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Jharkhand High Court · body

2003 DIGILAW 623 (JHR)

Haridas Mahto v. State of Bihar (now Jharkhand)

2003-05-14

LAKSHMAN URAON, VISHNUDEO NARAYAN

body2003
Judgment Vishnudeo Narayan, J.- The appellants named above have preferred this appeal against the impugned judgment and order dated 3.4.1992 passed in Sessions Trial No. 183 of 1987 by Smt. Shakuntala Sinha, 7th Additional Judicial Commissioner, Ranchi whereby and whereunder they were found guilty for the offence punishable under Section 302/34 of the Indian Penal Code and they were convicted and sentenced to undergo R.I. for life. 2. The prosecution case has arisen on the basis of fardbeyan (Ext.5) of P.W.5, Bhawaneshwar Mahto, the informant and the son of Ganesh Mahto who is the deceased of this case, recorded by S.I., B. Singh, Sonahatu P.S. on 30.6.1986 at 17.00 hours at village- Telawadih regarding the occurrence which is said to have taken place on that very day at 9.00 hours in village Telawadih aforesaid in which Ganesh Mahto was done to death. The formal F.I.R. (Ext. 4) was drawn on that very day at 20.00 hours and on its basis the case was instituted against the appellants. 3. The prosecution case, in brief, is that the informant in the company of his father was getting his land ploughed for sowing paddy by his two ploughmen, namely, P.W.1, Sudhu Mukhiyar and Nand Lal Mukhiyar (since dead) at about 9.00 hours on 30.6.1986 and the said land. situate in Paramojoria Mauza was in poso session of the informant which was acquired by registered sale deed by her mother, Rasu Devi executed by her father, Dukhit Mahto, deceased who was resident of village- Telawadih. It is alleged that all the appellants aforesaid variously armed with 'Lathi' and 'Farsa' came there and prevented them from ploughing the said land and abused them and uttered to kill them by assaulting by 'Lathi' and 'Farsa' and at this the informant and others protested to them. The prosecution case further is that appellant, Hari Das Mahto started assaulting the informant by 'Lathi' indiscriminately on his head which caused bleeding injuries on the head of the informant, who escaped away from there and stayed at some distance and thereafter appellants, Sukhdeo Mahto @ Sukhu, Asharam Mahto and Pashua Mahto surrounded his father Ganesh Mahto and felled him on the ground and appellant, Hari Das Mahto severed the neck of Ganesh Mahto by 'Farsa' as a result of which he died at the spot. It is also alleged that appellant, Asharam Mahto also assaulted Rasu Devi who had come to the place of occurrence by 'Lathi' causing bleeding injury on her head. Lastly it has been contended that both the ploughmen aforesaid besides 8alo Mahto and others have witnessed the occurrence. 4. The appellants have pleaded not guilty to the charge levelled against them and they claim themselves to be innocent and to have committed no offence and they have been falsely implicated in this case due to enmity and the land in question is in possession of the appellants. 5. The prosecution has examined seven witnesses to substantiate its case. P.W.5 8hawaneshwar Mahto, the informant is the son of Ganesh Mahto, the deceased of this case and P.W.3, Rasu Devi is the wife of the deceased. P.W.1, Sudhu Mukhiyar is one of the ploughmen, who is said to be present at the place of the occurrence and ploughing the land in question at the relevant time. The other ploughman, Nand Lal Mukhiyar did not take the witness box as he has died during the pendency of this case. P.W.6, 8alo Mahto and P.WA, Mahendra Mahto claim to be the ocular witness of the occurrence and P.W.6, 8alo Mahto had come to the place of the occurrence from the nearby field where he was getting his cattle grazed and P.WA has come to the place of the occurrence from his nearby field where he was doing cultivation work. P.W.7 is a formal witness who has proved the formal F.I.R. (Ext.4) the fardbeyan (Ext.5), seizure list (Ext.6) and inquest report (Ext.7). P.W.2, Dr. K.P. Srivastava has conducted the post mortem examination on the dead body of the deceased in this case and the post mortem report per his pen is Ext. 1. The I.O. has however, not taken oath in this case for the prosecution. One Kali Nath Mahto has been examined on behalf of the defence. Some documents have also been brought on the record on behalf of the defence and Ext.A is the certified copy of deposition of P.W.6, Balo