Judgment BRAJ NANDAN PRASAD SINGH, J. 1. Though prosecution was launched against as many as 26 number of accused persons, two having died during pendency of the trial, trial proceeded against 24 number of accused persons and it seems that during pendency of appeal, as Nagendra Rai too was reported to be dead, the appeal having abated against him, continued against rest 23 appellants. 2. Broad features of the prosecution case, which have been elaborately spelt out in the judgment of the Court below, may be recapitulated with brief narrations. 3. It was Ram Chandra Rai (PW 7) who took recourse of police authority and rendered his fardbeyan before ASI Lallan Singh at Patori Police Station at 16 hours on 14th August, 1983, with accusation that on the fateful day, while he along with his father Lekh Narain Rai, brother Ram Pravesh Rai, Sheo Shankar Rai, and uncle Satyadeo Rai was taking pumping set to the field for transplanting paddy crops, he noticed a mob of 40-50 persons holding lethal weapons and firearms, proceeding towards them, and shortly after they reached there, they intercepted them and hurled abuses. It is alleged that on exhortation made by Damodar Rai, one of the appellants, they apprehending danger, proceeded towards the house of Jailal Rai. pursuant to which some people, from the mob, resorted to firing and those who suffered injuries, were Sheo Shankar Rai, when Damodar Rai took recourse to firing. It was alleged that Ram Pravesh Rai and Satyadeo Rai also suffered injuries when Ram Ekbal Rai took recourse to firing and all these three- dropped injured. As ill luck would have it, Dinesh Singh and Ganesh Singh to pacify the matter, and then, it is alleged that on exhortation made by Damodar Rai, there was shower of bullets, and apprehending danger, all of them took refuge in the house of jailal Rai. It was further alleged that they were dragged out from the house of Jailal Rai and were dealt blows with lethal weapons, causing injuries to Ram Naresh Singh. Dinesh Rai and Ganesh Singh. About Ram Naresh Rai, it was alleged that the assailants dragged him to the maize field of Dasrath Thakur and there too he was dealt blows and again they brought him east to the house of Jailal Rai and dropped him there. Dinesh Rai and Ganesh Singh. About Ram Naresh Rai, it was alleged that the assailants dragged him to the maize field of Dasrath Thakur and there too he was dealt blows and again they brought him east to the house of Jailal Rai and dropped him there. As the police happened to reach the place of occurrence, the mob began to disperse. However, in the process of their escape, both Sarjug Rat son of Prabhu Rai, and Sarjug Rai, son of Tilakdhari Rai and Nunu Rai were apprehended by the police with lethal weapons and they were taken into custody by the police. The injured, it is alleged, were taken to Patori hospital where Ganesh Singh succumbed to the injuries and after they were taken to Darbhanga Medical College Hospital. Dinesh Singh too succumbed to the injuries. The genesis of the incident behind the gruesome killing of the two deceased, as has been the prosecution version, was that since the members of the prosecution party did not participate in the feast organized on the eve of sradh of mother of Harbansh Rai, two of them had been brutally killed by them. 4. After police was set in motion. First Information Report was recorded at Tajpur Police Station, pursuant to which, investigation commenced. As has been stated, Lallan Singh, ASI (PW 16) alleges to have apprehended three of the assailants with lethal weapon, sent to them Patori hospital, and having partly conducted investigation of the case, made over charge to another Police Officer. In the eventual trial that commenced, the State examined altogether 20 witnesses and two of them while happened to be doctor, who held autopsy over the dead body of the two deceased, two were the Police Officers who partly contributed to the investigation of the case. The State also examined PWs 3, 6, 7. 8 and 9 who claimed to have sustained injuries in the transaction. The other host of witnesses examined by the State had shown themselves to be conversant with the incident and offending articles seized from the place of occurrence by the Police Officer were also produced before the Court at trial. 