Judgment P.N.Yadav, J. 1. The 5th May, 1998 was the most unfortunate and gloomy day for the people of village Narhi situated within the jurisdiction of Sahar Police Station of Bhojpur District, particularly the informant Umesh Kumar Rat (PW 4) on whose family descended a pall of distress and grief. In the gory and heart-rending incident giving rise to the instant case marauders said to be the members of outlawed outfit of extremists popularly known as CPI-ML caused as many as seven innocent persons residing in different parts of the village to be sent to their permanent heavenly abode. 2. The facts of the case, lay within a bit longer, compass. The informant Umesh Kumar Rai (PW 4) of village Narhi referred to above was prosecuting his study at about 3.30 p.m. on the 5th May, 1998 at his dalan (also called baithka/darwaza). He hearing sound of firing coming from the eastern side of the village moved outside dalon and noticed that Sudama Prasad, Shamsher Mian, Mushtaque Mian, Rajesh Pandit, Shambhu Sao, Hareshwar Paswan. Ali Sher Mian, Sobhan Sao, Manikchand Sao, Gupteshwar Sao, Sunil Sao, Aklu Pandit, Kamakhya Pandit, Jamalu Mian, Aas Mohammed, Suresh Sao, Ekram Sao, Sharfuddin Mian, Jugal Pandit, Bishram Kahar and Ram Kishore Rai all armed with rifles and guns raising slogans Binod Mishra Zindabad, CPI-ML Zindabad entered into his dalan and they resorted to indiscriminate firing as a result of which his grandfather Nathuni Rai who was sitting on a chauki sustained injuries and dropped dead and soon some of the miscreants broke into the room attached to the dalan wherein the informants father Rajendra-Rai and uncle Mahendra Rai had out of fear taken shelter while other miscreants were standing at the door of the room and Mushtaque Mian opened four rounds of fire on them in the room and after they dropped Gupteshwar Sao and Haresh war Paswan also fired upon them as a result of which they died. The miscreants then raising slogans like the ones referred to above and also that of took revenge of Nanora, incarnate retreated. Soon the informant heard a sound of firing resorted to by the miscreants in the northern side of the village. The informant detecting arrival of the miscreants at his darwaza had out of fear hid himself in his adjacent cow shed and he witnessed the occurrence keeping himself hidden there. Soon the informant heard a sound of firing resorted to by the miscreants in the northern side of the village. The informant detecting arrival of the miscreants at his darwaza had out of fear hid himself in his adjacent cow shed and he witnessed the occurrence keeping himself hidden there. After the miscreants left his dalan and informant went out of cow shed and found his grandfather Nathuni Rai, father Rajendra Rai and uncle Mahendra Rai dead. 3. Case further is that the informant out of fear did not go outside and he kept himself concealed and confined in his cow shed for the whole night. In the next morning, on arrival of the police he left the cow shed and went to his house situated at the main village and he learnt that, Ramayan Rai and his nephew Uma Shankar Rai@ Mantu Rai had also been murdered in the Badhar situated to the north of the village by the members of the CPI-ML. He then alongwith others went there and saw the dead bodies of Ramayan Rai and Mantu Rai lying respectively in the bushes and to the north of the Sheesham orchard. He was told by the members of the family of the deceased that they had seen and identified the killers and they would disclose their names. PW 4 then went to the darwaza of his covillager Pukar Rai who told him that the extremists had killed Venktesh Rai, Jangaldhari Rai, Baleshwar Rai and one Radha Pansari of village Bargaon. It may be mentioned that this case does not relate to the commission of murder of these four persons. 4. The incident leading to the commission of murder of the deceased referred to above, according to the informant was put to end in a sequel to the belief held by the extremists having allegiance to the CPI-ML that five members of their organisation were earlier done away with by the members of the community of the deceased and against that killing Binod Mishra had inflamed the extremists by delivering insinuating and exciting lectures. 5. The informant (PW 4) set the law in motion by getting his fardbeyan recorded by Mukteshwar Prasad, the Officer-in-charge, Sahar Police Station-cum-the Investigating Officer (PW 8) at his village at about 6.45 a.m. on the 6th May, 1998 on the basis of which Sahar P.S. Case No. 60 of 1998 was registered. 