Judgment S.K.Chattopadhyaya, J. 1. As these two appeals are directed against the common judgment of conviction and order of sentence passed by the 2nd Additional Sessions Judge, Arrah, in Sessions Trial No. 366 of 1982 and they have heard together, they are being disposed of by this common judgment. 2. In Cr. Appeal No. 46 of 1987 sole appellant Jagdish Singh, who has been convicted under Secs. 302/148, I.P.C. and 27 of the Arms Act and has been sentenced to rigorous imprisonment for life. In Cr. Appeal No. 596/86, there are nine appellants who have been convicted under Secs. 302/ 149, I.P.C. and have been sentenced to undergo rigorous imprisonment for life. The appellants Gupteshwar Nath Rai, Ram Sunder Singh, Raghunath Rai have further been convicted under Sec. 148, I.P.C. and sentenced to undergo rigorous imprisonment for two years. Appellant Chhabinath Rai, Gupteshwar Nath Rai and Raghunath Rai have; further been convicted under Sec. 27 of the Arms Act and sentenced to undergo rigorous imprisonment for three years. 3. On the basis of the fardbeyan of one Ramashish Rai, Officer-in-charge, Dumraon P.S. instituted a case on 21-3-86 at 3 a.m. The Prosecution story in short is that in between 8 p.m. to 9 p.m. on 20-3-81 when the informant was sitting along with deceased brother Sudershan Rai at the door of their house all of a sudden, the F.I.R. named accused-persons came hurling abuses on them carrying lethal weapons like gun, rifle, Bhala, country-made gun, etc. Appellant Jagdish Singh was shouting that the score would be settled today. Having seen them, Sudershan proceeded towards the accused-persons requesting them not to indulge into violence whereupon the appellant Jagdish opened blank fire twice. He fired the third shot from his rifle hitting the deceased Sudershan Rai, as a result he fell down. The appellants fled away. The informant further alleged that he caught hold of appellant Jagdish and snatched away his rifle from which shots were fired. The said rifle was produced before the Police Officer while recording the fardbeyan. On hearing hulla, other villagers including Kamakhya Rai, Ranjit Singh, satyendra Narayan Singh, Murlidhar Saw, Ramdeni Singh came and saw the occurrence. The motive, as alleged by the informant, is that Bahadur Singh has a ration shop and on the preceding evening the informant had gone to his shop for sugar, which was not supplied to him. On hearing hulla, other villagers including Kamakhya Rai, Ranjit Singh, satyendra Narayan Singh, Murlidhar Saw, Ramdeni Singh came and saw the occurrence. The motive, as alleged by the informant, is that Bahadur Singh has a ration shop and on the preceding evening the informant had gone to his shop for sugar, which was not supplied to him. For non-supply of sugar informant made a protest by saying that he would make a complaint to the appropriate authority. One Ram Sunder Singh, who was sitting there, threatened the informant with dire consequences. After completion of the investigations charge-sheet was submitted and subsequently charge was framed under Sections 302/149, I.P.C., Appellant Jagdish Rai was charged under Secs. 302 /148, I.P.C. and 27 Arms Act. 4. To substantiate its case prosecution has examined 12 witnesses, out of which P.W. 11 was a formal witness and P.Ws. 1,2,3,5 and 8 are said to be eye-witnesses to the occurrence. P.W. 4 is the witness of inquest over the dead-body and P.W. 6 was a seizure witness. Investigating Officer (I.O.) is P.W. 12 and the doctor who proved the post-mortem report is P.W. 9. The informant Ramashish Rai has been examined as P.W. 10. The defence of the appellants is of total denial of the occurrence and it is the prosecution party which had committed the offence in the manner as alleged by the informant. In order to prove their case, certified copy of the order dated 15-7-86 passed in counter-complaint case No. 134(2)/82 and certified copy of order dated 29-1-1982 passed in the aforesaid case have been filed, marked Ext. A and A/1 respectively. In their counter-case, the appellants alleged that it was Kamakhya Rai who tried to snatch the rifle from hands of appellant Jagdish Rai and in process there was accidental fire by the said Kamakhya Rai which hit the deceased Sudershan Rai, which resulting into his death. 5. Learned trial Court after scrutinising the evidence on record was of the opinion that the prosecution has subsequently established the guilt of the appellants and thus convicted the appellants as aforesaid. 6. The factum of death of Sudershan Rai has not been controverted on behalf of the appellants. But, it is to be decided as to whether it was the appellant Jagdish Rai who intentionally caused his death or it was an accidental death as suggested by the defence in their counter case. 7. 