JUDGMENT : (Delivered by Hon'ble Arvind K. Tripathi, J.) 1. The present criminal appeal has been preferred by appellant Sheo Laik Yadav and six others namely Ram Laik Yadav, Jai Kishun Yadav, Bhikham Yadav, Gorakh Yadav, Ram Nath Yadav and Madan Yadav against the impugned judgment and order of conviction and sentence dated 5.2.1983 in S.T. No.198 of 1982 passed by Special Judge/Additional Sessions Judge, Ballia convicting and sentencing the appellants under section 302 to undergo rigorous imprisonment for life and under section 201 IPC rigorous imprisonment for seven years with the direction that both the sentences shall run concurrently. 2. The appeal was admitted and prayer for bail was allowed on 21.2.1983 passed by this Court. 3. Mr. Barmeshwar Nath Tiwari, learned Advocate, appeared on behalf of appellants, Mr. Mahendra Singh Yadav, learned AGA appeared on behalf of State and Mr. Arvind Kumar Shukla and Mr. Purshottam Dixit, learned Advocates, appeared on behalf of the complainant. 4. We heard learned counsel for the parties and judgment was reserved on 9.8.2016. 5. The appellants no.2 and 3, namely Ram Laik Yadav and Jai Kishan Yadav both the sons of Sheo Dhari Yadav died during pendency of appeal hence against them appeal stands abated vide order dated 8.8.2016. 6. The brief facts of the case are that on a written information of Mr. Har Govind Yadav S/o Sheo Prasad R/o Adhsijuwa, Gumani Ahir ka Tola, P.S. Reoti, District Ballia, FIR of this case was registered at case crime no.192 of 1982, under section 302/201 IPC at P.S. Bairia, District Ballia. According to first information report, Ext. Ka-3, informant Har Govind Yadav, father of deceased, on 6.8.1982 at about 6.30 A.M. three daughters of accused Ram Laik Yadav were going to the field carrying cow-dung, somehow one of the three daughters get pushed by deceased Shree Ram hence bucket containing cow-dung fell down. They went to their house and made complaint, thereafter, their family members and collateral started searching Shree Ram to beat him. When Shree Ram came to know, he left the village, went to another village to conceal himself at one place or the other. They went to their house and made complaint, thereafter, their family members and collateral started searching Shree Ram to beat him. When Shree Ram came to know, he left the village, went to another village to conceal himself at one place or the other. On the date of complaint in the morning when complaint was made i.e. on 8.8.1982 while informant was searching his son Shree Ram reached to the old Bakulha station there one Dulla Yadav S/o Raghubir, Saral Yadav S/o Parma Yadav and others R/o Fateh Rai ka Tola informed him that on 7.8.1982 at 9.00 P.M. near the Dhala of Fateh Rai Ka Tola his son Shree Ram was beaten to death by all the seven accused persons of his village namely Sheo Laik Yadav, Ram Laik Yadav, Jai Kishun Yadav, Bhikham Yadav, Gorakh Yadav, Ram Nath Yadav and Madan Yadav by lathi and thereafter, concealed the dead body to some unknown place. Thereafter, his dead body was searched along-with other persons even at the bank of river Ghaghra and nearby places but nothing could be revealed hence information was given to the police station to register the report and take appropriate action. 7. On the basis of said written report chick FIR Ext. Ka-3 was registered and entry was made in the G.D. Ext. Ka-4. The investigation was taken over by P.W. 6, Sub Inspector Jamuna Singh Yadav. On the same day he recorded the statement of the informant at the police station and he visited the village recorded the statements of Sheo Shanker Yadav @ Dhela, Sheo Dulari Devi, Meena Devi, Ram Dayal Yadav and Smt. Saral, thereafter, he arrested accused Ram Laik and Bhikam Yadav from their houses at 11.15 P.M. and also recorded their statements. On 9.8.1982 Investigating Officer recorded the statement of Dhulla Yadav and inspected the place of occurrence, prepared the site plan proved as Ext. Ka-5. Accused Jai Kishun Yadav was also arrested from his village and his statement was recorded on 10.8.1982. He searched the dead body but it could not be recovered. Thereafter, on 12.8.1982 at about 8.00 A.M. the dead body of Sri Ram was found at the bank of river Ghaghra. Inquest report was prepared, which was proved as Ext. Ka.-6. The dead body was sealed and the same was sent through constable to the mortuary for post-mortem examination. He searched the dead body but it could not be recovered. Thereafter, on 12.8.1982 at about 8.00 A.M. the dead body of Sri Ram was found at the bank of river Ghaghra. Inquest report was prepared, which was proved as Ext. Ka.