JUDGMENT : Delivered by Hon'ble Alok Kumar Mukherjee, J. 1. Since both these appeals have been preferred against a common judgment and orders dated 30.06.1983 passed by the IV Additional Sessions Judge, Mirzapur in S.T. No. 43 of 1982 (State Vs. Hari Narain and others) arising out of Case Crime No. 61 of 1981, P.S. Ghorawal, District Mirzapur, convicting and sentencing the appellants to undergo rigorous imprisonment for six months under section 147 IPC; one year's rigorous imprisonment under sections 201/149 IPC and life imprisonment for the offence under sections 302/149 IPC. In addition, the accused Hari Narain, Ram Raksha and Jagya Narain each were further convicted and sentenced to undergo rigorous imprisonment for one year under section 148 IPC with a direction that all the sentences shall run concurrently. Hence, both the aforesaid appeals are being connected, heard and decided together by a common judgment. 2. It is relevant to mention here that while hearing these appeals, it has been noticed by us that the appeal preferred by appellant no. 2 Jagya Narain (in Criminal Appeal No. 1665 of 1983), appellant no. 2 Bhandu alias Pawaru, appellant no. 4 Parsottam and appellant no. 6 Biraj Kol (in Criminal Appeal No. 1895 of 1983) have already been abated, vide order dated 10.07.2012 passed by a coordinate Bench of this Court. Therefore, the appeals preferred by surviving accused appellants Laxman, Ram Raksha, Taulan, Hari Narain, Shanker and Jamuna are only being heard by this Court. 3. All the aforesaid surviving appellants have filed the aforesaid two appeals against the aforementioned judgment and orders dated 30.06.1983 on the grounds that the learned trial court has erred in believing the prosecution case and the evidence examined in support thereof. Further, the conviction of the appellants is against the weight of evidence on record and law. 4. Brief facts of the prosecution case are that accused applicant no. 1 Hari Narain had allegedly mortgaged his agricultural field in village Rehi, district Mirzapur, in favour of one Ayodhya Lohar for Rs. 500/-. On 27.08.1981 at about 11.00 A.M. accused appellants Hari Narain, Ram Raksha, Jagya Narain, Laxman, Bhandu alias Pawaru, Jamuna, Ram Nandan, Parsottam, Taulan, Biraju Kol, Shanker and Nanhaku Singh, armed with lathi, danda, tangari and spear (balua), reached the aforesaid field in possession of Ayodhya Lohar and with a common intention, started ploughing it. 500/-. On 27.08.1981 at about 11.00 A.M. accused appellants Hari Narain, Ram Raksha, Jagya Narain, Laxman, Bhandu alias Pawaru, Jamuna, Ram Nandan, Parsottam, Taulan, Biraju Kol, Shanker and Nanhaku Singh, armed with lathi, danda, tangari and spear (balua), reached the aforesaid field in possession of Ayodhya Lohar and with a common intention, started ploughing it. On the objection raised by Ayodhya Lohar, Hari Narain exhorted his associates to kill him (Ayodhya) at any cost. On such an exhortation all his above associates, including him, chased Ayodhya Lohar with the intention to kill him. Ayodhya Lohar with a view to save himself rushed towards the house of Cheeni his brother-in-law (Sala) and sneaked therein and took shelter. 5. In the said house at that time, wife of Ayodhya named Mangari (complainant), wife of Cheeni, mother of Mangari along with Cheeni were present. Cheeni also hid with Ayodhya Lohar in the house, all the other inmates of the said house on coming of Ayodhya Lohar there and seeing the appellants, smelt the rat and Mangari locked the door of the house. 6. Thereafter all the appellants entered the house after cutting and breaking the roof (Chhaajja) of the said house. After entering the house, appellants Hari Narain armed with balua, Ram Raksha armed with tangari and Yagya Narain armed with battle axe (farsa) and rest of appellants armed with lathi belaboured Ayodhya Lohar and killed him. Subsequently, Ram Nandan, Shanker Ram Raksha and Har Narain carrying the dead body of the deceased on a lathi, moved on. Hearing the alarms of the complainant and other persons, many village folks arrived at the spot. On the resistance made by the first informant, while carrying away the dead body of the deceased by the said appellants, she was also beaten by them, resultantly she fell down on the spot. Thereafter all the appellants, along with the dead body of the deceased, proceeded towards the jungle, situated at the north of the village. 