JUDGMENT (Per: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH) The 11 appellants have filed this appeal against the judgment of conviction and order of varying sentences dated 04.04.1990 as passed against them by the Additional District & Sessions Judge, Banka in Sessions Trial No.208 of 1983/224 of 1990. Appellant-Guneshwar Yadav has been found guilty of an offence punishable under Sections-302 and 148 of the Indian Penal Code (hereinafter in short IPC). He has been sentenced to rigorous imprisonment for life and rigorous imprisonment for 3 years respectively and sentences were ordered to run concurrently. Appellant-Baleshwar Yadav and appellant-Basudeo Yadav, both having been convicted under Section-147 IPC simplicitor, have been released on probation of one year considering their age. Appellant-Chhagu alias Chhanguri Yadav has been held guilty under Section-148 IPC and sentenced to 2 years rigorous imprisonment. The rest of the appellants have been found guilty under Section-147 IPC and sentenced to one year rigorous imprisonment as such. It may be mentioned that the appeal so far as appellant-Kailash Yadav alias Punni Yadav, appellant-Siban Yadav and appellant-Basudeo Yadav stands abated as consequence of their death. It may be noticed that originally there were 12 accused persons. One Kailash Yadav, though was tried, he has been acquitted by the Trial Court itself. It may also be noticed here that in the memo of appeal itself it has been urged that so far as appellant-Panchi Yadav is concerned, he was undisputedly much less than 18 years at the time when the offence is said to have been committed and as such in terms of the Juvenile Justice (Care and Protection of Children) Act, 2000 and in particular Section-21 thereof, even if he is found to be guilty, cannot be sentenced. Upon examination of records, we find that the submission is not without merit. The Trial Court itself has assessed his aged to be 22 years when his statement was recorded under Section-313 Cr.P.C. and, taking that into account, he would be about 16 years of age when the offence is said to have committed. We need not want to go in this aspect in view of the order that we propose to pass. The prosecution case is based upon the fardbeyan of one Tetar Mandal (P.W.3), the son of the deceased Mahngu Mandal as recorded at 2 pm on 31.05.1982 at the Rajoun Police Station, now district Banka (earlier Bhagalpur). We need not want to go in this aspect in view of the order that we propose to pass. The prosecution case is based upon the fardbeyan of one Tetar Mandal (P.W.3), the son of the deceased Mahngu Mandal as recorded at 2 pm on 31.05.1982 at the Rajoun Police Station, now district Banka (earlier Bhagalpur). The fardbeyan is recorded by Mr. Nirshu Narayan Singh, Officer-in-Charge of Rajoun Police Station, who, having registered the F.I.R., was also the Investigating Officer initially but has not been examined in Court. It may be noted that there is no explanation why he has not been examined. Before proceeding further, we may note that apparently in order to overcome this deficiency, the Court permitted the prosecution to examine one Md. Sakoor, an Advocates Clerk to prove the case diary to the extent written by the said Investigating Officer, which was marked as Ext.6. We have repeatedly held that this is totally impermissible. This “Sankatmochan witness” who has nothing to do with the case could not and ought not to have been permitted to take the stand and that too to exhibit and prove the case diary, which is then marked as exhibit and used as evidence. This is contrary to Sections-162 (2) & 172 (2) Cr.P.C. The sooner this practice is given up by the Trial Court better it is. The prosecution case is based upon the fardbeyan of Tetar Mandal (P.W.3), inter alia, alleging that his father, the victim Mahngu Mandal was the battaidar (crop sharer) in respect of 81 bighas of land belonging to Vakil Rai. Vakil Rai had sold the said land to appellants including the house built on those agricultural lands by the deceased. Because of this there were litigations between the parties and, allegedly, at 11 am on 31.05.1982, the appellants came and appellant-Guneshwar Yadav who had a pistol shot Mahngu Mandal from close range when he was sitting on a cot and he dropped dead on the cot itself. The appellant-Chhagu alias Chhanguri Yadav was armed with a Bhala (spear). The rest of the appellants had lathies in their hands. After Mahngu Mandal having been shot dead all the appellants ran away. Upon this fardbeyan being recorded at the Rajoun Police Station a formal F.I.R. was registered and the Officer-in-Charge, who recorded the fardbeyan, started investigation and reached the village at about 4 pm. The rest of the appellants had lathies in their hands. After Mahngu Mandal having been shot dead all the appellants ran away. Upon this fardbeyan being recorded at the Rajoun Police Station a formal F.I.R. was registered and the Officer-in-Charge, who recorded the fardbeyan, started investigation and reached the village at about 4 pm. He drew up inquest report and sent the dead body for postmortem