JUDGMENT : Shree Chandrashekhar, J. Tulsi Ram @ Mahto, Vinod Ram @ Mahto and Bal Kumar Mahto were named as accused in Murhu P.S. Case No. 18 of 2011 which was registered on the basis of fardbeyan of Indu Devi recorded on 09.03.2011 at 17 : 15 hrs. at Korakel Malalarang Tand for committing murder of Hiran Kumar Ram, her husband. 2. After the investigation a charge-sheet was submitted against them and the case of Bal Kumar Mahto was separated as he was declared a juvenile. In Sessions Trial No. 701 of 2011, Tulsi Mahto and Vinod Mahto, the appellants, have faced the charge under section 302/34 of the Indian Penal Code (in short, IPC) and they have been convicted and sentenced to R.I. for life and a fine of Rs. 10,000/- each under section 302/34 IPC. 3. During the trial the prosecution has examined six witnesses – all the eye-witnesses are intimately related to Hiran Kumar Ram. The case of the prosecution is that there was a dispute between both sides for partition of the joint family properties. Hiran Kumar Ram was not given his share in the joint family properties and he was forced to leave the village. On 09.03.2011 he had gone to Korakel for getting sabbal and kudal to cut Silk Cotton (Semal) trees which according to him were standing on the ancestral land at Malalarang Tand. At that time, Tulsi Mahto, Vinod Mahto and Bal Kumar Mahto threatened him and warned not to stake any claim over the family property. Hiran Kumar Mahto came back home and narrated the incident to his wife and after some time he had gone to Malalarang Tand with wood-cutters. The accused persons came there and on the pretext of finding an amicable solution took him at some distance and behind the bushes committed his murder. The two sons and sister of Hiran Kumar Ram who had gone at Malalarang Tand with food for wood-cutters have seen the accused persons assaulting him. 4. PW-1 and PW-4 are sons of Hiran Kumar Ram; PW-2 is his wife and; PW-3 is his sister. Their testimony is challenged on the ground that their evidence is tainted on account of past enmity. Mrs. Priya Shreshtha the learned Spl. PP submits with reference to the Judgment. In Yogesh Singh v. Mahabeer Singh & Ors. 4. PW-1 and PW-4 are sons of Hiran Kumar Ram; PW-2 is his wife and; PW-3 is his sister. Their testimony is challenged on the ground that their evidence is tainted on account of past enmity. Mrs. Priya Shreshtha the learned Spl. PP submits with reference to the Judgment. In Yogesh Singh v. Mahabeer Singh & Ors. (2017) 11 SCC 195 , that on the ground that the witnesses are closely related to the deceased their evidence cannot be discarded. The law on worth of the evidence of an interested witness is quite settled now. In Dinesh Kumar v. State of Rajasthan, (2008) 8 SCC 270 , the Hon’ble Supreme Court has observed that merely because the witnesses are related to the victim their evidence cannot be discarded and in State of Rajasthan v. Kalki, (1981) 2 SCC 752 , it has been held that in the deposition of the prosecution witnesses there are always normal discrepancies however honest and truthful they may be in a later decision, in Mano Dutt v. State of U.P. (2012) 4 SCC 79 , the Hon’ble Supreme Court in para No. 24 has observed thus; “24. ……..Firstly there is no bar in law in examining family members, or any other person, as witnesses. More often than not, in such cases involving family members of both sides, it is a member of the family or a friend who comes to rescue the injured. Those alone are the people who take the risk of sustaining injuries by jumping into such a quarrel and trying to defuse the crisis. Besides, when the statement of witnesses, who are relatives, or are parties known to the affected party, is credible, reliable, trustworthy, admissible in accordance with the law and corroborated by other witnesses or documentary evidence of the prosecution, there would hardly be any reason for the Court to reject such evidence merely on the ground that the witness was a family member or an interested witness or a person known to the effected party.” 