JUDGMENT : Pradeep Kumar Srivastava, J. 1. Affidavit filed by the State reveals that appellant No. 1 namely, Beni Singh and appellant no. 4 namely, Ram Nath Ram @ Ram Nath Rautiya have died during pendency of this appeal. 2. Therefore, the appeal, so far as appellant no. 1 namely, Beni Singh and appellant no. 4 namely, Ram Nath Ram @ Ram Nath Rautiya is concerned, stands abated. 3. Now, the appeal is heard with respect to appellant nos. 2, 3, 5 & 6 namely, Tejan Singh, Ganpati Bhagat @ Lerhe Bhagat, Budhan Ram @ Budhan Ram Rautiya and Dhanpat Bhagat @ Houla Bhagat. 4. The instant criminal appeal is preferred by the above- named appellants for setting aside the judgment of conviction and order of sentence dated 19.06.2002 / 20.06.2002 passed by learned Additional District & Sessions Judge, Fast Track Court, Gumla in Sessions Trial No. 255 of 1988, whereby and whereunder, the appellants have been held guilty for the offence punishable under Section 302 of the I.P.C. and sentenced to undergo rigorous imprisonment for life. Appellants have further been held guilty for the offence under Section 148 of the I.P.C. and sentenced to undergo R.I. for three years and appellant no. 2, Tejan Singh has also been held guilty for the offence under Section 324 of the I.P.C. and sentenced to undergo R.I. for three years. All the sentences were directed to run concurrently. 5. The factual matrix giving rise to this appeal is that the informant Jivnath Singh (P.W.-6) lodged the F.I.R. (Exhibit-7) at Chainpur Police Station stating inter alia that on 06.05.1988 (Friday), his son Baijnath Singh, aged about 25 years, went to Kashir Bazar and at around 6:00 P.M., informant’s son was returning to home and reached near the house of Budhan Ram Rautiya (appellant no.5). Meanwhile, hearing hulla, the informant along with his wife and other family members came out of the house and reached near the place of occurrence and saw that Beni Singh (appellant no. 1) (since deceased) with the help of axe and Tejan Singh (appellant no. 2) armed with tabela, Budhan Ram Rautiya (appellant no. 5), Ram Nath Ram Rautiya (appellant no.4) (since deceased), Lerhe Bhagat, Hauwa Bhagat armed with lathi were assaulting to informant’s son, Baijnath Singh. 1) (since deceased) with the help of axe and Tejan Singh (appellant no. 2) armed with tabela, Budhan Ram Rautiya (appellant no. 5), Ram Nath Ram Rautiya (appellant no.4) (since deceased), Lerhe Bhagat, Hauwa Bhagat armed with lathi were assaulting to informant’s son, Baijnath Singh. It has further been alleged that informant along with his family members tried to save their son, but Tejan Singh assaulted the informant’s son by tabela causing injury on his right eye and shoulder. It has further been alleged that due to indiscriminating assault given by axe, tabela and danda, the informant’s son died on the spot. The motive behind the occurrence is alleged that there was some money dispute regarding cutting and selling of Sakhuwa tree from Patkona Pahar in between his son and Beni Singh. Tejan Singh is the brother of Beni Singh. Other accused persons are friends and supporter of Beni Singh. 6. The above information was given by the informant at police station along with Village Choukidar and other villagers on 07.05.1988 at around 9 A.M. Accordingly, Chainpur P.S. Case No. 10/1988 was registered for the offences under Sections 147 , 148, 324, 302 of the I.P.C. 7. After conclusion of investigation, charge sheet was submitted against the aforesaid appellants. The case was committed to the court of Sessions, where S.T. No. 255/1988 was registered. The accused persons denied the charges leveled against them and claimed to be tried, therefore, trial proceeded. 8. In course of trial, altogether sixteen witnesses were examined by the prosecution. Apart from oral testimony of witnesses, following documentary evidence have been adduced by the prosecution:- Exhibit-1 : Carbon copy of inquest report. Exhibit-1/1 & 1/2 : Signature of witnesses on inquest report. Exhibit-2 : Signature of informant on the FIR. Exhibit-2/A & 2/B : Signature of witnesses on FIR. Exhibit-2/C : Signature of Officer-in-Charge on FIR. Exhibit-3 : Statement of Janak Ram Rautiya recorded under Section 164 Cr.P.C. Exhibit-3/a : Statement of Smt. Sumitra Devi recorded under Section 164 Cr.P.C. Exhibit-3/b : Statement of Sarita Devi recorded under Section 164 Cr.P.C. Exhibit-3/c : Statement of Sawmi Devi recorded under Section 164 Cr.P.C. Exhibit-4 : Seizure list. Exhibit-4/A, 4/B & 4/C : Signature of witnesses on seizure list. Exhibit-5 : Seizure list. Exhibit-6 : Post-mortem Report. Exhibit-7 : F.I.R. Exhibit-8 : Written requisition by police officer for medical examination of Jiwanath Singh. Exhibit-4/A, 4/B & 4/C : Signature of witnesses on seizure list. Exhibit-5 : Seizure list. Exhibit-6 : Post-mortem Report. Exhibit-7 : F.I.R. Exhibit-8 : Written requisition by police officer for medical examination of Jiwanath Singh. Exhibit-9 : Injury report of injured Jiwanath Singh. Exhibit-10 : Map of place of occurrence prepared by I.O. 9. On the other hand, the case of defence is denial from occurrence and false implication due to dispute or enmity between Beni Singh and deceased regarding cutting and selling of Sakhuwa tree as claimed by the prosecution. No oral or documentary evidence has been adduced by the defence. 