JUDGMENT : AMITAV K. GUPTA, J. 1. The captioned appeals arise out of a common Judgment, hence they have been clubbed and heard together. 2. The appellants, of the aforementioned appeals, are aggrieved by the Judgment of conviction dated 3rd March, 2008 and Order of sentence dated 10th March, 2008, passed by the learned 1st Additional Sessions Judge, Chatra, in Sessions Trial No.172 of 2001, whereby, the appellants have been found guilty and convicted for the offences under Sections 302 /149 of the Indian Penal Code, and the appellants namely, Sitaram Dangi and Basant Dangi, have been convicted under Sections 148, 324 and 379 of the Indian Penal Code and appellants Feku Dangi, Jagnarayan Dangi, Prakash Dangi, Lakhan Dangi, Shyamlal Dangi, Tekan Mahto, Mahendra Dangi, Bhikhan Dangi, Chhedi Dangi and Babuni Dangi, have also been convicted under Sections 147 and 323 of the Indian Penal Code. All the appellants have been sentenced to undergo rigorous imprisonment for life for the offences under Sections 302 / 149 of the Indian Penal Code and a fine of Rs.5000/-.The appellants namely Sitaram Dangi and Basant Dangi have been sentenced to undergo rigorous imprisonment for 3 years for the offence under Sections 148, 379 and 324 of the Indian Penal Code. The appellants namely, Feku Dangi, Jagnarayan Dangi, Prakash Dangi, Lakhan Dangi, Shyamlal Dangi, Tekan Mahto, Mahendra Dangi,Bhikhan Dangi, Chhedi Dangi and Babuni Dangi, have been sentenced to undergo imprisonment of one year for the offence under Sections 147 and 323 of the Indian Penal Code. All the sentences were ordered to run concurrently. 3. The prosecution case as unfolded in the ferdbeyan (Ext.-P2), of the informant Sukhdeo Mahto (PW-16), is that on 10.07.2000 at 5.00 a.m., the informant along with his family members were ploughing their land. In the meantime the female members of the family arrived with their breakfast. It is alleged that at about 9.00 a.m. Ganpat Mahto, Feku Mahto, Lakhan Dangi, Sitaram Dangi, Basant Dangi, Jagnarayan Dangi, Babuni Dangi, Shyamlal Dangi, Mahendra Dangi, Bhikhan Dangi, Ram Sewak Dangi, Chhedi Dangi, Baldeo Mahto (Since dead) Tekan Mahto, Prakash Dangi variously armed with lathi and farsa after forming an unlawful assembly came at the land and started assaulting the informant and his family members. It is alleged that Babuni Mahto assaulted him with lathi. He somehow managed to escape and hide behind a Sakhua (Oak) tree. It is alleged that Babuni Mahto assaulted him with lathi. He somehow managed to escape and hide behind a Sakhua (Oak) tree. He witnessed the occurrence from behind the tree. Out of fear for his life he did not venture to come to rescue of his family members. It is alleged that all the accused persons assaulted Lekho Mahto, Dular Mahto, Birendra Mahto, Dassrath Mahto, Babulal Mahto, Jagdish Mahto, Degan Mahto and Bhimal Mahto (Deceased) with lathi. They also stomped and trampled the stomach of Bhimal. That accused Sitaram Dangi and Basant Dangi authored farsa blows on the arm and head of Sita Devi and Kamli Devi respectively and snatched their gold ear rings and silver necklace of Kamli Devi. It is further alleged that accused Mahendra Dangi, Lakhan Dangi, Shyamlal Dangi and Ram Sevak Dangi surrounded and assaulted Bhimal Mahto with lathi. Ram Sevak Dangi gave the last lathi blow on the head of Bhimal and stomped and trampled the stomach of Bhimal Mahto due to which Bhimal Mahto died. It is alleged that about a week back the accused persons had given life threats to the informant and his family members and forbade them to plough the said land. 4. On the basis of the ferdbeyan, Itkhori P.S. Case No.59 of 2000, corresponding to G.R. No.331 of 2000 was instituted under Sections 147, 148, 149, 302, 379, 323 and 324 of the Indian Penal Code (for short I.P.C), subsequently Section 307 IPC was added. On completion of investigation the charge-sheet was submitted by police against the accused persons and cognizance was taken. 5. After commitment of the case to the court of session, charge under Sections 147, 148, 149, 323, 324, 379, 302/34 of the I.P.C was framed against all the accused. The accused persons pleaded not guilty and claimed to be tried. They faced the trial for the aforesaid charges. 6. During trial three accused namely Ram Sevak Dangi, Baldeo Mahto and Ganpat Mahto died hence, proceedings of the trial was dropped against them. 7. In course of trial twenty two witnesses (22) were examined by the prosecution. Out of them, P.W.-15 Hiraman Mahto, P.W.-21 Rameshwar Mahto and P.W.-22 Nagendra Prasad singh @ Lakhan singh are formal witnesses. PW-21 has produced Hukumnama (Ext.-P19) and fard-report of Amin (Ext.-P20) along with 11 rent receipts (Ext.-P21 to Ext.-P31). 7. In course of trial twenty two witnesses (22) were examined by the prosecution. Out of them, P.W.-15 Hiraman Mahto, P.W.-21 Rameshwar Mahto and P.W.-22 Nagendra Prasad singh @ Lakhan singh are formal witnesses. PW-21 has produced Hukumnama (Ext.-P19) and fard-report of Amin (Ext.-P20) along with 11 rent receipts (Ext.-P21 to Ext.-P31). PW-22 Lakhan Singh is the Advocate clerk who produced the hukumnama and the rent receipts. PW-15 proved the carbon copy of the inquest report of dead body of deceased Bhimal Mahto which was prepared in the same process with the original and is marked as Ext.-P1. PW-18 Dr. Satyendra Kumar Choudhary is the doctor who conducted the post-mortem examination on the dead body of deceased and prepared post-mortem report marked Ext.-P3. PW-19 Dr. Chandra Shekhar Agrawal examined 12 injured persons including the informant. He has prepared the injury reports marked Ext.-P4 to Ext.-P15. He had examined two injured accused namely, Baldeo Mahto and Ram Lakhan Mahto and proved their injury reports marked Ext.-P16 and Ext.-P17, respectively. PW-20 Abhay Shankar is the investigating officer (I.O.), who has proved formal FIR marked Ext-18. P.Ws.-1, 2, 6, 7, 8, 9, 11, 12, 13, 14, 16 and 17 are injured eyewitnesses. P.Ws.-3, 4 and 5 are the independent witnesses. The defence has also examined D.W-1 namely Sanjay Singh, who is the deed writer. 