Research › Search › Judgment

Patna High Court · body

2003 DIGILAW 920 (PAT)

Suresh Rai v. State Of Bihar

2003-08-29

A.K.SINHA, B.K.JHA

body2003
Judgment A.K.Sinha, J. 1. These three appeals were heard together as they arise out of the same judgment and this common judgment will govern all the three appeals. 2. The appellants, namely, 1. Suresh Rai, 2. Awadhesh Rai, 3. Shivadhar Rai, 4. Radheshyam Singh and 5. Ram Perwesh Singh Yadav (Cr. Appeal No. 478/99) have been convicted under sections 302 and 149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. They have further been convicted under section 307 and 149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years. Further they have also been convicted under section 27 of the Arms Act for which they have been sentenced to undergo imprisonment for seven years. The appellant Gopal Rai (Cr. Appeal No. 495/99) has been convicted under section 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. He has further been convicted under section 307, 149 of the Indian Penal Code and 27 of the Arms Act for which he has been sentenced to undergo rigorous imprisonment for seven years on each counts. The appellant Kameshwar Rai (Cr. Appeal No. 525 of 1999) has been convicted under section 302, 149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. He has further been convicted under section 307 of the Indian Penal Code and 27 of the Arms Act for which he has been sentenced to undergo rigorous imprisonment for seven years each on both counts. 3. The prosecution story, in brief, is that on 24.12.95 at about 9.00 a.m. Ram Nagar Rai (P.W. 3) was going to his Khalihaan situated in the north east corner of the village on his tractor and the informants father Raj Nandan Rai was sitting on the mud guard of the tractor. The informant Ram Daras Rai (P.W. 6) along with his cousin brother Ram Vyash Rai (P.W. 7) were behind the tractor and carrying the bag of wheat seeds on their head. As soon as the tractor reached in front of the house of Rama Shankar Rai, all of a sudden, the accused persons appeared from the north side from the house of Kashi Nath Rai. As soon as the tractor reached in front of the house of Rama Shankar Rai, all of a sudden, the accused persons appeared from the north side from the house of Kashi Nath Rai. The appellant Gopal Rai, Kameshwar Rai, Radhe Shyam Singh and Ram Prawesh Singh Yadav were armed with rifle, Suresh Rai, Awadhesh Rai, Shivadhar Rai were armed with guns, whereas, other accused, namely, Jagannath Rai was armed with gun, Munna Rai was armed with country made pistol, and Kashi Nath Rai, Baban Rai and Vijay Narain Yadav were armed with lathi. All the accused surrounded the tractor and on being exhorted by Kashi Nath Rai, Gopal Rai fired upon Raj Nandan Rai @ Raja Rai with rifle, Kameshwar Rai also fired upon him. When Ram Nagar Rai tried to flee away after jumping from the tractor, accused Kameshwar Rai, fired upon him on his back with an intention to kill him and all the accused fired 5-7 rounds from their respective guns causing injury to Raj Nandan Rai and Ram Nagar Rai. As a result of firing, Raj Nandan Rai died instantaneously but Ram Nagar Rai succ any how to flee away and was saved. On halla raised by the informant, Maheshwar Rai (P.W. 2), Jagdamba Rai (P.W. 1) and many others came from the village and saw the occurrence. The accused persons also damaged the radiator of the tractor by firing upon it. The motive behind the occurrence is that Kashi Nath Rai and his family members had blocked the canal by which the informants field used to be irrigated for which litigation was going in the Court and due to this reason the accused persons committed the murder of Raj Nandan Rai and fired upon the informants cousin brother Ram Nagar Rai with an intention to kill him. 4. The Police registered a case under sections 147, 148, 149, 302, 324. 307. 342, 426 of the Indian Penal Code read with 27 of the Arms Act and chargesheet was submitted against them under sections 147, 148, 149, 302, 324, 307, 342, 426 of the Indian Penal Code and 27 of the Arms Act. The learned Magistrate took cognizance in the case and committed the case to the Court of Sessions. 5. The police submitted Final Form against 1. Kashi Nath Rai, 2. Munna Rai 3.Jagarnath Rai, so, they did not face the rial. The learned Magistrate took cognizance in the case and committed the case to the Court of Sessions. 5. The police submitted Final Form against 1. Kashi Nath Rai, 2. Munna Rai 3.Jagarnath Rai, so, they did not face the rial. The learned trial Court, however, acquitted Vijay Narain Singh, Baban Rai, who were charged under section 302 and 149 of the Indian Penal Code and 307/149 of the Indian Penal Code. All the appellants were, however, convicted in the manner as stated above. 