JUDGMENT Amareshwar sahay and D.P.Singh JJ. 1. All the appellants on being, tried, have been found and held guilty for the offence under Section 302/34 of the Indian Penal Code, and Section 27 of (sic) Arms Act by common judgment dated 28.9.2001 and 3.10.2001 respectively passed (sic) the 1st Additional Sessions Judge, Bokaro in Sessions Trial No. 111 of 1998 (sic) sentenced to undergo rigorous imprisonment for life each on both counts. As all (sic) appeals arise out of the same judgment, they have been heard together and are (sic) disposed of by this common judgment. 2. The actual matrix leading to these appeals are that in the night (sic) 23.3.3.1997, informant Ajay Singh, was sleeping inside his house and woke up (sic) sound of firing of bullet. As further stated, he came out of the room to see all (sic) appellants along with Niranjan Singh fleeing from the verandah of his Ration (sic) carrying pistol towards north east. As further alleged, he found that his servant (sic) Pintu Karmkar was lying dead in a pool of bloods on the Chowki. He further four (sic) that the deceased has got a bullet injury in the side of his head. Further state (sic) Mohalla people assembled and they started chasing the appellants. According to the unformant, appellant Pappu Choudhary fired upon the chasing persons and threatened if any one comes near, he will also be killed. 3. In the meantime, the I.O. of the case arrived at the place of occurrence and participated in the chase, while appellants including Niranjan Singh could manage to flee, appellant Pappu Choudhary was arrested by the Mohalla people ultimately from he house of Gama Singh. According to the informant, appellant Pappu Choudhary was handed over to the police inspector where he admitted before all of them that he has committed the offence. The reason behind this occurrence is said to be some scuffle taking place on 1.8.1997 between the brother of the informant and three other co-accused persons for teasing the female inmates of his house. 4. The police accordingly recorded the statements of the informant at 00.30 hours and registered Marafari Police Station Case No. 95 of 1997 dated 24.8.1997 under Sections 302/34 of the India Penal Code and Section 27 Arms Act. 4. The police accordingly recorded the statements of the informant at 00.30 hours and registered Marafari Police Station Case No. 95 of 1997 dated 24.8.1997 under Sections 302/34 of the India Penal Code and Section 27 Arms Act. The Investigating Officer (P.W.11) prepared the inquest report, examined other witnesses and stated investigation to finally submit charge sheet against all the four accused under Section 302/34 of the Indian Penal Code and Section 27 of the Arms Act. The case of the appellants were committed to the Court of Sessions for trial where they were charged as mentioned above on 3.8.1998. The appellants pleaded not guilty and claimed false prosecution. However, the learned, trial court found and held all of them guilty under Section 302/34 of the Indian Penal Code and Section 27 of the Arms Act. 5. These appeals have been preferred mainly on the grounds that the learned trial court has not considered the improbability of the prosecution case. It is also asserted that only witnesses supporting the prosecution case P.W.1 any P.W.2 were employed with P.W.7 and they were likely to state as tutored by the informant. It is also asserted that the independent witnesses, P.W.4, P.W.5, P.W.8, P.W. 9 and P.W. 10 have not supported the prosecution case as P.W. 4 and P.W.5 were declared hostile while P.W.8, P.W.9 and P.W.10 claimed ignorance about the prosecution facts. However, the learned trial court having relied upon the evidence of P.W.1, P.W.2, P.W.6 and P.W.7 has found and held the appellants guilty. It is also asserted that the presence of P.W.1 and P.W.2 near the deceased on the fateful night is doubtful because the informant has not named them as persons sleeping nearby on the same verandah. The learned Counsel for appellants Sanjay Prasad and Birendra Kumar submitted that even if the prosecution case was accepted participation of these appellants have not been alleged during the commission of the murder. Learned Counsel further pointed out that there was no motive for the murder of the deceased. Learned Counsel for appellant Pappu Choudhary submitted that no incriminating article has been recovered from his possession nor any of the Mohalla people have come to support that he was arrested just after the occurance from the house of P.W. 10 Gama Singh. Learned Counsels further suggested that there was no light available for identification of the appellant. Learned Counsel for appellant Pappu Choudhary submitted that no incriminating article has been recovered from his possession nor any of the Mohalla people have come to support that he was arrested just after the occurance from the house of P.W. 10 Gama Singh. Learned Counsels further suggested that there was no light available for identification of the appellant. Therefore, appellant Pappu Choudhary, who has remained in custody for nearly ten years may be acquitted of the charges. 6. We have anxiously considered the submissions made on behalf of the appellants. The informant has admitted that he has not seen appellant Pappu Choudhary firing upon the deceased. However, he comes out of his house immediately after hearing the sound of fire and saw all the appellant fleeing towards north east while deceased was lying dead on the Chowki in a pool of blood. P.W. 6 Madan Singh and P.W. 7 Ajay Singh, both brothers, have supported this fact P.W.1 Anil Ram and P.W. 2 Ram Shankar Ram have asserted that they were sleeping nearby and on other cot on the same verandah and saw tile appellants committing murder. Both of them are admittedly employed in the canteen run by the informant. Much stress has been put by the learned Counsel for the appellants to consider the probability of their being tutored and brought as afterthought witness. It has been submitted that the informant has not named them in the fardbeyan, as the witnesses present at the place of occurrence and these facts have not been considered by the learned trial court. The question of tutoring of these witnesses (sic) support the informant does not arise as the statements of the informant regarding the occurrence have been recorded in the night at 00.30 hours itself by the Investigating Officer. It they were not present at the place of occurrence, their statements could not have been recorded. Furthermore, it was not expected from the informant that he should know whether these two witnesses, being servant have been sleeping on that fateful night when he already retired inside his house at 10.30 P.M. Normally servant sleep as and where they find place and according to their convenience. These two witnesses have been cross-examined at length, in which they frankly admitted that they were employed by the informant. These two witnesses have been cross-examined at length, in which they frankly admitted that they were employed by the informant. It is also no probable that they being tutored should claim to be eyewitnesses of the occurrence as other Mohalla people though named in the fardbeyan and examined by the police like P.W.4, P.W.5, P.W. 8, P.W.9 and P.W. 10 have not supported the prosecution case. Therefore, the suggestion of P.W.1. and P.W.2 being tutored and afterthought is not acceptable. 