Judgment Shiva Kirti Singh and Dharnidhar Jha JJ. 1. All the three appeals arise out of same judgment and order dated 6/9.07.2002 passed in Sessions Trial No. 72/2000/21/2001 by learned 3rd, Additional Sessions Judge, Sitamarhi. By the said impugned judgment all the 7 appellants have been convicted for the offence u/s. 302 read with Section 149 of the Indian Penal Code and awarded life imprisonment and also a fine of Rs. 5,000.00 each and in default rigorous imprisonment for two years. They have also been convicted for the offence u/s. 27 of the Arms Act and awarded rigorous imprisonment for three years and a fine of Rs. 1,000.00 each and in default rigorous imprisonment for six months. The sentences have been ordered to run concurrently. 2. The prosecution case is based upon Fardbeyan of P.W. 8, Nagia Devi, wife of deceased Chandradeo Sahni. In short, it is to the effect that in the night of 29.8.99 and 30.8.99 while the deceased was sleeping on a separate Chauki in his Baithka in village Badhu Chapra, P.S. Bairgania, District Sitamarhi and the informant was sleeping on a separate cot nearby, at about 12.30 the informant heard some sound and got up and saw 7 named accused persons variously armed with gun and pistol. Immediately on their arrival they started firing indiscriminately on her husbands face. The first shot was fired by appellant Saryug Sahni followed by all others. The informant claimed to have seen the occurrence while sitting on her bed in the light of a lantern. After firing 12 to 14 shots within 4-5 minutes and having killed her husband the miscreants fled away. She raised hulla. At the time of fleeing away Saryug Paswan made some utterances to the effect that their work was finished. The informant claimed that when the miscreants had gone on the Ring Bundh towards east at that very time her son Dharmendra Sahni (P.W. 2) arrived on hulla and saw and identified the miscreants. Further Shankar Sahni, Yugal Sahni, Indradeo Sahni, Dhanpat Sahni and several other persons of the village came and saw the miscreants running away. The informant claimed that when the miscreants had gone on the Ring Bundh towards east at that very time her son Dharmendra Sahni (P.W. 2) arrived on hulla and saw and identified the miscreants. Further Shankar Sahni, Yugal Sahni, Indradeo Sahni, Dhanpat Sahni and several other persons of the village came and saw the miscreants running away. She further disclosed that in the morning of 30.8.99 she came to know that on the bank of Bakeya river blood-stains and some materials have been found and on that basis she suspected that her son Achchaya Lal Sahni who had gone with Rup Narain Sahni, Rudal Sahni, Asrafi Das, Ram Naresh Sahni and Saryug Sahni may have been killed and his dead body might have been thrown in the river. She alleged that her husband and son may have been murdered on account of a dispute over land purchased by her husband from one Sheikh Wasirulla which was earlier in forceful possession of Saryug Sahani but later her husband constructed a Baithka after purchasing the same. 3. Further prosecution case is that before recording the aforesaid Fardbeyan of the informant on 30.8.99 at 11.15 A.M. at the place of occurrence, the investigation was conducted by P.W. 10, the Officer-in-Charge of Bairgania Police Station, Anand Kumar Verma and he had first prepared the inquest report of the dead body then recorded the fardbeyan because the informant at the relevant time was crying. After investigating the place of occurrence and seizing certain articles during the course of investigation such as parts of human body (bones) from the side of river, police submitted charge sheet. After taking cognizance of the offence, the case was committed to the Court of Sessions. The appellants pleaded not guilty to the charges and were put on trial leading to their conviction as noticed above. 4. The defence of the accused persons as appearing from the deposition of Defence witnesses (altogether eight in number), trend of cross-examination and arguments is of false implication on account of previous enmity admitted by the informant (P.W. 8) and on suspicion because according to the defence the deceased was killed by unknown persons while sleeping in his Baithka and nobody had seen the actual assault. 5. The prosecution in order to prove its case has examined altogether 12 witnesses. 