JUDGMENT RN Prasad & D.S. Dhaliwal, JJ.--The appellants have preferred this appeal against the judgment and order of conviction dated 22.12.1989 passed in Sessions Trial No. 365/86. Appellant Sukan Singh, Rambilash Kharwar, Parmeshwar Kharwar have been convicted for the offence under Section 302 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for life. The other appellants have been convicted for the offence under Section 302/149 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for life. All the appellants except Budhu Turia, Sudhu Turia and Ram Lal Kharwar have further been convicted for the offence under Section 27 of the Arms Act and have been sentenced to undergo rigorous imprisonment for two years. 2. The case of the prosecution as emerges from the fardbeyan (Ext-1) is that one Bala Singh Yadav gave his fardbeyan on 17.2.86 at about 12 noon at his village Bandha stating therein that on 16.2.86 at about 2 P.M. he alongwith Dhoni Yadav and Shankar Yadav were washing their she-buffalo in the Nala of Choldag jungle. The mother of Moti Yadav was also there. He saw 15-16 persons in Khakhi dress armed with rifle and guns, who came and surrounded them. On enquiry they disclosed their address. One of the members of the party disclosed his name as Chamari Singh Kharwar. He expressed his desire to see his village Bandha. He asked as to why he wanted to go to his village Bandha. Chamari Singh Kharwar disclosed that there is dispute between Yadav and Choudhary and he wants to settle the dispute between them. They caught Ramraj and Sheo Kumar Yadav who were grazing their she-buffaloes in the nearby jungle. They proceeded towards the village and on the way they also caught Moti Yadav. They took all the persons towards South East of the village in the jungle. Chamari Singh Kharwar asked Ramraj Yadav, Sheo Kumar Yadav and Moti Yadav to sit there. One person armed with gun was sitting near them and two persons armed with gun were watching from some distance. Chamari Singh Kharwar took him with his party men two hundred yards East in the jungle. From there Chamari Singh Kharwar sent his two men to village Bandha Choudhary Tola. Chamari Singh Kharwar asked him as to why Ram Bachan Yadav is against Kharwar. Chamari Singh Kharwar took him with his party men two hundred yards East in the jungle. From there Chamari Singh Kharwar sent his two men to village Bandha Choudhary Tola. Chamari Singh Kharwar asked him as to why Ram Bachan Yadav is against Kharwar. He said that there was no dispute amongst them and he had not seen Ram Bachan Yadav. After some time two men of Chamari Singh Kharwar came from the village, with Sukan Singh, Lakshman Singh Kharwar, Parmeshwar Ram Lal Kharwar, Nawrang Kharwar, Budhu Turia, Sudha Turia, Lalkesh Turia, Chamari Singh Kharwar thereafter asked him to bring Chura and water from the village. He went to his village and informed about the incident to Siri Yadav but the villagers refused to give Chura and water. The grandmother of Sheokumar when learnt about the occurrence, she went at the place of occurrence and requested Chamari Singh Kharwar to release those persons. At about 4 P.M. he heard sound of four gun firings. He and villagers out of fear did not go to the place of occurrence but saw Chamari Singh Kharwar and his party-man going towards East in the jungle. Thereafter he went to the place of occurrence and saw Ramraj, Moti and Sheo Kumar dead. He alongwith the villagers brought three dead bodies in the angan of Siri Yadav, father of deceased Moti Yadav. Chamari Singh Kharwar killed the aforesaid three persons in collusion with the persons of his village. 3. On the aforesaid fardbeyan, formal F.I.R. (Ext. 5) was drawn and after investigation charge-sheet was submitted against 24 persons showing 22 persons as absconders. After submission of charge-sheet ten accused persons out of absconders also surrendered/arrested. On receipt of charge-sheet in the court cognizance was taken and the case was committed to the Court of Sessions for trial. 4. The defence of the appellants was that they, are innocent and they denied to have been the members of Chamari Singh Kharwar party. They also denied to have caused the death of Ramraj, Moti and Sheo Kumar Yadav. 5. The prosecution in support of its case examined four witnesses out of whom P.W. 1 Churbigan Yadav has been declared hostile. P.W. 2 Bala yadav, the informant in the case has also been declared hostile. P.W. 3 father of deceased Moti Yadav and P.W.4, son of P.W. 3 have claimed to have seen the occurrence. 5. The prosecution in support of its case examined four witnesses out of whom P.W. 1 Churbigan Yadav has been declared hostile. P.W. 2 Bala yadav, the informant in the case has also been declared hostile. P.W. 3 father of deceased Moti Yadav and P.W.4, son of P.W. 3 have claimed to have seen the occurrence. One court witness was also examined who proved postmortem report Ext. 3, 3/1, 3/2 and also the Fardbeyan (Ext. 4) and the formal F.I.R. (Ext. 5). 