ORDER B.N.P, SINGH.:-Shorn of details, basic facts essential for appreciation of appreciation of evidences laid. At trial can be capitulated with brevity. At about 10 a.m. on 12th July, 1979, it is alleged that while Kanu Yadav deceased, was harvesting crop from his field, which situates in khesre no.13343, along with his son Rami Yadav (P.W.8), and daughter Mana Devi (P.W. 6), appellants along with others came variously armed, when Suafilal (now dead) took Kanu Yadav to task for harvesting crop in his field. As Kanu Yadav reitereated his claim over the land for harvesting crop, Suafilal yadav exhorted his associates to eliminate him, when those, who were cutting crops, ran towards a canal, then some of the accused surrounded them from behind and some from front. Allegedly, then Sahdeo Mukhiya shot an arrow at stomach of Kanu Yadav when, the latter dropped beside the canal. When his family members were sprinkling water on his face for his consciousness, it was alleged that all who had come to the field, dealt blows with kicks and fists, as a result of which he eventually succumbed to the industries. Pursuant to this it was alleged that Suafilal again exhorted to kill Rami Yadav to, when Khattar safi (since dead) shot an arrow which hist on the left nand of Rami Yadav, and when he gan to run, Mushahr Yadav shot an arrow which pierced in his buttock. It was only on arrival of the villagers who flocked to the place of occurrence on alarm raised by them, that the accused persons made good their escape from the place of occurrence. 2. After the son of the deceased took recourse to public authority, a police case had been registered and investigation commenced, in course of which, statement of a number of witnesses were recorded by the Investigating Officer, who also visited place of occurrence, got seizure of arms and bamboo umbrella, from the place of occurrence, and on conclusion investigation, laid charge sheet before the Court. In the eventual trial, that commenced against 25 number of accused persons, state examined altogether nine witnesses, and it would seem that majority of them either turned hostile or were tendered by the State or were simply formal witnesses. As sitaram Yadav (P.W3) was a tendered, witness, there was nothing material in his evidence to merit consideration. In the eventual trial, that commenced against 25 number of accused persons, state examined altogether nine witnesses, and it would seem that majority of them either turned hostile or were tendered by the State or were simply formal witnesses. As sitaram Yadav (P.W3) was a tendered, witness, there was nothing material in his evidence to merit consideration. As for Siyalal Yadav (P.W.5) and Deo Narain Yadav (P.W.7), they had turned hostile to the State and their attention had been drawn to the early version rendered before the Police. Shiaram Prasad Sharma (P.W.9) was a formal witness who brought first information report on record. Besides this witness, the State also examined Tanki Devi (P.W.1 )and Mana Devi (P.W.6), daughters of the deceased, Bhayawati Devi (P.W.2) was the wife of the deceased, and Rami Yadav (P.W.8) who happens to be son of the deceased, was also a person who was maker of the fardbeyan. They projected themselves to be the ocular witness of the occurrence about killing of Kanu yadav, when Sahdeo Mukhiya shot arm in his abdomen and others dealt indiscriminate blows eith fists and slaps on his person. They also clamed themselves to be ocuia witness to the injury sustained by Rami Yadav at the hands of Khattar Yadav and Mushahar Yadav. The trial court on appreciation of evidence placed on the record, and also contentions raised at bar on behalf of defence though placed implicit reliance on testimony of other witnesses, discarded testimony of Mana Devi (P.W6), as though she was found to be a natural witness, she did not deserve credence, for her non-examination by the Investigating Officer. 3. The defence of the appellants before the court below and also this court had been denial of their complicity in the incident, and they reiterated their claim on the disputed land, for which land disputes had been persisting between the parties since last 20-25 years. Suggestions were given to the witnesses that Damodar Mandal, who happens to be son of accuse Nathu Mandal, had instituted a criminal proceeding against Kanu Yadav and others in the year 1973, bearing Complaint case No. 2960 of 1973, for which the instant proceeding had been initiated against them. Suggestions were given to the witnesses that Damodar Mandal, who happens to be son of accuse Nathu Mandal, had instituted a criminal proceeding against Kanu Yadav and others in the year 1973, bearing Complaint case No. 2960 of 1973, for which the instant proceeding had been initiated against them. It seems that based on the evidence placed on the record particularly that of the defence, for which one defence witness was examined, though the court below came to a conclusion that the appellants had right of private defence to property, found them answerable for accusations attributed to them, for having acted beyond right of private defence. 