Judgment MANOHAR LAL VISA, J. 1. Both these appeals have been heard together and are being disposed of by this common judgment because they arise out of same judgment and order dated 17.6.1997 and 18.6.1997 respectively passed by Additional Sessions Judge II, Area in Sessions Trial No. 57 of 1995. 2. Ram Sakal Singh, Prabhu Singh. Arvind Singh @ Tuntun Singh and Prabhans Singh are appellants of Criminal Appeal No. 337 of 1997 whereas Sanjay Singh @ Bhuteli Singh, Suresh Singh, Ramesh Singh and Kamlesh Singh are appellants of Criminal Appeal No. 352 of 1997. Out of them appellants Suresh Singh, Ramesh Singh and Prabhans Singh have been convicted and sentenced to undergo rigorous imprisonment for life under Section 302 of Indian Penal Code (In short "IPC") for committing murder of Ramakant Singh, Appellants Sanjay Singh @ Bhuteli Singh and Kamlesh Singh have been convicted and sentenced to undergo rigorous imprisonment for life under Section 302, IPC for committing murder of Narbdeshwar Singh @ Vakil Singh. Appellant Ram Sakal Singh has been convicted to undergo rigorous imprisonment for life under Section 114 read with Section 302 of IPC for abetting the murder of Ramakant Singh and Narbdeshwar Singh. Appellants Arvind Singh and Prabhu Singh have been convicted and sentenced to undergo rigorous imprisonment for life under Section 302/ 149 of IPC. All the appellants have been further convicted and sentenced to undergo rigorous imprisonment for three years each under Section 148 of IPC. Appellant Arvind Singh has been further convicted and sentenced to undergo rigorous imprisonment for seven years under Section 307 of IPC for attempting to kill Awadh Bihari Singh. Appellants Suresh Singh, Ramesh Singh, Arvind Singh, Sanjay Singh, Kamlesh Singh and Prabhans Singh have been further convicted and sentenced to undergo rigorous imprisonment for three years under Section 27 of Arms Act. All the sentences passed, have, however, been ordered to run concurrently. 3. The case of the prosecution, in short, is that on 11.12.1993 at about 6 p.m., informant Srikant Singh (PW 5) was taking tea at a bus stand situated near his house.His elder brother Ramakant Singh @ Lalan Singh and Narbdeshwar Singh @ Vakil Singh were returning after attending call of nature. 3. The case of the prosecution, in short, is that on 11.12.1993 at about 6 p.m., informant Srikant Singh (PW 5) was taking tea at a bus stand situated near his house.His elder brother Ramakant Singh @ Lalan Singh and Narbdeshwar Singh @ Vakil Singh were returning after attending call of nature. Appellants Suresh Singh, Ramesh Singh, Sanjay Singh carrying double barrel guns, appellant Kamlesh Singh carrying a gun, appellants Arvind Singh and Prabhans Singh carrying pipe guns, appellant Prabhu Singh carrying a bhujali and appellant Rani Sakal Singh came there and appellant Ram Sakal Singh instigated other appellants for killing Ramakant Singh on which appellant Suresh Singh fired from his double barrel gun hitting on the back of Ramakant Singh who, after receiving injury, fell down. When Narbdeshwar Singh came to rescue his brother Ramakant Singh, appellant Ram Sakal Singh again instigated the appellants for killing him also on which appellant Sanjay Singh @ Bhuteli Singh fired from his pipe gun hitting on the palm of left hand of Narbdeshwar Singh who also, after receiving injury, fell down. Appellant Ram Sakal Singh then told other appellants that both the injured were alive and if they were allowed to live, they will depose against them and asked his companions to kill them on which appellant Ramesh Singh fired from his double barrel gun hitting on the temple of Ramakant Singh who died at the spot. Appellant Kam-lesh Singh fired from his gun hitting on the abdomen of Narbdeshwar Singh. Remaining appellants, who were armed wit guns and bhujali, also opened fired from their firearms for killing Narbdeshwar Singh. In the meantime, Awadh Bihari Singh (PW 2) came there on whom appellant Arvind Singh fired from his gun inflicting injuries. In the meantime, a number of villagers, on hearing sound of firing, reached the place of occurrence and all the appellants, who belong to village of informant, ran away towards Ganga river. When Narbdeshwar Singh, who was injured, was being taken to Sadar Hospital, he died in the way. The fardebayan (Exhibit-3) of informant was recorded by Sub- Inspector N.C. Das (PW 9) on 11.12.1993 itself at about I am at Camp Sadar Hospital, Ara. When Narbdeshwar Singh, who was injured, was being taken to Sadar Hospital, he died in the way. The fardebayan (Exhibit-3) of informant was recorded by Sub- Inspector N.C. Das (PW 9) on 11.12.1993 itself at about I am at Camp Sadar Hospital, Ara. About the motive, informant, in his fardebayan has stated that in between Ram Sakal Singh and Pradeep Singh (PW 1), there were civil and criminal litigation and he had deposed in favour of Pradeep Singh and appellant Ram Sakal Singh had given threatening to him and his brother and because appellants wanted to kill him and his brothers, therefore, appellants, on the day of occurrence, committed murder of his brothers. On the basis of fardebayan of informant, formal first information report (Exhibit-4) under Sections 147, 148, 149, 324, 307 and 302 of IPC and Section 27 of Arms Act was drawn against all appellants and after investigation, charge- sheet was submitted and cognizance of the offence was taken and case was committed to the Court of Session where appellants were put on trial. Charge under Section 148 against all appellants, under Section 114 read with Section 302 of IPC against appellant Ram Sakal Singh, under Section 302 against appellants Suresh Singh, Ramesh Singh and Prabhans Singh for committing murder of Ramakant Singh, under Section 302 of IPC against appellants Sanjay Singh @ Bhuteli Singh and Kamlesh Singh for committing murder or Narbdeshwar Singh, under Section 307 of IPC against appellant Arbind Singh for making an attempt to commit murder of Awadh Bihari Singh, under Section 302 read with Section 149 of IPC against appellants Arbind Singh and Prabhu Singh for committing murder of Ramakant Singh and Narbdeshwar Singh and charge under Section 27 of Arms Act against all the appellants except appellant Prabhu Singh were framed. After trial, appellants were found guilty and were convicted and sentenced, as indicated above. 