Veveka Nand Mehta @ Viveka Nand Mehta and ors. Vs. the State of Bihar - Court Judgment

Excerpt:
indian penal code, 1860-section 302/34-murder-common intention-prosecution story not looking credible-pws appearing to be hearsay witnesses-fardbeyan giving indication that related witnesses were called by informant after accused persons had left scene of crime-medical evidence not consistent with prosecution story-co-villagers not examined by prosecution-prosecution depending only upon testimony of related witnesses-chances of false implication of appellants looking highly probable-prosecution case not established beyond all reasonable doubts-benefit of doubt extended to appellants. - - he is clearly a hearsay witness. 7. during cross examination of the aforesaid witnesses and the informant as well as from the deposition of the police officials it has come on record that there are several houses of other villagers located near the place of occurrence and six such co-villagers are cited in the chargesheet as witnesses, namely, kokal mukhiya, shivnandan yadav, raj kishore mandal, bindeshwari ram, basudeo yadav and jagdish mandal but none of them have been examined in course of trial. he has claimed that he remained inside the mill and saw the occurrence and identified the accused persons present outside the mill through a hole in the wall of the mill made of 'tat'.in the dark night of the aforesaid situation it is not found safe to rely upon the solitary eye-witness' account of the informant for purposes of identification of accused persons. it is highly doubtful that he could have seen the occurrence clearly in dark hours of night through a hole from inside the mill. 4-5 persons got over the body of the deceased to over power him and in that situation a weapon like spade was used to cause cut injury on the neck. 1, 2 and 3 that they saw the accused persons and identified them while they were fleeing away is not safe to be accepted. shiva kirti singh and subash chandra jha, jj.1. all the three appeals have been heard together because they arise out of same impugned judgment and are, therefore, being disposed of by this common judgment. the sole appellant of cr. appeal no. 680 of 2002 veveka nand mehta @ viveka nand mehta and the three appellants of cr. appeal no. 684 of 2002, namely, raso sah, siya ram mehta and butan mehta, have been convicted for the offence under section 302 read with section 34 of the indian penal code and sentenced to undergo rigorous imprisonment for life; whereas the same sentence has been awarded to sole appellant of cr. appeal no. 744 of 2002, shiv narain mehta @ shib narayan mehta but for offence under section 302 i.p.c. only, the impugned judgment dated 27th september, 2002, has been passed by learned 1st additional sessions judge, madhepura, in sessions case no. 75 of 2001 whereby all the five appellants have been convicted, as noticed above, and by the impugned order dated 30th september, 2002 they have been sentenced to undergo rigorous imprisonment for life.2. the prosecution case based upon fardbeyan of umesh kumar mehta (p.w.6) recorded at village patni, p.s. bihariganj, district madhepura, near the body of the deceased on 29.6.2000 at 7 a.m. is, in brief, to the effect that in the night of 28.6.2000 the informant and his brother ganesh mehta (deceased) had taken their food and the deceased had slept on a cot outside his mill; whereas the informant slept inside the mill. at about 1 in the night the informant heard some sound and woke up. he saw 4-5 persons, out of whom the accused appellant shiv narain mehta spoke that the persons sleeping was ganesh and other accused persons, namely, siyaram mehta, butan mehta, dayanand mehta (not put up for trial), viveka mehta and raso sah climbed on the body of ganesh mehta and caught him. thereafter shiv narain mehta who had a sharp weapon (spade) in his hands gave one blow on the neck of ganesh mehta. accused appellant siyaram mehta and butan mehta loudly declared that in the same way they would kill the brother of the deceased also and hence the informant, out of fear did not come out of the mill but recognized all the accused persons through the temporary enclosure made of 'tat'. the accused persons fled away towards west. then the informant got up and went to his