JUDGMENT M.L. VISA, J.:- This appeal is directed against the judgment and order dated 11.7.89 passed by Sessions Judge, Sitamarthi in Sessions Trial No. 161/83 convicting and sentencing all the four appellants to undergo R.I. for in years each under section 304 Part II of the Indian Penal Code (in short, I.P.C.). 2. The case of prosecution in short is that on 20.4.82 complainant Binita Devi (PW 7) after sun set went to a maize field situate by the side of her house to attend the call of nature when co-accused Rajendra Chaubey all on a sudden came there, caught hold of her hand and asked her for sexual intercourse. The complainant raised 'hulla' on which her 'dewar' Ajab lal Choubey came there running and then co-accused Rajendra Chaubey fled away. Thereafter Ajab lal Chaubey went to the house of co-accused Rajendra Chaubey and abused him. On the same day in the mid-night all the four appellants along with co-accused Rajendra Chaubey and co-accused Ram Jatan Chaubey came to the house of complainant and called Ajab lal Chaubey and when Ajab lal Chaubey carrying a torch came out of his houe followed by complainant co-accused Rajendra Chaubey ordered his companions to kill Ajab lal Chaubey on which all the appellants and co-accused Rajendra Chaubey and co-accused Rma Jatan Chaubey started assaulting Ajab Lal Chaubey who after receiving injuries fell down and became unconscious. Thereafter the appellants, co-accused Rajendra Chaubey and Ram Jatan Chaubey carried Ajab Lal Chaubey to the house of co-accused Rajendra Chaubey. There also the appellants, co-accused Rajendra Chaubey, Ram Jatan Chaubey and a police constable who was there assaulted Ajab Lal Chaubey and kept him confined in the house of co-accused Rajendra Chaubey. On the next day in the morning co-accused Rajendra Chaubey got Ajab Lal Chaubey who was injured, sent to police station on a bullock cart along with police constable. From the police station Ajab Lal Chaubey was sent to Sadar Hospital, Sursand where he died on the same day. The complainant went to Sursand police station and stated the occurrence before the officer-in-charge and when after performance of 'saradh' of her 'dewar' Ajab Lal Chaubey she enquired about her case she came to know that the police had not registered a case and the police had gone in favour of co-accused Rajendra Chaubey. The complainant went to Sursand police station and stated the occurrence before the officer-in-charge and when after performance of 'saradh' of her 'dewar' Ajab Lal Chaubey she enquired about her case she came to know that the police had not registered a case and the police had gone in favour of co-accused Rajendra Chaubey. The complainant then on 3.5.82 tiled a complaint petition (Ext.3) In the court of Sub-divisional Judicial Magistrate, Sitamarhi, East against all the four appellants and co-accused Rajendra Chaubey and Ram Jatan Chaubey. After enquiry under section 202 of Cr.P.C., the Sub-divisional Judicial Magistrate, Sitamarhi. East found sufficient grounds for proceeding in the case and he issued non-bailable warrant against the appellants and co-accused Rajendra Chaubey and Ram Jatan Chaubey and after supply of copies of papers the case was committed to the court of Sessions where charge under section 302 I.P.C. against all the four appellants and against co-accused Rajendra Chaubey and Ram Jatan Chaubey and further charges under section 302/114 and 354 I.P.C. against Rajendra Chaubey were framed. During the pendency of the trial co-accused Rajendra Chaubey and Ram Jatan Chaubey died and the trial, therefore, proceeded against the present four appellants only. 3. The case of appellants as it appears from the witnesses examined on their behalf as well as from the trend of cross examination of prosecution witnesses, is that a theft on 19.4.82 was committed in the house of co-accused Rajendra Chaubey for which he lodged Sursand P.S. Case No. 35/82 against unknown. On the next day, i.e., 20.4.82 in the night deceased Ajab Lal Chaubey and one Musai Magar Paharia, who was servant of co-accused Rajendra Chaubey, were caught in the village by the villagers where they were dividing booty of theft committed in the house of co-accused Rajendra Chaubey and deceased Ajab Lal Chaubey was assaulted by the villagers and in the meantime one police constable reached there who brought the deceased and Musai Magar Paharia to police station where Musai Magar Paharia lodged a case registered as Sursand P.S. Case No. 37/82, the investigation of which ended in submission of final form declaring the case true but of no clue. According to the appellants they have been falsely implicated in this case. 4. According to the appellants they have been falsely implicated in this case. 4. The court below after trial found all the four appellants guilty under section 304 Part II of the I.P.C. and convicted and sentenced each of them to undergo R.I. for 10 years as stated above. 