6. The factum of death of Sudershan Rai has not been controverted on behalf of the appellants. But, it is to be decided as to whether it was the appellant Jagdish Rai who intentionally caused his death or it was an accidental death as suggested by the defence in their counter case. 7. In this connection, evidence of informant Ramashish Rai may be scrutinised. According to him, at the time of occurrence, he was sitting with his deceased brother Sudershan Rai in front of the door of their house. It was night and there was electric light in the lane. He saw appellant Chhabinath Singh holding pistol and other appellants holding other weapons proceeded towards them hurling abuses. It was Jagdish, holding rifle, fired two shots, which did not hit any one. But when the deceased in order to specify them came forward and Jagdish fired at him, as a result Sudershan Rai died in the lane itself. The informant was behind the deceased. The informant snatched away the rifle from Jagdish. According to this witness, Murlidhar, Ranjit, Kamakhya, Ramjee and Satyender saw this occurrence. According to the informant, he had gone to take sugar from the ration shop of Bahadur Singh but sugar was not supplied to him. The informant protested by saying that he would complain about the same. Ram Sunder Singh was the family member of the appellant Bahadur Singh and was sitting there. He threatened the informant with dire consequences. On the night of occurrence the S.I. of Dumraon P.S. came and recorded the fardbeyan of the informant which is Ext. 5. He handed over the rifle of Jagdish to the S.I. The informant has admitted in his evidence that prior to the date of occurrence they had no dispute with Bahadur Singh. He also admitted that there was no witness to the dispute regarding supply of sugar, nor did he make any complaint in this regard. He also did not disclose this fact to any other person. According to him, before their arrival, he could guess that they were coming to settle the matter. Though he has a ration card but he did not show it to the I .O. He is specific in his deposition that except the happenings in the ration shop, there was no other reason for murdering the deceased. According to him, before their arrival, he could guess that they were coming to settle the matter. Though he has a ration card but he did not show it to the I .O. He is specific in his deposition that except the happenings in the ration shop, there was no other reason for murdering the deceased. Though in the F.I.R. he has alleged that Jagdish Rai fired twice in the air but in his deposition, he has improved his allegation by saying that both the fires were aimed at them and there was no blank fire as such. The accused were on their varandah when those two fires were shot but none of them tried to assault him (the informant). After snatching away the rifle from Jagdish Rai, the informant did not try to hit back him. His deceased brother was shot at from the distance of 4-5 feet of the rifle. After snatching away rifle from Jagdish Rai, the informant did not try to snatch weapon from other accused as they had already fled away. When the informant was snatching the rifle from Jagdish Rai, Jagdish Rai raised hulla that his rifle was being snatched but other appellants fled away towards their respective houses. According to the deposition of this witness, he did not even personally go to the police station nor ask any one to inform the police. Even when the Chaukidar and arrived then also the informant did not ask him to inform the police and as such he was unaware as to how the police could get the information of the occurrence. He has admitted about the counter-case filed by Jagdish Singh against them which was pending in the Court. According to him after snatching the rifle from Jagdish, he kept the same at the door of his house which was seen by the villagers. The police recovered only one empty cartridge from the place of occurrence. At this juncture, the deposition of the I.O., P.W. 12, may be looked into. On hearing some rumour, this witness proceeded to the place of occurrence with the police at 3 Oclock in the night. He recorded fardbeyan of the informant near his house. He seized rifle produced by the informant. This rifle was having number 771611. The production list is Ext. 3. According to the I.O. at that time smell of firing was coming out from the rifle. He recorded fardbeyan of the informant near his house. He seized rifle produced by the informant. This rifle was having number 771611. The production list is Ext. 3. According to the I.O. at that time smell of firing was coming out from the rifle. The place of occurrence, according to the I.O., is open square place on the west of which house of Ramjee Upadhayay is situated. By the side of this open space was the common road of the village, which runs from the west to the north. The dead body of Sudershan was lying on the western side of this road. He found the empty cartridge of the rifle from the distance of 30 feet and also recovered live cartridge of pistol near the Neem tree. The house of accused Chhabinath Rai is situated on the north-east angle and at a distance of 100 feet from the dead body. The I.O. also prepared sketch map, which is Ext. B. From the sketch map it appears that the place of occurrence as suggested by the I.O. in his deposition is contrary to the map. He recorded statement of Kamakhaya, Ranjit, Ramjee, Satyender, Murlidhar