Judgment Om Prakash, J. 1. Appellant Bauwalal Mandai has been convicted for the offence punishable u/s. 302, I.P.C. for murdering his elder brothers wife Shukni and has been sentenced to imprisonment for life. He has further been convicted for the offence punishable u/s. 323, I.P.C. for causing voluntarily hurt to her son Nandlal and has been sentenced to undergo rigorous imprisonment for one year on such court. The sentences have been ordered to run concurrently. 2. Briefly stated, prosecution case in that on 13.11.1975 deceased Shukni Devi was getting paddy harvested from her field situated north of the her house in village Sahpur Tola Navipur, P.S. Nirmaly District Saharsa. At about 4 P.M. appellant Bauwalal armed with Khami in company of his wife and Harilal Mahto who was armed with lathi and Soni Mahto who had a bhala, arrived there and they surrounded Shukni. Appellants wife cought hold of Shukni and the appellant inflicted a Khanti blow on the head of Shukni and she fell down injured. On her fall Sonai Mahto inflicted a Bhala blow on her Kanpati causing injury. Shukni succumbed to her injury caused by Khanti. Thereafter Shuknis son Nandlal Mandai (P.W. 3) rushed to rescue his mother. But he was assaulted by means of lathi by Harilal. Thereafter the appellant and Sonai Mahto also assaulted him by means of their respective weapons. Nandlal fell down injured. The alarm raised attracted Gyan Chandra Das (since dead), Sah Nasruddin and Suraj Sah (P.W. 1) who witnessed the occurrence and raised alarm loudly and the assailants escaped. 3. According to the prosecutions case, Shukni had dispute with the appellant with regard to the above field since long. A title Suit was decreed in her favour and she had grown the paddy crop in question. 4. Police recorded fardbeyan of Panchi Mandal, a brother of the deceased, on the same date at 23 hours and instituted a case against the four named in the fardbeyan. But after investigation Police submitted charge-sheet only against the appellant. In due course, the Additional Sessions Judge, Saharsa, tried the appellant and found him guilty and sentenced him, as above. 5. In his statement u/s. 313, Cr. P.C. the appellant has denied the allegation against him. The defence case is that the informant got Shukni murdered in order to grab her property and the appellant has been falsely implicated on account of enmity. 6. 5. In his statement u/s. 313, Cr. P.C. the appellant has denied the allegation against him. The defence case is that the informant got Shukni murdered in order to grab her property and the appellant has been falsely implicated on account of enmity. 6. Evidence of P.W. 6 Panchi Mandal, the informant, shows on the date of occurrence at about 4 P.M. his sister, Shukni was getting paddy from the field near her house harvested when appellant Babuwalal along with his wife and Sonai Mahto and Harilal arrived and surrounded Shukni in the field. Appellants wife cough hold of Shukni and appellant Babuwalal inflicted a Khanti blow on her head (Matha) consequently, Shukni fell down. Thereafter Sonai Mahto inflicted a bahla blow on fallen Shukni. She died instantaneously. When Shuknis son P.W. 3 Nandlal came to her rescue the appellant and his companion assaulted him by means of Khanti, Bhala and Lathi. Evidence of Shuknis son Nandlal Mandal is to the same effect. 7. But evidence of P.W. 1 Suraj Sah, a witness, named in the F.I.R. as an eye witness of the occurrence, does not speak of any of the wife of the appellant, Sonai Mahto and Harilal. He simply says that when Shukni was getting the paddy of her field harvested by labourers, appellant Babuwalal arrived there with a Khanti in hand and inflicted a Khanti blow on her head causing a fracture and leading to her fall. P.W. 3 Nandlal arrived running and he, too, was assaulted by the appellant by means of Khanti leading to his fall. Shukni died instantaneously P.W. 1 does not refer to the wife of the appellant, Sonai Mahto or Hari Mahto in any connection in her entire examination in Chief. Thus the solitary F.I.R. eye witness examined does not support the informant and his case. P.W. Swadeshi Mandai, P.W. 4 Uchitlal Mandal and P.W. 5 Kusumlal Mandal a son of the informant Panchi Mandai, also speak of assault by Babuwalal alone. Thus they do not corroborate P.Ws. 6 and 3 i.e. the informant and Shuknis son. On the other hands each of P.Ws. 2 and 4 says in his cross examination in plain words that he did not see any body other than appellant Babuwalal indulging in assault. 8. P.W.2 says in his cross examination that he does not remember if the appellant ever got proceeding u/s. 107, Cr. On the other hands each of P.Ws. 2 and 4 says in his cross examination in plain words that he did not see any body other than appellant Babuwalal indulging in assault. 