JUDGMENT (ORAL) Shyam Kishore Sharma, J.:- The above-named appellants have preferred this appeal against the judgment of conviction and order of sentence dated 7.08.1989 passed by the learned 2nd Additional Sessions Judge, Bhagalpur in Sessions Case No.368 of 1982 by which they have been convicted and sentenced to undergo rigorous imprisonment for life for the offence punishable under Sections 302/149 of the Indian Penal Code. 2. The prosecution case, according to the written report (Ext.1), is that on 12.02.1982 at about 8.30 P.M., the informant Balram Paswan (P.W.1), his brother Raja Ram Paswan (P.W.3), Siya Ram Paswan (P.W.2), Parsuram Paswan (deceased) and the co-villagers Singheswar Thakur (P.W.8) and Ram Swaroop Rai (P.W.9) were sitting near the fire (Ghura) and talking at the Darwaja of the informant. Shanti Devi (P.W.6), wife of Parsuram Paswan (deceased) was cooking. In the meantime, co-villager-appellants Bhinsa Churihara, Kalicharan Churihara and Sita Ram Churihara @ Khedan Churihara came there. Bhinsa Churihara requested Parsuram Paswan to go to the Panchayat, which was being held at his Darwaja. Parsuram Paswan (deceased) asked as to what was the matter of Panchayati. Kalicharan Churihara told him that it was confidential and he would come to know the matter in the Panchayati itself. On the query of Parsurm Paswan (deceased), Bhinsa Churihara told him that Chandra, Bhudeo, Prabhudayal, Sudin and others were present there. Thereafter, Parsuram Paswan went with them. After 10 minutes, the informant and others heard the cry of Bachao-Bachao (save) which appeared to be that of Parsuram and then they heard some persons saying “Kill him”. It created suspicion in their mind and the informant, Sitaram Paswan, Raja Ram Paswan, all sons of Narayan Paswan (P.W.4), Singheshwar Thakur (P.W.8) and Ram Saroop Rai (P.W.9) rushed to the place with lantern and torch. After hearing the murmuring, they rushed to the courtyard of Sudin Churihara and saw all the accused-appellants and others were dragging the bloodstained dead body from the house of Sudin Churihara. The informant asked as to what they had done. Thereafter, Kalicharan Churihara and Bhudeo Churihara asked the co-accused to kill him. On raising alarm by the prosecution party, co-villagers came there and all the accused left the dead body and moved. Thereafter, it was found that it was the dead body of Parsuram Paswan, brother of the informant. Bhudeo and Bhajjan Churihara out of the accused were apprehended. Thereafter, Kalicharan Churihara and Bhudeo Churihara asked the co-accused to kill him. On raising alarm by the prosecution party, co-villagers came there and all the accused left the dead body and moved. Thereafter, it was found that it was the dead body of Parsuram Paswan, brother of the informant. Bhudeo and Bhajjan Churihara out of the accused were apprehended. Kalicharan left the bloodstained axe and Bhudeo Churihara was armed with Bhala. It has been alleged that all the accused (appellants) have killed Parsuram Paswan due to enmity. On the basis of the written report, formal FIR (Ext.6) as Jagdishpur P.S. Case No.12 dated 13.02.1982 was instituted for the offence punishable under Sections 147, 148, 149 and 302 of the I.P.C. After investigation, charge-sheet was submitted. Cognizance was taken. The case was committed to the court of sessions. The charges were framed against the appellants for the offence punishable under Sections 302/149 of the I.P.C. to which they denied and claimed to be tried. After the trial, the appellants have been found guilty and they have been convicted and sentenced, as aforesaid. 3. The defence of the accused was total denial of the occurrence as alleged by the prosecution and it has been claimed that the deceased was a man of bad character and had illicit relation with the wife of Deghar Churihara and Sitaram Churihara for which Panchayati was also held and due to this previous enmity, the accused persons have been implicated in this case. Further, Mira Devi, wife of Bhinsa Churihara has brought a case for committing rape on her against the deceased on the same date of occurrence. 4. This Court is required to see as to whether the prosecution has been able to substantiate its case beyond reasonable doubt. 