JUDGMENT : (Per: HONOURABLE MR. JUSTICE JITENDRA MOHAN SHARMA) The appellants above named have filed this appeal against the judgment of conviction and order of sentence dated 27th November, 1990 passed by the 3rd Additional Sessions Judge, Bhagalpur in Sessions Case no. 157 of 1988 whereby both appellants have been found guilty for committing the offence punishable under Sections 302/34, 436, 148 of the Indian Penal Code and Section 27 of the Arms Act and have been sentenced to undergo rigorous imprisonment for life, rigorous imprisonment for 10 years, imprisonment for 3 years and rigorous imprisonment for 7 years respectively. The sentences were ordered to run concurrently. 2. The informant (PW 5) has filed Cr. Revision No. 112 of 1991 against the order of acquittal of opposite party nos. 2 to 9 who were tried along with the above named two appellants 3. The prosecution case was initiated at the behest of Kaushalya Devi (PW 5) the wife of the deceased, on the basis of her fard-beyan recorded by the S.I. Upendra Kumar (PW 11) on 26.1.1987 at 10.00AM at her house situated at village Sakrama, P.S.- Sanahaula, District-Bhagalpur. The prosecution case, briefly stated, is that in the night of 25.1.1987 at about 8.30-9.00PM, she, her husband and children after taking dinner were in the northern room of first floor of the house where her sister-in-law Manju Devi was also present. Hearing some sound from the south western side, her husband went on the roof and noticing 10-12 persons he came back in the room in which the informant and others were from before, bolted the door from inside and also stacked sacks containing paddy adjacent to the door. The miscreants tried their best to break open the door by removing the bricks by khanti and also opened fire. The informant and others kept themselves hidden and when the door was not opened, the miscreants set the door on fire after sprinkling kerosene oil and in the flame of fire, she and others present in the room identified Garib Sah, Pratap Sah, Shekhar Sah, Anil Sah, Nand Kishore Sah, Genu Paswan, Banka Yadav, Tunka Thakur @ Arjun Thakur, Sidheshwari Sah and Ganu Sah along with 8-9 unknown persons with pistols. She and her husband threw brick bats but the miscreants succeeded in entering into the room by breaking open the door and Pratap Sah fired on her husband at his chest then, he fell down and thereafter, Chandrashekhar Sah also fired at him on his chest. They also hit by butt of the pistol on the head of her sister-in-law causing injury to her, Nand Kishore Sah also fired which also hit on the head of the son of the informant Chaturi Sah. Cahndrashekhar Sah also opened fire which hit Rohit Sah who was on the road at that time and was also injured with Pellet. The miscreants scattered the articles kept in the house. The motive behind the occurrence is said that Shekhar Sah son of Garib Sah earlier had molested the sister-in-law of the informant 4 years back and the verdict of the panchayat was not obeyed by the accused persons. There was dacoity in the house of Garib Sah and due to enmity he falsely implicated the husband of the informant and in that dacoity Shekhar Sah was injured due to firing. They were suspecting that the husband of the informant was behind the same and to take revenge they were in search and due to that enmity they killed the husband of the informant and also injured others. 4. The defence of the appellants was of false implication, innocence and further that due to enmity the appellants and others were implicated though on that day there was dacoity with murder in the house of the informant by some unknown dacoits. 5. The two appellants and Nand Kishore Sah, Anil Sah, Garib Sah, Arjun Thakur @ Tunka Thakur, Ganu Sah, Sidheshwari Sah, Banka Yadav and Gainu Paswan were charged in the sessions case, they did not plead guilty and claimed to be tried. The appellants were charged under Sections 302/34 of the Indian Penal Code and further the appellant no. 1 was charged under Section 323 of the Indian Penal Code for causing hurt to Munju Devi and Rohit Sah. They were also charged under Sections 302/149, 307/149, 436/149 and 148 of the Indian Penal Code. After conclusion of the trial the two appellants were found guilty and accordingly, they have been convicted and sentenced whereas rests were acquitted. 6. 1 was charged under Section 323 of the Indian Penal Code for causing hurt to Munju Devi and Rohit Sah. They were also charged under Sections 302/149, 307/149, 436/149 and 148 of the Indian Penal Code. After conclusion of the trial the two appellants were found guilty and accordingly, they have been convicted and sentenced whereas rests were acquitted. 6. During trial on behalf of the prosecution altogether 12 witnesses have been examined whereas on behalf of the defence also 4 witnesses have been examined. 7. Out of 12 prosecution witnesses, PWs, 1, 4 and 5 are the eye witnesses whereas PW 2, being the neighbour has corroborated their evidence. PW 3 is a witness of inquest report. PWs 6 and 8 are witnesses before whom fard-beyan was recorded. PWs 7 and 9 are tendered. PW 10 has been declared hostile. PW 11 is the Investigating Officer and PW 12 is the doctor who held post mortem. 