Judgment R.N.Sahay, J. 1. In Sessions Trial No. 361 of 1991 six persons were placed on trial for the offence punishable under Section 302/149, Indian Penal Code. Appellant Birendra Choubey was also charged under Section 307, Indian Penal Code and Section 27, Arms Act. Appellant Naga Rai was also charged under Section 27, Arms Act Learned Sessions Judge, Arrah by judgment pronounced on 7th January, 1994 convicted all the accused persons under Section 302/149, Indian Penal Code and sentenced them to life imprisonment. Appellant Birendra Choubey was further convicted and sentenced to seven years imprisonment for the offence under Section 307, Indian Penal Code and also two years prison term under Section 27, Arms Act. Appellant Naga Rai was also convicted and sentenced two years imprisonment for the offence under Section 27, Arms Act. 2. In Criminal Appeal No. 13 of 1994, the appellants are Basisth Rai, Nandjee Rai and Ram Rup Tatwa. All of them are on bail. Appellant Ram Rup Tatwa died during the pendency of this appeal and this appeal, so far appellant is concerned stand abated. In Criminal Appeal No. 14 of 1994, Birendra Rai is the sole appellant. He is also on bail. In Criminal Appeal No. 25 of 1994, Naga Rai is the appellant, whose bail was refused by this Court. This appellant has remained in custody for about eight years. In Criminal Appeal No. 97 of 1994, appellant is Birendra Choubey, who is also on bail. 3. The case of the prosecution, in brief, is that in between the night of 3/9.3.1991 the house of Girishanand Rai in village Hatpokhar, which is at a distance of 6 kms. from Jagdishpur police station, was attacked by armed miscreants. Triveni Rai, young son of Girishanand Rai aged 21 years was shot dead in very presence of his father. Girishanand Rai, who was Assistant in Adult Education Department, had also received serious injuries. The other inmates of the house also witnesses the occurrence. The villagers arrived after the occurrence. Triveni Rai and Girishanand Rai were taken to Sadar Hospital, Arrah but Triveni Rai died on the way to hospital. Grishanand Rai, however, survived to narrate the occurrence. 4. Syed Ziaulla (PW 6), Assistant Sub-Inspector, visited the Arrah Sadar Hospital at 6.00 a.m. and recorded the First Information Report of the occurrence given by Girishanand Rai. Triveni Rai and Girishanand Rai were taken to Sadar Hospital, Arrah but Triveni Rai died on the way to hospital. Grishanand Rai, however, survived to narrate the occurrence. 4. Syed Ziaulla (PW 6), Assistant Sub-Inspector, visited the Arrah Sadar Hospital at 6.00 a.m. and recorded the First Information Report of the occurrence given by Girishanand Rai. According to First Information Report, Girishanand Rai was sleeping in a room inside his house with his son Triveni. At about 12.30 or 1.00 a.m., he felt presence of some persons in his courtyard and realised that dacoits had raided his house. The dacoits succeeded in breaking open the door of the room in which they were sleeping. Girishanand Rai and his son Triveni Rai made an attempt to run away from the room but in the meantime, appellant Naga Rai opened fire injuring Triveni Rai. Triveni Rai become restless and ran towards upstairs followed by the informant. At this point of time appellant Birendra Choubey opened fire with his gun. The informant Girishanand Rai was hit at his right shoulder, still both the injured, father and son fled upstairs from where he looked towards his courtyard. He had already identified Naga Rai and Birendra Choubey and others, who were identified, were Nandjee Rai, Basisth Rai and Ram Rup Tatwa. All the accused persons are co-villagers. In the meantime, there was hue and cry and appellant Naga Rai commanded his associates to disperse. The police after investigation found the prosecution case to be true and accordingly submitted charge-sheet against the appellants. In due course, the appellants were placed on trial before the learned Sessions Judge. 5. The prosecution, called eleven witnesses to prove the charges against the accused persons. Learned Sessions Judge found the prosecution evidence to be cogent and reliable and accepted the evidence in its entirety and convicted the appellants. 6. Triveni Rai was victim of homicide is proved beyond doubt by the medical evidence. Dr. Surendra Prasad Srivastava (PW 2) who preformed autopsy on the deceased Triveni Rai and found the following injuries : On external examination.(i) One lacerated would 1 /4" in diameter on the left side of the neck with inverted margin. But no charring of skin around the wound. The injury was communicating with neck cavity and chest cavity of the left side. But no charring of skin around the wound. The injury was communicating with neck cavity and chest cavity of the left side. (ii) One lacerated wound 1" in diameter on the right side of neck communicating with injury No. (i) with margin averted.On dissection.3rd and fourth cervical vertebra found fractured. According to the doctor, left side of chest cavity was full of blood and blood clots with laceration ofupper lobe of the left lung. Lever, spleen and kidnies were found pale. The bladder was empty. And stomach contained about 1/2 Oz of semi-digested food material. In the opinion of the doctor, cause of death was due to above mentioned injuries leading to haemorrhage caused by the fire-arm. According to him, the time elapsed since death was within 24 hours. The doctor has stated that the injuries were sufficient to cause death. He has proved the post-mortem examination report (Ext. 2). 