JUDGMENT R. N. Sahay, J. - This appeal has arisen from Sessions Case No. 560 of 1982 on the file of 2nd Additional Sessions Judge, Munger. The appellants were charged, tried and convicted for the offence punishable under sections 148, 149, 302/34, 324, 201 and 380 of the Indian Penal Code and 27 Arms Act. All the six appellants were sentenced to imprisonment for life under section 302/34 Indian Penal Code, three years imprisonment each under section 27 Arms Act and section 148 Indian Penal Code. Appellant Ganauri Muni was further sentenced to two years imprisonment under section 324 Indian Penal Code. Appellants Ganauri Muni, Umesh Muni and Dashrath Muni were further sentenced to two years imprisonment each under section 380 Indian Penal Code. All the sentences were ordered to run concurrently. 2. The appellants were tried for having brutally murdered Hari Shankar Singh at his Farm House at village Rabibari P.S. Gogri, District Khagaria. The prosecution story has been succinctly stated by the trial court in para-3 of the judgment under appeal. The occurrence happened on 4.11.1981 at about sun set time. Niranjan Prasad Singh, nephew of the deceased along with co-villager Dashrath Singh was on the roof of the Basa of the deceased which is situated in village Rabibari. The deceased Hari Shankar Singh came along with his servant Janardan Chaudhary @ Lutan Chaudhary on a tractor and after detaching its plough on the eastern side of the Basa, where Janardan Choudhary got down with the gun of the deceased, he drove the tractor just in front of the gate of the Basa. He was about to step down from the Tractor. In the meantime, appellant Ganauri Muni, Ucho Muni and Umesh Muni came there from the east with gun and rifle in their hands. Three other appellants also came there from north with revolvers and rifles in their hands. It is alleged that all the accused persons started firing from their fire arms at Hari Shankar Singh, who was on the seat of the tractor. Hari Shankar Singh received gun short injuries and slumped down and died on the seat of the tractor. Three other appellants also came there from north with revolvers and rifles in their hands. It is alleged that all the accused persons started firing from their fire arms at Hari Shankar Singh, who was on the seat of the tractor. Hari Shankar Singh received gun short injuries and slumped down and died on the seat of the tractor. Being horrified on witnessing the gruesome murder, Niranjan Prasad Singh and Dashrath Singh got down from the roof of the Basa and fled away after scaling the rear wall to the village Lakhminia which is at a distance of about one kilometre from the P.O. village. 3. Mahavir Yadav P.W.4, an old farm manager of the deceased, was also present inside the aforesaid Basa at the time of the alleged occurrence and when he went to the outer door of the Basa on hearing the sound of gun firing, the appellant Ganauri Muni shot at him. He got injury on the right arm as a result of which he fell down in the inner courtyard. Appellant Dashrath Muni and Umesh Muni were also present there. Appellant Ganauri Muni asked for the key of the trunk kept in the Basa from Mahavir Yadav. The key was handed over to Ganauri Muni. Ganauri Muni along with aforesaid appellants took away radio and Rs.900/-from the trunk. The appellants then removed the dead body of Hari Shankar Singh on a cot and took it away to some lonely place. 4. Akhauri Bipin Bihari Prasad P.W.9, who was Officer-in-charge of Gogri Police Station heard some rumour next morning and on that basis he visited the occurrence village. He reached there at 9.45 A.M. where he recorded the fardbeyan of Niranjan Prasad Singh, who had returned by that time from village Lakhminia. The Investigation commenced and after some time dead body of the deceased was found on the southern bank of river Koshi lying at a distance of about 200 yards east of the aforesaid Basa of the deceased. The body was headless and it was allegedly identified by some persons because of presence of a mole on its back and an incision mark on its left leg. The Investigation Officer found blood spilled on the tractor and below it besides a lid and seven wads of 303 cartridges. 5. The body was headless and it was allegedly identified by some persons because of presence of a mole on its back and an incision mark on its left leg. The Investigation Officer found blood spilled on the tractor and below it besides a lid and seven wads of 303 cartridges. 5. According to the prosecution, motive for the crime was that the accused persons had been pressurising the deceased and his family members to abandon the land and farm house. Appellant Bishundeo Das had instituted a case against the deceased under Bataidari Act. 6. Learned Additional Sessions Judge having carefully scrutinised the evidence brought on record by the prosecution, found all the appellants guilty for the charges framed against them and by judgment and order dated 23.9.1985 the appellants have been convicted and sentenced as indicated above. 