8. On behalf of the appellants it has been argued that the judgment of conviction and order of sentence is not sustainable. The trial court committed error in believing the version of PWs 1, 4 and 5. Fard-beyan was recorded after much delay. The village chowkidar has not supported the prosecution version. PW 5 has stated that the I. O. arrived at her house at 7.00 AM on 26.1.1987 but the fard-beyan was recorded at 10.00 AM. During evidence, PW 5 has suppressed the material facts as disclosed in her fard-beyan. The prosecution version and the evidence adduced on behalf of the prosecution appear to be doubtful. No blood was found by the I. O. in the room, no blood stained cloths was seized. In the evidence of PWs 1, 4 and 5 it has come that sister-in-law of informant was sleeping in a room on the ground floor. The prosecution story that door was set on fire and thereafter, the appellants and others entered into the room appears not believable. As per description of the room persons standing on the veranda would easily shot him without entering into the room. No empty cartridges were alleged to be found in the veranda as disclosed by PW 4 Jitendra Sah. PWs 1 and 4 are tutored witnesses. No villager or independent witness has come forward to support the prosecution case as the same is false and concocted. No empty cartridges were alleged to be found in the veranda as disclosed by PW 4 Jitendra Sah. PWs 1 and 4 are tutored witnesses. No villager or independent witness has come forward to support the prosecution case as the same is false and concocted. It is not believable that in the winter night they were sleeping on bed of straw on the floor. The I. O. has not found the articles as disclosed by them in the room and that makes the prosecution story doubtful. How the appellants and others will enter into the room after crossing the burning door and paddy. Several persons named in the fard-beyan, helped in extinguishing the fire with water has not supported the same. The three witnesses are not reliable. The informant, PW 5, states that she did not send anyone to inform the Police nor she went to Police Station which is only six kilometer from the place of occurrence. The sister-in-law has not come in the Court to support the prosecution version. A protest petition was filed in the court by the informant in which a list of properties looted at that night was given but in the court she denies to have filed the protest petition. The protest petition has been proved by a clerk and typist. She also states that her husband used to bring money ten thousand and some times five thousand but she did not state as to where she used to keep the money. She claims to have purchased the house within two years of the alleged occurrence valuing Rs. 1,11,000/- which goes to show that her husband was engaged in some sort of illegal dealings. It appears that Shiv Balak Sah the deceased was sleeping on the ground floor. He was chased by the dacoits and ultimately he was shot by the dacoits from the Veranda. PW 4 has stated that Chowkidar had come but the name of accused persons were not disclosed to him whereas the defence witnesses are reliable and probable. PW 2 is an interested witness and as such the appellants are not guilty. 9. On the other hand learned APP has argued that the prosecution has been able to substantiate the charges as framed and two appellants have rightly been convicted. PW 2 is an interested witness and as such the appellants are not guilty. 9. On the other hand learned APP has argued that the prosecution has been able to substantiate the charges as framed and two appellants have rightly been convicted. Why the wife and son of the deceased, who were present at the time of occurrence, will try to implicate innocent and not the real culprit. Their versions are reliable and probable. 10. Now to scrutinize the evidence, we take up PW 1 Kundan Kumar Sah. He is the son of the deceased and the informant. He in his examination has stated his age as 12 years. His understanding was at first taken into consideration by the trial court and then his deposition was recorded. At the time of occurrence, he might be 10 years old. He has stated that from the window he saw the miscreants and all were having pistols in their hands. After burning of the door, the miscreants entered into the room. He has named all the accused persons. He at the time of identification of the accused persons in court while deposing started weeping and then, his further examination was postponed. On the next day he was examined. In paragraph 2 he has stated that Ram Pratap Sah opened fire which hit his father and then, Chandrashekhar Sah also opened fire when his father had fallen down. During cross-examination, in paragraph 18, he has stated that he cannot say about dacoity in his house. In paragraph 24 he again states that after first shot his father fell down and there was bleeding and then, second shot was fired. When miscreants fled away, he went near his father. His attention has been drawn towards his earlier statement where he states that whatever he has stated in the court has stated before the Investigating Officer also. He has been cross-examined at length but his testimony remained intact and he has not been shaken. 11. PW 2 Kaushal Sah, being neighbour, has also supported the prosecution version. He has opened the fire with his licensee gun to deter the accused persons. PWs 1 and 5 named the appellants and others before him as to how they shot dead Shiv Balak Sah. During cross-examination, this witness has become more competent and independent too when, in paragraph 5, he states that the accused Garib Sah is his cousin. He has opened the fire with his licensee gun to deter the accused persons. PWs 1 and 5 named the appellants and others before him as to how they shot dead Shiv Balak Sah. During cross-examination, this witness has become more competent and independent too when, in paragraph 5, he states that the accused Garib Sah is his cousin. In paragraph 7, he states that no theft of any article was committed as told by PW 5. In paragraph 14, he states that he fired when he heard the sound of save-save, to deter the accused persons. He told the Chowkidar to lodge the FIR at Police Station. He has admitted about the enmity. 