Judgment B.K.Jha, J. 1. Both the appeals have been preferred against the Judgment and Order dated 24th August, 1998 passed by the then learned Additional Sessions Judge-Vith, Rohtas at Sasaram in Sessions Trial No. 375/89, so they were heard together and are being disposed of by this common judgment. 2. The appellant, Gama Khan, has been convicted and sentenced to R.I. for life under Section 302 of the I.P.C., 7 years under Section 307 of the I.P.C. and 2 years under Section 27 of the Arms Act. The appellant, Boda Khan, has been convicted and sentenced to R.I. for life under Section 302/149 of the I.P.C, 7 years under Section 307 of the I.P.C. and 2 years under Section 27 of the Arms Act. The appellants, Afroz Khan, Azhar Khan, Dulla Khan, Sanai Khan, Bais Khan, Jainuddin Khan and Mainuddin Khan, have been convicted and sentenced to R.l. for life under Sections 302/149 of the I.P.C. and 5 years under Sections 307/149 of the I.P.C. The appellants, Afroz Khan and Azhar Khan, have further been convicted and sentenced to R.I. for 4 years under Section 436 of the Indian Penal Code. The sentences awarded to the appellants, however, have been ordered to run concurrently. 3. The case of the prosecution is that on 1st January, 1988, Nazira Bibi, P.W. 11, wife of late Reyazul Haque, was sitting at her door along with her nephew, Azimuddin Khan. At about 2.30 P.M., the accused, Jainuddin Khan with Ballam, Gama Khan and Boda Khan with guns, Mainuddin Khan, Dulla Khan, Sanai Khan, Bais Khan, Afroz Khan and Azhar Khan with lathi came at her Darwaja and asked them to vacate the house and in case of non vacation threatened that the house would be set ablaze. At this, Azimuddin Khan, claimed that they have been living in the house, so they would not vacate it. Then the accused, Jainuddin Khan and Afroz Khan, exhorted others to shoot him and set fire in the hut. Thereafter the accused, Azhar Khan, started sprinkling K. Oil on the hut for setting fire. Azimuddin Khan, obstructed Azhar Khan from doing so whereupon the accused, Azhar Khan and Afroz Khan, again instigated to shoot at him. In the meantime, on nulla, many persons of the Village including female and small children came there. Thereafter the accused, Azhar Khan, started sprinkling K. Oil on the hut for setting fire. Azimuddin Khan, obstructed Azhar Khan from doing so whereupon the accused, Azhar Khan and Afroz Khan, again instigated to shoot at him. In the meantime, on nulla, many persons of the Village including female and small children came there. On the exhortion of the accused, Afroz Khan and Azhar Khan, the accused, Gama Khan, fired from his gun at Azimuddin Khan, which hit on his chest. He fell down floundering on the ground and died at the spot. The accused, Boda Khan and others fired indiscriminately at the assembled persons which caused injuries to 10 persons, namely, Nuruddin Khan, Kadir Khan, Halimu Nissa, Salma Khatoon, Nazira Bibi, Bibi Khatoon, Roshan Ara, Samima Khatoon, Tasalimun Bibi and one Jhuni Mallahin. On such firing, the assembled persons fled away from there and then the accused, Azhar Khan and Afroz Khan, set fire to the hut as a result of which the entire hut was burnt to ashes. Thereafter, they damaged the Parchoon Shop of one Lutawan Sah, running in the portion of the said hut, took away all the articles of the shop, door and its planks. The motive behind the occurrence has been alleged to be the previous land dispute in between the parties. After the occurrence, all the injured persons were sent to Durgawati Hospital for their treatment. 4. On the very date of occurrence, i.e., 1.1.1988 at about 6 P.M., S.I., I. Prasad, the Officer Incharge of Durgawati Police Station recorded the fardbeyan (Ext. No. 5) of the informant, Imamuddin Khan, in the P.O. village Karari, P.S. Durgawati, District Rohtas at Sasaram at the place of occurrence. On the basis of his fardbeyan a formal F.I.R. was drawn up and a case was registered under Sections 147/148/ 149/324/436/307/302 of the Indian Penal Code and Section 27 of the Arms Act, against all the nine accused persons, namely, Afroz Khan, Azhar Khan, Gama Khan, Boda Khan, Dulla Khan, Sanai Khan, Bais Khan, Jainuddin Khan and Mainuddin Khan. After completing the investigation police submitted chargesheet against all of them and on the basis of which they were put on trial which ultimately ended in their conviction and sentence as indicated above. 5. The defence of the appellants is plea of innocence and false implication due to enmity. After completing the investigation police submitted chargesheet against all of them and on the basis of which they were put on trial which ultimately ended in their conviction and sentence as indicated above. 5. The defence of the appellants is plea of innocence and false implication due to enmity. Their further defence is that the alleged hut belonged to them and was standing on their land appertaining to plot no. 1207 and no hut of Nazira Bibi was there. The defence has examined one witness, namely, Hazi Matloob Hussain Khan, D.W. 1. 