Judgment R.N.Sahay, J. 1. In Sessions Trial No. 475 of 1986 on the file of 4th Additional Sessions Judge, Arrah 12 persons were placed on trial having been charged under Sections 302, 302/149, 148 and 147 of the Indian Penal Code and Sec. 27, Arms Act. The occurrence which led to the trial and conviction of the appellants related to an incident which took place on 20-2-1986 at village Kurathia P.S. Brahampur in the district of Bhojpur which is situated about 18 kms. from Brahampur Police Station. In the said occurrence, two persons lost their lives namely, Janardan Singh and Jamuna Singh. All the appellants belong to village Kurathia. 2. The case of the prosecution was as follows. On 20-2-1986 at about 3.30 p.m. the informant Kapildeo Singh was returning to his village along with the cousin Janardan Singh deceased. When they reached in front of the house of Ishwar Dayal Mahto (who is appellant in Cr. Appeal No. 366/ 86 and his appeal has abated on account of his death), he saw several persons of Koeri Caste armed with gun, lathi, bhala sitting at the darwaja of Ishwar Dayal and they were holding meeting. The informant had land dispute with the appellant Bhirgunath Mahto, Ram Nath Mahto and Moti Mahto and they were also sitting in the said meeting. The informant Kapildeo Singh became apprehensive. He and Janardan Singh accelerated their pace and entered the compound of Janardan Singh. At that time deceased Jamuna Singh was in his compound Milling Rice. All the accused-persons entered in the compound of Janardan Singh. Appellant Ramashish Mahto instigated his companions to kill whereupon Ishwar Dayal Mahto and Bhirgunath Mahto fired from their gun which hit Jamuna Singh and he fled inside towards Dalan and fell down. Then, all the appellants went to the house of Bhirgunath Mahto which was outside the village. Kapildeo Singh, Janardan Singh, Ram Narain Singh and Gudkan Singh carried Jamuna Singh for going to Raghunathpur for treatment and they had moved 3 to 4 bighas north west from the house of Jamuna Singh. All the accused-persons reached there from the room of Bhirgunath Mahto and restrained the persons who were carrying Jamuna Singh from proceeding further. It is then alleged that the appellant Mutur Mahto gave a push as a result of which Jamuna Singh fell down on the ground from the cot. All the accused-persons reached there from the room of Bhirgunath Mahto and restrained the persons who were carrying Jamuna Singh from proceeding further. It is then alleged that the appellant Mutur Mahto gave a push as a result of which Jamuna Singh fell down on the ground from the cot. On the instigation of Mutur Mahto, Amirchand Mahto gave a bhala blow and Bhirgunath Mahto fired at Janardan Singh, as a result of which he died on the spot. Members of the mob assaulted the informant and others who were carrying the cot. Jamuna Singh also died. Kapildeo Singh left the dead body there under the care of others and went to the Police Station along with Chowkidar where his fardbeyan was recorded at 7.30 p.m. by the Officer-in-charge, Bhojpur Police Station. The cause of twin murder was dispute relating to land of Most. Sheo Sundari Kuar wife of Jagdeo Mahto. 3. The defence of the appellants was that no occurrence took place as disclosed in the story of Kapildeo Singh in his fardbeyan. According to the defence, Janardan Singh and Jamuna Singh were murdered in their house in the night by the Naxalites and the assailants were not identified and Kapildeo Singh implicated them on account of enmity. 4. Learned Additional Sessions Judge found all the appellants guilty of the charges on the basis of ocular version and sentenced them imprisonment for life. 5. Three appeals have been preferred before this Court by the convicted accused. Cr. Appeal No. 356 of 1991 is preferred by Ishwar Dayal which has abated. We are left with two appeals. In Cr. Appeal No. 479 of 1991, the appellant is Bhirung Mahto @ Bhirgunath Mahto. In Cr. Appeal No. 270 of 1991 there are ten appellants. 6. The evidence brought on record by the prosecution may be summarised as follows. Dr. A.Q.C. Sinha, Deputy Superintendent of Sub-Divisional Hospital, Buxar, who performed autopsy on the dead body of the deceased Janardan Singh found that Janardan Singh had suffered lacerated wound 4" x 3" x 4" with ragged margin with loss of skin, muscle trachea great vessels of neck over front neck. Entire area spreading face, hand and upper part. Chest tottered and blackened with dried blood spread. Direction of wound downward, backward and to right side. Entire area spreading face, hand and upper part. Chest tottered and blackened with dried blood spread. Direction of wound downward, backward and to right side. On dissection, the doctor found (1) loss of muscle, trachea, thyroid, jugular, veins, carotid artery, (2) right thoracic cavity full of blood and blood clots, (3) Recovery of pellets from right thoracic cavity, (4) laceration of right lung. 7. On the dead body of Jamuna Singh, one gun-shot injury was found which was small lacerated wound circular or oral 1/4" diameter with ragged margin and surrounding area scorched, spread over 4 in number on right arm, 6 on right side chest, 4 on right side back, 2 on right side neck and 3 011 right side head. The post-mortem report clearly shows that the deceased had died of gun-shot injury. 8. The informant Kapildeo Singh gave the same version which he had given in his fardbeyan. This witness stated that the appellant Amirchand Mahto had given bhala blow to Janardan Singh, but no bhala injury was found on the person of Janardan Singh. Janardan Singh and Jamuna Singh are brothers. Janardan Singh was posted as V.L.W. at Jagdishpur block. It is stated that Janardan Singh had compromised with Surendra Singh and Birendra Singh. It is further stated that Jamuna Singh was on the roof and he was shot at. The night of the roof was 10 to 12 ft. from the ground. The shots were fired from 10 cubits. Jamuna Singh had received two gun shots one on the chest and the other on the right side of the body. 9. Dadan Yadav (P.W. 3) was in the bathan of his house. On hearing hulla he came at the darwqja of Jamuna Singh. All named all the 12 accused-persons. He heard Janardan Singh saying that his brother has received gun-shot injury. When the appellants went to the darwaja of Bhirgunath Mahto, Jamuna Singh was taken to Hospital at Raghunathpur. He had not seen the occurrence. He learned from the informant about the entire occurrence. 