Judgment Loknath Prasad, J. 1. Kartik Pandey, Shakti Pandey and Jaideo Pandey, brothers inter se, their uncle Mathura Pandey and near Gotia Sahdeo Pandey, the appellants, stand convicted under Sec. 302 read with Sec. 34 of the Indian Penal Code and each of them sentenced to undergo imprisonment for life. Feeling aggrieved, they have preferred this appeal. 2. Gita Devi PW is the wife of Vijoy Kumar Pandey the deceased, and latters brothers are Narain Pandey and Chotu Pandey PWs Their eldest cousin is Bhagirath Pandey, PW and Devnandan Pandey, PW is the son of Bhagirath Pandey. Murlidhar Pandey PW is a grand nephew of the deceased. They, as also the appellants, are residents of Village Khijar Sota, Tola Rupnadih, district Giridih. In fact, the parties are Gotias of each other, and their houses are close by. At a distance of 50 to 60 yards of those houses there is a small pond on the outskirts of the village Abadi. 3. Although the parties are closely related, but their relations had lost cordiality quite some time earlier to the occurrence because of land disputes. 4. The prosecution version, in brief, is that on 20-7-1985 at about 1 p.m. Vijay Kumar Pandey had returned to his house from the fields at about 12-15 p.m., and then left for the pond for taking bath. After about 12 minutes Gita Devi, PW had left for that pond for cleaning utensils. When she had arrived at the pind of the pond, she had seen the appellants committing crime upon Vijoy Kumar Pandey at the corner of the pond. Kartik Pandey appellant was hitting Vijoy Kumar Pandey with a brickbat, Shakti Pandey, appellant was pressing his neck, Jaidev Pandey, appellant was catching his hands, and Sahdeo Pandey, appellant his legs, and Mathura Pandey, appellant forcibly lowering the body of Vijoy Kumar Pandey into the water pond. On seeing Vijoy Kumar Pandey being dealt with in that manner, Gita Devi, PW had raised alarm. Her that alarm had brought to the spot Chotu Pandey, Devnandan Pandey and Bhagirath Pandey, PWs as also others like Prasadi Ravidas. On seeing them the appellants had left Vijoy Kumar Pandey lying inside the water of the pond and fled away. It was found that Vijoy Kumar Pandey had already died. 5. Her that alarm had brought to the spot Chotu Pandey, Devnandan Pandey and Bhagirath Pandey, PWs as also others like Prasadi Ravidas. On seeing them the appellants had left Vijoy Kumar Pandey lying inside the water of the pond and fled away. It was found that Vijoy Kumar Pandey had already died. 5. The prosecution version further proceeds that S.I. Manoranjan Prasad, PW then officer-in-charge of Dhanwar Police Station, had learnt from rumours about commission of the crime in question in the police station on 20-7-1985 at about 6-30 p.m. Accordingly, he had entered a Sanha entry and then left for Village Khijar Sota. He had arrived at the house of Gita Devi, PW at about 7-30 p.m. and found the deadbody of Vijoy Kumar Pandey lying outside of that house. He had recorded Fardbeyan (Ex. 5) of Bhagirath Pandey PW and then recorded statements of the available witnesses. He had partly inspected the spot during that night and the remaining on the following morning. He had drawn up formal F.I.R. on the basis of Fardbeyan (Ext. 5) in the police station at 10 p.m. He had brought the deadbody of Vijoy Kumar Pandey in the police station and prepared inquest report on the following day of the occurrence. He had then got the deadbody subjected to post-mortem examination. After completion of the investigating, the appellants were charge-sheeted. 6. Out of eight witnesses examined by the prosecution, Chotu Pandey (PW 2), Devnandan Pandey (PW 3), Bhagirath Pandey (PW 4) and Gita Devi (PW 5) are the alleged eye-witnesses of the occurrence. Narain Pandey (PW 1), a teacher had learnt about the crime after he had returned from duties at 2 p.m. Murlidhar Pandey (PW 7) had attested the Seizure Memo (Ext. 4) whereby four brick bats were taken into possession from the spot. S.I. Manoranjan Prasad (PW 8), as stated above, is the Investigating Officer. Dr. N. K. Verma (PW 6) had conducted post-mortem examination on the deadbody of Vijoy Kumar Pandey on 21-7-1985 at 1 p.m. and had found one lacerated wound near the right ear. He had also noticed five bruises of various dimensions on other parts of the body. All these injuries were simple caused by hard blunt object. On dissection, six ribs of right side were found fractured. Death was opined due to asphyxia because of massive pulmonary oedemo as a result of drowning. He had also noticed five bruises of various dimensions on other parts of the body. All these injuries were simple caused by hard blunt object. On dissection, six ribs of right side were found fractured. Death was opined due to asphyxia because of massive pulmonary oedemo as a result of drowning. Time elapsed since death was about 24 hours. Ext. 2 is the post-mortem report. 7. The appellants, in their examinations, had denied the prosecution allegation, an stated that they were innocent. Kartik Pandey and Shakti Pandey, appellants, both teachers, had maintained that they were at their respective schools at the time of the alleged occurrence. Although seven witnesses in support of the defence suggestion about Vijoy Kumar Pandey meeting natural death due to drowning and then of plea of alibi, were examined, but learned Counsel for the appellants has not even touched upon their evidence during the course of arguments. That was, as per learned Counsel, for the reason that the prosecution evidence brought on record is itself insufficient to connect the appellants with the offence charged. 8. Learned Counsel for the parties have been heard, and records were carefully gone through. 