JUDGMENT : Per Rongon Mukhopadhyay, J. : 1. Heard Mr. Ravi Prakash, learned amicus curiae for the appellants and Mr. Satish Prasad, learned A.P.P. 2. This appeal is directed against the judgment and order of conviction and sentence dated 25-09-1997 (sentence passed on 26-09-1997) passed by Sri Ghanshyam Prasad, learned Sessions Judge, Deoghar in Sessions Case No. 233/1995, whereby and whereunder, the appellants Madho Mahto, Ramdeo Mahto and Bhairo Mahto have been convicted for the offence punishable under Section 302 IPC, while the appellants Kamdeo Mahto, Nirmal Mahto and Parsuram Mahto have been convicted for the offence under Section 302/149 IPC and the appellant Nirmal Mahto has further been convicted under Section 323 IPC. The appellants Madho Mahto, Ramdeo Mahto and Bhairo Mahto have been sentenced to undergo imprisonment for life under Section 302 IPC and the appellants Kamdeo Mahto, Nirmal Mahto and Parsuram Mahto have also been sentenced to rigorous imprisonment for life under Section 302/149 IPC. No separate sentence has been passed for the conviction under Section 323 IPC. They have also been directed to pay a fine of Rs. 2,000/- each. 3. The appellants Ramdeo Mahto and Kamdeo Mahto have died during the pendency of this appeal and, therefore, this appeal stood abated against them vide order dated 09-01-2025. 4. The prosecution case arises out of the Fardbeyan of Jayanti Devi recorded on 26-05-1995 in which it has been stated that on 25-5-1995 at 8:00P.M., the father-in-law of the informant, after having dinner was sleeping in a cot outside the room when at midnight, there was a cry of alarm of the father-in-law of the informant. At this, the informant, who was sleeping in the courtyard, got up and awakened her sister-in-law Lalo Devi who was also sleeping nearby and both came out of their house and saw in the torchlight that Ramdeo Mahto was carrying the father- in-law of the informant on his lap and following him were Madho Mahto, Bhairo Mahto, Kamdeo Mahto, Nirmal Mahto and Parsuram Mahto and they were saying to commit the murder of the father of the informant and implicate Kamdeo Prasad Verma as the assailant. All the accused persons took the father-in-law of the informant to the open courtyard of Kamdeo Prasad Verma and started abusing him. All the accused persons took the father-in-law of the informant to the open courtyard of Kamdeo Prasad Verma and started abusing him. When the informant and her sister-in- law tried to save their father-in-law, Bhairo Mahto pushed the informant, while Nirmal Mahto assaulted Lalo Devi with a spear on her knee and hand. In the meantime, Ramdeo Mahto pierced the right chest of the father-in-law of the informant with a knife who started screaming and fell down on the ground. Madho Mahto and Bhairo Mahto also assaulted him with knife and after some time, the father-in-law of the informant died. Based on the aforesaid allegations Sarawan P.S. Case No. 34/95 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 Sessions Case No. 233/1995. Charge was framed separately against the accused under Section 302/120B, 302/149, 302 and 323 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 thirteen witnesses in support of its case: P.W.1 Ajij Ansari has stated that on hearing a cry of alarm he had gone to the house of Mukhiya ji where the daughter and sister-in-law of Mukhiya ji had disclosed that Ramdeo, Madho, Bhairo, Kamdeo, Nirmal and Parsuram have committed the murder of Mukhiya Jhagru Mahto with knives. He had signed on the inquest report. In cross-examination he has deposed that he had seen the dead body of Jhagru Mahto in the courtyard of Kamdeo Verma. On recall, due to amendment of charge, he has stated that all the accused belong to the same family. P.W.2 Dasi Devi has stated that it was 12:00-1:00AM and she was sleeping in her house when she heard Lalo Devi and her sister-in-law screaming that Mukhiya ji has been murdered. She came out with a torch and saw Ramdeo Mahto, Madho, Bhairo, Kamdeo, Nirmal and Parsuram fleeing away. Jhagru Mahto was seen lying on the ground in the courtyard in front of her house. The daughter and daughter-in-law of Jhagru Mahto were also present there. Bhola Mahto had also come and he was also disclosed about the accused persons committing the murder. Jhagru Mahto was seen lying on the ground in the courtyard in front of her house. The daughter and