12. PW 3 is Anirudh Goshwami. He is a witness of inquest. PW 4 Jitendra Kumar Sah is aged about 14 years. He is the son of the deceased. In his presence his father was shot dead. He has stated that the accused persons entered into the room after burning the door. He has stated that the appellant Pratap Sah shot his father as a result he fell down. His father was requesting not to kill him but again the appellant Chandrashekhar Sah shot him causing his death. He has been cross-examined at length but his version remained consistent and intact. In paragraph 11 he specifically states that from his house no articles were looted away. 13. PW 5 Kaushalya Devi is the informant herself. She has also narrated as to how the appellants and others entered into the room after burning the door. She further states that after entering the room, appellant Ram Pratap Sah @ Pratap Sah opened fire which hit the chest of her husband and thereafter, in spite of request made by her husband, the appellant Chandrashekhar Sah again shot upon him which hit his right chest resulting her husband fell down and after seeing her husband dead, the appellants and others fled away. The attention of this witness has been drawn towards her earlier statement. She has been cross-examined at length. She has also stated about the motive behind the occurrence. She has proved the place of occurrence, manner of occurrence and participation of the appellants in committing the murder of her husband. In paragraph 15, she states that her husband had purchased 3 Bhigha of land and after selling the grains used to bring rupees ten thousand or five thousand. She has also stated about the motive behind the occurrence. She has proved the place of occurrence, manner of occurrence and participation of the appellants in committing the murder of her husband. In paragraph 15, she states that her husband had purchased 3 Bhigha of land and after selling the grains used to bring rupees ten thousand or five thousand. She does not know where her husband used to keep the money. In paragraph 22, she states that her husband’s paternal house was at Chotti Naki. In paragraph 39 she again states about the appellants as to how they killed her husband. She has stated that no articles were taken away by anyone on the date of occurrence. In paragraph 61, she denies about protest petition but she admits that someone has taken her signature on plain paper. She has also proved her signature on Vakalatnama as Ext. A/1. The evidence of this witness is consistent regarding the participation of the appellants in the crime. PW 6, Bharat Sah, is a witness of fard-ebayn. PW 7 Jharu Sah has been tendered. PW 8 Banshi Yadav has proved his signature on the fard-beyan. PW 9, Shambhu Nath Sah, has also been tendered. PW 10, Rohin Sah, has turned hostile. He has stated that his statement was not recorded by any Police officers. In paragraph 5, he admits that he used to cultivate the land of Garib Sah after taking the same on bhauli (Batai) and that is the reason that he turned hostile. PW 11, Upendra Kumar, is the Investigating Officer who has investigated the case and he recorded the statement of prosecution witnesses. He prepared the inquest report, investigated the place of occurrence and found burnt door and burnt bags containing paddy. He has described the place of occurrence. During investigation, he recorded the statement of witnesses and after completion of the investigation he submitted chargesheet against the appellants and others. In paragraph 14, he has stated that PW 2 has stated before him that PW 5 has stated that Pratap Sah and Chandrashekhar Sah (appellants) killed her husband. In paragraph 15, this witness states that as to what PW 4 has stated before him. In paragraph 16, this witness states regarding the earlier statement of PW 5. In paragraph 14, he has stated that PW 2 has stated before him that PW 5 has stated that Pratap Sah and Chandrashekhar Sah (appellants) killed her husband. In paragraph 15, this witness states that as to what PW 4 has stated before him. In paragraph 16, this witness states regarding the earlier statement of PW 5. In paragraph 19, this witness states that he has not recorded the statement of Chowkidar Prakash Paswan and Budhi Nath Paswan (DW 1 and DW 2) respectively. From the statement of this witness it is apparent that at least PWs 1, 2, 4 and 5 have stated the names of the appellants in their earlier statements recorded by this witness. 14. PW 12, Dr. H. I. Ansari, is the doctor who has conducted the post mortem on the dead body of the deceased. He has found two firearm injuries on the deceased. One is firearm wound of entry on the right side of the chest 2” below on the middle of the right clavicle margin 1 ½” x 1 ¼” x Chest Cavity deep and another was also fire arm wound of entry on the right side of chest 4” below injury no. 1, the size of the wound was 1 ½” x ½” x liver deep. He has proved the post mortem report as Ext. 6. 