JUDGMENT (Per: HON’BLE MR JUSTICE NAVANITI PRASAD SINGH) 1. These two appeals arise from Sessions Trial No 125 of 1985/120 of 1988 whereunder by judgment and order dated 31.07.1992, all the appellants of the two appeals have been found guilty under sections 302/149 of Indian Penal Code (IPC) and sentenced to life imprisonment by the Additional Sessions Judge I, Muzaffarpur. 2. It may be noticed here that 14 persons were put on trial out of which only six have been convicted and the rest have been acquitted on the same evidence. It may also be noticed that right from the beginning that is from the stage of Fardbayan, 14 persons have been named and they had been chargesheeted as well but the trial Court found the prosecution of eight persons to be misconceived and lacking in evidence though the evidence is the same for all. 3. We have heard the learned counsels for the appellants and learned APP Shri Ajay Mishra for the State at length and perused the records. The prosecution case is based upon a Fardbayan recorded at about 10 pm on 12.03.1984 by the Assistant Sub Inspector (ASI) of Police, Kanti Police Station (PS) Shashi Nath Jha who is also the Investigating Officer (IO) (PW 10). This Fardbayan is recorded at the house of the informant Tej Narayan Prasad (PW 7). It is, inter alia, alleged that the informant alongwith others including the deceased Deep Narayan Prasad, who was his cousin, were having tea at two adjacent tea stalls. Appellant Yashwant Prasad was also there having tea. Some quarrel started between appellant Yashwant and deceased Deep Narayan Prasad. Informant and others allegedly pacified the two. Appellant Yashwant went to his village threatening Deep Narayan Prasad, the deceased. Later when informant and deceased Deep Narayan Prasad and others were moving towards their village from tea stall, they found appellant Yashwant with other appellants waiting on the road side. They were armed with bhala, farsa and lathis. It is specifically mentioned that appellant Yashwant was carrying a “Lukiari” (Mashal – fire lit torch). They singled out Deep Narayan Prasad. He was assaulted and killed. The informant and others ran away and when they came to their village, they found a hut near the informant’s house burning and the people there disclosed that it had been lit by appellant Yashwant. They singled out Deep Narayan Prasad. He was assaulted and killed. The informant and others ran away and when they came to their village, they found a hut near the informant’s house burning and the people there disclosed that it had been lit by appellant Yashwant. It was also alleged that some of these appellants took away the two cycles of the informant and deceased Deep Narayan Prasad. 4. Upon this Fardbayan being recorded, police took the charge of the body of Deep Narayan Prasad, the deceased from the Sadar Hospital, Muzaffarpur and after investigating the case, police filed a chargesheet against 14 persons who were put on trial. Cognizance, having been taken, the case was committed to Court of Session where charges under different heads were framed. Firstly, all the 14 were charged under Sections 302/149 of IPC. Yashwant was charged separately under section 435 of IPC and all 14 were separately charged under Section 379 of IPC. Appellant Satya Narain Prasad was separately charged under Section 323 of IPC. It may be noticed that the charges under Sections 435 and 379, IPC were ultimately found unsustainable. 5. In course of trial, prosecution examined 12 witnesses and the defence also examined six witnesses. 6. The prosecution case was that there being an altercation at the tea stall as between appellant Yashwant and Deep Narayan, Yashwant planned to kill Deep Narayan, the deceased. The defence was that the incident had been totally falsified in all respects. Deceased Deep Narayan Prasad and the informant Tej Narayan Prasad (PW 7), though cousins, were on inimical terms. Informant Tej Narayan Prasad (PW 7) was the son of late Bahadur Prasad from his first wife. Bahadur Prasad had married thrice, the last being Panwati Devi. Bahadur Prasad, in the year 1980, had gifted certain lands to Panwati Devi. He died thereafter. Panwati Devi sold some of those lands to appellant Yashwant Prasad and several of the other appellants. There were series of litigations between the informant Tej Narayan Prasad (PW 7) and these appellants in respect of the said lands. Informant (PW 7) was denying all rights and properties to his step mother Panwati who was pushed in a hut outside the house. On the fateful day, she was being assaulted and her hut was burnt by the informant (PW 7) himself. Informant (PW 7) was denying all rights and properties to his step mother Panwati who was pushed in a hut outside the house. On the fateful day, she was being assaulted and her hut was burnt by the informant (PW 7) himself. When deceased Deep Narayan intervened to save his aunt from her step son, it is the informant (PW 7) who chased and killed Deep Narayan Prasad and, taking advantage of this, falsely implicated the appellants to serve the grudge and pre-existing enmity and also in an effort to conceal his crime. We have to see whether the appellants have committed the crime and whether the prosecution has succeeded in proving its case beyond reasonable doubt. 