V.N. SINHA, J.:–Death Reference No. 7 of 2013 and Cr. Appeal (DB) Nos. 497, 483, 934 of 2013 arise out of Judgment, order of conviction, sentence dated 18.04.2013, 25.04.2013, passed by Ad hoc Additional District and Sessions Judge-V, Bhojpur at Ara, in Sessions Trial No. 434 of 2010, whereunder the appellants of the aforesaid appeals have been convicted for the offence under Sections 302/120-B, 201 of the Penal Code and awarded death sentence for conviction under Sections 302/120-B of the Penal Code, seven years rigorous imprisonment for conviction under Section 201 of the Penal Code with further direction to pay fine of Rs. 10,000/-. In default of payment of fine they have been further awarded sentence of simple imprisonment for three months. Arjun Chourasia, Appellant No. 1 in Cr. Appeal (DB) No. 934 of 2013 has further been convicted for the offence under Section 364 of the Penal Code and sentenced to undergo rigorous imprisonment for ten years with further direction to pay fine of Rs. 25,000/-. In default of payment of fine to further undergo simple imprisonment for three months. 2. Death Reference No. 8 of 2013 and Cr. Appeal (DB) No. 446 2013 arise out of Judgment, order of conviction, sentence dated 18.04.2013, 25.04.2013, passed by Ad hoc Additional Sessions Judge-V, Bhojpur, Ara, in Sessions Trial No. 123 of 2011, whereunder the appellant of Cr. Appeal (DB) No. 446 of 2013 has been convicted for the offence under Sections 302/120-B, 201 of the Penal Code and awarded death sentence for conviction under Sections 302/120-B of the Penal Code, seven years rigorous imprisonment for conviction under Section 201 of the Penal Code with further direction to pay fine of Rs. 10,000/-. In default of payment of fine he has been further awarded sentence of simple imprisonment for three months. 3. Prosecution case, as set out in the written report dated 09.08.2010 (Ext. 3) of the informant Anil Singh (P.W. 16) and the evidence of the prosecution witnesses, is that the deceased Amrit Raj Tomar @ Pintu, nephew of the informant (P.W. 16) had left his residence on 08.08.2010 around 6.45 P.M. on his black Pulsar motorcycle along with Accused No. 1 Arjun Chourasia. Victim Amrit Raj Tomar @ Pintu did not return to his residence on 08.08.2010 until late in the evening. Victim Amrit Raj Tomar @ Pintu did not return to his residence on 08.08.2010 until late in the evening. Father of the victim Satyendra Singh (P.W. 9) telephonically asked his brother-in-law Anil Singh (P.W. 16) between 9.00-9.30 P.M. about the whereabouts of his son and further informed him that the victim left the residence on 08.08.2010 at 6.45. P.M. on his motorcycle along with Accused No. 1 Arjun Chourasia. P.W. 9 again telephoned P.W. 16 on 09.08.2010 between 4.00-4.30 A.M. and informed him that an employee of Krishna Jewellers has come to his residence around 4.00 A.M. to inform him that his son Amrit Raj Tomar @ Pintu has been killed slitting his neck at about 8.00 P.M. in Nawadih orchard. His dead body is lying in the same orchard. The dead body has been completely defaced by sprinkling acid on the body. Informant (P.W. 16) having learnt about the murder of his nephew Amrit Raj Tomar @ Pintu went to Shahpur P.S. at about 5.00 A.M. along with Munna Sai (P.W. 5), Mirtunjay Rai (P.W. 3) and others and then went to Nawadih orchard. Having seen the dead body confirmed that his nephew Amrit Raj Tomar @ Pintu has been killed, submitted written report on 09.08.2010 at 8.30 A.M. (Ext. 3), on the basis of which First Information Report of the case (Ext. 11/1) was also drawn against Accused No. 1 Arjun Chourasia and others on 09.08.2010 at 8.30 A.M. 4. Earlier P.W. 7 Radha Mohan Ram while returning from patrolling duty in the evening of 08.08.2010 after 9.00 P.M. noticed a mob of villagers collected in Nawadih orchard, made enquiry from the villagers and learnt that a man has been killed, his body thrown in the orchard, came near the body and confirmed that an unknown man has been killed, his body has been thrown in the orchard informed Shahpur P.S. by his mobile about the incident, presence of the dead body in the orchard. On the basis of the information received from P.W. 7 entries were made in the station diary by P.W. 17 Hare Krishna Mandal about the incident and the presence of the dead body in Nawadih orchard vide Station Diary Entry No. 162 dated 08.08.2010. Having made the entries in the station diary P.W. 17 along with police force came to Nawadih orchard. Having made the entries in the station diary P.W. 17 along with police force came to Nawadih orchard. P.W. 17 having reached the orchard saw the dead body, made search of the body and from the inner pocket of the full-pant of the deceased found a slip of Krishna Jewellers dated 13.07.2010 indicating payment of Rs. 29,000/- by Amrit Raj Tomar @ Pintu, resident of Hariji Hata, Ara to Krishna Jewellers. Having discovered the slip indicating payment of Rs. 29,000/- by Amrit Raj Tomar @ Pintu to Krishna Jewellers P.W. 17 contacted the proprietor of Krishna Jewellers Sri Gappuji (not examined) in the same night and confirmed from him the identity of the deceased. Staff of Krishna Jewellers also went to the residence of the deceased around 4.00 A.M. on 09.08.2010 and informed P.W. 9 that a dead body has been found in Nawadih orchard and from the inner pocket of the full-pant of the deceased a slip has been recovered wherefrom it appears that Amrit Raj Tomar @ Pintu purchased jewelleries worth Rs. 29,000/- from Krishna Jewellers on 13.07.2010. P.W. 9 having learnt about the slip recovered from the inner pocket of the dead body found in Nawadih orchard telephonically informed his brother-in-law (P.W. 16) on 09.08.2010 at 4.30 A.M. that staff of Krishna Jewellers has come to his house to inform him about the murder of his son Amrit Raj Tomar @ Pintu and his dead body is found thrown in Nawadih orchard. P.W. 17 having confirmed about the identity of the deceased conducted inquest of the dead body in Nawadih orchard on 09.08.2010 at 6.30 A.M. and on his instruction A.S.I. Harendra Kumar Singh (not examined) drew the inquest report (Ext. 9). Having conducted inquest proceeding P.W. 17 prepared the dead body challan on 09.08.2010 between 7.00-7.30 A.M. as he drew the challan at 7.00 A.M. but issued the same to the Chaukidar Radha Mohan Ram (P.W. 7) and Sambhu Paswan (not examined) at 7.30 A.M. Having dispatched the dead body for post mortem seizure of the incriminating articles including the motorcycle key found at the place of occurrence (Nawadih orchard) was made by P.W. 17 on 09.08.2010 at 7.45 A.M. vide seizure list (Ext. 10). 5. 10). 5. P.W. 16 having received telephonic information about the murder of his nephew Amrit Raj Tomar @ Pintu from P.W. 9 on 09.08.2010 between 4.00-4.30 A.M. came to Shahpur P.S. at 5.00 A.M. along with Munna Sai (P.W. 5), Mirtunjay Rai (P.W. 3) and others and thereafter to the place of occurrence (Nawadih orchard). Having confirmed that the dead body was of his nephew Amrit Raj Tomar @ Pintu submitted his written report (Ext. 3) duly scribed by P.W. 3 Mirtunjay Rai on 09.08.2010 at 8.30 A.M., on the basis of which formal F.I.R. of the present case i.e. Shahpur P.S. Case No. 151/10 was drawn on 09.08.2010 at 8.30 A.M. against Accused No. 1 Arjun Chourasia and others unknown stating that P.W. 17 has taken over the investigation of the case. 6. In the light of the contents of the First Information Report that Amrit Raj Tomar @ Pintu had given loan of Rs. 4 lakhs to Accused No. 1 and that Amrit Raj Tomar @ Pintu left his residence on 08.08.2010 at 6.45 P.M. on his black Pulsar motorcycle along with Accused No. 1 Arjun Chourasia and that his dead body was found by the Chaukidar (P.W. 7) in Nawadih orchard while P.W. 7 returned from Rudra Nagar wooden bridge after his patrolling duty was over at 9.00 P.M. who saw crowd of villagers in Nawadih orchard, made enquiry from the villagers present in the orchard, confirmed about the dead body of unknown, telephonically informed Shahpur P.S. through his mobile about the presence of the dead body of the unknown male in the orchard. Investigating Officer (P.W. 17) having confirmed the identity of the deceased conducted raid in the house, shop of Accused No. 1 Arjun Chourasia on 09.08.2010 at 4.15 A.M. but he was not found either in his house or in the shop. Dy. S.P., Ara Town informed the Investigating Officer (P.W. 17) that Accused No. 4 Ashok Prasad @ Naga was called, interrogated by the family members of the deceased and they found cut injury on his both the palms (aforesaid fact has been stated by the Investigating Officer in paragraph 8 of his deposition). On the same day Dy. S.P., Ara Town further informed P.W. 17 on his mobile that motorcycle of the deceased is parked in the motorcycle stand of Ara Railway Station. On the same day Dy. S.P., Ara Town further informed P.W. 17 on his mobile that motorcycle of the deceased is parked in the motorcycle stand of Ara Railway Station. Having received such information Investigating Officer (P.W. 17) and the informant (P.W. 16) came to Ara railway station where the informant identified the motorcycle of the deceased parked in the parking stand of Ara railway station with a slip given by the in-charge of parking stand indicating that the person, who parked the motorcycle in the stand, had not paid the parking charge of Rs. 5/- shown due on the slip placed on the motorcycle. The slip found on the motorcycle has been marked Material Exhibit-I Motorcycle identified by the informant, however, got ignited with the motorcycle key recovered from the place of occurrence (Nawadih orchard). Informant having identified the motorcycle of the deceased, the motorcycle was handed over to him as the same got ignited with the motorcycle key recovered from the place of occurrence. 