Judgment M.L.Visa, J. 1. Both these appeals have been heard together and are being disposed, of by this common judgment as they arise out of the same judgment dated 4.9.1995 and order dated 6.9.1995 passed in Sessions Trial No. 222/1992 convicting and sentencing the appellants Awadhesh Rai and Rohit Rai to undergo life imprisonment under Section 302 IPC and remaining appellants to undergo life imprisonment under section 302 read with section 149 IPC. Appellants Awadhesh Rai and Rohit Rai have further been found guilty and have been convicted under section 148 IPC as well as under section 27 of the Arms Act and the remaining appellants have further been found guilty and have been convicted under section 147 IPC but no separate sentences have been passed for these charges against the appellants. 2. Briefly stated the case of the prosecution is that on 12.9.92 informant Shaligram Rai (PW 8) along with his elder brother Bishnu Prasad Rai and his nephew Vijay Kumar Rai (PW 7) had, from his village Basbariya, gone to village Bhurkunda to see the ailing grandson of his elder brother Bishnu Prasad Rai. They ali had gone to Bhurkunda on their respective bicycles. They stayed for the night at Bhurkunda. On the next day i.e. on 13.9.92 in the morning at about 7.15 P.M. they all three on their bicycles started for their village Basbariya. After passing village Katbadia they were crossing Jagatpur field and were proceeding towards west. After Jagatpur field there is forest and the road goes through this forest. When they were still about 100 yards from the forest, all the appellants came out from the forest. Appellants Awadhesh Rai and Rohit Rai were armed with pistols. Appellant Abhimanyu Rai was carrying a bag. Other appellants were armed with lathis. All the appellants ran towards the informant, his elder brother and his nephew. The informant raised alarm saying that enemies had reached and asked his eider brother to run. Bishnu Prasad Rai leaving the road started running towards south. Informant and his nephew Vijay Kumar Rai (PW 7) started running towards east. After going for about 100 yards when the informant turned back he saw that all the appellants were chasing Bishnu Prasad Rai who after leaving his bicycle was running. Bishnu Prasad Rai leaving the road started running towards south. Informant and his nephew Vijay Kumar Rai (PW 7) started running towards east. After going for about 100 yards when the informant turned back he saw that all the appellants were chasing Bishnu Prasad Rai who after leaving his bicycle was running. Informant and his nephew started raising hulla in the meantime, appellants Suchit, Mazister Rai, Mritunjay Rai and Kailu Rai stopped Bishnu Prasad Rai from front and started assaulting him by brickbats. Other appellants also surrounded him. Appellant Akhileshwar Rai gave order for killing Bishnu Prasad Rai. On this order, appellant Awadhesh Rai fired two shots and appellant Rohit Rai fired one shot at Bishnu Prasad Rai who fell down. All the appellants thereafter fled away towards forest. The informant and his nephew went running near to Bishnu Prasad Rai and found that he had died and had injuries on his chin and on left side of abdomen and lacerated injuries on different parts of body and one of his tooth was broken. About the genesis of occurrence it is said that there was long standing enmity between prosecution party and the appellants and several criminal cases were pending between them. Sheo Mangal Singh (PW 10), the I.O. of this case, at the relevant time was posted at Madhupur Police Station where on 13.9.92 at about 12.35 P.M. an information was received that near the village Kanbadia an untoward incident had taken place. This information was recorded in the Station Diary and Officer Incharge of Madhupur Police Station deputed Sheo Mangal Singh (PW 10) for verification of the matter and then he (PW 10) along with ASI, Arvind Kumar Singh and Constable no. 274 (none of them examined) proceeded for the place of occurrence and reached there and recorded the Fardbeyan of informant (Ext. 2) at 2 P.M. The I.O. prepared inquest report (Ext. 5) of the dead body and seized blood stained soil, a plastic shoe, a bicycle and a small bottle containing kerosene oil, together with a ball of twine (Sutll), small iron pieces wrapped in small piece of cloth and orange coloured powder wrapped in a tinsel, all kept in a white bag and prepared seizure list (Ext.3). The I.O. sent the dead body for post mortem examination and came to the Police Station where a case was registered after drawing formal FIR. The I.O. sent the dead body for post mortem examination and came to the Police Station where a case was registered after drawing formal FIR. After investigation chargesheet against alt the appellants under section 302/34 IPC was submitted. After commitment of the case to the court of Sessions charges under sections 147, 148 and 302/149 IPC against all the appellants and additional charges under sections 302/34 IPC and 27 of the Arms Act against appellants Rohit Rai and Awadhesh Rai were framed and ait the appellants were put on trial. 