Judgment RAM NANDAN PRASAD and LOK NATH PRASAD JJ. 1. All these five appeals were taken up together and this common judgment will dispose of all these appeals. They arise from the order of conviction passed in Sessions Trial Case No. 404 of 1989 by Sri Jagdish Jha, 3rd Additional Sessions Judge, Sitamarhi. 2. In criminal appeal No. 548 of 1989 Sia Lal Singh is the appellant, in Criminal Appeal No. 42 of 1990 Devendra Mahto is the appellant, in Criminal Appeal No. 25 of 1990 Maheshwar San is the appellant and in Criminal Appeal No. 17 of 1990 Paras Nath Singh is the appellant. Similarly, in Criminal Appeal No. 310 of 1990 Oakar Nath Singh is the appellant and this appeal is also heard along with the batch of these appeals for the reason that this very appellant was facing trial along with other appellants but at the argument stage of the trial he absented from the proceeding and he could not be apprehended. So his trial was separated vide order dated 7-9-1988 with an observation that if this appellant would be apprehended then the evidence already recorded in his presence may be used so a separate sessions case bearing Sessions Case No. 404 of 1989 was registered. When this appellant was apprehended then again after argument a fresh judgment of conviction was passed by the same trial judge. The appellant, Devendra Mahto, was sentenced to undergo life imprisonment under Section 302 of the Indian Penal Code and also he was found guilty under Section 27 of the Arms Act and Section 148 of Indian Penal Code. Similarly, all the other appellants were found guilty and sentenced to life imprisonment under Section 302 and 149 of the Indian Penal Code and further Sia Lal Singh, Onkar Nath Singh, Paras Nath Singh were convicted under Section 148 of the I.P.C. and the Arms Act. Maheshwar Sah was also found guilty under Section 147 of the Indian Penal Code but the trial Court has not awarded any separate sentence as against the minor sections of the Indian Penal Code. 3. The prosecution case in short is that on 11-4-1986 the deceased along with the informant, Ashok Kumar Singh, had gone to Budhai Bazar within Dumra P. S. at about 5 p.m. or so. 3. The prosecution case in short is that on 11-4-1986 the deceased along with the informant, Ashok Kumar Singh, had gone to Budhai Bazar within Dumra P. S. at about 5 p.m. or so. Suddenly, all these appellants along with Shankar Singh of village Prem Nagar and another Shankar Singh of village Lagama as also one unknown person came along with them who was wearing Kurta and Paijama. After their arrival the appellant, Devendra Mahato fired from his revolver from a close range on the head of Krishna Nandan Singh due to which he fell down after sustaining injury. Immediately after that all the appellants and named accused escaped away ad it has been alleged that appellant, Onkar Nath Singh, was also armed with revolver and Maheshwar Sah was holding Lathi. It is also the prosecution case that some of the witnesses including one Upendra Mishra chased the criminals and the unknown person who was wearing Kurta and Paijama fired causing injury to Upendra Mishra. After that informant and other witnesses took the injured to the pitch road from the market place and after that he was taken to Sitamarhi hospital but on the way injured Krishna Nandan Singh died. In the hospital immediately A.S.I. attached to Sitamarhi P. S. namely, M. Ravi Das recorded the Fardbeyan of the informant, Ashok Kumar Singh, which is Ext. G and forwarded the same to Dumra P. S. for instituting a case. 4. The Dumra P.S. in whose jurisdiction the place of occurrence lies immediately came into action and F.I.R. was lodged and officer-in-charge took up the investigation and he not only visited the place of occurrence on the same night but also inquest of the deceased was prepared and the dead body was sent for autopsy. The officer incharge also seized blood sustained earth and after closing the investigation submitted charge-sheet as against these appellants and also one Shankar Singh of Lagama. Shankar Singh of Lagama absented or absconded during the trial and so his trial was separated and other six accused persons facing trial in the Court below and out of them another Shankar Singh of village Prem Nagar was found not guilty of the charges levelled against him by the trial Court and as such he was acquitted. Shankar Singh of Lagama absented or absconded during the trial and so his trial was separated and other six accused persons facing trial in the Court below and out of them another Shankar Singh of village Prem Nagar was found not guilty of the charges levelled against him by the trial Court and as such he was acquitted. These five appellants before us were convicted and sentenced by the Court below in the manner indicated above and preferred these appeals challenging the finding of the trial Court on various grounds. 5. Admittedly, this case was instituted as homicidal death of one Krishna Nandan Singh of Prem Nagar which admittedly took place in the market known as Subhal Bazar within Dumra P.S. The factum of homicidal death that too due to fire-arm injury on the head is not challenged by the appellant in any manner save and except their participation and manner of occurrence. Moreover, from the evidence of the witnesses including the I.O. this fact is well proved that the deceased, Krishna Nandan Singh, who was present in the market for purchasing fish or so in the evening on 11-4-1986 was shot at on the head by a close range and he immediately fell down and was removed to the hospital and on the way he died. The investigating officer also found trail of blood upto the pitch road and also prepared inquest in presence of the witnesses. Similarly P.W. 13, Dr. Tej Narain Singh, who held post-mortem examination on the deadbody of the deceased on the next day of the occurrence found only one injury on the head was anti-mortem caused by fire-arm from a close distance and this injury caused the death of the deceased according to the doctor. So the homicidal death of the deceased as alleged by the prosecution is well proved by independent and cogent evidence. 