Judgment : LAKSHMAN URAON, J. ( 1 ) THIS Criminal Appeal has been directed against the judgment and order of conviction and sentence dated 12/3/1992 and 13/3/1992 respectively, passed by Smt. Shakuntala Sinha, 7th Additional Judicial Commissioner. Ranchi, in Session Trial No. 369 of 1986, whereby and where under, all the appellants have been convicted under Section 302/149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. Appellants Balak alias Balkaha Mahto alias Chandra Mohan Mahto and Harihar Mahto have further been convicted under Section 148 of the Indian Penal Code whereas appellant Darwari (since dead) has been convicted under Section 147 of the Indian Penal Code. However, no separate sentence has been awarded for the offences under Section 147 and 148 of the Indian Penal Code. All the appellants have further been imposed a fine of Rs. 2,000/- each and in default of payment to undergo rigorous imprisonment for one year each. ( 2 ) THE prosecution case, in brief, is that while the informant Kalia Mahto PW 1 inside his house in the evening of 22nd November, 1986 at about 7. 00 p. m. his door was knocked, saying that they are guests and are in search of a road, they asked to lead them by opening the door. Jagarnath Mahto (brother of the informant) opened the door and came out of the home, followed by his brother Panchhi Mahto and the informant. As soon as they came out of the house, appellant Darwari Mahto ordered Ab Ka Dekhat Barat, on which appellant Balak alias Balkaha Mahto and Harihar Mahto, having Dawli in their hands, rushed there along with 5 to 6 unknown persons, who were standing at some distance from the door. The informant, out of fear, entered inside his house. But the appellants along with 5 to 6 unknown persons chased Jagarnath Mahto and Panchhi Mahto towards east of his house. The informant and his family members raised hulla but none of the villagers came there to rescue. The informant and his wife (Nirobala Devi, PW 4 ) as also Asha Devi (PW 5-wife of Panchhi Mahto) then went towards the place where Jagarnath Mahto and Panchhi Mahto were chased, taking lantern in their hands. They saw that both Balkaha and Harihar were assaulting Panchhi and Jagarnath with Dawli on their heads and necks, on the Lalkar of appellant Darwari Mahto. They saw that both Balkaha and Harihar were assaulting Panchhi and Jagarnath with Dawli on their heads and necks, on the Lalkar of appellant Darwari Mahto. The other unknown persons had caught hold of both Panchhi and Jagarnath. The alleged assault took place at Rakha-Chatra place. Both Panchhi and Jagarnath Mahto were done to death at that very place, after some time villagers went there, who were informed about the alleged occurrence. The alleged occurrence took place only due to previous enmity regarding the cases, pending in between them. ( 3 ) THE learned Court below framed charges against the appellants for the offences, as mentioned in paragraph No. 1 and all the appellants pleaded themselves not guilty. In course of their examination, they have taken, plea that Dharm Nath Mahto son of appellant Darwari Mahto and father of Harihar Mahto was murdered by Jagarnath, Panchhi ad Kalia, All these appellants were prosecution witnesses in that murder case of Dharam Nath Mahto, in which Jagarnath, Panchhi and Kalia were accused for the offence under section 3. 02 of the Indian Penal Code. They have taken plea that due to that enmity, they have falsely been implicated in this case. They have also taken plea that the nephew of the informant Kalia Mahto and deceased Jagarnath and Panchhi namely. Sunder Mahto DW 1 has not been examined as prosecution witness, as he did not speak a lie. On the other hand, he has been examined as DW 1 to speak the truth. ( 4 ) THE learned Court below after hearing the parties and considering the evidences, oral and documentary convicted all the appellants for the offences under section 302/149 as also 147 and 148 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for life under Section 302/149 of the Indian Penal Code and also imposed a fine of Rs. 2000/- against each of the appellants. ( 5 ) THE appellants aggrieved by the said judgment and order of conviction and sentence, have preferred this appeal with a prayer to set aside the impugned order under appeal and set them at liberty, after acquitting them. ( 6 ) IN course of arguments, it was submitted that appellant Darwari Mahto, father of Harihar Mahto, had since died and hence appeal against him stood abated. ( 6 ) IN course of arguments, it was submitted that appellant Darwari Mahto, father of Harihar Mahto, had since died and hence appeal against him stood abated. ( 7 ) THEREFORE, the only point for consideration is as to whether the conviction and sentence, passed against the remaining two appellants, namely. Balak alias Balkaha Mahto alias Chandra Mohan Mahto and Harihar Mahto, can be sustained. ( 8 ) IN the preset case. I find that the alleged occurrence took place in the month of November i. e. 22/11/1986 at about 7. 