5. The prosecution in order to prove its case has examined altogether 12 witnesses. P.W. 1, Prabhu Prasad Verma is a formal witness who has proved the signature on seizure of four empties and a mosquito net. P.W. 2, Dharmendra Sahni is one of the sons of the deceased who claims to have reached the place of occurrence on hearing hulla and claims to have seen and identified the accused persons while they were fleeing away. He claims to have identified the accused persons in moon-light and in the light of lantern. P.W.3, Jado Lal Sahni is another son of the deceased who has also made similar claims as P.W.2. P.W.4, Durga Devi is a daughter-in-law of the informant and deceased. She has also claimed to have reached the place of occurrence on hulla along with P.W. 2 and others and to have seen the accused persons fleeing away. She has apparently named only Saryug Sahni but has named others on the basis of disclosure made by the informant. P.W. 5, Laskhminia Devi is another daughter-in-law of the informant and deceased. She has made similar claims as P.W. 4 but during further cross-examination after amendment of charge she gave a different kind of statement regarding disappearance of her husband Achchaya Lal Sahni by stating that her husband had left the house on pervious day and did not return in the night. On such statement she was declared hostile by the prosecution. P.W. 6, Ramchandra Sahni is a formal witness of seizure of empties etc. P.W. 7, Chandrika Sahni is also a formal witness who had signed on inquest report (Ext. 2). As noticed earlier P.W.8, Nagia Devi is the widow of the deceased and informant of this case. P.W.9, Tildhari Sahni is a formal witness of inquest. P.W. 10, Anand Kumar Verma, as noticed earlier is the Investigating Officer. P.W. 11 Dr. Shashi Bhushan Singh conducted autopsy on the dead body of the deceased and has proved the post-mortem report as Ext.7. The post-mortem report shows that the deceased had sustained two wounds of entry having charred margins and two corresponding wounds of exit caused by fire arm shots and there were some tatoo marks over his body. In the opinion of the doctor the death was result of the injuries caused by fire arms. P.W. 12, Dr. The post-mortem report shows that the deceased had sustained two wounds of entry having charred margins and two corresponding wounds of exit caused by fire arm shots and there were some tatoo marks over his body. In the opinion of the doctor the death was result of the injuries caused by fire arms. P.W. 12, Dr. Binod Kumar Mehta who is a tutor in forensic medicine, has proved his report in respect of some human parts (bones) said to be of the body of Achchaya Lal as Ext.6. 6. On behalf of appellants of Cri.Appeal Nos. 502 and 582 of 2002 submission was advanced that only material witnesses in this case to prove the identification of the accused persons are P.W. 2, Dharmendra Sahni and P.W. 8, Nagia Devi because other witnesses are either formal or are family members of the informant and the deceased whose presence at the P.O. even after the occurrence is not supported by the fardbeyan The same submission has also been advanced by learned counsel appearing on behalf of appellants of Cri.Appeal No. 519 of 2002. It has further been submitted that the defence has also examined eight witnesses including Chaukidar, Gagandeo Paswan who, according to the Investigating Officer came to the Police Station and gave initial intimation to the police, to show that till late in the morning even when the I.O. had reached the place of occurrence and started inquest, the version of the occurrence was not forthcoming and names of the accused persons had not been disclosed to the D.Ws. who are co-villagers or to the Chaukidar who went to the Police Station after visiting the place of occurrence. By way of elaboration it was submitted that the claim of identification made by P.Ws. 2 and 8 should also not be accepted because of aforesaid un-natural conduct of not disclosing the names of the assailants. P.W. 3, Jadolal Sahni as per his statement before the I.O., reached by train from another place and on getting information about the occurrence he came to the place of occurrence. 2 and 8 should also not be accepted because of aforesaid un-natural conduct of not disclosing the names of the assailants. P.W. 3, Jadolal Sahni as per his statement before the I.O., reached by train from another place and on getting information about the occurrence he came to the place of occurrence. It was further submitted that the claim of the informant, P.W. 8 that she was sleeping in the Baithka and therefore saw the occurrence is not free from doubt because allegedly she raised hulla, named the accused persons but she was neither threatened nor chased nor injured when allegedly all the seven accused were armed with fire arms. It was further submitted that her claim of having seen the occurrence stands contradicted by the medical evidence because if, as alleged, indiscriminate firing had been made by the seven accused persons on the deceased who was lying asleep on a Chauki the doctor would not have found only two injuries of entrance of fire shots from close range. According to the defence, it was non-availability of any witness at the place of occurrence which was the cause for nondisclosure of names of the assailants and delay in lodging of fardbeyan even after the I.O. had arrived and had started investigation and prepared inquest report. 