Judgment M.L.Visa, J. 1. The appellants before us, who are ten in number in this appeal, have challenged the judgment and order dated 18.12.1987 passed in Sessions Trial No. 93 of 1982 by lllrd Additional Sessions Judge, Saharsa convicting and sentencing them to undergo rigorous imprisonment for life under Ss. 302/149 of Indian Penal Code (In short "IPC"). 2. The facts giving rise to this case, briefly stated, are that informant Mukund Paswan (P.W. 10) on 13.12.1980 at about 9 AM went to Sour Bazar Police Station and lodged a First Information Report stating therein that on the same day at about 6-7 AM when he was in his house, he heard hulla that a man was lying dead in the mango orchard of Shankar Mandal with his throat cut and clothes sprinkled with blood. He went to the orchard and found a dead body lying on the northern ridge of orchard. The age of deceased was about fifty to fifty five years and his throat was cut with a sharp edged weapon and blood in cupious quantity was found at the place. Deceased was wearing dhoti, ganjee (vest) and kurta and fifty yards south-west from the body, there was a gamcha with certain things tied in it and about twenty yards north-east, a bloodstained towel was found lying. The deceased was wearing a plastic shoe in his left foot and other shoe was lying by his side. On hulla, a number of persons assembled there but no body could identify the deceased. It appeared that some unknown persons, on previous night, had committed the murder by cutting the throat of deceased with a sharp edged weapon. The informant further found that both eyes of deceased were taken out. The police registered a case u/s. 302 of the Indian Penal Code against unknown and took up the investigation of the case. During investigation, the police came to know the identity of deceased who was Motilal Sah and whose dead body was identified by his son Gyani Sah and some others and it also came to know that deceased was having litigation with appellants and was seen with them. During investigation, the police came to know the identity of deceased who was Motilal Sah and whose dead body was identified by his son Gyani Sah and some others and it also came to know that deceased was having litigation with appellants and was seen with them. The police, after completing the investigation, submitted chargesheet u/s. 302 of the Indian Penal Code against all the appellants and, accordingly, cognizance was taken and case was committed to the Court of Sessions where it was numbered as Sessions Trial No. 93 of 1982 and it was transferred to the Court of IIIrd Additional Sessions Judge, Saharsa where charges u/s. 302/149 of the Indian Penal Code were framed against the appellants and after trial, they were found guilty and were convicted and sentenced to undergo rigorous imprisonment for life u/s. 302/149 of the Indian Penal Code. 3. The case of appellants, as it appears from the documents filed on their behalf, a defence witness examined and the trend of cross-examination of prosecution witnesses, is that deceased was a money lender and a man of bad character and used to misbehave with the female folks of the persons to whom he was lending money and one Pahoran Das had caught him misbehaving with his daughter and daughter-in-law which led to a Panchayati and deceased was fighting several cases which had sparked off serious enmity and he might have been killed by someone else and appellants have been falsely implicated in this case for their enmity with deceased on account of land dispute. 4. Altogether sixteen witnesses on behalf of prosecution have been examined in this case, Bhup Narayan Yadav (PW 2) is a witness on the inquest report and seizure lists prepared by Investigating Officer. He has proved his signature (Ex-hibit-1) and signature of Kapildeo Yadav (Exhibit-1/1) on the inquest report. He has said that the Investigating Officer had seized a gamcha with which half kilogram of chura (pressed rice) was tied and had also seized blood-stained soil and had prepared two separate seizure lists on which he put his signature (Exhibits-1/2 and 1/ 3). On these seizure lists, he has also proved the signatures of Kapildeo Yadav (Exhibits-1/4 and 1/5). He has said that the Investigating Officer had seized a gamcha with which half kilogram of chura (pressed rice) was tied and had also seized blood-stained soil and had prepared two separate seizure lists on which he put his signature (Exhibits-1/2 and 1/ 3). On these seizure lists, he has also proved the signatures of Kapildeo Yadav (Exhibits-1/4 and 1/5). He has further stated that Investigating Officer had seized a blood-stained towel lying near the dead body and had prepared seizure list on which he and Kapildeo Yadav put their signatures (Exhibits-1/6 and 1/7). Thithar Yadav (PW4) and Kailu Mukhiya (PW6) have stated that police had shown them a towel which belonged to the appellant Saro Yadav. Thithar Yadav (PW 4) has said that colour of towel was yellow and white whereas Kailu Mukhiya (PW6) has said that colour of towel was red, yellow and white. Thithar Yadav (PW4), in cross-examination, has admitted that he has seen many towels of the same type and the towel, which was shown to him, did not carry any special mark. Kailu Mukhiya (PW 6), in cross-examination, has admitted that such type of towels are easily available in market and a number of persons carry such type of towels. Oli