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Jharkhand High Court · body

2009 DIGILAW 818 (JHR)

Azad Ansari v. State of Jharkhand

2009-05-22

N.N.TIWARI, PRASHANT KUMAR

body2009
JUDGMENT Prashant Kumar,J: In these appeals i.e. Cr. A.(DB) No. 144 of 2002 filed by Azad Ansari, Rajjak Ansari and Tamizuddin Ansari and Cr.A. (DB) No. 80 of 2002 filed by Indra Prasad Sah, Jalo Mian, Musu Mian, Botha Mian and Samsuddin Mian, the appellants have challenged the judgment of conviction and order of sentence dated 18.02.2002 passed by 1st Additional Sessions Judge, Godda in S.T. No. 56 of 1998/59 of 2001 whereby and whereunder they had been convicted under section 302/149 of the IPC and sentenced to undergo imprisonment for life. They were also ordered to pay fine of Rs. 10,000/-each and in default of payment of fine, sentenced to undergo R.I. for five years. 2. Since the aforesaid two appeals arise out of the common judgment of learned court below, both the appeals are heard together and are being disposed of by this common judgment. 3. The case of prosecution in short as per the fardbeyan of Gol Nisha Bibi is that on 24.7.1998 her husband Sobrati Mian along with his son Manir Ansari and a ploughman went to Hira Bahiar for ploughing the land. At that time informant was also present at that place. The elder brother of her husband, namely, Ashif Mian, his wife and daughter, namely, Mariyam Bibi and Asiran Khatoon respectively were there in their own land situated by the side of the land of the informant. It is stated that while her husband was getting the said land ploughed through the ploughman, at about 7 a.m. appellants along with three female accused persons i.e. wife and mother-in-law of Azad Ansari and wife of appellant Jalo Mian variously armed, arrived at the place of occurrence. Appellant Samsuddin Mian exhorted Azad Ansari to kill informant’s husband in order to finish the land dispute, whereupon all the accused persons proceeded to surround the informant’s husband, however, he escaped and fled away towards South Dumri Tola. It is alleged that in the meanwhile, appellant Azad Ansari assaulted the ploughman with butt of his pistol, due to that the ploughman received injury on his head. Thereafter on being again exhorted by Samsuddin, all the accused persons rushed to chase Sobrati Mian (deceased). The informant, her son, daughter and her brother-in-law Ashif Ansari, his wife Mariyam Bibi and daughter Asiran Khatoon followed the accused persons. Thereafter on being again exhorted by Samsuddin, all the accused persons rushed to chase Sobrati Mian (deceased). The informant, her son, daughter and her brother-in-law Ashif Ansari, his wife Mariyam Bibi and daughter Asiran Khatoon followed the accused persons. It is alleged that the accused persons overtook and surrounded her husband near Dumri Tola. Azad Ansari and Rajjak Ansari assaulted him by butt of musket (gun) and sword respectively. Other accused persons also repeatedly assaulted him with lathi and bhala. When her husband fell on the ground, the informant and her relatives begged Rajjak Ansari and Azad Ansari to spare her husband but Rajjak Ansari and Azad Ansari asked the informants and her relatives to go away or otherwise face the consequence. The wife and mother-in-law of Azad Ansari and wife of Jalo Mian then dragged her injured husband, by holding his leg and hand, up to the Tanr and thereafter Azad Ansari and Rajjak Ansari dragged her husband up to western bank of Samar Pokhar and again all the accused persons mercilessly assaulted him there. When the informant and her relatives raised alarm and some villagers rushed, the accused persons fled away. Thereafter, the informant and her relatives went near Sobrati(deceased). They found injuries on different parts of his body. When her husband was in jail, Azad Ansari and Rajjak Ansari, by playing fraud, got a transfer deed executed in their favour in respect of 4 kathas of land of her husband. The informant’s husband was not accepting the said deed executed in favour of Azad Ansari and Rajjak Ansari and was ploughing the said land. That was the reason for the occurrence and finishing Sobrati. 