7. Meanwhile, the aforesaid Cheeni followed the assailants and when he reached at the canal, Nanhku Singh and Purshottam, amongst the appellants-appellants, assaulted Cheeni with lathi and threatened him by saying that he would also be thrown in the said forest after being done to death. On such a threat, Cheeni, anyhow managed to save his skin and returned to his house. On such a threat, Cheeni, anyhow managed to save his skin and returned to his house. It is further alleged that one Manager Lal of village Pathar Tal and one Manmohon Pandit resident of village Mahoshwar, prior to the day of the aforesaid incident held a meeting to conspire to kill Ayodhya Lohar and conceal his dead body. According to the first informant, on the aforesaid conspiracy hatched by the aforesaid two persons, her husband Ayodhya Lohar was killed and his dead body was ensconced in the jungle. 8. Subsequently, on the written report, scribed by one Lal Chand Pandey on the dictation of the informant Mangari, wife of the deceased Ayodhya on the date of incident i.e. 27.08.1981 at 2.00 P.M., a case was registered as case Crime No.61 of 1981 under sections 147, 148, 149, 323 302, 201 and 120-B IPC, and entered in the General Diary on 27.08.1981 at report no 12 (Ext. Ka-3) and chick FIR (Ext. Ka-2). Investigation of the case was entrusted to the then Sub Inspector Ram Chandra Singh (P.W.-9), who reached the place of occurrence and recorded the statements of the witnesses. He also prepared site plan (Ext. Ka-17) and tried to search the dead body of the deceased but in vain. 9. Finding blood stains at certain places, the Investigating Officer collected blood stained earth (Ext. 10) and plain earth (Ext. 18) from the place of occurrence. Thereafter, the investigation of the case was taken up by Station Officer, Sub Inspector Raghu Nath Mishra (P.W.-8) on 31.08.1981, who prepared Recovery Memo (Ext. Ka-7) by taking in possession of lock and key, which was used in locking the door of the aforesaid house at the relevant time. The said Investigating Officer, P.W.-8 Raghu Nath Mishra, on 03.09.1981, during the search of the dead body, found blood stained bone, wooden sticks, bamboo leaves and "Kusha" grass as well as few pieces of bones at one place in the jungle and after recovery of the same, he prepared inquest report (Ext.Ka-8) and recovery memo of blood stained stones (Ext. Ka 19) on the spot. After preparing the diagram dead body (Ext Ka-11), he preserved and sealed the sample seal (Ext. Ka-13). He also prepared Memo (Ext. Ka-14) after collecting blood stained bamboo leaves, wooden sticks and "Kusha" grass from the place of recovery of the aforesaid bones. 10. Ka 19) on the spot. After preparing the diagram dead body (Ext Ka-11), he preserved and sealed the sample seal (Ext. Ka-13). He also prepared Memo (Ext. Ka-14) after collecting blood stained bamboo leaves, wooden sticks and "Kusha" grass from the place of recovery of the aforesaid bones. 10. Postmortem examination report (Ext Ka-20) of six pieces of bones, said to be of Ayodhya (deceased), was conducted by Sri Shailendra Kumar Singh, Medical Officer, I/C District Hospital, Mirzapur on 04.09.1981 at 12.45 P.M. who found that there were six pieces of bones of different tissues (small), not a single bone was complete, therefore, definite opinion could not be given on examining these bones (1) whether of human or not (2) whether male or female (3) Age and lastly for cause of death, he suggested that for classification these bones should be sent to the Head of Anatomy Department, K.S. Medical College, Lucknow. He further opined that cause of death could not be ascertained, bones were preserved. 11. Medical examination of Smt. Mangli (P.W.-1) was conducted by Dr. T.K. Lala, Medical Officer, Primary Health Centre, Mirzapur on 28.08.1981 at 11.20 A.M. In the examination of the aforesaid injured the doctor found tenderness present over the right fore arm and it was simple in nature. The doctor further opined that the injury might be caused due to blunt weapon. 12. Medical examination of Cheeni (P.W.-2) was conducted by Dr. T.K. Lala, Medical Officer, Primary Health Centre, Mirzapur on 28.08.1981 at 11.30 A.M. Injury no. 1 was abrasion over the right clavicle 1 cm x ½ cm at the junction of Haemoron bone and Injury no. 2 was traumatic swelling over the left leg 8 cm x 8 cm x13 cm below the knee. Both the injuries were found to be simple in nature which might be caused by blunt object. 