JUDGEMENT PRABHAT KUMAR SINHA, J.: - To criticise one particularly if he is on inimical terms can prove fatal appears to be lesson coming out of the prosecution case. 2. The factual matrix as coming out of the fardbayan recorded by Sheo Shankar Yadav on 29.8.1990 at 11.30 A.M. in his village is that on 29.8.1990 the informant was at the Darwaza of his uncle Jagdish Yadav, along with Saukhi Yadav, Barahmdeo Yadav, Chhathu Sah, Yogendra Yadav and Rajendra Yadav and they were discussing the terror unleashed by the appellant Bishundeo Yaday @ Paharia, which he over heard and objected to such talks saying that whosoever women came to his pond, he would take away her Saree at which the participants of discussion retaliated saying that if any women of the appellants house crossed through the ridges of their fields, she would also loose her saree. The appellant then threatened them of dire consequences and went away but only after half an hour he came back with an unlawful assembly consisting of other appellants and many others, variously armed and started pelting stons. Amiri Lal Yadav, in the meantime, ordered for killing at which appellant Kishundeo Yadav fired at the informant and Barahmdeo Yadav which shot hit Barahmdeo Yadav but the informant could save himself by hiding behind the she buffalo which animal also sustained pellet injuries. Barahmdeo Yadav fell down in the cattle shed of Jagdish Yadav and, thereafter, succumbed to his injuries. Appellant Amiri Lal Yadav hit with the back side of Pharsa at the head of Saukhi Yadav causing injury. There was another firing which injured Chathu Sah in his leg. By stone pelting and lathi Ram Lakhan Yadav as well Jagdish Yadav also sustained injuries whereafter the accused fled away. The informant learnt that one Ram Chartira Yadav, son of Bilat Yadav, had exhorted the accussed for filing a false case at which Amiri Lal Yadav wanted to put the cattle shed to fire but someone shouted about arrival of the police which prevented him from committing mischief. The informant also made it clear that the deceased was his cousin. 3. The informant also made it clear that the deceased was his cousin. 3. From suggestion thrown to P.Ws 4 and 5, both full brothers, P.W. 5 being the informant, the defence, as would appear, was that it was Sheo Shankar Yadav, the informant himself, who had killed Barahmdeo Yadav elsewhere whereafter they had put the dead body in the cattle shed of Jagdish Yadav and, because of previous enmity, the accused persons were implicated in the case. 4. Out of ten witnesses examined, P.W.1, Rajendra Prasad Yadav, brother of the deceased, appeared and supported the prosecution case fully and on that day he was partly cross-examined. Further cross examination was deferred but it appears that thereafter he never turned up. The prosecution brought on the record of the lower court that this witness as well those witnesses named in the charge-sheet who were also injured as per allegations, had been threatened by the defence side and, as such, had not been coming to the witness box. P.W. 5 in his evidence also claimed that he had also filed a petition for cancellation of bail of the accused on that account. This aspect has been fully discussed in the Judgement of the lower court in paragraphs 38 to 41 where it was also pointed out that besides those witnesses, another witness named in the charge-sheet and also a brother of the deceased, namely, Bhogendra Yadav, for similar reason was not coming to depose. 5. P.W. 1 was examined in chief and partly cross-examined, hence his evidence is very much on the record, which simply cannot be buried. However, while considering his evidence it also has to be taken care of that, the defence having been denied opportunity to fully cross examine him, his evidence is not considered in the aid of the prosecution in away so as to prejudice the defence. Out of other witnesses P.W. 8 Md. Kalamuddin is the Investigating police officer whereas P.W. 6, Dr. Indra Nand Jha being a Veterinary officer, (T.V.O.), had examined the injuries caused to the she beffalo. P.W.10 is a formal witness, an Advocate's Clerk, who has proved four injury reports, marked Exhibits-12 to 12/3. Out of other witnesses P.W. 8 Md. Kalamuddin is the Investigating police officer whereas P.W. 6, Dr. Indra Nand Jha being a Veterinary officer, (T.V.O.), had examined the injuries caused to the she beffalo. P.W.10 is a formal witness, an Advocate's Clerk, who has proved four injury reports, marked Exhibits-12 to 12/3. Rest of the witnesses, namely, P.W.2, Nagendra Prasad Yadav, P.W.3 Jang Bahadur Yadav, a relative of the informant as also of the accused persons, P.W. 4 Ram Lakhan Yadav and P.W. 5 Sheo Shankar Yadav, both cousins of deceased have come out in support of the prosecution case. In so far as P.W. 2 is concerned, he also is a distant relative, but claimed that there was difference of many generations in between grand father of Sheo Shankar Yadav, and of this witness. 