Judgment R.N.Sahay, J. 1. There are four appellants in this appeal. They have challenged the legality of their conviction under Sec. 302/34. IPC for which they have been sentenced to rigorous imprisonment for life by the 1st Additional Sessions Judge. Dumka in Sessions Trial No. 18/19 of 1985/85. The judgment was pronounced on 10th January, 1986. 2. The story unfolded by the witnesses in course of trial may be narrated as follows. 3. Dumka (Mufasil) P.S. Case No. 26(4) 83 was registered against these four appellants on the fardbeyan of Kodo Singh recorded on 28-4-1983 at 5 P.M. by Md. Hanif, S.I. of masjore out Post. Appellant Nos. 2 and 3 are the sons of first appellant Gajadhar Singh. Appellant No.4 Nunu Mani is the Bhagina of appellant No.1. 4. The fardbeyan (Ext. 2) revealed that on 27-4-1983 at about 8 p.m. Kodo Singh, Bidesh Rai, Sadhu Rai, Lakhi Singh (all prosecution witnesses) and the first appellant Gajadhar Singh were sitting in the Anagan of informant Kodo Singh. Appellant Gajadhar Singh was taking oddy there. In the meantime Nandan Singh son of Kodo Singh came there and questioned appellant Gajadhar Singh as to why he was defaming him by calling him thief before his in-laws who lived in a different village 3 kilometres away from village Damri, the village of the appellants and the witnesses. Nandan Singh challenged him to prove the allegation. This followed some altercation between Gajadhar Singh and Nandan Singh. Durga Singh, another son of Kodo Singh, was also present in the house. Sadhu Rai, Tej Nantin singh and Bideshi Rai who were present there separated both of them. Nandan Singh did not go inside the house but from same reason he went to the house of Tej Narain Singh, Gajadhar Singh, however, threatened Nandan Singh to kill him. After some time Gajadhar Singh armed with arrow, Mahendra Singh armed with Barcha. Nunimani Singh armed with lathi and Nukul Singh armed with Hasua (used for cutting palm tree) came to the house of Nandan Singh and searched him with a view to kill him. As Nandan Singh was not found they returned. Nandan Singh came to his house after departure of the appellants. He took his meal and went to bed. At about 10.30 p.m. Nandan Singh got up and went towards the south of his house to urinate. As Nandan Singh was not found they returned. Nandan Singh came to his house after departure of the appellants. He took his meal and went to bed. At about 10.30 p.m. Nandan Singh got up and went towards the south of his house to urinate. As soon as he went out his father, brothers and others witnesses heard Nandan Singh shouting "Marlko Ho Dhoro". Appellant Mahendra Singh was heard saying that "Paye Isko Maro". 5. Hearing the alarm of Nandan Singh, Durga Singh, Kodo Singh, Lakhi Singh and Amawati Devi came out of their house and saw the appellants chasing Nandan Singh towards Masanjore Dangal. The witnesses further say that Nandan Singh was being brutly assaulted by these appellants at the distance of 200 yards from the house of Nandan Singh. It was moon-lit night. Other witnesses arrived after the occurrence. Kodo Singh narrated the occurrence to the witnesses. 6. Kodo Singh immediately went to Masanjore out Post at about 9 a.m. in the morning and gave the version of the occurrence to the In-charge Masanjore outpost. 7. Md. Hanif, the investigating officer, took up the investigation and visited the place of occurrence village on the same day. The dead body of Nandan Singh was found lying in Masanjore Duwa field. After investigation chargesheet was submitted against the appellants. 8. The appellants in their defence pleaded false implication due to enmity. From the trend of cross-examination of the witnesses, it appears that the defence of the appellants was that Nandan Singh (deceased) was of bad character and many persons of the locality were aggrieved with him. One Loknath Sah of Goaltola village had brought a case against the deceased Nandan Singh and the witness Sadhu Rai in which they were convicted. Nandan Singh was murdered without the knowledge of his father and another witnesses. Kodo Singh taking advantage of the situation found convenient to implicate the appellants because of the prevailing enmity. 9. The learned Addl. Sessions Judge found that witnesses Lakhi Singh. Durga. Kodo Singh and Amawati Devi (sister of Laxmi Singh) were the eye-witnesses. The learned Addl, Sessions Judge impressed by the evidence of these "four eye-witnesses found the appellants guilty. The learned Addl. Sessions Judge divided the events of entire occurrence in three parts. The first part was that when Gajadhar Singh was taking toddy Nandan Singh came there and there was some scuffle. The learned Addl, Sessions Judge impressed by the evidence of these "four eye-witnesses found the appellants guilty. The learned Addl. Sessions Judge divided the events of entire occurrence in three parts. The first part was that when Gajadhar Singh was taking toddy Nandan Singh came there and there was some scuffle. The second part was that all the accused persons came with deadly weapons in search of Nandan Singh with a view to kill him and the last part was that of actual murder of Nandan Singh. 