Prasadi Yadav and Others vs The State of Bihar

M.L. Visa, J.—This appeal is directed against the judgment dated 22.8.2001 and order dated 23.8.2001 passed by lllrd Additional Sessions Judge, Jamui in Sessions Case No. 191 of 1986 convicting and sentencing the appellants Prasadi Yadav, Kesho Yadav and Suraj Yadav to undergo rigorous imprisonment for life u/s 302 of Indian Penal Code (In short "IPC"), rigorous imprisonment for one year u/s 147 of IPC and rigorous imprisonment for three years under Section. 27 of Arms Act and appellants Uchit Yadav and Radhey Yadav to undergo rigorous imprisonment for life under Sections 302/149 of IPC and rigorous imprisonment for one year u/s 147 of IPC. The different sentence passed against appellants have been ordered to run concurrently. The brief facts of the case are that informant Mahendra Yadav (PW 6) on 1.6.1985 at about 6.15 PM alongwith Sudama Yadav (PW 2) went to Gambharia Police Station and lodged a first information report stating therein that on the same day in the morning, he alongwith Sudama Yadav (PW 2), Nand Lal Yadav (PW 3) and Uchit Yadav (P W 4) had gone to Jamui to meet deceased Madan Yadav who had gone to Jamui on the morning of 29.5.1985. He and his companions met Madan Yadav at Jamui and after finishing the Court''s work, he and his aforesaid companions and Madan Yadav all left Jamui by taxi jeep for their village Gambharia and they all at about 11.30. AM reached Dadpur More and from there, they boarded a public bus at about 12.45 PM and reached Dwarpahdi More at about 1.20 PM. After getting down from the bus at Dwarpahdi More, informant and his aforesaid companions proceeded to their house on foot and about 1.30. PM when they reached a place four hundred yards from Dwarpahdi High School, all of a sudden, all the appellants alongwith co-accused Matuki Yadav, Bharosi Yadav, Arjun Yadav and Dhaturi Yadav came there from the western side of road. Appellant Prasadi Yadav, Suraj Yadav and Kesho Yadav were armed with pistols whereas other appellants were empty handed. The appellants caught hold of deceased Madan Yadav and appellant Prasadi Yadav fired on left side of temple of deceased Madan Yadav. Informant and his companions wanted to raise hulla but the appellants gave them threatening that in case they raised any alarm, they would also be killed compelling them to keep quiet out of fear and, thereafter, appellants, by dragging the deceased Madan Yadav, put him in a field towards east of road where appellant Suraj Yadav also fired on temple of deceased Madan Yadav and appellant Kesho Yadav fired on his abdomen. Deceased Madan Yadav died then and there and all appellants fled away towards north. On hearing the sound of firing, neighbouring witnesses came there to whom informant and his companions narrated the entire incident. About the motive, informant stated in first information report that there was litigation from before between the parties. On the basis of Fard-e-bayan of informant, the police instituted the case against appellants and co-accused Matuki Yadav, Bharosi Yadav, Arjun Yadav and Dhaturi Yadav and after investigation submitted chargesheet under Sections 147, 148, 149, 302 of IPC and Section 27 of Arms Act. Cognizance of the case was taken and the case was committed to the Court of Session where charges u/s 147 of IPC were framed against appellants and co-accused Matuki Yadav, Arjun Yadav, Bharosi Yadav and Dhaturi Yadav and charges u/s 302 of IPC and Section 27 of Arms Act were framed against appellants Prasadi Yadav, Suraj Yadav and Kesho Yadav and under Sections 302/149 of IPC against appellants Uchit Yadav and Radhey Yadav as well as co-accused Arjun Yadav, Matuki Yadav, Dhaturi Yadav and Bharosi Yadav. After trial, co-accused Arjun Yadav, Dhaturi Yadav, Matuki Yadav and Bharosi Yadav were not found guilty and they were acquitted. So far appellants are concerned, they were held guilty and were convicted and sentenced, as stated above.

The case of the appellants is that on account of enmity, they have been falsely implicated in this case and deceased Madan Yadav was a veteran criminal, was involved in a number of cases, was having number of enemies and possibility of his being murdered by his other enemies cannot be ruled out and they have been falsely implicated in this case because prosecution party was on inimical terms with them having litigation and in some cases lodged by appellants, informant and his relations had been convicted and sentenced to jail custody.

