JUDGMENT : V.N. SINHA, J. Both these appeals arise out of judgment of conviction, order of sentence dated 17.06.1992 passed by 3rd Additional Sessions Judge, Darbhanga in Sessions Case No. 44/81/86/91, whereunder Accused Nos. 1,2 and 3 have been convicted for the offence under Section 302/34 of the Penal Code, Accused Nos. 4 to 11 have been convicted for the offence under Section 302/149 of the Penal Code, sentenced to suffer Rigorous Imprisonment for life, 10 years under the two counts, Accused Nos. 4 to 6 have further been convicted for the offence under Section 324 of the Penal Code, sentenced to suffer one year Simple Imprisonment, Accused No. 6 has also been convicted for the offence under Section 323 of the Penal, sentenced to suffer six months’ Simple Imprisonment. The sentences, however, have been directed to run concurrently. Accused Nos. 1, 2, 3, 7, 9 and 11 have also been convicted for the offence under Section 147 of the Penal Code, Accused Nos. 4, 5, 6 and 10 have been convicted for the offence under Section 148 of the Penal Code but no separate sentence has been awarded under Sections 147, 148 of the Penal Code. 2. Before we proceed to consider the prosecution case, challenge made by learned counsel for the appellants to the findings recorded by the trial court, we would like to notice the error in law made by learned trial court in awarding sentence of 10 years’ Rigorous Imprisonment under Section 302/149 of the Penal Code as thereunder it could not have awarded sentence less than Rigorous Imprisonment for life with fine, however, taking into account the fact that the officer has superannuated, we do not say anything more. 3. Prosecution case, as set out in the fardbeyan of the informant Garbhu Mahto (P.W. 7) recorded by Sub Inspector Qamaruddin of Darbhanga (Sadar) Police Station on 01.10.1980 at 6:15 hours in Village- Shibdaspur at the door of the informant is that yesterday (Tuesday 30.09.1980) around 4:30 P.M. she-goat of Yaddu Sahni had strayed, grazing into the brinjal field of his brother. Jainarayan Mahto, cousin of the informant, apprehended the she-goat. Jainarayan Mahto, cousin of the informant, apprehended the she-goat. Jago Sahni, son of Yaddu Sahni, requested the brother of the informant to release the she-goat but he refused to do so, took the she-goat, tired the shegoat at his residence holding out that the she-goat shall be deposited in the Kazi House causing annoyance to the accused persons. Surya Narayan Mahto cousin of the informant after about half an hour, around 5:30 P.M. went towards western side of his house to answer the call of nature, while he was returning, accused persons led by Yaddu Sahni and 12 others named in the First Information Report, all co-villagers, variously armed with lathi, spear, Gandasa, Shahat etc., suddenly appeared from the house of Accused Nos. 1, 11, surrounded him and assaulted with lathi, other weapons. Hearing the alarm informant came running followed by his cousin Sita Ram Mahto, saw Yaddu Sahni, Siban Sahni and Sonelal Sahni armed with spear, accused Maheshwar Sahni armed with Shahat, Ganga Sahni armed with Farsa and others armed with lathi. On the orders of Yaddu Sahni to kill Suryanarain Mahto accused Narayan Mahto, Ram Kishore Mahto and Jagdish Mahto assaulted him with lathi which led to his fall, whereafter Yaddu Sahni inflicted spear blow causing injury on the left side of his chest. Sitaram Mahto elder brother of Surya Narayan Mahto intervened to save Surya Narayan Mahto and was inflicted spear blow by Fakira Sahni causing injury in his left hand. Mahendra Sahni, Ganga Sahni assaulted on his head with lathi, Shushil Sahni assaulted him on his left buttock with Shahat. In the penultimate paragraph of the fardbeyan informant claimed that his cousin Surya Narayan Mahto suffered spear injury from Yaddu Sahni fell down, died at the place of occurrence itself. Accused persons also assaulted his relative Dhuran Mahto with lathi, spear. In the same paragraph informant further claimed that he was also assaulted by Maheshwar Sahni with Shahat causing injury on his right thigh. Informant also claimed that the accused persons pelted brick-bats also on them. In the last paragraph informant stated that the fardbeyan was read over to him, having found the same correct, he put his Left Thumb Impression over the fardbeyan. In the right hand margin of Page-2 of the fardbeyan informant has also stated that Sonelal Mahto, Bhola Mahto and Jibachh Yadav are the witness of the occurrence. 