00 p. m. It was a dark night, although some witnesses have contradicted it saying that it was moon lit night. All the villagers were in their home. It is alleged that at about 7. 00 p. m. all the three appellants came to the door of the informant. The door was knocked by one baby, set up by Darwari Mahto, as deposed by PW 5 (Asha. Deviwidow of Panchhi Mahto), in paragraph No. 6. She has also deposed that appellant Darwari Mahto had mask on his face. It has further been stated that on knocking of the door. Jagarnath Mahto and Panchhi Mahto came out of the door. They were surrounded by 15/16 persons, as deposed by the informant PW 1, his wife PW 4 and wife of deceased Panchhi Mahto PW 5, on the other hand, the infermant Kalia Mahto in the First Information Report has rpentioned that only 5 to 6 persons surrounded them. On the Lalkar of Darwari Mahto, since dead, both the appellants, namely, Balak alias Balkaha and Harihar, including other unknown person. surrounded Jagarnath and Panchhi and chased them. Both Jagarnath and Panchhi fled away towards the field of Basudeo. It is alleged the in the field of Basudeo, which is a paddy filed and Sarso field, both of their were assaulted by the persons, who had surrounded them, resulting in their death at two places. The distance in between the, two places where the dead bodies of Jagarnath Mahto and Panchhi Mahto were found, has also been given contradictory evidence has been given regarding the distance as to whether it was 100 ft. or 100 Gaj. or 1000 ft. or 2 Bighas of land. The distance in between the, two places where the dead bodies of Jagarnath Mahto and Panchhi Mahto were found, has also been given contradictory evidence has been given regarding the distance as to whether it was 100 ft. or 100 Gaj. or 1000 ft. or 2 Bighas of land. ( 9 ) PW 4 (Nirobala Devi), PW 5 (Asha Devi) and PW 1 (Kalia Mahto) have stated that both the deceased had taken their meals in between 10 to 12 hours (daytime) and had gone to harvest the paddy crops. The alleged occurrence took place at about 7. 00 p. m. PW 7 (Dr. D. K. Dheeraj), who conducted the post mortem examination on the dead bodies of Jagarnath and Panchhi on 24/11/ 1986, at about 11. 00 a. m. and 12. 15 p. m. respectively and submitted his report (Exts. 4 and 5 respectively), has found six incised injuries on the person of Panchhi Mahto, all caused by sharp cutting weapon, may be Dawli and the time elapsed since death was 36 (+) (-) 12 hour from the date and time of post mortem examination. He also found incised wounds (18 in number) on the person of Jagarnath Mahto, all caused by sharp cutting weapon, may be by Dawli, and the time elapsed since death was 36 (+) (-) 12 hours from the date and time of post mortem examination. On dissection, the doctor found that stomach was half full with semi digested rice of both the deceased. He has stated that they (both the deceased) might have taken their rice 1-1/2 to 2 hours prior to their murder. ( 10 ) AS the defence has not denied the death of Jagarnath and Panchhi, caused by sharp edged cutting weapon. I do not discuss the injuries in detail, which were numerous on the person of the deceased. But the defence has challenged that as alleged about the time of murder, it was not the time of 7. 00 p. m. on 22/11/1986 regarding their murder, caused by these appellants. It was argued that if they were done to death at 7. 00 p. m. , then they must have taken their meals latest in between 4. 00 to 5. 00 p. m. so that the doctor would have found semi-digested half full rice in the stomach of both the deceased. It was argued that if they were done to death at 7. 00 p. m. , then they must have taken their meals latest in between 4. 00 to 5. 