JUDGEMENT Shyam Kishore Sharma and Rajendra Kumar Mishra JJ. 1. Initially this Cr. Appeal was filed on behalf of four persons. One Ram Ekbal Yadav @ Balal Yadav had died during pendency of the appeal. Now, the appeal remains on behalf of Harbansh Yadav and Shree Baran Yadav - both son of Narain Singh @ Rup Narain Singh and Laljit Yadav. Hence, the appeal stands abated against Appellant No. 4 namely, Ram Ekbal Yadav @ Bala Yadav. 2. The judgment of conviction and order of sentence has been passed by the 7th Additional Sessions Judge, Rohtas at Sasaram on 6th of May, 1988 in Sessions Trial No. 312/30 of 1984/84. These Appellants were convicted under Section 302 of the Indian Penal Code and sentenced to go rigorous imprisonment for life. The occurrence is of about 8 A.M. on 11.07.1984, led to registration of Sasaram (Mufassil) P.S. Case No. 335 of 1984 under Sections 147, 148, 149 and 302 of the Indian Penal Code on the fardbeyan of P.W.5 Bajrangi Yadav (Ext.2). The formal First Information Report (Ext.1) resulted into registration of the regular case. 3. Fardbeyan of Bajrangi Yadav was recorded by S.I. Jamindar Singh P.W.8 at Muri Sarai More at 12.30 hours on 11.07.1984, wherein P.W.5 stated that he was going along with Satyanarain Yadav P.W.4, Bharat Yadav (the deceased) and Kishori Yadav P.W.3 by cycles for selling milk at Sasaram. Bharat Yadav (the deceased) proceeded ahead, near Songawan Mandir. As soon as the informant reached near the orchard of Muri Sarai More at Darigaon Sasaram Road then at about 8 A.M. six persons having Garasa (Balua), Tangi and Barcha came up on the road from a dilapidated house situated near the road. Bharat Yadav (the deceased) was encircled, at the behest of Laljit Yadav who was armed with Garasa, Shree Baran Yadav armed with Garasa, gave a Garasa blow which caused injury upon the back portion of the neck of Bharat Yadav (the deceased), he fell down towards the eastern side of the road. Laljit Yadav, thereafter, assaulted by means of Garasa upon the front portion of the neck. Harbansh Yadav assaulted by Tangi Meghbaran Yadav by Barcha, Jagdish Yadav by Barcha and Ram Ekbal @ Bala Yadav by Tangi. The accused persons chased the informant and Ors. for assaulting them but they escaped. Laljit Yadav, thereafter, assaulted by means of Garasa upon the front portion of the neck. Harbansh Yadav assaulted by Tangi Meghbaran Yadav by Barcha, Jagdish Yadav by Barcha and Ram Ekbal @ Bala Yadav by Tangi. The accused persons chased the informant and Ors. for assaulting them but they escaped. After committing the offence, the accused persons reiterated towards the hills in the eastern side. The informant found Bharat Yadav died and at that time blood was coming from his neck. The motive behind the occurrence was land dispute with Shree Baran Yadav. After recording the fardbeyan (Ext.2) the inquest report (Ext.4) was prepared. The dead body was sent for post-mortem examination and after receipt of the post-mortem examination report (Ext.3) and after taking statements of the witnesses, inspection of the place of occurrence and after making other paraphernalia, the charge sheet was submitted. The case was committed to the court of Sessions where charges were framed and explained to the accused persons, they pleaded innocence and the trial proceeded. 4. The defence of the accused persons was of false implication on account of enmity which has been mentioned in the fardbeyan itself. 5. In course of trial, the prosecution examined eight witnesses, they were Prasidh Narain Shukla P.W.1, Jagmohan Singh P.W.2, Kishori Yadav P.W.3, Satya Narain Singh P.W.4, Bajrangi Yadav P.W.5, Sheo Balak Lal P.W.6, Dr. Jagmohan Swaroop P.W.7 who has conducted the post-mortem examination and Jamindar Singh P.W.8 the investigating officer of the case who has initially investigated the case. P.Ws. 3, 4 and 5 are the witnesses who have been examined as eye witnesses on behalf of the prosecution. P.Ws. 1, 2 and 6 are formal witnesses. 6. The defence has examined Dhanukdhari Bind as D.W.1, Hari Narain Singh as D.W.2, Hardayal Singh as D.W.3, Sheo Prasad Yadav as D.W.4 and Sukhnandan Yadav as D.W.5. 7. The trial court after considering the evidence and after hearing learned Counsel for the parties came to the opinion that the prosecution has been able to prove the charge against four accused persons who preferred appeal here. Two of the accused persons were not found guilty and they were acquitted. 8. This Court is required to give its finding as to whether the prosecution has been able to prove the charges against the accused/Appellants beyond shadow of all reasonable doubts. 