Judgment M. P. Varma, Abhiram Singh, JJ. 1. There are six appellants. Appellant no.6, Zakir Mian has been convicted of the charge under Sec.302 and also under Sec.307 and 148 of the Indian Penal Code (hereinafter referred to as the Code) and further under Sec.27 of the Arms Act. He has been sentenced to suffer imprisonment for life under Sec.302 of the Code and various other terms of imprisonment have been imposed under other charges, but the sentences are to run concurrently. The rest of the appellant Nos.1 to 5 have been convicted under Section ! 49 of the Code and also under Sections 307, 148/27 of the Arms Act. Under the first head they also have been sentenced to suffer imprisonment for life and various other terms of imprisonment on other heads. But in other case also the sentences are to run concurrently. 2. The occurrence took place on 24-4-1982 at about 8 p. in. in village ahraon, which falls under police station Aiyarkot in the district of Rohtas. The village is about 10 km. South of the police station. P. W.-1 Nayeemuddin ansari, the informant of the case and his brother Sarfuddin and his uncle Sattar were in a khatal which is about 600 yards away from the populated area of village. This khatal is in a lonely place. P. W.-l4 Nayeemuddin (who has been named as Nayeem Ansari) was sitting on a chair and the other two were on a cot. All of a sudden all the six appellants came over to the khatal. All of them were carrying guns. They came and cried out to kill and open fire. The case is that accused Zakir Mian shot at Sarfuddin and all others shot at Sattar. The informant Nayeem has said that he ran out of the khatal and concealed himself behind a bush which has been described as Behaya plants. 3. The story is that P. W.-6 Julekha, daughter of deceased Sattar All used to carry food for them from her house to the khatal. On that fatal night as well she was carrying the food and then she was about 200 yards away from the khatal, she heard the loud reports of firing. She went running to the khatal. She saw that accused Znkir was twisting the hands of her father Sattar by applying pressure with his leg. She protested. On that fatal night as well she was carrying the food and then she was about 200 yards away from the khatal, she heard the loud reports of firing. She went running to the khatal. She saw that accused Znkir was twisting the hands of her father Sattar by applying pressure with his leg. She protested. But since all resorted to firing the injury proved fatal and Sattar died. It has been said that by that time many persons rushed from the village and looking at them all the accused fled away. Police had also arrived. The prosecution narrates that the police and as well as the villagers gave a chase to the accused persons. In course of chase there was cross-firing. The accused persons fired at the villagers and the police also fired at the accused. But they all made good their escape. No one could be arrested there at the spot. We get from the evidence that the prosecution witnesses 1, 2, 3, 4, 5, 6, 7, 8, 9 and 1) got injuries in course of firing resorted to by the accused. 4. It is the case of the prosecution that after giving a chase to the accused, the police officer again got back to the khatal, Sattar was still hovering between life and death. Arrangements were made to remove him to hospital. But he died in the way and it appears that his dead-body was brought back to the place. 5. Police thereafter proceeded to record the fardbeyan of Nayeem, the informant P. W.-l4. He narrated about the incident, all in detail naming all the six accused, who came there, it has come in evidence in court that he had a talk with Julekha and had told her the names of the accused, who caused the death of Sarfuddin and her father Sattar. We further get from the evidence that the police was in village from before in connection with enquiry of a case against one Saguni Ahir. The police was then at the Darwaza of the Mukhia shyam Bihari Singh, who has also been examined as P. W.-l2. It was then that the police had heard the sound of firing and had rushed to khatal of Nayeem along with Mukhia. 6. The police was then at the Darwaza of the Mukhia shyam Bihari Singh, who has also been examined as P. W.-l2. It was then that the police had heard the sound of firing and had rushed to khatal of Nayeem along with Mukhia. 6. The prosecution next asserts that both Nayeem and her sister P. W.6 julekha could identify the accused in the light of the lantern burning in the verandah in the khatal. The Fardbeyan recorded by the police officer has been marked Ext.2 on the basis of which the formal F. I. R. was registered. It was found that one of the villagers, who had joined in chase was Inder Singh. It is stated that he was shot at by comeone of the accused and was killed in the chase. The police in course of investigation sent all the three dead-bodies for post-mortem examination. Injury reports of the injured villagers were prepared and they all were medically examined. After completing investigation the police finally submitted charge-sheet and the accused persons were thus, put on trial. 7. In the sessions court prosecution produced 19 witnesses in all, out of whom P. W.-6 is a doctor, who conducted the post-mortern examination over the three dead-bodies, i. e. of Sarfuddinn, Sattar and Inder Singh. The post-mortem examination was conducted on 25-4-1982. P. W.-17 is another doctor, who had examined the injuries on other victims, whose reference has been given above in the fore going paragraph. 8. The other witnesses are P. Ws.-10 and 12. P. W.-10 is one of the villagers, who had come to the khatal on hearing gun-sound and P. W.-12 is Shyam Bibari singh, Mukhia. These two persons did not join in the chase. P. W.-13 is the son of the informant. It has come in evidence that he had also come to the khatal and he is one of the attesting witnesses of the Fardbeyan. 9. P. W.-15 is the informant himself and P. W.