JUDGMENT : V.N. SINHA, J. These three appeals arise out of judgment and order dated 30.11.1992 passed by 2nd Additional Sessions Judge, Sitamarhi in Sessions Trial No. 16 of 1991 / 31 of 1991 whereunder accused no. 9, 10, 14, 16, 17, 18, 21 out of 35 accused put on trial have been convicted for the offence under Section 302 of the penal code and sentenced to suffer rigorous imprisonment for life. 2. Prosecution case as set out in the fardbeyan of informant Binda Devi (PW 9) recorded by S.I., P. K. Sinha, Officer Incharge Dumra Police Station on 02.12.1990 at 14:00 hours in her hut at village Mishraulia is that she and her family members reside in a rented house at Dumra as there is land dispute from before in her village Mishraulia. Around 8:00 am she and her family members learnt at Dumra that village Mukhiya, Sahdev Rai, and other villagers are set to forcibly harvest the paddy crop grown on her lands. Having received such information, she, her husband Ramchandra Rai, younger brother-in-law Shivjee Rai and Ram Snehi Rai, son Ram Babu Rai, Laxman Rai, Manoj Kumar Singh, Shyam Kumar Singh, niece Rita Kumari, sister-in-law Kamla Devi proceeded for village Mishraulia. Around 11: 00 am the informant and others reached at their newly raised hut and were making inquiries to ascertain about forcibly harvesting of the paddy crop. Sahdev Rai Mukhiya, Indradev Rai (accused no. 16 as per impugned judgment), Sakaldev Rai (accused no. 17 as per impugned judgment), Lal Babu Rai (accused no. 18 as per impugned judgment), Yashwant Rai, Bhutkun Rai, Ram Prasad Rai, Suresh Rai, Ramadhar Rai, Mahendra Rai, Biru Rai, Ganesh Rai (accused no. 14 as per impugned judgment), Bindeshwar Rai, Bimal Rai, Surendra Rai (accused no. 9), Rajendra Rai, Krishan Jiwan Rai (accused no. 10 as per impugned judgment), Mahendra Mahto, Kari Rai, Bikau Rai, Gulam Rai, Ram Singhashan Rai (accused no. 21 as per impugned judgment), Sonwati Devi, Ram Jyoti Devi, Mahadev Rai, Yogendra Rai, Ramashish Rai, Sukhdev Rai, Dhyani Rai, Binda Devi wife of Surendra Rai, Sugiya Devi, Murti Devi, Ramshakhi Devi, Mangoliya Devi, Sunita Devi and other villagers variously armed with garansa, spear, country made pistol, lathi, bomb and brick came running entered the hut caught hold of her husband Ram Chandra Rai, brother-in-law Shivjee Rai, Ram Snehi Rai and son Ram Babu Rai and dragged them. Informant and other family members requested the accused persons not to do so but the miscreants did not oblige and forcibly dragged them to the Dalan of accused No. 21 (as per impugned judgment) Ram Singhasan Rai. Informant and her family members while weeping followed the accused persons. Her husband, brother-in-law and son after being taken to the Dalan of accused no. 21 were assaulted on the orders of Mukhiya Sahdev Rai as he held out such opportunity may not be available afterwards to finish the entire family. Gulam Rai, Bikau Rai, accused no. 6 Indradev Rai (as per impugned judgment), accused no. 17 Sakaldev Rai (as per impugned judgment), accused no. 18 Lal babu Rai (as per impugned judgment) knocked her husband down on the ground, Sakaldev Rai assaulted him on his head with tangi. Indradev Rai also assaulted him on his head with garansa, Lal Babu Rai assaulted him on his eye with spear. Yashwant Rai, Bhutkun Rai, Ram Prasad Rai, Suresh Rai caught hold Shivjee Rai and knocked him down on the ground whereafter, Yashwant Rai and Bhutkun Rai assaulted Shivjee Rai on his head with garansa, Suresh Rai also inflicted cut injury on the chin of Shivjee Rai with knife, Ram Prasad Rai assaulted him with spear on his head. Mahadev Rai and Yogendra Rai assaulted Shivjee Rai with lathi. Ramadhar Rai, Mahendra Rai, Biru Rai, Ganesh Rai and Kari Rai knocked her son Ram Babu Rai on the ground and Mahendra Rai, Ganesh Rai assaulted him with garansa and tangi on his head. Ramadhar Rai and Biru Rai also assaulted with Garansa on his head. Kari Rai assaulted her son on his back with lathi. Brother-in-law of the informant Ram Snehi Rai was assaulted by Bindeshwar Rai, Bimal Rai, Surendra Rai and Krishan Jeevan Rai after they knocked him down on the ground with garansa and farsa on his head and chin repeatedly. Rajendra Rai also assaulted on their chest several times with wooden logs. 3. After the death of