JUDGMENT (MIHIR KUMAR JHA) This appeal is directed against the judgment dated 11.9.1990 passed by the 5th Addl. Sessions Judge, Siwan in S.Tr.No. 286/1981, whereby and whereunder both the appellants, Kuber Mali and Ram Bahadur Mali, have been convicted for offence under section 302/34 of the Indian Penal Code and sentenced to undergo Rigorous Imprisonment for life. 2. The prosecution case is based on a fardbeyan given by Lalita Devi (P.W.6), the wife of the deceased, who at 9.00 A.M. on 6.8.1980 had stated before the Police Officer that while she had come out of her house to ease herself early in the morning on 6.8.1980 as also to awake her husband Indradeo Mali sleeping in the Bathan, she had found her husband dead lying on the floor of Bathan where copious blood was spread all over the floor. She had also stated that seeing her husband to be dead she started wailing and crying and on this a number of persons including Jawahir Mali (not examined), Birendra Mali (not examined) had come to the Bathan and had seen the dead body of her husband lying on the floor of the Bathan. She had further disclosed that the motive for the said killing of her husband could be a dispute relating to the land of that very Bathan in which her husband was killed, inasmuch as appellant no.1 Kuber Mali was desperate in taking possession of such land and had also always been fighting with her husband for the same. In this regard she has also narrated an incident of a day earlier when according to her while her husband was digging earth of that very land and she and her daughter Nirmala Devi (not examined) were carrying such earth for constructing a Naad, appellant no.1 around 12 noon was repeatedly crossing over the land and was threatening that her husband will also be buried in that very Naad which was being constructed by them. Thus, alleging this as a motive the informant in the fardbeyan had stated that she was of the view that it was appellant no.1 who had killed her husband in the night. 3. Thus, alleging this as a motive the informant in the fardbeyan had stated that she was of the view that it was appellant no.1 who had killed her husband in the night. 3. It has to be taken into account that the fardbeyan of the informant (P.W.6) was said to be made in presence of the attesting witness Birendra Mali (not examined) and had led to institution of Guthni P.S.Case No. 2 of 1980 wherein the police after investigation had submitted a charge sheet against both the appellants and the offence being triable by a court of Sessions, it was committed an order dated 4.4.1981 and had led to present trial resulting into conviction of the appellants by the impugned judgment which is the subject matter of this appeal. 4. Learned counsel for the appellants while assailing the aforementioned judgment has submitted that it is virtually a case of no evidence, inasmuch as first of all there is no eye witness to the occurrence and in fact when the police had itself proceeded without naming any accused in the F.I.R., the subsequent development made by the prosecution witnesses only in court contrary to their earlier statement given before the police would really amount to developing a case with material change in the entire prosecution story and on the basis of such inconsistent evidence the conviction of the appellants cannot be sustained. It has also been submitted on behalf of the appellants that when the Investigating Officer as also witnesses named in the fardbeyan, such as Birendra Mali and Jawahir Mali were not examined nor even the daughter of the deceased, namely, Nirmala Devi was brought forward by the prosecution to support the prosecution case, the resultant adverse inference ought to have been drawn by the trial court and therefore, the impugned judgment even otherwise cannot be sustained. In this regard it has also been explained by the learned counsel for the appellants that as a matter of fact P.W.1 Phulena Mali, P.W.2 Udai Narain Mali, P.W.3 Dhananjai Mishra, P.W.4 Surendra Singh and P.W.5 Rajbanshi Mali, all of whom have appeared as a prosecution witness, were not named by the informant in any manner to be present at the place of occurrence and as such, their evidence will never inspire any confidence in the prosecution case. An ancillary argument in this regard has been made that the police initially had suspected the murder of the deceased to have been committed by P.W.1 Phulena Mali and P.W.2 Udai Narain Mali and as such, when they were subsequently let off at the intervention by Dy.S.P., their evidence at least as against the appellants, is fit to be discarded, especially when it has been also admitted by them that they were on litigating terms with the deceased as well as the appellants. On the basis of these submissions learned counsel for the appellants has submitted that the impugned judgment being bad both on fact and in law is fit to be set aside. 