Judgment ANIL KUMAR SINHA, J. 1. The appellants, namely, Ram Bilash Yadav alias Ram Gilash Yadav, Naresh Yadav and Binda Yadav have been convicted under Section 302/34 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for life. 2. The prosecution story, as disclosed in the FIR, is that on 2.8.81 accused Ram Bilash Yadav alias Ram Gilash Yadav had purchased a piece of land from a Pathan which was situated adjacent to the land of the informant but the land was downwards and accused Ram Bilash Yadav always used to cut ridge of the informants land for which the informant made complain to the Mukhiya of the village, namely, Jagdish Yadav, who had forbidden the accused not to do so. On the alleged date of occurrence i.e. 2.8.81. transplantation work was going on in the field of the informant as well as accused and the deceased had cut the ridge of his land for the flow of water which was objected by the appellant Naresh Yadav, who abused the deceased who protested. On the same day at about 6.00 p.m. the informant alongwith his son were uprooting the paddy seedlings from their land and the appellants were also uprooting the paddy seedlings from their land when all the three ppellants went to the field of the informant and Ram Bilash Yadav gave orders to assault as the deceased always used to create trouble, whereupon, appellant Binda Yadav caught hold of the deceased and Naresh Yadav assaulted the deceased with dagger, as a result thereof, the informants son fell down injured facing towards the ground. Thereafter, all the three appellants pressed the deceased due to which he died. The informant did not try to save his son on account of his old age but raised alarm on which Ram Bilash Yadav asked the other appellants to assault him. Thereafter, the witnesses, namely, Dhanraj Yadav (P.W. 3), Faujdar Yadav (P.W. 1). Sardar Yadav (P.W.2) and many other villagers came and seeing them all the appellants fled away. It is said that there were gozzis in the hands of Ram Bilash Yadav and Binda Yadav. Fardbeyan of the informant was recorded at the police station 302/34 of the Indian Penal Code was instituted against all the three appellants. Sardar Yadav (P.W.2) and many other villagers came and seeing them all the appellants fled away. It is said that there were gozzis in the hands of Ram Bilash Yadav and Binda Yadav. Fardbeyan of the informant was recorded at the police station 302/34 of the Indian Penal Code was instituted against all the three appellants. After completing the investigation, the police submitted charge-sheet against the appellants under Section 302/34 of the Indian Penal Code on the basis of which cognizance was taken and the case was transferred to the Court of Sessions for trial. 3. The case of the defence is that the accused appellants are quite innocent and have been falsely implicated in the case due to land dispute and the occurrence did not take place in the manner as alleged in the FIR. 4. In order to prove the charges the prosecution examined as many as 12 witnesses and the defence also examined three witnesses. P.W. 1 Faujdar Yadav. PW 2 Sardar Yadav and PW 3 Dhanraj Yadav and PW 8 Makari Yadav claimed themselves to be the eye witnesses of the alleged occurrence, whereas. PW 4 Basant Kumar is a formal witness, who has proved formal FIR (Exhibit-2), PW 6 Kamta Yadav has been tendered and he has admitted that he did not make any statement before the police, PW 9 Sheetal Prasad is another formal witness, who has deposed that the informant came to him at Rafiganj and disclosed that his son has been killed and on his request he reached him to the police station where his fardbeyan was recorded. In his cross- examination, he has admitted that the informant had simply disclosed to him that his son has been killed and he had not stated any thing else to him and after reaching him to the police station he returned back to him Dispensary. 5. PW 7 Lakhan Prasad is the chaukidar of the village, who had accompanied the informant to the police station and in his presence FIR was lodged. PW 7 has clearly stated that the informant had not disclosed to him as to who had assaulted his son. 5. PW 7 Lakhan Prasad is the chaukidar of the village, who had accompanied the informant to the police station and in his presence FIR was lodged. PW 7 has clearly stated that the informant had not disclosed to him as to who had assaulted his son. In cross-examination, PW 7 has stated that he came at the place of occurrence on being called by Faujdar Yadav (PW 1) and many persons had assembled there and he remained near his dead body for the whole night alongwith Faujdar Yadav (PW 1) and Makari Yadav (PW 8). He has stated that no body had informed him the name of the appellants as assailants. 6. PW 1, PW 2 and PW 3 claimed themselves to be the eye witnesses of the alleged occurrence and they have admitted that they are own brothers. PW 8 Makari Yadav is the cousin brother of PW 1 which has been admitted by him. PW 1 has deposed that on hearing the alarm of Brahamdeo Yadav that Naresh, Binda and Ram Bilash are killing his son. he went to the place of occurrence and saw that the three accused had thrashed the deceased in water and the deceased died. The accused persons fled away towards west. He further stated that there was knee deep water in the P.O. land and Ram Bilash was lying facing towards grounds and blood was coming out near his thigh. PW 2 Sardar Yadav has deposed that he was at his house where he heard the alarm raised by Brahamdeo Yadav. So, he went to the place of occurrence and saw that the three accused were pressing the deceased and seeing him all of them fled away. This witness noticed that Naresh was armed with dagger and remaining two were armed with lathi. Similar is the statement of PW 3 (Dhanraj Yadav) and PW 8 (Makari Yadav). 