JUDGMENT : Shree Chandrashekhar, J. Fuchana Gosai @ Fulchand Gosai, who is the appellant in Criminal Appeal (D.B.) No. 839 of 2012 and Baijnath Gosai, who has filed Criminal Appeal (D.B.) No. 808 of 2012, have challenged the judgment of conviction and the order or sentence both dated 02.07.2012, passed in Sessions Trial No. 84 of 2004. 2. The appellants have been convicted and sentenced to R.I for life and fine of Rs.1,000/- each under section 302/149, IPC for committing murder of Chamru Gosai, R.I for one year and fine of Rs.1,000/- each under section 324/149, IPC for voluntarily causing hurt to Fulchand Gosai by dangerous weapons and R.I for five years and fine of Rs.1,000/- each under section 452/149, IPC for committing house-trespass after preparation for causing hurt to the prosecution witnesses. 3. Gumla P.S. Case No. 262 of 2003 was lodged on 14.12.2003 against Parmeshwar Gosai @ Meso, Baijnath Gosai, Bhaura Gosai, Durgesh Gosai, Sudeshwari Gosai and Fuchana Gosai under sections 147, 148, 149, 452, 341, 323, 324, 307 and 302 IPC. After the investigation a charge-sheet was submitted against them and cognizance of the aforesaid offences was taken by the Court on 24.03.2004. However, charges were framed only against Parmeshwar Gosai, Baijnath Gosai, Sudeshwari Gosai and Fuchana Gosai under section 302, 307, 452 read with section 149, IPC. A separate charge under section 148 IPC was also framed against them vide order dated 06.07.2004. 4. The case of the prosecution is that in the night of 13.12.2003, at about 8:00 p.m., Chamru Gosai and his family had retired to bed. The accused persons barged entered the house and caught hold of Chamru Gosai, dragged him outside the house and started assaulting him with baluwa, bhujali and lathi. Fulchand Gosai and his wife who had tried to intervene were also assaulted by them. There was a land dispute between the agnates, particularly with Fuchana Gosai @ Fulchand Gosai and that is said to be the reason for the occurrence. During the trial the prosecution has examined ten witnesses out of whom P.W. 3, a co-villager, has been declared hostile and P.W. 4, another co-villager, has not supported the prosecution; they are inquest witnesses. 5. P.W. 5, Dr. During the trial the prosecution has examined ten witnesses out of whom P.W. 3, a co-villager, has been declared hostile and P.W. 4, another co-villager, has not supported the prosecution; they are inquest witnesses. 5. P.W. 5, Dr. Ajit Kumar Agrawal has conducted the post-mortem examination on 15.05.2003 at 9:00 a.m. and found one incised wound of about "8 inches x 1-1/2 inches x 2 inches" in size over left parietal region of the skull and one incised wound of the size of "1 inch x 1/2 inch x 1/4 inch", muscle deep in the middle portion of the forehead. The injuries were found ante-mortem in nature and caused by sharp-cutting weapon. In the estimation of P.W. 5 the time elapsed since death was between 24-36 hrs. 6. Chamru Gosai has died in the occurrence is not disputed by the defence, though the manner of occurrence has been disputed by the accused persons. 7. P.W. 5 has also examined Fulchand Gosai on 14.05.2003 at 11:45 a.m. and found the following injuries on him : "I. One lacerated wound of about 1" x 1/4" x scalp deep obliquely placed over right side of vertex (head) X-ray skull aps and lateral view shows no bony injuries. II. Swelling of nose with bleeding from the nose without bony tenderness. III. One linear abrasion reddish in colour over forehead with slight crust. IV. One incised wound of 1" x 1/4" x muscle over right index finger in middle falings. V. One incised wound of about 1/4" x 1/4" x muscle deep over right middle finger in middle portion. VI. One incised wound of 1/4" x 1/4" x muscle deep over right ring finger over middle falings. VII. One incised wound of about 1" x 1/4" x muscle deep, 1/4" x 1/4" x muscle deep and 3/4" x 1/4" x muscle deep over left index finger, middle finger and ring finger on middle faling respectively. VIII. One reddish abrasion 1/2" x 1/2" with slight, rust over right of ankle. IX. Complaint of chest pain X-ray chest shows no bony injuries." 8. P.W. 1 is wife of the deceased; P.W. 2 and P.W. 6 are daughters of the deceased; P.W.8 and P.W. 9 are sons of the deceased and P.W. 7 is his daughter-in-law. VIII. One reddish abrasion 1/2" x 1/2" with slight, rust over right of ankle. IX. Complaint of chest pain X-ray chest shows no bony injuries." 8. P.W. 1 is wife of the deceased; P.W. 2 and P.W. 6 are daughters of the deceased; P.W.8 and P.W. 9 are sons of the deceased and P.W. 7 is his daughter-in-law. They are intimately related to Chamru Gosai, the deceased and therefore the defence has challenged veracity of their evidence on the ground of their being an interested witness. There is no universal rule that testimony of a related or an interested witness should be discarded for the reason that the witness 'may be' inimically disposed towards the accused and if there is no reason to discard his testimony the Court can safely act on such evidence. However, such evidence is required to be scrutinized with a greater degree if care and caution, as indicated by the Hon'ble Supreme Court in "Raju vs. State of T.N." reported in (2012) 12 SCC 701 . 