8. P.W.-1, Babulal Dangi, is the brother of deceased (Bhimal). He has named all accused persons. He deposed that when he along with other family members was ploughing the land, the accused persons variously armed with farsa, lathi and rod came there and started assaulting them due to which he and his family members sustained injuries. He deposed that accused Sita Ram Mahto assaulted Sita Devi with farsa on her right arm and snatched her gold ear ring and Basant Mahto had assaulted Kamli Devi with farsa on her head and snatched her gold ear ring and silver chain. That accused Chhedi, Ramsevak (since dead) assaulted deceased Bhimal Mahto with lathi. That Lakhan, Mahindra, Ramsevak and Shyamlal stomped and trampled the chest of deceased due to which Bhimal (since deceased) died. In cross examination he has admitted that there is previous enmity with accused persons on account of land dispute. In para-23 of cross examination he has stated that he and his family members had gone to the land for the first time on the day of occurrence. In cross examination he has admitted that there is previous enmity with accused persons on account of land dispute. In para-23 of cross examination he has stated that he and his family members had gone to the land for the first time on the day of occurrence. He admitted that there was civil litigation with respect to land going on between the parties. 9. P.W.-2, Sita Devi has deposed more or less like P.W-1. During cross examination, in para-25, she specifically stated that she cannot say who of the accused assaulted whom. She has admitted about the land dispute between the parties. 10. P.W.-4, Nand Lal Mahto, is a co-villager. He deposed that while he was searching for his Kara (buffalo) had reached the place of occurrence. He saw that Bhimal (deceased) along with his family members was ploughing the land and the accused persons armed with lathi came there. He had requested both the parties to amicably settle the dispute through Panchayati but they did not pay any heed. That a fight ensued between both the parties, thereafter, he left the place. Subsequently, he came to know that Bhimal Mahto had been killed. P.W.-4 has testified in para-3 that there was a free fight between the parties. 11. P.W.-6, Lekho Mahto, has supported the prosecution story. He deposed that accused Chhedi had struck a blow of lathi on the deceased. In cross examination he stated that he had not stated before the police that Tekan Mahto had ordered the accused persons to kill all the members of informant’s family. He has admitted that a title appeal is pending in between the parties for the said land. He has stated that he cannot say specifically as to who of the accused assaulted whom. 12. P.W.-7, Jagdish Mahto, is the brother of deceased. He has deposed that Sita Ram Dangi and Pheku Ram Dangi had assaulted him on his leg with the reverse side of the farsa. He deposed that when wife of Bhimal (deceased) had gone near the deceased then at that time the deceased was alive. Thereafter, Bhimal’s body was washed with water. In cross examination he also admitted that there is land dispute between the parties. 13. He deposed that when wife of Bhimal (deceased) had gone near the deceased then at that time the deceased was alive. Thereafter, Bhimal’s body was washed with water. In cross examination he also admitted that there is land dispute between the parties. 13. P.W.-8, Pemini Devi, has supported the prosecution story but in her examination-in-chief she has not deposed about the snatching of ornaments of victim Sita Devi and Kamli Devi and has not testified about who of the accused persons had assaulted Sita Devi and Kamli Devi. 14. P.W.-9, Satiya Devi has deposed that Baldev Dangi and Tekan Dangi had assaulted her on her head. She has not stated anything about the snatching of ornaments of victim Sita Devi (P.W.-2) and Kamli Devi (P.W.-14). She has also not stated as to who of the accused persons assaulted Sita Devi (P.W.-2) and Kamli Devi (P.W.-14). In her cross examination she admitted that she had not stated before the police that her husband had told Tekan Mahto for taking a final decision. She admitted that there is land dispute between parties. 15. P.W.-10, Pramod Kumar, is the cousin of the deceased. He has supported the prosecution story but his testimony is lacking in detail regarding the manner and weapons of assault during the occurrence. He has deposed that his father had sustained injuries on account of the assault by the accused persons and Bhimal (deceased) had died. He has not made any specific allegation of assault against any particular accused. 16. P.W.-11, Dashrath Dangi, is son of deceased. He supported the prosecution story but he has not deposed about the details of the occurrence or the manner and the weapons used by the accused persons while assaulting his father. 17. P.W.-12, Dular Mahto, is the brother of deceased. He has supported the prosecution story. However he has deposed that Shyamlal Dangi and his brother had stomped upon and trampled the chest of deceased (Bhimal). 18. P.W.-13, Birendra Mahto, has supported the prosecution story. He has deposed that accused Chhedi gave lathi blow as a result of which, deceased fell down then accused namely, Ram Sevak, Lakhan and Shyamlal stomped and trampled the chest, of Bhimal, consequent thereto, Bhimal died. 19. PW-14, Kamli Devi, is the wife of deceased. 18. P.W.-13, Birendra Mahto, has supported the prosecution story. He has deposed that accused Chhedi gave lathi blow as a result of which, deceased fell down then accused namely, Ram Sevak, Lakhan and Shyamlal stomped and trampled the chest, of Bhimal, consequent thereto, Bhimal died. 19. PW-14, Kamli Devi, is the wife of deceased. She has supported the prosecution story and deposed that accused Chhedi gave a lathi blow as a result of which, Bhimal (deceased) fell down whereafter accused persons namely Mahendra, Lakhan and Shyamlal stomped and trampled the chest of Bhimal due to which Bhimal died. She has deposed that after the death of her husband she started weeping and rested the head of her husband on her lap. At that time Tulsi Mistry and Braham Dev Dangi came there and her husband was alive. Thereafter they carried Bhimal (deceased) and laid him under the tree. They had applied oil on the body of her husband but by that time he had died. 20. P.W.