ORDER Appellants Sunil Kumar Yadav and Pawan Kumar Yadav who have been found guilty for an offence punishable under Section 302 of the I.P.C. vide judgment dated 6.7.1990 passed by Sessions Judge, Saharsa in Sessions Trial No.174/87 directing to undergo R.I. for life, have filed instant appeal. 2. Urro Devi, P.W.9 wife of deceased gave her fardbeyan on 2.6.1987 at 04:00 A.M. alleging inter alia that her husband has three brothers, namely, her husband Anil Yadav, Sunil Yadav and Pawan Yadav. About two months ago her father-in-law, Nand Kishore Yadav had separated him while he remained joint with her two brother-in-law, Sunil Kumar Yadav and Pawan Kumar Yadav. Her brother-in-law was not giving the land according to share of her husband and in the aforesaid background, on the preceding night at about 09:30 P.M. her husband Anil Yadav had demanded his share from her father-in-law and brother-in-law which was declined by Sunil Kumar Yadav resulting an altercation amongst them followed with an assault by Sunil Kumar Tadav with iron pipe over head of her husband. Her husband fell down after sustaining injury over his head. Then Pawan Kumar repeatedly assaulted him with lathi over his chest as well as leg. On hue and cry raised by her, Chandeshwari Yadav, Bauku Yadav, Awadh Yadav, Chote Lal Yadav came and witnessed the occurrence. Her husband was lifted to hospital but during midst thereof he succumbed to his injury. Further disclosed that the occurrence was taken place near Darwaja of Chandeshwari Yadav. 3. On the basis of the aforesaid fardbeyan, Bakhtiyarpur P.S. Case No.43 /1987 was registered under Section 302 of the I.P.C. whereunder charge sheet was also submitted after completion of investigation followed with taking of cognizance. Because of the fact that offence happens to be exclusively triable by the court of Session, hence case was committed and tried which ultimately resulted in conviction of the accused subject to instant appeal. 4. The defence case as is evident from cross-examination as well as statement recorded under Section 313 of the Cr.P.C. is of total denial of occurrence followed with false implication in the background of the family feud persisting amongst the parties. 4. The defence case as is evident from cross-examination as well as statement recorded under Section 313 of the Cr.P.C. is of total denial of occurrence followed with false implication in the background of the family feud persisting amongst the parties. Though not expressly raised but during course of argument it has been submitted that in the background of an affidavit sworn by the informant during course of an investigation suggest the matter having been amicably settled amongst them and further putting stress over the contents of the affidavit it has been submitted that informant did not claim herself to be an eye witness to occurrence. Also exhibited affidavit through D.W.1. 5. While assailing the judgment of conviction and sentence, it has been submitted on behalf of appellant that save and except P.W.9, the informant, none had claimed to be an witness to occurrence. Therefore, in worst case this case happens to be a case of single identification. It has further been submitted that after going through the evidence of P.W.9, it is crystal clear that she had herself erased her status to be an eye witness to occurrence. Further submitted that there happens to be inconsistency over the place of occurrence. With regard to evidence of I.O., it has been submitted that the I.O. had not properly investigated the case nor had taken pain to see the house of the informant which could have divulged the fact that whether informant was in a position to witness the occurrence from her house that too at 09:30 P.M. Furthermore, it has been submitted that there happens to be no source of identification and therefore pointing out these two appellants as an assailant of deceased happens to be nothing more than an illusion. So, the cumulative effect happens to be that virtually instant case happens to be a case of no evidence. 6. At the other hand the learned Additional Public Prosecutor while sticking with the finding recorded by the learned lower court has submitted that as per Section 134 of the Evidence Act the numerical of witnesses is not at all relevant for the purpose of having the fact proved. 6. At the other hand the learned Additional Public Prosecutor while sticking with the finding recorded by the learned lower court has submitted that as per Section 134 of the Evidence Act the numerical of witnesses is not at all relevant for the purpose of having the fact proved. From the evidence of P.W.9, it is evident that her evidence happens to be credible and inspires confidence not only to the extent of over manner of occurrence, rather over identifying the appellants as an assailant because of the fact that these appellants are none else than her own family members. Not only this, it has further been submitted that the occurrence took place in continuance of an altercation going on in between these appellants with deceased and so there was no question of mistaken identification. With regard to conduct of other witnesses it has been submitted that they happen to be family members and on account thereof they had chosen to remain silent without intending to lean this side or that side as a result of which they were declared hostile. Also pleaded that, postmortem report suggest and supports the manner of occurrence. 