Judgment B.P.Singh and D.P.S.Chaudhary JJ. 1. The 2nd Additional District and Sessions Judge, Nawadah by his judgment and order dated 20th of February, 1986 found all the appellants in these two appeals guilty of the offences under Secs. 302/149 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for life. He also found them guilty of the offence under Sec. 148 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for one year each. The judgment and order of the 2nd Additional District and Sessions Judge has been challenged in these two appeals. In Criminal Appeal No. 134 of 1986 there are three appellants, namely, Lakeshwar Yadav, Yamuna Yadav and Baldeo Yadav. In Criminal Appeal No. 189 of 1986, there are only two appellants, namely, Dasrath Yadav and Amirak Yadav. The appellants, Lakeshwar, yamuna and Amirak are the sons of appellant, Baldeo Yadav. 2. The occurrence is said to have taken place on the night intervening 10th and 11th of April, 1985 in the khalihan of the deceased which was situated at a distance of about 500 yards from Village Banaili Kala. The prosecution case is that the five appellants committed the murder of Prayag and Prabhu Yadav who were sleeping in their khalihan to guard their wheat crop. According to the prosecution, appellants were variously armed with Garasa, Bhala, Saif, Farsa, etc. The case of the prosecution is that P.Ws. 5 and 11, namely, Bauli Yadav and Charaiyan Yadav were also sleeping in the khalihan along with their father and uncle and the alarm raised by them attracted the attention of villagers including the first informant, Lalo Yadav, P.W. 13, Yamuna Yadav, P.W. 1 and many other villagers, some of whom were examined at the trial as prosecution witnesses. The case of the prosecution rests on the testimony of the informant, P.W. 13 who also claimed that he had seen the accused running away. The prosecution has further sought to corroborate the testimony of the eye-witnesses by relying upon the evidences of several witnesses who are said to have rushed to the place of occurrence on hearing alarm and to whom all the facts were narrated by the eye-witnesses as well as P.W. 13 and P.W. 1, who also disclosed the names of these appellants as the perpetrators of the crime. The exact time when the occurrence took place is not very clear because some of the witnesses have mentioned that the occurrence took place at about mid-night while others have stated that the occurrence took place at 2.00 a.m. that, however, is not very material, because it is the prosecution case that the occurrence took place in the night intervening 10th and 11th of April, 1985. 3. The first information was lodged by Lalo Yadav, P.W. 13 at the Police Station, Kawakole which was about 4 kilometres away from the village of occurrence. According to the prosecution, such a report was lodged at 4.00 a.m. when Lalo Yadav, P.W. 13 along with several villagers including P.W. 2, P.W. 4, P.W. 6, P.W. 8 and P.W. 12 went to the police station and lodged the report. In the said report, it was stated that the informant was sleeping in his khalihan for guarding his wheat crop. Adjacent south of his khalihan was the khalihan of his cousins, Prayag Yadav and Prabhu Yadav (both deceased). On the night of occurrence they, were also guarding their wheat crop. At about mid-night, his nephews, Boli Yadav, P.W. 5 and Chiraiyan Yadav, P.W. 11 raised an alarm that their father had been killed and the offenders were running away. On hearing alarm, the informant got up and saw the appellants running away. Appellants, Dasrath Yadav and Amirak Yadav were armed with Garasa while appellants, Lakehswar Yadav was armed with Bhala and Yamuna Yadav with a Saif and Baldeo Yadav with a Farsa. The were running away towards west from the khalihan of the Deceased and were also uttering abusive terms. He saw them in the light of the lantern burning in his khalihan and with the help of this torch. The informant also raised an alarm and went to the khalihan of the deceased, but found that both Prayagand Prabhu Yadav had received bleeding injuries and were wreathing in pain. They were not in a position to speak. Both of them succumbed to their injuries soon thereafter. Some of the villages had come on hearing the alarm and he named Jagdish Yadav, P.W. 9, Horil Mahto, P.W. 10, Yamuna Yadav, P.W. 1 amongst the villagers who came to the place of occurrence and who had seen the occurrence. The informant, as well as his nephews, Boli Yadav and Chiraiyan Yadav, P.Ws. Some of the villages had come on hearing the alarm and he named Jagdish Yadav, P.W. 9, Horil Mahto, P.W. 10, Yamuna Yadav, P.W. 1 amongst the villagers who came to the place of occurrence and who had seen the occurrence. The informant, as well as his nephews, Boli Yadav and Chiraiyan Yadav, P.Ws. 5 and 11 respectively, told these witnesses what they had witnessed. It is further stated in the said information that both the eye-witnesses were at the village near the dead bodies. It was also suggested in the report that the motive for the occurrence was that about 8 to 10 days ago there was dispute between the deceased on the one hand and the appellants on the other with regard to construction of a Bathan. There was an altercation followed by exchange of abuses and appellant, Dasrath Yadav and the other accused had threatened to assault deceased, Prabhu Yadav and Prayag Yadav. This report has been witnessed by Ram Prasad Yadav, P.W. 7 and Baleshwar Singh, P.W. 2. 