JUDGMENT : H.C. MISHRA, J. Heard learned counsel for the appellants and the learned counsel for the State. 2. At the very outset it may be stated that out of three appellants, one appellant Bhothwa Devi @ Bhotho Devi died during the pendency of this appeal, and her name was deleted from the array of the appellants, by order dated 01.02.2018. 3. The surviving appellants are aggrieved by the impugned Judgement of conviction dated 03.03.2009 and Order of sentence dated 04.03.2009, passed by the learned 3rd Additional Sessions Judge, Deoghar, in S.C. No. 321 of 2006, whereby, the appellants were convicted and sentenced for the offences under Sections 302/149 and 307/149 of the Indian Penal Code. Upon hearing on the point of sentence, the appellants have been sentenced to undergo R.I. for life for the offence under Sections 302/149 of the Indian Penal Code, and to undergo R.I. for ten years for the offence under Sections 307/149 of the Indian Penal Code, and both the sentences were directed to run concurrently. 4. The prosecution case was instituted on the fardbeyan of Chundri Devi, the wife of the deceased Bhola Yadav, recorded on 21.6.2006 at Sadar Hospital, Deoghar, wherein she has stated that her husband were two brothers and his younger brother is the accused Suryu Mahto. There was a partition between them, but that was not acceptable to Suryu and he used to abuse them in filthy languages for that. On the same day at about 8:00 A.M., her husband was sowing paddy seeds in the field of his share. In the meantime Suryu Yadav, his sons Khublal Yadav, Gopal Yadav and Nepal Yadav and his wife Bhothwa Devi came armed with a lathi and they started assaulting her husband. Her husband fled away from the field and the informant started shouting, whereupon Gopal Yadav assaulted her by lathi on her head causing bleeding injury and thereafter they chased her husband and near a dates tree, they apprehended her husband and started assaulting him. In the course of assault Suryu Yadav and Khublal Yadav also pierced the lathi in his mouth and in his anus, due to which he became unconscious. Upon the alarm raised by the informant the nearby people came to the place of occurrence. They were being taken to hospital, but her husband died in the way to hospital. In the course of assault Suryu Yadav and Khublal Yadav also pierced the lathi in his mouth and in his anus, due to which he became unconscious. Upon the alarm raised by the informant the nearby people came to the place of occurrence. They were being taken to hospital, but her husband died in the way to hospital. She was also having injuries on her head and body. Claiming that Suryu Yadav, his wife and sons had assaulted her husband and also pierced the lathi in his mouth and anus due to which he died, the fardbeyan was given by the informant, on the basis of which Mohanpur P.S. Case No. 104 of 2006, corresponding to G.R. No. 504 of 2006 was instituted for the offences under Sections 147, 148, 149, 341, 323, 325, 307 and 302 of the Indian Penal Code, and investigation was taken up. After investigation the police submitted the charge-sheet in the case. 5. From the record it appears that two sons of Suryu Yadav were minors at the time of occurrence and it has come in the evidence of P.W.-6 Gita Devi, the daughter-in-law of the informant, that Nepal and Gopal were minor children. The impugned judgement also shows that prior to commitment, the case of Gopal Yadav had been sent to the Juvenile Justice Board for enquiry. 6. After commitment of the case to the Court of Session, charge was framed for the offences under Sections 302/149 and 307/149 of the Indian Penal Code, against three accused, namely, Suryu Yadav, Khublal Yadav and Bhothwa Devi, stating that they had committed the offence alongwith other two accused, to which the accused persons pleaded not guilty and claimed to be tried. In course of trial the prosecution has examined 10 witnesses, including the Investigating Officer and the Doctor, who had conducted the post-mortem examination on the dead body of the deceased. Out of the witnesses examined, one witness P.W.2 Fakir Chand Yadav has turned hostile and has not supported the prosecution case at all. 7. P.W.-9 Chundri Devi is the informant of the case, and the wife of the deceased, who has stated that the occurrence had taken place about 1½ years ago, at about 8:00 A.M. in the morning. Out of the witnesses examined, one witness P.W.2 Fakir Chand Yadav has turned hostile and has not supported the prosecution case at all. 7. P.W.