JUDGMENT : RAKESH KUMAR, J. 1. Today again, on call, none has appeared on behalf of appellants. It has been noticed that earlier continuously on two dates also, none had appeared on behalf of appellants. Considering the fact that the appeal is of the year 1993, the Court thought it proper not to defer the matter and requested Miss Divya Verma, learned counsel to assist the Court, as Amicus Curiae, and thereafter, the matter was taken up. 2. The present appeal was preferred by two appellants namely Ramchandra Sahni and Sheojee Sahni against the judgment of their conviction and sentence dated 30th March, 1993 passed by Sri Ramjee Pandey, learned 5th Additional Sessions Judge, Samastipur. By the said judgment, the appellant no. 1 (Ramchandra Sahni) was convicted under Section 302 of the Indian Penal Code and was sentenced to undergo imprisonment for life, but so far as appellant no. 2 (Sheojee Sahni) is concerned, he was convicted for offence under Sections 302/34 of the Indian Penal Code and sentenced to undergo imprisonment for life. 3. The prosecution case in short is that on 04-03-1991 at about 18.30 hrs. (6:30 PM), the Sub-Inspector of Police, Krishna Chandra Singh (P.W.-10) recorded fardbeyan of Sarobar Das (P.W.5) at Pakar tree near the house of one Dina Ram. In the fardbeyan, the informant (Sarobar Das) disclosed that on the same date in the southern wahiar, he was cutting tall grass and his mother was also there and cutting grass. His daughter Asha Kumari (deceased ) was lifting cow-dung. It was about 200- 250 yards away, there was field of Ramchandra Sahni, Rajendra Sahni and others. His daughter Asha Kumari, aged about 11-12 years, while lifting cow-dung, entered into the field of Ramchandra Sahni and without permission took one cucumber, where after, she was caught by Ramchandra Sahni (appellant no. 1). He tied the neck of his daughter by rope and started to press it. On cry of his daughter, the informant’s mother, who was also cutting grass near the field, immediately went towards the place of occurrence and asked as to who was crying. Then, she saw that her granddaughter was caught by Ramchandra Sahni (appellant no. 1) and he, by the rope, was pressing her neck, whereas, son of Bhola Sahni namely Sheojee Sahni (appellant no. 2) was standing there. Then, she saw that her granddaughter was caught by Ramchandra Sahni (appellant no. 1) and he, by the rope, was pressing her neck, whereas, son of Bhola Sahni namely Sheojee Sahni (appellant no. 2) was standing there. The informant further disclosed that he was called by his mother, who was saying that the accused persons were killing his daughter. The informant disclosed that when he arrived, he saw that dead-body of his daughter was lying near the field of Ramchandra Sahni and Ramchandra Sahni & Sheojee Sahni were fleeing away. He stated that Ramchandra Sahni was carrying rope in his hand. He chased and apprehended Ramchandra Sahni, however; Sheojee Sahni fled away. The informant said that after apprehending Ramchandra Sahni, he reached near the dead-body and thereafter, he called his brother Aklu Das, who was also near the field and asked him to call others as well as carry the dead body. He stated that he was holding Ramchandra Sahni (appellant no. 1) and waiting for others. After about half an hour, his brother Dhanu Das (P.W.-6) and Ram Ashish Das (P.W.-7) came and carried the dead-body. The informant also carried Ramchandra Sahni and they came near the door of ex-Mukhiya Rajendra Thakur. His brother Dhanu Das (P.W.-6) went for informing police. The reason for the occurrence was assigned that few days before the occurrence, appellant no. 1 Ramchandra Sahni had declared that if anyone is seen in his watermelon field, he will kill him. In his fardbeyan, he claimed that with the aforesaid reason, his daughter was killed by the accused persons and to conceal the dead-body, her dead-body was thrown in kharhauri. 