JUDGMENT : Rakesh Kumar, J. Appellants, in all the aforesaid three appeals, were tried together and convicted & sentenced by the same judgment of the Trial Judge and as such, all the three appeals were taken up together and are being disposed of by this common judgment. 2. By judgment dated 04-09-2010, all the appellants were convicted for commission of offence under Sections 302/149 of the Indian Penal Code, 1860 (hereinafter referred to as 'I.P.C.'). By the same judgment, Chandrika Yadav (appellant in Cr. Appeal DB No. 1267 of 2010) and Rajeshwar Sah (appellant in Cr. Appeal DB No. 1185 of 2010) were convicted for commission of offence under Section 147 of the I.P.C. and Nokha Yadav (appellant in Cr. Appeal DB No. 1234 of 2010) was convicted for commission of offence under Section 148 of the I.P.C. By order dated 15-09-2010, all the appellants under Section 302/149 of the I.P.C. were sentenced to undergo imprisonment for life and to pay fine of Rs. 5,000/- (five thousand) each and in default of payment of fine, they were directed to further undergo simple imprisonment for one year. By the same order i.e. order dated 15-09-2010, under Section 147 of the I.P.C., Chandrika Yadav (app. in Cr. Appeal DB No. 1267/10) and Rameshwar Sah @ Rajeshwar Sah (app. in Cr. Appeal DB No. 1185/10) were sentenced to undergo rigorous imprisonment for two years and under Section 148 of the I.P.C., appellant Nokha Yadav (in Cr. Appeal DB No. 1234/10) was sentenced to undergo rigorous imprisonment for three years. All the sentences were directed to run concurrently. The judgment of conviction and sentence was passed by Sri Ajay Nath Jha, learned Addl. District & Sessions Judge, Fast Track Court No. III, Saran at Chapra (hereinafter referred to as 'Trial Judge') in Sessions Trial No. 785 of 1994 (arising out of Ekma P.S. Case No. 66 of 1993). 3. Short fact of the case is that on 23-07-1993 at 07:15 PM, Assistant Sub-Inspector H.B. Singh, officer incharge of Ekma Police Station recorded fardbeyan of Bankey Yadav (P.W.3). The fardbeyan was recorded in Primary Health Centre, Ekma. In the fardbeyan, the informant disclosed that on the same date i.e. on 23-07-1993 at about 3:30 PM at the door of informant's brother namely Raghubir Yadav (P.W.2), Chandrika Yadav (appellant in Cr. The fardbeyan was recorded in Primary Health Centre, Ekma. In the fardbeyan, the informant disclosed that on the same date i.e. on 23-07-1993 at about 3:30 PM at the door of informant's brother namely Raghubir Yadav (P.W.2), Chandrika Yadav (appellant in Cr. Appeal DB No.1267/10), who was pattidar, came and enquired about the reason for altercation in between the female inmates. Thereafter, appellant Chandrika Yadav (in Cr. Appeal DB No.1267/10) was agitated and threatened for consequences, whereupon elder brother of informant namely Buteshwar Yadav (deceased) inquired from Chandrika Yadav (app. in Cr. Appeal DB No. 1267/10) as to why he was agitating. On this, appellant Chandrika Yadav, who was carrying a lathi in his hand, gave lathi blow on the head of his brother Buteshwar Yadav and after receiving such injury, he fell down. The informant and his brother Raghubir Yadav (P.W.2) ran towards his brother, in the meanwhile, from side of Chandrika Yadav (app. in Cr. Appeal DB No.1267/10), Bahadur Yadav, Naga Rai, Nokha Rai (app. in Cr. Appeal DB No.1234/10) Dasai Yadav, Rameshwar Rai (app. in Cr. Appeal DB No. 1185/10), all carrying lathi in their hands started assaulting him as well as his brother indiscriminately. In the said occurrence, his brother Raghubir Yadav (P.W.2) and Buteshwar Yadav received injury on their head and on different parts of their body. On noticing this, his younger brother Lal Babu Yadav (P.W.1) arrived to save him, however; he was also given lathi blow by Rajeshwar Sah (app. in Cr. Appeal DB No.1185/10) and injured him. The informant claimed that the said occurrence was witnessed by his all family members as well as number of villagers. The said fardbeyan was read over to him and after finding it correct, he put his L.T.I. (Left Thumb Impression) on the same. 4. On the basis of said fardbeyan, on 24-07-1993 at 09:30 AM, a formal F.I.R., vide Ekma P.S. Case No. 66 of 1993, was registered for offence under Sections 147, 148, 149, 323, 447 and 307 of the I.P.C. against : (i) Chandrika Yadav (app. in Cr. Appeal DB No.1267 of 2010) (ii) Bahadur Yadav (died during trial) (iii) Dasai Yadav (died during trial) (iv) Naga Rai (died during trial) (v) Rameshwar Sah (app. in Cr. Appeal DB No. 1185 of 2010) (vi) Nokha Yadav (app. in Cr. Appeal DB No. 1234 of 2010). in Cr. Appeal DB No.1267 of 2010) (ii) Bahadur Yadav (died during trial) (iii) Dasai Yadav (died during trial) (iv) Naga Rai (died during trial) (v) Rameshwar Sah (app. in Cr. Appeal DB No. 1185 of 2010) (vi) Nokha Yadav (app. in Cr. Appeal DB No. 1234 of 2010). After the death of injured Buteshwar Yadav, Section 302 of I.P.C. was added. 