JUDGMENT : GOPAL PRASAD, J. Three appeals having been heard together are being disposed of by this common judgment as all three appeals arise out of the same judgment dated 22nd April, 1992, passed by the 2nd Additional District & Sessions Judge, Arrah in Sessions Trial No. 100 of 1981, by which the appellants have been convicted for offence under Sections 302/34 and sentenced to rigorous imprisonment for life. 2. The prosecution case as alleged in the First Information Report by the informant Jugal Singh (P.W.5) is that at about 10.00 A.M. while he was cutting grass in his field then he heard sound of cry of his brother Birju (deceased). He went to his Masuri field then saw appellants, Suresh, Bishwanath Singh, Prithbi Singh and Sidhnath Singh scuffling with his brother Birju. He caught the hand of Sidhnath Singh and asked him as to why they were doing so, then his brother disclosed that they were uprooting Masuri and on protest they were assaulting and scuffling on the said utterance Prithbi Singh commanded to assault and gave a lathi blow on the right hand of the informant and in the meantime Sidhnath got his hand freed from the informant and started assaulting the informant causing injury on the head and body of the informant. The brother of the informant came to the rescue of the informant and started making hullah on which Suresh Singh gave dagger blow on Birju on his back and waist due to which the brother of the informant fell down and started rolling in pain. On hullah one Balkhira (not examined) as well as other co-villagers Rambarosa, Ramadhar (P.W.2), Ram Pravesh (P.W.3) Gajadhar (P.W.1) and others came and saw the accused persons fleeing away from the place of occurrence. It is further alleged that after the occurrence accused persons fled away. Further case is that the witnesses and others took the victim to co-villager Lal Babu for his treatment and the said Lalbabu had given first aid of. Thereafter, Birju, (deceased), brother of the informant was taken to Sadar Hospital, Arrah and while on way at Village-Belaur, Birju, the brother of the informant died and then they took the dead body to the hospital. 3. Thereafter, Birju, (deceased), brother of the informant was taken to Sadar Hospital, Arrah and while on way at Village-Belaur, Birju, the brother of the informant died and then they took the dead body to the hospital. 3. The statement of the informant, P.W.5, Jugal Singh was recorded in the hospital at about 5.30 P.M. on 31.01.1980 by the Officer-in-Charge of Nagar Thana Arrah by the Birendra Prasad, S.I. and formal F.I.R. was drawn up and investigation was proceeded with. After investigation, charge sheet was submitted. Cognizance was taken and case was committed to the Court of Sessions. After framing of the charge against four accused persons for offence under Section 302/34 of Indian Penal Code, trial had proceeded. 4. During trial eight witnesses were examined by the prosecution as P.W. 1 Gajadhar Yadav, P.W.2 Rambharosh Yadav, P.W.3 Ramadhar Yadav, P.W.4 Dineshwar Yadav claimed to be eye witnesses to the occurrence. P.W.5 Jugal Singh is the informant, P.W.6 Baban Yadav who tendered by the prosecution, P.W. 7 Dr. Sureshwar Narain Singh who conducted autopsy on the dead body of the deceased and P.W.8 is Ramesh Kumar Singh, Police Officer who had formally proved the Fardbeyan and F.I.R. He had partly Investigated the case and had stated that he got of investigation of the case on 08.03.1980 and submitted charge sheet and formally proved paragraph 1 to 34 of the case diary and writing of Bhuneshwar Prasad the first I.O. who conducted major part of the investigation, though, this witness P.W. 8 has only recorded statement of Balkhira Yadav (not examined), Ramadhar Yadav P.W.3 and Lalbabu (not examined). 5. The trial court after taking into consideration the evidence of witnesses held that P.Ws. 1, 2, 3 and 4 supported the prosecution case and the ocular evidence of informant, P.W.5 and the injury on deceased was corroborated by the evidence of the doctor who had found corresponding injury. Hence convicted the appellants and sentenced as mentioned above. 6. The learned counsel for the appellants submit that P.Ws.1, 2, 3 and 4 are not eye witnesses and they have been set up by prosecution to falsely implicate the appellants and the P.O. has not been established and evidence on the P.O. is fluctuating and there is contradiction in the statements of the witnesses. 