Judgment Mridula Mishra, J. 1. All these four appeals were preferred by the appellants against the judgment and order dated 17th May, 1986 passed by the 4th Additional Sessions Judge, Arrah in Sessions Trial No. 221 of 1982. These appeals were heard together and disposed of by a common judgment by this Court dated 3.4.1998, whereby all the appeals were dismissed and the conviction and sentence passed by the trial court against the appellants affirmed. Appellants preferred Cr. Appeals before the Supreme Court of India and the Supreme Court of India has remanded all these appeals for re-hearing by this Court by order dated 5.10.2004 after setting aside earlier judgment and order passed by this Court. 2. Originally there were nine appellants in all four appeals. During the pendency of these appeals before the High Court Md. Allauddin alias Alluddin Mian died. Another appellant Md. Mustaquim died when the appeal was pending before the Supreme Court. They were appellants in Cr. Appeal No. 270 of 1986 alongwith Jeobodhan Singh, Hiralal Yadav, Kalyan Yadav. Lalmuni Yadav and Shri Kishun Yadav alias Shri Krishna Yadav alias Shri Krishna Singh were appellants in Cr. Appeal No. 272 of 1986. In Cr. Appeal No. 328 of 1986 Bisendra Singh was appellant and Lallu Yadav was the appellant in Cr. Appeal No. 341 of 1986. 3. All the appellants in aforesaid four criminal appeals have been found guilty under section 435/149 of the Indian Penal Code and each of them have been sentenced to undergo rigorous imprisonment for two years. Appellant Bisendra Singh and Lallu Yadav have been found guilty under section 302/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. Appellant Bisendra Singh, Lallu Yadav, Lalmuni Yadav, Shri Kishun Yadav alias Shri Krishna Yadav alias Shri Krishna Singh have further been held guilty under section 148 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for two years. Appellant Jeobodhan Singh, Hiralal Yadav and Kaiyan Yadav have been convicted under section 147 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one year. Appellants of Cr. Appeal No. 270 of 1986 and 272 of 1986 were acquitted under section 334 of the Indian Penal Code as they were not found guilty. 4. The prosecution case according to fard beyan (Ext. Appellants of Cr. Appeal No. 270 of 1986 and 272 of 1986 were acquitted under section 334 of the Indian Penal Code as they were not found guilty. 4. The prosecution case according to fard beyan (Ext. 4) of Munna Singh (P.W.4) recorded by S.A.A. Z. Kamal of Dumraon Police Station on 21.12.1980 at village Bhadi Tola at 11 A.M. disclosed that Munna Singh (P.W. 4) alongwith his father Shyam Bihari Singh (deceased) had been in their Khalihan to watch the harvested crops and thrashed during day time on 20.12.1980. Accused Lallu Yadav of Bodhi Tola who lived adjacent west of the informants Khalihan came and asked for Rehat on which informants father (deceased) refused to oblige as he himself was in its need for irrigating his own land whereupon Lallu Yadav went away annoyed. In the night in between 20/21.12.1980 the informant was sleeping in Khalihan on the straw where the father Shyam Bihari was sleeping nearby a Pipal tree. All on a sudden the informant woke up hearing the barking of dogs at about mid night and flashed his torch light in which he noticed 8-9 persons who came close to Khalihan. He saw Lallu Yadav with a D.B.B.L. Gun, Bisendra Singh armed with single barrel gun, Lalmuni Singh with Bhala, Srikishun Yadav with pipe gun, Alauddin and Mustaqim with rifle and gun respectively. Jeobodhan Singh with lathi and torch, Hira Lal Yadav and Kalyan Yadav with Lathi. On seeing the informant, Jeobodhan Singh alerted his men and asked them to take care of Munna Singh (P.W. 4) so that he may not escape. The informant was frightened and asked his father Shyam Bihari Singh to run away. In the meantime Lallu Yadav shot at informants father while he was getting up on the straw. Thereafter Bisendra Singh also shot at Shyam Bihari Singh. The informant ran away calling his uncle Chotan (RW. 2) who was in the adjoining Khalihan and he also awakened one Chotey Lal Singh (RW. 3) to go near his father. RW. 4 himself went to the village for help. While going towards village the informant saw flames of fire in the Khalihan. 