JUDGMENT Binodanand Singh, J. The Death Reference no. 7 of 1987 and Criminal Appeal No. 407/87 have been heard together, as they arise out of a common judgment dated 22.8.1987 passed by Shri C.M. Prasad, 2nd Additional Sessions Judge Begusarai in Sessions Trial No. (101/86) / (68/87). In the death reference the condemned prisoner Rampadarath Sinha has been convicted under section 302 of the Indian Penal Code (hereinafter referred to as ‘the Code’) and has been sentenced to death with a direction that he will be hanged by neck till he is dead. The trial Judge has made a reference for confirmation of sentence of death passed against the condemned prisoner by the High Court. 2. The criminal appeal aforesaid has been filed by Ram Padarath Singh, the condemned prisoner, who is appellant no. 1, Ram Subodh Singh as appellant no.2, and Bipin Kumar alias Bipin Singh as appellant no. 3, Appellant no. 1 Ram Padarath Singh has further been convicted under section 27 of the Arms Act, and has been sentenced to undergo rigorous imprisonment for four years. Further the condemned prisoner, who is appellant no. 1, namely, Ram Padarath Singh, Ram Subodh Singh (appellant no. 2) and Bipin Kumar alias Bipin Singh (appellant no. 3) have been also convicted under section 302/34 of the Code and each of them sentenced to undergo rigorous imprisonment for life on this count as well as under section 148 of the Code and sentenced to undergo rigorous imprisonment for three years each. The sentence imposed on appellant no. 2 Ram Subodh Singh and appellant no. 3 Bipin Kumar alias Bipin Singh have been ordered to run concurrently. 3. The facts giving rise to the death reference as well as the criminal appeal are that on 21.1.1986 at 1 P.M. the First Information Report (Ext. 5) was drawn up by P.W. 12 Baban Prasad Sharma, who was then posted as the Officer-in-charge at Begusarai Police Station, on the statement of P.W.7 Subhash Kumar, resident of Village Besudeopur, P.S. Muffasil, District Begusarai. The signature of the informant Subhas Kumar (P.W.7) has been marked as Ext. 2/4. A case under section 302/34 of the Code and 27 of the Arms Act, was instituted at the police station against these three appellants, accused Ramswarath Singh and Dilip Kumar, i.e., a case was registered against these appellants and two others. The signature of the informant Subhas Kumar (P.W.7) has been marked as Ext. 2/4. A case under section 302/34 of the Code and 27 of the Arms Act, was instituted at the police station against these three appellants, accused Ramswarath Singh and Dilip Kumar, i.e., a case was registered against these appellants and two others. The allegations as contained in the First Information Report (Ext. 5) are that on that very date, i.e., on 29.1.1986 at 9 A.M. while the informant (P.W.7) Subhash Kumar along with his brothers Ram Bilas Kunwar alias Baudhu Kumar (one of the deceased) and Mangal Kunwar alias Arun Kumar (the other deceased), was coming to Begusarai from their village home, accused Ram Padarath Singh (appellant no. 1), accused Ram Swarath Singh (absconding), Ram Subodh Singh (appellant no. 2), all sons of late Sukhdeo Singh, accused Dilip Kumar (absconding) and Bipin Kumar (appellant no. 3), sons of late Acche Kumar, co-villagers of the informant (P.W. 7) in the prosecution of common object, armed with pistols and Kattas, came on the bandh (embankment) in from of village Koria and started firing shots on his brother Ram Bilash Kumar alias Baudhu Kumar, First of all appellant no. 1 Ram Padarath Singh fired shot on his brother Ram Bilash Kumar, as a result of which he died. His brother Mangal Kumar shouted, ‘Bachao-Bachao’ and then accused Dilip Kumar (absconding) fired shot on his brother as a result of which Mangal Kumar because injured and fell down. Thereafter, appellant no. 2 Ram Subodh Singh accused Ram Swarath Singh alias Sogarath Singh (absconding) and appellant No. 9 Bipin Kumar murdered him by cutting with Katta. The cause of this murder was previous enmity and out of that the aforesaid accused persons in prosecution of the common object by firing shots and cutting with Katta committed murder of his two brothers. It has further been stated in the First Information Report that on hulla, Lal Kunwar alias (P.W. 11), son of late Surya Narayan Kumar, Bodh Kunwar alias Subodh Kunwar (not examined) son of Lal Kunwar, Vijay Kunwar (P.W.2), son of Balmiki Kunwar, and other persons had seen the occurrence. It is also alleged in the First Information Report that the informant (P.W.7) any how escaped. Seeing the persons coming from the village side, the accused persons fled towards Gandak river. It is also alleged in the First Information Report that the informant (P.W.7) any how escaped. Seeing the persons coming from the village side, the accused persons fled towards Gandak river. The dead bodies of his two brothers were lying at the place of occurrence. The informant (P.W.7) Subhash Kumar further charged the accused persons for committing the murder of his two brothers by firing shots and cutting with katta. In the concluding paragraph, the informant (P.W.7) stated that he got his statement read over to him in presence of his brother-in-law (sister’s husband) Radhey Shyam Singh and on finding it to be correct, he put his signature. 4. After institution of the case at the Police Station, the Officer-in-charge (P.W.12) of Begusarai Police Station himself took up investigation. He started for place of occurrence at 1.30 P.M. along with A.S.I. Binda Paswan (P.W.10), A.S.I. Ram Ekbal Ram (P.W.9) and other police officers as well as armed force and constables and reached at the place of occurrence at 3 P.M. on the date, i.e. 29.1.1986. 