7. Before coming to scrutinize the evidence having been adduced during course of trial on behalf of respective parties, it looks better to have a look over those materials. On behalf of prosecution altogether nine P.Ws. have been examined out of whom P.W.1 is Dr. J. Rahman, who had conducted postmortem over the dead body of deceased, P.W.2 happens to be Dharamraj Upadhaya, the constable who had carried the deceased to hospital, P.W.3 is Arjun Paswan, hearsay witnesss, P.W.4 is Chhote Lal Yadav, FIR as well as inquest witness and been declared hostile by the prosecution on material point. P.W.5, Awadh Yadav happens to be uncle of deceased as well as appellants and been declared hostile and same status happens to be of P.W.6 and P.W.7. P.W.8 is I.O., Pabhu Dayal Singh while P.W.9 is informant Urro Devi. Side by side also exhibited exhibit 1 postmortem report, exhibit 2 chalan, exhibit 3 series signature, over fardbeyan, exhibit 4 inquest report, exhibit 5 seizure list, exhibit 6 fardbeyan and exhibit 7 the formal FIR. Defence had also examined DW 1, Randhir Kumar Sinha who had exhibited affidavit alleged to be sworn by P.W.9, informant and been exhibited as exhibit-A. 8. Defence had also examined DW 1, Randhir Kumar Sinha who had exhibited affidavit alleged to be sworn by P.W.9, informant and been exhibited as exhibit-A. 8. Now coming to the evidences of the witnesses, P.W.2, P.W.4, P.W.5, P.W.6 and P.W.7 need no detailed scrutiny on the score that either they are not on material point or they have not supported the case of the prosecution on merit. 9. P.W.3 is the witness who had deposed during examination-in-chief that when he came at the Darwaja of Chandeshwari Yadav, he found deceased Anil Yadav in an injured condition. There was injury over his head and blood oozed out. His wife was weeping. On query he had disclosed that Sunil Yadav and Pawan Yadav had assaulted him with iron pipe as well as lathi respectively. At that very time Chandeshwari Yadav and Awadh Yadav (P.W.5 and 6 respectively) were present. Though during cross-examination aforesaid theme has not been challenged in its right prospective but his evidence did not expose him as a hearsay witness because of the fact that P.W.9 during course of her examination had not corroborated the same. For want of such disclosure at the end of P.W.9 virtually kept P.W.3 from the category of hearsay witness. 10. Before coming to analyse the evidence of P.W.9, the evidence of doctor has to be seen. He had conducted postmortem over the dead body of deceased on 2.6.1987 at 04:00 P.M. and had found following ante mortem injury: – (i) Bruise front of right thigh on lower part 3” x 1”. (ii) Bruise 3” x 1” on left chest. (iii) Lacerated wound 3” x 1 ½” bone deep over scalp 3” above forehead. On dissection following ante mortem injuries were found: – (1) Fracture of vault of skull after removal of bone, meringes lacerated and cover with blood over left hemisphere. Brain matter was coming out of the torn meringes. 11. In the opinion of doctor all the aforesaid injuries were caused by hard and blunt substance and cause of death happened to be shock and hemorrhage caused by injury no.3. More particularly, injury no.3 had been found sufficient to cause death. Time elapsed since death was within 6 to 36 hours. So from the finding of the doctor the manner of assault made over the person of deceased is found to be corroborated. 12. More particularly, injury no.3 had been found sufficient to cause death. Time elapsed since death was within 6 to 36 hours. So from the finding of the doctor the manner of assault made over the person of deceased is found to be corroborated. 12. P.W.8 happens to be the I.O. He had said that on 2.6.1987 he had recorded fardbeyan of Urro Devi which was read over and finding it correct she had put her LTI on the basis of which case was registered. He took further statement of informant. He found dead body of Anil Yadav kept at the Baithka of Bauku Yadav. Accordingly, he prepared inquest report in carbon process. Also prepared dead body chalan and got the dead body submitted for postmortem to hospital. He had also conducted raid to apprehend accused persons who were found missing. He recovered one iron pipe and for that seizure list was prepared in presence of witnesses. He had inspected the place of occurrence which happens to be Bathan of Chandeshwari Yadav lying adjacent east to his house. About 38 hands thereof, Bakhtiyarpur Bazar pitch road lies. He took statement of the witnesses and concluded investigation as also had submitted charge sheet. In para-7 of his cross-examination he had categorically stated that the house of deceased was not along with the accused and other witnesses. He further disclosed that he had not seen the house of deceased. He further accepted that he had not mentioned in the