6. In order to prove its case the prosecution examined as many as ten witnesses. The defence version is that due to old enmity the appellants were falsely implicated in the case and the occurrence did not take place in the manner as alleged in the F.I.R. The defence has filed Exhibit-A to C to show the litigation going on between both the sides and it is not disputed that litigations were going on between both the sides on account of blocking of water in the canal through which land of the prosecution -party used to be irrigated. 7. P.W. 9 Sanjay Kumar is the I.O. of this case, who has stated that the informant along with P.W. 3 and P.W. 7 came at the Police Station and lodged the F.I.R. at 11.45 a.m. He has proved the F.I.R. (Exhibit-6). He has also stated that he prepared the injury report (Exhibit-5) of Ram Nagar Rai, who was unconscious and sent him for treatment. The l.O. proceeded for the place of occurrence and found that a tractor with tiller was standing in the field of Baban Rai. The tractor was facing east and the dead body of Raja Ram Rai was lying on the tiller of the tractor. The I.O. has further stated that he prepared the inquest report (Exhibir-7) of the deceased and seized the blood stained earth from the place of occurrence and prepared the seizure list (Exhibit-8) and sent the dead body for post mortem examination. The I.O. found copious blood beneath the tractor. According to P.W. 9, an electric transformer was fixed in adjacent north of the place of occurrence in the field of the deceased. There is Rajpur Katariya village road in the south of place of occurrence. The I.O. found copious blood beneath the tractor. According to P.W. 9, an electric transformer was fixed in adjacent north of the place of occurrence in the field of the deceased. There is Rajpur Katariya village road in the south of place of occurrence. The house of Ram Shankar Rai is situated at a distance of 40 feet towards the west and the house of Kashi Nath Rai is situated at a distance of 80 feet from the place of occurrence towards north west. The I.O. also noticed that radiator of the tractor was damaged due to firing. 8. Dr. Rajiv Ratan (P.W. 5) held post mortem examination on the dead body of the deceased on 25.12.95 at 8.00 a.m. and found the following ante mortem injuries on the person of the deceased: "I. Fire Arm wound left lower back 1 c.m. in diameter; Margin inverted (wound of entry) II. Fire arm wound left groin 1.5" approx. in diameter; margin everted (wound of exit). III. Fire arm wound left thigh approx. one inch in diameter; margin everted (wound of entry). IV. Pillet injury left leg at three places. The doctor found the following injury on internal examination : Skull-NAD, Brain and meninges-Pale, Neck-NAD, Heart-empty, Lungs-pale, Stomachempty, Intestine-Gasses & Laceration at three points due to fire arm injury No. 1, Liver, spleen & Kidneys-Pale with left Kidney lacerated due to injury No. 1, Bladder lacerated due to injury No. 1, Rectum partially loaded with faceal materials, Sacrm and left public bone found fractured due to injury no. 1. Three small pieces of deformed bullet taken out from injury no. Ill and kept sealed in glass phial. In the opinion of the doctor, death was caused due to shock and haemorrhage on account of the fire arm injuries and the time elapsed since death was within 24 hours. P.W. 5 has proved the post mortem report (Exhibit-3)." 9. P.W. 5 has stated that he did not mention as to whether injury No. I was above or below the waist but the wound of exit was below injury No. I which indicates the downward movement of the bullet. He further stated that inverted margin is caused by fire arm whether fired from close distance. Close and distance range firing creates different signs such as blackening etc. He further stated that inverted margin is caused by fire arm whether fired from close distance. Close and distance range firing creates different signs such as blackening etc. From the evidence of P.W. 5, it is established that Raja Ram Rai @ Raj Nandan Rai died a result of the fire arm injuries which is the prosecution version. 