Judgment Rekha Kumari, J. 1. Both the appeals are directed against the judgment dated 16th January, 2002 passed by Sri Mazhar Imam, 2nd Additional Sessions Judge, West Champaran at Bettiah in Sessions Trial No. 323 of 1997/5 of 2000 by which he has convicted appellant Bhola Yadav under Section 302 of the Indian Penal Code and section 27 of the Arms Act and other appellants under section 302/34 of the Indian Penal Code and sentenced all the appellants to undergo imprisonment for life and has further sentenced appellant Bhola Yadav to undergo rigorous imprisoment for five years under section 27 of the Arms Act with the direction that the sentences of Bhola Yadav would run concurrently. 2. As both the appeals arose out of the same judgment, they were heard together and are being disposed of by this common judgment. 3. The prosecution case, as disclosed from the Fardbeyan of the informant Balpati Devi (PW 5), is that in the night between 18th and 19th March, 1997 she was sleeping at the door of the Osara (verandah) of her house. Her husband Mundrika Yadav was sleeping in the Palani in front of the door. After mid night, when she was awake, she saw appellant Bhola Yadav came armed with gun and shot at her husband. She ran towards her husband. Then appellant Bhola Yadav chased her with his gun and she fled with her sons and daughters. It is further alleged that appellants Mishri Yadav, Belash Yadav, Bhikhari Yadav and some unknown persons were with appellant Bhola Yadav and after receiving injury, her husband shouted addressing her that he was shot at, she raised alarm on which the appellants fled away. 4. The reason behind the occurrence is said to be that there was land dispute between appellant Bhola Yadav and one Brija Yadav in which the deceased was intervening. 5. On 19.3.1997 at 6.00 hours the Fardbeyan (Ext. 1) of the informant was recorded at the door of the deceased. On the basis of the Fardbeyan the case was registered. The police investigated the case and submitted charge-sheet against the appellants. 6. The appellants were charged under section 302/34 of the Indian Penal Code. Appellant Bhola Yadav was futher charged under section 302 of the Indian Penal Code and Section 27 of the Arms Act. They pleaded not guilty to the charge. The police investigated the case and submitted charge-sheet against the appellants. 6. The appellants were charged under section 302/34 of the Indian Penal Code. Appellant Bhola Yadav was futher charged under section 302 of the Indian Penal Code and Section 27 of the Arms Act. They pleaded not guilty to the charge. Their defence as gathered from the suggestions given to the P.Ws. is that the appellants are innocent. The murder was committed by some unknown persons and the informant falsely implicated the appellants out of enmity. 7. The prosecution examined in all seven witnesses in order to prove its case. Out of them P.W. 1 Ram Chandra Yadav, P.W. 2 Parsan Yadav are sons of the informant, P.W. 3 Rambha Kumari and P.W. 4 Uma Devi are the daughters of the informant, P.W. 5 Balpati Devi is the wife of the deceased, P.W. 6 is Dr. Purushottam Singh who had conducted the post mortem examination on the dead body of the deceased, P.W. 7 Binod Kumar Singh, S.l is the Investigating Officer. 8. The appellants have examined D.W. 1 Jokhu Prasad, Typist, a formal witness who has proved the complaint petition (Ext. A) filed by appellant Bhola Yadav against Gopal Yadav and others. 9. The learned trial court after considering the above evidence convicted and sentenced the appellants, as mentioned above. 10. Learned counsel appearing for the appellants submitted that there is no independent witness in this case. There was enmity between the deceased and the appellants. The informant and other witnesses did not identify the assailants and out of enmity falsely implicated the appellant Bhola Yadav and the other appellants who are his relatives. 11. In order to appreciate the argument of the learned counsel, I have gone through the entire evidence of the witnesses. 12. P.W. 6, the doctor has deposed that on 19.3.1997 he was posted as Civil Assistant Surgeon in M.J.K. Hospital, Bettiah and on that day he performed the post mortem examination on the dead body of deceased Mundrika Yadav and found the following ante mortem injuries:- (i) Lacerated wound 1/4" diameter circular on right side of the chest medial to right nipple. It was wound of entry. (ii) Lacerated wound 1/2" diameter circular at right side of back which was wound of exit. 13. He has further deposed that on dissection he found both the injuries communicative. Chest cavity was full of blood. It was wound of entry. (ii) Lacerated wound 1/2" diameter circular at right side of back which was wound of exit. 13. He has further deposed that on dissection he found both the injuries communicative. Chest cavity was full of blood. Right lung was pierced and badly lacerated. Right chamber of heart was punctured through right lung. Both chambers of heart empty. Stomach contained semi digested food stuff. 