ORDER : Shree Chandrashekhar, J. These appeals; Cr. Appeal (DB) No. 1327 of 2016 by Moti Ram Bodara, Cr. Appeal (DB) No. 124 of 2017 by Dulmu Tiu and Cr. Appeal (DB) No. 336 of 2018 by Bikram Samad, have been filed by them challenging the judgment of conviction dated 22.09.2016 and the order of sentence of RI for life and fine of Rs. 10,000/- each under section 302/149 of the Indian Penal Code passed in S.T. No. 38 of 2009. 2. On the basis of fardbeyan of Sona Muni Tiu which was recorded on 29.08.2008 at about 9:00 a.m. at village Kheria Sindhari, Manjhari ( Tant Nagar ) P.S. Case No. 28 of 2008 has been registered against Dulmu Tiu, Bikram Samad, Selai Purti @ Deda Purti, Moti Ram Bodara and Patru Tiu for committing murder of Rai Muni Kui and Sumitra Biruli. 3. The appellants have faced the trial on the charge under section 302/ 149 of the Indian Penal Code. During the trial, the prosecution has examined eight witnesses; the informant is PW-2. 4. The prosecution has projected PW-2 and PW-3 as eye-witnesses. PW-1, PW-4, PW-5 and PW-6 who are the co-villagers have been declared hostile at the instance of the prosecution and Dr. Ramji Bhagat who has been examined as PW-7 has prepared the autopsy report of Rai Muni Kui and Sumitra Biruli. 5. We find that evidence of PW-2 and PW-3 has been sufficiently corroborated by the other evidences. PW-1 has stated that on the next day of the occurrence Dashrathi Tiu has informed him about murder of Rai Muni Kui and Sumitra Biruli. He has seen their dead bodies and a bhujali lying there. He is the person who has informed the police about the occurrence. He has identified his signature on the fardbeyan. However, on the point whether he has seen the accused persons fleeing away from the house of Rai Muni Kui he has been declared hostile. PW-4, PW-5 and PW-6 have also seen the dead bodies of Rai Muni Kui and Sumitra Biruli. 6. It is now well-settled that testimony of a hostile witness is not rejected altogether rather the prosecution can use that part of the testimony of a hostile witness which supports its case to corroborate testimony of other witnesses. PW-4, PW-5 and PW-6 have also seen the dead bodies of Rai Muni Kui and Sumitra Biruli. 6. It is now well-settled that testimony of a hostile witness is not rejected altogether rather the prosecution can use that part of the testimony of a hostile witness which supports its case to corroborate testimony of other witnesses. In “Lahu Kamlakar Patil v. State of Maharashtra” reported in (2013) 6 SCC 417 , Hon’ble Supreme Court has observed thus: “15. It is settled in law that the evidence of a hostile witness is not to be rejected in toto. In Rameshbhai Mohanbhai Koli v. State of Gujarat, reiterating the principle, this Court has stated thus: (SCC p. 117, paras 16-17) “16. It is settled legal proposition that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on a careful scrutiny thereof. (Vide Bhagwan Singh v. State of Haryana, Rabindra Kumar Dey v. State of Orissa, Syad Akbar v. State of Karnataka and Khujji v. State of M.P.) 17. In State of U.P. v. Ramesh Prasad Misra this Court held that evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon. A similar view has been reiterated by this Court in Balu Sonba Shinde v. State of Maharashtra, Gagan Kanojia v. State of Punjab, Radha Mohan Singh v. State of U.P., Sarvesh Narain Shukla v. Daroga Singh and Subbu Singh v. State.” 16. Recently, in Bhajju v. State of M.P., a two-Judge Bench, in the context of consideration of the version of a hostile witness, has expressed thus: (SCC p. 341, para 35) “35. … Normally, when a witness deposes contrary to the stand of the prosecution and his own statement recorded under Section 161 CrPC, the prosecutor, with the permission of the court, can pray to the court for declaring that witness hostile and for granting leave to cross-examine the said witness. … Normally, when a witness deposes contrary to the stand of the prosecution and his own statement recorded under Section 161 CrPC, the prosecutor, with the permission of the court, can pray to the court for declaring that witness hostile and for granting leave to cross-examine the said witness. If such a permission is granted by the court then the witness is subjected to cross-examination by the prosecutor as well as an opportunity is provided to the defence to cross-examine such witnesses, if he so desires. In other words, there is a limited examination-in-chief, cross-examination by the prosecutor and cross-examination by the counsel for the accused. It is admissible to use the examination-in-chief as well as the cross-examination of the said witness insofar as it supports the case of the prosecution.” 