Mahto in Title Suit No. 175 of 1975. Ext. 8 is the certified copy of the order sheet of Execution Case No. 1 of 1991 between Most. Rasu Devi and Hari Das Mahto and Ext. C is the certified copy of the petition, which is the basis of the said execution case. Ext. Ext. 8 is the certified copy of the order sheet of Execution Case No. 1 of 1991 between Most. Rasu Devi and Hari Das Mahto and Ext. C is the certified copy of the petition, which is the basis of the said execution case. Ext. D is the revisional survey Khatian of Paramjoria Mouza of Khata No. 11 consisting of 31 plots and the said Khata stands jointly recorded in the name of Jitu Mahto and Dukhit Mahto but some of the plots in the said Khata stands recorded in their joint possession whereas some of the plots therein are recorded in separate possession of Jitu Mahto and Dukhit Mahto. 6. Assailing the impugned judgment it has been submitted by the learned counsel for the appellants that the learned court below has failed to consider the evidence on the record in proper perspective meticulously and has erred in coming to the finding of the guilt of the appellants. It has been submitted that there are material contradictions and inconsistencies in the evidence of the alleged ocular witnesses regarding the manner of occurrence, which totally belie the prosecution case, and in view thereof they cannot be termed as ocular witnesses of the occurrence. It has also been submitted that as per the prosecution case there is allegation of only one blow given on the neck of the deceased by 'Farsa' by appellant, Haridas Mahto but the medical witness has found three incised wound on the neck of the deceased and therefore, the very manner of the occurrence is not at all in conformity with the manner of the occurrence. It has further been submitted that there is no allegation of any assault on the person of the deceased by 'Lathi' but the medical witness has found the existence of one lacerated wound on the person of the deceased and, therefore, the manner of occurrence is not at all in conformity with the medical witness which casts a cloud of suspicion to the very credibility of the prosecution case. It has further been contended that P.Ws. It has further been contended that P.Ws. 5 and 3 also claim to be sustained injuries in the said occurrence but there is no iota of evidence on the record in the absence of any injury report in respect thereof and they have been set up as eyewitnesses with mala fide motive and intention only with a view to falsely implicate the appellants in this got up case due to the enmity which was existing and alive between the parties since long prior to the occurrence and they were also on litigating terms. It has also been submitted that the land, which is said to be the place of occurrence of this case, was admittedly in cultivating possession of the appellants. The further contention of the learned counsel for the appellants is that P.Ws. 5 and 3 are the son and widow of the deceased and P.W.4 is the father-in-law of the informant and P.W.6 is also the husband of the cousin sister of the deceased and they are highly interested and partisan witnesses of the occurrence and P.W.1 is the ploughman of the deceased and no independent, natural and competent witness of the occurrence has come forward to corroborate the testimony of the aforesaid highly interested witnesses closely related with the deceased. It has also been contended that due to the non-examination of the I.O. in this case, the place of occurrence has not been established and there is no report of the Serologist to prove the fact that the recovered blood stained earth contains human blood therein and even the witnesses of seizure have not come to support the prosecution case in respect thereof and the appellants stand seriously prejudiced due to the non-examination of the I.O. as they were debarred from eliciting facts in his cross-examination showing their innocence. It has further been submitted that the Fardbeyan of P.W.5, the informant is surrounded with suspicious circumstances and is equally hit under the provisions of Section 162 of the Code of Criminal Procedure as admittedly as per the evidence of P.W.5 in para-4, P.W.4 in para6, and P.W.3 in para-7 an information regarding the occurrence was given at the police station and thereafter the I.O. had come to the place of occurrence where subsequently the Fardbeyan of the informant was recorded and as such there is every probability of embellishment in the fardbeyan which can never form the basis of the case. Lastly, it has been contended that as per the prosecution case, occurrence is said to have taken place at 9.00 hours but the fardbeyan (Ext.5) has seen the light of day at 17.00 hours and there is inordinate unexplained delay in recording the fardbeyan which casts a cloud of suspicion to the very credibility of the prosecution case and as such the impugned judgment is unsustainable. 