5. During investigation, since accusation was found true, on 16-03-1994, charge-sheet was submitted against all the F.I.R. named accused. Thereafter, on 26-07-1994, learned Magistrate took cognizance of the offence. Subsequently, after compliance of provision under Section 207 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.'), the case was committed to the court of sessions and after commitment, the case was numbered as Sessions Trial No. 785 of 1994. On 27th July, 1994, charge under Section 302/149 of the I.P.C. was framed against six accused persons, which includes all the aforesaid three appellants and on the same date i.e. on 27th July, 1994, charge under Section 147 of the I.P.C. was framed against five accused {except Nokha Yadav (appellant in Cr. Appeal DB No. 1234 of 2010)}. However, on the same date i.e. 27th July, 1994, charge under Section 148 of the I.P.C. was framed against Nokha Yadav (appellant in Cr. Appeal DB No. 1234 of 2010). In course of trial three charged accused died and the trial concluded against these appellants. 6. During the trial, to establish its case from the prosecution side, altogether five witnesses were examined. Out of them, P.W.1 Lal Babu Yadav (brother of the deceased), P.W.2 Raghubir Yadav (brother of the deceased) and P.W.3 Bankey Yadav (brother of the deceased and informant) were examined as eye-witnesses, whereas P.W.4 Sursati Devi (wife of the deceased) was only tendered for cross-examination and P.W.5 Dr. Syed Md. Mustaque, who on 24-07-1993 was posted as Civil Assistant Surgeon, Sadar Hospital, Chapra, had conducted postmortem examination on the dead body of the deceased. 7. After completion of the prosecution evidence, statement of accused under Section 313 of the Cr.P.C. was recorded. It is made clear that though, charges were framed against all the six accused persons, however during trial, three accused died and as such, trial proceeded only against remaining three accused, who are appellants before this Court. 7. After completion of the prosecution evidence, statement of accused under Section 313 of the Cr.P.C. was recorded. It is made clear that though, charges were framed against all the six accused persons, however during trial, three accused died and as such, trial proceeded only against remaining three accused, who are appellants before this Court. In the statement recorded under Section 313 of the Cr.P.C., the appellants denied the charges and claimed to be innocent. Thereafter, on behalf of defence, one defence witness namely Raj Bali Rai was examined as D.W.1, who proved fardbeyan and formal F.I.R. in relation to Ekma P.S. Case No. 67 of 1993, in which, Chandrika Yadav (appellant in Cr. Appeal DB No. 1267 of 2010) was informant and deceased as well as P.W.1 to P.W.3 were shown as accused. 8. After placing entire evidence, Sri Prabhat Kumar Singh, learned counsel assisted by Sri Awadhesh Kumar Singh, learned counsel for the appellants in all the appeals has argued that despite the fact that prosecution has not been able to establish its case beyond all reasonable doubt, the learned Trial Judge has incorrectly passed the judgment of conviction and sentence. It has been reiterated that the prosecution case was not believable, since in the F.I.R., the informant was very much specific that in the occurrence, the accused persons had used only lathi. There was no whisper as to whether any of the appellant was carrying any sharp cutting weapon, however it appears that after obtaining post-mortem report, they had come out with a case, as if, in the occurrence, farsa was used. 9. It has further been reiterated by learned counsel for the appellants that the prosecution has miserably failed in this case to establish the place of occurrence, since one witness has stated that occurrence had taken place near the door of the informant, whereas, one another witness has