14. According to the doctor the injuries were caused by firearm and the time elapsed since death was within 24 hours from the time of post mortem examination. He has further opined that the injuries were sufficient in ordinary course of nature to cause death. 15. Thus from the evidence of the doctor, it is clear that the deceased died on account of gun shot injuries and that only one shot was fired. Though the doctor did not give the time of holding of post mortem examination, as the post mortem was held on 19.3.1997 and time elapsed since death was within 24 hours, it is also clear that the time elapsed since death found by the doctor corresponds with the time of the alleged occurrence. 16. The evidence of the I.O. (P.W. 7) shows that he was A.S.I., Mufassil Police Station, Bettiah and Sri B.K. Shahi was the Officer-in-charge of the said police station and he had gone to the place of occurrence alongwith Sri Shahi and in his presence the Officer-in-charge B.K. Shahi had recorded the Fardbeyan of the informant Balpati Devi and after preparing inquest report had handed over the investigation to him. His evidence further shows that on 19.3.1997 he inspected the place of occurrence at 8.15 A.M. and found the dead body of the deceased in front of the main door of the house of the deceased on a cot under a Palani and on the bed on cot he found blood in large quantity and there was hole in the wrapper of the deceased. 17. It is, therefore, also clear that the deceased was fired and had died in his Palani when he was sleeping on the cot. 18. The evidence of P. Ws. 1 and 2 is also clear that there was land dispute between their father and appellant Bhola Yadav. 17. It is, therefore, also clear that the deceased was fired and had died in his Palani when he was sleeping on the cot. 18. The evidence of P. Ws. 1 and 2 is also clear that there was land dispute between their father and appellant Bhola Yadav. P.W. 2 has further stated that the dispute was with respect to Gair Majarua land on which he had his Khalihan and the appellant was claiming it and had filed a case about 1-2 months prior to the occurrence. The appellants have also proved Exts. A, B, C and D. The complaint petition (Ext. A) shows that Bhola Yadav had filed a complaint case against the deceased and others relating to.an occurrence dated 20.11.1996. Ext. B shows that the cognizance was taken in that case. Ext. C shows that on account of land dispute the police of Bettiah Mufassil Police Station had recommended for drawing up a proceeding under section 107 Cr. PC. against Bhola Yadav as first party and two sons of the deceased as second party. Ext. D shows that the proceeding was dropped on 4.9.1997/11.9.1997. Therefore, it is clear that there was enmity between Bhola Yadav and the deceased. So there was reason for Bhola Yadav to commit this murder. 19. The main question, however, is whether the appellants were responsible for the death of the deceased. 20. P.W. 5 Balpati Devi, the informant, has stated that on the alleged night she was sleeping in the Osara which was at the door of her house. Her husband was sleeping under a Palani in front of the door on a cot. At mid night appellant Bhola Yadav came followed by appellants Mishri Yadav, Bilas Yadav and Bhikhari Yadav. There were some other persons also whom she could not identify. Appellant Bhola Yadav fired on her husband and her husband shouted addressing her and saying that Bhola Yadav shot at him. She rushed alongwith her sons. Appellant Bhola Yadav threatened to kill them and by that time her husband died. Then, information was sent to the police station and the police came and recorded her statement. 21. P.W. 1 Ram Chandra Yadav, the son of the informant, has deposed that on 19.3.1997 in the mid night he was sleeping in the Osara of his house. His brother Parsan Yadav was also with him. Then, information was sent to the police station and the police came and recorded her statement. 21. P.W. 1 Ram Chandra Yadav, the son of the informant, has deposed that on 19.3.1997 in the mid night he was sleeping in the Osara of his house. His brother Parsan Yadav was also with him. His two sisters and mother was also sleeping there. He woke up on the cries and wailing of his mother. His mother told that appellant Bhola Yadav killed his father. He followed the miscreants but they threatened to kill them. There were 6-7 miscreants and he identified the four appellants. His father had received gun shot injury. He found his father dead. 22. P.W. 2 has stated that on 19.3.1997 in the mid night he was sleeping in the Osara of his house. His brother Ram Chandra Yadav (P.W. 1) was also sleeping with him on cot and his mother, two sisters were sleeping by their side on cot. His father was sleeping in the Palani and that place was invisible to them. He woke up on the sound of firing and the cries of his mother. His mother told that appellant Bhola Yadav shot his father with gun. They chased the miscreants. They were 8-9 in number. They threatened them and hence they returned. He identified the appellants. He has further stated that his father had received gun shot injury on right chest and was smeared with blood. 