5. The place of occurrence was the Bandh (embankment) in part of village Koria and Haibatpur P.W. 12 the Investigating Officer, found the dead body of Arun Kumar alias Mangal Kumar towards the northern side of the Bandh. He found another dead body, which was of Baudhu Kumar alias Ram Bilash Kumar and the same was lying to the South of the aforesaid Bandh in a wheat field. Copious blood was found fallen on the ground near both the dead bodies. Under his (P.W.12) direction P.W.9 Ram Ekbal Rai, A.S.I. held inquest on the dead body of the deceased Mangal Kumar and P.W.10 Binda Paswan, A.S.I., held inquest on the dead body of Baudhu Kumar (These two deceased persons hence forth shall be referred to as Mangal Kumar and Baudhu Kumar). The carbon copy of the inquest report of Mangal Kumar prepared by P.W.9 Ram Ekbal Rai is Ext.4 and the carbon copy of the dead body chalan with respect to this deceased prepared by P.W. 10 is Ext. 3/1. The carbon copy of the inquest report of Mangal Kumar prepared by P.W.9 Ram Ekbal Rai is Ext.4 and the carbon copy of the dead body chalan with respect to this deceased prepared by P.W. 10 is Ext. 3/1. After about 15 minutes of the arrival of P.W. 12 at the place of occurrence, the Superitendent of Police and the Deputy Superitendent of Police of Begusarai had also reached and on their orders P.W. 12, the Investigating Officer, himself went to search the accused persons in the direction in which they were alleged to have escaped, but the accused persons could not be found. The wheat crops of the wheat-field in which the body of Baudhu Kumar was lying were found trampled near the dead body by the Investigating Officer. The aforesaid embankment was about 10 ft. in height. The aforesaid two dead bodies were lying at a distance of about 50 years from the other. P.W. 12, the Investigating Officer, also found an old well towards south east from the place where the dead body of Baudhu Kumar was lying at a distance of about 20 meters. There were trees around the well. Village Koria was at a distance of about 400 yards towards south from the place of occurrence and Seorhi-oridga was at a distance of about 500 yards towards west from the place of occurrence Village Basudeopur to which the informant (P.W.7), the two deceased persons and the accused persons belong was at a distance of about one Kilometer towards east, according to the Investigating Officer (P.W.12). River Burhi Gandak was at a distance of about 500 yards towards north. P.W. 12, the Investigating Officer, also prepared a rough sketch map of the place of occurrence which is Ext. 6. He (P.W.12) also seized blood stained earth from the place where the dead bodies were lying in presence of witnesses, namely Ramanuj Kumar and Balmiki Kunwar, both not examined. The two seizure lists have been marked as Exts. 7 & 7/1. The Investigating Officer (P.W.12) had himself verified the inquest reports prepared by P.W. 9 Ram Ekbal Rai and P.W. 10 Binda Paswan, which, according to P.W.12, were correct. Thereafter the Investigating Officer (P.W.12) sent the two dead bodies to Begusarai Sadar Hospital, through the constable and chaukidar, for postmortem examination. 7 & 7/1. The Investigating Officer (P.W.12) had himself verified the inquest reports prepared by P.W. 9 Ram Ekbal Rai and P.W. 10 Binda Paswan, which, according to P.W.12, were correct. Thereafter the Investigating Officer (P.W.12) sent the two dead bodies to Begusarai Sadar Hospital, through the constable and chaukidar, for postmortem examination. After that P.W.12, the Investigating Officer, examined Lal Kunwar (P.W.11), Vijoy Kunwar (P.W.2), Subodh Kunwar (not examined), Navin Rai (P.W.1), Biso Kunwar (P.W.8) and others at the place of occurrence itself. At 7:15 P.M. the Investigating Officer went to village Basudeopur and searched for the accused persons and their houses, but neither they were found nor anything incriminating was found in their houses. 6. On 30.1.1986 P.W.3 Dr. Saiyad Md. Bakar, who was then posted as the Civil Assistant Surgeon in the Sadar Hospital, Begusarai, held postmortem examination at 8 A.M. on the dead body of Mangal Kunwar and found the following ante-mortem injuries on his person : i. Incised wound size 5” x 1” x bone deep (scalp bone out) extending from right parietal to the left parietal bone. ii. Incised wound size 3” x 1” x skin deep on the right temporal bone. iii. Incised wound size 6½” x 1” x bone deep extending from right temporal frontal upto left temporal bone. iv. Incised wound size 10½” x 1½” x cutting the right mastoid bone, right maxilla and both the masal bone and the left maxilla and also the external carotid vessel and also the muscles and nerves. v. Incised wound size 3” x ½” x cutting the right angle to the left angle or the mouth including lower lip as well as the lower teeth. vi. Incised wound size 4” x 1” x deep to the bone extending from the upper end of the right mastoid bone to the left mastoid muscle just below the lower jaw cutting the right carotid vessels larynx and left carotid vessel and the adjoining muscles. vii. Fire-arm wound three inches below the right inguinal region size half centimeter in diameter with inverted and lacerated margin, i.e., wound of entry. It pierced the skin, superfiolal fassa and muscle and came out on the upper one third of the lateral aspect of the right thigh one and half inch in diameter with inverted margin, i.e., wound of exit. In the opinion of the doctor (P.W.3) injury nos. It pierced the skin, superfiolal fassa and muscle and came out on the upper one third of the lateral aspect of the right thigh one and half inch in diameter with inverted margin, i.e., wound of exit. In the opinion of the doctor (P.W.3) injury nos. i to vi were grievous in nature and caused by sharp cutting weapon such as Katta and injury no. vii was simple in nature and caused by fire-arm may be pistol. The death in his opinion had occurred due to shock and haemmorhage caused by injury nos. iv and vi. The death was within 24 hours from the time of examination. The Postmortem report is Ext. I. 7. On the same date, i.e., on 30.1.1986 at 9 A.M. P.W.4 Dr. Bhagwan Das Bhagat, who was also at that time posted as the Medical Officer in Sadar Hospital, Begusarai, held postmortem examination on the dead body of Baudhu Kunwar and found the following ante-mortem injury on the dead body of the deceased : i. One aperture on the left temporal area-size ½ c.m. in diameter, margin inverted, irregular and lacerated with blackening and scorching round the edges wound of entry. ii. another wound on the right side of the occipital bone-1” behind the right external ear wound of exit margin everted