Judgment O.N.Asthana, J. 1. These two criminal appeals and the death reference arise from the Judgment and order of a Additional Sessions Judge I Siwan dated 8th January, 1993 in Sessions Trial No. 188 of 1990 where the Additional Sessions Judge i held the accused appellants Rajdeo Bhar@Deou Bhar and Vidya Kurmi guilty for the offences punishable under Sections 302 and 148, IPC. The other accused appellants Bhola Sah, Manu Bhar, Bhanu Bhagat and Pati Bhar are held guilty for the offences punishable under Sections 148 and 302 read with Section 149, IPC. The accused appellant Pati Bhar is held guilty further under Section 307, IPC and under Section 27 of the Arms Act. 2. Viewing that it was case of premeditated gruesome murder motivated by ill-feeling, the trial Judge awarded the death sentence to Vidya Kurmi and Rajeo Bhar @ Deou Bhar and made the reference to the High Court for confirmation of the death sentence of Vidya Kurmi and Rajeo Bhar@Deou Bhar. 3. The other four accused appellants, namely, Bhola Sah, Bhanu Bhagat, Manu Bhar and Pati Bhar are awarded the sentence of ten years rigorous imprisonment for the commission of the offence under Section 307 IPC and, further, a sentence of three years rigorous imprisonment for the commission of offence under Section 27. Arms Act. All these sentences have been directed to run concurrently. 4. No separate sentence was passed for the commission of offence under Section 148, IPC by the trial Court. 5. Arms Act. All these sentences have been directed to run concurrently. 4. No separate sentence was passed for the commission of offence under Section 148, IPC by the trial Court. 5. The prosecution case is that Shambhu Prasad Singh (the deceased) had gone to city Siwan (where he had got a residential house), and on 24th October, 1989 at 3-15 p.m. he returned by bus to rural Darauli market small town (where he had a residential family house) ; mand while he was returning to his Darauli residence, he got the bus stopped in the way in front of the house of accused Bhola Sah (which is by the side of pitch road in village-Krishnapalli), and he asked Bhola Sah to arrange labourers for white washing and cleansing his residential houses at Siwan and Darauli as after four days deepavali festivity was to be celebrated ; and he also told Bhola Sah that he would be returning back soon from Darauli to his parental village Krishnapalli (where he had his old family house with the clan men and landed agricultural property) and he would be meeting him again and then he would be going back from Krishnapalli to Darauli to stay there at night (the distance between the village abadi of Krishnapalli and Darauli is two kilometres). 6. Shambhu Prasad Singh, a rich farmer of the locality and owner and owner of a couple of buses, was moving on the rickshaw driven by Suresh Harijan with licensed double barrel gun in his hand while he came back from Darauli residence to village-Krishnapalli at 4 p.m. or about, and he did not find Bhola Sah at his residence, and he arrived at the house of his pattidar (agnate) Sri Narbdeshwar Prasad Singh (PW 6) (situate in front of his parental village home at a distance of 150 yards). Shambu Prasad Singh talked to Narbdeshwar white he seat the boy Umesh Singh son of Rajdeo Singh to call his son Ravi Bhushan Singh from his house ; Ravi Bhushan arrived there aloag with Majid Mian, and Kaushal Kishore Singh (sou or Narbdeshwar) (PW 2) were there at the door of Narbdeshwar. Shambu Prasad Singh talked to Narbdeshwar white he seat the boy Umesh Singh son of Rajdeo Singh to call his son Ravi Bhushan Singh from his house ; Ravi Bhushan arrived there aloag with Majid Mian, and Kaushal Kishore Singh (sou or Narbdeshwar) (PW 2) were there at the door of Narbdeshwar. Shambhu Prasad Singh told Narbdeshwar that he had asked Bhola Sah for arranging labourers for him and to give the information of this arrangement to him and while he returned back from Darauli, he did not find Bhola Sah at his house. Shambhu Prasad Singh asked his son, Ravi Bhushan Singh (PW 1) and Majid Mian to accompany him to his Darauli residence. Shambhu Prasad Singh moved ahead on the rickshaw with his gun in his hand, and his son Ravi Bhushan Singh and Majid Mian followed him on a bicycle. While the rickshaw proceeded ahead on Mairwa-Darauli pitch road and moved two hundred yards away from Krishnapalli Harijan Colony and reached near the burry bush, all of a sudden ten to twelve persons who were lying on wait came out from the paddy field of Chandrabhan Singh from the east of the road and surrounded the rikshaw of Shambhu Prasad Singh, and the accused Pati Bhar snatched the gun from the hands of Shambh Prasad Singh ; the accused Rajdeo Bhar@Deou Bhar and Vidya Kurmi assaulted Shambhu Prasad Singh with their Daab (sharp cutting weapon which is used in trimming palm trees) and Fasuli (sharp cutting weapon) on the head of Shambhu Prasad Singh while he was on the rick- shaw, and the other accused persons Manu Bhar, Bhola Sah, Bhanu Bhagat of village Krishnapalli armed with Daabs, and Amar Yadav of Kabirpura, Birendra Bhagat of village Balaou and Sudama Prasad, an employee of Kushawaha Medical House Mairwa armed with pistol and who proclaimed himself to be member of Lal Sena, surrounded and assaulted Shambhu Prasad Singh with Daab. Shambhu Prasad Singh gave loud cries help and uttered loudly "Arhe Baap Deowa, Vidya Maar Dehalas". Shambhu Prasad Singh gave loud cries help and uttered loudly "Arhe Baap Deowa, Vidya Maar Dehalas". Hearing the cries of his father Shambhu Prasad Singh, Ravi Bhushan and the accompanything fellow Majid Mian rushed ahead to save Shambhu Prasad, any they saw all these accused appellants Amar Yadav, Birendra Bhagat and Sudama Prasad there and they saw Deou Bhar and Vidya Kurmi assaulting Shambhu Prasad Singh on his head with Daab and Fasuli and the other accused appellants were also assaulting his father with Daab. The accused Pati Bhar who was holding the gun of his father shot a. fire at the son Ravi Bhushan w|ho was coming close to the rickshaw, and per chance that fire shot did riot hit Ravi Bhushan to cause any injury. Being seriously injured Shambhu Prasad Singh rolled down from his seat on riclshaw, and the accused Bhola Sah uttered that the goal of the IPF Party was achieved. On the cries of help of the informant Ravi Bhushan the people of his village and of village Mura-Mujhauwa and one Dinesh Singh of Village Bismania (situate one and half kilometers away^PW 4 who were nearby and witnessed the occurrence arrived by the side of rickshaw for the help. On the call of the accused Amar Yadav, all the accused persons fled away towards the east of the road through paddy field. 7. Alongwith these accused persons, three to four unknown persons were also there and they were identified by the informant and the other witnesses as well, The victim Shambhu Prasad Singh became unconscious and he was bleeding profusely. The son Ravi Bhushan Singh with the help of the villagers carried Shambhu Prasad Singh to Darauli Hospital on the same rickshaw with the driver on foot holding it. Dr. Bhartendu Roy (PW 16) of Darauli Hospital bandaged the injuries of Shambhu Prasad Singh on the head and left hand in the verandah of his Hospital at 6-15 p.m. and directed the informant to carry his father to District Hospital, Siwan as his condition was precarious. The injured unconscious Shambhu Prasad Singh was carried to Sadar Hospital by passenger Vehicle No. 407 where he was given the treatment but he succumbed to his injuries in course of treatment by 10 p.m. same night. 8. Md . The injured unconscious Shambhu Prasad Singh was carried to Sadar Hospital by passenger Vehicle No. 407 where he was given the treatment but he succumbed to his injuries in course of treatment by 10 p.m. same night. 