4. In the last paragraph informant stated that the fardbeyan was read over to him, having found the same correct, he put his Left Thumb Impression over the fardbeyan. In the right hand margin of Page-2 of the fardbeyan informant has also stated that Sonelal Mahto, Bhola Mahto and Jibachh Yadav are the witness of the occurrence. 4. The scribe of the fardbeyan conducted inquest proceeding on the same day at 6:30 A.M. over the dead body of Surya Narayan Mahto in presence of Jai Narayan Mahto, Ram Chandra Paswan. After inquest, the dead body was sent for post mortem which reached the Post Mortem House on 01.10.1980 at 10:30 A.M., post mortem was also conducted on the same day by Dr. V.C.S. Verma (P.W. 11) Professor, Head of the Department of Forensic Medicine in Darbhanga Medical College & Hospital. Autopsy Surgeon found incised punctured wound on left side of the chest of the deceased Surya Narayan Mahto caused by spear. The injured were also referred to D.M.C.H. also on the same day and were examined by Dr. Diwakar Mishra (P.W. 12), Dr. Awadhesh Kumar Singh (P.W. 13). Scribe Md. Qamruddin conducted preliminary investigation at the place of occurrence, sent the injured to D.M.C.H. and the dead body to Post Mortem House also in D.M.C.H., returned to the Police Station, registered Case No. 1 dated 1.10.1980 under Sections 147, 148, 149, 302, 323, 324, 336 and 307 of the Penal Code stating that he has already taken up its investigation. Formal First Information Report was drawn on the same day at 1:30 hours and sent to the court through Special Messenger, which was also perused by the Chief Judicial Magistrate on the same day. In the light of the fardbeyan, police statement of the witnesses, contents of inquest, post-mortem report(s) of the deceased, Injury Report of the injured submitted by Dr. Diwakar Mishra, Dr. Awadhesh Kumar Singh, Sub Inspector Qamruddin submitted charge-sheet against all the 13 accused persons named in the fardbeyan including Yaddu Sahni, Siban Sahni. Summons issued, after appearance of the accused persons police papers were given to the accused persons and case committed to the court of Sessions. Before commitment one of the 13 accused persons Siban Sahni left for his heavenly abode. The case of remaining 12 accused persons was, however, committed to the court of Sessions. Summons issued, after appearance of the accused persons police papers were given to the accused persons and case committed to the court of Sessions. Before commitment one of the 13 accused persons Siban Sahni left for his heavenly abode. The case of remaining 12 accused persons was, however, committed to the court of Sessions. Sessions Court framed charge against the 12 accused persons under order dated 08.02.1984 to which they pleaded not guilty, claimed to be tried. 5. During pendency of the trial accused Yaddu Sahni also died and his name was expunged from the array of accused persons. 6. In order to support the charge, prosecution has examined as many as 13 witnesses. P.W. 1 Jai Narayan Mahto is the brother of deceased Surya Narayan Mahto, is a witness of inquest. P.W. 2 Kusheshwar Das, P.W. 3 Sone Lal Mahto both have claimed themselves to be the eye-witnesses of the occurrence but have not been named as such in the fardbeyan. P.W. 4 Jiwachh Yadav is named as a witness in the fardbeyan but has been tendered. P.W. 5 Lakshman Sharma is also a formal witness as he has proved writing on the formal First Information Report. P.W. 6 Sita Ram Mahto is an eye-witness of the occurrence as he is not only named in the fardbeyan but also injured. P.W. 7 Garbhu Mahto is the informant of the case. P.W. 8 Md. Kamruddin is the scribe of the fardbeyan, Investigating Officer of the case. P.W. 9 Rajendra Jha, P.W. 10 Nisarul Haque both are Advocate’s Clerk, have been examined to prove the handwriting over the First Information Report and other document(s). P.W. 11, 12, 13, Dr. V.C.S. Verma, Dr. Diwakar Mishra and Dr. Awadhesh Kumar Singh are the three doctors who conducted post mortem, examined the injured P.W. 6 and the informant. 