JUDGMENT (ORAL) Per A.K. Trivedi. J. 1. Appellant Jai Shree Yadav (since deceased), Surendra Pandey, Lallan Pandey, Meena Ahir @ Yadav. Bishwanath Ahir @ Bishwanath Yadav and Baristar Ahir @ Yadav who0020have been found guilty for an offence punishable under Sections 302/149 of the IPC and have been directed to undergo imprisonment for life appellant Lallan Pandey who has been found guilty for an offence punishable under Section 27 of the Arms Act and has been directed to undergo RI for five years while appellant Balistar Ahir @ Yadav, Meena Ahir @ Yadav, Bishwanath Ahir @ Bishwanath Yadav have been found guilty for an offence punishable under Section 3 of Explosive Substances Act and have been directed to undergo imprisonment for life with a further direction to nm the sentences concurrently by the learned Vth Additional Sessions Judge, Siwan vide his judgment dated 29th of June 1990 passed in Sessions Trial No. 29 of 1987/116 of 1987 have preferred instant appeal. 2. Initially three appeals were preferred separately bearing Criminal Appeal (DB) No. 325 of 1990, Criminal Appeal (DB) No. 335 of 1990 and Criminal Appeal (DB) No. 337 of 1990 out of which sole appellant of Criminal Appeal (DB) No. 335 of 1990 died and on account thereof Criminal Appeal (DB) No. 335 of 1990 abated. With the consent of the parties these appeals have been heard together and are being disposed of by a common judgment. 3. The prosecution case in brief as per fardbeyan (Ext. 2) of Hem Narain Chaurasia (PW 13) recorded on 26.6.1985 at about 9.00 p.m. at Raghunathpur police station disclosing the fact that on the same day at about 8.30 p.m. his sons namely Ramjanam Chaurasia and Sheojanam Chaurasia were returning from market over bicycle. At that very time he was returning after easing himself. When both of his sons came in front of house of Jaishree Yadav, all of a sudden Jaishree Yadav armed with gun, Ramjeet Ahir armed with gun as well as bomb, Surendra Pandey armed with 'gun, Lallan Pandey armed with gun, Balister Ahir, Bishwanath Ahir, Meena Ahir armed with bomb as well as pistol respectively came out. Ramjeet Ahir hurled bomb over mouth of Ramjanam which exploded followed by repeated hurling by Bishwanath Ahir, Meena Ahir and Balister Ahir, Ramjanam Chaurasia fell down on the earth. Ramjeet Ahir hurled bomb over mouth of Ramjanam which exploded followed by repeated hurling by Bishwanath Ahir, Meena Ahir and Balister Ahir, Ramjanam Chaurasia fell down on the earth. Ramjeet Ahir also fired from his gun causing injury over leg of Ramjanam Chaurasia. At the other hand, Jaishree Yadav had shot at Sheojanam Chaurasia causing injury thereupon. Sheojanam rushed towards house of Indrasan Ahir to save his life however fell down in the Courtyard of Indrasan Ahir. Lallan Pandey, Surendra Pandey also fired upon him. Thereafter Jaishree Yadav gave garasi blow over Sheojanam Chaurasia. On hearing sound of explosion of bomb as well as firing, wife of informant came who assaulted Jaishree Yadav with 'lota' on account of which the accused persons escaped therefrom and gone towards bathan of Lallan Pandey. It has further been disclosed that though he was not aware but for the last three days the accused persons were sitting at the house of Jaishree Yadav. Then he had submitted that long standing enmity as well as pendency of litigation was motive for commission of the occurrence. It had further been disclosed that Sheojanam Chaurasia was taken to Primary Health Centre, Raghunathpur and from there, he has been shifted to Sadar Hospital Siwan. Ramjanam Chaurasia is dead and his dead body is lying in the field of Indrasan Ahir just in front of house of Jaishree Yadav. Lallan Tiwari, Jiut Baraee, Tarkeshwar Baraee and Pancham Baraee were cited as witness. 4. On the basis of the aforesaid fardbeyan a substantial case was registered and investigation commenced thereupon which ultimately concluded by filing charge-sheet against the accused persons whereupon all the appellants were put on trial and ultimately met with consequences the subject matter of instant appeal. 5. The defence case as is evident from the mode of cross-examination as well as statement recorded under Section 313 of the Cr PC is of complete innocence as well as that of false implication on amongst of prevailing animosity amongst the parties. 6. While assailing the judgment of conviction and sentence. it has been argued on behalf of appellant Lallan Pandey and Surendra Pandey that virtually they have been implicated in this case at the instance of local mukhiya against whom his brother contested however. lost. 6. While assailing the judgment of conviction and sentence. it has been argued on behalf of appellant Lallan Pandey and Surendra Pandey that virtually they have been implicated in this case at the instance of local mukhiya against whom his brother contested however. lost. Also submitted that only to justify their status the informant had during course of evidence divulged that as the informant turned down demand of these two appellant for providing space to be used as passage to their Bathan on account thereof these appellants also participated which had already been negativated during course of investigation made by CID. though after submission of charge-sheet. It has further been submitted that the prosecution had brought evidence against them in bold manner. Further submitted that from the evidence of other PWs it is also evident that they have not named these two appellants during course of statement before police however dragged the appellants during course of trial and all those things are apparent from the evidence of I.O., PW 14. Therefore, presence of these two appellants during course of commission of crime has become doubtful and therefore, appellants are at least entitled for benefit of doubt. 