JUDGMENT : Heard the learned counsel for the State. No body appeared on behalf of the appellants. 2. Prosecution case as alleged in the first information report by the informant Bindeshwar Yadav alleging therein that on 17.09.1988 at 01.30 P.M. while he was grazing his two buffalos and four calves in western bandh and when he reached at the field of Lodhaye Yadav, son of late Gona Mandal, then, Badri Yadav, son of Lodhaye Yadav armed with bhala came with Hari Yadav to see his field and asked the informant why he has grazed his field. The informant retorted that he has not grazed the field and called his family members, on which Rais Yadav, Kokai Yadav, Dharmi Yadav, Suren Yadav, Hajo Yadav came armed with lathi, arrow, bhala and all started indiscriminately assaulted him, on which he fell down on the ground. Kokai Yadav and Hari Yadav assaulted Satto Yadav by lathi. He also fell down. 3. The state of the informant was recorded at Basti Out Post and the fardbeyan was sent for lodging first information report after making endorsement by P.W. 6 and the investigation of the case was handed over to the Assistant Sub Inspector of Police, Md. Nexammuddin Ansari and, subsequently, the investigation was taken over by P.W. 6 on 06.10.1988. 4. The police after investigation submitted the charge sheet, cognizance taken, case committed to the Court of sessions and, thereafter, the charge was framed against Kokai Yadav and Hari Yadav for offence under Section 302 of the Penal Code for alleged murder of Satto Yadav. Further, Badri Yadav, Raushan Yadav, Dharmi Yadav, Suren Yadav and Hajo Yadav where charged under Sections 302/149 of the Penal Code. Further, Badri Yadav, Raushan Yadav, Dharmi Yadav, Hajo Yadav, Kokai Yadav and Hari Yadav were charged under Sections 147 and 323 of the Penal Code. 5. During the trial seven witnesses were examined. However, after examination of P.Ws. 1, 2 and 3 the charge was framed on 10.09.1997. P.W. 1 Awadh Yadav was examined on 06.02.1998 as appears from the order sheet. P.W. 2 Ram Lakhan Yadav was examined on 23.02.1998. P.W. 3 Umesh Yadav was examined on 07.04.1998 and from order, dated 22.03.2001 it appears that a petition was filed that the witnesses Kusum Lata Yadav has been won over by the accused persons, hence, her evidence be given up. P.W. 2 Ram Lakhan Yadav was examined on 23.02.1998. P.W. 3 Umesh Yadav was examined on 07.04.1998 and from order, dated 22.03.2001 it appears that a petition was filed that the witnesses Kusum Lata Yadav has been won over by the accused persons, hence, her evidence be given up. It has, further, been mentioned that from the perusal of the record that when the witnesses examined in this case on 06.02.1998, 23.02.1998 and 07.09.1998 respectively, Awadh Yadav, Ram Lakhan Yadav and Umesh Yadav all the three were examined and cross-examined, but, their evidences or depositions are missing and direction was issued to find it out and to place on record. On 14.03.200 Md. Nezammuddin, an Advocate Clerk, was examined, who formally proved the formal first information report, marked as Exhibit 4. On 21.04.2011 Mridula Kumari, Inspector of Police, examined as P.W. 6 and on 28th September, 2012 Ram Lakhan Yadav was examined as P.W. 7. On 1st March, 2013, Dr. Achaibar Choudhary was examined as P.W. 8. On 9th April, 2013, Jhari Lal Rai was examined as P.W. 9, who is an Advocate Clerk and has come to formally prove the charge sheet, marked as Exhibit 4, as well as form filled up by Mridula Kumari, marked as Exhibit 4/1. However, subsequently, the number of the prosecution witnesses was changed with regard to Bindeshwari Yadav as P.W. 5 from P.W. 4 and witness number of Ram Lakhan Yadav changed as P.W. 2 from P.W. 7. However, from perusal of the record, it appears that the evidence of Awadh Yadav P.W. 1 could not be recorded as it was found that said Awadh Yadav is dead. However, P.W. 3 Umesh Yadav has been examined on 24.11.2011 and he has been declared hostile, hence, depositions of three witness originally P.Ws. 1, 2 and 3 were lost and, then, the trial Court could not record the statement of P.W. 1 Awadh Yadav as he was dead. Evidence of P.W. 2 Ram Lakhan Yadav which was lost has been re-examined as P.W. 7 and later it was re-numbered as P.W. 2 and evidence of P.W. 3 Umesh Yadav having been lost has been re-examined as P.W. 3 on 19.11.2011. 6. However, the trial Court, after taking into consideration the evidences of the witnesses as mentioned above convicted and sentence the appellants for offence under Sections 302/149 and 323 of the Penal Code. 7. 