5. On the basis of the fard beyan (Ext. 4) a formal F.I.R. (Ext. 3) was drawn up and on the close of investigation charge- sheet was submitted in the case on 28.1.1981 against all the accused persons. RW. 4 himself went to the village for help. While going towards village the informant saw flames of fire in the Khalihan. 5. On the basis of the fard beyan (Ext. 4) a formal F.I.R. (Ext. 3) was drawn up and on the close of investigation charge- sheet was submitted in the case on 28.1.1981 against all the accused persons. Cognizance was taken and the accused were committed to the court of sessions for trial. The accused persons at the trial pleaded not guilty to the charges framed against them and they asserted that they were quite innocent and that their implication in the present case was false and fabricated on account of previous enmity. Shyam Bihari Singh was killed by some unknown persons. 6. The prosecution examined six witnesses out of them P.W. 6 Raj Govind Singh is the I.O. of the case. RW. 4 Munna Singh is the informant and son of deceased Shyam Bihari Singh. Chhotelal Singh RW. 3 and Ram Kumar Singh alias Chhotan Singh RW. 2 are witnesses on the point of occurrence. RW. 1 Vijay Bahadur Singh is the seizure list witness and P.W. 5 M.M. Nasir Hussain is another formal witness who has come to prove the entry in post mortem register in absence of the doctor who held the post-mortem examination. P.W. 2 in his deposition has said about inter-se relationship of the accused persons as well as the relationship of P.W. 2, P.W. 3 and P.W. 4 with the deceased. The defence also examined one witness D.W. 1 Murat Ram, apart from some documentary evidence out of which Ext. A is the S.D. Entry No. 541 dated 21.12.1980 and Ext. B and C are certified copies respectively of the complaint petition no. 540 of 1980 and deposition of one Bantu Singh in case no. 517 (c) of 67. 7. In this case P.W. 2 Ram Kumar Singh and P.W. 3 Chhote Lal Singh both have claimed that they were sleeping in the Khalihan which is close to the Khalihan of Shyam Bihari Singh. P.W. 3 Chhote Lal Singh has stated that in the mid of the night of 20.12.1980 he was in his Khalihan and Shyam Bihari was sleeping in his own Khalihan. Suddenly he woke up on hearing barking of dogs. P.W. 3 Chhote Lal Singh has stated that in the mid of the night of 20.12.1980 he was in his Khalihan and Shyam Bihari was sleeping in his own Khalihan. Suddenly he woke up on hearing barking of dogs. P.W. 4 Munna Singh flashed his torch and in the light of the torch he saw 18-20 persons coming from southern direction. He identified Lallu Yadav with D.B.B.L. gun. Bisendra Singh with single barrel gun, Lalmuni Singh with Bhala, Srikishun Yadav with pipe gun. Alauddin and Mustaqim with rifle and gun respectively, Jeobodhan Singh with lathi and torch, Hira Lal Yadav and Kalyan Yadav with Lathi. Munna Singh shouted and warned his father to run away as people are coming to kill him, but by that time accused persons have already reached near Shyam Bihari Singh and as soon as Shyam Bihari stood up Lallu Yadav fired at him from his double barrel gun. Thereafter Bisendra Singh fired from his gun. Munna Singh started to run away and he was asking for help. The accused persons thereafter set fire to the straw. Munna Singh told him that the occurrence has taken place as Shyam Bihari did not give his Rehat to Lallu Yadav in the day time when he came to ask for it. P.W. 2 in paragraph 6 has admitted the relationship of the witnesses with each other and with the deceased. In paragraph 2, 3 and 4 he has admitted the relationship of the accused persons with each other. P.W. 3 has said that he was also sleeping in the Khalihan in the night of the occurrence. He woke up on hearing the sound of gun firing and saw Munna Singh running towards south shouting that Bisendra and Lallu Yadav have killed his father. He only identified Lallu Yadav and Bisendra in the flame cf burning straw. So far other accused persons are concerned he has deposed that when he went to village, their names were disclosed before him by P.W. 4. P.W. 3 has stated that Munna Singh P.W. 4 sent him to call Raghunath Singh. In the subsequent morning he went to call Raghunath Singh and after 5-6 days he came alongwith him P.W. 4 is the informant and claimed to have seen the occurrence as he was sleeping along with his father in the khalihan. P.W. 3 has stated that Munna Singh P.W. 4 sent him to call Raghunath Singh. In the subsequent morning he went to call Raghunath Singh and after 5-6 days he came alongwith him P.W. 4 is the informant and claimed to