8. Md . Alauddin (PW 22) Station Officer-in-Charge, of the Area Police Station, Darauli received an information at 6-15 p.m. in the evening on 24th October, 1989 that someone had injured Shambhu Singh of Krishnapalli throwing bomb on him, and after making station diary entry at 6-15 p.m., he alongwith the Police Force came to the nearby Darauli Government Hospital within five minutes and there he found Shambhu Singh injured and uncouscious and the doctor was bandaging the head injuries of Shambhu Singh ; and the son of Shambhu Prasad Singh including Ravi Bhushan Singh were busy in arranging the shifting of their injured father from Darauli Hospital to District Hospital, Siwan as the doctor told that Shambhu Singh was in critical condition ; this Police Officer started making enquiry about the incident from the eldest son Ravi Bhushan Singh, and in the meantime, the four wheel vehicle No. 407 arrived there and Ravi Bhushan, his brothers and some villagemen took the injured and unconscious father |to Siwan Hospital ; Ravi Bhushan was in hurry to go with his father and thus, he showed his inabiility to give the statements to the Police Officer at that juncture though he told the names of assailants. 9. As the villagemen were divided on political leanings and the deceased was a rich and knwno man of the locality, and, thus, apprehending that violence might not erupt, this Police Officer came to village- Krishnapalli and deputed Police Force ; and in the way, the Police Officer found blood was lying there on the metalled road between Mairwa and Krishnapalli. This Police Officer came to Siwan Sadar Hospital same day at 10 p.m. and came to know that Shambha Prasad died in the Hospital. This Police Officer started enquiries from Ravi Bhushan and meantime, he came to know that the Police Officer of Town Police Station, Siwan Shri Suleman Soren (PW 14) had already arrived there on receiving information memo from the hospital doctor and recorded the statement of Ravi Bhushan Singh at 8-30 p.m. relating the occurrence. This fardbeyan of Ravi Bhushan Singh is Ext. 4. This fardbeyan of Ravi Bhushan Singh is Ext. 4. Shri Suleman Soren (PW 14) Incharge, Police Sub-Inspector of Town Police Station, Siwan who recorded the statement of Ravi Bhushan Singh (Ext. 4) relating the occurrence as First Information Report handed over that fardbeyan of Ravi Bhushan Singh (Ext. 4) to Md. Alauddin, Police Station Incharge of Darauli who came to Sadar Hospital and the forwarding note written by Shri Suleman Soren at the bottom of fardbeyan nothing its handing over to the Police Officer, Darauli Police Station is Ext. 5. The Police Officer of Darauli Police Station Md. Alauddin also made a note of its receipt Ext. 6. 10. Next day Suleman Soren, Police Officer of the Town Police Station, Siwan, arrived in the morning and prepared the inquest report relating the dead body of Shambhu Prasad Singh in the Emergency Ward of the Sardar Hospital in presence of the witnesses so that the body be taken earliest for post-mortem, and thus, removed from the Emergency ward of the Hospial. This inquest report is Ext. 7. Shri Soren also prepared a seizure list relating the blood stained cloths of Shambhu Prasad Singh. This seizure list is Ext. 8. 11. After receiving the fardbeyan of Ravi Bhushan Singh from Shri Soren Police Office of Town Police Station, Siwan, Md. Alauddin recorded the statement of Ravi Bhushan Singh there in the Sadar Hospital. Thereafter, Shri Md. Allaudin came back to Darauli Police Station at 11-30 p.m, in the night and registered the case on the basis of that fardbeyan of Ravi Bhushan Singh, Police Station Case No. 81 of 1989 after entering the formal First information Report in the records of his Police Station, and that formal First Information Report is Ext. 13. Shri Md. Alauddin came to nearby Darauli Government Hospital at 12-30 p.m. and seized the rickshaw of Suresh Harijan in presence of the witnesses and that seizure list is Ext. 3. The Investigation Officer recorded the statements of Majid Mian, Raja Singh, Fateh Bahudur Singh, Kaushal Kishore Singh, Narmadeshwar Singh, Birendra Singh, Dinesh Singh, Suresh Harijan, Bharat Singh, Parmanand Singh, Haridaya Singh, Lalan Singh and others. The Investigation Officer visited the place of occurrence in the morning, The road was ten feet wide at the place of occurrence and large quantity of blood was there on the metalled road. The Investigation Officer visited the place of occurrence in the morning, The road was ten feet wide at the place of occurrence and large quantity of blood was there on the metalled road. This road running from north to south had a slight curve towards west at the place of occurrence, and there was a bush of berry trees in the east of the road and there was also the field of standing, paddy crops belonging to Chandrabhan Singh. The Police Officer found that the standing crop of paddy in Chandrabhans field was trampled. The Investigation Officer found the wooden piece of broken butt of the gun nearby the place of occurrence by the side of the berry bush. This Investigation Officer prepared the seizure list taking into possession the blood stained earth, broken butt of the gun and other wood of the guns body and small pieces of bone found at the place of occurrence in presence of the witnesses. This seizure list is Ext. 8(B). The Investigation Officer also fouhd a cartridge, an old Fasuli, a knife, a Nepali Khukhri and a pamphletan appeal of CP! (ML) in the name of justice loving people of Rajput Caste and a cutting from Aryavarta Newspaper dated 8th March, 1989 in the follow land fifty yards away towards east from the place of occurrence. This seizure list is Ext. 8 (c). In the night, the Investigation Officer raided thj houses of the accused persons, named in the fardbeyan, and he arrested Deou Bhar and Pati Bhar, and the other accused were not found at their houses. Later, Bhola Sah was arrested in Siwan town. 12. The Investigation Officer was shown the gun licence by the informant which stood in the name of his deceased father, Shambh Prasad Singh. This Investigation Officer raided the neighbouring villages to make the arrest of other accused persons but they were not found. Later, on 21th October, 1989, this Investigation Officer arrested two unidentified youths wandering at 10-30 p.m. in the night and when he called them to stop, they fled, they were chased and they were taken into custody. They told their names as Dina Nath, Raj Bher and Shiv Kumar Prasad alias Shiv Kumar Rajbher. On interrogation, they appeared to be suspects in this murder and they were sent Baparda to jail after taking remand from the Magistrate. They told their names as Dina Nath, Raj Bher and Shiv Kumar Prasad alias Shiv Kumar Rajbher. On interrogation, they appeared to be suspects in this murder and they were sent Baparda to jail after taking remand from the Magistrate. They were put on Test Identification Parade by the Magistrate, Shri Anil Kumar Singh (PW 21) on 22nd September, 1990. 13. This Police Officer requisitioned Police dogs in course of the investigation and that dog went forward and entered in the houses of Vidya Kurmi, Bhabu Bhagat, Bhola Sah, and this dog sat on a chauki in Bhola Sahs house. The Investigation Officer found ten small glass tumblers and one black coloured plastic jerrcan which emitted smell of wine. The Investigation Officer prepared the seizure list of these glasses and jerrycan in presence of the witnesses, and the seizure list is Ext. 8(d). While searching the house of Bhanu Bhagat, the Investigation Officer found an iron butted and another wooden butted Daabs, and he prepared their seizure list in presence of the witnesses, Ext. 8(e). 14. The blood stained clothes of the deceased Shambhu Prasad Singh and the informant son Ravi Bhushan and of Majid were exhibited in the trial Court. Further, the two Daabs recovered from the hoube of Bhanu Bhagat and the glass tumblers and jerrycan recovered from the house of Bhola Sah, the broken end of the butt of the gun and other wooden pieces of the gun, the empty cartridge etc. recovered from the place of occurrence were exhibited before the trial Court. 15. Dr. Further, the two Daabs recovered from the hoube of Bhanu Bhagat and the glass tumblers and jerrycan recovered from the house of Bhola Sah, the broken end of the butt of the gun and other wooden pieces of the gun, the empty cartridge etc. recovered from the place of occurrence were exhibited before the trial Court. 