JUDGMENT Both these appeals have been heard together with the consent of the parties, since both of them arise out of a common judgment. Mahipal Singh is the sole appellant in Cr. Appeal No. 49 of 1987, whereas these are seven appellant namely, Rajo Singh Bindeshwar Singh, Basudeo Singh, Saleshwar Singh, Ballam Singh, Biran Singh @ Raj Kumar Singh and Shiva Shankar Singh, in Cr. Appeal No. 595/86. Mahipal Singh the sole appellant of Cr. Appeal No. 49/87, has been convicted under section 302 of the Indian Penal Code (hereinafter to be referred to as the ‘Penal Code’) and has been sentenced to imprisonment for life. He has further been convicted under section 27 of the Arms Act, and has been sentenced to two years rigorous imprisonment. All the appellants of Cr. No. 595/86 have been convicted under section 302 read with section 149, of the Penal Code and each of them have been sentenced to imprisonment for life. Appellant No. 6 Biran Singh alias Raj Kumar Singh and appellant no. 7 Shiva Shankar Singh of Cr. Appeal No. 595/86 have further been convicted under section 324 of the Penal Code and each of them have been sentenced to two years rigorous imprisonment. They have also been convicted under section 27 of the Arms Act, and each of them has been sentenced to the same term of imprisonment, i.e., two years rigorous imprisonment, on this count as well. The sentences have, however, been ordered to run concurrently. 2. At this very stage it may be stated that nine accused persons were on trial, out of whom accused Umesh Singh was given benefit of doubt by the learned trial court and has been acquitted of the charges. 3. First Information Report (Ext. 3) was drawn up at Harnaut Police Station on 18.5.1977 at 6.30 p.m. by P.W. 12 Kedar Nath Tiwari, who was then posted as the Officer in-charge at Harnaut Police Station, on the statement of P.W. 9 Chamari Gope (P.W. 9 subsequently examined as P.W. 5). 3. First Information Report (Ext. 3) was drawn up at Harnaut Police Station on 18.5.1977 at 6.30 p.m. by P.W. 12 Kedar Nath Tiwari, who was then posted as the Officer in-charge at Harnaut Police Station, on the statement of P.W. 9 Chamari Gope (P.W. 9 subsequently examined as P.W. 5). The allegations as contained in the First Information Report are that at about 4 p.m. on the same date, i.e., on 18.5.1977 aforesaid Chamari Gope (P.W. 5), his uncle P.W. 6 Ghamandi Gope (subsequently examined as P.W. 4), Jawahar Gope (P.W. 1) and Shakal Gope (deceased) were washing their buffaloes in a ditch having water near the field of one Rambaran Singh in village Basti. In the meantime all the appellants and accused Umesh Singh (since acquitted) variously armed with guns, rifle, Bhala and Garassa came there and asked them to desist from washing the buffaloes and calves. The informant (P.W. 5) protested saying that they always used to wash their buffaloes in that ditch. In course of altercation, appellant no. 6 Biran Singh alias Raj Kumar Singh of Cr. Appeal No. 595/86 fired his gun hitting the informant in the right hand and chest. Appellant Mahipal Singh also fired his gun as a result of which Shakal Gope (deceased) sustained injuries on his face and chest. Appellant Shiv Shankar Singh also fired his gun, as a result of which Jawahar Gope (P.W. 1) also sustained injuries in his hand. Due to firing the people started running away. Sakal Gope died at the spot. The accused persons tried to drag and remove the dead body of Sakal Gope, but they did not succeed. Jugeshwar Gope (not examined), P.W. 2 Jagdish Mahto alias Jagdish Prasad (subsequently examined as P.W. 8 Jagat Gope (not examined), P.W. 3 Arjun Gope (subsequently examined as P.W. 6), P.W. 4 Muni Gope (subsequently examined as P.W. 3) were also present there and all witnessed the occurrence. Thereafter, the dead body of Sakal Gope was taken to Harnaut Police Station on a cot by the informant Chamari Gope (P.W. 5) along with Mahal Chaukidar Jago Gope (not examined), P.W. 6 Ghamandi Gope (subsequently examined as P.W. 6), Sarju Gope (not examined), where the First Information Report was drawn up as stated above. Thereafter, the dead body of Sakal Gope was taken to Harnaut Police Station on a cot by the informant Chamari Gope (P.W. 5) along with Mahal Chaukidar Jago Gope (not examined), P.W. 6 Ghamandi Gope (subsequently examined as P.W. 6), Sarju Gope (not examined), where the First Information Report was drawn up as stated above. Thereafter a case under section 147, 148, 149, 302 of the Penal Code and 27 of the Arms Act, was instituted against these appellants as well as accused Umesh Singh, since acquitted. 4. P.W. 12, the Officer-in-charge of Harnaut Police Station, himself took up the investigation, re-examined the informant Chamari Gope (P.W. 5) and he also found injuries on his person. Thereafter he issued injury report with respect to P.W. 5, the Informant. Similarly he also found injuries on the person P.W. 1 Jawahar Gope, issued injury report and forwarded the informant (P.W. 5) and Jawahar Gope (P.W. 1) to the local doctor, i.e., P.W. 13 Dr. Ran Vijay Prasad, then posted at the State Dispensary, Harnaut. Thereafter, they Investigating Officer (P.W. 12) held inquest on the dead body of Sakal Gope and prepared inquest report in presence of witnesses. Carbon copy of the inquest report has been marked as Ext. 5. Ext. 1/1 and 1/2 are the signatures of the witnesses on the inquest report. P.W. 12 the Investigating Officer, sent the dead body of Sakal Gope to Sadar Hospital, Biharsharif, through the constable for postmortem examination. On the same date the Investigating Officer came to village Basti at about 11 p.m. in the night but since it was night he could not take further steps in the investigation. 