4. After recording fardbeyan, on the same date i.e. 04-03-1991 at about 11:30 PM, formal F.I.R., vide Chak Mehsi P.S. Case No. 20 of 1991, was registered for offence under Sections 302, 201/34 of the Indian Penal Code against both the appellants. After investigation, on 26-05-1991, police submitted charge-sheet against both accused persons and thereafter, on 25-09-1991, learned Magistrate took cognizance of the offence and the case was committed to the court of sessions and thereafter, the case was numbered as Sessions Trial No. 16 of 1992/9 of 1992. On 02-05-1992, charges were framed against the accused persons. The appellant no. 1 was charged for offence under Section 302 r/w Section 201 of the Indian Penal Code, whereas appellant no. On 02-05-1992, charges were framed against the accused persons. The appellant no. 1 was charged for offence under Section 302 r/w Section 201 of the Indian Penal Code, whereas appellant no. 2 (Sheojee Sahni) was charged for offence under Sections 302/34 r/w Section 201 of the Indian Penal Code. Since the appellants denied their charges, they were put on trial and to prove the prosecution case, altogether 10 witnesses were examined. Out of them, P.W.-2 (Most. Maini Devi), P.W.-3 (Bulanti Devi) and P.W.-5 (Sarobar Das) had claimed to be eye-witnesses to the occurrence, whereas, P.W.-1 (Mahendar Prasad), P.W.-4 (Shyam Kumar Jha), P.W.-6 (Dhanu Das) were examined as formal witnesses, who have proved certain documents, P.W.-7 (Ram Ashish Das), cousin brother of the informant, P.W.-8 (Bindeshwar Ram) are not eyewitnesses, but they have said regarding the subsequent event i.e. the fact that Ramchandra Sahni was apprehended by the prosecution side. P.W.-9 is Dr. B.B.Jha, who had conducted postmortem examination on the dead-body of deceased, whereas, P.W.-10 (Krishna Chandra Singh) is the investigating officer. After completion of the prosecution evidence, statement of appellants was recorded under Section 313 of the Cr.P.C. and thereafter, one witness was got examined from the defence side also namely Bachan Sahni. 5. Miss Divya Verma, learned Amicus Curiae, after placing entire evidence, has argued that on minute perusal of the evidences, it is clear that all other witnesses are not witness to the entire occurrence, however; P.W.-2 and P.W.-3 had developed a story, as if, they had seen the occurrence. Learned Amicus Curiae has further argued that it was consistent case of the prosecution that the appellant no. 1, while fleeing away, was carrying rope, which was allegedly used in the occurrence, but the said rope was neither seized nor produced during the trial. She has further argued that it is a peculiar case, in which, the informant had said that dead-body was found in the field of the appellant no. 1, but without waiting for the police, suo motu they carried the dead-body to the pakar tree near the door of Dina Ram. She submits that the prosecution has yet again failed to establish the preparation of the inquest report. She has argued that during trial, none of the witnesses to the inquest report were produced for examination. In the case, only investigating officer has come forward and said that he had prepared inquest report. She submits that the prosecution has yet again failed to establish the preparation of the inquest report. She has argued that during trial, none of the witnesses to the inquest report were produced for examination. In the case, only investigating officer has come forward and said that he had prepared inquest report. The inquest report, according to Miss Divya Verma, was prepared at 7:45 PM, whereas, fardbeyan was itself recorded at 6:30 PM. She submits that preparation of inquest report, much belatedly from recording of the fardbeyan, creates serious doubt on the prosecution case. It has also been argued that the investigating officer, in his deposition, has said that dead-body was sent for post-mortem examination through dead-body challan by two constables, but during trial, none of the witnesses have come forward to establish as to exactly when the dead-body was carried to the hospital. In sum and substance, it has been argued that the prosecution has miserably failed to establish the case beyond all reasonable doubts and as such, it is a fit case for interference with the impugned judgment. 6. Sri Ajay Mishra, learned Addl. Public Prosecutor has opposed the appeal and has argued that the grand-mother of the deceased is the eye-witness and she had categorically stated during her examination-in-chief as to how the appellant no. 1 was pressing rope, which was tied on the neck of the deceased, and at the same time, the appellant no. 2 (Sheojee Sahni) was holding both legs of the deceased and after noticing the informant side, both the appellants tried to flee away. However, the appellant no. 1 (Ramchandra Sahni) was apprehended and he was produced before the police from the informant side. Besides this, he submits that P.W.