ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA) ***** Appellants Rajdeo Yadav, Lakhan Yadav, Sheo Dahin Yadav, Jugeshwar Yadav, Ram Chandra Yadav and Sohrai Yadav have challenged the judgment dated 28th of August, 1990 passed by the learned 4th Additional Sessions Judge, Gaya in Sessions Trial No. 100 of 1989/218 of 1980, whereby the appellant Rajdeo Yadav was found guilty under Section 302 of the IPC and rest of the appellants were found guilty under Section 302/149 of the Indian Penal Code. Rajdeo Yadav, Sohrai Yadav and Ramchandra Yadav were additionally found guilty under Section 148 of the IPC and Lakhan Yadav and Jugeshwar Yadav were found guilty for the charge under Section 147 of the IPC. The sentences under Section 302, 302/149 of the IPC was for undergoing R.I. for life but no separate sentence was awarded for committing offence under Sections 148 and 147 of the Indian Penal Code. 2. Allegations relates to the night of 22/23.05.1979. At the relevant time Chamru Yadav P.W. 8, the informant was sleeping along with his uncle Kuldeep Yadav P.W. 3. Father of Chamru Yadav namely Dudhnath Yadav (the deceased) was sleeping on a cot. Dog barking disturbed their sleeping. In the meanwhile, Chamru Yadav P.W. 8 noticed that the accused persons were approaching towards them. The accused persons were armed with weapons. It has been claimed that Rajdeo Yadav was having a country made pistol, Sohrai Yadav and Ram Chandra Yadav were having Garasa and Bhala respectively and Lakhan Yadav and Sheo Dahin Yadav were having torch and Jugeshwar Yadav was having a Lathi. Ram Chandra Yadav and Sheo Dahin Yadav shouted for catching so that the victim could not escape. The informant Chamru Yadav thereafter awakened his father but in the meanwhile the accused persons came very near. Ram Chandra Yadav asked as to why he was deposing against them in the court. Sohrai Yadav caught both legs of the informant’s father. Jugeshwar Yadav caught hold hands of the informant’s father and Rajdeo Yadav fired at the informant’s father which caused injury near the right ear. The impact of the injury proved fatal. After raising alarm by the informant and his uncle, villagers Chandradeep Yadav P.W. 2, Nanhak Yadav P.W. 7 and others came and saw the informant’s father dead. Jugeshwar Yadav caught hold hands of the informant’s father and Rajdeo Yadav fired at the informant’s father which caused injury near the right ear. The impact of the injury proved fatal. After raising alarm by the informant and his uncle, villagers Chandradeep Yadav P.W. 2, Nanhak Yadav P.W. 7 and others came and saw the informant’s father dead. It has been alleged that the informant and his family members were having animosity resulting into serious litigations in the court. On 30.05.1979, the informant’s father had to depose in the court and that was the immediate provocation. Fardbeyan was witnessed by Keshvar Prasad (not examined). Formal FIR (Ext. 1), fardbeyan was recorded as Karpi P.S. Case No. 5 of 1979 under Section 302 of the Indian Penal Code. 3. The I.O. came and prepared the inquest report (Ext. 5), Post-mortem report (Ext. 4) was obtained from the hospital. The statement of the witnesses was taken and after investigation charge sheet was submitted. The charges divulged commission of a cognizable offence triable by the court of sessions so after completing paraphernalia and supply of police papers the case was committed to the court of sessions where charges were framed against the accused persons. 4. Rajdeo Yadav, Sohrai Yadav and Ram Chandra Yadav were charged under Section 148 of the IPC, Lakhan Yadav, Sohrai Yadav and Jugeshwar Yadav were charged under Section 147 of the IPC, Rajdeo Yadav was charged under Section 302 of the IPC, Ram Chandra Yadav and Sheo Dahin Yadav were charged under Sections 304/114 of the IPC and Sohrai Yadav, Lakhan Yadav and Sheo Dahin Yadav were charged under Section 342 of the Indian Penal Code. The accused persons pleaded innocence and so the trial commenced. 5. The prosecution in order to substantiate its case examined 11 witnesses they are P.W. 1 Birendra Singh, P.W. 2 Chandradeep Yadav, P.W. 3 Kuldeep Yadav, P.W. 4 Salagni Devi, P.W. 5 Thapshi Yadav, P.W. 6 Sukhari Yadav @ Sukhi Yadav, P.W. 7 Nanhak Yadav, P.W. 8 Chamru Yadav, P.W. 9 Parikhan Yadav @ Khalifan Yadav, P.W. 10 Dr. Chandreshwar Pd. The prosecution in order to substantiate its case examined 11 witnesses they are P.W. 1 Birendra Singh, P.W. 2 Chandradeep Yadav, P.W. 3 Kuldeep Yadav, P.W. 4 Salagni Devi, P.W. 5 Thapshi Yadav, P.W. 6 Sukhari Yadav @ Sukhi Yadav, P.W. 7 Nanhak Yadav, P.W. 8 Chamru Yadav, P.W. 9 Parikhan Yadav @ Khalifan Yadav, P.W. 10 Dr. Chandreshwar Pd. Sinha, P.W. 11 Ujjar Azam, the I.O. P.W. 1 is a formal witness and has proved formal FIR, P.W. 2 has been examined as a hearsay witness, P.W. 4 has been tendered by the prosecution, P.W. 5 is a formal witness who has proved signature on inquest report, P.W. 6 has been tendered. P.W. 7 has been declared hostile, P.W. 9 the formal witness who has proved signature upon the inquest report and P.W. 10 has conducted the post-mortem examination upon the dead body. P.W. 2 has come up after hearing and thus he is a hearsay witness. The occurrence has taken place in presence of the informant P.W. 8 and the informant’s uncle P.W. 3, therefore, the evidence of these two witnesses are material for the prosecution. Other witnesses are not relevant because they are not on occurrence. Firstly evidence of the informant is being noted. 