15. Dr. Shyam Balak Singh (PW 23) conducted the post-mortem on the dead body of late Shambhu Prasad Singh at 8-30 a.m. on 25th October, 1989 and found the following ante-mortem injuries (i) incised would 6"x3/4"x communicating with the parital cavity on the left side of the head-brain matter protruding out of wound, (ii) incised wound 3"x3/4"x bone deep on the left side of the head, (iii) incised wound 4 l/2"xl/2"X communicating with the parital cavity on the right side of the head-brain protruding out of the wound, (iv) incised wound 4"Xl/2 X bone deep on the right side of the head, (v) incised wound 4"X3/4"X bone deep on the occipital region of the head (vi) incised wound 3"Xi/2"X bone deep just above right ear, (vii) incised wound 1 1/2"X1/2"X bone deep just above right eye, (viii) incised wound 13 over 4"X1/2"X bone deep on the upper part of the forehead, and (ix) incised wound 23/4"X3/4"X bone deep on the left hand. 16. Dr. Shyam Balak Singh noted that these injuries were caused by sharp cutting instruments like Daab or Fasuli; and the death in his opinion was caused due to injuries on head leading to excessive haemorrhage and shock ; and the head injuries were sufficient in ordinary course of nature to cause death. The post-mortem report is Ext. 9. According to the doctor, time elapsed since death was about eighteen hours and rigor mortis was present in all the four limbs. 17. The prosecution examined Ravi Bhushan Singh alias Bhola Singh (PW 1), Kaushal Kisore Singh (PW 2), Raja Singh (PW 3). Dinesh Singh (PW 4) Baikunth Singh (PW 5), Narmadeshwar Prasad Singh (PW 6), Lalan Singh (PW 7), Virendra Singh (PW 8), Permanand Roy (PW 9), Fateh Bahadur Singh (PW 10), Hriday Narayan Singh (PW 11), Gugal Rai (PW 12), Rama Kant Tiwar; (PW 13), Shri Suleman Soren (PW 14), Digvijay Kumar Singh (PW 15), Dr. Dinesh Singh (PW 4) Baikunth Singh (PW 5), Narmadeshwar Prasad Singh (PW 6), Lalan Singh (PW 7), Virendra Singh (PW 8), Permanand Roy (PW 9), Fateh Bahadur Singh (PW 10), Hriday Narayan Singh (PW 11), Gugal Rai (PW 12), Rama Kant Tiwar; (PW 13), Shri Suleman Soren (PW 14), Digvijay Kumar Singh (PW 15), Dr. Bhartendu Roy (PW 16), Bharat Singh (PW 17), Rajesh Singh (PW 18), Ang Nath Pandey (PW 19), Anil Kumar Singh (PW 20), Shri Anil Kumar Singh, Judicial Magistrate (PW 21), Shri Md. Alauddin, Investigation Officer (PW 22), and Dr. Shyam Balak Singh, Additional Chief Medical Officer (PW 23). 18. In defence all the accused persons denied the charges and suggested that there were several enemies of Shambhu Prasad Singh due to Court litigations and business rivalry and some of them would have murdered Shambhu Prasad Singh in the dark hours of the evening The accused Deou Bhar stated in his statement under Section 313 of the Code of Criminal Procedure that he was not an accused in Police Firing Case and that he had been implicated by the witnesses falsely. The other accused Vidya Kurmi told the Court in his statement recorded under Section 313 of the Code of Criminal Procedure that he was an active member of IPF and on the date of occurrence, he was at his father-in-laws house in villaga- Majauri to bring back his wife and children. The accused Bhola Sah too raised the plea of alibi that he had gone to Calcutta and he was not there in the village on that day when Shambhu Prasad Singh was murdered ; and he did not try to take any help from Shambhu Prasad Singh and never pretended to be his friend for getting his help in police firing case where he was the accused. 19. Accused Pati Bhar denied the allegations. The other accused Bhanu Bhagat raised the plea of alibi that he was at Kanpur. and he had been falsely implicated in this case because he was giving subscription to IPF and that he was on bail in Police Firing Case. The accused Manu Bhar raised the plea that he was a member of IPF Party but IPF Party did not believe in violence and that he was in other village at the house of his relation when the Police Officer raided his house. 20. The accused Manu Bhar raised the plea that he was a member of IPF Party but IPF Party did not believe in violence and that he was in other village at the house of his relation when the Police Officer raided his house. 20. Accused Dina Nath told the Court in his statement recorded under Section 313 of the Code of Criminal Procedure that he had gone to stay in village-Krishnapalli at the house of his fathers sister who is married to Jhagru Rai Bher and the Police arrested him in village-Krishnapalli at 10 a.m. and brought to Police Station and got him identified by the informant and that the Charges had been framed against him because he is an active member of IPF Party. The other accused Sheo Kumar Rajbher told the Court in his statement recorded under Section 313 of the Code of Criminal Procedure that he was arrest by the Police at 2 p.m. in village- Krishnapalli while he was returning from the house of his brothers father- in-law in village-Nadian, and he was kept in the Police Station for two days and was shown to the informant of this case and that the charges had been framed against him because he is an active member of IPF Party. 21. None of these accused persons had examined any witness in support of their plea of alibi. 22. The accused persons examined Ramayan Ram (DW 1) in their defence. This witness told that Shambhu Prasad Singh won the case of his land against Virendra Singh and others, and yet Virendra Singh was holding possession over that land inspite of the degrea of the Court in favour of Shambhu Prasad Singh, and, thus, Shambhu was trying to regain possession over that land and tense relations were there between Shambhu Prasad Singh and Virendra Singh. This witness stated further that Nagendra Singh and Girdhar Singh agnates of Shambhu Prasad Singh were hostile to Shambhu Prasad. Further, this witness stated that Ramdeo Yadav harvested barley crop from the field of Shambhu Prasad. Thus, tense relations were there between Shambhu Prasad and Ramdeo Yadav. This witness stated further that Nagendra Singh and Girdhar Singh agnates of Shambhu Prasad Singh were hostile to Shambhu Prasad. Further, this witness stated that Ramdeo Yadav harvested barley crop from the field of Shambhu Prasad. Thus, tense relations were there between Shambhu Prasad and Ramdeo Yadav. This witness stated further that Vinay Jain was also plying his buses on the route of Shambhu Prasad and Shambhu got the buses oi Vinay Jain stopped from movament on that route and, thus, Vinay Jain was hostile to Shambhu This told further that Dinesh Singh (PW 4) was bus conductor of Shambhu Prasad and that prosecution witnesses were either the relations or castement of late Shambhu Prasad. This witness stated that Shambhu Prasad was murdered on the road near the Harijan Toli. Further, this witness stated that he is a member of IPF Party and he was an aceused in Police Firing Case and that his house was purched by the Investigation Officer in connection with the murder of Shambhu Prasad This.witness told that he does not know the name of the bus driver where Dinesh served as Bus conductor of Shambhu Prasad Singh. 23. Ravi Bhushan Singh alias Bhola Singh (PW I) stated on oath that between 4 and 4.30 p.m. on 24th October, 1989, his father Shambhu Prasad Sineh was there at the door of the house of Narmadeshwar Prasad Singh in Krishnapalli while he was at his old parental house and he was called by his father and he and Majid came to meet the father at the door of the house of Narmadeshwar Prasad Singh, Kaushal Kishore Singh son of Narmadeshwar Prasad Singh (PW 2) too was there. In his presence his father told Narmadeshwar Prasad Singh, while he was going to Darauli he told Bhola Sah in the way to arrange the labourers soon, and while he came back from Darauli, Bhola Sah was not there at his house, and Shambhu Prasad Sineh moved on his rickshaw to Darauli with licensed gun in his hand and as directed by his father the son Ravi Bhushan Singh alongwith Maiid moved behind that rickshaw on the bicycle; and while that rickshaw crossed Harijan Colony of village-Krishnapalh and reached near the berry tree ten to twelve armed persons came out from the easterm oaddv field and surrounded the rickshaw and started making assault on Shambhu Prasad Singh ; and Shambhu Prasad Singh cried "Deou-Vidya were assaulting him, and called out for help". This witness Ravi Bhushan Singh (PW 1) alonwith Majid on bicycle moved fast, and he (this witness Ravi Bhushan Singh) saw that Deou and Vidya were assaulting with Fasulia and Daab on the head of his father Shambhu Prasad who was Mated on the rickshaw and that other persons, namely, Pati Bhar, Manu Bhar Bhanu Bhagat, Bhola Sah and Amar Yadav, Sudama and Virendra and three to four persons whom he could recognise by face were there and were assaulting his father, and the accused Pati Bhar snatched the gun from the hands of his father, and he fired at him (on this witness pw 1)n with that gun. With the bledding injuries and becoming senseless Shambhu Prasad Singh rolled down from the seat and fell down at Foot rest of the rickshaw. On alarm raised by this witness, the passersby rushed to come by the side of the rickshaw. They saw this occurrence and the running away of the accused persons from the scene of occurrence. 