JUDGMENT
Manohar Lal Visa, J.
1. All these four appeals arise out of same judgment so they have been heard together and are being disposed of by this common order.
2. All the five appellants have been convicted and sentenced to undergo imprisonment for life under Section 302 read with Section 34 of Indian Penal Code (in short ‘IPC’) and to undergo rigorous imprisonment for two years under Section 201, IPC. Both the sentences have been ordered to run concurrently.
3. The case of the prosecution, as disclosed in the written report (Exhibit-4) of informant Dinesh Jha (P.W. 8) addressed to Officer-in-Charge, Mithanpura police station within the district of Muzaffarpur, is that informant had litigation with one Raj Kishore Singh in respect of a residential house in which he, with his family members, was living since 1972. Efforts for evicting him from the house were made and in those efforts, occurrences of assault, snatching, etc. were got committed in his house and some antisocial elements by Raj Kishore Singh were got entered forcibly in a portion of the house and those antisocial elements were constantly giving various types of threatenings to informant. On 1.7.1984 at about 8 p.m., Rajiv Kumar @ Bablu, the brother of informant, went to betel shop of appellant Mehesh Kumar (appellant of Criminal Appeal No. 447 of 1987) situate near his house for eating betel and also for bringing betel for the informant. After some time, Meena Devi (P.W. 5), the maidservant of the mohalla of informant, alongwith her mother Raj Kumari Devi (P.W. 2) and Chattu Mahto (P.W. 1) came to the house of informant and informed him that appellant Mahesh Kumar and Suresh Kumar son of Sukhdeo Prasad (appellants of Criminal Appeal No. 447 of 1987) alongwith two to three persons, after assaulting Rajiv Kumar with stick and slaps, forcibly took him away on a motorcycle. The informant further stated that two days prior to that, his brother Rajiv Kumar had some dispute with Janardan Singh and Raj Kumar Singh but the matter was pacified by timely arrival of informant and Janardan Singh and Raj Kumar Singh had given threatening that they would lift Rajiv Kumar within two to three days. The informant raised suspicion that Janardan Singh and Raj Kumar Singh got his brother Rajiv Kumar disappeared through appellants Mahesh Kumar, Suresh Kumar, son of Sukhdeo Prasad and others with an intention to kill him because both these appellants were on visiting terms with Janardan Singh and Raj Kumar Singh and on the same day at about 7 p.m. also both the appellants had come to the residence of Janardan Singh and Raj Kumar Singh.
4. On the basis of written report of informant, First Information Report (Exhibit-6) under Section 364, IPC was drawn against appellants Mehesh Kumar and Suresh Kumar, son of Sukhdeo Prasad and three unknown persons. The investigation of the case was taken up by Assistant Sub-Inspector, Sudhanshu Kumar Mitra (P.W. 9) who, on the same night, went to the house of appellant Suresh Kumar, son of Chaturbhuj Prasad (appellant of Criminal Appeal No. 537 of 1987) and arrested him and, thereafter, the Investigating Officer went to BharatSaw Mill and arrested appellant Maya Shankar Prasad (appellant of Criminal Appeal No. 421 of 1987) and also seized a blue coloured motorcycle bearing No. BRQ 60115 kept in the same mill on the basis of disclosure made by appellant Suresh Prasad. The Investigating Officer, thereafter, proceeded to village-Madhopur with appellant Maya Shanker Prasad and raided the house of appellant Dayanand Prasad (appellant of Criminal Appeal No. 543 of 1987) and arrested him. On 2.7.1984, Ratneshwar Prasad (P.W. 4), the then officer-in-charge of Maniyari Police Station at about 12 O’clock in the noon, on receipt of information, went to Bishunpur Gidha Chaur where he found a dead-body and he then, after preparing an inquest report (Exhibit-2) of the dead-body, sent it for postmortem examination. This dead-body was identified by