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2006 DIGILAW 1206 (PAT)

Jagdeo Yadav v. State Of Bihar

2006-12-08

DHARNIDHAR JHA, SHIVA KIRTI SINGH

body2006
Judgment Shiva Kirti Singh, J. 1. This appeal was preferred by six appellants against the judgment and order dated 4th January, 1986 passed by First Additional Sessions Judge, Gaya in Sessions Trial No. 102/1977/25/1985 whereby appellant No. 1 was convicted under Sec. 302 Indian Penal Code, 1860 and sec. 27 of the Arms Act and sentenced to Rigorous Imprisonment for life and five years respectively. All other appellants were convicted u/s. 302 read with sec. 149 of the Indian Penal Code, 1860 and sentenced to Rigorous Imprisonment for life. Appellants, Jagdeo Yadav, Nathun Yadav and Brahamdeo Yadav were also convicted u/s. 148 Indian Penal Code, 1860 and sentenced to R.I. for three years and the remaining appellants were convicted u/s. 147 Indian Penal Code, 1860 , sentenced to R.I. for two years. The sentences were ordered to run concurrently. 2. This appeal was heard and allowed by judgment and order dated 18th September, 1998 passed by a Division Bench of this Court and all the appellants worn acquitted of all the charges by giving them benefit of doubt. One Akhilesh Sharma, son of one of the deceased victims, late Raj Ballabh Singh maintained Cr.Appeal No. 1379/1999 in the Supreme Court of India against the judgment and order passed in this appeal on 18th September, 1998. The Supreme Court by judgment and order dated 17.11.2005 recorded that accused, Kailash Yadav and Nathun Yadav had expired during the pendency of the appeal and therefore the appeal stood abated against them. With respect to remaining four convicted accused, by a brief order the judgment and order dated 18th September, 1998 passed by a Division Bench of this Court was set aside on the brief ground that trial court had recorded findings after threadbare discussion including five eyewitnesses whereas the High Court had noticed only the submission of both the sides to come to the final decision without assigning any reason and discussion on the evidence of the parties. Hence this appeal was restored for fresh hearing. 3. In view of the order of abetment in respect of appellant No. 2, Kailash Yadav and also appellant No. 4, Nathun Yadav the appeal has been heard only in respect of remaining four appellants. Before considering the evidence of witnesses and submissions of parties it is useful to notice in brief the prosecution case. 3. In view of the order of abetment in respect of appellant No. 2, Kailash Yadav and also appellant No. 4, Nathun Yadav the appeal has been heard only in respect of remaining four appellants. Before considering the evidence of witnesses and submissions of parties it is useful to notice in brief the prosecution case. As per fardbeyan of Jagdeo Singh (PW-13), killing of two victims took place on 8.12.1974 at about 9:00 a.m. at the open land (Sahen) near the house of accused, Jagdeo Yadav in village, Bajitpur, PS, Ghosi in the then district of Gaya. The Fardbeyan was recorded in village, Bajitpur on 8.12.1974 in the night at about 11:00 p.m. by Inspector of Police, Krishnadeo Mallick, ( PW-14). As per the Fardbeyan, in the previous night (7.12.1974) at about 6:00-7:00 p.m., Raja Ram Singh (PW-6) and Sita Ram Barhi (PW-7) were coming together to the Village from Bazar and when they reached the field of Ram Saran Yadav (One of the deceased), both were mistaken to be thieves of crops lying harvested in the field and hence hue and cry of thieves was raised, people from nearby places came running and Raja Ram Singh received thrashing with slaps and fists. In that assault upon Raja Ram Singh, the elder brother of Ram Saran Yadav, Ganga Bishun Yadav also participated. In the next morning of the occurrence (8.12.1974) Ganga Bishun Yadav, a workman of Sarvanand Singh came to Darvaza of Sarvanand Singh for doing the work but he was assaulted by Ramadhar Singh and Vijay Singh on account of previous evening occurrence. Some villagers intervened to separate them and Ganga Bishun Yadav returned. Some time thereafter villager, Jagdeo Yadav (Appellant No. 1) went on his roof with gun and began to abuse the Bhumihaars of Bajitpur. Thereafter at about 9:00 a.m., the informants brother, Raj Ballabh Singh (another deceased) who had come back from village, Gamharpur went to the Baithka of Jagdeo Yadav and forbade him from hurling abuses. Jagdeo Yadav began to abuse Raj Ballabh Singh also leading to exchange of hot words and Jagdeo Yadav fired his gun at Raj Ballabh Singh but the shot instead him hit Ram Saran Yadav, a Bataidar of the informant who was pleading with Raj Ballabh Singh to go away. Ram Saran fell down outside the Baithka. Jagdeo Yadav began to abuse Raj Ballabh Singh also leading to exchange of hot words and Jagdeo Yadav fired his gun at Raj Ballabh Singh but the shot instead him hit Ram Saran Yadav, a Bataidar of the informant who was pleading with Raj Ballabh Singh to go away. Ram Saran fell down outside the Baithka. Raj Ballabh Singh wanted to pick up Ram Saran but the other accused persons, all co-villagers, namely, Basanti Yadav, Kailash Yadav, Nathun Yadav, Dudheshwar Yadav and Brahamdeo Yadav who were armed with lathi, gadasa etc caught Raj Ballabh Singh from behind and threw him on the ground. Jagdeo Yadav ordered to kill him and thereupon the other accused persons assaulted Raj Ballabh Singh seriously with lathi, gadasa due to which he became unconscious. Accused persons dragged him to a room in the Baithka. Ram Saran Yadav who was also unconscious was also dragged to a room. In the evening the informant came to know that both Ram Saran and Raj Ballabh have died. The occurrence was witnessed by Rajeshwar Singh (PW-1), Ram Janam Singh (PW-4), Basdeo Singh, Jamuna Singh (PW-9), Ram Kishun Singh and several other persons of village, Bajitpur. On the basis of the Fardbeyan (Exhibit-1), Formal FIR(Exhibit-2) was lodged on 9.12.1974 at 4:00 a.m. leading to Ghosi PS Case No. 7 dated 9.12.1974. 4. The defence of the accused persons is that in the night between 7th and 8th of December, 1974 at about 3:00 or 4:00 a.m. when appellant, Jagdeo Singh (Jagdeo Yadav) was sleeping in a room of his Dalan or Baithka, he heard some sounds suggesting that dacoits were searching for his gun in another room. He got up and saw 13-14 persons standing in front of his Dalan and a man who came out with a wooden box from room. Jagdeo raised hulla in which his neighbour, Ram Saran Yadav (one of the deceased) came running and wanted to catch the dacoit going with the box but the dacoit fired a shot causing injury to Ram Saran Yadav who fell down. Several other villagers including Jagdeos uncle Nathun Yadav, his son, Binda Sharan, Kailash Yadav, Brahamdeo Yadav, Indradeo Yadav, Basdeo Yadav, Jageshwar Yadav, Karu Yadav, Charitra Yadav arrived with lathi, gadasa and spade etc. The dacoits fled away towards west-north but the dacoit with the box was surrounded and assaulted by the villagers. Several other villagers including Jagdeos uncle Nathun Yadav, his son, Binda Sharan, Kailash Yadav, Brahamdeo Yadav, Indradeo Yadav, Basdeo Yadav, Jageshwar Yadav, Karu Yadav, Charitra Yadav arrived with lathi, gadasa and spade etc. The dacoits fled away towards west-north but the dacoit with the box was surrounded and assaulted by the villagers. Box and his gun fell down but one of the dacoits managed to take away the gun. Due to assault the dacoit died and he was identified as Raj Ballabh Singh of the village. The villagers identified Chandeshwar Singh, Jagdeo Singh, Sukku Singh, Sia Ram Singh, Bansi Singh, Baso