have seen the occurrence as he was sleeping along with his father in the khalihan. He has stated that he woke up hearing the barking of dogs and flashed his torch. He saw 8-10 persons coming from southern direction when they reached in khalihan he identified 9 persons. He went near them and Jeobodhan Singh asked his men that Munna should not escape. P.W. 4 woke up and warned his father Shyam Bihari that people had come to kill him and his father. His father was trying to stand up, but at that time only Lallu Yadav fired at him from his D.B.B.L. gun and thereafter Bisendra also fired at him. P.W. 4 ran away shouting towards the village that his father has been killed. After going for some distance he saw that khalihan was burning. He reached at his village and gave information to the villagers, but no one came in the night at the place of occurrence out of fear. He sent P.W. 3 for calling Raghunath Singh and on the next day in the morning when he again went to khalihan then he found the burnt dead body of his father. Next day at 11 A.M. Officer in-charge came at khalihan and his faro beyan was recorded. He has admitted that the police out post is there at village Murar which is adjacent to village Chaugain. Village Chaugai is at a distance of 1/2 K.M. from his village. At Chaugain Chowkidar, Dafadar resides and the Gram Panchayal is also there. No information was given by him either to Chowkidar, Dafadar or the Gram Panchayal P.W. 4 has also stated that the place where his father was sleeping, bundles of paddy straw were kept from eastern and southern direction. In the next morning police Armed party came from Murar out post at place of occurrence alongwith Jamadar. Jamadar came there as some one informed him about the occurrence. P.W. 4 had stated before the police that since it was night no information could be given at the police station. From a distance he saw that straw was burning. In the next morning police Armed party came from Murar out post at place of occurrence alongwith Jamadar. Jamadar came there as some one informed him about the occurrence. P.W. 4 had stated before the police that since it was night no information could be given at the police station. From a distance he saw that straw was burning. The accused persons had come from the southern direction and after commission of offence they fled away towards the same direction. P.W. 4 had denied the suggestion that his father was killed by some other persons, no one has seen the occurrence, but the name of accused persons were disclosed before the police on account of village enmity. 8. P.W. 6 has stated in his evidence that on 21.12.1980 he inspected the place of occurrence, which was shown by P.W. 4 Munna Singh. The place of occurrence is the khalihan located at a distance of 1/2 miles from the village Chaugai. He found bundles of thrashed paddy straw kept at the place of occurrence. Bundles of harvested paddy crops were kept towards north of the pipal tree and towards east comer of khalihan. 100 bundles of straw were kept towards east and south of the place where the deceased and P.W. 4 were said to be sleeping. The bundles were kept there to protect the deceased from the blowing chilly wind. He seized empty 12 bore cartridges and blood stained earth and blood stained burnt clothes as well as burnt paddy and ashes from the place of occurrence. Post mortem was conducted in this case by doctor Hoda but he was not examined. P.W. 5 in his deposition has stated that Dr. Hoda had gone Middle east. P.W. 5 has proved the entry in the post mortem register. The post mortem report has not been formally brought on record before the trial court, but at the behest of the court when the register of post mortem was called, post mortem was found kept in the register. From the post mortem report it transpired that there was only one firearm injury on the person of the deceased though all witnesses claiming to be eye witnesses have specifically stated that the deceased was fired by Lallu Yadav and Bisendra Yadav. 9. Mr. Kanhaiya Singh counsel appearing for the appellants has stated that from the evidence, presence of PWs. From the post mortem report it transpired that there was only one firearm injury on the person of the deceased though all witnesses claiming to be eye witnesses have specifically stated that the deceased was fired by Lallu Yadav and Bisendra Yadav. 