Jasim Mian and Another and Aziruddin Mian @ Azharuddin Mian and Others vs State of Bihar

Lakshman Uraon, J.—Appellants Jasim Mian and Mokhtar Mian in Cr. Appeal No. 288 of 2000 (R) and appellants Aziruddin Mian alias Azharuddin Mian, Ayub Mian, Khurshid Mian, Anwar Mian and Abdul Mian alias Dulla Mian in Cr. Appeal No. 289 of 2000 (R) have preferred these appeals against the judgment and order of conviction and sentence dated 10th July, 2000 and 12th July, 2000 respectively, passed by Smt. Vidyut Prabha Singh, learned 2nd Additional Sessions Judge, Hazaribagh, in Sessions Trial No. 485 of 1998, whereby and whereunder, the appellants have been convicted under Sections 302/34 and 201/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life for the offence u/s 302/34 of the Indian Penal Code and to pay a fine of Rs. 5,000/- (five thousand) each and in default of payment of line, to undergo rigorous imprisonment for three years, with a direction that half of the realized fine will be paid to the informant Bina Devi. The learned 2nd Additional Sessions Judge however, did not pass any separate sentence for the offence u/s 201/34 of the Indian Penal Code.

The prosecution case, which is based on the basis of the fardbeyan (Ext. 4) of the informant Bina Devi (PW 18), recorded by S.I. Anuj Kumar (PW 16) of Barkakhana Police Station on 14.8.1997 at 10-00 a.m. near Dadi Dumuhani, wherein she has stated that her husband Jageshwar Singh on Monday''s morning went Ranchi, taking vehicle to bring sulphate (manure), informing that he will return home on Wednesday. When he did not return, then her elder son Prahlad Singh alias Makhu Singh went to Village-Barkagaon to bring his father on Wednesday on Motorcycle. When he also did not return till 7.00 p.m., then the informant along with her daughter Sarita Devi (PW 19), taking lantern, went in search of her husband and son up to Dadi pond. They heard alarm of "chhekco, idhar gaya udhar gaya" arid they also saw the torch light flashed off and on. Out of fear, the informant and her daughter returned home and remained restless throughtout the night. In the morning at 5.00 a.m. her younger son Prakash was sent on cycle along with Haroon in search of her husband and son to Village-Barkagaon. At about 6.30 p.m. Prakash returned home from Barkagaon and informed that his father and brother had left Barkagaon, taking cycle from Jitendra (PW I), as their motorcycle developed some mechanical defects. In the meantime, Jitendra (PW 1) of Village-Barkagaon also came to her and informed that her husband and son had left Barkagaon at 7.00 p.m. Jitendra returned to his Village-Barkagaon. The informant followed him up to Dumuhani in search of her husband and son. In the meantime, villagers Raghunadan alias Dubal Mahto and Punit Mahto (both not examined) informed that two dead bodies are lying in the ditch of Dumuhani. The informant went there and saw the dead bodies of her husband Jageshwar Singh and son Prahlad Singh in a ditch, where there was water. Their necks were slitted. She alleged that villagers Anwar Mian, Abdul Mian alias Dulla Mian, Azharuddin Mian, Ayub Mian, Khurshid Mian, Rafique Mian, Jasim Mian, Bhola Mian, Sultan Mian, Tasmat Mian and Mokhtar Mian have murdered her husband and son. All these accused were seen together at about 6.00 p.m. going towards Dumuhani from the village. They were also seen roaming in front of her house on motorcycle. In the morning on 14.8.1997 Anwar informed Sarita that now she has become orphan. Her husband had informed the informant that Anwar, Abdul, Azaharuddin and others used to threaten him, when he was going to attend Court in the case, pending in between them. They were pressing her husband to execute bond in the case otherwise he would not be alive in this world. There were two cases pending in between her husband and the named accused persons. Her husband was worried due to threat given by the accused persons. Anwar Mian had taken loan from Land Development Bank but he did not repay the loan and hence he was sent to jail, one and half month prior to the alleged occurrence. He had threatened her husband that when he will be coming out of the jail, then he will teach a lesson to him. After coming out of the jail, Anwar Mian had gone to the door of the informant and had threatened. Her husband was Ex-President of PAES and presently her son Prahlad was the President. Anwar was believing that they had sent him to jail in default of payment of the loan. On the basis of her fardbeyan, a case was registered and formal First Information Report (Ex. 5) was drawn and chargesheet was submitted against eleven accused persons, including the appellants, under Sections 302/201/34 of the Indian Penal Code. However, chargehseeted accused, namely, Bhola Mian, Tasmat Mian and Sultan Mian, absconded. Charges under Sections 302/34 and 201/34 of the Indian Penal Code were framed against Anwar Mian, Jasim Mian, Mokhtar Mian, Khurshid Mian, Azharuddin Mian, Ayub Mian, Abdul Mian and Rafique Mian alias Rafique Hussain.

