JUDGMENT

SARKARIA, J.:— By our order, dated September 1, 1976 we had allowed this appeal and acquitted the appellant. We now proceed to give our reasons in support of that order.

2-3. The facts of the case may briefly be stated thus:

The deceased Methur Dass was a night watch-man in the orchard or Mohan Lal in the area of village Phulwaria, P.S. Pipra, District Champaran. The appellant and his two brothers, Rajeshwar Pandey and Raghunath Pandey trespassed into the orchard to steel plantains. Ram Asrey Pandey was armed with a bhalla (spear) while his brothers were armed with garases. The deceased protested and thereupon the appellant assaulted him with the bhalla, while his two companions inflicted injuries on him with their respective weapons. As a result, the deceased received 12 incised wounds. The occurrence took place at about 9 p.m. or sometime thereafter in the night between the 22rd and 24th of August, 1964. During the same night he succumbed to his injuries in the early hours of 24th August, 1964 in the Chakia Dispensary. The First Information Report was lodged on the basis of a statement (Ex. 1) made by Smt. Deoiharia (PW-4) the widow of the deceased, to Matuk Narain Singh, Officer-in-charge of Police Station, Pipra at village Ghangti on August 24. 1964 when he was there to investigate a charge of theft on the basis of a First Information Report lodged by the appellant. That FIR is Ex. 2/1. Therein the appellant had charged Sukhdeo Mahto (PW-1). Jagdish Raut (PW-2) and the deceased with the theft of his patua at about 8.30. p.m.

4. After investigation five persons namely, the appellant and his said two brothers and Goburdhan and Yogendra were sent up under a charge-sheet before the Magistrate who committed them for trial to the Court of Session. The Sessions Judge acquitted Gobardhan and Yogendra, but convicted the other three. The appellant was convicted under Section 302, Penal Code and sentenced to rigorous imprisonment for life. Rajeshwar and Raghunath were convicted under Section 304 with Section 34, Penal Code and sentenced to 10 years rigorous imprisonment, each.

5. The convicts appealed to the High Court which dismissed Ram Asrey Pandeys appeal and maintained his conviction but altered the conviction of Raghunath and Rajeshwar into one under Section 324 read with Section 34, Penal Code with a sentence of one years rigorous imprisonment, each.

6. Special leave petition under Article 136 filed by Rajeshwar and Raghunath was rejected, but that of the appellant was granted by this Court. This is how Ram Asrey, appellant is now before us.

7. The conviction of the appellant rests on two types of testimony. Firstly, there is the evidence of the eye-witnesses. Sukhdeo, P.W. 1, and Jagdish. PW-2. Secondly, there is the evidence of an oral dying declaration alleged to have been made by the deceased before his family members.

8. We have examined the evidence on record and heard the Counsel on both sides. In our opinion, the evidence of both the types produced by the prosecution, was unreliable. The oral evidence rendered by the eyewitnesses was replete with material discrepancies and lies. Even the learned Judges of the High Court who have overlooked most of these faults, found that the prosecution story in regard to the genesis of the occurrence is not correct. It cannot be gainsaid that Sukhdeo (PW-1) Jagdish (PW-2) and Methur Dass. deceased had gone together to the nearby field of the accused to steal patua (cut jute), bundles of which had been kept immersed in water, there. The deceased and his companions took out one bundle from the water and started disbarking the same. Thereupon, the assailants who were lying in ambush assaulted them. On receiving the blows, the deceased fell to the ground while trying to run away from the scene of theft. Pws 1 and 2 were then marched away by the assailants and other villagers to the Darwaza of Raghunath and handed over to Krishna Deo Rai (PW-14) an Assistant Sub-Inspector of Police, the