7. P.W. 17 having obtained print out of the mobile of Accused No. 1 Arjun Chourasia and Accused No. 4 Ashok Prasad @ Naga bearing SIM No. 9608696392 on 11.08.2010, in the light of the mobile details appearing from the print out, arrested Ashok Prasad @ Naga on 12.08.2010 from Masjid Chowk as he attempted to escape having seen the police party but was overpowered. From his possession one Nokia mobile set having SIM No. 9608696392 was recovered vide seizure list (Ext. 10/1) dated 12.08.2010 drawn at 7.30 A.M. in presence of P.W. 5 Sanjay Prasad, who put his signature over the seizure list as Sanjay Prasad (Munna Sai) and P.W. 1 Sunil Singh, maternal uncle of the deceased and brother of the informant (P.W. 16), copy whereof was also given to Accused No. 4 Ashok Prasad @ Naga. In token of having received the seizure list Accused No. 4 Ashok Prasad @ Naga put his signature on the same. Nokia mobile set recovered from Accused No. 4 Ashok Prasad @ Naga was kept in Malkhana of the P.S. by P.W. 17. Accused No. 4 Ashok Prasad @ Naga was arrested vide Station Diary Entry No. 235 dated 12.08.2010, subjected to interrogation in which he made disclosure statement which was recorded in paragraph 70 of the case diary as also on the separate sheet but was not proved by the Investigating Officer. Accused No. 4 Ashok Prasad @ Naga was arrested vide Station Diary Entry No. 235 dated 12.08.2010, subjected to interrogation in which he made disclosure statement which was recorded in paragraph 70 of the case diary as also on the separate sheet but was not proved by the Investigating Officer. To verify the disclosures made by Accused No. 4 Ashok Prasad @ Naga Investigating Officer (P.W. 17) along with Accused No. 4 Ashok Prasad @ Naga, P.W. 18 A.S.I. Umesh Paswan, P.W. 13 A.S.I. Arbind Kumar, A.S.I. Rajesh Kumar Gupta (not examined) and members of Special Auxiliary Force (S.A.F.) proceeded on a police jeep. No sooner the vehicle reached near Rudra Nagar wooden bridge one person was seen coming from opposite direction. Having seen the said person Accused No. 4 Ashok Prasad @ Naga loudly pointed that the person coming from opposite direction on a motorcycle is co-accused Tarkeshwar Prasad @ Talkeshwar Sah. Co-accused Tarkeshwar Prasad @ Talkeshwar Sah was also apprehended with his LG-Reliance mobile set bearing SIM No. 9334248490, Hero-Honda motorcycle, Gamcha seized vide seizure-list dated 12.08.2010 (Ext. 10/2) drawn at 11.30 A.M., copy whereof was also handed over to him. In token of having received the seizure list Tarkeshwar Prasad @ Talkeshwar Sah put his signature on the same. Accused Tarkeshwar Prasad @ Talkeshwar Sah was also brought to the police station and arrested vide Station Diary Entry No. 239 dated 12.08.2010. After arrest of Tarkeshwar Prasad @ Talkeshwar Sah Investigating Officer (P.W. 17) along with police party comprising of P.Ws. 18, 13 and others again proceeded to verify the disclosures made by Accused No. 4 Ashok Prasad @ Naga and came to Banahi railway station where Accused No. 4 Ashok Prasad @ Naga took P.W. 17 and other members of the police party to the shop of Tarkeshwar Prasad situate 300 yards west of Banahi railway station, pointed towards a hand pump and stated that after the occurrence he and Accused No. 3 Nishu Kumar had come to the hand pump and had taken bath. Those present near the shop confirmed that the shop belongs to Tarkeshwar Prasad. Near the hand pump a plastic wrapper of Lifebuoy soap was also seen. Those present near the shop confirmed that the shop belongs to Tarkeshwar Prasad. Near the hand pump a plastic wrapper of Lifebuoy soap was also seen. From the shop, hand pump Accused No. 4 Ashok Prasad @ Naga took the police party to the medicine shop of P.W. 6 Hareram Yadav a registered medical practitioner located at Banahi near railway station at a distance of 50 yards from the shop of Tarkeshwar Prasad. Accused No. 4 Ashok Prasad @ Naga further disclosed that in the shop of P.W. 6 Accused No. 3 Nishu Kumar was given three stitches in his palm. In the light of the disclosure made by Accused No. 4 Ashok Prasad @ Naga P.W. 17 recorded the police statement of P.W. 6 Hareram Yadav, who submitted a written application indicating the treatment given by him to Accused No. 3 Nishu Kumar. Having seen the written application of P.W. 6, P.W. 17 identified the application given by P.W. 6 and stated that it is the same application which P.W. 6 wrote in his presence as also put his signature. Written application of P.W. 6 has been marked as Ext. 4. From the medicine shop of P.W. 6 Accused No. 4 Ashok Prasad @ Naga took P.W. 17 and the police party to Banahi railway station. From Banahi railway station Accused No. 4 Ashok Prasad @ Naga took P.W. 17 and the police party to Sikaria railway halt on foot along the railway track. Blood stained clothes of Accused No. 4 Ashok Prasad @ Naga and Accused No. 3 Nishu Kumar were found thrown along the railway track within a distance of 200-250 yards. Accused No. 4 Ashok Prasad @ Naga having led the recovery of his clothes along with the clothes of Accused No. 3 identified the clothes. Seizure list of the clothes recovered at the instance of Accused No. 4 Ashok Prasad @ Naga was prepared by P.W. 17 on 12.08.2010 at 15.00 hours in between Banahi railway station and Sikaria halt over which P.W. 13 A.S.I. Arbind Kumar and P.W. 18 A.S.I. Umesh Paswan put their signature. The seizure list has been marked as Ext. Seizure list of the clothes recovered at the instance of Accused No. 4 Ashok Prasad @ Naga was prepared by P.W. 17 on 12.08.2010 at 15.00 hours in between Banahi railway station and Sikaria halt over which P.W. 13 A.S.I. Arbind Kumar and P.W. 18 A.S.I. Umesh Paswan put their signature. The seizure list has been marked as Ext. 10/3, copy whereof was also handed over to Accused No. 4 Ashok Prasad @ Naga, who not only put his signature over the same but also wrote that the clothes referred to in the seizure list have been recovered at his instance from the side of the railway track. Aforesaid endorsement made by Accused No. 4 Ashok Prasad @ Naga on the seizure list was identified by P.W. 17 stating that the same was made in his presence, which was marked as Ext. 12. From Banahi railway station Accused No. 4 Ashok Prasad @ Naga led P.W. 17 and the police party to the place of occurrence (Nawadih orchard) indicating the way. He also pointed in the orchard the acid burnt grass, blood stains, pieces of acid bottle together with the place where Tarkeshwar Prasad @ Talkeshwar Sah parked his motorcycle indicating the mark of the motorcycle tyre. From the place of occurrence (Nawadih orchard) P.W. 17, police party and Accused No. 4 Ashok Prasad @ Naga returned to the police station and the seized items were kept in the Malkhana of the police station. Having verified the disclosures made by Accused No. 4 Ashok Prasad @ Naga he was detained in Hazat of the police station. Tarkeshwar Prasad @ Talkeshwar Sah was taken out from the police station Hazat and interrogated. He also made disclosure statement, which was recorded in paragraph 86 of the case diary as also on the separate sheet but was not proved by the Investigating Officer (P.W. 17). Having recorded the disclosure statement made by Tarkeshwar Prasad @ Talkeshwar Sah, Tarkeshwar Prasad @ Talkeshwar Sah led P.W. 17 and the police party to Nawadih orchard and pointed out towards the place in the orchard where the occurrence had taken place by pointing towards the burnt grass and tyre marks of the motorcycle. From the orchard Tarkeshwar Prasad @ Talkeshwar Sah took P.W. 17 and the police party to his shop near Banahi railway station which he got opened. From the orchard Tarkeshwar Prasad @ Talkeshwar Sah took P.W. 17 and the police party to his shop near Banahi railway station which he got opened. Inside the shop one bucket and lota (a small round pot) was found which was used by Accused No. 3 Nishu Kumar and Accused No. 4 Ashok Prasad @ Naga for taking bath after the occurrence at the hand pump, which was also pointed out by Tarkeshwar Prasad @ Talkeshwar Sah. The hand pump was found in working order. Tarkeshwar Prasad @ Talkeshwar Sah also took P.W. 17 and the police party to the shop of P.W. 6 Hareram Yadav which is situate west of his shop and stated that it is in the shop of P.W. 6 Accused No. 3 Nishu Kumar was given three stitches after he put on Bol-Bum attire. Tarkeshwar Prasad @ Talkeshwar Sah also took P.W. 17 and the police party to Bombay Cloth House situate south of Banahi railway platform and stated that from Bombay Cloth House four sets of Bol-Bum dress was purchased. In the light of the disclosure made by Tarkeshwar Prasad @ Talkeshwar Sah proprietor of Bombay Cloth House P.W. 8 Anand Kumar was called and his statement was recorded. Having recorded the statement of P.W. 8 Anand Kumar P.W. 17 and the police party together with Tarkeshwar Prasad @ Talkeshwar Sah returned to the police station and Tarkeshwar Prasad @ Talkeshwar Sah was detained in the Hazat of the police station. 8. Investigation Officer (P.W. 17) obtained print out of the mobile of Accused No. 1 Arjun Chourasia in which SIM bearing No. 9386083081 issued in the name of his brother Accused No. 2 Vinod Chourasia was functional. P.W. 17 also obtained print out of mobile no. 9835007066 of Accused No. 2 Vinod Chourasia for the period between 25.07.2010-09.08.2010. P.W. 17 having apprehended Accused No. 4 Ashok Prasad @ Naga on 12.08.2010 also found cut injury on his both the palms, referred him to a hospital for treatment and obtained his injury report, which is noted in paragraph 102 of the case diary (The injury report, however, is neither on the record nor has been made Exhibit during trial). 9. 9. Perusal of forwarding memo dated 13.08.2010 whereunder both Accused No. 4 Ashok Prasad @ Naga and Tarkeshwar Prasad @ Talkeshwar Sah were forwarded indicates that both accused made disclosure statement confessing their guilt as also disclosing the name of their accomplice Accused No. 1 Arjun Chaurasai and Accused No. 3 Nishu Kumar. Further perusal of forwarding memo indicates that Accused No. 4 Ashok Prasad @ Naga had cut injury in both of his palms. Perusal of order dated 13.08.2010 of Chief Judicial Magistrate, Bhojpur at Ara indicates that along with forwarding memo confessional statement made by Accused No. 4 Ashok Prasad @ Naga and Tarkeshwar Prasad @ Talkeshwar Sah was also forwarded. Further perusal of order dated 13.08.2010 indicates that both Accused No. 4 Ashok Prasad @ Naga and Tarkeshwar Prasad @ Talkeshwar Sah did not make any complain of ill-treatment against the escort party. Order dated 13.08.2010, however, does not indicate that on production any cut injury was noticed by the Chief Judicial Magistrate in the palm of Accused No. 4 Ashok Prasad @ Naga. 10. Having forwarded Accused No. 4 Ashok Prasad @ Naga and Tarkeshwar Prasad @ Talkeshwar Sah for judicial remand on 13.08.2010 Investigating Officer (P.W. 17) filed application dated 17.09.2010 before the Chief Judicial Magistrate, Bhojpur at Ara seeking permission to send the incriminating articles seized from the place of occurrence and the clothes from the railway track to the Forensic Science Laboratory, Patna. Permission to send the clothes to the Forensic Science Laboratory, Patna was granted by the Chief Judicial Magistrate under letter dated 18.09.2010, which is evident from F.S.L. report No. 1467/10 dated 08.12.2010 (Ext. 13/1) whereunder F.S.L., Patna reported that human blood was found on all the seized materials including clothes, except Exhibits. Vc and Vd, the vest and Kachhiya (both under garments). The report also stated that the serological examination of the blood stains found on the seized incriminating articles and clothes shall follow. The serological report (Ext. 13) bearing the same number as that of Ext. 13/1 (F.S.L. report No. 1467/10 dated 08.12.2010) but undated though signed on 08.03.2011 was received indicating that the blood group of the stains found on the incriminating articles and the clothes was the same except on Ext. IV marked by Forensic Science Laboratory, which was the soil taken from the place of occurrence (Nawadih orchard). 