JUDGMENT : Arvind K. Tripathi, J. Mr. P.C. Srivastava, learned Advocate appeared on behalf of appellants and Mr. Chandra Jeet Yadav appeared on behalf of State. 2. We have heard the learned counsel for the parties and judgment was reserved on 2nd November, 2016. 3. The instant criminal appeal has been preferred by 7 appellants namely Indradeo, Chaturi, Mathuri, Durg Vijay, Ram Nayan and Ram Achal and 7th Dukhi Pasi against the impugned judgment of conviction and sentence dated 1.2.1984 passed by Additional Sessions Judge/Special Judge, Azamgarh in Session Trial No. 162 of 1982 arising out of case crime no. 248 of 1979 registered under Sections 147, 148, 149, 307, 452, 324 IPC at Police Station Ahiraula, District Azamgarh. The place of occurrence has been resident of deceased Mangaru situated in Village Belwa, Bishunpur, PS Ahiraula, District Azamgarh. The distance from Police is about 7 Kilometer. The occurrence took place in the intervening night of 22nd/23rd October, 1979 at 11:30 PM. The first information report was lodged and registered by Bishun Dayal s/o Mangaru (deceased) against all the seven appellants. 4. During pendency of the appeal one of the appellant No. 5 Ram Nayan died hence appeal in respect of Ram Nayan stood abated vide order dated 6.4.2016 passed by this Court. 5. Against Dukhi Pasi no charge-sheet was submitted as he was not traceable and even defence case was that he was already dead on the date of occurrence and against dead person first information report was lodged. 6. The prosecution story according to FIR version is that on report of Bishun Dayal Harijan S/O Mangaru, deceased, report was lodged and as per FIR version he is resident of Village Belwa Bishunpur, PS Ahiraula District Azamgarh. There was a Civil dispute in respect of abadi land with Indradeo S/O Bechan of the same village. The Inderdeo has taken land of Jagdish Pandey on Batai. On that land Indradeo has got his boring of the tube-well. Subsequently when his father Mangaru returned from Calcutta, Jagdish Pandey called him and offered to transfer his land by way of sale deed in his favour and decided to registered the sale deed in favour of his father Mangaru on the next day. On that land Indradeo has got his boring of the tube-well. Subsequently when his father Mangaru returned from Calcutta, Jagdish Pandey called him and offered to transfer his land by way of sale deed in his favour and decided to registered the sale deed in favour of his father Mangaru on the next day. When Indradeo came to know this fact he was displeased and with intention to kill his father Indradeo along with his associates Ram Achal resident of village Chakia Dubey Rampur, P.S. Ahiraula, Azamgarh and Durg Vijay resident of Village Deokali, P.S. Ahiraula, Azamgarh and Chaturi Kewat, Mathuri Kewat, Ram Nayan resident of Ahiyai, PS Tahbarpur, Azamgarh, who used to visit frequently at the house of Indradeo came on with lathi, danda and chaku in the night at about 11:30 p.m. at his residence. His mother and father were sleeping in the kothari, they entered into the kothari, where their mother and father were sleeping, they surrounded them. Indradeo started assaulting his father with knife. The other persons caught hold his father, who raised voice and after hearing the alarm, he along with his mother and Shyam Bali S/O Sukhnandan, who is son of his Mausi, resident of Ahiyai had came in his house and other villagers also reached there having with lathi and torch. On there raising alarm, they flashed torch. The accused ran away leaving his father in injured condition. His father has received knife injuries on chest and arm. He carried his father on cot to Police Station, written report was handed over on which first information report was registered by Head Moherrir and the same was entered in GD at 4:30 A.M. 7. After first information report was registered, the injured Mangaru was send for medical examination, who was medically examined at 5.00 AM. The Chik FIR was proved and exhibited as exhibit Ka-16. The report was exhibited as exhibited Ka-1. Mangaru died on 23rd October, 1979 in the night at about 1.45 AM. Thereafter inquest report was prepared. The post-mortem examination was done by Dr. R.R. Rai. The Investigation of the case was taken up by Sub-Inspector Prahlad Yadav, who was examined as P.W. 3. According to prosecution case he recorded statement of deceased near bus stop before he was taken to Hospital for medical examination. He went to the spot and prepared site plan, which was exhibited as Exhibit Ka-5. R.R. Rai. The Investigation of the case was taken up by Sub-Inspector Prahlad Yadav, who was examined as P.W. 3. According to prosecution case he recorded statement of deceased near bus stop before he was taken to Hospital for medical examination. He went to the spot and prepared site plan, which was exhibited as Exhibit Ka-5. He collected blood stained (Ka-6) and simple earth. He recorded the statement of Bishun Dayal and Shyam Bali, Site plan was prepared after spot inspection, it was exhibited as Exhibit K-5. The recovery memo was prepared and exhibited as exhibit Ka-6. 