Judgment Prabhat Kumar Sinha, J. 1. The appellants, aforesaid, were tried by the Court of Second Additional Sessions Judge, Vaishali at Hajipur along with three others who, by the judgment under consideration, were acquitted of the charge framed against them whereas the appellants were convicted under Section 302 read with Section 34 of the Indian Penal Code (the code, inshort) and sentenced to undergo rigorous imprisonment for life, each. 2. The prosecution case as coming out of the fardbeyan (Exhibit-4) of the informant, Doman Bhagat (PW 6), is that his cow-shed was situated in his field which was adjacent to the flour mill and cow-shed belonging to appellant Ramdeo Singh. Over his cow-shed three phase electrical wiring crossed through an electrical pole situated about five to seven yards away from where his father Radhey Shyam Bhagat, the deceased, was giving fodder to the animals at which time, at about 11.30 a.m., the appellants along with other accused came and appellant Lotan Singh was asked to hook electrical wire, a method used for consuming electricity illegally. But since there was enmity between the two sides, cases going on between them, and having confabulated together, appellant Lotan Singh was a view to murder the informants father by electrocuting him, snatched away live wire from the pole with the help of his bamboo pole and on asking of his father he threw the wire upon the body of his father resulting in his instant death which incident the informant has seen from his darwaza. The incident was also seen amongst others named in the First Information Report, by PW 1, Tapeshwar Singh and PW 2, Saryug Ram. 3. The defence of the appellants as well of other accused facing trial, as per suggestion thrown to the informant, was that the electrical wire had broke and fallen down, accidentally which the deceased wanted to move away with the help of lathi but somehow he came into contact with the naked wire and was electrocuted, but since there was enmity between the parties, the appellants and other family members were falsely implicated. Besides the witnesses named above Awadhesh Singh, claimed to be eye-witnesses, is PW 3, whereas PW 5 Sadhu Rai is a chaukidar who had come to the place of occurrence after the electrocution had taken its toll whereas PW 4, Kameshwar Pd. Singh, did not support the prosecution case, thus declared hostile. Besides the witnesses named above Awadhesh Singh, claimed to be eye-witnesses, is PW 3, whereas PW 5 Sadhu Rai is a chaukidar who had come to the place of occurrence after the electrocution had taken its toll whereas PW 4, Kameshwar Pd. Singh, did not support the prosecution case, thus declared hostile. The doctor conducting autopsy upon the dead body (Dr. Sushil Kumar Sinha) is PW 7 and PW 8 is Ram Nihora Thakur, the Investigating Police Officer. 4. First of all it was argued by the learned counsel for the appellants that the supportive witnesses were either relative of the deceased or were interested witnesses, some on inimical terms with the appellants. PW 2 is not said to be related to the informant but he has said, while claiming that he had no quarrel with the informant side, that his way (to house) was through the front of the house of the accused but they did not allow him to pass through that. PW 1, has admitted that he was brother of Kapildeo Singh, whereas PW 3 is son of Kapildeo Singh. It was pointed out that PW 1 had admitted (Para 16) that the appellant (Ramdeo Singh) had filed a criminal case against the sons of Kapildeo Singh. The informant admitted that the appellant, Ramdeo Singh, was son-in-law of co-villager Ramdas Singh and lived on his inlaws land. But he showed his ignorance when asked that there was a title suit on the land in which PW 1 and his father Badan Singh were defendants. In that regard the defence has filed Exts. C and D. PW 3 also has admitted that Badan Singh was his grand father and PW 1 and Kapildeo Singh were his sons, he himself being son of Kapildeo Singh. He also admitted that Ramdeo Singh was son-in-law to the village who had settled there. 5. It was also pointed out that in the FIR itself enmity had been admitted and PW 6, the informant, in his evidence has described the cases in between the two sides. 6. He also admitted that Ramdeo Singh was son-in-law to the village who had settled there. 5. It was also pointed out that in the FIR itself enmity had been admitted and PW 6, the informant, in his evidence has described the cases in between the two sides. 