Judgment R.N.Thakur and S.H.S.Abidi JJ. 1. Appellant Binod Sharma had been convicted u/s. 302 of the Indian Penal Code (hereinafter to be called as "the Code") and sentenced to undergo rigorous imprisonment for life. Appellants Ramautar Sharma, Khokhai Tanti and Nand Lal Sharma have been convicted u/s. 302/149 of the Code and each of them have been sentenced to undergo rigorous imprisonment for life. All the appellants have also been convicted under Secs. 148 and 201 of the Code and each of them have been sentenced to undergo rigorous imprisonment for three years under both counts. Appellants Ram Rashi Sharma, Garho Sharma and Doman Sharma have been convicted also under Sec. 27 of the Arms Act but no separate sentence has been awarded under this count. 2. Banarsi Prasad Yadav (P.W. 2) lodged a case at Khagaria Police Station on 12.08.1981 at 8.30 p.m. with the allegation that he along with deceased Ramautar Sah Mukhiya, Paras Sah (P.W. 1), Ramchandra Sah (P.W. 5), Kulshan Sah (P.W. 3) and Balak Sah (P.W. 4) were coming from Khagaria on the said day at about 6 p.m. When they reached at a distance of about 200 yards towards north from village Bathnaha More, the appellants armed with lathi, chhura and pistols came on the road. Binod Sharma gave a chhura blow on the abdomen of Ramautar Sah Mukhiya on which he cried. At that time appellants Khokhai Tanti. Nandlal Sharma and Ramautar Sharma assaulted the deceased with sword and bhala which struck on his neck. Appellants Ramrai Sharma, Garho Sharma and Doman Sharma fired pistol and gun which they had in their hands, due to which the informant and others fled away. Ramautar Sah fell down on the road. Thereafter the accused-appellants took him in a nearby paddy field and kept him there. On halla several persons came and the appellants fled away. Ramautar Sah Mukhiya died then and there. 3. The informant Banarsi Prasad Yadav (P.W. 2) lodged a first information report with Khagaria police station on the basis of which a case was registered. P.W.8 who was officer in-charge of Khagaria police station, took up investigation. He inspected the place of occurrence, prepared an inquest report (and sent the dead body for post-mortem examination and after completing investigation he submitted charge-sheet against these appellants. 4. In course of trial, nine witnesses were examined on behalf of the prosecution. P.W.8 who was officer in-charge of Khagaria police station, took up investigation. He inspected the place of occurrence, prepared an inquest report (and sent the dead body for post-mortem examination and after completing investigation he submitted charge-sheet against these appellants. 4. In course of trial, nine witnesses were examined on behalf of the prosecution. Out of them, P.Ws. 1,2 and 3 are eye-witnesses of the occurrence, P.W. 2 being the informant himself. P.Ws. 4, 6 and 9 have been tendered. P.W. 5 was declared hostile. P.W. 7 is the doctor who conducted post-mortem examination and P.W. 4 is the Investigating Officer. 5. The appellants denied the allegations made by the prosecution. Further case of the appellants is that the deceased was killed by somebody in the night when nobody could, but do to enmity these appellants have been implicated in this case the learned counsel appearing for the appellants have also submitted that the trying court did not appreciate the evidence properly and, therefore, he came to a wrong conclusion. 6. The fact that the deceased died of the injuries admits of no doubt. Besides the oral evidence of the eye-witnesses, there is also evidence of the Medical Officer (P.W. 7) who at the time of post-mortem examination found the following injuries on his person: External injuries-Incised injury on the front of neck 10 cm x 6 x 5 cm. Incised wound on upper part of abdomen 6 cm x 2 x 3 cm. Incised wound on right fore-arm 3 cm x 11/2 cm." In the opinion of the doctor, death was caused due to shock and haemorrhage, caused by the aforesaid injuries, particularly injury No. 1. Time elapsed since death within 12 to 24 hours. Post-mortem was conducted on 13-8-81 at 1 p.m. Therefore, there is sufficient evidence to hold that the deceased died of the injuries which he had received. 7 Question now remains to be considered is whether the deceased received injuries at the hands of the appellants as stated by the prosecution. As described earlier the entire case rests on the evidence of P.Ws. 2 and 3. According to the prosecution case, the informant and others (P.Ws. 7 Question now remains to be considered is whether the deceased received injuries at the hands of the appellants as stated by the prosecution. As described earlier the entire case rests on the evidence of P.Ws. 2 and 3. According to the prosecution case, the informant and others (P.Ws. 1, 2 and 3) were coming from Khagaria and while they were on the way to their home these appellants were concealing themselves in a Sanai field, and as soon as they reached there the appellants rushed upon the deceased and killed him on the road. 8. From the evidence of the Investigating Officer it appears that the villages are far off from the place of occurrence. There is nothing on the record to show that these appellants were knowing from before that the deceased had gone to Khagaria and he would be returning through that