JUDGMENT : VINOD KUMAR SINHA, J. 1. The appellants Dayali Singh, Surendra Singh, Harendra Singh, Ajay Kumar Singh, Anand Kumar Singh, Pramod Kumar Singh, Dudhnath Sah and Sheoji Sah in three appeals have been convicted under Sections 148 and 324 of the Indian Penal Code and appellants Swaminath Prasad Sah, Prabhunath Sah and Achay Kumar Singh have been convicted under Sections 147 and 323 IPC, besides that appellant Ajay Kumar Singh has also been convicted under Section 304 Part II IPC by the judgment and order dated 25.1.2003 passed by Sri A.P. Shrivastava, 1st Additional Fast Track Court, Siwan in Sessions Trial No. 118/88/136/2001 and sentenced the appellants convicted under Sections 148 and 324 IPC to undergo rigorous imprisonment for two years on each count, also sentenced the appellant Ajay Kumar Singh to suffer R.I. for seven years and a fine of Rs. 2000/- with default clause under Section 304 Part II IPC and sentenced appellant Achay Kumar Singh to undergo R.I. for one year under Sections 147 and 323 IPC and sentenced appellants Swaminath Sah, Prabhunath Sah and Achay Kumar Singh to undergo R.I. for one year under Sections 147 and 323 IPC. 2. As all the appeals arise out of the same impugned judgment and order they have been taken up together and are being disposed of by this common judgment for the sake of convenience. 3. The prosecution case, based on the fardbeyan (Ext.3) of the informant Ram Surat Sah (PW-6), recorded by S.I. of Police Nand Lal Singh of Maharajganj Police Station on 30.5.1986 at 7.30 A.M. at Maharajganj hospital, is that on 30.5.1986 at about 5 A.M. while informant Ram Surat Sah was in the bed, one Chandeshwar Singh (since died) was passing through the room and Chandeshwar Singh coughed, on which one Fagu Sah (PW-4) has also coughed which caused annoyance to Chandeshwar and Chandeshwar expressed that he would teach a lesson to Fagu Sah on his coughing and thereafter as many as 12 accused persons arrived in front of house of the informant and his brother Fagu Sah and informant was assaulted by Chandeshwar and Akshai Kumar Singh with lathi, whereas appellant Dudhnath Sah assaulted him with farsa and appellant Pramod Kumar Singh assaulted him with Barchhi on his head. Further case of the prosecution is that mother of informant Jiuti Devi was standing at the door and seeing her appellant Ajay Kumar Singh assaulted her with back portion of farsa on her head causing injury to her. It is also the prosecution case that accused persons also assaulted Fagu Sah, brother of informant, and when Sheo Raut, a villager came to pacify the matter he was also assaulted by Akshai Kumar Singh and Chandeshwar Singh with lathi causing fracture injuries on the persons of Fagu Sah and Sheo Raut and appellant Dudh Nath Sah had also hurled brick bats on Sheo Raut. It is further case of prosecution that appellant Ajay Kumar Singh hurled bomb. In the FIR Ram Ashare, Khub Lal Yadav, Babu Ram Mahto and Ram Bilash Mahto were named as eye-witnesses to the occurrence. 4. On post investigation charge sheet has been submitted, cognizance of the offence has been taken and thereafter the case has been committed to the court of sessions. It appears that accused Chandeshwar Singh died before that, as such, case against him was abated and the present case ultimately came to the file of Sri A.P. Srivastava, the then 1st Additional Fast Track Court, Siwan for trial and disposal. 5. During trial altogether eight witnesses have been examined on behalf of prosecution and they are PW-1 Ram Bilash Koeri, who is seizure list witness and also claims to be eye-witness to the occurrence, PW-2 Sheo Raut, who is injured and eye-witness to the occurrence, PW-3 Madan Sah, who is inquest report witness, PW-4 Fagu Sah, who is injured and claims to be eye-witness to the occurrence, PW-5 Sublal Yadav, who also claims to be eye-witness to the occurrence, PW-6 Ram Surat Sah, who is informant and injured, PW-7 Dr. Anil Kumar Verma, who conducted post mortem examination and PW-8 is Dr. N.K. Prasad, who has treated the injured. 6. On behalf of prosecution the following documents have been brought on record certified copy of inquest report (Ext.1), signature of witnesses on fardbeyan (Ext.2), signature of witnesses on seizure list (Ext.2/2), signature of informant on fardbeyan (Ext.2/4), Fardbeyan (Ext.3), Inquest Report (Ext.4), Post Mortem report (Ext.5), Injury reports of Jiuti Devi, Sheo Rout, Ram Surat and Fagu Sao (Exts.6 to 6/3). 7. On behalf of defence, no ocular evidence has been adduced. 