JUDGMENT : Samarendra Pratap Singh, J. Both Criminal Appeals No. 593 and 499 of 2011, arise out of common judgment of conviction dated 27.04.2011 and order of sentence dated 05.05.2011, passed by the Additional Sessions Judge cum FTC No.5, Banka in Sessions Trial No. 873 of 2009 arise out of Chandan (Anandpur) Police station Case No. 44 of 2009. 2. The appellant Pradeep Mandal has been convicted under section 302 of the Indian Penal Code (herein after referred to as ‘the Code’), whereas appellant Kalawatia Devi @ Bedani Devi has been convicted under sections 302/34 of the IPC. However, both the appellants have been sentenced to undergo rigorous imprisonment for life and a fine of Rs.50,000/- and in default of payment of fine, to further undergo rigorous imprisonment for one year. 3. The prosecution case, as set out in fardbeyan of Radhika Devi PW 6, aged about 38 years, wife of deceased Aghanu Mandal, resident of village Jatwara, Police Station Chandan (Anandpur), district Banka, recorded by the SHO Mr. Hari Nandan Paswan, Anandpur outpost, camp Jatwara, at 7 PM at her house situated at Jatwara village, is as follows:- (i) The informant in the fardbeyan stated that on 28.4.2009 at about 5 PM, her husband Aghanu Mandal was removing Chachra made of bamboo from the door of his house. In the meantime, her Gotini Kalwatia Devi @ Bedani Devi along with her two sons Birendra Mandal and appellant Pradeep Mandal came and began to abuse him. When he protested, accused Birendra Mandal and the appellant Kalawatia Devi caught him, whereupon the appellant Pradeep Mandal struck with his knife on his chest and elbow. Informant’s husband fell on the ground and shortly died. (ii) Occurrence was witnesses by informant’s son Ramdeo Kumar PW 2, Ashish Hari Mandal (not examined) and Naresh Mandal (not examined). (iii) Cause of occurrence is said to be a dispute with regard to partition of land, which was coming from before. 4. Police after investigation submitted charge sheet bearing Charge sheet No.60 of 2009 against accused Pradeep Mandal, Birendra Mandal and Kalawatia Devi @ Bedani Devi. 5. The prosecution, in order to establish its case, has examined four witnesses. Out of these four witnesses, PW 1 is Kartik yadav, who is hearsay witness and inquest report witness. 4. Police after investigation submitted charge sheet bearing Charge sheet No.60 of 2009 against accused Pradeep Mandal, Birendra Mandal and Kalawatia Devi @ Bedani Devi. 5. The prosecution, in order to establish its case, has examined four witnesses. Out of these four witnesses, PW 1 is Kartik yadav, who is hearsay witness and inquest report witness. PW 2 is Ramdeo Mandal, who is son of the informant as well as the deceased and eye witness to the occurrence, as per informant’s version in the FIR. PW 3 is Radhika Devi. She is wife of the deceased and the informant of the case. PW 4 is Dr. Mustafa Ansari, posted as Medical officer in Sub divisional Hospital, Banka. He conducted post mortem examination on the dead body of the informant’s husband. 6. PW 2 Ramdeo Mandal is son of the deceased and the informant (PW 3). He stated that the occurrence took place on 28.4.2009 at 5 PM and at the relevant time he was at his house. He saw the accused Birendra Mandal and appellants Pradeep Mandal and Kalwatia Devi having caught her father. He again stated that it was Kalwatia Devi who had caught his father, whereas appellant Padeep Mandal struck four times with his knife on different parts of his father on account of which he fell down and died. Cause of occurrence is land dispute. 7. In the cross-examination, PW 2 stated that generally he stays outside, for earning his livelihood. At times, he goes to Jaipur, Rajasthan for 4/5 months. He stated that no one was present in the house except him, when the occurrence took place. At the time of occurrence, he was in the kitchen of his house. The house was made of 5-6 rooms and his father was sitting close to the doors of the kitchen room. In the meantime, appellant Pradeep Mandal came and dragged his father to his courtyard. When he tried to save his father, appellant Pradeep Mandal scared him showing his knife and pushed him on the ground. Appellant Pradeep Mandal bolted the doors of his house from outside. He further stated that his father did not make any alarm as the appellant had pushed clothes in his mouth. PW 2 further stated in his cross-examination that he and his mother, who were locked inside the house, raised hulla. Appellant Pradeep Mandal bolted the doors of his house from outside. He further stated that his father did not make any alarm as the appellant had pushed clothes in his mouth. PW 2 further stated in his cross-examination that he and his mother, who were locked inside the house, raised hulla. However, no villager was present in the neighbour as they had gone to field. 