10. It is worth while to refer here the injuries found by P.W. 8 Dr. Satyendra Kumar Ojha, who examined P.W. 3 at Saraiya Primary Health Centre. P.W. 8 has deposed that on 24.12.95 at 12.30 p.m. he had examined Ram Nagar Rai, who was admitted as out door patient No. 5264 and following injuries were found on his person: "I. Lacerated wound in left scapular region just medial to posterior auxulliary line; wound margin irregular and charred size 1" x 1/2" depth not probed. II. Small round wound size 2mm x 2 mm just below the injury No. I. III. Two small wound on medial aspect of right foot." 11. P.W. 8 has stated that the patient was referred to Sadar Hospital, Buxar, for treatment and he also sought the opinion regarding the nature of injury and weapon used. He has proved the injury report (Exhibit-5). P.W. 8 has admitted that he did not receive any report regarding the nature of the injury or the weapon used from Buxar Sadar Hospital. The prosecution has not filed any paper worth the name regarding the treatment received by P.W. 3 at Buxar Hospital nor the bed head ticket or the treatment received by P.W. 3 at , P.M.C.H., Patna have been filed on behalf of the prosecution to show the treatment received by him at both the hospitals. 12. The prosecution has, however, produced the discharge slip of PMCH (Exhibit-11) of injured Ram Nagar Rai, which has been proved by P.W. 10 Sri Datta Mishra which shows that he was admitted in PMCH on 24.12.95 at 11.15 a.m. and was operated on 3.1.96 and was discharged on 15.1.96. It further appears from the Discharge Slip (Exhibit-11) that Ram Nagar Rai was operated of fire arm injury over the left back of his shoulder. 13. From the evidence of P.W. 8, it is established that P.W. 3 had sustained fire arm injury on his left scapular region and small wound on the medial aspect of his right foot. 14. It further appears from the Discharge Slip (Exhibit-11) that Ram Nagar Rai was operated of fire arm injury over the left back of his shoulder. 13. From the evidence of P.W. 8, it is established that P.W. 3 had sustained fire arm injury on his left scapular region and small wound on the medial aspect of his right foot. 14. The defence has seriously challenged the manner of occurrence and it was strenuously argued by the learned counsel that the alleged occurrence did not take place in the manner alleged in the F.I.R. and the witnesses examined by the prosecution were not present at the place of occurrence and they have deposed against the appellants due to enmity going on between the parties which fact is not in dispute. It may be stated here that the witnesses examined on behalf of the prosecution are all agnetic relations and no independent witness of the village has come forward to support the prosecution story. l shall advert myself to examine the evidence, facts and circumstances available on the record in order to come to a conclusion that whether the prosecution has been able to prove the participation of the appellants in the alleged crime beyond all reasonable doubts or not. 15. At the outset, it may be stated that in the F.I.R. there is specific allegation of firing upon Raj Nandan Rai against the appellant Gopal Rai and Kameshwar Rai. There is specific allegation against Kameshwar Rai that he fired upon Ram Nagar Rai (P.W. 3) but there is no specific allegation of causing any injury by firing against the remaining appellants. There is a vague and general allegation that all of them fired 5-7 rounds. There is nothing specific in the F.I.R. which may show that any injury was caused to P.W. 3 on account of the firing made by the remaining appellants, namely, Suresh Rai, Awadhesh Rai, Shivadhar Rai, Radheshyam Singh and Ram Pravesh Singh Yadav (appellants of Cr. Appeal No. 478/99). 16. In the evidence, the witnesses developed the story that it was appellant Shivadhar Rai, who first fired upon P.W. 3 on his right leg and P.W 3 jumped out from the tractor and ran away, whereupon, Baban Rai exhorted and Kameshwar Rai fired upon the back of P.W. 3. Appeal No. 478/99). 16. In the evidence, the witnesses developed the story that it was appellant Shivadhar Rai, who first fired upon P.W. 3 on his right leg and P.W 3 jumped out from the tractor and ran away, whereupon, Baban Rai exhorted and Kameshwar Rai fired upon the back of P.W. 3. It is true that the F.I.R. is not an encyclopedia of all the tacts but the allegation that Shivadhar Rai fired upon P.W. 3 on his right leg while he was sitting on his tractor has not been stated in the F.I.R. which was lodged after two hours fourty five minutes of the alleged occurrence by the informant (P.W. 6), who claims to be an eye witness to the alleged occurrence and at the time of the recording of the F.I.R. P.W. 3 was also present there. From the evidence of P.W. 3 it is manifest that except Shivadhar Rai and Kameshwar Rai, the appellants, namely, Suresh Rai, Awadhesh Rai, Radhey Shyam Singh and Ram Pravesh Singh Yadav had not caused any injury