JUDGEMENT S.N. JHA, J.:- The appellants in these appeals have been convicted under section 302/149 of the Indian Penal Code and sentenced to rigorous imprisonment for life. They have also been convicted under section 307/149 and section 148 of the Penal Code and sentenced to rigorous imprisonment for ten years and two years respectively. 2. The case of the prosecution, briefly stated, is as follows. In the night of 29/30.4.84 Rajnath Singh of village English within Baroon P.S. of Aurangabad district was sleeping at the Baithka of his Dalan. His uncle Mahabir Singh was sleeping inside in a room. Here Krishna Singh, his son, was also sleeping in the same room. At about 10 P.M. Rajnath Singh heard the sound of gun fire. Apprehending that dacoity was being committed he came out and hid himself in a bush. He again heard sound of 3-4 gun fire. He saw 10-12 person coming out with weapons and torch light. They fled towards east. Thereafter Rajnath Singh rushed towards his residential house. On way he found his father Dukhan Singh lying injured in a restless condition near Deo Asthan. Blood was oozing from stomach and hand. Ram Briksha Mishtry, Bishun Chaudhary, Tapeshwar Singh and others reached there. Later his (Rajnath) brother Ramnath Singh also came there. He informed that the criminals had killed Mahabir Singh. Rajnath Singh and others took Dukhan Singh to Baroon Police Station or a tractor. On way Dukhan Singh regained consciousness for a while and told him that the appellants along with 5-6 unknown had come armed with guns, spears, swords etc. Appellant Parma Ram had fired shot at him. After saying so Dukhan again lost consciousness. 3. The occurrence was reported by Rajnath Singh at Baroon police station before the Officer Incharge at 1 A.M. He started in the Fardbayan that the cause of the incident was on-going land dispute between the parties. Sometime back, brother of appellant Parma Ram had been killed and the appellants believed that Rajnath and his family members had got him killed. On the basis of the said Fardbayan, the police instituted Baroon P.S. Case No. 68/84. After completing the investigation charge-sheet was submitted against the appellants and they were put on trial. 4. Sometime back, brother of appellant Parma Ram had been killed and the appellants believed that Rajnath and his family members had got him killed. On the basis of the said Fardbayan, the police instituted Baroon P.S. Case No. 68/84. After completing the investigation charge-sheet was submitted against the appellants and they were put on trial. 4. At the trial the prosecution examined 13 witnesses to prove its case, out of whom P.W.1 Ram Pukar Singh, P.W.6 Ramjee Singh and P.W.13 Satyendra Kumar Pandey were examined as formal witnesses. They respectively proved the Fardbayan, seizure, inquest and post mortem report. P.W.10 Ram Briksh Mistry was tendered for cross-examination. P.W.5 Bishun Choudhary and P.W.8 Bandhu Thakur did not support the prosecution case and they were declared hostile. The doctor, who held the post mortem, was not examined. The post mortem report, as noted above, was proved by a formal witnesses namely, P.W.13 Satyendra Kumar Pandey. The material witnesses on the point of occurrence are P.W.2 Dukhan Singh, P.W.3 Rajnath Singh (informant), P.W.4 Hare Krishna Singh, P.W.9 Tapeshwar Singh and P.W.11 Hari Shankar Singh. Out of these P.Ws. 3, 9, 11 are hear-say witnesses. The witnesses on the point of actual occurrence thus are P.W.2 Dukhan Singh and P.W.4 Hare Krishna Singh. As a matter of fact, P.W. 2, as seen above, was injured in the occurrence. P.W. 4 was allegedly sleeping in the same room in which deceased Mahabir Singh was sleeping and he claimed to have seen the killing. It may be stated here that P.W.3 Rajnath Singh i.e. the informant is the son of P.W.2 Dukhan Singh, while P.Ws. 4 and 11 Hare Krishna Singh and Hari Shankar Singh are sons of deceased Mahabir Singh. Mahabir Singh and Dukhan Singh were brothers and P.Ws.4 and 11 are thus nephews of Dukhan Singh and cousins of Rajnath Singh. The appellants did not examine any witness in defence. They took the usual plea of innocence and false implication on account of enmity. At the end of trial the trial court convicted the appellants is the manner indicated above. 5. Shri Krishna Prasad Singh, learned counsel for the appellants, submitted that the occurrence was committed by unknown criminals, maybe, by the members of the MCC. Though P.Ws. 2 and 4 claimed to have identified the appellants in course of occurrence, the evidence on the point is not conclusive. 