DHARNIDHAR JHA, J.:–Four accused persons were put on trial after being charged with committing offence under Section 302/34 IPC by the learned 2nd Additional Sessions Judge, Sitamarhi in Sessions Trial No.13 of 1991. The solitary appellant Shashi Kumar Singh was held guilty of committing offence under Section 302 IPC by judgment dated 28.08.1992 passed by the above said Court in the above said case while the three other accused persons, namely, Niranjan Singh, Shambhu Singh and Gagandeo Singh were acquitted of the charge they had been indicted with. Appellant Shashi Kumar Singh was heard on sentence on the same day and was directed to suffer rigorous imprisonment for life. He has appealed against the judgment of conviction and order of sentence to this Court. 2. The deceased Raj Mangal Singh was the younger brother of the informant Bashist Narayan Singh. It was stated by Bashist Narayan Singh in his FIR that at about 9 P.M. in the night intervening 14/15th of July, 1990 Niranjan Singh (since acquitted) came to his house and informed the deceased Raj Mangal Singh that he was required to go to his house for having a glance of a postal document. As may appear from the evidence of P.W.2 Bashist Narayan Singh, the informant, the deceased Raj Mangal Singh was a postal peon and, as such, was the need, as per the prosecution story, of asking him to have a glance of a document. The deceased Raj Mangal Singh went to the house of the accused. The informant stated that after some while cries and shouts of deceased Raj Mangal Singh was heard by him and others as a result of which he along with P.W.3 Kedar Singh, P.W.5 Hari Shanker Singh and P.W.4 Gauri Shanker Singh and others went to the house of Niranjan Singh and found cries of deceased Raj Mangal Singh was emanating from the eastern room of the house. The informant and others claimed to have dismantle the window fixed in the eastern wall of the room and after flashing the torch light found that deceased Raj Mangal Singh was profusely bleeding and further that this appellant Shashi Kumar Singh was having a chhura stained with blood in his hand, while other accused persons were also carrying similar sort of weapons in their respective hands and they were standing in the very room. The informant claimed that the wearing apparels of the accused persons were also soaked with blood and as soon as the accused persons saw the informant and his companions they exitted from the room which was closed from inside whereafter the rods of the window were pulled out to create some space and deceased Raj Mangal Singh was taken out from there. 3. The informant, thereafter, stated another story that deceased Raj Mangal Singh had been salvaged from the room and he made a statement to him and others that after he had been taken to his house by Niranjan Singh, he himself stood in front of the door while appellant Shashi Kumar Singh closed the doors and windows of the room which made him suspicious about the intentions of the accused persons and he started shouting. But, three other accused persons, namely, Shambhu Singh, Gagandeo Singh and Shashi Kumar Singh captured the deceased and started giving chhura blows to him as a result of which he was seriously injured. The informant stated that when he and others were attempting to break the window of the house, this appellant Shashi Kumar Singh put off the lantern which was burning there and further stated that after having made the above statement, his brother started loosing his consciousness and further that the accused persons had exited from the room holding out threats that they will eliminate all his family members. The informant stated that he put his injured brother on a cot and started for the hospital, but when they had reached the place described as Lachchu Tola in the FIR, his brother breathed his last and further that the incident had occurred on account of old enmity between the parties. 4. P.W.6 S.I. Shashi Bhushan would say that he recorded the statement of P.W.2 Bashist Narayan Singh and on that basis drew up the FIR which was written by literate constable Ram Binod Thakur. P.W.6 took up the investigation and recorded the statements of the informant P.W.2 Bashist Narayan Singh, P.W.3 Kedar Singh, P.W.3 Gauri Shanker Singh and P.W.5 Hari Shanker Singh. He, thereafter held inquest upon the dead body of deceased Raj Mangal Singh and prepared inquest report by carbon process. The copy of inquest report was marked as Ext-5. P.W.6 took up the investigation and recorded the statements of the informant P.W.2 Bashist Narayan Singh, P.W.3 Kedar Singh, P.W.3 Gauri Shanker Singh and P.W.5 Hari Shanker Singh. He, thereafter held inquest upon the dead body of deceased Raj Mangal Singh and prepared inquest report by carbon process. The copy of inquest report was marked as Ext-5. He sent the dead body with the dead body challan for postmortem examination to Sadar Hospital, Sitamarhi through Hawaldar Mushafir Ram and Chaukidar Ram Chandra Singh. P.W.6, thereafter inspected the place of occurrence which was the house of present appellant facing east. It had a dilapidated verandah and there was an entry point in the form of gate to enter inside Angan part of the house which was fixed with a door which was to be closed from inside. The verandah was on the four sides of the Angan, rooms were located on the four verandahs of the Angan, there three rooms facing east and two rooms facing north. Out of the two rooms facing north, the one which was on one extremity of verandah, was opening on the eastern corner of the verandah. The verandah in the west was joining southern verandah and the eastern room which was facing north was the place where the incident had occurred. There was a window fixed in the eastern wall of the room and it was at the height of eight feet from the outer ground level. The window was fabricated