Hemant Kumar Srivastava, J.—Both the above stated criminal appeals have arisen out of impugned judgment of conviction and sentence order dated 24.05.1995 passed by learned 2nd Additional Sessions Judge, Muzaffarpur in Sessions Trial No. 82 of 1992/ 13 of 1992 by which and whereunder, the learned trial court convicted all the appellants for the offences punishable under Sections 302/149 of the I.P.C. and 323/149 of the I.P.C. whereas acquitted the appellants for the offence punishable under Section 307/149 of the I.P.C. and accordingly, sentenced them to undergo rigorous imprisonment for life for the offence punishable under Section 302/149 of the I.P.C. and to undergo rigorous imprisonment for one month for the offence punishable under Section 323/149 of the I.P.C. However, both the sentences were ordered to run concurrently. Since both the above stated appeals were heard together, the above stated appeals are being disposed of by this common judgment. 2. PW-4 Ram Prasad Sahani gave his ferdbeyan to PW-5 Vinay Kumar Sinha, the then Sub Inspector of Kurhani police station on 21.04.1991 at 11:15 PM. in injured condition at Kurhani hospital to this effect that in the night of same day at about 7:00 P.M. , Teka was arranged at the door of his co-villager Bindeshwar Das where an altercation had taken place between FIR named accused Shambhu Sahani and one Jai Kishun Sahani. However, both the aforesaid persons went to their respective homes and Jai Kishun Sahani narrated the aforesaid incident to his father Ram Ashray Sahani whereupon Ram Ashray Sahani went to the house of Bhajan Sahani and made complain to Bhajan Sahani but he was chased by Bhajan Sahani and, thereafter, he fled away from there and came to his Bathan. PW-4, further, claimed that in the same night at about 10:30 P.M., all of a sudden appellants and other F.I.R. named accused being armed with lathi and phatta came at his door and Bindeshwar Sahni ordered the others to kill the informant and, thereafter, all the FIR named accused caught the informant and dragged him into the courtyard of Bihari Sahani where he was assaulted by lathi and phatta by all the above stated FIR named accused persons. He, further, claimed that his wife came there and tried to save him but Bindu Sahani gave one lahti blow on her head as a result of which she fell down on the ground and blood from her head started oozing out. He, further, claimed that other FIR named accused started assaulting her by fists, slaps and lathi and also assaulted her by climbing on her chest as a result whereof, she died then and there. PW-4, further, claimed that Shyamlal Sahni also came there and tried to save him but he was tied by the FIR named accused persons and thereafter, he was, too, assaulted by them with fists and slaps. The accused persons brought the dead body of the deceased from their courtyard and kept the dead body on a cot which was lying at the door of aforesaid accused persons. PW-4, further, claimed that in the aforesaid occurrence, some persons of the accused side, too, sustained injury. 3. On the basis of aforesaid ferdbeyan of PW-4, Kurhani P.S. Case No. 59 of 1991 for the offences punishable under Sections 147, 148, 149, 447, 342, 307, 323 and 302 of the I.P.C. was registered and formal FIR for the above stated offences against the appellants and others was drawn up on 22.04.1991. The case was investigated by the PW-5 and after completion of investigation, he submitted charge sheet against the appellants and others. The cognizance of the offence was taken and the case was committed to the court of sessions, in usual way. The appellants were put on trial and stood charged for the offences punishable under Sections 302/149, 307/149 of the I.P.C. whereas appellant Bindu Sahani was separately charged for the offence punishable under Section 302 of the I.P.C. The appellants denied the charges and claimed to be tried. 4. In course of trial, prosecution examined, altogether, six witnesses and also got exhibited some documents as documentary evidence. The statements of appellants were recorded under Section 313 of the Cr.P.C. in which they reiterated their innocence. 4. In course of trial, prosecution examined, altogether, six witnesses and also got exhibited some documents as documentary evidence. The statements of appellants were recorded under Section 313 of the Cr.P.C. in which they reiterated their innocence. The appellants did not adduce any evidence in support of their defence but from perusal of trends of cross-examination of prosecution witnesses as well as the statements of the appellants recorded under Section 313 of the Cr.P.C., it would appear that the defence of the appellants was not only total denial of the prosecution story but the appellants also claimed that it was prosecution party who attacked on them and in that course, the deceased sustained injury and subsequently died. 