case diary whether deceased was living along with the accused persons or not. Further he disclosed that he had not found blood stain over the iron pipe. 13. P.W.9 happens to be the informant. She had deposed that her husband was elder brother while accused are younger brothers. His father-in-law had separated her husband and since thereafter her husband was residing separately while her brother-in-laws remained joint with her father-in-law. Because of the fact that her father-in-law had not partitioned the property according to share and for that her husband was demanding his proper share not only in the landed property but also from the earning of the jeep and in the aforesaid background, there was an altercation and during course thereof Sunil had given iron pipe blow over his head causing injury thereupon. After falling over earth, Pawan gave lathi blow over his chest and below knee. After falling over earth, Pawan gave lathi blow over his chest and below knee. While people were carrying her husband to hospital he died. During cross-examination at para-3 she had specifically disclosed that the occurrence is about 8 or 10 P.M. and at that very time she was inside her house and after commission of the occurrence, she came out on alarm. 14. Thus, after having close scrutiny of evidence of P.W.8 the I.O. and P.W.9 the informant it is evident that none of them had disclosed the exact location of house wherein deceased along with P.W.9 was residing. This concealment has purposely been made by them to have the status of P.W.9 as an eye witness to occurrence which P.W.9 ought not, on account of occurrence having taken place in between 8 to 10 P.M. There happens to be no source of light. From evidence of P.W.8 it is evident that there happens to be no concrete objective finding over the place of occurrence. Though in FIR the informant had pointed out the place of occurrence near her old house, adjacent to Darwaja of Chandeshwari Yadav but during course of her evidence she had left out. From her cross-examination, apart from others she had herself volunteered that she came out from her Aagan (courtyard) after on an alarm raised after the occurrence. Therefore, unless and until she had an occasion to see the occurrence from her Aagan, this part of cross examination is bound to ruin her status as an eye-witness to occurrence. Furthermore, there happens to be total lack on the part of the prosecution to show her house lies adjacent to the P.O. enabling her to witness the occurrence and thus she cannot be accepted as an eye witness to occurrence. 15. Now coming to evidence of D.W.1 in consonance with the Exhibit A, the same is not only inadmissible in the eye of law rather happens to be impermissible as has been held by the Hon’ble Apex Court as reported in 2002 Cri.L.J. page 2527 wherein at para-11 it has been held: – “11. The defence side examined DW-1, a Notary Public who gave evidence to the effect that PW-1 to PW10 had visited his office and sworn to affidavits, the contents of which were read out by him to these witnesses and that those affidavits were filed before the Sessions Court. The defence side examined DW-1, a Notary Public who gave evidence to the effect that PW-1 to PW10 had visited his office and sworn to affidavits, the contents of which were read out by him to these witnesses and that those affidavits were filed before the Sessions Court. DW-2 was a Municipal Councillor, who claimed to have identified these witnesses before DW-1. DW-3 is a finger print expert who was examined to prove the thumb impression of these witnesses in the various affidavits filed before the Court. In these affidavits, PW-1 to PW-10 had stated that they did not see the occurrence. However, when confronted with the affidavits, these witnesses denied them and chose to depose before the court. The practice adopted by the defence side in getting the affidavits of these witnesses in advance is to be deprecated. That, in a way, amounts to an attempt aimed at dissuading the witnesses from speaking truth before the Court. The trial Judge as well as the High Court rightly rejected the defence contention. These witnesses appear to be illiterate persons. Their so-called affidavits must have been either cooked-up or obtained by playing a fraud on them. This type of interference in the criminal justice shall not be encouraged and is to be viewed seriously.” The same view has also been reiterated as reported in 2008 Cri.L.J. page 382 and the relevant para happens to be para-15. 16. Thus, after analyzing and crystallizing the evidence adduced on behalf of prosecution we are of the view that the prosecution has not been able to substantiate its case beyond reasonable doubt. The manner of occurrence, the time of occurrence and the conduct of prosecution witnesses at least keep the appellants to avail the benefit of doubt. Consequent thereupon the finding of guilt and sentence recorded by learned lower court is set aside. Hence both the appellants, namely, Sunil Kumar Yadav and Pawan Kumar Yadav are acquitted. Thus, appeal is allowed. Both the appellants are on bail hence are discharged from its liability for.