JUDGMENT Hon’ble Vinod Prasad, J.—Challenge in this appeal by quadruple of appellants, including a pair of real sibling brothers, namely Gyan Singh s/o Naubat Ram, Deen Dayal, Ram Babu both Ss/o Ram Sahai and Suresh Chandra are to their convictions Under Sections 148, 395 and 364 I.P.C. recorded by Special Judge, Scheduled Offences, Mainpuri in S.T. No. 455 of 1980, State v. Thakur Das and others, and imposed sentences of two years R.I. on the first count, eight years R.I. on the second count and ten years R.I. on the last count, by it’s impugned judgment and order dated 3.5.1982. 2. Briefly stated, prosecution allegations against the appellants, as are culled out from written F.I.R. Ext. Ka-1, chik F.I.R. Ext. Ka- 9 and depositions of fact witnesses P.W. 1 Chandra Pal and P.W. 2 Ajab Singh were that the informant and accused were collaterals. Their ancestor Kallu resident of village Devri-Faridpur, P.S. Jasrana, District Mainpuri had four sons Tota Ram, Amar Singh, Ganga Deen and Keval. Accused Thakur Das is the son of Tota Ram. Badlu and his sister were issues of Amar Singh, but it seems that Badlu had died very young. Tek Chand and accused Naubat Ram were sons of Ganga Din and informant Chandra Pal (P.W.1), Ajab Singh (P.W.2) and Vijay Pal (deceased) were sons of Keval. Accused Gyan Singh and Suresh were sons of Naubat Ram. Accused Deen Dayal, is the son-in-law of Naubat Ram and appellant Ram Babu is his real brother. 3. In the intervening night between 25/26.3.1980, P.W.1 and deceased were sleeping in their drawing room on the same cot, their father was sleeping on the roof, whereas their mother, informant’s wife, P.W.2 and Kayam Singh were sleeping in the house, when at about 2.30 a.m. six named miscreants/dacoits Naubat, Thakur Das, Suresh, Gyan Singh, Deen Dayal, and Ram Babu entered into their house from a window and pressed informant and his brother Vijay Pal on the cot. Thakur Das and Suresh were armed with country made pistols, Ram Babu, Gyan Singh, Deen Dayal had guns, and Naubat was armed with Lathi. Accused Suresh Chandra picked up the gun and the cartridge lying on the cot. Informant P.W.1 anyhow managed to get freed and with alacrity jumped out of the window and escaped outside. Albeit he was fired upon but providentially did not sustain any gunshot injury. Accused Suresh Chandra picked up the gun and the cartridge lying on the cot. Informant P.W.1 anyhow managed to get freed and with alacrity jumped out of the window and escaped outside. Albeit he was fired upon but providentially did not sustain any gunshot injury. Shrieks of P.W.1 attracted his father Keval and other villagers towards scene of decoity flashing their torches. Decoits, then abducted Vijay Pal alongwith the gun and retreated from informant’s house into darkness. This incident was witnessed by P.W.1, P.W.2 and other eye-witnesses in the flickering of lantern (debari) light and flashes of torches. 4. At the advent of dawn informant P.W.1 scribed F.I.R. Exhibit Ka-1, covered a distance of 8 miles on a cycle and lodged it at P.S. Jasrana, District Mainpuri on 26.3.80 at 4.15 a.m. as Crime No. 92/1980 under Section 395, 397, 364 I.P.C. against the named decoits. 5. H.M. Udai Veer Singh registered the crime, prepared chik F.I.R., exhibit Ka-9, and G.D. Entry, exhibit Ka-10. P.W.5, S.O. Rishi Pal Singh, engineered investigation, recorded 161 Cr.P.C. statements of P.W.1 and 2, conducted spot inspection and drew site plan, Exhibit Ka-11, recovery memo of torch and lantern, Exhibit Ka-12, recovery memo of clotted blood, Exhibit Ka-13. Later on P.W.s 1 and 2 and other searching witnesses Raghubir and Rameshwar discovered Vijay Pal’s corpse in a canal on 20.3.1980, two and half k.m.s away from informant’s house, under periphery of village Ata Nagaria. The cadaver was fished out by them and was carried to a distant of four furlong and was unloaded in a barren land(Usar). Raghubir, another brother of the deceased, was sent to inform the police regarding said recovery, which information was recorded at 6.20 at police station Ocha, by H.M. Pati Ram vide Ext. Ka-2. P.W.3, S.I. Raj Pal Singh accompanied by Const. Bharat Singh and Ram Das proceeded for the spot where cadaver of the deceased was lying and conducted inquest on it and prepared relevant papers vide Ext. Ka- 3 to Ka-8. Subsequently looted gun was also recovered under the police circle Larka from an unknown miscreants, whose identity was withheld from being disclosed by the prosecution. I.O., P.W.-5, after gaining knowledge about recovery of dead body came to the spot and prepared site plan Ext. Ka-14 and recorded statements of Panch witnesses. Subsequent thereto, he apprehended accused Thakur Das, Gyan Singh and Ajab Singh. I.O., P.W.-5, after gaining knowledge about recovery of dead body came to the spot and prepared site plan Ext. Ka-14 and recorded statements of Panch witnesses. Subsequent thereto, he apprehended accused Thakur Das, Gyan Singh and Ajab Singh. Two other culprits surrendered in Court. 