Judgment B.N.P.Singh, J. 1. Though prosecution was initially launched against six persons including appellants, proceeding pending before Court below, having abated as against Banwari Pandit on his death, appellants alone were put on trial, who suffered conviction under Section 302/34 of the Indian Penal Code (IPC), for which they were sentenced to suffer rigorous imprisonment for life. Appellants were sentenced also for a term of seven years for their conviction under Section 364, IPC, and as for their conviction under Section 201, IPC, they were sentenced to suffer rigorous imprisonment for a term of three years, with a rider that all the sentences shall run concurrently. 2. Basic features of the prosecution case, which runs not in much details, can be discussed with brevity. Recitals made in the first information report lodged on behest of Jay Ram Pandit (PW 6) would suggest, inter alia, that on 23rd January, 1992, in evening hours, while Jay Ram Pandit was returning from Kharagpur Market, in the company of Manoranjan Prasad Vikel (PW 1) and Suresh Prasad (PW 2), he noticed his younger brother Sudhir Pandit near Barhauna orchard, who was on way to his house after having appeared at the examination at Kharagpur. Shortly thereafter, 6/7 persons emerged from nearby ambush, dragged Sudhir Pandey towards south and among them appellants were identified by them. They also chased him: When they came to village, informed the villagers about the incident. Though that day hectic searches were made by him in the company of the villagers but no trace of Sudhir Pandit could be found. However, the following day, in course of search, they found head of Sudhir Pandey severed from his trunk beside the sand of the river. They noticed blood spread on the sand. Pending litigation between the deceased and the appellants was shown to be offshoot of the incident. 3. After Police case was instituted, investigation followed, in course of which Investigating Officer visited place of occurrence, recorded statement of witnesses, prepared inquest report over the dead body of the deceased, seized some offending articles from the field and also sand of the river in course of investigation, got autopsy I held over the severed part of the body of Sudhir Pandit and on conclusion of investigation, laid charge sheet before the Court. Not less than ten witnesses were examined by the State in the eventual trial that followed thereafter and some of them were quite formal, who placed some documents on the record and their evidences have been fairly spelt out in the judgement of the Court below. 4. Defence of the appellants both before the Court below and this Court had been that of innocence and they ascribed their false implication due to pending litigation which had been acknowledged even by the prosecution party. However, defence has not chosen to examine any witness and trial Court on consideration of probative value of evidence and testimony of the witnesses, while rejecting plea of innocence of the appellants, recorded finding of guilt and sentenced them in the manner stated above. 5. For appreciation of contentions raised on behalf of the appellants, a brief resume of the narratives made by the witnesses can be noticed at the threshold. Reiterating his earliest version, Jay Ram Pandit (PW 6) states at trial that after his brother raised alarm on being dragged by the appellants and their associates, when he questioned them for doing so, on being exhorted by Banwari Pandit (since dead), his associates chased them. They came to village and informed the villagers, who made hectic searches for Subodh Pandit but could not find trace of him. As night had set in, they returned to village and following morning, during search, trunkless body of Sudhir Pandit along with blood stained spade was found in the river. South to a tree, shawl, admit card, question papers, pairs of sandle allegedly to be that of the deceased, were found by them. At a distance of 300 yards from the tree, blood stained baniyan of Subodh Pandit was found in a ditch. As for litigation, the witness states that Subodh Pandit had litigation with the appellants, and he had also lodged Sanha against them with the Police about murderous assault on him preceding the incident, 6. Narrations almost in similar terms and veins were made also by Manoranjan Prasad Vikel (PW 1) and Suresh Yadav (PW 2} about they having accompanied Jay Ram Pandit (PW 6) during their return to the village from Kharagpur market. Narrations almost in similar terms and veins were made also by Manoranjan Prasad Vikel (PW 1) and Suresh Yadav (PW 2} about they having accompanied Jay Ram Pandit (PW 6) during their return to the village from Kharagpur market. Narrations in similar terms and veins were made by these two witnesses also about they having caught Sudhir Pandit while returning from Kharagpur after appearing at the examination as he was apprehended by the appellants and their associates, who dragged him and took him to an unknown destination. These two witnesses also stated about their chase by them when Jairam Pandit questioned them about dragging the deceased. Basudeo