Judgment Shiva Kirti Singh and S.M.M.Alam JJ. 1. All the three appeals arise out of judgment and order dated 23rd February, 1988 passed by learned Additional Sessions Judge, X, Patna in Sessions Trial No. 238 of 1985 arising out of Maner PS Case No. 0071 dated 1.7.1982. Hence the appeals have been heard together and are being disposed of by this common judgment. 2. By the judgment under appeal the two appellants of Cr. Appeal No. 106/88 namely, Nitya Nand Singh and Ramanuj Singh and the sole appellant of Cr. Appeal No. 144/ 88 namely, Awadhesh Singh have been convicted for the offence under Sec. 302/34 and Sec. 201 of the Indian Penal Code. They have been awarded life imprisonment for the offence under Sec. 302/34 of the IPC but no separate sentence has been passed for the other offence. The sole appellant of Cr. Appeal No. 189/88 Ram Subhag Singh has been convicted for the offence under Sec. 302 and Sec. 201 of the IPC. For the offence under Sec. 302 IPC he has been awarded life imprisonment and like others he has not been awarded separate sentence for offence under Sec. 201 IPC. 3. The fardbeyan (Exhibit-4) given by informant, Suraj Muni Devi (PW-4) was recorded on 1.7.1982 at 11:30 a.m. at the alleged placed of occurrence which is Dalan of informant at Village, Sarai under Maner Police Station. According to fardbeyan the prosecution case in brief is that the informant who is wife of deceased, Shankar Bhagwan Sharma went to sleep at about 11:00 p.m. in Dalan along with her husband and children after having their meal. They slept in Dalan because they have no house for that purpose. In Dalan there were cots and one Chouki. Husband of the informant along with a child, Dharmendra Kumar slept on the Chouki. On the adjacent cot towards south the informant slept with her two minor children and further south to that cot her eldest son, Jitendra Kumar (PW-2) aged about 12 years slept on a separate cot. Adjacent north to the Chouki of her husband was another cot on which her daughter, Anita Kumari aged about 10 years had slept. Dalan has openings for entrance and exit both on the west and the east. Adjacent north to the Chouki of her husband was another cot on which her daughter, Anita Kumari aged about 10 years had slept. Dalan has openings for entrance and exit both on the west and the east. At about 1:30 in the night, she woke up on hearing a sound of fire-arm shot and saw a man standing near the head of her husband who was sleeping on the Chouki with his head towards west resting on a pillow. At that time another person came from the west and three persons came from the east inside dalan. The person standing near the head of her husband lighted a torch and in that light she recognized appellant, Ram Subhag Singh who had a Fasuli in his hand. Appellant, Awadhesh Singh caught the head of her husband and Ram Subhag Singh started cutting the neck of her husband with Fasuli. On this the informant started shouting then one man came near her whom she identified as Nitya Nand Singh. He threatened her not to shout otherwise she would be killed. She also saw Ramanuj Singh in the torch light who was suggesting Ram Subhag Singh to cut the neck and keep it in a plastic bag. Ram Subhag Singh acted accordingly. All the four accused-appellants lifted the dead body of her husband from the Chouki and kept it on the floor. She failed to identify the person who was lighting the torch. All the miscreants went away towards east with the severed head of her husband and the head could not be located till her fardbeyan. The occurrence was witnessed by Jitendra Kumar (PW-2) and her daughter Sunita (appears to be mistake for Anita, PW-3). The informant came out raising hulla and on that co-villagers, Dukh Haran Yadav and Jhagru Paswan (PW-6) as well as two persons from a neighbouring village, Rajnath Rai (PW-5) and Chandar Rai came and she disclosed the occurrence to those persons and also disclosed the names of the miscreants. They saw the headless dead body of her husband lying in Dalan. The reason for the occurrence was said to be land dispute since several years. 4. The fardbeyan as noticed above was recorded by Officer Incharge of Maner PS, SI, R.C. Singh and the investigation was handed over to an ASI, Bashistha Pandey (PW-8). They saw the headless dead body of her husband lying in Dalan. The reason for the occurrence was said to be land dispute since several years. 