7. Refuting the contention of the learned counsel for the appellants, it has been submitted by the learned A.P.P. that in this case there is ocular testimony of P.W.5; the informant corroborated by P.W.3, P.W.1, P.W.4 and P.W.6 who are the ocular witnesses of the occurrence and they were present at the place of occurrence during the course of commission of the occurrence and minor contradictions and inconsistencies appearing in their evidence is very trivial in nature which does not touch the core of the prosecution case and the P.O. land was in cultivating possession of the deceased and at the time of the occurrence the said P.O. land was being cultivated by the informant for sowing paddy and all the appellants in furtherance of their intention have assaulted P.W.5, the informant, P.W.3, Rasu Devi, the mother of the informant, and appellant Haridas Mahto has committed murder of the deceased by inflicting injury on the neck of the deceased by 'Farsa' and the medical witness has found the injury on the neck of the deceased which according to him is the cause of death of the deceased and viewed thus, there is no illegality at all in the impugned judgment. 8. 8. It will admit of no doubt that there is enmity existing and alive between the parties for the last several years prior to the occurrence and they were on litigating terms in respect of the land. P.W.5, the informant in para-6 of his evidence, has deposed that they were ploughing Plot Nos. 144 and 145 for sowing paddy and the occurrence has taken place on the said land. He has further deposed that there is road adjacent north of the aforesaid plots. P.W.1 in para-3, P.W.3 in para2 and P.W.4 in para-5 have also deposed that the road is adjacent north of the aforesaid plots. It appears from Ext.D that Plot Nos. 144 and 145 appertain to Khata No. 11. Ext. D is the revisional survey Khatian of Paramjoria Mouza of Khata No. 11 and it stands jointly recorded in the name of Jitu Mahto and Dukhit Mahto and some of the plots therein stand recorded in their joint possession whereas some of the plots therein are recorded in their separate possession. It appears from the evidence on the record that appellant, Haridas Mahto is the son of Jitu Mahto aforesaid whereas P.W.3, Rasu Devi, the widow of the deceased, is the daughter of Dukhit Mahto. Admittedly, there had been a proceeding under Section 145 Cr.P.C. between P.W.3, Rasu Devi and appellant, Haridas Mahto in respect of the land of Khata No. 11 aforesaid, which has terminated in favour of the appellants. P.W.5 in para-8 has further deposed that there had been a title suit between the parties in respect of the said land. P.W.3 in para-2 of her evidence has deposed that she had filed a title suit in the court, which was decreed, and the appellants had preferred appeal against the said decree, which they have lost. Ext. B is the order sheet along with the execution petition of Execution Case No. 1 of 1991 filed by P.W.3, Rasu Mahatian against appellant, Haridas Mahto. It appears that Rasu Devi has filed Title Suit No. 175/15 of 75/78 against appellant, Haridas Mahto son of Jitu Mahto and the said suit was decreed on 29.6.1979 and P.W.3 filed the said execution case on 25.4.1991 for execution of the said decree, praying therein for recovery of possession over the land in question besides other land, the details of which have been annexed with the said execution petition. It, therefore, appears from the averments made in the execution petition that P.W.3, Rasu Devi was definitely not in possession of the P.O. land on the date of the alleged occurrence i.e. 30.6.1986. P.W.5 in para 10 of his evidence has deposed that one decimal of land of Plot No. 144 was ploughed in which one mound of paddy was sown. In para-13, he has deposed that he was in cultivating possession of the plots aforesaid in spite of the adverse order passed against him in the proceeding under Section 145 Cr.P.C. P.W.6 