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2003 DIGILAW 460 (JHR)

RUPLAL SAO v. STATE OF BIHAR

2003-04-09

LAKSHMANA RAO, VISHNUDEO NARAYAN

body2003
Judgment : VISHNUDEO NARAYAN, J. ( 1 ) THE sole appellant named above has preferred this appeal against the impugned judgment and order dated 22-12-1998 and 23-12-1988 respectively passed in S. T. No. 279 of 1996 by Shri Dhruv Narain Upadhyay, 1st Additional Sessions Judge, Giridih whereby and whereunder the appellant was found guilty for the offence punishable under Ss. 302/34 of the Indian Penal Code and he was convicted and sentenced to undergo R. I. for life and to pay a fine of Rs. 500/- and in default thereof to undergo S. I. for one month. However, the appellant was acquitted for the offence punishable under Ss. 3 and 4 of the Explosive Substances Act and also for the offence under Ss. 25 (1-B) and 27 of the Arms Act. ( 2 ) THE prosecution case has arisen on the basis of Fardbeyan (Ext. 7) of P. W. 8 Gango Sao, the informant and brother of Hublal Sao, the deceased of this case, recorded by P. W. 12 Nasiruddin Khan S. I. who is the I. O. of this case on 16-6-1996 at about 22. 00 hours at village Phucho Nagri P. S. Nimiaghat, District Giridih regarding the occurrence which is said to have taken place on that very day at 7. 00 p. m. on the village road in front of the house of the deceased. The formal F. I. R. (Ext. 9) was drawn on 16-6-1996 at 23. 45 hours and the F. I. R. was despatched to the Court empowered to take cognizance on 17-6-1996 and it was received in the said Court on 18-6-1996. ( 3 ) THE prosecution case, in brief, is that P. W. 8, the informant along with his nephews P. W. 1, Bhuneshwar Sao and P. W. 6 Kailash Sao besides his neighbour P. W. 3, Tulsi Sao along with the deceased-Hublal Sao besides the female inmates of the house was sitting in front of the house of the deceased and at about 7. 00 Oclock in the evening appellant-Ruplal Sao and his son Buchua Sao (an absconding co-accused) who are the residents of village Phucho Nagri along with one unknown person came there and the appellant-Rupbal Sao told pointing the deceased that he is to be killed and the appellant and the aforesaid two persons assaulted Hublal Sao by bomb and pistol causing injury on the face, chest and other places on his person and he fell down there and, thereafter, they all assaulted him by dagger as a result of which he died on the village road. It is also alleged that the appellant and his two associates aforesaid had hurled four bombs. It is also alleged that the informant and others have witnessed the occurrence also from the roof and some other persons besides them have also witnessed the occurrence. It is further alleged that the appellants and his two associates had gone to Barora in search of the deceased on the last Saturday as the deceased is an employee of B. C. C. L. and resides in quarter No. 252 at Barora and on the last Wednesday they in the company of the wife of the appellant were also found moving in the vicinity of the house of the deceased. It is also alleged that a countrymade pistol was also found near the place where the deceased had fallen and died. The prosecution case further is that there was dispute between the deceased and the appellant regarding the house for the last five months of the occurrence and the appellant had intimidated the deceased to be done to death and due to this the appellant has been murdered. Exts. 3 and 3/1 are the signatures of P. W. 8, Gango Sao and P. W. 7, Tahal Sao on the Fardbeyan (Ext. 7 ). ( 4 ) THE appellant has pleaded not guilty to the charges levelled against him and he claims himself to be innocent and to have committed no offence and that he has been falsely implicated in this case due to enmity. The appellant has also taken the defence of alibi in this case and in support thereof D. W. 1 Md. Safuddin has taken oath. ( 5 ) THE prosecution has in all examined 12 witnesses to substantiate the charges levelled against the appellant. The appellant has also taken the defence of alibi in this case and in support thereof D. W. 1 Md. Safuddin has taken oath. ( 5 ) THE prosecution has in all examined 12 witnesses to substantiate the charges levelled against the appellant. P. W. 8, Gango Sao is the informant of this case and he is the full brother of the deceased. P. Ws. 5, 6, 1, 4, 3 and 2 besides P. W. 8 claims to be the ocular witnesses of occurrence. P. W. 5 Sonia Devi is the widow of the deceased. P. W. 6, Kailash Sao and P. W. 1 Bhuneshwar Sao are the sons of the deceased. P. W. 4, Hemlal Sao is the cousin brother of the deceased. P. W. 3 Tulsi Sao is the full brother of the deceased and P. W. 2 Moti Sao is a co-villager of the deceased and they claim to be present at the place of the occurrence and to have witnessed the occurrence. P. W. 7, Tahal Sao is a hearsay witness of the occurrence. P. W. 10 is a formal