JUDGMENT : Lakshman Uraon, J.-Being aggrieved by and dissatisfied with the judgment and order of conviction and sentence passed against all these appellants under Sections 148, 302/149 and 436/149 of the Indian Penal Code, sentencing them to undergo imprisonment for life under Section 302/ 149 of the Indian Penal Code, to undergo rigorous imprisonment for five years under Section 436/149 of the Indian Penal Code and further to undergo rigorous imprisonment for one year under Section 148 of the Indian Penal Code, directing all the sentences to run concurrently, they have preferred this appeal with a prayer to set aside the impugned judgment and order of conviction and sentence dated 5.9.2000, passed by the learned Sessions Judge, Singhbhum West at Chaibasa, in Sessions Trial No. 123 of 1993. 2. The prosecution case, based on the Fard-beyan (Ext.2) of the informant Sona Ram Gape (P.W. 6), recorded by S.I. Anil Kumar Mahuwar, Officer-in-charge, Mofassil Police Station, on 26.12.1991 at 13.30 hours at Village-Putida, Tola Kandangbasa, is that on 26.12.1991 in between 10 to 11 a.m. he was studying in his home. His mother Smt. Pan Mati Kui (P.W. 3), sister Hesai Purti (P.W. 5) and father Pandu Gape (deceased) were also there in the house. His father Pandu Gape was likely to go to join his duties at Sasaram, as he was serving in B.M.P.-16 having retired from Military service. All of a sudden at about 12 noon, 70-80 villagers of Villages-Sara Guntia, Chhota Guntia and Kotro Guttu, surrounded his house, armed with Lathi, bows, arrows, Farsa, axe, Garsa and sword. They were asking to catch hold both father and son to kill them and also to set their house on fire. On hearing the alarm, when Pandu Gope came out of his house, Toka Sura Purti, Dobo Tiu, Chumru Tiu, Juria, Hungari Kundai Suru, Mano Purti, Naranga alias Suresh Purti, Suresh Purti (Mukhia), Galu Purti, Dumbi Tiu and Nara Purti, all of Village-Sara Guntia, Muchru and others of Village-Chhota Guntia caught hold Pandu Gope and assaulted him with lathi, Garasa, axe (Tangi) and bows. Pandu Gope (father of the informant) died at the spot. When his mother, sister and younger brother saw the assailants assaulting his father, then out of fear they fled away. The informant concealed himself by closing the doors of his home from inside. Some assailants entered into his house and damaged the house-hold articles. Pandu Gope (father of the informant) died at the spot. When his mother, sister and younger brother saw the assailants assaulting his father, then out of fear they fled away. The informant concealed himself by closing the doors of his home from inside. Some assailants entered into his house and damaged the house-hold articles. They were also hammering the doors which the informant had bolted from inside. When he did not open the door, then the assailants ordered to set his house on fire so that he may die due to burning. They set the doors, clothes, bamboos and tiles on fire and left the house, raising slogans that the informant will die due to burning in his house. The cause of the alleged occurrence, as stated by the informant, is that on Tuesday i.e. 24th December, 1991 in the evening, by the side of the road of the village, Smt. Laxmi Kundal Suru of Village-Mouzodia was selling rice-beer (Haria.) Motka Honhaga, husband of Laxmi Kundal Suru, Nirmal Jorika and Kubi Kundal Suru of village Mouzodia were standing there. At that time Jaina Nayak of Village-Sara Guntia went there to drink Haria. On demand of Haria, Smt. Laxmi Kundal Suru informed that Haria was no more and she was proceeding to her home. Then Jaina abused Laxmi. Husband of Laxmi Kundal Buru when objected, then he threatened them to shoot and kill. In the meantime, Pandu Gope (father of the informant asked Jaina Nayak not to act in such way whereupon Pandu Gope was also abused. Pandu Gope slapped once to Jaina Nayak. Thereafter, Jaina Nayak left that place, threatening that he and his son both will meet with dire consequences. All of them disbursed from that place for their respective homes. 3. When the villagers of three villages had surrounded the house of the informant and the house was burning, at that time police went there. Then the informant came out. Even the assailants rushed to assault the informant but the police rescued him. The police also extinguished the fire and thereby saved other house-hold articles from burning and also saved the life of the informant. 