JUDGMENT : This appeal is directed against the judgment of conviction and order of sentence dated 16.09.2005 passed by the then learned Additional Sessions Judge, Simdega in Sessions Trial No. 125 of 2001 whereby and whereunder the court having found all the ten appellants guilty for committing murder of Persuram Yadav after forming unlawful assembly and also for making an attempt on the life of the informant Sri Ram Yadav, Permeshwar Yadav and also Bhushan Yadav, convicted them for the offence punishable under Sections 302/149, 307/149 and 148 of the Indian Penal Code and sentenced them to undergo imprisonment for life for the offence punishable under Section 302/149 of the I.P.C. However, no separate sentence was passed either for the offence under Section 307/149 or under Section 148 of the Indian Penal Code. 2. The case of the prosecution is that on 06.08.2001 at about 3.00 p.m. Bhushan Yadav-grandson of the informant, Sri Ram Yadav-P.W.-1, Persuram Yadav (deceased) and Permeshwar Yadav (both sons of the informant) had gone to the market on a motorcycle. In course of their return when they reached near the house of Madan Yadav at about 5.30 p.m. all the appellants accosted them and started abusing. This was objected by the informant Sri Ram Yadav-P.W.-1. Upon it, the appellant-Nandu Yadav exhorted his four sons (all appellants) to kill them. Thereupon, the appellant Madan Yadav gave two ‘Tangi’ blows, one on the neck and other on the chest of Persuram Yadav, as a result of which he became injured and fell down on the ground. Thereafter, appellant Gosul Yadav inflicted ‘Chura’ injury on the person of Permeshwar Yadav. When the informant tried to intervene in the matter, he was assaulted by Sudhan Yadav by ‘Balua’. Said Sudhan Yadav also assaulted Bhushan Yadav. Thereupon, as per the case of the prosecution, dead body of Persuram Yadav was brought home and then the informant alongwith others went to Kurdag police station to inform the police. On receiving information one S.I., A.K. Singh came to the village and recorded the fardbeyan of the informant on 07.08.2001 at about 1.30 a.m., upon which a formal F.I.R. was drawn. 3. The I.O. (who has not been examined) when took up investigation, held inquest on the dead body of Persuram Yadav and prepared an inquest report (Exhibit-1). Thereupon, dead body was sent for post-mortem examination which was conducted by doctor-Subhash Tetarway (P.W.-12). 3. The I.O. (who has not been examined) when took up investigation, held inquest on the dead body of Persuram Yadav and prepared an inquest report (Exhibit-1). Thereupon, dead body was sent for post-mortem examination which was conducted by doctor-Subhash Tetarway (P.W.-12). On holding autopsy, the doctor did find following external injuries: (i) A sharp cut wound was seen on the right side of face extending from 2” behind the chin across the mandible to the base of right side of occiput. Size 10” x 4” x bone deep. A piece of angle of mandible was fractured and moved away with lower flap of skin. All major vessels on the right side of neck were cut. A piece of lobule of right ear was also cut and hanging with the skin. The wound was ante-mortem in nature. (ii) A sharp cut wound was seen on the chest extending from left margin of the sternum in the second intercostals space to the right and down to end around fourth intercostal space-size 11” x 3” x bone deep. Fracture of sternum as well as III, IV and V ribs. The doctor issued post-mortem examination report with an opinion that death was caused due to shock and haemorrhage, on account of aforesaid injuries caused by sharp cutting weapon. 4. Meanwhile, P.W.-13-doctor Jessica Dean, in charge Medical Officer, examined Bhushan Yadav, during which he made complaint of pain on the back as well as head. The nature of the injury was found to be simple. He did also examine Permeshwar Yadav and found following injuries: (i) Lacerated wound 2” x ½” x ½” over left side of the head. (ii) Abrasion 1” x ½” over left side of the trunk. According to the doctor, the injuries were caused by hard and blunt substance. The doctor proved the injury reports which have been marked as Exhibit-3 and 3/1. 5. After completion of the investigation, charge sheet was submitted against all the ten appellants, upon which cognizance of the offence was taken and when the case was committed to the Court of Session, appellants were put on trial. 6. During trial, the prosecution examined altogether thirteen witnesses. Of them, P.W.