JUDGMENT ADITYA KR. TRIVEDI, J 1. Both these appeals have arising out of the common judgment of conviction and sentence have been heard together and are being disposed of by this common judgment. It is worth mentioning that one of appellants/convict, Yogendra Singh @ Jogia in Cr. Appeal No.433 of 1990 had died during pendency of the appeal and consequently his appeal had abated as recorded in the order dated 20.5.2003. 2. Challenge in this appeal is to the judgment of conviction and sentence dated 24.9.1990 passed by Additional Sessions Judge-XII, Patna in Sessions Trial No.833/87 whereby and whereunder he had held appellant Arun Kumar Singh guilty for an offence punishable under Section 302 IPC, 27 of the Arms Act and had also held appellants Arun Singh, Yogendra Singh @ Jogia (since deceased), Ram Singhasan Singh, Shyam Narayan Singh, Ram Nath Singh, Ram Kewal Singh guilty for an offence punishable under Sections 302/149 of the IPC, 27 of the Arms Act. Appellants Shyam Narayan Singh, Ram Nath Singh, Yogendra Singh @ Jogia and Ram Kewal Singh have been additionally held to be guilty for an offence punishable under Section 307 IPC. The trial court while passing the order of sentence has directed appellant Arun Kumar Singh to undergo RI for life under Section 302 of the IPC as well as RI for 3 years under Section 27 of the Arms Act. In likewise manner, appellants, Yogendra Singh @ Jogia (since deceased), Ram Singhasan Singh, Shyam Narayan Singh, Ram Nath Singh, Ram Kewal Singh have been directed to undergo RI for life under Sections 302/149 IPC as well as RI for three years under Section 27 of the Arms Act. Appellants, Yogendra Singh @ Jogia Shyam Narayan Singh, Ram Nath Singh, Ram Kewal have been additionally directed to undergo RI for seven years under Section 307 of the IPC. All the sentences however have been directed to run concurrently. 3. The prosecution case in a nutshell as per Fardbeyan (Ext.-3) of Kusheshwar Singh, (PW-11) recorded on 2.5.87 at about 10:30 A.M. at NMCH, Patna alleging inter alia is that on 2.5.87 in between .7:30 to 8:00 A.M. while he alongwith Sunil Kr. , Singh (PW-5), Ravi Shankar (PW-2), Shashi Shushan Singh (PW-6), Kumud Ranjan Singh (PW-7) and Naveen Kr. 3. The prosecution case in a nutshell as per Fardbeyan (Ext.-3) of Kusheshwar Singh, (PW-11) recorded on 2.5.87 at about 10:30 A.M. at NMCH, Patna alleging inter alia is that on 2.5.87 in between .7:30 to 8:00 A.M. while he alongwith Sunil Kr. , Singh (PW-5), Ravi Shankar (PW-2), Shashi Shushan Singh (PW-6), Kumud Ranjan Singh (PW-7) and Naveen Kr. Singh (deceased) had come near the pond and out of them, Shashi Shushan and Kumud Ranjan Singh had gone to the place of Rajnandan Machi (PW-4) after crossing the pond for engaging him as a labour. It is said that in the meantime appellant Ram Nath Singh had arrived there and both sides had entered into verbal 'duel. Seeing this, the informant and others had proceeded towards that direction and during course thereof, they had seen appellants Arun, Ram Kewal, Yogendra @ Jogia (since deceased), Ram Singhasan, Shyam Narayan armed with rifle and gun arriving over there and appellant Ram Kewal to have fired at Shashi Shushan and Kumud Ranjan but fortunately, they had escaped the firing and gone towards Chamartoli. The informant claimed that he had forbidden the appellants not to fire and Naveen also joined him in desisting the appellants to indulge in firing. According to the informant the aforesaid request was not heeded by the accused persons who had fired from their gun but again their fire had missed to hit anyone. The informant claimed that he tried to escape therefrom but on account of firing made by appellant Ram Nath, he had sustained injury over his back. Whereafter Naveen had turned back and had again r!3quested to accused persons not to fire but brushing aside his such request appellant Arun had shot at Naveen from his rifle causing injury in his chest as a result whereof Naveen after covering some distance had fell down. The informant had also alleged that in the midst of such firing on him and Naveen his father also arrived there and when appellant Ram Kewal shot at him (informant) it had hit his father as he (informant) had bent down. The informant had also claimed that thereafter he had run away to save his life and as per the direction of his co-villager, Vijay Kr. Singh (PW-9) and Nathun Singh (not examined), he had gone to hospital. The informant had also claimed that thereafter he had run away to save his life and as per the direction of his co-villager, Vijay Kr. Singh (PW-9) and Nathun Singh (not examined), he had gone to hospital. It is also the case of informant that in midst of way to hospital he met his father who had disclosed to him that he (father) was also shot at by Yogendra @ Jogia and when he reached NMCH, he was informed regarding death of Naveen whereas his father was taken for medical examination. 4. The motive for occurrence in the Fardbeyan of informant recorded by a police officer in N.M.C.H. is said to be some sort of dispute erupted amongst the parties while they were witnessing the dance of a prostitute on 1.8.87 who had come alongwith a marriage party in the house of Jharokha Singh. 5. On the basis of aforesaid Fardbeyan, Fatuha P.S. Case No. 189/87 was registered by the police which after completing investigation had filed a chargesheet whereupon the case was committed to the court of sessions after the trial court having framed charges against the appellants had conducted the trial leading to the impugned judgment of conviction and sentence which happens to be subject matter of these two appeals. 6. The defence case as is evident from mode of cross-examination as well as statement recorded under Section 313 of the Cr. P.C. is of innocence as well as complete denial of occurrence. It has further been asserted that the prosecution party had sustained injuries at different place in different manner but on account of village politics and group rivalry, the appellants have been falsely roped in. They have also denied the so-called motive divulged by the prosecution and on that very score two DWs have also been examined. 7. In order to substantiate its case, the prosecution had examined altogether 14 witnesses out of whom PW-1 is Yogeshwar Singh, PW-2 is Ram Shankar Singh, PW-3 is Rabindra Kumar Singh, PW-4 is Raj Nandan Das, PW-5 is Sunil Kr. Singh, PW-6 is Shashi Bhushan Singh, PW-7 is Kumud Ranjan Singh, PW-8 is Deo Baran Singh, PW-9 is Bijoy Kumar Singh, PW-10 is Dr. Chandeshwar Prasad, PW-11 is Kusheshwar Singh (informant), PW-12 is Dr. Raj Kishore Prasad (who examined the injured), PW-13, Punit Ram (o/c) , and PW-14, Bhaiya Pradeep Kr. Sinha. Singh, PW-6 is Shashi Bhushan Singh, PW-7 is Kumud Ranjan Singh, PW-8 is Deo Baran Singh, PW-9 is Bijoy Kumar Singh, PW-10 is Dr. Chandeshwar Prasad, PW-11 is Kusheshwar Singh (informant), PW-12 is Dr. Raj Kishore Prasad (who examined the injured), PW-13, Punit Ram (o/c) , and PW-14, Bhaiya Pradeep Kr. Sinha. Side by side also exhibited material exhibits (i), (ii), (iii) Dhoti, Ganji and Gamchha of PW-8. Ext.-1 Series, signature of different witnesses over different documents, Ext.-2, post mortem, Ext.-3, Fardbeyan, Ext.