JUDGEMENT Shyam Kishore Sharma and Rajendra Kumar Mishra JJ. 1. Cr. App No. 159 of 1989 (DB) on behalf of Ramayan Rai and his son Sachida Rai, Cr. App No. 185 of 1989 (DB) on behalf of Ram Sahay Rai and Cr. App No. 215 of 1989 (DB) on behalf of Loknath Pathak have arisen out of one judgment and order of conviction and sentence dated 10th April, 1989 passed by the 2nd Additional Sessions Judge, Bhojpur (Arrah) in Sessions Trial No. 325 of 1980, whereby the Appellant Ram Sahay Rai was sentenced under Section 302 of the Indian Penal Code, others were sentenced under Section 302/34 of the Indian Penal Code. Accused Ramayan Rai was also sentenced under Section 27 of the Arms Act. All the accused persons were sentenced to undergo rigorous imprisonment for life. No separate sentence was passed against accused Ramayan Rai for the offence under Section 27 of the Arms Act. 2. The prosecution case related to an occurrence of about 11 P.M. on 23.04.1978. According to the allegation, Ayodheya Rai (the deceased) had gone to reserve a bus for the purpose of marriage of his son which was scheduled on 15th May, 1978. He returned from Arrah on that date at 8 P.M. with labourer Hira Lal Dusadh and got down from the bus at Agiaon Bazar, where Puja was being performed. The labourer was sent to the house and Ayodhya Rai remained in the market. Puja culminated after 10 P.M. Thereafter, at about 10.30 P.M. the informant Sudarshan Rai P.W.6 along with the victim Ayodhya Rai, co-villager Duniya Rai P.W.5 and Sitaram Rai (not examined) proceeded for their houses. Near the house of Hira Mahto, the informant P.W.6 noticed some persons standing in the street and so, he flashed the torch light and in the torch light he has identified Ramayan Rai, Ram Sahay Rai, Sachida Rai and Loknath Pathak, all the Appellants. Ramayan Rai was in possession of a gun while others were having Lathis. Allegation is that Ramayan Rai fired from his gun and the deceased was caught and pushed down by other accused persons. One of the Appellant Ram Sahay Rai cut the neck of the deceased by means of a dagger. Ramayan Rai was in possession of a gun while others were having Lathis. Allegation is that Ramayan Rai fired from his gun and the deceased was caught and pushed down by other accused persons. One of the Appellant Ram Sahay Rai cut the neck of the deceased by means of a dagger. The informant and other witnesses hided themselves and when the accused persons went after commission of the crime then on alarm being raised by the informant P.W.6, Janardan Rai P.W.1, Parma Nand Rai P.W.2, Digree Rai P.W.3 and others came. The written report Ext.2 of the occurrence was given to ASI of Agiawan Bit House and the written report Ext.2 was forwarded to the Officer-in-Charge Sahar Police Station for registering the case and the case under Section 302/34 of the Indian Penal Code was registered vide Sahar P.S. Case No. 15(4)78 dated 24.04.1978 on the basis of the written report Ext.2 of the informant P.W.6. The dead body was sent for post-mortem and the post-mortem Ext.1 was received. The inquest report Ext.7 was prepared. After investigation, the case was found to be true and the charge sheet was submitted. Cognizance was taken and the case was committed to the court of Sessions, where charges were explained to the accused persons who pleaded their innocence and the trial proceeded. 3. The defence of the Appellant was that the deceased Ayodhya Rai was killed by some others and taking the benefit of his unfortunate death, they were implicated on account of the enmity. 4. The prosecution in support of its case has examined seven witnesses. They are Janardan Rai P.W.1, Parmanand Rai P.W.2, Digree Rai P.W.3, Duniya Rai P.W.5, Sudarshan Rai P.W.6, the aforesaid persons have been examined as material witnesses. Dr. Kailash Behari Sahay, who has conducted the autopsy of the deceased is P.W.4 and Jamil Ahmad Khan, the investigating officer is P.W.7. 