6. Now the main question for consideration is if the accused persons for the reason of animosity formed an unlawful assembly and the common object was to commit murder and in furtherance of common object one of the member of assembly namely, Devendra committed the murder of the deceased as alleged. 7. 6. Now the main question for consideration is if the accused persons for the reason of animosity formed an unlawful assembly and the common object was to commit murder and in furtherance of common object one of the member of assembly namely, Devendra committed the murder of the deceased as alleged. 7. To prove the occurrence in the manner alleged by the prosecution, the prosecution had examined as many as eight witnesses on the point of occurrence besides there are tendered, formal witnesses and the I.O. as also the Judicial Magistrate. P.W. 11 is the informant, Ashok Kumar Singh, himself and the evidence of this witness is important for the prosecution to prove the case as alleged. This witness stated that at the time of occurrence he was present along with the deceased and they had gone to market for purchasing fish and all on a sudden these appellants and the acquitted accused Shankar and another Shankar came and all of them surrounded the deceased and Onkar Nath Singh ordered for assault and Devendra, the another appellant obliged him by firing on the head of the deceased which resulted in his fall and subsequent death. It is also his evidence that all the appellants except Maheshwar Sah were armed with fire-arm and Maheshwar Sah was holding a lathi This witness has further stated that after the firing the witnesses chased and Upendra Mishra also gave a chase but on the way Devendra fired causing injury to Upendra Mishra who too was hospitalised for the injury. It is also his evidence that the genesis of the trouble that in the month of February, 1983 the deceased and his partner, Raghunath Singh took the settlement of the Hat for collection of toll and prevented the appellant, Onkar Nath Singh, from taking settlement. This led to animosity and blank firing was also restored to earlier and for this very annoyance this occurrence took place which resulted in the murder of the deceased, Krishna Nandan Singh. 8. Learned counsel for all the appellants assailed the evidence of this informant on various grounds more particularly that this witness being the nephew of the deceased and for the animosity implicated the appellants. 8. Learned counsel for all the appellants assailed the evidence of this informant on various grounds more particularly that this witness being the nephew of the deceased and for the animosity implicated the appellants. Though it can be said that practically there is nothing on the record to show that the other appellants except Onkar Nath and Devendra had any nexus or connection with the settlement and they had any interest so far the settlement of Hat is concerned. Moreover, one of the appellants Sia Lal Singh is a school teacher and practically he has nothing to do with the dispute of two groups. It is true that there is nothing on the record to show that other appellants save and except Onkar Nath and Devendra had any connection with the settlement of the Hat. It appears initially doubtful if, at all, all the appellants without any connection with each other will form an unlawful assembly for killing the deceased for the reason that the deceased prevented the appellant, Onkar Nath Singh, from taking settlement of the Hat. Moreover, it appears that the entire version of the prosecution as made in the F.I.R., which is earlier version, had gone a considerable improvement during the course of the trial. This witness has tried to improve the prosecution case in order to bring home the guilt as against all the appellants by making statement in the Court that all of them except Maheshwar were armed with revolver though in the F.I.R., the earlier version, indicates that Devendra and Onkar Nath Singh were armed with revolver. The other important improvement that all of them came and surrounded the deceased and thus they contributed in commission of the crime but the F.I.R. is simpliciter and simply indicated that all the accused came but no specific overt act alleged. It is also the deposition of this witness that after chase by one Upendra Mishra who too was injured by fire-arm that too by Devendra though F.I.R. version indicates that unknown Paijama and Kurta (sic) criminal caused injury to Upendra Mishra. It is also the deposition of this witness that after chase by one Upendra Mishra who too was injured by fire-arm that too by Devendra though F.I.R. version indicates that unknown Paijama and Kurta (sic) criminal caused injury to Upendra Mishra. For the reason mentioned above, it appears that a considerable improvement was made in the prosecution case during the trial and his presence there also appears doubtful for the reason that all the witnesses except P.W. 4 have not stated that he was present at the time of occurrence and only P.W. 4 has claimed that the informant was present and the presence of P.W. 4 itself appears to be doubtful for the reason to be discussed below. 