Judgment N.N.Singh, J. 1. All these three appeals arising out of judgment of conviction and order of sentence dated 5.2.1986 passed by 5th Additional Sessions Judge, Arrah in Sessions Trial No. 256 of 1982, are being disposed of with this common judgment. As per supplementary affidavit filed in Criminal Appeal No. 129 of 1986 appellants Satya Narayan Singh and Hari Narayan Singh of Criminal Appeal No. 129 of 1986 and sole appellant Radhe Shyam Choubey of Criminal Appeal No. 187 of 1986 died during the pendency of these appeals and as such their appeals stand abated. Now the cases of all four appellants of Criminal Appeal No. 123 of 1986 and of remaining two appellants Hridya Narayan Singh @ Bhola Singh and Jag Narayan Singh of Criminal Appeal No. 129 of 1986 could only be considered. 2. The trial Court had convicted deceased appellant Satya Narayan Singh, deceased, appellant Hari Narayan Singh and deceased appellant Radhey Shyam Choubey along with appellants Jag Narayan Singh Yadav and Hridya Narayan Singh @ Bhola Singh under Sec. 302 of the Indian Penal Code and the remaining appellants. Dina Nath Singh, Ram Lakhan Rai, Lalan Singh Yadav and Ram Nath Singh Yadav convicted under Secs. 302/149 of the Indian Penal Code and were sentenced to undergo life imprisonment and all the appellants were further convicted under Sec. 148 of the Indian Penal Code and 27 of the Arms Act and sentenced them to undergo rigorous imprisonment for two years and three years respectively each. Deceased appellant Hari Narayan Singh was further convicted under Sec. 379 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for two years for taking away the rifle of Kashi Nath Singh. 3. The prosecution case as disclosed in the fardbeyan (Ext. 4) of P.W. 9 Ramdeo Singh recorded at 12.00 noon on 21.10.81 at the tube well of Rangnath Pandey was that Ram Ekbal Singh and Kashi Nath Singh (both deceased) had gone in the morning for irrigation of their field in Karanpura. Badhar situated in south of village Barki Puraini. 3. The prosecution case as disclosed in the fardbeyan (Ext. 4) of P.W. 9 Ramdeo Singh recorded at 12.00 noon on 21.10.81 at the tube well of Rangnath Pandey was that Ram Ekbal Singh and Kashi Nath Singh (both deceased) had gone in the morning for irrigation of their field in Karanpura. Badhar situated in south of village Barki Puraini. It was also claimed that Kashi Nath Singh was carrying his rifle for his protection and at about 10.00 a.m. when the informant proceeded from his house to relieve his brother Ram Ekbal Singh for taking breakfast at about 10.30 a.m. when he reached in the Badhar, he saw Ram Ekbal Singh and Kashi Nath Singh standing beneath a banyan tree in the field of one Jaleshar Singh and the informant also saw those appellants alongwith 11 others coming from south towards that Banyan tree among whom he identified nine appellants. Further case of prosecution was that appellant Satya Narayan Singh (since dead) ordered whereupon appellant Hari Narayan Singh (since dead) fired his rifle hitting Ram Ekbal Singh who fell down under the tree. It was further claimed that Kashi Nath Singh tried to run away but he was also fired at by appellant Jag Narayan Singh with D.B.B.L. gun as a result of which Kashi Nath Singh also fell down. Further case of prosecution was that the accused persons rushed towards the injured and on reaching near them, appellant Hridya Narayan Singh @ Bhola Singh placed his gun over the mouth of Kashi Nath Singh and fired it and similarly appellant Satya Narayan Singh placed his rifle on the head of Ram Ekbal Singh and fired it and thereafter Radhe Shyam Choubey placed his gun on the abdomen of Ram Ekbal Singh and fired. It was also claimed that appellant Hari Narayan Singh took away the rifle of Kashi Nath Singh which had fallen on the ground and all the miscreants fled away firing in the air. The informant out of fear ran towards village and it was claimed that villagers present in the Badhar, namely, Sheo Narayna Singh (P.W. 6), Gharhu Naraina Singh (P.W. 3), Jagarnath Singh (P.W. 7), Chandrma Singh (P.W. 5) and Hari Charan Singh (P.W. 8) witnessed the occurrence. The informant out of fear ran towards village and it was claimed that villagers present in the Badhar, namely, Sheo Narayna Singh (P.W. 6), Gharhu Naraina Singh (P.W. 3), Jagarnath Singh (P.W. 7), Chandrma Singh (P.W. 5) and Hari Charan Singh (P.W. 8) witnessed the occurrence. The informant out of fear did not go to police station and when he saw the police coming from a distance he went to tube well and made his statement over which he proved his signature (Ext. 1/6). 