Judgment R.N.Prasad and M.L.Visa JJ. 1. This appeal is directed against the judgment and order dated 30-4-1987 passed by 6th Addl. Sessions Judge, Arrah in Sessions Trial No. 250 of 1980 convicting and sentencing all the appellants to undergo R I. for life under Secs. 302 /149 of the Indian Penal Code (in short, IPC) and RI. for a period of one year each under Sec. 147, IPC. Appellant Ganesh Yadav has been further convicted and sentenced to undergo RI. for two years under Sec. 379, IPC. All the sentences have, however, been ordered to run concurrently. 2. The case of prosecution as disclosed from the fardbeyan, Of Chawkidar Bachan Yadav (not examined) recorded on 17-12-1977 at 8.30 a.m, is that on the night of 16-12-1977 there was a hulla in the village that one Awadhesh Rai had been killed in Khil Badhar while watching his paddy crops. On hearing this hulla Chawkidar Bachan Yadav along with other villagers went to Khil Badhar where he found dead body of Awadhesh Rai lying in a field of paddy with a fire arm injury on his waist and neck of the body was found cut. On enquiry Chawkillar Bachan Yadav came to know that the deceased with his ride along with Madan Rai (PW 6), Mun Mahesh Rai (PW 8), Bhadai Ahir (PW 3), Ayodhya Kahar (not examined) and Jhana Ahir (not examined) had gone to Khil Badhar for watching paddy crop. Madan Rai (PW 6) was armed with his licence gun. At about 12.30 Oclock in the night about 8-10 persons armed with guns and rifles came from the western side and fired at Awadhesh Rai hitting on the right side of waist and when Awadhesh Rai fell down his rifle was thrown which was picked up by the miscreants and they also snatched gun from Madan Rai (PW 6) and said that they were Naxalites and ordered the deceased and his party to surrender and thereafter they left the place and went towards eastern side of the village. He also came to know that the miscreants fired three rounds. Chawkidar Bachan Yadav narRaied this incident to dafadar and in the morning he went to police station where he lodged the fardbeyan. In the fardbeyan, he stated that in spite of great persuasion Madan Rai (PW 6) did not agree to come to police station. He also came to know that the miscreants fired three rounds. Chawkidar Bachan Yadav narRaied this incident to dafadar and in the morning he went to police station where he lodged the fardbeyan. In the fardbeyan, he stated that in spite of great persuasion Madan Rai (PW 6) did not agree to come to police station. He further stated that about the description of miscreants the persons who were with the deceased will be in a position to tell the same. On the basis of fardbeyan of Chawkidar Bachan Yadav a case against unknown was registered and police took up the investigation. It appears that later on investigation of the case was entrusted to Inspector, CID, Investigation Branch and chargesheet under Secs. 302/34 and 379, IPC was submitted against the appellants. After taking cognizance, the case was committed to the Court of Sessions where charges urider Secs. 302/149, 147 and 379, IPC were framed against the appellants. The appellants denied the charges. The case of appellants as it appears from the trend of cross-examination of prosecution witnesses and from the evidence of witnesses examined on their behalf is that they have been falsely implicated in this case at the instance of Kapildeo Rai, who happens to be the Samadhi of Madan Rai (PW 6) because Chawkidar Bachan Yadav, who is, brother of appellants Ganesh Yadav and Naresh Yadav, had lodged a complaint against Kapildeo Rai in respect of a land dispute between Kapildeo Rai and Awadhesh Rai. The Court below after trial found the appellants guilty under Secs. 302/ 149, IPC and further found appellant Ganesh Singh guilty under Sec. 379. IPC and, accordingly, convicted and sentenced them as indicated above. 3. Altogether 12 witnesses have been examined on behalf of prosecution. Ram Awadhesh Choudhary (PW 11) and MuRai Rai (PW 12) are formal witnesses Ram Awadhesh Choudhary (PW 11) has proved the signatures of Bhadai Yadav (PW 3). Sharif a Yadav (PW 9) and Jhana Ahir (not examined) on affidavits (Exts. 4. 4/1 and 4/2) and MuRai Rai (PW 12) has proved the formal FIR (Ext. 5). Ram Dhani Rai (PW 1) is the father of deceased Awadhesh Rai and he is a hear say witness. Ram Janam Rai (PW 2) is also a hearsay witness. Sharif a Yadav (PW 9) and Jhana Ahir (not examined) on affidavits (Exts. 4. 