-2 (Mostt. Maini Devi) has also stated that she had seen the occurrence like P.W.-3 (Bulanti Devi), grand mother of the deceased. Sri Ajay Mishra, learned Addl. P.P. has also argued that in the fardbeyan itself, the P.W.-5 (Sarobar Das) had stated that after hearing alarm by his mother (P.W.-3), he arrived at the place of occurrence and he had seen both the accused persons fleeing away and at that very time, accused/appellant no. 1 (Ramchandra Sahni) was carrying a rope in his hand. He submits that this witness (informant) has stated how her mother (P.W.-3) had told about the occurrence. According to learned Addl. 1 (Ramchandra Sahni) was carrying a rope in his hand. He submits that this witness (informant) has stated how her mother (P.W.-3) had told about the occurrence. According to learned Addl. Public Prosecutor, merely on the ground that inquest witnesses were not produced or witness to the dead-body challan were not examined is not sufficient to create any doubt on the prosecution case. 7. Besides hearing learned counsel for the parties, we have examined the materials available on record. Before delving into the matter, it is necessary to firstly examine the evidence of P.W.-5 (Sarobar Das), who is informant and father of the deceased. 8. P.W.-5 (Sarobar Das), in his examination-in-chief, has stated that on the date of occurrence at about 3:00 PM, his mother Bulanti Devi (PW-3) and Maini Devi (PW-2) had given alarm and thereafter, he saw that appellant no.1/Ramchandra Sahni had tied the rope on the neck of his daughter Asha Kumari and appellant no. 2/Sheojee Sahni was holding her legs. He stated that due to tying of rope, his daughter died and thereafter, he caught Ramchandra Sahni (appellant no. 1) after chase, however; Sheojee Sahni (appellant no. 2) fled away. This witness has stated that then he called his brother Aklu and told him to call other villagers and thereafter, villagers arrived and dead-body of Asha was carried to the house of Dina Ram beneath the pakar tree. He stated that after catching Ramchandra Sahni, he was carried to the door of Mukhiya Rajendra Thakur. Thereafter, Dhanu Das (PW-6) was sent to the police station and Darogaji arrived. He stated that his statement was recorded by police officer near the door. He also claimed to have identified both the appellants, who were present in dock. In cross-examination, in paragraph – 5, he stated that while he reached at the place of occurrence, he had seen that Ramchandra Sahni was tying the neck of his daughter and Sheojee Sahni was holding her legs. He stated that his daughter was not speaking. 9. P.W.-2 (Mostt. Maini Devi) has also claimed to be eye-witness to the occurrence and stated that she, at the time of occurrence, was also cutting the grass and she had seen that Sheojee Sahni was holding leg of Asha (deceased) and Ramchandra Sahni was tying rope on the neck of Asha. He stated that his daughter was not speaking. 9. P.W.-2 (Mostt. Maini Devi) has also claimed to be eye-witness to the occurrence and stated that she, at the time of occurrence, was also cutting the grass and she had seen that Sheojee Sahni was holding leg of Asha (deceased) and Ramchandra Sahni was tying rope on the neck of Asha. Sarobar Das (informant) as well as Bulanti Devi (P.W.-3) were also present there and after Sorabar arrived, the accused (Sheojee Sahni) fled away, however; Ramchandra Sahni was caught. This witness has also admitted in her cross-examination that Sarobar Das was her gotiya and for evidence, he had called her. 10. P.W.-3 (Bulanti Devi) is the grand mother of the deceased and mother of informant. She has stated that on the date and time of occurrence, she heard the cry of Asha from kharhi field (tall grass) and when she went there, she noticed that appellant no. 1 (Ramchandra Sahni) had tied rope in the neck of Asha Kumari and Sheojee Sahni was holding leg of Asha, and due to tying of rope, Asha died. She stated that Maini Devi was also along with her and she had seen the occurrence. She stated that she called Sarobar. Thereafter, Sarobar (P.W.5) also arrived and apprehended Ramchandra Sahni, however; Sheojee Sahni fled away. She was also cross-examined. 