5. In order to prove its case the complainant has examined nine witnesses. Binita Devi (PW 7) is the complainant. Indradeo Chaubey (PW 2), Madeshwar Chaubey (PW 3), Bishwanath Chaubey (PW 4), Dila Devi (PW 5) and Anirudh Chaubey (PW 6) are said to be the eye witnesses to the occurrence. Ashesar Chaubey (PW 8) has been tendered. Dr. J.N. Purbey (PW 9) had examined the deceased Ajab Lal Chaubey on 30.4.82. Dr. Bishwanath Bajoria (PW 1) had held post mortem examination on the dead body of Ajab Lal Chaubey on 22.4.82. 6. Dr. J.N. Purbey (PW 9) has said that on 21.4.1982 he was working a Medical Officer Incharge, Sursand Primary Health Centre and on that day at 8.30 A.M. he examined Ajab Lal Chaubey and found the following injuries :- 1. Diffused swelling of the dorsum of both hands. 2. Bleeding from half inch lacerated wound on the dorsum of right middle finger. 3. Diffused swelling on both forearms. 4. Diffused sevelling on left calf. 5. Complained of pain over whole body due to fists and heels (mercilessly beaten). He has further stated that the condition of the patient was serious and he therefore referred the patient to Sitamarhi but the patient died at 10.15 A.M. during management for transport and the patient was all along under the custody of police during his examination and stayed at Medical Centre. About the age of injuries he has said that it was within 12 hours and injuries were caused by hard and blunt substance such as 'lathi' and cane and injuries were sufficient in ordinary course of nature to cause death. 7. Dr. Bishwanath Bajoria (PW 1) has stated that on 22.4.82 when he was posted as Civil Assistant Surgeon at Sitamarhi he at about 1.30 P.M. held post mortem examination on the dead body of Ajab Lal Chaubey and found the following external injuries on the dead body:- 1. One incised wound of size 1/2" x 1/5" x 1/4" on the dorsum of right hand at the third meta carpo phalangeal joint region. 2. Swelling on dorsum of right hand. 3. One incised wound of size 1/2" x 1/5" x 1/4" on the dorsum of right hand at the third meta carpo phalangeal joint region. 2. Swelling on dorsum of right hand. 3. Abrasion 4" x 3" with swelling on back of right leg. 4. Swelling on left forearm. 5. Multiple abrasion of varying sizes on both buttocks. 6. One abrasion of 4 1/2" x 1 1/2" on lumber vertebral region. 7. Abrasion with bruise 3" x 1" on back of chest in lower part. He has further stated that he found an internal injury which was lacerated wound at posterior part of Liver and blood was found in the peritonial cavity. According to him time elapsed since death was About 36-48 hours and all the injuries except external injury no.1 were caused by hard and blunt substance which may be a 'lathi' and internal injury was caused due to external injury no.7 and the cause of death was internal injury no.1. All the injuries taken together were sufficient for death in normal course. Although ho has not given the cause of external injury no.1 which was an incised wound on the dorsum of right hand at the third meta carpo phalangeal joint region but his evidence that either injuries which were caused by hard and blunt substance which may be a 'lathi' coupled with evidence of P.W. 9, who also found injuries on the deceased caused by hard and blunt substance which may be a 'lathi' and in whose presence the deceased had died proves that the deceased died of injuries caused by 'lathi'. This point is not in dispute because according to the defence also the deceased died when he was assaulted by the villagers who caught him sharing the booty of theft with Musai Magar Paharia. 8. Now it has to be seen what evidence has been led by complainant in support of her case that the injuries which resulted into the death of deceased were inflicted on him by the appellants. 9. Binita Devi (PW 7) in her evidence has stated that on the day of occurrence she had first gone to a field to ease out when co-accused Rajendra Chaubey came there, caught hold of her arm and wanted to commit rape on her and when she raised alarm the deceased came and the co-accused Rajendra Chaubey fled away. 9. Binita Devi (PW 7) in her evidence has stated that on the day of occurrence she had first gone to a field to ease out when co-accused Rajendra Chaubey came there, caught hold of her arm and wanted to commit rape on her and when she raised alarm the deceased came and the co-accused Rajendra Chaubey fled away. Thereafter deceased went to the house of co-accused Rajendra Chaubey and after returning from there informed the complainant that he had insulted co-accused Rajendra Chaubey. She has further stated that on the same day in the