11. 13/1 (F.S.L. report No. 1467/10 dated 08.12.2010) but undated though signed on 08.03.2011 was received indicating that the blood group of the stains found on the incriminating articles and the clothes was the same except on Ext. IV marked by Forensic Science Laboratory, which was the soil taken from the place of occurrence (Nawadih orchard). 11. Post mortem report of Amrit Raj Tomar @ Pintu under the signature of P.W. 14 Dr. Jai Nand Kumar Singh was received by the Investigating Officer (P.W. 17) on 18.08.2010, wherefrom it appears that post mortem of Amrit Raj Tomar @ Pintu was conducted by P.W. 14 Dr. Jai Nand Kumar Singh on 09.08.2010. P.W. 17 recorded the police statement of the parents, wife, neighbour of the deceased, namely, P.W. 9 Satyendra Singh, P.W. 10 Pramila Singh, Priyanka Kumari (not examined), P.W. 11 Dhanji Singh @ Anant Singh and Sushil Kumar Singh (also not examined) on 22.08.2010 and they all stated that Amrit Raj Tomar @ Pintu had left his residence on 08.08.2010 at 6.45 P.M. on his own black Pulsar motorcycle along with Accused No. 1 Arjun Chourasia, whereafter he never returned. 12. Investigating Officer (P.W. 17) raided the house of Accused No. 1 Arjun Chourasia on 08.09.2010. He was, however, not found in his house. P.W. 17 thereafter came to his Pan-Masala shop where one person, who was managing the shop, having seen the police party tried to escape but was apprehended and from his possession one slip containing mobile number of Accused No. 3 Nishu Kumar 9234299473 along with one cheque of Syndicate Bank for Rs. 3,000/- drawn by Accused No. 1 Arjun Chourasia without indicating the date of the cheque and the name of the drawee together with plain copy of the hand written memorandum of partition, Vakalatnama, surrender document of Accused No. 1 Arjun Chourasia, photo copy of the F.I.R. of present case i.e. Shahpur P.S. Case No. 151/10 was recovered, seized vide seizure list dated 08.09.2010 (Ext. 10/4) drawn at 4.00 P.M. in presence of Kamal Kumar Pandey (not examined) and P.W. 1 Sunil Kumar Singh. The person apprehended disclosed his name as Vinod Chourasia. On the same day P.W. 17 received a blank cheque bearing no. 454783 of Account No. 6575 from the informant, over which Accused No. 1 Arjun Chourasia had put his signature. 10/4) drawn at 4.00 P.M. in presence of Kamal Kumar Pandey (not examined) and P.W. 1 Sunil Kumar Singh. The person apprehended disclosed his name as Vinod Chourasia. On the same day P.W. 17 received a blank cheque bearing no. 454783 of Account No. 6575 from the informant, over which Accused No. 1 Arjun Chourasia had put his signature. On the same day P.W. 17 also received one loan agreement dated 28.02.2009 indicating Accused No. 3 Nishu Kumar had taken loan of Rs. 3 lakhs scribed over non-judicial stamp of Rs. 100/- over which Accused No. 3 Nishu Kumar, Situ Kumari and Shakuntala (both not examined) had put their signature. The cheque and the loan agreement were marked as Material Exhibits II, III. Investigating Officer (P.W. 17) learnt on 17.09.2010 that Accused No. 1 Arjun Chourasia, F.I.R. named accused of the present case has surrendered in Court. He was interrogated by the Investigating Officer in jail in presence of jail officials after obtaining permission from the Court under order dated 17.09.2010. Accused No. 3 Nishu Kumar surrendered on 24.09.2010. After surrender of Nishu Kumar, Investigating Officer (P.W. 17) filed petition dated 25.09.2010 praying, inter alia, to grant police remand of Accused No. 1 Arjun Chourasia and Accused No. 3 Nishu Kumar. Police remand of both Arjun Chourasia and Nishu Kumar was allowed by Chief Judicial Magistrate for 24 hours under order dated 27.09.2010 with direction to produce them on 28.09.2010 at 10:30 A.M. While on police remand, Accused No. 1 Arjun Chourasia and Accused No. 3 Nishu Kumar, both recorded their confessional statement in the night of 27.09.2010, which was noted on a separate sheet of paper as also in paragraphs 215, 231 of the case diary but not proved in Court. Investigating Officer along with the police party took both Accused No. 1 and Accused No. 3 for verification of their confessional statement to the Nawadih orchard, where both pointed out towards the place of occurrence one by one. Nishu Kumar also made attempt to trace the dagger thrown by him in the bush on the date of occurrence but the same could not be found. Nishu Kumar also made attempt to trace the dagger thrown by him in the bush on the date of occurrence but the same could not be found. Both were also taken to Banahi Railway Station where Arjun Chourasia pointed towards the shop of Tarkeshwar Prasad and the hand pump behind the shop and stated that at the same hand pump Accused No. 3 Nishu Kumar and Accused No. 4 Ashok Prasad @ Naga had taken bath after the occurrence and had put on the Bol Bum dress. Both the accused also took the Investigating Officer and the police party to the clinic of P.W. 6 Hare Ram Yadav and stated that Hare Ram Yadav had given stitch in the palm of Accused No. 3 Nishu Kumar. P.W. 6 Hare Ram Yadav saw the stitches given in the palm of Accused No. 3 and confirmed that he had given stitch to Accused No. 3 on the date of occurrence. Arjun Chourasia further took the Investigating Officer and the police party to Bombay Cloth House and Dresses and disclosed that on the date of occurrence he had come to the shop in question along with Tarkeshwar Prasad and had purchased four sets of Bol Bum dress from the shop. P.W. 8 Anand Kumar, proprietor of Bombay Cloth House also confirmed that Accused No. 1 Arjun Chourasia had come to his shop along with Tarkeshwar Prasad in the evening of 08.08.2010 and had purchased four sets of Bol Bum dress. P.W. 8 Anand Kumar also submitted a petition dated 28.09.2010 before P.W. 17 indicating that in the night of 08.08.2010 Accused No. 1 Arjun Chourasia along with Tarkeshwar Prasad had come to his shop and had purchased four sets of Bol Bum clothes. P.W. 8 not only identified his writing but also his signature on the application dated 28.09.2010 and the same was marked Exhibit-5. From Bombay Cloth House Investigating Officer (P.W. 17) took Accused No. 3 Nishu Kumar to Primary Health Centre, Shahpur and requested the doctor to grant a certificate indicating the age of the stitched injury found on both the palms of Accused No. 3. The doctor, however, refused to grant such certificate as according to him such certificate could only be given by a specialist available at Sadar Hospital, Ara. The doctor, however, refused to grant such certificate as according to him such certificate could only be given by a specialist available at Sadar Hospital, Ara. The time of police remand was about to be over, as such, the Investigating Officer (P.W. 17) could not ascertain the age of the palm injury of Nishu Kumar by taking him to the specialist at Ara Sadar Hospital. Both Accused No. 1 and Accused No. 3 were sent to the jail custody without being produced before the Chief Judicial Magistrate, Ara, as from the order-sheet of Chief Judicial Magistrate, Ara maintained in the case, it does not appear that Accused No. 1 and Accused No. 3 were produced before him on 28.09.2010 at 10:30 A.M. or thereafter on that day. During cross-examination of P.W. 17 on 20.07.2011 vide paragraph 24 Accused No. 2 Vinod Chourasia @ Soni was not present in Court but P.W. 17 claimed that if Vinod Chourasia @ Soni is shown to him P.W. 17 would recognize him. Investigating Officer (P.W. 17) further stated in paragraph 31 that Accused No. 3 Nishu Kumar and accused Tarkeshwar Prasad telephonically contacted each other in the evening/night of the occurrence eight times, which is evident from the print-out of the Mobile Telephone No. 9334248490 of Tarkeshwar Prasad, as from the said print-out it is quite evident that calls were made or received from the mobile number of Tarkeshwar Prasad to the Mobile No. 9234299473 of Accused No. 3 Nishu Kumar. Investigating Officer (P.W. 17) further stated that he received print-out of Mobile No. 9386928697, which is in the name of Accused No. 1 Arjun Chourasia and it appears from the said print-out that Vinod Chourasia remained in constant touch with the deceased. Investigating Officer having completed the investigation, submitted charge-sheet against the five accused persons, namely, Arjun Chourasia, Vinod Chourasia, Nishu Kumar, Ashok Prasad @ Naga and Tarkeshwar Prasad @ Talkeshwar Sah on 03.11.2010. 13. In the light of the charge-sheet, learned Chief Judicial Magistrate took cognizance of the offences found true during the investigation and committed the case to the Court of Sessions. The Trial Court framed charges under Sections 302/120B, 364, 201 of the Penal Code. In order to support the charges prosecution examined 19 witnesses. 14. P.W. 1 Sunil Singh is the brother of the informant and maternal uncle of the deceased. The Trial Court framed charges under Sections 302/120B, 364, 201 of the Penal Code. In order to support the charges prosecution examined 19 witnesses. 14. P.W. 1 Sunil Singh is the brother of the informant and maternal uncle of the deceased. He is witness of seizure of mobile from Accused No. 4 Ashok Prasad @ Naga on 12.08.2010 at 7:30 A.M. 15. P.W. 2 Uma Shankar Rai is also a seizure witness of the 12 incriminating articles seized from the Nawadih orchard on 09.08.2010 at 7:45 A.M. vide seizure-list (Exhibit-2). 16. P.W.3 Mritunjay Rai came to the Police Station and place of occurrence along with the informant and is the scribe of the written report dated 09.08.2010 (Exhibit-3) and has also put his signature on the same. 17. P.W. 4 Mithilesh Pathak is also seizure-list witness of the articles seized from the place of occurrence vide seizure-list dated 09.08.2010 drawn at 7:45 A.M. This witness has proved his signature over the seizure-list (Exhibit-2/1). 