7. The informant who is PW-2 is an eye-witness. PW-3 is her sister-in-law. She is also an eye-witness. In the evening of 28.08.2008 they were at home. They have claimed that they have seen the accused persons armed with Bhujali entering their house and assaulting Rai Muni Kui and when Sumitra Biruli tried to intervene she was also assaulted by them. During their cross-examination, PW-2 and PW-3 have remained unshaken; nothing material could be elicited by the defence from them. May be on the manner of assault by the appellants there is minor inconsistency in their testimony, but they have remained firm on participation of the appellants in the occurrence. Through PW-2 and PW-3 the prosecution has established presence of the appellants at the place of the occurrence and at the time of the occurrence. Their evidence is corroborated to some extent by PW-4, PW-5 and PW-6. The injuries found on Rai Muni Kui and Sumitra Biruli prove that they have suffered injuries by sharp-cutting weapon. According to the doctor who has conducted the post-mortem examination injuries to both of them may be caused by Bhujali and Dabia. The doctor has found rigor mortis present in upper as well as lower limbs and the time elapsed since death was 6 to 36 hrs. 8. The fardbeyan of the informant has been recorded within 12 hrs. of the occurrence and a First Information Report has been lodged next day of the occurrence and the post-mortem examination was also conducted on 29.08.2008. 8. The fardbeyan of the informant has been recorded within 12 hrs. of the occurrence and a First Information Report has been lodged next day of the occurrence and the post-mortem examination was also conducted on 29.08.2008. These records which were prepared within a short span of time would eliminate false implication of the appellants in the occurrence. 9. Now, the question is whether the appellants have been rightly convicted under section 302/149 of the Indian Penal Code. 10. Dr. Ramji Bhagat who has conducted the post-mortem examination has found the following injuries on Rai Muni Kui: “(i) Incised wound over neck anterioraly midway 6”x 3” x 4” cutting all vessels. Muscles, wind pipe, food pipe and cervical IIIrd and IV vertebrae attached posteriorly with muscle and skin. (ii) Incised wound over left cheek 3” x 1” x deep to vuccal cavity. (iii) Incised wound over right shoulder 3” x 1” x muscle deep.” 11. On the same day, the doctor has conducted the post-mortem examination on the dead body of Sumitra Biruli and found one incised wound on her neck, size 6”x4”x4”. All the vessels, muscles, wind pipe, food pipe and cervical IIIrd & IVth vertebrae were completely severed. 12. From the medical evidence, we find one incised wound on the neck of Sumitra Biruli and Rai Muni Kui; injury no. 1 was an incised wound over the neck of Rai Muni Kui. But there is considerable doubt on the role played by the appellants in the occurrence. There is serious controversy as to who has inflicted the neck blow on Rai Muni Kui and Sumitra Biruli. There were five accused persons and the prosecution has failed to establish who amongst the appellants has inflicted which particular injury on Rai Muni Kui and Sumitra Biruli. 13. In her fardbeyan PW-2 has claimed that Dulmu Tiu has inflicted neck blow on Rai Muni Kui but in the court she has deposed that the accused persons armed with Bhujali forced enter her house and started assaulting her mother-in-law. In paragraph No.2 of her examination-in-chief she has stated that Selai Purti has caught hold of her mother-in-law and other accused persons have started assaulting her, but at the same time in paragraph no. 13 of her cross-examination she has stated that Selai Purti caught hold of her mother-in-law and Dulmu Tiu has killed her with Bhujali. In paragraph No.2 of her examination-in-chief she has stated that Selai Purti has caught hold of her mother-in-law and other accused persons have started assaulting her, but at the same time in paragraph no. 13 of her cross-examination she has stated that Selai Purti caught hold of her mother-in-law and Dulmu Tiu has killed her with Bhujali. PW-3 who is the daughter of Rai Muni Kui has deposed in the court that the accused persons caught hold of her mother and thrashed her on the cot and on exhortation of Selai Purty four of them caught hold of her neck and Dulmu Tiu gave one Bhujali blow on her neck. 14. In the second stage of the occurrence the appellants have assaulted Sumitra Biruli. It is the prosecution’s case as spoken by the informant in her fardbeyan that when Sumitra Biruli tried to intervene, Bikram Samad caught hold of her and Moti Ram Bodara and Patru Tiu thrashed her on the ground and thereafter Bikram Samad assaulted her with Dabia on her neck. But in the court she has deposed that Moti Ram Bodara and Bikram Samad have severed her neck. PW-3 has spoken about Bikram Samad only and she has not imputed any overt-act by other accused persons in assaulting Sumitra Biruli. It is also important to mention here that the informant has admitted