Mohit Kumar Shah, J. – The aforesaid appeals preferred under Section 374 (2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as the “Cr.P.C.”), arise out of the same judgment of conviction and the order of sentence dated 25.8.2017 and 29.8.2017 respectively, passed in Sessions Trial No. 83 of 2014 (arising out of Sikarahta P.S. Case No. 75 of 2013) by the learned Court of 2nd Additional Sessions Judge, Bhojpur at Ara (hereinafter referred to as “the learned Trial Judge”), hence these Appeals have been heard together and are being disposed off by the present common judgment and order. By the said judgment, the learned Trial Judge has convicted the Appellant No. 1 of the first case and the sole appellant of the second case under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as “the I.P.C.”) while the Appellant No. 2 of the first case has been convicted under Section 302/34 of the I.P.C. and all the appellants of the aforesaid appeals have been sentenced to undergo imprisonment for life with fine of Rs. 5,000/- and in default of payment of the same, they have been directed to undergo further three months simple imprisonment. 2. Short facts of the case are that on 4.11.2013 at 6:00 am, fardbeyan of one Ramashish Singh @ Bhola Singh (P.W.3), son of late Harakh Singh was recorded by the Sub-Inspector of Police, Arun Kumar posted at Sikarahta Police Station at the Sadar Hospital, Ara. In the fardbeyan, the informant (P.W.3) has stated that his son Santosh Kumar Singh, aged about 35 years is employed in military and had come to his house three days back. He has also stated that land dispute is existing in between Vijay Singh (Appellant No. 1 of the first case), Sudama Singh (sole appellant of the second case), Abhimanyu Singh (Appellant No. 2 of the first case), Morang Singh @ Ranjeet Singh and the informant and his son and on account of the same, quarrel had taken place in between them on previous occasions as well. The informant has further stated that on 3.11.2013 in the evening at about 7:00 pm, his son Santosh Kumar Singh along with his wife was lighting diya (earthen lamp) on the roof on the occasion of Diwali. The informant has further stated that on 3.11.2013 in the evening at about 7:00 pm, his son Santosh Kumar Singh along with his wife was lighting diya (earthen lamp) on the roof on the occasion of Diwali. While Santosh Kumar Singh (deceased) was lighting candle on the roof, all the aforesaid accused persons had put a ladder from their roof to the roof of his house and had come there, whereafter they had caught hold of the son of the informant and slammed him on the ground and during the course thereof, Sobin Singh, Arvind Singh and Ram Tawakya Singh had also arrived on the roof. Thereafter, Vijay Singh (Appellant No. 1) armed with bhala had assaulted and pierced body of Santosh Kumar Singh and then Sudama Singh armed with bhala had assaulted on the right thigh and left leg of Santosh Kumar Singh and pierced the same, leading to lot of blood oozing out from the body of the deceased. Then, Santosh Kumar Singh was lifted and taken to a doctor, who said that he would not be able to treat him, hence the deceased was taken to Sadar Hospital, Ara where he died during the course of treatment. The informant has further stated that the entire incident was witnessed by Nawal Kishore Singh (P.W.7) and Hari Mangal Singh (P.W.1), apart from the incident being witnessed by other persons, which he would disclose upon being asked. 3. After recording of the fardbeyan, a formal F.I.R. bearing Sikarahta P.S. Case No. 75 of 2013 was registered under Section 302/34 of the I.P.C. on 4.11.2013 at 8:15 am against the appellants of both the aforesaid cases and Morang Singh, Sobin Singh, Arvind Singh and Ram Tawakya Singh. After investigation and finding the case to be true, the police had submitted charge-sheet on 27.01.2014 against all the aforesaid seven accused persons under Section 302/34 of the I.P.C. The learned Trial Judge had then taken cognizance vide order dated 06.03.2014 against all the aforesaid accused persons except Morang Singh. The case was then committed to the Court of Sessions vide order dated 06.03.2014 and was numbered as Sessions Trial No. 83 of 2014. Thereafter, the learned Trial Court framed charges against the aforesaid appellants and three other accused persons vide order dated 01.05.2014. The case was then committed to the Court of Sessions vide order dated 06.03.2014 and was numbered as Sessions Trial No. 83 of 2014. Thereafter, the learned Trial Court framed charges against the aforesaid appellants and three other accused persons vide order dated 01.05.2014. As far as the Appellant No. 1 of the first case and the sole appellant of the second case are concerned, the learned Trial Court had framed charges under Section 302 of the I.P.C. while it had framed charges against the Appellant No. 2 of the first case and three other accused persons under Section 302/34 of the I.P.C. During the course of trial, the prosecution had produced eleven witnesses. While P.W.1 Hari Mangal Singh (cousin brother of the deceased), P.W.2 Jai Mangal Singh (neighbor and relative of the deceased), P.W.3 Ramashish Singh @ Bhola Singh (informant of the present case and father of the deceased) and P.W.6 Reena Devi (wife of the deceased) are stated to be eye-witnesses, P.W. 4 Saroj Singh, P.W.5 Nandji Singh and P.W. 8 Sushil Singh are witnesses to the seizure list. As far as P.W.7 Nawal Kishore Singh is concerned, he is not only related to the deceased but is also witness to the fardbeyan, while P.W. 9 Dr. Naresh Prasad is the Doctor, who had conducted postmortem of the body of the deceased Santosh Kumar Singh and P.W. 11 Raj Narain Chaudhary is an advocate clerk, who has identified the two FSL reports (Exhibit 9 and 10). 4. The learned Senior Counsel for the sole appellant of the second case has argued that none of the so-called eye-witnesses i.e. P.W.1, P.W.2, P.W.3 and P.W.6 are actually eye-witness to the alleged occurrence and in order to impeach their credibility as eye-witnesses, he has submitted that as far as P.W. 3 is concerned, he has stated in his fardbeyan that he was present on the terrace, whereafter the accused persons had arrived on the roof and then the accused namely, Vijay Singh and Sudama Singh had assaulted the deceased. It is submitted that P.W. 3 has stated in paragraph No. 1 of his examination-in-chief that he was present there, however the same is not established from a bare reading of the F.I.R. In paragraph No. 2 of his evidence, P.W.3 has introduced a new assailant, namely, Sobin Singh, who is stated to have assaulted the deceased and in paragraph No. 21, P.W. 3 has stated that he was engaged in worshiping on the ground floor of his house, whereas in paragraph No. 22 of his cross-examination, P.W. 3 has stated that he had seen the accused persons climbing the stairs. Thus, it is submitted by the learned Senior Counsel for the appellant of the second case that admittedly, the said witness i.e. P.W. 3 (informant) was not present at the alleged place of occurrence where the accused are alleged to have assaulted the deceased. In any view of the matter, it is submitted that even if it is assumed although denied that P.W.3 was present at the place of occurrence, it is intriguing as to why he did not take any steps to restrain the accused persons from assaulting the deceased. It has been pointed out that P.W. 3 has also stated in his cross-examination that at the time when he reached on the roof of his house, no assault was taking place. The learned Senior Counsel for the appellant of the second case has next referred to the evidence of P.W.6 Reena Devi, wife of the deceased and has stated that in paragraph No. 4 of her evidence, she has stated that her father-in-law had arrived at the place of occurrence after she had raised hulla (alarm). In paragraph No. 13, P.W. 6 has stated that when her father-in-law had arrived at the place of occurrence, the accused persons had fled away and then her father-in-law had disclosed the name of the accused persons. Thus, it is submitted that the names of accused persons have been introduced subsequently by the father-in-law of P.W.6, hence the entire incident is doubtful. In para No. 17, P.W. 6 has stated that she had seen her husband when he had fallen down in the lane, thus, it is submitted that even P.W. 6 cannot be stated to be an eye-witness. 5. In para No. 17, P.W. 6 has stated that she had seen her husband when he had fallen down in the lane, thus, it is submitted that even P.W. 6 cannot be stated to be an eye-witness. 5. The learned Senior Counsel for the appellant of the second case has further referred to the evidence of P.W.1, Hari Mangal Singh and has submitted that he has stated in his evidence that he had seen the incident from the ground floor. As far as P.W. 2 Jai Mangal Singh is concerned, it has been submitted that in paragraph No. 8 of his evidence, he has stated that he was on the roof of his house and it was a dark night. In paragraph No. 9, P.W. 2 has stated that when he reached the place of occurrence, he saw that the deceased had fallen down in the lane. In paragraph No. 10, P.W. 2 has stated that after he reached the place of occurrence, the other witnesses including P.W. 7 Nawal Kishore Singh had arrived there. Thus, in nutshell it is submitted that a bare perusal of the evidence of P.W.1, P.W.2, P.W.3 and P.W.6 would show that they are not eye-witnesses to the alleged occurrence. 