by wood and it was also in dilapidated condition fitted with eight iron rods out of which three were still fixed up. However, three rods had been pulled towards outside and as such, had become obliterated. The middle limb of the window was also found broken and the rods were found removed from the window frame as a result of which the window had also been broken. The window was measuring 3” in height and 2-1/2” in width. There was a Chauki placed inside the room which was by the side of the eastern wall and it was spread up from north to south. A cotton bed-sheet was spread up on the Chauki. Besides, a white- torn-dhothi was also found spread up over it. A mosquito repellant was found fixed with the split-up bamboos and it was still hanging with the support. The bed-sheet and the mosquito repellant were also found there. A cotton bed-sheet was spread up on the Chauki. Besides, a white- torn-dhothi was also found spread up over it. A mosquito repellant was found fixed with the split-up bamboos and it was still hanging with the support. The bed-sheet and the mosquito repellant were also found there. The mosquito repellant was deeply stained with blood in the eastern part and had also fallen there. The height between the Chauki and the window was of about three and half feet inside the room and some dragging mark created by blood was also found over the window. Broken parts of wooden frame were also found there and the Kothi (it is an granary make) was also found inside the room and some blood was also found there. The almirah was placed in the middle of the northern wall of the room and a box was also found under the Chauki. 5. The investigating officer seized the blood stained plastic mosquito curtain with bed-sheets and the Dhothi by preparing the seizure memo. The investigating officer recorded the statements of other witnesses and after completing the investigation submitted chargesheet against four accused persons who had been put on trial keeping the investigation pending against accused Shambhu Singh. 6. The defence of the accused persons was that the deceased was thoroughly a bad character and that he had intruded in the dead of night into the house of D.W.1 Bachchi Devi who happened to be the mother of appellant Shashi Kumar Singh and accused Niranjan Singh and as soon as the lady sensed the presence of the accused, she unlocked the doors and rushed out from the room shouting as to what had happened inside it, which attracted the villagers who assaulted the deceased who died at the spot. 7. The prosecution examined nine witnesses, out of whom, P.W.1 Baidyanath Singh was the cousin of the informant Bashisth Narain Singh and the deceased Raj Mangal Singh. P.W.2 Bashisth Narain Singh was the informant himself who happened to be the full brother of the deceased. P.W.3 Kedar Singh was yet another relative of the deceased and the informant as appears admitted not only by him but also by P.W.1 Baidnath Singh in his evidence in paragraph-6 of his deposition who had also stated that his son Chandrashekhar (not examined) had also been cited as a witness by the prosecution. P.W.3 Kedar Singh was yet another relative of the deceased and the informant as appears admitted not only by him but also by P.W.1 Baidnath Singh in his evidence in paragraph-6 of his deposition who had also stated that his son Chandrashekhar (not examined) had also been cited as a witness by the prosecution. P.W.2 Bashist Naraian Singh as may appear from his own evidence and also from the evidence of his brother Hari Shanker Singh (P.W.5). We have already noted that P.W.6 S.I. Shashi Bhushan had investigated the case, whereas P.W.7 Dharmdeo Singh was not a witness on any fact except that he had gone to the house of the deceased Raj Mangal Singh and found him lying on the cot and blood around him. P.W.9 Dr. Uma Shanker Singh had held postmortem examination on the dead body of deceased Raj Mangal Singh and had prepared the postmortem examination report (Ext-7). 8. The defence examined Bachchi Devi (D.W.1), the mother of the present appellant Shashi Kumar Singh and the defence version which we had noticed a bit earlier was brought on record through her. 9. After having considered the evidence both of the prosecution and the defence witnesses, the impugned judgment was passed. 10. Sri Barun Kumar Choudhary, the learned counsel appearing for the appellant took us through the evidence of the witnesses and pointed out that there were serious absurdities and improbabilities affecting the prosecution evidence which renders the very storey unacceptable and makes the defence version probable and, as such, the appellant deserves to be acquitted. 11. Dr. Mayanand Jha, learned Additional Public Prosecutor was also conceding that the prosecution had not succeeded in brining the charges home beyond all shadows of doubt. 12. There is not much to be discussed as regards the evidence. What we want to emphasize at the very outset is that the learned trial Judge who passed the impugned judgment was himself suspicious about the participation of three accused persons and on that account passed the judgment of acquittal in their favour. 