Judgment SHIVA KIRTI SINGH, J. 1. By judgment dated 1.10.2002 passed in Sessions Trial No. 25/2001/350/2002 the learned Additional Sessions Judge/FTC-III. Gopalganj has convicted all the three appellants of the charge under sec. 302 read with Sec. 34 of the Indian Penal Code (hereinafter referred to as the IPC) and also of charge under sec. 27 of the Arms Act. By order dated 5.10.2002 they have been awarded life imprisonment and R.I. for three years respectively for the aforesaid charges. 2. The prosecution case is based upon Fardbeyan of P.W. 3 Kamla Sah recorded on 28.7.2000 at 16.45 hours at the alleged place of occurrence by S.I. Manoj Kumar Mahto (P.W. 5) of Fatuha O.P. The prosecution case in brief is that on 28.7.2000 at about 11 A.M. the informant along with his son Jyoti Sah (deceased) and other members of his family was working and at that time the three appellants along with two others came to his house and called Jyoti Sah to come their house for paying arrears of wages, Jyoti went with them. After sometime sound of firing was heard. On hearing that sound the informant proceeded to Darwaja of Jamadar Singh to see his son and there he saw Jyoti tied to a guava tree with rope. He was hanging downward on account of injury by a fire arm shot. On seeing this the informant raised hulla and ran towards his house in the village, in the meantime the accused persons dragged the deceased 25 meters towards east but when they saw the informant and others coming back then they ran away towards south. 3. On the basis of Fardbeyan Mirganj P.S.Case No. 167 of 2000 dated 28.7.2000 was registered. After investigation police submitted charge sheet against three appellants and two others. Learned Magistrate took cognizance and committed the case to the court of sessions where the accused persons pleaded not guilty to the charges. They were tried and two of the accused persons were acquitted. The three appellants have been convicted and sentenced by the judgment under appeal in the manner noticed earlier. 4. From the trend of cross-examination of the witnesses, the defence of the accused persons is total denial of their involvement in the alleged occurrence. They were tried and two of the accused persons were acquitted. The three appellants have been convicted and sentenced by the judgment under appeal in the manner noticed earlier. 4. From the trend of cross-examination of the witnesses, the defence of the accused persons is total denial of their involvement in the alleged occurrence. Their specific defence is that they are residents of another village and by virtue of their ancesters marriage in the village of occurrence they inherited some property there and they are doing cultivation work over such land which originally belonged to Sahi family and on that account there has been dispute and enmity with Uday Bhan Sahi (C.W. 1) and his family. Their defence is that they are innocent and have been implicated in the present case at the instance of C.W. 1 Uday Bhan Singh. 5. The prosecution, in order to prove its case has examined 7 witnesses in all. Two witnesses have been examined as court witnesses. The defence has not led any evidence. 6. P.W. 1 Tuntun Sah is the nephew of the informant. (P.W. 3) and brother of Bharat Sah (P.W. 2). He has been declared hostile and is of no help to the prosecution. He has simply denied to know anything regarding the occurrence and in cross-examination he has stated that in the murder of Jyoti the five accused had no hands. P.W. 2 Bharat Sah has claimed to be an eye witness of part of the alleged occurrence. According to him all the five accused persons came to his Darwaja and took Jyoti Sah with them saying that he should collect his wages. After some time he heard the sound of fire shot and allegedly he and his uncle Guli Sah (not examined) went to the place of occurrence and saw Jyoti Sah tied to a guava tree. He was besmeared in blood and was dead. Allegedly, appellant Jamadar Singh advised the accused persons to run away before the arrival of the villagers and the witness saw Sudama Singh with a country made fire arm and appellant Pradip Singh with a Chhura. Thereafter villagers arrived and later police came and seized blood-stained earth and rope and also took the dead body of Jyoti Sah. In cross-examination he has admitted that his family was regularly working for appellant no. 1. Thereafter villagers arrived and later police came and seized blood-stained earth and rope and also took the dead body of Jyoti Sah. In cross-examination he has admitted that his family was regularly working for appellant no. 1. Jamadar Singh and there had never been any dispute over wages nor there was any litigation between them. In cross-examination he has stated that Jyoti Sah was tied with a rope and was hanging from a guava tree. His waist, legs and hands were also tied and when he reached there all the accused persons were present and when after ten minutes other villagers came they fled away. He could not remember what clothes were wore by the deceased. He has categorically claimed that no person from the family of C.W. 1 was informed about the occurrence and nobody from his family came to the place of occurrence. The witnesses claimed that he went away to inform the family members and when he again came to the place of occurrence then he found the dead body in a bush amidst bamboo dumb which is part of an orchard of 5-6 Bighas. 