6. However, the trial Court, after taking into consideration the evidences of the witnesses as mentioned above convicted and sentence the appellants for offence under Sections 302/149 and 323 of the Penal Code. 7. As no one appeared on behalf of the appellant, the learned counsel for the State assisted and having gone into the entire record, it is apparent that the evidence of P.W. 1 having been lost, P.W. 7 is renumbered as P.W. 2. He is bahnoi (brother-in-law) of the deceased Satto Yadav and has claimed to be the eye witness. P.W. 3 Umesh Yadav has turned hostile. P.W. 4 Md. Nezammuddin is a formal witness, an Advocate Clerk, who has formally proved the formal first information report. P.W. 5 Bindeshwari Yadav is re-numbered as P.W. 5 from P.W. 4 is a villager and has also been turned hostile as not supported the prosecution case. P.W. 6 is Mridula Kumari, who has conducted the investigation, in part. P.W. 7, re-numbered as P.W. 2, Ram Lakhan Yadav, is the bahnoi (brother-in-law) of the deceased and he claims to be the eye witness. P.W. 8 is the Doctor, who conducted the post mortem examination of the deceased Satto Yadav and P.W. 9 is again an Advocate Clerk who has formally proved the charge sheet. 8. Hence, taking into consideration the entire evidence, only two witnesses are claiming to be the eye witnesses who are P.W. 4, who has been re-numbered as P.W. 5 Bindeshwari Yadav, the informant, and P.W. 7, who has been re-numbered as P.W. 2, Ram Lakhan Yadav, bahnoi (brother-in-law) of the deceased and, thereafter, the evidence of two official witnesses, the Doctor P.W. 8 and the investigating officer P.W. 6 Mridula Kumari who has done part investigation. 9. 9. The prosecution case, as alleged in the first information report by the informant, is that while he was going to graze his cattle, two buffaloes and four calves and reached near the field of Lodha Yadav, then, Badri Yadav, armed with bhala, came along with Hari Yadav and asked why he is grazing his crops on which Raushan Yadav, Kokai Yadav, Dharmi Yadav, Suren Yadav, Hajo Yadav armred with lathi, phatta and bhala started assaulted him indiscriminately by which the informant fell down and when Satto Yadav came to his rescue, then, Satto Yadav was assaulted by Kokai Yadav and Hari Yadav by lathi by which he fell down and, thereafter, the villagers came. Satto Yadav was taken to hospital where after some days he died and his post mortem was conducted on 26.09.1988, hence, it is apparent that he died after about 9-10 days. 10. However, plaintiff witnesses number of the two prosecution witnesses were changed. P.W. 4 renumbered as P.W. 5 and P.W. 7, renumbered as P.W. 2, who are the informant, Bindeshwari Yadav and Ram Lakhan Yadav respectively. 11. Ram Lakhan Yadav P.W. 2 in his evidence has stated that two days prior to the occurrence he had been to the out house of Satto Yadav as his guest and has stated that on hearing hulla he went to the place of occurrence and saw Satto Yadav was being assaulted by Hari Yadav, Kokai Yadav, Raushan Yadav, Badri Yadav, Hajo Yadav, Suren Yadav and Dharmi Yadav and all were assaulting him by lathi and has, further, stated that after assaulting him the accused persons flee away and Satto Yadav was taken to Maehepura from where be was referred to Saharsa. However, in his cross-examination this witness has stated, in paragraph 11 that on hulla he went to the place of occurrence and found Satto Yadav having fallen on the ground and was unconscious. He has, further, stated that there was lathi injury on his head and also injury on the arms and back. He has, further, stated that blood has also fallen down on the earth, but, he stated that he can not say that how much blood was spread on the ground. He has, further, stated that his clothes were smeared with blood. However, the suggestion has been given that the witness has not seen the occurrence and has given false evidence. He has, further, stated that blood has also fallen down on the earth, but, he stated that he can not say that how much blood was spread on the ground. He has, further, stated that his clothes were smeared with blood. However, the suggestion has been given that the witness has not seen the occurrence and has given false evidence. He has denied the suggestion that at Saharsa a fardbeyan was recorded by him in which he has mentioned that he learnt about the occurrence from Awadh Yadav on reaching the village. However, from his evidence, it is apparent that this witness has stated that he has seen the occurrence and the victim was being assaulted by Hari Yadav, Kokai Yadav, Raushan Yadav, Badri Yadav, Hajo