10. Satyendra Singh (P.W. 4) was at his Dalan. When he heard hulla, he went towards the darwaja of Janardan Singh and when he reached the corner of the darwaja of Parasnath, he saw that Janardan Singh had been surrounded. He saw the appellants assaulting Jamuna Singh and also firing on Janardan Singh. 10. Satyendra Singh (P.W. 4) was at his Dalan. When he heard hulla, he went towards the darwaja of Janardan Singh and when he reached the corner of the darwaja of Parasnath, he saw that Janardan Singh had been surrounded. He saw the appellants assaulting Jamuna Singh and also firing on Janardan Singh. This witness also claimed to have been" the occurrence. This witness had seen the occurrence from the corner of the house of parasnath. To the same effect is the evidence of Ram Narain Singh (P.W. 5). 11. Ram Raj Yadav (P.W. 6) and Sarbjeet Singh (P.W. 7) by and large supported the evidence of Kapildeo Singh. 12. Learned Additional Sessions Judge had held that the material witnesses have supported the prosecution case and the occurrence took place as narrated by them. First Information Report was lodged by the informant within four hours of the occurrence. Learned Additional Sessions Judge was of the view that the prompt report of the case ruled out any concoction. Learned trial Judge noticed some contradiction in the evidence of Kapildeo Singh. According to the First Information Report, Jamuna Singh fled towards inside the house and when the appellants assaulted him, he fell down on the ground. But, in his evidence this witness stated that Jamuna Singh fled to the rooftop where the received gun-shot injuries and then fell on the Dalan. Learned trial Judge has not given importance to this contradiction. Kapildeo Singh was returning from Bhadwar and he had gone to meet the Mukhiya but there is no corroboration to this evidence. Deceased Janardan Singh was posted at Jagdishpur and he was coming to village after taking leave, Kapildeo Singh met him at Bhadwar. 13. According to the First Information Report, Janardan Singh and Jamuna Singh are cousins of the informant but in his evidence, Kapildeo Singh stated that Sheodutt Singh was the father of the deceased and Sheodutt Singhs brothers are Ramdutt Singh, Rangnalh Singh, Sheopujan Singh whereas Kapildeo Singh is son of Ram Sagun Singh. Thus the deceased were not the first cousins of Kapildeo Singh. It was argued on behalf of the defence that when the accused-persons had no enmity with the two deceased, there was no reason why the appellants would kill them. This submission was not accepted by the learned trial Judge. It was argued that the prosecution had not proved the motive. It was argued on behalf of the defence that when the accused-persons had no enmity with the two deceased, there was no reason why the appellants would kill them. This submission was not accepted by the learned trial Judge. It was argued that the prosecution had not proved the motive. Learned trial Judge came to the conclusion that the prosecution case was credible and on consistent evidence. 14. The Chowkidar deposed that on hulla he had gone to the darwaja of Jamuna Singh and Saw him injured. The Chowkidar was witness to the second part of the occurrence. Learned trial Judge has taken pains to consider all the arguments advanced on behalf of the appellants. Learned trial Judge summed up the evidence in paragraphs 28 and 29 of the Judgment as extracted hereunder: 28. Hence, from the analysis of the evidence of the above P.Ws., I find that though there is enmity between the witnesses and some of the accused from before, the witnesses are reliable and there is no serious discrepancy in their evidence, to impeach their credibility. From the discussions made above, it also appears that though P.W. 1 has stated in evidence that when accused Ram Singh Mahto and Ramdeni Mahto instigated to kill, Jamuna Singh fled to the rooftop of his house, and there he received gun-shot injury and then he came clown and fell on his dalan, and P.W. 7 has stated that Jamuna Singh was on the roof when he was shot at, it is doubtful that these witnesses had seen Jamuna Singh on the roof of his house and had also seen Jamuna Singh receiving the gun-shot injuries. There is also no other witness to prove as to where exactly Jamuna Singh had received the gun-shot injuries. But, the evidence of the P.Ws. clearly goes to show that the accused-persons had assembled at the darwaja of Jamuna Singh, and on the instigation of accused Ramsidh Mahto and Ramdeni Mahto, accused Bhirung Mahto and Ishwar Dayal Mahto fired, and Jamuna Singh received injuries, and ultimately he fell down at the dalan of his house. Therefore, there cannot be any doubt that on account of the firings done by the above two accused-persons, Jamuna Singh had received injuries. 29. The evidence of the doctor also shows that Jamuna Singh had received a number of injuries on chest, back, head and arm. Therefore, there cannot be any doubt that on account of the firings done by the above two accused-persons, Jamuna Singh had received injuries. 