Judgment RAM NANDAN PRASAD and CHANDRA MOHAN PRASAD JJ. 1. This appeal arises out of Sessions Trial No. 596 of 1995, Tr. No. 39 of 1999 of the 3rd Additional Sessions Judge, Bhagalpur, who, vide his judgment dated 10th/20th April, 2000, convicted the appellant under Section 302 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for life. 2. The appellant is the son of informant Amola Devi (PW 3) and deceased Aghori Mandal was appellants father. The prosecution story, as set forth in the fardbeyan, which was recorded by S.I. Govindjee Singh on 17th October, 1999 at 7.30 a.m. at the house of the informant is that her son Sikandar Mandal (Appellant) and Biro Mandal (PW 4) were living separate and her (informants) younger son Subodh Mandal (PW 1) was living with her. In the preceding night, after taking meal, she (the informant) was sleeping in"a room of her house and her husband (the deceased) was sleeping in the adjacent room and her son Sufaodh Mandal (PW 4) was sleeping in another room. She further stated that in the night at about 11.00 Oclock hearing some sound, she woke up and went into the room of her husband (the deceased) and saw that her son Sikander Mandal (the appellant) was holding a knife and he was assaulting the deceased on his neck with the knife. Two other unknown persons were also there. Due to the assault, her husband (the deceased) was twitching. Seeing this, she raised hulla whereupon her sons, Subodh Mandal (PW 1), Biro Mandal (PW 4) and daughter-in-law Mala Devi (not examined) came there and they also saw the occurrence. She further stated that seeing her two sons, the appellant left his dagger there and started fleeing but with the help of her son and villagers, he was captured. The two other unknown culprits managed to flee away. About the motive for the occurrence, the informant stated that her younger son had purchased 2 Kathas of land and that her elder son i.e. the appellant was usually quarrelling with her husband (the deceased) and he had also threatened to kill him (the deceased). The informant put her LTI on the fardbeyan. On the basis of the fardbeyan, Jagdishpur P.S. Case No. 171 of 1994 was registered and, after completion of investigation, the appellant was put on trial and convicted and sentenced, as above. 3. The informant put her LTI on the fardbeyan. On the basis of the fardbeyan, Jagdishpur P.S. Case No. 171 of 1994 was registered and, after completion of investigation, the appellant was put on trial and convicted and sentenced, as above. 3. As many as 13 witnesses were examined by the prosecution in this case. PW 3, the informant and her son Subodh Mandal (PW 1) are the only eye-witnesses to the occurrence. PW 4 Biro Mandal, PW 9 Shanker Mandal and PW 12 Daya Devi have turned hostile. PW 7 Dinesh Mandal PW 8 Prakash Mandal and PW 10 Mahendra Mandal have been tendered by the prosecution and these witnesses have said nothing in their evidence about the occurrence. PW 2 Gurudeo Mandal and PW 6 Rajendra Mandal are hearsay witnesses, who heard about the occurrence later on, on coming to the P.O. PW 11 Dr. H.I. Ansari is the doctor who held the P.M. Examination on the dead body of the deceased. PW 5 Dr. Gajendra Kumar Singh is another doctor who had examined some injuries on the person of the appellant. PW 13 is a formal witness who proved the writings on the fardbeyan marked Ext-5.He also proved the writings of the I.O. on the case diary which was marked Ext. 4. The I.O. of the case was examined by the prosecution. 4. Before discussing the ocular evidence, it is proper to discuss the medical evidence. PW 11 Dr. H.I. Ansari who held the autopsy on the dead body of the deceased deposed that on 17th October, 1994 at 1.30 p.m. he conducted the P.M. Examination on the dead body of the deceased Aghori Mandal and found the following ante mortem injuries on his person : (i) Incised wound on front and right side of neck. Size 4" x 1-1/4 with the cut of skin, trachea, oesophagus, blood vessels and other soft tissues at the level of cricoid level. The margin of skin and muscle was found retrated, which was sharply cut. (ii) Incised wound on the right side of neck size 1" x 3/4" x muscle deep. (iii) Incised wound on left side upper lip. Size l"x 1/2" on the upper jaw with uprooting of left incisor and canine teeth on the upper law. On dissection : Lungs were pale, hurt chamber empty, liver spleen, kidneys were pale. Stomach contained pasty digested food. Bladder was empty. (iii) Incised wound on left side upper lip. Size l"x 1/2" on the upper jaw with uprooting of left incisor and canine teeth on the upper law. On dissection : Lungs were pale, hurt chamber empty, liver spleen, kidneys were pale. Stomach contained pasty digested food. Bladder was empty. Column contained gas. Brain and manenges were pale. In the opinion of the doctor, the injury Nos. (i), (ii) and (iii) were ante mortem caused by sharp cutting weapon and the cause of death was shock, haemorrhage and asphyxia. Time elapsed since death was about 12-18 hours. The carbon copy of the P.M. Report was proved as Ext-3. 