6. In this case appellant Kishundeo Yadav was sentenced to undergo rigorous imprisonment for life under section 302 of the Indian Penal Code ("the Code", in short) and two years rigorous imprisonment under section 27 of the Arms Act, but no separate sentence was awarded to him though was convicted also under section 302 read with section 149 of the Code. The rest four appellants have been sentenced to undergo rigorous imprisonment for life under section 302 read with section 149 of the Code and rigorous imprisonment for six months under section 323 of the Code, all sentences ordered to run concurrently. 7. First of all I will take up the conviction of four appellants, namely, Amiri Lal Yadav alias Laddu Yadav under section 323 of the Code since this has a bearing upon their conviction under section 302 read with section 149 of the Code. 8. As per the first information report, after Kishun Deo Yadav alias Paharia had fired injuring Barahmdeo Yadav, Amiri Yadav had hit Saukhi Yadav on his head with the back portion of Pharsa, and Jagdish Yadav as well Ram Lakhan Yadav and were injured by lathi and stone pelting. As per allegations the accused persons on their reaching the place of occurrence had first pelted stones but it is clear from the evidence on record that no one was injured having been hit by a stone. As per allegations the accused persons on their reaching the place of occurrence had first pelted stones but it is clear from the evidence on record that no one was injured having been hit by a stone. P.W.1 has claimed that Amiri Lal Yadav had hit at the head of Saukhi Lal Yadav, without naming the weapon, severing the skin though he had said earlier that Amiri Lal Yadav had pharsa in his hand while describing the weapons of the accused. He has not specifically aid that from which side of weapon or by what mean Amiri Lal Yadav had hit the head of Saukhi Lal Yadav. This witness has said that Jagdish Yadav and Ram Lakhan also had received injuries, further clarifying that Ram Chander Yadav had thrown Pharsa at Jagdish Yadav injuring him and appellants Lattu Yadav alias Laddu Yadav and Vijaya Yadav had assaulted Ram Lakhan Yadav. 9. P.W. 2 said that Amir Lal Yadav had hit Saukhi Yadav with the back of Pharsa and Kishun Deo Yadav alias Paharia fired again injuring the she buffalo as well Chathu Sahu. According to this witness, Ram Chander Yadav had thrown Pharsa injuring Jagdish Yadav whereas Vijaya Yadav and Lattu Yadav alias Laddu Yadav has assaulted Ram Lakhan Yadav with lathi. 10. P.W. 3 is not a witness to the occurrence as he told the court that when, on hearing hulla, he reached the place of occurrence he saw the accused persons, including the appellants, fleeing away and Barahmdeo Yadav lying with fire arms injury, claiming that he also saw Saukhi, Jagdish, Ram Lakhan and Chhathu Sahu injured. 11. P.W,4 supported that Amiri Lal Yadav had hit by the back side of Pharsa on the head of Saukhi Yadav and the second firing by Kishun Deo Yadav had hit the she buffalo, and Chhathu Sah in his leg whereas Vijaya Yadav and Lattu Yadav gave one lathi blow, each, on his wrist. He said that Ram Chandra Yadav threw the Pharsa which injured a finger of Jagdish Yadav, Lakewise, P.W. 5 has supported the allegation against Amiri Lal Yadav as also how Chhathu Sah received pellet injury in his leg. He only claimed that Ram Lakhan Yadav and Jagdish Yadav were injured by lathi and pelting of stones. He said that Ram Chandra Yadav threw the Pharsa which injured a finger of Jagdish Yadav, Lakewise, P.W. 5 has supported the allegation against Amiri Lal Yadav as also how Chhathu Sah received pellet injury in his leg. He only claimed that Ram Lakhan Yadav and Jagdish Yadav were injured by lathi and pelting of stones. Therefore, it appears that from the first information report up to the evidence of P.W. 5, somewhat different accounts have been given about causing of the injuries upon the injured. 