JUDGMENT : RAKESH KUMAR, J. Three appellants have preferred this appeal under Section 374(2), read with Section 389 of the Code of Criminal Procedure, 1973 against the Judgment of conviction and order of sentence dated 31st May, 1993 passed by Sri R.A.Singh, learned 6th Addl. Sessions Judge, Siwan in Sessions Trial No.29 of 1990 arising out of Bhagwanpur Hat P.S. Case No.69/89. By the said Judgment of conviction and order of sentence, all the three appellants were held guilty and convicted for offence under Section 302/34 of the Indian Penal Code and they have been sentenced to undergo rigorous imprisonment for life. 2. Short fact of the case is that on 25.07.1989 at about 10.30 A.M., the Officer Incharge of Bhagwanpur Hat Police Station recorded fardbeyan of Sawalia Kumar Singh (brother of the deceased). The said fardbeyan was recorded near the door of the informant in the village Dharmraj, Police Station-Bhagwanpur, District-Siwan. In the fardbeyan, the informant disclosed that on 24.07.1989 at about 6.30 P.M., when he along with his brother Shailesh Singh was present near his door, he noticed that Janak Mahto (appellant No.3) of the same village came and he went towards eastern side up to Braham Asthan. Thereafter, he returned back and entered into the house of Bali Ram Singh (appellant no.1). Subsequently, the informant’s brother Shailesh Singh (deceased) went towards pokhar side (pond) for attending call of nature. Immediately thereafter, all the three appellants also went to pokhar side. After some time, the informant heard cry of his brother Shailesh Singh “Bhaiya Bhaiya Dauro”. After hearing the sound of his brother, the informant went towards the sound of cry and saw that aforesaid three appellants were fleeing away. However, he could not find his brother. Thereafter, one Bachchu Singh(P.W.1) of village-Sughari came running from northern side and told that all the appellants were fleeing away towards northern side and he asked as to who was crying “ Bhaiya Bhaiya”, which was replied by the informant that it was sound of his brother Shailesh, who had gone to attend call of nature. Thereafter, one Bachchu Singh(P.W.1) of village-Sughari came running from northern side and told that all the appellants were fleeing away towards northern side and he asked as to who was crying “ Bhaiya Bhaiya”, which was replied by the informant that it was sound of his brother Shailesh, who had gone to attend call of nature. Number of persons arrived there and tried to find out his brother in the bushes and water logged field, but his brother could not be traced out and he returned back to his house, where his mother Kamlawati Devi (P.W.3) told that all the aforesaid three accused persons were assaulting Shailesh and this occurrence was seen by her from her roof. He was asked by his mother to go and search. Thereafter, again the informant with others went to search for his brother Shailesh Singh. In the next morning at about 7.00 A.M. the dead body of Shailesh was found floating in the northern bank of pokhar(pond). He claimed that all the appellants had killed his brother and thrown him in the water. After recording fardbeyan on 25.07.1989 at 10.30 A.M., a formal F.I.R. was drawn on the same day at 1.00 P.M. vide Bhagwanpur Hat P.S. Case No.69/89 registered for the offence under Section 302/34 of the Indian Penal Code. 3. After lodging F.I.R., Sri Bipin Bihari Sharan, Officer Incharge of Bhagwanpur Hat Police Station himself took up investigation and after completion of investigation, on 10.10.1989 chargesheet was submitted against all the three appellants. Subsequently, on 15.11.1989 cognizance order was passed and after cognizance order was passed on 15.03.90 the case was committed to the court of Sessions and, as such, it was numbered as Sessions Trial No.29/1990. On 11.04.1990, charges were framed against all the three appellants for the offence under Section 302/34 of the Indian Penal Code. Since the appellants denied the charges and claimed to be tried, the prosecution to prove its case examined altogether 11(eleven) witnesses. Out of 11 witnesses, Bachchu Singh (P.W.1), Kamlawati Devi (P.W.3- mother of the deceased), Sawalia Kumar Singh(P.W.4- informant of the case) and Nand Kishore Singh (P.W.5) were examined as eye witnesses to the occurrence, whereas Ram Balak Singh (P.W.2) is a hearsay witness, Dr. Out of 11 witnesses, Bachchu Singh (P.W.1), Kamlawati Devi (P.W.3- mother of the deceased), Sawalia Kumar Singh(P.W.4- informant of the case) and Nand Kishore Singh (P.W.5) were examined as eye witnesses to the occurrence, whereas Ram Balak Singh (P.W.2) is a hearsay witness, Dr. Kalika Saran Singh (P.W.6) had conducted autopsy on the dead body of deceased Shailesh Kumar Singh, Bipin Bihari Sharan(P.W.7) is the Officer Incharge, who had recorded fardbeyan and conducted investigation and Firoz Ahmad (P.W.8) was the second Investigating Officer, who had only submitted chargesheet. P.Ws.9, 10 and 11 are formal witnesses. 