Judgment Indu Prabha Singh and P.N.Yadav JJ. 1. All these appeals arise out of the same judgment, they have been heard together and are being disposed of by this common judgment. 2. The appellants of the aforesaid appeal have been convicted under Section 302/34 of Indian Penal Code and were sentenced to undergo rigorous imprisonment for life, they had further been convicted under Section 307/34 of Indian Penal Code, and were sentenced to undergo rigorous imprisonment for ten years and they were also convicted under Section 27(i) of Arms Act, and were sentenced to undergo rigorous imprisonment for seven years. However, all the sentences were ordered to run concurrently. 3. The brief facts of the case is that on 1.7.1991 at 5 p.m. the informant (Satrughan Singh Yadav) along with his younger brother Chandra Madhaw Singh, Umesh Singh and Chandrama Singh were returning from Bikramganj Court through Natwar Bazar. When they reached south of canal bridge of Ashiyan Tola the accused persons Jag Narayan Singh, Kanhaiya Singh came from east and Nand Kumar Singh, Ashok Singh, Ram Raj Singh and Ram Bilas Singh came from south. It has been alleged that all these accused persons surrounded the deceased Chandra Madhaw Singh, the younger brother of the informant. He (deceased, Chandra Madhaw Singh) jumped in the drain, full of water, situated in the west of the canal. The informant and other persons went towards west. Thereafter the accused Ram Bilash Singh accosted to kill Chandra Madhaw Singh and also fired a short from his gun. Thereafter Jag Narayan Singh, Nand Kumar Singh, Ashok Singh and Ram Raj Singh also opened fire but everybody missed the target, which was in the water. It has been stated that Chandra Madhaw Singh came out of the water and tried to run away but the accused Ram Raj Singh and Ashok Singh caught hold of him and Jag Narayan Singh fired his pistol from the close range. The bullet hit the head of the deceased and the deceased fell down near the canal bridge. It has been stated that when the deceased Chandra Madhaw Singh fell down Nand Kumar Singh fired his weapon causing injury on the right arm of the deceased Chandra Madhaw Singh, thereafter Kanhaiya Singh gave spade (Kudal) blow on his head. It has been stated that accused Ram Bilash Singh and Kanhaiya Singh were armed with DBBL guns and. It has been stated that when the deceased Chandra Madhaw Singh fell down Nand Kumar Singh fired his weapon causing injury on the right arm of the deceased Chandra Madhaw Singh, thereafter Kanhaiya Singh gave spade (Kudal) blow on his head. It has been stated that accused Ram Bilash Singh and Kanhaiya Singh were armed with DBBL guns and. Ashok Singh and Nand Kumar Singh armed with country made pistol. Accused Jag Narayan Singh was armed with rifle. The informant and others raised alarm. Thereafter the accused persons fled away. Thereafter the informant came near the deceased Chandra Madhaw Singh and saw his brother lying in injured condition. It has been stated that other persons came and also saw the occurrence. It has been further stated that after killing Chandra Madhaw Singh the accused persons went to the village and raised triumph (Jaikara) near the house of the informant and fired few shots causing injury to Smt. Urmila Devi. Thereafter the fardbeyan of the informant was recorded and a case under Section 302 of the Indian Penal Code, was registered against the accused persons. After completion of the investigation, chargesheet was submitted, accordingly cognizance was taken and the case was committed to the Court of Sessions for trial. Ultimately the trial concluded with the results as indicated above. Hence this appeal. 4. The appellants have pleaded no guilt and have stated that they all are innocent and they have been implicated in this case due to previous enmity. The prosecution in support of their case examined altogether 12 witnesses. PW 1 is Suraj Narain Singh, who claims to be the eye-witness and the brother of PW 4, PW 2 is Babu Dhan Singh, who is nephew of PW 1. PW 3 is Shiv Shankar Singh, who is son of PW 1. PW 4 is Chandrama Singh, who is FIR named witness and is brother of PW 1. PW 5 is Umesh Singh, he too is FIR named witness and is son of PW 1, PW 6 is Mrs. Urmila Devi, daughter of PW 1, PW 7 is Sitaram Singh Yadav, nephew of PW 1, PW 8 is Shatrughan Singh Yadav, he is informant of this case. PW 9 is