JUDGMENT : Anil Kumar Choudhary, J. Perusal of the record reveals that the appellant no.1 – Rabi Manjhi died on 15.10.2017 as has been mentioned in the impugned order dated 24.09.2018, passed by the learned Additional Sessions Judge –I-cum-Special Judge, Dumka, in S.C. Case No. 223/95, hence this appeal abates so far as the appellant no.1 – Rabi Manjhi is concerned. 2. Registry is directed to delete the name of the appellant no.1- Rabi Manjhi from the cause title of the appeal memo. 3. Rest of the seven appellants i.e. appellant nos. 2 to 8 namely Jitu Manjhi, Arvind Manjhi, Sarju Manjhi, Karu Manjhi, Dhukh Haran Manjhi, Bhago Rana @ Bhagwat Rana and Ramlakhan Manjhi @ Lakhan Manjhi respectively have surrendered in the learned court below. 4. Heard the parties. 5. This appeal is directed against the Judgment of conviction and Order of sentence dated 28.01.2006 passed by the learned 1st Additional Sessions Judge, Dumka, in Sessions Case No.223 of 1995whereby and where under, the appellants have been held guilty for the offence punishable under Section 323 read with Section 149 of the Indian Penal Code and have been sentenced to undergo R.I. for one year. 6. The brief facts of the case as unfolded in the fardbeyan of the informant in brief is that on 17.04.1991 at about 10:30 A.M. while the informant-Pramod Manjhi along with his father Makru Manjhi and his cousin brother-in-law-Suresh Mandal were sitting in outer portion of the house, the accused-appellant persons and others came being variously armed and surrounded the informant-Pramod Manjhi, Makru Manjhi (who died in the occurrence) and Suresh Mandal. Rabi Manjhi (who died during pendency of this appeal) exhorted others to kill the informant and his associates upon which the accused-appellant persons and others assaulted the informant and his father Makru Manjhi. The informant raised alarm upon which the mother of the informant, his uncle Sadhu Manjhi and cousin sister came to save the informant and others and the uncle of the informant namely Sadhu Manjhi was also assaulted. The motive between the alleged occurrence is that there was bad blood between the parties prior to the alleged date of occurrence because of land dispute between the accused Rabi Manjhi (deceased appellant no.1) and Makru Manjhi who died in the occurrence, who were brothers. The motive between the alleged occurrence is that there was bad blood between the parties prior to the alleged date of occurrence because of land dispute between the accused Rabi Manjhi (deceased appellant no.1) and Makru Manjhi who died in the occurrence, who were brothers. On the basis of the fardbeyan of the informant, police instituted Saraiyahat (Hansdiha) P.S. Case No. 43 of 1991 and took up investigation of the case. After completion of the investigation, police submitted police report. 7. Upon commitment of the case to the Court of Session, charges for the offences punishable under Section 302/149, 307/149, 337 and 148 of the Indian Penal Code were framed against the accused-appellant persons and other accused persons of the case also. Upon the appellants and the co-accused persons pleading not guilty to the charges, they were put to trial. 8. In support of its case, the prosecution has altogether examined6 witnesses while the doctor and the Investigating Officer have been examined as court witness no. 1 & 2 respectively. Out of the 6 witnesses examined by the prosecution, P.W.1 – Sadhu Manjhi who was examined in court on 2nd day of May, 2003 deposed that the occurrence took place 12 years prior to his examination in court. He further stated that at 10:00 A.M. in the house of Makru, the deceased Makru, Pramod and Suresh were sitting. Pramod was ill. Rabi Manjhi (since deceased) along with 11 others including the accused-appellant persons came being variously armed. Rabi assaulted Pramod with tangi on his head. Saguni Manjhi assaulted on the head of Makru. Binod assaulted with farsa on the head of Makru. Shyamsunder also assaulted Makru. Makru Manjhi fell down and died. When the P.W.1 went there, Dukharan assaulted with tangi on his head. Bhago assaulted on the hand of the P.W.1 and Ramlakhan also assaulted P.W.1 with lathi. Jitu, Arvind, Sarju and Karu assaulted Sunaina Devi and Nuneshwari Devi with lathi. P.W.1 is having land dispute with Saguni. P.W.1 was treated in Bhagalpur. In his cross-examination, he has stated that Rabi is his agnate and the deceased Makru is the brother of Rabi. Both the deceased Makru and the deceased appellant no.1 – Rabi Manjhi were having landed property in the same Parcha. Police instituted a counter case also. He did not see the injury of the victims. The quarrel was regarding land of the P.W.1. Both the deceased Makru and the deceased appellant no.1 – Rabi Manjhi were having landed property in the same Parcha. Police instituted a counter case also. He did not see the injury of the victims. The quarrel was regarding land of the P.W.1. The occurrence of assault took place inside the house. Makru died in the house itself. Police took away the blood stained soil. Dukharan is working in Forest Department. 