JUDGMENT A.K. LAL, J. All these appeals have been preferred against the judgment of conviction and order of sentence dated 17.03.2003 passed by the learned Additional Sessions Judge, F.T.C., Bhagalpur in Sessions Trial No.640 of 1996/ Trial No.85 of 2002 by which all the appellants have been convicted and sentenced to undergo rigorous imprisonment for life under Sections 302/149 of the I.P.C., rigorous imprisonment for two years under Section 148 of the I.P.C. and three years under Section 27 of the Arms Act. It has been directed that all the sentences to run concurrently. 2. Since all the appellants have been convicted and sentenced as aforesaid in Sessions Trial No.640/1996 arising out of Sabour (Lodipur) P.S. Case No.266 of 1995, as such, they have been heard together and are being disposed of by this common judgment. 3. The prosecution case, in brief, is that on 8.12.1995 at about 7.00 A.M., the informant Amit Kumar @ Hilter (P.W.5) alongwith his uncle Surya Narayan Yadav (deceased), his brother Suman Yadav (P.W.3) and one labourer Lelho Paswan (not examined) proceeded from his house towards his field situated at Rahuwa Mauza. They were carrying seeds of wheat with them. When they reached at their field at about 8.00 A.M., the tractor driver alongwith tractor were present there from before. After sowing the seeds, the informant (P.W.5) alongwith his uncle Surya Narayan Yadav (deceased) proceeded for Bhagalpur at about 9.00 A.M. for some urgent works and when they covered a distance of about 500-700 yards to come on pitch road, they saw about 8 to 10 persons variously armed were coming to them from behind in running state by shouting “SALE SABKO PAKRO” and so they started fleeing away and in that position, the informant turned behind and saw that all the appellants alongwith three other miscreants namely, Rabindra Yadav, Satyendra Yadav and Ganesh Yadav were armed with deadly weapons. All of them surrounded his uncle Surya Narayan Yadav (deceased) and shot fire at him. As a result of which, he fell down and began trampling. In the meantime, Ganesh Yadav shot fire from his rifle. Thereafter, all of them, escaped towards southern side. Thereafter, the informant and his brother Suman Yadav (P.W.3) saw that his uncle had fire shot injuries and was lying dead in a pool of blood. The occurrence was also seen by the persons working in the field. In the meantime, Ganesh Yadav shot fire from his rifle. Thereafter, all of them, escaped towards southern side. Thereafter, the informant and his brother Suman Yadav (P.W.3) saw that his uncle had fire shot injuries and was lying dead in a pool of blood. The occurrence was also seen by the persons working in the field. The informant sent his brother Suman Yadav (P.W.3) to his house to inform about the occurrence. After some time, the Officer-in-charge of the Lodipur Police Station came there and recorded the fardbeyan of the informant. The reason for the occurrence is that about 2 and half months ago, his uncle (deceased) had deposed in the court against the accused. The fardbeyan was witnessed by Duryodhan Yadav (not examined). On the basis of aforesaid fardbeyan, Sabour (Lodipur) P.S. Case No.266 of 1995 was instituted for the offence punishable under Sections 147, 148, 149 and 302 of the I.P.C. and Section 27 of the Arms Act. After investigation, charge-sheet was submitted showing accused Ganesh Yadav, Rabindra Yadav and Satyendra Yadav as absconders. Cognizance was taken and the case was committed to the court of sessions. The charges were framed against all the appellants to which they denied and claimed to be tried. The defence has pleaded not guilty and the accused Dhananjay Yadav and Arjun Yadav have also taken a plea of alibi by stating that they were present in their respective offices at the time of alleged occurrence. After the trial, all the appellants have been found guilty and have been convicted and sentenced as aforesaid. 