JUDGMENT : RAKESH KUMAR, J. 1. In both the Appeals, four appellants were tried together in S.T. Case No. 202 of 2007/ S.T. Case No. No. 219 of 2007, and as such, both Appeals were heard together and are being disposed of by this common judgment. All the appellants on 1st October, 2012 were convicted for commission of offence under Sections 147, 342 and 302 of the Indian Penal Code, 1860 (hereinafter referred to as the “I.P.C.”) and by order dated: 04.10.2012 all the appellants were sentenced to undergo rigorous imprisonment for life for commission of offence under Section 302 of the I.P.C. and to pay a fine of Rs. 3,000/- each and in default of payment of fine they were directed to further undergo rigorous imprisonment for four months. For commission of offence under Section 147 and 342 of the I.P.C. all the appellants were directed to undergo simple imprisonment for one year. All the sentences were directed to run concurrently. The appellants were jointly tried in S.T. Case No. 202 of 2007/ S.T. Case No. 219 of 2007. The judgment of conviction and sentence was passed by Sri Ram Pratap Asthana, learned Presiding Officer, Adhoc Additional Sessions Judge -1st , Saharsa (hereinafter referred to as the “trial judge”) 2. Short fact of the case is that on 25.05.2006 at 20.00 Hours (8.00 P.M.) Sub Inspector of Police Sri U.S.P. Singh, Officer- In- Charge of BKP Police Station recorded fardbyan of Anil Yadav (deceased), S/o Upendra Yadav of village:- Parasbanni, Police Station: -Salakhua, district- Saharsa. The fardbyan was recorded in P.H.C. BKP (Primary Health Centre, Bakhtiyarpur). In the fardbyan the informant disclosed that on the same day i.e. on 25.05.2006 at about 1.00 P.M. he was returning from Sonebarsa Raj and as he reached about 1 Kilometer away from Parasbanni village near a Bridge suddenly his co-villagers, namely: Socho Yadav carrying 3 Nutt in his hand and Dinesh Yadav (appellant in CR. APP (DB) No. 1131 of 2012) both sons of Suraj Yadav carrying lathi in his hand, Bidyanand Yadav (A3) carrying farsa in his hand , Ghoghan Yadav (A2) carrying rod and Jogo Yadav (A1) [ all appellants in CR. APP (DB) No. 1079 of 2012] carrying lathi and he was having 3 Nutt on his waist created an unlawful assembly with common intention and thereafter, Socho Yadav by using filthy language exhorted to kill. APP (DB) No. 1079 of 2012] carrying lathi and he was having 3 Nutt on his waist created an unlawful assembly with common intention and thereafter, Socho Yadav by using filthy language exhorted to kill. After hearing this Dinesh Yadav gave a lathi blow on his right temporal region, Bidyanand Yadav gave blow from his farsa, however, the said blow caused injury on his palm. Ghoghan Yadav gave rod blow which hit his back and Jogo Yadav with the butt of 3 Nutt assaulted him on his leg. Due to such injuries, the informant fell down and thereafter all the accused persons with intent to kill him continuously assaulted him. Subsequently, they looted his Atlas Cycle, Titan watch and head of hand pump and also his purse containing about Rs. 30,000/-. It was disclosed by the informant that the said occurrence was witnessed by his villagers, namely: Brinda Devi (P.W.1), Sushil Yadav (P.W.4), Yugo Sada (not examined), Ramdas (P.W. 5) and others. Accused Socho Yadav, Dinesh Yadav, Bidyanand Yadav were already absconding in a case. He reiterated that all the accused persons with intent to kill him had assaulted and thereafter, has looted his articles. His fardbyan was read over to him and after finding it correct he put his L.T.I. on the fardbyan. The said fardbyan was read over in presence of Sushil Yadav (P.W.4) and Manoj Yadav (not examined) and both had also signed on the fardbyan. 3. On the basis of the said fardbyan, a formal F.I.R. was drawn on 04.06.2006 at 4.00 P.M. vide Salakhuwa P.S. Case No. 71 of 2006 for offence under Sections 147/ 148/ 149/ 323/ 324/ 307/ 379 of the I.P.C. After death of informant, as per order of the Court, on 08.06.2006 Section 302 of the I.P.C. was added. The F.I.R. was lodged against all the aforesaid five appellants and one Socho Yadav. During investigation accusation was found true against all the F.I.R. named accused persons, and as such, on 18.11.2006 charge- sheet was submitted against all the F.I.R. named accused persons including the four appellants and showing Socho Yadav as absconder. On 25.11.2006, the learned Chief Judicial Magistrate, Saharsa took cognizance of the offences and the case was committed to the court of Sessions on 30.08.2007. On 04.12.2007 charge under Sections 149, 342, 302 and 379 of the I.P.C. was jointly framed. 