house, called his sala pankaj mehta (p.w.2) and also called villagers kamleshwari mehta (p.w.1) and widow of the deceased bijoya devi (p.w.3). on coming they saw the occurrence and heard about it and also saw the accused persons running away towards west and identified them. the reason for the occurrence was alleged enmity between accused appellant shiv narain mehta and the deceased for the reason that son of shiv narain mehta was married at purnea due to mediation and efforts of deceased ganesh mehta but the daughter-in-law of shiv narain mehta had been left by her husband leading to a litigation in which the deceased had been doing pairvi from the side of the girl and on that account in the past accused appellant shiv narain mehta had given threats.3. it appears that after recording the fardbeyan, the sub inspector of police prithwi sen das (p.w.8) conducted investigation at the initial stage. he has proved the fardbeyan as ext.5, the formal f.i.r. as ext.6, prepared inquest report (ext.7), inspected the place of occurrence and allegedly seized blood soaked soil from under the cot on which the deceased was found lying infront of his mill. he has claimed to have recorded the statements of immediate neighbour kokal mukhiya and some other chargesheet witnesses such as shivnandan yadav and raj kishore mandal etc. ultimately the investigation was taken over by another police official, asi janeshwar pandey (p.w.7) on 2.9.2000. thereafter he recorded the statements of p.w.1, p.w.2 and p.w.3 and submitted chargesheet against the accused appellants but investigation in respect of co-accused dayanand mehta was kept pending.4. after cognizance the case was committed to the court of sessions where charges were framed against the accused appellants to which they pleaded not guilty and were put on trial. they have been convicted and sentenced by the impugned judgment and order already noticed above. the defence of the accused persons in general is denial of their involvement in the murder of the deceased and false implication on account of enmity and suspicion. from the trend of cross examination and argument it appears that the accused persons have taken the defence that the occurrence took place in the dark hours of night when the deceased was sleeping all alone at the place of occurrence and since there was no means of identification and no body had seen the occurrence, subsequently the brother-in-law of the deceased (p.w.2) pankaj mehta was called from his house of his village which is at a distance of only 1 or 1-1/2 kms. he went to inform the police on basis whereof p.w.8 admittedly lodged a sanha at 6.15 a.m. on 29.6.2000 and came to the place of occurrence and then the fardbeyan was lodged implicating persons against whom there was suspicion on account of perception of enmity. specific defence of alibi has also been taken on behalf of accused appellant butan mehta. in support whereof his maternal uncle awadh narain singh has deposed as d.w.1. d.w.2 anant jha has claimed to be a priest practising astrology also and on the basis of 'panchang' he has claimed that the date of occurrence 28.6.2000 was 11th day of krishna paksh and on that date moon would be visible only after six minutes past 3 o'clock in the night.5. the prosecution in order to prove its case has examined nine witnesses in total, p.w.1 kamleshwari mehta is a cousin of the informant, p.w.2 pankaj mehta is brother-in-law of the deceased, p.w.3 bijoya devi is widow of the deceased, p.w.5 ramesh mehta is another brother of the deceased. p.w.4 dr. sanjiv kumar held autopsy on the dead body of the deceased and has proved the post mortem report as ext.2. the same shows that the deceased had received sharp cut injury on the neck of the size 5-1/2' x 2-1/2' x bone deep caused by sharp weapon. p.w.6 umesh kumar mehta, a brother of the deceased, is informant of this case, p.w.7 asi janeshwar pandey is the investigating officer who completed investigation and submitted chargesheet; whereas p.w.8 sub inspector of police prithwi sen das is the first investigating officer, p.w.9 shankar pd. singh is a formal witness who has proved the station diary entry no. 470 dated 29.6.2000 as ext.9. one court witness sheodayal sah is formal in nature who has proved a communication from the police authorities to