3. The defence of the appellants as it appears from the witnesses examined on their behalf as well as from the trend of cross examination of prosecution witnesses was that on the day of occurrence at about 8.30 A.M. one Makhan Hazra had informed Vijay Kumar Rai (PW 7), son of deceased, that somebody had committed murder of his father in Mahbadla forest and thereafter Vijay Kumar Rai at about 9 A.M. passed this information to the informant who at that time was attending a Panchayati in village Roshan and thereafter informant arid Bishnu Prakash Rai went to the place of occurrence. According to the appellants, in the Fardbeyan which was first recorded their names were not in it but after due deliberations another Fardbeyan was prepared on the night of the day of occurrence at the Police Station falsely implicating them for their enmity with the prosecution party on account of some land dispute. The court below after trial found the appellants guilty and accordingly convicted and sentenced them as indicated above. 4. The prosecution has examined 10 witnesses in this case. Shaligram Rai (PW 8) is informant and is said to be eye witness to the occurrence. Vijay Kumar Rai (PW 7) is the son of the deceased and is also said to be eye witness to the occurrence. Sudama Pandey (PW 5) has been tendered. Ganesh Choudhary (PW 4) and Kodd Mahra (PW 6) had reached the place of occurrence after hearing hulla and were told by the informant that appellants had committed the murder of his elder brother. Sudama Pandey (PW 5) has been tendered. Ganesh Choudhary (PW 4) and Kodd Mahra (PW 6) had reached the place of occurrence after hearing hulla and were told by the informant that appellants had committed the murder of his elder brother. Sanjay Kumar Rai (PW 2) is a witness who after hearing about the murder had gone to the place of occurrence and had seen the dead body of the deceased and in his presence the I.O. seized a pair of shoes, a bicycle, small iron pieces wrapped in a piece of cloth, orange coloured powder in a tinsei, a ball of twine etc. and had put the signature on the seizure list prepared by the I.O. Rama Nand Singh (PW 3) after hearing about the occurrence had gone to place of occurrence where he had seen the dead body of the deceased and the informant told him about the appellants. He also put his signature (Ext. 1/4) on the fardbeyan of informant. Dr. Anand Kumar Jain (PW 9) is the doctor who had held autopsy on the dead body of the deceased. Sheo Mangal Singh (PW 10) is the I.O. 5. Dr. Anand Kumar Jain (PW 9) in his evidence has said that on 14.9.92 he was posted at Sadar Hospital, Deoghar and on that day he held post mortem examination on the dead body of the deceased Bishnu Prasad Rai and found the following ante mortem injuries : (i) Lacerated wound 2"x1/2"x scalp deep about 2" behind right ear on the back of scalp. (ii) Multiple abrasion 1/2" x 1/4", 1/4" x 1/6" and 1/4" in diameter on right side of the neck. (iii) Lacerated wound on right side of face in front of right ear 1" x 1/4" x 1/6". (iv) Lacerated wound above right eyebrow 1" x 1/4" x 1/6". (v) Lacerated wound on right side of temporal region 1" x 1/2" x bone deep. (vi) Lacerated wound with blackening of margin and comminuted fracture of mandible right chin, Oval in shape 1" x 1/2" x bone deep (wound of entry). There was no wound of exit as the bullet might have fallen after causing injuries. (vii) Lacerated wound with blackening of margin 1" x 1/2" (oval) with tattooing (4"-6" in area) on upper part of abdomen about left of middle line (wound of entry) with inverted margin. There was no wound of exit as the bullet might have fallen after causing injuries. (vii) Lacerated wound with blackening of margin 1" x 1/2" (oval) with tattooing (4"-6" in area) on upper part of abdomen about left of middle line (wound of entry) with inverted margin. (viii) Lacerated wound about 1 1/2" in diametre inverted margin on back in the middle line & 2nd lumber spine (wound of exit). 