29. The evidence of the doctor also shows that Jamuna Singh had received a number of injuries on chest, back, head and arm. Therefore, it is apparent that more than one shot was fired on Jamuna Singh. The evidence of the doctor also shows that death had occurred to Jamuna Singh, at about the time of the alleged occurrence. Therefore, so far as the murder of Jamuna Singh is concerned, the evidence of the eye-witnesses is fully corroborated by the medical evidence. As regards deceased Janardan Singh, the evidence of the eyewitnesses is that accused Amirchand Singh have a bhala blow and accused Bhirung Mahto shot at him from a close range, and the evidence of the eye-witnesses further shows that they had seen the injuries on the neck. The evidence of the doctor also shows that he had found pellet injuries on neck. His evidence further shows that the entire area spreading face and upper part of chest, tattooed and blackened. Therefore, it is also evident that the shot was Fred from a close range as stated by the P.Ws. The evidence of the doctor, hew-ever, does not show that he found any injury caused by bhala on the neck of Janardan Singh. The learned Lawyer for the accused, hence, has urged that the medical evidence does not corroborate the oral evidence. But, the evidence of P.Ws. 2 and P.W. 6 is that Janardan Singh had received bhala injury blow at the place, where he had received gun-shot injury. The evidence of P.W. 1 also is that bhala blow was given first and then Bhirung Mahto fired at Janardan Singh. Therefore, it is quite probable that on account of subsequent pellet injury, the mark of injury caused by bhala was obliterated and the doctor did not find any bhala injury oh the deceased. However, as the doctor has not stated that he found any bhala injury, benefit of doubt has to be given to the accused and it may be said that Janardan Singh did not receive any bhala injury. However, as the doctor has not stated that he found any bhala injury, benefit of doubt has to be given to the accused and it may be said that Janardan Singh did not receive any bhala injury. But, simply because some exaggeration has been made by the eye-witnesses that accused Amirchand had also given a bhala blow, it cannot be said that the medical evidence does not corroborate the oral testimony of the witnesses. The doctor has found gun-shot injuries on the deceased fired from a close range, as has been stated by the eye-witnesses. 15. The evidence of the Investigating Officer is that on 20-2-1986 at Brahmpur Police Station, he recorded the First Information Report of the informant and took up investigation. He has further stated that he recorded the statement of the chowkidar also and at 10.00 p.m. started for the place of occurrence. The Investigating Officer reached Kurathia village on 21-2-1986 at 2.20 a.m. and found the dead bodies of Janardan Singh and Jamuna Singh in the field of Babhan Lal of 200 yards north west. He prepared inquest report and then dead bodies were sent for postmortem examination. The Investigating Officer found fire-arm injury on the dead bodies and bhala injury on the dead body of Janardan Singh. The Investigating Officer found a large quantity of blood on the roof of the house. He also found drops of blood on the staircase and copious blood at the Varandah. He found the field of Babhan Lal trampled and also copious blood at the place where the dead bodies were lying. He seized blood-stained earth from both the P.Os. and prepared seizure-list. 16. Learned trial Judge has considered the oral evidence in the light of the objective findings of the Investigating Officer and the commented as follows: It has come in evidence that when the informant and others reached with injured Jamuna Singh at the above field, the accused-persons surrounded them and there Jamuna Singh was pushed down and Janardan Singh was murdered. The I.O. has found both the dead bodies at the very place, and also found the field trampled and found large quantity of blood, at the places where the deceased were lying. This witness has also found blood at the Varandah of the house of the deceased Jamuna Singh, and this also corroborates that some occurrence had taken place there. The I.O. has found both the dead bodies at the very place, and also found the field trampled and found large quantity of blood, at the places where the deceased were lying. This witness has also found blood at the Varandah of the house of the deceased Jamuna Singh, and this also corroborates that some occurrence had taken place there. This witness, of course, had found blood on the roof of the house of Jamuna Singh, and as already pointed out, in the F.I.R. It is not mentioned that Jamuna Singh was on the roof of the house, when he was fired, and there is no specific and reliable evidence of the eye-witnesses that Jamuna Singh was on the roof when he was shot at. But, I have already pointed out that in fact no body had seen as to where Jamuna Singh was standing, when he was shot at. Therefore, only because the I.O. has round blood on the roof, it cannot be said that the occurrence took place in some other manner, because I have already shown that though the eye-witnesses did not see as to where Jamuna Singh was standing at the time of actual assault on him, the evidence is unimpeachable that he received the injuries at his house during the course of this very occurrence. 17. Kapildeo Singh in his fardbeyan stated that the deceased Janardan Singh was his cousin. Learned Counsel for the appellants submitted that his evidence in Court shows that he was not at all related to the family of the deceased. In para 15 of his evidence, he has stated that his grand father was Bujhawan Singh who had only son Ram Sagar Singh, who had two sons, namely, the informant and his brother Dwarika Singh. All the family members of the informant have come out in Court to depose against the appellants. They are informant (P.W. 1), his father (P.W. 2) and his nephew (P.W. 5). F.I.R. does not show that the appellants were inimical with the deceased Janardan Singh and Jamuna Singh of their family members. There is no evidence that the appellants were inimical to the deceased. It is submitted that there is complete absence of motive for the drastic crime attributed to the appellants. 18. F.I.R. does not show that the appellants were inimical with the deceased Janardan Singh and Jamuna Singh of their family members. There is no evidence that the appellants were inimical to the deceased. It is submitted that there is complete absence of motive for the drastic crime attributed to the appellants. 