The learned 2nd Additional Sessions Judge, Hazaribagh, considered the oral evidence of PW 4 Horil Bhuiann, PW 17 Kitti alias Kitka Bhulann, PW 18 Bina Devi (informant) and her daughter Sarita Devi PW 19 that their evidence found cor-robo-rated by the evidence of Dr. A.A. Farooqui (PW 9) and the Investigating Officer (PW 16) and convicted all these appellants u/s 302/34 and 201/34 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for life and to pay fine of Rs. 5000/- each and in default, to undergo rigorous imprisonment for three months each. However, accused Rafique Mian was acquitted under all the charges, framed against him, giving benefit of doubt.

Assailing the judgment and order of conviction and sentence passed against the appellants in both the Criminal Appeals, learned counsel submitted that the prosecution has examined altogether nineteen witnesses in order to support the prosecution case. Out of them, PWs 1, 2, 11, 13 and 15 are formal witnesses and have proved certain documents. PWs 3, 5, 6, 7, 8, 12 and 14 have not corroborated the prosecution case and hence their attention was drawn u/s 154 of the Evidence Act. Only PW 4 Horil Bhulann, PW 17 Kitti Bhuiyan, PW 18 Devi (informant) and PW 19 Sarita Devi, daughter of the informant, are the material witnesses in this case. PW 9 is the doctor, who conducted the post-mortem examination on the dead bodies of both the deceased and PW 16 Anuj Kumar is the Investigating Officer of this case. Prakash Singh, son of the informant, although had gone in the morning in search of his father and brother, has been examined as formal witness. PW 18, the informant, had met Dubal Mahto (PW 8) and one Punit Mahto, who informed that the dead bodies of her husband and son are lying in the Nala at Dumuhani. She was not informed by them that these appellants had murdered her husband and son. PW 8 Dubal Mahto has not supported the prosecution case and has been declared hostile whereas Punit Mahto has not been examined in this case. PW 17 Kitti Bhuiyan alias Kitka Bhuiyan claims to be the eye witness. He is labourer of the deceased and others also. He (PW 8) had gone to watch seedlings along with Kirtan Pandey (PW 3) and Punit Mahto to Dumuhani where he heard some hue and cry towards eastern side of the canal. They saw the deceased Jageshwar Singh and Prahlad surrounded by these appellants and assaulting them. When he objected, then Anwar Mian threatened him and asked him to flee away from that place otherwise he would be dealt with in the same manner as it was dealt with the deceased. There was enmity in between the deceased and the appellants and this witness (PW 8) was the labourer of the deceased. His evidence remains uncorroborated by the evidence of Kirtan Pandey (PW 3) whereas Punit Mahto has not been examined. He is an interested witness. In the morning the informant (PW 18) was informed by Dubal Mahto and Punit Mahto about the dead bodies of her husband and son, lying in a ditch of water at Dumuhani but they had not named these appellants as assailants of the deceased. PW 4 Horil Bhuiyan had gone to Hazaribagh to attend certain case and while returning home, at Barkagaon he met Jageshwar Singh and his son Prahlad Singh on a cycle. He proceeded on foot. He also met the appellants near Dumuhani. There is no evidence regarding purchase of any fertilizer by Jageshwar Singh from Ranchi. The fertilizer was not found on the cycle which was provided by PW 1 Jitendra Bishwakarma. Thus, the statement that Jageshwar Singh had gone to purchase fertilizer demolishes the prosecution story. The circumstantial evidence has not connected the chain unerringly to lead these appellants to be responsible for committing murder of Jageshwar Singh and his son Prahlad Singh. On these grounds it was submitted that the learned Court below has not appreciated the evidence of interested witnesses, who are on inimical terms with these appellants due to the Sessions Cases, pending in between them and has passed the order of conviction and sentence.

