JUDGMENT
R.N. Prasad, J.
1. The appellants have been convicted for the offence under Section 302/149 of the Indian Penal Code and sentenced to undergo imprisonment for life vide judgment and order dated 22.12.1986 passed by 2nd Addl. Sessions Judge, Bettina in S.T. No. 14/81.
2. The occurrence took place on 2.8.1980. One Briksh Yadav gave his fardbeyan on the same day at about 7.30 a.m. that at about 4 a.m. he had taken his cattle for grazing. When he reached near his Held he saw that his brother was being assaulted by several persons with fist, slaps and lathi. He identified only 14 persons out of them. He protested on which they tried to assault him and as such he left his she-bufallo and went to his house. He disclosed about the occurrence to the villagers: He again along with Hardeo Rant, Bindeshwari Raut, Bhukhal Raut came and found Jawahir Ahir, Bhuti Raut, Hari Narain Raut at the place of occurrence. They disclosed that accused Amichand Mahto, Nathu Mahto and Jaggarnath Mahto took Chandra Raut on his she-bufallo towards the Police Station. He went to the Police Station but he was informed that his brother Chandra Raut was in hospital. He went there and learnt that his brother Chandra Raut died 10-15 minutes before. The motive of the occurrence was that about one yeafago accused Suraj Mahto had taken Rs. 3,000 from deceased Chandra Raut for doing-contract Work with, a condition that he will give half of the profit but the neither gave half of the profit nor returned the principal amount. Due to the aforesaid reason there was Panchaiti and the appellants have committed the crime.
3. On the basis of fardbeyan; formal First Information Report was drawn, investigation was taken up, on completion of investigation charge-sheet was submitted, cognizance was taken and he case was committed to the Court of Session for trial. During pendency of trial Amir Chaud Mahto and Nathu Mahto died. The trial Court convicted the appellants for the offence as indicated above. However, during pendency of the appeal appellants Singal Thakur, Suraj Mahto and Deoki Mahto died and as such their appeal stood abated.
4. The defence of the appellants was that mi occurrence took place in the manner as alleged by the prosecution. They are innocent and have falsely been implicated in this case. Suraj Mahto did not take money from the deceased for contract work.
5. The prosecution in support of its case examined 8 witnesses, out of whom P.W. 5 is hear-say witness, P.W. 7 is the Investigating Officer and P.W. 8 is Doctor who held postmortem over the dead body. P.Ws. 1. 2, 3 & 4 claimed to have seen the occurrence. P.W. 6 is the informant and has also claimed to be eye-witness to the occurrence.
6. The occurrence is alleged to have taken place at about 4 a.m. P.W. 4 stated in his evidence that it was dark at the relevant time. All the eye-witnesses stated in their evidence that after assault Chandra Raut was taken to the Police Station on the she-bufallo of the informant. The informant went there but he did not find Chandra Raut at the Police Station rather he learnt that his brother was in the hospital. He went to the hospital where the learnt that his brother died 10-15 minutes ago. The Investigating Officer P.W. 7 did not say that Chandra Raut was brought to the Police Station. There is no evidence on the record except as stated above that the accused persons themselves took Chandra Raut to the Police Station. The conduct of a person prior to and after the occurrence is relevant. The evidence of the prosecution witnesses that the appellants themselves took Chandra Raut on the she-bufallo of the informant to the Police Station creates doubt about the prosecution case itself.
7. P.W. 6 is the informant. He claimed to have seen the assault by the appellants to his brother Chandra Raut. He protested upon which appellants tried to assault him and as such he ran away to his village and disclosed about the occurrence to the villagers. When he again came to the place of occurrence he found Jawahar Yadav, P.W. 1, Bindeshwar Yadav, P.W. 5, Hari Narayan Yadav, P.W. 4, Iriderdeo Yadav, P.W. 2 at the place of occurrence. P.W. 5 is brother of the informant. He does not claim that he had seen the assault rather he is a hear-say witness. In cross-examination the witness stated that the place of occurrence is field of Chandra Raut, the deceased. He also stated that when he returned to his village P.Ws. also ran away to the village. The witness present there did not come to the Police Station nor raised any alarm. The witness, however, denied that there was any proceeding under Section 107 of the Code of Criminal Procedure against them. However, it appears that evidence of the witness is not consistent rather it is contradictory to the earliest information i.e. First Information Report.