4. After trial, appellants were found guilty and were convicted and sentenced, as indicated above. 4. The case of defence, as it appears from the trend of cross-examination of prosecution witnesses and evidence adduced on their behalf, is that on the day and time of occurrence, appellant Ram Sakal Singh was sitting on a chauki outside his fertilizer shop when informant alongwith his men, variously armed with bhala, lathi and pipe gun, came there and Ramakant Singh and Narbdeshwar Singh, both deceased, started assaulting him with bhala and in the meantime, Pradeep and Tejnarain Singh opened fire by which both the deceased received firearm injuries. According to defence, appellant Ram Sakal Singh had purchased land from Tejnarain Singh in front of his house and a civil case is pending between him and informants party for the same land and appellants have been falsely implicated in this case which is a counter blast of case filed by appellant Ram Sakal Singh which has been numbered as Barahra Police Station Case No. 180 of 1993. 5. In order to prove its case, prosecution has examined nine witnesses. Srikant Singh (PW 5) is the informant. Dr. Arshad Ekram (PW 6) is the doctor who held postmortem on the dead bodies of Ramakant Singh @ Lalan Singh and Narbdeshwar Singh. Pradeep Singh (PW 1), Awadh Bihari Singh (PW 2), Rajendra Singh (PW 3) Anil Kumar Singh (PW 4) are said to be eye-witnesses to the occurrence. Naresh Prasad Mandal (PW 8), who was posted as Assistant Sub-Inspector at Sina Outpost on the day of occurrence, is said to have prepared seizure list (Exhibit-6) when he seized two live cartridges, some fired cartridges and blood-stained soil from the place of occurrence and also had prepared inquest report (Exhibit-5) of the dead body of deceased Ramakant Singh. Navin Chandra Das (PW 9) on 11.12.1993 was posted at Town Police Station, Ara and on that day, he is said to have recorded the fardebayan (Exhibit-3) of informant. He has also proved inquest report exhibit 5/1) of the dead body of Narbdeshwar Singh @ Vakil Singh. In cross-examination, he has proved the fardebayan of appellant Ram Sakal Singh which was recorded at Sadar Hospital, Ara. This fardebayan is marked Exhibit- A. 6. Dr. He has also proved inquest report exhibit 5/1) of the dead body of Narbdeshwar Singh @ Vakil Singh. In cross-examination, he has proved the fardebayan of appellant Ram Sakal Singh which was recorded at Sadar Hospital, Ara. This fardebayan is marked Exhibit- A. 6. Dr. Arshad Ekram (PW 6) has said that on 11.12.1993, he was posted as Civil Assistant Surgeon at Sadar Hospital, Area and on that day, he held post-mortem examination on the dead body of Ramakant Singh @ Lalan Singh and found the following injuries : (1) Lacerated wound over left upper part of the neck 3/4" x 1/4" x tissue deep. Shape was oval with margin blackened and edge inverted. (2) Lacerated wound over right upper neck just behind right ear and mastoid region 4" x 3" x tissue deep, margin everted and punched out. (3) Lacerated wound over left upper back of lateral aspect 1/2" x 1/4" x 1/2" x shape oval and margin charred and blackened. (4) Lacerated wound over left mid back of lateral aspect about 1" lateral to wound No. (3) 3" x 1/2" x 1/2" x margin everted. He has said that all injuries were ante-mortem in nature and wounds No. 1 and 3 were wounds of entrv whereas wounds No. 2 and 4 were wounds of exist and all injuries were caused by firearm and time elapsed since death was within four to twenty four hours. About the cause of death. he has said that it was neurogenic and haemor-rhagic shock due to injuries No. (1) and (2) caused by firearm. He has further said that on the same day at about 1 p.m., he held post-mortem examination on the dead body of Narbdeshwar Singh and found the following injuries : (1) Lacerated wound over right molar region of face 1/2" x 1/4" x tissue deep. Margin blackened and burnt and shape oval. (2) Lacerated wound over posterior occipital region of scalp just above the nape of neck, size 1-1/2" x 1/2" x brain tissue deep, edge punched out and margin everted. (3) Lacerated wound over medial aspect of middle and lower forearm, 6" x 2" x 2" margin burnt and blackened. edge punched out and everted. (4) Multiple lacerated wounds varying in size 1/10" to 1/4" diameter with blackened margin and irregular shapes scattered over upper abdomen, lower chest left and right hypochondrium over area of 6" diameter. (3) Lacerated wound over medial aspect of middle and lower forearm, 6" x 2" x 2" margin burnt and blackened. edge punched out and everted. (4) Multiple lacerated wounds varying in size 1/10" to 1/4" diameter with blackened margin and irregular shapes scattered over upper abdomen, lower chest left and right hypochondrium over area of 6" diameter. He has further said that all injuries were ante-mortem in nature and time of elapsed since death was within four to twenty four hours. Injuries No. (1) and (4) were wounds of entries and injury No. (2) was wound of exit and injury No. (3) was wound of entry and exit. He has further said that all injuries were caused by firearm and cause of death was combined neurogenic and haemorrhagic shock due to all injuries found on the dead body. He has proved post-mortem examination reports which are marked Exhibits-2 and 2/1. 