6. The learned Senior Counsel for the appellant of the second case has further submitted that if it is to be taken that none of the witnesses are eye-witness to the alleged occurrence, one would have to fall back on circumstantial evidence, which is not present in the present case in view of the fact that even the place of occurrence is uncertain and doubtful, inasmuch as no blood soaked mud was seized from the roof and the same was seized only from the lane. It is also submitted that the prosecution has deliberately withheld Sri Arun Kumar, who had prepared the seizure list (Exhibits-2 and 3) of the mud soaked with blood and in case he would have been examined, the defense would have got an opportunity to cross-examine him and also put a question to him as to under what circumstances the mud soaked with blood was not seized from the roof. It is further submitted that from a bare perusal of the evidence of P.W.3, as contained in paragraph No. 17 onwards, it is apparent that it is an impossibility that the accused persons would have climbed from their house to the roof over the second floor of the house of the informant. It is next submitted by the learned Senior Counsel that the Investigating Officer (P.W.10) has stated in para No. 21 of his cross-examination that no blood was seized from the roof or the stairs and in paragraph No. 28, he has stated that at the time of seizing bhala, he had not written as to whether bloodstains were present on the bhala or not. 7. The learned Senior Counsel for the appellant of the second case has contended that the medical evidence and ocular evidence are at variance, inasmuch as though it has been alleged by the witnesses that the Appellant No. 1 of the first case and the appellant of the second case had assaulted the deceased by bhala and inflicted piercing injuries on the chest and thigh, however a bare perusal of the postmortem report would show that all the three injuries found on the chest and thigh/ leg are lacerated injuries and no penetrating injuries have been found. It is also submitted that on dissection the lungs have been found to be lacerated, however no injury has been found on the ribs. Thus, it is submitted that such kind of injuries cannot be caused by spear. It is next submitted that the F.S.L report has been exhibited by an advocate clerk, who has stated in his evidence that neither the signatures were made on the F.S.L report by the maker of the report in his presence nor the report was prepared in his presence. Thus, it is submitted that such F.S.L. reports do not have any evidentiary value. In such view of the matter, it is submitted by the Ld. Senior Counsel that the Ld. Trial Court has committed a grave error in convicting the appellant of the second case U/s. 302 I.P.C., hence this Court is required to interfere with the same and acquit the appellant of the 2nd case. 8. The learned counsel appearing for the appellants of the first case, Sri Prabhat Kumar Singh, assisted by Ms. Senior Counsel that the Ld. Trial Court has committed a grave error in convicting the appellant of the second case U/s. 302 I.P.C., hence this Court is required to interfere with the same and acquit the appellant of the 2nd case. 8. The learned counsel appearing for the appellants of the first case, Sri Prabhat Kumar Singh, assisted by Ms. Priya, has adopted the arguments advanced by the learned Senior Counsel for the appellant of the second case and has submitted that the appellants of the first case are also required to be acquitted. 9. The learned APP for the State, Sri Ajay Mishra has submitted that neither the presence of the accused at the place of occurrence is in doubt nor the place of occurrence is under a cloud, as would be borne out from the evidence of witnesses, which is consistent and there are no contradictions. The learned APP for the State has also referred to the evidence of the Investigating Officer i.e. P.W. 10 to submit that he has described the place of occurrence to be the roof of the two-story concrete house of the informant Ramashish Singh as also the adjoining single-story house of the accused persons. It is also submitted that P.W. 10 has stated in his evidence that upon inspecting the place of occurrence, he had found blood spread over the roof of the two storied house of the informant apart from blood having been found all throughout the stairs upto the lane. It is contended that much has been said by the appellants about identification of the accused in view of the fact that occurrence had taken place on a dark night, however the fact remains that all the accused persons are relative of the informant and his family members, hence identification was not a problem and they could have been identified easily. The Ld. APP for the State has submitted that there are no contradictions in the evidence of the witnesses which in any view of the matter is consistent, hence is required to be relied upon. Lastly, it is stated that there is no discrepancy in between the medical evidence (postmortem report) & the ocular evidence. Thus, it is submitted that no interference is required in the impugned judgment of conviction and sentence, passed by the learned Trial Judge. 10. Lastly, it is stated that there is no discrepancy in between the medical evidence (postmortem report) & the ocular evidence. Thus, it is submitted that no interference is required in the impugned judgment of conviction and sentence, passed by the learned Trial Judge. 10. Besides hearing the learned counsel for the parties, we have minutely perused both the evidences i.e. oral and documentary. Before proceeding further, it is necessary to cursorily discuss the evidence. 11. P.W.1 Hari Mangal Singh is the neighbour and relative of the deceased. He has stated in his deposition that the occurrence dates back to 03.11.2013, evening of Diwali festival when he was lighting diya (earthen lamp) on the floor of his house, while the deceased Santosh Kumar Singh, his wife Reena Devi and daughters were also lighting diya (earthen lamp) on the roof of the house of Bhola Singh (informant). He has stated that on the roof of the house of Bhola Singh, no railing is present and therefore, the roof is clearly visible. P.W.1 has further stated that he saw from the door of his house that Sudama Singh (appellant of the second case), Abhimanyu Singh (Appellant No. 2 of the first case), Vijay Singh (Appellant No. 1 of the first case), Morang @ Ranjeet Singh, Arvind Singh and Sobin Singh had all climbed on the roof of Santosh (deceased) by putting a bamboo ladder, whereafter they had assaulted Santosh and had held the hands & legs of Santosh. Thereafter, Vijay Singh had assaulted the deceased over the upper portion of the chest near the neck by bhala, Sudama Singh had assaulted the deceased by bhala on the thigh of right leg and then Sobin Singh had assaulted the deceased on the left thigh by garasa. P.W.1 has further stated in his examination-in-chief that upon alarm being raised, covillagers had arrived there, whereafter Santosh was carried over a cot and taken to Mopti Bazar but the Doctor had referred him to Ara where the Doctor had declared Santosh to be dead. P.W.1 has further stated that the incident has taken place on account of land dispute in between the parties. He had recognized the accused persons standing in the dock. In cross-examination, P.W.1 has stated that the deceased Santosh is his cousin brother and his house is situated towards the east at 10 steps from the house of Santosh. P.W.1 has further stated that the incident has taken place on account of land dispute in between the parties. He had recognized the accused persons standing in the dock. In cross-examination, P.W.1 has stated that the deceased Santosh is his cousin brother and his house is situated towards the east at 10 steps from the house of Santosh. He has also stated that at the time of occurrence, he was lighting diya (earthen lamp) outside his house and his wife was not along with him. 12. In paragraph No. 8 of his cross-examination, P.W.1 has stated that he had made his statement before the police on the second day of the incident in the morning. He has also stated that he has not stated before the police that while he was making preparation for worshiping, his wife had told him that hulla (alarm) has been raised to the effect that quarrel has taken place in between the family of Santosh and Vijay, Abhimanyu, Sudama and others and that thereafter, he had gone running to the house of Santosh and had seen Santosh to have fallen in the lane on the ground floor of the house as also that the accused persons were climbing down the stair of the house where the incident had taken place. P.W.1 has also stated in his cross-examination that he has stated before the police that he had heard the noise of crying of Ramashish Singh (informant) and his daughter-in-law from the roof and then he could understand that some big incident has taken place. He has also stated that he had seen Santosh having fallen down in the lane, after climbing down the stairs of his house as also he was drenched with blood, whereafter he had also gone there and raised an alarm. P.W.1 has also stated that he had then put Santosh over the cot & taken him for treatment to Mopti Bazar. 