Dr. Devendra Tripathy, who has conducted post-mortem examination on the person of the deceased Chandra Madhaw Singh. PW 10 is also Dr. Urmila Devi, daughter of PW 1, PW 7 is Sitaram Singh Yadav, nephew of PW 1, PW 8 is Shatrughan Singh Yadav, he is informant of this case. PW 9 is Dr. Devendra Tripathy, who has conducted post-mortem examination on the person of the deceased Chandra Madhaw Singh. PW 10 is also Dr. Dina Nath Pandey, who examined the injured Urmila Devi, PW 6. PW 11 is Aditya Narayan Mishra, the Investigating Officer. PW 12 is Hira Lal Singh, who is a police constable. The defence has also examined four witness. DW 1 is Jokhu Chawkidar. DW 2 is Rajendra Singh, DW 3 is Raj Nath Singh and DW 4 is Jag Narayan Singh. 5. The informant PW 8 Shatrughan Singh Yadav has fully supported the case of prosecution as stated in his fardbeyan. According to him on the date of occurrence he had gone to Bikramganj Court to attend a proceeding under Section 107 of the Code of Criminal Procedure. His brother Chandra Madhaw Singh and PW 5 Umesh Singh had also accompanied him at Natwar Bazar, PW 4 Chandrama Singh and PW 1 Suraj Narain Singh also joined them. Thereafter they proceeded for village Kishunpura through a short cut road and reached at Ashiyan canal bridge. According to him after crossing the bridge they saw appellants Ram Raj Singh, Ashok Singh, Ram Bilash Singh and Nand Kumar Singh coming from east. They all were armed with weapons. According to him Jag Narayan Singh came with rifle and Kanhaiya Singh came with spade. Ram Bilash Singh accosted the other accused persons to kill Chandra Madhaw Singh, who ran for safety and jumped in water. The water was sufficient to drown but the accused persons started firing on the deceased, Chandra Madhaw Singh, who was hiding himself under water as such bullet did not hit him. After sometime Chandra Madhaw Singh had to come out of the water as he was getting suffocated in the water and wanted to flee but was caught by the appellant Ashok Singh and Ram Raj Singh as soon as he came out from the water. They brought him on the bridge and Jag Narayan Singh fired his rifle at the temple (kanpatti) of the deceased. The appellant Nand Kumar Singh fired his katta on the right hand of the deceased. They brought him on the bridge and Jag Narayan Singh fired his rifle at the temple (kanpatti) of the deceased. The appellant Nand Kumar Singh fired his katta on the right hand of the deceased. He has also stated that Jag Narayan Singh, Ram Raj Singh and Ram Bilash Singh asked Kanhaiya Singh to cut the body of the deceased at places where fire arms injury was there with spade (kudal) thereafter Kanhaiya Singh followed the order and cut the body with spade (kudal). Thereafter he along with Umesh Singh, Chandrama Singh, Suraj Narayan Singh and Babu Dhan Singh went near the place where Chandra Madhaw Singh was shot at. He has stated that he was dead by that time. He also saw a kudal and empty rifle ammunitions, both stained with blood. Blood was also spread on the spot. Thereafter police came and some villagers had also come. One of them Sitaram Singh informed him that accused had also fired at the house of deceased causing injury to Smt. Urmila Devi. He alleged that his statement was recorded by the police PW 4, thereafter it was read over to him and he put his signature over it, Sitaram Singh had also signed over it, which is Exhibit 1. The other witnesses PW 1, PW 2, PW 3, PW 4 and PW 5 have also supported the version of the informant PW 8 Shatrughan Singh Yadav, PW 6 Smt. Urmila Devi, who is daughter of Shatrughan Singh Yadav. According to her when she was at dalan of her father in the village, Ashok Singh, Ram Bilash Singh, Ram Raj Singh, Jag Narayan Singh, Kanhaiya Singh and Nand Kumar Singh came from east they made noise of triumph uttering that Chandra Madhaw Singh has been killed and they started firing also. According to her one pillet hit her oh the right side of her face, which is below the right eye. She was given medical aid at Natwar Hospital. Her statement was also recorded by the police. PW 4 Sitaram Yadav has stated that all the accused appellants came from Ashiyan side at about 6 p.m. and they made noise of triumph (jaikar) that Chandra Madhaw Singh has been killed. They also fired on the house of informant Shatrughan Singh Yadav causing pillet injury to Urmila Devi. PW 9 is Dr. PW 