7. Girishanand Rai, informant, was examined by Dr. Sushil Kumar Rungta (PW 1) immediately after he was admitted to Sadar Hospital and following injuries were found on his person : "Lacerated wound 3" x 3" x bone deep on top on outer aspect of right shoulder Margin of the wound was blackened and partially singed. According to him the X-Ray report showed multiple pellets in shoulder. In the opinion of the doctor the age of injury was within 12 hours at the time of examination. According to him it was caused by fire arm and the nature of the injury ws simple. Injury Report proved by the doctor which is Ext. 1." There cannot be any doubt that attempt was made on the left of Girishanand Rai but he was lucky to escape death. 8 Learned Sessions Judges verdict against the appellants is founded on the testimony of Bibhuti Rai (PW 7), Ashok Rai (PW 8), Samdeve Devi (PW 9) and Girishanand Rai (PW 10) the informant, who is no doubt star witness of this case. If his evidence is accepted, then conviction of the appellants is fully warranted. It is, however, necessary to give a brief summary of the evidence of these witnesses before considering the criticism advanced by the learned Counsel for the appellants against the evidence adduced by the prosecution. 9. Bibhuti Rai (PW 7) is uncle of the first informant. If his evidence is accepted, then conviction of the appellants is fully warranted. It is, however, necessary to give a brief summary of the evidence of these witnesses before considering the criticism advanced by the learned Counsel for the appellants against the evidence adduced by the prosecution. 9. Bibhuti Rai (PW 7) is uncle of the first informant. On the fateful night, he was sleeping in the exist room of the house where the occurrence took place. At about mid-night or shortly, thereafter, he woke up on barking of dogs and felt presence of some persons in the courtyard. Electric light was burning in court-yard. He peeped through the gap of the door and identified all the appellants. Apart from these appellants, he also saw 4-5 persons but he could not identify them, who were armed with fire- arms. He saw them pushing the door of the room in which Trivedi Rai and Girishanand Rai were sleeping He saw the door broken and also heard sound of two gun shots. After some time, miscreants came to entrance door and started pushing the door of his room. The bolt of the door was broken and the miscreants fled away through his room without causing any harm to this witness. After the miscreants retreated, this witness came to the courtyard and heard meaning sound from the upstairs. He went there and found Triveni Rai lying on the roof top having gun shot injuries in his neck. He heard Triveni Rai saying that Naga Rai shot him and he would take revenge from him. This witness also saw Girishanand Rai with gunshot injury. Girishanand Rai told him that Birendra Choubey had caused him gunshot injury. This witness was aged 80 years when he deposed in Court. In my opinion, his claim that he had identified the miscreants by peeping into the chinks of the door from his room is hardly believable. Even assuming that bulb was burning in the courtyard, it would not have been possible for this witness to have identified the appellants in dim light. Learned Sessions Judge accepted the evidence of this witness without construing his attention to this salient fact. 10. Ashok Rai (PW 8), son of Girishanand, a student of Jain College, Arrah, was aged about 15 years. He was sleeping with his mother in the room. He woke up on hearing the sound of firing. Learned Sessions Judge accepted the evidence of this witness without construing his attention to this salient fact. 10. Ashok Rai (PW 8), son of Girishanand, a student of Jain College, Arrah, was aged about 15 years. He was sleeping with his mother in the room. He woke up on hearing the sound of firing. He too peeped through the door and identified the culprits in the electric light burning in the courtyard. This witness stated that the accused persons noticed that some body was peeping through the door and threatened to shoot him. They disclosed that they have already killed his father and brother. He came out after the dacoits had left. He saw his injured brother crying with pain. Triveni Rai, though fully wounded by gunshot injury, disclosed that one Naga Rai had fired at him and he would take revenge from him. This witness stated that Triveni Rai was student of B.Sc. Hons. and he had joined Jain College, Arrah. He used to attend the college from his village. The deceased was involved in a criminal case and had been in jail custody. It was suggested to this witness that Triveni Rai was an accused in a kidnapping case. His father Girishanand Rai was in employee in Adult Education Office at Jagdishpur. He used to go to his office daily on cycle. Triveni Rai used to go to Arrah at 7.00 a.m. in the morning and return in the evening. This witness deposed that in 1987 there was an occurrence of theft in his house in which accused persons were named. Evidence of this witness is also not worthy of reliant It is difficult to accept that he con have identified the miscreants from room where he was sleeping. 