13. In paragraph No. 15 of his cross-examination, P.W.1 has stated that he cannot say as to whether at the time of incident, it was dark or light was present. In paragraph No. 16 of his cross-examination, P.W.1 has stated that after he reached at the lane, Jai Mangal Singh (P.W.2), Arun Singh, Budhrai Singh, Brijgopal Singh, Baban Singh, Nand Kumar and others had arrived there. In paragraph No. 16 of his cross-examination, P.W.1 has stated that after he reached at the lane, Jai Mangal Singh (P.W.2), Arun Singh, Budhrai Singh, Brijgopal Singh, Baban Singh, Nand Kumar and others had arrived there. He has further stated that Ramashish Singh (P.W.3), Nawal Kishore Singh (P.W.7) and Reena Devi (P.W.6) had also come there and then they had talked about the incident. In paragraph No. 17 of his cross-examination, P.W.1 has stated that land dispute is existing in between both the parties since before and case is also going on. Although P.W.1 has stated in paragraph No. 17 that upon being requested by the informant, he is giving his evidence, however he has then explained that since he had witnessed the incident, he is one of the witnesses to the present trial. P.W.1 has also stated that he had seen two injuries inflicted by bhala and one injury inflicted by farsa on the person of the deceased. P.W.1 has stated in paragraph No. 21 of his cross-examination that it is not a fact that he had not stated before the Investigating Officer that he had seen from the door of his house that Sudama Singh, Abhimanyu Singh, Vijay Singh, Morang @ Ranjeet Singh and Arvind Singh had climbed the house of Santosh, caught hold of Santosh and assaulted him, whereafter Vijay Singh had assaulted on the upper portion of the chest near the neck by bhala and then Sudama had assaulted on the right thigh of the leg of the deceased and then Sobin Singh had assaulted over left thigh of the leg of the deceased by farsa. 14. P.W.2 Jai Mangal Singh is the neighbor and relative of the deceased and he has stated in his deposition that the occurrence dates back to 3.11.2013 at about 7:00-7:30 in the evening when he was on the roof of his house and was lighting diya (earthen lamp). He has stated that after he heard hulla (alarm), he saw that Sudama, Vijay Singh, Abhimanyu Singh, Morang Singh, Sobin Singh, Arvind Singh and Ram Tawakya Singh were armed with bhala in their hands, while Sobin was armed with farsa in his hand. Abhimanyu Singh, Arvind Singh, Morang Singh and Ram Tawakya Singh had caught hold of the deceased Santosh Kumar Singh, whereafter they had thrown him on the ground and then Vijay and Sudama Singh started assaulting him by bhala. Abhimanyu Singh, Arvind Singh, Morang Singh and Ram Tawakya Singh had caught hold of the deceased Santosh Kumar Singh, whereafter they had thrown him on the ground and then Vijay and Sudama Singh started assaulting him by bhala. He has also stated that assault took place on the roof of the house of Santosh Kumar Singh. He has next stated that Santosh Kumar Singh was assaulted near the neck and on his thighs, whereafter he had got drenched with blood. He has also stated that the accused persons had put a bamboo ladder and climbed over the house of the deceased. After being assaulted, Santosh had climbed down and had fallen down in the lane, whereafter all the persons present there had taken Santosh to Mopti Bazar where the Doctor did not treat the deceased, hence, the deceased was taken to Sadar Hospital for the purposes of treatment and while Santosh Singh was being taken to Ara for treatment, he died on the way. He has stated that the accused persons had given effect to the incident in question on account of land dispute and other disputes amongst them. He had recognized the accused persons present in the dock. In cross-examination, P.W.2 has stated that the deceased is his cousin brother. He has also stated in his cross-examination that at the time when hulla (alarm) was raised he was on the roof of his house and at that time, his son Manji Kumar Singh and his wife Lalita Devi were also present at his house. He has next stated that at about 7:00 pm in the evening, he had gone to light pip and the night was dark since it was Krishna Paksha. 15. P.W.2 Jai Mangal Singh has also stated that after hearing noise, he had come down from the roof along with his wife and son. He has also stated that he had not heard any sound of firing. He has also stated that while he was going to house of Santosh, he had met 4-5 persons, namely Arun Singh, Nitesh Singh, Shiv Mangal Singh, Saroj and Rajesh. While Nitesh and Arun had reached there before him, the rest of the people had reached after him. He has also stated that he had not heard any sound of firing. He has also stated that while he was going to house of Santosh, he had met 4-5 persons, namely Arun Singh, Nitesh Singh, Shiv Mangal Singh, Saroj and Rajesh. While Nitesh and Arun had reached there before him, the rest of the people had reached after him. He has also stated that when he reached the place of occurrence, he saw that the deceased was lying in the lane and the body of the deceased was smeared with blood as also he had seen two injuries on the person of the deceased. He has also stated that after he had reached the place of occurrence, some people, namely Bhuvneshwar, Awdhesh, Ramdev and 5-7 other persons had arrived there including Ayodhya Singh, Umesh Singh, Nawal Singh (P.W.7), Sushil Singh (P.W.8) and others. He has also stated that the lane in which the deceased had fallen down is 4 feet wide and it runs from east to west direction. He has next stated that blood had fallen down in the lane only at one place spreading over 1-1 ½ in palm length and width. P.W.2 has further stated in paragraph No. 12 of his cross-examination that there is no railing present over the roof of the house of the deceased, however 7 feet high railing is situated over his roof. He has also stated that towards the north of the place of occurrence, the house of the accused persons are situated and towards south, the house of the deceased is situated whereas towards the east, personal house of P.W.2 is situated and towards the west, house of Budhram Singh is situated. He has also stated that the place where the deceased had fallen down is surrounded by the said houses. In paragraph No. 14 of his cross-examination, P.W.2 has stated that police had gone to the place of occurrence in his presence on 21.3.2013, however, immediately thereafter, P.W.2 has stated that police had gone on 21.11.2013. P.W.2 has also stated that he was lighting diya (earthen lamp) on his roof top and other people were also lighting diya (earthen lamp) at their homes. 16. P.W.3 Ramashish Singh @ Bhola Singh is the informant of this case and is the father of the deceased. P.W.2 has also stated that he was lighting diya (earthen lamp) on his roof top and other people were also lighting diya (earthen lamp) at their homes. 16. P.W.3 Ramashish Singh @ Bhola Singh is the informant of this case and is the father of the deceased. He has stated in his deposition that on 3.11.2013, the occurrence had taken place at about 7:00 in the evening on which day Diwali festival was being celebrated and at that time his son Santosh Kumar along with his wife and children were lighting diya (earthen lamp) and he was also present there. He has also stated that his son used to work in military and he had come to his home on leave. P.W.3 has further stated that the accused persons, namely Vijay Singh, Sudama Singh, Sobin Singh, Arvind, Lalan Singh, Abhimanyu Singh and Ram Tawakya Singh had put ladder on the northern side of the house and climbed over the house. Accused Vijay Singh, Sudama Singh and Sobin were holding bhala in their hand. Thereafter, four accused persons, namely, Abhimanyu Singh, Lalan Singh, Arvind, Ram Tawakya Singh and Morang had caught hold of the son of the informant, whereafter Vijay Singh had assaulted over the upper portion of the chest of his son by bhala and then Sudama Singh had assaulted his son on his right leg and then Sobin had assaulted his son on the knee of his left leg by bhala (spear). P.W.3 has further stated that after being assaulted, blood started oozing out from the body of his son and when his daughter-in-law went to save him, the accused persons had pushed her. Thereafter, they had brought down the deceased and then he had become unconscious as also blood was oozing out. The people present there, had then put the deceased on a cot and taken him to Bazar for treatment and the Doctor present at Mopti Bazar had referred the deceased for treatment to Ara Sadar, however before reaching Ara Sadar Hospital, the son of P.W. 3 died on the way. 17. P.W.3 Ramashish Singh has also stated that the accused persons have killed his son on account of land dispute. He has next stated that his fardbeyan was recorded on 4.11.2013 at Sadar Hospital by the police personnel at about 6:00 am in the morning and the same was written by the police personnel. 