-16, Sukhdeo Mahto, is the informant of the case as well as brother of the deceased. He has deposed that all the accused persons assaulted Bhimal and accused Chhedi gave a lathi blow as a result of which, the deceased fell down and the accused persons namely, Shyamlal and Mahendra stomped and trampled upon his chest, whereafter Bhimal died. He has admitted that there is land dispute between him and accused persons and further stated that a Title Suit No.37/92 is pending between them. 21. P.W.-17, Degan Mahto, is the cousin of the deceased. He has deposed that accused Sita Ram assaulted him with an iron rod. He has not disclosed the details regarding the manner in which the deceased Bhimal Mahto was assaulted. In cross-examination he admitted that it was for the first time he had gone to the land on the day of the occurrence. 22. The attention of the prosecution witnesses regarding the contradictions in their statement under Section 161 Cr.P.C. vis-a-vis their testimony in the court has been elicited by the defence which shall be discussed in the deposition of P.W.-20 in the subsequent paragraph. 23. P.W.-18, Dr. Satyendra Kumar Chaudhary, has conducted the post-mortem over the body of the deceased and found the following injuries:- (i) Bruise on the back of chest wall on Right side 3’’x1’’ dark brown in color. 23. P.W.-18, Dr. Satyendra Kumar Chaudhary, has conducted the post-mortem over the body of the deceased and found the following injuries:- (i) Bruise on the back of chest wall on Right side 3’’x1’’ dark brown in color. (ii) Longitudinal bruise on the back of the chest wall in middle area 6’’x1’’ dark brown in colour. (iii) Bruise on the back of chest wall 2’’x1’’ (iv)Bruise on the right scapular region of back of chest 3’’x1’’. (v) Bruise on the posterior aspect of left elbow joint 1’’x1/2’’. (vi) Fracture of VIII, IX, X, XI Ribs on the right side. Upon exploration right side lung cavity was found full of blood and the lung was punctured. In his cross-examination he has stated that lung was punctured due to fracture of ribs. He testified that the injuries were caused by hard and blunt substances. In his opinion cause of death was due to shock and hemorrhage. In cross-examination he stated that he did not find any external bleeding. He further stated that he has not mentioned the kind of fracture. He has explained that in simple fracture bone is not exposed to air but in compound fracture bone is exposed to air. He has not mentioned about any injury on the head of the deceased. It is evident that the finding of post-mortem report does not corroborate the testimony of prosecution witnesses with respect to the lathi blow inflicted upon the head of the deceased by the accused persons. 24. P.W.-19, Dr. Chandra Shekhar Agrawal, had examined the injured witnesses as well as two injured accused namely, Baldeo Mahto and Ram Lakhan Mahto. He testified that he examined Jagdish Dangi (P.W.-7) and found five swelling injuries measuring 4”x2’’ on the right thigh, 3’’x1” whole circumference below right knee caused by hard and blunt substance and proved the injury report marked as Ext.-P4. He examined Sukhdeo Mahto (P.W.-16) but did not find any visible injury. The injury report is marked as Ext.-P5. He examined Kamli Devi (P.W.-14) and found one lacerated wound 2’’x1’’ over right side of scalp caused by hard and blunt substance. The injury was simple in nature and the injury report is marked as Ext.-P6. He examined Pemani Devi (P.W.-8) and found two swelling injuries measuring 2’’x1’’ on lower part of left leg , 1’’x1’’ on left side of scalp all caused by hard and blunt substance. The injury was simple in nature and the injury report is marked as Ext.-P6. He examined Pemani Devi (P.W.-8) and found two swelling injuries measuring 2’’x1’’ on lower part of left leg , 1’’x1’’ on left side of scalp all caused by hard and blunt substance. The injuries were simple in nature. The injury report is marked as Ext.-P7. He examined Sita Devi (P.W.-2) and found swelling on the right arm with penetrating wound in upper part and fracture of right humerous caused by pointed weapon and hard and blunt substance. The injury report is marked as Ext.-P8. He examined Birendra kumar Dangi (P.W.-13) and found fracture of upper part of right forearm grievous in nature caused by hard and blunt substance. The injury report is marked as Ext.-P9. He examined Dasharath Dangi (P.W.-11) and found swelling over both scapular region and bruise on right leg injury. The injury report is marked as Ext.-P10. He examined Lekha Mahto (P.W.-6) and found fracture of lower part of right leg caused by hard and blunt substance. The injury was grievous in nature .The injury report is marked as Ext-P11. He examined Dular Mahto (P.W.-12) and found pinkish blue bruise on left scapular region caused by hard and blunt substance. The injury was simple in nature. The injury report is marked as Ext.-P12. He examined Satia Devi (P.W.-9) and found lacerated wound on right side of forehead and abrasion on left wrist caused by hard and blunt substance. The injury was simple in nature. The injury report is marked as Ext.-P13. He examined Degan Mahto (P.W.-17) and found the injury simple in nature. The injury report is marked as Ext.-P14. He examined Babulal Dangi (P.W.-1) and found swelling on the lower part of left forearm, on the right shoulder and right knee caused by hard blunt substance. The injury was simple in nature. The injury report is marked as ExtP-15. 25. He also examined accused Baldev Mahto and found lacerated wound 2’’x1/2’’x1/2’’ on right side of scalp caused by hard and blunt substance. The injury report is marked as Ext.