Judgment N.P.SINGH, J. 1. These three appeals arise out of the same judgment and order and as such they were heard together and are being disposed of by this common judgment. 2. Appellants Jag Narain Rai, Muni Rai, Barmeshwar Rai, Udaya Rai and Gopal Pandey have been convicted under Sec. 302 read with Sec. 34, Secs. 201 and 364, I.P.C. and they have been sentenced to undergo imprisonment for life under Sec. 302, I.P.C., three years under S.201, I.P.C. and 10 years under Sec. 364, I.P.C. Appellants Indradeo Rai, Adalat Ram, Amin Rai, Mosafir Ram and Bhagera Ram have been convicted under Secs. 302/149, 201 and 364, I.P.C. and sentenced to imprisonment for life under Sec. 302/149, I.P.C., three years under Sec. 201, I.P.C. and 10 years under Sec. 364, I.P.C. Appellants Mosafir Ram, Bhagera Ram, Jag Narain Rai, Muni Rai, Barmeshwar Rai and Udaya Rai have been further convicted under Sec. 147, I.P.C. and sentenced to undergo R. I. for two years each. Appellants Indradeo Rai Adalat Ram, Amin Rai and Gopal Pandey have been further convicted under Sec. 148, I.P.C. and sentenced to undergo R. I. for three years. Appellants Indradeo Rai and Amin Rai have also been convicted under Sec. 27 of the Arms Act and sentenced to undergo R.I. for three years. The sentences have been ordered to run concurrently. 2A. On 25-5-1988 at about 9 p.m. the informant Ram Suresh Rai, P.W.8 lodged the F.I.R. (Ext. 2) at Piro Police Station stating therein that on that day in the night at about 8 p.m. he was returning to his home from the Milk Booth along with his father deceased Ram Narayan Rai after supplying the milk. His father Ram Narayan Rai was going ahead of him at some distance. When his father reached near the house of appellant Jag Narain Rai, suddenly appellants Jag Narain Rai, Muni Rai , Barmeshwar Rai, Udaya Rai and Anil Rai appeared there and surrounded the deceased Ram Narain Rai. Appellant Anil Rai was armed with country made pistol and rest of the appellants were armed with lathi. Thereafter, appellants Indradeo Rai armed with a Gun, Adalat Rai, Sulah Rai since deceased and Gopal Pandey a relation of appellant Jag Narain Rai armed with Bhala. Mosafir Rai and Bhagera Ram armed with lathi emerged from the house of the appellant Jag Narain Rai. Thereafter, appellants Indradeo Rai armed with a Gun, Adalat Rai, Sulah Rai since deceased and Gopal Pandey a relation of appellant Jag Narain Rai armed with Bhala. Mosafir Rai and Bhagera Ram armed with lathi emerged from the house of the appellant Jag Narain Rai. Then appellant Jag Narain Rai, Barmeshwar Rai, Muni Rai, Udaya Rai and Anil Rai bodily lifted his father. Meanwhile, the informant Ram Suresh Rai also reached there and protested, whereupon the appellants chased to assault him but he ran away from there raising alarm. On his alarm his uncle Tej Narain Rai, P.W.7 and cousin Gajadhar Rai P.W. 5 and other villagers reached there but they could not dare to come to the rescue of Ram Narain Rai. Appellants Jag Narain Rai, Muni Rai, Barmeshwar Rai, Udaya Rai and Gopal Pandey dragged his father inside the house of appellant Jag Narain Rai and remaining appellants stayed at the entrance of the house of appellant Jag Narain Rai. When the informant and other villagers tried to enter inside the house, the appellants Anil Rai and Indradeo Rai fired two shots from their respective fire arms and threatened to kill them. The informant and the villagers could not dare to go inside the house out of fear. The informant Ram Suresh Rai apprehended that the appellants had abducted his father in order to kill him due to enmity on account of land dispute. The informant Ram Suresh Rai rushed to the police station where he lodged F.I.R. before the Officer-in-charge Dilip Kumar P.W. 10, on the basis of which a case under Sec. 364/ 34, I.P.C. was registered. 3. The officer-in-charge P.W.10 Dilip Kumar along with police force rushed to the place of occurrence and searched the house of appellant Jag Narain Rai and recovered a country made pistol and arresed appellants Indradeo Rai, Barmeshwar Rai, Udaya Rai and one Satyendra Pandey who were hiding in one of the rooms of the house and remanded them in a case under Sec. 27 of the Arms Act. 4. The next morning the Investigating Officer P.W. 10 again visited the place of occurrence and recovered the dead body of Ram Narain Rai which was concealed in a bush situated in the back side of the house of appellant Jag Narain Rai. The Investigating Officer prepared inquest on the dead body and sent the same for post mortem. 4. The next morning the Investigating Officer P.W. 10 again visited the place of occurrence and recovered the dead body of Ram Narain Rai which was concealed in a bush situated in the back side of the house of appellant Jag Narain Rai. The Investigating Officer prepared inquest on the dead body and sent the same for post mortem. There after, Secs. 302/201, I.P.C. were added. The apprehended appellants mentioned aforesaid were remanded in this case. 5. After the chargesheet and cognizance, the case was committed to the court of sessions for trial. 