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2006 DIGILAW 1216 (PAT)

State of Bihar v. Mahendra Yadav

2006-12-08

body2006
SHIVA KIRTI SINGH, J.:–The Death Reference is in respect of accused Mahendra Prasad Yadav who has also preferred Cr. Appeal No. 253 of 2003. The other four Criminal Appeals have been preferred by four co-accused who have also been tried and convicted together by the same judgment and order dated 5th May, 2003 passed by 1st. Addl. District and Sessions Judge, Bhagalpur in Sessions Case No. 425 of 2002, Trial No.104/2002 whereby all the five accused/appellants have been convicted under Section 302/149 I.P.C., Section 148 I.P.C. and Section 27 of the Arms Act. No separate sentence has been passed under Section 148 I.P.C. but there is a direction to treat the period spent under jail custody by the accused persons as period of sentence. Under Section 27 of the Arms Act all accused have been sentenced to Rigorous Imprisonment for three years. Under Section 302/149 I.P.C. accused Mahendra Yadav has been awarded death sentence whereas other four accused/appellants have been awarded Rigorous Imprisonment for life. The appellants have challenged the aforesaid judgment and order of conviction and sentence through these appeals which have been heard together and shall be governed by this common judgment. 2. The gist of the prosecution case as mentioned in the Fardbeyan (Exhibit-4) of the informant, Hemant Kumar Yadav (P.W.11) is that he had gone to Mukheria Bahiar on 14.10.2000 at about 4 P.M. along with his co-villagers Anesh Yadav (Deceased), Sanjay Yadav (P.W.9), Kamlesh Yadav (P.W.7), Raghuvir Kumar (P.W.3) and Rajeev Kumar (P.W.1) for irrigating field. After irrigating the field at Mukheria Bahiar when they were returning home at about 9 P.M. and had crossed Railway line and were crossing a ditch through an electric pole kept over the ditch one by one. Anesh Yadav was crossing in front of all. They saw the five accused/appellants all armed with Gun, Rifle and Carbine sitting at a distance of about 25 yards towards east. In the moon light he saw Binod Yadav with single barrel gun, Ranjan Yadav with Rifle, Ganesh Yadav with Rifle, Mahendra Yadav with Carbine and Pappu Yadav with a rifle in their hands. On seeing them Ganesh Yadav ordered to kill and on this accused Ranjan Yadav, Binod Yadav and Mahendra Yadav started firing indiscriminately with their gun, rifle and carbine. On seeing them Ganesh Yadav ordered to kill and on this accused Ranjan Yadav, Binod Yadav and Mahendra Yadav started firing indiscriminately with their gun, rifle and carbine. The shots hit at right hand and both thighs of Anesh Yadav who sustained injuries and fell down at that very place. When firing started the informant and his other companions hid themselves behind the ditch. Villagers on hearing the sound of firing raised hue and cry and then the accused person fled away towards east. A large number of villagers came witnessed the occurrence and took injured Anesh Yadav to Mayaganj (Bhagalpur) hospital for treatment. As soon as they entered the hospital Anesh died at about 11.00 P.M. The cause of occurrence was alleged to be old enmity and dispute with all the accused persons. 3. The aforesaid Fardbeyan of P.W.11 was recorded by a Sub-Inspector of Police, Md. Shamim (P.W.10), Officer-Incharge of Lodipur Police Station on 15.10.2000 at 10 A.M. at Jawahar Lal Nehru Medical College and Hospital, Bhagalpur. After preparing the inquest, getting the post-mortem conducted and completing the investigation charge sheet was submitted against the appellants leading to their trial in which they pleaded not guilty to the charges under Sections 148, 302/149 of the I.P.C. and Section 27 of the Arms Act. 4. From the cross-examination and statement of the accused under Section 313 of the Cr.P.C. the defence of the accused persons appears to be total denial of the occurrence as alleged by the prosecution and their false implication due to old enmity and series of past cases between rival groups. 5. The prosecution in order to prove the charges examined altogether 11 witnesses out of whom the four alleged companions of the informant and the informant have already been noted earlier as P.W.s, 1, 3, 7, 9 and 11, P.W.2 Lalan Yadav, a co-villager of the informant has claimed to be a hearsay witness. P.W.4, Anuda Devi is wife of deceased Anesh Yadav. She has also claimed to have heard about the occurrence and to have gone with him to the hospital. P.W.5, Raj Kishore Singh is another Investigating Officer who had completed the investigation and submitted charge-sheet. He did not record the statement of any witness nor he inspected the place of occurrence. Thus, he is a formal witness. P.W.6, Dr. She has also claimed to have heard about the occurrence and to have gone with him to the hospital. P.W.5, Raj Kishore Singh is another Investigating Officer who had completed the investigation and submitted charge-sheet. He did not record the statement of any witness nor he inspected the place of occurrence. Thus, he is a formal witness. P.W.6, Dr. Atul Kumar Malik is the doctor who held autopsy on the dead body of the deceased on 15.10.2000 