JUDGMENT M.L. VISA, J.- All the three appeals, under consideration, arising out of the same Judgment and order dated 20.03.1993 passed by IIIrd Additional Sessions Judge, Arrah in Sessions Trial No. 323 of 1980 have been heard together and are being disposed of by this common order. 2. Krishna Yadav @ Krishna Ahir, sole appellant of criminal appeal No. 165 of 1993, has been convicted and sentenced to undergo rigorous imprisonment for life under Section 302/149, Indian Penal Code and rigorous imprisonment for two years under section 148, Indian Penal Code. Appellants Bishuni Ahir (Yadav), Kamta Yadav, Biyogi Yadav, Ram Newaj Yadav, Ram Shanehi Yadav, Ram Raj Yadav, Ram Balak Yadav, Roshan Yadav, Deban Yadav, Dasharath Yadav and Madan Thakur of criminal appeal No. 184 of 1993 have been convicted and sentenced to undergo rigorous imprisonment for life under Sections 302/149, Indian Penal Code and rigorous imprisonment for two years under Section 148, Indian Penal Code. Appellant Ram Singhashan Yadav, the sole appellant of criminal appeal No.245 of 1993 has been convicted and sentenced to undergo rigorous imprisonment for life under Section 302, Indian Penal Code, rigorous imprisonment for three years under Section 148, Indian Penal Code and rigorous imprisonment for seven years under Section 27, Arms Act. The different sentences, passed against each appellants, have been ordered to run concurrently. 3. The case of prosecution, as disclosed in the fardbayan of informant Sri Nath Gosain (P.W.9) is that on 20.03.1980 at about 8 a.m., his father Jagdish Gosain had gone to Radha Lohar and Karsan Lahar (both not examined) for repairing of his Janta (hand grinding mill) but he could not get it repaired. There he was surrounded by appellants Bishuni Ahir, Kamta Yadav and Ram Singhashan Yadav who asked him that on the previous day why he had gone to cut the wheat crop of a Math. The father of informant came running to the courtyard of his house. Informant, his younger brother, Ram Nath Gosain (P.W. 8), Manako Devi (P.W. 2), were in the house. While closing the door of his courtyard, the informant saw that appellants Ram Shanehi Yadav, Ram Raj Yadav, Biyogi Yadav, Roshan Yadav, Ram Newaj Yadav, Ram Balak Yadav, Deban Yadav, Dasharath Yadav, Dwarika Yadav (since deceased) alongwith Manan Dhobi (died during the pendency of trial), co-accused Guil Yadav, Madan Thakur (Naau) alongwith others, variously armed with gun, farsa, hasuli, surrounded his house. Informant and his family members closed the door and remained close to it so that no body can break the door. Father of informant, by standing in his courtyard started making hulla. In the meantime, appellant Ram Singhashan Yadav, Carrying a gun in his hand, claimed on the tiled roof of the house of the informant and fired from his gun which hit the father of informant on the right side of chest and he fell on the ground and died. There was hulla in the village that a number of persons including Bishnu Chamar and co-accused Sakaldip Chamar, carrying gun, from the side of Ichri village and co-accused chattu Ahir, Jagarnath Yadav, Bhim Ahir, appellant Krishna Ahir, co-accused Bharat Yadav, Meer Yadav, Sitaram Dusadh, Baleshwar Dusadh, Kariman Dhobi, lalan Dhobi and others belonging to village of informant went towards western side of village and started firing there and in this firing, Bir Bahadur Singh (P.W.3), Nabalig Singh (P.W.6), Shiv Shankar Singh (P.W. 15), Rameshwar Singh (not examined) and Ram Ayodhya Mahto (P.W. 13) received pellet injuries. The appellants and their companions, after entering the village, started beating those persons who had cut the paddy crop of Math and caused injuries to them also. They also tried to take away the dead body of father of informant but in the meantime, police reached there and appellants and their companions fled away but co-accused Madan Naau, Shiv Nath Dusadh, Phikka Mian, Guil Yadav, Daya Shankar Sah and appellant Bhuedhar Yadav (since dead) were caught by police. The informant came to know that the appellants and their companions made an attempt to kill Akhilesh Kumar Singh (not examined) who was coming on a cycle and he, after leaving his cycle, ran away. Informant, further, stated in his fardbayan that the occurrence was witnessed by Banarsi Singh (P.W. 11), Kishun Mahto (P.W. 12), Sarvajeet Singh (PW.1), Haridwar Singh (P.W. 10) and other persons of his village. 4. On the basis of fardbayan of informant, formal first information report (Exhibit-1) under Sections 147, 148. 149, 307, 302, 342, 323, 326, Indian Penal Code and Section 27, Arms Act was drawn against the appellants and others. 4. On the basis of fardbayan of informant, formal first information report (Exhibit-1) under Sections 147, 148. 