-6 is Julekha, daughter of deceased Sattar. " 10. In appeal before us, Counsel for the accused has pointed out that the death of the three persons Sarfuddin, Sattar and Inder in the incident is not disputed and that they died on that date in the night has been corroborated and proved by the doctors evidence P. W.-16 and the post-mortem reports are Exts.5 to 5/2. " 10. In appeal before us, Counsel for the accused has pointed out that the death of the three persons Sarfuddin, Sattar and Inder in the incident is not disputed and that they died on that date in the night has been corroborated and proved by the doctors evidence P. W.-16 and the post-mortem reports are Exts.5 to 5/2. Further more, the injuries found on other villagers, as discussed above, who ran and joined in the chase are also not disputed, and this fact too has been amply proved by the doctor P. W.-17 and the injury certificates are exhibits 6 to 6/8. 11. From the evidence we get that the occurrence took place in a dark night. The khatal was about 600 yards west of the village Ahraon. Both the informant and the accused persons are of the same village. It has also come in evidence that informant Nayeern had a longstanding enmity with the accused haider Mian and his son accused Zakir. This has been said in court by the informant as well as by her sister P. W.-6 Julekha. Counsel for the respondent did not make any reference to the statements of all those P. Ws.1,2, 3, 4, 5, 7, 8, 9 and 11 in the course of argument except to the extent that they had received injuries in the chase made by them. None of these witnesses spoke about any identification. They got back to the khatal only after the accused ran away. They are not witnesses on the point of causing the death. The evidence of the two doctors were also referred to only to show that P. W.-16 the doctor had found ante-mortem injuries on the three deceased Sarfuddin, Sattar and Rajendra and the other doctor P. W.-13 had examined the injuries of those villagers, who had joined in the chase. In the given circumstances, we are left with the evidence of only the informant P. W.-14 and her sister P. W.-6, coupled with the evidence of the Investigating Officer P. W.-15. It may be again noted here that P. W.-15 had come to the village earlier and was at the place of the Mukhia (P. W.-12 ). He too had come running with the Mukhia on hearing the gun firing and ran with the villagers in chasing the accused. 12. Counsel for the appellant has confined his argument to the question of identification. He too had come running with the Mukhia on hearing the gun firing and ran with the villagers in chasing the accused. 12. Counsel for the appellant has confined his argument to the question of identification. In these circumstances, it has been urged that nobody had. seen any occurrence and that even P. W.14 the informant and her sister P. W.6 julekha did not come to court with clean hands. They falsely claim to be eyewitnesses of the occurrence and bereft of any eye-witness of the incident, it cannot be said in what manner the murder was committed. It has been argued that there is discrepancy with regard to the actual place where the dead bodies of these three deceased persons were found by the police officer P. W.15. It has also been urged that the prosecution attempted to speak about the lantern as a means of identification in the darkness of night. But the evidence with regard to it is also very much discrepant. The contention is that there is no clear and cogent evidence in proof of the fact that the lantern was in the khatal and in absence of any light even if some accused persons raided the khatal and caused the murder, there can be no conviction of the accused unless it is proved with cogent and reliable evidence that they were really culprits in commission of the crime. 13. We were first taken through the evidence of P. W.6-Julekha. It has been contended that by bringing her in court an attampt has been made to make the two ends meet, i. e. to say that a completely changed story has been weaved by the prosecution to hold that Julekha was an eye-witness to the occurrence. Various discrepancies have been pointed out to suggest that she could not have seen any occurrence. To start with, the learned Advocate, at the very outset, pointed out that though evidence has been led to show that Nayeem had a talk with her sister Julekha, who used to bring food for them and told the names of the assaillants causing the murder of her father Sattar and also his brother sarfuddin, the very fact that Nayeem had to give out the names, is indicative of the fact that she did not see the occurrence herself. It has been next con tended that according to her own admission she was at a few hundred yards away from the khatal. She ran on hearing gun fire. It has been submitted that she ran at the risk of her life when there was firing in the khatal. But even assuming that she was there and came running to the khatal, her evidence is that as soon as she arrived, she saw one of the accused naming Zakir breaking the hands of her father by applying pressure with his leg. Tho learned Advocate contends that this story has been introduced to show that she could atleast see a part of the occurrence and had the occasion to identify the accused persons. But the prosecution could not succeed in its game, as the doctor P. W.16 who performed the post-mortem examination did not find any such injury caused by twisting or turning of the hands. The evidence is specific that all the injuries on the person of Sattar were caused by fire-arm and that is also in the post-mortem report (Ext.5/1 ). The non-finding of any such injury leads to only presumption that there was no such incident and she is testifying to a wrong fact only to show that she had arrived there in the khatal to witness the occurrence. 