10. Dealing with the first part the learned Addl. Sessions Judge considered the evidence in paragraph No.8 of his judgment as follows: "Now I will proceed to deal the first part which is the genesis of the whole case PWs 1 to 4. 6 and 7 have fully supported this part of the occurrence. Kodo Singh PW 3 is the informant of this case on whose statement the fardbeyan was recorded and the case was instituted. He has full supported his previous statement in fardbeyan (Ext. 2) when he has categorically stated before me that at about 8 p.m. he along with Lakhi Singh PW1, Durga Singh PW 2. Sadhu Rai PW 4. Bidesh Rai PW 6 and Tej Narain Singh PW 7 were in, his house when accused Gajadhar Singh who was also present there was taking toddy. In the mean time his son Nandan Singh came there from outside and asked Gajadhar Singh as to why he is calling him as Chore in his Sasural and also in the village. He further asked him to prove this fact that he is a thief. This followed by some altercation between them. Accused Gajadhar Singh became furious 2nd became ready to assault Nandan Singh but the other persons who were present there separated them and accused Gajadhar Singh went to his house whereas Nandan Singh went to the house of Tej Narain Singh PW 7. His such statement is fully corroborated by PWs 1, 2, 6 and 7. Even PW 4 who has been declared hostile by the prosecution, has supported this part of the prosecution story in toto. All the aforesaid witnesses have been cross-examined at the length by the learned defence: Counsel to test their testimonies but they stood fairly well. I do not find any contradiction worth the name to discredit their testimonies. Even PW 4 who has been declared hostile by the prosecution, has supported this part of the prosecution story in toto. All the aforesaid witnesses have been cross-examined at the length by the learned defence: Counsel to test their testimonies but they stood fairly well. I do not find any contradiction worth the name to discredit their testimonies. So I hold that the prosecution is able to prove this part of the prosecution story beyond doubts." 11. The evidence relating to second part has been considered in paragraph 9 as follows: "Now coming to the second part of the prosecution story, I find that the prosecution is able to prove this aspect of the story also by examining the witnesses named above. PW1 is Lakhi Singh who has stated in para 3 that after half an hour of aforesaid occurrence accused Gajadhar Singh armed with bow and arrow Mahendra Singh having bhala in his hand, Nunumani Singh armed with lathi and accused Nakul Singh having Churi which is used in cutting palm tree came and searched out the deceased Nandan Singh. They were saying that they will kill Nandan Singh, when they did not find Nandan Singh, they returned back. PW 2 is the son of Kodo Singh and brother of the deceased Nandan Singh. He has fully corroborated the aforesaid statement of PW 1 except that he has stated that the accused persons came after an hour of the first incident. But difference in hour is immaterial because none has watch in their hands. PW 3 the informant also corroborates the aforesaid fact with a difference that he has introduced Barchan in the hand of accused Mahendra Singh. PWs 4 and 6 also corroborated the aforesaid statement of the other witnesses. According to PWs 4 and 6 Mahendra Singh was armed with bhala. So I find the only difference of bhala and barcha PW 4 although a hostile witness, his explained bhala and barcha in para 10 of his evidence. He has stated that Mahendra Singh was armed with barcha because it was pointed and round. According to him, they used to call such weapon as bhala and also barcha. So this makes no difference. He has stated that Mahendra Singh was armed with barcha because it was pointed and round. According to him, they used to call such weapon as bhala and also barcha. So this makes no difference. All the witnesses mentioned have been cross-examined on this point also but I do not find any ground to accept this view of the defence that they are inimical to the accused persons and are likely to depose against them. There is nothing on the record to show that there is any previous enmity between the informant and his witnesses on the one side and the accused persons on the other hand. So I do not find any ground to disbelieve their testimonies." 12. The last part i.e. the evidence regarding actual murder of Nandan Singh has been considered in paragraph No. 10 of the judgment as follows: "Now the main point of murder has to be considered in the light of the evidence on record. PWs 1. 2. 