in para-5 of his evidence, has deposed that there had been several cases between P.W.3, Rasu Devi and appellant, Haridas Mahto in respect of the land in which the occurrence has taken place. He has further deposed that it is not a fact that the said land was always in cultivating possession of the appellants. His evidence is further to the effect that the said land was in possession of P.W.3, Rasu Devi. In para-5 of his evidence, P.W.6 has categorically denied that in the title suit aforesaid he has deposed that the said land was under forceful possession of the appellants. P.W.6, Balo Mahto has figured as witness no.6 in Title Suit No. 175 of 1975 for the plaintiff. In para-10 of his deposition (Ext.A) P.W.6 has categorically deposed that the appellants were forcibly cultivating the two plots and P.W.3 Rasu Devi does not cultivate the said land. He has also deposed that dispute arose between the appellants on one hand and P.W.3, Rasu Devi on the other hand from that very year in which her father, Laloo Mahto has died and from that very year appellants are forcibly cultivating the land. He has also deposed in para-11 of his deposition in the said Title Suit that there was no dispute in the lifetime of Laloo Mahto. P.W.1, the alleged ploughman of the deceased has deposed that the said land was fallow when he had gone to plough the said land. He has also deposed in para-11 of his deposition in the said Title Suit that there was no dispute in the lifetime of Laloo Mahto. P.W.1, the alleged ploughman of the deceased has deposed that the said land was fallow when he had gone to plough the said land. It, therefore, appears from the evidence referred to above the aforesaid land was in possession of the appellants much prior to the occurrence in question and the possession of the appellants was established as per order passed in the proceeding under Section 145 Cr.P.C. in their favour and thereafter Title Suit No. 175 of 1975 was tiled by P.W.3, Rasu Devi in respect of the aforesaid lands besides other land which was decreed on 29.6.1979 and P.W.3, Rasu Devi filed Execution Case No.1 of 1991 for effecting D.P. for recovery of possession over the said plots. Therefore, the informant and her mother, P.W.3 cannot be said to be in possession over the aforesaid land on the date of the occurrence and the aforesaid land was definitely in cultivating possession of the appellants on the date of the occurrence. 9. Let us now scan the evidence regarding the manner of occurrence in the background of the admitted enmity existing and alive between the parties for the last several years prior to the occurrence. Before we advert to the evidence of the prosecution case, it is pertinent to dilate at the very outset regarding the medical evidence. P.W.2, Dr. K. P. Srivastava has deposed to have conducted the post mortem examination on the dead body of the deceased on 2.7.1986 at 11.00 hours and has deposed to have found the following ante mortem injury on the person of the deceased:- (A) Incised wounds:- (i) 11 1/2 x 2 1/2 cm. situated on front of neck transversally. Weapon had cut the soft tissues, respiratory passage, food passage, blood vessel and cervical vertebrae no. 7 partially. (ii) 12 x 3 c.m. situated in front of neck transversally. The weapon had cut soft tissue and 6th cervical vertebrae completely, spinal cord and blood vessel and other soft tissues. (iii) Linear cut mark 11 c.m. long and 7 c.m. long situated in front of left shoulder. (B) Internal :- There was diffused contusion of right and left temporal parietal scalp, crack fracture of right and left temporal parietal bone. The weapon had cut soft tissue and 6th cervical vertebrae completely, spinal cord and blood vessel and other soft tissues. (iii) Linear cut mark 11 c.m. long and 7 c.m. long situated in front of left shoulder. (B) Internal :- There was diffused contusion of right and left temporal parietal scalp, crack fracture of right and left temporal parietal bone. There was presence of blood and blood clot in the cervical cavity. The medical witness has further deposed that the incised wounds aforesaid were caused by sharp cutting weapon may be by 'Farsa' and the injury mark- (B) aforesaid has been caused by hard and blunt object and death of the deceased is due to injuries appearing on his neck. He has also deposed that the time elapsed since death of the deceased is within 24 to 72 hours from the post mortem examination. The