JUDGMENT (ORAL) Aditya Kumar Trivedi, J. Appellants Harendra Sah and Laxmi Kant Jha who have been found guilty for an offence punishable under Sections 396, while appellant Harendra Sah has further been convicted under Section 412 of the IPC vide judgment dated 27.06.1990 and each of them have been sentenced to undergo imprisonment for life under Section 396 of the IPC having no separate sentence under Section 412 of the IPC by the learned Session Judge, Muzaffarpur in Sessions Trial No. 22/85 have independently preferred these two appeals. 2. With the consent of the parties both the above referred criminal appeals have been heard together and are being disposed of by a common judgment. 3. Briefly stated, the case of the prosecution as emerges out on the basis of Fardbeyan (Ext-5) given by Sheo Kumar Jha (PW 7) on 28.09.1983 at 1.30 a.m. at his house lying at village-Siho is that in the intervening night at about 10.45 p.m. the unknown dacoits armed variously raided his house and gave fatal assault to his father Kameshwar Jha as well as also assaulted Indra Kumar Jha, Digvijay Nath Jha. Ram Kishore Jha including he himself and then thereafter some of the dacoits made house trespass and looted away their belongings. He further claimed identification of the dacoits whom he along with other family members had seen in the lantern light as well as in the light of torches. He had also mentioned the fact that some of the dacoits had concealed their faces by galmochha while some of them had painted their faces. After having disclosure by one of the dacoits that they have finished the work at darwaza, all of them escaped. 4. On the basis of the aforesaid fardbeyan, a substantive case was instituted followed with investigation. After completing the investigation charge-sheet was submitted against so many persons out- of whom case of one of the accused Rajendra was stayed by the High Court and on account thereof his trial was separated. Ultimately, the trial proceeded against eleven accused persons out of whom nine have already been acquitted by the trial Court while recording conviction of guilt against these two appellants only the subject matter of instant appeals. 5. Ultimately, the trial proceeded against eleven accused persons out of whom nine have already been acquitted by the trial Court while recording conviction of guilt against these two appellants only the subject matter of instant appeals. 5. The defence case as is evident from mode of cross-examination as well as statement recorded under Section 313 of the Cr PC of false implication as well as wrong identification of the appellants. 6. While challenging the finding recorded by the learned trial Court, it has been submitted at bar that when the accused who were named by the witnesses during course of trial as well as were identified during course of investigation as well as corroborated by the witnesses at the stage of their evidence had already been let off on the ground of having the prosecution version to be unreliable, untrustworthy, then in that event the learned trial Court should have given similar treatment to the appellants also. It has further been submitted that both the appellants are not named in the fardbeyan nor they have got any direct grievances against the family of the informant. It has further been submitted that they have been convicted only on the basis of identification of single PW Sheo Kumar Jha without having any corroboration. The recovery of stolen article is of no consequence because of the fact that they are subject to availability in the open market as well as the learned Magistrate while conducting the TIP of the articles had not taken necessary precautions so required therefor. Similar is the contention so far plea of the appellant Harendra Sah is concerned and further submitted that taking into account the evidence of Investigating Authority. it is apparent that they have been falsely roped in just to justify their apprehension otherwise the recovery of so alleged articles was from renowned criminal Pankaj Sharan and the same was put on TIP and was identified by the witnesses and that is the reason behind inconsistency appearing from the evidence of PW 14 as well as PW 15. it is apparent that they have been falsely roped in just to justify their apprehension otherwise the recovery of so alleged articles was from renowned criminal Pankaj Sharan and the same was put on TIP and was identified by the witnesses and that is the reason behind inconsistency appearing from the evidence of PW 14 as well as PW 15. So submitted that taking into account the totality of the event neither a case under Section 396, IPC nor a case under Section 412 of the IPC is made out against both the appellants