JUDGMENT (Per: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH) This appeal has been filed by the four appellants. Appellant No. 1, Bhagwati Sharma and appellant no. 2 Sanaullah have been found guilty of an offence punishable under Section 302 of the Indian Penal Code, appellant no. 3 Hiralal Sharma and his brother appellant no. 4 Hridya Sharma have been held guilty of an offence punishable under Section 302 read with Section 34 of the Indian Penal Code. All of them have been sentenced to life imprisonment by the VIth Additional Sessions Judge, Siwan by judgment and order dated 30th of April, 1990 passed in Sessions Trial No. 141 of 1988. 2. The prosecution case is based upon the Fardbeyan (Exhibit -3) and the first information report (Exhibit-7) which was registered on the basis of the said Fardbeyan of P.W. 1, Reshma Devi, who is the mother of the deceased Lal Babu Sah. The Fardbeyan was recorded at Lakri Dargah which is about 10 K.M. from Barharia Police Station, which, at the relevant time, was in the district of Siwan. In the Fardbeyan, it is alleged that in the afternoon of 03.05.1987, the informant’s grandson (Nati) Chhotelal (not examined) alongwith two of his friends, namely, Dhruv Prasad (P.W.5) and Bharat Prasad (P.W.6) came visiting from Mairawa where they used to stay. In the evening, her son Lal Babu Sah took her grandson Chhotelal and his friends Dhruv Prasad and Bharat Prasad for tea and snacks in the village Bazar. She alleged that 10 minutes thereafter, the seven accused persons i.e. appellant no. 1, Bhagwati Sharma, appellant no. 2 Sanaullah, appellant no. 3, Hiralal Sharma, appellant no. 4, Hridya Sharma and three others i.e. Seshnath Sharma, Amanullah and Md. Islam came and enquired from the informant as to where Lal Bahu Sah was. She informed that Lalbabu Sah had gone to market. After sometime, she heard the sound from outside the house across the road crying for help. Her grandson (Nati), his friends; Bharat Prasad and Dhruv Prasad came running and informed her that people were brutally assaulting Lalbabu in the Bazar, upon which she rushed to the spot which was on the main road in the Bazar and allegedly found the appellants Bhagwati Sharma and Sanaullah cutting up the deceased Lalbabu whereas appellants Hiralal Sharma and Hridya Sharma had caught hold of him. She said that thereafter when the villagers assembled, they all managed to run away. She named the two chowkidars who had come there. One chowkidar remained with the dead body of her son and the other accompanied them to the house and thereafter went to the police station to inform police. Having recorded this Fardbeyan, the Investigating Officer, Vindhyachal Singh (P.W.8), took the statements of various witnesses and then went to the Police Station and registered the case. After investigation, charge sheet was filed. In the charge sheet, apart from others, Chhotelal (NATI of the informant), the two chowkidars, Rajeshwar and Makduman have been shown as witnesses. In course of trial, the prosecution has examined 8 witnesses. 3. Let it be noted at the stage of evidence that there is no independent witness to the occurrence. Chotelal, Nati of the informant PW -1 who was an eye witness and as a matter of fact, gave the information to the informant, has not been examined. The two village chowkidars who were there and had been shown as charge sheet witnesses, have not been examined. P.W.1, as noticed above is Reshma Devi. She in trial supported her Fardbeyan and stated that she had seen the seven accused persons. She had seen appellant Nos. 1 and 2 cutting her son Lalbabu to death and she had seen others assisting in the said process. In her deposition, she stated that immediately thereafter, her son Kashinath Prasad also came home and she also narrated to him the whole story. She then added that when she went to the place of occurrence, she was accompanied by Shanti Devi, her daughter-in-law (wife of Kashinath Prasad). She stated that the reasons or the motive behind this killing was that about four years back Bhagwati Sharma had some quarrel with Lalbabu (deceased) which was then patched up in Court about a year back and the matter was compromised but Bhagwati Sharma and others did not take the compromise in the true spirit and intended to take revenge. That is why they had then conspired and killed her son Lalbabu. When we come to her cross examination, we find that she may not actually have witnessed the occurrence. As noted above, in the FIR, she does not mention that she had gone alongwith her daughter-in-law (P.W.2-Shanti Devi) to the place of occurrence. Now, she adds the name of daughter-in-law. When we come to her cross examination, we find that she may not actually have witnessed the occurrence. As noted above, in the FIR, she does not mention that she had gone alongwith her daughter-in-law (P.W.2-Shanti Devi) to the place of occurrence. Now, she adds the name of daughter-in-law. She then mentioned that her son Kashinath came immediately after the incident but when we examine the evidence of Kashinath Sharma, who has been examined as P.W.