the court as ext.b. vide ext.b the court was informed that chargesheet against the accused appellant viveka mahto had been submitted by the i.o. due to mistake.6. although in court p.ws. 1, 2 and 3 have claimed to have identified the accused persons in the night time while they were fleeing away from the place of occurrence, they have admittedly not seen the actual occurrence, p.w.5 ramesh mehta, another brother of the informant, has claimed that he came to the village after hearing the news of the offence. he is clearly a hearsay witness. the informant umesh kumar mehta has been examined as the sole eye-witness of the alleged occurrence. even in the f.i.r. he has claimed to be an eye-witness, although in the f.i.r. he disclosed no source of light which could be the means for identifying a number of accused persons named by him. p.ws. 1, 2 and 3 are named in the fardbeyan as the persons who were called by the informant after the accused persons had fled away and he could muster courage to go to his residential house. from the evidence of these witnesses it has transpired that the house of the deceased is to east of the place of occurrence whereas the accused persons fled away towards west. the fardbeyan mentions no source of light and even if these witnesses had rushed to the place of occurrence on hearing hulla without wasting any time and without waiting for arrival of the informant who claims that he went to his house after the occurrence to call the witnesses, these witnesses could not have come across the fleeing accused persons who were admittedly fleeing away in the other direction, i.e., west of the place of occurrence. although p.w.1 has claimed that he was working in a field and running a dumping set to irrigate his field at 1 o'clock in the night, he has admitted that he cannot give the plot number etc. of his land where he was present for irrigation. he has given distance of his land from the place of occurrence as 2-3 jarib which would be approximately 200 feet and that field was on north-west of place of occurrence. he claimed that he took two minutes in reaching place of occurrence after hearing hulla. he has also admitted that he has never produced his torch before the investigating officer.7. during cross examination of the aforesaid witnesses and the informant as well as from the deposition of the police officials it has come on record that there are several houses of other villagers located near the place of occurrence and six such co-villagers are cited in the chargesheet as witnesses, namely, kokal mukhiya, shivnandan yadav, raj kishore mandal, bindeshwari ram, basudeo yadav and jagdish mandal but none of them have been examined in course of trial. as noticed earlier, the non-official witnesses examined during trial, namely, p.ws. 1, 2, 3, 5 and 6 who is informant, are all relations of the deceased and on close and careful scrutiny of evidence of p.ws. 1, 2 and 3 it is found that their claim of having come on hulla and identified the accused persons from the back in the torch light or in the moon light, as claimed by p.ws. 2 and 3, is difficult to be accepted. the fardbeyan gives sufficient indication of the fact that these related witnesses were called by the informant after the accused persons had left the scene of crime. according to informant he was terrified and he did not expose himself to the accused persons out of fear and when they had fled away, he went to his house and called these witnesses and informed them about the occurrence. no doubt, it has further been claimed in the fardbeyan that these witnesses came and saw the accused persons while fleeing away but that part of the prosecution case is found to be doubtful and not acceptable.8. now it remains to be seen whether on the basis of evidence of the informant alone wherein he has claimed to have seen the entire occurrence and to have identified all the accused persons, the charges against the accused appellants can be believed and finding of guilt can be recorded without any reasonable doubt or not. in this context, learned counsel for the appellants has rightly pointed out that the night of occurrence was a dark night without moon at 1 o'clock and the informant has not claimed that there was any other source of light or that he used the torch available