4. The learned counsel for the appellants has submitted that the impugned judgment and order of conviction passed by the learned trial court is illegal, unwarranted and unsupported by the material on record. Lelhu Paswan, who was an important witness, has not been examined by the prosecution nor there has been any explanation for his non-examination. From the evidence of P.W.2, it appears that he is completely ignorant as to how Surya Narayan Yadav (deceased) was murdered. No blood was found at the place of occurrence. The learned trial court has failed to appreciate that no overt act has been alleged against the appellants. From the evidence of P.W.2, it appears that he is completely ignorant as to how Surya Narayan Yadav (deceased) was murdered. No blood was found at the place of occurrence. The learned trial court has failed to appreciate that no overt act has been alleged against the appellants. The learned trial court has also failed to appreciate that only co-accused Satyendra Yadav, Rabindra Yadav and Ganesh Yadav have been alleged in the fardbeyan to have fired upon the deceased, therefore, the appellants only can be said to be the members of unlawful assembly. 5. The learned counsel for the State has submitted that the trial court has considered the material on the record. Lelhu Paswan, one of the eye witnesses of the occurrence could not have deposed against the appellants due to their fear. 6. This Court is required to reappraise the prosecution evidence and to consider as to whether the prosecution has been able to substantiate its case beyond shadow of all reasonable doubts. 7. The prosecution has examined the following witnesses to prove its case: P.W.1 Dev Kumar Yadav, P.W.2 Bhikhari Ram, P.W.3 Suman Kumar, P.W.4 Niranjan Yadav, P.W.5 Amit Kumar, P.W.6 Dr. Kailash Jha and P.W.7 Ashok Kumar Thakur, the Investigating Officer. 8. P.W.1 has stated that on the date and time of occurrence, he was in his field at Rahua Chowk. Lelhu Paswan came there running and on his query, he stated that Surya Narayan Yadav was surrounded. In the meantime, he heard sound of three fire shots. He rushed towards the sound and saw that Dhananjay Yadav, Mahendra Yadav, Satyendra Yadav, Rabindra Yadav, Ganesh Yadav, Arjun Yadav, Pawan Yadav, Uday Yadav and Nityanand Yadav armed with rifles were running towards southern side. Out of fear, he hid himself. Thereafter, he went to the place of occurrence and saw that Surya Narayan Yadav (deceased) was lying dead in pool of blood. Duryodhan Yadav (not examined) and Amit Kumar (P.W.5) were there. There were also several persons. In his cross-examination, he has stated that he saw the dead body of Surya Narayan Yadav in the eastern side of Kurha River. The place of occurrence is in the southern side of the pitch road. He has heard that Niranjan Yadav (P.W.4) and Mohan are the convicts of a murder case. He does not know as to whether both of them were at that time. The place of occurrence is in the southern side of the pitch road. He has heard that Niranjan Yadav (P.W.4) and Mohan are the convicts of a murder case. He does not know as to whether both of them were at that time. His statement was taken by the police officer. He had reached at the place of occurrence after an hour of the occurrence. He has stated that he does not know as to whether the villagers are divided in groups. 9. P.W.2 has stated that in 1995, he was the driver of the tractor of Kesho Yadav and had gone to plough the field of Surya Narayan Babu (deceased). He does not know about the murder of Surya Narayan Yadav (deceased). Lelho Paswan had come to him in the field with servant of Surya Narayan Yadav. Surya Narayan Yadav left the field telling him that his servant had come and he was going to Bhagalpur. In his cross-examination, he has stated that Surya Narayan Yadav with Lalho Yadav had gone to the field to get the field ploughed besides them there was no one in the field. Surya Narayan Yadav started for Bhagalpur at 11.00A.M. alone. After half an hour, there was sound of firing. Lelho Paswan told him that on that date, his master (Surya Narayan Yadav) could be killed. P.W.2 told him that he is helpless. Lelho Paswan also showed his helplessness. Lelho Paswan informed the members of his family. He has further stated that he saw Hilter Yadav (P.W.5), Niranjan Yadav and others members of his family going. He returned to his house. 