6. P.W. 3 Kamla Sah is the informant. In examination-in-chief he has stated that at about 12 in the noon he had gone to uproot grass in his field. His son Jyoti Sah (deceased) was at his Darwaja up-rooting paddy seedlings. Appellant no. 1 Jamadar Singh and three unknown persons came and called his son Jyoti Sah saying that somebody was calling him for panchayatee. He can recognise those who came and called his son. Thereafter sound of a fire arm shot was heard. On hearing that sound the informant went to the place of occurrence and found that no other person was present there. He saw his son Jyoti Sah tied to a guava tree near Darwaja of Jamadar Singh and he was dead. The head had fallen towards the ground and the body was besmeared with blood. He gave his statement to the police officer and also put his thumb impression on that statement. He has claimed to have known all the five accused persons present in dock. The head had fallen towards the ground and the body was besmeared with blood. He gave his statement to the police officer and also put his thumb impression on that statement. He has claimed to have known all the five accused persons present in dock. In cross-examination he has admitted that he had gone to up-root grass in some Chawar which is at a distance of one mile from his house and he remained in the Chawar till 2 P.M. There he received information that somebody had called his son then he went back to his house with the grass. Nobody told him who had called his son. He has further admitted that he has no dispute of any kind with Jamadar Singh. He has admitted that on the east of house of Jamadar Singh there is an orchard and growth of wild bushes. In cross-examination also he has reiterated that when he reached the guava tree where the dead body was present, there was no other person present at that place. He has admitted that Jamadar Singh lives in that village on account of inheritance of property and therefore he has made a house there and he has dispute with the family who were original owners of that property, in other words, the family of C.W. 2. Udai Bhan Sahi and between them there had been litigation also. He has disowned his fardbeyan by stating in cross-examination that his thumb impression was taken by the police officer on a plain piece of paper. He has further stated that he has no suspicion on Jamadar Singh or any member of his family. He has admitted that earlier his son (deceased) had been to jail in connection with a case. 7. Before coming to the medical evidence adduced by Doctor Brajender Singh (P.W. 4) and the evidence of the investigating officer Manoj Kumar Mahto (P.W. 5) it will be useful to first notice the evidence of C.W. 1 Uday Bhan Sahi who has deposed as an eye witness of the alleged occurrence. He has claimed that at about 11 in the day on 28.7.2000, Friday he was going to see his field and at that time he saw that five accused persons had jointly tied Jyoti Sah (deceased) to a guava tree and were assaulting him. After such assault by ali the five accused, appellant Pradip Singh assaulted him with Churi. He has claimed that at about 11 in the day on 28.7.2000, Friday he was going to see his field and at that time he saw that five accused persons had jointly tied Jyoti Sah (deceased) to a guava tree and were assaulting him. After such assault by ali the five accused, appellant Pradip Singh assaulted him with Churi. Thereafter Jamadar Singh ordered Sudama Singh to assault with country made pistol. The witness has claimed only to have heard the sound of fire arm shot. Thereafter he saw all the accused persons dragging the dead body towards east to the Jungle situated nearby. He claimed to identify all the five accused persons but wrongly named Pradip (appellant no. 3) and one Munna Singh. In cross-examination this witness has claimed that infront of his eyes two chhura injuries were inflicted on the abdomen of Jyoti Sah by piercing the chhura in straight manner at two places. He has claimed that the fire arm shot was fired at the head of Jyoti Sah from a very close range and the bullet crossed through and through the head but brain matter had not come out. He claimed that on hearing the sound of fire he had hidden himself behind bushes on the northern side and the accused persons had dragged the dead body and thrown it amongst bushes in the eastern side and till then nobody had come at the place of occurrence. He has also stated that when the accused persons were tying Jyoti Sah to the tree Jyoti Sah was shouting but nobody came on such hulla and this witness also raised hulla but nobody came. But later he has claimed to have seen the entire occurrence and the throwing of the dead body towards east while hiding behind bushes According to him till the dead body was thrown amidst bushes nobody had come and therefore no other person could have seen the deceased being tied with guava tree, he has claimed that while the dead body was being dragged from guava tree towards bushes, blood was flowing out. 8. P.W. 4 the doctor has found altogether three injuries on the person of the deceased. They are as follows : (I) Lacerated wound 1" x 1/2" x cavity deep cutting inner side of skull on opposite side situated below right ear. 8. P.W. 4 the doctor has found altogether three injuries on the person of the deceased. They are as follows : (I) Lacerated wound 1" x 1/2" x cavity deep cutting inner side of skull on opposite side situated below right ear. (II) charred oval lacerated wound 1/3" x 1/3" x 5 in numbers on right flank i.e. wound of entry. (Ill) Lacerated wound at the top of left hand index finger. 