Pandit (PW 3) stated to have got information about kidnaping of Sudhir Pandit by the appellants and others from none else but Jay Ram Pandit, who was eye witness to the abduction. Thereafter, the witness states that "he along with other villagers set out from the village in search of Subodh Pandit though no trace of him could be found. However, the witness claimed to have noticed the admit card, shawl, and pair of sandles allegedly to that of the deceased from the ditch of Hare Ram at some distance from the river. It was in the following morning that during search of Subodh Pandit, trunkless body of the deceased could be found along with spade on the sand of the river and similar had been the evidence of Ranjendra Pandit (PW 4) also for receipt of information about abduction of Sudhir Pandit by appellants and their associates of information to this effect having been received by him from Jay Ram Pandit, brother of the deceased. This witness too states about search having been made by villagers for Subodh Pandit, when some offending articles and also belongings of deceased severed from the trunk was also found on sand of the river. 7. This witness too states about search having been made by villagers for Subodh Pandit, when some offending articles and also belongings of deceased severed from the trunk was also found on sand of the river. 7. Narrative of the witnesses can be broadly classified in two sets, as while Manoranjan Prasad Vikel (PW 1) Suresh Yadav (PW 2) and Jay Ram Pandit (PW 6) were witnesses to the incident of kidnapping of Subodh Pandit by appellants and others, rest two witnesses namely, Basudeo Pandit (PW 3) and Rajendra Pandit (PW 4) were witnesses on the point of seizure of head severed from the trunk found on the sand of the river and also seizure of some articles allegedly to be that of the deceased at some distance from river. Submissions were made on behalf of the appellants that though appellants suffered conviction also under Section 302/34 IPC on accusation of killing of Sudhir Pandit, there had not been evidence of unimpeachable nature available on the record to make appellants answerable for killing of the deceased, as even assuming the prosecution case to be true on its face value , after Sudhir Pandit was kidnapped by appellants and their associates, there was no witness as what transpired thereafter, and identification of head of the deceased too had been seriously challenged by the appellants, and appellants in the circumstances cannot be made answerable to be authors of episode of murder. Contentions are raised that though there are cluster of houses around the house of Jay Ram Pandit (PW 9) and that apart raised that though Barhauna village is hardly at a distance of one kilometer from Sado, it was quite unlikely that no one would have rushed to the place of occurrence on alarms raised by the victim or his brother. Variations occurring in testimony of witnesses about the day, when seizure of offending articles were made by the Police was also highlighted at Bar to impeach their credibility who stated to have noticed offending articles in the field of Hare Yadav and also trunkless body of the deceased on sand of the river. Variations occurring in testimony of witnesses about the day, when seizure of offending articles were made by the Police was also highlighted at Bar to impeach their credibility who stated to have noticed offending articles in the field of Hare Yadav and also trunkless body of the deceased on sand of the river. The submission is that though the post mortem report would suggest that a number of incised injuries were noticed on the head, false implication of the appellants is writ large for the simple reason that none of the appellants were shown to have held edged or pointed weapon with them, and the last submission is that though attention of witnesses were drawn to their earliest version rendered during investigation to question their credibility, but since the Investigating Officer was not examined during trial, many a good questions remained unanswered. 8. As has been noticed, witnesses who claimed to have witnessed kidnapping of Subodh Pandit, happen to be Manoranjan Prasad Vikel (PW 1), Suresh Yadav (PW 2), and Jai Ram Pandit (PW 6) who in course of return to their village from Kharagpur market, stated to have met Subodh Pandit who was returning to village after appearing in exam, at Kharagpur. These witnesses state that shortly after they noticed Subodh Pandit, appellants and others had emerged from nearby ambush, who apprehended him and took him to unknown destination. These three witnesses also happened to have witnessed seizure of some offending articles from the field of Hare Ram Yadav and also sand of the river. Though trunkless body of Subodh was found on the sand of the river, which, as has been the finding of the doctor, bore several incised wounds; in fact, there has been no accusation about appellants to be author of fatal injuries since there was no witness as to what transpired after Subodh Pandit was kidnapped by them. Though the witnesses claimed to have identified head of Subodh Pandit found on the sand of the river, its identification had been seriously challenged by the defence and contention raised on that score cannot be said to be without substance, as none of the witnesses was emphatic about identification of head of Subodh Pandit, there being any mark of identification. 