10. The learned trial court, after evaluating and scrutinizing the evidence led by the prosecution recorded the finding of guilt of accused persons for the aforesaid offences and sentenced them as stated above. 11. We have heard the arguments of learned counsel for the appellant nos. 2, 3, 5 & 6 as well as learned Spl.P.P. for the State and perused the record of the case along with impugned judgment of conviction and order of sentence in the light of submissions of respective parties. 12. Learned counsel appearing for the appellants has strenuously argued that the impugned judgment of conviction and order of sentence of the appellants is erroneous and beyond the weight of evidence available on record and non-consideration of vital aspects of the case. Learned counsel for the appellants has pointed out following grounds of objection against the impugned judgment:- (i) All the witnesses are interested and close relative of the deceased and none of them have seen the occurrence, but projected themselves to be eye witness of the occurrence. (ii) The prosecution has miserably failed to prove the genesis and manner and place of occurrence, which was never appeared in front of house of appellant – Budhan Ram Rautiya. (iii) The informant himself admitted that at the time of occurrence, except the deceased, all the family members were in the house, but the mother, brother and sisters of the deceased have improved their testimony by saying that they were also returning along with deceased and the occurrence took place in their presence on 06.05.1988 at about 6 P.M., but no information was given to Police or any of the Villagers about the said occurrence and the FIR was lodged in the next day morning i.e. on 07.05.1988 at about 9 A.M. without any explanation. (iv) It is admitted that the deceased had gone to market along with his friends and the name of three friends have been disclosed by the witnesses, who have not been examined by the prosecution. (v) The evidence of prosecution witnesses also does not find corroboration from post mortem report of the deceased, wherein all the injuries are found to be caused by sharp cutting weapon like tangi, none of the injuries have been opined to be caused by tabela or any hard and blunt substance like lathi. (vi) The prosecution has also failed to prove the motive behind the occurrence as alleged in the FIR. (vii) There is no iota of evidence at all that all the appellants have conjointly perpetrated in the alleged occurrence with any common intention or at any point of time, they have formed any unlawful assembly or there was any common object in prosecution of which, the occurrence was caused by the members of unlawful assembly. (viii) The trial court has also not framed charge for the offence under Section 302 of the I.P.C. against all the appellants with aid of Section 34 or Section 149 of the I.P.C. There is no whisper about presence of any of the common object of the appellants as defined under Section 141 of the I.P.C. (ix) In alternative, it is argued that all the injuries caused to the deceased are found to be incised wound, but there is no whisper that different weapons were used in causing such injuries. There are direct evidence for causing injuries by axe against the Beni Singh and the informant has sustained simple injuries by tabela caused by appellant Tejan Singh and who has been separately punished for offence under Section 324 of the I.P.C. and actually undergone three years imprisonment during trial of the case. Since, there was no injury caused by lathi to any of the injured, therefore, allegation against other appellants namely, Ganpati Bhagat @ Lerhe Bhagat, Ram Nath Ram @ Ram Nath Rautiya, Budhan Ram @ Budhan Ram Rautiya and Dhanpat Bhagat @ Houla Bhagar is palpably false and fabricated story. The prosecution has also failed to bring on record any motive behind the occurrence against other appellants. The prosecution has also failed to bring on record any motive behind the occurrence against other appellants. The main assailant Beni Singh has been died and Tejan Singh has undergone imprisonment of three years for the offence under Section 324 of the I.P.C., therefore, this appeal is fit to be allowed by setting aside the impugned judgment of conviction and order of sentence of the appellants. 