at the place of occurrence. From the house of Chhabinath Rai and others, he seized one pistol and live cartridge along with a leather belt. He found one single barrel gun and live cartridge under the bed. He seized the same. According to him, accused Jagdish never came to the police station for lodging any complaint on the same night. He further deposed that though electric light was there and he reached the place of occurrence at 3 Oclock in the night, entire village was dark due to load-shedding. However, as to whether the bulb was fused or not he did not care to see. This witness has admitted that he neither received any information from the Chaukidar, Dafadar or any one and heard only rumour. However, he did not note the name of the person from whom he heard such rumour. He heard this rumour at about 1 Oclock at the night. He noted this thing in the case diary and then and there started investigation. He learnt about the rumour from the distance of 100-150 yards from the police station but did not make entry regarding the same in the case diary. He heard this rumour at about 1 Oclock at the night. He noted this thing in the case diary and then and there started investigation. He learnt about the rumour from the distance of 100-150 yards from the police station but did not make entry regarding the same in the case diary. He admitted that Jagdish along with Nathuni had gone to the police station and lodged a complaint but as the same was not related to any cognizable offence, he did not record the same being a statement of an accused. Though he admits that snatching of rifle is a cognizable offence. The Investigating Officer on perusal of the case diary could not state specifically as to whether appellant Jagdish has surrendered before him or he was arrested. He admits that Jagdish Singh was known to him from before and in Mathila village there was always some dispute between the parties. On being asked by the defence, he specifically stated that no witness has shown him the electric bulb and not even the informant. According to him, during investigation presence of bulb should have been recorded in the case diary because means of identification has great value in such type of cases. He did not make any inquiry regarding ownership of the bullet of the pistol, which he recovered from the place of occurrence. He has no information regarding complaint filed by Jagdish against him. According to him, he did not give any importance of presence of appellant Jagdish Singh in the police station. While investigating the present case, he denied of having concocted the facts in connivance with the prosecution party. 8. From the aforesaid facts, it is apparent that burning of electric light in the lane in front of the house of the informant becomes doubtful. The Investigating Officer has clearly admitted that in such type of cases, means of identification has a great value and presence of any light should have been recorded in the case diary. Apart from this, the Investigating Officer even did not care to record the information lodged by Jagdish Singh in the case diary. He also did not explain as to why he did not register any case on the basis of complaint lodged by Jagdish Singh. 9. Mr. Pandey, learned Counsel for the appellants, strongly contends that very conduct of the I.O. of this case makes the prosecution case doubtful. He also did not explain as to why he did not register any case on the basis of complaint lodged by Jagdish Singh. 9. Mr. Pandey, learned Counsel for the appellants, strongly contends that very conduct of the I.O. of this case makes the prosecution case doubtful. According to him, when the I.O. has admitted that before going to the place of occurrence, he started investigation, the fact ought to have been recorded in the station diary that he started investigation on receiving some secret information. Therefore, according to Counsel, natural presumption would be that first of all appellant Jagdish Singh gave information about the snatching of the rifle by the informant and about the accidental death of deceased Sudershan Rai. 10. Mr. Ashwini Kumar, learned Government Counsel, has fairly submits that same thing is missing and so the link is incomplete. Moreover, he has drawn our attention to paragraph 11 of the deposition of the informant P.W. 10, from perusal of which it is clear that according to the informant, the accused-persons were standing in their verge (Kharanga). However, Mr. Sanjay Singh appearing for the informant has contended that merely because there was some irregularities in the investigation the whole prosecution story cannot be disbelieved. All the prosecution witnesses examined were present in or around the place of occurrence and P.W. 1 has stated that accused were proceeding from north to south hurling abuses against the deceased and his family members. Learned Counsel continues that had it been a scuffle between the informant and the appellant Jagdish Singh as suggested by the defence, the bullet could not have travelled in straight direction and snatching of rifle will not cause any injury as found by the doctor. 