daughter-in-law of Jhagru Mahto were also present there. Bhola Mahto had also come and he was also disclosed about the accused persons committing the murder. She has a land at Bara Mouza, but the accused persons prevented her from occupying the said land. About 5-6 months prior to the occurrence, she had constructed a house at Bara and she was helped by Jhagru Mahto in the construction of the said house. The accused persons in order to get her falsely implicated, since she had constructed her house, had committed the murder of Jhagru Mahto in her courtyard. In cross-examination, she has deposed that on the date of occurrence her husband had gone to Muniyatand on account of the marriage ceremony of his niece. She had put on a torch the moment she had opened the door. The accused persons were fleeing away towards the east. She had a two-cell torch in her possession. When she had come out with the torch, Bhola Mahto was present. The villagers had assembled after the accused persons had fled away. Jhagru Mahto had taken the name of Bhola Mahto prior to his death. The distance between the house and the house of the accused is 50 hands. P.W.3 Gujar Verma has proved his signature in the seizure list of blood-stained earth which has been marked as Exhibit-1. P.W.4 Shiv Shankar Mahto has stated that he had gone to a marriage ceremony and when he returned in the morning, his wife Jayanti Devi and sister Lalo Devi had disclosed that the accused persons have committed the murder of his father. His father was a Pradhan who had helped Kamdeo Verma in constructing his house. Madho Mahto and the others were enraged about the construction and had earlier threatened him of committing either his murder or the murder of his father. In cross-examination, he has deposed that before his return, Bhola Mahto and Bipat Mahto had already informed the Police about the incident. He does not have any concern with the lands belonging to Kamdeo. No untoward incident had taken place at the time of construction of the house of Kamdeo Verma. The accused persons had threatened him and his father 8-10 days prior to the occurrence. He does not have any concern with the lands belonging to Kamdeo. No untoward incident had taken place at the time of construction of the house of Kamdeo Verma. The accused persons had threatened him and his father 8-10 days prior to the occurrence. In his examination, on recall, he has stated that his father was the Pradhan of the village which post he is now holding. P.W.5 Ram Prasad Mahto has stated that he had come back to his house on the second day of the incident and having seen a crowd gathered in the house of Kamdeo Verma, he had gone and found the dead body of Jhagru Mahto. The daughter and sister-in-law of Jhagru Mahto had disclosed that Ramdeo Mahto, Kamdeo Mahto, Madho, Nirmal, Bhairo and Parsuram had committed the murder of Jhagru Mahto. The Police had come and an inquest report was prepared. He has proved his signature in the seizure list of blood-stained earth which has been marked as Exhibit-1/1. He has also proved his signature in the inquest report which has been marked as Exhibit-1/2. In cross-examination, he has deposed that he had gone to the place of his maternal uncle one day prior to the incident. P.W.6 Jayanti Devi is the informant who has stated that on the date of the incident she along with her sister-in-law and father-in-law were present in the house. Her father-in-law was sleeping near the door of the house. At about midnight, her father-in-law started screaming at which she and Lalo Devi got up and opened the door and saw the accused persons present. Her father-in-law was taken away by Ramdeo Mahto and the other accused persons followed her. She and her sister-in-law followed the accused who stated that they will commit the murder of her father-in-law and get Kamdeo falsely implicated. Nirmal Mahto had assaulted Lalo Devi with a spear which resulted in her suffering injuries. The accused persons had taken her father-in-law to the open courtyard of Kamdeo Verma and after thrashing him on the ground, assaulted him by knives. She and her sister-in-law had become numb with fear. The accused persons had thereafter fled away. Dasi Devi, Bhola Mahto and Bipat Mahto had come to the place of occurrence. Her father-in- law was alive at that time and he had disclosed that Ramdeo, Bhairao and Madho had committed assault