Judgment S.N.Jha and Rajendra Prasad JJ. 1. The appellants have been convicted under Sections 302/149 of the Penal Code and sentenced to rigorous imprisonment for life. They have also been convicted under Sections 307/149 and 380 of the Penal Code and sentenced to rigorous imprisonment for 10 years and 3 years respectively. They have further been convicted under Section 27 of the Arms Act and sentenced to imprisonment for five years. 2. It may be stated at the outset that when the hearing was about to conclude Shri Anil Kumar Mishra, learned counsel representing appellant Rama Rai, stated that the said appellant died a year ago in jail. There being no affidavit to that effect nor any report from the jail authorities in the ordinary course we should have adjourned the hearing of the case and sought report. However, considering that the other two appellants too are in jail, we thought it appropriate to proceed with the hearing since verification of the statement would have consumed some time. This was also the suggestion of the counsel for the other appellants and the State. Shri Mishra however, did not advance any argument on behalf of the appellant Rama Rai. 3. The case of the prosecution may briefly be stated as follows. On 13.3.95 the members of the family of Mahendra Rai of village Sobarna within Awatar Nagar Police Station of Saran District went to sleep after taking their meal. While Bharat Rai, Rajeshwar Rai, Yogendra Rai, Raj Kishore Rai @ Jai Kishore Rai and children went to sleep at the Dalan, Raghunath Rai, his wife Shanti Devi along with some other female members of the family slept inside the house. Mahendra also slept there. At about 0.30 hours in the midnight Mahendra Rai woke up on hearing sound of explosion of bomb. Coming out of his room he went on the roof of the house. In the torch light he saw 15-20 persons variously armed standing there. Amongst them, he identified the appellants and one Birendra Rai and Rama Shankar Singh. All of them were carrying rifle or gun. Seeing them with fire arms Mahendra Rai jumped on the house of his neighbour Dharamnath Rai. The above said persons entered into the house and attacked his brother Raghunath Rai. He heard Raghunath Rai calling names of the appellants and said Rama Shankar Singh and Birendra Rai. All of them were carrying rifle or gun. Seeing them with fire arms Mahendra Rai jumped on the house of his neighbour Dharamnath Rai. The above said persons entered into the house and attacked his brother Raghunath Rai. He heard Raghunath Rai calling names of the appellants and said Rama Shankar Singh and Birendra Rai. Thereafter Mahendra Rai heard sound of gun fire. The miscreants in the meantime surrounded the house and the Dalan. Villagers reached there on hearing the sound of gun fire but did nothing out of fear. Firing went on for about 45 minutes. Finally, the miscreants fled away. When Mahendra Rai returned, he found that Bharat Rai, Rajeshwar Rai @ Dinanath Rai and Yogendra Rai had been shot dead at Dalan, Raj Kishore Rai @ Jai Kishore Rai was injured. He was sent to Sadar Hospital at Chapra for treatment. Inside the house the miscreants had killed Raghunath Rai. 4. The occurrence was narrated by Mahendra Rai to the Officer-in-charge of Awatar Nagar Police Station on the next day i.e. 14.3.1995 at about 10.30 A. M. at his house i.e. the place of occurrence. In the fardbeyan he disclosed that the motive behind the occurrence was long standing enmity between accused Rama Shankar Singh and himself. On account of that enmity they had come to kill him. On the basis of the said fardbeyan Awatar Nagar P.S. Case No. 31/95 was instituted and investigation commenced. At the end of the investigation, after completing necessary formalities, the Investigating Officer submitted charge-sheet and the appellants were thus put on trial. 5. At the trial the prosecution examined 13 witnesses to prove its case. Out of them P.Ws. 2, 3, 4, 5, 10 and 11 were examined as eye witnesses. P.W. 2 Shanti Devi is wife of deceased Raghunath Rai, P.W.3 Sumitra Devi is wife of deceased Bharat Rai, P.W.4 Lilawati Devi is sister-in- law (Gotni) of P.Ws. 2 and 3, P.W.5 Sukhiya Devi is wife of Hawildar Rai, cousin of the informant, P.W. 10 is Jai Kishore Rai who allegedly sustained injuries in course of the occurrence at the Dalan, P.W. 11 is informant Mahendra Rai himself. Besides them, Baliram Rai, father of the deceased Yogendra Rai who also claimed to have seen part of the occurrence was examined as P.W.7 Baleshwar Rai, a co-villager who claimed to be hearsay witness was examined as P.W.12. Besides them, Baliram Rai, father of the deceased Yogendra Rai who also claimed to have seen part of the occurrence was examined as P.W.7 Baleshwar Rai, a co-villager who claimed to be hearsay witness was examined as P.W.12. The array of witnesses includes three doctors namely, P.Ws. 1, 8 and 9. P.W.1 Dr. Deepak Kumar had held post mortem of deceased Raghunath Rai and Bharat Rai, while P.W. 8 Dr. Ram Ekbal Prasad had examined injuries on P.W.10 Jai Kishore Rai, P.W.9 Dr. Uma Shankar Srivastava had held post mortem of deceased Dinanath Rai and Yogendra Rai. Besides them, P.Ws. 6 and 12 were examined as formal witnesses on the point of inquest. The Investigating Officer, S.l. Bishwanath Singh was examined as Court witness no. 1. 