11. Samdeva Devi (PW 9), wife of the informant also claimed to have identified the culprits from the room. It was a dark night as stated by this witness. The only means of identification was electric light burning in the angan. The accused persons were moving around in the courtyard. It was hardly possible for this witness to identify the miscreants in the dim light. This witness talked to several co-villagers about the occurrence and claimed to have told them the names of the accused persons. 12. The evidence of three witnesses discussed above is far from satisfactory and I feel no hesitation in rejecting their testimony. 13. It was hardly possible for this witness to identify the miscreants in the dim light. This witness talked to several co-villagers about the occurrence and claimed to have told them the names of the accused persons. 12. The evidence of three witnesses discussed above is far from satisfactory and I feel no hesitation in rejecting their testimony. 13. Now, the case rests on the testimony of Girishanand Rai the informant. The evidence of the informant has been discussed by the learned Sessions Judge in paragraphs 26 to 31 of the judgment and for the sake of convenience the relevant paragraphs are extracted below : "(26) Now, PW 10 Girisa Nand Rai is the first informant of the case. He has stated that the alleged occurrence took place in between the night of 8/9 of March, 1991 at about mid-night. He has stated that he, along with his son Triveni Rai was sleeping in a room after holding the door from inside, whereas his wife and his younger son Ashok were sleeping in another room. According to him, his uncle, Bibhuti Rai was sleeping in the exist room. He has stated that on the barking of dogs and after hearing the sound of jumping of some persons, in the courtyard he got up and awoke his son, Triveni Rai. According to him the electric bulb was burning both inside the room and in the courtyard. He has stated that there was some gap in between the doors through which he peeped in the courtyard to find that accused Naga Rai, Birendra Chaubey, Birendra Rai, Basisth Rai, Nandji Rai and Ram Rup Tatwa, all armed with fire-arms, were pushing together on his door. (27) He has stated that for some time he along with his son pushed the door from within but due to severe force from outside the hook of the door was broken. And thereafter his son Triveni Rai tried to flee away from the room. But, in the meantime accused Naga Rai opened fire with S.B.B.L. Gun which hit in his neck and blood started oozing out from the wound But still his son fled away and went upstairs. The first informant also followed his son. But in the meantime, he was also shot at by accused Birendra Chaubey which hit on his right shoulder. But, in the meantime accused Naga Rai opened fire with S.B.B.L. Gun which hit in his neck and blood started oozing out from the wound But still his son fled away and went upstairs. The first informant also followed his son. But in the meantime, he was also shot at by accused Birendra Chaubey which hit on his right shoulder. At this stage, the witness has showed the sign of his wound which is still present on his right shoulder. (28) The first informant has stated that he peeped from his rooftop upon which accused Naga Rai ordered his associates to go upstairs and finish them. Thereafter 4 to 5 miscreants went upstairs but since both father and son were lying unconscious on the rooftop, they returned back with their utterances the work had been finished. This witness has stated that face of none of the dacoits was covered. Thereafter, they retreated from the house after breaking open the hook of the exit door. After the dacoits had retreated the first informant stood up on his rooftop when his son was uttering "accused Naga had shot at him, therefore, he would take revenge from him". (29) He has further stated that after some time his uncle Bibhuti Rai, his younger son Ashok Rai and his wife Samdeva Devi went upstairs and asked as to who had shot at him to which he replied that it was accused Birendra Chaubey. Then, his uncle and his son, Ashok Rai took his injured son Triveni on downstairs. Then, some of the co-villagers came over there and both the first informant and his injured son,, Triveni Rai were carried on two different cots upto the road where Triveni said that some days back accused Naga had threatened him to kill. Thereafter, they were being taken to Sadar Hospital Arra. But his son Triveni Rai died on way to hospital. (30) Then, the first informant was given medical treatment at Sadar hospital Arra where his fardbeyan was recorded by ASI Town RS. Ara. His statement was read over to him. And he put his signature after finding that the same was correctly recorded by the police. (31) The witness has stated that some 5 to 6 years before the present occurrence accused Naga Rai, Birendra Rai and Birendra Chaubey had committed theft in his