NAVANITI PRASAD SINGH, J.:–This appeal was originally filed by six appellants against the judgment of conviction and sentence passed by the Ist Additional Sessions Judge, Sitamarhi in Sessions Trial No. 256 of 1988 convicting them on 25.02.1991 under section 302/34 of the Indian Penal Code and sentencing them to undergo rigorous imprisonment for life. 2. Mr. Barun Kumar Choudhary, learned counsel appearing in support of the appeal, has stated that so far as appellant no. 5 Saryug Sah and appellant no.6 Baldeo Sah are concerned, they have died during the pendency of the appeal and as such the appeal in relation to them has abated. Accordingly, this appeal in relation to appellants no. 5 and 6 is held to have abated. 3. The prosecution case is based on the fardbeyan of P.W.9 Sushila Devi (the young daughter of the deceased Jagtaran Devi). The fardbeyan is Ext.4, which is said to have been recorded at 1A.M. on 30.04.1988 by the Investigating Officer (P.W.12), on the basis whereof the formal first information report was registered allegedly at 3A.M. on the same day. In the fardbeyan, P.W. 9 Sushila Devi states that while she was sleeping in her house in one of the rooms, her younger sister Kaushalya Devi (P.W.6) shouted that their mother had been killed. She got up and came out of the room and allegedly found appellant no.1 Lakshman Sah, who had a knife and appellant no.5 Saryug Sah, who had a dagger, were brutally assaulting her mother. Two others were holding her and the two others were kicking and beating her, in course of which she vomited blood and due to fatal injuries she died. On their shout, neighbours turned up and seeing them the assailants fled away. Village Choukidar then came and was sent to the Police Station, whereafter the Investigating Officer came and the statement was recorded. This statement was witnessed by P.W.7 Ramashish Jha and P.W. 11 the Mukhiya Chandradeo Prasad. 4. The inquest report was then prepared, which is Ext. 2, at about 6.30A.M., which is again witnessed by the Mukhiya Chandradeo Prasad (P.W.11) and one Baijnath Jha, who happens to be son of P.W.7 Ramashish Jha. Thereafter, the dead body was sent for post-mortem and post-mortem was conducted by Dr. B. D. Bhagat (P.W.13) and the post-mortem report is Ext.6. The inquest report was then prepared, which is Ext. 2, at about 6.30A.M., which is again witnessed by the Mukhiya Chandradeo Prasad (P.W.11) and one Baijnath Jha, who happens to be son of P.W.7 Ramashish Jha. Thereafter, the dead body was sent for post-mortem and post-mortem was conducted by Dr. B. D. Bhagat (P.W.13) and the post-mortem report is Ext.6. The Police took up investigation and after investigation submitted charge-sheet against the six appellants and the case was, thereafter, committed to the court of session for trial. 5. The prosecution in order to establish the charge of section 302/34 of the Indian Penal Code (for short `I.P.C.’) as framed against the appellants examined thirteen witnesses. The defence examined two witnesses being D.W.1 Suraj Deo Rai (Village Choukidar) and D.W. 2 Kailash Sah, who was the cousin of husband of the deceased. The case of the prosecution was that the incident took place because Saryug Sah, Lakshman Sah and Bhudhu Sah had managed to get a sale-deed executed by Bindeshwar Sah (the husband of the deceased) in relation to certain lands in favour of their mother Janki Devi. There was some dispute. There was Panchayati. In the Panchayati, it was directed that Lakshman Sah would get Janki Devi to transfer 5 dhurs of land in favour of Bindeshwar Sah, which they were not ready to do and it is because of this dispute that this occurrence took place. 6. The defence was that, in fact, no such incident took place. It was not a case of homicide. Jagtaran Devi had died of prolonged illness and taking advantage of the situation, a case had falsely been built up. Apart from other contradictions, learned counsel for the appellants relied upon the evidence of the Doctor and the post-mortem report. What simply he submitted is that there is categorical allegation that two persons with knife and dagger brutally assaulted the deceased lady. Others kicked and slapped her, because of which she died. But when we come to the post-mortem report, it appears that the Doctor clearly finds absolutely no external or internal ante-mortem injury. All he finds is brain haemorrhage, bleeding from nose, which is natural consequence and then opines that death could be due to suffocation. There is not a single scratch on the dead body. 7. Be that as it may, let us examine the evidence. All he finds is brain haemorrhage, bleeding from nose, which is natural consequence and then opines that death could be due to suffocation. There is not a single scratch on the dead body. 7. Be that as it may, let us examine the evidence. So far as P.W.1 and P.W.2 are concerned, P.W.1 Rampal Sah is the immediate neighbour and P.W.2 Keshwar Sah is the uncle of the husband of the deceased and also a neighbour. Both did not support the prosecution and were declared hostile. 