9. P.W. 9, the informant has narrated the incident in the night of 13.12.2003 largely reiterating his fard-beyan which was recorded by police at 12:30 p.m. on 14.12.2003. He has stated that he was at home and at about 8:00 p.m. in the night his father, mother, both sisters, brother and wife had gone to bed, after taking meal. The accused persons broke open the door and entered his house. They took him and his father outside and started assaulting them with baluwa, bhujali, axe and lathi. To save his father he grabbed bhujali due to which he suffered injury on his fingers and when his wife tried to intervene she was also assaulted by lathi. Next day he was taken to Sadar Hospital, Gumla where his fard-beyan was recorded by police. P.W. 1, Parvati Devi has deposed in the Court that in the night of 13.12.2003 Parmeshwar Gosai, Baijnath Gosai, Bhaura Gosai, Durgesh Gosai, Sudeshwari Gosai and Fuchana Gosai entered the house the dragged her husband and son outside and started assaulting them. At that time Parmeshwar was holding a baluwa, Sudeshwari a bhujali, Fuchana an axe, and Baijnath, Bhaura and Durgesh were carrying lathi. She has further stated that her son and daughter-in-law were also assaulted by the accused persons. In the incident her husband has died and her son Fulchand Gosai was seriously injured. At that time Parmeshwar was holding a baluwa, Sudeshwari a bhujali, Fuchana an axe, and Baijnath, Bhaura and Durgesh were carrying lathi. She has further stated that her son and daughter-in-law were also assaulted by the accused persons. In the incident her husband has died and her son Fulchand Gosai was seriously injured. She has further stated that her son was taken to hospital for treatment; police visited the place of occurrence; prepared seizure-list over which she put her thumb impression and; collected the blood-stained soil. P.W. 2 and P.W. 6 who are daughters of the deceased have spoken about assault by the above-named accused persons on their father, brother and Deoki Devi, sister-in-law. P.W. 7, Deoki Devi has also narrated a similar story about the occurrence and P.W. 8 who was at home in the night of 13.12.2003 has also deposed in the Court on similar lines. During their cross-examination, these witnessed have remained unshaken on the point of assault upon Chamru Gosai and Fulchand Gosai and nothing material could be elicited from them by the defence which would have challenged their presence in the house at the time of occurrence. 10. The learned Sessions Judge has recorded a finding that no specific suggestion doubting their presence at the time of occurrence was put to them in their cross-examination. We are also of the view that the prosecution has laid sufficient evidence to establish their presence at the time of occurrence and the place of occurrence. They are reliable and trustworthy witnesses and minor discrepancy in their testimony has not affected their credibility. They have consistently spoken about presence of these appellants along with other accused persons in their house and assault upon Chamru Gosai and Fulchand Gosai. 11. However, in our opinion, their conviction under section 302/149, IPC was not proper. 12. In the first place, the investigating officer was not examined during the trial. In paragraph no. 18 of judgment the learned Sessions Judge has recorded a finding that on account of non-examination of the investigating officer though the prosecution witnesses were confronted with their previous statements recorded during the investigation, the defence was handicapped in proving contradiction during the trial. In the first place, the investigating officer was not examined during the trial. In paragraph no. 18 of judgment the learned Sessions Judge has recorded a finding that on account of non-examination of the investigating officer though the prosecution witnesses were confronted with their previous statements recorded during the investigation, the defence was handicapped in proving contradiction during the trial. From their testimony, we find that P.W. 1, P.W. 2, P.W. 7, P.W. 8 and P.W. 9 were specifically confronted by the defence with their previous statements, however, in their cross-examination they have denied to have made such statements. In every case, as observed by the Hon'ble Supreme Court in "Behari Prasad vs. State of Bihar" reported in (1996) 2 SCC 317 , non-examination of the investigating officer may not cause prejudice to the accused and no universal straight-jacket formula should be laid down that non-examination of the investigating officer per se vitiates a trial, however, in a case like the present one in which; the manner of occurrence is under serious challenge; a counter-case has been filed by one of the accused person; the accused persons are neighbours of the deceased but the weapon of assault was not seized by the police and; according to the defence the prosecution witnesses have substantially improved narration of the incident when they were examined in the Court, non-examination of the investigating officer has definitely caused prejudice to the appellants. 