6. On dissection of head and neck the brain was found pale. There was fracture of right temporal bone and there was compound and comminuted fracture of mandible of right side and on dissection of chest both the lungs were found pale and heart was found empty and on dissection of abdomen it was found full of blood, linear spine and kidneys were pale and there were wounds at three places on small intestine and large intestine was intact with undigested food and stomach was empty. Second lumbar bone vertebrae was fractured and lacerated wound of descending iota was present. Urinary bladder was empty. According to the doctor, time elapsed since death was within 36 hours and death was due to shock and haemorrhage caused by the aforesaid injuries mainly because of injury no. (vii). Injury nos. (vi) and (vii) were caused by fire arm and other injuries were caused by hard and blunt substance which may be brickbats or stone pieces. About injury no. (viii) also he has said that it was caused by fire arm. Although this witness has not given the time of holding the post mortem examination but then in the post mortem examination report (Ext.4) it is mentioned as 11.30 A.M. So the time of death of deceased as opined by him corresponds to the time of death as given by the prosecution. The evidence of this witness proves that the deceased died of injuries caused to him by fire arm and hard and blunt substance and death was homicidal. 7. Shaligram Raj (PW 8), the informant, in his evidence has stated that on 13.9.92 he, his elder brother deceased Bishnu Prasad Rai and his nephew Vijay Kumar Rai (PW 7) on their bicycles were returning from Village Bhurkunda where they had gone one day earlier. They had started from Bhurkunda at 7.15 A.M. and at about 9 A.M. they reached near the forest in Jagatpur Mouza. The road passes through that forest. They had started from Bhurkunda at 7.15 A.M. and at about 9 A.M. they reached near the forest in Jagatpur Mouza. The road passes through that forest. They were still 100-125 yards away from the forest when appellants namely, Awadhesh Rai, Rohit Rai, Govind Rai, Akhileshwar Rai, Kailu Rai, Bhuneshwar Rai, Abhimanyu Rai and Sachit Rai came out running towards them from the forest and remaining four appellants namely, Mazister Rai, Byas Rai, Mritunjay Rai and Naresh Rai came out from the back of a Mahua tree standing towards south and they also ran towards the informant and his men. Appellants Awadhesh Rai and Rohit Rai were armed with pistols. Appellant Abhimanyu Rai was carrying a bag and remaining appellants were armed with lathis. He could not see what was kept in the bag which was with appellant Abhimanyu Rai. On seeing the appellants coming towards him he asked the deceased to run saying that enemies had reached. He and Vijay Kumar Rai (PW 7) turned their bicycles to flee away. The deceased also threw his bicycle towards south east corner of the field and started running. After coming to some distance the informant and Vijay Kumar Rai (PW 7) turned back and saw that deceased after leaving his bicycle was running. The appellants were throwing brickbats on him. He and Vijay Kumar Rai (PW 7) left their bicycles and they after raising hulla turned towards the deceased for his rescue. In the meantime appellants Kailu Rai, Mazister Rai, Mritunjay Rai and Sachit Rai stopped the deceased from front and started pelting brickbats on him. When the deceased after turning tried to run towards north the remaining appellants coming from north side stopped him and thereafter he was surrounded from all sides by all the appellants. Appellants Akhileshwar Rai ordered to kill him and thereafter appellants Awadhesh Rai fired one shot at the deceased and thereafter appellant Rohit Rai also fired at the deceased. Appellant Awadhesh Rai fired one more shot at the deceased and deceased fell down and thereafter the appellants fled away in the forest. He and his nephew Vijay Kumar Rai (PW 7) went near the deceased and found him lying dead in the pool of blood. He and his nephew started weeping. Appellant Awadhesh Rai fired one more shot at the deceased and deceased fell down and thereafter the appellants fled away in the forest. He and his nephew Vijay Kumar Rai (PW 7) went near the deceased and found him lying dead in the pool of blood. He and his nephew started weeping. After sometime Ganesh Chaudhary (PW 4) and Kodo Mahra (PW 6) came there and when they inquired he told them about the occurrence, disclosing the names of all the appellants. Thereafter some other persons also came there and informant narrated the incident to them also and thereafter he asked PW 4 to inform his nephew Babiu @ Ramesh Kumar Rai at his village Basbariya. At about 2 P.M. police reached the place of occurrence and recorded his fardbeyan (Ext.2) which was signed by him as well as by PW 1 and PW 3. The police prepared inquest report and seized a pair of shoes and a bicycle in presence of witnesses