Judgment Ram Naresh Thakur, J. 1. The Death Reference under sec. 366(1) of the Code of Criminal Procedure for confirmation of the death sentence awarded to accused Murli Yadav. Naresh Yadav and Prakash Yadav and the three criminal appeals relate to the same occurrence and arise out of the same judgment. Therefore, with the consent of the parties, they have been heard together and are being disposed of by this common judgment. It may be stated that appellants Murli Yadav, Naresh Yadav and Prakash Yadav had preferred two appeals; one through lawyer and the other from jail. 2. Appellants Mudi Yadav, Naresh Yadav and Prakash Yadav have been convicted under sec. 302 of the Indian Penal Code accusing the death of Sheo Chandra Sah and each of them has been sentenced to death and the appellants Ram Bucho Yadav, Anandi Yadav, Arun Mahto, Mahabir Mahto and Balmiki Mahto have been convicted under sec. 302/ 149 of the Indian Penal Code and each of them has been sentenced to undergo rigorous imprisonment for life. All the nine appellants have further been convicted under sections 395 and 148 of the Indian Penal Code and while life imprisonment has been awarded to all of them for the conviction under sec. 395, no separate sentence has been passed under sec. 148 of the Code. Appellant Prakash Yadav has further been convicted under section 3021/109 of the Indian Penal Code but no separate sentence has been awarded under this count. The sentences have been directed to run concurrently. 3. The prosecution story, leading to the reference and the appeals, in short is that on 9th October 1984, at about 8 P.M. the deceased Sheo Chandra Sah was taking his meal on a Chowki in the verandah of his house. His brother Prakash Chandra Sah (P.W. 4) was also taking his meal at that very time just by the side of the Chowki on which the deceased was taking his meal. Jagtarini Devi (P.W. 7), who is the unfortunate widow of the deceased, was serving the meals. Geeta Devi (P. W. 2), the wife of Prakash Chandra Sah (P. W. 4) was preparing bread in the angan. A lantern was burning at the Chowki. It is said that at that very time these appellants variously armed, came there. Appellant Prakash Yadav said. Withdraw the case otherwise I shall kill you". Geeta Devi (P. W. 2), the wife of Prakash Chandra Sah (P. W. 4) was preparing bread in the angan. A lantern was burning at the Chowki. It is said that at that very time these appellants variously armed, came there. Appellant Prakash Yadav said. Withdraw the case otherwise I shall kill you". Saying this, appellants Prakash Yadav, Naresh Yadav and Murli Yadav shot at the deceased. The deceased became injured and fled away. He went near a bel tree outside his house, fell down there and subsequently died. Thereafter, the appellants entered into his house and looted away his properties as well, and then fled away with the footed properties. 4. A motive has been alleged for this occurrence. According to the prosecution case, sometime before this occurrence, another brother of the deceased was killed in which Anandi Yadav, Prakash Yadav and Murli Yadav were the accused persons and they were facing trial at the time of occurrence of this case. The appellants were asking the deceased to compromise but he did not agree to it with the result that he was also killed. 5. P.W. 8 was the Sub-Inspector of Police at the relevant time, attached to Gogri Police Station. On 9th October, 1984, he received an information that some person had been killed in village Fudkichak and on getting this Information he made a sanha entry and left for village Fudkichak which is the village of the occurrence. He reached there at about 10.30 P.M. and recorded the statement of P.W. 7 which is Exhibit 2 on the basis of which formal First Information Report was drawn up subsequently. He took up the investigation and after completing the investigation charge-sheet was submitted against these appellants. 6. In the trying court as many as eight witnesses were examined on behalf of the prosecution. The appellants denied the allegation and pleaded their innocence. 7. Learned counsel appearing for the appellants has challenged the order of conviction on the following grounds: (i) The medical evidence does not fit In with the oral evidence of the prosecution witnesses. (ii) No independent witness has been examined in the case. (iii) The prosecution has not given the correct time of the occurrence. (iv) At any rate, the informant and other witnesses could not have identified the assailants when the occurrence is alleged - to have taken place in the night. 8. (ii) No independent witness has been examined in the case. (iii) The prosecution has not given the correct time of the occurrence. (iv) At any rate, the informant and other witnesses could not have identified the assailants when the occurrence is alleged - to have taken place in the night. 8. We have heard the learned counsel for the appellants and the learned counsel for the state at length. We have also perused the entire evidence. After giving careful consideration to the entire evidence and materials on the record we find ourselves unable to agree with the learned counsel for the appellants that the prosecution has failed to prove the manner of occurrence as alleged. 