12. There is not much to be discussed as regards the evidence. What we want to emphasize at the very outset is that the learned trial Judge who passed the impugned judgment was himself suspicious about the participation of three accused persons and on that account passed the judgment of acquittal in their favour. The evidence of the witnesses was also consistent as could be found against the appellant Shashi Kumar Singh, when considering individual act which were assigned to the three, namely, Niranjan Singh, Shambhu Singh and Gagandeo Singh, but the learned trial Judge considering the solitary circumstance of a chhura being found by the witnesses in the hand of the appellant which were bearing fresh stains of blood was finding it as conclusive as to convict appellant Shashi Kumar Singh. While the learned Judge was passing the above finding, we are constrained to note, he was missing some of the most important circumstances which were improbabilizing the very story told by the witnesses. All the witnesses, i.e., P.Ws.1,2,3,4 and 5 have consistently stated that after picking up the cries of deceased Raj Mangal Singh which was emanating from the house of appellant Shashi Kumar Singh, they came there and while witnesses, like, P.Ws.1,2 and 3 stated that they came straightway to the window which had been fixed in the eastern wall of the house, one witness, namely, Ganauri was pointing out that he and others went to the main gate of the house and finding that the gates and windows were closed from all sides he and his companions came to the eastern window of the room from where cries of the deceased were emanating. While P.W.1 claimed that he dealt a lathi blow to dismantle the window, P.Ws.2 and 3 stated that it was they who had dismantle it. P.W.4 stated that he found the window closed and then gave a little bit of push as a result of which it fell inside the room. What we found while considering the evidence of the investigating officer was that he did not find anything fallen inside the room. He had found, of course, the window intact, is middle limb having been smashed, some part of it also having fallen inside the room, but, the iron rods which had been fixed in the window and which were eight in number, were still there. He had found, of course, the window intact, is middle limb having been smashed, some part of it also having fallen inside the room, but, the iron rods which had been fixed in the window and which were eight in number, were still there. Now when it came to peeping inside the room, the witness P.W.2, the informant himself, was stating in paragraph-14 that it was at such a height that no one could have peeped inside after standing outside the room. This appears to probable evidence because P.W.6, the investigating officer, had also found the window fixed at a height of about eight feet from the ground level. We have not as yet achieved height of eight feet by any means. No one could peep inside and also probabilize the fact as P.W.2 himself was stating that it was he and P.W.3 Kedar Singh who had first appeared near the window and they had caught the bars of the window with their one hand and had flashed the torch light by the other hand by clinging on to the window. As regards inside of the room, it is consistently stated by the witnesses without any variance, that they had found the deceased Raj Mangal Singh inside the room. He was bearing number of injuries which was also bleeding profusely and he was moaning and shouting and as soon as the accused persons saw the informant and others they bolted the door and exited, but curiously enough the deceased who was there lying on the Chauki as per the evidence of P.W.2 and other, labourerd, so much so to stand up the Chowki and then he was helped out by the witnesses in coming out of the room through the small opening which was created by putting out three iron bars from the window frame of 3 ½ ft.x1 ½”. There was no clothe on the body of the deceased. This is also consistently stated by the witnesses. We simply could not reconcile ourselves to the situation as to why when the accused persons had already left the room, the deceased was without clothes. As regards the finding that the witnesses were peeping through the window of the house and were helping the deceased to come out of the house, we repeat that the window was measuring 2 -1/2” i.e., about 30 inch in width. As regards the finding that the witnesses were peeping through the window of the house and were helping the deceased to come out of the house, we repeat that the window was measuring 2 -1/2” i.e., about 30 inch in width. We could not comprehend as to how by merely creating a space by bending three rods a man of 35 years of age could be exiting out of that small opening. We find the story indigestible. We have already noted above that we could not get any reason as to how the deceased lost his clothes in the room. The investigating officer has also pointed out that while he was holding inquest upon the dead body of deceased Raj Mangal Singh, he did not find any cloth and the dead body was found wrapped into a saree. 13. The deceased had gone to look to some postal documents. We could not appreciate as to how after having arrived at the house of the appellant, he was relieved of his wearing apparel. If the accused were determined and had really given blows with an intention to kill him, they could very well have killed him in his clothes. Why they felt the need to remove the clothes. This is beyond our comprehension and it points out in to some other direction that Raj Mangal Singh, the deceased was not a person of good behaviour and probably the defence version that he had intruded inside the house of D.W.1 Bachchi Devi in absence of his son and that the lady had made his intrusion known to the whole world which had come together to finally assault him in such a way as to cause to those injuries. This probability emerges very strongly from the circumstances and as we have already noted, the learned trial Judge missed those circumstances to consider, else he could not have committed error in convicting the solitary appellant Shashi Kumar Singh of the charge under Section 302 IPC. 14. After having gone through the evidence of the witnesses and having found what we have just recorded, we find that the appeal is quite meritorious. It is, accordingly, allowed by setting aside the judgment of conviction of appellant Shashi Kumar Singh who is on bail. He need not surrender to his bond. He is discharged from the liabilities of his bail bonds. ?