82-83 proceedings were initiated against the absconding accused and after concluding investigation I.O. charge-sheeted all but Suresh accused on 14.4.1980 vide Ext. Ka-15. Suresh was later on apprehended in a police encounter on 26.8.1980 in district Etah and against him another I.O. M.M.A. Khan submitted charge-sheet vide Ext. Ka-16. 6. Autopsy on the dead body of Vijay Pal was conducted on 29.3.1980 at about 1.20 p.m and following facts were noted in the post mortem examination report, Ext. Ka 18, by autopsy doctor : “Average built, Rigor mortis passed of, Decomposition started, pealing skin present, post mortem staining present over dependent part of body, Blister present, all over the body maggots present., whole body is stained with mud. All scalp and skull bones were fractured, brain matter was not present, base of skull was fractured in pieces, 8th and 9th ribs on the left side fractured, abdominal cavity contained 4 oz of dark colour blood, teeth not distinguishable, stomach and large intestine empty, small intestine half full, liver and gall bladder lacerated. Following ante mortem injuries were noted by the doctor : ANTE MORTEM INJURIES (1) Crushed injuries all over the face and skull causing multiple fracture of all part of (bone) skull, face. No brain matter is present in skull. Both eyes are absent from the orbit stained with mud. (2) Multiple incised wound three in No. in an area 6 cm x 4 cm, about 1 cm apart over lower part left lateral side of neck varying in size from about 3 cm x 2 cm muscle deep to 4 cm to 2.5 cm, margins are sharp & clean cut. The wound is tappering downwardly & ...... (3) Gun shot would of entries about 4.5 cm x 3.5cm (paper torn) lower part of left side of chest lateral part about 28 cm below the left axilla. The wound is oval in shape, margins are inverted. Blackening present above the injury over abdomen, upper part & chest lower part in an area 12 cm x 10 cm. The wound is (paper torn) from below above. The wound is oval in shape, margins are inverted. Blackening present above the injury over abdomen, upper part & chest lower part in an area 12 cm x 10 cm. The wound is (paper torn) from below above. (3) Abrasion 3 cm x 3 cm upper part of left side of forearm posterior part. (4) I.W. about 1 cm x 1 cm x muscle deep over middle of front of left thumb, margin are sharp & clean cut. The wound is tappering (paper torn) (5) Abrasion 8 cm x 3 cm over upper part of back of Rt. (paper torn). (6) Incised wound 2.5 cm x 1 cm x muscle deep on back of left shoulder. Margin are sharp & clean cut. The wound is tappering downwards & inwards. (7) Two incised wound about 1 cm apart of size of 1.5 cm x 1 cm x 1 cm muscle deep over upper part of left side of back. Margin are sharp & clean cut. The wound is tappering downwards & laterly. 7. Since formal proof of post mortem examination report was dispensed with by the accused, same was exhibited as Ext. Ka-18. Submission of charge-sheets against culprits resulted in their summoning and they were put up for trial. 2nd Additional Sessions Judge, Mainpuri, in the concerned S.T. No. 455 of 1980, State v. Thakur Das and others, charged all the accused under Sections 395, 364, 302/149, 201 I.P.C. on 8.12.1981, which charges were read out and explained to the accused, who denied the same and consequently to establish their guilt, trial procedure commenced. 8. To prove accused guilt, prosecution in all examined five witnesses out whom informant Chandra Pal, P.W.-1, eye-witness Ajab Singh P.W.-2 were fact witnesses. Formal witnesses included S.I. Raj Singh P.W.-3, A.S.I. Pati Ram P.W.-4 and I.O. S.I. Rishi Pal Singh P.W.-5. 9. In their statements under Section 313 Cr.P.C. all the accused denied incriminating circumstances put to them appearing in the prosecution evidences and pleaded false implication because of the enmity. Appellant Ram Babu additionally took the defence of his being brother of Deen Dayal, son-in- law of accused Naubat Ram, and therefore has been falsely implicated because of relationship. 10. Special Judge, Scheduled Offence, Mainpuri after appreciating prosecution and defence evidences found prosecution case unsubstantiated against Thakur Das and Naubat Ram and, therefore, acquitted them of all the charges. Appellant Ram Babu additionally took the defence of his being brother of Deen Dayal, son-in- law of accused Naubat Ram, and therefore has been falsely implicated because of relationship. 10. Special Judge, Scheduled Offence, Mainpuri after appreciating prosecution and defence evidences found prosecution case unsubstantiated against Thakur Das and Naubat Ram and, therefore, acquitted them of all the charges. Trial Court further found charges of forming of unlawful assembly, murder and concealment of evidences disproved against rest of the accused and therefore acquitted them of those charges. However, if found credibility in prosecution story regarding accused appellants for committing decoity and abduction armed with deadly weapons and therefore convicted four appellants for offences Under Sections 148, 395 and 364 IPC and implanted sentences mentioned above and hence this appeal by the convicted accused challenging their convictions and sentences. 