4. On the basis of aforesaid fardbeyan, police instituted Godda (T) P.S. Case No. 218 of 1998 dated 24.7.1998 under section 147, 148, 149, 323, 302 of the IPC and took up investigation. After completing the investigation, police submitted charge sheet against appellant Azad Ansari, Rajjak Ansari, Tamizuddin Ansari, Jalo Mian, Noor Nisha Bibi, Khatoon Bibi and Koili Bibi under section 147, 148, 149, 323 and 302 of the IPC. After the cognizance, the case was committed to the court of sessions, as the offence under section 302 of the IPC is exclusively triable by the court of sessions. After the cognizance, the case was committed to the court of sessions, as the offence under section 302 of the IPC is exclusively triable by the court of sessions. Initially, vide order dated 3.12.1999 the charges were framed against the aforesaid seven charge sheeted accused persons under section 302/149 and 323 of the IPC. The said charges were read over and explained to the accused persons to which they pleaded not guilty and claimed to be tried. The prosecution examined witnesses in support of its case. In the court, witnesses taken the name of Samsuddin Mian, Indra Prasad Sah, Botha Mian and Musu Mian, therefore, learned court below summoned them for facing the trial as per the provisions contained in section 319 of the Code of Criminal Procedure. It then appears that after appearance of aforesaid four appellants, learned court below vide order dated 1.2.2001 framed charge against them under section 302/149 and 323 of the IPC and explained the same to aforesaid accused persons to which they pleaded not guilty and claimed to be tried. It further appears that thereafter on the request of aforesaid accused persons; P.Ws. 9, P.W. 11, P.W. 12, P.W. 13 and P.W. 14 were recalled for cross examination. It appears that thereafter P.W. 15 doctor and P.W. 16 I.O. have been examined. Thereafter statements of accused persons including the appellants was recorded under section 313 Cr.P.C. in which their defence was of total denial and false implications. Learned court below after considering the evidence available on record, convicted the appellant under section 302/149 of the IPC and sentenced them to undergo imprisonment for life and also to pay fine of Rs. 10,000/-each and in default of payment of fine they have been sentenced to undergo R.I. for five years. By the said judgment, learned court below acquitted the female accused persons, namely, Khatoon Bibi, Noor Nisha and Koili Bibi for the offence under section 302/149 of the IPC but, they were convicted for the offence under section 323 of the IPC and directed to execute bond of Rs. 2000/-for the period of one year, for keeping peace and good behaviour. 5. Challenging the judgment of learned court below, it has been submitted by learned counsels for the appellants that in the instant case the prosecution tried to prove its case on the basis of depositions of P.Ws. 2000/-for the period of one year, for keeping peace and good behaviour. 5. Challenging the judgment of learned court below, it has been submitted by learned counsels for the appellants that in the instant case the prosecution tried to prove its case on the basis of depositions of P.Ws. 9, 11, 12, 13 and 14 who are closely related to each other. It has also come in the evidence of P.W. 13 that there is a land dispute between informant’s party and appellants. It is submitted that the evidence of aforesaid witnesses is self contradictory or contradictory to each other and they have made different statements at different stages. It is submitted that in view of the aforesaid discripency in the evidence of P.Ws. 9, 11, 12 , 13 and 14, who are interested in the case of prosecution, the conviction of these appellants cannot be upheld unless their evidence finds support form independent sources. It has come in the evidence of P.Ws. 9, 13 and 14 that the statement of P.W. 13 was recorded by the Officer-in-Charge at the police station on which she put her LTI but the said statement has not been made basis for institution of FIR and a subsequent statement of informant recorded by the I.O. near the place of occurrence was made basis for institution of the case. Accordingly, it is submitted that the fardbeyan of this case is hit by section 162 of the Code of Criminal Procedure. It is further submitted that for not bringing the first statement, which was recorded at the police station, on the record, an adverse inference has to be drawn against the prosecution. The genesis of occurrence has also not been proved in this case, which also cast a serious doubt on the case of prosecution. In view of the aforesaid contention, it is submitted that the appellants are entitled to be given benefit of doubt and therefore, the judgment of court below cannot be sustained. 6. On the other hand, learned Additional P.P. submitted that the statements of P.Ws. 9, 11, 12, 13 and 14, who are eye witnesses of the occurrence, are wholly reliable and find full corroboration from the medical evidence as well as the physical finding of the I.O. Learned court below has rightly accepted the evidence adduced by aforesaid witnesses and has rightly convicted and sentenced the appellants. 