Mian (PW 8) is a tendered witness. Bishundeo Sah (PW8A) is the nephew of deceased. He has said that deceased was having land dispute with the appellants and there was a proceeding u/s. 107 of Criminal Procedure Code (In short "Cr PC") between them and once appellants had surrounded the deceased for killing him for which a proceeding u/s. 116 of the Code of Criminal Procedure was drawn against the appellants. He has further said that on a Friday, deceased had come to Court in connection with proceeding u/s. 107 of the Code of Criminal Procedure and on that day, appellants had also appeared in the Court and after Court hours, he went to Govergarha and on Saturday when he went to Sour Bazar Police Station, he found the gamcha and plastic shoe of deceased and, thereafter, he went to Baijnathpur Chowk where he saw dead body of deceased. Kapildeo Prasad Yadav (PW 9) is also a tendered witness. Mukund Paswan (PW10) is the informant of this case. Kapildeo Prasad Yadav (PW 9) is also a tendered witness. Mukund Paswan (PW10) is the informant of this case. He has said that on Saturday in the morning, he heard that in the orchard of Shankar Mandal, a man had been killed and he then went to the orchard where he saw a dead body and found that throat of deceased had been cut and his both eyes were taken out and a blood-stained towel and a gamcha tied with chura were found lying near the dead body and he then went to Police Station where he lodged the First Information Report giving the aforesaid facts. In cross-examination, he has admitted that even on enquiry from neighbouring persons, he could not know anything about the deceased. Braj Kishore Singh (PW11) has proved a receipt issued in his writing and signature (Exhibit-2) in favour of deceased for his becoming a member of Janta Party. He has also proved a letter (Exhibit-3) in the handwriting of deceased which was addressed to Sub-Divisional Police Officer, Saharsa for taking action u/s. 116(3) of the Code of Criminal Procedure Ramchandra Singh (PW 12), who is the Investigating Officer of this case, in his evidence, has said that on 13.12.1980, he recorded the statement of informant Mukund Paswan (PW 10) which was read over and explained to informant who put his signature on it. He has proved the First Information Report (Exhibit-4). He has further said that on the same day at about 10 AM, he went to the mango orchard of Shankar Yadav and found the dead body of deceased and prepared inquest report (Exhibit-5). He has further said that he inspected the place of occurrence and found blood, in cupious quantity, fallen on the place of occurrence and he found a gamcha tied with chura and a blood-stained towel lying near the dead body which was seized by him. According to him, he found a receipt of Janta Party from the pocket of kurta of deceased (Exhibit-2) and a letter (Exhibit-3). He also seized bloodstained soil, plastic shoes and prepared seizure lists (Exhibits-6, 7 and 8). He has further said that from the documents found in the kurta of deceased, he came to know that dead body belonged to Moti Sah son of Mauji Sah of village-Arsi and he sent the dead body for post mortem examination. He also seized bloodstained soil, plastic shoes and prepared seizure lists (Exhibits-6, 7 and 8). He has further said that from the documents found in the kurta of deceased, he came to know that dead body belonged to Moti Sah son of Mauji Sah of village-Arsi and he sent the dead body for post mortem examination. He has further said that Gyani Sah (not examined), Ramdeo Sah (PW 1) and Bishundeo Sah (PW 8A) came to Police Station and identified the gamcha and shoes saying that those belonged to deceased Moti Sah and at Baijnathpur Chowk, Gyani Sah, son of deceased, Ramdeo Sah and Bishundeo Sah, after seeing the dead body of deceased, identified it as of Moti Sah. According to him, Kailu Mukhiya and Thithar, after seeing seized towel, had stated that the towel belonged to appellant Saro Yadav. He has further said that he handed over the charge of investigation to Dinanath Mishra when he was transferred from Sour Bazar Police Station. 5. Dr. Mithilesh Kumar Rana (PW 13) is the doctor who had held post mortem examination on the dead body of deceased and he has said that on 14.12.1980, he examined the dead body of deceased and found a deep incised wound 3-1/2" transversely 1-1/2" broad and 1-1/2" deep was situated on the upper anterior portion of the neck from the middle of the neck to the lower border of the lower jaw and lower borders of neck and both eyes were enucluated from their sockets. According to him, the death was due to shock and haemorrhage caused by effects of injuries especially by neck injury and time elapsed since death was within forty eight hours. He has proved his post mortem examination report which is marked as Exhibit-9. 