13. Per contra, learned Spl.P.P. opposed the aforesaid contentions raised on behalf of the appellants and submits that the learned trial court has very wisely and in threadbare manner analyzed the evidence led by prosecution and arrived at right conclusion. There is no reason to disbelieve the testimony of witnesses examined in this case. The role played by the appellants has been proved by prosecution to the hilt. There is no illegality or infirmity in the impugned judgment, calling for any inference in this appeal, which is devoid of merit and fit to be dismissed. 14. The only point for consideration in this appeal as to whether the impugned judgment of conviction and order of sentence of appellants suffers from any error of law, calling for any interference by way of this appeal? 15. We have gone through the evidence adduced by the prosecution along with record of the case and the impugned judgment in the light of submission of the respective parties. 16. It appears that admittedly occurrence took place on 06.05.1988 at about 6 PM, but the FIR was lodged on 07.05.1988 at about 9 AM. It is admitted in FIR that at the time of occurrence, the informant along with his wife, daughter-in-law, daughter was present in the house and after hearing hulla came out from their house and proceeded near the house of Budhan Rautiya and saw that the accused persons were assaulting to his son Baijnath Singh by tangi, tabela and lathi, due to which, he died on the spot. 17. P.W.-1 : Smt. Shawani Devi is the wife of the informant-cum-mother of the deceased. According to her evidence, on the date of occurrence at about 7:00 PM, she had gone to Kashir market along with her son Baijnath Singh. She was returning from market along with her son, who was at some distance behind her. 17. P.W.-1 : Smt. Shawani Devi is the wife of the informant-cum-mother of the deceased. According to her evidence, on the date of occurrence at about 7:00 PM, she had gone to Kashir market along with her son Baijnath Singh. She was returning from market along with her son, who was at some distance behind her. She also saw Beni Singh, Tejan Singh, Ganpati Singh, Ram Nath Rautiya, Budhan Rautiya and Dhanpat Bhagat in the way to her home, who were at saying that they have to kill Baijnath Singh. Therefore, she returned to home and again along with her grandson, daughter-in-law and daughter went near Tirmarukh river and saw that her son was coming along with his friends and when they were about to reach their home, meanwhile, Ram Nath Singh and Budhan Singh stopped them and attempted to assault by danda, which was warded off by her, then the accused persons started assaulted her son Baijnath Singh. She has specifically stated that Beni Singh has axe, Tejan Singh with tabela and other accused persons armed with danda. The occurrence took place in front of house of Budhan Ram. She has denied any motive behind the occurrence as alleged in the FIR. In her cross-examination, she has also claimed that Beni Singh gave first assault by axe to her son and other accused persons were assaulting by lathi and tabela. In her cross-examination, she also states that when her son fell down due to sustaining injuries, she did not go there to see the injuries. 18. P.W.-2 : Sewak Baiga is a hearsay witness, who heard hulla and went towards the house of Budhan and saw the dead body of Baijnath Singh. He also states that father and mother of the deceased were present there, but none of them disclosed about the assailant of the deceased. 19. P.W.-3 : Smt. Sumitra Devi is the sister of the deceased. She has corroborated the testimony of her mother (P.W.-1) stating that her mother returned from the market and saw that accused persons were desiring to kill Baijnath, then she along with her mother and other family members went at the place of occurrence and saw the accused persons were assaulting her brother, but she has not stated any specific overt act against any of the accused persons. 20. P.W.-4 : Sarita Devi is the wife of the deceased. 20. P.W.