By Court.- A1, A 11, A6, AS, A3, A 12, A4, A2, A7 and A 10 in Sessions Trial No. 311/1983 are the appellants. Two other accused, Patwari Rawani and Maghu. Rawani, who were arrayed as A8 and A9, were tried alongwith them. In this appeal, the appellants will be referred in the same order as they were arrayed before the Sessions Judge and the two acquitted accused, namely, Patwari Rawani and Maghu Rawani, will be referred as A8 and A9 for the sake of convenience. 2. A1 to A 12 were charged under section 302 read with Section 34 I.P.C., 201 I.P.C., 148 I.P.C. as well as under section 302 read with Section 149 I.P.C. The Trial Judge, while acquitting Patwari Rawani and Maghu Rawani of the charges, found A1 to A7 and A10 to A12 (who are appellants herein) guilty under section 302/ 149 I.P.C. and sentenced each of them to imprisonment for life. On being found guilty under section 148 I.P.C., each of them was sentenced to undergo three years rigorous imprisonment, while rigorous imprisonment of seven years was imposed on each of them for the conviction under section 201 I.P.C. The Trial Judge, though found the above appellants guilty under section 302/ 34 I.P.C., did not award any separate sentence we are unable to understand as to why learned Sessions Judge should find appellants guilty both under section 302/34 I.P.C. and under section 302/149 I.P.C. The present appeal by the accused appellants is against the above conviction and sentence. 3. All the accused are residents of Rajashar Tola. The deceased Surendranath Tiwary and the witnesses were residents of Mouza. The accused, according to the prosecution, used to tease the women of the village and further, according to the prosecution, in the year 1982, the sister of the deceased was given in marriage and during the wedding a brass plate was found missing. The accused were blamed for the missing of the brass plate and according to the prosecution, A 1 to A9 were, therefore, aggrieved against the deceased and that the occurrence took place on account of the above motive. 4. On 5.4.1983 at about 7.00 p.m., Surendranath Tiwary was at the Tea Shop. He was• met by P.W. 5 Nawal Kishore Tiwary, P.W. 6 Braj Kishore Mishra and P.W. 8 Ramesh Chandra Dubey. The deceased, on seeing P.Ws. 4. On 5.4.1983 at about 7.00 p.m., Surendranath Tiwary was at the Tea Shop. He was• met by P.W. 5 Nawal Kishore Tiwary, P.W. 6 Braj Kishore Mishra and P.W. 8 Ramesh Chandra Dubey. The deceased, on seeing P.Ws. 5, 6 and 8, left the Tea Shop where he was sitting after purchasing milk in a Lota. All of them started proceeding to the village. While they were on the way to the village, the twelve accused appeared before them, armed with various weapons, and started inflicting injuries on the deceased Surendranath Tiwary. Then P.Ws. 5, 6 and 8 attempted to intervene to prevent the attack; but they were threatened. Therefore, P.Ws. 5, 6 and 8 ran away from the place. P.W. 6, after some time, leaving the village, went to Jasidih police station and gave fardbeyan, Ext. 5, to Ramadhar Singh, Sub-Inspector, P.W. 9. This was registered as a crime and investigation was taken up. During the course of investigation, inquest was conducted over the dead body of the deceased and the inquest report is Ext. 4. After the inquest, the body was sent for post mortem with a requisition requesting the Doctor to conduct autopsy. 5. On receipt of the requisition and the dead body, P.W. 7, Dr. During the course of investigation, inquest was conducted over the dead body of the deceased and the inquest report is Ext. 4. After the inquest, the body was sent for post mortem with a requisition requesting the Doctor to conduct autopsy. 5. On receipt of the requisition and the dead body, P.W. 7, Dr. Narendra Mohan Sharma, conducted autopsy and found the following injuries on the dead body of Surendranath Tiwary: "(i) Incised wound over scalp-5" x 2 1/2' x 3" with fracture of parietal bone, (ii) Incised wound over scalp 4" x 2" x 3 1/2", (iii) Incised wound over scalp up to forehead on the left side 6" x 3" x 2", (iv) Incised wound from scalp to neck 7" x 2" x 5" with fracture of occipital bone, (v) Incised wound on the left side of neck 6" x 2" x 5", (vi) Incised wound 2" x 1/2" x 2" with lower part of left ear over scalp, (vii) Incised wound below the chin 4" x 1 ½” x 2" (viii) Incised wound on the neck 7 1/2" 4" x 5 1/2" (ix) Incised wound over neck and