5. Per contra, Ms. Shashi Bala Verma, learned A.P.P., appearing on behalf of the State, while supporting the findings in the impugned judgment has submitted that true it is that the informant in her statement before the police in the fardbeyan did not claim to be the eye witness and had confined her case as against appellant no.1 Kuber Mali on the basis of suspicion but when in course of investigation the prosecution case as ultimately putforward in court had gathered support from the evidence of the other persons, such as P.Ws. 1 to P.W.5, the same cannot be altogether rejected only because the informant in her earlier statement before the police had not disclosed the name of the two appellants as the assailant of her husband. In this regard she has stated that non-examination of the Investigating Officer in this case has not prejudiced the appellants, inasmuch as from the other ocular evidence the case against them has been fully established. As with regard to non-examination of the named witnesses in the fardbeyan it has been sought to be clarified that since none of them had arrived prior to advent of the informant and they at best could have been hearsay witness only on the point of finding the dead body of the deceased Indradeo Mali, their non-examination in no way had adversely affected the prosecution case. Commenting further as with regard to quality of evidence of P.W.1 and P.W.2, she is of the view that the enmity cuts both way and if, therefore, the appellants were on litigating terms with them, they could have also committed the occurrence in question, especially when the issue of Panchayati over the land of the Bathan in question on which the dead body of the deceased was found itself would inspire confidence in the evidence of the prosecution witnesses. On the basis of these submissions she is of the view that the impugned judgment would require no interference from this Court. 6. Before we would appreciate the rival contentions of both the parties, it would be necessary for us to take into account the evidence which has been brought on record by the prosecution. As noted above, there are two set of witnesses, namely, P.W.1 Phulena Mali, P.W.2 Udai Narain Mali and P.W.5 Rajbanshi Mali, who alike the informant (P.W.6) Lalita Devi are said to have arrived at the place of occurrence after Indradeo Mali (deceased) was already done to death. Thus, their evidence is of nature of hearsay witness and some of them have also gone to the extent of saying that they had seen the two appellants fleeing away from the place of occurrence while being armed with weapons as also having blood stained cloth on their person. The other set of witnesses are P.W.3 and P.W.4, namely, Dhananjai Mishra and Surendra Singh who have been brought forward by the prosecution on the point of Panchayati over the land in question. P.W.7 Dr. Deonarain Sinha is the doctor, who had conducted the postmortem and P.W.8 Ram Chandar Giri is Taid (Law Clerk) who has proven the case diary, inquest report etc. in absence of the Investigating Officer. The prosecution has also exhibited certain documents, such as postmortem report as Ext.1, fardbeyan as Ext.2, formal F.I.R. as Ext.3, inquest report as Ext.4 and the case diary as Ext.5. 7. The defence however has neither led any ocular or documentary evidence and from the trend of cross-examination as also statement of the appellants under section 313 Cr.P.C. their case seems to be one of complete innocence as also denial of the occurrence in the manner alleged. 7. The defence however has neither led any ocular or documentary evidence and from the trend of cross-examination as also statement of the appellants under section 313 Cr.P.C. their case seems to be one of complete innocence as also denial of the occurrence in the manner alleged. They have also taken their defence that the deceased was done to death in altogether different manner and it is only on account of previous enmity that they have been framed in this case. 8. The prosecution case, as noted above, having been based on the version of the informant (P.W.6), the wife of the deceased Indradeo Mali, has to largely depend on her version, especially when it is realized that she is the wife of the deceased. The fardbeyan of P.W.6 was given to the police at 9.00 am well after six hours of the alleged occurrence, inasmuch as it has come in evidence of the prosecution witnesses that the occurrence has taken place in and around 3.15 A.M. early morning on 6.8.1980 and thus it would be unbelievable that if by that time also the informant had either seen or known about the name of the assailants of her husband, she could have spared anyone of them including the appellants. As a matter of fact when in her statement at 