24. Further, this witness stated that accused Bhola Sah uttered that the goal of his IPF Party had been achieved while they ran away on the bidding of accused Amar Yadav. The accused persons ran away towards east through the paddy field. PW 1 brought his father to he nearby Darauli Hospital where Dr. Bhartendu Roy (PW 16) bandaged the injuies and as shambhu Prasad Singh was unconscious and in critical health, Dr. Bartendu Roy directed that the injured be taken immediately to District Hospital, Siwan. The accused persons ran away towards east through the paddy field. PW 1 brought his father to he nearby Darauli Hospital where Dr. Bhartendu Roy (PW 16) bandaged the injuies and as shambhu Prasad Singh was unconscious and in critical health, Dr. Bartendu Roy directed that the injured be taken immediately to District Hospital, Siwan. This witness along with his brothers and other village- rnen came to Sadar Hospital, Siwan in the Mini Bus No. 407 and in course of the treatment at Siwan Hospital, Shambhu Prasad Singh died same day by 13 p.m. Relating the motive PW 1 stated that there was firing between Police Personnel and IPF Party workers in the village where the Police Personnel were also injuried, and during the enquiry Shambhu Prasad Singh stated against IPF Workers before the Superintendent of Police. 25. Relatiag the time of occurrence on the road near the berry tree, this witness Ravi Bhushan Singh (PW 1) stated that it was 5-30 in the evening and the sun was setting (and, thus, there was natural light enough to identify the assailants) This witness stated that the accused Bhola Sah had established good relations with his father hoping that his father would be soft towards IPF workers including Bhola Sah in the criminal case relating the fire by IPF workers on the police party. PW 1 stated that the rickshaw puller, Suresh Harijan had joined the membership of IPF Party and thus he was not coming before the Court to depose as a prosecution witness. This witness stated futher, that Majid Mian had also joined the membership of IPF Party and develped good relations with the accused persons and, thus he had also declined to depose as a prosecution witness. In cross-examination, this witness stated while the Police Officer came at Darauli Hospital he was busy in carrying his father to Sadar Hospital, Siwan for treatment, and on enquiry from the Police Officer, he simply told the names of the culprits to the Police OSScer and he told the names of Bhola Sah. Deou Bher, Vidya Kurmi, Pati Bhar, Manu Bhar, Bhanu Bhagat and Sudama to be the culprits; and he kept his injured father in the mini bus and rushed to Sadar Hospital, Siwan. 26. Deou Bher, Vidya Kurmi, Pati Bhar, Manu Bhar, Bhanu Bhagat and Sudama to be the culprits; and he kept his injured father in the mini bus and rushed to Sadar Hospital, Siwan. 26. This witness PW 1 stated in the cross-examination that he and Majid were at a distance of fifty yards on the bicycle behind the rickshaw of his father ; and they rushed ahead on bicycle hearing the cries of his father, and his witness identified the culprits making the assaults on his father. This witness was at a distance of twenty to thirty yards away only from his father while he saw these accused persons assaulting his father, and the accused Pati Bhar fired at him. He ran crying for help, and he and passerby arrived soon around the rickshaw where Shambhu Prasad Singh had rolled down from the seat of the rickshaw. This witness stated that he did not enter into any conversation with his family members, relations and village- men at the place of occurrence or at Darauli Hospital or in the way to Siwan Hospital. This witness stated further in cross-examination relating the assaults on his father that tie saw that the accused Deou and Vidya were assaulting his father from his front side. Relating other accused persons, this witness stated that he identified them but it was not possible for him to state who were on the right side and who were on the left side but they were making assaults. 27. Relating other accused persons, this witness stated that he identified them but it was not possible for him to state who were on the right side and who were on the left side but they were making assaults. 27. Kaushal Kishore Singh (PW 2) son of Narmadeshwar Prasad Singh (PW 6) stated on oath in the Court that the house of the accused Bhola Sah is visible from his house, and is at a distance of about fifty yards from his house, and between 3-30 to 4 p.m., he saw the accused Deou Bhar, Vidya Kurmi Pati Bhar, Bhanu Bhagat, Anar Yadav, Manu Bhar and a couple of unknown persons entering inside the house of Bhola Sah, and soon Bhola Sah brought a black jerrycan in his house getting down from a tractor, and after ten to fifteen minutes Shambhu Prasad Singh came to his house on rickshaw and had a talk with his father telling that Bhola Sah was to arrange labourers or him, and he (this witness PW 2) was busy in giving fodder to the cow ; that Shambhu Prasad) Singh called his son and Majid to accompany him to Darauli and Shambhu Prasad Singh moved on the rickshaw towards Darauli with the gun in his hand and his Ravi Bhushan Singh (PW 1) and Majid followed him on the bicycle. This witness stated that he also went to give the evening round to his agriculture fields and while he was neat Harijan Toli, he beard the loud cries of Shambhu Prasad Singh "Aahe Baap Deoua Vidya Maar Dehalas", and he heard the crises of Bhola Singh and Majid as well and he rushed ahead on the road. This witness stated, further, that he saw accused Deou Bhar, Pati Bhar, Vidya Kurmi, Bhanu Bhagat, Manu Bhar, Amar Yadav and four to five unknown persons were assaulting Shambhu Prasad Singh with Daab and Fasuli, and the accused Pati Bhar snatched the gun from the bands of Shambhu Prasad Singh, and Shambhu Prasad Singh rolled down on the rickshaw ; and the accused Pati Bhar opened fire with that gun of Shambhu Prasad Singh. The accused Bhola Sah uttered that the goal of IPF Party had been achieved and the accused Amar Yadav gave the call to bis fellowmen "Let us go away, the villagers were arriving". 28. The accused Bhola Sah uttered that the goal of IPF Party had been achieved and the accused Amar Yadav gave the call to bis fellowmen "Let us go away, the villagers were arriving". 28. This witness and his father Narmadeshwar Prasad Singh (PW 6) belong to the clan of the deceased Shambhu Prasad Singh. This witness stated that Bhola Sah had re-established good relations with Shambhu Prasad Singh, and the house of Bhola Sah was utilised by IPF workers as party office and for taking out procession etc. The place of occurrence where Shambhu Prasad Singh was assaulted by these culprits was hardly two thousand fifty to three hundred yards away from the house of this witness PW 2. This witness stated in cross-examination that he heard the names of the two accused Deou Bhar and Vidya in the utterances of Shambhu Prasad Singh. This witness stated that he saw these accused persons making assaults on Shambhu Prasad Singh. This witness could not tell which accused assaulted on which part of the body and which accused gave how many blows. This witness stated that Shambhu Prasad Singh wa6 at his house and was talking to his father at 5 p.m. in the evening. A suggestion was given to this witness (PW 2) in the cross-examination that either Vinay Jain, a competitor in bus business or Nagendra and Girdarsan, full brothers of Shambhu Prasad Singh who were litigating a case with Shamuhu Prasad hired criminals (gunda elements) who assaulted Shambhu Prasad Singh on the road in that evening while it was dark. The witness denied the suggestion in his statement. This witness stated that he was at a distance of fifty to sixty yards away from the place of occurrence when he noticed the occurrence, and he came forward to see what was happening, and he recognised the assailants of Shambhu Prasad Singh. 