and irregular. The wound was exposed and the brain substance was visible and partly excavated size 1½ x 1” x skull cavity deep. iii. One incised wound on the vertex triangular in shape with skin and subcutaneous tissues forming one flap-size 1” x ½” x deep to the skull bone. One opening the wound no. (i), the left temporal bone was found perforated, the brain substance was lacerated and there was a clear track leading to the wound of exit which was on the right side of the occipital bone. Further there was dark and clotted blood inside the brain substance as well as in the skull cavity. On opening the wound no. (ii), dark and clotted blood was found inside the skull cavity and the track led to the wound of entry on the left temporal wall. Further there was dark and clotted blood over the skull base beneath the wound no. (iii). In the opinion of the doctor (P.W. 4), injury nos. i and ii were caused by fire-arm may be pistol whereas injury no. Further there was dark and clotted blood over the skull base beneath the wound no. (iii). In the opinion of the doctor (P.W. 4), injury nos. i and ii were caused by fire-arm may be pistol whereas injury no. (iii) was caused by sharp cutting weapon may be katta. The death in the opinion of this doctor had been caused due to shock and haemorrhage as a consequence of grievous injuries to the brain and skull bone, sufficient to cause death in the ordinary course of nature. The time elapsed since death was about 18 to 24 hours from the time of post-mortem examination. The postmortem report had been marked as Ext. 1/1. 8. After completing investigation, P.W. 12 the Investigating Officer submitted charge-sheet in the case against these appellants, accused Ram Swarath Singh alias Ram Sogarath Singh and accused Dilip Kunwar, showing accused Ram Swarath Singh as an absconder. After cognizance the case with respect to these appellants as well as accused Dilip Kunwar, who was also in custody, was committed to the court of session. From the order dated 26.3.1987 of the trial court, i.e., 2nd Additional Sessions Judge Begusarai, it appears that while the sessions case was pending for trial, accused Dilip Kunwar escaped from Begusarai District Jail on 8.3.1987. Therefore the case with respect to these appellants was split up and only these three appellants could be put on trial. All the three appellants were charged under section 302, read with section 34, of the Code for having committed the murder, along with accused Ram Swarath Singh and Dilip Kunwar, of Baudhu Kunwar and Mangal Kunwar in furtherance of their common intention. Appellant no. 2 Ram Subodh Singh and appellant no. 3 Bipin Kunwar were further charged under section 302 of the Code for having committed the murder by intentionally or knowingly causing the death of Mangal Kunwar. These three appellants were also charged under section 148 of the Code for being members of unlawful assembly and in prosecution of the common object of the unlawful assembly, namely, murder, committed, the offence of rioting with deadly weapons like pistol and Katta. Appellant no. 2 Ram Subodh Singh and appellant no. These three appellants were also charged under section 148 of the Code for being members of unlawful assembly and in prosecution of the common object of the unlawful assembly, namely, murder, committed, the offence of rioting with deadly weapons like pistol and Katta. Appellant no. 2 Ram Subodh Singh and appellant no. 3 Bipin Kunwar were further charged under section 302, read with section 149, of the Code for being members of unlawful assembly, the common object of which was to commit murder and in prosecution of the common object, some members of the said assembly committed the murder of Baudhu Kunwar. Appellant no. 1 Ram Padarah Singh was further charged under three heads-first under section 302 of the Code for having committed by intentionally or knowingly caused the death of Baudhu Kunwar, secondly under section 27 of the Arms Act, for being in unlawful possession of the fire-arm, viz. pistol with intent to use the same for unlawful purpose of causing the death of Baudhu Kunwar and Mangal Kunwar, which was carried into effect and thirdly under section 302, read with section 149, of the Code for being member of an unlawful assembly, the common object of which was to commit murder and in prosecution of the common object some members of the said assembly committed murder of Mangal Kunwar and Baudhu Kunwar. Appellants pleaded not guilty to the charges. 9. In support of its case, the prosecution examined 12 witnesses. The statement of these three appellants were recorded under section 313 of the Code of Criminal Procedure. No witness on behalf of the appellants was examined. The case of the defence, however, is that have committed no offence as alleged by the prosecution. Their further case is that they have been falsely implicated in the present case due to enmity on account of the fact that Sukhdeo Singh, who was father of the appellants Ram Padarath Singh, Ram Subodh Singh and absconding accused Ram Swarath Singh, had been murdered for which murder a sessions case was pending on the date of occurrence. In that case the informant Subhas Kunwar (P.W. 7), the two deceased persons, namely Mangal Kunwar and Baudhu Kunwar, Balmiki Kunwar and some others were accused and in that murder case appellant no. 1 Ram Padarath Singh and appellant no. 3 Bipin Kunwar were the prosecution witnesses. In that case the informant Subhas Kunwar (P.W. 7), the two deceased persons, namely Mangal Kunwar and Baudhu Kunwar, Balmiki Kunwar and some others were accused and in that murder case appellant no. 1 Ram Padarath Singh and appellant no. 3 Bipin Kunwar were the prosecution witnesses. So in order to escape the consequences of that murder case, they have been falsely implicated in the present case. 10. At the conclusion of the trial, the learned trial court rejected the defence plea and holding that the defence case of false implication was not at all believable and accepted the prosecution case. The learned trial Judge came to the conclusion that there were sufficient materials to hold that the accused persons had formed an unlawful assembly and in prosecution of the common object of which they committed the murder of the two deceased persons. Thus according to him the charges had been established against all the appellants. He, therefore, convicted the appellants and sentenced them as stated in the very beginning. 