Judgment M.L.Visa, J. 1. This appeal is directed against the judgment dated 28.2.92 and order dated 29.2.92 passed by the 1st Addl. Sessions Judge, Begusarai in Sessions Case No. 322/90/12/90 convicting and sentencing the appellant Md. Kari @ Md. Shakid to undergo life imprisonment under Sec. 302, I.P.C. and the appellant. Md. Asim to undergo life imprisonment under Secs. 302/34, I.P.C. 2. Briefly stated the case of prosecution is that on 7.3.90 in the night informant Ram Pratap Choudhary (P.W. 9) along with his deceased nephew Raj Kumar Choudhary was watching an orchard of palm trees. At about 10.00 p.m. two persons entered the orchard and one of them climbed on a palm tree for collecting toddy. The other remained beneath the tree near its root. The informant asked his nephew Raj Kumar Choudhary to go and see who they were. Raj Kumar Choudhary then went near the person who was standing near the tree and some altercations took place between Raj Kumar Choudhary and that man. In the meantime, the. man who had climbed the tree came down and thereafter, they both started assaulting Raj Kumar Choudhary, The informant ran for the rescue of his nephew and raised alarm of chor-chof and found a knife stabbed in the abdomen of his nephew and blood was oozing out from the injury. His nephew was injured and was moaning. Those two persons, who were the appellants, also gave threatening to informant that they would kill him. On hulla of informant Fuchho Sah son of Bengali Sah (P.W. 1), Bindeshwari Rajak (P.W. 2) and others came there and the appellants fled away towards west. The informant took his nephew to the private clinic of Dr. Ram Jatan Singh (not examined), who advised for taking the injured to Padri Hospital, Mokarhah for treatment and the villagers then carried the injured to Padri Hospital. The fardheyan (Ext. 7) of informant was recorded by S.I. Umesh Chandra Jha (P.W. 10) at the private clinic of Dr. Ram Jatan Singh. On the basis of fardheyan of informant, a case under Secs. 323/341/324/307/379/34 of I.P.C. was registered by drawing a formal F.I.R. (Ext. 6). Raj Kumar Choudhary, the nephew of informant on 10.3.90 succumbed to injury and Sec. 302, I.P.C. was added in the F.I.R. The Police after investigation submitted charge-sheet under Secs. 302/34, I.P.C. against both the appellants. 3. On the basis of fardheyan of informant, a case under Secs. 323/341/324/307/379/34 of I.P.C. was registered by drawing a formal F.I.R. (Ext. 6). Raj Kumar Choudhary, the nephew of informant on 10.3.90 succumbed to injury and Sec. 302, I.P.C. was added in the F.I.R. The Police after investigation submitted charge-sheet under Secs. 302/34, I.P.C. against both the appellants. 3. After cognizance, the case was committed to the Court of Session where charge under Secs. 302/34, I.P.C. was framed against both the appellants. The case of appellants before the Court below as it appears from the trend of cross-examination of prosecution witnesses was complete denial of the charge against them and their false implication in this case. 4. In order to prove its case, the prosecution has examined 11 witnesses. Ram Pratap Choudhary (P.W. 9) is the informant, Fucho Sha, son of Bengali Shah (P.W. 1), Bindeshwari Rajak (P.W. 2). Fucho Sail son of Kesho Sah (P.W. 3) are eye-witnesses to the occurrence. Suresh Pd. Choudhary (P.W. 8) is the doctor who had conducted the autopsy on the dead body of deceased. Hare Ram Choudhary (P.W. 4) is a witness on the inquest report. Sipahi Sah (P.W. 5) is the rickshaw-puller, who had carried the deceased to hospital and in whose presence on the next day the informant had produced a chhura before the I.O. Ghanshyam Choudhary (P.W. 6) is the brother of deceased, who had seen the deceased with injury on his abdomen and was told about the occurrence by the deceased when deceased was brought to his house after the occurrence. Ramdeo Choudhary (P.W. 7) has been tendered. Umesh Chandra Jha (P.W. 10), the I.O. Ramashray Singh (P. W. 11).is a formal witness, who has proved the settlement paper (Ext. 8) showing the settlement of palm trees of a graveyard in the name of Ramdeo Mandal, father of deceased. 5. Suresh Prasad Choudhary (P. W. 8) in his evidence has stated that on 10.3.90, he was posted at Barh Sub-divisional Hospital and on that day he conducted post-mortem-examination on the dead body of Raj Kumar Choudhary, the deceased, and found the following ante-mortem injuries on the body: (i) One incised wound 1 1/2" x 1/8" going deep into abdomen (punctured wound) on right hypo chondrium in nipple line (stitched). (ii) One vertical incised and stitched wound (laparotomy wound) 6" into linear opening into abdomen, 3/4" x right, of mid-line from below the epigastria level and on dissection one 4" long stitched wound on transverse column and lot of blood was found in abdominal cavity with haematoma. According to him, death was due to shock and haemorrhage and the injuries found on the dead body were caused by sharp-edged weapon which may be a chhura. In cross-examination, he