11. P.W.-1 (Mahendra Prasad) is a formal witness. Surprisingly, he had proved the formal F.I.R., which has been marked as Ext.-1. He has admitted that same was not written in his presence. 12. P.W.-4 (Shyam Kumar Jha) is also a formal witness. He has proved the fardbeyan, which was written by Sub- Inspector of Police (Krishna Chandra Singh), which was also signed by him. This fardbeyan was got proved as Ext.-2. This witness has also stated that fardbeyan was not recorded in his presence. 13. P.W.-6 (Dhanu Das), brother of the informant and uncle of the deceased, has stated that he heard “hullah” on the date and time of the occurrence. Thereafter, he went there and seen that Sarobar Das had caught Ramchandra Sahni and he also seen the dead-body of Asha Kumari in kharhi. At that very time, number of villagers were present. In his presence, the dead-body was lifted and carried to the house of Dina Ram as well as near Pakar tree. Thereafter, he went there and seen that Sarobar Das had caught Ramchandra Sahni and he also seen the dead-body of Asha Kumari in kharhi. At that very time, number of villagers were present. In his presence, the dead-body was lifted and carried to the house of Dina Ram as well as near Pakar tree. He said that he was asked to go to police station and thereafter, he came along with police officer at the place of occurrence. He stated that in his presence, statement of Maini Devi (PW-2), Bulanti Devi (PW-3), Ram Ashish Das (PW-7), Bindeshwar Ram (P.W.-8) and Sarobar Das (P.W.-5, informant) was recorded by the police. This witness has also put his signature on the fardbeyan, which was marked as Ext.-3. This witness in cross-examination has stated that he was own brother of the informant and stated that he was informed by Binay Thakur regarding the murder of daughter of Sarobar Das. He stated that he along with Binay Thakur and other 5-6 persons went to the place of occurrence and at the place of occurrence, he had seen the dead-body lying in kharhi field. In paragraph – 4 of his cross-examination, he has further stated that on being told by Rajendra Thakur, he went to the police station for informing and he reached police station at about 4:00 PM and told about the murder of Asha Kumari. 14. P.W.-7 (Ram Ashish Das) is cousin brother of the informant and he has stated that after hearing “hullah” about the murder, he went to the kharhi field and seen the dead-body of Asha Kumari, where Sarobar Das (informant) was holding Ramchandra Sahni (appellant no. 1) and number of villagers were present there. He said that he was informed by Sarobar that appellant/Ramchandra Sahni and Sheojee Sahni had murdered Asha Kumari by means of rope. 15. P.W.-8 (Bindeshwar Ram) is also here say witness, who went to the place of occurrence after hearing “hullah” regarding the murder and he stated that at the place of occurrence, he had seen the dead-body and also Ramchandra Sahni, who was caught by Sarobar Das (P.W.-5). 16. P.W.-9 (Dr. 15. P.W.-8 (Bindeshwar Ram) is also here say witness, who went to the place of occurrence after hearing “hullah” regarding the murder and he stated that at the place of occurrence, he had seen the dead-body and also Ramchandra Sahni, who was caught by Sarobar Das (P.W.-5). 16. P.W.-9 (Dr. B. B. Jha) was posted on 05-03-1991 as Civil Assistant Surgeon at Sadar Hospital, Samastipur and on the same date at 11:30 AM, he had conducted post-mortem examination on the dead body of Asha Kumari and found the following ante-mortem injury:- “(i) Ligature mark under chin anteriorly with three finger nail marks on the right side of neck and one finger nail mark below the left ear.” He opined that death was caused by shock and asphyxia and haemorrhage due to the above-mentioned injury. He further stated that time elapsed since death within 24 hours and regarding weapon used, he stated that by hard and blunt substance, but surprisingly, this doctor has opined “like rope”. He proved the post-mortem examination report, which was marked as Ext.