-4 : Sarita Devi is the wife of the deceased. She has given a different story stating that her mother-in-law returned from Kashir market and told that Budhan Ram is concealing himself to assault Baijnath Singh. She has also given a different story as an eye witness that when she along with her family members reached near the house of Budhan Ram, they saw that Budhram and Ram Nath on the point of danda have stopped her husband and also assaulted by danda. Her husband warded off the danda blow from his hand, then Beni Singh, Tejan Singh, Haba Oraon and Lehre Oraon also arrived there. She further states that Beni started assaulting by tangi and Tejan by tabela to her husband, Ledhe, Budhan, Ram Nath and Haba were assaulting by danda. Her husband fell on the earth and died on the spot. In her cross-examination, she has further given a new fact that her mother-in-law and husband had also gone to market. When her mother-in-law returned, then she started cooking. 21. P.W.-5 : Musa Lakra is a witness of inquest report and proved his signature on inquest report, marked as Exhibit-1/1 and signature of another witness Ishwar Sahay Kujur as Exhibit-1/2. 22. P.W.-6 : Jiva Nath Singh is the informant. According to his evidence, his wife and son had gone to market. He along with his daughter-in-law and elder daughter were present in the house. His wife returned from market and told that accused persons are planning to kill their son, then he along with other family members went towards the house of Budhram Oraon, which is situated adjacent to his house. According to his evidence, Beni Singh gave axe blow to his son Baijnath and Tejan Singh assaulted by tabela. When he wanted to save his son, Tejan Singh also assaulted him by tabela causing injuries near ear and other accused persons assaulted by lathi. His son died on the spot. 23. P.W.-7 : Javir Oraon is the formal witness, who has proved the statements of witnesses Janak Ram Rawatiya, Smt. Sumitra Devi and Smt. Sarita Devi and Shawani Devi, which is marked as Exhibit-3 to 3/C. He appears to be not a competent witness to prove the aforesaid statements. 24. His son died on the spot. 23. P.W.-7 : Javir Oraon is the formal witness, who has proved the statements of witnesses Janak Ram Rawatiya, Smt. Sumitra Devi and Smt. Sarita Devi and Shawani Devi, which is marked as Exhibit-3 to 3/C. He appears to be not a competent witness to prove the aforesaid statements. 24. P.W.-8 : Onkar Nath Sinha , Judicial Magistrate, 1st Class, Deoghar, who recorded the statement under Section 164 of the Cr.P.C. and has proved Exhibit-3 to 3/C, earlier marked as Exhibits. 25. P.W.-9 : Arawat Singh is a witness of seizure list Exhibit-4 & 4/a. According to his evidence, the police has seized the slipper in front of house of Jhagru Rautiya and blood-stained earth and seizure list was prepared. 26. P.W.-10 : Mohan Singh is another witness of seizure list, who has proved his signature as Exhibit-4/b. 27. P.W.-11 : Nathanial Kuzur is another witness of seizure list, but he has denied any seizure in his presence and only proved his signature on seizure list, marked as Exhibit-5. 28. P.W.-12 : Ishwar Sahani Kuzur has been tendered for prosecution and not supported the prosecution. 29. P.W.-13 : Balkumar Ram has stated that on the date of occurrence at about 8:00 PM, he was taking dinner, meanwhile, he heard hulla in the village and the villagers called him, then he went near the house of Jhagru Rautiya, where he saw the dead body of Baijnath Singh. He has further stated that Jiv Nath Singh (informant) told him that Tejan Singh, Beni Singh, Budhan Khetia, Ram Khetia, Ledhe Bhagat and Haba Bhagat have assaulted to Baijnath Singh. He has proved his signature on the FIR marked as Exhibit-2/a. Admittedly, he was not the eye witness of the occurrence. 30. P.W.-14 : Chotan Munda has also proved his signature on the FIR as Exhibit-2/b and not an eye-witness of the occurrence, rather declared hostile by the prosecution. 31. P.W.-15 Dr. Raj Kumar Beck has conducted autopsy on the dead body of Baijnath Singh, aged about 25 years on 08.05.1988 at about 11:00 AM and then found following:- (i) Incised wound 2.1/2” x ¾” x ½” on the occipital region. (ii) Incised wound 3” x 1” x 1.1/4” on the right upper side of neck with cutting carpeted vessels artery and vein. (iii) Incised wound 2” x ½” x ¾” on left upper side of the neck. (ii) Incised wound 3” x 1” x 1.1/4” on the right upper side of neck with cutting carpeted vessels artery and vein. (iii) Incised wound 2” x ½” x ¾” on left upper side of the neck. (iv) Incised wound 1.1/2” x ½” x ½” on the chin. (v) Incised wound 3” x ½” x ¾” above the left scapular side. All the above injuries were ante mortem in nature and injury no. (ii) was grievous and the rest were simple in nature. All the injuries were caused by same sharp cutting instrument e.g. Tangi and Tabela. Injury No. (ii) was sufficient to cause death in ordinary course of nature; cause of death shock and hemorrhage as a result of above injuries. He has proved the post mortem report as Exhibit-6. He has specifically admitted in his cross-examination that above injuries cannot be caused by lathi. He has also failed to state as to above injuries were from same weapon or by different weapon. 