JUDGMENT : B.P. Singh & A.K. Sinha. JJ.-Appellants Arjun Sah and Sundar Thakur are the appellants in Cr. Appeal No. 219 of 1994. They have been sentenced to life imprisonment under Section 302 of the Indian Penal Code and to seven years rigorous imprisonment under Sections 3 and 4 of the Explosive Substances Act. The sole appellant in Cr. Appeal No. 119 of 1994 is Bouku Ram who has been sentenced to life imprisonment under Section 302 read with Section 109 of the Indian Penal Code. The occurrence in question is said to have taken place in the morning at about 6 a.m. on 20th September, 1991 near the Hathia Nala in which Kailash Mandal is said to have received injuries as a result of Arjun Sah and Sundar Thakur throwing a bomb at him at the instigation of appellant Bouku Ram. Though the injured Kailash Mandal was removed to the hospital at 8.40 a.m. he succumbed to his injuries. 2. Apart from the appellants in these two appeals, two others, namely, Phulo Ram and Bhushan Ram were also put up for trial before the 1st Addl. Sessions Judge, Bhagalpur in Sessions Trial No. 354/14 of 1992. While convicting the appellants as aforesaid, the trial Court acquitted Phulo Ram and Bhushan Ram of the charges levelled against them since he found that the prosecution has failed to prove the charges against them. It may here be noticed that the aforesaid Phulo Ram and Bhushan Ram were also charged of the offence under Section 302/34 IPC. 3. Several witnesses were examined by the prosecution in support of its case and a few defence witnesses were also examined. Two court witnesses were also examined at the trial. Most of the witnesses examined at the trial denied that they had witnessed the occurrence and really speaking the prosecution case rests on the testimony' of three witnesses, namely, the informant Manjhi Mandal P.W9, his wife Dhulia Devi, P.W8 and his daughter-in-law Sushila Devi, P,W.10 who is the wife of deceased Kailash Mandal. 4. The first information relating to the occurrence was given by the informant Manjhi Mandal which was recorded by A.S.I. Baldeo Mahto attached to the Tatarpur Police Station. 4. The first information relating to the occurrence was given by the informant Manjhi Mandal which was recorded by A.S.I. Baldeo Mahto attached to the Tatarpur Police Station. This was recorded on 20th September, 1991 at 8.40 a.m. hours at the emergency ward of the Jawahar Lal Nehru Medical College and Hospital at Bhagalpur where injured Kailash Mahto and another injured Dablu Paswan P.W.8, had been removed for treatment. In his report. Manjhi Mandal, P.W. 9 stated that on that day in the morning at about 6 a.m. his son Kailash Mandal (deceased) had gone to ease himself towards the west of Hathia Nala. While he was returning, the informant heard the sound of explosion of a bomb. He thereupon ran in the direction from which the sound of bomb explosions was heard along with other villagers. When he' reached there, he found that his son Kailash Mandal was lying injured near the electric pole towards the west of Hathia Nala bridge. On the other side, he noticed the presence of appellants Bouku Ram, Sundar Thakur and Arjun Sah. He saw Sundar Thakur and Arjun Sah throwing bomb and he also saw the Bouki Ram was instigating them to do so. He also noticed that appellant Arjun Sah threw a bomb which injured Dablu Paswan, P.W.7 who had accompanied him to the place of occurrence. According to the informant, he approached his son concealing himself from the aggressors. He asked his son as to who had assaulted him and in reply his son Kailash Mandal, who was groaning, told him that Bouku Ram had ORDER :ed Sundar Thakur and Arjun Sah to throw bombs at him and in obedience to his ORDER :, the latter two had thrown bombs at him as a result of which he was injured. The informant further stated that while the appellants were still throwing bombs, he with the help of his daughter-in-law Sushila Devi, P.W.10, Naresh Paswan, P.W.5, Ram Swaroop Mandal, Alam Mandal and Naresh Mandal (not examined) removed Kailash Mandal (deceased) and Dablu Paswan (P.W.7) to the Kotwali Police Station. From there they were removed to Bhagalpur hospital for treatment but his son succumbed to his injuries. The motive suggested in the first information report was that Sukhdeo Mandal, P.W.1 and Gholti Mandal, P.W.2 had jointly purchased a piece of land, but that was being challenged by appellant Bouki Ram. From there they were removed to Bhagalpur hospital for treatment but his son succumbed to his injuries. The motive