11. The learned counsel appearing for the appellants, including the condemned prisoner, has contended that the findings and conclusions of the learned trial court on the basis of which it has passed the impugned judgment and orders of conviction and sentence are quite unjustified, since they are not based on proper appreciation of evidence. According to him none of the witnesses are reliable and trustworthy and there are circumstances to indicate that the appellants have been falsely implicated in the present case. 12. On consideration of records it appears that out of the 12 witnesses examined on behalf of the prosecution, P.W. 5 Kedar Kunwar, and P.W. 6 Pramod Singh are the formal witnesses, since P.W. 5 Kedar Kunwar along with Ramanuj Kunwar (not examined) is a witness of inquest held on the dead body of Baudhu Kunwar. His signature is Ext. 2 on the inquest report (Ext. 4/1) and signature of Ramanuj Kunwar has been marked as Ext. 2/1 on the said inquest report. Like wise, P.W. 6 Pramod Singh is a witness of inquest along with Ramanresh Rai (not examined); held on the dead body of Mangal Kunwar. His signature has been marked as Ext. 2/3. A reference has already been made regarding the two doctors, namely, P.W. 3 Sayed Md. Bakar & P.W. 4 Dr. 2/1 on the said inquest report. Like wise, P.W. 6 Pramod Singh is a witness of inquest along with Ramanresh Rai (not examined); held on the dead body of Mangal Kunwar. His signature has been marked as Ext. 2/3. A reference has already been made regarding the two doctors, namely, P.W. 3 Sayed Md. Bakar & P.W. 4 Dr. Bagwan Das as also P.W. 9 Ram Ekbel Rai, P.W. 10 Binda Paswan and P.W. 12, the Investigating Officer Baban Pd. Sharma, who were the Police officers. So besides the doctors and Police officers, P.W. 1 Navin Rai, P.W. 2 Bijoy Kunwar; P.W. 7 Subhas Kunwar, the informant, P.W. 8 Biso Kunwar and P.W. 11 Lal Kunwar are the only material witnesses, who claim to be the eye witnesses of the occurrence. 13. The background in which this occurrence has taken place has also its own significance. It has been admitted by the informant Subhas Kunwar (P.W. 7) and other witnesses that Sukhdeo Singh, who was the father of appellant nos. 1 and 2 had been murdered in the Year 1980 and in that case the two deceased persons and the informant of the present case, namely, Subhash Kunwar (P.W. 7) were accused persons. He (P.W. 7) has pleaded ignorance as to whether Balmiki Giri, Ram Sewak Rai, Pathai Kunwar, Subodh Kunwar and Chandra Bhushan Rai were also accused in that case but P.W. 11 Lal Kunwar has admitted in his cross examination that in the murder case of Sukhdeo Singh, besides deceased Baudhu Kunwar, Mangal Kunwar the informant Subhash Kunwar (P.W. 7). Pathal Kunwar alias Ramanuj Kunwar, his son Subodh Kunwar and his brother Balmiki were also accused along with others on the date of recording of his evidence. He has further admitted that appellant no. 1 Ram Padarath Singh, appellant no. 3 Bipin Kunwar and absconding accused Dilip Kunwar are witnesses on behalf of the prosecution in the aforesaid murder case of Sukhdeo Singh father of appellants 1 and 2. P.W. 2 Bijoy Kunwar has also testified to this fact. It has already been pointed out that appellant no. 3 Bipin Kunwar is the brother of accused Dilip Kunwar. 3 Bipin Kunwar and absconding accused Dilip Kunwar are witnesses on behalf of the prosecution in the aforesaid murder case of Sukhdeo Singh father of appellants 1 and 2. P.W. 2 Bijoy Kunwar has also testified to this fact. It has already been pointed out that appellant no. 3 Bipin Kunwar is the brother of accused Dilip Kunwar. P.W. 7 Subhash Kunwar, being the informant, P.W. 2 Bijoy Kunwar and P.W. 11 Lal Kunwar, who claim to be the eye witnesses are named in the First Information Report but so far as P.W.2 Bijoy Kunwar is concerned, it may be stated that he is son of Balmiki Kunwar who was accused in the case of murder of Sukhdeo Singh, father of appellants 1 and 2. Thus it is, obvious that P.Ws. 2, 7 and 11 who are the eye witnesses according to the First Information Report, were practically sailing on the same boat and obviously there are reasons to conclude that these witnesses had strong enmity with the appellants. Apart from the enmity, the relationship of these witnesses has also to be taken notice of. 14. P.W.2 Bijoy Kunwar has stated in his evidence that P.W.7 Subhash Kunwar, the informant, and two deceased persons were brothers and sons of Kapildeo Kunwar. Suran Kunwar was the brother of Kapildeo Kunwar. P.W.11 Lal Kunwar is the son of Suraj Kunwar whereas P.W.2 Bijoy Kunwar is the grandson of Suraj Kunwar, i.e., son of Balmiki Kunwar, who is son of Suraj Kunwar. Therefore, all these three witnesses, including the (P.W.7) and deceased persons were very closely related. 15. Now in the background stated above; the evidence of the eye witnesses is to be scrutinized Undoubtedly from the evidence of the doctors and the allegations made by the prosecution it would appear that there has been ghastly murder of two persons but the gravity of the offence only will not be enough for fastening the liability of crime on accused. Therefore, in the back ground of the case and the relationship of the witnesses, strict scrutiny of their evidence appears to be necessary for finding out the truth. 16. Therefore, in the back ground of the case and the relationship of the witnesses, strict scrutiny of their evidence appears to be necessary for finding out the truth. 