Singh, Raja Ram Singh, Kamlesh Singh, Rajeshwar Singh of village Bajitpur and Kameshwar Singh of another village among the dacoits. Allegedly, the dacoits made attempt to rescue Raj Ballabh Singh but because of arrival of a large number of villagers the dacoits could not succeed. The dead body of Raj Ballabh Singh, the dacoit and of Ram Saran Yadav were kept in two different rooms of Dalan of Jagdeo for keeping them secured. This version of the defence is apparent from Fardbeyan of Jagdeo Yadav recorded at his Dalan on 8.12.1974 at 16:00-15:00 hours by Sub Inspector of Police, Chand Govind Singh, (DW-1) which has been marked as Exhibit-A. Thus the case of the defence is that Raj Ballabh Singh (deceased) was one of the dacoits who killed deceased, Ram Saran Yadav and the villagers apprehended and assaulted him due to which he died. According to defence the present case was instituted much later as an after thought to counter the case lodged by accused, Jagdev as soon as Sub-Inspector of Police arrived in the village at 4:15 p.m. 5. The prosecution in order to prove the charges examined 14 witnesses including PW-14, Inspector of Police, Krishnadeo Mallick. Although, the doctor who conducted postmortem examination of the two deceased could not be examined but the postmortem reports have been marked as Exhibit-4 and 4/1 and the inquest reports are Exhibit-3 and 3/1. The defence has also examined four witnesses including Sub Inspector, Chand Govind Singh (DW-1) and Dafadar, Ram Lakhan Yadav (DW-3) who has proved Fardbeyan of accused, Jagdeo which has been marked as Exhibit-A. 6. The defence has also examined four witnesses including Sub Inspector, Chand Govind Singh (DW-1) and Dafadar, Ram Lakhan Yadav (DW-3) who has proved Fardbeyan of accused, Jagdeo which has been marked as Exhibit-A. 6. PW-1, Rajeshwar Singh is named in the FIR and has claimed to be eyewitness of not only the main occurrence of killing but also of the earlier two occurrences of the evening of 7.12.1974 in the field of Ram Saran Yadav and morning of 8.12.1974 near the Baithka of Sarvanand Sharma which have been mentioned in the Fardbeyan and are alleged to be the genesis leading to the main occurrence of killing of Ram Saran Yadav by mistake and Raj Bjallabh Singh in furtherance of common intention. He has deposed that at the field of Ram Saran Yadav, where he went on hulla he saw Ganga Bishun, brother of deceased, Ram Saran Yadav menacingly gesturing with gadasa and the occurrence there was reported to him by Raja Ram Singh (PW-6) who disclosed that Ganga Bishun has assaulted him by fists and slaps. With respect to main occurrence he has stated that after 8:00-8:30 a.m. when he had gone to irrigate his potato field, accused, Jagdeo Yadav with a gun in hand began to abuse all the members of Bhumihaar caste generally and at that time he was alone on his roof. He heard the sound of Raj Ballabh Singh and went near the Sehan of Jagdeo Yadav. He claims to have seen Jagdeo Yadav firing at Raj Ballabh but the shot hit Ram Saran and thereafter the other accused persons came in the Sehan, Nathun Yadav and Brahamdeo Yadav had gadasa and others were armed with lathis. After Raj Ballabh was thrown on the ground Nathun assaulted with gadasa on head. Brahamdeo Yadav assaulted with gadasa on the side of the face and other accused assaulted with lathi. The accused persons dragged Ram Saran and Raj Ballabh to their Dalan. According to him, Ram Janam Singh (PW-4) and Indradeep Singh proceeded towards police station for lodging information of the occurrence but they came back because of fear as Yadavas from nearby places had started arriving. He has admitted that he is an accused in the counter case. He has claimed to have seen the occurrence from a distance while standing in a lane by the side of Sehan of Jagdeo Yadav. He has admitted that he is an accused in the counter case. He has claimed to have seen the occurrence from a distance while standing in a lane by the side of Sehan of Jagdeo Yadav. In further cross-examination he has claimed to have heard sound of firing at about 7:30 p.m on 7.12.1974 on account of incident at the field of Ram Saran. In respect of main occurrence on 8.12.1974 he has claimed that brick-batting took place after the firing and also earlier to firing when he was irrigating his potato crop. When seen in the light of cross-examination of the I.O. (PW-14) it appears that before the police he had claimed that brick-batting took place only once but in court he has admitted incident of brick-batting prior to firing also. 7. PW-1 has admitted in cross-examination the topography of the village in which the houses of Yadavas appear to be situated on one side of the village and houses of Bhumihaars on the other. It further appears that except PW-3, a barker of village, Gamharpur and PW-7, Sita Ram Mistri, a labourer, all the prosecution witnesses except the police official, PW-14, are members of Bhumihaar caste and except PW-5 of village, Bajitpur. All the defence witnesses except police official, DW-1, are members of Yadava caste. However, DW-3 is a Dafadar and a formal witness belonging to another village and DW-4 is also from a neighbouring village, Gamharpur. 8. PW-1 has admitted in cross-examination that after the main occurrence of firing one Ram Naresh Singh Mukhiya, (PW-5), a Bhumihaar had come to the place of occurrence and at that time PW-1 was at his Baithka. Ram Naresh Singh made enquiries from all the main persons present at that time with regard to occurrence. He has then asserted that Ram Naresh Singh talked only with Chandradeep Singh. Then he has asserted that Ram Naresh Singh talked to Jagdeo Yadav also but PW-1 had not gone with Ram Naresh Singh Mukhiya to the place of occurrence. Ram Naresh Singh made efforts to get the two injured rescued. He has further stated in cross-examination that after the main occurrence in which Ram Saran received fire-shot, he had seen three persons of the village along with 15-16 outsiders coming to Dalan of Jagdeo Yadav. Ram Naresh Singh made efforts to get the two injured rescued. He has further stated in cross-examination that after the main occurrence in which Ram Saran received fire-shot, he had seen three persons of the village along with 15-16 outsiders coming to Dalan of Jagdeo Yadav. He could not identify the outsiders but they were all variously armed and were shouting that Raj Ballabh has been apprehended and he should be killed. He had further stated that since Raj Ballabh has been taken to a room therefore he could not say whether Raj Ballabh was further assaulted or not. He has further admitted that on the date of occurrence at about 4:00 p.m. police had come in the village and went to Baithka of Jagdeo Yadav. PW-1 did not attempt to go to the police. He has denied the suggestion that the allegation of some incident with respect to theft of crops on 7.12.1974 and the alleged assault of Ganga Bishan on 8.12.1974 at Dalan of Sarvanand is a false and imaginary story. He has also denied that he and some others had gone to commit dacoity and that Ram Saran was not a man of Raj Ballabh and Ram Saran had not gone to plead with Raj Ballabh or that the entire case was concocted to escape from the charge of dacoity. 9. PW-2 has also claimed to be eyewitness of the main occurrence of firing and killing etc on 8.12.1974. He has also claimed to have gone to the field of Ram Saran at about 7:00 p.m. of 7.12.1974 after hearing hulla. There he learnt from Ram Saran that he had been assaulted by Raja Ram Singh (PW-6) and Sita Ram Barahi(Mistri), (PW-7). He has not claimed to have learnt there regarding assault on Raja Ram Singh (PW-6) nor he has claimed to have seen Ganga Bishun, brother of Ram Saran in the field. He has also claimed to have heard regarding the early morning occurrence of 7:00 a.m. on 8.12.1974 from one Shatrughan Singh. 