witness who has proved the sanction (Ext. 5) accorded by the District Magistrate for prosecution of the appellant for the offence under Arms Act. P. W. 11 Sahil David Xalxo is a Sergeant Major who has examined the countrymade pistol recovered from the place of occurrence and his report in respect thereof is Ext. 6. P. W. 9, Dr. Kaushlendra Kumar has conducted the post-mortem examination on the dead body of the deceased and post-mortem report as per his pen is Ext. 4 in this case. P. W. 12 Nasiruddin Khan S. I. is the I. O. of this case and he has recorded the Fardbeyan (Ext. 7) of the informant, prepared Inquest Report (Ext. 2) of the dead body of the deceased, seized countrymade pistol, remnants of the explosive substance and empty cartridge from the place of occurrence and prepared the seizure-list (Ext. 8) in respect thereof which has been witnessed by P. Ws. 8 and 7. D. W. 1 Md. Safuddin has been examined in this case on behalf of the defence regarding the plea of alibi of the appellant. ( 6 ) IN view of the oral and documentary evidence on the record the learned Court below has found the appellant guilty only for the offence under Ss. 8 and 7. D. W. 1 Md. Safuddin has been examined in this case on behalf of the defence regarding the plea of alibi of the appellant. ( 6 ) IN view of the oral and documentary evidence on the record the learned Court below has found the appellant guilty only for the offence under Ss. 302/34 of the Indian Penal Code and has accordingly convicted and sentenced him as stated above. ( 7 ) ASSAILING the impugned judgment it has been submitted by the learned counsel for the appellant that the learned Court below did not consider the evidence on the record in proper perspective and has gravely erred in coming to the finding of the guilt. It has been submitted that there is enmity existing and alive between the parties prior to the occurrence and due to the existence of enmity this appellant has been roped in this got-up case and death of the deceased might have taken place at some other place and his dead body was brought on the road in front of his house by the informant and others and this fact stands corroborated due to the absence of blood fallen at the alleged place of occurrence and the I. O. has also not found any blood at the place of occurrence and as such there is no seizure of any blood-stained earth from the alleged place of occurrence. It has also been submitted that no injury alleged to have been caused by the bomb has been found on the person of the deceased when according to the prosecution case four bombs have been exploded at the place of occurrence and hurled at the deceased and surprisingly enough none of the witnesses of the prosecution, namely, P. Ws. 8, 5, 6, 1, 4, 3 and 2 have sustained any splinter injury caused by the explosive substance on their person. 8, 5, 6, 1, 4, 3 and 2 have sustained any splinter injury caused by the explosive substance on their person. According to the evidence on the record appellant along with his two associates has given repeated blows by dagger on the person of the deceased but the post-mortem report shows the existence of only one stab wound on the upper part of the neck between the chin and the thyroid on the person of the deceased and, therefore, the manner of occurrence as averred in the Fardbeyan does not appear to be in conformity with the manner of occurrence and it equally shows that the said witnesses had no occasion to witness the occurrence. Elucidating further it hasbeen submitted that the medical witness in para 13 of his evidence has categorically stated that no injury has at all been caused by the explosive substance on the person of the deceased and as such there is no explanation forthcoming on the record as to how a large number of lacerated wounds has appeared on the person of the deceased and the prosecution witnesses are lying on the most material aspect of the prosecution case and the true version of the occurrence has been deliberately suppressed by the prosecution with mala fide motive. It has further been contended that the Fardbeyan (Ext. It has further been contended that the Fardbeyan (Ext. 7) cannot be the basis of this prosecution case as prior to that information was given by the informant at the P. S. regarding the occurrence as per para 5 of his testimony read with para 35 of P. W. 1 and the said earliest version has been deliberately withheld and suppressed by the prosecution for the reasons best known to it and furthermore the conduct of the informant is also highly suspicious as according to him soon after the occurrence he went to P. W. 7 Tahal Ram Sahu, a politician by profession, and a resident of village Rangamati to inform him regarding the occurrence instead of reporting the occurrence to the P. S. and the informant returned to the place of occurrence in his company and Nimiaghat P. S. falls in his