7. On behalf of remaining appellants it has been submitted that the learned trial Court had not considered the materials that means to say the oral as well as documentary evidence in its right perspective. It has been submitted that when the relevant exhibits are taken into account two occurrences in two different manner is found to have committed. although it is found from oral evidence that prosecution had tried to smear the same. To support the same it has been submitted that right from Ext. 2. it is evident that Sheojanam was taken to Sadar Hospital Siwan where his statement was recorded by PW 15 Surajdeo Pandey and from that statement (Ext. 11) coupled with the dying declaration (Ext. 3) recorded by PW 2 Dr. Ramesh Mishra. it is evident that both two brothers namely Ramjanam Chaurasia and Sheojanam Chaurasia have sustained injury at the hands of Ramjeet Yadav as well as Jaishree Yadav during course of an occurrence which was committed at about 6.30 a.m. while from the other documents. it is evident that both two have sustained fatal injuries at 8.30 p.m. wherein the appellants as named above including Ramjeet Yadav and Jaishree Yadav have been held responsible. it is evident that both two have sustained fatal injuries at 8.30 p.m. wherein the appellants as named above including Ramjeet Yadav and Jaishree Yadav have been held responsible. It has further been submitted that informant PW 13 had claimed his presence since before occurrence near the place of occurrence but the same is found to be controverted by remaining PWs who claimed themselves to be the first who arrived at the place of occurrence. Not only this there happens to be lacking of source of identification and therefore implication of appellants with specific allegation is not at all found to be possible as well as probable. 8. Exploring the illegality during conduction of the trial in consonance with paragraph 1 of the judgment. it has been submitted that initially the charge was framed under Section 149 of the IPC only that too for causing murder of Ramjanam Chaurasia. The aforesaid defect as is evident the learned trial Court rectified vide order dated 19.6.1990. but the same still found persisting causing prejudice to the interest of appellants. The defect so persisting is not falling under category of omission or irregularity therefore, same is found to be beyond scope of Section 464 of the Cr PC. Hence on this score alone the judgment impugned is fit to be set aside. 9. At the other hand the learned Additional PP while supporting the finding arrived at by the learned trial Court has submitted that mere irregularity or omission during course of framing of charge is not going to adversely affect upon the prospect of the prosecution case because of the fact that during course of trial the appellants were well aware with the allegation for which they were prosecuted. Apart from the fact that the aforesaid defect happens to be curable as well as fit to be ignored in terms of Section 464 of the Cr PC. 10. So far material on record is concerned. It has been submitted that it is upon the Court to consider either of the two version so adduced is acceptable. In the aforesaid background, once the Court had accepted the version as flashed by the PW 13 Hem Narain Chaurasia then in that event the finding recorded by the trial Court is found to be supported with ocular as well as documentary evidence. In the aforesaid background, once the Court had accepted the version as flashed by the PW 13 Hem Narain Chaurasia then in that event the finding recorded by the trial Court is found to be supported with ocular as well as documentary evidence. It has further been submitted that on account of so many infirmities neither the statement nor the dying declaration of Sheojanam Chaurasia is found to be acceptable. 11. In order to substantiate its case the prosecution had examined altogether 17 PWs out of whom PW 1 is Rajendra Singh, PW 2 is Dr. Ramesh Mishra, PW 3 is Dr. Anil Kumar, PW 4 is Bishram Prasad, PW 5 is Jiut Barai, PW 6 is Surj Nath Tiwari, PW 7 is Lallan Tiwari, PW 8 is Pancham Chaurasia. PW 9 is Giraja Devi, PW 10 is Kausalya Devi, PW 11 is Tarkeshwar Barai, PW 12 is Rajmati Devi, PW 13 is Hem Narain Chaurasia, PW 14 is Shri Kant Rai, PW 15 is Surjdeo Pandey. PW 16 is Shyam Narain Prasad and PW 17 is Ram Balak Singh. Side by side also exhibited Ext. 1 formal FIR Ext., 2 fardbeyan, Ext. 3 dying declaration, Ext. 4 series two postmortem reports, Ext. 5 series signature of respective witnesses over different documents, Ext. 6 inquest report, Ext. 7 seizure list. Ext. 8 inquest report of Sheo Janam Chaurasia, Ext. 9 FSL report, Ext. 10 signature of witnesses, Ext. 11 statement of deceased Sheojanam Chaurasia, Ext. 12 bed head tickets and Ext. 13 sanction accorded by DM. on behalf of appellants Lallan Pandey and Surendra Pandey four D.Ws. have been examined namely D.W. 1 Raja Choudhary. D.W. 2 Bachcha Pandey, D.W. 3 Syed Md. Salim and D.W. 4 Paramhansh Singh as well as following exhibits have also been brought up on record Ext. A Page No. 1-43 of the supplementary case diary, Ext. B khatiyan (substituted), Ext.C series of deposition, Ext. D series of different FIRs, Ext. E judgment. Ext. F certified copy of the order-sheet. Ext. G certified copy of the order-sheet, Ext. H charge-sheet, Ext. I certified copy of petition for initiation of a proceeding under Section 107 of the Cr PC, Ext. J police report referring to Section 144 of the Cr PC proceeding, Ext. K certified copy of fardbeyan and Ext. L injury report. 