-4 series, injury report of respective injured. Ext.-5, inquest report, Ext.-6, formal FIR, Ext.-7, production list, Ext.-8, endorsement/forwarding over Fardbeyan, Ext.-9, CD as well as there happens to be mark 'X', the Sanha. Defence had also examined two DWs out of whom DW-1 is Sitaram Singh and DW-2 is Ram Jharokha Singh. 8. Learned counsel for the appellants while assailing judgment of conviction and sentence recorded by the learned lower court has submitted that the prosecution has not come with the clean hand and therefore the prosecution case on its face is fit to be rejected. To support his argument, Mr. Kanhaiya Prasad Singh learned Senior Counsel for the appellants has submitted that there happens to be glaring inconsistency amongst the prosecution witnesses with regard to manner as well as genesis of occurrence. Not only this, it has also been argued by Mr. Singh that prosecution has not been able to substantiate the place of occurrence. The cumulative effect, as submitted by him, therefore would be that the prosecution has not been able to prove its case beyond all reasonable doubt. 9. Further making elaborate submission on the aforesaid grounds, it has also been submitted by Mr. Singh that there happens to be specific disclosure made by PW-5 and PW-6 regarding presence of police officials at the place of occurrence before coming into existence of the present FIR (Ext.-3) and thus it was incumbent upon the prosecution party or at least by the police officials themselves, on account of the offence being cognizable one, to record their own Fardbeyan and proceed with investigation without- waiting for or giving ample opportunity to the prosecution party to bring the Fardbeyan of in formant (Ext.-3) in existence. Further has been submitted on behalf of the appellants that true it is that the occurrence has been alleged to have taken place in between 7:30 to 8:00 A.M. and the recording of Fardbeyan (Ext.-3) happens to be at 10:30 A.M. but on account of 'presence of police officials at the place of occurrence and further having failure on the part of prosecution to launch prosecution at that very moment, waiting for recording of Fardbeyan, Ext.-3 is a matter of concern which should be viewed seriously and adverse to the prosecution. Further, it is submitted that as per Fardbeyan, Ext.-3, there happens to be two injured witnesses, that means to say, PW-11, informant and PW-8, his father' and one Naveen (deceased) who had succumbed to his injuries but none of the witness including the two investigating officers have succeeded in praying the exact place of occurrence and establishing the place where all the three had sustained firearm injuries in the hands of the appellants. Furthermore, it has been submitted that right from Fardbeyan, it is evident that appellant Ram Nath was empty handed while he had indulged in verbal duel with PWs-6 and 7 but there is no disclosure in the Fardbeyan as well as in the evidence of any of the PWs that as to how and when appellant Ram Nath had become armed with gun by which he had caused injury over the person of PW-11, the informant. 10. It has also been submitted on behalf of the appellants that on a closer analysis of the evidence of material witnesses it becomes absolutely clear that they are not at all eye witnesses to the occurrence. In the aforesaid background, the conduct of the prosecution has also been criticized by the learned counsel for the appellants on the ground that prosecution has intentionally withheld original Sanha and on account thereof, the copy of Sanha sent by the PW-13 was only marked 'X' for identification. The aforesaid Sanha according to Mr. Singh was called for during course of hearing of a bail petition of the appellants by the court of sessions and the prosecution was thus well aware from inception at least with regard to contents thereof but, surprisingly it did not try to explain the contents thereof. According to Mr. The aforesaid Sanha according to Mr. Singh was called for during course of hearing of a bail petition of the appellants by the court of sessions and the prosecution was thus well aware from inception at least with regard to contents thereof but, surprisingly it did not try to explain the contents thereof. According to Mr. Singh, the 1earned Senior Counsel the evidence of PW-14 the second I.O. is also surprising on this score inasmuch as when his evidence is scrutinized, the same is found to be wholly inconsistent with the earlier Sanha (Mark 'X' for identification). Referring to Sanha No. 24 which divulges the fact that the occurrence took place at Village-Alawalpur learned counsel for the appellant has submitted that the conduct of informant PW-11 instead rushing to the P.O. Village, his going to NMCH without having any sort of information as with regard to presence of injured/deceased at NMCH at the time of recording Sanha No. 24 itself creates a doubt in the prosecution case. Therefore, in the aforesaid background it has been argued on behalf of the appellants that prosecution knowingly and intentionally had suppressed the material fact which, if would have been brought up on record, certainly, could have gone against the interest of the prosecution and thus, the version of the prosecution appears to be wholly doubtful and its case is fit to be rejected. 11. On the other hand, learned APP assisted by Mr. Ajay Kumar Thakur learned, counsel for the informant had submitted that the finding recorded by the learned lower court happens to be based on meticulous examination of the materials available on the record. Further, it has been submitted that the evidence of the witnesses has to be taken in its entirety. The probability of the case, the conduct of the prosecution witnesses is also to be taken into account and so far this particular case is concerned, having two injured at their side as well as one more sustaining severe injuries which ultimately proved to be fatal, there was no option left to the prosecution than to lift the injured and deceased to the hospital and accordingly, PW-14 the police officer had rightly gone to NMCH. It has also been submitted that, true it is that there happens to be presence of police officials at the place of occurrence as has been disclosed by the prosecution witnesses but they were at that very place not for the purpose of registration of the case as well as for investigation rather they were present there for maintaining law and order problem and had belonged to different police stations and on account thereof, non-registration of case at that very moment was not going to adversely affect upon the prospect of the prosecution. 12. It has been also submitted that there happens to be categorical statement of the witnesses including the injured one that while they were ascending over the mound and in course thereof PW-11 had sustained injury from behind at the hands of appellant Ram Nath. It has further been submitted that at that very moment Naveen (deceased) was ahead of PW-11 who had turned back and seen PW-11 in injured condition whereafter he (deceased) stood up and requested the accused not to fire which was turned down by the accused and thereafter appellant Arun shot at causing injury over his chest. Thus, the presence of injury at the chest of Naveen from front side stands according to learned counsel for the State properly explained. It has been further submitted that in likewise manner, there happens to be proper explanation with regard to gunshot injury sustained by PW-8 more so when the doctor had also has corroborated in his evidence. In the aforesaid background as well as taking into account the evidence of PWs in its totality, learned APP is of the view that the prosecution case is found to be fully supported by materials on record. 