5. PW 5 who examined the appellant deposed that on 17.10.1994 at 12.20 p.m. he had examined the appellant Sikander Mandal and had found the following injuries on his person : (i) Lacerated wound 1" x 1/4" x 1 /4" over left leg lower l/3rd. (ii) Abrasion 1" x 1/2" over right side front of the chest above nipple. (iii) Abrasion 1 and 1/2" x 1/2" over right cheek. (iv) Swelling 2" x 1 and 1/2" over right cheek. (v) Abrasion 1 and 1/2" x 1/2" over right shoulder region. Age of injury was within 18 hours. The injuries were simple in nature caused by hard blunt substance. The injury report was proved as Ext. 2. 6 The informant PW 3 deposed on similar lines as she had stated in her fardbeyan. She deposed that her son Susodh Mandal (PW 1) was living with her and two other sons. i.e. Sikander Mandal (the appellant and Biro Mandal (PW 4) were living separate. She further deposed that in the night at about 8.00 Oclock, she went to sleep and in the night she woke up on hearing some clattering sound and then she saw that Sikander Mandal (the appellant) assaulted the deceased with dagger on his neck. Two other unknown persons were also there who were catching hold of the deceased. The deceased was twitching. She raised hulla whereupon her son Subodh Mandal and others came and saw the occurrence. She further deposed that Subodh Mandal (PW 1) captured the appellant and two other unknown culprits managed to flee away. Two other unknown persons were also there who were catching hold of the deceased. The deceased was twitching. She raised hulla whereupon her son Subodh Mandal and others came and saw the occurrence. She further deposed that Subodh Mandal (PW 1) captured the appellant and two other unknown culprits managed to flee away. At para 3 she deposed that her husband had purchased 2 Kathas of land for.her son Subodh Mandal (PW 1) and the deceased was also giving his earnings to Subodh and due to this the appellant killed the deceased. At para 7 she deposed that on hiilla, the two unkown culprits fled away but the appellant did not flee and he remained in the house. She further deposes that she had not seen the act of assault on the deceased. By saying this, the informant herself contradicts her claim that she had seen the appellant assaulting the deceased with dagger. At para 10 she deposed that 15 kathas of land which stood in the name of the deceased, was transferred to her by the deceased. At para 9, a suggestion was given that she had disclosed before the villagers that the assailant who had killed the deceased, had also committed rape on her. She denied the suggestion. In the facts and circumstances of the case, the testimony of the informant requires to be examined in the light of the evidence adduced by other witnesses. 7. Another eye-witness Subodh Mandal (PW 1) deposed that he was sleeping in the house and in the night at about 11/11.30 Oclock hearing the voice of his mother (the informant) he woke up and saw that the appellant was cutting the neck of the deceased with a dagger. He further deposed that he caught hold of the appellant. He also says that two other unknown criminals were also with the appellant and they managed to flee away. He further says that after capturing the appellant, he tied him with a palm tree in the angan of the house and the appellant remained in the angan throughout the night. He says that due to the injury caused by dagger, the deceased died. He also says that in the evening at 7.00 Oclock Daroga came and seized the dagger. A seizure list was also prepared and he signed the same. The signature has been marked Ext-1. He says that due to the injury caused by dagger, the deceased died. He also says that in the evening at 7.00 Oclock Daroga came and seized the dagger. A seizure list was also prepared and he signed the same. The signature has been marked Ext-1. At para 9 he deposed that his father had 6 Kathas of ancestral land out of which he sold 4 Kathas of land and with the sale proceeds, he purchased another 15 Kathas of paddy growing land in the name of his (PW ls) mother (the informant). He also deposed that the ancestral land had not been partitioned and that the appellant and Biro Mandal who are sons of the deceased were demanding share in the ancestral land and a dispute also existed for its partition. At para 18 he deposed that when he had seen the deceased for the first time, the deceased had already died and blood was dropping on the cot. From this evidence, it shows that this witness has seen the deceased for the first time in dead condition and, therefore, a doubt arises whether he actually saw the occurrence of assault On the deceased at the hands of appellant. He further deposed that he had captured the appellant alone and subsequently some villagers had assembled. At para 19 of his evidence, he denied the defence suggestion that her mother (the informant) had disclosed before the villagers that the two others who fled away had killed the deceased and that they had also committed rape on her (the informant). 