post mortem report (Ext. 1) corroborates the testimony of the medical witness. In para-2 of his cross-examination, the medical witness has very categorically and in the most unequivocal terms has deposed that all the incised wounds aforesaid are not possible by single blow. 10. It has been averred in the fardbeyan that the informant and the deceased along with their two ploughmen, namely, P.W.1, Sudhu Mukhiyar and Nand Lal Mukhiyar had come to the said land for sowing paddy at about 9.00 hours on the day of the occurrence and both the ploughmen aforesaid were ploughing the land aforesaid in their presence and all the appellants armed with 'Lathi' and 'Farsa' came there and they obstructed them to plough the land and abused them and uttered to kill them by making assault by 'Lathi' and 'Farsa'. On their protest, appellant, Haridas Mahto who was armed with 'Lathi' started assaulting the informant on his head indiscriminately by 'Lathi' causing bleeding injuries and the informant escaped away from there to some distance. There is further averment in the fardbeyan that thereafter appellants, Sukhdeo Mahto, Asharam Mahto and Pashua Mahto surrounded the deceased and felled him on the ground and appellant Haridas Mahto severed the neck of the deceased as a result of which the deceased died at the place of occurrence immediately. It is also alleged in the fardbeyan that P.W.3, Rasu Oevi had come to the place of occurrence and she was also assaulted on her head by appellant, Asharam Mahto causing bleeding injury. It is also alleged in the fardbeyan that P.W.3, Rasu Oevi had come to the place of occurrence and she was also assaulted on her head by appellant, Asharam Mahto causing bleeding injury. P.W.5, the informant has deposed that when they were sowing paddy in the field, all the appellants had come to the place of occurrence and appellant, Haridas Mahto was armed with 'Farsa' and rest of the appellants were armed with 'Lathi' and appellant, Haridas Mahto assaulted him by 'Lathi' causing bleeding injury on his head and he escaped 10 to 15 steps away distance from the said place of occurrence. P.W.3 has deposed that when the paddy was being sown in the field, all the appellants came there and appellant, Haridas Mahto was armed with 'Farsa' and rest of the appellants were armed with 'Lathi' and they all assaulted the informant by 'Lathi' and the informant escaped away from there to some distance. It is relevant to mention here that P.W.3 does not specifically state in her evidence on oath that appellant, Haridas Mahto had assaulted the informant indiscriminately by 'Lathi' causing bleeding injuries on his head. P.W.1 in his evidence on oath has deposed that appellant, Haridas Mahto assaulted the informant by 'Lathi'. P.W.4 has deposed that all the four appellants had come to the place of occurrence and appellant, Haridas Mahto was armed with 'Farsa'and rest of the appellants were armed with 'Lathi', bow and arrow. The averment made in the fardbeyan does not at all whisper regarding the appellants having been armed with bow and arrow. P.W4 has further deposed that the appellants first assaulted the informant and the informant fell down. P.W.4 does not state in his evidence regarding the assault on the head of the informant indiscriminately by 'Lathi' by appellant, Haridas Mahto causing bleeding injuries. P.W.6 has deposed that the informant along with his father Ganesh Mahto were getting the land ploughed by three ploughmen. This part of the evidence of P.W.6 is in conflict with the prosecution case in respect thereof as averred in the fardbeyan. The prosecution case is very specific that only two plougl1men were with the deceased and the informant ploughing the land. P.W.6 has further deposed that appellant, Haridas Mahto was armed with Tangi and rest of the appellants were armed with 'Lathi'. The prosecution case is very specific that only two plougl1men were with the deceased and the informant ploughing the land. P.W.6 has further deposed that appellant, Haridas Mahto was armed with Tangi and rest of the appellants were armed with 'Lathi'. Here again P.W.6 materially contradicts the prosecution case regarding the weapon with which appellant, Haridas Mahto was armed with. P.W.6 has also deposed that the appellants assaulted the informant by 'Lathi'. Here it is relevant to mention here that P.W.6 does not say about appellant, Haridas Mahto assaulting the informant indiscriminately