5. Learned Amicus Curiae Mr. Ram Priya Sharan Singh, Advocate appearing in Criminal Appeal (DB) No. 140 of 1995 assailed the impugned judgment of conviction and sentence order arguing that the learned trial court passed the judgment of conviction only on the basis of surmises and conjectures and the learned trial court failed to appreciate the evidences in right perspective. Learned Amicus Curiae, further, submitted that it was specific case of the appellants that it was prosecution party who attacked at the house of appellants and in that course when the deceased intervened, she sustained injury and died. He submitted that PW-4 has admitted in his ferdbeyan that some persons from the side of the appellants had also sustained injury in the occurrence. 6. Learned Amicus Curiae, further, submits that PW-4 claimed in his ferdbeyan that the alleged occurrence took place inside the courtyard of appellant Bihari Sahani but in course of trial, PW-4 changed the place of occurrence with ulterior motive and, therefore, it is obvious that prosecution failed to prove the place of occurrence beyond all shadow of reasonable doubts. 7. Learned Amicus Curiae, further, submits that PW-4 also changed the manner of occurrence in course of trial and developed the prosecution story but the learned trial court failed to take notice of above stated developments in prosecution case. 8. 7. Learned Amicus Curiae, further, submits that PW-4 also changed the manner of occurrence in course of trial and developed the prosecution story but the learned trial court failed to take notice of above stated developments in prosecution case. 8. Learned Amicus Curiae also submits that except PW- 4, not a single prosecution witness came to support the prosecution case and moreover, the prosecution also failed to bring on record the first information report which was given prior to recording the ferdbeyan of PW-4 and non-bringing of first information regarding the occurrence on record creates doubt about the prosecution case but the learned trial court failed to take notice of the aforesaid fact. 9. Learned counsel Mr. Amish Kumar appearing in Criminal Appeal (DB) No. 145 of 1995 seconded the above stated submissions of learned Amicus Curiae and he added that there was inconsistency in the statement of PW-4 but the learned trial court completely overlooked the inconsistencies while passing the impugned judgment of conviction and sentence order. 10. On the other hand, learned Additional Public Prosecutor appearing for the State supports the impugned judgment of conviction and sentence order arguing that no doubt, only PW-4 claims himself to be eye witness of the alleged occurrence but it is settled principle of law that the judgment of conviction can be passed on sole testimony of a witness. In the present case, PW-4 has supported the prosecution case and, specifically, stated that it were appellants who committed the murder of the deceased and, therefore, both the above stated appeals are liable to be dismissed. 11. Having heard the contentions of both the parties, we went through the record along with lower court records. Admittedly, altogether, six prosecution witnesses were examined by the prosecution in course of trial and out of them, PW-1 Fuddi Sahani, PW-2 Ram Pukar Sahani and PW-3 Jagarnath Sahani have been declared hostile by the prosecution. However, PW-1 and PW- 3 have partly stated about the alleged occurrence. 12. PW-1 Fuddi Sahani claimed that he was sleeping in his house and having heard the noise he went near the door of Bihari Sahani where he saw Ram Prasad Sahani, Ramraj Sahani, Jaylal Sahani, Basuki Sahani, Mantu Sahani and Jai Kishun Sahani. He also noticed that Ram Raj and Jay Lal were armed with lathi and they were assaulting Bihari Sahani and Ravindra Sahani. He also noticed that Ram Raj and Jay Lal were armed with lathi and they were assaulting Bihari Sahani and Ravindra Sahani. This witness also claimed that he saw Kailashi Devi lying on the ground and at that time she was alive but this witness expressed his inability to say who had assaulted Kailashi Devi. 13. Similarly, PW-3 Jagarnath Sahani claims that he went to the door of Bihari Sahani having heard the noise where he saw Bhajan Sahani, Gajan Sahani, Shambhu Sahani, Binda Sahani, Bindeshwar Sahani, Kitablal Sahani, Hisablal Sahani, Marham Sahani, Bihari Sahani, Sewak Sahani, Bholi Sahani and Ramjee Sahani who were armed with lathi and dabia. This witness claimed that the aforesaid persons started assaulting Ram Prasad Sahani and in that course, Bindeshwar Sahani ordered the others to kill upon which Shambhu Sahani gave lathi blow on the head of Kailashi Devi. Similarly, Sewak Sahani gave dabia blow to Kailashi Devi whereas Mahesh Sahani and Ram Prasad Sahani assaulted Kailashi Devi causing injury on her hand. He, further, claimed that Kailashi Devi having sustained injury fell down at the