-P16. He also examined accused namely, Ram Lakhan Mahto and found swelling on left wrist and on left upper arm 2’’x1.5’’ in circumference caused by hard and blunt substance. The injury report is marked as ExtP-17. The injury report is marked as Ext.-P16. He also examined accused namely, Ram Lakhan Mahto and found swelling on left wrist and on left upper arm 2’’x1.5’’ in circumference caused by hard and blunt substance. The injury report is marked as ExtP-17. In cross-examination he has stated that police had sent the injury slip along with the injured Baldeo Mahto and Ramlakhan Mahto. 26. It is relevant to mention here that reports of injured namely, Jagdish Dangi, Sita Devi, Satia Devi and Babulal Dangi were referred to Sadar Hospital, Hazaribag awaiting the report regarding the nature of injuries. P.W.-19 had kept his opinion reserved regarding the nature of injuries. However, no reports from Hazaribagh Hospital were produced by the prosecution. Therefore, in the absence of the reports the nature of injuries of aforesaid persons can be treated to be simple in nature. 27. P.W.-20, Abhay Shankar, is the investigating officer (I.O.) of the case. He has deposed that at 12.30 p.m. he heard a rumor that there was a marpit in village Dodi due to a land dispute. Thereafter, at about 14.45 p.m. he received information that several injured persons had come for medical treatment to Itkhori Hospital. Consequent thereto, he rushed to the hospital and recorded the ferdbeyan of the informant Sukhdeo Mahto (P.W.-16). He deposed that he visited the place of occurrence which was the land situated at Mauza-Manjhauli in Khata No-7 bearing Plot Nos.3, 4. He found the land was ploughed. The informant had disclosed to him that the occurrence took place on the said land. He has deposed that accused Baldeo Mahto and Ram Lakhan Mahto were arrested from the hospital and their medical treatment was done. In cross examination, he has stated that he had called for a report from the Circle Officer regarding the title of the disputed land but no such report was received by him. He admitted that the ownership or the title of the land was not proved before him. He has stated that the dead body of the deceased was brought by the injured to Itkhori hospital and it was incorrect to say that he had brought the dead body in the police jeep to Itkhori after visiting the village Dodi. His attention has been drawn to the statement of witnesses as recorded under Section 161 Cr.P.C. vis-à-vis their deposition in court. His attention has been drawn to the statement of witnesses as recorded under Section 161 Cr.P.C. vis-à-vis their deposition in court. He stated that that Babulal (P.W.-1) had not told him anything regarding the assault on the deceased neither had P.W.-1 made any statement before him that Chhedi had assaulted on the temple of deceased. That P.W.-1 did not state that Lakhan, Mahendra, Ramsevak and Shyamlal stomped and trampled upon the chest of deceased causing the death of Bhimal (deceased). That Sita Devi (P.W.-2) had not stated before him that accused persons were armed with farsa and Ramsevak and Chhedi assaulted on the temple of deceased with lathi. That Lekho Mahto had not made the statement that accused Shyamlal and Ramsevak had stomped and trampled the chest of the deceased. That Jagdish Mahto (P.W.-7) had not made the statement that Lakhan, Mahendra, Ramsevak and Shyamlal had stomped and trampled the body of deceased or that Basant Dangi assaulted the deceased’s wife and snatched her ear ring. He stated that Pemini Devi (P.W.-8) had not made the statement before him that Ramsevak, Mahendra and Shyamlal were the person who had killed Bhimal. He admitted that PW-9 (Satiya Devi) had named accused persons namely Prakash, Ganapat, Basant, Baldeo Ramsevak, Phenku Baleshwar Chedi, Sitaram, Jainarayan and Bhikhan. He stated that Dashrath (P.W.-11) had not made statement before him that accused persons namely Phenku, Baleshwar, Lakhan, Prakash, Sitaram, Jainarayan, Ramsevak, Shyamlal, Bhikhan, Babuni were involved in the incident. He admitted that Birendra Dangi (P.W.-13) had not stated before him that Lakhan, Mahendra, Ramsevak and Shyamlal had stomped and trampled the chest of deceased. 28. The statement under Section 313 of the Cr.P.C was recorded and all the appellants made a statement of denial with respect to the evidence led against them. The appellants stated that deceased Bhimal Mahto died on account of illness at his house. 29. Appellants have examined DW-1 who has adduced the documents with respect to the land dispute. 30. Learned counsel, for the appellants, has argued that the trial court has committed manifest error in not appreciating the fact that the witnesses examined by prosecution are highly interested witnesses as they are related to each other. Learned counsel has submitted that P.W.-4, an independent witness, has categorically stated that there was a free fight between both the parties. 30. Learned counsel, for the appellants, has argued that the trial court has committed manifest error in not appreciating the fact that the witnesses examined by prosecution are highly interested witnesses as they are related to each other. Learned counsel has submitted that P.W.-4, an independent witness, has categorically stated that there was a free fight between both the parties. It is argued that the statement of P.W.-4 shows that the appellants did not have any intention to commit murder of the deceased (Bhimal). It is contended that the court below has failed to appreciate the testimony of the witnesses as well as of the investigating officer, who have admitted that there was civil litigation going on between both the parties with respect to the land. It is argued that testimony of witnesses as well as of I.O. (Investigating officer) discloses that in the free fight members of the appellants also sustained injury, therefore, it cannot be said that the appellants were aggressors. It is argued that attention has been drawn of P.Ws with respect to the contradiction in the deposition of the witnesses vis-à-vis their statement as recorded under Section 161 Cr.P.C. That there are material contradictions in their testimony and hence, their testimony cannot be relied upon. It is argued that even if for arguments sake the prosecution story is found to be true then also it would be evident that there is material improvements in the testimony of the prosecution witnesses vis-à-vis the statement made under Section 161 Cr.P.C. In fact the prosecution witnesses have contradicted each other regarding the names of the accused who had assaulted and stomped and trampled the deceased. 