JUDGMENT : ANANT BIJAY SINGH, J: 1. Four appellants have preferred this criminal appeal who have faced trial in S.T. No. 358 of 2006 arise out of Chainpur P.S. Case No.74 of 2006 dated 29.05.2006 for the offence under sections 147, 148, 149, 323, 324, 325, 307 and 302 of the Indian Penal Code before the Court of Shri Ram Nath Prasad, learned Addl. Sessions Judge, F.T.C-II, Palamatu at Daltonganj who under judgment dated 24.06.2008 held the appellants guilty under section 148, 302 and 149 of the Indian Penal Code and under order dated 26.06.2008 sentenced the appellants under section 148 of the Indian Penal Code and directed to undergo R.I for 3 years, and under section 302/149 of the Indian Penal Code to undergo R.I for life and to pay a fine of Rs. 5,000/- each and in default of payment of fine further to undergo R.I for 2 years and all the sentences were directed to run concurrently. 2. The appeal was preferred before this court on 22.07.2008 and it was admitted for hearing under order dated 01.08.2008 by the Hon’ble Division Bench and appellant nos. 3 & 4 namely Malti Devi and Dulari Devi have been admitted on bail during pendency of this appeal and appellant no. 2 namely, Shambhu Nath Dubey @ Shambhu Dubey has been admitted on bail under order dated 21.08.2013 during pendency of this appeal. 3. On the basis of fardbeyan-Ext 3 of the informant namely, Lilawati Devi @ Lila Devi-P.W.-8, Chainpur P.S. Case No. 74 of 2006 was registered for the offence under Section 147, 148, 149, 323, 324, 325, 326, 307, 302 of the Indian Penal Code. 4. After completion of investigation, charge-sheet was submitted and the case was committed to the Court of Sessions by order of learned C.J.M, Palamau on 20.11.2006 and the learned Sessions Judge, Palamau framed charge under sections 148, 302/149 of the Indian Penal Code against the appellants on 08.01.2007. 5. Prosecution, in support of its case, examined altogether twelve witnesses. Witnesses. P.W.1 is Sunil Dueby, P.W. 2 is Chandan Kumar Dubey, P.W.3 is Alok Dubey, P.W. 4 is Dinesh Dubey, P.W. 5 is Ramashray Dubey, P.W. 6 is Ravinder Dubey, P.W. 7 is Sanjay Dubey, P.W. 8 is Lilawati Devi @ Lila Devi (informant of this case), P.W 9 is Dr. Witnesses. P.W.1 is Sunil Dueby, P.W. 2 is Chandan Kumar Dubey, P.W.3 is Alok Dubey, P.W. 4 is Dinesh Dubey, P.W. 5 is Ramashray Dubey, P.W. 6 is Ravinder Dubey, P.W. 7 is Sanjay Dubey, P.W. 8 is Lilawati Devi @ Lila Devi (informant of this case), P.W 9 is Dr. Gayan Praksh Singh- who was posted as Medical Officer at Sadar Hospital, Daltonganj on 29.05.2006, P.W. 10 is Dr. Tulisi Mahto- who was Professor in Head Department of Forancic Medicine and toxicology RIMS, Ranchi, P.W.11 is Kishun Mehta-I.O of the case, P..W 12 of Surendra Kumar Dubey. 6. As per exhibits, Ext. 1 is injury report marked without objection, Ext.2 is post-mortem examination report which was marked with objection, Ext. 3 is Fardbeyan marked without objection, Ext. 4 is requisition sent by the I.O of the injured Vijay Dubey, Ext. 5 is formal F.I.R and Ext. 6 is inquest report. 7. As per defence exhibits, Ext. A is copy of Complaint Case No. 348 of 2006 showing that litigation is going on between the parties, Exhibit-B is prescription of Dr. Bishun Dubey, Ext. C is certified copy of order-sheet of Complaint Case no. 348 of 2006, Ext. D is Miscellaneous Case No. 1043 of 2005 in which proceeding under section 144 Cr.P.C was going on between the parties. 8. Issue to determine in this case as to whether, prosecution has been able to prove its case beyond all reasonable doubt or not against the appellants. 