9. P.W.2 – Nuneshwari Devi has stated that the occurrence took place 12 years prior to her adducing evidence in court. On a Wednesday at 11:00 A.M. Pramod, Suresh and Makru were talking in the house of Makru. Pramod was ill. The appellant-accused persons along with others came. Rabi Manjhi assaulted Pramod with tangi on his head. Saguni Manjhi assaulted Makru Manjhi with a tangi on his head and Shyam Sunder assaulted with lathi. Binod also assaulted Makru. P.W.2 raised alarm. Sadhu Manjhi and his daughter came. Dukharan, Lakhan and Bhago assaulted Sadhu with lathi and tangi. Jitu, Arvind and Karu assaulted Sadhu Manjhi and the P.W.2. No one from the village came. In her cross-examination, she has stated that Sadhu Manjhi is her brother-in-law (Devar). The occurrence took place inside their house. Police seized blood and the clothes. The assault was made without any reason. After the occurrence, Pramod, Suresh Mandal and Jainath were also in jail. 10. P.W.3–Sunaina Devi has stated that the occurrence took place 12 years prior to her being examined in the court. At 10:30 A.M. she was at the door of her house. Rabi Manjhi assaulted Pramod on his head. Saguni assaulted Makru. Binod and Shyam Sunder also assaulted. Makru Manjhi died. Sadhu Manjhi was assaulted by Dukharan, Bhago Rana and Ramlakhan Manjhi. Karu and Saryu Manjhi assaulted the P.W.3. The occurrence took place in the bungalow of informant-Pramod Manjhi. Pramod, Makru Manjhi and the mother of Pramod were present in the bungalow. In her cross-examination, the P.W.3 has stated that Pramod was married 12-13 years before her deposing in court. Sadhu Manjhi is the father of P.W.3. He is the cousin brother of Makru. She was standing on the road at the time of the occurrence. The occurrence of assault took place inside the house. Police seized blood stained weapons. P.W.3 was assaulted with lathi. Makru was assaulted by Saguni Manjhi, Binod Manjhi and Shyam Sunder Manjhi. Sadhu Manjhi is the father of P.W.3. He is the cousin brother of Makru. She was standing on the road at the time of the occurrence. The occurrence of assault took place inside the house. Police seized blood stained weapons. P.W.3 was assaulted with lathi. Makru was assaulted by Saguni Manjhi, Binod Manjhi and Shyam Sunder Manjhi. The quarrel took place because of land dispute. The accused-appellant persons were not permitting the father of P.W.3 to cultivate the land and for that the quarrel took place. 11. P.W.4 – Bhairav Manjhi has stated that the occurrence took place on 17.04.1991 at 10:00 A.M. Makru Manjhi, Pramod Manjhi and Suresh Mandal were sitting in the verandah. In the meantime, the accused-appellant persons and others were called by Rabi Manjhi. The assailants were armed with gadasa, lathi, farsa, tangi, bricks and stones. Rabi Manjhi exhorted others to kill the victim. Rabi Manjhi assaulted on the head of Pramod Manjhi because of which he fell down. Saguni Manjhi assaulted Makru Manjhi on his head with tangi. Binod Manjhi assaulted Makru Manjhi with farsa. Shyam Sunder assaulted with lathi. On hearing the noise, Sadhu Mandal came running to save Makru. Dukharan assaulted Sadhu with farsa and Bhago assaulted Sadhu with tangi. Ramlakhan Manjhi assaulted with lathi and injured Sadhu. His right hand was fractured and there was injuryon his head also. When the mother of Pramod went there, she was assaulted by Karu Manjhi and Jitu Manjhi on her head. When the daughter of Sadhu, Sunaina (P.W.3) came to save Sadhu, Sarju and others assaulted the P.W.3. Makru died on the spot. Police seized the lathi. In his cross-examination, the P.W.4 has stated that he was not locked in the room. There is no relation between Sadhu Manjhi and Makru Manjhi. Sunaina Devi is the cousin (chacheri) sister of Pramod. Makru is the father of Pramod and Sadhu