8. The Investigating Officer inspected the torches of witnesses Bishun Dayal and Shyam Bali and thereafter recovery memo was prepared and the same were handed over to its owner. The recovery memo was exhibited as Exhibit Ka-1, Ka-2 and Ka-3. He searched accused persons. Accused Indradeo was arrested and his statement was recorded. Statement of one witness Kalpnath was recorded on 25.10.1979. He also inspected the torch, which was in working condition. Recovery memo Exhibit Ka-7 was prepared and torch was handed over to the witness. He get the copy of the post-mortem report on 27.10.1979. On 6th November 1979 the accused surrendered and sent to jail. He recorded statement of accused appellant Chaturi, Mathuri, Durg Vijay, Ram Nain on 6.11.1979. Statement of accused appellant Ram Achal was recorded in jail on 12.11.1979. However, one accused Dukhi Pasi was not traceable. After completing the investigation charge-sheet was submitted (Exhibit Ka-8) submitted on 21 December 1979, which was proved by investigating officer PW 3. 9. After submission of charge-sheet the matter was committed to the Court of Sessions. The Charges against accused appellants Chaturi, Mathuri, Ram Nain, Ram Achal and Durg Vijay were framed on 2nd March, 1983 by Special Judge, EC Act/Additional Sessions Judge, under Sections 147, 148, 302 r/w 149 and under section 452 IPC, the same were read over and explained to the accused appellants who pleaded not guilty and claimed for trial. 10. The charge against accused appellants indradeo was framed on the same day under section 148, 302 and 452 IPC. 11. The prosecution to prove its case, examined 8 witnesses. Bishun Dayal, informant, as PW 1, Shyam Bali the other eye witness as P.W.2, Investigating officer sub-inspector Prahlad Yadav as PW 3, Sub-Inspector Ehsan Ahmad as P.W. 4, who prepared Panchayatnama, Dr. 11. The prosecution to prove its case, examined 8 witnesses. Bishun Dayal, informant, as PW 1, Shyam Bali the other eye witness as P.W.2, Investigating officer sub-inspector Prahlad Yadav as PW 3, Sub-Inspector Ehsan Ahmad as P.W. 4, who prepared Panchayatnama, Dr. G.S. Singh, Medical Officer Incharge, P.H.G., Ahiraula, who examined injuries of Mangaru as P.W.5, Constable Abdul Hameed, who carried Mangaru with majrubi chitthi and handed over the same to the Doctor, who referred Mangaru to Sadar Hospital. Constable Jagdish Yadav was examined as P.W. 7, who carried dead body for mortuary for post mortem examination. Dr. R.R. Rai the then medical officer Sadar Hospital, who conducted post-mortem examination was examined as P.W. 8. 12. After the evidence was closed by the prosecution the statement of accused appellants were recorded under section 313 CrPC, 1973 who denied charges and pleaded that they were falsely implicated in the present case on account of enmity but they did not produce any oral evidence in support of the same. 13. Mr. P. C. Srivastava, learned counsel for the appellants challenged the impugned judgment on the following grounds :- (I) That none of the witnesses saw the incident, which was committed by unknown assailants and subsequently merely on the basis of suspicion and enmity appellants were implicated including one dead person Dukhi Pasi that is why the Investigating officer failed to trace out Dukhi Pasi. This clearly shows the false implication and concocted story of the prosecution. (II) That according to prosecution case as mentioned in the first information report, mother of informant (wife of deceased) was also sleeping in the same kothari, where deceased Mangaru was sleeping on the cot when the occurrence took place. The size of the room was about 6" x 5" feet and as per prosecution case seven persons entered into the kothari. The Accused appellant Indradeo inflicted knife injuries on chest and other parts of the body and other accused caught hold him as he tried to save him. According to statement of P.W. 1 he was sleeping, which is contrary to the first information report lodged by P.W. 1, Bishun Dayal, in which it was mentioned that after hearing the alarm raised by his father he, his mother and his cousin Shyam Bali rushed to the place of incident. According to statement of P.W. 1 he was sleeping, which is contrary to the first information report lodged by P.W. 1, Bishun Dayal, in which it was mentioned that after hearing the alarm raised by his father he, his mother and his cousin Shyam Bali rushed to the