6. The learned counsel for the appellants submit that P.Ws.1, 2, 3 and 4 are not eye witnesses and they have been set up by prosecution to falsely implicate the appellants and the P.O. has not been established and evidence on the P.O. is fluctuating and there is contradiction in the statements of the witnesses. I.O. has not been examined and non-examination of I.O. has caused prejudice to the accused as neither P.O. has been established nor the defence could record contradiction. 7. Learned counsel for the State, however, contended that witnesses have supported the prosecution case claiming to be the eye witnesses to the occurrence and they had also deposed regarding manner of occurrence and evidence of the doctor supported the occurrence as the injury was by dagger and hence prosecution has succeeded in bringing home the charges to the appellants. 8. On the respective submission, I proceed to consider the evidence of the eye witnesses in the light of the submission made before the Court. The prosecution case as per evidence of the informant, P.W.5 was that at 10.00 A.M. he started uprooting peas from his field. To the North of his field was the field of his brother Birju. He heard verbal altercation between Birju and four appellants from the field of Birju. Birju at that time was coming from South to his field and the aforesaid appellants were coming from North to South uprooting Masuri. When verbal altercation started he got up and saw that the four appellants were scuffling with Birju. He went there and asked about the occurrence. Birju disclosed that appellants were uprooting his Masuri. P.W.5, informant, then protested as to why the appellants were fighting with his brother. On the command of Prithbi, Sidhnath assaulted the informant by lathi causing injury to his head. Birju in the meantime came to rescue the informant, then Suresh gave dagger blow to him on the waist of Birju and the rest accused persons assaulted Birju and the informant by lathi. After assault the appellants fled away towards West. Thereafter, P.W.1 Gajadhar Yadav, P.W.2 Rambharosh Yadav, P.W. 3 Ramadhar Yadav, P.W.4 Dineshwar Yadav came to the P.O. and they took Birju, carrying on their hands and this witness, P.W. 5 followed them. Birju was treated by a private doctor who bandaged the wound to stop bleeding. After assault the appellants fled away towards West. Thereafter, P.W.1 Gajadhar Yadav, P.W.2 Rambharosh Yadav, P.W. 3 Ramadhar Yadav, P.W.4 Dineshwar Yadav came to the P.O. and they took Birju, carrying on their hands and this witness, P.W. 5 followed them. Birju was treated by a private doctor who bandaged the wound to stop bleeding. Thereafter, they proceeded on bus for Arrah Hospital and he was admitted in hospital. The police came and recorded his statement and had proved his Fardbeyan marked as Exhibit-1. 9. Attention of this witness P.W.5 has been drawn to his earlier statements before the police by suggesting to him that he stated before police at the time of occurrence he was uprooting grass in his field. Whereas his statement before Court was that he was uprooting peas but no explanation has been given by P.W.5. He has further stated that police had not seen the field in which he was at the time of occurrence. Further attention has been drawn regarding his evidence that as he had not stated before the police that when he for the first time saw the occurrence, his brother was coming from South to his field and accused persons-appellants were coming from North to South for uprooting Masuri. Though, the attention has been drawn but I.O. has not been examined to prove the contradiction. Further in the cross-examination in his evidence, the place of occurrence is fluctuating. His evidence in paragraph 6 and 8 is that occurrence took place in Masuri field of Birju, but again he says that occurrence took place at the ridge of the field of Bishwanath. His evidence regarding the place of occurrence is that the Masuri field was 2 and half bighas in South to the field in which he was uprooting grass or peas, but subsequently he says that the field in which the occurrence took place is at a distance of 50-60 steps East from the field in which he was uprooting peas. He says he did not saw any Masuri being uprooted from the P.O. field. Further, he says that Masuri was uprooted, further he says that occurrence took place on the ridge of field of Bishwanath, but he did not go to the field of Bishwanath. Hence his evidence is fluctuating with regard to place of occurrence and as such it does not inspire confidence and appears suffering from contradiction. Further, he says that Masuri was uprooted, further he says that occurrence took place on the ridge of field of Bishwanath, but he did not go to the field of Bishwanath. Hence his evidence is fluctuating with regard to place of occurrence and as such it does not inspire confidence and appears suffering from contradiction. Further as per his evidence on hullah, witnesses came which includes P.W.1, Gajadhar. 