JUDGMENT : Hemant Kumar Srivastava, J. Both the above stated appeals have been preferred against the impugned judgment of conviction and sentence order dated 06.03.1995 passed by learned 2nd Additional Sessions Judge, Sitamarhi in Sessions Trial No. 269 of 1993/72 of 1993 by which and where under the learned Additional Sessions Judge, Sitamarhi convicted the appellant in Criminal Appeal (DB) No. 42 of 1995, namely, Arun Kumar Singh for the offences punishable under Sections 302/34, 148 and 324 of the I.P.C. whereas appellants in Criminal Appeal (DB) No. 30 of 1995, namely, Birendra Prasad Singh @ Birendra Singh, Sanjay Kumar Singh @ Sanjay Singh, Vijay Kumar Singh @ Vijay Singh and Kaushlendra Singh were convicted for the offences punishable under Sections 302/34, 147 and 323 of the I.P.C. and accordingly, the learned Additional Sessions Judge sentenced the appellants to undergo rigorous imprisonment for life for the offence punishable under Section 302/34 of the I.P.C. The appellant Arun Kumar Singh was, separately, sentenced to undergo rigorous imprisonment for two years each for the offences punishable under Sections 148 and 324 of the I.P.C. whereas remaining appellants were sentenced to undergo rigorous imprisonment for one year each for the offences punishable under Sections 147 and 323 of the I.P.C. However, all the sentences were ordered to run concurrently. 2. It is pertinent to note here that appellant Arun Kumar Singh was convicted for the offence punishable under Section 302 of the I.P.C. but no separate sentence was imposed upon him for the offence punishable under Section 302/34 of the I.PC. However, the appellant Arun Kumar Singh was acquitted of the charge framed under Section 379 of the I.P.C. whereas co-accused Parbhat Singh, Satish Singh, Manoj Singh and Hari Shankar Singh were also acquitted of the charges framed against them. 3. Since the above stated appeals have arisen out of common judgment of conviction and sentence order, the aforesaid appeals were heard together and are being disposed of by this common judgment. 4. Pw-9 Jitendra Prasad Singh gave his ferdbeyan to PW-10 Vijay Kumar Shrivastava on 16.07.1993 at 9:45 P.M. to this effect that on the same day, he along with PW-4 Nagendra Prasad Singh and his nephew-deceased Gauri Singh as well as his son, namely, Uday Shankar Singh (PW-1) were returning to their home from Sirsi Chowk. 4. Pw-9 Jitendra Prasad Singh gave his ferdbeyan to PW-10 Vijay Kumar Shrivastava on 16.07.1993 at 9:45 P.M. to this effect that on the same day, he along with PW-4 Nagendra Prasad Singh and his nephew-deceased Gauri Singh as well as his son, namely, Uday Shankar Singh (PW-1) were returning to their home from Sirsi Chowk. He as well as PW-4 were on same cycle whereas deceased Gauri Singh and PW-1 Uday Shankar Singh were on motorcycle. The cycle was being driven by him whereas PW-4 was pillion rider and the motorcycle was being driven by the deceased Gauri Singh and PW-1 was pillion rider. He, further, stated that the deceased Gauri Singh and PW-1 were following his cycle and at about 7:30 P.M. when they reached in front of door of Parbhat Singh, he saw that a rope was tied with electric pole towards east side and on the other side of the rope, appellant Arun Singh was holding the said rope by his left hand and was carrying farsa in his right hand. Parbhat Singh was holding rope by left hand whereas carrying bhala in his right hand and Satish Singh was holding rope by his left hand and keeping Nalkatua in his right hand. Birendra Singh was holding rope by his left hand and keeping lathi in his right hand whereas the acquitted accused persons were, too, standing there having lathi in their hands. He, further, claimed that as soon as he as well as PW-4 reached near the rope by cycle, appellant Arun Kumar Singh asked them to proceed ahead but he stopped there. In the meantime, deceased Gauri Singh and his son Uday Shankar Singh (PW-1), too, reached there on motorcycle and as soon as deceased stopped his motorcycle, appellant Arun Kumar Singh left the rope and gave farsa blow on the head of the deceased Gauri Singh as a result whereof deceased Gauri Singh fell down on the ground. He, further, claimed that he as well as PW-4 Nagendra Prasad Singh proceeded ahead to save Gauri Singh but Satish Singh opened fire of his Nalkatua and threatened them to kill, if they make any attempt to save Gauri Singh as a result of which they retreated out of fear. He, further, claimed that he as well as PW-4 Nagendra Prasad Singh proceeded ahead to save Gauri Singh but Satish Singh opened fire of his Nalkatua and threatened them to kill, if they make any attempt to save Gauri Singh as a result of which they retreated out of fear. He, further, claimed that Parbhat Singh gave bhala blow to Gauri Singh and after that Birendra Singh, Manoj Singh, Kaushlendra Singh, Hari Shankar Singh, Sanjay Singh and Vijay Singh started assaulting the deceased Gauri Singh by means of lathi and all the aforesaid persons started dragging the deceased towards the door of appellant Arun Kumar Singh upon which he raised alarm which attracted PW-3 Ram Padarath Singh, PW-6 Baliram Singh and several other persons. He, further, claimed that deceased Gauri Singh was taken to the door of appellant Arun Singh where Arun Singh by means of Garasa, Parbhat Singh by means of bhala and Birendra Singh, Kaushlendra Singh, Harishankar Singh, Sanjay Singh, Vijay Singh and Manoj Singh by means of bricks and lathi started assaulting the deceased Gauri Singh. Satish Singh also assaulted the deceased Gauri Singh by means of butt of Nalkatua. The villagers ran to save the deceased Gauri Singh and seeing the villagers, the aforesaid persons fled away from there but while fleeing away from there they also took away motorcycle of the deceased. After the aforesaid occurrence, deceased Gauri Singh, who was badly injured, was being taken to Nanpur Hospital on a cot for treatment but he breathed his last on his way and after that PW-9 alongwith dead body of Gauri Singh went to Nanpur police station where he gave his above stated statement before the PW-10. PW-9 claimed that the alleged occurrence took place due to old enmity with Birendra Singh dealer and Arun Singh. PW-9, further, claimed that all the aforesaid persons committed the murder of the deceased and fled away with motorcycle of the deceased due to previous enmity. 