12. The attention of the witnesses towards their statements under section 161 of the Code of Criminal Procedure was drawn and PW. 8, the Investigating Officer was also asked questions to confirm those contradictions or omissions. P.W. 8 admitted that P.W. 2 had not said before him that Ram Chander Yadav had thrown Pharsa injuring Jagdish Yadav nor he had told that Vijaya Yadav and lattu Yadav alias laddu Yadav had assaulted Ram lakhan Yadav with lathi. Likewise P.W. 8 admitted that Ram lakhan Yadav, P.W. 4, did not tell him that Ram Chander Yadav had thrown Pharsa injuring Jagdish Yadav. But P.W. 4 also had told the police officer that he was assaulted in the wrist of both his hands. Moreover, no injured witness has turned up to support the prosecution case. The injury reports have been proved by a witness who was a Clerk to an Advocate. Mere bringing the injury reports on the record in such manner when the defence is denied altogether the opportunity to cross-examine the doctor on the injuries said to have been received by the injured persons, would not help the case of prosecution. No doubt, it has come on record that the witnesses were threatened hence they did not come to the Court to depose as witnesses, but their absence and inherent weakness in the evidence of witnesses would definitely weaken the case of the prosecution particularly because an injured witness is the most competent witness to say about his injuries and as to how he received those. Moreover, it has come in evidence that Ram Chander Yadav had thrown Pharsa injuring Jagdish Yadav. No witness has said that while fleeing away that Pharsa was picked up by any accused. Moreover, it has come in evidence that Ram Chander Yadav had thrown Pharsa injuring Jagdish Yadav. No witness has said that while fleeing away that Pharsa was picked up by any accused. Neither the eye-witnesses nor the Investigating Officer has claimed to have picked up any Pharsa from the place of occurrence though it has come that from the houses of two of the accused Pharsas were recovered but there is nothing on the record to show that there was any sign on any such Pharsa indicating its use in the occurrence. 13. This being so, I am of the opinion that it was not safe to convict these appellants under section 323 of the Code. Therefore, the appellants of the two appeals (except appellant Kishun Deo Yadav,), as they deserve benefit of doubt, are acquitted so far charge under section 323 of the Code is concerned. 14. Now, I will discuss the allegation in the first information report that it was appellant Amiri Lal Yadav who had ordered for the killing. The evidence on this account may be seen. P.W. 1 has only said that Amiri Lal Yadav had given order at which Kishun Deo Yadav had fired P.W. 2 supported that Amiri Lal Yadav had ordered for murder. As already seen, P.W. 3 was not there when actual occurrence had taken place. P.W. 4 said that Amiri Lal Yadav shouted Keya Dekhte Ho, Hatya Kar do. P.W. 5 also supported that Amiri Lal Yadav had ordered for murder. In so far as P.W. 1 is concerned, he could be cross-examined only in brief. It is clear that he could not be cross-examination on his version relating to occurrence. Therefore, his evidence in this context cannot be considered in favour of the prosecution. 15. The Investigating Officer in his evidence said that P.W. 2 had not told him that Amiri Lal Yadav had ordered for killing. The Investigating Officer, in relation to the evidence of P.W. 4 said that the witness had not told him that Amiri Lal Yadav had ordered for committing murder. 16. Therefore, it will appear that out of three witnesses (P.Ws 2, 4 and 5) two had not even said before the Investigating Police Officer that Amiri Lal Yadav had ordered for committing the murder. Though this is an omission but such a vital one which has the force of contradiction. 16. Therefore, it will appear that out of three witnesses (P.Ws 2, 4 and 5) two had not even said before the Investigating Police Officer that Amiri Lal Yadav had ordered for committing the murder. Though this is an omission but such a vital one which has the force of contradiction. In that view of the matter, it is difficult to accept the prosecution allegation that Kishun Deo Yadav had fired after Amiri Lal Yadav had ordered him to do the killing. 17.I have discussed these matters first because the learned lower court appears to have convicted, apart from Kishun Deo Yadav alias Paharia, only those accused under section 302 read with section 149 of the Code against whom there was allegation of some overt -act. The learned lower court, out of twenty four accused who had faced trial, had acquitted all others taking into account that there was no specific overt-act against them. However, the learned lower court should have examined the matter from the angle as to whether or not the accused persons could be said to have common object to murder Barahmdeo Yadav and if they had, they could have been convicted for murder with the help of section 149 of the Code but, if not, they could not have been convicted as such though, for committing separate and individual offences, if any, they could have been convicted. If the learned lower court was of the opinion that others were members of unlawful assembly armed with simple or dangerous weapons with the common object even of causing injuries or causing