JUDGMENT : (Rongon Mukhopadhyay, J.) 1. Heard Mr. T. N. Verma, learned amicus curiae for the appellants and Mr. Shailendra Kumar Tiwari, learned Spl. P.P. 2. Since both these appeals arise out of a common judgment, they are being disposed of by this common order. 3. These appeals are directed against the judgment and order of conviction and sentence dated 06-06-1997 (sentence passed on 09- 06-1997) passed by Sri Ghanshyam Prasad, learned Sessions Judge, Deoghar in Sessions Case No. 38 of 1994 whereby and whereunder the appellants have been convicted for the offences punishable under section 302/201/34 IPC and have been sentenced to life for the conviction under Section 302/34 IPC and rigorous imprisonment for 3 years for the conviction recorded under Section 201/34 IPC. They have also been sentenced to a fine of Rs. 2000/- each for the conviction under Section 302/34 IPC. All the sentences were directed to run concurrently. 4. The prosecution case arises out of the fardbeyan of Bhairo Mahto recorded on 04-09-1993 in which it has been stated that about 2 months back Lakhan Pandit of village Bisbaria had taken a loan of Rs. 200/- from the father of the informant on the assurance that the same shall be repaid by working in the farm of the father of the informant. However, Lakhan Pandit did not work for a single day in the farm at which, the father of the informant started demanding return of the money but Lakhan Pandit vacillated on such demand. On 03-09-1993, the father of the informant had left his house at 6:00PM by informing the wife of the informant that he is going to the house of Lakhan Pandit to demand his money. When the father of the informant did not return even at 8:00PM, the informant and his brother Gopal Mahato went with a torch to Bisbaria to the house of Lakhan Pandit. When they reached the said place, they saw in the light of the torch, their father Nunulal Mahato being surrounded by Lakhan Pandit, Jamadar Pandit, Kishan Pandit and Lakhi Pandit and they were armed with Lathi and Tangi. When the accused persons were abusing the father of the informant, they protested but the accused persons assaulted Nunulal Mahato, who fell down on the ground. When the accused persons were abusing the father of the informant, they protested but the accused persons assaulted Nunulal Mahato, who fell down on the ground. When the informant and his brother tried to save their father, the accused persons chased them with Tangi as a result of which they fled away and on coming home, they disclosed the incident to Ganesh Mahto, Jagdish Mahato, Laxmi Mahto, Badri Mahato and others but they advised that it was night and it would not be feasible to go to another village. In the morning, when the informant and others were going to Bisbaria village, they found at village Kadai the dead body of Nunulal Mahato lying on the field. Based on the aforesaid allegations, Jasidih P.S. Case No. 150/1993 was instituted for the offences under Section 302/201/34 IPC. On completion of investigation, charge sheet was submitted and after cognizance was taken, the case was committed to the Court of Sessions where it was registered as Sessions Case No. 38 of 1994. Charge was framed against the accused for the offence under Section 302/34 IPC and 201/34 IPC which was read over and explained to them in Hindi to which they pleaded not guilty and claimed to be tried. 5. The prosecution has examined as many as 12 witnesses in support of its case: P.W.1 Prakash Mahato has stated that on 03-09-1993 at 7:00-8:00PM, he was in his house when Bhairo Mahto came and disclosed that his father was assaulted by the accused persons and when he tried to intervene, he was also assaulted and he managed to flee away. Since night had fallen and it was raining, he and the others had decided to go in the morning. On the next morning when he, Badri, Jagdish, Bhairo, Gopal and others were going towards Bisbaria about 400-500 yards ahead, they found the dead body of Nunulal Mahato lying on the road and the body had marks of injury over it. In cross-examination, he has deposed that after seeing the dead body, the chowkidar went to call the Police. The Police had come and had recorded the statement of the witnesses. The deceased was not a money lender but sometimes used to give loan without any interest. In cross-examination, he has deposed that after seeing the dead body, the chowkidar went to call the Police. The Police had come and had recorded the statement of the witnesses. The deceased was not a money lender but sometimes used to give loan without any interest. P.W.2 Badri Prasad Verma has stated that the incident is of 18 months back and he was in his house when Bhairo and Gopal came to his house at 10:00-11:00 PM and disclosed that their father had gone to the house of Lakhan Pandit in Bisbaria to demand his money and they asked him to go to Bisbaria. When he along with others had decided to go to Bisbaria, it started raining. On the next morning, they started for Bisbaria, but about 400-500 yards from the house, they found the dead body of Nunulal Mahato lying beside the road. There were marks of lathi and tangi injuries on the body of the deceased. He has deposed that Bhairo and Gopal had disclosed that Lakhi, Kishan, Jamadar and Lakhan were assaulting Nunulal when they had gone to Bisbaria. In cross-examination, he has deposed that