suggested in the first information report was that Sukhdeo Mandal, P.W.1 and Gholti Mandal, P.W.2 had jointly purchased a piece of land, but that was being challenged by appellant Bouki Ram. Since the informant's family supported Sukhdeo Mandal and Gholti Mandal in that dispute, Bouki Ram had got his son killed. It would be noticed from the first information report that according to the informant he heard a sound of bomb explosion whereafter he rushed to the place of occurrence. He saw that even thereafter bombs were being exploded and it appears from a reading of the first information report that the bombing process continued for some time. Though the informant has mentioned about removing his son from the place of occurrence with the help of other villagers including his daughter-in-law Sushila Devi, P. W.10, he has not mentioned about the presence of his wife Dulia Devi, P.W.8. He has also asserted in clear terms that his son Kailash Mandal deceased, had declared to him at the place of occurrence that on the ORDER :of Bouki Ram, the other two appellants had thrown bombs at him. Even a motive was suggested in the report. Dr. Ansari who performed the post mot1em on the body of Kailash Mandal at 3 p.m. on 20.9.1991 found the following ante mortem injuries on the person of the deceased. I. Blast injury with lacerated margin and deposits of yellow powder on the skin and on the soft tissues with unpleasant smell and extending from anterior superior illiac spin on the left side upto middle of left thigh. Size about 12" x 8". The stum miscles blood vessels nerves all found lacerated, some portion of the soft tissues were missing and the left finger was found exposed. Black deposits were also found at some places on the margines. II. Stitched wound on the left side scrotum margin lacerated 2 1/2" x 1/2". III. Multiple bruises of different shapes and sizes found on left side abdominal wall and lower part of chest in 6" x 4". IV. Lacerated wound on left little finger 1/2" x 1/4". V. Multiple bruises of different shapes and sizes on right thigh anteriorly in 5" x 4". VI. III. Multiple bruises of different shapes and sizes found on left side abdominal wall and lower part of chest in 6" x 4". IV. Lacerated wound on left little finger 1/2" x 1/4". V. Multiple bruises of different shapes and sizes on right thigh anteriorly in 5" x 4". VI. Two small incised wounds on right thigh 1" x 1/4" muscle deep with appeared surgical wound." In his opinion, injury No.1 was grievous and fatal caused by explosive substance. lime that had elapsed since death was about 6 to 12 hours. The medical evidence, no doubt, establishes the fact that Kailash Mandal, deceased, met a homicidal death and that his death was caused by explosive substance such as a bomb. 5. Sukhdeo Mandal was examined as P.W.1. This witness had not witnessed the occurrence, but he stated that he was the witness to the recoveries made at the place of occurrence. This witness was declared hostile. It is worth while noticing that this witness admitted the fact that there was a dispute between him on the one hand and tile appellant Bouki and one Gholti Ram on the other. He could not say whether a proceeding under Section 107 Cr. P.C. had been initiated in connection with the land, but he admitted that there was a title suit pending. 6. Gholti Ram was examined as P.W.2. He also claims to be a witness to the recoveries made at the place of occurrence, but he denied having witnessed the occurrence. He had only heard that Kailash Mandal had been murdered by the appellants. He admitted that he had a land dispute with Bouki Ram. 7. P.W.3 Ajoy Kumar Mandal stated that he had a shop at Urdu Bajar. He had also heard the sound of explosion of bomb but he did not go to the place of occurrence. He had later heard that Kailash Mandal had been killed by the appellants. He had not gone to the hospital along with the injured and his statement was not recorded by the police. This witness was declared hostile by the prosecution and was cross-examined by reference to his statement recorded under Section 161 Cr. P.C. It appears from the trend of the cross-examination that before the police this witness had also implicated Phulo Ram and Bhushan Ram who have since been acquitted. 8. P.W.4 is Bhim Mandal, brother of deceased Kailash Mandal. This witness was declared hostile by the prosecution and was cross-examined by reference to his statement recorded under Section 161 Cr. P.C. It appears from the trend of the cross-examination that before the police this witness had also implicated Phulo Ram and Bhushan Ram who have since been acquitted. 