6. At trial the prosecution examined altogether 15 witnesses. Out of them P.W. 2, Ashok Kumar and P.W. 7, Anwarul Haque Khan, are the formal witnesses. The evidence of P.W. 2, Ashok Kumar, is that the Officer Incharge of Durgawati Police Station prepared the inquest report of the dead body of the deceased, Azimuddin Khan at the place of occurrence in his presence and he put his signature thereon (Ext. No. 1). In cross examination he has stated that there was a shop of his father, Lutawan Sah on a portion of the said land of the deceased, Azimuddin Khan and all the articles were looted away and the shop was burnt to ashes. The evidence of P.W. 7, Anwarul Haque Khan, is that the Officer Incharge had seized the burnt bamboo and ashes from the place of occurrence. He prepared the seizure list and put his signature thereon (Ext. No. 2) P.W. 1, Masuruddin Khan, RW. 3, Nuruddin Khan, P.W. 4, Shamima Khatoon, P.W. 5, Baby Khatoon, RW. 6, Salma Khatoon, P.W. 8, Kanij Fatima, the wife of the deceased, Azimuddin Khan, P.W. 9, Kadir Khan, P.W. 10, Halimun Nissa, P.W. 11, Nazira Bibi and P.W. 12, Imamuddin Khan, the informant, are the eye witnesses to the occurrence. Out of them, RW. 3, Nuruddin Khan, P.W. 4, Shamima Khatoon, P.W. 5, Baby Khatoon, P.W. 6, Salma Khatoon, P.W. 9, Kadir Khan, P.W. 10, Halimun Nissa and P.W. 11, Nazira Bibi, are the injured eye witnesses and are alleged to have received gun shot injuries in the same occurrence. P.W. 13 is Dr. Radhika Mohan Saran, who conducted autopsy on the dead body of the deceased, Azimuddin Khan. P.W. 15 is Dr. P.W. 13 is Dr. Radhika Mohan Saran, who conducted autopsy on the dead body of the deceased, Azimuddin Khan. P.W. 15 is Dr. Gyanendra Kumar Singh, who examined the injuries on the person of the injured, Nuruddin Khan, Baby Khatoon, Roshan Ara, Shamima Khatoon, Nazira Bibi, Kadir Khan, Salma Khatoon, Jhuniya Devi and Halimun Nissa. P.W. 14, Ishwari Prasad, is the Investigating Officer of this case. 7. The evidence of P.W. 13, Dr. Radhika Mohan Saran is that on 2.1.1988 at about 10.40 A.M. he conducted autopsy on the dead body of the deceased, Azimuddin Khan and found the following Ante-Mortem injuries : (i) Six lacerated wound 1/4" x 1/4" x muscle deep with margins inverted scattered over the upper part of infront aspect of the right side of chest. (ii) One lacerated wound 1/4" x 1/4" x muscle deep with margins inverted on the right side of the neck. (iii) One lacerated wound 1/4" x 1/4" X muscle deep with margins inverted on the lower part of the left side of neck. (iv)Two lacerated wound 1/4" x 1/4" X muscle deep with margins inverted, on the lateral aspect of the left side of chest. (v) Eight lacerated wounds 1/4" X 1/4" X muscle deep with margins inverted, scattered over the left upper arm. (vi) Three lacerated wounds 1/4" X 1/4" X muscle deep with margins inverted, scattered over the right upper arm. On dissection he found brain substance pale, lungs pale, right chamber of heart full of dark clotted blood and left chamber empty, Stomach, containing about Ounce of semi solid food, intestine containing gas and liquid. And Liver, spleen, pancreas and kidney pale, urinal bladder was empty. According to him, all the injuries were Ante-Mortem and caused by fire arm such as regular gun. The cumulative effect of the said injuries were grievous and dangerous to life. Five pellets were recovered from the dead body of the deceased, Azimuddin Khan and handed over to the police in sealed cover. In his opinion, the death was caused due to shock and haemorrhage caused by the aforesaid injuries and the time elapsed since death was within 24 hours. Further in his opinion, the injuries were sufficient in ordinary course of nature to cause death. He proved the Post-Mortem Report (Ext. No. 4). In his opinion, the death was caused due to shock and haemorrhage caused by the aforesaid injuries and the time elapsed since death was within 24 hours. Further in his opinion, the injuries were sufficient in ordinary course of nature to cause death. He proved the Post-Mortem Report (Ext. No. 4). In cross examination he could not state the distance 3 from which the firing was done and he also could not state definitely whether all the aforesaid injuries were due to one shot or more than one shot. Thus, it is apparent that the occurrence had taken place on 1.1.1988 at 2.30 P.M. and the post-mortem examination was held on 2.1.1988 at 10.40 A.M.. The time elapsed between death and post-mortem examination held was about 20 hours and according to Doctor it was within 24 hours. Therefore, the medical evidence is consistent with the prosecution case that Azimuddin Khan died of fire arm injuries sustained on the alleged date and time of occurrence. 8. P.W. 15, Dr. Gyanendra Kumar Singh, is another Doctor who examined the injuries of the persons injured in the same occurrence, namely, Nurunddin Khan, P.W. 3, Baby Khatoon, P.W. 5, Roshan Ara, Shamina Khatoon, RW. 4, Nazira Bibi, P.W. 11, Kadir Khan, P.W. 9, Salma Khatoon, P.W. 6, Jhuniya Devi and Halimun Nissa, P.W. 10. On 1.1.1988 he examined Nuruddin Khan, P.W. 3 and found the following injuries on his persons : (i) One gun shot wound having one separate pellet opening 1/4" X 1/4" in diameter on right ring finger inner side. (ii) Gun shot wound having one separate pellet opening 1/4" X 1/4" in diameter on right hand dorsom aspect. (iii) Gun shot wound having one separate pellet opening 1/4" X 1/4" in diameter or right fire-arm lower 1/3rd. (iv) Gun shot wound having two separate pellet openings 1/4" X 1/4" in diameter on right arm lower 1/3rd. (v) Gun shot wound having 2 separate pellet openings 1/4" X 1/4" in diameter over nose. (vi) Gun shot wound having one separate opening right side of the neck 1/4" x 1/4" in diameter. (vii) Gun shot wound having one separate pellet