7. Srikant Singh (PW 5), the informant, in his evidence, has said that on 11.12.1993 at about 6-6.30 p.m., he was taking tea at a shop at bus stand. Appellant Ram Sakal Singh was also taking tea at another shop and all appellants, variously, armed with double barrel guns, pipe guns and appellant Prabhans Singh armed with bhujali came there. At that time, his brother Ramakant Singh @ Lalan Singh was returning to his house after attending call of nature. On seeing him, appellant Ram Sakal Singh ordered other appellants to kill him on which appellant Suresh Singh fired from his double barrel gun hitting on the back of Ramakant Singh who after receiving injury, fell down. At that time, Narbdeshwar Singh @ Vakil Singh was also returning to his house after attending call of nature and when he came to rescue Ramakant Singh, appellant Ram Sakal Singh instigated other appellants to kill him also on which appellant Sanjay Singh @ Bhuteli Singh fired from his double barrel Gun hitting on his palm of left hand and Narbdeshwar Singh also fell down. Appellant Ram Sakal Singh asked appellants not to leave both the injured for giving statements against them and instigated appellants to kill them, Thereafter, appellant Ramesh Singh fired from his double barrel gun hitting on the temple of Ramakant Singh and Kamlesh Singh fired from his double barrel gun hitting on the abdomen of Narbdeshwar Singh. Appellant Ram Sakal Singh asked appellants not to leave both the injured for giving statements against them and instigated appellants to kill them, Thereafter, appellant Ramesh Singh fired from his double barrel gun hitting on the temple of Ramakant Singh and Kamlesh Singh fired from his double barrel gun hitting on the abdomen of Narbdeshwar Singh. When Awadh Bihari Singh (PW 3) went to rescue, appellant Ar-vind Singh @ Tuntun Singh fired from his pipe gun hitting his stomach. Thereafter, appellant Prabhans Singh fired from his pipe gun causing injures on the right side of face of Narbdeshwar Singh. He has added that Ramakant Singh died at the spot but deceased Narbdeshwar Singh was injured when the appellants, after firing, fled away towards north side. About Narbdeshwar Singh, he has said that while he was being taken to Sadar Hospital by bus, he died in the way and. thereafter, his dead body was taken to Sadar Hospital. About motive of occurrence, he has said that there was litigation between Pradeep Singh (PW 1) and appellant Ram Sakal Singh in which he had deposed on 7.12.1993 in favour of Pradeep Singh and appellant Ram Sakal Singh had given him threatening not to depose but in spite of his threatening, he had deposed. He has said that his fardebayan was recorded by police at Hospital which was red over to him on which he put his signature (Exhibit-1). In cross-examination, he has said that occurrence of this case had taken place on the day and time stilted by him and he has no information whether Barhara Police Station Case No. 189 of 1993 was lodged by the appellants for an occurrence on the same day in which he and others are accused persons. He has further denied to have seen appellant Ram Sakal Singh in hospital and has said that he does not have any information that appellant Ram Sakal Singh had become injured and his fardebayan was recorded at Sadar Hospital. 8. He has further denied to have seen appellant Ram Sakal Singh in hospital and has said that he does not have any information that appellant Ram Sakal Singh had become injured and his fardebayan was recorded at Sadar Hospital. 8. Pradeep Singh (PW 1), in his evidence, has said that at the time of occurrence, he was in his betel shop when he saw appellants armed with double barrel guns, pipe guns and bhujali came there and at that time, deceased Ramakant Singh @ Lalan Singh was returning after attending call of nature and on seeking him, appellant Ram Sakal Singh instigated other appellants to kill him on which appellant Suresh Singh fired hitting on the back of Ramakant Singh and when Narbdeshwar came running to rescue him, appellant Sanjay Singh fired on his arm and when Awadh Bihari came to rescue, appellant Arvind Singh fired hitting on his panjra (lateral side). He has further said that Ram Sakal Singh again ordered to fire Ramakant Singh and Narbdeshwar Singh on which appellant Ramesh Singh fired from his double Bareel gun hitting on the temple of Ramakant Singh and appellant Kamlesh fired from his gun hitting on the abdomen of Narbdeshwar Singh and on hulla all appellants fled away towards north side. He has added that Ramakant Singh died on the spot while Narbdeshwar Singh died in the way while he was being taken to hospital. About motive, he has said that there was civil and criminal litigation between him and appellant Ram Sakal Singh and informant, who is brother of both the deceased, had deposed from his side. Awadh Bihari Singh (PW 2) has said that at the time of occurrence, he was taking tea at bus stand when he saw all the appellants with arms