8. P.W.4 is Bhim Mandal, brother of deceased Kailash Mandal. This witness in his examination-in-chief stated that Kailash Mandal had been killed at 6 a.m. on 20th September, 1991 and that on the ORDER :of Bouki Ram, Sundar Thakur and Arjun Sah had thrown a bomb at him near Hathia Nala. However, from paragraph 4 of his deposition, it appears that this witness is not an eye witness because he admitted that on 20th September, 1991 he had talked about the occurrence to his mother and she told him that on the ORDER :of Bouki Ram, Sunder Thakur and Arjun Sah had thrown bomb at Kailash Mandal and killed him He was told about this incident at 7 a.m. when he was returning from Urdu Bazar after supplying milk. On hearing the sound, he had come home and from there, he came to the hospital and found that his brother was dead. He admitted that he had no personal knowledge about the occurrence. 9. Naresh Paswan, P.W.5 is one of the witnesses mentioned in the first information report and according to the informant, he had helped in removing his injured son to the police station. However, Naresh Paswan stated that he did not know anything about the occurrence as he had gone to the railway station. He also denied having made any statement before the police. This witness was also declared hostile and cross-examined by the prosecution. 10. Jhinger Prasad Yadav, P.W.6 stated that about two years ago, he was milching his cow when he heard the sound of explosion of bomb which came from the' side of Rikabganj. On hearing the sound of bomb explosion the mother of Kailash Mandal who was at his house, went away and he also left for selling milk. This witness was also declared hostile and was cross-examined by the' prosecution. He denied having ever gone to the place of occurrence. 11. Dablu Paswan was examined as P.W.7 It is the prosecution's case that he was also injured in the course of the same occurrence. This witness was also declared hostile and was cross-examined by the' prosecution. He denied having ever gone to the place of occurrence. 11. Dablu Paswan was examined as P.W.7 It is the prosecution's case that he was also injured in the course of the same occurrence. According to this witness, he heard two bomb explosions and on hearing the sound he along with other villagers went to the place of occurrence. He also received injury on his right leg on account of explosion of the third bomb. He, however, stated that on account of presence of smoke, he could not see the assailants. In cross-examination, he stated that he had never given statement to the police and at the place of occurrence he had not seen the assailants. So far as this witness, is concerned, in the first information report, it is stated that the had accompanied the informant to the place of occurrence and there he was also injured. It is the prosecution case that he was also removed to the police station and then to the hospital. However, in the first information report the clear allegation is that a bomb was exploded at Dablu Paswan by Arjun Sah., Surprisingly, this witness denied having identified the assailants. Though he claims to have been injured, no injury repor1 has been brought on record and in fact, the witness denied having ever made statement before the police. In any event, he did not identify the assailants. It also appears that he reached the place of occurrence after two bombs had been exploded and in any event, he did not identify any of the assailants. The testimony of this witness does not improve the case of the prosecution so far as the complicity of the appellants is concerned. 12. Dhulia Devi, the wife of the informant and mother of the deceased Kailash Mandal was examined as P. W.8. As noticed earlier, her presence at the place of occurrence has not been mentioned in the first information report though as would appear from the evidence of P.W.8. at the stage of trial he tried to introduce this witness as an eye witness. She stated that at about 6 a.m. on the date of occurrence, she had gone to the shop of Jhinger Yadav, P.w. 6 to purchase foddar for the cattle. at the stage of trial he tried to introduce this witness as an eye witness. She stated that at about 6 a.m. on the date of occurrence, she had gone to the shop of Jhinger Yadav, P.w. 6 to purchase foddar for the cattle. She was told by P.W.6 to come after half an hour and therefore she came back to her house at Rikabganj. While proceeding