3 and 5 are the eye-witnesses of the alleged murder of Nandan Singh by the accused persons PW 1 Lakhi Singh is admittedly closely related with Kodo Singh. The grand father of this witness was own brother of Kodo Singh. But only on this ground his evidence cannot be thrown in waste paper basket. He has stated that on hulla he and his sister Amawati Devi PW 5 came out of their house, which is in front of the house of Kodo Singh. Kodo Singh and Durga Singh father and brother of the deceased also came out of their house and all the four moved towards south and they saw all the accused persons chasing Nandan Singh who was running. He has further stated that when Nandan Singh reached near Masanjore Dangal, accused persons started assaulting him. Accused Mahendra Singh assaulted him with bhala and Gajadhar Singh pierced arrow. Nunumani Singh assaulted with lathi. He has not named accused Nukul Singh among the assailants. In the cross-examination he has stated that he had seen the occurrence from the village land and thereafter returned back. He further stated that again he went towards the went and saw Nandan Singh dead. The learned lawyer of the accused persons submitted that from the lane he cannot see the alleged murder by the accused persons. He has given topography. He further stated that again he went towards the went and saw Nandan Singh dead. The learned lawyer of the accused persons submitted that from the lane he cannot see the alleged murder by the accused persons. He has given topography. According to him there is a village lane which runs east-west and on both sides of the lane there were houses. The house of Kodo Singh is situated towards south whereas his own house is situated towards north and the alleged occurrence is said to have taken place on the south of the house of Kodo Singh. So it is doubtful for a person to see the alleged occurrence from the land, which has happened about 200 yards away from the house of Kodo Singh. But as I have already mentioned to above that the whole occurrence has three parts and he is an eye-witness of all the parts from beginning to end. So he might have been to say about the second part of the story from the village lane. It is worth to mention here that he has stated that Gajadhar Singh came in his house and demanded fire and thereafter accused persons were standing in the lane. This is about the second part of the story. So there does not appear to me any material contradiction to disbelieve his testimony". 13. The moot point for consideration is whether the evidence extracted above as found by the learned Addl. Sessions Judge is reliable enough to bring home the charges against the appellants. 14. Learned Counsel Shri Pramod Kumar who has argued the case of the appellants with clarity highlighted certain aspect of the evidence, which according to the learned Counsel would go to show the alleged genesis of the occurrence as artificial and untrue. None of the witnesses who claimed to have been the occurrence with their own eyes can be said to be reliable and truthful witnesses which is established by surrounding circumstances. 15. The entire evidence may be summaries as follows: (a) At about 8 p.m. Gajadhar came to the house of Kodo Singh (complainant) to take toddy in presence of Sadhu Rai PW 4. Bideshi Rai PW 6. Tej Narain Singh PW 7 and Lakhi Singh PW 1. His evidence is that the house of Gajadhar Singh was at a considerable distance from the house of Kodo Singh. Bideshi Rai PW 6. Tej Narain Singh PW 7 and Lakhi Singh PW 1. His evidence is that the house of Gajadhar Singh was at a considerable distance from the house of Kodo Singh. It is not clear why he had come to the house of Kodo Singh to take toddy alone. The evidence regarding taking of toddy is not consistent. (b) Nandan Singh came from outside and questioned as to why he branded Nandan to be a thief before his Sasural people and demanded proof. Gajadhar flared up abused him and gave threatening that he would kill him. There is no evidence why such allegation was made by Gajadhar, Gajadhar flared up without denying the allegation and threatened to kill Nandan. The witnesses sitting there kept silent Gajendhar was taken to his house. Nandan Singh was taken to the house of Teju Singh. (c) After half an hour of the above incident appellants Gajadhar. Mahendra Singh, Nunumani and Nakul Singh variously armed came and asked where about of Nandan Singh. Nandan Singh was still in the house of Teju. They left having not found Nandan Singh in his house. (d) Nandan Singh returned to his house at 10 P.M. Nandan Singh came out and want towards south to urinate. Lakhi Singh heard voice of Mahendra who was shouting to kill Nandan. Lakhi Singh and his sister Hemawati came out from her house. Kodo Singh and Durga Singh also came out of their house. These persons went towards South and saw appellants chasing Nandan Singh up to Masanjore Duba where all the appellants assaulted him with their respective weapons. On Hulla Bideshi Rai and Satendra Rai came. Nandan Singh was found dead. 16. Lakhi Singh PW 1 is closely related to Kodo Singh. Kodo Singh is his grand father. This witness has deposed that his village consists of 30-32 houses. There were several houses near the house of Kodo Singh. Nandan Singh lived in his Sasurals Ghar at village Modjora-10 Kms. away from his basti. It is curious enough that he did not say about taking of toddy. This witness says that Nandan Singh used abusive language against Gajadhar. After the incident the witness went to his house. Lakhi Singh and his sister were taking meal. On hearing hulla Gajadhar came to his house and asked for fire. Other