7. Learned counsel for the appellants vehemently submitted that the appellants have been falsely implicated due to Bataidari case brought against the deceased. Actually the witnesses had not seen the occurrence particularly Niranjan Prasad Singh and Dashrath Singh and even if they had seen the occurrence, the appellants were not among the culprits. Counsel further tried to demonstrate with reference to the medical evidence which completely demolishes the ocular evidence, and it is abundantly clear that the informant Niranjan Prasad Singh and Dashrath Singh could not be eye witness of the occurrence. It is pertinent to note that all the important witnesses including the informant and Dashrath Singh did not inform any body and the police and went to village Lakhminia. Mahavir Yadav also did not try to contact any body. 8. It would be appropriate to discuss the evidence of following material witnesses on the basis of which the appellants have been convicted. 9. Murari Prasad Singh (P.W.1) is younger brother of the deceased Hari Shankar Singh. At the sun set time, he was at the Basa in the P.O. village. He had two farm houses, one in Rabibari and the other outside the village where cattles were kept. At the time of occurrence he was at the farm house outside the village. He was going to answer the call of nature. He saw Hari Shankar Singh going to the village on the tractor. He heard the sound of gun fire three times. After few seconds, he heard sound of another round of firing. At the time of occurrence he was at the farm house outside the village. He was going to answer the call of nature. He saw Hari Shankar Singh going to the village on the tractor. He heard the sound of gun fire three times. After few seconds, he heard sound of another round of firing. He turned towards the tractor and saw few persons surrounding the tractor. He proceeded some distance but could not gather courage to proceed further. He sat there and remained for 45 minutes, by which time, he saw 15 to 20 persons going' north of the tractor. He saw those persons carrying a cot going through the field on which there was a dead body. He identified the appellants. The appellants were carrying arms and torches. When they went, this witness went to the place of occurrence and found blood beneath the tractor. Blood was also on the tractor. He also saw mark of gun shot on the wall of the Basa. He went inside and found Mahavir Yadav injured. He identified the dead body of his brother in the Post-Mortem House. His ancestral house and family are at Durgapur. He had seven brothers, the deceased was third brother. They have 20 bighas of land at Durgapur. This witness and the deceased mostly lived at Rabibari. He was not present at the time of P.O. inspection. Near the farm house, there is house of Dilip Babu. Accused persons live north of the house of Dilip Babu. He was available at Rabibari village for 15 days prior to the occurrence. In para-34 of his evidence, this witness stated that he did not stay in the P.O. Basa. He spent the night in the other Basa with Mani Babu and Dilip Babu. For ten days he did not go to P.O. Basa. In para-35 of his evidence, this witness clearly stated that neither he nor Dilip and Mani informed the Police about the occurrence. He did not make any effort to send Mahavir Yadav for treatment. This witness also stated in para-36 of his evidence that he had not seen either Niranjan Prasad Singh or Dashrath Singh. He learnt after 2 or 3 days that his servant Bhola Tiwary had gone to Out-Post but did not find any Jamadar or Hawaldar there. Bhola Tiwary has not been examined in this case. This witness also stated in para-36 of his evidence that he had not seen either Niranjan Prasad Singh or Dashrath Singh. He learnt after 2 or 3 days that his servant Bhola Tiwary had gone to Out-Post but did not find any Jamadar or Hawaldar there. Bhola Tiwary has not been examined in this case. This witness admitted that there was enmity with the appellant Ganauri, Umesh and Dashrath from before. 10. Banarsi Singh (P.W.2) is an important witness. He was at Durgapur. In the night at about 2.30 A.M. he heard weeping sound in the house of Hari Shankar Singh. He went there and saw Lalo Yadav (P.W.3.). Lalo Yadav on being asked stated that Hari Babu has been shot dead by the appellants and dead body has been carried away by them. This witness went to P.O. village along with other villagers. Search was made for the dead body. On the bank of river Koshi headless body of Hari Babu was found. 