mid night when she was sleeping in her house along with deceased and his wife all the appellants along with co-accused Rajendra Chaubey and Ram Jatan Chaubey armed with 'lathis' came there and co-accused Rajendra Chaubey ordered his companions to kill the deceased on which all the appellants and co-accused Rajendra Chaubey and Ram Jatan Chaubey assaulted the deceased with 'lathis' as a result of which the deceased fell down and became unconscious. The appellants and their companions carried the deceased to the house of co-accused Rajendra Chaubey. She and wife of deceased followed them and found that at the 'darwaja' of co-accused Rajendra Chaubey the appellants, co-accused Rajendra Chaubey and Ram Jatan Chaubey and a police constable again assaulted the deceased with 'lathis' and kept him confined in a room. She and wife of deceased remained there and requested the appellants to release the deceased on which they replied that only after the death of deceased his dead body would be handed over. According to her the appellants for whole night did not bring the deceased out of their house and in the morning co-accused Rajendra Chaubey sent the deceased to police station on a bullock cart along with a police constable. She and the wife of deceased followed the bullock cart and went upto Sursand Police Station where she narrated the occurrence to officer-in-charge of Police station who told her to take steps for treatment to the deceased and thereafter deceased was given some treatment at hospital where after sometime he died. After the death of deceased she went to Officer-in-charge of Sursand Police Station and got her statements recorded and came back to her house on the assurance of police for taking further action. After the death of deceased she went to Officer-in-charge of Sursand Police Station and got her statements recorded and came back to her house on the assurance of police for taking further action. The dead body of deceased was sent for post mortem examination and thereafter she received the dead body of deceased and cremated the same. After 'saradh' which was performed after 13 days of death, she again went to the police station and enquired from the officer-in-charge about her case, who told her that she cannot fight with the accused persons who were strong and powerful and advised her to keep quiet. She has added that she came to know that no case was recorded by the police and thereafter she went to a lawyer at Sitamarhi and filed a complaint petition in the court of Sub-divisional Judicial Magistrate, Sitamarhi, East. 10. Dila Devi (PW 5) is the wife of deceased and she has said that at the time of occurrence she was sleeping in her house along with deceased and complainant was also sleeping in her house in the 'angan' and she awoke when she heard that somebody was calling the name of her husband. Her husband also awoke and went to the 'darwaja' with a torch and she and complainant followed him and when they went to the 'darwaja' of the house they saw four appellants with co-accused Rajendra Chaubey and Ram Jatan Chaubey armed with 'lathis' and thereafter at the order of co-accused Rajendra Chaubey all the appellants as well as Rajendra Chaubey and Ram Jatan Chaubey assaulted her husband with 'lathis' and her husband fell down and became unconscious and thereafter the appellants and their companious carried her husband to the house of co-accused Rajendra Chaubey. She and complainant followed the appellants and saw that at the 'darwaja' of co-accused Rajendra Chaubey there was a police constable and there also her husband was assaulted by the appellants, co-accused Rajendra Chaubey and Ram Jatan Chaubey and also by the police constable and on the next day in the morning her husband was sent to police station with the police constable by co-accused Rajendra Chaubey. She and complainant followed the bullock cart on which her husband was sent to police station and in the police station the (complainant narrated the incident to police and her husband was sent to hospital where he died. 11. She and complainant followed the bullock cart on which her husband was sent to police station and in the police station the (complainant narrated the incident to police and her husband was sent to hospital where he died. 11. Indradeo Chaubey (PW2), Madeshwar Chaubey (PW 3), Bishwanath Chaubey (PW 4), and Anirudh Chaubey (PW 6) have stated that on hearing 'hulla' they went to the house of deceased where they found the deceased was being assaulted by appellants, co-accused Rajendra Chaubey and Ram Jatan Chaubey and then the deceased tell down and became unconscious. He was carried by appellants and the other two co-accused persons to the house of co-accused Rajendra Chaubey and there also the deceased was assaulted by