Judgment S. N. Jha, J. 1. Death Reference No.2/1988 and Criminal Appeal No.272/1988 and Cr. Appeal No.307/1988 arising out of the same trial, have been heard together and are being disposed of by his common judgment. 2. Death Reference No.2/1988. He has been made in regard to Mithilesh rai who is sole appellant in Cr. Appeal No.307/1988. He has been convicted under Sec.302 of the Indian Penal Code (for short the Penal Code) for committing murder of Arun Rai and has been sentenced to death. 3. In Cr. Appeal No.272/1988, there are two appellants, namely, Madan rai and Raj Naresh Rai. Both these appellants have been convicted under section 302/109 of the Penal Code and each of them has been sentenced to undergo rigorous imprisonment for life. 4. In trial there were five accused persons including the aforesaid three appellants out of whom two of the accused, namely, Rajendra Rai and Ramdas rai were acquitted. 5. A fardbeyan (Ext.10) was recorded by the S. I. Police of Athmalgola police station (PW ) 3) at the place of occurrence in village Dachini Chak within the Athmalgola Police station in the district of Patna on 17-5-1985 at 5.30 P M. on the statement of the informant Mahendra Rai (PW 11) stating, inter-alia, that the informant along with Jugeshwar Rai (PW 8) were sitting in Badrawa mango orchard just adjacent south to his house and his cousin arun Rai (deceased) was also sleeping on a cot in the same orchard. In the mean time, accused Madan Rai and Mithilesh Rai came there twice and went away. Again at about 12.00 noon both the accused Madan Rai and Mithilesh rai came from the side of their house and Madan Rai caught hold of the upper part of neck of his deceased cousin who was sleeping on the cot and accused Mithilesh Rai who was carrying Kakut (chaff cutter) gave a heavy blow on Aruns neck as a result of which his neck was chopped of and stream of blood began to flow. On seeing the occurrence, when the informant Mahendra rai along with Jugeshwar Rai (PW 8) proceeded forward to catch hold of the accused persons, they abused them and uttered that if they would come, they would also meet the same fate and both of them fled towards their houses going through west north, Till then on hulla many persons of the village came there. It is also stated in the fardbeyan that his cousin brother Kalicharan Rai (PW 9)and Jagdish Rai (PW 7) have also seen the occurrence. The fardbeyan also reveals that on the date of occurrence in the morning, informants brother (the deceased) had gone towards the house of accused to measure milk, Rajendra rai and Ramdas Rai (since acquitted) both belonging to the same village, fathers of both the aforesaid accused Madan Rai and Mithilesh Rai respectively, demanded milk from Arun on which Arun said that milk would cost Rs.5/-per kg, and his father would supply the same, which led to some altercation between the deceased and the aforesaid Ramdas Rai and Rajendra Rai. On this Rajendra Rai and Ramdas Rai ordered their respective sons to kill Arun by cutting his neck within day hours whatsoever come and after giving this order, both Rajendra Rai and Ramdas Rai (since acquitted) went to their work. According to the informant, therefore, he was with his brother keeping watch on him but suddenly the accused persons committed the crime and fled away in deceitful manner. 6. On the basis of the fardbeyan (Ext.10), a formal F. I. R. (Ext.12) was drawn up and criminal case was instituted and the police started investigation. 7. It appears that on the same day at about 3.30 P. M. after the comission of the alleged murder, the Officer Incharge of Athmalgola police station got information that some murder have been committed at Dachini Chak village and after making an entry in the station diary regarding the same, he at once proceeded to the village with police party and there he recorded the aforesaid fardbeyan on the statement of Mahendra Rai at about 5.30 P. M. on the basis of which a formal F. I. R. (Ext.12) was drawn up as indicated above. 8. 8. After completing the investigation, charge-sheet was submitted against the five accused persons and the case was ultimately committed to the court of sessions for trial which ended in the conviction in respect of the aforesaid three appellants and two of the accused persons, namely, Ramdas Rai and Rajendra rai were acquitted. 9. In trial all the accused persons have denied the charges levelled against them and it was submitted on their behalf that they have falsely been implicated in the case at the instance of one Narsingh Narain Singh @ Khalifaji who is a very influential man of the locality. It was also contended on behalf of the defence that the said Khalifaji was on enmical terms with the accused. It is said that he had earlier got instituted a false case against Munarik Rai (DW 5)through his servant Kamta Gupta about 20 years ago and in that case, accused rajendra Rai and Ramdas Rai (since acquitted) had stood surety of the said munarik Rai when he was released on bail. According to the defence case, all the prosecution witnesses who are intimately related each other are under the influence of the said Khalifaji. It was also contended that the morning incident of the alleged date of occurrence regarding the price of milk is entirely false and concocted. Plea of alibi was also taken on behalf of three of the accused persons, namely, Mithilesh Rai, Rajendra Rai and Ramdas Rai (since acquitted ). 