6. It was also argued on behalf of the appellants that PWs 1, 2 and 5 had developed a new case when they, claimed in the Court that Radhey Shyam Bhagat was purposely killed by Lotan Singh at the behest of Ramdeo Singh, though in their statements before police they had admitted that it was a case of accidental death. In this context it was also pointed out that the charge-sheet, after investigation, was filed under Section 304-A of the Code and the learned Court took cognizance of offence accordingly, but in a revision against that, the Magistrate was directed to take cognizance of offence under Section 302 of the Code which was complied PW 1, when his attention was drawn towards his statement before police, he claimed that he had told the police that Ramdeo Singh had directed Lotan Singh to throw the wire upon the body of the deceased at which Lotan Singh had thrown the electric wire upon Radhey Shyam Bhagat. PW 8, Investigating Officer, confirmed that PW 1 had not made these allegations in his statement under Section 161 of the Code of Criminal Procedure. 7. Similarly, attention of PW 2 was drawn towards his previous statement (para 5) and PW 8 confirmed that this witness had not told him that Lotan Singh had pulled the wire with laggi or when Ramdeo Singh told him to throw that upon the deceased, as he was enemy. Lotan Singh had thrown the live-wire which had encircled the deceased. 8. PW 5, chowkidar, in his statement had said that when on hulla he reached there he saw the live-wire arround the body of the deceased, whom he found to be dead. He said that many persons including PWs 1. 2, 3 and 6 had told him that Lotan Singh had pulled away the live wire with his bamboo-pole and had thrown that over the body of Radhey Shyam Bhagat, killing him. He asserted that he told so before the police also. He said that many persons including PWs 1. 2, 3 and 6 had told him that Lotan Singh had pulled away the live wire with his bamboo-pole and had thrown that over the body of Radhey Shyam Bhagat, killing him. He asserted that he told so before the police also. When the Investigating Officer was asked about that he denied that any such statement was made by PW 5 before him, but claimed that this witness had told that wire had broken and came down to the field of the informant which accidentally had caused death of the deceased. 9. If the witnesses are on inimical terms or interested ones, that alone will not make their evidence unworthy of reliance, but before accepting their testimonies the same have to be evaluated with more care and caution. The evidence of such witness must be trustworthy, having aura of truth and if the Court finds it to be that, verdict of guilt can be handed down against the accused. 10. For the contradictions that have been brought on record regarding the evidences of PWs 1, 2 and 5, it is difficult to rely upon the same since it appears that for the first time in the Court they have claimed that the appellants had caused death of Radhey Shyam Bhagat with criminal intent. 11. The evidence of witnesses, in so far as the actual occurrence is concerned, may further be seen. PW 1 has said that he saw that all the accused including the two appellants were standing near bathan of Radhey Shyam Bhagat at which time Lotan Singh came there with electric wire and was hooking that to the overhead wire with laggi at which the overhead wire snapped and fell down. Therefore, according to this witness, the coming down of the live wire was not intended. But thereafter this witness said that Ramdeo Singh told Lotan Singh to throw the wire upon the body of his enemy at which Lotan Singh threw the wire, with the help of the bamboo pole, upon the body of Radhey Shyam Bhagat who was feeding his catties. 12. But thereafter this witness said that Ramdeo Singh told Lotan Singh to throw the wire upon the body of his enemy at which Lotan Singh threw the wire, with the help of the bamboo pole, upon the body of Radhey Shyam Bhagat who was feeding his catties. 12. PW 2 said that Lotan Singh, for running his television, was connecting a hook to the overhead wire in presence of other accused at which time Radhey Shyam Bhagat came there to feed his catties after which Lotan Singh pulled down the wire, breaking that, whereafter on order of Ramdeo Singh he threw the wire on the body of Radhey Shyam Bhagat which encircled him. So far as this witness is concerned, Lotan Singh was not trying to snap off the live-wire but was trying to hook electrical wire for running his television but he purposely pulled down the wire when he saw that the deceased had come to his bathan. He also claimed that the house of Ramdeo Singh had no electrical connection. PW 3 has said that at the time of occurrence he saw Lotan Singh taking electrical connection by hooking wire to the overhead pole when, nearby, Radhey Shyam Bhagat, in the open bathan, was feeding his catties. He said that the overhead wire, when the hook was being attached, made some sound (Charcharane laga) and broke down but remained attached to the laggi (in the hand of Lotan Sing). This witness said that on the asking of Ramdeo Singh, Lotan Singh threw the wire upon the deceased. He also said that other three accused who were acquitted had also ordered for throwing of the wire upon the deceased and also claimed that he had made such statement before the police but the Investigating Officer, when asked about that, confirmed that he had not said so for the other three accused. This witness also admitted that he had given his statement to the police one day after the occurrence. 