-6. The dead body was sealed and the same was sent through constable to the mortuary for post-mortem examination. The other requisite papers were also sent, site plan was prepared of the place from where the dead body was recovered, which was proved as Ext. Ka-11, thereafter, on 25.8.1982 the Investigating Officer recorded the statement of remaining accused in the district jail, Ballia, before that on 9.8.1982 he had inspected the torches of the witnesses and prepared separate memo, which was exhibited as Ext. Ka-12 and 13. 8. After completing the investigation and after necessary formalities and after receiving the post-mortem report, the charge-sheet was submitted against the accused appellants on 25.8.1982 (Ext. Ka-14). After receiving the charge-sheet the case was registered before the Magistrate, concerned, and thereafter, case was committed to the court of sessions. The charges were framed under section 302/201 IPC. The accused appellants pleaded not guilty and claimed to be tried. 9. The post-mortem was conducted by Dr. R. K. Srivastava, pathologist, district hospital, Ballia, P.W. 7, on 13.8.1982 at 12.30 P.M., who noted seven anti mortem injuries on body of deceased Sri Ram Yadav. The time of death was shown about 4-5 days back and according to information of Doctor death was due to shock and haemorrhage as a result of anti mortem injuries. The heart was fractured stomach and small intestine was found empty. 10. The prosecution to prove its case examined as many as seven witnesses. Har Govind Yadav, informant, and father of deceased Shree Ram Yadav, was examined as P.W. 1, Dulla (eye witness) was examined as P.W. 2, Sheo Shanker @ Dhela, eye witness but not named in the FIR, as P.W. 3, Lal Ji Mishra, who proved the chik FIR and G.D. entry as P.W. 4, Meghoo Ram, Constable, who carried the dead body to the mortuary as P.W. 5, Shri Jamuna Singh Yadav, Investigating Officer, was examined as P.W. 6, Dr. R. K. Srivastava, who conducted post-mortem examination was examined as P.W. 7. R. K. Srivastava, who conducted post-mortem examination was examined as P.W. 7. After evidence was closed by the prosecution statement of accused appellants were recorded under section 313 Cr.P.C. The accused appellants denied the charges and in defence claimed that witness Dhela in order to save him from being implicated created a false story and in connivance with the police falsely implicated. In defence they have also examined one witness as D.W. 1, Nithali, and also filed some documents. D.W. 1, Nithali, claimed to be one of the relative of the deceased family. The inter-se relationship of the accused is that accused Sheo Laik Yadav, Ram Laik Yadav, Jai Kishun Yadav are real brothers, who are sons of Sheo Dhari Yadav, accused appellant Bhikham Yadav is son of appellant Sheo Laik Yadav and accused Gorakh Yadav and Ram Nath Yadav are sons of accused Jai Kishun Yadav, accused Madan Yadav is the son of accused Ram Nath Yadav. 11. Learned counsel for the appellants challenged the impugned judgment and order of conviction and sentence and submitted that the accused appellants are of the same family. Informant is father of the deceased but witnesses belong to different village and of same family. He further submitted that the prosecution story appears to be doubtful and the prosecution has not come with clean hand. After recovery of the dead body false story was cooked up to implicate the accused appellants, who are innocent and who were not involved in the incident. There was no attempt to search Shree Ram Yadav (deceased) from 06.08.1982 to the morning of 08.08.1982 and even no complaint was filed regarding the alleged threat from side of Ram Laik Yadav or any other family members or missing of Shree Ram Yadav. According to prosecution case, the search was made at the bank of river Ghaghra on 8.8.1982. Subsequently, recovery was shown from there on 12.8.1982. He further submitted that the prosecution story is doubtful and incorrect that no blood was found on the spot. All the injuries were only on left side, which is unnatural. If seven persons were assaulting by lathi then it was also unnatural that no head injury was found though intention was to kill him. P.W. 1, informant, is not eye witness and any of the independent witnesses were not examined. The mother of the deceased was also not examined. All the injuries were only on left side, which is unnatural. If seven persons were assaulting by lathi then it was also unnatural that no head injury was found though intention was to kill him. P.W. 1, informant, is not eye witness and any of the independent witnesses were not examined. The mother of the deceased was also not examined. Witness Dhela is an interested witness. In plot no.383 existence of Machan was shown but the Machan was not shown in the site plan. Torch was not produced before the court. There is contradictory statement when witnesses Dhulla reached and saw the incident. There is a contradiction in the statement of Dhulla, P.W. 2 and Dhela, P.W. 3. According to P.W. 2, Dulla after hearing the cry he rushed towards