4. After recording the report, Ramchandra Singh, Officer Incharge of the Police Station, Kawakole came to the place of occurrence at about 6.00 a.m. He prepared the inquest report relating to the dead bodies of Prayag and Prabhu Yadav. He inspected the place of occurrence and found that there was copious dried blood on the ground near the heads for the deceased. He found that the khalihan of the informant, Lalo Yadav, P.W. 13 was at a distance of about 25 yards from the place of occurrence. He claims to have collected blood-stained earth and prepared a seizure memo (Ext. 3/1) witnessed by Jagdish Yadav, P.W. 9 and Baleshwar Singh, P.W. 2. He also claims to have seized from the place of occurrence one old three cell Every ready Torch and one lantern under seizure list (Ext. 3). The said items were released in favour of the informant, Lalo Yadav, P.W. 13 on jimmenama. After he made a search for the accused, he arrested the appellant, Baldeo Yadav from his house on the same day. The other accused surrendered in Court. After completing the investigation, he submitted the charge-sheet in this case. 5. As earlier noticed the prosecution cases rests on the ocular account given by the eye-witnesses, namely, P.W. 5, Boli Yadav and P.W. 11, Chiraiyan Yadav. The other accused surrendered in Court. After completing the investigation, he submitted the charge-sheet in this case. 5. As earlier noticed the prosecution cases rests on the ocular account given by the eye-witnesses, namely, P.W. 5, Boli Yadav and P.W. 11, Chiraiyan Yadav. The prosecution case is that they had witnessed the occurrence and the alarm raised by them attracted the attention of P.W. 13, the informant and P.W. 1, Yamuna Yadav and many other villagers. To these villagers, the eye-witnesses had disclosed the manner of assault and participation of the appellants. All the supporting witnesses claimed to have derived knowledge from the eye-witnesses, namely, P.Ws. 5 and 11. On the other hand the case of the defence is that the occurrence took place in the dead of night, and was not. witnessed by any one. Early in the morning when the dead bodies were found in the khalihan, a false case was concocted implicating the appellants. According to the defence, even P.Ws. 5 and 11 were not eye-witnesses, nor had reached the place of occurrence as alleged by the prosecution. The direct suggestion put by the defence to the witnesses is that a false case was concocted with the help of Ram Prasad Yadav, P.W. 7, who happens to be the Sarpanch of Kawakole and was an expert in concocting false cases. 6. We shall first deal with the evidence of the informant who has been examined as P.W. 13. The informant stated in course of deposition that he was sleeping in his own khalihan and on the night of occurrence, he woke up on hearing the alarm raised by Boli Yadav, P.W. 5 and Chiraiyan Yadav, P.W. 11. While he was proceeding towards their khalihan on the way he saw the appellants variously armed running towards west. He had seen them in the light provided by his torch. On reaching the khalihan of the deceased, he found that Prayag and Prabhu Yadav had been badly injured and the injuries were bleeding. They (both) died immediately. Several witnesses assembled and Boli Yadav, P.W. 5 and Chiraiyan Yadav, P.W. 11 told those persons that the killers of the deceased were appellants herein. He also supported his statement in the first information report that the occurrence took place on account of the dispute relating to Bathan. This witness further stated that there was a lantern burning in the khalihan. He also supported his statement in the first information report that the occurrence took place on account of the dispute relating to Bathan. This witness further stated that there was a lantern burning in the khalihan. He claimed that he reached the police station at about 3 or 4 a.m. and got his statement recorded by the Officer Incharge. He had shown the place of occurrence to the Investigating Officer who had seized the lantern and the torch but released the same in his favour on Jimmenama. He identified those two items (marked Exts. 1 and 2) as the lantern and torch seized by the Investigating Officer. 7. In cross-examination, this witness admitted that there was a criminal case as well as a counter case between him and appellant, Baldeo Yadav in which both parties were acquitted. This happened about 20 years ago. Thereafter, there was no dispute between them. He could not say whether any report was made against the appellants relating to the quarrel between them and the deceased. He, however, stated that on the night of occurrence itself, he had come to know about the quarrel between them. He then added that 10 days before the occurrence, the deceased had told him about the quarrel but he did not offer any advise to them. Contrary to his statement in the first information report this witness stated in course of his deposition that there was no lantern burning in his khalihan. He further stated that he saw the appellants running away after he had entered the khalihan of the deceased. He feigned ignorance. as to whether he has stated before the police that there was a lantern burning in his khalihan and that he had identified the assailants and seen them running away in the light of that lantern, where after he went to the khalihan of the deceased. He further stated that the lantern which