Judgment R. N. Sahay, J. 1. This appeal arises from Sessions Trial No.107 of 1985 in which these appellants were tried for the murder of one Sfc. Hafazat. The sessions Judge, West Champaran who tried the case held appellants guilty under Sec.302/149 Indian Penal Code and under Sec.201 Indian penal Code. Appellant No.1 Bharat Prasad and appellant No.3 were individually charged under Sec.302 Indian Penal Code but they were acquitted of the said charge and instead convicted Under Sec.307/149 indian Penal Code. The sentences passed are Rigorous Imprisonment for life under Sec.302/149 and two years Rule 1 under Sec.201 Indian penal Code. As many as six appellants were also charged under Sec.27 of the Indian Arms Act. There is contusion in the judgment as the learned sessions Judge has convicted as well as acquitted the appellants who have been charged under Sec.27 Arms Act. In the main judgmeht the learned sessions Judge has held "so far Sec.27 as the allegation under Sec.27 arms Act is concerned it does not require any separate consideration. All the accused persons are, therefore, convicted there under". In the sentencing part he has observed "the accused persons who have been charged under section 27 of the Arms Act arc not separately guilty of that charge and are therefore, acquitted thereunder". The learned Sessions Judge perhaps meant tbat no separate sentence are being imposed in reipect of the said charge. 2. According to the prosecution, the occurrence consisted of two parts. The first part of the occurrence cccuneti in the very heart of Mardazwa bazar at about 4 p. m. on 3-5-1984. The second part of the occurrence took place in village Laxmipur where allegedly the dead body of Sfc. Hafazat was carried by the appellants, his body was disnumbered and attempted to be burnt. Both these places are within the jurisdiction of Maintained Police station. Mardazwa Railway station is close to Mardazwa Bazar. The dead body of the deceased was located and recovered on the next day on 4-5-1984 at Tahuti which falls in the territory of Nepal 3. The deceased was resident of village Bhuriari a village contiguous to mardazwa Bazar. The deceased had left his village for Mardazwa Bazar to purchase Sugar, Ghee etc. for the Chapthi cerernony of his daughters whose marriage had taken place few days earlier, He was accompanied by his brother Sk. Saif (P W, 11), Tarikh, Md. The deceased was resident of village Bhuriari a village contiguous to mardazwa Bazar. The deceased had left his village for Mardazwa Bazar to purchase Sugar, Ghee etc. for the Chapthi cerernony of his daughters whose marriage had taken place few days earlier, He was accompanied by his brother Sk. Saif (P W, 11), Tarikh, Md. Mansoof and Shaukat Ali They reached the shop of Prem Chand Halwai in the bazar when they saw a mob consisting of 14-15 persons including the appellants coming from the west. They were armed with various weapons like double barral gun, Garasa and Lathi. Accused Bharat Prasad ordered others to Kill Hafazat. Bharat filed aiming at Hafazat who ran towards east-west but the shot missed him. Accused jainarain then fired at Hafazat from near a hand pump. This shot hit hafazat who fell down dead. The remaining accused immediately arrived and dragged his dead body towards the Railway line and from there carried the dead bodv to Laxmipur. The deceased and his brother Sk. Saif (informant)were active members of Congress party and the accused persons were workers of the Communist Party. According to the version of the informant the accused persons had asfced the deceased to join the Communist party but the deceased turned down the request. This was tha motive alleged for the murder. The deceased had been involved in several serious cases including a case of dacoity. 4. It has not come on record as to how the police learnt about the occurrence. The informant out of fear returned home His Fardbayan was recorded at 9 p. m- In the same night at the house of Mukhiya. The Officer-in-charge mainatans S K. Sinha after recording the Fardbayan of Sfc, Saif returned without recording the statement of the witnesses. He called the informant and the other witnesses to Mardazwa Bazar the next morning. The informant and the other witnesses reached the Bazar the next morning as directed by the Officer-in-charge were the statements of the witnesses were recorded. The Officer-in-charge (P, W.12) disclosed to the informant that the dead body of Sk. Hafazat had been traced at Tehuti and they should go there. The informant, s. K. Shaif. Sk. Hakim Uddin and Sk. Akram accompanied the Officer-incharge to kauti. They found the dead body of the deceased which had been cut to places and was lying in a field in village Kauti. Hafazat had been traced at Tehuti and they should go there. The informant, s. K. Shaif. Sk. Hakim Uddin and Sk. Akram accompanied the Officer-incharge to kauti. They found the dead body of the deceased which had been cut to places and was lying in a field in village Kauti. Two empty bags of cement and sugar lay near by and places of flesh were also found. The dead body and the articles mentioned above were seized and a seizure list was prepared. 