deposed, as if, occurrence had taken place in the field of Jokhan Yadav and thereafter, another witness has come out with a case that occurrence had taken place in the field of Naga Yadav and during cross-examination, the prosecution witnesses have stated that occurrence had taken place near the door of Chandrika Yadav (app. in Cr. App. DB No. 1267/10). in Cr. App. DB No. 1267/10). In sum and substance, it has been argued that ofcourse, all the witnesses, who were examined on behalf of the prosecution, except the Doctor, who conducted post-mortem, are own brothers of the deceased and no independent witness has come forward, they are not consistent on the point of the place of occurrence as well as manner of occurrence. 10. It has been argued that the entire prosecution case is required to be considered as 'doubtful', due to the reason that prosecution has suppressed the fact that there was case and counter case in between the parties. Sri Singh, learned counsel for the appellants has argued that at the stage of defence, copy of fardbeyan and F.I.R., in which appellant Chandrika Yadav was informant, were got exhibited as Ext.A and Ext.B respectively. The said F.I.R. makes it clear that the prosecution side were aggressor and they, on trivial issue, had arrived at the door of the appellant Chandrika Yadav and they had assaulted the appellants side. Despite the fact that there was case and counter case in between the parties, during entire prosecution evidence, none of the witnesses had whispered that any case was instituted by the appellants side or not and as such, in view of the fact that the prosecution has not come out with clean hands, certainly the appellants are entitled to get benefit of doubt. Sri Prabhat Kumar Singh, learned counsel for the appellants has argued that even in a case, in which, neither fardbeyan nor formal F.I.R. was got exhibited from the prosecution side and even investigating officer was not examined by the prosecution, the learned Trial Judge has passed the judgment of conviction and sentence, which is apparently incorrect and is liable to be interfered with. On aforesaid grounds, it has been argued that the appellants are entitled to clean acquittal and alternatively, it has been argued that by way of extending benefit of doubt, the judgment of conviction and sentence may be set aside. 11. Sri Satya Narayan Prasad, learned Addl. Public Prosecutor has opposed the appeals and he has argued that witnesses, who have deposed during trial, are also injured witnesses. He submits that all the three witnesses have stated that in the occurrence, they were also assaulted and as such, it has been argued by learned Addl. 11. Sri Satya Narayan Prasad, learned Addl. Public Prosecutor has opposed the appeals and he has argued that witnesses, who have deposed during trial, are also injured witnesses. He submits that all the three witnesses have stated that in the occurrence, they were also assaulted and as such, it has been argued by learned Addl. Public Prosecutor that this Court may refrain from interfering with the judgment of conviction and sentence. 12. Besides hearing learned counsel for the parties, we have minutely examined the entire evidence on record and after going through the same, prima facie, we are of the opinion that the prosecution has not been able to prove its case beyond all reasonable doubt. However before proceeding, it would be necessary to examine as to what the witnesses have deposed during the trial. 13. In this case, Bankey Yadav (brother of the deceased) is the informant and he was examined as P.W.3. In his evidence, he stated that on the date and time of occurrence, he was in his new house. He heard the cry of his brother Raghubir Yadav (P.W.2) and Buteshwar Yadav (deceased). Thereafter, he with his another brother Lal Babu (P.W.1) ran to the place from where sound of cry was coming. When they reached in the field of Jokhan Yadav, he saw that accused persons, namely Nokha Yadav (appellant in Cr. Appeal DB No. 1234 of 2010), Chandrika Yadav (appellant in Cr. Appeal DB No. 1267 of 2010), Rameshwar Yadav (appellant in Cr. Appeal DB No. 1185 of 2010), Bahadur Yadav, Dasai Yadav, Naga Yadav (all three died during trial) had surrounded Buteshwar Yadav (deceased) and Raghubir Yadav (P.W.2). Thereafter Nokha Yadav (app.in Cr. Appeal DB No. 1234/10) gave a farsa blow on the right arm of his brother Buteshwar