upon him. She and her sister-in-law had become numb with fear. The accused persons had thereafter fled away. Dasi Devi, Bhola Mahto and Bipat Mahto had come to the place of occurrence. Her father-in- law was alive at that time and he had disclosed that Ramdeo, Bhairao and Madho had committed assault upon him. The Police had come and recorded her fardbeyan. In cross-examination, she has deposed that her father-in-law did not have any connection with the accused. She and her sister-in-law were sleeping in two separate cots. There was no one sleeping inside the room. Her father-in-law was sleeping outside the house in front of the door. She had seen Ramdeo from a distance of 4-5 hands. She and her sister-in-law were following the accused and screaming and seeking for help to save Jhagru Mahto. Her father-in-law was assaulted with knives by Ramdeo Mahto, Madho and Bhairo. On recall, on amendment of charge, she has stated that she did not suffer any injury. Her father-in-law before his death had divulged the name of the assailants. P.W.7 Bharat Verma has proved his signature on the seizure list of blood-stained earth which has been marked as Exhibit-1/3. P.W.8 Bhola Mahto has stated that he was sleeping in his house when on hearing a commotion, he had come with a torch and went to the house of Kamdeo Verma. He had seen the accused persons fleeing away in the light of the torch. He had seen Jayanti Devi and Lalo Devi crying in the courtyard. Mukhiya ji was wriggling, but he disclosed the name of Ramdeo, Madho and Bhairo as the assailants. He thereafter, died. Since Mukhiya ji had helped Kamdeo in constructing the house, this antagonized the accused persons. In cross-examination, he has deposed that his house is at a distance of hundred hands from the house of Kamdeo. He had gone to the place of occurrence with Bipat and both had torches with them. In the morning, he and Bipat had gone to the Police Station where they had disclosed the entire incident and had also disclosed the name of the accused. He has stated that Mukhiya ji before his death had taken the name of three assailants. The Police had recorded his statement and he had signed on the same. Bipat had also signed on the same. His statement was once again recorded by the Police. He has stated that Mukhiya ji before his death had taken the name of three assailants. The Police had recorded his statement and he had signed on the same. Bipat had also signed on the same. His statement was once again recorded by the Police. No animosity existed at the time of construction of the house of Kamdeo. P.W.9 Bipat Mahto has stated that he was sleeping in his courtyard when he heard a commotion from the house of Kamdeo Verma and when he went towards the source of commotion with a torch light, he heard some sounds and when he proceeded further, he could see the accused persons variously armed, fleeing away towards the east. He had identified them in the torch light. Lalo Devi, Jayanti Devi and Dasi Devi were wailing at the place where Jhagru Mahto was lying. The accused persons were on inimical terms with Jhagru Mahto since he had helped Kamdeo Verma in constructing a house. In cross-examination, he has deposed that Jayanti Devi, Lalo Devi and Dasi Devi were crying besides the dead body of Jhagru Mahto. There were 15-20 persons who were present at the place of occurrence. He had gone to the Police Station with Bhola at 6 p.m. and had disclosed about the incident to the Police. He has further deposed that Mukhia ji had given Kamdeo Verma the idea to construct the house and he had given no other assistance. P.W.10 Dr. M.A. Sattar was posted as a Civil Assistant Surgeon in Sadar Hospital, Deoghar and on 27-05-1995, he had conducted autopsy on the dead body of Jhagru Mahto and had found the following: (i) Stab injury on right side of abdomen just below the costal margin, slightly lateral right nipple 2” x ½” x abdomen deep with blood clots. (ii) Stab injury on middle of back fo chest 2” left side of vertebral column 2¼” x ½” x 4” with blood clots. (iii) Stab cut injury on right scapula 3” x ½” x bone deep with blood clots. (iv) Multiple abrasion on both knees and multiple abrasion on both elbows. The cause of death was opined to be on account of hemorrhage and shock as a result of specially injury no. 1 associated with two other injuries all caused by penetrating, pointed and sharp weapon. He