Shambhu Saran has held the post-mortem examination on the dead body of Abdul Majid, a victim of the occurrence on 7.1.1989 which has been marked as Ext. 11 and he found the following ante mortem injury:- (i) Stiched wound 2 ½” length over left parietal. (ii) Lacerated wound 1” x ½” x bone deep over mid of scalp. (iii) Stiched wound ¼” in length over left inguinal region 1 ½” below left interior superior iliac spine. On dissection;- large haemotoma was present under the scalp. The liner fracture of 4 ½” in length involved in left temporal and parietal bone. Large extra dural and sub dural haematoma was present. Time elapsed since death was within 36 hours. The cause of death was the head injury. On dissection;- large haemotoma was present under the scalp. The liner fracture of 4 ½” in length involved in left temporal and parietal bone. Large extra dural and sub dural haematoma was present. Time elapsed since death was within 36 hours. The cause of death was the head injury. The above injuries were sufficient for causing death. In his cross examination he has stated that the treatment of the deceased was done by him. 20. P. W. 14 is a formal witness who has witnessed the inquest report (Ext. 7). 21. After the prosecution evidence the examination of respondents have been made under Section 313 of the Code of Criminal Procedure. The evidence against them has been explained. We do not find any defects. 22. It appears that from the evidence of injured witnesses P.Ws. 1, 2, 4 and 5 who have supported the prosecution case that they are the victims of the occurrence and they would be interested in punishment of true culprits of the occurrence. P.W. 6 Rasida Khatoon is also the neighbour of the place of occurrence and she has rushed to the place of occurrence after hearing the noise. She has also stated in cross-examination para 16 that she wanted to rescue the victim and she also received a lahti blow and thereafter she moved from there. She had gone to rescue her cousin brother Ahmad (P.W. 1). She had also gone to the doctor near Mananpur Station. It appears from the evidence of the Investigating Officer that he had moved fast to the hospital but she did not. The evidence of these witnesses are quite natural and convincing, as such they cannot be discarded mere because they are interested witnesses. It is settled principle of law that the evidence of interested witnesses has to be scrutinized carefully. On careful examination of their evidence it appears that their evidence is quite natural. There are some additions and alterations, but they are not vital and as such their evidence is convincing and fit to be relied upon. It also appears from Ext. C produced by the defence that there has been occurrence between the parties and one of the respondents, Rajkumar Yadav (respondent no. 3) had lodged a case which was registered as Lakhisarai P. S. Case No. 371 of 1988 after lodging the present case by P.W. 5 Md. Azim. It also appears from Ext. C produced by the defence that there has been occurrence between the parties and one of the respondents, Rajkumar Yadav (respondent no. 3) had lodged a case which was registered as Lakhisarai P. S. Case No. 371 of 1988 after lodging the present case by P.W. 5 Md. Azim. It also appears that the case lodged by Rajkumar (respondent no. 5) has been found false and final report has been submitted which has been accepted by the SDJM. The evidence of the eye witnesses stands corroborated by the medical evidence of P.W. 9, who has examined the injured soon after the occurrence. The post-mortem report of P.W. 13 also shows that the injury caused on the head of the deceased was sufficient to cause death. The occurrence has taken place at the instigation of Dukhi Yadav. Accused/respondents had common intention to kill the victims of the occurrence and one of the victims had succumbed to the injuries during treatment at PMCH, Patna. It appears from the impugned judgment that the learned trial Court has disbelieved the prosecution case and one of the ground mentioned in paragraph 31 of the impugned judgment is that in the month of December sun sets at about 5 P. M and the occurrence has taken place at about 5.30 P.M. as such the witnesses might not have seen the occurrence due to darkness. The testimony of the prosecution witnesses is inconsistent and unreliable on the point of assault. There could not be much difficulty for them to identify the accused persons as they were very much their villagers cohabiting it with them side by side with them. 23. The appellate court is empowered to reappraise the entire evidence against the order of acquittal and come to its conclusion, but while doing so, it must not only consider every matter on record having a bearing on the questions of facts but must also consider the reasons given by the trial court in support of its orders of acquittal in arriving at its conclusion on those facts, but should also express its own reasons in its judgment on those issues which led it to hold that the acquittal was not justified. This principle has been laid down by the Hon’ble Supreme Court in Sanwat Singh vs. State of Rajasthan, reported in AIR 1961 SC 715 which reads as under:- “6. This principle has been laid down by the Hon’ble Supreme Court in Sanwat Singh vs. State of Rajasthan, reported in AIR 1961 SC 715 which reads as under:- “6. In recent years the words "compelling reasons" have become words of magic incantation in every appeal against acquittal. The words are so elastic that they are not capable of easy definition; with the result, their interpretation varied between two extreme views- one holding that if a trial court acquitted an accused, an appellate court shall not take a different view unless the finding is such that no reasonable person will come to that conclusion, and the other accepting only the conscience of the appellate court as the yardstick to ascertain whether there are reasons to compel its interference. In the circumstances we think it necessary to clarify the point. 