18. It was submitted that absence of any injury on the informant, who also claimed to be inimical to the appellants causes serious doubt. The informant has given go-bye to the version in the F.I.R. that he was also assaulted with lathi. Learned Counsel for the appellants submitted that the First Information Report shows that the appellants followed the informant and Janardan Singh up to the house of Janardan Singh where accused Ram Dani Mahto and Ramaidh Mahto instigated to kill on which the deceased appellant Ishwardayal Mahto fired on them (informant and Janardan Singh) which caused bullet injury on Jamuna Singh who was on the roof and after being injured, he ran towards Dalan and fell down. Thereafter, the appellants went away to the house of Bhirung Mahto situated to the west of the village. In this manner, the occurrence is said to have come to an end. This story of prosecution case has been given up in course of trial before the Court. The prosecution has introduced a new case through the informant. According to the informant as per deposition in Court, Jamuna Singh was in the compound. He ran and went on the roof when accused Ramsidh Mahto and Ram Deni Mahto instigated to kill. On their instigation, appellant Ishwar Dayal Mahto and Bhirung Mahto fired from their guns causing injury to Jamuna Singh. Jamuna Singh sustained injuries and fell on the ground. It is submitted that there is vital contradiction on the point of occurrence and manner of occurrence with respect to the first story of occurrence of this case. What the informant has stated about Jamuna Singh in the F.I.R. was correct version and there was no scope for finding any blood on the roof of the house of Jamuna Singh, but in fact the Investigating Officer had found blood on the roof of the house of Jamuna Singh and also on the wooden ladder in the courtyard and in the courtyard also. 19. 19. Learned Counsel submitted that Kapildeo Singh has developed the prosecution story from stage to stage and his evidence in Court is contradictory as compared to the earlier statement and also contrary to the objective evidence found at the place of occurrence by the Investigating Officer. 20. It was next contended that according to the oral evidence, Janardan Singh was given a bhala blow but in the post-mortem report only one injury was found, with regard to assault on Jamuna Singh, two persons are said to have fired but only one injury has been found on the dead body of Jamuna Singh. It is submitted that according to the case, the informant had gone to village Bhadwar but there is no evidence that the informant had gone to village Bhadwar and met the Mukhiya. Janardan Singh was not at home from before. He was in service. He had not told to any body that he was coming to the village. Learned Counsel submitted that it is highly improbable that the appellants were holding any meeting as alleged with a view to assault Janardan Singh. Nothing is on the record to show that the informant was likely to return that way. There was no occasion for the appellants to make any preparation for assault on the informant. Under the circumstances, the so-called origin of the occurrence and holding a meeting by the appellants at the Dalan of Ishwar Dayal Mahto has not been proved. 21. Learned Counsel for the appellants next submitted that the accused-persons come from different families. They are Moti Mahto and his three sons from one family. The other four are from the family of Ram Sidh Mahto and his two sons Ayodhya and Chhathu Mahto including his close agnate Ram Niwas Mahto. The next and the third family is that of Ishwar Dayal Mahto whose son Umashankar Mahto has been made Accused whose close agnate is other co-accused Ram Deni Mahto and his close relative is Mutur Mahto. The evidence shows that the village is inhabited by all castes of people of Hindu and Muslim but no independent witness has come to support the prosecution case. None of the persons from the family of two deceased came to support the prosecution case. 22. The evidence shows that the village is inhabited by all castes of people of Hindu and Muslim but no independent witness has come to support the prosecution case. None of the persons from the family of two deceased came to support the prosecution case. 22. Learned Counsel for the appellants submitted that Janardan Singh and Jamuna Singh had no enmity with the appellants and it has come on record that Jamuna Singh had many other enemies. Though the informant has said that he does not know that Janardan Singh had got transferred some lands of his co-villager Sudarshan Singh in his favour practising fraud and in order to get it set aside, Sudarshan Singh had filed suit in the Court of Munsif, I, Buxar. The defence has brought in record the order sheet and plaint which proves this fact, Kapildeo Singh has not admitted the fact that the area is affected with Naxalite movement and a police constable was killed in the neighbouring village Bhadwar. This fact was also concealed by the Chowkidar Ram Raj Yadav (P.W.6). 23. It was also the case of the defence that the alleged occurrence must have taken place at about 7.00 p.m. and not at 3.30 p.m. in this connection the evidence of Dwarika Nath Singh has been relied upon. This witness is a teacher and on the fateful day he was returning from school and after returning from school he was informed about the two murders. This witness had left the school at 4.00 p.m. The distance of his village from school is 10 miles. It is submitted that it must have taken three hours for him to recover the distance of 10 miles to arrive at his village from school. This witness had deposed that he had seen some of the accused-persons armed with gun and bhala. He saw the dead bodies lying west of the village. 24. It was argued that the informant Kapildeo Singh could not be held to be reliable witness. His evidence lends support to the conclusion that the informant was not present at the time at the place of occurrence when Jamuna Singh and Janardan Singh was killed. 25. Learned Counsel for the appellants submitted that Dadan Yadav (P.W. 3) has stated that at the time of occurrence he was at. His evidence lends support to the conclusion that the informant was not present at the time at the place of occurrence when Jamuna Singh and Janardan Singh was killed. 