10. In order to prove the charges levelled against the appellants, the prosecution has examined as many as 13 witnesses out of whom PW 7 jagdish Rai, PW 8 Jugeshwar Rai, PW 9 Kalicharan Rai, PW 10 Deopati devi and PW 11 Mahendra Rai (the informant) are said to be eye witnesses to the occurrence. PWs 7 and 8 are also witnesses to the inquest report (Ext.9)prepared by the I. O. (PW 13) at the alleged place of occurrence. 11. Pw 1 Deoki Rai claims himself to be a witness regarding the incident alleged to have taken place in the morning on the date of occurrence regarding some altercation between the deceased and the accused Ramdas Rai and rajendra Rai (since acquitted ). PW 4 Ramdeo Rai is uncle of PW 1 deoki Rai. He is also a witness to the aforesaid alleged morning incident. PW 4 Ramdeo Rai is uncle of PW 1 deoki Rai. He is also a witness to the aforesaid alleged morning incident. PW 12 Ram Sabadh Rai is the father of the deceased Arun Rai who was not present in the village at the time of occurrence but he came subsequently after the occurrence. PW 2 Bindeshwari Rai is a witness on the point of handing over the weapon by Ram Naresh Rai to the accused Mithilesh rai. The aforesaid three witnesses, namely, PWs 1, 2 and 12 are said to have reached the place of occurrence after the occurrence. 12. The other witnesses are namely, PW 3 Nageshwar Prasad who is a formal witness and has proved the protest petition dated 10-9-1985 (Ext.1) and two applications Exts.2 and 3 ). PW 5 Bechan Singh is a witness on the seizure list prepared by the I. O. after collecting blood stained earth at the place of occurrence. PW 4 Ramdeo Rai is a witness on the morning incident which is said to be the motive of the alleged crime. PW 6 is Dr. Gopal Shankar who held the post mortem examination on the body of the deceased and PW 13 kailash Rai is the I. O. 13. The defence has also examined six witnesses out of whom DW 1 is the private medical practitioner who has said that Mithilesh Rai was under his treatment from 16-5-1985 to 19-5-1985 and DW 6 is Dr. Baldeo Prasad Singh, resident Medical Officer who has expressed his opinion regarding the position of the deceased at the time of alleged occurrence. DWs 3 and 4 are employees in the eastern railway who have been examined on the point of alibi and DW 2 is an Accountant Clerk who is also a formal witness. 14. Learned Addl. Sessions Judge I, has formulated two points, namely, (i)as to whether there had been any alternation between the deceased and some of the accused persons in the morning and whether accused Rajendra Rai, Ramdas rai (since acquitted) and appellant Raj Naresh Rai instigated or abated the other accused for committing the murder in question ; and (ii) as to whether the appellant Mithilesh Rai and Madan Rai caused the death of the deceased arun Rai as alleged by the prosecution So far as the aforesaid point no. (i) concerned, the learned Sessions Judge has recorded the finding as follows :- "it, thus, appears that the evidence of PWs 1 and 4 regarding the alleged incident which allegedly took place in the morning of alleged date of occurrence between the deceased and Madan Rai is not at all believeable. " 15. In this connection, the learned Judge has considered the evidence of pws 1 and 4. According to PW 1 when accused Madan Rai went to his own darwaza after the aforesaid morning incident, his father Rajendra Rai enquired from him as to whether he had brought milk and when Madan replied in negative, accused Ramdas Rai, father of accused Mithilesh Rai, appellant Raj naresh Rai and Rajendra Rai got infuriated and told him (appellant Madan rai) and Mithilesh Rai who was also present there to kill Arun at any cost. This part of the prosecution case has not been rightly believed by the learned sessions Judge as per the evidence available on the record which I will discuss later on and accordingly the learned Sessions Judge acquitted Rajendra Rai and ramdas Rai. 16. So far as point No. (ii) is concerned, learned Sessions Judge has recorded a finding which reads as follows : "thus, after careful consideration of the entire relevant evidence and materials on record and of the circumstances brought to light, I am inclined to believe that both the accused Mithilesh Rai and Madan rai went together with a Kakut (chaff-cutter) in the hand of the former to commit murder of Arun Rai, who was sleeping, on a cot beside a mango tree in the mid-noon of the alleged date of occurrence and that accused Mithilesh Rai gave a fatal blow on his neck by the chaff cutter while his said co-accused Madan Rai was catching hold of the victims head. It appears from the evidence and materials on record that both the said accused were sharing common intention of committing the said murder and that the crime was premeditated. It also appears quite clear from the conduct of accused Madan Rai that he aided and abetted his said so-accused in committing the said murder. " 17. On this finding, the learned Sessions Judge has convicted the appellants and sentenced them as indicated above. Hence the reference and the appeals. 18. Mr. It also appears quite clear from the conduct of accused Madan Rai that he aided and abetted his said so-accused in committing the said murder. " 17. On this finding, the learned Sessions Judge has convicted the appellants and sentenced them as indicated above. Hence the reference and the appeals. 