4/1 and 4/2) and MuRai Rai (PW 12) has proved the formal FIR (Ext. 5). Ram Dhani Rai (PW 1) is the father of deceased Awadhesh Rai and he is a hear say witness. Ram Janam Rai (PW 2) is also a hearsay witness. Bhadai Yadav (PW 3) and Sharif a Yadav (PW 9) have not supported the case of prosecution against the appellants and they have been declared hostile. Bameshwar Rai (PW 4). Ram Talika Rai (PW 5), Madan Rai (PW 6) and Mun Mahesh Rai (PW 8) are said to be eyewitnesses to the occurrence. Dr. Bhairaw Prasad (PW 7) had held post-mortem examination on the dead body of deceased Awadhesh Rai. AN. Singh Jha (PW 10) is the 1.0. who had taken the charge of investigation on 13-7-1978. 4. Dr. Bhairaw Prasad (PW 7), in his evidence has stated that on 18-121977, he was posted as Civil Assistant Surgeon, Sadar Hospital, Arrah and on that day at 10.00 a.m. he held postmortem examination on the dead body of Awadhesh Rai and found following ante-mortem injuries on the person of the deceased: (i) Incised wound 5" x 2" x bone deep on the middle of the neck cutting the skin, muscles, hyoid bones, nerves. Vessels trachea and oeseophagus and other soft tissues. (ii) Lacerated wound, the margin being black and charring. 3/4" x 1/2", nearly oval shape and chest cavity deep. This was wound of entry in the right axillary region. (iii) Lacerated wound 1-1/2" x l" x chest cavity deep on the neck below the left scapular interior angle. This was wound of exit of injury No. (ii). (iv) Lacerated wounds four in number. Size varying from 1/ 3" to 1/4" x bone deep on the upper part of the right bullock towards the middle. According to him injury No. (t) was caused by sharp edged weapon which may be a fasuli and injury Nos. (ii), (iii) and (iv) were caused by fire arms and the time elapsed since death was within 48 hours and death was caused by shock and haemorrhage due to aforesaid injuries: From the evidence of this witness it appears that deceased Awadhesh Rai died of injuries caused by fire arms and sharp edged weapon and his death was homicidal. (ii), (iii) and (iv) were caused by fire arms and the time elapsed since death was within 48 hours and death was caused by shock and haemorrhage due to aforesaid injuries: From the evidence of this witness it appears that deceased Awadhesh Rai died of injuries caused by fire arms and sharp edged weapon and his death was homicidal. 5 Now it has to be seen what evidence has been led by prosecution against the appellants making them responsible for the aforesaid injuries which resulted in the death of deceased Awadhesh Rai. Ram Talika Rai (PW 5) in his evidence has stated that he along with deceased, Madan Rai (PW 6), Mun Mahesh Rai (PW 8), Sharifa Yadav (PW 9), Bhadai Yadav (PW 3). Jhana Ahir (not examined) had gone to Khil Bhadar to watch the paddy crop. Madan Rai (PW 6) was carrying a torch and a gun and deceased was carrying a rifle. At about 11.30 p.m. when they were sitting under a tree they heard the sound of coming of some persons and when Madan Rai enquired who they were, appellant Shyam Bihari Yadav disclosed that he along with appellants Ganesh Yadav and Naresh Yadav had come there to watch the paddy crop and then Madan Rai flashed his torch light and in the light of torch, he identified all the three appellants. He has further stated that there was 8-10 more persons behind them and thereafter appellant Ganesh Rai snatched the gun of Madan Rai and one out of those 8-10 miscreants fired on deceased Awadhesh Rai and Awadhesh Rai fell down. Thereafter one another miscreant again fired on Awadhesh Rai from a close range and thereafter those miscreants fired in air and cut the neck of Awadhesh Rai and thereafter they picked up the rifle of Awadhesh Rai and went towards east. Thereafter one another miscreant again fired on Awadhesh Rai from a close range and thereafter those miscreants fired in air and cut the neck of Awadhesh Rai and thereafter they picked up the rifle of Awadhesh Rai and went towards east. Madan Rai (PW 6) and Mun Mahesh Rai (PW 8) had also stated that when they were in Khil Badhar along with the deceased all the three appellants came there and there were some other miscreants with them and thereafter appellant Ganesh Yadav snatched gun from Madan Rai and those unknown miscreants fired on deceased Awadhesh Rai and when Awadhesh Rai fell down someone from those miscreants cut the neck of deceased Awadhesh Rai and thereafter they took away the gun of Madan Rai and rifle of deceased Awadhesh Rai and fled away towards east. As stated above Bhadai Yadav (PW 3) and Sharif a Yadav (PW 9) have supported the case of prosecution on the point of firing on the deceased but they have stated that they did not identify the persons who fired on the deceased. Bhadai Yadav (PW 3) has stated that he heard the sound of firing and saw that the deceased was falling on the ground and the miscreants fled away after taking the gun and rifle and Sharifa Yadav has also stated, that there were about 10-12 miscreants and one out of them fired on the deceased and one another cut his neck and thereafter miscreants fled away with the gun arid rifle belonging to Madan Rai and deceased. 