7. On behalf of defence, no ocular evidence has been adduced. However, following documents have been brought on record certified copies of injury reports of the injured (Exts.A to A/5), original certificate of Martic of Sheoji Sah issued by Bihar School Examination Board, Patna dated 30.7.99 (Ext.B), certified copy of FIR of Maharajganj P.S. Case No. 67/86 and Maharajganj P.S. Case No. 9/86 (Exts.C to C/1), certified copy of Complaint Petition, Ajay Kumar Singh vs. Ramayan Singh being Complaint Case No. 1/86 (Ext.D) and Map (Ext.E). 8. Learned trial court on conclusion of trial has convicted the appellants under Sections 323, 324, 147 and 148 IPC as stated above and also convicted appellant Ajay Kumar Singh under Section 304 Part-II IPC and sentenced them as stated above. 9. Contention of learned amicus curiae is that learned trial court has failed to consider this aspect of the matter that there are injuries on the persons of appellants and one of the injuries on Ajay Kumar Singh was grievous in nature, however, injuries were not explained by the prosecution, that clearly shows that prosecution is not coming with clean hand and suppressing the material fact and further there is case and counter case between the parties. Further submission is that learned trial court has failed to consider that occurrence took place at the spur of moment and even according to prosecution there is coughing and counter coughing and evidence discloses a free fight between the parties and in such a situation some assault was made by appellants side in the right of their private defence and even appellant Ajay Kumar Singh though caused injuries during scuffle on head of Jiuti Devi but he used the butt portion of farsa, in such a situation it is not possible to hold who is aggressor, hence appellants cannot be convicted under Sections 147 and 148 IPC and no case is made out even under Section 304 Part II IPC, at best a case under Section 325 IPC is made out against appellant Ajay Kumar Singh. 10. It is also the contention of learned counsel for the appellants that there are several discrepancies in the evidence and moreover all the witnesses are related and inimical witnesses and in such a situation their evidence does not inspire confidence and hence, in totality the conviction is also not sustainable. 11. 10. It is also the contention of learned counsel for the appellants that there are several discrepancies in the evidence and moreover all the witnesses are related and inimical witnesses and in such a situation their evidence does not inspire confidence and hence, in totality the conviction is also not sustainable. 11. On the other hand, learned counsel for the State has strongly defended the judgment and contention of learned counsel for the State is that there are consistent evidence available on record that the accused persons have assaulted the injured persons and Jiuti Devi due to which she succumbed to the injuries, their evidence on the manner of occurrence is corroborated by the injuries found on the persons of injured, who support the prosecution evidence. Further contention is that it is settled law that the evidence of related and interested witness cannot be brushed aside on the ground that they are related and interested witnesses rather principle is that such evidence requires close scrutiny and has to be dealt with caution, whereas in the present case their evidence is consistent, corroborated by Medical evidence and there is absolutely nothing in the evidence to discredit their evidence, hence their convictions under Section 304 Part-II, 324, 323, 147 and 148 IPC are just and proper and do not require any interference. 12. In the background of rival submissions the evidence adduced on behalf of both sides are being evaluated by this Court. In this case three persons have received injuries, including the informant Ram Surat Sah (PW-6), Fagu Sah (PW-4), Sheo Raut (PW-2) besides Jiuti Devi (deceased) and they were treated by the Doctor (PW-8) and his evidence discloses that he found the following injuries on the person of Jiuti Devi:- (i) One lacerated wound 3” x ¼” x bone deep on surface of scalp. (ii) One swelling with echymosis on the front bone diffuse in nature. Opinion of doctor is that the injuries on the person of Jiuti might have been caused by back portion of farsa. His evidence also discloses that he has also examined injured Sheo Raut and found the following injuries: (i) One diffuse swelling with echymosis on left shoulder. (ii) One lacerated wound 1” x ¼” x ¼” on frontal surface of scalp. (iii) One lacerated wound ½” x ½” x ¼” on the occipital surface of scalp. His evidence also discloses that he has also examined injured Sheo Raut and found the following injuries: (i) One diffuse swelling with echymosis on left shoulder. (ii) One