Learned A.P.P. has submitted that the deceased Jageshwar Singh had gone Ranchi to purchase fertilizer on a vehicle. When he did not return in schedule time then his son Prahlad Singh went to bring him on a motorcycle. The motorcycle having developed some mechanical defects, they were returning on a new cycle, provided by Jitendra Bishwakarma. PW 3 Kirtan Pandey had gone to watch seedling at Dumuhani along with Punit Mahto, Dubal Mahto (PW 8) and Kittl Bhuiyan alias Kitka Bhuiyan (PW 17). They are the eye witnesses of the alleged occurrence and have supported the prosecution case that these appellants assaulted Jageshwar Singh and Prahlad Singh. PW 4 Horil Bhuiyan had also seen, both the deceased and the appellants near Dumuhani when he was returning home from the market. The doctor (PW 9), who conducted the post-mortem examination on the dead bodies, found the necks of the deceased cut and submitted his reports (Exts. 2 and 2/1). PW 16 Anuj Kumar, I.O.. in course of investigation found the dead bodies in a water ditch at Dumuhani and seized the blood stained soil, prepared inquest reports, seized cycle and other materials and prepared seizure list. PW 17 Kitti Bhuiyan is the eye witness of the alleged occurrence and has named Khurshid, Ayub, Azharuddin, Anwar, Tasmat, Jasim, Bhola Mian, Sultan Mian, Mokhtar Mian, Abdul Mian and one another assaulting Jageshwar Singh and his son Prahlad Singh. When he objected then Anwar had threatened him to meet the same fate and ordered him to flee away. He saw the alleged occurrence and identified these appellants and others in the moon light. On these grounds it has been submitted that the learned Court below has rightly appreciated the evidence of the prosecution witnesses while convicting and sentencing the appellants.

