ORAL JUDGMENT Per: HON’BLE MR JUSTICE NAVANITI PRASAD SINGH, J. This appeal has been filed by the sole appellant who has been convicted under Section 302 of Indian Penal Code (IPC) and sentenced to imprisonment for life while having been acquitted of various other charges including charges in relation to Sections 364, 201, 153A of IPC. The learned Additional Sessions Judge VII, Bhagalpur has passed the said order of conviction and sentence in Sessions Trial No 145 of 1990 dated 10th of October, 1991. 2. The prosecution case is based upon a written information given with the thumb impression of the informant Md Hamid (PW 5) originally filed before the Sanhaulla Police Station (PS) later forwarded to Kahalgaon PS on 11.11.1989, inter alia, stating that on 29.10.1989 while the informant (PW 5) Md Hamid alongwith seven other persons were returning from Bhagalpur to their village Ghogha, two persons decided to return by train to Bhagalpur from Ghogha station itself. The remaining six persons then from Ghogha station started walking to their village. The moment they reached Janidih, they were allegedly surrounded by seven to eight persons. Allegedly, the appellant was armed with the kata (similar to a butcher knife). Out of the six persons in the accompaniment of the informant, appellant is supposed to have cut the neck of Md Zafir and Md Jumman on the spot. They died. Then those people took two of them that is Sheikh Maru and Md Quasim to an orchard. Informant tried to escape when some of those people tried to apprehend him. Kumhar Pandit of village Hanuwara came to the informant’s rescue stating that he was his man. Informant’s life was spared. The written information clearly states that the occurrence is of 29.10.1989 at 11 am. It is undated and it does not contain any explanation for the delay because it is being filed on 11.11.1989 before Sanhaulla PS though the place of occurrence falls within Kahalgaon PS. It is, accordingly, forwarded by the Officer-in-charge, Sanhaulla PS Chandranandan Jha (PW 8) to Kahalgaon PS for registering First Information Report (FIR) where, on the same day that is 11.11.1989, FIR is registered and Upendra Narayan Singh (PW 7) is entrusted with investigation. Upon completion of investigation, chargesheet is filed only against the appellant and several unknown for offence, inter alia, under Section 302 of IPC. Upon completion of investigation, chargesheet is filed only against the appellant and several unknown for offence, inter alia, under Section 302 of IPC. Upon cognizance being taken, the case was committed to the Court of Session for trial where charges were framed under five heads to which the appellant pleaded not guilty and required to be tried. 3. The charges were for wrongful restraint under Section 341, for abduction under Section 364, for murder under Section 302, for concealing evidence under Section 201 and for disturbing communal harmony under Section 153A of IPC. 4. As noted above, the appellant has been acquitted of all other charges as not established except Section 302 of IPC. 5. In order to establish the prosecution case, prosecution examined eight witnesses. Though not relevant, defence examined two witnesses. PW 1 is Md Mustaqim who was accompanying the informant and was allegedly present at the place of occurrence. He is named in the FIR. PW 2 is Md Ainuddin Ansari. He is one of the persons who had accompanied the informant but had returned to Bhagalpur before the incident occurred. He is tendered. PW 3 is Bibi Majida who claims to be the wife of Sheikh Maru who is one of the persons who was allegedly kidnapped and taken to the orchard by the appellant and others. PW 4 Sayeed Ansari is the father of one Jumman Mian who was allegedly killed by the appellant with the kata. PW 5 Md Hamid, as noted above, is the informant. PW 6 Quddus Ansari is also the person who accompanied the informant but returned to Bhagalpur before the incident. He is tendered. PW 7 Upendra Narayan Singh is the IO and PW 8 is Chandranandan Jha who was the Officer-in-charge of Sanhaulla PS when the written information was received and on his instructions, it was forwarded to Kahalgaon. He is otherwise a formal witness. 