13. It has further been submitted on behalf of the State that Sanha which has been marked as 'X' for identification as well as Sanha No. 24 which was recorded by PW-14, are the documents created at the hands of accused persons on account of presence of father of accused (a retired police official) at the P.S. where he had worked as Najaiz Clerk and the same has been brought up on record by the prosecution and on account thereof, those San has have got no relevance. In this regard, it has been also submitted that because of the fact that those documents have not been properly exhibited in accordance with Evidence Act the contents thereof could not be looked into, and as such, those documents cannot be taken into consideration and no finding could be based on them. It has been finally submitted on behalf of the State that the prosecution had produced consistent evidence to support its case and consequent thereupon, the judgment of conviction and sentence recorded by the learned lower court would require no interference by this Court. 14. Before coming to the material evidence, first of all evidence of doctor is to be taken into consideration. PW-12 is the doctor who had examined the injured. As per his evidence on 2.5.87 at about 9:00 A.M., he had examined Kusheshwar (PW-11) and found following injuries:- Multiple pellet injuries about 6-7 in number. Present over the back of chest, shoulder and scalp. As per x-ray report the pellets were found imbedded at chest as well as scalp. The aforesaid injuries were found to be simple in nature caused by firearm. The time estimated was within two hours. 15. On the same day and at about same time he had examined Deo Baran Singh (PW-8) and found following injuries:- 1. (a) Lacerated punctured wound .5 cm x .5 cm x .5 cm over left cubital fossa. No wound of exit was found. Bleeding was there. (b) Lacerated punctured wound .5 cm x .5 cm x .5 cm over back of left elbow. No wound of exit was found. 2. Lacerated punctured wound 1 cm in size, depth could not be ascertained on right side of the chest in the middle near mid-axillary line. 3. Lacerated punctured wound .5 cm x .5 cm x about .5 cm at lower part of sternum. No wound of exit was found. 4. Lacerated punctured wound .5 cm x .5 cm x about .5 cm at the middle of the back of right leg. No wound of exit was found. All the injuries except injury no.2 have been found to be simple in nature while injury no. 2 was identified as dangerous cause by gun-shot injury. The time estimated happens to be within two hours. During cross-examination the doctor had disclosed that the nature of injury suggest that they might have been caused by two separate shots. All the injuries except injury no.2 have been found to be simple in nature while injury no. 2 was identified as dangerous cause by gun-shot injury. The time estimated happens to be within two hours. During cross-examination the doctor had disclosed that the nature of injury suggest that they might have been caused by two separate shots. The doctor further admitted that in case of shot fired from longer distance there will be superficial pellet injury. 16. In likewise manner PW-10 happens to be the doctor who had conducted post mortem over the dead body of Naveen on 2.5.87 at 3:00 P.M. He had found the following injuries:- One lacerated punctured wound ¼" x ¼" communicating with the chest cavity with abrasion ¾" x ¼" alongwith wound. The wound was over right side of chest wall at the 5th and 6th inter-coastal space near the sternal border. No other wound was present except swelling of right side of chest wall at the 12th rib. Size of swelling was 3" x 3". On dissection: Echymosis and blood clot was present over the underlying tissues at the side of wound no. 1 with fracture of right sternal border and the upper border of 6th rib. The diaphrogram and superior surface of liver (left lobe) found to be lacerated, puncture wound of ½" x ½" directed through and through its sub-strum to the inferior surface where the wound was 1" x 3/4" in size. Right kidney ruptured and torn in middle with blood and blood clot present in the thoracic and abdominal cavity about three litres. One projectile was recovered lodged in the musculature of the posterior wall of the chest where 12th rib junction with vertebra at its upper border. Projectile was sealed and handed over to the police. In the opinion of the doctor the death was due to shock and haemorrhage as a result of aforesaid ante mortem injury by a projectile fired from a firearm such as rifle from a close range and the same was found to be sufficient in ordinary course of nature to cause death. 17. During cross-examination the doctor had disclosed that on account of closeness of the fire the projectile caused destruction of viscera by traveling inside on account of resistance of bone. 17. During cross-examination the doctor had disclosed that on account of closeness of the fire the projectile caused destruction of viscera by traveling inside on account of resistance of bone. As a result of which the wound of injury was found to be up to junction of 12th rib/vertebra and further remained lodged there. Therefore, from the evidence of PW-10 as well as PW-12, it is evident that the injured that means to say, PW-11 as well as PW-8 had sustained gun shot injuries and in likewise manner deceased Naveen died on account of single rifle injury. The respective doctors during course of cross-examination have disclosed that the firing was made from close range. Whatever sequence may be, it remained beyond pale of controversy that the death of Naveen as well as sustaining of injuries by PW-8 as well as PW-11 was caused by firearm injuries. 