opening 1/4" X 1/4" in diameter right side of the front of the chest. (viii) Gun shot wound having five separate pellet openings 1/4" X 1/4" in diameter right arm anterior aspect. (vi) Gun shot wound having one separate opening right side of the neck 1/4" x 1/4" in diameter. (vii) Gun shot wound having one separate pellet opening 1/4" X 1/4" in diameter right side of the front of the chest. (viii) Gun shot wound having five separate pellet openings 1/4" X 1/4" in diameter right arm anterior aspect. (ix) Gun shot wound having two separate pellet openings 1/4" X 1/4" in diameter on right shoulder region. The age of the injuries was found within 12 hours. Injury Nos. 1, 2, 5, 6 and 7 were found simple in nature caused by fire arm such as gun. For injury nos. 3, 4 and 9 the opinion was reserved and he was advised X-Ray of right arm and forearm. Subsequently, on the basis of the X-Ray report these 3 injuries were also found simple in nature caused by fire arm. He proved the injury reports (Ext. Nos. 8 and 8/1). On the same day at 5.30 P.M. he examined Baby Khatoon, P.W. 5 and found the following injuries on her person : (i) Gun shot wound having 1 separate pellet opening 1/4" X 1/4" in diameter in apigastic region. (ii) Gun shot wound having two separate pellet openings 1/4" X 1/4" in diameter left side of the upper abdomen. (iii) Gun shot wound having two separate pellet openings 1/4" X 1/4" in diameter front of the chest left side. (iv) One gun shot wound having 1 separate pellet openings 1/4" X 1/4" in diameter on left shoulder region. (v) Gun shot wound having two separate pellet openings 1/4" X 1/4" in diameter left arm. (vi) Gun shot wound having one separate pellet opening 1/4" X 1/4" in diameter left fore-arm upper 1/3rd. (vii) Gun shot wound having one separate pellet openings 1/4" X 1/4" in diameter left fore-arm lower 1/3rd. The injuries were found within six hours. He has further stated that the injured Baby Khatoon, P.W. 5 was brought to the hospital in semi conscious and there was surgical enphysema on the left side of the chest. She was advised X-ray of chest. The opinion of injury no. iii was reserved till X-ray report. Other injuries were found simple in nature caused by firearm such as gun. Injury no. iii for which the opinion was kept reserved, was found to be grievous in nature caused by fire arm. She was advised X-ray of chest. The opinion of injury no. iii was reserved till X-ray report. Other injuries were found simple in nature caused by firearm such as gun. Injury no. iii for which the opinion was kept reserved, was found to be grievous in nature caused by fire arm. He proved the injury reports (Ext. Nos. 8/2 and 8/3). On the same day at 7.30 P.M., he examined Roshan Ara and found the following injuries on her person : (i). Lacerated wound 1" X 1/4" X 1/4" over right cheek. The bleeding was present. He found the injuries within six hours, simple in nature caused by hard and blunt substance such as lathi. He proved the injury report (Ext. No. 8/4). On the same day at 7.30 P.M. he examined Sharnima Khatoon, P.W. 4 and found the following injuries on her person : (i) One Gun shot wound having one separate pellet opening 1/4" X 1/4" in diameter left side of the forehead. He found the age of the injuries within six hours simple in nature caused by fire arm such as gun. He proved the injury report (Ext. No. 8/5). On the same day at 5.40 P.M. he examined Nazira Bibi, P.W. 11 and found the following injuries on her person : (i) Gun shot wound having 2 separate pellet opening 1/4" X 1/4" in diameter right side of fore-head. (ii) Gun shot injury having 3 separate pellet openings 1/4" X 1/4" in diameter over chin. (iii) Gun shot injury having 2 separate pellet openings 1/4" X 1/4" in diameter right arm upper 1/3rd. (iv) Gun shot wound having two separate openings 1/4" X 1/4" in diameter right side front of the chest anterior and axilary line. The age of the injury was found within six hours and she was advised X-ray of skull and right arm. On the basis of the X-ray report of the aforesaid four injuries were found simple in nature caused by fire arm such as gun. He proved the injury reports (Ext. Nos. 8/6 and 8/7). On the same day at 6.30 P.M. he examined Kadir Khan, P.W. 9 and found the following injuries on his person : (i) Lacerated wound 1 1/2" X 1" X 1/4" right fore-arm upper 1/3rd anterior aspect. (ii) Swelling 1" in diameter left side of the ankle region medial aspect. He proved the injury reports (Ext. Nos. 8/6 and 8/7). On the same day at 6.30 P.M. he examined Kadir Khan, P.W. 9 and found the following injuries on his person : (i) Lacerated wound 1 1/2" X 1" X 1/4" right fore-arm upper 1/3rd anterior aspect. (ii) Swelling 1" in diameter left side of the ankle region medial aspect. (iii) Contusion 3" X 1" left shoulder blade. The injury was found within six hours, simple in nature caused by hard and blunt substance such as lathi. He proved the injury report (Ext. No. 8/8). On the same day at 7.15 P.M. he examined Salma Khatoon, P.W. 6 and found the following injuries on her person : (i) Lacerated wound 1 1/2" X 1/4" X skull deep over left side of the forehead. The bleeding was present. (ii) Lacerated wound 1" X 1/4" X 1/4" just below left eye. (iii) Gun shot wound having one separate pellet opening 1/4" X 1/4" in diameter over left breast. The age of the injuries was found within six hours. The injury nos. i and ii were found simple