5. On the same date, i.e., on 18.5.1977 P.W. 13 Dr. Ran Vijay Prasad at about 9 p.m. examined the injuries on the person of Jawahr Gope (P.W. 1) and found the following injuries : i. One semi circular would about one mm. in size with swelling on the middle finger of left hand. ii. One semi circular would about one mm. in size with swelling on supine position of right hand upper portion. According to the doctor (P.W. 13) the age of the injuries was within 24 hours of the examination and the same might have been caused by a fire-arm. The injury report has been marked as Ext. 9. ii. One semi circular would about one mm. in size with swelling on supine position of right hand upper portion. According to the doctor (P.W. 13) the age of the injuries was within 24 hours of the examination and the same might have been caused by a fire-arm. The injury report has been marked as Ext. 9. On the same date at 9.50 p.m., P.W. 13 examined the informant Chamari Gope (P.W. 5) and found two semi circular wounds about one mm. in size with swelling on the left side of the chest. He also found another semi circular wound about one mm. in size with swelling on the right wrist. Age of the injuries was within 24 hours. In the opinion of the doctor, the injuries on both the injured persons might have been caused by fire-arm. The doctor, however, could not give any opinion regarding the nature of the injuries for which he directed the two witnesses to come on the next day. 6. On 19.5.1977 at 4 p.m. P.W. 9 Dr. Ved Bart, who was then posted as Civil Assistance Surgeon, Biharsharif held post-mortem examination on the dead body of Sakal Gope (deceased) and found the following injuries : i. One lacerated wound over forehead 2” x 1” with clotted blood. ii. One abrasion over right eye brow 1” x 1” iii. One punctured wound with charred and inverted margins over right side of the nose 1/6” in diameter iv. One incised wound 1” x ¼” through the whole thickness of lower lip. v. 14 punctured wound with charred and inverted margins over lower part of anterior surface of right side of the chest and upper part of right side the abdomen. vi. One abrasion 2” x 1” over upper part of anterior surface of left arm. vii. One incised wound 2” x ½” x 2” over right lumber region. On dissection the doctor (P.W. 9) found right lung punctured at several places, accumulation of blood in thoracic cavity, left lung pale, heart chambers empty, right lobe of the liver punctured at many places, accumulation of blood in abdominal cavity, stomach filled with chenarice, kidney and spleen both pale, bladder half filled with urine and ascending colour incised. He also found that rigor mortis was absent and small blisters were present over abdomen, chest wall and neck. He also found that rigor mortis was absent and small blisters were present over abdomen, chest wall and neck. In the opinion of the doctor (P.W. 9) the death had occurred due to shock and hemorrhage caused by gun shot injuries nos. iii & v. He also recovered pellets which were sent to the police in sealed cover. According to this witness time elapsed since death was between 30 to 48 hours Injury nos. iv and vii were caused by sharp weapon and injury nos. i, ii & vi were caused by hard-blunt substance. The doctor has further opined that injury nos. iv & vii may be caused by fall on sharp and edged substance. The postmortem report has been marked as Ext. 2. 7. On 19.5.1977 at 6 a.m. the Investigating Officer (P.W. 12) inspected the place of occurrence in presence of the Informant (P.W. 5) and others. The place of occurrence was at a distance of 250 yards from village Basti towards east. It was an open place. There was a road towards north of this place which was running from east to west. By the side of the road there were some lands belonging to the Railway Department and there was also one dilapidated room of one Rambaran Singh. There was a foot-path near that room, which was passing from north to south and met the pitched road. The ditch where the place of occurrence was situate, was by the side of the road in which there was water. Blood like substance was found towards east of the aforesaid room, on the footpath in an area of one span. He seized the blood scrapings from that place in presence of witnesses. Ext. 4 is the seizure list and Exts. 1/3 and 1/4 are the signatures of the witnesses on the same. Thereafter, the Investigating Officer (P.W. 12) examined the other witnesses on 19.5.1977. 8. The injured witnesses, namely, Jawahar (P.W. 1) and the informant Chamari Gope (P.W. 5) subsequently turned up before the doctor (P.W. 13), but the doctor could not give opinion regarding the nature of the injuries found on their person, which had earlier been reserved by him. 9. Thereafter, the Investigating Officer (P.W. 12) examined the other witnesses on 19.5.1977. 