Judgment Chandra Mohan Prasad, J. 1. The appeals are against the judgment dated 26.8.1998 of the Ist Additional Sessions Judge, Munger passed in Session Trial Judge No. 411 of 1995. 2. Including the appellants originally there were 58 accused persons before the trial Court but six of them were acquitted and conviction was passed against the 52 accused who appealed under the above different appeals. During the pendency of the appeals four appellants namely (1) Gopi Yadav, (2) Garib Ram (3) Maheswar Ram and (4) Chethru Ram died hence the respective appeals with regard to them abated and this judgment relates to the remaining 48 appellants only. 3. The appellant Prakash Yadav has been convicted under Section 302 and 302 read with Section 149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life under each count. He has also been convicted under Section 436, 147 of the Indian Penal Code and 27 of the Arms Act and respectively sentenced to undergo rigorous imprisonment for ten years, one year and three years under the three counts. 4. Each of the two appellants Umesh Ram and Ramautar Ram has been convicted under Section 302, 302 read with 149, 147 and 436 of the Indian Penal Code and under Section 3 of the Explosive Sub-stance Act and respectively sentenced to undergo rigorous imprisonment for life, rigorous imprisonment for life, rigorous imprisonment for one year, rigorous imprisonment for ten years and rigorous imprisonment for ten years under the five counts. 5. The appellant Yogendra Ram has been convicted under Sections 302, 302 read with 149, 147, of the Indian Penal Code and 27 of the Arms Act and respectively sentenced to undergo rigorous imprisonment for life, rigorous imprisonment for life, rigorous imprisonment for one year and rigorous imprisonment for three years. 6. The appellant Haricharan Ram has been convicted under Section 302 read with Sections 149, 147 and 436 of the Indian Penal Code and respectively sentenced to undergo rigorous imprisonment for life, rigorous imprisonment for one year and rigorous imprisonment for ten years. 7. The appellant Dukhi Yadav, has been convicted under Section 302 read with Sections 149, 147, 436 of the Indian Penal Code and respectively sentenced to undergo rigorous imprisonment for life, rigorous imprisonment for one year and rigorous imprisonment fro ten years. 8. 7. The appellant Dukhi Yadav, has been convicted under Section 302 read with Sections 149, 147, 436 of the Indian Penal Code and respectively sentenced to undergo rigorous imprisonment for life, rigorous imprisonment for one year and rigorous imprisonment fro ten years. 8. Each of the remaining 42 appellants namely: (1) Durgi Yadav, (2) Parmeshwar Yadav, (3) Kara Yadav, (4) Kanchan Yadav, (5) Funni Yadav, (6) Lampu Ram, (7) Ravi @ Ravindra Ram, (8) Sttaram Yadav @ Ghogho, (9) Basdo @ Ram Bilas Ram, (10) Chando Ram, (11) Dilip Ram, (12) Yatri Ram, (13) Pramod @ Burho Ram, (14) Shailu Mahto, (15) Shankar Yadav, (16) Bothan Yadav, (17) Ramlal Yadav, (18) Chuho Yadav, (19) Brahmdeo Yadav, (2) Boudhu Yadav, (21) Rajo Yadav, (22) Rito Yadav, (23) Bhago Yadav, (24) Lakshmi Yadav, (25) Futahru Ram, (26) Pameshwar Ram, (27) Chuho Ram, (28) Rito Ram, (29) Ragho Yadav, (30) Banarsi Mahto, (31) Jugeshwar Mahto, (32) Rajeshwari Ram, (33) Satyendra Ram, (34) Arun Ram, (35) Kailu Ram, (36) Raghu Ram, (37) Karu Ram, (38) Anik Ram, (39) Munna Ram, (40) Dohi Yadav, (41) Batho Mahto and (42) Oppy Ram has been convicted under Section 302 read with Sections 149 and 147 of the Indian Penal Code and respectively sentenced to undergo rigorous imprisonment for life and rigorous imprisonment for one year. All the sentences awarded to each of the appellants have been ordered to run concurrently. 9. The prosecution case as revealed in the fardbeyan (Ext. 4) of the informant Jagdish Sao (PW 5) recorded by Sub-Inspector of Police R.K. Karn on 29.3.1994 at 11.15 a.m. near a pipal tree close to the house of the informant is that on 28.3.1994 at about 8 a.m. Satyendra Kumar and Dharmendra Kumar had put mud on informants bhawo (younger brothers wife) and had told her obscene words regarding sex. Seeing this, informants elder brother Company Sao (deceased) chided them and asked them to go away else he would set them right. Thereafter, Satyendra and Dharmendra went away and they held a meeting of their party in the village. Within two hours Satyendras father Chathru Ram, Haricharan Ram, Musahru Ram, Ram Prakash Yadav, Banarasi Mahto, Yogendra Ram, Arun, Ram Shankar Yadav and Bhothan Yadav all carrying lathi came to the informants dorwaja and gave abuses and threatenlngs. Thereafter, Satyendra and Dharmendra went away and they held a meeting of their party in the village. Within two hours Satyendras father Chathru Ram, Haricharan Ram, Musahru Ram, Ram Prakash Yadav, Banarasi Mahto, Yogendra Ram, Arun, Ram Shankar Yadav and Bhothan Yadav all carrying lathi came to the informants dorwaja and gave abuses and threatenlngs. The informant and his family members protested whereupon Prakash Yadav exploded bomb due to which one calf and mother of one Ghutar Yadav were injured by the bomb splinters. Umesh Ram and Arun Ram fired shots in sky and they all returned after two hours. But they again came after one hour and after remaining for few hours they went away. 10. As to the relevant occurrence of this case the informant alleged that on 29.3.1994 at about 7 a.m. the appellants and others with weapon like rifle, gun, pistol, lathi as well as match as specially assigned to each in the fardbeyan, forming an unlawful assembly came to the informant and out of those persons Umesh, Ramautar Yadav, Prakash Yadav, Dukhi Yadav, and Haricharan Ram set the house of the informant and Company Sah (deceased) on fire. Accused Prakash Yadav captured Shivdani Sao (deceased) and took him to field and shot him there. Appellant Umesh Ram and Ramautar Ram assaulted the deceased Krishna Sao by fire shot and bomb and thereby killed him. Company Sah (deceased) was injured by Yogendra Ram by means of fire shot and the informant alleged at the time of lodging fardbeyan that after assault Company Sah (deceased) was traceless. Chuho Ram, Ram Lal Yadav and others had dragged Krishna Sah out of his house with intention to kill and took him away. His (informants) and deceased Company Sahs houses were completely burnt in the fire. The accused persons also assaulted and seriously injured Anandi Sao. The informant claimed that Ayodhaya Sah. Dilip Kumar, PW 2 Raj Kumar Sao, Shankar Sao, Vijay Sao, Ramchandra Sah, Sabitri Devi (PW 1) and Sheela Devi (PW 3) and others had seen the occurrence. 11. As many as 13 witnesses were examined by the prosecution. The accused persons also assaulted and seriously injured Anandi Sao. The informant claimed that Ayodhaya Sah. Dilip Kumar, PW 2 Raj Kumar Sao, Shankar Sao, Vijay Sao, Ramchandra Sah, Sabitri Devi (PW 1) and Sheela Devi (PW 3) and others had seen the occurrence. 11. As many as 13 witnesses were examined by the prosecution. The defence examined one defence witness Kaushal Ram who simply deposed that on 29.3.1994 at about 5 a.m. he had gone to village Kharyari and he had seen that the dead bodies of Shivdani Sah and Krishna Sah were lying in Bahiyar (open field) at a distance of 15-20 minutes walking distance from the village. He further deposed that Jagdish Sah, the informant had met and he had not disclosed as to who had killed these two deceased but he told him that there was not trace of Company Sao (deceased). 12. Out of the prosecution witnesses it is apt to discuss the evidence of the Investigating Officer and the doctor first because their evidence would be required to be referred to while discussing the evidence of the witnesses for its appreciation. 13. PW7 Dr. Rakesh Kumar Sinha had conducted post mortem examination on the dead body of Shivdani Sah on 30.3.1994. He deposed that on examination he found the following ante mortem injuries (i) Wound of entrance 1/2" lacerated circular would x brain cavity deep on the right side of the face 1/2" medial to the right tragus of the ear. On dissection-fracture of the right tempero parietal bone. On opening of the skull brain matter was found lacerated. One bullet was lodged in the side of the temporal bone. Blood and blood clot present. (ii) Wound of entrance 1/2" lacerated circular would x chest cavity deep 1" lateral to the left nipple, margins of the wound were inverted. On dissection Thorasic cavity was filled with blood and blood clots. Both the lungs and heart were pierced and lacerated through and through. One bullet found lodged in the soft tissues of the right scapular region. Fracture of left 5th rib found beneath the injury. Two bullets were taken out and in a sealed cover were handed over to the police. In the opinion of the doctor death was caused due to shock and haemor- rahage as a result of above injuries which were caused by fire arms such as pistol. Fracture of left 5th rib found beneath the injury. Two bullets were taken out and in a sealed cover were handed over to the police. In the opinion of the doctor death was caused due to shock and haemor- rahage as a result of above injuries which were caused by fire arms such as pistol. Time elapsed since death was within 24 hours. The above injuries were sufficient to cause death of a person in ordinary course of nature. The doctor further deposed that he had prepared post mortem report in his pen and signature. The post mortem report has been marked as Ext. 7. At paragraph 5 of cross-examination he deposed that he did not find any blackening or charring around the wound which suggest that shot had been fired from a long distance. He further deposed at paragraph 8 that victim might have fallen down after being hit by bullet and he might have died in stantaneously. 