has stated that injury No. (ii) was caused by doctor to reach injury No. (i) to provide treatment and it was the result of laparotomy. According to him, the duration of death was 30-36 hours from the time of post-mortem-examination. He has proved the post-mortem examination report which is marked as Ext. 3. In his evidence, he has not given the time of holding the post-mortem-examination and has simply given the date but then in Ext. 3 which is post-mortem examination report the time of holding post-mortem examination has been mentioned as 4.40 p.m. on 10.3.90. The time of death as opined by this witness corresponds to the time of-occurrence as alleged by prosecution. The evidence of this witness shows that the death of deceased was homicidal and it was the result of injury caused by chhura (dagger). Now, it has to be seen what evidence has been led by the prosecution against the appellants for making them responsible for causing injury to the deceased which proved fatal. 6 Ram Pratap Choudhary (P.W. 9), the informant, in his evidence has stated that at the time of occurrence he was in his khazoor bani which is known as goriyari also and the deceased Raj Kumar Choudhary was with him. At that time, when two persons from west side came and one of them climbed a palm tree while his companion remained standing beneath the tree, he asked the deceased to go and find out who was collecting toddy and then the deceased went near the man who was standing near the tree and altercation took place between the deceased and that man. The deceased then raised hulla of chor-chor on which Fuchu Sah son of Bengali Sah (P.W. 1), Fuchu Sah, son of Kesho Sah (P.W. 3), Bindeshwari Rajak (P.W. 2) came there and thereafter, the man who had climbed the palm tree came down. The deceased then raised hulla of chor-chor on which Fuchu Sah son of Bengali Sah (P.W. 1), Fuchu Sah, son of Kesho Sah (P.W. 3), Bindeshwari Rajak (P.W. 2) came there and thereafter, the man who had climbed the palm tree came down. He has further stated that the man who had climbed on the tree was appellant Kari Mian and his companion was appellant Asim Mian and thereafter, Kari Mian gave a chhura blow on the abdomen of deceased and he also wanted to give another blow to the deceased but the deceased caught hold of him and when he wanted to catch hold of appellant Kari Mian he was given threatening and thereafter appellant Kari Mian fled away alter leaving the chhura there. He thereafter wrapped a napkin round the abdomen of deceased and brought the deceased to his house along with dagger and called a rickshaw. Raghunandan Sail (not examined) brought rickshaw-puller Sipahi Sail (P.W. 5) with two rickshaws and he then took the deceased to Government Hospital at Begusarai but the doctor present there refused to accept the case and he then took the deceased to the clinic of Dr. Ram Jatan Singh, who also expressed his inability to provide treatment and advised for taking the deceased to Padri Hospital and he then took the. deceased to Padri Hospital at Mokamah by Jeep. He has further stated that chawkidar was with him who went to inform the police at the police station and then the Jamader came at the clinic of Dr. Ram Jatan Singh where his fardbeyan (Ext. 7) was recorded. He has further stated that on the next day in the morning the police reached his house and he showed the place of occurrence to the police and also produced a blood-stained chhura and the police seized the chhura and prepared a seizure-list. About the deceased he has said that the. deceased subsequently died at Padri Hospital, Mokamah. About the appellants he has stated that he identified them in the moonlit night as well as in the light of torch. 7. From the evidence of informant, it appears that he has given a quite different picture of occurrence than mentioned in his fardbeyan (Ext. 7) which has been admitted correct by him and on which he has put his signature (Ext. 2/2). 7. From the evidence of informant, it appears that he has given a quite different picture of occurrence than mentioned in his fardbeyan (Ext. 7) which has been admitted correct by him and on which he has put his signature (Ext. 2/2). In the fardbeyan, he has stated that he saw one man climbing a palm tree and another Standing near the root of tree and he then sent the deceased to find out who they were and when the de-ceased went near the man who was standing near the root of tree that man started quarrelling with deceased and in the meantime, the man who had climbed on the tree also got down and thereafter both of them started assaulting the deceased and when he went there running for rescue of the deceased after raising hulla of chor-chor and reached near the deceased he found a dagger had been pierced in the abdomen of the deceased causing bleeding and the deceased was moaning with pain. He has further stated that those two persons gave him threatenings that they would kill him also and both were the appellants and on hulla when Fucho Sah, son of Bengali Sah (P.W. 