5. The informant (PW 4) set the law in motion by getting his fardbeyan recorded by Mukteshwar Prasad, the Officer-in-charge, Sahar Police Station-cum-the Investigating Officer (PW 8) at his village at about 6.45 a.m. on the 6th May, 1998 on the basis of which Sahar P.S. Case No. 60 of 1998 was registered. Investigation was taken up. The places of occurrence were inspected, inquest reports were prepared, statements of witnesses were recorded under Sec. 161, Cr PC, postmortem examination reports were collected and after completion of investigation the chargesheet was submitted and finally the trial commenced after commitment. 6. The appellants did not enter into defence. However, from the trend of cross-examination of prosecution witnesses and the statements of the appellants recorded under Sec. 313, Cr.P.C. the defence seem to be that of total denial and false implication. It has been pleaded that ugly and unfortunate incident took place in the night and the marauders escaped without having been seen and identified and in the next morning the instant case was concocted after due deliberation and the appellants were implicated out of sheer enmity, personal vendetta and group rivalry existing among the members of barring communities. 7. In order to bring home the charges levelled against the appellants the prosecution examined Hirdaya Rai (PW 1), Lallan Rai (PW 2), Mahendra Rai (PW 3), Umesh Kumar Rai, the informant (PW 4), Akhilesh Kumar Rai (PW 5), Dr. Triyugi Narayan Prasad (PW 6) and Umesh Kumar Singh (PW 7), Sub-Inspector of Police-cum-the Officer-in-charge, who took up investigation from Mukeshwar Prasad (PW 8). In consequence of his transfer and merely submitted chargesheet as investigation was virtually already completed by PW 8. Statements of Ram Sakal Rai, Birendra Rai, Surendra Rai, Phuljhara Kuer and Poonam Kumari appear to have been recorded under Sec. 164, Cr PC, during investigation but they are of no avail to the prosecution as they were not produced and examined nor were their statements referred to above legally proved and brought on records. 8. Statements of Ram Sakal Rai, Birendra Rai, Surendra Rai, Phuljhara Kuer and Poonam Kumari appear to have been recorded under Sec. 164, Cr PC, during investigation but they are of no avail to the prosecution as they were not produced and examined nor were their statements referred to above legally proved and brought on records. 8. The Trial Court after appreciating and evaluating the evidence brought on records found and held that the prosecution has been able to prove its case beyond the shadow of reasonable doubt and it accordingly rendered verdict of guilt and convicted the appellants Gupteshwar Sah, Ram Kishore Rai, Sharfuddin Mian, Aas Mohammad, Jamal Mian @ Jamalu, Shamsher Mian, Ali Sher Mian, Kamakhaya Pandit, Rajesh Pandit, Yugal Pandit and Aklu Pandit under Secs. 302/149, 148 and 449 of the Indian Penal Code (hereinafter to be referred to as the Code) as well as under Sec. 27 of the Arms Act and sentenced each of them to undergo rigorous imprisonment for life under Secs. 302/149, rigorous imprisonment for two years under Sec. 148 of the Code and rigorous imprisonment for three years under each of Sec. 449 of the Code and Sec. 27 of the Arms Act, sentences having been ordered to run concurrently, acquitting the appellant Gupteshwar Sah of the charge under Sec. 302 of the Code and acquitting Ekram Sah, Sobhan Sah, Suresh Sah, Sunil Sah, Sambhu Sah, Punardeo Sah, Bishram Kahar, Manik Chand Sah, Ekram Ram, Binod Ram, Dhanji Ram, Shukan Ram, Srikant Ram and Raj Narayan Ram of all the charges levelled against them vide the impugned judgment and order dated 28.11.2000. 9. Being aggrieved by the judgment and order of conviction and sentence passed against them the appellants Sharfuddin Mian, Aas Mohammad @ Aas Mohammad Mian, Jamal Mian @ Jamalu, Shamsher Mian, All Sher Mian , Kamakhaya Pandit, Rajesh Pandit, Yugal Pandit and Aklu Pandit preferred Cr. Appeal No. 32 of 2001 while the appellants Gupteshwar Sah and Ram Kishore Rai filed Cr. Appeal No. 37 of 2001. As both the appeals arose out of one and the same judgment they were heard together and they are going to be disposed of by this common judgment. 10. Appeal No. 32 of 2001 while the appellants Gupteshwar Sah and Ram Kishore Rai filed Cr. Appeal No. 37 of 2001. As both the appeals arose out of one and the same judgment they were heard together and they are going to be disposed of by this common judgment. 