left side of the face 4" x 3" x 1 1/2', (x) Incised wound on the left shoulder 5" x 2 1/2" x 2" (xi) Incised wound over left shoulder 3" x 2 1/2" x 2", (xii) Incised wound over left shoulder 3" x 1" x 1 1/2", (xiii) Incised wound on the left arm on the upper part 3" x 2 1/2" x 3" with fracture of humerus, (xiv) Incised wound over arm 1 1/2" x 1" x 1", (xv) Incised wound on the right shoulder with fracture of scapula 5 1/2" x 4" x 4", (xvi) Incised wound on right arm 5 1/2 x 2" x 3", (xvii) Incised wound over left elbow 3 1/2" x 2 1/2" x 2", (xviii) Incised wound on the left arm 3" x 1/2" x 1/2", (ix) Incised wound 2 1/2" x 2" x 1 1/2 on the left wrist with fracture of radius, (xx) Incised wound on the left side of chest ½” x 1/2", (xxi) Incised wound on the upper part of abdomen ½” x ½” x 1/2", (xxii) Incised wound on the right knee 3" x 1/2" x 1/4" on the left hip, (xxiii) Incised wound on the right knee 5" x 3" x 2 1/2' with fracture of femur, (xxiv) Incised wound over penis 1/2 x ½" x 1/4", (xxv) Incised wound over penis ½” x ½" x 1/4" The Doctor issued Ext. 6, the post mortem certificate, with his opinion that the death was on account of shock and haemorrhage as a result of the injuries and that death must have occurrence within 24 hours of conducting the autopsy. 6. After completion of the investigation, the final report was filed against the twelve accused. When they were questioned under section 313 Cr.P.C., they denied all the incriminating circumstances. 7. A8 Patwari Rawani and A9 Maghu Rawani came out with a specific case that they were on duty at Food Corporation of India at the time of occurrence and to support the said defence, they examined three witnesses, D1 to D3, through whom, Exts. A, C and D were marked. 8. Learned counsel appearing for the appellants strenuously contends that the fardbeyan, Ext. 5, would have been prepared implicating all the accused with the crime, in view of the enmity between the two castes in the village and that Prem Chand Malviya, Police Officer, who was at Jasidih police station, must have been behind the preparation of Ext. 5, who belonged to the same community of the deceased and witnesses. It is the further submission of the counsel that on a dark night, it would have been impossible for the witnesses to have identified all the twelve accused with the help of Torch Lights, as claimed by them, and that the Investigating Agency did not even seize the said Torch Lights. Learned counsel also contends that the recitals found in Ext. 6, the post mortem certificate, indicate that the occurrence could not have taken place at 7.00 p.m as claimed by the prosecution and that the occurrence must have taken place much later in the night. Learned counsel further submits that the case of the prosecution that the dead body of the deceased was taken away from the scene of occurrence by the accused after his death for its being tied with rope and bamboo, is too artificial to be believed. Learned counsel, in the above circumstances, submits that the trial court was not justified in finding the appellants guilty. 9. On the above contention, we have heard Mr. B.V. Kumar, learned counsel appearing for the State. 10. The fact that Surendranath Tiwary died on account of homicidal violence stands established through the evidence of the Doctor, P.W. 7, who conducted autopsy and who issued Ext. 9. On the above contention, we have heard Mr. B.V. Kumar, learned counsel appearing for the State. 10. The fact that Surendranath Tiwary died on account of homicidal violence stands established through the evidence of the Doctor, P.W. 7, who conducted autopsy and who issued Ext. 2, the post mortem certificate, wherein he has noted the injuries found on the dead body. The oral evidence of the Doctor in the Court and the certificate issued by him conclusively establish that Surendranath Tiwary died on account of homicidal violence. 11. The prosecution examined P.W. 5 Nawal Kishore Tiwary, P.W. 6 Braj Kishore Mishra and P.W. 8 Ramesh Chandra Dubey as witness to the occurrence. According to the above three witnesses, while they were returning to the village alongwith the deceased, they were waylaid by the accused appellants and the other two accused and that the deceased was indiscriminately attacked. They have further deposed that on being threatened by the accused, they went away from the scene of occurrence and later P.W. 6 went to the police station and gave fardbeyan, Ext. 5 to P.W. 9, Ramadhar Singh. We have perusea their evidence and it is now for us to decide, on the evidence and other materials, whether their evidence can be accepted to uphold the conviction of the appellants. 