13. Significantly this witness said that he was cutting grass at the time of occurrence in a field to the west of the place of occurrence and said that the informant had come at the place of occurrence five minutes after the death of Radhey Shyam Bhagat whereafter PWs 1, 2 and 5, amongst other persons, had come. 13. Significantly this witness said that he was cutting grass at the time of occurrence in a field to the west of the place of occurrence and said that the informant had come at the place of occurrence five minutes after the death of Radhey Shyam Bhagat whereafter PWs 1, 2 and 5, amongst other persons, had come. This witness ruled out presence of witnesses at the place of occurrence when it did take place. This witness also admitted that Lotan Singh in his hand had a bamboo pole to the length of eleven and half cubit. He also admitted that the wire had snapped at the junction of the pole. According to PW 3, Lotan Singh was taking illegal connection but accidently the overhead wire snapped but remained attached to the bamboo pole of Lotan Singh. As already seen other witnesses had said that electrical wire had come down to the field. 14. According to this witness Radhey Shyam Bhagat was there from before whereas as per PW 2 the deceased had come there while the appellant Lotan Singh was taking illegal connection. 15. PW 6, the informant, said that from his darwaja he saw that his father was feeding the animals at the bathan at which time Lotan Singh was hooking wire with the help of laggi at which time other accused including Ramdeo Singh came there. He said that as the overhead wire was pulled, it snapped from near the pole and fell down. Ramdeo Singh thereafter ordered and Lotan Singh threw the wire over the body of the deceased, killing him. 16. He claimed that the appellants used to consume electricity by the aforesaid illegal means, and also named the people who were living around the place of the occurrence. He also said that when the wire fell down, it was jumping. He also said that oxen were sitting on both the sides of their eating pot (naad) and the electrical wire had fallen down just below the naad in between the two oxen and at that time his father was feeding the animals. He also said that the wire had encircled his father and had pulled him away upto half laggi, and at that time also the electrical wire was jumping up to one cubit. 17. He also said that the wire had encircled his father and had pulled him away upto half laggi, and at that time also the electrical wire was jumping up to one cubit. 17. Therefore, it is clear that the different witnesses have given different versions as to how the wire got snapped, whether with use of force or accidentally. From the evidence of informant it is manifest that the broken live wire had fallen quite adjacent to the naad where the deceased was also present. This has to be seen in the context of the defence that wire had broken down and accidentally had fallen over the deceased, electrocuting him. 18. That the death was caused by electrocution has not been denied and also stands supported by the evidence of PW 7, Dr. Sushil Kumar Sinha. 19. To further appreciate the evidence on record the place of occurrence as visited by PW 8 may be seen. 20. PW 8 has said that the place of occurrence was the vacant field in which informant had his bathan in which, towards north-east a cemented naad existed, and towards north and south of that naad he found poles for tying down the animals. Towards south of the naad at about 10-15yards there was a boring of the informant. About 5-7 yards to the northeast of the naad there was ridge of the field and adjacent north there was the field of Ram Chandra Singh, brother of Ramdeo Singh with an electrical pole upon it having three phase electrical wiring going towards west-south. On this pole he found that one phase of line was broken from the insulator and was lying down 15 to 20 feet west to the naad. The end of the wire at the pole from where the wire on ground had snapped was molten. This wiring also had gone over the field of the victim. 21. There is much force in the argument of the learned counsel for the appellants that the entire story is not natural because as per allegations first appellant Lotan Singh was hooking wire with the overhead wire and thereafter the wire fell down on the earth, which is the evidence by majority of witnesses. 