11. Pending consideration of their appeals, two of the appellants Deen Dayal and Suresh Chandra expired and therefore, their appeals were abated vide order dated 9.11.2009. This now has left this Court to consider appeals of only two surviving appellants Gyan Singh and Ram Babu. When the appeal was called out for hearing, Sri S.P. Tiwari, learned counsel appeared for appellant No. 3 Ram Babu. Nobody responded on behalf of appellant No. 1 Gyan Singh who remained unrepresented and in such a view, not to further delay disposal of appeal, Sri Ashish Kumar Sinha, Advocate was appointed as Amicus Curiae, on his behalf to argue the appeal and consequently I have heard Sri S.P. Tiwari, and learned Amicus Curiae for the appellants Ram Babu and Gyan Singh and Sri Sangam Lal Kesharwani, learned A.G.A. for respondent State. 12. Castigating and criticising impugned judgment of conviction, it was submitted by appellant’s counsel that the entire prosecution story is concocted and manufactured only to nail in the accused persons, with whom, prosecution side was litigating both in criminal and civil Courts to grab immovable and movable properties of Amar Singh. From the perusal of site plan, Ext. Ka-11 it is evident that house of acquitted accused Thakur Das, Naubat Ram were adjacent to the house of the informant, who were collaterals, as is clear from the pedigree sketched above. Amar Singh had 36 bighas of land and his only son Badlu had expired earlier and therefore his nephews P.Ws. 1 and 2 and the deceased had an evil eye on his properties. Amar Singh had 36 bighas of land and his only son Badlu had expired earlier and therefore his nephews P.Ws. 1 and 2 and the deceased had an evil eye on his properties. Similarly other nephews Naubat Ram, Thakur Das, Ganga Deen and Tota Ram had the same design and therefore, in two groups they were litigating both in civil and criminal Courts and because of aforesaid reasons appellants have been roped in falsely. Entire family of Naubat Ram has been implicated because they seems to have been in front of litigation. It was next submitted that appellants were charged under Sections 149/302/201 I.P.C. also but prosecution failed to substantiate those charges and consequently trial Judge has acquitted the appellants of those charges and thus trial judge himself disbelieved major part of prosecution allegations. No independent witness or any neighbour came forward to lend credence to the prosecution allegations and consequently prosecution based it’s entire story on testimonies of interested, inimical, partisan, related and interested witnesses, and their depositions are unworthy of credence and therefore convictions of the appellants is assailable. It is further submitted that charge of decoity is false and manufactured and incident certainly did not occur in the manner and as alleged by the prosecution. Acquittal of the accused for the charge of murder and forming of unlawful assembly has attained finality and therefore now that chapter cannot be reopened. Further submission is that although prosecution allege it to be an incident of decoity and abduction but none of the accused persons had concealed their identities or veiled their faces, which is most un-natural and absurd conduct. Nobody joins decoity without taking precaution of concealing identity in the next door neighbour’s house to be identified and booked in the crime submitted learned counsel. It was further contended that facts also do not indicate that it was a case of decoity as but for a gun and cartridge no other property or valuables were looted in the entire episode. For the charge of abduction prosecution evidences lacks material to uphold conviction. Nobody else was assaulted or injured in the incident, which fact also belies prosecution version. For the charge of abduction prosecution evidences lacks material to uphold conviction. Nobody else was assaulted or injured in the incident, which fact also belies prosecution version. It was argued that theory of it being a decoity case is baseless, false and concocted and, in fact, associates of deceased, in an attempt to take revenge from him, committed this incident, took away deceased with them and murdered him in a most brutal manner at a lonely place, where the cadaver of the deceased was discovered, and, later on, because of enmity false case was cook up by the informant in connivance with the police and nobody had seen the incident. No trail of blood was found at the spot nor the same was recovered, which falsifies shooting done inside the house. Conduct of P.Ws. 1 and 2 are un-natural and incomprehensible and therefore it does