17. P.W.3 Ramashish Singh has also stated that the accused persons have killed his son on account of land dispute. He has next stated that his fardbeyan was recorded on 4.11.2013 at Sadar Hospital by the police personnel at about 6:00 am in the morning and the same was written by the police personnel. He has also stated that the fardbeyan was read over to him and after finding the same to be correct, he had put his signature over the same, which he has identified and the same has been marked as Exhibit 1. The fardbeyan also bears the signature of witness Nawal Kishore Singh (P.W.7), which P.W. 3 has identified and the same has been marked as Exhibit 1/A. P.W.3 had recognized the accused persons present in the dock. P.W.3 in his cross-examination has stated that Nawal Kishore Singh is the son of his cousin brother, namely, Ram Keshwar Singh and at the time his fardbyan was being written, Nawal Kishore Singh was present at the police station. Nawal Kishore Singh was present at the time fardbeyan was read over to P.W.3 and he had also gone to the hospital from the village. He has next stated that all the persons had talked amongst themselves about the occurrence. He has next submitted that it had taken two hours to reach Ara Sadar Hospital from the village. He has stated that the distance to Mopti Bazar from his village is about .75 kilometer. 18. In paragraph No. 10 of his cross-examination, P.W.3 has stated that they had reached Mopti Bazar at about 7:30 in the evening and it had taken about 10-15 minutes to reach there. Thereafter, they had hired a vehicle to go to Ara and while going to Ara, 2-3 police stations were situated on the way and after reaching ahead of Garhani, his son stopped breathing. He has next stated that police station and Primary Health Centre is situated at Garhani and before Garhani, Hospital and Police Station are also situated at Piro. He has stated that from Garhani, they had directly gone to Ara Sadar Hospital but they had not returned back to their home and had reached Ara Hospital at about 9-9:30 in the night. He has also stated that on the said day, he had disclosed about the incident to the Officer-in-Charge. He has stated that from Garhani, they had directly gone to Ara Sadar Hospital but they had not returned back to their home and had reached Ara Hospital at about 9-9:30 in the night. He has also stated that on the said day, he had disclosed about the incident to the Officer-in-Charge. In paragraph No. 12 of his cross-examination, P.W.3 has stated that at the time of going to the Hospital at Piro, he had got his son examined but the Doctor had not prescribed any medicine and they had stayed there for about 10-15 minutes, while he was crying, however he cannot say as to whether any documentation was made. In para No. 15 of his cross-examination, P.W.3 has stated that land dispute and criminal cases are going on with the accused persons from before. 19. In Paragraph No. 17 of his cross-examination, P.W.3 has stated that he has got only one house in which some part is single story and some part is double story and the house is north facing. In paragraph No. 18 of his cross-examination, P.W.3 has stated that the accused persons, namely Arvind Singh and Sudama Singh live towards northern side of his house and all the accused persons stay in one house. He has also stated that the house of the accused persons is north facing and their door opens towards the northern side and there is no way to come out from the southern side of the house of the accused persons. In paragraph No. 19 of his cross-examination, P.W.3 has stated that in between his house and the house of the accused persons, there is a lane, which is two hand length wide. He has stated that the house of the accused persons is single story and his house is situated towards the northern side, which is two story and there are two rooms on the second floor. In paragraph No. 20 of his cross-examination, P.W.3 has stated that the roof of both the rooms situated on the roof is 5 feet heigh. He has also stated that they used bamboo ladder to climb on the roof situated towards the upper portion of the house, which is straight towards northern side and no space has been left on the northern side. He has also stated that they used bamboo ladder to climb on the roof situated towards the upper portion of the house, which is straight towards northern side and no space has been left on the northern side. In paragraph No. 21 of his cross-examination, P.W.3 has stated that deceased Santosh Singh was lighting candle on his roof and he was lighting candle on the second floor. He has next stated that firstly, he was lighting candle on the second floor. He has also stated that the deceased Santosh along with his wife was lighting candle. P.W.3 has next stated that both the daughters of Santosh were lighting crackers while P.W.3 was worshiping on the ground floor of his house. 20. In paragraph No. 22 of his cross-examination, P.W.3 has stated that he had himself seen the accused persons climbing by ladder on the roof. He has stated that he had climbed on the second floor by bamboo ladder. He has also stated that his ladder was positioned on the eastern side. He has next stated that the accused persons had used ladder to climb from their house one by one and at that time, he was present on the roof of his two storied house. He has stated that firstly, Sudama had arrived on the roof. He has also stated that since the ladder of the accused persons had been erected at a distance, he could not see the same and the same was at a distance of 10 feet. P.W. 3 has also stated that when he reached on the roof he saw Santosh Singh lighting candle and when he went on the roof, he had seen the accused persons, however when he had reached on the roof, assault was not taking place. P.W.3, upon being asked that when he heard hulla (alarm), whether he felt that assault is taking place on the roof, to which he had said yes. In paragraph No. 34 of his cross-examination, P.W.3 has stated that Santosh had fallen down on the roof at a distance of 5 feet towards the northern side of the ladder. He has also stated that when the accused persons had fled away, the deceased was taken down with the help of the co-villagers and during the course thereof, his hand, kurta and dhoti had also become stained with blood. 21. He has also stated that when the accused persons had fled away, the deceased was taken down with the help of the co-villagers and during the course thereof, his hand, kurta and dhoti had also become stained with blood. 21. In paragraph No. 36 of his cross-examination, P.W.3 has stated that it is not a fact that he had not stated before the police that when his daughter-in-law went to save his son, the accused persons had pushed her and thereafter, they had brought down the son (deceased) of P.W.3. He has also stated that he had made a statement before the police to the effect that his son (deceased) had climbed down on his own and had fallen down in the lane. In paragraph No. 39 of his cross-examination, P.W.3 has stated that all the accused persons were related to him. 22. P.W.4 Saroj Singh is a seizure list witness, who has signed the seizure list prepared by the police on 3.11.2013 at about 8:30 in the night regarding blood-soaked mud and he has identified his signature made over the same, which has been marked as Exhibit-2. He has also stated that on 4.11.2013, the police had recovered bhala (spear) at about 9:30 am in the day time from the chhajja of the hayhut and thereafter, its seizure list was prepared over which he had also made his signature, which he has identified and the same has been marked as Exhibit-2/1. He has also stated that Sushil Singh had also made his signature over the same. He has also identified the signature of Sushil Singh made over the aforesaid two seizure lists, which have been marked as Exhibit-3 and 3/1. 