way while going to Rangamati but he did not take the pains to inform the police at the earliest opportunity for the reasons best known to him and after return to the place of occurrence in the company of Tahal Ram Sahu he had gone to the P. S. and had reported about the occurrence and in this view of the matter the Fardbeyan (Ext. 7) suffers with infirmity under the provisions of S. 161 of the Cr. P. C. It has also been submitted that allegation under the Explosive Substances Act and the Arms Act have been found to be false and not legally proved due to the non-production of the countrymade pistol and manner of occurrence not being in conformity with the medical evidence and as such the conviction of the appellant under Ss. 302/34 of the Indian Penal Code on the basis of same evidence is palpably illegal and stands vitiated. Lastly it has been submitted that all the aforesaid alleged ocular witnesses are highly interested, partisan and inimical witnesses and they have animus to depose falsely and have falsely implicated the appellant in this got-up case whereas the defence of the alibi of the appellant appears to be probable and as such the impugned judgment is unsustainable. ( 8 ) REFUTING the contention of the learned counsel for the defence it has been submitted by the learned A. P. P. that P. Ws. ( 8 ) REFUTING the contention of the learned counsel for the defence it has been submitted by the learned A. P. P. that P. Ws. 8, 1, 6, 3, 5 and 4 are the ocular witnesses of the occurrence as they were present when the occurrence had taken place and they in their evidence have materially supported the prosecution case and their evidence cannot be simply discarded on the ground that they are related with the deceased and there were also enmity existing and alive between the deceased and the appellant. It has further been submitted that the I. O. has found the dead body in front of the house of the deceased on the Kachcha road of the village which is the place of occurrence in this case and remnants of the explosive substance and the countrymade pistol was found at the said place of occurrence which was seized as per Ext. 8 in presence of P. Ws. 8 and7. It is also the consistent evidence of all the aforesaid ocular witnesses of occurrence that it is appellant-Ruplal Sao who has inflicted injuries on the person of the deceased by dagger. Lastly it has been contended that though there are some contradictions and inconsistencies in the evidence of the ocular witnesses but those contradictions and inconsistencies are not of such a magnitude to belie the prosecution case and viewed thus the impugned judgment does not suffer with any illegality. ( 9 ) IT will admit of no doubt that Hublal Sao has been done to death and his dead body has been found on the Kachcha road in front of his house in village Phuchonagri and P. W. 12, the I. O. has found remnants of the explosive substance and a countrymade pistol and one empty cartridge at the place of occurrence which he has seized as per Ext. 8 in presence of P. W. 8 and P. W. 7. 8 in presence of P. W. 8 and P. W. 7. He has further deposed to have prepared the inquest report of the dead body of the deceased at the place of occurrence after recording of the Fardbeyan of P. W. 8, the informant which was witnessed by P. W. 8, Gango Sao and P. W. 7 Tahal Ram Sahu and there were large number of injuries on the person of the deceased and also on his face and chest and there was sufficient blood on the clothes of the deceased. It has also been mentioned in the F. I. R. that death has been caused by injury caused by pistol and dagger. According to P. W. 12, the I. O. the deceased has a double storied house facing west on the Kachcha road which runs from north to south and there is a verandah 8 x 5 having a boundary wall 4 high in the house of the deceased in the west of the said house which is adjacent (sic) east of the said Kachcha road and there is a "pinda" 2 x 1 x 1 adjacent the said verandah made of brick and mud. According to the I. O. , the dead body of the deceased was found on the kachcha road besmeared with blood 6 west north from the said house. P. W. 12 has not seized any blood-stained earth from the place of occurrence as according to him there was no blood fallen there. P. W. 9, Dr. Kaushlendra Kumar has deposed to have conducted the post-mortem examination on the dead body of the deceased on 17-6-1996 at 11. 