5. Shri Krishna Prasad Singh, learned counsel for the appellants, submitted that the occurrence was committed by unknown criminals, maybe, by the members of the MCC. Though P.Ws. 2 and 4 claimed to have identified the appellants in course of occurrence, the evidence on the point is not conclusive. P.W.2, in fact, was not even present at the time and place of occurrence. He submitted that there are serious discrepancies in the prosecution case arid took us through the evidence. 6. Though the informant is a hear-say witnesses, I will first refer to his evidence. He reiterated his Fardbayan version. He stated that he woke up on hearing the sound of gunfire and thought that dacoits had come. He hid himself in a bush and after the criminals left the place ran towards the village. On way near Deo Asthan he found his father Dukhan, Singh lying unconscious in an injured condition. P.W.5 Bishun Choudhary, P.W. 9 Tapeshwar Singh and P.W.10 Ram Briksha Mistry came there. Later his brother Ram Nath Singh also came there and stated that the uncle i.e. Mahabir Singh had been shot at and his throat had been cut. He gave his Fardbayan at the police station. 7. It is relevant to mention here that though in his Fardbayan the Informant had stated that Dukhan Singh held regained consciousness for a while on wav to police station and had disclosed names of the assailants, in his evidence he did not say about Dukhan regaining consciousness and making any disclosure. This improvement was on account of the fact that in his statement which he made at Aurangabad Hospital at 6.45. A.M. on 30.4.84 (which was initially recorded as Fardbayan), Dukhan Singh had stated that he remained unconscious all along until he reached the hospital. As a matter of fact, in his evidence also Dukhan Singh clearly stated that he regained consciousness only in the next morning at 5 A.M. 8. It is also relevant to mention here that out of P.Ws. 5, 9 and 10, besides Ramnath Singh (who was not examined), who are said to have reached Deo Asthan where Dukhan Singh was lying injured and unconscious, P.W.5 turned hostile and did not support the prosecution case, while P.W.10 was simply tendered, may be because the prosecution was not sure about what he would say in evidence. Only P.W.9 Tapeshwar Singh stood by the Prosecution case. Only P.W.9 Tapeshwar Singh stood by the Prosecution case. Before referring to the evidence of PWs. 2 and 4 i.e. Dukhan Singh and Hare Krishna Singh, I consider it appropriate to refer to the evidence of P.W.9 here itself. 9. P.W.9 supported the informant's version that when he reached Deo Asthan at about 10 P.M. on hearing sound of gun fire and alarm he found Dukhan Singh lying in injured condition. He saw Bishun Choudhary, amongst others, there. Thereafter Ramnath Singh and others came there Ramnath informed that the appellants, had fired at Dukhan Singh and had killed Mahabir Singh. 10. The salient feature of the evidence of P.W.9 is that according to him, before reaching the Deo Asthan, Ramnath Singh had gone to the Baithka/Dalan. When he was narrating the incident Rajnath Singh i.e. the informant was there. It may be recalled that as per the Fardbayan version of the informant, he claimed to have learnt about the assailant from Dukhan Singh while on way to Baroon P.S. on the tractor. Though P.W.9 stated that Ramnath had disclosed names of the appellants as the culprits, the informant did not say so even in his, evidence in court. 11. I may at this stage refer to the evidence of another hearsay witness i.e. P.W.11 Hari Shankar Singh. As mentioned above, he is son of deceased Mahabir Singh and cousin of the informant. It may be pointed out that though he claimed to have reached Deo Asthan, like the informant and others, neither in the Fardbayan nor even in his evidence the informant mentioned about his presence at the place as he did regarding others. As a matter of fact, his name was not disclosed in the body of the Fardbayan at all. Be that as it may, this witness stated in his evidence that when he woke up on hearing the sound of gun fire he saw his uncle Dukhan Singh running away and 10-15 persons chasing him. One of them fired. The shot hit the right hand of Dukhan Singh 8-10 out of them returned and went towards the Dalan where his father i.e. Mahabir Singh was sleeping. They entered the room. Out of fear