JUDGMENT JUSTICE SAMARENDRA PRATAP SINGH Under challenge, in the present appeal, is the judgment and order, dated 23.01.1993, passed, in Sessions Trial No. 612 of 1989, by learned 7th Additional Sessions Judge, Patna, convicting the accused-appellants, namely, (i) Baiju Rai, (ii) Shanker Rai, (iii) Krishna Prasad @ Srikant Prasad, (iv) Yogendra Rai, (v) Rajeshwar Rai, (vi) Prem Rai, (vii) Brijnandan Rai and (viii) Laddu Rai, under Sections 302 and Section 323 read with Section 34 of the Indian Penal Code. Following their conviction, under Section 302 read with Section 34 of the Indian Penal Code, all the accused-appellants have been sentenced to suffer imprisonment for life and following their conviction, under Section 323 read with Section 34 of the Indian Penal Code, all the accused-appellants aforementioned have been sentenced to undergo rigorous imprisonment for six months each, both the sentences having been directed to run concurrently. 2. The case of the prosecution, as unfolded by the First Information Report lodged by the informant, Girija Devi (PW 6), may, in brief, be described as under: (i) On 18.07.1988, the informant’s husband, Ram Swaroop Singh, and her son, Narmedeshwar Singh, were ploughing their land with the help of a labourer, Gajadhar Rai. They were re-setting ridge of their land, which was changed by the accused having common boundary by stretching on their land. Her husband and son were trying to restore the old position. (ii) The informant (PW 6) also came to the field carrying lunch for her husband and son. At about 3:00 PM, accused Krishna Rai and accused Baiju Rai came to the filed and asked the husband and the son of the informant not to meddle with the boundary. The informant’s son did not relent as, according to him, it was the accused, who had caused mischief by rearranging the boundary of the land. However, the informant and others, who had gathered in the meantime, interfered and pacified the accused. (iii) The accused Krishna Rai and Baiju Rai went back to their houses. After some time, the informant, along with her husband and son, Narebeshwar Singh, set for their house by the paine (a narrow canal). When they had hardly covered some distance, that accused Baiju Rai, Krishna Rai, Prem Rai, Shankar Rai, Rajeshwar Rai, Laddu Rai, Brijnandan Rai, Yogendra Rai came armed with lathis and surrounded them. After some time, the informant, along with her husband and son, Narebeshwar Singh, set for their house by the paine (a narrow canal). When they had hardly covered some distance, that accused Baiju Rai, Krishna Rai, Prem Rai, Shankar Rai, Rajeshwar Rai, Laddu Rai, Brijnandan Rai, Yogendra Rai came armed with lathis and surrounded them. Prem Rai and Rajeshwar Rai assaulted the informant’s husband with lathi on his head and as a result thereof, he fell on the ground. Thereafter, other accused too assaulted him with lathis. The accused also assaulted informant’s son, Narmedeshwar Singh, with lathis. The informant’s husband became unconscious. On seeing nearby people coming, the accused made their way. (iv) The informant, with the help of her co-villagers, brought her injured husband and son for treatment to Maner Hospital, where her fardebyan was recorded by PW 8 (Awadhesh Kumar Singh), who, too, had arrived at the hospital on receiving information of a fight between two groups. On the basis of the fardbeyan of PW 6, Maner Police station Case No. 163 of 1988 was registered, under Sections 147/323/307 of the Indian Penal Code, against the accused aforementioned. (v) Since the informant’s husband, Ram Swaroop Singh, succumbed to the injuries sustained by him at the hands of the accused, Section 302 of the Indian Penal Code was, later on, added. (vi) During investigation, inquest was held over Ram Swaroop Singh’s dead body, which was also subjected to post mortem examination, and, on completion of investigation, a charge sheet was laid, under Sections 147/148/302/323 of the Indian Penal Code, against all the accused aforementioned. 3. At the trial, when charges, under Sections 302 and 323 read with Section 34 of the Indian Penal Code, were framed against the accused aforementioned, they all pleaded not guilty to the charges. 4. In support of their case, prosecution examined altogether 8 (eight) witnesses including the Investigating Officer. The accused were, then, examined under Section 313 (1)(b) of the Code of Criminal Procedure, 1973, wherein the accused denied that they had committed the offences, which were alleged to have been committed by them, the case of the defence being that of denial. 