9, 11, 12, 13 and 14, who are eye witnesses of the occurrence, are wholly reliable and find full corroboration from the medical evidence as well as the physical finding of the I.O. Learned court below has rightly accepted the evidence adduced by aforesaid witnesses and has rightly convicted and sentenced the appellants. Thus, the impugned judgment does not require any interference by this Court. 7. Having heard the submission, I have carefully gone through the evidence available on record. P.W. 15 Dr. Pradeep Kumar Sinha, who held autopsy on the dead body of deceased (Sobrati Mian) found several injuries on his dead body and opined that the said injuries were caused by sharp cutting weapon and hard and blunt substance. He has also given opinion that the said injuries were ante mortem in nature and the deceased had died due to shock and haemorrhage, as a result of injury sustained by him. From perusal of cross examination of doctor, I find that the findings given with regard to cause of death of deceased has not been challenged by defence. Thus, in my view, the homicidal death of deceased (Sobrati Mian) is not under challenge and therefore, the same has been established by the prosecution. 8. Now the question remains to be decided in this case, as to whether, these appellants are the author of present crime? I scrutinized the evidence of the prosecution witnesses. P.W. 1 Jogeshwar Yadav, P.W. 2 Jiyalal Sahu, P.W. 3 Hiralal Yadav, P.W. 4 Halumuddin Ansari, P.W. 5 Kedar Yadav and P.W. 7 Haffimudin Ansari have been declared hostile as they have not supported the case of prosecution. Their attention was drawn to their previous statement made before the police with a view to impeach their credibility by getting the said contradiction proved by I.O., but from perusal of evidence of P.W. 16, I find that the prosecution has not taken pain to prove the contradictions. P.W. 6 and 8, namely, Lakhanlal Yadav and Tuna Yadav are the seizure list witnesses. They have stated that in their presence, the police had not seized any article. These two witnesses have not been declared hostile by the prosecution. 9. P.W. 10 is Benga Mian. P.W. 6 and 8, namely, Lakhanlal Yadav and Tuna Yadav are the seizure list witnesses. They have stated that in their presence, the police had not seized any article. These two witnesses have not been declared hostile by the prosecution. 9. P.W. 10 is Benga Mian. As per the prosecution case he was the ploughman who had gone with deceased for ploughing the land at the place of occurrence, but this witness has stated in his examination in chief that he did not know anything about the occurrence and he never ploughed the land of Sobrati Mian. The prosecution drew his attention to his previous statement made before the police with a view to impeach his credibility by proving contradiction but surprisingly, the prosecution did not ask any question from the I.O. P.W. 16 with regard to the previous statement of P.W. 10. Thus, I find that the alleged contradiction has not been proved and the statement of P.W. 10 remained intact and unimpeachable. 10. P.W. 9 Manir Ansari is the son of informant who claimed himself to be the eye witness of the occurrence. He stated that on the date of occurrence at about 7 a.m. in the morning, he along with his mother, sister, father and a ploughman Benga Mian went to Hira Bahiar for ploughing land. He further states that when they were ploughing land, accused Azad, Rajjak, Tamizuddin, Jalo, Samsuddin, Indra Prasad Sah, Botha, Musu, wife and mother-in-law of Azad and wife of Jalo came and asked as to why they were ploughing the land. He further deposed that when his father replied that he is owner of land and has been ploughing his own land, the accused persons stopped them from ploughing the land. Thereafter accused Samsuddin exhorted to finish his father so that the dispute regarding the land will come to end. Whereupon his father started fleeing away. However, Azad assaulted Benga with butt of Musket (gun) due to that he sat on the ground. It is further stated that thereafter all the accused persons started chasing his father, he also followed them. He further deposed that the accused persons overtook and surrounded his father at Dumri Tola and assaulted him with butt of musket, sword, lathi, stone and bricks causing injuries to his father who fell on the ground after receiving injury. It is further stated that thereafter all the accused persons started chasing his father, he also followed them. He further deposed that the accused persons overtook and surrounded his father at Dumri Tola and assaulted him with butt of musket, sword, lathi, stone and bricks causing injuries to his father who fell