any other offence, they could have been held guilty and convicted under section 147 or 148, as the case may be, of the Code. The accused, however, in the trial court were not separately charged either under section 147 or under section 148 of the Code. 18. Coming to the question as to whether the appellants apart from Kishun Deo Yadav had common object of killing Barahmdeo or any of the members of the assemblage near the house of Jagdish Yadav, the allegation as well the evidence is that after altercation with them Kishun Deo Yadav alias Paharia had gone away towards his house telling them that they would be taught a lesson. Evidence is that after some time he came back with a mob some members of which were variously armed. Evidence is that after some time he came back with a mob some members of which were variously armed. The allegation of firing the fatal shot is only against Kishun Deo Yadav and the witnesses have also named many other accused who were empty handed. According to the witnesses some had Pharsa, some had Lathi whereas Sifat Lal Yadav had a pistol in his hand. Witnesses, when asked about assault by others upon the deceased, admitted that none else had touched him with any weapon. Sifat Lal Yadav and others who had weapons in their hands could have attributed to the killing by using their weapons against Barahmdeo Yadav, or against anyone else with a view of causing such injuries which might have resulted in death. But the clear evidence is that assault upon Barahmdeo Yadav was made only by Kishun Deo Yadav. In so far as the overt acts attributed to other co-accused, who are appellants, are concerned, as already seen those could be viewed only with doubt. 19. Some of the accused persons, about whom it has come on the record that they were involved in cases against the prosecution side, had no immediate reason to kill anyone, with exception of Kishun Deo Yadav who only sometime back had an altercation with the informant and others having heard that they were talking about his misdeeds. I find nothing in the evidence of witnesses so as to impel me to take the view that any of the appellants other than Kishun Deo Yadav had an object of killing Barahmdeo Yadav. This being so, I am of the opinion that appellants, namely, Amiri Lal Yadav, Vijaya Yadav, Lattu Yadav alias Laddu Yadav and Ram Chander Yadav could not have been convicted under section 302 read with section 149 of the Code. Therefore, they are acquitted of that charge. 20. May be that those who had come with weapons in their hands could have been found guilty under section 147 or 148 of the Code as while coming to the place of occurrence they must have known that an attack was likely to be made from the prosecution side and had prepared themselves for that and as per evidence, they had started pelting stones on coming to the place of occurrence. But, I do not think it proper to go into commission of such minor offences after more than twelve years of the occurrence. 21. Now the point that remains to be decided is as to whether appellant Kishun Deo Yadav could have been convicted as already mentioned, in view of the evidence on record as well in view of the findings, as above. 22. P.W. 1, while supporting other aspects of the prosecution case also claimed that Kishun Deo Yadav had fired a shot which caused death of Barahmdeo Yadav and that other shot fired by Kishun Deo Yadav had also injured Chhathu sah and the she buffalo. Likewise P.W. 2 said that the first fire of Kishun Deo Yadav had hit Barahmdeo Yadav and the second fire had injured Chhathu Sah and the she buffalo. Evidence of P.W. 3 is relevant in this context only to the extent that he had seen Barahmdeo Yadav, when he came to the place of occurrence, injured, having received fire-arm injury, lying in Oriyani, who was taken into the cattle shed (of Jagdish Yadav). P.W. 4 in this context claimed the same stating that firing of Kishun Deo Yadav had hit Barahmdeo Yadav (deceased) and that second firing had injured Chhathu Sah in leg and the she-buffalo of Jagdish Yadav. The informant, P.W. 5, as claimed in his first information report, about this particular happening said that Kishun Deo Yadav had fired a shot upon him and Barahmdeo Yadav which hit Brahmdeo Yadav but since he had hid himself behind the she buffalo, the she buffalo also was injured. He claimed that the injury to Barahmdeo Yadav caused his death. He further said that one more firing was done which hit Chhathu Sah in his leg and also injured the she buffalo. 