4. On the basis of the fardbeyan (Ext. 4) formal F.R. I. (Ext. 6) was drawn up and registered Rajpur P.S. Case No. 136 of 1981 and the police took up investigation and after investigation, submitted chargesheet and after cognizance and commitment the accused persons were put on trial and the appellants were convicted and sentenced as aforesaid out of whom three appellants have died as aforesaid. 5. The defence as gathered from the suggestion put to P.W., evidence of D.Ws. statement of appellants under Sec. 313 of the Code of Criminal Procedure and the argument appeared to be that true version of the occurrence was suppressed by the prosecution and that appellants were falsely implicated in this case due to village politics and enmity. The defence case appeared to be that both the deceased Ram Ekbal Singh and Kashi Nath Singh had left their houses much before sunrise for the purpose of irrigation of their lands and that Kashi Nath Singh was armed with a rifle who had an incounter with the local naxalites and that in that course Kashi Nath Singh and Ram Ekbal Singh were killed by the Naxalites and who also succeeded in snatching away the rifle of Kashi Nath Singh. According to the defence version Kashi Nath Singh and Ram Ekbal Singh were killed in between 3.00 a.m. to 4.00 a.m. on 21.10.81 and information to that effect regarding firing between two groups from early morning was reported to police station which was recorded as Station Diary Entry (Ext. B) of Bachha Singh Ram Asish Rai (P.W. 2). It was also claimed that the occurrence was not witnessed by anybody and subsequently a concocted case was lodged with due deliberation. 6. 13 witnesses were examined by the prosecution in support of its case and 11 D.Ws. were also examined by the defence side. Out of 13 P.Ws. B) of Bachha Singh Ram Asish Rai (P.W. 2). It was also claimed that the occurrence was not witnessed by anybody and subsequently a concocted case was lodged with due deliberation. 6. 13 witnesses were examined by the prosecution in support of its case and 11 D.Ws. were also examined by the defence side. Out of 13 P.Ws. P.W. 2 Ram Asish Rai and P.W. 10 Shyam Narayan Singh were tendered for cross-examination. P.W. 11 Vakil Hassan a constable who accompanied the dead bodies for post-mortem examination and P.W. 1 Kashi Nath Rai a witness on the inquest reports (Ext. 7 and 7/1) and P.W. 4 Kalika Singh who proved his signature on Exhibit 1/4 of seizure-list (Ext. 9) are all formal witnesses, while P.W. 12 is doctor Radha Raman Prasad who held post-mortem examination on both the dead bodies of Ram Ekbal Singh and Kashi Nath Singh and proved the post-mortem reports (Exts. 5 and 5/1), P.W. 13 Rama Nand Ram is the Investigating Officer of this case. The remaining six witnesses P.W. 9, informant, Ramdeo Singh, P.W. 3 Gharhu Narayan Singh, P.W. 5 Chandrma Singh, P.W. 6 Sheo Narayan Singh, P.W. 7 Jagarnath Singh and P.W. 8 Hari Charan Singh claimed to be eye-witnesses of the occurrence. 7. Out of 11 D.Ws. examined by the defence D.Ws. 1 to 4 and 6 stated about alibi of one accused Ram Nath Singh who is not an appellant here. D.W. 5 Birendra Prasad stated to have sold his land to Satya Narayan Singh. D.W. 7 Moti San deposed regarding location of land in that Badhar. D.W. 8, Ram Chandra Prasad was a formal witness who proved the prescriptions (Exts. F and F/1). D.W. 9, Hawaldar Baban Singh is also a formal witness who proved S.D. Entry Nos. 27 and 28 dated 22.10.81 as marked Exhibits G/a and G/b. D.W. 10 Tung Nath Singh was also a formal witness who proved bail bonds (Ext. H. series) and D.W. 11 Brij Bihari Singh proved S.D. entry made on the statement of Bachha Singh (Ext. P). 8. P.W. 12 Dr. Radha Raman Prasad who held post-mortem examination on both the dead bodies stated that on 22.10.81 when he was posted as C.A.S. at Buxar Sub-Divisional Hospital the dead body of Ram Ekbal Singh was examined and post-mortem examination held by a medical board consisting of this witness, P.W. 12, Dr. P). 