not inspire any confidence at all. Both the brothers did not made any attempt to chase the miscreants with a safe distance when they were fleeing with the deceased nor they attempted to collect co-villagers and went in search of their own sibling brother. House inmates also raised no alarm to attract villagers. It is next submitted that there was no fear in the mind of P.W.1 as all alone he had gone to the police station to register his F.I.R. Next argument is that deeper analysis will reveal that genesis of the incident is shrouded in mystery and, as put forth by prosecution, it does not appeal to common sense. No blood was recovered from the floor of the house where the deceased was alleged to have been shot at by the culprit and if the accused harbingered intention to commit deceased murder there was no reason for them to abduct him as they would have shot him dead then and there. On the above basis it was submitted with vehemence that incident was committed not by the appellants but by some unknown persons in some unknown manner and entire prosecution edifice is after thought and outcome of deliberations and concoction and because of this reason incised wounds found on the body of the deceased remain unexplained. It was consequently suggested that autopsy report does not support eye-witness account and contradicts it directly and substantially. It was consequently suggested that autopsy report does not support eye-witness account and contradicts it directly and substantially. Most of the injuries on the body of the deceased were caused by sharp edged weapons and none of the accused were alleged to have carried with them any such weapon submitted learned counsel. Three of the culprits were armed with guns whereas two others were armed with country made pistols and one was armed with lathi pointed out learned counsel. In such a view, detection of numerous incised wounds on the body of the deceased remain unexplained, which makes prosecution version suspect. Blood collected from the wall of the room did not tallied with that of the deceased and hence was not got examined by serologist to give authenticity to the prosecution case. On the same evidences two other accused Thakur Das and Naubat Ram were acquitted by the trial Judge, which acquittal attained finality and consequently appellant could not have been convicted on the same evidence without any distinguishable features submitted learned counsel. Same treatment should be given to the appellants as prosecution evidences stands at par without any distinctive feature. Further, it was argued that it is difficult to cogitate that collaterals will commit murder in such ghastly and brutal manner as to revolt the conscious. No sign of any firing was found inside the drawing room by the I.O. when he reached the spot and this fact makes the place of the incident doubtful. It was next submitted that since the appellants were known to the informant and P.W.-2 they could not have taken chance to be identified during the course of the incident and prosecution story is a bundle of lies. There was no special reason or immediate motive for the accused to commit decoity in the house of their next door neighbour. It was lastly submitted that the appellants be acquitted of all the charges and their appeals be allowed and they be set at liberty. 13. Learned A.G.A., per contra, submitted that in the present case F.I.R. was registered much prior to the discovery of the dead body by the informant and other searching members and after discovery of dead body injury on the chest was found to be consistent with that of prosecution version and this establishes eye-witness account of shooting of deceased inside house. Learned A.G.A., per contra, submitted that in the present case F.I.R. was registered much prior to the discovery of the dead body by the informant and other searching members and after discovery of dead body injury on the chest was found to be consistent with that of prosecution version and this establishes eye-witness account of shooting of deceased inside house. It is further submitted that if the appellants were not involved in the crime, prosecution witnesses would not have roped them in a case of decoity. It is further submitted that because of enmity, appellants, who were dare devils, could muster courage to raid the house of the neighbour without concealing their identities and, therefore, prosecution has successfully anointed appellant’s guilt and they deserves to be convicted. Learned A.G.A, therefore contended that appeals of two appellants be dismissed. 