in nature caused by hard and blunt substance such as lathi and injury no. iii was also found simple in nature caused by fire arm such as gun. He proved the injury report (Ext. No. 8/9). On the same day at 8 P.M. he examined Jhuna Devi and found the following injuries on her person : (i) Gun shot wound having one separate pellet opening 1/4" X 1/4" in diameter over left side of the chin. (ii) Lacerated wound 1" X 1/2" X 1/ 1" on left thigh of middle one-third anterior lateral aspect. The age of the injuries was found within six hours. Both the injuries were found simple in nature. Injury no. 1 was caused by fire arm such as gun and injury no. ii was caused by hard and blunt sub stance such as lathi. He proved the injury report (Ext. No. 8/10). On the same day at 7.10 P.M. he examined Halimun Nissa, P.W. 10 and found the following injuries on her person : (i) Lacerted wound 1 1/2" X 1/4" X scalp deep over middle part of the forehead. The bleeding was present at the time of examination. The nature of the injury was found to be simple caused by hard and blunt substance such as lathi. The bleeding was present at the time of examination. The nature of the injury was found to be simple caused by hard and blunt substance such as lathi. He proved the injury report (Ext. No. 8/11). He has stated that the injured, Jhuna Devi, Shamima Khatoon, Roshan Ara, Halimun Nissa, Salma Khatoon and Kadir. Khan came to his dispensary directly at 8.15 P.M. on 1.1.1988 and he informed the police by sending O.D. slip (Ext. No. 9). He has further stated that on the same day at 6.10 P.M., the injured Baby Khatoon and Nazira Bibi came to State Dispensary directly and so he informed the police by sending the O.D. slip (Ext. No. 9/1). In cross examination he has deposed that the hard and blunt substance injuries on the above injured persons can also be caused by pelting of bricks bats and stone chips. Lacerated wound, swelling and contusion can also be caused by fall on stone on the road. His further evidence is that all the firearm or gun shots injuries found on the persons of the above injured indicated that the firearm was used from a long distance, more than 40-50 feet and from different directions. 9. P.W. 12, Imamuddin Khan, the informant, is the cousin brother of the deceased, Azimuddin Khan. His evidence is that on the alleged date at about 2-30 P.M. on hearing hulla when he went at the Darwaja of Nazira Bibi, P.W. 11, he found the accused-appellants, Gama Khan with gun, Boda Khan with gun, Jainuddin Khan with Bhala and rest Afroz Khan, Azhar Khan, Mainuddin Khan, Sanai Khan, Bais Khan and Dulla Khan with lathi there. They were asking her to vacate the house whereupon she responded that she has been living in the house since the time of her ancestors so there is no question of vacation of the house. Then the accused, Afroz Khan, exhorted to set fire to the Marai. The accused, Azhar Khan, started sprinkling K. Oil on the Marai and on being obstructed by Azimuddin Khan, the accused, Afroz Khan ordered Gama Khan to shoot him down. On his instigation the accused, Gama Khan fired at Azimuddin Khan which hit on his chest and neck and as a result of which he fell down died on the ground. The accused, Azhar Khan, started sprinkling K. Oil on the Marai and on being obstructed by Azimuddin Khan, the accused, Afroz Khan ordered Gama Khan to shoot him down. On his instigation the accused, Gama Khan fired at Azimuddin Khan which hit on his chest and neck and as a result of which he fell down died on the ground. Thereafter the accused, Boda Khan, resorted to indiscriminate firing causing injuries to Baby Khatoon, Kadir Khan, Nazira Bibi, Roshan Ara, Halimun Nissa, Salma Khatoon, Shamima Khatoon and Jhuniya Mallahin. The accused, Azhar Khan, set fire to the Marai which was in the joint possession of Nazira Bibi and Lutawan Sah. Lutawan Sah, was running a Parchoon shop in the portion of the hut which was also burnt and the articles of the shop were looted away by the accused persons. He has further stated that after the occurrence all the injured were removed to hospital for treatment. The Officer Incharge recorded his fardbeyan in the P.O. Village and he put his signature thereon (Ext. No. 3). In cross examination his evidence is that the alleged Marai was standing on plot no. 1208 situated in the north of plot no. 1207. Nazira Bibi has got her thatched house on plot no. 1207 and the same was not subjected to arson. He has admitted to have disclosed the plot number of the P.O. land to the police. He has further stated that at the alleged time there was a Roller on the road in the East of the PC. He has denied to have stated before the police that the accused were firing by concealing themselves behind the Roller which caused the death of the deceased, Azimuddin Khan and injuries to others. He has denied to have stated before the police that the occurrence had taken place because of dispute regarding the said land and house with the accused, Azhar and Afroz. P.W. 11, Nazira Bibi, is the mother-inlaw of the deceased, Azimuddin Khan. Her evidence is that on the alleged date at about 2.30 P.M. while she alongwith Azimuddin Khan was in her Marai, all the 9 accused came there. The accused, Afroz and Azhar asked her to vacate the house and on refusal they instigated Azhar set her house ablaze. Thereafter, Azimuddin Khan, protested and claimed that the house belonged to them. Her evidence is