31. To buttress his argument learned counsel has placed reliance on the judgment of Hon’ble Supreme Court in the case of State of U.P. Vs. Munni Ram & Ors. reported in 2011(1) East Cr.C.86 (SC). Learned counsel further submitted that in view of the material contradictions in the testimony of the witnesses, it is evident that the prosecution has not been able to bring home the charges against the appellant beyond all reasonable doubt therefore, the appellants are entitled to the benefit of doubt. On the aforesaid ground it is emphatically contended that the impugned judgment is not sustainable in law or on facts and deserves to be set aside. 32. On the aforesaid ground it is emphatically contended that the impugned judgment is not sustainable in law or on facts and deserves to be set aside. 32. Per contra, learned APP has contended that just because the witnesses are agnates or related to each other their evidence or testimony cannot be categorized as that of interested witnesses. It is argued that they are natural witness and their presence at the place of occurrence is corroborated by the injury report. That the discrepancies pointed out by the learned counsel for the appellants are not material and such discrepancies does not strike at the creditworthiness of their testimony. Learned counsel has submitted that the findings of P.W.-18, the doctor who conducted the post-mortem over the dead body corroborates the ocular testimony regarding the injuries sustained by the deceased. That P.W.-19 is the doctor who examined the injured witnesses and the injury reports have been proved and marked as Exts.- P4 to P15. The testimonies of the injured witnesses establish that the appellants were aggressors and they had committed criminal trespass on the land belonging to the informants by forming an unlawful assembly with the common object to kill the family members of the informant. It is argued that the trial court has considered and elaborately discussed the material evidence in its correct perspective. That the judgment of conviction and order of sentence is based on the evidence marshalled out during the trial and it does not require any interference by this Court. 33. We have considered the rival contentions and perused the testimony of the witnesses. It is noticed that the witnesses examined by the prosecution have admitted that civil litigation is going on between the parties with respect to the land. It is explicit from the testimony of the witnesses that the occurrence took place on account of the land dispute and the fight took place with respect to the claim of ownership over the disputed land. P.W.-4, Nand Lal Mahto, a co-villager and independent witness, has categorically deposed that in course of searching his Kara (buffalo) he had gone to the place of occurrence and saw that deceased along with his family members were ploughing the land and accused persons had come there armed with lathi. P.W.-4, Nand Lal Mahto, a co-villager and independent witness, has categorically deposed that in course of searching his Kara (buffalo) he had gone to the place of occurrence and saw that deceased along with his family members were ploughing the land and accused persons had come there armed with lathi. He has testified that he had requested both the parties to get the dispute amicably settled through the Panchayat but they did not listen and a fight had ensued between both the parties 34. Thus, the testimony of P.W.-4 discloses that the cause of the occurrence was land dispute. There was free fight between the parties. This is corroborated from the fact that the accused namely Baldev Mahto and Ram Lakhan Mahto, members of the appellant parties had sustained injuries and P.W.-19 the doctor, had found injuries on their person. The injury reports are marked as Exts.-P16, P17. P.W.-19, had opined that the injuries were caused by hard and blunt substance. It is relevant to take notice here that P.W.-20, the I.O testified that the accused Baldeo Mahto and Ram Lakhan Mahto were arrested from the hospital and were sent for treatment. No doubt the injuries sustained by prosecution witnesses were more and there was loss of life of Bhimal Mahto on the side of the informant. In this context, it is pertinent to refer to the decision rendered in the case of State of U.P. Vs. Munni Ram & Ors., reported in 2011 (1 )East Cr.C.86 (SC) wherein the Supreme Court in para-17, has observed that the defence version cannot be discarded only on the basis of lesser number of injuries having been suffered by them. 35. In the obtaining evidence, it cannot be possible to say with certainty that the accused/ appellants party were the aggressors. It is evident that origin and genesis of the occurrence appears to have been withheld by both the parties. The court below has failed to appreciate the factum of the manner in which the incident took place. As discussed, members of both the parties sustained injuries and this is indicative of the fact that a sudden and free fight took place between the parties. Therefore, even if the appellants were members of unlawful assembly then also in case of a free fight they cannot be held to be vicariously liable for the acts of other members. 36. As discussed, members of both the parties sustained injuries and this is indicative of the fact that a sudden and free fight took place between the parties. Therefore, even if the appellants were members of unlawful assembly then also in case of a free fight they cannot be held to be vicariously liable for the acts of other members. 