the place of incident, flash the torch and saw that accused appellants were beating Sri Ram by lathies near Bakulha old railway station and besides him the incident was witnessed by Sarali, Ram Dayal and Sheo Shanker @ Dhela. Further in cross examination P.W. 2, Dulla, stated that after hearing the cry he rushed towards the place from where he heard the voice and from some distance, when he flashed his torch he saw that accused were tying body of deceased Sri Ram with lungi. They were at a distance of 30-40 steps and witness Dhela was at 30-40 steps away towards west. However, there is a contradiction with the statement of P.W. 3. According to him accused killed deceased Sri Ram beating him by lathi and after hanging the body with the help of lathi they went towards west. He cried and after hearing his cry Sarali and Ram Dayal reached there and Dhulla also reached there. Hence according to him Dulla reached there when they have gone with the body. No ligature mark was found on legs and as per information body was tied with lungi and the same were carried out with the carriage of lathi. He further contended that in fact no one has seen the incident. None of the witnesses of that area has been examined, who saw the incident. No ligature mark was found on legs and as per information body was tied with lungi and the same were carried out with the carriage of lathi. He further contended that in fact no one has seen the incident. None of the witnesses of that area has been examined, who saw the incident. It appears that deceased Sri Ram was habitual of teasing girls and trying to criminally assault them hence was beaten by some unknown persons and only due to suspicion and enmity the entire family, father, sons and grand sons were falsely implicated in the present case. Since the case of the prosecution is doubtful and not proved beyond doubt and as such impugned judgment and order of acquittal is liable to be set aside. 12. Learned AGA and learned counsel for the complainant opposed the prayer. Learned AGA submitted that there was no suggestion and any question put to the witnesses in cross examination as no such incident took place or there was no such motive. Even from statement of D.W. 1, it is clear that deceased was involved in teasing and in the present case the motive was that deceased tried to criminally assault one of the daughter of accused appellant Ram Laik Yadav. There was no reason of false implication. There were seven injuries found on body of deceased Sri Ram and the injuries were sufficient to cause death. The witnesses witnessed the incident after hearing the cry of the deceased in the moonlight and torch light. The incident took place in the night of 7.8.1982 at about 9.00 P.M. while informant was going in search of deceased Sri Ram and witnesses also proceeded to inform regarding the incident to the family members of the deceased. They met at the place near old railway station in the morning of 8.8.1982 and the first information report was lodged on the same day i.e. on 8.8.1982 at 19.10 (7.10 P.M.). 13. They met at the place near old railway station in the morning of 8.8.1982 and the first information report was lodged on the same day i.e. on 8.8.1982 at 19.10 (7.10 P.M.). 13. Learned counsel for the complainant further submitted that in the present case since there are eye witnesses hence motive is not so relevant but in the present case there is a motive because Sri Ram Yadav tried to criminally assault one of the daughter of accused appellant Ram Laik Yadav and all the accused are of the same family, who were searching Sri Ram Yadav when they came to know regarding the incident of teasing one of the girl of their family. Both the eye witnesses have fully supported the prosecution case. The deceased was beaten by lathi and thereafter, he was thrown into the river. As soon as the informant came to know on the same day report was lodged at the police station. 14. In rejoinder learned counsel for the appellants again submitted that had the appellants were involved in the incident they should have left their house but after the first information report was lodged Gorakh Yadav and Bhikam Yadav were found present in their houses from there they were arrested and motive alone or only threat is not sufficient to held the accused appellants guilty. The appellants were falsely implicated merely on the basis of suspicion and enmity. Though prosecution failed to prove the case beyond reasonable doubt, however, they have been convicted and sentenced by the impugned order hence they are liable to be acquitted. In support of his contention he relied the following judgments AIR 2011 SC 2545 Sunil Rai @ Paua @ Ors. Vs. Union Territory, Chandigarh, Para 13, 1996 Crl. L. J. 4265 Shyam Babu and others Vs. State, AIR 2011 SC 795 Durbal Vs. State of U.P., in Para 15 and 16, Ishwar Singh Vs. State of U.P. AIR 1976 SC 2423 para 6 and 7. 