JUDGMENT Per Amaresh Kumar Lal, J.- Criminal Appeal No. 51 of 1990 (DB) filed on behalf of the appellants Binda Gope and Rajju Singh and Criminal Appeal No. 52 of 1990 (DB) filed on behalf of the appellant Vijay Paswan have been preferred against the judgment of conviction and sentence dated 18th December 1989 passed by the learned 6th Additional Sessions Judge, Nalanda at Biharsharif in Sessions Trial No. 358 of 1987/11 of 1989 by which appellants Binda Gope and Vijay Paswan have been convicted under Section 302/34. IPC and appellant Rajju Singh has been convicted under Section 302, IPC and they have been sentenced to undergo rigorous imprisonment for life. Since both the appeals arise out of common judgment dated 18th December 1989 passed in the aforesaid Sessions trial, as such they have been heard together and are being disposed of by this common judgment. 2. The prosecution case, in brief, is that Sitaram Pandey informant (PW 4) had gone to bathan (cattle shed) of Mochhu Saw (not examined) in the evening of 31.3.1987 at about 7 p.m. he heard the noise of firing and saw that many co-villagers had assembled and sound of firing was coming out from his house. After firing he entered into the house and saw that his wife Ahilaya Devi (deceased) was lying dead and his sons Balmiki Pandey (PW 3) aged about 11 years and Parsuram Pandey (PW-1) aged about 9 years were weeping. On query, both of them stated that they were taking meal with their mother (deceased). In the meantime, seven persons entered into the house out of them they identified Rajju Singh, Vijay Paswan and Binda Gope (appellants) of village Mai Farida. All the assailants were wearing kurta and.paijama and were armed with rifle and pistol. After seeing them the wife of the informant fled away and they followed her. Vijay Paswan, Rajju Singh and Binda Yadav chased and caught hold of her. Vijay Paswan instigated to kill her. Rajju Singh caught hold of her head. Binda Yadav also caught her. Vijay Paswan exploded a bomb which caused instant death of the deceased. Both the sons of the informant went to the roof and saw the occurrence. Villagers came there and followed the culprits but they escaped. It has been further stated that the informant has no enmity with any person. Binda Yadav also caught her. Vijay Paswan exploded a bomb which caused instant death of the deceased. Both the sons of the informant went to the roof and saw the occurrence. Villagers came there and followed the culprits but they escaped. It has been further stated that the informant has no enmity with any person. The fardbeyan of the informant (PW 4) was recorded by S.I. Mahesh Singh (PW 5) of Rahui Police Station on 1.4.1987 at 2 a.m. at village Mai Farida. On the basis of fardbeyan Rahui P.S. Case No. 28 of 1987 was registered for the offence punishable under Sections 302/34, IPC. First informant report (Ext. 3/1) and fardbeyan (Ext. 3) were received in the office of learned Chief Judicial Magistrate on 1.4.1987. After investigation charge-sheet was submitted and the case was committed to the Court of sessions. Charge under Section 302. IPC was framed against the appellant Rajju Singh and charge under Sections 302/34. IPC was framed against the appellants Binda Gope and Vijay Paswan to which they denied and claimed to be tried. 3. The defence of the accused is that they have been falsely implicated in this case and the informant is a puppet of Sitaram Pandey, Advocate. The informant was running a grocery shop in his house in which he used to sell country made liquor and his wife Ahilya Devi (deceased) was a lady of doubtful character who had illicit relation with Baleshwar Singh an ex-Mukhiya, eldest brother of said Sitaram Singh. The factum of death of the deceased has not been challenged but their plea is that the family members of the said Baleshwar did not relish the illicit connection of Baleshwar Singh with the deceased and it has been indirectly suggested hat the son of Baleshwar Singh namely, Madan Singh. one Mahesh Choudhary and Chandu had their hands in this occurrence, who had been seen after the occurrence running at some distance from the house of the informant with fire-arms and bombs. It has also been pleaded that the son of Sardar Bangali Singh namely. one Mahesh Choudhary and Chandu had their hands in this occurrence, who had been seen after the occurrence running at some distance from the house of the informant with fire-arms and bombs. It has also been pleaded that the son of Sardar Bangali Singh namely. Triloki Singh was murdered and a case was filed against Sitaram Singh, Baleshwar Singh, Madan Singh & others which was registered as Rahui (Wena) P.S. Case No. 34 of 1986 and the present appellant Razzu Singh is the son of said Sardar Bangali Singh and the accused Vijay Paswas is his Barahil (worker) and Binda Singh is also the own man of Rajju Singh and they have been falsely implicated in this case at the instance of ex-mukhiya and his brother Sitaram Singh out of grudge and enmity. In support of their case the defence has also examined six witnesses. After trial the Trial Court has found the appellants guilty and sentenced them as aforesaid. 