14. PW 8 Dr. Prabhakar Singh had held post mortem examination on 30-3.1994 at 2 p.m. on the dead body of deceased Company Sao and found the following ante-mortem injuries : The body presented was in pugilistic state and whole body was charred. Upper limb of both sides were absent at the level of shoulder. The margins were charred. There was gapping hole in skull and brain substance was absent. In most places of body the skin subcutaneous tissues and muscles were absent. On dissectionAll internal viscera were pale. Heart contained blood clot. The lung was shrivelled contained shoot. Trachea and bronchi contained blood clot and shoot. The stomach was empty. Urinary bladder was empty. The doctor opined that death was probably due to burn leading to shock and asphyxia. The elapsed since death was about 36 hours. He further deposed at paragraph 2 that during the post mortem examination it was difficult to get any sign of gun shot injury in the condition of the dead body which was brought before him for examination. He proved the post mortem report in his pen and signature which was marked as Ext.5/1. In cross-examination at paragraph 4 he deposed that the degree of burn might be more than 70%. Both the arms of the dead body were found absent. The face was fully burnt and it was not identifiable. He proved the post mortem report in his pen and signature which was marked as Ext.5/1. In cross-examination at paragraph 4 he deposed that the degree of burn might be more than 70%. Both the arms of the dead body were found absent. The face was fully burnt and it was not identifiable. He further deposed that there was likelihood of bursting skull due to excessive heat causing gap. He also deposed at paragraph 6 that it was difficult to say as to the gapping hole found was created due to bursting of skull or was caused in other manners. 15. From the post mortem examination it appears that the doctor had found that the lungs was shrivelled containing shoot and trachea and bronchi contained blood clot and shoot. These findings suggest that the deceased had inhaled smoke before his death which caused deposition of shoot in lungs, trachea and bronchi. This is further suggestive of the fact that the deceased had died or breathed his last after he had been in the flames and smokes. This fact would be relevant while discussing the evidence of deceaseds wife (Meena Devi, PW 6, Para 1) that the accused persons had set her house on fire and they had thrown Company Sao (deceased) and one gun into the fire. 16. PW 9 Dr. Yugal Kishore Purve has been examined as formal witness who proved the writings and signature of Dr. H.N. Mandal on the post mortem examination report relating to deceased Krishna Sah and the post mortem examination report has been marked as Ext. 2. Subsequently Dr. H.N. Mandal who had done the autopsy was examined as PW 13. He (PW 13) deposed that on 30.3.1994 at 9 a.m. he held post mortem examination on the dead body of deceased Krishna Sao and found the following ante mortem injuries on the dead body : (i) Explosive wound involving postero lateral aspect of right upper arm axillary area as well as scapular region and 3" below scapular margin. Margins of the wound irregular and lacerated. Most of the soft tissues and skin blown off. (ii) On dissection fracture of Rt. humrus on its middle portion multiple fracture of the scapular. Fracture of ribs from 2nd to 7th postero lateral aspect right side. Rt. lung lacerated and torn. Chest cavity was full of blood and blood clots. Liver lacerated on posterior aspect. Most of the soft tissues and skin blown off. (ii) On dissection fracture of Rt. humrus on its middle portion multiple fracture of the scapular. Fracture of ribs from 2nd to 7th postero lateral aspect right side. Rt. lung lacerated and torn. Chest cavity was full of blood and blood clots. Liver lacerated on posterior aspect. (iii) Death was due to haemorrhage and shock caused by above injuries, caused by explosive substance. (iv) Time elapsed since death was within 24 hours. He further deposed that he had prepared the post-mortem examination report in carbon process in his writing and signature. He identified the previously marked Ext. 5/2 stating that it was the post mortem examination report prepared by him. 17. PW 12 Ramakant Karn Sub-Inspector of Police is the Investigation Officer of this case. He deposed that on 29.3.1994 while he was officer-in-charge of Halsi Polic Station, Sheela Devi (PW 3) came to him at 10 a.m. with a petition. On the basis of that petition he recorded station diary entry No. 484 dated 29.3.1994 and at 10.30 a.m. he proceeded for the place of occurrence and reached there at 11.15 a.m. in village Khriyari. On reaching there he recorded the fardbeyan (Ext. 4) of the informant Jagdish Sao and proceeded with the investigation of the case and prepared the inquest report (Ext. 3 and 3/1) of the deceased Krishna Sao and Shivdani Sao. At paragraph 2 he described the place of occurrence saying that it was the house of informant Jagdish Sao and deceased Company Sao and in the front portion of the house there existed a grocery shop. He further deposed that the house of deceased Company Sao situated adjacent north of the house of informant Jagdish Sao and it was burning in flames. He also mentioned that in the room in the northern portion of the house there were two kotha (grainary) made of mud which were seen burnt and that the articles in the southern room were also seen burnt. He further deposed that he had learnt at that place that in one of the two rooms the dead body of Company Sao (deceased) was burning. He further deposed that he had learnt at that place that in one of the two rooms the dead body of Company Sao (deceased) was burning. He also deposed that at a distance of 500-600 yards of informants house of dead body of deceased Krishna Sao was found lying in the field of Lakhan Yadav and the dead body situated 3 ft from southern ridge on 10-12 ft from eastern ridge of the field. He also found some blood fallen there. At a distance of about 5ft west north of the dead body one live bomb was also found. The Investigation Officer further deposed that adjacent west of the field of Lakhan Yadav there was the field of Anik Ram in which onion was found sown. In that onion field situating 25ft from northern ridge and 25 ft from eastern ridge the dead body of deceased Shivdani Sao was lying. 18. At paragraph 3 of the evidence the Investigating Officer deposed that on the next day after existinguishing the fire the dead body of deceased Company Sao was found lying close to the western wall in the southern room of the house. He further deposed that the body was half burnt and the informant and witnesses had identified the dead body being that of Company Sao (deceased). He prepared the inquest report (Ext. 1) of the. dead body through carbon process. At paragraph 4 he deposed that he had seized ash, pieces of halfburnt wood, blood soaked soil and the thread wrapped bomb like material and had prepared seizure list (Ext. 10 and 10/1). At paragraph 5 he deposed that he recorded the statement of witnesses and annexed the post-mortem examination report received in this case in the case diary. At paragraph 6 he deposed that he had obtained sanction report from the District Magistrate. The sanction report is the sanction order with respect to the prosecution for the offences under the Explosive Substance Act. 19. At paragraph 8 of the evidence the I.O. deposed that he had perused the criminal record of deceased Company Sao and he had found that the deceased Company Sao was a charge sheeted accused in Halsi Police Station Case No. 17 of 1981 and 10 of 1987 under Section 302 of the Indian Penal Code. 19. At paragraph 8 of the evidence the I.O. deposed that he had perused the criminal record of deceased Company Sao and he had found that the deceased Company Sao was a charge sheeted accused in Halsi Police Station Case No. 17 of 1981 and 10 of 1987 under Section 302 of the Indian Penal Code. In this context the learned counsel for the appellant argued that deceased Company Sao was a criminal and he was killed by a group of criminals. But this was mere argument on the basis of the said charge-sheet against the deceased. It was not shown that deceased Company Sao was ever convicted in any case nor there is any other reliable material brought on record to show that deceased Company Sao was killed by some one else in a manner otherwise than as stated by the prosecution witnesses. 20. At paragraph 9 of the Investigating Officer identified the petition (Ext. 8) which was produced by PW 3 before him and he said that he had gone to the P.O. for verification of the matter. The learned counsel for the appellant argued that the petition (Ext. 8) should have been treated as the First Information Report of the case. But what is all stated in the petition is that Ragho. Dukhi, Umesh, and Chethru with 40-50 youngesters had surrounded their houses and they might do anything. Thus any cognizable offence was not disclosed in the petition. In fact the occurrence had not taken place when the PW 3 had proceeded from the place of occurrence with that petition. When any specific cognizable offence was not disclosed and only apprehension of such offence was expressed the Investigating Officer was very much right in the treating the petition as First Information Report. In the case of Binay Kumar Singh V/s. The State of Bihar, (1997) 1 SCC 283 : 1997 (1) East Cr C 871 (SC), the Apex Court has held that a cryptic information from some body who does not disclosed any authentic knowledge about the commission of cognizance offence would not be sufficient to register a First Information Report. Thus in view of what has been held as above by the Supreme Court the petition was not sufficient for the Investigating Officer for registering the First Information Report on its basis. Thus in view of what has been held as above by the Supreme Court the petition was not sufficient for the Investigating Officer for registering the First Information Report on its basis. So rightly the Investigating Officer proceeded for verifying the matter at the place of occurrence and he recorded the fardbeyan of the informant there. 21. At paragraphs 16, 17, 19 of his evidence the Investigating Officer stated about the contradictions in the evidence of PW 1 Sabitri Devi and PW 2 Dilip Kumar which will be dealt with in detail while dealing with the evidence of those witnesses. 22. PW 10 Ramroop Yadav, PW 11 Shashi Bhushan Singh are formal witnesses who have proved the sanction orders (Ext. 6) of the District Magistrate for prosecution of the accused persons under the provisions of Explosive Substance Act and the petition (Ext. 8) which was produced by PW 3 at the Police Station. 