lacerated wound 1” x ¼” x ¼” on frontal surface of scalp. (iii) One lacerated wound ½” x ½” x ¼” on the occipital surface of scalp. Opinion of Doctor is that the injuries were simple in nature and were caused by hard and blunt substance, may be lathi. This witness has also examined Ram Surat Sah and found the following injuries: (i) One incised wound 2” x ¼” x ¼” on the parietal surface of the scalp on right side. (ii) One incised wound 1½” x ¼” x ¼” on the parietal surface of scalp on left side. (iii) One penetrating wound ½” x ¼” x ¼” (depth) on right thigh. (iv) One penetrating wound ¼” x ¼” x ¼” on the right side of chest. (v) One lacerated wound ¼” x ¼” x ¼” on the right finger of right hand. (vi) One swelling with echymosis 3” x ½” on left shoulder. Doctor has opined that injuries are simple in nature and Injury Nos. (i) and (ii) were caused by sharp cutting weapon, may be by farsa while Injury Nos. (iii) and (iv) were caused by sharp penetrating weapon, may be by bhala and Barchhi. The Doctor has also examined injured Fagu Sah and found the following injuries: (i) Incised wound 2” x ¼” x ¼” on the parietal surface of scalp on right side. (ii) Incised wound 1” x ¼” x ¼” on the parietal surface on scalp on left side. (iii) Fracture of left forearm in the surface. (iv) One penetrating wound ¼” x ¼” x ¼” on the left cheek. (v) One swelling with echymosis 2” x ½” on the left leg. (vi) One diffuse swelling with echymosis on left shoulder. (vii) One diffuse swelling with echymosis on right elbow joint. (viii) One lacerated wound ¼” x ¼” x ¼” on the left forearm. Doctor has opined that Injury No. (iii) was grievous and other injuries were simple in nature. 13. (vi) One diffuse swelling with echymosis on left shoulder. (vii) One diffuse swelling with echymosis on right elbow joint. (viii) One lacerated wound ¼” x ¼” x ¼” on the left forearm. Doctor has opined that Injury No. (iii) was grievous and other injuries were simple in nature. 13. Evidence of PW-8 further discloses that on the same day he examined Chandeshwar Singh, one of the co-accused, Akshai Kumar Singh, Anand Kumar Singh, Ajay Kumar Singh and Surendra Singh, vide Exts.A, A/1, A/2, A/3, A/4 and A/5 respectively on 30.5.1986 and he has found the following injuries: “Chandeshwar Singh (i) One lacerated wound 3” x ¼” x ¼” on the parietal surface of the scalp. (ii) One stitch lacerated wound ½” x ¼” x ½” on the lower portion of the neck surrounded upon the chest on left side. (iii) One diffuse swelling with echymosis on the left elbow joint. (iv) One incised wound ½” x ¼” x ¼” on the right finger and little finger of right hand. (v) One diffuse swelling on the left thumb. (vi) One diffuse swelling on right shoulder joint. Injury No. (i) was possible by sharp cutting weapon, may be Farsa and injury no. (ii) was possible by sharp portion of weapon, may be by bhala and other injuries were caused by hard and blunt substance. Nature simple. Akchay Kumar Singh (i) One lacerated wound ½” x ¼” x ¼” on the parietal surface of the scalp. (ii) One diffuse swelling on the left elbow joint. (iii) One diffuse swelling with echymosis on left shoulder. (iv) One diffuse swelling with echymosis on right elbow. All the injuries were simple in nature. Injury No. (i) was caused by sharp cutting weapon, may be by Farsa and other injuries were caused by hard and blunt substance, may be by lathi. Anand Kumar Singh (i) One diffuse swelling with echymosis on the left chest. Nature simple. Injury was caused by hard and blunt substance, may be by lathi. Ajay Kumar Singh (i) Incised wound 2½” x ¼” x ¼” on the parietal surface of the scalp. (ii) Dislocation of the middle finger of both hand at metacarpoflabbal point. (iii) Incised wound ¼” x ¼” x skin deep on the ring finger. (iv) One diffuse swelling on the back of chest. (v) One diffuse swelling on the parietal surface of left hand. (ii) Dislocation of the middle finger of both hand at metacarpoflabbal point. (iii) Incised wound ¼” x ¼” x skin deep on the ring finger. (iv) One diffuse swelling on the back of chest. (v) One diffuse swelling on the parietal surface of left hand. (vi) One swelling with echymosis 3½” x ½” on right thigh. Injury No. (ii) is grievous in nature and rests are simple in nature. Injury No. (i) on the person of Ajay Kumar Singh might have been caused by sharp cutting weapon, may be Farsa. Injury Nos. (ii), (iv), (v) and (vi) were caused by hard and blunt substance, may be by lathi. Injury No. (iii) was caused by sharp cutting weapon. Pramod Kumar Singh (i) One diffuse swelling with echymosis on right thumb. (ii) One diffuse swelling with echymosis on the right knee joint. (iii) One diffuse swelling on right side of the chest. (iv) One swelling on the back of chest. Injuries were caused by hard and blunt substance, may be by lathi. Nature simple. Surendra Singh Son of Rama Shankar Singh - one swelling with echymosis and simple in nature on left eye. Injury was caused by hard and blunt substance, may be by lathi.” Nature simple. 