Judgment BRAJ NANDAN PRASAD SINGH, J. 1. Tracing sequence of events that happened in the past, prosecution alleges that in the intervening nights of 11/ 12th November, 1996, appellants held a meeting, hatched a conspiracy to eliminate Maheshwar Sahni (deceased) and in the following morning, while Maheshwar Sahni was listening to commentary, on cricket match in the house of his neighbour, Chandeshwar Sahni, had threatened to eliminate the entire family, and it is alleged that fall out of this previous event was the gruesome killing of Maheshwar Sahni on 12th November, 1996 at about 8 a.m., while the deceased was preparing tobacco on door of his house. It was alleged that Chandeshwar Sahni and Sunil Sahni came to Maheshwar Sahni asking for measurement of disputed land, following which, there was exchange of wordy duel between them, and shortly after, Kishundeo Sahni, one of the appellants, pumped a bullet in the chest of the deceased who dropped dead, and with these accusations, fardbeyan of Nirmala Devi (PW 10), wife of the deceased was recorded in village Bakhtiarpur. Samastipur, at about 10.30 a.m. on 12th November, 1996 by Shri Suresh Kumar, Sub-Inspector of Police pursuant to which a Police case was registered and investigation commenced, during which the Investigating Officer examined a number of witnesses, visited place of occurrence, got autopsy held over the dead body of the deceased, prepared inquest report, and on conclusion of investigation, laid charge-sheet before the Court. In the trial, that commenced thereafter, the State examined altogether 12 witnesses including wife of the deceased, those who expressed their familiarity with the details of the incident, some family members and also those who turned volte face to the State. The State also examined the doctor who held autopsy over the dead body of the deceased. 2. Defence of the appellants, both before the Court below and this Court had been plain denial of the entire allegations and they ascribed false implication due to dispute between the parties with regard to passage. The State also examined the doctor who held autopsy over the dead body of the deceased. 2. Defence of the appellants, both before the Court below and this Court had been plain denial of the entire allegations and they ascribed false implication due to dispute between the parties with regard to passage. However, defence did not chose to examine any witness on its behalf, and the trial Court while negativing defence of the appellants, acquitted Bhudeo Sahni of the charges, recorded finding of guilt against Kishundeo Sahni under Section 302 of the Indian Penal Code (IPC), and also Section 120-B, IPC, and while for the first count he was sentenced to suffer rigorous imprisonment for life, same term of imprisonment had been awarded to him for the second count too. Kishundeo Sahni suffered conviction also under Section 27 of the Arms Act, for which he was sentenced to undergo rigorous imprisonment for five years with direction that all the sentences shall run concurrently. Rest of the appellants, namely Sunil Salmi and Chandeshwar Sahni too suffered conviction under Section 12C-B, IPC, for which these two appellants too were sentenced to suffer rigorous imprisonment for life. 3. Alleging false implication due to land dispute between the parties, it is stated at Bar on behalf of the appellants, that there had been two factions in the village, one sided by the appellants and the other by the deceased, and though in its endeavour to support the factum of killing of the deceased, State has examined as many as 12 witnesses, narrations made by them suffer major contradictions and hence none of them was credible. Learned counsel would urge that though most relevant and significant evidence was that of Pramod Kumar Singh (PW 5), who was next door neighbour of the deceased and if he is to be considered credible, it was Sheo Shankar Sahni, who was assailant of the deceased, and in quick succession it is submitted that the said witness being neighbour of the deceased, there was no good reason to discard his testimony about he being ocular witness to the incident. Admittedly, said Shiv Shankar Sahni was not put on trial and hence, it is urged that while the assailant had not been booked, those who were innocent, have been prosecuted for simply there being land dispute between the parties. Admittedly, said Shiv Shankar Sahni was not put on trial and hence, it is urged that while the assailant had not been booked, those who were innocent, have been prosecuted for simply there being land dispute between the parties. As for the element of criminal conspiracy for which the two appellants were convicted by the Court below, argument was that even on this count, there was no good evidence to fasten criminal liability under Section 120-B, IPC against them. 4. We may first take up evidence of Moti Sahni (PW 1), and Nathuni Baitha (PW 4), and they being hostile to the State, there was nothing material in their evidences to merit consideration. Similar was the case with Ravindra Thakur (PW 2), Pramod Kumar Singh (PW 7), Baleshwar Das (PW 9), and Ram Naresh Prasad (PW 12), who were simply formal witnesses, who brought some documents on the record, and in their evidences too, there was nothing to merit consideration. Now, the prosecution was left with those witnesses, some of whom claimed to be ocular, and while analysing evidence of the prosecution