and deceased Ramakant Singh was returning after attending call of nature and on seeing him, appellant Ram Sakal Singh ordered other appellants to kill him on which appellant Suresh Singh fired from his double barrel gun and when Narbdesh-war Singh came to rescue him, appellant Sanjay Singh fired on him hitting on the palm of his left hand and when he went to rescue them, appellant Arvind Singh inflicted firearm injury by firing from his pipe gun. He has added that appellant Ram Sakal Singh again instigated other appellants to kill them otherwise they would give statement before police and then appellant Ramesh fired hitting on the temple of Ramakant Singh who died at the spot and appellant Kamlesh Singh fired hitting on the abdomen of Narbdeshwar Singh and Prabhans fired from his gun causing injury on the right side of face of Narbdeshwar Singh and on hulla when number of persons came there, all appellants fled away towards northern side. He has said that when deceased Narbdeshwar Singh was being taken to hospital by him and others, he died in the way. He has said that he had received injuries at his left panjra and he had handed over his blood-stained clothes to police. In cross-examination, he has admitted that Awadh Singh is his own brother and Pradeep Singh (PW 1) is the son of this Awadh Singh and is joint with his brother and is unmarried. He has further admitted that he and his brother Awadh Bihari Singh had filed a Civil Case No. 222 of 1993 against appellant Ram Sakal Singh which is pending in the Court of Subordinate Judge Vth and Kaushalya Devi is wife of his brother who executed sale deed in favour of Ram Sakal Singh, his two brothers and nephews and for cancellation of that sale deed, he and his brother had filed the civil case. In para 7 of cross- examination, he has admitted that for an occurrence of the same day, appellant Ram Sakal Singh had filed a criminal case against him and other but has said that case is false case. 9. Rajendra Singh (PW 3) has said that at the time of occurrence, he was at his betel shop situate near the bus stand and saw all the appellants coming there. Appellants Suresh Singh, Ramesh Singh, Kamlesh Singh and Sanjay Singh were armed with double barrel guns, appellants Prabhans Singh and Arvind Singh were armed with pipe guns and appellant Prabhu Singh was armed with bhujali. Appellants Suresh Singh, Ramesh Singh, Kamlesh Singh and Sanjay Singh were armed with double barrel guns, appellants Prabhans Singh and Arvind Singh were armed with pipe guns and appellant Prabhu Singh was armed with bhujali. Deceased Ramakant Singh was returning after attending call of nature and on seeing him, appellant Ram Sakal Singh instigated other appellants to kill him on which Suresh Singh fired hitting on back of Ramakant Singh and after receiving injury, he fell down and when deceased Narbdeshwar Singh went to rescue Ramakant Singh, appellant Sanjay Singh fired on him hitting on palm of left hand and when Awadh Bihari Singh went to rescue both the deceased, appellant Arvind Singh fired from his pipe gun hitting on his panjra and, thereafter, appellant Ram Sakal Singh gain instigated other appellants to kill the injured persons otherwise they would make statement before police and, thereafter, appellant Ramesh Singh fired from his gun hitting on temple of Ramakant Singh who died at the spot. Appellant Kamlesh Singh fired from his gun hitting on the abdomen of deceased Narbdeshwar Singh and appellant Prabhans Singh fired from his pipe gun causing injury on the right side of face of Narbdeshwar Singh who also died while he was being taken to hospital. In para 8 of his cross-examination, he has given the details of members of the family of his grandfather Ram Ratan Singh and has admitted that deceased Narbdeshwar Singh and Ramakant Singh were his own uncles. In para 5 of his cross- examination. he has admitted that appellant Ram Sakal Singh had lodged a criminal case against him and others for an occurrence of the same day but in para 7 of his evidence, he has said that the case was found false by police. About appellants, he has admitted that appellants Suresh, Ramesh, Arvind and Sanjay are sons of appellant Ram Sakal Singh and appellant Kamlesh Singh is son of Ram Naresh Singh who is brother of appellant Ram Sakal Singh meaning thereby appellant Kamlesh Singh is nephew of appellant Ram Sakal Singh. About appellants, he has admitted that appellants Suresh, Ramesh, Arvind and Sanjay are sons of appellant Ram Sakal Singh and appellant Kamlesh Singh is son of Ram Naresh Singh who is brother of appellant Ram Sakal Singh meaning thereby appellant Kamlesh Singh is nephew of appellant Ram Sakal Singh. Anil Kumar Singh (PW 4) has said that at the time of occurrence, after attending call of nature, he was washing his hands at a hand pump at bus stand when he saw appellants Suresh Singh, Ramesh Singh, Kamlesh Singh, Sanjay Singh armed with double barrel guns, appellants Prabhans and Arvind armed with pipe guns and appellants Prabhu Singh armed with bhujali came there and appellant Ram Sakal Singh was also standing there. Deceased Ramakant Singh, after attending call of nature, came there and on seeing him, appellant Ram Sakal Singh instigated other appellants to kill him on which Suresh Singh fired from his double barrel gun hitting on the back of Ramakant who, after receiving injury, fell down and when Narbdeshwar Singh went to rescue him, appellant Sanjay Singh fired from his double barrel gun hitting on the palm of left hand of Narbdeshwar Singh and when Awadh