was produced in the Court was not the lantern of his khalihan. The police had released the lantern in his favour, since he claimed that the lantern belonged to him. He has further stated that he has no concern with the lantern burning in the khalihan of the deceased. The torch produced in the Court also belonged to him. According to this witness, he had come to his khalihan at 8.00 p.m. Prabhu (deceased) had come to his khalihan after taking food. He has further stated that he has no concern with the lantern burning in the khalihan of the deceased. The torch produced in the Court also belonged to him. According to this witness, he had come to his khalihan at 8.00 p.m. Prabhu (deceased) had come to his khalihan after taking food. The food for Prayag (deceased) was brought by his son at khalihan, but he could not say at what time the food was brought because he had not seen the bringing of the food. The police-man on a patrol duty did not come to the place of occurrence on hearing the hulla. This witness admitted that Ram Prasad was his cousin and was the Sarpanch of Gram Panchayat, Yogachak which lies on the way of Kawakole Police Station. Ram Prasad Yadav had not come to the place of occurrence on that date. He denied any knowledge about the fact that said Ram Prasad was an expert parvikar in litigation. The said Ram Prasad came to the village on the day following the occurrence along with the Investigating Officer, but he did not meet him and could not say as to whether the eyewitnesses had met him. He further admitted that he was not re-examined either at the khalihan or in the village by the Investigating Officer. While recording his statement the Police Officer had told him that the time was 3.00 a.m. and that is how he knew about the time. He stated that the appellant, Dasrath Yadav was the cousin brother-in-law of appellant, Baldeo Yadav while the remaining accused were sons of Baldeo. He also admitted that his father and the father of the deceased were cousins. In paragraph 39 of his deposition, this witness Stated that on hearing the alarm, he could make out that it was Chiraiyan Yadav, P. W. 11 who was raising alarm, P.W. 11 naming the appellants was shouting that they were running away after killing his father. He ran towards west and saw the appellants running away not from his own khalihan but from the khalihan of the deceased. This witness also claims to have stated before the police that there was a lantern burning in the khalihan of Prayag. He denied the suggestion that he was behind this occurrence and that a false case had been concocted and then the witnesses had no concern with the case nor were P.Ws. This witness also claims to have stated before the police that there was a lantern burning in the khalihan of Prayag. He denied the suggestion that he was behind this occurrence and that a false case had been concocted and then the witnesses had no concern with the case nor were P.Ws. 5 and 11 eye-witnesses, and that a false case had been concocted on the following day in consultation with Ram Prasad Yadav, P.W. 7. He also denied the suggestion that there was no dispute relating to Bathan between the accused and the deceased and such a story was concocted only to implicate the appellants. 8. The other witness who is named as a person who reached immediately after the occurrence is P.W. 1, Yamuna Yadav. Surprisingly, this witness has not stated anything about the occurrence. He has not even stated that on hearing alarm, he had gone to the khalihan of the deceased nor has he stated anything about the presence of eye-witnesses and other witnesses who are alleged to have come from the village. In his examination-in-chief, this witness simply stated that he was a witness to the inquest report prepared by the Investigating Officer in his presence. It, therefore, appears from the testimony of P.W. 1 that he is neither an eye-witness nor a witness in whose presence the names of the accused were disclosed. 9. Before adverting to the deposition of the eye-witnesses, we may notice the injuries found on the body of the deceased by Doctor, Jwala Prasad, P.W. 14 who held the post-mortem examination on the bodies of the deceased on 12th of April, 1985 at 12.45 p.m. He has deposed that he found on Prayag Yadav a sharp cut wound in one line extending from close to angle to the mouth (half 1/2" from the angle of the mouth) measuring 7 1/2" × 1 1/2" × inner deep up to the back of the neck right side. The said injury started from close to the angle of the mouth-right side, crossed the cheek, cut the mandible whole thickness, cut off the 3rd cervical vertebra whole thickness and finally cut off the spinal chord damaging the last molar tooth, muscles, facial muscles, nerves, vessels, carotid arches, esophagus, pharynx, veins, nerves and extended to its muscles and finally the spinal chord. Such an injury, according to him, could be caused by heavy sharp weapon and the time elapsed since death was between 36 to 72 hours. The injury was ante-mortem and was sufficient in ordinary course to cause death. On the body of deceased, Prabhu Yadav he found a sharp cut injury over right side face and over the back of the head in one line extending from middle portion of front of the nose to the back of the head (occipital region middle)(1/2" × 1 1/2" × inner deep. The injury started from middle of the nose 1" deep then cut of the maxillary bone, ramus of the mandible, crossed the lower portion of the right side of lower eye-lid, cut of the ear lobuls mastoid bone passed backward cutting the occipital bone up to the mid-line. Depth of the injury at nasal portion was 1" over maxillary bone, whole thickness of the bone, over whole thickness of the ramus of the mandible, the whole thickness of the mastoid bone, whole thickness of the ear occipital bone and its marginal vessels and cut off the brain. The said injury from the nose to the back of the skull was in one line damaging the nasal bone and its structure, maxillary bone sad its related bones, nerves etc. The injury was ante-mortem in nature and caused by heavy sharp weapon, such as Garasa. The time elapsed since death was 36 to 72 hours and the injury was sufficient to cause death in ordinary course. 