9. According to the prosecution case, the, occurrence is alleged to have taken place in the night at about 8 P.M. P.W. 8 reached the spot at 10.30 P.M. and recorded the statement of P. W. 7, the informant, who is nobody else than the wife of the deceased. P.W. 4, another eyewitness, is the brother of the deceased. P.W. 2 Geeta Devi is the wife of P.W. 4. All these witnesses are eyewitnesses of the occurrence along with Ajai Kishore Sah (Po W. 1) and Munni Kumari (P.W. 5). We will discuss the evidence of P.Ws. 1 and 5 subsequently at proper place. 10. At the first instance we deal with the evidence of P.Ws. 7, 4 and 2. According to the statement of these witnesses the deceased was taking his meal in the verandah on a Chowki P.W. 4 was also taking his meal just by the side of that Chowki. The deceased got injuries on that chowki. P.W. 8 found blood on the chowki and also on the ground beneath that chowki. This objective finding of the Investigating Officer (P.W. 8) lends support to the statement of the aforesaid eye. witnesses. True it is that the blood stains which were found at the chowki or near the bel tree were not sent for chemical examination but on that ground alone the prosecution evidence cannot be thrown out in the present case. From the evidence of P. W. 8, it would appear that it was his first case for investigation and for the first time he had come to give evidence in this case. From the evidence of P. W. 8, it would appear that it was his first case for investigation and for the first time he had come to give evidence in this case. We must say that such a new officer should not have been entrusted with the investigation of a murder case. It appears that due to his Inexperience he could not send the blood stains for chemical examination. From his evidence it also appears that be committed some other mistakes, reasons for which are not far off to seek. As stated above, it was his first case for investigation. Therefore, he was quite Inexperienced to investigate the case like the present one. But for the inexperience of the Investigating Officer the prosecution case cannot suffer until and unless it is shown that real prejudice has been caused to the accused. In the present case there are natural eyewitnesses to say about the occurrence. The presence of blood is only a corroborative evidence. P.Ws. 7 and 2 being the wives of the deceased and P. W. 4 respectively, must be in the house in the night. Since it was night, the deceased and P.W. 4, in natural course of business, must be in their house. Therefore, they are the most natural witnesses. It has also come in evidence that it was a moonlight night and a lantern was burning. According to the evidence of P.W. 7 she was serving the meal and was near the deceased at the time of occurrence. The appellants are co-villagers and are known to her from before. When the deceased and his brother were taking meal there is nothing unnatural that there should be lantern burning there. It may be mentioned that in the fardbeyan itself it is mentioned that a lantern was burning. It was, therefore, the duty of the Investigating Officer to seize it and prepare a seizure list thereof. But he did not do so. However, he (P.W. 8) did not say in his evidence that he did not find any lantern there. Therefore, it was due to either ignorance or negligence or the part of the investigating Officer that the lantern could not be seized. But it cannot be said that the story of lantern has been introduced subsequently because it finds mentioned, as said above, in the fardbeyan itself. Therefore, it was due to either ignorance or negligence or the part of the investigating Officer that the lantern could not be seized. But it cannot be said that the story of lantern has been introduced subsequently because it finds mentioned, as said above, in the fardbeyan itself. Though these witnesses have been cross-examined at length, yet nothing has been elicited in their cross-examination to discredit them or to create any suspicion against their evidence. 11. Much has been argued that the evidence of these witnesses (P.Ws., 2, 4 and 7) does not fit in with the medical evidence. According to their statement at least three persons, namely, appellants Prakash Yadav, Murli Yadav and Naresh Yadav, shot fire-arm at the deceased but the doctor (P.W. 3) found only two injuries on thigh, one being the injury of entry and the other, the injury of exist; and be found a superficial injury on the chest, On this basis it has been argued that if the three appellants fired from their fire arms, more injuries should have been found on the person of the deceased. True it is that ordinarily more injuries should have been found but one has to remember that it is not essential that every shot must be effective. Many a times, many shots miss the target. Therefore, only on the ground that only one injury on thigh, being the injury of entry and exit, and one on the chest were found, the prosecution evidence cannot be disbelieved. In our opinion, the argument equally does not hold good. 12. It has been further argued that in the opinion of the doctor the injury found on the chest was caused by hard blunt substance but there is no case of the prosecution witnesses that the deceased was dealt with by any hard blunt substance. True it is that no witness has said that the deceased was given any blow by a hard blunt substance but sometimes pellets may cause injury, which may look like an injury caused by a hard blunt substance. Therefore, it will not cut at the root of the prosecution case. 13. It has also been argued that in view of the fact that injuries were found on the thigh of the deceased, he would not have been in a position to run up to the bel tree. This argument also has got no force. Therefore, it will not cut at the root of the prosecution case. 13. It has also been argued that in view of the fact that injuries were found on the thigh of the deceased, he would not have been in a position to run up to the bel tree. This argument also has got no force. Many a times, person receiving serious injuries run to some distance to save themselves. Therefore, it is not unnatural that the deceased fled away to some distance and then he fen down. The Investigating Officer has found blood near the bel tree as well. This also corroborates the evidence of the eye witnesses. 