36. At this juncture it would be fruitful to consider the principles governing constructive liability under Section 149 I.P.C. This section requires the consensus of five or more persons to do an unlawful act prohibited by Section 141 I.P.C. In order to create a liability under this section there must be proof that the accused knew that the offence committed by the member of the assembly was likely to be committed by any of them. Section 149 does not create new offence but deals with vicarious liability of the members of unlawful assembly. 37. In Munir Khan Vs. State of U.P. reported in (1970) 3 SCC 191 , the Supreme Court observed that where there is a mutual fight between the parties, the court will not be justified in convicting any of the accused by taking recourse to section 149 I.P.C. In a mutual fight there is no common object. It is well-settled that if free fight takes place between two groups, the members thereof, cannot be said to have formed an unlawful assembly within the meaning of Section 141 I.P.C. In such a case each of them would be liable for their individual acts and not for the acts of others. 38. The Supreme Court in the case of Ishwar Singh Vs. State of U.P., (1976) 4 SCC 355 has held: “Having regard to the injuries sustained by some of the prosecution witnesses and also by two of the accused, it seems that there was a free fight between the two sides. The defence version of the occurrence may not also be quite true, but considering all the circumstances we do not think it is possible to say with any certainty that the accused were the aggressors though undoubtedly the prosecution side got the worse of it after the fight was started. The defence version of the occurrence may not also be quite true, but considering all the circumstances we do not think it is possible to say with any certainty that the accused were the aggressors though undoubtedly the prosecution side got the worse of it after the fight was started. If really the accused were not the aggressors, no case either under Section 147 or Section 148 of the Penal Code can be maintained against them, and then it is for the prosecution to prove the individual assaults of which there is no evidence. The conviction of appellants Ilam Singh, Harpal, Brahm Singh and Deep Chand under Section 326, Section 324 and Section 323 of the Penal Code, founded against each of them on the basis of Section 149 of the Code, is not therefore sustainable.” 39. Similarly, in Jarnail Singh vs. State of Punjab; AIR 1982 SC 70 , the Apex Court held that since there was no pre-concert between the accused persons nor a meeting of minds between them before the offence took place, the conviction of the accused under Section 302/34 IPC was bad and since the accused merely gave a token blow on the ear and caused simple injuries, the conviction was altered to one under Section 324 IPC. 40. In the case of Vishvas Aba Kurane vs. State of Maharastra; AIR 1978 SC 414 it has been observed that in a free fight no right of private defence is available to either party and each individual is responsible for his own acts. Thus no case either under section 147 or 148 IPC can be said to has been made out against the appellants and the conviction of none of the appellants is sustainable with the aid of Section 149 IPC. 41. At this stage, it is necessary to reiterate the well settled principle that guilt of the accused is to be judged on the basis of the facts and circumstances of the particular case. The injuries found on the person of the accused assume importance in respect of genesis and manner of occurrence. Thus considering the entire gamut of the case and on meticulous examination of the material evidence on record we have no hesitation in holding that there was free fight between both the parties on account of the land dispute and in the said fight Bhimal Mahto died and other witnesses sustained injuries. Thus considering the entire gamut of the case and on meticulous examination of the material evidence on record we have no hesitation in holding that there was free fight between both the parties on account of the land dispute and in the said fight Bhimal Mahto died and other witnesses sustained injuries. 42. The question that still remains to be answered is whether it is possible to arrive at the conclusion as to what injury was caused by which accused. As noticed no reliable evidence has been broughtforth on the record as to what exactly transpired at the time of incident and who were the aggressors or who dealt the first blow. In the first paragraph of the ferdbeyan it is alleged that accused persons Ganpat Mahto, Feku Mahto, Lakhan Dangi, Sitaram Dangi, Basant Dangi, Jagnarayan Dangi, Babuni Dangi, Shyamlal Dangi, Mahendra Dangi, Bhikhan Dangi, Ram Sewak Dangi, Chhedi Dangi, Baldeo Mahto (Since dead) Tekan Mahto, Prakash Dangi assaulted Lekho Mahto, Dular Mahto, Birendra Mahto, Dassrath Mahto, Babulal Mahto, Jagdish mahto, Degan Mahto and Bhimal Mahto (deceased) with lathi stomped and trampled with the stomach of Bhimal (deceased). It is vividly clear from the said narration that there is general and omnibus allegation against all the accused persons but in the concluding paragraph of the ferdbeyan it is alleged that accused persons namely, Mahendra Dangi, Lakhan Dangi, Shyamlal Dangi and Ram Sevak Dangi (since dead) surrounded Bhimal Mahto and assaulted him by lathi and Ram Sevak Dangi gave the last lathi blow on the head of Bhimal Mahto and trampled on his stomach as a result of which Bhimal Mahto died. 43. It is noticed that P.W.-16 in the ferdbeyan and in his testimony before the court has deposed that Chhedi gave a lathi blow on the right temporal region of head of the deceased. This is not corroborated by the post-mortem report (Ext.