29. The witness denied the suggestion in his statement. This witness stated that he was at a distance of fifty to sixty yards away from the place of occurrence when he noticed the occurrence, and he came forward to see what was happening, and he recognised the assailants of Shambhu Prasad Singh. 29. Dinesh Singh (PW 4), resident of village-Biamania told the Court that he had gone to Darauli Block to get the fertilizer and he gave there an application to the Manager Supervisor in that connection, and he was returning back to his village, which is situate at a distance of one and half kilometre away from village-Krishanapalli; and while in the way between 5-30 and 5-45 p.m. he saw that the accused Deou, Vidya, Manu, Bhanu Bhagat, Bhola Sah, Virendra Sudama and Amar Yadav were assaulting with Daab, Fasuli and Kanta on Shambhu Prasad Singh who was on a rickshaw on He road, and the accused Pati Bhar was holding a gun in his hand and he fired. He stated specifically that the visibility was clear. Bhola and Majid shouted and cried loudly for help ; Shambhu Prasad Singh had fallen down on the foot rest of the rickshaw due to the bleeding injuries ; the accused Bhola Sah gave the call that the goal of IPF. Party had been achieved and the accused Amar Yadav told them to fled away, other villagemen who were at nearby places also arrived there and he saw Virendra Singh, Raja Singh, Lallan and others amongst them. In cross-examination, this witness stated that twelve to thirteen persons had already reached the place of occurrence that is by the side of rickshaw before his arrival there. He stated that he was at a distance of one hundred feet from the rickshaw when these accused persons were noticed by him making assaults on Shambhu Prasad Singh, and he moved forward towards the rickshaw and he saw Shambhu Prasad Singh was being assaulted by these accused persons while he was fifty feet away from these culprits and he remained standing there for a couple of minutes. This witness denied the suggestion of the accused persons that he was even then in the employment of Shambhu Prasad Singh. This witness denied the suggestion of the accused persons that he was even then in the employment of Shambhu Prasad Singh. This witness told the Court on oath that two years back, he left the job of conductor on the bus of Shambhu Prasad Singh, and he was not in the employment of Shambhu Prasad Singh on the date he was at the place of occurrence and saw the assaults by these accused persons on Shambhu Prasad Singh. 30. Raja Singh (resident of village-Krishnapalli) PW 3 told the Court on oath that he was returning on bicycle from Darauli Market to his house, and between 5-30 to 5-45 p.m. while he crossed Harijan Toli, he saw that Shambhu Prasad Singh was injured and bleding lying on the rickshaw and his son Bhola Singh was there who told him that Vidya, Bhola Sah, Pati Bhar, Deou Bhar, Manu Bhar, Bhanu Bhagat were running away after assaulting his father. He stated, further, that he saw with his own eyes ten to twelve persons running away, and he himself identified Bhola Sah, Bhanu Bhagat, Vidya Kurmi, Manu Bhar, Deou Bhar, Pati Bhar amongst them, and he gave them a chase inside paddy field for a considerable distance but he could not catch hold any one of them. In cross-examination, he stated that he lighted the torch of his hand in course of giving the chase. 31. Virendra Singh (PW 8) stated on oath in the Court that he was sitting at the door of his house in village-Krishnapalli and he heard the gun shot fire and loud calls for help, and it was the evening hour and sun was setting, and he went in the direction of the calls to arrive on the pitch road to the south of Harijan Toli and he saw that Shambhu Prasad Singh was lying injured and unconscious and his son Bhola Singh was weeping, and Bhola Singh told him that Bhola Sah, Bhanu Bhagat, Manu Bhar, Deou Bhar, Pati Bhar and Vidya Kurmi, Amar Yada, Virendra and Sudama ran away after making assaults on his father. He told further that during the couse of investigation, the Police dog was requisitioned and the Police Inspector searched the houses of the accused Bhanu Bhagat, Tenger Bhagat, Kapileshwar Harijan etc. and seized the articles mentioned in Ext. He told further that during the couse of investigation, the Police dog was requisitioned and the Police Inspector searched the houses of the accused Bhanu Bhagat, Tenger Bhagat, Kapileshwar Harijan etc. and seized the articles mentioned in Ext. 2 in his presence from their houses and he signed the seizure list as one of the witnesses. This witness stated in cross-examination that several other persons had also arrived at the place of occurrence when he reached there. 32. Narmadeshwar Prasad Singh (PW 6) stated that Shambhu Prasad Singh came at his housee on rickshaw from Darauli at 4-45 p.m. or about in the evening on 24th October, 1989 and he told him that he had asked Bhola Sah to arrange labourers for white washing his houses, and he did not find Bhola Sah at his house and, thus, he could not get the information whether Bhola Sah managed the labourers ; and Shambhu Prasad Singh enquired about his son Ravi and Majid, and the boy was sent to call Ravi Bhusan and Majid, and Shambhu Prasad Singh went to Darauli on the rickshaw and his son Bhola Singh and Majid followed him on the bicyle ; that few minutes, he heard the gun shot and loud utterances and he rushed towards that direction and he found Shambhu Prasad Singh lying on the road, south of Harijan Toli, and he enquired from the son Bhola how it happened and Bhola told him that Bhola Sah, Bhanu Bhagat, Many Bhar, Pati Bhar, Deou Bhir, Vidya Kurmi, Amar Yadav and three or four other persons had assaulted his father Shambhu Prasad Singh with Daab and Fausli, and that the injured unconscious Shambhu Prasad Singh was taken to Darauli Hospital. This witness stated that Shambhu Prasad Singh was his Pattidar (belonged to his clan) and Shambhu Prasad Singh stayed at his house for hardly half an hoar. 33. This witness stated that Shambhu Prasad Singh was his Pattidar (belonged to his clan) and Shambhu Prasad Singh stayed at his house for hardly half an hoar. 33. Fateh Bahadur Singh (PW 10) stated on oath that in the evening hours on 24th October, 1989, be came towards the south of his house to attend the call of nature and also to make a round of bis agriculture field, and while he sat by the side of the katcha road to ease, he heard the gun 6hot fire from western side from a distance approximately half a kilometre add also heard loud cries for help he staten further that he saw that the accused Pati Bhar holding a gun whose butt was broken and behind him the accused Deou Bhar, Vidya Kurmi, Bhola Sah, Bhanu Bhagat, Amarnath Yadav and a couple of other persons were running away towards east passing in front of him and he recognised them. In cross-examination, he told that they were about thirteen persons and they were not running fast. In cross-examination this witness stated that he told the Police Officer in his statement under Section 161 of the Code of Criminal Procedure that ht saw the accused lighting his torch. 34. This witness stated further, that after passing the stools, he went in the direction of the sound of the gun shot and arrived at the road and he came to know that the injured Shambhu Prasad Singh was taken to Darauli Hosiptal on rickshaw and he also went to Darauli Hospital. 35. Hriday Narayan Singh (PW 11) owner and conductor of the bus told the trial Court on oath that Shambhu Prasad Singh travelled by his bus on 24th October, 1989. Shambhu Prasad Singh had a talk with the accused Bhola Sah in the way at 3-15 p.m. that Bhola Sah would be arranging labourers for his house. 36. Parmanand Coy (PW 9) told the trial Court on oath while he was coming, he saw Bhola Sah coming on a tractor with a jerrycan in his hand, and he got down from the tractor in front of the wine shop in his presence at 4 p.m. on 24th October, 1989, and Bhola Sah told him that some guests had arrived and he had come to purchase wine for them. This witness stated in cross-examination that the jerrycan of Bhoia Sah was not filled in his presence and that he did not see any other person entering the wine shop. 37. Baikunth Singh (PW 5) is a formal witness, and blood stained clothes were taken in his presence in custody by the Police Officer and he is witness to that seizure list prepared by the Police Officer Ext. 2. 38. Lalan Singh (PW 7) has been tendered before the trial Court by the prosecution. 