to him. The evidence of P.W. 3 goes to show that the accused persons being armed with rifle, gun etc. surrounded him and on the orders of Kashi Nath Rai, the appellant Gopal Rai fired upon his father and Shivadhar Rai fired on his right leg on which he jumped from the tractor and started running and on being exhorted by Baban Rai, the appellant Kemeshwar Rai fired at his back as a result of which he became unconscious and regained consciousness at PMCH where his statement was recorded by A.S.I.R.P. Singh, who has not been examined in the case nor the so called statement of P.W. 3 has been marked as exhibit in the case. 17. Learned counsel appearing for the appellants strenuously argued that though P.W. 3 is an injured witness but he has deposed falsely, inasmuch as, P.W. 6 has admitted that all the accused came from the north side. He has also stated that Gopal Rai and Kameshwar Rai both were on the north west side of the RO. P.W. 4 as well as the I.O. has stated that the tractor was facing east and Raja Rai (deceased) was sitting on the left mud guard on the tractor facing south. He has also stated that Gopal Rai and Kameshwar Rai both were on the north west side of the RO. P.W. 4 as well as the I.O. has stated that the tractor was facing east and Raja Rai (deceased) was sitting on the left mud guard on the tractor facing south. According to P.W. 4, Shivadhar Rai was at a distance of 10 yards from Ram Nagar Rai (P.W. 3) on the north and when Ram Nagar Rai had covered a distance of 4-5 yards while running towards south, accused Kameshwar Rai fired upon him. P.W. 6 has stated that when Ram Nagar Rai was at a distance of 8-9 yards towards the south of the tractor, he sustained injuries and at that time Kameshwar Rai, who is alleged to have fired upon P.W. 3 was in the north west of the tractor. 18. The learned counsel appearing for the appellants submitted that from the evidence of the P.Ws. it is clear that at the time of the alleged occurrence the tractor on which the deceased was going with P.W. 3 was facing east and the assailants were in the north west of the tractor and firing was made by Shivadhar Rai upon P.W. 3 from the northern side, so, by no stretch of imagination, the shot fired by Shivadhar Rai upon P.W. 3 could have caused injury on his right leg as found by the Doctor (P.W. 8). It was next submitted that according to P.W. 6, Kameshwar Rai fired upon P.W. 3 from a distance of 8-9 yards. P.W. 3 also stated that when he ran up to a distance of 8-10 steps (approximately 15 feet), he was fired on his back but P.W. 8 Dr. S.K. Jha, who examined the injuries of P.W. 3, has stated that he four a lacerated wound in the left scapular region of P.W. 3; margin of the wound was irregular and charred. According to him, charred wound can be caused from a very close range i.e. from a distance of 9" to 1-1/2 feet. S.K. Jha, who examined the injuries of P.W. 3, has stated that he four a lacerated wound in the left scapular region of P.W. 3; margin of the wound was irregular and charred. According to him, charred wound can be caused from a very close range i.e. from a distance of 9" to 1-1/2 feet. But, according to P.W. 6, Kameshwar Rai fired upon P.W. 3 from a distance of 8-10 yards and P.W. 3 himself has stated that when he had covered a distance of fifteen feet, he was fired on his back, so, in these circumstances no charring injury was possible and the ocular evidence of the witnesses is totally inconsistent with the medical evidence. 19. The learned counsel then submitted that the Doctor, who conducted post mortem examination on the dead body of the deceased found fire arm wound on the left lower back; size 1 c.m. in diameter which was the wound of entry which is possible only if fire would have been shot from the east specially in view of the fact that as per the evidence of the witnesses the deceased was sitting on the left mud guard of the tractor facing south. But, all the witnesses have stated that the assailants came from north west direction and P.W. 4 has stated that all of them fired from the same place and if the fire was shot from the north west direction, the injury would have been caused on the right of the deceased. As such, the ocular evidence of witnesses is totally inconsistent with the medical evidence of P.W. 5 so far as injury of Raja Rai is concerned and the manner of occurrence as stated by the witnesses in their evidence becomes highly improbable and doubtful. 