6. We may now examine the evidence in greater detail. From what has been noted above, it would be seen that there are only two persons who are witnesses to the occurrence that is PWs 1 and 5 being Md Mustaqim and Md Hamid respectively. Md Mustaqim (PW 1) states that he had seen the appellant cut the neck of two of the persons. He (witness) ran away from the place. He identified the appellant in the dock. Md Mustaqim (PW 1) states that he had seen the appellant cut the neck of two of the persons. He (witness) ran away from the place. He identified the appellant in the dock. In the cross-examination, he states that police examined him after two months of the institution of FIR. He states that in the two intervening months, he had met the relations of the deceased but he had not met any lawyer or any police personnel. He states in the cross-examination that the appellant is a bus conductor and he had seen him in bus at Ghogha bus stand. He is suggested that before the case was instituted, camp had been established at various places to look into complaints and provide for compensation to the riot victims. In paragraph 7 of his cross-examination, he is specifically confronted with his statement before the police where he is supposed to have stated that it was people who later disclosed that one of the persons who had killed on the date of occurrence was the appellant. He denies it. He again denies this in paragraph 11 of his cross-examination. He denied the suggestion that this false case has been instituted only to get compensation wrongly. We then have PW 2 Md Ainuddin Ansari who has been tendered and who, as noted above, returned to Bhagalpur and was not there at the scene of occurrence. PW 3 Bibi Majida alleges that she is the wife of deceased Sheikh Maru who had been kidnapped and taken to the orchard allegedly never to be found and presumed killed. She admits that her husband used to work as a labourer at Bhagalpur. He used to go to work from the village at 12 noon and used to return by about 4 pm. This is of some importance because as per the prosecution case, the incidence took place at 11 am when they were returning from Bhagalpur and not otherwise. She admits that she had not seen the occurrence. She assumes that as her husband is not traceable, he had been killed by the rioters. She admits that she had not complained to the police about disappearance of her husband. In cross-examination, in the end, she admits that she had received a compensation of Rs 1 lac and before she received, she was questioned at the PS. She assumes that as her husband is not traceable, he had been killed by the rioters. She admits that she had not complained to the police about disappearance of her husband. In cross-examination, in the end, she admits that she had received a compensation of Rs 1 lac and before she received, she was questioned at the PS. She was suggested that her husband is working in Pakistan and she has joined in this case only to claim compensation wrongly which she denies. PW 4 Sayeed Ansari claims to be the father of Jumman Ansari who is said to have been killed at the relevant time. He states that his son was killed during riots. He states that he was returning from Bhagalpur to the village. PW 5, the informant Md Hamid had informed him that his son had been killed. He admits that because of riots, he had not informed the PS with regard to death of his son. This is of some significance because the date of occurrence is 29.10.1989 whereas for the first time, the report is made after 12 days on 11.11.1989. In the cross-examination, he admits that Hamid (PW 5) had told him about the death of his son and he suspected that he had been killed in the riots. We then have the informant (PW 5) Md Hamid. He states that he had lodged the information with the PS. He names eight persons who started from Bhagalpur including the four out of whom two were allegedly killed and two disappeared. He now states that there were 10 to 15 people who had surrounded him when they came out of Ghogha station. He identifies the appellant. He now states that having killed two persons and having abducted two others, those persons tried to chase the informant. The informant was then rescued by one Pandit whom he does not even recognize. He does not even know where he belongs. This is of some importance because in the FIR, the person is identified as Kumhar Pandit of village – Hanuwara. He admits that the incidence took place at 11 am. He states, in his examination-in-chief, that he had given information only after peace had returned after the riots. He does not even know where he belongs. This is of some importance because in the FIR, the person is identified as Kumhar Pandit of village – Hanuwara. He admits that the incidence took place at 11 am. He states, in his examination-in-chief, that he had given information only after peace had returned after the riots. In his cross-examination, he is clearly given a suggestion that in his further statement, in course of investigation to the police, he had stated that people had told him that one of the assailants was the appellant. He denies the same. This would be of some importance because the IO (PW 7) is then confronted and he states that the informant (PW 5) had in fact disclosed that he had learnt the name of appellant from others. In his cross-examination, he admits that