10. He has not claimed to have learnt there regarding assault on Raja Ram Singh (PW-6) nor he has claimed to have seen Ganga Bishun, brother of Ram Saran in the field. He has also claimed to have heard regarding the early morning occurrence of 7:00 a.m. on 8.12.1974 from one Shatrughan Singh. 10. According to PW-2, when exchange of hot words began between accused Jagdev Yadav and Raj Ballabh Singh, Jagdeo Yadav came down from the roof to his Sehan and Ram Saran Yadav was also by the side of Jagdeo Yadav and Raj Ballabh Singh, trying to persuade Jagdeo Yadav to go away and at that time Jagdeo Yadav came very close and fired a shot which hit Ram Saran Yadav in the chest and he immediately fell down. Thereafter, Jagdeo Yadav ordered other five accused to kill Raj Ballabh Singh. Brahamdeo and Nathun assaulted with gadasa and others by lathi. Raj Ballabh Yadav fell down. Accused persons dragged Raj Ballabh Yadav and Ram Saran to room in the Dalan of Jagdeo Yadav. He claims to have learnt later that both the injured died. He claims to have seen the occurrence from near the corner of Dwarika Singhs house where PW-4, PW-9, PW-10, Chandradeep Singh and some others were also present. He has admitted in cross-examination that long back father of accused Jagdeo Yadav had in a Civil case, deposed against him. He has also admitted that adjacent south to Dalan of Jagdeo Yadav there is vacant land of Ram Saran Yadav and to the south of that land is house of Ram Saran Yadav. Khalihan of Ram Saran was also situated south-west of Dalan of Jagdeo Yadav. According to PW-2 there was no tension in the village between the Bhumihaars and Yadavas on account of occurrence at the field of Ram Saran in the evening of 7.12.1974 but tension was caused because of occurrence of assault on Ganga Bishun in the morning of 8.12.1974. According to him brick-batting took place after the incident of murder. Although he has claimed that the other accused persons assaulted Raj Ballabh in the Sehan of Jagdeo Yadav on his orders, in cross-examination in paragraph-18 he stated that when Raj Ballabh was being assaulted at that time there were 5-7 persons on the varandah of Jagdeo Yadavs Dalan and among them were the accused, Brahamdeo, Kailash, Basanti, Dudheshwar and Nathun. Although he has claimed that the other accused persons assaulted Raj Ballabh in the Sehan of Jagdeo Yadav on his orders, in cross-examination in paragraph-18 he stated that when Raj Ballabh was being assaulted at that time there were 5-7 persons on the varandah of Jagdeo Yadavs Dalan and among them were the accused, Brahamdeo, Kailash, Basanti, Dudheshwar and Nathun. These persons carried Raj Ballabh after lifting him. He has also denied to have seen any group of persons coming to Dalan of Jagdeo Yadav after the occurrence of murder. 11. On examining his evidence with reference to that of the I.O., PW-14 it is noticed that in his statement before the police he had not attributed accused Dudheshwar with assault by lathi upon Raj Ballabh. He has also asserted that after the occurrence two persons proceeded to the police station but they came back after reaching the field of the village because they were attacked. He has admitted that one, Chandradeep Singh, accused Jagdeo Singh and Ram Janam Singh (PW-4) had disclosed about the occurrence to Ram Naresh Singh Mukhiya. 12. PW-3, Harikishun Thakur is a resident of another village, Gamharpur who has been examined by the prosecution to support its claim that Raj Ballabh Singh, deceased was one of the Punches in a dispute between Harikishun Thakur and his brother and in that connection he had gone to Gamharpur at 6:00 a.m. of 8.12.1974 and had returned from there after 8:00 a.m. and thereafter he was killed in the alleged occurrence. PW-3 has claimed that the other Punches are also dead except Dev Sharan Mahto (DW-4) who is Yadav by caste. He has also admitted that Bhumihaars of Bajitpur are his clients in relation to his work as a barber. 13. PW-4, Ram Janam Singh has also claimed to have witnessed the two minor occurrences relating to the alleged genesis and also the main occurrence of killing of Ram Saran Yadav and Raj Ballabh Singh. He has claimed to have gone to the field of Ram Saran Yadav on hulla and to have seen scuffle between Ram Saran Yadav and Raja Ram. According to him on 8.12.1974 at about 6:00-6:15 a.m. Ganga Bishun Yadav was assaulted by some boys when he had gone to work at the house of Sarvanand Sharma. He has deposed on the lines of PW-2 in respect of occurrence of killing. According to him on 8.12.1974 at about 6:00-6:15 a.m. Ganga Bishun Yadav was assaulted by some boys when he had gone to work at the house of Sarvanand Sharma. He has deposed on the lines of PW-2 in respect of occurrence of killing. According to him when Ram Saran Yadav received accidental shot of gun fired by Jagdeo Yadav and fell down in the Sehan then Raj Ballabh started picking up Ram Saran Yadav. Other accused persons caught Raj Ballabh Singh and on the orders of Jagdeo Yadav Raj Ballabh Singh was thrown down and assaulted by Nathun Yadav and Brahamdeo Yadav with gadasa. The latter gave gadasa blow on the head of Raj Ballabh Singh. Accused, Basanti and Kailash assaulted Raj Ballabh with lathi. Thereafter, Raj Ballabh was dragged to a room in the Dalan and Ram Saran was also picked up and taken into the room in the Dalan. This witness has claimed that he, Chandradeep Singh and Jagdeo Singh (informant, PW-13) proceeded for the police station but came back when they saw group of armed Yadavas coming from village, Lakhao. He has stated that witness, Chandradeep Singh was dead. He has admitted in cross-examination that in the night of 7th and 8th of December he had heard sound of firing and at that time he was in a field south-west to Dalan of Jagdeo Yadav. He has also denied to have seen the occurrence in which Ganga Bishun was assaulted. Contrary to PW-1 and 2 he has claimed that when Jagdev Yadav was hurling abuses from his roof he was with 2-4 other persons and he could not recognize whether those other persons were of the village or were outsiders. According to PW-1 at the time of hurling abuses, Jagdeo Yadav was alone on the roof. According to PW-2, at that time Jagdeo Yadav was on the roof with 5-7 persons out of whom he recognized five persons by name. PW-4 has admitted that he saw Ram Naresh Singh Mukhiya and police in the village but he has falsified PW-2 by claiming that did not say anything to Ram Naresh Singh regarding the occurrence. In the context of deposition of the I.O., PW-14 it appears that this witness had not stated before the police that he saw Jagdeo Yadav coming down from the roof and at the time of firing Jagdeo Yadav was downstairs. 14. In the context of deposition of the I.O., PW-14 it appears that this witness had not stated before the police that he saw Jagdeo Yadav coming down from the roof and at the time of firing Jagdeo Yadav was downstairs. 