4. The prosecution examined altogether seven witnesses to bring home the charges, levelled against the accused (appellants). P.W. 1 Dr. Yogendra Singh conducted the post-mortem examination on the dead body of Pandu Gope and prepared Post Mortem Report (Ext. 4. The prosecution examined altogether seven witnesses to bring home the charges, levelled against the accused (appellants). P.W. 1 Dr. Yogendra Singh conducted the post-mortem examination on the dead body of Pandu Gope and prepared Post Mortem Report (Ext. 1) in his pen and signature. P.W.2 Passing Ban Singh, a formal witness, has proved the Fard-beyan (Ext.2) in the pen and signature of Anil Kumar Mahuwar, Officer-incharge of Mofassil Police Station. P.W.3 Smt. Pan Mati Kui is the wife of deceased Pandu Gope. P.W. 4 Shankar Lal Chirania, another formal witness, has proved the seizure list (Ext. 3) in the pen and signature of Anil Kumar Mahuwar. P.W. 5 Hesai Purti is the daughter of deceased Pandu Gape. P.W. 6 Sona Ram Gope, son of the deceased, is the informant in this case and P.W. 7 Anil Kumar Mahuwar is the Investigating Officer in this case, who has proved the formal First Information Report (Ext. 4) and inquest report (Ext. 5). 5. Learned Sessions Judge having relied on the evidence of eye witnesses i.e. informant Sona Ram Gope (P.W. 6) his mother Smt. Pan Mati Kui (P.W. 3) and sister Hesai Purti (P.W. 5) and considered the evidences of P.W. 1 Dr. Yogendra Singh and the 1.0 Anil Kumar Mahuwar (P.W. 7), convicted all the appellants and sentenced them to undergo life imprisonment under Section 302/149 of the Indian Penal Code and rigorous imprisonment for one year under Section 148 of the Indian Penal Code. 6. The defence has not examined any witness but has taken a plea that the appellants are innocent and have not committed the alleged occurrence. On the other hand, deceased Pandu Gope and his son Sona Ram Gope (informant) themselves carry criminal history and they had got enemies who might have committed the occurrence but these innocent villagers have falsely been implicated in this case, due to enmity. 7. Learned counsel for the appellant has assailed the judgment and order of conviction passed by the learned Sessions Judge on the ground that the informant himself is an extremist and is harassing the villagers. His father was a police personnel and was a retired Military personnel. The informant and his father had differences with the other extremists, who might have killed Pandu Gope and the house was set on fire. His father was a police personnel and was a retired Military personnel. The informant and his father had differences with the other extremists, who might have killed Pandu Gope and the house was set on fire. There area number of villagers, who have been examined by the I.O. and are chargesheet witnesses but they have not been examined by the prosecution except the family members of the deceased. There is vital contradiction in the evidence of the interested eye witnesses i.e. P.W. 3 Smt. Pan Mati Kui, P.W. 5 Hesai Purti and the informant P.W. 6 Sona Ram Gope. Neither the mother nor the sister of the informant are the eye witnesses as they were not present at the place of occurrence at the time of the alleged occurrence rather out of fear they fled away and went to the house of other villager and took shelter there. But they have claimed themselves to be the eye witnesses in course of evidence in the court. The informant himself had closed the door from inside when his father was assailant to death and the house was set on fire. Under such circumstances, he could not have seen as to who assaulted his father till death and who set his house on fire, as his house was surrounded by 60 to 70 persons of Villages-Bara Guntia, Chhota Guntia and Kotro Guttu. The informant in his Fard-beyan has deposed that the assailants assaulted his father with Lathi, Garasa, Tangi and arrow. His mother P.W. 3 8mt. Pan Mati Kui also has deposed that her husband was done to death with Tangi blows whereas her daughter P.W. 5 Hesai Purti has deposed that her father was done to death by Katari blows. The doctor P.W. 1 who conducted the post-mortem examination on the dead body of Pandu Gope, found the weapon used to be hard and blunt substance, such as, Lathi. He did not find any injury caused by sharp cutting weapon. Injury No. (i) and Injury No. (iv) which were lacerated wounds 1 1/2" x 1" x deep