9. It has remained undisputed that Vijoy Kumar Pandey had died on 20-7-1985, and his deadbody was found lying in the water of the village pond. As stated above, there were quite a few blunt weapons ante-mortem injury on the deadbody, and the death was due to asphyxta because of pulmonary oedema owing to drowning. Now, according to prosecution, the appellants had committed murder of Vijoy Kumar Pandey in the manner stated above. From the side of the defence, a case of denial simplieiter was put forward. The material question for determination is to see as to if satisfactory evidence is available on record for bringing home the guilt against the appellants, 10. The occurrence had allegedly taken place on 20-7-1985 at about 1 p.m. and Fardbeyan of PW 4 recorded outside the house of the deceased same day at 7-30 p.m. On the basis of that Fardbeyan, formal F. I. R. was drawn up at 10 p. m. in the police station under Sec. 302 of the Indian Penal Code. The occurrence had allegedly taken place on 20-7-1985 at about 1 p.m. and Fardbeyan of PW 4 recorded outside the house of the deceased same day at 7-30 p.m. On the basis of that Fardbeyan, formal F. I. R. was drawn up at 10 p. m. in the police station under Sec. 302 of the Indian Penal Code. Although a copy of the F. I, R. has been shown to have been despatched through special messenger, but the special report had readied to the hands of the Magistrate on 22 7-1985, There is no explanation for that delay. The same appears to have been utilised for giving shape to the prosecution case. 11. In fact a serious doubt is there as to if the F. I. R. was really recorded on the given date and time. Eye-witness account of the crime was available and able bodied persons had witnessed the same. Still none had thought in terms of going to the police station for lodging the F. I. R. The I. 0. (PW 8) had stated that he had only heard a rumour at 6-30 p.m. on 20th of July, 1985 about the commission of crime and then had left for the spot. He could not say as to from whom he had heard in that behalf, and what was otherwise the source of the rumour. The alleged Saneha entry was also not produced at trial for showing what information the I. O. received at the police station. It is anybodys guess as to if the contents, thereof, were not in accordance with the prosecution version. Here it also deserves mentioned that although under Sec. 174 of the Code of Criminal Procedure it was incumbent upon the police to have conducted the inquest proceedings at the very place of lying of deadbody of Vijoy Kumar Pandey, but that dead body was brought to the police station and inquest report prepared on the following day there. There is no explanation for this serious lapse either. In these circumstances, there appears substance in the submission of learned Counsel for the appellants that Vijoy Kumar Pandey had met his last in mysterious circumstances, and since nobody has seen the crime committed upon him, the F.I.R. was drawn up subsequently after due deliberations and consultations. 12. PW 1 is the full brother of the deceased, and PW 4 (informant) their cousin. 12. PW 1 is the full brother of the deceased, and PW 4 (informant) their cousin. Now PW 1 had stated that the land dispute resulting in proceedings under Section 145 of the Cods of Criminal Procedure were between the informant (PW 4) and the appellants, and that he himself has no concern with that land. If that was so, it is not understood as to why Vijoy Kumar Pandey was made the victim of attack. Admittedly, the relations between the informant and the appellants were highly inimical. PW 4 has admitted that in his case under Sec. 307 of the Indian penal Code, the appellants were facing prosecution. His son (PW 3) had admitted that in earlier instituted criminal case by Kartik Pandey, appellant, he too was an accused. Therefore, the entire enmity of the appellants was either with the informant or his children. PW 4, like PWs 2 and 3, had not seen the occurrence from the beginning. The attention of these witnesses had allegedly been attracted on hearing the hulla of PW 5. She (PW 5) had the occassion to see the crime being committed upon her husband from the beginning. Still the police had not thought of recording statement of PW 5 as informant in the case, rather PW 4, an arch enemy of the appellants, had stepped forward for making his Fardbeyan (Ext. 5) and naming his all able bodied enemies in the same as culprits. 13. The success of the prosecution in the case rests on the evidence of PWs 2 to 5, the alleged eye-witnesses. The version of PWs 2, 3 and 4 was of reaching on hearing the hulla of PW 5. However, from the material brought on record it appears that PW 5 had herself not seen the occurrence. She had testified about the returning of her husband to the house from the fields at 12-30 p.m., and then going to the pond for taking bath within 15 minutes. She admitted that the pond water is not being used by the villagers for drinking and taking bath. She had also admitted that close to her house is the well, the water of which is used for those purposes of drinking and taking bath. If that was so, there was no reason for Vijoy Kumar Pandey going to the pond for getting bath. She had also admitted that close to her house is the well, the water of which is used for those purposes of drinking and taking bath. If that was so, there was no reason for Vijoy Kumar Pandey going to the pond for getting bath. Again the version of PW 5 that she had left for the pond after some time of going of Vijoy Kumar Pandey for cleaning utensils is not accepted. PW 8 (that I. O.) had admitted that neither PW 5 nor any other witness had stated before