13. Six accused persons are said to have forcibly entered the house of Chamru Gosai. They were armed with bhujali, baluwa, axe and lathi and according to the prosecution they all have assaulted him. However, P.W. 5 has found only two incised injuries on Chamru Gosai; one of left side parietal region of the skull and another in the middle of the forehead. He has stated that these injuries could have been caused by baluwa or bhujali. But, who has inflicted injury on the parietal region of the skull and who has assaulted Chamru Gosai on forehead cannot be ascertained with certainly from the evidence of the prosecution witnesses. He has stated that these injuries could have been caused by baluwa or bhujali. But, who has inflicted injury on the parietal region of the skull and who has assaulted Chamru Gosai on forehead cannot be ascertained with certainly from the evidence of the prosecution witnesses. P.W. 1 and P.W. 2 both have stated that Fulchand Gosai was holding a tangi, Parmeshwar Gosai a baluwa and Sudeshwari Gosai was carrying a bhujali and other three accused persons were carrrying lathi, but, P.W. 1 has made a specific allegation that first of all Sudeshwari Gosai has assaulted Chamru Gosai with bhujali and from the evidence of P.W. 2 it can be gathered that it was Parmeshwar Gosai who has first assaulted Chamru Gosai with baluwa and P.W. 6, P.W. 7, P.W. 8 and P.W. 9 are not sure who was the first amongst the accused persons to hit Chamru Gosai. It this state of evidence, it is difficult to gather that common object of the assembly of accused persons was to commit murder. In "Joseph vs. State" reported in (2018) 12 SCC 283 , the Hon'ble Supreme Court has observed that : "11.3 What is important in each case is to find out if the offence was committed to accomplish the common object of the assembly or was the one which the members knew to be likely to be committed. Once the Court finds that the ingredients of Section 149 IPC are fulfilled, every person who at the time of committing that offence was a member of the assembly has to be held guilty of that offence. After such a finding, it would not be open to the Court to see as to who actually did the offensive act nor would it be open to the Court to require the prosecution to prove which of the members did which of the above two ingredients. Before recording the conviction under Section 149 IPC, the essential ingredients of Section 141 IPC must be established." 14. In "Rajendra Shantaram Todankar v. State of Maharashtra" reported in (2003) 2 SCC 257 , the Hon'ble Supreme Court has made the following significant observations on applicability of section 149, IPC : "14. Before recording the conviction under Section 149 IPC, the essential ingredients of Section 141 IPC must be established." 14. In "Rajendra Shantaram Todankar v. State of Maharashtra" reported in (2003) 2 SCC 257 , the Hon'ble Supreme Court has made the following significant observations on applicability of section 149, IPC : "14. Section 149 of the Penal Code, 1860 provides that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who at the time of the committing of that offence, is a member of the same assembly is guilty of that offence. The two clauses of Section 149 vary in degree of certainty. The first clause contemplates the commission of an offence by any member of an unlawful assembly which can be held to have been committed in prosecution of the common object of the assembly. The second clause embraces within its fold the commission of an act which may not necessarily be the common object of the assembly nevertheless, the members of the assembly and knowledge of likelihood of the commission of that offence in prosecution of the common object. The common object may be commission of one offence while there may be likelihood of the commission of yet another offence, the knowledge whereof is capable of being safely attributable to the members of the unlawful assembly. In either case, every member of the assembly would be vicariously liable for the offence actually committed by any other member of the assembly. A mere possibility of the commission of the offence would not necessarily enable the court to draw an inference that the likelihood of commission of such offence was within the knowledge of every member of the unlawful assembly. It is difficult indeed, thought not impossible, to collect direct evidence of such knowledge. An inference may be drawn from circumstances such as the background of the incident, the motive, the nature of the assembly, the nature of the arms carried by the members of the assembly, their common object and the behaviour of the members soon before, at or after the actual commission of the crime. An inference may be drawn from circumstances such as the background of the incident, the motive, the nature of the assembly, the nature of the arms carried by the members of the assembly, their common object and the behaviour of the members soon before, at or after the actual commission of the crime. Unless the applicability of Section 149 - either clause - is attracted and the court is convinced, on facts and in law, both, of liability capable of being fastened vicariously by reference to either clause of Section 149 IPC, merely because a criminal act was committed by a member of the assembly every other member