5. The autopsy of the dead body was performed by P. K. Ray on 4-5-1984 at battiah Hospital. According to post mortem report and the evidence of the doctor (P. W.8) the following injuries yere found. (i) The head from the base of neck was sharply chapped off. The head with neck was separately present. (ii) Both the legs right and left from the knee joint was sharply chapped off and was produced separately from the body. (iii) Incised wound 21/2 x1* bone deep on the right side of fore-head, (iv) The incised wound 21/2 x1/2 skin deep on the back off head. (v) There were multiple circular lacerated wounds with charred margin 1/10" in diameter of each situated in back of chest and right shoulder joint. (vi) One bruise on front of chest 21/2 x2". During dessaction one puliat was recovered on the back of chest which was sent to P. S. under sealed cover. Time elapsed fince death and post mortem examination was 36 hours. All the injuries were anti mortem. Injury Nos.1, 2, 3 and 4 were caused by sharp cutting weapons, No.5 by fire arm and No.6 by hard and blunt substance such as lathi The doctor did not find any scratch mark on the body The evidence of the doctor clearly establishes that it was a case of homocide. 6. In the trial, as may as 12 witnesses were examined on behalf of the prosecution m support of the charges. There witnesses were also examined on behalf of the defence. 7. The main occurrence which took place on Mardazwa Bazar was witnessed by Sk. Makhful (P. W.1 ). S. K, Mahboob (P. W 2) S. K. Staukat ali P. W.7 Md. Tarique (P. W.9) and Sk. There witnesses were also examined on behalf of the defence. 7. The main occurrence which took place on Mardazwa Bazar was witnessed by Sk. Makhful (P. W.1 ). S. K, Mahboob (P. W 2) S. K. Staukat ali P. W.7 Md. Tarique (P. W.9) and Sk. Saif (P. W.11) No other witness from Mardazwa Bazar was examined, although occurrence took place at 4 p. m. in the Bazar itself where there were several shops. 8. According to the evidence of Sk. Makhful (P. W.1) he saw the accused persons coming from the west. All the appellants except Fida brinda and Bahrain were armed with double barrel gun. Fida and Baliram had Garasa while Binda had a lathi. The first shot was fired by Bharat. Sk. Hafazat escaped unhurt. The second short was fired by Jainarain which hi hafazat. Hafazat ran towards east, He fell down. Two of the appellants whose name is not disclosed took Hafazat towards the Railway line dialing him the shop keepers closed their shops. This witness is nephew of the deceased the witness has stated that the appellants Bharat, Shyamsundar, Durgesh are sons of appellants Balram. The witness has stated that Laxmipur is at a distance of 4 Bighas from Mardazwa Bazar. Mardszwa Hazir Railway station is 90 yards from the place where Hafazat fell down. The witness has deposed that there were several shops and houses near the place c f occur rence. His statement was recorded by the police on the next day. The witnesses denied the suggesion that Hafazat was not fired at Mardazwa Bazar he also denied the suggestion that since Jainarain and Bharat bad filed a complaint against the police officer, they had been implicated out of grudge the next witness Sk Mahboob (P. W.2) has deposed on similar lines but has further added that Bharat had also assaulted Hafazat by Garam This witness is also related to the deceased. He did not disclose about the incident to any body in the house of Hafazat or to the Mukhia. The conduct of the witness appears to be un-natural. He being a relation of the deceased must have informed the family members of the deceased and the Mukhia if he had really witnessed the occurrence. He is the only witness to say that bharat had also assaulted the deceased by Garam. I do not think, this witness can be relied upon. He being a relation of the deceased must have informed the family members of the deceased and the Mukhia if he had really witnessed the occurrence. He is the only witness to say that bharat had also assaulted the deceased by Garam. I do not think, this witness can be relied upon. Shaukat AH (P. W.7) has corroborated the testimony of bharat had assaulted the deceased with Garasa on the states having stated before the police that p. W.1 In cross examination he state having before the police that he did net meet any body after the occurrence and hence be, did not help about the occurrence to any body. He did not inform-Mukhia either. He however, disclosed the occurrence to his brother and neighbours who are not witnesses m this case. According to his own testimony, he concealed himself m a shop at the time of firing and thereafter ran away from the place He is unable to say whether the shot fired by Bharat hit the deceased or not. This witness, in my