the appellants, two co-accused persons and one police constable and thereafter the- deceased was kept confined in the house of co-accused Rajendra Chaubey. Indradeo Chaubey (PW 2) and Bishwanath Chaubey (PW 4) have stated that they returned back to their houses from the house of co-accused Rajendra Chaubey whereas Madeshwar Chaubey (PW 3) in his evidence has said that on the next day in the morning the deceased was sent to the police station by co-accused Rajendra Chaubey on a bullock cart and in cross-examination he has said that he had accompanied the deceased to police station. The complainant in her evidence has not stated that when her deceased 'dewar' was being taken to police station and when she and wife of deceased followed him up to there any body else had also gone there with them. 12. The case of defence is that when the deceased and Musai Magar Paharia were sharing the booty of a theft committed in the house of co-accused Rajendra Chaubey they were caught by villagers who assaulted the deceased and thereafter Musal Magar Paharia lodged a case which was registered as Sursand P.S. Case No. 37/82 for the assault of deceased by some unknown villagers. Anil Kumar Verma (DW 1), police officer, has said that in the year 1982-83 he was posted as Officer-in-charge Sursand police station and on 5.5.82 he took charge of investigation of Sursand P.S. Case No. 37/82 of which Musai Magar Paharia was the informant. Anil Kumar Verma (DW 1), police officer, has said that in the year 1982-83 he was posted as Officer-in-charge Sursand police station and on 5.5.82 he took charge of investigation of Sursand P.S. Case No. 37/82 of which Musai Magar Paharia was the informant. He has further stated that during the course of investigation of this case he recorded the statements of the complainant Binita Devi (PW 7) and Dila Devi (PW 5), wife of deceased and after investigation submitted final form declaring the case true but of no clue. 13. Durga Prasad (DW 2) has proved paras 25 and 33 of police case diary and these paragraphs are marked as Ext.D and D/1. These paragraphs are statements of complainant (PW 7) and Dila Devi (PW 5) recorded during the investigation of Sursand P.S. Case No. 37/82 where they had admitted that Musai Magar Paharia belongs to the 'naihar' of Dila Devi (PW 5) and they had got him engaged as servant of co-accused Rajendra Chaubey whereas in their evidence they have denied it. The defence has brought these statements on record in order to impeach the creditability of complainant and Dila Devi because in their evidence they have denied to know Musai Magar Paharia. Ext. A is the certified copy of charge sheet submitted by the police in Sursand P.S. Case No. 35/82 which was lodged by co-accused Rajendra Chaubey for a theft committed in his house in the night between 18.4.82 and 19.4.82 and it shows that charge sheet was submitted against Musai Magar Paharia and deceased Ajab Lal Chaubey showing him dead.. Ext. B is the certified copy of the order sheet of the court of Sri Om Prakash, Judicial Magistrate, Sitamarhi (East) showing that on the basis of confession of accused Musai Magar Paharia he was convicted and sentenced to undergo R.I. for two years in the case which was lodged by co-accused Rajendra Chaubey. Ext. C is the certified copy of final form submitted by police in Sursand P.S. Case No. 37/82 filed by Musai Magar Paharia. The defence has also filed certified copy of 'khatiyan' which is marked as Ext. E showing that 'khatiyan' in respect of certain land is in Joint names of deceased Ajab Lal Chaubey, Indradeo Chaubey (PW 2), Bishwanath Chaubey (Ext.4) and Atinandan Chaubey, who is father of Anirudh Chaubey (PW 6). The defence has also filed certified copy of 'khatiyan' which is marked as Ext. E showing that 'khatiyan' in respect of certain land is in Joint names of deceased Ajab Lal Chaubey, Indradeo Chaubey (PW 2), Bishwanath Chaubey (Ext.4) and Atinandan Chaubey, who is father of Anirudh Chaubey (PW 6). From this 'khatiyan' it is clear that PW 2, PW 4 and father of PW 6 were jointly having certain lands with the deceased. Now there remains only Madeshwer Chaubey (PW 3) who is also said to be an eye witness to the occurrence but he also in para 6 of his evidence has admitted his relationship with the family of deceased. So I find that all the witnesses examined on behalf of complainant are closely related to the deceased. 