witnesses, we may first advert to the evidence of Nirmala Devi (PW 10), who is wife of the deceased, and the witness, reiterating her earliest version, which she rendered before the Police, would state at trial, that on day of incident, while her husband was preparing tobacco at the door of his house, Chandeshwar Sahni and Sunil Sahni came and asked him to get the disputed land measured, else the matter would get complicated. Though her husband was ready to get; the land measured, they hurled wordy duel, pursuant to which Kishundeo Sahni came along with Bhudeo Sahni and pumped bullet in the chest of the deceased from close range and made good his escape. Tracing the sequence of events that happened in the past, the witness states that at about 8 p.m. on 11.11.1996, while her husband was listening to cricket commentary in the house of his neighbour, Chandeshwar Sahni had threatened her to eliminate entire family, and shortly thereafter, she had informed her husband about threat given by the said appellant. In the preceding night of the incident, the witness states that the appellant had held a meeting following which tragic incident took place. In the preceding night of the incident, the witness states that the appellant had held a meeting following which tragic incident took place. As for motive for gruesome killing of her husband, the witness states that as wife of Kishundeo Sahni had been leading an adulterous life, and persons of bad repute had been visiting her, the deceased had reprimanded Kishundeo Sahni. The witness was quite emphatic that the appellants having hatched conspiracy had killed her husband. 5. Coming to the testimony of Surendra Paswan (PW 3), we find the witness stating at trial that while he had gone to the house of Maheshwar Sahni on hearing loud sound he witnessed him dead with gun shot injury on his person. He also claims to have witnessed Kishundeo Sahni running from the place of occurrence with a pistol and it was wife of the deceased who had disclosed the complicity of Stayadeo, Bhudeo, Sunil, Chandeshwar Sahni and Kishundeo Sahni. as assailants of the deceased. The witness also states about quarrel between the parties in the evening, preceding the day of incident, and that too he stated to have learnt from the wife of the deceased. 6. The witness, who was stated to be stamped witness by the learned counsel for the appellants, happens to be Pramod Kumar Sahni (PW 5). Now, we wish to analyse probative value of this witness, as he claiming to be ocular to the incident, had disclosed complicity of Shiv Shankar Sahni as assailant of the deceased. The witness states that at about 7 a.m. on 12th November, 1996. while he was in his house, he noticed exchange of wordy duel between the deceased and Chandeshwar Sahni for a matter of dispute, following which four persons including following which four persons including Bhudeo Sahni, Marni Devi. Chandeshwar and Sunil Sahni came holding lathi with them. Shiv Shankar Sahni too came holding pistol who shot dead Maheshwar Sahni. The witness states that the assailant had also threatened, him and a day preceding the incident, there had been quarrel between the parties. Other witness whose testimony needs consideration was Maheshwar Paswan (PW 6), as this witness states to have visited house of the deceased on alarms raised by some one, and noticed appellants making good their escape along with Marni Devi and children, and one of them, namely, Kishundeo Sahni had a pistol with him. Other witness whose testimony needs consideration was Maheshwar Paswan (PW 6), as this witness states to have visited house of the deceased on alarms raised by some one, and noticed appellants making good their escape along with Marni Devi and children, and one of them, namely, Kishundeo Sahni had a pistol with him. He stated to have seen the deceased Maheshwar Sahni dead with gun shot injury on his person. As was stated by the witness, on 11th November, 1996, while Maheshwar Sahni had been to his house for witnessing cricket match on television, his wife had come to inform him that appellants were raising dispute for passage and only then the deceased had gone to his house. 7. Though not claiming himself to be ocular witness, Raja Ram Sahni (PW 8), stated to have visited his Father-in-laws bouse on receipt of information from her mother-in-law about killing of Maheshwar Sahni by some one and when he rushed to his father-in-law, he noticed his dead body and was informed by his mother-in- law that having hatched conspiracy in the preceding night, Chandeshwar Sahni, Sunil Sahni, Kishundeo and Marni Devi had shot dead the deceased. 8. Now, we may refer to the evidence of the doctor who held autopsy over the dead body of the deceased. Dr. S.N. Singh (PW 11), who stated to have held autopsy over the dead body of Maheshwar Sahni, noticed following injuries on the person of the deceased which were ante mortem in nature. An oval 1/2" x 1/4" in diameter lacerated wound surrounded by charring and blackening all around with margin inverted (wound of entry), over left parslenum midway. This was wound of entry. An oval lacerated wound measuring 1/2" x 1/4" in diameter over left para spine at the level of fifth rib. Margin of wound was everted. Wound of exit. Both the wounds in the estimation of doctor were communicating to each other and the weapon from which projectile was charged happened to be fire-arm. Cause of death was shock and haemorrhage due to above mentioned ante mortem injuries. This is all the evidence that has been adduced on behalf of the State. 