aforesaid four family members, the informant and other members of her family began to cry stating that Mukhiya Sahdev Rai got their entire family killed whereafter Mukhiya Sahdev Rai again abused informant and her family members asking his men that wife of teacher has seen the occurrence as such, she be blinded by pouring milk of Akwan in her eyes. Whereafter Sonawati Devi, Ram Jyoti Devi, Binda Devi wife of Surendra Rai, Sumitra Devi and Mangoliya Devi caught the informant and assaulted her with fist and kicks. Sumitra Devi also assaulted the informant with brick on her waist and Murti Devi, Ramsakhi Devi poured Akwan milk in her both eyes, other members of the family somehow succeeded in running away. The accused persons thereafter tied cycle chain in the neck of the four deceased and dragged them towards south. Informant not only suffered burn feelings in her eyes but there was also watery discharge from the same and she somehow managed to come back to her hut. Informant further stated that the occurrence has been seen by her son Laxman Kumar, Shyam Kumar, Rita Kumari, Kamla Devi and others who may also narrate about the same. She further stated that the reason behind the occurrence is that Mukhiya Sahdev Rai wanted to forcibly harvest the paddy crops. In the penultimate paragraph of the fardbeyan the informant claimed that accused persons variously armed, forming unlawful assembly, entered in her hut and dragged her husband, brother-in-law and her son to the house of Ram Singhasan Rai and killed them and poured Akwan milk in her eyes so that she became blind. In the last paragraph, informant stated that her fardbeyan has been read over to her and she having found the same correctly written has put her left thumb impression over the same in presence of two witnesses as her eyes have been damaged. Besides the informant, Madan Rai, Manoj Kumar and Shyam Kumar also put their signature over the same as attesting witness. Officer In-charge, Dumra Police Station having scribed the fardbeyan at 14:00 hours proceeded to conduct inquest over the four dead bodies on the same day at about 15:25, 15:40 and 16:00 hours respectively in presence of Biswanath Singh and Mandan Rai. Perusal of inquest reports indicate that the same was conducted in the field of deceased Shivjee Rai in village Mishraulia and deceased were done to death by sharp cutting weapon. Perusal of inquest reports indicate that the same was conducted in the field of deceased Shivjee Rai in village Mishraulia and deceased were done to death by sharp cutting weapon. Having completed the inquest proceeding and dispatched the dead bodies for post mortem, the Investigating Officer inspected the place of occurrence, seized incriminating materials on the same day at 17:00-20:35 hours, meanwhile fardbeyan of informant was forwarded to Dumra Police Station for institution of the case which was registered as Dumra P.S. Case No. 149 of 1990 on the same day indicating that Officer-Incharge Pramod Kumar Sinha has taken up its investigation and dispatched the first information report through special messenger to the court of Chief Judicial Magistrate which was perused by Chief Judicial Magistrate on 03.12.1990. The four dead bodies sent by the Investigating Officer for post mortem were received in the post mortem house Sadar Hospital, Sitamarhi on 03.12.1990 at 8:00 am and post mortem conducted on the same day in the morning between 8:30 to 10:00 am. From the post mortem report of four deceased it also appears that the four deceased were done to death by sharp cutting weapon as they died on account of hemorrhage and shock due to incised wounds suffered by them. Investigating Officer recorded further statement of the informant and the Police statement of the witnesses named in the fardbeyan as also other villagers and submitted chargesheet in the light of the said statement as also the contents of the fardbeyan, inquest reports and post mortem reports against all the 35 persons named in the first information report. Chief Judicial Magistrate being satisfied with the charge-sheet took cognizance and after supply of police papers to the accused persons committed the case to the court of Sessions. The Sessions court framed charges against 34 plus 1 accused persons under order dated 07.02.1991, 11.07.1991 respectively to which the accused persons pleaded not guilty and claimed to be tried. 