9. Counsel for the defence while referring to fardbeyan- Ext.3 of Lilawati Devi @ Lila Devi which was recorded by S.I-Kishun Mehta of Chainpur Police Station at 10.45 A.M, on 28.05.2006 which is typographical error which may be 29.05.20016 at 10.45 A.M alleging that on 29.05.2006 at 7.30 A.M, her husband was going to village Kektua and reached near the house of Shambhu Nath Dubey (appellant no.2) armed with tangi, Nawal Dubey (appellant no 1) armed with Garasa, Jayshankar Dubey, Dindayal Dubey armed with lathi, Rajdeo Dubey armed with lathi, Lalbau Dubey, armed wsith lathi, Duli Devi (appellant no. 4) , Malti Devi (appellant no. 4) , Malti Devi (appellant no. 3), Baby Devi all armed with lathi surrounded her husband-Vijay Dubey and started to assault him, consequent upon her husband received injury on head and received fracture injury, thereafter her husband fell down on the ground, thereafter the informant, her family members and villagers assembled there then the miscreants fled away. Motive of occurrence was the enmity between the parties with regard to land dispute. 10. Counsel for the appellants while referring to fardbeyan of the informant P.W.-8 has submitted that admittedly, she claimed to be an eye-witness and given definite manner of specific assault by arms attributed to the accused persons but in the Court during her evidence on 07.07.2007 she has categorically stated in her examination-in-chief that on 29.05.2006 at 7.30 A.M. she along with her husband was going to village Ketkua to bring mason and when reached near Makuni Tand then Ramashray Dubey-P.W.5 and Ravinder Dubey-P.W.6 were coming from the south and they were going to perform Puja in a temple situated near Koyal river, noticing them, the informant stayed at some distance then Shambhu Nath Dubey armed with tangi, Nawal Dubey armed with Garasa, Dinanath Dubey, Lal Babu Dubey, Rajdeo Dubey, Dulari Devi, Malti Devi, Baby Devi and Jayshankar Dubey all they armed with lathi came out and surrounded her husband Vijay Dubey and assaulted him due to which her husband became unconscious. The husband of the informant received tangi injury and fracture injury. The accused Rajdeo Dubey ordered that assault with tangi and pasa of the garasa. On raising hulla, the villagers came there then the accused persons fled away. Thereafter, the injured was taken to Sadar hospital, Daltonganj with the help of villagers where the fardbeyan of the informant-P.W.8 was recorded by the police and she put her thumb impression it. This witness has stated that during course of treatment in RIMS, her husband has died. This witness has also admitted the factum of land dispute between the parties. 11. Learned counsel for the appellants has further submitted that P.W.8-informant has completely changed the entire manner of occurrence, place of occurrence. Further, it has been submitted that P.W.5 & 6 are chance witnesses as in the fardbeyan, P.W.8-who is informant of this case has not named these two witnesses, so reliance cannot be placed on the evidence of this witness. Learned counsel for the appellants has further submitted that P.W.8-informant has completely changed the entire manner of occurrence, place of occurrence. Further, it has been submitted that P.W.5 & 6 are chance witnesses as in the fardbeyan, P.W.8-who is informant of this case has not named these two witnesses, so reliance cannot be placed on the evidence of this witness. It has been submitted by the counsel for the appellants that P.W.8-informant in para 9 & 10 of his deposition in cross-examination has narrated the police about the occurrence and has stated that she was going with her husband and reached to Makuni Tand, then Ramashray Dubey (P.W.5) and Rabinder Dubey (P.W.6) met with her husband in the meanwhile, the appellant along with other accused persons her husband. Further, in para 14, she has stated that to whom mason his husband was going to call for, she does not know his name. In para 18 of the cross examination, P.W.8-informant has stated that Munna Dubey is her Debar and there is land dispute for which proceeding under 144 and 107 Cr.P.C is going on. This witness has denied the suggestion that at the time of occurrence she was not going with her husband to bring mason. 