20. The learned A.RR failed to con-vince that how the injury as found by the doctor (P.W. 5) on the person of the deceased on his left side was caused. Similarly, he could not give any convincing reply that how the fire arm injury was caused to P.W. 3 on his right leg when Shivadhar Rai, who is alleged to have fired pon P.W. 3 on his leg, was on the north west side of the tractor. Similarly, he could not give any convincing reply that how the fire arm injury was caused to P.W. 3 on his right leg when Shivadhar Rai, who is alleged to have fired pon P.W. 3 on his leg, was on the north west side of the tractor. Therefore, the inconsistency between the ocular evidence and the medical evidence could not be explained by the prosecution beyond all reasonable doubt and l find force in the submission of the learned counsel for the appellants that the alleged occurrence did not take place in the manner alleged by the prosecution ( AIR 1956 SC 526 Santa Singh vs. State of Punjab relied on). 21. In this connection, learned counsel further pointed out that the deceased was sitting on the left mud guard of the tractor which was on the front portion of the tractor and if the deceased suffered injury on the left side of his body he will fall down near the mud guard which is situated on the front of the tractor but the I.O. found the dead body of the deceased on the tiller which was fixed in the rear portion of the tractor and it is not understandable that how the body of the deceased was found on the tiller. 22. Apart from that, it was pointed out that there was enmity between the parties because the accused side had blocked the canal from which 50-55 Bighas of land of the prosecution party used to be irrigated and the case was pending in the Court since about two years. So, it was the accused party who was on gainful side and it was the prosecution party who was suffering on account of the blocking of the canal. As such, there could have no earthly reason for the accused party to commit the murder of Raja Rai specially when there is no case of the prosecution that what was the immediate cause for committing the occurrence. That apart, the appellants, namely, Radhe Shyam Singh, and Ram Prawesh Singh Yadav had no concern whatsoever with the dispute between the parties as they are stranger to the family of the accused. So, there could have been no reason for the appellants Radhe Shyam Singh and Ram Prawesh Singh Yadav to participate in the alleged occurrence. 23. That apart, the appellants, namely, Radhe Shyam Singh, and Ram Prawesh Singh Yadav had no concern whatsoever with the dispute between the parties as they are stranger to the family of the accused. So, there could have been no reason for the appellants Radhe Shyam Singh and Ram Prawesh Singh Yadav to participate in the alleged occurrence. 23. Commenting upon the evidence of P.W. 1 Jagdamba Rai and P.W. 2 Maheshwar Rai, it was submitted that P.W.1 was at his house when he heard the sound of firing and P.W. 2 was at the house of Nathun Lal where he had gone to fetch his tractor. P.W. 1 has admitted in his cross-examination that he heard only one sound of firing at his house and he could not see the injured as he was at distance. P.W. 1 has stated that when Ram Nagar Rai ran up to a distance of about 30 yards towards west from the tractor he was fired upon and at that time the assailants were near the tractor. His statement clearly goes to show that his evidence is not credible because the Doctor found charred wound on the back of P.W. 3. 24. Learned counsel submitted that according to the evidence of P.W. 1 and 2 there is village lane situated in the west of the house of Nathun Lal and the house of Jagdamba Rai is situated in the adjacent south of the house of Nathun Lal. The village lane runs north to south and at a distance of about 100 yards from the house of Nathun Lal, it turns towards east and the house of the accused persons are situated near the turning of the village lane. The length and breadth of the house of Kashi Nath Rai runs 50 yards to 40-45 yards and there is a compound wall from all the four sides. The entry of the house of Kashi Nath Rai is towards north. P.W.2 further stated that a transformer is fixed at a distance of 60-65 yards from the house of Nathun Lal and P.W. 2 remained at the house of Nathun Lal when the occurrence was taking place and from there he came to his house. The entry of the house of Kashi Nath Rai is towards north. P.W.2 further stated that a transformer is fixed at a distance of 60-65 yards from the house of Nathun Lal and P.W. 2 remained at the house of Nathun Lal when the occurrence was taking place and from there he came to his house. According to the learned counsel, several houses of the family of the accused persons were situated towards the north