on the date of occurrence, he had gone to the PS. No action was taken. On the next day, the Mukhiya drew up an application which was then taken to the PS and process started. This again is of some importance because nothing like this is stated in the FIR which is taken to a wrong PS after twelve days of the occurrence. He admits in his cross-examination that in Sanhaulla Bazar itself, Sanhaulla PS is located. He now states that there were 12 to 15 people who had surrounded him when he was rescued by the Pandit. He admits in the cross-examination that the place of occurrence is only about 100 to 150 yards from the railway station. He admits that after the riots when compensation was announced, it is much thereafter that this FIR was drawn up and lodged. He admits that the FIR had been drawn up by the Mukhiya Shahjahan who unfortunately has not been examined. He denies the suggestion that this false case has been belatedly lodged only to claim false compensation and no such occurrence had taken place. PW 6 Quddus Ansari is tendered as he was one of the persons who returned to Bhagalpur by train and had not seen the occurrence. PW 7 is Upendra Narayan Singh, the IO. He states that the FIR was originally lodged at Sanhaulla PS which was forwarded from there to Kahalgaon PS and it was lodged on 11.11.1989 and, on the same day, received at Kahalgaon PS where it was registered formally. PW 7 is Upendra Narayan Singh, the IO. He states that the FIR was originally lodged at Sanhaulla PS which was forwarded from there to Kahalgaon PS and it was lodged on 11.11.1989 and, on the same day, received at Kahalgaon PS where it was registered formally. He admits that he had been taken to the place of occurrence by the Dafadar but had not made any note thereof in the case diary. He states that he had interrogated various persons of Janidih village where the occurrence had taken place. He acknowledges having taken the statement of PWs 1, 2, 3, 4, 5 and 6. Having received the supervision note, he admits that he has written for seeking sanction from the District Magistrate. In his cross-examination, he states that the Ghogha police outpost is near the Ghogha railway station. Ghogha police outpost is in Janidih village itself which is the place of occurrence. This is of some importance because it is in the immediate vicinity of the police outpost that the place of occurrence is situated yet no information is given there on the day of occurrence itself. He admits that the original riots had actually taken place on 25.10.1989 which is of some significance because the present incident is of 29.10.1989. He admits that he had inspected the place of occurrence but made no notes in the case diary. He admits that in course of investigation, he had interrogated PW 1 Md Mustaqim. PW 1 Md Mustaqim, in his further statement to the police, had stated that he learnt from the people that the appellant was one of the persons in the group who had allegedly killed the persons. He admits that PW 1 had not stated to the Officer-in-charge in clear terms that he recognized the appellant as one of the assailants. Similarly, the IO (PW 7) says about PW 5 Md Hamid that PW 5 Md Hamid had not categorically stated that he had seen and identified the appellant as the assailant. He had learnt the name from the people. He admits that he had made no attempt to hold test identification parade. He admits that he made no enquiry with anyone as to in which bus company, the appellant was working and where. He had learnt the name from the people. He admits that he had made no attempt to hold test identification parade. He admits that he made no enquiry with anyone as to in which bus company, the appellant was working and where. PW 8 Chandranandan Jha is the Officer-in-charge of Sanhaulla PS who states that when the FIR was received, he was the Officer-in-charge of Sanhaulla PS and the place of occurrence fell within Kahalgaon PS. He had ordered for forwarding the same. 7. Though not very relevant, there are two defence witnesses who have been examined. Both of them have been examined for the purpose that the appellant never worked as a bus conductor or in any capacity in relation to bus. 8. Learned counsel for the appellant has pointed out that admittedly the riots had taken place on 25.10.1989. This incident is alleged to have taken place at 11 am on 29.10.1989 (Exhibit-1/PWs 1, 5). The police outpost was hardly one hundred yards from the place of occurrence yet no one complains, no information was given to any body for over twelve days. It is admitted that in between, State Government announced compensation for riot victims. It is, thereafter on 11.11.1989, that this FIR was lodged at Sanhaulla PS even though the place of occurrence was not within its jurisdiction. Why no