and also seized a bag containing some twine, a small bottle, small pieces of iron, powder wrapped with a tinsel from the place near the Mahua tree and prepared seizure list (Exts. 3 and 3/1). The police recorded his further statements and statements of Vijay Kumar Rai (PW 7) and sent the dead body to Sadar Hospital, Deoghar. The police seized blood stained soil from the place of occurrence. About the motive of the occurrence he has stated that there was land dispute between the appellants from before and earlier also the appellants had made murderous attack on his brother Murlidhar Rai. 8. Vijay Kumar Rai (PW 7), the son of the deceased, has stated that on 12.9.92 he, his deceased father and the informant had separately gone to his Sasural at village Bhurkunda because his minor son aged about one year was ill there and they stayed for the night on that day and on the next day in the morning at about 7,15 A.M. they all on their bicycles started for their village. At about 9 A.M. when they reached Jagatpur field, he saw the appellants Awadheeh Rai, Govind Prasad Rai, Akhileshwar Rai, Rohit Rai, Kallu Rat, Shuneshwar Rai, Abhimanyu Rai and Sachit Rai coming out from the forest and appellants Mazister Rai, Byas Rai, Mritunjay Rai and Naresh Rai running towards them after coming from the back side of the Mahua tree which was about 100 yards from them Appellants Awadhesh Rai and Rohit Rai were armed with pistols. Appellant Abhimanyu Rai was carrying a bag and remaining appeflants were armed with lathis. On seeing the appellants, informant raised alarm asking to run away saying that enemies had reached and he then turned back and fled. The deceased also fled towards south east corner whereas he and informant fled towards east and after going to some distance when he turned back he found that deceased was running on foot and all the appellants were chasing him. He then left his bicycle and ran towards his fattier. Before that he and informant both were trying to flee away on their bicycles. Appellants Mazister Rai, Sachit, Kallu and Mritunjay surrounded the deceased from front and started pelting stones on him and thereafter remaining appellants also surrounded him and appellant Akhileshwar Rai ordered to kill the deceased on which appellant Awadhesh Rai fired from his pistol on the deceased and thereafter appellant Rohit Rai also fired from his pistol and after it appellant Awadhesh Rai again fired second shot The deceased fell down on the ground and thereafter appellants fled away. When he and informant went near his father he found mat his father has died and his body was bathed with blood. Thereafter PW 4 and PW 6 reached mere and he and informant told them about the occurrence disclosing the names of the appellants. One hour thereafter other persons came there to whom also he and informant told about the occurrence as well as the names of appellants. He has admitted that appellants are his agnates. According to him, he raised hulla when appellants were chasing his father and immediately thereafter PW 4 and PW 6 reached there. 9. The prosecution case is that Ganesh Choudhary (PW 4) and Kodo Mahra (PW 6) were the witnesses who first of all reached the place of occurrence after hearing hulla raised by the informant and PW 7. According to him, he raised hulla when appellants were chasing his father and immediately thereafter PW 4 and PW 6 reached there. 9. The prosecution case is that Ganesh Choudhary (PW 4) and Kodo Mahra (PW 6) were the witnesses who first of all reached the place of occurrence after hearing hulla raised by the informant and PW 7. In the Fardbeyan the informant has not stated that these witnesses had reached the place of occurrence. The I.O. (PW 10) in his evidence has stated that not only in the Fardbeyan but in his further statements before him also the informant had not stated the names of PW 4 and PW 6. PW 4 and PW 6, both, have stated that at the time of occurrence they were going to purchase a cow and after hearing the sound of firing they both stopped for about two minutes and saw 10-12 persons running towards west and thereafter they went to the place of occurrence where they found the dead body of the deceased. Informant and PW 7 were weeping and on being asked the informant told them about the occurrence and also disclosed the names of the appellants. PW 4 has said that he and PW 6 both were going to village Khairwa for purchasing a cow and they both were on a bicycle. None of them has given the identity of those 10-12 persons who according to them, were found running towards west. PW 4 has admitted that Murlidhar, the brother of informant, is the son-in-law of his brother Kashi. He has