examination. On the next day, the postmortem was performed at Bhagalpur Medical College & Hospital and the postmortem report has been proved and marked as Ext.1 by Mr. Ganesh Prasad Sinha, a Pharmacist of the Banka Hospital in view of the death of the doctor. Thereafter, the other witnesses were examined by the Investigating Officer and then investigation was handed over to Mr. Narayan Prasad Singh (P.W.6) who also then handed over the investigation to the third Investigating Officer who concluded the investigation and filed the charge-sheet against 12 persons but one person has been acquitted by the Trial Court. Upon the charge-sheet being filed, the cognizance having been taken, the case was committed to the Court of Sessions where the charges were framed against all the appellants under Section-302/149 IPC but the appellant-Guneshwar Yadav was separately charged under Sections-302 IPC. All the appellants pleaded not guilty were tried and convicted as aforesaid. Hence, this appeal. In order to establish the charge, the prosecution has examined in all 11 witnesses. In the fardbeyan large number of persons are mentioned as having seen the incident. None of the witnesses with the exception of informant can be said to be eye-witness though several independent witnesses are named in the fardbeyan, they are not examined in Court, except one i.e. Naresh Mandal (P.W.10). He is again only tendered. The law with regard to such tendered witnesses is well settled that if a prosecution witness is merely tendered and does not speak anything in examination-in-chief then it is to be assumed that the said witness has been given up by the prosecution and their non-examination seriously affects the credibility of the prosecution case as has been held by the Apex Court in the case of Sukhwant Singh versus State of Punjab since reported in AIR 1995 Supreme Court 1601. This becomes material when we see the other witnesses as examined on behalf of prosecution. This becomes material when we see the other witnesses as examined on behalf of prosecution. P.W.1-Bharoshi Mandal, though professes to be an independent witness, a suggestion is made to him that the deceased was his uncle, he admits that he was uncle as per the village relationship. He is not named in the F.I.R. and clearly admits that after hearing the gun shot he had come out and allegedly only seen that the appellants were fleeing away. It is the informant P.W.3-Tetar Mandal who disclosed him the names of the assailants. In cross-examination, he admits that he was sleeping in the house when he heard the gun shot, therefore, he is not an eye-witness. P.W.2-Poshan Mandal is the brother of the informant and son of the deceased. In his examination in chief, he states that his father, the deceased Mahngu Mandal had battai land (share crop lands). Those lands belonged to one Vakil Rai but Vakil Rai had sold those lands to appellant-Guneshwar Yadav and others. On those agricultural lands the deponent?s house is also situated. This led to several cases between the parties. The appellants were trying to plough those lands as purchased by them and they had been stopped in the morning itself by the deceased and, as such, the retaliation. This is of some importance because when we come to the evidence of the second Investigating Officer, who is the only Investigating Officer among the three who have been examined in Court, i.e., Narayan Prasad Singh (P.W.6), he clearly states that he had asked the witnesses to produce the papers in support of the alleged sale of land or battai land (share crop) but none were produced before him nor even in Court. What to talk of P.W.2-Poshan Mandal similar story is spun by others. There is not a chit of paper produced in support thereof to establish any sale of land by Vakil Rai to any of the appellants. Some orders of Courts in respect of Sections-144 & 145 Cr.P.C. proceedings have been brought on record to which we would advert at the appropriate stage because, in our view, those documents cannot be looked into. P.W.2-Poshan Mandal, it may be noticed, is named as eye-witness in the F.I.R. and he stands by his version that appellant-Guneshwar Yadav shot his father while he was sitting on the cot and the rest of the persons ran away. P.W.2-Poshan Mandal, it may be noticed, is named as eye-witness in the F.I.R. and he stands by his version that appellant-Guneshwar Yadav shot his father while he was sitting on the cot and the rest of the persons ran away. In his cross-examination, he admits that it is only 10 minutes after his father was shot that they all started shouting. He admits in cross-examination that though he, his brothers and his mother were present but no one was even touched nor anything were looted from the house. He denies the suggestion that the appellants had not committed the murder and had been falsely implicated. We then come to P.W.3-Tetar Mandal, the informant and the son of the deceased, Mahngu Mandal. He again claims to be an eye-witness. He also claims that in the morning when some of the appellants were trying to plough the field and were stopped as such at about 