5. Having, however, found the accused aforementioned guilty of the offences, which they stood charged with, learned trial Court convicted them accordingly and passed sentences against them as mentioned above. 6. 5. Having, however, found the accused aforementioned guilty of the offences, which they stood charged with, learned trial Court convicted them accordingly and passed sentences against them as mentioned above. 6. Aggrieved by their conviction and the sentences, which has been passed against them, the accused, who stands convicted, have preferred this appeal. 7. We have heard Mr. Ajay Kumar Thakur, learned Counsel, appearing as Amicus Curiae, and Mr. Ajay Mishra, learned Additional Public Prosecutor, appearing on behalf of the State. 8. While considering the present appeal, Let us, first take note of the evidence of Dr. Ajay Kumar (PW 7), who has examined the informant’s husband, Ram Swaroop Singh, and her son, Narmedeshwar Singh. It is in the evidence of PW 7 that on 18.07.1988, at 04:25 PM, he (PW 7) examined Ram Swaroop Singh and found as follows: “(i) Depressed fracture of skull. (ii) Abrasion 3 ½” x laceration left side of face. (iii) Lacerated wound ½” x ½” on the left side of waist.” 9. In the opinion of the doctor, the injuries sustained by Ram Swaroop Singh was caused by hard blunt substance, such as, lathi, and as there was sign of head injury, the injured Ram Swaroop Singh was referred to Patna Medical College and Hospital, Patna, for further treatment. The injury report, with respect to the injured Ram Swaroop Singh has been proved and marked as Exhibit-3. 10. It is also in the evidence of the doctor (PW 7) that on the same day, i.e. on 18.07.1988, at 04:30 PM, he examined informant’s son, Narmedeshwar Singh, and found following injuries: (i) Bruise 4” x ½” on back (ii) Bruise 2” x 1/2” on the back (iii) Bruise 2” x ½” on back (iv) Tendon over chest. 11. In the opinion of the doctor (PW 7), all the injuries were simple in nature, caused by hard and blunt substance, such as, lathi. The injury report of the informant’s son, Narmedeshwar Singh, has been proved and marked as Exhibit-3/1. 12. Keeping in view the fact that all the injuries claimed to have been found on the informant’s husband, Ram Swaroop Singh (since deceased) and her son, Narmedeshar Singh, were, according to the medical evidence on record, caused by a hard blunt substance, let us, now deal with the evidence of Dr. 12. Keeping in view the fact that all the injuries claimed to have been found on the informant’s husband, Ram Swaroop Singh (since deceased) and her son, Narmedeshar Singh, were, according to the medical evidence on record, caused by a hard blunt substance, let us, now deal with the evidence of Dr. B. D. Prasad (PW 3, who had admittedly conducted, on 19.07.1988, at 11:00 AM, at Patna Medical College and Hospital, Patna, post mortem examination on the dead body of Ram Swaroop Singh. According to this witness (PW 3), on conducting post mortem examination, he found as follows: “The head was bandaged. The left parietal region was stitched. Size of the stitched wound was 3” x 1”. Left cheek ante mortem abrasion was found. Abrasion was of the size 1” x ½”. Left lateral thigh upper region stitched wound of size 1” x ½” was found. On dissociation The compound and depressed fracture of left parietal and temporal bone of size 2” x 2” was found. The sub-dural and extra dural haematoma was found. The stomach contained semi digested food 2 ounce. The urinary bladder was found empty. The lungs, liver, spleen and kidneys were fond congested.” 13. In the opinion of the doctor (PW 3), death was due to the head injury, caused by hard blunt substance, such as, lathi. 14. Neither the finding of the doctor nor his opinion, with regard to cause of death of the said deceased and/or his opinion with regard to the nature of weapon, which might have been used, for causing assault on, and death of, the said deceased, were disputed either by the prosecution or by the defence. This apart, we, too, do not notice anything inherently incorrect or improbable in the evidence given by the doctor (PW 3). 15. So situated, it becomes clear that Ram Swaroop Singh’s death was homicidal in nature. 16. The question, however, remains: whether the accused-appellants had caused the death of Ram Swaroop Singh in furtherance of their common intention? 17. On the strength of the evidence on record, the learned Additional Public Prosecutor, appearing for the State, submits that the prosecution has duly proved the factum of murder, time of occurrence, place of occurrence and manner of occurrence. 