4. The fardbeyan as noticed above was recorded by Officer Incharge of Maner PS, SI, R.C. Singh and the investigation was handed over to an ASI, Bashistha Pandey (PW-8). He prepared inquest report (Exhibit- 6) and sent the dead body for postmortem examination through a constable and a Chaukidar, Chandan Paswan. He recorded further statement of the informant and inspected the place of occurrence. He prepared a sketch map of the place of occurrence and its neighbourhood which has been marked as Exhibit-9. After recording the statement of witnesses including PW-1, 2, 3, and 5, on the orders of the Superior Officers he ultimately submitted chargesheet against the named accused-appellants and after cognizance the case was committed to the court of sessions. The appellants pleaded not guilty to the charges framed against them. After trial they have been convicted by. the judgment and order under appeal. 5. In order to prove its case the prosecution has examined eight witnesses. PW-1, Kapildeo Singh, is father of the informant who has proved his signature on the inquest report as well as seizure list. Admittedly, he is a resident of another village at a distance of 4-5 miles from the village of occurrence. He has frankly deposed that on 1.7.1982 a Hajam (barber) came to his village to inform him that his son-in-law, Shankar Bhagwan Sharma has been killed. After hearing this he proceeded from his home and reached village, Sarai at about 10:00 p.m. Thereafter police arrived and inquest as well as seizure was made in his presence. He has admitted that the barber had been sent by Jitendra (PW-2). PW-2, Jitendra Kumar, PW-3, Anita Kumari and PW-4, Suraj Muni Devi are son, daughter and wife respectively of the deceased. They have claimed to be eyewitnesses of the alleged occurrence. PW-5, Rajnath Rai is a resident of neighbouring village. He claims to have reached the house of the deceased at about 6:00 a.m. and seen commotion. He has claimed that the details of the occurrence was disclosed by the informant. He has admitted that in the past, four persons had been killed due to enmity including, Bhuwan a brother of the deceased. He claims to have reached the house of the deceased at about 6:00 a.m. and seen commotion. He has claimed that the details of the occurrence was disclosed by the informant. He has admitted that in the past, four persons had been killed due to enmity including, Bhuwan a brother of the deceased. He has also admitted that he had land dispute with one Chaudhary and in that dispute appellant, Awadhesh Singh had sided with the said Chaudhary. He claimed that one Dukh Haran Rai, a neighbour of the informant was also present as per his earlier statement recorded by the LQ. PW-6, Jhagru Paswan is a covillager of the informant but he has been simply tendered for cross-examination. PW-7, Dr. S.N. Barnwal held autopsy on the dead body of the deceased and has proved postmortem report as Exhibit-3. PW-8, ASI, Bashistha Pandey had investigated the case as the I.O. 6. Before proceeding to examine the evidence, of witnesses, particularly the eyewitnesses in detail for the purpose of deciding the relevant issues, it will be useful to notice some salient features of the case. All the four appellants are own brothers and admittedly they had land dispute with the prosecution party leading to a title suit which had already been decided in favour of the appellants but an appeal was preferred by the deceased which was pending at the time of the alleged occurrence. Thus, there is admitted enmity between the parties and all the three eyewitnesses are therefore inimical, related as well as interested. The law is well settled that in such a situation the evidence of such interested witnesses must be scrutinized with great care and caution. 7. On behalf of the appellant, it has been submitted that the defence does not dispute the place of occurrence or the medical evidence showing that the deceased had died on account of cutting of neck but the time of occurrence and the manner of occurrence have been fabricated with a view to implicate persons, all four brothers with whom the prosecution party was having land dispute since many years. It was submitted that, in fact, the occurrence could have taken any time during night or even earlier because the postmortem report shows time elapsed since death to be within 36 hours and the postmortem examination was conducted at 5:00 p.m. on 1st of July, 1982 itself, but information was sent to the police belatedly and fardbeyan was given by the informant only after arrival of her father, PW-1 and after holding consultation with him. It was further submitted that the story given by the informant that she heard a sound of firing and as a result she woke up has not been supported by PWs-2 and 3 who have claimed that