9. Wound of exit. Both the wounds in the estimation of doctor were communicating to each other and the weapon from which projectile was charged happened to be fire-arm. Cause of death was shock and haemorrhage due to above mentioned ante mortem injuries. This is all the evidence that has been adduced on behalf of the State. 9. In view of narrations made by some witnesses, who either claimed to be ocular or had witnessed dead body of the deceased, bearing gun shot injury on his person, and also positive finding recorded by the doctor, death of the deceased from fire arm injury was not open to question. Now, what was for consideration was complicity of the appellants about alleged killing of the deceased by them. The stamped witness on which the State has placed implicit reliance and who was found to be credible by the Court below too, was Nirmala Devi (PW 10). She happens to be wife of the deceased and was also maker of the fardbeyan which is the earliest version of the prosecution. At the material time of incident when her husband was shot dead, she was at her house, and her presence in the house was most probable. She claimed to be ocular to the killing of the deceased by Kishundeo Sahni by pistol and there was nothing on the record put by the defence to militate strongly against the assertion made by this witness to discard her testimony, about she being ocular witness to the killing of the deceased by appellant Kishundeo Sahni. We have just referred to the positive finding of the doctor about deceased having died by fire arm injuries and, we must say at once that testimony of Nirmala Devi receives ample corroboration from the positive finding recorded by the doctor too. Now, we may look for the other evidence to determine as to whether there was other circumstance to lend assurance to the testimony of Nirmala Devi (PW 10), about complicity of the appellants and also his associates. Now, we may refer to the testimony of Surendra Paswan (PW 3). Though he was not the ocular witness, he claims to have rushed to the house on hearing loud sound and the witness saw Maheshwar Sahni dead with gun shot injury on his person. Now, we may refer to the testimony of Surendra Paswan (PW 3). Though he was not the ocular witness, he claims to have rushed to the house on hearing loud sound and the witness saw Maheshwar Sahni dead with gun shot injury on his person. He also witnessed appellant Kishundeo Sahni running from the place of occurrence with a Pistol, and that apart, the wife of the deceased too disclosed complicity of these appellants along with others, to be assailant of the deceased, and we may refer to the testimony of Maheshwar Paswan (PW 6), whose evidence too was not of less significance, as this witness too stated to have visited house of Maheshwar Sahni on alarms raised by some one, when he noticed appellants making good their escape, and Kishundeo Sahni along with others had a pistol with him. He too noticed dead body of Maheshwar Sahni with gun shot injury on his person. Taking narrations of these two witnesses, namely, Surendra Paswan (PW 3), and Maheshwar Paswan (PW 6) into consideration, we find these witnesses lending amply corroboration to the testimony to Nirmala Devi (PW 10), about death of the deceased by gun shot injury and Kishundeo Sahni holding a pistol with him while he along with others had made good his escape from the place of occurrence. 10. We do not wish to reiterate the narrations made by other witnesses, namely, Raja Ram Sahni (PW 8), as we have noticed this witness to be not ocular to the incident and narration made by him was based on informations disclosed to him by the wife of the deceased. 11. Now, we may advert to the evidence of Pramod Kumar Sahu (PW 5), who stated Sheo Sahnkar Sahni to be assailant of the deceased and we find that his evidence has to be discarded for a number of reasons, as on own showing, the witness states to" have heard about the assault when he was at his house. He stated to have witnessed assailants running towards north, and to crown all, when he visited house of the deceased, shortly after the incident, a crowd had collected there and it was wife of the deceased who had disclosed the name of the assailant on being questioned by them. He stated to have witnessed assailants running towards north, and to crown all, when he visited house of the deceased, shortly after the incident, a crowd had collected there and it was wife of the deceased who had disclosed the name of the assailant on being questioned by them. There is yet other element in his evidence which makes him untruthful about he being ocular witness to the killing of the deceased, as the witness makes candid admission that reaching on the place of occurrence, in his first sight, he witnessed Krishandeo Sahni and other assailants making good their escape, from a distance of about 20 laggas. South to his house, the witness states, there is orchard and even during day time, there remains darkness due to trees, and if this narration made by the witnesses was to be taken into consideration, possibility of witnessing even appellants or the assailant by him appears to be extremely remote, and on these premises we have found the witness not credible who claims to be ocular witness to the killing of the deceased. 