5. On the basis of aforesaid statement of PW-9, Nanpur P.S. Case No. 52 of 1993 was registered against the appellants and acquitted accused for the offences punishable under Sections 147, 148, 149, 302, 341, 323, 324, 337, 379 of the I.P.C. 6. 5. On the basis of aforesaid statement of PW-9, Nanpur P.S. Case No. 52 of 1993 was registered against the appellants and acquitted accused for the offences punishable under Sections 147, 148, 149, 302, 341, 323, 324, 337, 379 of the I.P.C. 6. Pw-10, the then Officer-in-charge of Nanpur police station, took the charge of investigation, recorded the statement of PW-9, inspected the place of occurrence, seized two lathies, two farsa, bloodstained soil from the place of occurrence and also recovered cartridge of one countrymade Nalkatua from the house of Parbhat Singh. He also prepared inquest report and recorded the statements of prosecution witnesses and also recovered motorcycle of deceased from Sareh. Moreover, after completion of investigation, he submitted charge sheet against the appellants and acquitted co-accused persons. The cognizance of the offence was taken and the case was committed to the court of sessions in usual way. 7. All the appellants and acquitted accused, namely, Parbhat Singh, Manoj Singh and Harishankar Singh stood charged for the offence punishable under Section 302/34 of the I.P.C. whereas appellants Birendra Singh, Sanjay Singh, Vijay Singh, Kaushlendra Singh and acquitted accused Manoj Singh as well as Hari Shankar Singh stood charged for the offences punishable under Sections 147 and 323 of the I.P.C. Appellant Arun Kumar Singh was, separately, charged for the offence punishable under Section 379 of the I.P.C. whereas aforesaid appellant Arun Kumar Singh along with acquitted accused Parbhat Singh stood charged for the offences punishable under Sections 324 and 148 of the I.P.C. and acquitted accused Satish Kumar Singh stood charged, separately, for the offence punishable under Sections 148, 302/34 of the I.P.C. The appellants and acquitted accused denied the charges and claimed to be tried. 8. In order to prove its case, prosecution examined, altogether, 13 witnesses and got exhibited some documents. The statements of appellants and acquitted accused were recorded under Section 313 of the Cr.P.C. in which they reiterated their innocence. The defence also got examined three defence witnesses and got exhibited certain documents in their defence. 9. The learned court below after scrutinizing the evidences available on the record, convicted and sentenced the appellants whereas acquitted the other accused in the manner as stated above having relied upon testimonies of prosecution witnesses as well as documentary evidences adduced on behalf of the prosecution. 10. Learned Senior Advocate Mr. 9. The learned court below after scrutinizing the evidences available on the record, convicted and sentenced the appellants whereas acquitted the other accused in the manner as stated above having relied upon testimonies of prosecution witnesses as well as documentary evidences adduced on behalf of the prosecution. 10. Learned Senior Advocate Mr. K.P. Singh appearing for the appellants challenged the impugned judgment of conviction and sentence order arguing that the learned trial court failed to appreciate the evidences in its right perspective. He submitted that PW-1, PW-4 and PW-9 claimed that they were accompanying the deceased at the time of alleged occurrence but the aforesaid claim of above stated prosecution witnesses does not appear to be probable because had the aforesaid witnesses accompanied the deceased at the time of alleged occurrence, they would have certainly sustained injury in the occurrence and had they been present on the place of occurrence when occurrence took place, they would not have been spared by the assailants of the deceased but admittedly, PW-1, PW-4 and PW-9 had not even been slapped by the assailants of the deceased. 11. Learned Senior Counsel, further, submitted that prosecution witnesses claimed that appellants and other accused were waiting for the deceased but there was nothing before the trial court to show that appellants and other accused had any information about the arrival of the deceased and, therefore, the above stated claim of prosecution witnesses appears to be doubtful. 12. Learned Senior Counsel, further, submitted that according to prosecution case, when deceased and others reached in front of door of acquitted accused Parbhat Singh, he was badly assaulted by the appellants and others and, thereafter, he was dragged and taken to the door of appellant Arun. He submitted that the aforesaid fact goes to show that the alleged occurrence had taken place at two different places and it is also an admitted case of the prosecution that while deceased was being assaulted on the first place of occurrence, all the appellants and other accused were armed with deadly weapons such as bhala, farsa and nalkatua etc. but admittedly, no firearm was used in committing the murder of the deceased. but admittedly, no firearm was used in committing the murder of the deceased. He, further, submitted that there was no occasion before the appellants and other accused to take the deceased in front of door of appellant Arun and had the appellants intention to commit the murder of the deceased, they would have committed the murder of the deceased on the first place of occurrence itself. Therefore, the above stated story of the prosecution appears to be absurd. 