at 2.30 in the after noon. He has proved the postmortem report as Exhibit-1. He found the clothes of the deceased soiled with dry blood and blood clots. He also found the following injuries on the dead body:– (i) One wound of entry with inverted and blacken margin 4"x2"x bone deep on upper part of left thigh. The bullet after passing through soft tissues pierced femoral artery, femoral vein caused fracture of head of left femour and was found embedded in soft tissues of left thigh. One deform metallic bullet was recovered and was handed over under cover for needful. (ii) One lacerated wound 3"x1" x muscle deep on outer aspect of right fore-arm 3" below elbow joint. No tattoing, blackening or grease collar could be found on either end of injury, (iii) One abrasion 1/2"x1/4" was present on upper and inner part of left thigh. No blackened hold like injury was present on left thigh as mentioned in police inquest. Injury no.1 was grievous by fire arm. The other two injuries were simple by hard and blunt substance. The cause of death was haemorrhage and shock. Death had occurred within 24 hours of the postmortem examination. According to this witness blackening was possible if the shot was fired within 3-4 feet. 6. P.W.8, Ram Swaroop Yadav is father of the deceased. He claims to have heard sound of firing and to have seen accused/appellants running away with arms. He has claimed to have gone to the Hospital with injured (deceased). As noted earlier P.W.10, Md. Shamim recorded the Fardbeyan and was the first Investigating officer. 7. The defence, in order to prove its defence has examined eight witnesses. D.W.1. Md. Shakur is a formal witness. He has proved Exhibit-A, a vakalatnama signed and accepted by Binod Kumar Yadav accused who is an advocate and has claimed to have been implicated due to his professional work. D.W.2. 7. The defence, in order to prove its defence has examined eight witnesses. D.W.1. Md. Shakur is a formal witness. He has proved Exhibit-A, a vakalatnama signed and accepted by Binod Kumar Yadav accused who is an advocate and has claimed to have been implicated due to his professional work. D.W.2. Niranjan Prasad Yadav is a co-villager of the informant and also of some of the accused. He has claimed that on the date of occurrence he was at home and he did not hear any sound of firing nor saw any person coming from his village. D.W.3 Jaggu Yadav, is similar to D.W.2, D.W.4, Raman Sah, D.W.5, Ravi Sharma, D.W.6, Subodh Rai, D.W.7, Jitendra Prasad Yadav and D.W.8, Arun Kumar appear to have been examined in support of plea of alibi of appellants Ranjan Yadav and Pappu Kumar @ Ashwani Kumar Yadav that they were attending a political meeting and a Cricket match on the date of the alleged occurrence. 8. From the side of the prosecution, as noticed earlier postmortem report has been exhibited as Exhibit-1. Exhibits 2 and 3 are signatures of witness Sanjay Yadav on inquest report and on seizurelist. Exhibit 2/a is signature of witness Sanjay Yadav on Fardbeyan. Exhibit-4, Exhibit 2/b is signature of one Sachidanand Rai on formal F.I.R. Exhibit-5 is the inquest report and Exhibit-6 is a seizurelist showing seizure of three fired empty cartridges with letters "8 MM Kf 99" inscribed on the bottom shown to have been seized from paddy field of Bairagi Yadav, a resident of village Khutaha, situated at Bhutenia Bahiar to the east of Bhagalpur Bounsi Railway line. 9. The defence also brought on record several documents which have been marked Exhibits A to H. Exhibit-A is signature of Binod Kumar Yadav (Advocate) on a vakalatnama dated 15.9.2000. Exhibit-B is voter list of the year 1995 of village Panchayat Khutaha. Exhibit-C to C/2 are charge-sheet of Jagdishpur P.S. Case No.86/91, Final Form/Report of Jagdishpur P.S. Case No. 188/98 and Final Form/ Report of Jagdishpur P.S. Case No. 201/97, Exhibit-D is an order of bail to Subhash Yadav. Exhibits E and E/1 are copies of judgments in Sessions Case Nos. 592/92 and 106/98. Exhibit-C to C/2 are charge-sheet of Jagdishpur P.S. Case No.86/91, Final Form/Report of Jagdishpur P.S. Case No. 188/98 and Final Form/ Report of Jagdishpur P.S. Case No. 201/97, Exhibit-D is an order of bail to Subhash Yadav. Exhibits E and E/1 are copies of judgments in Sessions Case Nos. 592/92 and 106/98. Exhibits F, F/1, F/2 and F/3 are certified copies of the F.I.R. of Jagdishpur P.S. Case No. 86/91, Jagdishpur P.S. Case No. 188/98, Jagdishpur Exhibit-G is endorsement of DW-5, Ravi Sharma on the envelop of a CD. Cassette. Exhibits F/4 and F/5 are certified copies of F.I.R. of Kotwali PS Case No. 410/2000 and Jagdishpur P.S. Case No. 163/97. The last document of defence-Exhibit-H is a certified copy of Sanha No. 3310/2000 dated 12-10-2000 by accused Binod Kumar Yadav regarding alleged threat to him by the informant, Hemant Kumar Yadav and P.W.9, Sanjay Kumar Yadav and one Niranjan Yadav. 