13. The Investigating Officer also got photographed the dismantled house of Cheeni. The aforesaid photographs (Exts. Ka 3 and Ka-4) and the negatives of the same are Exts 1 and 2. After concluding the investigation charge-sheet (Ext. Ka-16) was submitted by him against all the accused appellants. After procuring the chemical examiner's report (Exts Ka-21 and Ka-22), the case was committed to the Court of Session. 14. The aforesaid photographs (Exts. Ka 3 and Ka-4) and the negatives of the same are Exts 1 and 2. After concluding the investigation charge-sheet (Ext. Ka-16) was submitted by him against all the accused appellants. After procuring the chemical examiner's report (Exts Ka-21 and Ka-22), the case was committed to the Court of Session. 14. The case of accused Manager Lal and Manmohan, the alleged conspirators in the murder of the deceased, was also initially committed to the Court of Session but as no prima facie evidence was found against them, they were discharged and remaining charge sheeted accused persons namely; Hari Narain, Ram Raksha, Jagya Narain, Laxman, Bhandu alias Pawaru, Jamuna, Ram Nandan, Pursottam, Taulan, Biraju Kol, Shanker and Nanhuk were jointly charged under Sections 147, 149, 323 302, 201 and 120-B IPC IPC. In addition to above, accused Hari Narain, Ram Raksha and Jagya Narain were also charged for the offence under section 148 IPC. All the accused-appellants denied the charges and pleaded not guilty and claimed to be tried. 15. To prove charges the prosecution examined 10 witnesses namely, P.W.-1 complainant Smt. Mangari,, P.W.-2 Jagannath, P.W.-3 Cheeni, P.W. -4 Rajendra Kumar, P.W. -5 Head Constable Shiv Shanker Singh, P.W. -6 Ram Bali, P.W.,- 7 Dr. TK Lala, P.W. 8 Investigting Officer Raghunath Mishra, P.W.-9 Investigating Officer. Ram Chandra Singh and P.W. 10 Constable Dinnath Singh. The said witnesses have proved the entire documentary evidence as well as materials (Exts. 15 and 16), as mentioned above, placed on record by the prosecution 16. Statements of accused-appellants under section 313 Cr.P.C. were recorded after closing of the prosecution evidence. In the said statements all the accused appellants refuted the charges. In this regard, Jag Narain stated that he used to farm fields and reside in village Deema, 10 Kms away from the place of the alleged incident and reiterated the old standing enmity between him and the deceased's family. It was further stated by this accused that the deceased was involved in many cases and that he was a goonda and had many enemies. Accused appellant Nanhku, while denying the charges stated that he had no agricultural field in the village. He further stated that neither he had any relations in the said village nor bore any enmity with the deceased. Accused appellant Nanhku, while denying the charges stated that he had no agricultural field in the village. He further stated that neither he had any relations in the said village nor bore any enmity with the deceased. Another accused Bhandu while reiterating the same story of old enmity with the deceased under section 313 Cr.P.C. added that he stood witness for the police against Ram Nandan in a criminal case, therefore, due to that enmity, he had been falsely implicated in the instant case. Accused Ram Nandan while repeating the story of enmity added in his statement recorded under section 313 Cr.P.C., that he had initiated a police case of thrashing by danda against P.W. 3 Cheeni etc., on a trivial issue, therefore, in vengeance he had been falsely implicated in the instant case. He affirmed that the aforesaid Bhandu was a witness in the aforesaid police case. Another accused witness under section 313 Cr.P.C. while recapitulating the story of old enmity added that he belonged to a different village named Pathar Tal, four kms away from the village where the alleged incident happened and knew nothing about the occurrence. He had been falsely implicated in the instant case. 17. The accused persons-appellants examined D.W. 1 Hari Ram Singh, Lekhpal of village Reha in their defence and filed the official village map of the village-in-question, the site plan (Ext. Kh- 1) along with a copy of Complaint Case No. 1834 of 1980 (Sumitri v. Pariyag and others) which are (Ext Kh -2) on record. 18. After hearing the arguments of the parties, the learned trial Judge by the impugned judgment and orders convicted the present appellants and sentenced them as above. Being aggrieved by the aforesaid judgment and orders of the trial court, these two appeals have been preferred by the aforementioned appellants. 