8. P.W.2 says in his cross examination that he does not remember if the appellant ever got proceeding u/s. 107, Cr. P.C. initiated against him in 1975 or the appellant ever lodged a case u/s. 379, I.P.C. against him. It is surprising indeed. It strongly suggests that he is concealing the truth having no regard to the oath taken. 9. P.W.4 Uchit Mandal says in paragraph 1 that when P.W. 3 Nandlal Mandai came to rescue his mother, Babuwalal injured him by means of Khanli. But in his cross examination in paragraph 3 he says that Nandlal came to the rescue of his mother after his (P.W. 4) departure. It strongly indicates that P. W. 4 has stated in his examination in chief (sic) that he has not see himself. 10. It is significant to note that none of Sah Nasruddin named in the F.I.R. as an eye witness of the occurrence or Sonbatia; Banjhura @ Mahanthi, Sokus wife and Gyanehands daughter who, according to the evidence of P.W. 3 in para 10, were harvesting the paddy in question as labourers at the time of occurrence and Jamuna Pandey, Diljan Moulvi, Rati Mandal and Vishwanath, who according to the evidence of P.W. 6 Panchi Mandai in para 5 had rushed to the place of occurrence at the time of assault, has been examined by the prosecution and no explanation has been given for non examination of any of them. 11. Thus it appears that the true picture of the occurrence is not being placed before the court by the P.Ws. examined and material witnesses have been with held for no reason. 12. With holding of such material witnesses reasonably leads to drawing of an inference that had any of them been examined as P.W., he would have not supported the prosecution case or the informant and his nephew P.W. 3 Nandlal. 13. In para 1 P.W. 6, says that he went to the Bhaptiahj police out post to inform the police and thereafter police arrived and his fardbeyan was recorded. But such information has been with held for no reason. 14. 13. In para 1 P.W. 6, says that he went to the Bhaptiahj police out post to inform the police and thereafter police arrived and his fardbeyan was recorded. But such information has been with held for no reason. 14. There is another circumstance which makes me very much hesitant to rely on the prosecution case and the evidence of the informant. In para 7 P.W. 6, the informant, says that before the arrival of the Assistant Sub Inspector of Police (Jamadar Saheb) he held consultations and deliberations with the villagers. The above strongly indicates that the prosecution case was built up against the appellant who is a younger brother of the late husband of deceased Shukni and who has been on litigating terms with her and the informant Panchi Mandai also from before the occurrence, after deliberations with the villagers. Evidence of P.W. 6 Panchi Mandal in para 8 shows that there had been litigation between the appellant and the deceased. The appellant had instituted two cases against this P.W. 6 also. 15. In the above circumstances I do not consider it reasonable or justifiable to rely on the prosecution case as set up by P.W. 6 Pane hi Mandal after holding deliberations with his villagers. 16. Evidence of P.W. 3 Nandlal, son of deceased Shukni, on 12th September 1983, is that he has turned Babaji (Saint) 7 to 8 years ago and moves with his Guru. He is unmarried and has no connection with his home. There is no medical evidence on the record to show that P.W. 3 sustained any injury in the occurrence. In the above circumstance, his presence at the time of occurrence becomes doubtful. 17. In view of the above discussion of evidence, circumstance and probabilities of the case, I am of opinion that the prosecution has not been able to prove satisfactorily by cogent and reliable evidence the charges leveled against the appellant. The evidence of witnesses examined fails to inspire confidence for the reasons recorded above. Material and competent witnesses, who according to the evidence of informant and his nephew, P.W. 3 Nandlal Mandal were present at the time of occurrence, have not been examined for no reason. 18. In the result the appeal succeeds. It is hereby allowed. The evidence of witnesses examined fails to inspire confidence for the reasons recorded above. Material and competent witnesses, who according to the evidence of informant and his nephew, P.W. 3 Nandlal Mandal were present at the time of occurrence, have not been examined for no reason. 18. In the result the appeal succeeds. It is hereby allowed. The order of conviction and sentence passed against appellant Bauwalal Mandal by the learned Additional Sessions Judge, Saharsa, is hereby set aside and he is acquitted of the charges leveled against him. He be set at liberty forthwith if not required in any other case.