-9 Chundri Devi is the informant of the case, and the wife of the deceased, who has stated that the occurrence had taken place about 1½ years ago, at about 8:00 A.M. in the morning. Her husband Bhola Yadav had gone to the filed for sowing paddy seeds and she had also gone there, whereupon Suryu Yadav, Khublal Yadav, Gopal Yadav, Nepal Yadav and Bhothwa came there armed with Lathi. They started assaulting her husband, whereupon her husband fled away from the field and she started shouting. Gopal Yadav assaulted her by bamboo danda causing bleeding injury on her head and they caught her husband near the dates tree and started assaulting him by lathi. Suryu Yadav and Khublal Yadav also pierced lathi in his mouth and in his anus due to which her husband became unconscious. Upon the alarm raised by her, several persons came there and the accused persons fled away. Her husband was being brought to the hospital, but he died in the way. She has stated that there was a partition between her husband and Suryu, but it was not acceptable to Suryu. She had given her statement before the police at Deoghar hospital upon which she had put her thumb impression. She had identified the accused persons in the Court. In her cross-examination she has stated that the accused Suryu is her own Dewar, Bhothwa Devi is her own Gotni and the other accused persons are their sons. There was partition during the lifetime of her father-in-law. She has stated that there is no dates tree near her agricultural field, and it takes about less than ½ hour to reach her agricultural field from her house. Her husband had gone to the agricultural field at about 8:00 A.M. and she had followed him carrying the paddy seeds. She had stated that Gopal had assaulted her by lathi causing injury on her head, but she was conscious and she did not flee away, rather she started shouting. Her husband fled away from the agricultural field to a distance of about 600 feet from the field. On the alarm raised by her, Kamal Singh, her daughter-in-law, her daughter and the other villagers had reached the place of occurrence. Her husband fled away from the agricultural field to a distance of about 600 feet from the field. On the alarm raised by her, Kamal Singh, her daughter-in-law, her daughter and the other villagers had reached the place of occurrence. Her husband died in the way to hospital and she does not remember as to when she had reached the hospital. Her statement was recorded at the hospital by the police, but she did not read it. She has stated that at the place where her husband was assaulted there was a small dates tree. She has stated that they had sowed paddy in the agricultural field, but upon harvest the paddy was given to the accused by the police. She has denied the suggestion that her husband had died due to fall. She has also admitted in her cross-examination that the accused Suryu is lame by birth. She has denied the suggestion of giving the false evidence. 8. P.W.-1 Nunki Devi is the daughter of the deceased. She is a hearsay witness. She has stated that the occurrence had taken place about 10 months ago in the morning hours when her father was killed. He was killed by Khublal, Nepal, Surju and Bhothwa, and Khublal had pierced the lathi in the mouth and anus of her father. In her cross-examination she has stated that her father had died before she reached the place of occurrence. She has also stated that Suryu moves with the help of lathi and he cannot run, as both his legs are polio stricken. She has denied the suggestion not to have given the statement before the police that Khublal had inserted lathi in the mouth and anus of her father. She has denied the suggestion of giving the false evidence. 9. P.W.-5 is Lokan Mahto who has only stated that he had seen the deceased Bhola Yadav in injured condition and had seen Khublal and Gopal fleeing away at the distance of about one kilometer. He has not stated anything about the other accused persons, or about the occurrence. 10. P.W.-3 Mahadeo Singh is another hearsay witness who had reached the place of occurrence upon hearing the noise, where he saw Bhola fallen down with bleeding injuries. He was informed by the informant that the accused persons had assaulted the deceased. He has not stated anything about the other accused persons, or about the occurrence. 10. P.W.-3 Mahadeo Singh is another hearsay witness who had reached the place of occurrence upon hearing the noise, where he saw Bhola fallen down with bleeding injuries. He was informed by the informant that the accused persons had assaulted the deceased. In his cross-examination this witness has stated that Bhola asked for water but when he gave him the water, it did not go inside. 11. P.W.