up to brain matter over the frontal area above the right eye. He found fracture of the frontal bone and injury no. (iv) is bruise over the left side of the chest, just below the 6th rib. They were sufficient to cause death in ordinary course of nature. He found fracture of the frontal bone and injury no. (iv) is bruise over the left side of the chest, just below the 6th rib. They were sufficient to cause death in ordinary course of nature. The doctor prepared post-mortem report in his pen and signature. The other injuries i.e. injury no. (ii) was incised wound-1" x skin deep. Injury no. (iii) was bruise 4" x 1/2" x 5" deep over the right side amlicus and 5th injury was bruise over the left fore-arm and just near the elbow 1/2" in diameter and middle part of the fore-arm. The death was caused within 30 hours from the time of post-mortem examination on 27.12.1991 at 1.30 a.m. 8. The learned A.P.P submitted that due to passage of time, the independent witnesses did not come to support the prosecution case. P.W. 3 Smt. Pan Mati Kui, her daughter Hesai Purti P.W. 5 and her son Sana Ram Purti P.W. 6 have supported the prosecution case that these appellants forming an unlawful assembly, armed with deadly weapons, brought her husband out of the house and assaulted him till death. They also set the house on fire. The doctor found injuries on the person of the dead body. The I.O P.W. 7 Anil Kumar Mahuwar found blood stains outside the southern door in the open field at a distance of 10 yards which is said to be the Angan of the house. Considering these evidences, the learned Sessions Judge has rightly convicted these appellants and sentenced them. 9. In the present case, the alleged occurrence took place at about 12 noon. The I.O. P.W. 7 recorded the Fard-beyan (Ext.2) of the informant at Village-Putida. He prepared inquest report in carbon process (Ext.5) He found the dead body of Pandu Gope, lying at a distance of 10 yards south from his house in an open place. He seized the broken tiles, burnt doors, windows, clothes and other damaged materials and prepared seizure list (Ext.3). He sent the dead body of Pandu Gope for post-mortem examination. On 26.12.1991 at 12 noon Homeguard Bijan Ram informed him about the occurrence, which was entered as S.D. Entry No. 495 by the Investigating Officer and he went to the place of occurrence. On that very day at about 10 a.m. he had deputed A.S.I. Md. Israil along with armed forces for Village-Putida Farm and Guntia. On 26.12.1991 at 12 noon Homeguard Bijan Ram informed him about the occurrence, which was entered as S.D. Entry No. 495 by the Investigating Officer and he went to the place of occurrence. On that very day at about 10 a.m. he had deputed A.S.I. Md. Israil along with armed forces for Village-Putida Farm and Guntia. Although he had recorded the statement of Md. Israil who is a chargesheet witness but he has not been examined in this case. He saw the villagers assembled there. When he threatened firing on them, then they disbursed. He did not arrest any of the accused at the place of occurrence. l He did not find any courtyard of the house of the informant. Since 26.2.1991 he did not record the statement of any witnesses under Section 161 of the Code of Criminal Procedure. 10. With regard to the genesis of the alleged occurrence, the informant Sona Ram Gope (P.W. 6) has deposed that prior to the alleged occurrence i.e. on 24.12.1991 Jaina Nayak had threatened the informant and his father of dire consequences as Pandey Gope (deceased) had slapped him when he abused Laxmi Kundal Buru. At that time Smt. Laxmi Kundal Buru, her husband Motka Honhaga, Nirmal Jarika and Kubi Kundal Buru were present there. The prosecution has not examined these witnesses to prove the genesis of the alleged occurrence. Hence the statement of the informant, as recorded in the Fardbeyan, could not be corroborated by any of the witnesses, who are alleged to have heard the threat given by Jaina Nayak of Village-Bara Kundia. Even the informant P.W. 6 has not deposed about the genesis of the alleged occurrence. Thus, the statement of this witness recorded in his Fardbeyan, remains uncorroborated. 