ORAL JUDGMENT Shyam Kishore Sharma, J.-The appellants have assailed the judgment of conviction and order of sentence dated 16th June, 1988 passed by 5th Additional Sessions Judge, Rohtas in Sessions Trial No. 507 of 1985 by which appellant Nos. 1 to 7 (Sita Ram Singh, Ramesh Singh, Bharat Singh, Kameshwar Singh, Satendra Singh, Arbind Singh and Anil Singh respectively) have been convicted under Section 302 read with Section 149 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for life, appellant Nos. 6 and 7 (Arbind Singh and Anil Singh) have further been convicted under Section 27 of the Arms Act and have been sentenced to undergo rigorous imprisonment for three years each and appellant Nos. 8 and 9 (Rajendra Singh and Nagendra Singh) have been convicted under Section 302 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for life. The sentences of appellant Nos. 6 and 7 (Arbind Singh and Anil Singh) were ordered to run concurrently. 2. The written report (Ext.2) by Alok Singh (PW 6) addressed to Officer-in-charge, Indrapuri, Rohtas detailed the occurrence of morning of 30th March, 1983. According to him, at about 7.30 a.m. Basishth Singh (deceased) was sitting at the outer house of Udai Kant Singh (PW 7). At that very time, some villagers including Rajendra Singh and Nagendra Singh came with daggers. Arbind Singh and Anil Singh were possessing guns. Satendra Singh was having garasa. Sita Ram Singh, Bharat Singh, Ramesh Singh and Kameshwar Singh were having lathis in their hands. Suddenly Rajendra Singh and Nagendra Singh indiscriminately stabbed Bashishth Singh and when Bashishth Singh fell down Nagendra Singh further stabbed him on his chest. Villagers including Indradeo Singh, Uday Kant Singh and Ram Pravesh Singh were present there and they witnessed the occurrence. On the basis of this written report, a formal first information report was drawn vide Dehri (Indrapuri) P.S Case No. 108 of 1983 under Sections 147, 148, 149 and 302 of the Indian Penal Code. The investigation was taken up. Inquest report (Ext.5) of the dead body of the deceased was prepared. During investigation, blood and dagger were seized and seizure list was prepared on which the witnesses have signed. After receipt of the post-mortem report (Ext.3), recording statement of witnesses and after inspecting the place of occurrence, the case was found to be true and charge-sheet was submitted. Inquest report (Ext.5) of the dead body of the deceased was prepared. During investigation, blood and dagger were seized and seizure list was prepared on which the witnesses have signed. After receipt of the post-mortem report (Ext.3), recording statement of witnesses and after inspecting the place of occurrence, the case was found to be true and charge-sheet was submitted. Cognizance was taken and thereafter the case was committed to the Court of Sessions where charge under Sections 302/149 of the Indian Penal Code was framed against all the nine accused persons, charge under Section 302 of the Indian Penal Code was also framed accused Rajendra Singh and Nagendra Singh and charge under Section 27 of the Arms Act was also framed against accused Arbind Singh and Anil Singh. Charges were explained to the accused persons who pleaded innocence and preferred to face the trial. 3. The defence of the accused persons was of false implication on account of the fact that one day prior to the occurrence, they were mercilessly assaulted by the prosecution party and while they were undergoing treatment Bashishth Singh was killed by strangers and only with a view to put pressure on the accused persons, present case has been filed. 4. The trial Court after considering the depositions of the prosecution and the defence witnesses, examination of the accused persons and after hearing the submissions came to the opinion that the prosecution has been able to prove the charges against the accused persons beyond the shadow of all reasonable doubts and hence convicted and sentenced them, as stated above. 5. This Court is required to reappraise the evidences on record and to see as to whether the prosecution has succeeded in proving the case against the appellants beyond the shadow of all reasonable doubts. 6. In order to prove its case, the prosecution has examined altogether 14 witnesses. They are: PW 1 Sheo Dayal Singh, PW 2 Surya Deo Singh, PW 3 Nand Kishore Singh, PW 4 Indra Deo Singh, PW 5 Dr. Sudhir Kumar Sinha who conducted post-mortem over the dead body of Bashishth Singh, PW 6 Alok Singh, the informant of the case, PW 7 Uday Kant Singh, PW 8 Mahendra Singh, PW 9 Alok Kumar Singh, PW 10 Ram Baleshwar Singh, PW 11 Braj Kishore Singh, PW 12 Narendra Singh. Sudhir Kumar Sinha who conducted post-mortem over the dead body of Bashishth Singh, PW 6 Alok Singh, the informant of the case, PW 7 Uday Kant Singh, PW 8 Mahendra Singh, PW 9 Alok Kumar Singh, PW 10 Ram Baleshwar Singh, PW 11 Braj Kishore Singh, PW 12 Narendra Singh. PW 13 Shiv Balak Lal and PW 14 Dina Nath Singh, the Investigating Officer of the case. 7. The defence has examined five witnesses. They are: DW 1 Dr. Ramashish Singh, DW 2 K.K. Kamal, DW 3 Jwala Prasad Singh, DW 4 Tusar Kant Datta and DW 5 Basudeo Singh. 