4. At the outset, lest we lose notice, we may state that Saufi Lal Yadav, Bhola Yadav and Khattar Yadav died during pendency of trial while Rasul Mian absconded and hence he could not be put on trial. Among the appellants, Khushilal Yadav and Nathu Mandal too died during pendency of appeal and as such the appeal as against them had abated. Trial court on appreciation of evidences and also contentions raised on behalf of defence, finding Sahdeo Mukhiya guilty under section 302 of the Indian Penal code (IPC) sentenced him to suffer rigorous imprisonment for life. The rest appellants too suffered conviction under section 302/149 IPC and they too were sentenced to same terms of Imprisonment. Among the appellants, 22 number of them suffered conviction under section 148 IPC for which they were sentenced to suffer rigorous imprisonment for two years. As for Mushahar Yadav, who was also tried for offence punishable under section 324 IPC, in premises of non-examination of doctor, he was acquitted of the charges. 5. For appreciation of the contentions raised at Bar on behalf of the appellants, we wish to begin our exercise with analysis of testimony of witnesses on whom trial court has placed explicit reliance in recording finding of guilt against the appellants in the manner stated above. As has been noticed earlier Rami Yadav (P.W.8), who happens to be the son of the deceased, was maker of farbdeyan and this witness while reiterating his early version rendered before the Police, would state about assemblage of 26 number of accused persons in the field where he along with his father and sister was harvesting crop in the field, appertaining to khasra no. 13343, total area of which was 11 kathas 11 dhurs of land and share of his father was in the middle of plot, comprising of 3 kathas 17 dhurs of land. Reiterating his early version, the witness would state that on exhortation made by Saufilal, when he along with his family members wanted to flee away, they were intercepted near the canal when it was Sahdeo Mukhiya who shot arrow on the abdomen of his father who dropped beside the canal, pursuant to which all those who had assembled there dealt fists and kicks on person of his father, who eventually succumbed to the injuries sustained by him. As for himself, the witness would state that on exhortation made by Saufilal and Chandradeo Yadav, while Khattar Yadav shot an arrow in his left hand, Mushahar pierced an arrow in his buttock, when he pulled out the arrow pierced in his buttock and threw it on the ground. The other arrow shot in his left hand was pulled out by the doctor in the hospital, who attended him. Though complicity of Mushahar yadav about causing injury to Agam Lal by arrow was conspicuously wanting in the first information report, that was sought to be introduced in the evidence of his witness. 6. We may switch over to the testimony of Tanuki Devi (P.W.1) and this witness out of 22 accused persons put on trial, named 21 of them. As for the sequence of events, the witness stated that it was pursuant to exhortation made by Saufi Yadav, that Shadeo Mukhiya shot an arrow in the abdomen of his father, pursuant to which all others dealt blows with fists and kicks on his person. As for injury sustained by her brother, witness states that while Khattar shot an arrow in his hand, Mushahar pierced arrow in his buttock. This witness too states about Agam sustaining injuries, but the assailant suggested by her was not Mushahar but Sahdeo Mukhiya. Needless to say that accusation about Agam sustaining injury by arrow by any of the appellants was conspicuously wanting in the first information report. This witness too states about Agam sustaining injuries, but the assailant suggested by her was not Mushahar but Sahdeo Mukhiya. Needless to say that accusation about Agam sustaining injury by arrow by any of the appellants was conspicuously wanting in the first information report. The other witness examined by the State was Bhayawati Devi (P.W.2) who happens to be the wife of the deceased and like other witness, she too states about assemblage of accused persons in the field when she claimed to have identified only 18 of them out of 22 accused persons put on trial. For the weapons held by them, narrations made by the witness was not in conformity either with earliest version of the State, or the narrations made by other witnesses. As for Saufilal, the witness states that he held arrow with him, though, in earliest version of the informant he was shown to have held sword with him. As for Chandradeo Yadav, the