12. After hearing both sides. Ext. G certified copy of the order-sheet, Ext. H charge-sheet, Ext. I certified copy of petition for initiation of a proceeding under Section 107 of the Cr PC, Ext. J police report referring to Section 144 of the Cr PC proceeding, Ext. K certified copy of fardbeyan and Ext. L injury report. 12. After hearing both sides. it is crystal clear that two distinct version comes out with regard to commission of occurrence whereunder deceased Ramjanam Chaurasia and Sheojanam Chaurasia were murdered. The first one happens to be the present one originated on the basis of Ext. 2, fardbeyan of PW 13 Hem Narain Chaurasia while the second happens to be on the basis of statement recorded at Sadar Hospital. Siwan by PW 15 corroborated by another statement by way of dying declaration (Ext. 3) recorded by PW 2 at Sadar Hospital. Siwan of deceased Sheo Janam Chaurasia. 13. According to the version of deceased Sheojanam Chaurasia as is evident from Ext. 11 it is apparent that he had made Ramjeet Yadav as well as Jaishree Yadav accountable for the injuries caused to Ramjanam Chaurasia as well as he himself at 6.30 p.m. while both of them were proceeding towards their house. PW 4 Bishram Prasad another brother of both the deceased stood as a witness on that very statement which had already been admitted by him with certain explanation having at para-32 that he had signed over the document as directed by the police officer but the fact remains and found admitted by PW 4 accompanied the deceased till his death at Sadar Hospital. Siwan. Same version of occurrence appears to be coming out from Ext. 3 the dying declaration recorded by PW 2 Dr. Ramesh Mishra finding the deceased in critical condition had recorded the same. The prosecution by producing the aforesaid two witnesses as well as exhibiting the aforesaid document have brought up on record these two documents accepting its validity, legality, truthfulness, genuineness. Therefore, the contents thereof is found to be admissible in terms of Section 32 (1) of the Evidence Act. In the aforesaid background, and as its content has not been challenged from any corner then in that event prima facie there appears to be no hitch in accepting its genuineness. Neither the prosecution nor the defence had ever challenged that at the time of recording of the aforesaid two documents. In the aforesaid background, and as its content has not been challenged from any corner then in that event prima facie there appears to be no hitch in accepting its genuineness. Neither the prosecution nor the defence had ever challenged that at the time of recording of the aforesaid two documents. deceased was not in a fit state of mind was ever tutored and influenced. Therefore, the validity of document cannot be questioned. 14. After going through its contents. it is apparent that the occurrence had taken place at about 6.30 p.m. wherein Ramjeet Yadav and Jaishree Yadav had participated causing injuries over the person of Ramjanam Chaurasia as well as Sheojanam Chaurasia leading to death of aforesaid two. Then in that event the version of Hem Narain Chaurasia PW 13 supported by other PWs are not at all found to be in row with the dying declaration as discussed above and in the aforesaid background the genuine version of prosecution is found adequately snippet. 15. Though there happens to be no occasion to discard Ext. 11 as well as Ext.3. even for a moment keeping it aside we have also adventured to see whether the prosecution by its second version of occurrence had really succeeded in substantiating the same. The first disorder on this score appears to be with regard to source of identification. All the material witnesses that means to say PW 4 Bishram Prasad, PW 5 Jiut Barai, PW 6 Surj Nath Tiwari, PW 7 Lallan Tiwari, PW 8 Pancham Chaurasia, PW 9 Giraja Devi, PW 10 Kaushalya Devi, PW 11 Tarkeshwar Barai, PW 13 Hem Narain Chaurasia have not stated the source of identification nor the I.O. PW 14 during course of investigation confining to the extent of objective finding had traced the same. As per prosecution case, the occurrence had taken place at about 8.30 p.m. having specific allegation arrowed against individual accused. 50 certainly, without having source of identification. really it was possible for the prosecution witness to identify each of the appellant engaged in such criminal activity save and except one Jaishree Yadav who was beaten by Rajmati Devi while he was cutting 5heojanam Chaurasia in the house of Indrasan Ahir and in the aforesaid background the identification is found feasible. 