6. The informant P.W. 8, while deposing has stated on 23.05.1979, after mid-night he was sleeping on the cabin along with his uncle Kuldeep Yadav P.W. 3 and Dudhnath Yadav (the deceased). Dogs’ barking awakened them. The informant flashed torch and identified some of them. Thus identified persons were Rajdeo Yadav, Lakhan Yadav, Sheo Dahin Yadav, Jugeshwar Yadav, Ram Chandra Yadav and Sohrai Yadav. Rajdeo Yadav was having a country made pistol, Sohrai Yadav and Ram Chandra Yadav were having Garasa and Bhala respectively and Lakhan Yadav and Sheo Dahin Yadav were having torch and Jugeshwar Yadav was having a Lathi. The informant stood up but Ram Chandra Yadav shouted for restraining the informant and his persons as he was aggrieved for deposition in the court. Thereafter, Rajdeo Yadav put his pistol upon the right ear of the informant’s father and fired. At that time the informant’s father was caught by Sohrai Yadav. Jugeshwar Yadav was holding hands of the informant’s father and in that position the firing was resorted by Rajdeo Yadav. The firing caused instantaneous death of Dudhnath Yadav. After commission of the offence, the accused persons were escaped. At that time the informant’s father was caught by Sohrai Yadav. Jugeshwar Yadav was holding hands of the informant’s father and in that position the firing was resorted by Rajdeo Yadav. The firing caused instantaneous death of Dudhnath Yadav. After commission of the offence, the accused persons were escaped. It has been claimed that the occurrence was against the enmity in the court against the accused on 30.05.1979. The informant after the occurrence went to the police station and lodged the FIR. He has detailed the enmity in his evidence and has stated that prior to the occurrence Gopal Yadav has lodged a case against the informant and his family members. He further stated that the case in which Dudhnath Yadav was to depose Rajdeo Yadav was not the accused rather father of Rajdeo Yadav was accused. The informant has further stated that prior to the occurrence he has lodged three cases against the accused persons. He further depose that after the occurrence Chandradeep Yadav P.W. 2, Nanhak Yadav P.W. 7, Sukhi Yadav came and they were detailed about the commission of the offence. P.W. 2 has been supported by P.W. 3 in his evidence who has stated that the light of the torch flashed by the informant Chamru Yadav and he has identified the accused persons. He said that Sohrai Yadav was caught the legs of Dudhnath Yadav and Jugeshwar Yadav was caught the hands. The fatal shot was attributed against Rajdeo Yadav who fired by the right side of the temporal region which proved fatal. He has stated that after hearing firing P.Ws. 2, 6 and 7 came and they were detailed about the occurrence. Regarding distance of firing which proved fatal P.W. 3 in para-20, has stated that the firing was resorted from a distance of about one hand. He denied that the firing was resorted to after putting the firearm upon the body. He denied that he had made statement under Section 161 of the Cr.P.C. that firing was resorted to after putting the firearm upon the head of Dudhnath Yadav. P.W. 11 while deposing has stated in para-14 of his evidence that Kuldeep Yadav P.W. 3 told him that firing was resorted to after putting the barrel upon the head of Dudhnath Yadav. 7. Two persons have stated two versions so far as it relates to distance of firing upon Dudhnath Yadav. P.W. 11 while deposing has stated in para-14 of his evidence that Kuldeep Yadav P.W. 3 told him that firing was resorted to after putting the barrel upon the head of Dudhnath Yadav. 7. Two persons have stated two versions so far as it relates to distance of firing upon Dudhnath Yadav. If the I.O. is to be believed then it is apparent that P.W. 3 has stated that firing was resorted to after putting the barrel upon the head of Dudhnath Yadav. P.W. 8 has stated that firing was resorted to after the barrel was put on the right ear. P.W. 8 has stated that firearm was put almost on the right ear that proved fatal. P.W. 3 has contradicted this in his evidence. He has stated that the firing was resorted to at a distance of one hand. Here the evidence of the doctor has to be looked into. 8. P.W. 10 has held the post-mortem upon the dead body of Dudhnath Yadav which was identified by Constable No. 66 Lalji Singh, Chowkidar Bulak Singh and Kuldeo Yadav. The doctor has found the