9.00 A.M. to the Police Officer at the village home she has only gone to make a wild guess that such death of her husband could have been caused by appellant no.1 Kuber Mali and even without putting any finger of suspicion against appellant no.2 Ram Bahadur Mali the allegation cannot be said to be proven by the prosecution so as to ultimately implicate and hold these appellants guilty of the charges. True it is that the prosecution case can be well developed beyond the contents of the F.I.R. but then as the F.I.R. remains intact on the basis of which the police proceeds to investigate the case. its importance cannot be altogether minimised. In other words the prosecution case is based on ferdbayan of P.W.6 where there was no specific allegation against the appellants except finger of suspicion against appellant no.1 and thus there had to be something special and specific against the appellants for there being ultimately connected and held guilty for offence of committing murder of Indradeo Mali. 9. In other words the prosecution case is based on ferdbayan of P.W.6 where there was no specific allegation against the appellants except finger of suspicion against appellant no.1 and thus there had to be something special and specific against the appellants for there being ultimately connected and held guilty for offence of committing murder of Indradeo Mali. 9. Unfortunately when this Court has perused the evidence on record including that of the informant (P.W.6), it has found that whatever evidence has been ultimately brought on record is absolutely contrary to the version earlier given to the police. The attention of P.W.6 to her earlier statement before the police has been drawn and as noted above, the same stands corroborated even in absence of the Investigating Officer inasmuch as it is proved that in her earlier statement before the police when she had neither given the name of the appellants nor had claimed even to be a eye witness to the appellants running away from the place of occurrence. In that view of the matter, the evidence of the informant as with regard to involvement of the appellants in the manner alleged would require at least some corroboration but then unfortunately even on this aspect there is no evidence worth reliance. In this regard it has to be noted that in the fardbeyan she had given name of one set of persons who are said to have arrived at the place of occurrence and wherein none of the prosecution witnesses P.W. 1 to P.W.5 have been named. Those who were named in the fardbeyan have not been examined and her statement before the court that she could identify the appellants in the torch light of P.W.1 Phulena Mali stands fully exposed from the statement of Phulena Mali (P.W.1) who somehow has named everyone to have arrived at the place of occurrence but for P.W.6 Lalita Devi, the wife of the deceased. There is also no explanation as with regard to this part of contradiction in the evidence of P.W.6 which would make her thoroughly unreliable as with regard to version given in the court. 10. It is in this backdrop that when this Court has examined the other set of evidence of P.W. 1, P.W.2 and P.W.5, it has found that there has been substantial development made by them. 10. It is in this backdrop that when this Court has examined the other set of evidence of P.W. 1, P.W.2 and P.W.5, it has found that there has been substantial development made by them. In this regard it would be significant to note that P.W.1 and P.W.2 both are the nephew of the deceased Indradeo Mali and are from the same stock of family and in fact have also claimed their houses at the same place. Thus, when P.Ws. 1 and 2 were not even named as witnesses to the occurrence in the F.I.R., their evidence in order to be inspiring had to contain an iota of truth. Unfortunately that is completely lacking in their evidence, inasmuch as first of all they had stated before the police that appellant no.1 had killed the deceased in the night but subsequently the have also given a different story altogether. As noted above, P.W.1 did not name, P.W.6 wife of the informant to have arrived at the place of occurrence and he had actually named the first two persons as himself as also mother of appellant no.2 to have arrived at the place of occurrence. While explaining further on this aspect in paragraph no.6 he had named arrival of Rajbanshi Mali (PW5) and Udai Narain Mali (PW2) at the place of occurrence and had not named anyone of the family members of the deceased either the mother of the deceased or wife or even daughter of the deceased. In this background when his evidence is also examined, he seems to have virtually changed the whole prosecution case when in paragraph no.13 he had stated that he went to the police station to inform the police as with regard to the manner of occurrence at 5 A.M. early in the morning and police also had arrived in the village at the place of occurrence at 6.30 A.M. in the morning. These all are infact embellishment made by him, inasmuch as even in course of statement recorded before the police he had not stated this fact and has been infact exposed in course of his cross examination. 