10. Before embarking upon consideration of the testimony of the prosecution witnesses, it would be relevant and convenient to refer to the contentions raised on behalf of the appellants with intent to attach vulnerability to the Judgment and order rendered by the Court below. 10. Before embarking upon consideration of the testimony of the prosecution witnesses, it would be relevant and convenient to refer to the contentions raised on behalf of the appellants with intent to attach vulnerability to the Judgment and order rendered by the Court below. Shri Singh, learned Senior Counsel for the appellants has vehemently contended that the informant Umesh Kumar Rai (PW 4) said to be the sole eye-witness has made vacillating, inconsistent and contradictory statement inasmuch as he named 21 accused persons in the First Information Report but in his evidence he named 14 accused; that in the First Information Report he averred that 15-20 miscreants resorted to firing against his grandfather Nathuni Rai but in his evidence he said he was hit by a single shot fired by one of the miscreants; that he claimed to have seen the occurrence taking place at his dalan and the room attached to it from the cow shed he had out of fear hid himself in but as a matter of fact he concealing himself in the cow shed could not have seen the occurrence; that FW 4 claimed to have disclosed the names of the accused including the appellants to other witnesses but there is no corroborative evidence to show that he had disclosed the names of the miscreants to any of PWs 1, 2, 3 and 5 that 25 accused including the appellants were put up for trial but on the same set of evidence 14 persons were acquitted and 11 persons, that is, the appellants were convicted; that the informant did not see commission of murder of Ramayan Rai and Uma Shankar Rai and he learnt about their murder from Mahendra Rai, however, even the latter was not eye-witness to commission of their murder and none who could have witnessed the same was examined by the prosecution; that medical evidence is not inconsonant with eye-witnesses account of the incident leading to the death of the deceased; that though the occurrence allegedly took place in broad daylight at about 3.30 p.m. the First Information Report was lodged on the next day at about 6.45 a.m. and there is no satisfactory explanation of inordinate delay; that all the prosecution witnesses are relatives and interested and no independent villager was examined nor was any of the members of the family of Ramayan Rai, who had claimed to have seen and identified the miscreants examined; that the genesis of the occurrence and the motive attributed behind the commission of crime was not proved and that as a matter of fact the incident leading to the death of the deceased took place in the night when the entire villagers were in deep slumber and the marauders after putting the incident to an end escaped un-seen and unidentified and the case was concocted to implicate the appellants on account of enmity, personal vendetta and group rivalry. 11. The informant Umesh Kumar Rai (PW 4) has claimed himself to be the eye-witness to the incident leading to the commission of murder of Nathuni Rai, Rajendra Rai and Mahendra Rai, who were his grand father, father and uncle respectively. As per his evidence while he was prosecuting his study at his dalan at about 3.30 pm., he detecting arrival of 15-20 miscreants hid himself in his cow shed and from there he saw that they resorted to indiscriminate firing against his grandfather Nathuni Rai causing his instant death and though his father Rajendra Rai and uncle Mahendra Rai in a bid to save their lives entered into the room referred to above and bolted the same from inside but the miscreants broke open the door and some of them entered into the room while others kept standing at the door and Mushtaque Mian opened four rounds of fire upon Rajendra Rai and Mahendra Rai and after they dropped Gupteshwar and Hareshwar also opened fire upon them in the room as a result of which they sustained injuries and succumbed to the injuries instantaneously on the spot. Mushtaque and Hareshwar did not face trial in the case at hand, perhaps, on account of their abscondence. The witness had out of fear hid himself in the cow shed behind Nad-Charan and at that time he must be frightened and perplexed. Under such circumstance, he was not expected to have seen and identified the miscreants. Besides, when a number of miscreants were standing at the door of the room PW 4 could not have seen Mushtaque, Hareshwar and Gupteshwar opening fire inside the room where Rajendra Rai and Mahendra Rai had lodged themselves. Further PW 4 in his cross-examination stated that only one shot had hit his grand-father Nathuni Rai, meaning thereby one of the miscreants had opened fire upon him though in his fardbeyan and examination-in-chief he said that all the miscreants showered bullets on him from a close range. 