of the village lane with a compound wall from all the four sides and it was not possible for P.W. 1 and 2 to witness the alleged occurrence from the house of Nathun Lal because the alleged occurrence took place in the east of the house of Rama Shankar Rai. So, there was obstruction due to presence of the houses of accused persons and P.W. 1 and 2, who were at a distance of 70-80 yards towards south of the place of occurrence could not have possibly seen the assailants who came from the north west direction and shot the deceased and P.W. 3 from that direction because of the presence of the houses of the accused situated in the adjacent north of the village lane. The submission carries much force in it, inasmuch, as admittedly there were several houses of the family of accused persons situated in the adjacent north of the village lane going towards east, P.W. 1 and 2 were in the house of Nathun Lal which is situated at a distance of 70-80 yards towards south of the place of occurrence. The place of occurrence is situated in the east of the house of Ramashankar Rai. As such, it was not possible for P.W. 1 and P.W. 2 to witness the occurrence from a distance of 70-80 yards in the south because of the existence of several house, compound wall in between, specially when, it is the consistent evidence of all the witnesses that the assailants had come north west of the house of Kashi Nath Rai. 25. So far the evidence of P.W. 3 is concerned, learned counsel submitted that his evidence to the effect that Kameshwar Rai fired upon his back when he was fleeing towards south is wholly unnatural because he could not have seen as to who fired upon his back when he was running towards the south and the assailants fired from his back. It was pointed out that according to P.W. 6, he went to the Police Station along with P.W. 3, who was in injured condition and the I.O. referred him to Sariya Hospital for treatment where the Doctor examined his injuries but the Doctor has not whispered in his evidence that P.W. 3 was unconscious. P.W. 8 referred P.W. 3 to PMCH but the Doctor of PMCH has not been examined in the case so as to know the condition of P.W. 3 when he was admitted in PMCH. Even if it is assumed that after reaching to the Police Station P.W. 3 became unconscious and seeing his condition the Doctor of Sariya Hospital referred him to PMCH where he was operated on 3.1.96 and was finally discharged on 15.1.96 as per the Discharge slip (Exhibit-11), the statement of P.W. 3 should have been recorded by the l.O. immediately after his discharge from the hospital. There is no evidence on the record to show that so long P.W. 3 was admitted in PMCH he was unconscious throughout and in all probability he must have regained his consciousness within 23 days as the injuries found on his person does not suggest that it was so serious that he could have remained unconscious beyond that period. In any view, the I.O. should have recorded the statement of P.W. 3 when he was discharged on 15.1.96 but the statement of P.W. 3 was recorded after 39 days i.e. on 2.2.96 and no plausible explanation has been given for the long delay in recording the statement of P.W. 3 As such, the evidence of P.W. 3 can not inspire confidence to believe for the purpose of conviction of the appellants. 26. In support of his contention, learned counsel appearing for the appellants has relied upon a decision of the Apex Court in the case of State of Orissa vs. Mr. Brahmananda Nanda ( AIR 1976 SC 2488 ) wherein the Apex Court has held as hereunder: "Where in a murder case the entire prosecution case depended on the evidence of a person claiming to be eye witness and this witness did not disclose the name of the assailant for a day and a half after the incident and explanation offered for non-disclosure was unbelievable, held that such nondisclosure was a serious infirmity which destroyed the credibility of the evidence of the witnesses." 