In order to prove its case, six witnesses have been examined on behalf of the prosecution. Mahendra Yadav (PW 6) is the informant. Laxman Sharma (PW 1) and Raj Kumar Singh (PW 5) are formal witnesses who have proved formal first information report (Exhibit-1), post mortem examination report (Exhibit-1/A), inquest report (Exhibit-2), case diary (Exhibits-3 and 3/1), seizure list (Exhibit-4) and signature of informant on first information report (Exhibit-1/1). Sudama Yadav (PW 2), Nandlal Yadav (PW 3) and Uchit Yadav (PW 4) are other witnesses claiming to be eye witnesses to the occurrence. Sudama Yadav (PW 2), in his evidence, has said that on 1.6.1985 at about 1.30. PM when he alongwtih deceased Madan Yadav, informant Mahendra Yadav, Nandlal Yadav (PW 3) and Uchit Yadav (PW 4) was going to his village while returning from Jamui and when reached a place, which was a Kacha road and which is five hundred yards north 1rom Dwarpahdi High School, appellants alongwith their companions who were co-accused Matuki Yadav, Bharosi Yadav, Arjun Yadav and Dhaturi Yadav surrounded him and appellants Prasadi Yadav, Kesho Yadav and Suraj Yadav were armed with revolvers. Appellants Prasadi Yadav fired on left side of temple of deceased Madan Yadav who fell down, thereafter, appellants and their companions took Madan Yadav by dragging in a field at a distance of about 100-115 yards north where appellant Suraj Yadav fired on right side of temple of deceased Madan Yadav and appellant Kesho Yadav fired on his abdomen. Madan Yadav died then and there. He has further said that when he and his companions tried to raise hulla, appellants gave them threatening that in case they raise alarm, they would also be killed and, thereafter, the appellants and their companions fled away towards north. He has said that he and informant went to Police Station leaving their companions to look after the dead body of deceased Madan Yadav. Giving his relation with deceased he, in para-6 of his cross-examination, has admitted that deceased Madan Yadav was his cousin. About informant, he has admitted that informant is his uncle and about witness Nandlal Yadav (PW 3), he has said that he is also his uncle. In cross-examination, he has admitted that for the murder of Mathura Yadav, a case bearing Sessions Case No. 680 of 1983 was registered in which he, deceased Madan Yadav, informant Mahendra Yadav and witness Nandlal Yadav (PW 3) were accused and they were convicted and sentenced to undergo rigorous imprisonment for life but has refused to have any knowledge that in that case, appellant Prasadi Yadav and co-accused Matuki Yadav and Bharosi Yadav had deposed against him and his other companions. He has further admitted that his father Asho Yadav and uncle Mahendra Yadav, who is informant of this case, and others had filed Title Suit No. 6 of 1989 in the Court of Munsif, Jamui against the appellant Prasadi Yadav and co-accused Matuki Yadav and Arjun Yadav but has denied the knowledge of the fact that in that case, appellant Suraj Yadav and co-accused Bharosi Yadav had deposed against plaintiffs. Nandlal Yadav (PW 3), in his evidence, has said that on the day of occurrence, which was Saturday, he, alongwith informant Mahendra Yadav (PW 6), Sudama Yadav (PW 2) and Uchit Yadav (PW 4) had gone to search deceased Madan Yadav and met him at about 10 O''clock and, thereafter, they all boarded a bus for Dadpur and reached Dadpur and at Dadpur, they again boarded an another bus for coming to their village and they got down from the bus at Dwarpahdi More and, thereafter, proceeded on foot towards their village and in the way, they were surrounded by all the five appellants and co-accused Dhaturi and Matuki Yadav who came out from bushes and appellant Prasadi, Kesho and Suraj were armed with pistol and appellant Prasadi fired on temple of deceased Madan Yadav as a result of which deceased fell down and, thereafter, he was dragged by appellants and their companions to Bahiyar where appellant Suraj fired on his temple and appellant Kesho fired on his abdomen as a result of which deceased Madan Yadav died and appellants and their companions fled away from the place of occurrence. In cross-examination, he has admitted that informant Mahendra Yadav is his brother and witness Sudama Yadav is (P.W. 2) is his nephew. In cross-examination, he has also admitted that Mathura Yadav was brother of appellant Rahey Yadav and co-accused Dhaturi Yadav and trial of a case bearing Sessions Trial No. 80 of 1983 was held in which he, informant, Sudama and deceased Madan Yadav were accused and appellant Suraj Yadav was informant of that case. He has further admitted that for a land of plot No. 977 under khata No. 88, there is dispute between prosecution party and appellants. Unchit Yadav (PW 4), supporting the case of prosecution, has also said that on the date of occurrence, he alongwith deceased, informant and Nandlal Yadav reached Dadpur from Jamui by a public bus and at Dadpur, they boarded an another bus which they left at Dwarpahdi More and from there when they proceeded on foot for their village, all the five appellants alongwith co-accused Dhaturi Yadav, Arjun Yadav and Bharosi Yadav all of a sudden appeared before them, appellants Prasadi Yadav, Suraj Yadav and Kesho Yadav were armed with revolvers and appellant Prasadi Yadav fired on temple of deceased and when he and his companions raised hulla, they were given threatening by appellants and their companions and they were frightened and when deceased fell down, he was dragged to Bahiyar by appellants and their companions and at Bahiyar, appellant Suraj fired on the temple of deceased and appellant Kesho fired on his abdomen and deceased died appellants fled away. He has further said that on hulla, a number of persons assembled and matter was reported to police and police reached the place of occurrence. In cross-examination, he has admitted that deceased was his nephew and informant and witness Nandlal are his cousins. He has further admitted that there were number of cases against deceased. He has further admitted that Mathura Yadav was the brother of appellant Radhey Yadav and in the case of murder of Mathura Yadav, deceased and informant alongwith others were accused in which deceased, informant, witnesses Sudama Yadav (PW 2) and Nandlal Yadav (PW 3) were sentenced to undergo rigorous imprisonment for life. He has denied the knowledge of the fact that in that case, appellants Prasadi, Kesho, Uchit and co-accused Matuki Yadav had deposed but has admitted that Jadu Yadav was a witness of that case. He has further denied the knowledge of the fact that Jadu Yadav had filed a title suit against deceased and others.