4. On 25.11.2006, the learned Chief Judicial Magistrate, Saharsa took cognizance of the offences and the case was committed to the court of Sessions on 30.08.2007. On 04.12.2007 charge under Sections 149, 342, 302 and 379 of the I.P.C. was jointly framed. 4. To establish its case on behalf of the prosecution altogether seven witnesses were examined, however, out of seven witnesses, P.W. 1 (Brinda Devi), P.W. 2 (Mithu @ Mithilesh Yadav), P.W. 3 (Chander Yadav), P.W. 5 (Ramdas) and P.W. 6 (Sunil Yadav) since had not supported the prosecution case, they were declared hostile. P.W. 4 (Sushil Yadav, own brother of the deceased) has claimed to be eye witness and he proved his signature on the fardbyan, which was marked as Exhibit -1. He also proved his signature on the inquest report, which was marked as Exhibit -2. P.W. 7 (Dr. Gyan Prakash Gupta) on 05.06.2006 was posted as Medical Officer at Sadar Hospital, Saharsa and he was one of the member of the Medical Board, which conducted post- mortem examination on the dead body of the deceased and he proved the post -mortem examination report, which was marked as Exhibit -3. In the case the Investigating Officer was not examined. After conclusion of the prosecution evidence, evidences and circumstances collected against the accused persons were explained to them and their statement under Section 313 of the Cr.P.C. was recorded on 13.01.2012 in which they denied the charges and claimed about their false implication. From the defence side, no witness was examined, save and except claiming that they were falsely implicated. 5. Sri Pramod Mishra, learned counsel, has appeared on behalf of three appellants in CR. APP (DB) No. 1079 of 2012 and Sri Rajiva Ranjan, learned counsel, has argued on behalf of the sole appellant (Dinesh Yadav) in CR. APP (DB) No. 1131 of 2012. After placing entire evidence it has been argued that despite the fact that prosecution had not been able to proof its case, the learned trial judge, in a mechanical manner, has passed the judgment of conviction and sentence. It has been argued that during trial almost all the witnesses who were cited by the prosecution have turned hostile. It has been argued that the fact that most of the witnesses were declared hostile suggests that false case was fabricated to implicate all the accused who were from one family due to old animosity. It has been argued that during trial almost all the witnesses who were cited by the prosecution have turned hostile. It has been argued that the fact that most of the witnesses were declared hostile suggests that false case was fabricated to implicate all the accused who were from one family due to old animosity. It has also been argued that deceased was one of the accused relating to murder of one Narad Yadav, brother of Socho Yadav as well as Dinesh Yadav (appellant in CR. APP (DB) No. 1131 of 2012]. It has been argued that only witness who claiming to be eye witness to the occurrence was examined was P.W. 4 who was non-else but brother of deceased. He in his evidence pretending to be eye witness has deposed as if he along with deceased was moving. In the meanwhile, from beneath bridge all the five F.I.R. named accused suddenly came out, surrounded them and firstly they tied him. This witness by way of explaining as if this witness had earlier committed no mistake leaving him, all the accused persons started assaulting Anil Yadav brutally. After assault when they were satisfied that he died the accused persons left. Learned counsel for the appellants has drawn our attention to paragraph no. 10 of cross-examination of P.W. 4 and submits that all the facts which were deposed by this witness during trial was never stated by him in his previous statement recorded under Section 161 of the Cr.P.C. It has been argued that without any explanation in the case the Investigating Officer was not examined, and as such, appellants’ case was seriously prejudiced as they were prevented from contradicting this witness to his previous statement recorded at the time of investigation by the Investigating Officer and drawing attention towards particular paragraphs of the case diary. He submits that during investigation in his statement recorded under Section 161 of the Cr.P.C. this witness had stated that he along with others had heard hulla and thereafter, with some witnesses they reached to the place of occurrence, where he noticed that his brother Anil Yadav was lying unconscious with multiple injuries. However, during trial he has come out as if right from the very beginning of the occurrence he was present and in his presence after the occurrence accused persons left the place of occurrence. However, during trial he has come out as if right from the very beginning of the occurrence he was present and in his presence after the