has proved the post-mortem report which has been marked as Exhibit-2. (iv) Multiple abrasion on both knees and multiple abrasion on both elbows. The cause of death was opined to be on account of hemorrhage and shock as a result of specially injury no. 1 associated with two other injuries all caused by penetrating, pointed and sharp weapon. He has proved the post-mortem report which has been marked as Exhibit-2. P.W.11 Lalo Devi is the daughter of the deceased who has stated that she was sleeping along with her sister-in-law in the courtyard while her father was sleeping just outside the door. It was around 12:00-01:00AM, when on hearing the cry of alarm of her father, her sister-in-law woke up and she also was awakened by her and when the torch was put on, she saw Ramdeo Mahto taking away her father in his lap and along with him were the rest accused persons. She and Jayanti Devi followed them. Ramdeo Mahto had thrown her father on the ground in the courtyard of Kamdeo Verma and thereafter, he struck a knife on his right chest followed by assault with knives by Madho Mahto and Bhairo Mahto. Parsuram Mahto had caught hold of his legs, Nirmal Mahto had caught hold of his hands while Kamdeo Mahto had caught hold of his head. When she asked the reason for assault, Nirmal Mahto assaulted him with spear and lathi. Her sister-in-law was pushed by Bhairo Mahto. While the accused persons were fleeing away, they were identified with the help of a torchlight by Dasi Devi and Bhola Mahto. Her father had stated about all the accused of having assaulted him and thereafter he died. There was a land dispute between Kamdeo Verma and the accused and her father had helped Kamdeo Verma in getting the house constructed. She was treated at Deoghar. In cross-examination, she has deposed that she and her sister-in-law did not shout even on hearing the cry of alarm of her father. Her father had screamed on the way to the house of Kamdeo and she and her sister-in-law also screamed. Ramdeo, Madho and Bhairo had inflicted one knife blows each upon her father. The other accused did not commit assault, but had caught hold of her father. At the time of the assault, nobody had come from the locality. When the accused persons had fled away, Dasi Devi had come out of her house. Ramdeo, Madho and Bhairo had inflicted one knife blows each upon her father. The other accused did not commit assault, but had caught hold of her father. At the time of the assault, nobody had come from the locality. When the accused persons had fled away, Dasi Devi had come out of her house. Bhola Mahto, Bipat and Chhajjo had also come but by that time the accused persons had fled away. P.W.12 Dr. A.K. Chatterjee was posted as a Civil Assistant Surgeon in Sadar Hospital, Deoghar and on 27-05-1995, he had examined Lalo Devi and had found the following: (i) One bruise 1” x ½” on left back. (ii) One swelling 1” x 1” on left eyebrow. Both the injuries were opined to be simple in nature caused by hard and blunt substance. He has proved the injury report which has been marked as Exhibit-3. P.W.13 Govind Mandal has proved the fardbeyan and the endorsement of the same which have been marked as Exhibit-4 and Exhibit-4/1. The formal FIR has been proved and marked as Exhibit-5. 6. The statements of the accused were recorded under Section 313 CrPC in which they have denied their complicity in the commission of murder of Jhagru Mahto. 7. The defence has examined two witnesses in support of its case: D.W.1 Fakir Prasad Verma was in his house on 26-05-1995 and at 6:00AM, on hearing a cry of alarm coming from the courtyard of Kamdeo, he had gone and seen the dead body of Jhagru Mahto. Jayanti Devi and Lalo Devi were saying that the murder has been committed by unknown persons. Nobody had taken the name of the accused. D.W.2 Shankar Rawani has proved the Sanha Entry No. 353 dated 26-05-1995 which has been marked as Exhibit-A. 8. It has been submitted by Mr. Ravi Prakash, learned amicus curiae that the prosecution has suppressed the initial FIR which was lodged by P.W.8 and later on, out of a well thought out plan, the fardbeyan of P.W.6 was recorded in which the name of the appellants figured. In such background facts, the subsequent FIR becomes a suspicious document. The place of occurrence has not been proved as the Investigating Officer has not been examined. All the witnesses are related to