informant and his father as the dead-body of Rajiv Kumar, the brother of informant. Sections 302/201, IPC were added to First Information Report and the police, after investigation, submitted charge-sheet under Sections 364, 302, 201 and 120-B, IPC, against all the five appellants and one Janardan Singh, Cognizance was taken by Ghief Judicial Magistrate on 16.10.1984 and the case was transferred to the Court of Shri Amrendra Kumar Singh, Judicial Magistrate, 1st Class, Muzaffarpur who committed the case to the Court of Sessions where charges under Sections 364, 302/34 and 201, IPC were framed against all the five appellants and Janardan Singh. A criminal miscellaneous petition was filed by co-accused Janardan Singh before this Court against the order of framing charge against him and further proceeding against him was stayed and, thereafter, the case of appellants, after its separation from the case of co-accused Janardan Singh, proceeded further for trial. The case of appellants before the Court below was complete denial of charges against them and their false implication. The specific case of defence of appellant Maya Shanker was that he had been falsely implicated in the case at the instance of appellant Suresh Kumar, son of Chaturbhuj Prasad and case of appellants, Mahesh Kumar and Suresh Kumar, son of Sukheo Prasad was that they had been falsely implicated on account of their enmity with Chattu Mahto (P.W. 1). Seven witnesses were examined on behalf of the appellants before the Court below.
5. After trial, the Court below found the appellants guilty under Section 302 read with Section 34, IPC and Section 201, IPC and, accordingly, they have been convicted and sentenced, as stated above. The Court below also found that appellants had abducted the deceased with an intention to commit his murder but after observing that since the appellants had already been convicted under Section 302 read with Section 34, IPC for committing murder of deceased, acquitted the appellants for the charge under Section 364, IPC.
6. In order to prove its case, prosecution examined nine witnesses. Dinesh Jha (P.W. 8) is the informant. Dr. Manoranjan Kumar Srivastava (P.W. 3) is the doctor who held post-mortem examination on the dead-body of Rajiv Kumar, the deceased. Sudhanshu Kumar Mitra (P.W. 9) is the Investigating Officer. Ratneshwar Prasad (P.W. 4) is the police officer posted as Officer-in-Charge of Maniyari police station when he received information of the dead-body lying in Bishunpur Gidha Chaur. Mina Devi (P.W. 5) is the only eye-witness who is said to have seen the appellants assaulting the deceased and, thereafter, abducting him by forcibly taking him on a motorcycle. Chattu Mahto (P.W. 1) and Raj Kumari Devi (P.W. 2) are hearsay witnesses who had heard about the assault on deceased and his abduction by the appellants from Mina Devi (P.W. 5). Binod Mahto (P.W. 6), on the day of occurrence at about 5.30 p.m., had seen all the appellants at the shop of appellant Mahesh Kumar and he had also seen motorcycle of appellant Maya Shanker there. Neena Jha (P.W. 7), the sister of informant is also a hearsay witness who had heard about the assault on deceased and his kidnapping by some persons from Mina Devi (P.W. 5) and she is also a witness when two days prior to occurrence, one Janardan Singh had given threatening that he would get the deceased lifted within two or three days and on the day of occurrence had seen appellant Mahesh Kumar talking with Janardan Singh.
7. Dr. Manoranjan Kumar Srivastava (P.W. 3), in his evidence, has said that on 30.7.1984 at 11 a.m., he held post-mortem examination on the dead-body of Rajiv Kumar @ Bablu and found the following ante-mortem injuries:
(i) Bruise 2″ x 1″ with echymosis on the front of neck,
(ii) Bruise 2″ x 1/4″ with echymosis on the right side of neck,
(iii) Bruise 1″ x 1/4″ with echymosis on the left side of neck,
(iv) Bruise 1/2″ x 1/2″ with echymosis on neck just near injury No. (iii).