19. Heard Sri Harishchandra Tiwari, learned counsel for the appellants Laxman, Ram Raksha, Taulan and Shanker and Sri S. K. Kulshrestha, learned counsel for the appellants Hari Narain and Mohd Shahanshah, learned counsel for appellant Jamuna and learned AGA Sri Ajeet Kumar Singh for State and perused the order and judgment of the trial Judge, convicting and sentencing all the surviving appellants. 20. On behalf of the appellants, it has been submitted that the instant case is of no evidence. None had seen the occurrence. 20. On behalf of the appellants, it has been submitted that the instant case is of no evidence. None had seen the occurrence. The dead body could not have recovered, had anyone seen the occurrence, it was not possible for the surviving accused appellants to disappear the same. Learned counsel further submits that the learned trial judge has erroneously held motive to be proved. Infact, it could not be proved. His last submission is that when the witnesses in reference to Maar Peet with them had been disbelieved the other part of their evidence also should have disbelieved but the learned trial judge while ignoring the fact that the dead body could not be recovered, mis-directed him self by misreading the laws, pleas and the statements of prosecution witnesses. 21. On behalf of State respondent, these arguments have been repelled and Sri Ajeet Kumar Singh, learned A.G.A. has submitted that all the evidence has been properly appreciated. There was nothing wrong in partly believing and partly disbelieving the testimonies of the prosecution witnesses. He has further submitted that findings recorded by the learned trial judge are well substantiated from the record. Cogent reasons have been given in support there of, hence, they need no interference and the appeals deserve to be dismissed. 22. Before entering into the merits of the appeal, we would like to remind ourselves the settled proposition of law, to be followed by the High court while exercising the appellate jurisdiction in criminal appeal, propounded by the Apex Court in the cases of Ishvarbhai Fuljibhai Patni Vs. State of Gujrat [1995 Supreme Court Cases (Crl) 222] and Lal Mandi Vs. State of West Bengal, [1995 Cr.LJ 2659 (Supreme Court), 2659] that the High Court, while exercising appellate jurisdiction in criminal appeal, is expected to appraise the credibility of evidence available on record and to draw the inference on the basis of material available on record and has not to be guided by the finding of acquittal or conviction recorded by the learned court below, bearing in mind the basic principle of criminal law regarding innocence of the accused. Bearing in mind the aforesaid proposition of law we have considered the rival contentions and carefully examined the impugned judgment and material on record. 23. The only point for determination in the present appeals is whether the learned trial court has rightly appreciated the evidence or not. Bearing in mind the aforesaid proposition of law we have considered the rival contentions and carefully examined the impugned judgment and material on record. 23. The only point for determination in the present appeals is whether the learned trial court has rightly appreciated the evidence or not. To do this, we have to notice broad features of the prosecution witnesses who claimed to have seen the occurrence. 24. Mangari, PW-1 is the widow of deceased Ayodhya. She has reiterated the facts narrated in the first information report. She has proved the written report as Exhibit Ka-1. 25. Jagarnnath, PW-2 has stated that at the relevant time he was at the door of his house. The appellants had gone to plow their fields armed with tangari, farsa and gozi (lathi). That field was mortgaged to Ayodhya by Hari Narain. Ayodhya had also gone to the field. He was chased by the appellants who took shelter in the house of Cheeni, though door of the house was locked but the appellants after breaking the wall and removing Khapra had beaten Ayodhya. Took the dead body of Ayodhya with them. When Smt. Mangari and and others tried to stop them, the appellants Ram Raksha had beaten Smt. Mangari. Smt. Mantwa was also scuffled. Cheeni was beaten by Nanhaku Singh and Parosottam. 