It is an admitted fact that there was enmity in between the deceased and the appellants. The case of the prosecution is based on the evidence of PW 4 Horil Bhuiyan, his son Kitti Bhuiyan alias Kitka Bhuiyan (PW 17), informant Bina Devi (PW 18) and her daughter Sarita Devi (PW 19). PW 4 and PW 17 have also admitted that they are accused in Sessions Cases instituted by Abudllah. Thus, the only interested witnesses have supported the prosecution case, whose evidence has to be considered cautiously. PW 4 Horil Bhuiyan had seen Jageshwar Singh and his son Prahlad Singh when he was returning his village home from Hazaribagh. Both the deceased were on cycle. They asked this witness to proceed ahead. When Horil Bhuiyan (PW 4), reached near Dumuhani bridge, then he met Azharuddin Mian, Ayub Mian, Tasmat Mian, Kudus Mian, Sultan Mian, Abdul Mian and others, who were ten to eleven in number, standing there. At that very moment Jageshwar Singh and his son Prahlad Singh reached there, who were stopped for some talks by those ten to eleven persons. This witness went to his home. In the next morning he came to know that Jageshwar Singh and his son have been murdered at Dumuhani field near a ditch where their dead bodies were lying. PW 17 Kitti Bhuiyan alias Kitka Bhuiyan had gone to watch the uprooted paddy seedlings in the field near Dumuhani along with Dubal Mahto (PW 8), Kirtan Pandey (PW 3) and Punit Mahto. When they reached bear Dumuhani bridge, they heard hue and cry. They saw Prahlad Singh and Jageshwar Singh surrounded by Khurshid Mian, Ayub Mian, Azharuddin Mian, Anwar Mian, Tasmat Mian, Jasim Mian, Bhola Mian, Sultan Mian, Mokhtar Mian, Abdul Mian and one another and being assaulted by them. This witness asked as to why they were assaulting, then appellant Anwar Mian threatened him to meet the same consequences. Then this witness and others fled away and went to their houses. PW 18 Bina Devi along with her daughter Sarita Devi (PW 19), taking lantern, went in search of Jageshwar Singh and Prahlad Singh. When they reached near a pond of Village-Barkagaon road, then they saw flashing of torch light and heard utterance of the assailants to surround Jageshwar Singh and his son Prahlad Singh as they were fleeing away hither and thither. Out of fear both the witnesses returned home. In the morning Prakash along with Harun went in search of Jageshwar Singh and Prahlad Singh on a cycle and returned in evening and informed that Jitendra Bishwakarma had provided them a cycle on which Jageshwar and Prahlad had returned home in the evening itself. Both these witnesses had seen the appellants roaming on motorcycle in front of their doors on the alleged day of occurrence i.e. 13.8.1997. PW 18 Bina Devi saw all these appellants in the evening going towards Dumuhani. On the next day Anwar (appellant) had informed PW 19 Sarita Devi that now she has become orphan. Appellant Anwar had threatened that he will teach a lesson after being released from jail. PW 8 Dubal Mahto has denied to have seen any occurrence and was declared hostile by the prosecution. On his information, PW 18 and PW 19 had gone to Dumuhani and saw the dead bodies of Jageshwar Singh and Prahlad Singh in the water of a ditch. Thus, this part of evidence that, on the information of PW 8 Dubal Mahto, both these witnesses PW 18 and PW 19 went to the place of occurrence and saw the dead bodies, is relevant to prove the fact that PW 8 Dubal Mahto is an eye witness. But subsequently he has resiled from his earlier statement, made before the I.O. that he had seen these appellants assaulting Jageshwar Singh and Prahlad Singh with chura resulting their death. The I.O. (PW 16) in course of investigation went along with chowkidar and police force to Dadi Dumuhani on 14.8.1997 at 10.00 a.m. and recorded the fardbeyan of Bina Devi. He found the place of occurrence at a distance of 1 Km. away from Village Dadi Kala Dumuhani nala towards south east. He found drain, 20 ft. in width, running from north to south and there was water flowing up to 1 ft. He found the dead body of Jageshwar Singh, whose neck was cut. The blood had flown into the water. In the field of Gopal Mahto he found blood stained soil and marks of foot steps and the field was crumbled within an area of 8 ft. On the ridge he found one plastic chappal He also found blood stained soil beneath a nearby Currenge tree. There was an orchard at a distance of 100 yards. From that place at a distance of 100 yards he found the dead body of Prahlad Singh in drain, which was at a distance of 150 yards away towards south from the first place of occurrence, where the dead body of Jageshwar Singh was found. The blood was oozing out and was flowing into the water. He also found seal of Co-operative Department under a tree in the mango orchard. He also found one new cycle and vegetables, which were seized in presence of the witnesses and prepared seizure list (Ext. 6/1). The cycle was given in Jimmanama (Ext. 7) to Prakash Kumar Singh. He also seized blood stained soil, plastic chappal in presence of the witnesses and prepared seizure list (Exts. 6/2 and 6/3).

PW 9 Dr. A.A. Farooqui on 14.8.1997 at 4.00 p.m. conducted post-mortem examination on the dead body of Prahlad Singh and found rigor mortis present in all the four limbs. He found (i) Incised wound on the front of neck, more on the right side than the left side up to vertebra. All the soft tissues including muscles, trachea, food pipe-and great vessel of the neck severed, (ii) Penetrating wound 1" x 1/2" x muscle deep on the front of chest in the fourth space, (iii) Penetrating wound 1" x 1/2" x upto lung in the 5th place on the right side and (iv) Penetrating wound 1" x 1/2" x 2" right lumber region. This witness opined that the cause of death was shock and haemorrhage from the above injuries and prepared post-mortem report (Ext. 2) in carbon process. The death was caused in between 6 to 8 hours or 10 hours or 30 hours from the time of examination.