5. Defence of the appellants had been plain denial of entire accusation and they ascribed their false implication due to past animosity persisting between the parties since long. 5. Defence of the appellants had been plain denial of entire accusation and they ascribed their false implication due to past animosity persisting between the parties since long. The happening of the incident near the house of Jailal Rai was also strongly refuted by the appellants in view of the narrations made by some witnesses about the place of occurrence within the jurisdiction of village Siridalpur. near a lower primary school. However the Trial Court on appreciation of evidences placed on the record, treating PWs 3 to 5 and 16 credible, who claimed to be ocular witness to the incident while acquitted Damodar Rai. Ram Ekbal Rai and Daya Rai of the charges under Section 307, IPC, those who stood charged under Section 307/149, IPC also, were acquitted of the charges. In view of paucity of evidence on the record, those who were charged under Sections 338 and 426, IPC were also acquitted of the charges. However, 15 of the appellants suffered conviction under Section 302. IPC and were sentenced to suffer rigorous imprisonment for life and were also sentenced to pay a fine of Rs. 8000/- in default of which, they were to suffer further rigorous imprisonment for two years. Among the appellants Gonar Rai. Horil Rai, Ram Naresh Rai, Kameshwar Rai. Daya Nand Rai, Ram Ekbal Rai, Vishwanath Rai. Rameshwar Rai. and Rajendra Rai suffered conviction under Section 302/149, IPC and were sentenced to same term of imprisonment and were also sentenced to pay a fine of Rs. 2000/- in default of which, they were to suffer rigorous imprisonment for a term of six months. Appellants Damodar Rai Chandra Rai, Rabindra Rai, Budha Rai, Santlal Rai, Singhewar Rai, Arjun Rai, Gonar Rai. Kameshwar Rai, Daya Nand Rai, Ram Ekbal Rai and Rameshwar Rai suffered conviction under Section 148, IPC for which they were sentenced to suffer rigorous imprisonment for a term of two years. In the same fashion, Hari Rai. Nagendra Rai (since deceased). Kamal Rai, Surjug Rai, Mauje Lal Rai, Rabindra Rai. Yogendra Rai, Ram Prasad Rai alias Prasad Rai, Horil Rai, Ram Naresh Rai and Vishwanath Rai also suffered conviction under Section 147, IPC and they were sentenced to undergo rigorous imprisonment for one year. That apart. Damodar Rai, Chandra Rai. Gonar Rai. Kameshwar Rai, Daya Nand Rai. Nagendra Rai (since deceased). Kamal Rai, Surjug Rai, Mauje Lal Rai, Rabindra Rai. Yogendra Rai, Ram Prasad Rai alias Prasad Rai, Horil Rai, Ram Naresh Rai and Vishwanath Rai also suffered conviction under Section 147, IPC and they were sentenced to undergo rigorous imprisonment for one year. That apart. Damodar Rai, Chandra Rai. Gonar Rai. Kameshwar Rai, Daya Nand Rai. Ram Ekbal Rai and Rameshwar Rai suffered conviction also under Section 27 of the Arms Act and were sentenced to undergo rigorous imprisonment for three years with direction that all the sentences shall run concurrently. One-fourth of the fine levied against the appellants were directed to be deposited in the State treasury and. three-fourth of the fine was directed to be paid to the widow of the deceased Ganesh Singh and Dinesh Rai equally, and in case, they were not alive, quantum of fine payable to them was to be paid to the survivors of the deceased, 6. Volume of arguments were pressed on behalf of the appellants to assail the findings recorded by the Court below on numerous grounds, and it is sought to be urged at Bar that apart from that narrations made by even ocular witnesses, bristles with major contradictions, prosecution was also guilty of introducing distorted version about place of occurrence which makes bona fide of the prosecution case unworthy of credence. It is urged that in view of inherent infirmity that has crept in the evidence of ocular witnesses, who are suggested to be PWs 3 to 5, no reliance can be placed on them. As for credibility of the Investigating Officer, contention raised at Bar was that though even the Investigating Officer projected himself to be ocular witness to part of the incident, in view of infirmity that has crept in his version and also in the backdrop of attending circumstances of the case, there did not appear to be occasion for the Investigating Officer to be present there and witness the incident. Conviction of 15 appellants under Section 302. Conviction of 15 appellants under Section 302. IPC was also sought to be assailed, there being no clinching evidence against them about they being killer of the two deceased, and it is also urged that though PW 3 had not made any narration either about his assailant or the two deceased, PWs 4 and 5, who were neither injured nor their presence was disclosed in testimony of PW 3, had saddled some of the appellants to be assailants of the deceased, and in view of these infirmities, it is urged that credibility of PWs 4 and 5 was open to question and they did not deserve credence. 