10. On behalf of appellants Senior Advocate, Mr. Rana Pratap Singh submitted that enmity has been shown as motive for the occurrence and a number of documents relating to cases in the past such as Exhibit-C series, Exhibit-E and Exhibit-F series have been filed on behalf of defence also to show that some of the accused were witnesses in casses against prosecution witnesses or their family members or vice-versa and that could have been a reason why the witnesses and the informant implicated the accused persons when Anesh Yadav was killed in dark hours in different circumstances by unknown assailants. He has further submitted that there was no reason for the accused persons to choose Anesh Yadav for the offence of murder when there was no immediate cause nor the prosecution has been able to prove any motive for killing the deceased. He further submitted that unsual delay of more than 12 hours in giving the Fardbeyan without any explanation coupled with the facts that deceased was neither taken to any nearby doctor for First Aid nor any information was given to several police stations in the way to the Hospital or to the police post located at the hospital at Bhagalpur creates strong doubt that the case was concocted and lodged after due deliberation. According to learned Senior Counsel that was the reason why no independent person has been examined as a witness even to support the claim that number of persons had assembled at the alleged place of occurrence soon after the firing and killing. It was further submitted on behalf of the appellants that not only the place of occurrence as alleged by the prosecution appears to be doubtful because of failure of I.O. to find blood marks and absence of any mud or water on the body of the deceased at the time of inquest but the manner of occurrence is also doubtful because allegedly the assailants fired from about 25 yards distance and that could not have caused fire arm injury with blackened margin and two injuries by hard and blunt substance on the body of the deceased does not fit-in with the prosecution case in the F.I.R. that three persons had fired and caused injuries or with the prosecution case in the court that all the five accused fired. Lastly, it was submitted that the very story that the informant and his companions were with the deceased returning after irrigating their fields is doubtful because most of his alleged companions and the informant did not have land at Mukheria Bahiar and if they had been together with the deceased as claimed, it is highly improbable that none of them sustained any injury. 11. Since there is a strong attack regarding the alleged place of occurrence and the manner of occurrence, it will be useful to first look into the evidence of the Investigating Officer Md. Shamim, (P.W.10) who recorded the Fardbeyan, held inquest, inspected the alleged place of occurrence, seized three empty cartridges and recorded the statement of witnesses. He has claimed that on 14.10.2000 i.e. on the alleged date of occurrence itself he had received information that a person had been shot and taken to Mayaganj Hospital for treatment. He has claimed that after lodging a Sanha entry he went to Mayaganj where he learnt that Anesh Yadav had died as soon as he reached the hospital. He recorded the Fardbeyan of Hemant Kumar Yadav. The Fardbeyan and F.I.R. shows that it was recorded at the hospital on next day i.e. 15.10.2000 at 10 in the morning. The Sanha has not been produced by the prosecution. He recorded the Fardbeyan of Hemant Kumar Yadav. The Fardbeyan and F.I.R. shows that it was recorded at the hospital on next day i.e. 15.10.2000 at 10 in the morning. The Sanha has not been produced by the prosecution. He claims to have prepared the inquest report in presence of informant (P.W.11) and Sanjay Kumar Yadav (P.W.9) and a carbon copy of the inquest report has been marked as Exhibit-5. In the inquest report he has noted a wound in the wrist of left hand, a blood-stained big wound in the left thigh and a hole like wound in the right thigh resembling a black mark. he has noted that the deceased was in a shirt of sky colour and checkered Lungi of green colour and under-wear (Langota) of red colour, a black thread around the waist and 8 checkered Gamchha (towel) of sky blue colour. He has not noted any mud or water on the clothes or body of the deceased. 12. P.W.10, the Investigating Officer inspected the place of occurrence. He has described the same as such:– The Railway ditch which is situated adjacent east to Bhagalpur Bounsi Railway line in Bhutenia Bahiar of village Khutaha, is the place of occurrence. There is water and Jalkumbhi (water plant) in that. He found a RCC built electric pole kept on the ditch through which people go to the road which is adjacent west to the ditch. That road originates from Babbar Ganda in the north and runs up to village Koili. The deceased was shot at while crossing that railway ditch over the electric pole. Adjacent east to the unmettaled road and railway ditch there is a field of paddy crop of Bairagi Yadav of village Khutaha. Adjacent east to the unmetallic road and in the middle of the paddy field there are scrubs and date tree, on the ridge. Adjacent west to the place of occurrence there is railway line, and a telephone pole bearing no. 6/A and 7/2. Koili-Khutaha Railway station is at a distance of about 300 yards to the south and further south there is the house of accused Binod Yadav at a distance of