ORDER : M.K. Mukherjee and A.P. Misra, JJ. - The five appellants in these appeals were placed on trial before an Additional Sessions Judge of Rohtas, for committing the murder of one Kapildeo Mishra in furtherance of their common intention. The trial ended in conviction of all of them under Section 302/34, IPC and three of them also under Section 27 of the Arms Act. Against their convictions they preferred separate appeals before the High Court which were dismissed by a common judgment. Hence these appeals at their instance. 2. The prosecution case briefly stated is as under : (i) On June 26, 1976 at or about 7.15 a.m. Ayodhya Mishra (PW 5) along with his brother Kapildeo Mishra (the deceased) left their house to go to Sasaram. On their way when they reached the fodder house of Ram Raj Pandey (not sent up for trial) he came out along with Kalika Pandey and Hriday Pandey (the appellants in Criminal Appeal No. 510 of 1997), Dukh Dawan Dusadh and Lakshman Tiwari (the appellants in Criminal Appeal Nos. 565-566 of 1997), and one Ram Pandey and rushed towards Kapildeo. While the appellants Hari Nath Pandey had a pistol with him, Hriday Pandey and Kalika Pandey had guns, Ram Raj Pandey, Ram Pandey and Dukh Dawan Dusadh had garasas and Lakshman Tiwari had a bhala. Hari Nath Pandey fired a shot at kapildeo as a result of which he fell down. Hriday Pandey and Kalika Pandey then fired at him from their guns and others assaulted him with their respective weapons. Seeing such assault PW 5 raised shouts hearing which Phulchand Lohar and Indradeo Mishra came to the spot. The miscreants then took to their heels. Ayodhya Mishra then went to Sasaram Police Station and reported the incident to Sub-Inspector (S.I.) Maha Nand Singh. (ii) Accompanied by PW 5 S.I. Singh rushed to the scene of offence and recorded his statement. He forwarded the statement to the Police Station to formally register a case and took up investigation. He held inquest upon the dead-body and forwarded it for post-mortem examination. From the scene of offence he seized two empty cartridges, a pair of shoes and some bloodstained earth. On completion of investigation he submitted charge-sheet against the five appellants and Ram Pandey, who died after the commitment of the case to the, Court of Session. He held inquest upon the dead-body and forwarded it for post-mortem examination. From the scene of offence he seized two empty cartridges, a pair of shoes and some bloodstained earth. On completion of investigation he submitted charge-sheet against the five appellants and Ram Pandey, who died after the commitment of the case to the, Court of Session. (iii) The motive that was ascribed for the above murder was a long-standing enmity between the parties and various litigation's. 3. The appellants pleaded not guilty to the charges levelled against them and contended that they had been falsely implicated due to enmity. In support or their respective cases, the prosecution examined nine witnesses and the defence two. Of the witnesses examined by the prosecution Indradev Mishra (PW 1). Ayodhya Mishra (PW 5) and Phulchand Sharma (PW 6) deposed as eye-witnesses. 4. We have heard the learned Counsel appearing for the parties and with their assistance perused the judgments of the Courts below as also the material evidence on record. 5. That Kapildeo Mishra met with a homicidal death on the fateful day stands established by overwhelming evidence on record. The uncontroverted evidence of Dr. Sharad Prasad Singh (PW 7), who held the post-mortem examination, clearly proves that there were as many as 11 injuries on the person of the deceased. The evidence of the doctor further indicates that five pellets were recovered from the cavity of the stomach of the deceased. He opined that one of the injuries was caused by a firm arm, some of the other injuries by sharp cutting weapon such as garasa and the rest by hard and blunt substance such as lathi. Indeed this part of the prosecution was not challenged before us. 6. The crucial question that now falls for our determination is whether the prosecution has been able to conclusively prove that the appellants were responsible for the murder. Though PWs 2 and 5, the two brothers of the deceased, named all the appellants and Ram Pandey as the persons who assaulted the deceased, PW 6, who according to the prosecution was an independent witness, did not name appellant Lakshman Tiwari as one of the miscreants, much less, ascribe any role to him. This apart, we find that the claim of PWs 2 and 5 that he (Lakshman Tiwari) had assaulted the deceased with a spear is not supported by the medical evidence. This apart, we find that the claim of PWs 2 and 5 that he (Lakshman Tiwari) had assaulted the deceased with a spear is not supported by the medical evidence. In all such circumstances we feel that he is entitled to the benefit of reasonable doubt, notwithstanding the concurrent findings of the courts below in this regard. 7. Coming now to the two appellants in Criminal Appeal No. 510 of 1997, namely, Kalika Pandey and Hriday Pandey, we find that though they have been named by all the three eye-witnesses as having fired at Kapildeo from their guns, the doctor spoke of only one gun shot injury on the person of the deceased, which the prosecution attributed to the appellant Hari Nath Pandey. Besides, a salient feature of the case which makes the prosecution version of the incident as regards the role of the above two appellants in the incident suspect is that during the investigation in the case PW 5 lodged a formal complaint before the Chief Judicial Magistrate, Sasaram (Exh. A) wherein, while detailing his version of the incident and alleging that the investigation was perfunctory, he specifically stated that the above two appellants, namely, Kalika Pandey and Hriday Pandey, were armed with lathis - and not guns as testified by him and the other eye-witnesses during trial. When the above earlier statement of PW 5 is considered in the context of the fact that there was only one gun shot injury on the person of the deceased, it creates a reasonable doubt about the participation of these two appellants in the murder. Unfortunately these aspects of the matter were not properly appreciated by the courts below. 8. So far as the other two appellants are concerned, namely, Hari Nath Pandey (the sole appellant in Criminal Appeal No. 511 or 1997) and Dukh Dawan Dusadh (one of the two appellants in Criminal Appeal Nos. 565-566 of 1997), we find that it is the consistent evidence of the three eye-witnesses that the appellant Hari Nath Pandey fired at the deceased on his chest and the appellant Dukh Dawan Dusadh dealt several garasa blows upon him and their evidence stands amply supported by the medical evidence. We, therefore, find no reason to interfere with the concurrent findings recorded by the courts below as against them. 9. We, therefore, find no reason to interfere with the concurrent findings recorded by the courts below as against them. 9. On the conclusions as above, we allow Criminal Appeal No. 510 of 1997, set aside the conviction and sentence recorded against Kalika Pandey and Hriday Pandey and acquit them. Criminal Appeal Nos. 565-566 of 1997 are allowed in part - in that, the conviction and sentence recorded against the appellant Lakshman Tiwari are set aside, but those of Dukh Dawan Dusadh upheld. The other Criminal Appeal No. 511 of 1997 in which Hari Nath Pandey figures as the sole appellant is dismissed. Let Kalika Pandey, Hriday Pandey and Lakshman Tiwari, who are in jail, be released forthwith unless wanted in connection with any other case. Appeal partly allowed.