7. As noticed above, prosecution has examined 12 witnesses, out of which PW 11 Dr Manoranjan Kumar Srivastava is Professor of Forensic Science who conducted the post mortem of deceased Deep Narayan Prasad and submitted the post mortem report. PW 12 is Dr Lila Pandey who is alleged to have examined injured prosecution witness Saryug Prasad (PW 2) and gave an injury report. PW 10 is Shashi Nath Jha, the ASI of Kanti PS who recorded the Fardbayan and was the IO. That leaves us with nine non-official witnesses out of whom there are two who are independent witnesses that is PW 3 Nand Lal Sah and PW 8 Daroga Mahto. They are the two owners of the two tea stalls where allegedly the dispute started as between the deceased Deep Narayan Prasad and the appellant Yashwant. PW 4 is Shambhu Ram who is the Chaukidar in whose bit the village falls. He has been brought not as a witness because he has not seen anything but only to prove that he had gone and informed the PS about the occurrence as was disclosed to him by others. He had not seen the occurrence. That leaves us with six witnesses that is PW 1 Jagdish Prasad (PW 2), Saryug Prasad, PW 5 Ram Chatri Prasad, PW 6 Ram Ekbal Prasad, PW 7 Tej Narayan Prasad, the informant and PW 9 Gopal Pandit. PW 9 Gopal Pandit appears to be a servant of the informant Tej Narayan Prasad (PW 7) who was also with him taking tea at the tea stall at the relevant time. The six, that is excluding PW 9 Gopal Pandit, they are all close agnates. PW 9 Gopal Pandit appears to be a servant of the informant Tej Narayan Prasad (PW 7) who was also with him taking tea at the tea stall at the relevant time. The six, that is excluding PW 9 Gopal Pandit, they are all close agnates. Firstly, we would discuss the evidence of these six prosecution witnesses including the informant. 8. In the Fardbayan, which has been brought on record and proved, all that is said about appellant Yashwant is that he had a Lukiari and others were armed with farsa, bhala and lathi. No specific roles are attributed to any of the appellants except stating that they all indiscriminately assaulted deceased Deep Narayan Prasad. When we come to the evidence of the six prosecution witnesses, which is long after the receipt of the post mortem report, they have now concretized their allegation. They consistently, in a parrot like manner, states that the appellant Yashwant, having surrounded deceased Deep Narayan Prasad, threw the Lukiari and took the farsa with both his hands and struck deceased Deep Narayan on the head facing him. Then one Maharana Pratap pierced his foot by bhala. It may be noted that the trial Court has acquitted Maharana Pratap and there is no appeal against his acquittal. Then when Saryug Prasad (PW 2) went to stop the assault on deceased Deep Narayan, he was assaulted by lathi by appellant Satya Narayan. All the prosecution witnesses then ran and hid themselves in the banana plantation nearby. They all went to the village and then came back to pick up injured Deep Narayan to send him to the Hospital where he died. Why we have mentioned about this is that though the informant is supposed to be eye witness alongwith other witnesses of the entire occurrence, in the Fardbayan, nothing specific is attributed to any of the assailants and it is left vague. What is curious is that the assailants were allegedly about 10 to 14 in number whereas the prosecution side were also about 7 to 8 in number. Deceased Deep Narayan and Tej Narayan, the informant had bicycles but still there were no altercations between different persons. No one tried to save. No one tried to run away. The prosecution witnesses hid in the banana plantation nearby and no one was, thereafter, attacked except Saryug. Deceased Deep Narayan and Tej Narayan, the informant had bicycles but still there were no altercations between different persons. No one tried to save. No one tried to run away. The prosecution witnesses hid in the banana plantation nearby and no one was, thereafter, attacked except Saryug. Even thereafter, no one immediately then carried injured Deep Narayan to the Hospital rather they all first went to the village where they saw hut burning allegedly burnt by appellant Yashwant. They then came back and picked up the deceased. This is very unnatural move. But nevertheless the evidence is unchangingly consistent. 9. We now come to the evidence of the two tea stall owners that is PW 3 Nand Lal Sah and PW 8 Durga Mahto. They would have been the best independent persons to state as to what had happened at their tea stall which led to such an extreme step being taken by appellant Yashwant. When Nand Lal Sah (PW 3) is brought in prosecution, he refuses to corroborate the prosecution story of there being any quarrel as between deceased Deep Narayan and appellant Yashwant at the tea stall. He is confronted with the statement made to the police in the investigation which he refutes. He is declared hostile. Then when we come to the second tea stall owner Durga Mahto (PW 8), prosecution does not risk examining him in chief. He is tendered. This creates a doubt about the credibility of the prosecution story. We need not labour much because in the case of Sukhwant Singh –Versus- State of Punjab since reported in AIR 1995 Supreme Court 1601, this is what the Apex Court has said: “… … …There is no procedure whereby the prosecution is permitted to tender a witness for cross-examination only, without there being any examination-in-chief in relation to which, such a witness can be cross-examined. The effect of witnesses being tendered only for cross-examination amounts to the failure of the prosecution to examine them at the trial. Their non-examination, in our opinion, seriously affects the credibility of the prosecution case and detracts materially from its reliability.” 10. In view of the evidence of these independent witnesses not supporting the prosecution case, the very foundation of the prosecution story is shaken. 11. Their non-examination, in our opinion, seriously affects the credibility of the prosecution case and detracts materially from its reliability.” 10. In view of the evidence of these independent witnesses not supporting the prosecution case, the very foundation of the prosecution story is shaken. 