that on the alleged date at about 2.30 P.M. while she alongwith Azimuddin Khan was in her Marai, all the 9 accused came there. The accused, Afroz and Azhar asked her to vacate the house and on refusal they instigated Azhar set her house ablaze. Thereafter, Azimuddin Khan, protested and claimed that the house belonged to them. Then on the exhortion of the accused, Afroz, Azhar and Jainuddin, the accused, Gama Khan, fired from his gun at Azimuddin Khan, which hit on his neck and chest as a result of which he fell down died on the ground. Thereafter, both the accused, Gama Khan and Boda Khan, resorted to indiscriminate firing causing injuries to all the nine persons of the prosecution side named in the F.I.R. She also sustained fire arm injuries on her hand and forehead. She has further stated that at that time the accused, Jainuddin Khan, was armed with Ballam and rest with lathi. After the occurrence of assault and murder they set fire to the hut and shop of Lutawan Baniya standing on a portion of the said land and also looted away its articles. In cross examination she has denied to have stated before the police that the occurrence had taken place because of land dispute with the accused, Afroz and Azhar regarding the aforesaid house. She has admitted to have named the accused, Mainuddin, Dulla, Sanai and Bais before the police. She has also admitted to have stated before the police that on the order of the accused, Afroz, Azhar and Jainuddin, the accused, Gama fired from his gun. She has also admitted to have stated before the police that the accused, Boda Khan, also fired and in the occurrence persons named in the F.I.R. sustained injuries. 10. P.W. 3 Nurmuddin Khan, the younger brother of the deceased, P.W. 4 Samina Khatoon, the daughter of the informant, P.W. 5, Baby Khatoon, the sister of the deceased, P.W. 6 Salma Khatoon, the wife of the informant, P.W. 9 Kadir Khan, the uncle of the deceased, P.W. 10 Halimu Nissa are the injured eye witnesses to the occurrence. Their evidence is that at the alleged time all the nine accused came at the door of Azimuddin (deceased) and Najima Bibi, P.W. 11, and asked them to vacate the house. Their evidence is that at the alleged time all the nine accused came at the door of Azimuddin (deceased) and Najima Bibi, P.W. 11, and asked them to vacate the house. The accused Boda Khan and Gama Khan were armed with gun, Jaimuddin Khan was armed with ballam and the rests with lathi. When Azimuddin refused to vacate the house, accused Afroz Khan and Jainuddin exhorted others to shoot him and set fire to the Marai. Thereafter accused Azhar Khan started sprinkling kerosene oil on the Marai. Azimuddin obstructed from doing so whereupon the accused Azhar and Afroz asked Gama Khan to shoot him down. On their instigation the accused Gama Khan fired his gun at Azimuddin which hit on his chest and neck. Azimuddin fell down floundering and died. Then, the accused Gama and Boda fired indiscriminately which caused injuries to ten persons named in the F.I.R. on the different parts of their bodies. The accused Azhar and Afroz set the Marai ablaze and the same was burnt to ashes. They also committed theft in the shop of Lootawan Sah existing on a portion of the land and set fire to the shop. After committing the said crime all the accused made good escape in the northern direction. In cross examination P.W. 3 Nurmuddin Khan has stated that he had not disclosed the name of accused Dulla Khan, Jainuddin, Sanai and Vais before the police. In cross examination P.W. 4 Samina Khatoon has admitted to have stated before the police about the occurrence of arson and theft of articles from the shop. P.W. 5 Baby Khatoon has stated in her cross examination that the accused persons committed the alleged crime for getting occupation of the Marai and the land. She has admitted to have stated before the police that the shop of Lootawan Sah was also burnt to ashes by the accused persons. In cross examination P.W. 6 Salma Khatoon has stated that she had disclosed the name of accused Jainuddin, Sanai, Mainuddin, Vais and Dulla before the police. She has denied to have stated before the police that in course of indiscriminate firing by the accused Gama and Boda one shot hit Azimuddin. She has admitted to have stated before the police that the accused Gama had fired a fatal shot at Azimuddin. She has denied to have stated before the police that in course of indiscriminate firing by the accused Gama and Boda one shot hit Azimuddin. She has admitted to have stated before the police that the accused Gama had fired a fatal shot at Azimuddin. In cross examination P.W. 9 Kadir Khan has stated that he had named the injured Nuruddin, Nazira, Baby, Salma, Shamina, Halimu Bibi, Jhunia and Raushan before the police. In cross examination the evidence of Halimu Nisha is that the firing of Boda Khan had not hit Azimuddin. She has admitted to have named all the injureds before the police. P.W. 1 Masuruddin Khan, the own brother of the deceased, and P.W. 8 Kaneez Fatima, the wife of the deceased, are also the eye witnesses. They have stated on all the material points and corroborated the evidence of other eye witnesses and supported the prosecution case. In cross examination P.W. 1 Masuruddin Khan has denied to have stated before the police that the occurrence took place on account of dispute with respect to the land and the house in between Azhar and Afroz on one side and