26. Cheeni, PW-3 is the injured brother-in-law of the deceased Ayodhya. He has fully supported the prosecution version. Here, we have to consider the fact that according to prosecution version, the deceased Ayodhya had gone to the field, from there he was chased by the appellants. When he took shelter within the house of Cheeni, he was brutally murdered and his dead body was taken after demolition of wall of western kothari. This leads us to the conclusion that main occurrence took place within the Abadi. When we have gone through the testimony of Mangari, PW-1, the widow of the deceased, we find that she had narrated the whole occurrence as if she had witnessed the whole incident. She claims to be an injured witness but the learned trial court disbelieved that she has sustained any injury in the occurrence. 27. Dr. T.K. Lala, PW-7 had deposed that on 28.08.1981, he had medically examined Mangari at 11:20 A.M. and found tenderness on her right forearm. She claims to be an injured witness but the learned trial court disbelieved that she has sustained any injury in the occurrence. 27. Dr. T.K. Lala, PW-7 had deposed that on 28.08.1981, he had medically examined Mangari at 11:20 A.M. and found tenderness on her right forearm. According to him, its duration was one day, it was caused by blunt object or her fall on land. Its nature was simple. 28. According to the prosecution version, the incident had occurred on 27.08.1981 at 11:00 A.M., the First Information Report was lodged at 02:00 P.M. on the same day. Chitthi Mazrubi was prepared on 27.08.1981. Why the medical examination took place one thereafter, obviously it was delayed and it stands unexplained. We are of the opinion that her injury could have been self-inflected in order to strengthen the prosecution version. Therefore, we are not inclined to treat Smt. Mangari as injured witness. 29. Now, we have to see, whether Mangari is the natural and probable witness of the occurrence or not. At the time of occurrence, being the house hold lady, her presence at her house was a natural thing. How, she came to see the occurrence taking place at the field has not been explained by her. Her presence on the spot away from her house requires to be explained by her. But in absence of such explanation, we are constrained to observe that her presence at the spot is unnatural and improbable. Our opinion gets fortified from the fact that her husband was brutally murdered but she made no effort to collect the villagers for seeking their help in order to prevent the murder of her husband. Her testimony also gets suspicious on account of the fact that she claims to have seen the appellants taking the dead body of the deceased (her husband) but she did not make any effort to follow them and find out what they did with the dead body of her husband. For these reasons, her eye witness account does not inspire our confidence. 30. The learned trial judge has not scrutinized her testimony in a legal fashion. He merely believed her duties being widow of the deceased that too is doubtful because in her cross-examination, she has admitted that her first husband is alive and she has not divorced him and the deceased was the resident of Allahabad. 30. The learned trial judge has not scrutinized her testimony in a legal fashion. He merely believed her duties being widow of the deceased that too is doubtful because in her cross-examination, she has admitted that her first husband is alive and she has not divorced him and the deceased was the resident of Allahabad. She claims her to be resident of district Mirzapur. 31. On the point of motive, her testimony has been believed by learned trial court against legal provisions. Had Ayodhya taken that field on mortgage, the law requires such mortgage to be registered, in absence of this primary document, it cannot be held that field where the appellants were plowing, was mortgaged with Ayodhya. It has come out in the evidence that the appellant Hari Narain had 70-80 Bighas of land and Ayodhya was an outsider. It is improbable that such a big farmer would mortgage his land to an outsider who had no arrangement for the farming. Thus, in our view, the prosecution has miserably failed to prove the motive for the crime. In view of the above, we opine that no reliance could be placed on the testimony of Smt. Mangari. 32. Jagarnnath, PW-2 also claims that he had seen the whole occurrence. He lives at the distance of 30-40 steps on the western side from the place of occurrence. He was examined after three days of the occurrence. It was natural for the Investigating Officer to have interrogated the neighbour where the occurrence took place. His late examination makes his testimony to be of doubtful veracity. This ground was also raised before the trial court but the learned trial court has rejected this ground for the reasons best known to the trial court. In the case of Vasudev vs. State of U.P., 1995 ALJ 441, the Division Bench of this Court has held that lapse of three days in examining the witness is fatal for the prosecution. The learned trial judge has mentioned that since the name of the witness does not find place in the written report, therefore, his late examination is of no significance. The learned trial judge has ignored this fact that he is a neighbour. It was natural for the Investigating Officer to have interrogated the neighbours. 