Judgment Shiva Kirti Singh, J. 1. All the three appeals have been heard together as they relate to the same impugned judgment dated 19.7.2002 passed by 1st Addl. Sessions Judge, Madhepura in Sessions Trial No. 357 of 1998. Appellant Babloo Yadav (Cr. Appeal No. 219 of 2006) has been sentenced to undergo rigorous imprisonment for ten years under sec. 376 of the I.P.C. and for life under sec. 302 I.P.C. Appellant Jawahar Yadav (Cr. Appeal No. 615 of 2002) has been sentenced to undergo rigorous imprisonment for seven years under sec. 376 read with Sec. 511 of the I.P.C. and for life under sec. 302 I.P.C. The remaining three appellants Jugal Yadav @ Chugal Yadav, Arun Yadav and Upendra Yadav @ Upen Yadav (Cr. Appeal No. 520 of 2002) have been sentenced to undergo rigorous imprisonment for life under sections 302/ 149 read with Sec.109 of the I.P.C. The trial court has not awarded any separate sentence for the offence under S.C. & S.T. (Prevention of Atrocities) Act, 1989. 2. The prosecution case in brief, as appearing from the Fardbeyan (Exhibit-6) of Laxman Rishideo (RW. 15) recorded on 10.1.98 at 17.00 hours at village Katawan near dead body of deceased Rani Devi @ Rania, is that at 1.30 P.M. the victim Rani Devi © Rania alongwith her Mousi (Mothers Sister) Anandi Devi (RW. 18) had gone to the west of their house in the field to pluck "Sag" (a vegetable) and to collect firewood. While they were returning at around 3 P.M. and had reached near the west of bamboos clumps belonging to the victim, the five named accused persons were seen plucking the leaves of bamboos and also cutting small branches and grazing their cattle. On protest by the victim and her Mousi, Anandi Devi (P.W. 18) the accused persons abused them and also threatened them with dire consequences and on further altercation accused Babloo Yadav with bad intention caught hold of the deceased, a sister of the informant and dragged her towards a ditch near the bamboo clumps. On seeing this Anandi Devi rushed for help to informants house and reached back with the informant and some other villagers near the bamboo clumps. On seeing this Anandi Devi rushed for help to informants house and reached back with the informant and some other villagers near the bamboo clumps. They allegedly heard the cries of the victim and on going nearer to the ditch they saw accused Babloo Yadav getting up, after committing rape upon the victim and thereafter allegedly accused Jawahar Yadav was intending to commit rape upon her. On protest of the informant and others such as P.W. 3, RW. 4 and RW. 14 the victim got up and wanted to catch the accused persons whereupon accused Arun Yadav gave orders to kill the victim otherwise she would implicate them in the offence of rape. Thereupon accused Upendra Yadav and Jugal Yadav pulled her down in the ditch. Accused Jawahar Yadav struck with an axe across the left side of her neck, thereafter accused Arun Yadav uttered that victim was not yet dead and then accused Babloo Yadav gave another axe blow across the left side of neck and she died instantaneously. Accused persons thereafter fled away. Allegedly people from the neighbourhood had come and seen the occurrence and also heard about it. 3. The Investigating Officer (RW. 17) seized the blood stained earth and other materials such as a Sari of the deceased used for wraping, from the place of occurrence, prepared inquest report (Ext. 2) and forwarded the dead body for autopsy. Dr. Uma Shankar Bhagat (P.W. 1) conducted the autopsy and prepared post mortem report (Exhibit-1). After completing Investigation charge-sheet was submitted against the accused/appellants and they were committed to the court of sessions to face their trial. The accused/appellants pleaded not guilty and were subjected to the trial in which they have been convicted and sentenced as noticed above by the impugned judgment and order of conviction. 4. The prosecution, in order to prove its case and the charges has examined 20 witnesses. As noticed earlier P.W. 1 is the doctor. P.W. 2. Jagdish Yadav, P.W. 3, Dhaneshwar Rishideo, P.W. 4, Narain Rishideo, P.W. 5, Chandra Rishideo, P.W. 6, Debo Rishideo, P.W. 7, Shatrughan Rishideo, P.W. 8, Bhuneshwar Rishideo, P.W. 9, Kunkun Rishideo and P.W. 10, Bindeshwari Rishideo, (PWs. 3, 4 and 10 being named in the F.I.R. as eye witnesses) have given short statements in their examination-in-chief that they are not aware of the alleged occurrence. 