9. The other important witness are P.W. 1, Taken Thakur, P.W. 2, Ram Babu Singh, P.W. 3, Ram Sakal Singh, P.W. 4, Baidyanath Paswan, P.W. 5, Jai Mangal Singh and P.W. 8, Satya Narain Singh. All these wirnesses are witness to the occurrence according to the prosecution and they had claimed that at the relevant time they were present there. But these witnesses had also given a different version in the Court by repeating the same version as given by the informant and these witnesses have also tried their best to improve the case of the prosecution in the manner indicated above. Moreover, P.W. 1, Taken Thakur, and P.W. 2, Ram Babu Singh had stated that they were purchasing vegetable and fish and at that time they had heard firing sound and then they had seen the accused persons and narrated the various acts of the accused persons. If at all they were purchasing fish or vegetable and all on a sudden they heard the sound then it is not expected from them to see the entire occurrence and to identify the accused persons. It is the prosecution that there was only one firing and the accused persons escaped. In that view of the matter, they have no occasion to see the occurrence in detail. 10. Similarly P.W. 3 had claimed that he was present in the medicine shop at that very time. From the evidence of I.O. it can be said that medicine shop was facing east situated on the west of the road. If that is so, it is not possible for this witness after the firing to see on the East side where the occurrence took place. From the evidence of I.O. it can be said that medicine shop was facing east situated on the west of the road. If that is so, it is not possible for this witness after the firing to see on the East side where the occurrence took place. Moreover, this witness has not stated before the I.O. that he was present there as a chance witness as he had gone to purchase medicine. Similarly, P.W. 4, Baidyanath Paswan, has claimed that he too was present there as he was selling fish but he has not been able to disclose as to from which tank he brought the fish and taken the tank on settlement. Moreover, he has not stated before the I.O. that he had gone there to sell fish Admittedly, this witness is on inimical term with some of the appellants, because Shankar Singh instituted a criminal case as against the deceased, this witness, informant and others and it has come in evidence and has been admitted by this witness and other witnesses that the deceased had a criminal history and he was convicted in a dacoity case. In that view of the matter, the evidence of this witness is highly shaky and does not inspire any confidence. Similarly, P.W. 5, Jai Mangal Singh, claimed to have seen the occurrence as he was present there for purchasing meat and this witness has not stated before the I.O. that he had gone there to purchase meat and he had also given exagerrated version of the occurrence as stated by other witnesses. Similarly, P.W. 8 is also a chance witness and a close relation being maternal uncle of the informant and he too has not stated before the I.O. that he had gone there in the Hat for purchasing Kunda and he too had given a completely different version of the occurrence as stated by the witnesses. 11. Admittedly, all the witnesses discussed above are merely chance witnesses and all of them belong to village Prem Nagar, the village of the deceased, and the informant and some of them are closely related as also some of them are friends of the deseased. 11. Admittedly, all the witnesses discussed above are merely chance witnesses and all of them belong to village Prem Nagar, the village of the deceased, and the informant and some of them are closely related as also some of them are friends of the deseased. A chance witness is supposed to remain present at the time of occurrence near the place of occurrence by virtue of some coincidence and the learned counsel for the appellants submitted that in such circumstance when the witnesses are relations or friends and they are merely chance witnesses animically disposed towards the accused then in such a situation though their evidence are not to be discarded only for that reason but their evidence does require cautious and close scrutiny and in support of this contention they relied upon an authority of the Supreme Court reported in AIR 1976 SC 2032 Bahal Singh V/s. State of Haryana. 12. In the instant case admittedly all these witnesses are chance witnesses and they are either relations or friends of the deceased and of the same village and they had not stated before the I. O. that they had gone to the place of occurrence, the market place, for some work and for the first time they claimed in the Court that they were present in the market. Moreover, on scrutinising their evidence with care and caution, in view of the principle laid down by the Apex Court, it can be said that these witnesses made an attempt to improve the prosecution case and had stated in more severe manner than what has been stated in the F.I.R. and this gives reflection of their partisan attitude and thus it is thoroughly unsafe to rely upon their evidence if the evidence is not consistent and attendant with a sense of partisan attitude. Under the circumstances we are not inclined to accept the evidence of the witnesses, who are the chance witnesses. 13. The other important witness is Satya Narain Singh, who is Dafadar of village Subhal and he was on duty at the relevant time. Definitely this witness is very important witness as he is expected to know about the occurrence. But this witness has also given a very different version by stating that Onkar Nath Singh ordered for killing the deceased and all the accused came and surrounded the deceased and subsequently Devendra fired which hit Upendra Mishra. Definitely this witness is very important witness as he is expected to know about the occurrence. But this witness has also given a very different version by stating that Onkar Nath Singh ordered for killing the deceased and all the accused came and surrounded the deceased and subsequently Devendra fired which hit Upendra Mishra. This witness has stated that he chased the criminals to a long distance and he was all along present in the market but his conduct appears to be highly suspicious and doubtful not for the reason that he had given a different version of the occurrence but also for the reason that though he is a Dafadar and the witness of the occurrence but surprisingly he was silent over the matter and has not reported the matter at the police station. In that view of the matter we are not inclined to accept the testimony of this witness. 