witness states that he too held sword, contrary to the earliest version of the prosecution, about this accused being armed with farsa. Though earliest version of the State about accused Bachchan was that he held badam with him, the witness stated about this accused to be with arrow. About accused Khattak, Rasool and Mushahar, the witness stated about arrow, held by them. If this witness is to be given any credence, it was Sahdeo Lal who shot arrow on her husband when he dropped dead. The witness further stated that accused Khattak shot an arrow on Rami and in the process of being chased, Mushahar too assaulted him. Laxman Yadav (P.W.4), son of the deceased, did not claim to be ocular witness to the incident. However, he was a witness to the seizure of arrow and bamboo umbrella from the place of occurrence by the Investigating Officer, and as for the incident, he states to have learnt from his mother and sister that while his father was shot by arrow by Sahdeo Mukhiya, it was Khattak and Mushahar who had shot arrow on his brother. This is all the evidence that has been adduced on behalf of the State. 7. This is all the evidence that has been adduced on behalf of the State. 7. Manifold contentions were raised at Bar on behalf of the appellants to assail the finding recorded by the court below, and the learned counsel would draw our attention to paragraph 16 of the judgment and it is urged that though the court below had recorded an explicit finding that the disputed land happened in possession of the appellants, yet it rushed to erroneous conclusion that the appellants had acted beyond right of their private defence of property in executing killing of Kanu yadav. Reiterating his submission. learned counsel would urge that since the disputed land belongs to the appellants and it was in their possession, right of private defence of property was very much with them, and if at all accusations attributed to the appellants are found to be true, they were protected by the right of private defence available to them. As for non-examination of the doctor, learned counsel would urge that though Mushahar Yadav was acquitted by the trial court on account of non-examination of the doctor under section 324 IPC, on the same analogy, Sahdeo Mukhiya who had been saddled with the allegation of killing Kano Yadav by shot or an arrow and the other appellants by their alleged act, should have been given same rational treatment for arriving conclusion. Yet it is urged that for non-examination of the doctor, neither Sahdeo Mukhiya who was suggested to be author of injuries of the deceased, nor other appellants, who were suggested to have dealt blows on him, can be found answerable for the accusation attributed to them, as it was only doctor who could have rendered assistance to the Court to arrive at a conclusion about nature of injuries sustained by the deceased and also Rami Yadav, with the weapon with which they were suggested to have been assaulted by the appellants. 8. Contentions are raised that once accusations against Sahdeo fails on this score, the charge of other appellants acting with common object would consequently lose its significance. Non-examination of the Investigating Officer was also taken to be a ground to as the finding recorded by the court below, as that has prejudiced the defence. 8. Contentions are raised that once accusations against Sahdeo fails on this score, the charge of other appellants acting with common object would consequently lose its significance. Non-examination of the Investigating Officer was also taken to be a ground to as the finding recorded by the court below, as that has prejudiced the defence. Contentions are raised that though attention of the witnesses had been drawn by the defence towards their early version, but since the Investigating Officer was not examined, these contradictions could not be placed on the record. 9. As has been the evidence of Rami Yadav (P.W.8), the disputed land happened to be ancestral property and the sharers were Santoshi Gope, Bhaiyao Yadav and Hiya Gope. Bhaiyo Yadav had only one daughter who was married to Gangai Yadav and Sitaram Yadav happened to be the son of said Gangayi Yadav. As for Hiya Yadav, he was survived by Rasiklal and Budhu Yadav. The witness states that Bhaiyo Yadav had alienated his entire property to Sitaram Yadav and said Sitaram Yadav executed a deed of sale in respect of two bighas of land to Saufilal Yadav. Said Saufilal Yadav had also instituted a Title Suit against Rasik Lal who happened to be his uncle. His uncle was litigating for the land with Chandradeo Yadav since 25 years, that the incident took place which was a fallout of the previous animosity. 