8. P.W. 1 claimed to have seen 14-15 persons assaulting the deceased with fist and slaps, out of whom he identified the appellants. The witness stated that place of occurrence is Nala i.e. different from the place of occurrence given by P.W. 7. The witness also stated different motive about the occurrence. He stated that appellant Singal Thakur and Jaggarnath Mahto were bad elements. The deceased used to protest and as such he was killed whereas in the First Information Report motive has been given as not returning the money given by the deceased to Suraj Mahto. The witness stated that deceased was made accused in a case of dacoity. He further stated that he had also gone to the Police Station. However, the denied the proceeding under Section 107 of the Code of Criminal Procedure.
9. P.W. 2 is also an eye-witness to the occurrence. He stated that he identified eleven accused persons while assaulting the deceased with first and slaps. In cross-examination the witness stated that when he reached at the place of occurrence he found Chandra Raut, the deceased, lying on the ground. The aforesaid piece of evidence gives an impression that he did not see the actual assault. Moreover, P.W. 4 has stated that it was dark when the occurrence took place. The witness further stated that the informant did not come with the villagers. He also went to the Police Station and found the dead body at the Police Station. However, he admitted that the proceeding under Section 107 of the Code of Criminal Procedure was instituted against the prosecution party.
10. The evidence of P.W. 3 is also similar to P.W. 2. He also admitted that proceeding under Section 107 of the Code of Criminal Procedure was instituted for grazing of crops against the prosecution party. P.W. 4 claimed that he had gone to the place of occurrence healing alarm raised by the informant. However, he claimed to identify only eight accused, persons. He admitted that he met the investigating Officer next day of the occurrence and at the time of occurrence it was dark. Therefore, it appears that evidence of eye-witnesses is not consistent on the material point. However, it is evident that though the witnesses claimed to have seen the assault but none of them stated that they raised alarm or tried to save the deceased, although natural conduct is that if such occurrence takes place witnesses present there, would try to save or raise alarm. Therefore, conduct of the witnesses appears to be peculiar. Moreover, P.W. 6 in his examination-in-chief stated that when he tried to save the deceased, the appellants tried to assault him and he returned to the, village. He did not say that at the relevant time he saw any person near the place of occurrence. He stated that when he came to the place of occurrence second time he found the witnesses present there. But this evidence is also contradicted by P.W. 6 himself saying that when he left the place of occurrence the witnesses also rail away to the village. Therefore, in such circumstances the evidence of eye-witnesses also becomes suspicious.
11. Furthermore, the Investigating Officer stated in his evidence that prior to recording First Information Report of Briksha Yadav, informant, P.W. 6, a case was lodged by appellant Jaggarnath Mahto. This itself indicates that appellants were present from before at the Police Station. He also stated that he arrested some of the accused persons in the Hospital and some at the Police station after recording fardbeyan of informant, P.W. 6. Therefore, it is evident that the accused persons themselves lodged a case. However, details of the case have not been brought on the record. Furthermore, the Investigating Officer stated in his evidence that no blood was found at the place of occurrence, whereas the witness stated that blood had fallen at the place of occurrence. The witness, however, did not say that the deceased was brought to the Police Station. He himself went to the Hospital and prepared inquest report and sent the dead body for post-mortem. It further appears from his evidence that P.W. 1 did not say before him that the informant raised alarm about the assault on his brother. The witness, P.W. 4, did not say that he identified Suraj Mahto while committing the offence. Therefore, it is evident from the discussion made above that the evidence of the witnesses does not inspire confidence.
12. Thus, on consideration as discussed above, this appeal is allowed. The judgment and order of conviction and sentences are hereby set aside. The appellants are on bail and as such they are discharged from the liability of the bail bonds.