-1, the informant-Sri Ram Yadav, P.W.-2, Chintamani Mahkoor-wife of the informant, P.W.-3, Kanto Devi-wife of Permeshwar Yadav, P.W.-4-Bhushan Yadav, P.W.-5-Sulekha Kumari (daughter of Permeshwar Yadav), P.W.-6-Permeshwar Yadav have been examined by the prosecution as eye witnesses. 6. During trial, the prosecution examined altogether thirteen witnesses. Of them, P.W.-1, the informant-Sri Ram Yadav, P.W.-2, Chintamani Mahkoor-wife of the informant, P.W.-3, Kanto Devi-wife of Permeshwar Yadav, P.W.-4-Bhushan Yadav, P.W.-5-Sulekha Kumari (daughter of Permeshwar Yadav), P.W.-6-Permeshwar Yadav have been examined by the prosecution as eye witnesses. According to them, the deceased, Permeshwar Yadav and Bhushan Yadav on the day of occurrence had gone to the market. While they were returning from the market and reached near the house of Madan Yadav, appellants made them to stop there. Thereupon, they started abusing them. Meanwhile, the appellant Nandu Yadav gave two lathi blows to Persuram Yadav and asked his son Madan Yadav to bring ‘Balua, upon which Madan Yadav asked his son Guddu to bring ‘Balua’. He brought ‘Balua’ and gave it to Madan who gave one ‘Balua’ blow over the neck of Persuram, as a result of which his neck was almost severed with body. He fell down and thereupon Liladhar Yadav gave ‘Balua’ blow on the chest of Persuram, as a result of which he died instantaneously. In that course, Sudhan Yadav assaulted the informant-Sri Ram Yadav over his head and back whereas Gosul Yadav inflicted knife injury upon Permeshwar Yadav. P.W.-1 has also testified that Nandu Yadav had assaulted Bhushan Yadav-P.W.-4 with lathi whereas Bhushan Yadav-P.W.-4 has testified that it was Sudhan Yadav who had hit him with a piece of stone. P.W.-7-Keshav Yadav is a witness to the inquest. P.W.-8-Jaidhan Yadav, P.W-9 Ilias Kujur and P.W.-10-Rajendra Yadav did not support the case of the prosecution and thereby the prosecution has declared them as hostile. P.W.-11 has been tendered for cross examination. 7. On closure of the prosecution case, when the appellants were questioned under Section 313 of the Cr. P.C. about the incriminating materials/evidences appearing against them, they simply denied. Thereupon, the court having placed its reliance on the testimonies of the eye witnesses finding corroboration from the medical evidence, did find all the appellants guilty for committing murder of the deceased in furtherance of their common object. At the same time, they were also found guilty for making an attempt to commit murder of the informant-P.W.-1, P.W.-4 and P.W.-6 and, accordingly, recorded the order of conviction and sentence which is under challenge. 8. Mr. At the same time, they were also found guilty for making an attempt to commit murder of the informant-P.W.-1, P.W.-4 and P.W.-6 and, accordingly, recorded the order of conviction and sentence which is under challenge. 8. Mr. A.K. Chaturvedi, learned counsel appearing for the appellants submits that though Bhushan Yadav-P.W.-4 and Permeshwar Yadav-P.W.-6 and also the informant-P.W.-1 have claimed to be the eye witnesses but their testimonies are not consistent with each other which does suggest that they had not come with the true version of the occurrence and further testimony of those witnesses are not in consonance with the case as has been made out in the fardbeyan (Exht.-4) and thereby, the testimonies of the witnesses are not wroth reliable. In this regard, it was highlighted that according to the statement made in the fardbeyan it was Madan Yadav who had inflicted both the injuries on the person of the deceased but, all the witnesses who have claimed to have seen the occurrence had testified that the appellant Madan Yadav inflicted injury over the neck of the deceased whereas the appellant-Lilidhar Yadav had inflicted injury over the chest and thereby testimonies of the witnesses are not reliable. Further, it was submitted that so far as witnesses P.W.-2-Chintamani Mahkoor, P.W.-3-Kanto Devi and P.W.-5-Sulekha Kumari are concerned, though they have claimed to be the eye witnesses but, they in view of the testimony made in the cross-examination to the effect that when they reached to the place of occurrence they found Persuram dead and thereby they cannot be the eye witnesses and hence, no reliance can be placed on their testimony. But, the trial court did not consider the case in the right prospective and thereby judgment of conviction and order of sentence is fit to be set aside. 