opinion is equally an unreliable witness. Mr. Tarique (P. W.9)has supported the evidence of P. W.1. He further added that Bharat assaulted hafazat by the Gartwa held by Balram. He has stated that after Hafazat fell, he concealed himself in between the shops of Sheochand and Kashim. The evidence of the informant has already been (Para 3) noticed in the earlier part of the judgment while stating the prosecution case. 9. An important witness of this case is Rajendra Prasad (P, W.4) He is resident of Laxmipur This witness has deposed that in the evening of the occurrence as saw the dead body of Sk. Hafazat from his darwaja. The dead body had been kept beneath a Khire tree in the orchard of Bharat. He went near the dead body where he gathered that the accused persona who were standing near the dead body intended to burnt dead body The witness forbade them from burning the dead body of a muslim. He also saw faggots collected near the dead body. Thereafter the witness left the place The statement of the witness was recorded after two days. He belongs to the congress party. He did nc t inform the Mukhiya or the Surpanch about what he bad seen. He also saw faggots collected near the dead body. Thereafter the witness left the place The statement of the witness was recorded after two days. He belongs to the congress party. He did nc t inform the Mukhiya or the Surpanch about what he bad seen. The place where the dead body had been kept was not shown to the Investigating Officer by this witness. Kameshwar Prasad (P. W.5) belonged to village Laxmipur, He heard about the firing in his village and proceeded to Murdazwa. On the way he saw accused persons carrying the dead body of Hafazat on a cot. The dead body was carrid to the orchard of Bharat where attempts were made to bura it but the witnesses warned them. The dead body was kept on ground. Fida and Bharat chapped of the head of Sk. Hafazat. Balram and Fida chopped the bands and legs. He does not remember whether he told to any body what he had seen. The statement of this witness wss recorded by the police on 5-5-1984. The witness is own brother of accused Nagnarain. Sk. Hasmuddin (P. W.3)is the witness of the seizure of the dead body of the deceased. Empty bags and rapes were also seized in presence of this witness. The witness has asserted that he had identified the dsad body which was of Sk. Hafazat. 10. Binod Bihary Sinha (P W.12) was the Investigating Officer of the case. He has deposed about various steps taken by him in course of the investigation. He has not stated whether any information was received by him with regard to the occunerce. He has simply stated on 3-5-1984 he had recorded the Fardbayan of Sk, Saif at the darwaja of Mumbai at 9 p. m. He took the statement of the witnesses on the next day at Mardazwa Bazar. On the next day, he learnt that a dead body has been found in the Tahuti in Nenal. He proceeded to Tahuti along with the witnesses. He had inspected the place of occurrence at 11.45 p. m. on 3-5-1984. He found copious blood in the ploughed field of Rambriks Mahto. The blood stained soil was seized. The Mardazwa Railway Station was 100 yards from the said place. He alse. found blood stains near the pan Gungti of Abbas (not examined) he found dragging mark tight from the place of occurrence to the gungti. He found copious blood in the ploughed field of Rambriks Mahto. The blood stained soil was seized. The Mardazwa Railway Station was 100 yards from the said place. He alse. found blood stains near the pan Gungti of Abbas (not examined) he found dragging mark tight from the place of occurrence to the gungti. He lias stated that the deceased was accused in numerous criminal cases. He has admitted that he did not record the statement of any witness from Mardazwa Bazar. 11. The learned Sessions Judge, in his judgment under appeal, after stating the prosecution case has come to the defence case and the various infirmities in the prosecution evidence as high-lighted by the defence counsel. The learned Sessions Judge, after referring the F. I. R. observed that the story of F. I. R. has been fully supported by the witnesses and that Hafazat had received gun injury at Mardazwa Bazar was a "clear indication of the fact that there was some object which was common to the accused and they were determined to prosecute that object and it is on account of that fact that and inspite of fleeing away of the deceased Cowards east another gun shot was fired by Jainarain which hit him from behind and he fell down in the field of rampnt". The (carried Sessions Judge was of the opinion that the murder was committed at Mardazwa Bazar itself. The leatned Sessions Judge has accepted the evidence of three witnesses who have deposed that the dead body of Hafazat was taken to Laxmipur in the orchard of Bharat where an attempt was made to burn it. The learned Sessions Judge has held that there was good reasons why no witness from the Bazar was examined by the prosecution. The reasons, according to the learned Sessions Judge was that it was a case of brutal murder which must have caused panic among the people of the piace and hence no body has come forward to support the prosecution story. The learned Sessions Judge has held that all the material witnesses were natural witness and all of them had left their home together an arrived at mardazwa Bazar together. The alleged motive for the murder was accepted by the learned Sessions Judge. 