27. In the instant case, the I.O. has not given any explanation as to why he did not record the statement of P.W. 3 as soon as he was discharged from the hospital and under what circumstances his statement was recorded after one month nine days. This long delay in recording the statement of P.W. 3 is a serious infirmity in the prosecution which renders his evidence unworthy of placing credence to. 28. The evidence of P.W. 6 and 7 also suffers with improbabilities and infirmities, inasmuch, as according to the prosecution, P.W. 6 and 7 were going with bundles of wheat seeds on their heads and were 6-7 steps behind the tractor which means that they were in the west of the tractor which was facing east. The assailants also came from north west direction but no injury was caused to P.W. 6 and 7 although the assailants, who were 12-13 in number were armed with rifle, gun, pistol etc., are said to have surrounded the tractor from north and west direction. This circumstance throws sufficient doubt regarding the presence of P.W. 6 and 7 at the place of occurrence because had they been present near the place of occurrence, the accused persons must have attempted to shoot them but P.W.6 has stated that the accused had not even aimed at him or Ram vyas (P.W. 7). P.W. 6 has stated in his cross-examination that the deceased Raja Rai was an old man whose eye sight was very weak and he did not do pairvi in the case and he had no enmity or animosity with any one. He has further admitted that, he and Ram Vyas had filed the case relating to the blockage of the canal and they used to do the pairvi in that case. As such, if would appear that there was no reason for the accused persons to commit the murder of Raja Rai, who was an old man having no animosity with any one as per the statement of the informant (P.W. 6). The evidence of P.W. 6 would show that the accused may have annoyance with P.W. 6 and 7, who had instituted the case against them and were fighting tooth and nail. The evidence of P.W. 6 would show that the accused may have annoyance with P.W. 6 and 7, who had instituted the case against them and were fighting tooth and nail. So when P.W. 6 and 7 were 5-7 steps behind the tractor, they could have easily become the target of the accused, who must have made attempt to fire at them or cause some bodily injury to them but curiously enough the assailants did not make any such attempt and P.W. 6 and 7 managed to escape unhurt. Therefore, this circumstance also throws doubt regarding the presence of P.W. 6 and 7 at the place of occurrence. Accordingly, their evidence on the point of occurrence does not inspire confidence to believe. 29. The next witness is P.W. 4 Prafful Kumar Rai, who is another agnetic relation of the informant and he claimed to have witnessed the alleged occurrence. It may be pointed out that the name of P.W. 4 has not been cited as a witness in the F.I.R. and his statement was recorded by the I.O. after 10-12 days of the occurrence, so, at once it can be said that the evidence of this witness is not credible. That apart, if he would have witnessed the occurrence, the informant must have named him as a witness of the alleged occurrence in the P.I.R. This witness claimed that he was working in his field but did not speak about the situation of the field where he was working and when asked in cross-examination he could not say the Khata No. and Plot No. of the field where he was working nor he could say the length and breadth of the field. Therefore, the presence of this witness at the place of occurrence does not inspire confidence to believe and it seems that he was given a proto type statement being the close agnetic relation of the prosecution party. 30. It was pointed out that according to the prosecution version P.W. 6 and 7 were carrying bundles of seeds on their heads which they threw and fled away. The I.O. visited the place of occurrence within few hours but did not find any wheat bags near the place of occurrence. 30. It was pointed out that according to the prosecution version P.W. 6 and 7 were carrying bundles of seeds on their heads which they threw and fled away. The I.O. visited the place of occurrence within few hours but did not find any wheat bags near the place of occurrence. The I.O also did not find any empty cartridge at the place of occurrence, so this circumstance also throws doubt on the prosecution version regarding the presence of P.W. 6 and P.W. 7 at the place of occurrence and the alleged 5-7 rounds of firing resorted by the accused persons at the place of occurrence. It was lastly submitted that according to the prosecution Gopal Rai fired upon the deceased on being exhorted by Kashi Nath Rai and Kameshwar Rai fired upon P.W. 3 on being exhorted by Baban Rai and there is no specific allegation of causing any injury against the appellants, namely, 1. Suresh Rai, 2. Awadhesh Rai, 3. Shivadhar Rai, 4. Radheshyam Singh and 5. Ram Perwesh Singh Yadav (Cr. Appeal No. 478 of 1999), hence, they can not be convicted under sections 302/149 or 307/149 of the Indian Penal Code, inasmuch as, the facts and circumstances of the case does not disclose that the assailants had common object to kill the deceased or to cause injury to P.W. 3. The P.I.R. goes to show that at the spur of the moment Gopal Rai fired upon the