11. In that view of the matter, the evidence of PW1 also would not inspire any confidence much less give credence to the prosecution case. 11. In that view of the matter, the evidence of PW1 also would not inspire any confidence much less give credence to the prosecution case. It has to be kept in mind that P.W.1 claimed to be torch bearer in the real sense inasmuch as he has given the torch to the police but then P.W. 5 has exposed his such claim by stating in his evidence that the torch was never handed over to the police or the investigating agency and was still with P.W.1 himself. In that view of the matter, whatever has been stated by this P.W.1 and in fact also sought to be explained by P.W.2 who is virtually replica of P.W.1 would also not lend any support to the prosecution case. It is true that P.W.5 had come out to say about the occurrence in a different manner but then the evidence of P.W.5 had given an altogether new turn to the prosecution case wherein he had claimed to have gone to Siwan alongwith the deceased but his presence at the place of occurrence having been asserted by PW1 and PW2 would infact expose his entire evidence in court to be unreliable and untrustworthy. As noted above, there is no story of the prosecution that after Indradeo Mali was noticed in a pool of blood either by P.W.6 or P.W.1 or P.W.2 who are said to have arrived at the place of occurrence and whereafter the deceased was ever taken to Siwan. Moreover, the Investigating Officer as per his inquest report had found the dead body of Indradeo Mali in the Palany of Bathan and therefore, no shift can be made in the prosecution case as was sought to be changed by P.W.5. 12. This Court, therefore, will have no difficulty in rejecting the evidence of P.Ws. 1, 2 and 5, inasmuch as they have not given any truthful version of the occurrence and when this fact has also remained unshaken that P.Ws. 1 and 2 themselves were in the zone of suspicion and initially were sought to be interrogated by taking them to the police station by the police, their evidence in court for implicating these appellants would also not inspire confidence. It is also to be noted that initially P.W.6 also did not rely on P.Ws. 1 and 2 themselves were in the zone of suspicion and initially were sought to be interrogated by taking them to the police station by the police, their evidence in court for implicating these appellants would also not inspire confidence. It is also to be noted that initially P.W.6 also did not rely on P.Ws. 1 and 2 and had not named them to be present in any manner at the place of occurrence so as to allow them to become witness to the occurrence in question. 13. The other set of evidence of P.W.3 and P.W.4 on the point of Panchayati would hardly serve any purpose for the prosecution because it has been stated by almost all the witnesses that such Panchayati had taken place in the month of Falgun i.e. some five months back from the date of occurrence and the verdict of the Panchayati was accepted by appellant no.1 Kuber Mali who thereafter had given up his claim on the bathan of the deceased. It, therefore, does not appear logically sound for the prosecution to come out with the story of Panchayati or land of bathan being the reason for committing murder of Indradeo Mali the deceased. The suggestion given to P.W. 1 and P.W.2 in fact goes to show otherwise inasmuch as that they were admittedly agnates and nephew of the deceased and were having their own dispute over the land with the deceased and for which litigation was also pending between the parties. In that view of the matter, it cannot be authentically said that the motive suggested in the fardbeyan for committing murder of Indradeo Mali being the bathan of the land was successfully proven and thus, from the evidence of P.Ws. 3 and 4 there is no support to the prosecution case. 14. A question, therefore, would arise as to why the prosecution had left out to examine three witnesses i.e. Jawahar Mali, Birendra Mali and Nirmala Devi named in the F.I.R. The only explanation given by P.W.6 in her evidence is that they were afraid of deposing against the appellants. Such lame explanation cannot be a ground to withhold the most relevant witnesses who could have unfolded the entire prosecution case. Such lame explanation cannot be a ground to withhold the most relevant witnesses who could have unfolded the entire prosecution case. As a matter of fact it appears that after P.W.6 had initially not made any allegation of specific overt act against these appellants in her fardbeyan and the prosecution wanted to change its case as has been ultimately done, it had found appearance of the three aforesaid named witnesses in the fardbeyan to be the stumbling block. That is how all three of them were withheld. Their non-examination as also non-examination of the Investigating Officer in the facts and circumstances of this case has become fatal, inasmuch as in the absence of I.O. the appellants could not confront the steps taken in course of investigation by the police in which the involvement of P.W.1 and P.W.2 as the murderer of the deceased Indradeo Mali had come to surface. 