9. According to the findings of the doctor only injury no. 11 which was in the right flank (mid portion of the body) could be caused by fire arm as it was charred indicating wound of entry. The other two injuries were lacerated and he opined that injury no.1 was by sharp long pointed weapon, may be a dagger. In cross-examination he has admitted that there is difference betweeen lacerated wound and sharp cutting wound and lacerated wounds are usually caused by hard and blunt substance whereas sharp pointed weapons caused either sharp cutting injury or punctured wound. 10. P.W.5 the Investigating Officer has proved the fardbeyan as Ext.2. He has also claimed to have seized the blood stained earth near the guava tree and a rope, the seizurelist has been proved as exhibit-3. He has also deposed regarding earlier statement of P.W. 1. Tuntun Sah recorded under sec. 164 Cr.P.C. according to which Pradip Singh had aliegedy given knife blow in the abdomen of the deceased and Sudama Singh had caused fire arm injury in his hand. In paragraph-6 of his cross-examination, the I.O. has admitted that information of the occurrence was given by the Chaukidar prior to 16.45 hours at the police station. He has deposed that in the information of chaukidar full description of the occurrence was given but the I.O. failed to recollect whether such statement of the chaukidar was recorded or not. He has further said that during investigation he never recorded the statement of the chaukidar and therefore the chaukidar was not named as a witness in the chargesheet. The I.O. found blood on the earth near the guava tree but no blood spot was found on the leaves or trunk of the guava tree. Between guava tree and the place where the dead body was found the I.O. found no dragging mark or blood mark. The I.O. found blood on the earth near the guava tree but no blood spot was found on the leaves or trunk of the guava tree. Between guava tree and the place where the dead body was found the I.O. found no dragging mark or blood mark. He has admitted that there are houses of several persons in the neighbour-hood of the place of occurrence but he did not examine any person from those houses. 11. P.W. 6 Onkar Nath Trivedi is a Judicial Magistrate who had recorded statement of two witnesses under sec. 164 Cr.P.C. P.W. 7 Jitendra Kumar Singh is a constable and a formal witness who has proved the formal F.I.R. as Ext.6. C.W. 2 Mahanth Sah is a witness whose statement was earlier recorded under section 164 Cr.P.C. but in court he has denied to have any knowledge of the occurrence and has not supported the prosecution case. 12. On behalf of appellants it has been submitted that from the evidence of the Investigating Officer, P.W. 5, it transpires that earliest version of the occurrence was given by the chaukidar at the police station prior to recording of fardbeyan but that information was supressed and the fardbeyan proved in court as Ext. 2, has been prepared as an after thought at the instance of enemies of the appellants particularly court witness no. 1. It was further submitted that even this fardbeyan has been disowned by the informant, P.W. 3 who is father of the deceased who is not likely to spare the guilty person responsible for murder of his son. It was highlighted that according to the deposition of the informant, particularly in view of his statement in cross-examination it is clear that he did not see the persons who had called the deceased and even according to his nearsay version given in the examination-in-chief, appellant Jamadar Singh and four other persons had informed the deceased that somebody was calling him for the purpose of Panchayatee. On the basis of evidence of the informant it was rightly submitted that the informant has not even suspected the appellants and has admitted that there was no enmity with the appellants. 13. The next submission on behalf of the appellants is that a perusal of the fardbeyan would show that it contains no motive for the alleged occurrence nor any motive has been alleged during trial. 