8. PW 3 Radhika Devi is the informant and wife of the deceased Aghanu Mandal. She stated that the occurrence took place in the evening at about 5 PM on 28.4.2009 and at the relevant time she was in her house along with her husband Aghanu Mandal. In the meanwhile, the appellant Kalwatia Devi, Pradeep Mandal and accused Birendra Mandal came to the courtyard of her house. Birendra Mandal and Kalwatia Devi caught hold her husband while appellant Pradeep struck him with knife four times on his chest on account of which he fell down. Thereafter, she and her son Ramdeo Mandal (PW 2) carried him to the doors of the house, where he died. 9. In the cross-examination, she stated that her husband and husband of appellant Kalwatia Devi were own brothers, whereas accused Birendra Mandal and appellant Pradeep Mandal were sons of Kalwatia Devi. She stated that her in-laws had two properties, one at Chandan and other at Jamui. Property of Jamui had been gifted to her husband by her mother-in-law, whereas her father-in-law had gifted the property of Chanan to Kalwatia Devi, which was the cause of dispute between the prosecution and the accused side. She stated that her house is surrounded on all four sides and the entrance is from east. On hearing the death of her husband, this witness did not come out, rather she along with family remained inside at one place. She later stated that she was at the house when the two appellants and accused Birendra Mandal had come and quarreled. She further narrated that only one accused indulged in marpit and she had raised hulla before marpit. Thereafter, hundreds of people had gathered on the place of occurrence. She also stated that people had gathered after hulla. She reiterated that the appellants struck four times with his knife. 10. It appears from the evidence of this witness that she is not very definite about the place of occurrence. Thereafter, hundreds of people had gathered on the place of occurrence. She also stated that people had gathered after hulla. She reiterated that the appellants struck four times with his knife. 10. It appears from the evidence of this witness that she is not very definite about the place of occurrence. In the fardbeyan she stated that occurrence took place just outside her house, whereas in her cross examination she states that the occurrence took place inside her house. 11. PW 4 Dr. Mustafa Ansari, who was posted as the Medical Officer in the Sub-divisional Hospital, Banka at the relevant time, on 29.4.2009, conducted the post mortem examination on the dead body of Aghanu Mandal S/o Late Rameshwar Mandal. In course of examination, he found following injuries on the person of the deceased:- (i) Two penetrating wounds on left anterior auxiliary wall one inch below the nipple. (ii) 3” x ¼” visceral deep. Both wounds were at a distance of 1/8” from each other. Internally, there was haemothorax. 6 left coastal cartilage cut. Left ventricle punctured through and through, caused by sharp pointed edged weapon. Cause of death has been assigned to the cut injuries sustained by the deceased on to the vital organ. 12. In the cross-examination, he stated that the deceased sustained only two injuries and the cause of death of informant’s husband was the two cut injuries sustained by him caused by sharp pointed edged weapon. 13. It would appear from the evidence of PW 2, Ramdeo Mandal, son of the deceased, that he was inside the house and it was bolted from outside when the accused persons killed his father outside the house and when he came out, he found his father dead and accused persons having fled. So far as PW 3 Radhika Devi is concerned, we find that she has changed the place of occurrence in her statement/deposition made during the trial. In the fardbeyan, she stated that occurrence took place just outside her house when her husband was removing bamboo Chachra from the door, whereas in the cross-examination, she stated that the occurrence took place inside her house. It is her version during the trial that the accused persons entered into the house, accused Birendra Mandal and Kalwatia Devi caught hold her husband Aghanu Mandal and appellant Pradeep Mandal gave four knife blows on his chest on account of which he fell down. It is her version during the trial that the accused persons entered into the house, accused Birendra Mandal and Kalwatia Devi caught hold her husband Aghanu Mandal and appellant Pradeep Mandal gave four knife blows on his chest on account of which he fell down. Thereafter PW 3 along with her son Ramdeo Mandal PW 2 carried her husband/the injured to the door, where he died. Thus place of occurrence mentioned in fardbeyan differs from one mentioned by this witness during the trial. 14. Besides this, the Investigating officer has also not been examined which could unfold the actual place of occurrence. Furthermore, it is the definite case of PW 3 Radhika Devi that the appellant Pradeep Mandal struck four times with his knife on the chest of her husband, whereas PW 4, the doctor has only found two injuries on the person of the deceased in the post mortem examination, which also creates doubt about the reliability of the evidence of this witness. 15. We are thus of considered view that the prosecution has been able to prove its case beyond all the reasonable doubt. 16. In the result, both appeals are allowed and the impugned Judgment of conviction and order of sentence passed against both appellants of these two appeals, above named, are set aside. They are acquitted of the charges. 17. It appears that the appellant Pradeep Mandal {in Criminal Appeal (DB) No.593 of 2011} is in jail custody, therefore, he (Pradeep Mandal) is directed to be released forthwith, if not wanted in any other cases. So far as the appellant Kalawatia Devi @ Bedani Devi {in Criminal Appeal (DB) No.499 of 2011} is concerned, she is on bail, therefore, she is discharged from the liabilities of her bail bonds. Appeals allowed.