on the ground after receiving injury. It is then stated that thereafter the female accused dragged his father up to Tanr and Azad, Rajjak and Tamizuddin dragged and brought him to Samar Pokhar. There also they assaulted his father. He then deposed that on hulla, villagers arrived and the accused persons fled away. He further deposed that when he went near his father, he found that he was already dead and blood was coming out form his entire body. His uncle Ashif, his aunt and cousin sister had also witnessed the occurrence. He has further stated that thereafter he and his mother went to the police station. The Officer-in-Charge came to Samar Pokhar and recorded statement of his mother on which she put her LTI. He further deposed that the accused persons had forcibly got a deed of lease executed from his mother and on the basis of the same, they were forbiding them from ploughing the land which was the cause of the present occurrence. During cross examination, he deposed at paragraph 11 that no case is going on in between deceased and the appellants. At paragraph no. 19 he states that the police had recorded the statement of his mother with respect to occurrence at the police station. The defence has drawn his attention during the cross examination to his previous statement to which he stated that before the police he had taken the name of all 11 accused persons but the I.O.-P.W. 16 at paragraph no. 4 has stated that before him, P.W. 9 had not taken the name of Botha Mian, Musu Mian, Samsuddin Mian and Indra Prasad Sah. Thus, It appears that P.W. 9 is making different statement at different stages with respect to the name of assailants of his father. 11. 4 has stated that before him, P.W. 9 had not taken the name of Botha Mian, Musu Mian, Samsuddin Mian and Indra Prasad Sah. Thus, It appears that P.W. 9 is making different statement at different stages with respect to the name of assailants of his father. 11. P.W. 11 Asiran Khatoon is the niece of deceased, she stated that on the date of occurrence in the morning her uncle along with his son, wife, daughter and a ploughman had gone to Hira Bahiar and they were ploughing their land, during that period itself, accused persons, namely, Azad, Rajjak, Tamizuddin, Jalo, Botha, Musu, Indra Prasad Sah, wife and mother-in-law of Azad and wife of Jalo came there. She further deposed that appellant Azad had assaulted Benga Mina with butt of his rifle thereafter all the accused persons had chased her uncle Sobrati Mian up to Dumri Tola and at Dumri Tola, appellant Azad Ansari had assaulted Sobrati with butt of his gun, Rajjak had assaulted Sobrati with sword on the back of his neck, Tamizuddin had assaulted Sobrati with butt of his pistol. She then states that thereafter female accused had assaulted Sobrati with lathi and danda. She further deposed that when they forbade them from assaulting, they were threatened. She further deposed that thereafter all the female accused dragged Sobrati towards Dangal. She then states that at the Samar Pokhar, appellant Azad Ansari had thrown a stone on the body of deceased. She further deposed that when, on hulla, villagers arrived at the place of occurrence, accused persons fled away. After the retreat of accused, when they went near Sobrati, they found that he was dead. During cross examination, she states that no case was pending against Sobrati and he never went to jail. At paragraph 6 she states that the accused persons have no enmity with Sobrati. At paragraph no. 10, she states that at Samar Pokhar, the dead body of deceased was lying on the western bank. She has admitted at paragraph no. 10 that Bhota Mian, Musu and Samsuddin were also coming from behind but had not witnessed the occurrence. At paragraph 6 she states that the accused persons have no enmity with Sobrati. At paragraph no. 10, she states that at Samar Pokhar, the dead body of deceased was lying on the western bank. She has admitted at paragraph no. 10 that Bhota Mian, Musu and Samsuddin were also coming from behind but had not witnessed the occurrence. Thus, it appears that this witness has not taken the name of appellants Botha Mian, Musu as the assailant of deceased; therefore, I find that she is making self contradictory statements with regard to the involvement of appellant Botha and Musu in the commission of present crime. 