11?o clock they all came and in the manner as stated in the fardbeyan his father was shot dead. He also states that the reason was the dispute with regard to the property purchased by the appellants but, as noticed earlier, he is also unable to produce any paper with regard to or in support of assertions that the appellants purchased any land from Vakil Rai of which the father of this witness was battaidar. What is more important in the cross-examination of this witness who is the informant and the son of the deceased, he admits that the great grandfather of the appellant-Guneshwar Yadav, Chhagu Yadav alias Chhanguri Yadav and Panchi Yadav were recorded sikmidar (share cropper-occupancy raiyat) of the land. This is of some importance because if that be so then the claim that the deceased was the battaidar of the said lands is not sustainable. This admission in cross-examination, as rightly submitted by the learned counsel for the appellants, creates a grave doubt upon the prosecution story of the motive for the murder rather it gives more reason for false implication where a recognized sikmidar is being sought to be unsettled by someone, i.e., the deceased Mahngu Mandal by this false implication. We then come to P.W.4-Sundar Mandal. He is also the son of the deceased, Mahngu Mandal but is not named as an eye-witness in the fardbeyan. We then come to P.W.4-Sundar Mandal. He is also the son of the deceased, Mahngu Mandal but is not named as an eye-witness in the fardbeyan. He in his examination-in-chief itself states that he had come to the place of occurrence after hearing the firing of pistol. He had not seen but had heard the firing of pistol. In his cross-examination, he appears to be a bit confused whether the shot was fired from pistol or from gun and what he had stated before the Investigating Officer but suffice to say that he is not an eye-witness. We then have another important witness P.W.7-Reshmi Devi who is the wife of the deceased Mahngu Mandal. As per the fardbeyan and as per the testimony of the informant himself and his other brothers she is supposed to be an eye-witness. She has seen the whole incident but she is merely tendered. She makes no statement in her examination-in-chief. We have already indicated the law in this regard. We will refer to this again. We then have P.W.8-Bhudeo Mandal who is again not an eye-witness. In his cross-examination, he admits that the names of the appellants were disclosed to him by the informant. We then have P.W.9-Ramcharitra Mandal who is a neighbour and again admits that he is not an eye-witness. This is so far as witnesses to the occurrence are concerned. Thus, we have the two brothers, i.e., the informant, P.W.3-Tetar Mandal and P.W.2-Poshan Mandal, who claimed to be eye-witnesses. There were at least two other eye-witnesses who had been produced in Court by the prosecution being the wife of the deceased, Reshmi Devi (P.W.7) and Naresh Mandal (P.W.10) who is the solitary independent witness. The later two have been tendered. The inference would be that had they spoken it would have been against the prosecution. It is in that view of the matter the Apex Court in the case of Sukhwant Singh (supra) had said that merely tendering a witness for cross-examination amounts to prosecution giving up the witness and it seriously prejudices the case of the prosecution and affects its credibility. From the evidence as noticed above, it appears to us that there are only two eye-witnesses and both are highly interested. They are the sons of the deceased. They have tried to set up a motive but have failed to establish the same. From the evidence as noticed above, it appears to us that there are only two eye-witnesses and both are highly interested. They are the sons of the deceased. They have tried to set up a motive but have failed to establish the same. The Investigating Officer, Narayan Prasad Singh (P.W.6) has clearly stated that he had demanded papers in support of their assertion but they had failed to produce it. Even in the Court they failed to produce any such paper with regard to sale of land by Vakil Rai to either of the appellants. The motive also fails to be established when P.W.3-Tetar Mandal accepts that the great grandfather of appellants-Guneshwar Yadav, Baleshwar Yadav, Chhagu Yadav alias Chhanguri Yadav and Panchi Yadav was recorded as sikmidar. Thus, it is difficult for us to accept the evidence even at its face value. There are other reasons also. Firstly, as we have noticed earlier, the prosecution tried to bring on record several documents in course of hearing of the case before the Trial Court. The stage was of final hearing much after prosecution and defence had closed its case and the accused persons had been examined under Section-313 Cr.P.C. The Trial Court, when objection was raised in this regard, was of the opinion that no prejudice is caused because if the defence so wanted they could lead further evidence. These documents were not required to be supplied under Section-207 Cr.P.C. Firstly, when the argument starts then only with the leave of the Court, pursuant to application