-4. At this juncture, it is necessary to incorporate the postmortem examination report, which is as follows:- “Ligature mark under chin anteriorly with three finger nail mark on the right side of the neck and one below the left ear. On deep dissection of the neck–sub-contaneous haemorrhage under the ligature mark and fracture of trachea & voice box (larynx) carolid arties partially proved & swollen with blood clot. Time elapsed since death is within twenty four hours. Weapon–Hard & blunt substance (rope like). In my opinion, death has been caused by shock & haemorrhage & asphyxia due to above mentioned injuries (Strangulation).” 17. P.W.-10 (Krishna Chandra Singh) was the investigating officer of the case, who had recorded fardbeyan as well as investigated the case. He proved his signature on the fardbeyan, which was marked as Ext. – 5. He also proved inquest report, which was marked as Ext.-6 and he also proved dead-body challan, as Ext.-7. In paragraph – 5 of his cross-examination, he has admitted that during investigation, he had neither found any rope nor any witness or accused had produced the rope. In the same paragraph, he has stated that after hearing rumour, he left the police station after recording station diary entry no. 61 dated 04-03-1991 towards the place of occurrence. In paragraph – 5 of his cross-examination, he has admitted that during investigation, he had neither found any rope nor any witness or accused had produced the rope. In the same paragraph, he has stated that after hearing rumour, he left the police station after recording station diary entry no. 61 dated 04-03-1991 towards the place of occurrence. Though the investigating officer had made specific statement that he voluntarily, only on rumour, rushed towards the place of occurrence, the witnesses particularly P.W.-6 (Dhanu Das) in his evidence had stated that he was asked by the informant to go and inform the police and thereafter, at 4:00 PM, he went to the police station, informed the police regarding the murder and thereafter, along with the officer in-charge, he again reached at the place of occurrence. Accordingly, either the evidence of P.W.-6 on this point can be relied or the evidence of investigating officer can be looked into, whereas, the investigating officer has stated that after hearing rumour, he had recorded the station diary entry and then he rushed to the place of occurrence. 18. Moreover, on examination of the entire record, it is evident that no plausible explanation has been given as to what was the reason for carrying the dead-body from actual place of occurrence to the door of Mukhiya. Even the witnesses, who had signed the inquest report, were withhold by the prosecution and they were not examined, as prosecution witness. Only the investigating officer had said regarding preparation of the inquest report. If in a case, where the prosecution had alleged that main occurrence had taken place in the field of appellant no. 1 (Ramchandra Sahni), what was the occasion for preparing inquest report near the door of Dina Ram, which was away from the actual place of occurrence. Even in such cases, it was necessary to examine witnesses to the inquest report, which is lacking in the present case. 19. Miss Divya Verma has rightly pointed out that fardbeyan in the case was though recorded at 6:30 P.M., no explanation has been given as to why inquest report was prepared after more than one and quarter hour i.e. 19.45 hrs. (7:45 P.M.). The inquest report categorically states that it was prepared on 04-03-1991 at about 19:45 hrs. 19. Miss Divya Verma has rightly pointed out that fardbeyan in the case was though recorded at 6:30 P.M., no explanation has been given as to why inquest report was prepared after more than one and quarter hour i.e. 19.45 hrs. (7:45 P.M.). The inquest report categorically states that it was prepared on 04-03-1991 at about 19:45 hrs. There is reason to doubt on the prosecution case on the fact that though inquest report was prepared at 19.45 hrs. (7:45 P.M.) and formal fardbeyan was recorded at 6:30 P.M. on the same date. In the inquest report, column no. 1 even case number i.e. Chak Mehsi P.S. Case No. 20 of 1991 was recorded. This defect also creates doubt regarding the prosecution case. In the fardbeyan, the informant had made specific statement that on alarm raised by his mother, he had reached at the place of occurrence where he was told by her mother that