18. P.W. 5 Sanjay Prasad is the witness of seizure of Nokia Mobile from Accused No. 4 Ashok Prasad @ Naga on 12.08.2010 at 7:30 A.M. vide seizure-list (Exhibit-1). He has identified his signature over the seizure-list marked Exhibit- 1/1. Perusal of the signature, however, indicates that he has also indicated his alias name along with his signature on the seizure-list. In this connection, it is necessary to point out that P.W. 5 also accompanied the informant (P.W. 16) to Shahpur Police Station and Nawadih orchard in the morning of 09.08.2010 and his alias name is included in the written report (Exhibit-3) as the one who accompanied the informant to the Shahpur Police Station and Nawadih orchard along with P.W. 3 Mritunjay Rai and others. 19. P.W. 6 Hare Ram Yadav is a Registered Medical Practitioner having his dispensary near Banahi Railway Station. He is said to have given three stitches to a victim of road accident, who was brought to his clinic by Tarkeshwar @ Talkeshwar Sah on 08.08.2010 at 9:30 P.M. He has also stated in his evidence that the said person was again brought to his clinic by the Officer-in-Charge of Shahpur Police Station. He further stated that at the time of treatment the person has not disclosed his name but he can identify him. He further stated that at the time of treatment the person has not disclosed his name but he can identify him. He also stated that Tarkeshwar Prasad @ Talkeshwar Sah has a grocery shop by the side of his clinic and he has treated that person on the recommendation of Tarkeshwar Prasad. He further confirmed that the four persons had come to his clinic on 08.08.2010 at 9:30 P.M. and they were clad in Bol Bum dress. He also confirmed that in this connection he has given application dated 12.08.2010 (Exhibit-4). Having seen the three accused in the dock, P.W. 6 identified the person whom he had given three stitches in the night of 08.08.2010 but did not point out towards any of the three accused present in dock to whom he has given three stitches, which is evident from his evidence recorded on 08.04.2011 and the order-sheet maintained by the Court below of the same date. 20. P.W. 7 Radha Mohan Ram is the Chowkidar of Shahpur Police Station and in the evening of occurrence was returning after his patrolling duty was over at 9:00 P.M. from Rudra Nagar wooden bridge and when he reached near Nawadih orchard, saw crowd of villagers collected in the orchard. He made enquiries from the villagers and then learnt that a dead body of unknown killed is lying in the orchard. Having seen the dead body of the unknown, he gave information about the presence of the dead body of the unknown in the Nawadih orchard to the Officer-in-Charge, Shahpur Police Station (P.W. 17) through his mobile at 9:45 P.M. According to this witness, Officer-in-Charge (P.W. 17) along with police force came to the Nawadih orchard at 10:30 P.M. and carried the dead body to the Police Station at 10:30 P.M. as also prepared the Inquest Report and other documents at the Police Station in presence of P.W. 7 late in the night. 21. P.W. 8 Anand Kumar is the proprietor of the Bombay Cloth House, who sold four sets of Bol Bum clothes in the night of 08.08.2010 for four persons on the recommendation of his neighbour shopkeeper Tarkeshwar Prasad @ Talkeshwar Sah. P.W. 8 learnt about the identity of the person to whom he sold the four set of clothes in the night of 08.08.2010 on 28.09.2010 when that person came to his shop along with Officer-in-Charge (P.W.17). P.W. 8 learnt about the identity of the person to whom he sold the four set of clothes in the night of 08.08.2010 on 28.09.2010 when that person came to his shop along with Officer-in-Charge (P.W.17). In this connection witness also gave an application to the Officer-in-Charge of Shahpur Police Station dated 28.09.2010 (Exhibit-5). 22. P.W. 9 Satyendra Singh, P.W. 10 Pramila Singh are the father, mother of the deceased. Both the witnesses recorded their police statement before the Investigating Officer on 22.08.2010 and stated before the Investigating Officer that their son had left the residence on his own black Pulsar motorcycle along with Accused No. 1 Arjun Chourasia on 08.08.2010 at about 6:45 P.M. but never returned thereafter. The same version they have reiterated in Court as well. 23. P.W. 11 Dhanjee Singh @ Anant Singh is the neighbour of P.W. 9, 10. He has also recorded the police statement as also the evidence in Court on the same line as has been recorded by P.W. 9, 10. 24. P.W. 12 Hare Ram Pandey is the witness of inquest of the deceased, which was performed on 09.08.2010 in the Nawadih orchard at 6:30 A.M. vide Exhibit-9. 25. P.W. 13 Arvind Kumar is A.S.I. of police, who is a witness of seizure of L.G. Reliance Mobile, Hero Honda Motorcycle and one Gumcha from the possession of Tarkeshwar Prasad @ Tarkeshwar Sah on 12.08.2010 vide seizure-list (Exhibit-7) drawn at 11:30 A.M. 26. P.W. 14 Dr. Jai Nand Kumar Singh is the doctor who conducted autopsy on the person of the deceased Amrit Raj Tomar @ Pintu. His report is dated 09.08.2010 (Exhibit-8). Perusal of Exhibit-8 indicates that death of Amrit Raj Tomar @ Pintu is homicidal as his neck was slit by a sharp cutting weapon and thereafter the body was defaced by sprinkling acid over the same. The injuries found on the person of the deceased are as follows :— “Injury No. I - Sharp cut incised wound on the right side of neck measuring 8”X2½”X2” deep with inverted margin major vessels cut. Injury No. II - Sharp cut incised wound on the left side of neck 4”X2”X1½” major vessels cut. Injury No. III - In continuation of Injury No. II sharp cutting wound left side of face and cutting the left ear 3”X1½”X ½” depth. Injury No. II - Sharp cut incised wound on the left side of neck 4”X2”X1½” major vessels cut. Injury No. III - In continuation of Injury No. II sharp cutting wound left side of face and cutting the left ear 3”X1½”X ½” depth. Injury No. IV - Sharp cut incised wound on the left arm up to left shoulder 2”X ½”X1” Injury No. V - At least 4 sharp cut penetrating wounds on the head each approximately 1½”X ½”X bone deep. Injury No. VI - At least 14 stab wound penetrating and sharp cutting with inverted margin, on the front of chest and abdomen ¼”X ½”X2-6” depth. Injury No. VII - Sharp cut incised wound on the left hand amputating the left index finger 4”X2½”X1”. Injury No. VIII - Sharp cut wound on the right hand 2”X1½”X1”. Internal Examination :— Major vessels of the neck of both sides cut through and through. Both lungs are contuse and cut by penetrating wound. Heart also cut and punctured by the penetrating wound. Plenty of blood in chest cavity. Stomach, intestine, liver all cut by penetrating wounds. Blood in the abdominal cavity reacal material out in the abdominal cavity. Post-mortem- Acid burnt on the face, neck, interior chest wall, abdomen, both hands, both thigh, legs to conceal recognition. No sign of inflammation, no sign of scalda formation. Cause of death – By sharp cutting penetrating wounds. Weapon leading to the fatal injuries at the neck, chest and abdomen leading to shock and death. Time elapsed- Since death- 6 to 36 hours. The witness has proved the post mortem report which has been marked as Ext. 8.” From the aforesaid injuries it is established that Amrit Raj Tomar @ Pintu suffered homicidal death. 27. P.W. 15 Dilip Kumar Keshari is the employee serving at the Motorcycle Parking Stand situate within the campus of Ara Railway Station. He has stated that in the evening of 08.08.2010 two persons came to the Motorcycle Parking Stand riding a motorcycle without any registration number. Out of the two, one was of average built and the other was bulky. P.W. 15 Dilip Kumar Keshari is the employee serving at the Motorcycle Parking Stand situate within the campus of Ara Railway Station. He has stated that in the evening of 08.08.2010 two persons came to the Motorcycle Parking Stand riding a motorcycle without any registration number. Out of the two, one was of average built and the other was bulky. The motorcycle was parked in the Parking Stand without paying the parking charges as the person who parked the motorcycle in the Parking Stand informed P.W. 15 that Passenger Train for going to Buxar has already arrived at the platform, whereafter P.W. 15 put slip on the motorcycle indicating that the parking charge of Rs. 5.00/- (five) is due from the motorcycle. P.W. 15 learnt in the morning that the person who parked the motorcycle in the Parking Stand has been killed. P.W. 15, however, did not identify Accused No. 1 as the one who came along with the deceased to park the motorcycle in the motorcycle stand. 28. P.W. 16 Anil Singh, the maternal uncle of the deceased and informant of the case, has reiterated the version recorded in his written report. 29. P.W. 17 Hare Krishna Mandal is the Officer-in-Charge of Shahpur Police Station and Investigating Officer of the case. 30. P.W. 18 Umesh Paswan is the A.S.I. attached to Shahpur Police Station and is the witness of seizure made from Tarkeshwar Prasad @ Talkeshwar Sah vide seizure-list (Exhibit-7) along with P.W. 13 Arvind Kumar. 31. P.W. 19 Uday Shankar Prasad is a police constable posted at the residential office of the Superintendent of Police, Bhojpur, Ara. According to the witness, in the residential office of the Superintendent of Police, Bhojpur, Ara, Dedicated Intelligence Unit (DIU) has been established and he is posted in the said Unit. The witness claims that he obtained print-out of Mobile No. (1). 9835007066, (2). 9386083081, (3). 9608696392, (4). 9304856550 and (5) 9835212471 from the Unit as per the request made by the Investigating Officer (P.W. 17) and having obtained the print-out the witness handed over the same to the Investigating Officer for further investigation of the case and identification of the accused persons which is also evident from the order dated 30.05.2012 passed by the Trial Court. 