25. Learned Counsel for the appellants submitted that Dadan Yadav (P.W. 3) has stated that at the time of occurrence he was at. his Dalan and on hulla he went to the dalan of Sudama Singh and saw 12 persons. The evidence of Kapildeo Singh shows that the house of Dadan Yadav is situated north of the village whereas the house of the deceased Janardan Singh is situated to the south west of the village. Dadan Yadav is the witness on the point of first occurrence at the house of Jamuna Singh. He does not claim to be eye-witness of the second occurrence where Janardan Singh is said to have been killed. It is submitted that it is doubtful that this witness had seen the first part of the occurrence at the house of Jamuna Singh. His evidence is that he first went to the Khand of Sudama Singh. He stayed there for 10 minutes. No body came there. Then he went to the darwaja of Janardan Singh where he saw Jamuna Singh injuried. The injuries Jamuna Singh was outside his Dalan. He stayed at the Dalan for 10 minutes. While he was there, the informant Kapildeo Singh (P.W. 1), Jitendra Singh, Ram Narayan Singh (P.W. 5), Dhuman Singh (P.W. 7) and others came. Then he returned to his house and remained there for whole night. It is submitted that according to the evidence of this witness, the informant was not present at the house of the deceased Jamuna Singh from before. The informant and two others witnesses arrived at the house of the deceased. 26. Jamuna Singh was injured before Dadan Yadav arrived at his house. Therefore, his evidence on the point of his being eye-witness of the first occurrence at the house of Jamuna Singh is not reliable and acceptable. Dadan Yadav was not an eye-witness on the point of first occurrence, which is evidence from the fact that the Investigating Officer has deposed that Dadan Yadav had not said that he had seen Jamuna Singh receiving injuries. Dadan Yadav was not an eye-witness on the point of first occurrence, which is evidence from the fact that the Investigating Officer has deposed that Dadan Yadav had not said that he had seen Jamuna Singh receiving injuries. It is submitted that what Dadan Yadav has stated in para-7 of his deposition is fatal blow to the prosecution case as it goes to show that Kapildeo Singh informant of this case was not an eye-witness to the first part of the occurrence. Similarly Ram Narayan Singh (P.W. 5) and Sarbjit Singh were also not eye-witness to that occurrence. The reason why Dadan Yadav had deposed against the appellants was that appellant Bhirung had filed a case against him, Baban and Sarbjit Singh and that case was pending at the time of occurrence. 27. Chowkidar Ram Raj Yadav (P.W. 6) stated that be along with others went out of the village towards north and was passing through the field. In the meantime, 12 persons came and surrounded them. He named eight persons. Appellant Mutur Mahto knocked the cot of Jamuna Singh. Jamuna Singh fell on the ground. Appellant Amirchand Mahto gave bhala blow to Janardan Singh whereas appellant Bhirung Mahto fired at Janardan Singh resulting the death of Janardan Singh. Jamuna Singh also died there. This witness stated that Kapildeo Singh went to the police Station. Chowkidar Ram Raj Yadav was an eye-witness to the second occurrence. This witness has stated before the Investigating Officer that when he went to the police Station he found Kapildeo Singh there from before. The evidence of Ram Raj Yadav that the informant was present at the Police Station as stated by him in Court was not correct. It is also stated that he learnt from Kapildeo Singh about the manner in which Jamuna Singh was attacked and killed while Jamuna Singh was carried to hospital. It is submitted that Chowkidar Ram Raj Yadav is not a truthful witness. 28. Satyendra Singh (P.W. 4) claims to be eye-witness of the entire occurrence i.e. both one at the house of Jamuna Singh and the other in the field of Bachan Lal on way to hospital. He reached the place of occurrence from his house on hulla. When he arrived at the corner of the house of Paras Nai, he saw Janardan Singh surrounded by the accused-persons variously armed with gun, bhala and lathi. He reached the place of occurrence from his house on hulla. When he arrived at the corner of the house of Paras Nai, he saw Janardan Singh surrounded by the accused-persons variously armed with gun, bhala and lathi. Thereafter, he saw the entire occurrence. He saw Janardan Singh, Kapildeo Singh and Jamuna Singh on the roof from the house of Paras Nai. After some time he saw Jamuna Singh with bleeding injuries on the cot at his Dalan. He stayed at the Dalan of Yamuna Singh for 10-15 minutes. After his arrival, Ram Narain Singh (P.W. 5), Dadan Yadav (P.W. 3). Raja Ram Yadav Chowkidar (P.W. 6), Sarbjit Singh (P.W. 7) and others came. 29. It was argued that this witness could not be an eye-witness of the occurrence, which is said to have been taken place in the house of Jamuna Singh, rather he arrived there after the first part of the occurrence. It is further clear that this witness arrived at the place of occurrence after 1 he aforesaid three witnesses and had not witnessed the occurrence which took place in the house of Jamuna Singh. Learned Counsel submitted t hat the evidence of Satyendra Singh claiming to be eye-witness of the entire occurrence is to be ruled out. Learned Counsel submitted that in view of the evidence of Satyendra Singh, the evidence of Ram Narayan Singh (P.W. 5) is doubtful. Ram Narayan Singh claims to be eye-witness of the occurrence. He is son of Dwarika Nath Singh and own nephew of the informant Kapildeo Singh. He was student of Class IX. He had gone to the place of occurrence after hearing hulla from his Dalan. It was pointed out that his Dalan is not situated in the vicinity of the house of the de-ceased rather it is far away in other Tola of the village by the side of the house of Sarbjit Singh which is evident from the evidence of the inform-ant. Ram Narayan Singh had revealed before the Police that he went to the house of Paras Nai after hearing sound of gun firing and saw seven persons including Chowkidar Ram Raj Yadav. It is submitted that Ram Narain Singh cannot be eye-witness to the occurrence. He is interested witness and his evidence should be discarded. 