50 a. m. and has found the following ante-mortem injuries on his dead body :- (I) Lacerated wound 3" x 2" bone deep with compound fracture of the right arm over medial aspect. (ii) Lacerated wound two in number over right side of the chest above axillary region measuring 3" x 2" and 1" x 1" respectively. (iii) Sharp transverse cut over the upper part of the neck between chin and the thyroid cartilage 3" x 1" x wind pipe deep. (iv) Vertical lacerated wound over right side of the face measuring 4" x 3" x bone deep with fracture of the maxillary and madiker (sic) bone on the right side. (v) Swelling 3" x 2" over left temporal region. (iv) Vertical lacerated wound over right side of the face measuring 4" x 3" x bone deep with fracture of the maxillary and madiker (sic) bone on the right side. (v) Swelling 3" x 2" over left temporal region. (vi) Multiple bruises of varying sizes over abdominal wall in front of the chest and back. The medical witness has further deposed that on dissection he has found subcutaneous blood clot over left temporal region of the skull with fracture, intracranial blood was also found over the left temporal lobe. Subcutaneous tissues of the neck was also found to have contained blood clot with partial cut of the wind pipe (trachea in front) and there was also fracture of the clavicle right side and the ribs from 1st to 5th on the right side with blood clot in the plural cavity and there was also laceration of the leg on right side. According to the medical witness injury No. 3 aforesaid was caused by sharp cutting weapon may be by "chura" and rest by hard and blunt substance. The medical witness has further deposed that the death of the deceased was due to shock, haemorrhage and coma as a result of the injuries on the head, chest and neck. According to him the time elapsed since death is about 18-24 hours and the injury Nos. 3 and 5 were sufficient in the ordinary course of nature to cause the death of the deceased. The post-mortem report Ext. 4 per his pen corroborates the testimony of the I. O. The medical witness has, however, deposed in the most clear and unequivocal terms in para 13 of his evidence that none of the injuries appearing on the person of the deceased can be identified with bomb explosion. ( 10 ) ACCORDING to the prosecution case P. W. 8, P. W. 1, P. W. 6, P. W. 3 along with Hublal Sao, the deceased of this case besides the female of his house were sitting in front of the house of the deceased and at about 7. ( 10 ) ACCORDING to the prosecution case P. W. 8, P. W. 1, P. W. 6, P. W. 3 along with Hublal Sao, the deceased of this case besides the female of his house were sitting in front of the house of the deceased and at about 7. 00 Oclock in the evening appellant-Ruplal Sao and his son Buchua Sao, who has absconded in this case, along with one known person came there and pointing at the deceased appellant-Ruplal Sao told that he is to be killed and, thereafter, the appellant and his aforesaid two associates assaulted Hublal Sao by bomb and pistol causing injury on his face, chest and other parts of his body as a result of which the deceased fell down there and, thereafter, the appellants and his two associates assaulted the deceased by dagger as a result of which he died on the village road. According to the prosecution case the appellant and his two associates has hurled four bombs. P. W. 8, Gango Sao, the informant has deposed that on the day of occurrence at about 6. 30 in the evening he was sitting on the "pinda" in front of the house of the deceased in the company of P. W. 1, P. W. 6, P. W. 3, P. W. 4 and P. W. 2, P. W. 8 has further deposed that appellant came there from the south along with absconding accused-Buchua Sao and one unknown person and the appellant told pointing at Hublal Sao that he is to be done to death and, thereafter, he took out a bomb from his bag and hurled it at Hublal Sao. The informant has deposed to have fled away from there and came to his roof from where he saw the appellant assaulting Hublal Sao with dagger and, thereafter, they fled away towards east of the place of occurrence. He has further deposed that, thereafter, he came from his roof and saw Hublal Sao dead. His evidence is further to the effect that he found a countrymade pistol fallen there near the feet of the deceased but according to the I. O. it was found 5 feet east from the dead body. In para 21 of his cross-examination P. W. 8, the informant has deposed that he was sitting at the "pinda" of one Sukar Sao. In para 21 of his cross-examination P. W. 8, the informant has deposed that he was sitting at the "pinda" of one Sukar Sao. P. W. 2 in paras 4, 6 and 7 of his deposition has deposed that the house of Sukar Sao is in the north of the house of the deceased at the distance of four "haath" and there is also a "pinda" 5 feet long in front of the said house and the house of Sukar Sao faces north and the road at that place goes from east to south and he was talking with the informant at that time and he was sitting on the said "pinda" facing the road, talking with the informant P. W. 4 Hemlal Sao has deposed that at the time of the occurrence he was sitting with the informant along with P. Ws. 1, 6 and 3 on the "pinda" of Sukar Sao. It, therefore, appears from the evidence of P. Ws. 2 and 4 read with the evidence of the informant appearing in his cross-examination