9. As against this, learned counsel appearing for the State submits that though there appears to be inconsistency in between the fardbeyan and the testimony of P.W.-1 as well as the testimonies of other witnesses but those inconsistencies are not on the material point and hence, it will have no adverse impact on the prosecution case. 9. As against this, learned counsel appearing for the State submits that though there appears to be inconsistency in between the fardbeyan and the testimony of P.W.-1 as well as the testimonies of other witnesses but those inconsistencies are not on the material point and hence, it will have no adverse impact on the prosecution case. In this regard, it was submitted that all the witnesses such as P.W.-1, P.Ws.-2, 3, 4, 5 and 6 have testified that while the deceased was returning home alongwith P.Ws-4 and 6 on a motorcycle and reached near the house of the appellant-Madan Yadav, they were accosted by the appellants and were abused. In that course, deceased Persuram was assaulted with lathi by the appellant Nandu Yadav, as a result of which he fell down from the motorcycle and thereupon appellant Madan Yadav, with a ‘Balua’ which was brought by Guddu from home, assaulted over the neck of the deceased then Liladhar Yadav gave Balua blow over the chest causing injuries which find corroboration from the medical evidence and thereby the testimonies of the witnesses cannot be discarded. In that event, the trial court after placing reliance on the testimonies of the eye witnesses did find the appellant guilty and thereby order of conviction and sentence never warrants any interference. 10. Having heard learned counsel for the parties and on perusal of record, we do find that the case of the prosecution is that while the deceased Persuram Yadav was returning home from the market alongwith P.W.-4-Bhushan Yadav and Permeshwar Yadav-P.W.-6 and reached near the house of Madan Yadav, they found appellants there. According to P.W.-1, P.W.-4-Bhushan Yadav and P.W.-6-Permeshwar Yadav the appellants having accosted them started abusing, meanwhile Nandu Yadav assaulted Permeshwar Yadav with lathi as a result of which he fell down. Thereupon, Nandu Yadav asked his son Madan Yadav to bring ‘Balua’, upon which Madan Yadav asked his son Guddu to bring ‘Balua’ who brought it and gave it to Madan and thereupon, Madan Yadav assaulted on the neck of Persuram and then Liladhar Yadav gave one ‘Balua’ blow over the chest. Thereafter, Sudhan Yadav assaulted informant P.W.-1 with ‘Balua’ whereas Gosul Yadav inflicted ‘Chura’ injuries upon Permeshwar Yadav. Thereafter, Sudhan Yadav assaulted informant P.W.-1 with ‘Balua’ whereas Gosul Yadav inflicted ‘Chura’ injuries upon Permeshwar Yadav. Apart from P.Ws.-4 and 6, P.W.-2-Chintamani Mahkoor, P.W.-3-Kanto Devi and P.W.-5-Sulekha Kumari have claimed to be the eye witnesses and they have also testified in the same manner as have been testified by P.Ws.-4 and 6. But, in the cross-examination P.W.-2 and also P.W.-3 did testify that when they reached at the place of occurrence they found the Persuram Yadav already dead. This piece of evidence sufficiently indicates that they were not the eye witnesses to the occurrence and, therefore, their names does not find mention in the fardbeyan given by the informant. Under the circumstances, they cannot be taken to be the eye witnesses to the occurrence and, therefore, their testimonies are not worth reliable. So far as P.W.-1-the informant is concerned, he has also testified in the same manner as has been testified by P.Ws-4 and 6. However, testimony of P.W.-1, does not find complete corroboration from the statement made in the fardbeyan. In this regard, it is stated that in the fardbeyan, P.W.-1 has stated that it was Madan Yadav who had inflicted both the injuries upon the deceased whereas he in his testimony has stated that the appellant-Madan Yadav gave ‘Balua’ blow over the neck of the deceased whereas the appellant Liladdhar Yadav had inflicted injury with ‘Balua’ over the chest. Not only, P.W.-1 has testified in that manner but P.W.-4 as well as P.W.-6 whose presence cannot be denied at the place of occurrence have also testified that it was Madan Yadav who gave ‘Balua’ blow over the neck whereas Liladhar Yadav gave ‘Balua’ blow over the chest. The testimonies of the witnesses namely P.Ws.-1, 4 and 6 get corroboration from the medical evidence as the doctor Subhash Tetarway-P.W.