4 Sitaram Yadav has stated that all the accused appellants came from Ashiyan side at about 6 p.m. and they made noise of triumph (jaikar) that Chandra Madhaw Singh has been killed. They also fired on the house of informant Shatrughan Singh Yadav causing pillet injury to Urmila Devi. PW 9 is Dr. Devendra Tripathy, who has conducted the post-mortem examination of the deceased Chandra Madhaw Singh. According to him he was posted as Assistant Civil Surgeon, Sadar Hospital, Sasaram and he found the following an-te-mor-tem injuries on the person of the deceased Chandra Madhaw Singh : (1) An incised wound 8"x2" and cavity deep on right lateral side of the head extending from right side of occipital region dividing right ear and bones into two parts. (2) An incised wound l"x 1/2"x bone deep on the left temporal region. (3) An incised wound on right arm of 2"xl-l/2"xl" in front interioritly. (4) On dissection of head he found frontal and right occipital bone fractured. Brain substance lacerated and full of blood. As the injury No. 2 and 3 been mentioned as would due to firearm, accordingly vigorous search was made, but no pillet was recovered from the body. (5) Lungs normal, both cardiac chamber almost empty. Stomach contained three ounce of fluid only. (6) All injuries were an-te-mor-tem in nature and caused by sharp edged weapon, such as Kudal. Death is due to head injury as a result of injury Number 1. Time elapsed since death within 24 hours. The post-mortem report is Exhibit 2. In the opinion of the Doctor he did not find any sign of fire arms injury. PW 10 is Dr. Dina Nath Pandey, the Medical Expert, who has examined the injury of Urmila Devi and according to him on 2.7.1991 he was posted as Medical Officer at Additional Primary Health Centre, Natwar. On that date he examined Urmila Devi and found the following injury on her person : (1) One oval lacerated wound 1/4 c.m x 1/4 c.m. on right side of nose, below right eye. PW 11 is Aditya Narain Mishra, Investigating Officer. According to him he was posted at Natwar P.S. on the date of occurrence. He received an information from Chowkidar Jokhu Singh that a man has been killed near Ashiyan bridge and he proceeded for the place of occurrence with the armed constables. PW 11 is Aditya Narain Mishra, Investigating Officer. According to him he was posted at Natwar P.S. on the date of occurrence. He received an information from Chowkidar Jokhu Singh that a man has been killed near Ashiyan bridge and he proceeded for the place of occurrence with the armed constables. He reached at the place of occurrence. He recorded the statement of informant Shatrughan Singh Yadav. He proved the fardbeyan of the informant PW 8, which is Exhibit-4. He also proved the formal first information report which is Exhibit-5 and thereafter he prepared the inquest report of the deceased. According to him he inspected the place of occurrence and recovered an empty blood stained 315 bore ammunitions, blood stained kudal and blood stained earth. He also prepared the seizure list of these articles which is Exhibit 7. According to him the seizure list was prepared by him in presence of Umesh Singh and Babu Dhan Singh. He has stated that he has found a pool of blood at the place of occurrence and thereafter recorded the statement of the witnesses available on the spot. He has sent the body of the deceased for post-mortem examination. He raided the house of the accused but none was available. He recorded the statement of injured Urmila Devi and issued the injury slip Exhibit-8. According to him he did not send the blood stained materials to any laboratory for test. PW 12 is Hira Lal Singh, a police constable. He is a formal witness. He has brought the material Exhibits of the case i.e. blood stained kudal, blood stained empty rifle cartridge and blood stained earth. 