-4, it is found that he clearly stated that he was not at the village and he had come to the village on the following day of the occurrence, when his mother disclosed the facts. She states that the two village chowkidars were there but it is curious to note that none of the two village chowkidars have been examined. She admits in the cross examination that all the accused persons are neighbours and she knew them from before. She admits that it is the chowkidar, who had gone from the village and informed Daroga Jee, (Investigating Officer) (P.W.8), who came there and recorded her statement. She admits in her cross-examination that even though the dispute had arisen between her son and the accused persons over four years back but the matter was never raked up again between them. She had been suggested that the time of occurrence was at about 8:00 P.M. and in the village, it was dark. She admits that she had no source of identification. It was suggested that Lalbabu was of not a good character. He had been involved in several cases and it was probable that because of his such antecedent, he had been killed and the accused persons had been falsely implicated. It was also suggested that it was Chhotelal, (informant’s Nati) from whom Lalbabu had borrowed money and/or on refusal to return the same, it is probable that as a consequence thereof, Chottelal with his friends would have killed his uncle, Lalbabu. We will discuss why we have observed that P.W. 2, Shanti Devi (daughter-in-law of the informant) (P.W.1), wife of Kashinath Prasad (P.W.4) is then examined. She states that when she had gone to the place of occurrence Kashinath Prasad, village Chowkidar came at the place of occurrence. Now, this part falsifies her case when Kashinath Prasad (P.W.4) her husband is examined. She states that when she had gone to the place of occurrence Kashinath Prasad, village Chowkidar came at the place of occurrence. Now, this part falsifies her case when Kashinath Prasad (P.W.4) her husband is examined. He very clearly states that he was not in the village on that day and he had come after the incident and he was narrated the incident by his mother as noted earlier. The two village chowkidars have not been examined though they are charge-sheet witnesses. In cross-examination, she states that when she reached the place of occurrence, she found four people running away. No one from the village allegedly tried to chase them. Suggestion was given that Lalbabu had criminal antecedents, which she denied and stated that he had falsely been implicated in several cases. She was again suggested that her nephew Chhotelal had come to take back money which had been borrowed by Lalbabu and Lalbabu was refusing to return the same, which suggestion was denied by her. It was specifically suggested to her that the incident had not taken place in the manner in which it is alleged and it were some other people who had committed the crime and the accused persons were falsely implicated. 4. It may be noted here that as regards P.W. 2 she also states that her husband, Kashinath Prasad had come there immediately after the incident. When we come to the evidence of Kashinath Prasad, he clearly states that he came next day of the incident and after the Fardbeyan had been recorded. He had not seen but was told about the incidents. 5. P.W. 3, Nilam Devi is wife of the Lalbabu (deceased). She admits that she is merely hearsay witness. She had seen nothing and as such, she is of no help to the prosecution. 6. P.W. 4, Kashinath Prasad, states that on the date of occurrence he had gone to another village and he came to the village on the next day of the occurrence when his mother disclosed the facts that accused persons had killed his younger brother Lalbabu. He states that Chhotelal, Nati of the informant, is not traceable. He used to stay in Kathmandu but he is not there any more. He further states that Rajeshwar, one of the village chowkidar, has refused to give evidence as he has joined the accused persons. He states that Chhotelal, Nati of the informant, is not traceable. He used to stay in Kathmandu but he is not there any more. He further states that Rajeshwar, one of the village chowkidar, has refused to give evidence as he has joined the accused persons. In his cross-examination he was suggested that Chhotelal had been cheated by Lalbabu of about 15,000/- and there was a dispute in relation to its return. He admits that he had come back to the village after the date of occurrence. It was suggested to him that he had deposed before the police stating that his mother (informant) had told him that when she went to the site Chottelal and his friends ran away from the scene. He admits that there were criminal cases against his younger brother Lalbabu. From the evidence of this witness, it is clear that he is also a hearsay witness, though he is the elder brother of the deceased. He happens to be the husband of P.W. 2 and the son of P.W. 1. The informant P.W.1 and P.W. 2 Shanti Devi, desperately tried to place him at the place of occurrence when he specifically stated that he was not in the village on that day. In our view, that discredits all the four prosecution witnesses as to the truthfulness of their evidence. 7. P.W. 5 is Dhruv Prasad, the friend of Chhotelal, Nati of the informant. He admits that he and Bharat Prasad are Halwai and they used to stay at Mairawa. Chottelal also stays at Mairawa but his Sasural is at Birganj in Nepal. He admits in his cross-examination that Bharat Prasad, the other friend of Chhotelal who had come, is his own Mama. He admits in his cross-examination that he had never visited Lakri Dargah at any earlier point of time did not know anyone there. He had merely accompanied Bharat Prasad on request of Chottelal. He identified the accused persons in the Dock. This is of some significance because at paragraph 41 of his cross-examination he states that Kashinath Prasad (P.W.4), who is the elder brother of the deceased, is present in the Court and on a date earlier had told him the names and the role that is to be ascribed to the accused persons. This is of some significance because at paragraph 41 of his cross-examination he states that Kashinath Prasad (P.W.4), who is the elder brother of the deceased, is present in the Court and on a date earlier had told him the names and the role that is to be ascribed to the accused persons. In paragraph- 39 of the cross examination, he admits that Kashinath Prasad, though a witness in the case, was every day present in the Court and he (P.W.5) was coming to the Court with Kashinath Prasad. In our opinion, these two statements demolish the veracity of whatever this witness is trying to state. He is totally unreliable and cannot be trusted. 