10. It will thus, be evident from the medical evidence on record that both the deceased had suffered one injury each by a sharp cutting weapon, and looking to the nature of the injuries, the weapon must have been a heavy weapon. By merely looking at the injury one could imagine that the weapon was wielded with great thrust almost cutting through the face and the spinal chord. 11. We shall now advert to the deposition of the two eye-witnesses. Their testimony has to be scrutinized in the light of the case of the prosecution that these two witnesses were sleeping in the same khalihan and were eye-witnesses. They had raised alarm which attracted the attention of the informant, P.W. 13 and Yamuna Yadav, P.W. 1 in the first instance, followed by several other villagers who came to the place of occurrence on hearing the alarm. They had raised alarm which attracted the attention of the informant, P.W. 13 and Yamuna Yadav, P.W. 1 in the first instance, followed by several other villagers who came to the place of occurrence on hearing the alarm. The defence case is that they are not eye-witnesses and, therefore, there was no occasion for them to raise an alarm attracting the attention of persons nearby as well as the villagers. 12. P.W. 5, Boli Yadav, son of Prayag Yadav (deceased) deposed that on the date of occurrence at mid-night, he was in his khalihan along with his younger brother, Chiraiyan Yadav, P.W. 11, Prabhu Yadav (deceased) and Prayag Yadav (deceased). He woke up on hearing the sound of foot-steps and saw the appellant, Dasrath Yadav armed with Garasa, Amirak Yadav armed with Garasa, Yamuna Yadav armed with Saif, Lakeshwar Yadav armed with Bhala and Baldeo Yadav armed with Farsa. He saw that his father had been cut. He then stated that he saw that Dasrath Yadav assaulted his father Prayag Yadav with Garnsa. He had assaulted him on his neck. Prabhu Yadav was assaulted by Amirak Yadav on his nose with Garasa Yamuna Yadav was holding the deceased. Lakeshwar Yadav had pressed Prabhu Yadav when Amirak Yadav had assaulted him. Baldeo Yadav was standing there with Garasa, He then stated that he was standing with Farsa. After assault the appellants ran away. His father and uncle both died. He further stated that there was some dispute between the appellants on the one hand and his family members on the other in connection with Gairmajarua land on which their Bathan was located and which has been removed by the appellants. This is all that this witness has stated in his examination-in-chief. It will thus be seen that in his Examination-in-Chief, this witness has not stated that he raised an alarm which may have possibly attracted the attention of neighbours and villagers. He has not even states that any other person came to the place of occurrence, either the informant, P.W. 13 or Yamuna Yadav, P.W. 1, or the several villagers who have been examined in support of the prosecution case. He has, therefore, not even stated that he disclosed the names of the assailants to the persons who came to the place of occurrence soon after the incident. He has, therefore, not even stated that he disclosed the names of the assailants to the persons who came to the place of occurrence soon after the incident. In fact, he has; not mentioned the name of any other witness in course of his Examination-in-Chief nor has he stated about any one coming to the place of occurrence after the incident. In cross-examination, however, he stated that one day before the occurrence some persons had attempted to occupy the Bathan in connection with which there was an assault. He had, however, not seen that Sadhu Yadav had been injured and was taken to the hospital, but he stated that neither his father nor his uncle (both deceased) took pail in the assault. Before that assault which took place one day before the date of occurrence, there was no incident of assault. Four days earlier their Khunta etc. had been removed but no report was lodged regarding that incident. He was also cross-examined with reference to what he had stated in course of investigation to the Investigating Officer. This witness further admitted a few facts in his cross-examination which creates a serious doubt about his presence at the place of occurrence when the occurrence took place. In paragraph 5 of his deposition, he stated that his wife was told about the occurrence while she was at home. Lato Yadav had told his wife about the occurrence in his presence. In paragraph 8 of his deposition, he has admitted that on hearing about the murder of his father, his wife fainted. He (the witness) also fainted on hearing the news. These facts