further admitted that all the 10-12 appellants whose names were disclosed by the informant were known to him from before and they belong to his own caste. In spite of this admission he does not say that the 10-12 persons who were seen by him running away towards west were the appellants. Similarly PW 6 has also admitted that the appellants were known to him from before but at the time of occurrence he did not identify any appellant. PW 4 in his cross examination has stated that after hearing hulla when he proceeded towards that place and when he covered a distance of about 200 yards, he saw 12 persons running from east to west whereas he was going from west and he and those 12 persons crossed each other in the way. PW 4 in his cross examination has stated that after hearing hulla when he proceeded towards that place and when he covered a distance of about 200 yards, he saw 12 persons running from east to west whereas he was going from west and he and those 12 persons crossed each other in the way. This admission of PW 4 clearly suggests that he and PW 6 had full opportunity to see from a close view the persons who were running but still neither PW 4 nor PW 6 could identify any one of them. Had those 12 persons been the appellants, PW 4. and PW 6 would have identified atleast some of them, if not all, because admittedly the appellants were known to them from before but it is not like so. PW 4 and PW 6 are said to have reached the place of occurrence after hearing hulla and they saw 12 persons running away but they do not say that those 12 persons were the appellants. This creates serious doubt about the case of prosecution that appellants committed the offence. 10. The case of the prosecution is that informant and PW 7 with deceased were returning from Bhurkunda on their respective bicycles and on the way the occurrence took place near a forest. About the reason for their going to Bhurkunda one day prior to the occurrence the case of the prosecution is that minor son of PW 7 was lying ill at Bhurkunda and after receiving information of his illness they had gone there on the previous day of occurrence and stayed there at the night. PW 7 has said that he, the informant and deceased had separately gone to Bhurkunda on 12.9.92 but in his cross examination he has said that they all three together had gone to 0hurkunda pn their respective bicycles. He has further stated that they had started for Bhurkunda on 12.9.92 at 2 P.M. The informant in his evidence has stated that he receded the news of illness of minor son of PW 7 on 12.9.92 (the date is mentioned in his deposition as 12.9.93) at 2 P.M. and from there he and others proceeded for Bhurkunda and before proceeding for Bhurkunda he did not go to his house. PW 7 in his evidence has stated that he received information of illness of his son one day prior and somebody had informed his father also about this fact but he does not know who had informed his father about ft. He has also stated that they did fot carry any luggage with them and before proceeding to Bhurkunda they had not disclosed their programme to anybody and while going to Bhurkunda they did not meet any known person in the way Informant and PW 7 both have stated thai at the time of occurrence they alongwiti the deceased were returning to their home on their bicycles. Their further evidence is that when they found appellants chasing the deceased they left their bicycles and went the place where the deceased had fallen down. The I.O. (PW 10) in his evidence has clearly stated that neither he saw the bicycle of informant or of PW 7 nor anybody had shown their bicycles to him. He has further stated that he had no concern with the bicycles of informant and PW 7. The statement of the I.O. that he had no concern with the bicycles of informant and PW 7 appears to have been made in a quite irresponsible manner and is against the principle of proper investigation. It is the case of informant and PW 7 that at the time of occurrence they both were on their bicycles and after leaving their bicycles they went near the deceased whereas the case of the defence is that these witnesses were not with the deceased at the tinie of occurrence. In this view of the matter, non-getting of their bicycles by the I.O. at the place of occurrence becomes a circumstance against the prosecution. This circumstance becomes more strong considering the evidence of informant that he and PW 7 left their bicycles at the place of occurrence and thereafter he did not see those bicycles on that day at the place of occurrence and he found those bicycles in his house after 4-5 days, but he did not see anybody bringing, those bicycles to his house. Again he has said that later on he came to know the name of the person who brought the bicycles to his house but in spite of it he has not disclosed the name of that person. 