23. P.W.5 Nandji Singh is the witness of the seizure list of the bamboo stairs and he has stated in his deposition that the police personnel had seized the bamboo ladder from the house of Sudama at about 10:00 am in the morning on 4.11.2013 and prepared a seizure list over which he had put his signature, which he has identified and the same has been marked as Exhibit-4. He has also stated that the seizure list also bears the signature of another witness, namely, Jai Mangal Singh (P.W.2) and he has identified his signature, which has been marked as Exhibit-4/A. He has also stated that the deceased is his uncle. He has also stated that the seizure list also bears the signature of another witness, namely, Jai Mangal Singh (P.W.2) and he has identified his signature, which has been marked as Exhibit-4/A. He has also stated that the deceased is his uncle. In paragraph No. 3 of his deposition, P.W.4 has stated that the length of the ladder is about five hands long. 24. P.W.6 Reena Devi is the wife of the deceased and daughter-in-law of the informant and she has stated in her deposition that the occurrence dates back to one year and ten days i.e. 3.11.2013 at about 7:00 pm in the evening when she along with her daughter and husband was lighting candle on the roof and at that time all the accused present in the Court, namely Vijay Singh, Sudama Singh, Ram Tawakya Singh, Sobin Singh, Arvind Singh, Mannu Singh and Morang Singh had arrived on the roof by putting a ladder from their roof. Vijay Singh, Sudama Singh and Sobin Singh were armed with bhala and they had thrown Santosh Singh on the ground and had engaged in scuffle. Thereafter, Arvind, Morang and Abhimanyu Singh had also engaged in scuffle with the husband of P.W.6. P.W.6 has next stated that Vijay Singh had assaulted her husband on side of chest by bhala (spear) and then Sobin Singh had assaulted him by garasa, whereafter Sudama Singh had assaulted her husband by bhala on his thigh. P.W.6 has next stated that she had then raised an alarm (hulla), whereafter his father-in-law Bhola Singh had arrived there and then the accused persons had pushed her resulting in her falling down, whereupon the accused persons had climbed down the ladder and had jumped and fled away. The husband of P.W.6 was then taken for treatment in an injured condition to hospital at Mopti Hospital where he was referred for better treatment by the Doctor to Ara Sadar Hospital where he died. She has also stated that since there was land related dispute with the accused persons, the accused persons have killed her husband. She had recognized the accused persons present in the dock except Ram Tawakya Singh. 25. In paragraph No. 13 of her cross-examination, P.W.6 has stated that when her father-in-law had arrived upon alarm being raised, all the accused persons had fled away and thereafter, her father-in-law had disclosed the name of the accused persons. She had recognized the accused persons present in the dock except Ram Tawakya Singh. 25. In paragraph No. 13 of her cross-examination, P.W.6 has stated that when her father-in-law had arrived upon alarm being raised, all the accused persons had fled away and thereafter, her father-in-law had disclosed the name of the accused persons. In paragraph No. 14 of her cross-examination, P.W.6 has stated that accused Ram Tawakya Singh stays at Badki Kharao and he was not able to resolve the land dispute in between the parties, hence his name was also given in the case pertaining to the instant occurrence. In para No. 17 of her cross-examination, P.W.6 has stated that on the day of occurrence, crackers were being busted, however she was not busting cracker and she had climbed down from the roof after five minutes and had come down at about 7:05 pm and while she was downstairs, she heard hulla about killing of her husband and her husband had fallen in the lane where she had seen him, whereafter she had become unconscious & had regained consciousness after 2 days. She has also stated that she has not seen any injury on the body of her husband, however her father-in-law had seen the injury and told her about it. She has also stated in her cross-examination that her father-in-law had disclosed about the entire incident to her. 26. P.W.7 Nawal Kishore Singh is relative of the deceased and is a witness to the fardbeyan. P.W.7 has stated in his deposition that the occurrence dates back to 3.11.2013 at about 7:00 in the evening, while he was lighting candle at the door of his house and at that time, he heard alarm regarding assault, whereafter he saw that a ladder had been erected from the roof of Vijay Singh to the roof of Santosh Singh. He has also stated that after he heard about killing and running of some persons, he stopped in the lane itself and he saw that Morang Singh had jumped from the roof and Sudama Singh, Vijay Singh, Arvind Singh, Abhimanyu Singh, Sobin Singh and Tawakya Singh were climbing down the ladder as also Sudama Singh, Vijay Singh and Sobin Singh were holding bhala in their hand while other accused persons were holding bhala and barchha (spear like weapon) in their hand. P.W.7 has further stated that he had heard Santosh Singh, his father and wife from the roof and had seen that father and wife of Santosh Singh were holding him as also bringing him down from the roof and during the course thereof, Santosh Singh fell at the door of his house. He has also stated that he had seen injuries on the chest, right thigh and left knee of Santosh Singh. He has also stated that Santosh was smeared with blood and blood was falling from his body. He has stated that after Santosh had fallen down, he saw that Nitesh, Arun, Shiv Mangal, Hari Mangal, Jai Mangal etc. had loaded Santosh over a cot and taken him to Mopti from where he was taken to Ara via Piro and then Santosh had died. He has also stated that land dispute is existing in between the parties. He had identified the accused persons standing in the dock. 27. In paragraph No. 13 of his cross-examination, P.W.7 has stated that it is not a fact that Ram Tawakya Singh had not arbitrated in between the parties properly and that is why he has been made an accused. In para No. 15 of his cross-examination, P.W.7 has stated that at about 6:30 in the evening, he along with his sister, brother, wife and children were lighting candle and he had continued lighting candle for about half an hour. He has next stated that it takes about 1-2 minute to come from the door of his house to the place of occurrence and when he reached at the place of occurrence, the occurrence was taking place and he had remained at the place of occurrence for three seconds. 28. In paragraph No. 16 of his cross-examination, P.W.7 has stated that when he had gone to the place of occurrence, he did not go up and he had not seen any injury upon him, however after five minutes at about 7:00 pm, he had seen injury and at that time, Santosh was lying in the lane. In paragraph No. 17 of his cross-examination, P.W.7 has stated that after he had reached the place of occurrence, Chandrama, Budhram Singh, Arun, Saroj and other co-villagers had arrived there. In paragraph No. 17 of his cross-examination, P.W.7 has stated that after he had reached the place of occurrence, Chandrama, Budhram Singh, Arun, Saroj and other co-villagers had arrived there. He has also stated that he had seen three injuries on the body of Santosh and when he had seen the injuries, Santosh had fallen down and blood was oozing out from his body. In paragraph No. 20 of his cross-examination, P.W.7 has stated that except the accused persons, he is not on inimical terms with anyone. He has also stated that in his presence, bhala was recovered from the place of occurrence, however he has again stated that bhala was recovered away from the dead body. In paragraph No. 27 of his cross-examination, P.W.7 has stated that when he reached in the lane then he saw that Santosh Singh had come from his house to the lane and had fallen down in front of the door of his house and blood was oozing out in substantial quantity. 29. P.W. 8 Sushil Singh is witness to the seizure list of the blood-soaked mud. In his deposition, he has stated that the occurrence dates back to 3.11.2013 at about 7:00-8:00 in the evening and on the day of occurrence at about 8:30 pm in the night, the police had seized the blood-soaked mud from the place of occurrence and had prepared a seizure list on which he had put his signature as a witness, which he has identified and the same has been marked as Exhibit-3. He has further stated that the police had also seized a bhala from the hay hut of Sudama Singh on 4.11.2013 at about 9:30 am and had prepared a seizure list over which he had made his signature, which has already been exhibited as Exhibit-3/1 previously. 30. P.W.9 Dr. Naresh Prasad is the Doctor, who had conducted postmortem of the dead body of the deceased Santosh Kumar Sigh at Sadar Hospital Ara on 4.11.2013 at about 11:30 am where he was posted as Medical Officer on duty. He had found the following ante mortem injuries: – “Rigor mortis was present & the following injuries were found: – (1) Lacerated wound over the upper part of chest left side 1 ½” x 1” x 3” deep with soakage of cloth with blood. He had found the following ante mortem injuries: – “Rigor mortis was present & the following injuries were found: – (1) Lacerated wound over the upper part of chest left side 1 ½” x 1” x 3” deep with soakage of cloth with blood. (2) Lacerated wound over the right thigh size 11/2” x 1” x 4 inch deep. (3). Lacerated wound over the left knee size 1”x1”x 2” deep. On dissection of the dead body of the deceased, Dr. Naresh Prasad had come to the following findings: – Skull-brain and meninges are pale. Chest- there is blood and blood clot found over the left side of chest cavity, lungs lacerated. Rest is normal. Heart- Pale and empty. Abdomen- All viscera are pale. Stomach contains pasty material. Bladder contain 2ml of residual urine. P.W.9 had opined that the time elapsed since death is 6 to 24 hours before examination and the cause of death is hemorrhage and shock leading to death as a result of above noted injuries caused by penetrating pointing weapon. P.W.9 has stated in his deposition that he had prepared the postmortem report in his writing and had signed the same, which he has identified and the same has been marked as Exhibit-5. In his cross-examination, P.W. 9 has stated that all the injuries found on the body of the deceased are not penetrating wound. He has also stated in his cross-examination that left lung was lacerated and ribs covering left lung were not injured. In paragraph No. 9 of his cross-examination, P.W. 9 has stated that it is wrong to say that none of the injuries or any injury was not caused by penetrating arms and it is correct that lacerated wound may be caused by hard and blunt substance. 