7. We have carefully gone through the evidence of these two witnesses. Both of them have named the appellants being seen by them at the place of occurrence. However, they did not allege any overt act against appellant Sanjay Prasad and Birendra Kumar. They specifically named appellant Pappu Choudhary to have fired from a pistol in his hand causing death of Pintu Karamkar. During cross- examination, they have with stood the test and nothing could be brought on record to discard their statements that they saw appellant Pappu Choudhary firing upon the deceased. Both of them have further asserted that they could see the appellants and identify them in the light of searchlight of the stockyard situated nearby. P.W. 3 Dr. A.K. Choudhary conducted the postmortem examination on the dead body of Pintu Karamkar at 1.30 P.M. next day and found one wound of entry and one wound of exist of a bullet on the right side of neck below right masteroid behind pinna of the right ear opening on the left side of neck. He further mentioned that the firearm was used from close range. Therefore, the homicidal death of Pintu Karamkar caused by shot fired upon him has been proved beyond doubt. 8. P.W. 6 and P.W. 7, both brothers, have supported the fardbeyan in details. They further asserted that they saw the appellants fleeing away from the place of occurrence who used to live behind their house. Both these witnesses have been cross-examined at length, in which they gave details of the prosecution version after the shot was fired upon. Identity of the appellants has been challenged. But the identity of the appellants is not disputed as even P.W. 4 and P.W. 5 declared hostile have admitted that these appellants used to live just behind the house of the informant. Identity of the appellants has been challenged. But the identity of the appellants is not disputed as even P.W. 4 and P.W. 5 declared hostile have admitted that these appellants used to live just behind the house of the informant. These two witnesses have further asserted that three weeks earlier of this occurrence, the appellants have teased the female inmates of the house of the informant for which an altercation has taken place between the informant and the appellants. It has come from the evidence of P.W. 5 that bathroom of P.W. 10 Gama Singh was situated behind his house from where appellant Pappu Choudhary was arrested. P.W. 6 has further admitted that some persons of the vicinity have already arrived and were raisinig alarms after which they chased the appellant. He further asserted that appellant Pappu Choudhary fired upon the chasing people from 100 yards and later on recovered from the bathroom of Gama Singh. This has been supported by P.W. 7 in examination-in-chief and in cross-examination. 9. This has been supported by I.O. of this case P.W. 11 Dinanath Prasad. According to him, he was returning after investigation when he saw people assembled at the place of occurrence. He joined the chase of the appellants and appellant pappu Choudhary was produced by the mob. He recorded the statement of the informant P.W.7 and started investigating of the case. He mentioned that the dead boy was lying on the Chowki while another cot was used by P.W. 2 Ram Shankar Ram. He further mentioned that the appellants used to reside just behind the house of the informant. Certain contradictions were admitted by him in the statement of P.Ws. 1, 2, 6 and 7 regarding the manner in Which P.W.1 and (sic) after the incident. The prosecution therefore depends upon the versions of (sic) eyewitnesses, P.W. 1 and P.W. 2, and immediately arriving witnesses P.W.6 and P.W. 7 at the place of occurrence. These witnesses have stated in clear words that they saw Pappu Choudhary firing upon the deceased and thereafter fleeing from the place of occurrence. Appellant Pappu Choudhary is further said to have been arrested immediately after this incident from the bathroom of P.W. 10, Gama Singh. These witnesses have stated in clear words that they saw Pappu Choudhary firing upon the deceased and thereafter fleeing from the place of occurrence. Appellant Pappu Choudhary is further said to have been arrested immediately after this incident from the bathroom of P.W. 10, Gama Singh. The defence has not controverted this fact where Pappu Choudhary was arrested by the Mohalla people and these witnesses immediately after the occurrence which further stands supported by P.W. 11 when produced before him after the occurrence by the mohalla people. 10. The prosecution witnesses, therefore, consistently named that appellant Pappu Choudhary has fired the fatal shot upon the deceased. However non of them have asserted any overt act against other two appellants Sanjay Prasad and Birendra Kumar as single shot caused death of Pintu Karmkar. The defence could not bring on record any material to discredit the consistent evidence of P.Ws. 1, 2, 6 and 7 so far the complicity of appellant Pappu Choudhary is concerned in commission of the offence. 11. Having considered the above mentioned facts and circumstances we are of the view that the prosecution in Cr. Appeal (DB) No. 491 of 2001 and Cr. Appeal (DB) No. 493 of 2001 has failed to bring charges under Section 302/34 of the Indian Penal Code and under Section 27 of the Arms Act against appellants Sanjay Prasad and Birendra Kumar. Accordingly, these appeals have got merit and are allowed. The judgment and order of conviction and sentence passed by the trial court against these appellants is hereby set aside. They are found not guilty and they are, accordingly, acquitted and discharged from the liabilities of their bail bonds. 12. However, the prosecution has been able to prove beyond doubts the charges under Section 302 of the Indian Penal Code and 27 of the Arms Act, against appellant Pappu Choudhary in Cr. Appeal (DB) No. 489 of 2001. In the result, this appeal is found devoid of merit and stands dismissed. The judgment and order of conviction and sentence passed by the trial court against this appellant (sic) affirmed.