According to him, the body was swollen and blisters were found on so many parts of the body and on opening the neck, thyroid bone and thyroid cartilage were found ruptured and trachea was filled with blood clot and was highly congested. In his opinion, cause of death was due to asphyxia caused by pressure on neck by hard substance and time since death was within 96 hours and injuries were sufficient in ordinary course of nature to cause death. He has proved his post-mortem examination report, which is marked Exhibit-1.
8. The Court below has observed that in post-mortem examination report (Exhibit-1), date of holding post-mortem examination is mentioned as 3.7.1984 and due to oversight date of holding post-mortem examination has been mentioned as 30.7.1984 in the deposition of this witness. The evidence of this witness shows that death of deceased was homicidal.
9. Dinesh Jha (P.W. 8), the informant has said that on 1.7.1984 at about 8 p.m., P.Ws. 1, 2 and 5 came to his house and told him that appellants Mahesh and Suresh alongwith two to four others, after assaulting his younger brother Rajiv @ Bablu, had taken him away on a motorcycle. They also informed him that those persons, after going from their houses to the betel shop of appellant Mahesh, assaulted the deceased and, thereafter, took him away on a motorcycle and they further told that among the companions of appellants, Mahesh and Suresh, one was resident of Mithanpura and they can identify him by seeing him again but they did not know his name. He has further said that thereafter he, alongwith his mother and P.W. 5, went to police station where he submitted his written report. He has proved his written report which is marked Exhibit-4. According to him, the police took P.W. 5, to place of occurrence keeping him at police station. Chattu Mahto (P.W. 1) has said that on the day of occurrence at about 8 p.m., he was coming to his house from Goshala Road and in the way, he found six persons taking away Bablu towards east out of whom he identified appellants Suresh and Mahesh. He has further said that when he came to his house, his niece Mina Devi (P.W. 5) went to ease out of her house but she came back immediately thereafter and told his sister Raj Kumari Devi that appellant Mahesh and others, after assaulting the deceased, took him away on a motorcycle and, thereafter, he, alongwith his sister and Meena Devi went to the house of informant and told him all these facts, Raj Kumari Devi (P.W. 2) has said that on the day of occurrence at about 8 p.m., when she was in her house which is situate by the side of the road, she saw deceased going alongwith appellants Mahesh, Sursh and two to four other persons and sometimes thereafter, her daughter Mina Devi (P.W. 5) went to ease herself and when she returned, she informed her that she had seen five to six persons assaulting the deceased and taking him away on motorcycle and she also told her that among those persons, she identified Mahesh and Suresh and, thereafter, she alongwith her daughter Mina Devi and her brother, went to the house of informant to give this information and, thereafter, informant, alongwith his mother and Mina Devi went to police station. Binod Mahto (P.W. 6) has said that he had seen all the five appellants alongwith one Janardan Singh assembled at the betel shop of appellant Mahesh and he had also seen a blue coloured motorcycle belonging to appellant Maya Shanker there. Neena Jha (P.W. 7), the sister of informant, has said that on the day of occurrence, Mina Devi (P.W. 5) alongwith her mother and a male came to her house and told her mother and brother that some persons, after assaulting the deceased, had taken him away on a motorcycle. According to her, Mina Devi told names of appellants but she does not remember those names. She also added that two days prior to it, some altercation had taken place between deceased and one Janardan Singh and on arrival of informant, matter pacified but, thereafter, on the next day, Janardan Singh had given threatening that he would lift the deceased within two to four days and on the same day in the evening also same threatening was given to deceased by Janardan Singh and on the day of occurrence at about 7 p.m., she saw Janardan Singh talking with appellant Mahesh. In Para-7, she has clearly stated that when Mina Devi (P.W. 5), alongwith her mother, had come to her house to inform about the abduction of deceased, she was not there as she was inside her house.