Mahendra Yadav (PW 6) is the informant. He has said that the occurrence took place on 29.5.1985 at about 1.30.PM. He has said that on that day at about 10.30 AM, he alongwith Sudama Yadav (PW 2), Nandlal Yadav (PW 3) and Uchit Yadav, son of Gopal Yadav (PW 4) was coming to his village from Jamui where he had met deceased in Jamui Court and they all were returning to their village and they all reached Dadpur at about 11.30 AM and from there, they boarded a bus from which they came to Dwarpahdi More and from there, they proceeded to their village on foot and at about 1.30 PM when they reached a Kachi road, all the five appellants alongwith co-accused Arjun Yadav, Matuki Yadav, Dhaturi Yadav and Bharosi Yadav all of a sudden appeared, appellants Suraj, Kesho and Prasadi were armed with revolvers, appellant Prasadi fired on temple of deceased and when he and his companions raised alarm, they were given threatening by appellants and their companions that they would also be killed and when deceased started tossing, he was dragged to a field where appellant Suraj Yadav fired on his temple and appellant Kesho Yadav fired on his abdomen and deceased died and appellants fled away. He has further said that on raising alarm, neighbouring persons reached there but after considerable delay. He has proved his signature (Exhibit-1/1) on his Fard-e-bayan. In cross-examination, he admitted that he was produced from Bhagalpur Central Jail where he was serving sentence passed against him in Sessions Trial No. 680 of 1983. He has further admitted that appeal filed by him against the judgment passed by lllrd Additional Sessions Judge, Munger in that case has been dismissed by this Court and that case was lodged for the murder of Mathura Yadav and appellant Suraj Yadav was informant in that case and witnesses Sudama Yadav (PW 2), Nandlal Yadav (PW 3) and deceased were also sentenced to undergo rigorous imprisonment for life in that case. He has admitted that witnesses Nandlal Yadav (PW 3) and Uchit Yadav (PW 4) are his brothers and witness Sudama Yadav (PW 2) is his nephew. His further admission is that in Case No. 394C of 1967 lodged by Most. Kami Devi for the allegation of assault, he, his father, his son and deceased were accused and were convicted and appeal against their conviction was also dismissed. He has further admitted that for lands of plots No. 920 and 964 under khata No. 88 he, Asho and others had filed a title suit, the number of which was 6 of 1989 and in that case appellants Prasadi Yadav, Uchit Yadav and co-accused Matuki Yadav, Arjun Yadav were defendants. According to him, deceased Madan Yadav had come to Jamui on 29.5.1985 in connection with title suit and he reached Jamui at 10 AM on 29.5.1985 and met deceased Madan Yadav. He further says that in the Court, he had seen appellants Kesho Yadav, Radhey Yadav and co-accused Arjun Yadav, Matuki Yadav and Dhaturi Yadav and there was exchange of hot words between the deceased and the appellants. In para-27 of his cross-examination, he further reiterates that after the exchange of hot words on 29.5.1985, he and his companions proceeded to their village and first went to Dadpur by a trekker and appellants also boarded another trekker following them and he and his companions reached Dadpur at 10.30 AM. In para-48 of his cross-examination, he has again repeated that entire occurrence took place on 29.5.1985. Raj Kumar Singh (PW 5) is a formal witness who has proved post mortem examination report (initially marked as Exhibit-1 but subsequently by order dated 16.5.2001 corrected as Exhibit 1/A), inquest report (Exhibit-2), para-1 to 32 of case diary (Exhibit-3) and paras-32 to 88 of case diary (Exhibit 3/1). In this case, the doctor who is said to have conducted autopsy on the dead body of deceased has not been examined and post mortem examination report, as stated above, has been proved by Raj Kumar Singh (PW 5), a pleader''s clerk and a formal witness. The learned counsel of appellants submits that post mortem examination report not proved by a competent witness is inadmissible and in absence of post mortem examination report, cause of death cannot be ascertained and if such post mortem examination report is taken into consideration, it will cause prejudice to the case of defence. He has further submitted that, relying upon a decision of a Division Bench of this Court in the case of Sheo Govind Bin and another vs. State of Bihar (1985 BBC J 632) [:1985 PLJR 1069], this point was raised before the Court below which erroneously held that post mortem examination report was admissible u/s 32 of Indian Evidence Act on the ground that attendance of doctor in this case could not have been secured without delay. From the judgment of Court below, I find that on this point, the prosecution, relying upon a decision reported in 1993 Criminal Law Journal 772, had argued that when there is direct evidence already on record to prove the charge, non-examination of doctor will not be fatal as expert''s opinion is not required for proving offences. I further find that the Court below, after observing that in spite of issuance of summons, the doctor did not appear, it was sufficient to prove that attendance of doctor could not have been procured without an amount of delay accepted the plea of prosecution that post mortem examination report was admissible u/s 32 of Indian Evidence Act. But at the same time, the Court below has also observed that "no doubt prosecution has not brought any evidence to show that doctor is dead or his attendance could not be secured without any amount of delay or he is incapable of giving evidence." In spite of all these facts because the Court below found that in spite of issuance of summons, doctor had not appeared, it amounted that his attendance could not have been procured without delay. I, therefore, find that the aforesaid reasoning given by Court below for making the post mortem examination report admissible u/s 32 of Indian Evidence Act is not according to law. On the plea of prosecution that when there is direct evidence against the appellants for committing the murder of deceased, non-examination of doctor conducting autopsy on the dead body of deceased will not be fatal to the case of prosecution, I find that the direct evidence of occurrence has come from witnesses who are not only closely related to each other but are on highly inimical terms with the appellants. I have already discussed admission of prosecution witnesses as to their relationship with each other in the precedent paragraphs. Informant, his nephew Sudama Yadav (PW 2) and his brother Nandlal Yadav (PW 3) have admitted that in a case filed by appellant Suraj Yadav for the murder of Mathura Yadav, they have been awarded sentence of rigorous imprisonment for life. Informant, in para-50 of cross-examination, has admitted that after occurrence more, than two hundred persons of neighbouring areas came there. Uchit Yadav (PW 4) has also said that on hulla, a number of persons had assembled at place of occurrence. In spite of such admission of prosecution witnesses that at place of occurrence, a number of persons had assembled not a single witness from those persons has been examined by prosecution. The Court below has taken note of the fact that prosecution witnesses claiming themselves to be eye witnesses of the occurrence are closely related to each other and it has rightly observed that relationship between the prosecution witnesses itself will not be a ground to discard their testimony and in such a situation only requirement is that their evidence requires close scrutiny. Here, I find that it is not a case in which prosecution witnesses, who have deposed about the occurrence are not only closely related to each other but they are also on highly inimical terms with the appellants which they have admitted in their evidence and which is also proved by Exhibits-A to E brought on record by defence which are copies of judgments and depositions of some of the appellants in different cases including Sessions Trial No. 680 of 1983 in which irnurmant and witnesses, namely, ''Sudama Yadav and Nandlal Yadav were sentenced to imprisonment for life and their appeal was dismissed. Informant was produced from jail to depose in this case and he admitted that witnesses Nandlal Yadav and Sudama Yadav were also in jail with him in the case which was filed by appellant Suraj Yadav. Not only this, the evidence of informant and other witnesses who have deposed on the point of occurrence suffers from material contradictions. The case of prosecution is that occurrence took place on 1.6.1985 but the informant, in his evidence, has given a complete go bye to this date of occurrence which according to him was 29.5.1985 at 1.30 PM. Not only in para-1 but also in para-22 he stated that deceased Madan Yadav had come to Jamui to attend a title suit which was fixed on 29.5.1985. In para-25 also, he again deposed that he reached Jamui Court on 29.5.1985 at 10 AM and met the deceased and for some time, there was altercation between deceased and appellants and, thereafter, he, deceased and appellants left Jamui for their village which he has again repeated in para-27 of his deposition and in para-48, he has clearly stated that entire occurrence took place on 29.5.1985. In spite of his repeatedly saying that occurrence took place on 29.5.1985, the Court below on this point has observed that because examination of informant as a witness in Court was held on 21.5.2001 that is after sixteen years of occurrence and as such inadvertently, he might have given the date of occurrence as 29.5.1985. It further observed that PW 2, in para-10 of his evidence, has said that on 29.5.1985, he alongwith informant and Nandlal (PW 3) had come to Jamui in search of deceased Madan Yadav and evidence of informant in paras-22 to 24 also supports the aforesaid fact, therefore, it might be possible that informant might have mentioned the date of occurrence as 29.5.1985 because he was deposing after sixteen years from the date of occurrence. This reasoning of the Court below does not appear to be convincing considering the fact that no doubt Sudama Yadav (PW 2) has stated that occurrence took place on 1.6.1985 but at the same time, he has also stated that on 29.5.1985, he alongwith informant and others had come to Jamui for obtaining papers in the title suit and in para-10 of his evidence, he has said that on 29.5.1985 and 30.5.1985, they made search for deceased who was not found and they met him on 1.6.1985 at about 7.30 AM at bus stand. Evidence of Nandlal Yadav (PW 3) is that on a Saturday, he, informant and Uchit Yadav had come to Jamui in search of Madan Yadav and on the same day, they met deceased and, thereafter, at about 10 O''clock, they started for their village. Like PW 2, he does not say that two days prior to 1.6.1985, he and others had come to Jamui in search of deceased Madan Yadav. Similar is the evidence of Uchit Yadav (PW 4) on this point who has also said that he alongwith informant Nandlal and Sudama had come to Jamui on Saturday which was, admittedly, 1.6.1985 and he says that on the same date, he met deceased because 1.6.1985 was the date fixed in a case and after completing the work, he and his companions left Jamui for their village. From the evidence of all these witnesses, it is not proved conclusively that on which date, they came to Jamui and when they met deceased. In first information report, informant stated that in the morning of 1.6.1985, he alongwith Sudama Yadav, Nandlal Yadav and Uchit Yadav came to Jamui from his village to meet deceased who had already come to Jamui on 29.5.1985. Against this, the evidence of P.W.2 is that he, informant and others had come to Jamui on 29.5.1985 and met deceased on 1.6.1985. Evidence of PW 3 is that on 1.6.1985, they came to Jamui and on the same day, they left Jamui for their village at about 10 AM. Uchit Yadav (PW 4) has also stated that on 1.6.1985, he alongwith informant and others had come to Jamui and after completing work in Court, they returned back to their village. The informant, in his evidence, has said that they all were returning on 29.5.1985 when the occurrence took place.