10. However, P.W. 1 claimed to have seen the occurrence and claimed that at the time of occurrence, he was at a distance of 200 yards in South uprooting grass and saw dagger blow being given by Suresh to Birju and accused persons fled away in West. They carried Birju and Jugal to hospital. However, the case of the informant itself is that only Birju was carried and Yugal proceeded on his own feet. However, this witness has stated in his cross-examination that occurrence took place in the field of Narmedshwar Pandey and Bishwanath Singh hence as per his evidence P.O. is contradictory. He further stated that he did not find any blood in the field in which occurrence took place, but again he says that he did not remember whether he saw any blood stain in the field or not. Then again, he says that he saw the blood stain there. Hence, his evidence is so fluctuating, that it does not corroborate as to whether he saw blood had fallen or not. He has further stated that he did not see the field from which Masuri was uprooted. He has further stated that he did not see any Masuri uprooted in the P.O. field nor he saw any uprooted Masuri kept there. 11. Hence three aspects about the occurrence that is, the place of occurrence, blood at place of occurrence and uprooting of Masuri in the field for which occurrence had taken place are found missing in his evidence or his evidence on this aspect neither reliable nor trustworthy. Further his evidence suffers from infirmities that they carried Birju as well as Yugal both to hospital whereas the case of the prosecution is that it was only Birju who had fallen down and who was by witnesses and informant followed them on foot. Attention has been drawn to his evidence that he stated before the police that when he reached the P.O. then he saw accused persons fleeing away towards South. Attention has been drawn to his evidence that he stated before the police that when he reached the P.O. then he saw accused persons fleeing away towards South. However, I.O. has not been examined to prove contradiction. Most interesting feature of the evidence of this witness is that he has stated that he reached the P.O. after P.W.2 Rambharosh Yadav, P.W.3 Ramadhar Yadav, P.W.4 Dineshwar Yadav reached there. Hence his evidence shows that he reached at the P.O. after P.W. 2, 3 and 4 reached there whereas P.W. 2 and 4 has stated that they only saw the accused persons fleeing away. 12. However, P.W. 2, though, has stated in his evidence in first paragraph that he heard the sound of cry, then ran and saw Suresh Armed with dagger, Prithbi, Sidhnath and Bishwanath armed with lathi and saw that they were fleeing away. He has not stated that he saw the assault. However, this witness has stated that when he reached at the P.O. he saw Birju and Yugal fallen on ground and Yugal disclosed that Sidhnath, Prithbinath and Bishwanath assaulted him by lathi and Suresh assaulted Birju by dagger. However, this evidence is again a development about disclosure by Yugal creating corroborative evidence, though, Yugal neither in his Fardbeyan nor in his evidence had disclosed that he stated about the occurrence to this witness. Further, this witness did not disclose that Yugal had fallen down after assault. However, this witness has stated that when he reached the P.O. he saw that there were only three persons i.e. Yugal (P.W.5), Birju (deceased) and Gajadhar (P.W.1). He has further stated that after two minutes of his arrival at P.O., Ramadhar (P.W.3) reached there. Hence the claim of P.W.3 of having seen the occurrence suffers from infirmities. He has further stated that Yugal moved on foot and he carried Birju along with four others. He has further stated that he did not see the bundle of Keshari in the P.O. land nor he saw uprooting Keshari in the place of occurrence and further that place of occurrence was the field of Bishwanath Singh and Narmedshwar Pandey. Hence, evidence of this witness neither supported the prosecution case about place of occurrence nor did he find any blood at the P.O. nor did he find uprooting of crop nor did he find any bundle of Masuri. Hence, evidence of this witness neither