towards her house at Rikabganj, when she reached near the electric pole, she saw that Arjun Sah and Sundar Thakur, appellants, threw a bomb at her son on the ORDER :of Bouku Ram, appellant. Two bombs were thrown, first by Sundar Thakur and the second by Arjun Sah. Her son was returning after easing himself. The villagers put her injured son on a Thela and when they were removing him, Bhushan Ram threw a bomb which injured Dablu Paswan, P.W.7. According to this witness on hearing the sound of explosion, many villagers came and the first to arrive were Sukhdeo Mandal and Gholti. However, as noticed earlier, both these witnesses who were examined as P. Ws. 1 and 2 stated that they had no knowledge about the occurrence and that they were merely witnesses to the recoveries made. Neither of them claimed to have rushed to the place of occurrence on hearing the sound 'of bomb explosion. She does not claim to have gone to the hospital. This witness has stated that she had gone to get foddar and returned to her house after half an hour. She had gone to a distance of half a mile to get foddar. While returning, she did not meet anyone on the way. She saw the occurrence and thereafter fainted. According to this witness. the villagers came after half an hour. On the date of occurrence, she had not talked with her husband Manjhi Mandal, though she had met him on the road at about 6.30 a.m. 13. The informant Manjhi Mandal was examined as P.W.9. In the course of his deposition before the Court, this witness has given quite a different version of the occurrence. He stated that on hearing the sound of bomb explosion, he came near the Hathia Nala bridge and saw that Bouki Ram, appellant. ORDER :ed his accomplices to throw bomb, whereupon Sundar Thakur and Arjun Sah, appellants, threw bombs at his son Kailash Mandal. Kailash was injured and fell down. He stated that on hearing the sound of bomb explosion, he came near the Hathia Nala bridge and saw that Bouki Ram, appellant. ORDER :ed his accomplices to throw bomb, whereupon Sundar Thakur and Arjun Sah, appellants, threw bombs at his son Kailash Mandal. Kailash was injured and fell down. Thereafter he was removed on a cart and taken to the police station. According to him, Sukhdeo Mandal, P.W.1 and Gholti Ram, P.W.2 also came. As noticed earlier, these two witnesses have denied having gone to the place of occurrence after Kailash was injured. The informant mentioned about the presence of Dablu and stated that he was also injured, but he could not see who injured him. This is contrary to the assertion made in the first information report where the informant categorically stated that Arjun Sah, appellant, had thrown a bomb at Dablu Paswan. This witness also made a significant statement. He stated that his son was removed to the hospital and it was in the hospital that his son told him that on the ORDER :of Bouki Ram, appellants Sundar Thakur and Arjun Sah had thrown bombs at him. After saying so, he died. According to the informant, this dying declaration was made at the hospital to him in the presence of the wife of Kailash Mandal, namely P.W.10. This witness does not appear to be consistent, because in the first information report, he stated that the dying declaration was made at the place of occurrence and at that time he did not mention the presence of any other witness. In his deposition, he however, changed his version and stated that the dying declaration was made at the hospital and in the presence of the wife of the deceased, P.W.10. According to this witness, his statement was recorded for the first time in the hospital at about 3 p.m. While in the first information report, the informant had stated that Sukhdeo and Gholti P.Ws. 1 and 2 had a dispute with appellant Bouki Ram and since the informant and his family members supported Sukhdeo and Gholti, Bouki had got his son murdered, in his deposition he took a complete somersault and stated that to his knowledge there was no dispute between Sukhdeo and Gholti on the one side and Bouki on the other. 