32. In the light of the evidence of the prosecution witnesses, counsel for Accused Nos. 1, 2, appellants in Cr. 32. In the light of the evidence of the prosecution witnesses, counsel for Accused Nos. 1, 2, appellants in Cr. Appeal (DB) No. 934 of 2013 submitted that there is hardly any evidence to connect both Accused Nos. 1, 2 with the incident of murder of Amrit Raj Tomar @ Pintu. In this connection, it is pointed out that Accused No. 1 Arjun Chourasia may be the one along with whom Amrit Raj Tomar @ Pintu (the deceased) went out of his own volition from his residence located in Mohalla Hariji Hata, Ara on his black pulsar motorcycle on 08.08.2010 at about 6.45 P.M. but there is no further evidence to indicate as to how Accused Nos. 1, 2 were instrumental in reaching Amrit Raj Tomar @ Pintu or his dead body to Nawadih orchard within Shahpur police station late in the same evening, as according to P.W. 7, he having come to learn about the presence of dead body of an unknown telephonically informed the Officer-in-Charge, Shahpur police station at 9.45 P.M. about the presence of the dead body in the orchard. Aforesaid information, according to the Officer-in-Charge, who is the Investigating Officer of the case (P.W. 17) was, however, received by him at 9.30 P.M. In this regard learned counsel further pointed out that merely because Amrit Raj Tomar @ Pintu was last seen along with Accused No. 1 Arjun Chourasia on 08.08.2010 at 6.45 P.M. and his dead body was spotted by the villagers of Nawadih and P.W. 7 in the same evening around 9.00 P.M. while P.W. 7 was returned after his patrolling duty was over from Rudra Nagar wooden bridge and information about the presence of the dead body of unknown was conveyed to the Officer-in-Charge, Shahpur police station between 9.30-9.45 P.M. about the presence of dead body of unknown, which was later identified as that of Amrit Raj Tomar @ Pintu, Accused No. 1 Arjun Chourasia cannot be said to be responsible for his disappearance and murder as there is absolutely no evidence to indicate what happened to Amrit Raj Tomar @ Pintu after 6.45 P.M. on 08.08.2010 until discovery of his dead body around 9.00 P.M. on the same day. Information about the dead body was given by P.W. 7 to the Officer-in-Charge (P.W. 17) of Shahpur police station by 9.30- 9.45 P.M. and merely because Accused No. 1 Arjun Chourasia was last seen with Amrit Raj Tomar @ Pintu at 6.45 P.M. he cannot be connected with the crime. Reliance in this connection is placed on the judgment of the Supreme Court in the case of Kanhaiyalal Vs. State of Rajasthan, (2014) 4 Supreme Court Cases 715, Paragraph 15. Perusal of the facts in the case of Kanhaiyalal (supra) would indicate that Kanhaiyalal, appellant before the Supreme Court and the deceased Kala had come to the house of P.W. 4 Harma on 31.08.2003 at about 9.00 P.M. and demanded liquor, which P.W. 4 Harma provided. Having taken liquor both the appellant and the deceased returned together. The dead body of Kala was recovered from the well next morning. P.W. 10 Shanti Bai, the wife of the deceased Kala came to P.W. 4 in the morning and asked about her husband. P.W. 4 informed P.W. 10 that her husband along with Kanhaiyalal had come to his house the previous night at about 9.00 P.M. The two went back after obtaining liquor bottle. P.W. 4 Harma, however, did not fully support the prosecution case in Court and was declared hostile. Trial Court, however, convicted Kanhaiyalal as the evidence of P.W. 4 was duly corroborated by the wife of the deceased P.W. 10. Conviction of Kanhaiyalal was maintained by the High Court as well. Supreme Court set aside the conviction holding in paragraph 5 that the theory of having last seen the deceased with the appellant is the singular piece of substantial evidence available against the appellant and proceeded to acquit Kanhaiyalal. In the present case, prosecution witnesses, namely, the parents of the deceased P.Ws. 9, 10, his neighbour P.W. 11 have categorically asserted throughout that Amrit Raj Tomar @ Pintu left his residence on 08.08.2010 at about 6.45 P.M. on his black Pulsar motorcycle along with Accused No. 1 Arjun Chourasia. In the present case, prosecution witnesses, namely, the parents of the deceased P.Ws. 9, 10, his neighbour P.W. 11 have categorically asserted throughout that Amrit Raj Tomar @ Pintu left his residence on 08.08.2010 at about 6.45 P.M. on his black Pulsar motorcycle along with Accused No. 1 Arjun Chourasia. The witnesses having not been shaken in their cross-examination, their testimony cannot be disbelieved only on the ground that they recorded their police statement on 22.08.2010 specially when Investigating Officer (P.W. 17) visited the residence of Amrit Raj Tomar @ Pintu on 09.08.2010 to record the statement of the inmates of the house and the neighbours but considering the shock, trauma the family members had undergone and were not in a position to record their police statement chose not to record their statement on 09.08.2010. In this connection evidence of the Investigating Officer in paragraph 8 of his examination-in-chief is relevant. 33. Learned counsel for Accused Nos. 1, 2 next relied on the judgment of the Supreme Court in the case of State of Goa Vs. Sanjay Thakran & Another, (2007) 2 Supreme Court Cases (Cri.) 162. From perusal of the facts of the said case, it is evident that the trial Court having not been satisfied with the chain of circumstances leading to death of the victims chose to acquit the two respondents, husband and wife as even if the evidence of P.W. 11 that he saw the deceased in the company of A-1 walking towards the beach and thereafter saw A-1 returning alone after 30-45 minutes is believed there being a time gap of about 2½ hours between A-1 and the deceased were last seen together and recovery of the dead body of the deceased on the beach. No evidence was led by the prosecution to prove the fact that there was no possibility of any other person approaching the deceased on the beach, which is a public place during the intervening period after A-1 was last seen with the deceased and the crime was detected. In this connection, reference was made to Paragraph 13 of the reported judgment where it was observed as follows :— “13. In this connection, reference was made to Paragraph 13 of the reported judgment where it was observed as follows :— “13. The prosecution case is based on the circumstantial evidence and it is a well-settled proposition of law that when the case rests upon circumstantial evidence, such evidence must satisfy the following tests : (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.” 34. In the present case, Accused No. 1 Arjun Chourasia besides being seen by the family members (P.Ws. 9, 10) and neighbour (P.W. 11) of the deceased going along with the deceased on his motorcycle from his residence on 08.08.2010 at 6:45 P.M. has also been identified by P.W. 8 Anand Kumar, the proprietor of Bombay Cloth House on 28.09.2010 when Accused No. 1 Arjun Chourasia was taken to Bombay Cloth House by Investigating Officer (P.W. 17) to verify his confession recorded in the night of 27.09.2010 pursuant to his 24 hours police remand, granted on 27.09.2010 that the four sets of Bol Bum clothes were purchased by Accused No. 1 Arjun Chourasia on 08.08.2010 from the said shop and the shop was opened at the request of accused Tarkeshwar Prasad @ Talkeshwar Sah. In this connection, P.W. 8 further stated that he submitted a written application dated 28.09.2010 to the Investigating Officer (P.W. 17) and then having seen the application dated 28.09.2010 identified his writing and signature over the application which was marked as Exhibit-5. From the evidence of P.W. 8 it further appears that he could know about the name of the person to whom he sold four sets of Bol Bum clothes on 08.08.2010 in the night on 28.09.2010 when that person along with P.W. 17 visited his shop on 28.09.2010. From the evidence of P.W. 8 it further appears that he could know about the name of the person to whom he sold four sets of Bol Bum clothes on 08.08.2010 in the night on 28.09.2010 when that person along with P.W. 17 visited his shop on 28.09.2010. Reference in this connection be made to the evidence of P.W. 8 in Paragraph 1 recorded on 16.04.2011 and the order-sheet of the Trial Court dated 16.04.2011 that Accused No. 1 Arjun Chourasia was present in dock on 16.04.2011. Reliance placed by the counsel for Accused No. 1 on the judgment of State of Goa (supra) further appears to be misplaced as appellant having not explained while recording statement under Section 313 Cr.P.C. the circumstances in which he parted company with the deceased after the two went together on 08.08.2010 at 6.45 P.M. on the motorcycle of the deceased and the dead body was recovered in the same night between 9.00-9.30 P.M. from Nawadih orchard, the conviction of Accused No. 1 Arjun Chourasia, in our opinion, does not appear to have been recorded erroneously on the basis of strong suspicion and is fit to be maintained. 35. Now, coming to the case of Accused No. 2 Vinod Chourasia. It appears the house of Accused No. 1 Arjun Chourasia was raided by the Investigating Officer (P.W. 17) on 08.09.2010 but Accused No. 1 Arjun Chourasia was not found in the house. P.W. 17 then came to his Pan Masala shop where a person was managing the shop. The person managing the shop, having seen the police party, tried to escape but was apprehended and identified as Accused No. 2 Vinod Chourasia. From the possession of Accused No. 2 Vinod Chourasia one slip containing Mobile No. of Accused No. 3 Nishu Kumar i.e. 9234299473, one undated cheque of Syndicate Bank drawn by Accused No. 1 Arjun Chourasia for Rs. 3,000/- (three thousand) without indicating the name of the drawee, plain copy of hand written memorandum of partition, Vakalatnama, surrender document of Accused No. 1 Arjun Chourasia, photo copy of the First Information Report of the present case was recovered and seized vide seizure-list dated 08.09.2010 at 4:00 P.M. (Exhibit-10/4), drawn at Bichali Road, Ara in presence of Kamal Kumar Pandey (not examined) and P.W. 1 Sunil Kumar Singh. Aforesaid recoveries from Accused No. 2 Vinod Chourasia do not indicate his complicity in the crime. Aforesaid recoveries from Accused No. 2 Vinod Chourasia do not indicate his complicity in the crime. There is nothing to establish that the mobile telephone no. 9434299473 appearing on the slip is subscribed by Accused No. 3 Nishu Kumar as neither Consumer Application Form nor any other document indicating subscription of Mobile No. 9434299473 by Accused No. 3 Nishu Kumar has been brought on record. The other material exhibits recovered from the possession of Accused No. 2 Vinod Chourasia on the date of his arrest i.e. 08.09.2010, undated cheque of Syndicate Bank drawn by Accused No. 1 Arjun Chourasia for Rs. 3,000/- (three thousand) without indicating the name of the drawee, plain copy of hand written memorandum of partition, Vakalatnama, surrender document of Accused No. 1 Arjun Chourasia, photo copy of the First Information Report of the present case also do not establish his complicity in the murder of Amrit Raj Tomar @ Pintu. Accused No. 2 Vinod Chourasia having not absconded after the date of occurrence i.e. 08.08.2010 and on the date of arrest was found managing the Pan Masala shop of his brother Accused No. 1 Arjun Chourasia and there being neither circumstantial evidence nor ocular evidence available on the record connecting him with the crime, his conviction does not inspire confidence and he deserves acquittal. 