14. PW-7 is the Doctor, who has conducted post mortem examination on the person of Jiuti Devi and found the following: (i) Stitched wound, margin (irregular, lacerated, size 3” x bone deep on right side of skull, parietal region. (ii) On dissection, blow and blow clots beneath the scalp with linear fracture of right parietal bone was noticed and right parietal temporal surface was found separated maligned, on the right side of skull was stained with blow and blow clots, hemorrhage with blow clots inside brain matted on the right side, were noticed. Doctor has opined that death was caused due to head injuries, hemorrhage and shock. Doctor opined that injury might have been caused by hard and blunt substance like back portion of farsa. 15. Defence has also come with a counter case, Ext.C registered on the fardbeyan of appellant Anand Kumar Singh at his darwaja, recorded by Officer-in-charge, Maharajganj P.S. that while his father Chandeshwar Singh coughing after easing himself, he was caught by the appellants, Fagu Sah and others and on hulla, the appellants went there and Chandeshwar Singh and appellants were assaulted. Defence has also come with a counter case, Ext.C registered on the fardbeyan of appellant Anand Kumar Singh at his darwaja, recorded by Officer-in-charge, Maharajganj P.S. that while his father Chandeshwar Singh coughing after easing himself, he was caught by the appellants, Fagu Sah and others and on hulla, the appellants went there and Chandeshwar Singh and appellants were assaulted. PW-8 Doctor had found injuries on the six persons from appellants side and appellants have also brought on record injury reports of injured as Exts.A to A/5, which have been proved by PW-8 Dr. N.K. Singh. Apart from that certified copy of FIR of Maharajganj P.S. Case No. 67/86, which is counter case to the present case, and certified copy of Maharajganj P.S. Case No. 9/86 lodged by PW-4 Fagu Sah have also been brought on record as Exts.C-C/1. Ext.D is the complaint petition filed by appellant Ajay Kumar Singh vs. Ramayan Singh, which is counter case with respect to the same occurrence. 16. Documents discussed above clearly indicate that there is case and counter case between the parties and other cases are also pending between the parties and appellants had also received injuries, including grievous injuries. 17. On perusal of the evidence of prosecution witnesses it appears that PW-6 is the informant of this case and his evidence disclosed that while accused Chandeshwar Singh coughing his brother Fagu was also coughing, which caused annoyance to Chandeshwar and he threatened him to teach him a lesson. Thereafter he came back to the house and again came along with the accused appellants. He has named all the accused appellants armed with various arms. His evidence further shows that Chandeshwar Singh assaulted him on right hand finger by lathi and appellant Akshai Kumar Singh assaulted him by lathi and Dudh Nath Sah assaulted him with farsa on his head causing injury to him, accused Pramod Kumar Singh assaulted him with barchhi on chest and accused Surendra Singh by bhala on his right thigh. Further his evidence disclosed that when his brother Fagu came to rescue him Chandeshwar Singh assaulted him by lathi on right hand and appellant Akshai Singh assaulted him with lathi on his shoulder. He has stated that appellant Dudh Nath dealt him with Farsa on his head and accused Pramod dealt him with bhala on his chest and Surendra dealt him with bhala on his right leg. He has stated that appellant Dudh Nath dealt him with Farsa on his head and accused Pramod dealt him with bhala on his chest and Surendra dealt him with bhala on his right leg. His evidence further disclosed that Sheo Raut when came to save him he was also assaulted by Chandeshwar by lathi on his shoulder and Akshai Singh by lathi on his head. His evidence further disclosed that when his mother Jiuti Devi cried for help Ajay Kumar Singh entered inside the house (dumuha) and assaulted her by back portion of farsa towards her head and near the ear (kanpatti), due to which she became unconscious at dumuha. Thereafter all the injured were taken to hospital. His evidence further disclosed that appellant Ajay Kumar Singh exploded bomb. His evidence also disclosed that Jiuti Devi was admitted in hospital in unconscious condition at about 5 P.M. and when she regained her consciousness her statement was recorded. The aforesaid dying declaration is marked as Ext.4 with objection. 