5. In order to prove its case, the prosecution has examined 15 witnesses. They are namely, P.W.1 Balram Paswan, the informant and the elder brother of the deceased, P.W.2 Siya Ram Paswan, P.W.3, Raja Ram Pawan, both the brothers of the deceased, P.W.4 Narayan Paswan, father of the deceased, P.W.5 Munga Devi, mother of the deceased, P.W.6 Shanti Devi, wife of the deceased, P.W.7 Raushan Thakur, P.W.8 Singheswar Thakur, P.W.9 Ram Swaroop Rai, P.W.10 Dr. H.I. Ansari, P.W.11 Ramadhar Paswan, P.W.12 Kishori Paswan, P.W.13 Ramchandra Sinha (I.O.), P.W.14 Gopal Chandra Ghosh and P.W.15 Mira Devi. 6. H.I. Ansari, P.W.11 Ramadhar Paswan, P.W.12 Kishori Paswan, P.W.13 Ramchandra Sinha (I.O.), P.W.14 Gopal Chandra Ghosh and P.W.15 Mira Devi. 6. Out of these witnesses, P.W.1 to P.W.6 are the brothers, father, mother and wife of the deceased. P.W.7, P.W.8, P.W.9 and P.W.12 have been tendered. P.W.10 is the doctor, who has held the post-mortem examination. P.W.11 is the seizure list witness. P.W.13 is the Investigating Officer, who has proved the inquest report (Ext.4), endorsement on the written report (Ext.5) and formal FIR (Ext.6). P.W.14 and P.W.15 are hostile witnesses. 7. P.W.10 Dr. H.I. Ansari has stated that on 13.02.1982, he was posted as tutor in Forensic Medicine in Bhagalpur Medical College and on the same day, he held the post-mortem examination on the dead body of Parsuram Paswan, aged about 35 years at about 3.00 P.M. and had been identified by the constable and Dafadar. The following ante-mortem injuries were found : (i) Five incised wounds parallel and close to each other, extending from right ear and temporal region up to angle of mouth and chin, six injury from 5” to 6” length and ½” to 1” in breadth with cut of maxilla mandifle and temporal bone. (ii) Incised wound in left side face, size 5” x 1” x cut of mandifle. (iii) Incised would on left side for head size 2.1/2” x 1” x cut of frontal bone. (iv) Incised wound on left side frontal region of head 1.1/2” of head. Injury no.3 size 3” x 1” x cut of frontal bone and dura-mater. (v) Incised wound on the back of head right side occipital region, size 3” x 1” x cut of bone and brain. (vi) Incised wound on right shoulder and scapular region, Size 5” x 3” x with complete cut of humeral head and scapula. (vii) Incised wound on right wrist, size 1” x ½” x cut of carpal bone. (viii) Incised wound on left hand size 2” x 1” x amputation of ring and little finger. (ix) Incised wound on right upper arm, size 1.1/2” x muscle deep. (x) Ten stab wounds on back of different sizes varying from 2” to 4” long 1/2” to 1” broad. Some of them were muscle and some chest deep. (xi) Stab wound in epigastrium size 1.1.2” x 1” x abdomen deep. Opinion (1) The injuries are ante-mortem in nature. (ix) Incised wound on right upper arm, size 1.1/2” x muscle deep. (x) Ten stab wounds on back of different sizes varying from 2” to 4” long 1/2” to 1” broad. Some of them were muscle and some chest deep. (xi) Stab wound in epigastrium size 1.1.2” x 1” x abdomen deep. Opinion (1) The injuries are ante-mortem in nature. (2) Cause of Death- Haemorrhage & shock following injuries to vital organ brain and lung. (3) Weapon- Injury nos. 1 to 9 sharp cutting weapons or substance like Garansa with long blade axe and Hasua with long blades Injury nos. 10 and 11 were caused by sharp pointed weapons. (4) Time since death was 12 to 24 hours. The post-mortem report has been marked as Exhibit 2. In his cross-examination, the doctor has stated that five incised parallel wounds are possible only when he injured remains lying in one and the same position. Injury no.10 was on the back. These injuries could have been caused only when the victim could have been lying face downwards. 8. P.W.1 has stated that the deceased was his younger brother. Siya Ram Paswan (P.W.2), Raja Ram Paswan (P.W.3) and Jay Ram (not examined) are also his own brothers. Shanti Devi (P.W.6) is the wife of the deceased Parsuram Paswan. Parsuram Paswan was a typist in the office of Additional Collector, Bhagalpur. They were living together. At the time of occurrence, there was a proceeding under Section 107 Cr.P.C. between the deceased and the accused. On 12.02.1982 at about 8.30 P.M., P.W.1, P.W.2, P.W.3, P.W.8, P.W.9 and the deceased Parsuram Paswan were sitting near the fire and were gossiping. The parents of P.W.1 were inside the house. Shanti Devi (P.W.6), the wife of the deceased was cooking. Bhinsa Churihara and Sita Ram Churihara (appellants) came to his Darwaja and requested Parsuram Paswan to participate in the Panchayati. After making query and answer, Parsuram Paswan went with them and remaining persons continued to sit near the fire. After 10 minutes, they heard the voice of Parsuram and the voice was also coming from the house of Sudin to kill him. The house of Sudin is at a distance of 20 yards from the house of