7. It is transparently clear from the evidence of PW 1, 2, 3 and 8 that they were not present at the place of occurrence from the beginning and had not seen the assault made by appellant Naresh but all of them have stated that they had seen the appellants while they were pressing the deceased from his back, the deceaseds mouth was facing ground and at that time there was knee deep water in the P.O. field. 8. 8. I shall discuss the evidence of the eye witnesses in may forthcoming paragraphs but before that it would be worthwhile to refer the medical evidence. 9. PW 5 Dr. D. Tripathi conducted post mortem examination on the dead body of the deceased on 4.8.81 at 4.00 p.m. i.e. after 44 hours of the alleged occurrence. PW 5 found the following ante mortem injuries on the person of the deceased. "I. Echymosis on the neck in the middle 3" x 2" placed transversly in front, II. An incised would 1-1/2" x 1" x 1" on the lateral side of right eye. III. On dissection :Neck, thyroid and hyoid, cartiledges were broken and contained blood, surrounding soft structures contused body was in the State of decompostion, tongue and eye balls protruded, skin pilled of here and there, rigour mortis was absent." 10. PW 5 has deposed that injury No. 1 was caused by hard and blunt substance and injury No. 2 was caused by sharp edged weapon such as dagger and in his opinion death was caused due to asphyxia leading to respiratory failure. The time elapsed. Since death was within 72 hours from the time of his post mortem examination. PW 5 has proved the post mortem report (Exhibit-3). He has stated that injury No. 1 may be caused if neck is pressed with lathi. In cross-examination, PW 5 has stated that injury No. 1 may be caused by lathi if it is thick one and if a man is drawn in 1 - 1-1/2 feet water, his stomach may contain water up to 20 ounce. He has further stated that decomposition starts after thirty six hours and in this case time of death may vary from 36 to 72 hours. PW 5 has clearly stated that injury No. 1 can not be caused by throttling with fingers. He further admitted that if a dagger is used as bhala, the wound caused could be peneterating and not incised, 11. PW 5 has clearly stated that injury No. 1 can not be caused by throttling with fingers. He further admitted that if a dagger is used as bhala, the wound caused could be peneterating and not incised, 11. Learned counsel appearing for the appellants strongly argued before me that the medical evidence of the doctor belies the entire prosecution story, inasmuch, as no witness has stated that the deceased was killed by pressing lathi on his neck and the consistent evidence of the eye witnesses is that all the three accused were pressing the deceased from above and at that time the deceased was facing towards the ground and there was knee deep water in the field. It was also pointed out that dagger is a pointed weapon and if the deceased had been assaulted with dagger as alleged in the FIR, he must have sustained peneterating wound and not the incised one. Besides that, it was argued that the deceased actually died due to injury no. I which was only possible if neck had been pressed by a thick lathi but there is no evidence to this effect and the doctor has clearly opined that the injury No. 1 can not be caused by throttling with fingers. As such, the deceased had not died due to pressing of the accused appellants with their hands and injury No. 1 was only possible if the neck of the deceased would have been pressed with any hard and blunt substance such as lathi but there is neither such case in the FIR nor the witnesses have deposed to that effect. 12. PW 12 Parshuram Jha is the I.O. of this case, who reached at the place of occurrence at 11.30 a.m. and prepared the inquest report (Exhibit-1) and inspected the place of occurrence. According to him the place of occurrence is situated at a distance of 200 yards from village Chandaul towards north east. He also found knee deep water in the P.O field and the dead body was lying in the P.O field facing towards ground. The inquest report (Exhibit-1) prepared by PW 12 goes to show that he found injury near eye caused by sharp pointed weapon and blood was coming out from the hole of the injury near the eye. He also found knee deep water in the P.O field and the dead body was lying in the P.O field facing towards ground. The inquest report (Exhibit-1) prepared by PW 12 goes to show that he found injury near eye caused by sharp pointed weapon and blood was coming out from the hole of the injury near the eye. The nature of injury as described in the inquest report (Exhibit-1) is not supported from the evidence of PW 5, who found incised injury near the eye of the deceased. The I.O. has admitted that there is no reference in the case diary whether there was any cut of the ridge in the field which is the very genesis of the alleged occurrence. 