4. Now this Court is required to reappraise the evidence to see as to whether the prosecution has been able to prove its case beyond shadow of all reasonable doubts? 5. The prosecution has examined following witnesses in support of its case:- PW 1 Parsuram Pandey, PW 2 Dr. Girija Shankar Das, PW 3 Balmiki Pandey, PW 4 Sitaram Pandey, PW 5 Mahesh Singh, and PW 6 Sitara Khan., Ext. 1 is the postmortem report, Ext. 2 is the carbon copy of Inquest Report, Ext. 3 is fardbeyan, Ext.3/1 is the formal FIR. Ext. 4 is the seizure-list. Ext. 5 is Sanha Entry No. 1 dated 1.4.1987, Exts. 6 and 6/1 are the depositions of Balmiki Pandey and Parsuram Pandey recorded under Sections 164 Cr PC. Ext. X is the protest petition. 6. The defence has examined the following witnesses:- DW 1 Shivnarain Pandey, DW 2 Bilash Yadav, DW 3 Bhola Pandey, DW 4 Birendra Paswan, DW 5 Srideo Paridey, DW 6 Md. Sahab Akhtar, Ext. A is the supervision note of Dy. S.P. 7. For proper appreciation the evidence of PW 2 Dr. Girija Shankar Das is being discussed. 6. The defence has examined the following witnesses:- DW 1 Shivnarain Pandey, DW 2 Bilash Yadav, DW 3 Bhola Pandey, DW 4 Birendra Paswan, DW 5 Srideo Paridey, DW 6 Md. Sahab Akhtar, Ext. A is the supervision note of Dy. S.P. 7. For proper appreciation the evidence of PW 2 Dr. Girija Shankar Das is being discussed. He has stated that on 1.4.1987 he was posted as Civil Assistant Surgeon at Sadar Hospital Biharsharif and held the post-mortem examination on the dead body of Ahilya Devi, the wife of Sitaram Pandey (PW 4) of village Mai Farida P.S. Rahui and has found following ante-mortem injuries on the dead body of Ahilya Devi :- (i) 1/2" diameter punctured lacerated wound with blackened margin inverted wound on the forehead 1 /2" lateral to the right frontal area of the skull. (ii) Wound of entry 2" x 1/2" on the right side of the perital temporal region lacerated wound with everted margin. (iii) Both injuries of entry and exit were communicating. (iv) On dissection fracture of the right frontal & right temporal perital bone of the skull with blood clot present in the right side of the brain substances extra dural surface of the skull with laceration of the right side of the brain substance. (v) Lungs pale, heart empty & pale, all abdominal vecera pale, stomach partly digested found material present in bladder, empty uterous normal. (vi) large intestine contained gas & fiscal material. (vii) Genetation intact. (viii) Cause of deati1 was due to shock & haemorrhage caused by above mentioned injury No.1 was caused by fire-arm. Time elapsed since death between 18 to 30 hours. The post-mortem report has been marked as Ext. 1. In his cross-examination he has stated that injury of entry and exit was from one shot. Rigor mortis present in upper and below limbs. 8. According to fardbeyan itself the informant was not an eye witness, According to him, his two sons (PWs 1 and 3) are eye witnesses of the occurrence. PW 1 has stated that he is aged about 10 years. He has further stated that in the evening at the time of occurrence his elder brother (PW 3 and mother (deceased) were taking meal in the courtyard. A person peeped. Thereafter, 5-6 persons entered inside the courtyard and he identified Vijay. Rajju and Binda out of them. PW 1 has stated that he is aged about 10 years. He has further stated that in the evening at the time of occurrence his elder brother (PW 3 and mother (deceased) were taking meal in the courtyard. A person peeped. Thereafter, 5-6 persons entered inside the courtyard and he identified Vijay. Rajju and Binda out of them. Binda and Rajju were armed with pistol and one person was keeping bomb in his hand. At that time an earthen lamp was burning and it was also a moon-lit-night. Rajju caught hold of her mother and Binda also caught hold of her. Vijay