admitted by the witness would go to show that while he was present at his house with his wife, Lato Yadav came and told his wife in his presence that his father had been killed. On hearing the news his wife fainted as also this witness. He (the witness) also fainted on hearing the news. These facts admitted by the witness would go to show that while he was present at his house with his wife, Lato Yadav came and told his wife in his presence that his father had been killed. On hearing the news his wife fainted as also this witness. Obviously, if the news about the murder of his father was disclosed to him for the first time at home, when it was disclosed by Lato Yadav to his wife, this witness could not have been present at the place of occurrence because in that event he would have himself told his wife about the occurrence and there would not have been any occasion for him to faint on getting the shocking news, since the occurrence had taken place in his presence, if he was really an eyewitness. Some of the witnesses have stated that the wife of this witness had also come to the place of occurrence later. Obviously, she may have come to the place of occurrence after knowing about the murder of her father-in-law which was disclosed to her at her house in the presence of her husband, who was also so shocked to hear the news that he fainted. 13. Counsel for the State submitted that it is no doubt true that this witness has not Stated in course of deposition that he raised an alarm to attract the attention of other witnesses. It is also true that he has not even stated that some of the witnesses, such as informant or P.W. 1 came to the place of occurrence immediately after the murder. It is also true that this witness has not mentioned that he had talked to the witnesses who came to the place of occurrence soon after. But, he submitted that these are mere omissions and such omissions should not adversely affect the fate of the prosecution. He submitted that these may be treated as omissions, and on the basis of the evidence of the corolla rating evidence, it should be assumed that this witness had raised an alarm attracting the attention of many persons to whom he disclosed the names of the assailants. We are afraid, we cannot accept this submission because in a case involving the brutal murder of two persons, we cannot assume facts which are not on record. We are afraid, we cannot accept this submission because in a case involving the brutal murder of two persons, we cannot assume facts which are not on record. If this witness had raised an alarm, and on alarm being raised many persons had crone to whom he had disclosed the names of the assailants, it was for the witness to say so, and indeed these facts should have been stated in his Examination-in-Chief. Counsel for the State cannot take shelter behind the fact that the witness may have been confused under the stress of cross-examination, because these omissions are there is his Examination-in-Chief and not in his cross-examination. We, therefore, find from the evidence of P.W. 5 that he had not raised any alarm nor had any one come to the place of occurrence either on hearing alarm raised by him or on their own. This witness also does not claim that he had disclosed the names of the assailants to the persons who came soon thereafter to the place of occurrence. Counsel for the appellants submitted that apart from these infirmities in his testimony, it was expected if this witness was an eye-witness, that he would accompany the villagers to the police station and lodge a report himself. Even that was not done. We do riot attach much importance to the fact that the matter was not reported to the police by him, but the evidence of this witness completely destroys the substratum of the prosecution case. 14. The evidence of P.W. 11 is not better. According to him, he was sleeping in his khalihan on the night of occurrence with his father, Prayag Yadav (deceased). His uncle, Prabhu Yadav was also sleeping in the khalihan. According to this witness, who is a lad aged about 12 years, when appellant Dasrath Yadav caught his hand, his sleep was disturbed. Appellant, Dasrath Yadav threatened him to keep quiet or else he will be killed. Soon thereafter, the appellant, Dasrath Yadav assaulted his father on his neck with a Garasa while appellant, Amirak Yadav assaulted his uncle (Prabhu Yadav) with a Garasa on the nose. Both of them died. He named five appellants as the assailants. He stated that the night was moonlit night and there was also a lantern burning, so that he could identify all the appellants. Both of them died. He named five appellants as the assailants. He stated that the night was moonlit night and there was also a lantern burning, so that he could identify all the appellants. He stated that Lalo Yadav, the informant (P.W. 13) and Yamuna Yadav, P.W. 1 had witnessed the occurrence. He further deposed that 10 days before the occurrence, there was a quarrel relating to Bathan and that was the reason for the commission of the crime. In the last paragraph of his Examination-in-Chief this witness stated that he and Yamuna, etc. had told everything to the witnesses who had come. There are a few important features in the deposition of this witness. He does not name his brother (Boli Yadav) as being present at the time of occurrence, though he mentions that Lalo Yadav P.W. 13 and Yamuna Yadav, P.W. 1 had