16. really it was possible for the prosecution witness to identify each of the appellant engaged in such criminal activity save and except one Jaishree Yadav who was beaten by Rajmati Devi while he was cutting 5heojanam Chaurasia in the house of Indrasan Ahir and in the aforesaid background the identification is found feasible. 16. The second aspect happens to be that none of the family members of Indrasan had come forward to support the case of the prosecution not only this PW 14 the I.O. failed to depose on this very score nor any of the prosecution witnesses have explained the circumstances for non-examination of lndrasan Ahir or his family members. 17. The third one happens to be that save and except PW 13 Hem Narain Chaurasia none of the PWs have claimed to have witnessed the occurrence in its continuity. If the evidence of PW 4 Bishram Prasad, PW 5 Jiut Barai along with PWs 7 and 8 is gone through, they have shown the status of informant Hem Narain Chaurasia doubtful to have witnessed the occurrence right from inception as stating that they had come first and then thereafter the others have. Now coming to the evidence of Hem Narain Chaurasia PW 13 he himself shown not to be an eye-witness as per para 22 of his cross-examination wherein he had stated that he was standing North to the house of Indrasan when he saw the accused persons coming out from their house. When they came out he remained standing. From there he saw his sons coming over bicycle. He began to see from that place. When his son reached in front of gate then the accused persons came out and then Ramjeet Ahir had hurled bomb over Ramjanam Chaurasia and this part clearly contradicts his own assertion given in para-2 of his examination-in-chief. So really he was present at the place of occurrence without having any activity as had he taken precautionary measure, then in that event there was no occasion for both the deceased to proceed further. His aforesaid status is further found to be falsified from para-24. So really he was present at the place of occurrence without having any activity as had he taken precautionary measure, then in that event there was no occasion for both the deceased to proceed further. His aforesaid status is further found to be falsified from para-24. In para-26 he had said that when police had come then he had gone to the angan of Indrasan and that happens to be total inconsistent with his examination-in chief para-5 wherein he had stated that he along with his wife had gone there where his wife had striked with 'lata' upon Jaishree Yadav. So in the aforesaid background, the evidence of PW 13 have lost its rudiment that too with regard to an occurrence that had alleged to have taken place on 26.6.1985 at 8.30 p.m. 18. The evidence of PW 14 happens to be supportive showing the place of occurrence by his objective finding as well as on account of seizure of incriminating article therefrom. However he had supported the authenticity Ext. 11 as well as Ext. 3 statement as well as dying declaration of Sheojanam Chaurasia. 19. With regard to medical evidence the evidence of PW 3 is there and virtually there has not been challenge at the score of appellants so far finding recorded by PW 3 with regard to nature cause of ante-mortem injuries found over the dead body of respective deceased Ramjanam Chaurasia as well as Sheojanam Chaurasia is concerned. 20. So far question of charge is concerned. after going through minutely it is found that the learned lower Court could not be able to rectify the defect persisting on the record by making his unsuccessful attempt vide order dated 19.6.1990 to rectify the same. It is true that even at the time of the judgment, the charge is subject to amenable. But the steps should taken or adopted in a manner by which the accused should not feel anyway prejudiced. The defect which was persisting relates to non-framing of charge with regard to murder of Sheojanam Chaurasia and during course of passing of order dated 19.6.1990, it appears that the learned trial Court had again ignored or slipped the same on account thereof the major defect what was persisting since before continued furthermore. The defect which was persisting relates to non-framing of charge with regard to murder of Sheojanam Chaurasia and during course of passing of order dated 19.6.1990, it appears that the learned trial Court had again ignored or slipped the same on account thereof the major defect what was persisting since before continued furthermore. By having the aforesaid defect on record certainly it has caused prejudice to the appellant because of the fact that they were not at all known to the fact that they were also being prosecuted for the death of Sheojanam Chaurasia and in the aforesaid background certainly it has got the bearing upon the prospect of Ext. 11 as well as Ext. 3 which relates to Sheojanam Chaurasia. 21. Taking into account the inconsistent version of the prosecution without having cogent reasonable explanation makes the whole prosecution case unreliable. The aforesaid conflicting version demolished each other and in the aforesaid background the ultimate beneficiaries would be the appellants. Therefore, the ape peal is allowed. As such, the judgment of conviction and sentence passed by the learned lower Court is set aside. The appellants are on bail hence, they are discharged from its liability. Appeal allowed.