further elaborating his submission, the learned counsel for the appellants submitted that when the evidences of the prosecution witnesses are taken into account, it gives a clear cut picture of to be a case of murder instead of having it a case of dacoity with murder because of the fact that in the background of land dispute in between Awadhesh and one Mahanth, the Mahanth had threatened the deceased Kameshwar Jha at so many occasions previously and during said period, a meeting was held at the house of Rajendra where it was resolved to commit murder of Kamleshwar Jha and for that necessary help was to be taken from notorious criminals and for that the money was to be accumulated. Just two or three days after the aforesaid meeting the occurrence as alleged had taken place. 7. It has further been submitted that having minute observation of prosecution evidence, it is apparent that the miscreants, after arrival at the house of informant gone in search of Kameshwar Jha caught hold him from the place where he was sleeping, was taken to darwaza where other injured were playing cards and thereafter Kameshwar Jha was brutally assaulted by chhura and other weapons resulting his instantaneous death. In likewise manner, other injured were assaulted. So the prime motto as per evidence was not to commit dacoity rather to commit murder and the subsequent event as narrated simply suggest theft in a dwelling house which no way justifies application of Section 396 as well as 412 of the IPC. 8. Apart from this, it has also been submitted that prosecution right from initial version was not at all confident over their own conduct. 8. Apart from this, it has also been submitted that prosecution right from initial version was not at all confident over their own conduct. The ultimate result distrusting the investigating authority, filing of protest petition by which given a new twist to whole prosecution case and from this stage uptil trial the prosecution witnesses changed their initial version on account of which there happens to be presence of material contradiction which is bound to adversely affect upon the prospect of the prosecution case. 9. It has also been submitted that none of the inmates of the house has been examined including that of one of the injured coupled with the neighbours as web as independent co-villagers. There happens to be no explanation on behalf of prosecution for their non-examination. 10. Then it has been submitted that even taking into account the nature of case suggesting application of Section 302 of the IPC read with Section 34 or 149. IPC and even accepting the plea that non-framing of charge under the aforesaid section was no way prejudicial to the proceeding will also go in futile because of the fact that the main accused. Vishwanath and Pramod, against whom there happens to be direct allegation that they were assailant of deceased Kameshwar Jha, having been acquitted by the trial Court itself will not justify the appellants to be convicted for murder with the aid of either of Sections i.e.. 34. IPC as web as 149. IPC. So the finding recorded by learned trial Court happens to be misconceived as well as non-appreciation of the evidence. Hence, it is fit to be set aside. 11. On the other hand, learned APP while supporting the judgment of conviction and sentences submitted that true it is that during course of evidence, a new story has been introduced in addition to the initial version but that has got relevancy which the witnesses have proved. It was motive for commission of occurrence. Had there been only the villagers being participant then in that event, it must have been a case of murder but borrowing criminal like the appellants along with others was suggestive of the fact that not only death of Kameshwar Jha was intended rather dacoity was intended and during course thereof Kameshwar Jha was murdered hence the finding of the learned lower Court on this score happens to be consistent with the ocular evidence. 12. 12. The presence of appellants was traced out during course of investigation and on account thereof both the appellants were apprehended and from whose possession the booty as per seizure list was recovered which was put on TIP and properly identified by the witnesses. It is also apparent from the T.I. chart that witnesses had also identified the appellants and on account thereof conviction of the appellant under Section 396 as well as Section 412 of the IPC happens to be just legal proper and fit to be confirmed. 