they woke up when they heard the cries of informant. It was also submitted that the informant has admitted that none of the accused-appellants were carrying fire-arms nor there was any injury of fire arm on the deceased. The submission is that an imaginary story was fabricated without caring to explain who could fire in the dead of the night and for what purpose. It was also submitted that it is remarkable that no person of the neighbourhood from the village of occurrence has been examined to corroborate the time of the occurrence or that there was any firing or shouting or hulla at about 1:30 in the night. It was pointed out that PW-5 has admitted to be from a neighbouring village and he came only at about 6:00 a.m. in the morning and still he found commotion at the place of occurrence. Thus it was submitted that murder of the deceased was committed in the dark hours and since nobody had seen the actual occurrence, after consultation with PW-1, her father, the informant gave her fardbeyan to implicate covillagers, the appellants with whom there was land dispute and the deceased had already lost in the title suit. 8. It was further submitted on behalf of the appellants that a close scrutiny of the evidence of the eyewitnesses would show that they have given manner of assault on the deceased which is improbable. It was highlighted that according to paragraph-21 of the deposition of PW-2, the neck of the deceased was gradually sawed off by 10-12 attempts; On the other hand, according to PW-3, 5-6 blows of Fasuli were given on the neck of the deceased. It was highlighted that according to paragraph-21 of the deposition of PW-2, the neck of the deceased was gradually sawed off by 10-12 attempts; On the other hand, according to PW-3, 5-6 blows of Fasuli were given on the neck of the deceased. The medical evidence, on the other hand, discloses that the neck portion had a sharp cut by heavy weapon and all structures including vessels and bones were cut at the same level. The medical evidence also show three lenient incision, 3" long over the left shoulder as well as an incised wound 2"x1/2"x skin deep on the lower part of the left forearm. 9. In view of the submissions noticed above and the issues raised by the learned counsel for the appellants the evidence of the eyewitnesses PWs-2, 3 and 4 was analysed with care and caution. It is clear from the evidence of the three eyewitnesses that according to them the deceased offered no response when only his head was held by one person and the only assailant cut his neck either by sawing it or by giving 5-6 blows. Specifically witnesses have stated that no other accused except Awadhesh who had caught the head, had caught any part of the body of the deceased at the time of assault. There is no allegation that any blow was given on the shoulder or on the arm of the deceased. On the other hand, the postmortem report shows that there were some more injuries on the person of the deceased besides the cutting of neck. The clear cutting of neck at one level shows, according to doctor, use of a sharp weapon with great force. If the deceased had not been overpowered by his assailants and therefore, was in a position to resist, fight or flee, he could not have been prevented from doing so effectively only by one person holding his head. The most important aspect to be noticed is that such inaction on the part of the deceased who according to witnesses did not attempt to fight or runaway is highly unnatural and improable. Even in cross-examination, PW-3 has stuck to the prosecution case and replied that the deceased only writhed but did nothing else. 10. The most important aspect to be noticed is that such inaction on the part of the deceased who according to witnesses did not attempt to fight or runaway is highly unnatural and improable. Even in cross-examination, PW-3 has stuck to the prosecution case and replied that the deceased only writhed but did nothing else. 10. From the evidence of PWs-2 and 3 it transpires that they have not claimed to have heard any sound of firing and they woke up hearing the cries of the informant. From the evidence of PW-3 in paragraphs-11 and 13 as well as evidence of PW-4 in paragraphs 9 it is clear that houses of Ram Ekbal Kishun Mahto, Dipu Singh and Denandan Singh are situated in neighbourhood. This is also reflected by the sketch map prepared by the I.O. and exhibited as Exhibit-9. None of the aforesaid neighbours have come forward to support the prosecution case even in part that any firing or commotion was heard by them at about 1:30 in the night. On the important point of