he ran towards north along with his another brother Harinath Singh. One of them fired. The shot hit the right hand of Dukhan Singh 8-10 out of them returned and went towards the Dalan where his father i.e. Mahabir Singh was sleeping. They entered the room. Out of fear he ran towards north along with his another brother Harinath Singh. After the miscreants left the place he went there and found that his father had sustained gun, shot injures in his thigh and, his neck was cut. He was dead He found his brother Here Krishna Singh in the room. 12. The salient feature of the evidence of P.W.11 is that according to him, many villagers including P.W.6 Ramjee Singh, P.W.8 Bandhu Thakur and P.W.9 Tapeshwar Singh had reached the place of occurrence where his father way lying dead and made inquiries from his brother i.e. P.W.4 Hare Krishna Singh. Ramnath Singh also came there before the informant Rajnath Singh left for police station he too came there and there was a talk amongst Rajnath Singh, Ramnath Singh, Hare Krishna Singh and himself. It may be mentioned that amongst those who reached the place, P.W.6 was examined as a formal witness while P.W. 8 turned hostile. 13. Now coming to the evidence of P.W.2 Dukhan Singh as already mentioned above, he had earlier made statement which was recorded by the Assistant Sub inspector of Police of Aurangabad P.S. at the Emergency Ward of the Sadar Hospital Aurangabad on 30.4.84 at 6.35 A.M. Therein he had stated that while he was sleeping in the preceding night at his Bathan along with his brother i.e. deceased Mahabir Singh his brother was sleeping inside and he was sleeping in the verandah-at about 10 P.M. some persons came there and gave an order to kill. Soon one of them fired which hit him below the chest. He ran from the place. He identified the person who had fired as appellant Krishna Ram by voice. Appellant Parma Ram was named as the person who had exhorted to kill. He further stated that while he was fleeing away, another shot was fired by Parma Rai causing injury on his palm. Fleeing away he ran towards Deo Asthan. Although the said statement was recorded as Fardbayan, in view of the fact that the statement of Rajnath Singh had been recorded at 1 A.M. i.e. earlier in point of time it was treated as the Fardbayan of the case. Fleeing away he ran towards Deo Asthan. Although the said statement was recorded as Fardbayan, in view of the fact that the statement of Rajnath Singh had been recorded at 1 A.M. i.e. earlier in point of time it was treated as the Fardbayan of the case. P.W.2 reiterated his said version in court. Therein, as mentioned above, he clearly stated that he regained consciousness at 5 A.M. when his statement was recorded by the police. 14. The significance of evidence of P.W.2 is that the remained unconscious throughout the night and thus the Fardbayan version of the informant that he learnt about the names of miscreants from him cannot be believed. Indeed, reference to the injuries sustained by P.W.2 lends credence to his version that he remained unconscious in whole of the night. P.W.7, who had examined his injuries at 3.40 A.M. on 30.4.84, inter alia, found, (i) One fire arm injury with multiple small pellets over the, left side of the lower part of the chest with bleeding and burnt surface about 1/2 in diameter, (ii) One burnt injury about 2" in diameter just above injury no. (i) on the left side of the chest, and (iii) One ecchymosis 1 x 1/2 on the right side of the chest. 15. If the informant did not learn about the assailants from his father Dukhan Singh as claimed by him in the Fardbayan, a doubt would naturally arise as to from whom he learnt. Why at all he ascribed his knowledge about names of assailants to his father is difficult to comprehend. It is to be kept in mind that he conveniently omitted that part of his case at the stage of evidence in court. In any view, this creates doubt the veracity of the informant's version and his bonafide. 