15. These are all the evidence of prosecution. After careful and cautious scrutiny of the evidence, adduced on behalf of the prosecution, it is manifest that the husband of PW 5 was shot dead by the two appellants and both have fired upon the deceased. The evidence of prosecution to that extent is intact and consistent. The occular evidence as well as the medical evidence are consistent and no doubt can be created over the same. 16. So far as DW 1 Prakash Paswan is concerned, it appears that he is Chowkidar and suppressing the truth. The Investigating officer has not recorded his statement. In paragraph 3, he states that he has not talked to any women of the house of the deceased. DW 2, Budhi Nath Paswan, is also a Chowkidar and he also appears not reliable. He states that he came to know that at village Sakarama there was dacoity. His statement was also not recorded by the I. O. DW 3 is the typist who has proved the typed application as Ext. DW 2, Budhi Nath Paswan, is also a Chowkidar and he also appears not reliable. He states that he came to know that at village Sakarama there was dacoity. His statement was also not recorded by the I. O. DW 3 is the typist who has proved the typed application as Ext. B. DW 4 has proved the signature of Advocate on Vakalatnama and also on the protest petition. He is the stamp vendor. The defence has brought the protest petition on the record alleged to be filed by PW 5. From perusal of that protest petition it reveals that in earlier version there is allegation regarding at least involvement of the appellants and others in the murder of the informant’s husband and thereafter, a list of articles alleged to have been taken away by the miscreants has been tagged. The version of PW 5 that on plain paper her signature was obtained appears to be true after perusal of the protest petition vide Ext. A. Entire protest petition has been marked as Ext. B. Thus, the protest petition is not helpful to the defence rather it substantiates the prosecution case regarding the participation of the appellants in the murder of informant’s husband. 17. The argument advanced on behalf of the appellants that PW 5 suppressed the material facts is not tenable. It is not possible for a human to state exactly similar facts at two different times. The learned Trial Court has not committed any error in believing the version of PWs 1, 4 and 5. In recording fard-beyan there is some delay but that is explained one. The prosecution has succeeded in proving the charges against these two appellants. Due to fault of Investigating Officer that he did not seize blood stained cloths, the prosecution case cannot fail. No doubt can be created on the evidence of PWs 1, 4 and 5 which finds corroboration with the version of PW 2 which has already been discussed above, protest petition (Ext. B) is not helping the defence rather in that petition also the appellants are named as assailants. No doubt can be created on the evidence of PWs 1, 4 and 5 which finds corroboration with the version of PW 2 which has already been discussed above, protest petition (Ext. B) is not helping the defence rather in that petition also the appellants are named as assailants. The learned Trial Court after careful and cautious scrutiny of the prosecution evidence has rightly come to the conclusion that the appellants Pratap Sah @ Ram Pratap Sah and Shekhar Sah @ Chandra Shekhar Sah have committed the offence under Sections 302, 436, 148 of the Indian Penal Code and Section 27 of the Arms Act. 18. Accordingly, The judgment of conviction and order of sentence is hereby confirmed and Cr. Appeal No. 14 of 1991 (DB) is dismissed. The bail bonds of the appellants namely, Pratap Sah @ Ram Pratap Sah and Shekhar Sah @ Chandra Shekhar Sah are hereby cancelled and they are directed to surrender before the learned Trial Court to serve the sentences. The learned Trial Court is also directed to take necessary steps in this regard. 19. So far as Cr. Revision No. 112 of 1991 is concerned, no one appeared to press the same which has been filed against the acquittal of the opposite party no. 2 to 9 by the impugned judgment convicting only two accused, namely, appellants of Cr. Appeal No. 14 of 1991 (DB). The learned Trial Court, after taking into consideration the evidence available on the record, has acquitted the opposite party nos. 2 to 9 as the prosecution has not been able to prove their participation in the alleged crime beyond reasonable doubt. After noticing the material contradictions in the statement of PW 2 Roshan Sah, before PW 11, the Investigating Officer, who has stated that PW 5 the wife of the deceased Shiv Balak Sah, told him that appellants Pratap Sah and Chandra Shekhar Sah killed her husband. The learned Trial Court in paragraph 15 sub-paragraph 6 has wrongly mentioned the Investigating Officer as PW 9 and this appears to be a clerical mistake and, therefore, instead of PW 9, it would be PW 11 paragraph 14. Thus doubt has been created regarding participation of opposite party no. 2 to 9. The learned Trial Court in paragraph 15 sub-paragraph 6 has wrongly mentioned the Investigating Officer as PW 9 and this appears to be a clerical mistake and, therefore, instead of PW 9, it would be PW 11 paragraph 14. Thus doubt has been created regarding participation of opposite party no. 2 to 9. If the trial court has given benefit of doubt to these opposite parties after considering all relevant facts, we do not consider it appropriate to reverse the same as that finding is based on sound legal principles. 20. In the result, we find no merit in the revision filed by the informant and the same is hereby dismissed. 21. The end result is that the criminal appeal and the criminal revision are both dismissed. Navaniti Prasad Singh, J:- I agree. Appeal and revision both dismissed.