6. Guneshwar Lal Das (PW 14) is a formal witness who has proved some petitions and hazris etc. which are marked Exhibits-10,10/1, 11, 11/1. These are the petitions and hazris of the proceeding u/s. 107 of the Code of Criminal Procedure between appellants and deceased and endorsement of Shri Vedanand, the then Sub Inspector of Kashnagar Police Station on a Non-First Information Report recommending initiation of a proceeding u/s. 107 of the Code of Criminal Procedure between appellants as first party and deceased and some others as second party. This endorsement is marked as Exhibit-9. This endorsement is marked as Exhibit-9. Jai Narayan Yadav (PW 15), an advocate has proved a petition filed by deceased Motilal Sah (Exhibit-12) in the Court of Sub-Divisional Police Officer, Saharsa against the appellants for initiating a proceeding u/s. 116(3) of the Code of Criminal Procedure. He has also proved a complaint written and signed by Ramashish, the then Sub Inspector of Kash Nagar Police Station filed in the Court of Sub-Divisional Police Officer, Saharsa for taking action against the appellants u/s. 116(3) of the Code of Criminal Procedure. This petition is marked Exhibit-13. Rameshwar Lal Das (PW 16) has proved signature of Bench Clerk of Subdivisional Police Officer on Exhibit-12 and this signature is marked Exhibit-14. 7. Ramdeo Sah (PW 1) is nephew of deceased and he has said that on 11.12.1980, deceased had attended the Court of Subdivisional Police Officer, Saharsa in connection with a proceeding u/s. 107 of the Code of Criminal Procedure in which appellants were opposite parties and on 13.12.1980 in the morning, he came to know that his deceased uncle had been killed and he then went to Sour Bazar Police Station and found shoes and gamcha of his uncle kept there and, thereafter, he and police went to Baijnathpur Chowk and saw the dead body of his uncle. He has further said that he came to know that appellants had killed his uncle and in para-5 of cross-examination, he has said that he came to know this fact from Bhola Sah. Admittedly, he is not an eye witness and his only evidence is that Bhola Sah had told him that appellants had killed his uncle. Bhola Sah has been examined as PW 3 and he, in his evidence, has said that on a Friday when he reached Tilave river, which is situated near Maheshpur, he found deceased sitting at the bank of river and appellants were also sitting there and they were asking the deceased to compromise the case and why he was unnecessarily fighting. He has further said that he, thereafter, went to Bijuar and on the next day, he heard in Saharsa that appellants had killed deceased Motilal. Admittedly, he is not the eye witness to the occurrence and he had simply seen the appellants making request to deceased to enter into compromise. He has further said that he, thereafter, went to Bijuar and on the next day, he heard in Saharsa that appellants had killed deceased Motilal. Admittedly, he is not the eye witness to the occurrence and he had simply seen the appellants making request to deceased to enter into compromise. In cross-examination, this witness has said that deceased had filed a case of looting maize crop against the appellants in which he had deposed on behalf of deceased. He has also admitted that a case of theft of paddy was instituted against the appellants in which also, he was witness on behalf of complainant. In para-5 of his cross-examination, he has said that after the death of his father, his mother married Sauki Sah who is cousin of deceased and he alongwith his mother from his childhood started living with Sauki Sah who has given him two bighas of land. He has admitted that a proceeding u/s. 107 of the Code of Criminal Procedure is going on between him and appellants. Admittedly, he is an interested witness and inimical to appellants. Notwithstanding this fact, as stated above, his evidence simply shows that he saw appellants making request to deceased for entering into compromise and nothing more. Butan Mukhiya (PW 5) has said that when he was going from Arsi to Bijuar and when he reached near Tilave river, he saw deceased going towards eastern side followed by appellants and at Mahavir Asthan, Saharsa, Bhola Sah (PW 3) told him that he had seen deceased and appellants sitting at the bank of Tilave river. Hadis Mian (PW 7) has said that on a Friday, he was going from his village-Parariya to Saharsa and when he reached near Maheshpur, he saw appellants carrying away the deceased in an orchard. In para-3 of his cross-examination, he has admitted that his uncle Oli Mian was with him at that time. In para-4 of his cross-examination, he has said that at that time, deceased was crying and he apprehended that deceased might be killed by the appellants. In para-3 of his cross-examination, he has admitted that his uncle Oli Mian was with him at that time. In para-4 of his cross-examination, he has said that at that time, deceased was crying and he apprehended that deceased might be killed by the appellants. According to him, after orchard, there is Maheshpur village where a number of persons reside but he did not tell any body about the occurrence and at Saharsa also, neither he gave information of this occurrence to any authority or any body else but while returning, he disclosed this fact to Thithar (PW 4) and Kailu (PW 6) on Sunday at about 3 PM. 8. Saini Yadav (DW1), in his evidence, has said that deceased was known to him and deceased was a money lender and was a man of bad character and used to misbehave with daughters and daughters-in-law of the persons taking loan from him and once deceased was caught while misbehaving with the daughter and daughter-in-law of Pahoran Das for which a Panchayati was held in which he was one of the Panches. He has further said that deceased used to take contract of litigation and used to fight cases for others and he himself had a number of own cases which had given rise to a number of his enemies in his area. He has further said that Hadis Mian (PW 7) used to cultivate land of Udho Sah, Sarhu of deceased on bataidari. 