about 200 yards. Adjacent east to the place of occurrence, from the paddy field of Bairagi Yadav he found three empty cartridges for which he prepared a seizurelist in presence of the informant (P.W.11) and Sanjay Kumar Yadav (P.W.9) 13. Adjacent east to the place of occurrence, from the paddy field of Bairagi Yadav he found three empty cartridges for which he prepared a seizurelist in presence of the informant (P.W.11) and Sanjay Kumar Yadav (P.W.9) 13. In cross-examination he has admitted that during service period he has received less reward and more entries of punishment in the service book. He has also admitted that he did not mention the height of the paddy crop nor he found any tramping marks which could have been caused if 5/6 persons sat down or stood up on the paddy crop. He has further admitted that there is a police camp in the Medical College, Mayaganj, Bhagalpur and police force remains there round the year. Officers and Constables are posted there so that they may record Fardbeyan of injured persons coming from out-side. He has admitted the presence of police station at Mirjan, Babar Ganj and Tilka Manjhi with wireless and telephone facilities. He has admitted that Chaukidar and Dafadar are there at Koili Khutaha but they did not give any information to him regarding the occurrence and that he had not noted from whom he got information of the occurrence but claimed that it may have been mentioned in the Sanha. He had gone to Hospital with two constables on Motorcycles. He had not talked to any doctor at the Medical College or to any police officer there. He saw the deceased kept under open sky and not inside the hospital. He did not send the cartridges for ballistic examination. He has admitted that cartridge of 8 M.M. size is not used in gun and has denied the suggestion that it cannot be used in rifle but later in paragraph-39 of his deposition he has admitted that such cartridge is not used in the rifle and he does not know whether it is used in Carbine. He has admitted that the house of one Surya Narayan Yadav is at a distance of 150 yards from the place of occurrence and a Jogni Sthan at 300 yards adjacent to which is Bathan of one Hira Yadav. He did not try to record the statement of Hira Yadav, Surya Narayan Yadav or any member of their family. He has admitted that the house of one Surya Narayan Yadav is at a distance of 150 yards from the place of occurrence and a Jogni Sthan at 300 yards adjacent to which is Bathan of one Hira Yadav. He did not try to record the statement of Hira Yadav, Surya Narayan Yadav or any member of their family. He has claimed that he wanted to meet the wife (P.W.4) or father (P.W.8) or brother of the deceased in the hospital but they could not be found. He has admitted that he did not enquire about the criminal antecedent of the deceased and whether the witnesses were professionals or independent. He has also admitted that he did not find out as to where Anesh Yadav had fallen down after receiving shot and that no witness told him as to where he had fallen. He found the Jal Kumbhi (Water Plant) in normal condition. He claimed that there was mud on the edge of the ditch. He did not seize the clothes of the deceased nor cared to find whether there was any bullet hole or blood on the clothes. 14. P.W.10 has admitted that the witnesses did not tell him the direction in which accused persons fled away. He has stated that there is a big ridge between the ditch and the filed of Bairagi Yadav with scrubes and a date tree on that. He has admitted that in the supervision note of Deputy Superintendent of Police it is mentioned that the deceased was carrying a lathi but he did not recover or seize any lathi. He did not examine any employee of the Railway Station about the occurrence nor try to find out and record statement of independent and impartial witnesses. He has admitted that in the way from Bhutenia Bahiyar to the Hospital one will see the police at some place or the other and that he did not see any cot when he reached the hospital. Now it will be useful to appraise the silent features in the deposition of the alleged eyewitnesses:– P.Ws. 1, 3, 7, 9 and 11 the informant. 15. P.W.1 Rajeev Kumar son of Yogendra Prasad Yadav has claimed to be among those who were allegedly coming back from Mukheria Bahiar along with the deceased. Contrary to the Fardbeyan he has not alleged that firing was made on the order of Ganesh Yadav. 1, 3, 7, 9 and 11 the informant. 