Bihari Singh went to rescue Ramakant Singh and Narbdeshwar Singh, appellant Arvind fired from his pipe gun causing injury on his left panjra. Appellant Ram Sakal Singh again instigated other appellants to kill the injured persons because if they were allowed to escape, they would give statement against them before police and, thereafter, appellant Ramesh Singh fired from his gun hitting on the temple of deceased Ramakant who died at the, spot. Appellant Kamlesh Singh fired hitting on the abdomen of Narbdeshwar Singh and appellant Prabhans Singh fired from his pipe gun causing injury on the right side of face of Narbdeshwar Singh and, thereafter, all the appellants fled away. About Narbdeshwar Singh, he has said that he died when he was being taken to hospital. In para 10 of his cross-examination. he has admitted that witness Pradeep Singh (PW 1) had filed a criminal case against appellants Ram Sakal, Suresh, Ramesh, Arvind and Kamlesh which was filed before the occurrence of this case and in that case, he had deposed on behalf of prosecution in Court. 10. In para 10 of his cross-examination. he has admitted that witness Pradeep Singh (PW 1) had filed a criminal case against appellants Ram Sakal, Suresh, Ramesh, Arvind and Kamlesh which was filed before the occurrence of this case and in that case, he had deposed on behalf of prosecution in Court. 10. The case of defence is that on the day and time of occurrence, it was prosecution party who badly assaulted appellant Ram Sakal Singh who was admitted to hospital where his statement was recorded and a case was registered against appellants. The further case of defence is that in order to create defence, appellants have been falsely implicated in the present case. Mahesh Kumar Singh (DW 1), a doctor has been examined on behalf of appellants who, in his evidence. has said that on 11.12.1993, he was posted as Civil Assistant Surgeon at Sadar Hospital, Area and on that day at 11.05 a.m. he admitted appellant Ram Sakal Singh in hospital as indoor patient. He has proved the entry in his pen and signature (exhibit F) by which appellant Ram Sakal Singh was admitted as indoor patient in the hospital. This witness has further said that appellant Ram Sakal Singh was admitted in injured condition and he examined him and found following injures on his person : (1) Incised wound 3-1/4" x 1/2" x cavity deep over left side of chest. (2) Incised wound 2" x 1/4" x muscle deep over right side of chest horizontally, (3) Incised wound 3/4" x 1/2" x muscle deep over left heap and upper thigh. (4) Abrasion 1" x 1/6" over right shoulder alongwlth bruise 3" x 2" over right shoulder and for this injury, patient was advised X-ray. (5) Abrasion 1/4" x 1/4" over back of chest on right side. He has said that age of inquires was within six hours and injuries No. (1), (2) and (3) were caused by sharp cutting and penetrating substance which may be bhala and injuries No. (4) and (5) were caused by hard and blunt substance and may be by fall. He has added that on 22. 12. 1993, he gave supplementary opinion about the nature of injuries stating that injuries No. (1). (2) and (3) were simple in nature but injury No. (4) was grievous in nature vide x-ray plate No. 4/939 dated 17.12.1993 showing fracture of accornin process of right scapula. He has added that on 22. 12. 1993, he gave supplementary opinion about the nature of injuries stating that injuries No. (1). (2) and (3) were simple in nature but injury No. (4) was grievous in nature vide x-ray plate No. 4/939 dated 17.12.1993 showing fracture of accornin process of right scapula. He has proved the carbon copy of injury report which is marked Exhibit-G. 11. Defence has also brought on record the fardebayan (Exhibit-A) of appellant Ram Sakal Singh recorded by Sub-Inspector N.C. Das on 12.12.1993 at 10.30 am at Sadar Hospital, Ara and formal first information report (Exhibit-B) which was drawn against the informant, both the deceased, PWs 1, 2 and 3 and others under Sections 147, 148, 324, 307 of IPC. Ex-hibit-C is the certified copy of order dated 12.1.1994 passed by Chief Judicial Magistrate in Barhara Police Station Case No 189 of 1993. Exhibit-D is the certified copy of judgment of complaint case No. 346 of 1993 filed by PW 1 against appellants Ram Sakal Singh, Kamlesh Singh, Suresh Singh, Arvind Singh and others showing that accused person were acquitted. Ex-hibit-E is the certified copy of decree passed in Title Suit No. 94 of 1983 in which Most. Piyar Kuer and others were plaintiffs and Jagarnath Prasad Singh was one of the defendants. Exhibit-H is the certified copy of charge-sheet in which appellant Ram Sakal Singh was informant and informant of this case, PWs 1 and 4 were accused. Exhibit-H/1 is the certified copy of charge-sheet of Krishnagarh Police Station Case No. 98 of 1995 instituted for kidnapping of son of Hira Singh in which PW 4 Anil Singh was one of the accused. Exhibit-I is the certified copy of first information report of Brahra Krishnagarh Police Station Case No. 197 of 1993 lodged by appellant Suresh Singh against informant, PW 1 and deceased Ramakant Singh and others. Exhibit-I/1 is the certified copy of first information report of Brahra Police Station case No. 159 of 1993 in which PW 1 was the informant and appellants Suresh, Arvind, Sanjay and Ramesh Singh were accused. 