5. The defence has examined Ramayan Rai as D.W.1, Sachida Rai D.W.2, Loknath Pathak D.W.3 and Ram Sahay Rai as D.W.4. One complaint petition filed by Satyadeo Rai and one certified copy of decree passed by the Sub Judge-I in a Title Suit were the documentary evidence on behalf of the defence which were marked as Ext. A & B. 6. The defence has examined Ramayan Rai as D.W.1, Sachida Rai D.W.2, Loknath Pathak D.W.3 and Ram Sahay Rai as D.W.4. One complaint petition filed by Satyadeo Rai and one certified copy of decree passed by the Sub Judge-I in a Title Suit were the documentary evidence on behalf of the defence which were marked as Ext. A & B. 6. The trial court after considering the evidence of the prosecution and defence and after hearing the parties came to the opinion that the prosecution was able to prove the charges beyond shadow of all reasonable doubts. 7. Now, this Court has to see here that whether the prosecution has been able to prove the charges against the Appellants beyond all shadow of reasonable doubts or not. 8. According to the first version P. Ws. 1, 2 and 3 have come after the occurrence and they are not the eye witnesses. The informant P.W.6 has deposed that Ayodhya Rai was his full brother and he was four brothers. All the brothers were live separately in meets and bounds. Describing the grievance, he has stated that on 23.04.1978 Ayodhya Rai had gone to Arrah at about 8 A.M. along with his labourer Hira Lal Dusadh because one bus was to be arranged for taking Barat on the eve of marriage of his son. The Barat scheduled to be performed on 15th of May, 1978. On the date of occurrence, Ramayan Puja was being recited in the night. The recital place was beside the Sahar Road. At about 8 P.M. Ayodhya Rai on returning with Hira Lal Dusadh at Agiawn Bazar went to the place where the Ramayan Puja was being performed. The Puja culminated at 10.30 P.M. and thereafter, the informant along with Ayodhya Rai (the deceased) started returning to their houses along with Sita Ram Rai (not examined), Duniya Rai P.W.5 and Alakh Sharma (not examined). Alakh Sharma went to his house which was in the way and others proceeded to their houses. When the informant and others reached near the house of Hira and Buttan then, four persons namely the informant, Ayodhya Rai (the deceased), P.W.3 Digree Rai and Sita Ram Rai (not examined) remained and they were proceeding to south from north. Ayodhya Rai was head of all. In the meanwhile, P.W.6 noticed that four persons coming out from the side. When the informant and others reached near the house of Hira and Buttan then, four persons namely the informant, Ayodhya Rai (the deceased), P.W.3 Digree Rai and Sita Ram Rai (not examined) remained and they were proceeding to south from north. Ayodhya Rai was head of all. In the meanwhile, P.W.6 noticed that four persons coming out from the side. The informant P.W.6 flashed his torch and identified them, they were the accused who have been convicted. Ramayan Rai was having gun whereas Ram Sahay Rai, Sachida Rai and Loknath Pathak were having Lathis. On the exoneration of Ramayan Rai, Ayodhya Rai (the deceased) was overpowered by Ram Sahay Rai, Sachida Rai and Loknath Pathak and thereafter, Ayodhya Rai was pushed down near the door of Hira Mahto. Informants further version is that Ayodhya Rai fell down then Ram Sahay Rai picked up the dagger and cut the neck of Ayodhya Rai at that time Ayodhya Rai was being caught by Sachida Rai and Loknath Pathak. The informant P.W.6, Dunia Rai P.W.5 and Sita Ram Rai tried to rescue Ayodhya Rai but they failed to do so. Ramayan Rai restrained the informant and others to come forward. On the cry of the informant, Dunia Rai P.W.5 and Sita Ram Rai, Janardan Rai P.W.1, Parmanand Rai P.W.2 and Digree Rai P.W.3 came. Janardan Rai P.W.1 was also having a torch. They detailed about the occurrence and the persons who came later on and saw the accused persons fleeing from the place of occurrence. After the occurrence, at about 11 P.M. the informant and Dunia Rai P.W.5 went to the Bit House, Agiawan where written report was given. The Officer-in-Charge came at the place of occurrence and inspected, the torch which was in working order was produced and marked as Ext.6. The reason of the occurrence detailed by the informant was that younger brother of Jamuna Rai had died earlier, his widow was there. Widow of Jamuna Rai was litigating with Ramayan Rai for the share in the property. She was given shelter by Ayodhya Rai (the deceased) during her litigation. Her interests have been looked into by Ayodhya Rai (the deceased). 