supported the prosecution case about place of occurrence nor did he find any blood at the P.O. nor did he find uprooting of crop nor did he find any bundle of Masuri. So the genesis of occurrence appears not proved, nor he saw the occurrence of assault and as per his evidence, the place of occurrence is the field of Bishwanath which is contrary to prosecution case in F.I.R. 13. As per the prosecution case in the F.I.R. the P.O. field was the field of Birju. However, P.W. 3 Ramadhar claimed to have seen the occurrence and stated that he reached the P.O. on hearing hullah, but in his cross-examination he has stated that when he reached the P.O. there was 30-40 persons collected there and at that time the accused persons had fled away from the P.O. towards South and then to West and had already travelled about 300-400 yards West to the P.O. Hence the possibility to see the occurrence is bleak. He has further stated that Masuri and Keshari crop were standing at the P.O., but he did not see uprooting of Keshari at the P.O. land. He did not see any bundle of Keshari. He has further stated that he did not see whose field was the P.O. He has further stated that he cannot say whether there was any land of Birju and Yugal around the land of P.O. He has further stated that he did not know any land of Birju. 14. It is pertinent to mention here that the occurrence took place for the cause that the appellants were uprooting Masuri crop and this is genesis of the occurrence, but as per evidence of P.Ws.1, 2 and 3 they did not find any crop uprooted or being uprooted nor did they find any bundle of crop, nor did they find any blood stain. Though, P.Ws.2 and 3 are not eye witnesses to the occurrence and they only saw the accused persons fleeing away and as per evidence of P.W. 3 he saw accused persons already fleeing away to a distance of 300-400 yards from the P.O. field hence his evidence cannot be stated to be reliable to be an eye witness. Their evidence about place of occurrence is also at variance as per their evidence. Their evidence about place of occurrence is also at variance as per their evidence. P.O. is the field of Bishwanath and Narmedshwar whereas evidence of P.W. 5 in paragraph 16 and 8 stated that the P.O. land was Masuri field of Birju. 15. P.W. 4 is none else than the son of Birju (deceased) and nephew of the informant. He has stated at the time of occurrence he was near the village road of Banauli, sitting on the bridge and that bridge was at a distance of 400 yards from place of occurrence. After hearing hullah, he rushed to the P.O. and saw Bishwanath, Suresh, Prithbi and Sidhnath were fleeing away towards South. However, this witness has stated in this evidence that Birju disclosed that Prithbi, Suresh, Sidhnath and Bishwanath had assaulted him. However, this is an attempt to create a dying declaration. There is no case of prosecution in the First Information Report about any utterance by Birju. Further this witness was at a distance of 400 yards from the place of occurrence. However, attention has been drawn to this witness regarding his statement before the police and he stated that he did not remember whether he had stated before the police that he was sitting on the bridge under at Bargad Tree which was about 1 kilometer South-East of the P.O. However, the I.O. has not been examined to record contradiction, though, he has stated that when he had reached the P.O. he saw five persons at P.O. for the first time including Birju and Yugal, then he remained there for five minutes then he went away. However, he has come to depose that there was bundle of Masuri and blood had been oozing out from Birju’s body. Further he has stated that Daroga Ji had not taken bundle of Masuri and has stated that he did also not take any blood stain from the P.O. Hence, evidence of this witness is not reliable. However, in the light of evidence of P.Ws. 2, 3 and 4 that they reached at the P.O. after occurrence had taken place and they only saw accused persons fleeing away from the place of the occurrence. However, in the light of evidence of P.Ws. 2, 3 and 4 that they reached at the P.O. after occurrence had taken place and they only saw accused persons fleeing away from the place of the occurrence. But P.W.1 and 3 tried to be eye witnesses of the occurrence and P.W. 2 tried to develop prosecution case to create corroborative evidence by disclosure of the name of appellants by Yugal and further developing the prosecution case by creating evidence of dying declaration as per evidence of P.W.4 that Birju disclose that appellants had killed by dagger and the prosecution has develop the prosecution case from stage to stage. P.W. 4 was the last person who reached at the P.O. and reached the P.O. from a distance of 1 kilometer or 400 yards from the P.O. and hence his evidence that Birju disclosed as to who had assaulted him is only a development which has not been supported by any witnesses and this is only an attempt to create a dying declaration which is not acceptable. 