6. Ram Dhani Rai (PW 1), the father of deceased, in his evidence has stated that on the day of occurrence, he was in his house and at about 11.00 p.m. he heard the sound of three firings and thereafter he went to Khil Badhar where he found dead body of his son and also found that the rifle and torch which the deceased had carried were not there and the persons who had accompanied the deceased to Khil Badhar told him that the appellants along with 7-8 other unknown persons had committed the murder of deceased. In cross-examination, he has said that on receipt of information from witness Madan Rai about the occurrence he became unconscious and he was brought to his house by villagers and he regained consciousness after four hours. In cross-examination, he has said that on receipt of information from witness Madan Rai about the occurrence he became unconscious and he was brought to his house by villagers and he regained consciousness after four hours. In para 5 of his cross-examination, he has clearly stated that after regaining consciousness he did not want to lodge a case against the appellants. Ram Janam Rai (PW 2) is the cousin of deceased as it appears from the details of relationship given by Ram Dhani Rai (PW 1) and he in his evidence has stated that at the time of occurrence he was posted at Government School, Patna City and on receipt of information about the occurrence he went to Arrah Sadar Hospital where he saw the dead body of the deceased and in the Hospital itself he was told by Kalika Rai, Desai Rai, Ram Dhani Rai and Sharif Yadav about the names of appellants taking part in the incident. Bameshwar Rai (PW 4) is also a hearsay witness who in his evidence has stated that at the time of occurrence he was sleeping in his house and he awoke on hearing the sound of three firings and thereafter he went to Khil Badhar where he saw the dead body of deceased Awadhesh Rai and was told by witnesses, namely, Sharif Yadav, Bhadai Yadav, Madan Rai, Mun Mahesh Rai and others that the appellants along with others had committed the murder of deceased and had fled away after taking the rifle of deceased and gun of Madan Rai. 7. The prosecution in this case has not examined Chawkidar Bachan Yadav who had lodged fardbeyan on the basis of which this case was registered. Madan Rai (PW 6) in his evidence has stated that a protest petition was rued against the I.O. who was initially entrusted with the investigation of the case because he was not conducting investigation in proper manner. He has proved his signature (Ext. 2) on protest petition. Madan Rai (PW 6) in his evidence has stated that a protest petition was rued against the I.O. who was initially entrusted with the investigation of the case because he was not conducting investigation in proper manner. He has proved his signature (Ext. 2) on protest petition. He has further stated that even after filing protest petition the I.O. continued investigation and a complaint was then made to Inspector General, Bihar and thereafter the investigation of the case was handed over to CID, I.G. The Court below has given much reliance on this fact and has observed that the subsequent handing over of the investigation to CID speaks a volume against the "previous I.O. It appears that because Chawkidar Bachan Yadav who had lodged the fardbeyan happens to be the brother of appellants Ganesh Yadav and Naresh Yadav, it has been inferred by the Court below that previous I.O. was not conducting investigation properly. The second I.O. took charge of the investigation on 13-7-1978, AN. Singh Jha (PW 10) the second I.O. in his evidence has not stated that he conducted the investigation afresh. From his evidence it appears that he took charge of investigation on 13-7-1978 and completed it. This is clear from his admission that after his taking over the investigation no supervision of investigation was made because the supervision of investigation had already been completed before he took over the charge of investigation. The defence has drawn the attention of prosecution witnesses towards their contradictions in their earlier statements and in their evidence. The attention of Ram Dhani Rai (PW 1), the father of deceased has been drawn on the fact that in his earlier statement he did not state that he was told the name of any assailant of his son and he had not stated there that he went to the place of occurrence on hearing the sound of three firings and was told by Madan Rai that about 8-10 miscreants came to place of occurrence and killed his son. He has admitted that his one statement only was recorded during the course of investigation. Similarly attention of Bameshwar