accused persons stood in the Gali. They left after sometime. This witness says that Nandan Singh used abusive language against Gajadhar. After the incident the witness went to his house. Lakhi Singh and his sister were taking meal. On hearing hulla Gajadhar came to his house and asked for fire. Other accused persons stood in the Gali. They left after sometime. He further stated that the accused persons after taking fire left the place. In para 18 of his cross-examination this witness stated that on hull a he came out and went to the door of Kodo Singh. He saw the occurrence from there. After one hour he returned his house and went towards south. Nandan Singh was found dead. He raised hulla. Thereafter villagers arrived but the statement of this witness is contrary to what he has stated in examination in chief. It is doubtful whether he had seen Nandan Singh being chased and assaulted. 17. Durga Singh PW 2, the own brother of the deceased has witnessed the occurrence. This witness has stated that at about 8 P.m. Nandan Singh went out of the house in the late night. He heard the voice of Mahendra Singh. On hearing hulla he and his father Kodo Singh came out. Then Lakhi Singh and his sister also came out of their house. They started running towards South. They saw appellants assaulting the deceased. On hulla Bideshi Rai, Teju Singh and Sadhu Rai came. It is significant to note that according to his evidence, Nandan Singh went towards the south during night. It is highly unnatural. There was no necessity of giving towards South. He could have urinated near his house. Secondly, the deceased has seen the accessed persons. This witness stated that the deceased on the fateful day came to Chaklata Mela. He had gone to his sasural. Chaklata is about 4 miles from his village. In para 19 he has stated that the deceased had taken rice, pulses and Saljam at about 10 p.m. This witness was massaging the leg of his father. At that time Gajadhar and Nunumani Singh asked for fire from Lakhi Singh. The accused persons asked about Nandan Singh. The appellants entered the house of Nandan Singh. This witness remained with the appellants for about half an hour. 18. Kodo Singh, the informant, father of the deceased Nandan Singh in his evidence has stated what he had stated in his fardbeyan. The accused persons asked about Nandan Singh. The appellants entered the house of Nandan Singh. This witness remained with the appellants for about half an hour. 18. Kodo Singh, the informant, father of the deceased Nandan Singh in his evidence has stated what he had stated in his fardbeyan. He claims to have seen the appellants inflicting injuries on Nandan Singh with their weapons. The other witnesses, namely, Teju Singh, Sadhu Singh and Bideshi Rai came later. They had not seen the assault. Kodo Singh went to Mukhia. Durga Singh went to choukidar. Kodo, Singh went to Masanjor outpost not with Mukhia. Mukhia has not been examined; He went to the outpost not on the same night but on the next day at 9.30 a.m. though outpost was not far from the place of occurrence. In his cross-examination, he has stated that Gajadhar Singh was taking toddy alone. He was not with Gajadhar at that time. His son was with him. The house of Gajadhar is situated in the eastern end of the village, and the house of this witness on the western end: This witness and two sons were taking meal at 9.30 P.M. This witness was sleeping on the northern Varandah of his house. At 10.30 P.M. Nandan Singh went out through the Varandah where this witness was sleeping. He heard hulla. He came out to Gali. Then Teju Singh, Lakhi Singh and his sister came out. He claims to have seen the assault from a distance of 300 yeards. This witness is inconsistent with his chief wherein he stated that he came after Nandan Singh was dead. Sadhu Rai, PW 4, had not seen the occurrence. He had not heard any hulla in the night. This witness has stated that Durga Singh came to his house and informed that his brother has been murdered. He has seen the appellants with weapons after the quarrel. This witness was declared hostile. Amarwati Devi, PW5, sister of witness Lakhi Singh claims to have seen the assault. Bideshi Rai, PW 6 neighbour of Kodo Singh was present when there was quarrel in between the deceased and Gajadhar. Gajadhar singh spoke that Nandan Singh was thief and of bad character. Gajadhar Singh threatened Nandan Singh. Nandan Singh and Gajadhar Singh took out their Chappals. They were separated. Nandlal left the place. He could not say where he had gone. Gajadhar singh spoke that Nandan Singh was thief and of bad character. Gajadhar Singh threatened Nandan Singh. Nandan Singh and Gajadhar Singh took out their Chappals. They were separated. Nandlal left the place. He could not say where he had gone. This witness came out and saw the accused persons having weapons. They were searching for Nandan Singh. Kodo Singh told him that his son was killed. Kodo Singh narrated how Nandan Singh was killed. In his crossexamination this witness stated that Kodo Singh came and asked him to find out what had happened. He did not speak anything. Kodo Singh did not