mother Manunisha on the other. He has also denied to have stated before the police that the alleged hut and the land formed part of the said disputed land. He has stated that the house of the deceased Azimuddin is after 3/4 houses from the second house of Nazira and Darogaji found his dead body infront of his house. He has admitted to have stated before the police that the thatched house was set fire by the accused Azhar and Afroz. In cross examination P.W. 8 Kaneez Fatima has admitted to have stated before the police that there was a case in between her father-in-law, Mainul Haque, on one side and accused Azhar and Afroz on the other in respect of the land. In cross examination P.W. 8, Kaneez Fatima, has stated that there were blood stains on the cloths like Shirt, Pagan and Lungi of her deceased-husband. In addition the prosecution has also examined Bijay Kumar Verma as Court Witness, C.W. 1. He has stated that on 23.12.1987, the deceased, Azimuddin Khan, had made a Sanaha in the Court of the S.D.O., Bhabhua, apprehending danger to his life at the hands of the appellants. He proved the signature of Azimuddin on Sanaha Petition (Ext. In addition the prosecution has also examined Bijay Kumar Verma as Court Witness, C.W. 1. He has stated that on 23.12.1987, the deceased, Azimuddin Khan, had made a Sanaha in the Court of the S.D.O., Bhabhua, apprehending danger to his life at the hands of the appellants. He proved the signature of Azimuddin on Sanaha Petition (Ext. No. 10) and Vakalatnama (Ext. No. 11). He also proved the initials of the concerned Advocate, Kanhaiya Singh on each and every petition of the Sanaha (Ext. Nos. 10/1 to Ext. No. 10/4). He also proved the Sanaha Petition (Ext. No. 10/5). 11. P.W. 14, Ishwari Prasad, is the I.O. of this case. His evidence is that on 1.1.1988, while he was posted as Officer Incharge of Durgawati Police Station, he heard about the occurrence of assault and firing in the P.O. village Karari. At this he made S.D. Entry No. 10 dated 1.1.1988 and alongwith other police officials proceeded to the P.O. village for verification of the matter. On arrival in the P.O. village he learnt about the occurrence from the informant, Imamuddin Khan, P.W. 12. The fardbeyan of the informant, Imamuddin Khan, P.W. 12, was recorded and was signed by him (Ext. No. 5). He proved the fardbeyan (Ext No 5) than he prepared the inquest report of the dead body of the deceased, Azimuddin Khan, in presence of the witnesses, Abdul Haque and Ashok Kumar Gupta. He proved the inquest report (Ext. No. 6) and sent the dead body of the deceased for post-mortem,examination. He recorded the further statement of the informant and visited the P.O. He seized the burnt bamboo, prepared the seizure list and seized the articles in presence of the witnesses, Anwarul Haque and Kanhai Ram. He proved the seizure list (Ext. No. 7). He recorded the statements of the seizure list witnesses and inquest report witnesses and searched the accused persons but they could not be apprehended. He came back to the police station and on the following day went to the hospital and recorded the statements of the injured, Nuruddin Khan, Kadir Khan, Halimun Nissa, Salma Khatoon, Nazira Bibi, Baby Khatoon, Roshan Ara, Shamima Khatoon, Jhuna Devi and Lutawan Sah. He examined their injuries and sent the requisition for the injury report. He has further stated that after receiving injury reports and completing the investigation he submitted chargesheet. He examined their injuries and sent the requisition for the injury report. He has further stated that after receiving injury reports and completing the investigation he submitted chargesheet. In cross examination he has deposed that he did not find any blood stains at the P.O. or at any place in the P.O. village. He found the dead body of the deceased, Azimuddin Khan, in front of his house near Bair tree on a cot covered with a Chadar. He has further stated that the informant had not shown him any paper in respect of the land whereas the relevant papers were shown to him by the accused. His attention was drawn to the statements of the witnesses recorded in course of the investigation under Section 161 of the Cr.P.C.The witness, Masruddin Khan, P.W. 1, had not stated before him that the accused, Boda Khan and Gama Khan, both fired which caused injuries to 10 persons. He had also not stated before him that the house ablaze. The witness, Nuruddin Khan, P.W. 3, had not stated before him that the accused, Gama Khan, had fired a fatal shot at the deceased, Azimuddin Khan. The witness, Salma Khatoon, P.W. 6, had stated before him that the accused, Boda Khan and Gama Khan, resorted to indiscriminate firing in course of which one shot hit Azimuddin Khan. She had not stated before him that the accused, Gama Khan had fired a fatal shot at Azimuddin Khan. The witness, Kadir Khan, had not stated before him that the firing had caused the injuries to Nuruddin, Nazira Bibi, Salma, Shamima, Halimun Bibi, Jhuniya and Roshan.The witness, Halimun Nissa, P.W. 10, had stated before him that the firing of Boda Khan hit the deceased, Azimuddin and he fell down injured on the ground. She had not stated before him that the firing caused the injuries on the persons named in the F.I.R. The witness, Nazira Bibi, had not named the accused, Mainuddin, Dulla, Sanai and Bais before him. She had also not disclosed the name of the injured persons before him. 12. The