23. The informant Jagdish Sao (PW 5) deposed in paragraph 1 of his evidence about the occurrence which took place on the date of Holi festival when Dharmendra and Satyendra had been chided by Company Sao (deceased) due to their having said indecent words to Malo Devi and, thereafter, those persons coming again to his house with their associates as named by him (PW 5) in his evidence and exploding bomb there. As to the occurrence which took placed on the next day and which Is relevant to this case the informant deposed that it was about 6 a.m. when the 43 accused namely (1) Prakash Yadav, (2) Ragho Yadav, (3) Dukhi Yadav, (4) Chethru Ram (5) Haricharan Ram (6) Futharu Ram (7) Lakshmi Ram, (8) Sanjay Ram, (9) Munna Ram, (10) Jugeshwar Mahto, (11) Banarsi Mahto, (12) Umesh Ram, (13) Lampu Ram, (14) Ravi Ram, (l5) Rajeshwari Ram, (16) Jogendra Ram, i!7) Satyendra Ram, (18) Dharmendra Ram, (19) Raghu Ram, (20) Karu Ram, (21) Durgi Yadav, (22) Funni Yadav, (23) Kara Yadav, (24) Bhothan Yadav, (25) Shankar Yadav, (26) Shailu Mahto, (27) Shaila Mahto son of Botal Mahto, (28) Sitaram Ram, (29) Garib Ram, (30) Bano Ram, (31) Chuha Ram, (32) Parmeshwar Ram, (33) Chando Ram, (34)Dobhi Yadav, (35) Rito Ram, (36) Yatri Ram, (37) Pramod Ram, (38) Brahamdeo Yadav. (39) Baudhu Yadav, (40) Rajo Yadav, (41) Maheshwar Ram (42) Arun Ram, and (43) Anik Ram and others whose names he could not remember variously armed with rifle, gun, pistol and bomb surrounded his house. 24. At paragraph 3 of his evidence the informant (PW 3) deposed that appellant Yogendra Ram shot the deceased Company Sao and the accused persons set fire to his (deceased Company Saos) house and that they threw the dead body of Company Sao in fire. He further deposed in paragraph 5 that the accused persons dragged deceased Shivdani Sao and Krishna Sao into the field of Lakhan Yadav and appellant Umesh Ram and Ramautar Yadav killed the deceased Krishna Sao with fire shot and bomb. At paragraph 8 of his evidence the informant identified some of the accused who were present in dock in Court and he claimed to identify others who were represented through lawyers. 25. At paragraph 9 of his evidence the informant (PW 5) deposed that Daroga had recovered a pipe gun from the burnt house of Company Yadav (Yadav is mistaken for Sao). He also deposed that the Daroga R.K. Karn had prepared a seizure list for the seizure of the gun and he (PW5) had signed the seizure list as witness. The signature has been marked as Ex. 2. In this context it is relevant to mention here that Menna Devi (PW 6) the wife of deceased Company deposed at paragraph 1 of her evidence that the accused had thrown the body of Company Sao into fire and they had also thrown one gun in the fire. The informant deposed in paragraph 10 that Daroga R.K. Karn had recovered the materials of the exploded bomb from the field of Lakhan Yadav and a seizure list had also been prepared and he had signed the seizure list. The seizure list is Ext. 2/1. At paragraphs 11 and 12 the informant further deposed that Daroga R.K. Karn had also prepared the inquest report of the dead body of deceased Krishna Sao and Shivdani Sao through carbon process. The inquest reports have been respectively marked Ext. 3 and 3/1. At paragraph 13 of his evidence the informant stated the name of accused Dilip Ram, Chuho Yadav, Kanchan Yadav, Parmeshwar Yadav and Oppy Ram saying that earlier he had forgotten to state the names of these accused persons. The inquest reports have been respectively marked Ext. 3 and 3/1. At paragraph 13 of his evidence the informant stated the name of accused Dilip Ram, Chuho Yadav, Kanchan Yadav, Parmeshwar Yadav and Oppy Ram saying that earlier he had forgotten to state the names of these accused persons. The informant further deposed that Daroga R.K. Karn had recorded his fardbeyan which was read over to him and then he had signed the same. The fardbeyan has been marked Ext. 4. At para 25 of his evidence the informant deposed that the occurrence had continued for two to two and half hours and it had completed at 10-11 a.m. Firstly the accused had committed loot and then arson and thereafter they had committed murder. He also deposed that had the incident of putting mud on Malo Devi not taken place the occurrence would not have happened. At paragraph 37 he deposed that the occurrence of murder had taken place 2-4 minutes before the arrival of the police. 26. At paragraph 43 the informant deposed that the house of deceased Company Sao and burnt in flames for 4-5 hours and nobody had tried to extinguish the fire. At paragraph 49 he deposed that in the north and south sides of his house there was mud boundary wall of the height of 3 ft and towards east there was road. He further deposed that when the accused were coming he had hidden himself in a house in Mushari Tola at a distance of 10-12 yards from this house and at para 39-40 he deposed that he had hidden himself behind the Tati there in the house of Chatrapati. This shows that the witness had hidden himself in a place behind the Tati very close to his house. It was argued that when he had hidden himself he could not have seen the occurrence but considering the situation of his house which had a boundary of 3 ft in two sides and road in third side it was possible for this witness to have seen the occurrence in and around his house from close distance where he had hidden himself. 27. At paragraph 51 of his evidence the informant deposed that the chaukidar of the village had not come to the place of occurrence because the accused persons had, threatened him not to come there. 27. At paragraph 51 of his evidence the informant deposed that the chaukidar of the village had not come to the place of occurrence because the accused persons had, threatened him not to come there. At paragraph 44 of his evidence the informant denied the defence suggestion that accused Krishna Sao and Company Sao had formed a gang of criminals and that the criminals had killed them at a place distance from the village. The defence has not brought any cogent evidence to substantiate the defence suggestion which has been denied by the informant. The attention of the informant has been drawn at para 37 of his evidence towards his previous statement made before the Investigating Officer that there was no trace of Company Sao to which he denied saying that he had not made such statement. The Investigating Officer (PW 12 para 22) deposed that the informant had stated before him that there was no trace of Company Sao. Thus in view of the previous statement of the informant as proved by the Investigating Officer the credit of the informants evidence is impeached on the point of his claim that he had seen the throwing of the body of Company Sao in fire. Otherwise the evidence of informant on all the material particulars of the case is trustworthy and reliable. 28. PW 1 Sabitri Devi is the wife of deceased Shivdani Sao. She deposed at paragraph (sic) that on 29.3.1994 at about 7 a.m. while he she was at her house she saw that 62 persons surrounded the house of Company Sao (deceased). Otherwise the evidence of informant on all the material particulars of the case is trustworthy and reliable. 28. PW 1 Sabitri Devi is the wife of deceased Shivdani Sao. She deposed at paragraph (sic) that on 29.3.1994 at about 7 a.m. while he she was at her house she saw that 62 persons surrounded the house of Company Sao (deceased). Out of those persons she names 55 persons namely : (1) Rajeshwar Ram, (2) Umesh Ram, (3) Nembu Ram, (4) Jogendra Ram, (5) Ravi Ram, (6) Arun Ram, (7) Maheshwar Ram (8) Kailash Ram (9) Satyendra Ram, (10) Oppy Ram, (11) Gayatri Ram, (12) Lalit Ram, (13) Pramod Ram, (14) Ghogho, (15) Garib, (16) Parmeshwar, (17) Bando, (18) Chuho, (19) Chando, (20) Munna, (21) Sanjay, (22) Sulo, (23) Haricharan, (24) Chethru, (25) Lakshmi, (26) Futahru, (27) Karu, (28) Anik, (29) Raghu, (30) Rito Ram, (31) Chuho Yadav, (32) Ramautar Yadav, (33) Shankar Yadav, (34) Prakash Yadav, (35) Dukhi Yadav, (36) Ragho Yadav, (37) Rang Lal Yadav, (38) Sahdeo Yadav, (39) Kanchan Yadav, (40) Prameshwar Yadav, (41) Gopi Yadva (42) Brahamdeo Yadav, (43) Rajo Yadav, (44) Baudhu Yadav, (45) Dobhi Yadav, (46) Rito Yadav (47) Bhago Yadav, (48) Banarsi Mahto, (49) Jugeshwar Mahto, (50) Kailu Mahto, (51) Batho Mahto, (52) Durgi Yadav, (53) Kara Yadav, (54) Puni Yadav and (55) Bothan Yadav. She further deposed that the accused were armed with bomb, pistol and lathi. 29. She (PW 1) deposed in paragraph 2 that Yogendra Ram (appellant) shot Company Sao and thereby killed him and 100 mounds of grains was looted and the house of Company Sao (deceased) was set on fire and that Company Sao also burnt in the house. At paragraph 3 she deposed that Umesh Ram, Yogendra Ram, Ramautar Yadav, Prakash Yadav, Dukhi Yadav and Haricharan Ram set fire to the house of Company Sao. At paragraph 4 she deposed that Jugeshwar Mahto, Banarsi Mahto, Bhotan Yadav, Prakash Yadav and Chethru Ram caught hold of her husband Shivdani (deceased) and took him away. She also deposed that Krishna Sao (deceased) son of Chamari Sao had also been taken away and that Prakash Yadav had shot her husband Shivdani Sao (deceased) and Krishna Sao (deceased) had been killed by Umesh Ram and Ramautar Yadav by means of bomb. 30. She also deposed that Krishna Sao (deceased) son of Chamari Sao had also been taken away and that Prakash Yadav had shot her husband Shivdani Sao (deceased) and Krishna Sao (deceased) had been killed by Umesh Ram and Ramautar Yadav by means of bomb. 30. At para six of her evidence PW 1 stated about the cause of occurrence stating that Dharmendra Ram and Satyendra Ram had put mud on her Gotani and had also misbehaved with her due to which deceased Company Sao had chided them as a result of which people of Kashar, Koeri and Yadav casts had a meeting and thereby they had also surrounded the house. At paragraph 8 she deposed that Sheela Devi (PW 3) is the wife of deceased Krishna Sao and that on 29.3.1994 her husband Shivdani Sao (deceased) had sent her (PW 3) with a petition (Ext. 8) on 29.3.1994 to the police station. The petition had been written by Shivdani Sao (deceased). She further deposed that Sheela Devi (PW 3) had come hack at about 11 a.m. and Daregaji had also come but the occurrence had already taken place by that time. At paragraph 9 she deposed that her family was on one side and the people of all other caste of the village were on the other side. During argument the learned counsel for the appellants argued that in this case no independent witness of the village has been examined by the prosecution and that the witnesses examined are the relatives and the family members of the informant. In this context the evidence of this witness is that the people of all other castes of the village were on the other side meaning thereby against the family of the informant. Therefore, it cannot be expected that the people of the village would come forward to support the informant. 