with him for identifying the accused persons, according to version of the informant he had been inside the mill and did not come out to help his brother (deceased) because of fear created due to utterance that the accused persons were looking for him also and in such circumstances he cannot be expected to disclose his presence by flashing his torch. on a careful perusal of the evidence of the informant it is found that he has not claimed that he flashed his torch to identify the accused persons. he has claimed that he remained inside the mill and saw the occurrence and identified the accused persons present outside the mill through a hole in the wall of the mill made of 'tat'. in the dark night of the aforesaid situation it is not found safe to rely upon the solitary eye-witness' account of the informant for purposes of identification of accused persons. it is highly doubtful that he could have seen the occurrence clearly in dark hours of night through a hole from inside the mill. he is a relation of the deceased and if he could not identify the assailants, there is every chance of implicating those persons with whom the deceased may be having some differences in the past only on account of suspicion.9. it is useful to refer here the fact that the investigating officer who inspected the place of occurrence in the morning did not find any chowki or cot inside the mill nor he has found any bedding kept inside the mill to corroborate the informant's claim that he was sleeping inside the mill on the fateful night. it also does not appear natural that in a summer night the deceased will sleep outside the mill on a cot all by himself and his brother, the informant, would unnaturally choose to sleep inside the mill and face the summer weather and that too without any bedding etc. no witness has claimed that there was any electricity available in the village on the fateful night. in such a situation, not only the claim of identification of the informant appears doubtful but his presence at the alleged place of occurrence also appears doubtful. another circumstance which creates some doubt is the alleged manner of occurrence given out by the informant. according to him. 4-5 persons got over the body of the deceased to over power him and in that situation a weapon like spade was used to cause cut injury on the neck. if the occurrence had taken place in the manner suggested by the informant, there would have been shout and cry of the deceased before he could be over powered by the assailants and further it would have been very difficult to aim at the neck and cause a blow with a spade without the risk of causing injury to persons holding the deceased on cot.10. although before close of prosecution evidence, on 4.6.2002 the prosecution had filed a petition to explain the non-examination of several co-villagers cited as chargesheet witnesses on the around that they have been gained over but none of the prosecution witnesses has deposed that the witnesses have been pained over. hence in order to be fair the prosecution should have tendered those witnesses or should have examined them and declared them hostile if they decided to contradict their statements made during investigation. instead of choosing that course of action the prosecution has decided to depend only upon the testimony of relation witnesses discussed earlier.11. on a careful consideration of the aforesaid materials and all the relevant facts, circumstances and depositions, we are of the considered view that the prosecution case has not been established beyond reasonable doubts by the sole eye-witness's account of p.w.6, the informant and the claim of p.ws. 1, 2 and 3 that they saw the accused persons and identified them while they were fleeing away is not safe to be accepted. in such circumstances, we are constrained to extend benefit of doubt to the accused appellants. they are, accordingly, acquitted of the charges and the three appeals stand allowed. it appears that appellant shiv narain mehta @ shib narayan mehta is in jail custody. he is directed to be released forthwith if not required in any other case. the other four appellants, namely. veveka nand mehta @ viveka nand mehta, raso sah, siva ram mehta and butan mehta, shall stand discharged from the liabilities of their bail bonds.