13. Learned Senior counsel, further, submitted that PW9 claimed in his statement before the PW-10 that after the occurrence, the appellants and other accused took away the motorcycle of the deceased and according to PW-10, the aforesaid motorcycle was recovered from a Sareh on next day of the alleged occurrence. However, nothing was brought on record to show that recovered motorcycle was of the deceased. He, further, submitted that the witnesses made contradictory statements in respect of taking away the motorcycle of the deceased and that was the reason the learned trial court acquitted the appellant Arun Kumar Singh of the charge framed under Section 379 of the I.P.C. 14. Learned Senior counsel next submitted that PW-10 admitted that some weapons were recovered from the first place of occurrence when he inspected the first place of occurrence but the prosecution witnesses claimed that deceased was taken to the door of appellant Arun Kumar Singh from the first place of occurrence and the prosecution witnesses have, nowhere, stated that the appellants and other accused had left their belongings including weapons on the first place of occurrence rather they claimed that when deceased was dragged to the door of appellant Arun Singh, the appellants and other accused were carrying their respective weapons. 15. Learned Senior counsel, next, submitted that no trail of blood was found between first and second place of occurrence and moreover, the seized weapons were not sent for chemical examination nor produced before the trial court in course of trial. 16. Learned Senior counsel, next, submitted that since the appellants and acquitted accused had no intention to kill the deceased nor they had any knowledge that the injuries caused to deceased may cause his death, therefore, at best, the appellants could have been convicted for the offence punishable under Section 324 of the IPC. 17. 16. Learned Senior counsel, next, submitted that since the appellants and acquitted accused had no intention to kill the deceased nor they had any knowledge that the injuries caused to deceased may cause his death, therefore, at best, the appellants could have been convicted for the offence punishable under Section 324 of the IPC. 17. Learned Senior counsel, further, submitted that according to prosecution case, the alleged occurrence took place at about 7:30 PM. and it is a matter of common sense that at about 7:30 P.M. there would be complete dark and the prosecution has not disclosed the source of identification and, therefore, the claim of so-called eye witnesses to have seen the appellants and other accused assaulting the deceased appears to be doubtful. 18. Learned Senior counsel, further, submitted that moreover, on the same set of evidence, the learned trial court acquitted some co-accused whereas convicted the appellants and, therefore, in the aforesaid circumstance, the appellants are entitled to get the benefit of doubt. 19. On the other hand, learned Additional Public Prosecutor supported the impugned judgment of conviction and sentence order arguing that all the eye witnesses claimed to have seen the appellants assaulting the deceased and the appellants committed the murder of the deceased in pre-planned manner and moreover, non sending of blood and weapons for chemical examination was not fatal to the prosecution case because the appellants can not get any benefit of laxity of PW-10. He, further, submitted that even if this court finds contradictions in the statements of prosecution witnesses, then also, the said contradictions are of minor nature which do not go to the root of the prosecution case and, therefore, there is no need to interfere into the findings of learned trial court. 20. First of all we would like to refer the evidence of PW-2 Alok Kumar Singh, who had conducted post mortem examination on the corpus of the deceased on 17.07.1993 at 12:40 P.M. This witness stated that he found following ante mortem injuries on the person of the deceased Gauri Singh:- External Injuries- 1. Sharp cut over left occipto parietal region 2 1/2" x 1/2" upto bone deep. 2. Sharp cut over chin 2" x 1/4" x bone deep. 3. Abrasion over the back of right forearm 3" x 2" 4. Sharp cut over left occipto parietal region 2 1/2" x 1/2" upto bone deep. 2. Sharp cut over chin 2" x 1/4" x bone deep. 3. Abrasion over the back of right forearm 3" x 2" 4. Lacerated wound with compound fracture of ring and little fingers of left hand with diffused swelling of palm. 5. Sharp cut over right dorsem of foot 2" x 1/2" x 1/8" 6. Abrasion over the dorsem of left foot 1.5" x 1/2" 7. Multiple abrasions of various sizes over left leg. Internal Injuries:- (a) On opening of skull, cranium was found intact and brain matter was pale. (b) on opening of thorax, both the lungs were normal and pale, heart was intact and chambers were partially filled with blood. (c) on opening of abdominal cavity, all abdominal visceras were intact and pale, stomach contained semi-digested food particles, urinary bladder was partially filled. PW-2, further, stated that injury no. 1, 2 and 5 had been caused by sharp instrument whereas remaining injuries had been caused by hard and blunt substance. PW-2 opined that injury no. 1 and 2 might by caused by farsa and injury no. 5 might be caused by sharp edge of bhala whereas rest injuries might by caused by lathi, brick and stone. He, further, stated that as there were several abrasions and overlapping one to another, it was difficult to measure separately and, therefore, he had written that the abrasions were in various sizes. He also opined on the basis of rigor mortis that death was caused within 24 hours of the post mortem examination. This witness, further, stated that death was caused due to haemorrhage and shock due to above stated injuries and the aforesaid injuries were sufficient to cause death in the ordinary course of nature. This witness has proved post mortem report as Ext. 1. On being cross examined, this witness admitted that injuries no. 1, 2 and 5 were simple in