Judgment R.N.Sahay, J. 1. This appeal is by six convicted appellant against the verdict and sentence given by Ist Additional Sessions Judge, Gaya in Sessions trial No. 102 of 1997 (25 of 1985) who vide his judgment dated 4th January, 1986, convicted appellant No. 1 under Section 302, IPC and 27 of the Arms Act and sentenced him to undergo rigorous imprisonment for life and five years respectively. All other appellants were convicted under Section 302 read with Section 149 of the Indian Penal Code and were also sentenced to undergo rigorous imprisonment for life. Appellant Jagdep Yadav, Nathun Yadav and Brahmadeo Yadav were convicted under Section 148, IPC and were sentenced to undergo rigorous imprisonment for three years whereas other appellants were convicted under Section 147, IPC and were sentenced to undergo rigorous imprisonment for two years. All the sentences however are ordered to run concurrently. 2. The case of the prosecution has been narrated with precision in para 2 of the judgment under appeal, as extracted hereunder : "After sun set on 7.12.1974 two villagers of Wajidpur Ghosi police station of this district were returning from Tehta Bazar. They were Rajaram Singh (PW 6) and Sitaram Barhai (PW 7) as they were moving across the field they reached in the paddy field of one Ramsaran Yadav (deceased) of the same village. The said Ramsaran Yadav had left paddy crop in his field for drying after harvesting the same. Ramsaran Yadav who was at his field, suspected them to be thieves and therefore raise alarm.That led to some altercation and scuffle between Ramsaran Yadav and his brother Ganga Bisun Yadav on the one hand and Rajaram Singh and Sitaram Barhai on the other while Rajaram Singh and Sitaram Barhai were asserting that they were simply passing across the field, Ramsaran Yadav and his brother were alleging that they were committing theft of paddy crops from the field. In the scuffle Rajaram Singh had been slapped. The villagers separated two groups and pacified them. Early in the morning on the next, Ganga Bisun Yadav had gone to his master Sarwand Singh. There two persons of Bhumihar community, namely, Ramadhar Singh and Bijal Singh and slapped and assaulted Ganga Bisun Yadav alleging that he was brandishing garasa at the paddy field in the preceding evening. The villagers separated two groups and pacified them. Early in the morning on the next, Ganga Bisun Yadav had gone to his master Sarwand Singh. There two persons of Bhumihar community, namely, Ramadhar Singh and Bijal Singh and slapped and assaulted Ganga Bisun Yadav alleging that he was brandishing garasa at the paddy field in the preceding evening. It may be noted that Rajaram Singh belongs to Bhumihar community of the village, whereas deceased Ramsaran Yadav and Ganga Bisun Yadav belong to Yadava community of the same village. The villagers intervened and pacified the matter there as well. Later on, Ganga Bisun Yadav went home and narrated the incident to the other members of his community including Jagdeo Yadav. That accused annoyance to the Yadavas, particularly Jagdeo Yadav who went on the roof of his dalan and started hurling abuses on the Bhumihars of the village. At that, time, he was carrying his gun as well. One Rajballabh Singh another deceased had gone to a neighbour village Gambharpur to participate in a family Panchayat between Harikishun Thakur (PW 3) and his brother Arjun Thakur. When he returned to the village and found Jagdeo Yadav indiscriminately abusing the Bhumihars of the village from the top of his dalan, he went there to protest and dissuade him from doing so. That led to heated altercation threats and counter threats between them. Deceased Ramsaran Yadav also went there to intervene and request Rajballabh Singh to leave that place because tempers were running high among the Yadavas. It is said that Ramsaran Yadav was the bataidar of Rajballabh Singh. In course of exchange of words between Rajballabh Singh and Jagdeo Yadav, the latter aimed. his gun at the former and opened fire. However, the shot missed Rajballabh Singh and hit Ramsaran who was intervening. The said Ramsaran Yadav fell down on ground. Rajballabh Singh tried to lift Ramsaran Yadav, but in the meantime the other accused persons who were present in the dalan of Jagdeo Yadav, rushed in and caught hold of Rajballabh Singh and threw him on ground. Jag-deo Yadav ordered to finish Rajballabh