18. Mr. Braj Kishore Prasad, learned counsel appearing on behalf of appellants has divided the prosecution case into three parts, namely : (i) morning incident which led to the alleged crime, (ii) handing over of Kakut (chaff cutter) to Mithlesh by Raj Naresh Rai before the occurrence and (iii) the actual commission of crime. 19. According to the learned defence counsel, the Additional Judge has himself found the evidence of PWs 1 and 4 regarding the alleged morning incident not at all believeable. Therefore, according to his submission if that part of the prosecution case is not accepted which is the motive and genesis of alleged crime, the question of taking any revenge by accused Rajendra Rai and Ramdas rai (since acquitted) and Raj Naresh Rai does not arise at all. According to the learned counsel, the prosecution case, as it appears from the F. I. R. is that the altercation took place in the morning for supply of milk at particular rate between Arun Rai and fathers of appellants Madan Rai and Mithilesh Rai which led to this ghastly murder of Arun Rai and in the case that part of the prosecution case becomes doubtful and the testimony of PWs 1 and 4 who are said to be the eye witnesses on the point of morning incident is not accepted, the entire prosecution case becomes doubtful. In the F. I. R. it is mentioned that in the morning Arun had gone towards the house of the accused Rajendra rai add Ramdas Rai where they demanded milk and there was some altercation regarding the rate on which both of them ordered their respective so as to kill arun by cutting his neck. PW 1 who is said to be an eye witness to the morning incident has stated that on the date of occurrence at about 6-7 A. M. in the morning, Arun had gone to his place for measuring milk and appellant madan Rai asked him to give milk measuring about 2 to 3 kgs. Arun laid that he would give milk @ Rs.5/- per kg. Arun laid that he would give milk @ Rs.5/- per kg. on which Madan in abusive language retorted that milk is not sold @ Rs.5/- per kg. here. According to the evidence of PW 1, he asked them not to create any trouble at this Darwaza and to go to their houses and removed them. He has further stated that when Madan rai went to his Darwaza, accused Rajendra Rai (since acquitted) asked him as to whether he had brought milk. Madan replied in negative. At that time accused Ramdas Rai, Raj Naresh Rai and Mithlesh Rai were also present. Rajendra Rai, Ramdas Rai and Raj Naresh Rai asked Madan to kill him. They would bear the expenditure involved in the case. In the afternoon, this witness heard that some one had cut the head of the son of Thamman @ Ram sabadh PW 12. According to this witness, he went to the place of occurrence and saw Mithilesh and Madan coming. He further stated in his cross-examination that he did not ask any body at the place of occurrence to go and inform the police about the incident nor he did hear any body saying that some one should go to the police station and file case against the accused persons. PW 4 has stated that the deceased Arun Rai used to measure milk. On the date of occurrence accused Madan went to him and asked for milk. Arun said that he would give milk @ Rs.5/- per kg. It was 6,00 A. M. when the dispute arose between Madan and Arun. Deoki PW 1 separated them. Madan and Arun went away separately. 20. Pw 1 has categorically asserted in the court that Madan asked or milk and on the point of payment there was altercation between the deceased Arun and Madan whereas in the P. I. R. it is mentioned that it was his father Rajendra Rai who asked for milk from Arun and on the altercation Kajendra Rai and Ramdas Rai ordered their respective sons to kill arun Rai. It is also significant to note that PW 1 claims to have intervened and asked them not to quarell there and go to their houses. It is also significant to note that PW 1 claims to have intervened and asked them not to quarell there and go to their houses. The assertion of pw 1 that deceased Arun had gone to his house to supply milk has been falsified by the statement of PW 4 Ramdeo Rai who has stated that Deoki Rai pw 1 was supplying milk to Arun. 21. In view of all these contradictory statements made by the PWs 1 and 4 in the court regarding the morning incident, the learned Additional Sessions judge, in my opinion, has rightly disbelieved the alleged morning incident and the statements of these two PWs 1 and 4, namely, Deoki Rai and Ramdeo Rai respectively. 22. No coming to the second part of the prosecution story i. e. handing over the weapon by accused Raj Naresh Rai to accused Mithilesh Rai, there is a solitary witness on this point i. e. PW 2 Bindeshwari Rai. He has stated before the trial court that at about 12.00 noon on the date of occurrence, he had gone to the well of one Jamun Rai tor taking bath and there he saw that accused raj Naresh gave Kakut (chaff-cutter) in the hands of Mithilesh and asked him to go and do his work Mithilesh took the Kakut and went towards house of Thamman and Ram Sabadh Rat (PW 12) along with Madan. After some time while he was changing his Dhoti after taking bath, he heard hulla that mithilesh cut Thammans son Arun with Kakut and on hearing hulla, when he went towards the house of Thamman (PW 12), he saw accused Mithilesh running from that side. Madan was also with him. This witness has said that he saw Kakut in the hands of Mithilesh which was smeared with blood. He did not dare catch them and went to the place of occurrence and saw the neck of arun chopped of. According to the version of this witness Arun was on khatia (cot) where his neck was chopped of. He has further stated that he came to know that in the morning at 7.00 A. M. there was a dispute between arun and Madan. 