9. Two of the accused persons were not found guilty and they were acquitted. 8. This Court is required to give its finding as to whether the prosecution has been able to prove the charges against the accused/Appellants beyond shadow of all reasonable doubts. 9. It has been argued by learned Counsel for the Appellants that manner of occurrence and time of occurrence has not been proved. The deceased, himself, was a notorious criminal of the locality and he has visited jail earlier. He was accused in so many cases and had enmity so there was possibility that he might have been killed elsewhere. It has also been submitted that the eye witnesses examined on behalf of the prosecution are relations of the deceased and highly interested persons and the independent witnesses have not been examined. The independent witnesses have been deliberately left by the prosecution so, the defence had examine them, so that the correct version may come on the record. 10. The doctor P.W.7 has conducted the post-mortem examination of the deceased on 11.07.1984 at 5.15 P.M. and has found rigor mortis in the lower limbs. The following ante mortem injuries were found on the person of the deceased Bharat Yadav: (i) Sharp cut wound 6"x2"x2" deep at the level of 3rd cervical vertebra from mid neck line going upward and forward to right ear lebula on the right side of neck and scalp. The lower half of right ear cut and was absent. A part of the 3rd cervical vertebra was also cut. All the big arteries and vains were severed at the right side. (ii) Sharp cut 5"x2"x1" deep from 1" to the right of chin going on the other side, parallel to the lower border of mandibla up to left mandibular angle. The trachea was severed into two pieces. (iii) Sharp cut wound 4"x1 1/2x1/2 deep on the front of neck cutting the cricoid cartiladge and the blood vessels on both sides neck. (iv) Sharp cut wound 4"x2 1/2 deep x 1" width in front of neck at 1" below injury No. (iii). The trachea and gullet were cut and divided, a part of vertebra was also cut. (v) Sharp cut wound 5"x1 1/2x1" deep parallel to injury No. (iv) just above manubrium, cutting the gullet and trachea. (iv) Sharp cut wound 4"x2 1/2 deep x 1" width in front of neck at 1" below injury No. (iii). The trachea and gullet were cut and divided, a part of vertebra was also cut. (v) Sharp cut wound 5"x1 1/2x1" deep parallel to injury No. (iv) just above manubrium, cutting the gullet and trachea. (vi) Sharp cut wound 2"x 1 1/2 x bone deep on the front of right forearm just on the wrist, all the tendous of the muscles were severed. (vii) Sharp cut wound 3"x2"x2" deep on the front and middle of right forearm. The ulnar bone was divided into two pieces. (viii) Sharp cut wound 2 1/2x1"x1/2 deep on the front of the right forearm about 1 1/2 below elbow creese. According to the opinion of the doctor all the injuries were caused by sharp cutting weapons. The time of death was within 24 hours and there was No. mention of any puncture in the post-mortem examination report. Therefore, the prosecution has been able to prove that death of Bharat Yadav was caused within 24 hours and the death was only by the injuries which were caused by sharp cutting instruments. 11. Firstly, oral evidence is being discussed. P.W.5 is the informant he is maternal uncle of deceased Bharat Yadav he has deposed that he was going to Sasaram along with Satya Narain Singh P.W.4, Kishori Yadav P.W.3 and Bharat Yadav (the deceased) they were going on three cycles. This witness and Kishori Yadav P.W.3 were occupants of one cycle. When the informant and Ors. reached near Muri Sarai turning then six persons came out from a dilapidated construction and all were having weapons in their hands. Laljit and Shree Baran were having Garasa (Balua), Harbansh and Ram Ekbal @ Bala Yadav having Tangi whereas Meghbaran and Jagdish Yadav having Barcha. At that time Bharat Yadav was 30 yards ahead of the informant. Laljit Yadav incited for killing and, thereafter, initial blow by Garasa (Balua) was given by Shree Baran Yadav which caused injury upon back of the neck of Bharat Yadav who fell down due to impact of the injury. Others have assaulted thereafter. Meghbaran Yadav and Jagdish Yadav threatened the informant with their spears then informant and Ors. rushed towards the hills. When the accused persons escaped, the informant and Ors. went there where Bharat Yadav was lying. Others have assaulted thereafter. Meghbaran Yadav and