12. P.W. 12 Maihrun Nisha has stated that on the date of occurrence, in the morning, she along with his mother Gol Nisha, brother Manir were present in their field at Hira Bahiar and at that time his father Sobrati Mian was getting the land ploughed through ploughman Benga Mian. At that time itself Azad Ansari, Rajjak Ansari, Tamizuddin, Jalo, Indra Prasad Sah, Samsuddin, Botha, Musu, wife and mother-in-law of Azad and wife of Jalo came and forbid the ploughman from ploughing the land. They assaulted the ploughman with stick, thereafter all the accused persons had tried to surround her father but however, her father fled away. Thereafter all the accused persons chased him up to Dumri Tota and there Azad Ansari had assaulted her father with butt of Musket. Rajjak Ansari assaulted him with sword. Accused Tamizuddin assaulted him with butt of pistol, Jalo and three female accused assaulted him with stick. Thereafter, three female accused dragged her father up to Tanr and from their Azad and Tamizuddin dragged him up to samar Pokhar. At samar Pokhar, her father was again assaulted by the accused persons. When she raised alarm, villagers came running and then the accused persons fled away. When they went near her father they found him already dead. In the cross examination, at paragraph no. 4 she has stated that her father never went to jail. She denied the suggestion of defence that she had stated before the police that sometime before the occurrence her father had returned from jail. At paragraph no. When they went near her father they found him already dead. In the cross examination, at paragraph no. 4 she has stated that her father never went to jail. She denied the suggestion of defence that she had stated before the police that sometime before the occurrence her father had returned from jail. At paragraph no. 5, she has stated that she had not made statement before the police that appellant Azad Ansari after telling lie had get the deed of land executed from her mother but her aforesaid claim was contradicted by the I.O. at paragraph no. 5 of his deposition. Thus, it appears that this witness is making different statement at different stages. At paragraph no. 11 she states that the accused persons had brought her father at the northern bank of Samar Pokhar. 13. P.W. 13 is the informant. She has stated that on the date of occurrence, she along with her husband, son, daughter and ploughman Benga Mian were ploughing their land. During that period itself accused Azad, Rajjak, Tamizuddin, Jalo, Samsuddin, Indra Prasad Sah, Botha, Musu, wife and mother-in-law of Azad and wife of Jalo came. Accused persons forbed the ploughman from ploughing the land and appellant Azad had assaulted him with butt of Musket. Thereafter the accused persons chased her husband. She then deposed that Samsuddin had asked the other accused persons to shot him dead so that the dispute regarding the land will come to an end. She further deposed that thereafter her husband fled away towards Dumri Tola and he had been chased by accused persons and at Dumri Tola they surrounded him. Thereafter appellant Azad assaulted him with butt of Musket, Rajjak with sword, Tamizuddin with butt of pistol, Indra with but of Musket, Jalo with stick, Botha, wife and mother-in-law of Azad and wife of Jalo also assaulted him with sticks. It has been then stated that when her husband fell on the ground, wife and mother-in-law of Azad and wife of Jalo dragged her husband up to Tanr and thereafter Azad, Rajjak, Tamizuddin dragged him to Samar Pokhar and there also her husband was assaulted repeatedly with stone, sticks and butt of musket. When she raised alarm and villagers arrived, the accused persons fled away. When they went near the deceased, they found that he was dead. When she raised alarm and villagers arrived, the accused persons fled away. When they went near the deceased, they found that he was dead. She further stated that thereafter she had gone to police station for giving information regarding the occurrence. The police came at the place of occurrence and recorded her statement and after finding it true, she put her LTI. Thereafter the dead body of her husband was sent to hospital for post mortem examination. During cross examination, she stated that her husband had gone to jail, but she did not know how many cases were pending against him. At paragraph no. 7 she denied that she had executed lease deed in favour of Azad and Rajjak. She further denied that she had made statement before the police that she had executed lease deed of 4 kaths of land in favour of Azad and Rajjak. She further denied that she had made statement before the police that when her husband released from the jail, he refused to accept the lease deed. She further denied that she had taken the name of Tamizuddin among the accused persons who had dragged Sobrati Mian. She also denied that she had made statement before the police that Botha Mian was armed with bhala. She also denied that she had made statement before the police that accused