15. Learned counsel for the appellant further relied the judgment of the Apex Court in case of Sharad Birdhi Chand Sarda Vs. L. J. 4265 Shyam Babu and others Vs. State, AIR 2011 SC 795 Durbal Vs. State of U.P., in Para 15 and 16, Ishwar Singh Vs. State of U.P. AIR 1976 SC 2423 para 6 and 7. 15. Learned counsel for the appellant further relied the judgment of the Apex Court in case of Sharad Birdhi Chand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622 : 1984 SCC (4)116 on the point that the facts and circumstances, which were not put to the accused appellant in his examination under section 313 Cr.P.C. have to be completely excluded from consideration but learned counsel for the appellants did not point out any of the facts and circumstance, which was relevant but not put to the appellants, which caused prejudice to them. 16. Considered the submissions of learned counsels for the parties and perused the record. 17. Learned counsel for the appellants submitted that when appellants were convicted in main offence under section 302 IPC then they are not liable to be convicted under section 201 IPC also. However, in case of Kalawati and another Vs. The State of Himachal Pradesh 1953 AIR 131 the Hon'ble Apex Court considered and followed the judgment of the Privy Council in case of Begu Vs. King Emperor that in a charge of murder under section 302 a conviction under section 201 without a further charge being made was warranted by the provisions of section 237 Cr.P.C. In that case it was observed by the Apex Court that acquittal of kalawati under section 201 IPC was so intimately related to the charge of main offence, and as it took place only for the reason that she was held guilty of murder, there is no bar to the restoration of the conviction under section 201 IPC. 18. In case of Durbal Vs. State of U.P. (Supra) in para 15 and 16 it was observed by the Hon'ble Apex Court that the lantern and the torch lights though were alleged to have been seized but were not produced in the court, in the circumstance it becomes highly doubtful as to whether those torch lights and lanterns were actually seized during the course of investigation or not by the Investigating Officer. In case of Iswar Singh (supra) learned counsel for the appellant relied para 6 and 7 and submitted that none examination of the some witnesses would not matter if the witnesses examined unfolded the prosecution story and statement of P.W. 1 was based on hearsay. He further submitted that in the present case also the presence of alleged eye witnesses at the place of occurrence was doubtful and independent and material witnesses were not examined before the trial court and the motive alone is not sufficient for conviction. Nithali Yadav was examined as D.W.1 according to his statement he was married with sister of Ragubeer, who had three sons Parma, Dullah, Somaru. Buddhan was his grand-father and daughter of Buddhan was his Phuva. Mangli was married with Ram Chela and Sonia was married with Ram Dayal. Parma was married in the house of Hargovind, informant. Hence P.W. 2 is related to complainant. Shiv Shanker @ Dhela, P.W. 3, is son of Ram Chela and Mangri daughter of Buddhan hence P.W. 2 and 3 were related and interested witnesses, however, according to D.W. 1, Nithali Yadav, deceased Sri Ram was a bad character and this was complaint against him. 19. As far as the P.W. 1, Hargovind is concerned, he is not eye witness. The only witnesses of fact, who were examined to prove the allegation are P.W. 2, Dulla Son of Ragubeer and P.W. 3, Shiv Shankar @ Dhela. According to P.W. 2 he was present on Machan to supervise his agricultural field but admittedly Machan was not shown in the site plan to show whether the witnesses were actually present when they heard cry and voice of the deceased. This is also admitted fact that torch was not produced before the court by which light the witnesses saw the incident from a distance of about 30-40 steps. The witness P.W. 2 claimed that in the plot no.383 where he was present belongs to him but the defence filed copy of the khasra to show that it did not belong to P.W. 2 rather name of different person was recorded. The witnesses were interested person. When there was a threat from side of the accused no complaint was made by the complainant or any other family members. The witnesses were interested person. When there was a threat from side of the accused no complaint was made by the complainant or any other family members. When informant was going for search of deceased Sri Ram Yadav the alleged witness P.W. 3 was also coming to communicate regarding the incident and incidentally they met in the morning of 8.8.1982 near the old Bakulha railway station. According to statement of P.W. 1, Hargovind Yadav, when four persons namely Dhela, Dalalla, Saral