each other and their evidence has to be considered with more circumspection. In such background facts, the subsequent FIR becomes a suspicious document. The place of occurrence has not been proved as the Investigating Officer has not been examined. All the witnesses are related to each other and their evidence has to be considered with more circumspection. The identification of the appellants also seems to be doubtful as in the dead of night, they were identified with torch lights, some of which were of two cells making it all the more unusual to make such identification. It has been submitted that though there were several houses in the locality, but none seems to have arrived immediately to save Jhagru Mahto and such fact gains prominence from the evidence of P.W.11. It has further been submitted that parrot like questions have been put to the appellants in their examination under Section 313 CrPC. 9. Mr. Satish Prasad, learned A.P.P. has submitted that apart from P.W.6 and P.W.11, there are other witnesses also who had seen the appellants fleeing away. However, the evidence of P.W.6 and P.W.11 reveals about they having seen the entire episode from the forcible taking away of Jhagru Mahto till the assault committed upon him resulting in his death. 10. We have heard the learned counsel for the respective parties and have also perused the trial court records. 11. The fardbeyan of P.W.6 reveals about Jhagru Mahto, who was sleeping outside the house being forcibly taken away to the courtyard of Kamdeo Prasad Verma where he was brutally assaulted by the accused persons resulting in his death. P.W.6 and P.W.11 claim themselves to be the eyewitnesses. P.W.2, P.W.8 and P.W.9 are the witnesses to the accused persons fleeing away. However, such claim of P.W.2, P.W.8 and P.W.9 appears to have been demolished by P.W.11, who has stated that all these witnesses had come after the accused persons had left. Moreover, the identification made by them seems to be on the basis of seeing them in torchlight. It is to be borne in mind that the incident had taken place at midnight and nothing has been stated by the witnesses regarding presence of any form of light which can be presumed to mean that the torch was the only source of light. Similar would be the situation confronting P.W.6 and P.W.11 as they had also identified the accused by means of torchlight. Similar would be the situation confronting P.W.6 and P.W.11 as they had also identified the accused by means of torchlight. It would also seem that they had followed the accused from their house to the house of Kamdeo Prasad Verma and in the entire route, they had screamed but none of the people of the locality had arrived to save the deceased. Even P.W.2, in whose courtyard Jhagru Mahto was beaten to death, was not aware of the arrival of the accused persons in her courtyard and when P.W.6 and P.W.11 started screaming, she had opened the door and had seen Jhagru Mahto lying on the ground and the accused persons fleeing away. The evidence of the witnesses, therefore, creates a doubt over the identification of the appellants being the assailants. 12. The non-examination of the Investigating Officer seems to have caused prejudice to the defence as he could not be confronted with the evidence of P.W.8 and P.W.9 and from their evidence it appears that the first information of the incident was reported by them to the Police Station and the statement of P.W.8 was recorded. The prosecution apparently has suppressed such fardbeyan which makes the subsequent fardbeyan a highly suspicious document. 13. The circumstances noted above have not been appropriately considered by the learned trial court and consequently, we set aside the judgment and order of conviction and sentence dated 25-09-1997 (sentence passed on 26-09- 1997) passed by Sri Ghanshyam Prasad, learned Sessions Judge, Deoghar in Sessions Case No. 233/1995. 14. This appeal is allowed. 15. Since the appellants are on bail, they are discharged from the liability of their bail bonds. 16. Pending I.A.s, if any, stands closed. 17. We hereby take this opportunity to appreciate the assistance rendered by Mr. Ravi Prakash, learned amicus curiae and direct the Member Secretary, High Court Legal Services Committee to extend the stipulated fees to Mr. Ravi Prakash within a period of four weeks from the date of receipt/production of a copy of this order.