12. Learned counsel for the defence referring to evidence of P.W.5 has submitted that this witness in examination-in-chief has stated that on 29.05.2006 at 7.30 in the morning he along with Ravinder Dubey(P.W.6) was going to Shiv Mandir near Koyal river and when they reached near place of occurrence-Makunitand then he saw that Vijay Dubey(deceased)-husband of the informant was coming from west side with her wife the said Vijay Dubey wished him, in the meanwhile, the appellants variously armed with tangi, Garasa, lathi came there and assaulted the husband of the informant namely, Vijay Dubey. In his cross-examination, this witness has stated that he was working as assistant in Patna University from 1951 to 1995 and now he has been retired and he is residing in village. In para 28 of the cross examination, this witness has admitted that there was land dispute between the parties for which proceeding under section 144 & 145 Cr.P.C was going on. 13. Similar is the statement of Ravinder Dubey-P.W.6 who has stated the same fact as has been stated by the P.W.5. 14. In para 28 of the cross examination, this witness has admitted that there was land dispute between the parties for which proceeding under section 144 & 145 Cr.P.C was going on. 13. Similar is the statement of Ravinder Dubey-P.W.6 who has stated the same fact as has been stated by the P.W.5. 14. P.W.7-Sanjay Dubey has also stated that same fact and in para 8 and 9 this witness has stated that there was land dispute between the parties for which proceeding under 144 Cr.P.C was going between the parties due to which occurrence has taken place. 15. P.W.9 is Dr. Gyan Prakash Singh who has stated in his evidence that on 29.05.06 he was posted as Medical Officer at Sadar Hospital, Daltangonj and examined the injured namely, Vijay Dubey and found the following injuries: (i) Lacerated wound over head of the head of the injured 8 cm x 1 c.m, bone deep, the injured was vomiting and he was in altered sensorium and the injured was sent to the Medical College, Ranchi for better treatment and the injury may be caused due to hard and blunt substance. (ii) Bruise over right side of abdomen 8 c.m x 4 c.m the colour of wound was read, the x-ray was done but the opinion was awaited and the injury may due to hard and blunt substance. Injury report is in his handwriting and he put his signature which has been marked as exhibit 1. 16. P.W.10 is Dr. Tulsi Mahto, who was Professor in Head Department of Forancic Medicine and toxicology RIMS, Ranchi this witness has stated that on 05.06.2006 Dr. Shambhu Sharan, Assistant Professor, Forancic Medicine and Toxicology, RIMS, Ranchi had conducted the post-mortem examination on the dead body of the deceased-Vijay Dubey but Dr. Shambhu Sharan has died and now he has proved the post-mortem report. This witness has stated that post-mortem report is in the handwriting of Dr. Shambhu Sharan in which he has put his signature which has been marked as exhibit-7. In the post-mortem report following injuries were found: (i) 2 C.M. x ½ C.M, over the front right side of Abdomen lower part. (ii) 2 C.M. x ½ C.M and ½ C.M, x ½ C.M over the right side of abdomen lower part lateral side. (iii) 4 C.M, x 2 C.M, over the left letral side of chest. 2. In the post-mortem report following injuries were found: (i) 2 C.M. x ½ C.M, over the front right side of Abdomen lower part. (ii) 2 C.M. x ½ C.M and ½ C.M, x ½ C.M over the right side of abdomen lower part lateral side. (iii) 4 C.M, x 2 C.M, over the left letral side of chest. 2. Rail Track Bruise (i) 6 C.M, x 2 C.M and 4 C.M, x 2 C.M, over the back of right four Arms. (ii) 10 C.M. x 2 C.M, over the left side of abdomen (iii) 8 C.M x 2 C.M, over the right abdomen lower part. Stiched wound 4 C.M x ½ C.M,, bone deep. Having four stiches over the left perital riger of head. Internally Internally this is diffused contusion of left fronto parito temporal. Scalp with c rack fracture of left fronto Parito-Temporal bones. Therein contusion of brain and presence of sub dural blood and blood clot over both sides of brain there is bilateral. Fracture of 6 to 10 with lessovation of lever, spleen and presence of blood and blood clot in the abdominal cavity. All the injuries are antemortem caused by hard and blunt substance. Death is due to injuries are noted above. T.S.D- Between 3 hrs to 18 hrs from the time of Post-mortem examination that is 12.45 hrs of 30.05.2006. This witness has stated that he has not taken part in the post-mortem of deceased Vijay Dubey. Post-mortem report has been marked as Exhibit-2. Inquest report of the deceased has been marked as Exhibit-X. 17. P.W.