Yadav, Suren Yadav and Dharmi Yadav by lathi, but, the prosecution case as alleged in the first information report that all lthe accused persons assaulted the informant, Bindeshwari Yadav and when the informant fell down and Satto Yadav come to the rescue of the informant, then, Hajo Yadav, Kokai Yadav and Hari Yadav given him lathi blow, hence, the prosecution case in the first information report is to the extent that Satto Yadav was assaulted by only Kokai Yadav and Hari Yadav by lathi by which he fell. However, this witness, P.W. 7, Ram Lakhan Yadav has been renumbered as P.W. 2, has stated that Satto Yadav was assaulted by Hari Yadav, Kokai Yadav, Raushan Yadav, Badri Yadav, Hajo Yadav, Suren Yadav and Dharmi Yadav is contrary to the statement made by the informant in the first information report. However, this witness, in his cross-examination, has stated that on hulla he went there and found Satto Yadav fallen on the ground and he was unconscious, hence, from his evidence it was apparent that he was not an eye witness to the occurrence. He did not see the assault. However, the criticism of the evidence of this witness is that he in his evidence has stated that the blood was oozing out from the body of Satto Yadav and he has stated that the blood has oozed out and fallen on the ground. However, the informant in his evidence, in paragraph 26, has specifically stated that when Satto Yadav fallen on the earth, there was no blood oozed out on the ground. However, the informant in his evidence, in paragraph 26, has specifically stated that when Satto Yadav fallen on the earth, there was no blood oozed out on the ground. He has stated that on the head there was a deep sign of injury, but, the blood had not oozed out, hence, the evidence regarding oozing of blood is quite contrary to the evidence of P.W. 4, the eye witness and P.W. 7, which has been numbered as P.W. 2, Ram Lakhan Yadav. So far the evidence of P.W. 5 Birendra Yadav is concerned, the prosecution case in the fardbeyan, itself, that Satto Yadav was assaulted only by Kokai Yadav and Hari Yadav and was assaulted when he came to the rescue of the informant whereas the informant was assaulted by Raushan Yadav, Kokai Yadav, Dharmi Yadav, Suren Yadav and Hajo Yadav by lathi indiscriminately by which the informant fell down. However, there is no evidence regarding the corroboration of this part of the evidence regarding assault by the accused persons on the person of the informant. No injury report has been proved though this witness, P.W. 5, Birendra Yadav has stated in his evidence that he was treated at Madhepura Hospital, but, neither injury report nor any evidence nor the Doctor, who examined the injured, has been examined or proved the injury report. P.W. 5 in his evidence has stated that when he went to graze the land and alleged him for grazing his crops and when he refuted then there was verbal altercation and hulla and on hulla the accused persons Raushan Yadav, Dharmi Yadav, Hari Yadav, Hajo Yadav and others came and started assaulting the informant and he has, further, stated that when Satto Yadav came to his rescue, he was also assaulted by Badri Yadav, Kokai Yadav, Dharmi Yadav, Hajo Yadav and Hari Yadav. He has, further, stated that they have also assaulted him on his head. However, going to this evidence, this is quite contrary to the statement of the informant in his fardbeyan. He has, further, stated that they have also assaulted him on his head. However, going to this evidence, this is quite contrary to the statement of the informant in his fardbeyan. Here the informant has alleged that all the seven accused persons assaulted Satto Yadav, which is contrary to the statement of the informant in the first information report where the role has only been attributed to Kokai Yadav and Hari Yadav for assault on Satto Yadav whereas in his evidence the assault has been attributed to all the accused persons and it has been asserted that all the seven accused persons have assaulted, hence, so far the evidence of assault on the person of the informant is concerned, there is no corroboration regarding his assault on his person as the Doctor has not been examined nor the injury has been found and so far the assault on the person of Satto Yadav is concerned, the manner of occurrence varies as stated in the first information report by the informant and except the evidence of the investigation there is no other evidence as the evidence of P.W. 7, who has been renumbered as P.W. 2, Ram Lakhan Yadav does not inspire confidence in view of the fact that he claimed to be a chance