persons had dragged Sobrati Mian towards field. She stated that she had made statement before the police that accused persons took him towards Tanr. From perusal of fardbeyan and the statement of P.W. 16, I find that she has disowned her statements made in the fardbeyan. At paragraph no. 9, P.W. 13 has specifically stated that at the police station she had made statements before the Officer-in-Charge that the accused persons had killed her husband. She then deposed that she had taken the name of all accused persons at the police station. She further deposed that at the police station Officer-in-Charge had instituted a murder case and she had put her LTI on the said case at the police station. She further deposed that later on her subsequent statement was recorded at Samar Pokhar. 14. P.W. 14 is the brother of deceased; he stated that on the date of occurrence he was present at his field. At that time the deceased, his wife, son and daughter were also there in their field. She further deposed that later on her subsequent statement was recorded at Samar Pokhar. 14. P.W. 14 is the brother of deceased; he stated that on the date of occurrence he was present at his field. At that time the deceased, his wife, son and daughter were also there in their field. At that time the accused persons, namely, Azad, wife of Azad, Rajjak, Tamizuddin, Jalo, wife of Jalo, mother-in-law of Azad, Indra Prasad Sahu, Samsuddin, Botha and Musu came and forbade the ploughman from ploughing the land. The accused persons had also assaulted the ploughman. When the accused persons surrounded Sobrati, he fled away towards Dumri Tola. At Dumri Tola all the accused persons surrounded Sobrati Mian and assaulted him. He then deposed that Azad has assaulted him with butt of Musket, Rajjak with sword, Tamizuddin with butt of pistol and female accused with the stone. He further deposed that Botha, Musu had also assaulted him. Thereafter three female accused dragged Sobrati towards Dangal from where the male accused persons dragged him to Samar Pokhar and there also he had been assaulted by the accused persons. He further deposed that he had forbade accused persons from beating Sobrati, but they had not given any heed to his request. It is stated that on hulla, several persons arrived and then the accused persons fled away. At paragraph no. 15 he states that the accused persons had dragged and brought Sobrati on the northern bank of Samar Pokhar. At paragraph no. 16 he states that at the police station the statement of wife of deceased was recorded by the police on which she put her thumb impression. He further states that at the police station they stayed for half hour. He further states that at the police station the wife of deceased had given detailed statement about the occurrence which was recorded by the police. During the cross examination, his attention was drawn to his previous statement, to that he stated that before the police, he had taken the names of Indra Prasad Sah, Samsuddin, Musu and Botha. However, the I.O. P.W. 16 has contradicted his aforesaid statement at paragraph no. 4 of his deposition. 15. Thus, from the careful scrutiny of the evidence of P.Ws. However, the I.O. P.W. 16 has contradicted his aforesaid statement at paragraph no. 4 of his deposition. 15. Thus, from the careful scrutiny of the evidence of P.Ws. 9, 11, 12 and 13, I find that they have given either self contradictory statements or they are contradicting other witnesses with respect to manner of occurrence and place of occurrence. As noticed above, P.W. 9 and 14 have not taken the name of accused Samsuddin, Indra Sah, Botha and Musu before the police but they tried to develop the case of prosecution during their depositions in the court. Likewise P.W. 11 had not taken the name of Samsuddin among the accused persons who arrived at the place of occurrence. At paragraph no. 10 she admits that she had stated before the police that Botha Mian, Musu and Samsuddin were coming from behind and they have not witnessed the occurrence. Thus it appears that previously she had not taken name of Botha, Musu and Samsuddin among the assailant of deceased. P.W. 11 in her examination in chief stated that only Azad Ansari, Rajjak Ansari and Tamizuddin had assaulted the deceased at Dumri Tola. She stated that Rajjak had assaulted the deceased with sword on the back of his neck but the doctor had not found any injury on the back of the neck of deceased. P.W. 11 and informant stated that accused persons had dragged and brought the deceased at the western bank of Samar Pokhar and there they have assaulted him but P.W. 12 at paragraph no. 11 of her deposition and P.W. 14 at paragraph no. 15 of his