Singh. Thereupon the other accused persons started conflicting lathi and garasa blow on Rajballabh Singh who became senseless. Thereafter, the accused persons dragged the bodies of both Ramsaran Yadav and Rajballabh Singh inside the dalan of Jagdeo Yadav and kept in two separate rooms. Jag-deo Yadav ordered to finish Rajballabh Singh. Thereupon the other accused persons started conflicting lathi and garasa blow on Rajballabh Singh who became senseless. Thereafter, the accused persons dragged the bodies of both Ramsaran Yadav and Rajballabh Singh inside the dalan of Jagdeo Yadav and kept in two separate rooms. Later on, in the evening it transpired that both the injured were dead. 3. The defence of the appellants was that in the night between the 7th and 8th of December, 1974 at about 3 or 4 a.m. the deceased Rajballabh Singh and other Bhumihars of Wajidpur has gone to commit dacoity at the dalan of accused Jagdeo Yadav who was sleeping in one of the rooms of that dalan. He had kept boxes etc. in the adjacent room and locked the same from outside. He woke up on. hearing the sound of breaking open of the door of the adjacent room and saw one dacoit, namely, Rajballabh Singh emerging from the room with a wooden box on his head. When he raised alarm the villagers including deceased Ramsaran Yadav, Nathun Yadav, Bindasaran Yadav, accused Kailash Yadav, Brahmadeo Yadav, Indradep Yadav, Basudeo Yadav, Jageshwar Yadav, Karu Yadav and Charitar Yadav arrived there. Deceased Ramsaran Yadav tried to apprehend Rajballabh Singh who was also carrying a gun. The said Rajballabh Singh shot deceased Ramsaran Yadav who fell down on the open space in front of the dalan. Thereupon, other villagers surrounded Rajballabh Singh and assaulted him by means of their weapons like lathies, garasa and spades and he died. The other associates of Rajballabh Singh who were about 13 to 14 in number, fled away. Later on they tried to take away the dead body of Rajballabh Singh and in their bid to do so, they also threw brick bats and opened a shot from gun but did not succeed in their attempt. A Sub-Inspector of Ghoshi police station arrived there at 4.15 p.m. on the next day and with him a first information report was lodged by Jagdeo Yadav. It is said that simply with a view to counter blast the case, the present instituted at the instance of informant at 11 p.m. on the same day the prosecution party concocted a case as referred to earlier. 4. It is said that simply with a view to counter blast the case, the present instituted at the instance of informant at 11 p.m. on the same day the prosecution party concocted a case as referred to earlier. 4. Ragho Singh of village Kora had conveyed an information at the Ghosi police station at 1.45 p.m. on 8.12.1974 that Rajballabh Singh was caught hold of by Jagdeo Yadav, who is absconder in many criminal cases, as a result of which serious tension was prevailing in between the two communities Bhumihar and Yadav of that village. S.I, Chand Gobind Singh also sent an information at the police station through the chowkidar that a case under Section 396 of the Indian Penal Code has been instituted for the commission of dacoity in the house of Jagdeo Yadav and that the dacoits have killed one villager and the villagers have also killed one dacoit and the tension was prevailing in the village on that account. This fact was also recorded as station diary entry No. 135 dated 8.12.1974. S.I. Chand Gobind Singh when reached in village Wajidpur he passed through the Bhumihar Tola of village Wajidpur along with Ram Naresh Singh, Mukhiya and there in the village he recorded the fardbeyan of Jagdeo Yadav at 4.15. p.m. on 8.12.1974. Jagdeo Yadav has stated in his fardbeyand that Rajballabh Singh along with other associates went to his Baithka with a view to commit dacoity in between the night of 7/8.12.1974. On hearing hulla villagers came and in course of scuffle Ramsaran Yadav, a neighbour who rushed to the place, was killed by gun shot fire by one of the dacoits, who was trying to escape with the boxes. The main dacoit Rajballabh Singh, who was also done to death by the villagers while he was engaged in the commission of dacoity. Some of the stolen articles, concerning the dacoity remained at the place of occurrence itself and in the morning when it was revealed that Rajballabh Singh, a dacoit has been killed there developed a serious tension which was created by