16. So far as the evidence of P.W.1 that he had seen the occurrence and that he saw the occurrence of assault is concerned what I find is that P.Ws.2, 3 and 4 claimed to have reached at the P.O. when the accused had fled away from there. However, in his evidence, he stated that he reached at the P.O. after P.Ws.2, 3 and 4 had reached there. P.Ws. 2, 3 and 4 had not seen the occurrence but they had only seen accused persons running away. As such, the evidence of P.W. 1 that he saw the occurrence is neither trustworthy nor reliable, apart from the infirmities found in his evidence as neither they supported the place of occurrence as per evidence of P.Ws.1 and 2 that the occurrence had taken place in the field of Narmedeshwar Pandey and Bishwanath and they did not see any bundle of Masuri lying there nor they saw any Masuriu was uprooted and the evidence of P.W. 2 to the effect that he did not see the uprooting of Keshari or any bundle of Keshari crop and he being the nephew of the informant stated that he did not know as to whom P.O. land belonged to and he had also stated that in or around the P.O. land, there was any land of Birju and Yugal. 17. 17. So far as P.W.5, the informant is concerned, his evidence is not specific about P.O. land. His evidence is fluctuating regarding the P.O. land. In the First Information Report, he stated that he heard the sound of altercation in the field of Birju to the North of the field where he was working. However, in his evidence in paragraph 7, he has stated that the field in which he was working, i.e., pea field was about 50-60 yards East of the P.O. field. Hence this statement is quite contradictory to that made by him in F.I.R. The P.O. land is the field of Birju is towards North of his field in which he was uprooting grass/peas. But his further evidence is that occurrence took place on the ridge of Bishwanath’s field but while giving boundary of the P.O. field, he had not given name of Bishwath in any of its boundaries. Hence his evidence regarding P.O. field is fluctuating. 18. P.W. 6 has been tendered and P.W. 8 is I.O. who has only submitted charge sheet He had not inspected the P.O. rather he had only recorded the statement of Balkhira and Rambhorash and Lalbabu and submitted charge sheet. However, I.O. has not been examined who recorded the statement in paragraph 31 and 34 of the case diary. 19. So far injury on the person of the deceased is concerned, P.W. 5 has come to depose that in his evidence he has assaulted by Prithbi, Sidhinath by lathi and Suresh gave dagger blow on the waist of Birju and other appellants assaulted Birju by lathi. However, this witness, though, claimed to be admitted in hospital and treated there, but there is no injury report and the doctor who had examined this witness, had not been examined and the injuries on the person of the informant has not been proved and except evidence of P.W.1, there is neither any injury found by the doctor nor injury report has been proved by the doctor. Hence assault on the person of the informant has not been established to corroborate the oral evidence of the informant about assault on his person by the accused Prithbi and Sidhnath. 20. Hence assault on the person of the informant has not been established to corroborate the oral evidence of the informant about assault on his person by the accused Prithbi and Sidhnath. 20. So far the injury on the person of Birju is concerned, P.W. 1 is only witness of this occurrence and his evidence is not reliable as per his evidence as he reached the P.O. after P.W. 2, 3 and 4. However, evidence of P.W.2, 3 and 4 does not claim to saw the occurrence then it is not proper to rely on the evidence of P.W. 1 that he saw the assault of his own eye and hence his evidence is rejected and not accepted. 