23. From his statement, it appears that while he was taking bath at the well, he saw appellant Raj Naresh giving the weapon in the hands of accused mithilesh. He has further stated that he came to know that in the morning at 7.00 A. M. there was a dispute between arun and Madan. 23. From his statement, it appears that while he was taking bath at the well, he saw appellant Raj Naresh giving the weapon in the hands of accused mithilesh. He also heard the talk between them saying "you go and do your work" and immediately after some time while he was changing his cloth, he heard hulla that accused Mithilesh had cut the neck of the deceased who was lying on the cot. He at once rushed to the place of occurrence. This part of the prosecution story is completely missing in the fard beyan on the basis of which a formal F. I. R. as drawn upon the statement of Mahendra Rai (PW 11) who claims to be present at the place of occurrence along with PW 8 Jugeshwar Rai. If this witness had seen the handing over the weapon and also heard the conversation between Raj naresh and Mithilesh and learnt about the actual occurrence and rushed to the place of occurrence, it is but natural that he should have disclosed the story of handing over of weapon to atleast PW 11, the informant and PW 8 but he did not disclose this fact till 3.00 P. M. on 18-5-1985. This prosecution case is that occurrence took place at 12.00 noon on 17-5-1985 and till 3 P. M. on the next day i. e.18-5-1985, PW 2 Bindeshwari Rai did not disclose this fact to any body which seems to be highly improbable and unnatural conduct on the part of this witness. This is the solitary evidence on this point and his testimony has not been corroborated by any other witness adduced on behalf of the prosecution. In his evidence, it has come that the place of occurrence was at a distance of one Rassi from the well at which he was taking bath and at a distance of 6 to 7 bamboos in the north, houses of appellants Raj Naresh and Mithilesh were situated. He has further stated that accused Raj Naresh had not given Kakut his house but at a distance 3 to 4 steps from there near the Dagar where he was at the well. He has further stated that accused Raj Naresh had not given Kakut his house but at a distance 3 to 4 steps from there near the Dagar where he was at the well. This witness was examined at 3.00 P. M. on 18-5-1985 as stated by PW 13, the I. O. and for the prosecution case regarding handing over the weapon. His statement was also recorded under Sec.164 of the Code of criminal Procedure before the Magistrate. Curiously enough, this part of the prosecution story has not been discussed by the trial court at all. PW 11 in his examination-in-chief before the trial court in para 10 of his deposition has stated that he came to know from Bindeshwari Rai (PW 2) that appellant Raj naresh gave chaff-cutter in the hand of appellant Mithilesh. From this statement pw 11, it is clear that the informant had met PW 2 and learnt about the handing over the chaff cutter in the hand of Mithilesh but why this fact was not disclosed by PW 11 in his fardbeyan at about 5.30 P. M. at the place of occurrence on the date of occurrence itself. I am not in a position to appreciate as to why this fact was disclosed for the first time on 18-5-1985 at 3.00 P. M. when his statement was recorded, by the police. The omission of this part of the prosecution story in the F. I. R. creates gave doubt as to whether the prosecution has been able to prove the charges against appellant Raj Naresh rai. It is true that conviction may be based upon solitary testimony of a single witness provided such witness is believed by the court. When the evidence of sole witness is not of that quality and no explanation has been given as to why PW 2 did not disclose this fact till 3.00 P. M. on 18-5-1985 which can compel acceptance, conviction on such solitary evidence, in my view, is not permissible. 24. As I have stated earlier, this witness was also examined under Section 164 of the Code of Criminal Procedure on 23-5-1985 which is yet another circumstance which calls for remark. 24. As I have stated earlier, this witness was also examined under Section 164 of the Code of Criminal Procedure on 23-5-1985 which is yet another circumstance which calls for remark. It was pointed out by Prinsep, J. in the will known case in Queen Empress V/s. Jadub Das (1900) I. L. R.27 Calcutta 295 that a statement of a witness obtained under this section always raise a suspicion that it has not been voluntarily made and that the section was not intended to enable the police to obtain a statement from some person and, therefore, it were to put a seal on that statement by sending in that person to a Magistrate to be examined so that he may not reside from his earlier statement. On this ground, also, this witness is not fit to be relied upon and this part of the prosecution case also can not be believed. 