149, 307, 302, 342, 323, 326, Indian Penal Code and Section 27, Arms Act was drawn against the appellants and others. After investigation, police submitted chargesheet against the appellants and Bhuedhar Yadav and Dwarika Yadav and 17 others persons out of whom one Bishuni Chamar was shown absconder under Sections 147, 148, 149, 307, 302, 323 and 324, Indian Penal Code and Section 27, Arms Act. All the appellants were charged under Section 148, Indian Penal Code. Besides this, appellant Ram Singhashan Yadav was further charged under Sections 302 and 307/149, Indian Penal Code and Section 27, Arms Act, Biyogi Yadav was charged under Sections 307 and 302/149, Indian Penal Code and Section 27, Arms Act and remaining appellants were further charged under Sections 302/149, Indian Penal Code and Sections 307/149, Indian Penal Code. During the pendency of trial, co-accused Manan Dhobi died and the appellants alongwith 17 other co-accused persons were put on trial and after trial, appellants alongwith Dwarika Yadav and Bhuedhar Yadav were found guilty and were convicted and sentenced while remaining co-accused persons were not found guilty and they were acquitted. Appellant Ram Singhashan Yadav was convicted and sentenced to undergo rigorous imprisonment for life under Section 302, Indian Penal code, rigorous imprisonment for three years under• Section 148, Indian Penal Code and rigorous imprisonment for seven years under section 27, Arms Act. Remaining appellants were convicted and sentenced to undergo rigorous imprisonment for life under section 302. Indian Penal Code and rigorous imprisonment for two years under Section 148, Indian Penal Code, Charges under Section 307, Indian Penal Code and Section 27, Arms Act against appellant Biyogi Yadav and under Sections 307/149, Indian Penal Code against remaining appellants could not be proved. Bhuedhar Yadav and Dwarika Yadav were among the appellants in criminal appeal No. 184 of 1993 but during the pendency of trial, they both died. 5. The case of the appellants before the trial Court was complete denial of the charges framed against them and their false implication. 6. In order to prove its case, prosecution produced 17 witnesses before the Court below. Out of these witnesses, Sarvajeet Singh (P.W.1) Monako Devi (P.W. 2), Bir Bahadur Singh (P.W. 3), Shiv Rato Devi (P.W. 4), Nabalig Singh (P.W. 6), Ram Nath Bharti (P.W. 8). 6. In order to prove its case, prosecution produced 17 witnesses before the Court below. Out of these witnesses, Sarvajeet Singh (P.W.1) Monako Devi (P.W. 2), Bir Bahadur Singh (P.W. 3), Shiv Rato Devi (P.W. 4), Nabalig Singh (P.W. 6), Ram Nath Bharti (P.W. 8). Kishun Mahto (P.W 12) and Shiv Shankar Singh (P.W 15) have not supported the case of prosecution and they have been declared hostile. Murat Ram (PW 5) is a formal witness who has proved the formal first information report (Exhibit-1). Sarvadeo Singh (P.W. 7), Ram Ayodhya Mahto (P.W 13) and Kapil Muni Singh (P.W 14) are tendered witnesses. Sri Nath Gosain (P.W. 9) is the informant. Dr. Ravindra Nath Sahay (P.W 17) is the doctor who had conducted autopsy on the dead body of father of informant. Haridwar Singh (P.W. 10), Banarsi Singh (P.W. 11) and Raj Rani Devi (P.W. 16) are witnesses to the occurrence. 7. Dr. Ravindra Nath Sahay (P.W. 17) is the doctor who held post mortem examination on 21.03.1980 on the dead body of deceased Bhadai Gosain @ Jagdish Gosain and found the following ante mortem injuries: (1) Multiple punctured wounds on right side of the chest in the auxiliary-plane about 16 in numbers and size of each would varied ¼ c.m. to ½ c.m. in diameter and the externed of injuries was 10" in length x 6" wide and depth varied from ½ to ½ and these wounds were caused by gunshot and seven pellets were removed from lung and chest wall, (2) Multiple punctures on the right side of the lung caused by the mellets, (3) Multiple punctures in the right side of levers caused by pellets. According to him lung was collapsed and right side of thorax was filled with blood and the caused of death was pellet injuries in the right lung and right side of lever causing severe hemorrhage and time elapsed since death was about 24 hours. He has proved his post mortem examination which is Exhibit-3. From his evidence, it is established that death of deceased was homicidal. 8. Srinath Gosain (P.W. 9), the informant, has said that on 20.03.1980 at about 8 a.m., his father had gone to a black Smith for getting his Janta repaired and at that time, he was in his house and he heard hulla of his father and when he came out of his house. 