10. Now adverting to the evidence of Mina Dsvi (P.W. 5), the only eye-witness of this case, I find that she, in her evidence, has said that on the day of occurrence at about 8 p.m., she was sitting outside her house alongwith her mother when she saw deceased going alongwith appellants Mahesh and Sursh and one another, whose name she did know but who was the resident of Mithanpura mohalia, Alongwith them, appellants Maya Shanker and Daya Shanker were also there but at the time of occurrence, she was not knowing their names but was knowing them by their faces because they used to come to the betel shop situate near her house. According to her, when her uncle Chattu Mahto (P.W. 1) came to her house, she went to ease herself in an open field situate towards west of her house and there she heard ‘hulla’ coming from northern side and when she stood up, she saw one fat person assaulting the deceased with a stick and all the five appellants were also assaulting the deceased and after assault, appellants Maya Shanker, Daya Shanker and Suresh took away the deceased on a motorcycle and appellant Maya Shanker was driving that motorcycle. In cross-examination, she has said that it was appellant Suresh, son of Chaturbhuj Prasad who, alongwith Maya Shanker and Daya Shanker, had gone with deceased on a motorcycle. She has also stated that thereafter, she came to her house and narrated the incident to her mother and her uncle Chattu Mahto (P. W. 1) and, thereafter, they all went to the house of informant and told him about the incident and, thereafter, she alongwith the informant and his mother went to police station. According to her, from police station, police took her to the house of Chaturbhuj Prasad where Suresh, son of Chaturbhuj was arrested and was identified by her and, thereafter, she returned to her house and on the next day early in the morning at about 4 a.m., she met the police near that shop of appellant Mahesh and the place of occurrence where she saw appellants Daya Shanker and Maya Shanker under the custody of police and identified them as among the persons who had taken part in commission of the offence. In Para-8 of her evidence, she said that although at the time of occurrence, it was a dark night but a lamp was lighting on a pole.
11. From the evidence adduced on behalf of the prosecution, I find that except Mina Devi (P.W. 5), there is no eye-witness on the point of assault on deceased by appellants and also on the point of abduction of deceased by appellants. P. Ws. 1 and 2, who are maternal uncle and mother of P.W. 5 respectively, are hearsay witnesses and they heard about the occurrence from P.W. 5. There is no eye-witness on the point of murder of deceased. The Court below has also observed that there is no direct evidence on the point of murder but after relying upon the evidence of P.W. 5, the Court below came to a conclusion that prosecution has proved beyond all reasonable doubts that the appellants abducted the deceased with an intention to commit his murder and thereafter, adding some circumstances, such as the deceased was not seen alive and his dead-body was recovered after his abduction, to the story of abduction of deceased further came to the conclusion that there is strong circumstantial evidence to prove that appellants committed murder of deceased after abducting him and threw his dead-body in a ‘Chaur’. In view of this observation of Court below, the evidence of P.W. 5, who is the solitary witness on the point of abduction of deceased, has to be scrutinized in order to see that how far her evidence proves that appellants abducted the deceased with an intention to commit his murder or to put him in danger of being murdered.