00 p. m. so that the doctor would have found semi-digested half full rice in the stomach of both the deceased. ( 11 ) ON the other hand, the witnesses, namely, informant Kalia Mahto PW 1 in paragraph No. 5 has stated that he alongwith Jagarnath Mahto and Panch hi Mahto, who are joint in mess also, had taken their meal at about 10. 00 a. m. Thereafter, they had not taken their meal in the evening till 7. 00 p. m. PW 4 (Nirobala Devi), wife of the informant Kalia Mahto PW 1, has also stated at about 7. 00 p. m. on that evening she was in the Dheki house, when she heard sound from the outside. She has also stated that by that time none had taken the meal. Asha Devi widow of Papchhi Mahto (deceased) was also in the kitchen, cooking the food at about 7. 00 p. m. on that eventful evening. She has also stated that her husband and other family members had not taken meal by that time. On the other hand, she has also stated in paragraph No. 4 that her husband and Jagarnath had taken food in between 10 a. m. to 12 noon and thereafter, they went to the field to harvest the paddy crops. ( 12 ) THUS, the oral evidence and the medical evidence i. e. the evidence of the doctor PW 7 gives a contradictory opinion, which creates doubt in my mind as to whether Jagarnath Mahto and Panchhi Mahto were murdered at 7. 00 p. m. in the evening on that day or not. The post mortem reports (Exts. 4 and 5) show that the doctor has given the time of death 36 hours prior to the time of his examination on the dead bodies on 24/11/1986. If it is calculated, the time alleged murder in the evening of 22/11/1986 at about 7. 00 p. m. is not supported by the oral evidence,. Moreover if both the deceased had taken their meal in between 10 to 12 noon and had gone to the paddy field to harvest the paddy crops, then by that time I. e. 7. If it is calculated, the time alleged murder in the evening of 22/11/1986 at about 7. 00 p. m. is not supported by the oral evidence,. Moreover if both the deceased had taken their meal in between 10 to 12 noon and had gone to the paddy field to harvest the paddy crops, then by that time I. e. 7. 00 p. m. their stomachs must have been fully empty, without any semi digested food. On the other hand the doctors has found half-full stomachs with semi-digested food, which shows that the murder was not taken place at 7. 00 p. m. on 22/11/1986. This also creates doubt in my mind regarding the time of the alleged murders of Jagarnath Mahto and Panchhi Mahto. ( 13 ) NOW I take up the issue as to whether the First Information Report (Ext. 7),. which is the statement of Kalia Mahto PW 1, recorded on 23/11/1986 in the morning at 9. 00 a. m. is the actual information, which is said to be the First Information Report in the present case. Informant Kalia Mahto PW 1 stated that when he went to the police station to lodge the information, then prior to his arrival at the police station, all the three appellants (accused) were put in Thana Hazat, as stated by him in paragraph No. 8. He has further stated that prior to his arrival at Thana, Dhani Ram Mahto PW 2 had informed the police at the Thana. Alongwith Dhani Ram Mahto PW 2 another witness Sudar Mahto DW 1 and also gone to the Police Station. Sudar Mahto has been examined as DW 1. They had left for the Police Station in the next morning I. e. 23/11/1986, at about 5. 00 a. m. PW 2 Dhani Ram Mahto has stated that in the morning on Sunday i. e. 23/11/1986 Sudar Mahto DW 1 informed that both his brother- in-laws (Salas), namely, Jagarnath Mahto and Panchhi Mahto, were done to death. He had not informed about the names of the assailants. This witness PW 2 sent the Chowkidar Podhia Bhokta PW 8 to watch the dead bodies and he proceeded for Angara Police Station. He informed the Officer-in-Charge about the murder of Jagarnath Mahto and Panch hi Mahto of Villager Chhotaki Gorang. He had not informed about the names of the assailants. This witness PW 2 sent the Chowkidar Podhia Bhokta PW 8 to watch the dead bodies and he proceeded for Angara Police Station. He informed the Officer-in-Charge about the murder of Jagarnath Mahto and Panch hi Mahto of Villager Chhotaki Gorang. At that very moment the Officer-in-Charge informed Dhani Ram Mahto that the murderers have already been arrested and are in the Thana Hazat. He was just in search of a vehicle to proceed to the place of occurrence village. This witness PW 2 alongwith the officer-in-charge went to the Village Chhotaki Gorang where the officer-in-Charge was informed by Kalia Mahto PW 1 that his brothers Jagarnath Mahto and Panchhi Mahto were murdered by appellants Darwari, Harihar and Balak alias Balkaha. He also informed that there were unknown persons also, whom he could not identify. DW 1 (Sudar Mahto) had stated that Kalia, Jagarnath and Panchhi are his uncles. Jagarnath and Panchhi were murdered. He was informed about their murder by Kalia Mahto PW 1 but he had not informed him as to who caused murder. Kalia had asked this witness to inform Dhani Ram Mahto (Mukhia of the Village in the next morning about 4. 