5. PW-2, Indu Devi is the wife of Hiran Kumar Ram. She has deposed in the Court that her husband was working with M/s. CCL and staying at Ranchi whereas she was staying at Murhu with her children and sister-in-law. PW-2, Indu Devi is the wife of Hiran Kumar Ram. She has deposed in the Court that her husband was working with M/s. CCL and staying at Ranchi whereas she was staying at Murhu with her children and sister-in-law. On08.03.2011 her husband came home at Murhu for repairing the house and next day morning he had gone to Malalarang Tand with woodcutters for cutting Semal tree. Her husband was threatened by Tulsi Mahto, Vinod Mahto and Bal Kumar Mahto that if he tries to cut the tree they would kill him. Her husband however brought sabbal and hoe (kudal) and gave to the woodcutters and thereafter he came back home for breakfast. At that time he informed her that the accused persons have threatened to kill him. She tried to reason with her husband but he did not agree and insisted that he should get at least one Semal Tree. Thereafter her husband had gone to Malalarang Tand and at about 12 noon he called at the mobile of his sister and asked for food for the woodcutters. She has sent food with her sons Dhanshn Kumar and Gagan Kumar and sister-in-law Munna Devi who have later on told her that the accused persons on the pretext of compromises accompanied Hiran Kumar Ram to some distance on western side and after some time they heard his cries. They had then gone there and seen the accused persons assaulting him. Before that she had called here husband twice but he did not pick up the phone, so she took a rickshaw and at around 15.30 p.m. reached Malalarang Tand. There she met the woodcutters who were readying to go home and on enquiry they told her that there, was a big fight and three persons had taken her husband to western direction. They have also told her that out of those three persons one was addressing her husband as uncle and another as brother. 6. PW-1, PW-3 and PW-4 have also been projected by the prosecution as eye-witness and in the Court they have stated that they have seen the accused persons assaulting Hiran Kumar Ram. 7. They have also told her that out of those three persons one was addressing her husband as uncle and another as brother. 6. PW-1, PW-3 and PW-4 have also been projected by the prosecution as eye-witness and in the Court they have stated that they have seen the accused persons assaulting Hiran Kumar Ram. 7. The learned counsels for the appellants have referred to various paras in the testimony of these witness to demonstrate that they have not seen the actual occurrence and their testimonies are so inconsistent with each other that it would be hazardous to place reliance on their evidence. 8. In her cross-examination, PW-2 has stated that she knows Hindi and she had read the fardbeyan which according to her was correctly written, but in the same vein next in her cross-examination she says that she did not read her fardbeyan rather she had given a written fardbeyan. She says that the distance between Murhu to Malalarang Tand is three kilometers and it takes about 15 to 30 minutes to travel the distance and she has admitted that Dadri Chowk is on the way to Malalarang Tand. She was confronted with her statement made before the police under Section 161, CrPC whereunder she did not tell that at 12.00 noon her husband had called at the mobile phone of her sister-in-law and asked food for the woodcutters and thereafter she had sent food with her sons and the sister-in-law and that thereafter they have informed her about the occurrence. Though she has stated in the Court to have made such statements before the police, but, these facts have been proved through the statement of the investigating officer who has affirmed in the Court that she did not state before him about call by her husband and food for the woodcutters. She has admitted in para No. 32 of her deposition that she did not tell the police that all three accused persons were assaulting her husband and out of them Tulsi Mahto had caught his legs, Bal Kumar Mahto by his hand while Vinod Mahto hit him till he died. She has admitted in para No. 32 of her deposition that she did not tell the police that all three accused persons were assaulting her husband and out of them Tulsi Mahto had caught his legs, Bal Kumar Mahto by his hand while Vinod Mahto hit him till he died. She has further admitted that she did not tell the police that she had reached Malalarang Tand at 15.30 p.m. Section 145 of the Evidence Act indicates how contradiction in the evidence of a witness shall be taken and Section 155 of the Evidence Act enables the defence to impeach the credibility of a witness by proof of his former inconsistent statement; the former statement should have the effect of discrediting