12. Occurrence took place on 12th November, 1996 and from recitals made in the body of the first information report, it seems that the Police Station is at a distance of about 10 Kms. from village Bakhtiyarpur. The fardbeyan of the wife of the deceased was recorded by the Police Officer in the village itself at about 10.30 hours on 12th November, 1996 and we find that shortly within 2.30 hours, the Police had come in action and had recorded fardbeyan of Nirmala Devi (PW 10). There was no delay in launching prosecution against the appellants. However, we may notice some of the arguments of the learned counsel which appears to be of little significance. Admittedly, Investigating Officer was not examined at trial and contentions raised on behalf of the appellants that defence was seriously prejudiced, was devoid of merit as neither place of occurrence was disputed where the deceased sustained gun shot injury nor there was other circumstance which warranted, examination of Investigating Officer to be must, at trial. Admittedly, Investigating Officer was not examined at trial and contentions raised on behalf of the appellants that defence was seriously prejudiced, was devoid of merit as neither place of occurrence was disputed where the deceased sustained gun shot injury nor there was other circumstance which warranted, examination of Investigating Officer to be must, at trial. Though we find that attention of some witnesses had been drawn by the State and also defence, these were not on material particulars to persuade us for rejection of the prosecution case in entirety for non- examination of the Investigating Officer, and as for the argument that there was no evidence about seizure of blood stained earth from the place of occurrence, we are of the view that on this score too, the prosecution case had not to be disbelieved. 13. A good deal of argument was addressed to the Court even on the point of criminal conspiracy, and it was argued with much stress that notwithstanding there being complete paucity of evidence on this score, too to fasten criminal liability against the appellants, the appellants were convicted under Section 120- B, IPC. True it is that in a case of criminal conspiracy, evidences should be such so as to determine as to what conspired between the conspirators and that can be inferred either from the conduct of the accused or from the attending circumstances of the case and we may refer to a decision of the Apex Court of the land reported in 1994 (2) East Cr C 399 (SC) : AIR 1994 SC 2420 (Suresh Chandra Barhi V/s. State of Bihar) in which observations were made by Court that essential ingredients of offence of criminal conspiracy is an agreement to commit an offence. In case where agreement for accomplishment of an act, which by itself constituted, then in that case, any overt act is necessary to be proved by the prosecution. Apart from the fact that no overt act was ever attributed to other appellants, except Kishundeo Sahni, we find that evidence on this score was quite insufficient to fasten criminal liability against the appellants. Now, we wish to examine evidence to determine as to whether there was evidence on record to fasten criminal liability of conspiracy against the appellant. Apart from the fact that no overt act was ever attributed to other appellants, except Kishundeo Sahni, we find that evidence on this score was quite insufficient to fasten criminal liability against the appellants. Now, we wish to examine evidence to determine as to whether there was evidence on record to fasten criminal liability of conspiracy against the appellant. Taking evidence of PW 3, we find witness simply narrating at trial that there was a quarrel with regard to passage between the parties. Now, coming to the evidence of PW 5,. the witness states that a day preceding the occurrence, there had been quarrel between the parties, and as for (PW 6), the witness states that while deceased was. listening to cricket commentary in his house, in the night preceding the incident, the wife had informed the deceased about appellants disputing passage of land. Son-on-law of the deceased (PW 8), stated to have been informed by the mother-in-law that the appellants having hatched conspiracy in the previous night had killed her husband and as for Nirmala Devi (PW 10), her evidence was that the appellant had a meeting in the previous night and having analysed evidence of these witness, we must say that what was required to fasten, criminal liability under Section I20-B, IPC against the appellants was absolutely lacking in evidence of those witnesses. 14. Having given our anxious and deepest consideration to the evidence placed on the record, while we uphold the findings recorded by trial Court against appellant Kishundeo Sahni under Section 302, IPC and also under Section 27 of the Arms Act, acquit him of the charges under Section 120-B of the IPC, and likewise rest two appellants, namely, Sunil Sahni and Chandeshwar Sahni too are acquitted of the charges under Section 120-B, IPC These two appellants are also discharged from liability of their bail bonds and as such while Cr. Appeal No. 497 of 1999 is allowed, Cr. Appeal No. 528 of 1999 is dismissed. Shri Saroj Kumar Tiwary, Advocate, who was appointed as amicus curiae in Cr. Appeal No. 497 of 1999 shall receive his remuneration from the Patna High CourtLegal Aid Committee. PRABHAT KUMAR SINHA, J. 15 I agree.