13. Before coming to discuss the merit of the case on a cursory perusal of the lower Court record, it is apparent that altogether l5 PWs have been examined on behalf of prosecution out of whom PW 1 is Md. Zamil. PW 2 is Dr. Manoranjan Kr. Srivastava. PW 3 is Taranand Jha. PW 4 is lndra Kumar Jha. PW 5 is Lalan Kumar Jha. PW 6 is Digvijay Nath, Jha, PW 7 is Shiv Kumar Jha, PW S is Ram Kumar Jha, PW 9 is Shashi Bhushan Jha, PW 10 is Vishwanath Prasad. PW 11 is Ratnanand Jha. PW l2 Raza Ahmad Hussainee. PW l3 Niranjan Pd. Nayak, PW l4 is Krishna Prasad Singh and PW 15 is Balkaran Singh. 14. Side by side the prosecution has also exhibited Ext-1 series, signature of witnesses over respective document. Ext-2 series, statement recorded under Section l64 of the Cr PC. Ext-3, post-mortem report, Ext-4 seizure list. Ext-5, fardbeyan. Ext-6. protest petition. Ext-7, power, Ext-8, respective T.I. Chart, Ext-9 series, respective injury report prepared by doctor. Ext - 10 series, respective seizure list. Ext 11, Formal First Information Report Ext- 12 series, respective injury report prepared by investigating authority. The prosecution had also exhibited material exhibit. Ext-(i) series, Radio/Transistor, Ext-(ii) series, Torch. Ext-(iii). chhura. Ext-(iv), stove. l5. The defence has also led examination of five DWs out of whom OW-1. Rajendra Prasad Sinha. DW-2. Alok Kumar Singh. DW-3. Dund Bahadur Thakur. DW4. Uma Shankar Rai. DW-5, Ram Chandar Prasad. l6. For getting the argument raised on behalf of rival parties properly appreciated, first of all. the matter in hand is to be considered and decided to the extent whether the facts and circumstances of the ease justify application of Section 396 of the IPC or attract application of Section 302 of the IPC. DW-5, Ram Chandar Prasad. l6. For getting the argument raised on behalf of rival parties properly appreciated, first of all. the matter in hand is to be considered and decided to the extent whether the facts and circumstances of the ease justify application of Section 396 of the IPC or attract application of Section 302 of the IPC. This crucial aspect has arisen on account of twist given by the prosecution witnesses during course of conduction of trial. Although, basic ingredients of both the two offences having culpable homicide perceived in its womb, the subsequent appreciation and application differs from each other as well as the procedure of sentencing because 396. IPC at a glance appears to be more ghastly than Section 302 of the IPC. 17. As per evidence of PW 15, the part I.O. he had arrived at the place of occurrence on being informed by the Station Master. Siho regarding commission of dacoity. Virtually, that information gave a germane to the present scenario because of the fact that this PW 15 proceeded from Sakra P.S, with pre-occupied mind based upon, the information given by Station Master. Siho that dacoily was going on at village. Siho. The initial prosecution version of PW 7. the fardbeyan (Ext -5) gave detailed pasteurization of the occurrence but the reason best known to the prosecution it could not stick even at the investigation stage by filing protest petition Ext-6 wherein the informant (PW 7) had categorically stated that the police had omitted to scribe what he had narrated before it and inserted those things which were never spoken by him. PW 7 during course of his examination-in-chief had again reiterated the same version though half heartedly supported the narration of Ext-5.fardbeyan and again stated that the police official had left out to scribe the details whatever he had narrated and mentioned those facts which were never uttered by him, Criminal jurisprudence mandates the prosecution to prove its case beyond all reasonable doubt. Whenever a duty is cast and if the aforesaid duty is found to be not properly discharged then in that event a doubt is cast over genuineness of prosecution version which ultimately lean in favour of accused at least under the banner of "benefit of doubt", Therefore, there happens to be requirement, obligation which should be properly discharged by the prosecution during conduction of trial by placing cogent, reliable evidence over which one could infer that none other than the accused are responsible for commission of the crime as Dashed during course of trial. That means to say basically, the prosecution is under obligation to place the evidence which one be found sufficient in getting its case proved properly. During course of appreciation of the evidence, the inconsistency the omission, the contradiction-, embellishment if any, found to be adverse to the prosecution case in case it extent going to root of the prosecution version, otherwise it to be ignored as held by a catena of judicial pronouncement and for that purpose, the Court is duty bound to separate chaff from grain. The wit- nesses are eyes and ears of the Court and their testimonies should not be discarded in a casual manner unless and until the infirmities on its face is found to be profaned. 