door of house of appellant Bihari Sahni. At this juncture, this witness was declared hostile and the attention of this witness was drawn towards his statement recorded under Section 161 of the Cr.P.C. but this witness denied the suggestion of the prosecution regarding the statements recorded by the investigating officer (PW-5) under Section 161 of the Cr.P.C. This witness on being cross-examined by the defence admitted that he had not gone in the courtyard of house of the appellants either before or after the alleged occurrence. This witness, further, admitted that when the PW-4 Ram Prasad Sahani was being assaulted, Kailashi Devi came there and the nephew of Ram Prasad Sahani, namely, Shyam Lal was also present there. This witness, further, claimed that PW-4 Ram Prasad Sahani as well as above stated Shyam Lal were taken by the appellants inside their house but Kailashi Devi never went inside the courtyard of house of the appellants. This witness, further, claimed that Kailashi Devi had sustained lathi blow twice whereas she sustained one dabia blow in his presence. This witness, further, stated that having sustained injury Kailashi Devi went inside the courtyard of house of appellant Bihari Sahni and after that this witness did not see Kailashi Devi. This witness, further, claimed that Kailashi Devi had sustained lathi blow twice whereas she sustained one dabia blow in his presence. This witness, further, stated that having sustained injury Kailashi Devi went inside the courtyard of house of appellant Bihari Sahni and after that this witness did not see Kailashi Devi. This witness, further, claimed that on the next day of alleged occurrence, he had seen the injuries on the person of Bihari and Ravindra and also learnt that both the aforesaid persons had gone to hospital. This witness also claims that his statement was not recorded in the night of alleged occurrence rather his statement was recorded by police at Muzaffarpur but he could not say as to when his statement was recorded. 14. PW-4 Ram Prasad Sahani is the informant and he claims himself to be injured as well as eye witness of the alleged occurrence. This witness supports his ferdbeyan and claimed that in the night of alleged occurrence at about 8:00 P.M. an altercation had taken place between Jaikishun Sahani and Shambhu Sahani but subsequently, both the aforesaid persons went to their respective homes and Jai Kishun Sahani narrated the story of aforesaid altercation to his father Ram Ashray Prasad who went to make complain to appellant Bhajan Sahani. This witness, further, claims that on the same night at about 10:00 P.M., appellants and others came with lathi, farsa, hasua, phatta and Bindeshwar Sahani ordered the others to kill him and thereafter, all the appellants caught him and brought him to the door of Bihari Sahani where firstly he was assaulted by means of hasua but fortunately, he did not sustain any hasua injury and thereafter, Mahesh gave lathi blow on his right hand as a result whereof he got fracture on his right hand. P.W 4 further claims that he was dragged by the appellants in their court-yard, where he was assaulted by the appellants with BATHKHARA and thereafter, he was brought at the door of the Bihari Sahani where his wife Kailashi Devi (deceased) having heard the noise came there but appellant Ram Sewak gave Hasua blow on the head of his wife whereas appellant Bindu Sahni gave lathi blow on her forehead. This witness, further, claims that after the above stated assault, all the appellants climbed on the chest of his wife and put pressure on her chest as a result of which his wife died then and there. He, further, claims that appellant Bihari Sahni brought the dead body of deceased from courtyard and kept the dead body at the door. This witness, further, claims that one Chiranjee informed the police and after getting information from aforesaid Chiranjee, police came at the place of occurrence and seeing the police the appellants fled away from there. This witness, further, claims that he as well as his wife were brought to hospital where his fardbeyan was recorded by the police. On being cross-examined by the defence, this witness states that he had not seen any injury on the person of Jai Kishun. However, this witness admits that he had met Shambhu at police station. This witness, further, states that Jai Kishun narrated the story of altercation to his father at his Bathan but at that time, he was not present at Bathan. This witness, further, states that Ramashray Sahni had gone to make complain against Bhajan Sahni but he had not accompanied Ramashray Sahni rather he was present there from before. This witness, further, admits that when Ramashray Sahni made complain, no altercation had taken place. This witness, further, states that he was caught by the appellants at the door of Bihari Sahni but he did not raise any alarm. However, when the