8. P.W. 12 Dr. Radha Raman Prasad who held post-mortem examination on both the dead bodies stated that on 22.10.81 when he was posted as C.A.S. at Buxar Sub-Divisional Hospital the dead body of Ram Ekbal Singh was examined and post-mortem examination held by a medical board consisting of this witness, P.W. 12, Dr. A.S. Hoda and Dr. D.N. Sinha both C.A.S, of the same hospital. He further stated that post-mortem examination was held at 12.10 p.m. and following ante-mortem injuries were found on the dead body of Ram Ekbal Singh: (i) One oval wound of entrance 1 1/2" × 1/2" × abdominal cavity deep with regged and inverted margin on the right side of the abdomen with blackening of the surrounding skin. (ii) One oval wound of entrance 3/4" × 1/4" × thoracic cavity deep with ragged and inverted margin at the upper part of sternum with its fracture and contineous with injury No. 3 perforating the left lung. (iii) One oval wound of exit 1 1/2" × 1/2" × left thoracic cavity deep with ragged and inverted margin on the upper part of left upper arm with fracture of left humerous, left scapula of upper ribs on the left side and continuous with injury No. 2. (iv) One oval wound of entrance 1/2" × 1/4" × cranial cavity deep on the left side of forehead with fracture of the frontal bone with ragged and inverted margin. (v) One oval wound of exit 2" × 1" × cranial cavity deep with ragged and inverted margin over the right parietal region with fracture of the right parietal bone and protrusion of brain matter. (vi) One lacerated wound 1 1/2" × 1/2" × 1/2" on the back of the right middle finger with ragged and inverted margin and fracture of the bone and charring of the surrounding skin. (vii) Four circular wound of exit of the pin head size around injury No. 3. (viii) One circular wound of exit 1/2" × 1/4" below injury No. 3. 9. On dissection the brain haemispheres were lacerated and torn, and left thoracic cavity was full of blood and the left lung was perforated at one place. The small intestine was perforated at three places. The liver and gall bladder were tarn. Sixty eight small pellets and one piece of corn were recovered found embedded in the anterior abdominal wall of the left side. The small intestine was perforated at three places. The liver and gall bladder were tarn. Sixty eight small pellets and one piece of corn were recovered found embedded in the anterior abdominal wall of the left side. The doctor opined that all the injuries were caused by fire arm from a close distance and the death was caused due to shock and haemorrhage as a result of the above injuries. The time elapsed since death was about 20 to 48 hours. He further stated that the post-mortem report was written by Dr. A.S. Hoda in his presence and he bore his signature also including three doctors conducting the post-mortem examination and proved the post-mortem report (Ext. 5). He further opined that the injuries were sufficient in ordinary course of nature to cause death which were by fire arm such as rifle and gun. 10. P.W. 12 further stated that post-mortem examination on the dead body of Kashi Nath Singh another deceased was also held at 1.00 p.m. on the same day and following ante-mortem injuries were found on his person: (i) One wound of entrance 1/2" × 1/2" with ragged and inverted margin and oval cavity deep and fracture of the mandible and tattooing of the surrounding skin. (ii) One wound of exit 4" × 1" × oval cavity deep with ragged and everted margin and fracture of the mandible and laceration of the tongue. (iii) One wound of entrance of pin head site on the front of left thigh. (iv) 70 wounds of entrance of pellets of the size of pin head scattered all over the back most of the wounds were muscle deep, some entered into thoracic cavity and perforated the lungs and some entered into abdominal cavity and three entered in the spleen and caused bleeding from it. The abdominal cavity and thoracic cavities continued blood as found on dissection. 10 small pellets were recovered from the wound on the back and sealed under the signature of Dr. S. Hoda and were handed over to the constable. The doctor opined that all the injuries were caused by fire arm such as gun and further opined that the death was caused due to shock and haemorrhage as a result of above injuries and those injuries were sufficient in ordinary course of nature to cause death. S. Hoda and were handed over to the constable. The doctor opined that all the injuries were caused by fire arm such as gun and further opined that the death was caused due to shock and haemorrhage as a result of above injuries and those injuries were sufficient in ordinary course of nature to cause death. The time since elapsed between death and post-mortem examination was about 20 to 48 hours. He proved the post-mortem report written by Dr. S. Hoda as exhibit 5/1 and signed by all the three doctors including P.W. 12. He further stated that doctor S. Hoda had gone to Arabian country and he is not available in India. From the evidence of P.W. 12 this much