1), Bindeshwari Rajak (P.W. 2) and other witnesses came there both the appellants with toddy lied away. In fardbeyan he has not stated that appellant Kari Mian had given a chhura blow oh the abdomen of the deceased. About the dagger, in fardbeyan he has stated that he found the dagger stabbed in the abdomen of the deceased but in his evidence he has stated that, appellant Kari Mian wanted to repeat the blow by dagger to the deceased but thief deceased himself caught hold of his hand and when he wanted to catch appellant Kari Mian he after giving him threatenings fled away leaving behind the dagger. The I.O. (P.W. 10) in his evidence has stated that the informant in his earlier statements before him had stated that while taking he deceased to hospital he (informant) had taken out the dagger which appellant Kari Mian and stabbed in the abdomen of deceased. The I.O. (P.W. 10) in his evidence has stated that the informant in his earlier statements before him had stated that while taking he deceased to hospital he (informant) had taken out the dagger which appellant Kari Mian and stabbed in the abdomen of deceased. So, we find that on the point of stabbing a dagger by appellant Kari Mian there is major contradictions in the statements of informant in fardbeyan, in his evidence and in his statements before the I.O. These contradictions cannot be ignored because these contradictions are major contradictions as the entire case of prosecution is based on this vital issue that appellant Kari Mian gave a dagger blow on the abdomen of deceased resulting into his death. The informant in para 15 of his evidence has stated that when he came near the palm tree then appellant Kari Mian came down from the tree and then he recognised him. The Court below in its judgment has taken this evidence quite natural by observing that because a person cannot identify another from long distance and he can identify after reaching near him and the evidence of informant that he saw the appellant Kari Mian giving dagger blow in the stomach of deceased is not against his statements made in fardbeyan and the informant must have seen the appellant Kari Mian giving dagger blow to the deceased when he was rushing towards his nephew to rescue him. In our opinion, the view of Court below that a man cannot identify another from long distance and he can identify only when he reaches near him and the informant while he was running towards his nephew saw the appellant Kari Mian giving dagger blow to deceased are contradictory to each other. If the informant could not have identified the appellant Kari Mian before going near him how he could have seen him giving a dagger blow while he was running towards the deceased and before reaching there. Besides this, the I.O. in his evidence has stated that the informant in his statements before him had stated that it was appellant Asim Mian who had climbed on the tree and appellant Kari Mian was standing below the tree and the informant had further stated that the deceased had told him that a dagger had been stabbed in his abdomen. If the deceased had told the informant that a dagger had been stabbed in his stomach it clearly suggests that the informant had not seen the stabbing as he was told about it by the deceased. Fucho Sah son of Bengali Sah (P.W. 1), Bindeshwari Rajak (P.W. 2) and Fuchu Sah son of Kesho Sah (P.W. 3) according to the case of prosecution are other eye-witnesses to the occurrence. Fucho Sah son of Bengali Sah (P.W. 1) in his evidence has stated that at the time of occurrence he was at his barn and his brother Anirudh Sah and his son Yogendra Sah were also with him. He heard hulla of informant and he then went to the place of occurrence where he found that scuffling was going on between the appellant Asim Mian on one side and the informant and deceased on the other side and appellant Kari Mian came down from a palm tree and gave a dagger blow on the abdomen of the deceased. In para 8 of his evidence he has stated that on hearing hulla he along with his brother Anirudh Sah and his son Yogendra Sah went to the place of occurrence but Anirudh Sah and Yogendra Sah are not the witnesses in this case. The I.O. (P.W. 10) in his evidence has stated that this witness had stated before him that he had seen the deceased running away towards east saving that appellant Kari Mian had assaulted him with dagger and he had not stated that when he went to the place of occurrence he saw appellant Asim Mian standing near the deceased and appellant Kari Mian had given a dagger blow on the abdomen of the deceased. This witness has stated that he identified the appellant in the moonlit night as well as in the light of torch but the I.O. in pata 17 of his evidence has stated that this witness had not given, before him, such statements. So, we find that this witness in his earlier statements had not stated that he had seen appellant Kari Mian giving a dagger blow but in his evidence he has claimed himself to be an eye-witness to the occurrence. In view of this major