4. After the prosecution evidence, statement of all the three appellants under Section 313 of the Code of Criminal Procedure was recorded and, thereafter, to disprove the case defence side also examined three witnesses, namely, (i) Satya Narain Rai (D.W.1)- local chowkidar, (ii) Jaleshwar Rai (D.W.2)- grand-father of the deceased and (iii) Braj Kishore Singh (D.W.3), who was examined as formal witness. 5. Sri Y.C.Verma, learned Senior Counsel, assisted by Sri Awadhesh Kumar Pandey, learned counsel for the appellants after placing the entire evidence has argued that on examination of the entire evidence, it is established that all the three appellants were falsely implicated in this case since father (P.W.2) of the deceased, who is own brother of appellant no.1, was not having good relation with him. It has been argued that falsity of the case is evident from the conduct of the prosecution. Of course, as claimed by the witnesses, the occurrence had taken place at 6.30 P.M. on 24.07.1989, there is no explanation as to why fardbeyan was got recorded on the next date i.e. 25.07.1989 at 10.30 A.M. that, too, much after recovery of the dead body from pokhar(pond), which was found at about 7.00 A.M. on 25.07.1989. He has argued that the Chowkidar of the village, who has been examined as D.W.1, namely, Satya Narain Rai, was required to be examined by the prosecution as witness, but with oblique motive he was not shown as chargesheeted witness. He has argued that the Chowkidar of the village, who has been examined as D.W.1, namely, Satya Narain Rai, was required to be examined by the prosecution as witness, but with oblique motive he was not shown as chargesheeted witness. He submits that even Bipin Bihari Sharan, Investigating Officer (P.W.7) has accepted in his evidence that on 25.07.198l, he was informed by local Chowkidar, namely, Satya Narain Rai regarding finding of a dead body floating in the pokher(pond) and on the basis of his information, the Investigating Officer had made a Station Diary Entry and, thereafter he rushed to the place, where a dead body was lying. In categorical term, the Investigating Officer has stated that the Chowkidar had not stated as to whether the occurrence was seen by any person or not. Only he gave information regarding a dead body lying in the pokhar (pond). Since the Chowkidar was not cited as prosecution witnesses, the defence took pain to examine the Chowkidar as defence witness and the Chowkidar, who was examined as D.W.1, admits in categorical term that he heard from villagers/passersby that Shailesh Singh was murdered and his dead body was lying in the pokhar, but none had said about the culprits. Sri Verma, learned Senior Counsel has further argued that though it is consistent case of prosecution that after hearing the sound of cry and after noticing three appellants fleeing away, the informant with number of villagers tried to search the victim, but none of the co-villagers were examined on behalf of the prosecution to support the prosecution case. In the case, some outsiders were introduced to be eye witnesses. P.W.1-Bachchu Singh is resident of a village, which is about one mile away from the village of the informant. This witness (P.W.1) claimed that he had come to the village of the informant to attend call of nature and at that very time, he had seen three appellants fleeing away. Similarly, he has argued that Nand Kishore Singh was also introduced as eye witness and he was examined as P.W.5. This witness (P.W.5) is of the village- Kherma, which is far away from the informant’s village. Similarly, he has argued that Nand Kishore Singh was also introduced as eye witness and he was examined as P.W.5. This witness (P.W.5) is of the village- Kherma, which is far away from the informant’s village. Moreover, this witness was not cited as witness in the chargesheet nor his statement under Section 161 of the Code of Criminal Procedure was recorded during investigation by the Investigating Officer and this was the reason that even the learned trial court had disbelieved the evidence of P.W.5. 