10. P.W.3 is the cousin brother of the informant. He has stated that the occurrence took place at 9.15 A.M. on 8.12.1995. He, his father Surya Narayan Yadav, Amit Kumar (P.W.5), Lelho Paswan (not examined) had started from his house to his field at Rahua Chowk to sow wheat. The tractor was present in the field prior to their arrival in the field. The tractor belonged to Kesho Singh. The seeds were sown in the field. Thereafter, he, his uncle (deceased), brother Amit Kumar (P.W.5) started to go to Bhagalpur to purchase fertilizers. When they reached near the field of Ganesh Yadav, 8 to 10 persons came from behind raising alarm to catch. The tractor belonged to Kesho Singh. The seeds were sown in the field. Thereafter, he, his uncle (deceased), brother Amit Kumar (P.W.5) started to go to Bhagalpur to purchase fertilizers. When they reached near the field of Ganesh Yadav, 8 to 10 persons came from behind raising alarm to catch. They were Dhananjay Yadav, Mahendra Yadav, Pawan Yadav, Uday Yadav, Nityanand Yadav, Arjun Yadav, Ganesh Yadav, Ravindra Yadav and Satyendra Yadav. They were armed with rifle, gun and musket. Out of fear, P.W.3 and others started running away in the northern side. Since his uncle was an old man, he could not run. He looked behind and saw that Satyendra Yadav and Ravindra Yadav (not the appellants) shot fired at his uncle (deceased). He fell down. Thereafter, Ganesh Yadav shot fire. Again the accused persons shot fire and moved towards southern side. He and Amit Kumar (P.W.5) returned to his uncle and saw that he was lying dead in the pool of blood. Thereafter, he went to his house and informed the members of the family and returned to the place of occurrence. He saw that at the place of occurrence, the police personnel were present. He has further stated that two and half months ago, his uncle (deceased) had deposed in the case of three murders in which Dhananjay Yadav was an accused. In his cross-examination, he has admitted that P.W.4 Niranjan Yadav is his own uncle. P.W.5 Amit Kumar is his cousin brother. Witness Saryug Pd. Yadav is his Mausera brother of his father. Witness Lelho Paswan is his servant. Witness Janardan Yadav is the Mamera brother of his father. He has further stated that he is in Bihar Police Service and posted at Hajipur. He has no knowledge as to how many murders have been committed in his village. He has admitted that his uncle Niranjan Yadav (P.W.4) and his father are convicts. Niranjan Yadav (P.W.4) is in jail custody. He does not know whether his uncle and father are accused in how many criminal cases. He is not an accused in any case. He has stated that he does not know as to whether he has been declared as absconder in Jagdishpur P.S. Case No.27 of 1996 and Lodipur P.S. Case No.213 of 1995. In paragraph 6, he has stated that he did not tell about the occurrence except the police. He is not an accused in any case. He has stated that he does not know as to whether he has been declared as absconder in Jagdishpur P.S. Case No.27 of 1996 and Lodipur P.S. Case No.213 of 1995. In paragraph 6, he has stated that he did not tell about the occurrence except the police. At the time of occurrence, his uncle Niranjan Yadav (P.W.4) and his father were in service. All the four brothers lived together. In paragraph 11, he has stated that when he saw the accused for the first time, they were at a distance of 200 yards in the southern side. They were running and making noise. He felt apprehension and ran towards the pitch road. No one followed him nor any one shot fire at him. He has denied the suggestion of the defence that on the date and time of occurrence, he was not present at the place of occurrence. 11. P.W.4 is the father of the informant (P.W.5). He has stated that the occurrence took place on 9.00 A.M. on 8.12.1995. He was in his village. Lelhu Paswan came and told that deceased Surya Narayan Yadav was being followed by the accused persons to kill him. He ran to his field and saw that the accused persons were escaping armed with weapons. They were armed with firearms. He went to the place of occurrence where the deceased was lying dead. Amit and Suman told the names of assailants as Ganesh Yadav, Ravindra Yadav and Satyendra Yadav. In his cross-examination, he has stated that he is in jail custody in the case of murder of Ranjeet Yadav. He has further stated that he does not know as to whether Rajeet Yadav was the Bhagina of the accused Dhananjay Yadav. He has admitted that the accused Mahendra Yadav is a witness in the case of the murder of Ranjeet Yadeav. In