31 At paragraph 9 the PW 1 further deposed that there was no door shutter in her house. At paragraph 10 she deposed that the house of deceased Company Sao situated just by the side of house and that at the time of occurrence the door of his house was open. 31 At paragraph 9 the PW 1 further deposed that there was no door shutter in her house. At paragraph 10 she deposed that the house of deceased Company Sao situated just by the side of house and that at the time of occurrence the door of his house was open. Thus in this situation when the door of the house of deceased Company Sao was open and there was no door shutter in her house it was possible for this witness to have seen from her house the occurrence of shooting and arson in the house of deceased Company Sao which was situated next to her house. 32. At paragraph 9 of her evidence the PW 1 deposed that the house of Pachkauri Tanti situated close west to the house of the informant and deceased Company Sao. At paragraph 13 she deposed that towards north of the house of Pachkauri the house of Jagannath Ram and thereafter the house of Kanhai Ram and Ramesh Ram situated and adjacent west of the house of Kanhai Ram the houses of people belonging to Yadav caste situated. Here it was argued by the appellants counsel that the people of these houses which situate close to the house of the informant and deceased Company Sao were the natural and proper witness but none of them have been examined by the prosecution. The learned Additional Public Prosecutor replied that it is apparent that the people whose houses situate close to the house of the informant and deceased Company Sao are people of different castes and the PW 1 has already deposed at paragraph nine of her evidence that people of the other castes in the village were against her family hence under these circumstances those people did not support the informant. 33. At paragraph 15 of her evidence the PW 1 deposed that after the occurrence she had gone to see the dead body of her husband which was lying in a field at a distance of about 400 ft from her house. At paragraph 23 she further deposed that at about 11 a.m. police had gone to the place where the dead body was lying and that in her presence the police had sent the dead body and had prepared papers in that regard. At paragraph 23 she further deposed that at about 11 a.m. police had gone to the place where the dead body was lying and that in her presence the police had sent the dead body and had prepared papers in that regard. At paragraph 25 She (PW 1) deposed that she had seen with her eyes the occurrence of the killing of deceased Shivdani Sao and Krishna Sao and at that time she had kept herself hidden. 34. At paragraph 27 and 28 of the evidence of PW 1 the attention of this witness was drawn towards her evidence on the point of assault by the accused persons as given in Court and she was asked whether she had given such statement before the Investigating Officer or not, to which she replied that she had stated before the police that she had seen the occurrence from her house that Prakash Yadav had shot her husband Shivdani Sao (deceased) and Krishna Sao had been killed by Umesh Ram and Ramautar Yadav by means of bomb and that accused Yogendra Ram had shot Company Sao (deceased). The Investigating Officer (PW 12) at paragraph 16 deposed that the PW I had not stated before him that Yogendra Ram had shot Company Sao (deceased) and that PW 1 had also not stated before him that she had seen the occurrence of murder. In this context it has to be mentioned here that the case diary was perused. In paragraph 17 of the case diary PW 1 Sabitri Devi naming the accused persons has stated in detail about the occurrence and the role of different accused in the commission of offence. No doubt there are some slight variation in the narration of the occurrence when compared to the evidence as adduced in Court but whatever the omission or contradiction would have been that could be taken into account only if the statement before the Investigating Officer had been confronted to the witness (PW 1) and, thereafter, the statement had been proved by the evidence of the Investigating Officer. But the defence did not adopt this procedure and completely discarding the statement as given before the Investigating Officer, the learned counsel for the defence confronted some parts of the evidence as given by the witness in her examination in chief or cross-examination by way of asking whether she had stated those facts before the Investigating Officer or not and in reply she (PW 1) stated that she had given that evidence before the Investigating Officer. Subsequently when the Investigating Officer appeared for his evidence the defence counsel confronted him the evidence of this witness and he was asked whether such evidence was given before him or not to which the Investigating Officer replied that no such evidence was given before him. In this process the statement of the witness as recorded by the Investigating Officer was completely forgotten and on the basis of the denial of the Investigating Officer that such evidence was not given before him, the learned counsel for the appellant sought to impress that there was omission amounting to contradiction in the evidence of this witness (PW 1). Hence it was argued that the creditworthiness of the PW 1 on that point was impeachable. 35. No doubt omission if vital are contradictions but a question arises whether any omission as brought on record by the defence in the manner as above entitles the defence to impeach the credit of a witness or not. In this regard it appear that now a days in many cases it is seen that in order to bring on record contradictions of omissions amounting to contradictions some part of the evidence of the witness as adduced in Court is directly put to the witness and he is asked whether he stated the same before the Investigating Officer or not and when the witness replies in affirmative the portion of evidence is subsequently put before the Investigating Officer and his evidence that such witness had not stated the same before him is taken to prove omission or contradictions on record. While adopting this procedure the actual statement relating to that matter as recorded by the Investigating Officer is completely ignored and the same (statement as recorded in the case diary) is not used for confronting the witness and then proving that statement through the evidence of the Investigating Officer. While adopting this procedure the actual statement relating to that matter as recorded by the Investigating Officer is completely ignored and the same (statement as recorded in the case diary) is not used for confronting the witness and then proving that statement through the evidence of the Investigating Officer. And thus the denial by the Investigating Officer of the evidence as adduced by the witness in Court is sought to be used by the defence as contradictions. But I find that this is not the correct procedure and it cannot be approved under law for availing the defence benefit of impeaching the credit of a witness on any point. 36. In the case of Vinay Kumar Singh V/s. State of Bihar, 1997 (1) SCC 283 : 1997 (1) East Cr C 871 (SC), the Honble Supreme Court has held : "The credit of a witness can be impeached by proof of any statement which is inconsistent with any part of his evidence in Court. The principle is delineated in Section 155 (3) of the Evidence Act and it must be borne in mind when reading Section 145 which consists of two limbs. It is provided in the first limb of Section 145 that the witness may be cross-examined as to the previous statement made by him without such writing being shown to him. But the second limb provides that "if it is intended to contradict him by the writing his attention must before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him." There is thus a distinction between the two vivid limbs though subtle it may be. The first limb does not envisage impeaching the credit of a witness, but it merely enables the opposite party to cross-examine the witness with reference to the previous statement made by him. He may be that stage succeed in eliciting materials to his benefit through such cross-examination even without resorting to the procedure laid down in the second limb. But if the witness disowns having made any statement which is inconsistent with his present stand, his testimony in Court on that score could not be vitiated until the cross-examiner proceeds to comply with the procedure prescribed in the second limb of Section 145." 37. But if the witness disowns having made any statement which is inconsistent with his present stand, his testimony in Court on that score could not be vitiated until the cross-examiner proceeds to comply with the procedure prescribed in the second limb of Section 145." 37. Thus considering the principles of law as ennunciated by the Supreme Court in this regard it is evident that for bringing out contradictions on record in order to impeach the credit of a witness it is necessary that the witness is first confronted to his previously recorded statement on that matter and subsequently that statement is proved by the evidence of the Investigating Officer in a criminal case like this. But this procedure has not been followed by the defence in this case. The previous statement as said to have been made by the witness before the Investigating Officer and as recorded by him in the case diary was not confronted to the witness nor the Investigating Officer proved that statement. But the evidence as adduced by the witness directly in Court was again put to the witness and the witnesss answer in affirmative that she had also stated like that before the Investigating Officer and the denial of the Investigating Officer that no such evidence was stated before him is being sought by the appellants counsel to be used as omission in order to impeach her credit.It am compelled to hold that the appellants cannot be permitted under law to use the omissions brought on record in this way in order to impeach the credit of PW 1. Considering the evidence of PW 1 as whole she appears to be reliable and trust worthy witness and she corroborates the informant on all the important particulars of the case. 38. The PW 2 Dilip Kumar @ Dilip Sao is the son of deceased Company Sao. Considering the evidence of PW 1 as whole she appears to be reliable and trust worthy witness and she corroborates the informant on all the important particulars of the case. 38. The PW 2 Dilip Kumar @ Dilip Sao is the son of deceased Company Sao. He deposed in paragraph 1 that on the day next to the Holi festival at about 7 a,m. 62 persons had surrounded his house and that