25. Now I will discuss the 3rd part of the prosecution story i. e. commission of the actual crime. On this point PWs 7, 8, 9, 10 and 11 are eye witnesses. PW 1 has stated in his examination before the court that he was at his Bathan to the west of Badrwa mango tree where Arun was sleeping on a cot. He saw that Madan caught hold of the head Arun and Mithilesh cut the neck with very sharp edged chaff cutter. He has also stated that Mahendra (PW 11), Jugeshwar (PW 8), Kalicharan (PW 9) also saw the occurrence. According to his statement when the neck was chopped of, PWs 8, 9 and 11 and he himself raised hulla and ran towards the place where Arun was cut. The accused persons proceeded towards west and fled in the north direction towards their houses. After the accused persons fled away, the aforesaid PW 8, 9 and 11 and he went at the place of occurrence and saw blood oozing out and sufficient blood had fallen down on the grounds. This witness is also a witness to the inquest report. This witness in para 12 of his cross-examination has said that the sun had set when the inquest report (Ext.9) was prepared. It had become dark. The S. I. of police (PW 13) had got a lantern lighted and he put his signature on the inquest report in the light of the lantern. This witness in para 12 of his cross-examination has said that the sun had set when the inquest report (Ext.9) was prepared. It had become dark. The S. I. of police (PW 13) had got a lantern lighted and he put his signature on the inquest report in the light of the lantern. He has also stated that the S. I. of police came at about 4.00 P. M. at the place of occurrence. He has also stated that the S. I. of Police came, Mahendra PW 11, kalicharan PW 9, Jugeshwar PW 8 were also there but Deoki PW 1, Bindeshwari pw 2 and Ramdeo PW 4 were not there. According to him Mahendra, kalicharan and Jugeshwar did not make statement before the police. He has stated from the place where he was present, the place of occurrence was clearly visible. According to him, he had stated to the police that Madan caught hold of the head of Arun, He had also stated before the police that chaff cutter was very sharp but the I. O. has stated in the court PW 7 Jagdish Rai had not stated before him that Madan caught hold the head of Arun. He had also not stated that the Kakut was very sharp. 26. Pw 8 Jugeshwar Rai who claims to be the eye witness and was sitting along with PW 11 Mahendra at the time of occurrence is also witness on the inquest report (Ext.9 ). This witness has stated that at the time of occurrence he was at his Bathan adjacant south to the place of occurrence and mahendra was also with him. He has stated that both of them saw that Madan was catching hold head of Arun and Mithilesh standing on the northern side of the cot facing west cut the neck of Arun with chaff cutter. According to him both of them ran towards the place of occurrence, Mithlesh said in abusive language showing the chaff cutter that he would cut both of them and then they stopped. They raised hulla that Mithlesh was fleeing away after cutting the neck. This witness also claims to have seen blood fallen out on cot and below on the ground. They raised hulla that Mithlesh was fleeing away after cutting the neck. This witness also claims to have seen blood fallen out on cot and below on the ground. According to his statement, the S. I. of police came in the evening at 4,00 P. M. He had seen the dead body and after holding inquest on the dead body, prepared in inquest report (Ext.9) on which he also put his signature. According to his statement, his Bathan was at a distance of 12 to 14 bamboo from the place of occurrence and he saw the aforesaid two accused persons standing beside the cot under Badrwa tree. He also saw that accused persons chopped of the head and fled away. He had stated to the S. I. of police that Mithlesh cut the neck of Arun with chaff cutter turning towards east side of the cot facing west. He had also stated in the court that he had stated to the S I. of Police that he and Mahendra PW 11 wore sitting in his bathan. All of a sudden, Mahendra got up. He saw Mithilesh with chaff cutter cut the neck of Arun who was sleeping on a cot and Madan Rai was holding the head. He had stated to the police that the chaff cutter was stained with blood and Kalicharan PW 9 and Jagdish PW 7 came running behind them. This fact have been contradicted by the I. O. in his statement in para 22. PW 13 has stated that Jugeshwar had not stated before him that Mithilesh was east to the cot facing to the west. He did not said regarding the site but said that mithilesh cut the neck of Arun with Kakut. 27. The learned counsel appearing on behalf of the defence has drawn my attention to the inquest report (Ext.9 ). He vehemently argued that the time mentioned in column 1 i e.16.00 hours is apparently false in view of the evidence of PW 7. From inquest report, it appears that the inquest was made at 16 00 hours on 17-5-1985 whereas PW 7 has stated that sun had already set when this inquest report was prepared and he put his signature in the light of the lantern. From inquest report, it appears that the inquest was made at 16 00 hours on 17-5-1985 whereas PW 7 has stated that sun had already set when this inquest report was prepared and he put his signature in the light of the lantern. From the statement of PWs 7 and 8, it is also clear that till 7 00 P. M. all the four witnesses, namely, PWs 7, 8, 9 and 11 were present there before the S. I. of Police but none of them disclosed the names of the assailant. The question, therefore, the consideration is as to what would be the effect of omission of the names of the assailant in the inquest report when the two witnesses PWs 7 and 8 who claim to be the eye