Rai (PW 4) has been drawn towards the fact that he had not stated earlier that witnesses present at the place of occurrence had disclosed the names of appellants. He has admitted that his one statement only was recorded during the course of investigation. Similarly attention of Bameshwar Rai (PW 4) has been drawn towards the fact that he had not stated earlier that witnesses present at the place of occurrence had disclosed the names of appellants. Attention of Ram Talika Rai (PW 5) who claims to be an eye-witness has been drawn that he had not stated earlier that he had identified the appellants and had not claimed there to be an eye-witness. Attention of Madan Rai (PW 6) has been drawn that in his earlier statement he had not stated that appellant Ganesh Rai snatched his gun and on being asked the appellants had told that they had gone there to watch the paddy crop and in his earlier statement he had stated that about 8-10 miscreants came from the western side one of them fired at deceased and the deceased fell down in the field his rifle was thrown away which was picked up by one of miscreants and the miscreants disclosed that they were Naxalites and had ordered him and. his friends to surrender and thereafter, he and his companions surrendered. Mun Mahesh Rai (PW 8), as stated earlier, has also claimed to be an eyewitness and defence has drawn his attention also that in his earlier statement he had not named any of the appellants. Madan Rai (PW 6) in his evidence has stated that his further statement was recorded by the CID Inspector two years after the occurrence. The occurrence is said to have taken place on the night between 16th and 17th day of December, 1977 whereas investigation by PW 10 was taken up on 13-7-1978. Prior to his entering into the investigation, the case was being investigated by local police and statements of witnesses were recorded by the police of Sahar Thana. Only on the ground that Chawkidar Bachan Yadav happens to be the brother of appellants Ganesh Yadav and Naresh Yadav the prosecution has withheld the examination of I.O. who had started the investigation of the case. As stated earlier the fardbeyan on the basis of which the case was registered is silent about the names of appellants. The case of prosecution during the trial is that appellants along with 8-10 miscreants came to place of occurrence and one of the unknown miscreants committed the murder of deceased. As stated earlier the fardbeyan on the basis of which the case was registered is silent about the names of appellants. The case of prosecution during the trial is that appellants along with 8-10 miscreants came to place of occurrence and one of the unknown miscreants committed the murder of deceased. In this way the case of prosecution is quite different during the trial of the case than as narrated in the fardbeyan. Ram Talika Rai (PW 5) and Madan Rai (PW 6) said to be the eye-witnesses to the occurrence, in their evidence, have admitted that Chawkidar Bachan Yadav had gone to the place of occurrence Madan, Rai (PW 6) has further admitted that Bachan Yadav was entrusted the work of watching the dead-body and at that time none of his party had any doubt or suspicion against Chawkidar Bachan Yadav. He has further stated that he himself wanted to lodge an information at the police station and early in the morning he had gone to police station where he met the officer-incharge. In spite of it he did not lodge any information. In para 18 of his cross - examination, he has admitted that Chawkidar Bachan Yadav had lodged fardbeyan with the police and before going to police station Bachan Yadav had met with him. All the witnesses claiming to be eye - witnesses to the occurrence have stated that the firing on the deceased was made by 8-10 miscreants who were with the appellants. They do not say that anyone of the appellants fired on the deceased and cut his neck. Madan Rai (PW 6) who is an eye - witness in this case and who has said that he filed a protest petition in para 33 has admitted that before the second I.O. he had stated that the miscreants while leaving the place of occurrence raised slogans "Naxalwad Zindabad". In the fardbeyan also it is stated that the deceased was killed by some Naxalites. Ram Jatan Rai (PW 2) in his cross - examination has stated that at the relevant time the activities of Naxalites were at peak in his area and the people belonging to high caste out of fear were not coming out of their houses. In the fardbeyan also it is stated that the deceased was killed by some Naxalites. Ram Jatan Rai (PW 2) in his cross - examination has stated that at the relevant time the activities of Naxalites were at peak in his area and the people belonging to high caste out of fear were not