14. PW-5, Ram Naresh Sharma has deposed that on 8.12.1974 he was in his village, Haridaspur and one Phekar Mian of Mirapaith informed him that Jagdeo Yadav had confined Raj Ballabh Singh in the house after assaulting him. On getting this information at 2:00-2:30 p.m. he went to Bajitpur and met Chandradeep Singh, Jagdeo Singh(PW-13), Ram Janam Singh (PW-4). All the three informed him that Jagdeo Yadav had confined Raj Ballabh and Ram Saran and that he should get them out. He then proceeded towards Darwaza of accused, Jagdeo Yadav but he was stopped by Jagdeo Yadav who was on his roof with a gun. Thereafter, Jagdeo Yadav left the gun and came down and told him that he had called one Moti Das Yadav and when he comes then Jagdeo Yadav will do as per his saying. Then he went back to the Darwaza of Chandradeep Singh and narrated whatever had been said by Jagdeo Yadav. In the meantime Chand Govind Yadav, Sub Inspector of Police (DW-1) arrived from the police station. He questioned Ram Naresh Sharma and they together went to Dalan of Jagdeo Yadav and there he saw Ram Saran Yadav lying dead in the middle room of Baithka of Jagdeo Yadav and also saw Raj Ballabh Singh lying dead in the corner room. The Sub Inspector of Police started his work and this witness came back and informed Chandradeep Singh that both Ram Saran and Raj Ballabh Singh were dead and thereafter he returned to his home. 15. According to PW-5 the Sub Inspector of Police came to Dalan of Chandradeep Singh and at that time Ram Janam, PW-4, Jagdeo Singh (informant PW-13) and others were present. He and Chandradeep Singh talked with the police and he could not recollect whether the informant, Jagdeo Singh stated anything to the police or not. Ram Janam Singh (PW-4) did not, say anything to the police. He and Chandradeep Singh talked with the police and he could not recollect whether the informant, Jagdeo Singh stated anything to the police or not. Ram Janam Singh (PW-4) did not, say anything to the police. He has denied the suggestion that he had collected his castemen from nearby villages and had gone to rescue the person caught in dacoity or that when he came to know of case lodged by Jagdeo Yadav then he brought Dy.S.P. and police at 11:00 p.m. and got a false case filed. In the context of evidence of the I.O. (PW-14) it is found that this witness had not stated before the police that Phekan Mian of Mirapaith had given him any information. 16. PW-6, Raja Ram Singh, who as per prosecution case was involved in the previous day occurrence at the field of Ram Saran Yadav has been tendered only for cross-examination and he has admitted that he is accused in the counter case. 17. PW-7, Sita Ram Mistri has deposed to support the case of the prosecution that on the previous day of the main occurrence he and Raja Ram Singh were coming back and in the way near the field of Ram Saran Yadav hulla of thief was raised and thereafter Raja Ram Singh and Ram Saran had a scuffle. On hulla people from village came and separated them. He has not mentioned the presence of Ganga Bishun, brother of Ram Saran during the aforesaid occurrence at the field of Ram Saran Yadav and has admitted that he works for Bhumihars of Kora village. Like PW-4 he has also admitted that in the night, he had heard gun firing in the village. 18. PW-8, Sarvanand Sharma, PW-9, Jamuna Singh and PW-10 Raj Narain Singh had been tendered only for cross-examination. 19. PW-11, Arjun Kumar Singh is not named in the FIR as a witness. He has introduced a new story that on the previous day of the occurrence in the evening at about 7:00 he was at his house and heard hulla. When he proceeded towards field of Ram Saran Yadav then he heard sound of gun-fire. On the field of Ram Saran he saw Raja Ram Singh, Sita Ram Barhai, Ram Saran Yadav and Ganga Bishun. Ganga Bishun was waving gadasa. Other persons of the village were also there. When he proceeded towards field of Ram Saran Yadav then he heard sound of gun-fire. On the field of Ram Saran he saw Raja Ram Singh, Sita Ram Barhai, Ram Saran Yadav and Ganga Bishun. Ganga Bishun was waving gadasa. Other persons of the village were also there. He was informed by Raja Ram Singh that Ram Sharan had raised hulla of theft and alleged that the crop was being lifted. He was informed by Ram Saran Yadav that Raja Ram and Sita Ram were lifting his crop (patadhi) and when he forbade them Raja Ram assaulted him with fists and slaps. The Villagers separated the parties. 20. The next day at about 9:00 a.m., Raj Ballabh Singh went to Darwaza of Jagdeo Yadav to pacify him. Hot words were exchanged between them in the Sehan of Dalan of Jagdeo Yadav. Ram Saran Yadav was asking Raj Ballabh Singh to go away and at that time Jagdeo Yadav fired his gun and the shot hit Ram Saran Yadav who fell down. Raj Ballabh Singh wanted to flee away but the other five accused caught him and threw him down. On the order of Jagdeo Yadav, Nathun Yadav and Brahamdeo Yadav assaulted Raj Dallahh Singh with garasa and other three accused assaulted him with lathi. The accused persons took Raj Ballabh and Ram Saran to the room in Dalan. He has claimed that in the Sehan he saw only Raj Ballabh and Ram Saran who were at a distance of one yard from each other. Before Ram Saran received gun shot injury there were five persons on the Dalan of Jagdeo Yadav and 10-12 persons were on the roof. According to him brick-batting started when Ram Saran Yadav and Raj Ballabh Singh were taken inside the Dalan. According to him Mukhiyaji (Ram Naresh Singh, PW-5) had come to Darwaza of Chandradeep Singh at 4:00 p.m. and villagers assembled there. He did not see Jagdeo Yadav on the roof top. He claims to have seen 10-12 persons on the roof out of which he could identify seven. He has specifically replied in cross-examination that Jagdeo Yadav straightway shot at the chest and at that time Ram Saran was at a distance of just one cubit from the muzzle of the gun. 21. He claims to have seen 10-12 persons on the roof out of which he could identify seven. He has specifically replied in cross-examination that Jagdeo Yadav straightway shot at the chest and at that time Ram Saran was at a distance of just one cubit from the muzzle of the gun. 21. The manner of occurrence as given by this witness in respect of killing of Ram Saran makes the prosecution case of accidental or unintentional injury to Ram Saran by Jagdeo Yadav highly doubtful. 22. PW-12, Shyam Naresh Sharma has also been tendered only for cross-examination. He has admitted in cross-examination that PW-4, Ram Janam Singh is his cousin brother, Rajeshwar (PW-1) is his uncle by way of relationship among gotias and PW-10, Raj Narain is his own brother. 23. PW-13 , Jagdeo Singh is the informant in this case. He has not claimed to be an eyewitness of the occurrence in the evening of 7.12.1974 in the field of Ram Saran. He has claimed that on 8.12.1974 at 6:00 a.m. PW-3, Hari Kishun Thakur called his brother Raj Ballabh (deceased) to Village, Gamharpur for participating in a Punchayati. He claims to have witnessed the occurrence in the morning in front of the house of Sarvanand. According to him Ramadhar Sharma and Vijay Sharma assaulted Ganga Bishun, the villagers pacified them and Ganga Bishun went back to his house. Thereafter, Jagdeo Yadav went on the roof of his house and started abusing the Bhumihaars (Babhan). Between 8:00 and 9:00 a.m., Raj Ballabh came back from Gamharpur and left saying that he was going to Jagdeo Yadav to make him understand. When altercation started between Raj Ballabh and Jagdeo Yadav, the informant went to the corner of the house of Dwarika Singh and saw Jagdeo Yadav firing from downstairs. The shot hit Ram Saran who fell down. On the orders of Jagdeo Yadav to kill Raj Ballabh the other five accused threw Raj Ballabh down. Nathun Yadav and Brahamdeo Yadav assaulted Raj Ballabh with gadasa and other three assaulted him with lathi. Both the injured i.e. Raj Ballabh and Ram Saran were taken to a room. According to this witness Chandradeep Singh, Ram Janam Singh (PW-4) and he proceeded to the police station but saw a