14. We do not attach much importance to the other part of the argument advanced by the Counsel for the appellants that she being a Muslim woman living in Parda could not have gone out from her house to khatal carrying food for her father and others. But the fact remains whether she had brought any food for her father and her two brothers Nayeem and Sarfuddin, Here also the prosecution stands falsified. It could not be denied that according to the prosecution that the two deceased Sarfuddin and Sattar had not taken their meal. Julekha used to bring meal every night for them. Our attention has again been drawn to the post-mortem report marked Exts.5 and 5/1 of Sarfuddin and Sattar respectively. In both the reports we find that on conducting autopsy over the dead-bodies and opening the stomachs the doctor found 3 ounces of rice mixed with vegetables. This is positive proof of the fact that both had taken meal soon before their death. The doctor does not say in his report that digested food was found. In both the reports we find that on conducting autopsy over the dead-bodies and opening the stomachs the doctor found 3 ounces of rice mixed with vegetables. This is positive proof of the fact that both had taken meal soon before their death. The doctor does not say in his report that digested food was found. When they had eaten their food ealier, it cannot be said that the food was being brought by Julekha for them. This totally falsifies the claim of julekha as corning to the scene of occurrence carrying food for her father and for her cousin Sarfuddin and could see any part of the occurrence. 15. The learned Counsel for the Sattar Mr. Lala Kailash Bihari Prasad has submitted that Julekha was examined soon after the incident and, therefore, she must be deemed to be a reliable witness. We do not get it there is any such rule of law. Serious discrepancy has been noticed in her evidence. There is further shortcomings. The police officer generally investigate the case on the line given out by the informant and other witnesses to find out the correctness of the story and the credibility of the witnesses in tracking the criminals. If julekha at all gave out to the police, which, in fact she did not, that she was going with food lor their relations, the Investigating Officer did not speak a word iu his evidence in court that in course of search and seizure he found even a grain or morsal of food or any tiffin carrier or any ucensil suggesting the fact that she was going to the khatal with food to be served to her father and brother. This falsifies her claim of witnessing the occurrence in which her father, brother and others were killed. 16. Then there was no light, at least not sufficient light for proper identification, it was a dark night. This part of the evidence will be discussed hereafter. On these facts, we do not feel inclined to rely on her testimony. 17. We have already seen that her name does not find mentioned in the f. I. R. The F. I. R. (Ext.4) is a long drawn statement giving the details including the fact that some witnesses were injured in the chase but no mention about Julekha or twisting of the hand of deceased Sattar by any accused. 17. We have already seen that her name does not find mentioned in the f. I. R. The F. I. R. (Ext.4) is a long drawn statement giving the details including the fact that some witnesses were injured in the chase but no mention about Julekha or twisting of the hand of deceased Sattar by any accused. There is no such statement that Julekha had come with food for them. Non-finding of the name of Julekha in the F. I. R. is another circumstances to hold that she has been introduced later as a convenient witness to testify in court as eyewitness to the occurrence. 18. As discussed above, if Julekha is kept out of the scene, we are left with the lone testimony of the informant himself and we feel hastened to add here that it would be quite unsafe to rely on the statement of the informant, which also suffers from various infirmities. P. W.14 the informant has stated in the F. I. R, and as well as in the court that both Haider and his son Zakir were his sworn enemies and they raided the khatal with prime motive to commit his murder, but surprisingly this informant escaped quite unhurt. There is not even a scratch on his body. It has been said in evidence by this witness that since the accused arrived in the khatal they resorted to firing. It is said that all the six persons opened firing jointly. It has been added that when Sarfuddin attempted to run away Zakir pressed his gun on his chest and opend fire resulting in his death. Fact remains that no sooner they arrived in the khatal they all started making indiscriminate firing. It has been argued that there is evidence that Nayeem was sitting on a chair close to the cot where the other two persons sarfuddin and Sattar were sitting. If they had at all come for the purpose of committing the crime they would not have allowed Nayeem to escape and to hide behind the Behaya plants, to depose against the accused. The police officer p. W.15 does not speak about finding of a cot or a chair in the khatal. The case is that the informant was sitting on a chair. When the accused started firing he ran away and hide behind the bush. The police officer p. W.15 does not speak about finding of a cot or a chair in the khatal. The case is that the informant was sitting on a chair. When the accused started firing he ran away and hide behind the bush. Either he ran out of the khatal, no sooner he saw the accused coming and did not see the act of killing of Sattar and Sarfuddin or if he was present in the khatal he too would not have been spared. If the armed force chased the accused, they must have been ahead of all the villagers, as the story is that the police too had opened fire on the fleeing accused. The police could not have been behind the villagers. We get from the evidence that accused had also opened fire causing injuries to several villagers. But there is no injury to any police. The situation is not understandable and doubt remains if there was any attempt to chase the culprits by the police and any such encounter between the parties. 