-12 during post mortem examination did find the injuries over the neck as well as chest being caused by hard and blunt substance. Thus it appears that the testimony of P.W.-1 is not in consonance with the statement made in fardbeyan relating to assault being made by only Madan Yadav but under the facts and circumstances stated above it may not be fetal for the prosecution as the informant on account of death of one of his son must be perturbed and thereby he may not be in a position to recollect the things at the time of giving fardbeyan. Thus, there has been no hesitation in accepting the testimonies of the P.Ws.-1, 4 and 6 that it was Madan Yadav and Liladhar Yadav who inflicted injuries on the person of the deceased resulting into his death. 11. Now the question does arise as to whether other appellants were sharing the common object or not? 12. We have already notices the case of the prosecution that while the deceased was returning alongwith P.Ws.-4 and 5 on a motorcycle, they were accosted by the appellants and were abused. In that course, Nandu Yadav asked Madan Yadav to fetch Balua, upon which, Madan asked his son Guddu to bring Balua, who brought it and from that Balua the deceased was assaulted with. Therefore, at the time when the appellant are said to have accosted the deceased and other none of the accused person were having any dangerous weapon with them and as such at that time they had had no common object to kill. Only thereafter when ‘Balua’ was brought Madan Yadav and Liladhar Yadav assaulted the deceased resulting into his death and thereby the appellants other than Madan Yadav and Liladhar Yadav could not be held guilty for committing murder of the deceased. 13. Coming further, it be recorded that it is also the case of the prosecution as has been testified by P.Ws.-1, 4 and 6 that in that course Sudhan Yadav assaulted the informant with Balua whereas Gosul Yadav inflicted Chura injury upon the Permeshwar. Further, Bhushan Yadav as per evidence of P.W.-1 was assaulted by lathi by Madan Yadav but as per the testimony of P.W.4, he was chased by Sudhan Yadav who threw stone which hit him. Thus, there appears to be no consistency in between the testimony of P.Ws.-1 and 4 with respect to assault being made upon P.W.-4. Further, it be reiterated that according to the witnesses Permeshwar was inflicted with Chura injury but as per the testimony of P.W.-13 no sharp cut injury was there on the person of Permshwar rather the injury was simple in nature caused by hard and blunt substance and thereby the case of the prosecution that the Gosul Yadav inflicted Chura injury to Permeshwar (P.W.-6) cannot be accepted. Similarly, case of prosecution that P.W.-1 was assaulted by Sudhan Yadav cannot be accepted in absence of any injury report of P.W.-1 being brought on record. 14. Similarly, case of prosecution that P.W.-1 was assaulted by Sudhan Yadav cannot be accepted in absence of any injury report of P.W.-1 being brought on record. 14. Thus, under the circumstances, it can be said that the prosecution has failed to establish that the aforesaid appellants had assaulted those persons. Moreover, injury was never there either on the person of Permeshwar or Bhushan Yadav –P.W.-4 which can cause danger to life and thereby the trial court committed error in convicting the appellant for the offence punishable under Section 307/149 and hence order of conviction and sentence recorded against all the appellants under Sections 307/149 and also under Section 148 of the Indian Penal Code is hereby set aside. Further the order of conviction and sentence passed under Section 302/149 against all the appellants except the appellant Madan Yadav and Liladhar Yadav is set aside. 15. Thus, in the fact and circumstances, we do find that it was Madan Yadav and Liladhar Yadav who did assault deceased-Persuram Yadav with Balua causing injuries, resulting into his death and thereby they are found guilty for the offence punishable under Section 302/34 instead of 302/149. Accordingly, order of conviction is altered from Section 302/149 to Section 302/34 of I.P.C. The sentence awarded against them shall remain intact. So far other appellants are concerned they all are acquitted of all the charges under Section 302/149, 307/149 and 148 of the Indian Penal Code. 16. Accordingly, the bail bond furnished by Liladhar Yadav, who is on bail, is hereby cancelled and ordered to be taken into custody for serving out the sentence. 17. In the result, this appeal is allowed but in part as indicated above.