12. The learned counsel appearing on behalf of appellants has argued that prosecution has not satisfactorily explained the injuries which were received by appellant Ram Sakal Singh at the same time which is said to be the time of occurrence of the present case. Mr. 12. The learned counsel appearing on behalf of appellants has argued that prosecution has not satisfactorily explained the injuries which were received by appellant Ram Sakal Singh at the same time which is said to be the time of occurrence of the present case. Mr. Lala Kailash Bihari Prasad, learned Additional Public Prosecuter appearing on behalf of prosecution, by relying upon a decision of Supreme Court reported in 2000 SCC (Cri.) 796. has argued that if the evidence led by prosecution is clear, cogent and trustworthy in a case of murder, prosecutions failure to explain injuries on accused cannot be held to be fatal to the case of prosecution. The paragraphs of the above mentioned case, which has been relied upon by Mr. Lala Kailash Bihari Prasad and which are relevant for the purpose of the present case, are quoted below : "So far as the question whether non-explanation of the injuries on accused Rajender ipso facto can be held to be fatal to the prosecution case, it is too well settled that ordinarily the prosecution is not obliged to explain each injury on an accused even though the injuries might have been caused in the course of the occurrence, if the injuries are minor in nature, but at the same time if the prosecution fails to explain a grievous injury on one of the accused persons which is established to have been caused in the course of the same occurrence then certainly the Court looks at the prosecution case with a little suspicion on the ground that the prosecution has suppressed the true version of the incident. In the case in hand accused-appellant Rajender had one penetrating wound, three incised wounds and one lacerated wound and of these injuries, the penetrating wound on the left axillary area in the 5th intercostal space 1/2" x 1/3" x 3/4" was grievous in nature as per the evidence of the doctor, PW 3 who had examined him. On the basis of the evidence of Pw 3 as well as PW 11 the Courts have come to the conclusion that there is no room for doubt that the appellants and their men had injuries on their person on the date of the occurrence. On the basis of the evidence of Pw 3 as well as PW 11 the Courts have come to the conclusion that there is no room for doubt that the appellants and their men had injuries on their person on the date of the occurrence. The question, therefore, that remains to be considered is whether non-explanation of the said injuries on accused-appellant Rajender can form the basis of a conclusion that the prosecution version is untrue. In Mohar Rai and Bharath Rai v. State of Bihar, this Court had held that the failure of the prosecution to offer any explanation regarding the injuries found on the accused shows that the evidence of the prosecution witness relating to the incident is not true or at any rate, not wholly true and further, those injuries probabilise the pleas taken by the accused persons. But in Lakshmi Singh v. State of Bihar, this Court, considered Mohar Rai and came to hold that non- explanation of the injuries on the accused by the prosecution may affect the prosecution case and such non-explanation may assume greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution. The question was considered by the three-Judges Bench of this Court in the case Vijayee Singh v. State of U.P. and this Court held that if the prosecution evidence is clear, cogent and creditworthy and the Court can distinguish the truth from falsehood the mere fact that the injuries are not explained by the prosecution cannot be itself be a sole basis to reject such evidence and consequently the whole case and much depends on the facts and circumstances of each case. In Vijayee Singh case the Court held that non- explanation of injury on the accused person does not affect the prosecution case as a whole. In Vijayee Singh case the Court held that non- explanation of injury on the accused person does not affect the prosecution case as a whole. The question again came up before a three-Judge Bench recently in the case of Ram Sunder Yadav v.State of Bihar, where this Court reaffirmed the statement of law made by the earlier three-Judge Bench in Vijayee Singh case and also relied upon another three-Judge Bench decision of the Court in Bhaba Nanda Sarma v. State of Assam, and as such accepted the principle that if the evidence is clear cogent and creditworthy then non- explanation of the injury on the accused ipso facto cannot be a basis to discard the entire prosecution case. The High Court in the impugned judgment has relied upon the aforesaid principle and examined the evidence of the four eye-witnesses and agreeing with the learned Sessions Judge come to the conclusion that the prosecution witnesses are trustworthy and, therefore, non-explanation of the injury in question cannot be held to be fatal and we see no infirmity with the said conclusion in view of the law laid down by this Court, as held earlier. We, therefore, are not persuaded to accept the first submission of Mr. Mishra. learned senior counsel appearing for the accused-appellants." 