19. There is another circumstance, which leads us to hold that he is giving a false statement. The police officer P. W.15, in categorical words, has stated that as soon as he arrived in the khatal, he asked Nayeem about the incident, but he did not give out any name of accused. The police thereafter ran in the company of the villagers in chasing the accused. The police then got back. Thereafter the statement of Nayeem was recorded which has been described as Fardbeyan (Ext.2) and at this stage Nayeem started giving out the names of all the accused with full detail of the occurrence. If the names were not disclosed at the first instance, if there was no disclosure that Julekha was there coupled with the fact that the Mukhia was there, lot of suspicion arises. The police was at the house of Mukhia. The police came with the Mukhia in the khatal. But the Mukhia did not take part in the chase. The Dafadar was also there. But he too did not join in the chase. The police was at the house of Mukhia. The police came with the Mukhia in the khatal. But the Mukhia did not take part in the chase. The Dafadar was also there. But he too did not join in the chase. This is not appellant so it has been argued and rightly on behalf of the appellants, that possibility of consultation in between time of chasing and coming back of the police to the khatal, to implicate the appellants cannot be ruled out and the matter becomes clear that their names were mentioned only when the police got back after making the chase. Non-mentioning of the names at the earlier instance is strong circumstance for a court to hold that it was an after thought and more so Julekha does not figure as an eye-witness. It would be quite unsafe to hold the appellants guilty of the charges, as alleged by the prosecution. 20. The view that we have taken regarding these witnesses, does not warrant to discuss about the lantern. But here again there is a serious lacuna in the prosecution story. Apart from the discrepant evidence whether the lantern was there in the khatal or was at the outer verandah hanging on the bamboo, no lantern was seized by the police officer. We are not commenting on the lapses of the Investigating Officer for his failure in seizing the lantern. But the prosecution attampted to take a wise step, which appears to be faulty, that the lantern was produced after a year and half by the informant in court to shows that this was the lantern, which was hanging in the verandah or it was lying in the khatal. It would be difficult for any court to hold that it was the same lantern which was there in the khatal at the time of the occurrence. Introduction of the lantern after long lapse of a year and a half in court and non-seizure of the same by the police during investigation gives a gloomy picture and it weakens the prosecution story. 21. In these circumstances, while discussing the evidence of the informant we may further add here that Julekha has admitted in court that when she reached there, she found the dead-body of not only her father and brother sarfuddin, but also of Inder Singh. 21. In these circumstances, while discussing the evidence of the informant we may further add here that Julekha has admitted in court that when she reached there, she found the dead-body of not only her father and brother sarfuddin, but also of Inder Singh. Prosecution case is that Inder was killed in the encounter in the cross-firing resorted to by the accused while escaping from the place of occurrence and before there was a chase Julekha claims that she had reached the khatal. Ha 1 it been so, she could not have been the dead-body of inder Singh earlier. This is another circumstances, to indicate that not only julekha, but the informant too have serious contradictions in their stanements and they are narrating a false story. 22. In the circumstances, discussed above, we only close the chapter with regard to the finding of the dead-bodies and also of the lantern in the khatal. According to Julekha the dead-body of her father was in the eastern side of the khatal and Sarfuddin on its western side. Prosecution case is that both were found at one and the same place. But the two dead-bodies were on two different corners, went the khatal is 80 ft long. Evidence has been led to show through this witness that dead-bodies were in the Sahan, whereas the police (P. W.15)says that the dead-body of Inder was in the Ahra long away from the khatal. 23. To conclude, we feel that there is much force in the argument made on benalf of the appellants that the villagers ran crying out that there was a dacoity. Jt is quire likely as contended, that the dacoits raided the village. The villagers made an attack and they all retreated and while doing so they made indiscriminate firing, wnich caused not only injuries to several villagers, but also caused the death of the three persons and taking the advantage of the situation, the informant might have given a false story to , implicate these appellants. The appellants and the informant belong to the same village and the appellants could not have taken the risk of committing the crime without concealing their identity. In such a circumstance, we feel that the prosecution could not satisfactorily prove the factum of identification of these appellants in the crime and they must get the benefit of doubt. 24. The appellants and the informant belong to the same village and the appellants could not have taken the risk of committing the crime without concealing their identity. In such a circumstance, we feel that the prosecution could not satisfactorily prove the factum of identification of these appellants in the crime and they must get the benefit of doubt. 24. In the result, the appeal succeeds and the orders of conviction and sentence passed against these appellants are hereby set aside. Appeal allowed.