paragraph 3, he has stated that at the time of occurrence, he was in service in State Bank of India in the district of Banka. His duty was from 9.00 A.M. to 5.30 P.M. He has also his place of abode there. Some times he used to come to his house. In paragraph 4, he has stated that Lelho Paswan did not inform him at his house. He met him in the way. He has been cross-examined at length. His duty was from 9.00 A.M. to 5.30 P.M. He has also his place of abode there. Some times he used to come to his house. In paragraph 4, he has stated that Lelho Paswan did not inform him at his house. He met him in the way. He has been cross-examined at length. He has also admitted that he has not seen the occurrence. It appears that evidence of this witness is full of vital contradictions and does not inspire confidence. His evidence is not trustworthy and cannot be relied upon. 12. P.W.5 is the informant of this case. He has stated that on the date of occurrence, his uncle (deceased) and labourer Lelho Paswan taking wheat seed went to the field at Rahua Mauza. After sowing the seed and cultivated by the tractor, he, Suman (P.W.3) and his uncle (deceased) were going to purchase fertilizers. As soon as they went ahead 500 to 600 yards from his field in the northern side, 8-10 persons raising alarm from the southern side followed them. They started running away. In course of running, he saw that Dhananjay Yadav, Mahendra Yadav, Arjun Yadav, Satyendra Yadav, Pawan Yadav, Uday Yadav, Nityanand Yadav, Ravindra Yadav and Ganesh Yadav armed with various weapons were following them. Since his uncle was an old man, he was caught in the field of Ganesh Singh by the accused. Satyendra Yadav and Ravindra Yadav shot fire at him, as a result of which, he fell down. In the meantime, Ganesh Yadav shot fire at the deceased and all the accused went towards the southern side. Thereafter, he and Suman (P.W.3) returned to the deceased and saw him lying dead in pool of blood. He sent P.W.3 to his house to inform. He has stated that the reason for the occurrence is that two and half months ago, his uncle (deceased) had deposed in the court in a case of three murders against the accused. The persons working in the nearby field also saw the occurrence. In the meantime, the police came there and enquired about the occurrence. He gave information to the police which was recorded. It was witnessed by Duryodhan Yadav, who was later on killed by the accused. He has identified his signature on the fardbeyan (Ext.1). He has also been cross-examined at length. In the meantime, the police came there and enquired about the occurrence. He gave information to the police which was recorded. It was witnessed by Duryodhan Yadav, who was later on killed by the accused. He has identified his signature on the fardbeyan (Ext.1). He has also been cross-examined at length. He has also admitted in paragraph 7 of the cross-examination that his father P.W.4 is in Camp Jail, Bhagalpur for a year as he is a life convict in the case of murder of Ranjeet Yadav. From the cross-examination, it appears that accused Pawan Yadav, Uday Yadav, Satyendra Yadav and Nityanand Yadav are the relatives of Ranjeet Yadav. It further appears from the evidence of P.W.5 that the appellants are not the assailants of the deceased. According to the evidence of P.W.5, the assailants are Satyendra Yadav, Ravindra Yadav and Ganesh Yadav, who are not the appellants. 13. P.W.6 is the doctor, who had held the post-mortem examination on the dead body of Surya Narayan Yadav, aged about 60 years on 9.12.1995 and found the following ante-mortem injuries : (i) Firearm wound of entry on left thigh mid zone medical size 1 c.m. round into soft tissue of thigh. (ii) Firearm wound of exist on posterior side medical aspect at mid zone thigh. Size 2 c.m. round inverted margin and thigh dragged and continuous to injury no.1. (iii) Firearm wound of entry on right thigh mid zone size 1 c.m. round into soft tissue. (iv) Firearm wound of exit at posterior part of right thigh. Size 2 ½ c.m. x 2 c.m. Inverted margin continuous to injury no.3. (v) Firearm wound of entry at lower end of right thigh lateral aspect 3 ½” above scapular head. Size 1 ½ c.m. round into soft tissue inverted margin. (vi) Firearm wound of exit nearly five irregularly round 3 c.m. x 