11. Again he has said that later on he came to know the name of the person who brought the bicycles to his house but in spite of it he has not disclosed the name of that person. 11. The case of the appellants is that informant and PW 7 who are said to be only eye witnesses to the occurrence, in fact, had not seen the occurrence and for this reason in the fardbeyan which was earlier recorded the names of appellants had not figured but after due deliberations the earlier fardbeyan was changed at the Police Station in the night of the day of occurrence and in this subsequent fardbeyan the names of the appellants were added. Tarni Prasad Rai (PW 1) is a witness who put his signature on the fardbeyan. He has said that the police recorded the fardbeyan of informant and thereafter he as well as Rama Nand Singh (PW 3) put their signatures on it. In cross examination he has clearly stated that after occurrence he had gone to Police Station where the fardbeyan was recorded on which the informant, he and PW 3 put their signatures. After going through the fardbeyan (Ext.1) and admitting his signature he has said that this was the fardbeyan which was recorded at the police station. He has categorically stated that he put his signature on the fardbeyan at 12 O, clock in the night at police station. This is against the case of the prosecution that fardbeyan was recorded at 2 P.M. on the day of occurrence at the place of occurrence itself and thereafter when PW 10 returned to Police Station in the night the formal FIR was drawn at 8.15 P.M. The I.O. (PW 10) in his evidence has stated that he after visiting the place of occurrence returned to Police Station at about 8.15 P.M. This statement and the evidence of PW 1 that the fardbeyan was recorded at Police Station combined together also suggest that fardbeyan must have been recorded on 13.9.92 after 8.15 P.M. 12. It is true that Rama Nand Singh (PW 3) who is another witness on the fardbeyan has stated that at the place of occurrence the police came and saw the dead body and recorded the fardbeyan of informant on which he put his signatures (Ext. 1/4). It is true that Rama Nand Singh (PW 3) who is another witness on the fardbeyan has stated that at the place of occurrence the police came and saw the dead body and recorded the fardbeyan of informant on which he put his signatures (Ext. 1/4). Although he does not say that the fardbeyan was recorded at the place of occurrence itself but by taking his statement made in cross examination that his statements were not recorded at police station if it be assumed that he means to say so the evidence of PW 1 that this witness (PW 3) also had put his signatures on the fardbeyan at the police station, his (PW 3) evidence that fardbeyan was recorded at the place of occurrence becomes quite doubtful. Learned counsel for the State has submitted that except the evidence of PW 1 that fardbeyan was recorded at the police station, there is evidence of informant, I.O., and PW 3 that the fardbeyan was recorded at the place of occurrence and in this circumstance, if the evidence of PW 1 is discarded on the point of place of recording the fardbeyan the evidence of informant, I.O. and PW 3 supports the case of the prosecution that fardbeyan was recorded at the place of occurrence. This argument is misconceived. The appellants have come up with a case that the fardbeyan which was recorded at the place of occurrenoe was changed later on at the Police Station. They are accusing the informant and the I.O. who connived with the informant. In this view of the matter, it has to be seen whether the evidence of informant and I.O. on the point of place of recording the fardbeyan (Ext.2) is supported by other evidence or not. Now there remains two witnesses on this point, who are PW 1 and PW 3. PW 3 has not in express words stated that fardbeyan was recorded at the place of occurrence itself. PW 1 after proving his signature and going through the fardbeyan has categorically stated that this fardbeyan (Ext.2) was recorded at the police station where he had gone after the occurrence. PW 3 has not in express words stated that fardbeyan was recorded at the place of occurrence itself. PW 1 after proving his signature and going through the fardbeyan has categorically stated that this fardbeyan (Ext.2) was recorded at the police station where he had gone after the occurrence. So the case of the appellants that original fardbeyan was changed and the present fardbeyan which has been made basis of this case was recorded at the police station finds support from the evidence of PW 1 and it makes the case of prosecution quite doubtful that the fardbeyan was recorded at the place of occurrence. 