6. Shri Ajay Kumar Thakur learned counsel for the appellants Sudarshan Rai and Mukti Singh submitted that the appellants have been implicated on account of admitted enmity between the parties and the informant was not present at the place of occurrence. When he came there, after due deliberations he concocted the case against these appellants and their men. The police admittedly having reached the place of occurrence at about 7.40 a.m., there is no reason why Mahendra Rai would not make statement about the occurrence. Counsel submitted that the earlier version of the occurrence has been withheld by the prosecution which is evident from the fact that P.W.10 Jai Kishore Rai as per his evidence had gone to the Sadar Hospital.Chapra at 8/9 A.M. when his statement was taken by the Bhagwan Bazar Police vide Ext. D/1. Referring to the evidence of the Investigating Officer Shri Thakur submitted that as per the earliest version of the village Choukidar Lochan Manjhi the crime was committed by unknown miscreants. In fact, the Choukidar in his statement had also mentionedthat perhaps Mahendra Rai had been taken away by the miscreants which lends support to the appellants case that Mahendra Rai was not present at the place of occurrence. He after making deliberations lodged the case at 10.30 A.M. 7. From the evidence of Investigating Officer it appears that Choukidar Lochan Manjhi lodged sanha at 7 A.M. to the effect that at 6 A.M. he received information about an occurrence in which three persons of the family of Mahendra Rai of village Sobarna had been killed in the preceding night by unknown miscreants. From the evidence of Investigating Officer it appears that Choukidar Lochan Manjhi lodged sanha at 7 A.M. to the effect that at 6 A.M. he received information about an occurrence in which three persons of the family of Mahendra Rai of village Sobarna had been killed in the preceding night by unknown miscreants. Perhaps, Mahendra Rai too had been kidnapped. The said information was reduced to writing as Station Diary Entry no. 288/95 on 14.3.95. Immediately thereafter he and the Officer-in-charge along with a posse of police force proceeded for the place of occurrence reaching there at 7.40 A.M. He held inquest between 7.45 and 8.30 A.M. At 10.30 A.M. he recorded the fardbeyan of Mahendra Rai. Ordinarily, the investigation of the case commences with the recording of the fardbeyan and even if it be assumed that in the instant case the Investigating Officer in his wisdom started with the inquest which too in the eye of law amounted to commencement of investigation, there is no explanation as to why the fardbeyan was not recorded for two hours between 8.30 and 10.30 A.M. Curiously, in paragraph 15 of his evidence the l.O. stated that the informant was not ready to make statement. lt is only after the Superintendent of Police arrived and persuaded him to do so that he made the statement. It is difficult to appreciate that a person whose four members of the family had been killed would not make statement and require to be persuaded by the Superintendent of Police to do so. The above aspect of the case assumes significance in view of the fact that as per the evidence of P.W.10 Jai Kishore Rai he had gone to the hospital at Chapra between 8/9 A.M. where his statement was taken by the Bhagwan Bazar Police after examination of injuries by the Doctor. P.W.8 Dr. Ram Ekbal Prasad stated in his evidence that he examined his injuries at 8.10 A.M. which suggests that the statement was made soon after. A doubt arose as to whether the statement of Jai Kishore Rai was recorded by Bhagwan Bazar Police or not. From perusal of Sanha entry, Ext. D/1 however, it is evident that at 10.30 A.M. Sub-Inspector S.P. Singh of Bhagwan Bazar Police Station had returned to the police station along with the fardbeyan of Jai Kishore Rai. As a matter of fact, from Ext. From perusal of Sanha entry, Ext. D/1 however, it is evident that at 10.30 A.M. Sub-Inspector S.P. Singh of Bhagwan Bazar Police Station had returned to the police station along with the fardbeyan of Jai Kishore Rai. As a matter of fact, from Ext. D, another Sanha entry, it appears that information was received at the Bhagwan Bazar Police Station at 9.35 A.M. to the effect that an injured of village Sobarna had been brought to Sadar Hospital. After reducing that information to writing as Station Diary Entry No. 397, Sub Inspector S. P. Singh proceeded to the Sadar Hospital where he recorded the statement of Jai Kishore Rai coming back to the police station at 10.30 A.M. vide Ext. D/1. As a matter of fact, from the next station diary entry no. 402 it appears that at 10.35 A.M. the fardbeyan was forwarded to the Avtar Nagar Police Station as the occurrence had taken place within the jurisdiction of Avtar Nagar Police Station. 8. It is thus apparent that statement of Jai Kishore Rai was recorded between 9.35 A.M. and 10.30 A. M. on 14.3.95 which has been conveniently withheld by the prosecution. As per the case of the prosecution Jai Kishore Rai had slept at the Dalan alongwith three deceased namely, Bharat Rai, Rajeshwar Rai alias Dinanath Rai and Yogendra Rai and in his presence they were killed. As a matter of fact, Jai Kishore Rai allegedly sustained injuries in course of the occurrence. He was thus most competent person on the point of occurrence which took place at the Dalan. That version of the occurrence having been withheld by the prosecution, for reason not disclosed, the benefit of doubt must go to the accused. 