the present statement. In Bhagwan Jagannath Markad v. State of Maharashtra, (2016) 10 SCC 537 , the Hon’ble Supreme Court has observed that merely because latter statement of a witness is at variance to the former to some extent it is not enough to be treated as contradiction, however, the inconsistency or omission in the testimony of a prosecution witness on a vital point is a ground to doubt truthfulness of the witness. In State of Rajasthan v. Rajendra Singh (2009) 11 SCC 106 , the witness stated in the Court about snatching of gun from the accused and he was contradicted by his police statement wherein he had not stated anything regarding snatching of the gun. The Hon’ble Supreme Court has held that omission on the part of the witness on such a vital point has to be treated as a contradiction and it creates a serious doubt about truthfulness of his version. On her own saying, when PW-2 says that her sons and sister-in-law have told her that they have seen the accused persons assaulting her husband, she is not an eye-witness to the occurrence and what has been proved by the defence that she did not tell the police regarding call from her husband asking food for the woodcutters would certainly create a doubt whether PW-1, PW-3 and PW-4 had gone to Malalarang Tand with food for the woodcutters. The improvements in her testimony in the Court have seriously shaken her own credibility and the veracity of the prosecution story. 9. PW-1 has deposed in the Court that on 09.03.2011 has father had gone to Malalarang Tand with woodcutters for cutting Semal tree. The improvements in her testimony in the Court have seriously shaken her own credibility and the veracity of the prosecution story. 9. PW-1 has deposed in the Court that on 09.03.2011 has father had gone to Malalarang Tand with woodcutters for cutting Semal tree. When his father had gone for getting tanga and sabbal the accused persons threatened him and asked not to cut the tree. He has further stated that he along with his brother and aunt had gone to Malalarang Tand with food for the woodcutters at around 12.30 pm. and there he has found Tulsi Mahto, Vinod Mahto and Bal Kumar Mahto; Vinod Mahto was carrying a tanga. Tulsi Mahto asked his father to come along for discussion and after sometime he heard cries of his father. He has gone there and seen the accused persons assaulting his father. PW-3 and PW-4 have also deposed in the Court in a similar manner and they have claimed that they have seen the accused persons assaulting Hiran Kumar Ram. 10.PW-1 has admitted in his cross-examination that he came back home at about 15.30 p.m. and after about one hour he had again gone to the place of occurrence-second time he has reached there by 17.30 pm. In para No. 15 of his cross-examination he has stated that when he came back home he narrated the incident to his sister who was at home and in para No. 17 of his cross-examination he says that when he came back home the second time he narrated the incident to his mother. These statements of PW-1 have to be examined in the light of the evidence of PW-2 who has stated that she reached the place of occurrence at about 15.30 p.m. From the evidence of PW-1 and PW-2 it can be gathered that PW-2 was not at home at about 15.30. p.m. and this is confirmed by her also; she has stated that at 15.30 p.m. she was at the place of occurrence. But from what PW-1 has stated in para No. 17 of his cross-examination it can be inferred that PW-1 has not seen the occurrence. He says that he has also gone to the place of occurrence at about 17.00 p.m. and as PW-2 says she was also present there at that time. But from what PW-1 has stated in para No. 17 of his cross-examination it can be inferred that PW-1 has not seen the occurrence. He says that he has also gone to the place of occurrence at about 17.00 p.m. and as PW-2 says she was also present there at that time. If both of them were at the place of occurrence at 17.00 p.m., PW-1 saying that when his mother came back home he has informed her about the incident would create a doubt whether he has actually seen the occurrence because he would have told his mother about the incident when he first met her at the place of occurrence. PW-1 is not a trustworthy person is reflected from his conduct also he says that after murder of his father he has stayed there for about two and half hours, but did not send his brother and aunt home. The prosecution witnesses