defence has also examined one witness, Hazi Matloob Hussain Khan, D.W. 1. His evidence is that the alleged Marai was standing on plot no. 1207 for which there was a proceeding under Section 145 of the Cr.RC. She had also not disclosed the name of the injured persons before him. 12. The defence has also examined one witness, Hazi Matloob Hussain Khan, D.W. 1. His evidence is that the alleged Marai was standing on plot no. 1207 for which there was a proceeding under Section 145 of the Cr.RC. in between Nizat Khan, the father of the accused, Afroz Khan on one hand and Imamuddin Khan, the informant on the other hand which ended in favour of Nizat Khan. He has further stated that in the morning of 1.1.1988 at about 5 Oclock while he was going towards the river through the house of the deceased, Azimuddin Khan, he saw Azimuddin Khan lying inside is house on a cot. Imamuddin Khan, Nuruddin Khan, Jalla Khan and other family members were washing the wound of Azimuddin Khan. Thereafter, Ganjee, Kurta and Sweater were put on the dead body of Azimuddin Khan and they were deciding to take him to the Doctor. He has further stated that the deceased, Azimuddin Khan, disclosed before them that in the relevant night while he was giving Pahara, some unknown persons fired at him and he became injured. His further evidence is that while he was returning he found the dead body of the deceased, Azimuddin Khan, lying beneath the Bair tree. On the same day at about 1 P.M. he had gone to mosque for prayer. While he was returning he saw that both sides were quarrelling and were brick batting. There was bomb explosion and firing in course of which some one set fire to Marai standing on plot no. 1207. He has further stated that the deceased, Azimuddin Khan, was a Chaukidar of Government Tubewell in village Nachiragi within Mauza Belahari, situated at a distance of 2 miles from the P.O. village. He has further stated that the house of the deceased, Azimuddin Khan, was situated at a distance of 50 yards West-North from plot no. 1207 and there was a Bair tree in north in the sahan of his house. 13. I have discussed the entire evidence and circumstances of the case and now I have to determine whether the prosecution has proved its case against the accused-appellants beyond all reasonable doubts. 14. 1207 and there was a Bair tree in north in the sahan of his house. 13. I have discussed the entire evidence and circumstances of the case and now I have to determine whether the prosecution has proved its case against the accused-appellants beyond all reasonable doubts. 14. The consistent evidence of all the witnesses to the occurrence is that at the alleged time all the accused appeared at the Marai of Nazira Bibi and Azimuddin Khan and asked them to vacate the house Nazira Bibi and Azimuddin claimed that the Marai in question belonged to them so they will not vacate it. On refusal, Jainuddin and Afroz instigated others to shoot him down and set fire in the hut. On being obstructed by Azimuddin Khan, on the order of Azhar and Afroz, the accused, Gama Khan, opened fire from his gun at Azimuddin Khan which hit on his chest and shoulder and he fell down died on the ground. The accused, Boda Khan and Gama Khan resorted to indiscriminate firing which caused the injuries to 10 persons. Thereafter, the accused, Azhar and Afroz set the alleged Marai and Parchoon shop of one Lutawan running on a portion of the said hut ablaze. They also took away the articles of the shop. The informant has clearly alleged that on account of previous land dispute in between the parties the occurrence in hand happened. 15. Now, I advert to discuss the evidence with respect to fardhevanthe origin and genesis of the occurrence. The most important question is to be determined is the question of possession of the alleged Marai. At the time of lodging of the F.I.R. the informant furnished all the details except the plot number of the land of Marai. The informant, Imamuddin Khan, P.W. 12, has clearly stated at para 9 that the alleged Marai was standing on plot no. 1208 and the plot no. 1207 is standing in the north of plot no. 1208. He has further stated that the thatched house of Nazira Bibi is standing on plot no. 1207 and the same was not subjected to mischief, of firing. He has denied his knowledge about the proceeding under Section 145 of the Cr.RC. with respect to the land of plot no. 1207. At para 12 he has stated that he had shown all the relevant papers of the Marai land to the police. 1207 and the same was not subjected to mischief, of firing. He has denied his knowledge about the proceeding under Section 145 of the Cr.RC. with respect to the land of plot no. 1207. At para 12 he has stated that he had shown all the relevant papers of the Marai land to the police. P.W. 14, Ishwari Prasad, the I.O. of this case, has clearly stated at para 21 that he had demanded all the relevant papers of the Marai from the informant but he failed to produce the same before him. He has further stated that the relevant papers had been shown to him by the accused-appellants. The documentary evidence brought on the record by the defence are Ext. Nos. A and B. Ext. No. A is the certified copy of the order dated 14.11.1986 of the proceeding under Section 145 Cr.P.C. and Ext. No. B is the Map. The Ext. No. A reveals that there was a proceeding under Section 145 Cr.P.C. in between Nizat Khan, the father of the accused, Afroz Khan on one