8. Srinath Gosain (P.W. 9), the informant, has said that on 20.03.1980 at about 8 a.m., his father had gone to a black Smith for getting his Janta repaired and at that time, he was in his house and he heard hulla of his father and when he came out of his house. he saw that his father was running towards house raising hulla and 8 to 10 persons were chasing him out of whom he identified appellants Ram Singhashan Yadav, Kamta Yadav, Biyogi Yadav, Roshan Yadav, Ram Shanehi Yadav, Ram Balak Yadav, Madan Thakur, Krishna Yadav, Ram Newaj Yadav, Ram Raj Yadav, Dashrath Yadav and Deban Yadav alongwith Manan Dhobi, Bhuedhar Yadav and Dwarika Yadav. Appellant Ram Singhashan Yadav was armed with a country made gun and other persons were armed with lathi, bhala and farsa. According to him, his father came running to his house and he, thereafter, closed the door from inside and the appellants and their companions knocked the door with lathis and, thereafter, appellant Ram Singhashan Yadav climbed on the roof of the house and when his father wanted to go on the southern portion of the partition wall separating his courtyard and courtyard of his uncle which both are parts of one house, appellant Ram Singhashan Yadav fired on him and at that time his mother, brother and wife of his brother were in the house. After firing, appellant Ram Singhashan Yadav came down from the roof and went towards eastern side and when the appellants and their companions left the place of occurrence, he went near his father and found that he had received injuries on his right side of chest and was dead. After it, Shiv Shankar Singh (P.W. 15) told him that some persons, from village Ichri, joined with the appellants and their companions and they had assaulted Nabalig Singh (P.W. 6) and Ram Ayodhya Mahto (P.W.13). When he came out from his house, Banarsi Singh (P.W. 11), Haridwar Singh (P.W. 10), Kishun Mahto (P.W. 12) and Sarvajeet Singh (P.W. 1), who were there. told him that they had also witnessed the occurrence. He has further said that the appellants and their companions wanted to take away the dead body of his father but in the meantime, police reached there. The police recorded his fardbayan on which he put his signature (Exhibit-2) and P.Ws. told him that they had also witnessed the occurrence. He has further said that the appellants and their companions wanted to take away the dead body of his father but in the meantime, police reached there. The police recorded his fardbayan on which he put his signature (Exhibit-2) and P.Ws. 11 and 12 also put their signatures (Exhibits-2/1 and 2/2) on his fardbayan. His evidence discloses that his courtyard and the courtyard of his uncle both are in one house partitioned by a wall of the height of chest level. He has denied the suggestion of defence that his father was killed on the preceding night of the day of occurrence by some unknown thieves and appellants have been falsely implicated in this case on account of enmity. Haridwar Singh (P.W. 10), in his evidence. has said that at the time of occurrence, he was at the Darwaza of his house and on hearing hulla, he went to the house of deceased where he saw that appellants Ram Singhashan Yadav, carrying a country made gun, had climbed on the roof of the house of deceased and some persons were standing towards north of the house of deceased out of whom he identified appellants Kamta Yadav, Ram Newaj Yadav, Biyogi Yadav, Ram Shanehi Yadav, Bishuni Yadav, Ram Balak Yadav and Bhuedhar Yadav (since dead) who were carrying arms with them and had surrounded the house of deceased. He went on a mound situate towards north of the house of deceased and from its height, he saw that when deceased went in the southern portion by crossing partition wall, appellant Ram Singhashan Yadav fired on him and, thereafter, appellant and their companions went towards western side of the village and from there also he heard the sound of firing. According to him, police reached there and after chasing arrested Bhudhar and Guil. He has said that after the appellants and their companions left the place, he went in the house of deceased and found him dead. About the genesis of occurrence, he has said that appellants were asking others not to work in the harvesting of the wheat crop of the land belonging to a Math but deceased did not obey them and one day prior to occurrence, he had worked for the Math in harvesting the wheat crop and appellants were giving threatening to the family members of deceased. In cross-examination, he has admitted that Kapil Singh is his own brother who in the year, 1964 had filed a theft case against appellants Ram Newaj Yadav, Ram Singhashan Yadav, Ram Shanehi Yadav alongwith Bhuedhar Yadav and Chattu Yadav but he has further said that in the appeal of that case, they were acquitted on basis of compromise. He has denied the