7. Before we appreciate the lucid arguments advanced on behalf of the appellants, pertinent it is to analyse evidence of the witnesses on whom the lower Court too had placed reliance. Broadly the witnesses who had demonstrated their familiarity on material part of incident, can be classified in two groups. Now while adverting to the first set, we proceed to analyse narrations made by Ram Naresh Singh (PW 3). The witness states at trial that he was working along with his brother Dinesh Singh and Ganesh Singh in maize field, north east to the house of Jailal, when he heard loud sound near the house of Jailal Rai. and when he along with his brother was chased by the mob, he took refuge in the house of Jailal Rai, but the mob broke open the door planks of the house of Jailal Rai, dragged out them from the house, assaulted them, and while leaving Ganesh Singh and Dinesh Singh there, took him to the maize field and assaulted him there too, and again brought him back and dropped, east to the house of Jailal Rai. The Police Officer who happened to come there, nabbed both Sarjug Rai and Nunu Rai and also seized lethal weapon and lathi from their possession. Police took all three of them to Patori hospital and from there they were taken to Darbhanga hospital. Both Ganesh Singh and Dinesh Singh had succumbed to the injuries sustained by them. Dilip Narain Singh (PW 4) and Ram Bilas Singh (PW 5). who projected themselves to be ocular witnesses of the incident, had made similar narrations about they too working in the field, when a mob came and chased them, pursuant to which they took refuge in the house of Jailal Rai. Dilip Narain Singh (PW 4) and Ram Bilas Singh (PW 5). who projected themselves to be ocular witnesses of the incident, had made similar narrations about they too working in the field, when a mob came and chased them, pursuant to which they took refuge in the house of Jailal Rai. from where they were dragged out and assaulted, and at this moment we may refer to the testimony of Lallan Singh (PW 16) who too claimed to have visited place of occurrence on receipt of information about one Prabhu Rai having sustained gun shot injuries. He stated to have noticed a mob making good escape and in that process, the claimed to have apprehended Sarjug Rai son of Tilakdhari Rai, Sarjug Rai son of Prabhu Rai, and Nunu Rai. with lethal weapon and hard blunt object. The Police Officer stated to have taken the injured to Patori hospital, prepared injury report, visiting place of occurrence again, recorded fardbeyan of Ramchandra Rai, and prepared inquest report. The Police Officer stated to have noticed signs of dragging towards maize field and seized blood stained wearing apparels of the deceased. 8. Now adverting to the other set of evidence, we come across narrations made by Leku Narain Rai (PW 6). Though he too states about witnessing a mob but it was near the lower primary school in village Siridalpur where there is also a Chamartoli. He states to have gone to the house of Jailal Rai where he suffered gun shot injuries, allegedly when Gonar Rai took recourse to firing. We may, however, take notice of the fact that none of the witnesses examined by the State had ever made any narration about Gonar Rai taking recourse to firing causing injury to Lekh Narain Rai. Even PWs 4 and 5, who claim to have witnessed the assailants of Ram Naresh Rai. Dinesh Singh and Ganesh Singh, did not state about Gonar having fired shot, causing injuries to Lekh Narain. The other witness Ram Chandra Rai (PW 7) is not at par with other witnesses as he happens to be maker of the fardbeyan, and narration made by this witness at trial, did suggest that he noticed a scuffle near the house of Jailal Rai. between the people of village Bandaha and Siridalpur, exchanging brick bats. The other witness Ram Chandra Rai (PW 7) is not at par with other witnesses as he happens to be maker of the fardbeyan, and narration made by this witness at trial, did suggest that he noticed a scuffle near the house of Jailal Rai. between the people of village Bandaha and Siridalpur, exchanging brick bats. He states to have suffered injuries from the brick bat and claims to have identified only 8 of 27 accused persons against whom he had launched prosecution and without losing any moment, we notice that though Ram Chandra Rai (PW 7) was maker of the fardbeyan he had resiled from his earliest version, which was at variance with his evidence in Court. That apart, he does not claim to have gone through the recitals of the First Information Report to be of his own, as while the Police Officer was recording statement of persons of village Bandaha and Siridalul. he was made to put his LTI on them. Contrary to the assertions made by PWs 3 to 5, this witness states a different story about scuffle between people of two villages. That apart, assertion made by this witness in his earliest version about Dinesh Singh, Ganesh Singh and Ram Naresh Rai on being chased, taking refuge in the house of Jailal Rai and the appellants breaking open door planks of the house, dragging them out and assaulting, is conspicuously wanting in narrations, which he made at trial. Though he too was an eye-witness, he did not attribute explicitly appellants, assaulting them, and to crown all though occurrence took place in broad day light, he did not even identify his own assailant. The other witness examined by the State was Ram Pravesh Rai (PW 8) and Shiv Shankar Rai (PW 9) who hail from village Siridalpur. Though both the witnesses claimed to be injured, they were tendered by the State. However, it has come in their evidences that they noticed people of both the villages exchanging brick bats and fire arms near Chamartoli in village Siridalpur, which was adjacent to the lower primary school. As has been stated, both the witnesses stated to have suffered injuries on their persons. 