36. Accused No. 3 Nishu Kumar surrendered on 24.09.2010. Investigating Officer (P.W. 17) obtained his police remand on 27.09.2010 for 24 hours. During police remand Accused No. 3 Nishu Kumar recorded his disclosure statement in the night of 27.09.2010. In order to verify the disclosure statement Accused No. 3 Nishu Kumar was taken by P.W. 17 to Nawadih orchard and other places on 28.09.2010. From Nawadih orchard Accused No. 3 Nishu Kumar was taken to Banahi Railway Station and then to the clinic of P.W. 6 Hare Ram Yadav. In order to verify the disclosure statement Accused No. 3 Nishu Kumar was taken by P.W. 17 to Nawadih orchard and other places on 28.09.2010. From Nawadih orchard Accused No. 3 Nishu Kumar was taken to Banahi Railway Station and then to the clinic of P.W. 6 Hare Ram Yadav. P.W. 6 having seen the stitch in the palm of Accused No. 3 Nishu Kumar confirmed that he had stitched the wound of Accused No. 3 Nishu Kumar on 08.08.2010 and submitted an application to the Investigating Officer (P.W. 17) on 12.08.2010 (Exhibit-4) stating that on 08.08.2010 at about 9:30 P.M. accused Tarkeshwar Prasad @ Talkeshwar Sah brought one injured to his clinic for treatment who suffered cut injury on his right hand in which the witness provided three stitches, bandaged the wound and also injected the injured and having provided medicine discharged the patient. P.W. 6 further asserted that as and when the hand of the said person is shown to him, he will recognize the stitch given by him. On 28.09.2010 P.W. 6 confirmed before the Investigating Officer (P.W. 17) that Accused No. 3 Nishu Kumar is the same person who was brought to his clinic on 08.08.2010 at 9:30 P.M. by Tarkeshwar Prasad @ Talkeshwar Sah for providing stitch. In Court P.W. 6 asserted on 08.04.2011 that amongst the three accused persons present in the dock one of the accused is the same accused whom he treated on 08.08.2010 vide Paragraph 1 of his evidence. P.W. 6 in his evidence, however, did not clarify that who amongst the three accused persons present in the dock is the person whom he treated in the night of 08.08.2010 by providing three stitches, bandage, injection and medicine. From the order-sheet of the Court dated 08.04.2011 it, however, appears that accused persons in custody were produced from jail custody. Rest accused Vinod @ Soni (Accused No. 2) was represented under Section 317 Cr.P.C. which was allowed only for the day. From the order-sheet of the Court dated 08.04.2011 it, however, appears that accused persons in custody were produced from jail custody. Rest accused Vinod @ Soni (Accused No. 2) was represented under Section 317 Cr.P.C. which was allowed only for the day. Besides the aforesaid evidence Investigating Officer (P.W. 17) in Paragraph 31 of his evidence has stated that Accused No. 3 Nishu Kumar and accused Tarkeshwar Prasad @ Talkeshwar Sah telephonically contacted each other in the evening/night of the occurrence eight times, which is evident from the print-out of Mobile No. 9334248490 of Tarkeshwar Prasad @ Talkeshwar Sah as from the print-out of the said mobile number it is quite evident that in the evening/night of the occurrence calls were made/received from Mobile No. 9234299473 of Accused No. 3 Nishu Kumar. From the evidence of P.W. 19 Uday Shankar Prasad Paragraph 4 read with order-sheet of the Trial Court dated 30.05.2012 it, however, does not appear that P.W. 19 obtained print-out of Mobile No. 9234299473 of Accused No. 3 Nishu Kumar and accused Tarkeshwar Prasad @ Talkeshwar Sah bearing Mobile No. 9334248490 and there being no evidence to establish that the aforesaid two mobile numbers were subscribed by Accused No. 3 Nishu Kumar and Tarkeshwar Prasad @ Talkeshwar Prasad, the assertion of Investigating Officer (P.W. 17) that Accused No. 3 Nishu Kumar and Tarkeshwar Prasad @ Talkeshwar Prasad contacted each-other eight times in the evening/night of occurrence is nothing but conjecture on the part of P.W. 17 and cannot be relied upon to conclude that the two contacted each other eight times during the evening/night of occurrence. He deserves acquittal by granting him benefit of doubt. 37. Before proceeding to consider the case of Accused No. 4 Ashok Prasad @ Naga, it is necessary to notice the submission of the learned counsel for Accused No. 4. He referred to the evidence of P.W. 11 Dhanjee Singh @ Anant Singh paragraphs 1, 4 and the Investigating Officer (P.W. 17) paragraphs 8, 11, 12, 16, 75 and submitted that Accused Nos. 1, 4 were seen moving in front of the house of the deceased on 06.08.2010 and that Accused No. 4 was a regular visitor to the house of the deceased even prior thereto. Accused No. 4 was arrested on 12.08.2010 after Dy. 1, 4 were seen moving in front of the house of the deceased on 06.08.2010 and that Accused No. 4 was a regular visitor to the house of the deceased even prior thereto. Accused No. 4 was arrested on 12.08.2010 after Dy. S.P. learnt that he was interrogated by the family members of the deceased and cut injury was noticed on his palm by them. Investigating Officer (P.W. 17) thereafter apprehended him. His complicity in the crime in question was further established with reference to the print out of the mobile recovered from his possession vide seizure-list (Exhibit-10/1) in presence of P.W. 1 Sunil Singh. Learned counsel also referred to the evidence of P.W. 13 Arvind Kumar, Sub-Inspector Shahpur Police Station and submitted that Accused No. 4 led to the arrest of Tarkeshwar Prasad @ Talkeshwar Sah and recovery of blood stained clothes from railway track between Banahi railway station and Sikaria halt. Learned counsel having referred to the incriminating evidence available against Accused No. 4 submitted that the incriminating material available against Accused No. 4 if juxtaposed with the evidence of Investigating Officer in paragraph 75 that the name of Accused No. 4 had not surfaced even in the further, police statement of the informant, P.W. 3 Mirtunjay Rai the scribe of the written report (Exhibit-3) also recorded on the same day on which written report/ First Information Report was registered, the Court will be satisfied that there was hardly any evidence against Accused No. 4 on record until his arrest. Learned counsel for Accused No. 4 further pointed out that there is no evidence on record as to who amongst the family members of the deceased interrogated Accused No. 4 and saw that there is cut injury in his palm. In this connection learned counsel referred to the judgment of the Privy Council in the case of Pakala Narayana Swami Vs. Emperor, AIR 1939 Privy Council 47 and submitted that the deposition of P.W. 11 Dhanji Singh neighbour of the deceased that he saw Accused Nos. 1, 4 moving together in front of the house of the deceased on 06.08.2010 is not admissible for the reason that the presence of the two is not directly connected with the transaction which resulted in the death of the deceased. He next referred to the judgment of the Supreme Court in the case of Dilavar Hussain Vs. 1, 4 moving together in front of the house of the deceased on 06.08.2010 is not admissible for the reason that the presence of the two is not directly connected with the transaction which resulted in the death of the deceased. He next referred to the judgment of the Supreme Court in the case of Dilavar Hussain Vs. State of Gujarat and another, 1991 Cri.L.J. 15 (Supreme Court) Paragraphs 3, 4, 14. Perusal of the said judgment indicates that the case arose out of a communal frenzy between Hindus and Muslims which went on continuously for long spell resulting in enormous loss of life and property of both the communities. Learned counsel with reference to paragraphs 3, 4 of the said judgment submitted that each naught of the chain has to be proved beyond shadow of doubt to bring home the guilt. Any crack or loosening in the link weakens the prosecution case. The evidence of the prosecution witnesses has to be measured with the same yardstick. Law does not make any distinction either in leading of evidence or in its assessment. Learned counsel next referred to the judgment of the Supreme Court in the case of Rukia Begum and others Vs. State of Karnataka, (2011) 4 Supreme Court Cases 779 Paragraphs 16, 17 and submitted that for bringing home the guilt on the basis of circumstantial evidence the prosecution has to establish that the circumstances proved lead to one and the only conclusion towards the guilt of the accused and incapable of explanation of any other hypothesis than the guilt of the accused. Learned counsel also referred to the judgment of the Supreme Court in the case of Kanhaiyalal (supra). Learned counsel for Accused No. 4 finally with reference to the 313 Cr.P.C. statement of Accused No. 4 submitted that the circumstances adverse to him were not put to the accused. 