00 a. m. Prior to the information, given by PW 1 Kalia Mahto, this witness DW 1 had met with the wife of Panchhi Mahto, namely, Asha Devi (PW 5 ). She had also not disclosed him as to who caused the murder of her husband and Jagarnath. In that very morning he informed Dhani Ram Mahto (PW 2) about the occurrence, who went to the Police Station at 8. 00 a. m. and came back with the polict!. At the village also no one informed about the name of the murderers. ( 14 ) IN view of the above considered evidence, which is the evidence of the informant Kalia Mahto PW I, his nephew Sudar Mahto DW 1 and Dhani Ram Mahto PW 2, brother-in-law of the informant and deceased, I find that before lodging information to the Police Station by PW 1 or PW 2 or DW 1, the assailants were already apprehended by the police and were kept in Thana Hazat. It was also submitted that due to non-examination of the Investigating Officer. It was also submitted that due to non-examination of the Investigating Officer. the actual First Information Report is not brought on the record, PW 9 (Umesh Prasad Sharma), Writer Constable of Angara Police Station, only produced S. D. Entry No. 492 dated 23/11/1986, marked TX for identification. PW 10 (Jagarnath Ram ). Constable No. 46, has proved the said S. D. Entry, which was written by the S. I. Badri Narayan Singh (Ext. 6), PW 11 (Sachidanand Mishra ). Constable No. 53, has also simply proved the formal First Information Report in the pen and signature of A. K. Yadav, Officer-in-Charge of Angara Police Station (Ext. 7 ). He has also proved the inquest report in the pen and signatures of Suresh Prasad Singh. S. I. , Angara Police Station (Exts. 8 and 8/1 respectively ). He has also proved the seizure list of blood stained soils prepared by Suresh Prasad Singh, the then Inspector of Police, Angara Police Station (Ext. 9 ). ( 15 ) THUS, in absence of examination of the Investigating Officer, I could not ascertain as to which is the First Information Report in this case. Prior to the information, given by PW 1 (Kalia Mahto), PW 2 (Dhani Ram Mahto) and PW 5 (Asha Devi-wife of Panchhi Mahto) have stated that information was already given to Police Station. Hence the Statement of PW 1 (Kalia Mahto), recorded in Village-Chhotaki Gorang on 23/11/1986 at 9. 00 a. m. (Ext. 7), is not the First information Report in the eye of law, as the Officer in-Charge, Angara Police Station, had already taken steps for arresting all the appellants in connection with the murder of Jagarnath and Panchhi, although at that time none had disclosed the names of their murderers. There is simply S. D. Entry proved by formal witness. Therefore, this First Information Report creates doubt as to whether besides three appellants there were 5 to 6 unknown persons or as deposed by the interested witnesses, namely. PW 1, 2, 4 and 5, there were 15 to 16 unknown persons. ( 16 ) NOW I take up as to whether the story as given in the First Information Report is believable regarding the identification of the assailants. PW 1 (informant-Kalia Mahto) has stated that he along with his wife Nirobala Devi PW 4 and widow of the Panchhi Mahto PW 5 namely. ( 16 ) NOW I take up as to whether the story as given in the First Information Report is believable regarding the identification of the assailants. PW 1 (informant-Kalia Mahto) has stated that he along with his wife Nirobala Devi PW 4 and widow of the Panchhi Mahto PW 5 namely. Asha Devi, followed Jagarnath and Panchhi, they have deposed that there were 15 to 16 unknown persons, who had not covered their faces with mask, although the First Information Report is only regarding presence of 5 to 6 unknown persons Interested witnesses, namely PWs 1, 4 and 5, have state that appellants Dali van, Balak Balkaha and Harihar, chased Jagarnath and Panchhi. Prior to their chasing, 15 to 16 unknown persons had surrounded Jagarnath