Judgment N.Roy, J. 1. All these appeals arise out of the common judgment and order of conviction, therefore, they have been heard together and are being disposed of by this common judgment. 2. It appears that during the pendency of these appeals, appellants Ram Narayam mahto, Shiv Das mahto and Khakhnoo paswan of Cr,. Appeal No. 199 of 1987 died and an affidavit was filed in this regard and this Court vide order dated 17-8-2000 passed an order holding that this appeal abated as against these appellants under Sec. 394 of the C ode of Criminal Procedure. 3. Appellants Binod Mahto and Rajnandan Mahto of Cr. Appeal No. 264 of 1987 have been convicted for an offence under Sec. 302 of the IPC and sentenced to undergo rigorous imprisonment for life. They have further been convicted under Sec. 148 of the IPC and sentenced to undergo rigorous imprisonment for two years. The sentences, however, were directed to run concurrently. Appellants of Cr. Appeal No. 199 of 1987 have been convicted under Sec. 302/149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. Appellants Chhotan Mahto and Rajdhari Mahto have also been convicted under Sec. 148 of the IPC and sentenced to undergo rigorous imprisonment for two years. Rest of the appellants of this appeal have also been convicted under Secs. 147 and 143 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for two years and sixmonths respectively. However, sentences were directed to run concurrently. Appellants of Cr. Appeal No. 207 of 1987 namely Nirmal Kumar has been convicted under Sections 302/149 of the IPC and sentenced to undergo rigorous imprisonment for life. He bas also been convicted under Secs. 326 and 148 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years and two years respectively. Appellant Dinesh Mahto of Cr. Appeal No. 253 of 1987 has been convicted under Sec. 302/149 of the IPC and sentenced to undergo rigorous imprisonment for life. He bas also been convicted under Secs. 307 and 148 of the IPC and sentenced to undergo rigorous imprisonment for ten years and two years respectively. However, sentences have been directed to run concurrently. 4. The prosecution case, as disclosed in the fardbeyan (Exht. He bas also been convicted under Secs. 307 and 148 of the IPC and sentenced to undergo rigorous imprisonment for ten years and two years respectively. However, sentences have been directed to run concurrently. 4. The prosecution case, as disclosed in the fardbeyan (Exht. 1) lodged by PW 1 Brahedeo Mahto, briefly stated, is that on 2-9-1985 about 3 p.m. while he was sitting near the Goshala of Ram Chandra Mahto along with PW 4 Shashi Shekhar Singh, he heard a sound of firing from south of the village and in the meantime, Deo Bihari Mahto, the deceased who happened to be his maternal brother came there running and he was being chased by accused Dinesh Mahto, Rajnandan Mahto, Vinod Mahto and Nimml Mahto, all armed with pistols and no sooner they reached near his darwaja, they caught hold of Deo Bihari Mahto, the deceased and started firing from their respective pistols. Dinesh Mahto fired on the Kanpatti of the deceased whereas Binod Mahto fired on the back of the deceased and Nirmal Mahto fired upon left hand of the deceased whereas the fire made by Deo Bihari Mahto did not hit him. Then he saw the deceased lying down near his darwaja and he immediately caught hold of Nirmal Mahto and thereafter other accused-persons namely Jyotish Mahto, Ram Narayan Mahto, Chhotan Mahto, Sunil Mahto, Khakhnoo Paswan, Ram Pravesh Paswan, Shivdas Paswan, Rajdhari Mahto, Dhooplal Mahto reached there instigating other accused-persons. However, there was some scuffle between him and Nirmal Mahto and ultimately the accused-persons fled away seeing Deo Bihari Mah to lying injured. The genesis of the occurrence, according to the prosecution case, appears to be old enmity of the deceased and the accused persons. The informant, in the fardbeyan, has alleged that all the accused-persons held meeting at the darwaja of Dhooplal Mahto and finding the deceased working in the field alone, they attacked him and ultimately killed him. 5. On the basis of the fardbeyan (Exht. 1) a formal First Information Report was drawn up and Bikram P.S. Case No. 174 of 1985 dated 2-9-1985 was registered against the named accused appellants under Secs. 147,148,149 and 302 of the Indian Penal Code and Sec. 27 of the Arms Act. 6. 5. On the basis of the fardbeyan (Exht. 1) a formal First Information Report was drawn up and Bikram P.S. Case No. 174 of 1985 dated 2-9-1985 was registered against the named accused appellants under Secs. 147,148,149 and 302 of the Indian Penal Code and Sec. 27 of the Arms Act. 6. After due investigation, the police submitted charge-sheet against the appellants and after taking cognizance of the offence case was committed to the Court of Sessions where these appellants were tried and having been found guilty, they were sentenced as indicated above. 