way. The investigating Officer has said that he did not inspect the (sic) whether there was any foot print or trampling marks in order to corroborate the facts that the appellants were concealing themselves in that Sanai field from before to waylay the deceased and to kill him. 9. On the point of assault the prosecution evidence is not consistent. According to the first information report, appellants Nandlal Sharma, Ramautar Sharma and Khokhai Tanti assaulted the deceased on the neck with sword and Bhala. P.W. 1 says in chief in paragraph that Nandlal Sharma, Khokhai Tanti and Ramautar Sharma assaulted Mukhiyaji (Ramautar Sah) with Ta/war on the neck. He does not say that anyone of them was armed with Bhala or the deceased was assaulted with Bhala. He is not Sure as to which of the sword struck the deceased. 10. P.W. 2, the informant says that Ramautar Sharma and Nandlal Sharma had swords and Khokhai Tanti had Bhala and appellant Nandlal Sharma, Ramrasi Sharma and Khokhai assaulted the deceased on the neck with sword and Bhala. 11. Similar is the statement of P.W. 3. (Ext. A) is the protest petition filed by the informant (P.W. 2) in the Court of the Additional Chief Judicial Magistrate, Khagaria. The informant bad admitted in paragraph 13 of his evidence that he bad filed the protest petition and he further admits that (Ext. A) is the said protest petition. He further says that the statements made in that protest petition (Ex. A) are correct. In this (Ext. The informant bad admitted in paragraph 13 of his evidence that he bad filed the protest petition and he further admits that (Ext. A) is the said protest petition. He further says that the statements made in that protest petition (Ex. A) are correct. In this (Ext. A) it is mentioned that accused Khokhai Tanti and Nandlal Sharma gave sword and Bhala blows on the deceased Ramautar Sah Mukhiyaji. It is not mentioned in Ext. A that appellant Ramautar Sharma gave a sword blow on the deceased on any portion of the body. 12. The doctor (P.W. 7), as described earlier found only three injuries on the person of the deceased, but he did not find any piercing or penetrating wound which is generally caused by a Bhala blow. He found one incised injury on the right fore-arm but there is no allegation that anyone assaulted on the arm of the deceased. Therefore on the point of assault also the prosecution evidence is not consistent. 13. The learned counsel appearing for the appellants has submitted that though the Investigating Officer has said that he found blood at two places on the road but he has admitted that the A.S.P. who came to supervise the place of occurrence next day, did not mention in his supervision note that be found any blood on the road. The Investigating Officer has admitted that the A.S.P. had supervised the case and in his presence he had also submitted the supervision note which he had received. He had also read over it. 14. It also appears that the informant and the deceased were co-accused in a murder case of Dhanik Sharma and Basdeo Sharma. 15. It is said that three of the appellants, namely, Ram Rashi Sharma, Doman Sharma and Garho Sharma had fired their pistol and rifle but no sign of firing was found by the Investigating Officer at the place of occurrence or near about that place. 16. A motive has been alleged that on 3-2-1981 at the instance of the deceased who was a Mukhiya, the house of appellant Binod Sharma was searched and bomb, revolver and other stolen articles were recovered from his house and, therefore, Binod Sharma (appellant No. 3) was annoyed with the deceased. No paper has been filed to prove this motive. 17. A motive has been alleged that on 3-2-1981 at the instance of the deceased who was a Mukhiya, the house of appellant Binod Sharma was searched and bomb, revolver and other stolen articles were recovered from his house and, therefore, Binod Sharma (appellant No. 3) was annoyed with the deceased. No paper has been filed to prove this motive. 17. The informant (P.W. 2) was asked in cross-examination as to whether he could produce any paper to show that at the instance of the deceased Mukhiya the house of appellant Binod Sharma was searched, to which he replied that he would produce. Then he was challenged. 18. After taking into consideration the evidence of the Investigating Officer and other eye-witnesses, it would appear that the prosecution witnesses have not made consistent evidence on the point of assault and weapon. There are several inconsistencies on this point in between the statements before the trial court and the statements made before the Investigating Officer and before the Additional S.P. who had gone to supervise the case. The Investigating Officer has stated that the S.P. supervised the case in his presence. The witnesses were also examined by him and he read the supervision notes. 19. It has also come in evidence that several persons came at the place of occurrence on Halla but none of them has been examined in this case. 20. Taking into consideration all the aforesaid facts and the circumstances appearing in the case, we find that the appellants are entitled to get the benefit of doubt and acquittal. Accordingly, the appeal is allowed, the judgment and order of conviction and sentence passed against the appellants are hereby set aside.