house for which a case was registered against them. His statement was read over to him. And he put his signature after finding that the same was correctly recorded by the police. (31) The witness has stated that some 5 to 6 years before the present occurrence accused Naga Rai, Birendra Rai and Birendra Chaubey had committed theft in his house for which a case was registered against them. But the police, however, submitted that report after investigation. And this is reason why the accused persons wanted to commit his murder and that of his son." 14. According to the testimony of the informant, he had identified the culprits when they were standing in the courtyard. He peeped through the chink of the door before it was broken by the miscreants. Triveni Rai made a bid to run away but in the meantime Naga Rai shot at him which hit at his neck. It started bleeding profusely still he managed to run away. This witness followed him and he was also shot at by Birendra Choubey at his right shoulder. Both Triveni Rai and the informant ran to upstairs. On the command of Naga Rai 4 or 5 dacoits came to the roof and found both of them senseless. He told that work has been finished and left the place. After the dacoits left, this witness got up. He heard Triveni uttering that Naga shot him and he would take revenge. 15. Viveka Nand Rai (PW 11) on the relevant date was Sub- Inspector of Police attached to Jagdishpur Police Station. On the day of occurrence itself at 7.30 a.m, he had heard a rumour to the effect that some incident has taken place in village Hatpokhar in course of which some persons have received severe injuries by gun shot. Village Hatpokhar is only at a distance of 6 kms. from Jagdishpur Police Station. It is rather starting that this Police Officer came to know about the occurrence in the morning of the occurrence by which time FIR of the occurrence had already been recorded at Sadar Hospital Arrah by Syed Ziaullah, A.S.I. The Sub-Inspector proceeded to place of occurrence village and reached there at 8.00 a.m. He wished to record the fardbeyan of Ashok Rai, one of the eyewitness but he was informed that his father Girishanand Rai has given the version of the occurrence at Sadar Hospital Arrah. He took the statement of Ashok Rai. He took the statement of Ashok Rai. He started investigation without taking the trouble to go to Arrah to collect the fardbeyan of Girishanand Rai and to take his statement. This Police Officer was so inefficient that he started investigation without knowing whether the case has been registered at Arrah or not. He, however, thoroughly investigated the place of occurrence which must have taken 2 to 3 hours. It is, however, apparent that Ashok Rai had not gone to Arrah along with the injured father and brother. He was also not aware that his brother had succumbed to his injuries. How Ashok Rai could know that fardbeyan of his father was recorded at Arrah by town police is not clear. The evidence of Vivekanand Rai about his inspection of place of occurrence and his inspection of place of occurrence and his findings has been considered in paragraphs 32 to 38 of the judgment which for the sake of convenience are reproduced below : "32. And PW 11 Viveka Nand Rai is the I.O. of the case. He has stated that on 9.3.1991 he was posted as Sub- Inspector of Police at Jagdishpur P.S. He has stated that on that day at about 7.30 a.m. he heard a rumour to the effect that there had been firing at village Hatpokhar in which some persons had sustained gunshot injuries. Therefore, in order to verify the matter he, along with constable and one Gulzar Manjhi, ASI of Police set out from the P.S. and reached to village Hatpokhar at about 8 a.m. He wanted to take fardbeyan of Ashok Kumar Rai. But, he told him that a police officer of Town P.S. Ara had already taken the statement of his injured father, Giris Nand Rai in Sadar Hospital Ara itself. Therefore, he recorded the statement of Ashok Kumar Rai, and thereupon he started investigation of the case. He has stated that he visited the alleged P.O. as indicated by the witnesses. According to him, the alleged P.O. is the residential house of Giris Nand Rai at village Hatpokhar. It is a pacca built house which faces east. And there is veranda like dalan in the north of the house. According to him the exit room of the house opens towards dalan in the North, towards courtyard in the west and towards east as main entrance of the house. It is a pacca built house which faces east. And there is veranda like dalan in the north of the house. According to him the exit room of the house opens towards dalan in the North, towards courtyard in the west and towards east as main entrance of the house. All the aforesaid three doors are fitted with door planks. (33) According to the I.O., there are three rooms towards south of the courtyard. Out of them the eastern room is used as store room. Then, the middle room was fitted with grill gate. The I.O. has stated that on the wall of the middle room there hung an electric bulb at the height of about 14 ft. (34) The I.O. has further stated that, in the western room which faced north and opens in the courtyard, a broken hook of the door and found lying. According to