7. The defence of the accused appellants was total denial of the occurrence and they pleaded innocence and false implication at the hands of the informant and Shashi Shekhar Singh. PW4. 8. The prosecution, in all, examined 12 witnesses in support of its case out of them PW 1 Brahmdeo Mahto is the informant and eye-witness of the occurrence. PW 2 Hari Sharan Mahto is a witness who had seen the accused persons running away. PW 3 Shyama Sinha is the daughter of the deceased Deo Bihari Mahto who had seen the accused persons retreating from the place of occurrence. PW 4 Shashi Shekhar Singh is another eye-witness of the occurrence. PW 5 Surajdeo Singh is a witness who had seen the accused-persons running from the place of occurrence. PW 6 Raj Kumari Devi has been tendered. PW 7 Sheikh Noor Mohammad is Sub-Inspector of Police who submitted charge-sheet in this case. PW 8 Dr. Anil Kumar Sinha is the doctor who examined the injuries on the person of Brahmdeo Mahto. PW 1. PW 9 Kapildeo Yadav is a formal witness. PW 10 Shankar Dayal Pandey is the Investigating Officer of the case. PW 11 Dr. Md. Afzal is the doctor who held autopsy over the deadbody of the deceased Deo Bihari Mahto. PW 12 Sukhdeo Prasad Singh is a formal witness. 9. The defence has also examined one witness namely DW 1. Sunil who has proved Exht. A, the fardbeyan lodged against Brahmdeo Mahto and others. 10. Learned counsel for the appellants-submitted that this is a case of no evidence and no occurrence as alleged, had taken place in the manner described by the prosecution and due to previous enmity the appellants have been named as the assailants of the deceased. Sunil who has proved Exht. A, the fardbeyan lodged against Brahmdeo Mahto and others. 10. Learned counsel for the appellants-submitted that this is a case of no evidence and no occurrence as alleged, had taken place in the manner described by the prosecution and due to previous enmity the appellants have been named as the assailants of the deceased. It is further submitted that the evidence of the eye- witnesses namely PWs 1 and 4 are contradictory to each other and it would appear from their evidence that none had seen the occurrence as deposed by them. It is further submitted that PW 3 Shyama Sinha, daughter of the deceased though had reached the place of occurrence, has not lodged the First Information Report rather it was lodged by Brahmdeo Mahto. PW 1. 11. PW 1 Brahmdeo Mahto, in his evidence, has supported the prosecution version as disclosed in the fardbeyan (Exht. 1). In his evidence he has stated that the deceased was his maternal brother and while he was sitting at the Goshala of Ramchandra Mahto along with PW 4 Shashi Shekhar Singh, he heard the sound of firing and immediately he saw the appellants Binod Mahto. Dinesh Mahto. Nirmal Mahto and Rajnandan Mahto chasing the deceased and near his darwaja the deceased was shot dead by them and thereafter other appellants came there variously armed with lethal weapons. He has further stated that seeing the deceased lying injured he caught hold of Nirmal Mahto and there was scuffle as a result of which he sustained injuries on his knee and the accused-persons thereafter retreated. In his evidence he has further stated that PW 5 Surajdeo Mahto, Hari Sharan Mahto, PW 2 and PW 3 Shyama Sihha, daughter of the deceased also reached there. In paragraph 12 of his evidence he has stated that at the time of firing he was coming towards the place of occurrence with a bundle of grass on his head. In paragraph 22 of his evidence, he has admitted that the accused-persons had not assaulted him. In paragraph 24 he has stated that he had not seen the accused-persons gossiping at the darwaja of Dhooplal rather he heard this from one Suresh Singh (not examined). In paragraph 27 of his deposition he has admitted that Suraj Kumar, brother of accused Nirmal Mahto had lodged a case against him (Exht. In paragraph 24 he has stated that he had not seen the accused-persons gossiping at the darwaja of Dhooplal rather he heard this from one Suresh Singh (not examined). In paragraph 27 of his deposition he has admitted that Suraj Kumar, brother of accused Nirmal Mahto had lodged a case against him (Exht. A) in the year 1982 for kidnapping a girl and the case was going on in between the parties. 12. From the evidence of PW 1 it is evident that at the time of occurrence he was sitting at the Gashala of Ramchandra Mahto but at the same time he has also stated in his evidence that at the time he heard the sound of firing, he was carrying a bundle of grass. It is also evident from his evidence that he had caught hold one of the accused namely Nirmal Mahto and he had scuffle with him and for the reasons best known to him he was spared by the accused-persons to depose against them. This witness has also stated in his evidence about the enmity with the accused-persons. 