mob coming from Lakhao and returned back due to fear. Both the injured i.e. Raj Ballabh and Ram Saran were taken to a room. According to this witness Chandradeep Singh, Ram Janam Singh (PW-4) and he proceeded to the police station but saw a mob coming from Lakhao and returned back due to fear. He learnt regarding death of Raj Ballabh and Ram Saran at 4:00 p.m. and gave his statement to the Inspector of Police at 11:00 p.m. in the night when he had come to the village. He has explained that witnesses, Chandradeep Singh, Yadunandan Singh are dead and witnesses Girija Nandan Yadav, Ram Lakhan Prasad, Dev Sharan Yadav and Arjun Thakur are not ready to depose because they have been gained over by the accused persons. He has admitted that he had four brothers out of whom only one is surviving. He has denied suggestion to the effect that his deceased brothers, Sukku Singh, Raj Ballabh and Chandeshwar had criminal antecedents. He has also admitted that in the counter case he is accused with his brother, Chandeshwar and Sukku and that Chandeshwar Singh died 2-3 years after the occurrence. He has denied to have heard sound of firing from the side of Jagdeo Yadavs Dalan in the previous night of the alleged occurrence of killing. He has claimed that when he started witnessing the occurrence at that time Jagdeo Yadav had come down from the roof into the Sehan and he did not see anybody on the roof of Jagdeo Yadav at that time or till he remained near the place of occurrence. On a reference to statement of the I.O.(PW-14) it is found that informant had not stated before the police that when he reached near the corner (konathi) Jagdeo Yadav had come down from the roof and that he fired from downstairs. 24. According to him Raj Ballabh had received 10-20 blows of lathi besides two garasas blow. He has admitted that he could not see whether Raj Bailabh had become unconscious after the assault, a fact alleged in the fardbeyan. He has claimed that he could not remember whether this fact was mentioned in the fardbeyan or not. Contrary to FIR in which the specific arms were not attributed to the accused persons, he has claimed that he had disclosed which accused was armed with what weapon. According to him Raj Bailabh remained in the Sehan for 25-30 minutes after the assault had started. Contrary to FIR in which the specific arms were not attributed to the accused persons, he has claimed that he had disclosed which accused was armed with what weapon. According to him Raj Bailabh remained in the Sehan for 25-30 minutes after the assault had started. He has admitted that when Jagdeo Yadav got ready to fire his gun at that time nobody had caught Raj Ballabh. Although in the fardbeyan he had claimed that Jagdeo Yadav fired his gun at Raj Ballabh but it hit Ram Saran Yadav, in court he has changed that version and in cross-examination he has stated in Paragraph-21 that he did not pay attention whether at the time of firing the barrel of the gun was pointed towards Raj Ballabh or not. In Paragraph-22 he has claimed that when he could not go to police station after the occurrence, he remained at his house only, thus contradicting the statement of PW-5. Ram Naresh Sharma, Mukhiya who stated that he had met the informant, Ram Janam Singh (PW-4) and Chandradeep Singh near the Baithka of Chandradeep. PW-2, Ram Kishun Singh has also stated in Paragraph-27 that informant, Jagdeo Singh and Ram Janam Singh (PW-4) had stated about the occurrence to Ram Naresh Singh. PW-4, Ram Janam Singh has however denied to have talked with Ram Naresh Singh. 25. The informant, PW-13 has stated in cross-examination that he could not recollect what clothes Ram Saran (deceased) was wearing at the time of occurrence and he has stated that he did not see any blood on the body of Ram Saran. Later, he explained that since he had not gone close to Ram Saran, therefore, he could not say about the blood on the clothes of Ram Saran. He has also expressed his inability to recollect what clothes Raj Ballabh (deceased) was wearing at the time of occurrence. In spite of cross-examination on the relevant issue this witness failed to give any explanation as to why he did not disclose about the alleged occurrence either to Ram Naresh Singh Mukhiya or the Sub Inspector of Police, Chand Govind Singh whom he admits to have seen in the village. In paragraph-30 of his cross-examination he has disclosed that he and witnesses remained at the Darwaza of Chandradeep Singh till 11:00 p.m. in the night. 26. In paragraph-30 of his cross-examination he has disclosed that he and witnesses remained at the Darwaza of Chandradeep Singh till 11:00 p.m. in the night. 26. PW-14, Krishnadeo Mallick is the Investigating Officer who has proved the fardbeyan as Exhibit-1 and has stated that he recorded the same at 23:00 hours in village, Bajitpur. He being the Officer-in-charge took up the investigation himself and recorded the statement of witnesses and on the same date he arrested Jagdeo Yadav and searched the Dalan of Jagdeo Yadav to north of which is house of Jagdeo Yadav intervened by his Sehan. He found four rooms in the pucca Dalan of Jagdeo Yadav along with an outer verandah. In one of the rooms, on the floor he found the dead body of Ram Saran Yadav. He also found blood on the floor of that room and it appeared that oil had been applied to the hands and legs of Ram Saran. In one of the rooms, he found a cot on which hay was sprayed as bedding and on the west of the cot he found dead body of Raj Ballabh Singh smeared with blood. The head of Raj Ballabh was 5 inches North from the southern wall and the legs were about 2 feet from the Northern wall. On the southern wall up to a height of about 8 feet he found spots of blood at various places. On that wall closer to floor he found very dense and deep blood spot. Blood spots were also noticed on the western wall up to 5 feet and the northern wall up to 4 feet. Some steel articles like ball bearing near the head were found smeared with blood. A slide wrench soiled with blood was found near the west of head and on the north, near the legs a rope made of hay was also found soiled with blood. Some other articles kept nearby also had blood spots. On the verandah a trail of blood was found from first pillar on the west to Darwaza of the western room. Another trail of blood was also found from the middle of Western and second pillar up to room in the centre. In the eastern room of Dalan a cover of gun was found hanging. On the verandah a trail of blood was found from first pillar on the west to Darwaza of the western room. Another trail of blood was also found from the middle of Western and second pillar up to room in the centre. In the eastern room of Dalan a cover of gun was found hanging. The Sehan in front of the Dalan of Jagdeo Yadav was 22 cubits north to south and 30 cubits from east to west. From verandah in front of the central room of the Dalan at about 10 feet north, in the Sehan spot of blood was found. From that spot at about 10 feet towards west another spot of blood was found. At both the places the blood spot was about one cubit in length and 3/4 cubit in width and it appeared that blood soaked earth had been scratched. The house of Ram Saran Yadav was at about 50 feet south of Dalan of Jagdeo Yadav. Dwarika Singhs house was about 50 cubit in the east and Raj Ballabh Singhs house was 100 yards north-east from the Dalan of Jagdeo Yadav. On the roof of that Dalan a large quantity of brickbats were found kept. Up to about 100 feet from that Dalan the brickbats were found here or there. 