Manjhi is the father of Sunaina. The informant Pramod Manjhi is the nephew of the P.W.4. P.W.2 is the mother of Pramod. Suresh Mandal was present at the place of occurrence at the time of occurrence. Suresh Mandal was not assaulted. Suresh fled away at the time of assault. He was at the door of Pramod at the time assault. On being assaulted, Pramod raised alarm. P.W.4 went there on hearing the noise of Pramod. P.W.2 is the mother of Pramod. Suresh Mandal was present at the place of occurrence at the time of occurrence. Suresh Mandal was not assaulted. Suresh fled away at the time of assault. He was at the door of Pramod at the time assault. On being assaulted, Pramod raised alarm. P.W.4 went there on hearing the noise of Pramod. After assaulting Pramod, the accused persons came to verandah and assaulted Makru. Makru was assaulted by Saguni, Binod and Shyam Sunder. Makru fell down from the top. At the time of assault of Makru, Jainath Yadav, Sadhu Manjhi (P.W.1) and P.W.2 were also present. The verandah is made of soil. The verandah was stained with blood of Pramod and Makru. Blood was oozing out from the head of Sarju Manjhi. He sustained injury while running away from the house. The informant party and the assailants are agnates. There was land dispute between Sadhu Manjhi and Rabi Manjhi. The land for which quarrel took place is lying barren. 12. P.W.5–PramodManjhi is the informant of the case. He has stated that the occurrence took place on 17.04.1991 at 10:30 A.M. At that time, the informant-P.W.5, his father and Suresh Mandal were sitting in his house. P.W.5 was ill. Rabi Manjhi came with the accused-appellant persons and others. All of them were variously armed and surrounded P.W.5 and others. Rabi Manjhi exhorted to kill the P.W.5 and the persons present with him. Rabi assaulted on the head of the P.W.5 once with tangi(axe). Saguni assaulted on the head of the father of the P.W.5. Binod assaulted with farsa (battle axe). Shyamsunder assaulted with lathi. The father of P.W.5 died at the spot. On alarmbeing raised, the P.Ws. 1, 2, 3 and 4also came. They were also assaulted. Dukharan assaulted Sadhu with tangi. Sarju assaulted the mother of P.W.5 and P.W.3. P.W.3 was assaulted by Arvind, Karu and Jitu Manjhi. Police recorded the statement of P.W.5.On being read over the contents thereof the P.W.5 signed the F.I.R. and on being identified by him, the F.I.R. was marked Ext.1. In his cross-examination, P.W.5 has stated that Suresh Mandal, who was sitting behind the P.W.5 is the own brother-in-law (Bahnoi) of the P.W.3. Suresh Mandal is a resident of Mohra Village. For the same occurrence, Rabi Manjhi has instituted a counter case in which the P.W.5, his cousin brother, Suresh Mandal, Bhairav Manjhi and Jainath Manjhi etc. In his cross-examination, P.W.5 has stated that Suresh Mandal, who was sitting behind the P.W.5 is the own brother-in-law (Bahnoi) of the P.W.3. Suresh Mandal is a resident of Mohra Village. For the same occurrence, Rabi Manjhi has instituted a counter case in which the P.W.5, his cousin brother, Suresh Mandal, Bhairav Manjhi and Jainath Manjhi etc. are the accused. P.W.5 has stated everything to police also, before his deposing in court. P.W.5 was treated in Saraiyahat Hospital. 13. P.W.6 – Jainath Yadav is an independent witness. He has stated that the occurrence took place in the year 1991. He was in his house. There was exchange of hot words and assault. The quarrel was taking place in the field of Chaprasi Manjhi and Makdam Manjhi. In one side Makru Manjhi and others were there and the other side Rabi Manjhi and others were there. Makru Manjhi was murdered there. P.W.6 has not stated who assaulted whom. Sadhu also sustained injury. Pramod Manjhi was assaulted and sustained injury. Rabi Manjhi also sustained injury. There were 10 to 11 persons from the side of Rabi Manjhi. In his cross-examination, he has stated that the maternal house of Pramod is in Mohra village and the people on the side of Pramod were of Mohra village. People of both sides were injured. Makru died in the field of Chaprasi Manjhi. The accused persons are the brothers of Chaprasi Manjhi. 