-6 Gita Devi is the daughter-in-law of the deceased. She has stated that upon hearing the noise she went near her father-in-law and saw that Surju Yadav who is the younger brother of her father-in-law and Khublal Yadav assaulted her father-in-law by lathi and Bhothwa Devi also assaulted him. Gopal Yadav also assaulted him by Tangi on leg and Nepal assaulted him by Tangi on his head. Her father-in-law died. She had identified the accused persons. In her cross-examination she has stated that her husband resides at Kolkata. She has also stated that one leg of Surju Mahto is polio stricken and he cannot move without the help of lathi. She has admitted in her cross-examination that at the time of occurrence she was working in her house and she came running to the place of occurrence, covering the distance of about 4 Kms, where she saw that Mahadeo Singh and Kamal Singh were lifting her father-in-law and Mahadeo stated that her father-in-law was dead. She has stated that her father-in-law was brought to the hospital and her statement was also recorded at the hospital by the police. She has stated that Nepal and Gopal are minor children and the entire family of the accused was in jail and their land remained uncultivated. She has denied the suggestion that for grabbing the land of Surju, his entire family had been falsely implicated in the case. 12. P.W.-8 Mira Devi @ Nira Devi is the other daughter-in-law of the deceased. She has stated that the occurrence had taken place about one year five months ago. Her father-in-law was working in the field. When she reached the field upon hearing the noise, she saw her father-in-law in injured condition. 12. P.W.-8 Mira Devi @ Nira Devi is the other daughter-in-law of the deceased. She has stated that the occurrence had taken place about one year five months ago. Her father-in-law was working in the field. When she reached the field upon hearing the noise, she saw her father-in-law in injured condition. Surju Yadav, Khublal Yadav, Bhothwa Devi, Gopal Yadav and Nepal Yadav were present there armed with lathi, and she also found her mother-in-law injured, who informed her that the aforesaid persons had assaulted her father-in-law. Her father-in-law died in the way while being taken to hospital. She has identified the accused persons in the Court. In her cross-examination, she has stated that there was a small dates tree where her father-in-law had fallen down. She has stated that the accused persons are her relatives and Surju moves with the help of lathi, as his one leg is defective. She has also denied the suggestion of given the false evidence. 13. P.W.-7 Kamal Prasad Singh has supported the prosecution case only in part. He has stated that the occurrence had taken place on 21.06.2006 at about 8:00 A.M. He was washing his face in the river when he heard the noise and he came to the agricultural field where he saw that Surju Yadav, Nepal Yadav, Gopal Yadav and Bodhi Yadav were assaulting Bhola Yadav by lathi. He tried to prevent them, but they did not hear him. He has stated that Bodhi Yadav is also known as Khublal Yadav and he pierced lathi in the anus of Bhola Yadav. He has stated that he had given his statement to the police, but he had not named Bhothwa Devi in his statement. At this stage this witness was declared hostile and was cross-examined by the prosecution, in which he has denied the suggestion that Bhothwa was also assaulting the deceased by lathi and Surju Yadav had inserted lathi in the mouth of the deceased. He has denied the suggestion that in connivance with Bhothwa Devi he had not named her and had concealed some portion of the allegation against Surju. In his cross-examination by the defence this witness has stated that Surju was a handicapped person and he could not move without any help. He has also stated that there was a dates tree near the place of occurrence. In his cross-examination by the defence this witness has stated that Surju was a handicapped person and he could not move without any help. He has also stated that there was a dates tree near the place of occurrence. He has denied the suggestion not to have stated before the police that Bodhi Yadav had inserted the lathi in the anus of the deceased. He has denied the suggestion of giving the false evidence. 14. P.W.