12. It is to be remembered that two of the accused, namely, A8 Patwari Rawani and A9 Maghu Rawani, whose names were mentioned in the fardbeyan, Ext. 5, given by P.W. 6 were acquitted by the trial court on the ground that they were not at the scene of occurrence, but were at the office of the Food Corporation of India, where they were employed, as the defence could successfully establish through the evidence of three defence witnesses and documents, Exts. A, C and D. The above fact, therefore, shows that two persons,• who were not at the scene of occurrence, were falsely implicated by P.W. 6 in the fardbeyan, Ext. 5, and they were also attributed with overt acts by the eye-witnesses, when they gave evidence in court. A, C and D. The above fact, therefore, shows that two persons,• who were not at the scene of occurrence, were falsely implicated by P.W. 6 in the fardbeyan, Ext. 5, and they were also attributed with overt acts by the eye-witnesses, when they gave evidence in court. Once we come to the conclusion that two of the accused were falsely implicated, then it becomes imperative for the Court to look at the evidence of the witnesses with more care and caution, specially when all the witnesses and the deceased belonged to one community and the accused belonged to a different community. We have already held that the witnesses have falsely implicated two accused and they were acquitted by the trial court, which acquittal had• become final. 13. Keeping the above facts in mind, when we look at Ext. 5, the fardbeyan, we have a suspicion that the said document could not have been given at 9.45 p.m. by P.W. 6 as claimed by him. A perusal of Ext. 5 shows that it was attested by P.W. 4, Jaleshwar Pandey and two other persons. P.W. 4, when specifically questioned, admitted in cross-examination that he did not go to the police station alongwith P. W. 6 to lay the complaint. P.W. 8, one of the witnesses, who was projected as an eyewitness, claimed that he accompanied P.W. 6 to the police station, but strangely his signature is not found in the complaint, Ext. 5, said to have been given by P.W. 6 So two things emerge from the above facts af1d they are (i) the signature of P.W. 4 Jaleshwar Pandey is found in the fardbeyan, Ext. 5, though he did not go to the police station alongwith P.W. 6 to lay the complaint and (ii) the signature of P.W. 8 is not found in the fardbeyan, Ext. 5, though he claimed to have gone to the police station alongwith P.W. 6. 14. At this juncture, it is necessary for us to go into the evidence of P.Ws. 5, 6 and 8. All the three witnesses have stated that while they were proceeding to the village alongwith the deceased, the deceased, was walking in front of them at a distance of 40 feets and it was a dark night. They have further admitted that two of them had Torch Lights, and with the help of Torch Lights, they saw the occurrence. All the three witnesses have stated that while they were proceeding to the village alongwith the deceased, the deceased, was walking in front of them at a distance of 40 feets and it was a dark night. They have further admitted that two of them had Torch Lights, and with the help of Torch Lights, they saw the occurrence. The Torch Lights, though according to the witnesses, were given to the police on the next day during investigation, were not seized by the Investigating Officer and not produced before the court. There is no explanation from P.W. 9 as to what prompted him not to seize those Torch Lights, specially when the witnesses have claimed that the occurrence was witnessed with the help of two Torch Lights. We find it bit difficult to accept that the witnesses would have been in a position to identify all the twelve accused on a dark night for P.W. 6 to mention all their names in the fardbeyan, Ext. 5. 