9. Widow of Jamuna Rai was litigating with Ramayan Rai for the share in the property. She was given shelter by Ayodhya Rai (the deceased) during her litigation. Her interests have been looked into by Ayodhya Rai (the deceased). 9. Learned Counsel for the Appellants has assailed the deposition of the informant and has submitted that, in fact, the informant has not seen the occurrence and when Ayodhya Rai was killed then the false case was lodged because of enmity. It has also been submitted that there was no enmity for killing because the informant has not stated this fact when the investigating officer recorded further statement of the informant. 10. The informant is persistent that on the date and time when Ayodhya Rai was killed, the role of killing was attributed to Ram Sahay Rai. Others have also made some overt acts of assault, but allegation of causing injury was solely attributed to Ram Sahay Rai. Another witness of the occurrence is P.W.3. P.W.3 has supported the informants version in total in his examination-in-chief and in his evidence he has stated that on the date and time of occurrence Ayodhya Rai was pushed by the accused persons and thereafter, Ram Sahay Rai beheaded him. Regarding role of others, he has stated that they were also assisting Ram Sahay Rai for commission of murder, but the investigating officer P.W.7 in para-24 has stated that Duniya Rai P.W.5 has not stated that Sachida Rai and Loknath Pathak were also catching Ayodhya Rai (the deceased) at the time of occurrence. Therefore, this part of the version that at the time of occurrence Ayodhya Rai was being caught hold by Sachida Rai and Loknath Pathak, has not been supported by the sole eye witness of the occurrence who had been examined to support the version of the informant. Therefore, the version that at the time of occurrence, Ayodhya Rai was caught by Loknath Pathak and Sachida Rai has not been corroborated by P.W.3. The evidence of P.W.3 is only to the extent that when Ayodhya Rai fell down then his neck was cut and this part of the evidence is consistent both in-chief as well as cross-examination and to that extent P.W.3 has remained intact. 11. The evidence of P.W.3 is only to the extent that when Ayodhya Rai fell down then his neck was cut and this part of the evidence is consistent both in-chief as well as cross-examination and to that extent P.W.3 has remained intact. 11. The doctor P.W.4 who has conducted the post-mortem examination of Ayodhya Rai (the deceased) on 24.04.1978 has found following injuries: (I) One incised wound of 3 1/2"x2 1/2"x3" in front of the neck. (II) Incised wound 3/4"x1/2"x skin deep on the left side of the nose. (III) Incised wound 1"x 1/2"x skin deep on the nose left side half an inch lateral to injury No. 2. (IV) Incised wound 1"x 1/4" x skin deep on the right side of the cheek. (V) Bruise 1" x 1/2" on the forehead. Injury No. (V) was caused by hard and blunt substances and this may be alleged that on account of opinion of doctor injury No. (I) which was incised wound 3 1/2"x2 1/2"x3 was sufficient to cause death. Therefore, according to the opinion of the doctor Injury No. (I) caused by sharp cutting weapon was fatal for Ayodhya Rai. The evidence of the doctor is to the extent that death of Ayodhya Rai was on account of sharp cutting injury which was propounded in course of commission of the occurrence. This part of the evidence has been proved. 12 Other witnesses Janardan Rai P.W.1, Parma Nand Rai P.W.2 and Digree Rai P.W.3 are the persons who have been relied upon by the prosecution to the extent that they had come after hearing some sound and they have seen the accused persons escaping from the place of occurrence and except that part of corroboration there is no corroboration. Even if, their evidence that they have seen the accused persons escaping from the place of occurrence is accepted then it cannot be said that the accused persons were the persons who committed the murder. These witnesses have seen the accused persons escaping and the place of occurrence is not far away from the house