-4 is Dr. Binod Kumar, who had conducted the post-mortem examination on the dead body of the deceased and had also examined the injured informant. He has stated that on 22.06.2006 he had conducted the post-mortem examination on the dead body of Bhola Mahto and had found the following ante-mortem injuries:- External : (i) Fracture of occipital region of scull with haematoma at different level of brain. (ii) Fracture of left hip joint with wound over left injuinal region. (iii) Multiple lacerated wound situated over right leg with swelling. (iv) Multiple lacerated wound of irregular dimension over left leg. (v) Multiple lacerated wound over forehead and different places of skull. (vi) Lacerated wound around anus splitting the anal canal. Internal Examination : Fracture of occipital bone of scull. Brain meninges congested at occipital area and other area of brain. Brain tissues - pale but haematoma of different level at occipital area. Chest - wall of the chest-normal, plura-pale, airway-normal, both lungs-pale, pericardium-pale, all chambers of heart-empty. Abdomen - wall-normal, peritoneum-pale, oesophagus-normal, stomach mucusa-pale and contained 150 c.c. of digestive juice. Intestinal wall-lustureless, mucusa-pale and it contains gas and feacal matters. Liver, spleen, both kidneys-all pale. Urinary bladder contained 100 c.c. of urine. External genitalia-normal. 15. He has stated that the cause of death was due to shock and hemorrhage following severe physical violence and head injury and the ante-mortem injuries were sufficient to cause death in the ordinary course of nature. He has identified the post-mortem report to be in his pen and signature, which was marked Exhibit-1. 16. This witness has again stated that on 21.06.2006 he had examined Chundri Devi and had found the following injuries on her person:- (i) Incised wound 4 cm × 1.5cm × Scalp deep situated over frontal area of skull with bleeding. 17. The above injury was simple in nature caused by sharp cutting weapon. X-ray advised but not produced before him. This witness has again stated that on 21.06.2006 he had examined Chundri Devi and had found the following injuries on her person:- (i) Incised wound 4 cm × 1.5cm × Scalp deep situated over frontal area of skull with bleeding. 17. The above injury was simple in nature caused by sharp cutting weapon. X-ray advised but not produced before him. He has identified the injury report to be in his pen and signature which was marked Exhibit-2. 18. In his cross-examination this witness has stated that he had not found any injury inside the mouth of the deceased and that the injury found on the person of Chundri could not be possible by lathi. 19. P.W.10 Shiv Kumar Pathak is the Investigating Officer of the case. This witness has stated that on 21.06.2006 he was posted as Sub-Inspector in Mohanpur Police Station and on that date he had recorded the fardbeyan of Chundri Devi which was read over to her and she put her thumb impression. He has proved the fardbeyan which was marked Exhibit-3. He also prepared the inquest report of the dead body of the deceased which he has proved and the same was marked Exhibit-4. He has also proved the endorsement on the fardbeyan and the formal F.I.R. and the same was marked Exhibit-5. He proceeded to the place of occurrence and he has given the details of two places of the occurrence, which were at a distance of about 100 yards. The second place of occurrence was near a rivulet and a dates tree, in the field of Mahadeo Singh. He had recorded the statements of the witnesses and after completing the investigation had submitted the charge-sheet in the case. He has also stated that the witness Kamal Prasad Singh had given the statement before him that Bhothwa Devi had also assaulted the deceased and Surju had pierced the lathi in the mouth of the deceased. This witness was put to a lengthy cross-examination, but there is nothing of much importance. No contradiction was taken from him about any statement of the witnesses supporting the prosecution case. 20. The statements of the accused persons were recorded under section 313 of the Cr.P.C., wherein they have denied the evidence against them. No evidence was adduced by the defence. 21. No contradiction was taken from him about any statement of the witnesses supporting the prosecution case. 20. The statements of the accused persons were recorded under section 313 of the Cr.P.C., wherein they have denied the evidence against them. No evidence was adduced by the defence. 21. Learned counsel for the appellant has submitted that the impugned Judgement of conviction and Order of sentence passed by the Trial Court cannot be sustained in the eyes of law, as the prosecution has failed to bring home the charges against the accused persons beyond all reasonable doubts. Learned counsel also submitted that it has come in the evidence of the witnesses that the accused Surju Yadav was polio stricken and he was not in a position to move without the help of lathi, as such the evidence of the witnesses of his taking part in the occurrence and his fleeing away, is not believable. Learned counsel also submitted that though there is allegation that Chundri Devi was assaulted by lathi, but no injury caused by lathi was found on her, rather the injury found on her head was incised wound and P.W.