him, a piece of broken wood in the length of about 1 ft. was also found lying in the courtyard which was originally fitted in the door. He has also stated that he found the blood clots on the stepping door of which the sample was taken by him. The I.O. also found two cots with bed-sheets in that room. He also found a T.V. Set, a battery, a Soni sound box and some boxes kept in the room. According to him two table fans were also kept over there. He has stated that he found the sign of pellets by firing with 12 bore ammunition at the height of 6 to 9 ft. in the radius of 3 ft. According to him, due to firing by pellets here and there some plasters were erased on the wall. He has also stated that some pellets, and empty ammunition of 12 bore, a front end of bullet and wade of 12 bore were found over there, which were taken charge by him. According to him, he prepared a seizure list for these articles in presence of two independent witnesses namely Gajendra Shankar and Om Prakash Pd. Tatwa. He has proved the seizure list which is Ext. 4/4 in this case. (35) The I.O. has stated that in this very room he found a piece of flesh fixed in the south-west corner. And there was blood-stain on the floor of the room which was also taken charge of by him. Tatwa. He has proved the seizure list which is Ext. 4/4 in this case. (35) The I.O. has stated that in this very room he found a piece of flesh fixed in the south-west corner. And there was blood-stain on the floor of the room which was also taken charge of by him. According to him, he did not find any sign of breaking or lifting of boxes in the room. The I.O. has stated that there is cattle-shed contiguous north of this room which faces east. According to him, on the outer wall of this room he found a ditch at the height of about 3 1/2 ft. (36) The I.O. has further stated that he found the trial of blood-stain on the staircase which is towards north of the courtyard. According to him, he found plenty of blood in diameter of about 1 ft. on the roof top about 3 ft. south of the northern extremity of the roof. He has stated that there is a boundary wall towards north of the courtyard which is about 8 ft. 9 inches in height. The I.O. has found a khanti of iron, a torch of 3 cells and a socket fitted pipe in the courtyard for which he prepared a seizure list which is Ext. 4/5 in this case. (37) He has stated that he also found sign of gun shot on the western wall of the. exit room. The I.O. has further stated that he examined other witnesses and re-examined the first informant and received inquest report, injury report of the first informant and post-mortem examination report of the deceased. He has also proved the formal FIR which is Ext. 10 in this case. (38) The I.O. has stated that he had searched the house of accused Basisth Rai and Nandji Rai and recovered one SBBL Gun No. 455 and its licence No. 179/59 in presence of two independent witnesses and prepared search list for the same. He has proved the search list which is exhibit 4/6 in this case. The I.O. has further stated that after completing investigation he submitted charge-sheet in this case against the accused persons." 16. The evidence of I.O. shows that there was firing in the room where Girishanand Rai and Triveni Rai were sleeping pellets and empty cartridges was also found there. He also found piece of flesh attached to south west corner. The I.O. has further stated that after completing investigation he submitted charge-sheet in this case against the accused persons." 16. The evidence of I.O. shows that there was firing in the room where Girishanand Rai and Triveni Rai were sleeping pellets and empty cartridges was also found there. He also found piece of flesh attached to south west corner. He also found blood-stains. He found trial of blood-stain on the stair case towards north of the courtyard. The I.O. did not find any sign of breaking of boxes in the house. 17. Ganga Vishnu Rai (PW 3) was a retired Sheristedar of Civil Court, Arrah. His evidence has been treated as formal in nature. According to the defence, he has been instrumental in fabricating this case against the appellants. This witness was residing at Arrah and was witness to the inquest. He is distantly related to the informant. This witness learnt about the murder of Triveni Rai from Professor Dharmraj Rai (PW 4), a retired Professor of Jain College, Arrah. He was informed at 6.30 a.m. This witness accompanied by Professor Dharmraj Rai went to the hospital. This witness was asked in cross-examination whether Dharmraj Rai was an accused in a murder case, which had happened 3-4 years earlier? He said that father and uncle of Dharmraj Rai were accused. Dharmraj Rai (PW 4) retired Professor of Jain College, Arrah had signed the fardbeyan as witness. He also signed on the inquest report. This witness is uncle of deceased Triveni Rai and brother of the informant Girishanand Rai. This witness (PW 4) was asked whether the deceased Triveni Rai was involved in a case of abduction? He said that he was not aware of this fact and asserted that he was not concealing the fact that his father and uncle Bibhuti Rai (PW 7) were accused in the murder of one Bittan Choubey. His father and uncle were acquitted. He denied the suggestion that Triveni Rai had been assassinated by a criminal gang and no body had seen the occurrence. 