32. P.W.-16 : S.I. Ram Pukar Singh is the Investigating Officer of the case. He has proved the FIR as Exhibit-7. After registration of FIR, he undertook the charge of investigation of the case. He recorded re-statement of the informant and interrogated other witnesses and also obtained injury report and post-mortem report of the deceased. He went to the place of occurrence and prepared inquest report in presence of witnesses and also seized slipper, blood-stained earth in presence of witnesses from the place of occurrence, which is marked as Exhibit-4. He also prepared sketch map of place of occurrence, marked as Exhibit-10. He also obtained post mortem report of the deceased. According to him, place of occurrence is situated in front of house of accused Budhan Ram and Ram Nath Rautiya. In his cross-examination, he has admitted that witness Shawani Devi (P.W.-1), mother of the deceased has stated before him that on 06.05.1988 (Friday) at about 7 PM, she was in her house. Similarly, informant Jiva Nath Singh has stated before him that his son had gone to Koshir Bazar on Friday and at about 7 PM, he was returning to home then he heard alarm of his son and he along with his wife, daughter-in-law and daughter went there. It is further stated that at the time of occurrence, informant along with his wife, daughter-in-law and daughter were present in the house. It is further stated that at the time of occurrence, informant along with his wife, daughter-in-law and daughter were present in the house. The seized materials have not been produced and marked as material exhibits. 33. From the aforesaid discussions of ocular testimony of the witnesses, it is apparent that out of total 16 witnesses examined in this case by the prosecution only P.W.-1, Smt. Shawani Devi, P.W.-3, Smt. Sumitra Devi, P.W.-4, Sarita Devi and P.W.-6 Jiva Nath Singh have claimed to be eye-witness of occurrence and all other witnesses are either witnesses of inquest, seizure list, hearsay and Investigating Officer and Doctor. It is also quite obvious that the aforesaid eye witnesses are close relatives of the deceased. There is clear cut version in the FIR, which has been lodged by none else, but father of the deceased, that at the time of occurrence, informant along with his wife, daughter and daughter-in-law were present at their home at about 6 PM. They heard hulla from their house raised by son of informant coming from the house of Budhan Ram. They rushed there and saw that Beni Singh was assaulting to his son by axe, Tejan Singh by tabela and other accused persons were assaulting by lathi. They attempted to save their son, but Tejan Singh also assaulted by tabela to informant, causing injuries on his right eye and shoulder. The son of the informant sustained severe injuries and died on the spot. The motive for crime is attributed against Beni Singh regarding money dispute in respect of cutting and selling of Sakhuwa tree from Patkona Pahar. The FIR was lodged after lapse of 15 hours from the occurrence. Although, the police station is alleged to be situated at a distance of 35 km., but there is no iota of evidence from any corner as to from the time of said occurrence, where dead body of deceased was lying and who was taking care of the dead body. 34. The version contained in the FIR as regards manner of occurrence, place of occurrence and attributability of assault against the appellants suffers from material contradictions in the evidence of ocular testimony of witnesses. 34. The version contained in the FIR as regards manner of occurrence, place of occurrence and attributability of assault against the appellants suffers from material contradictions in the evidence of ocular testimony of witnesses. The claim of informant that he has also suffered injuries by tabela caused by Tejan Singh, but no injury report has been proved by Medical Officer, rather Exhibit-8 & 9 is marked on evidence of I.O. The post mortem report of the deceased (Exhibit-6) also shows that all the injuries are incised wounds caused by sharp cutting weapon and none of the injuries have been caused by lathi as alleged by the witnesses. There is also no evidence at all as to all injuries sustained by deceased have been caused by same weapon or by different weapon. P.W.