6. In this appeal, on earlier occasion, since there was non-appearance on behalf of the appellants, we had requested Sri Amrit Anunay, learned counsel to assist the Court as Amicus Curiae. Of course, subsequently, Sri Verma, learned Senior Counsel, assisted by Sri Awadhesh Kumar Pandey, learned counsel for the appellants had intervened and argued the case, but learned Amicu Curiae has also argued that the circumstances suggest that none had seen the occurrence and entire thing was fabricated only after P.W.2- Ram Balak Singh arrived in the village. P.W.2- Ram Balak Singh is the father of the deceased and in his deposition he had accepted that on the date of occurrence, he was not in the village, rather he was in the district of Gopalganj and he arrived on 25.07.1989 i.e. on the next date of the occurrence. According to Sri Amrit Anunay, learned Amicus Curiae, entire case appears to be false and fabricated, which has been concocted as per instruction of P.W.2 Ram Balak Singh. 7. On the basis of aforesaid submission, it was argued by learned counsel for the appellants that it was out and out a result of false implication and, as such, impugned Judgment of conviction and order of sentence is liable to be set aside. 8. Sri Ajay Mishra, learned Addl. Public Prosecutor opposing the appeal has argued that of course, in the case, the informant has not claimed to be eye witness, but his evidence suggests that prior to the occurrence, three appellants had followed the victim and after hearing sound of cry of the victim, this witness had rushed the place of occurrence and had seen three appellants fleeing away. He submits that the informant in his fardbeyan is very much categorical on the point that though he could not trace out the victim and returned to his house, thereafter his mother Kamlawati Devi, who is P.W.3, had explained as to how she had seen the occurrence. Sri Mishra, learned Addl. Public Prosecutor submits that the evidence of P.W.3-Kamlawati Devi i.e. mother of the victim, was sufficient to hold all the three appellants guilty. Sri Mishra, learned Addl. Public Prosecutor submits that P.W.3 had made categorical statement right from the very beginning that from her roof, she had seen assault made by three appellants on her son. He further submits that P.W.3 in her evidence had made categorical statement that for whole night of the occurrence, she was coming up and down and she was restless. According to Sri Mishra, the evidence of P.W.3 as well as the evidence of doctor are sufficient to hold them guilty and, as such, the Judgment of conviction and order of sentence is not required to be interfered with. 9. Sri Madheshwar Singh, learned counsel, who has appeared on behalf of the informant, adopting the submission of learned Addl. Public Prosecutor, has further argued that the appellants were having greedy eye on the landed property and this was the reason that the appellants in a well-designed manner had eliminated the son of P.W.2-Ram Balak Singh. 10. Besides hearing learned counsel for the parties, we have minutely examined the entire evidence on record. It would be necessary to reiterate that what witnesses have stated during trial. In the case, the informant Sawalia Kumar Singh has been examined as P.W.4 and in his evidence, he has stated that on 24.07.1989 at about 6.30 P.M. when he along with his younger brother Shailesh Singh (deceased) was present near his door, Janak Mahto (appellant no.3) came from eastern side and went up to Braham Asthan. Thereafter, he returned and entered into the house of Bali Ram Singh (appellant no.1). After some time, his brother Shailesh told him that he was going to attend call of nature in the northern side. At that very time, his mother was on the roof. Immediately thereafter, Janak Mahto (appellant no.3), Bali Ram Singh (appellant no.1) and Anil Singh (appellant no.2) followed Shailesh. After some time, Shailesh (deceased) started crying “Bhaiya Bhaiya Dauro”. After some time, his brother Shailesh told him that he was going to attend call of nature in the northern side. At that very time, his mother was on the roof. Immediately thereafter, Janak Mahto (appellant no.3), Bali Ram