Judgment CHANDRA MOHAN PRASAD, J. 1. The appeals are against the judgment dated 7.9.1999 of the 4th Additional Sessions Judge, Begusarai, passed in Sessions Trial No. 163 of 1991. 2. At the very out set it has to be mentioned here that originally there were 19 accused persons before the trial Court but nine of them were acquitted and the present appeals including one Baso Yadav who is now dead were convicted by the trial Court. The ten accused who were convicted by the trial Court had appealed under the above two appeals but one of the appellants namely Baso yadav died during the pendency of the appeal hence by the order dated 4.7.2003 passed in appeal No. 408 of 1999, the appeal was ordered to have abated in respect of the deceased appellant Baso Yadav. Now this judgement relates to the present nine appellants. 3. Each of the appellants (1) Pokhan Yadav, (2) Rambali Yadav, (3( Rajo Yadav, (4) Upendra Yadav, (5) Narayan Yadav, (6) KhubiLal @ Subeda Yadav and (7) Pawan Yadav had been convicted under Section 147, 302 and 201 of the Indian Penal Code and sentenced respectively to undergo rigorous imprisonment for six months, R.I. for life and R.I. for three years. Each of the remaining two appellants namely (8) Yogendra Yadav, (9) Lalo Yadav had been convicted under Sections 148, 302 and 201 of the Indian Penal code and 27 of the Arms Act and sentenced respectively to undergo R.I. for one year, R.I. for life, R.I. for three years and R.I. for three years. 4. The informant Balo Sahni (PW 9) is the brother of deceased Dhanik Sahni who was a constable in RPF posted at Darbhanga. The prosecution case as appearing in the informants, fardbeyan (Ext.1) which was recoded by Assistant Sub-Insppector Mr. P.N. Singh of Pariha Police Station out post on 27.11.1989 at 10 a.m., is that, that day in the morning hours he (informant) along with his brother Dhanik Sahni (deceased) came to Parihara Chowk where his brother (deceased) had to catch a bus for going to Darbhanga where he (deceased) was posted as a constable in the RPF. They waited there till 9.15 a.m. but any bus did not come hence he engaged a rickshaw-puller, Ramsewak Paswan (PW 1) for carrying his brother (deceased) to Bakhari Chowk. The deceased sat on rickshaw which proceeded towards west of Parihara Chowk. They waited there till 9.15 a.m. but any bus did not come hence he engaged a rickshaw-puller, Ramsewak Paswan (PW 1) for carrying his brother (deceased) to Bakhari Chowk. The deceased sat on rickshaw which proceeded towards west of Parihara Chowk. The informant was also walking by the side of the rickshaw and he was talking with the deceased. When the rickshaw proceeded about 250 yards and reached Parihar Bakhari Road near the well of Radha Sao at about 9.30-a.m. the Appellants Upendra @ Opi Yadav, Yogendra Yadav, Pokhan Yadav, Narayan Yadav, Khubi Lal Yadav, Rajo Yadav, Rambali Yadav, Lalo Yadav, Pawan Yadav, as well as Baso Yadav (now dead) who were armed with country made gun, pistol, bhcda, lathi etc. surrounded the rickshaw, abused the deceased and asked to stop. Then the appellants Lalo Yadav and Yogendra Yadav put pistols on both the temples [Kanpatti] of the deceaseds head. Then Lalo Yadav fired on the deceaseds temple [Kanpatti] and Yogendra Yadav fired a point blank (Satakar) shot on his (deceaseds) Panjara (side area of chest). Thereafter, when the deceased fell down the other accused persons started crushing the head of the deceased with lathi and butt of the gun. Taking chance the informant fled away. In order to save his life he raised hulla. The rickshaw puller (PW 1) also fled away but the accused persons apprehended him. When the deceased died of the injuries the appellants put the dead body on the rickshaw and got the rickshaw forcibly driven by the rickshaw puller (PW 1) and also pushing the rickshaw from behind the appellants took the dead body towards the Sohagi Ghat with a view to disappearing the dead body by drawing it in the river water. The informant further stated that on hulla and also on hearing the sound of firing several persons of the area came and saw the appellants committing the crime but due to fear nobody intervened. About the cause of occurrence the informant claimed that enmity and litigation was going on between the deceased and the appellants and that in the preceding night also some altercation with them had taken place due to which the appellants killed the deceased. 5. As many as 14 witnesses have been examined by the prosecution. The defence has examined two witnesses and three witnesses have been examined as Court witnesses. 6. 5. As many as 14 witnesses have been examined by the prosecution. The defence has examined two witnesses and three witnesses have been examined as Court witnesses. 6. Out of the three Court witnesses CW-1 Dr. Naveen Kumar Verma is the doctor who had conducted postmortem examination on the dead body of the deceased. CW-2 Paras Nath Singh, ASI, has deposed that he had recorded the informants fardbeayan at Parihara police out post. He also deposed that he had seized blood soaked soil and prepared seizure list (Ext.-Y). He also deposed that he had seized one blue colour trouser, one leather belt and one langota and had prepared seizure list (Ext. X). The CW-3 Baidhnath Tiwary is the investigating officer whose evidence will be discussed later on in detail. 