occurrence accused persons left the place of occurrence. Learned counsel for the appellants has also argued that in the case fardbyan or formal F.I.R. was not even got exhibited, neither the Sub Inspector of Police who recorded fardbyan of the deceased has come forward to support that the deceased in injured condition had given statement and he was in a condition to make such statement. Nor any other Police Officer has come forward, conversant with the writing and signature of the Sub Inspector who had recorded fardbyan, claiming that the fardbyan was recorded by Sub Inspector of Police Sri U.S.P. Singh. According to learned counsel for the appellants there was no cogent evidence for passing judgment of conviction and sentence. By way of referring to Exhibit -3 i.e. Post- Mortem Examination Report, Sri Rajiva Ranjan, learned counsel for the appellant (Dinesh Yadav) has argued that even in the F.I.R. it was disclosed as if this appellant gave lathi blow on his (deceased) right temporal region, but in the post- mortem examination report no such injury was noticed by the doctor who conducted post- mortem examination. In sum and substance, it has been argued that the case was completely false and due to old animosity in a case in which none had seen the occurrence all the appellants were framed as accused. 6. Sri Ajay Mishra, learned Additional Public Prosecutor though has opposed both the Appeals, he was not in a position to properly defend the prosecution case. 7. Besides hearing learned counsel for the parties, we have minutely examined entire evidences on record. It would be necessary to succinctly notice what witnesses have deposed. P.W. 1 (Brinda Devi) was shown as a witness to the occurrence in the F.I.R., but during evidence she flatly deposed that she was not knowing anything about the occurrence, nor her statement was recorded during investigation by the Police and this was the reason that she was declared hostile by the prosecution. 8. P.W. 2 (Mithu @ Mithilesh Yadav) is a resident of the same village i.e. the village of the deceased and cousin brother of the deceased. This witness has stated that Anil Yadav (deceased) was his cousin brother and he was murdered about 1 ½ years back. 8. P.W. 2 (Mithu @ Mithilesh Yadav) is a resident of the same village i.e. the village of the deceased and cousin brother of the deceased. This witness has stated that Anil Yadav (deceased) was his cousin brother and he was murdered about 1 ½ years back. He stated that he was murdered in Parasbanni. He had gone to the place of occurrence and saw that Anil was lying in injured condition. He was having injury on his chest, stomach, legs etc., which was caused by lathi. There was also cut injury. In paragraph no. 2 of his evidence he stated that he had some discussion with Anil and Anil had not disclosed name of any of the accused. Thereafter, this witness was declared hostile and his attention to his previous statement was drawn, which he disputed. 9. P.W. 3 (Chander Yadav) flatly deposed that he was not knowing anything about the occurrence, nor his statement was recorded by Police and this witness, too, was declared hostile. 10. P.W. 5 (Ramdas) was one of the witness shown in the F.I.R. and in his evidence he stated that the occurrence had taken place about one year back. He heard hulla and thereafter, near R.C.C. Bridge he noticed the occurrence. He went there and saw Anil Yadav (in injured condition) was unconscious. Along with him, Sunil Yadav (P.W. 6) and Sushil Yadav (P.W. 4) had also gone. He stated that he did not see any other person there. Thereafter, the injured was carried to Saharsa for his treatment. He deposed that he had some discussion with injured but he was not in a condition to clearly speak. This witness thereafter was declared hostile and his attention was drawn to his previous statement. 11. P.W. 6 (Sunil Yadav, own brother of the deceased) deposed that Anil Yadav was his brother and about two years back he was murdered. It was day time. At that very time he was in his own Bahiyar. He only heard about the occurrence and this witness was again declared by prosecution as hostile witness. Meaning thereby, that even the own brother of the deceased has not supported the prosecution case. In the case only witness i.e. P.W. 4 (Sushil Yadav) deposed as if he was all along with the deceased and in his presence entire occurrence had taken place. Meaning thereby, that even the own brother of the deceased has not supported the prosecution case. In the case only witness i.e. P.W. 4 (Sushil Yadav) deposed as if he was all along with the deceased and in his presence entire occurrence had taken place. In his evidence he stated that on the date of occurrence