he had escaped out of his house by scalling over wall and had hidden himself in the adjacent house and from there he had seen (1) Umesh Ram, (2) Rajeshwari, (3) Lampu Ram, (4) Jogendra Ram, (5), Ravi Ram, (6) Kailash Ram, (7) Maheshwar Ram, (8) Arun Ram, (9) Upendra Ram, (10) Dharmendra Ram, (11) Satyendra Ram, (12)Chethru Ram, (13) Lakshmi Ram, (14) Futharu Ram, (15) Haricharan Ram, (16) Karu Ram, (17) Raghu Ram, (18) Nirved Ram, (19) Anik Kumar, (20) Rito Ram, (21) Chuho Ram, (22) Chando Ram, (23) Ghogho Ram, (24) Garib Ram, (25) Parmeshwar Ram, (26) Bando Ram, (27) Munna Ram, (28) Sanjay Ram (29) Prakash Yadav, (30) Ragho Yadav, (31) Dukhi Yadav, (32) Kanchan Yadav, (33) Parmeshwar Yadav, (34) Bodhu Yadav, (35) Brahamdeo Yadav, (36) Rajo Yadav, (37) Gopi Yadav, (38) Ram Lal Yadav, (39) Sahdeo Yadav, (40) Ramautar Yadav, (41) Chuho Yadav, (42) Dobhi Yadav, (43) Bhago Yadav, (44) Rito Yadav, (45) Bhothan Yadav, (46) Durgi Yadav, (47) Kara Yadav, (48) Tunni Yadav, (49) Yatri Ram, (50) Dilip Ram, (51) Pramod Ram, (52) Shankar Yadav, (53) Banarsi Mahto, (54) Jugeshwar Mahto, (55) Batho Mahto, (56) Shailu Mahto and (57) Sulo Mahto who all were armed with bomb, pistol, rifles and gun. All these persons surrounded the house of informant and deceased Company Sao. 4/5 persons entered into the house of Company Sao. The PW 2 further deposed that appellant Yogendra Ram, shot Company Sao (deceased) and Banarsi Mahto threw a gun in that house. He further deposed that the accused persons started looting grains in the house of Shivdani Sao (deceased) and the accused persons had taken away Company Sao and Krishna Sao. The this witness says that the accused persons set fire to the house of deceased Company Sao. He further deposed that the accused persons started looting grains in the house of Shivdani Sao (deceased) and the accused persons had taken away Company Sao and Krishna Sao. The this witness says that the accused persons set fire to the house of deceased Company Sao. Amongst the persons who had set the house of fire the PW 2 names accused Chethru Ram and Lakshmi Ram, Prakash Yadav, Umesh Ram, Dukhi Yadav and Banarsi Mahto stating that they had set the house on fire. The house was burnt in fire. He further deposed that his father (deceased Company Sao) was shot inside the house and he was brunt in fire. 39. At para 3 of his evidence the PW 2 deposed that the accused had taken away the deceased persons Shivdani Sao and Krishna Sao towards field where appellant Ramautar Yadav and Umesh Ram had killed Krishna Sao by exploding bomb and appellant Prakash Yadav had killed the deceased Shivdani Sao by firing shot. At paragraph 4 of his evidence about the cause of occurrence he stated that one day prior to the occurrence it was the date of Holi festival and Malo Devi had gone to bring water and at that time Dharmendra Kumar and Satyendra Kumar had mud put on her and had said indecent words for which Company Sao (deceased) had chided them due to which the accused had also come that day and had exploded bomb as a result of which one calf and one person had been injured. This witness identified some of the accused who were present in Court and claimed to identified those who were represented through lawyer on the day of evidence. 40. At paragraph 19 he deposed that the inquest report of the dead body of deceased Company Sao was prepared in his presence through carbon process by Sub-Inspector of Police Karn of Halsi Police Station in his writing and signature and that he and Ramashish had signed that paper. The inquest report has been marked Ext. 1. He further deposed in paragraph three that the wall which he had scalled over for fleeing out of the house was 3 ft high. The inquest report has been marked Ext. 1. He further deposed in paragraph three that the wall which he had scalled over for fleeing out of the house was 3 ft high. Thus when the wall was only 3 ft high and according to the evidence of PW 1 at paragraph 10 the door shutters of the house of Company Sao was open at the time of occurrence it was possible for the PW 2 to have seen the occurrence from out side that house. At paragraph eight of his evidence PW 2 deposed that he had hidden himself in the adjacent house of Shivdani Sao and he had seen the occurrence from there. At paragraph 10 of his evidence. PW2 deposed that at the time of occurrence his father was on the varandah of his house and he had not gone inside the room of that house and that he (PW 2) had seen the occurrence of the shooting to his father from the house of Shivdani Sao. Thus this witness explains that how it was possible to have seen the occurrence of shooting to his father (deceased Company Sao) when the deceased was on the varandah of the house. 41. At paragraph 11 of his evidence the PW 2 deposed that the accused had taken away deceased Shivdani in his presence. He further deposed that appellant Prakash Yadav, had also caught hold of him but he managed to flee away and that at the time of fleeing Prakash Yadav had given him a blow with the butt of gun due to which he had received swelling injury but the injury was very minor and he had not get himself treated by any doctor for that injury. In view of these circumstances this witness appears to be a natural and probable witness who was present there during the occurrence and to have seen the occurrence. He further deposed at paragraph 13 that the dead body of Shivdani Sao was lying in field at a distance of about 250-300 cubits from the house. The I.O. (PW 12 paragraph 20) has deposed that the dead bodies of deceased Krishna and Shivdani were found at a distance of about 500-600 yards from the house of previous occurrence. He further deposed at paragraph 13 that the dead body of Shivdani Sao was lying in field at a distance of about 250-300 cubits from the house. The I.O. (PW 12 paragraph 20) has deposed that the dead bodies of deceased Krishna and Shivdani were found at a distance of about 500-600 yards from the house of previous occurrence. The learned counsel for the appellants argued that according to PW 2 the dead bodies were at a distance of about 250-300 cubits whereas according to the I.O. the bodies were at a distance of 500-600 yards and thus there is grave discrepancy in the distance as stated by the two witnesses. But on perusal of the evidence it appears that the PW 2 and the Investigating Officer had described the distance from their estimate and none had measured the actual distance and thus when the distance was observed on the estimate by different persons there may be variation. Moreover, the variation is of not of such magnitude so as to warrant any adverse inference against the case of the prosecution on this point. 42. At paragraph 14 of his evidence PW 2 claimed that he had seen with his eyes appellant Yogendra Ram shooting the deceased Company Sao. At paragraph 14 of this witness the attention of the PW 2 was drawn towards the previous police statement that he had stated before the Investigating Officer that after fleeing from his house a shot was fired in his house and he had heard subsequently that Yogendra Ram had shot his father (deceased Company Sao). PW 2 denied to have made such statement before the Investigating Officer. But the Investigating Officer (PW 12 at para 19) has stated that the PW 2 had made such statement before him. Thus in view of the police statement as proved by the Investigating Officer the credit of this PW 2 stands impeached at least on this point that he had seen with his eyes the shooting of his father (deceased Company Sao) at the hands of appellant Yogendra Ram. 43. At paragraph 15 of his evidence the PW 2 was confronted with his evidence as adduced in Court that Ramautar Yadav and Umesh Ram had killed deceased Krishna with bomb and Prakash Yadav had shot the deceased Shivdani and this witness was suggested that he had not stated this fact before the Investigating Officer. 43. At paragraph 15 of his evidence the PW 2 was confronted with his evidence as adduced in Court that Ramautar Yadav and Umesh Ram had killed deceased Krishna with bomb and Prakash Yadav had shot the deceased Shivdani and this witness was suggested that he had not stated this fact before the Investigating Officer. Sub-sequently the Investigating Officer (PW 12 para 16) stated in his evidence that PW 2 had not stated the said facts before him as had been deposed by him before the Court. It appears from the case diary that the PW 2 had stated about the occurrence on the point before the Investigating Officer but in some different language. In order to being about contradictions in the evidence of the witness it was necessary for the defence to bring on record the statement as made by this witness before the Investigating Officer on this point but it was not done and the Investigating Officer simply stated that whatever the witness deposed in the Court on this point was not stated before him by the witness. Due to the reasons as mentioned in detail in the preceding paragraph the omission/contradiction sought to be proved by defence in such a manner on this point is not allowable under law hence the defence cannot be allowed to impeach the credit of the PW 2 on this point. Thus the evidence of PW 2 is cogent and convincing on the material points of the prosecution case. 44. PW 3 Sheela Devi, the wife of deceased Krishna Sao is not an eye witness to the occurrence. She had taken the petition (Ext. 8) to the police station. In paragraph 1 and 2 of her evidence she stated about the occurrence which took place one day ago on the date of Holi festival. She stated that Malo Devi had gone to chapakal (hand pipe) for bringing water and Dharmendra and Satyendra had put mud on her and had said indecent words and Company Sao (deceased) had chided them for that. She stated that Malo Devi had gone to chapakal (hand pipe) for bringing water and Dharmendra and Satyendra had put mud on her and had said indecent words and Company Sao (deceased) had chided them for that. Thereafter, they went away, held meeting and then accused (1) Chethru Ram, (2) Lakshmi Ram, (3) Futharu Ram, (4) Haricharan Ram, (5) Munna Ram, (6) Dukhi Yadav, (7) Ragho Yadav, (8) Prakash Yadav, (9) Rang Lal Yadav, (10) Shadeo Yadav, (11) Umesh Ram, (12) Lampu Ram, (13) Jogendra Ram, (14) Ravi Ram, (15) Rajeshwari Ram, (16) Satyendra Ram, (17) Dharmendra Ram, (18) Yatri Ram, (19) Bhothan Yadav, (20) Durgi Yadav, (21) Punit Yadav, (22) Karu Yadav, (23) Banarsi Mahto, (24) Jugeshwar Mahto, (25) Bhothan Mahto, (26) Raghu Ram, (27) Anik Ram, (28) Karu Ram, (29) Garib Ram, (30) Ghogho Ram (31) Chuha Ram, (32) Chando Ram and (33) Ramautar Yadav variously armed with bomb, pistol and rifle had surrounded the house of Company Sao and Jagdish Sao and a bomb was exploded due to which one calf and one old woman had been injured. 