6. Learned counsel for the appellants has submitted that in the first information report only names of PW 3 and 4 have been stated. PW 8 is informant, Shatrughan Singh Yadav. He has not stated in the first information report that all the appellants told Kanhaiya Singh to cut the parts of the person of the deceased where fire arms injuries were there, the later part of the prosecution story is improvement of the story earlier narrated by the informant to match the medical experts report. He has not stated in the first information report that all the appellants told Kanhaiya Singh to cut the parts of the person of the deceased where fire arms injuries were there, the later part of the prosecution story is improvement of the story earlier narrated by the informant to match the medical experts report. It has been further submitted that all the witnesses belong to the same family and are interested witnesses, as such, on their testimony alone, the conviction of the appellants who are admittedly on the enmical term, is not proper and is fit to be set aside. It has been stated that PW 1 is brother of PW 4. PW 2 is son of PW 4. PW 3 and 5 are sons of PW 1 and PW 6 is daughter of PW 1 whereas PW 7 is nephew of PW 1. It has been submitted, that PW 8, the informant has submitted in paragraph 22 and 23 of his deposition that he is an accused in murder case of Ram Ashray Yadav, who is brother of appellant Jag Narayan Singh and Nand Kumar Singh. The appellant Ram Bilash Singh and Ram Raj Singh are witnesses in that case which shows that there was enmity between the appellant and informant PW 8 and false implications of appellants could not be ruled out. It has been emphatically stated that medical report does not support the prosecution case at all. According to the medical report all the injuries were by sharp cutting weapon and were an-te-mor-tem, no mark of tatooing, charring or burning was found near temple even though according to the prosecution story firing was done from very close range. The Doctor did not find entry or exit mark of wound neither bullet/pillet was recovered from the body of deceased Chandra Madhaw Singh. In view of this submission the defence of appellant is that the deceased was killed by someone else in some other manner and taking advantage of his murder the informant has tried to falsely implicate the appellants to take revenge of established previous enmity. In support of his submission he has relied on a decision reported in the case of Vijay Kumar @ Sharma and others V/s. The State of Bihar, since reported 2004 (2) PLJR 32 . In support of his submission he has relied on a decision reported in the case of Vijay Kumar @ Sharma and others V/s. The State of Bihar, since reported 2004 (2) PLJR 32 . In this decision it was held that injuries found by medical expert is not in consonance with the story narrated by the prosecution witness. It was further held that though ocular evidence normally takes precedence over the medical evidence, if the evidence of eye- witness are reliable and trust inspiring. There was vital omission in the statement of eye-witnesses but the case so cited and their testimony did not inspire such confidence to conclude that they should prevail over the medical evidence. Also no bias against the doctor had been suggested during course of evidence, thus in view of injuries as claimed by prosecution and according to the opinion of the medical expert serious doubt is created over the prosecution case relating to manner of occurrence. Accordingly benefit of doubt was given to the accused persons in the aforesaid decision. In the case in the hand it was pointed out that there are discrepancies in evidence and early statement. 7. To appreciate the statements so raised by the learned counsel for the appellants, scrutiny of the testimonies of the witnesses has to be done and considered. In this case all the witnesses on factum except the informant PW 8 are of the same family and are closely related to each other and also connected with informant. Informant PW 8 was in enmical term with the appellants, Nand Kumar Singh and Ram Bilash Singh and his son Ashok Singh. As such the witnesses are highly interested. It is true that testimony of interested and partisan witnesses, can not be disbelieved outright, only in such case the Court has to be more careful in scrutinising their testimony. However, in the present case the ocular evidence about the manner of occurrence and also about assault on the person of deceased has been negated by the medical report given by the Doctor, who held the post-mortem examination on the deceased. However, in the present case the ocular evidence about the manner of occurrence and also about assault on the person of deceased has been negated by the medical report given by the Doctor, who held the post-mortem examination on the deceased. According to the ocular evidence Jag Narayan Singh fired from his rifle at the deceased on his temple (kanpatti) from very close distance but doctor who conducted the post-mortem examination of the deceased did not find any sign of fire arms injuries to support this ocular version of all the witnesses. It is also pertinent that there was no mark of burning, tatooing and charring and also there was no exit and entry wound found which is expected from bullet of 315 calibre if rifle was fired as alleged. Even bullet was not recovered from the person of the deceased if trapped Inside, during post-mortem, examination. 