-1 has stated that she had also gone to market with her son and returned earlier to him where in the way she saw accused persons were talking to eliminate her son, but she without making any response straight forward returned to her home and thereafter went near Trimarukh river along with her daughter-in-law, grandson and daughter. Therefore, she has given serious jolt to the evidence of her husband (P.W.-6) , who has also improved the version contained in the FIR and stated that his wife returned from the market and told that the accused persons are intending to kill his son, then he went to the house of Budhan Ram where incident was going on. He also sustained injuries caused by tabela by Tejan Singh while rescuing his son. P.W.-3 Sumitra Devi, sister of the deceased and P.W.-4 Sarita Devi, wife of the deceased have also given different story regarding manner of occurrence. It further transpires that except in the FIR, no motive of occurrence has been assigned against appellants. 35. We further find that the seized materials of this case e.g. slipper, blood-stained earth were not sent for chemical examination to FSL to corroborate the prosecution story regarding origin of blood stains either blood of deceased or the accused persons. The same has not been produced as material exhibits. 36. We further find that the learned trial court has failed to consider as regard to any unlawful assembly constituted by the appellants and what was its object. There is also no whisper that all the appellants have acted in a concerted manner. The same has not been produced as material exhibits. 36. We further find that the learned trial court has failed to consider as regard to any unlawful assembly constituted by the appellants and what was its object. There is also no whisper that all the appellants have acted in a concerted manner. The learned trial court has also failed to consider that all the injuries caused by sharp cutting weapon. The ocular testimony of witnesses appears to be inherently unreliable in view of self-contradictory statements given by them as regards manner of assault and the place of occurrence. Under such circumstances, the testimony of relative / partisan witnesses requires to be corroborated from some independent source, which is absolutely lacking in this case. The cumulative effect of circumstances proved by the prosecution clearly leads to conclusion that none of the witnesses have seen the occurrence on the fateful date, rather after murder of the deceased, they have come to know about the occurrence on the next day morning and went to police station and lodged the FIR at 9:00 AM. The appellants have been implicated in this case only on the basis of suspension which never culminated into legal prove of the occurrence. 37. In view of aforesaid discussion and reasons, we are of the firm view that the learned trial court has failed to properly appreciate the material aspects of the case and wrongly placed reliance upon the testimony of the alleged eye witnesses, who happens to be close relative of the deceased. Although there is no legal impediment to convict the accused persons on the basis of testimony of related witnesses, but at the same time, their testimony requires to be considered very cautiously and sparingly. Any reasonable doubt appearing in the evidence of witnesses to disbelieve their testimony is sufficient to discard their evidence. In the instant case, the testimony of eye witnesses suffers from inherent improbabilities, material contradictions and improvements as regards the very genesis, manner and place of occurrence, which does not find corroboration from any independent source. Therefore, we are constrained to hold that the prosecution has miserably failed to substantiate the charges leveled against the appellants and the learned trial court has convicted the appellants on the basis of improper evaluation of evidence. Accordingly, we set aside the impugned judgment of conviction and sentence of the appellants. 38. Therefore, we are constrained to hold that the prosecution has miserably failed to substantiate the charges leveled against the appellants and the learned trial court has convicted the appellants on the basis of improper evaluation of evidence. Accordingly, we set aside the impugned judgment of conviction and sentence of the appellants. 38. This appeal is allowed and the appellants are acquitted from the charges leveled against them. Appellants are directed to be set at liberty forthwith. 39. Appellants are on bail, as such, they are discharged from the liability of bail bonds and sureties are also discharged. 40. Pending I.A., if any, stand disposed of. 41. Let a copy of this judgment along with trial court record be sent back to the court concerned for information and needful.