at about 1.00 P.M. he along with his brother Anil Yadav was returning from Sonebarsa Bazar. At this juncture, it would be necessary to indicate that in the fardbyan of deceased he had not at all whispered as to whether he was accompanied by this witness or not. On examination of the fardbyan it is evident as if the deceased was lonely coming back from Sonebarsa Raj and thereafter, the occurrence had taken place. P.W. 4 further deposed that when they reached near R.C.C. Bridge suddenly all the F.I.R. named accused persons come from the lower portion of the Bridge and surrounded him and his brother (deceased). Subsequently, they caught hold of this witness and tied him. Thereafter, they caught Anil and started assaulting by means of lathi, farsa, rod and butt of 3 Nutt. Due to such assault, Anil had fallen on the Earth even thereafter, they continuously assaulted him. This witness further deposed that thereafter he ran to save his brother and this witness was also chased. It is peculiar thing that this witness himself has accepted that after both, he and his brother, were surrounded by the accused persons, the accused persons tied him. Once he was tied it is not believable as to how after noticing severe assault on his brother he again moved to save him. This witness described as if each and every event in the occurrence was noticed by him. After the occurrence he carried his injured brother to Banwa O.P. and thereafter, for his treatment, he was carried to Simri Bakhtiyarpur Hospital. He was accompanied by Sunil Yadav (P.W. 6), Ramdas (P.W. 5), Mithilesh (P.W. 2) and other villagers. He in paragraph no. 4 stated that deceased was his cousin brother and Sunil Yadav (P.W. 6) was own brother of the deceased. This witness identified his signature on the fardbyan, which was marked as Exhibit- 1. He was accompanied by Sunil Yadav (P.W. 6), Ramdas (P.W. 5), Mithilesh (P.W. 2) and other villagers. He in paragraph no. 4 stated that deceased was his cousin brother and Sunil Yadav (P.W. 6) was own brother of the deceased. This witness identified his signature on the fardbyan, which was marked as Exhibit- 1. He further deposed that from Bakhtiyarpur Hospital for better treatment Anil (injured) was referred to Saharsa, where he remained for about 4-5 days, and thereafter, again he was referred from Saharsa to Patna but on the date on which he was referred he died. He also proved his signature on the inquest report, which was marked as Exhibit- 2. In paragraph no. 9 of his cross-examination he stated that only after four hours from the occurrence Police arrived and recorded his statement. His statement was recorded only once by Darogaji. In paragraph no. 10 of his cross -examination his attention was drawn as to whether the fact which he had stated in his evidence was stated during his investigation or not, however, he reiterated that he had stated whatever he had deposed during the trial. In the case since the Investigating Officer was not examined without any explanation, certainly defence case was prejudiced due to the reason that the Investigating Officer was the only competent person to explain after perusing case diary as to whether the fact which P.W. 4 had stated during trial was actually stated by him during investigation or not. However, since the Investigating Officer was not examined, we ourselves asked learned Additional Public Prosecutor to examine the case diary and after examining case diary Sri Ajay Mishra, learned Additional Public Prosecutor stated that statement under Section 161 of the Cr.P.C. of Sushil Yadav (P.W. 4) was recorded on 06.06.2006. However, in his cross- examination in paragraph no. 9 this witness has stated as if on the date of occurrence i.e. 25.5.2006 four hours after the occurrence his statement was recorded. This suggests that this witness had given incorrect and false evidence. In paragraph no. 13 of his cross -examination suggestion was given regarding false implication of entire family member. In paragraph no. 15 of his crossexamination this witness accepted that in the case all accused persons are from one khandan (one family). On examination of his evidence in paragraph no. This suggests that this witness had given incorrect and false evidence. In paragraph no. 13 of his cross -examination suggestion was given regarding false implication of entire family member. In paragraph no. 15 of his crossexamination this witness accepted that in the case all accused persons are from one khandan (one family). On examination of his evidence in paragraph no. 13 of the cross- examination it is also evident that deceased, this witness (P.W. 4) and others were accused in the case of murder of one Narad Yadav, who was non else but