thereof would not necessarily become liable for such criminal act. The inference as to likelihood of the commission of the given criminal act must be capable of being held to be within the knowledge of another member of the assembly who is sought to be held vicariously liable for the said criminal act." 15. Another aspect of the matter is that a counter-case being Gumla P.S. Case No. 263 of 2003 was registered on 14.12.2003 on the basis of the statement of Parmeshwar Gosai. The defence has set-up a case that in the night of 13.12.2003 there was maarpit between both the parties due to the land dispute and in the occurrence Parmeshwar Gosai has also suffered serious injuries. In his cross-examination, P.W. 9 has admitted that Parmeshwar Gosai was admitted in the same hospital on the bed next to him. Though the defence has not examined the doctor who has treated Parmeshwar Gosai and therefore the nature of injury suffered by him cannot be ascertained, but there was a quarrel between both the parties which had ensued a maarpit and in the occurrence both sides have suffered injuries can be gathered from the materials on record. In "Kashi Rai vs. State of Bihar" reported in 1994 Supp (1) SCC 551, the Hon'ble Supreme Court has held as under : "7. In such a situation though it can be held that there was an unlawful assembly to the extent of committing rioting but the common object of every member of the unlawful assembly cannot be said to commit murder. In such a situation though it can be held that there was an unlawful assembly to the extent of committing rioting but the common object of every member of the unlawful assembly cannot be said to commit murder. In a case of free fight of such nature the assailants should be liable for their individual acts and it may be unsafe to convict all of them by applying Section 149 for the offence of murder. ...." 16. Keeping in mind the aforesaid principles, in our opinion, the evidence led by the prosecution to prove the charge under section 302/149 IPC does not establish that the appellants had knowledge that murder of Chamru Gosai may be caused in furtherance of common object of the assembly and the prosecution has also failed to establish that common object of the assembly of the accused persons was to commit murder of Chamru Gosai. 17. All the prosecution witnesses have stated that the cause for the occurrence was a long standing land dispute with some of the accused person; one being Fuchana Gosai @ Fulchand Gosai who is agnate of the deceased. They are living in the same village and their houses are adjacent to each other. In the incident Chamru Gosai has suffered only two injuries and P.W. 9, his son, however, has suffered nine injuries. In the opinion of P.W. 5, the injuries caused to P.W. 9 were simple in nature and Injury No.(II) on Chamru Gosai was also simple in nature. Though P.W. 5 has observed that this injury was sufficient in normal course to cause death, in view of the aforesaid prosecution evidence and, particularly because the prosecution has failed to establish who has inflicted Injury No.(I) on Chamru Gosai, all that can be gathered is that the accused persons intended to cause serious harm to Chamru Gosai. The incised would on left parietal side of head of Chamru Gosai was caused by baluwa or bhujali and it is definitely grievous in nature and, therefore, we are inclined to hold that the appellants are liable to be convicted under Section 326/34 IPC. 18. The incised would on left parietal side of head of Chamru Gosai was caused by baluwa or bhujali and it is definitely grievous in nature and, therefore, we are inclined to hold that the appellants are liable to be convicted under Section 326/34 IPC. 18. Accordingly, the judgment of conviction and the order of sentence of R.I. for life and fine of Rupees one thousand under section 302/149 IPC, both dated 02.07.2012, passed by the learned Principal Sessions Judge, Gumla in Sessions Trial No. 84 of 2004 against Fuchana Gosai @ Fulchand Gosai, who is the appellant in Criminal Appeal (D.B.) No. 839 of 2012 and Baijnath Gosai, who is the appellant in Criminal Appeal (D.B.) No. 808 of 2012, are set-aside. 19. The appellants are convicted and sentenced to R.I. for ten years under section 326/34 of the Indian Penal Code. However, their conviction under section 324/149 IPC and section 452/149 IPC are converted into under section 324/34 IPC and 452/34 IPC and the sentences awarded to them for the aforesaid offences are affirmed. 20. Mr. Bhola Nath Ojha, the learned APP, states that with remission the appellants have remained in custody for more than 11 years. 21. Accordingly, the appellants, namely, Fuchana Gosai @ Fulchand Gosai [in Criminal Appeal (D.B.) No. 839 of 2012] and Baijnath Gosai [in Criminal Appeal (D.B.) No. 808 of 2012] shall be set free forthwith, if not wanted in connection to any other criminal case. 22. In the result, Criminal Appeal (D.B.) No. 839 of 2012 and Criminal Appeal (D.B.) No. 808 of 2012 are partly allowed. 23. Let a copy of the judgment be transmitted to the Court concerned and the concerned jail superintendent through 'Fax'. 24. Let the lower-court records be sent to the Court concerned forthwith. Appeals partly allowed.