referred to above that they were not sitting at the "pinda" of the house of the deceased at the time of the occurrence and the topography of the house of Sukar Sao is such that they have in all probabilities no occasion at all to see the appellant along with his associates coming to the place of occurrence and hurling bomb as alleged. P. W. 8 the informant has further deposed that after the hurling of the bomb he had gone on his roof and after scaling several roofs of the nearby houses he went to the roof of Somar Sao from where he claims to have witnessed the assault on the deceased by the appellant and others. He has deposed that he saw from the said roof that Hublal had fallen on the ground and the appellant was assaulting him by dagger and seven or eight blows by dagger were given on the person of the deceased by the appellant. P. W. 1 Bhuneshwar Sao, the son of the deceased, has deposed that at the time of the occurrence he was sitting in his verandah with his brother P. W. 6, Kailash Sao along with P. W. 3 Tulsi Sao and his father Hublal Sao was sitting on the "pinda" of his house. P. W. 1 Bhuneshwar Sao, the son of the deceased, has deposed that at the time of the occurrence he was sitting in his verandah with his brother P. W. 6, Kailash Sao along with P. W. 3 Tulsi Sao and his father Hublal Sao was sitting on the "pinda" of his house. He does not say regarding P. W. 8, the informant, P. W. 4, Hemlal Sao and P. W. 2. Moti Sao sitting with him in the verandah of the house of the deceased and the evidence of P. W. 1 in respect thereof is inconsistent with the averments made in the Fardbeyan. According to P. W. 1 the appellant along with his two associates came there and took out a bomb and hurled it at the deceased and, thereafter, the appellant and his two associates started assaulting thedeceased. He has also deposed to have fled away from there on his roof from where he saw the appellant and his two associates assaulting the deceased with dagger and, thereafter, they had fled away towards east. He has also deposed that he, thereafter, came down from the roof and saw his father dead besmeared with blood having several injuries on the face and chest of the deceased caused by bomb and dagger and a countrymade pistol lying nearby. In para 6 of his evidence he has described the house of several persons in the close vicinity of his house in which there is no reference of the house of Somar Sao from the roof of which P. W. 8, the informant claims to have seen the occurrence. P. W. 1 has further deposed that four bombs were hurled at the deceased. In para 19 of his cross-examination he has deposed that he had seen the assault on the deceased by dagger and there were 10 or 12 blows given by dagger causing injuries on the person of the deceased. P. W. 1 has further deposed that four bombs were hurled at the deceased. In para 19 of his cross-examination he has deposed that he had seen the assault on the deceased by dagger and there were 10 or 12 blows given by dagger causing injuries on the person of the deceased. P. W. 6 Kailash Sao has deposed that at the time of the occurrence he was sitting on the verandah of his house along with P. W. 1 and P. W. 3 and his father was sitting on the "pinda" of the house and he saw Ruplal Sao along with his two associates coming to the place of occurrence with a bag and appellant Ruplal Sao ordered to assault the deceased and he also hurled bomb at the deceased and, thereafter, all the three started assaulting him. He has further deposed that he fled away on the roof from where he saw the appellant assaulting the deceased with dagger and, thereafter, they fled away and he came to the place of occurrence and found the deceased dead and a pistol fallen there. In para 15 of his cross-examination he has deposed that he has seen the appellant and his two associates assaulting the deceased by dagger causing injuries on his face, hand and chest and the assault by dagger was perpetrated on the deceased for 8-10 minutes. P. W. 3 has also deposed that he was sitting on the verandah of the deceased at the time of the occurrence along with P. W. 1, P. W. 6 and P. W. 8 besides other and the deceased was sitting on the "pinda" of his house and all of a sudden a bomb was thrown at the deceased from the southern side and he fled away from there. P. W. 3, however, does not name the appellant and his two associates as a participant in the occurrence. In para 6 of his cross-examination he has contradicted his testimony and deposed specifically that P. W. 8, the informant came to the place of occurrence later on. P. W. 3, however, does not name the appellant and his two associates as a participant in the occurrence. In para 6 of his cross-examination he has contradicted his testimony and deposed specifically that P. W. 8, the informant came to the place of occurrence later on. P. W. 5, Sonia Devi, the widow