Singh (appellant no.1) and Anil Singh (appellant no.2) followed Shailesh. After some time, Shailesh (deceased) started crying “Bhaiya Bhaiya Dauro”. After hearing sound of his brother, he ran towards him and saw all the appellants fleeing away towards northern side. In the meanwhile, Bachchu Singh (P.W.1) arrived running and inquired as to why three appellants were fleeing away, which was replied by him and thereafter Sawalia Singh made hectic effort to search for his brother and after sun set he returned to his house, where his mother informed that she had seen all the three appellants from her roof while assaulting the deceased and asked the informant to go and again search. Thereafter, he again went with villagers to search for his brother. He stated that along with him, Pasupati Singh, Mahavir Mahto, Nathuni Singh, Chawal Singh, Musafir Sah went and searched Shailesh, but he could not trace out. On the next date, at about 7.00 A.M. on the bank of pokhar(pond), the dead body of Shailesh Singh was found floating. After arrival of the police, the dead body was fished out from the water. He stated in paragraph-3 of his examination-in-chief that in the night itself, he had sent Chowkidar to the Police Station. However, P.W.4- Sawalia Kumar Singh stated that on the next date, he came to know that the Chowkidar had not gone to the Police Station. In the same paragraph i.e. paragraph-3, he stated that about 15 days prior to the date of occurrence, appellant no.1 Bali Ram Singh had threatened his father for compromise of a case and threatened that if it is not done, he will kill his son. In his cross-examination, in paragraph-4, he further stated that the appellant no.3 Janak Mahto and appellant no. 1 Bali Ram Singh, both had gone to jail in a case of docoity and he accepted that in the year 1982 itself in respect of ancestral property, partition had already taken place. 11. In his cross-examination, in paragraph-4, he further stated that the appellant no.3 Janak Mahto and appellant no. 1 Bali Ram Singh, both had gone to jail in a case of docoity and he accepted that in the year 1982 itself in respect of ancestral property, partition had already taken place. 11. P.W.1-Bachchu Singh, resident of village Sughari, has stated in his deposition that at the time of occurrence, he had gone to attend call of nature near the Pokhar(pond) and he heard sound of cry of the victim, which was coming from the orchard of the informant and he had also seen all the three appellants fleeing away and, thereafter, met the informant (P.W.4). Of course, he is not an eye witness to the occurrence, but he had come to support as if he had seen the appellants fleeing away. However, in his cross-examination, he has admitted that he was not having any relation in the village Dharmraj i.e. the village of the informant. He further accepted that village-Dharmraj is about one mile away from the village-Sughari. His evidence appears to be doubtful due to the reason that it is difficult to comprehend as to how from his village, which was about one mile away, this witness had come to the village of the informant for attending call of nature. 12. Similarly, P.W.5-Nand Kishore Singh, who was also of the village-Kherma, which was far away from the village of the informant, had come forward to claim as if he had seen all the three appellants fleeing away. It is pertinent to notice that this witness Nand Kishore Singh (P.W.5) was not shown as witness in the chargesheet nor his statement under Section 161 of the Code of Criminal Procedure was recorded during investigation and, as such, it appears that this witness was introduced as witness on the point that he had seen all the three appellants fleeing away. His evidence appears to be not believable. 