witness that he by chance came to the house of the deceased, Satto Yadav, two days prior to the occurrence and, further, he claimed to be the eye witness and has stated in his examination-in-chief that all seven persons assaulted Satto Yadav, but, in cross-examination he has stated that when he reached at the place of occurrence he found Satto Yadav fallen on the ground in unconscious state, itself, belies his claim to be an eye witness and, further, his evidence is contrary to the evidence of P.W. 7 that when he says that blood was oozing out over the entire place. The investigating officer has come to depose that he has not stated anything about the place of occurrence nor she has stated that she found any blood at the place of occurrence and, further, with regard to the place of occurrence, the investigating officer has not whispered a word and though stated that the investigation held by Md. Nezammuddin Ansari, but, the said Md. Nezammuddin Ansari, but, the said Md. Nezammuddin Ansari was not examined as a witness and P.W. 6 Mridula Kumari, the investigating officer, has not whispered a word about blood found at the place of occurrence. So far the place of occurrence is concerned, from the evidence of P.W. 5 the informant, Bindeshwari Yadav, who has stated in paragraph 11 of his deposition that the occurrence took place in the field of Raushan Yadav and he has given the boundary of the said field. Further, in paragraph 11 he has stated that occurrence of assault has not been occurred in the field of Raushan Yadav, but, the assault was made in the field of Gorahai and he has given the description of the boundary of the said field. The description of the two boundaries is quite different. 12. Hence, having regard to the facts and circumstances of the case the prosecution has not been able to prove the place of occurrence, the manner of occurrence and the evidence of P.W. 2 does not inspire confidence to be relied upon to record the conviction and the evidence of P.Ws. 5 and 6 also suffers from various infirmities as his version in the first information report and his version in the evidence is quite contrary to the manner of offence and his evidence regarding assault on the person of Satto Yadav is general and vague with regard to all the seven accused persons, which is contrary to the statement by him in the fardbeyan, hence, it is apparent that he wants to implicate all the accused persons, which is quite contrary to his statement in the fardbeyan and there s no other witness to support the prosecution case neither his version is supported by the medical evidence. P.W. 8 is the Doctor who conducted the post mortem examination on 26.09.1988 and found abrasion and bruises on the temporal region of the victim deceased Satto Yadav and also found the skull fractured and after opening the scalp big clot were found on both the side o brain. P.W. 8 is the Doctor who conducted the post mortem examination on 26.09.1988 and found abrasion and bruises on the temporal region of the victim deceased Satto Yadav and also found the skull fractured and after opening the scalp big clot were found on both the side o brain. However, the manner of occurrence, as alleged in the fardbeyan, has not been supported by the informant and in the evidence it has not been mentioned that who attributed the assault on the head and though the allegation made in the fardbeyan that it is only Kokai Yadav and Hari Yadav assaulted, but, the statement made in the fardbeyan is not an acceptable evidence to be relied upon and though in evidence in Court is quite contrary to the statement of the informant in the fardbeyan and he has attributed the role to all the seven accused persons for assaulting the victim and there is no whisper that who assaulted on head, hence, there is general and omni bus allegation which is quite contrary to the statement of the informant in the first information report, hence, on the basis of these evidence it is not proper to record conviction and in the facts and circumstance the appellants are entitled the benefit of doubt. 13. The order of conviction and sentence of Criminal Appeals (S.J.) No. 621 and 600 of 2013 recorded by the trial Court, is set aside and the appeals are allowed. Since, the appellants of Criminal Appeal (S.J.) No. 600 of 2013 are already on bail, they are discharged from the liabilities of their bail bonds. 14. The appellants of Cr. Appeal (SJ) No.621/13 are in jail, hence, they are directed to be released from bail forthwith, if not wanted in any other case. They are discharged from the liability of bails bonds.