7. DW-1 Govind Chaudhary simply deposed that the shops of Ramsharan Sah, Ramautar Poddar, Sitaram Thakur, Sitaram Sah, Md. Alam and others situated at Parihara Chowk. He further deposed that in the way from the chowk to the Bandh there situate brick kiln and 5-6 residential houses of people. He further deposed that nearly 50 persons usually remain present at the brick kiln. He also deposed that the first turning on the road is at a distance of 600 mts from chowk and well of Radha Sah situated at a distance of 500 yards towards west of the chowk. DW-2 Tej Narayan Sharma has also given the topography of the area in his evidence. Thus these two defence witnesses simply say about the topography of the area and there is nothing material on the point of occurrence in their evidence. 8. Out of the prosecution witness PW 1 Ramsewak Paswan is the rickshaw puller who is said to have carried the deceased to the place of occurrence and from the place of occurrence to the river where the dead body is said to have drowned but this witness has turned hostile and he deposed in his examination-in-chief that he knew nothing about the occurrence. On his attention being drawn by the APP towards his previous police statement he denied to have given any statement supporting the case of the prosecution before the police. 9. The PW 4 Jhuna Sahni who is a witness on the point of seizure of blood soaked soil from the place of occurrence has also turned hostile. On his attention being drawn by the APP towards his previous police statement he denied to have given any statement supporting the case of the prosecution before the police. 9. The PW 4 Jhuna Sahni who is a witness on the point of seizure of blood soaked soil from the place of occurrence has also turned hostile. This witness identified his signature Ext.4 on the seizure list regarding seizure of blood soaked soil from the place of occurrence. But he said that the seizure list was not prepared nor the seizure was made in his presence and that he had put his signature at the police station. The PW 12 Rajendra Sahni, who is witness on the point of preparation of inquest report of the deceased has also turned hostile. He also admitted his signature Ext. 5/2 on the inquest report but he deposed that the dead body had not been recovered nor the inquest report was prepared in his presence. He further deposed that he had identified the dead body of the deceased Dhanik Sahni at the police station. The PW 13 Brahamdeo Sahni is also hostile witness and he simply deposed that at about 9.40 a.m. while he v as irrigating his maize field he had seen from a distance that 15-20 persons had surrounded one rickshaw on Bakhari Road but he had not identified any of the persons surrounding the rickshaw nor he had seen as to who of the persons had assaulted him there. On his attention being drawn towards his previous police statement this witness has denied to have given any statement supporting the case of the prosecution before the police. PW 2 Sitaram Sharma, PW 3 Kapildeo Sahni, PW 6 Adhik Sahni, PW 7 Dinesh Sahni, PW 8 Bhutto Sahni and PW 14 Arun Kumar Singh are formal witnesses. PW 2 has proved the writings and signature of ASI Paras Nath Tiwary on the fardbeyan which has been marked as Ext. 1. He has also proved the endorsement (Ext. 1/1) in the writing and signature of Inspector Baidhnath Tiwary on the fardbeyan. He further proved the signature of the informant (Ext. 1/2, 1/3) Balo Sahni on the fardbeyan. PW 3 has proved the seizure list (Ext. 3) in the writing and signature of ASr Paras Nath Tiwary. 1. He has also proved the endorsement (Ext. 1/1) in the writing and signature of Inspector Baidhnath Tiwary on the fardbeyan. He further proved the signature of the informant (Ext. 1/2, 1/3) Balo Sahni on the fardbeyan. PW 3 has proved the seizure list (Ext. 3) in the writing and signature of ASr Paras Nath Tiwary. PW 5 Kapildeo Sahni deposed that Dhanik Sahni (deceased) was his co-villager and that he (PW 5) had seen the deceaseds dead body and further other articles, that is, one red colour trouser, leather belt and white cotton langota which were recovered from Gandak river. He further deposed that papers were prepared regarding the recovery and seizure of the dead body and articles and that he had signed the papers and his signature has been marked Ext.3/1. But in paragraph 2 of the cross-examination this witness stated that papers on which he had put his signature were prepared at Begusarai Police Station. The PW 6 is a witness on the point of blood soaked soil and he deposed that after seizure papers were prepared regarding the seizure and he had put his LTI on the same but he continued to say that the papers were prepared at Parihara Police Station. The PW 7 who is also witness on the point of seizure deposed that the clothes of the deceased were recovered and seized on preparation of seizure list. He stated to have identified the sweater, moja, belt and langot He identified his signature (Ext. 3/2) on the seizure list saying that the same was prepared at the place of occurrence. The PW 8 is a witness on the point of recovery of the dead body from river Budhi Gandak and the preparation of inquest report regarding the dead body. He stated that inquest report was prepared at the Ghat (river bank) through carbon process and he as well as Rajendra Sahni had put signatures on the same. The inquest report was marked Ext.5 and the signatures are Ext. 5/1 and 5/2. The PW 14 is another formal witness who has proved the writings and signature of Dr. Navin Kumar Verma on deceaseds postmortem examination report which has been marked as Ext.6. PW 9 Balo Sahni is the informant himself. PW 10 Prabhu Paswan and PW 11 Mahendra Pd. Thakur are witnesses to the occurrence. 10. 5/1 and 5/2. The PW 14 is another formal witness who has proved the writings and signature of Dr. Navin Kumar Verma on deceaseds postmortem examination report which has been marked as Ext.6. PW 9 Balo Sahni is the informant himself. PW 10 Prabhu Paswan and PW 11 Mahendra Pd. Thakur are witnesses to the occurrence. 