14. I have considered the arguments raised by both the sides and have perused the evidences on record. First of all, what is perceptibly clear from the prosecution evidence is that both the sides knew each other very well being collateral. For the property of Amar Singh, informant and the deceased were litigating with the appellants. However, this fact is not mentioned in the FIR and therefore it seems that there was an attempt by the prosecution to conceal real incident. Absence of motive in the earliest prosecution version attaches an air of unreality to it especially when accused were alleged to be cousins and uncles, and were next door neighbours. Further, F.I.R. itself records that two appellants Deen Dayal and Ram Babu were resident of Sarai Jawaharpur, P.S. Kotwali, District Etah. For them to participate in the crime on the fateful day, without any immediate motive or cause or interest is difficult to perceive and accept. There was no special reason for them to join hands with other culprits to commit decoity without concealing their identities as their presence at the scene was not natural and expected. No specific role has been assigned to them. It seems that because they were relatives of accused Gyan Singh and Suresh, that is why they were made members of unlawful assembly. No overt act has been assigned to them nor any property was recovered from their possession. No specific role has been assigned to them. It seems that because they were relatives of accused Gyan Singh and Suresh, that is why they were made members of unlawful assembly. No overt act has been assigned to them nor any property was recovered from their possession. More over by acquittal of two of the accused by the trial judge, number of culprits dwindled down to four and hence charge of unlawful assembly fails, for which five or more persons are sine qua non as has been provided under Section 141 I.P.C. But for named six accused no other person is mentioned in the FIR and once prosecution could prove participation of only four accused in the crime and rest two were acquitted, conviction of appellants Under Section 148 is wholly illegal. On the facts only Section 34 I.P.C. could be attracted and each of the accused would have been liable for their individual act. Since trial Court committed this unpardonable legal error it’s judgment suffers from patent illegality ex facie. For offence of rioting formation of an unlawful assembly is a must as Section 146 I.P.C., which mentions definition of “Rioting”, provides that “whenever force or violence is used by any unlawful assembly, or any member thereof, ....”. Word “Unlawful assembly” is described under Section 141 I.P.C. which lays down “An assembly of five or more persons...”. Section 148 ordains “Whoever is guilty of rioting...”. Thus for convicting any person under Section 148 I.P.C. guilt or proved involvement of five persons or more is a legal requirement. If participation of less than five persons could be proved, Section 148 I.P.C. will have no applicability. On this aspect, in my opinion, further deliberation is not required and hence conviction of appellants Under Section 148 is unsustainable. 15. Similarly appellant’s conviction/s under Section 395 (decoity) is also unsustainable, firstly, because number of accused receded below five and secondly, because assailants had no motive to commit theft or extortion. They harbingered intention to kidnap the deceased and do away with him. For making out an offence of decoity, theft or extortion are sine qua non ingredients. “decoity” is robbery if the same is committed or attempted to be committed by five or more persons. They harbingered intention to kidnap the deceased and do away with him. For making out an offence of decoity, theft or extortion are sine qua non ingredients. “decoity” is robbery if the same is committed or attempted to be committed by five or more persons. Definition of “decoity” is contained in Section 391 I.P.C. which lays down “when five or more persons conjointly commit or attempt to commit a robbery or where the whole number of persons cojointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit decoity”. Thus there cannot be any decoity by less than five persons. Further “Robbery” is defined under Section 390 I.P.C, which provides “In all robbery there is either theft or extortion.” Resultantly for robbery it has to be established that miscreants desired theft or extortion. If robbery is committed by five or more persons by causing death or hurt or wrongful restraint or fear of all or any of the same, then it is decoity. In the present appeal none of these ingredients were satisfied. It is categorical deposition of P.W.1 that “Miscreants had not tied veil on their faces which were bare. They wanted to murder us. I had scuffle with them. Blood did not oozed out nor my clothes were tattered. No sooner they pounced on me I escaped. Scuffle occurred on the ground besides cot. After removing the latch I came out of drawing room door. Assailants could not get opportunity to shoot me. Gyan Singh had said real target ran away. Gyan Singh did not fire at me. My brother was fired upon.” Aforesaid testimony by P.W.1 leaves no room for doubt that there was no intention to commit theft or extortion by the tress-passers and consequently there was no decoity. For