15. P.W.1 Rajeev Kumar son of Yogendra Prasad Yadav has claimed to be among those who were allegedly coming back from Mukheria Bahiar along with the deceased. Contrary to the Fardbeyan he has not alleged that firing was made on the order of Ganesh Yadav. According to him he saw five accused firing from the filed of Bairagi Yadav. He has admitted that earlier he has deposed in another case under the name of Putul Yadav son of Yogi Yadav, According to P.W.1 deceased had land in Mukheria Bahiar but no Basa (room). He has claimed that he and Sanjay Kumar Yadav (P.W.9) also have land there. According to him after being hit by the bullet Anesh Yadav had gone to the side of ditch and his body was smeared with mud. He heard 7-8 shots and due to fear he jumped into Jalkumbhi to save himself. Contrary to documents exhibited by the defence he has tried to feign ignorance of the fact that Sanjay Kumar Yadav (P.W.9) was an accused in murder case of Ranjit Yadav in which accused Pappu Yadav and Mahendra Yadav were witnesses and that deceased Anesh Yadav and his brother Umesh Yadav were also accused in that case in which Umesh Yadav was awarded imprisonment for life. 16. P.W.3, Raghubir Kumar has claimed that when he was crossing the ditch behind Anesh Yadav and Hemant Yadav (P.W.11), he heard the sound of firing and saw all the five appellants firing by gun, rifle and carbine from the paddy field of Bairagi Yadav, in front of him. He claimed that he laid himself down in the ground and saw accused persons fled away. He and others took Anesh Yadav to hospital where he was declared dead. He has claimed that he has land in Mukheria Bahiar but could not remember Khata number or plot number, he claims to have gone to irrigate his field between 12 and 1 O'clock in the afternoon with a spade but admitted that he had not made such a claim before the police. He has denied any knowledge as to whose Basa or houses are near the place of occurrence or whether between the place of occurrence and house of Anesh Yadav there are about 20-25 houses. He has denied any knowledge as to whose Basa or houses are near the place of occurrence or whether between the place of occurrence and house of Anesh Yadav there are about 20-25 houses. He claimed that he did not fall in the ditch; the deceased fell down in the ditch but not in the water. According to him the paddy in his field was up to waist height but later he said that it was of knee height. He could not remember who brought the cot. Too many people came from the village which included father (P.W.8) and wife (P.W.4) of the deceased and Sanjay Kumar Yadav (P.W.9). He could not give the name of others. They came 5-10 minutes after the firing. He had gone to the hospital with others. He returned home at 1.30-2 in the night after spending about 10-15 minutes in the hospital. His house is about 7-8 Kilometers from the hospital and the place of occurrence is about 6-7 Kilometers from the hospital. He has denied knowledge of distance between the place of occurrence and the local Lodipur Police Station. He has attributed Binod Kumar Yadav with a double barrel gun when the Fardbeyan mentioned it to be a single barrel gun. Instead of distance of 25 yards as mentioned in the Fardbeyan he has alleged that accused persons fired at Anesh Yadav from a distance of 6-7 cubits. The paddy crop in the filed near the place of occurrence was up to knee height and the field is 20-25 cubits in length and similar in width. Anesh Yadav fell in the ditch and his feet went in the mud. His rest body was on dry land and much blood had fallen at that place. There was mud on the person of Anesh Yadav. Contrary to Exhibits F, F/1 and F/2 he has denied to have deposed in some earlier case. He has also denied his alias name of Patil Yadav. He has denied the suggestion that he is an active member of the gang of Niranjan Yadav and therefore, he gives evidence by changing his name. Contrary to Exhibits F, F/1 and F/2 he has denied to have deposed in some earlier case. He has also denied his alias name of Patil Yadav. He has denied the suggestion that he is an active member of the gang of Niranjan Yadav and therefore, he gives evidence by changing his name. Contrary to the judgment contained in Annexure-E he has denied that deceased Anesh Yadav was an accused in a case for murder of Ranjit Yadav in which accused Mahendra Yadav and Pappu Yadav were witnesses and that Umesh Yadav brother of Anesh Yadav and witness Sanjay Kumar Yadav (P.W.9) were sentenced to imprisonment for life. 17. P.W.7, Kamlesh KumarYadav has claimed to be at the place of occurrence. When they started crossing the ditch turn by turn Anesh was ahead and was hit by the bullet and fell down at that very place. He saw the five accused persons armed with gun and rifle in moon-lit night. With the help of villagers who came on hearing the sound of firing Anesh was taken to hospital and in the morning he came to know that Anesh died. Contrary to Exhibit F/4 he has denied that he had deposed before the police in the murder case of one Jai Ram. He has proved himself to be a blatant lier by denying knowledge that Anesh Yadav was related to Ram Swaroop (P.W.8) although they are co-villagers and P.W.8 is a witness in this case being father of the deceased. He has denied knowledge as to how many sons Ram Swaroop (P.W.8) has. He claims to have gone to irrigate his field at about 2.30-3.00 P.M. all by himself. He claims to have returned to his house within 5 and 1/2 to 5 hours and the irrigation work lasted for about 5 hours. He jumped into chest deep water after hearing the sound of firing after seeing that Anesh Yadav fell on the ground. He again stated that Anesh fell down on the edge of water in the mud and there was mud on his person. He has claimed to be behind Hemant Kumar Yadav who was behind Anesh Yadav. He had seen huge blood on the earth and on the clothes of