witnesses are also the witnesses to the inquest report. I have perused the inquest report and found that in column 8. the name of Mithilesh and Madan do not figure in the body of the inquest report although they are mentioned in the F. I. R. It has come in the evidence of I. O. that when he reached the village at 4.00 P. M. he found dead body lying supine in the north suth direction on a cot. After seeing, the dead body he prepared the inquest report in three copies through carbon process. He has also stated that PW 8 Jugeshwar and PW 7 Jagdish put their signature with the endorsement that it has been prepared in their presence Thereafter on the same date at about 5.30 P. M. he recorded the fardbeyan of informant mahendra Rai. 28. It is surprising that when the inquest report was prepared in presence of PWs 7 and 8 who claim to have seen the actual occurrence committed by accused Mithilesh and Madan, what prevented them to disclose the names of accused to the S. I. of Police Column 8 of the inquest report is opinion of witnesses which reads as follows :- "opinion of witnesses as to cause of death and their signatures :-Murder has been committed by cutting neck with Kakut (chaff-cutter ). Sd/- Jugeshwar Rai, pw8. Sd/- Jugeshwar Rai, pw8. 29 This omission, in my opinion, clearly leads to the inference that by that time PWs 7 and 8 were not in a position to disclose the name of the real assailants and the names of Madan and Mithilesh were added subsequently in the F. I. R. It is not understandable as to why the names of these two appellants do not figure in the inquest report and it casts serious doubt on the veracity and authority of the F. I R. itself. The counsel for the State tried to justify this omission on the ground that the fardbeyan was recorded earlier to the inquest report. Therefore, the names of these two appellants have not been mentioned in this column but I am not satisfied with this argument no because it is clear as to whether the inquest report was earlier made or the fardbeyan was recorded earlier. The I. O. has himself stated that when he reached in the village at 4 00 P. M. he prepared the inquest report at 16.00 hours and thereafter recorded the fardbeyan at 17.30 hours. In that view of the matter it is not possible to accept the justification put forward behalf of the State counsel. 30. Now coming to the other evidence of P. Ws.9, 10 and 11. P. W.9 has stated in his evidence before the trial court that he saw Madan catching hold of the head of deceased Arun and Mithilesh cut the neck of Arun with haff-cutter. Jugeshwar Rai P. W.8, Mahendra Rai P. W.11 and Jagdish Rai p. W.7 along with him ran towards the place of occurrence but were stopped on the threat given by Mithilesh and Madan. On hulla many people came there. At the time of occurrence, this witness was in his Bathan which was situated under a tree of Khalifaji @ Narsingh Narain Singh. This witness has admitted that P. W.8 Jugeshwar Rai, P. W.12 Ram Sabadh Rai and the father of the informant are own brothers. This witness has also admitted that he did not go to his house after the occurrence and remained near the cot of Arun till 8.00 oclock in the night and there he made statement before the S. I. of police. This witness has also admitted that he did not go to his house after the occurrence and remained near the cot of Arun till 8.00 oclock in the night and there he made statement before the S. I. of police. According to his statement till 8.00 oclock, he did not disclose the names of the assailants although he was present at the place of occurrence when the S. I. of police came at 4.00 P. M. In para 12 of his evidence, this witness has stated that he did not state to the S. I. of Police that at the time of occurrence, he was sitting under the mango tree of Narsingh Narain Singh but the I. O. P. W.13 has stated in the court that Kalicharan had stated before him that at the time of occurrence, he was sitting in the orchard south west from the place of occurrence under mango tree of Narsingh Narain Singh where his Bathan was situated. 31. P. W.10 Deopati Devi who is also related to P. Ws.8 and 9 has stated that at the time of occurrence she was getting her child eased and there she was that Madan caught hold of the head of Arun and Mithilesh struct with chaff-cutter on the neck of Arun. The raised hulla. According to her statement also P. W.11 Mahendra Rai, P. W.8 jugeshwar Rai, P. W.9 Kalicharan and P. W.7 Jagdish Rai were at the Bathan, She has also stated that she saw blood on the cot. Blood had come out from the neck. According to her statement as well, the dispute was over the demand of milk at certain rate. In her cross-examination, she has stated that Mithilesh was striking with chaff cutter. Mithilesh did not hold the head of Arun with one hand. According to her evidence, she has stated before the S. I. of Police that Mithilesh caught hold of the head of Arun with one hand and cut with another. 