deposition has stated that the accused persons had brought the deceased at the northern bank of Samar Pokhar. Thus, it is clear that the witnesses on fact have contradicted the statement with regard to the manner of occurrence as well as the place of occurrence. P.W. 13 the informant had disowned her earlier statements made in the fardbeyan regarding the motive of occurrence. P.W. 11&12 have also contradicted themselves and other witnesses by saying that deceased never went to jail It is not out of place to mention that the aforesaid witnesses are closely related to each other and it has been admitted by P.W. 13 (wife of deceased) that they were inimical term with the appellants due to land dispute. P.W. 11&12 have also contradicted themselves and other witnesses by saying that deceased never went to jail It is not out of place to mention that the aforesaid witnesses are closely related to each other and it has been admitted by P.W. 13 (wife of deceased) that they were inimical term with the appellants due to land dispute. In this back ground, the aforesaid contradictions noted hereinabove, assume importance. Their evidence is not free from blemish and suspicion. I am of the view that their evidence not corroborated by independent source, cannot be the basis for convicting the appellants. 16. In the instant case, P.Ws. 9, 13 and 14 have specifically stated that at the police station, the informant (P.W. 13) had given detailed statement regarding the occurrence and the same was recorded by the police. P.W. 13 and 14 specifically stated that in the said statement, she had disclosed the name of all the accused persons and on that basis the case was instituted. P.W. 13 further stated that at Samar Pokhar her second statement was recorded by the I.O. But from perusal of record, I find that the FIR was instituted on the basis of statement of informant recorded at Samar Pokhar, which, in my view, is hit by section 162 of the Cr.P.C., since the first statement of the informant made at the police station was not brought on record and an adverse inference has to be drawn against the prosecution to the extent that prosecution has falsely implicated the accused/appellants due to previous enmity as suggested to prosecution witnesses. 17. In the instant case, the prosecution has not proved the genesis of occurrence. It is alleged in the fardbeyan as well as in the statement of P.Ws. 9,11,12,13 and 14 that while the deceased and his family members were getting their land ploughed by the ploughman (P.W. 10), the accused persons arrived at the first place of occurrence i.e. Hira Bahiar and forbade them from ploughing the land and on their refusal, the present occurrence took place. But the I.O. in his deposition has nowhere stated that he had found the field of informant, ploughed recently. In this respect the statement of P.W. 10 Benga Mian is also important. This witness has specifically stated that he never ploughed the land of Sobrati Mian. But the I.O. in his deposition has nowhere stated that he had found the field of informant, ploughed recently. In this respect the statement of P.W. 10 Benga Mian is also important. This witness has specifically stated that he never ploughed the land of Sobrati Mian. Though this witness was declared hostile and his attention was drawn to his previous statement with a view to impeach his credibility, yet the I.O. (P.W. 16) has not proved the said contradictions. Under the said circumstance, the statement of P.W. 10 remained intact and unimpeachable. His statement that on the date of occurrence he had not ploughed the land of Sobrati Mian gives a fatal blow to the case of prosecution. Under the said circumstance, I am of the view that the prosecution has failed to prove the genesis of occurrence, which cast a serious doubt on its case. 18. In view of the discussions made above, I come to the conclusion that the prosecution has failed to bring home the charges leveled against the accused persons beyond the shadow of all reasonable doubt. The appellants, therefore, are entitled to be acquitted of the charges leveled against them on being given benefit of doubt. 19. In the result, I allow these appeals. Impugned judgment of conviction and order of sentence are set aside. The appellants are acquitted from the charges leveled against them. It appears that appellant no. 1 and 2 of Cr.A.(DB) No. 144 of 2002, namely Azad Ansari and Rajjak Ansari are in custody, they are directed to be released forthwith, if not wanted in any other case. Appellant no. 3 of Cr.A.(DB) No. 144 of 2002, and all the five appellants of Cr.A.(DB) N0. 80 of 2002 are on bail, they are discharged from the liabilities of their bail bonds.