13. In Cross examination PW 1 has stated that after hearing hulla, he saw that accused Naresh was assaulting the deceased with dagger near his eye on account of which the deceased fell down in the water and he repeated the assault and thereafter all the accused pressed the deceased into the water. Learned counsel submits that PW 1 has spoken a white lie, inasmuch, as he was present in his house which is situated at a distance of 200 yards and the informant raised alarm after the accused appellants had assaulted the deceased and pressed him into the water. So, by no stretch of imagination. PW 1 could have witnessed the assault with dagger from such a distance and according to the FIR the informant had raised alarm when his son had been assaulted by accused Naresh and three accused had pressed him into the water. According to the learned counsel, the entire occurrence must have been completed within 2-3 minutes if the story as described in the FIR is believed and the assailants must have fled away from the place of occurrence. So, in such circumstances PW 1 could neither have seen the alleged assault by dagger made by Naresh nor he could have seen the assailants while they were pressing the deceased. As such, it was submitted that PW 1 is not the real witness to the alleged occurrence and he has been tutored to depose falsely because the deceased had purchased two Bighas of land from the daughters of his uncle Devlal and he had also purchased four Bighas of land of Devlal which fact has been admitted by PW 2 (vide para 8). 14. PW 2 Sardar Yadav, who also claims to be the eye witness, has stated that at the time of occurrence he was tying up cattle in his house. According to him the place of occurrence is situated at a distance of 100-50 yards from his house but the I.O. has stated that the P.O. is situated at a distance of 200 yards from the village. This witness has contradicted his own version by admitting that when he had proceeded about 50 yards from his house, he saw the assailants fleeing away. He has tried to play hot and cold in the same breath by stating that when he first saw the accused they were pressing the deceased which does not look believable because he could not have seen the accused persons while they were pressing the deceased from a distance of 200 yards where his house was situated and it appears that he vomitted the truth at the first instance by stating that when he proceeded 50 yards from his house, he saw accused persons fleeing away. It would, therefore, appear that PW 2 had not actually seen the alleged occurrence. According to this witness, PW 3 Dhanraj Yadav and PW 8 Makari Yadav had reached at the place of occurrence after him. He has admitted that Makari is his cousin brother, whereas, Dhanraj Yadav (PW 3) is his own brother. PW 2 has admitted that the chaukidar came at the place of occurrence after half an hour but no body went to the police station to inform about the occurrence and he learnt in the following morning that information has been sent at the police station. He has admitted that the western ridge of the P.O. field was not cut which is the very genesis of the alleged occurrence. PW 2 has admitted that he had stated before the police that blood was coming from the head of the deceased which looks absurd because there is neither any allegation in the FIR that the deceased had sustained injury on his head nor PW 5 found any such injury on the head of the deceased. He claimed to have stated before the police that Brahamdeo raised alarm that his son is being killed and also stated that he saw dagger in the hands of Naresh and the remaining accused had lathi in their hands. He claimed to have stated before the police that Brahamdeo raised alarm that his son is being killed and also stated that he saw dagger in the hands of Naresh and the remaining accused had lathi in their hands. PW 12 denied that he made such statement before him. It would, therefore, appear that the I.O. has contradicted his statement. 15. PW 3 Dhanraj Yadav, who claims to be the eye witness to the alleged occurrence has stated in his cross-examination that on hearing alarm he rushed towards the place of occurrence alongwith 2-4 persons and when he reached at a distance of about 100 steps from his house, he saw that the accused appellants were fleeing away towards west. The statement of PW 3 would go to show that he had also not witnessed the actual occurrence. PW 3 claimed to have stated before the police that Naresh was armed with dagger and remaining two accused were armed with lathi but the I.O has contradicted his statement that he had not made such statement before him. 16. The next witness who also claims to be the eye witness is PW 8. As already stated above, PW 8 is the cousin brother of PW 1, 2 and 3 and according to PW 2, he had also purchased land from the daughters of Devlal, who was the uncle of PW 1. This witness has stated that he had gone to ease out towards the east of the village when he heard the alarm raised by the informant and when he reached at the P.O., he found that all the three appellants were pressing the deceased and when he reached, the assailants fled away. According to him P.O. land was situated at a distance of ten steps from where he was sitting to ease. He has stated that his village is situated at a distance of 10-15 steps from the P.O land but in the same breath he has stated that he was at a distance of 10-15 steps from his village. If his later statement is believed, it can be inferred that he was at a distance of about 200 yards from the P.O land and, as such, he also must not have seen the alleged occurrence. If his later statement is believed, it can be inferred that he was at a distance of about 200 yards from the P.O land and, as such, he also must not have seen the alleged