Jagdish Yadav threatened the informant with their spears then informant and Ors. rushed towards the hills. When the accused persons escaped, the informant and Ors. went there where Bharat Yadav was lying. At that time Bharat Yadav was died. The informant, thereafter, went to the police station and the officer-in-charge came at the place of occurrence and his fardbeyan was recorded. While the deposition of this informant was being placed, attention of the court was drawn towards the statement of the informant that he went to the police station and informed about the occurrence. The investigating officer P.W.8 in first paragraph of his evidence has stated that he heard rumour that somebody had been killed and thereafter he went along with the dead body challan. It is relevant to place the deposition of P.W.3 who has stated in para-5 that after the occurrence the matter was reported to police by Hardayal Singh D.W.3 who was his co-villager. Hardayal Singh was not examined by the prosecution and he was examined by the defence and he has stated that he informed about the occurrence to the informant P.W.5, P.W.4 and Ors. and then he went to the police station and give information about the occurrence. The fact which has to be decided here as to who is the person who gave information to the police of the occurrence. If the informant is relied upon then he becomes first informant of the case. If P.W.3 is relied upon then Hardayal Singh D.W.3 is the first informant of the case. If the investigating officer P.W.8 is relied upon that he came to the place of occurrence only on the basis of rumour. Who informed the police about the occurrence has remained covered under mystery and could not be explained by the prosecution as to who is the person who gave first information to the police and how the officer-in-charge came at the place of occurrence. All the concerned persons have given different version and so this fact could not be clarified. 12. P.W.5 has stated in para-9 of his evidence that all the accused persons were keeping their faces covered and there is No. explanation as to how the accused persons were identified. There is No. evidence that their masks were unmasked or their masks fell down or it was removed. 12. P.W.5 has stated in para-9 of his evidence that all the accused persons were keeping their faces covered and there is No. explanation as to how the accused persons were identified. There is No. evidence that their masks were unmasked or their masks fell down or it was removed. The evidence of P.W.5 in para-9 is consistent that all the accused persons had masks on their faces so identification in such circumstances gets clouded. 13. Regarding criminal antecedent of the deceased P.W.5 the informant has stated that Bharat Yadav (the deceased) had gone jail at least once in his knowledge. The investigating officer P.W.8 has stated that the deceased Bharat Yadav was an accused in Sasaram P.S. Case No. 234 of 1982 and in that case he was chargesheeted. He has also stated that Bharat Yadav was suspected in many cases of dacoity and he was apprehended on different occasions. When the investigating officer went to the place of occurrence soon after the occurrence then he has investigated it. The prosecution case and the fardbeyan as well as from the evidence it appears that Bharat Yadav was carrying milk and when he was crossed upon then milk has sprinkled upon the road. The inspection of place of occurrence was done by the investigating officer and he has not found any milk there. 14. Learned Counsel for the Appellant has drawn attention towards the fact that the prosecution has developed its case and tried to fill up the lacuna in view to see that the accused persons are punished in what manner that is possible. 15. There is evidence that P.Ws. 3, 4 and 5 were going simultaneously together and while they were proceeding then the occurrence as alleged has occurred and all of them witnessed it. The statements of P.W.3 at one side and the statements of P.Ws. 4 and 5 at another side are at variance and both the statements reconciled on behalf of the prosecution. It would be said that when Bharat Yadav reached at the place of occurrence then Laljit Yadav alone came and started rebuking him, thereafter, Ram Ekbal @ Bala Yadav reached and gave a Tangi blow upon the neck of Bharat Yadav (the deceased). P.Ws. It would be said that when Bharat Yadav reached at the place of occurrence then Laljit Yadav alone came and started rebuking him, thereafter, Ram Ekbal @ Bala Yadav reached and gave