Yadav, Chandrika Yadav (appellant in Cr. Appeal DB No. 1267 of 2010) gave lathi blow on his head and thereafter, all the accused persons started assaulting him by lathi. He (informant) and Lal Babu (P.W.1) tried to save, then Bahadur Yadav (since died) gave lathi blow on his head. Rahubir Yadav (P.W.2) was assaulted by Rameshwar Sah (appellant in Cr. Appeal DB No. 1185 of 2010) and thereafter, all the accused persons had assaulted. In paragraph-5 of his evidence, he stated that Raghubir (P.W.2), Lal Babu (P.W.1) and Buteshwar (deceased) were full brothers. Rahubir Yadav (P.W.2) was assaulted by Rameshwar Sah (appellant in Cr. Appeal DB No. 1185 of 2010) and thereafter, all the accused persons had assaulted. In paragraph-5 of his evidence, he stated that Raghubir (P.W.2), Lal Babu (P.W.1) and Buteshwar (deceased) were full brothers. He further, in paragraph 6, stated that in Ekma Hospital, Darogaji recorded his fardbeyan. In paragraph-8, he further accepted that Chandrika (appellant in Cr. Appeal DB No. 1267 of 2010) was his pattidar and in respect of partition of land, there was dispute. 14. Before coming to his evidence, it would be necessary to reiterate as to what this informant had stated in the fardbeyan. On going through the fardbeyan, of course same has not been exhibited, it is evident that the informant in his fardbeyan had not at all whispered as to whether any of the accused persons were carrying sharp cutting weapon or not, rather in specific term, it was stated by the informant that all the accused persons were carrying lathi in their hands. However, in his evidence, he has come out with a case, as if, farsa blow was given on the right arm of the deceased. At the time of recording fardbeyan, the brother of the informant (deceased) was already alive, however in the next morning, he died and inquest report was prepared at about 10:30 AM on 24-07-1993 in Primary Health Centra, Ekma. In his cross-examination, his attention was drawn to his previous statement, but since the investigating officer was not produced by the prosecution, the defence was prevented from getting any contradictions. Moreover, considering the fact that the informant had substantially developed its case during evidence, there is no reason to place much reliance on the evidence of this informant. 15. Similarly, P.W.1 (another brother of the informant and deceased) Lal Babu Yadav in his evidence has stated like P.W.3, but in cross-examination, he stated that occurrence had taken place in the field of Nokha Yadav (appellant in Cr. Appeal DB No. 1234 of 2010) and in paragraph-15 of his cross-examination, he stated that Chandrika (appellant in Cr. Appeal DB No.1267 of 2010) carrying lathi was in the field of Naga. In paragraph-13, he categorically stated that assault was made in the field of Naga Yadav, whereas in the evidence of informant Bankey Yadav, place of occurrence was shown as the field of Jokhan Yadav. Appeal DB No.1267 of 2010) carrying lathi was in the field of Naga. In paragraph-13, he categorically stated that assault was made in the field of Naga Yadav, whereas in the evidence of informant Bankey Yadav, place of occurrence was shown as the field of Jokhan Yadav. His attention was also drawn to his statement made before the police, but in absence of investigating officer, the defence was deprived to take any contradictions. 16. P.W.2 Raghubir Yadav is another brother of the informant & deceased and in paragraph - 3 of his examination-in-chief, he stated that on 23-07-1993 at about 3:30-4:00 PM, occurrence had taken place. At that very time, he along with two his brothers were in their old house, where all the accused persons arrived carrying farsa and lathi and thereafter, he started fleeing away and while they reached in the field of Jokhan Yadav, firstly Nokha Yadav (app.in Cr. Appeal DB No. 1234/10) gave farsa blow on the right shoulder of his brother Buteshwar Yadav (deceased). His attention was also drawn to his previous statement in paragraph-15 of his cross-examination. On being asked, he stated that in counter-case, he was accused. In paragraph-18 of his cross-examination, he deposed that amongst them, there was old dispute in relation to possession of land of old building, on which, they had already taken possession and after being asked to remove, they were quarreling. Again in paragraph-19 of his cross-examination, he stated that occurrence had