JUDGMENT (Per: HONOURABLE MR.JUSTICE SHYAM KISHORE SHARMA) 1. The aforesaid four appellants are aggrieved with the judgment of conviction and order of sentence dated 17th September, 1990 passed by learned Sessions Judge, Darbhanga in Sessions Trial No. 77 of 1989 convicting the appellants under Sections 302/34 and 201 of the Indian Penal Code and sentencing each of them to undergo imprisonment for life under Section 302/34 of the Indian Penal Code and five years rigorous imprisonment under Section 201 of the Indian Penal Code. The sentences were ordered to run concurrently. 2. Md. Kalam (P.W.10) gave his fardbeyan (Ext.3) before the Officer-in-charge, Sadar Police Station on 08.8.1988 at 11.15 P.M. alleging, inter alia, that while he was sitting with his villager Md. Atibul (P.W.7) at the shop of Md. Mokim (P.W.3) in the evening of 04.08.1988, his younger brother Md. Salam (deceased) and all the four appellants named above came and proceeded towards northern side through the ridge going towards village Sonaki. The deceased did not return even after two hours, then the informant along with his mother Salima Khatoon (P.W.6) made query from the accused persons who told that the deceased Md. Salam had gone to ease. It was also told by the villagers namely, Md. Suleman (P.W.2), Md. Kasim (P.W.5), Md. Idris @ Faudar (not examined) that they have seen Md. Salam going with the accused persons. When Md. Salam did not return in the night then in the next morning, further query was made from the accused persons who told that Md. Salam had gone to Calcutta. While the informant suspected foul, he started search of his brother. At about 3.00 P.M. on 08.08.1988 the informant came to know regarding lying of a corpse in the ditch of Mohania Chaur whose hands are visible. It was the informant and many villagers including Md. Yunus (P.W.4), Md. Suleman (P.W.2) and Md. Hussain (not examined) were there. The informant suspected that the dead body might be of his brother, he entered inside the ditch and took out the corpse which was tied with a fixed bamboo pole by means of ropes. The ropes were untied and mutilated dead body came out. As the skin had peeled off, he was identified with the assistance of the clothes which he was wearing on the date of his vanishing i.e. 04.08.1988. The ropes were untied and mutilated dead body came out. As the skin had peeled off, he was identified with the assistance of the clothes which he was wearing on the date of his vanishing i.e. 04.08.1988. The motive of the occurrence as detailed in the fardbeyan was that one year ago accused Md. Mofid, Sharfuddin and Abdul Razzak had tried to outrage the modesty of his bhagini Rahmat Khatoon. It was complained which resulted into village Panchayati in which they were imposed fine. Since then the accused persons were threatening the informant and his family members. Another motive was that 20 days prior to the occurrence, women of informant’s side and that of the accused persons had quarreled between them. Therefore, it was suspected that Md. Salam was killed by the accused persons. The fardbeyan was recorded on 08.08.1988 at 11.15 P.M. at the Chakki Mill of Md. Hussain (not examined) of his village by Sri D.N.Singh (P.W.11), Officer-in-charge, Sadar Police Station, Darbhanga. Md. Nemattullah (not examined) was the attesting witness of the fardbeyan. The fardbeyan resulted into the formal F.I.R. (Ext.5) of Sadar P.S.Case No. 84 of 1988 dated 09.08.1988 for offences under Sections 302 and 201 of the Indian Penal Code. The matter was investigated into and after completion of same, chargesheet was submitted. Cognizance was taken and police papers were supplied to the accused persons. Thereafter the case was committed to the court of session where charges under Sections 302/34 and 201 of the Indian Penal Code were framed and explained to the accused persons. They pleaded innocence. So the trial proceeded. 3. The defence of the accused persons was of false implication on account of pervious enmity. 4. In order to substantiate its case, the prosecution has examined 12 witnesses. They are : P.W.1 Md. Mustafa, P.W.2 Md. Suleman, P.W.3 Md. Mukim, P.W.4 Md. Yunush, P.W.5 Md. Kashim, P.W.6 Salima Khatoon, mother of the deceased, P.W.7 Atibur Rahman, P.W.8 Dr.Kapildev Prasad who held autopsy over the dead body of he deceased, P.W.9 Ainul Haque, so called panches, P.W.10 Md. Kalam, informant of this case, P.W.11 Devendra Narayan Singh, Officer-in-charge who recorded the fardbeyan and P.W.12 Jamilur Rahman, a photographer. 5. The inquest report has been brought on record vide Ext.4. The post mortem report has been marked as Ext.2. 6. The defence has also examined four witnesses. Kalam, informant of this case, P.W.11 Devendra Narayan Singh, Officer-in-charge who recorded the fardbeyan and P.W.12 Jamilur Rahman, a photographer. 5. The inquest report has been brought on record vide Ext.4. The post mortem report has been marked as Ext.2. 6. The defence has also examined four witnesses. They are : D.W.1 Ali Akbar, D.W.2 Shiv Deo Kumar, D.W.3 Janki Raman Lal Das and D.W.4 Md. Wahid. 7. The trial court after considering the entire evidences on record and after hearing the arguments of learned counsel for the parties opined that the prosecution has been able to prove the charges against the accused persons beyond the shadow of all reasonable doubts and has passed the order of conviction and sentence, as stated above. 