suggestion of defence that before police, he had not named appellant Kamta Yadav as the person who was identified by him alongwith others. Banarsi Singh (P.W. 11) has also said that at the time of occurrence, he was at his house and on hearing hulla, he went to the house of deceased and found that appellants Ram Singhashan Yadav, Ram Newaj Yadav, Kamta Yadav, Biyogi Yadav, Bishuni Yadav, Ram Shanehi Yadav, Ram Balak Yadav and Bhuedhar Yadav (since dead) had surrounded the house of deceased and appellant Ram Singhashan Yadav, carrying country made gun, climbed on the roof of the house of informant. He has said that all the appellants were armed with gun, fasuli etc. and appellant Ram Singhashan Yadav fired from his country made gun in the courtyard and, thereafter, all the appellants fled away towards eastern side and he heard firing from the side of bank of river and in that firing, four to five persons were injured. He has further said that after some time, police reached there and apprehended 5-6 accused persons and as a result of firing by appellant Ram Singhashan Yadav from the roof of informant, father of informant received gunshot injuries and he died. He has further said that in his presence, fardbayan of informant was recorded by police on which he also put his signature (exhibit-B/1). According to him. the appellants are threatening widow of deceased and other family members of informant for not deposing in this case. Raj Rani Devi (P.W. 16) is the daughter-in-law of deceased and wife of brother of informant. She, in her evidence has said that at the time of occurrence, she was in her house and her father-in-law had gone to a blacksmith for repairing of his Janta and thereafter, she heard hulla and saw that her father-in-law, after coming in the courtyard of the house, closed the door and there. She, in her evidence has said that at the time of occurrence, she was in her house and her father-in-law had gone to a blacksmith for repairing of his Janta and thereafter, she heard hulla and saw that her father-in-law, after coming in the courtyard of the house, closed the door and there. was hulla of Maro-Maro outside her house she has further said that she saw appellant Ram Singhashan Yadav had climbed on the roof of her house with a gun and when his father-in-law, on seeing him. wanted to go in the courtyard of his brother by scaling over the partition wall, appellant Ram Singhashan Yadav fired from his gun causing injury to her father-in-law who died and fell in the courtyard of his brother. She has not stated anything about any other appellant. 9. The case of prosecution is spread over in three parts. First part relates to the time when deceased had gone to Radha Lohar and Kersen Lohar for getting his Janta repaired when appellants Ram Singhashan Yadav, Bishuni Yadav and Kamta Yadav surrounded him and enquired from him why he had worked in harvesting the wheat crop of Math. Second part relates to the incident when deceased came running to his house chased by appellants and their companions and appellant Ram Singhashan Yadav, after climbing on the roof of the house of informantm, fired at deceased resulting into his death and other appellants and their companions, variously armed with deadly weapons, sun as bhala, lathi, fasuli, had surrounded the house and third part is about the occurrence which is said to have been committed by the appellants and their companions joined by some other persons of village Ichari causing injuries to some persons at a place towards west of the village of informant. For the first part and third part of the occurrence, no evidence has been led on behalf of prosecution. The Court below, on this ground, acquitted some co-accused persons who were said to have taken part in the occurrence which took place towards west of the village. About appellant, Krishna Yadav, the sole appellant of criminal appeal No. 165 of 1993, we find that in the fardbayan, he is not named by informant as the person who participated in the commission of either first or second part of the occurrence. About appellant, Krishna Yadav, the sole appellant of criminal appeal No. 165 of 1993, we find that in the fardbayan, he is not named by informant as the person who participated in the commission of either first or second part of the occurrence. There he has been named among those persons who resorted to firing at a place towards west of the village after firing at deceased. In evidence also, except informant, other witnesses have not named him. The informant has said that he identified appellant Krishna Yadav among the persons who were seen by him chasing his father when his father when his father was running towards his house. In view of the fact that, except