2 ½ c.m. into tissue inverted which is continuous with injury no.5 at popliteal foca behind knee joint. On dissection: All three projectiles passed off the body. Dissection of trunk- Heart empty, lungs and other viscera pale, stomach contains fluid and digested compounds about six ozs. On Neck- Nothing particular. On head, meninge and brain congested. In the opinion of the doctor, all above injuries were ante-mortem caused by firearm from distant range. Cause of death :- Shock and haemorrhage and time since post-mortem examination about 24 hours. On Neck- Nothing particular. On head, meninge and brain congested. In the opinion of the doctor, all above injuries were ante-mortem caused by firearm from distant range. Cause of death :- Shock and haemorrhage and time since post-mortem examination about 24 hours. The post-mortem examination report has been marked as Ext.2. In his cross-examination, he has stated that there would be profused bleeding due to the injuries found on the person of the deceased. 14. P.W.7 is the Investigating Officer. He has stated that on 8.12.1995, he was posted as Officer-in-charge of Lodipur Police Station. After hearing the rumour, he went to the place of occurrence prepared the inquest report of the dead body of Surya Narayan Yadav (Ext.3). Basudeo Yadav and Duryodhan Yadav (both not examined) witnessed the inquest report. He recorded the fardbeyan of Amit Kumar @ Hitler (P.W.5) and sent the fardbeyan for instituting case at Sabour police station. He took the statement of the witnesses and visited the place of occurrence where the dead body of the deceased was lying. He noticed that a woollen wrapper was under the head of the deceased. The place of occurrence was the land of Ganesh Singh. An empty cartridge was recovered. Bloodstain soil was seized. Seizure list was prepared. After getting the post-mortem examination report he submitted the charge-sheet. In his cross-examination, he has stated that he has not mentioned in the case diary from whom he got the rumour about the occurrence. In paragraph 11, he has stated that Niranjan Yadav (P.W.4) did not state before him that Lelhu Paswan told P.W.4 that deceased was chased to kill by Dharmendra, Mahendra, Pawan, Uday, Arjun, Ganesh, Ravindra, Satyendra and Nityanand Yadav. Amit and Suman came there and they also narrated the names of the persons killing the deceased. 15. D.W.1 Heera Mandal has been examined on behalf of defence. P.W.1 has stated that Niranjan Yadav (P.W.4) was guard in the State Bank of India on 8.12.1995. His signature in the register his arrival time is 10.00 A.M. He identified the writing and signature of P.W.4, which has been marked as Ext.A. No other evidence has been adduced on behalf of the defence. 16. P.W.1 has stated that Niranjan Yadav (P.W.4) was guard in the State Bank of India on 8.12.1995. His signature in the register his arrival time is 10.00 A.M. He identified the writing and signature of P.W.4, which has been marked as Ext.A. No other evidence has been adduced on behalf of the defence. 16. After hearing the learned counsel for both the parties and after considering the evidence adduced on behalf of both the parties, it appears from the evidence of P.W.1 that Lelho Paswan came to him and told him that Surya Narayan Yadav had been surrounded. Thereafter, there was three sound of firing and saw the accused running away armed with firearms. It appears that he has not seen the occurrence nor Lelho Paswan who had given information to P.W.1 has been examined. P.W.2 has not supported the prosecution case. P.W.3 has stated that the names of the assailant as Satyendra Yadav, Ravindra Yadav and also Ganesh Yadav who have not faced the trial. P.W.4 is hearsay witness. His presence on the place of occurrence is also creating doubt. P.W.5 has also named Satyendra Yadav, Rabindra Yadav and Ganesh Yadav as the assailants of the deceased. From the evidence, it appears that Surya Narayan Yadav (deceased) was killed by firearms which stand corroborated by the medical evidence, from the prosecution evidence; it appears that the appellants are not the assailants. The prosecution witnesses have named other accused as assailants who have not faced the trial. 