-3) as no injury on the head of the deceased was found. It is important to mention here that this witness has nowhere stated that Ram Sevak gave the last fatal blow by lathi. This is an embellishment. PW-7 has also deposed that Chhedi had assaulted the deceased with lathi. PW-9 has deposed that Chhedi Mahto gave a lathi blow on Bhimal, thereafter Ramsevak, Lakhan, and Shyamlal had stomped and trampled Bhimal (deceased). This is an embellishment. PW-7 has also deposed that Chhedi had assaulted the deceased with lathi. PW-9 has deposed that Chhedi Mahto gave a lathi blow on Bhimal, thereafter Ramsevak, Lakhan, and Shyamlal had stomped and trampled Bhimal (deceased). It is evident that he has not taken the name of Mahendra Dangi, as the person who stomped and trampled the chest of the deceased. P.W.-13 has deposed that Chhedi assaulted Bhimal with lathi and iron rod. 44. On analysis of the testimony it is apparent that there is improvement in the examination-in-chief of the witnesses vis-à-vis the narration in the ferdbeyan. P.W.-16 has deposed that all accused persons assaulted Bhimal and accused Chhedi gave a lathi blow as a result of which, the deceased fell down whereafter accused persons namely Shyamlal and Mahendra stomped and trampled his chest causing the death of Bhimal. P.W.-2 has taken the name of Chhedi Mahto and Ramsevak Mahto as the persons who assaulted the deceased with lathi on the head of the deceased. However, P.W.-1 has taken the name of Chhedi Mahto as the person who assaulted the deceased. PW-2 has mentioned the name of Shyamlal, Mahendra, Ramsevak and Chhedi as the person who trampled on the chest of the deceased, however she has not taken the name of Lakhan but in the ferdbeyan the name of Shyamlal, Mahendra, Ramsevak and Lakhan has been mentioned as the persons who trampled the chest of the deceased. In fact discrepancies are apparent in the testimony of these witnesses and attention of P.W.-20, the investigating officer, has been drawn by the defence with respect to the contradictions in the statement made by the witnesses under Section 161 Cr.P.C vis-à-vis their deposition in the court. 45. P.W.-7 has named 10 accused, P.W.-8 has name 11 accused, P.W.-12 named 13 accused, P.W.-14 named 10 accused and P.W.-17 named only 3 accused. It is relevant to note here that almost all witnesses have stated that accused persons were armed with farsa but the doctor, P.W.-18 in the post-mortem did not find any sharp cut injuries on the body of the deceased. Consequently on the basis of the ocular and medical evidence the inference and presumption can be drawn that accused person did not have the intention to commit murder. 46. Consequently on the basis of the ocular and medical evidence the inference and presumption can be drawn that accused person did not have the intention to commit murder. 46. As noticed the prosecution witnesses have been inconsistent in their deposition however, the witnesses are injured persons hence their presence at the place of occurrence cannot be doubted, but that does not necessarily mean that they have actually given a true version regarding the genesis of the occurrence. It is noticeable that although P.Ws.-10, 11 and 17 are injured eye witnesses but in their deposition they have not disclosed the details of the occurrence and manner and mode of assault. 47. It is well settled legal proposition that while appreciating the evidence; the court has to take into consideration whether the contradictions/omissions were of such magnitude so as to materially affect the prosecution case. Where the omission(s) amount to a contradiction, creating a serious doubt regarding the truthfulness of a witness, and the other witnesses also make material improvements before the court in order to make the evidence acceptable, it would not be safe to rely upon such evidence. The discrepancies in the evidence of eyewitnesses, if found not to be minor in nature, may be a ground for disbelieving and discrediting their evidence. In such circumstances, the witnesses may not inspire confidence and if their evidence is found to be in conflict and contradiction with the other evidence available or with a statement that has already been recorded, then in such a case, it cannot be held that the prosecution has proved its case beyond reasonable doubt. 48. In order to adjudge as to who was responsible for the fatal injury we have to look at the testimony of Dr. Satyendra Kumar Choudhary (P.W.-18), who performed autopsy on the dead body, we notice that death of Bhimal was caused as a result of hemorrhage and shock. P.W.-18 found fracture of VIII, IX, X, XI ribs on the right side cage causing puncture in the lung. In cross-examination he stated that he did not find any external bleeding. He further stated that in the simple fracture bone is not exposed to air but in compound fracture it is exposed to the air. He specifically stated that in this case the fractures of ribs were not exposed to the air. In cross-examination he stated that he did not find any external bleeding. He further stated that in the simple fracture bone is not exposed to air but in compound fracture it is exposed to the air. He specifically stated that in this case the fractures of ribs were not exposed to the air. As per ocular testimony, however, the injuries on body of deceased were jointly attributed to the appellants, but the prosecution witnesses have not been able to testify as to which individual caused the fatal injuries. 49. In the case of Amrik Singh Vs. State of Punjab; 1993 Cr.L.J. 2857, the Hon’ble Apex Court has observed that where the injury which proved to be fatal was not attributed to any one of the accused, the accused who inflicted one injury on the head of the deceased was not responsible for other fatal injury. In that case accused Kewal Singh struck a gandasa blow from the sharp side on the head of Amarjeet Singh (deceased). Autopsy Surgeon found a lacerated wound on the scalp and incised wound on the front area of the head. He opined that the injuries were sufficient in the ordinary course of nature to cause death. The High Court held that Kewal Singh could not be held responsible for the other injury which was inflicted with blunt weapon and which proved to be fatal, therefore, Kewal Singh was convicted under Section 326 IPC. Having regard to the situation in which free fight is said to have taken place he was sentenced to suffer rigorous imprisonment for seven years. The Apex Court confirmed the view of High Court but reduced the sentence from seven years to three years rigorous imprisonment. 