14. Although the occurrence is said to have taken place on 20.4.82 but the complaint has filed on 3.5.82. About the reason of delay the case of complainant is that when she after performing 'saradh' of her 'devar' came to know that police had not instituted any case on her statements which she had given immediately after the occurrence she filed the present complaint petition. The court below after observing that co-accused Rajendra Chaubey was a villager of complainant and the complainant being young widow might have been an attraction for co-accused Rajendra Chaubey and the way in which police conducted investigation of case it appears that police had a "leaning towards co-accused and Rajendra Chaubey" and the possibility of "show of apprehension of own servant of co-accused Rajendra Chaubey" and assault by appellants on deceased cannot be ruled out. I do not find any basis for giving such observation. Admittedly the cases investigation of which by police has been considered by the court below not satisfactory were the cases lodged by co-accused Rajendra Chaubey and Musai Magar Paharia. It is true that in order to create defence a person can put pressure on his servant to give a particular statement but then in this case the servant of co-accused Rajendra Chaubey confessed his guilt in the theft case lodged by co-accused Rajendra Chaubey and he was convicted and sentenced to undergo R.I. for two years. It is true that in order to create defence a person can put pressure on his servant to give a particular statement but then in this case the servant of co-accused Rajendra Chaubey confessed his guilt in the theft case lodged by co-accused Rajendra Chaubey and he was convicted and sentenced to undergo R.I. for two years. This is a very strong circumstance which supports the case of defence that a theft in the house of co-accused Rajendra Chaubey on the night between 18.4.82 and 19.4.82 was committed and in which police submitted charge sheet against Musai Magar Paharia and this deceased showing him dead and as stated above Musai Magar Paharia confessed his guilt and was convicted and sentenced. Musai Magar Paharia had also filed a case giving details for the assault on deceased by villagers. The police lodged the case and took up its investigation. Had it be only at the Instance of appellants their purpose was already served when this case was registered. There was no reason for Musai Magar Paharia to make confession and receive punishment of imprisonment in the case of theft which was filed by co-accused Rajendra Chaubey. Apart from this circumstance the entire evidence adduced on behalf of complainant does not appear to be convincing. The case of complainant is that in the mid night the appellants along with co-accused Rajendra Chaubey and Ram Jatan Chaubey came to her house. assaulted the deceased, carried the deceased to the house of co-accused Rajendra Chaubey, and she and the wife of deceased also followed appellants and went up to the house of co-accused Rajendra Choubey and there they found a police constable present. According to complainant the police constable also assaulted the deceased and in the morning the deceased was sent to the police station along with police constable. The presence of police constable at that time at the house of co-accused Rajendra Chaubey becomes quite doubtful. The further case of complainant is that she and the wife of deceased remained at the house of co-accused Rajendra Chaubey for the remaining period of night and in the morning when deceased was sent to the police station on a bullock cart she and the wife of deceased followed the bullock cart up to the police station. This also does not appear to be believable. This also does not appear to be believable. When the deceased was confined in the house of co-accused Rajendra Chaubey the normal conduct of complainant and the wife of deceased would have been to raise alarm or at least to go to the villagers and inform them about the occurrence but in spite of doing this they remained at the house of co-accused Rajendra Chaubey and in the morning they went up to police station following the bullock cart. It is really very strange that the deceased was assaulted at his own house and thereafter he was carried to the house of co-accused Rajendra Chaubey and there also he was assaulted and kept contained for the whole night in the house but not a single villager except the own relations of complainant has come forward to support the case of complainant. 15. Considering the entire evidence on record I find that the case of complainant, as made out, does not appear to be convincing and trustworthy. The manner of occurrence, as stated by the complainant, does not find support from the materials on record. On the other hand the case of defence appears to be more convincing about the manner in which the deceased is said to have received injuries. 16. In the result, this appeal is allowed and the appellants are acquitted. The judgment and order of the court below convicting and sentencing the appellants is hereby set aside. The appellants who are on bail are discharged from the liability of their bail bonds.