appellant no. 1 had killed her daughter by tying rope in her neck, whereas, appellant no. 2 at the time occurrence was holding legs of the deceased , but at the time of deposition, this witness-informant (PW-5) has stated as if he had seen entire occurrence i.e. right from the beginning to the end and as such, evidence of informant appears to be not credible. Similarly, the evidence of PW-2 (Maini Devi ) also appears to be doubtful. The informant had made categorical statement in his fardbeyan that after alarm being raised by his mother (PW-3), he had reached at the place of occurrence. In the fardbeyan, he had not at all stated as to whether this PW-2 (Maini Devi) was present there or not, but during trial, it appears that story was developed and this witness was introduced also as an eye-witness. Moreover, attention of the investigating officer was drawn regarding the previous statement of this witness, which has been denied by the investigating officer in paragraph – 5 of the cross-examination of the P.W.-10 (Krishna Chandra Singh), investigating officer. Similarly, the investigating officer in his cross-examination, after attention being drawn on the previous statement of P.W.-3, P.W.-7 and P.W.8, has stated that these witnesses in their previous statement had not stated like they had stated during their examination before the trial court. Moreover, the motive, which was shown in the fardbeyan, also appears to be not probable. 20. Similarly, the investigating officer in his cross-examination, after attention being drawn on the previous statement of P.W.-3, P.W.-7 and P.W.8, has stated that these witnesses in their previous statement had not stated like they had stated during their examination before the trial court. Moreover, the motive, which was shown in the fardbeyan, also appears to be not probable. 20. Miss Divya Verma, learned Amicus Curiae has rightly argued that though Dr. B.B.Jha (PW-9), who had conducted autopsy on the dead body of the deceased, in categorical term has stated that injury on the person of deceased was caused by hard and blunt substance, but to the reasons best known to the doctor, he stated that it may be caused by rope also, which appears to be not believable. 21. The Court is also in agreement with the learned Amicus Curiae that if an injury is caused by means of hard and blunt substance, it cannot be inferred that such injury was caused by rope. Meaning thereby that even the prosecution story has not been totally corroborated by the medical evidence i.e. postmortem examination report. It is also difficult to perceive that once P.W.-3 (grand mother of the deceased) had claimed that on cry of her grand daughter, while she arrived at the place of occurrence, she had not taken any step to save her grand daughter, but she started summoning her son i.e. father of the deceased (informant) only. In normal course, in such situation, it was expected that grand mother (PW-3), immediately had it been a case of murdering in her presence, would have taken immediate step firstly to save her grand daughter, but nothing has been indicated in her deposition before the court. Moreover, her claim to identify was not supported by her previous statement made before the police during investigation. 22. In view of aforesaid facts and circumstances, we are of the considered opinion that the case against both the appellants was not proved beyond all reasonable doubt and as such, extending the benefit of doubt, the appellants can be acquitted from the charges. 23. Accordingly, the judgment of their conviction and sentence dated 30th March, 1993 passed by Sri Ramjee Pandey, learned 5th Additional Sessions Judge, Samastipur in Sessions Trial No. 16 of 1992/9 of 1992 is, hereby, set aside. 24. The appeal stands allowed. 25. 23. Accordingly, the judgment of their conviction and sentence dated 30th March, 1993 passed by Sri Ramjee Pandey, learned 5th Additional Sessions Judge, Samastipur in Sessions Trial No. 16 of 1992/9 of 1992 is, hereby, set aside. 24. The appeal stands allowed. 25. On perusal of the record, it is evident that during pendency of the appeal, both the appellants were directed to be released on bail. Since their conviction and sentence has been set aside, they are hereby discharged from the liability of their bail-bonds.