JUDGMENT : ARUN KUMAR RAI, J. 1. Heard Mr. A. K. Chaturvedi, learned counsel for the appellant in Criminal Appeal (DB) No. 05 of 1999 (R), Mr. Jitendra S. Singh, learned counsel for the appellant in Criminal Appeal (DB) No. 07 of 1999 (R) and Mrs. Priya Shrestha, learned Spl.P.P as well as Mr. Saket Kumar, learned A.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 03.12.1998 (sentence passed on 15.12.1998) passed by Mr. Sudarshan Upadhyaya, learned 1st Additional Sessions Judge, Chatra in S.T. No. 333 of 1995, whereby and whereunder the appellants have been convicted for the offences punishable under Sections 302/149, 148, 448, 341 and 364 I.P.C and have been sentenced to undergo rigorous imprisonment for life for the offence under Section 302/149 I.P.C. No separate sentence has been passed for the offences under Sections 148, 448, 341 and 364 I.P.C. 4. The prosecution case arises out of the Fardbayan of Birju Ram recorded on 06.09.1994 in which it has been stated that Ganauri Ram, the father of the informant, is a sympathizer of Lok Samiti, an institution being run in the village. It has been alleged that the village and its surrounding areas are under the influence of MCC, an extremist group. Ganauri Ram was in possession of some land over which Bhupendra Verma, who was associated with the extremist group, also claimed ownership. Bhupendra Verma had directed Ganauri Ram to vacate the land which was refused and resultantly he was issued threats. It has been alleged that on 16.09.1994 at 8.30 p.m. about 50-60 extremists variously armed came into the house of the informant and abducted Ganauri Ram who was sleeping in the verandah. The family members of the informant did not intervene since the extremists were armed with deadly weapons. When an alarm was raised, only 2-3 persons came. It has been alleged that the incident had taken place at the behest of Bhupendra Verma due to his land dispute with Ganauri Ram. In the morning the dead body of Ganauri Ram was recovered from near a river and the body was having several marks of injury. Based on the aforesaid allegations, Bashisthanagar P.S. Case No. 53 of 1994 was instituted. In the morning the dead body of Ganauri Ram was recovered from near a river and the body was having several marks of injury. Based on the aforesaid allegations, Bashisthanagar P.S. Case No. 53 of 1994 was instituted. 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 S.T. No. 333 of 1995. Charge was framed against the accused under Sections 148, 448, 341, 364 and 302/149 I.P.C which was read over and explained to the accused in Hindi to which he pleaded not guilty and claimed to be tried. 5. The prosecution has examined as many as 8 witnesses in support of its case. 6. P.W. 1 Birju Ram is the informant who has not supported the case of the prosecution and has been declared hostile by the prosecution. 7. P.W. 2 Shakuntala Devi has stated that she was sleeping when 5-7 persons came variously armed and had abducted her brother Ganauri Ram. She could not recognize any of the miscreants. In cross-examination she has deposed that after Ganauri Ram was abducted, she had raised a cry of alarm at which some of the inmates of the house had woken up. 8. P.W. 3 Kripal Ram has been tendered by the prosecution. 9. P.W. 4 Rameshwari Devi has stated that she was in her house when Kisun Mahato, Arjun Mahato, Sarjug Mahato, Babuni Mahato, Vinod Mahato, Jagdev Mahato, Guddu Singh, Manoj Singh, Ranju Singh and Sanju Singh came and took away her husband Ganauri Ram. Kameshwar Yadav was also one of the miscreants involved in the abduction. In the morning the Police was informed and they searched and located the dead body of her husband near the river bank. The miscreants who had come were armed with guns, Gandasa, spear, etc. The murder of her husband took place due to previous enmity with Bhupendra Singh. She has identified Arjun and Sarjug in the dock as Nandu and Arjun. In cross examination she has deposed that despite raising alarm nobody had come. The land which was the cause of attrition between her husband and Bhupendra Babu was being tilled by her husband for 20 years. 10. She has identified Arjun and Sarjug in the dock as Nandu and Arjun. In cross examination she has deposed that despite raising alarm nobody had come. The land which was the cause of attrition between her husband and Bhupendra Babu was being tilled by her husband for 20 years. 10. P.W.5 Pramod Kumar has stated that after having dinner he was sleeping on the ground outside the house when some persons came and asked his maternal uncle to get up. He woke up too and saw his uncle Ganauri Ram being taken away by these persons. He had identified Arjun Yadav and Nandu Yadav on the dock as the persons who had taken away Ganauri Ram. He had seen Ganauri Ram being assaulted with a dagger and had also seen the wound caused. In cross-examination he has deposed that he stays in his own house at village Banri Pipar. It takes about one hour to reach the house of his maternal uncle from his house. He does not know all the persons in his own village. He was sleeping and he had a sheet over him. When the miscreants started waking up his maternal uncle, he out of fear pulled the sheet over his head and removed it once his uncle was taken away. His brother had shown him both the accused. 11. P.W.6 Chotu Ram has stated that he was in his house and his father Ganauri Ram was sleeping outside when 10-20 persons variously armed had come and had taken away his uncle to the riverside. In the morning a search was made and the body was found in the river bank. In cross-examination he has deposed that he was sleeping inside the house while his parents and aunt were sleeping outside. He had seen from the courtyard his father being taken away by the miscreants. He had come out when his mother had raised an alarm. His statement was recorded by the Police in the same night. There was a land dispute between his father and Bhupendra Babu. 12. P.W. 7 Suresh Prasad Mishra has proved the formal F.I.R which has been marked as Exhibit-1. 