nature and except injury no. 4, all the other remaining injuries were also simple in nature. This witness, further, admitted that if farsa blow is given on head with force, the same will also cut the bone. 1. On being cross examined, this witness admitted that injuries no. 1, 2 and 5 were simple in nature and except injury no. 4, all the other remaining injuries were also simple in nature. This witness, further, admitted that if farsa blow is given on head with force, the same will also cut the bone. This witness also admitted that bhala is a sharp penetrating weapon and if pointed portion of bhala hits the body, the said hit will cause penetrating wound but sharper edge of bhala may cause cut injury and, therefore, if bhala is used as a lathi, only then it will cause sharp cut wound. This witness, further, admitted that he had not described the numbers of abrasions because due to overlapping of abrasions it was not possible to measure them. This witness also admitted that any single injury of the deceased was itself not sufficient to cause his death. 21. The perusal of statement of PW-2 as well as Ext. 1 the post mortem report of the deceased go to show that deceased had sustained altogether seven injuries but out of them, only one injury i.e. compound fracture of ring and little fingers of left hand were found grievous in nature. The statement of PW-2 and post mortem report also go to show that PW-2 claimed to have found several abrasions on the person of the deceased but he did not mention the number of aforesaid abrasions. This witness has, himself, admitted that measurement of aforesaid abrasions were not possible due to overlapping of abrasions one to another. The statement of this witness also goes to show that sharp cutting weapon was used in the assault of the deceased but while assaulting the deceased the aforesaid sharp cut weapon was not used with much force as no bone cut was found on the person of the deceased, said to be caused by farsa. Furthermore, the statement of PW-2 as well as Ext. 1 also go to show that no internal injury was found on the person of the deceased. No doubt, PW-2 found one grievous injury on the person of the deceased but that grievous injury was on the ring and little fingers of left hand of the deceased and, therefore, the aforesaid grievous injury was also not on the vital part of the deceased. No doubt, PW-2 found one grievous injury on the person of the deceased but that grievous injury was on the ring and little fingers of left hand of the deceased and, therefore, the aforesaid grievous injury was also not on the vital part of the deceased. Furthermore, PW-2 has admitted that any single injury of the deceased was not sufficient to cause death of the deceased in ordinary course of nature and, therefore, it is obvious that this witness gave his opinion that injuries of the deceased were sufficient to cause his death in ordinary course of nature on the basis of cumulative effect of the aforesaid injuries. It is also obvious from the statement of PW-2 that except one injury that was, too, on the ring and little fingers of left hand of the deceased, all the injuries were simple in nature. 22. Pw-1 Uday Shankar Singh, PW-3 Ram Pdarth Singh, PW-4 Nagendra Prasad Singh, PW-6 Baliram Singh, PW-7 Ramashankar Singh and PW-9 Jitendra Prasad Singh claimed themselves to be eye witness of the alleged occurrence but according to prosecution case itself, the alleged occurrence took place at two different places. PW-1, PW-4 and PW-9 claimed to have seen the entire occurrence meaning thereby that they claimed to have witnessed the occurrence of both the places. Although, PW-3, PW-6 and PW-7 also posed themselves to have witnessed the occurrence of both the places but after minute scrutiny of the testimonies of above stated witnesses, it is obvious that they claimed to have witnessed the occurrence which had taken place on second place of occurrence. 23. Pw-1 Uday Shankar Singh claimed that he along with PW-4, PW-9 and deceased was returning to his home from Sirsi Chowk and at that time he as well as deceased were on a motorcycle whereas PW-4 and PW-9 were returning by cycle. This witness, further, claims that he as well as deceased were following the PW-4 and PW-9. This witness, further, claims that he as well as deceased Gauri Shankar reached on the pitch road situated in front of house of FIR named accused Prabhat Singh and saw the appellants and others standing there having armed with various weapons. This witness, specifically, claims that appellant Arun Singh was armed with farsa, acquitted accused Parbhat Singh was armed with bhala, acquitted accused Satish Singh was armed with Nalkatua whereas remaining persons were armed with lathi. This witness, specifically, claims that appellant Arun Singh was armed with farsa, acquitted accused Parbhat Singh was armed with bhala, acquitted accused Satish Singh was armed with Nalkatua whereas remaining persons were armed with lathi. This witness, further, claims that PW-4 and PW-9 had already reached on the above stated pitch road before arrival of him and deceased Gauri Shankar. This witness claims that motorcycle was being driven by deceased Gauri Singh and as soon as he reached over the first place of occurrence, deceased Gauri Singh stopped the motorcycle as the appellants and other accused had blocked the road by a rope. This witness, further, claims that appellant Arun Singh hurled farsa on deceased Gauri Singh as a result of which having sustained farsa injury deceased Gauri Singh fell down on the ground and after that acquitted accused Parbhat Singh assaulted him by means of bhala. This witness, further, claims that he along with PW-4 and PW-9 proceeded ahead with an object to save the deceased Gauri Singh but acquitted accused Satish Singh opened fire from his nalkatua and threatened them not to proceed ahead otherwise he would shoot them. This witness, further, claims that appellants and other accused picked up the deceased