instigated them to shoot. thereafter; Rajju shot fire at his mother which hit at her head. He fell down and died. There was profused bleeding. He and his brother went to the roof of the house and raised alarm. His father (PW 4), Mochhu Saw. Chandu Mahto, Baleshwar Mahto, Madan Singh and Mohan Chaudhary (none of them examined) came there. He narrated about the occurrence to his father and others. In the night itself, the police officer came there and enquired into the matter from him and his brother. The Police Officer also took the statement of his father (PW 4). The police officer took the empty cartridge only. In his cross-examination he has stated that there is one room in the eastern side which opens towards rasta. In the northern side there are three rooms only one room has plank and two rooms are without plank. There is also one thatched room which is used as kitchen. All the three accused are his co-villagers. Vijay is the worker of Rajju singh. He does not know as to whether Binda ploughed the field of Rajju Singh. The house of Baleshwar Singh, ex-mukhiya is in the northern side. Baleshwar Singh is the brother of Sitaram Babu, Advocate. He has further stated that he has narrated the entire occurrence to his father which he has deposed in the Court. He has also stated that he has told his father that assailants shot fire and also exploded bomb. 9. PW 3 Balmiki Pandey aged about 12 years is the son of the informant and the deceased. He has stated that at the time of occurrence he his mother and brother (PW 1) were taking meal. In the meantime, Vijay Gope peeped. Thereafter, others entered into the courtyard. 9. PW 3 Balmiki Pandey aged about 12 years is the son of the informant and the deceased. He has stated that at the time of occurrence he his mother and brother (PW 1) were taking meal. In the meantime, Vijay Gope peeped. Thereafter, others entered into the courtyard. It was moon-lit night and an earthen lamp was also burning. He identified Vijay. Rajju and Binda out of them. Vijay was having bomb and Rajju and Binda were armed with pistol. Binda shot fire at his mother which did not hit her. She ran to chulha, Rajju caught hold of his mother but she was not caught, Binda caught hold of her. She fell down and Vijay caught hold of her hair locks. At the instigation of Vijay, Rajju shot fire upon his mother. At that time, his father had gone to Mochhu Saw for worship. He told his father that Rajju, Vijay and Binda killed his mother. Police officer came to his house in the night and also taken his statement. He has further stated that he made the statement before the Magistrate. He was also cross-examined at length. In his cross-examination he has stated that her mother fell down facing mouth and in that condition she was shot. She was given one fire shot at a distance of about 10 inches. He has further stated that he did not state before the Magistrate that Rajju shot fire in the forehead of her mother at a close range. He has denied that after the occurrence he remained in the house of Sitaram Babu. Advocate at Biharsharif for 3-4 days and after tutored made statement before the Magistrate. He has also denied that he did not see the occurrence and no occurrence did take place as narrated by him. 10. PW 4 is the informant and the husband of the deceased. He has stated that he heard the noise of fire-arm and bombs from the Bathan of Mochhu Saw where he had gone to perform worship. He came near his house and after the sound of noise of firing and explosion of bomb he went to his house and saw Baleshwar Mukhiya, Madan Singh, Mahesh Choudhary (none of them examined), and other 50 to 100 persons. His sons were weeping continuously. He saw the dead body of his wife. He came near his house and after the sound of noise of firing and explosion of bomb he went to his house and saw Baleshwar Mukhiya, Madan Singh, Mahesh Choudhary (none of them examined), and other 50 to 100 persons. His sons were weeping continuously. He saw the dead body of his wife. His sons were telling that 6-7 persons entered into the house out of them they identified Rajju Singh. Binda Gope and Vijay Paswan. They told him that Binda Gope shot fire. Rajju Singh caught hold of her and Vijay Paswan caught hold of her hairlocks. At the instance of Vijay Paswan, Rajju Gope shot fire at his wife and she died. After exploding bomb the accused persons fled away. The Police Officer came to his house at 2 a.m. and enquired about the occurrence. He has stated that he has not