11. The alleged eye-witness Murlidhar Sah deposed as P.W. 1 that a counter-case was lodged by Jagdish Singh regarding snatching of rifle by the informant in which apart from the informant and some other persons, his two sons Jaigovind and Ganesh were also made accused. According to him, it was day of Holika Dahan and at 8-9 p.m. he was in front of the door of his house. He saw the appellants coming from north to south. This witness has also stated specifically about the weapons holding by these ten appellants. He could identify the accused-persons with the help of electric light, which was burning in the village. He saw the appellants coming from north to south. This witness has also stated specifically about the weapons holding by these ten appellants. He could identify the accused-persons with the help of electric light, which was burning in the village. He supported the prosecution case that first two fires did not hit anybody and when the deceased Sudershan Rai wanted to cool them, the appellant Jagdish Singh fire from a close range. The informant snatched away the rifle from the appellant Jagdish Singh. According to him in the morning of the day of occurrence, when, family members of Sudershan Rai had gone to the ration shop for sugar, they were abused and this is the reason for the said occurrence. This evidence that in the morning of the day of occurrence the family members of the informant were abused by Bahadur Rai in the ration shop is contradictory to the statement made by the informant himself because according to the prosecution case in the preceding evening the informant was given threat by one Ramsunder Singh with dire consequences. From his evidence, it is clear that most of the prosecution witnesses are in some manner related to the informant. He has categorically admitted of having enmity between his family and that of the accused and since 20-30 years some criminal and civil cases were going on between these two families. Though this witness has stated that the day of occurrence was Holika Dahan day and Holika Dahan has already over before the occurrence took place but this fact has not been stated in the F.I.R. He did not go for Holika Dahan and he was alone standing on the doorstep. The house of the appellants, are at a distance of about 20-25 Baans (Bamboo) and it was possible for him to see accused-persons from his house. When the accused-persons abusing the informant this witness could apprehend that those persons will assault Ramashish and Sudershan because he had information about the occurrence which took place in the ration shop. His deposition that when the accused were coming P.W. 8 and P.W. 5 were present in the lane is contradicted by himself in paragraph 16 where he was stated that after the occurrence the villagers started gathering out of which P.W. 8 and P.W. 5 were also there. His deposition that when the accused were coming P.W. 8 and P.W. 5 were present in the lane is contradicted by himself in paragraph 16 where he was stated that after the occurrence the villagers started gathering out of which P.W. 8 and P.W. 5 were also there. According to him, electric light was burning only in the lane and not in front of any house. He was present in the place of occurrence since the beginning and he also tried to prevent accused by urging that such occurrence should not take place. He admits that nobody tried to assault him on such request. This statement does not find support either from the F.I.R. or from evidence of the informant. According to P.W. 1 exact place of occurrence is north-south of the lane, but according to the I.O., dead-body was found in the western side of the lane. Moreover, the sketch-map indicates that dead-body was lying in the south of the lane. Thus there is material contradiction in the evidence of P.W, 1 and I.O. P.W. 12. This P.W. 1 has further stated that at the first sight, he found Sudershan Rai was in the varandah. According to him, he asked Sudershan Rai not to proceed further because the accused-persons were having guns there. When the fire was shot at Sudershan Rai, he was in the varandah itself. As that time nobody else was there, the accused could not be prevented from firing the shot. He also admits that when the rifle was snatched away from Jagdish Singh, he did not raise any hulla and this witness could not found any injury on the informant. This witness has tried to develop the prosecution case by stating that accused tried to kill the informant but could not succeed. First two fires were aimed at the informant but because, he concealed himself behind the wall, he could not be injured. According to him, Chaukidar was informed and the Chaukidar asked Dafadar to inform the police. He also admitted that he did not point out the electric light to the I.O. 12. The entire deposition of P.W. 1, according to us, are full of contradiction. He has admitted of having enmity between the two parties and it is also admitted that in the counter-case lodged by the appellant-Jagdish, his two sons were also made accused. Thus, he is highly interested