have admitted that the distance between the place of occurrence and their home was about three kilometers and on the way there is a police station, but they did not inform the police or anybody else. They, however, says that they have called Arun Mahto and Dashrath Mahto. Since the independent witness were not produced during the trial therefore truthfulness of the above statements made by PW-1, PW-3 and PW-4 cannot be tested. Moreover, if they can call the villagers it is unexplainable why they have not called the police. The woodcutters were not produced during the trial and it is surprising that after the occurrence the woodcutters who according to PW-2 have informed her that there was a big fight between her husband and three others and who have heard cries of her husband still, did not try to find out what actually had happened. One of the villagers, namely, Arun Mahto who was allegedly called by the prosecution witnesses at the place of occurrence has been examined by the defence as DW-1. He is uncle of Tulsi Mahto, he has deposed in the Court that on hearing hullah of the villagers he had gone to the place of occurrence and the police has arrived there after about 15 minutes. From the statement of DW-1 also it appears that no one has seen how Hiran Kumar Ram was murdered. 11. Beside the above, the conduct of PW-1, PW-3 and PW-4 was highly unnatural. From the statement of DW-1 also it appears that no one has seen how Hiran Kumar Ram was murdered. 11. Beside the above, the conduct of PW-1, PW-3 and PW-4 was highly unnatural. As rightly submitted by Mr. Ajit Kumar, the learned counsel that if at all these witnesses were at the place of occurrence when Hiran Kumar Ram was assaulted their conduct in not trying to save him is sufficient to discredit them. There were three persons on each side and it is not in dispute that one of the accused was a child and the other one was an old man, whereas PW-1 and PW-4 were quite young; at the time of the occurrence PW-1 was aged about 16 years. This being the factual scenario, it is difficult to accept the explanation o PW-1, PW-3 and PW-4 that they were frightened and therefore did not try to save Hiran Kumar Ram. Their conduct in not informing the police or any one including the informant is highly unnatural and unbelievable. In a recent judgment in Amar Singh v. State (NCT in Delhi) Criminal Appeal (D.B.) No. 335 of 2015 (judgment dated 12.10.2020), the unnatural conduct of two brothers in not making any attempt to intervene and save their other brothers being assaulted by the assailants who were armed with hockey sticks and knife has been held by the Hon’ble Supreme Court to be totally against natural human behaviour, which would cast a serious doubt of shadow on their presence on the spot. 12. There are other circumstances also which create a doubt on complicity of the appellants in murder of Hiran Kumar Ram. In her fardbeyan the informant has not spoken about Hiran Kumar Ram asking her to send food for the wood-cutters. On the contrary she has stated that her husband called her to inform that the accused persons are threatening him and he would come back home for lunch. In the Court she has not claimed that when she had gone to the place of occurrence PW-1, PW-3 and PW-4 were there, whereas PW-1 has stated that he remained at the place of occurrence for about two and half hours. In the Court she has not claimed that when she had gone to the place of occurrence PW-1, PW-3 and PW-4 were there, whereas PW-1 has stated that he remained at the place of occurrence for about two and half hours. She says that after some search she has found the dead body of her husband, whereas others who claim to be the eye-witness say that they had called three villagers who have remained with them at the place of occurrence, But surprisingly, they have not met each other there. They have tried to improve their version of the occurrence in the Court and their testimony contains more chaff than grain. The inconsistencies in the testimony of the prosecution witness and improvements in their evidence in the Court have made them unreliable witnesses. 13. PW-6, Dr. Vijay Kumar Prasad who has conducted the autopsy over the dead body of Hiran Kumar Ram on 10.03.2011 has found one incised wound of the size of “4 inches x 1 inch”, bone deep. The medical evidence is also not suggesting that PW-1, PW-3 and PW-4 have seen the actual assault on Hiran Kumar Ram. They have deposed in the Court that all three accused person were assaulting Hiran Kumar Ram, but, as noticed above only one injury has been found on his person. 