of the deceased has stated that at the time of the occurrence she was preparing bread and the deceased asked for water and when she was going with the water to the deceased she saw the appellant along with his two associates hurling bomb at the deceased and she fled away from there and came on the roof from where she had seen the appellant and two associates assaulting the deceased. From the evidence of the prosecution witnesses referred to above it is apparent that there is material contradictions and inconsistencies in the evidence of the prosecution witnesses regarding the place where the informant along with alleged ocular witnesses were sitting at the time of the occurrence. According to the informant read with the testimony of P. Ws. 2 and 4 all the alleged ocular witnesses were sitting at the door of Sukar Sao and according to other ocular witnesses they claim to be sitting at the verandah of the house of the deceased. I have already stated above that occurrence can never be witnessed from the house of Sukar Sao in view of the topography of the said house. Thereafter, all the ocular witnesses aforesaid claim to have gone on the roof after hurling of the first bomb at the deceased and soon, thereafter, three bombs were also hurled at the deceased and they claim to have heard the sound of three explosions of the bomb and from there they claim to have seen the assault perpetrated on the deceased by dagger by the appellant and his two associates giving the repeated blows 8-10 times. Surprisingly enough none of the ocular witnesses of the occurrence have sustained any splinter injuries on their person. The deceased has also not sustained any injury on his person caused by explosive substance. The medical witness in para 13 of his evidence has clearly stated that none of the injuries on the person of the deceased can be identified with bomb explosion. The deceased has also not sustained any injury on his person caused by explosive substance. The medical witness in para 13 of his evidence has clearly stated that none of the injuries on the person of the deceased can be identified with bomb explosion. According to the evidence of the ocular witnesses repeated blows by dagger were given on the person of the deceased by the appellant and his two associates but surprisingly enough the medical witness has found only one stab injury on the neck of the deceased. There were a large number of lacerated wounds on the person of the deceased found by the medical witness but none of the alleged ocular witness in their evidence onoath has whispered as to how those lacerated wounds have come to exist on the person of the deceased. Furthermore, none of the ocular witnesses has deposed regarding the firing made from the countrymade pistol but it is queer enough as to how an empty cartridge was found at the place of occurrence. All these facts taken together leads unerringly and unmistakably to the only inference that the aforesaid witnesses of the prosecution who claim to be ocular witnesses of the occurrence had no occasion at all to witness the occurrence and they are highly unreliable witnesses as they are lying on the most material aspect of the occurrence regarding the assault on the deceased. Furthermore, the I. O. has deposed in the most clear and unequivocal terms that he did not find any blood fallen at the place of occurrence where the dead body of the deceased was found. Furthermore, the I. O. has deposed in the most clear and unequivocal terms that he did not find any blood fallen at the place of occurrence where the dead body of the deceased was found. In view of the number of injuries as found by the medical witness on the dead body of the deceased, absence of the blood fallen at the place of occurrence creates a reasonable doubt regarding the alleged occurrence having been taken place on the kachha road in front of the house of the deceased which equally creates reasonable suspicion regarding the place of occurrence of the prosecution case and there appears to be substance in the contention of the learned counsel for the appellant that occurrence might have taken at some other place and from there the dead body has been brought in front of the house of the deceased and a colour has been given to the prosecution case that the occurrence has taken place in front of the house of the deceased. The evidence of the prosecution witnesses is that repeated blows by dagger were inflicted on the person of the deceased by the appellant and his two associates and the medical witness has found only one stab injury on the neck of the deceased which equally casts a cloud of suspicion to the very credibility of the prosecution case regarding the manner of occurrence and at the same time it gives an inkling of the fact that none of the prosecution witnesses has occasion to witness the occurrence. It is equally pertinent to mention here that