8. The injured witnesses, namely, Jawahar (P.W. 1) and the informant Chamari Gope (P.W. 5) subsequently turned up before the doctor (P.W. 13), but the doctor could not give opinion regarding the nature of the injuries found on their person, which had earlier been reserved by him. 9. P.W. 12, the Investigating Officer, later on made over charge of investigation of this case to another police officer, namely, Deoraj Singh (note examined), who after completing investigation submitted chargesheet against eight accused persons only i.e. appellant no. 7 Shiv Shankar Singh of Cr. Appeal No. 595/86 was not sent up for trial. After cognizance and commitment initially only eight accused persons were put on trial. Appellants Mahipal Singh, Biran Singh, Raj Kumar Singh and accused Umesh Singh (since acquitted) were charged under section 27 of the Arms Act. Appellants Saleshwar Singh, Biran Singh alias Raj Kumar Singh, Basudeo Singh, Ballam Singh, Rajo Singh, Bindeshwar Singh and accused Ora alias Umesh Singh (since acquitted) were charged under section 302, read with section 149, of the Indian Penal Code. Appellant Mahipal Singh was charged under section 302 of the Penal Code for having committed the murder of Sakal Gope. Appellant Biran Singh alias Raj Kumar Singh was further charged under section 323 of the Penal Code for voluntarily causing hurt to Chamari Gope (P.W. 5) by means of gun. The accused persons pleaded not guilty to the charges and accordingly proceeded. Then nine witnesses were produced on behalf of the prosecution, including Jugeshwar Gope, who was tendered as P.W. 5 and others were examined at that stage, a petition was filed on behalf of the informant on 20.8.1981 praying therein to summon appellant Shiv Shankar Singh under section 319 of the Code of Criminal Procedure, who was not then on trial. This petition was finally disposed of by order dated 14.9.1981 after hearing the counsel for the parties. The learned trial court allowed the prayer of the informant and accordingly summoned appellant Shiv Shankar Singh to stand trial along with the other accused persons and the case was adjourned to next date for his appearance. In pursuance of the aforesaid order and issue of summons Shiv Shankar Sing (appellant no. 7 of Cr. Appeal No. 595/86) appeared in court and was released on bail. In pursuance of the aforesaid order and issue of summons Shiv Shankar Sing (appellant no. 7 of Cr. Appeal No. 595/86) appeared in court and was released on bail. After hearing the learned counsel appearing for the State and the learned counsel appearing for the appellant Shiv Shankar Singh on the point of framing of charge, charges under section 302, read with section 149, of the Penal Code as well as under section 324 of the Penal Code and 27 of the Arms Act, were framed against him. He also pleaded not guilty to the charge. As a result of appellant Shiv Shankar Singh having been added as an accused the learned trial court after framing of the charges against appellant Shiv Shankar Singh commenced the trial afresh from the stage of the framing of the charge. 10. Till the nine witnesses, namely, P.W. 1 Jawahar Gope alias Jawahar Yadav P.W. 2 Jagdish Mahto aliast Jagdish Prasad, P.W. 3 Arjun Gope, P.W. 4 Muni Gope, P.W. 5 Jugeshwar Gope (tendered), P.W. 6 Ghamandi Gope, P.W. 9 Chamari Gope, who has already been examined, cross-examined and discharged by the trial court, were examined afresh and their evidence was again recorded. P.W. Jawahar Gope was examined as P.W. 1, P.W. 2 Jagdish Mahto alias Jagdish Prasad was produced by the prosecution as P.W. and was tendered, P.W. 3 Arjun Gope was examined as P.W. 6, P.W. 4 Muni Gope was examined as P.W. 3, P.W. 5 Jugeshwar Gope, who was tendered earlier, was not produced by the prosecution at the subsequent stage, P.W. 6 Ghamandi Gope was examined as P.W. 4, P.W. 7 Darogi Prasad was produced by the prosecution as P.W. 7 and has been tendered, P.W. 5 Bindeshwari Yadav has been examined as P.W. 2 and the last witnesses examined on behalf of the prosecution at that stage. P.W. 9 Chamari Gope, the informant, has been examined as P.W. 5 at the subsequent stage. Besides these witnesses, the prosecution has examined other witnesses, namely, P.Ws. 0 to 13. So in all the prosecution has produced 13 witnesses in support of its case. 11. The statements of all the nine accused persons, including the appellants, were recorded under section 313 of the Code of Criminal Procedure and two witnesses as P.Ws. 1 and 2 have been examined on behalf of appellant Shiv Shankar Singh. 