witness. The entire deposition of P.W. 1, according to us, are full of contradiction. He has admitted of having enmity between the two parties and it is also admitted that in the counter-case lodged by the appellant-Jagdish, his two sons were also made accused. Thus, he is highly interested witness. Moreover, he has tried to improve the case by alleging something, which are not either in the F.I.R. or in the deposition of the informant himself. The informant, as seen above, no where has stated that the appellant Jagdish Singh tried to kill him and P.W. 1 also tried to prevent the accused-persons from doing unlawful act. 13. P.W. 2 Kamakhaya Rai though has deposed as eye-witness but from his deposition, it is clear that he was not a witness of the actual occurrence. In paragraph 7 of his deposition, he has categorically stated that he was inside the varandah of his house and when he came to the lane accused were coming from north and then he could see them. He asked the assailants as to why they did this but nobody gave any reply. According to him no other accused committed any overt act. He saw snatching of rifle by the informant from Jagdish Singh and after the occurrence was over 100-150 people assembled there but before the occurrence nobody was present. This witness also has enmity with the appellant Jagdish Singh as in the counter-case this witness and his two sons are also accused. Thus, according to us, evidence of P.W. 2 does not inspire any confidence. Moreover, presence of P.W. 1 and P.W. 2 has also falsified by the informant, as according to him, on hearing hulla other villagers including Kamakhaya Rai (P.W. 2) and Murlidhar Sah (P.W. 1) came there. 14. Ranjit Singh P.W. 3 is another alleged eye-witness but he is also an accused in counter-case filed by the appellant Jagdish Singh. This witness in order to justify his presence has deposed something which is not borne out by the F.I.R. According to this witness, the place of occurrence is near the house of the accused-persons. This fact does not find support from the sketch-map. Place of occurrence, according to this witness, is an open space and, as such, from inside the varandah the occurrence could be noticed. This fact does not find support from the sketch-map. Place of occurrence, according to this witness, is an open space and, as such, from inside the varandah the occurrence could be noticed. According to him, though earlier two fires were made consecutively but he did not see loading of another bullet in the rifle. The sketch-map does not indicate the house of this Ranjit but according to his deposition in between his house and that of Kamakhaya, house of Murlidhar was there. 15. P.W. 4 Haresh Nath Rai is a formal witness, in whose presence inquest was made. 16. P.W. 5 Ramjee Upadhaya though he claimed himself to be eyewitness to the occurrence but according to P.W. 1, this witness came after the occurrence was over. This witness has developed another story, which is contrary to the prosecution case. According to him, informant Ramashish Rai and deceased Sudershan Rai were sitting on the varandah and appellant Jagdish Singh fired shots which did not hit either of them. When the informant and the deceased came in front of the varandah and the deceased wanted to calm them down, the appellant, Jagdish Singh, fired another shot, which resulted in death of Sudershan. According to him, entire occurrence happened within 3-4 minutes, whereas other witnesses have stated that it took near about half an hour. From his evidence, it is clear that he was not an eye-witness to the occurrence because he came to the lane after hearing hulla. According to him, there was no electric post in the lane and the bulb was hanging in a bamboo and the same was burning. The bulb was connected with the matter of the informant and when the police came, the same was burning. This evidence is contradictory to the deposition of the I.O. himself, who has clearly stated that when he reached the place of occurrence, there was no light in the entire village and this I.O. also did not note the fact of hanging an electric bulb in his case diary. 17. P.W. 6 Birbahadur is a witness on seizure of blood stained earth from the place of occurrence. P.W. 7 Brahmdeo Rai has been tendered. 18. Another eye-witness is P.W. 8 Satyender Singh, according to whom occurrence took place at 9 p.m. When he heard sound of one fire, he came out from his house and the second fire was shot. P.W. 6 Birbahadur is a witness on seizure of blood stained earth from the place of occurrence. P.W. 7 Brahmdeo Rai has been tendered. 