18. Five witnesses were examined on behalf of the defence to counter the prosecution case and to establish that the appellants have been falsely implicated in this case. Dharichhan Tatwa was examined as DW 1. He was chawkidar No. 5/1. He deposed that Triveni was killed by dacoits. This witness had visited the house of Triveni Rai in the mid-night. 18. Five witnesses were examined on behalf of the defence to counter the prosecution case and to establish that the appellants have been falsely implicated in this case. Dharichhan Tatwa was examined as DW 1. He was chawkidar No. 5/1. He deposed that Triveni was killed by dacoits. This witness had visited the house of Triveni Rai in the mid-night. He had seen Triveni Rai being carried on a cot. He did not find Triveni Rai speaking anything. This witness enquired from the people assembled there but no body said anything. He had informed the Officer-in-charge of Police Station. This witness was bold enough to say that the Sub-Inspector of Police had come to Hatpoikhar with him. There had been occurrence of theft in the house of Girishanand Rai earlier and the matter was reported at the Police Station and the cases of theft and dacoity are pending against Nandjee, Naga Rai and others. 19. Ram Chandra Choubey (DW 2) was examined to prove the alibi of Nandjee Rai and Basisth Rai. He said that on 8.3.1991 he along with Nandjee Rai and Basisth Rai had gone to village Bachari in the house of Raj Ballabh Rai to settle the marriage of daughter of Basisth Rai with the son of Raj Ballabh Rai. Faldan ceremony was performed on 8.3.1991 in the night and they returned on 9.3.1991 to Hatpokhar and learnt about the occurrence. On 10.3.1991 Basisth Rai had been arrested by the police near the Canal. 20. Zaukhi Sao (DW 3) has also supported the evidence of Ram Chandra Choubey (DW 2) about the alibi of Nandjee Rai and Basisth Rai. Raj Ballabh Rai (DW 4) further corroborated the evidence of DW 2. 21. To sumup the evidence ; (i) The First Information Report disclosed offence under Section 396, Indian Penal Code and a case under that section was registered against the appellants except Birendra Rai, who was not named. During investigation, Investigating Officer found that no dacoity had been committed and hence charge-sheet was submitted under Section 302 Indian Penal Code. (ii) All the appellants are co-villagers of the informant. The occurrence took place in the dead of night. Some of the appellants had been implicated in a theft case by the informant in which the police submitted final report. This is said to be the motive for the brutal murder of Triveni Rai. (ii) All the appellants are co-villagers of the informant. The occurrence took place in the dead of night. Some of the appellants had been implicated in a theft case by the informant in which the police submitted final report. This is said to be the motive for the brutal murder of Triveni Rai. None of the appellants had concealed their identity and identification is claimed on a single electric bulb illuminating the courtyard. (iii) No villager or relation of the informant sent any message of occurrence to the nearest Police Station i.e. Jagdishpur Police Station which is at distance of 6 kms. First Information Report was recorded at Arrah Sadar Hospital where town police had reached. Police Officer of Jagdishpur Police Station had reached the house of the informant at 8.00 a.m. No information was sent from Arrah to Jagdishpur Police Station. (iv) Deceased Triveni Rai made dying declaration. He was murmuring that he would take revenge from Naga Rai. This evidence, however, is not of much significance since there were eye-witnesses who claimed to have identified the murderer but there is no independent witness to support or corroborate that Triveni Rai had disclosed the names of the appellants to any co-villager. (v) A SBBL gun was recovered from the house of Basisth Rai by the Investigating Officer when his house was searched but the gun was not sent to the Ballistic Expert for examination. 22. Prosecution evidence was attached from all the corners by the defence before the trial Judge. Firstly, the prosecution has failed to prove the motive for the brutal murder of Triveni Rai. Learned trial Judge did not attach importance to this plea because in his opinion even if the prosecution had failed to establish the motive, it would not affect the prosecution case if the evidence was otherwise reliable. It was next argued before the trial Judge that the case of dacoity had been converted into a murder case after due deliberation. Though a case under Section 396, IPC was registered, story of dacoity was given a go-bye. The prosecution story, therefore, deserves to be viewed with grave suspicion. Learned trial Judge brushed away the significant fact that Birendra Rai was not named in the FIR Bibhuti Rai (PW 7) gave statement after six days of the occurrence and there is no reasonable explanation for the inordinate delay. The prosecution story, therefore, deserves to be viewed with grave suspicion. Learned trial Judge brushed away the significant fact that