occurrence. If it is believed that he was at a distance of 10-15 steps from the P.O. land then in all probability he was first to reach at P.O. and in that case the informant must have mentioned his name in the FIR that on hearing alarm PW 8 was first to arrive at the P.O. But, to my utter surprise. I find that there is no whisper of name of PW 8 in the FIR. As such, I have no hesitation to say that PW 8 falsely deposed that he was easing at a distance of ten steps from the P.O land. PW 8 has admitted that Dhanraj yadav (PW 3), Sardar Yadav (PW 2) and Faujdar Yadav (PW 1) had reached at the P.O before him from the village side. So, the arrival of this witness at the P.O after PW 1, 2 and 3 is also a circumstance to show he had not witnessed the occurrence as claimed by him PW 8 has admitted that the police had not recorded his statement. 17. PW 9 Sheetal Prasad is not an eye witness to the occurrence but he is one of agnatic relation of the informant. He has been examined to say that the informant came to him at 7-8 a.m. at Rafiganj and informed that his son has been killed and requested him to reach to the police station. So, on his request, he accompanied him up to the police station where his statement was recorded. In cross-examination, PW 9 has fairly admitted that the informant had not stated anything else to him which means that he had not stated the name of the assailants to him. 18. PW 10 Mungeshwar Yadav has been examined to say that he met the informant at Rafiganj and learnt from him that his son has been murdered, so, he is going to the police station. This witness was PW 9 and chaukidar with him and he also accompanied the informant up to the police station, where, the I.O. recorded the statement of the informant but this witness has also not stated that the informant had disclosed to him the names of the appellants. 19. This witness was PW 9 and chaukidar with him and he also accompanied the informant up to the police station, where, the I.O. recorded the statement of the informant but this witness has also not stated that the informant had disclosed to him the names of the appellants. 19. PW 11 Devnandan Yadav is the nephew of the deceased, who had gone to the place of occurrence on hearing the noise of the deceased and in his presence the inquest report was prepared. But this witness has not whispered a word that any body informed the names of the appellants as the murderers of the deceased. In the normal course, the informant or the villagers must have informed PW 11 about the manner of occurrence and the names of the assailants and out of curiosity he must have enquired about the details of the occurrence including the names of the assailants but he has not spoken a word in that regard. 20. Learned counsel appearing for the appellants argued that not a single independent witness of the village has come forward to support the prosecution story and the eye witnesses are closely related to each other. They have falsely deposed because of the annoyance since the deceased Ram Bilash had purchased a land of their uncle Devlal after his death from his daughters and they had greedy eyes on that land. Learned counsel submitted that the prosecution story can not be rejected only on the ground that the witnesses are closely related to the deceased and they are interested witnesses. But. the evidence of such witnesses has to be scrutinised with great caution. Learned APP also conceded to this effect. It was submitted that the evidence, facts and circumstances of the case go to show that the evidence of PW 1, 2, 3 and 8 is not at all trustworthy and worth placing credence to the their version appears to be tutored and unbelievable. 21. Learned APP also conceded to this effect. It was submitted that the evidence, facts and circumstances of the case go to show that the evidence of PW 1, 2, 3 and 8 is not at all trustworthy and worth placing credence to the their version appears to be tutored and unbelievable. 21. It was next pointed out that the alleged occurrence took place on 2.8.81 at 6.00 p.m., the distance of police station was only six miles from the P.O., the chaukidar reached at the P.O. within half hour, so, in all probability the informant should have rushed to the police station and lodged the FIR with all promptitude and there was absolutely no reason for the informant to wait till next morning when FIR was lodged at about 8.45 a.m. According to the learned counsel, the informant did not go to lodge FIR because he was not sure about the assailants since he had not seen any occurrence and after due deliberations and at the instance of PW 1, 2 and 3, an imaginary story was cooked up during the intervening period and accordingly, the informant went to lodge the FIR on the next day. This circumstance gets support from the fact that the chaukidar (PW 7), who reached at the P.O. within half hour has not stated a word that the informant or the witnesses had disclosed to him the names of the appellants and he has gone to the extent of saying that the informant had not disclosed to him as to who killed his son and no body informed him the name of the assailants. It was also pointed out that PW 9 and 10, who accompanied the informant up to the police station also did not depose that the informant disclosed to them the names of the appellants as killer of his son, PW 11, who is the own nephew of the deceased has also not whispered a word that the informant or any body had disclosed the names of the appellants as