8. Out of the hostile witnesses, PW 7 deposed that nobody had disclosed the name of assailant. PW 9 deposed that the informant stated that somebody and killed the deceased and he fled away. The prosecution had drawn the attention of the hostile witnesses towards their previous police statement which is said to have been made by these hostile witnesses in support of prosecution. But the prosecution did not examine the I.O.to prove any Police statement. Therefore, there is no ground to believe that any of these hostile witnesses had given any police statement supporting the case of prosecution before the police. 9. PW 2 is a hearsay witness. But the prosecution did not examine the I.O.to prove any Police statement. Therefore, there is no ground to believe that any of these hostile witnesses had given any police statement supporting the case of prosecution before the police. 9. PW 2 is a hearsay witness. He says that in the night at 11.30 Oclock, he woke up on hearing bulla made by the informant and then he went to the house of the deceased where PW 1 and PW 3 disclosed that the appellant had killed the deceased. 10. PW 6 is the Sarpanch of the village. He deposed that in the night at 11.30 Oclock he went to the deceased and the informant had stated to him that somebody had killed her husband (the deceased). He also deposed that he remained there for 15-20 minutes, but he had not found anybody captured and seated there. At para-2 of his cross-examination, he deposed that he had talked to the informant. The informant had not disclosed the name of any assailant. He further deposed at para 3 that Daroga had seized one vegetable cutting knife and some blood soaked earth from the P.O. At para 4 he further deposed that he had seen the seized knife and there was no blood mark on it. He also deposed that the informant had stated that the culprit who killed the deceased had also committed rape on her. Thus, evidence of this witness gives a dif-. ferent picture that the name of the assailant was not disclosed by the informant to him when this witness went to the P.O. after the occurrence and that she also disclosed that the culprit who had killed the deceased had committed rape on her. This witness is a responsible person of the village and he says that he had not found any blood on the knife which was seized from the P.O. 11. The evidence, as adduced by the prosecution suffers a number of infirmities, as was pointed out during the argument. 12. The informant and her son who was living with her had claimed that the appellant was captured by PW 1 during the occurrence. But no other witness says that the appellant was apprehended at the spot; rather PW 6 who is a Sarpanch of the village says that he had not found any person captured and seated at the PO. The informant and her son who was living with her had claimed that the appellant was captured by PW 1 during the occurrence. But no other witness says that the appellant was apprehended at the spot; rather PW 6 who is a Sarpanch of the village says that he had not found any person captured and seated at the PO. Besides this, according to the evidence of PW 5 several injuries in the nature of abrasion, swelling and lacerated wound were found on the person of the appellant. There is nothing in the prosecution evidence that the appellant was assaulted by any one. Then it becomes suspicious as to how injuries were caused to the appellant and the prosecution is unable to explain it. The appellants lawyer argued that the appellant was not apprehended on the spot and he was consequently captured and implicated in this case. PW 4 has deposed that he and the appellant who are brothers were living separate from the deceased and another brother Subodh Mandal (PW 1) was living with the deceased. He specifically deposed at para-2 that in the night of occurrence, the appellant was not captured. As para-5 he deposed that the land stood in the name of his mother and his father (the deceased) was willing to partition the land among the sons but the mother (informant) was not agreeable to it. The attention of this witness was drawn towards the police statement as said to have been made by him in support of prosecution but any Police statement has. not been proved by examining the I.O. Hence, there is no reason to believe that this witness had given any evidence before the IO in support of prosecution. 13. Regarding the reason for implicating the appellant in the case it was pointed out that it has come in the evidence of PW 1. PW 3 and PW 4 that the deceased was living with the informant in whose name the land stood and the appellant was demanding a share in the land and the informant was not willing to give him the share. Therefore, it was argued that the appellant has been implicated falsely due to the gradge that he was demanding a share in the land which stood in the name of the informant. 14. Therefore, it was argued that the appellant has been implicated falsely due to the gradge that he was demanding a share in the land which stood in the name of the informant. 