Judgment Shiva Kirti Singh and Subash Chandra Jha JJ. 1. Cr. Appeal No. 361 of 2002 filed by Jiten Kamker, Ram Parsan Koiri, Sheo Parsan Koiri and Cr. Appeal No. 396 of 2002 filed by Shambhu Chamar, Guput Kamker @ Gupta Kamker and Tulsi Chamar have been taken up together as all of them have been convicted by the judgment and order dated 4.6.2002 in Sessions Trial No. 32 of 1989 arising out of Itarhi PS Case No. 91 of 1988 whereby and whereunder, Shambhu Chamar, Guput Kamker & Tulsi Chamar have been held guilty and convicted for offence punishable under Sections 302 and 148 of the IPC and 27 of the Arms Act. Appellants, Jiten Kamker, Ram Parsan Koiri & Sheo Parsan Koiri have also been held guilty and convicted for offence punishable under Section 302/149 and 148 of the IPC as also under Sec.27 of the Arms Act. They have been sentenced to undergo Rl for life for offence relating to Sec.302 of the IPC, two years Rl for Sec.27 of the Arms Act and and one year Rl for offence under Sec.148 IPC respectively. 2. Fardbeyan (Exhibit-2) of the informant, Radha Prasad Mishra (PW-3) is the basis on which formal FIR (Exhibit-3) was drawn up. As per Fardbeyan recorded on 22.8.1988 at 7:15 A.M. at Itarhi Police Station, on 21.8.1988 at about 1600 hours some altercation had taken place between Shahsi Bhushan Mishra (deceased), brother of the informant) and Kulkant Chamar and Shambhu Chamar in respect of irrigation of their field. The matter was intervened by the informant and as such pacified but aforesaid accused persons had left the place with extension of threat of dire consequences. On the same night, the informant, (PW-3) his brother, Shashi Bhushan Mishra and another brother Ran Bijay Mishra (PW-1) had left for their field situated near village, Chandudehra at Canal bridge. The informant and his brother, Ran Vijay were at some distance from the aforesaid canal bridge and their brother Shahsi Bhushan Mishra was at the bridge. At about 12 night, in the moonlight, they noticed the arrival of Kulkant Chamar armed with rifle, Shambhu armed with rifle, Tulsi Chamar armed with gun, Gupta Kamker armed with rifle, Jiten Kamker armed with rifle, Ram Parsan Koiri armed with rifle, Sheo Parsan armed with rifle. At about 12 night, in the moonlight, they noticed the arrival of Kulkant Chamar armed with rifle, Shambhu armed with rifle, Tulsi Chamar armed with gun, Gupta Kamker armed with rifle, Jiten Kamker armed with rifle, Ram Parsan Koiri armed with rifle, Sheo Parsan armed with rifle. Just on their arrival near Shashi Bhushan Mishra, Kulkant Chamar is alleged to have ordered to kill him. Accused, Shambhu Chamar, fired a shot from his rifle hitting on the right shoulder of Shahsi Bhushan Mishra, similarly, Gupta Kamker shot from his rifle causing injury on left chest. Another accused, Tulsi Chamar also fired from his gun causing injury on right armpit and Shahsi Bhushan Mishra died at the spot. The informant and his brother Ran Bijay Mishra raised alarm but they were also attacked and as such in order to save their lives, they managed their escape raising alarm. On seeing arrival of villagers, the accused persons went towards their village, Chandudehra. Accused persons are alleged to have been identified by the villagers, who arrived at the place of occurrence at the relevant time and who also went near the dead body and found Shashi Bhushan Mishra lying in pool of blood and dead. The case was investigated by the police against all the seven but accused Kulkant Chamar, against whom there is specific allegation of having entered into altercation with the deceased and informant, was exonerated by the police in course of investigation on the basis that he was lodged inside Balia Jail in some other case on the date of occurrence and was released from jail after remaining in custody for about a month. 3. Cognizance under Sec.302 and other ancillary offences of the IPC as also under Sec.27 of the Arms Act was taken and charges were framed against all the six accused under Sec.148 IPC and Section 27 of the Arms Act; under Sec.302 IPC against Shambhu Chamar, Gupta Kamker, Tulsi Chamar and under Sec.302/149 IPC against Jitan Kamker, Ram Parsan Koiri & Sheo arsan Koiri to which they pleaded not guilty. 4. Accused/appellants were also explained circumstances appearing against them in course of their examination under Section 313 of the Cr.P.C. They denied their involvement in the offence alleged. 5. In course of trial, in all eight prosecution witnesses, have been examined on behalf of the prosecution to support the prosecution case. 4. Accused/appellants were also explained circumstances appearing against them in course of their examination under Section 313 of the Cr.P.C. They denied their involvement in the offence alleged. 5. In course of trial, in all eight prosecution witnesses, have been examined on behalf of the prosecution to support the prosecution case. PW-1, Ram Ran Vijay Prasad Mishra and PW-3, Radha Prasad Mishra, who is informant, are the witnesses, who claim to have been present at the time, when shooting on their brother, Shashi Bhushan Mishra (deceased) took place in the midnight, at the place of occurrence. 6. PW-2, Rishi Kant Pathak, a Cultivator of the said village is a witness of inquest. PW-4, Anil Kumar Sinha is thel.O. PW-5, Bishwanath Mishra and PW-6, Ramayan Mishra did not support the prosecution version for which they were declared hostile and cross-examined on behalf of the State but nothing tangible seems to have come from their mouth to support prosecution version. PW-7, Badrivishal Mishra, another brother of the informant has been tendered for cross- examination, so there is no gain to the prosecution case from his evidence. PW-8 is Dr. Parmanand, who held autopsy on the dead body of the deceased. Documents which have been led into evidence on behalf of the prosecution are Inquest Report (Exhibit-1), Fardbeyan (Exhibit-2), Formal FIR (Exhibit-3 and Postmortem Report (Exhibit-4). 