30. Ram Narayan Singh had revealed before the Police that he went to the house of Paras Nai after hearing sound of gun firing and saw seven persons including Chowkidar Ram Raj Yadav. It is submitted that Ram Narain Singh cannot be eye-witness to the occurrence. He is interested witness and his evidence should be discarded. 30. The evidence of Sarbjeet Singh (P.W. 7), who is father of Satendra Singh (P.W. 4), is that he arrived at the house of Jamuna Singh on hearing hulla. But, the evidence of Satyendra Singh (P.W. 4) is that his father went thereafter. It was submitted that Sarbjeet Singh has tried to conceal that fact that he was accused for the offence that he rant away with a Court document from the Court of Munsif at Buxar snatching it from the hand of a lawyer and the Court lodged a criminal case against him. This witness said that he went to the house of the deceased from his own house and he did not meet any person in way. He saw the deceased Jamuna Singh lying seriously injured. The evidence reveals that he reached at the place of first part of the occurrence after the Chowkidar, who had arrived there after the occurrence had already taken place. Thus this witness Sarbjeet Singh cannot be an eye-witness. 31. Sarbjeet Singh stated that Janardan Singh first received gunshot injury in his neck and thereafter bhala injury was caused to him. There is vital contradiction in his evidence regarding manner of second part of the occurrence since according to the informant bhala injury was first caused and then gun-shot injury. Sarbjeet Singh was at the second place of occurrence for about 20 minutes but no villager came there. It is hard to believe that the occurrence of this nature had taken place in the vicinity of an inhabited portion of the village and no villager came. Sarbjeet Singh had gone to the Police Station along with the informant but his statement was not recorded by the police at the Police Station, this indicated the fact that he had not gone to the Police Station. 32. Sarbjeet Singh had gone to the Police Station along with the informant but his statement was not recorded by the police at the Police Station, this indicated the fact that he had not gone to the Police Station. 32. Learned Counsel for the appellants attempted to find fault in the evidence of all the eye-witnesses and argued that the evidence regarding two murders is highly discrepant and sought to be supported by the evidence of interested inimical witnesses on which no reliance can be placed. The finding of the trial Court curing trial is utterly unsound. The appellants, therefore, are entitled to verdict of acquittal. 33. At this stage it is necessary to critically analyse the evidence in order to test the validity of the arguments advanced on behalf of the appellants. This is a case of brutal murder of two persons in the village itself in the evening time. A large number of accused-persons are involved in the occurrence. The main case is against Ishwar Dayal Mahto (since deceased) and Bhirung Mahto @ Bhirgunath Mahto. 34. According to the story in the First Informant Report, on the fateful day at about 3.30 p.m. Kapildeo Singh was returning to his village along with his causing Janardan Singh deceased. Janardan Singh was a V.L.W. posted in Jagdishpur Block. The informant has not disclosed wherefrom he and the deceased were coming. When they reached in front of the house of accused Ishwar Dayal Mahto, they saw the accused-persons armed with lethal weapons sitting at the darwqja of Ishwar Dayal Mahto where they were holding some sort of meeting. Kapildeo Singh had land dispute with the appellants Bhirgunath Mahto Ram Nath Mahto and Moti Mahto and they were also present in the meeting. The informant became apprehensive. He and Janardan Singh entered the compound of Janardan Singh. At that time Jamuna Singh, brother of Janardan Singh was also in the compound Milling Rice. 35. Soon thereafter a mob consisting of the appellants and others entered the compound of Janardan Singh. Appellants Ram Deni Mahto and Ramsidh Mahto instigated his companions to kill (who was the target and the exact words used by the appellants are not mentioned in the First Informant Report), Ishwar Dayal Mahto and Bhirung Mahto fired from their guns whereby Jamuna Singh received injuries. He ran towards his Dalan and fell down. The first occurrence ended in this way. 36. He ran towards his Dalan and fell down. The first occurrence ended in this way. 36. All the accused-persons went to the house of Bhirung Mahto outside the village. Kapildeo Singh, Janardan Singh, Ram Narain Singh and Gudkan Singh started for Raghunathpur with the injured Jamuna Singh. They had covered some distance towards north from the house of Jamuna Singh. Twelve persons named in the First Information Report came out of the room of Bhirung Mahto and surrounded them. The appellant Mutur Mahto pushed the cot on which Jamuna Singh was being carried. Jamuna Singh fell on the ground, then the appellant Amirchand Mahto dealt a bhala blow on Janardan Singh. At the same time Bhirung Mahto fired from close range on Janardan Singh, who died on the spot. The members of the mob also assaulted the informant and others, who were carrying the cot. Thereafter the accused-persons moved away. By this time Jamuna Singh was also dead. The informant leaving the two dead bodies there in the care of others went to the Police Station along with the Chowkidar at 7.30 p.m. and gave fardbeyan before the Officer-in-charge. The reason behind the occurrence was the dispute relating to land of Mostt, Sheosundari Kuar of village Karathua. 