in her cross-examination that she cannot say who amongst the accused persons has inflicted how many injuries and she has not counted the number of injuries inflicted by them and PW-3 has stated that it was a dark night and there is no electricity in the village. It has come in the prosecution’s evidence that the appellants were nurturing a doubt that Rai Muni Kui was practicing witchcraft on Tun Muni Tiu due to which she was ill for the last 6-7 years. It is also relevant that at the time when the appellants have assaulted Rai Muni Kui, they had no intention to assault Sumitra Biruli and only when she tried to intervene she was assaulted by one of the appellants. On such evidence it is not possible to hold who amongst the appellants has inflicted neck blow on Rai Muni Kui and Sumitra Biruli. The doctor has rendered an opinion that the injuries found on Rai Muni Kui were sufficient to cause death, but then, he has not specified that the injury no. On such evidence it is not possible to hold who amongst the appellants has inflicted neck blow on Rai Muni Kui and Sumitra Biruli. The doctor has rendered an opinion that the injuries found on Rai Muni Kui were sufficient to cause death, but then, he has not specified that the injury no. 1 which is the neck injury on Rai Muni Kui was sufficient to cause death in the ordinary course. 15. In the aforesaid state of evidence, we find that all that the prosecution has been able to establish is that the appellants who were carrying Bhujali and Dabi intended to assault Rai Muni Kui and in the occurrence Sumitra Biruli was also assaulted by one of the appellants. 16. Section 149 of the Indian Penal Code incorporates joint liability of all [refer, “Joseph Vs. State Rep. by Inspector of Police” AIR 2018 SC 93 ]. In the present case the prosecution has failed to establish that death of Rai Muni Kui and Sumitra Biruli has been caused in furtherance of common object of the unlawful assembly or that the appellants knew that death of Rai Muni Kui and Sumitra Biruli would be caused in furtherance of common object. 17. From the aforesaid evidence and the manner of occurrence as spoken by PW-2 and PW-3, we find that the prosecution has failed to establish the charge under section 302/149 of the Indian Penal Code and, accordingly, conviction of the appellants for the said offence is set aside. The appellants who were carrying dangerous sharp-cutting weapon have intentionally caused such grievous injuries to Rai Muni Kui and Sumitra Biruli which were likely to cause death and, therefore, they are liable to be convicted under section 326 of the Indian Penal Code [refer, “Vijay Singh and another Vs. State of Madhya Pradesh” reported in (2014) 12 SCC 293 ; “Rama Meru and another Vs. State of Gujarat” reported in 1993 Supp(1) SCC 315 and “Hammu and others Vs. State of Madhya Pradesh” reported in AIR 1979 SC 1755 ]. 18. Accordingly, the judgment of conviction of the appellants, namely, Moti Ram Bodara in Cr. Appeal (D.B.) No. 1327 of 2016; Dulmu Tiu in Cr. Appeal (D.B.) No. 124 of 2017 and Bikram Samad in Cr. State of Madhya Pradesh” reported in AIR 1979 SC 1755 ]. 18. Accordingly, the judgment of conviction of the appellants, namely, Moti Ram Bodara in Cr. Appeal (D.B.) No. 1327 of 2016; Dulmu Tiu in Cr. Appeal (D.B.) No. 124 of 2017 and Bikram Samad in Cr. Appeal (D.B.) No. 336 of 2018 under section 302/149 of the Indian Penal Code dated 22.09.2016 and the order of sentence of imprisonment for life and fine of Rs.10000/- for the offence under section 302/149 of the Indian Penal Code dated 24.09.2016 passed by the learned Additional Sessions Judge-III, West Singhbhum, Chaibasa in Sessions Trial No. 38 of 2009 are set-aside. 19. The appellants, named-above, are convicted and sentenced to RI for ten years under section 326 read with 149 of the Indian Penal Code. 20. Mrs. Priya Shrestha, the learned APP in Cr. Appeal (D.B.) No. 1327 of 2016; Mrs. Nehala Sharmin, the learned APP in Cr. Appeal (D.B.) No. 124 of 2017 and Mr. S.K. Srivastava, the learned APP in Cr. Appeal (D.B.) No. 336 of 2018 state that the appellants have remained in custody for more than eleven years. 21. Accordingly, the appellants, namely, Moti Ram Bodara in Cr. Appeal (D.B.) No. 1327 of 2016, Dulmu Tiu in Cr. Appeal (D.B.) No. 124 of 2017 and Bikram Samad in Cr. Appeal (D.B.) No. 336 of 2018, shall be set free forthwith, if not required in connection to any other criminal case. 22. In the result, Cr. Appeal (D.B.) No. 1327 of 2016, Cr. Appeal (D.B.) No. 124 of 2017 and Cr. Appeal (D.B.) No. 336 of 2018 are partly allowed, in the above terms. 23. We appreciate the able assistance rendered by Mr. Samavesh Bhanj Deo and Mr. Vikash Kumar, the learned Amici. They shall be paid fee and reimbursed for the expenses incurred by them. 24. Let lower court records be transmitted to the court concerned, forthwith.