the informant. P.W.1, P.W.2, P.W.6, P.W.5, P.W.8 and P.W.9 rushed there carrying lantern and torch. They saw the accused Bhudeo was armed with Bhala. The house of Sudin is at a distance of 20 yards from the house of the informant. P.W.1, P.W.2, P.W.6, P.W.5, P.W.8 and P.W.9 rushed there carrying lantern and torch. They saw the accused Bhudeo was armed with Bhala. They were pulling the dead body of Parsuram from the northern room of Sudin. On raising alarm by the witnesses, the co-villagers came there. Thereafter, the accused fled away. It has been further stated that the witnesses apprehended Bhajjan and Bhudeo Churihara. Blood was oozing out from the person of Parsuram. He was dead. The accused persons left the bloodstained Kulhari and Tengari. He has proved his written report (Ext.1). On the next day, the police officer came and seized the axe etc. In his cross-examination, he has stated that there is no house between the house of the informant and the accused Sudin. He has stated that Habibpur police out post is half mile west from the Bhagalpur Bonsi Road. He went to the police station in the night at about 9.30-10.00 P.M. with 10 persons. They did not take the two apprehended persons to the Habibpur out post. He has further stated that in the proceeding under Section 107, the deceased and the accused were the parties. He did not ask Parsuram not to go to the house of the accused in the night due to enmity. He has further stated that he does not know as to whether the deceased was an accused in the case for the offence under Section 376 of the I.P.C. He does not remember as to whether deceased was an accused for the offence of arson. He has admitted that Meera Devi, wife of the Bhinsa Churihara (P.W.15) has lodged a case of rape against the deceased for the same occurrence. He has also admitted that the I.O. has found blood on the bed in the room of Bhinsa. He has denied that he has concocted a case against the appellants. 9. P.W.2 has also supported the prosecution case as P.W.1. In paragraph 9, he has admitted that Bhudeo had dispute with the deceased. Bhudeo has also lodged a case. He has also admitted that the I.O. has found blood on the bed in the room of Bhinsa. He has denied that he has concocted a case against the appellants. 9. P.W.2 has also supported the prosecution case as P.W.1. In paragraph 9, he has admitted that Bhudeo had dispute with the deceased. Bhudeo has also lodged a case. He has stated that he does not know as to whether the daughter-in-law of Ghoghri Harizan has lodged a case of rape in the year 1978 against the deceased or not or whether any case of arson has been lodged against him or not. He has also stated that he does not know as to whether a proceeding under Section 107 Cr.P.C. was pending against the Parsuram (deceased) or not. He has also stated that he does not know as to whether any complain was made against the deceased in the Panchayati for committing rape. 10. P.W.3 has also supported the prosecution case as P.W.1. He has also admitted that none of the witnesses has asked Parsuram not to go to the Panchayati in the night. In paragraph 9, he has stated that the witnesses did not ask the accused not to drag the dead body of the deceased Parsuram. He has also stated that he has not heard the name of Tara Devi and Harni Devi, who were the victims of rape by the deceased Parsuram. 11. P.W.4 has also supported the prosecution case. He has stated that Bhudeo and Bhajjan were apprehended by the witnesses. Bhudeo was armed with spade and Kalicharan was armed with Kulhari. In his cross-examination in paragraph 6, he has stated that no one had gone to the place of occurrence except the members of his family. He has stated in paragraph 7 that 25-30 persons had assembled there he has named Kishori Paswan (P.W.12), Ramadhar Paswan (P.W.11), Suresh Modi and others, who have not been examined. Kamleshwar Paswan is his cousin brother. He was a Chaukidar at that time. He also came to the place of occurrence and he had also gone to the police out post with the informant. The apprehended persons were not handed over to the Chaukidar. In paragraph 8, he has stated that the dead body was in the courtyard of Sudin. Kamleshwar Paswan is his cousin brother. He was a Chaukidar at that time. He also came to the place of occurrence and he had also gone to the police out post with the informant. The apprehended persons were not handed over to the Chaukidar. In paragraph 8, he has stated that the dead body was in the courtyard of Sudin. He has stated that he does not remember as to whether he had made statement before the I.O. that Parsuram was taken in the Panchayati. He has denied the suggestion of the defence that the deceased was characterless and to hide his offence, the case has been lodged against the accused. 