Birendra Rai was not named in the FIR Bibhuti Rai (PW 7) gave statement after six days of the occurrence and there is no reasonable explanation for the inordinate delay. According to the version in the FIR, informant Girishanand Rai identified two persons from the room where he was sleeping along with the deceased and three of them from the rooftop but in his statement before the Court he claimed to have identified all the six persons from the room itself. This was vital contradiction. According to the trial Judge, his attention towards this contradiction was not drawn and thus this argument was dismissed. The Investigating Officer had found the bulb hung at the height of 4 ft. in the courtyard. There is no evidence that the bulb was in use. The trial Judge had not placed reliance on the alleged dying declaration by the deceased since the injuries caused to him was so serious that he could not have been in a position to speak any thing. 23. Mr. Rajendra Singh, senior Advocate from Supreme Court appearing in support of these appeals, attached the prosecution evidence. He submitted that the prosecution evidence is totally unworthy of reliance as it suffers from a number of infirmities which was highlighted before the trial Judge. Mr. Singh submitted that it is clear from the medical evidence that the deceased was killed from a distance while he was on the roof of his house and the shooters were on the ground. It is submitted that the story that the deceased had received injury in the room and had gone upstairs thereafter is falsified from the evidence of the Investigating Officer, who had not found any trial of blood. in the room of the house. He found blood only at one place on the roof which shows that the deceased was shot down by the culprits and he died instantaneously. The finding of the doctor suggests that the deceased could not have made any statement after the received injuries because the third and fourth vertical vertebra were found fractured as well as blood clot with laceration were found in the upper lobe of the left lung of the deceased. The finding of the doctor suggests that the deceased could not have made any statement after the received injuries because the third and fourth vertical vertebra were found fractured as well as blood clot with laceration were found in the upper lobe of the left lung of the deceased. To speak, a person has to breathe and store air in lungs, which could not have been possible in view of the nature of injury found on the person of the deceased. 24. It was further argued that the evidence indicate that neither PW 7 nor PW 8 nor PW 9 were present in the house where the alleged occurrence had taken place. This finds support from the evidence of the Investigating Officer (PW 11) who had found only two chowkis in a room of the house of the informant (PW 10). It is also argued that the evidence of electric bulb burning in the house at the time of occurrence is not corroborated even by the objective findings of the Investigating Officer as he failed to take note of the electric line and the electric wire from the pole near the house of the informant. The Investigating Officer had also found a T.V. Set with battery in the room. 25. It was next submitted that it was impossible for any person much less the informant to identify any accused person through the door planks and as such the evidence of the Informant regarding identification of the accused persons is also unreliable and fit to be rejected. Mr. Singh next submitted that the antecedents of the deceased were not clean and he was killed by some unknown person, who were not identified by the prosecution party and the present prosecution was launched after due deliberation and experts advice, implicating the appellants falsely. 26. Mr. Singh further submitted that the informant (PW 10) admitted that the deceased was involved in a kidnapping case and he was taken into custody and thereafter, he left staying at Arrah. PW 8 showed complete ignorance of case instituted against the deceased and the deceased having been taken into custody. The informant admitted in his evidence that the accused persons had never made any attempt to assault him in between the institution of the theft case against them and the present case. PW 8 showed complete ignorance of case instituted against the deceased and the deceased having been taken into custody. The informant admitted in his evidence that the accused persons had never made any attempt to assault him in between the institution of the theft case against them and the present case. The evidence of the informant is that the deceased was fired from a distance of 3 1/2 ft. But, the medical evidence completely falsified the evidence of the informant so far actual assault on the deceased is concerned inasmuch as there was no charring or blackening of the injury found on the person of the deceased. It was submitted that according to the evidence of the informant, he and Triveni Rai along with others had arrived in Arrah Sadar Hospital at about 3.00 a.m. and his brother Dharamraj Rai (PW 4) and his relation Ganga Bishun Rai (PW 3) had arrived there three hours thereafter. This indicates that the fardbeyan was prepared only after PWs 3 