-11 Kishun Mehta who has stated that on 29.05.2006 he was posted as S.I at Chainpur Police Station and on 29.05.2006 he recorded the fardbeyan of informant a t 10.45 hrs and the fardbeyan is in his writing and signature which has been marked as exhibit 3. The contents of fardbeyan was read over to the informant-Lila Devi who put her thumb impression. This witness has stated that after taking charge of investigation, he visited the place of occurrence. The place of occurrence is Makunitand . He has not found anything at the place of occurrence. This witness has stated that he has taken statement of Alok Dubey, Chandan Dubey, Sunil Dubey, Sanjay Dubey, Ramashray Dubey, Dinesh Dubey and the injured Vijay Dubey was sent to RIMS, Ranchi for better treatment. The place of occurrence is Makunitand . He has not found anything at the place of occurrence. This witness has stated that he has taken statement of Alok Dubey, Chandan Dubey, Sunil Dubey, Sanjay Dubey, Ramashray Dubey, Dinesh Dubey and the injured Vijay Dubey was sent to RIMS, Ranchi for better treatment. In para 14 of the cross examination, this witness has stated that nobody informed him about the occurrence at police station. In para 15 of his evidence, this witness has stated that there was land dispute between the parties for which proceeding under section 107, 144 Cr.P.C was going on. In para 26, this witness has stated that he has recorded the statement of Alok Dubey and Sanjay Dubey. Further, this witness has stated that he has recorded the statement of independent witnesses namely, Dilip Dubey, Mandip Dubey, Munna Dubey, Manger Manjhi all resident of village Karamdih all are charge-sheeted witnesses but they could not be examined in the court. In para 30, this witness has stated that there is no any temple near place of occurrence. In para 36 , this witness has stated that Ramashray Dubey told in the police station that Vijay Dubey (deceased) and his wife were coming from western side and they were going to perform Puja from Makunitand and they have not told that Shambhu Dubey and Nawal Dubey assaulted Vijay Dubey from tangi and garasa. 18. Referring to evidence of P.W. 9 & 10-Doctors, learned counsel for the appellants has submitted that evidence of these witnesses falsifies the case as no sharp cutting injury was found but the informant in his fardbeyan has categorically stated that the accused persons assaulted his husband with tangi and farsa but subsequently, in the court she changed her version and stated that the accused persons assaulted her husband with pasa of farsa so this belies the case of prosecution. 19. Further, P.W. 5 & 6 who claimed to be eye-witness are interested witnesses. Further, objective findings of the I.O also does not support the case of prosecution. P.W.11-I.O has stated in his evidence that there was no temple at the place of occurrence. 19. Further, P.W. 5 & 6 who claimed to be eye-witness are interested witnesses. Further, objective findings of the I.O also does not support the case of prosecution. P.W.11-I.O has stated in his evidence that there was no temple at the place of occurrence. It was submitted by the counsel for the appellants that the statement of independent witnesses namely, Dilip Dubey, Mandip Dubey, Munna Dubey, Manger Manjhi all resident of village Karamdih all are charge-sheeted witnesses has been recorded by the I.O but they could not be examined in the court and the witnesses examined are related to each other and they are interested witnesses and there was enmity between the parties, so the prosecution has miserably failed to prove its case beyond all reasonable doubt. 20. Learned counsel for the appellants further referred the evidences of D.W.-1-Shambhu Dubey who approved the Complaint Case No. 348 of 2006 under sections 147, 148, 323, 379, 427, 504 of the Indian Penal Code in which Vijay Dubey(now deceased) and others were accused and now pending in the court of Sri Yashwant Prakash, Judicial Magistrate, Ist Class. Further, this witness has admitted the factum of land dispute between the parties for which proceeding under sections 144 and 107 Cr.P.C was going on. D.W.