32. The informant Mahendra Rai (P. W.11) in his evidence before the court has stated that he was in his Bathan with Jugeshwar which is just south to the Badrawa mango tree. At that time, the deceased was sitting on the cot. At the time of occurrence, he saw Madan coming to the place of occurrence. Madan caught hold the head of Arun and Mithilesh cut the neck with chaff-cutter. At that time, the deceased was sitting on the cot. At the time of occurrence, he saw Madan coming to the place of occurrence. Madan caught hold the head of Arun and Mithilesh cut the neck with chaff-cutter. Jugeshwar P. W.8 was also there. They wanted to apprehend the accused but both Mithilesh and Madan abused them and they stopped due to fear and raised hulla along with P. Ws.8 and 9. According to this witness, besides him, Deopati Devi P. W.10, Deoki Rai P. W.1, Ramdeo rai, P. W.4, Bindeshwari Rai P. W.2 and other villagers saw the occurrence. At that time P. W.7 Jagdish was also there. This witness has also stated that in the morning there was some altercation between the deceased Arun with madan and Mithilesh over the rate of milk. He has further stated that accused rajendra Rai, Ramdas Rai (since acquitted) and Raj Naresh ordered Madan and Mithilesh to cut the head of Arun within day time. He has further stated that he came to know from P. W.2 Bindeshwari that appellant Raj Naresh rai gave chaff-cutter in the hand of Mithilesh. This witness showed the place where the head of the deceased Arun was chopped of. Many villagers assembled there. The S. I. Police sent the dead body to Barh. This witness has stated that he and P. W.8 Jugeshwar Rai along with one Chowkidar and constable had gone with the dead body to the Hospital at Barh and identified the same in presence of the doctor. In his cross-examination, the witness has denied to have stated before the i. O. that P. W.9 Kalicharan Rai who is uncle was sitting in the south east corner of the place of occurrence under the mango tree of Narsingh Narain singh and has seen the occurrence but the I. O. P. W.13 has contradicted this part of his evidence before the court. 33. From the evidence of P. W.11, it appears that he had accompanied the dead body to the hospital along with P. W.8 when it was sent by the I. O. to Barh after inquest report and from the record it appears that the dead body was received in the hospital at 5.00 P. M. which is at a distance of 11 (sic)it appears from the F. I. R. If that be the position. I fail to appreciate that when this witness was present in the hospital at 5.00 P. M. , how is fardbeyan was recorded at 5.30 P. M. at the place of occurrence itself. This fact also creates some suspicion as to whether the fardbeyan was recorded on the date of occurrence at 5.30 P. M. and at the place of occurrence as alleged by the prosecution. 34. The occurrence is said to have taken place at 12.00 noon. The S. I. of Police came at 4.00 P. M. but curiously enough, none of the prosecution witnesses who were present there, namely, PWs.7, 8, 9 and 11 disclosed the names of the assailants who claim to be the eye witnesses to the occurrence. P. W.13 is the I. O. of the case who has stated that P. W.7 Jagdish was examined at 9.00 P. M. No explanation has been given on behalf of the prosecution as to why there was delay in disclosing the names of the assailants, i have already indicated above that P. W.7 and 8 were always present on the scene even at the time of inquest report. P. W.8 was not even examined on that date as appear from the evidence of the I. O. P. W.9 Kalicharan Rai was examined at 8.00 P. M P. W.10 who was also present in the village was not examined on the same day but she was examined on the next day. Even the name of P. W.10 does not figure in the F. I. R. 35. From the genealogical table given below, it appears that all the witnesses who claim to be eye witnesses are more or less interested witnesses and the members of the same family :- 36. Pw 10 Deopati Devi is the wife of Ram Ishwar Rai cousin of PWs 8 and 9. 37. It was contended on behalf of the accused that only the interested and partisan witnesses have been examined in this case who are highly interested in the conviction of the appellants. Therefore, it is not safe to rely on their statement without any corroboration from the independent witnesses. The occurrence took place in the village in the day time. It has come in the evidence that many villagers also assembled but none of them have come to support the prosecution case. Therefore, it is not safe to rely on their statement without any corroboration from the independent witnesses. The occurrence took place in the village in the day time. It has come in the evidence that many villagers also assembled but none of them have come to support the prosecution case. There is no hard and fast rule that evidence of partisan witnesses cannot be acted upon but in assessing the evidence of interested or partisan witnesses, the court must be careful. Some of the points to be taken into account by the court are whether or not there ara discrepancies in the evidence, whether or not the evidence strikes the court as genuine and whether or not the story disclosed in the evidence is true In the instant case, as I have indicated above that all the eye witnesses PWs.8, 9, 10 and 11 are members of the same family and there are number of discrepancies in this evidence. Therefore, it is highly unsafe to rely on their evidence. 38. From the point of view of degree of proof, the criminal trial can be categorised into three groups. First, when a criminal charge is mathematically proved against the accused, the matter ends there. Secondly when the evidence falls short of absolute proof or in other words the degree of proof necessary to establish the charge is lacking and consequently some scope remains for doubt, in such type of cases, the principle of benefit of reasonable doubt is invoked and lastly whether the evidence falls far short of requisite standard to establish ciminal charge, in such type of cases, the principle of benefit of doubt have no application and these are cases of clean acquittal. It is the duty of the prosecution that he must clarify and remove all suspicion which, in my view, is lacking in the present case for which benefit of doubt may be given to the appellants. 