16. P.W.7 Subhash Kunwar, who is the informant of the present case and being the first person who disclosed the story as to how and at whose hands both the deceased persons met their death before the police at the earliest opportunity in his First Information Report, has come out with a story in court with respect to the assault on the deceased persons that the deceased Mangal Kunwar and Baudhu Kunwar were his full brothers Baudhu Kunwar was the eldest brother, where as Mangal Kunwar was his elder brother. At the time of occurrence, he was coming to Begusaral through Bandh (embankment) from his Village Basudeopur along with his two brothers. Both the deceased brothers of the informant were going ahead of him and when they reached near the field of Siya Ram Singh the accused persons came from the side of the Government well and they surrounded Baudhu Kunwar Appellant no.1 Ram Padarath Singh fired a pistol shot on the left temble, where upon Baudhu Kunwar proceeded south one and half steps staggering. In the meantime absconding accused Ram Swarath Singh dealt a Katta blow above the neck of Baudhu Kunwar and thereafter Baudhu Kunwar fell down in the wheat field of Siya Ram Singh towards south and died. Due to Katta blow the flesh above the neck bulged out. In the meantime Mangal Kunwar raised alarm of Bachao Bachao and fled towards south. At this accused Dilip Kunwar shot at his right thigh as a result of which Mangal Kunwar fell towards north of the Bandh staggering. After he fell down accused Ram Swarath alias Ram Sogarath Singh, Ram Subodh Singh and Bipin Kunwar dealth 5 to 6 Katta blow, on the neck and face of Mangal Kunwar. Mangal Kunwar was consequently died. He has further stated that at that time Ram Padarath Singh and Dilip Kunwar were standing there. He has further stated that the occurrence was seen by Lal Kunwar (P.W.11), Biso Kunwar (P.W.8), Subodh Kunwar (not examined), Vijoy Kunwar (P.W.2), Navin Rai (P.W.1). Mangal Kunwar was consequently died. He has further stated that at that time Ram Padarath Singh and Dilip Kunwar were standing there. He has further stated that the occurrence was seen by Lal Kunwar (P.W.11), Biso Kunwar (P.W.8), Subodh Kunwar (not examined), Vijoy Kunwar (P.W.2), Navin Rai (P.W.1). After the occurrence the informant (P.W.7) raising alarm ran towards Haibatpur and from Haibatpur went to Mohanpur and boarded a bus and went to the house of the brother in law Radhey Shyam Singh. Thereafter, he went to Moffasil police station, Begusarai, where he lodged the First Information Report (Ext.5). Thus from the story with respect to the manner of assault, which has been supported by other eye witnesses as well, has been developed in court on a very material part. In the First Information Report the part of the body, where injury was inflicted to any of the deceased persons, either by pistol shot or by Katta blow, is not mentioned. According to the First Information Report only one pistol shot was fired at Baudhu Kunwar by appellant no.1 Ram Padarath Singh. He has not stated in the First Information Report that appellant no.1 Ram Padara Singh has fired pistol shots on the left temple of his brother. On the other hand he has only stated that he fired shot on his brother Ram Bilash Kunwar alias Baudhu Kunwar as a result of which he died. Any Katta blow by accused Ram Swarath Singh above the neck of Baudhu Kunwar is conspicuously absent in the First Information Report. This story appearsto have been introduced after the police inspected the dead body of Baudhu Kunwar and held inquest over the same. Even then the story as disclosed by the informant (P.W.7) and other witnesses, namely P.Ws. 1, 2, 8 and 11 that Katta blow was given by accused Ram Swarath Singh above the neck of deceased Baudhu Kunwar due to which flesh bulged out is not supported by the medical evidence. The evidence of the doctor has already been quoted above, from which it would appear that the brain substance had come out which the witnesses subsequently thought to have happened as a result of Katta blow above the neck. Injury no.2 found on the dead body of Badhu Kunwar by P.W.4 Dr. The evidence of the doctor has already been quoted above, from which it would appear that the brain substance had come out which the witnesses subsequently thought to have happened as a result of Katta blow above the neck. Injury no.2 found on the dead body of Badhu Kunwar by P.W.4 Dr. Bhagwan Das Bhagat, indicates that the injury no.2, which was wound of exit of pistol bullet, was exposed and the brain substance was visible and partly excavated. This injury was on the right side of the occipital bone 1” behind the right external ear. So it appears that the witnesses after looking to the wound were misled to think that this wound had been caused due to Katta blow and it, therefore, appears that the story of giving a Katta blow by Ram Swarath Singh has been introduced at a later stage. On the other hand from the evidence of P.W.4 it would appear that by way of injury no.3, he found that there was one incised wound on the vertex triangular in shape with skin and subcutaneous tissues forming one flat 1” x ¾” x deep to the skull bone. So from the medical evidence it appears that there was an incised wound of the dimension as deposed by P.W.4 on the top of the head of deceased Baudhu Kunwar. This injury has not been explained by the prosecution. There is absolutely no evidence as to how this injury came to be inflicted at the top of the head of the deceased Baudhu Kunwar. 17. Likewise in the case of Mangal Kunwar, according to the prosecution evidence Mangal Kunwar ran towards west saying Bachao-Bachao and at that stage accused Dilip Kunwar fired a pistol shot on his right tigh, whereafter he fell down towards north of the Bandh and was assaulted by means of Katta by some of the accused persons. But from the evidence of the eye witnesses it would appear that the pistol shot was hit at Mangal Kunwar by accused Dilip Kunwar from behind, whereas in the First Information Report the part of the body where the pistol shot had hit Mangal Kunwar has not been described. The Medical evidence also does not support this part of the evidence of the witnesses. P.W.3 Sayed Md. Bakar held postmortem examination on the dead body of Mangal Kunwar and by way of injury no. The Medical evidence also does not support this part of the evidence of the witnesses. P.W.3 Sayed Md. Bakar held postmortem examination on the dead body of Mangal Kunwar and by way of injury no. (vii), he found fire-arm wound, 3” below the right injuinal region size ½ (half) centimeter in diameter with inverted and lacerated margin which was wound of entry. It pierced the skin, superficial fossa and muscle came out on the upper one third of the lateral aspect of the right thigh 1½” in diameter. In cross examination the doctor has stated that injury no. vii was on the front portion of the right thigh. So the medical evidence showed that the pistol shot must have been shot at Mangal Kunwar from front side and not from behind. Of course one witness has said that at the time of running way, Mangal Kunwar used to turn and see which part of the evidence does not appear to be believable since while running to save his life, one will not have the courage to turn back in order to see the assailant. 