9. 9. Admitted facts are that Investigating Officer, who effected seizure of offending articles from the field of Hare Ram Yadav and also recovery of head from the sand of river had not been examined by the prosecution at trial. Even seizure memo testifying alleged seizure of these articles had rot been brought on the record, as what was brought on the record with the aid of the formal witness was simply signature of witnesses on the seizure memo. We have noticed yet another infirmity about alleged seizure of these offending articles, as Jay Ram Pandit (PW 6) would not state about seizure of these articles on the day when villagers set out from their village in search of Subodh Pandit. Other witnesses on the point had led their evidence otherwise. If Manoranjan Prasad Vikel was to be given any credence on this point, seizure of pair of sandle, admit card, and shawl allegedly that of the deceased was made on the same day when they set out from village in search of Subodh Pandit though the witness states that seizure of blood stained spade and head of Subodh Pandit was made on following day. Similar had been the evidence of Suresh Yadav (PW 2) also, who claimed to have noticed admit card, and question paper allegedly to that of the deceased only in the evening when they had set out from their village in search of the deceased. Evidence of Basudeo Pandit (PW 3) too suffers from same infirmity, as he too claimed to have noticed admit card, shawl, and pairs of sandles allegedly that of the deceased, in the evening itself when they set out from their village in search of the deceased, but if narrations made by Rajendra Pandit (PW 4) was to be given any credence, seizure of pair of sandle,shawl admit card and also trunkless body of the deceased, was found on the next day when again they set out from their village in search of the deceased. Though neither there has been such recital made in the first information report nor there has been evidence of other witnesses, Manoranjan Prasad Vikel (PW 1) would state that they came to notice these offending articles when they proceeded in the direction with the aid of trail of blood. Though neither there has been such recital made in the first information report nor there has been evidence of other witnesses, Manoranjan Prasad Vikel (PW 1) would state that they came to notice these offending articles when they proceeded in the direction with the aid of trail of blood. Attention of witnesses were also drawn by the defence about they having noticed these offending articles, that being materially different from statement made by them during investigation. Needless to say that neither offending articles nor articles said to be that of the deceased were produced at trial when the witnesses were examined by the State, and hence we find it quite unsafe to place reliance on this part of testimony of witnesses about seizure of offending articles which was probably led at trial to establish proximity of the appellants with the killing of the deceased and thereby to make them answerable under Section 302/34 IPC. 10. Though volley of questions were put to Basudeo Pandit (PW 3) and Jay Ram Pandit (PW 6), to show that there are cluster of houses around the house of the informant, in our view, they did not have any bearing on the issue, as Subodh Pandit was allegedly kidnapped from the orchard at a distance of about one Km. from the village and not from the place near his house so that there could have been possibility of neighbours beirig the witnesses. However, it is significant to notice that though both Manoranjan Prasad Vikel (PW 1) and Suresh Yadav (PW 2) hail from village Sado, but assertions made by them about witnessing incident of kidnapping cannot be countered, they being in the company of Jay Ram Pandit (PW 6) while returning from Kharagpur market. Though assertion made by witnesses about they having been to Kharagpur market was also questioned by the defence, there being no evidence about any purchases having been made by them in the market, in our view that is not a vital factor which clinches the issue, in view of evidences of witnesses having not suffered infirmity. Credibility of Suresh Yadav (PW 2) would not be impaired simply because he had appeared as a witness in a previous case instituted by Police against appellants once he is found credible and trustworthy. 11. Credibility of Suresh Yadav (PW 2) would not be impaired simply because he had appeared as a witness in a previous case instituted by Police against appellants once he is found credible and trustworthy. 11. In the circumstances we while uphold finding of guilt and sentence recorded against appellants by Court below under Section 364, IPC, acquit them of rest of the charges, and with this modification, both the appeals are accordingly dismissed. Appeal dismissed with modifications.