13. PW 2 Hari Sharan Mahto is a witness who had seen the accused persons running away from the place of occurrence. He has further stated in his evidence that no sooner he reached the place of occurrence, he found the deceased Deo Bihari Mahto lying dead at the darwaja of Brahmdeo Mahto. PW 1 and he knew from PW 1 that accused Dinesh, Binod, Rajnandan and Nirmal shot fire on the deceased and fled away. In paragraph 3 of his evidence he has stated that the Investigating Officer had seized one live cartridge of rifle and empty cartridges along with a charger. This witness has stated in paragraph 7 of his evidence that Shashi Shekhar Singh, PW 4 is his son. 14. PW 3. Shyama Sinha is the daughter of the deceased and she reached the place of occurrence afterwards and had seen the accused persons retreating. In her evidence she has stated that she seeing her father dead went to Dulhin Bazar Police Station and informed the police about the occurrence and thereafter the police came there. In her evidence, she has also shown the presence of PWs 1 and 4. In her evidence she has stated that she seeing her father dead went to Dulhin Bazar Police Station and informed the police about the occurrence and thereafter the police came there. In her evidence, she has also shown the presence of PWs 1 and 4. From her evidence it appears that she is matriculate but has not said in her evidence that she lodged a written report before the police. 15. PW 4 Shashi Shekhar Singh is another eye-witness of the occurrence. He has deposed on the line of the informant PW 1 and has supported the prosecution version of the case. In his evidence he has stated that at the relevant time he was sitting at the Goshala of Ram Chandra Mahto along with Brahmdeo Mahto. PW 1 and there he had seen the appellants Binod Mahto. Dinesh Mahto Rajnandan Mahto and Nirmal Mahto opening fire upon the deceased and other accused-persons also came there armed with lethal weapons. In paragraph 13 of his evidence he has stated that when he came to the Gashala of Ram Chandra Mahto he saw Brahmdeo Mahto. PW 1 sitting there from before; In paragraph 18 of his evidence he has stated that he had not said before the police that the appellants had caught hold of the deceased and then fired rather he stated that the four appellants surrounded the deceased and opened fire upon him. From the evidence of PW 1 Brahmdeo Mahto it would appear that at the time of firing he was coming with a bundle of grass on his head. These two eye-witnesses, namely, PWs 1 and 4 contradicts each other and they are consistent in saying that both of them were sitting together and had seen the occurrence, if PW 1 was carrying a bundle of grass at the time of firing the evidence of PW 4 that PW 1 was sitting at Goshala from before, makes the prosecution case doubtful. 16. PW 5 Surajdeo Singh is not an eye-witness of the occurrence rather he had seen the accusedpersons fleeing away with fire arms and other weapons. PW 6 Rajkumari Devi is a tendered witness. PW 7 Sk. Noor Mohammad is a formal witness who has filed the chargesheet. PW 8 Dr. Anil Kumar Sinha is the doctor who has proved the injuries on the person of PW 1 Brahmdeo Mahto. PW 6 Rajkumari Devi is a tendered witness. PW 7 Sk. Noor Mohammad is a formal witness who has filed the chargesheet. PW 8 Dr. Anil Kumar Sinha is the doctor who has proved the injuries on the person of PW 1 Brahmdeo Mahto. PW 9 Kapildeo Mahto is also a formal witness who has proved Exht. 6. PW 12 Sukhdeo Prasad Singh is also a formal witness who has proved the signature of deceased Deo Bihari (Exht. 11). PW 11 Dr. Md. Afzal had held autopsy over the dead-body and had found ante mortem fire arm injuries on the person of the deceased. 17. PW 10 Shankar Dayal Pandey is the Investigating Officer of the case. In his evidence he has stated that on 2-9-1985 he heard some rumour at Dulhin Bazar that firing had taken place in village Silhori. He rushed towards the village and, there he found the dead-body of deceased Deo Bihari Mahto lying at his darwaja and he also recorded a fardbeyan of PW 1 Brahmdeo Mahto at 5 p.m. In paragraph 19 of his evidence he has stated that on 2-9-1985 no police officer was there in Dulhin Bazar Police Station in between 3 to 10 p.m. and only literate constable Arjun Singh was Incharge of Station diary. He has further stated that on 2-9-1985 when he returned back to the police station, he saw a Sanha entry No. 25 recorded at 4.30 p.m, to the effect that firing is going on in village Silhori from his evidence it appears that he had found sufficient blood at the place of occurrence where the dead-body was lying and had also seen some scattered Janera plants which was allegedly carried by the deceased. He had also seen some Janera cut from the field of deceased Deo Bihari Mahto. 