18. In the aforesaid background, now first of all the evidence of PW-11, informant is to be taken into consideration. During his examination-in-chief, he had deposed that on 2.5.87 at about 7:30 A.M. he alongwith Sunil, Ravi Shankar, Naveen, Shashi Shushan, Kumud Ranjan had proceeded towards the house of Rajnandan for engaging him to do work. When they arrived near ditch, Shashi and Kumud had gone from there to the place of Rajnandan. Ram Nath arrived there while both of them were making conversation with Rajnandan and indulged into verbal duel with them over which they crossed the ditch and proceeded towards the house of Rajnandan. At that very moment, he saw Ram Kewal, Arun, Shyam Narayan, Ram Singhasan, Yogendra @ Jogia coming out from their house armed with rifle and gun. Only Arun was armed with rifle while remaining were armed with gun. First firing was made by Ram Kewal just after coming out from his house. His firing had missed and Shashi and Kumud had slipped inside the house of Rajnandan" Das. They had forbidden the accused not to indulge in such a nefarious activity but the accused persons did not pay heed to it and proceeded towards them and during said course Ram Nath and Shyam Narayan shot at them but fortunately, none had sustained any injury. They however, slowly and slowly had proceeded towards eastern direction and as soon as they started climbing over mound after crossing the ditch, Ram Nath had shot at causing injury over his back. They however, slowly and slowly had proceeded towards eastern direction and as soon as they started climbing over mound after crossing the ditch, Ram Nath had shot at causing injury over his back. He then is said to have turned back and found Arun abusing Naveen which was followed by a firing which caused injury over chest of Naveen and Naveen after covering some distance had fell down. Ram Kewal thereafter again aimed at him but in the meantime his father Deo Baran (PW-8) arrived and as he ran therefrom, the firing made by Ram Kewal had hit his father Deo Baran Singh. Firing is said to have continued even after the departure of PW-11 who had said that he had gone to village and from there he had proceeded to hospital and in midway, he had met with his father who had disclosed to him that Shyam Narayan and Yogendra @ Jogia had also shot at him. When he arrived at NMCH, he found dead body of Naveen whereafter he had given statement before the police at NMCH (Ext-3). He had identified the accused and then had disclosed the motive. Then at para-8, he had disclosed that he had not gone to Gaurichak P.S. on the day of occurrence after the occurrence. He had also disclosed that no Sanha was registered on that very day. He also said that as police was not investigating the case properly, so he had filed a protest petition. He had further disclosed that no water was in the ditch. He had also given length and breadth of ditch as 500 yards x 25/30 feet which was north to south in length while east to west in breadth. 19. During cross-examination at para-13, he had disclosed that he had given his statement only once to the police over which he put his signature. Then, he again had disclosed that his second statement was recorded by Punit the 2nd I.O. and that he had also made statement before ASP. In para-14 his attention was drawn towards the fact that he had not mentioned the fact in his statement as well as• protest petition that during course of climbing over mound at the eastern side of ditch Ram Nath had fired causing injury over his back. In para-14 his attention was drawn towards the fact that he had not mentioned the fact in his statement as well as• protest petition that during course of climbing over mound at the eastern side of ditch Ram Nath had fired causing injury over his back. In para-16 he had disclosed that he had not gone to Chamartoli before occurrence nor he had not gone west to ditch and that he had got no personal knowledge regarding identity of houses at Chamartoli. He had also narrated that he had gone to the house of Rajnandan before the date of occurrence to call him. Then, he had disclosed that on the alleged date of occurrence he had sent his companion to the house of Rajnandan. Then he had disclosed that one has to go through the ditch to reach the place of Rajnandan. In para-17, he had admitted that he had not shown the embankment to any police official where earth was to be filled up. At para-18, he had disclosed that he alongwith Sunil, Ravi Shankar and Naveen remained standing on the eastern side of ditch while two others had gone to the place of Rajnandan. Them, he had divulged that the house of Lekhu lies at the eastern flank of ditch and they were standing south to the house of Lekhu. Then, he had disclosed that the depth of ditch happens to be 4-5 feet. In para-19 he had disclosed that they had seen altercation from that very place which was going on in between Ram Nath on one side and Shashi Shushan and Kumud Ranjan on the other. Para-20 happens to be contradiction. In para-21 he had disclosed that Shashi and' Kumud had slipped in to the house of Rajnandan. The accused persons had not entered into the house of Rajnandan to commit murder of Shashi Shushan and Kumud Ranjan. None of the accused had gone inside the house of Rajnandan to chase Shashi Shushan and Kumud Ranjan. Then there happens to be contradiction on this very score. He had further disclosed that he had not sustained injury while he was going towards eastern side but as soon as he began to climb over ditch he had sustained injury. At that very time, he was towards east and he had not fallen down after sustaining injuries. Then there happens to be contradiction on this very score. He had further disclosed that he had not sustained injury while he was going towards eastern side but as soon as he began to climb over ditch he had sustained injury. At that very time, he was towards east and he had not fallen down after sustaining injuries. In para-23, he had disclosed that he had not fled therefrom even after sustaining injury by Naveen. He had seen for the first time his father who was 4-5 feet away from him and his father was standing. In para-24, he had disclosed that he cannot say on which part of body his father had sustained injury. He had also admitted that he had not witnessed the subsequent injury sustained• by his father by means of firearm. According to PW-11 even after sustaining injuries, he was in a position to travel and he did not' become unconscious. First of all, he had gone to his house after sustaining injury whereafter he had not returned back to the place, of occurrence and so he cannot say as to how long the accused persons had stayed at the place of occurrence. Then, there happens to be contradiction regarding which his attention has been drawn. 20. So, from evidence of PW-11, it is clear that first firing was made by Ram Kewal when he alongwith others came out from their house. From his evidence, it is also borne out that he had not disclosed regarding the fact that other accused persons save and except Ram Nath had gone to the place of PW-4 Rajnandan. That means to say, when the other accused have not gone to the place of Rajnandan then how Ram Nath could have joined the other accused and further as to how he had procured gun by which he assaulted the informant is not explained at all. Not only this, the identification of Ram Nath as an assailant of informant and his identification on that very score also happens to be improbable in light of the fact that at that very moment while the informant was climbing over the mound having his face towards eastern side while the firing was made from behind that means to say from western side. Apart from that the presence of PW-8 has been explained by the informant but with regard to presence of dead body of Naveen before his arrival at the hospital has not been explained by him nay he had named any person who had lifted the dead body of Naveen to NMCH. The informant was very much apprehensive with regard to Sanha entry and for that he had tried to explain that under para-8 of his examination-in-chief that he had not gone to the Gaurichak Police Station after the occurrence on the alleged date of occurrence and further no Sanha was entered at his behest. 