15. Apart from the above fact, there are suspicious circumstances which create a doubt in the mind of the Court. All is not well as regards preparation of Ext. 5. P.W. 5, in the cross-examination, admitted that there is a Police Officer in Jasidih police station and his name is Prem Chand Malviya. He went on to admit that the said police officer is the son-in-law of Bhagwat Tiwary and that the said Prem Chand Malviya accompanied Ramadhar Singh was present throughout the investigation. According to him, the said Prem Chand Malviya did not return to the police station on the night alongwith P.W. 9, Ramadhar Singh, who conducted investigation on the next day. The said Prem Chand Malviya was not examined by the prosecution before the trial court. P.W. 9, in his evidence, has stated that he was not assisted by Prem Chand Malviya in the investigation. If Prem Chand Malviya had no role to play in the investigation conducted by P.W. 9, Ramadhar Singh, then there was no need or necessity for Prem Chand Malviya to have visited the scene village and be present during the course of investigation of P.W. 9. The version of the defence is that Prem Chand Malviya belonged to the community of the deceased and the witnesses and that he was instrumental in shaping the Ext. 5. The version of the defence is that Prem Chand Malviya belonged to the community of the deceased and the witnesses and that he was instrumental in shaping the Ext. 5. In the above circumstances, the defence version cannot be easily brushed aside. 16. Apart from the above, there are two other suspicious features in the prosecution version. We have already noticed that the post mortem Doctor conducted autopsy on the next day and issued Ext. 6, the post mortem certificate. We have perused the evidence of the Doctor as well as the certificate, Ext. 6. A perusal of Ext. 6 shows that the Doctor found undigested food in the stomach of the deceased. We cannot but remember, that, the case of the prosecution is that the occurrence took place at about 7.00 p.m., when the deceased was returning to his village alongwith three witnesses. If that be the case, the deceased could not have taken his dinner as he was only returning to the village after buying milk in a Lota. In the above circumstances, we are unable to understand as to how the stomach of the deceased contained undigested food. The Investigating Officer, P.W. 9, did not give any explanation and did not also disclose as to the nature of investigation conducted by him to find out as to when the deceased had his last meal; suffice it for us to say that normally no person takes his dinner before 7.00 p.m., specially when he was returning to his village with milk. The presence of undigested food is yet another suspicious feature in the prosecution version, which creates a doubt in the mind of the Court that whether the occurrence had taken place at 7.00 p.m. as claimed by the three witnesses. The second suspicious feature which we have noticed is that even, according to the prosecution, after the investigation was taken up, the Police Officer reached the scene of occurrence but could not find the dead body at the place where the occurrence has allegedly taken place. According to P.W. 9, he and the witnesses searched for the body throughout the night and gave up the task after mid night and the body was traced at 5.30 a.m., on the next day on the river bed. According to him, when he found the dead body of Surendranath Tiwary, it was found tied with bamboo and rope. According to P.W. 9, he and the witnesses searched for the body throughout the night and gave up the task after mid night and the body was traced at 5.30 a.m., on the next day on the river bed. According to him, when he found the dead body of Surendranath Tiwary, it was found tied with bamboo and rope. We are unable to understand as to why the accused, who, according to the witnesses, attacked the deceased in their presence, should take the trouble of removing the dead body from the place where he was attacked to a distance of more than 1 Km. and tie to a Bamboo pole with ropes. There is no explanation from the side of prosecution as to the nature of the investigation conducted by P.W. 9 on this aspect. The above facts, therefore, creates a suspicion about the veracity or truthfulness of the evidence of the witnesses, specially when we have found that two innocent persons have been implicated in a serious crime. We, therefore, do not find it safe to accept their evidences and giving the benefit of doubt to the accused-appellants, allow this appeal and set aside the order of conviction and sentence imposed upon the appellants. It is reported that the appellants are on bail. They are discharged from their bail bonds.