12. The learned Sessions Judge has held that all the material witnesses were natural witness and all of them had left their home together an arrived at mardazwa Bazar together. The alleged motive for the murder was accepted by the learned Sessions Judge. 12. The crucial question for consideration is whether the finding of the learned Sessions Judge for holding the appellants guilty is sound and deserves to be upheld in the light of the evidence on record. 13. I have referred all the material parts rf the evidence on which the prosecution case is based. The first striking feature of the case is that no witness from Mardazwa Bazar was produced by the prosecution although occurrence had taken place at about 3 p. m. in a busy market place, we do not find any satisfactory explanation for this. The only explanation that can be advanced is that the investigation of the case was utterly worthless. It does not appear from the record whether the case had been supervised by any superior police officer. 14. It also appears that no body bothered to send any information about murder, although all the material witnesses were related to the deceased. How the police arrived there, also misterious. It is to be kept in mind that we are dealing with a case involving large number of accused persons. Admittedly there existed a political rivalry between the deceased and the accused persons. Hence, the evidence has to be weighed with utmost caution. The mam role has been assigned bv Jainarain and Bharat According to the evidence, the deceased after being hit with the shot of Jainarain fell down in the field of Rambrich Mahto. The Investigating Officer has also stated that blood was found there but there is no witness of this fact, nor there is evidence that blood was sent for chemical examination. There is evidence that dead body of Hafa/at was dragged to a considerable distance by the accused persons but according to the post-mortem Report, no scratch mark was found on the body of the deceased. The absence of scratch mark is a matter which cannot be lightly blushed aside has been done by the learned Sessions Judge. The medical evidence clearly speaks that chopping of neck and legs were all ant mortem. The absence of scratch mark is a matter which cannot be lightly blushed aside has been done by the learned Sessions Judge. The medical evidence clearly speaks that chopping of neck and legs were all ant mortem. This fact effectively destroys the testimony of the witnesses who have stated that head and legs was chopped of in the orchard of Bharat. In that case, the injuries would have been postmortem and not anti-mortem. This clearly lead to the conclusion that the occurrence had not taken place as alleged by the prosecution witnesses. It cannot be denied that some occurrence had taken place at Mardazwa Bazar but it is also clear that the witnesses have not disclosed true a Courts tacts It may be, they had not witnessed the occurrence or they have left the place before the entire occurrence had taken place, 15. The learned Sessions Judge has not properly scrutinised the evidence and it appears that he found the appellants guilty only because it was a case of cold blood murder. It has come in evidence that the deceased had a bad anticident and he was involved in may serious oases. The motive alleged by the prosecution, in my opinion, is not established, although, it is not necessary for the prosecution to prove motive for the commission of a crime. 16. To sumup, non-examination of any witness from Mardazwe Bazar is a serious lacuna in the prosecution case, in absence of any cogent explanation. Secondly the post-mortem report completely demolishes the case of the prosecution. It is also possible that some of the accused might have been falsely roped. In absence of corroboration of the story disclosed by the prosecution witnesses who are related to the deceased, it would be hazardous to up-bold the conviction of the appellants in the face of shaky and un-trust-worthy evidence on record. The case against the appellants is not proved beyond all reasonable doubt and hence they untitled to be acquitted of all the charges. 17. This appeal is accordingly allowed and the conviction of the appellants set-aside. All the appellants except Jainarayan are on bail. Jainarayan is ordered to be released from custody forth-with, if not wanted in any other case. The remaining appellants are discharged from their bail bonds. It is ordered accordingly. Appeal allowed.