21. Another injured happens to be his father PW-8. In his examination-in-chief he had disclosed that on 2.5.87 at about 7:30 A.M. to 8:00 A.M. while he was at his Darwaza, after hearing sound of firing rushed towards that direction. When he reached near the house of Ram Pravesh, he found Naveen lying on the earth in an injured condition in the field of Ghuran Singh. He further proceeded ahead and forbidden Ram Singhasan, Shyam Narayan, Ram Kewal, Arun and Yogendra @ Jogia over which Ram Kewal shot at Kusheshwar. As Kusheshwar escaped unhurt, he had sustained injury over his chest. Then thereafter, Yogendra @ Jogia also fired causing injury over his left hand while Shyam Narayan had fired causing injury over his left leg. Then thereafter, he fell down and became unconscious. He had given his statement before police on two occasions. He had also produced his cloth before police. During cross-examination, from paras-6, 7 there happens to be inter se relationship amongst the prosecution witnesses while paras-8 arid 9 there happens to be inter se relationship of accused. As per para-10, some sort of previous litigation is there. In para-15, he had disclosed that the house of lekhu lies at eastern flank of ditch. His land also lies there. House of Shatrughan lies east to the house of lekhu. Then he had disclosed that barren land of Ghuran lies east to the house of lekhu as well as Shatrughan. The house and land of Ram Pravesh lie south to this barren land. At paras-10-17, there happens to be contradiction. In paras-20-21 he had denied the suggestion that there was indiscriminate firing from Chamartoli on account of which he had sustained injury. He had further been confronted with the earlier statement made before the police. The house and land of Ram Pravesh lie south to this barren land. At paras-10-17, there happens to be contradiction. In paras-20-21 he had denied the suggestion that there was indiscriminate firing from Chamartoli on account of which he had sustained injury. He had further been confronted with the earlier statement made before the police. 22. So from his evidence, from examination-in-chief alone, it is evident that after sustaining injury at the hands of accused he became unconscious. How he was lifted to the hospital, he had not disclosed. He had not disclosed that during midst of way to hospital he met his son, PW-11 the informant whom he had disclosed regarding assault made on him by Yogendra @ Jogia and Shyam Narayan. On this score, at least there happens to be inconsistency. Not only this, from his examination-in-chief, it is evident that deceased Naveen was found in the filed of Ghuran and when exact location of land of Ghuran is taken together with his para-15, it is evident that the land of Ghuran lies east to the house of lekhu and Shatrughan and if there happens to be proper appreciation of location of ditch as per evidence of PW-11, the informant, certainly the land of Ghuran will be west to the ditch and that happens to be reason behind that PW-11 had not disclosed in his examination-in-chief with regard to failing of Naveen in the field of Ghuran. This witness also did not speak with regard to presence of dead body of Naveen at the NMCH since before his arrival. 23. Now, the other relevant witnesses happen to be PW-4, Rajnandan at whose house, as per prosecution version two of the witnesses, Shashi and Kumud had gone leaving apart other members of their company at the eastern side of ditch. PW-4 had said that on the alleged date and time of occurrence, Kumud and Shashi had come to his place for putting earth over the embankment. While talk was going on Ram Nath came and indulged in an altercation. He tried to pacify on account of which Ram Nath had chided him. All these misshapenness occurred at his Darwaza. In midst thereof, he heard sound of firing over which gone inside his house. During cross-examination at para-6 he had said that he was not engaged at an earlier count by Shashi. He tried to pacify on account of which Ram Nath had chided him. All these misshapenness occurred at his Darwaza. In midst thereof, he heard sound of firing over which gone inside his house. During cross-examination at para-6 he had said that he was not engaged at an earlier count by Shashi. When Shashi came to his place, Bachchu Das and Bhutkun Das were also present there. Then at para-10 there happens to be contradiction. At para-11 he had disclosed that he had heard sound of firing while remaining inside his house. From his evidence, it is evident that he had not disclosed where Shashi and Kumud had fled. Certainly, not inside his house. He had not disclosed whether other accused had come to his house. He had not named any other accused except Ram Nath with whom there was an altercation. 24. Now coming to the remaining witnesses, the evidence of PW-1 is of not much relevance because of the fact that he had simply exhibited signature over seizure list which was prepared by the police after having Dhoti, Gamchha and Ganji produced by PW-8. In para-3 of his cross-examination, he had fairly said that he had not gone to NMCH on 2.5.87. 25. PW-2 had deposed that on the alleged date and time of occurrence, he alongwith Shashi, Kumud, Naveen, Sunil were going to Chamartoli. He, Sunil, Kusheshwar and, Naveen stayed near ditch while Shashi and Kumud had gone to the place of Rajnandan. He saw, while Shashi and Kumud were talking with Rajnandan, Ram Nath came and indulged in an altercation with Shashi and Kumud. Then thereafter, Ram Kewal, Arun Kumar, Yogendra @ Jogia, Shyam Narayan, Singhasan armed with gun came from their house. As soon as they came out from their house, Ram Kewal fired at Shashi and Kumud on account of which Shashi and Kumud rushed towards Chamartoli. They also proceeded towards that direction. They had forbidden accused. The accused persons also proceeded towards them and during said course, Shyam Narayan fired at them. Again Ram Nath fired. Then they came east to the ditch and during said course Ram Nath shot at causing injury over back of Kusheshwar. Naveen had turned back and had forbidden the accused not to fire over which Arun had shot at with rifle causing injury over chest of Naveen. Naveen after covering some distance fell down. Again Ram Nath fired. Then they came east to the ditch and during said course Ram Nath shot at causing injury over back of Kusheshwar. Naveen had turned back and had forbidden the accused not to fire over which Arun had shot at with rifle causing injury over chest of Naveen. Naveen after covering some distance fell down. Deo Baran also arrived there. Ram Kewal had shot at but as Kusheshwar flew from there his father Deo Baran had sustained injury. Shyam Narayan and Yogendra @ Jogia had also fired on the order of Singhasan Singh causing injury to Deo Baran. Deo Baran had fell down and Deo Baran and Naveen had become unconscious. They were lifted from there and taken to hospital. Then he had disclosed that during course of dance of the prostitute there was some sort of altercation in between them and on account thereof Arun had assaulted Shashi over his head by a torch. In para-6, he had denied