18. The aforesaid circumstances show that none of the so called eye witnesses has seen the assault on the deceased Baudhu Kunwar and Mangal Kunwar. Apart from these infirmities and subsequent development in the prosecution case, the conduct of P.W.7 the informant has also to be examined on the touch stone of probability in order to find whether he can be relied upon or not. The village Badudeopur to which village the informant (P.W.7) belongs was at a distance of 1 km. only. So the natural conduct of the informant (P.W.7) would have been that he would have at once run to his village after seeing the occurrence to inform his family members, friends and relations but instead of that he ran to village Haibatpur and went to Mohanpur where he boarded a bus for going to Begusarai. It also appears surprising that when all the three brothers, i.e., the two deceased persons and the informant (P.W.7) were coming together and were accused in the murder case of Sukhdeo Singh, how the informant (P.W.7) was spared by the accused persons and he was allowed by them to see the whole occurrence and then to run away to Haibatpur. It also appears surprising that when all the three brothers, i.e., the two deceased persons and the informant (P.W.7) were coming together and were accused in the murder case of Sukhdeo Singh, how the informant (P.W.7) was spared by the accused persons and he was allowed by them to see the whole occurrence and then to run away to Haibatpur. Of course this witness has stated in court that he was behind the two deceased persons at some distance but in the First Information Report it has not been stated so. From the reading of the First Information Report it would appear that all the three brothers were coming to Begusarai together. In order to improve the prosecution case in this regard through P.W.2 Vijoy Kunwar it has been introduced in court that Mangal Kunwar had met motor cycle accident hence he was unable to run, but this story appears to be new development in the court. Perhaps to make it probable that the informant could run away and Mangal Kunwar could not due to walking trouble. The conduct of the informant (P.W.7) after reaching Begusarai also does not appear to be quite natural. P.W.7, the informant has stated in his evidence that his eldest brother Baudhu Kunwar used to live at Begusarai along with his family members and he used to come to his village home Basudeopur after a month or two so in ordinary course it was expected that just after reaching Begusarai, the informant (P.W.7) should have run to the house of the deceased Baudhu Kunwar to inform his family members as to what had happened with deceased Baudhu Kunwar and would have disclosed the names of his killers to the family members of Baudhu Kunwar, instead of straight went to the house of his brother-in-law Radhey Shyam Singh regarding whom it has been stated by P.W.11 Lal Kunwar that he is an advocate and the sister of the informant, namely, Shanti Devi is also an advocate. So it clearly indicates that the informant at the earliest opportunity wanted to take lawyer’s advice. It would further appear that this Radhey Shyam Singh, Advocate, accompanied the informant upto Begusarai Police Station and, was present at the time of lodging of the First Information Report. So it clearly indicates that the informant at the earliest opportunity wanted to take lawyer’s advice. It would further appear that this Radhey Shyam Singh, Advocate, accompanied the informant upto Begusarai Police Station and, was present at the time of lodging of the First Information Report. In the First Information Report it has been stated, as pointed out above, that he got the First Information Report read over to him in presence of Radhey Shyam Singh, but for the reasons best known to Radhey Shyam Singh, Advocate, he had not signed the First Information Report as a witness. Here and now, it may be pointed out that Radhey Shyam Singh was a very material witness in view of the fact that he was the first person who must have known the names of the assailants from the informant (P.W.7), including the manner of occurrence, but for the reasons not on record this Radhey Shyam Singh has not been examined by the prosecution and therefore the learned counsel appearing for the appellants is justified in making a grievance that this Radhey Shyam Singh has been purposely with-held by the prosecution. In the circumstances mentioned above an adverse reference has to be drawn against the prosecution for non-examination of a material witness. 19. Regarding Shanti Devi, Advocate, the sister of the informant (P.W.7), the informant Subhash Kunwar (P.W.7) has stated that she was not at Begusarai and had gone to Patna. So her non-examination as a prosecution witness is not very material. In view of the aforesaid reasons it appears quite unsafe to rely on the testimony of P.W.7, the informant of the present case. 20. So far as the other witnesses are concerned, P.W.1 Navin Rai is not named in the First Information Report. His evidence is that on the date of occurrence at 9 A.M. after supplying milk at Koria Chowk he was returning to his home and when he reached near the field of Siya Ram Singh he saw the occurrence. Regarding the manner of assault he has supported the informant as stated by him in court, but in cross examination he has stated that he had gone to give milk to Ramji Singh. On further cross-examination he has said that he had not stated so before the