Gauri Singh and started fleeing with deceased Gauri Singh. He claims that he as well as others raised alarm which attracted PW-3 Ram Pdarth Singh, PW-6 Baliram Singh, PW-5 Satyendra Prasad Singh and others. This witness, further, claims that he as well as others went near the door of appellant Arun Singh where they saw that appellant Arun Singh was assaulting the deceased Gauri Singh by means of farsa whereas acquitted accused Parbhat Singh again gave bhala blow to deceased whereas acquitted accused Satish Singh assaulted the deceased by means of butt of nalkatua and other appellants and co-accused assaulted the deceased by lathi, bricks and stones. This witness, further, states that motorcycle of the deceased was left at the first place of occurrence. On being cross examined by the defence, this witness admitted that appellants and other accused had made him accused in a criminal case registered under Section 307 of the I.P.C. This witness also admitted that one Bijli Singh (Mukhiya) had lodged criminal case against him, deceased Gauri Singh and others. On being cross examined by the defence, this witness admitted that appellants and other accused had made him accused in a criminal case registered under Section 307 of the I.P.C. This witness also admitted that one Bijli Singh (Mukhiya) had lodged criminal case against him, deceased Gauri Singh and others. This witness expressed his inability to say as to whether the appellants and other accused had filed any criminal case against him as well as his other family members for the occurrence of the same day. The attention of this witness was drawn by the defence towards topography of both the places of occurrence and this witness admitted that there were two passages to go his house from the Sirsi Chowk. The evidence of this witness goes to show that the appellants and other accused firstly assaulted the deceased on pitch road situated in front of baithka of acquitted accused Parbhat Singh and after that deceased was taken to sahan of appellant Arun Singh and he was again assaulted by appellants and others at the sahan of appellant Arun singh. This witness also admitted that pitch road situated in front of baithka of Parbhat Singh turns towards west side at the distance of 6 to 7 lagga from the baithka of Parbhat Singh and again turns towards south side. This witness also admitted that one kachchi road goes towards west side from the above stated turning point and the aforesaid kachchi road goes towards the house of appellant Arun Singh. This witness says that the house of appellant Arun Singh was at the distance of about 30 to 40 lagga from the above stated turning point. This witness also admitted that appellants and others had not assaulted him as well as other witnesses except deceased Gauri singh but they had threatened them to kill and acquitted accused Satish Singh had opened fire in air with an object to terrorize them. This witness also admitted that appellants and others had not assaulted the deceased Gauri Singh while he was being carried to the sahan of appellant Arun Singh. This witness also claims that while the deceased was being assaulted at the sahan of appellant Arun Singh, he saw the occurrence from the distance of one lagga and similarly, he had witnessed the first phase of occurrence from the distance of near about one lagga. This witness also claims that while the deceased was being assaulted at the sahan of appellant Arun Singh, he saw the occurrence from the distance of one lagga and similarly, he had witnessed the first phase of occurrence from the distance of near about one lagga. The attention of this witness was drawn towards his previous statement and defence, specifically, drew the attention of this witness towards this fact that he had made statement before the investigating officer that while deceased was being taken to the door of appellant Arun Singh, PW-3 Ram Pdarth Singh, PW-6 Baliram Singh and others were present there. The statement of this witness goes to show that PW3 and PW-6 had not seen the first phase of occurrence. Furthermore, the statement of this witness also goes to show that appellants and others had not taken any step to assault the witnesses. Furthermore, the statement of this witness also goes to show that deceased was stopped in front of house of acquitted accused Parbhat Singh and at that time appellants and other accused were armed with deadly weapons including firearm but admittedly, no firearm was used for causing injury to deceased and according to this witness as well as prosecution case, the appellants and others assaulted the deceased by means of farsa, bhala, lathi, bricks and stones. It is pertinent to note here that no penetrating injury was found on the person of the deceased and taking note of the aforesaid fact, the learned trial court acquitted the co-accused Parbhat Singh. Similarly, no nalkatua was recovered from both the places of occurrence and noting the aforesaid fact the learned trial court acquitted the co-accused Satish Singh giving him benefit of doubt. Moreover, the statement of this witness clearly goes to show that deceased was assaulted at two different places and the distance between aforesaid two places was more than 100 yards. Similarly, no nalkatua was recovered from both the places of occurrence and noting the aforesaid fact the learned trial court acquitted the co-accused Satish Singh giving him benefit of doubt. Moreover, the statement of this witness clearly goes to show that deceased was assaulted at two different places and the distance between aforesaid two places was more than 100 yards. Therefore, the aforesaid fact goes to show that appellants and other FIR named accused had no intention to commit the murder of the deceased because had they intention to commit the murder of the deceased, they would have certainly committed the murder of the deceased by assaulting him with several dreaded weapons as well as by using firearms at the first place of occurrence itself but admittedly, no firearm was used for causing injury to deceased either at the first place of occurrence or at the second place of occurrence. Furthermore, PW1 has admitted that when the deceased was being taken to the sahan of appellant Arun Singh, he was not being assaulted by the accused persons so the aforesaid fact also clearly indicates that appellants and other accused had no intention to commit the murder of the deceased. 