time of the alleged occurrence even such corroboration would have been of great help to the prosecution. Jhagru Paswan, PW-6 who is the only co-villager was named as a witness in the fardbeyan on the point that he along with Dukh Haran Yadav arrived on hearing the cries of the informant after the occurrence. Such important witness, for no apparent reason has not not been examined in chief and has merely been tendered for cross-examination. As noticed earlier PW-5, Rajnath Rai is a resident of another village which as per evidence is situated at about one mile. His deposition that he arrived at the house of the informant at 6:00 a.m. in the morning to some extent supports defence case that actually the crime was detected later in the morning and thereafter the commotion started. The I.O. (PW-8) found blood on the chauki of the deceased and on ground nearby and also blood spots on walls but surprisingly no blood marks were shown or found on beddings or cloths of the witnesses allegedly sleeping on the adjacent costs. 11. PW-2, Jitendra Kumar a son of the informant and the deceased has admitted that he had sent a barber to inform PW-1 and he had not disclosed the name of the assailants to that barber. 11. PW-2, Jitendra Kumar a son of the informant and the deceased has admitted that he had sent a barber to inform PW-1 and he had not disclosed the name of the assailants to that barber. He had gone to the house of the barber atabout 7:00 a.m. in the morning and thereupon the barber had come to his house and then he went to call PW-1, Kapil Deo Singh. PW-1, Kapil Deo Singh, father of the informant has also deposed that the barber sent by PW-2 had simply disclosed that his son-in-law had been murdered. Clearly names of the assailants had not been disclosed to such a important messenger who had gone to seek help from a close relation of the informant. Such failure of PW-2 and inmates of the house to disclose the names of the assailants to the barber even at 7:00 a.m. and to PW-1 in the morning supports the defence claim that the name of the assailants was not known to the prosecution and a case was fabricated against enemies on the advice of PW-1 after he arrived in PO village at about 10:00 a.m. 12. There is no cogent explanation on record as to why the barber or persons in the immediate neibourhood including Dukh Haran Yadav whose name is mentioned in the fardbeyan as witness who came on nulla were not examined as witnesses during trial. On a close scrutiny of the ocular evidence of interested and inimical witnesses such as PWs-2, 3 and 4 it is found that it is not safe to rely upon their testimony that they were present in the Dalan at the time of the alleged occurrence or that the occurrence took place at 1:30 in the night in their presence. Had there been reliable corroboration that there was bulla at about 1:30 in the night and the witnesses from the neighbourhood came and saw the dead body at that time, some other lapses on the part of the prosecution may have been ignored but in absence of such corroboration coupled with the lapses like non-disclosure of name of the assailants to the barber and even father of the informant, PW-1 raises serious doubts regarding the prosecution case, particularly regarding time and manner of the alleged occurrence. 13. 13. It has rightly been submitted by the counsel for the appellants that after success in the civil suit the appellants did not have any apparent motive for committing such a crime and the enmity between the parties, in the facts and circumstances could work more against the appellants leading to their false implication. It was also shown that although in the deposition in court the informant PW-4 has claimed that the appellants had threatened her husband for which he had filed some petition to an Executive Officer in the year 1979 but the factum of such threat was neither mentioned in the fardbeyan nor in her subsequent statement under Sec. 161 Cr.P.C, as clarified by the I.O., PW-8 in paragraph-29 of his deposition. 14. In view of the aforesaid discussions it is found that the prosecution has failed to. prove its case against the appellants beyond reasonable doubts. The submissions advanced on behalf of the appellants appear to have substance, particularly in respect of the time and manner of occurrence. Hence the appellants are found entitled to benefit of doubt. They are accordingly acquitted of all the charges. All the three appeals accordingly stand allowed. It appears that all the four appellants are on bail, hence they shall stand discharged from the liabilities of their bail bonds.