he had reached the place where the dead body was lying before sunrise. He did not find any person from Kadai village present at the said place. P.W.3 Jagdish Mahato has stated that it was 9:00-10:00PM when Bhairo, Gopal and Ganesh Mahto came to his house and Bhairo Mahto disclosed that his father Nunulal Mahato is being assaulted by Lakhan Pandit, Jamadar Pandit, Kishan Pandit and Lakhi Pandit with lathi and tangi and when they tried to save Nunulal Mahato, they were chased by the accused persons. He was asked to go to Bisbaria but he did not agree since it was night and it was raining. In the morning at about 5:00-6:00 AM he along with Bhairo, Ganesh, Gopal, Laxmi, Kameshwar, Badri were going towards Bisbaria, when at some distance, the dead body of Nunulal Mahato was found lying beside the road. There were marks of injury on the body. Bhairo had disclosed that Lakhan Pandit had taken a loan of Rs. 200/- from Nunulal Mahato but he did not work and when Nunulal Mahato demanded the money he was subjected to assault. He has proved his signature on the inquest report which has been marked as Exhibit-1. In cross-examination, he has deposed that Nunulal was not a money lender. Bhairo had disclosed that Lakhan Pandit had taken a loan of Rs. 200/- from Nunulal Mahato but he did not work and when Nunulal Mahato demanded the money he was subjected to assault. He has proved his signature on the inquest report which has been marked as Exhibit-1. In cross-examination, he has deposed that Nunulal was not a money lender. He has denied to have any knowledge that Nunulal was having illicit relationship with other women. P.W.4 Hari Mahato is the father of deceased Nunulal Mahato, who has stated that Nunulal had given money to Lakhan Pandit who had assured that the same will be returned by working in his field. Lakhan Pandit did not work and he also did not return the money despite repeated demands made by Nunulal Mahato. He has stated that about 18-19 months back, his son had gone to Bisbaria to demand the money but he did not return. Gopal and Bhairo went in search of Nunulal to Bisbaria at night and when they returned back, they disclosed that the accused persons were assaulting Nunulal Mahato. Due to heavy rains nobody went out in the night in search of Nunulal. In the morning, when the villagers went in search of Nunulal, his dead body was found lying beside the road. In cross-examination, he has deposed that Lakhan Pandit regularly used to take Rs.200/- and in lieu of which he used to work in the field. He has admitted that he had not seen the assault. P.W.5 Bhairo Mahto has stated that on the date of the incident his father had gone to the house of Lakhan Pandit at Bisbaria at 6:00PM for the purposes of getting his money which he had given on loan to Lakhan Pandit. At around 8:00-9:00 PM he and Gopal had gone to the house of Lakhan Pandit in search of his father. He found his father standing near the door of Lakhan Pandit and all the accused persons had surrounded him and were committing assault upon him with Tangi and Lathi. When he tried to save his father, he and Gopal were chased by the accused persons with an intention to assault them. Both fled away and came back to the house and disclosed about the incident to Ganesh Mahto, Badri Mahato, Laxmi Mahto and others. When he tried to save his father, he and Gopal were chased by the accused persons with an intention to assault them. Both fled away and came back to the house and disclosed about the incident to Ganesh Mahto, Badri Mahato, Laxmi Mahto and others. Since it was raining, they did not go to Bisbaria the same night and in the morning, when they were going, they located the dead body of Nunulal Mahato lying on the field. When the Police had come his fardbeyan was recorded. He has proved his signature in the fardbeyan which has been marked as Exhibit 1/1. In cross-examination, he has deposed that when he and his brother had gone in search of their father, they had seen their father standing in the door of Lakhan Pandit. The house of Bansi Pandit, Rudi Pandit, Badan Pandit and others are situated in front of the house of Lakhan Pandit. When they had reached, they had found their father being subjected to abuses. When the assault was being committed, he did not raise any alarm but fled away from the place of occurrence. They had fled from the scene once their father was done to death. He had not disclosed about the incident to anyone of Bisbaria village. The assault had taken place at around 8:00-9:00 PM. After disclosing about the incident to the villagers, they had come back to their house and remained awake the whole night. P.W.6 Kunti Devi has stated that her father-in-law Nunulal Mahato had returned in the evening with cattle and left for Bisbaria. He, however, did not return. When her husband and brother-in-law came to have dinner, she disclosed that their father has not returned at which both of them went in search of their father to Bisbaria. Both the brothers returned back and stated that their father is being assaulted by Lakhan Pandit, Jamadar, Kishan and Lakhi. This was also stated to the villagers but nobody went in search of her father-in- law as it was raining. When in the morning people started searching, they found the dead body of her father-in-law near to her house. In cross-examination, she has deposed that on hearing