the two reasons mentioned above, besides others, impugned judgment for conviction under Section 395 I.P.C. is also assailable and cannot be upheld. Picking up of the gun and cartridge by accused Suresh was his individual act, for which only he could have been convicted under Section 379 I.P.C. 16. For the two reasons mentioned above, besides others, impugned judgment for conviction under Section 395 I.P.C. is also assailable and cannot be upheld. Picking up of the gun and cartridge by accused Suresh was his individual act, for which only he could have been convicted under Section 379 I.P.C. 16. Reverting back to factual aspect, it has already been observed that appellants and prosecution sides were litigating with each other hankered and motivated with evil eyes on immovable property belonging to their uncle, with Keval, father of informant on the one side and Thakur Das, Amar Singh, Naubat, Deen Dayal on the other. There had been criminal cases also in between them under Sections 324 and 452 I.P.C. In case under Section 452 informant has lost the trial. Thus enmity between both the sides existed which could have provided motive to either of them to act against the other, to commit the crime or to rope rival side in a false case to wreck vengeance. Since enmity is a double edged weapon hence drawing conclusion on it’s basis will not be very safe. Other wise also it is trite law that in case of eye-witness account motive relegates into the background and hence appreciation of evidences of P.Ws. 1 and 2 is being under taken. 17. Further analysis of entire prosecution evidences led during trial reveal that during entire episode only a gun and cartridge belonging to P.W.1 was looted. This is very surreal. No other property, whether cash or valuable security, was looted nor any attempt was made by the miscreants to search for it. There is no evidence to that effect. No other person but for the deceased was hurt during incident. Nobody was assaulted and asked regarding money or valuable assets. Absence of these factors does not convince satisfactorily that it was an incident of decoity. Prosecution allegations in that respect seems to be waivered and unconvincing. It is because of this reason that no weapon or specific role was assigned to any of the known persons in the F.I.R. Evidence of P.W.1 reproduced herein above authenticate this opinion. 18. Now a very big question arises that if it was not a case of decoity, why prosecution tried to give such a shape to the incident. The answer is not difficult to perceive. 18. Now a very big question arises that if it was not a case of decoity, why prosecution tried to give such a shape to the incident. The answer is not difficult to perceive. In fact, it seems, that associates of deceased committed this crime and took away deceased with them, without shooting him inside the house alongwith gun and cartridges of informant and after carrying him to a barren land butchered him to death. To settle the scores and aggravate the crime that P.W.1 gave it a shape of decoity to nail maximum number of persons including two real uterine brothers who were residents of different districts Etah. 19. Another unconvincing and doubtful feature of prosecution allegation is non-sustaining of any injury by informant P.W.1. Above reproduced testimonies of informant compels me to think that either P.W.1 was not present at the spot or whatever he narrated before the Court is incredible and untrue. His escape is not providential. Incident occurred inside closed doors with latch fixed in the out let door, which could not have been unbolted from outside. There was grappling between accused and informant. They both were flexing muscles with each other. Why the accused will allow all this happen, when they intended to murder the informant? Why they will allow him to escape when five of the accused were possessing loaded guns and country made pistols? Why accused will permit informant to remove the latch of outlet door and not to shoot him instantaneously? To shoot P.W. 1 from point blank range was very easy for them to act. All these un-naturalities and improbabilities compels me to opine that P.W. 1 is not a truthful witness and either he was not present at the spot or his description of the incident is false and he has not evidenced the truth. In either case no implicit reliance can be placed in his testimonies. It will be a very unrealistic approach to form an opinion contrary to most natural sequence of conduct relying upon weird depositions, howsoever unconvincing it may be. 20. Another circumstance, which prosecution failed to explain satisfactorily is that why cadaver of the deceased, once fetched out of canal, was kept in barren land, four furlong away from the canal and why it was not brought to the house or in the village? There is no explanation coming forth for this bizarre conduct. 