Judgment:

Shiva Kirti Singh and Subash Chandra Jha, JJ.

1. All the three appeals have been heard together because they arise out of same impugned judgment and are, therefore, being disposed of by this common judgment. The sole appellant of Cr. Appeal No. 680 of 2002 Veveka Nand Mehta @ Viveka Nand Mehta and the three appellants of Cr. Appeal No. 684 of 2002, namely, Raso Sah, Siya Ram Mehta and Butan Mehta, have been convicted for the offence under Section 302 read with Section 34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life; whereas the same sentence has been awarded to sole appellant of Cr. Appeal No. 744 of 2002, Shiv Narain Mehta @ Shib Narayan Mehta but for offence under Section 302 I.P.C. only, The impugned judgment dated 27th September, 2002, has been passed by learned 1st Additional Sessions Judge, Madhepura, in Sessions case No. 75 of 2001 whereby all the five appellants have been convicted, as noticed above, and by the impugned order dated 30th September, 2002 they have been sentenced to undergo rigorous imprisonment for life.

2. The prosecution case based upon fardbeyan of Umesh Kumar Mehta (P.W.6) recorded at village Patni, P.S. Bihariganj, district Madhepura, near the body of the deceased on 29.6.2000 at 7 A.M. is, in brief, to the effect that in the night of 28.6.2000 the informant and his brother Ganesh Mehta (deceased) had taken their food and the deceased had slept on a cot outside his mill; whereas the informant slept inside the mill. At about 1 in the night the informant heard some sound and woke up. He saw 4-5 persons, out of whom the accused appellant Shiv Narain Mehta spoke that the persons sleeping was Ganesh and other accused persons, namely, Siyaram Mehta, Butan Mehta, Dayanand Mehta (not put up for trial), Viveka Mehta and Raso Sah climbed on the body of Ganesh Mehta and caught him. Thereafter Shiv Narain Mehta who had a sharp weapon (spade) in his hands gave one blow on the neck of Ganesh Mehta. Accused appellant Siyaram Mehta and Butan Mehta loudly declared that in the same way they would kill the brother of the deceased also and hence the informant, out of fear did not come out of the mill but recognized all the accused persons through the temporary enclosure made of 'tat'. The accused persons fled away towards west. Then the informant got up and went to his house, called his sala Pankaj Mehta (P.W.2) and also called villagers Kamleshwari Mehta (P.W.1) and widow of the deceased Bijoya Devi (P.W.3). On coming they saw the occurrence and heard about it and also saw the accused persons running away towards west and identified them. The reason for the occurrence was alleged enmity between accused appellant Shiv Narain Mehta and the deceased for the reason that son of Shiv Narain Mehta was married at Purnea due to mediation and efforts of deceased Ganesh Mehta but the daughter-in-law of Shiv Narain Mehta had been left by her husband leading to a litigation in which the deceased had been doing pairvi from the side of the girl and on that account in the past accused appellant Shiv Narain Mehta had given threats.

3. It appears that after recording the fardbeyan, the Sub Inspector of Police Prithwi Sen Das (P.W.8) conducted investigation at the initial stage. He has proved the fardbeyan as Ext.5, the formal F.I.R. as Ext.6, prepared inquest report (Ext.7), inspected the place of occurrence and allegedly seized blood soaked soil from under the cot on which the deceased was found lying infront of his mill. He has claimed to have recorded the statements of immediate neighbour Kokal Mukhiya and some other chargesheet witnesses such as Shivnandan Yadav and Raj Kishore Mandal etc. Ultimately the investigation was taken over by another police official, ASI Janeshwar Pandey (P.W.7) on 2.9.2000. Thereafter he recorded the statements of P.W.1, P.W.2 and P.W.3 and submitted chargesheet against the accused appellants but investigation in respect of co-accused Dayanand Mehta was kept pending.

4. After cognizance the case was committed to the court of sessions where charges were framed against the accused appellants to which they pleaded not guilty and were put on trial. They have been convicted and sentenced by the impugned judgment and order already noticed above. The defence of the accused persons in general is denial of their involvement in the murder of the deceased and false implication on account of enmity and suspicion. From the trend of cross examination and argument it appears that the accused persons have taken the defence that the occurrence took place in the dark hours of night when the deceased was sleeping all alone at the place of occurrence and since there was no means of identification and no body had seen the occurrence, subsequently the brother-in-law of the deceased (P.W.2) Pankaj Mehta was called from his house of his village which is at a distance of only 1 or 1-1/2 kms. He went to inform the police on basis whereof P.W.8 admittedly lodged a sanha at 6.15 A.M. on 29.6.2000 and came to the place of occurrence and then the fardbeyan was lodged implicating persons against whom there was suspicion on account of perception of enmity. Specific defence of alibi has also been taken on behalf of accused appellant Butan Mehta. In support whereof his maternal uncle Awadh Narain Singh has deposed as D.W.1. D.W.2 Anant Jha has claimed to be a priest practising astrology also and on the basis of 'panchang' he has claimed that the date of occurrence 28.6.2000 was 11th day of Krishna Paksh and on that date moon would be visible only after six minutes past 3 O'clock in the night.