18. The case of the defence is that the prosecution has utterly failed to bring the charges home. Elaborating the submissions, Mr. On the strength of the evidence on record, the learned Additional Public Prosecutor, appearing for the State, submits that the prosecution has duly proved the factum of murder, time of occurrence, place of occurrence and manner of occurrence. 18. The case of the defence is that the prosecution has utterly failed to bring the charges home. Elaborating the submissions, Mr. Ajay Kumar Thakur, learned Amicus Curiae, submits that the evidence of witnesses materially contradicts each other and even the medical evidence does not support the prosecution’s case. 19. In support of his above submissions, Mr. Ajay Kumar Thakur submits that as many as ten persons assaulted the deceased, whereas post mortem report shows only two injuries on his person, one on the head and the other on left side of waist, which, too, was of ½” x ½” size. 20. In the backdrop of the submissions of the defence, we would now examine whether the prosecution has proved its case beyond all doubt. 21. Coming to the evidence of PW 6 (Girija Devi), who is the informant, we notice that according to her, On 18.07.1988, the informant’s husband, Ram Swaroop Singh, and her son, Narmedeshwar Singh, were mending the ridge of their field, which was altered by accused-appellant Baiju Rai, whose field was adjacent to the field of the informant. It is in the evidence of PW 6 that when she reached the field taking food for her husband and her son, she saw accused-appellants, Baiju Rai and Krishna Prasad, stopping the informant’s husband and her son from mending the ridge of their field and the accused-appellants also abused the son of the informant and the altercation was pacified at the intervention of the co-villagers of the informant. It is further in the evidence of the informant (PW 6) that when she, along with her husband and son, was returning home through paine and reached near the boring, accused-appellants, Baiju, Prem Rai, Rajeshwar Rai, Krishna Rai, Laddu Rai, Brijnandan Rai, Yogendra Rai and Shanker Rai, came there, armed with lathis, surrounded the informant’s husband and her son and, then, started assaulting them. It is in the evidence of the informant (PW 6) that accused-appellants, Prem Rai and Rajeshwar Rai, assaulted the informant’s husband on his head injuring him on his head, informant’s husband fell on the ground and, then, all the accused-appellants indiscriminately assaulted the husband of the informant and the informant’s son. It is also in the evidence of PW 6 that treating the husband of the informant as dead, all the accused-appellants took to their heels and the informant, with the help of her co-villagers, took her husband and her son to the hospital, where police reached and recorded her fardbeyan. The informant’s husband was referred to Patna Medical College and Hospital, Patna, where he succumbed to the injuries. 22. Closely in tune with the evidence of PW 6 (the informant) is the evidence of PW 2, Narmadeshwar Singh, son of the informant. 23. However, the Investigating Officer, in paragraph 12 of the disposition, has deposed that PW 2, in his earliest statement, stated before him differently. According to the prosecution, this witness in his statement before police has not stated that the accused persons assaulted his father with lathi; rather, his statement was that accused Laddu Rai had assaulted his father with bhala (i.e., spear) and also assaulted him (PW 2) with bhala, which is not the prosecution’s case in the First Information Report. PW 2 has evidently tried to improve the prosecution’s case and has retracted from his earlier version. Hence, we do not find his evidence at all reliable. 24. PW 4 (Sheela Devi) is the wife of PW 2 (Narmedeshwar Singh). It is in her evidence that on the fateful day, on hearing hulla, she came to her Boring and saw that the accused-appellants, armed with lathis, had surrounded her husband, Narmedeshwar Singh, and her father-in-law, Ram Swaroop Singh, and the accused persons assaulted her father-in-law by means of lathis and as a result thereof, her father-in-law, Ram Swaroop Singh, fell on the ground and became unconscious. It is in the evidence of PW 4 that the accused persons assaulted her husband, too, and fled away towards Mohanpur and her co-villagers took the injured to the doctor on cot. 25. In paragraph 9 of her evidence, PW 4 has deposed that her mother-in-law (PW 6) told her that the accused persons, who had assaulted her father-in-law, could not be local persons. 