18. Another eye-witness is P.W. 8 Satyender Singh, according to whom occurrence took place at 9 p.m. When he heard sound of one fire, he came out from his house and the second fire was shot. He came to the door of Ganesh Rai and found that ten people with weapons were before the house of the informant. The appellant Jagdish Singh fired on Sudershan and he died. He also corroborates the story of snatching of rifle of Jagdish Singh. He could identify the accused by electric light, which was burning at that time in the lane. He reached near the dead body of Sudershan Rai after the accused-persons fled away. He heard from the informant the reason for the occurrence. This witness noticed the entire occurrence standing in front of the house of Ganesh Rai but does not clarify as to what was the distance between the place of occurrence and the house of Ganesh Rai. The sketch-map prepared by the I.O. also does not indicate the house of said Ganesh Rai. According to him, nobody resisted the informant when he snatched the rifle from appellant Jagdish and the informant kept the rifle near the door. Till this witness was present in the place of occurrence, the informant did not go near the dead body of his brother Sudershan Rai. 19. The doctor S. Huda, who performed the post-mortem report, could not be examined as he was away from India at that time. Post-mortem report has been proved by the doctor Radha Raman Prasad, Civil Assistant Surgeon of Buxar. He agreed with the view expressed by Dr. Huda that injury No. 1 was sufficient in ordinary course of nature to cause death. However, this witness could not say the distance from which the deceased was shot at as he was not a blastic expert. 20. From overall scrutiny of evidence of prosecution witnesses it is apparent that there was long-standing enmity between the two parties, for which civil as well as criminal cases were fought up to the High Court. Secondly, most of the eye-witnesses have admitted that in counter-case filed by the appellant Jagdish Singh either they or their sons and relatives were made accused. Secondly, most of the eye-witnesses have admitted that in counter-case filed by the appellant Jagdish Singh either they or their sons and relatives were made accused. Thirdly, almost all the eye-witnesses have deliberately tried to improve the prosecution case by deposing something, which are not to be found either from the F.I.R. or from the evidence of the informant himself. So far as means of identification is concerned, there is contradictory statement. The I.O. also did not find any light near about the place of occurrence. Thus, in between 8.30 p.m. to 9. p.m. in a village larib, it was difficult for the so-called eye-witnesses to identify the appellants. The evidence of the informant himself that on hearing Hulla Kamakhya Rai, Ranjit Singh, Satyendra Narayan Singh, Murlidhar Sah, Ramdeni Singh came along with other villagers makes the very presence of the alleged eye-witnesses at the time of occurrence doubtful. Moreover, there is also contradicting evidence regarding so-called happenings in the Ration shop. No witness is consisted with the fact as to whether the happenings in the Ration shop was in the morning of the day of occurrence or on the previous day evening. Under these circumstances, it is very difficult to rely on the evidence of such witnesses, who were determined to implicate the appellants in the present case. Above all the conduct of the I.O. is also not above board. According to him, on the basis of rumour, he had proceeded to the village but he failed to enter the said fact in the station diary. He also admits that neither the Chaukidar nor the Dafadar had informed him about the alleged occurrence. Moreover, he did not enquire as to whether electric bulb was fused or not as the same was a relevant fact inasmuch as P.W. 8 the alleged eye-witness has categorically stated that no bulb was hanging either from the pole or electric wire. The sketch-map Ext. 8 has also been prepared in a slip shot manner, which does not indicate as to whether place of occurrence as suggested by the prosecution was believable. 21. In the case of Ram Ashrit Ram V/s. State of Bihar reported in 1982-S.C. Cr. The sketch-map Ext. 8 has also been prepared in a slip shot manner, which does not indicate as to whether place of occurrence as suggested by the prosecution was believable. 21. In the case of Ram Ashrit Ram V/s. State of Bihar reported in 1982-S.C. Cr. R. page 63, their Lordships have observed that when all the material witnesses of the prosecution were either inter-related or otherwise interested in the prosecution, their testimony had to pass the test of close and severe scrutiny before their testimony could be safely acted upon". Suffice it to say that in the absence of corroboration to a material extent in all material particulars, it was extremely hazardous to convict the appellants on the basis of the testimony of these highly interested, inimical and partisan witnesses, particularly when it bristles with improbable versions and material infirmities. 22. There are many other infirmities and contradiction in the evidence of the prosecution witnesses of which I have already indicated above. Thus, in the absence of a corroboration to a material extent in all material particulars, the appellants are entitled to get benefit of doubt. 23. I, therefore, allow these appeals, set aside the conviction and order of sentence and acquit the appellants from all the charges levelled against them. The appellants, who are on bail, shall stand discharged from their bail-bonds. R.N.Sahay, J. 24 I agree.