27. The I.O. claimed to have collected blood soaked earth, plaster and some other articles and some brickbats. He got the dead bodies photographed. The 12 photographs and negatives were marked as "X" to "X/23" for identification. He also took over investigation of the counter case from Sub-Inspector, Chand Govind Singh on 9.12.1974 and received the inquest reports prepared by Chand Govind Singh (Exhibits 3 and 3/1). He also proved postmortem reports of deceased Ram Saran and Raj Ballabh as Exhibits 4 and 4/1 and stated that Dr. L.N. Sinha who had conducted autopsy was dead. After completing investigation he submitted charge-sheet on 11.9.1975. 28. In cross-examination, PW-14 has disclosed that on 8.12.1974 at 13:45 he received information that Raj Ballabh Singh of Bajitpur had been apprehended and then he deputed S.I., Chand Govind Singh to take necessary action. At that time Raj Ballabh Singh was absconding in several criminal cases. After completing investigation he submitted charge-sheet on 11.9.1975. 28. In cross-examination, PW-14 has disclosed that on 8.12.1974 at 13:45 he received information that Raj Ballabh Singh of Bajitpur had been apprehended and then he deputed S.I., Chand Govind Singh to take necessary action. At that time Raj Ballabh Singh was absconding in several criminal cases. He recorded statement of Jagdeo Yadav on 9.12.1974 and re-inspected the place of occurrence in relation to the counter case i.e. Ghosi PS Case No. 6(12)74 and found the iron hook in the door of eastern most room amongst rooms situated on the south to be broken. He also found three steel and two wooden boxes in that room. In paragraph-30 he has falsified the informant by referring to several cases pending against Raj Ballabh Singh and also against the informant and his other brothers. 29. The defence has examined four witnesses. DW-1, Chand Govind Singh has disclosed that on 8.12.1974 he was posted in Ghosi PS as Sub Inspector of Police. At about 1:45 in the day information was received from one Ragho Singh of village Kora regarding an occurrence in village, Bajitpur. On that information Officer-in-charge, Krishnadeo Mallick (PW-14) recorded Sanha No. 124 dated 18.12.1974 and deputed him to go to Bajitpur. He reached that village with 3-4 constables and ASI, Dashrath Singh at about 4:15 p.m. He went to Dalan of Jagdeo Yadav and in two rooms he found altogether two dead bodies, one of Ram Saran Yadav and other of Raj Ballabh Singh. There was heavy tension between Yadavas and Bhumihaars of the village, therefore, he sent a special messenger to Dy.S.P., Jehanabad to seek reinforcement of more armed forces. He also sent written information to that effect to Officer-in-charge, Ghosi PS. At 4:15 p.m., he recorded the fardbeyan of Jagdeo Yadav (accused). The fardbeyan (Exhibit-A) was sent to Ghosi PS for recording FIR and he prepared inquest report of two dead bodies. He also picked up blood stained earth from the place of occurrence and recorded statement of Nathun Yadav, Kailash Yadav and Brahamdeo Yadav. At 11:15 p.m. in the night Officer-in-charge, Krishnadeo Mallick came to the place of occurrence and took over the charge of investigation. 30. According to DW-1, he found the hook in the door of eastern room broken and a wooden box lying thrown in the Sehan outside the Dalan. At 11:15 p.m. in the night Officer-in-charge, Krishnadeo Mallick came to the place of occurrence and took over the charge of investigation. 30. According to DW-1, he found the hook in the door of eastern room broken and a wooden box lying thrown in the Sehan outside the Dalan. He also found an empty of a gun in the Sehan. He claimed that he had reached Dalan of Jagdeo Yadav after crossing the Bhumihaartola of village Bajitpur. In cross-examination, he has admitted that he belongs to Yadav caste but has further stated that ASI, Dashrath Singh was Rajput and not Yadav. He disclosed in cross-examination that from Bajitpur Ghosi PS was straight south at about 3-4 miles distance. He also described the condition of the room in which dead body of Raj Ballabh Singh was lying in similar manner as PW-14. He did not find the boxes kept in the eastern room in any disorder. He described the condition of the wooden box found in the Sehan in which the clothes were found kept in proper order. 31. DW-2, Kari Devi is widow of deceased, Ram Saran Yadav. She has supported the defence version regarding dacoity in the night of 7 and 8.12.1974. According to her, after the hulla of dacoity her husband went to Dalan of Jagdeo from the west and her Bhainsur, Ganga Bishun went there from the east and she went inside her house. After some time she learnt from her nephew, Arjun that her husband had been killed. She has claimed that her husband and Ganga Bishun are joint and live in same house, they have 40-50 bighas of land and they do their own cultivation work. She has denied that they were Bataidaar of Raj Ballabh Singh. She has also denied that their crop was lying in any field in the night of dacoity. 32. DW-3, Ram Lakahan Yadav, was a Dafadar at the relevant time under Ghosi PS. He is a formal witness who claimed that Sub Inspector of Police had recorded the Fardbeyan of Jagdeo Singh Yadav in his presence and he has proved the fardbeyan as Exhibit-A. 33. DW-4, Deo Sharan Yadav is of village, Gamharpur who was named by Harikishun Thakur (PW-3) as one of the Punches in the Panchayati in which allegedly deceased Raj Ballabh had participated in the early morning on 8.12.1974. DW-4, Deo Sharan Yadav is of village, Gamharpur who was named by Harikishun Thakur (PW-3) as one of the Punches in the Panchayati in which allegedly deceased Raj Ballabh had participated in the early morning on 8.12.1974. This witness has claimed that he knew Raj Ballabh Singh but he had never participated in any Panchayati with Raj Ballabh Singh. He has further deposed that he knows Hari Kishun Thakur, PW-3 who is his covillager and before him there has never been any Panchayati between Hari Kishun and Arjun Thakur. He has admitted in cross-examination that he belongs to Yadav caste. 34. The salient features of this case are that death of two deceased is admitted by the parties. It is also admitted that Ram Saran Yadav died of fire arm injury and Raj Ballabh Singh died of assault by various weapons and not by fire arm. The place of occurrence as per the rival version is also the same, that is, the Sehan land in front of Dalan of Jagdeo Yadav accused. The real issue in dispute is regarding the time and manner of occurrence. According to Exhibit-A, which is earlier in time, accused Jagdeo Yadav has alleged regarding dacoity or attempt of it at about 3:00 or 4:00 a.m. in the night between 7th and 8th of December 1974 and has explained how Ram Saran was killed by gun shot while scuffling with a dacoit and how one of the alleged dacoits, Raj Ballabh Singh was apprehended and died due to assault by the villagers. He has explained why he had to pick up the bodies from the Sehan and keep in the rooms of Dalan so that attempt to take away the bodies may not succeed. On the other hand, as per allegations in the fardbeyan by DW-13 recorded later in the night at about 11:00 p.m. of 8.12.1974 the death of Ram Saran Yadav was explained as a result of accidental or mistaken aim of accused Jagdeo Yadav when he actually intended to kill Raj Ballabh Singh and thereafter as per allegations, Raj Ballabh Singh was killed due to assault by other accused persons on the orders of Jagdeo Yadav. According to fardbeyan of PW-13 (Exhibit-1) the occurrence of killing of the two deceased took place at about 9:00 a.m. of 8.12.1974 because Raj Ballabh Singh had gone to make Jagdeo understand the facts and Ram Saran had intervened on behalf of Raj Ballabh and was persuading him to leave that place. There is also strong difference between the parties regarding two minor occurrences which according to prosecution formed the genesis leading to the main occurrence of murder. 