45. She further deposed that one the next day that is the occurrence relating to this case the accused persons against ran saked the house. Then she says that she had gone to Halsi police station with a petition written by Shivdani (deceased) and she had given that petition at the police station and subsequently she had come to the village with police and she had seen that her husband Krishna Sao and Shivdani Sao were lying dead in field and the houses of Jagdish Sao (informant) and deceased Company Sao were burning in flames. She further deposed that she had learnt from Gabitri Devi (PW 1) that Prakash Yadav shot Shivdani Sao and Ramautar Yadav and Umesh Yadav killed the deceased Krishna Sao by bomb. 46. She deposed that she had gone to the police station at 6 a.m. carrying the letter which Shivdani Sao deceased had written one day ago and given to her. She did not know as to what was written in that letter as she was illiterate. 46. She deposed that she had gone to the police station at 6 a.m. carrying the letter which Shivdani Sao deceased had written one day ago and given to her. She did not know as to what was written in that letter as she was illiterate. At paragraph 5 of her evidence she deposed that when she had returned from the police station the occurrence was already over but she had stated here that she had gone to the police station at 10 a.m. The learned counsel for the appellants argued that at one place she says that she had gone to the police station at 7 a.m. but at another place she says that she had gone there at 10 a.m. But this discrepancy due to time does not appear to be a material discrepancy in view of the fact that this witness is illiterate witness and that she does not appear to have stated the time with reference to any watch. 47. The petition produced by the PW 3 at the police station has been proved as Ext. 8 and all that was said in the letter is that Ragho, Dukhi, Umesh and Chethru with 45-50 youngesters had surrounded their houses and they might do anything. The learned counsel for the appellants argued that the petition produced by the PW 3 at the police station was the earlier information to the police station about the occurrence hence is should have been treated as the First Information Report of the case. But on considering the circumstances of the case it appears that PW 3 had left the village before the occurrence started and she returned with the police when the occurrence was already over. She was not an eye witness to the occurrence. As to the contents of the Ext. 8 it is found that it simply says that the accused had surrounded the houses and they might to anything. It does not disclosed any cognizance offence committed by the accused persons. In the case of Binay Kumar Singh (supra) the Apex Court has held that a cryptic information from some body who does not disclose any authentic knowledge about the commission of cognizance offence would not be sufficient to register a First Information Report under Section 154 of the Criminal Procedure Code. In the case of Binay Kumar Singh (supra) the Apex Court has held that a cryptic information from some body who does not disclose any authentic knowledge about the commission of cognizance offence would not be sufficient to register a First Information Report under Section 154 of the Criminal Procedure Code. It has been further held by the Honble Supreme Court that the officer incharge of a police station is no obliged to prepare a First Information Report on any nebulous information received from some body who does not disclosed any authentic knowledge about the commission of cognizable offence and that it is open to the officer incharge to collect more information containing details about the occurrence if available so that he can consider whether a cognizable offence has been committed warranting investigation thereto. Thus in view of what has been held by the Honble Supreme Court no First Information Report could be drawn on the basis of Ext. 8 since it simply mentions an apprehension that the accused might commit offence and it did not disclose any authentic information about the commission of any cognizable offence. Therefore, the officer incharge was correct in not drawing the First Information Report on the basis of Ext. 8 and proceed further for verifying whether any cognizable offence had been committed or not and on reaching to the place of occurrence when he saw that such a cognizable offence had been committed he recorded the fardbeyan of the information at the place of occurrence. 48. The PW 4 Arjun Devi says in the earlier portion of her evidence about the happenings which took place on the day of Holi festival one day prior to the occurrence of this case. About the main occurrence she says that 62 persons armed with rifle, pistol, bomb and lathi had come to the house of deceased Company Sao. She further stated that at that time she was in the house of Baleshwar Mistri. About the main occurrence she says that 62 persons armed with rifle, pistol, bomb and lathi had come to the house of deceased Company Sao. She further stated that at that time she was in the house of Baleshwar Mistri. She named the accused (1) Prakash Yadav, (2) Ragho Yadav, (3) Dukhi, (4) Shankar, (5) Ramautar, (6) Chuho, (7) Bothan, (8) Durgi, (9) Punni, (10) Kara, (11) Umesh, (12) Jogo Ram, (13) Lampu Ram (14) Upendra Ram, (15) Satyendra Ram, (16) Maheshwar Ram, (17) Arun Ram, (18) Kailash Ram (19) Rajeshwar Ram, (20) Chethru Ram, (21) Futharu Ram, (22) Lakshmi Ram, (23) Khaderan Ram, (24) Munna Ram, (25) Ghogho Ram, (26) Mano Ram, (27) Chudo Ram, (28) Chandar Ram, (29) Milo Ram, (30) Garib Ram, (31) Parmeshwar Ram, (32) Anik Ram, (33) Karu Ram, (34) Raghu Ram, (35) Yatri Ram, (36) Dilip Ram, (37) Banarasi Mahto, (38) Jugeshwar Mahto, (39) Sulo Mahto, (40) Badru Mahto and (41) Jogendra Mahto saying that she had identified them and claimed that she would identify others on seeing them. On the date of her evidence PW 4 had not identified Yatri Ram, Kanchan Yadav, Gajadhar Yadav, and Batho Mahto who were present amongst other accused persons in the Court. 49. At paragraph two of her evidence the PW 4 deposed that Jogo Ram (appears to mean Jogendra Ram) had shot the deceased Company Sao. She further deposed that deceased Company Sao was inside the house and he burnt in the fire. She further deposed that the house of informant Jagdish Sao was situating next and it had also burnt in fire. She further deposed that accused Prakash Yadav, Yatri Ram and Umesh Ram had set the houses on fire. At paragraph 3 she further deposed that accused Umesh Ram and Ramautar Yadav and killed the deceased Krishna Sao by bomb. She further deposed that Prakash Yadav had shot the deceased Shivdani Sao with rifle who died to the onion field. At paragraph 4 of her evidence she deposed that had the happenings which took place on the day of Holi festival not taken place the occurrence of this case had also not happened. 50. She further deposed that Prakash Yadav had shot the deceased Shivdani Sao with rifle who died to the onion field. At paragraph 4 of her evidence she deposed that had the happenings which took place on the day of Holi festival not taken place the occurrence of this case had also not happened. 50. At paragraph 6 of PW 4 deposed that she, Meena Devi (PW 6), Savitri Devi (PW 1), Sheela Devi (PW 3), Chandri Devi and Purnia Devi all were in the angan of Shivdani Sao and Sheela Devi (PW 3) had gone to Halsi (Police Station) from there and she had come back after two three hours. The learned counsel for the appellants argued that in paragraph 6 the PW 4 states that she was in the angan of Shivdani Sao but in paragraph 2 she said that it was day of Holi and she was in the house of Baleshwar Mistri. But since the accused persons had surrounded the houses of the informant and deceased Company Sao on both the dates this discrepancy appears to have crept in due to slip of memory and under the circumstance of the case it does not appear to be a material discrepancy. 51. At paragraph 9 the PW 4 deposed that she had requested the accused persons to leave the victims but they had not acceded to her request. At paragraph eleven she further deposed that the deceased Krishna Sao had been killed in the field and she had seen that act of killing. At paragraph 14 of her evidence she was asked whether she had stated before police that Ramautar Yadav and Umesh Ram had killed the deceased Krishna Sao by bomb to which she replied in affirmative. The Investigating Officer (PW 12 in paragraph 21) stated that the PW 4, had not taken the name of accused Ramautar, as amongst the assailants who had killed deceased Krishna Sao with bomb. The learned counsel for the appellants argued that the name of appellant accused Ramautar Yadav has not been stated before the Investigating Officer as an assailant killing the deceased Krishna Sao with bomb. Here again this has to be mentioned that the Investigating Officer recorded in detail the statement of the PW 4 but the relevant statement was neither confronted to the witness nor was proved by the Investigating Officer. Here again this has to be mentioned that the Investigating Officer recorded in detail the statement of the PW 4 but the relevant statement was neither confronted to the witness nor was proved by the Investigating Officer. The Investigating Officer simply stated that the said evidence as adduced in Court in respect of the assault to deceased Krishna Sao at the hands of accused Ramautar was not stated before him by that witness. Hence due to the manner in which the omission was brought on record it cannot be used to help the defence for impeaching the credit of witness on this point. The detailed reasons for this have already been discussed in earlier paragraph. 