11. Lalo Yadav (P.W3.) was in the P.O. village where he was doing cultivation on batai. He also kept cattles. He was in his field which is about two rassies away from the Basa of Hari Shankar Singh. He heard the sound of rifle firing, which was coming from Kutchery of Hari Shankar. He proceeded on that direction, Kutchery of Hari Babu was half rassie away from the place where this witness was working. He reached near the wall of Kutchery of Hari Babu and saw that the appellants were taking the dead body from the tractor. A cot was brought by Balo Muni on which the dead body was kept. He identified 3 to 4 persons by name and the accused were armed with gun and pistol. He went inside the Kutchery and found Mahavir Yadav in injured condition. He went to Durgapur and woke up Vijay Babu, Gopal Babu and Jai Shankar Babu and told them about the occurrence. This witness does not speak about the presence of the informant Niranjan or that he had seen Murari Singh in the village. He met Daroga after three days. He gave his statement. He did not make effort for taking Mahavir Yadav to hospital. He did not inform any• body while going to Durgapur. He had not given any information at Maheshkhunt, Mansi or Khagaria Police Station. He met Niranjan and Dashrath at 4.00 PM. He met Daroga after three days. He gave his statement. He did not make effort for taking Mahavir Yadav to hospital. He did not inform any• body while going to Durgapur. He had not given any information at Maheshkhunt, Mansi or Khagaria Police Station. He met Niranjan and Dashrath at 4.00 PM. Both of them were going from Baltara to Kutchery. There is doubt that this witness had seen any part of the occurrence. 12. Mahavir Yadav (PW.4) is servant of the deceased and managed the cultivation of Rabibari. On the date of occurrence he heard the movement of tractor outside the Kutchery. Thereafter on hearing gun fire he came out of the courtyard. Appellant Ganauri fired at him injuring his right arm. He fell down in the courtyard. He also saw Dashrath Muni and Umesh Muni. Ganauri Muni demanded key which he gave. Ganauri Muni gave blow by butt of the gun. He ransaked and took out Rs. 900/- from the box. This witness was taken to Khagaria Hospital. He was in employment of the deceased for 60 years and always lived in Rabibari. He is known to the accused persons, who are inhabitants of Rabibari. In para-10 of his evidence, this witness clearly stated that he met Niranjan Prasad Singh next morning. He did not tell anything about the occurrence or that he had identified the accused persons. He had seen 25-30 persons outside the Kutchery but did not identify any of them as it was going to dark. There was enmity with Munis from before but Hari Shankar Prasad had settled the dispute. He also stated that Banarsi Chaudhary the Chowkidar of Rabibari village did not come in the night. 13. Dashrath Singh (P.W.5) has stated in his evidence that on the date of occurrence at sun set time he was in the balcony of the house of the deceased. Niranjan Babu was with him. At 4.00 PM Hari Babu arrived on his tractor. His house is also known as Kutchery of Hari Babu. Hari Babu detached the plough from the tractor. His servant Lutan was also on the tractor. Lutan got down from the tractor with the gun of Hari Babu. Hari Babu turned the tractor and stopped it at the gate of Kutchery. At 4.00 PM Hari Babu arrived on his tractor. His house is also known as Kutchery of Hari Babu. Hari Babu detached the plough from the tractor. His servant Lutan was also on the tractor. Lutan got down from the tractor with the gun of Hari Babu. Hari Babu turned the tractor and stopped it at the gate of Kutchery. This witness stated that in the meantime appellants and some unknown persons came there and shot Hari Babu, who was sitting on the tractor and slumped on the tractor. This witness and Niranjan Prasad Singh got down and went to Lakhminia village and spent the whole night in the house of one Nacho Thakur. He returned to Kutchery next morning and met Mahavir Yadav, who was injured and who told him that appellant Ganauri Muni shot his master and injured him. The dead body of Hari Babu was searched and it was found on the bank of river Koshi. Adjacent to Kutchery of Hari Babu, there is hut of Dilip Babu and in between there is a gali. The house of the accused persons is south of Kutchery. The distance of Rabibari from Durgapur is 10-12 kms. This witness was examined by the police after four days at Gogri Police Station. He had gone there from Durgapur. This witness denied that the accused along with the deceased and Vijay Kumar were involved in the murder case of Gulab Das. On the date of occurrence this witness had met Dilip Singh and Muni Singh at 4.00 P.M. 14. Niranjan Prasad Singh (P.W.6) is the informant and nephew of the deceased. This deceased was also known as Prabha Shankar Singh. Lutan Chaudhary @ Janardan Chaudhary was servant of Hari Prasad Singh. At Rabibari there is a house which is known as Kutchery or Basa. There is other house which is meant for keeping cattles. Mahavir Yadav manages the affairs of cultivation at Rabibari. On 4.11.1981 at sun set time this witness was in the balcony of Kutchery with Dashrath Singh. In the same evening he had reached Rabibari. Hari Babu came on a tractor with Lutan Chaudhary. The tractor was parked in front of Kutchery. Hari Babu detached the plough from the tractor. Lutan got down and stood by the side of the plough. In the meantime, Umesh, Ganauri and Ucho came armed with gun and lathi. This witness identified the appellants. Hari Babu came on a tractor with Lutan Chaudhary. The tractor was parked in front of Kutchery. Hari Babu detached the plough from the tractor. Lutan got down and stood by the side of the plough. In the meantime, Umesh, Ganauri and Ucho came armed with gun and lathi. This witness identified the appellants. Appellant Ganauri Muni fired at Hari Babu while he was still sitting