R.N.SAHAYAND and D.P.S.CHOUDHARY JJ.

1. This is an appeal under Section 378 (1) of the Code of Criminal Procedure against the judgment and order of the 4th Additional Sessions Judge, Arrah dated 1st September, 1987 in Sessins Trial No. 63/84, whereby the seven respondents in this appeal who were charged and tried for murder of Ram Ayodhya Singh were acquitted disbelieving all the eye-witnesses examined in this case.

2. Ram Ayodhya Singh was native of village Bhagwatpur P.S. Chandi in the district of Bhojpur. He was employed in a Post Office at Arrah. Ram Chhabila Singh, the prime witness and Informant of this case is own brother of Ram Ayodhya Singh but lived in a separate house. On 4-4-1983 Ram Chhabila Singh went to the house of Ram Ayodhya Singh at about 6.00 a.m. Both of them took tea and started at about 6.30 a.m. for going to Arrah. Ram Ayodhya Singh had to attend his duty at the Post Office. He had with him a cycle loaded with domestic articles. His brother Ram Chhabila Singh was going on foot. They reached the road in front of Upper Primary School, Bhagwatpur. According to the version of Ram Chhabila Singh, respondents before us came from west variously armed and they fell upon Ram Ayodhya Singh and started assaulting him with their respective weapons.

3. Respondent Sheo Kumar Singh was allegedly instigating other accused-persons to kill him Ram Chhabila Singh, managed to escape since he was free-handed. Ram Ayodhya Singh was left behind since he was carrying his bicycle. He could not run away. Ram Ayodhya Singh fell down on the road after being brutally assaulted by the accused-persons. He died on the spot.

4. Basudeo Singh, who was of the same village, was washing his hand and mouth at a hand pump near the school. He saw the entire occurrence. Ram Naresh Singh, who was easing himself in the baswain in the village saw the two brothers going towards east of the village. He too saw the respondents assaulting the deceased.

5. It appears that the deceased had purchased certain land from Janki Devi and Banarsi Devi d/o Kishundeo Singh, who was full brother of Jai Bahadur Singh. Respondents Shiwadhar Singh, Baliraj Singh, Jairam Singh and Sishupal Singh are sons of Jai Bhadur Singh. Kishundeo Singh lived jointly with these accused till his death and during his life time he had executed a Will regarding his share in the joint family property in favour of respondent Baliraj Singh. Ram Ayodhya Singh had purchased share of Kishundeo Singh after the Will, hence a dispute arose. Baliraj Singh filed, a case being Probate Case No. 38/79 for grant of probate to the Will in question.

6. According to the defence case, accused-persons-respondents have been falsely implicated on account of prevailing enmity. According to the defence, Ram Ayodhya Singh was murdered not in the morning but some time in the night by some of his enemies. Respondent Sheo Kumar Singh and his son Surendra Singh had no concern with the remaining accused. This fact is admitted by the Informant and other witnesses. Sheo Kumar Singh was doing pairvi on behalf of other accused-persons. Specific defence of Sheo Kumar Singh is that he was a teacher of Akhagaon Middle School and was present there from 7.00 a.m. to 11.30 a.m. Teachers Attendance Register was produced in support of his defence. Surendra Singhs plea was that he was working on his thrasher at the mill of Gobardhan close to the place of occurrence. He was arrested while he was working there at 3.00 p.m.

7. Learned Additional Sessions Judge on evaluation of the evidence of the eye-witnesses did not accept the prosecution case for the following reasons :

(i) According to the medical evidence all the injuries found on the person of the deceased had been caused by hard and blunt substance whereas according to the eye-witnesses the deceased had been assaulted with farsa, tangi, bhala etc. The Informant changed his version in Court and stated that the accused-persons had assaulted the deceased Ram Ayodhya