18. In his cross examination PW-6 has admitted that Fagu Sah is his brother and cases were going on with Dudh Nath, Prabhu Nath and Sheoji. In paragraph-20 this witness has admitted in his cross examination that at the time of occurrence he and his brother was on road and in paragraph-23 he has stated that after assault he fell down on road but thereafter none has assaulted him. His evidence also shows that blood was fallen at the road and at the “dumuha” also. His attention has been drawn towards his earlier statement made before police and there is contradiction between the two statements. His evidence in paragraph-26 also shows that by the time, they reached at the hospital, Jiuti Devi was there in unconscious condition. Paragraph-29 of his cross examination shows that Mukhiya was there. In paragraph-30 he has stated that he had not seen the accused persons in hospital but they have been sent to jail in a case lodged by Chandeshwar Singh in his defence. 19. Paragraph-29 of his cross examination shows that Mukhiya was there. In paragraph-30 he has stated that he had not seen the accused persons in hospital but they have been sent to jail in a case lodged by Chandeshwar Singh in his defence. 19. PW-4 is Fagu Sah, who is one of the injured and he has also named all the accused persons and also given the detail description of assault and according to him Chandeshwar assaulted him by lathi, causing fracture injury on left hand (forearm), Dayali Singh assaulted him by farsa on his head, Surendra Singh assaulted him by bhala on his chest and Pramod Singh assaulted him by bhala on his right cheek and thigh and also Swami Nath dealt him with lathi in his left leg and he has stated that Ram Surat and Sheo Raut were also assaulted by the accused persons and bomb was also exploded by appellant Ajay Kumar Singh. He has been cross examined at length where also he has stated about the assault and repeated the story of assault on them and in his cross examination he has stated that he had not seen injuries on the person Chandeshwar, Akshai or anyone else. In paragraph 21 he has denied that Ajay Kumar Singh lodged a case against him and his son, which is pending in the court of S.D.J.M. but also denied that a proceeding under Section 107 Cr.P.C. was in between him and Ajay Kumar Singh and also denied the suggestion that Dudh Nath filed a case of theft in Panchayat which was rejected by Panchayat and also by C.J.M. 20. PW-2 is Sheo Raut, another injured and he has also supported the prosecution case in his evidence in chief and has given the details about the assault with which they were armed and his evidence further disclosed that Fagu was assaulted by Chandeshwar Singh, Akshai Kumar Singh, Dayali Singh and Pramod Singh and further stated that Ram Surat Sah was also assaulted by Chandeshwar, Akshai Singh, Dudh Nath, Pramod and Surendra by their respective weapons. He has further stated that Ajay Singh had caused injury on the person of Jiuti Devi by farsa and he was assaulted by Chandeshwar and Ajay and Dudh Nath also caused injuries to him by brick bats. He has further stated that Ajay Singh had caused injury on the person of Jiuti Devi by farsa and he was assaulted by Chandeshwar and Ajay and Dudh Nath also caused injuries to him by brick bats. This witness has admitted that when he reached at the darwaja of Fagu Sah, 10 persons were assembled there and he had not found blood coming from their persons. His attention has been drawn towards his earlier statement made before police and he has stated that he has named Swami Nath, Prabhu Nath, Sheojee and Harendra before police and also denied the suggestion that he has not stated before police that Akshai Kumar Singh had not assaulted him by lathi and Surendra had not assaulted to Ram Surat by bhala and Jiuti Devi was also assaulted by Ajay by back portion of bhala and on hulla he went to the darwaja of Ram Surat. All the aforesaid suggestions have been denied by this witness. 21. PW-1 is Ram Bilash Koiri, who claims to be an eyewitness to the occurrence and also supported the genesis of occurrence by coughing by Chandeshwar and counter coughing by Fagu Sah and also stated about manner of occurrence. His evidence also disclosed that after "marpit" he went to the darwaja of Fagu Sah and at the time of "marpit" due to fear he has not gone to his darwaja. He has also denied to have seen any injury on the persons of accused, Chandeshwar, Akshai, Ajay and Pramod. His attention has also been drawn towards his earlier statement made before police regarding genesis of occurrence as well as manner of occurrence. He has also denied the suggestion that in 1986, he has deposed against Ajay Singh. 