on the tractor. He slumped on the stearing of the tractor. This witness and Dashrath Singh filled with fear and fled to Lakhminia village which is one kilometre away. He first went to Mukhiyaji but he did not meet him. He stayed in the Basa of Nacho Thakur, who has not been examined. He returned to Rabibari in the next morning but did not find the dead body of Hari Babu. Large quantity of blood was on the tractor and inside the Kutchery. Lock was found open and articles scattered. Mahavir Yadav was found in the corner of the courtyard with injury. Mahavir Yadav told him that he was shot by appellant Ganauri Muni and Dashrath Muni and Umesh Muni were also there. People of Rabibari went out in search of dead body of Hari Babu. Darogaji came at 10.00 A.M. and recorded his fardbeyan (Ext.-2). The dead body was discovered but the head was missing. He identified the dead body with the scar mark of operation on the leg. There was gun shot injury on the back of Hari Babu. The house of the appellants and the house of Dilip Babu are close to the Kutchery. No body was prapared to go to Gogri or Maheshkhunt Police Station. This witness did not make hulla in the village about the murder of Hari Babu. This witness stated that there was litigation between the accused persons and the deceased but the dispute was latter settled. This witness denied that he was not in the village at the time of occurrence and he was at Durgapur and that he went to P.O. village at 7.00 A.M. on receiving information. 15. Dr. S.N. Kishore (P.W.7) conducted Post-Mortem examination on the dead body and found ten incised wounds on shoulder, axilary, index finger and arm, four circular wounds on chest and one penetrating wound on the left side of the chest. This doctor also examined Mahavir Yadav and found two circular wounds and gun shot bruises. 16. 15. Dr. S.N. Kishore (P.W.7) conducted Post-Mortem examination on the dead body and found ten incised wounds on shoulder, axilary, index finger and arm, four circular wounds on chest and one penetrating wound on the left side of the chest. This doctor also examined Mahavir Yadav and found two circular wounds and gun shot bruises. 16. Mani Prasad Singh (P.W.8) was near the Kutchery of the deceased. He stated same thing as stated by other witnesses. He identified the accused persons, who were armed. After the occurrence this witness went near the tractor and found profuse bleeding and blood mark on the wall of Kutchery. In the night he stayed in the other Basa of the deceased. In the morning he reached Maheshkhunt and learnt that Daroga had gone to Rabibari. He went to Khagaria Hospital and saw the dead body. He is nephew of the deceased. He denied that on the date of occurrence unknown dacoits had raided the house and there was firing from both sides. 17. Akhauri Bipendra Bihari Prasad P.W.9 was officer-in-charge of the Gogri Police Station on the material date. As noticed earlier that the murder of Hari Prasad Singh was ghastly and gruesome and had been witnessed by the close relatives of the deceased but no effort was made by any of them to report to the police about the occurrence. This witness having heard the rumours about the occurrence in the morning, proceeded to village Rabibari at 8.45 A.M. and reached the village at 10.00 A.M. He summoned Niranjan Prasad Singh and recorded his fardbeyan in presence of the witnesses and the fardbeyan was sent to Police Station for registration of the case. The Officer-in-charge himself had taken the statement of injured Mahavir Yadav and prepared injury report. He inspected the site of occurrence, which was, as stated earlier, a Basa of the deceased Hari Shankar Singh. According to the evidence the front of Basa faces east. There is only one gate fixed at the entrance of Basa. The Investigating Officer found the tractor at the entrance, rear of which was almost touching the gate. Blood was found on the seat and stearing wheel of the tractor as also between the stearing and the seat some wax copious was found. Blood was also found below the tractor. The Investigating Officer found blood stains on the tractor and also pillet mark. Blood was found on the seat and stearing wheel of the tractor as also between the stearing and the seat some wax copious was found. Blood was also found below the tractor. The Investigating Officer found blood stains on the tractor and also pillet mark. He found empty cartridges of 3.03 south of the tractor. In all he recovered 7 wad crossing the entrance door. The Investigating Officer entered the room and found there a big box which was open. He also inspected other room and found the sign of ransacking. He also found one room where grains and seeds were stored which was also ransacked. He found mattresses on the floor which was turned down from the cot. The front of the Basa was an open place of 40' x 50' area. The trailer of the tractor was lying 30 yards away from the tractor. This witness found another Basa at 15 yards to the main Basa, which belonged to Mani Babu. The Investigating Officer seized blood stained soil, 3.03 cartridges, lead of the cartridges and wad as also six wads and prepared seizure memo in presence of the witnesses. While he was preparing seizure list, he heard hulla that the dead body had been discovered He proceeded 200 yards east where he found crowd. About 5 yards south of Koshi there was a field where a headless body was lying. He inspected the body closely and found mark of injury, scar mark on the leg. The headless body was dispatched for post-mortem. 