action was taken earlier is not at all satisfactorily explained. It is apparent that only after compensation was announced, people became active otherwise the police outpost was within a short distance and still no information was given. He then points out that though the FIR was registered on 11.11.1989 and is said to have been sent to the Court on 12.11.1989, the Chief Judicial Magistrate (CJM), Bhagalpur gets to see the FIR for the first time on 25.11.1989 but what is more curious is a reference to the lower Court records would show that it is formally registered in the Court of CJM only on 06.12.1989. We would not like to consider the delay after the FIR was registered by the police on 11.11.1989 for it was disturbed times at Bhagalpur but surely the prosecution has to explain why from 29.10.1989 to 11.11.1989, they waited especially when two persons were allegedly killed and two taken away probably to be killed. None of the relations even made an attempt to contact the police. None of the relations even made an attempt to contact the police. The police outpost was within shouting distance of the place of occurrence. What we find more interesting is that the informant admits that it is after compensation was announced that the Mukhiya drew up the information and he merely put his thumb impression thereof. He names the Mukhiya but prosecution chooses not to bring the Mukhiya to the Court in course of trial. Then both PWs 1 and 5 were supposed to be eye witnesses. In their further statement to the IO (PW 7), as noted in the case diary, they stated that they were told the name of the appellant by other people. In other words, they had not specifically identified the appellant which is contrary to their later evidence in the Court. This is a very serious contradiction coupled with the unexplained delay, it casts grave doubt upon the prosecution version. Further, as per the FIR, two persons were killed on the spot and two were abducted and had become traceless and, thus, assumed dead. That was the prosecution version but only two relations turned up to claim and support the prosecution and that too in relation to two persons, one who was killed and one who was abducted. The prosecution gave up its story with regard to the other two. PW 5 Md Hamid admits that it is only after Government announced compensation for which prosecution was pre-requisite that the complaint was made in the PS. We then have to see the conduct of the two relations. We have PW 3 Bibi Majida claiming to be the wife of Sheikh Maru who was allegedly abducted. It is strange that if her husband had gone a missing, she took no steps to inform the police or any authority in the meantime. She left it to the informant to lodge the FIR even though she admits that the informant had informed her immediately. She further states that her husband used to work at Bhagalpur from 12 noon and come back at 4 pm which would imply that at 11 am, he would be at home but the informant states that at 11 am, they were returning from Bhagalpur to go to their village. The two do not corroborate each other rather contradict. She further states that her husband used to work at Bhagalpur from 12 noon and come back at 4 pm which would imply that at 11 am, he would be at home but the informant states that at 11 am, they were returning from Bhagalpur to go to their village. The two do not corroborate each other rather contradict. It is clearly suggested to her that merely for compensation, she had agreed to join this case. We then have the father (PW 4) of Jumman Mian who is supposed to have been killed at the spot and this was informed by the informant but he takes no action to inform the police or any other authority and leaves it to informant to lodge an FIR after twelve days. 9. The Mukhiya, who drew the FIR has not been examined and there is no explanation forthcoming for the same. PWs 3 and 4 having known about the murder of victims on 29.10.1989 itself, the police outpost being virtually next door, the Mukhiya Shahjahan known to them, why no immediate action was taken is not explained? Action is taken only after compensation is announced. 10. Considering these facts, we are constraint to hold that even if two persons are to be assumed to be dead, bodies never having been recovered, the manner in which the prosecution has set up the story is not believable at all. It does not inspire confidence. The appellant cannot be held guilty of having committed the offence for which he has been charged and convicted. The evidence does not substantiate the allegations. There are far too many unexplained gaps. 11. Thus, we have no option but to allow this appeal and set aside the conviction and the sentence as awarded to the appellant. He is freed from his bail bonds. Appeal allowed.