21. So far as the evidence of P.W.5 is concerned, he has stated in his evidence that Suresh gave dagger blow on the waist of Birju. He has further stated that the victim was taken to village and was treated by Ramlal. However, Ramlal has not been examined. Further case is that victim was taken by Bus and on the way to Arrah hospital he died. Postmortem report has been proved by P.W.7, the Doctor who had conducted the autopsy on the person of the deceased and he had found two injuries; (i) incised wound 1/1/4”x1/2”x3/4”x3” inches lateral to the middle line of right side of back at the level of fourth lumber vertebra and (ii) incised wound on the right side of thorax lateral to the middle on the back at the level of lower hand of scapula place vertically size 1/1/2”x1/2” cavity deep. On dissection of right plural cavity the doctor has found full of blood and the right lung was exteriorly congested and there was laceration of the size 1/2"x1/2”x1’ on the post lateral side on the lung. It has further been opined that time lapse since death within 48 hours and nature of injury is sharp pointed. 22. However, the occurrence is alleged to have taken place at 10.00 A.M. on 31.01.1980. Thereafter, witnesses had taken the victim to village doctor Lalbabu where treatment was given to him and thereafter, victim was taken to Arrah hospital and he died in between the way to Arrah hospital in the Village-Belaur but Lalbabu has not been examined. Hence, the victim died on 31.01.1980. Thereafter, witnesses had taken the victim to village doctor Lalbabu where treatment was given to him and thereafter, victim was taken to Arrah hospital and he died in between the way to Arrah hospital in the Village-Belaur but Lalbabu has not been examined. Hence, the victim died on 31.01.1980. However, his postmortem was conducted on 01.02.1980 at 10.00 A.M. The doctor has opined that time elapsed since death was within 48 hours. However, as per prosecution case time elapsed since death was within 24 hours but the doctor reported that the time elapsed since death was much more than 24 hours. Moreover, only one witness P.W. 5, the informant who claimed to have seen the occurrence due to being at the P.O. from the very outset of the occurrence. However, the doctor found there were two injuries on the person of the deceased. But P.W. 5 in his evidence has stated about only one blow having been given by dagger on the waist of Birju. As noted already as per the evidence of the doctor, there was one incised wound on the right side of thorax, lateral to the middle on the back at the level of lower scapula and other was the incise wound on the right side of thorax on the back. P.W.5 had stated that Suresh gave only one blow on the waist, though, in the Fardbeyan, there is allegation of two blows. Hence evidence of P.W.5 also is not corroborate by the earlier statement and medical evidence. P.W.5 is only eye witness to the occurrence who claimed to being present at the P.O., though, prosecution case in the First Information Report was that Suresh gave two dagger blows to Birju. P.W. 5, the informant however, in his evidence does not say about two dagger blows, but says only one dagger blow was given to the deceased. However, as per medical evidence there was no lathi injury on the person of the deceased, though, there is allegation that both deceased and informant were assaulted by lathi. But there is no medical evidence by lathi on the informant and deceased. Hence, evidence of P.W.5 about manner of occurrence also does not inspire confidence. Hence taking into consideration the entire evidence of the witnesses I find it suffering from infirmities creating a doubt about their being eye witnesses to the occurrence. But there is no medical evidence by lathi on the informant and deceased. Hence, evidence of P.W.5 about manner of occurrence also does not inspire confidence. Hence taking into consideration the entire evidence of the witnesses I find it suffering from infirmities creating a doubt about their being eye witnesses to the occurrence. Moreover, though, occurrence was alleged to have taken place on 31.01.1980, Fardbeyan was recorded on 31.01.1980 and F.I.R. lodged on 01.02.1980 also cast a serious doubt. 