14. The informant (PW 3) and PW 1 are the only eye-witnesses to the occurrence who say that the appellant had attacked the deceased and killed him with dagger. But the evidence of PW 1 as to his claim of having seen the assailant is discredited by his evidence at para 18 where he says that when he had seen the deceased for the first time, the deceased was already dead and blood was dropping on the cot. The claim of the informant about her having seen the act of assault is also discredited by her evidence at para-7 that she had not seen the act of assault. Therefore, PWs 1 and 3 who are the only eye-witnesses do not remain trustworthy witness on this point. The evidence of these eye-witnesses also further stand discredited by the evidence of PW 6 (paras 1 and 2) that the informant had disclosed before him that some body had killed her husband and that she had not disclosed the name of any assailant and that the informant had further disclosed that the culprit who had killed the deceased had also committed rape on her. 15. It is alleged that the appellant killed the deceased with a dagger and the dagger was seized by the police. The dagger has not been produced in Court nor it was sent for any chemical examination in order to find out whether it contained any human blood or not, rather the evidence of PW 6 is that he had seen the knife and there was no blood on it. According to the prosecution case, the appellant had assaulted the deceased with the knife. The medical report shows that there were three incised wounds. It means that the knife was used successively causing injury to the deceased. Hence, there must be blood on it. But the categorical evidence that there was no blood on it goes to discredit the informants claim that the assailant had assaulted the deceased with the knife which was seized by the police. 16. According to prosecution story, the appellant killed the deceased by assault on neck with dagger. Hence, there must be blood on it. But the categorical evidence that there was no blood on it goes to discredit the informants claim that the assailant had assaulted the deceased with the knife which was seized by the police. 16. According to prosecution story, the appellant killed the deceased by assault on neck with dagger. The doctor has found knife injury on the neck to the effect that trachea was cut. About the cause of the death, the doctor has opined it as shock and haemorrhage and asphyxia, when according to the prosecution the deceased died of knife blow and the doctor finds the trachea cut, then there cannot be asphyxia as one of the cause of death. It is not explained by prosecution why the cause of asphyxia was found by the doctor. Under the circumstances, it appears that the prosecution has not revealed the true story about the occurrence. 17. The occurrence is said to have taken place during night hours. The P.O. situates in a village and the appellant, the informant all are villagers. The prosecution story is that the informant had gone to her bed in the night at 8.00 Oclock and at about 11.00 Oclock she woke up on hearing some sound and saw the occurrence. The occurrence is said to have been witnessed in the night hours at 11.00 Oclock but any means of identification is not disclosed. There is nothing in the evidence that any kind of source of light like any lantern or earthen lamp was lighting. Since, there is no means of identification, a doubt remains whether there was sufficient opportunity or occasion for the PWs 1 and 3 to identify-the assailant during the occurrence. 18. The learned APP referred a decision of the Honble Supreme Court published in (1997) 4 SCC 445 wherein it was held that the visible capacity of urban people who are acclimatised to fluorescent light or incandescent lamp is not the standard to be applied to villagers whose optical potency is attuned to country-made lamps. Hence, it would be quite possible for the villagers to identify men and objects in such light. The learned State counsel argued that identification can be made by the villagers in such condition in the night hours also. But the decision cited by the State counsel does not help the prosecution. Hence, it would be quite possible for the villagers to identify men and objects in such light. The learned State counsel argued that identification can be made by the villagers in such condition in the night hours also. But the decision cited by the State counsel does not help the prosecution. In the cited decision identification was made in the light of country-made lamps and such identification was upheld but in the instant case before us, there is no source of light at all, therefore, it is not safe to believe the identification of the assailant as claimed by PWs 1 and 3. 19. Thus, considering the facts and circumstance of the case and the infirmities in the evidence of prosecution, we find that the prosecution has not been able to prove its case beyond shadows of doubt, hence, it is held not proved and the appellant is acquitted of the charge. 20. in the result, this appeal is allowed, the conviction and sentence passed against the appellant are set aside and the appellant, who is in jail, is directed to be set at.liberty forthwith, if not wanted to be detained in any other case.