22. PW-5 is Sublal Yadav, who claims to be an eye-witness to the occurrence and he has supported the prosecution case naming all the witnesses with the arms they were carrying and also given picture of assault made by the accused persons to the injured, including Jiuti Devi and also supported the prosecution case of explosion of bomb by Ajay Singh. He also appears to be a seizure list witness of bloodstained soil and remaining of bomb. However, his cross examination shows that his house is 10-15 feet away from the house of Ram Surat Sah in between that there is Chamar Toli and Sheo Raut is his uncle. He also appears to be a seizure list witness of bloodstained soil and remaining of bomb. However, his cross examination shows that his house is 10-15 feet away from the house of Ram Surat Sah in between that there is Chamar Toli and Sheo Raut is his uncle. His evidence also shows that 12 other persons reached there before him when the injured have received injuries. The aforesaid evidence of this witness shows that he is not an eye-witness to the occurrence, rather he appears to have reached at the place of occurrence after the assault is over. His attention has also been drawn towards his earlier statement made before police and there is contradiction between them. His evidence in paragraph-21 shows that earlier Fagu Sah had lodged a case against Ajay in which he has deposed on behalf of Fagu Sah. He has also stated that he had not seen blood coming from any person of the appellants. 23. From the evidence discussed above it appears that PWs. 2, 4 and 6 are the injured witnesses in this case and they have stated about the manner of assault to them in detail and it appears that the same has been corroborated by the medical evidence of PW-8, Doctor as well as the injury reports (Exts.6 to 6/3). However, learned trial court has disbelieved the story of explosion of bomb by appellant Ajay Kumar Singh. 24. On the other hand, there is counter case also and date and time of occurrence is road, in which defence has come with different version of occurrence and stated that Fagu Sah and others assaulted them and injury reports have also been brought on record showing several injuries over the persons of appellants Ajay Kumar Singh, Pramod Kumar Singh, Akchay Kumar Singh, Anand Kumar Singh and accused Chandeshwar, including one injury on Ajay Kumar Singh appears to be grievous. It further appears that the witnesses have also been cross examined on the point of assault and injuries to the appellants side but they have denied to the same and simply stated that they have not seen injury on their persons and further their evidence also disclosed that they had not seen them in the hospital, whereas PW-8, Doctor, who has issued injury reports in favour of PWs. 2, 4 and 6 has also examined the injured appellants also on the same day, on requisition of Officer-in-charge and in his cross examination he has given the details of injuries on the person of appellants. It shows that the injuries on the persons of appellants have not been explained by the prosecution, though in cross examination some PWs. have stated that one case has been lodged with respect to the occurrence. The aforesaid conduct of the witnesses clearly shows that they are not coming with clean hand and trying to suppress the material fact and certainly casts a doubt about manner of occurrence. 25. Prosecution has also come with a dying declaration of Jiuti Devi (deceased) which appears from the evidence of PW-6 which has been brought on record as Ext.4. However, PW-6 claims that he deposed before the Mukhiyaji and Mukhiyaji put his signature on it but neither Mukhiyaji has been examined in this case nor there is any signature of the Doctor or any certification of the Doctor which disclosed that she was in fit condition to state at the time of recording her so-called dying declaration. Hence, the aforesaid dying declaration (Ext.4) does not inspire confidence and does not appear to be free from reasonable doubt. 26. In this case I.O. has not been examined. Hence, the aforesaid dying declaration (Ext.4) does not inspire confidence and does not appear to be free from reasonable doubt. 