6. The defence of the apellants was that they were innocent and had committed no offence and had been falsely implicated in this case on account of previous grudge and enmity. 7. The prosecution examined in all ten witnesses at the trial, out of whom P.W.5 Gajadhar Rai, P.W.7 Tej Narain Rai and P.W. 8 Ram Suresh Rai, informant, are the eye witnesses to the occurrence P.W.1 Parsuram Rai, P.W. 2 Binay Shankar Rai and P.W.4 Mesh Sharma are eye witness of the part occurrence. P.W. 3 Kesho Rai is witness on the inquest. P.W. 6 Srikant Rai son of the deceased is a hearsay witness. He arrived at the village after the occurrence and came to know that the appellants had committed the murder of his father P.W.9 Dr. Ram Kishore Singh has held autopsy on the dead body of the deceased and has proved post mortem examination report (Ext. 3). P.W.10 Dilip Kumar is Investigating Officer of this case. 8. On consideration of the evidence, the trial Court convicted the appellants in the manner as mentioned in the preceding paragraph. 9. Shri Akhileshwar Prasad Singh, learned counsel for the appellants has contended that the appellants have been convicted more on surmises and conjectures than on proper appreciation of evidence on record by the trial court. There is no direct or circumstantial evidence to prove the guilt of the appellants. The various links in the chain of circumstantial evidence is not complete in this case so as to rule out every reasonable hypothesis of the guilt of the appellants. The circumstances as alleged by the prosecution has no proximity to the actual occurrence. There is substance in the contention of Shri Singh. 10. The various links in the chain of circumstantial evidence is not complete in this case so as to rule out every reasonable hypothesis of the guilt of the appellants. The circumstances as alleged by the prosecution has no proximity to the actual occurrence. There is substance in the contention of Shri Singh. 10. It is evident from the evidence of informant Ram Suresh Rai P.W. 8 that when the appellants bodily lifted his father and dragged him inside the female apartment of the house of appellant Jag Narain Rai, he protested at the high-handedness of the appellants and raised alarm upon which his cousin Gajadhar Rai P.W. 5 and his uncle Tej Narain Rai P.W. 7 rushed to the place of occurrence and saw the occurrence. P.W. 1 Parsuram Rai, P.W.2 Bijay Shankar Rai, P.W. 3, Kesho Rai and P.W. 4 Umesh Sharma and other villagers also arrived there and the informant Ram Suresh Rai, narrated about the occurrence to them they found Indradeo Rai, Bhagera Ram, Mosafir Ram, Adalat Ram and Sulah Ram since dead standing with fire arms at the Darwaza of appellant Jag Narration Rai and the main entrance of the house was closed. The villagers and witnesses kept watch on the house of the appellant Jag Narain Rai while informant Ram Suresh Rai and his uncle Tej Narain Rai P.W.7 and one Kesho Rai went to the Piro Police Station which was situated at a distance of 4 k.m. from the place of occurrence and the informant lodged the F.I.R. which was recorded by Dilip Kumar P.W. 10 the Investigating Officer of this case. After recording the F.I.R. of the informant, the Officer-in-charge P.W.10 Dilip Kumar rushed to the place of occurrence with police force and recorded the statement of five witnesses and made a search of the house of appellant Jag Narain Rai, but curiously enough neither the victim Ram Narain Rai, nor any blood mark was found there. A country made pistol was, however, recovered and appellants Indradeo Rai, Barmeshwar Rai, Udaya Rai and Satyendra Pandey were found concealed in a room and he arrested and remanded them in a case under the Arms Act. Thereafter, the Officer-in-charge P.W.10 Dilip Kumar returned to the Piro police station deputing some constable to keep guard on the house of appellant Jag Narain Rai. Thereafter, the Officer-in-charge P.W.10 Dilip Kumar returned to the Piro police station deputing some constable to keep guard on the house of appellant Jag Narain Rai. The house of the appellant Jag Narain Rai was also kept under watch by the prosecution witnesses and the villagers. 11. It may be mentioned here that the house of Parsuram Rai P.W. 1 was situated at a distance of 10 steps from the house of appellant Jag Narain Rai. The house of the informant was situated at a distance of 200 yards and the house of P.W. 3 Kesho Rai was situated at a distance of 300 yards and the house of Dharikahan Rai where P.W. 4 Umesh Sharma resided was also at a distance of 150 yards from the house of appellant Jag Narain Rai. The house of appellant Jag Narain Rai was under the constant watch by the witnesses and police personnel deputed by the Investigating officer , P.W. 10. Therefore, there was no occassion for the appellants to take out the dead body of the deceased from the house of appellant Jag Narain Rai. But surprisingly enough, when the Investigating Officer, P. W. 10 Dilip Kumar arrived in the village in the next morning he found the dead body of Ram Narain Rai