3, 4 and 10 being named in the F.I.R. as eye witnesses) have given short statements in their examination-in-chief that they are not aware of the alleged occurrence. They have been declared hostile alongwith P.W. 16, Suraj Rishideo, P.W. 18, Anandi Devi ("Mousi" of the deceased and named in the F.I.R. as an eye witness), P.W. 19, Satto Rishideo and P.W. 20, Acharmani Devi, P.W. 11, Gobardhan Yadav, P.W. 12, Brahamdeo Yadav, P.W. 13, Birendra Yadav and P.W. 14, Lalo Rishideo (claimed to be an eye witness) have been tendered for cross-examination only. 5. The prosecution case, in short, rests only upon the evidence of informant (P.W. 15) Laxman Rishideo and to some extent upon the alleged corroboration by P.W. 17, Harendra Prasad Choudhary, the Investigating Officer, P.W. 1, Dr. Uma Shankar Bhagat has stood the test of cross-examination and has proved that the deceased had two ante mortem injuries on her neck portion caused by sharp cutting weapon like an axe but he has also deposed that no other injuries were found on the dead body of the deceased and has thus contradicted the prosecution case of rape upon the deceased. The evidence of the Investigating Officer is not of much help because the factum of death and the place of occurrence is not in dispute. The main issue is whether the claim of the prosecution that the accused/appellants committed the offence in the manner alleged is correct or not and whether the sole testimony of P.W. 15, Laxman Rishideo can be relied upon to sustain the conviction of the accused/appellants that they had committed the offence as alleged. 6. On a close scrutiny of evidence of P.W.15 it is found that he has not claimed to have seen with his own eyes the earlier part of the occurrence when the alleged altercation took place and when allegedly the deceased was caught hold of by appellant Babloo Yadav and pulled to a ditch. He has admitted in paragraph-8 of his deposition that his house is situated at a distance of 500 yards from the bamboo clumps, the alleged place of occurrence and that he could come to the place of occurrence on getting information of the alleged occurrence from his Mousi (P.W. 18) Anandi Devi. He has admitted in paragraph-8 of his deposition that his house is situated at a distance of 500 yards from the bamboo clumps, the alleged place of occurrence and that he could come to the place of occurrence on getting information of the alleged occurrence from his Mousi (P.W. 18) Anandi Devi. In paragraphs 14 to 16 he has replied in cross-examination that on the date of occurrence he had gone to the police station and had reached there at about 8 P.M. He claimed that he stayed there for half an hour and met the Officer-lncharge and A.S.I. of the police station but his statement was not recorded at the police station. He has further deposed that he could come to the village home from the police station at 9.30 P.M. alongwith police. The police stayed at his Darwaja till 11 RM. When the police arrived, there were 10 to 20 persons at his Darwaja but the police did not record the statement of any such person or any of the family members. In paragraph-18 he has deposed that his Beyan and the statement of others including his father was recorded at the police station on the next day of the alleged occurrence. This creates doubt as to the time of recording of fard-beyan itself. 7. RW. 15 has also admitted in cross-examination that in his village his caste men i.e. Mushars are members of Communist Party and in the vicinity there is Tola of Yadavs who are members of another political party. He has further admitted that P.W. 4, Narain Rishideo, P.W. 14, Lalo Rishideo, P.W. 3, Dhaneshwar Rishideo and P.W. 10, Bindeshwari Rishideo are leaders of his caste and they had asked him to lodge the case. This suggests that the case was lodged after deliberation and may be on instigation and manipulation. Further the admitted distance of the house of the informant from the alleged place of occurrence and the prosecution story that RW. 18, Anandi Devi had to go from the place of occurrence to the house of the informant on foot and then they could come back alongwith some others on foot, creates doubt whether on coming from his house the informant could have witnessed the occurrence and that the culprits would have waited at the place of occurrence so as to commit a ghastly offence of murder in presence of the witnesses. The evidence of the doctor and the material circumstances such as absence of any marks or injury on the private parts of the deceased, any semen spots at the place of occurrence or on her clothes do not support the prosecution story of rape. If the earlier happenings alleged to have been seen by P.W. 18, had been proved by her, there could have been some chance of partial acceptance of the prosecution case relating to murder of the deceased on the basis of circumstances but since RW. 18 and all other witnesses have turned hostile and have not supported the prosecution case at all, it is not possible to accept the prosecution case even in respect of killing of the deceased, on the basis of first part of occurrence as alleged in the Fardbeyan. 8. Thus, on careful consideration of the facts and circumstances of the case, we are constrained to hold that the prosecution has failed to prove any of the charges against accused appellants in this case. In view of such findings it is not possible to sustain the impugned judgment and order of conviction and the same is therefore, set aside. The appeals are allowed and the appellants are acquitted. It appears that accused/appelant Babloo Yadav (Cr. Appeal No. 219 of 2006). Accused/appellants Yugal Yadav @ Chugal Yadav, Arun Yadav and Upendra Yadav @ Upen Yadav (Cr.Appeal No. 520 of 2002) are in custody. They are directed to be released from custody forthwith if not required in any other case. Accused/appellant Jawahar Yadav (Cr. Appeal No. 615 of 2002) is on bail. He shall stand discharged from the liability of his bail bonds.