assailants when he went to the place of occurrence on getting the news of death of his fufa (deceased). If was, therefore, suggested that the appellants have been falsely implicated after due deliberation and the police was brought into collusion to falsely implicate the appellants. If was, therefore, suggested that the appellants have been falsely implicated after due deliberation and the police was brought into collusion to falsely implicate the appellants. It was pointed out that the FIR was lodged on 3.8.81 at 8.45 a.m., the I.O. should have despatched the FIR to the Magistrate on the same day but the fact remains that the FIR was received in the Court on 5.8.81 without any explanation for the abnormal delay caused in receipt of the FIR in the Court and this is yet another circumstance which throws sufficient doubt on the prosecution. Lastly, it was submitted that the medical evidence is not in conformity with the inquest report and the doctor has stated that the time elapsed since death is within 72 hours. Post mortem examination was held on 4.8.81 at 4.00 p.m. As such, the possibility can not be ruled out that the deceased was murdered on 1.8.81, that is why, the doctor found that the time elapsed since death was within 72 hours and not within 48 hours. 22. It may be worth while to mention that the defence also examined three witnesses in this case, namely, DW 1 Ram Naresh Yadav, DW 2 Dev Ram Yadav and DW 3 Ram Prasad Yadav. It is well settled principle of law that the defence has not to prove its case and the burden of proving its case is on the prosecution which can fall or stand on its own leg. Even then, DW 1 Ram Naresh Yadav has deposed that on hearing halla he went to the P.O but nobody had disclosed to him the names of the assailants. He has admitted in his cross-examination that he stayed for 10-15 minutes at the P.O and could not say that who else were present at the P.O when he reached there and he did not have talk with any body so long he was there. DW 2 Dev Ram Yadav has stated that he met the son of the deceased, namely, Bijay Yadav at 7-7.30 p.m. on the alleged date of occurrence and he was enquiring about the whereabouts of his father. The Mukhiya was also present in his shop. He further stated that after sometime he saw Bijay Yadav crying and he disclosed that the dead body of his father is lying in field. The Mukhiya was also present in his shop. He further stated that after sometime he saw Bijay Yadav crying and he disclosed that the dead body of his father is lying in field. So, he alongwith Sardari (PW 2), Dhanraj (PW 3) and Faujdar (PW 1) and others went to the P.O and the father of deceased also reached there after sometime but no body had disclosed the name of the appellants nor he learnt that how the deceased died. After waiting for 1 - 1-1/2 hours at the P.O. DW 2 left the place. Similar is the statement of DW 3 Ram Prasad Yadav. The trial Court has disbelieved the evidence of the aforesaid DWs by assigning reasons but even if the evidence of the defence witnesses are kept aside the Court has to evaluate the evidence of the prosecution witnesses so as to come to the conclusion that whether they are trustworthy and the case of the prosecution has been proved by their evidence or not. 23. The circumstances pointed out by the learned counsel for the appellants and on careful scrutinising the evidence, facts and circumstances of the case, I am of the view that the evidence of PW 1, 2 and 3, who are the own brothers and PW 8, who is their cousin brother does not inspire confidence to believe as their evidence is not consistent with each other and not in conformity with the medical evidence as discussed above. Moreover, it has been pointed above, that the above witnesses could not have seen the alleged occurrence and, in fact, they have admitted that they had only seen the appellants while they were fleeing away which means that they had not seen the actual occurrence of assault as also the altercation which took place between them. The prosecution has also failed to prove beyond doubt the genesis of the occurrence which is established from the evidence of the witnesses and the I.O., inasmuch, as no ridge was cut on the western side of the field which is said to be the genesis of the alleged occurrence. 24. The prosecution has also failed to prove beyond doubt the genesis of the occurrence which is established from the evidence of the witnesses and the I.O., inasmuch, as no ridge was cut on the western side of the field which is said to be the genesis of the alleged occurrence. 24. The inconsistencies, contradictions and improbabilities pointed out by the learned counsel for the appellants coupled with the abnormal delay in lodging the FIR and its receipt in the Court after three days without any satisiactory explanation coming forth from the prosecution, in my opinion, renders the prosecution story doubtful and I am of the firm view that the prosecution had not proved the charge against the appellants beyond all reasonable doubts and the appellants were at least entitled to get benefit of doubts. Accordingly, the appellants are held not guilty to the charges and are acquitted of the same. I therefore hold that the learned trial Court was not justified in convicting the appellants. So, the order of conviction and sentence as recorded by the learned trial Court is set aside. 25. In the result, this appeal is allowed. The appellants, who are on bail, are discharged from the liabilities of their bail bonds.