tell him that he had seen the appellants assaulting the deceased. Kodo Singh. Lakhi Singh. Sarju and Teju Singh went along with him. He saw that the dead body was laying 200 yards away from the village in a ditch. He saw arrow wound in the shoulder of Nandan Singh. He had not named the villagers who had gone to the place of Occurrence. Tej Narain Singh. PW 7 another neighbour of Kodo Singh was present. This witness has stated that Kodo Singh went to his house and told him about the occurrence. He did not fell about the occurrence in detail. He did not say where Nandan Singh was assaulted. He went to the place where the dead body of Nandan Singh was lying. Md. Hanif was the Officer In-charge of Masanjor outpost. He recorded the fardbeyan of Kodo Singh at 9 a.m. At Masanjor Duwa. The fardbeyan was forwarded to Mufasil Police Station for registration of a case. This witness investigated of a case. He reached the place of occurrence at 11.40 a.m. and inspected the place of occurrence. The dead body was found 200 yards from the south of the house of Kodo Singh. 19. Dr. B.N. Tatarway, who was posted as Medical Officer. Dumka Sadar Hospital on 29-4-1983 conducted postmortem on the dead body of Nandan Singh. The dead body was bloated in appearance on account of gasses of decomposition. The following ante mortem injuries were found on the dead body. (i) One incised wound 1-1/2 x 3/4 x piercing the laryax (voice box) over the front of the neck on the right side. (ii) Simple fracture of 6th , 7th and 8th ribs on the right side and 6th and 7th ribs on the left side of the chest. The following ante mortem injuries were found on the dead body. (i) One incised wound 1-1/2 x 3/4 x piercing the laryax (voice box) over the front of the neck on the right side. (ii) Simple fracture of 6th , 7th and 8th ribs on the right side and 6th and 7th ribs on the left side of the chest. (iii) One bruise 2" x 3/4" obliquely situated over the outer aspect of the left forearm with simple fracture of both the radious and ulna bones of the left forearm at the site. (iv) Bruise 3" x 1" over the outer respect of the right leg. The doctor found stomach empty. Bladder was full of urine. According to doctor food rice. Vegetable and Dal is digested within 4/6 hours. 20 On review of the evidence in my opinion the motive suggested by the prosecution for brutal murder of Nandan Singh appears to be flimsy. It is well settled that the motive is of little consequence if the evidence of the eyewitnesses is reliable. The evidence regarding quarrel between Gajadhar and Nandan Singh is consistent but later part of the story that immediately after quarrel the appellants came with arms to kill Nandan Singh does not appear to be consistent and reliable. Even if this part of the story is accepted the conviction of the appellants cannot be sustained unless the evidence of third stage of the occurrence is accepted. The evidence is that Nandan Singh went out of the house to urinate. I am not inclined to accept this evidence. As he was aware that the appellants had come with arms in search of him when he was in the house of Teju Singh there was no necessity for him to go out of the house and seeing the accused persons he would have run away and take shelter in his own house. Durga Singh brother of the deceased stated that he had gone later and found the dead body of Nandan Singh. The neighbours of Kodo Singh have not stated that Kodo Singh told him about the actual assault. Two witnesses have stated that Kodo Singh only disclosed that Nandan Singh has been killed. Kodo Singh himself stated that Nandan Singh did not tell him where he was going in the night. The neighbours of Kodo Singh have not stated that Kodo Singh told him about the actual assault. Two witnesses have stated that Kodo Singh only disclosed that Nandan Singh has been killed. Kodo Singh himself stated that Nandan Singh did not tell him where he was going in the night. Lastly post mortem report completely demolishes the prosecution case that Nandan Singh had taken meal in his house at 10.30 p.m. The evidence is that he had taken rice pulses etc. at 9 p.m. The doctor found stomach empty. The evidence is that Nandan Singh left the house at 10 to 10.30 p.m. It is absolutely unreliable. It is clear that the murder took place in another manner without the knowledge of the witnesses. The dead body was found in the late night. There was delay in lodging the FIR Masanjore outpost is not far away from the place of occurrence. Mukhia and Choukidar have no been examined although Kodo Singh and Durga Singh contacted with Mukhia and Choukidar. Other infirmities need not be noticed since my above finding is sufficient to discard the prosecution story. The investigation is not satisfactory. The other neighbours must have came out of their houses, if hulla was raised in the night. 21. In the result. I am constrained to hold that the allegation against the appellants are not proved beyond reasonable doubt. This appeal is allowed. The conviction of the appellants is set aside by giving benefit of doubt. The appellants are acquitted and discharged from the liability of bail bonds.