11. We may notice here that through suggestions, the defence has been suggesting consistently that in fact the informant (PW 7) and deceased Deep Narayan, who were close cousins, were on inimical terms. Prosecution admits that Tej Narayan Prasad, the informant (PW 7) was facing prosecution for having attempted to kill deceased Deep Narayan on an earlier occasion. Then the defence has been able to prove through questions in cross-examination that the father of Tej Narayan Prasad, the informant (PW 7) Bahadur Prasad had three marriages. Tej Narayan, the informant (PW 7) was the son from the first marriage. The third wife Panawati Devi was at the time of incident above 70 years of age and a widow. Defence has proved Exhibit D, a deed of gift of certain lands by Bahadur Prasad, the father of informant (PW 7) to Panawati Devi, the third step mother of the informant (PW 7). It is rightly argued on behalf of the appellants that this shows that there was mistrust by the father Bahadur Prasad on his son, the informant Tej Narayan Prasad (PW 7) in relation to his relationship with his third step mother Panawati Devi. Panawati Devi then sold lands out of these gifts to appellant Yashwant and the other appellants at different times. The submission is that all these appellants, who had purchased lands from Panawati Devi, have been made accused in this case. Defence has also brought on record Exhibits C, C1 and C2 being orders of 145, Criminal Procedure Code (Cr P C) proceedings as between appellant Yashwant and the informant. They have rightly argued that even though those lands were gifted by Bahadur Prasad to Panawati by registered gift deed and Panawati Devi having sold them by registered sale deed to the appellants, informant was not vacating the same. Therefore, orders under Section 145, Cr P C were passed and it is because of this reason they have all been named as accused in the present case. In our view, defence has succeeded in establishing that in fact there had been enmity between the informant and the deceased who were close cousins. Therefore, orders under Section 145, Cr P C were passed and it is because of this reason they have all been named as accused in the present case. In our view, defence has succeeded in establishing that in fact there had been enmity between the informant and the deceased who were close cousins. There was great enmity between the informant and the appellants. The prosecution has failed to prove that there was any enmity between the appellants and Deep Narayan Prasad, the deceased. The question then would be as to why the appellants would then kill Deep Narayan Prasad. The prosecution story of an altercation taking place at tea stall is shaky because the two independent witnesses, as notice above do not support the prosecution case. Thus, there seems to be some other reason for the crime and some other manner for the crime. Obviously, the prosecution appears to be diverting the true story. 12. Now we come to the depositions of the IO (PW 10) Shashi Nath Jha. We would not like to delve upon this much except that a direct question is put to him whether Panawati Devi had filed any case in regard to the incident and whether the IO had investigated it or not. Instead of answering in either affirmative or denying, he evades the answer. He states that he does not remember. The reason is not far to look because the defence has proved Exhibit A, a written complaint filed by Panawati Devi in regard to the said incident. Learned APP submits that this complaint was filed belatedly as a cover up for the defence as the occurrence took place on 12.03.1984 whereas this complaint was filed on 20.03.1984 after more than a week. We have noted this only to reject because if one reads the complaint itself, the explanation for the delay is there. The fact that the IO is deliberately concealing if not denying about this is apparent from the fact that the very case diary in which he has recorded the statement of witnesses under Section 161, Cr P C, he has himself recorded receiving the complaint from Court under Section 156 (3), Cr P C and even examining some persons in respect thereof. Learned counsel for the appellants submits that this matter was then not pursued by the IO for the simple reason because Panawati Devi died and all these appellants were arrested and could not do necessary pairvi in the matter. We are inclined to accept this. 13. Now we may look into Exhibit A. It clearly supports the defence suggestion right through the cross-examination of prosecution witnesses. It clearly states that Panawati Devi had been thrown out of the house by Tej Narayan Prasad, the informant (PW 7). She was the third step mother of Tej Narayan Prasad, the informant (PW 7). She was consigned to the hut. On the fateful day, she was being mistreated. She was even being thrown out of the hut. When deceased Deep Narayan intervened to save his aunt from the mistreatment being meted by Tej Narayan, the informant (PW 7), this led to deceased Deep Narayan being chased and killed by Tej Narayan, the informant (PW 7) and Panawati Devi’s hut being burnt by Tej Narayan, the informant (PW 7) himself. This is consistent with the defence suggestions. The prosecution, thus, deliberately, consciously tried to conceal this fact. 14. Thus seen, the very foundational fact which started the events that is the altercation at the tea stall having not been satisfactorily proved rather witnesses turning hostile on that issue coupled with the conscious effort by the IO to conceal the fact about the case lodged by Panawati Devi in regard to the incident shows that the prosecution is trying to conceal more than disclose. It has changed the entire incident and turned it upside down. These create grave doubt about the credibility and the correctness of the prosecution story. 15. That being so, we cannot hold that the prosecution has succeeded in establishing its case beyond reasonable doubt. Consequently, we are unable to uphold the conviction of the appellants. 16. The appeal is allowed. The judgment of conviction and order of sentence is set aside. The appellants are set at liberty. 17. The appellants, who are on bail, are freed from the liabilities of their bail bonds. Appeal allowed.