8. Bharat Prasad, P.W. 6. is the other friend of Chhotelal, the Nati of the informant. He is tendered but he is cross-examined. He makes the things worse for the prosecution. He admits that he is friend of Chhotelal but he does not know the uncle of Chhotelal. He states that he had heard that his uncle had been killed. How he had been killed he does not know. He admits in his cross-examination that Chhotelal had mentioned to him that they had to go to get money from his Mama i.e. Lalbabu. He does not support the prosecution version rather support the defence theory that Chhotelal had actually come demanding money from Lalbabu, his uncle, which is the consistent plea of the defence. 9. Thakur Ashok Kumar Prasad (P.W.7) is the doctor who performed the post-mortem. The injuries proved by him are quite gruesome. P.W. 8 Vindyachal Singh is the last witness for prosecution who is the Investigating Officer. He proves the place of occurrence being the main road of the village in the market. He proves that all the accused persons are of the immediate neighbourhood. He admits that there are cases under Sections 307, 395 I.P.C. as against deceased Lalbabu pending in his Police Station. In his cross-examination, he admits that when Chowkidar came to inform him of the incident, he did not disclose any name to him. He proves that all the accused persons are of the immediate neighbourhood. He admits that there are cases under Sections 307, 395 I.P.C. as against deceased Lalbabu pending in his Police Station. In his cross-examination, he admits that when Chowkidar came to inform him of the incident, he did not disclose any name to him. This creates a serious doubt about the prosecution version because P.W.1, the informant, has categorically stated that after the incident the village Chowkidar had come having heard about the occurrence and having stationed one person near the dead body, the other village Chowkidar came back to the house and then went to the police station to call Daroga Jee. If the incident had taken place in the manner in which it was narrated in the FIR and tried to be substantiated in the trial, then it ought to have been disclosed by the village – Chowkidar to the Daroga Jee at the very first instance. That was not done. He states that when he had recorded the Fardbeyan and took statements from the people of the house being present, there where no other villagers who were present. 10. It may be noted that upon this evidence though initially 7 witnesses were charge-sheeted with the murder of Lalbabu, three were acquitted and four have been convicted, as noted above. In our view, seeing the evidence as above we are not inclined to persuade ourselves to rely upon the evidence of P.W.1 or that of P.W. 2. For the reasons we have indicated earlier, it appears to us that no doubt Lalbabu was brutally killed but the story has been changed. Why the appellants would commit such a gruesome murder is not explained. The only thing that is told is that there had been a dispute four years back between appellant no.1 and Lalbabu which had been compromised in Court one year back but that can hardly be a cause for such a gruesome murder where so many persons would combine and would so brutally kill Lalbabu and that too allegedly on the main village road with no independent witnesses coming to give evidence. Such suggestions were there that in fact it was Chhotelal, who was instrumental in the said incident but Chhotelal, though a eye witness and related to the deceased being the nephew, did not turn up to give evidence. Such suggestions were there that in fact it was Chhotelal, who was instrumental in the said incident but Chhotelal, though a eye witness and related to the deceased being the nephew, did not turn up to give evidence. The two Chowkidars who were there first on the scene have not been examined though they were charge-sheet witnesses. The Investigating Officer clearly states that Chowkidar had not disclosed to him the name of the person or the manner in which Lalbabu was killed which also shows that the story is set up later on by the informant is not the correct version. In fact, she herself states that she heard the sound of Lalbabu from the road which was about 50 yards away from where she was standing in her house. This shows that Lalbabu had already been brutally assaulted by the time she left her house. She then states that Chhotelal and his two friends then came rushing and telling her that Lalbabu was being brutally assaulted. None of these three persons being local could have identified anyone. It is then that she rushes to the spot. She alleged that even when she reached, accused persons who were immediate neighbours were still at work of killing Lalbabu. That does not inspire confidence. Coupled with the fact of roping her son Kashinath Parasad (P.W.4) Lalbabu’s elder brother, which is denied by him shows that she is not a reliable witness. The manner in which Kashinath Prasad is found in the Court every day telling the witnesses what to say, whom to identify, clearly creates grave doubt upon the prosecution version. Why the village chowkidars two in number including one who went to inform the officer in-charge of the police station have not been examined, is not explained. Thus on consideration of overall view of the matter, it would not be safe to rely on the statement of P.W.1 and P.W. 2 for convicting the appellants at all. If that be so, then there is no credible evidence against the appellants. 11. In that view of the matter, we allow this appeal and set aside the conviction and sentence of the appellants passed by the trial Court. Appellants are acquitted of the charges levelled against them and they are discharged from the liability of their bail bonds.