following two injuries : i). There was massive swelling on the whole of scalp from forehead to left ear and in front 2/3 of the head. There was lacerated wound on right side of scalp 2”x1”x1” with membrance coming out from the wound just above and in front of the ear. ii). There was another lacerated wound on the left side of head just above and in front of left year 2”x2”x1” with membrance coming out. The post-mortem was conducted at 3.30 p.m. on 23rd May, 1979 and the doctor has opined that the time of death within 36 hours from the post-mortem though doctor was emphatic that there were no charring marks. In para-12 the doctor has explained that “if the injury is caused within six hours then we describe it either to have been caused within six hours or we may even describe it to have been caused within twelve hours – and if within twenty four hours then we describe it to have been caused within twenty four hours. If the age of injury is above twenty four hours then we describe it as within thirty six hours and so on and so forth.” 9. If the age of injury is above twenty four hours then we describe it as within thirty six hours and so on and so forth.” 9. The doctor’s evidence makes two things clear that firing was not from close proximity as claimed by P.W. 8. In case, if the firing is made after touching the firearm upon the persons then it would be definitely caused charring and body injuries. Specific case of the prosecution is that the firing was resorted to after putting the firearm upon the persons of the deceased Dudnath Yadav. P.W. 10 in para-3, has clarified that “there was no charring marks.” Not only that with regard to time of death, the doctor has also given another version. 10. The doctor’s evidence brought on record by the prosecution, has clarified that death was not on the time as suggested. The occurrence is past mid-night of 22/23.05.1979 and the post-mortem was held after about 15 hours of the occurrence. The doctor’s evidence rules out the death to be within 15 hours rather the doctor is emphatic and he has stated that it was beyond 24 hours. This is not the case of the prosecution. Therefore, two versions have come on the record so far it relates to time of death. If the doctor’s evidence is to be believed then the death was prior to 3.30 p.m. of 22.05.1979, and if the prosecution witnesses namely P.Ws. 2, 3 and 8 are to be believed then the death was just past mid-night of 22/23.05.1979. The time spent given by the doctor and the witnesses could not reconcile because both are quite distant apart. Not only that the eye witnesses contradicted themselves with regard to manner of occurrence is concerned. One says that the firing was resorted to after putting the pistol upon the ear of Dudhnath Yadav and another says that it was from some distance. The doctor has ruled out the possibility that firing was from the close end as he has not found charring marks. The ocular evidence stand totally contradicted from the doctor’s evidence who has not found any charring marks upon the deceased. There are no independent witnesses. The prosecution has relying upon two witnesses who were definitely unnatural and probable witnesses. There presence at the place of occurrence cannot be doubted. The ocular evidence stand totally contradicted from the doctor’s evidence who has not found any charring marks upon the deceased. There are no independent witnesses. The prosecution has relying upon two witnesses who were definitely unnatural and probable witnesses. There presence at the place of occurrence cannot be doubted. The manner in which they upheld the prosecution case creates doubt that whether the prosecution has something to withhold from the court. Minor variations can be reconciled. But when the variations are major then onus is upon the prosecution’s efficacy to bring the actual version of the occurrence. Even two witnesses have contradicted themselves so far as it relates to manner of firing which proved fatal. The witnesses have contradicted themselves so far manner of firing is concerned. Though, they are consistent with regard to time of occurrence but the doctor’s version has given a complete go by to their version. This contradiction between the oral and medical versions creates doubt that the prosecution was right in bringing the correct version of the occurrence before the court or not. Once a doubt is created then the benefit of doubt goes to the appellants. Similar is the position here. 11. Thus in the aforesaid facts and circumstances of the case as well as taking into account the deficiency, infirmity persisting on the record, we feel inclined to set aside the judgment of conviction and sentence recorded by the learned trial court. 12. In the result, the judgment of conviction and order of sentence is set aside. The appeal is allowed. The appellants are already on bail hence they are acquitted of the charges and discharged from the liabilities of their respective bail bonds.