He (PW 9) also conducted the postmortem examination on the dead body of Jageshwar Singh at 5.00 p.m. on the same day and found rigor mortis present in all the four limbs. He found incised wound on front of neck, right side more than the left side up to vertebra. The vertebral column were cut completely intervening soft tissues like muscle, trachea, food pipe and great vessel. The doctor opined that the cause of death was shock and haemorrhage, due to the above injuries, caused within 36 hoars from the time of examination. He prepared post-mortem report (Ext. 2/1) in carbon process in his pen and signature. Deceased Jageshwar Singh had only one injury on his person.

In the present case only, the interested witnesses, who are wife and daughter of the deceased Jageshwar Singh, have been examined by the prosecution as material witnesses and independent witness is PW 4 Horil Bhuiyan, although he has admitted that he is also accused in S.T. No. 27 of 1993, S.T. No. 113 of 1989 and Complaint Case No. 591 of 1993, instituted against him and others by accused Abdullah. He saw the deceased and the appellants near Dumuhani and identified Azharuddin Mian, Ayub Mian and Abdul Mian (appellants in Cr. Appeal No. 289 of 2000R). He has not named the other appellants, namely, Khurshid Mian and Anwar Mian, both appellants of Cr. Appeal No. 289 of 2000R and Jasim Mian and Mokhtar Mian (appellants of Cr. Appeal No. 288 of 2000R). PW 10 Janki Singh had simply guessed that Sultan Mian, Hula Mian, Hasmat Mian and Rafique Mian (not appellants) and Anwar Mian (appellant in Cr. Appeal No. 289 of 2000R) might have murdered Jageshwar Singh and Prahlad Singh. He has not suspected or guessed against the rest six appellants, namely, Jasim Mlan, Mokhtar Mian. Azharuddin Mian, Ayub Mian, Khurshid Mian and Abdul Mian.

PW 17 Kitti Bhuiyan alias Kitka Bhuiyan, who claims himself to be the eye witness and who had gone to Dumuhani along with Dubal Mahto (PW 8), Kirtan Pandey (PW 3) and Punit Mahto (not examined), saw all these seven appellants of both the Criminal Appeals Hasmat Mian and Bhola Mian. The informant Bina Devi (PW 18) saw these appellants besides Sultan Mian, Bhola Mian and Rafique Mian going towards Dumuhani in the evening of 13.8.1997. PW 19 Sarita Devi claims that she saw Anwar Mian. Khurshid Mian, Ayub Mian, Azharuddin Mian, all in Cr. Appeal No. 289 of 2000R, Jasim Mian (appellant in Cr. Appeal No. 288 of 2000R), Hasmat Mlan, Sultan Mian, Bhola Mian and Rafique Mian (not appellants) going towards Barkagaon. PW 1 Jitendra Bishwakarma is a resident of Barkagaon, He used to help Jageshwar Singh in his business. The sulphate was unloaded in the shop of Jageshwar Singh and thereafter when Prahlad Singh had gone there along with motorcycle to bring his father Jageshwar Singh back to the village home Dadikala, they were provided two new cycles by this witness PW 1 as their motorcycle developed some mechanical defect. Later on he also went to village-Dadikala from Barkagaon and informed the informant (PW 18) that he had provided new bicycles to the deceased. In the morning PW 18 Bina Devi sent her younger son Prakash Kumar Singh (PW 11) along with Haroon in search of her husband and son. On 13.8.1997 in between 7.00 to 9.00 p.m. she and her daughter had gone in search of her husband and son, taking lantern, towards Dumuhani up to a pond. They heard hue and cry and flashing of torch lights off and on, who were uttering to surround as they were fleeing away hither, and thither. Due to fear, she and her daughter Sarita Devi returned home and remained restless throughout the night but did not inform anyone in the village. In the morning also the informant instead of sending her son Prakash along with his friend Haroon in search of her husband and son at Dumuhani, where there was some commotion at night, sent them to Barkagaon to enquire about her husband and son there is no eye witness as to who assaulted whom and the manner of the alleged occurrence has also not been proved by the prosecution. PW 18 and PW 19 did not go to the place of occurrence rather they returned back home. PW 17 claims that he along with Dubal Mahto (PW 8), Kirtan Pandey (PW 3) and Punit Mahto went to Dumuhani to watch uprooted paddy seedlings. PW 8 Dubal Mahto has denied to have seen any occurrence and hence he was declared hostile by the prosecution whereas Kirtan Pandey (PW 3) is a hearsay witness and Punit Mahto has hot been examined by the prosecution. This witness PW 17 claims to have seen Khurshid Mian, Ayub Mian, Azharuddin Mian, Anwar Mian, Hasmat Mian. Jasim Mian, Bhola Mian, Sultan Mian, Mokhtar Mian, Abdul Mian and one another to whom he could not identify, assaulting Jageshwar Singh -and his son Prahlad Singh. The evidence of this witness has not been corroborated by any other witness, although they are on inimical terms. He claims to have identified the assailants In the moon light and when objected, then appellant Anwar Mian threatened him and hence he fled away. He did not inform anyone in the village at night. At the bridge at Dumuhani he did not see any appellants but when he proceeded towards orchard at a distance of 10 to 20 steps, then he saw the alleged occurrence towards east of the orchard on a Tand (open field) of Anku Mahto. All the assailants were seen by him on their backside. In view of this fact that he saw, the assailants on their backside at night from a distance of 10 to 20 steps, who were eleven in number, out of whom he claimed to have identified 10 persons, seems to be improbable. He has not deposed as to who assaulted whom He is also in inimical terms with the appellants.