13. The appellants in order to prove their case that their names have subsequently been included in the fardbeyan, examined Ishwar Goshwami (DW 1) and Narayan Mahto (DW 2). DW 1 has stated that on the day of occurrence at about 8-8.30 A.M. one Makhan Mahra informed PW 7, the son of deceased that his father had been murdered in Mahbadia forest. DW 2 has stated that on the day of occurrence at about 8.30 A.M. he along with informant (PW 8) were attending a Panchayati in village Roshan where Vijay Kumar Rai (PW 7) came there on a bicycle and informed him that deceased had been killed by someone in a forest and thereafter informant (PW 8) and PW 7 left the place. By evidence of these witnesses the appellants have tried to bring on record the fact that PW 7 and PW 8 who have been projected by the prosecution as only eye witnesses to the occurrence had not seen the commission of murder of deceased and they had simply received the information of the murder. The court below has disbelieved their evidence on the ground that DW 1 has admitted that the deceased had filed a case against his uncle and DW 2 has tried to conceal the fact that deceased along with him was a candidate for the post of Mukhiya in the year 1978 which has been admitted by Nirmal Kumar Rai (DW 4). The court below at one hand has discarded the evidence of DW 1 on the ground of enmity but on the other hand it has accepted the evidence of informant and PW 7 who are also on inimical terms with the appellants. The court below at one hand has discarded the evidence of DW 1 on the ground of enmity but on the other hand it has accepted the evidence of informant and PW 7 who are also on inimical terms with the appellants. If no inference is drawn from the evidence of DW 1 and DW 2 that informant and PW 7 were not present at the place of occurrence where the deceased was murdered, even then we find that the evidence of informant and PW 7 who are the only witnesses to the occurrence that they saw the appellants assaulting the deceased otherwise also does not appear to be convincing. They both have stated that appellants Awadhesh Rai and Rohit Rai were armed with pistols and appellant Abhimanyu Rai was carrying a bag and remaining appellants were armed with lathis. Appellants Kallu Rai, Mazister Rai, Mritunjay Rai and Sachit who were armed, with lathis threw brickbats on the deceased after surrounding him from front side. If these appellants were armed with lathis and all the appellants had common object to kill the deceased, they could have very well assaulted the deceased with lathis but in sptte of (seeping lathis with them they, as stated by informant and PW 7, pelted stones and brickbats at the deceased. This is also a very improbable circumstance. These witnesses have further stated that all the appellants surrounded the deceased and thereafter appellants Awadhesh Rai and Rohit Rai fired at the deceased which they saw from a distance of 70-80 yards. This is also not probable because if a man is surrounded from all sides by 12 persons, the persons standing at a distance of about 70-80 yards will not be in a position to see who amongst those 12 persons was causing particular injury to the deceased. Informant and PW 7 have not stated that what the bag which appellant Abhimanyu Rai was carrying, contained but the I.O. (PW 10) in his evidence has said that from the place of occurrence he seized along with other articles a bag containing a bundle of twine, small iron pieces wrapped in a piece of cloth and orange coloured powder wrapped in a tinsel. Sanjay Kumar Rai (PW 2) has also stated the same fact. From this seizure perhaps the prosecution wants to establish that the articles found in the bag were meant for preparing some explosives. Sanjay Kumar Rai (PW 2) has also stated the same fact. From this seizure perhaps the prosecution wants to establish that the articles found in the bag were meant for preparing some explosives. It does not come to reason why appellant Abhimanyu Rai, would go with other appellants with common object to kill the deceased carrying the articles for manufacturing bomb or explosives in a bag instead of straightaway taking a bomb or explosives. The evidence of PW 7 that before going to Bhurkunda one day prior to the occurrence, his programme and that of deceased and informant was not disclosed to anybody and while going there they did not meet any known person in the way, is another circumstance which makes the case of prosecution improbable that how