by 'Lathi' causing bleeding injuries on his head. P.W.6 has also deposed that after sustaining injuries P.W.S, the informant escaped away from there and came to him where he was getting his cattle grazed. There is no evidence of any medical witness on the record to corroborate the existence of the injuries on the head of the informant sustained by him in the course of occurrence. P.W.S in his evidence on oath does not at all whisper as to whether his injuries were examined by any doctor or not. P.W.S, the informant has deposed in his evidence on oath that he has left the place of occurrence for the police station at 10.30 o'clock in the day for going to the police station where he reached between one and half past one. In this connection, his evidence appearing in paras-4 and 5 of his deposition is referred to. It is surprising as to why he was not sent to any doctor for treatment of his injuries by the police. This is a circumstance of unimpeachable character which casts a cloud of suspicion to the very credibility of the prosecution case regarding any indiscriminate assault perpetrated on the head of the informant causing bleeding injuries. It is equally pertinent to mention here that P.W.4 and P.W.6 have also contradicted in material particulars regarding the weapon with which the appellants were armed with in their evidence on oath which is inconstant (sic-inconsistent?) as per the averments made in the fardbeyan as well as the testimony of P.Ws. 1, 3 and 5 in respect thereof. P.W.S has deposed that appellants, Pashua Mahto, Asharam Mahto and Sukhdeo Mahto felled the deceased on the ground and appellant Haridas Mahto severed the neck of his father Ganesh Mahto sawing it by 'Farsa' causing his instantaneous death at the place of occurrence. 1, 3 and 5 in respect thereof. P.W.S has deposed that appellants, Pashua Mahto, Asharam Mahto and Sukhdeo Mahto felled the deceased on the ground and appellant Haridas Mahto severed the neck of his father Ganesh Mahto sawing it by 'Farsa' causing his instantaneous death at the place of occurrence. P.W.5, the informant, however, does not say about the deceased having been surrounded by the appellants before he was felled on the ground by the appellants. P.W.3, Rasu Devi, the mother of the informant and the widow of the deceased has deposed that all the four appellants had surrounded the deceased and appellant, Pashua Mahto had caught the legs of the deceased, appellant Asharam Mahto had caught the hands of the deceased and appellant, Haridas Mahto cut the neck of the deceased. P.W.3, however, does not say regarding the deceased having been felled on the ground by the appellants. The manner in which the assault was perpetrated on the deceased as deposed by P.W.3, does not stand supported either by the averments made in the fardbeyan and also as per the evidence of P.W.5, the informant. P.W.1 has deposed that appellants, Pashua Mahto, Asharam Mahto and Sukhdeo Mahto felled the deceased on the ground and appellant, Haridas Mahto severed the neck of the deceased by sawing it by 'Farsa' and he does not say about the manner of assault on the deceased as deposed by P.W.3, Rasu Devi, the widow of the deceased. P.W.4 has deposed that all the appellants surrounded the deceased and appellants, Asharam Mahto and Sukhdeo Mahto felled the deceased on the ground and they remained catching hold of him and appellant, Haridas Mahto severed the neck of the deceased by 'Farsa'. However, this witness does not state regarding appellant, Sukhdeo Mahto having any over1 act in the commission of the murder of the deceased and therefore, he contradicts the testimony of P.Ws. 5, 1, 3 and also of P.W.6. However, this witness does not state regarding appellant, Sukhdeo Mahto having any over1 act in the commission of the murder of the deceased and therefore, he contradicts the testimony of P.Ws. 5, 1, 3 and also of P.W.6. The evidence of P.W.6 is to the effect that all the appellants assaulted Ganesh Mahto by 'Lathi' and due to the said assault by 'Lathi' Ganesh Mahto fell down and thereafter appellant, Sukhdeo Mahto caught the head of the deceased and appellant, Asharam Mahto pressed the chest of the deceased and appellant, Pashua Mahto caught the legs of the deceased and thereafter appellant, Haridas Mahto severed the neck of the deceased as a result of which the deceased has died. P.W. 6 gives a quite different account regarding the manner of assault on the