12. The informant (PW 4) in his fardbeyan claimed to have identified 21 miscreants but in his evidence he named only 14 accused. Admittedly, the accused persons belonged to five villages, namely, Narhi, Pauna, Nanour, Muazaffarpur and Dhanchua. He has stated in his cross-examination that village Dhanchua is situated 15-16 Kms. away from his village and he has no concern with that village nor did he ever visit the same. Admittedly, the accused persons belonged to five villages, namely, Narhi, Pauna, Nanour, Muazaffarpur and Dhanchua. He has stated in his cross-examination that village Dhanchua is situated 15-16 Kms. away from his village and he has no concern with that village nor did he ever visit the same. Under the circumstance, it would be too much to believe that PW 4 really saw and identified 20-21 miscreants. 13. In his examination-in-chief, PW 4 stated that he narrated the incident including the names of the miscreants to his brother Akhilesh Kumar Rai (PW 5), Hirdaya Rai (PW 1), Lallan Rai (PW 2) and Mahendra Rai (PW 3} in the next morning when he leaving his cow shed went to his village home but no such statement was made by him in his fardbeyan or even in his statement under Sec. 161, Cr PC, PWs 1, 2, 3 and 5 stated that PW 4 had disclosed the names of the appellants and other accused persons to them but they too did not speak like that before PW 8 during investigation. PW 5 further claimed that while he was proceeding to his dalan after hearing sound of firing he saw and identified the accused persons including the appellants who has opened fire upon him as well but he luckily escaped and hid himself in his residential house, however, no such statement was made by him under Section 161, Cr PC. There is no material on records to show that the miscreants had opened fire upon PW 5. There is no material on records to show that the miscreants had opened fire upon PW 5. Again PW 5 stated that PW 3, Mahendra Rai told him that the killers of his grandfather, father and uncle had also murdered Ramayan Rai and Uma Shankar Rai but he was contradicted by the Investigating Officer (PW 8} who stated that he made no such statement before him nor did PW 3 speak of making such narration to PW 5 nor did he say in his evidence that Ramayan Rai and Uma Shankar Rai were murdered by the killers of grandfather, father and uncle of PW 4 and PW 5, PW 3 claimed to have seen Sunil Kahar and Rama Kant Rai chasing the deceased Ramayan Rai and Uma Shankar Rai, who did not face trial in the instant case but his this statement too gets belied in view of his statement in his cross-examination that he could learn about the incident from the informant (PW 4). Admittedly neither PW 3 , nor PW 5 witnessed commission of murder of any of the deceased. 14. The informant (PW 4) and Akhilesh Kumar Rai (PW 5) are full brothers, PW 1 Hirdaya Rai is their grandfather. The learned counsel for the appellants has submitted that PWs 2 and 3 are also agnates of PW 4 though no such specific suggestion was put to him in course of cross-examination. It has come in evidence that Narhi where the incident took place is a very big village having 300 houses and people of different caste resided there but none of independent villagers came forward to depose in the case. Even Ayodhya Rai or his wife who allegedly sustained injury was not examined nor was any member of the family of Ramayan Rai and Uma Shankar Rai examined nor was examined Shiv Jee Rai who narrated the incident leading to commission of murder of Venkesh Rai and three others to PW 4, though, of course, the case is not related to their murder. It is true that it is not incumbent upon the part of the prosecution to examine all the witnesses or villagers who are conversant with the facts of the case and conviction can be based on uncorroborated testimony of relatives and interested witnesses provided their evidence is above board but in the case at hand ocular evidence suffers from inherent taint and infirmity and it does not inspire confidence and as such some independent villagers ought to have been examined and their non-examination cast a doubt on the prosecution case. 15. Medical evidence too is incon-sistent with eye-witness account of the incident. As per ocular evidence indiscriminate firing was made by 15-20 miscreants on the deceased Nathuni Rai, Rajendra Rai and Mahendra Rai, but the doctor (PW 6) conducting autopsy found a wound of entry and a wound of exit on each of the deceased and that would mean that only one shot had hit each of them. 16. In view of what has been stated and observed in the preceding paragraphs none of PWs 3, 4 and 5 can be accepted as eye-witness to the incident leading to the commission of murder of the deceased. 