31. P.W. 10 Sunil Kumar Jaiswal is the Investigating Officer of this case and he has stated in his deposition that on 4.11.2023, he was posted as S.H.O. of Sikarahta Police Station. He has also stated that he had registered P.S. Case No. 75 of 2013 on the basis of fardbeyan of Ramashish Singh @ Bhola Singh and had assumed investigation of the case. He has also stated that fardbeyan was scribed by J.S.I. Arun Kumar. He has recognized the writing of Arun Kumar, which has been marked as Exhibit-6. He has also stated that he had registered P.S. Case No. 75 of 2013 on the basis of fardbeyan of Ramashish Singh @ Bhola Singh and had assumed investigation of the case. He has also stated that fardbeyan was scribed by J.S.I. Arun Kumar. He has recognized the writing of Arun Kumar, which has been marked as Exhibit-6. P.W.10 has further stated that during the course of investigation, he had recorded the restatement of the informant, whereafter he had gone to the place of occurrence and had inspected the place of occurrence. He has stated that the place of occurrence is situated near Banwari Mathia under the Sikarahta Police Station. P.W.10 has also stated that the informant Ramashish Singh @ Bhola Singh has two story pacca house with a roof and adjacent to it, roof of new pacca single story house is situated. One door of both the houses face towards north and opens in the lane. He has also stated that the FIR named accused persons had killed Santosh Kumar Singh in the evening of Diwali festival at about 7:00 pm on the roof of the old two storied house of the informant. 32. P.W.10 has further stated that during the course of inspection of the two storied house of the informant, he had found blood spread over the roof and the blood had also fallen all through the staircase up to the lane. He has also stated that there is a distance of 3-4 feet in between the house of the informant and that of the accused persons. P.W.10 has also described the bhala used in the occurrence and has stated that the bhala was recovered from the thatched / hay hut of the accused, which was hidden there and the seizure list was prepared by J.S.I. Arun Kumar. The said seizure list is in the writing of Arun Kumar, which has also been signed by him and the same has been identified by P.W.10 and marked as Exhibit-7. P.W.10 has also stated that mud soaked with blood and bamboo ladder from the house of the accused persons was also recovered and the seizure list of the blood-soaked mud was prepared by the J.S.I. Arun Kumar, which is in his writing and has also been signed by him, which P.W.10 has identified and the same has been marked as Exhibit-7/1. P.W.10 has also stated that the seizure list of ladder is in his writing and has been signed by him, which he has identified and the same has been marked as Exhibit-7/2. 33. P.W. 10 Sunil Kumar Jaiswal has also stated that on 4.11.2013 itself, he had recorded the statement of Nawal Kishore (P.W.7). On 5.11.2013, he had recorded the statement of witness Hari Mangal Singh (P.W.1). On 6.11.2013, he had given an application before the Court for sending the seized bloodsoaked mud and bhala to FSL, Patna. On 18.11.2013, he had sent the seized exhibits to the FSL, Patna for examination. P.W.10 has also stated that during the course of investigation, he had examined witness Reena Devi (P.W.6), Jai Mangal (P.W.2) and Arun Kumar (not examined). P.W. 10 is also stated to have received the postmortem report of the deceased Santosh Kumar Singh. P.W.10 has stated that the inquest report of the deceased Santosh Kumar Singh was prepared at Sadar Hospital, Ara by J.S.I. Arun Kumar, which has been prepared in his handwriting as also it has been signed by him, and the same has been identified by P.W.10, which has been marked as Exhibit-8. P.W. 10 is also stated to have taken photographs of the place of occurrence, ladder etc., which have been marked as ‘X’ to ‘X/11’ series for identification. P.W.10 has also stated that the formal F.I.R. is in his writing, which he has identified and the same has been marked as Exhibit-9. He has also stated that he had filed charge-sheet under Section 302/34 against the appellants and other accused persons on the basis of the fardbeyan, statement of the witnesses, inspection of the place of occurrence, articles seized from the place of occurrence and postmortem report. In his cross-examination, P.W.10 has stated that prior to registration of the formal F.I.R. on 4.11.2013, he had not received written information of the occurrence, however, oral information was received at 7:30 pm on 3.11.2013 and he had gone to the place of occurrence on the same day at 7:30 pm after receiving information about the occurrence. 34. In his cross-examination, P.W.10 has stated that prior to registration of the formal F.I.R. on 4.11.2013, he had not received written information of the occurrence, however, oral information was received at 7:30 pm on 3.11.2013 and he had gone to the place of occurrence on the same day at 7:30 pm after receiving information about the occurrence. 34. In his cross-examination in paragraph No. 12, P.W.10 has stated that he had recorded the statement of Hari Mangal Singh (P.W.1) on 5.11.2013 and the said witness had stated before him that while worshiping was going on, his wife told him that hulla is being raised and quarrel is taking place in between Santosh, accused persons and others, whereafter P.W. 1 had rushed to the lane, where he saw the accused persons, namely Vijay, Sudama Singh, Tawakya Singh etc. climbing down the ladder in the lane and fleeing away. P.W.10 has further stated that P.W.1 had not stated before him that upon hearing the crying and shout of Ramashish Singh and his daughter-in-law, he understood that some big occurrence has taken place and that he had seen Santosh Singh being brought down and falling in the lane, smeared with blood. P.W.10 has also stated that P.W.1 did not state before him that thereafter, P.W.1 had gone there, put Santosh Singh over the cot and taken him to Mopti Bazaar and that he had seen from the door of his house that Sudama Singh, Abhimanyu Singh, Vijay Singh, Arvind and others had climbed the roof of the house of Santosh and all had caught hold of Santosh as also had assaulted him after catching hold of his hands and legs and Vijay Singh had assaulted Santosh by bhala over the upper portion of his chest near the neck and Sudama had assaulted Sanotsh on the thighs of left leg, whereafter Sobin Singh had assaulted by farsa on the left leg of Santosh. 35. P.W.10 has further stated that Ramashish Singh (P.W.3) has stated before him that when his daughter-in-law tried to save Santosh then the accused persons had pushed her, however P.W. 3 has not stated that afterwards they had brought his son down. In paragraph No. 20 of his cross-examination, P.W.10 has stated that the house of the accused persons is situated towards eastern side of the house of Ramashish Singh. In paragraph No. 20 of his cross-examination, P.W.10 has stated that the house of the accused persons is situated towards eastern side of the house of Ramashish Singh. He has also stated that after the lane, the single-story house of the accused persons is situated towards the northern side. In Paragraph No. 21 of his cross-examination, P.W. 10 has stated that he had prepared the sketch map of the place of occurrence in which he had not mentioned about bloodstains being present at any place of occurrence. He has also stated that he had not seized blood from the roof or ladder. In paragraph No. 25 of his cross-examination, P.W.10 has stated that the height of the second floor from the first floor of the house of Ramashish Singh is 5 feet. He has also stated that he did not find any ladder to climb on the second floor. In para No. 27, P.W. 10 has stated that he had received the postmortem report on 13.11.2013. In para No. 28, P.W.10 has stated that at the time of seizing bhala, he had not mentioned as to whether bloodstains were present over the same or not. 36. P.W. 11 Raj Narain Chaudhary is an advocate clerk, who has proved the F.S.L. reports dated 5.8.2014 and 10.7.2015 respectively, which have been marked as Exhibit-9 and 10. In his cross-examination, P.W.11 has stated that neither the aforesaid F.S.L. reports were prepared in his presence nor signatures were made over the same in his presence. 37. After closing the prosecution evidence, the learned Trial Court recorded the statement of the appellants on 05.04.2016 under section 313 of the Cr.P.C. for enabling them to personally explain the circumstances appearing in the evidence against them, however, they claimed themselves to be innocent. 38. The Trial Court upon appreciation, analysis and scrutiny of the evidences adduced at the trial has found the aforesaid appellants guilty of the offences and has sentenced them to imprisonment and fine, as stated above, by its impugned judgment and order. 