-4 Dr. Binod Kumar has clearly stated that the said injury could not be caused by lathi. It is further submitted that there is no allegation against these appellants to have assaulted Chundri Devi, which assault is specific against Gopal Yadav, who was a minor and his case was sent to Juvenile Justice Board. It is further submitted by learned counsel for the appellants that though P.W.-6 Gita Devi has tried to become the eye witness to the occurrence, but she is not the eye witness to the occurrence and she has clearly admitted in her cross-examination that at the time of occurrence she was working in her house and she came running to the place of occurrence where she found Mahadeo Singh and Kamal Singh lifting her father-in-law who had died. Learned counsel accordingly, submitted that the witnesses have not come out with clean hands and the false implication of the accused persons due to the previous enmity, which is admitted in this case, cannot be ruled out. It is submitted that in the facts of this case, the appellants ought to have been given the benefits of doubt. 22. Learned counsel accordingly, submitted that the witnesses have not come out with clean hands and the false implication of the accused persons due to the previous enmity, which is admitted in this case, cannot be ruled out. It is submitted that in the facts of this case, the appellants ought to have been given the benefits of doubt. 22. Learned counsel for the State on the other hand, has opposed the prayer and has submitted that prosecution witnesses have fully supported the prosecution case, particularly, P.W.-9 Chundri Devi, the informant and the eye witness to the occurrence, who was also injured in the occurrence. The other witnesses have also supported the prosecution case. The oral evidence of these witnesses is fully corroborated by the medical evidence of P.W.-4 Dr. Binod Kumar and the post-mortem report and the injury report proved by him as Exhibit-1 and 2 respectively. Learned counsel for the State accordingly, submitted that there is no illegality in the impugned Judgement of conviction and Order of sentence. 23. Having heard learned counsels for both sides and upon going through the record, we find that enmity is admitted between both the parties due to land dispute between them and both the parties are close relatives. Though the informant P.W.-9 Chundri Devi has stated both in her fardbeyan and in her evidence that on the date of occurrence they were sowing paddy in their own land, but the fact remains that she has also stated that the partition was not acceptable to the accused. She has also admitted in her cross-examination that though they had sowed paddy in the land, but by the intervention of the police the crop was handed over to the accused side. This clearly makes the case, that the prosecution side was sowing paddy in their own share, very doubtful. 24. We also find from the record that almost all the witnesses have stated that one leg of accused Surju Yadav was polio stricken and he was not in a position to move freely without the help of lathi. Even the informant P.W.-9 Chundri Devi has admitted in her cross-examination that the accused Suryu is lame by birth. This fact is also admitted in cross-examination by P.W.-6 Gita Devi and P.W.-8 Mira Devi @ Nira Devi, the daughters-in-law of the deceased. Even the informant P.W.-9 Chundri Devi has admitted in her cross-examination that the accused Suryu is lame by birth. This fact is also admitted in cross-examination by P.W.-6 Gita Devi and P.W.-8 Mira Devi @ Nira Devi, the daughters-in-law of the deceased. Even P.W.-7 Kamal Prasad Singh, who has supported the case in part as an eye witness, has stated that Surju Yadav is a handicapped person and he could not move without any help. P.W.-1 Nunki Devi, the daughter of the deceased has also supported this fact and she has gone to the extent of saying that both the legs of Surju Yadav are polio stricken. In view of this evidence on record, it becomes difficult to believe that the accused Surju Yadav had taken active part in the offence, and after committing the offence he had fled away. 25. We further find from the record that though five accused persons are named in the F.I.R., including two minor sons of the accused Surju Yadav, namely Gopal Yadav and Nepal Yadav, and P.W.