7. On a careful scrutiny of evidence of P.W.2, Dharmendra Kumar Sahni it is found that his claim that he saw the accused persons standing near the Baithka was challenged by the defence by drawing his attention to his earlier statement before the police and the I.O. in paragraph-51 of his deposition has confirmed that P.W. 2 had claimed before him to have seen the accused persons only while they were fleeing and had not claimed to have seen the accused persons near door of the Baithka with fire arms. Hence we find substance in the submission advanced on behalf of the appellants that claim of identification made by P.W. 2 cannot be accepted as truthful and reliable because he is an interested witness who has made vital departure in his deposition in Court from his statement before the police. It is doubtful that miscreants could be identified by P.W. 2 in absence of any torch etc. while they were fleeing away and the witness had to come from more than 50 yards after hearing hulla. 8. It is doubtful that miscreants could be identified by P.W. 2 in absence of any torch etc. while they were fleeing away and the witness had to come from more than 50 yards after hearing hulla. 8. So far as claim of identification by the informant, P.W. 8 is concerned, we find that the materials on record show that the deceased and the informant had a big house at a distance of 15 to 100 yards from the Baithka where the occurrence took place. The house had 8 rooms whereas the Baithka was apparently a place where flour mill was being run and had no door planks. Although the I.O. claims that he saw acot also kept in the Baithka but he had not noticed any bedding or mosquito net on that cot whereas such things were present on the Chauki over which the deceased was lying at the time of occurrence. These facts coupled with the fact that informant was neither threatened nor injured nor she claims to have intervened while the shooting started on her sleeping husband and the delay in discloser of names of the accused creates sufficient doubt regarding claim of the informant that she was present at the place of occurrence when the occurrence took place. 9. Even some other circumstances such as absence of any explanation for non-examination of the four co-villagers named in the fardbeyan who are said to have arrived on hulla, non-disclosure of names of the assailants to the Chaukidar or to any co-villager and delay in giving information to the police and recording of the fardbeyan which was actually done after 11 hours of the occurrence create reasonable doubt regarding truthfulness of the prosecution case. As submitted on behalf of the appellants the other witnesses besides P.Ws. 2 and 8 are not mentioned in F.I.R. and not material for the purposes of identification of miscreants. 10. Although differences over land of Baithka has been alleged to be the motive for the occurrence but there is no convincing material to support the same. On the other hand it has come in evidence of P.Ws. that the deceased had been to jail in connection with cases of dacoity clearly. He had other enemies. 11. 10. Although differences over land of Baithka has been alleged to be the motive for the occurrence but there is no convincing material to support the same. On the other hand it has come in evidence of P.Ws. that the deceased had been to jail in connection with cases of dacoity clearly. He had other enemies. 11. On a proper consideration of the relevant facts and circumstances we find that on account of non-examination of independent witnesses from the village and other facts and circumstances discussed above the prosecution has failed to prove the charges against 7 appellants beyond reasonable doubts. Hence all the three appeals are allowed and the appellants are acquitted of all the charges. It appears that all the appellants except appellant Ram Naresh Sahni of Cri.Appeal No. 582/2002 are on bail. They are discharged from the liabilities of their bail bonds. So far as appellant no.2, Ram Naresh Sahni of Cri.Appeal No. 582/2002 is concerned, he should be released from jail custody forthwith if not required in any other case.