the suggestion that he had changed the manner of occurrence, place of occurrence and the time of occurrence as well as names of the assailants. Then he had denied the suggestion that the injured had sustained injuries at Chamartoli. Then he had admitted presence of some sort of land dispute in between himself at one side and Brijnandan and others on the other. At para-9 he had disclosed that they had assembled at the house of Sunil to go to Chamartoli as they were requiring five labourers. Sunil had proposed to call Rajnandan. He had not gone to Chamartoli while Shashi, Kumud had gone. He had further disclosed. That they had remained at the eastern flank of ditch which happens to be west to the house of Lekhu Singh. Then he had disclosed that while altercation was going on, they had gone west to the ditch. While they were 60-70 yard away from Rajnandan, then firing was made towards Shashi and Kumud followed by firing on them. Further, he disclosed that he had not seen indiscriminate firing made from Chamartoli. Then there happens to be contradiction with regard to previous statement given to police under Section 161 Cr. P.C on all material aspect. 26. PW-3 again has got no relevance on material aspect save and except he stood as a witness over inquest report. 27. Further, he disclosed that he had not seen indiscriminate firing made from Chamartoli. Then there happens to be contradiction with regard to previous statement given to police under Section 161 Cr. P.C on all material aspect. 26. PW-3 again has got no relevance on material aspect save and except he stood as a witness over inquest report. 27. PW-5 had disclosed that on the alleged date and time of occurrence they were going to Chamartoli. Ravi Shankar, Kusheshwar, Naveen, Shashi Shushan, Kumud Ranjan were alongwith him. While they reached near the ditch, he, Ravi Shankar, Naveen, Kusheshwar stayed there. While Kumud and Shashi had gone to call Rajnandan for putting earth over embankment. When Shashi and Kumud reached at the place of Rajnandan and while they were talking with Rajnandan, Ram Nath came and indulged in an altercation. During course thereof they also proceeded forward and had seen Ram Kewal, Shyam Narayan, Ram Singhasan, Yogendra @ Jogia, Arun armed with rifle and 'gun coming out from their house. As soon as they came out, Ram Kewal had shot at Shashi and Kumud on account of which they both proceeded inside Chamartoli. They had forbidden the accused not to fire but the accused persons also proceeded towards them and during said course Shyam Narayan fired towards them. They had again forbidden them but again firing was made by Ram Nath. Thereafter, they came back at other side of ditch and during course thereof Ram Nath shot at causing injury over of Kusheshwar. Naveen had forbidden them but accused persons did not pay heed to it and out of them, Arun had fired from his rifle causing injury over chest of Naveen and Naveen after covering some distance fell down. In midst thereof, Deo Baran also reached there. As Kusheshwar escaped therefrom, therefore, firing made by Ram Kewal hit Deo Baran. On an order of Ram Singhasan, Shyam Narayan and Yogendra @ Jogia also shot at causing injury over Deo Baran. Deo Baran fell down. Deo Baran and Naveen both became unconscious and were taken to the hospital. He further disclosed that blood had oozen out and fell over earth at the respective place where both the injured had fallen down after sustaining injuries. In para-7 of the cross-examination, he had admitted that he had shown blood to the police official. Deo Baran fell down. Deo Baran and Naveen both became unconscious and were taken to the hospital. He further disclosed that blood had oozen out and fell over earth at the respective place where both the injured had fallen down after sustaining injuries. In para-7 of the cross-examination, he had admitted that he had shown blood to the police official. He had further admitted that O/C, Additional S.P., Inspector had gone to his village on the date of occurrence itself. Further, he disclosed that Inspector was of Punpun P.S. Then, he had disclosed that he had already narrated the event to the inspector. At para-8 he had admitted that proposal to call Rajnandan was decided at his Darwaza. When they reached at the bank of ditch they had remained at the eastern side while Kumud and Shashi had gone to the place of Rajnandan. At para-9 he had disclosed that after hearing the sound of altercation they had gone west to ditch. Then there happens to be material contradiction. At para-10 he had said that Shashi and Kumud had gone inside the house of Rajnandan on account of firing made by Ram Kewal. None of the accused persons followed them inside the house of Rajnandan. Again there happens to be material contradiction. As per his evidence police had already arrived at the village and got his statement well before recording of Fardbeyan (Ext.-3). Prosecution is however totally silent over it. Furthermore, it is evident from his deposition that he had accompanied the injured to Hospital. 28. PW-6 had disclosed that on the alleged date and time of occurrence they were going to the place of Rajnandan Mochi to engage him as labour for putting earth over embankment. When they reached near ditch Naveen, Sunil, Kusheshwar and Ravi Shankar remained there while he alongwith Kumud Ranjan had gone to the house of Rajnandan. While they were talking, Ram Nath intervened and indulged in an altercation. He disclosed that yesterday they were beaten and again they will be beaten. Shyam Narayan, Ram Singhasan, Yogendra @ Jogia, Ram Kewal & Arun Kumar arrived there out of whom Arun was armed with rifle while rest were armed with gun. Ram Kewal had fired upon them. Fortunately, further they could save themselves by slipping towards Chamartoli with a view to save their life. Shyam Narayan, Ram Singhasan, Yogendra @ Jogia, Ram Kewal & Arun Kumar arrived there out of whom Arun was armed with rifle while rest were armed with gun. Ram Kewal had fired upon them. Fortunately, further they could save themselves by slipping towards Chamartoli with a view to save their life. Then he had disclosed that on previous day there was some sort of commotion while they were watching dance of prostitute and during said course of dance Arun had assaulted over his head with a torch. During course of cross-examination he had said that he had shown his injury to the police official. In para-6 he had said that he alongwith Kusheshwar had gone to the place of Rajnandan and while they were talking with Rajnandan two or three steps away from his Darwaza, Ram Nath had arrived there and he was empty handed. No weapon was possessed by him. Ram Nath had threatened him and in midst thereof, firing was made. At para-7, he had disclosed that Rajnandan was present there at the time of firing. He alongwith Kumud had gone inside the house of Rajnandan. All the three had escaped therefrom and they had not chased the accused. At para-8 there happens to be contradiction. In para-10, he had disclosed that he had not gone to inform Gaurichak P.S. on 2.5.87 rather he had instructed his grandfather Ram Baran to inform the police station. Ram Baran had gone to P.S. Inspector had come