7. The learned counsel for the appellants has submitted that whole prosecution story should be disbelieved in the background of the fact that genesis of the occurrence i.e. altercation having taken place earlier between Kulkant Chamar on the one hand and informant and his brothers, on the other hand, has not been proved beyond reasonable doubt for the reason that Kulkant Chamar on thorough probe into the matter made by the I.O., has been found to be lodged in Balia Jail from 12.8.1988 and is said to have come out from the jail much after the occurrence. Even then the prosecution side did not bother or muster courage to file petition for trial of Kulkant Chamar, when such opportunity was available to them by filing such petition at the investigation stage as also at the trial stage as provided under Sec.319 of the Cr.P.C; perhaps for the simple reason, as contended by the learned counsel for the appellants, that they were very much apprehensive of being exposed regarding genuineness and veracity of the prosecution story itself and for that, the prosecution side did not question the plea of alibi of Kulkant Chamar. The moment presence of Kulkant Chamar is doubted the whole story of the prosecution has to be seen with suspicious eyes. 8. Secondly it was argued that the manner of occurrence in the broad probabilities and circumstances also raises strong suspicion for the reason that in the month of Shravan i.e. is full fledged rainy season, question of any dispute regarding irrigation of field cannot be a matter of concern for any party, when there is abundance of water flowing through channels and tributaries of the canal and the paddy fields are generally flooded with sufficient water. Thirdly, when, as per prosecution story that field of the informant were irrigated for long 8 to 10 hours in the day and accused appellants are said to have left by extending threat, there was least possiblity of deceased and his two brothers of going for the purpose of irrigating their field in the midnight without aid of any servant, labourers or equipments for that purpose. Fourthly, it was argued that the story as stated by the prosecution regarding presence of two brothers of the deceased i.e. the informant (PW-3) and PW-1, at a reasonably close distance from their deceased brother when accused/appellants all seven in numbers, variously armed with sophisticated fire arms, rifles and guns etc. came and shot dead the deceased, Shashi Bhushan Mishra within no time but causing no harm to his two brothers, the witness is highly doubtful and improbable. Had they really been present at a close distance to witness the occurrence at midnight, there was no obstruction at the relevant time, to finish them also and the informant or his brother could not have managed their successful escape from the P.O. without any injuries. 9. Had they really been present at a close distance to witness the occurrence at midnight, there was no obstruction at the relevant time, to finish them also and the informant or his brother could not have managed their successful escape from the P.O. without any injuries. 9. In course of the argument it has further been contended that the night of occurrence was the 9th day of bright fortnight according to Panchang of the relevant year 1988, and in that situation computing from the time of sunset, there could hardly be sufficient moonlight till 12 in the night. Moreover in the month of Shravan there is every possibility of frequent and random movement of thick layers of cloud in the open sky which would also adversely affect visibility of any person witnessing the occurrence at an hour of fading moonlight from a reasonable distance. It has also been argued that there was no sense and occasion for the informant and his brother to have remained present at a distance of about 10-12 cubits from the place of occurrence, when their field for the purpose of irrigation was situated at a distance of 350 yards from po and if they were actually in their field, then nobody could have seen anything from such a distance. 10. It is admitted case of the prosecution that there was no means of light nor the informant or his brother were having any kind of torch or other source of light and the entire occurrence has been claimed to have been seen by them with aid of moonlight from a distance of 10-12 cubits when their field was at a distance of about 350 yards, without sustaining any injuries. 