0 to 13. So in all the prosecution has produced 13 witnesses in support of its case. 11. The statements of all the nine accused persons, including the appellants, were recorded under section 313 of the Code of Criminal Procedure and two witnesses as P.Ws. 1 and 2 have been examined on behalf of appellant Shiv Shankar Singh. The case of the defence appears to be the plea of innocence and their false implication on account of enmity. It further appears that appellant Shiv Shankar Singh had caught the deceased Sakal Gope. Arjun Gope (P.W. 6) and the informant Chamari Gope (P.W. 5) along with others, while uprooting his Masuri-crop some months prior to the occurrence and he lodged a case against them. From difference suggestions given to the prosecution witnesses, the case of the defence further appears to be that the deceased Sakal Gope might have been killed somewhere else in the preceding night while uprooting the Masuri-crop and no occurrence as alleged by the prosecution did take place. The appellants have been falsely implicated on account of the earlier case brought appellant Shiv Shankar Singh against the deceased Sakal Gope, the informant of the present case, namely, Chamari Gope (P.W. 5) and others. Appellant Shiv Shankar Singh has, however, come forward with specific defence of alibi that he was an employee in the Postal Department and was on duty at Biharsharif Post Office on the dated and at the time of the alleged occurrence. Thus the allegation that he also participated in the crime was absolutely false. The learned trial court, however, rejected the defence plea so far as these appellants are concerned but regarding accused Umesh Singh it came to the conclusion that the prosecution had not been able to establish the charges against him beyond reasonable doubt for the reasons as stated by it in its judgment and accepted the prosecution evidence with respect to other appellants. On the basis of the aforesaid findings and conclusions the learned trial court convicted and sentenced the appellants as stated at the very outset. 12. The learned counsel appearing for the appellants in both the appeals has contended that the findings and conclusion of the learned trial court are not based on proper appreciation of evidence and sound analysis and cogent reasonings. 12. The learned counsel appearing for the appellants in both the appeals has contended that the findings and conclusion of the learned trial court are not based on proper appreciation of evidence and sound analysis and cogent reasonings. In this connection first of all it has been contended that the very genesis of the occurrence appears to be doubtful since the manner in which the occurrence is alleged to have started does not appear to be probable, especially in the background that there does not appear any motive for the accused persons to kill Sakal Gope and injured others. From the manner of occurrence as disclosed by the informant and the eye witnesses also it does not appear probable that the accused persons will behave in the manner as alleged by the prosecution. In this connection our attention has been drawn to that part of the prosecution case. Wherein according to the prosecution case itself the informant Chamari Gope (P.W. 5) has alleged in the First Information Report that he along with others had been washing the cattle that ditch from before and no objection was raised earlier by anybody. In court the informant has admitted that the accused persons had never objected to such washing of the buffaloes. So if the informant (P.W. 5), Sakal Gope (deceased) and others were washing their buffaloes in that ditch on the date of occurrence that does not appear to be sufficient for the accused persons for committing this crime. From the prosecution evidence, i.e., the evidence of the eye witnesses (hereinafter the number of the witnesses will be referred according to the witness number given at the subsequent stage by the trial court after summoning of appellant Shiv Shankar Singh), namely, P.W. 1 Jawahar Gope, P.W. 3 Muni Gope, P.W. 6 Arjun Gope and the informant Chamari Gope (P.W. 5), who claim to be the eye witnesses, it appears that all the accused persons suddenly appeared on the scene of the occurrence, being armed with deadly weapons. In the background of admitted position that the informant (P.W. 5) and others had been washing their cattle from before in that ditch, where does not appear any reasons as to why suddenly accused persons will adopt such an attitude and will come armed, kill the deceased Sakal Gope and assault some persons. In the background of admitted position that the informant (P.W. 5) and others had been washing their cattle from before in that ditch, where does not appear any reasons as to why suddenly accused persons will adopt such an attitude and will come armed, kill the deceased Sakal Gope and assault some persons. Thus the manner in which the occurrence is alleged to have started does not stand to reason and appears somewhat unnatural. The prosecution has not alleged any kind of enmity with any of the accused persons, except that appellant Shiv Shankar Singh, who is said to have lodged a case against the deceased Sakal Gope, informant Chamari Gope (P.W. 5) and others, but in our opinion the lodging of a case by appellant Shiv Shankar Singh cannot be a case for all the appellants to commit the crime in question, since they will not have any grievance as the case had been instituted by appellant Shiv Shankar. On the other hand persons who were made accused in that case are in all probability excepted to nourish grudge against the person and the supporters of the person who instituted the case against them. So it can be safely said that the informant Chamari Gope, deceased Sakal Gope and others will be the aggrieved persons in the circumstances mentioned above. So in that situation the possibility that due to the case having been instituted against the informant (P.W. 5) of the present case and his groupmen, the informant (P.W. 5). getting opportunity can make an attempt to implicate these persons falsely cannot be ruled out. This is one aspect of the case, which is very material. 