Judgment R.N.Sahay, J. 1. These three appeals have arisen from the decision of 4th Additional Sessions Judge, Bhagalpur, in Sessions Case No. 3/1985. The appellants were tried under Sections 364, 380, 302 and 302/149, IPC. Three appellants were charged under Section 147, IPC and rest three appellants were charged under Section 148, IPC for the offence of rioting and accused Basudeo Rout alone stands Charged under Section 323, IPC for voluntarily causing hurt to Draupadi Devi. 2. The Additional Sessions Judge convicted all the appellants under Sections 302/149, IPC and sentenced to rigorous imprisonment for life. Charge under Section 302, IPC was redundant. The appellants had been charged under Section 302/149, IPC still the appellants have been convicted under Section 364, IPC and sentenced to ten years. Appellant Basudeo Yadav is convicted under Section 323, IPC and sentenced to six months. Appellant Ratneshwar Rout. Basudeo Yadav and Mantu Yadav have been sentenced two years each under Section 148, IPC and appellants Chandra Mohan Raut, Katki Rout and Subodh Manjhi have been sentenced one year under Section 147, IPC. 3. The prosecution case is that on 19-7-1989 at about 6.30 a.m. the officer mcharge of Banka plice station heard a rumour about a man of village Amba being taken away by some one during previous night. The Officer in-charge recorded the rumour as station diary No. 372 and proceeded to village Amba where he learnt about the entire occurrence from Draupadi Devi, Draupadi Devi in her fardbeyan revealed that her husband Babulal Rout, who was a bench clerk of Civil Courts, Banka and while she was sleeping with her husband in the relevant fateful night on a cot and on a thatched verandah where her four children including her husbands sister were sleeping over a chowki in the pucca osara and her elder Gotni was sleeping on the western osara. Satya Narayan Yadav, Madho Pd.Yadav, Anirudh Rout and Rambilas Yadav were sleeping at her Dalan in the said night. At about 11 p.m. She woke up on receiving a blow on her left scapula. Her hasband also woke up. Appellants Basudeo demanded key of the room and on her denial he gave a blow with iron rod on her right hand as a result of which her hand was injured. Then at the instance of her husband she gave the bunch of the key to him. Her hasband also woke up. Appellants Basudeo demanded key of the room and on her denial he gave a blow with iron rod on her right hand as a result of which her hand was injured. Then at the instance of her husband she gave the bunch of the key to him. Four of the culprits then took her husband with them whereas appellant Ratneshwar and Chandra Mohan stayed with her. The four persons after opening the lock of the room, first took out a box and then took her husband inside the room they demanded certain papers from her husband. In the meantime accused Chandra Mohan and Ratneshwar took her to the chowkie where her children were sleeping and both of them started gruarding them. Her elder Gotni came from the western Osara and she was also made to sit on the chowki. The four culprits were moving in and outside the room. She identified accused Ratneshwar with Chura, Mantu armed with pistol, Basudeo armed with iron rod and all of them had torches. She identified them in the light of torch flashed by them. They brought her hasband out of the room and tied a Narial rope to his waist and hand of her husband. They threatened them that if they will raise bulla her husband will be killed. They took her husband after took her husband she went inside the room and found papers scattered and a box containing clothes cash, ornaments missing as well as a wooden box broken. She started weeping whereupon four persons sleeping on her Dalan came and she narrated the incident and named the appellants. Thereafter they went to search her husband but no trace could be found. On the next morning she came to know that the dead body of her husband was lying at Rani Garia Tikar. She went there and found her husband lying dead with cut injury on his neck and rope tied on his waist. She also found a blood stained dagger lying near the dead body. 4. The motive suggested by the prosecution is that there was a partition dispute among the eight brothers with appellant Chandra Mohan including Ratneshwar and Katki Raut. A Panchayati was held in which deceased Babulal Raut and Madhav Prasad Yadav were panches. She also found a blood stained dagger lying near the dead body. 4. The motive suggested by the prosecution is that there was a partition dispute among the eight brothers with appellant Chandra Mohan including Ratneshwar and Katki Raut. A Panchayati was held in which deceased Babulal Raut and Madhav Prasad Yadav were panches. Appellant Chandra Mohan and other seven brothers after obtaining the permission of Chakbandi Officer put their signatures and LTI over the blank stamps. The said paper of partition was handed over to Satya Narayan Yadav. Satya Narayan Yadav, the brother of Chandra Mohan who handed over it to Babulal Raut for safe custody. After sometime some differences again crept in among the brothers regarding partition and they wanted back