8. Some papers have also been exhibited on behalf of the defence: Bed head tickets of patients have been marked as Exts.A to A/1. The entries in register have been marked as Exts.B to B/1. Injury reports have been marked as Exts. C to C/4. Calendar of the year 1983 hap been marked as Ext.D. Absentee statement has been marked as Ext.E. Signatures of authority have been marked as Exts.F to F 14. Application has been marked as Ext.G and report of the Forensic Science Laboratory has been marked as Ext. H. 9. PW 1, PW 8, PW 11 and PW 13 are formal witnesses. PW 1 has identified the writing of Parsuram Singh who was scribe of the written report. Parsuram Singh has not been examined. PW 8 has proved the writing of inquest report and his signature as well as signature of Ram Pravesh Singh on the inquest report. PW 11 is malkhana In-charge of Dehri Police Station who has produced the dagger which was seized in connection with the present case which has been marked Ext.1. PW 13 is an Advocate's clerk who has proved the writing of the formal F.I.R. which has been marked as Ext.4. 10. The second set of evidence is of P.Ws. 9 and 12 who have been tendered. 11. The third set of evidence is of P.Ws. 2, 3 and 10. They have been examined as hearsay witnesses as they have not seen any part of the occurrence. They have seen the assailants escaping or going from the place of occurrence. Thus, they are not witnesses of the occurrence. 12. The fourth set of evidence is of Official witnesses. They are PW 5 and PW 14, PW 5 has conducted the postmortem over the dead body of Bashishth Singh. They have seen the assailants escaping or going from the place of occurrence. Thus, they are not witnesses of the occurrence. 12. The fourth set of evidence is of Official witnesses. They are PW 5 and PW 14, PW 5 has conducted the postmortem over the dead body of Bashishth Singh. PW 14 has investigated the case and he is Investigating Officer of the case. 13. The fifth set of evidence is of most important witnesses who are P.Ws.4 Indra Deo Singh, PW 6 Alok Singh, the informant of the case and the son of the deceased and PW 7 Udai Kant Singh in whose house/room/sahan the alleged offence was committed. 14. The defence witnesses are also important because DW 1 was posted as Medical Officer in State Dispensary, Dehri on 29.03.1983 and 30.03.1983 which are the relevant dates in the present case. DW 2 was an Executive Engineer of Durgawati Irrigation Project where PW 4 were employed. He has come to depose that in between 28.03.1983 to 30.03.1983 these two witnesses were constantly on duty. DW 3 is a Dresser of State Dispensary, Dehri and he was posted there at the relevant time where accused persons were admitted on 29.03.1983. DW 4 is another public servant who at the relevant time was posted at Durgawati Irrigation Project and he has come to depose about the absence of PW 2 Surya Deo Singh and PW 4 Indradeo Singh at the place of occurrence on the alleged date of this case. Last defence witness DW 5 Basudeo Singh has been examined to support the contention of the D.Ws. 2 and 4 regarding presence of P.Ws. 2 and 4 at Durgawati Irrigation Project and thus it has been submitted that the prosecution has inflated its case by mentioning these two witnesses to be the witnesses of the occurrence. 15. Informant of the case Alok Singh, PW 6, is son of the deceased Bashishth Singh. He has stated that on the date of occurrence he was going to Dalmianagar along with his father who was employed as Time Keeper in Dalmianagar Factory. He left house at about 7.00 a.m. and for reaching Dalmianagar he used to take bus at Indrapuri Chauk. On the date of occurrence, this witness had accompanied his father. He has stated that on the date of occurrence he was going to Dalmianagar along with his father who was employed as Time Keeper in Dalmianagar Factory. He left house at about 7.00 a.m. and for reaching Dalmianagar he used to take bus at Indrapuri Chauk. On the date of occurrence, this witness had accompanied his father. When this witness proceeded with his father (deceased Bashishth Singh), in the way, they sat at the house of Uday Kant Singh (PW 7), Indradeo Singh (PW 4), Uday Kant Singh (PW 7) and Ram Pravesh Singh (not examined) were sitting there from before. Suddenly, Nagendra Singh and Rajendra Singh having kdaggers in their hands, Kameshwar Singh, Bharat Singh, Sita Ram Singh, Ramesh Singh having lathis in their hands, Arbind Singh and Anil Singh having guns and Satendra Singh having garasa carne. The accused persons exhorted to kill Bashishth Singh. Bashishth Singh thereafter escaped to the baithka of Uday Kant Singh, Kameshwar Singh, Bharat Singh and Sita Ram Singh instigated to assault. Thereafter Nagendra Singh and Rajendra Singh stabbed Bashishth Singh who fell down after receiving injuries. After he fell down, then Nagendra Singh again stabbed upon his chest. 