Mahto and Panchhi Mahto. Thereafter, these witnesses i. e. PW s 1, 4 and 5 taking lantern, followed them. All these three interested witnesses have admitted enmity as the informant and both the deceased were accused under Section 302 of the Indian Penal Code in the murder case of Dharm Nath Mahto, who was son of appellant Darwari Mahto, and father of appellant Harihar Mahto. In course of evidence, it has come that in that case the accused were convicted and they have preferred appeal, which is pending before this Court. All the three interested witnesses have stated that all the three appellants assaulted both Jagarnath Mahto and Panchhi Mahto with Dawli. They have further stated that they (Jagarnath and Panchhi) were surrounded by 15 to 16 unknown persons and within their boundary the appellants assaulted them. The aforesaid witnesses were outside the boundary of those unknown 15 to 16 persons. Even though they claimed that in the light of lantern they identified the assailants. They could identify only three appellants and none else, who had surrounded Jagarnath Mahto and Panchhi Mahto. PW 1 Kalia Mahto has stated that all the persons, who. could not be identified, numbering 15 to 16, were also armed with Dawli and Lathi. On the other hand, his wife PW 4 and the wife of deceased Panchhi Mahto PW 5 have stated that those unknown persons had torches of 5 cell in their hands. PW5 4 and 5 have deposed that the persons, who have surrounded Jagarnath Mahto and Panchhi Mahto, assaulted both Jagarnath and Panchhi. On the other hand, his wife PW 4 and the wife of deceased Panchhi Mahto PW 5 have stated that those unknown persons had torches of 5 cell in their hands. PW5 4 and 5 have deposed that the persons, who have surrounded Jagarnath Mahto and Panchhi Mahto, assaulted both Jagarnath and Panchhi. Both the injured fell on being assaulted but their dead bodies were found at different places; some witness says that it was 100 ft. , some says that it was 1000 ft. and some witness says that it was 500 yards. If it is assumed that these appellants assaulted both Jagarnath and Panchhi, then it is only possible when both Jagarnath and Panchhi were standing at a central place, surrounded by 15 to 16 unknown persons. PW 1 Kalia Mahto has stated that it was dark night whereas his wife PW. 4 (Nirobala Devi) has stated that it was. moon lit night, PW 2 Dhani Ram Mahto, who is brother-in-law (Sala) of both the deceased, has stated that both the dead bodies were at different places: one was inthe paddy field and the other was in the Sarson field. There is distance of 500 yards in between both places where the dead bodies were found. The Investigating Officer seized blood stained soils from these places, which proves that both the dead bodies were not even at one place and, as such, the same belies the statements of the interested witnesses, namely, PW5 1, 4 and 5 that both the appellants assaulted with Dawli one after another where after they fell down. PW 4 (Nirobala Devi-wife of Kalia Mahto) has stated in paragraph No. 4 that she could not identify those 15 to 16 persons, who had surrounded Jagarnath and Panchhi, having torches in their hands. In paragraph No. 4 she has stated that those persons, who had surrounded Jagarnath and Panchhi. Assaulted them PW 4 in paragraph No. 7 has again stated that the appellants Harihar Mahto. Darwari Mahto and Balka Mahto had raised alarm of Bachao Bachao but the persons, who had surrounded, assaulted Panchhi Mahto and Jagarnath Mahto, who fell down and died. All the interested witnesses, namely, PW5 1, 4 and 5 are closely related. Even then they left the dead bodies in the field and returned home in the night. Darwari Mahto and Balka Mahto had raised alarm of Bachao Bachao but the persons, who had surrounded, assaulted Panchhi Mahto and Jagarnath Mahto, who fell down and died. All the interested witnesses, namely, PW5 1, 4 and 5 are closely related. Even then they left the dead bodies in the field and returned home in the night. PW 5 Asha Devi, widow of Panchhi Mahto, has stated that they were 300 ft. behind the persons, who chased her husband Panch hi Mahto and Jagarnath Mahto (Bhaisur), even then they claimed to, have identified the assailants, although they were outside the boundary of 15 to 16 persons. PW 8 (Pothiya Bhokta) has stated that when asked by Dhani Ram Mahto PW 2, he went to guard the dead bodies. He has stated that both