-9 Chundri Devi the informant of the case has also stated about both these accused persons taking part in the occurrence, but it appears that Nepal Yadav was not sent up for trial. The charge-sheet available in the LCR shows that he was not arrested and the investigation was kept pending against him. The impugned Judgement shows that the case of Gopal Yadav was sent to Juvenile Justice Board. Since Nepal Yadav was neither arrested nor there is any completion of investigation against him, and we have found it difficult to believe that the accused Surju Yadav had taken active part in the offence, it is doubtful at this stage whether the offence was committed by five accused persons. In that view of the matter, the offence being committed by the members of an unlawful assembly, in prosecution of its common object, becomes absolutely doubtful and the conviction of the accused persons with the aid of Section 149 of the Indian Penal Code is not at all safe in the present case. 26. In that view of the matter, the offence being committed by the members of an unlawful assembly, in prosecution of its common object, becomes absolutely doubtful and the conviction of the accused persons with the aid of Section 149 of the Indian Penal Code is not at all safe in the present case. 26. The evidence on record further clearly shows that there is specific allegation against the appellant Khublal Yadav to have assaulted the deceased Bhola Yadav by lathi alongwith the other co-accused persons and there is specific allegation against this accused to have assaulted the deceased by lathi and also to have pierced the lathi in the anus of the deceased. This fact is fully supported by P.W.-9 Chundri Devi whose presence at the place of occurrence cannot be doubted, as she was also injured in the occurrence. The allegation of piercing the lathi in the anus of the deceased is also fully corroborated by the medical evidence of P.W.-4 Dr. Binod Kumar and the post-mortem report proved by him as Exhibit-1, which clearly show that apart from the other injuries on the head, fracture of occipital bone and injury in the brain, of the deceased, his left hip joint was also found fractured with wound over left injuinal region, and lacerated wounds were found around the anus splitting the anal canal. This clearly shows the brutality with which the deceased was assaulted with the clear intention to cause his death. We are of the considered view that the prosecution has been able to bring home the charge against the accused Khublal Yadav for the offence under Section 302 of the of the Indian Penal Code. 27. However, the fact remains that due to the physical incapability of the accused Surju Yadav, we are of the considered view that he is entitled to the benefits of doubt even though the eye witnesses have supported the prosecution case against him also. 27. However, the fact remains that due to the physical incapability of the accused Surju Yadav, we are of the considered view that he is entitled to the benefits of doubt even though the eye witnesses have supported the prosecution case against him also. In view of the fact that the commission of the offence by the members of an unlawful assembly, in prosecution of its common object, is found absolutely doubtful, the conviction cannot be sustained with the help of Section 149 of the Indian Penal Code, but the conviction under Section 302 of the Indian Penal Code can fully be sustained against the accused Khublal Yadav, for committing the offence of murder of the deceased Bhola Yadav, in view of the specific allegation of assault upon the deceased, against him. So far the conviction of the accused Khublal Yadav for the offence under Sections 307/149 of the Indian Penal Code is concerned, in the evidence of P.W-9, Chundri Devi, there being no allegation against him to have assaulted her, his conviction for the said offence under Sections 307/149 of the Indian Penal Code cannot be sustained. 28. For the foregoing reasons, the impugned Judgement of conviction dated 03.03.2009 and Order of sentence dated 04.03.2009, passed by the learned 3rd Additional Sessions Judge, Deoghar, in S.C. No. 321 of 2006, convicting and sentencing the appellant No. 1 Suryu Yadav @ Surju Yadav @ Surju Mahto, for the offences under Sections 302/149 and 307/149 of the Indian Penal Code, are hereby, set aside. This appellant is given the benefits of doubt and he is acquitted of the charges. Appellant Suryu Yadav @ Surju Yadav @ Surju Mahto is on bail and he is discharged from the liabilities of his bail bond. 29. The aforesaid Judgement of conviction and Order of sentence convicting the appellant No. 2 Khublal Yadav for the offence under Sections 307/149 of the Indian Penal Code, are also hereby, set aside, but his conviction and sentence for the offence under Section 302 of the Indian Penal Code are sustained, which we hereby, affirm, to that extent only. Appellant Khublal Yadav is already in custody, undergoing the sentence. 30. This appeal is accordingly, allowed in part. Let the Lower Court Records be sent back to the Court concerned forthwith, along with the copy of this Judgement. B.B. Mangalmurthi, J. - I agree. Appeal partly allowed.