is established that Ram Ekbal Singh and Kashi Nath Singh died a homicidal death as a result of fire arm injuries caused by them. 11 The prosecution has examined six eye-witnesses in support of its case who claimed that they were near the place of occurrence at that time and all of them stated the minutes detail of assault on each of the victim although the attacked was simultaneous. Sri Rana Pratap Singh, the learned Counsel for the appellants, contended that these witnesses have given parrot like statement regarding the occurrence and all of them except P.W. 5 Chandrma Singh are highly interested witnesses in view of the fact that P.W. 3 Gharhu Narain Singh is brother of deceased Kashi Nath Singh and P.W. 9 informant Ramdeo Singh is brother of deceased Ram Ekbal Singh. P.W. 2 admitted that P.W. 7 Jagarnath Singh is son of Dalsinghar Singh who happens to be own uncle of P.W. 3. P.W. 7 admitted that Suba Singh was uncle of Kashi Nath Singh and P.W. 6 Sheo Narayan Singh is son of that Suba Singh. P.W. 10 admitted that Shyam Narayan Singh is son of Suba Singh. P.W. 8 Hari Charan Singh is son of Banshropan Singh who was son of Charitar Singh and that Charitar Singh was uncle of P.W. 9 Ramdeo Singh and deceased Ram Ekbal Singh. It was pointed out by Sri Singh, the learned Counsel for the appellants that P.W. 3 who claimed to be a teacher working in a school of another village claimed that he was on leave on that day but nothing was produced to support his claim. It was pointed out by Sri Singh, the learned Counsel for the appellants that P.W. 3 who claimed to be a teacher working in a school of another village claimed that he was on leave on that day but nothing was produced to support his claim. It was rightly argued by Sri Singh that his conduct in not informing the police regarding the incident goes to support the defence stand that he was not present. It was also pointed out that the statement of P.W. 6 that P.W. 3 placed his Gamchha on the face of his brother Kashi Nath Singh was not supported by any other P.Ws. or by the I.O. It was also pointed out that P.W. 7 Jagarnath Singh admitted to have collected that fired cartridges which amounted to tempering of evidence. According to prosecution both the deceased Kashi Nath Singh and Ram Ekbal Singh left their house in early morning for irrigation of their field. According to prosecution case the occurrence did take place at 10.30 a.m. but the prosecution has not produced a single witness to say as to what both the deceased were doing for three to four hours and what actually happened which resulted in death of both Kashi Nath Singh and Ram Ekbal Singh. In the fardbeyan (Ext. 4) there is absolutely no mention as to how and under what circumstance the occurrence originated. P.W. 3 Gharhu Narayan Singh stated in paragraph-3 of his evidence that the cause for the occurrence was irrigation for paddy field. P.W. 9, the in formant, stated that the occurrence did take place due to dispute regarding irrigation. He admitted that field of Satya Narayan Singh was not irrigated from Hethuwa canal rather his field was irrigated from Chausha canal and that the accused persons had blocked the flow of water of the Karha 400 yards south of the banyan tree and had diverted the water to their field which used to be irrigated from Chausha canal. If this be so, there was no reason for the accused persons to be aggressive and to cause the death of two persons. 12. P.W. 5 though claimed to be an eye-witness of the occurrence cannot be relied upon in view of the statement of P.W. 13 the I.O. who in para 62 of the evidence stated that he (P.W. 5) had not named any accused before him. 12. P.W. 5 though claimed to be an eye-witness of the occurrence cannot be relied upon in view of the statement of P.W. 13 the I.O. who in para 62 of the evidence stated that he (P.W. 5) had not named any accused before him. It was pointed out on behalf of the appellants that as per prosecution story Satya Narain Singh, Hirdya Narayan Singh and Radhe Shyam Choubey had fired upon the deceased at point blank range on different part of the body, but none of those injuries had scorching or burning signs to indicate that it were fired from a close range. P.W. 12 admitted that blackening around injury No. 1 on the person of Ram Ekbal Singh might be possible due to spin bullet. I find weight in this argument that in absence of any scorching and charring mark, the evidence of P.Ws. that shots were fired from close range could not be believed. 