39. We have perused the impugned judgment of the learned Trial Court, the entire materials on record and have given thoughtful consideration to the rival submissions made by the learned counsel for the appellants as well as the learned APP for the State. 39. We have perused the impugned judgment of the learned Trial Court, the entire materials on record and have given thoughtful consideration to the rival submissions made by the learned counsel for the appellants as well as the learned APP for the State. The first and foremost aspect, which is required to be adjudged is as to whether any ocular evidence is available on record to prove the guilt of the appellants for the offences with which they have been charged. The prosecution has led the evidence of P.W.1 Hari Mangal Singh, P.W.2 Jai Mangal Singh, P.W.3 Ramashish Singh @ Bhola Singh and P.W.6 Reena Devi as eye-witnesses to the alleged occurrence and based on the same, the learned Trial Judge has convicted the appellants whereas the appellants have primarily taken the defense that the said witnesses are not eye-witnesses and actually none of the prosecution witnesses have witnessed the commission of the alleged occurrence. In this regard, we find upon perusal of the evidence of the prosecution that as far as P.W.4 Saroj Singh, P.W.5 Nandji Singh, P.W.8 Sushil Singh and P.W.11 Raj Narain Chaudhary are concerned, they are either witnesses to the seizure list or have identified the two FSL reports but have not stated anything about the alleged occurrence in their deposition. 40. P.W.9 is Dr. Naresh Prasad who had conducted the postmortem examination of the dead body of the deceased Santosh Kumar Singh. As far as P.W.7 Nawal Kishore Singh is concerned, he is admittedly not an eye-witness, inasmuch as he has stated in his evidence that after he had heard about killing of the deceased he had stopped in the lane where he saw that the father and wife of the deceased were holding and bringing down the deceased from the roof whereafter, the deceased fell at the door of his house, apart from the fact that P.W.2 Jai Mangal Singh has stated that after he had reached the place of occurrence he found the deceased lying in the lane and thereafter, P.W.7 Nawal Kishore Singh and P.W.8 Sushil Singh had arrived there, hence obviously P.W.7 Nawal Kishore Singh is not an eye-witness to the alleged occurrence. P.W.10 Sunil Kumar Jaiswal is the Investigating Officer of the present case, hence obviously he is not an eye-witness to the alleged occurrence nor he claims to be so. P.W.10 Sunil Kumar Jaiswal is the Investigating Officer of the present case, hence obviously he is not an eye-witness to the alleged occurrence nor he claims to be so. Hence, we are left with P.W.1 Hari Mangal Singh, P.W.2 Jai Mangal Singh, P.W.3 Ramashish Singh @ Bhola Singh and P.W.6 Reena Devi. As far as P.W.1 Hari Mangal Singh is concerned, he has though stated in his examination-in-chief that he had seen from the ground floor of his house that the accused persons had climbed the roof of the house of the deceased by putting a ladder and then the Appellant No.1 of the first case, the sole appellant of the second case and Sobin Singh had assaulted the deceased by bhala (spear) and garasa on chest and thighs, however in his cross-examination, he has stated that he had stated before the police that he heard the noise of crying of Ramashish Singh @ Bhola Singh (informant) and his daughter-in-law from the roof and then he could understand that some big incident has taken place, whereafter he went in the lane in question and saw that the deceased had fallen down there after climbing down the stairs of his house and was drenched with blood but P.W.10 Sunil Kumar Jaiswal (Investigating Officer), upon being confronted with the statement of P.W.1 Hari Mangal Singh, has stated that he had recorded the statement of P.W.1 Hari Mangal Singh on 5.11.2013, however P.W.1 had not stated before him that upon hearing the cry and shouting of Ramashish Singh @ Bhola Singh and his daughter-in-law, he understood that some big occurrence has taken place, whereafter he had seen Santosh Kumar Singh being brought down, who then fell in the lane as also P.W.1 had not stated before him that the appellants and others had climbed the roof of the house of Santosh, they had caught hold of him and assaulted him badly by bhala (spear) & farsa. Thus, we find that material contradictions have been elicited by the defense, as far as P.W.1 Hari Mangal Singh is concerned, hence he can neither be stated to be an eye-witness nor is a trustworthy witness. 41. Thus, we find that material contradictions have been elicited by the defense, as far as P.W.1 Hari Mangal Singh is concerned, hence he can neither be stated to be an eye-witness nor is a trustworthy witness. 41. Now coming to P.W. 2 Jai Mangal Singh, he has stated in his evidence that he was on the roof of his house, it was a dark night and after hearing noise he had come down from the roof and while going to the house of the deceased he had met 4-5 persons and when he reached at the place of occurrence, he found the deceased lying in the lane. Thus, P.W.2 Jai Mangal Singh is also apparently not an eye-witness. As regards P.W.3 Ramashish Singh (informant), he has stated in his evidence that he was worshiping on the ground floor while the deceased and his wife were lighting candle on the second floor as also he has stated that when he reached the roof, assault was not taking place. In fact, P.W.6 Reena Devi has also stated in her evidence that when her father-in-law arrived on the roof all the accused persons had fled away and then he had disclosed the names of the accused. Thus, P.W.3 Ramashish Singh @ Bhola Singh (informant) has also not witnessed the alleged occurrence. Now coming to P.W.6 Reena Devi, she has herself stated in her evidence that she had come down from the roof at 7:05 pm and when she was downstairs, she heard hulla (alarm) regarding killing of her husband and him having fallen in the lane, whereafter she had gone there and seen her husband having fallen in the lane, whereupon she became unconscious and regained consciousness after two days and the entire incident was disclosed to her by her father-in-law, hence P.W.6 Reena Devi is also not an eye-witness to the alleged occurrence. Thus, all the aforesaid witnesses i.e. P.W.1 Hari Mangal Singh, P.W.2 Jai Mangal Singh, P.W.3 Ramashish Singh & P.W.6 Reena Devi are definitely not eye-witnesses to the alleged occurrence. 42. Thus, all the aforesaid witnesses i.e. P.W.1 Hari Mangal Singh, P.W.2 Jai Mangal Singh, P.W.3 Ramashish Singh & P.W.6 Reena Devi are definitely not eye-witnesses to the alleged occurrence. 42. Now coming to the issue as to whether the place of occurrence itself has been established or not, we find that it is the case of the prosecution that the occurrence took place on the roof of the house of the informant but P.W.1 Hari Mangal Singh had found the deceased lying in the lane, after he had arrived there upon being told by his wife that alarm is being raised to the effect that quarrel is taking place in between the deceased and the accused persons, while P.W.2 Jai Mangal Singh has also stated to have reached the place of occurrence after hearing noise / hulla and had found the deceased lying in the lane, apart from P.W.6 Reena Devi having also stated in her evidence that when she was downstairs she heard hulla about killing of her husband and he having fallen down in the lane, whereafter she went there and saw that her husband was lying in the lane and even, P.W.7 Nawal Kishore Singh had found the deceased to have fallen at the door of his house in the lane, although P.W.3 Ramashish Singh @ Bhola Singh has stated in his evidence that he had himself seen the accused persons climbing on the roof by means of a ladder and there the deceased was assaulted by the accused persons, however in his cross-examination he has stated that he was worshiping on the ground floor and after hulla being raised when he reached the roof, assault was not taking place and in fact, P.W.6 Reena Devi has stated in her evidence that her father-in-law had arrived there after all the accused persons had fled away. Moreover, P.W.10 Sunil Kumar Jaiswal (Investigating Officer) has admitted that no blood was either seized from the roof or the ladder. Moreover, P.W.10 Sunil Kumar Jaiswal (Investigating Officer) has admitted that no blood was either seized from the roof or the ladder. Thus, neither there is any ocular nor documentary evidence nor any corroborative evidence to prove the claim of the prosecution that the place of occurrence is the roof of the house of the informant, much less the roof of the second floor of the house of the informant, hence we are of the view that the prosecution has failed to establish the place of occurrence, as has been described in the prosecution’s story, thus the same is fatal to the case of the prosecution. It is a well settled law that proving the place of occurrence is material and failure of the prosecution to prove the same is fatal to the case of the prosecution. Reference in this regard be had to a judgment rendered by the Hon’ble Apex Court in the case of Syed Ibrahim vs. State