place of incident. According to P.W.2 also his Mausa Mangaru and Mausi were sleeping in the Kothari in which there was no door and when his Mausi raised alarm then they awoke at about 11:30 P.M. and rushed. The size of kothari was shown about 6" x 5" feet in which there was one cot on which deceased Mangaru was sleeping and on the ground her mother was found by the witnesses and other persons, who entered into that room. (III) That the opening of the kothari was only towards Kachcha road and door was only about 3 to 4 feet of height. Hence, 9 persons were shown to have been present in such a small room and from outside the room in the torch light the witnesses claiming to have saw the occurrence in which accused appellant Indradeo assaulted with knife and other caught hold. If the other persons surrounded and caught hold firstly it was not practical and natural conduct that in such a small room 7 persons would enter. However, even if it was correct and if Mangaru was surrounded and caught hold then how from such a small door P.W. 1 and P.W. 2 could have witnessed the incident who assaulted with knife and others were armed with lathi and danda but no injury was caused by lathi and danda. All the injuries were was caused by sharp edge weapon except one injury of abrasion on the inner side of right thigh. No blood was found on cloth of wife of the deceased though her presence was shown, she was also not examined as witness in support of the prosecution story and if she was present at the time of the incident she was the star witness. (IV) That the presence of Shyam Bali is also doubtful whose house was at the distant of at about half a mile according to P.W.1, Bishun Dayal. (IV) That the presence of Shyam Bali is also doubtful whose house was at the distant of at about half a mile according to P.W.1, Bishun Dayal. He submitted that after the alarm was raised by Mangaru and his wife according to P.W. 1 and P.W. 2 they rushed to the place of incident and saw the occurrence and another villagers also reached there. He further submitted that in examination-in-chief it was stated that after hearing the alarm, the other villagers also reached at the place of incident and when they reached there the accused ran away leaving his injured father. But none of the person including the witnesses tried to assault or apprehend any of the appellants. Even the assailants did not attempt to assault the witnesses, who saw the occurrence. He further submitted that it appears that no one saw the incident and some unknown person assaulted Mangaru, father of the informant, and subsequently when they came to know then on the next morning of 23rd October, 1979 due to suspicion and enmity appellants were falsely implicated. According to Dr. R.R. Rai, P.W. 8, the injuries no. 1 and 2 might have been caused by knife and the injuries were sufficient to cause death. After half an hour injured, who become unconscious because mensentric vessels found cut. Though mensentric vessels were cut post mortem was conducted on 26.10.1979. Though according to P.W. 5, Dr. G.S. Singh, who examined the injuries since it was not mentioned in the injury report that he was unconscious hence he might have been in a position to speak. He submitted that it was also unnatural and how investigating officer came to know regarding presence of Mangaru at bus stop, where he recorded statement. Though constable took Mangaru for medical aid to the hospital by jeep then there was no question of recording his statement as 6:10 a.m. at bus stop and the FIR was registered at 4:30 a.m. according to the prosecution case. (V) That P.W. 1, Bishun Dayal, implicated one dead person Dukhi Pasi however, Dukhi Pasi was not referred by P.W.2, Shyam Bali. The motive was also very week. There was no disputed land in question hence in view of the fact since prosecution failed to prove his case beyond reasonable doubt and as such, the impugned judgment and order is liable to be set aside. 14. The motive was also very week. There was no disputed land in question hence in view of the fact since prosecution failed to prove his case beyond reasonable doubt and as such, the impugned judgment and order is liable to be set aside. 14. Learned A.G.A. opposed the aforesaid prayer and submitted that P.W. 1, Bishun Dayal, who is son of the deceased, and P.W.2, Shyam Bali is cousin (son of Mausi), were also present on the date of the incident and sleeping beside P.W.1, Bishun Dayal and they heard alarm raised by deceased and his wife when appellants attacked and inflicted injuries. There was motive in respect of purchase of land. The FIR version and statement of witnesses were supported by medical report. There is no contradiction in the oral evidence and medical report. Apart from that statement of deceased was recorded near bus stop under Section 161 Cr.P.C., 1973 that is, Exhibit Ka-4 and after death of Mangaru the same was treated as dying declaration. There was no reason of false implication by the injured, who subsequently succumbed to injuries in Hospital. He further submitted that enmity has already been admitted by the accused appellants in their statement under Section 313 Cr.P.C., 1973 when they stated that they have falsely been implicated due to enmity. 