24. Pw-4 Nagendra Prasad Singh also repeated the same story in his examination in chief which has been told by PW-1 before the trial court. This witness, frankly, stated at para 3 of his examination in chief that when the deceased was stopped by the appellants and other accused at first place of occurrence, appellant Arun Singh hurled farsa causing head injury to deceased and after that Parbhat Singh hurled bhala and other appellants and accused assaulted him with lathi. This witness, although, claims that deceased was taken to the door of appellant Arun Singh where deceased was again assaulted by the appellants and others but admittedly, he has given vague and omnibus allegation of assault on the deceased at second place of occurrence. PW-4, further, claims in his examination in chief that police came in midnight and in his presence two farsa, two lathies and bloodstained soil were seized and out of the aforesaid two farsa, one farsa contained blood. This witness claims that police prepared seizure list in his presence. PW-4, further, claims in his examination in chief that police came in midnight and in his presence two farsa, two lathies and bloodstained soil were seized and out of the aforesaid two farsa, one farsa contained blood. This witness claims that police prepared seizure list in his presence. This witness admitted in his cross examination that while he as well as others were going to Sirsi Chowk, they did not meet the appellants and other accused on their way and for the first time, he as well as others saw the appellants and other accused in front of baithka of acquitted accused Parbhat Singh. This witness also admitted that appellants and other accused had not assaulted him. This witness also claims that he, too, went near the second place of occurrence following appellants and other accused. This witness also claims that the appellants and other accused assaulted the deceased by their respective weapons indiscriminately at the door of appellant Arun Singh. This witness further, claims that two farsa and two lathies were seized from the door of appellant Arun Singh. This witness also claims that he had not seen the trail of blood between first place of occurrence and second place of occurrence. 25. Pw-9 Jitendra Prasad Singh also repeated the same story which has been claimed by the PW-1 and PW-4. This witness also claimed that appellant Arun Kumar Singh hurled farsa causing head injury to deceased over the first place of occurrence. This witness also claimed that when deceased Gauri Singh was being carried to the door of appellant Arun Kumar Singh, he as well as others raised alarm which attracted Baliram Singh, Ram Padarath Singh and others. This witness claims that when the deceased Gauri Singh was brought at the door of appellant Arun Singh, appellant Arun Singh again gave farsa blow to deceased Gauri Singh whereas acquitted accused Parbhat Singh and acquitted accused Satish Singh assaulted him by means of bhala and butt of nalkatua respectively and so far as remaining appellants and others are concerned, they assaulted the deceased with lathi and bricks indiscriminately. This witness, further, stated that motorcycle of the deceased was taken away by the appellant Arun Singh. This witness, for the first time, disclosed that appellant no. This witness, further, stated that motorcycle of the deceased was taken away by the appellant Arun Singh. This witness, for the first time, disclosed that appellant no. 1 in Criminal Appeal (DB) No. 30 of 1995, namely, Birendra Prasad Singh @ Birendra Singh was a P.D.S. dealer and deceased Gauri Singh had given a petition before the S.D.O., Pupri against him making complaint of irregularities committed by the aforesaid appellant and that was the reason the appellants and others committed the murder of the deceased Gauri Singh. On being cross examined, this witness admitted that prior to the alleged occurrence, one Bijli Prasad Singh had lodged criminal case against PW-1 and deceased Gauri Singh. He also admitted that he had taken loan from the bank and Birendra Singh stood his guarantor but subsequently, he withdrew himself from the aforesaid guarantee. This witness admitted that acquitted accused Parbhat Singh assaulted the deceased on his foot by means of bhala. This witness also admitted that appellants and others had not assaulted him and furthermore, this witness admitted that while the deceased was being taken to the door of appellant Arun Singh, the appellants and others did not assault him. This witness also admitted that at the second place of occurrence appellant Arun Singh and acquitted accused Parbhat Singh gave one farsa and one bhala blow respectively whereas the remaining persons who were carrying lathi gave lathi blow to the deceased. 