of A.P., reported in (2006) 10 SCC 601 , paragraph no. 11 whereof is reproduced herein below: – “11. In the background of principles set out above …………. He has indicated four different places to be the place of occurrence. In his examination-in-chief he stated that the occurrence took place in his house. In the cross-examination he stated that the incident took place at the house of his wife, the deceased's mother. This is a very important factor considering the undisputed position and in fact the admission of PW 1 that he and his wife were separated nearly two decades ago, and that he was not on visiting terms with his wife. Then the question would automatically arise as to how in spite of strained relationship he could have seen the occurrence as alleged in the house of his wife. That is not the end of the matter. In his cross-examination he further stated that the incident happened in the small lane in front of the house of his wife. This is at clear variance with the statement that the occurrence took place inside the house where allegedly he, the deceased, his son, PW 2 and daughters, PWs 3 and 6 were present. That is not the final say of the witness. He accepted that in the FIR (Ext. P-1) he had stated the place of occurrence to be the house of the deceased. That is not the final say of the witness. He accepted that in the FIR (Ext. P-1) he had stated the place of occurrence to be the house of the deceased. Though the FIR is not a substantive evidence yet, the same can be used to test the veracity of the witness. PW 1 accepted that what was stated in the FIR was correct. When the place of occurrence itself has not been established it would not be proper to accept the prosecution version.” 43. As far as medial evidence is concerned, we find from a bare perusal of the postmortem report that all the three ante mortem injuries found on the dead body of the deceased are lacerated wounds and no incised / penetrating injury has been found, especially the ribs covering the left lung have also not been found to have been injured, thus apparently the injuries suffered by the deceased are not attributable to any sort of assault made upon the deceased by bhala (spear) or garasa. Thus, apparently the ocular evidence led by the prosecution is totally at variance with the medical evidence, which amounts to a fundamental defect in the case of the prosecution, hence in such cases ocular evidence is required to be disbelieved, especially in view of the fact that the evidence led by the prosecution goes to suggest that Appellant No. 1 of the first case had assaulted the deceased by bhala and caused piercing injury on his body whereas the sole appellant of the second case had also assaulted the deceased by bhala on his right thigh and left leg causing piercing injuries, however on the contrary the medical evidence, as aforesaid makes the ocular testimony improbable. Reference in this connection be had to a judgment rendered by the Hon’ble Apex Court in the case of Gangabhavani vs. Rayapati Venkat Reddy & Ors., reported in 2013 (15) SCC 298 , paragraphs no. 11 and 12 whereof are reproduced herein below: – “11. It is a settled legal proposition that where the evidence of the witnesses for the prosecution is totally inconsistent with the medical evidence or the evidence of the ballistics expert, it amounts to a fundamental defect in the prosecution case and unless it is reasonably explained may discredit the entire case of the prosecution. It is a settled legal proposition that where the evidence of the witnesses for the prosecution is totally inconsistent with the medical evidence or the evidence of the ballistics expert, it amounts to a fundamental defect in the prosecution case and unless it is reasonably explained may discredit the entire case of the prosecution. However, the opinion given by a medical witness need not be the last word on the subject. Such an opinion is required to be tested by the court. If the opinion is bereft of logic or objectivity, the court is not obliged to go by that opinion. After all an opinion is what is formed in the mind of a person regarding a particular fact situation. If one doctor forms one opinion and another doctor forms a different opinion on the same facts, it is open to the Judge to adopt the view which is more objective or probable. Similarly, if the opinion given by one doctor is not consistent or probable, the court has no liability to go by that opinion merely because it is given by the doctor. “34. … ‘it would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eyewitnesses’ account which had to be tested independently and not treated as the “variable” keeping the medical evidence as the “constant” '. 35. Where the eyewitnesses' account is found credible and trustworthy, a medical opinion pointing to alternative possibilities cannot be accepted as conclusive. The eyewitnesses' account requires a careful independent assessment and evaluation for its credibility, which should not be adversely prejudged on the basis of any other evidence, including medical evidence, as the sole touchstone for the test of such credibility.” (Vide Ram Narain Singh vs. State of Punjab [ (1975) 4 SCC 497 ], State of Haryana vs. Bhagirath [ (1999) 5 SCC 96 ], Abdul Sayeed vs. State of M.P. [ (2010) 10 SCC 259 ], SCC p. 273, paras 34-35 and Rakesh vs. State of M.P. [ (2011) 9 SCC 698 ] ) 12. Thus, the position of law in cases where there is a contradiction between medical evidence and ocular evidence stands crystallised to the effect that though the ocular testimony of a witness has greater evidentiary value vis-à-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved.” 44. Thus, taking into account an overall perspective of the entire case, emerging out of the totality of the facts and circumstances, as indicated hereinabove and having perused the entire evidence on record, we find that the prosecution witnesses i.e. P.W.1 Hari Mangal Singh, P.W.2 Jai Mangal Singh, P.W.3 Ramashish Singh @ Bhola Singh and P.W.6 Reena Devi, who claim themselves to be eye-witnesses of the alleged occurrence are apparently not eye-witnesses to the alleged occurrence, in light of the analysis of their evidence in the preceding paragraphs herein above, apart from the fact that the case as set up by the prosecution to the effect that the occurrence took place on the roof of the house of the informant has not stood established from the evidence led by the prosecution, as is apparent from the discussion made hereinabove and moreover, the ocular evidence is wholly inconsistent with the medical evidence and the medical evidence completely rules out the possibility of the ocular evidence led by the prosecution pertaining to infliction of injuries upon the deceased by bhala (spear) and garasa being true leading to fundamental defect in the case of the prosecution and the same being rendered improbable, hence we find that the prosecution has failed to prove beyond all reasonable doubts the commission of the offence by the appellants. Therefore, we find that the learned Trial Judge has committed a gross error in holding that the prosecution has produced reliable and cogent evidence in support of the charges framed against the aforesaid appellants and has proved the case beyond all reasonable doubts by the testimonies of P.W. 1 to P.W.7 and P.W.9, as corroborated by the documentary evidences. Therefore, we find that the learned Trial Judge has committed a gross error in holding that the prosecution has produced reliable and cogent evidence in support of the charges framed against the aforesaid appellants and has proved the case beyond all reasonable doubts by the testimonies of P.W. 1 to P.W.7 and P.W.9, as corroborated by the documentary evidences. Thus, in the facts and circumstances as discussed hereinabove and for the foregoing reasons, we are of the view that there are compelling reasons in the present case, which necessitates that the appellants of the aforesaid two appeals be given the benefit of doubt. 45. Accordingly, we find that the findings of conviction recorded by the learned Trial Court, in our opinion, is not sustainable and requires interference. Therefore, the judgment of conviction dated 25.8.2017 and the order of sentence dated 29.8.2017, passed by the learned Court of 2nd Additional Sessions Judge, Bhojpur at Ara, in Sessions Trial No. 83 of 2014 (arising out of Sikarahta P.S. Case No. 75 of 2013) are set aside. The appellants of the aforesaid two appeals are acquitted of the charges levelled against them. 46. The Appellant No. 1 of the first case i.e. Criminal Appeal (DB) No. 1313 of 2017, namely Vijay Singh and the sole appellant of the 2nd case i.e. Criminal Appeal (DB) No. 1312 of 2017, namely Sudama Singh, who are in custody are directed to be released from jail forthwith unless required in any other case. 47. As far as the Appellant No. 2 of the first case i.e. Criminal Appeal (DB) No. 1313 of 2017, namely Abhimanyu Singh, is concerned, he is already on bail, hence he is discharged from the liability of his bail bonds. 48. Accordingly, the aforesaid two appeals i.e. Criminal Appeal (DB) No. 1313 of 2017 and Criminal Appeal (DB) No. 1312 of 2017 stand allowed. Soni Shrivastava, J. – I agree.