taken place on the same land, where Chandrika Yadav (appellant in Cr. Appeal DB No. 1267 of 2010) was present. He further stated that he was asking him to remove ukn&[kwaVk (naad - khoota). In the meanwhile, Nokha Yadav (appellant in Cr. Appeal DB No. 1234 of 2010) arrived from the backside and gave farsa blow on Buteshwar, however; he died subsequently. His attention to his previous statement before the police was drawn, which was noticed in paragraph-23 of his cross-examination, but since investigating officer was not examined, the defence lost opportunity to get any contradiction. In paragraph-26, he denied the suggestion that the accused persons had put the iykuh (palani) on fire, rather he stated that it was done by Chandrika Yadav (appellant in Cr. Appeal DB No. 1267 of 2010) with a view to take defence. 17. In paragraph-26, he denied the suggestion that the accused persons had put the iykuh (palani) on fire, rather he stated that it was done by Chandrika Yadav (appellant in Cr. Appeal DB No. 1267 of 2010) with a view to take defence. 17. P.W.4 Sursati Devi (wife of deceased) was only tendered and as such, there is no need to examine anything in respect of her evidence. 18. The Doctor, who conducted post-mortem examination, was examined as P.W.5. Dr. Syed Md. Mustaque was on 24-07-1993 was posted as Civil Assistant Surgeon, Sadar Hospital, Saran at Chapra and on the same date, he conducted post-mortem examination on the dead body of Buteshwar Yadav and he found following ante-mortem injury : "(i) Stitched wound about 2 3/4" in depth on right parietal region of scalp. (ii) Stitched wound about 2 1/2" in length on occipital region of scalp. (iii) Incised wound on back of right shoulder size of wound 5" x 1/7" x skull deep. (iv) Bruise on left shoulder 5" x 2 1/2". On dissection, injury no. (i) incised wound size of wound 2 3/4" x 1/3" x scalp deep. Injury No. (ii) incised wound size of wound 2 1/2" x 1/4" x bone deep. On dissection of skull, fracture of occipital bone of skull was found and laceration of all layers meninges with laceration of brain matter. Collection of blood clots on the brain matter. Opinion:- Death has been caused due to haemorrhage and shock, and injury to the vital centre in brain from above mentioned injury no. (i) and (ii) caused by sharp cutting weapons, may be farsa or sharp-edged rod. Time elapsed since death - within twelve to eighteen hours. Time of P.M. examination 12:30 P.M. on the same day." The doctor (P.W.5) opined that death was caused due to haemorrhage and shock. He clarified that injury no. (i) & (ii) were caused by sharp cutting weapon. He further stated that the post-mortem report was in his pen and signature and it was marked as Ext.2. In paragraph-5 of his cross-examination, he stated that all the injuries i.e. (i), (ii) and (iii) may be caused by sharp cutting weapon and not by hard & blunt substance. Only in respect of injury no. (iv), he stated that it can be caused by fall or hard & blunt substance. 19. In paragraph-5 of his cross-examination, he stated that all the injuries i.e. (i), (ii) and (iii) may be caused by sharp cutting weapon and not by hard & blunt substance. Only in respect of injury no. (iv), he stated that it can be caused by fall or hard & blunt substance. 19. On examination of the evidence of P.W.5 as well as on examination of post-mortem report, it is evident that most of the injuries, found on the person of the deceased, were caused by sharp cutting weapon, however initial version of the prosecution was that in the occurrence, accused persons were carrying only lathi, nothing was whispered as to whether any of the accused was carrying any sharp cutting weapon, however during trial, they developed the story, as if, the accused persons were carrying farsa and same was used. 20. The submission made by learned counsel for the appellants that after obtaining post-mortem examination report and noticing that dead body was having sharp cut injury, the prosecution had developed the story and introduced farsa as one of the weapon, which was being carried by the accused persons, appears to be more believable and we are in agreement with the submission of learned counsel for the appellants, particularly on this issue. 