37. Thus, according to the First Information Report, the deceased appellant Ishwar Dayal Mahto and Bhirung Mahto are said to be responsible for the murder of Jamuna Singh in the first occurrence in the house of Janardan Singh. Janardan Singh died on account of bhala blow and gun-shot injury caused by Amirchand Mahto and Bhirung Mahto. The other accused had not caused any harm to the two deceased. They had assaulted the informant and others with lathi. 38. Janardan Singh, according to the Post-Mortem Report, had received one gun-shot injury. No bhala injury was found on this deceased. Jamuna Singh had also suffered one gun-shot injury according to the post-mortem Report. The medical evidence, therefore, falsifies the evidence of the eye-witnesses that two persons had fired on the deceased. It is important to mention that according to the First Information Report Jamuna Singh was shot when he was found in his compound. The informant has changed his version in Court when he said that Jamuna Singh ran towards roof of the house where he was shot by Ishwar Dayal Mahto and Bhirung Mahto. It is important to mention that according to the First Information Report Jamuna Singh was shot when he was found in his compound. The informant has changed his version in Court when he said that Jamuna Singh ran towards roof of the house where he was shot by Ishwar Dayal Mahto and Bhirung Mahto. The informant has stated that after receiving gun-shot injuries, Jamuna Singh fled towards his dalan where he fell down. In the second occurrence, Janardan Singh was killed by bhala blow and gun-shot injury. As stated earlier, no bhala injury was found on the dead-body of Janardan Singh. The allegation against Amirchand Mahto is not substantiated. The informant Kapildeo Singh cannot be held to be wholly reliable witness. It was suggested by the informant that he was not in the village at the time of occurrence which he had denied. The informant had not stated that he had gone out of the village and met Janardan Singh outside the village. 39. Dadan Yadav (P.W, 3) on hearing hulla went to the Bathan of one Sudama Singh (not examined) and he saw all the accused-persons armed with guns, bhala and lathi. This witness has not stated anything about the precise manner of occurrence and only said that he saw Jamuna Singh being shot. Dadan Yadav is the witness to the second part of the occurrence as he did not accompany the injured Jamuna Singh when he was taken to hospital. It is doubtful whether this witness had seen the actual occurrence. He probably reached after firing. 40. Satyendra Singh (P.W. 4) on hearing hulla had gone to the house of Janardan Singh and from the corner of the house of Parasnath Nai he saw the accused-persons variously armed. Although several accused-persons were alleged to have been carrying on arms but only two persons Bhirung Mahto and Ishwar Dayal Mahto fired from their guns resulting into injury on Jamuna Singh in the first occurrence. This witness has also deposed about the second occurrence, which took place since he was one of the persons carrying the injured to Raghunathpur Hospital. This witness has stated that Bhirung Mahto had shot at Janardan Singh. It is stated that Amirchand Mahto inflicted bhala injury on Janardan Singh but this is not corroborated by the medical evidence. This witness has also deposed about the second occurrence, which took place since he was one of the persons carrying the injured to Raghunathpur Hospital. This witness has stated that Bhirung Mahto had shot at Janardan Singh. It is stated that Amirchand Mahto inflicted bhala injury on Janardan Singh but this is not corroborated by the medical evidence. This witness has, however, stated that he went, to the place of occurrence and in the house of Janardan Singh ten minutes thereafter. He heard the sound of gun firing. So, he could not have seen the first part of the occurrence. This witness has further stated that Ram Narain Singh, Dadan Yadav, Baban Yadav, Raja Ram Chowkidar reached after the arrival of this witness. This witness stated that he saw the occurrence from near the house of Parasnath Nai where he stopped for 10 minutes. It is further stated that he saw Janardan Singh, Jamuna Singh and Kapildeo Singh at the house of Janardan Singh, which is not consistent with the prosecution case. 41. Ram Narain Singh (P.W. 5) stated that Ishwar Dayal Mahto and Bhirung Mahto fired at Jamuna Singh on which Jamuna Singh fell on the ground. Jamuna Singh was carried on a cot in injured condition. This witness also accompanied with Jamuna Singh to Raghunathpur Hospital. He had seen the second part of the occurrence. He was student of Class IX and he had not gone to school on that day. 42. Ram Raj Yadav (P.W. 6) was Chowkidar of the village. On hulla, he went to the darwaja of Jamuna Singh and saw him injured. He had not seen any of the accused-persons. He was told by Kapildeo Singh that Jamuna Singh has been shot and injured by the appellants Bhirung Mahto and Ishwar Dayal Mahto. This witness along with 7-8 persons of the village started for Raghunath Hospital, with the injured Jamuna Singh. He witnessed the second part of the occurrence. This witness has spoken same facts as deposited by Kapildeo Singh and other witnesses about the second occurrence. 43. Sarbjeet Singh (P.W. 7) had gone to the first place of occurrence on hearing hulla. This witness claims to have seen all the accused-persons. Bhirung Mahto and Ishwar Dayal Mahto were firing from their guns by which Jamuna Singh, who was on the roof of his house received pellet injuries. 43. Sarbjeet Singh (P.W. 7) had gone to the first place of occurrence on hearing hulla. This witness claims to have seen all the accused-persons. Bhirung Mahto and Ishwar Dayal Mahto were firing from their guns by which Jamuna Singh, who was on the roof of his house received pellet injuries. He found Jamuna Singh fallen near the dalan. Jamuna Singh was put on a cot for being taken to Raghunathpur and when they reached near the field of Bachan Lal, they were surrounded by the same accused-persons. In the second occurrence, Bhirung Mahto shot dead Janardan Singh and then Amirchand Mahto is said to have inflicted bhala blow. The cause of occurrence was the dispute between the accused-persons and Janardan Singh with regard to the land of Sheosundari Kuar. 44. The evidence of the Investigating Officer has already been dealt in paragraph 15 of the judgment. 