12. According to P.W. 5, she first saw deceased crossing the road in front of her house alongwith appellant Mahesh and Suresh, sons of Sukhdeo Prasad alongwith one another whose name was not known to her but she was identiying him by face because he was resident of Bishunpura mohalla and appellants Daya Shanker and Maya Shanker were also with them although at that time, she did not know their names and but she was knowing them also by their faces because they used to come to a tea stall near her house. Thereafter, when her maternal uncle came to house, she went in an open field situate towards west of her house to ease and there she heard ‘hulla’ coming from west side and then she stood up and saw that a fat man, with stick, was assaulting the deceased. On the day of her examination, she was questioned by appellants to state whether the man, who was seen by her assaulting the deceased with stick, was present in dock and she answered in negative although on that day, all five appellants were present which is apparent from the order-sheet of the Court below. She has further said that after assaulting the deceased, appellants Daya Shanker, Maya Shanker and Suresh took the deceased on a motorcycle. Her evidence shows that she identified Suresh who accompanied appellants Maya Shanker and Daya Shanker on motorcycle with deceased but the Court below has not given the parentage of this Suresh who was identified by her but in cross-examination, she has said that this Suresh was brother of appellant Mahesh and not son of Sukhdeo Prasad. She has further stated that she came to her house and narrated the incident to her maternal uncle and her mother and, thereafter, she went to the house of informant and told him about the occurrence and, thereafter, alongwith the informant and his mother, went to police station where First Information Report was lodged by informant. From police station she, alongwith police, went to the house of Chaturbhuj Prasad where his son, who is appellant Suresh, was arrested and she identified him as one of the assailants and, thereafter, she returned to her house. Again early in the morning at about 4 a.m., she met the police at the place of occurrence, when she saw appellants Daya Shanker and Maya Shanker in the custody of police and then she identified these two appellants also before police. She has admitted that at the time of occurrence, she was working as maid servant in the house of informant. In Para-24 of her cross-examination, she has stated that before naming the appellants Daya Shanker and Maya Shanker in this Court, she had stated their names before police when she had gone to police station but immediately contradicting this statement, she has added that police had told her the names of appellants Daya Shanker and Maya Shanker. In Para-25 of her cross-examination, she has said that appellants Mahesh Kumar, Daya Shanker and Maya Shanker were not on visiting terms to her and she had never met them before. The occurrence, as alleged by the prosecution, is said to have taken place after 8 p.m. and Meena Devi saw the occurrence from an open field situate west to her house where she had gone to ease out. She has further said that at the time of occurrence, it was dark night but there was street light. The Investigating Officer (P.W. 9), also in his evidence, has said that immediately after drawing First Information Report, he raided the house of appellant Suresh Kumar, son of Chaturbhuj Prasad at 10.30 p.m. and arrested him and at the time of raid there P.W. 5 was with him. He has further said that on 1.7.1984 at 9.30 p.m., P.W. 5 came to police station alongwith informant and he, after interrogating her, took her with him and straightwary went to the house of appellant Suresh Kumar, son of Chaturbhuj Prasad, His evidence shows that the informant did not accompany him to the house of appellant Suresh Kumar, son of Chaturbhuj Prasad. The prosecution has not explained that on the basis of what information, the Investigating Officer immediately after recording First Information Report taking P.W. 5 with him and leaving the informant at police station, straightway went to the house of Chaturbhuj Prasad where he arrested his son Suresh Kumar who was not named in First Information Report and was identified by P.W. 5 there. Even after remaining busy for late hours in night by going to police station and, thereafter, accompanying the Investigating Officer to the residence of Chaturbhuj Prasad, P.W. 5 was not satisfied and she again early in the morning, goes to place of occurrence where she met the Investigating Officer and saw appellants Daya Shanker and Maya Shanker and identified them. This evidence and conduct of P.W. 5 seem quite peculiar. This situation is exactly the same for whr1! there is a popular idiom in Urdu language “Muddai Sust, Gawah Chust” (complainant dormant, witness active). Besides this, P.W. 5 has said that on the next day early in the morning at 4 O’clock when she saw appellants Maya Shanker and Daya Shanker in the custody of police and when she identified them, her statement was recorded there whereas the Investigating Officer has said that he recorded the statement of P.W. 5 at police station when she had gone there alongwith informant on the night of 1.7.1984. Admittedly, P.W. 5 did not name appellants Suresh Prasad, son of Chaturbhuj Prasad, Maya Shanker and Daya Shanker when First Information Report was lodged and she identified these appellants when the Investigating of the case was already taken up but then such identification by her was not in any test identification parade but on the other hand, identification of Suresh Prasad, son of Chaturbhuj Prasad by this witness was made when she, alongwith the Investigating Officer, went to his house where he was arrested and appellants Maya Shanker and Daya Shanker were identified by this witness when she saw both of them in police