4. To support the charge prosecution examined as many as 16 witnesses. PW 1 Shyam Kumar is the son of deceased Ram Chandra Rai and is named as an eye witness of the occurrence in the fardbeyan. PW 2 Madan Rai is the attesting witness of the fardbeyan as also the witness of inquest and seizure of incriminating articles from the place of occurrence. PW 1 Shyam Kumar is the son of deceased Ram Chandra Rai and is named as an eye witness of the occurrence in the fardbeyan. PW 2 Madan Rai is the attesting witness of the fardbeyan as also the witness of inquest and seizure of incriminating articles from the place of occurrence. PW 3 Manoj Kumar is also son of deceased Ram Snehi Rai and is not only an eye witness of the occurrence named in the fardbeyan but also is attesting witness of the fardbeyan. PW 4 Kashi Nath Mishra is Dafadar of village Mishraulia who appears to be a formal witness who came to the place of occurrence after the occurrence. PW 5 Ram Sanjiwan Paswan village Chaukidar has claimed that on the date of occurrence he was deputed to be present in Dumra field as on that day Adwani Saheb was to visit Dumra. PW 6 Dr. Arun Kumar Sinha is an eye surgeon practicing at Muzaffarpur who examined the eyes of informant Binda Devi on 05.12.1990. He has stated that the patient was not referred to him either by the Police or by any doctor and he issued the exhibited medical report on 22.12.1990 in response to the letter of the Police (paragraph 4 and 5). PW 7 Avinash Ranjan Rastogi is the Military Police Sergeant and has examined the arms produced before him. PW 8 Chitranjan Prasad Singh is the Halka Karamchari. PW 9 Bind Devi is informant and wife of deceased Ram Chandra Rai. PW 10 Laxman Kumar is son of deceased Ram Chandra Rai and named in the fardbeyan as an eye witness. PW 11 Dr. Nagendra Prasad is the Autopsy Surgeon conducted post mortem on the four dead bodies at Sadar Hospital, Sitamarhi on 03.10.1990. PW 12 Kamla Devi is an eye witness to the occurrence and wife of deceased Shivjee Rai. PW 13 Navin Chandra Mishra Sub-Inspector of Police and Incharge of Traffic in Sitamarhi on 12.12.1990 when he was requested by Officer Incharge Dumra Police Station to deactivate two bombs. PW 14 Pramod Kumar Sinha on the date of occurrence of the instant case served as Officer-Incharge Dumra Police Station and not only scribed the fardbeyan but also investigated the case. PW 15 Biswanath Singh witness of inquest and seizure. PW 14 Pramod Kumar Sinha on the date of occurrence of the instant case served as Officer-Incharge Dumra Police Station and not only scribed the fardbeyan but also investigated the case. PW 15 Biswanath Singh witness of inquest and seizure. PW 16 Jitendra Jha served as clerk in the office of Additional Public Prosecutor and proved the signature of District Magistrate, Sitamarhi on sanction order. Besides the prosecution witnesses, the accused persons also examined as many as 7 witnesses to prove the plea of ali bi on behalf of accused persons. 5. Learned counsel for the appellant Ram Singhasan Rai in Cr. Appeal (DB) No. 468 of 1992 submitted that conviction of Ram Singhasan Rai for the offence under Section 302 of the penal code is not at all warranted in the light of the evidence brought on record in the instant case. It is submitted that though Ram Singhasan Rai is named in the fardbeyan as one who also surrounded the hut of the informant and four deceased but he having not played any part in the occurrence as is very well established from the evidence of not only the informant (PW 9) but also her son (PW 1) and her sister-in-law (PW 12) wife of another deceased Shivjee Rai as three witnesses have categorically stated that Ram Singhasan Rai had not committed any overt act in the occurrence. It is submitted that only because the assailants dragged the four deceased from their hut to dalan of Ram Singhasan Rai and assaulted them in dalan, without any assistance from Ram Singhasan Rai, Ram Singhasan Rai had no role to play. It is submitted that the accused persons more than 34 in numbers had taken control of the situation and without being asked by Ram Singhasan Rai dragged the four deceased from their hut to his dalan. They