appellants started assaulting him, he raised alarm. This witness, further, states that he had sustained only one injury caused by lathi. This witness, further, states that he was dragged into the courtyard and his hand and waist were tied by rope. This witness, further, states that he was made captive in the courtyard for near about one hour. This witness, further, admits that none of the villagers had entered into courtyard out of fear. However, this witness claims that his wife went in the courtyard to save him. This witness, further, admits that police came there and got released him from the clutches of the appellants. He also claims that his hands swelled on account of tying his hands. This witness, further, admits that he got treated his injuries and remained in hospital for near about two months. This witness, further, admits that police came there and got released him from the clutches of the appellants. He also claims that his hands swelled on account of tying his hands. This witness, further, admits that he got treated his injuries and remained in hospital for near about two months. This witness denies the suggestion of the defence that he was not admitted in the hospital nor his any treatment was done. This witness further says that his wife died in the courtyard of Bihari Sahni. This witness states that he had not made the statement before the police to this effect that the appellants had given Hasua blow to him. This witness, further, states that he had made statement before the police that appellant Ram Sewak Sahni had assaulted his wife by means of Hasua. This witness, further, states that he had not made statement before the police to this effect that the appellants took away him from his door. However, this witness, further, states that he had made statement before the police that the appellant Mahesh Sahni had assaulted him by lathi causing injury on his hand. This witness further admits that appellant Bihari Sahni had lodged case in which he as well as others were accused. This witness, further, states that he had not seen injury on the person of any of the appellants. This witness denied this fact that he had stated before the police that some appellants had sustained injury. This witness also denied the suggestion of defence that he as well as his associates had attacked on the house of appellant Bihari Sahni and appellants had used force in their defence and when his wife intervened in the aforesaid incident, she sustained injury. 15. PW-6 Dr. Mumtaz Ahmad claims that on 22.04.1991 at about 5.00 P.M. he did post mortem examination on the dead body of the deceased Smt. Kailashi Devi and found following antemortem injuries:- lacerated wound on left side of parietal region of head 2” x 0.5” upto skull bone. This witness further states that after opening the skull of deceased fracture of left parietal and left temporal bone were found and the cause of death of deceased was above stated injuries. This witness further states that the aforesaid injury was caused by hard and blunt substance. 16. PW-5 Vinay Kumar Sinha is the investigating officer. This witness further states that after opening the skull of deceased fracture of left parietal and left temporal bone were found and the cause of death of deceased was above stated injuries. This witness further states that the aforesaid injury was caused by hard and blunt substance. 16. PW-5 Vinay Kumar Sinha is the investigating officer. This witness states that on 21.04.1991, he got an information that the scuffling was going on between two parties of village Kudhani Tola. He entered a sanha about the aforesaid incident and went there. This witness claimed that he recorded the fardbeyan of PW 4. This witness, further, states that he drew the formal FIR and took the charge of investigation. This witness at para 4 of his examination-in-chief describes the place of occurrence. This witness states that the place of occurrence was road, situated in front of house of appellant Bihari Sahni. This witness found blood fallen on the place of occurrence and accordingly, seized the blood. This witness also claims that he recorded the statement of prosecution witnesses. On being crossexamined by the defence, this witness admitted that Kudhani P.S. Case No. 60 of 1991 was lodged by the appellants in the form of counter case of the present case. This witness also admitted that he had investigated Kudhani P.S. Case No. 60 of 1991 but on account of his transfer the aforesaid Kudhani P.S. Case No. 60 of 1991 was handed over to another police official. It is pertinent to note here that the cross-examination of investigating officer was adjourned but subsequently, PW-5 did not turn up for cross-examination and accordingly, the deposition of PW-5 became redundant. 