witnessed the assault. This witness has also not claimed that he raised an alarm. On the contrary, he stated that he was threatened by Dasrath Yadav not to raise an alarm or else he will also be murdered. This witness has named Lalo Yadav (P.W. 13) and Yamuna Yadav (P.W. 1) as eye-witnesses who had witnessed the assault. As we have noticed earlier, yamuna Yadav, P.W. 1 does not claim to be an eye-witness and in fact does not claim any knowledge about the occurrence, and only claims to be a witness to the inquest report. P.W. 13, Lalo Yadav is the informant in this case, but he does not claim to have witnessed the assault. He only claims that he saw the appellants running away. There is then the statement of this witness in his Examination-in-Chief that if the witnesses who had come he and Yamuna Yadav, etc. had told everything. No person has been named by him who came to the place of occurrence, nor is it clear as to where and when they told the story to the witnesses who came. There is nothing earlier in the Examination-in-Chief to suggest that the witnesses had come to the place of occurrence immediately after the occurrence. Even in his cross-examination, the witness has not stated that he raised an alarm, neither has he stated that on hearing his alarm either P.W. 13 or any other witness had come to the place of occurrence. There is nothing earlier in the Examination-in-Chief to suggest that the witnesses had come to the place of occurrence immediately after the occurrence. Even in his cross-examination, the witness has not stated that he raised an alarm, neither has he stated that on hearing his alarm either P.W. 13 or any other witness had come to the place of occurrence. According to him, Lalo Yadav and Yamuna Yadav witnessed the assault, which is not accepted by these witnesses. 15. In his cross-examination, the witness has admitted facts which lead to the conclusion that this witness was also not sleeping in the khalihan on the night of occurrence. He stated that he keeps his cattle in his Bathan and also sleeps in his Bathan. Preceding the night of occurrence, the cattle had returned home in evening after grazing. He had then fed the cattle before mid-night. While he was feeding the cattle, he had not heard any hulla and even after feeding the cattle, he had not heard any hulla. He was in the Bathan but he had not rested on the cot kept there. No one had come to the Bathan, From the Bathan, he went home and there he saw that members of the family were weeping. He found his sister and sister-in-law weeping and saying that father had been killed. It appears to us that though this witness has stated in his Examination-in-Chief that the five appellants took part in the assault and he was an eye-witness, his very presence at the khalihan becomes doubtful if we notice the statement made by him in his cross-examination. From his cross-examination, it appears that he usually slept in the Bathan where cattle is tethered. In the evening preceding the night of occurrence after, he had fed the cattle, no one had come to the Bathan, and when he went home, he found the members of the family weeping and saying that father had been murdered. These facts go to show that this witness did not sleep in the khalihan on the night of occurrence. From the Bathan, he had gone to his house and there he found the members of the family weeping and saying that his father had been killed. It is difficult to believe having regard to these facts admitted by him that this witness had slept in the khalihan on the night of occurrence. From the Bathan, he had gone to his house and there he found the members of the family weeping and saying that his father had been killed. It is difficult to believe having regard to these facts admitted by him that this witness had slept in the khalihan on the night of occurrence. From the tenor of his depositions, it appears that, he was at the Bathan that night and when he returned home, he came to know about the murder of his father and found his family members weeping. 16. This witness has stated that the police had seized a torch and lantern from his khalihan. The torch belonged to Yamuna Yadav (P.W. 1) and the lantern belonged to him. It is indeed surprising that while on the one hand the informant claimed that the torch belonged to him and it was with the help of his torch that he identified the assailants, on the other this witness claimed that the torch belonged to Yamuna Yadav and not to the informant. If his statement is to be believed, there was no torch in the hands of the informant with the help of which he could have identified the assailants. 17. We have carefully read the deposition of the two eye-witnesses and we are convinced that these eye-witnesses did not steep in the khalihan on the date of occurrence and one therefore, not eye-witnesses. They came to know about the occurrence for the first time when the news was broken to the family members by those who may have found the dead bodies of the deceased in the khalihan. That is why these witnesses have not stated anything about their raising any alarm or about the witnesses coming to the place of occurrence soon after the offence was committed. Since they have not stated about the witnesses coming to the place of occurrence, the question of their giving information to such witnesses does not arise. 