Police. Regarding the manner of assault he has supported the informant as stated by him in court, but in cross examination he has stated that he had gone to give milk to Ramji Singh. On further cross-examination he has said that he had not stated so before the Police. He has further stated that empty bucket, in which he had taken the milk was with him but he did not show the milk was with him but he did not show the same to the Police. Further the story of assault given by him is not fully supported, rather at some point contradicted by the medical evidence which has already been pointed out, while dealing with the evidence of P.W.7, the informant. So far as P.W.2 Vijoy Kunwar, who is another eye witness of the occurrence, is concerned, he (P.W.2) is named in the First Information Report as an eye witness but at the same time he happens to be the son of Balmiki Giri, who is accused in the murder case of Sukhdeo Singh, father of appellant nos. 1 & 2 and absconding accused Ramswarath Singh, and is also a close relation of the informant (P.W.7), being his nephew. His evidence in court is that at the time of occurrence, he was going to Koriya chowk with milk and then he saw the occurrence. On the point of occurrence he has supported the Informant (P.W.7). In cross-examination he has stated that he was coming with milk in a milk-can of 10 ltrs. Capacity. He did not show that milk-can to the police officer, since his brother Aklu Kunwar had come to the place of occurrence and had returned the aforesaid milk-can through him to his house, but he does not say as to whether he supplied the milk to the stall at Koria Chowk or not. He has further stated that he remained at the place of occurrence till 5 P.M. without taking food. Similar is the statement of other witnesses as well except the informant who had gone to Begusarai, in this regard. His evidence regarding the manner of assault in the same manner as in the case of other eye witnesses stands contradicted by the medical evidence. 21. P.W.8 Biso Kunwar is not named in the First Information Report. Similar is the statement of other witnesses as well except the informant who had gone to Begusarai, in this regard. His evidence regarding the manner of assault in the same manner as in the case of other eye witnesses stands contradicted by the medical evidence. 21. P.W.8 Biso Kunwar is not named in the First Information Report. His evidence in court is that at 9 A.M. he was doctor from Koria-Haibatpur to his house and when he reached at the Bandh (embankment) he saw the occurrence. He has supported the informant (P.W.7) regarding the manner of occurrence like other witnesses. In cross-examination he has stated that he had gone to Koria-Haibatpur for taking medicine for himself. He was suffering from cough. The doctor did not record his name in the Register since he was not maintaining any such register. The doctor gave him medicine after taking money, but he had not given him any prescription. In these circumstances, it is difficult to believe the statement of this witness with respect to his presence at the place of occurrence when this unfortunate occurrence which culminated in the death of two brothers, took place. Besides the above reasons his evidence also stands contradicted by the medical evidence on the point of manner of assault. 22. The last witness P.W.11 Lal Kunwar who also claims to be an eye witness of the occurrence as already stated by P.W.2 brother of Balmiki Kunwar, who was accused at that time in the murder case of Sukhdeo Singh, father of appellants 1 & 2, and his two sons, namely, Ramanuj Kunwar alias Pathal Kunwar and Subodh Kunwar were also accused in that case. His evidence in court is that at the time of occurrence he was coming from Koria Chowk and thus he saw the occurrence, when he reached near the field of Siya Ram Singh. He has supported the prosecution case as stated by the informant (P.W.7) in court. This witness is also closely related with the informant, since he is son of Suraj Kunwar who was brother of Kapildeo Kunwar, father of the two deceased and the informant. So he is the first cousin of the informant and the deceased persons. He has not disclosed the purpose for which he had gone to Koria chowk. Therefore, his presence at the place of occurrence appears to be quite doubtful. 23. So he is the first cousin of the informant and the deceased persons. He has not disclosed the purpose for which he had gone to Koria chowk. Therefore, his presence at the place of occurrence appears to be quite doubtful. 23. Besides the quality of the evidence of the eye witnesses and the kind of the witnesses examined in this case, the broad probabilities of the case also cannot be lost sight of. 24. The informant Subhash Kunwar (P.W.7) has stated in the First Information Report itself that the accused persons fled away towards Gandak side after seeing the villagers coming. Most of the eye witnesses have admitted in their evidence that the villagers of village Koria and Haibatpur had arrived at the place of occurrence soon after the murders of the two deceased persons. From the evidence of the Investigating Officer (P.W.12) as well as the other witnesses, it would appear that villages Koria and Haibatpur, which are adjacent villages were at a very short distance, i.e., 400 to 500 yards east from the place of occurrence and admittedly the villagers of these villages had come after hearing the hulla but none of the villagers, either of Koria or Haibatpur or even Koria Chowk, which was at a distance of 500 yards only has been examined in order to say that the names of assailants were disclosed to them by any of the witnesses who were all along present at the place of occurrence, except the informant. The informant has stated in his evidence that he ran to village Haibatpur but he says that he did not inform anybody about this occurrence. This appears also to be quite unnatural. Apart from the villagers of these villages, it has also come in evidence that the persons of village Basudeopur had also come at the place of occurrence, but none of the villagers of even Basudeopur, who have figured as eye witnesses, has come forward even to