of the accused persons. Nobody will stay after seeing some occurrence and it is an initial conduct that after seeing the situation such persons will try to save themselves. These witnesses have seen the accused persons escaping and the place of occurrence is not far away from the house of the accused persons. Nobody will stay after seeing some occurrence and it is an initial conduct that after seeing the situation such persons will try to save themselves. The place of occurrence is not situated far away from the house of the accused persons and if they were seen escaping then it cannot be said that they were involved in commission of the occurrence. Therefore, the evidence to the extent that they have participated cannot be accepted as true. 13. The defence has taken plea that the accused persons were not present at the time of occurrence and they have been falsely implicated. This plea that the accused persons were not present at the time of occurrence is an alibi, hence it cannot be entertained. 14. The prosecution has been able to prove that on the date and time of occurrence Ayodhya Rai was killed and the killing was by use of sharp cutting weapon which has been attributed against Ram Sahay Rai. Second part of the occurrence that the killing was by the accused persons have not been proved beyond shadow of all reasonable doubts against all the Appellants. The injury is of only sharp cutting weapon which is attributed only to Ram Sahay Rai. One bruise is such a superficial injury which can utter if a person slipped on surface. No overt act of killing is attributed against others. Ramayan Rai had fired and that firing was for scaring others. The firing of Ramayan Rai was not for killing so it cannot be said that the others except Ram Sahay Ray in any manner have contributed in commission of the occurrence. No doubt, many witnesses have not been examined, they should have been examined. Hira Lal Dusadh and Sita Ram Rai who were present at the time of occurrence and witnessed the occurrence have not been examined. Alakh Sharma was a witness of seizure has not been examined. But those witnesses were not such whose evidence can prove the prosecution case because the death of Ayodhya Rai is not under challenge. It is also not under challenge that killing was by means of sharp cutting weapons therefore, non examination of the witnesses who have been relied upon by the presiding officer cannot be said to be vital. But those witnesses were not such whose evidence can prove the prosecution case because the death of Ayodhya Rai is not under challenge. It is also not under challenge that killing was by means of sharp cutting weapons therefore, non examination of the witnesses who have been relied upon by the presiding officer cannot be said to be vital. 15. To sum up, it is apparent that the prosecution has been able to prove beyond shadow of all reasonable doubts that Ayodhya Rai was killed in the night of 23.04.1978 by Ram Sahay Rai. Except the charge against Ram Sahay Rai, no charge has been proved against the other accused persons. 16. In view of the discussions made above, we are of the view that the prosecution was not able to prove the charges against accused Ramayan Rai, Sachida Rai and Lok Nath Pathak. Accordingly, the judgment of conviction and order of sentence passed against Ramayan Rai, Sachida Rai and Lok Nath Pathak is set aside and they are acquitted of the charges. So far as charge against Ram Sahay Rai is concerned, the prosecution has been able to prove the charge beyond the shadow of all reasonable doubts. Accordingly, against him the conviction and sentence are upheld. 17. In the result Cr. App No. 159 of 1989 (DB) filed on behalf of Ramayan Rai and Sachida Rai and Cr. App No. 215 of 1989 (DB) filed on behalf of Lok Nath Pathak are allowed and they are discharged from the liabilities of their respective bail bonds. Cr. App No.185 of 1989 (DB) filed on behalf of Ram Sahay Rai is dismissed. The bail bond of Appellant Ram Sahay Rai is cancelled and he is directed to surrender in the court below forthwith and the court below is also directed to take all coercive steps to take him into custody to serve out the remaining sentence.