the gang men of Rajballabh Singh. As there was serious tension in the village it was suspected that the dacoits may attempt to take away the dead body of Rajballabh Singh he remained in the village to keep a guard on the same. 5. As there was serious tension in the village it was suspected that the dacoits may attempt to take away the dead body of Rajballabh Singh he remained in the village to keep a guard on the same. 5. Chand Gobind Singh, S.I. recorded the fardbeyan of Jagdeo Yadav at 4.15 p.m. on 8.12.1974 but he did not visit the house of the deceased or examined any of his relation. In the meantime K.D. Mallick, PW 14, who was the officer-in-charge of Ghosi police station reached at village Wajidpur at 11 p.m. and recorded the fardbeyan of the informant Jagdeo Singh and took up investigation. He visited the place of occurrence. The officer-in-charge found the dead bodies lying in the dalan of Jagdeo Yadav. He found marks of blood at the spot. The dalan of accused Jagdeo Yadav consisted of four rooms. There was three rooms in a row from east to west. Adjacent north of the western room there was another room which opened on the verandah of the dalan towards east. That room was connected with the western room by a door. In the western room the I.O. found the dead body of deceased Rajballabh Singh in pool of blood. The I.O. also found marks of blood over the walls of that room as also on various articles kept therein. He found trial of blood from the verandah of the dalan to that room. The dead body of Ram-saran Yadav was lying in the middle of room. 6. The doctor conducted the postmortem examination on the two bodies was not examined. The learned Sessions Judge, however, considered the report of the post-mortem in para 5 of the judgment, as extracted hereunder : "From the post-morten examination report of the dead body of Ramsaran Yadav it appears that the doctor had found a lacerated wound with margin 11/2 x 11/2 x thoracic cavity on the left upper anterior part of the chest below middle of clavicular bone, a lacerated wound 1/2" x 1/2" x muscle on lower lip on right lateral end and a laceratated wound l/10th" 1/10" x skin on left lateral part of chest 4" below arm pit. On dissection that doctor had found blood clots present beneath the injuries and the adjacent tissues were reddened. The second and third ribs were fractured below injury No. 1. There was no wound of exit. On dissection that doctor had found blood clots present beneath the injuries and the adjacent tissues were reddened. The second and third ribs were fractured below injury No. 1. There was no wound of exit. The left lung had been macerated partially below injury No. 1 in its anterior part. According to the doctor the injuries were ante-mortem in nature. The injury on the lip was caused by some hard and blunt substance and the remaining two injuries were caused by gun shot. The death of the deceased had occurred due to shock and haemorrhage as a result of the injury on the chest about 30 hours before the post-mortem examination. The doctor had extracted 18 pellets and 3 pieces of wads from the dead body of the deceased. The doctor had also found two lacerated wounds on the middle of the chin and in the middle of the right part of chest at the medical and of right lower eye lid two incised wounds found and two bruises on the left side of chest of deceased Rajballabh Singh. The incised wound on the face was deep up to the eye ball. On dissection the doctor had found blood clots present beneath the injuries and the adjacent tissues were of red colour. The mandible was fractured below the injury on the chin. Similarly, perietal bone was fractured below the incised wound on the right part of the head of the deceased. Besides, the sygomatic and maxillary bones were fractured on the right part of the face of the deceased. All the injuries were ante-mortem in nature. Incised injuries on the head and eye were caused by some sharp cutting weapons while the rest were caused by some hard and blunt substance. The death of the deceased had occurred about 30 hours before the post-mortem examination due to shock and haemorrhage resulting from the injuries found on the person of the deceased, especially due to the injuries on the chin and head as well as the fractures of the facial bones, namely, the zygomatic and maxillary bones. It may be mentioned here that the post-morten examinations of both the