17. On evaluating the entire prosecution evidence, we find that except PW-4, not a single prosecution witnesses supports the prosecution story and so far as PW-4 is concerned, he happens to be informant of the case but in course of trial, he improved his statement and the attention of PW-4 was drawn by the defence towards the improvements made by PW-4 in course of trial. Admittedly, the investigating officer did not turn up for cross-examination and his statement became redundant and, therefore, it is obvious that the defence could not get an opportunity to draw the attention of investigating officer towards the improvements made by PW-4 in his deposition in course of trial and, therefore, the aforesaid latches of the prosecution case has caused serious prejudice to the defence. 18. PW-4 claimed that appellant Ram Sewak Sahani had assaulted the deceased by means of Hasua causing head injury to her and thereafter, appellant Bindu Sahani assaulted the deceased causing injury on her forehead and the remaining appellants having climbed on the chest of the deceased pushed her chest as a result whereof deceased died then and there. The post mortem report of deceased does not corroborate the claim of PW-4 because only one injury on the head of deceased was found and so far as the fracture of left parietal and left temporal bone are concerned, the same were impacts of single blow. Furthermore, some ribs of the deceased were found fractured but the claim of the PW 4 that all the appellants having climbed on the chest of the deceased pushed her chest does not appear to be convincing because it is not possible for 3 to 4 persons to sit on the chest of one person and therefore, the aforesaid claim of PW-4 appears to be hypothetical and is liable to be disbelieved. 19. PW-4 has claimed that he had, too, sustained injury in the alleged occurrence but no injury report of PW 4 was brought on record nor the doctor, who had allegedly examined PW 4, was produced by the prosecution in course of trial. Therefore, in absence of any injury report of PW 4, it is difficult to believe on the claim of PW 4 and in our view, the benefit of doubt shall go in favour of the defence. 20. Therefore, in absence of any injury report of PW 4, it is difficult to believe on the claim of PW 4 and in our view, the benefit of doubt shall go in favour of the defence. 20. No doubt, the wife of PW-4 died on the alleged date of occurrence and she died of the injuries sustained by her as it is evident from perusal of postmortem report of her dead body but the claim of the appellants is that it was prosecution party who came at the door of appellants and assaulted the appellants for which the police case was lodged against PW-4 and others and in that occurrence, wife of PW-4 sustained injury and died then and there. In fardbeyan, PW-4 claimed that he was dragged in the courtyard of appellant Bihari Sahani and his wife came there and sustained injury in the courtyard of Bihari Sahani and furthermore, she died in the courtyard of Bihari Sahani but in course of trial, PW-4 tried to change the place of occurrence with an object to demolish the claim of the appellants that it was prosecution party who attacked on the appellants. It is pertinent to note here that claim of PW-4 itself goes to show that entire occurrence took place inside the house of appellant Bihari Sahani and, therefore, in our opinion, the prosecution failed to prove not only the manner of occurrence but also place of occurrence beyond all shadow of reasonable doubts and in that circumstance, the appellants are entitled to get the benefit of doubt. 21. On the basis of aforesaid discussions, both the above stated criminal appeals are allowed and the impugned judgment of conviction and sentence order are, hereby, set aside. All the appellants are on bail. They are discharged from the liabilities of their respective bail bonds. 22. Before parting with this judgment, we would like to appreciate the assistance given by Shri Ram Priya Sharan Singh, Advocate as Amicus Curiae. Shri Ram Priya Sharan Singh, Advocate has long practice of near about 50 years and on the request of this court he gave his valuable time and assistance to this court. Therefore, it is our duty to honour him by directing the Patna High Court Legal Services Committee, Patna to honour him by paying remuneration of rupees three thousand. 23. Shri Ram Priya Sharan Singh, Advocate has long practice of near about 50 years and on the request of this court he gave his valuable time and assistance to this court. Therefore, it is our duty to honour him by directing the Patna High Court Legal Services Committee, Patna to honour him by paying remuneration of rupees three thousand. 23. Let a copy of this judgment be sent to Patna High Court Legal Services Committee, Patna for needful. 24. A copy of first and last page of this judgment be handed over to Shri Ram Priya Sharan Singh, Advocate so that he could lay his claim before the Patna High Court Legal Services Committee, Patna. ?