10. Before discussing the evidence of informant and other witnesses it is relevant to discuss the evidence of the doctor who conducted the post mortem examination on the deceased. The Doctor (CW-1) deposed that on 30.11.1989 he conducted the postmortem examination on the dead body of the deceased Dnanik Sahni and found the following antemortem injuries : (a) Lacerated wound on the back 1" x 1/4" x 1/4" simple by hard blunt substance. (b) Cut injury on the face extending from right chin to left side 5" x 1" x bone exposed simple by sharp weapon. (c) Lacerated wound on the left shoulder joint margin inverted blackened 1/4" x 1/4" x bone deep grievous by fire arm. (d) Lacerated wound on the back of right arm 1/4" x 1/4" x bone deep inverted and blackened and on exploring the wound bullet found and kept in sealed vial and fracture of Right Humrus-grivious by fire arm. (e) Cut injury on left side of neck 2" x 1/4" x 1/4" simple by sharp weapon. (f) Left side of the rib 3rd and 4th fractured. On exploring the wound on dissection bullet found in abdominai cavity traversing the heart, and chest cavity contained blood-Grivious by fire arm. (g) Cut injury on abdomen left side near pupis 1/2" x 1/2" x 1/4" simple by sharp cutting. 11. Time elapsed within 48 hours to 4th day. The doctor opined that the death was due to shock and haemorrhage due to above noted internal injuries. Two bullets, blood stained, kept in sealed vial were handed over to the dafadar accompanying the dead body. The doctor says that he had prepared the postmortem examination report in original with carbon copy through carbon process. The postmortem examination was marked as Ext. Z. In cross-examination at paragraph 8 the doctor deposed that the injury No. V which was a cut injury on neck was not sufficient to cause death instantaneously since it was a simple injury. The doctor says that he had prepared the postmortem examination report in original with carbon copy through carbon process. The postmortem examination was marked as Ext. Z. In cross-examination at paragraph 8 the doctor deposed that the injury No. V which was a cut injury on neck was not sufficient to cause death instantaneously since it was a simple injury. At paragraph 10 he deposed that from abdominal cavity two bullets were found traversing the heart which were sufficient in ordinary course of nature to cause death At paragraph 12 he further deposed that if the injury traversing the heart was caused first it was difficult to say whether other injuries were postmortem injuries. 12. The informant (PW 9) deposed that the deceased Dhanik Sahni was his brother who was a constable in RPF posted at Darbhanga and he had gone to his house on leave. He further deposed that on the date of occurrence at about 9.30 a.m. the deceased left his house for going to Darbhanga to attend his duty. He (informant) was accompanying the deceased and both of them went to bus stand for catching bus but any bus was not available hence he (informant) engaged the rickshawpuller Ram Sewak Paswan for carrying the deceased to Salona Railway Station. He further deposed that the deceased sat on rickshaw and he (informant) was walking on foot and talking the deceased who was on rickshaw. When the rickshaw reached near the well of Raha Sah suddenly the appellants as well as others who have been acquitted by the trial Court surrounded the rickshaw. The appellants Yogendra and Lalo asked to stop. Then Lalo Yadav shot at the temporal region [kanpatti] of the deceased. Appellant Yogendra shot on panjara (side rib area) of the deceased. Getting the shots the deceased fell down from the rickshaw. Then all the accused persons started crushing head and face of the deceased with lathi and butt of the gun. The deceased died there. The informant further deposed that on raising hulla he fled away from there. The rickshaw puller (PW 1) also tried to flee away but the accused persons caught him. The accused persons put the dead body on rickshaw and took the dead body through Parihara Chowk to Sohagi Ghat and drowned the dead body in the river. The informant further deposed that on raising hulla he fled away from there. The rickshaw puller (PW 1) also tried to flee away but the accused persons caught him. The accused persons put the dead body on rickshaw and took the dead body through Parihara Chowk to Sohagi Ghat and drowned the dead body in the river. He says that on nulla several persons came there but due to fear nobody intervened. He also deposed that he and his brother had lodged S.D. Entry against the accused persons and one complaint case No. 5284 C/89 and one proceeding under Section 107 Cr. P.C. was going on with the accused due to which grudge they committed the crime. 