39. Gugal Rai (PW 12) is a formal witness who heard about the murder of Shambhu Prasad Singh in the village and he arrived at Darauli Hospital within ten minutes and he also boarded the mini bus going to Siwan Hospital, and he stated that Ravi Bhushan Singh (PW 1) gave the statement to the Police Officer regarding this occurrence and the fardbeyan relating this First Information Report was prepared by the Police Officer at 8-30 p.m. in the Siwan Hospital in his presence and he signed this fardbeyan as a witness to authenicate the identity of Ravi Bhughan Singh. Further, the witness stated that he stayed there at Siwan Hospital in the night, and in the morning, the inquest report was prepared by the Police Officer in his presence and he signed that inquest report as a witness. 40. Rama Kant Tiwary (PW 13) is a formal witness, and he stated that the police officer seized the standing rickshaw in the premises of Darauli Hospital, and the blood was there on that rickshaw. 41. Digvijay Kumar Singh (PW 15) has been tendered by the prosecution in the trial Court. 42. Bharat Singh (PW 17) and Ang Nath Pandey (PW 19) had been tendered by the prosecution in the trial Court. 43. Rajesh Singh (PW 18) is a formal witness. This witness stated that the Police Officer prepared the seizure list collecting the troken butt of the gun, empty cartridges, blood from the road and a couple of small bone pieces from the place of occurrence at about 12 in the night in his presence and he signed the seizure list prepared by the police Officer at the spot. Further, in his presence, the Police Officer collected Pamphlets, newspaper, Bhujali, etc. Further, in his presence, the Police Officer collected Pamphlets, newspaper, Bhujali, etc. in his presence, from the nearby field next day at 5 a.m., and he signed the seizure list prepared by the Police Officer relating them as a witness. 44. Anil Kumar Singh (PW 20) is a formal witness. He is the son of the deceased. He identified the deadbody of the father Shambhu Prasad Singh before Dr. Shyam Balak Singh who conducted the post mortem ; and he proved the licence of the gun of his late father. 45. Shri Anil Kumar Singh, Judicial Magistrate (PW 21) is a formal witness who carried the identification parade where the co-accused Dina Nath and Sheo Kumar Singh were identified (these two accused persons had been acquitted by the trial Court). 46. These contentions had been raised on behalf of the appellants (1) there is no evidence on behalf of the prosecution to show such a large number of accused who reside in different villages happened to assemble soon at the house of Bhola Sah and formed an unlawful assembly for the purpose of the commission of murder of Shambhu Prasad Singh, (2) the First Information Report in the case is really a belated report at the Police Station implicating 1PF Partymen and their sympathizers whom the big agriculturists hated ; (3) the prosecution witnesses had not seen the occurrence ; (4) the Independent witness had not been examined by the prosecution ; (5) and that really there were dark hours in the evening and either the brothers of Shambhu Prasad Singh who were carrying on litigation or Vinay Jain who had business rivalry with Shambhu Prasad Singh managed to kill Shambhu Prasad Singh,. 47. The prosecution evidence is that Shambhu Prasad Singh had a talk with Bhola Sah at 3-15 p.m. that Bhola Sah should arrange labourers for him soou, and he would be returning from Darauli soon. Kaushal Kishore Singh (PW 2) told the Court that between 3-30 and 4 p.m., he saw the accused Deou Bhar, Pati Bhar, Bhanu Bhagat, Maau Bhar, Amar Yadav (resident of other village) and couple of unknown persons (residents of other village) entering inside the house of Bhola Sah. Kaushal Kishore Singh (PW 2) told the Court that between 3-30 and 4 p.m., he saw the accused Deou Bhar, Pati Bhar, Bhanu Bhagat, Maau Bhar, Amar Yadav (resident of other village) and couple of unknown persons (residents of other village) entering inside the house of Bhola Sah. It is not easy to believe if these persons were brought in so soon by Bhola Sah with the object of the commission of murder of Shambhu Prasad Singh, Kaushal Kishore Singh (PW 2) stated, further, that soon Bhola Sah brought a black jerrycan (of wine) in his house, and after ten to fifteen minutes, Shambhu Prasad Singh came to his house on rickshaw and he had talk with his father stating that Bhola Sah was not there at his house. This shows probably these persons assembled at the house of BhoJa Sah far some other purpose and per. schedule fixed a day or two earlier and soon they left the house of Bhola, Sah. There is neither the oral evidence nor any documentary evidence from the side of the prosecution to show if this meet at the house of Bhola Sah culminated in the object of commission of murder of Shambhu Prasad Singh. Thus, the prosecution has not been able to prove that the assembled persons at the house of Bhola Sah made the commission of murder of Shambhu Prasad Singh their object, and with that object, they moved out from the house of Bhola Sah. 48. Ravi Bhushan Singh (PW 1) stated on oath that on the say and directions of his father, he along with Majid Mian, moved on bicycle behind the rickshaw of his father, and he heard the cries of his father from a distance of fity yards on that quiet village road. Kaushal Kishore Singh (P.W. 2) and Narmadeshwar Prasad Singh (PW 6, told the Coart on oath that the son Ravi Bhushan Singh @ Bhola Singh along with Majid Mian followed on the bicycle his father Sbambhu Prasad Singh going on the rickshaw. The deposition of Dinesh Singh (PW 4) establishes that the son Ravi Bhushan Singh @ Bhola Singh and Majid Mian were there and they also cried loudly for help while Shambhu Prasad Singh was being assaulted by the accused. The deposition of Dinesh Singh (PW 4) establishes that the son Ravi Bhushan Singh @ Bhola Singh and Majid Mian were there and they also cried loudly for help while Shambhu Prasad Singh was being assaulted by the accused. The deposition of Virendra Singh (PW 8) who, hearing the gun shot fire and the loud calls for help, arrived soon at the place of occurrence (stated) on oath that he saw the son Bhola Singh (PW 1) there at the place of occurrence. The depositions of these witnesses establish beyond doubt the presence of Ravi Bhushan Singh (PW 1) at the place of occurrence. 49. This area was volatile with different political ideologies and some indulged in violence j and it was very likely that bombs were exploded here and there in the evening hours to make the villagemen feel upperhand of one party group or the others and having come to know that Shambhu Prasad Singh had been murdered. Some one of the village rushed to nearby Darauli Police Station and gave an information that Shambhu Prasad Singh had been attacked by a bomb. This little information was not treated to be the first infromation report by the Police Officer and after making the entry in Station Diary relating to this information at 6-15 p.m., the Police Officer came to nearby Darauli Hospital alongwith the Police Force within five minutes. Ravi Bhushan Singh, the eldest son was there at the place of occurrence, and he was there at Darauli Hospital, and, thus, the other witnesses of the occurrence and other relatives of the deceased had not shown interest in lodging First Information Report or giving information relating the occurrence to the Police Officer. Being the eldest son, Ravi Bhushan Singh was much engaged in his mind to save his father with the help of the doctors and, thus, Ravi Bhushan Singh simply told the Police Officer the names of the culprits he saw, and he soon boarded the mini bus to carry his injured father who was in critical condition to the District Hospital, Siwan. At Siwan, the Hospital doctor seat the memo to the nearby Siwan Town Police Station and the Police Inspector Suleman Soren (PW 14) of that Police Station arrived there at the Hospital and recorded the fardbeyan of Ravi Bhushan Singh (Ext. 4), First Information Report of the case. At Siwan, the Hospital doctor seat the memo to the nearby Siwan Town Police Station and the Police Inspector Suleman Soren (PW 14) of that Police Station arrived there at the Hospital and recorded the fardbeyan of Ravi Bhushan Singh (Ext. 4), First Information Report of the case. In these circumstances, the suggestion of the learned advocate for the appellants that Ravi Bhushan Singh, his other brothers and relations or the witnesses of the occurrence who came to Darauli Hospital should have given the statement to the Police 0fficer. Darauli Police Sutton lodging the First Information Report, has no merit. 