Anesh Yadav. He had not stated before the police that he had jumped into the water out of fear. He has claimed to be behind Hemant Kumar Yadav who was behind Anesh Yadav. He had seen huge blood on the earth and on the clothes of Anesh Yadav. He had not stated before the police that he had jumped into the water out of fear. He has stated that house of Surya Narain Yadav is nearest to the place of occurrence and also the house of Ramdhani. According to him there are 200-300 houses between the place of occurrence and house of Anesh Yadav. Lalan Yadav (P.W.2), Nirmal Yadav, Ram Swaroor Yadav (P.W.8), Anoda Devi (P.W.4) and Bande Yadav had come first amongst the villagers about 5-7 minutes after accused had fled away. He has claimed that Anesh was taken to hospital along the railway line and Bhikhan Pur Police Station falls in the way. He has claimed that he had gone to irrigate the field of one Govardhan Yadav which he had taken on Batai (hare cropping). 18. P.W.9 Sanjay Yadav has claimed that the time of the alleged occurrence was 8/9 O'clock in the night. At that time he was coming back to his house from Mukheria Bahiar after irrigating his field. According to him while crossing the pole Anish Yadav was ahead of all followed by the informant and at that time on orders of Ganesh Yadav all the five accused shot at Anesh Yadav with Carbine, Rifle and Gun. He has lied and attempted to conceal that the informant is his nephew by first claiming that he did not know the names of his own uncles in paragraph-7 of his deposition but in paragraph-39, he admitted the vital facts confronted with names in the voter list. He has admitted that he and his brother had been in jail as accused in Ranjit Yadav's murder case. He has also denied knowledge that in the case of Ranjit Yadav's murder accused Mahendra Yadav and Pappu Yadav had deposed as witnesses. He has also denied knowledge that Anesh and his brother Umesh Yadav were also accused in that case. From Exhibit-E it transpires that this witness has attempted to deny the truth by feigning ignorance of such facts which must be in his knowledge. He has later admitted in cross-examination that he does not have land in Mukheria Bahiar and he claimed that he cultivates the land of Govardhan Yadav on Batai. From Exhibit-E it transpires that this witness has attempted to deny the truth by feigning ignorance of such facts which must be in his knowledge. He has later admitted in cross-examination that he does not have land in Mukheria Bahiar and he claimed that he cultivates the land of Govardhan Yadav on Batai. He claims to have used a spade in the irrigation work but he claimed that he left the spade in his field and collected it after 10-15 days. He has claimed that while crossing the pole he was behind the informant whereas P.W.3 has claimed that he was behind the informant. According to P.W.3 this witness had come after occurrence from village on hearing hulla along with P.W.4 and P.W.8, P.W.9 has claimed that the informant as well as Kamlesh Yadav (P.W.7), Raghuvir (P.W.3), Putul @ Rajeev (P.W.1) had fallen down in the ditch and all those who fell in the ditch were drenched with water and smeared with mud. He expressed his inability to say who was armed with what weapon. He has expressed his inability to say who brought the cot from the village, who put Anesh Yadav on the cot and who carried the same and who carried the lantern. He admitted that no attempt was made to see any doctor in the way for treatment of Anesh Yadav. According to him no doctor was available in the hospital. He could not say whether PW-1 or PW-3 had gone to the hospital or not. According to him the inquest report was prepared 24 hours after Anesh was shot and the FIR was lodged 13 hours after preparation of inquest report. These claims of this witness are against the prosecution case and contrary to the facts appearing from the concerned documents i.e. the FIR (Exhibit-4) and the inquest report (Exhibit-5). The time of the FIR is 5:00 p.m. on 15.10.2000 and time of the inquest is 10:30 a.m. on 15.10.2000. 20. PW-11, the informant has not claimed moon-light as the source for identification, in his deposition in court. He has claimed in court that all the five accused were sitting in the field of Bairagi Yadav armed with rifle, gun and carbine and on seeing the informant party the accused stood up. 20. PW-11, the informant has not claimed moon-light as the source for identification, in his deposition in court. He has claimed in court that all the five accused were sitting in the field of Bairagi Yadav armed with rifle, gun and carbine and on seeing the informant party the accused stood up. On the order of Ganesh Yadav, Mahendra Yadav, Ranjan Yadav and Binod Yadav started firing and further he claimed contrary to F.I.R. that Ganesh Yadav and Pappu Yadav also started firing at them. He claimed to have jumped in the ditch. According to him as soon as Anesh was brought to hospital on a cot he died and next day on 15-10-2000 at 10 O'clock in the day he gave information to the Officer Incharge of Lodipur Police Station about the occurrence. He has admitted that his father was convicted in the murder case of