52. PW 6 Meena Devi is the wife of deceased Company Sao. She deposed that at about 6-7 a.m. while she was in her house accused (1) Prakash Yadav, (2) Dukhi Yadav, (3) Rabhav Yadav, (4) Umesh Ram, (5) Ramlal Yadav, (6) Sahdeo Yadav, (7) Ramautar Ram, (8) Singho Ram, (9) Shankar Yadav, (10) Kanchan Yadav, (11) Parmeshwar Yadav, (12) Bhothan Yadav, (13) Durgi Yadav, (14) Funni Yadav, (15) Karu Yadav, (16) Chethru Ram, (17) Lakshmi Ram, (18) Haricharan Ram, (19) Futaharu Ram, (20) Munna Ram, (20) Sanjay Ram, (21) Sanjay Ram, (22) Chuho Ram, (23) Rito Ram, (24) Garib Ram, (25) Rajeshwari Ram, (26) Yogendra Ram, (27) Arun Ram, (28) Maheshwar Ram, (29) Kailu Ram, (30) Ravi Ram, (31) Lampu Ram, (32) Raghu Ram, (33) Anik Ram, (34) Karu Ram, (35) Jafari Ram, (36) Dilip Ram, (37) Pramod Ram, (38) Botal Mahto, (39) Banarsi Mahto, (40) Jugeshwar Mahto, (41) Sulo Mahto, (42) Sailu Mahto, (43) Upendra, (44) Satyendra and (45) Prameshwar Ram all armed with gun, rifle, pistol and bomb came to her house and surrounded the house and they looted grain in the houses of Jagdish Sao (informant) and deceased Shivdani Sao. PW 6 further deposed at paragraph 1 that accused Yogendra Ram had shot her husband Company Sao (deceased) with gun and accused Prakash Yadav had shot the deceased Shivdani Sao and that accused Umesh Ram and Ramautar Ram had killed the deceased Krishna Sao by means of bomb. She also deposed that the accused had set fire to her house and also the house of Jagdish Sao (informant). She also deposed that the accused had set fire to her house and also the house of Jagdish Sao (informant). She further deposed that her husband (deceased) Company Sao had been thrown in fire and one gun had also been thrown in that fire. At paragraph 2 of her evidence she has stated about the cause of occurrence, the happenings which took place with regard to Malo Devi on the day of Holi festivals and she further deposed that the occurrence had taken place due to that cause. At paragraph 3 of her evidence she identified some of the accused who were present in Court and claimed to identify the remaining accused who were represented through lawyer. 53. At paragraph 4 and 5 she deposed that seeing the mob coming she had hidden herself by the side of the wall of the house of Baleshwar Mistri. It was argued by the appellants counsel that how she could seen the occurrence from behind the wall. But considering the topography of the house of the informant which had only 3 ft high boundary it was not impossible for the witness to have seen the occurrence from the side of the wall where she had hidden herself. 54. At paragraph 6 of the PW 6 deposed that Daroga had recovered one dead body from the house in which her husband had been shot dead. At paragraph 8 she deposed that it was about one and half hours after the accused had surrounded her house that her husband had been shot and that she had come to her house after the arrival of the police. 55. At paragraph 9 of the evidence of PW 6 some contradictions and omissions have been confronted to this witness but on perusal of the evidence of the Investigating Officer (PW 12) it is found that the Investigating Officer has not proved any such contradictory statement. Thus there is nothing to discredit the testimony of this witness. This witness is a trustworthy witness on the point of occurrence. 56. As to the defence evidence the DW 1 Kaushal Kishore Ram examined by the defence deposed that on 29.3.1994 at about 5 a.m. he had gone to village Kharihari and in Bahiyar (open field) he had seen the dead bodies of Krishna Sao and Shivdani Sao at a distance of 15-20 minutes walking distance from the village. 56. As to the defence evidence the DW 1 Kaushal Kishore Ram examined by the defence deposed that on 29.3.1994 at about 5 a.m. he had gone to village Kharihari and in Bahiyar (open field) he had seen the dead bodies of Krishna Sao and Shivdani Sao at a distance of 15-20 minutes walking distance from the village. He further deposed that Jagdish Sao (informant) had not disclosed before him as to who had killed the two deceased but he had told him that Company Sao (deceased) was missing. Thus this defence witness does hot say anything with any specific detail nor there is anything concrete in his evidence so as to dislodge the facts proved by the prosecution witnesses with regard to the occurrence. 57. During argument the learned counsel for the appellant argued that from the burnt house of deceased Company Sao one dead body in badly burnt condition was taken out and the body was not in a position to be identified as the dead body of deceased Company Sao hence it cannot be said to have been proved that the dead body was of Company Sao. It was also argued that the prosecution witnesses say that accused Yogendra Ram had shot the deceased Company Sao but any injury caused by fire arm could not be established on the dead body which had been recovered from the house of deceased Company Sao. On considering the evidence of the doctor (PW 8) who conducted the autopsy on the dead body of the deceased recovered from the house of deceased Company Sao it is found that dead body was in pugilistic stage and the whole body was charred and the upper limbs of both sides were absent at the level of shoulder. There was a gapping hold in the skull and the brain substance was absent. In most parts of the body the skin subcutaneous tissues and muscles were absent. The lungs was shrivelled containing shoot, trachea and broncus contained blood clot and shoot. The doctor opined at paragraph 2 of his evidence that it was difficult to get any sign of gun shot injury on the dead body. Both the upper limbs from the shoulder were absent in the dead body apparently due to having burnt in fire so nothing can be said about there being any injury caused on these portions on the body. Both the upper limbs from the shoulder were absent in the dead body apparently due to having burnt in fire so nothing can be said about there being any injury caused on these portions on the body. So far the remaining portion of the body was concerned the doctor already found that in the condition of the body it was not possible for finding out any injury caused by fire arm. As to the ocular evidence the PW 5 (para 4) has categorically stated that the deceased Company Sao had been shot at the hands of accused Yogendra Ram and that accused persons had thrown his body in the fire. The doctor has found shoot in the lungs, trachea and broncus. This shows that the deceased had taken some breaths inside the burning house which caused deposition of shoot in the lungs, trachea and broncus before his death. In this context the evidence of the witnesses that the body of Company Sao was thrown in fire becomes very important for consideration. Under the circumstances of the case it cannot be ruled out that after being shot the deceased Company Sao had tried to escape with fire shot injury but he was thrown in fire in which he died and subsequently when the dead body was recovered it was burnt to that extent that finding of fire arm injury over the body or some identification was not possible. There is nothing on record to show that in the fire there was possibility of the existence of any other body. Therefore, in the circumstance of the case, there does not remain any doubt that the dead body recovered from the burning house of the deceased Company Sao was that of Company Sao and the charred condition of the body with both of its upper limbs having burnt in fire making it difficult to find any firearm injury on the body does not discredit the evidence of the witnesses that deceased Company Sao had been shot by Yogendra Ram and the body was thrown in fire and subsequently the same body had been recovered from the burnt house. 58. 58. Now considering the evidence of the witnesses as discussed above in detail I find that the prosecution has been able to prove it beyond doubt that appellant Prakash Yadav had killed the deceased Shivdani Sao, therefore, he has been rightly convicted and sentenced under Section 302 of the Indian Penal Code. The order of conviction and sentenced as passed by the trial Court under this count is confirmed. The witnesses have also proved that appellant Prakash Yadav had set the houses of informant and deceased Company Sao on fire, therefore, the conviction and sentence under Section 436 of the Indian Penal Code is also confirmed. Due to having used the firearm illegally for the purpose of killing the deceased Shivdani Sao as proved by the witnesses the conviction and sentence of appellant Prakash Yadav is also maintained under Section 27 of the Arms Act. As to the conviction and sentence under Section 147 of the Indian Penal Code it has been proved by the evidence of the witnesses that all the appellants had formed an unlawful assembly with the common object of arson etc and they surrounded the houses of the informant and deceased Company Sao and in course of that the occurrence of arson and murder was committed by certain specific accused including this appellant. Hence under these circumstances the conviction and sentence under Section 147 of the Indian Penal Code as passed to appellant Prakash Yadav does not need interference and the same is also maintained. 59. As to the appellant Umesh Ram and Ramautar Ram there is consistent evidence of the witnesses that these two appellants had killed the deceased Krishna Sao by bomb, therefore, the conviction and sentence of each of these two appellants under Section 302 of the Indian Penal Code is maintained. As to the charge under Section 436 of the Indian Penal Code there is consistant evidence of the PWs 1, 2 and 4 that Umesh Ram had set fire to the house, therefore, the conviction and sentence of appellant Umesh Ram under Section 436 of the Indian Penal Code is maintained. As regards appellant Ramautar Ram only one witness namely PW 1 has named this accused as amongst those who had set the house on fire. As regards appellant Ramautar Ram only one witness namely PW 1 has named this accused as amongst those who had set the house on fire. In the case of Binay Kumar Singh (supra) the Honble Supreme Court has held that where the size of unlawful assembly is quite large it would be prudent to insist on identification of accused by at least two reliable witnesses. Therefore, I do not find it safe to convict the appellant Ramautar Ram under Section 436 of the Indian Penal Code due to single identification in this case when he was a member of mob of the accused persons. Hence giving benefit of doubt appellant Ramautar Ram is acquitted of the charge under Section 436 of the Indian Penal Code and the conviction and sentence passed by the trial Court under this count is hereby set aside. The two appellants has also been convicted under Section 147 of the Indian Penal Code in view of the facts as proved by the witnesses and dealt with while discussing the case of appellant Prakash Yadav above, I find that there is no need to interfere with the conviction and sentence as passed by the trial Court to these two appellants under Section 147 of the Indian Penal Code hence the same is hereby confirmed. These two appellants have also been convicted and sentenced under Section 3 of the Explosive Substance Act. It has been proved through the evidence of witnesses that these two appellants had killed the deceased Krishna Sao by bomb. In view of the commission of offence of murder by using the bomb the conviction and sentence under Section 3 of the Explosive Substance Act Is quite justified hence the same is also confirmed. 