on 2.5.87 at the village. He had inquired from him. He further disclosed that he had already divulged the names of accused to Ram Baran before leaving for P.S. He had not disclosed the names of witnesses. Ram Baran had gone to P.S. on 2.5.87 at about 9/9:30 A.M. So from his evidence, it is evident that he had already informed the police through his grandfather who had gone to the P.S. and in response thereof the police had come to the village. Ram Baran, his grandfather has however not been• examined and no explanation whatsoever has been put forward on behalf of prosecution for his non-examination. Ram Baran, his grandfather has however not been• examined and no explanation whatsoever has been put forward on behalf of prosecution for his non-examination. When this witness is specific and assertive on the point that he had already divulged the names of accused and when nature of offence happens to be cognizable then in that event, any information given by Ram Baran in normal course should have led into recording of Fardbeyan, which ought to have been made the basis of registration of F.I.R. However, again the prosecution happens to be silent on this score. 29. PW-7 has been tendered on behalf of prosecution. 30. PW-9 had deposed that on the alleged date and time of occurrence after hearing sound of firing he had gone towards that direction. When he reached near the house of Ram Pravesh, he had seen Naveen lying in the field of Ghuran. He had also seen Ram Kewal, Arun Kr. Singh, Ram Nath, Yogi Singh, Shyam Narayan, Ram Singhasan armed with gun and rifle out of whom Arun was armed with rifle. They were west to ditch. He had also seen Ram Kewal making fire over Kusheshwar. As he fled away, therefore, instead of Kusheshwar, the fire had hit at the chest of Deo Baran. Yogi also fired causing injury over hand of Deo Baran. On an order of Ram Singhasan, Shyam Narayan fired causing injury over leg of Deo Baran. Then thereafter, Deo Baran had fell down. He had gone near the injured. Thereafter, both the injured were taken to the NMCH where Naveen died. Kusheshwar had given his Fardbeyan in his presence over which he had put signature. He had shown place of occurrence to the I.O. He further disclosed that there was blood over the place where both injured had fallen. At para-5 there happens to be contradiction. At para-6 he had denied that it is wrong to say that there was blood at the field of Ghuran. Further, he disclosed that he had lifted Deo Baran with the help of Sunil, Ravi Shankar and Shashi. They had not gone to the hospital. He alongwith Gopal, Nageshwar, Madan Singh had gone to the hospital. Kusheshwar had gone bare foot. Naveen was taken by Sunil, Rajnandan, Shashi and Nathun. Further he disclosed that he had not said anyone to inform Gaurichak P.S. nor in his presence anybody had informed. They had not gone to the hospital. He alongwith Gopal, Nageshwar, Madan Singh had gone to the hospital. Kusheshwar had gone bare foot. Naveen was taken by Sunil, Rajnandan, Shashi and Nathun. Further he disclosed that he had not said anyone to inform Gaurichak P.S. nor in his presence anybody had informed. They had carried the injured person over a tempo. Then had denied the suggestion that he had taken the I.O. to Chamartoli then he had denied that he had not seen Kusheshwar fleeing away to the village. Then he had disclosed that while he was in a way to hospital alongwith Deo Baran, he met with Kusheshawar. 31. PW-13 happens to be the part I.O. who was entrusted with the investigation as per direction of S.P. later on. He is the person whose presence was also at the village on the alleged date of occurrence which had already been disclosed by the prosecution witnesses themselves. He took up investigation on 16.5.87. Then, he got the relevant documents (Farbeyan, inquest report, formal FIR) exhibited. He had arrested Ram Kewal, Yogendra @ Jogia, Ram Nath during course of investigation. He took further statement of informant Kusheshwar and injured Deo Baran Singh. He also prepared production-cum-seizure list of the material exhibit produced by Deo Baran Singh. On 24.5.87, he had visited the place of occurrence. He found field of lady's finger west to the place of occurrence. He received injury report on 13.6.87 of both the injured and then had submitted charge-sheet. He also exhibited material exhibit (Dhoti, Ganji, Gamchha). Then he had disclosed that he had submitted true copy of Sanha Nos. 20, 21, 22 dated 2.5.87 as per direction of Sessions Judge, Patna and got it marked "X" for identification. In para-8 he had disclosed that the field having lady's finger lies west to ditch. Then he had disclosed that the field of lady's finger was at lower level of five feet approximately than the place of occurrence. Then there happens to be contradiction with regard to the witnesses concerned. 32. So from his evidence it is evident that although he had visited the place of occurrence but failed to encircle and identify the exact place of occurrence by• pinpointing the same or by identifying the same through specific boundary. Then there happens to be contradiction with regard to the witnesses concerned. 32. So from his evidence it is evident that although he had visited the place of occurrence but failed to encircle and identify the exact place of occurrence by• pinpointing the same or by identifying the same through specific boundary. If his evidence is taken together with the evidence of other material PWs as referred above, from para-8 of his cross-examination, it is evident that he had shifted the place of occurrence east to ditch to west to ditch and by such way, he had completely changed the scenario belying prosecution version at least on this score and thus has given a fatal blow to prosecution case. Furthermore, from the evidence of this PW, it is also evident that although his presence has been shown by other PWs at the place of occurrence on the alleged date of occurrence but during course of his own evidence, he kept those parts in dark to the best reason known to him. It was expected from prosecution that it should have given a fair and true version to illuminate his status at least with regard to his presence on the alleged date of occurrence at the P.O.-Village Alawalpur well before Fardbeyan was recorded at N.M.C.H and further, no information regarding occurrence was divulged before him by anybody. The aforesaid mystery persisting in the case of the prosecution by having this PW examined on behalf of prosecution is certainly bound to give a severe jolt over the conduct of the prosecution. 33. PW-14 is 1st I.O. He in his examination-in-chief had said that on 2.5.87 he was O/C of Gaurichak P.S. On that day at about 10:30 A.M., he had recorded Fardbeyan of Kusheshwar at NMCH and got it exhibited as Ext.-3 and then transmitted it for registration of the case and exhibited his forwarding note. On the basis thereof, case was registered followed with recording of formal FIR. He had recorded further statement of Kusheshwar, injured informant. Then had disclosed that on the same day at about 9:00 A.M. he had heard rumour that on account of firing one person had died and another was taken to NMCH at Village-Alawalpur and on that very basis he had proceeded to NMCH after having Sanha entry no. 24. He had prepared inquest report of Naveen at NMCH and got it exhibited. 