14. Dr. C.P. Sinha is the court witness no.1. He conducted the postmortem examination on the dead body of Makru Manjhi and found the following ante mortem injuries:- I. Lacerated wound 2” x ½” x bone deep over the middle of scalp. On dissection there was fracture on both left and right parietal bone in the middle. On further dissection connecting brain and meninges found lacerated and blood clots found in the cranium. II. The second injury is defused swelling over the left upper eye lid. On being proved by him, the postmortem report was marked Ext.A. In his cross-examination, he has stated that the injury no.1 may be caused if the deceased falls on the stiff stone and the injury no.2 may be caused on the effect of injury no.1. 15. Binod Kumar Gupta is the Investigating officer of the case. He has stated that on 17.04.1991 he was the officer-in-charge of Hansdiha Police Station. 15. Binod Kumar Gupta is the Investigating officer of the case. He has stated that on 17.04.1991 he was the officer-in-charge of Hansdiha Police Station. On that day, he took up investigation of the case and on being proved by him the formal F.I.R. has been marked Ext.B. He recorded the fardbeyan of the informant – Pramod Manjhi. On being proved by him, the fardbeyan was marked Ext. C. He also prepared the inquest report of the deceased which was also signed by the P.W.6. The inquest report was marked Ext.D. The dead body challan was marked Ext.E. In his cross-examination, the court witness no.2 has stated that he recorded the fardbeyan in the village Basberwa on receiving information. The boundary of the place of occurrence is not mentioned in the case diary. Though during the investigation, he seized some articles but the same were not before him in the court. No evidence was adduced on behalf of the accused-appellant persons in their defence. 16. After closure of the evidence of the prosecution, the statement under Section 313 Cr.P.C. of the accused-appellant persons were recorded wherein the accused-appellant persons denied the allegations against them. 17. Learned court below after taking into consideration the evidences, both, oral and documentary convicted and sentenced the accused-appellant persons as already indicated above. 18. Mr. Rajeeva Sharma, learned Senior Advocate for the appellants submits that the learned court below has failed to appreciate the evidences in record in its proper perspective and failed to take note of the fact that the prosecution has suppressed the fact of the case and has cooked up a story to suit their purpose. Drawing attention of the Court to the deposition of the P.W.6., it is submitted by the learned Senior Advocate that the P.W.6 has categorically stated that the place of occurrence is the field of Chaprasi Manjhi who is the brother of the accused-appellant persons and the persons who were accompanying the informant-Pramod Manjhi were from the village of his maternal grandfather namely village - Mohraand the fact that the prosecution choose not to examine the Investigating Officer as a witness of the prosecution goes to show the falsity of the case of the prosecution. The Investigating Officer who was cross-examined as a court witness, did not voluntarily describe the place of occurrence as is almost customary for an Investigating Officer and when in his cross-examination he was asked about the place of occurrence, he stated that the same has not been mentioned in the case diary goes to show that the truth has been suppressed from the trial court and the informant deliberately shifted the place of occurrence from the land of Chaprasi Manjhi to that of the house of the informant, in order to show that they are not the aggressors. It is further submitted that there is an admitted land dispute between the parties and it was admitted by the witness of the informant that in the case instituted for the selfsame occurrence, the informant and others were also arrested and were put behind the bars and the fact that the P.W.6 has categorically stated that the deceased accused-appellant no.1 also sustained injury speaks about the falsity of the prosecution case. It is also submitted that there is enmity between the two families and the alleged eye-witnesses were admittedly interested witnesses and apart from postmortem report, there is no evidence regarding any injury having been sustained by any of the alleged injured persons and there is no evidence in the record that any of the surviving accused persons have assaulted Makru Manjhi. Hence, it is submitted that this is a fit case where the appellant-accused persons be acquitted by at least giving them the benefit of doubt. 