contradiction in his evidence and his earlier statements, his evidence becomes doubtful. So, we find that this witness in his earlier statements had not stated that he had seen appellant Kari Mian giving a dagger blow but in his evidence he has claimed himself to be an eye-witness to the occurrence. In view of this major contradiction in his evidence and his earlier statements, his evidence becomes doubtful. Bmdeshwari Rajak (P.W. 2) in his evidence has stated that at the time of occurrence he had gone for easing when he heard hulla of chor-chor and when he went there he found a scuffle was going on between appellant Kari Mian and the deceased and when appellant Kari Mian saw him he fled away and he did not identify anybody else. In the same breath, he has said that appellant Kari Mian had given a dagger blow on the abdomen of the deceased. Although he has identified appellant Asim Mian in the dock when he was examined in. the Court below but he has not stated anything about appellant Asim Mian. His evidence given in examination-in-chief itself is of a very peculiar nature because as stated above he has said that appellant Kari Mian, who was scuffling with deceased fled away when he saw him but again he says that, appellant Kari Mian had given a dagger blow on the abdomen of the deceased. Now considering the evidence of informant, P.W. 1 and this witness (P.W. 2) on the point of scuffling we find that all have given contradictor statements. According to the informant the scuffling took place between appellant Asim Mian and the deceased and when appellant Kari Mian came down from the would lie caught. According to P.W. 1 scuffling took place between the deceased and informant on one side and Asim Mian on the other side whereas P.W. 2 says that scuffling was going oil between appellant Kari Mian and the deceased. As stated earlier P.W. 2 has not stated even the presence of appellant Asim Mian at the place of occurrence, P.W. 2 says that he identified the accused in the light of torch but I.O. (P.W. 10) has said that this witness had not stated that he identified accused in the light of torch. As stated earlier P.W. 2 has not stated even the presence of appellant Asim Mian at the place of occurrence, P.W. 2 says that he identified the accused in the light of torch but I.O. (P.W. 10) has said that this witness had not stated that he identified accused in the light of torch. Admittedly, the occurrence took place in an orchard of palm trees at about 10.00 p.m. considering the time and place of occurrence the question of source of light for identifying the appellant becomes very important and if a witness in his evidence stales that he identified the appellants in the light of torch but he is silent on this point in his earlier statements then this omission becomes very important Omission. Fucho Sah, son of Kesho Sah (P.W. 3) has stated that at the time of occurrence he was in the barn of chillies belonging to Kucho Sah, son of Bengali Sah (P.W. 1) and at that time he was his labourer. Me heard hulla and thereafter he went to the place of occurrence and he found that informant. Fucho Sah. son of Bengali Sah (P.W. 1), Arurudh Sail were there and an altercation was going on between Asim Mian and deceased, and thereafter, appellant Kari Mian gave a dagger blow on the abdomen of deceased. This witness was not examined by I.O. during the course of investigation and he is not a charge-sheeted witness. It appears that on 26.3.90 he was produced before Court by the informant for recording his statements under Sec. 164, Cr.P.C. and his statements were recorded. According to his evidence at the time of occurrence, he was in the barn of chillies of P.W. 1, but P.W. 1 in his evidence has nut stated that at the time of occurrence this witness was also with him. P.W. 1 has stated that at that time only his brother Anirudh Sah and his son Yogendra Sah were with him. In his evidence he has stated that when Kari Mian was on the tree he was carrying a dagger in his right hand and labni (a pot for carrying toddy) in his loft bund. In view of this evidence, it does riot seem probable that. Kari Mian would have come down from a tree carrying a dagger in one hand and labni in other hand. In view of this evidence, it does riot seem probable that. Kari Mian would have come down from a tree carrying a dagger in one hand and labni in other hand. In para 9 of his evidence, he has stated that after giving chhura blow, appellant Kari Mian took out. chhura and fled away. This is against the evidence of informant according to whom appellant Kari Mian left the chhura at the place of occurrence which was subsequently produced by him before the I.O. and which has also been produced in the Court as Material Ext. 1. The informant as stated above in his evidence has tried to implicate the appellants by giving such statements which he had not given in his fardbeyan. The conduct, of informant shows that he has tried to develop the case by introducing new facts in his evidence. P.W. 3 is not named in fardbeyan and as stated above was not examined during the course of investigation and he is not a charge-sheeted witness but. he was produced by informant before a Magistrate for recording his statements under Sec. 164, Cr.P.C. So The possibility of P.W. 3 a tutored witness cannot be ruled out. Notwithstanding this fact, the evidence of P.W. 3 is not consistent, to the evidence of informant and for this reason also his evidence does not. inspire confidence. 