16. Now I shall take up the evidence of P.W.4 Hare, Krishna Singh. He, if I may say so, is the star witness of prosecution because he along claims to have seen the killing of the deceased. He stated in his evidence that he was sleeping with his father though on a different cot in the same room in the night of occurrence. He woke up on hearing the sound of gun fire and hid himself beneath the cot. 10-15 persons came inside the room. Appellant Parma Ram fired at his father. He stated in his evidence that he was sleeping with his father though on a different cot in the same room in the night of occurrence. He woke up on hearing the sound of gun fire and hid himself beneath the cot. 10-15 persons came inside the room. Appellant Parma Ram fired at his father. His father tried to flee away when Parma Ram pushed and felled him on the cot. Thereafter appellants Janeshwar Ram, Krishna Ram and Lakhan Ram caught hold of him and Dharamdeo Ram cut his neck. His father died instantly. He stated that he saw the assailants in the light of their torch. 17. The salient feature, of the evidence of P.W.4 is that according to him both shots were fired from the door of the Baithaka from a sitting position. Stated that at the time of firing, the nose of the gun was slightly downwards. He did not raise any alarm even after the incident nor he went to the Chaukidar (of the same case) whose house was situate just in front of the Baithaka, nor to the Palani where his uncle Dukhan Singh used to sleep, nor to his residential house to inform the family members including the mother about the incident. He simply kept standing in the Sahan outside the Baithaka. Another significant aspect of the evidence of P.W.4 is that after the incident, Ramnath Singh besides P.W.8 Bandhu Thakur, P.W.10 Ram Briksh Mistry and others had come there and he had disclosed the name of the assailants to them, Significantly, as seen above, in his evidence, the informant, Ramnath Singh did not disclose names of the assailants when he reached Deo Asthan where Dukhan Singh was lying Injured. As a matter of fact as seen above, as per the evidence of P.W. 9 and P.W.11, before coming to Dev Asthan, Ramnath had gone to the Baithaka i.e. the place of occurrence. Thus, thereof evidence that Ramnath had gone to the place of occurrence. If he had gone there, soon after the occurrence, and talked to P.W.4 who allegedly disclosed the names of the assailants, it is not. ungerstandable that he (Ramnath Singh) would not disclose the names when he reached Dev Asthan. As per the evidence of the informant, he simply stated that the uncle had been shot at and his neck had been cut. ungerstandable that he (Ramnath Singh) would not disclose the names when he reached Dev Asthan. As per the evidence of the informant, he simply stated that the uncle had been shot at and his neck had been cut. The witnesses, as seen above, are closely related to, each other and it is inconceivable that if P.W.4 had, in fact, seen the occurrence and identified the assailants, he would not disclose their names, and if he has really disclosed the names as claimed by him, Ramnath Singh, his cousin and nephew of the deceased and son of the injured, would not divulge the names at the first opportunity. It may again be stated at the cost of repetition that independent witnesses who had reached the place of occurrence immediately after the incident i.e. P.W.8 and P.W.10 either turned hostile or simply tendered. 18. As a matter of fact, according to P.W.11 the informant too had gone to the place of occurrence before going to police station where he talked with Ramnath and Hare Krishna Singh. It is relevant to mention here that P.W. 4 in his evidence vide paras 18 and 19 stated that neither he went to see injured Dukhan Singh at Dev Asthan nor Rajnath Singh the informant had come to the place of occurrence which, if it were true would be highly unnatural conduct on their part In para 23 P.W.4 stated that Rajnath Singh had told him that Dukhan Singh too had been injured. 19. P.W.4 Hare Krishna Singh described the dimension of the room in which he and the deceased were sleeping as 24ft. x 10ft. They were sleeping on different costs. The cot on which his father was sleeping was not facing the door. His head was towards the west. The door of the room was towards south of the room. If the cot on which the deceased was sleeping was not in front of the door, the story that shots were fired from the door point, hitting the target, becomes doubtful. As per the evidence of P.W.11 Hari shankar Singh the room was completely dark when he reached there so much so that he had to borrow torch from a neighbour Rup Narain Bhagat. P.W. 4 claimed to have identified the appellants in the light of their own torch. As per the evidence of P.W.11 Hari shankar Singh the room was completely dark when he reached there so much so that he had to borrow torch from a neighbour Rup Narain Bhagat. P.W. 4 claimed to have identified