9. Mr. Kanhaiya Singh counsel appearing for the appellants has stated that from the evidence, presence of PWs. 2, 3 and 4 or any witness at the place of occurrence, at the time of occurrence, seems to be doubtful. In his fard beyan P.W. 4 has stated that he ran away from the place of occurrence as soon as he saw that his father is being shot by Lallu Yadav and Bisendra Yadav. While running towards village, he was shouting to wake up PWs. 2 and 3 who were sleeping in the adjacent khalihan. On reaching village he woke up Shyam Bihari Singh and informed him about the occurrence, but this part of the story as stated in the fard beyan has completely been changed in his evidence during trial. Further in his fard beyan he has stated that when he reached the village he came to the house of Hridaya Nand Singh and informed him about the occurrence. Hridayanand Singh thereafter woke up the villagers and all of them in the night itself had gone to khalihan. This part of faro beyan has been omitted in the evidence in the court, without giving any proper explanation for omitting this part of the story. As per the fard beyan, Hridayanand Singh was the first person who came to know about the occurrence in the village. Such important witness has not been examined by the prosecution, whose examination was essential to test the truth of the prosecution story. Further it has been stated that the behaviour of P.W. 4, being the son of the deceased is strange and conspicuous, if at all he was an eye witness of the occurrence. He saw that his father has been shot by the accused persons, he left the place, went to the village and remained there til! arrival of police, without giving any information either to the Chowkidar, Dafadar or the Gram Panchayat. He saw that his father has been shot by the accused persons, he left the place, went to the village and remained there til! arrival of police, without giving any information either to the Chowkidar, Dafadar or the Gram Panchayat. It has come in the evidence of P.W. 4 that the police out post is at a distance of 1/2 K.M. where the Chawkidar remains present and Gram Panchayat is also there, but no one was sent to give information at the out post.P.W. 3 was sent to give information to Raghunath Singh and he stayed there for 5-6 days which is unbelievable. P.W. 4 did not visit the khalihan i.e. the place of occurrence in the morning till the police arrived at 11 A.M. P.W. 4 has admitted that the armed force from village Chaugai police out post came at the place of occurrence at 9 A.M. RW. 4 reached at the place of occurrence at 11 A.M. when officer-in-charge came from Dumraon Police Station which is located at a distance of 25 K.M. The absence of P.W. 4 for such a long time from the place of occurrence, specially when he claims to be the eye witness of the occurrence, makes his claim to be an eye witness doubtful. He remained absent from the place of occurrence for the whole night till 11 A.M. In the morning not a single person from his family visited the place of occurrence. It indicates that no one was present at the place of occurrence when the occurrence took place. On some rumor or some information as stated by P.W. 6, in the morning Chawkidar came at Dumraon police station at 9.30 A.M. and he gave information to Officer-in-charge about the murder and on that basis Sanha entry was made. The Officer-in-charge proceeded for the place of occurrence and reached there at 11.45 A.M. The Officer-in-charge after his reaching at place of occurrence asked P.W. 6 to come and thereafter he reached at the place of occurrence at 4 O clock. The evidence of P.W. 6 only indicates that the occurrence took place in the night. No one has witnessed the occurrence. In the morning on some rumor the Chawkidar of Chaugai out post went to give information at Dumraon Police Station. The evidence of P.W. 6 only indicates that the occurrence took place in the night. No one has witnessed the occurrence. In the morning on some rumor the Chawkidar of Chaugai out post went to give information at Dumraon Police Station. The Officer-in-charge came at the place of occurrence at 11 A.M. and thereafter the informant was called and his faro beyan was recorded by the Officer-in-charge of Dumraon police station. Informant himself has admitted that he came at the place of occurrence on the next day after arrival of the Officer-in-charge of the police station. The identification of the accused persons by P.W. 2, 3 and 4 in this circumstance cannot be