the appellants could know that at a particular time the deceased along with informant and PW 7 would return from Bhurkunda and pass through the place of occurrence where the appellants, as alleged, were hiding. Notwithstanding these improbabilities, the evidence of informant and P.W.7 who are the only eye witnesses to the occurrence does not inspire confidence to believe them. P.W. 7 has first said that informant went to police station at about 7-8 P.M. on the day of occurrence but in cross examination he has said that he and informant never went to police station. The informant in his evidence has first tried to conceal the fact that he had gone to police station but subsequently has said that after filling diesel he went to police station but he has not made clear in which vehicle he got diesel filled. He has also stated that the police told him that he had to stay at the police station and the dead body of the deceased would be sent on the next day in the hospital but he did not stay in the night at the police station. This is against the evidence of PW 1 who has stated that he along with informant, Bhago Rai and others had reached the police station at 7 P.M. and they all stayed there in the night. The informant in his evidence has stated that the police reached the place of occurrence at 2 P.M. and he had simply told PW 4 to inform his family members about the occurrence and he did not bother to give information to police. The informant in his evidence has stated that the police reached the place of occurrence at 2 P.M. and he had simply told PW 4 to inform his family members about the occurrence and he did not bother to give information to police. About himself he has stated that out of fear he could not go to police station to lodge the information. This is against the evidence of PW 4 who has said that Chowkidar went to police station for lodging the information and when the police came to the place of occurrence the Chowkidar was with the police. The informant in his evidence has said that along with Darogajee (Officer-in-charge) there were 2-3 other police officers with him when he had come to the place of occurrence but in spite of it the fardbeyan said to have been recorded at 2 P.M. was not sent to police station for lodging formal F.I.R.and it was kept with the I.O. (P.W.10) who in his evidence has deposed that from the place of occurrence he went to the village of the informant and from there he came to police station where he reached at 18.15 hrs. and then drew formal F.I.R. This evidence and the evidence of the informant that he had also gone to the police station in the night of the date of occurrence coupled with the evidence of P.W.1 that fardbeyan itself was recorded at the police station in the night on which he, informant and P.W.3 put their signature, creates a strong circumstance suggesting that names of appellants for the first time figured on the night of the day of occurrence. If the fardbeyan and re-statement of the informant as stated by the Investigating Officer were recorded at the place of occurrence itself then there was no occasion for the informant to go to the police station on the same day at night. 14. The court below has observed that "ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person". We are in total agreement with this view because it suggests a circumstance based on natural human conduct but such circumstance is not available in a case where a close relation of a deceased who has been murdered does not know the real culprit. We are in total agreement with this view because it suggests a circumstance based on natural human conduct but such circumstance is not available in a case where a close relation of a deceased who has been murdered does not know the real culprit. In that situation the possibility of his utilising the unpleasant happenning against his enemies cannot be ruled out. 15. Considering the entire evidence on record, we find that although the prosecution has been able to prove that the deceased died of homicidal death and his murder took place at the place of occurrence which is near a forest but then it has not been able to prove beyond all reasonable doubts that the appellants were the persons who took part in the commission of murder of the deceased. 16. In the result, both the appeals are allowed and the judgment and order of the court below is hereby set aside. Appellant Awadhesh Rai of Cr. Appeal No. 298/95 who is in jail custody is ordered to be released forthwith, if not required to be detained in any other case and the remaining appellants who are on bail are discharged from the liabilities of their bail bonds. B.P.Sharma, J. 17 I agree.