13. The learned counsel for the appellants has further contended that the medical evidence as well as the objective findings of the Investigating Officer, i.e., the evidence of P.W. 9 D. Ved Vart, who held postmortem examination on the dead body of the deceased as well as P.W. 12 the Investigating Officer, also do not support the prosecution allegation and their findings are quite contradictory to oral account of the occurrence given by the eye witnesses, including the informant (P.W. 5) of the present case. According to the prosecution case, the occurrence took place at 4 P.M. on 18.5.1977. P.W. 9 Dr. According to the prosecution case, the occurrence took place at 4 P.M. on 18.5.1977. P.W. 9 Dr. Ved Vart held postmortem examination on the dead body of Sakal Gope (deceased) on 19.5.1977 at 4 P.M., i.e., just after 24 hours of the time of occurrence, but this witness (P.W. 9) has very categorically stated in his examination-in-chief that time elapsed since death was between 30 to 48 hours, which does not at all fit in with the prosecution case. The prosecution has not challenged this part of the evidence of the doctor (P.W. 9), which has come on the record in the examination-in-chief itself. Even the prosecution has not suggested to the doctor that the death of the deceased could have occurred earlier also. According to the opinion of the doctor (P.W. 9) the death of Sakal Gope took place much earlier than as stated by the prosecution witnesses. The doctor has stated that it would have occurred between 30 to 48 hours and on the basis of this opinion, the learned counsel appearing for the appellants is quite justified and reasonable in making a submission that the evidence of the doctor probablises the defence version of the occurrence. In this regard it has been submitted that the possibility that the deceased Sakal Gope might have been killed in the early hours of the preceding night while uprooting the crops of some body cannot be ruled out. Apart from the opinion of the doctor (P.W. 9) regarding the time of death, the finding of this doctor also makes the prosecution allegation suspicious and doubtful to the eye witnesses the deceased had been hit only by means of gun shot. No doubt the doctor (P.W. 9) who held the postmortem examination on the deceased found two gun shots injuries, which have been described as injury nos. iii & v. Injuries have already been referred from which it would appear that the deceased had sustained other injuries as well, which according to the opinion of the doctor might have been caused by hard-blunt substance as well as sharp weapon. The prosecution has not come forward with any explanation as to how the deceased could sustain incised wounds as well as abrasions. Of course the doctor (P.W. 9) has stated in his examination-in-chief that injures nos. The prosecution has not come forward with any explanation as to how the deceased could sustain incised wounds as well as abrasions. Of course the doctor (P.W. 9) has stated in his examination-in-chief that injures nos. i, ii and vi which were caused by hard-blunt substance might have been caused by fall and dragging but the prosecution has not been able to get the presence of the incised wounds on the dead body of Sakal Gope explained by the doctor, nor any attempt has been made by the prosecution in this regard while examining P.W. 9. Therefore, the presence of some of the injuries which are not explained from the ocular evidence gives an indication that the witnesses actually did not see assault being perpetrated on the deceased. In this connection, the learned counsel appearing for the appellants has relied on the piece of evidence which has come on record, that a case of theft had earlier been instituted against the deceased Sakal Gope, informant Chamari Gope and others by appellant Shiv Shankar Singh for committing theift of Masuri-Crop. It has come in evidence that earlier also the deceased Sakal Gope had been caught by the villagers of village Jorarpur while committing theft of crop. So on this admission of the prosecution witnesses, the learned counsel representing the appellants has submitted that the deceased might have been in the habit of socaling crops from the fields of others and he might have been killed by some body else somewhere while committing theft of the crops and the informant (P.W. 5), who was inimical to appellant Shiv Shankar Singh and others on account of the earlier case instituted against him and the deceased, took an opportunity to conduct a false case and implicate these appellants falsely. The aforesaid submission does not appear to be quite unfounded in the circumstances of the case, particularly in view of the findings of the doctor (P.W. 9) that while holding postmortem examination on the dead body of Sakal Gope (deceased) he had found two injuries, namely, injury nos. iii & v, which were caused by fire-arm having charring marks on the injuries. This indicates that the fire-arm was shot at the deceased from a very close range, which is not in consonance with the statement of the eye