25. In paragraph 9 of her evidence, PW 4 has deposed that her mother-in-law (PW 6) told her that the accused persons, who had assaulted her father-in-law, could not be local persons. In paragraph 5, she has deposed that after hearing hulla, she went to the paine alone and that her mother-in-law (P.W.6) and uncle-in-law (P.W.5) came thereafter. According to her, the mar pit started only after she had arrived at the place of occurrence. When her attention was drawn to her statement made before the police, wherein she is said to have stated that the accused assaulted her father-in-law with farsa and bhala, she showed ignorance and stated that she does not remember the matter correctly. In cross examination, she admits that a counter case has also been filed by the other side. However, she replied in the negative that her husband and her father-in-law had assaulted the accused Srikant and Baiju. She, in cross-examination, once again, asserted that she was the first to rush to the place of occurrence after hearing hulla and only thereafter, P.W. 6, Girija Devi, wife of the deceased, and P.W. 5, brother of the deceased, came from the house. 26. If the statement of P.W. 4 is to be believed, the version of P.W. 6, in the FIR, and in her evidence before the Court become doubtful. According to PW 4, she was the first to rush to the place of occurrence after hearing hulla and only thereafter, PW 6(Girija Devi), wife of the deceased, and P.W.5, the brother of the deceased, came from the house. Thus, the evidence of PW 4 materially contradicts the statement of PW 6. 27. Turning to the evidence of PW 5 (Rajdhari Rai), full brother of the deceased, we find that in his examination-in-chief, PW 5 has deposed that the accused persons assaulted the deceased, Ram Swaroop Singh, and Narmadeshwar Singh (PW 2),with lathis, near the Boring. On hearing hulla, he (PW 5), along with Girija Devi (P.W.6), wife of Ram Swaroop Singh arrived there followed by Sheela Devi (PW 4), who came later on. He did not deny that in counter case, he is an accused. He admits that in the counter case, Dr. Ajay Kumar, in his evidence, stated that Baiju and Krishna had also sustained injuries. 28. He did not deny that in counter case, he is an accused. He admits that in the counter case, Dr. Ajay Kumar, in his evidence, stated that Baiju and Krishna had also sustained injuries. 28. On careful consideration of the entire evidence, we are of the view that there are glaring inconsistencies in the evidence adduced by the prosecution. The medical evidence does not support the prosecution’s case. As per the prosecution’s case, ten persons had assaulted the accused with lathis, whereas he sustained only two injuries, one on the head and the other on the waist. It is difficult to comprehend that a person would sustain only two injuries if he is assaulted by lathis by ten persons. Besides this, we find that as per prosecution’s case, set out by P.W.6, as informant, in the First Information Report, she was all along with the deceased when mar pit took place. On the other hand, her daughter-in-law has deposed that on hulla, she was the first to reach the place of occurrence followed by her mother-in-law (P.W.6) and her uncle-in-law (P.W.5). According to P.W. 5 (Rajdhari Rai), P.W. 6 came along with him at the place of occurrence followed by Sheela Devi (P.W.4). Thus, we find that the evidence of each of the witnesses, who has claimed to be eye-witness, contradicts the other and leaves one guessing as to who was the one, who arrived first at the place of occurrence and who really followed the one, who had reached first. 29. In view of the quality of evidence adduced by the prosecution, we are clearly of the view that the prosecution could not have been held to have proved its case beyond all the reasonable doubt. 30. Situated thus, we are clearly of the view that in the facts and attending circumstances of the present case, the appellants ought to have been accorded, at least, benefit of doubt. 31. In the result and for the forgoing reasons, we allow these appeals. The impugned conviction of the accused-appellants and the sentences passed against them by the judgment and order, under appeal, are hereby set aside. The accused-appellants are held not guilty of the offences, which they stand convicted of, and they are hereby acquitted of the same under benefit of doubt. 32. As the appellants are on bail, their bail bonds are hereby cancelled and their sureties shall stand discharged. The accused-appellants are held not guilty of the offences, which they stand convicted of, and they are hereby acquitted of the same under benefit of doubt. 32. As the appellants are on bail, their bail bonds are hereby cancelled and their sureties shall stand discharged. 33. Let the Amicus curiae be paid Rs.5000/-. 34. Registry shall, forthwith, send a copy of this judgment and order to the learned trial Court along with the Lower Court Records. I.A.Ansari,J.: I agree.