18. The prosecution has relied upon the testimony of several witnesses who claimed that they has rushed to the place of occurrence on hearing the alarm. We have already noticed the testimony of P.W. 1 who merely claims to be a witness to the inquest report and has not stated anything about the occurrence, or about his having gone to the place of occurrence on hearing the alarm raised by the two eye-witnesses. We have already noticed the testimony of P.W. 1 who merely claims to be a witness to the inquest report and has not stated anything about the occurrence, or about his having gone to the place of occurrence on hearing the alarm raised by the two eye-witnesses. P.W. 4, Budhan Mistri claims that on hearing the hulla he went from his home to khalihan and found P.W. 1, Yamuna Yadav, P.W. 5, Boli Yadav, P.W. 11, Chiraiyan Yadav and P.W. 13, Lalo Yadav (informant) present there. Lalo Yadav mentioned that he had witnessed the assault. This witness has stated that his village is about 100 Bans away from the place of occurrence, but he admitted that he was told about the occurrence at his village by Baleshwar Singh, P.W. 2 and Rajendra Prasad (P.W. 12). This means that after some of the witnesses had returned from the place of occurrence this witness may have gone to the place of occurrence. He has not stated that either of the two eye-witnesses named the assailants before him. In fact it was Lalo Yadav (P.W. 13) who claimed to have witnessed the occurrence. This witness has made a significant statement in course of his cross-examination that there was dispute between Lalo, the informant, and Baldeo one of the appellants, but there was no dispute between Baldeo and his family members on the one hand and Prayag and Prabhu (deceased) on the other. He also admitted that before the police he had not stated that Lalo had told him that the appellants had killed Prayag and Prabhu. It appears from the testimony of this witness that he did not go to the place of occurrence immediately after hearing the alarm, because he admits that in the village itself he had been informed about the occurrence by P.W. 2 and P.W. 12 who had returned from the place of occurrence. He has further stated that Lalo claimed to be an eye-witness as he had seen the five appellants killing the deceased. Lalo Yadav, P.W. 13, however, does not claim to be any witness of the actual assault. Counsel for the appellants submitted that this witness has admitted that the appellants had no enmity with the deceased and enmity; if any, they had with Lalo (informant) and that is why Lalo has got them implicated in this case. 19. Lalo Yadav, P.W. 13, however, does not claim to be any witness of the actual assault. Counsel for the appellants submitted that this witness has admitted that the appellants had no enmity with the deceased and enmity; if any, they had with Lalo (informant) and that is why Lalo has got them implicated in this case. 19. P.W. 2, Baleshwar Singh also states that on hearing hulla, he went to the khalikan of the deceased where he found P.W. 1, Yamuna, P.W. 13, Lalo Yadav (informant) and the two eye-witnesses, namely, P.W. 5 and P.W. 11 and they were saying that Dasrath had killed Prayag while Amirak had killed Prabhu. This witness had accompanied them to the police station and had witnessed the first information report. According to this witness, he had witnessed the seizure of the lantern and the torch along with Yamuna Yadav (P.W. 1). Similarly, he had witnessed the seizure memo relating to blood-stained earth along with Yamuna Yadav (P.W. 1). P.W. 1, however, does not claim to be a seizure witness and only claims to be a witness to the inquest. This witness has not claimed that he had gone back to the village and informed any villager about the occurrence. In fact, his deposition is to the effect that he accompanied the informant to the police station. This witness has admitted that he had purchased some of the lands from his cousin, Gonauri Singh. Out of the same lands 4 decimals of land had been purchased by the appellants in the name of Baldeo and Amirak and they were in possession of those lands. Counsel for the appellants submitted that this witness entertained a grudge against the appellants. This witness has stated that one day before the occurrence, there was a quarrel between the appellant, Baldeo and Prayag (deceased), etc. in relation to the Bathan, but this witness did not know as to whether any case had been registered or Sadhu Yadav had been injured in that occurrence. 20. P.W. 3, Ramdeo Singh, who is also a witness to the inquest similarly stated that on hearing hulla, he had gone to the khalihan of the deceased and seen P.Ws. 15, 11 and 13 present there. Though this witness states that a number of villagers had come, he did not remember their names. 