deceased on being exhorted by Kashi Nath Rai and Kameshwar Rai, Shivadhar Rai also fired on being exhorted by Kashinath Rai and Babban Rai. 31. It may be pertinent to point out here that after investigation the police did not file any chargesheet against Kashi Nath Rai, Munna Rai and Jagarnath Rai, who have been named as accused in the F.l.R. with specific allegation, inasmuch, as Jagarnath Rai and Munna Rai were armed with gun and country made pistol, whereas, Kashi Nath Rai was the order giver and on his order Gopal Rai is alleged to have fired upon the deceased. Besides that, Baban Rai and Vijay Narain Singh also faced trial. Besides that, Baban Rai and Vijay Narain Singh also faced trial. They were also named in the F.I.R. but the trial Court has acquitted them on the ground that they were aged persons as the age of Baban Rai on the alleged date of occurrence has been assessed as 80 years and the age of Vijay Narain Singh is 75 years. The learned trial Court was of the view that the participation of such old persons in a case of murder appears doubtful. 32. Learned counsel pointed out that the conduct of P.W. 6 and 7 is highly unnatural, inasmuch, as P.W. 6 has admitted that after forty-five minutes of the alleged occurrence he proceeded to the Police Station on foot and it took two hours time to reach to the Police Station. He further stated that he stayed for about one hour at the Police Station and after despatching P.W. 3 to Saraiya Hospital, he returned back to home. According to the learned counsel, it is highly improbable that P.W. 6 would leave P.W. 3, who had received serious injuries and had remained without any treatment for two hours forty five minutes and P.W. 6 would not take his care and leave P.W. 3 unattended in such condition. In the natural course, P.W. 6 and 7 should have taken P.W.3 first to the hospital to save his life but they first went to the Police Station and remained there for about one hour which looks highly doubtful and unnatural. It further appears that P.W. 6 has stated that Ram Nagar Rai (P.W. 3) fell down near his house but P.W. 3 has stated that he fell down at a distance of ten steps from the tractor. The house of P.W. 3 is situated at a distance of about 70-80 yards as per the evidence of P.W. 4 (Para 14). P.W. 7 also deposed that Ram Nagar Rai fell down near his house. It was therefore, suggested that P.W. 6 and 7 are not the real witnesses of the occurrence that is why they have made such contradictory statements regarding the place where P.W. 3 fell down. Similar contradictory statements have been made by P.W. 4, 6 and 7. P.W. 7 also deposed that Ram Nagar Rai fell down near his house. It was therefore, suggested that P.W. 6 and 7 are not the real witnesses of the occurrence that is why they have made such contradictory statements regarding the place where P.W. 3 fell down. Similar contradictory statements have been made by P.W. 4, 6 and 7. The inconsistencies in the evidence of P.W. 4, 6 and 7 is yet another circumstance which would go to show that they were not present at the place of occurrence and had not seen the occurrence. 33. On consideration of the evidence, facts and circumstances of the case, as discussed above, I am of the definite view that the occurrence had not taken place in the manner as alleged by the prosecution and the evidence of the eye witnesses suffers with serious infirmities and contradictions which goes to show that they are not the real eye witnesses to the alleged occurrence and since the occurrence had not taken place in the manner alleged, no independent witnesses has supported the prosecution story. I am, therefore, of the view that the prosecution had not proved its case beyond all reasonable doubts and the appellants are entitled to get the benefit of doubt. As such, I am of the view that the learned trial court was not justified in convicting and sentencing the appellants in the manner as stated above. Accordingly, the appellants are acquitted of the respective charges levelled against them and the order of conviction and sentence recorded against them is hereby set aside. 34. In the result, therefore, these appeals are allowed. The appellants, namely, 1. Suresh Rai, 2. Awadhesh Rai, 3. Shivadhar Rai, 4. Radheshyam Singh, 5. Ram Pravesh Singh Yadav (Cr. Appeal No. 478/99) and appellant Kameshwar Rai (Cr. Appeal No. 525/99), who are on bail are discharged from the liabilities of their bail bonds. The appellant Gopal Rai @ Gopalji Rai (Cr. Appeal No. 495/99), who is in custody is ordered to be set at liberty forthwith, if not wanted in any other case. Bal Krishna Jha 35. I agree.