13. So far as P.W.3-Kamlawati Devi (mother of the victim) is concerned, it is necessary to examine as to what she has stated in her evidence. This witness stated that on 24.07.1989 at about 6.30 P.M., she was on her roof along with her grand-son and at that very time, her both sons Sawalia and Shailesh were sitting near the door. So far as P.W.3-Kamlawati Devi (mother of the victim) is concerned, it is necessary to examine as to what she has stated in her evidence. This witness stated that on 24.07.1989 at about 6.30 P.M., she was on her roof along with her grand-son and at that very time, her both sons Sawalia and Shailesh were sitting near the door. She stated that appellant no.3, Janak Mahto came from eastern side and entered into the house of Bali Ram Singh (appellant no.1). Shailesh at that very time went to attend call of nature. Janak Mahto (appellant no.3) after coming out from the house of Bali Ram Singh (appellant no.1) followed him and called Shailesh from back side and both Janak and Shailesh went towards norther side. Thereafter they were followed by appellant no.1 Bali Ram Singh and appellant no.2 Anil Singh. All the three appellants along with Shailesh went to Pokhar side (pond), where there were small mango trees and all the three appellants started assaulting Shailesh by fists. She claimed that she raised alarm from her roof itself and called Sawalia (informant). However, in the meanwhile, Sawalia had already rushed towards sound of cry. After ten minutes, Sawalia (P.W.4) returned and told her that he had seen Janak, Bali Ram and Anil (all the three appellants) fleeing away towards northern-eastern corner and Shailesh was not found. She claimed that she had informed Sawalia (P.W.4) and she had told Sawalia (P.W.4) that Janak, Bali Ram and Anil had assaulted Shailesh by fists. About 20-25 villagers assembled there and she asked the villagers to search for Shailesh but he could not be traced out. After half an hour all persons returned back. In paragraph-5 of her examination-in-chief, she stated that she asked Sawalia (P.W.4) to go and inform Chowkidar. In paragraph-9 of her cross-examination, she accepts that Bali Ram Singh (appellant no.1) was her Bhaisur (elder brother of her husband) and she denied the suggestion that she was having any step son. She also reiterated that she was the only wife of P.W.2-Ram Balak Singh. In paragraph-20 of her cross-examination, she stated that she did not recollect as to whether she had stated before the police that all the three appellants had carried Shailesh to Pokhar side. She also said that she had informed the police that from her roof she had called Sawalia (P.W.4). In paragraph-20 of her cross-examination, she stated that she did not recollect as to whether she had stated before the police that all the three appellants had carried Shailesh to Pokhar side. She also said that she had informed the police that from her roof she had called Sawalia (P.W.4). To this effect, attention of Sri Bipin Bihari Sharan, Investigating Officer (P.W.7) was drawn and P.W.7 in paragraph-9 of his cross examination has categorical stated that witness Kalawati Devi (P.W.3) had not stated that all the three appellants had carried Shailesh to Pokhar side. This witness (P.W.7) has also stated that before him in her statement recorded under Section 161 of the Code of Criminal Procedure, Kamlawati Devi (P.W.3) had not stated that all the three appellants had assaulted Shailesh by fists. She had also not stated before the police that from the roof, she had called Sawalia (P.W.4) and informed about the occurrence. P.W.7-Investigating Officer has also stated that Kamlawati Devi (P.W.3) had not stated that after ten minutes Sawalia (P.W.4) returned and informed that he had seen all the three appellants fleeing away as well as that she had told Sawalia (P.W.4) that accused persons had assaulted Shailesh by fists. On minute examination, evidence of Kamlawati Devi (P.W.3) also appears to be not probable. On examination of her deposition recorded in examination-in-chief, it appears that she (P.W.3) has come to depose as if she had seen each and every thing of the occurrence and she had seen accused as well as victim. Moreover, once a mother had seen that her son was being assaulted at 6.30 P.M. on 24.07.1989, it is difficult to believe as to why the police was not informed till recovery of the dead body on the next date i.e. at about 7.00 A.M. on 25.07.1989. 