informant, none of the prosecution witnesses has named him in his or her evidence and in the fardbayan, the informant has not named him as the person who was seen by him among those who were chasing his father, we find that the evidence of informant that appellant Krishna Yadav was also among those persons who was seen by him chasing his father, does not inspire confidence. The other co-accused persons who, according to fardbayan, were said to have taken part in the incident which took place towards west of village have been acquitted and we find that in absence of any evidence, they have rightly been acquitted. The case of appellant Krishna Ahir is identical to those persons and we, therefore. find that his conviction by the Court below does not appear justified only on the solitary evidence of informant that he had seen him running alongwith others after his father which. as stated earlier, is against the fardbayan of informant where he was not named among those persons and there it was clearly stated that he and other persons had opened fire towards west of the village causing injuries to a number of persons about which allegation, there is absolutely no evidence. 10. as stated earlier, is against the fardbayan of informant where he was not named among those persons and there it was clearly stated that he and other persons had opened fire towards west of the village causing injuries to a number of persons about which allegation, there is absolutely no evidence. 10. About the manner in which deceased is said to have received gunshot injury by appellant Ram Singhashan Yadav, his learned counsel has argued that according to the evidence of informant, the deceased, after receiving injury, fell in his own courtyard and Haridwar Singh (P.W. 10) has also said that after the appellants left the place of occurrence when he went in the house of deceased, he found the dead body lying in his house but Raj Rani Devi (P.W.16), in her evidence has said that after receiving gunshot injury, body of deceased fell in the courtyard of his brother. It has been further submitted on behalf of the appellants that Investigating Officer has not been examined in the case who would have given an objective finding about the place where he found the dead body of deceased lying and the contradictory statements of prosecution witnesses about the place where the dead body of deceased fell after receiving gunshot injury makes the case of prosecution quite doubtful. We are unable to agree with this submission. The evidence of prosecution witnesses is consistent that the court yards of deceased and his brother are in the same house partitioned by a wall. Their further case is that when the deceased was trying to go in the courtyard of his brother by scaling over the wall, appellant Ram Singhashan Yadav fired on him. The informant nowhere, in his evidence, has said that after receiving gunshot injury, the body of his father fell in his courtyard. According to his evidence, when his father was scaling over the wall, he was shot at and after the appellants and their companions left the place of occurrence, he went near the body of his father and found him dead with firearm injury on his right chest. In para-11 of his evidence, he has said that after touching the body of his father, he came out through the main door of his uncle. In para-11 of his evidence, he has said that after touching the body of his father, he came out through the main door of his uncle. This clearly shows that body of his father had fallen in the courtyard of his uncle and this evidence is supported by the evidence of P.W. 15 who is the daughter-in-law of deceased. Besides this, the question of falling the dead body of deceased in his courtyard or in the courtyard of his brother does not carry much importance in this case because, admittedly, both courtyards are partitioned by a wall and it is the consistent evidence of prosecution witnesses that when deceased tried to cross the boundary wall by scaling over it, appellant Ram Singhashan Yadav fired on him by his country made gun. So, we find that so far the allegation against appellant Ram Singhashan Yadav of firing at deceased with his country made gun by climbing on the roof of the house of informant is concerned, the same finds support from the evidence of prosecution witnesses and it stands proved. 