11. In this case, the alleged occurrence has not been denied regarding the murder of Pandu Gape, which gets support from the evidence of P.W. 1 Dr. Yogendra Singh, who examined the dead body and prepared Post Mortem Report (Ext. 1). The I.O. (P.W. 7) also prepared inquest report (Ext. 5) of the dead body of Pandu Gape in presence of the witnesses to prove the murder of Pandu Gape. The place of occurrence is also not denied by the appellants, which has been proved by the statement of the I.O. (P.W. 7), informant (P.W. 6), his mother (P.W. 3) and sister (P.W. 5). The seizure list (Ext. 5) of the dead body of Pandu Gape in presence of the witnesses to prove the murder of Pandu Gape. The place of occurrence is also not denied by the appellants, which has been proved by the statement of the I.O. (P.W. 7), informant (P.W. 6), his mother (P.W. 3) and sister (P.W. 5). The seizure list (Ext. 3) prepared by the I.O., and the materials seized, which were damaged house-hold articles, burnt articles and blood stained soil, where the dead body of Pandu Gope was found, also prove the place of occurrence. In view of this fact, there is no dispute about the place of occurrence, which has been established by the prosecution. The time of the alleged occurrence is also not in dispute, which took place at about 12 noon, as proved by the evidence of the informant P.W. 6, his mother P.W. 3 and sister P.W. 5, supported by the evidence of the I.O. Anil Kumar Mahuwar (P.W. 7). The point for determination before me is as to whether the interested related witnesses namely, P.W. 3 Smt. Pan Mati Kui, P.W. 5 Hesai Purti and P.W. 6 the informant Sona Ram Gope, are the eye witnesses of the alleged occurrence or not. P.W. 6 in his Fard-beyan (Ext.2) has mentioned that 70 to 80 persons of three villages, namely, Sara Guntia, Chhota Guntia and Kotro Guttu surrounded his house. They dragged his father out of the house and assaulted him with Lathi. Garasa, axe (Tangi) and bows. He was also being threatened whereupon he concealed himself inside the room and bolted from inside and thereafter, the house was set on fire. His mother and sister (P.W. 3 and P.W. 5 respectively) fled away out of fear and took shelter in a house of another villager. The informant has named altogether eleven persons, who are appellants in this case, who committed the alleged assault on his father and set his house on fire. He also named Jaina Nayak with whom there was an altercation on 24.12.1991 regarding non-supply of Haria by Smt. Laxmi Kundal Suru to him. Deceased Pandy Gope assaulted him, which resulted into threatening of dire consequences to him and his son (informant). In course of his evidence informant P.W. 6 has deposed that the villagers who had surrounded his house and assaulted his father, had swords, bows, Kudali and axe in their hands. Deceased Pandy Gope assaulted him, which resulted into threatening of dire consequences to him and his son (informant). In course of his evidence informant P.W. 6 has deposed that the villagers who had surrounded his house and assaulted his father, had swords, bows, Kudali and axe in their hands. They assaulted his father, Respondent suiting his death at the spot. Amongst them, he identified Jaina Nayak, Taka Sura, Naranga, Golu, Juria, Chumru, Murchu and Nara. His mother and sister had gone in the house of a nearby villager at the time of the alleged occurrence. Thus, his mother and sister (P.W. 3 and P.W. 5) are not the eye witnesses of the alleged occurrence. P.W. 3 Smt. Pan Mati Kui, wife of deceased Pandu Gape, has deposed that her husband was done to death by giving Tangi blows. She has deposed that there was a Khalihan in the Angan, which was set on fire. When the police went to the place of occurrence, then they were taken to the Police Station. She identified appellant Taka Sura Purti, Naranga, Chumru Tiu, Jaina Tiu and Yogendra Kundal Buru. P.W. 5 Hesai Purti had identified Taka Sura who took out her father from the house. He had Kafari. The other assailants had also Katari. Appellant Taka Sura Purti murdered her father. In paragraph no. 15 she has deposed that her statement was not recorded by the I.O. in course of investigation. P.W. 7 had deputed A.S.I Md. Israil to the Village Putida Farm and Guntia on that very day at about 10.00 a.m. In presence of the A.S.I. and the armed forces, the alleged occurrence took place. He sent Home guard Bigan Ram to inform the Police Station for re-enforcement of the force. After entering S.D. Entry No. 495, the I.O. went there along with armed forces. In his presence also the villagers were bent upon to kill P.W. 6 informant Sana Ram Gape but the police saved his life. In the Fard-beyan