26. In this case I.O. has not been examined. No doubt, non-examination of I.O. will not wash out the oral evidence available on record, but in a situation where there is case and counter case, injuries are from both sides and especially when evidence of PW-6 in paragraph-15 disclosed houses of appellant Ajay and Dudhnath adjacent to the house of informant, and the evidence of PW-5 in paragraph-22 also shows that the place of occurrence is the road on the darwaja of appellant and evidence of PW-4 in paragraph-7 disclosed that adjacent to the house of PW-4 there is house of Murai Gour and evidence also shows that adjacent not to the house of Murai Gour and there is house of appellant Dudh Nath and east to the “dalan” of Dudh Nath there is house of accused Chandeshwar Singh and aforesaid fact clearly shows that prosecution and appellants party are residing near the place of occurrence and occurrence took place on the road in front of darwaja of appellant as well as the informant and his party, hence the evidence of I.O. appears to be essential so as to determine place of occurrence. Moreover, evidence of PW-6 also discloses contradiction from the earlier statement before police in paragraph-16 and his evidence in paragraph-20 further shows that at the time of occurrence he and his brother were at the road and further contradiction has been taken to his previous statement in paragraph-33 of his evidence. It further appears that omission/contradiction of other witnesses has also been taken from the earlier statement before police and they appear to be vital and in such a situation non-examination of I.O. has also certainly caused prejudice to the defence. 27. From the discussions made above it appears that there are discrepancies, omissions and contradictions from the earlier statement made before the police and in the evidence of witnesses and I.O. has not been examined in this case, as such the aforesaid contradictions, omissions and discrepancies cannot be confronted to the I.O. and his evidence is also essential for determination of the place of occurrence. Besides that, there is case and counter case and counter case also appears to be for the occurrence of the same day and time in which several accused persons have received injuries and some of the injuries are grievous in nature. However, explanation about the same has not been given by the prosecution which certainly shows that prosecution is suppressing the material fact which caused serious doubts about the manner of occurrence. In view of discussions made above, there appears to be a case of free fight. Occurrence took place near the house of the informant as well as some of the appellants it is the case of the defence that while Chandeshwar was coming after easing himself he was caught and assaulted and, as such, it cannot be said with certainty that the appellants are the aggressors and in such a situation the appellants cannot be convicted under Sections 147 and 148 or with the aid of Section 149 IPC, which has already been held by Hon'ble Apex Court in a decision in the case of Mariadasan and Others vs. State of Tamil Nadu, AIR 1980 SC 573 and the same has also been considered in the case of Ananta Kathod Pawar and Others vs. State of Maharashtra, (1997) 11 SCC 564 wherein Hon'ble Apex Court on consideration of the evidence and relying upon the decision of the Supreme Court in the case of Lakshmi Singh vs. State of Bihar, (1976) 4 SCC 394 has held in paragraph-5 of the judgment as follows: “5. In our considered view, with the above observations and findings, the trial court was not at all justified in convicting the appellants for rioting or for the other offences with the aid of Section 149 IPC. Equally untenable is the High Courts affirmation of the above convictions for the evidence on record clearly establishes the findings recorded by the trial court. Once the trial court found that there was a sudden and free fight between the two groups in which members of both the groups sustained injuries, the trial court should have held that there was no scope for convicting members of one of those groups under Section 147 or 148 IPC and for that matter for substantive offences with the aid of Section 149 IPC. In such a case, the accused persons would be liable for their individual acts and would not be liable vicariously. In the instant case, we are unable to convict the appellants for their individual acts also as no specific evidence was led by the prosecution in that regard.” 