33. The learned trial judge has mentioned that since the name of the witness does not find place in the written report, therefore, his late examination is of no significance. The learned trial judge has ignored this fact that he is a neighbour. It was natural for the Investigating Officer to have interrogated the neighbours. 33. Since, we are not convinced the reasons assigned by the trial court, we prefer to adopt the safer way that by keeping in mind that his version was belatedly recorded after three days, therefore, it requires careful critical scrutiny. Thus, we have carefully gone through his testimony. His presence at the spot is not natural and probable. He claims his profession to be labour. The incident had occurred on 27.08.1981. It was a busy season for farming. But why at 11:00 A.M., he was in his house instead of doing work in the field, it has not been explained by him. He appears to be a planted witness. He admits that he had not gone to the field where the altercation took place. In the site plan, the Investigating Officer has not shown the place from where this witness claims to have seen the occurrence. After subjecting his testimony through careful scrutiny, we find that he is not the trustworthy witness. 34. Cheeni, PW-3 is also an injured witness. His injuries were disbelieved by the learned trial court. He is brother of Mangari, PW-1 and brother-in-law of the deceased. He was medically examined on 28.08.1981. His Chhithi Mazrubi was prepared on the same day. One abrasion on his right clavicle was found and on left leg swelling was found. Both the injuries were opined to be superficial and that could be self-inflected. He also claim himself to be a labour. What he was doing at 11:00 A.M. in his house has not been explained by him. At that time, his presence in the house is unnatural and improbable. He should have been in his own field or fields of others. He admits that he did not make any effort to save Ayodhya, his brother-in-law. He could not successfully chase the appellants when they had allegedly taken the dead body. He even did not accompany his sister to the police station. We do not think any reliance can be placed on his testimony. 35. He admits that he did not make any effort to save Ayodhya, his brother-in-law. He could not successfully chase the appellants when they had allegedly taken the dead body. He even did not accompany his sister to the police station. We do not think any reliance can be placed on his testimony. 35. The learned trial court has mechanically believed the statements of these witnesses, whereas, their presence at the claimed places is unnatural and improbable and from their depiction of events, their conduct appears to be unnatural and vague. 36. Except above three witnesses, no other witness of fact has been examined by the prosecution. Testimonies of above three witnesses do not inspire our confidence and we find much substance in the arguments advanced on behalf of the surviving appellants that the learned trial court has not appreciated the evidence in legal perspective. 37. In our opinion, the prosecution has failed to prove the charges against the present surviving appellants. 38. The appeals deserve to be allowed and after extending benefit of doubt to all surviving appellants. They deserve to be acquitted from the charges levelled against them. 39. Accordingly, both the criminal appeals bearing number Criminal Appeal No. 1665 of 1983 and Criminal Appeal No. 1895 of 1983 are allowed. The impugned judgment and orders dated 30.06.1983 as also conviction and sentence awarded to the surviving appellants are hereby set aside. 40. The surviving appellants Hari Narain, Laxman, Ram Raksha, Jamuna, Taulan and Shanker are hereby acquitted from the charges levelled under Sections 147, 148, 201/149 and 302/149 I.P.C. They are on bail. They need not surrender. Their bail bonds and sureties bonds are cancelled and sureties discharged. 41. Office is directed to communicate this order to the court below forthwith and to sent back the lower court record.