20. Another circumstance, which prosecution failed to explain satisfactorily is that why cadaver of the deceased, once fetched out of canal, was kept in barren land, four furlong away from the canal and why it was not brought to the house or in the village? There is no explanation coming forth for this bizarre conduct. Another discrepancy occurring in prosecution story is regarding non-explanation of multiple incised wounds detected on the corpse of the deceased. None of the accused had any sharp edged weapon with them. How then they caused incised wounds remains a mystery. No water or any fluid content was found inside the body. Why it was taken out of canal by the informant without informing police also remains unexplained. There seems to an attempt to obliterate the evidences in that respect. This conduct by P.W. 1 indicates his intention to conceal the real place from where the body was detected and to create a false story. 21. P.W.2, brother of informant besides being un-natural, related, interested, inimical and partisan witness is also not reliable. He contradicted informant by stating that gun and cartridge were snatched away from the informant, Deen Dayal and Gyan Singh had chased informant, and Gyan Singh had shot dead the deceased. Trial Court also disbelieved him for the charge of murder and acquitted Gyan Singh, which acquittal has attained finality. It is also un-understandable as to why culprits will abduct deceased once he was shot inside drawing room itself as was evidenced by P.W.2. According to his deposition Suresh said that agriculture field shall be harvested by them and entire family be annihilated. When P.W.2 and his mother tried to enter drawing room, they were pushed and abused. P.W.2 embellished prosecution version by stating that accused had fired from varandah as well as inside room. P.W.1 was contradicted by him when he deposed that outlet door had no latch fixed. He further developed another story by testifying that both the fires were made by Gyan Singh. Sustaining injuries his brother had not fell down on the ground. He was caught hold of and was brought on outside platform by P.W.2 and others. Blood had tickled down on the platform as well. He further developed another story by testifying that both the fires were made by Gyan Singh. Sustaining injuries his brother had not fell down on the ground. He was caught hold of and was brought on outside platform by P.W.2 and others. Blood had tickled down on the platform as well. He further diminished prosecution version by deposing that P.W.1 had not scribed any paper in his presence and he had proceeded for the police station at 7 a.m. and returned to the spot after 1 ½ hours alongwith the I.O. and after his coming back that P.W.1, Chandra Pal has scribed a paper and had handed it over to the I.O. He contradicted facts mentioned in inquest report and post mortem reports that corpse was not soiled with mud or it had not putrescenced. 22. Moreover no blood or trail of blood was found on the floor or outside the house nor the same has been depicted by the I.O. in the site plan. Although I.O. stated that he had collected blood from wall from a height of four feet but he did not send it for serologist examination. Mere ipse dixit about recovery of blood and it’s trail being seen, without mentioning the same in the site plan is not convincing and such a claim by the I.O. is hereby discarded. 23. Another important factor is that trial judge disbelieved prosecution case for the charge of murder and participation of two accused. 24. Since both the fact witnesses are found to be unreliable and untruthful, they cannot be believed for the charge of abduction as well. Prosecution has been unsuccessful to establish that the incident occurred in the manner alleged by it. Both of it’s witnesses do not inspire any confidence nor can be relied upon. Genesis and manner of the incident seems to have occurred for different motives and in a different manner as alleged and all these facts create doubt in the mind of the Court regarding prosecution version and hence no credence can be attached to it. 25. In the end, I am of the view that prosecution has failed to bring home appellants guilt for all the charges and therefore their convictions and sentences under Sections 148, 395, 364 I.P.C. through the impugned judgment cannot be sustained. 25. In the end, I am of the view that prosecution has failed to bring home appellants guilt for all the charges and therefore their convictions and sentences under Sections 148, 395, 364 I.P.C. through the impugned judgment cannot be sustained. Wrapping up the discussion, appeals by appellants Gyan Singh and Deen Dayal are allowed, their convictions and sentences through the impugned judgment and order are hereby set aside and they are acquitted of all the charges. Both the appellants are on bail, they need not surrender, their personal and security bonds are discharged. Let a copy of this order be certified to the trial Court for it’s intimation. —————