14. The prosecution case regarding the manner of occurrence also appears to be doubtful and participation of these appellants appears to be doubtful for the reasons that most important witness of the occurrence is Upendra Mishra, who is admittedly in military service and was present at the time of occurrence and on independent witness. This witness has seen the entire occurrence and has chased the criminals and in that process he also sustained injury by fire-arm. No doubt, the learned P. P. appearing for the prosecution argued that in the instant case no blame can be thrown on the prosecution for the reason that steps were taken by the Court below for securing attendence and it appears that this witness was gained over and Dasti summon was given to one of the accused so that he can produce this witness. It is true that a petition was filed in the Court below on behalf of the prosecution as is evident from the order sheet dated 29-7-1989 that this witness was gaind over. It is true that a petition was filed in the Court below on behalf of the prosecution as is evident from the order sheet dated 29-7-1989 that this witness was gaind over. When a prayer was made on behalf of the accused person to examine this witness as Court witness no doubt an opportunity was given to one of the accused persons that he can very well cross-examine as defence witness and he failed to avail this opportunity but initially the burden is on the prosecution to examine this important witness and it was contended on behalf of the appellants by their counsel that mere filing a petition by the prosecution that the witness has been gained over is not sufficient to exonerate the prosecution from the liability of examining the independent witness and there must be some evidence to show that the witness has been gained over. In support of this contention the counsel for the appellants relied upon an authority of the Supreme Court reported in AIR 1971 SC 1586 -State of U. P. V/s. Jaggo alias Jagdish. 15. Admittedly, there is nothing on the record to show that any evidence was adduced on behalf of the prosecution to show that this important witness was gained over and so mere filing a petition that he was gained over is not sufficient to discharge the liability of the prosecution regarding examination of the important witnesses. So non-examination of this important witness Upendra Mishra really cause prejudice to the defence case and it was rightly submitted on behalf of the appellant that this independent witness had given a different version about the occurrence before the I. O. and so it has been withheld by the prosecution to prevent coming of real version and thus the prosecution prevented the real version to come to light. 16. Similarly, the prosecution has failed to examine Raghunath Singh, who is equally important witness because he took the settlement of the disputed Hat in question. It has also come in evidence as admitted by the I.O. that there was medicine shop of one Shiv Narain near the place of occurrence and in that very shop PW 3 was present for purchasing the medicine but surprisingly Shiv Narain had not been examined and similarly Yogendra Thakur who had his hut near the place of occurrence has not been examined. Moreever it has come in evidence that admittedly the occurrence took place in the fish market and only the fishermen of Prem Nagar were present and selling fish and the occurrence took place when the deceased was purchasing fish. In that view of the matter, it was the duty of the I. O. to investigate land examine the fisherman in question regarding the occurrence and they could have unfolded the truth. So non-examinatioa of the material witnesses definitely caused prejudice and it can be said that opportunity of fair trial was deprived to the defence. 17. It was also submitted on behalf of the appellants that the prosecution witnesses gave evidence convenient to them and though initially there was prosecution case that one Shankar Sing of Prem Nagar was also a member of the mob but definitely during trsal some of the witnesses had stated that this very Shankar Singh of Prem Nagar came to the place of occurrence later oh and thus he was not a member of the mob and no role was assigned to him only for the reason that Shankar Singh also instituted a case as against the informant and the other witnesses and it appears that there was compromise between both the parties. It is to be borne in mind that due to the evidence of the witnesses Shankar Singh of Prem Nagar was acquitted by the trial Court itself. This also indicates that the prosecution witnesses are not truthful. 18. So on careful consideration of the entire facts and the surrounding circumstances as discussed above we are of the opinion that the prosecution has not been able to prove the participation of the appellants in this very occurrence and the occurrence in the manner as alleged has not been proved for the reason mentioned above. We are of the opinion that all these appeals must succeed and as such all the five appeals are hereby allowed and the conviction and sentence of the appellants as awarded by the trial Court are hereby set aside, and the appellants, who are on bail are discharged from the liability of their bail bonds and the appellant, Devendra Mahato, who is in jail custody shall be released forthwith if not required in any other case.