17. Evidence of PW 7 Umesh Kumar Singh, the second Investigating Officer, who merely submitted chargesheet and PW 8, Mukeshwar Prasad, who had taken up investigation and had brought the same to its logical conclusion need not be discussed at length. However, it may be mentioned that from the statement of PW 8, it would transpire that none of the villagers including the inmates of the houses of the deceased cared to inform the police of the incident and he could visit the scene of the incident on the next day on the basis of wireless message in respect of commission of a non-cognizable offence and not commission of murder. 18. The contention put forward by Shri Singh that it has come in evidence that the appellants cultivate land on batai basis for their livelihood and they cannot be expected to have taken extreme steps of killing 8-9 innocent persons of the village also seems to be pregnant with meaning and substance. 19. 18. The contention put forward by Shri Singh that it has come in evidence that the appellants cultivate land on batai basis for their livelihood and they cannot be expected to have taken extreme steps of killing 8-9 innocent persons of the village also seems to be pregnant with meaning and substance. 19. The discussions made above would reveal that there are several circumstances, discrepancies, short comings and improbability in the evidence of the witnesses affecting credibility of prosecution version and as such it would not be just, proper and expedient in the interest of justice to put reliance on the evidence and to base conviction thereon. 20. It has come in the evidence that 20-30 rounds of fire were made by the miscreants at about 3.30 p.m. None said that the miscreants laid seige of the village for the whole night. It is also in evidence that 30-35 licensee rifles/guns were in the village. Had the occurrence taken place in broad daylight inhabitants of 300 houses of the village having 30-35 licensee fire arms would not have remained silent spectators and they must have resisted and repulsed the activities of 20-25 miscreants. The incident must have taken place within a few minutes. The statements of the witnesses that they out of fear remained confined and hidden in their houses from 3.30 p.m. to 6.30 a.m. in the next morning and they could go out of their houses only on arrival of the police does not seem to be worthy of credence. After the incident was put to an end within a few minutes, say, latest by 4.00 p.m. someone from amongst the villagers was expected to have informed the police by the evening as the police station situated not too far away from the place of occurrence but none of the villagers informed the police. After the incident was put to an end within a few minutes, say, latest by 4.00 p.m. someone from amongst the villagers was expected to have informed the police by the evening as the police station situated not too far away from the place of occurrence but none of the villagers informed the police. From the facts and circumstances attending to the case and the statements of the witnesses the conclusion that emerges is that the gory incident leading to the death of the deceased took place sometime in the late night and the miscreants responsible for committing brutal and dastardly murder escaped unseen and unidentified and the accused including the appellants were on surmises and conjectures charged with mowing down the victims or they might have been roped in the case out of enmity, personal vendetta and group rivalry on due deliberation after 15 hours from the alleged time of occurrence for, as already stated it is not possible to hold that all the witnesses out of fear confined themselves in their houses for- 15 hours and they could go out of their houses only after arrival of the police in the next morning at 6.45 a.m. when the miscreants must have left the village within a few minutes after putting the incident to an end at 3.30 p.m. 21. The genesis of the occurrence and the motive impelling the accused including the appellants to commit cold blooded murder of the deceased as alleged in the First Information Report and the evidence of PW 2 is that earlier a barat party visited the village Nanaura on the eve of marriage ceremony of the son of Shivadhar Kahar, a co-villager of the prosecution witnesses where firing was resorted to while cultural programme (dance) was going on as a result of which five persons lost their lives and they alleged that it was the castemen of the informant who had resorted to firing killing the five persons referred to above and it was Binod Mishra, who by investigating the miscreants, that is, members of C.P.I.