14. In the aforesaid facts and circumstance, we hold that the prosecution witnesses have not seen actual assault on Hiran Kumar Ram and they are not the eye-witnesses. 15. There was a land dispute between the parties and both sides were inimical to each other. It is by now quite a settled proposition in law that enmity cuts both sides. The prosecution has tried to demonstrate that the relation between both sides was bitter and when Hiran Kumar Ram tried to enforce his right over the ancestral land the accused persons have killed him, but from the prosecution. Evidence it is not established that any one has seen the actual assault upon Hiran Kumar Ram. There is one circumstance which raises an accusing finger to the appellants that in the morning the accused persons held a threat to Hiran Kumar Ram, however, there is serious inconsistency in the testimony of the prosecution witnesses on threat by the accused person to Hiran Kumar Ram in the morning of 09.03.2011. There is one circumstance which raises an accusing finger to the appellants that in the morning the accused persons held a threat to Hiran Kumar Ram, however, there is serious inconsistency in the testimony of the prosecution witnesses on threat by the accused person to Hiran Kumar Ram in the morning of 09.03.2011. The fact that Hiran Kumar Ram had called his wife at about 12.30 p.m. and asked her to send food for the woodcutters has also not been established by the prosecution. The prosecution story that Hiran Kumar Raw called at the mobile phone of PW-3 is doubtful for the reason that she has given a very unusual explanation to a suggestion of the defence that when she had gone to the place of occurrence along with PW-1 and PW-4 taking food for the wood cutters she had left her mobile phone at home. 16. For the aforesaid reasons, the eye-witnesses have rendered themselves unreliable and the manner of occurrence as is reflected in the medical evidence is also quite inconsistent with the prosecution case. The crime weapon was not seized by the investigating, officer; the independent witnesses were not produced during the trial; no sketch-map was prepared and; serological report on blood-stained soil was not obtained. Above all, it is quite unbelievable that Hiran Kumar Ram would have gone with accused persons behind the bushes for a compromise talk. Had the eye-witnesses or the woodcutters been present at the place of occurrence and seen the actual incident they would have intervened and tried to save Hiran Kumar Ram. From the above facts, it is quite apparent that they were not present at the time of assault on Hiran Kumar Ram and in order to build a case against the accused persons they have faltered in the cross-examination and tendered inconsistent and contradictory evidence in the Court. 17. To conclude, we hold that the prosecution has failed to prove the charge against the appellants. 18. Therefore, the judgment of conviction of the appellant, namely, Tulsi Ram @ Mahto and the appellant, namely, Vinod Ram @ Mahto under Section 302/34, IPC dated 25.07.2013 and the order of sentence of R.I. for life and a fine of Rs. 10,000/- each under Section 302/34, IPC dated 29.07.2013 passed by the learned Judicial Commissioner-1, Khunti in Sessions Trial No. 701 of 2011 are set-aside. 19. 10,000/- each under Section 302/34, IPC dated 29.07.2013 passed by the learned Judicial Commissioner-1, Khunti in Sessions Trial No. 701 of 2011 are set-aside. 19. The appellants above-named are acquitted of the charge under Section 302/34, IPC framed against them in Session Trial No. 701 of 2011. 20. Mrs. Priya Shreshtha, the learned Spl. PP states that both the appellants are in custody. 21. Accordingly, the appellant, namely, Tulsi Ram@Mahto [in Criminal Appeal (D.B.) No. 696 of 2013] and the appellant, namely, Vinod Ram @ Mahto [in Criminal Appeal (D.B.) No. 899 of 2013] who are in custody shall be released forthwith, if not wanted in connection to any other case. 22. In the result, Criminal Appeal (D.B.) No. 696 of 2013 and Criminal Appeal (D.B.) No. 899 of 2013 are allowed. 23. Let a copy of the judgment be transmitted to the Court concerned and the concerned Jail Superintendent through ‘Fax’. 24. Let the lower Court records be sent to the Court concerned forthwith. Appeals allowed.