12. P.W.5 is the mother of the deceased. She has also supported the prosecution case. She has also stated that Sitaram is also called Khedna. In her cross-examination, she has admitted that 15-20 co-villagers came there at the place of occurrence. She does not remember the name of any one. She has stated that besides her sons, 3-4 persons had also apprehended the accused Bhudeo and Bhajjan. Singheshwar (P.W.8) and Ramswroop (P.W.9) had apprehended Bhajjan and Bhudeo, but P.W.8 and P.W.9 have not supported her version and they have been tendered. 13. P.W.6 is the wife of the deceased. She has stated that at the time of occurrence, she was cooking inside the house. Her husband and others were near the fire (Ghura) and her mother-in-law and father-in-law (P.W.4 and P.W.5) were also sitting by the side of the Ghura, but P.W.4 and P.W.5 have stated that they were inside the house. She has also stated that many villagers came at the place of occurrence, but she does not know the name of any one. 14. P.W.13 is the Investigating Officer. He has also registered Jagdishpur P.S. Case No.12 on 13.02.1982 after getting the fardbeyan (written report Ext.1) at 8.00 A.M. from the Habibpur police camp. He visited the place of occurrence and prepared the inquest report (Ext.4). He found bloodstained articles and prepared seizure list (Ext.3). He sent the dead body for postmortem house. He has also been cross-examined at length which has been dealt with later on. 15. The defence has examined five witnesses. They are namely, Kanhai Prasad Singh (D.W.1), Kaleshwar Pd. Rai (D.W.2), Thakur Prasad Singh (D.W.3), Bisundeo Singh (D.W.4) and Ramu Mandal (D.W.5). 16. He sent the dead body for postmortem house. He has also been cross-examined at length which has been dealt with later on. 15. The defence has examined five witnesses. They are namely, Kanhai Prasad Singh (D.W.1), Kaleshwar Pd. Rai (D.W.2), Thakur Prasad Singh (D.W.3), Bisundeo Singh (D.W.4) and Ramu Mandal (D.W.5). 16. D.W.1 has stated that in the night of occurrence, he did not go to the place of occurrence. On the next day at about 9.10 A.M., the police came to the place of occurrence. He went there. He saw that two daughter-in-laws, the wife of Bhinsa and Lakhan were weeping and the police officer was making query from them. Bhudeo and Bhajjan were called by the police officer and they were arrested, who are the accused in this case. 17. D.W.2 is the Sarpanch. He has stated that he knows Parsuram and Sudin. There was Panchayati in connection with Parsuram Paswan regarding the illicit relationship with the Tara Devi and Hatni Devi. Ghughli Harizan is the father of Sita Ram. There was also Panchayat relating to rape by Parsuram. In the Panchayati, the brother and father of Parsuram Paswan had also appeared and they had promised that Parsuram would not commit any misdeed. The wife of Lakhan and wife of Bhinsa were telling that the Parsuram had entered into their house for committing misdeed (rape). 18. D.W.3 is a retired inspector of police. He has proved the formal FIR (Ext.A) and the endorsement (Ext.B) and the charge-sheet (Ext.C) showing that Jagdishpur P.S. Case No.10 dated 8.11.1978 was lodged by Ghughali Harizan against the Parsuram for the offence under Sections 354 and 376/511 of the I.P.C. After investigation, charge-sheet was submitted against the deceased Parsuram Paswan. 19. D.W.4 has proved the fardbeyan (Ext. D) of Radhe Paswan against Parsuram Paswan and others for the offence punishable under Sections 147, 323, 337, 436 and 426 of the I.P.C. for which Jagdishpur P.S. Case No.50 dated 7.04.1981 was instituted. He has also proved a written report of Ghughali Harizan (Ext. E). 20. D.W.5 is a formal witness, who has proved the information slip for obtaining information regarding P.S. Case No.55/1982. The endorsement of it has been marked as Exts. F and F/1 and the details of information have been marked as Ext. G and the correction has been marked as Ext. H. 21. E). 