18. Having the aforesaid basic requirement in hand when the evidence of PW 7. the informant has been gone through, it is apparent that he had stood himself to be an eye-witness of occurrence. But the evidence in its entirety did not inspire and support the basic version which he had given by way of Ext-5, fardbeyan. True it is that he had narrated the event whereunder the accused persons took away the cash, ornaments, torch and transistor but the aforesaid event happens to be after effect of main occurrence wherein the deceased Kameshwar Jha was done to death. If the version of the PW 7 is relied upon in its entirety then in such circumstances one could definitely infer the intention of the culprit which was not at all to commit dacoity rather to commit murder of Kameshwar Jha in the background of the fact that he was defending the interest of Jogendra Misra who was on litigating terms with Mahanth Shyam Sunder Das. This PW 7 in para-3 of his examination-in-chief had categorically stated that Mahanth Shyam Sunder Das had threatened him (deceased) of dire consequences. He had further divulged that a meeting was convened at the place of Rajendra Singh wherein Rajendra Singh and other co-accused including Shyam Sunder Das have resolved to commit murder of deceased Kameshwar Jha with the assistance of outsiders and for that they had collected money not only PW 7 rather each and every material PW has flashed this aspect and just after spending a day or two, the occurrence so alleged has taken place. The prosecution intended to take into account the aforesaid event as a genesis of occurrence and when the same is accepted then in such circumstances presence of culprit at the place of PW 7 was for commission of murder of Kameshwar Jha and not for committing dacoity as nudged by prosecution. 19. This aspect is further found supported' with the version of the material witness that after having assemblage of culprits at the darwaja of informant, some of them including Vishwanath and Pramod (since acquitted) have gone to the marai where deceased Kameshwar Jha was sleeping who was dragged from there and was brutally assaulted by means of chhura at his darwaja. The prosecution had further divulged the fact over identification of accused who happens to be the main assailant by stating that deceased Kameshwar Jha had stated that Vishwanath', why are you inflicting chhura blow? 'I have not done any wrong with you'. Similarly, 'Pramod', why are assaulting? ‘I have not done any wrong with you'. This part again shows that before the occurrence of dacoity so alleged by the prosecution, the accused persons moved, gone to apprehend Kameshwar Jha subjected him to brutal assault which ultimately proved fatal as well as also assaulted other PWs. Till assault over the person of Kameshwar, there was no attempt on the .part of any of the accused to loot or coerce the prosecution party putting under threat of his life to hand over any property, a basic ingredients of dacoity which could attract application of Section 395 of the IPC, in case murder is committed during said course, That happens to be basic ingredient to attract dacoity as defined under Section 391, IPC. 20. 20. Another aspect adverse to the prosecution case is itself evident from the examination-in-chief of PW 7, the informant himself coupled with Ext-5, the protest petition. The informant had categorically stated that the police official, PW 15 had written down the facts which he never disclosed side by side also omitted to scribe the facts which he had stated before him but subtly he eschewed those relevant disclosures even during trial. The dubious character of the prosecution is further found on having mum while examining I.O. on this score. Be that as it may, such allegation is found sufficient to discredit the credibility of the First Information Report (fardbeyan) and on account thereof found to be severely jolted. It has also kept the Court in dark as to how much contents thereof should be taken into consideration and as to how much should be rejected. When the informant had himself challenged the authenticity of his initial version then in that event it appears to be difficult to accept and rely. 21. Now coming to the other aspect relating to removing of the articles so alleged by the prosecution during commission of crime, no list was furnished by the prosecution during course of investigation save and except detailing the fact that torch, cash, ornament radio were taken away by the dacoits. No details of those articles were given in the fardbeyan. As per Ext -10 two band old Murphy• radio having written 25087 and one torch (two cell, made in China) were shown to be recovered from possession of appellant, Laxmi Kant Jha. From Ext-8. T.I. Chart, it is evident that two band Murphy radio was not put on TIP. While there happens to be some sort, of confusion with regard to two cell Chinese torch as the Ext-8 suggests two cell torch Chinese of Tiger head brand. From the possession of appellant, Harendra Sah three items have been shown, 1, Shalimar radio 3 Band (Santosh). 