15. Considered the submission of learned counsel for the parties. 16. According to FIR version, which was lodged by the Bishun Dayal son of deceased Mangaru at 4:30 a.m. on 23.10.1979, the incident took place at 11:30 p.m. in the intervening night of 22nd/23rd October of 1979. His father was sleeping in the kothari. After hearing the alarm raised by his father, informant Bishun Dayal, his mother and his cousin Shyam Bali, who were also staying their in his house rushed to the place of incident. According to his statement, to place correct fact, FIR was written by him. However, in the statement of P.W. 1, Bishun Dayal and P.W. 2, Shyam Bali both stated that mother of informant (wife of deceased) was also sleeping in the same kothari with deceased Mangaru. There was one cot in the kothari, area of which was about 6 feet x 5 feet. He was in osara of the house. However, in the statement of P.W. 1, Bishun Dayal and P.W. 2, Shyam Bali both stated that mother of informant (wife of deceased) was also sleeping in the same kothari with deceased Mangaru. There was one cot in the kothari, area of which was about 6 feet x 5 feet. He was in osara of the house. There were varanda courtyard with room and there was no door opening inside the house, only opening was towards Kachcha rasta and even that was of the height of about 3 to 4 feet and one has to bend over to enter and come out from the Kothari with regards to the presence of the wife of deceased there is contradictory evidence. Whether she was sleeping in the kothari or she reached after hearing of the alarm. Apart from that according to P.W 1, Bishun Dayal and P.W. 2, Shyam Bali, after hearing the alarm raised by mother of P.W.1, Bishun Dayal and his father, they saw in the light of torch, all these appellants, including one Dukhi Pasi, who has entered into the kothari. Indradeo was armed with knife and others were armed with lathi and danda. Mother of P.W.1, Bishun Dayal was lying on the floor but neither there is any averment in the FIR nor in the statement of the witnesses that she received even a single injury or any blood was found on her clothe or on her person. Though blood was found on the floor and on the wall. Even she was not examined though her name was mentioned in the list of the witnesses when charge-sheet was submitted. If wife of the deceased was present in the kothari then she was the important witness, who could have an opportunity to recognised the assailants. In such a small kothari, which was of the size of about 6 feet by 5 feet, where there was one cot on which Mangaru was sleeping, his wife was lying on the floor and in the remaining vacant area presence of seven persons shown by the prosecution, who caught hold deceased and Indradeo started inflicted knife blow. Neither there was any resistance by wife of deceased nor any injury was caused to her nor blood was found on her person and clothes. Neither there was any resistance by wife of deceased nor any injury was caused to her nor blood was found on her person and clothes. Further, according to prosecution case number of villagers reached there and accused ran away when witnesses and other villagers reached there, after hearing the alarm raised by the deceased and his wife, but no one tried to apprehend them. Further accused spared P.Ws. 1 and 2 and they did not assaulted them though accused were armed with knife, lathi and danda. When Mangaru was surrounded and caught-hold then how from such a small door from outside kothari during dark night, the witness could saw who assaulted with knife. It was stated that there was a civil dispute regarding abadi land but the main motive shows that when Jagdish Pandey offered Mangaru for transfer of is land in his favour and next day the sale deed was to be executed but no evidence was adduced to show whether there was such offer even Jagdish Pandey was not examined. The motive is not relevant when statement of eye witnesses are reliable and trustworthy but when there is an averment of motive for committing the offence then the prosecution was required to show by some evidence that there was a motive for committing murder. 