13. A sketch map has been prepared by the I.O. which has been marked as Exhibit 8. I fully agree with the contention of the learned Counsel for the appellants that only that portion of the sketch map can be looked into which is based on the own observation of the I.O. P.W. 13. Reliance can be placed in this connection on a decision of the case of Jagdish Narayan V/s. The State of U.P. reported at A.I.R. 1996 S.C. 3138, where it was held that sketch map would be admissible so far as it indicate all that Sub-Inspector saw himself at the spot but any mark put on the sketch map based on the statement of witness could be inadmissible in view of Sec. 162 of the Cr.P.C. as it will be no more than the statement made to the police during investigation. However, the I.O. P.W. 13, stated that he found the Karha blocked by fresh earth. P.W. 13 had also stated that a Karha starts from Hethuwa canal and running east to west was bifurcated in two sides and whereas one went towards north the other went towards west and near Banyan tree, it again bifurcated in two sides one going towards north and one going towards west which, according to him, irrigated the land of Barki Puraini Badhar. P.W. 13 further stated that one branch of Karha flowed towards west and irrigated the field of Karanpura Badhar and he had found the flow of water through Karha blocked which went north towards the Banyan tree. I find weight in the argument of the learned Counsel for the appellants that the blocking at that place indicated that it could never be done by the person who wanted to get paddy field of Barki Puraini Badhar irrigated. P.W. 8 Hari Charan Singh in para 13 and P.W. 2 Bachha Rai in paragraph 4 in their evidence stated that accused Satya Narayan Singh had got field in Barki Puraini Badhar. 14. The learned Counsel for the appellants contended that the time of occurrence as mentioned in the fardbeyan (Ext. 4) did not find support from the medical evidence and he further contended that this fardbeyan should not have been treated-as F.I.R., in view of the information given by P.W. 2 Bachha Rai in the police station at 10.55 a.m. on the basis of which the I.O. rushed the place of occurrence and recorded the fardbeyan (Ext. 4). Interestingly such important witness P.W. 2 Bachh Rai @ Ram Ashish Singh was tendered by the prosecution, obviously to avoid a situation which did not support the prosecution case. P.W. 2 Bachha Rai admitted to have gone to the police station leaving the village at 10.00 a.m. and to have given information to the I.O. P.W. 13 got that information given by P.W. 2 recorded in station diary which was numbered as S.D. Entry No. 344 and was marked as Ext. P, that was based on a written report of P.W. 13 which has been marked as Ext. A. In that report it was mentioned that there was arm conflict between two sides for irrigation and that both sides were resorting to gun firing from different position from the early morning. P, that was based on a written report of P.W. 13 which has been marked as Ext. A. In that report it was mentioned that there was arm conflict between two sides for irrigation and that both sides were resorting to gun firing from different position from the early morning. When P.W. 2 was confronted, he took the plea that he was illiterate and can write only letter A. He went to the extent of saying that when he informed the S.I. that Satya Narayna Singh had gone to collect a mob, the S.I. Asked to give him in writing and that a plain paper was given to him on which he simply wrote letter (ii) but when confronted with his own signature made on his deposition on 18.11.83, P.W. 2 had to admit that he can only sign. This goes to show that prosecution wanted to withheld the information given by P.W. 2 regarding firing going on from early morning and for that he was tendered for cross-examination and P.W. 2 took the plea of being illiterate though he had put his signature on the deposition. Thus, according to the learned Counsel for the appellants it goes to show that true picture of the incident has been purposely withheld and a concocted version of the incident had been stated by the P.Ws. It was pointed out on behalf of the appellants that evidence of P.W. 1 Kashi Nath Rai that he had received, information regarding death of Ram Ekbal Singh and Kashi Nath Singh before 10.30 a.m. at Rajpur Block office situated at a distance of 4 Km. which goes to show that occurrence did take place much earlier than 10.30 a.m. Even the I.O. stated that he took one hour to reach at the P.O. by jeep. 15. Another circumstance shown by the learned