8. Let us first examine the evidence of the two daughters and the sister-in-law of the deceased, who are said to be present at the time of occurrence and who are said to have seen the occurrence. First we may take up the evidence of Kaushalya Kumari (P.W.6). We are surprised when we go through her evidence because she is a child witness. She was about seven years old, but graphic details, in which she has given the evidence, cannot inspire any confidence. Not only she named every person, but she has ascribed to them the weapons; one having a knife and other having a dagger. Her mental capacity is rightly tested in the cross-examination, where she does not even know how many months are there in a year, how many days are there in a month and how many days are there in a week. She does not know the difference between a dagger and knife, yet she gives a virtual picture of the entire occurrence. She states that she was not scared while people were allegedly brutally assaulting her mother and she watched the whole proceeding. She says that she was all along sleeping there with her mother when occurrence took place and she kept sleeping and after her mother had died, she shouted. She then states that thereafter the village Choukidar and the Police Officer came. It is curious to note whether a seven year old person and that too a girl child can distinguish this fact unless she has been tutored. She denied the suggestion that she is not Kaushalya Devi as claimed by her. We are unable to persuade ourselves to accept this deposition as useful in any manner. It is much beyond the maturity of a seven year old child. 9. We then come to deposition of Sushila Devi (P.W.9), who is the informant. She denied the suggestion that she is not Kaushalya Devi as claimed by her. We are unable to persuade ourselves to accept this deposition as useful in any manner. It is much beyond the maturity of a seven year old child. 9. We then come to deposition of Sushila Devi (P.W.9), who is the informant. Even she was about 20 years of age. It is she, who had given the statement, on the basis of which the first information report was registered. She had given motive, but in her examination-in-chief itself, she gives a totally different motive altogether. She states that appellant Lakshman Sah wanted to grab certain lands, which the deceased was not permitting and it is because of that appellant-Saryug Sah conspired and killed the deceased, which is totally a different story. She admits in her cross-examination that the appellants are immediate neighbours. She states that when she heard the cry of her younger sister Kaushalya Kumari (P.W.6), she came out of her room and saw the appellants brutally assaulting her mother. If we compare her statement with the statement of Kaushalya Kumari (P.W.6), it would be noticed that she had clearly stated, if it is to be believed, that she screamed after her mother had died, whereas, this witness (P.W.9) states that when she came out, she found the appellants brutally assaulting her mother with knife, dagger, kicks etc. She admits in her cross-examination that she made no attempt to save her mother. She states that the assault continued for about half an hour and after her mother died they all shouted and then Chulhiya Devi (Gotani-sister-in-law of the deceased), came with other persons, when the accused persons ran away. It was suggested to her that there was no dispute and it was at the instance of one Ramashish Jha (P.W.7) that the appellants were falsely implicated, but she denied those suggestions. 10. The third witness is P.W. 5 Chulhiya Devi (sister-in-law of the deceased), who lives in the adjacent house, which opens into the Angan (court-yard) of the deceased. It was suggested to her that there was no dispute and it was at the instance of one Ramashish Jha (P.W.7) that the appellants were falsely implicated, but she denied those suggestions. 