23. P.W. 9, T.V.O., who had examined the injuries upon the she buffalo of Jagdish Yadav said that he had detected four pellet injuries on the right posterior part, on different points, of the she buffalo which were visible from outside and were removed with the help of finger. He further said that the she buffalo was produced by the owner who had accompanied a Police Personnel. No doubt in cross-examination he said that a pellet could be pushed inside the body of a she buffalo with the help of a finger. He further said that the she buffalo was produced by the owner who had accompanied a Police Personnel. No doubt in cross-examination he said that a pellet could be pushed inside the body of a she buffalo with the help of a finger. But this is just a piece of conjecture whereas there is sufficient evidence on record that the she buffalo had received pellet injuries by the firings of the appellant Kishun Deo Yadav. 24. The evidence about firing by this appellant has been assailed by the learned counsel on various grounds. Learned counsel submitted that even the place of occurrence was not established, pointing out that the medical evidence was that copious blood had oozed out of the body of Barahmdeo but the Investigating Officer in his evidence did not substantiate that. It was claimed that in the evidence it has come that the deceased fell down after receiving the gun shot but thereafter was taken inside the cattle shed of Jagdish, hence if enough blood had come out of the wounds, the blood should have been found not only at the place where he had fallen down but also inside the cattle shed and blood drops would naturally have been found in between the places where he had fallen down and ultimately where he was kept. 25. As we will see, the Investigating Police Officer does not appear to have investigated the case as he should have. However, this witness has said, about inspection of the place of occurrence, that where the deceased was said to have fallen down, he had seen blood spots. He also said that from this place the injured was said to have been taken to the cattle shed by the villagers where he had died after a few minutes. He said that he had found the dead body lying on gunny bag and mat. He further said (paragraph 26) that the blood drops and the blood spots that he had found at Sahan land were not fit to be lifted hence he could not seize that. He admitted that he did not write in the diary as to on how much of the Sahan land the blood drops and spots were found by him. He further said (paragraph 26) that the blood drops and the blood spots that he had found at Sahan land were not fit to be lifted hence he could not seize that. He admitted that he did not write in the diary as to on how much of the Sahan land the blood drops and spots were found by him. He also admitted that he had not even mentioned in the case diary as to whether or not in the way upto the cattle shed blood drops had fallen down. He also admitted (Paragraph 27) that he did not seize the gunny bag or the mat on which the dead body was kept. However, the Investigating Police Officer had noted that the stone pieces in large number were found thrown at the Sahan land and he also found the marks of stone falling on the earth. The case of the prosecution, as already seen, was that the accused persons on their coming had first pelted stones. This also establishes the place of occurrence. 26. Sri G.P. Jaiswal, learned Additional Public Prosecutor has argued that as per evidence a large number of people had come at the place of occurrence, therefore, due to trampling much of the blood could not have been seen on the land and pointed out the evidence of the Investigating Officer who had said that the blood spots .which were found were not fit to be lifted. 27. Moreover, the case of the defence is that it was the informant himself who had killed the deceased elsewhere and had brought the dead body there to implicate the accused persons/appellants. However, it does not appeal to reason that if a murder was committed elsewhere then why the informant, who admittedly was cousin of the deceased, would bring the dead body all the way to the house of Jagdish Yadav, who was his uncle as per evidence. Moreover, D.W.1, Chandra Bhushan Yadav has claimed to be an eyewitness to the murder of deceased by the informant and said that he saw that the deceased when he had reached to north of the house of Jagdish Yadav, was fired upon by Sheo Shankar Yadav and he fell down after which the informant and others took away the body towards the cattle shed of Jagdish. This evidence substantially supports the place of occurrence. This evidence substantially supports the place of occurrence. Evidence of the defence witnesses I will discuss later in detail. In view of the evidences discussed above. I do not find that, the place of occurrence as claimed by the prosecuion is under any cloud. For some laches in the investigation the prosecution case, if otherwise proved by evidence of witnesses, cannot be made to suffer. 