1 and 2 had a dispute with appellant Bouki Ram and since the informant and his family members supported Sukhdeo and Gholti, Bouki had got his son murdered, in his deposition he took a complete somersault and stated that to his knowledge there was no dispute between Sukhdeo and Gholti on the one side and Bouki on the other. He went to the extent of saying that there was no party politics in the village and that he had no dispute with the accused. This witness further made an attempt to improve his case by stating that while going to the place of occurrence, he met his wife. He also met Sukhdeo and Gholti, P.Ws. 1 and 2, but he had no talk with them. As earlier noticed. the informant did not even mention about the presence of his wife at the place of occurrence or about his having met her at the place of occurrence. For the first time in the course of his deposition, he stated that he had met his wife on the way, but again made an apparently inconsistent statement that at the place of occurrence, he did not see any villager and only saw his wife lying unconscious. He categorically stated, contrary to the assertion in the first information report, that he had no talk with his son Kailash at the place of occurrence. This witness stated' that he had taken his son to the police station and thereafter to the hospital along with his daughter-in-law, P.W.10. According to this witness, Hathia Nala was at a distance of about 40 Laggas (100 yards) from Company bagh where the informant resides. The house of Bouki Ram is adjacent to the east of his house. He admitted that he had settled himself on the land of Sukhdeo and though he had paid the money to Sukhdeo, he had not given any written document to him. He further stated that apart from him, many others have been settled by Sukhdeo on his land. He further stated that there was no dispute between Sukhdeo and Bouki. 14. It will appear from a critical scrutiny of the testimony of this witness that as the informant, he had given quite a different version of the occurrence. He further stated that apart from him, many others have been settled by Sukhdeo on his land. He further stated that there was no dispute between Sukhdeo and Bouki. 14. It will appear from a critical scrutiny of the testimony of this witness that as the informant, he had given quite a different version of the occurrence. In the first information report, he claimed that he reached the place of occurrence after his son was injured, but in his examination-in-chief; he claimed to have seen the occurrence from the very beginning and he also saw that after receiving injuries his son fell down. Again in his cross- examination, he contradicts himself by stating that when he reached the place of occurrence, he found his son in an injured condition. Moreover his case in the first information report was that his son made a dying declaration to him at the place of occurrence itself, but in the course of his deposition, he states that his son named the assailants to him at the hospital in the presence of P. W.10. Sukhdeo and Gholti P.Ws. 1 and 2 who are said to have reached the place of occurrence with the informant have denied having gone to the place of occurrence. In fact, they denied any personal knowledge about the occurrence. The motive suggested in the first information report also stands destroyed by the testimony of this very witness who stated that there was no dispute between Bouki on the one hand and Sukhdeo and Gholti on the other. He also stated that he had no dispute with the accused and there was no party politics in the village. In the first information report, he did not mention about the presence of his wife p.w.8, but in the course of his deposition, he introduced her first by saying that while going to the place of occurrence, he met her, and then by stating that when he reached the place of occurrence, he found her there lying unconscious. The testimony of this witness appears to be highly unreliable as he has changed his version completely in the course of his deposition. The inconsistency and contradictions in his testimony compel us to reject his testimony outright. Even the trial Court concluded that this witness was not an eye witness in the strict sense of the term. The testimony of this witness appears to be highly unreliable as he has changed his version completely in the course of his deposition. The inconsistency and contradictions in his testimony compel us to reject his testimony outright. Even the trial Court concluded that this witness was not an eye witness in the strict sense of the term. We are of the view that this witness is not an eye witness at all, and appears to have made out a concocted case after coming to know about the injury caused to his son. 15. We are then left with the testimony of Sushila Devi, P.W.10, the wife of the deceased. She claimed that on the date of occurrence at about 6 a.m. she was preparing cow dung cakes at the wall of Lakshmi Babu. She then saw that Bouku, appellant ORDER :ed that