seen the occurrence but his sons have seen the occurrence. He did not see as to whether his statement was recorded by the Police Officer or not. Police Officer took his thumb impression on a plain paper. The police Officer seized two empty cartridges. He has stated that witnesses Shiv Narayan Pandey, Bhola Pandey, Shrideo Pandey, Dafadar, Jugeshwar, Baso Thakur, Birendra Paswan, Bilas Yadav, Baldeo Paswan, Ramprit Mochi belong to the group of Bangali Sardar and they will not depose. Baldeo is the uncle of accused Vijay, Shiv Narayan, Bhola and Shrideo have dispute with him. In his cross-examination he has stated that his three brothers are living in the ancestral house. He has dispute with them due to ancestral house. He has been living in the present house (place of occurrence) for the last 2-3 years. Payare Mahto had three sons Baleshwar Singh (ex-mukhiya), Bachchan Bangali and Sitaram Singh. Advocate. Madan Singh is the son of Baleshwar Singh, Bangali Sardar, the father of the accused Rajju Singh had no land dispute with Sitaram Singh. Triloki, the son of Bangall Sardar was killed and a false case of murder was instituted against Bindeshwar Singh, Madan Singh, Sitaram Singh and others. The case is pending. He has denied that one or two days after the occurrence he and his sons came to Biharsharif at the residence of Sitaram Singh, advocate to obtain the post-mortem report. As there was no bomb injury, as such the protest petition was filed by changing the version of the occurrence. The case is pending. He has denied that one or two days after the occurrence he and his sons came to Biharsharif at the residence of Sitaram Singh, advocate to obtain the post-mortem report. As there was no bomb injury, as such the protest petition was filed by changing the version of the occurrence. He has also denied that he did not go to jail in a case of manufacturing illicit liquor. He has also denied the suggestion that his present house has been constructed by Baleshwar Mukhiya and he had illicit relation with his wife as such he has been debarred from casteman. Baleshwar Singh had been giving foodgrains to him, as such his son Madan Singh was angry. He has also denied that soon after the occurrence Madan Singh, Chando and Mahesh Chaudhary were seen escaping and Madan Singh was armed with pistol. He does not know as to whether several criminal cases are pending against Sitaram Singh. Advocate or not. He has also stated that 4-5 bombs were exploded. 11. PW 5 Mahesh Singh is the Investigating Officer. He has stated that he was on patrolling and came to know that in the village Mai Farida the wife of some Pandit had been killed after lodging a Sanha he went to the place of occurrence with the police force arid reached there at 2 a.m.. He recorded the statement of Sitaram Pandey (PW 4) who put his thumb impression on the fard beyan. He also took the written statement. He also took the statement of Parsuram Pandey (PW 1) and Balmiki Pandey (PW 3). He made Inquest Report (Ext. 2) witnessed by Bangali Singh and Ramnandan Pandey (not examined). He has identified the fard beyan (Ext. 3) and Formal FIR (Ext. 3/1). He seized two empty cartridges near the dead body of Ahilya Devi and made seizure-list. The place of occurrence is brickbuilt house of Sitaram Pandey (PW 4). There was a kitchen which roof was thatched built. The head of the deceased was lying on chulha. There was also sign of firing in the wall at a height of 2-1/2 feet. Two empty cartridges were found. The ash was wet in blood, Plates, rice and pulse were also scattered in the courtyard where the deceased and her sons were taking meal. He did not seize blood stained soil nor scattered food. There was also sign of firing in the wall at a height of 2-1/2 feet. Two empty cartridges were found. The ash was wet in blood, Plates, rice and pulse were also scattered in the courtyard where the deceased and her sons were taking meal. He did not seize blood stained soil nor scattered food. The dead body was sent to Sadar Hospital. Biharsharif for post-mortem examination. On 2.4.1987 he and Dy. S.P. went to the place of occurrence. Dy. S.P. did not take the statement of informant and his sons as they were not available at the place of occurrence. He has denied that Dy. S.P. took the statement of Parsuram Pandey, Balmiki and Sitaram and he wrongly mentioned that they had gone to Biharsharif. He handed over the charge of investigation to S.I. Sitara Khan PW 6). In his cross-examination he has stated that he recorded the statement of Vimal Chaudhary, C.O. Rahui on 1.5.1987. He went to the house of the informant and the informant and his sons were not found. His house was locked. Bhola Pandey told him that after the occurrence Sitaram Padney lives at the residence of Sitaram Singh, Advocate at Biharsharif. 