28. On a consideration of the above settled law, in the present case the appellants are liable for their individual acts. Appellants Akshai Kumar Singh, Anand Kumar Singh, Ajay Kumar Singh and Pramod Kumar Singh have also received injuries and submission of learned amicus curiae is that so far appellants Anand Kumar Singh, Harendra Singh, Prabhunath Sah and Sheoji Sah are concerned, no specific allegation of assault is attributed to them and so far other appellants are concerned, there was free fight between the parties and their action was within the right of private defence but the learned trial court has not considered the aforesaid aspect of the matter. Further submission is that in view of the discussions made above, it appears that in the facts and circumstances of the case the appellants are also not liable for conviction under Section 147 or 148 IPC. 29. Though appellants Anand Kumar Singh, Harendra Singh and Sheoji Sah had been convicted under Section 148 IPC and 324 IPC, appellant Prabhunath Sah has been convicted under Sections 147 and 323 but considering the fact that there is absolutely no evidence of assault against them and in view of the settled law they are not liable for conviction under Sections 148 and 324 IPC or under Sections 147 and 323 IPC, hence the conviction and sentence of appellants Anand Kumar Singh, Harendra Singh and Sheoji Sah under Sections 148 and 324 IPC and conviction and sentence of appellant Prabhunath Sah under Sections 147 and 323 IPC are set aside. 30. In view of findings arrived at above, conviction and sentence of appellants Ajay Kumar Singh, Dayali Singh, Dudhnath Singh, Surendra Singh and Pramod Kumar Singh under Sections 148 IPC and appellants Swaminath Prasad Sah and Akshai Kumar Singh under Section 147 IPC are set aside. 31. So far appellant Ajay Kumar Singh is concerned, he has been convicted under Section 304 Part II IPC. 31. So far appellant Ajay Kumar Singh is concerned, he has been convicted under Section 304 Part II IPC. However, present case appears to be a sudden fight in which they have/ have been assaulted on a petty issue and it appears from perusal of the materials on record that they have assaulted only to cause injuries and their intention was not to kill anybody. It can also not be said that the appellants assaulted having knowledge that injuries may cause death. It further appears that the allegation of causing injuries is by butt portion of farsa and had he intended to kill he could have used sharp portion of farsa rather he intentionally used back portion of farsa, as such it cannot be said that he had knowledge that such assault may result into the death of Jiuti Devi. Furthermore occurrence took place on a petty issue of coughing and, in such a situation, the conviction of appellant Ajay Kumar Singh under Section 304 Part II IPC does not appear to be just and proper, at best he may be convicted under Section 325 IPC. 32. So far conviction of appellants Ajay Kumar Singh, Pramod Kumar Singh, Surendra Singh, Dudhnath Sah and Dayali Singh under Section 324 IPC is concerned, the same appears to be just and proper and does not require any interference by this Court. 33. So far conviction of appellants Akshai Kumar Singh and Swaminath Sah is concerned, they had also been convicted under Section 323 IPC and from discussions made above and considering the evidence, their conviction under Section 323 IPC appears to be just and proper. Accordingly, conviction of appellant Ajay Kumar Singh under Section 304 Part II is modified to the Section 325 IPC and it appears that he has remained in custody for two and a half years and so his sentence is reduced to the period already undergone by him. However, conviction and sentence of appellant Ajay Kumar Singh under Section 324 IPC does not appear to be sustainable on the basis of evidence available on record, hence set aside. 34. However, conviction and sentence of appellant Ajay Kumar Singh under Section 324 IPC does not appear to be sustainable on the basis of evidence available on record, hence set aside. 34. So far conviction of appellants Pramod Kumar Singh, Dudhnath Sah and Surender Singh under Section 324 IPC and conviction of appellant Swaminath Prasad Sah and Akshai Kumar Singh under Section 323 IPC is concerned, the same is upheld but in the facts and circumstances of the case and also considering the fact that the occurrence is of the year 1986 and 31 years have passed and during trial appellants Akshai Kumar Singh, Pramod Kumar Singh and Dudhnath Sah have remained in custody for 19 days, appellants Swaminath Prasad Sah, Prabhunath Sah and Sheoji Sah have remained in custody for three days and appellants Dayali Singh and Harendra Singh have remained in custody for one month ten days and two days respectively and there is nothing available on record that they have misused the privilege of bail and also considering the said appellants, their sentence is reduced to the period already undergone by them. 35. With the above modification in the judgment of conviction and order of sentence, these appeals are disposed of. Appeals disposed of.