20. D.W.5 is a formal witness, who has proved the information slip for obtaining information regarding P.S. Case No.55/1982. The endorsement of it has been marked as Exts. F and F/1 and the details of information have been marked as Ext. G and the correction has been marked as Ext. H. 21. After hearing the learned counsel for both the parties and on perusal of the record, it appears that in this case there is no eye witness to the occurrence. No one has seen assaulting the deceased. The prosecution witnesses have tried to establish that soon after the occurrence; they reached at the place of occurrence and saw the accused dragging the dead body of the deceased Parsuram Paswan. The prosecution witnesses 1 to 6 are the close relatives i.e. brothers, parents and wife of the deceased. Apparently, they are interested witnesses. They have admitted that on their raising alarm, several co-villagers 15-30 arrived at the place of occurrence, but none of them have been examined in this case. The witnesses who were near the fire (Ghura) as per the version of the prosecution. P.W.7, P.W.8, P.W.9 and P.W.12 have not supported the prosecution case and they have been tendered. No doubt, it is settled principle of law that the evidence of interested witnesses is not to be discarded only their evidence has to be scrutinized carefully. 22. On careful consideration of the prosecution evidence, we find that their evidence does not inspire confidence and as such, their evidence is not fit to be relied upon. On the other hand, the defence version is that the deceased was of loose character and there had been cases for committing rape and attempt to commit rape and setting fire in dwelling house and the accused have been falsely implicated in this case after his death. 23. Admittedly, according to the prosecution version, the witnesses saw the dead body of the Parsuram Paswan (deceased). The prosecution witnesses have stated that out of the accused, Bhajjan and Bhudeo were apprehended by the prosecution witnesses. It is also the case of the prosecution that in the night itself the informant and co-villagers 8-10 in number went to the Habibpur police out post but even the written report (Ext.1) h as not been witnessed to any one. The prosecution witnesses have stated that out of the accused, Bhajjan and Bhudeo were apprehended by the prosecution witnesses. It is also the case of the prosecution that in the night itself the informant and co-villagers 8-10 in number went to the Habibpur police out post but even the written report (Ext.1) h as not been witnessed to any one. Those two apprehended accused were not handed over to the police, rather, they were tied near the place of occurrence. 24. It appears from the evidence of P.W.13 (I.O.) that he had stated in paragraph 12 that he arrested Bhudeo and Bhajjan on the date of investigation (13.02.1982). He noticed their person and did not find any bloodstain on their cloth. On the same day, the other accused Kalicharan and Prabhu Dayal were arrested. There were also no bloodstains on their cloth. The house of these four accused were also searched and no incriminating articles were found. He has not stated that accused Bhudeo and Bhajan were found tied. 25. On perusal of the evidence of the prosecution witnesses and the evidence of the I.O. (P.W.13), it appears that there is vital difference between the statement before the police and the statement made before the court. The medical evidence also does not support the version of the prosecution evidence. As noticed earlier, the doctor has clearly stated that the five incised parallel injuries are possible only when the injured remains lying in one and the same position and injury no.10 were on the back. These injuries could have been caused only when the victim would have been lying face downwards. The prosecution has not been able to prove the manner of occurrence. 26. Considering the facts and circumstances stated above, it appears that the prosecution has not been able to substantiate its case beyond reasonable doubt. All the appellants are entitled to get the benefit of doubt. The prosecution case fails. The appellants are acquitted. They are also discharged from the liability of their bail bonds. 27. The judgment of the conviction and sentence is not fit to be sustained. It is set aside. In the result, the appeal is allowed. 28. Let a copy of the first page and the last page of the judgment be given to Mr. The appellants are acquitted. They are also discharged from the liability of their bail bonds. 27. The judgment of the conviction and sentence is not fit to be sustained. It is set aside. In the result, the appeal is allowed. 28. Let a copy of the first page and the last page of the judgment be given to Mr. Dhaneshwar Prasad Gupta, the learned Amicus Curiae so that he may be able to get the prescribed fee from the Patna High Court Legal Service Committee. Appeal allowed.