13. At para 2 of his evidence the informant deposed that on the same day i.e. 10 a.m. he had given his fardbayan at Parihara police outpost which was recorded by police and then read over to him and then finding it correct he had put his signature over the same. The fardbeyan is Ext. 1. He further stated that he had named only ten assailants in his fardbeyan. At paragraph 7 he deposed that he had proceeded about 250 yards on Parihar Bakhari Road up to the well of Radha Sao where the occurrence took place. At para 10 he deposed that on both sides of Parihar Bakhari Road there are 15/16 shops, comprising of tea shops, betel shops, saloon and toddy shop. At para 29 he deposed about the manner of assault saying that while pistol was pointed on the temporal region, the deceased received the shot in a position, the pistol lifted on shoulder above and its muzzle was pointing below and then sound of firing had occurred. He had heard the sound of firing. At paragraph 30 of cross examination he deposed that on receiving the first shot the deceased bent down and thereafter appellant Yogendra had shot deceased on his right panjara. At para 13, 14 and 15 of cross-examination he deposed that for going to Sohagi Ghat one has to take turn towards south of Parihara Chowk and from there Bandh situated at a distance of about one and half kilometers and from Bandh one has to cover distance of about 200 yards for reaching Sohagi Ghat. At para 13, 14 and 15 of cross-examination he deposed that for going to Sohagi Ghat one has to take turn towards south of Parihara Chowk and from there Bandh situated at a distance of about one and half kilometers and from Bandh one has to cover distance of about 200 yards for reaching Sohagi Ghat. The informant had deposed at para 1 that the accused persons had taken away the dead body to Sohagi Ghat through Parihara Chowk. 14. The CW-3 who is the investigating officer of the case deposed that he had investigated the case and inspected the place of occurrence. According to him the place of occurrence was situated on the western side of Khagaria Bakhari Road situated at a distance of 250 yards west from Prihara Chowk. He further deposed that blood was found on the flank of road and cross there and that Assistant Sub-Inspector Shri P.N. Singh had already seized earlier blood soaked soil from there. He further deposed in para 7 that in the direction towards Parihara Chowk continuously up to ten feet from the place of occurrence there was marks of copious blood and thereafter up to 60 yards blood drops were found. He further deposed in paragraph 8 that after going 600 yards through Parihara Chowk a puccad road bifurcates which goes up to the Bandh of the Gandak river and from Bandh there is kutcha road for going up to Sohagi Ghat. He also deposed that on that kutcha road there was marks of tyres of rickshaw. He deposed that on the kutcha road rickshaw was also found and on the seat of rickshaw there was copious blood. The rickshaw has been seized by Assistant Sub-Inspector of Police P.N. Singh. He also deposed that on the bank of the river there was mark indicating dragging of some heavy object like dead body. There was also blood mark on earth there. On that place some clothes of the deceased were found which had already been seized by the said ASI. At para 9 the investigating officer deposed that the Ghat that is bank of river situated at a distance of about 4 k.m. from the place of occurrence. There was also blood mark on earth there. On that place some clothes of the deceased were found which had already been seized by the said ASI. At para 9 the investigating officer deposed that the Ghat that is bank of river situated at a distance of about 4 k.m. from the place of occurrence. At paragraph 27 of the cross-examination the investigating officer deposed that the place of occurrence was situated at pitch road and that from the place of occurrence up to Sohagi Ghat populated area and bazar situated in between. At paragraph 30 he deposed that the dead body had been recovered on 29.11.1989. At paragraph 36 he deposed that the dead body had been recovered from river stream of Gandak nose no. 2 of the Bandh situated at a distance of one kilometer from Sohagi Ghat. 15. As to the witnesses PW 11 claims to be the eye witness to the occurrence. He is a barber who says that he was going to his Jajman for his work there and the informant (PW 9) and deceased had also accompanied him. He further deposed that they had reached at Parihara bus stand and waited there for about one and half hours and when the bus did not come, the informant got the deceased seated on rickshaw and kept his luggage (deceaseds articles) on the rickshaw. The rickshaw proceeded towards Bakhari and the informant talking the deceased was going on foot by the side of rickshaw. This witness says that he (PW 11) was also going behind the rickshaw. He continued to depose that when the rickshaw reached near the well of Radha Sao, the son of Rudo Sao, 19 accused surrounded the rickshaw there. This witness names the appellants excepting appellant Rambali Yadav and says that appellant Lalo Yadav, fired pistol on the neck of the deceased and after one minute of the assault appellant Yogi (Yogendra Yadav) fired shot on the abdomen of the deceased. Due to the assault Dhanik Sahni (deceased) fell down from the rickshaw, then accused Shambhu Sahni took out garasa and started cutting the neck of Dhanik Sahni (deceased). Other accused persons assaulted with lathi and butt of gun and pistol on the face and other parts of the body of the deceased Dhanik Sahni who died immediately. 16. Due to the assault Dhanik Sahni (deceased) fell down from the rickshaw, then accused Shambhu Sahni took out garasa and started cutting the neck of Dhanik Sahni (deceased). Other accused persons assaulted with lathi and butt of gun and pistol on the face and other parts of the body of the deceased Dhanik Sahni who died immediately. 