deceased and, therefore, he contradicts the testimony of other alleged ocular witnesses referred to above. It, therefore, appears that all the alleged ocular witnesses of the alleged assault on the person of the deceased have contradicted each other in their testimony regarding the manner of assault on the deceased. P.W.3, Rasu Devi has deposed specifically that only one blow by 'Farsa' was inflicted on the neck of the deceased. P.W.2, the medical witness has, however, found existence of three incised wounds on the neck of the deceased and according to the medical witness, all the three injuries appearing in the neck of the deceased cannot be caused by single blow. The medical witness has also deposed that incised wound nos. (i) and (ii) may be the outcome of different blows. The medical witness does not whisper regarding the injuries on the neck of the deceased caused by sawing by any sharp cutting weapon. The medical witness has also deposed regarding the existence of one diffused contusion of right and left temporal parietal scalp causing crack fracture of the right and left temporal parietal bone having presence of blood and blood clot in the cervical cavity. But P.Ws. 5, 3, 1 and 4 do not at all whisper in the evidence on oath regarding any assault perpetrated on the head of the deceased by 'Lathi' by either of the appellants. Therefore, the manner of the occurrence as deposed by the alleged ocular witnesses is not at all in conformity with the medical evidence as deposed by P.W.2, Dr. 5, 3, 1 and 4 do not at all whisper in the evidence on oath regarding any assault perpetrated on the head of the deceased by 'Lathi' by either of the appellants. Therefore, the manner of the occurrence as deposed by the alleged ocular witnesses is not at all in conformity with the medical evidence as deposed by P.W.2, Dr. K. P. Srivastava which casts a cloud of suspicion to the very credibility of the prosecution case regarding its manner of occurrence and at the same time it gives an inkling of the fact regarding the witnesses aforesaid that they are not the ocular witnesses of the occurrence having occasion to witness the occurrence. P.W.5 has also deposed in his evidence on oath regarding the assault having been made on the head of P.W.3, Rasu Devi caused by 'Lathi' by appellant, Asharam Mahto. P.W.1 in his evidence on oath has deposed that all the appellants have assaulted P.W.3, Rasu Devi. P.W.3 has deposed that she was assaulted by all the appellants by 'Lathi' when she had gone to rescue her husband in the course of occurrence. Similar is the evidence of P.W.4. However, P.W.6, does not whisper in evidence on oath regarding any assault on P.W.3, Rasu Devi by 'Lathi' by the appellants. Therefore, the prosecution witnesses contradict each other in their testimony regarding the assault on P.W.3, Rasu Devi either by appellant, Asharam Mahto only or by all the appellants. There is no evidence on the record to show regarding the existence of any injury appearing on the head of P.W.3, Rasu Devi in the absence of any medical evidence on the record in respect thereof. Therefore, the evidence of the prosecution witnesses is replete with contradictions and inconsistencies in material particulars which casts a cloud of suspicion to the very credibility of the warp and woof of the prosecution case and it equally belies the manner of occurrence as averred in the fardbeyan (Ext.5). Therefore, the aforesaid witnesses cannot be termed as ocular witnesses of the occurrence in view of the material contradictions and inconsistencies inherent in their testimony and viewed thus, the false implication of the appellants in this case cannot be totally ruled out due to the enmity between the parties for the last several years prior to the occurrence. Therefore, the aforesaid witnesses cannot be termed as ocular witnesses of the occurrence in view of the material contradictions and inconsistencies inherent in their testimony and viewed thus, the false implication of the appellants in this case cannot be totally ruled out due to the enmity between the parties for the last several years prior to the occurrence. Furthermore, no independent witness of the vicinity of the place of occurrence has come forward to corroborate the testimony of P.Ws. 5, 3, 4, and 6 who are the close relatives of the deceased and P.W.1 being the plough man of the deceased and all the alleged ocular witnesses are highly interested and partisan witnesses and they have animus to depose falsely in this case against the appellants and their testimony is not worthy of credit in the facts and circumstances of the case. Moreover P.W.3 has deposed categorically that she has not seen P.W.4 and P.W.6 there at the time of the occurrence which equally rules out their presence at the place of occurrence. Therefore, there appears no ring of truth in the evidence of the aforesaid alleged ocular witnesses of the occurrence. 