filed under Section-311 Cr.P.C., any further evidence can be brought on record. Secondly, if any such evidence is brought on record at this stage and to be used by the prosecution against the accused persons then that evidence being a circumstance against the accused persons, the accused persons have to be re-questioned and their statements retaken under Section-313 Cr.P.C. Not doing so would be fatal to prosecution because the prosecution then cannot use these documents as against the accused persons. They not having been put to accused persons in the statement to be recorded under Section-313 Cr.P.C. those circumstances cannot be used by the Trial Court. Now, we may take up the evidence of P.W.5-Ganesh Prasad Sinha. He is a Pharmacist in the Banka Hospital and states that Dr. S.N.P. Singh, who performed the postmortem examination, was posted at Banka. They not having been put to accused persons in the statement to be recorded under Section-313 Cr.P.C. those circumstances cannot be used by the Trial Court. Now, we may take up the evidence of P.W.5-Ganesh Prasad Sinha. He is a Pharmacist in the Banka Hospital and states that Dr. S.N.P. Singh, who performed the postmortem examination, was posted at Banka. He is dead and, accordingly, the postmortem report prepared by the said Dr. S.N.P. Singh is proved by him. This postmortem report is of some importance. It notices the injuries found on the person of the deceased. We have seen that the story set up by the prosecution is singular. Appellant-Guneshwar Yadav came accompanied with the rest of the appellants and took out his pistol and shot the deceased Mahngu Mandal and thereafter everybody escaped. The story, thus, is of singular shot being fired from a pistol. When we see the medical evidence through the postmortem report there is a big discrepancy. The doctor finds a bullet injury through and through the body but then what he finds also is several pellets imbedded in the body as well as in the lungs. The prosecution has not even suggested the case of two shots from two firearms being fired. The police did recover the bullet which had gone through the body and had been seized from the alleged place of occurrence. The postmortem report clearly states that few pellets were recovered from the body were handed over to the Investigating Officer in a sealed plastic bag. The prosecution case is consistent with regard to a single shot from the pistol. The inquest report mentions recovery of bullet head from the place of occurrence. The postmortem report finds a bullet traveling through the body with entry and exit holes as also few pellets imbedded in chest and lungs. The prosecution evidence further is that the shot was fired form the pistol and not from the gun or a rifle. This raises more questions and creates doubt whether the prosecution has come up with a true story. Was it a rifle that was used? Was it a pistol that was used? Were two shots fired or one shot fired, one was a bullet and others were pellets? This is inconsistent with the prosecution case that the appellant-Guneshwar Yadav fired once from his pistol and then all the appellants ran away. Was it a rifle that was used? Was it a pistol that was used? Were two shots fired or one shot fired, one was a bullet and others were pellets? This is inconsistent with the prosecution case that the appellant-Guneshwar Yadav fired once from his pistol and then all the appellants ran away. Thus seen, there is no independent witness. Two witnesses who are eye-witnesses one of whom was the wife of the deceased and the other independent witness was merely tendered. The other two witnesses claiming to be eye-witnesses are sons of the deceased who, as per the fardbeyan itself, are in litigating terms with the appellants and hence interested witnesses. The prosecution case states that only one shot was fired but the postmortem report confirms that more than one shot was fired and more than one firearm was used. In this view of the matter, we are of the considered opinion that the appellant-Guneshwar Yadav is entitled to benefit of doubt and his conviction under Section-302 IPC cannot be sustained. The manner of occurrence does not stand established beyond reasonable doubt. So far as the charge under Section-148 or for that matter under Section-147 IPC is concerned, if the substantive allegation and the charge under Section-302 IPC is found to be unsustainable, the rest would accordingly also fall. We may note that all the witnesses are consistent that the other appellants merely came and disappeared. They neither uttered a single word nor did they take any action. Whether they were participants or spectators is not known but, as the substantive case of the prosecution does not stand to scrutiny, we are not inclined to pursue this matter with regard to Section-149 IPC or for that matter Section-148 IPC or Section-147 Cr.P.C. In the result, this appeal is allowed. The judgment of conviction and order of sentence passed against the appellants is set aside. They are acquitted from the charges levelled against them. They are freed from their liabilities of bail bonds.