the blank stamp papers bearing their signatures and LTI along with other papers from the deceased which he refused to give and so they committed the murder by preplanned manner. The appellants pleaded in defence that they have been falsely implicated in this case as a result of grave suspicion against them. The fact was that Babulal was murdered in the night of 18-7-1984, is established fact. That Dr. M. M. Rahman, a Medical Officer, Banka Sub-divisional Hospital who held post mortem on the deceased and found the following injuries on the person of the deceased : (i) incised wound in front and side of neck, below thyrad cartilage 4" x 1/2" x cervical bratibga. The trachea was completely out. (ii) one lacerated wound on the left side of the upper eyelid 1" x 1/2" x skin deep. (iii) one incised wound on left and front pina of the left ear starting from the lobule of the ear upto the middle part of the ear 1" x 1/2" x skin deep. 5. According to the evidence of the prosecution the deceased was murdered at the place where his dead body was found and this fact is not in controversy. The IO found the dead body of the deceased at Rani Garia Tikar at a distance of about one Kilometer North West from the house of the deceased. The IO found a blood stained knife near the dead body. It is important to mention that the dead body was discovered in the next morning i.e. morning of 19-7-1984. The deceased was taken away from his house at 11 p.m. The doctor had found sktomach full of digested particles. The IO found a blood stained knife near the dead body. It is important to mention that the dead body was discovered in the next morning i.e. morning of 19-7-1984. The deceased was taken away from his house at 11 p.m. The doctor had found sktomach full of digested particles. The death had taken place about 4-5 hours after he had taken the meal. The informant, for the first time, stated in court that the deceased had taken the meal in the evening at about 6 p.m. The learned trial Judge held that medical evidence could not be viewed with mathematical precision and accuracy as held by the Supreme Court in the case of Patti pati Venkayah (1985 SCC (Cri) 464). The learned Judge did not place reliance on the evidence of Anirudh Prasad, PW-7 and Saloni Kumari PW-12 as they are figured during investigation. The learned Judge has based his findings on the evidence of Chandrakala Devi, the sister in law of the deceased and Dropadi Devi the widow. Chandrakala Devi had received the injury on the right hand. She was assaulted with iron rod. In her fardbeyan there is no mention of this fact that she had received any injury on her shoulder. 6. Madhav Prasad Yadav, PW-8, who was sleeping in the dalan of the deceased with Rambilas Yadav (PW-9) and Satya Narayan Yadav, the brother of appellant Chandra Mohan. Chandrakala Devi, sister in law of the deceased, was also sleeping in the western Varandah of the house in occupation of the brother which is separated by a wall. The evidence of this witness is that she could not have come to Osra of the informant. The learned trial Judge did not give any importance to this view. There was no evidence that the house of the deceased was unapproachable. Rambilash Yadav PW-9 has stated that after partition Babulal had constructed a wall which separated the portion of the elder brother. Other witnesses have stated that there is no wall. Madhav Yadav in his cross examination has stated that the house was divided in two brothers and there was no separation wall angan was still open from North and East. Similar statement was made by Chandrakala Devi The learned Judge, therefore, accepted the evidence of both the witnesses who have stated that there was no wall. Madhav Yadav in his cross examination has stated that the house was divided in two brothers and there was no separation wall angan was still open from North and East. Similar statement was made by Chandrakala Devi The learned Judge, therefore, accepted the evidence of both the witnesses who have stated that there was no wall. He accepted the evidence of Chandrakala Devi that she had come to the Varandah of the informant and saw the accused persons taking away the deceased. 7. It is necessary to consider the evidence of Madhav Yadav and Rambilash Yadav who were sleeping in the dalan of the deceased. Satya Narayan Yadav, the brother of the appellant Chandra Mohan, who was also sleeping in the dalan was not examined. This witness Madhav is related to the accused persons. This witness has deposed before the court that the house of the deceased was situated at the end of the Basti. There is no habitation towards south 3 kilometers. Rani Garia Tiku was adjacent to the north of the house of the deceased. The accused persons lived in the same vicinity. This witness stated that there was partition dispute between eight sons of Kathi Raut (brother of Chandra Mohan). There was a panchayati regarding the dispute in which this witness and the deceased were panches. The eight brothers had taken permission for partition from the Chakbandi Officer The stamp papers were produced and the parties had signed on blank stamp paper. Blank stamp paper was