16. This witness (PW 11) further deposed that Ramsewak Paswan rickshaw puller (PW 1) stood apart leaving the rickshaw there. But the accused persons chided him and called him to the place of occurrence and then all of the accused persons kept the dead body of the deceased on the rickshaw and moved towards Sohagi Ghat in western direction. He further deposed that the dead body had been recovered from Gandak river. He also deposed that the accused persons had old enmity with the deceased and due to that they committed the occurrence. At paragraph 8 of his cross-examination he deposed that he does job of a barber and he goes to his Jqjman (clients) in Parihara and Malpura area and that on the date of occurrence he was going to the house of Bishundeo Manjhi in Uttarbari Tola for attending Shradh ceremony. He further deposed that he along with the informant and deceased had waited at the bus stand for about one hour and he had no hurry to go in the Shradh rituals immediately as because his work was required after the completion of the work of Mahapatra, Brahman Bhoj in that ritual. At paragraph 9 of cross examination he further deposed that while he was about 20 yards behind the well of Radha Sao the accused persons suddenly came to the place of occurrence. He further deposed that he stood on the road at a distance of 50 yards east to the place of occurrence. Thus this witness had opportunity to see the occurrence. 17. At Paragraph 11 of cross-examination the PW 11 deposed that on receiving the two shots the deceased fell down and died. He further deposed that the accused persons put the dead body on rickshaw and started taking it away. He had left the place of occurrence. 18. Thus this witness had opportunity to see the occurrence. 17. At Paragraph 11 of cross-examination the PW 11 deposed that on receiving the two shots the deceased fell down and died. He further deposed that the accused persons put the dead body on rickshaw and started taking it away. He had left the place of occurrence. 18. At Paragraphs 12 and 13 of cross-examination he deposed that after the occurrence he had not gone to the house of his Jajman but he had gone to Parihara police out post and stated there that the deceased had been killed but no action was taken there and the police asked him to collect people and go to the place of occurrence and that he (PW 11) tried to collect some people but due to fear no body assembled and accompanied him. At Paragraph 14 of cross-examination he further deposed that two days after the occurrence daroga met him at the place of occurrence and had recorded his statement. 19. At para 15, 16, 17 and 18 of the cross-examination the evidence of this witness as adduced in Court was confronted to him and he was suggested that he had not stated those facts before the investigating officer to which this witness replied that he had stated it before the investigating officer. The investigating officer has been examined as CW-3 and it appears that the defence has not proved any omission or contradiction through the evidence of the investigating officer. Hence the attention cf the PW 11 as drawn in paragraph 15, 16, 17 and 18 of the PW 11 cannot be availed by the defence to impeach the credibility of the witness on that point. Thus PW 11 supports the prosecution on vital points. 20. PW 10 states that he had come at the place of occurrence on hearing hulla. He deposed that while he was irrigating his maize field situated west of Parihara Chowk he heard hulla "marlak ho marlak ho". On hearing this hulla he came on the road. This witness names the appellants and others excepting the appellants Rambali Yadav, Narayan Yadav, Khubi Lal Yadav and Pawan Yadav and stated that there were 18-19 persons who were armed with gun, pistol and lathi and they were assaulting the deceased with lathi. On hearing this hulla he came on the road. This witness names the appellants and others excepting the appellants Rambali Yadav, Narayan Yadav, Khubi Lal Yadav and Pawan Yadav and stated that there were 18-19 persons who were armed with gun, pistol and lathi and they were assaulting the deceased with lathi. He further deposed that Ramchandra Sao (already acquitted) did cut the neck of the deceased with garasa and the deceased died there. He further deposed that the accused persons kept the dead body of the deceased on rickshaw and took it towards Gandak river. 21. At paragraph 3 of cross-examination the PW 10 deposed that appellant Pokhan Yadav, has filed a case under Section 307 of the Indian Penal Code on his sons (PW 10s) Baijnath Prasad and the case was instituted prior to this case. At paragraph 7 of cross-examination he deposed that on the date of occurrence he was working on wages for irrigating the field and he was alone in that field. At para 8 of cross-examination he further deposed that accused Chandra Sao had filed a case bearing Baliya P.S. case No. 130/1989 against his another son Suraj Paswan. At para 16 of cross-examination he further deposed that the field which he was irrigating situated at a distance of 150 yards west of Parihara Chowk. At Para 19 of cross-examination he deposed that he had seen the deceased fallen with his left side down. He further deposed that when he had reached at the place of occurrence there was non excepting the accused persons. From this evidence it appears that when this witness had reached the place of occurrence on hulla the informant had fled away from there by that time. Any vital contradictions as against his police statement has not been taken in his evidence. 22. Thus considering the evidence as discussed above, it appears that the informant PW 9 (informant) and PW 11 are the witnesses to the occurrence and PW 10 is a witness who claims to have seen part of the occurrence i.e. the assault by the accused persons on the deceased excepting the assault by Yogendra Yadav and Lalo Yadav by means of pistol. 23. During the argument the learned counsel for the appellants argued that in this case PW 9 is interested witness. 