an alarm she had gone and seen the dead body of her father-in-law. Her father-in-law sometimes used to go to his field at night. When in the morning people started searching, they found the dead body of her father-in-law near to her house. In cross-examination, she has deposed that on hearing an alarm she had gone and seen the dead body of her father-in-law. Her father-in-law sometimes used to go to his field at night. P.W.7 Laxmi Mahto has stated that he was in his house when Gopal and Bhairo came and disclosed that their father Nunulal had gone to Bisbaria, but he had not returned. Due to night they had not gone in search of Nunulal. Bhairo and Gopal went in search of their father to Bisbaria and when they returned, they disclosed that all the four accused were assaulting their father and when they reached, they were chased by the accused persons. In the morning, they found the dead body of Nunulal at Kadai village. In cross-examination, he has deposed that he had come to know about the assault at 10:00-12:00 PM. P.W.8 Ganesh Mahto has been tendered by the prosecution. P.W.9 Gopal Mahato has stated that it was 9:00 PM when he had gone to the house of Lakhan Pandit at Bisbaria. Jamadar, Lakhi, Kishan and Lakhan were abusing his father and had thereafter, started assaulting him with lathi and tangi. He and his brother Bhairo Mahto tried to save their father but they were chased away by the accused persons. On returning to the village, they had sought the help of Ganesh, Jagdish and others to save their father but since it was night, nobody was ready to go. In the next morning, the dead body was found at a distance of 500 yards from the village. In cross-examination, he has deposed that when he and his brother had gone to Bisbaria his father was already being assaulted. After 5-10 minutes, his father fell on the ground. When he had raised an alarm, nobody from village Bisbaria came to their assistance. On the east side of the house of Lakhan, there are 20-25 houses, while on the western side, there are 2-4 houses apart from the house of Sadho Pandit. He and his brother had fled from Bisbaria. Due to the rains, they did not inform the Police. P.W.10 Umakant Jha has stated that on 08-09-1993, no “Gamcha” was recovered from the agricultural field of Badri Mahato at village Kadai. P.W.11 Dr. He and his brother had fled from Bisbaria. Due to the rains, they did not inform the Police. P.W.10 Umakant Jha has stated that on 08-09-1993, no “Gamcha” was recovered from the agricultural field of Badri Mahato at village Kadai. P.W.11 Dr. Jai Prakash Mishra was posted as a Civil Assistant Surgeon at Sadar Hospital, Deoghar and on 05-09-1993 he had conducted autopsy on the dead body of Nunulal Mahato and had found the following: (i) Bruise on the left side of back over scapular and infra-scapular region 4” x 3”. (ii) Bruise on the left shoulder 2½” x 1½”. (iii) Bruise on left forearm over lateral aspect, 1” below elbow 2” x 1½”. (iv) Sharp cutting injury on left arm over lateral aspect 1½” above elbow 1” x 1/5” x muscle deep. (v) Lacerated injury over back of head on left side, about 3” away from left ear 1” x 1/5” x bone deep. (vi) Sharp cutting injury over upper portion of head on left parietal region 4½” above left year 1½” x 1/5” x bone deep. (vii) Sharp cutting injury over right side of head 4” above right ear, 2” x 1/5” x bone deep. The cause of death was due to hemorrhage and shock as a result of the above-mentioned injuries. He has proved the post mortem report which has been marked as Exhibit-2. P.W.12 Rasool Alam was posted as an Assistant Sub-Inspector at Jasidih P.S. and on 04-09-1993, he had recorded the fardbeyan of Bhairo Mahto and had himself started the investigation. He had recorded the re-statement of the informant and had inspected the place of occurrence which is about 700 yards in the southwest from village Kadai and 400 yards on the east of village Khaspeta where the dead body of Nunulal Mato was lying beside an unmetalled road. There were several marks of injury on the body. About half a kilometer from the place of occurrence, village Bisbaria is situated. The second place of occurrence is the thatched house of Lakhan Pandit and Jamadar Pandit. About 100 yards from the house a red ‘Gamcha’, said to be belonging to the deceased, was seized. On completion of investigation, he had submitted charge sheet. He has proved the fardbeyan which has been marked as Exhibit-3. In cross-examination, he has deposed that Bisbaria village consists of 100 houses. He had not conducted a T.I.P. of the ‘Gamcha’. About 100 yards from the house a red ‘Gamcha’, said to be belonging to the deceased, was seized. On completion of investigation, he had submitted charge sheet. He has proved the fardbeyan which has been marked as Exhibit-3. In cross-examination, he has deposed that Bisbaria village consists of 100 houses. He had not conducted a T.I.P. of the ‘Gamcha’. 6. The statements of the accused were recorded under section 313 Cr.P.C. in which they have denied their complicity in the murder. 