8. This Court is required to reappraise the evidences on record and to see as to whether there are materials on record to prove the charges against the appellants beyond the shadow of all reasonable doubts or not. 9. The informant (P.W.10) has stated that his younger brother Md. Salam had gone with the appellants namely, Md. Mojim, Abdul Rajak, Md. Mofid and Sarfuddin Nadaf towards northern side of the village. At that time, this witness was sitting along with Md. Atibul (P.W.7) at the shop of Mokim (P.W.3). It was 6.00 P.M. of 04.08.1988. At about 8.00 P.M. the informant went to his house, then it was informed by his mother that Md. Salam was called by Sharfuddin and Md. Mofid and he accompanied them. This witness along with his mother P.W.6 went to enquire from Sarfuddin who told that Md. Salam was easing and he had returned his house. When Md. Salam left the house along with the accused persons, he was wearing green and black lungi and black and white shirt. This witness further stated that when Md. Salam did not return, in the next morning he made query from the accused persons who this time told that Md. Salam had gone to Calcutta. Some persons went Calcutta but no trace was made. On 08.08.1988 this witness knew that a dead body was lying in the ditch of Mohania Chaur. He rushed there and when went inside the ditch he found a dead body tied with a pole. Any how the dead body was taken out. This witness has stated that after 04.08.1988 the accused persons were found absent from the village. On 08.08.1988 this witness knew that a dead body was lying in the ditch of Mohania Chaur. He rushed there and when went inside the ditch he found a dead body tied with a pole. Any how the dead body was taken out. This witness has stated that after 04.08.1988 the accused persons were found absent from the village. This witness further identified the dead body with the assistance of one mark on the chest. The dead body was sent for autopsy after taking snap. The motive of occurrence described by this witness is that one year prior to the occurrence, his bhagini Rahmat khatoon was teased by Md. Mofid, Md. Sharfuddin and Abdul Rajak which resulted in Panchyati in which Rs.4000/- was awarded fine against them. The accused persons had paid the penalty amount but they were adamant to take revenge. Further dastardly motive was that twenty days prior of the occurrence, there was altercation between the ladies of the two families i.e. the informant and accused Abdul Razzaque. Further enmity has come in the cross-examination and thus it appears that both sides were at logger head since before the occurrence. 10. The evidence of this witness (informant) has been supported by other witnesses i.e. P.Ws.2, 3, 5, 6 and 7. The consistent evidence of these witnesses is that Md. Salam had accompanied the accused persons in the evening of 04.08.1988 and after about two hours the informant was informed that Md. Salam did not return his house whereas other companions had returned to their houses. When Md. Salam did not return, the informant was informed on the day following by the accused persons that Md. Salam had gone to Calcutta. After about four days, a dead body lying in the ditch was located and it was identified to be the dead body of Md. Salam. The doctor (P.W.8) who held autopsy over the dead body of the deceased found one ante-mortem injury: “muscles of the right side of the chest on its upper part were found slightly bruised in an area of 2”x2”.” The aforesaid injury was simple in nature and caused by some hard and blunt substance. The injury was not sufficient to cause death in ordinary course of nature. The dead body was highly decomposed. The soft tissues hands, head and face were separated and missing leaving bone exposed. The injury was not sufficient to cause death in ordinary course of nature. The dead body was highly decomposed. The soft tissues hands, head and face were separated and missing leaving bone exposed. The superficial skin of the remaining part of the body was found peeled off due to putrefaction giving reddish yellow and cheesy appearance of body over chest, abdomen and lower limbs. The muscles and other tissues were in highly decomposed state. The doctor has not found any injury on the neck and on the back of the head. 11. From the evidence of the doctor it appears that the post mortem was done upon the dead body of the deceased which was in highly decomposed state about which the informant has claimed identification on the basis of cloth. 12. Learned Amicus Curiae appearing on behalf of the appellants has submitted that it was highly improbable to imagine that if a person is missing whole night and it was the informant who had information in the evening that the said person was easing and in the next morning it was informed that the said person had gone to Calcutta, no search was made by the informant. If two types of information was received with regard to missing of person and both informations are so contrary, then nobody will sit idle and will rush to the police. It has also been submitted that no independent witness has been examined. Six witnesses who have been examined are related to the family of the informant. It has also been submitted that the route where the deceased Md. Salam along with the accused persons was going was a busy and thorough path and it was a Hat day and most of the villagers had attended the Hat but not a single independent witness has been examined. 