and 4 had arrived at Sadar Hospital Arrah and FIR was recorded after due deliberation. It was argued that earlier version of the occurrence had come from Ashok Rai (PW 8) but there is no explanation as to why the Investigating Officer did not record the statement of Ashok Rai. 27. Mr. Rana Pratap Singh, learned Senior Counsel for the inform ant argued that the case of the prosecution is proved to the hilt and conviction of the appellants is fully warranted and it should not be interfered with. 28. Mr. Rajendra Singh, learned Senior Counsel for the appellants placed reliance on Ishwar Singh v. State of U.P., AIR 1976 SC 2423 , in support of his contention that the I.O. seized the fire-arm from the house of the appellant Basisth Rai but it was not sent to the Ballistic Expert and further there is no medical evidence that the injuries sustained by the deceased and the injured could have been caused with gun. In the present case, FIR was despatched to the CJM on 9.3.1991 by special messenger which was received in the Court of CJM after two days i.e. on 11.3.1991. Therefore, it was contended that the FIR was not despatched on 9.3.1991. 29. In the present case, FIR was despatched to the CJM on 9.3.1991 by special messenger which was received in the Court of CJM after two days i.e. on 11.3.1991. Therefore, it was contended that the FIR was not despatched on 9.3.1991. 29. In State of Punjab v. Pritam Singh, AIR 1977 SC 2005 , the Supreme Court held that when there is serious enmity between the parties, and also the motive for the informant to implicate the accused and motive for accused to kill informant equally balanced, then the truth of prosecution case should be ascertained from he surrounding circumstances. Learned Counsel for the appellants submitted that the case of the prosecution is highly doubtful on account of various infirmities as indicate above. The Supreme Court in this case doubted the veracity of the prosecution case having regard to the cumulative effect of certain circumstances and the fact that the testimony of the witnesses examined on behalf of the prosecution is wholly interested and of partisan nature and there was no corroboration. 30. On careful analysis of the evidence brought on record by the prosecution. I am of the opinion that it would be hazardous to sustain the conviction of the appellants in view of the infirmities noticed above. The evidence that the co-villagers committed daring act without concealing their identity cannot be accepted unless the evidence is cogent and convincing and free from any discrepancy. There is every possibility that actually dacoits was committed in the house of the informant and in fact a case under Section 396, IPC was registered. But, the culprits had attacked the house of the informant only for the purpose of murdering Triveni Rai, the informant would not have said that dacoity was committed in his house by the accused persons. If Naga Rai and his companions wanted to book Triveni Rai, they had enough opportunity to do so. The deceased was staying at Arrah and he vised to go to college daily. I am not prepared to accept the evidence that the accused persons raided the house of the informant and committed murder of Triveni Rai. The antecedents of Naga Rai is also not clean rather it is suspicious and his implication or suspicion cannot be ruled out. The appellant Birendra Rai was not named in the FIR and he was implicated in course of investigation. The antecedents of Naga Rai is also not clean rather it is suspicious and his implication or suspicion cannot be ruled out. The appellant Birendra Rai was not named in the FIR and he was implicated in course of investigation. I have already held that the evidence of Ashok Rai (PW 8), Bibhuti Rai (PW 7) and Samdeva Devi (PW 9) they identified the culprits is not worthy of reliance. Then, it would not be safe to. convict the appellants on the testimony of Girishanand Rai the informant without there being independent corroboration at least on the fact that he had disclosed the names of the culprits to his neighbours. No information was sent to the nearest Police Station i.e. Jagdishpur Police Station by any villager. First Information Report was given at Sadar Hospital, Arrah. Since the evidence of the eye-witness Girishanand Rai has become doubtful, the conviction of the appellants has to be set aside giving them benefit of doubt. The judgment of the learned Sessions Judge is highly unsatisfactory. He has not analysed the evidence in right prospective. 31. In the result, all the four appeals are allowed and the judgment and order of conviction recorded by the learned Sessions Judge, Arrah is set aside and the appellants are acquitted of the charges giving them benefit of reasonable doubt. Appellant Naga Rai in Criminal Appeal No. 25 of 1994 is in Jail custody. He is directed to be released forthwith, if not required in any other case. All the remaining appellants are on bail. They are discharged from the liability to their bail bonds. Appellant Ram Rup Tatv/a of Criminal Appeal No. 13 of 1994 died during the pendency of this appeal. So Criminal Appeal No. 13 of 1994 so far appellant Ram Rup Tatwa is concerned, stands abated. B.P.Sharma, J. 32 I agree.