7. It has been submitted by Mr. T. N. Verma, learned amicus curiae for the appellants that the appellants have been framed in this case even though there is no iota of evidence against them. It has been submitted that P.W.5 and P.W.9 claim themselves to be the eye witnesses, but their conduct speaks otherwise as even inspite of witnessing the assault, they did not take any deterrent measures to at least prevent the assault. P.W.5 and P.W.9 had rushed back to their village and they took no efforts to inform the village chowkidar or the Police about the incident. No incriminating articles were seized from the place of occurrence save and except the ‘Gamcha’, but the same was not put on T.I.P. to ascertain as to whether the same belonged to the deceased or not. He has submitted that although the house of Lakhan Pandit had several houses in the vicinity, but there seems to be no presence of the residents of village Bisbaria and none of the witnesses examined by the prosecution belongs to the said village. 8. Mr. Shailendra Kumar Tiwari, learned Spl. P.P. has primarily relied upon the evidence of P.W.5 and P.W.9 as according to him the assault committed upon Nunulal Mahato by the accused person have been established beyond any reasonable doubt and the same stands fortified by the findings recorded in the post-mortem report. 9. We have heard the learned counsel for the respective parties and have also perused the trial court records. 10. The entire episode leading up to the murder of Nunulal Mahato, as per the prosecution, commenced with the loan of Rs. 200/- given to Lakhan Pandit, who had assured Nunulal Mahato that he will clear such debt by working in the field of Nunulal Mahato. 10. The entire episode leading up to the murder of Nunulal Mahato, as per the prosecution, commenced with the loan of Rs. 200/- given to Lakhan Pandit, who had assured Nunulal Mahato that he will clear such debt by working in the field of Nunulal Mahato. Lakhan Pandit did not keep his promise and instead when Nunulal Mahato had gone to the house of Lakhan Pandit at village Bisbaria to demand his money, he was assaulted and done to death by the accused persons with the help of Tangi and Lathi. 11. P.W.5 and P.W.9 claim themselves to be the eyewitnesses, but their conduct leaves much room for doubt. P.W.5, in his cross- examination, has stated about seeing the assault committed by the accused persons upon his father and had fled away from the scene once he had been done to death. He had not raised any alarm when the assault was taking place. Though there were several houses adjacent to the house of Lakhan Pandit, but neither P.W.5 nor P.W.9 sought any assistance from the neighbours. P.W.9 has stated about raising an alarm but none had come to their rescue. The evidence of P.W.5 and P.W.9 would suggest that the villagers of Bisbaria were totally oblivious to the incident of murder inspite of the brutal assault purportedly committed by the accused. In fact, though as per the prosecution, the main place of occurrence is the house of Lakhan Pandit at Bisbaria village but not a single witness from such village has been examined. As per P.W.1 it was the Chowkidar who had informed the Police about the occurrence after seeing the dead body in the morning which would indicate that P.W.5 and P.W.9 or for that matter the other witnesses who were aware about the assault could have informed the Chowkidar, but for the entire night they remained inactive and made no efforts to save Nunulal Mahato. All these factors would go to show that P.W.5 and P.W.9, who are the sons of the deceased Nunulal Mahato exuded an unnatural conduct as they silently witnessed the assault till the time their father died and without getting any threats from the accused persons fled away and spent the entire night at their house. All these factors would go to show that P.W.5 and P.W.9, who are the sons of the deceased Nunulal Mahato exuded an unnatural conduct as they silently witnessed the assault till the time their father died and without getting any threats from the accused persons fled away and spent the entire night at their house. The conduct of P.W.5 and P.W.9 seems to have given rise to a different scenario justified by the fact that the dead body of Nunulal Mahato was not found in village Bisbaria but was found at a distance of 400-500 yards from the village of P.W.5 and P.W.9. It also appears that no incriminating articles were recovered from the place of occurrence save and except, a ‘Gamcha’ purportedly belonging to the deceased, though admittedly the same was not put on test identification parade. 12. The learned trial court has erroneously put reliance upon the evidence of P.W.5 and P.W.9 without noting the unnatural conduct of both these witnesses expressing a non-chalant reaction inspite of witnessing the murder of their father. 13. We, therefore, on the basis of the discussions made hereinabove, set aside the judgment and order of conviction and sentence dated 06- 0-19697 (sentence passed on 09-06-1997) passed by Shri Ghanshyam Prasad, learned Sessions Judge, Deoghar in Sessions Case No. 38 of 1994. 14. This appeal is allowed. 15. Since the appellants are on bail, they are discharged from the liability of their bail bonds. 16. Before parting with this order, we take this opportunity to appreciate the assistance rendered by Mr. T.N. Verma, learned amicus curiae and direct the Member Secretary, High Court Legal Services Committee to extend the stipulated fees to Mr. Verma within a week of receipt of a copy of this judgment. 17. Let a copy of this judgment be also forwarded to the learned Member Secretary, High Court Legal Services Committee.