the appellants in the light of their own torch. In torchlight when there is complete darkness around, it may not be possible to identify the person carrying the torch. Even if it is assumed for a moment that the light was sufficient, and considering that the appellants were known from before, P.W.4 could identify them in the light of their own torch, it is doubtful that he could observe the details of the occurrence in the manner as described by him. It is relevant to mention here that injuries were found on the buttock of the deceased. If, as alleged, he had been felled on the cot by the appellants and then shot at, while the deceased was lying in a prostrate condition the shots could not have hit his buttock, and that too from the door point which was not straight to the cot. P.W.4 gave a vivid description as to who fired from the gun and who caught hold of the deceased and who cut his neck. A Description of this kind could be possible only of light was sufficient. But as per P.W.11 it was complete dark. This apart, the conduct of P.W. 4 in not raising alarm for help including from the Chaukidar whose house was just In front, or other villagers is not understandable. It is also not understandable that he would not rush towards his residential house which was not far away, to inform the family members about the occurrence. 20. In paragraph 24 of his evidence P.W.4 admitted that he did not disclose the names of the appellants to the Dy. S.P. in the morning, and though he claimed to have disclosed the names to the Investigating Officer, the Investigating officer, P.W.2, in paragraph 48 of his evidence denied that he had disclosed the names to him. In the facts and circumstance, I have grave doubts that P.W.4 was present in the room and saw the occurrence. S.P. in the morning, and though he claimed to have disclosed the names to the Investigating Officer, the Investigating officer, P.W.2, in paragraph 48 of his evidence denied that he had disclosed the names to him. In the facts and circumstance, I have grave doubts that P.W.4 was present in the room and saw the occurrence. It is relevant to mention here that as per para 14 of the case diary the Informant stated at the time of inspection of the p.o. that Ramnath Singh slept with the deceased Mahabir Singh in the room in the night of occurrence. 21. As a matter of fact, non-examination of Ramnath Singh created a serious void in the prosecution case. Ramnath Singh had been named by almost every witness as the person who reached the place of occurrence after the incident and talked to his cousin and then reached Dev Asthan where Dukhan Singh was lying in injured condition and narrated the incident. As seen above, the informant did not say in his evidence that Ramnath Singh had disclosed names of the assailants. Even though P.W.9 stated to the contrary. There is also evidence that the witnesses talked amongst themselves at the De Asthan as well as the place of occurrence before the informant set out for the police station along with the injured. If Ramnath Singh had been examined, perhaps, he could have thrown some light. I seen no reason why he has been withheld from the court. He is the own brother of the informant and son of the injured and nephew of the deceased. The witnesses, except P.W.9, who immediately reached the place of occurrence or Dev Asthan did not support the prosecution case. Either they were declared hostile, such as P.Ws. 5 and 8, or tendered, such as P.W.10 or examined as formal witness, such as P.W.6. in the circumstances, it would be difficult to accept the prosecution case, as narrated by the informant and other witnesses. There are serious discrepancies in the evidence of the witnesses, the benefit of which must go to the accused. 22. In the facts and circumstances, I am constrained to hold that the prosecution has failed to prove its case beyond all reasonable doubts and, therefore, the appellants are entitled to acquittal. 23. In the result, the appeals are allowed the conviction and sentences awarded to the appellants are set aside. 22. In the facts and circumstances, I am constrained to hold that the prosecution has failed to prove its case beyond all reasonable doubts and, therefore, the appellants are entitled to acquittal. 23. In the result, the appeals are allowed the conviction and sentences awarded to the appellants are set aside. The appellants are on bail. They are discharged from the liability of their bail bonds.