13. Learned Additional Public Prosecutor appearing on behalf of the State has submitted that, no doubt, the identification of the deceased was not up to the mark but the prosecution has proved the chain of circumstances and it was hypothetical that the accused persons were responsible for death of Md. Salam. 14. The prosecution in all examined 12 witnesses. Out of whom P.Ws. 1, 4 and 12 are formal witnesses. P.W.9 is a witness of Panchaiyati and material witnesses are P.Ws. 2, 3, 5, 6, 7 and 10. Salam. 14. The prosecution in all examined 12 witnesses. Out of whom P.Ws. 1, 4 and 12 are formal witnesses. P.W.9 is a witness of Panchaiyati and material witnesses are P.Ws. 2, 3, 5, 6, 7 and 10. No independent witness has been examined but it cannot be averred that only on this the prosecution case has to be thrown away. Finding any independent witness is not an easy task. Everybody wants to remain neutral and desires non-involvement between two warring factions. Non-finding of independent witness does not create any doubt in the prosecution version. 15. The relationship of the witnesses has come in their depositions. P.W.10 is brother of the deceased and the informant of the case, P.W.6 is mother of the deceased, P.W.7 is the brother-in-law of the deceased, P.W.3 is uncle, P.W.5 is maternal brother of P.W.7 and P.W.2 is son-in-law of Sahedul-elder brother of Atibul Rahman (P.W.7). It has come in evidence that the path through which Md. Salam was going along with the accused persons was a busy thorough fare and it was a Hat (market) day and a lot of persons were present there. One thing which has not been explained by the prosecution was that as to why the informant and his persons had kept mum for four days though the accused persons had given two versions of the same occurrence. P.Ws. 6 and 10 had met the accused persons in the night 04.08.1988 as well as in the following morning. The versions were so contrasting which a prudent person cannot believe to be true. Even in the next morning when another version was given, then there was no explanation as to why not even suspicion was raised before the police. P.W.6 and P.W.10 had suspected on 05.08.1988 when accused Sharfuddin told that Md. Salam had gone to Calacutta. There should have been suspicion that Md. Salam might have been killed but even then neither the F.I.R. was lodged nor even Mukhiya, Sarpanch, Dafadar were informed about these two contradictory versions. The versions given by P.W.6 in paragraphs 5 and 6 and P.W.10 in paragraph 13, 14 and 15 in their depositions had spoken a lot about conflicting versions given by the accused and their suspicion regarding suspected killing of Md. Salam. When such conflicting statement was given by the accused it was enough for a prudent man to have grave suspicion. Salam. When such conflicting statement was given by the accused it was enough for a prudent man to have grave suspicion. Non-lodging of any information creates doubt and the prosecution has not been able to explain as to why for such a long time, the matter was not informed to the police. The delay in lodging the case is a factor which creates doubt with regard to truthful narration of the version in view of the decision of the Hon’ble Apex Court in the case of Thulia Kati Vrs.The State of Tamil Nadu reported in AIR 1973 SC page 501. No doubt, the prosecution witnesses have supported the fact that Md. Salam was found killed and buried in a ditch. The onus was upon the prosecution to prove that the killing was made by the accused persons and the accused persons were alone responsible to cause death of Md. Salam and that onus was not discharged. 16. We are not convinced in accepting the prosecution version that the appellants were the persons who committed murder of informant’s brother Md. Salam on the grounds that even after receipt of conflicting information regarding disappearance of Md. Salam, the informant and other material witnesses had kept mum for a long time and no information was lodged to the police though they had initially suspected the hands of the accused persons. Thus, a doubt has been created with regard to the prosecution version. If a doubt is created, then in criminal cases it goes in favour of the accused. 17. After analyzing the entire materials on record, we are of the view that there was nothing on record to prove the charges against the appellants. As such, the appellants deserve acquittal. 18. In the result, this appeal is allowed. The judgment of conviction and order of sentence is set aside. The appellants are acquitted of the charges. As the appellants are on bail, they are discharged from the liabilities of their respective bail bonds. 19. As none was appearing on behalf of the appellants in this appeal, Mr.Aminesh Kumar Mishra, Advocate was appointed Amicus Curiae to assist the court on behalf of the appellants and he has argued well. We appreciate the assistance given by Mr.Mishra. 20. Let a copy of first page and last page of the judgment be given to Mr. 19. As none was appearing on behalf of the appellants in this appeal, Mr.Aminesh Kumar Mishra, Advocate was appointed Amicus Curiae to assist the court on behalf of the appellants and he has argued well. We appreciate the assistance given by Mr.Mishra. 20. Let a copy of first page and last page of the judgment be given to Mr. Mishra, Advocate so that he may get his prescribed fee from High Court Legal Services Committee, Patna. Appeal allowed.