Judgment R.N.Sahay, J. 1. In Sessions Trial No. 247/85/12/86 on the file of 3rd Additional Sessions Judge, Aurangabad Bandhu Yadav, Bishundeo Yadav, Ram Deni Yadav and Fekan Yadav were tried having been charged under Section 302/34, IPC for causing the death of Ganeshi Yadav. Bandhu Yadav was separately charged under Section 302, IPC by judgment dated 19.1.1987. Bandhu Yadav was convicted under Section 302, IPC and remaining three accused persons were convicted under Section 302/34, IPC. All of them have been sentenced to undergo rigorous imprisonment for life. Two separate appeals have been preferred against the said judgment. 2. Criminal Appeal No. 82/87 has been preferred by Bandhu Yadav and Bishundeo Yadav and Cr. App. No. 96/87 has been preferred by Ramdeni Yadav and Fekan Yadav. 3. This judgment will dispose of both the appeals. 4. The appellants are residents of village Pandeypur. The occurrence took place in the said village. In the night of 28.4.1985, Maheshi Yadav was sleeping outside of his house. His brothers Ganeshi Yadav,. Kameshwar Yadav and Rakesh Yadav, were also sleeping on separate costs. In the late night, Maheshi Yadav woke up hearing barking of dog. He noticed all the four accused persons in torch-light switched on by the appellant Bishundeo Yadav. Bandhu yadav was armed with garasa and Fekan Yadav was armed with gun. Bishundeo Yadav was having a torch and Ramdeni Yadav armed with lathi. They asked from Kameshwar Yadav who was also sleeping there. After ascertaining Ganeshi Yadav accused Bandhu Yadav started assaulting on Ganeshi Yadav with garasa. Injuries were caused in the neck, chest and forehead of Ganeshi Yadav, who died instantaneously. Maheshi Yadav wanted to raise hulla but he was threatened, so he could not call for help. Thereafter, the appellants fled away towards west to the village. In the meantime, villagers arrived. Maheshi Yadav disclosed the names of miscreants. 5. In the month of Kartik, there was a theft in the house of Maheshi Yadav. Choukidar advised him not to go to Police Station since thieves could not be identified. Appellant Bishundeo advised otherwise. He advised the matter to be reported. In fact Bishundeo was himself a suspect. Bishundeo refused to hand over stolen articles. The Mukhiya was reluctant to take any action. A panchayati was convened but Bishundeo did not turn up. This is said to be the motive of murder of Ganeshi Yadav. Appellant Bishundeo advised otherwise. He advised the matter to be reported. In fact Bishundeo was himself a suspect. Bishundeo refused to hand over stolen articles. The Mukhiya was reluctant to take any action. A panchayati was convened but Bishundeo did not turn up. This is said to be the motive of murder of Ganeshi Yadav. It is worthwhile to mention here that Bishundeo himself was a suspect. 6. The appellants were tried on the basis of the prosecution case set out above. 7. The prosecution case is that rift started between the two parties after the theft in the house of Ganeshi Yadav. The occurrence happened between the night intervening 27th/28th April, 1985. The village Pandeypur was 25 kilometres away from Aurangabad Police Station, A.S.I. Nandjee Singh received a telephonic message from Rabindra Petrol Pump that murder has been committed in village Pandeypur. He made entry as Station Diary No. 1. He reached the village at 2.30 a.m. and visited the place of occurrence at 3 a.m. It was an isolated place. 8. The defence of the appellants was that Ganeshi Yadav was murdered in the night by some unknown persons outside the village. The dead body was brought in the village in the morning. The witness was examined on behalf of the accused persons who supported the defence case that Ganeshi Yadav was done to death elsewhere and his dead body was seen being brought by Hafizul Rahman, a mechanic. He had a shop near Rabindra Petrol Pump in Pandeypur. This witness says that he along with Dasrath and Braj Mohan went to Police Station but sub-inspector of police was sleeping and they returned. At 6 a.m. he had seen the sub-inspector go to village Pandeypur but this witness never turned up before the police to say what he has said in the evidence during the trial. There is no doubt that Ganeshi Yadav was murdered. 9. Dr. Jagdish Prasad Mahaseth, the then Civil Assistant Surgeon, Aurangabad Sadar Hospital, performed autopsy on the deceased and found several incised wounds on the deceased. There was one incised wound on neck 6" x 3" x 2" cutting oesophagus. Injury was caused by sharp cutting weapon such as garasa. 10. There are several witnesses who claimed to have identified the appellants and accused bandhu assaulting the deceased with garasa resulting in his death. 11. Janeshwar Yadav was also sleeping inside the house. There was one incised wound on neck 6" x 3" x 2" cutting oesophagus. Injury was caused by sharp cutting weapon such as garasa. 10. There are several witnesses who claimed to have identified the appellants and accused bandhu assaulting the deceased with garasa resulting in his death. 11. Janeshwar Yadav was also sleeping inside the house. He says that at 2.30 a.m., he heard hulla of Maheshi Yadav. He went outside and found Ganeshi Yadav dead. Kameshwar Yadav was sleeping near the deceased. He saw Bandhu assaulting Ganeshi Yadav with garasa. He also claimed to have identified the culprits in the torch light flashed by Bishundeo. The I.O. had named Bandhu. He had not named the remaining three accused persons. 12. The judgment of the learned Addl. Sessions Judge is based on the evidence of Kameshwar Yadav and Maheshi Yadav. It is significant to note that the occurrence took place in the village but no independent witness has come forward to substantiate the claim of these two witnesses that they had seen the culprits. Witness Kameshwar has not named three of the accused. The Police did not raid the house of the appellants. The name was disclosed by the informant. It is difficult to accept the assertion of these two eye-witnesses who have been able to identify the appellants in torch-light flashed by the accused person. 13. Learned Counsel for the appellants submits that the case of the prosecution is highly improbable and not reliable. One of the accused Ramdeni was carrying lathi but he did not use. Similarly, appellant Fekan armed with gun but he did not use. So many persons were sleeping outside the house but no body raised alarm. 14. I have carefully examined the evidence and come to the conclusion that the conviction of the appellants cannot be sustained on the ground of serious infirmities noticed above. The Police Station was only five kilometres but no body informed the Police. Choukidar was not informed. Mukhiya who was informed about the theft was also not examined. 15. For the reasons stated above, I am unable to agree with the learned Addl. Sessions Judge by taking into consideration serious infirmities noticed above. 16. In the result, both the appeals are allowed and the conviction of the appellants is set aside by giving benefit of doubt. They shall be discharged from the liability of bail bonds. 15. For the reasons stated above, I am unable to agree with the learned Addl. Sessions Judge by taking into consideration serious infirmities noticed above. 16. In the result, both the appeals are allowed and the conviction of the appellants is set aside by giving benefit of doubt. They shall be discharged from the liability of bail bonds. S.K.Chattopadhyaya, J. 17 I agree.