-ML got the deceased killed by way of revenge of Nanaura incarnage but the crux of the matter is that there is absolutely no evidence to prove genesis and motive alleged by the prosecution. None of the prosecution witnesses could even say whether any case was instituted in respect of the incident taking place at village Nanaura where five innocent persons lost their lives and whether any of the deceased or the witnesses of the present case was made accused in the case of Nanaura incident. The alleged genesis of occurrence and motive impelling the miscreants to commit the crime thus remained unproved, 22. As the position stands 14 accused persons were acquitted and the remaining 11 accused, that is, the appellants were convicted on the basis of evidence common to all of them. The evidence of the sole eyewitness has been found to be not convincing and acceptable. The other witnesses were not eye-witnesses to the occurrence. Ocular evidence is not in consonance with medical evidence. There was inordinate delay in lodging the First Information Report. The prosecution case rests on testimony of relatives and interested witnesses. Genesis and the motive could not be proved. The reasons given for acquittal of the other 14 accused persons would in our opinion apply to the case of the appellants as well and they also deserve to be extended the benefit of doubt. Similar view was taken in the case reported in Hardayal Singh V/s. State of Punjab. 23. Shri Sinha, learned State counsel assisted by the learned advocate for the informant relying on the case of Leela Ram (d) through Dulichand V/s. State of Haryana and another, and the case of Bachan Singh and others V/s. State of Bihar, has urged that merely because the witnesses are relatives and interested and there is discrepancy in ocular evidence and medical evidence in regard to the number of injuries found on the person of the deceased and the number of assailants inflicting the injuries the entire prosecution evidence cannot be thrown over board. There is no dispute in regard to the principle of law enunciated in the cases referred to above that inconsistency and discrepancy in ocular evidence and medical evidence in regard to number of shots fired on the victims and the number of injuries found on their persons is immaterial in the matter of assessing the culpability of the assailants and no important significance is to be attached to such discrepancy unless the same is shown to be vital adversely affecting the edifice of prosecution case and that the evidence of relatives and interested witnesses without corroboration by independent evidence cannot be discarded outright and conviction can well be based on such evidence if it is found to be above board and wholly acceptable. The test prescribed in the cases cited at the bar has not been satisfied in the case at hand and as such the cases relied upon by the prosecution cannot come to salvage the prosecution case of its infirmities and lacunae. As already observed, the evidence of the witnesses is visited by circumstances, discrepancies, improbabilities and short comings touching and affecting credibility and reliability of the prosecution version and the appellants could not be convicted with the aid of the principle laid down in the cases referred to above. 24. The facts, circumstances and evidence discussed in the preceding paragraphs would give rise to the inevitable and irresistible conclusion that the prosecution miserably failed to establish its case beyond all shadows of reasonable doubt. Unfortunately, the killers of the deceased would go unpunished. The appellants deserve to be extended the benefit of doubt. 25. The appellants are, accordingly, given benefit of doubt and they are acquitted of the charges levelled against them. The judgment and order of conviction and sentence passed against them by the Court below are set aside. The appellants have been languishing in jail. Let them be directed to be released forthwith if not wanted in any other case. 26. Both the appeals stand allowed. Indu Prabha Singh, J. 27 I agree.