9. It is relevant to mention here, while dealing with the evidence of P.W.10 Jai Kishore Rai, that in paragraph 6 of his evidence he stated that before he proceeded to the Hospital he met Mahendra Rai at about 5 A.M. Curiously, however, he did not disclose to him that the appellant Rama Rai had killed deceased Yogendra Rai, or appellant Sudarshan Rai had killed Dinanath Rai and appellant Mukti Singh had killed Bharat Rai. It is difficult to appreciate the conduct of P.W.10. It is difficult to appreciate the conduct of P.W.10. Assuming that he met Mahendra Rai in the morning following the night of occurrence, having lost three close relatives, natural conduct would have been to immediately disclose the names of the assailants. As a matter of fact, we are inclined to disbelieve in the facts and circumtances that any meeting took place between Jai Kishore Rai and Mahendra Rai. If Jai Kishore Rai had met him he would have certainly disclosed the details of the occurrence and in that case Mahendra Rai would have narrated the incident at Dalan in a different manner. All that he said in the fardbeyan was that when he returned after the miscreants left the place, he found that his brother Bharat Rai, nephew Raj Kishore Rai alias Dinanath Rai and Yogendra Rai had been shot dead. It is relevant to mention here that Jai Kishore Rai did not disclose the names of the assailants even before the Investigating Officer vide paragraph 22 of his (l.O.) evidence even though he was examined by the Investigating Officer 3 days after the occurrence on 17.3.95. The presence of the informant at the time of occurrence being doubtful and the earliest version of P.W.10 Jai Kishore Rai having been withheld by the prosecution, a serious loophole had occurred in the prosecution case, the benefit of which undoubtedly must go to the appellants. 10. Shri Lala Kailash Bihari Prasad learned counsel for the State submitted that even if the first part of the occurrence at the Dalan is disbelieved there is sufficient evidence proving the presence of the appellants at the time of second part of the occurrence inside the house where deceased Raghunath Rai was killed. He placed reliance on the evidence of P.W.2 wife of deceased Raghunath Rai, and the supporting evidences of P.Ws. 3, 4 and 5, her Gotnis. He submitted that the manner in which the occurrence took place as a whole leaves no room for doubt that it is the same miscreants Dalan (sic) and therefore, the appellants must be held guilty of the entire crime. 11. We have carefully scanned the evidence of P.W.2 whose presence at the time of occurrence cannot be doubted. In her evidence P.W.2 stated that she did not know the appellants from before. 11. We have carefully scanned the evidence of P.W.2 whose presence at the time of occurrence cannot be doubted. In her evidence P.W.2 stated that she did not know the appellants from before. She however, came to know their names as her husband before being killed had named each of them. She identified appellants Sudarshan Rai and Rama Rai as the persons who entered the room when her husband Raghunath Rai was killed. She claimed to have seen them in the lantern light. 12. On behalf of the appellants it was submitted that P.W.2 claimed to have identified the appellants Sudarshan Rai and Rama Rai at their houses where she had been taken for the purpose of identification by the Investigating Officer which fact the Investigating Officer denied in his evidence. This in our opinion casts doubt about veracity of her evidence on the point of identification. Had P.W.2 seen the assailants at the time of occurrence, even if she was not known from before by face or names, in the normal course she would have claimed it before the Investigating Officer. In para 17 of his evidence, the Investigating Officer stated that she did not claim to have identified them nor she stated about identification in the light of lantern. Once the appellants case is accepted that Mahendra Rai was not present at the time of occurrence and he concocted the case after due deliberations during the intervening period, the evidence of P.W.2 would lose its force and credibility. Perusal of the evidence of P.W. 2 and other witnesses namely, P.Ws. 3, 4 and 5, rather suggests that everybody sang the same song played by the informant in his fardbeyan. If it is accepted that fardbeyan does not depict the true story of the occurrence, the reiteration thereof by the witnesses in their evidence cannot be relied upon for accepting the prosecution case. As submitted by the State counsel, the occurrence inside the house being continuation of the same occurrence, perpetrated by the same miscreants, once the prosecution case about the appellants committing the crime in the Dalan is disbelieved, it would be difficult to hold that they entered inside the house and committed the murder of Raghunath Rai there. In other words, they cannot be held guilty for the murder of Raghunath Rai either. 13. In other words, they cannot be held guilty for the murder of Raghunath Rai either. 13. Upon consideration of the entire evidence, we are of the view that there are loopholes in the prosecution case and on the evidence on the record is not sufficient to prove the guilt of the appellants. In these premises the appellants are entitled to benefit of doubt. 14. In the result, these appeals are allowed. The judgment and order of conviction and sentence awarded to the appellants are set aside and they are acquitted of the charges. Appellants Sudarshan Rai and Mukti Singh, who are in jail, are directed to be released forthwith if not wanted in any other case. Appellant Rama Rai (if he is alive) is also directed to be released forthwith if not wanted in any other case.