deceased persons had been conducted by the doctor on 9.12.1974 at about 4 p.m." 7. As stated earlier two versions of the occurrence were put forward before the trial Court. It may be mentioned here that the post-morten examinations of both the deceased persons had been conducted by the doctor on 9.12.1974 at about 4 p.m." 7. As stated earlier two versions of the occurrence were put forward before the trial Court. One on behalf of the prosecution and the other on behalf of the defence. The learned Additional Sessions Judge proceeded to consider the prosecution evidence and the defence evidence in order to discover which of the two versions was correct and acceptable. 8. The prosecutor produced as. many as 14 witnesses to substantiate the case of the prosecution including PW 14, the Investigating Officer. PW 12 Jagdeo Singh (informant) is the full brother of the deceased Rajballabh Singh. Out of the remaining 12 witnesses PWs 6, 8, 10 and 12 were tendered for cross-examination. The defence also examined four witnesses, namely, DW 1 Chand Gobind Singh, DW 2, Kari Devi, (widow of deceased Rajsaran Yadav) DW 3 Ramlakhan Yadav and DW 4 Deosaran Yadav. 9. The learned Additional Sessions Judge in his judgment has discussed the prosecution evidence and the defence evidence at length. He found no truth in the defence version and accepted the prosecution case. He found the case against the appellants beyond reasonable doubt. 10. Sri Jagdish Prasad Singh, learned senior counsel for the appellants has attacked the judgment under appeal from all corners. He vehemently argued that the prosecution has failed to prove the origin and genesis of the occurrence which can be divided into two incidents. The first incident, according to the prosecution, allegedly took place at about 6 to 7 p.m. on 7.12.1974. In order to prove this part of the genesis the prosecution examined PWs 1,2,4,6,7,11 and 13. The evidence of these witnesses are not only contradictory but concocted by PW 13 Jagdeo Singh. The learned counsel tried to demonstrate this allegation by illustration. In the evidence of PW 7 he has stated that there was an altercation between Raja Ram, on one hand and Ramsaran on the other. He has not stated that Ganga Bishun took part in the assault. This version has been contradicted by PW 11 Arjun Singh, who had stated that Raja Ram assaulted Ramsaran with fists and slaps. PWs 7 and 4 have stated about altercation only and did not state that Raja Ram was assaulted by anybody. He has not stated that Ganga Bishun took part in the assault. This version has been contradicted by PW 11 Arjun Singh, who had stated that Raja Ram assaulted Ramsaran with fists and slaps. PWs 7 and 4 have stated about altercation only and did not state that Raja Ram was assaulted by anybody. The second incident which is part of the genesis, is that Ganga Bishun who is Kamia of Servanand, went to his house in the morning of 8.12.1974 to perform his duty where Ramadhar Singh and Vijoy Singh assaulted him with fists and sticks. These two persons have not been examined. It is submitted that the most important witness Sarvanand Singh, PW 8, was also tendered by the prosecution. 11. Learned counsel for the appellants further submitted that evidently the prosecution has deliberately tried to obliterate the dependable witnesses which is clearly suggestive of the fact that no incident took place in the morn-ing of 8.12.1974. The third part of the prosecution is that Rajballabh Singh was alive in the morning of 8.12.1974 and he had gone to village Gamherpur on the request of PW 3 Hari Kishun Thakur for Panchayati. According to PW 3 four persons were appointed as Panch and they were Rajballabh Singh, Deo Narain Yadav, Ramchit Thakur and Sri Mahto. Out of the four panches three are dead. The only panch is Deo Sharan Yadav was examined as DW 4 who has categorically stated that no such Panchayati has ever took place in village Gemherpur on 8.12.1974 or any date to adjudicate upon the dispute of PW 3 Hari Kishore Thakur and his brother. Not a single chit of paper allegedly prepared by the Panches was produced in the Court. 12. The learned counsel for the appellants contended that the very fact that Rajballabh Singh was alive in the morning of 8.12.1974 and had participated in the Panchayati not only disproved but failed in toto. This all goes to suggest that these genesis were falsely concocted for the purpose of the instant case although the occurrence of dacoity had taken place in the night 7/8.12.1974. Rajballabh Singh was a notorious criminal and absconder was killed. 