hand and the informant and others on the other hand with respect to the land of plot no. 1207 which ended in favour of Nizat Ali Khan. The prosecution failed to produce any paper with respect to the land of plot no. 1207/1208 on which the Marai was standing before the I.O. This indicates that the dispute in between the parties was acute with respect to the land of plot no. 1207 and it is proved by the evidence of defence witness and Ext. No. A, that the alleged Marai was standing on plot no. 1207 and this fact has been suppressed intentionally by the prosecution for the reasons best known to it. A complete consideration of the circumstances of the case clearly indicates that the prosecution is not correct in contending that the Nazira Bibi and the deceased, Azimuddin Khan, continued to be in possession of the land of Marai standing on plot no. 1207 after the order of the proceeding under Section 145 Cr.P.C. passed on 14.11.1986 rather the accused-appellants were in possession of the said land. In this context on behalf of the appellants a reference was made of a case of Ambika Thakur and others. 1207 after the order of the proceeding under Section 145 Cr.P.C. passed on 14.11.1986 rather the accused-appellants were in possession of the said land. In this context on behalf of the appellants a reference was made of a case of Ambika Thakur and others. Appellants V/s. Emperior, reported in AIR 1939 page 611 wherein it has been held that "Party forbidden to disturbed possession of successful party cannot be allowed to plead that in spite of order under S. 145 he is still in possession or has been able to regain possession by force." Thus, D.W. 1, Haji Matloob Hussain Khan, appears to be the competent witness who deposed that the accused-appellants were in possession of the land of Marai at the relevant hour of occurrence standing on plot no. 1207. 16. All the witnesses on facts have stated clearly that the dead body of the deceased, Azimuddin Khan, remained at the place of occurrence till the arrival of the police and at no time before that the dead body was removed from there. On visit of the place of occurrence the I.O. found the dead body of the deceased, Azimuddin Khan lying in front of his house near the Bair tree on a cot covered with Chadar. He prepared inquest report of the dead body of the deceased, Azimuddin Khan in presence of the witnesses there, Abdul Haque and Ashok Kumar Gupta (Ext. No. 6) The deceased was found wearing a Kurta of sky colour, a half sweater and a Lungi. The I.O. also did not find any Objective findings at the spot like blood stains etc. It has also come in the evidence that the house of the deceased, Azimuddin Khan, was standing at a distance of 50 yards, South-West from plot no. 1207 and West from plot no. 1208. His dead body was found lying near a Bair tree in front of his house at a distance of 30 yards, West from the aforesaid two plots. P.W. 1, Masruddin Khan, at para 15 has also admitted that the I.O. found the dead body of the deceased Azimuddin Khan near the Darwaja of his own house. The finding of the dead body near a Bair tree in front of the own house of the deceased, Azimuddin Khan, standing at a distance of 50 yards from plot no. P.W. 1, Masruddin Khan, at para 15 has also admitted that the I.O. found the dead body of the deceased Azimuddin Khan near the Darwaja of his own house. The finding of the dead body near a Bair tree in front of the own house of the deceased, Azimuddin Khan, standing at a distance of 50 yards from plot no. 1207 and not near the alleged Marai creates a serious doubt to the prosecution case that the entire occurrence took place at the alleged Marai. Further, on examination of the injuries. Dr. Gyanendra Kumar Singh, P.W. 15 found lacerated wounds on the persons of Roshan Are and Halimun Nissa caused by hard and blunt substance. He also found lacerated wound, swelling and contusion on the persons of Kadir Khan, P.W. 9 caused by hard and blunt substance. The evidence of the eye witnesses to the occurrence coupled with the prosecution case is indicative of the fact that the accused persons were also armed with hard and blunt object lathi but no such weapon was used by them. On examination the Doctor found the injuries on their persons caused by hard and blunt substance. This also throw a doubt on the prosecution version. On active consideration of entire facts and circumstances, discussed above, the involvement of all the accused-appellants in the alleged crime becomes doubtful. 17. I find that the prosecution has failed to prove its case against all the accused-appellants beyond all reasonable doubts. The court below failed to appreciate the aforesaid infirmities in the prosecution case and its evidence and wrongly convicted the appellants. I hold that the conviction of none of the accused for the offence alleged can be maintained. 18. In the result both the appeals are allowed. The order of conviction and sentence passed against the appellants are set aside and they are acquitted of the charges framed against them. The appellant, Gama Khan, is in custody, so he is ordered to be released forthwith if not wanted in any other case. The rest 8 appellants, namely, Afroz Khan, Azhar Khan, Dulla Khan @ Bulla Khan, Sanai Khan, Bais Khan, Jainuddin Khan, Mainuddin Khan and Boda Khan, are on bail and so they are discharged from the liabilities of their executed bail bonds. A.K.Sinha, J. 19 I agree.