38. In the light of the aforesaid submission case of Accused No. 4 Ashok Prasad @ Naga is being examined. He was arrested on 12.08.2010 at 7:30 A.M. From his possession one Nokia Mobile set bearing SIM No. 9608696392 was recovered vide seizure-list dated 12.08.2010 at 7:30 A.M. drawn in Dharhara locality within Ara Town Police Station, copy whereof was given to Accused No. 4 Ashok Prasad @ Naga. He was arrested on 12.08.2010 at 7:30 A.M. From his possession one Nokia Mobile set bearing SIM No. 9608696392 was recovered vide seizure-list dated 12.08.2010 at 7:30 A.M. drawn in Dharhara locality within Ara Town Police Station, copy whereof was given to Accused No. 4 Ashok Prasad @ Naga. In token of the fact that Accused No. 4 Ashok Prasad @ Naga has received the copy of the seizure-list he also put his signature over the seizure-list. Aforesaid arrest of Accused No. 4 Ashok Prasad @ Naga was made by the Investigating Officer (P.W. 17) as he was informed by Dy. S.P. Ara Town that family members of the deceased called Accused No. 4 Ashok Prasad @ Naga, interrogated him and found cut injury on his both palms. Aforesaid fact has been disclosed by none other than the Investigating Officer of the case (P.W. 17) in Paragraph 8 of his deposition. Soon after his arrest Accused No. 4 Ashok Prasad @ Naga made his disclosure statement, which was noted in a separate sheet as also in paragraph 70 of the case diary, though on record but has not been proved by the Investigating Officer. Accused Tarkeshwar Prasad @ Talkeshwar Sah was also arrested on the same day while the Investigating Officer (P.W. 17) along with Accused No. 4 Ashok Prasad @ Naga and police force was proceeding in a police jeep to verify the disclosure statement made by Accused No. 4 Ashok Prasad @ Naga. Having arrested Tarkeshwar Prasad @ Talkeshwar Sah near Rudra Nagar wooden bridge, both Accused No. 4 Ashok Prasad @ Naga and accused Tarkeshwar Prasad @ Talkeshwar Sah were brought to the Police Station where accused Tarkeshwar Prasad @ Talkeshwar Sah was detained in the Hazat of the Police Station. Having arrested Tarkeshwar Prasad @ Talkeshwar Sah near Rudra Nagar wooden bridge, both Accused No. 4 Ashok Prasad @ Naga and accused Tarkeshwar Prasad @ Talkeshwar Sah were brought to the Police Station where accused Tarkeshwar Prasad @ Talkeshwar Sah was detained in the Hazat of the Police Station. Having detained accused Tarkeshwar Prasad @ Talkeshwar Sah in the Hazat of the Police Station P.W. 17 along with Accused No. 4 Ashok Prasad @ Naga and police force proceeded to verify the disclosure statement made by Accused No. 4 Ashok Prasad @ Naga and came to Banahi Railway Station from where Accused No. 4 Ashok Prasad @ Naga took P.W. 17 and other members of Police party to the shop of Tarkeshwar Prasad @ Talkeshwar Sah situate 300 yards west of Banahi Railway Station, pointed towards a hand pump and stated that after the occurrence he and Accused No. 3 Nishu Kumar came to the same hand pump and took bath. Those present near the shop confirmed that the shop belongs to Tarkeshwar Prasad @ Talkeshwar Sah. Near the hand pump a plastic wrapper of Lifebuoy soap was also seen. From the shop, hand pump Accused No. 4 Ashok Prasad @ Naga took P.W. 17 and the police party to the medicine shop of P.W. 6 Hare Ram Yadav, a Registered Medical Practitioner, also located at Banahi near Railway Station at a distance of 50 yards from the shop of Tarkeshwar Prasad @ Talkeshwar Sah. Accused No. 4 Ashok Prasad @ Naga further disclosed that in the shop of P.W. 6 Accused No. 3 Nishu Kumar was given three stitches in his palm in the night of occurrence i.e. 08.08.2010. In the light of the disclosure made by Accused No. 4 Ashok Prasad @ Naga P.W.17 recorded the police statement of P.W. 6 Hare Ram Yadav, who also submitted written application dated 12.08.2010 (Exhibit-4) indicating the treatment given by him to the injured who was brought to his clinic by Tarkeshwar Prasad @ Talkeshwar Sah with cut injury in his right hand. P.W. 6 also stated in Exhibit-4 that he had given three stitches in the right hand of the injured who was brought to his clinic by Tarkeshwar Prasad @ Talkeshwar Sah. He also stated in Exhibit-4 that besides giving three stitches, wound was bandaged, injured given injection, medicine. P.W. 6 also stated in Exhibit-4 that he had given three stitches in the right hand of the injured who was brought to his clinic by Tarkeshwar Prasad @ Talkeshwar Sah. He also stated in Exhibit-4 that besides giving three stitches, wound was bandaged, injured given injection, medicine. Having seen Exhibit-4, P.W. 6 proved the contents and in the light of his deposition, the application was marked as Exhibit-4. From the medicine shop of P.W. 6 Accused No. 4 Ashok Prasad @ Naga took P.W. 17 and the police party to Banahi Railway Station. From Banahi Railway Station Accused No. 4 Ashok Prasad @ Naga took P.W. 17 and the police party on foot along the railway track to Sikaria Railway Halt. Blood stained clothes of Accused No. 4 Ashok Prasad @ Naga and Accused No. 3 Nishu Kumar were found thrown along the railway track within a distance of 200-250 yards from Banahi Railway Station. Accused No. 4 Ashok Prasad @ Naga having led to the recovery of his clothes along with clothes of Accused No. 3 Nishu Kumar identified the clothes. Seizure-list of the clothes recovered at the instance of Accused No. 4 Ashok Prasad @ Naga was prepared by P.W. 17 on 12.08.2010 at 15:00 hours in between Banahi Railway Station and Sikaria Halt over which P.W. 13 A.S.I. Arbind Kumar and P.W. 18 A.S.I. Umesh Paswan put their signature. The seizure-list has been marked as Exhibit-10/3, copy of the seizure-list was also handed over to Accused No. 4 Ashok Prasad @ Naga who not only put his signature over the same but also wrote that the clothes referred to in the seizure-list have been recovered at his instance from the side of railway track. Aforesaid endorsement made by Accused No. 4 Ashok Prasad @ Naga on the seizure-list has been exhibited as Exhibit-12 in the light of the evidence of P.W. 17 that the endorsement (Exhibit-12) was made by Accused No. 4 Ashok Prasad @ Naga in the presence of P.W. 17. Investigating Officer (P.W. 17) having apprehended Accused No. 4 Ashok Prasad @ Naga on 12.08.2010 also found cut injury on his both the palms, referred him to a hospital for treatment and obtained his injury-report. The injury-report of Accused No. 4 Ashok Prasad @ Naga is neither on record nor has been made exhibit during trial. Investigating Officer (P.W. 17) having apprehended Accused No. 4 Ashok Prasad @ Naga on 12.08.2010 also found cut injury on his both the palms, referred him to a hospital for treatment and obtained his injury-report. The injury-report of Accused No. 4 Ashok Prasad @ Naga is neither on record nor has been made exhibit during trial. Perusal of forwarding memo dated 13.08.2010 whereunder both Accused No. 4 Ashok Prasad @ Naga and Tarkeshwar Prasad @ Talkeshwar Sah were forwarded, however, indicates that Accused No. 4 Ashok Prasad @ Naga had cut injury in both of his palms but perusal of order dated 13.08.2010 of the learned Chief Judicial Magistrate, Ara does not indicate that at the time of production of Accused No. 4 Ashok Prasad @ Naga in Court any injury was noticed by the Chief Judicial Magistrate on both the palms of Accused No. 4 Ashok Prasad @ Naga. After forwarding Accused No. 4 Ashok Prasad @ Naga and Tarkeshwar Prasad @ Talkeshwar Sah for judicial remand on 13.08.2010 Investigating Officer (P.W. 17) filed application dated 17.09.2010 before the Chief Judicial Magistrate, Ara seeking permission to send the incriminating articles seized from the place of occurrence and the clothes from the side of railway track to the Forensic Science Laboratory, Patna. Permission to send the clothes and the incriminating articles to the Forensic Science Laboratory, Patna was granted by the Chief Judicial Magistrate, Ara under order dated 18.09.2010 which is evident from Forensic Science Laboratory Report No. 1467/10 dated 08.12.2010 (Exhibit-13/1) whereunder Forensic Science Laboratory, Patna reported that human blood was found on all the seized Exhibits including the clothes (Exhibits Vc and Vd), the vest and Kachhia, both under garments. The report also stated that the serological examination of the blood stains found on the seized incriminating Exhibits and the clothes shall follow. The serological report (Exhibit-13) bearing the same number as that of Exhibit-13/1 (F.S.L. Report No. 1467/10 dated 08.12.2010) but undated though signed on 08.03.2011 was received indicating that the blood group of the stains found on the incriminating articles and the clothes was the same i.e. ‘A’, ‘B’ except on Exhibit-IV the soil taken from the place of occurrence (Nawadih orchard). The recovery of the blood stained clothes on 12.08.2010 from the railway track between Banahi Railway Station and Sikaria railway halt at the instance of Accused No. 4 Ashok Prasad @ Naga is proved in the light of the evidence of the Investigating Officer (P.W. 17) as P.W. 17 has categorically stated in his evidence that Accused No. 4 Ashok Prasad @ Naga did endorse Exhibit-12 in his presence on the seizure-list (Exhibit-10/3) that his blood stained clothes along with blood stained clothes of Accused No. 3 Nishu Kumar were recovered from the railway track at his instance vide endorsement (Exhibit-12). Copy of the seizure-list was duly given to Accused No. 4 and such endorsement has also been proved by seizure-list witnesses P.Ws. 13, 18. The blood stained clothes and the incriminating articles recovered from the railway track, place of occurrence on 12.08.2010, 09.08.2010 respectively were dispatched for matching of the blood group of the stains found on the incriminating articles, clothes under order of the Chief Judicial Magistrate, Ara dated 18.09.2010. The question, however, still remains whether the incriminating articles, clothes were properly preserved in the Malkhana of the Police Station during the period between 09,12.08.2010-18.09.2010 the date on which incriminating articles, clothes were kept in the Malkhana of police station and sent to the Forensic Science Laboratory, Patna under orders from Chief Judicial Magistrate, Ara for forensic examination. Blood group of Accused Nos. 3, 4 having not been ascertained there is nothing on record to conclude that blood stain found on the clothes recovered from the railway track is that of Accused Nos. 3, 4. Accused No. 4 Ashok Prasad @ Naga was arrested on 12.08.2010 after P.W. 17 received a tip off from the Dy. S.P., Ara Town that family members of the deceased after the occurrence called Accused No. 4 Ashok Prasad @ Naga, interrogated him and found on his both the palms cut injury. Injury in the palms of Accused No. 4 was also found after his arrest on 12.08.2010 by the Investigating Officer (P.W. 17) who referred Accused No. 4 Ashok Prasad @ Naga for medical treatment as also obtained his injury-report and then forwarded him for judicial remand categorically indicating in the forwarding memo that Accused No. 4 Ashok Prasad @ Naga has suffered cut injury in both the palms. According to P.W. 6 Hare Ram Yadav, the injured having cut injury in his hand was treated by him in the night of 08.08.2010 after 9:00 P.M., was produced before him by the Investigating Officer (P.W. 17), on 28.09.2010, and not on 12.08.2010. In the light of the aforesaid evidence of P.W. 6 and the Investigating Officer (P.W. 17) there is no difficulty in coming to this conclusion that Accused No. 4 Ashok Prasad @ Naga was treated for his cut injuries on 12.08.2010, his injury-report of that date is, however, not on record. From the evidence of the parents, neighbour of the deceased i.e. P.Ws. 9, 10, 11 it does not appear that after the occurrence they had called Accused No. 4 Ashok Prasad @ Naga, interrogated him and found cut