28. It was contended by the learned counsel for the appellants that the parties were on inimical terms and in that regard pointed out evidence of P.W. 4, brother of informant who had said that he was a witness against the accused in a pending case in which the present informant was the informant. In that regard Exhibit-A and Exhibit-B have also been pointed out apart from other defence exhibits. Exhibit-A is certified copy of first information report lodged by mother of appellant against father of informant and others about occurrence of same day and Exhibit-B is the certified copy of the first information report lodged by the formant against appellant Amiri Lal and others for occurrence dated 14.7.1995. It was pointed out that in this case only inimical or interested witnesses have come forward to support the prosecution case but no independent witness, has supported the same. It also argued that P.W. 1, a relative of the deceased did not turn up for further cross-examination and another relative did not turn up at all, as already noticed. Argument was that those relatives of the deceased failed to turn up on coming to know that allegations were false. On the other hand, there is evidence on record that those two witnesses as well the injured persons did not come up because of threatening by the defence side which matter was also brought on the record of the lower court. 29. The claim of the prosecution in this regards does not appear to be reasonable. In any case, P.W.1 had turned up for his examination-in-chief and was also partly cross -examined. He fully supported the prosecution case. It may also be noted that this is the occurrence of the year 1990 whereas the P.W.1 took, the witness stand on 22.11.1993. 29. The claim of the prosecution in this regards does not appear to be reasonable. In any case, P.W.1 had turned up for his examination-in-chief and was also partly cross -examined. He fully supported the prosecution case. It may also be noted that this is the occurrence of the year 1990 whereas the P.W.1 took, the witness stand on 22.11.1993. The gap was time enough for him to know, in the meantime, as to whether or not the allegations were true but disappearance from the scene just after supporting the prosecution case does not show that realisation about the falsity of case had dawned upon him suddenly, after gap of those many years. 30. No doubt, it is a recognized fact that in many cases the witnesses particularly if they have previous enmity, have a tendency to add to the allegations and indulge into embellishments and, therefore, it is the responsibility of the courts to wean out those additions and embellishments and to decide the case on what the courts finds to be the grains of truth,. It was also argued on behalf of the appellants that since the prosecution case about many accused persons facing trial was not found to be true by the trial court, there was no reason why the same witnesses could not have falsely deposed against the appellants who were convicted. However, the doctrine of falsus in uno, falsus in omnibus has not found currency in judicial pronouncements, rather the accepted principle is weaning of the grains from the chaff. Whenever a doubt occurs about participation of some of the accused, or legally if they cannot be held responsible for an act they did not themselves committed, benefit of that would go to those accused but if the court finds the evidence on record against a particular accused to be reliable then, notwithstanding acquittal of other co-accused, he could be convicted. 31. Learned Additional Public Prosecutor placed before the court the case of Baitullah Vrs. State of U.P., A.I.R. 1997 S.C. 3936, in which their Lordships of the Apex court held that the evidence of interested witness could not be discarded on that ground alone, as it was normally accepted that a witness would not leave out real culprits and rope in innocent persons. State of U.P., A.I.R. 1997 S.C. 3936, in which their Lordships of the Apex court held that the evidence of interested witness could not be discarded on that ground alone, as it was normally accepted that a witness would not leave out real culprits and rope in innocent persons. However, it is accepted norm that when the witnesses are on inimical terms with the accused or are interested witnesses, their evidence would be evaluated very carefully. 