9. However, it has come in their evidences that they noticed people of both the villages exchanging brick bats and fire arms near Chamartoli in village Siridalpur, which was adjacent to the lower primary school. As has been stated, both the witnesses stated to have suffered injuries on their persons. 9. Now we may advert to the evidence of Ram Naresh Rai (PW 11) and he too states to have noticed people of Bande and Siridalpur, and when villagers of Bande chased villagers of Siridalpur, they came near Chamartoli where there was exchange of brick bats and firing between them. Dinesh Rai (PW 12) hails from village Siridalpur and though he too claims to have suffered injuries in eyes, narrations made by this witness would show that there was animosity between the villagers of Bande and Siridalpur. The other witnesses are Mahesh Rai (PW 13) and Ganesh Rai (PW 14) and these two witnesses stated about exchange of brick bats and strained relationship between the people of villages Bandana and Siridalpur. This is significant to notice that these two witnesses were suggested to be the witnesses to the seizure of lethal weapon and hard and blunt object, made by Lallan Singh (PW 16) from possession of Sarjug and Nunu, these two witnesses without making any positive statement on this issue, were tendered by the State. We have noticed that even signature of these witnesses on the seizure memo was not brought on the record by the State. The analysis of evidences of these witnesses, who have narrated a different version not only about place of occurrence but also manner of occurrence did not say about any casualty though it is admitted that Dinesh Singh and Genesh Singh succumbed to the injuries pursuant to receipt of injuries by them. 10. W may also take notice of narrations made by Investigating Officer who is Brij Nandan Singh (PW-17), who states to have taken charge from Shri Lallan Singh (PW 16). He states to have recorded statement of witnesses and on conclusion of inquiry laid charge-sheet before the Court 11. Out of the two doctors examined by the State, Dr. 10. W may also take notice of narrations made by Investigating Officer who is Brij Nandan Singh (PW-17), who states to have taken charge from Shri Lallan Singh (PW 16). He states to have recorded statement of witnesses and on conclusion of inquiry laid charge-sheet before the Court 11. Out of the two doctors examined by the State, Dr. R.P. Mishra (PW 15) stated to have held autopsy over the dead body of Ganesh Singh and the doctor noticed 12 stitched wounds on different parts of his person, apart from one swelling, and the doctor too, without making any explicit finding about weapon with which these injuries were caused, would make omnibus statement that all these injuries were caused by sharp cutting weapon and lathi Though the doctor had noticed stitched wound on the deceased, it is not in dispute that the doctor, who clinically examined the injured, had not been examined by the State. 12. Now coming to the finding recorded by Dr. A.K. Kishore (PW 18), he noticed only two incised wounds, one abrasion and one bruises on the dead body of Dinesh Prasad Singh, contrary to the assertions made by witnesses that both the deceased and Ram Naresh Singh were assaulted by large number of persons, who dealt blows on them. Damodar Singh (PW 20) produced scized articles at trial. Fairly, it was admitted by him that on most of the seized articles, papers pasted on them did not bear signature of the Police Officer, and that apart, on many of them even there was no pasting of any paper to suggest that these were exhibits of a particular case. Defence too has chosen to examine one witness obviously to suggest persisting enmity between the parties and the Trial Court too in its finding has noticed that, in view of admission made by prosecution witnesses, defence witness, and also recitals made in the First Information Report, factum of enmity between the parties was an admitted fact. 13. The broad feature of the prosecution case, which we have noticed, had been that shortly after Ganesh Singh, Dinesh Singh and Ram Naresh were chased, they took refuse in the house of Jailal. However, the assailants had broken open the door planks, dragged these three persons from the room and assaulted them in the sahan of Jailal Roy. 13. The broad feature of the prosecution case, which we have noticed, had been that shortly after Ganesh Singh, Dinesh Singh and Ram Naresh were chased, they