24. This judgment has also been referred to in Government Appeal (SJ) No. 65 of 1990 in the matter of State through Special CBI, Patna vs. Md. Wasimuddin and Ors, reported in 2011(3) BBCJ V 156 by one of us (Dharnidhar Jha, J). 25. In the present case, it has been seen earlier that the evidence of P.Ws. 1, 2, 4, 5 and 6 stands corroborated by the medical evidence of P.W. 9 and P.W. 13. P.W. 11 is the Investigating Officer of the initial stage of investigation and he has found blood stains on the two places of occurrence at Imambara of Masjid and also found burnt remains of the part of the roof of Masjid. It is also admitted case that both the parties are of the same village and are well known to each other. The witnesses can recognize the known persons even by their voice. The occurrence has taken place at about 5.30 P.M on 30.12.1988. It is apparent from the prosecution evidence that at the time of occurrence (at about 5.30 p.m.) it was not dark and there was visibility to identify the accused, as such it cannot be said that it was not possible to identify the accused. The villagers are habituated to identify known persons even in darkness. It is apparent from the prosecution evidence that at the time of occurrence (at about 5.30 p.m.) it was not dark and there was visibility to identify the accused, as such it cannot be said that it was not possible to identify the accused. The villagers are habituated to identify known persons even in darkness. So far, the hole of Khuta is concerned it is not the case of the prosecution that khuta had been uprooted rather it is the case of the prosecution that the accused were demolishing the fencing of the land of Masjid and they are about to extract the khuta of fencing, as such the Investigating Officer has rightly not found any hole from which khuta could have been excavated. Moreover, the respondent no. 3 Raj Kumar Yadav has instituted Lakhisarai P.S. Case No. 371 of 1988 against several persons of his village Malia and some of them are the witnesses of this case as mentioned in para 3 of this judgment. It is the counter version made by the defence. The counter version of the present occurrence has been disbelieved by the investigating agency and final form has been submitted which has been accepted by the learned Sub-divisional Judicial Magistrate, Lakhisarai by order dated 30.4.1990 passed in Lakhisarai (Chanan) P.S. Case No. 371 of 1988 (Ext. 9) As such it is admitted case of the parties that the occurrence has taken place. The Investigating Officer (P.W. 11) has also found the blood stains at two places and marks of burning of the part of Masjid. 26. Considering the facts and circumstances stated above, in our opinion, the view taken by the learned trial judge for acquitting the accused-respondents is not in consonance with the prosecution evidence; as such the finding of the trial court is perverse and it is not fit to be sustained. It is set aside. We find that the prosecution has been able to substantiate its charge against the accused- respondents for the offence punishable under Section 302/34 IPC. It has also been able to prove that they have also committed the offence under Section 323 IPC. It is set aside. We find that the prosecution has been able to substantiate its charge against the accused- respondents for the offence punishable under Section 302/34 IPC. It has also been able to prove that they have also committed the offence under Section 323 IPC. All the accused-respondents, namely, Ram Chandra Yadav, Raj Kumar Yadav, Jago Yadav, Kameshwar Yadav @ Kamo Yadav, Ajay Yadav, Dasrath Yadav are sentenced to rigorous imprisonment for life under Section 302/34 IPC and they are further sentenced to rigorous imprisonment for one year and a fine of Rs.1000/- each under Section 323 IPC and in default of payment of fine they will further remain in custody for three months. The respondent no. 1 Ram Chandra Yadav is further held guilty under Section 436 IPC and sentenced to rigorous imprisonment for five years and a fine of Rs.5000/- in case of default of payment of fine he will be liable to further imprisonment for six months. Both the sentences will run concurrently. 27. In the result, the Government Appeal (D.B.) No. 33 of 1991 is allowed in the above terms. None appeared to press the Cr. Revision petition. In view of this judgment reversing the finding of acquittal by us and passing substantive sentences on different counts upon the respondents, the Cr. Revision petition is dismissed as of no consequence in the light of reversal of the judgment of acquittal. The respondents are on bail, their bail bonds are cancelled. They are directed to surrender in the court below to serve out the sentence. The trial court will issue warrant of arrest against the aforesaid respondents, if they do not surrender within a month of the present judgment. I agree.