23. During the argument the learned counsel for the appellants argued that in this case PW 9 is interested witness. No doubt PW 9 being the brother of the deceased can be said to be an interested witness but from the circumstances of the case and his evidence it appears that he was accompanying the deceased while going up to bus stand and then after to the railway station for catching train. Hence he is a natural and probable witness. As regards the PW 11 he does not appear to be a witness connected to or related to either side. Any kind of enmity in this witness has not been brought on record. This witness says that while going to attend Shradh ritual at his Jajman he had accompanied the informant and the deceased in the way. Thus this witness had an opportunity to see the occurrence. So far PW 10 is concerned he stated to have came to the piace of occurrence on hulla and to have seen the part of the occurrence excepting the assault on the deceased by appellants Yogendra Yadav and Lalo Yadav by means of pistol. Thus he is a witness who has come to the place of occurrence on hulla. No doubt in paragraph 3 and 8 of his evidence he has admitted that appellants Pokhan Yadav and accused Ramchandra Sah (already acquitted) had filed cases against his two sons Baijnath Paswan and Suraj Paswan. Thus there appears to be enmity of this witness with those two accused persons namely Pokhan Yadav and Ramchandra Sah. Besides this there does not appear any kind of enmity against other appellants particularly the main assailant Yogendra Yadav and Lalo Yadav. 24. The learned counsel for the appellant argued that in this case there are no other independent witness excepting the informant (PW 9), (PW 11) and (PW 10). From the circumstances of the case, it appears that the places where the occurrence was committed is on road near the well of Radha Sao son of Rudo Sao. When the occurrence took place on road only the people and passengers passing on the road would be natural and probable witnesses. PW 9 (informant), the brother of the deceased was accompanying the deceased. PW 11 was also going behind the rickshaw on which the deceased was seated. When the occurrence took place on road only the people and passengers passing on the road would be natural and probable witnesses. PW 9 (informant), the brother of the deceased was accompanying the deceased. PW 11 was also going behind the rickshaw on which the deceased was seated. PW 10 who was alone while irrigating the maize field had come to the place of occurrence on hulla and he had seen part of the occurrence. Thus these witnesses were available there to see the occurrence. There is nothing on the record to indicate that some others had seen the occurrence of killing or there was probability of others having seen it. 25. As to the assault on the deceased by means of pistol at the hands of the appellants Yogendra Yadav and Lalo Yadav, the learned counsel for the appellant argued that the informant stated in the fardbeyan that appellant Lalo Yadav, had fired shot on deceaseds kanpatti (temporal region) and Yogendra Yadav had fired point blank shot on deceaseds panjara (side area of chest) and that in his evidence also he (informant) deposed this but the learned counsel argued that during the postmortem examination any fire arm injury has not been found on the temporal region of the deceased. No doubt the medical evidence does not show any fire arm injury on the deceaseds temporal region whereas the informant has stated in his examination in chief that assault was given by means of pistol on deceaseds kanpatti (temporal region). The reason for absence of any injury on deceaseds temporal region is clarified in paragraph 29 of the cross-examination of the informant (PW 9). During cross examination the informant said that while the assault with pistol on the temporal region of the deceased was being given, the pistol was touching the deceaseds kanpatti (temporal region) and at that time the pistol was slightly above and its muzzle was pointing down while the shot was fired and it also caused the sound of firing. On considering the injury no. 2(c) ie. On considering the injury no. 2(c) ie. lacerated wound on the left shoulder joint margin inverted blackened 1/4" x 1/4" into bone deep grievous by firearm, it appears that this injury which is a firearm wound of entry on the shoulder joint of the deceased could be caused by the appellant Lalo Yadav in the manner of assault as explained above in paragraph 29 which was stated in general way in his examination-in chief that pistol injury was caused on deceaseds kanpatti (temporal region). According to the informant the appellant Yogendra fired shot hitting on the deceaseds panjara. The PW 11 has also stated about assault on the deceaseds abdomen and neck by means of pistol at the hands of appellants Yogendra and Lalo. The doctor has opined the injury No. (d) that is lacerated wound on the back of right arm 1/4" x 1/4" x bone deep margin inverted and blackened and on exploring the wound bullet found and kept in sealed vial and fracture of right humerus grievous by firearm and the injury No. (f) left side of the rib 3rd and 4th fractured on exploring the wound on dissection bullet found in abdominal cavity traversing the heart, and chest cavity contained blood, grievous, by fire-arm. Thus the injury No. (d) and (f) established the injury stated to have been caused at the hands of appellants Yogendra who is said to have fired shot on deceaseds panjara. The doctor (CW-1) deposed at paragraph 10 of cross-examination that the injury causing fracture of rib and the injury in the abdominal cavity where bullet was found traversing the heart was sufficient in ordinary course of nature to