13. P.W. 8 Vijay Ram has stated that he was in the Machaan when on hearing the sound of wailing of his mother and uncle he came to his house and saw 10 persons dragging away his father. 12. P.W. 7 Suresh Prasad Mishra has proved the formal F.I.R which has been marked as Exhibit-1. 13. P.W. 8 Vijay Ram has stated that he was in the Machaan when on hearing the sound of wailing of his mother and uncle he came to his house and saw 10 persons dragging away his father. He has stated that Arjun Yadav was not the person who was dragging his father. He has not identified Nandu Yadav in the dock. In cross-examination, he has stated that there was a land dispute between his father and Bhupendra Singh. 14. Two witnesses were examined as court witnesses. 15. C.W. 1 Dr. Shyam Nandan Singh was posted as a Civil Assistant Surgeon in Sadar Hospital, Chatra and on 17.09.1994 he had conducted autopsy on the dead body of Ganauri Ram and had found the following:- (i) Lacerated wound on left elbow, hunenemous protruding out about eight centimetre, would margin red oozing blood size of wound 15” 12 centimetre oval. (ii) Penetrated wound on right arm shin of tilia 1 st wound 7 x 3 centimetre an upper third bone deep, red, second 5 x 2 cm on middle third red bone deep. (iii) Punctured wound on left shin upper third 3 x 1 cm bone deep red and next 2 x 1 cm hone deep red. (iv) There is fracture of upper third tilia and falula left side. (v) Chest wall right, lower and anterior part-10 x 5 cm red grey bruise seen. (vi) Contusion over right scapular region and soldun 20 x 8 cm red gray. (vii) Lacerated wound of right pina on posterior surface 4 x 2 cm red gray. (viii) Punctured wound over right forearm 3 x 2 cm, 2 x 2 cm x 2 x 1 cm fracture of right upper four ribs posterior aspect. Rigor mortis was present on neck, lower limb and upper limb. Plural cavity contained blood about 300 ml contusion of lung right side upper lower 4 x 3 x 2 cm red. Bilateral chamber empty. Liver, spleen and kidney – Pale. The cause of death was opined to be due to hemorrhagic shock resulting from above mentioned injuries caused by hard, blunt and pointed objects. The post-mortem report has been proved and marked as Exhibit-2. 16. C.W. 2 Uma Shankar Singh has proved the Fardbayan which has been marked as Exhibit-3. 17. Bilateral chamber empty. Liver, spleen and kidney – Pale. The cause of death was opined to be due to hemorrhagic shock resulting from above mentioned injuries caused by hard, blunt and pointed objects. The post-mortem report has been proved and marked as Exhibit-2. 16. C.W. 2 Uma Shankar Singh has proved the Fardbayan which has been marked as Exhibit-3. 17. The statements of the accused were recorded under Section 313 Cr.P.C in which they have denied their complicity in the murder of Ganauri Ram. 18. The defence has examined one witness. 19. D.W. 1 Ram Pravesh Yadav has stated that his house is at some distance from the place of occurence. He was at a distance of 10 Degs from the house of Ganauri Ram. When on hearing an alarm he had gone to the house of Ganauri Ram the wife and son of Ganauri Ram had disclosed that 8-10 unidentified persons had taken him away. In cross-examination he has deposed that he had reached the house of Ganauri Ram after the incident had taken place. 20. It has been submitted by the learned counsel for the appellants that none of the witnesses have identified the appellants as the persons who had taken part in the abduction of Ganauri Ram. They have drawn the attention of the Court to the evidence of P.W. 4, P.W. 5 and P.W. 6 while submitting that the inherent contradictions in their evidence has diluted and demolished the case of the prosecution. 21. Learned Spl.P.P as well as learned A.P.P have submitted that P.W. 4 and P.W. 5 have identified the appellants being involved in the abduction of Ganauri Ram and the learned trial court has correctly appreciated such evidence while convicting the appellants. 22. We have heard the learned counsel for the respective parties and have also perused the trial court records. 23. In the Fardbayan, the informant has named several persons who had abducted Ganauri Ram and the name of the appellants also figure. However, the informant who has been examined as P.W.1 has been declared hostile by the prosecution as he had failed to identify the appellants in the dock and had clearly stated that they were not present at the time of the incident. Several inmates of the house where the incident took place, have been examined out of whom P.W. 2 and P.W. 6 have not named the appellants. Several inmates of the house where the incident took place, have been examined out of whom P.W. 2 and P.W. 6 have not named the appellants. So far as P.W. 5 is concerned, his cross-examination reveals that he had not seen the miscreants, but had felt their presence as he had put his sheet over his face when the miscreants came and removed it after his uncle was taken away. In view of such evidence, his claim of identifying both the appellants pales into oblivion. So far as P.W. 4 is concerned, she has not properly identified the appellants in the dock. 24. The aforesaid scenario would indicate that the appellants were not identified being the extremists who had taken away Ganauri Ram and committed his murder. Only one independent witness in the form of P.W. 8 has been examined who also has stated that the appellant Arjun Yadav was not one of the persons who had dragged Ganauri Ram from his house. The I.O. has not been examined which has prevented the defence in confronting him with the evidence of the witnesses. 25. On an overall conspectus of the case, it clearly transpires that the prosecution has miserably failed to prove its case against the appellants and consequently, we hereby set aside the judgment and order of conviction and sentence dated 03.12.1998 (sentence passed on 15.12.1998), passed by Mr. Sudarshan Upadhyay, learned 1 st Additional Session Judge, Chatra in S.T. No. 333 of 1995. 26. This appeal is allowed. 27. Since the appellants are on bail, they are discharged from the liabilities of their bail bonds.