witnesses with respect to the manner of gun shooting at the deceased by appellant Mahipal Singh. iii & v, which were caused by fire-arm having charring marks on the injuries. This indicates that the fire-arm was shot at the deceased from a very close range, which is not in consonance with the statement of the eye witnesses with respect to the manner of gun shooting at the deceased by appellant Mahipal Singh. From the evidence of the informant (P.W. 5) it will appear that the gun shot was fired from a distance of four Bans. Likewise other witnesses have also stated that the gun shot was fired from a distance of two to three BANS. From the First Information Report also it does not appear that appellant Mahipal Singh had shot at the deceased from a close range. Presence of charring marks on the two injuries of the deceased also shows that the witnesses who claim to be the eye witnesses of the assault on the deceased are not telling truth in Court. 14. The learned counsel appearing for the State has contended in this regard that there is no settled principle of law that the medical evidence should get preference over the oral testimony of the witnesses. True it is because sometimes the medical evidence cannot be said to be conclusive and the oral account of the occurrence given by the eye witnesses may prevail, but that will depend upon the quality of the witnesses who testify to the occurrence. The kind of the eye witnesses, who have been produced by the prosecution in support of its case will be discussed at a later stage and on the basis of the evidence of such eye witnesses, the medical evidence cannot be thrown away. The eye witnesses may be interested witnesses but the doctor (P.W. 9) who held postmortem examination on the dead body, has no business to tell a lie on oath. The eye witnesses may be interested witnesses but the doctor (P.W. 9) who held postmortem examination on the dead body, has no business to tell a lie on oath. The learned counsel for the State has tried his best with reference to the medical jurisprudence and has argued that from the evidence of the doctor it cannot be said that the time elapsed since death at the time of postmortem examination must be 30 to 48 hours on the findings of the doctor (P.W. 9), but in our view for that purpose of the prosecution has to make out a case in order to show that in this case although findings of the doctor shows that the death occurred between 30 to 48 hours earlier from the time of examination but on account of some other circumstances opinion of the doctor will not be conclusive in this case. Nothing has been brought on the record by the prosecution in this regard, either by way of putting any question to P.W. 9 or to any other witness. So ordinarily the medical evidence has also to be given some weight. 15. The objective findings of the Investing Officer (P.W. 12) also do not support the prosecution version of the occurrence. According to the prosecution case itself which has been accepted by the informant (P.W. 5) in his evidence, that there was knee deep mud in the ditch and the Investigating Officer (P.W. 12) has also stated in his evidence that he found mud in the ditch and there was water about one cubit. According to the prosecution case, the deceased Sakal Gope, the informant Chamari Gope and some other persons were washing the cattle in that ditch. So ordinarily it will be expected that the mud will be in the clothes and over the body of the deceased, but from the inquest report as well as from the evidence of the Investigating Officer (P.W. 12) it does not appear that there was any mud either on the cloth or over the dead body of the deceased. The Investigating Officer has also stated that he did not find any dragging mark nor did he find any blood like substance at the house of the informant Chamari Gope (P.W. 5). The Investigating Officer has also stated that he did not find any dragging mark nor did he find any blood like substance at the house of the informant Chamari Gope (P.W. 5). Presence of blood is expected at the house of Chamari Gope (P.W. 5) because according to the prosecution case the deceased Sakal Gope was taken on a cot to the police station. This shows that the dead body must have been taken to the house of the informant, i.e. P.W. 5 Chamari Gope. The Investigating Officer (P.W. 12) has further stated that he did not find any hoof mark near the ditch, nor did he find any grazing or trampling mark in the nearby fields. If really the cattle had been taken to that ditch for being washed, in usual course it is expected that some grazing mark of crops in the nearby fields or at least hoof marks must have been present near about the ditch. Blood was found only one span in length and one span in width near the house of Rambaran Singh and nowhere else. According to the prosecution case the dead body was dragged to some distance beyond the road. So at least some trail of blood is expected from the ditch upto the place where the dead body was dragged but no such blood mark was found by the Investigating Officer (P.W. 12). Besides the findings of the doctor (P.W. 9) also does not fully indicate that there was dragging mark on the dead body. 16. It has also been urged by the learned counsel appearing for the appellants