35. Learned Counsel for the appellants has submitted that there is unusual and unexplained delay in lodging of Exhibit-1 when admittedly police had visited the village at 4:15 p.m. and even before that one of the prosecution witnesses, Ram Naresh(PW-5), who happens to be a Mukhiya had visited the village earlier to 4:00 p.m. and had left the village soon after recording of Exhibit-A at 4:15 p.m.. It was highlighted that the explanation offered by the prosecution that they could not go out of village due to fear is not fit to be accepted because information had reached to a neighbouring Mukhiya as well as to the police station by afternoon of 8.12.1974 that Raj Ballabh Singh had been apprehended and kept confined. It was submitted that the earliest version of the occurrence has been suppressed by the prosecution by withholding those persons who gave information to PW-5, Mukhiya or to PW-14, the I.O. in the afternoon itself. The non production of station diary entry by PW-14 was highlighted in this context. It was submitted that the unusual delay was because the prosecution party was engaged in creating defence and in that long hours were spent in consultation at the Darwaza of Chandradeep Singh on whose Darwaza, Ram Naresh, PW-5 had gone and therefore according to informant the witnesses remained at Darwaza of Chandradeep Singh till 11:00 p.m. in the night. 36. It was further submitted on behalf of the appellants that there is a major contradiction in the alleged manner of occurrence as mentioned in the fardbeyan and as subsequently developed by the prosecution. It was pointed out that according to Exhibit-1 and prosecution witnesses examined earlier Jagdeo Yadav fired at Raj Ballabh Singh but the shot hit Ram Saran Yadav, apparently due to bad aim. It was pointed out that according to Exhibit-1 and prosecution witnesses examined earlier Jagdeo Yadav fired at Raj Ballabh Singh but the shot hit Ram Saran Yadav, apparently due to bad aim. But later when the prosecution became conscious that the postmortem report(Exhibit-4/1) showed a fire arm injury on the left upper part of chest with blackish margin and 18 pillets and three pieces of wads were recovered, it began to change its version by showing that before shooting, Jagdeo Yadav had come down from the roof and fired at Ram Saran from a very close range. It was submitted that close range firing at the chest as subsequently developed belies the original case of the prosecution that Ram Saran received gun-shot injury at the hands of Jagdeo Yadav due to mistaken aim. It was submitted that the initial case of the prosecution was based on account of apparent facts that Ram Saran Yadav, deceased belonged to Yadav caste and there was no reason or motive available even for the sake of allegation that Jagdeo Yadav could have deliberately fired at Ram Saran Yadav when he had allegedly got angry and started abusing all Bhumihaars because Ganga Bishun, brother of deceased, Ram Saran had been assaulted in the morning of 8.12.1974 and because of some alleged occurrence in the evening of 7.12.1974 in the field of Ram Saran Yadav. 37. It was also submitted on behalf of the appellants that the witnesses material for proving the alleged genesis such as PW-6, Raja Ram Singh and PW-8, Sarvanand Sharma were deliberately tendered and the witness like PW-1, 2 and 4 have given contradictory statements inasmuch as some have alleged assault to Ram Kishun and some have alleged assault to Raja Ram Singh and some like PW-7, Sita Ram Mistri have not mentioned even the presence of Ganga Bishun in the occurrence in the evening of 7.12.1974. 38. It was also highlighted on behalf of the appellants that if the accused persons had really committed offence as alleged, they would not have kept guarding the dead bodies by shifting them to safer place in the Dalan of Jagdeo Yadav till the arrival of police and Jagdeo Yadav and some of the other accused would not have been available in the village to be arrested by PW-14, the I.O. soon after recording of Exhibit-1. Hence, it was Submitted that the conduct and circumstances when seen in the light of the fact that Jagdeo Yadav the accused had lodged the fardbeyan, Exhibit-A much earlier as soon as the police arrived in the village, clearly cast a strong doubt on the prosecution case. 39. Lastly, it has been submitted that most of the prosecution witnesses particularly those named in the FIR i.e. PW-1, 2, 4 and the informant, PW-13 are partisan and interested witnesses belonging to the group of Bhumihaars of the village interested in defending the case vide Exhibit-A and therefore their evidence needs very careful scrutiny and their parrot-like allegations regarding killing of the two deceased should not be accepted on its face without careful analysis of broad facts and material circumstances. 40. In a criminal case the burden of proving the charges beyond reasonable doubts is always upon the prosecution party. The defence, if it comes out with a specific case must prove some basic facts to make its defence probable or to create reasonable doubts in the case of prosecution. It is not the duty of the defence to prove its case to the hilt and establish counter charges. Keeping these principles in mind and considering the salient facts and features available on record of this appeal including the facts noticed earlier, it has to be seen whether the submissions advanced on behalf of the appellants has any merit or not and whether the evidence is sufficient to establish the charges against the appellants beyond reasonable doubts. 41. The counter version given by the defence in this case is much earlier in time and at the first opportunity when the police came to the village at about 4:00 p.m.. The plea that the bodies needed to be guarded appears to be justified in view of the admission by some of the prosecution witnesses that soon after the occurrence of killing there was brick-batting. As stated in paragraph-11 of his deposition, the I.O.(PW-14) found brick-bats kept on the roof of accused, Jagdeo Yadav and also some brick-bats lying upto 100 feet towards east (the side where houses of persons belonging to Bhumihaar caste, the prosecution party, are situated). As stated in paragraph-11 of his deposition, the I.O.(PW-14) found brick-bats kept on the roof of accused, Jagdeo Yadav and also some brick-bats lying upto 100 feet towards east (the side where houses of persons belonging to Bhumihaar caste, the prosecution party, are situated). The widow of the deceased, Ram Saran Yadav, Kari Devi (DW-2) cannot be expected to favor accused, Jagdeo Yadav and depose from the side of the defence if her husband had been killed by Jugdeo Yadav even by accident, as is the prosecution case. Some witnesses like PW-4, Ram Janam Singh and PW-6, Raja Ram Singh have admitted that in the night preceding the date of occurrence of killing they had heard sound of gun fire in the village. Although the trial court in paragraph-21 of the impugned judgment has used medical evidence to hold that it improbabilies the defence version but on a careful appraisal of the medical evidence we come to the opposite conclusion. The occurrence according to the defence took place at about 3:00 or 4:00 in the night and by that time there is every possibility that the food taken by way of dinner may not have been fully digested. Therefore the findings that stomach of the deceased contained liquid matter (undigested food) cannot be taken as a circumstance against the defence. It should not be taken to mean that the defence version of dacoity taking place has been established beyond reasonable doubts. Such burden cannot be cast upon the defence. The death of Ram Saran clearly appears to be under circumstances difference from what has been alleged by the prosecution in this case. The sound of firing in the night as admitted by two witnesses coupled with the fact that widow of Ram Saran, the deceased has deposed in favour of the defence creates serious doubt regarding the prosecution case of killing of Ram Saran Yadav by Jagdeo Yadav, accused. No witness has claimed to have seen brick-bats being collected on the roof of accused, Jagdeo Yadav. Collection of brick-bats prior to the arrival of witnesses in the morning shows that some occurrence might have taken place in the night hours. 