6. The occurrence is alleged to have taken place on 16.2.86 at 4 P.M. The fardbeyan was recorded on 17.2.86 at 12 noon in the house of PW-3. The informant of the case P.W. 2 has been declared hostile. PW 3 the father of the deceased Moti Yadav and PW 4 the son of PW3 are interested witnesses. Learned counsel for the appellants pointed out that evidence of such witnesses specially in the facts and circumstances shall not be accepted. There is no rule of law that evidence of interested witnesses should be thrown out merely on this ground. The requirement under the law is to scrutinise the evidence of such witness with care and caution. Keeping the said principle of law in mind we proceed to examine the evidence of PWs. 3 and 4, PW 3 is the father of deceased Moti Yadav. He has stated in his evidence that the informant (PW2) informed him that Chamari Singh Kharwar had come and asked him to bring Chura and goor. The informant did not say anything more. He went to the Goshala and he saw from the window 10-12 persons out of them one person came to the village. He saw the appellants except appellant Nawrang variously armed. Appellants Budhu and Sudhu tied the hand of Sheo Kumar, Ram Raj and Moti Yadav and thereafter, appellant Rambilash fired at the deceased Ramraj Yadav, Sukan Singh fired at Moti Yadav and appellant Parmeshwar Singh fired at Sheo Kumar Yadav. Thereafter other, persons also fired 10-12 rounds and ran away. He went there and found the aforesaid three persons dead and he along with others brought the dead bodies in the Courtyard. In cross-examination this witness has stated that out of fear he did not go to his house and concealed himself in the Goshala of other person. Thereafter other, persons also fired 10-12 rounds and ran away. He went there and found the aforesaid three persons dead and he along with others brought the dead bodies in the Courtyard. In cross-examination this witness has stated that out of fear he did not go to his house and concealed himself in the Goshala of other person. The place of occurrence is in the East of Goshala wherefrom he had seen the occurrence. He had categorically stated that he had seen the occurrence from the window of the Goshala and there were 5-6 houses on the East of the Goshala. The height of the wall is about 8 ft. over which there was roof. 7. From the discussions of the evidence of the witnesses itself it appears that the place of occurrence was not visible from the place wherefrom he claimed to have seen the occurrence. In the First Information Report only eight persons were named but this witness named eleven persons. He did not name appellant Nawrang Singh Kharwar who was named in the F.I.R. In the fardbeyan it has been stated that the informant and the deceased persons were brought in the South East of the village in the Jungle and there they were asked to sit and were killed whereas this witness has stated that the occurrence took place in the field and not in the jungle. The fardbeyan was recorded on 17.2.66 at about 12 Noon at the house of this witness but he stated in his evidence that the Investigating Officer came in the morning and he gave statement before him. Thus, it appears on scrutiny that his evidence is not consistent with the prosecution case. PW4 is the son of PW 3. He also claimed to have seen the actual occurrence of assault. The witness has stated in his evidence that Bala Yadav PW 2 informed about the occurrence in detail but PW 3 has stated in his examination-in-chief that PW2 informed only that Chamari Singh Kharwar asked him to bring Chura and Goor and he did not say anything. PW4 has categorically stated that when Bala Yadav the informant, came he and his father both were present. He and his father both went to 'Goshala' whereas PW 3 stated in his evidence that he went to Goshala where PW 4 was present from before. PW4 has categorically stated that when Bala Yadav the informant, came he and his father both were present. He and his father both went to 'Goshala' whereas PW 3 stated in his evidence that he went to Goshala where PW 4 was present from before. This witness named all the appellants but in the FIR. only eight appellants have been named. This witness has stated in his evidence that the police came at 12 Noon but subsequently in cross-examination stated that the police came at 10 A.M. whereas P.W. 3 stated that the police came in the morning. This witness also stated in his evidence that the choukidar came at the place of occurrence in the evening but did not disclose the name of the assailants. This gives an impression that by that time the witnesses were knowing about the assailants. Thus, it appears that the evidence of the prosecution witnesses is not consistent with the prosecution case and is also contradictory to each other. 