32. Not even P.W.1 but even Jagdish Yadav who is said to be another relative of the informant and the deceased and who was injured and was a very important witness, had not turned up for evidence. These support the claim of the prosecution, right from the lower court, that witnesses did not turn up out of rear. In such circumstance, their non examination will not vitiate the prosecution case in so far as the allegation of murder by one of the appellants is concerned. Non-examination of injured witnesses at best will weaken the prosecution case so far allegations about causing injuries to them are concerned but in so far as allegation of murder is concered, in view of cogent evidence available on record of other witnesses, and in the circumstances discussed, that will not affect the prosecution case. 33. Other argument advanced was that though it has come in the evidence (P.W.4) that on the date of occurrence there were six males, three females and seven boys, the youngest being nineteen years old in the family of the deceased, there was no reason why after death of their kin they would not have gone to the police station to file the case instead of P.W. 5 coming forward to do that. However, the informant himself was a cousin to the deceased, murder having been committed at the house of his uncle, hence it was not unnatural if he turned up as informant. Moreover, he was a witness to the occurrence whereas none of the other immediate family members of the deceased are said to have seen the occurrence. Therefore, this point is not appealing. 34. Further argument was that P.Ws 2 and 3 could not be said to be eye-witnesses hence their evidences should be taken with a pinch of salt. 35. Moreover, he was a witness to the occurrence whereas none of the other immediate family members of the deceased are said to have seen the occurrence. Therefore, this point is not appealing. 34. Further argument was that P.Ws 2 and 3 could not be said to be eye-witnesses hence their evidences should be taken with a pinch of salt. 35. Obviously, P.W.3 has not claimed that he had seen the occurrence himsel but said that when on hearing hulla he went to the place of occurrence he saw the accused persons fleeing away and the deceased lying down with injury. Though he had not seen the occurrence but his evidence is supportive to the prosecution case. 36. It was pointed out that P.W. 2 had said that he was at the place of occurrence from 11.00 A.M. till the dead body was taken away as also that he had gone there on hearing hulla. It was also pointed out that P.W. 5 had said that after occurrence about fifty to sixty persons had assembled there, including PW.2, whom he also told about the incident. The argument was that if P.W. 2 had seen the occurrence, there was no need for P.W. 5 to narrate him the incident. This argument is misplaced. P.W. 5 only said that he narrated the incident to the people who had assembled there, most of whom must have come after the occurrence, and in that connection he said that P.W. 2 was also there. This rather sports the evidence of P.W. 2 that he was at the place of occurrence. P.W. 2 though has said that he went there on hearing hulla, he has narrated the actual occurrence including what overt-acts were committed by appellant Kishun deo Yadav. As per prosecution case the accused persons had first pelted stones at which time hulla must have been raised. The murder was committed thereafter. Therefore, I do not find any reason to doubt the testimony of P.W. 2 in this regard or to hold that he must have reached there after the occurrence had already taken place. 37. Learned counsels also argued that though altercation initially had taken place with the informant but this appellant did not fire at him. Therefore, I do not find any reason to doubt the testimony of P.W. 2 in this regard or to hold that he must have reached there after the occurrence had already taken place. 37. Learned counsels also argued that though altercation initially had taken place with the informant but this appellant did not fire at him. However, the evidence of the informant is that the appellant had fired both at the informant and the deceased but informant saved himself by hiding behind the she buffalo. 38. It was also argued that though there was allegation of two firings but only one empty cartridge was found there. The finding of even one empty cartridge at the place of occurrence goes a long way to support the prosecution case. There is definite and cogent evidence of witnesses on the record that this appellant had fired twice. Therefore, non -finding of the second empty cartridge, which might have been taken away by the accused or search about which might not have been conducted with more care by the Investigating Officer, is not a point which could discredit the entire prosecution case. 39. A point that has not been argued is that the doctor on the dead body had found multiple punctured wounds over right side auxiliary and anterior surface of the thorax over asternum. According to him, twenty three pellets were recovered from the body. The distance of firing has