being not at all exhorted by Ram Singhasan Rai he ought not to have been convicted for the offence under Section 302 of the penal code. In the light of the evidence of PW 1 (paragraph 27), PW 9 (paragraph 15) and PW 12 it is evident that Ram Singhasan Rai had not committed any overt act in the entire offence. In the light of the evidence of PW 1 (paragraph 27), PW 9 (paragraph 15) and PW 12 it is evident that Ram Singhasan Rai had not committed any overt act in the entire offence. Learned counsel for the other appellants submitted that the 5 eye witnesses including the informant has been disbelieved by the court below as would appear from the findings recorded in paragraph 34 of the judgment and if those 5 eye witnesses have been disbelieved by the court below, there was absolutely no basis for the court blow to have convicted these 7 appellants. It is further submitted that from the judgment of the trial court it also does not appear that what is the basis for acquitting 28 accused persons as from the evidence of 5 eye witnesses including the informant each of them have played a dominant part in the occurrence which according to learned counsel, is not corroborated from the medical evidence. It is submitted that according to the prosecution case, the four deceased were dragged from their hut to dalan of Ram Singhasan Rai where they were first assaulted one by one with hard blunt substance and then each of them separately were taken inside a room, adjacent to the veranda of the Dalan, size whereof has been found by the Investigating Officer in his inspection of the place of occurrence as 9’x12’ in which it may be impossible for the 35 persons to enter simultaneously and then to assault each of the victim separately. It is further submitted by learned counsel that the meticulous description of the assault by each of the assailants is not corroborated from the medical evidence as found by the doctor in the post mortem report. The post mortem reports of the four deceased indicate that they suffered mostly incised wound. 6. Learned counsel for the State though supported the judgment of the trial court and the conviction of the 7 appellants out of 35 accused put on trial but could not decipher from the material on record and the reason which persuaded the trial court to acquit 28 of the accused persons put on trial and to convict the 7 appellants alone. 7. In order to appreciate the correctness or otherwise of the aforesaid submissions, we have appraised the evidence of the 5 eye witnesses namely, PWs 1, 3, 9, 10 and 12. 7. In order to appreciate the correctness or otherwise of the aforesaid submissions, we have appraised the evidence of the 5 eye witnesses namely, PWs 1, 3, 9, 10 and 12. Out of the aforesaid five eye witnesses, PW 9 Binda Devi is the informant of the case. PWs 1 and 3 are the sons of the deceased Ram Snehi Rai. PW 2 Madan Rai is son of acquitted accused no. 6 Yogendra Rai. Perusal of the evidence of PWs 1 and 3, two sons of deceased Ram Chandra Rai, indicate that they have given a detailed description of the manner of assault on the four deceased after they were caught in their hut and dragged to the dalan of Ram Singhasan Rai. The meticulous description of assault on the four deceased furnished by PWs 1 and 3, the two sons of deceased Ram Snehi Rai, as also in the deposition of informant Binda Devi (PW 9), does not appear to be fully corroborated from the medical evidence as evident from the post mortem reports. It appears that, perhaps, because of lack of corroboration of the minute detail about manner of assault given by these witnesses from the post mortem reports, the trial court proceeded to disbelieve the eye witnesses as discussed in paragraph 23 to 34 of its judgment. 8. Having appraised the evidence, we are of the view that trial court is justified in recording its finding in paragraph 34 of the judgment while disbelieving the eye witnesses about the manner of assault. In our opinion, trial court while acquitting the accused persons should have also acquitted the 7 appellants. Accordingly, we proceed to set aside the impugned judgment of conviction and sentence and acquit the 7 appellants also. All the three appeals are allowed, the appellants are discharged from the liabilities of their bail bonds.