50. The learned advocates for the appellants had drawn attention to the conduct of Ravi Bhushanl Singh (PW1) who stated that he had no talk with his relations either at Darauli Hospstal or during the journey in the bus now this occurrence took place and his father was killed. Being the eldest son, he might be too much absorbed in his mind for the health of his father, and the other family members might be equally anxious for the health of the father Shambhu Prasad Singh and, thus, no one would have enquired from Ravi Bhushan Singh how all this happened. The learned advocates for the appellants pointed out that, the normal course was that Suleman Soren (PW 14) who recorded the First Information Report should have entered it in the register of his Siwan Police Station and then despatched that First Information Report to Darauli Police Station, and the directly handing over of that First Information Report to the Police Officer of Darauli Police Station was also a cause for suspicion. As the Police Officer of Darauli Police Station Md. Alauddin (PW 22) arrived at Siwan Hospital Suleman Soren, Police Officer of Town Police Station, Siwan, who arrived at 8-30 p.m. to record the First Information Report in the Hospital handed over the same to Md. Alauddin at 10 p.m. or about so that Md. Alauddin might register it at Darauli Police Station soon and go ahead with the investigation and the arrest of the culprits named in the First Information Report. The direct handing over of the First Information Report to Md. Alauddin Officer-in-charge of the Area Police Station, Darauli does not go to creaite any doubt either in the early reporting of the occurrence or in the correctness of the First Information Report. The direct handing over of the First Information Report to Md. Alauddin Officer-in-charge of the Area Police Station, Darauli does not go to creaite any doubt either in the early reporting of the occurrence or in the correctness of the First Information Report. There is nothing to suggest from thej side of the accused persons either to Suleman Soren, Police Officer of Siiwan Police Station or to Md. Alauddin Police Officer of the Area Police Station, Darauli if any of these Police Officers had any grudge or hostility with any of these accused persons. In the above circumstances, the First Information Report of this case, lodged by Ravi Bhushan Singh, cannot be said to be a belated report and with a motive to implicate the accused persons falsely on the charge. The prosecution witnesses have stated that the large area cultivators had no hostility with 1PF Partymen, though 1PF Partymen were carrying on their work by spreading the ideology inlandless workers. 51. As discussed above, the presence of Ravi Bhushan Singh alias Bhola Singh (PW 1) at the place of occurrence is not doubtful. The independent witness who saw this occurrence is Dinesh Singh (PW 4). This witness has stated the occurrence. on oath. The learned advocates for the appellants contended that he is a chance witness, and if he was there he was at a distance and he reachejd late and that he was in the employment of Shambhu Prasad Singh and, thus, a biased witness. No doubt, he lives in other village but his residential village is nearby and he was returning from the Block Office to his house where he had gone for certain purpose, namely, getting the fertilizer. He narrated the occurrence on oath. There is nothing to doubt his statement. The testimony of this witness cannot be rejected categorising a chance witness. This witness stated on oath that he was at a distance of one hundred feet when he saw the occurrence and he came forward fast and he saw all this occurrence from a distance of fifty feet. The witness stated, further, while he reached close to the rickshaw twelve to thirteen other persons have already arrived there. Those persons, being the residents of the same! The witness stated, further, while he reached close to the rickshaw twelve to thirteen other persons have already arrived there. Those persons, being the residents of the same! village, and witnessed the occurrence, would have rushed forward running While this witness Dinesh Singh resident of other village would have moved at a normal pace towards the rickshaw. The deposition of this witness, read as a whole, does not give the impression that this witness Dinesh1 Singh did not see the occurrence and he arrived late. Pavi Bhushan Singh (PW l) who lodged the report at the Police Station, named this witness Dinesh Singh specifically among the persons who saw this occurrence. Dinesh Singh (PW 4) had stated on oath thai he left the job of conductor on the bus of Shambhu Prasad Singh two years back and he was not in the employment of Shambhu Prasad Singh when this occurrence took place. The defence witness Ramayan Ram (DW 1) is a member of IPF Party and he was co-accused in Police Firing case, and his house was also searched by Investigation Officer in connection with the murder of Shambhu Prasad Singh, and, thus, the deposition of Ramayan Ram (DW 1) deserves hardly any credence. Further, this witness stated before the Court that he did not know the name of the bus driver where Dinesh was serving as bus conductor of Shambhu Prasad f Singh. Thus, his statement that Dinesh Singh was the bus conductor on the bus of Shambhu Prassd Singh on the date of occurrence in not acceptable. 52. Kaushal Kishore Singh (PW 2) has stated on oath that he saw this occurrence. Of course, this witness PW 2 belongs to the clan of the deceased. The deposition of Kaushul Kishore Singh (PW 2), read as a whole, is trustworthy. There is nothing either to doubt his arrival at the place of occurrence of the veracity of his testimony. The accused appellants had not suggested to this witeness Kaushal Kishore Singh if he bore any grudge or hostility against these accused appellants. The mere fact that he happened to belong to the clan of the deceased is not enough to discard his statement. 53. The prosecution witnesses have stated on oath though the sunset started, the sunlight was there in the sky when the accused persons surrounded and assaulted Shumbhu Prasad Singh who was moving on the rickshaw. The mere fact that he happened to belong to the clan of the deceased is not enough to discard his statement. 53. The prosecution witnesses have stated on oath though the sunset started, the sunlight was there in the sky when the accused persons surrounded and assaulted Shumbhu Prasad Singh who was moving on the rickshaw. The advocates for the appellants have drawn attention to the statement of Dr. Bhartendu Roy (PW 16) who stated that he bandaged the wounds of Shambhu Prasad Singh in the verandah of the Hospital in torch light and contended that probably the occurrence took place in the dark hours of the night. This witness Dr. Roy (PW 16) stated in cross-examination that it was Godhili (during sunset), the injured Shambhu Prasad Singh was brought in the Hospital and a few objects could be seen in the verandah of the Hospital even without lantern or torch. Going from the place of occurrence to Darauli Hospital on rickshaw without paddling would have taken at least twelve to fifteen minutes. Thus, it cannot be said that the occurrence might have taken place in the dark hours of the night. The torch would have been used by the doctor to see that the wounds were well cleaned and disinfected by the Hospital compounder before the bandage. The learned advocates for the appella its drew the attention to the statement of Raja Singh (PW 3) who stated in cross-examination that he lighted the torch of his hand in course of giving the chase and this also indicates that the occurrence took place in the dark hours of the evening. The chase was given by the witness inside the paddy fields running over the malnd (mud boundaries) for a considerable distance and it was natural for Raja Singh to light his torch in course of giving such a chase though some light of setting sun was there. Further, the learned advocates for the appellants had also drawn the attention to the statement of Fateh Bahadur Singh (PW 10) who stated in cross-examinatian that he told the Police Officer that he saw the accused persons running away while he lighted his torch. Further, the learned advocates for the appellants had also drawn the attention to the statement of Fateh Bahadur Singh (PW 10) who stated in cross-examinatian that he told the Police Officer that he saw the accused persons running away while he lighted his torch. These accused persons left the place of occurance (road) and entered inside the paddy fields and conveniently crossed the distance of half a kilometre before passing the front of this witness Fateh Bahadur Singh Singh (PW 10) who was sitting to pass stools. These accused persons would have at least taken five to six minutes or a little more from the place of occurrence to cross the front of this witness Fateh Bahadur Singh. Hearing the moving of large number of foot steps, it was natural for Fateh Bahadur Singh to light his torch. These statements of the witnesses do not go to show any probability that this occurrence took place in the dark hours of the evening. 