come to be twenty or twenty eight feet in the evidence. But it has also come in the evidence that all the pellets did not hit the deceased but had strayed. The evidence is that from the first, as well from the second, shots the pellet injuries were also caused to the she buffalo. It has not come that the deceased was quite near the she buffalo. Moreover, there might have been some confusion about the actual place from where the firing was done, because as per evidence many persons had come with appellant Kishun Deo Yadav. In view of reliable and specific evidence of witnesses that Kishun Deo Yadav had fired and killed Barahmdeo Yadav, this point as coming in the medical evidence will not come in the way. 40. In so far as appellant Kishun Deo Yadav is concerned, I find that on the record there is sufficent evidence to hold him gulty of killing Barahmdeo Yadav. 41. 40. In so far as appellant Kishun Deo Yadav is concerned, I find that on the record there is sufficent evidence to hold him gulty of killing Barahmdeo Yadav. 41. Desperate attempts have been made by the defence to unsettle the prosecution story in this regard by adducing evidence of two defence witnesses. The evidence of the main defence witness, D.W. 1 (Chandra Bhushan Yadav) appears to be quite unreliable. This witness claimed that the deceased was man of bad character who also had teased a girl in the family of Sheo Shankar Yadav and both the families were on inimical terms. It has already been noted elsewhere as to what was his evidence in support of the defence. However, in cross-examination this witness admitted that some of the accused of this case were also accused with him in another case and also that some of the accused were his cousins. In cross-examination this witness admitted that he did not raise any hulla nor anyone came there nor he informed the police about that, nor he informed the Chaukidar or any important person of the village. He also did not inform even the family members of the deceased about the occurrence nor he told that to anyone in his own family,. He did not say about the occurrence even when the police had come to the village. He admitted that prior to his evidence in court, he did not tell any one about what he had seen. He also admitted that for teasing a girl in the family of Sheo Shanker Yadav no case was instituted nor that teasing was done in his presence but some people had told him about that. He could not even tell the court the name of the girl. 42. Therefore, no reliance whatsoever can be placed upon such evidence. 43. D.W.2, Ram Bilas Yadav only said that he came to know that Barahmdeo Yadav was murdered by Sheo Shanker Yadav. This witness is step brother of one of the accused in this case. He also admitted that about the teasing of the girl he had only heard from someone else, without naming the person who had given him the information. His evidence, therefore, does not help the defence any. 44. This witness is step brother of one of the accused in this case. He also admitted that about the teasing of the girl he had only heard from someone else, without naming the person who had given him the information. His evidence, therefore, does not help the defence any. 44. In the result, I find that the prosecution has proved the charges against appellant Kishun Deo Yadav alias Paharia under section 302 of the Penal Code as well under section 27 of the Arms Act. The sentences call for no interference. However, at the same time I find that appellant Ram Chandra Yadav (of Criminal Appeal no. 368 of 1998) and appellants Lattu Yadav alias Laddu Yadav, Vijaya Yadav and Amiri Lal Yadav. (of Criminal appeal no. 374 of 1998) deserve benefit of doubt. The prosecution not having proved the charges framed against them beyond reasonable doubts,. Consequently, Criminal Appeal no. 374 of 1998 is allowed and the appellants are acquitted and appellants Lattu Yadav alias Laddu Yadav and Vijaya Yadav are also discharged of the liabilities of their bail bonds. Appellant Amiri Lal Yadav, who is in custody, is ordered to be released forthwith if not required to be detained in any other case. 45. Criminal Appeal No. 368 of 1998 is allowed in part so much so that appellant Ram Chandra Yadav is acquitted of the charges framed against him and is discharged of the liabilities of his bail bond. In so far as these four appellants are concerned, the judgment and sentences awarded by the learned lower court stand set aside. 46.ln so far as appellant Kishun Deo Yadav alias Paharia is concerned, I find no scope for interfering with the order of his conviction, and the sentences awarded by the learned lower court. Criminal Appeal no. 368 of 1998, in so far as it relates to appellant Kishun Deo Yadav alias Paharia, is dismissed.