9. In this case, there is no eye witness on the point of murder of deceased. The appellants have been convicted and sentenced on the basis of circumstantial evidence. As stated above, only two circumstances have appeared in respect of appellants. One is from the evidence of Bhola Sah (PW 3) who has simply stated that he saw the appellants asking the deceased to enter into compromise. Another circumstance is given by Hadis Mian (PW7) who has said that he saw appellants carrying the deceased in an orchard. So far as the first circumstance, as given by Bhola Sah (PW 3) is concerned, it is by no stretch of imagination against the appellants. Rather it is in their favour that they were simply making the prayer to deceased for entering into compromise. So far as the first circumstance, as given by Bhola Sah (PW 3) is concerned, it is by no stretch of imagination against the appellants. Rather it is in their favour that they were simply making the prayer to deceased for entering into compromise. About the second circumstance, which is in respect of carrying away the deceased by appellants in orchard, as deposed by Hadis Mian (PW7) is concerned, I find that Hadis Mian (PW 7) has admitted that at that time, his uncle Oli Mian was with him but it is very surprising that Oli Mian (PW8) was tendered by prosecution. In this way, the evidence of Oli Mian cannot be said to be supporting the evidence of Hadis Mian (PW 7) that when he saw appellants carrying away the deceased in an orchard, Oli Mian was with him. Besides this, it is very surprising that Hadis Mian (PW 7) kept mum for two days after witnessing the occurrence of carrying away the deceased by appellants in an orchard especially when he says that at that time, deceased was crying and he apprehended that deceased might be killed by appellants. Not only this, as stated earlier, Hadis Mian (PW 7) has said that he told about the aforesaid occurrence to Thither Yadav (PW 4) and Kailu Mukhiya (PW 6) on Sunday at about 6 PM but Thither Yadav (PW 4) and Kailu Mukhiya (PW 6) have, in their evidence, not whispered that Hadis Mian (PW 7) had told anything to them. In view of the matter, the evidence of Hadis Mian (PW 7) that he saw appellants carrying away deceased in an orchard does not inspire confidence and cannot be held to be reliable. So far evidence of Thither Yadav (PW 4) and Kailu Mukhiya (PW 6) that Investigating Officer had shown them a blood stained towel which belonged to appellant Saro Yadav is concerned, the prosecution has not produced that towel in Court. So far evidence of Thither Yadav (PW 4) and Kailu Mukhiya (PW 6) that Investigating Officer had shown them a blood stained towel which belonged to appellant Saro Yadav is concerned, the prosecution has not produced that towel in Court. No doubt, Ramchandra Singh (PW 12), the Investigating Officer has said that he had seized a blood-stained towel which he found lying near the dead body of deceased and which he had shown to Thither Yadav (PW 4) and Kailu Mukhiya (PW 6) who identified the towel as that of appellant Saro Yadav but then in absence of producing the towel in Court, it becomes very difficult to know that which towel was seized by Investigating Officer and which towel was shown to Thither Yadav (PW 4) and Kailu Mukhiya (PW 6). Besides this, how appellants are connected with that towel remains a question. No doubt, Thither Yadav (PW 4) and Kailu Mukhiya (PW 6) have said that the towel belonged to appellant Saro Yadav but then both of them have admitted that such type of towels are easily available in market and Thither Yadav (PW 4) has admitted that the towel did not have any special mark. About the documents, which are marked Exhibits-9 to 15, I find that they simply show that appellants and deceased were parties in a proceeding u/s. 107 of the Code of Criminal Procedure and deceased had filed application for initiation of proceeding u/s. 116(3) of the Code of Criminal Procedure against appellants. These documents have been brought on record by prosecution to show enmity between the parties and suggesting that appellants had motive to commit the murder of deceased but at the same time, this enmity may be a motive for false implication of appellants. In the present case, only evidence against the appellants is that one witness, namely, Hadis Mian (PW 7) has said that he saw appellants carrying away the deceased in an orchard but this evidence has also not been found trustworthy for the reason stated above. I, therefore, find that this is a case of practically no evidence against the appellants and their conviction and sentence cannot be sustained. 10. In the result, this appeal is allowed and the judgment and order of Court below convicting and sentencing the appellants is set aside and appellants are acquitted of the charges. 11. I, therefore, find that this is a case of practically no evidence against the appellants and their conviction and sentence cannot be sustained. 10. In the result, this appeal is allowed and the judgment and order of Court below convicting and sentencing the appellants is set aside and appellants are acquitted of the charges. 11. As all the appellants are on bail, they are discharged from the liabilities of their bail bonds. Mridula Mishra, J. 12 I agree.