21. On examination of entire evidence, we are of the considered opinion that prosecution has not been able to establish the place of occurrence. In a criminal trial, establishment of the place of occurrence is one of the most important ingredient for coming to the conclusion regarding the commission of offences. However, in the present case, the witnesses, who are none else, but own brother of the deceased themselves, had deviated in their evidence regarding the place of occurrence. One of the witness has stated that occurrence taken place in the field of Nokha Yadav (appellant in Cr. Appeal DB No.1234 of 2010), another has said that occurrence had taken place in the field of Jokhan Yadav and P.W.2 had stated that occurrence had taken place in the field, which was appertaining to old house regarding which, there was already dispute in between the parties and this witness (P.W.2) had stated, as if, the appellants side had forcibly taken possession of the land and put ukn&[kwaVk (naad - khoota) there and the prosecution side were persisting them to remove the same and this was the reason for the occurrence. In any view of the matter, on examination of entire evidence, it is difficult to come to specific conclusion as to which was the place of occurrence. However, at this juncture, if we notice Ext. A and Ext. B, which have been brought on record on behalf of defence, there is reason to believe that occurrence had taken place near the house of Chandrika Yadav (appellant in Cr. Appeal DB No. 1267 of 2010). The appellant Chandrika Yadav, who is informant in Ekma P.S. Case No. 67 of 1993, has alleged that deceased along with all his brothers, who are P.W.1, P.W.2 had arrived at his door and on a trivial dispute in between the female inmates, they assaulted them. The fardbeyan of Chandrika Yadav was recorded on the same date i.e. 23-07-1993 in Primary Health Centra, Ekma, in which all the brothers of the informant and Others were arrayed as accused. Certainly only on the basis of fact disclosed in the fardbayan of Chandrika Yadav (appellant in Cr. Appeal DB No.1267 of 2010), it would not be appropriate to come to the conclusion that the prosecution side were aggressor, but in any event, since the fact regarding counter case was suppressed by all the prosecution witnesses, the evidence of prosecution witnesses comes within the cloud of doubt and in such situation, it would not be appropriate to place much reliance on the prosecution case. Moreover, without any plausible explanation during trial, none of the independent witness has come forward. The investigating officer, whose examination was essential, in view of the fact that attention of all the witnesses to their previous statement recorded during investigation under Section 161 of the Cr.P.C. was drawn, the non-examination of the investigation officer has seriously prejudiced the case of the defence. 22. Considering the fact that the prosecution during the trial had developed its case and changed the initial version, non-examination of any independent witness, non-examination of the investigating officer, not getting fardbeyan & F.I.R. exhibited, non-establishment of place of occurrence and the fact that prosecution has not come out with clean hands creates serious doubt on the prosecution case. In such situation, it would be difficult to approve the judgment of conviction and sentence. In such situation, it would be difficult to approve the judgment of conviction and sentence. We are of the considered opinion that the prosecution has miserably failed to establish its case beyond all reasonable doubt and as such, by way of extending benefit of doubt, it is necessary to interfere with the judgment of conviction and sentence. 23. Accordingly, the judgment of conviction dated 04-09-2010 and order of sentence dated 15-09-2010 passed in Sessions Trial No.785 of 1994 (arising out of Ekma P.S. Case No. 66 of 1993) by Sri Ajay Nath Jha, learned Additional District & Sessions Judge, Fast Track Court No. III, Saran at Chapra is hereby set aside and all the aforesaid three appeals are allowed. 24. The appellant Chandrika Yadav {in Cr. Appeal (DB) No. 1267 of 2010} is in jail and since the judgment of conviction and sentence has been set aside, it is, hereby, directed to release him forthwith, if not wanted in any other case. Other two appellants namely Rameshwar Sah @ Rajeshwar Sah {in Cr. Appeal (DB) No. 1185 of 2010} and Nokha Yadav @ Sheo Yadav {in Cr. Appeal (DB) No. 1234 of 2010} are on bail and as such, they are discharged from the liability of their bail-bonds.