that some material witnesses have been purposely withheld by the prosecution so that the truth has not come on the record. In this connection much stress has been laid on non-production on the Chaukidar Jago Gope as a witness on behalf of the prosecution. P.W. 6 the informant Chamari Gope himself has stated in his evidence that after the occurrence the Chaukidar who was also resident of the same village, i.e. Basti had come there and he had seen the dead body. He had been sent to the police station for informing the police. Besides the informant (P.W. 5), some other witnesses have also admitted that the aforesaid Chaukidar had come and had gone to the police. He had been sent to the police station for informing the police. Besides the informant (P.W. 5), some other witnesses have also admitted that the aforesaid Chaukidar had come and had gone to the police. The Investigating Officer does not say that any information was lodged earlier or that the Chaukidar had gone to the police station to inform him. Jago Gope, the Chaukidar, being an independent witness he could have been the most competent witness on the point as to whether the names of the appellants were disclosed by the informant or other eye witnesses before him at the earliest opportunity, when he had gone to the house of the informant. Apart from Jago Gope, the other witnesses, namely, Jagat Gope, Suraj Gope and Bhondu Gope have also not been produced by the prosecution although they also appear to the material witnesses in view of the fact that these three persons had accompanied the informant to the police station while taking the dead body of Sakal Gope to the police station before lodging of the First Information Report. These witnesses could have at least said as to whether the names of the assailants of the deceased and the accused persons who took part in the occurrence were disclosed to them by the informant and the eye witnesses at the earliest opportunity. The prosecution has not submitted any explanation whatsoever for non-examination of the aforesaid witnesses, namely, the Chaukidar Jago Gope, Jagat Gope, Suraj Gope and Bhondu Gope for which in the circumstances of this case an adverse inference has to be drawn against the prosecution. The learned counsel appearing for the appellants appears to be justified in submitting that if these witnesses would have been put in witness-box, they would have disclosed the truth thereby falsifying the prosecution case and on account of that the prosecution has purposely withheld these witnesses. 17. Our attention has also been drawn by the learned defence counsel to the fact that the prosecution has totally changed the manner of occurrence in court from what has been stated in the First Information Report. From the perusal of the First Information Report, we find that according to the First Information Report the first shot was fired by Biran Singh alias Raj Kumar Singh, (appellant no. 6 In Cr. From the perusal of the First Information Report, we find that according to the First Information Report the first shot was fired by Biran Singh alias Raj Kumar Singh, (appellant no. 6 In Cr. Appeal No. 595/86), which hit Chamari Gope, the informant, and thereafter appellant Mahipal Singh shot at the deceased Sakal Gope. In Court a difference account of the occurrence has been given by all the eye witnesses. They have said that altercation also took place between appellant Mahipal Singh and the deceased Sakal Gope, which stand contradicted from the First Information Report in which it has been stated that exchange of words took place between the informant Chamari Gope (P.W. 5) and accused persons, which has completely been given a go by in court. It appears that in order to make the prosecution version of the occurrence more natural the prosecution has introduced this kind of story. So such kind of evidence cannot inspire confidence. From the perusal of the First Information Report it appears that at the time of washing of the cattle, the deceased Sakal Gope was not there. On the other hand, another brother of the informant Chamari Gope (P.W. 5), namely Ghamadi Gope (P.W. 4) was also washing his cattle along with the informant. Name of the deceased Sakal Gope occurs at a subsequent stage in the First Information Report, but the learned counsel appearing for the state has argued that by mistake in the First Information Report in place of Sakal Gope, Ghamandi Gope has been written, we are unable to accept this submission of the State counsel in view of the fact that the name of Ghamandi Gope (P.W. 4) has been repeated at several places in the First Information Report and thus according to the First Information Report Ghamandi Gope (P.W. 4) also appears to be an eye witness of the occurrence but surprisingly enough Ghamandi Gope who has been examined as P.W. 4 was examined as P.W. 6 as earlier stage, has figured only as a formal witness. He says that he had come from a different place and he learnt about the incident. The First Information Report being the earliest document containing the narration of the occurrence much reliance has to be placed on it. He says that he had come from a different place and he learnt about the incident. The First Information Report being the earliest document containing the narration of the occurrence much reliance has to be placed on it. But in view of the ocuttings made in the First Information Report and the discrepancies which have been pointed out above, the First Information Report of this case itself becomes doubtful. Thus the very foundation of the prosecution case 1 shaken. 