24. He had prepared inquest report of Naveen at NMCH and got it exhibited. He prepared dead body challan and sent the dead body for post mortem. He also recorded the statement of witnesses at the NMCH itself. Then he had disclosed that on the same day at about 12 O'clock, he had proceeded to P.O. alongwith Bijay Kumar Singh (PW-9) where he reached at 1:40 P.M. He inspected the P.O. as pointed by the Bijay. Then he described that P.O. lies at northern eastern flank of Village-Alawalpur which happens to be 25 yards south to the house of Lekhu Singh, 30 yards west to the house of Bhageru Singh and 50 yards north to the house of Manohar Singh. He had seen presence of blood at the place of occurrence. Chamartoli lies 200 yards away from that very place. He had also gone to Chamartoli. Then he returned back to the place of occurrence. He seized blood stained earth in presence of Shiv Kumar Singh and Suresh Singh and then returned back. On 3.5.87 at about 6:45 P.M. he had again visited Village-Alawalpur and recorded statement of Rajnandan. On 7.5.87, he had gone to NMCH and recorded statement of Deo Baran. He found Deo Baran in an injured condition and issued injury report. He also gone to the Village Alawalpur in search of accused persons. On 15.5.87, he had handed over charge to Punit Ram, Police Inspector. Then he had explained that if anybody comes to P.S. and gives Sanha then his signature is being obtained thereupon and in likewise manner when an injured comes to the P.S., injury report is being issued. Then he had denied the suggestion of the prosecution that during relevant period Jaikishun, retired Daroga was illegally working at the P.S. In para-10 he had disclosed that he could not record the statement of Deo Baran on account of having been unconscious and was at operation theatre but had fairly admitted that he had not mentioned the same in case diary. Then he had denied the suggestion of the prosecution that to favour the accused he had not shown the injury at left side of the injured. Then, he had admitted that there happens to be cutting over the name of Ram Nath and substituted by Ram Kewal in the case diary in the statement of witnesses. Then, he had exhibited the diary. Then, he had admitted that there happens to be cutting over the name of Ram Nath and substituted by Ram Kewal in the case diary in the statement of witnesses. Then, he had exhibited the diary. In para-12 he had disclosed that he had investigated Gaurichak P.S. Case No.31/87 which was registered on the Fardbeyan of Rasdeo Singh wherein charge-sheet was submitted against the accused. In that very case, the chargesheet was submitted against the persons belonging to Chamartoli wherein Yogendra @ Jogia happens to be one of the witnesses. Then he had exhibited page no. 31, serial no. 64 of register dealing with non FIR cases. Then he had said in para-15 that he had seen mark of blood at only one place but he had not mentioned the exact place. Further, he admitted that although there was seizure but seizure list is not on the record. He had not found pellet, empty cartridge, etc. at the place of occurrence. Then, he had disclosed that he had seen the land of Ghuran Singh. He had not found blood. Then, there happens to be contradiction of the relevant witnesses. At para-28 had disclosed that the land lying to the west of ditch is at lower level than the land lying east to the ditch at the place of occurrence about 6-7 feet. The court had given a remark that this witness had divulged the aforesaid fact beyond the case diary. 34. Whatever status happens to be as perceived by the Court during course of cross-examination the fact remains that the place of occurrence was shown by Bijay to this witness and from his evidence again it transpires that no exact location of the place of occurrence has been identified by this PW also. 35. Therefore, these two police officials, that means to say, the investigating authority, PWs-13 and 14 could not be able to locate and identify the place of occurrence and that happens to be reason behind that the prosecution witnesses also on that very score did not appear to be fair. There happens, to be fluctuation on this score. Not only this, the material witnesses have totally failed to locate the actual place of occurrence and whether it happens to be east to the ditch or west to the ditch. There happens, to be fluctuation on this score. Not only this, the material witnesses have totally failed to locate the actual place of occurrence and whether it happens to be east to the ditch or west to the ditch. When there happens to be inconsistency over the place and as the PW-8, PW-11 had stated with regard to their assault at the hands of accused at the east of the ditch while from cross-examination alongwith evidence other witnesses, they had shown it to be west of the ditch and in that view of the matter, one cannot put reliance over the manner of occurrence as well as genesis of occurrence. That means to say, the evidence of the witnesses in their independent capacity as well as in their cumulative effect, have not been able to stick over the manner of occurre!1ce, genesis of occurrence, place of occurrence consistently and consequent thereupon, their evidence cannot be accepted as creditworthy and unimpeachable. Apart from this, the conduct of the prosecution has also to be noted down. PW-5 and PW-6 have categorically brought presence of police officials more particularly PW-13 at the scene. PW-6 had gone to such extent by saying that he had sent his grandfather to P.S. for informing the police having names of accused disclosed and the police had also arrived in the village on such information. In that event, concealing and suppressing those parts certainly gives an impression that prosecution has not come with clean hand. Not only having the inference to that extent rather it speaks out regarding deliberate action of the prosecution in getting those documents out of screen and in absence thereof, one and only inference would be drawn against the prosecution inasmuch as had it brought up the document marked 'X' for identification on record the same must have gone against the prosecution. Thus, in view of aforesaid meticulous examination as well as minute observation of the materials in consonance with the evidences on record it is difficult to approve the findings conclusion arrived by the trial court that the prosecution has proved its case beyond reasonable doubt. 36. Consequent thereupon, the findings arrived at by the trial court for conviction and sentence of the appellants is unsustainable both on fact and on law. The appeal is allowed and the impugned judgment of conviction and sentence of the appellants• is set aside. 36. Consequent thereupon, the findings arrived at by the trial court for conviction and sentence of the appellants is unsustainable both on fact and on law. The appeal is allowed and the impugned judgment of conviction and sentence of the appellants• is set aside. The appellants are on bail and they are accordingly discharged from liability of their bail bonds.