23. P.W. 3 Rambha Kumari, daughter of the deceased, has stated that on the alleged night she was sleeping with her sister and mother. She woke up on the sound of firing and the cries of her mother. Her mother told that appellant Bhola Yadav had fled after shooting her father. They chased the assailants and identified the four appellants. She has stated that her father died in the meantime. 24. P.W. 4 Uma Devi, another daughter of the deceased, has also stated in the same way as P.W. 3. She has stated that she was sleeping with her sister and mother when in the mid night on the sound of firing and cries of her mother she woke up. Her mother told that appellant Bhola Yadav, Bilas Yadav, Mishri Yadav and Bhikhari Yadav shot at her father. She, her mother and her brothers chased the culprits. They were 8-9 in number and she identified the above appellants. Her mother told that appellant Bhola Yadav, Bilas Yadav, Mishri Yadav and Bhikhari Yadav shot at her father. She, her mother and her brothers chased the culprits. They were 8-9 in number and she identified the above appellants. Her evidence then is that when she went to her father, her father had died on account of firearm injury on his chest. 25. Thus, according to the evidence of these witnesses, appellant Bhola Yadav alongwith other appellants came in the fateful night and Bhola Yadav fired a shot causing injury on the chest of the deceased in the Palani where he was sleeping resulting in his death. 26. Among these witnesses P. Ws. 1 and 2 are the sons and P.Ws. 3 and 4 are the daughters of the deceased and the occurrence had taken place in front of their house. Therefore, they are natural witnesses. As regards P.W. 5, her evidence is that she was sleeping in the Osara. The evidence of P.W. 2 is that the Palani was at a distance of 5-6 steps from Osara and that the appellants were known to her from before. The evidence of P.W. 3 shows that the night was moonlit. Therefore, there was no difficulty for P.W. 5 or other witnesses to identity the appellants. 27. But though, according to the evidence of P.W. 3 Rambha Kumari, she was sleeping in the Osara and on the sound of firing and cries of her mother she woke up and she has further stated that she followed the culprits and identified Bhola Yadav, Bilas Yadav, Bhikhari Yadav and Mishri Yadav, she has been confronted with her previous statement before the I.O. and the I.O. has stated that she had stated before him that she was sleeping inside the house and on sound of firing and cries of her mother she came out and saw her father dancing like a top. She has further admitted that she had stated before the I.O. that she had seen no person fleeing south east. Therefore, in view of the above contradiction, it is difficult to believe that this witness had seen any of the appellants fleeing. Her evidence, however, is clear that her mother told her that appellant Bhola Yadav fled away after shooting her father Though, this evidence of the witness is a hearsay, it is relevant as res gestae forming part of the same transaction. 28. Her evidence, however, is clear that her mother told her that appellant Bhola Yadav fled away after shooting her father Though, this evidence of the witness is a hearsay, it is relevant as res gestae forming part of the same transaction. 28. Similarly, though P.W. 4 Uma Devi has stated that she was sleeping outside her house on Osara and on the sound of firing and the cries of her mother she woke up and her mother told her that Bhola Yadav, Bilas Yadav, Mishri Yadav and Bhikhari Yadav had fired at her father and she has further stated that she also chased the culprits and identified the appellants, the evidence of the I.O. is that the witness had stated before him that she was sleeping inside her house and she did not state that her mother told her that Bhola Yadav, Bilas Yadav, Mishri Yadav and Bhikhari Yadav shot at her father and that she also did not state that she had chased the culprits and identified and appellants. Therefore, from the evidence of this witness the complicity of any of the appellants is not proved. Her evidence only shows that her father was murdered on the alleged night by firing under the Palani where he was sleeping. 29. As regards P.W. 1, though he has also claimed that he had followed the culprits and identified the appellants, he has admitted that he had stated before the I.O. that he had seen the appellant Bhola Yadav fleeing towards south under the Peepaltree and that appellant fired and so he stopped. Therefore, from his evidence also it appears that actually he had identified appellant Bhola Yadav only while fleeing. 30. Regarding PW. 2, though he has also claimed to have chased the culprits and identified the appellants, his evidence also shows that as the culprits threatened them, they returned. P.W. 5 has also stated that after the firing she rushed with her sons to the deceased and Bhola Yadav threatened to kill them. The prosecution case in the first information report also is that Bhola Yadav chased them and they returned. Therefore, it is doubtful that this witness had chased the culprits and identified the appellants while fleeing. At best it can be said that, as in the case of P.W. 1, that he had identified the appellant Bhola Yadav. 