took refuse in the house of Jailal. However, the assailants had broken open the door planks, dragged these three persons from the room and assaulted them in the sahan of Jailal Roy. However, said Jailal Roy frustrates the prosecution by negativing this occurrence before his house. If this witness was to be given any credence, no occurrence ever took place near his house neither door planks were broken nor the injured/deceased were dragged out from the house for assaulting them in this so/ion. There has been no objective finding of the Police Officer even about there being any marks of violence at the house of Jailal Roy. 14. A good number of witnesses stated at trial, which he have just noticed, that in a boundary dispute villagers of Bande and Siridalpur had assembled on the material date of incident near Chamartoli adjacent to the Primary school in village Siridalpur and they exchanged brick bats and firing and it is not unlikely that two persons sustained fatal injuries on their person. We find that all these material facts were suppressed by the State. 15. Disturbing features of the prosecution case, which have come to our notice, are. however, numerous and we have just noticed them. Description of the places of occurrence given by two sets of witnesses were quite at variance. Ram Chandra Rai (PW 7), who was maker of fardbeyan, as has been noticed, has resiled from his earliest version and even disowned the recitals made by him in the First Information Report. The other infirmity that has crept in the prosecution case was that though PWs 3. 6. 7. 8 and 9 were shown to be injured, neither the doctor was examined nor any injury report was ever placed on the record, though the Police Officer emphatically stated before the Trial Court about having prepared the injury report and sending the injured to Patori Hospital where some of them were also admitted as indoor patient. We are conscious of the fact that the Trial Court has acquitted those charged under Sections 307 and 307/149, IPC but the infirmity that has crept in the prosecution case, has persuaded us to believe that their evidence were not free from blemishes to deserve credence. We are conscious of the fact that the Trial Court has acquitted those charged under Sections 307 and 307/149, IPC but the infirmity that has crept in the prosecution case, has persuaded us to believe that their evidence were not free from blemishes to deserve credence. Narration made by PW 3, which we have just noticed, also suffers from serious infirmity as he being injured did not name either his own assailant or even the assailants of the deceased. Though Sheo Shankar Rai, Ram Pravesh Rai, Satyadeo Rai and Lekhu Rai are shown to have suffered injuries in the same transaction, the witness did not name their assailants too. This witness happens to be none else but the brother of the two deceased and it was most unlikely that had he been ocular witness, he would not name the assailant. The evidence of Dilip Narain Singh (PW 4) too suffered serious infirmity. The entire narration made by the witness was challenged by the defence, they being not parallel to the statement rendered before the police, and that apart, this witness admits in most unequivocal terms about he having deposed against Rameshwar Rai in a case. In view of these infirmities and the witness having not made parallel statement before the police, he did not deserve credence. There is one more redeeming feature which persuaded us to reject his testimony. Though he was none else but kith and kin of PW 3, but neither his name transpired in the First Information Report as witness nor even PW 3 states about his presence during the incident. We have noticed similar infirmity in narrations made by Ram Bilas Singh (PW 5). Narrations made by this witness about he working at the relevant time in the maize field, and witnessing a mob which broke open the door planks of the house of Jailal Rai was seriously challenged by the defence, there being no such parallel statement made before the police, and that apart, having analysed evidence of the Investigating Officer, who was confronted with narrations made by these witnesses, we find that this witness too did not make narration before the Investigating Officer about Chandar Rai assaulting the deceased with bhala, and similar infirmity has crept in his evidence also about Sarjug Rai, for which no parallel statement was made before the police. His evidence about complicity of Kamal Rai and Ravindra Rai too for assaulting the deceased and the injured, was wanting before the police and that apart, on his own showing, narrations made by all the witnesses do suggest that even though they were very much available before the Police Officer when Lallan Singh (PW 16) visited the place of occurrence and nabbed three assailants and took offending articles in his custody, their statements were not recorded by the Police