13. The next submission on behalf of the appellants is that a perusal of the fardbeyan would show that it contains no motive for the alleged occurrence nor any motive has been alleged during trial. The fardbeyan further shows that no names of any witness was disclosed in the fardbeyan and from the entire evidence adduced in court it appears that P.W. 2 (brother of P.W. 1 and nephew of P.W. 3) had wrongly claimed to be an eye witness of a part of the alleged occurrence. It was submitted that according to P.W. 2 he was accompanied by his uncle Guli Sah but Guli Sah was never examined by the prosecution to corroborate such claim and from the evidence of the informant it is clear that he alone had reached the place of occurrence on hearing the sound of fire shot and at that time he found no one present at the place of occurrence. It has been submitted that there is every chance of appellant no. 2 coming under influence of C.W. 1 to give names of the appellants and depose falsely but there is no chance of father of the deceased P.W. 3 favouring the accused persons by deposing falsely. 14. It was further submitted on behalf of appellants that none of the witnesses except C.W. 1 has claimed to have seen the actual assault on the deceased. His version is not at all supported by the medical evidence because according to C.W. 1 assault by Chhura was made twice by stabbing in the abdomen and fire arm injuries were caused on the head whereas the medical evidence is contrary and shows that fire arm injury was in the abdomen whereas the injury on the skull was a lacerated injury caused by some other weapon. 15. On behalf of State it was submitted that P.W. 2 has claimed to be present with the deceased when he was called by five persons including the three appellants and since after some time the deceased was found in dead condition, death of the deceased must be in the special knowledge of the appellants and since they have failed to give any explanation as to what happened to the deceased and how he died, such failure of the appellants to give explanation shall be a further link in the chain of circumstances showing the guilt of the appellants. In support of aforesaid fact reliance has been placed upon two judgments of the Apex Court in the case of Subarmani Vs. State (2004 SCC Cri 1064) and State of Rajsthan Vs. Kashi Ram (2007)1 SCC (Cri) 688. 16. On behalf of appellants it was submitted that the fact of being last seen with the deceased must also be conclusively and specially proved by the prosecution through reliable evidence. It was pointed out that the claim of P.W. 2 of being a witness is not fully reliable as he being a family member is not named as a witness in the fardbeyan nor his uncle who allegedly accompanied him has been examined as a witness. In such circumstances corroboration must be looked for to accept his claim. There is no other witness except P.W. 3 who can be considered for such corroboration. P.W. 3 has named only appellant no. 1. Jamadar Singh being one of several other persons not known to the informant who were reported to have informed the deceased that he was calling by somebody for panchayatee. It has been submitted that such statement of the informant cannot amount to corroboration of the evidence of P.W. 2 which is quite different in tone and tenor. It has further been submitted that the trial court has already disbelieved part of the testimony of P.W. 2 while acquitting two of the accused persons by the judgment under appeal. 17. On a careful consideration of rival submissions and on appreciation of the entire evidence available on record, we are in agreement with the submissions advanced on behalf of the appellants that there is no reliable eye witness of the alleged occurrence and even if the evidence of P.W. 3 the informant be treated as corroborating the evidence of P.W. 2 in respect of name of appellant no. 1. Jamadar Singh that he was one of the several persons who had informed the deceased to go to the place of occurrence, evidence of P.W. 3 requires to be given superior status and weightage being that of father of the deceased and in the light of his deposition in court it is found not safe to treat appellant no. 1 Jamadar Singh to be involved in the offence of murder of the deceased. In absence of any reliable eye witness, the charg of murder must be established by circumstances. 1 Jamadar Singh to be involved in the offence of murder of the deceased. In absence of any reliable eye witness, the charg of murder must be established by circumstances. Since the father of the deceased has clearly stated that he does not suspect the appellants and there is no enmity with them, in the facts of the case chain of circumstances is found to be totally incomplete and inadequate for conviction of appellant no. 1. Jamadar Singh. The other circumstances such as suppression of the version given by the chaukidar and vital differences between the medical evidence and ocular evidence also create serious doubt regarding the truthfulness of the prosecution case. 18. In such circumstances, we find that the appellants deserve to be given benefit of doubt. Accordingly, the appeal is allowed, appellants are acquitted of all the charges levelled against them. It has been informed that appellant no. 2 Sudama Singh is in jail custody. He should be released forthwith if not required in any other case. The other two appellants appellant no. 1 Jamadar Singh and appellant no. 3 Pradip Singh shall stand discharged from the liability of their bail bonds.