Learned counsel for the appellants has submitted that the ocular evidence regarding manner of the alleged occurrence does not get support by the medical evidence of Dr. A.A. Farooqui (PR 9) and has relied on a case, reported in Kathi Odhabhai Bhimabhai and others Vs. State of Gujarat, , as the sole eye witness PW 17 who is also on inimical terms, has not deposed regarding the manner of the alleged occurrence as to how these appellants, seven in number, assaulted Jageshwar Singh and Prahlad Singh, causing their death. Deceased Prahlad Singh sustained one incised wound and three penetrating wounds on his neck, front of chest, 5th space on the right side up to lungs and right lumber region respectively. The doctor PW 9 opined that the time elapsed since post-mortem examination might have been in between 6 to 8 hours or 10 hours. He conducted the post-mortem examination on 14.8.1997 at 4.00 p.m. and the alleged occurrence took place on 13.8.1997 in between 7.00 to 9.00 p.m.. Thus, the time of alleged occurrence also does not corroborate the time as assessed by PW 9 whereas he has deposed that it can be assumed to be within 36 hours, although he has not mentioned the time elapsed since death in his oost-mortem examination Report (Ext. 2). On the same day at 5.00 p.m. he conducted the post-mortem examination the dead body of Jageshwar Singh and found incised wounds, front of neck, right side more than left side up to vertebra, cutting completely intervening soft tissues and great vessels were cut. He opined that the time elapsed since death was 36 hours from the time of examination. He has not mentioned in his postmortem report (Ext. 2/1) about the time elapsed since death from the time of postmortem examination.

Learned counsel for the appellants has submitted that the sole eye witness PW 17 Kitti Bhuiyan is on inimical terms with the appellants, as the other witnesses i.e. PW 18, PW 19 and PW 4 are also on inimical terms with the appellants. The witnessing of the entire occurrence by the sole eye witness (PW 17) in the circumstances and at the time and place of occurrence of assault can not be possible and has relied on a case, reported in Jagdish Prasad and others Vs. State of Madhya Pradesh, .