Officer, and again on their own showing their statements were recorded by the Police Officer only after lapse of 4-5 days. Notwithstanding that PW 3 Ram Naresh Singh regained consciousness in Darbhanga Medical College Hospital, and all along, police was with him and he had been in senses throughout, his statement was not recorded by the police nor he volunteered to make any statement before the police though Police Officer states to have been searching the witnesses for recording their statements. Two places of occurrence, which have emerged in the testimony of witnesses of two sets, are not even adjacent to each other to even remotely suggest that the witnesses under wrong impression were making statement about there being two different places of occurrence as there has been statements of PWs 8 and 10 that the house of Jailal Rai. which was suggested to be one of the places of occurrence lies at a considerable distance of about 1/2 km. from Chamartoli, which lies within the jurisdiction of village Siridalpur. 16. Though Lallan Singh (PW 16) claims to be at the place of occurrence amidst occurrence pursuant to which three of the assailants were taken into custody with the offending articles in their possession, regard being had to the time and also distance between Police Station and the house of Jailal Rai. we do not feel persuaded to come to the conclusion about arrival of the Police Officer at the place of occurrence, so as to make apprehension of the three assailants, and that apart, rightly it is urged at Bar that assailants were not expected to stay at the place of occurrence after the incident for their apprehension by the Police Officer. As we have noticed though offending articles were shown to have been seized by the Police Officer from possession of their persons, barring testimony of the Investigating Officer about seizure of these offending articles, there has been no testimony of other witnesses, as those who were stated to be witnesses to the seizure memo, were tendered by the State. Though PWs 4 and 5 happened to be none else but the family member of the deceased and Ram Naresh Rai, on their showing, they had not even visited hospital along with the injured. 17. Though 15 appellants suffered conviction under Section 302. IPC obviously in view of the narrations made by PWs 4 and 5 about Damodar Rai. Hari Rai, Chandra Rai, Nagendra Rai, Ravindra Rai. Kamal Rai, Bodhi Rai, Santlal Rai, Suryug Rai, Singheshwar Rai, Arjun Rai, Maujelal Rai. Ravindra Rai, Yogendra Rai, and Ram Prasad Rai being the assailants of the deceased, if narration made by PW 4 was excluded from consideration, in view of infirmity that has crept in his evidence and no such parallel statement having been made before the police, there remains solitary testimony of PW 5 attributing these appellants to have assaulted Dinesh Singh or Ganesh Singh, and since evidence of PW 5 too suffered serious infirmity, as we have noticed, we find it quite hazardous to place reliance on it. Even finding of the doctor too, we have noticed did not explicitly suggest such number of corresponding injuries on the person of the deceased for which the mob was shown to have dealt blows on them. Similar logic would apply in case of those who also suffered conviction under Section 302/149, IPC. 18. True it is that when there is direct evidence on the record, motive pales into insignificance. We have noticed that behind gruesome killing of two deceased, motive assigned by the State appears to be too trifling as the appellants were not expected to have taken recourse to violence for such petty reasonings. 19. 18. True it is that when there is direct evidence on the record, motive pales into insignificance. We have noticed that behind gruesome killing of two deceased, motive assigned by the State appears to be too trifling as the appellants were not expected to have taken recourse to violence for such petty reasonings. 19. Having given our- anxious and deepest consideration to the evidence placed on the record and also rival contentions raised at Bar on behalf of the appellants and the State, we find that the findings recorded by the Court below convicting the appellants on different counts and sentencing them to different terms, are not sustainable in law and the findings as such are set aside and the appellants are acquitted of the charges levelled against them. Appellants Mauze Lal Rai. Yogendra Rai, Ram Prasad Rai alias Prasad Rai, Ravindra Rai, Saryug Rai, Arjun Rai and Singeshwar Rai of Cr. Appeal No. 182 of 1998 and appellants Damodar Rai, Ram Chandar Rai, Hari Rai, Ravindra Rai, Kamal Rai. Bodhi Rai and Santlal Rai of Cr. Appeal No. 295 of 1998. who are in custody, are directed to be set at liberty forthwith, if not wanted in any other case. All the appeals accordingly succeed. Those two are on bail are discharged from the liability of their bail bonds. PRABHAT KUMAR SINHA, J. 20 I agree.