39. Apart from this, even the blood report is not on the record. It is the duty of the prosecution that he must clarify and remove all suspicion which, in my view, is lacking in the present case for which benefit of doubt may be given to the appellants. 39. Apart from this, even the blood report is not on the record. It has come in the evidence of I. O. that he sent the blood stained earth for chemical examination but the report has not been produced by the prosecution as to whether it was a human blood or not, In almost all criminal cases the blood stained earth found from the place of occurrence is invariably sent to the chemical examiner and the report along with the earth is produced in the court. If this procedure is departed from for the reasons best known to the prosecution, then the benefit should bs given to the accused. 40. It is well settled that onus is on the prosecution to prove its case. It cannot gain strength from the conduct of accused or from absence of some explanation given by the accused. In criminal case, the accused is not bound by his pleading and it is open to the accused to prove his defence even from the admission made by the prosecution witnesses and the circumstances proved in the case. In the instant case, there are many questions which remained unanswered, namely, police station is only 1 1/2 K. M. from the place of occurrence but no body went to inform the police officer there. It was contended on behalf of the State that Ram Sabadh PW 12, father of the deceased was not in the villager but certainly the other persons, other relations who claim to be the eye witnesses were there in the village, why they did not go to the police station to lodge the case. As to why the station diary entry which was made by the I. O. and on the basis of which the entire police machinery started work was not produced in the court. As I have already noticed above that PWs 7 and 8 who were present ot the time of inquest, why they did not disclose the names of the assailants. All these questions still remained to be answered by the prosecution. 41. The question may arise as to why the accused would be implicated if they have not done anything. In this connection. All these questions still remained to be answered by the prosecution. 41. The question may arise as to why the accused would be implicated if they have not done anything. In this connection. I may refer some of the observations made by the Supreme Court in the case of Shankarlal Gyarasilal dixit V/s. State of Maharashtra, A. I. R.1981 S. C.765 which reads as follows : "our judgment will raise a legitimate query: If the appellant was not present in his house at the material time, why then did so many people conspire to involve him falsely? The answer to such questions is not always easy to give in criminal cases. Different motives operate on the minds of different persons in the making of unfounded accusations. Besides, human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions. In the instant case, the dead body of a tender girl, raped and throttled, was found in the appellants house and, instinctively, everyone drew the inference that the appellant must have committed the crime. No one would pause to consider why the appellant would throw the dead body in his own house, why would he continue to sleep a few feet away from it and whether his house was not easily accessible to all and sundry, as shown by the resourceful shrinaryan Sharma No one would even care to consider why the appellants name was not mentioned to the police until quite late. These are questions for the court to consider. " 42. I must say that it is an unfortunate case in which the life of one minor boy has been lost over a very petty and trivial dispute, but on a perusal of the evidence and the circumstances of the case, I feel that the prosecution has not come out with a true version and the result is that the murderer of the boy has to go unpunished and this is yet another mis-fortune of the case but if the prosecution does not choose to put forward the true version, it is to be itself squarely blamed for the failure of the case. 43. 43. In view of the inherent improbabilities the serious omission and infirmities, the interested and enmical nature of the evidence and other circumstances, it was clear that the prosecution had miserably failed to prove the case against the appellants beyond reasonable doubt and I also find that the prosecution has not been able to establish the manner of assault fully beyond reasonable doubt. Even the genesis of the occurrence has not been proved satisfactorily. 44. I accordingly allow the appeals, set-aside the conviction and the sentences of the appellants and acquit them of the charges. The reference is discharged. The appellants in Cr. Appeal No.272/1988 Madan Rai and raj Naresh Rai are discharged from the liabilities of their bail bonds. So far as the appellant in Cr. Appeal No.307/1988 Mithilesh Rai is concerned, he is directed to be released forth-with if not wanted in any other case. Appeals allowed but death reference discharged.