10. The third witness is P.W. 5 Chulhiya Devi (sister-in-law of the deceased), who lives in the adjacent house, which opens into the Angan (court-yard) of the deceased. Here again we find a big contradiction because statements of the earlier two witnesses show that upon their shouts, others came, whereas, when Chulhiya Devi was examined, she states that upon hearing hulla, she came to the court-yard of the deceased and found that 50-60 people were already there, but at the same time, she states that when she came, she saw the appellants assaulting the deceased. The two are clear contradictions; inasmuch people assembled much later when news went out in the village about the death of the deceased, but by then the accused persons had long gone. In her chief itself, she also admits that it was Sushila Devi (P.W.9), who had identified the persons and weapons held by them. Then in the cross-examination, she admits that she had not given any statement to the Investigating Officer; inasmuch as she had fainted, but she states that she had given entire statement to the Choukidar. Again in cross-examination, she states that she did make statement before the Investigating Officer, but she states that by that time as Sushila had not disclosed any name, she had not disclosed any name to the Investigating Officer. These are absolute bundle of confusion and bundle of lies. Thus, on the evidence of these witnesses, who are the only eye witnesses to the occurrence we find that they are totally unreliable. They tried to make out a story and why they did so and at whose instance would now be clear. 11. In this connection, we may refer to the evidence of P.W.4 Siyaram Sah (brother of Bindeshwar Sah, who happens to be the husband of the deceased). He states that while he was in the field during night caring his maize crop, he heard shouts. He came and P.W. 9-Sushila Devi (informant) disclosed the incident to him. He states that there was some land dispute between the parties. What was that he does not know. He states that while he was in the field during night caring his maize crop, he heard shouts. He came and P.W. 9-Sushila Devi (informant) disclosed the incident to him. He states that there was some land dispute between the parties. What was that he does not know. In his cross-examination, in the very opening line his attention was drawn to Ramashish Jha (P.W.7), who was standing at the door of the court room at that time. He very candidly says that Ramashish Jha is neither related to any of the family members nor a witness in the case, but as we would see that he (Ramashish Jha) has come as P.W.7 and has played an important part in the whole episode. He is a witness to the fardbeyan. His son is a witness to the inquest report and repeatedly different witnesses have admitted his role in the episode. 12. We would notice at this juncture that the two defence witnesses have given out that in the village there are two groups; one led by Ramashish Jha (P.W.7) and another by one Mr. Gupta. The deceased was supported by Ramashish Jha, who had been instrumental in framing this entire episode and that is why when P.W.4 the brother-in-law of the deceased was confronted with his name, he did everything to conceal the same as of no consequence. 13. We then have two important witnesses. The first witness is the Mukhiya Chandradeo Prasad (P.W.11). As noted above, he is a witness to the fardbeyan. As noted earlier, there is a consistent plea of the prosecution that there was a Panchayati and the accused persons were not ready to abide by the same, but when this Mukhiya comes to depose in the court, he clearly states that upon hearing of shouts, he came to house of the deceased, but no one had then disclosed the names of the appellants or the manner of assault. He pleaded total ignorance of any dispute with respect to land between the parties. Then we have the Investigating Officer, who is Binod Das (P.W.12). He states that he had heard rumour in the night about the death and had come to enquire about the same. He recorded the fardbeyan and sent it to the Police Station for registering the F.I.R.. Then we have the Investigating Officer, who is Binod Das (P.W.12). He states that he had heard rumour in the night about the death and had come to enquire about the same. He recorded the fardbeyan and sent it to the Police Station for registering the F.I.R.. However, as it was very late in the night, he waited and it was in the morning that he made the inquest report. That is surprising. If one is to accept that the fardbeyan was recorded at 1A.M., then surely the inquest report could have been prepared then and there, but it was prepared at 6.30A.M. If in the fardbeyan, which was recorded almost six hours earlier, the genesis of the occurrence, the manner of occurrence and the manner of death had been recorded, then why in the inquest, it was recorded only `some one pressing the chest caused the death’. All these remained unexplained. 