18. PW 3 Shyama Sinha, in her evidence has stated that after the occurrence she rushed to Dulhin Bazar police station and informed the police about the occurrence. Evidence of PW 3, however, is not corroborated by the evidence of the Investigating Officer PW 10 rather it appears that a Sanha entry was recorded at 4.30 p.m. to the effect that firing was going on in village Silhori. 19. Evidence of PW 3, however, is not corroborated by the evidence of the Investigating Officer PW 10 rather it appears that a Sanha entry was recorded at 4.30 p.m. to the effect that firing was going on in village Silhori. 19. I have scrutinised the evidence of the prosecution witnesses and while testing the same with objectivity, I find that the witnesses are not consistent and the eye-witnesses PWs 1 to 4 and also PW 3 do not appear to be reliable witnesses inasmuch as that PW 1 Brahmdeo Mahto at one place states that he was sitting with PW 4 at the Goshala of Ram Chandra Mahto whereas he also states that at the time of firing he was carrying bundle of grass. The evidence of PW 4 shows that PW 1 was sitting at the Goshala from before. The evidence of PWs 1 and 4 thus contradicts each other. From the evidence of PW 1 it further appears that he had seen four of the accused-persons firing upon the deceased from close range and he had also caught one of the accused Nirmal Mahto and he had scuffle with him as a result of which he sustained injuries on his knee. It is quite surprising that when he had scuffle with Nirmal Mahto and as per the evidence when there was a case registered against him (Exht. A) for kidnapping a girl of the defence side why he was spared by the appellants and in normal course when he protested and had caught hold of one of the accused-persons, he could not have been spared. It is the evidence of PW 1 that in course of scuffle other accused persons did not assault him rather they retreated from the place of occurrence sparing him to depose against them. It is evident from the evidence of these prosecution witnesses that Deo Bihari Mahto had also lodged a case, against some of the accused-persons prior to this incident. Likewise, PW 3 Shyama Sinha, the daughter of the deceased, also does not appear to be a reliable witness inasmuch as that her evidence stands contradicted by the Investigating Officer PW 10 to the extent that no information was ever given by her to the police. She specifically states in her evidence that she rushed to Dulhin Bazar Police Station and informed the police about the occurrence. She specifically states in her evidence that she rushed to Dulhin Bazar Police Station and informed the police about the occurrence. It has come in the evidence of Investigating Officer that Sanha entry No. 25 was made at the police station only to the effect that firing was going on in village Silhori. Had it been a case that PW 3 had informed the police when she had gone to the police station after the death of her father, Sanha entry could not have been recorded about the death of the deceased. These circumstances thus show that the witnesses namely PWs 1, 3 and 4 are not reliable witnesses and their testimony makes the prosecution case doubtful. 20. The factum of death of the deceased has been proved by the evidence but the prosecution has failed to prove charges against the appellants that they were the persons who killed Deo Bihari. It has come in the evidence of the prosecution witnesses that Deo Bihari while had gone to his field to cut Janera plants, he was chased by the appellants and sound of firing were heard by most of the witnesses far of the place of occurrence. The prosecution witnesses, however, have not unfolded the true picture of the case as to when firing had been made towards the southern side of the place, how the deceased was caught hold and was killed at the place of occurrence as disclosed by them. Since the evidence of PWs 1 and 4 are contradictory to each other, the testimony appears to be doubtful and it would not be safe to place reliance upon their evidence. Likewise, PW 3 Shyama Sinha has also not unfolded the true picture of the case and has suppressed the material fact as to the murder of her father. 21. For the reasons and discussions aforesaid, it is held that the prosecution has not proved the charges against the appellants beyond all, reasonable doubts and the appellants deserve the benefit of doubt. 22. In the result, all these appeals are allowed and the impugned judgment and order of conviction and sentence are set aside and the appellants are acquitted of the charges levelled against them. The appellants are on bail. They are therefore discharged from the liabilities of bail bonds. B.N.SINGH "NEELAM", J. 23 I agree.