Ranjit Yadav. He has also admitted that deceased Anesh Yadav and his brother Umesh Yadav were also accused in that case. Contrary to documentary evidence he has feigned ignorance of the fact that accused Mahendra Yadav and Pappu Yadav were witnesses in that case relating to murder of Ranjit Yadav. He has also feigned ignorance that in the murder case of his uncle i.e. Sessions Case No. 106/98 brother of P.W.9 was the informant and P.W.11 was a witness and accused Pappu Yadav was an accused in that case and had been acquitted vide Exhibit E/1. He has also lied to conceal his relationship with P.W.9. Contrary to F.I.R. In which he claimed to have gone to Mukheria Bahiyar along with his co-villagers i.e. the deceased, P.W.9, P.W.7, P.W.3 and P.W.1, in paragraph-22 of his deposition he claimed to have gone there alone. He claimed that he met others at Mukheria Bahiyar. He claimed that he had gone with a spade but left the same in the field because it is the usual practice in his area. He has claimed that he has land at Mukheria Bahiar contrary to statement of P.W.8 in paragraph-23 that Hemant Kumar Yadav (P.W.11), Sanjay Kumar Yadav (P.W.9) and Rajeev Kumar (P.W.1) have no field of their own in Mukheria Bahiar, P.W.8 had volunteered that those witnesses cultivate lands on Batai (share croping). He has claimed that he has land at Mukheria Bahiar contrary to statement of P.W.8 in paragraph-23 that Hemant Kumar Yadav (P.W.11), Sanjay Kumar Yadav (P.W.9) and Rajeev Kumar (P.W.1) have no field of their own in Mukheria Bahiar, P.W.8 had volunteered that those witnesses cultivate lands on Batai (share croping). In court P.W.11 has claimed that the shots were fired from a distance of 9-10 cubits i.e. about 5 yards whereas in the F.I.R. he has given this distance as about 25 yards. In the F.I.R. he had not claimed that accused persons got up to shoot. In the F.I.R. he had claimed that he and all the others hid themselves behind the ditch and not that he had fallen in the water or in the ditch and hid himself under water. He admitted in court that he cannot tell the difference between rifle and carbine but he claimed that he heard three different types of sounds of firing. He claimed that 7 or 8 sounds of firing were made and denied knowledge that on trigger being pressed a carbine fires 36 shots simultaneously. He has also stated that no effort was made to take the injured to any doctor for treatment on the way to hospital. Contrary to the F.I.R. he denied that there was any enmity with the accused persons from before. 21. On a careful appraisal of the evidence of witnesses, particularly the material witnesses for the prosecution it transpires that the prosecution witnesses are not independent. Therefore they have been subjected to careful scrutiny. The claim of the material witnesses including the informant that they all had gone to irrigate lands in Mukheria Bahiyar and while returning together they witnessed the alleged occurrence, does not inspire confidence and credibility. At least P.Ws. 1, 9 and 11 did not have their own lands in Mukheria Bahiyar as per statement of father of the deceased, P.W.8. None of them appear to be natural in claiming that they had left their spade in their field. 22. It is clear from evidence on record including documentary evidence that there was group rivalry in the village and several criminal cases were existing in the past. None of them appear to be natural in claiming that they had left their spade in their field. 22. It is clear from evidence on record including documentary evidence that there was group rivalry in the village and several criminal cases were existing in the past. In such circumstances the absence of any injury on any of the alleged eye witnesses raises some doubt regarding their claim that they were behind the deceased in the process of crossing the ditch through the electric pole or waiting to cross over the same when the indiscriminate firing was made by three persons as per the F.I.R. and by all five persons as claimed in the court. 23. The absence of any mark of water or mud on the clothes or body of the deceased in the inquest report i.e. Exhibit-5, non-finding of any blood marks at the alleged P.O. and absence of any trampling marks in the paddy crop in the field of Bairagi Yadav creates doubt regarding the actual place of occurrence as well as the manner of the alleged occurrence. 24. The conduct of the prosecution in not attempting to take the deceased to any doctor in the way for first aid and not giving information to the police either in the way or even at the hospital where admittedly police force is posted for recording such cases, till 10 A.M. on the next day of the alleged occurrence also creates doubt that the prosecution has taken long time in planning and deliberation before recording of the Fardbeyan. P.W.7 has admitted that he had not gone to hospital. It is clear that he was inimical and interested but even then he did not go to the local police station to report the occurrence when he claims to be an eye witness. There is absolutely no explanation for about 12 hours delay in not reporting the matter to the police if there were eye witnesses