12. PW 6 Sitara Khan is another Investigating Officer. He has stated that on 10.5.1987 he took the charge of Rahui P.S. Case No. 28 of 1987 from S.I. Mahesh Singh (PW 5). He copied the statement of witnessed recorded under Section 164, Cr PC in the case-diary. He arrested Rajju Singh and Vijay Paswan on 5.7.1987. After investigation he submitted the charge-sheet. In his cross-examination he has stated that on 31.3.1987 he was also posted in Rahui Police Station. On 1.4.1987 he had gone to the place of occurrence with PW 5. He did not record the statement of any witnesses nor inspected the place of occurrence after getting the charge of investigation. He has proved Sanha Entry No.1, dated 11.4.1987 (Ext. 5). 13. DW 1 is the own brother of Sitaram Pandey (informant). He has stated that on the date and time of the occurrence he was sitting at public chabutara of village with Anirudh Singh. Binda Gope (appellant), Vljay Paswan (appellant) and other co-villagers. Chabutara was at a distance of 50 feet from the house of his brother Sitaram Pandey (PW 4). There was 12-14 firing in the house of PW 4. He has stated that on the date and time of the occurrence he was sitting at public chabutara of village with Anirudh Singh. Binda Gope (appellant), Vljay Paswan (appellant) and other co-villagers. Chabutara was at a distance of 50 feet from the house of his brother Sitaram Pandey (PW 4). There was 12-14 firing in the house of PW 4. He went to the house and found the wife of Sitaram Pandey dead. No one told about the name of the assailants, in his cross-examination, he has stated that the police officer has taken his statement. 14. DW 3 Bhola Pandey is also the brother of the informant (PW 4). He has stated that Balmiki Pandey (PW 3) came to him and he went to his house and saw the dead body of the wife of PW 4 lying in his house. 15. PW 2 Bilash Yadav has stated that at the time of occurrence he was going to his house and heard the noise of fireshot and explosion of bomb. He saw Madan Prasad and Mahesh Paswan armed with pistol and Chandu was having a bag containing bombs. They were escaping towards western side. He has further stated that at the time of occurrence Sitaram Pandey (informant) was selling country made liquor. Baleshwar Prasad. ex-mukhiya and the son of Madan Prasad used to go to the house of Sitaram Pandey to take liquor. Baleshwar had close relation with the wife of Sitaram which was objected by the members of the family of Sitaram Pandey. In his cross-examination he has stated that Baleshwar Prasad was mukhiya. He had two sons. Madan is his younger son. Baleshwar had illicit relation with the wife of informant for the last 2 years. Sitaram had also gone to jail for selling illicit liquor. 16. DW 4 has stated that on the date and time of the occurrence he was returning to his house. He heard the noise of firing. After some time he saw that Madan Prasad. Mahesh Choudary and Chandu Mahto were escaping. Mandan and Mahesh were armed with pistol and Chandu had bag. Thereafter, he and others went to the house of Sitaram Pandey and saw the dead body of wife of Sitaram Pandey. Prior to this occurrence Sitaram Pandey had grocery shop and was also selling illicit liquor. Baleshwar Prasad Singh is the father of Madan Prasad. Mandan and Mahesh were armed with pistol and Chandu had bag. Thereafter, he and others went to the house of Sitaram Pandey and saw the dead body of wife of Sitaram Pandey. Prior to this occurrence Sitaram Pandey had grocery shop and was also selling illicit liquor. Baleshwar Prasad Singh is the father of Madan Prasad. Baleshwar had illicit relation with the wife of Sitaram Pandey. In his cross-examination, he has denied that accused Vijay Paswan is his cousin brother. He has also stated that he has seen Baleshwar Mukhia taking wine at the shop of Sitaram Pandey. 17. DW 5 Srideo Pandey is the cousin brother of the informant. He has stated that at the time of occurrence he heard the noise of three fire shots. The noise came from the house of Sitaram Pandey, He and others went there and saw Mandan Prasad son of Baleshwar and Mahesh Chaudhary, son of Dasai Choudhary going towards southern side. He found that the wife of Sitaram Pandey was dead. In his cross-examination he has stated that on the next date of the occurrence the police officer has taken his statement and Dy. S.P. has also taken his statement. He has denied that he deposed a lie to save Rajju, son of Bangali where he goes to worship. 