17. It appears from the evidence of prosecution witnesses that there is enmity between the appellants and Niranjan Yadav (P.W.4) and members of his family as Niranjan Yadav and his brother are the assailants and convicts in the case of murder of Ranjeet Yadav who was the relative of the appellants. P.W.4 Niranjan Yadav and his son (P.W.5) have also admitted that Niranjan Yadav (P.W.4) is an accused in the murder of Ranjeet Yadav and Niranjan Yadav (P.W.4) is in custody as a life convict. 18. It further appears that Lelho Paswan, a servant of the informant was also with the deceased Surya Narayan Yadav. P.W.4 Niranjan Yadav and his son (P.W.5) have also admitted that Niranjan Yadav (P.W.4) is an accused in the murder of Ranjeet Yadav and Niranjan Yadav (P.W.4) is in custody as a life convict. 18. It further appears that Lelho Paswan, a servant of the informant was also with the deceased Surya Narayan Yadav. It appears from paragraph 19 of the impugned judgment that Lelho Paswan has not been examined in this case out of fear of the accused as on 29.09.2002, the learned Additional Public Prosecutor has filed a petition in the court that some public witnesses named therein are hesitant to attend the court to depose out of fear and so it cannot be said that the prosecution purposely suppressed these witnesses. Mere presentation of an application by the prosecution that a certain witness had been won over or is unable and unwilling to depose in the case is not conclusive of the allegation. 19. It appears that Lelho Paswan was an important witness to the prosecution as he was with the deceased, but he has not been examined. It is true that all the witnesses of the prosecution need not be called, but it is important to notice that the witness whose evidence is essential to the unfolding of the narrative should be called and this salutary principle is essential to be followed in criminal trials. This principle has been stressed by the Hon’ble Supreme Court in several cases and also in case of State of U.P. and another Vs. Jaggo @ Jagdish and others reported in 1971 CRI. L.J. 1173= AIR 1971 Supreme Court 1586. It is better to quote paragraph 16 of the said judgment : “This Court in Habeeb Mohammad's case, 1954 SCR 475 = ( AIR 1954 SC 51 ) (supra) referred to the observations of Jenkins, C. J. in Ram Ranjan R v. Emperor, ILR 42 Cal 422 = (AIR 1915 Cal 545) that the purpose of a criminal trial is not to support at all costs a theory but to investigate the offence and to determine the guilt or innocence of the accused and the duty of a public prosecutor is to represent the administration of justice so that the testimony of all the available eye-witnesses should be before the Court. Lord Roche in Stephen Seneviratne v. The King. Lord Roche in Stephen Seneviratne v. The King. AIR 1936 PC 289, referred to the observations of Jenkins, C. J. and said that the witnesses essential to the unfolding of the narrative on which the prosecution is based must be called by the prosecution whether the effect of their testimony is for or against the case for the prosecution. That is why this Court in Habeeb Mohammad's case. 1954 SCR 475 = ( AIR 1954 SC 51 ) (supra) said that the absence of an eyewitness in the circumstances of the case might affect a fair trial. On behalf of the appellant it was said that Ramesh Chand was won over and therefore the prosecution could not call Ramesh. The High Court rightly said that the mere presentation of an application to the effect that a witness had been won over was not conclusive of the question that the witness has been won over. In such a case Ramesh could have been produced for cross-examination by the accused. That would have elicited the correct facts. If Ramesh were an eye-witness the accused were entitled to test his evidence particularly when Lalu was alleged to be talking with Ramesh at the time of the occurrence”. 20. Considering the facts and circumstances stated above, we find and hold that the prosecution has failed to substantiate its case beyond all reasonable doubts. The appellants are entitled to get the benefit of doubts. Accordingly, the impugned judgment of conviction and order of sentence is set aside. The appellants are acquitted by giving them the benefit of doubts. They are discharged from the liabilities of their bail bonds. 21. In the result, all these appeals are allowed. Appeals allowed.