18. Now coming to the quality of the eye witness, we find that P.W. 1 Jawahar Gope of course is said to have sustained injuries and was examined by P.W. 13 Dr. Ran Vijay Prasad, but the kind of the injury which has been deposed by the doctor hardly can be said to be the injury caused by fire-arm, although the doctor has said so. The injury found on the person of P.W. 1 Jawahr Gope has already been described. This witness is closely related with the informant (P.W. 5) who was an accused in the case lodged by appellant Shiv Shankar Singh. This witness (P.W. 1) is son of Ghamandi Gope (P.W. 4), who is the uncle of the informant Chamari Gope (P.W. 5). The deceased Sakal Gope was the brother of P.W. 4 Ghamandi Gope. P.W. 1 Jawahar Gope has stated in his evidence that Desai Gope and Ayodhya Gope were brothers. Ghamandi Gope (P.W. 4) and Sakal Gope (deceased) are sons of Gasai Gope, Chamari Gope, the informant (P.W. 5) is the son of Ayodhya Gope and Jawahar Gope (P.W. 1) and Muni Gope (P.W. 3) are sons of Ghamandi. So P.W. 1, 3, 4 and 5 are closely related amongst themselves. 19. Another eye witness is P.W. 6 Arjun Gope. This witness also cannot be said to be an independent witness since he was also an accused alongwith P.W. 5 and deceased in the case brought by appellant Shiv Shankar Singh. So absolutely no independent witness has been examined in this case on the point of occurrence. 20. Apart from the partisan character of the witnesses from the analysis of the evidence of the eye witnesses it would appear that they have contradicted each other with respect to the arms held by the accused persons. So absolutely no independent witness has been examined in this case on the point of occurrence. 20. Apart from the partisan character of the witnesses from the analysis of the evidence of the eye witnesses it would appear that they have contradicted each other with respect to the arms held by the accused persons. No doubt regarding the arm held by appellant Mahipal Singh, i.e., the gun all the witnesses are consistent, except Jagdish Prasad (P.W. 8), who has been tendered, but he was examined at the earlier stage when he stated that appellant Mahipal Singh was armed with a Bhala. Likewise with respect to other accused persons also the contradictory statements have been made by the witnesses regarding the arm held by them. 21. The informant Chamari Gope (P.W. 5) is also alleged to have received gun shot injuries at the hands of appellant Biran Singh alias Raj Kumar Singh, but from the description of the injuries given by the doctor it is difficult to accept that such injuries can be caused by fire-arm. The evidence of the doctor (P.W. 13) is somewhat unwholesome, which also appears from the kind of opinion given by him and the conduct of this doctor. On the first day when he examined P.W. 1 and 2, he reserved opinion with respect to the nature of the injuries and called them on the subsequent date, but subsequently when the witnesses turned up he b\expressed his inability to give any opinion regarding the nature of the injuries and the kind of the opinion that he has given is not worth acceptance. From the kind of injuries that has been stated by the doctor (P.W. 13) to his deposition, it is expected that the pellets must have remained embedded inside the body because would of exit has not been found by the doctor, but this doctor did not make any attempt to take out the pellets, if any from the bodies of the two injured persons nor he directed these witnesses to get the same done by any other doctor. It is difficult to believe that from all the injuries that were found on the person of P.Ws. 1 and 5, pellets will deflect and come out of the body and will disappear. That is why we have not placed any reliance on the evidence of this doctor. 22. It is difficult to believe that from all the injuries that were found on the person of P.Ws. 1 and 5, pellets will deflect and come out of the body and will disappear. That is why we have not placed any reliance on the evidence of this doctor. 22. In view of the aforesaid facts and circumstances it is difficult for us and will not be proper and reasonable to uphold the judgment and orders of conviction and sentence passed by the learned trial court against these appellants. 23. In the view of our above findings we think it unnecessary to discuss the plea of alibi set up by appellant Shiv Shankar and the evidence of the PWs. connected therewith. 24. Both these appeals are, therefore, allowed. The judgment and orders of conviction and sentence passed by the learned trial court against the appellants of both the appeals are hereby set aside and all the appellants of both the appeals are acquitted of all the charges. Appellant Mahipal Singh of Cr. Appeal No. 49/87, who is in custody, shall be set at liberty forthwith if not wanted in any other case, and rest of the appellants are discharged from the liability of their bail bonds. Appeal allowed.