-2 Nawal Dubey (appeallan no.1) who has stated that his wife Malti Devi is suffering from leprosy. 21. Learned counsel for the appellants has further submitted that while discussing the evidences of the witnesses, the trial court has not discussed the evidences of above named defence witnesses and also not discussed that there was old enmity between the parties and the witnesses who have claimed to be eye-witness are interested witness. Further, it was submitted that Investigating Officer has stated that he examined the independent witnesses namely, Dilip Dubey, Mandip Dubey, Munna Dubey, Manger Manjhi who are also charge-sheeted witnesses but they have not been examined in the court and this fact has not been considered by the trial court and thus the prosecution has miserably failed to prove its case beyond all reasonable doubt and appellants deserve to be acquitted. 22. 22. On the other hand, learned A.P.P appearing on behalf of the State referring to few judgments has submitted that informant is eye-witness and her version has been supported by the another eye-witness namely P.W.5 & P.W.6 who have proved the place of occurrence, manner of occurrence, so the prosecution has been able to prove its case beyond all reasonable doubt hence the learned Trial Court has rightly convicted the appellants guilty and accordingly appeal is liable to be dismissed. 23. After hearing the learned counsel for the parties and after close scrutiny of the evidences both oral and documentary, we are of the considered view that admittedly; (a) the informant has given two versions, in the fardbeyan she has not named the eye witnesses namely, P.W.5-Ramashray Dubey and P.W.6 Ravinder Dubey but in the court she has named these two witnesses as an eye witness although they are related witness and these two witnesses have also not supported the case of informant regarding manner of occurrence, place of occurrence, weapon used and this fact has not been taken note by the trial court. (b) Further, post-mortem report approved by the P.W.10-Dr. Tulsi Mahto belies the case of prosecution as informant-P.W.8 has stated that sharp-cutting weapon i.e tangi and farsa was used but the doctor found the injuries caused by hard and blunt substance on the dead body of the deceased, further trial court has not considered the evidence of defence witnesses and also the fact that there was old enmity between the parties. (c) P.W.-11-Investigating Officer who has categorically stated that he examined the independent witnesses namely, Dilip Dubey, Mandip Dubey, Munna Dubey, Manger Manjhi who are charge-sheeted witnesses but they were not examined in the court, taking all these facts, we are of the considered view that prosecution has miserably failed to prove its charge beyond all reasonable doubt with regard to manner of occurrence, place of occurrence, weapon used, so taking all these facts and circumstances of the case, judgment of conviction dated 24.06.2008 and order of sentence dated 26.06.2008 passed by the learned Addl. Sessions Judge, F.T.C-II, Palamau at Daltonganj in S.T. No.358 of 2006 are set-aside and the instant appeal stands allowed. 24. Sessions Judge, F.T.C-II, Palamau at Daltonganj in S.T. No.358 of 2006 are set-aside and the instant appeal stands allowed. 24. In the result, this appeal is allowed and the judgment of conviction dated 24.06.2008 and the order of sentence dated 26.06.2008 passed by the Additional Sessions Judge, F.T.C-II, Palamau at Daltonganj against these appellants, is hereby, set aside and the appellants are acquitted of all the charges. It appears that the appellant nos. 2 to 4, namely, Shambhu Nath Dubey @ Shambhu Dubey, Malti Devi and Dulari Devi are on bail, they are discharged from the liabilities of their bail bonds, so far as the appellant no. 1 namely, Nawal Dubey is concerned, who is in custody for more than 12 years, is directed to be released forthwith, if not wanted in connection with any other case. Appeal allowed.