60. The appellant Yogendra Ram has been convicted and sentenced under Section 302 of the Indian Penal Code. In view of the commission of offence of murder by using the bomb the conviction and sentence under Section 3 of the Explosive Substance Act Is quite justified hence the same is also confirmed. 60. The appellant Yogendra Ram has been convicted and sentenced under Section 302 of the Indian Penal Code. On consideration of the consistant evidence of the witnesses it stands proved beyond reasonable doubt that the appellant Yogendra Ram had shot the deceased Company Sao who had also been thrown in fire after shooting and thus killed, therefore, the charge under Section 302 of the Indian Penal Code as levelled on this appellant is proved and hence the conviction and sentence to this appellant under this count does not need any interference and, therefore, the conviction and sentence under Section 302 as award to this appellant by the trial Court is hereby confirmed. This appellant was also a member of unlawful assembly surrounding the houses hence is liable to be convicted under Section 147 of the Indian Penal Code, therefore, the conviction and sentence under Section 147 of the Indian Penal Code as awarded to him is also confirmed. He has been further convicted under Section 27 of the Arms Act. Since it has been amply proved that this appellant had used the fire arm for the purpose of killing the deceased Company Sao his conviction and sentence under Section 27 of the Arms Act does not need any interference and therefore, the same is hereby confirmed. 61. So far the appellant Haricharan Ram is concerned he has been convicted and sentenced under Section 147 of the Indian Penal Code. In view of this appellant, being a member of the unlawful assembly which surrounded the houses of the informant and the deceased Company Sao the conviction and sentence does not need any interference, hence the same is hereby confirmed. As regards the conviction of this appellant under Section 436 of the Indian Penal Code it is found from the evidence of the witnesses that only PW 1 has named this appellant as amongst those who had set the houses on fire. As regards the conviction of this appellant under Section 436 of the Indian Penal Code it is found from the evidence of the witnesses that only PW 1 has named this appellant as amongst those who had set the houses on fire. Considering the principles of law as enunciated by the Supreme Court in the case of Binay Kumar Singh (supra) this appellant is entitled to benefit of doubt due to there being single identification, In such view of the matters giving benefit of doubt this appellant Haricharan Ram is acquitted of the charge under Section 436 of the Indian Penal Code and the conviction and sentence passed under this count is hereby set aside. 62. As to the appellant Dukhi Yadav, he has been convicted and sentenced under Section 147 of the Indian Penal Code and in view of the facts as proved by the witnesses and already discussed earlier this appellant is liable to be convicted under Section 147 of the Indian Penal Code, therefore, the conviction and sentence as passed against this appellant by the learned trial Court under Section 147 of the Indian Penal Code is hereby confirmed. This appellant has also been convicted under Section 436 of the Indian Penal Code and there is evidence of the PW 1 and 2 who have categorically named this appellant as amongst those who had set the houses of informant and deceased Company Sao on fire, the conviction and sentence passed by the trial Court under Section 436 of the Indian Penal Code stands proved beyond doubt and the same is hereby confirmed. 63. On critically analysing the evidence of the witnesses it is found that none of the witnesses examined by the prosecution has named in his examination-in-chief the appellants Dobhi Yadav and Batho Mahto as amongst the culprits who committed the offence. As to the appellants Oppy Ram, he has been named by only the PW 1. Under these circumstances there is no reasonable basis for considering the participation of these three appellants in the offence alleged. Therefore, each of these three appellants namely (1) Dobhi Yadav, (2) Batho Mahto and (3) Oppy Ram who stand convicted and sentence under Sections 302/149 and 147 of the Indian Penal Code are entitled to be acquitted of the charges. Under these circumstances there is no reasonable basis for considering the participation of these three appellants in the offence alleged. Therefore, each of these three appellants namely (1) Dobhi Yadav, (2) Batho Mahto and (3) Oppy Ram who stand convicted and sentence under Sections 302/149 and 147 of the Indian Penal Code are entitled to be acquitted of the charges. Accordingly each of these appellants is acquitted the charge under Sections 302/149 and 147 of the Indian Penal Code and the conviction and sentence passed by the trial Court to these appellants under these two counts are hereby set aside and they are discharged from the liabilities of their bail bounds executed by them. 64. Each of the 45 appellants namely (1) Durgi Yadav, (2) Parmeshwar Yadav, (3) Kara Yadav, (4) Kanchan Yadav, (5) Funni Yadav, (6) Lampu Ram, (7) Ravi @ Ravindra Ram, (8) Sitaram Yadav @ Ghogho, (9) Bando @ Rambilas Ram, (10) Chando Ram, (11) Dilip Ram, (12) Yatri Ram, (13) Pramod @ Burho Ram, (14) Shailu Mahto, (15) Shankar Yadav, (16) Bhothan Yadav, (17) Ramlal Yadav, (18) Chuho Yadav, (19) Brahmdeo Yadav, (20) Boudhu Yadav, (21) Rajo Yadav, (22) Rito Yadav, (23) Bhago Yadav, (24) Lakshmi Ram, (25) Futahru Ram, (26) Parmeshwar Ram, (27) Chuho Ram, (28) Rito Ram, (29) Ragho Yadav, (30) Banarsi Mahto, (31) Jugeshwar Mahto, (32) Rajeshwari Ram, (33) Satendra Ram, (34) Arun Ram, (35) Kailu Ram, (36) Raghu Ram, (37) Karu Ram, (38) Anik Ram, (39) Munna Ram, (40) Prakash Yadav, (41) Umesh Ram, (42) Ramotar Ram (43) Jogendra Ram, (44) Haricharan Rem and (45) Dhuki Yadav stand convicted and sentenced under Sections 302/149 of the Indian Penal Code. In this case there are three deceased persons and for the murder of those three specific charges were framed against the separate accused who was particularly liable for killing the particular deceased and particular accused has also been convicted for the murder of particular deceased. In this case there are three deceased persons and for the murder of those three specific charges were framed against the separate accused who was particularly liable for killing the particular deceased and particular accused has also been convicted for the murder of particular deceased. The other accused who were not particularly charged for killing any particular person were convicted under Section 302 read with Section 149 of the Indian Penal Code on the ground that the murder was committed in prosecution of the common object of the unlawful assembly of which all the accused persons were member and that the each of the members knew that in the prosecution of the common object of such assembly the murders were likely to be committed. For passing conviction under Section 302 read with Section 149 of the Indian Penal Code it is necessary to prove by evidence all the requirements as mentioned above. It is in the evidence of the witnesses that all the accused persons were member of unlawful assembly which surrounded the houses which were burnt but beyond this there is no particular evidence that any of the members other than the particular accused who killed the particular deceased had done any act covert or overt, to facilitate the particular murder committed by particular accused. There is also no evidence to show that the appellants had done anything or made any kind of expression giving any kind of exhortation to the appellants who committed the murder of the deceased persons. There is also no evidence to indicate that the members of the assembly including those who committed the particular murder had any knowledge or that there was any preconcert of mind indicating knowledge in them that the murders were likely to be committed. 65. In the circumstances. I find that there is no material to establish the charge under Section 302/149 of the Indian Penal Code, therefore, the charge under Sections 302/149 of the Indian Penal Code is held not proved and each of the 45 appellants is acquitted of the charge. Accordingly the conviction and sentence passed by the trial Court to each of the appellants under this count is set aside. 66. Accordingly the conviction and sentence passed by the trial Court to each of the appellants under this count is set aside. 66. The 39 appellants namely (1) Durgi Yadav, (2) Parmeshwar Yadav, (3} Kara Yadav, (4) Kanchan Yadav, (5) Funni Yadav, (6) Lampu Ram, (7) Ravi @ Ravindra Ram, (8) Sitaram Yadav @ Ghogho, (9) Bando @ Ram Bilas Ram, (10) Chando Ram, (11) Dilip Ram, (12) Yatri Ram, (13) Pramod @ Burho Ram, (14) Shailu Mahto, (15) Shankar Yadav, (16) Bhothan Yadav, (17) Ramlal Yadav, (18) Chuho Yadav, (19) Brahmdeo Yadav, (20) Boudhu Yadav, (21) Rajo Yadav, (22) Rito Yadav, (23) Bhago Yadav, (24) Lakshmi Ram, (25) Futahru Ram, (26) Parmeshwar Ram, (27) Chuho Ram, (28) Rito Ram, (29) Ragho Yadav, (30) Banarsi Mahto, (31) Jugeshwar Mahto,(32) Rajeshwari Ram, (33) Satendra Ram, (34) Arun Ram, (35) Kailu Ram, (36) Raghu Ram, (37) Karu Ram, (38) Anik Ram and (39) Munna Ram also stand convicted and sentenced under Section 147 of the Indian Penal Code. I find that in view of the discussions made in the preceding paragraph there are materials to hold that these appellants were also the members of the unlawful assembly which surrounded the houses of the informant and deceased Company Sao. In the light of these facts I find that the charge under Section 147 of the Indian Penal Code against each of the 39 appellants stand proved, therefore, the conviction and sentence as passed by the trial Court to each of these appellants under this count is hereby confirmed. 67. All the sentences passed to each of the appellants under each count will run concurrently. 68. In the result the appeals are allowed in part in the manner as indicated above. P.K.Sinha, J. 69 I agree. Appeal allowed in part.