16. While the injured Bashishth Singh was being carried to Hospital for treatment, he died in the way and his dead body was taken to Indrapuri Police Station where application, which was got written by Parsuram Singh (not examined) and putting signature (Ext.2) by the informant, was submitted to the Office-in-charge. According to this witness, the witnesses Ram Pravesh Singh. Ram Lakhan Singh and Sudarshan Singh who were full brothers and sons of Radha Singh have gone in favour of accused persons, so they were given up. Similarly Parsuram Singh has also gone with the side of accused persons. This witness has stated about the manner of occurrence and in this way he has been supported by P.Ws. 4 and 7 and they have described the manner almost in similar manner as that of PW 6. In cross-examination, the manner and time are almost identical as given by PW 6. Therefore, the evidence of P.Ws.4 and 7 do not require to be discussed separately. Other witnesses are hearsay, so their evidences are of no use when eye-witnesses were present. 17. In cross-examination, the manner and time are almost identical as given by PW 6. Therefore, the evidence of P.Ws.4 and 7 do not require to be discussed separately. Other witnesses are hearsay, so their evidences are of no use when eye-witnesses were present. 17. If the statement of eye-witnesses is taken into account, then only version of the occurrence is that Bashishth Singh has set out for Dalmianagar but on the sahan of PW 7 he was stabbed at 7.30 a.m. on 30th March, 1983 and this proved fatal. 18. PW 5, Dr. Sudhir Kumar Sinha, was posted as Civil Assistant Surgeon at Sadar Hospital, Sasaram and on 30th March, 1983 at 1.15 p.m. he held post-mortem over the dead body of the deceased Bashishth Singh and found following anti-mortem injuries on his person: (i) sharp cut wound about 1" x 1/6" deep to interior over left 8th intercostals space; (ii) sharp cut injury about 1/2" x 1/2" left side of chest in front; (iii) sharp cut wound about 1" x 1/6" through and through over the middle of left arm; (iv) sharp cut wound about 1/2" x 1/6" over left 10th intercostals space on back side; (v) sharp cut wound 1" x 1/6" over left lumber region; (vi) multiple sharp cut wounds four in numbers 1" x 1/6", 1-1/4" x 1/6", 1.75" x 1/6", 1-1/2" 1 x 6" deep to the bone over back of left scapula; (vii) three sharp cut wounds 1"x 1/6", 1-1/2" x 1/6", 1" x 1/6" all/bone deep over occipital region over skull. All the wounds were caused by sharp pointed weapon such as dagger and time of death was within 24 hours from the time of post-mortem. The death is at 7.30 a.m. or soon thereafter on 30th March, 1983 and thus according to this witness PW 5, the death is within 24 hours. When this version was sought to be clarified, then PW 5 in paragraph 10 has stated that within 24 hours means beyond 12 hours and within 24 hours. The result of evidence of PW 5 is that the death was between 1.15 p.m. on 29th March, 1983 to 1.15 a.m. on 30th March, 1983. In the present case, if the eye-witnesses count are read, the death was between 7.30 a.m. or soon thereafter. The result of evidence of PW 5 is that the death was between 1.15 p.m. on 29th March, 1983 to 1.15 a.m. on 30th March, 1983. In the present case, if the eye-witnesses count are read, the death was between 7.30 a.m. or soon thereafter. This version of the doctor's evidence is not in conformity with eye-witnesses count about the time of occurrence. 19. Another fact which has come in the eye witnesses count is that PW 6 has stated/that his father used to come for sleep after taking meal in the evening. On the date of occurrence in the morning he has taken his meal. The occurrence is of early morning i.e. of 7.30 a.m. and informant has also taken meal along with his father meaning thereby just before setting out from his home the deceased has taken meal. The doctor PW 5 in paragraph 9 has noted that the stomach of the deceased was empty. There was no food-stuff in the stomach of the deceased. He has also stated that the food-stuff remains in abdomen for about six hours and here eye-witnesses count and doctor evidence are at variance and both are giving two aspects of the occurrence. Non-finding of any food/meal in the stomach and specific evidence that just before death the victim had taken meal cannot be taken on the same face value because of contradictory and conflicting version coming out in the evidence. 