45. Learned trial Judge has tried to reconcile the discrepancy in the First Information Report and the evidence in Court with regard to the place where Jamuna Singh was standing when he was shot. As noticed earlier, according to the First Information Report, Jamuna Singh was on the ground when he received gun-shot injuries. He fell down in the Dalan, but according to the oral evidence and the objective finding of the Investigating Officer, it is well established that Jamuna Singh was shot when he was on the roof of the house. Learned trial Judge says that this contradiction is not material because from this it cannot be inferred that the witness did not see anything or he was not the actual witness. The first informant had not seen Jamuna Singh when he entered in the compound of Jamuna Singh. Learned trial Judge has observed that it is not the prosecution case that the accused-persons were holding meeting in the house of Ishwar Dayal Mahto knowing that Janardan Singh was to come that way. In other words, it was not a pre-planned affair with regard to the motive, the view of the learned trial Judge was that it was not essential for the prosecution to prove the motive of the direct evidence. Learned trial Judge observed that the accused-persons had also dispute with the deceased. Learned trial Judge observed that Jamuna Singh had received a number of injuries on account of firing done by the accused-persons. Learned trial Judge observed that the accused-persons had also dispute with the deceased. Learned trial Judge observed that Jamuna Singh had received a number of injuries on account of firing done by the accused-persons. Learned trial Judge has held that the evidence of the witness that Amirchand Mahto and caused bhala injury is not corroborated by the medical evidence, 46. The judgment of the learned trial Judge is no doubt well considered judgment but his finding in para 35 of the Judgment that all the accused-persons, who were members of the unlawful assembly were guilty of two murders cannot be sustained. There is no doubt that the witnesses during trial have given highly exaggerated version when they said that 6 to 7 persons were armed with guns. When the finding of the learned Trial Judge is that the murder was not. pre-planned, it is difficult to believe that the persons armed with gun would not use it when they shared the intention of Ishwar Dayal Mahto and Bhirung Mahto. The witnesses tried to implicate Amirchand Mahto who had not caused any bhala injury. The evidence, no doubt, is clear that all the accused-persons were members of unlawful assembly but it cannot be positively inferred that they shared common object in the murder of Jamuna Singh and Janardan Singh. It is not clear that the accused-persons shared common object. 47. In a recent decision of the Supreme Court in Badruddin V/s. State of U.P. -- , there were four accused-persons. The main offender was one Nizamuddin, who was alleged to have delt blow to the deceased with knife. One co-accused was alleged to have given lathi blow to the deceased. Three accused-persons including Nizamuddin had assaulted two eye-witnesses. On these facts, the Supreme Court observed: From the above facts, it is difficult to sustain the conclusion that there was common intention between the appellant and other persons to kill the deceased. Though establishing common intention is a difficult task for the prosecution, yet, however difficult it may be, the prosecution has to establish by evidence, whether direct or circumstantial, that there was a plan of meeting of mind of all the assailants to commit the offence, be it pre-arranged or on the spur of the moment, but it must necessarily be before the commission of the crime. Where direct evidence is not available, it has to be inferred from the circumstantial evidence. In the instant case, it is stated that the deceased alone was assaulted by Nizamuddin with knife and Siddiqui with lathi. The appellant dealt blows with lathi not to the deceased but to other witnesses. There is no direct evidence of common intention....Having regard to the facts and circumstances of the case, it is not possible to arrive at the conclusion that the appellant and others shared common intention to kill the deceased Shaukat, Ali. Consequently, we are unable to sustain the conviction of the appellant for the offence under Sec. 302/34, I.P.C.... 48. Similar problem has arisen in the present case. In my view, the ratio of the Supreme Court case can be applied to the facts of the present case. In the facts and circumstances of the case, all the appellants except Bhirung Mahto @ Bhirgunath Mahto are given benefit of doubt so far as their conviction under Sections 302/149 and 302/34, I.P.C. is concerned. All the appellants except Bhirgunath Mahto are held guilty under Sec. 147, I.P.C. The conviction of appellant Bhirung Mahto under Secs. 302 and 302/34, I.P.C. is fully supported by the evidence. He has also been convicted under Sec. 27, Arms Act and Sec. 148, I.P.C. Appellant Ishwar Dayal Mahto is already dead. 49. In the result. Cr. Appeal No. 356 of 1991, stands abated. Cr. Appeal No. 479 of 1991 filed by Bhirung Mahto @ Bhirgunath Mahto is dismissed and his conviction and sentence is confirmed. In Cr. Appeal No. 270 of 1991, there are ten appellants. They are given benefit of doubt so far as their conviction under Sections 302/149, I.P.C. is concerned. Their conviction under Sec. 148, I.P.C. and is also set aside. Conviction of appellants Ramnath Mahto, Chhathu Mahto, Ayodhya Mahto, Mutur Mahto and Amirchand Mahto under Sec. 148, I.P.C. and 27, Arms Act is set aside. Learned trial Judge has not imposed any sentence under Sec. 148 or 147, I.P.C. The ten appellants of Cr. Appeal No. 270 of 1991 are convicted under Sec. 147, I.P.C. and are sentenced to imprisonment for three months only. 50. All the three appeals are disposed of accordingly. 51. P.K. Sarkar, J. I agree.