The record of Court below shows that case of prosecution was closed on 20.2.1994 and 27.2.1994 was fixed for. examination of appellants and other co-accused persons u/s 313 of Criminal Procedure Code (In short "Cr PC") and on that date, such examination was held. Thereafter, on a petition filed by prosecution u/s 311 of Cr PC, the prayer of prosecution for examining informant was allowed who was examined on 31.5.2001 and, thereafter, again examination of appellants and other co-accused persons u/s 313 of Cr PC was recorded on 19.6.2001. In the examination of appellants and other co-accused persons u/s 313 of Cr PC on 27.2.2001, appellants and other co-accused persons were asked to give reply to the evidence of witnesses that they committed murder of deceased on 1.6.1985 at about 1.30 PM. On 19.6.2001, appellants and other co-accused persons were asked to give reply to the evidence of informant that they on 29.5.1985 committed the murder of deceased but this time, in this question, no place of occurrence was disclosed as was disclosed in the earlier examination u/s 313 of Cr PC. Had the Court below not reexamined the appellants and other co-accused persons u/s 313 of Cr PC after recording evidence of informant, the matter would have been different but when it thought necessary to reexamine the appellants and other co-accused persons u/s 313 of Cr PC after recording the evidence of informant, the question arises which of the examination of appellants u/s 313 of Cr PC has to be taken into consideration because both the examinations cannot go together because they are giving different date of occurrence. The purpose of examining an accused u/s 313 of Cr PC is clearly laid down in Section 313 of Cr PC which is "enabling the accused personally to explain any circumstances appearing in the evidence against him." Section 313(b) of Cr PC makes examination of an accused after the close of case of prosecution mandatory. I, therefore, find that it caused prejudice to defence when in the later examination of appellants u/s 313 of Cr PC, a different date of occurrence than mentioned in the charge framed against them was put.