the dead bodies whe lying near their house. ( 17 ) IN view of the above considered facts. I come to the conclusion that in absence of examination of the Investigating Officer, the appellants have been prejudiced as they could not draw contradiction about the place of occurrence as to whether it is near the house of the deceased, as deposed by PW 8 (Pothiya Bhokta) of it is the paddy field or Sarson Field of Basudeo Mahto or it is the ditch or Tand of the field of Basudeo Mahto. It is also not clear whether the distance of the places where the dead bodies were found is 100 or 500 yards or there is a distance of 2 Bighas of land as stated by different witnesses. The Investigating Officer has seized the blood stained soil from the place where the dead bodies of Jagarnath Mahto and Panchhi Mahto were lying. He has not been examined and. therefore, it is not clear from where he seized the blood stained soil and prepared the seizure list on which the witnesses signed. Regarding identification. I have already discussed above that PW 1 (Kalia Mahto ). PW 4 (Nirobala Devi-wife of the informant) and PW 5 (Asha Devi wife of the deceased Panchhi Mahto) followed the assailants taking lantern in their hands. They were 300 away from the boundary of 15 of 16 unknown persons. Regarding identification. I have already discussed above that PW 1 (Kalia Mahto ). PW 4 (Nirobala Devi-wife of the informant) and PW 5 (Asha Devi wife of the deceased Panchhi Mahto) followed the assailants taking lantern in their hands. They were 300 away from the boundary of 15 of 16 unknown persons. They claimed to have identified only the appellants with whom there is enmity regarding criminal cases, pending against the informant and others, regarding murder of Dharm Nath Mahto son of Darwari Mahto (appellant) and father of Harihar Mahto (appellant ). This is thereason that the interested witnesses could identify even Darwari Mahto, who had covered his face with mask. On the other hand, they could not identify the unknown persons, who were 15 to 16 in number or 5 to 6 in number, who had not covered their faces. They also claimed that all the unknown persons had torches in their hands. On the other hand. PW 1 (informant-Kalia Mahto) has stated that they had Dabia and Lathi in their hands. All these contradictory statements of interested witnesses create a doubt in my mind as to whether actually they could see the assailants or not. That is why the First Information Report might have been lodged against the unknown persons but the officer-in-charge, Angara Police Station, took action after entering S. D. Entry and had also apprennended all the three appellants by night itself before any information was lodged to him by the informant (PW 1 Kalia Mahto) or Dhani Ram Mahto PW 2. On the other hand. DW 1 (Sardar Mahto) has deposed that he was never informed about the names of the assailants. He informed Dhani Ram Mahto, who in his turn, went to the Police Station to inform the police about the alleged murder. ( 18 ) IN view of the above considered facts, evidence and circumstances of the case. I find that the prosecution has examined only the interested witnesses, namely PW5 1, 4 and 5, who have given contradictory statements, regarding the manner of the alleged occurrence, place of the alleged occurrence and also identification of the appellants as doubtful, as it seems that they could identify the appellants only due to enmity as they were witnesses against these appellants in a murder case of Dharm Nath Mahto son of appellant Darwari Mahto and father of Harihar Mahto, as mentioned in previous paragraph. I, thus, find that the prosecution case is full of doubts on all the points Le. regarding First Information Report, place of occurence, manner of occurrence, identification and taking food or rice by the deceased prior to their murder. In view of these considered facts I find and come to conclusion that the judgment and order of conviction and sentence, passed by the learned trial Court can not be sustained. The accused/appellants must get benefit of doubt under the facts and circumstances as also evidences, discussed above. ( 19 ) IN the result, this Criminal Appeal is allowed and the judgment and order of conviction and sentence, passed by the Court below, is hereby set aside. Since both the appellants are on bail, they are discharged from liabilities of their bail bonds. Appeal allowed. --- *** --- .