8. Moreover, the incident started at about 2 P.M. on 16.2.86 when the informant was washing she-buffalo in the Nala of Choldag jungle and the occurrence of killing took place at about 4 P.M. but surprisingly no information was given to the police. The police came next day i.e. on 17.2.86 at about 12 Noon at the house of P.W. 3 where the fardbeyan of P.W. 2 was recorded. It is manifest that P.W. 2 is not a witness of the actual occurrence of killing whereas P.Ws. 3 and 4 claimed to have seen the actual occurrence of killing whose evidence is contradictory. It has been stated by P.W. 4 that the statement of all the persons were taken at the place of occurrence but surprisingly he did not lodge the First Information Report though he claimed to be eye witness to the occurrence. P.W. 4 has also stated in his evidence that the Choukidar came in the evening of the day of occurrence but the name of the assailants was not disclosed to him nor he informed the police. There is no explanation on the record as to why the police was not informed promptly and in such a situation we find that the delay in lodging the First Information Report creates suspicion about the prosecution case. 9. The peculiar circumstances of the case is that the informant P.W. 2 was declared hostile. There is no explanation on the record as to why the police was not informed promptly and in such a situation we find that the delay in lodging the First Information Report creates suspicion about the prosecution case. 9. The peculiar circumstances of the case is that the informant P.W. 2 was declared hostile. The Investigating Officer has not been examined in this case. The evidence brought on the record is not consistent with the prosecution case with regard to the place of occurrence. In the fardbeyan, Ext. 4 it has been stated that three deceased persons were brought to the South East of the village in the jungle and they were done to death there whereas P.Ws. 3 and 4 have stated that all the three deceased were brought in the field and were killed. Furthermore, P.W. 3 has stated that he and his son both saw the occurrence from 'Goshala'. They were peeping through window and saw the occurrence. P.W.3 has stated in his evidence that there are houses around the 'Goshala' and has also stated in clear words that the place of occurrence was in the east of the Goshala, there are 5-6 house in the East of the Goshala arid the wall of the house is about 8 ft. high which falsifies the claim to be eye-witness. The attention of P.W.3 was also drawn with regard to the statement before the police but the Investigating Officer has not been examined and the non-examination of the Investigating Officer in the circumstance has caused prejudice to the defence. Furthermore, due to the non-examination of the Investigating officer the place of occurrence could not be proved in view of the inconsistency between the prosecution case and the evidence of the witnesses. Furthermore, it is also not a case where no independent witness was available but surprisingly no independent witness has been examined. In the fardbeyan itself it has been stated that Dhoni Yadav, Shankar Yadav and Mother of Moti Yadav were also present there. In the evidence of the witness it has also come that the grand-mother of Sheo Kumar Yadav had also gone to the place of occurrence but surprisingly, they were not examined by the prosecution nor any explanation has been brought on the record for their non-examination. 10. In the evidence of the witness it has also come that the grand-mother of Sheo Kumar Yadav had also gone to the place of occurrence but surprisingly, they were not examined by the prosecution nor any explanation has been brought on the record for their non-examination. 10. On consideration of the entire facts and circumstances as discussed above, we find that the prosecution has failed to bring home the charges levelled against the appellants and accordingly, the appellants are entitled to benefit of doubt. 11. Accordingly, this appeal is allowed and the appellant Sukan Singh, Rambilash Kharwar alias Rambilash Singh and Parmeshwar Kharwar alias Parmeshwar Singh who are in custody are directed to be released forthwith. The other appellants, namely, Budhu Turia, Sudhu Turia, Ram Lal Kharwar alias Ram Lal Singh, Lalkesh Turia, Lakshman Kharwar alias Lakshman Singh, Bansropan Kharwar alias Bansropan Singh, Lakhan Singh Kharwar alias Ram Lakhan Singh, Ujagir Singh and Nawrang Singh Kharwar alias Nawrang who are on bail are discharged from the liabilities of their bail bonds.