7. Sri Arun Kumar Tripathi, Advocate, learned Amicus Curiae has taken us through the fardbeyan and the deposition of the material witnesses, namely, informant and the injured and in the light of the contents of the fardbeyan, evidence submitted that as per the prosecution case Yaddu Sahni was the assailant of the deceased Surya Narayan Mahto who died during pendency of the trial and his name expunged from the array of the accused persons put on trial. He also submitted that the convicts herein i.e. Accused No. 1, 2 and 3 though attributed with the overt act of assault on the person of Surya Narayan Mahto by means of lathi but such finding recorded by the court below is not established from the medical evidence in view of the fact that only one abrasion has been found on his person, that too, in the left leg, as such, it is difficult for this Court to pin-point as to who amongst Accused Nos. 1, 2 and 3 is the author of Injury No. 2, bruise, which is simple in nature and the conviction of Accused Nos. 1, 2 and 3 for offence under Section 302/34 of the Penal Code is erroneous and required to be set aside. Learned Amicus Curiae further pointed out that Accused Nos. 4 to 11 though convicted for the offence under Section 302/149 of the Penal Code but such conviction also does not merit acceptance in the light of the evidence on record as Accused Nos. 4 to 11 did not share the common object of Yaddu Sahni to kill Surya Narayan Mahto as they are not even attributed to have caused any specific injury on the person of Surya Narayan Mahto and their conviction for the offence under Section 302/149 of the Penal Code is also required to be set aside. Learned Amicus Curiae further submitted that conviction of Accused Nos. 4 to 6 for the offence under Section 324 of the Penal Code, Accused No. 6 for the offence under Section 323 of the Penal Code also does not merit affirmation by this Court in view of the fact that the two injured P.W. 6 Sita Ram Mahto and informant P.W. 7 have suffered simple injuries which cannot be specifically attributed to Accused Nos. 4 to 6 and 6. 8. 4 to 6 and 6. 8. Learned counsel for the State has supported the judgment but conceded the fact that the primal allegation in the occurrence is levelled against Yaddu Sahni who is the author of the fatal spear injury on the person of deceased Surya Narayan Mahto, he having left for his heavenly abode during pendency of the trial, conviction recorded against the other accused persons is not required to be maintained in view of weak nature of the ocular evidence, which is at variance with not only the findings recorded in the Post Mortem Report and the evidence of Dr. V.C.S. Verma but also in view of the evidence of P.Ws. 12, 13, the two doctors who examined P.Ws. 6, 7, the two injured. 9. Ocular evidence being not corroborated by medical evidence, in our opinion, the appellants herein i.e. Accused Nos. 1 to 11 not having been attributed with the primal role of assault on the deceased Surya Narayan Mahto deserve grant of benefit of doubt as from the very contents of the fardbeyan it is evident that prosecution has attempted to improve its case from stage to stage, in the circumstances, the impugned judgment of conviction, order of sentence is set aside, the two appeals are allowed, appellants are discharged from the liability of their respective bail bonds. 10. Let the operative portion of the copy of this order be sent to Secretary, Patna High Court Legal Services Committee so as to enable the Committee to pay the fees to Sri Arun Kumar Tripathi, learned Amicus Curiae as per rate admissible under the Rules. Appeals allowed.