17. According to statement of P.W.1, Bishun Dayal, the accused Indradeo was assaulting with knife and after inflicting one blow his father was groaning and for that period, Indradeo remained standing thereafter he used to repeat the next knife blow. There was gap of about 1 or half minute between the next knife blow. It was further stated at one place that when he saw that they were assaulting his father and apart from informant along-with his cousin Shyam Bali and other villagers residing near by his house came there but the accused appellants came out from the kothari and ran away. They did not make attempt to assault informant and Shyam Bali and the informant and Shyam Bali and others also not tried to stop them. However, at one place, he stated that after raising the alarm they and the other villagers came with lathi and torch and after hearing the alarm raised by them the accused run away from the spot leaving his injured father. 18. However, at one place, he stated that after raising the alarm they and the other villagers came with lathi and torch and after hearing the alarm raised by them the accused run away from the spot leaving his injured father. 18. When from P.H.C. Ahiraula doctor referred Mangaru, father of P.W.1, then P.W.1, Bhishnu Dayal did not go along with him to Sadar Hospital and returned to his house. According him, his mother and brother went to the hospital along with his father. Neither his statement nor statement of his mother was recorded by the Investigating Officer. The suggestion was that the first information report was lodged after consultation and registered next day, which was denied in cross-examination by the P.W.1. This was also suggested that Dukhi Pasi has already been killed by the police in encounter but he expressed his ignorance regarding the same but he clearly stated that it was incorrect that they did not know Dukhi Pasi hence Dukhi Pasi was well-known to him. Hence if he was not alive at the time of incident, then how his name was included in the first information report. Subsequently, he could not be traced out by the police even nothing was mentioned in the charge-sheet, whether investigating was pending against Dukhi Pasi or not but it is clear that no charge-sheet was filed against him because he was not available. This support the defence case that Dukhi Pasi had already died since before the incident. According to P.W. 2, Shyam Bali, is resident of other village, his presence was shown in the house. According to P.W. 2 he was called by his Mausa (Mangaru) and he came with his torch as he was having his torch and there might be delay in returning to the house. 19. According to P.W.6, Constable Abdul Hameed on 23rd October 1979 he took Mangaru and Majrubi Chithi and went to Prathmic Swasthya Kendra, Ahiraula. In cross-examination he stated that he has taken him by jeep from Ahraula hospital to Sadar Hospital. However, according to investigating officer, P.W. 3 Sub-Inspector Prahlad Yadav he recorded his statement at bus station at about 6:10 A.M. 20. According to Dr. R.R. Rai, P.W. 8, the then medical officer, Sadar Hospital, Azamgarh, who conducted post-mortem examination on 26.10.1979 since mensentric vessels was cut hence Mangaru might have become unconscious after half an hour. However, according to investigating officer, P.W. 3 Sub-Inspector Prahlad Yadav he recorded his statement at bus station at about 6:10 A.M. 20. According to Dr. R.R. Rai, P.W. 8, the then medical officer, Sadar Hospital, Azamgarh, who conducted post-mortem examination on 26.10.1979 since mensentric vessels was cut hence Mangaru might have become unconscious after half an hour. According to Investigating Officer, he recorded his statement and Mangaru was not unconscious. But according to doctor he might have not been in a position to speak at 6:10 a.m. to whom the injury was caused, according to prosecution case, at 11:30 p.m. in the night. 20.1. The incident has taken place in which Mangaru was assaulted, who succumbed to injury during treatment, which was caused by sharp edged weapon. Whether P.W.1 and P.W.2 witnessed the incident and whether the appellants have committed the offence could not be proved beyond reasonable doubt by the prosecution. 21. In view of the aforesaid discussion, appellants are entitled for benefit of doubt hence impugned judgment of conviction and sentence dated 1.2.1984 passed by Additional Sessions Judge/Special Judge, Azamgarh in Session Trial No. 162 of 1982 arising out of case crime no. 248 of 1979 is hereby set aside. Consequently appellants are acquitted from the charges levelled against them. 22. The appellants are on bail. The bail bonds and sureties are discharged provided they furnish fresh bail bonds and sureties to the satisfaction of trial court, concerned, in view of section 437-A Cr.P.C. under intimation of this Court. 23. Accordingly, present criminal appeal is hereby allowed.