believed, considering the evidence of P.W. 6. These witnesses have stated that they identified the accused persons in the flash of torch light of P.W. 4. P.W. 6 has -stated that no such torch was produced before him by any one during investigation. It is the evidence of P.W. 4 that he had seen the accused persons from a distance as such there was no possibility that he could have identified the accused persons in the light of the flame of the fire. PWs. 2 and 3 have stated thai they identified the accused persons from their own khalihan. They did not go near the deceased. PWs. 2 and 3 have state that they left the place of occurrence immediately thereafter. P.W. 3 went away to calling Raghunath Singh and returned afte: 5-6 days. His statement was also recorded after 5-6 days of the occurrence. P.W. 2 has also not stated that in the morning he again went at the place of occurrence. This behaviour on the part of the witnesses makes their presence at the place of occurrence, in the night when the occurrence took place, becomes suspicious. So far the charge framed under section 435/149 is concerned, there is no evidence on record. The witnesses have not stated that they saw any one among the accused setting fire to the khalihan in which the paddy crops and other valuables of the informant was burnt. 10. PWs. 2, 3 and 4 have stated that the deceased was shot at by Lallu Yadav with his double barrel gun and thereafter he was shot by Bisendra by his single barrel gun. Injury found in the post mortem report (Ext. 10. PWs. 2, 3 and 4 have stated that the deceased was shot at by Lallu Yadav with his double barrel gun and thereafter he was shot by Bisendra by his single barrel gun. Injury found in the post mortem report (Ext. 2) indicates that the doctor conducting post mortem examination on the dead body of the deceased found following ante mortem injury: (i) The whole body was swollen and all over completely burnt the tongue was protruded. Blood was found coming out from the mouth and nostrils. At places in the legs skin was found burnt. Skin was also found burnt on the other part of the dead body, ear, charred and blackened. (ii) One circular wound 1" in diameter, with burnt margins over the left side of chest over 3rd intercoastal seen 1" away from sternum with fracture of the ribs below. (iii) One oval wound 1" x 1/2" on the left side of back near the lower boarder of left scapula with fracture of rib. Two pieces of cork and two bullets were recovered from the thorosic cavity. In the opinion of the doctor injury nos. 2 and 3 above were caused by firearm and according to him the death was due to shock and haemorrhage. Injury no. 2 caused by firearm after which the body had been burnt. The time elapsed since death and post mortem examination is 20 to 48 hours. 11. Considering the evidence on record, the post mortem report, behaviour of the witnesses which is admitted in their own deposition, the relationship of the witnesses with each other and with the deceased as well as in the background of admitted enmity makes the claim of the witnesses doubtful that they have seen the occurrence. The evidence which is on record is not sufficient for conviction of the accused in a serious case like 302/149 and 435/149 of the Indian Penal Code. So far the charge under sections 435/149 of the Indian Penal Code is concerned, there is no evidence and the conviction of the appellants is against the evidence on record. The judgment of conviction is fit for interference. Accordingly the conviction of the appellants Lalu Yadav and Bisendra Yadav under Section 302/34 of the Indian Penal Code as well as under sections 147, 148 and 435/ 149 are set aside. The judgment of conviction is fit for interference. Accordingly the conviction of the appellants Lalu Yadav and Bisendra Yadav under Section 302/34 of the Indian Penal Code as well as under sections 147, 148 and 435/ 149 are set aside. Conviction of other appellants under section 435/149 and 147 of the Indian Penal Code is set aside. Conviction of Lallu Yadav and Bisendra Yadav under sections 302/34 of the Indian Penal Code and conviction of these two appel lants alongwith Lallu under section 144 are set aside. The appellants are on bail which was granted to them during the pendency of their appeal before the Supreme Court they are directed to be released from the liability of their bail bonds. Accordingly all the four appeals are allowed. M.L.Visa, J. 12 I agree.