injury on his both the palms and informed the Dy. S.P. of such fact who instructed Investigating Officer (P.W. 17) to arrest Accused No. 4 Ashok Prasad @ Naga on 12.08.2010 rather from the evidence of Investigating Officer (P.W. 17) it appears that the parents of the deceased P.Ws. 9, 10 and the wife of the deceased (not examined) were under deep shock, trauma and recorded their police statement on 22.08.2010. In the circumstances, from the materials on record it does not appear that there is any corroborative evidence on record to support the evidence of the Investigating Officer (P.W. 17) that Accused No. 4 Ashok Prasad @ Naga had cut injury on his palms on the date of his arrest and that he was arrested pursuant to his interrogation by the family members, who having noticed injury in his palm alerted Dy. S.P. and on the instruction of Dy. S.P. Accused No. 4 was arrested. In the light of the evidence of the Investigating Officer (P.W. 17) it is, however, proved that blood stained clothes were recovered on 12.08.2010 at the instance of Accused No. 4 from the railway track between Banahi railway station and Sikaria halt and was sent to Forensic Science Laboratory, Patna on 19.09.2010 for ascertaining the blood group of the stains found on the clothes and the incriminating articles seized from the place of occurrence on 09.08.2010. From the report of the Forensic Science Laboratory, Patna dated 08.12.2010 (Exhibit-13/1) and the serological report signed on 08.03.2011 (Exhibit-13) submitted in continuation of Exhibit-13/1, it is established that the blood group of the stains found on the incriminating articles seized from the place of occurrence and the clothes recovered from the railway track at the instance of Accused No. 4 is one and the same and connect Accused No. 4 with the murder of the deceased. In view of the discussion above, the conviction of Accused No. 4 Ashok Prasad @ Naga does not warrant any interference. 39. Now coming to the case of accused Tarkeshwar Prasad @ Talkeshwar Sah. It appears he was also arrested on 12.08.2010 around 11:30 A.M. at the instance of Accused No. 4 Ashok Prasad @ Naga. From his custody one L.G. Reliance Mobile set bearing SIM No. 9334248490, Hero Honda Passion motorcycle bearing Registration No. BR 3A-6583, one towel (gamcha) of wheatish colour was recovered vide seizure-list dated 12.08.2010 at 11:30 A.M. (Exhibit-10/2) drawn at Shahpur Banahi road near Rudra Nagar wooden bridge, copy whereof was also handed over to him. In token of having received the seizure-list Tarkeshwar Prasad @ Talkeshwar Sah put his signature over the same. He also made disclosure statement which was noted on a separate sheet as also in Paragraph 86 of the case diary but was not proved by the Investigating Officer (P.W. 17) and marked Exhibit during trial. In order to verify the disclosure statement Tarkeshwar Prasad @ Talkeshwar Sah was also taken to the place of occurrence (Nawadih orchard) and Banahi Railway Station where he opened his shop. Inside the shop one bucket and lota (small round pot) was found which as per disclosure made by Tarkeshwar Prasad @ Talkeshwar Sah was used after the occurrence by Accused No. 3 Nishu Kumar and Accused No. 4 Ashok Prasad @ Naga for taking bath on 08.08.2010 at the hand pump. The hand pump was found by the Investigating Officer in working order. Tarkeshwar Prasad @ Talkeshwar Sah also took P.W. 17 and the police party to the medicine shop of P.W. 6 Hare Ram Yadav situate west of his shop and informed P.W. 17 that it is in the medicine shop of P.W. 6 Accused No. 3 Nishu Kumar was given three stitches after he put on Bol Bum attire. Tarkeshwar Prasad @ Talkeshwar Sah also took P.W. 17 and the police party to the medicine shop of P.W. 6 Hare Ram Yadav situate west of his shop and informed P.W. 17 that it is in the medicine shop of P.W. 6 Accused No. 3 Nishu Kumar was given three stitches after he put on Bol Bum attire. In the light of the disclosure made by accused Tarkeshwar Prasad @ Talkeshwar Sah statement of P.W. 6 Hare Ram Yadav was recorded who also submitted written application dated 12.08.2010 (Exhibit-4) addressed to the Officer-in-Charge (P.W. 17) indicating the treatment given by him to the injured who was brought to his clinic in the night of occurrence i.e. 08.08.2010 by Tarkeshwar Prasad @ Talkeshwar Sah and suffered cut injury in his right hand. P.W. 6 also stated in Exhibit-4 that he had given three stitches in the right hand of the injured who was brought to his clinic by Tarkeshwar Prasad @ Talkeshwar Sah. He also stated in his application that besides giving three stitches, wound was also bandaged, injured was also given injection, medicine. Having seen the application, P.W. 6 proved the same and in the light of his deposition, the application was marked as Exhibit-4. In Court P.W.6 has, however, deposed that in the night of occurrence i.e. 08.08.2010 Tarkeshwar Prasad @ Talkeshwar Sah had come along with one person who was having cut injury in the right palm. Tarkeshwar Prasad @ Talkeshwar Sah also took P.W. 17 and the police party to Bombay Cloth House situate south of Banahi railway platform and stated that from the same shop four sets of Bol Bum dress was purchased. In the light of the disclosure made by Tarkeshwar Prasad @ Talkeshwar Sah, proprietor of Bombay Cloth House P.W. 8 Anand Kumar also recorded his statement that on 08.08.2010 at about 9:00 P.M. he having closed his shop was watching Television in the adjoining shop when Tarkeshwar Prasad @ Talkeshwar Sah along with one unknown came and asked him to provide four sets of Bol Bum dress as four persons were to proceed for Bol Bum journey in a Bolero vehicle. P.W. 8 in the light of the instruction of Tarkeshwar Prasad @ Talkeshwar Sah after opening his shop handed over four sets of Bol Bum dress to Tarkeshwar Prasad @ Talkeshwar Sah and received Rs. 800/- from him. P.W. 8 in the light of the instruction of Tarkeshwar Prasad @ Talkeshwar Sah after opening his shop handed over four sets of Bol Bum dress to Tarkeshwar Prasad @ Talkeshwar Sah and received Rs. 800/- from him. Later P.W. 8 came to know about the name of the companion of Tarkeshwar Prasad @ Talkeshwar Sah, who visited the shop in the night of 08.08.2010 on 28.09.2010 when the companion along with the Investigating Officer (P.W. 17) came to his shop and P.W. 17 disclosed his name as Accused No. 1 Arjun Chourasia. From the evidence of P.Ws. 6, 8 it, however, does not appear that Tarkeshwar Prasad @ Talkeshwar Sah played any part in executing the murder of the deceased. As per the evidence of P.W. 6 Tarkeshwar Prasad @ Talkeshwar Sah brought one injured to his medicine shop in the night of 08.08.2010 with cut injury in his palm and asked P.W. 6 to provide stitch to the injured who suffered such injury in a motor accident. According to P.W. 8 Tarkeshwar Prasad @ Talkeshwar Sah came to him along with one another person on 08.08.2010 at about 9.00 P.M. after he has closed his shop and was watching television in the adjoining shop and asked him to provide four sets of Bol Bum dress to his companion as four persons were to proceed for Bol Bum journey in a bolero vehicle. From the entire prosecution evidence including the evidence of P.Ws. 6, 8 it does not appear that Tarkeshwar Prasad @ Talkeshwar Sah has played any part in the murder of the deceased. The assertion of P.Ws. 6, 8 that Tarkeshwar Prasad @ Talkeshwar Sah accompanied Accused Nos. 1, 4 in the night of 08.08.2010 does not connect Tarkeshwar Prasad @ Talkeshwar Sah with the murder of the deceased. In the circumstances, he also deserves acquittal, grant of benefit of doubt. 40. Having maintained the conviction of Accused No. 1 Arjun Chourasia, Accused No. 4 Ashok Prasad @ Naga now we proceed to consider in the facts and circumstances of the case the sentence which is required to be imposed on them. In the circumstances, he also deserves acquittal, grant of benefit of doubt. 40. Having maintained the conviction of Accused No. 1 Arjun Chourasia, Accused No. 4 Ashok Prasad @ Naga now we proceed to consider in the facts and circumstances of the case the sentence which is required to be imposed on them. It appears from the facts and circumstances of the case that the case in hand is a murder case in which deceased having trusted Accused No. 1 went along with him on his motorcycle and within three hours of his departure his dead body was found by the Chaukidar in Nawadih Orchard. The motorcycle was, however, recovered the following morning from the parking stand of Ara railway station. Accused No. 1 has been convicted as he was not only seen last with the deceased in the evening of the occurrence but was also identified by P.W. 8 as the one who purchased four sets of Bol Bum dress from P.W. 8 in the evening of occurrence which the perpetrators of the crime put on after they threw their blood stained clothes on the railway track between Banahi railway station and Sikaria railway halt. The conviction of Accused No. 4 Ashok Prasad @ Naga has been maintained as there has been recovery of the blood stained clothes at his instance on 12.08.2010 from the railway track between Banahi railway station-Sikaria halt and the blood group of the stains found on the clothes matched with the blood stains found on the incriminating articles recovered from the place of occurrence. In the circumstances, there does not appear any special reason in the facts of the present case to distinguish the case in hand from the other cases of murder and to categorize the present case as the one falling in the category of rarest of rare case for maintaining the death sentence of the two convicts. Accordingly, their sentence is modified and they are directed to suffer rigorous imprisonment for life. The other sentences imposed on them shall, however, run concurrently. 41. In view of the above, Death Reference Nos. 7, 8 both of 2013 are answered in negative. Appeal(s) filed by Accused Nos. 2 Vinod Chourasia, Accused No. 3 Nishu Kumar and Tarkeshwar Prasad @ Talkeshwar Sah are allowed. They are directed to be released from jail custody forthwith, if not wanted in any other case. 41. In view of the above, Death Reference Nos. 7, 8 both of 2013 are answered in negative. Appeal(s) filed by Accused Nos. 2 Vinod Chourasia, Accused No. 3 Nishu Kumar and Tarkeshwar Prasad @ Talkeshwar Sah are allowed. They are directed to be released from jail custody forthwith, if not wanted in any other case. Appeal(s) filed by Accused No. 1 Arjun Chourasia and Accused No. 4 Ashok Prasad @ Naga are dismissed. PRABHAT KUMAR JHA, J.:–I agree. ?