coming out of their houses. The case of appellants is that they have been falsely implicated in this case at the instance of Kapildeo Rat who was samadhi of Madan Rai and this relationship has been admitted by Madan Rat and other prosecution witnesses. About the enmity between appellants and Kapildeo the case of defence is that Chawkidar Bachan Yadav, brother of appellants Ganesh Yadav and Naresh Yadav, had lodged a sanha (Station Diary Entry) against Kapildeo Rat. Raja Singh (OW 1) in his evidence has stated that Kapildeo Rat had a dispute in respect of the land and Chawkidar Bachan Yadav had lodged the sanha in respect of this matter in the police station. He has produced the copy of sanha which is marked as Ext. A. The Court below has not considered this aspect of the matter and has observed that from Ext.-A no enmity is established between Kapildeo Rat and Madan Rat at one hand and the appellants at the other hand. In our view this finding of the Court below does not appear to be correct. The appellants had no enmity with the deceased and there was no occasion for them to commit his murder. On the other hand, the evidence on records show that the possibility of murder of deceased by Naxalites and thereafter the false implication of the appellants at the instance of Kapildeo Rai cannot be ruled out. The evidence of Ram Dhani Rai (PW 1), who is the father of deceased, that he did not want to lodge any case with police against the appellants for murder of his son is quite significant and very important. If he was told by the witnesses present at the place of occurrence where he had reached immediately after the occurrence that the appellant along with some others were responsible for the murder of his son it does not come to reason that why he did not want to lodge the case against the appellants. If he was told by the witnesses present at the place of occurrence where he had reached immediately after the occurrence that the appellant along with some others were responsible for the murder of his son it does not come to reason that why he did not want to lodge the case against the appellants. The non - examination of the previous I.O. who had started the investigation had also caused prejudice to the appellants because major contradictions in the, earlier statement of witnesses and in their evidence on which the defence has drawn their attention could not be brought on record. The Court below by simply observing that later on the investigation was entrusted to C.I.D. is a proof that the previous I.O. was not conducting the investigation properly has, perhaps, given its finding that the earlier statements of witnesses were not recorded properly by the first I.O. In our opinion merely on the ground that for some reasons subsequently investigation was handed over to C.I.D., will not itself be a proof that the previous I.O. was not conducting the investigation properly. It was the duty of prosecution to examine the first I.O. who had conducted the investigation upto a certain level and the prosecution would have left it for the Court to decide whether investigation conducted by him was proper or not. The statements of some of prosecution witnesses were recorded by second I.O. about eight months after the occurrence and in the case of some witnesses like Madan Rai about two years after the occurrence. To place reliance on such belated statements of the witnesses will not be safe. On the point of identification also we find that the prosecution witnesses have stated that when they saw the appellants coming to the place of occurrence and when they enquired from them the appellants themselves disclosed their identity. This evidence does not appear to be trustworthy. Had the appellants gone to commit murder of Awadhesh Rai they would have definitely tried to conceal their identification and would not have stated their names on being asked. 8. Considering the entire evidence on records we find that the case of prosecution suffers from material contradictions and improbability. We. Therefore, find that the prosecution has not been able to prove its case beyond all reasonable doubts against the appellants. 8. Considering the entire evidence on records we find that the case of prosecution suffers from material contradictions and improbability. We. Therefore, find that the prosecution has not been able to prove its case beyond all reasonable doubts against the appellants. The judgment and order of Court below on the basis of such type of evidence cannot be upheld. 9. In the result, this appeal is allowed and the appellants are acquitted. The judgment and order of the Court below is hereby set aside. The appellants, who are on bail, are discharged from their bail bonds. R.N.Prasad, J. 10 I agree.