21. There is much force in the argument of the learned counsel for the appellants that the entire story is not natural because as per allegations first appellant Lotan Singh was hooking wire with the overhead wire and thereafter the wire fell down on the earth, which is the evidence by majority of witnesses. Thereafter, Ramdeo Singh ordered for throwing the wire upon the deceased and then Lotan Singh placed the wire on ground upon his pole, aimed that at the deceased, and threw the same. It was argued that, at least having come to know about intention of the accused persons, there was still time for the deceased to flee away from the place of occurrence and had he fled away even to some distance, the occurrence in the manner as alleged could not have taken place. On the other hand there is evidence of the informant that the broken live wire had fallen down exactly at about the place where the deceased was serving fodder to his catties. If this piece of evidence is to be believed then it will come down to a scenario where the deceased, instead of jumping away when the live wire fell just near, if not upon, him, remained where he was and waited, knowing the intentions of Lotan Singh, for him to come down to him, balance the dancing wire on his laggi and to throw the same upon his person. This can hardly be said to be a natural scenario, keeping in view the background picture that the parties were on inimical terms, and three of the important witnesses of the prosecution claimed homicide for the first time while deposing before the trial- Judge. 22. Therefore, I find that there are many circumstances in the evidence on record to create doubt as to whether on the order of the appellant Ramdeo Sing, Lotan Singh had thrown the wire with the help of a bamboo pole upon the deceased. 23. There is another reason for which appellant Ramdeo Singh could not have been convicted under Section 302 read with Section 34 of the Penal Code. The allegation against him was that he had given orders at which the wire was thrown upon the deceased by Lotan Singh. 23. There is another reason for which appellant Ramdeo Singh could not have been convicted under Section 302 read with Section 34 of the Penal Code. The allegation against him was that he had given orders at which the wire was thrown upon the deceased by Lotan Singh. But before finally disposing of the appeal of Ramdeo Singh, offence, if any, committed by Lotan Singh may be considered which will have direct bearing upon the allegations against Ramdeo Singh. 24. From the circumstances it appears that when Lotan was hooking wire, the overhead wire had broken and fallen down, which had contacted the deceased, electrocuting him. To this extent there is sufficient evidence. . 25. This point is also supported by the evidence of the Investigating Officer who said in his evidence that though there was no wire connection to the house of the appellants from the pole, but he found, on the roof of bhusail, flexible wire about three and half meters and five meters of two phase wire, attached with hook which could be used for hooking connection with the overhead wire (para 4). Earlier this witness has said that two bhusails and jackfruit trees, which situated there, belonged to Ramdeo Singh. The seized wire was produced in the Court and marked material exhibit. 26. Therefore, so far Lotan Singh is concerned, offence under Section 304-A appears to have been proved beyond reasonable doubts. 27. No doubt Lotan Singh has not been charged under Section 304-A of the Code but both the sections, namely, 302 and 304-A of the Code relate to the death of Radhey Shyam Bhagat, the difference being the presence or absence of mens rea. The appellant fully understood, by the charge, that he was being tried for causing death of the father of the informant. The entire evidence was recorded in his presence. Therefore, in such circumstance, if he is convicted under Section 304-A of the Code, this would not cause any miscarriage of justice or, in other words, any prejudice to this appellant. Therefore, appellant Lotan Singh is acquitted of the charge under Section 302 read with Section 34 of the Penal Code and is convicted under Section 304-A of the Code and is sentenced to two years of the rigorous imprisonment. 28. Therefore, appellant Lotan Singh is acquitted of the charge under Section 302 read with Section 34 of the Penal Code and is convicted under Section 304-A of the Code and is sentenced to two years of the rigorous imprisonment. 28. Coming back of the case of appellant Ramdeo Singh, since it has been found that the death was accidental, there is no question of his exhorting Lotan Singh to kill the deceased. In that view of the matter, I dont find that commission of any offence has been proved against the appellant Ramdeo Singh. 29. In the result, this appeal is allowed in part. The conviction and sentence of appellant Ramdeo Singh are hereby setaside and he is ordered to be acquitted. He is also discharged from the liability of his bail bond. Appellant Lotan Singh is acquitted of the charge under Section 302, read with Section 34 of the Code but he is convicted under Section 304-A of the Code and is sentenced to rigorous imprisonment for two years. This appellant is in custody since more than two years even after his conviction. Therefore, he has already undergone the sentence awarded by this Court. He will therefore, be released from the custody forthwith if not wanted to be detained in connection with any other case. Chandra Mohan Prasad, J. 30 I agree.