a Tangi blow upon the neck of Bharat Yadav (the deceased). P.Ws. 4 and 5 on the other hand, have stated that all the six accused persons appeared from the dilapidated house and surrounded Bharat Yadav and initial blow was given by Shree Baran Yadav as a result of which he fell down and thereafter Laljit Yadav gave second Garasa blow. No. doubt, there are some inconsistencies with regard to the fact. But this fact has come in evidence that P.W.4 has stated in para-6 of his cross-examination that while he was at a distance of 25-30 yards from the alleged place of occurrence then the occurrence had taken place. P.W.5 has stated that the deceased at that time was at a distance of about 30 yards. The evidence goes to show that P.Ws. 4 and 5 were quite nearer to the place of occurrence when the occurrence has taken place. But it has come in evidence that when two witnesses were going on one cycle then why one was nearer to the place of occurrence and one was far, this is another inconsistency in the prosecution case. The evidence has come that Jagdish Yadav and Meghbaran Yadav had spears with them and they have also pierced the spears upon the chest of Bharat Yadav (the deceased). The doctors evidence is clear that he has not found any spearss injury upon Bharat Yadav. Spear can cause punctured injury but not even one punctured injury was found on the dead body. Such specific evidence of the witnesses who have been relied upon by the prosecution as eye witnesses create some doubt and it is difficult to believe them beyond shadow of all reasonable doubts as to whether they were witnessed the occurrence. If the witnesses are specific that assault was by spears and when No. spear injury was found then it can be said that they were not witnessed the occurrence and they have tried to give a colour of the offence and in such manner they have become the eye witness. If the witnesses are specific that assault was by spears and when No. spear injury was found then it can be said that they were not witnessed the occurrence and they have tried to give a colour of the offence and in such manner they have become the eye witness. Their version attacked the case further during the contradictory evidence with regard to manner of reporting of the case which led to registration of the First Information Report. The charge sheet witnesses in the case have become defence witnesses because they were not examined by the prosecution and they differ with the version of the occurrence, differ witnesses are not such witness who have examined during trial rather they were the witnesses whose statements were taken under Section 161 of the Code of Criminal Procedure. According to them, the matter was informed by Hardayal Singh and Hardayal Singh has given the information of the occurrence then P.Ws. 3, 4, 5 and Ors. have come there. If evidence of Hardayal Singh is considered then it gives information that two more witnesses were relied upon by the prosecution and they have come to see that after the occurrence was committed the accused persons have reiterated. Even if the prosecution comes with a case, as alleged has occurred in the manner then the onus is upon it to prove that it has occurred in that manner alone. The prosecution has to prove its case beyond shadow of all reasonable doubts and if some consistencies between the eye witnesses who have been relied upon by the prosecution are made and both inconsistencies are not clarified then a genuine doubt is created and it becomes difficult to believe that the prosecution has come with the actual facts which it was bound to keep. No. doubt, death of Bharat Yadav has occurred but it is difficult to believe the version of the prosecution that it was caused in the manner as alleged by it, not only the manner of assault rather participation of the accused persons have also not been established beyond shadow of all reasonable doubts. 16. In the facts and circumstances of the case, we are of the view that the prosecution has not proved the charges beyond \shadow of all reasonable doubts. 17. In the result, the appeal is allowed. 16. In the facts and circumstances of the case, we are of the view that the prosecution has not proved the charges beyond \shadow of all reasonable doubts. 17. In the result, the appeal is allowed. The conviction and sentence awarded to three Appellants namely, Harbansh Yadav, Shree Baran Yadav and Laljit Yadav are set aside, they are acquitted of the charges and they are discharged from the liability of the their respective bail bonds.