14. In our view, learned counsel for the appellants rightly submitted that, in fact, at the time when inquest report was drawn up, nothing was known. It is thereafter that a story was cooked up at the instance of P.W.7 Ramashish Jha and fardbeyan was drawn up. When we see the further cross-examination of the Investigating Officer, the defence is able to establish contradiction in the two statements as given in the course of investigation under section 161 of the Code of Criminal Procedure ( for short `the Code’) and those as made in the Court. Those remained unexplained. In the court, the witnesses have disclosed the names of the appellants as the assailants and having seen them, but the Investigating Officer clearly states with reference to the case-diary that the names had not been disclosed in their further statements. This also falsifies the fardbeyan because fardbeyan has been recorded first giving the names and the manner of occurrence and it was rightly so then in further statements recorded thereafter, the names ought to have been repeated. This clearly shows that the fardbeyan was a document prepared much later. In the earliest statements as were recorded under Section 161 of the Code why the witnesses did not disclose the names of the assailants, which were apparently supplied later. 15. This clearly shows that the fardbeyan was a document prepared much later. In the earliest statements as were recorded under Section 161 of the Code why the witnesses did not disclose the names of the assailants, which were apparently supplied later. 15. Another important aspect to be noted here is that in the evidence of the three material witnesses it is stated that the village Choukidar came and then he went to inform the Police. Therefore, if the Choukidar was there, when people had assembled and the whole story had been narrated, it was expected that he would go and disclose the same to the Police, but when Investigating Officer is cross-examined, he admits that the Choukidar did not disclose to him the names of the assailants or the manner of assault. The Choukidar, who is shown as a charge-sheet witness, was examined as a defence witness being D.W.1. He clearly states that upon hearing the news of death, he went there. No names were given nor the manner of assault as being alleged was at all disclosed. This clearly falsifies the entire prosecution case. 16. Now, if we refer to the evidence of the Doctor, who conducted the post-mortem, he says that the allegation was of brutal assault by knife and dagger, kicks etc. The Doctor (P.W.13) says that there is no external injury whatsoever i.e. not even a scratch what to talk of assault by knife and dagger. The cause of death is internal brain haemorrhage followed by suffocation. This clearly shows that death was not homicide. The Choukidar (D.W.1) clearly states that a lady had been ill for quite some time. Suggestions to various witnesses were given that the deceased had been suffering from tuberculosis (T.B.). This, if taken into account, would explain how deceased died and why there was no injury on the person of the deceased. This could explain why initially no name was given but subsequently a story is supplied. 17. In such a view of the matter, we have no option but to hold that the prosecution has first even failed to prove that there was a homicide. A natural death due to prolonged illness has been made to look as if it was a homicide and people of immediate neighbourhood with whom there appears to be some serious differences in the family were falsely implicated. A natural death due to prolonged illness has been made to look as if it was a homicide and people of immediate neighbourhood with whom there appears to be some serious differences in the family were falsely implicated. We have no doubt about the innocence of the appellants. We regret that the learned trial court ignored the important parts of the post-mortem report and the vital contradictions and took into account only those parts, which pointed to the guilt of the accused. 18. In our view, the duty of the court was to find out the truth from the evidence on record and not to find out any excuse to convict a person. If the evidence did not support the finding of guilt, it is not open to the Court to ignore part of the evidence and then convict a person as consequences thereof. For any person, these are very serious matters. It has grave consequences. It is a different matter that the appellants from day one were on bail and continued as such even in this appeal thus did not suffer much. 19. As a result of the above, we have no option, but to allow this appeal and set aside the judgment of conviction and sentence as passed by the trial court. The appellants i.e. appellants no. 1, 2, 3 and 4 are acquitted of the charges levelled against them and they are discharged from the liability of their bail bonds. ?