20. P.W. 3, Ramdeo Singh, who is also a witness to the inquest similarly stated that on hearing hulla, he had gone to the khalihan of the deceased and seen P.Ws. 15, 11 and 13 present there. Though this witness states that a number of villagers had come, he did not remember their names. He admits that he is Bhagina of Baleshwar (P.W. 2) but this witness has not even named Baleshwar as a person whom he met soon after the occurrence. Similarly, Jugal Singh (P.W. 6) claims to have gone to the khalihan of the deceased. He admits that only the relatives of Lalo (P.W 13) and Baleshwar (P.W. 2) were told about the occurrence. This witness could not name any of the persons who had assembled there. This witness is a brother of Baleshwar (P.W. 2) but he has not even mentioned the presence of Baleshwar at the khalihan of the deceased. Chhotan Yadav (P.W. 8) similarly claims to have gone to the place of occurrence on hearing hulla. He also admitted that only the relatives of Lalo Yadav and Baleshwar Singh came to the khalihan of the deceased, P.W. 9 and P.W. 12 have been tendered. P.W. 10, Horil Mahto also claims to have gone to the khalihan of the deceased on bearing hulla and then came to know about the assailants. He has, however, made a significant statement in his cross-examination that Ram Prasad Yadav had come to the place of occurrence and he had taken informant and Boli Yadav (P.W. 5) to the police station for lodging a case. From the suggestions made to the witnesses, it appears to be the case of defence that Ram Prasad Yadav was the person who was instrumental in concocting a false case as he was an expert in these matters. The informant denied that Ram Prasad had come to the village. P.W. 10, however, categorically stated that Ram Prasad Yadav had come to the khalihan and had taken Lalo, Chiraiyan, etc. to the police station. 21. That leaves us with the deposition of Ram Prasad Yadav (P.W. 7). This witness claims to be a witness to the fardbeyan lodged by Lalo Yadav, which was written in his presence at the police station. to the police station. 21. That leaves us with the deposition of Ram Prasad Yadav (P.W. 7). This witness claims to be a witness to the fardbeyan lodged by Lalo Yadav, which was written in his presence at the police station. Though the fardbeyan is purported to have been recorded at 4.00 a.m., according to this witness the first information report was scribed at 6.30 a.m. This witness is a Sarpanch of Gram Panchayat Kawakole. In his cross-examination, he stated that after the occurrence Lalo Yadav (P.W. 13), etc. had not met him. He does not work in the police station. Lalo Yadav was his maternal uncle and Lalo Yadav (P.W. 13) is the nephew of Lato Yadav. He denied the suggestion that in consultation with him a false case has been concocted. The presence of this witness at the police station at 4.00 a.m. in the morning to witness the fardbeyan of Lalo has remained surrounded in mystery. P.W. 13 the informant denies the fact that Ram Prasad Yadav (P.W. 7) had come to the fardbeyan where the occurrence took place but is contradicted by Horil Mahto (P.W. 10) who states that it was Ram Prasad Yadav who had taken the informant and others to the police station. Ram Prasad Yadav (P.W. 7) gives no reason for his presence at the police station and has asserted that after the occurrence, Lalo Yadav, etc. had not even met him. Counsel for the appellant submitted that these suspicious circumstances support the defence suggestion that it is this Ram Prasad Yadav (P.W. 7) who has been instrumental in concocting a false case since he was an expert in litigation and was known to the police station. He has further drawn our attention to the statement of P.W. 13 in paragraph 13 of his deposition that on the following day the Investigating Officer had come to the village along with this Ram Prasad Yadav, It is not necessary for us to speculate as to whether it was Ram Prasad Yadav or any one else who may have concocted the prosecution case. We can only take notice of facts which are established on record and we are also aware of the legal position that it is for the prosecution to prove its case beyond reasonable doubt. 22. In this case, the primary evidence is that of the eye-witness, P.Ws. 5 and 11. We can only take notice of facts which are established on record and we are also aware of the legal position that it is for the prosecution to prove its case beyond reasonable doubt. 22. In this case, the primary evidence is that of the eye-witness, P.Ws. 5 and 11. The others have derived knowledge from these two witnesses. If it is held that P.Ws. 5 and 11 were not present in the fardbeyan at the time of occurrence that would prove fatal to the prosecution. We do not place much reliance upon P.W. 13, the informant, because he has made significant changes in the course of his deposition departing from the version which he has stated in the fardbeyan. The evidence with regard to seizure of torch and lantern is most unsatisfactory. It, therefore, creates serious doubt, as to whether P.W. 13 was at all in a position to identify the assailants. The eye-witnesses have not stated that they raised an alarm which attracted the attention of co-villagers. The eyewitnesses have not even stated that several people from the village came on hearing alarm and they narrated the incident to them. In such state of the evidence on record, it is difficult to accept the prosecution case, particularly when the two eye-witnesses have admitted facts in their cross-examination, which lead us to suspect their very presence in the fardbeyan at the time of occurrence, because these facts admitted by them would go to establish that the eye-witnesses came to know about the occurrence while they were in the village. We, therefore, entertain serious doubt about the truthfulness of the prosecution case. We are satisfied that the appellants are entitled to the benefit of doubt. 23. These appeals are accordingly allowed and the appellants are acquitted of all the charges levelled against them. It is stated that all the appellants are on bail. Their bail bonds are discharged.