8. According to the prosecution story there should have been another fire arms injury also on the right shoulder but according to the medical expert injuries found was, one incised wound on the occipital region extended from right side of forehead up to right ear and other on the left temporal region. The third injury was on the right armpit of interiorly. Thus the injuries found by the doctor falsifies the ocular version of the witnesses about the manner of assault on the person of the deceased. In that view of the matter the witnesses being interested there is probability that. they might not have actually seen the occurrence and may have falsely implicated the appellants, On this point the decision of this Court reported in 2004(2) PLJR 32 (supra) is specifically clear and as the testimony of witnesses which is totally not inconsonance of the medical expert and does not inspire confidence should be discarded. they might not have actually seen the occurrence and may have falsely implicated the appellants, On this point the decision of this Court reported in 2004(2) PLJR 32 (supra) is specifically clear and as the testimony of witnesses which is totally not inconsonance of the medical expert and does not inspire confidence should be discarded. As submitted by the learned counsel, that, there is attempt by the prosecution to improve its earliest version, according to earliest version appellant Kanhaiya Singh after felling down the deceased on the ground gave spade blow on his head but later on the informant to match the incised injuries reported by the Doctor had stated that after deceased was being hit by rifle and pistol appellant Kanhaiya Singh was ordered by appellants Jag Narayan Singh, Ram Bilash Singh and Ram Raj Singh to create incised injury by spade at all the points where there was fire arms injuries on the person, of the deceased. However, by cutting the person of the deceased the earlier fire arms injuries if it was actually caused could not be altogether vanished. As such this effort made by prosecution witnesses to match the incised injury report of the doctor further creates doubt in their statements. The witnesses during investigation have not mentioned about this instruction given to Kanhaiya Singh by the other appellants to cut with spade (kudal) wherever the fire arms injuries were there on the person of the deceased. This fact was supported by the Investigating Officer, when his attention was drawn, he has stated that the witnesses did not mention about this fact that Kanhaiya Singh was directed by the other appellants to cut the injuries with kudal. 9. In view of above discussion it is evidently clear that the prosecution has badly failed to prove its case beyond all reasonable doubts and appellants deserve benefit of doubt. Accordingly, they are acquitted of the charges levelled against them. The conviction and sentence awarded by the Court below against the appellants are set aside and the appellants are set at liberty. It has been stated by the learned counsel for the appellants that the Appellants Jag Narayan Singh of Cr. Appeal No. 38 of 2000 (D.B.) and Kanhaiya Singh of Cr. Appeal No. 97 of 2000 (D.B.) are in custody. They are directed to be released forthwith, if not wanted in any other case. It has been stated by the learned counsel for the appellants that the Appellants Jag Narayan Singh of Cr. Appeal No. 38 of 2000 (D.B.) and Kanhaiya Singh of Cr. Appeal No. 97 of 2000 (D.B.) are in custody. They are directed to be released forthwith, if not wanted in any other case. The appellants namely Ram Bilash Singh, Ram Raj Singh and Ashok Singh (Cr. Appeal No. 86 of 2000 (DB) and Nand Kumar Singh. (Cr. Appeal No. 90 of 2000 (DB) are on bail. They are discharged from the liability of their bail bonds. 10. In the result all these appeals are allowed.