P.W.6 Sana Rama Gape has named the appellants which was recorded at the spot but the I.O. did not arrest them who were present at the place of occurrence itself and had indulged in causing murder of Pandu Gape and setting the house of the informant on fire. The doctor P.W. 1 did not find any injury caused by Katar;, Tangi or bows. The doctor P.W. 1 did not find any injury caused by Katar;, Tangi or bows. Thus the ocular evidence of P.W. 3, P.W. 5 and P.W. 6 could not be corroborated by the Medical evidence of Yogendra Singh (P.W. 1), which creates doubt in the manner of the alleged assault on the person of Pandu Gope (deceased). The identification of these appellants alleging that they took part in committing the alleged occurrence is also doubtful only because as per the evidence of P.W. 6, his mother and sister went out of the house at the time of the alleged occurrence and took shelter in a nearby house of the villager. He closed himself inside the room and thus, there was no possibility that he witnessed the alleged occurrence. It also gets corroborated with the fact that he named the appellants in the Fard-beyan but he could not name them all in his evidence. His mother P.W. 3 and sister P.W. 5 have also not named these appellants in course of their evidence although they claimed themselves to be the eye-witnesses. This further gets corroborated with the fact that had these appellants taken active part in causing murder and setting the house on fire, then Md. Israil (A.S.I.) who was deputed there along with armed forces, could have rescued the informant and his father. When the I.O. (P.W. 7) went on the information of the Home guard along with the armed forces, then also he found that villagers were bent upon to kill the informant, who was brought out of the room by the I.O. In his presence fire was extinguished and the eye witnesses i.e. P.W. 3, P.W. 5 and P.W. 6 were rescued and were taken to the hospital. He also did not arrest anyone at the place of occurrence, which shows that these appellants were not the active participants in commission of the murder and arson. 12. On the other hand, the I.O. did not examine any witness in course of investigation after 26.12.1991, as deposed by him in paragraph no. 21 as the alleged occurrence also took place on the same day near about 12 noon and the Fardbeyan was recorded at 1.30 p.m. 13. 12. On the other hand, the I.O. did not examine any witness in course of investigation after 26.12.1991, as deposed by him in paragraph no. 21 as the alleged occurrence also took place on the same day near about 12 noon and the Fardbeyan was recorded at 1.30 p.m. 13. In view of the contradictory statements of the ocular witnesses i.e. P.W. 3, P.W. 5 and P.W. 6 regarding the manner of the alleged occurrence that Pandu Gope was done to death by assaulting him with Katari and Tangi does not get corroborated by the Medical evidence of the doctor (P.W. 1) who found injuries, sustained by the deceased, to be caused by hard and blunt substance. I have already stated above that the interested witnesses i.e. P.W. 3, P.W. 5 and P.W. 6 are not the eye witnesses in the facts and circumstances of the case, as alleged in the Fard-beyan and in course of their evidence in court. In presence of the police, even if murder or arson would have taken then the assailants must have been arrested. In this case, the fact is otherwise, as the I.O did not arrest anyone amongst the appellants or any person assembled in the mob, who were bent upon to kill the informant (P.W. 6) Sona Ram Gope. 14. On the other hand, after 26th December, 1991, the I.O. did not record the statement of any witness in course of investigation, which shows that the prosecution case could not be proved beyond all shadow of reasonable doubts against these appellants. None of the village independent witnesses has been examined to support the prosecution case. In view of these considered facts, I come to the conclusion that the finding of conviction and sentence, arrived at by the learned Sessions Judge cannot be sustained. In the result, this Criminal Appeal is allowed and the impugned judgment and order of conviction and sentence, passed by the learned Sessions Judge, West Singhbhum, Chaibasa, in Sessions Trial No. 123 of 1993, is hereby set aside. As all the appellants are in custody, hence they are ordered to be released forthwith from custody, if not wanted in any other case.