26. Pw-3 Ram Padarth Singh claimed that having heard the noise he went at the door of appellant Arun Kumar Singh where he saw deceased Gauri lying on the ground and the appellant Arun Kumar Singh was assaulting him by farsa. This witness further, claimed that co-accused Parbhat Singh and Satish Singh were assaulting the deceased Gauri Singh by means of bhala and nalkatua respectively whereas co-accused Manoj Singh was assaulting the deceased Gauri Singh by bricks and remaining appellants were assaulting him by means of lathi. This witness also claimed that in his presence two lathies, two farsa and bloodstained earth were seized by the police from the door of appellant Arun Singh. The statement of this witness goes to show that he had seen the occurrence which had taken place at the door of appellant Arun Singh. This witness also claimed that in his presence two lathies, two farsa and bloodstained earth were seized by the police from the door of appellant Arun Singh. The statement of this witness goes to show that he had seen the occurrence which had taken place at the door of appellant Arun Singh. Furthermore, the claim of this witness reflects that lathi and farsa were recovered from the place of occurrence but no bhala was recovered from there. This witness admitted that he along with PW-5, PW-6, PW-4, PW-9 and several other villagers went running to the door of appellant Arun Singh when they heard noise. This witness, further, admitted that while he was going to the door of appellant Arun Singh, he had not seen farsa and lathi near the baithka of co-accused Parbhat Singh. This witness also admitted that neither any farsa nor any lathi was recovered from the baithka of co-accused Parbhat Singh in his presence. 27. Pw-6 Baliram Singh claimed that at the time of alleged occurrence he was at his home and having heard the noise he went running to the door of appellant Arun Singh where he saw that appellant Arun Singh assaulting the deceased Gauri Singh by means of farsa whereas acquitted accused Parbhat Singh was assaulting deceased Gauri by means of bhala and acquitted accused Satish Singh was assaulting him by the butt of nalkatua. The other appellants were assaulting the deceased by means of lathi and bricks. This witness claimed that deceased had made complaint against the appellant Birendra Singh and deceased used to raise his voice against the illegal act of co-accused Parbhat Singh and that was the reason the alleged occurrence took place. The statement of this witness goes to show that he had seen only the occurrence which had taken place in front of house of appellant Arun Singh. This witness admitted that he had heard that deceased had made complain against the appellant Birendra Singh and similarly, he had heard that deceased used to raise his voice against the co-accused Parbhat Singh. This witness also admitted in his deposition that neither he nor any other persons dared to save the deceased out of fear. This witness also stated that he had named Birendra Singh as assailant before the police. 28. This witness also admitted in his deposition that neither he nor any other persons dared to save the deceased out of fear. This witness also stated that he had named Birendra Singh as assailant before the police. 28. Pw-7 Rama Shankar Singh claimed that one motorcycle bearing Registration No. BPK 8072 was recovered in his presence near a pond. This witness admitted that he had not made any statement before the police in course of investigation. This witness also admitted that there was enmity between the deceased and appellants. The statement of this witness goes to show that he had not seen the occurrence and he claimed only that one motorcycle having bloodstained was seized in his presence. 29. Pw-8 Ashok Singh is a tendered witness and he does not claim himself to be eye witness of the alleged occurrence. 30. Pw-10 Vijay Kumar Srivastava is a police officer. This witness claims that on 16.07.1993 he was posted at Nanpur police station as S.I. and recorded the statement of PW-9. This witness proved the ferdbeyan of PW-9 as Ext. 3. This witness also claimed that he took the charge of investigation and visited the place of occurrence. He claimed that first place of occurrence was in front of biathka of co-accused Parbhat Singh. He described the topography of places of occurrence at para 3 of his examination in chief. This witness claimed that he had found dried blood on pitch road but could not seize the aforesaid dried blood. This witness, further, stated that second place of occurrence was the door of appellant Arun Singh and the distance between first place of occurrence and second place of occurrence was about 250 yards. This witness found blood on the second place of occurrence. This witness, further, claimed that he had seized two lathies, two farsa from the first place of occurrence and out of them one farsa contained blood. This witness, further, claimed that he seized bloodstained earth from the second place of occurrence and prepared seizure list. This witness also claimed that he recovered one country made nalkatua and cartridge from the house of Parbhat Singh. He also claimed that he seized one Rajdoot motorcycle near the pond on the next day of the occurrence. He noticed bloodstained on the aforesaid motorcycle. This witness also claimed that he recovered one country made nalkatua and cartridge from the house of Parbhat Singh. He also claimed that he seized one Rajdoot motorcycle near the pond on the next day of the occurrence. He noticed bloodstained on the aforesaid motorcycle. He admitted in his cross examination that he did not find any mark of tyre of the motorcycle over the first place of occurrence. He also admitted that he did not find any wad, empty cartridge, pillet etc. nor any rope tied with electric pole over the first place of occurrence. He also admitted that he did not find any trail of blood between first place of occurrence and second place of occurrence. He also admitted that he had seized lathi, farsa from the west side of pitch road. He also admitted that he did not seize any lathi or farsa from the second place of occurrence. He also admitted that he did not send lathi and farsa for chemical examination. This witness admitted that he did not find any bhala over the place of occurrence. This witness admitted that PW-1 had made statement before him that his father raised alarm which attracted PW-3, PW6 and others. This witness also highlighted several contradictions and improvements in the statements of PW-1. This witness also admitted that PW-6 had not named appellant Birendra Singh as assailant before him. 31. Pw-11 Umashankar Singh is a witness on inquest report. This witness happens to be son of PW-9 (informant). Admittedly, this witness is not an eye witness of the alleged occurrence. 