custody and when the Investigating Officer himself disclosed their names to her. In such circumstances, the identification of appellants Suresh Kumar, son of Chaturbhuj Prasad, Maya Shanker and Daya Shanker by P.W. 5 in Court does not carry any evidenciary value. She has admitted that her maternal uncle Chattu Mahto (P.W. 1), prior to occurrence, had filed a criminal case of assault against appellant Mahesh Kumar. Admittedly, appellant Suresh Kumar is the brother of appellant Mahesh Kumar. On the aforesaid admission of P.W. 5 about a criminal case filed by her maternal uncle against appellant Mahesh Kumar, the Court below has not given any weightage on the ground that no question from Chattu Mahto (P.W. 1) about filing such case against appellant Mahesh Kumar was asked when he was examined as a witness in this case. True it is that the defence did not put any question in this regard to P.W. 1 but then when P.W. 5 herself admits filing of a criminal case by her maternai uncle against appellant Mahesh Kumar, I do not find any ground to completely ignore this admission particularly when her evidence has to be considered very cautiously because she is the only eye-witness on the point of abduction of deceased by appellants. Although the defence, by examining Abhay Kumar Srivastava (D. W. 7), a Switch Board Operator of Electricity Department, who has proved an entry in a register (Exhibit-E) has tried to prove that on 1.7.1984, there was no supply of electricity from 7.35 p.m. to 9 p.m. in Mithanpura mohalla and in this view of the matter, P.W. 5 could not have seen the assault on deceased and his abduction said to have taken place in the night but then this evidence has been discarded by the Court below on the ground of over writings and cuttings in the register containing Exhibit-E. Notwithstanding Exhibit-E, I find that the evidence of P.W. 5 that she saw the occurrence from the place, where she had gone to ease out, does rot inspire confidence because she, being a lady, must have selected a lonely and comparatively dark place for her easing out and it does not seem probable that from that place she had not only seen the occurrence but also observed minute details of occurrence such as one fat man assaulting the deceased with stick and appellant assaulting him with fists and slaps and inability of deceased to raise any alarm because of gagging of his mouth by appellants and also appellant Maya Shanker wearing a rosary of “Rudraksha” (seeds of tree Eleocarpus ganifrus) and having a beard. Among P.W. 5, her maternal uncle Chattu Mahto (P.W. 1) and her mother Raj Kumari Devi (P.W. 2), who had seen the deceased going with appellants, none has said that any of the appellants was seen carrying any lathi or any weapon. They have not said that deceased was forcibly taken by the appellants when they found the deceased going with appellants. The case of appellants is that the death of deceased had occurred much prior to the time of alleged occurrence which is supported by the evidence of Dr. Manoranjan Kumar Srivastava (P.W. 3) who held post-mortem examination on the dead-body of deceased on 3.7.1984 at 11 a.m. and found the time of death within 96 hours from the time of postmortem examination and who, in cross-examination, has said that time of death may vary from 72 to 96 hours from the time of post-mortem examination and this shows that the time of death of deceased was at about 11 a.m. on 30.6.1984 or before that and in this view of the matter, evidence of P. Ws. 1, 2 and 5 that they saw the appellants going with deceased on 1.7.1984 at 8 p.m. becomes doubtful. The Court below, after discussing the evidence of P.W. 3 on the point of appearance of blisters on the dead-body in details and also quoting references from Modi’s Textbook of Medical Jurisprudence and Toxicology, opined that from 22 to 35 hours or less than 22 hours of death, blisters appear on the dead-body and also considering the contention of State that there was nothing in inquest report that the decomposition of the body had started, observed that the contention of prosecution that the murder of deceased was committed in the night between 1st and 2nd July, 1984 cannot be disbelieved and accepted the argument advanced on behalf of the State that time of death, as given by P.W. 3 between 72 to 96 hours, cannot be accepted as true merely on account of the fact that he had found blisters on the dead-body. From perusal of evidence of P.W. 3, I find that he has nowhere stated that because he found blisters on the dead-body, therefore, he estimated the time of death between 72 to 96 hours from the time of post-mortem examination. On the contrary, in Para-8 of his cross-examination, he has clearly stated that blisters appear on a dead-body when it remains submerged in water for more than 36 hours. If he had based his opinion about the time of death only on appearance of blisters in that case, he would have stated that time of death was beyond 36 hours., Appellants in this case have been convicted under Section 302 read with Sections 34 and 201, IPC on the basis of circumstantial evidence because the Court below, after holding the allegation against the appellants of abducting the deceased on the night of 1.7.1984 true and considering the fact of recovery of dead-body of deceased thereafter, has drawn the inference that appellants committed the murder of deceased and threw his dead-body in a lonely place in a ditch. The evidence of doctor casts clouds of serious doubts on the case of prosecution because according to him, deceased was dead much prior to the time of his alleged abduction by appellants, as claimed by prosecution. As already discussed, on the point of abduction, there is evidence of P.W. 5 only and besides contradictions in her evidence, the evidence of doctor also makes her evidence quite doubtful that she had seen the deceased on the night of 1.7.1984.