11. The alleged occurrence is said to have taken place at 9.00 hours on 30.6.1986 and fardbeyan (Ext.5) of P.W.5, the informant has seen the light of day at 17.00 hours and there is unexplained abnormal delay in respect thereof. P.W.5 in para-4 of his testimony has deposed that he has reached the police station between one and half past one in the day of the occurrence with P.W.4. Mahendra Mahto where his fardbeyan was recorded. P.WA in para-6 has deposed that he along with the informant had gone to the police station after the occurrence and P.W.5 gave his statement regarding the occurrence which was recorded by the police on which P.W.5 has put his signature. P.W.3, Rasu Devi in para-7 of her evidence has deposed that P.W.5, the informant, had gone to the police station where the information regarding the occurrence was given. It appears from Ext.5, the fardbeyan of this case that it was recorded on the statement of P.W.5, the informant at village-Telawadih at 17.00 hours on 30.6.1986 and this fardbeyan is the basis of this prosecution case. In view of the evidence of P.Ws. It appears from Ext.5, the fardbeyan of this case that it was recorded on the statement of P.W.5, the informant at village-Telawadih at 17.00 hours on 30.6.1986 and this fardbeyan is the basis of this prosecution case. In view of the evidence of P.Ws. 5, 4 and 3 referred to above that the fardbeyan of the informant regarding the said occurrence was earlier reduced into writing at the police station between one and half past one on that very day and the said fardbeyan is earlier in time which has not been brought on the record and it stands deliberately withheld for the reasons best known to the prosecution. Therefore, Ext. 5, the fardbeyan. which is the basis of the prosecution case is subsequent to the recording of the fardbeyan of the informant at the police station and therefore, Ext. 5 in the facts and circumstances of the case read with the evidence of P.Ws. 5, 3 and 4 is shrouded with suspicious circumstances and it cannot form the basis of the prosecution case hit under the provision of Section 162 of the Code of Criminal Procedure being the subsequent statement of the informant. And last but not the least, the I.O. has not taken oath in this case in support of the prosecution case and the appellants stand seriously prejudiced in the facts and circumstances of the case as they stand debarred of eliciting the facts showing their innocence in the cross-examination of the I.O. and also contradictory (sic) the evidence of the alleged ocular witnesses with their earlier statements recorded by the I.O. under Section 161 of the Code of Criminal Procedure. Therefore, in the facts and circumstances of the case, the appellants stand seriously prejudiced due to the non-examination of the I.O. in this case. Therefore, the impugned judgment suffers with manifest illegalities. The learned court below did not properly and meticulously scrutinize the evidence on the record with due care and caution and has committed a manifest error in coming to the finding of the guilt of the appellants. As such, the impugned judgment is unsustainable. 13. I see merit in this appeal and it succeeds. The appeal is hereby allowed. The impugned judgment is hereby set aside. All the appellants are found not guilty to the charge levelled against them and they are, accordingly, acquitted. Appellant nos. As such, the impugned judgment is unsustainable. 13. I see merit in this appeal and it succeeds. The appeal is hereby allowed. The impugned judgment is hereby set aside. All the appellants are found not guilty to the charge levelled against them and they are, accordingly, acquitted. Appellant nos. 2, 3, and 4, namely, Asharam Mahto, Pashua Mahto and Sukhdeo Mahto are hereby discharged from the liabilities of their bail bonds. Appellant no. 1, Haridas Mahto is hereby ordered to be set free forthwith, if not wanted in any other case. Lakshman Uraon, J.-I agree.