13. The learned counsel next contended that Jagdeo Yadav is in no way involved in any of the earlier three incidents and therefore he has absolutely no reason to abuse indiscriminately the entire Bhumihar community. Rajballabh Singh was a notorious criminal and absconder was killed. 13. The learned counsel next contended that Jagdeo Yadav is in no way involved in any of the earlier three incidents and therefore he has absolutely no reason to abuse indiscriminately the entire Bhumihar community. There was absolutely no occasion for Rajballabh Singh to go empty handed to the Baithka of Jagdeo Yadav to make a protest. 14. Learned counsel submitted that appellant Jagdeo Yadav was all along at the place of occurrence. He never left the place. It is surprising that the police officer could not recover the incriminating gun from the house of this appellant. Learned counsel further submitted that if Jagdeo Yadav was involved in the incident of murder of either Ramsaran Yadav or Rajballabh Singh he cannot be waiting in his house for the police to arrive for being arrested by the police. 15. Next serious inconsistent evidence is that Jagdeo Yadav fired from Dalan and not roof of the Dalan. There cannot be doubt that, according to the prosecution case, that firing was restored from the room. The most damaging evidence against the prosecution is that according to the post-mortem report firing was restored from a point blank range. There was no occasion to miss the target as the firing was not from a distance but from a point blank range i.e., from a distance of 1 cubit and also when Ramsaran Yadav and standing on a different direction. 16. Learned counsel for the appellants reiterated that if at all Jagdeo Yadav was involved in the incident of murder of either Ram Saran Yadav or Rajballabh Singh he would not be waiting in his house for the police to arrive with the two dead bodies kept in the Baithka and thereafter to remain in the house to be arrested by the police. The very fact that he had given the fardbeyan to the police on 8.12.1974 at 4.15 p.m. earlier to the fardbeyan given by Jagdeo Singh, PW 13, at 11 p.m. when another police officer-in-charge as well as Dy. S.R who happened to be the own caste man of the prosecution arrived goes to suggest that the narration of events given by defence is not only probable but speaks the true events of facts. This certainly is a factor which weigh heavily against the prosecution. 17. S.R who happened to be the own caste man of the prosecution arrived goes to suggest that the narration of events given by defence is not only probable but speaks the true events of facts. This certainly is a factor which weigh heavily against the prosecution. 17. One of the victim Ramsaran Yadav was the neighbour of appellant Jagdeo Yadav, wife of Ramsaran has been examined as DW 2. Kari Devi, wife of Ramsaran Yadav (deceased), very material witness, has deposed that the dacoity took place in the house of Jagdeo Yadav in the night between 7/8.12.1974 in which fire was restored to and her husband Ramsaran Yadav was killed by the dacoits. 18. Learned counsel for the appellants has contended that two prosecution witnesses have also stated that there had been a firing in the village in the night intervening between 7/812.1974. It has been brought on the record that deceased Rajballabh Singh had a criminal background even according to the investigating officer. He had been involved in Ghosi P.S. case No. 8(11)63 under Sections 457 and 380, IPC, Barachati P.S. case No. 2(8)73 under Section 395, IPC. Jagdeo Singh, PW 13 (the informant) was also involved in Ghosi P.S. case No. 8(6)72. 19. Shri Jagdish Prasad Singh, learned counsel for the appellants argued with vehemence the entire ocular evidence deserved to be thrown. Log, stock and barrel considering the postmortem reports of the two deceased (Exts. 4 and 4/1). It is clear from the post-mortem report that firing was restored from a point blank range. None of the accused persons had any motive to take away the life of Ramsaran and in the process there was absolutely no occasion to miss the target as the firing was not from a distance but from a point blank range, when Ramsaran was standing in a different direction. 