20. Learned counsel for the appellants has submitted that on this score alone the prosecution case is fit to be disbelieved. Reliance has been placed on the judgment report in 2003 (2) Cr LJ 1694, Moti etc. v. State of U.P., wherein this situation was considered and it was found that in such conflicting version, the order of conviction cannot be justified. The relevant paragraphs are being reproduced hereinbelow: "Having heard learned counsel for the parties and perused the materials on record, we notice that there is a serious flaw in the prosecution case as to the time of the incident. According to the prosecution, the incident in question has occurred around 9.30 p.m. on 18.6.1979 when deceased and his father-in-law were sitting on a cot outside their house after finishing their dinner. According to the prosecution, the incident in question has occurred around 9.30 p.m. on 18.6.1979 when deceased and his father-in-law were sitting on a cot outside their house after finishing their dinner. PW 5 Tara, the wife of the deceased, in her evidence has stated thus: "Ram Briksha used to look after it in day time and he used to return back in the evening. He was sitting after taking his meal. First of all, male member of family took their meal then female member of the family took meal. Rice, roti and vegetable were prepared in food. Amongst the male members my father and husband were there at my home. We had taken meal half an hour before the murder. As my father and husband sat out side the house after taking food then accused armed with bhala and lathi came there I had prepared food. Today my mother has accompanied me." It is clear from the said evidence of the wife of the deceased that on the date of incident her husband after coming back from working in the evening along with his father-in-law took his meal which was cooked by PW 5. She also says that for the said meal she had cooked rice, roti and vegetables and the said meal was served to her father and husband about half an hour before the incident in question. This evidence has not been clarified in any manner by the prosecution. Though PW2 Parvati, the mother-in-law of the deceased at one place in her evidence says that the dinner was not cooked when the incident had taken place. We find it difficult to reject the evidence of PW5 when she states that the dinner was cooked and the deceased and her father had eaten by the time the incident had taken place. It is common knowledge that in a village, more so, in a place where there is no electricity, the villagers after furnishing their work normally have their meals early. Therefore, the evidence of PW 5, in our opinion, fits into the normal conduct of a villager and hence is worthy of acceptance. If this be the evidence that is adduced by the prosecution then the post-mortem report should clearly show at least semi-digested food, if not undigested food in the stomach of the deceased, but the evidence of the doctor in this regard is quite the contrary. If this be the evidence that is adduced by the prosecution then the post-mortem report should clearly show at least semi-digested food, if not undigested food in the stomach of the deceased, but the evidence of the doctor in this regard is quite the contrary. Both the post-mortem report and the medical evidence adduced by the prosecution clearly show that the entire stomach of the deceased including both the intestines were empty which would indicate that at the time of the murder the deceased had not taken his meals and his murder must have taken place at least 3 to 4 hours after he had his last meal. PW 5 at one place in her evidence states that her husband had his lunch in the afternoon and was resting because he was not feeling well. Therefore, it is possible that the deceased was done to death much after his afternoon meal and much before his night meal. If this be the fact then there is a serious dispute as to the actual time of incident which is a very much important factor in finding out whether the case as presented by the prosecution is true or not. This discrepancy also affects the credibility of evidence of eyewitnesses because if really the incident had occurred much before the dinner time, a doubt is created in our minds whether these eye-witnesses could have noticed the incident at all and if they noticed the incident why they are stating the time of incident as 9.30 in the night. It is rather surprising that, the High Court should find this part of the medical evidence as being of no consequence at all. The High Court referring to this part of the medical evidence has observed : "In our opinion the stomach contents are not very material to determine the time of incident." We are of the considered opinion that this view of the High Court is wholly erroneous. It may be possible to contend that contents of the stomach may not always be an indicator of the time of death. But in a case where stomach is empty and the prosecution evidence is that the murder had taken place shortly after the deceased has his last meal to say that the contents of the stomach have no material bearing on the determination of the time, in our opinion, is not acceptable. But in a case where stomach is empty and the prosecution evidence is that the murder had taken place shortly after the deceased has his last meal to say that the contents of the stomach have no material bearing on the determination of the time, in our opinion, is not acceptable. In instant case, time of death being a material factor to verify the presence of the eye-witnesses it was obligatory for the prosecution to have clarified the discrepancy