19. Mr. Shekhar Sinha the learned Addl. P.P. on the other hand defended the impugned judgment of conviction and order of sentence and submitted that the P.W.5 has categorically stated about each of the accused-appellant persons forming an unlawful assembly being variously armed having assaulted one or the other injured persons in the occurrence and the same is sufficient to establish the charge for the offence punishable under Sections 323/149 of the Indian Penal Code against the accused-appellant persons beyond all reasonable doubt and that the learned court below having rightly convicted and sentenced the accused-appellant persons, this appeal being without any merit be dismissed. 20. Having heard the submissions made the Bar and after carefully going through the evidence in the record, I find that all the five witnesses related to the deceased being P.Ws. 20. Having heard the submissions made the Bar and after carefully going through the evidence in the record, I find that all the five witnesses related to the deceased being P.Ws. 1 to 5, have categorically stated that the occurrence took place in the bungalow of the informant. P.W.6 the sole independent witness of the case has categorically stated that the occurrence took place in the field of Chaprasi Manjhi who is the brother of the accused-appellant persons. The P.W.6 has not been declared hostile nor there is any material in record to disbelieve his testimony, his being an independent witness. The prosecution for the reason best known to them has chosen not to examine Investigating Officer as a prosecution witness. When the Investigating Officer was examined as a court witness, as rightly submitted by the learned Senior Advocate for the appellants, he did not whisper a word about the place of occurrence. When in his cross-examination, he was asked about the boundaries of the place of occurrence, he could not say the boundaries of the place of occurrence and instead replied that the same has not been mentioned in the case dairy. So under such circumstances, I find force in the submission of the learned Senior Advocate for the accused-appellant persons that in the facts of the case, the prosecution suppressing the place of occurrence cannot be ruled out and certainly a doubt is created about the real place of occurrence. Though the prosecution witness P.Ws.1 to 5 have stated that the police seized the blood stained soil as well as blood stained weapons but neither the seizure list relating to the same nor the seized material objects were placed before the trial court without any plausible reason. It is the admitted case of the prosecution witnesses that for the selfsame occurrence, a counter case was also been instituted wherein, the informant and others were in custody for certain time. There is nothing to disbelieve the testimony of the P.W.6 that the members of the informant party were from the village of the maternal grandfather of the informant, and the P.Ws. 1 to 5 were silent about their presence, which certainly amounts to suppression of fact. There is nothing to disbelieve the testimony of the P.W.6 that the members of the informant party were from the village of the maternal grandfather of the informant, and the P.Ws. 1 to 5 were silent about their presence, which certainly amounts to suppression of fact. Under such circumstances, this Court is of the considered view that this is a fit case where a doubt is created regarding the case put forth by the prosecution hence this is a fit case where the accused-appellant persons be acquitted by giving them the benefit of doubt. Accordingly the accused-appellant persons namely Jitu Manjhi, Arvind Manjhi, Sarju Manjhi, Karu Manjhi, Dhukh Haran Manjhi, Bhago Rana @ Bhagwat Rana and Ramlakhan Manjhi @ Lakhan Manjhi are acquitted of the offence punishable under Sections 323/149 of the Indian Penal Code, by giving them the benefit of doubt. 21. Accordingly, the impugned judgment of conviction and Order of sentence dated 28.01.2006 passed by the learned 1st Additional Sessions Judge, Dumka, in Sessions Case No.223 of 1995 being not sustainable in law is set aside so far as it relates to the conviction and sentence of the above named accused-appellant persons only. 22. Perusal of the record reveals that the accused-appellant persons are in custody. In view of their acquittal, they are directed to be released from custody forthwith unless their detention is required in connection with any other case. 23. Let a copy of this Judgment be sent to the learned court below forthwith. 24. This appeal is allowed to the aforesaid extent only.