13. Now in the light of the aforesaid principle which has been laid down by Supreme Court, it is to be seen whether the evidence adduced on behalf of prosecution is cogent and reliable and can be considered trustworthy in absence of a satisfactory explanation for the injuries which were found on the person of appellant Ram Sakal Singh and which, according to medical evidence, appear to have been inflicted at the same time which is the time of occurrence of this case. 14. As discussed earlier. there are five witnesses who have claimed themselves to be the eye-witnesses to the occurrence. Out of them PW 5 is the informant. PW 1 has admitted that there was civil and criminal litigation between him and Ram Sakal Singh and informant had deposed from his side. PW 2 is father of PW 1. PW 2, as stated above, is own nephew of informant and both the deceased person. He and PW 4 both admitted that they were produced from jail for deposing in this case and they were at that time in jail custody in connection with a kidnapping case. PW 2 is father of PW 1. PW 2, as stated above, is own nephew of informant and both the deceased person. He and PW 4 both admitted that they were produced from jail for deposing in this case and they were at that time in jail custody in connection with a kidnapping case. According to defence Barhara Police Station Case No. 98 of 1995 was lodged by Ashok Singh against PWs 3 and 4, their father and others and police has submitted charge-sheet (Exhibit-H/1) and PW 3, in para 4 of his evidence, has admitted that PW 4 and others are also accused with him in that case. These facts clearly show that all the prosecution witnesses who have claimed themselves to be eye-witnesses to the occurrence are either related to informant or they are inimical to appellants. Mr. Lala Kailash Bihari Prasad, learned Additional Public Prosecuter, by relying upon a decision of Supreme Court reported in 2003 SCC (Cri) 1392 has argued that evidence of witnesses cannot be discarded merely on the ground that they are inimical to accused persons and in such type of cases, only requirement is that their evidence should be scrutinized with caution and if it is supported by other materials, their evidence can be relied upon. 15. As discussed above, informant and PWs 1 to 4 have claimed themselves to be eye-witnesses. They all have said that at the time of occurrence, they were at the place of occurrence and they have given a vivid description of the occurrence stating that at the instigation of appellant Ram Sakal Singh, appellant Suresh Singh fired from his double barrel gun hitting on the back of deceased Ramakant Singh, appellant Sanjay Singh fired from his double barrel gun hitting on the palm of left hand of Narbdeshwar Singh and, thereafter, on further instigation of appellant Ram Sakal Singh, Ramesh Singh fired from his double barrel gun hitting on the neck of Ramakant Singh and Sanjay Singh fired hitting on the abdomen of Narbdeshwar Singh and appellant Arvind Singh fired from his pipe gun hitting on the panjra of Awadh Bihari Singh and appellant Prabhans Singh fired hitting on the right side of face of Narbdeshwar Singh. Attention of all these witnesses was drawn whether they had stated before the Investigation Officer the facts which they stated in their evidence to which they replied in affirmative but then Ram Naresh Singh (PW 7), who is the Investigating Officer of this case, in para 27 of his evidence, has stated that PW 1 had not stated before him which appellant was carrying gun or which appellant was carrying pipe gun. He had also not stated before him that appellant Suresh inflicted firearm injury on the back of deceased Ramakant Singh and appellant Sanjay had inflicted firearm injury on the palm of, deceased Narbdeshwar Singh and appellant Arvind inflicted firearm injury on the panjra of awadh bihari Singh. He has also said that these witness had not stated before him that appellant Ram Sakal Singh gave further instigation to appellants for killing the injured person. He has said that this witness had stated before him that it was appellant Prabhans who had inflicted injury on the temple of deceased of Ramakant. About PW 2 Awadh Bihari Singh, he. in para 28 of his evidence, has stated that appellant Suresh Singh had fired from his gun causing injury to Ramakant who fell down and then appellant Suresh Singh again fired hitting on the temple of Ramakant Singh, He has clearly stated that Awadh Bihari Singh (PW 2) had not stated before him that appellant Ramesh Singh had fired on the temple of Ramakant. He has further said that this witness had not stated that appellant Kamlesh fired from his gun on Narbdeshwar and had also not stated that on hulla, a number of persons came to place of occurrence and had also not stated that Narbdeshwar died while he was being taken to hospital. He has also added that this witness has stated before him that other persons had also fired from their guns and pistols but he could not see who fired on whom. He has also added that this witness has stated before him that other persons had also fired from their guns and pistols but he could not see who fired on whom. About witness Rajendra Singh (PW 3), the Investigating Officer, in para 29 of his evidence, has stated that this witness had not stated before him that appellants Suresh, Ramesh, Kamlesh and Sanjay were armed with double barrel guns and appellant Prabhans and Arvind were armed with pipe guns and this witness had also not stated that appellant Sanjay inflicted firearm injury on the left palm of Narbdeshwar and appellant Arvind had inflicted firearm injury on the left panjra of Awadh Bihari Singh. He has further stated that this witness had not stated that appellant Ram Sakal Singh had given further instigation saying that injured were still alive and if left alive they would make statement before police and had also not stated before him that appellant Ramesh fired hitting on temple of Ramakant and appellant Prabhans inflicted firearm