In this case, Investigating Officer has not been examined and prosecution has brought on record different paragraphs of case diary proved by Raj Kumar Singh (PW 5). During trial, the defence has drawn the attention of Sudama Yadav (PW 2) that he had not deposed during investigation that appellants all of a sudden surrounded deceased and appellant Prasadi Yadav, Suraj Yadav and Kesho Yadav fired on him. Attention of Nandlal Yadav has also been drawn that he had not stated during investigation that appellants surrounded deceased and his companions and appellants Suraj, Prasadi and Kesho fired on deceased from their revolvers. Attention of Uchit Yadav (PW 4) has also been drawn that he had not stated before Investigating Officer that appellants and their companions all of a sudden surrounded deceased and others and, thereafter, appellants Prasadi Yadav, Suraj Yadav and Kesho Yadav fired with their pistols on deceased. The Court below on the point of contradiction in the evidence of prosecution witnesses and their previous statements has observed that though attention of PWs 2 to 4 has been drawn towards contradiction in their evidence and their previous statements and defence has been denied opportunity to examine the Investigating Officer due to his non-examination but according to it, Exhibits-3 and 3/1 show that statements of PWs 2 to 4 were recorded in paras-7 to 9 of case diary where it is stated that they supported the first information report. The Court below has further observed that "no doubt the Investigating Officer ought to have recorded the detailed statements of PWs 2 to 4 but due to laches on the part of Investigating Officer, whole evidence of PWs 2 to 4 cannot be allowed to be thrown in dust bin especially when it is written in the case diary that they have supported the first information report in which detailed description of occurrence is mentioned." On this basis, it has observed that defence has not been prejudiced due to non-examination of Investigating Officer so as to go into the root of the case. When the prosecution itself has brought the case diary on record which shows that vague statements of PWs 2 to 4 have been recorded in paras-7 to 9 of case diary that they supported the first information report, I find that such statement cannot be construed to be with all the details of statement made in first information report by informant. The Court below itself has accepted that manner in which statements of aforesaid witnesses have been shown to be recorded amounts to laches on the part of Investigating Officer.