42. It is worth noticing that, according to PW-5, Ram Naresh Mukhiya at about 2:00-2:30 p.m. he received information that Jagdeo Yadav has assaulted Raj Ballabh and confined him in the house. Collection of brick-bats prior to the arrival of witnesses in the morning shows that some occurrence might have taken place in the night hours. 42. It is worth noticing that, according to PW-5, Ram Naresh Mukhiya at about 2:00-2:30 p.m. he received information that Jagdeo Yadav has assaulted Raj Ballabh and confined him in the house. Similarly PW-14, the I.O., Krishnadeo Mallick has admitted in cross-examination that on 8.12.1974 at 13:45 hours he had received information that Raj Ballabh Singh of Bajitpur has been apprehended and on that information he sent S.I., Chand Govind Singh (DW-1) for required action. He disclosed that at that time Raj Ballabh Singh, the deceased was absconding in several criminal cases. DW-1 has also deposed without any challenge that while he was in Ghosi police station at 1:45 p.m. during day one Ragho Singh of Kora village came to the police station and gave information of an occurrence in village, Bajitpur on the basis whereof Officer-in-charge, I Krishnadeo Mallick made entries in Sanha No. 130 dated 8.12.1974. The aforesaid discussion clearly shows that the information reaching to the Mukhiya or to the police station in the after-noon was not at all in respect of killing of Ram Saran Yadav or in respect of his being kept confined by Jagdeo Yadav, accused. Information was only that Jagdeo Yadav has assaulted Raj Ballabh and confined him in the house. 43. All the material prosecution witnesses are clearly partisan and belong to one caste of village Bajitpur. This category of witnesses includes the witnesses named in the FIR such as, Rajeshwar Singh (PW-1), Ram Kishun Singh (PW-2) and Ram Janam Singh (PW-4). PW-3 would also come in the same category although he is not named in the FIR. PW-5, Ram Naresh Mukhiya is not mentioned in the FIR. He is also a Bhumihaar by caste but belongs to another village. PW-6, 8, 9, 10 & 12 have been tendered and are not of any significance. They are also from the same village and caste. PW-7, Sita Ram Barhi (Mistri) has been examined for proving previous evening occurrence and he belongs to another caste. PW-11, Arjun Kumar Singh is not named in the FIR but he is also Bhumihaar from village, Bajitpur. The informant, Jagdeo Singh and his brother, Raj Ballabh Singh, the deceased also happen to be Bhumihaars and resident of village, Bajitpur. PW-7, Sita Ram Barhi (Mistri) has been examined for proving previous evening occurrence and he belongs to another caste. PW-11, Arjun Kumar Singh is not named in the FIR but he is also Bhumihaar from village, Bajitpur. The informant, Jagdeo Singh and his brother, Raj Ballabh Singh, the deceased also happen to be Bhumihaars and resident of village, Bajitpur. Thus, it is found that the material witnesses are partisan and interested as many of them are inter se related and some are accused in the counter case. On careful scrutiny of their evidence it is found that version given by them in respect of killing of at least, Ram Saran Yadav is not at all worthy of acceptance. The gradual improvement in the prosecution case so as to fit in with the medical evidence showing Ram Saran Yadav had a fire arm injury with a blackened margin, appears to have caused the prosecution witnesses to change their earlier case in the fardbeyan to such an extent that it is not at all in keeping with the original version that accused, Jagdeo Yadav fired at Raj Ballabh Singh but the shot hit Ram Saran Yadav. Hence, the charge of killing of Ram Saran Yadav by accused, Jagdeo Yadav is found not proved and this charge fails. 44. So far as the killing of other deceased, Raj Ballabh Singh is concerned, the unexplained long delay in lodging of the present case makes the prosecution case highly suspect specially when it has failed to prove a major part of its case relating to killing of Ram Saran Yadav. 45. A careful application of mind to the entire evidence on record and the findings of the I.O. with respect to condition and blood marks inside the room where the dead body of Raj Ballabh Singh was found shows that after initial assault in the Sehan he was confined in a room different from where the dead body of Ram Saran Yadav was kept and found. Some of the prosecution witnesses such as PW-1 has indicated that after the main occurrence some villagers and 15 to 16 outsiders were seen going to Dalan of Jagdeo Yadav. They were variously armed and were shouting that Raj Ballabh has been apprehended and he should be killed. Some of the prosecution witnesses such as PW-1 has indicated that after the main occurrence some villagers and 15 to 16 outsiders were seen going to Dalan of Jagdeo Yadav. They were variously armed and were shouting that Raj Ballabh has been apprehended and he should be killed. PW-1 has further stated that since Raj Ballabh had been taken to a room therefore he could not say whether Raj Ballabh was further assaulted or not. Some other prosecution witnesses have also admitted to have seen outsiders at the Dalan of Jagdeo Yadav. The condition of the room as found by the I.O. indicates that there could have been some occurrence in the room due to which heavy amount of blood was found on the floor and blood spots of various sizes were found even on the walls and on most of the articles kept in the concerned room. Hence, it is deemed not safe to accept the case of the prosecution even in respect of killing of Raj Ballabh Singh. 46. The aforesaid findings appear to be unavoidable in view of clear partisan nature of witnesses on behalf of the prosecution and apparent unexplained delay in lodging of fardbeyan even when police had come to the village by 4:00 p.m.. The more than usual reaction on apprehension of Raj Ballabh Singh leading to coming of outsiders to the Dalan of Jagdeo Yadav appears probable on account of mysterious killing of Ram Saran Yadav and criminal background of Raj Ballabh Singh, the other deceased. 47. Thus, on careful consideration of all the materials it is found that the prosecution has not been able to bring home the charges against the appellants beyond reasonable doubts. The appellants are, therefore, found entitled to benefit of doubt and are acquitted of all the charges on that basis. The appeal of all the remaining appellants i.e. appellant No. 1, Jagdeo Yadav, appellant No. 3, Basanti Yadav, appellant No. 5, Dudheshwar Yadav and appellant No. 6, Brahmdeo Yadav are allowed. Their convictions and sentences are set aside. Since they appear to be on bail, therefore, their bail bonds shall stand discharged.