of the alleged occurrence and names of the assailants was known. The Investigating Officer (P.W.10) has claimed to have received information of the occurrence on the date of occurrence itself but who have the information has not been disclosed and the prosecution has withheld the Sanha entry regarding such information by P.W.10 at the police station. The Investigating Officer (P.W.10) has claimed to have received information of the occurrence on the date of occurrence itself but who have the information has not been disclosed and the prosecution has withheld the Sanha entry regarding such information by P.W.10 at the police station. In the facts of the case a doubt arises that such suppression was intentional with a view to suppress the earliest version of the occurrence. 25. According to the prosecution case the injured deceased Anesh Yadav received injuries only by fire arms. But the postmortem report and the evidence of the doctor, P.W.6 show that the deceased had three antemortem injuries on his person out of which only one was by fire arm and the rest two were by hard and blunt substance. The fire arm injury on the thigh had blacken margins indicating firing from a close range within 3-4'. If injury np.2 on the forearm is, for the sake of arguments, accepted as an injury caused by fire arm as suggested by the learned counsel for the State and the informant, the doctor found no tatooing or blackening on the said injury, if the claim of the prosecution is accepted that the assailants were so close as to cause fire arm injury with blacken margins as found in injury no.1 then injury no.2, if caused by fire arm should have shown similar features of blackening or tatooing. Hence, there is no good reason for not accepting the opinion of the doctor in this case that injuries 2 and 3 were caused by hard and blunt object. As per Fardbeyan the assailants were at a distance of about 25 yards. This distance of shooting was attempted to be reduced to about 5 yards (9-10 cubits) in the course of deposition in court. It is not the case of the prosecution that deceased was assaulted with any hard or blunt object Thus, the objective findings of the doctor do not support the manner of occurrence as alleged by the prosecution. 26. In the Fardbeyan the informant claimed that he and his companions hid themselves behind the ditch but later this version was abandoned by most of the witnesses in view of clear topography of the alleged place of occurrence where it was not possible to hide on the slope of the railway line behind the ditch. 26. In the Fardbeyan the informant claimed that he and his companions hid themselves behind the ditch but later this version was abandoned by most of the witnesses in view of clear topography of the alleged place of occurrence where it was not possible to hide on the slope of the railway line behind the ditch. It has also come in evidence that between the unmetallic road on the east of the ditch and the paddy field of Bairagi Yadav there were scrubs and a date tree. It has also come in evidence that paddy crop was of knee to waist height. In the Fardbeyan there is a mention that the assailants were in sitting position at a distance of about 25 yards towards east. There was no mention that for giving orders or for firing, the assailants stood up or ran towards the prosecution party. In view of such topography of the alleged place of occurrence there arises a reasonable doubt whether the assailants could be actually seen behind the ridge and shrubs in midst of paddy crop. The three seized cartridges (empties) were of 8 MM size which also raises a reasonable doubt that they were all fired from one weapon. The prosecution did not get the empty cartridges examined by a ballistic expert to find out whether they had been fired by different weapons. The Investigating Officer opined that 8 M.M. cartridges could not have been fired from a gun or a rifle. These materials also raise doubt regarding the prosecution case. 27. Considering the entire materials and the aforesaid discussions. I am constraint to hold that in this case prosecution has not been able to prove its case beyond reasonable doubts. The accused persons are found entitled to benefit of doubt. Accordingly all the five appellants are acquitted of all the charges relating to murder of Anesh Yadav and their respective appeals are allowed. The reference made by trial court under Section 366 of the Code of Criminal Procedure, 1973 is answered by holding that the sentence of death passed against accused Mahendra Yadav is not fit to be confirmed and is therefore not confirmed by this court as he along with four other appellants has been found entitled for acquittal by giving benefit of doubt. 28. From the records it appears that Mahendra Yadav is in jail and other four appellants are on bail. 28. From the records it appears that Mahendra Yadav is in jail and other four appellants are on bail. Since all the five appeals have been allowed hence let appellant Mahendra Yadav be released from Jail custody forthwith if not required in any other case. The other four appellants shall stand discharged from the liability of their bail bonds. I agree.