5. The prosecution in order to prove its case has examined nine witnesses in total, P.W.1 Kamleshwari Mehta is a cousin of the informant, P.W.2 Pankaj Mehta is brother-in-law of the deceased, P.W.3 Bijoya Devi is widow of the deceased, P.W.5 Ramesh Mehta is another brother of the deceased. P.W.4 Dr. Sanjiv Kumar held autopsy on the dead body of the deceased and has proved the post mortem report as Ext.2. The same shows that the deceased had received sharp cut injury on the neck of the size 5-1/2' x 2-1/2' x bone deep caused by sharp weapon. P.W.6 Umesh Kumar Mehta, a brother of the deceased, is informant of this case, P.W.7 ASI Janeshwar Pandey is the Investigating Officer who completed investigation and submitted chargesheet; whereas P.W.8 Sub Inspector of Police Prithwi Sen Das is the first Investigating Officer, P.W.9 Shankar Pd. Singh is a formal witness who has proved the station diary entry No. 470 dated 29.6.2000 as Ext.9. One court witness Sheodayal Sah is formal in nature who has proved a communication from the police authorities to the court as Ext.B. Vide Ext.B the court was informed that chargesheet against the accused appellant Viveka Mahto had been submitted by the I.O. due to mistake.

6. Although in court P.Ws. 1, 2 and 3 have claimed to have identified the accused persons in the night time while they were fleeing away from the place of occurrence, they have admittedly not seen the actual occurrence, P.W.5 Ramesh Mehta, another brother of the informant, has claimed that he came to the village after hearing the news of the offence. He is clearly a hearsay witness. The informant Umesh Kumar Mehta has been examined as the sole eye-witness of the alleged occurrence. Even in the F.I.R. he has claimed to be an eye-witness, although in the F.I.R. he disclosed no source of light which could be the means for identifying a number of accused persons named by him. P.Ws. 1, 2 and 3 are named in the fardbeyan as the persons who were called by the informant after the accused persons had fled away and he could muster courage to go to his residential house. From the evidence of these witnesses it has transpired that the house of the deceased is to east of the place of occurrence whereas the accused persons fled away towards west. The fardbeyan mentions no source of light and even if these witnesses had rushed to the place of occurrence on hearing hulla without wasting any time and without waiting for arrival of the informant who claims that he went to his house after the occurrence to call the witnesses, these witnesses could not have come across the fleeing accused persons who were admittedly fleeing away in the other direction, i.e., west of the place of occurrence. Although P.W.1 has claimed that he was working in a field and running a Dumping set to irrigate his field at 1 O'clock in the night, he has admitted that he cannot give the plot number etc. of his land where he was present for irrigation. He has given distance of his land from the place of occurrence as 2-3 jarib which would be approximately 200 feet and that field was on north-west of place of occurrence. He claimed that he took two minutes in reaching place of occurrence after hearing hulla. He has also admitted that he has never produced his torch before the investigating officer.

7. During cross examination of the aforesaid witnesses and the informant as well as from the deposition of the police officials it has come on record that there are several houses of other villagers located near the place of occurrence and six such co-villagers are cited in the chargesheet as witnesses, namely, Kokal Mukhiya, Shivnandan Yadav, Raj Kishore Mandal, Bindeshwari Ram, Basudeo Yadav and Jagdish Mandal but none of them have been examined in course of trial. As noticed earlier, the non-official witnesses examined during trial, namely, P.Ws. 1, 2, 3, 5 and 6 who is informant, are all relations of the deceased and on close and careful scrutiny of evidence of P.Ws. 1, 2 and 3 it is found that their claim of having come on hulla and identified the accused persons from the back in the torch light or in the moon light, as claimed by P.Ws. 2 and 3, is difficult to be accepted. The fardbeyan gives sufficient indication of the fact that these related witnesses were called by the informant after the accused persons had left the scene of crime. According to informant he was terrified and he did not expose himself to the accused persons out of fear and when they had fled away, he went to his house and called these witnesses and informed them about the occurrence. No doubt, it has further been claimed in the fardbeyan that these witnesses came and saw the accused persons while fleeing away but that part of the prosecution case is found to be doubtful and not acceptable.