20. The prosecution is that Jagdeo had fired from roof and the Dy. S.P. who supervised the case supervised in this supposition. 21. Learned counsel for the appellants submitted that the topography of the place of occurrence indicates that Dalan of Jagdeo is located in such a place, it was not possible for the witness who have seen the actual happenings there. The house was surrounded by many houses. Learned counsel highlighted another circumstance to substantiate the defence plea that dacoity had been committed in the Baithka of Jagdeo in between 7/8.12.1974. The house was surrounded by many houses. Learned counsel highlighted another circumstance to substantiate the defence plea that dacoity had been committed in the Baithka of Jagdeo in between 7/8.12.1974. The objective finding of the investigating officer was that he found latches broken, boxes disturbed, some boxes in the open field in front of the Baithka of Jagdeo Yadav. Learned Counsel further submitted that the communication from Chand Gobind Singh and K.D. Mallick through Choukidar goes to suggest that the first impression of the police, who arrived at the place of occurrence was that actually a dacoity had taken place at the Baithka of Jagdeo Yadav in which two persons lost their lives. On that account the tension was prevailing in the village. This was entered in the station diary entry No. 135, dated 8.12.1974. 22. Learned counsel for the appellants next submitted that when Ramsaran fell down after receiving gun shot injury the natural conduct will be that Rajballabh would try to flee away and will never try to lift his body as alleged. 23. It is submitted that non-production of Chand Gobind Singh, most important witness of the case, as prosecution witness is weakest point of the prosecution. 24. On the other hand, Shri Dina Kumar, learned counsel for the informant has taken pains to explain the adverse circumstances against the prosecution with regard to undue delay on the part of the informant and the witnesses to reveal their versions of the occurrence to the police officer. It was submitted that there is evidence that the informant tried to go to the police station. It is difficult to accept this story as there is no such averment in the fardbeyan of the informant nor such fact is stated by any witness. It is next submitted that Chand Gobind Singh police officer reached the place of occurrence but did not visit the informants house. The informant came to know that a mob of Yadavas were moving in the village. This prevented the prosecution party from reaching the police station. Learned counsel submits that Chand Gobind Singh was not fair to the prosecution. He was a caste man of the accused and favoured the accused persons. 25. Learned counsel submitted that there was no infirmity whatsoever in the finding of the trial judge who was rightly impressed by the prosecution witnesses. 26. Learned counsel submits that Chand Gobind Singh was not fair to the prosecution. He was a caste man of the accused and favoured the accused persons. 25. Learned counsel submitted that there was no infirmity whatsoever in the finding of the trial judge who was rightly impressed by the prosecution witnesses. 26. According to the criminal jurisprudence the prosecution has to stand or fall on its own merit. It cannot succeed even if counter version is false or absured. The burden is only on the prosecution to establish the prosecution case. A number of defects has been pointed out in the evidence. The informant had come to know about two murders from Ram Naresh Sharma, PW 5, who belonged to the prosecution party. There is serious contradiction in the post-mortem report and the ocular evidence, as noticed earlier. I find strong force in the submission of the learned Counsel for the appellants that the genesis of the occurrence has not been established. It is extremely doubtful that witnesses who claimed to have watched the happening on the fateful morning at the house of Jagdeo actually saw anything. In my view the trial judge was correct in his coclusion by ignoring the infirmities in the evidence. 27. The result of the above discussion is that the conviction of the appellants cannot be sustained and this appeal is accordingly allowed. The judgment of the trial Court is set aside and the appellants are acquitted of the charge by giving benefit of doubt. All the appellants are on bail. They are discharged from the liability of their bail bonds.