handed over to Babulal. The dispute between the brothers continued. Chandra Mohan, Ratneshwar and Katki demanded papers from Babulal. This witness had seen the witness in the house on Wednesday evening. Babulal had not gone to kutchery at that time. There had been altercation between the deceased and Chandramohan over the paper. This witness was sleeping on the eastern portion of the house of the deceased. Anirudh and Bilas were also sleeping in the Verandah. They heard commotion in the angan of the deceased. He went to the angan and saw the wife of Babulal and his sister Chandrakala Devi. His eye sight was poor. He found Dropadi Devi. He was told by Dropadi and Chandrakala that the appellant had taken away babulal after tied with a rope. They were demanding papers from Babulal. The appellants carried away a box containing ornaments and clothes. He went to the angan and saw the wife of Babulal and his sister Chandrakala Devi. His eye sight was poor. He found Dropadi Devi. He was told by Dropadi and Chandrakala that the appellant had taken away babulal after tied with a rope. They were demanding papers from Babulal. The appellants carried away a box containing ornaments and clothes. Dropadi Devi told that the accused persons were carrying the arms. This witness along with other villagers went to the house of Mukhiya and told about the occurrence. Mukhiya went to the police station and met the Sub-Inspector of Police on the way and told him about the incident. This was at about 7 a.m. morning. The Sub-Inspector, Banka police station came to the village at 8 a.m. Fardbeyan of Dropadi Devi was recorded. He along with Sub-Inspector of Police then went to Rani Garia Tikar where the dead body of the deceased was lying. Neck of the deceased was cut. A rope was tagged in the waist. He found a blood stained knife. It should be noted that IO had reached on hearing rumour of the occurrence. The evidence of this witness that he told the Sub-Inspector about the occurrence cannot be accepted. The witness had met the police officer and told him about the entire fact. Secondly the enmate of the house did not raise any alarm immediately after the deceased was taken away from his house. None of the members informed to any body. The witness had gone to the house of Mukhiya along with villagers in the night itself then there was no reason why they went to police station at 7 a.m. If the evidence of IO is accepted then no information was sent to the police station. The Mukhiya was not examined to support this witness. 8. Learned counsel for the appellants submits that it is absurd that the accused persons went to the house to commit the crime without taking any precaution to conceal their identity. Learned counsel further submitted that the learned Sessions Judge recorded the finding that the appellants had gone to procure the stamp paper and they became disperate on that account. The finding is based on surmises and conjecture. Non production of stamp paper before IO speaks volume against the prosecution case. Learned counsel further submitted that the learned Sessions Judge recorded the finding that the appellants had gone to procure the stamp paper and they became disperate on that account. The finding is based on surmises and conjecture. Non production of stamp paper before IO speaks volume against the prosecution case. Learned counsel for the appellants further submitted that the station diary No. 372 dated 19-7-1984 should have been treated as FIR and completely belies the prosecution case because no name of the culprit has been mentioned even to disclose that the deceased was taken away in the night by these persons. It is signigicant to note that the name of the informant has not been mentioned by the investigating officer. No independent villager was examined. The prosecution case rested only on the sole testimony of PWs 10 and 15 who being related to the deceased are highly interested witnesses because of enmity. It is submitted that appellant No. 1 is the eldest member in the family would not commit the murder of his brother who imparted education to the deceased for three years. 9. On review of the evidence I find sufficient force in the contention of the learned counsel for the appellants that the prosecution evidences are not at all reliable to sustain the conviction in the facts and circumstances of the case. The first point is to be noticed that there was considerable delay in informing the police. As a matter of fact no information was given to the police station. The police officer came suo moto on receiving certain information from some body. The appellants have been implicated in this case because the deceased was supporting to the brother of the appellants in the property dispute. Two persons were sleeping outside the house. No hulla was raised by the agnates of the house. Learned Addi. Sessions Judge did not properly appreciate the evidence. The conviction of the appellants is not proper. 10. In the result, all the three appeals are allowed. The conviction of the appellants are set aside and accquitted and they are discharged from their liability of bail bonds. P.K.Sarkar, J. 11 I agree.