8. Now it remains to be seen whether on the basis of evidence of the informant alone wherein he has claimed to have seen the entire occurrence and to have identified all the accused persons, the charges against the accused appellants can be believed and finding of guilt can be recorded without any reasonable doubt or not. In this context, learned Counsel for the appellants has rightly pointed out that the night of occurrence was a dark night without moon at 1 O'clock and the informant has not claimed that there was any other source of light or that he used the torch available with him for identifying the accused persons, According to version of the informant he had been inside the mill and did not come out to help his brother (deceased) because of fear created due to utterance that the accused persons were looking for him also and in such circumstances he cannot be expected to disclose his presence by flashing his torch. On a careful perusal of the evidence of the informant it is found that he has not claimed that he flashed his torch to identify the accused persons. He has claimed that he remained inside the mill and saw the occurrence and identified the accused persons present outside the mill through a hole in the wall of the mill made of 'tat'. In the dark night of the aforesaid situation it is not found safe to rely upon the solitary eye-witness' account of the informant for purposes of identification of accused persons. It is highly doubtful that he could have seen the occurrence clearly in dark hours of night through a hole from inside the mill. He is a relation of the deceased and if he could not identify the assailants, there is every chance of implicating those persons with whom the deceased may be having some differences in the past only on account of suspicion.

9. It is useful to refer here the fact that the Investigating Officer who inspected the place of occurrence in the morning did not find any chowki or cot inside the mill nor he has found any bedding kept inside the mill to corroborate the informant's claim that he was sleeping inside the mill on the fateful night. It also does not appear natural that in a summer night the deceased will sleep outside the mill on a cot all by himself and his brother, the informant, would unnaturally choose to sleep inside the mill and face the summer weather and that too without any bedding etc. No witness has claimed that there was any electricity available in the village on the fateful night. In such a situation, not only the claim of identification of the informant appears doubtful but his presence at the alleged place of occurrence also appears doubtful. Another circumstance which creates some doubt is the alleged manner of occurrence given out by the informant. According to him. 4-5 persons got over the body of the deceased to over power him and in that situation a weapon like spade was used to cause cut injury on the neck. If the occurrence had taken place in the manner suggested by the informant, there would have been shout and cry of the deceased before he could be over powered by the assailants and further it would have been very difficult to aim at the neck and cause a blow with a spade without the risk of causing injury to persons holding the deceased on cot.

10. Although before close of prosecution evidence, on 4.6.2002 the prosecution had filed a petition to explain the non-examination of several co-villagers cited as chargesheet witnesses on the around that they have been gained over but none of the prosecution witnesses has deposed that the witnesses have been pained over. Hence in order to be fair the prosecution should have tendered those witnesses or should have examined them and declared them hostile if they decided to contradict their statements made during investigation. Instead of choosing that course of action the prosecution has decided to depend only upon the testimony of relation witnesses discussed earlier.

11. On a careful consideration of the aforesaid materials and all the relevant facts, circumstances and depositions, we are of the considered view that the prosecution case has not been established beyond reasonable doubts by the sole eye-witness's account of P.W.6, the informant and the claim of P.Ws. 1, 2 and 3 that they saw the accused persons and identified them while they were fleeing away is not safe to be accepted. In such circumstances, we are constrained to extend benefit of doubt to the accused appellants. They are, accordingly, acquitted of the charges and the three appeals stand allowed. It appears that appellant Shiv Narain Mehta @ Shib Narayan Mehta is in jail custody. He is directed to be released forthwith if not required in any other case. The other four appellants, namely. Veveka Nand Mehta @ Viveka Nand Mehta, Raso Sah, Siva Ram Mehta and Butan Mehta, shall stand discharged from the liabilities of their bail bonds.