54. Learned advocates for the appellants pointed out that the prosecution has not examined the admittedly present eye-witnesses Majid and Suresh and had not examined other villagemen including the residents of the nearest Harijan Toli. Ravi Bhushan Singh (PW i) has stated on oath that the rickshaw driver Suresh Harijan and Majid both had joined l.P.F. Party later on and, thus, developed good relations with the accused persons and they had declined to deposed as a prosecution witness. It had not been shown from the side of the accused appellants if these two witnesses Suresh and Majid had any special facts to disclose and the prosecution had suppressed them from coming on the record, The prosecution had examined other eye-witnesses of the occurrence in the case. On the appelication of the accused persons at defence stage to examined Majid and Suresh as Court witnesses, the trial Court by order dated 27-8-1992 declined to examine them as Court witnesses and gave the liberty to the accused persons to summon or to examine as defence witnesses. The accused persons had the opportunity and they too did not prefer to examine Majid or Suresh. In view of the fact that the prosecution has examine the three eye-witnesses of the occurrence namely, Ravi Bhushan Singh, Kaushal Kishore Singh and Dinesh Singh (PWs 1, 2 and 4), the non-examination of Majid and Suresh is not in any way prejudicial to the prosecution case. In view of the fact that the prosecution has examine the three eye-witnesses of the occurrence namely, Ravi Bhushan Singh, Kaushal Kishore Singh and Dinesh Singh (PWs 1, 2 and 4), the non-examination of Majid and Suresh is not in any way prejudicial to the prosecution case. 55. There are a dozen small mud houses of Harijans in this Harijan Toli. They are poor labourers. The men-folk would have gone in the evening hours to collect their daily wages and to make purchases of daily needs, and their ladies would have been busy outside in the field to collect grass for their goats and cows. The residents of Harijan Toli might not be there at their to come forward and to witness this occurrence on the cries of Shambhu Prasad Singh. 56. Besides, these three eye-witnesses, Fateh Bahadur Singh (PW 10), stated that he saw the accused persons Pati Bhar, Deou Bhar, Vidya Kurmi Bhola Sah, Bhanu Bhagat and Amarnath Yadav and a couple of other persons running away in front of him. Further, the witness Raja Singh (PW 3), Narmadeshwar Pd. Singh (PW 6) and Virendra Singh (PW 6) had stated on oath that they arrived soon at the place of occurrence and they saw Shambhu Prasad Singh was injured and bleeding lying on the rickshaw and his son Bhola Singh was there who told them that Vidya, Deou Bhar, Bhola Sah, Pati Bhar, Manu Bhar and Bhanu Bhagat, Amar Yadav and three to four other persons assaulted his father and ran away. 57. The civil litigation was going on amongst the family members with Shambhu Prasad Singh ; and at some point or in the past as there might be a business rivalry with Vinay Jain relating to plying of bus on a particular road, but no such circumstances had been brought on record which would have agitated the wind of the relations/persons who were carrying on litigation with Shumbhu Prasad Singh or of Vinay Jain so as to commit the murder of Shambhu Prasad Singh. 58. Lastly, the advocate for the appellants urged that the sunset started while this occurrence took place, and there was little opportunity to recognise the assailants from a distance of fifty feet or about by Dinesh Sinph (PW 4), and, thus, benefit of doubt be awarded to the accused appellants. 58. Lastly, the advocate for the appellants urged that the sunset started while this occurrence took place, and there was little opportunity to recognise the assailants from a distance of fifty feet or about by Dinesh Sinph (PW 4), and, thus, benefit of doubt be awarded to the accused appellants. On that quiet village road, Ravi Bhushan Singh (PW 1) heard the loud cries and utterances of his victim father "Aahe Baap Deou Vidya Maar Dehalas" and Ravi Bhushan Singh rushed ahead to save his father, Ravi Bhushan Singh was coming from behind, and he saw with his own eyes that the accused appellants Deou and Vidya were assaulting his father on the head from the front side of his father. Obviously, Ravi Bhushan Singh had every opportunity to recognise Deou and Vidya amongst the assailants of his father who were the residents of his village, and thus known from before, though the sunset started. This witness PW 1 Ravi Bhushan Singh told the names of Deou and Vidya amongst the assailants, and Ravi Bhushan Singh mentioned their names in the First Information Report as well. The other witness Dinesh Singh (PW 4), a resident of the nearby neighbouring village saw these assailants making assaults on Shambhu Prasad Singh from a distance of fifty feet between 6 p.m. and 6.15 p.m, in the evening. The light of setting sun was ample enough at the scene of occurrence for these witnesses Dinesh Singh (PW 4) and Kaushal Kishore Singh (PW 2) as well to recognise assailants Deou Bhar and Vidya Kurmi. The charge of commission of murder of Shambhu Prasad Singh is established beyond doubt against Deou Bhar and Vidya Kurmi. 59. The advocate for the appellants Bhola Sah and three others (of Criminal Appeal No. 80 of 1993) suggested that these accused appellants seem to be implicated on suspicion, and urged looking to the situation of the injuries on the deceased which were on head and forehead and one injury on left hand (probably the victim received when he raised the hand to save the head from the assaults), it seems that the repeated assaults were caused by few persons at the same upper part of the body ; and had all the accused appellants assaluted there would have been injuries in the normal course on shoulder, upper back and chest and thighs and legs. 60. 60. It seems that the assaults on the victim Shambhu Prasad Singh were caused by Deou Bhar and Vidya Kurmi only whom the victim named loudly as assailants while he was being assaulted. 61. The prosecution has hardly led any reliable evidence to establish that the accused appellants formed an unlawful assembly at the house of Bhola Sah with the object to commit the murder of Shambhu Prasad Singh. 62. Thus, the participation of Bhola Sah, Bhanu Bhagat, Manu Bhar and Pati Bhar in the commission of the murder of Shambhu Prasad Singh is not proved beyond all doubt by the prosecution, 63. There are no circumstances on record in this case as to warrant the punishment of death sentence to these accused appellants Rajdeo Bhar alias Deou Bhar and Vidya Kurmi. 64. Accordingly, the accused-appellants Rajdeo Bhar alias Deou Bhar and Vidya Kurmi (of Criminal Appeal No. 49 of 1993) are held guilty for the offence of the commission of murder of Shambhu Prasad Singh punishable under Section 302 read with Section 34, IPC and are awarded the sentence of life imprisonment. 65. The accused appellants Bhola Sah, Bhanu Bhagat, Manu Bhar and Pati Bhai (of Criminal Appeal No. 80 of 1993) are hereby acquitted of all the charges. 66. With this modification in the sentence, Criminal Appeal No. 49 of 1993, filed by Rajdeo Bhar alias Deou Bhar and Vidya Kurmi, is hereby dismissed. 67. Criminal Appeal No. 80 of 1993, filed by Bhola Sah, Bhanu Bhagat, Manu Bhar and Pati Bhar, is hereby allowed. 68. Death Reference No. 1 of 1993 is hereby rejected.