14. After analyzing the entire evidence, we find the evidence of P.Ws. 2, 4 and 7 to be quite reliable and trust worthy. 15. As regards the evidence of P. W s. 11 and 5 is concerned, it does not inspire confidence. Of course, in the fardbeyan P. W. 1 is named but he has been named there in another context. In court he has come to say that he was reading on the chowki on which the deceased was taking his meal, though he has a separate house. He has also said that he had come to take his meal as well but he was not taking meal at that time. In the fardbeyan not a word has been mentioned that P.W. 1 was reading or was sitting on the chowki at the time of the occurrence. It is not at all mentioned therein that Ajai (P.W. 1) had come to take his meal, rather in the last portion of the fardbeyan. it is mentioned that there were Prakash, Gotni Geeta Devi, Bhagita Ajai and Nawal who had seen the occurrence. Therefore, the presence of P.W. 1 at the chowki becomes very doubtful. P.W. 5 is not named at all either to have seen the occurrence or to be present in the house. 16. The witnesses have said that one of the brothers of the deceased was killed before this occurrence in which appellants Anandi, Prakash and Murli were accused. It has also come in evidence that these appellants had threatened the deceased. P. W. 7 has said that a week before this occurrence the deceased had been threatened when these appellants had been released on bail in that case. It has also come in evidence that these appellants had threatened the deceased. P. W. 7 has said that a week before this occurrence the deceased had been threatened when these appellants had been released on bail in that case. In crossexamination she has said that her husband had filed a petition at the police station and in the court about the said incident which took place about a week before. P.W. 8 has also said that prior to this occurrence the deceased had lodged a sanha against Murli Prakash and Anandi. True it is that the sanha has not been brought on the record but there is nothing to disbelieve these statements of P.Ws. 7 and 8. It is also true that the contents of a document cannot be admissible in the absence of that document but the statement of P. W. 8 as regards the fact that the deceased had lodged a sanha against these three appellants is clearly admissible and it is relevant for the purposes of this case. There is also consistent evidence that properties were looted away by the appellants. Therefore, we find and hold that the prosecution has succeeded in proving the allegations. As regards the case of individual appellants is concerned, no doubt all the appellants have been named by the eye-witnesses, P. W. 4 has stated that appellant Mahabir Mahto was a witness for the prosecution in the case in which another brother of the deceased was killed ear tier but he did not give evidence and appellant Arun Mahto is his son. He has further said that he did not remember whether appellant Bucho Yadav gave evidence in the previous murder case for the prosecution. In that view of the matter the pasticipation of appellants Mahabir Mahto, his son Arun Mahto and Bucho Yadav becomes doubtful because admittedly, though Mahabir Mahto was a witness for the prosecution in the previous murder case, he did not give evidence and, therefore, the prosecution might have some grievance against him and his son. Similar grievance also might have been against appellant Bucho Yadav. Therefore, in our opinion, appellants Mahabir Mahto, Arun Mahto and Bucho Yadav are entitled to get the benefit of doubt. Similar grievance also might have been against appellant Bucho Yadav. Therefore, in our opinion, appellants Mahabir Mahto, Arun Mahto and Bucho Yadav are entitled to get the benefit of doubt. But so far the other appellants are concerned, there is consistent evidence that they participated in the occurrence and nothing has been brought on the record to show that they have been falsely entangled in the case. 17. From the evidence it is also clear that the appellants came there having common objective to kill the deceased and to loot the properties. It has been argued by the learned counsel for the appellants that the charge under Sec. 302 or Secs. 302/149 of the Indian Penal Code is not made out on the evidence available on the record. In support of his argument he has drawn our attention to the fact that from the injuries found on the person of the deceased it cannot be said that the appellants tried to repeat the blow or tried to kill him. There is also no evidence to show that even at the bel tree, where, the deceased had fallen down the appellants tried to kill him. Therefore, according to learned counsel, at best an offence under Sec. 304 Part II of the Indian Penal Code can be said to have been made out against the appellants. No doubt, the injuries were found on the thigh and the injury on the chest was a superficial one but the consistent evidence is that