Judgment R.N.Prasad and P.K.Sarkar JJ. 1. Both the appeals have been filed against the judgment and order dated 16-6-1986 passed by Sessions Judge. West Champaran. Bettiah in Sessions Trial No. 159 of 1984 whereby Nasrullah Mian appellant in Criminal Appeal No. 311 of 1986 was convicted for the offence under Sec. 302/34 of the Indian Penal Code and was sentenced to undergo imprisonment for life. He was further convicted for the offence under Sec. 394 of the Indian Penal Code and was sentenced to undergo Rigorous Imprisonment for ten years. Nasiruddin Ansari appellant in Criminal Appeal No. 462 of .1986 was convicted for the offence under Sec. 302 of the Indian Penal Code and was sentenced to undergo imprisonment for life. He was further convicted for the offence under Section 394 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for ten years. 2. On 27-11-1983 at about 3.45 a.m. Baidullah Ansari gave his fardbeyan that on 26-11-1983 he was sleeping with his wife on a cot. At 10-11 p.m. three persons entered after removing the tat. They flashed torch at his face and demanded ornaments and money. His wife gave her nosepin to them. They further demanded ornaments and money. He said that he had no ornament and money on which one of the miscreants gave dagger blow on his stomach and they ran away leaving the dagger. On alarm railed by him his brother Abdullah Ansari, Munsif Ansari and Nazrul Dhobi came there and had seen the occurrence. He claimed that he identified the miscreants by face. The fardbeyan was recorded in presence of Abdullah Ansari, who signed the fardbeyan as a witness. 3. On the aforesaid fardbeyan first information report was registered against unknown and investigation was taken up. On completion of the investigation charge-sheet was submitted against the appellants. On receipt of the chargesheet cognizance was taken and the case was committed to the Court of Sessions for trial. 4. The trial Court framed charges against the appellants and on trial convicted them for the offence under Secs. 302 and 394 of the Indian Penal Code, as stated above. 5. The prosecution in support of its case examined eight witnesses, out of whom PW 1 and PW 4 claimed to have gone to the place of occurrence but no body disclosed the name of the culprits. PW 5 was tendered. 302 and 394 of the Indian Penal Code, as stated above. 5. The prosecution in support of its case examined eight witnesses, out of whom PW 1 and PW 4 claimed to have gone to the place of occurrence but no body disclosed the name of the culprits. PW 5 was tendered. PW 7 is the doctor, who held post-mortem over the deadbody. PW 8 is the Investigating Officer. PW 2 is mother of the deceased, who claimed to have identified the appellants by voice. PW 3 is wife of the deceased, who claimed to have seen the occurrence and identified the appellants. PW 6 is brother of the deceased, who claimed to have seen the appellants running away. 6. It is manifest from the records that the FIR was lodged by the injured Baidullah Ansari against unknown, who died subsequently. PW 3 is wife of the deceased and has claimed to be the eyewitnesses to the occurrence. She has stated in her evidence that she was sleeping with her husband. Three persons entered in her house after removing the Tat. They flashed torch on the face of her husband and demanded ornaments and money. She parted with her nosepin. She identified the appellants in the torchlight flashed by them. They also threatened not to disclose their names. Therefore, appellant Nasiruddin gave Chura blow on the stomach of her husband. Her husband raised-alarm on which elder brother of her husband Ubaidullah and her mother-in-law PW 2 came. Her husband narrated the incident and disclosed the name of the appellants to them. Many other persons came there. They took her husband to Ramnagar Hospital for treatment and thereafter he was taken to Bettiah Hospital where he died. She did not disclose the name of the appellants to the villagers out of fear. About 15-16 days ago appellant Nasiruddin had snatched Rs. 250.00 and a watch from her husband while he was coming from Jogia Bazar. Her husband had dispute with them for land. 7. PW 2 is mother of the deceased. She stated in, her evidence that she identified the appellants by voice. The deceased raised alarm stating that appellant Nasiruddin gave him Chura blow and Nasiruddin was flashing torch. She did not disclose the name of the appellants out of fear. PW 6 is brother of the deceased. 7. PW 2 is mother of the deceased. She stated in, her evidence that she identified the appellants by voice. The deceased raised alarm stating that appellant Nasiruddin gave him Chura blow and Nasiruddin was flashing torch. She did not disclose the name of the appellants out of fear. PW 6 is brother of the deceased. He has stated in his evidence that on alarm raised by the deceased he came out of the house and saw the appellants running away. He claimed to have identified them in the light of the torch. He claimed to have caught Nasrullah but he escaped after throwing him down on the ground. He also stated that fardbeyan was recorded in his presence and he signed the fardbeyanas a witness. The witness has further stated that out of fear he did not names the appellants before the police but subsequently he disclosed the name of the appellants to the police. In cross-examination he also stated that Investigating Officer had visited the place of occurrence on 28-11-1983 and he met him but he did not disclose the name of the miscreants to him. He further stated that on 29-11-1983 also he did not give his statements before the police. 8. From the discussions made above it is evident from fardbeyan. Ext. 2, that the informant did not disclose the name of the miscreants rather claimed to have identified them by face. PW 3, the wife was sleeping with the deceased. She stated in her evidence that the deceased himself disclosed the name of the appellants to the persons including PW 2 and PW 4 who came there on alarm raised by him. The aforesaid evidence appears to be in consistent and not worthy of reliance as the deceased himself was the informant and did not name any culprits. She claimed to have identified the culprits in the light of the torch flashed by the miscreants. The identification in the light of torch flashed by miscreants is not probable as the persons who was flashing torch would be in the opposite direction of the light. 9. Similarly, PW 2 stated in the evidence that the deceased himself disclosed the name of the appellants whereas the deceased in his fardbeyan did not disclose the name of the miscreants. She claimed to have identified the appellants by voice. Such identification is not safe to be relied upon. 10. 9. Similarly, PW 2 stated in the evidence that the deceased himself disclosed the name of the appellants whereas the deceased in his fardbeyan did not disclose the name of the miscreants. She claimed to have identified the appellants by voice. Such identification is not safe to be relied upon. 10. Similarly the evidence of PW 6 is not worthy of reliance. He is brother of the deceased. He claimed to have seen the appellants running away but has admitted in his evidence that he did not disclose the name of the appellants before the police. It would not be out of place to mentioned herein that the occurrence took place on 26-11-1983 at about 10-11 p.m. and the fardbeyan was recorded on 27-11- 1983 at 3.45 a.m. i.e. after about four hours. If at all any witness had identified the miscreants/appellants in natural course they must have disclosed the name of the appellants immediately after the occurrence. PW 6 signed the fardbeyan but did not disclose the name of the appellants at the time of recording fardbeyan. The Statements of PW 2 and PW 6 were recorded on 1-12-1983 i.e. after five days of the occurrence though the Investigating Officer met them earlier. The Investigating Officer. PW 8 has categorically stated that he visited the place of occurrence and contacted the witnesses but they declined to give their statement. For the first time on 1-12 1983 the witnesses gave their statement before him. Besides, as stated above it is evident from the fardbeyan that the deceased did not disclose the name of the miscreants but the witnesses are deposing that the deceased himself disclosed the name of the miscreants/ appellants. Thus, in such a situation as discussed above, we do not find the evidence of the prosecution witnesses worthy of reliance. 11. Accordingly, both the appeals are allowed and the judgment and order of conviction and sentence of the appellants are hereby set aside. The appellants who are on bail are discharged from the liability of their bail bonds.