Kailash was passing by and he should be assaulted, and on this Sukhdeo Thakur and Arjun Sah threw bombs at her husband, Kailash Mandal. She ran and picked up her husband and• after placing him on a cart took her to Mayaganj hospital. By the time her husband could be brought to the bed, he expired. This completely demolished the version put forward by P.W.9 that at the hospital the injured disclosed to him the names of the assailants. At the time of occurrence, her father-in-law and mother-in-law were also present. When her husband was being removed on a cart Bhushan Ram and Arjun Sah threw a bomb at Dablu Paswan who was injured. She sought to introduce two other persons as the assailants, but the trial Court has not accepted her testimony as against them. She appears to have reached the place of occurrence after P.W.8 Dhulia Devi, and• therefore she could not have seen the actual occurrence. She admitted in her cross-examination that Hathia Nala was at a distance of about 50 yards from the house of Lakshmi Babu. As soon as she heard the noise, she rushed to the place of occurrence. At the place of occurrence, she found her monther-in-law present and her father-in-law came soon thereafter. P.W.9, however, stated that he found only P.W.8 at the place of occurrence when he reached there. Even P.W.8 does not mention the name of this witness, who is her daughter-in-law, amongst those who arrived soon after the occurrence, though she has named P.Ws. At the place of occurrence, she found her monther-in-law present and her father-in-law came soon thereafter. P.W.9, however, stated that he found only P.W.8 at the place of occurrence when he reached there. Even P.W.8 does not mention the name of this witness, who is her daughter-in-law, amongst those who arrived soon after the occurrence, though she has named P.Ws. 1 and 2 as having so arrived. She (P.W.10) did not wait at the place of occurrence and immediately put her husband on the cart and left for the hospital. She claimed that she saw the accused coming to the place of occurrence and she had also witnessed the occurrence. 16. So far as P.W.10 is concerned, her presence at the place of occurrence appears to us to be doubtful. It is too much of a co-incidence that at the same time, the father of the deceased, his mother and his wife who were at three different places arrived at the spot at about the same time. It is indeed surprising that all of them claim to have witnessed the occurrence. All of them reached the place of occurrence on hearing the noise of bomb explosion, and if one is to believe the version given by these witnesses, several bombs were exploded. However, the Investigating Officer, P.W.1 stated that he had found some material which were the remnants of an exploded bomb, but he did not find any such remnants of the second bomb said to have been exploded there. In substance the objective finding of the Investigating Officer is that only one bomb had been exploded. If this fact is taken into consideration, it would be apparent that none of the witnesses could be eye witnesses to the occurrence, because all of them reached the spot •on hearing a bomb explosion, which means that all of them reached the spot after Kailash Mandal had been injured i.e. after perpetration of the crime. This also leads to the conclusion that these witnesses subsequently arrived at the place of occurrence and thereafter a false case had been concocted against the appellants. There is considerable variance in their testimony. In view of the inconsistencies which we have pointed out, we do not find it safe to rely upon the testimony of P.Ws. 8, 9 and 10 as we entertain considerable doubt about the truthfulness of their testimony. There is considerable variance in their testimony. In view of the inconsistencies which we have pointed out, we do not find it safe to rely upon the testimony of P.Ws. 8, 9 and 10 as we entertain considerable doubt about the truthfulness of their testimony. We, therefore, do not find it safe to base a conviction on their testimony. We are of the view that the appellants are entitled to the benefit of doubt. 17. In these circumstances, the appeals are allowed and the appellants. are acquitted of all the charges levelled against them. In Criminal Appeal No. 119 of 1994, Appellant Bouki Ram is on bail, and he is discharged from the liability of his bail bond. The appellants in Cr. Appeal No. 219 of 1994 are in custody. They are directed to be released forthwith unless required in connection with any other case.