14. The evidence of Sri Bipin Bihari Sharan (P.W.7), who had recorded fardbeyan and investigated the case also suggests that the prosecution has not come out with clear picture. On 25.07.1989 this witness (P.W.7) was posted as Sub-Inspector of Police at Bhagwanpur Police Station and on the same day at about 9.00 in the morning, the Chowkidar Satya Narain Rai (D.W.1) gave an information that after killing son of Ram Balak Singh (P.W.2), his dead body was thrown in the water. On 25.07.1989 this witness (P.W.7) was posted as Sub-Inspector of Police at Bhagwanpur Police Station and on the same day at about 9.00 in the morning, the Chowkidar Satya Narain Rai (D.W.1) gave an information that after killing son of Ram Balak Singh (P.W.2), his dead body was thrown in the water. Thereafter, he (P.W.7) recorded Station Diary Entry no.347 dated 25.07.1989 and along with other police personnel, he reached the village-Dharmraj at 10.30 A.M. and, thereafter, he recorded fardbeyan of Ram Balak Singh (P.W.2), which was marked as Ext.2. He also drew a formal F.I.R., which was marked as Ext.3. On the same day, the dead body of Shailesh was fished out from the water and inquest report was prepared, which was marked as Ext.4. Thereafter, he inspected the place of occurrence, which was a ditch on the government Gairmazarua land, in which dead body of Shailesh was lying. The said ditch was about 150 yards of Dharmraj village and water was in the ditch. Thereafter, after conducting investigation, he (P.W.7) handed over charge for further investigation to P.W.8-Firoz Ahmad on 05.09.1989. In his cross-examination in paragraph no.6, he stated that the Chowkidar had not stated about name of the persons, who had assaulted. In paragraph-7 of his cross-examination, he further stated that on the basis of rumour regarding recovery of a letter at the place of occurrence, he had asked the informant, but no such information was provided. This witness (P.W.7) in paragraph-10 of his cross-examination has stated that he had not recorded statement of Nand Kishore Singh (P.W.5). He accepted that grand-father of the deceased, namely, Jaleshwar Rai was alive, but he did not record his statement. He further stated that Kalawati Devi (P.W.3) had not stated before him that she had asked the Chowkidar to inform the police. He has also stated that there was no criminal antecedent against Janak Mahto (appellant no.3). It is necessary to indicate that prosecution witnesses had stated that appellant no.3 along with appellant no.1 had remained in custody in relation to a dacoity case. It appears that incorrect statement was made by the prosecution witness. 15. So far as evidence of P.W.9-Bhrigunath Shahi, P.W.10-Ram Narain Prasad and P.W.11-Jamadar Rai are concerned, they were examined as formal witness and, as such, there is no need to further examine their evidence. So far as the evidence of P.W.6-Dr. It appears that incorrect statement was made by the prosecution witness. 15. So far as evidence of P.W.9-Bhrigunath Shahi, P.W.10-Ram Narain Prasad and P.W.11-Jamadar Rai are concerned, they were examined as formal witness and, as such, there is no need to further examine their evidence. So far as the evidence of P.W.6-Dr. Kalika Sharan Singh is concerned, on 25.07.1989, he was posted at the Sadar Hospital, Siwan and on the same day at 3.50 P.M. he had conducted post-mortem examination on the dead body of Shailesh Kumar and found following injuries: (i) One lacerated wound ½” x ½ x muscle deep in the lower lip. (ii) One abrasion ½” x ½” on right upper chest. (iii) One bruise 2” x 2” on front of neck. On dissection, muscle and subcutaneous tissue of the neck where ecchymosed, hyoid bone was found fractured with laceration of surrounding tissues. He opined that death occurred due to injury no.3. He stated in the following manner: Death in my opinion is due to injury no.3 leading to C.R.failure (cardiac respiratory failure). Time since death elapsed within 24 hours. The P.M. report (Ext.1) is in my pen. Injury no.1 and 2 are possible by hard and blunt weapon including fists and slaps. Injury No.3 is possible by pressing the neck by human hands. Injury no.3 may lead to instantaneous death. Injury n.3 is sufficient to cause death in ordinary course of nature. I found all the injuries on the dead body during holding autopsy. I found only three injuries. I have not mentioned in the report that injury no.3 is sufficient in ordinary course of nature to cause death. It is not only possible by giving blow of some weapon. Injury nos.1 and 2 are possible by voluntary submissions if one takes this risk, but the same is not applicable in injury no.3.” This witness (P.W.6) has proved post-mortem examination report, which has been marked as Ext.1. 