18. DW 6 has stated that on 1.4.1987 he was posted as Deputy Superintendent of Police. He has supervised the investigation of Rahui P.S. Case No. 28 of 1987. He has taken the statement of Sitaram Pandey (PW 4), Parsuram Pandey (PW 1), Balmiki Pandey (PW 3), Srideo (DW 5) and Shivnarayan Pandey (DW 1), Bhola Pandey (DW 3) and Baso Thakur (not examined) on the place of occurrence. He has also taken the statement of other witnesses in his office after supervision. He has made the supervision note which has been marked as Ext. A. He has stated that Balmiki Pandey (DW 3) has stated before him that Vijay Paswan (appellant) exploded bomb. He has also stated that Sitaram Pandey has stated that there is land dispute between Awadh Chaudhary and Sardar Bangali Singh. Baleshwar Mukhiya was ploughing his field. Bangali Sardar had asked him to depose in that case. Sitaram had further stated before him that prior to the occurrence he was manufacturing illicit liquor. Police raided his house, as such he left his ancestral house and started living separately. Baleshwar Mukhiya was ploughing his field. Bangali Sardar had asked him to depose in that case. Sitaram had further stated before him that prior to the occurrence he was manufacturing illicit liquor. Police raided his house, as such he left his ancestral house and started living separately. Baleshwar Mukhiya used to come to his house. 19. Learned counsels for the appellants have submitted that PW 1 and PW 3 are only the eye witnesses of this occurrence. Both have narrated about the occurrence to his father Sitaram Pandey (PW 4), Thereafter, PW 4 had given his fard beyan to the Police Officer. From perusal of the fard beyan it appears that the accused has exploded bomb and had made firing. PW 1 and PW 3 have also stated about the explosion of bomb at the place of occurrence but the Investigating Officer has not found any sign of explosive substance. He has gone to the place of occurrence soon after the occurrence. PW 3 has stated in his cross-examination that his mother fell down facing mouth and in that state she was shot. He has denied that firing was made in the head at a close range. It has been stated that firing was made at a distance of 10 inches. Ocular evidence does not get support from the medical evidence. 20. Learned counsel for the informant has supported the prosecution case but could not controvert the contention of learned counsels for the appellants that the evidence of ocular witnesses is not corroborated with the medical evidence. 21. After hearing learned counsel for both the parties and on perusal of the material on record we find that the contentions of learned counsel for the appellants are correct. PW 1 and PW 3 are only the eye witnesses to the occurrence. They have stated about the explosion of bomb by the accused at the place of occurrence but the Investigating Officer has not found any sign of explosive substance. According to the eye witnesses firing was made at a distance of about 10 inches while the deceased fell down facing mouth. Whereas, according to medical evidence (PW 2) there was one injury caused by fire shot in the forehead from the close range which caused death of the deceased. The defence of the accused appears to be more probable that they have been falsely implicated in this case. 22. Whereas, according to medical evidence (PW 2) there was one injury caused by fire shot in the forehead from the close range which caused death of the deceased. The defence of the accused appears to be more probable that they have been falsely implicated in this case. 22. Considering the facts and circumstances stated above, we find and hold that the prosecution has not been able to substantiate its case beyond shadow of all reasonable doubts. It is settled principle of law that once the doubt is created, it goes in favour of the accused, so the appellants are entitled to get the benefit of doubts. 23. In the result, the impugned judgment of conviction and sentence is set aside. Both these appeals are allowed. The appellants are acquitted of the charge by giving them the benefit of doubts. As all the appellants are on bail, they are discharged from the liabilities of their bail bonds. Appeals allowed.