11. Barring appellant Ram Singhashan yadav, other appellants in this case have been convicted and sentenced under Sections 302/149 and 148, Indian Penal Code. So far conviction and sentence of other appellants under Section 148, Indian Penal Code is concerned, there is no specific evidence adduced on behalf of prosecution that they all were armed with deadly weapons. Informant, in his evidence, has simply said that appellants Ram Singhashan Yadav was armed with a country made gun whereas other appellants were armed with lathi, bhala, farsa. He has made an omnibus allegation against other appellants that they were carrying lathi, bhala, farsa without specifying which appellant was carrying which weapon. Haridwar Singh (P.W.10) has said that other appellants were armed with weapons and had surrounded the house of informant. Similarly, Banarsi Singh (P.W. 11) has said that the mob of appellants was armed with gun. fasuli etc. These witnesses have also made omnibus allegation that remaining appellants were armed with weapons without giving details of weapon carried by each appellant. In such type of vague allegation, it cnnot be inferred that barring appellant Ram Singhashan Yadav, all other appellants were armed with delay weapons. fasuli etc. These witnesses have also made omnibus allegation that remaining appellants were armed with weapons without giving details of weapon carried by each appellant. In such type of vague allegation, it cnnot be inferred that barring appellant Ram Singhashan Yadav, all other appellants were armed with delay weapons. About the allegation under Sections 302/149, Indian Penal Code against other appellants, we find that the only evidence against them, as stated by informant, is that on hearing hulla when he came out of his house. he found his father raising hulla and was coming running towards his house and he was followed by 8 to 10 persons and among them he identified all the appellants except Dasharath Yadav Haridwar Singh (P.W.10) and Banarsi Singh (P.W.11) have said that they had seen some of the appellants surrounding the house of informant. According to case of prosecution when the deceased had gone to get his Janta repaired to Radha Lahar and Kersen Lahar, appellants Bishuni Yadav. Ram Singhashan Yadav and Kamta Yadav had enquired from his why he had worked in harvesting the wheat crop of land of Math. No evidence on this part of occurrence has been led by prosecution and the case of prosecution to this extent is confined only to fardbayan in which about other appellants even there is no whisper that they were also with the aforesaid three appellants when enquiry was made from deceased for his taking part in harvesting the wheat crop of the land of Math. Thereafter, informant saw his father running towards his house and after his father, appellants were also running and following him. Merely on the basis of this evidence, it cannot be said that appellants had any common object of killing the deceased. It also cannot be said that other appellants had any connection with appellant Ram Singhashan Yadav. The possibility of their running for curiosity towards the house of deceased when they found he was being chased by appellant Ram Singhashan Yadav, cannot be ruled out. We, therefore, find that barring appellant Ram Singhashan Yadav, so far the case of other appellants is concerned, there is no evidence on record to show that they shared any common object with appellant Ram Singhashan Yadav to commit the murder of deceased. We, therefore, find that the charge under Sections 302/149, Indian Penal Code against them is not proved beyond reasonable doubts. We, therefore, find that the charge under Sections 302/149, Indian Penal Code against them is not proved beyond reasonable doubts. But so far appellant Ram Singhashan Yadav is concerned, the prosecution has fully proved that he, by a country made gun, fired at deceased which resulted in his death. So the charges under Section 302, Indian Penal Code and Section 27, Arms Act against appellant Ram Singhashan Yadav stand proved. So far charge under Section 148, Indian Penal Code against appellant Ram Singhashan Yadav is concerned, as we have found that the prosecution has not been able to prove that there was any unlawful assembly, so this charge under Section 148, Indian Penal Code against him fails. 12. In the result criminal appeal No. 165 of 1993 and criminal appeal No. 184 of 1993 are allowed and appellants Krishna Yadav @ Krishna Ahir, Bishuni Ahir (Yadav), Kamta Yadav, Biyogi Yadav, Ram Newaj Yadav, Ram Shanehi Yadav, Ram Raj Yadav, Ram Balak Yadav, Roshan Yadav, Deban Yadav, Dasharath Yadav and Manda Thakur are acquitted of the charges and as they are on bail, they are discharged from the liabilities of their bail bonds. 13. In criminal appeal No. 245 of 1993 in which Ram Singhashan Yadav is the sole appellant, the conviction and sentence of appellant Ram Singhashan Yadav under Section 148, Indian Penal Code is set aside but his conviction under Section 302, Indian Penal Code and Section 27, Arms Act is upheld and with this modification, this appeal is dismissed.