2. one old Prabhat stove and 3 one two cell Eveready Torch having mark of 'Alta' on its back. Ext-8 suggests putting of Prabhat stove, translator of Santosh (Shalimar) and one torch having put on TIP and were identified by witness, Ramkumar Jha. PW 8. 22. The first anomaly on this score happens to be apparent when evidence of PW 14 is gone through. Ext-8 suggests putting of Prabhat stove, translator of Santosh (Shalimar) and one torch having put on TIP and were identified by witness, Ramkumar Jha. PW 8. 22. The first anomaly on this score happens to be apparent when evidence of PW 14 is gone through. From para-6 of his cross-examination, it is evident that in the night of 30.09.83 house of Pankaj Sharan was raided and during course thereof radio, torch. stove, transistor. Country-made pistol were recovered for which Town P.S. ease No. 468/83 was registered. So many persons were also arrested who were also charge-sheeted in this case. In the same paragraph he has stated that articles which were seized from the house of Pankaj Sharan was not put on TIP in relation to the present case while at other occasion at para-16 has admitted that those articles were put on TIP. In paragra ph-17, he has further admitted that he has not seen any mark of identification over the articles put on TIP. He has further admitted that there was removal of only one radio while seizure was of three radios. Further. it is evident from Ext-8 that identification of articles which were put on TIP, identified by witnesses happens to be outcome of collusiveness amongst the prosecution party because of the fact that from the seizure list itself as referred above the mark of identification over articles were present since before which purposely was concealed at the time of conduction of TIP of the articles. On this score the evidence of PW 11 has not given any additional support to the prosecution so far manner of identification of the articles are concerned. Hence the manner wherein TIP of article was conducted and the allegation of the prosecution as well as claiming of witness Ram Kumar Jha to have identified those articles during course of TIP cannot be found to be above board. 23. At the present stage one alternative argument has been raised on behalf of learned APP after putting reliance upon (2012) 10 SCC 433 . AIR 1956 SC 116 , AIR 1957 SC 320 that in spite of having absence of framing of charge under Section 302 of the IPC. 23. At the present stage one alternative argument has been raised on behalf of learned APP after putting reliance upon (2012) 10 SCC 433 . AIR 1956 SC 116 , AIR 1957 SC 320 that in spite of having absence of framing of charge under Section 302 of the IPC. conviction can be altered against appellant from 396 to 302 of the IPC and the same happens to be permissible in the eye of law on account of possessing common germane of culpable homicide amounting to murder. So far principle is concerned, we do concede and there are catena of decisions on this very score affirming the same. However, when the fact of the case in hand is taken it is found to be suffering from some sort of infirmity on account of which the aforesaid principle cannot be held to be applicable. From the evidence of all the material witnesses including that those injured, it is apparent that Vishwanath and Pramod were the assailants who have had already been acquitted by the learned trial Court. When consistent evidence of the witnesses on that very score was brushed aside by the learned trial Court itself leading to acquittal of main accused then his associates with the aid of Section 34 of the IPC could not be convicted nor they could be dragged with the aid of Section 149 of the IPC. Therefore, the status of these two appellants on account of acquitted of main accused, Vishwanath and Pram ad slipped to more safer side going out of the grip of the prosecution even attracting the offence punishable under Section 302 of the IPC coming out from the prosecution version. 24. Thus, after- giving our anxious look and careful scrutiny of the evidence available on the record we are inclined to allow these two appeals. Accordingly, the judgment impugned is set aside. The two appeals are allowed. 25. Both the appellants of these two appeals are on bail, hence they are discharged from the liability of bail bonds. Appeals allowed.