own brother of Socho Yadav [ one of the F.I.R. named accused] as well as brother of appellant (Dinesh Yadav). Accordingly, possibility of false implication may not be ruled out regarding which a plea was taken under Section 313 of the Cr.P.C. by all the appellants that they were falsely implicated. The doctor, who conducted post-mortem examination on the dead body of the deceased was examined as PW. 7 and he was one of the members of the Medical Board, which conducted post -mortem examination. This witness has proved the post -mortem examination report, which was marked as Exhibit- 3. This witness in the post-mortem examination had noticed the following facts:- “(i). Fracture, lower 3rd of shaft of radius & ulna bone of left forearm. (ii) Stitched wound on base of index finger of left hand. (iii) stitched wound on the front of right leg (iv) Extensive and multiple bruises (blackish) over the whole of the both upper limbs. There was massive swelling of the limbs. (v) Extensive and multiple bruises (blackish) over the whole of the both lower limbs. There was massive swelling of the limbs. (vi) Extensive and multiple bruises (blackish) over whole of the back and both shoulders region with massive swelling, rigour mortis present in all four limbs. 4. On Dissection – subcutaneous tissues of old blood in chest wall Fluid (Pinkish) present in the plural cavity Lungs- congested, petechial haemorrhages on both lungs were present more over the lower lobes heart- Slightly dilated and partially filled with blood Major veins were occluded with blood clots. Alveoti of lungs were filled with haemorrag fluids. Lower limbs- There was extensive haemotoma in the calf muscles of both lower limbs. Multiple Thrombus were present in the veins. Upper limbs-Subcutaneous extra vessels of old clotted blood were present. In the both upper limbs. Alveoti of lungs were filled with haemorrag fluids. Lower limbs- There was extensive haemotoma in the calf muscles of both lower limbs. Multiple Thrombus were present in the veins. Upper limbs-Subcutaneous extra vessels of old clotted blood were present. In the both upper limbs. There was fracture of lower 3rd of shaft of radius and ulna bones of left forearm with haemotoma in the surrounding tissues black Subcutaneous extravassation of old clotted blood present. Cause of death. In their opinion cause of death was due to multiple injuries and fracture leading to delayed thromboembolism in lungs which is due to venous thrombosis in the lower limb. Weapon used: hard & blunt substance. Time elapsed since death – between 6 to 24 hours.” 12. On examination of the evidence of P.W. 7 as well as on examination of the post- mortem examination report (Exhibit -3) it is evident that on the person of the deceased multiple injuries were found and most injuries were bruises, besides fracture injury. Post- mortem examination report does not indicate as to whether the deceased had received any such injury on right temporal region, which was specific case of P.W. 4. In the case Investigating Officer was not examined nor any cogent reason has been assigned by the prosecution for non-examination of Investigating Officer. Besides this, it has been noticed that though occurrence had taken place on 25.05.2006 at 1.00 P.M. and fardbyan was shown to be recorded on the same day at 8.00 P.M. how the formal F.I.R. was drawn on 04.06.2006. This delay has not at all been explained that too in absence of the Investigating Officer. 13. Considering the entire facts and circumstances, it is evident that prosecution has miserably failed to prove its case beyond all reasonable doubt, and as such, by way of extending benefit of doubt it is necessary to interfere with the judgment of conviction and sentence. Accordingly, judgment of conviction dated: 01.10.2012 and sentence dated: 04.10.2012 in respect of all the appellants in S.T. Case No. 202 of 2007 / S.T. Case No. 219 of 2007 (arising out of Salakhuwa P.S. Case No. 71 of 2006) passed by Sri Ram Pratap Asthana, learned Presiding Officer, Adhoc Additional Sessions Judge – 1st, Saharsa is hereby set aside and both Appeals are allowed. Appellant (Dinesh Yadav) in CR. Appellant (Dinesh Yadav) in CR. APP (DB) No. 1131 of 2012 after remaining in custody for more than seven years was released on bail during pendency of Appeal and since his conviction and sentence has been set aside, he is discharged from liability of his bail bond. So far case of three appellants in CR. APP (DB) No. 1079 of 2012 is concerned, they are still in custody and in view of setting aside of conviction and sentence of those appellants, they are hereby directed to be released forthwith, if not wanted in any other case. 14. Both Appeals are allowed.