32. Pw-12 Bijli Prasad is a formal witness. He has proved the signature of deceased Gauri Singh on a petition. 33. Similarly, PW-13 Janardan Choudhary is an Executive Magistrate who claimed that he had enquired against the P.D.S. dealer Birendra Prasad Singh on the basis of complaint made by the deceased Gauri Singh. 34. Dw-1 Chandrakant Jha claims himself to be astrologer and he claimed that according to his Panchang, at the time of alleged occurrence, there was complete dark. 35. Dw-2 and DW-3 are formal witness who have proved signatures and writings of Birendra Prasad Singh and Ramdeo Kunwar respectively. 36. 34. Dw-1 Chandrakant Jha claims himself to be astrologer and he claimed that according to his Panchang, at the time of alleged occurrence, there was complete dark. 35. Dw-2 and DW-3 are formal witness who have proved signatures and writings of Birendra Prasad Singh and Ramdeo Kunwar respectively. 36. After evaluating the evidences available on the record, it appears that the deceased was assaulted by the appellants and others at two different places and at the time of occurrence the appellants and others were armed with lathi, farsa, nalkatua etc. but admittedly, no firearm was used in the alleged crime. The prosecution witnesses also claim that co-accused Parbhat Singh assaulted the deceased by means of bhala but admittedly, no bhala was seized nor any penetrating wound was found on the person of the deceased and moreover, co-accused Parbhat Singh has been acquitted by the learned trial court and, therefore, it is obvious that above stated claim of the prosecution has been disbelieved by the learned trial court. Furthermore, the learned trial court also acquitted the accused Satish Singh against whom the witnesses claimed that he was carrying nalkatua and assaulted the deceased with butt of nalkatua. Admittedly, no bricks and stones were found by the PW-10 when he inspected both the places of occurrence and, therefore, use of bricks and stones in the alleged crime also appears to be doubtful. In the aforesaid circumstance, it appears that only farsa and lathi had been used in committing the alleged crime and the aforesaid view is corroborated by the injuries found on the person of the deceased. As we have already stated that, altogether, seven visible injuries were found on the person of the deceased and out of them, three injuries were caused by sharp cut weapon but all the aforesaid three injuries were simple in nature and only one injury which was found on ring and little fingers of left hand of the deceased was grievous in nature said to be caused by hard and blunt substance. The aforesaid grievous injury was not on vital part of the body. The PW-2 has clearly admitted that much force was not used in causing injury to the deceased by the sharp cut weapon as no bone cut injury was found on the person of the deceased. The aforesaid grievous injury was not on vital part of the body. The PW-2 has clearly admitted that much force was not used in causing injury to the deceased by the sharp cut weapon as no bone cut injury was found on the person of the deceased. Furthermore, the PW-2 also admitted that any single injury of the deceased was not sufficient to cause death of the deceased in ordinary course of nature. According to PW-2, the injuries of the deceased became fatal due to their cumulative effect. In the aforesaid circumstance, we have no hesitation to hold that the appellants had no intention to kill the deceased nor they had knowledge that the injuries caused by them might cause death of the deceased and, therefore, in our view, the appellants had only intention to cause hurt to the deceased and, therefore, they could have been convicted for the offences punishable under Section 324 of the I.P.C. in place of Sections 302 and 302/34 of the I.P.C. 37. The prosecution has successfully proved that appellant Arun Kumar Singh assaulted the deceased by means of farsa as he was carrying farsa at the time of alleged occurrence and, therefore, in our view, the learned trial court rightly convicted the appellant Arun Kumar Singh for the offence punishable under Section 148 of the I.P.C. 38. No doubt, on same set of evidence some accused were acquitted by the trial court but the principle of Falsus in Uno, Falsus Omnibus is not applicable in our criminal judicial system and, therefore, even if some accused have been acquitted on the same set of evidence, then also, the appellants can not get the benefit of that acquittal. 39. The appellant Arun Kumar Singh has already remained in jail custody for more than one year during pendency of the trial and similarly, other appellants also remained in jail custody for a considerable period during course of the trial. The alleged occurrence took place in the year 1993 and the appellant Arun Kumar Singh was aged about 42 years at the time of pronouncement of impugned judgment and now he has become more than 65 years old. Therefore, in the aforesaid circumstance, in our view, it would be proper to sentence the appellants to the period already undergone by them in course of trial. 40. Therefore, in the aforesaid circumstance, in our view, it would be proper to sentence the appellants to the period already undergone by them in course of trial. 40. On the basis of aforesaid discussions, the impugned judgment of conviction and order of sentence are modified to this extent that in place of Section 302/34 of the I.P.C., the appellants are convicted for the offence punishable under Section 324 of the I.P.C. and the conviction of appellant Arun Kumar Singh for the offence punishable under Section 148 of the I.P.C. is confirmed and accordingly, all the appellants are sentenced to the period already undergone by them in course of trial. 41. Hence, these criminal appeals are partly allowed with the aforesaid modification and accordingly, these criminal appeals stand disposed of.