Considering the entire evidence on record, I find that in the present case not an independent witness has been examined and all the prosecution witnesses including informant who have deposed on the point of occurrence are not only closely related to each other but they are on inimical terms with appellants with whom they have series of litigation and in one case, they were sentenced to rigorous imprisonment for life. Besides this, there is contradiction in their evidence on the point of date of occurrence.

The prosecution witnesses have admitted that deceased was involved in a number of cases. The case of defence is that deceased might have been murdered by someone else and for the reason of enmity, appellants have been falsely implicated in this case. Notwithstanding this defence, as stated above I find that the evidence of prosecution witnesses who have deposed on the point of occurrence is not consistent and for the reason of contradiction in their evidence, their being on inimical terms seriously with appellants, their being closely related to each other, and for contradiction in their evidence and their previous statements, they are not trustworthy. I, therefore, find and hold that in this case prosecution has not been able to prove the charges against appellants beyond all reasonable doubts.

In the result, this appeal is allowed and judgment and order of Court below convicting and sentencing the appellants is hereby set aside.

The appellants Uchit Yadav and Radhey Yadav, who are on bail are discharged from the liabilities of their bail bonds. As appellants Prasadi Yadav, Kesho Yadav and Suraj Yadav are in jail custody, they are ordered to be released at once, if not required in any other case.

Mridula Mishra, J.

I agree.