injures on right side of face of Narbdeshwar. On trie contrary, he has said that this witness had stated that witness Prabhans Singh had fired from his gun hitting on the temple of deceased Ramakant as a result of which Ramakant died. About witness Anil Singh (PW 4), he, in para 30 of his evidence, has said that this witness had not stated before him that appellants Ramesh, Suresh, Kamlesh and Sanjay were armed with double barrel guns and appellants Prabhans and Arvind were armed with pipe guns and appellant Prabhu was armed with bhujali and had not stated that when deceased Ramakant was returning after attending call of nature, appellant Ram Sakal Singh instigated other appellants to kill him. He has further said that this witness had not stated before him that appellant Suresh inflicted firearm injury on the back of deceased Ramakant, Sanjay inflicted firearm injury on the left palm of Narbdesh-war and appellant Arvind inflicted firearm injury to Awadh Bihari Singh when he went to rescue both the deceased. He has further said that this witness had not stated before him that appellant Suresh inflicted firearm injury on the back of deceased Ramakant, Sanjay inflicted firearm injury on the left palm of Narbdesh-war and appellant Arvind inflicted firearm injury to Awadh Bihari Singh when he went to rescue both the deceased. Again, he has stated that this witness had not stated that appellant Ram Sakal Singh again instigated his companions saying that injured were still alive and if left alive, they would deposed before police and then appellant Sanjay fired hitting on temple of Ramakant, appellant Kamlesh inflicted firearm injuries on the abdomen of Narbdeshwar and appellant Prabhans Singh inflicted firearm injury on the right side of face of Narbdeshwar. About informant, he has said that he had stated before him that appellant Prabhans had inflicted firearm injury to deceased Ramakant. 16. From the evidence of Investigating Officer, I find that out of PWs 1 to 4, who are said to be eye-witnesses to the occurrence, none of them had given the statement during investigation before Investigating Officer describing the particular acts committed by appellants as they have stated in their evidence during trial. Out of these four witnesses, two are related to informant and remaining two are inimical to appellants. For this reason, their evidence requires great scrutiny. Their evidence given in the Court by which they have described the individual acts of appellants committed during occurrence does not inspire confidence because during investigation, they had not given such statements which has been confirmed by the evidence of Investigation Officer. Under these circumstances, conviction of appellants cannot be based on their such type of evidence. Mr. Lala Kailash Bihari Prasad has argued that in this case, two persons were killed and presence of appellants at the place of occurrence on the alleged day and time is admitted because it is the own case of appellants that it was prosecution part who at the same time brutally assaulted appellant Ram Sakal Singh. No doubt it is the case of defence that appellant Ram Sakal Singh was assaulted but then so far other appellants are concerned, defence has not admitted that they were also present at the place of occurrence on the alleged day and time. Mr. No doubt it is the case of defence that appellant Ram Sakal Singh was assaulted but then so far other appellants are concerned, defence has not admitted that they were also present at the place of occurrence on the alleged day and time. Mr. Lala Kailash Bihari Prasad has further argued that if there is contradiction in the evidence of prosecution witnesses on the point of actual assailants of the deceased even then this Court, by taking aid of Section 149 of IPC, can convict the appellants in view of the fact that two persons were murdered and the occurrence was the result of common object of all the appellants. I fail to accept this argument because for making the appellants liable for the murder of both the deceased, prosecution has to prove that there was an unlawful assembly and in prosecution of the common object of that assembly, a member or some members of that assembly committed the murder. When the evidence of those witnesses, who have been produced by prosecution as eyewitnesses to the occurrence. stands contradicted by their early statements made during investigation, no reliance can be placed on their evidence given in Court and that cannot form the basis of conviction of appellants. This Court cannot make out a third case. The prosecution has to prove its case beyond all reasonable doubts as per the allegation and if it fails in proving its case, it cannot come up with a plea that the Court must hold that because two persons were put to death, the appellants must have committed the murder and they are guilty. 17. Considering the entire evidence on record, I find that the prosecution has not been able to prove its case beyond all reasonable doubts. In the result, both the appeals are allowed. The judgment and order of Court below convicting and sentencing the appellants is hereby set aside and appellants are acquitted. 18. Since appellants Suresh Singh, Ramesh Singh and Kamlesh Singh are in jail custody, issue release order for their release, if they are not required in any other case. 19. Appellants Sanjay Singh. Ram Sakal Singh, Prabhu Singh, Arvind Singh and Prabhans Singh, who are on bail, are discharged from their liabilities of bail bonds. SADANAND MUKHERJEE, J. 20 I agree.