50. From the discussion made here in above, it is apparent that in case of a free fight an offender can be made liable for his own act and not vicariously liable for the acts of others. In the case at hand there is no material to indicate that appellants/accused shared the common object of committing death of deceased. At the same time it cannot be ruled out that the appellant Mahendra Dangi, Lakhan Dangi and Shyamlal Dangi were not having the knowledge that their act of stomping and trampling on stomach of the deceased would result in his death. 51. At the same time it cannot be ruled out that the appellant Mahendra Dangi, Lakhan Dangi and Shyamlal Dangi were not having the knowledge that their act of stomping and trampling on stomach of the deceased would result in his death. 51. It is alleged in FIR, accused/ appellants Mahendra Dangi, Lakhan Dangi, Shyamlal Dangi and Ram Sevak Dangi surrounded and assaulted Bhimal Mahto with lathi. Ram Sevak Dangi gave the last lathi blow on the head of Bhimal and trampled the stomach of Bhimal Mahto with his feet due to which Bhimal Mahto died. As stated above, as per Post-mortem Report no injury by blunt weapon was found on the head of the deceased. From discussion made herein above, it would be evident that the prosecution witnesses have made material improvements in their testimony vis-à-vis the statement made under Section 161 Cr.P.C. In fact there is discrepancy in the testimony of the witnesses regarding the names of the accused who had assaulted the deceased and trampled the deceased. 52. Thus on evaluation of the testimony of the witnesses and the evidence we hold the appellants Mahendra Dangi, Lakhan Dangi, Shyamlal Dangi guilty for the offence under Section 304 Part II of the I.P.C. 53. From the injury report (Ext.-P9) of Birendra Kumar Dangi (P.W.-13) it appears that the injury found upon on this injured witness is grievous in nature caused by hard blunt substance. He has testified that Ramsevak Dangi (since dead) and Mahendra Dangi had assaulted him. The injury on Lekha Mahto (P.W.-6) caused by hard and blunt substance was also found to be grievous in nature which was authored by Baldev Dangi (since dead). As per the injury report of other injured witnesses, injuries sustained by them were simple in nature. Therefore in such circumstances we hold the appellants guilty for the offence under section 323 of IPC. 54. The appellants are convicted for the offences caused by them as per the individual acts as indicated hereinabove. Consequently, the judgment passed by the court below is modified and this Court, hereby, finds appellants Mahendra Dangi, Lakhan Dangi, Shyamlal Dangi guilty for the offence under Section 304 Part II I.P.C and sentence them to undergo rigorous imprisonment for nine years and fine of Rs.5000/- in default thereof to further suffer rigorous imprisonment of six months. Consequently, the judgment passed by the court below is modified and this Court, hereby, finds appellants Mahendra Dangi, Lakhan Dangi, Shyamlal Dangi guilty for the offence under Section 304 Part II I.P.C and sentence them to undergo rigorous imprisonment for nine years and fine of Rs.5000/- in default thereof to further suffer rigorous imprisonment of six months. It transpires from the record that appellants Lakhan Dangi and Shyamlal Dangi have remained in jail for a period of more than nine years and appellant Mahendra Dangi, is in custody for nearly eleven years. The appellants Mahendra Dangi, Lakhan Dangi, and Shyamlal Dangi, are sentenced for the period already undergone by them and appellant Mahendra Dangi is directed to be released from the jail custory if not wanted in any other case. 55. Appellants namely, Sitaram Dangi, Basant Dangi, Feku Dangi, Jagnarayan Dangi, Prakash Dangi, Tekan Mahto, Bhikhan Dangi, Chhedi Dangi and Babuni Dangi, are convicted for the offence under Section 323 I.P.C and sentenced to undergo rigorous imprisonment for six months and a fine of Rs.500/- in default thereof to further undergo rigorous imprisonment of one month. Since the appellants have remained in custody for a period of more than seven months, therefore, they are sentenced for the period already undergone by them. 56. The witnesses including the informant have testified that Sitaram Dangi and Basant Dangi had snatched the gold ear rings and silver necklace of Sita Devi and Kamli Devi. The conviction of the accused persons namely, Sitaram Dangi and Basant Dangi for the offence under Section 379 I.P.C requires no interference. However, considering the fact that the accused persons have faced the rigours of trial for nearly 15 years, the sentence of 3 years awarded by the trial court is, hereby, modified and accused persons namely, Sitaram Dangi and Basant Dangi are sentenced to the period of imprisonment already undergone by them. 57. In view of the discussions made, hereinabove, the judgment of conviction and order of sentence of the appellants for the offence under Sections 302/ 149 of the I.P.C. are, hereby, set aside. Accordingly the judgment dated 03.03.2008 and order of sentence dated 10.03.2008 of the 1st Additional Sessions Judge, Chatra in S.T No.172 of 2001, are modified to the extent as discussed above and the appellants are sentenced for the period as stated in paras – 54, 55 and 56 hereinabove. 58. Accordingly the judgment dated 03.03.2008 and order of sentence dated 10.03.2008 of the 1st Additional Sessions Judge, Chatra in S.T No.172 of 2001, are modified to the extent as discussed above and the appellants are sentenced for the period as stated in paras – 54, 55 and 56 hereinabove. 58. The appeals are hereby dismissed with the modification of the judgment of conviction and order of sentence to the extent as indicated above.