31. The prosecution case in the first information report also is that Bhola Yadav chased them and they returned. Therefore, it is doubtful that this witness had chased the culprits and identified the appellants while fleeing. At best it can be said that, as in the case of P.W. 1, that he had identified the appellant Bhola Yadav. 31. The evidence of P.W. 5, however, is that appellant Bhola Yadav had fired at her husband and the appellant was accompanied by the other appellants. The Fardbeyan which was recorded very promptly in the morning at 6.00 hours, also corroborates this. The evidence of the I.O., of course, is that in her statement under section 161 Cr.P.C. the witness had stated that she woke up on sound of firing whereas in her evidence she has stated that she was keeping awake when the appellants came but from this discrepancy it cannot be said that the witness is not reliable. But, though, her evidence is consistent that she had identified all the appellants, as already discussed, there is no reliable evidence of any other witness that except Bhola Yadav, the other appellants had gone to the P.O. The evidence of P.Ws. 1, 2 and 3 also is that when they went near their father, her mother told that appellant Bhola Yadav shot their father. Except P.W. 4 no one has stated that she took the name of any other appellants. P.W. 4, of course, has stated that her mother had taken the names of all the appellants but I have already shown that this evidence is not reliable. The evidence of P.W. 1 also is that they had no previous enmity with other appellants. Therefore, a reasonable doubt is created as to whether actually the other appellants had taken part in the murder. The evidence of P.W. 5 also is that appellants Mishri Yadav, Bilas Yadav, Bhikhari Yadav are full brothers and the daughter of Bhola Yadav is married to the son of Mishri Yadav. Ext. A also shows that appellant Bhola Yadav had filed a complaint case on 3.1.1997 against the deceased in which appellant Bilas Yadav and BhiKnari Yadav were witnesses. Hence, it is quite probable that P.W. 5 did not actually identify the other persons who had accompanie Bhola Yadav and out of suspicion named them. 32. Ext. A also shows that appellant Bhola Yadav had filed a complaint case on 3.1.1997 against the deceased in which appellant Bilas Yadav and BhiKnari Yadav were witnesses. Hence, it is quite probable that P.W. 5 did not actually identify the other persons who had accompanie Bhola Yadav and out of suspicion named them. 32. Thus, on a close scrutiny of the evidence of the above witnesses, I find that the evidence of P.W. 5 is unimpeachable that appellant Bhola Yadav shot at her husband committing murder and the evidence of P.Ws. 1, 2 and 3 is consistent that immediately after firing when they went to their father, P.W. 5 told them that appellant Bhola Yadav had fired on the deceased. The evidence is also reliable that P.Ws. 1 and 2 identified the appellant Bhola Yadav while fleeing. However, so far as the other appellants, a reasonable doubt lurks in the mind as to whether they had accompanied Bhola Yadav. 33. Learned counsel for the appellants has submitted that in this case no independent witness has been examined and all the witnesses are members of the same family and inimically disposed towards appellant Bhola Yadav and hence the prosecution case cannot be said to have been proved. 34. The evidence of P.W. 5, of course, is that there are 10-20 houses by the side of their house and on the sound of firing 50-100 persons had come to the place of occurrence. But there is nothing to show that any of them had seen the occurrence or the appellants and so their non-examination does not affect the prosecution case. Then, though all the witnesses are interested, I have already shown that they are most competent, and natural witnesses. Again, though, there was enmity between the deceased and Bhola Yadav and hence the witnesses are also inimical against the appellant, that is no ground to reject their evidence. The only safeguard is that their evidence should be subjected to strict scrutiny. The discussion made above shows that the evidence of the witnesses have been closely scrutinised and it has been found that though other appellants may be held not guilty for the murder of the deceased, the evidence is clinching that appellant Bhola Yadav fired causing the murder of the deceased. 35. In the result the appeal of appellant Mishri Yadav, Bhikhari Yadav and Bilas Yadav is allowed. 35. In the result the appeal of appellant Mishri Yadav, Bhikhari Yadav and Bilas Yadav is allowed. The order of conviction and sentence passed against them by the learned trial court is set aside and they are acquitted. They are also discharged from the liabillity of their bail bonds. However, the order of conviction and sentence passed by the trial court against appellant Bhola Yadav under section 302 of the Indian Penal Code and Section 27 of the Arms Act is maintained and his appeal stands dismissed. Aftab Alam, J. 36 I agree.