The evidence of the intersted eye witness Kitti Bhuiyan alias Kitka Bhuiyan (PW 17) could not be corroborated by any other independent village witness, who are Dubal Mahto (PW 8), who turned hostile, and non-examination of Punit Mahto, who had also gone to watch the uprooted paddy seedlings. PW 17 Kitti Bhuiyan is the labourer of the informant Bina Devi (PW 18) and her daughter Sarita Devi (PW 19) are not the eye witnesses of the alleged occurrence. At night, out of fear, they returned home, who had gone in search of Jageshwar Singh and Prahlad Singh, taking a lantern. At night they did not raise alarm in the village. They did not inform anyone in the village to go and search her husband and son at Dumuhani which is at a distance of 1 Km. away from Village-Dadikala. PW 1 Jitendra Bishwakarma who resides at Barkagaon, had no occasion to come to Village- Dadikala to inform that he had provided two bicycles to the deceased for returning home as their motorcycle developed some defect. In the morning the informant instead of sending her son Prakash Kumar Singh (PW 11) along with his friend Haroon in search of Jageshwar Singh and Prahlad Singh to Dumuhani, sent them to Barkagaon. It is also not convincing that when she came to know that there was some commotions In the evening in between 7.00 to 9.00 p.m. at Dumuhani, she returned home due to fear even then she did not inform his son and other villagers to go to Dumuhani. The Investigating Officer recovered only one new cycle from the well near the Dumuhani. Both the. deceased were returning on their separate new cycles. provided by Jitendra Bish-wakarma PW 1 Jitendra Bishwakarma that he provided two bicycles. The motorcycle of the deceased and the sulphate (manure), which was unloaded at Barkagaon Godown by the deceased Jageshwar Singh could not be brought on record by the I.O.

In view of this fact. I find that actually there is no eye witness of the alleged'' Occurrence. Enmity is admitted and due to enmity it seems that these appellants have been dragged in this case. PW 3 Kirtan Pandey is a hearsay witness, as he was behind Punit Mahto, Dubal Mahto and Kitti Bhuiyan while going to watch the uprooted paddy seedlings. They informed him that Prahlad and Jageshwar were being assaulted and hence they fled away. His statement was not recorded by the I.O. PW 4 Horil Bhuiyan, who is on inimical terms with the accused, has last seen the deceased and the appellants near Dumuhani. PW 18 and PW 19 have only seen the appellants going towards Barkagaon. Moreover, PW 17, besides these seven appellants, has named Hasmat Mian, Bhola Mian and Sultan Mian, who are not appellants whereas PW 18, besides these seven appellants, has named Hasmat Mian, Sultan Mian, Bhola Mian, Rafique Mian and PW 19 has also seen these appellants besides Hasmat Mian, Sultan Mian, Bhola Mian and Rafique Mian going towards Barkagaon.

Thus, I find that the order of conviction and sentence passed by the learned Court below suffers from wrong appreciation of the evidence of sole eye witness Kitti Bhuiyan alias Kitka Bhuiyan (PW 17), who is on inimical terms with the appellants and who claims himself to be the witness, without any corroboration. His evidence under the circumstances to have witnessed the entire occurrence from a distance of 10 to 12 steps in a moonlit night is quite improbable, having regard to his conduct that he did not inform the villagers at night. Moreover the conduct of the informant (PW 18) and her daughter (PW 19) also creates doubt in the prosecution case, which is only due to enmity. Hence the judgment and order of conviction and sentence passed by the learned Court below can not be sustained in absence of the corroboration of the evidence of the sole eye witness (PW 17), who is on inimical terms with the appellants, by independent village witnesses. Accordingly, benefit of doubt must go to these appellants.

In the result both these Criminal Appeals are allowed and the judgment and order of conviction and sentence passed by the learned 2nd Additional Sessions Judge, Hazaribagh, in Sessional Trial No. 1998, is hereby set aside. As Aziruddin Mian alias Azharuddin Mian (Appellant No. 1 in Cr. Appeal No. 289 of 2000R) is on bail, he is discharged from the liabilities of bail bonds. So far other six appellants, namely, Jasim Mian and Mokhtar Mian (Cr. Appeal No. 288 of 2000R); Ayub Mian, Khurshid Mian. Anwar Mian and Abdul Mian alias Dulla Mian (Cr. Appeal No. 289 of 2000R) are concerned they are directed to be set at liberty forthwith, if not required in any other case.