Counsel for the appellants was that the post-mortem reports (Exts. 5 and 5/1) also go to show that the occurrence did take place much before 10.30 a.m. According to the post-mortem reports the small intestine of both the deceased were full of gas and fiscal matter as also food residual. As stated by P.Ws. 2 & 9 that both the deceased had not taken any breakfast. The contents of intestine indicated that they had not defecated which normally indicated that the occurrence did take place in the early morning. As stated by P.Ws. 2 & 9 that both the deceased had not taken any breakfast. The contents of intestine indicated that they had not defecated which normally indicated that the occurrence did take place in the early morning. P.W. 12, the doctor holding post-mortem examination opined that the time elapsed since death was 20 to 48 hours from the time of post-mortem examination i.e. 12.30 p.m. to 1.00 p.m. on 22.10.81. The learned Counsel for the appellants contended that according to the defence version the deceased had confronted in the early morning with the extremists who not only killed them but also took away the rifle of Kashi Nath Singh. 16. Another point raised by Sri Rana Pratap Singh, the learned Counsel for the appellants was that the Sanha Entry No. 344 (Ext. P-A) should have been treated as F.I.R. P.W. 13, the I.O. stated that for verification of the information he had rushed to the P.O. and as such he did not register a case on the basis of that Sanha Entry. It has been held in the decision of Ram Singh Bawaji Jadeja V/s. The State of Gujarat reported at (1994) SCC 685, that if on the information given, which is not criptic and on the basis of that information the Officer Incharge prima facie satisfied about the commission of cognizable offence, and he proceeded from the P.S. after recording such information to investigate, any statement made by any person in respect of the said offence including about participants shall be deemed to be a statement made by a person to the police officer in course of investigation under Sec. 162 of the Cr.P.C., P.W. 13 in, para 37 of his evidence admitted that after re-reading the written report (Ext. A) of P.W. 2 that a cognizable offence was made out. In view of this admission of P.W. 13 the fardbeyan (Ext. 4) would normally be barred under Sec. 162 of the Cr.P.C. 17. A) of P.W. 2 that a cognizable offence was made out. In view of this admission of P.W. 13 the fardbeyan (Ext. 4) would normally be barred under Sec. 162 of the Cr.P.C. 17. The learned Counsel for the appellants further contended that appellant Jag Narayan Singh Yadav and Dina Nath Singh as stated by P.W. 13 in para 10 belonged to village Ahiyapur and had no land in that Badhar and similarly appellant Ram Nath Singh Yadav was resident of village Ismailpur and had no land there and as such their presence at the P.O. and participation in this occurrence connection with irrigation of the land is not understandable. He further contended that the position of the dead bodies which were found by P.W. 13 lying parallel to each other also did not fit in the prosecution story as according to witnesses, after the death of Ram Ekbal Singh, Kashi Nath Singh tried to run away and was shot dead. It was also contended that when the deceased were standing and the appellants were coming from the south and the deceased wanted to run way towards east there can be no injury on the left side of the body and this goes to support the defence version that nobody and seen the occurrence which took place in the early hours. 18. Summing up the entire discussion made above, I find that fardbeyan (Ext. 4) was barred under Sec. 162 of the Cr.P.C. and S.D. Entry No. 344 (Ext. P-written report Ext. A) should have been treated as F.I.R. in this case and according to that version the occurrence did take place from early morning in which two factions were firing on each other. Thus, the true version has not been brought on record. I have already held that witnesses are not reliable as they were highly interested and had given parrot-like statement and the medical evidence also did not support the prosecution case. On the basis of the discussions made above, I find and hold that it is fit case in which it should be held that the prosecution failed to prove its case beyond doubt. 19. In the result, these appeals are allowed and order of conviction and sentence passed against the appellants is set aside and the appellants are discharged from the liability of their bail bonds. S.K.Chattopadhyaya, J. 20 I agree.