23. Hence taking into consideration the entire evidence, the prosecution case that occurrence took place in the Masuri field of Birju and genesis of occurrence is uprooting the Masuri by the accused persons and on hullah P.W. 1, 2, 3 and 4 came and saw the occurrence. However, P.W. 1 claims to be the eye witness but his evidence that he reached the P.O. after P.W. 2, 3 and 4 reached there. Whereas the evidence of P.Ws. 2 and 4 was that when they reached the P.O. the accused persons had already fled to the extent of 300 to 400 yards and the evidence of P.W. 3 in his cross-examination was also to the effect that when he reached there, 30-40 persons were there and accused persons had already gone to the extent of 300 yards to 400 yards and hence the possibility of evidence of P.W. 1 having seen the occurrence is bleak. Moreover, the evidence of P.Ws. 1, 2 and 3 was that P.O. field was the field of Bishwanath and Narmedshwar and hence their evidence was contrary to the prosecution case in F.I.R. that the P.O. field was the field of Birju. P.W. 3 has stated that he does not know whose field was the P.O. land and he cannot say whether any land of Birju and Jugal was there. P.Ws. 1, 2 and 3 neither found blood at the P.O. nor found the uprooted Masuri there nor found any bundle of Masuri crop nor even sign of uprooting Masuri crop. P.W.4 is son of Birju and his evidence was that he was in the Village Banauli on the bridge about 400 yards West of the P.O. land and so being an eye witness is very bleak. 24. Hence in view of their evidences it is apparent that they are not eye witnesses to the occurrence and reached the place of occurrence after the occurrence. 24. Hence in view of their evidences it is apparent that they are not eye witnesses to the occurrence and reached the place of occurrence after the occurrence. Their evidence does not support the place of occurrence. The case of the prosecution was that victim got dagger injury and blood oozed out of victim Birju after he fell down. But no blood was found at the P.O. as per the evidence of the witnesses. The occurrence took place for uprooting the Masuri crop but witnesses neither saw the uprooted Masuri crop nor sign of uprooting of Masuri nor bundle of any uprooted Masuri and hence genesis of occurrence appears not proved. As per the evidence of P.Ws.1 and 2, P.O. was the field of Bishwanath and Narmedshwar and P.W.3 stated that he did know in whose field the occurrence had taken place and hence their evidence is against the prosecution case in the F.I.R. As per F.I.R. the occurrence took place in Masuri field of Birju. However, the informant in his cross-examination in paragraph 7 stated that occurrence took place at the ridge of the field of Bishwanath, though, he says he cannot say the boundary of the field of Bishwanath and has given the boundary of P.O. land, but in the boundary of P.O. land given in paragraph 7 there is no mention of the name of Bishwanath in any side of the P.O. land. P.W. 5 also deposed in paragraph 8 that no blood was found in Birju’s field and in P.O. field the Masuri crops were not uprooted. And in the background of these evidence, the fact that the I.O. who inspected the P.O. has not been examined, has cast prejudice as P.O. has not been established by prosecution nor genesis has been proved. 25. Hence the prosecution has neither proved the place of occurrence nor the genesis of the occurrence nor P.Ws. 1, 2, 3 and 4 are the eye witnesses to the occurrence and the evidence of P.W.5 is also found in variance as regard the place of occurrence. The genesis of the occurrence has not been established. The prosecution case that the informant was assaulted and he got injury on his head with bleeding injury. 1, 2, 3 and 4 are the eye witnesses to the occurrence and the evidence of P.W.5 is also found in variance as regard the place of occurrence. The genesis of the occurrence has not been established. The prosecution case that the informant was assaulted and he got injury on his head with bleeding injury. But injury report of his person has not been proved and in his account of assault on the person of deceased, he has stated about only one dagger blow on the deceased brought in his deposition also not explain the two injuries found by the doctor. Though, the prosecution case in the Fardbeyan was of two dagger blows but in his evidence, P.W. 5 deposed to only one blow having been given to the deceased, so the evidence about assault is not fully supported and is not consistent with the medical evidence of two injuries. 26. Hence the prosecution has neither established the place of occurrence nor manner of occurrence nor the genesis of occurrence and the evidence of P.W.5 is not in consonance with the medical evidence. Hence, the prosecution has failed to prove the prosecution case beyond reasonable doubt. The accused persons are acquitted and the judgment and order of conviction is set aside. The appellants are on bail. They are ordered to be discharged from liabilities of their band. Three appeals are allowed. Dharnidhar Jha, J.- I Agree. Appeal allowed.