10. Now analysing the merit of the evidence of individual witness, we find that Tanuki Devi (P.W.1) projected herself to be an ocular witness. She was not suggested to be an eye witness in the first information report though she too claimed to have been harvesting the crop from the field. She could not say as to which part the crop was being harvested. She did not state about height of the crop which was being harvested by them. As for the place, where her father dropped dead, the witness states that he dropped dead in the field itself and this part of the narration made by the witness runs counter to the version of other witnesses who stated that shortly after they were chased, the deceased sustained injuries by shot of an arrow, when they went near the canal. Though Lakshman Yadav (P.W.4) himself did not claim to be among those who were harvesting the crops in the field, he being not present in the village that day, Tanuki Devi in her anxiety to lend assurance to the prosecution allegation, stated about Lakshman yadav too harvesting crop with them. In view of infirmity that has crept in the evidence of this witness, she did not appear to be truthful, though she made all endeavours for projecting herself to be an eye witness. 11. As for Bhagyawati Devi (P.W.2), who happens to be wife of the deceased, apart from the fact that she named only 18 number of accused persons, narrations made by this witness about weapon held by the appellants was not consistent, as has been noticed earlier. As for the assailant of the deceased, she says , as we have noticed earlier, it was Santoshi Lal who shot an arrow on her husband which runs counter to the earliest version of the State about Sahedeo to be the author of the injuries sustained by Kana yadav. This witness too states that her husband dropped dead in the field itself on receipt of injury by shot of arrow. About injuries sustained by her husband and her son, the witness states about the incident taking place inside the field itself and this narration too runs counter to the earliest version of the State. This witness was not in a position to say as to how many of them and which of them had shot arrow. Attention of this witness was drawn by the State about major part of her evidence not only with regard to tile complicity of Pulkit Yadav, Chhotkan Yadav, Jagdish Yadav, Badri Yadav, Manti Yadav, Basanti Yadav, Subhasi, Chattu, Nathuni, Bouku, Bhuchai, Bhusdari, and Sahdeo Mukhiya, but also about weapons held by them. Though attention of this witness had been drawn on material particulars or the case of the defence, as we have noticed, Investigating Officer has not been examined, and hence contradictions could not be placed on the record and the credibility of this witness as such remains open to question. Though attention of this witness had been drawn on material particulars or the case of the defence, as we have noticed, Investigating Officer has not been examined, and hence contradictions could not be placed on the record and the credibility of this witness as such remains open to question. As for Rami Yadav, as he was maker of the fardbeyan, though he stated to have been hospitalised for ten days pursuant to injuries sustained by him, no evidence of credible nature was, placed on the record to persuade the court to believe either about injuries sustained by these witness or his hospitalisation for ten days. None of the doctors, who held autopsy over the dead body of Kano yadav or who examined the injured witness, were examined at trial. To crown all, the State counsel adopted a casual approach to the case as neither post mortem report nor injury report was placed on the record, and in absence of these documents, which could have been of clinching nature, it was difficult to place implicit reliance on the witnesses about injury sustained by them, particularly when the doctor, who had examined them, had rot been examined, in case of Mushaharu Yadav too, the trial court had taken a rational view by exonerating him of the charge under section 324 IPC. However, the said rational was not applied in the case of other appellants who were suggested to be authors of the injuries attributed to them. Since principal charge against Sahdeo Mukhiya on these premises and also in view of infirmity that has crept in the evidence of the prosecution witnesses would fail, rightly charge about other appellants sharing common object would also vanish. 12. Having given our deepest consideration to the evidences placed on the record and also the facts and circumstances of the case, we find that the findings recorded by the court below cannot be sustained. Accordingly, all the three appeals are allowed, and findings and order of sentence passed against the appellants are set aside and the appellants are acquitted of the charges. Since appellant Sahdeo Mukhiya is in custody, he is directed to be realeased forthwith, if not wanted to be detained in any other case. Others are discharged from the liability of the bail bonds.