18. The Investigating Officer took the statements of Dashrath Singh, Mani Prasad Singh, Dilip Pd, Singh, Murari Pd. Singh and Lalo Yadav on 7.11.1981. This Officer stated that Rabibari was 16 Kms. away fromn Gogri Police Station where he had gone on Jeep. Maheshkhunt was between Gogri and Rabibari. There was a Police Outpost at Maheshkhunt. There was also a Police Outpost at Poura which is 4 Kms. from Rabibari where Jamadar and several constables live. The Investigating Officer did not think it necessary to ascertain from Maheshkhunt Outpost as to whether rumour about murder has been received there also. The case was supervised by the S.P., who had directed the Investigating officer to investigate on the point as to whether in fact a dacoity had been committed at the Basa of Hari Shankar Singh. The Investigating Officer did not think it necessary to ascertain from Maheshkhunt Outpost as to whether rumour about murder has been received there also. The case was supervised by the S.P., who had directed the Investigating officer to investigate on the point as to whether in fact a dacoity had been committed at the Basa of Hari Shankar Singh. The Investigating Officer did not take this direction seriously and thereby ignored the direction. The Investigating Officer tried to investigate the motive for the present occurrence but could not procure any proof of motive. 19. Learned trial Judge summarised the evidence of the important witnesses from paragraphs 7 to 10 of the judgment under appeal. It is significant to note that all the principal witnesses are related to the deceased except Mahavir Yadav, who was a trusted servant of the deceased for so many years. Niranjan Prasad Singh informant is own nephew of the deceased. Mani Prasad Singh is also nephew of the deceased. Murari Prasad Singh is own brother of the deceased, Dashrath Singh is co-villager. The trial court has commented that although P.W. Lalo Yadav and Mahavir Yadav had not witnessed the actual shoot out, their evidence reasonably support the version of Dashrath Singh, Niranjan Prasad Singh and Mani Prasad Singh. 20. The trial court brushed aside the main attack on the evidence of the defence i.e. delay in lodging the First Information Report. The trial Judge was of the view that distance of Police Station was 10 Kms. and as such it could not be practical to go in the night to report the matter. The trial court comments that gruesome murder must have unleashed a sense of terror in the minds of the persons present there and as such it could not be expected that the terror stricken people would dare to go to the Police Station at night to report about the murder. It has come in evidence that there was a Police Outpost at Maheshkhunt and it was not quite far away from Rabibari, Dashrath Singh and Niranjan Singh claimed to have gone to village Lakhminia. It has further come in evidence that P.W.1 and P.W.3 had gone to village Durgapur in the night itself where there was police Outpost but no information was lodged there. It has further come in evidence that P.W.1 and P.W.3 had gone to village Durgapur in the night itself where there was police Outpost but no information was lodged there. The trial judge has given a very unconvincing explanation for inexplacable action on the part of the witnesses, who are blood relations of the deceased. The trial court says that failure to inform police cannot be said to be a reasonable basis to discard the truth of the prosecution version. 21. In my view, inaction on the part of the witnesses to inform the closest Outpost introduces serious infirmity in the entire prosecution case and even the trial court found itself unable to offer convincing explanation, for the failure of the witnesses to go to the Police Station. The trial court has not noticed that the own brother and nephews of the deceased did not feel it necessary even to go to the Police Station in the morning. Niranjan Prasad Singh and Dashrath Singh were at Lakhminia village at night. 22. On close analysis of the entire evidence, I find that the evidence brought on record by the prosecution is not strong enough to sustain conviction of the appellants on account of numerous infirmities noticed in the judgment. The inordinate delay rather total inaction on the part of the eye witnesses to inform the Police is startling and cannot be brushed aside. It was serious lacuna which renders the entire case extremely doubtful. In my opinion, it was hazardous to convict the appellants on such shaky and unconvincing evidence. This appeal, therefore, must succeed. 23. This appeal is accordingly allowed, conviction of the appellants is set aside and they are acquitted of the charges. Since all the appellants are on bail, they are discharged from the liability of their bail bonds.