the medical evidence as deposed by P. W. 9 is definitely not in conformity with the manner of the occurrence as averred in the Fardbeyan (Ext. 7) of P. W. 8, the informant and as deposed by all the alleged ocular witnesses of the occurrence which equally cast a cloud of suspicion to the very credibility of the warp and woof of the prosecution case. ( 11 ) THERE is averment in the Fardbeyan regarding the enmity existing and alive between the parties prior to the occurrence. It has been stated in the Fardbeyan that there were disputes between the deceased and the appellant regarding the house for the last five months of the occurrence and the appellant had intimidated the deceased to be done to death and due to this the deceased has been murdered. It has been stated in the Fardbeyan that there were disputes between the deceased and the appellant regarding the house for the last five months of the occurrence and the appellant had intimidated the deceased to be done to death and due to this the deceased has been murdered. P. W. 8, the informant in para 10 of his evidence has deposed that there was dispute between the appellant and the deceased regarding the land and house and the uncle of the appellant had sold the land and house three years ago to the father of the deceased and the said land was the bone of contention between the parties and the appellant had told the deceased to relinquish the said land and house failing which he will be done to death. P. W. 1 in para 29, P. W. 6 in para 4, P. W. 5 in para 4 and P. W. 4 in para 17 have stated regarding the existing enmity between the appellant and the deceased in respect of the house and land. However, there is no document on the record to evidence the fact of any litigation in respect of the said house and land between the appellant and the deceased. In view of the existence of the said enmity the false implication of the appellant in this case cannot be totally ruled out in the facts and circumstances of this case. Admittedly all the prosecution witnesses who claim to be the ocular witnesses of the occurrence are closely related with the deceased and on scrutiny of their evidence with utmost care and caution it appears that they cannot be termed as ocular witness of the occurrence and they have animus to depose falsely against the appellant. And last but not the least P. W. 8, the informanthas deposed that soon after the occurrence he went to the house of P. W. 7 in village Rangamati and there is Nimiaghat P. S. on his way to the said village but he did not report to the said P. S. regarding the occurrence and, thereafter, he returned to the P. O. village again by passing the said police station in the company of P. W. 7 but no report was made at the P. S. regarding the occurrence. It appears that after the arrival of P. W. 8 at the P. O. village in the company of P. W. 7, the entire matter was deliberated upon in the P. O. village and, thereafter, the informant went to the P. S. and reported the matter regarding the occurrence in question. It further appears from the evidence on the record that P. W. 12, the I. O. had come to the place of occurrence on rumour where the Fardbeyan of the informant was recorded. It, therefore, appears that the earliest version of the occurrence as reported by P. W. 8 to the P. S. appears to have been deliberately suppressed in this case and, therefore, the Fardbeyan (Ext. 7) suffers with the infirmity and it can never be the basis of the prosecution case. Therefore, in the facts and circumstances of this case the entire prosecution case is replete with material contradictions and inconsistencies as well as inherent improbabilities and the prosecution witnesses aforesaid had no occasion at all to witness the alleged occurrence and they cannot be termed as ocular witnesses of the occurrence and they are highly interested and partisan witnesses having animus to depose falsely against the appellant and their testimony is not at all worthy of credit and there is also no ring of truth in their evidence. Therefore, the false implication of the appellant in this case cannot be totally ruled out. There is no legal and reliable evidence on the record to support the prosecution case. The learned Court below did not meticulously consider the evidence on the record in proper perspective and has erred gravely in coming to the finding of the guilt of the appellant. Therefore, the impugned judgment suffers with illegality requiring an interference therein. ( 12 ) THERE is merit in this appeal and it succeeds. The appeal is hereby allowed. The impugned judgment and order of the learned Court below is hereby set aside. The appellant is not found guilty of the charge levelled against him and he is, accordingly, acquitted. Let the appellant be set free forthwith if not wanted in any other case. ( 13 ) LAKSHMAN URAON, J. :- I agree. Appeal allowed. --- *** --- .