between the medical evidence and the oral evidence. The prosecution having failed to do so, in our opinion, a serious doubt as to the time of incident and the presence of the eye-witnesses at the time of incident and their narration of the incident also becomes doubtful. Incidentally, we may also notice that even according to the prosecution, appellant Moti had no motive to commit the crime in question. The incident as narrated by the eye-witnesses having taken place in a place where there was no proper light to identity the actual accused who dealt the fatal blow also contributes to the factum of doubt in the prosecution case. Therefore, in our opinion, the prosecution has failed to establish its case against the appellant Moti." 21. Other aspect which has come during evidence is that one day prior to the occurrence assault had taken place. This-assault on 29.03.1983 has resulted into three criminal cases registered vide Dehri P.S. Case. No. 103 of 1983 to 105 of 1983. In all these three cases PW 4 Indra Deo Singh was accused. Other persons of defence are also accused. This has come in evidence of PW 4 in paragraph 9. PW 2 in paragraph 12 and PW 14 in paragraph 50. This fact ought to have been brought on record by the prosecution but this has come only at the instance of the defence. It has also come in evidence that appellant Nos. 7 and 8 were hospitalized on account of assault which has resulted in aforesaid three cases on 29.03.1983 and these two persons were arrested from the hospital itself. The Investigating Officer of the case PW 14 has stated this fact in paragraphs 35, 36, 37, 39, 47, and 57 of his evidence. 7 and 8 were hospitalized on account of assault which has resulted in aforesaid three cases on 29.03.1983 and these two persons were arrested from the hospital itself. The Investigating Officer of the case PW 14 has stated this fact in paragraphs 35, 36, 37, 39, 47, and 57 of his evidence. It has further come in the evidence of Investigating Officer that he had gone to the place of occurrence after hearing some rumour regarding assault to Bashishth Singh and for that sanha entry was made but this sanha entry has not been brought on record. Another aspect in the evidence of PW 14 in paragraph 23 has come that when dead body of Bashishth Singh was brought to the police station, then he asked PW 6, PW 7, PW 3, PW 9 and Ram Pravesh Singh as to whether they have seen the occurrence, nobody replied. When the Investigating Officer inspected the place of occurrence which has been noted in paragraph 24 of his evidence nothing abnormal was found and no tampering mark was also found. Blood was found at one place. It has come in paragraph 12 of the evidence of PW 7 that the accused persons have escaped through the onion field and they leaved their foot marks there. PW 14 has stated that in course of inspection of place of occurrence no mark of foot was found in the onion field. Blood was also not found in the room or in the baithka. The first version of assault should have come when the Investigating Officer had asked the witnesses the detail about assailants at the police station but they have kept mum which gives doubt regarding participation of the appellants in the occurrence and this fact if read with the doctor's opinion regarding time of death it gives some credence to the fact that the occurrence was not witnessed by the witnesses or if witnessed had seen the occurrence, then correct version has not come. 22. 22. Though the prosecution case can be doubted only on account of one consideration regarding shifting of time between eye-witness account and medical evidence but other circumstances namely, non-finding of food stuff by the doctor though according to eye-witness account meal was taken by the deceased before the death, non-mentioning of the names of the assailants by the witnesses before the Investigating Officer at the police station, non-finding of any trampling mark in the onion field though claimed by PW 7 in paragraph 12, non-finding of blood in the room or baithka, non-production of sanha, concealing the occurrence one day before which has resulted into three cases, statement of the Investigating Officer regarding arrest of two accused namely, Anil Singh and Rajendra Singh from the hospital itself before time of occurrence and other materials it can safely be held that the prosecution has not come with clear version of the occurrence and the major inconsistencies have not been explained by the prosecution. The defence witnesses are public witnesses and their evidences are in the line with the version given by the Investigating Officer. Therefore, considering all aspects of the matter, we are of the view that the prosecution has not been able to prove the charges beyond the shadow of all reasonable doubts. 23. In the result, the judgment of conviction and order of sentence is set aside. The appeal is allowed. The appellants are acquitted of the charges and they are discharged from liabilities of their respective bail bonds. Appeal allowed.