11. The learned counsel for the appellants has further submitted that appellants belong to a poor strata of society and they are not associated with any extremist or Naxal outfits and they were not in a position to utilize the services of experienced and good lawyers in the trial court. Therefore all such lapses of prosecution story could not be highlighted and argued before the trial court but for that, the interest of justice should not suffer. Therefore all such lapses of prosecution story could not be highlighted and argued before the trial court but for that, the interest of justice should not suffer. He has also highlighted the contradiction between the oral evidence and the medical evidence and for that he has referred to the postmortem report (Exhibit-4) to show that as a matter of fact, one injury of entrance and one injury of exit have been claimed by the witnesses as two injuries inflicted on the person of the deceased by means of two rifle-shots besides one shot by gun. 12. It is found that there is no explanation offered by prosecution for removal of the dead body, when it has already come on the record that Shahsi Bhushan Mishra died at the spot. Had he been alive at the place of occurrence there could have been some reason for shifting him from PO for the purpose of treatment but so is not the case here. It is also found that save and except the two brothers of the deceased, who had no reason or occasion to have gone to the P.O. at midnight specially when they had allegedly received threat at the hands of the appellant Shambhu Chamar and Kulkant Chamar in the same evening, without any arms or any aid of manpower or equipment to effect irrigation of their field. In such situation, the submission that there is possiblity of killing of the deceased, Shashi Bhushan Mishra by unknown criminals and later implication of these accused appellants appears reasonable. No explanation for non examination of independent witnesses of the village, who are said to have arrived at place of occurrence has been given when the informant has stated in clear words that on their nulla the villagers numbering about 50 to 100 arrived there. At least some of them could have been produced, if they had seen the dead body just after occurrence was over and if they heard the informant and his brother naming these accused appellants at the place of occurrence. Even the witnesses cited in the chargesheet have turned hosWe and nothing has come from their mouth to support the prosecution case. 13. Injuries on the person of dead body as per Postmortem Report (Exhibit-4) runs as follows:- I. Wound of injury entrance, Size 1 1/2" x 1/2" bone deep (thoracic cavity deep) loteral to the left nipple margin lacerated. Even the witnesses cited in the chargesheet have turned hosWe and nothing has come from their mouth to support the prosecution case. 13. Injuries on the person of dead body as per Postmortem Report (Exhibit-4) runs as follows:- I. Wound of injury entrance, Size 1 1/2" x 1/2" bone deep (thoracic cavity deep) loteral to the left nipple margin lacerated. II. Wound of entrance 1" x 2/3" near the right shoulder joint bone deep. III. Wound of exit 2" x 1" just opposite the entrance of the posterior aspect of the right shoulder joint. IV. Pea size hole oozing on the lateral chest six abrasions caused by above wounds. The injury no. 1 relating to thoracic cavity had been caused by gun shot whereas injury no.2 and 3 are clearly by one rifle shot. Medical evidence is, thus not in consonance with the oral evidence. 14 In the facts and circumstances stated above it could be summed up that visibility from reasonable distance in the midnight, only on the basis of existence of moonlight that too while in the diminishing order, makes the prosecution case highly improbable. In addition to that, presence of informant and his brother without any aid of manpower or equipment in the form of spade etc. For the purpose of irrigating their field also makes it doubtful, when it has been claimed by the prosecution side that they own 40 Bighas of irrigated land in one chunk by the side of canal. By usual standards persons having such chunk of land in the concerned area situated by the side of canal are supposed to be men of status, means and influence and ordinarily they are not supposed to go alone for the purpose of irrigation, all by themselves. 40 Bigahs of land in one chunk has some meaning and status and its owners are not supposed to work as labourers for the purpose of watering their land in the manner as claimed in the prosecution case. That too creates doubt regarding the presence of informant and his brother at the P.O. and for that reason also the arguments of the learned counsel for the appellant, appear to be reasonable and probable. That too creates doubt regarding the presence of informant and his brother at the P.O. and for that reason also the arguments of the learned counsel for the appellant, appear to be reasonable and probable. Moreso, the factum of their presence the manner of occurrence and the participation of accused at the place of occurrence has not been supported by any independent witnesses of the village of the informant or of any surrounding village including that of the accused/appellants. 15. So, regard being had to the aforesaid submissions advanced on behalf of the appellants by learned counsel and considering ail that improbabilities, connected circumstances and evidence of highly interested persons, not supported by any independent person of the village of informant or the appellant or even of any neighbouring village, We are persuaded to hold that prosecution case suffers from improbabilities and it has not been proved beyond reasonable doubts. Hence, the conviction and sentence awarded by the learned trial court cannot be upheld. 16. In the result the impugned judgment and order of the learned trial court are set aside. The appellants in both the appeals are acquitted of all the charges. Both the appeals stand allowed. 17. The accused appellant, Guput Kamker @ Gupta Kamker who is said to be in custody is directed to be set at liberty forthwith if otherwise not required to be kept in custody in any other case. Remaining appellants who are on bail are also directed to be discharged from the liabilities of their respective bail bonds.