and Ram Dayal met near old Bakulha railway station he made query from them regarding his son Sri Ram then they informed that accused appellants beaten his son to death at about 9.00 P.M. near Bakulha railway station on 7.8.1982 but even after that information the P.W. 1 did not inform to the police and did not file any complaint and the FIR was lodged at 7.10 P.M. 20. It also appears to be unnatural that when P.W. 2 and 3 saw the incident at about 9.00 P.M. on 7.8.1982 neither they raised voice nor chased the assailants nor communicated to the complainant or any family member of the deceased, so immediately search could have been made. Even no attempt was made to verify whether Sri Ram was alive or to communicate any one for search of Sri Ram so medical aid might have been provided in case he was alive. No blood was found on the spot though it was not relevant because it was a public place and due to frequent movement of public the sign of blood might disappeared. As per allegation seven persons assaulted by lathi but all the injuries were on left side and no injury was caused on head though all the seven persons assaulted with intention to kill him, which also appears to be unnatural. The witness, Dulla, at the time, of incident was about 64-65 years of age and Machan was at about 150 steps away from the place of incident. After hearing the cry he rushed towards the place of incident having torch in his hand and he saw that accused appellants were assaulting Sri Ram with lathi near old Bakulha railway station and apart from him Saral, Ram Dayal Yadav and Dhela had also witnessed the incident. After hearing the cry he rushed towards the place of incident having torch in his hand and he saw that accused appellants were assaulting Sri Ram with lathi near old Bakulha railway station and apart from him Saral, Ram Dayal Yadav and Dhela had also witnessed the incident. The accused killed Sri Ram by beating with lathies and by hanging him with the aid of lathi, they carried him towards west and when he cried Saral, Ram Dayal and Dhela also reached their so this statement is contradictory to the statement of P.W. 3. It appears that he reached subsequently. The torch was not produced before the court. Earlier he stated that Sri Ram had taken meal with him, subsequently there was improvement in the statement when it was found in the post-mortem that stomach and small intestine were found empty and he stated that deceased had taken only one grass of meal. P.W. 2 Dulla at one place stated that after hearing the cry he rushed towards the place of incident, flashed his torch and saw the accused appellants were beating deceased Sri Ram by lathi near the Bakulha old railway station. In cross examination he stated that after hearing the cry when he rushed towards the place of incident in the light of torch he saw that accused were tying the body of deceased Sri Ram with lungi. They saw from a distance of 30-40 steps. He and witness Dhela returned to their Machan and keep on sitting whole night but did not raised voice or informed regarding the incident to any other person even it was not communicated to Chaukidar or Sarpanch and in the morning he informed regarding the incident. 21. According to P.W. 3, Sheo Shanker @ Dhela deceased Sri Ram came to his house in the night and in the morning he went somewhere else. Again he came in the night and requested to accompany him upto his house, however, as he has decided to left the village and go to the Kolkata hence he was going along-with deceased Sri Ram when incident took place but after the incident he returned to house he did not communicate regarding the incident either to the complainant or any other family members of the deceased or even to police or Chaukidar. As per averment regarding incident he informed to the complainant next day in the morning of 8.8.1982 and FIR was lodged in the evening of 8.8.1982 and dead body was recovered on 12.8.1982. These circumstances shows that none of the witnesses saw the incident. Considering the contradictions and conduct of the witnesses, it appears that it was a blind murder. They might have been implicated due to suspicion because the prosecution failed to prove its case beyond reasonable doubt and as such accused appellants are entitled for the benefit of doubt. 22. Hence, in view of the above noted discussion, the impugned judgment and order of conviction and sentence dated 5.2.1983 in S.T. No.198 of 1982 passed by Special Judge/Additional Sessions Judge, Ballia, is hereby set aside. 23. Accordingly, the present criminal appeal is hereby allowed. The appellants shall be released from jail forthwith, if they are not wanted in any other case provided they furnish bail bonds and sureties in compliance of section 437-A Cr.P.C. 24. Office to communicate this order to the court concerned to ensure compliance.