13. The defence of appellants is that Javed Abbas @ Pappu, son of Ghulam Abbas (D.W. 2), after leaving his house, became traceless and subsequently was murdered and Ghulam Abbas had filed a written report at police station stating therein that when his son did not return to his house, he started searching for him and during that search, he came to know that his son had gone with deceased. Ghulam Abbas (D.W. 2) has proved this written report submitted to police which is marked Exhibit-‘B’. Prembir Jha (D.W. 1) has proved a station diary entry No. 179 dated 8.8.1983 (Exhibit-A) recorded on the basis of Exhibit-B. It has been argued on behalf of the appellants that Investigating Officer, in his evidence, has admitted that Deputy Superintendent of Police, by his supervision note, had directed him to collect evidence against deceased in respect of murder of son of Ghulam Abbas which shows that deceased himself was a criminal and he might have been murdered by someone not known to appellants much before the time of his alleged abduction. The further case of appellants is that appellant Maya Shanker Prasad had filed a miscellaneous petition before the Court of Sub-divisional Magistrate, Muzaffarpur against appellant Suresh Kumar, son of Chaturbhuj Prasad and Shri Arun Prakash Gupta (D.W. 4), an advocate, has proved the certified copy of this petition (Exhibit-D) and has said that he had drafted this petition which he got typed by his clerk and Sukeshwar Prasad (D.W. 3), record keeper of record room of Collectorate, Muzaffarpur, has proved destruction report (Exhibit-C) of the original petition. According to defence, name of appellant Maya Shanker Prasad was given to police by appellant Suresh Kumar because of enmity on account of aforesaid reason. The further case of defence is that P.W. 5 had filed an affidavit before the Court of IIIrd Additional Sessions Judge, Muzaffarpur stating therein that whatever she deposed in this case, was under the threatening on her life given by informant and his father through their musdemen and D.W. 6, an advocate has proved signatures of P.W. 5 (Exhibits-B/1 and B1/1) and his own signature (Exhibit-B1/2) on this affidavit.
14. If no adverse inference against the case of prosecution is drawn by the evidence of defence witnesses and documents brought on record by appellants, even then I find that the evidence of P.W. 5, who is the solitary eye-witness on the point of abduction of deceased by appellants, does not inspire confidence and is not free from doubts because of her enmity with appellant Mahesh Kumar, who is own brother of appellant Suresh Kumar, both sons of Sukhdeo Prasad and showing the appellants Maya Shanker, Daya Shanker and Suresh Prasad, son of Chaturbhuj Prasad to her after their arrest and disclosure of their names to her by police whereas she had not disclosed their names to informant who had lodged the First Information Report and also for other contradictions already discussed. I, therefore, find that prosecution has not been able to prove the charges against all appellants beyond all reasonable doubts.
15. In the result, all the four appeals are allowed. All the five appellants are acquitted of the charges framed against them by the Court below. The judgment and order of Court below, convicting and sentencing the appellants, is hereby set aside. The appellants, who are on bail, are discharged from the liabilities of their bail bonds.