three of the appellants, namely. Murli Yadav, Naresh Yadav and Prakash Yadav shot from their fire-arms. It was, therefore, simply a chance that only one shot hit the deceased and the others did not, but according to the prosecution case, which has been fully established, all these three appellants fired shots. If there would have been only one firing, there would have been some force in this argument. In the circumstances, therefore, we are unable to agree with the learned counsel for the appellants that the charge under Secs. 302/ 149 of the Indian Penal Code is not made out against the appellants. If there would have been only one firing, there would have been some force in this argument. In the circumstances, therefore, we are unable to agree with the learned counsel for the appellants that the charge under Secs. 302/ 149 of the Indian Penal Code is not made out against the appellants. However, as three persons are alleged to have fired but the injuries as found by the doctor indicate that the fatal injuries were caused by one fire, the conviction of appellants Murli Yadav, Prakash Yadav and Naresh Yadav under Sec. 302 of the Indian Penal Code cannot be sustained inasmuch as it is not clear whose firing caused the said injuries on the deceased since, from the evidence it is clear that all the appellants had come there with the common object to kill the deceased these there appellants are held guilty of an offence under Secs. 302/149 of the Indian penal Code. True it is that these three appellants were charged under Sec. 302 of the Indian Penal Code simplicitor and not under Secs. 302/149, but they can be convicted under Sections 302/149 because it has in be remembered that other appellants were charged under Sections 302/ 149; all the appellants were also charged under Sec. 148 of the Indian Penal Code and the evidence is that all the appellants went there having common object to kill the deceased. Therefore, all the appellants except appellants Mahabir Mahto, Arun Mahto and Bucho Yadav; namely, appellants Murli Yadav, Naresh Yadav, Prakash Yadav, Ram Yadav, Anandi Yadav and Balmiki Mahto are held guilty under Secs. 302/149 of the Indian Penal Code. Their conviction under Sec. 148 of the Indian Penal Code is also maintained and confirmed. The conviction of appellant Prakash Yadav under Sections 302/109, Indian Penal Code, is also maintained because there is consistent evidence that he gave the order to kill the deceased. 18. Now remains the charge under Sec. 395 of the Indian Penal Code for which also the appellants have been convicted. According to the prosecution case-itself, as soon as the appellants entered the house, the deceased was show as and after the deceased filed away the appellants went inside the house and committed theft. 18. Now remains the charge under Sec. 395 of the Indian Penal Code for which also the appellants have been convicted. According to the prosecution case-itself, as soon as the appellants entered the house, the deceased was show as and after the deceased filed away the appellants went inside the house and committed theft. From the evidence it does not appear that force was used to facilitate the offence of theft, rather it appears that the appellants came there to kill the deceased as well as to commit theft. Therefore, both the acts are quite independent to each other. In that view of the matter, it cannot be said that the assault was committed to facilitate the theft or while committing the theft and thus the charge under Sec. 395 of the Indian Penal Code is not made out against the appellants. The act of the appellants, however, certainly comes within the mischief of Sec. 380 of the Indian Penal Code. Since the participation of appellants Mahabir Mahto, Arun Mahto and Bacho Yadav has been held to be doubtful, they are given benefit of doubt in respect of this offence as well but the remaining six appellants, namely, Murli Yadav, Naresh Yadav, Prakash Yadav, Ram Yadav, Anand Yadav and Balmiki Mahto are found guilty of the charge under Sec. 380 instead of the charge under Sec.395 of the Indian Penal Code. 19. As regards sentence, in view of the discussions made above, since the charge under Sec. 302 of the Indian Penal Code simplicitor against appellants Murli Yadav, Naresh Yadav, and Prakash Yadav has not been sustained and they have been held guilty for an offence under Secs. 302/149 of the Indian Penal Code in view of the fact that three persons are alleged to have fired and it has not been established whose shot proved to be fatal, the sentence of death in respect of these appellants is not warranted. They are, therefore, sentenced to undergo rigorous imprisonment for life instead of death. The sentence of rigorous imprisonment for life in respect of the other appellants namely, Ram Yadav, Anandi Yadav and Balmiki Mahto for their conviction under Secs. 302/149 of the Indian Penal Code is maintained. They are, therefore, sentenced to undergo rigorous imprisonment for life instead of death. The sentence of rigorous imprisonment for life in respect of the other appellants namely, Ram Yadav, Anandi Yadav and Balmiki Mahto for their conviction under Secs. 302/149 of the Indian Penal Code is maintained. All these six appellants are further sentenced to undergo rigorous imprisonment for two years for their conviction under Sec. 380 of the Indian Penal Code in place of life imprisonment awarded under Sec. 395 of the Indian Penal Code. 20. With the above modifications in the order of conviction and sentence the appeals.