8. The case of prosecution is that appellant Kari Mian gave only one dagger blow to the deceased and the informant wrapped a napkin round the injury and then the deceased was taken to the hospital. Suresh Prasad Choudhary (P.W. 8), the doctor who had conducted the autopsy on the dead body of deceased had found two injuries on the deceased and according to him the second injury was made by the doctor to reach at the first injury to give treatment. The prosecution has not examined any doctor to say that he had made the second injury. The inquest report (Ext. 1) shows that when the police prepared inquest report after the death of deceased it found a gamchha (napkin) wrapped round the abdomen of deceased. The prosecution has not examined any doctor to say that he had made the second injury. The inquest report (Ext. 1) shows that when the police prepared inquest report after the death of deceased it found a gamchha (napkin) wrapped round the abdomen of deceased. It is very peculiar that the napkin which was wrapped round the stomach of deceased immediately after he received injury remained at its place even after the death of deceased which took place three days after the occurrence and in the meantime, the deceased was operated upon by a surgeon and given treatment. This also shows the conduct of prosecution that even after the death of the deceased napkin was again put on his stomach to support the case of prosecution that a napkin was wrapped round the stomach of deceased after he received injury. Notwithstanding this fact, we find that the evidence of informant and P.W. 1, P.W. 2 and P.W. 3 who are said to be the eye-witnesses of the occurrence are quite contradictory on the point of manner in which the occurrence took place and they identified the appellants. The other witnesses are not the eye-witnesses to the occurrence. Out of them Ghanshyam Choudhary (P.W. 6) is the brother of deceased, who has said that the deceased after receiving injuries had come to the house and raised hulla and told him that appellant Kari Mian had given him a dagger blow. In his cross-examination, he has stated that he has not given the statements which he has given in his evidence, anywhere before. Admittedly, ho in a hearsay witness and his evidence that the deceased alter received injuries came to the house raised hulla and told him about the occurrence is not supported by the evidence of Fucho Sah, son of Bengali Sah (P.W. 1) who has stated that the deceased after receiving injuries fell down at the place of occurrence and was then taken to his house. About the evidence of Sipahi Sah (P.W. 5), we find that he is a rickshaw-puller, who had taken the deceased to hospital and in whose presence the informant has produced a dagger before the I.O. Admittedly, he is not an eye-witness to the occurrence. 9. The defence has examined two witnesses who are Md. Ashaghar (D.W. 1) and Sita Ram Sharma (D.W. 2). 9. The defence has examined two witnesses who are Md. Ashaghar (D.W. 1) and Sita Ram Sharma (D.W. 2). D.W. 1 in his evidence has stated that appellant Asim Mian is brother and appellant Kari Mian is his nephew and he had filed a case against Fucho Sah, son of Bengali Sah (P.W. 1) in which both the appellants were witnesses from his side. D.W. 2 has proved a complaint petition (Ext. A) filed by D.W. 1 against Yogendra Sah and others. According to the defence because D.W. 1 had filed a criminal case against P.W. 1, therefore, P.W. 1 has turned up as a witness against the appellants in this case. If the enmity between P.W. 1 and appellants is not taken as a reason for disbelieving the evidence of P.W. 1 even then we find that evidence of P.W. 1 suffers from a number of contradictions which make his evidence not trustworthy. 10. Considering, the entire evidence on record, we find that although the prosecution has been able to prove that the death of deceased was homicidal but so far as appellants are concerned, it has not been able to prove that the appellants were responsible for the death of deceased. The evidence of informant and other witnesses, who have claimed to be eyewitnesses to the occurrence, is quite contradictory to each other and does not inspire confidence. In such circumstances, their evidence cannot be believed. 11. In the result, this appeal is allowed and the judgment and order of the Court below convicting and sentencing both the appellants is set aside. As appellant No. 1, Md. Kari @ Md. Shahidis in jail custody, he is ordered to be released forthwith, if not wanted in any other case. S.K. Katriar, J. I agree.