concealed in a bush in the back side of the house of appellant Jag Narain Rai. The recovery of dead body is highly suspicious especially when the house of appellant Jag Narain Rai was kept under strict guard by the police and villagers and the same was visible from the house of the informant as well as other PWs. There is nothing to connect the appellants that they had thrown the dead body in the bush. 12. The informant P.W. 8 has admitted that his father deceased Ram Narain Rai was accused in several cases of theft. Therefore, the possibility of the deceased being killed elsewhere cannot be ruled out. 13. Moreover, there is no reliable evidence that at the alleged time of occurrence the deceased was returning home after supplying milk at the Milk booth. P.W. 2 Bijay Shankar Rai has deposed that the alleged occurrence took place on 30-5-1988 which is not the prosecution case. Therefore, the possibility of the deceased being killed elsewhere cannot be ruled out. 13. Moreover, there is no reliable evidence that at the alleged time of occurrence the deceased was returning home after supplying milk at the Milk booth. P.W. 2 Bijay Shankar Rai has deposed that the alleged occurrence took place on 30-5-1988 which is not the prosecution case. He, however, has said that he maintained a register of milk which was supplied at his milk booth and name of supplier of milk, the quantity supplied and the price paid to the supplier was maintained in the register. The informant Ram Suresh Rai P. W. 8 has deposed that a milk card had been issued to the milk suppliers at the Milk Booth and in the milk card, date, quantity of milk supplied and the price paid were regularly mentioned. But no such milk card ever, produced by the informant P.W. 8 Ram Suresh Rai before the Investigating Officer nor the Investigating Officer examined the Milk register of the milk booth. The informant P. W. 8 has also deposed that on the alleged date of occurrence he had gone to the milk booth to take the payment of milk supplied but he has not been able to say that how much milk was supplied and what price was paid to him. The evidence of the informant P.W. 8 is against the natural human conduct because the supply of milk and price received was so connected with the alleged incident that no one could forget that The ignorance shown by the informant and the laches on the part of Investigating Officer in not examining the register at the milk booth cast a serious reflection on the prosecution case that the deceased in fact was returning home after supplying the milk at the Milk Booth . 14. The refusal by the P.W. 10 the Investigating Officer to remand appellants Indradeo Rai, Muni Rai, Barhameshawar Rai, Udai Rai and Satyendra Pandey in a case under Secs. 364/34,I.P.C. who were immediately arrested after loding the F.I.R. is another circumstance to doubt the prosecution case that the deceased was abducted by the appellants. Right from the time of occurrence the house of appellant Jag Narain Rai was kept under watch by the P.Ws. 364/34,I.P.C. who were immediately arrested after loding the F.I.R. is another circumstance to doubt the prosecution case that the deceased was abducted by the appellants. Right from the time of occurrence the house of appellant Jag Narain Rai was kept under watch by the P.Ws. and the villagers the P.W. 10 Dilip Kumar the Investigating Officer of the case had immediately arrived at the P.O. and had searched the house but neither the deceased or any blood mark was found there. A country made pistol was found, however the Investigating Officer had therefore rightly remanded the apprehended persons in a case under the Arms Act. Absence of any objective evidence of abduction in the raid conducted by P.W. 10 the Investigating Officer in the house of appellant Jag Narain Rai falsify the prosecution case that the appellants had abducted the deceased. 15. The other circumstance against the prosecution case is that the alleged occurrence took place at about 8 p.m. in the night but there is nothing in the F.I.R. and the evidence of the witnesses about the source of identification of the appellants. P.W. 1 Parsuram Rai has no doubt stated that the night of the occurrence was a moon lit night. It is true that the identification of some known persons is possible in moon lit night from close distance, but the identification of a group of ten persons in the moon-lit night, however, is not possible from some distance. Therefore, the testimony of the prosecution witnesses about the identification of the appellants in the commission of alleged offence without aid of any light does not inspire confidence. 