him about going of PW 5 to the pond for the purpose of cleaning the utensils. Then PW 5 had testified at trial that she had started raising hulla on reaching the pind of the pond, no sooner she had seen the appellants committing the crime. However, she was duly confronted with her previous police statement wherein raising of hulla by her from the pind was not mentioned. She had admitted that the informant (PW 4) had not attested his alleged Fardbeyan in her presence. If she was a true eye-witness, there was no impediment in her way in making statement before the police immediately after the latter had reached her house. However, she admitted that she had made her police statement on the following day. Even the I. O. has not provided any explanation about the delay in recording the statement of this so-called all important witness. Apart from these, are other infirmities also in the evidence of PW 5 warranting rejection thereof. 14. It having been found that PW 5 had perhaps not seen the occurrence, the evidence of other eye-witnesses (PW 2, 3 and 4) becomes unavailable to the prosecution also. PWs 2, 3 and 4 had testified about their reaching the spot only on hearing alarm of PW 5. If the presence of PW 5 at the spot becomes doubtful, the version of reaching PWs 2, 3 and 4 stands to be rejected. Even otherwise, the evidence of these witnesses does not carry any conviction. PWs 3 and 5 had admitted that even though they had seen the occurrence, but they had not raised any alarm. They, like PW 2, had described the time of the occurrence about 1 p.m. or shortly thereafter. But if we believe PW 5, the occurrence had already been taken place much earlier. PWs 3 and 5 had admitted that even though they had seen the occurrence, but they had not raised any alarm. They, like PW 2, had described the time of the occurrence about 1 p.m. or shortly thereafter. But if we believe PW 5, the occurrence had already been taken place much earlier. PW 4 would take the credit of sending information to the police at 3 p.m. but would not explain as to why that was done after a couple of hours. His that version has not been owned by the I. O. (PW 8). In fact PW 2 has eliminated from the spot PWs 3 and 4. He (PW 2) had deposed that when he had reached the spot on hearing alarm of PW 5, only the latter and the culprits were there, and none else. PW 2 had further stated that when he had reached, the culprits were already in the process of running away. Therefore, he himself had not witnessed the actual commission of crime committed upon Vijoy Kumar Pandey. As per his version, other eye-witnesses had reached subsequently. Then as regards evidence of PW 3, the same is equally unsatisfactory. His version that the police had prepared the inquest report on the very day of occurrence outside of the house of the deceased is in contradiction to that of the I. O. Further, from the evidence of PW 3 also it appears that the police had recorded the Fardbeyan after conducting a part of the investigation. PW 3 had stated that after the police had arrived, it had first gone to the pond and taken into possession the brick bats and subsequent thereto had recorded the F.I.R. after reaching the house of the deceased. 15. From the above analysis of the evidence of the so-called eyewitnesses (PWs 2, 3, 4 and 5) examined by the prosecution, it appears that none out of them had actually witnessed the occurrence. As stated above, PW 4, the informant, is having a direct animosity with the appellants since long. He had taken upon himself the role of becoming informant in the case and appears to have named all his able bodied opponents in the F.I.R. PWs 2, 3 and 5 are closely related to him. As stated above, PW 4, the informant, is having a direct animosity with the appellants since long. He had taken upon himself the role of becoming informant in the case and appears to have named all his able bodied opponents in the F.I.R. PWs 2, 3 and 5 are closely related to him. Die having already been cast by PW 4 by describing the appellants as culprits in the F.I.R. lodged by PW 4, the remaining (PWs 2, 3 and 4) had no option but to toe his line. That was unmindful of the fact whether their version was correct or not, and further their evidence accepted or rejected. 16. PWs 2, 3, 4 and 5, specially PW 4, had reasons to implicate the appellants in the case. None out of these PWs is natural and probable witness. Now, according to prosecutions own showing, many villagers like Prasadi Ravidas had also witnessed the occurrence. The fact stands mentioned in the F.I.R. also. However, no independent person had stepped forward in the witness box at trial to support the prosecution case. The given circumstances did require independent probation of the prosecution version, but the same is lacking. Learned Counsel for the appellants is, thus, right in asking the Court to raise adverse presumption against the prosecution for not examining Prasadi Ravidas or any other independent person as its witness. Undoubtedly, the conviction of the appellants has been recorded on insufficient grounds. At any rate, the case against them is not free from reasonable doubt, and they deserve the benefit of the same. 17. For reasons stated above, this appeal succeeds and is hereby accepted. The conviction and sentence of the appellants are set aside, and they are acquitted of the charge. 18. Mathura Pandey, appellant is on bail. He is discharged from the liabilities of his bail bonds. His co-appellants, namely, Kartik Pandey, Shakti Pandey, Jaideo Pandey and Sahdeo Pandey are still in custody. They are ordered to be set at liberty forthwith, if not required to be detained in connection with any other case.