cause death. At paragraph 12 of cross-examination he further deposed that if the injury traversing the heart would be caused first it is very difficult to say whether other injuries are postmortem injuries. From this evidence of the doctor as adduced in paragraph 10 and 12 of his cross-examination it appears that the injury no. (f) which was a firearm injury wherein the bullet had traversed the heart was sufficient to cause instantaneous death. The doctor has also opined that in view of this injury if it was caused first it was difficult to say whether the other injuries were postmortem injuries. (f) which was a firearm injury wherein the bullet had traversed the heart was sufficient to cause instantaneous death. The doctor has also opined that in view of this injury if it was caused first it was difficult to say whether the other injuries were postmortem injuries. From the evidence of the witnesses it has been established that appellant Lalo Yadav gave the first shot on the deceaseds kanpattt which according to the manner as explained in paragraph 29 of the informant (PW 9) had hit the deceased on shoulder causing the injury no. (c) as found by the doctor. Then it is further established through the evidence that the appellant Yogendra Yadav had given the subsequent firing shot within one minute of the first shot (PW 11, paragraph 1) hitting on deceaseds panjara which has caused the injury no. (d) and (f) as found by the doctor (CW-1). Thus it has been proved through the evidence that the appellants Yogendra Yadav and Lalo Yadav had assaulted the deceased with pistols causing injuries which caused the death of the deceased. The assault as caused by the two appellants Yogendra Yadav and Lalo Yadav shows a common intention to kill the deceased and that in furtherance of their common intention they caused the firearm injuries due to which the deceased died. In this case the learned trial Judge had framed charges under Sections 302 read with 34 of the Indian Penal Code on the appellants but while passing conviction the appellants have been convicted under Section 302 of the Indian Penal Code only. No doubt there is material to indicate a common intention between the two appellants Lalo Yadav and Yogendra Yadav for causing the death but under the circumstances of the case when both the appellants had hit the deceased on vital parts of the body causing injury and thus causing the deceaseds death, there does not appear to be any illegality in convicting the appellants Yogendra Yadav and Lalo Yadav under Section 302 of the Indian Penal Code. Under the circumstances the conviction of the appellants Yogendra Yadav and Lalo Yadav under Section 302 of the Indian Penal Code and the sentence of rigorous imprisonment for life as awarded to each of the two appellants does not need interference and the same is confirmed. 26. Under the circumstances the conviction of the appellants Yogendra Yadav and Lalo Yadav under Section 302 of the Indian Penal Code and the sentence of rigorous imprisonment for life as awarded to each of the two appellants does not need interference and the same is confirmed. 26. As to the appellants Pokhan, Rambali, Rajo, Upendra, Narayan, Khubi Lal and Pawan Yadav the learned counsel for the appellants argued that there are various infirmities and inconsistencies in the evidence of the witnesses which would show that the allegation against these appellants have not been proved beyond reasonable doubt. First of all it was pointed out that the PW 10 does not name the appellants Rambali, Narayan, Khubi Lal and Pawan Yadav and that PW 11 also does not name appellant Rambali Yadav. It was also pointed out that the PW 10 in paragraph 3 has admitted that appellant Pokhan Yadav, had filed a case under Section 307 against his one son Baijnath Paswan and accused Ramchandra Sao (already acquitted) had filed complaint case against his another son Suraj Paswan. Thus the PW 10 was inimical to accused Ramchandra Sao and appellant Pokhan Yadav.The prosecution case is that these appellants had caused cut injury on deceaseds neck. The doctor has found cut injury of simple nature on deceaseds chin, neck and abdomen left side. The learned counsel argued that cut injury on deceaseds chin and abdomen has been found but according to the evidence of the witnesses the accused persons caused cut injury on neck only. As to the causing of the cut injury it was pointed out that there are vital contradictions as to the assailants who caused this. It was pointed out that according to the PW 10 paragraph 1 accused Ramchandra Sao cut the deceaseds neck with garasa whereas according to PW 11 paragraph 1 accused Shambhu Sahni had caused cut injury on deceaseds neck. Thus a serious doubt is entertained as to who of the accused had caused the cut injury on the deceased. Besides this it was further argued that assaults at the hands of Yogendra and Lalo Yadav causing firearm injury, the bullet traversing the heart was sufficient to cause instantaneous death of the deceased. Thus a serious doubt is entertained as to who of the accused had caused the cut injury on the deceased. Besides this it was further argued that assaults at the hands of Yogendra and Lalo Yadav causing firearm injury, the bullet traversing the heart was sufficient to cause instantaneous death of the deceased. The learned counsel argued that according to the case of the prosecution when the deceased had fallen down from rickshaw after receiving fire shots these appellants assaulted the deceased with lathi and butt of the gun crushing his face but it is pointed out that the doctor has not found any crushing injury on the face of