16. It is also evident from the evidence of the witnesses that large number of villagers had assembled at the place of occurrence and had seen the occurrence. But no independent witness has come to support the case of prosecution. P.W. 1 Parsuram Rai and P.W. 4 Umesh Sharma are hostile and inimical to the appellants. The relation between appellant Jag Narain Rai and Parsuram Rai P.W. 1 was strained over the refusal by the appellant Jag Narain Rai to discharge the refused water of the house of Parsuram Rai P.W. 1 through his Sehan. Appellant Jag Narain Rai had also opposed the appointment of P.W.4 Umesh Sharma in the College. The relation between appellant Jag Narain Rai and Parsuram Rai P.W. 1 was strained over the refusal by the appellant Jag Narain Rai to discharge the refused water of the house of Parsuram Rai P.W. 1 through his Sehan. Appellant Jag Narain Rai had also opposed the appointment of P.W.4 Umesh Sharma in the College. P.W. 4 Umesh Sharma was residing at the Darwaza of one Dharikahan Rai with whom appellant Bhagera Ram had litigation. It also appears that appellant Muni Rai had deposed in the said case in favour of Bhagera Ram against Dharikshan Rai. However, P.W. 4 Umesh Sharma has admitted in his evidence that the police was in the village for the whole night. There is material contradiction in the evidence of P.Ws. 1 and 4. The attention of P.W.1 Parsuram Rai as well as P.W.4 Umesh Sharma was drawn to their earlier statements made before the police to the effect that they had not disclosed to the Investigating officer, P.W. 10 about the disclosure of the names of those accused persons who were alleged to have carried the deceased inside the house and had removed the victims inside the house. The Investigating officer P.W. 10 has stated in his evidence that neither P. W. 1 nor P.W. 4 had disclosed that P.W. 8 informant Ram Suresh Rai had disclosed the names of those accused persons to them. 17. P.W. 5 Gajadhar Rai is son of P.W. 7 Tej Narain Rai who is brother of the deceased. They are interested witnesses. They are tutored witnesses. No doubt it is settled that relationship by itself is no ground to discard and disbelieve the evidence of a witness, if it is otherwise found to be consistent and reliable. The evidence of P.Ws. 5 and 7 is not corroborated by any reliable evidence. Therefore, no reliance can be placed on the testimony of P.Ws. 5 and 7. 18. The medical evidence of Doctor P.W. 9 and post mortem report (Ext. 3) clearly go to show that the time of occurrence as alleged by the prosecution is incorrect as rigor mortis was found present on the upper limbs and absent on the lower limbs of the deceased. It is well settled that the rigor mortis starts within 2 to 4 hours after the death and fully sets in between 16 to 24 hours. It is well settled that the rigor mortis starts within 2 to 4 hours after the death and fully sets in between 16 to 24 hours. The rigor mortis is an important factor to assess the time of the death of the deceased. The on set of rigor mortis starts from the upper limbs and it starts disappearing from lower limbs. It is evident from the medical evidence of Doctor P.W. 9 that he held autospy on the dead body of the deceased at 1 p.m the next day of the occurrence. The presence of rigor mortis on the upper limbs of the deceased thus indicates that the deceased was done to death at about 9 a.m. on the day when post mortem was held. The medical evidence of Doctor P.W. 9 and post mortem report does not help the prosecution case in any manner. 19. As regard the accusation against appellant Gopal Pandey is concerned, it is falsified by the eye-witnesses P.Ws. 5, 7 and 8. It is evident from the evidence of P.W. 10 that one Satyendra Pandey was arrested along with three others from the house of appellant Jag Narain Rai and after the arrest P.Ws. 5, 7 and 8 stated before him that Satyendra pandey was real culprit but by mistake the name of appellant Gopal Pandey had been mentioned in the first information report. The evidence of Investigating Officer P.W.10 clearly shows that P.Ws. 5, 7 and 8 had not identified appellant Gopal Pandey and had named him as an accused in utter confusion. It is also evident from the evidence of Investigating Officer P.W.10 that no prayer was ever made by him for issue of any process against appellant Gopal Pandey . Therefore, there was no justification for the Investigating Officer to send up appellant Gopal Pandey to face the trial in this case. In view of material contradiction in the evidence of witnesses P.Ws. 5, 7 and 8 who are eye witnesses, no reliance can be placed on the testimony of the P.Ws. about the participation of appellant Gopal Pandey in the commision of alleged offence. 20. On the careful consideration of the case and the evidence on the record, the conviction and sentence of the appellant cannot be sustained. Accordingly, they are set aside and in the result these appeals are allowed. about the participation of appellant Gopal Pandey in the commision of alleged offence. 20. On the careful consideration of the case and the evidence on the record, the conviction and sentence of the appellant cannot be sustained. Accordingly, they are set aside and in the result these appeals are allowed. The appellant Udaya Rai who is in custody is directed to be set at liberty forthwith, if not wanted in any other case. The appellants who are on bail are exonerated from the liability of the bail bond. 21. B. N. SINHA , J. : - I agree. Appeals allowed.