16. To disprove the case from the defence side, three witnesses were examined, out of whom, Chowkidar of the informant’s village, namely, Satya Narain Rai has been examined as D.W.1. D.W.1-Satya Narain Rai, in his deposition, is very much categorical that though he received information regarding dead body lying in the pokhar(pond) after murder, he had not received any information as to who had killed the deceased. D.W.1-Satya Narain Rai, in his deposition, is very much categorical that though he received information regarding dead body lying in the pokhar(pond) after murder, he had not received any information as to who had killed the deceased. This information was received by this witness only after the dead body of Shailesh Singh was found floating in the pokhar(pond), which was found at 7.00 A.M. on 25.07.1989. Similarly, the evidence of Jaleshwar Rai(D.W.2) may not be ignored considering the fact that this witness is none else, but own grandfather of the deceased. He (D.W.2) in his evidence has stated that he was having seven sons, out of whom Ram Balak Singh (P.W.2) is the father, whose son was murdered. This witness has stated that six brothers including appellant no.1 Bali Ram Singh were residing in the old ancestral house, whereas P.W.2-Ram Balak Singh was residing separately in a new constructed house. He further stated that after death of first wife, Ram Balak Singh solemnized second marriage and deceased was son of second wife of P.W.2. He further stated that regarding ancestral property, partition through registered sale deed had taken place long back in the year 1982. On examination of his evidence, the story prepared by the prosecution side, particularly the informant that fifteen days prior to the occurrence, Bali Ram Singh (appellant no.1) had threatened Ram Balak Singh for compromise, appears to be not acceptable. D.W.3- Braj Kishore Singh is a formal witness. 17. Considering the entire evidence, we have come to the conclusion that the entire prosecution case has come under the cloud of doubt. It is difficult to perceive that after noticing the fact that the deceased was assaulted at 6.30 P.M. on 24.07.1989 how the police was not informed till the recovery of dead body. The dead body was found floating in a ditch in the next morning at 7.00 A.M. on 25.07.1989 and, thereafter, the Chowkidar of the village, who was not cited as prosecution witness, rather he was examined as defence witness, went to the Police Station and informed the Investigating Officer regarding floating the dead body of the son of P.W.2 in a ditch. The suggestion made by learned Amicus Curiae that entire case was fabricated after arrival of P.W.2 in the village may not be ruled out. The suggestion made by learned Amicus Curiae that entire case was fabricated after arrival of P.W.2 in the village may not be ruled out. It is evident that on the date of occurrence, P.W.2 (father of the deceased) was in the district of Gopalganj and he arrived in his village on 25.07.1989 and only thereafter at 10.30 A.M., fardbeyan of the informant was got recorded. None of the witnesses had said as to whether any of the appellants was carrying any weapon or not, but the Investigating Officer, while conducting investigation and inspecting the place of occurrence, had found a knife at the place of occurrence. Moreover, regarding a letter found from the place of occurrence, the prosecution has kept mum. This also creates some doubt in the mind of the Court. The prosecution case has further doubted in view of the fact that though it was a consistent case of the prosecution that about 20-25 villagers had searched the victim, the prosecution had not examined any of the co-villagers as independent witness, rather it is a case, where two witnesses, who were of different villages, were introduced and out of two, one i.e. Nand Kishore Singh(P.W.5), who has not been examined by the Investigating Officer nor was named as prosecution witness in the chargesheet, was examined in the case as prosecution witness. 18. Considering all the evidences as discussed herein above, the Court is of the opinion that the prosecution case comes under the cloud of doubt and, as such, extending the benefit of doubt the appellants can be acquitted. 19. Accordingly, extending the benefit of doubt, the impugned Judgment of conviction and order of sentence dated 31st May, 1993 passed by Sri R.A.Singh, learned 6th Addl. Sessions Judge, Siwan in Sessions Trial No.29 of 1990 arising out of Bhagwanpur Hat P.S. Case No.69/89 is hereby set aside and the appeal is allowed. 20. Since the Judgment of conviction and order of sentence has been set aside, all appellants are discharged from the liability of their bail bond