15. There is also something significant in the medical evidence, inasmuch as the time of occurrence is said to be 3.15 A.M. on 6.8.1980 but when the postmortem was conducted on 7.8.1980 at about 11 A.M. the doctor P.W.7 on the basis of condition of the dead body could not extend time elapsed since death beyond 18 hours. Such postmortem having been conducted after 27 hours timing given in the fardbeyan as disclosed by the prosecution witnesses would also remain shrouded mystery. In this situation this Court would find that the only basis for implicating the appellants was strong suspicion of prosecution party particularly the informant, the wife of the deceased, who had reasons to believe that since the Panchayati had ended in favour of her husband the, same had made appellant no.1 aggrieved and to hide this she had also given narration of incident of an earlier day. None-the-less whatever has been stated by her in the fardbeyan or in the evidence in this regard will be only raise suspicion and on the basis of such suspicion, howsoever strong it may be the charge can not be said to be proved much less beyond reasonable doubt. This aspect of the matter also stands well settled by the Apex Court in the case of Narayan Rao v. State of Andhra Pradesh, reported in AIR 1957 SC 737 and recently in the case of Sk. Yusuf v. State of West Bengal, reported in AIR 2011 SC 2283 . 16. This aspect of the matter also stands well settled by the Apex Court in the case of Narayan Rao v. State of Andhra Pradesh, reported in AIR 1957 SC 737 and recently in the case of Sk. Yusuf v. State of West Bengal, reported in AIR 2011 SC 2283 . 16. It is true and this Court also must take into account that the informant had in her evidence sought to explain that the Police Officer who had recorded her fardbeyan had taken her thumb impression on a blank paper and had later on changed the prosecution story. She, however, was made aware of this part of change in the prosecution case but in her cross-examination she has clearly stated that she did not make any protest or complaint against the concerned Police Officer. It is not that she was not aware of the procedures, inasmuch as her mother-in-law was examined under section 164 Cr.P.C. within 15-16 days of the occurrence and therefore, if even at that point of time nothing was suggested as against the role of the police or the Investigating Officer to have changed the prosecution case, a mere ipsi dixit of the informant in the court after ten years in the course of her examination in Court would not inspire confidence. Moreover, the advantage of this change in the prosecution case or leveling the allegation by one set of prosecution witness i.e. P.W. 1 to P.W.5 cannot be obtained by them by not examining the Investigating Officer. Non-examination of the Investigating Officer was sought to be explained by P.W.8 but he again has been thoroughly exposed when in his cross-examination he had to accept that the Investigating Officer was very much in service and not even gone to Mumbai as was suggested to him. In such a situation non-examination of the Investigating Officer also would a question whether the prosecution having changed its entire case from one which was given to the police had deliberately withheld the Investigating Officer so as to secure conviction of the appellants on the basis of subsequent change made in the prosecution case by the prosecution witnesses. 17. Based on the aforementioned analysis of evidence on record this Court will have no difficulty in holding that the prosecution has miserably failed to prove its case beyond reasonable doubt. 17. Based on the aforementioned analysis of evidence on record this Court will have no difficulty in holding that the prosecution has miserably failed to prove its case beyond reasonable doubt. Consequently the impugned judgment of conviction and sentence of the appellants must be held to be bad. 18. In the result, this appeal is allowed and the impugned judgment of conviction and sentence is hereby set aside. The appellants are on bail and as such, they would now stand discharged from the liability of their bail bonds.