the deceased. It was also argued that the firearm injury caused by the appellant Yogendra Yadav and Lalo Yadav was sufficient to cause instantaneous death as also said by the doctor. (CW-1 paragraph 12) that if the injury traversing the heart would be caused first it was difficult to say whether the other injuries were antimortem and the evidence of the PW 11 in paragraph 11 that receiving the two shots at the hands of Yogendra Yadav and Lalo Yadav the deceased had fellen down and died, it was argued that the deceased was already dead before these appellants are alleged to have given assault to him by means of lathi, garasa and butt of gun after his falling from the rickshaw. The submissions of the appellants counsel carry substantial reasons and in view of the discussions made above and the infirmities discussed in the evidence of the witnesses which does not stand proved beyond reasonable doubt that these appellants namely Pokhan Yadav, Rambali Yadav, Rajo Yadav, Upendra Yadav, Narayan Yadav, Khubilal @ Subeda Yadav and Pawan Yadav had caused assault giving injuries to the deceased causing the deceaseds death. Under the circumstances these seven appellants deserve to be acquitted of the charge under Section 302 of the Indian Panal Code and therefore, the conviction and sentence of each of those seven appellants under Section 302 of the IPC is hereby set aside and each of these appellants is acquitted of this charge. 27. As to the conviction of the appellants under Section 201 of the Indian Penal Code the prosecution case is that accused persons took the dead body of the deceased on rickshaw through Parihara Chowk. 27. As to the conviction of the appellants under Section 201 of the Indian Penal Code the prosecution case is that accused persons took the dead body of the deceased on rickshaw through Parihara Chowk. The informant (PW 9), PW 10 and 11 who are witnesses to the occurrence do not say that they had followed the accused while they took the dead body towards the river and drown it there. The PW 9 at paragraph 10 deposed that there are 15-16 shops of tea, betel, and toddy situated on both sides of road at Parihara Chowk. Thus the dead body is said to have been taken through the Chowk which is market area where several persons are expected to be present but no one has been examined to say that any of the appellants had taken the dead body towards river through the Chowk. As already stated above the eye witness namely PWs-9, 10, 11 did not say to have followed and seen the accused taking away the dead body from the place of occurrence to the river. The I.O. (CW-3 at para 27) has stated that from the place of occurrence up to Sohagi Ghat where the dead body is said to have been taken, there is bazar and dense population in the way. At paragraph 9 the investigating officer stated that the ghat of the river is about three kilometers from the place of occurrence. Thus the dead body is said to have been taken to the river covering a distance of about 3 kilometers and passing through bazar and populated area and in such circumstances non-examination of any other witnesses on the point of taking of the dead body from the place of occurrence to the river and drowning in the river does not remain free from doubt. Under the circumstances it is not safe to convict the appellants under Section 201 of the Indian Penal Code and therefore, giving benefit of doubt each of the appellants is acquitted of the charge under Section 201 of the Indian Penal Code and thus the conviction and sentence as passed by the trial Court under this count is hereby set aside. 28. The appellant Yogendra Yadav and Lalo Yadav have been convicted under Section 27 of the Arms Act and sentenced to rigorous imprisonment for three years. 28. The appellant Yogendra Yadav and Lalo Yadav have been convicted under Section 27 of the Arms Act and sentenced to rigorous imprisonment for three years. It has been proved through evidence that these two appellants had caused firearm injury by means of pistols on the deceased, therefore, the conviction and sentence as passed under Section 27 of the Arms Act to each of the two appellants does not need any interference and the same is hereby confirmed. 29. The appellants Yogendra Yadav and Lalo Yadav have been convicted under Section 148 and the remaining seven appellants have been convicted under Section 147 of the Indian Penal Code. From the discussions in the foregoing paragraphs the remaining seven appellants namely Pokhan Yadav, Rambali Yadav, Rajo Yadav, Upendra Yadav, Narayan Yadav, Khubilal @ Subeda Yadav and Pawan Yadav have already been acquitted of the charge under Sections 302, 201 of the Indian Penal Code due to their participation in the commission of the offence having not been proved beyond reasonable doubts. Only two appellants namely Yogendra Yadav and Lalo Yadav are found to have committed the offence of the murder of the deceased. Since only two of the appellants are being convicted for the offences there does not remain any basis for conviction of any of the appellants either under Section 147 or 148 of the Indian Penal Code. Due to the reasons each of the two appellants namely Yogendra Yadav and Lalo Yadav is acquitted of the charge under Section 148 of the Indian Penal code and each of the remaining seven appellants is acquitted of the charge under Section 147 of the Indian Penal Code. Thus the conviction and sentence passed to the appellants under these counts are hereby set aside. 30. In the result the appeal No. 408 of 1999 is allowed. The appeal No. 504 of 1999 is allowed in part as indicated above. Prabhat Kumar Sinha, J. 31 I agree.