say that they had heard the names of the accused persons, namely, the assailants of the two deceased persons at the place of occurrence. So it not a case in which no independent witness was available. Several independent witnesses would have been at least on the point of corroboration to say that they had learnt the names of the accused persons at the place of occurrence from such and such witness. So it not a case in which no independent witness was available. Several independent witnesses would have been at least on the point of corroboration to say that they had learnt the names of the accused persons at the place of occurrence from such and such witness. The prosecution has not given any explanation in this regard as well. These circumstances alone speak volume against the prosecution case. 25. Subodh Kunwar, named as a witness in the First Information Report, has also not been examined but that is not of much importance since Subodh Kunwar was also an accused in the murder case of Sukhdeo Singh. Thus his evidence also would not have been of any help to the court in arriving at the truth. The learned Counsel appearing the State, however, has cited the case of Pal Singh & others vs. State of Uttar Pradesh wherein it has been held that non-examination by presentation of certain witnesses mentioned in the first information report cause no infirmity if the evidence actually led by the prosecution is reliable and trustworthy. The principle laid down in the case of Pal Singh (Supra) has no application in the circumstances of this case, since the evidence of the eye witnesses is not being rejected solitary on the ground of non-examination of some of the witnesses named in the First Information Report. 26. Apart from this, the statement of P.W.7, the informant, is that he and his elder brother Mangal Kunwar had been asked by Baudhu Kunwar to accompany him to Begusarai but he had not disclosed the purpose for which they had to go. This also appears to be quite unnatural. 27. From the inquest report of Baudhu Kunwar it would appear that the police officer who held the inquest had found the teeth bite mark on the cheek of Baudhu Kunwar, but the doctor who held the post-mortem examination on the dead body of Baudhu Kunwar did not find any such injury. However, this discrepancy is not of much importance, but the case of the prosecution that all the three brothers were going to Begusarai appears to be suspicious in view of the fact that they had to go to Begusarai by bus but no money was found in the pocket of either of the two deceased persons. This makes the story of going to Begusarai quite suspicious. 28. This makes the story of going to Begusarai quite suspicious. 28. P.W.11 Lal Kunwar has stated in his evidence that in the year 1966 Mukhiya Bhola Rai had been murdered in which case also Baudhu Kunwar, one of the deceased was an accused. It was also asserted to him that Baudhu Kunwar was an accused in a dacoity case. Thus from the aforesaid evidence it appears that this deceased Baudhu Kunwar had other enemies at whose hands he and his brother Mangal Kunwar might have met their death. This possibility also cannot be ruled out. 29. The learned counsel appearing on behalf of the State has relied on the case of Rana Pratap and others vs. State of Haryana in support of the dictum that evidence of witnesses cannot be viewed with suspicion on the ground that they are mere chance witnesses. In my view the ratio decidendi of the aforesaid reported case cannot be applied to the case in hand since the evidence of the eye witnesses on the facts and circumstances of this case stands on a different footing and is not being projected on the ground that they were chance and partisan witnesses. Reasons for disbelieving these witnesses have been elaborately discussed above. Likewise the principle laid down in the case of State of Punjab vs. Hari Singh & another, also cannot apply on the facts and in the circumstances of this case. In the case of State of Punjab (supra) it was held that the urinate just before the murder was committed & hence the High Court was not justified in looking to the evidence of that witness with suspicion since the High Court did not make attempt to separate the chaff from the grains on the wrong assumption that the two were inseparable. Here in this case, in view of the findings that none of the eye witnesses who claim to have seen the occurrence were present at the scene of the occurrence when it had taken place for which cogent reasons have been discussed above, the observation made by the Hon’ble Supreme Court also cannot apply. 30. Here in this case, in view of the findings that none of the eye witnesses who claim to have seen the occurrence were present at the scene of the occurrence when it had taken place for which cogent reasons have been discussed above, the observation made by the Hon’ble Supreme Court also cannot apply. 30. Thus after the critical analysis of the evidence of the witnesses and the broad probabilities of the case, it will not be proper to hold that the prosecution has established the charges framed against the appellants and for the reasons mentioned above the judgment and orders of conviction and sentence passed by the learned trial court cannot be upheld. 31. In the result, Death Reference no.7 of 1987 arising out of reference made by the learned Additional Sessions Judge for confirmation of sentence of death for the offence under section 302 of the Code imposed on Ram Padarath Singh by the High Court is hereby rejected and the Cr. Appeal No. 407/87 preferred by the condemned prisoner, as appellant no.1, and other two appellants namely, Ram Subodh Singh (appellant no.2) and Bipin Kumar alias Bipin Singh (appellant no.3) is allowed. Consequently the judgment and orders of conviction and sentence passed by the trial court are hereby set aside and all the three appellants are acquitted of all the charges. The condemned prisoner Ram Padarath Singh, who as stated above is also appellant no.1 in Cr. Appeal No. 407 of 1987, and other two appellants of the said appear shall be set at liberty forthwith if not wanted otherwise. Appeal allowed. Reference discharged.