JUDGMENT JUSTICE SUDHIR SINGH As many as five persons, namely, Rajendra Mahto alias Rajendra Singh, Harihar Mahto alias Harihar Singh, Sakhi Mahto, Rameshwar Mahto alias Ramashis Singh and Thakur Mahto were tried for the offences punishable under sections 302/34 of the Indian Penal Code and 27 of the Arms Act in relation to the death of one Ramjanam Mahto of Village Semari, District-Rohtas at Sasaram. The information about the death was furnished by the son of the deceased, namely, Rajnath Mahto(P.W.9) on 30-10-1983. He stated that his father (deceased) and his son had gone to Sasaram on a bicycle whereas he had gone to a flour mill in the neighboring village Singuhi for milling the wheat. He stated that on reaching the Singuhi Syphon, across the river in the village, he found that his son and father were coming on a bicycle and at the same time the accused are said to have hidden in an abandoned Government quarter of Canal Department, and appellant no.1 i.e., Harihar Singh is said to have asked the other accused i.e., Rajendra Mahto to kill Ramjanam Mahto since he was giving trouble in litigation and thereupon, appellant Rajendra Mahto in Cr. Appeal No.176/92 shot Ramjanam Mahto in the head and thereupon he fell down. It is stated that the other accused also attacked the deceased and they attempted to attack him and his son also but they escaped. The F.I.R. was registered shortly thereafter. The Station House Officer took up the investigation. The inquest and post mortem of the dead body was conducted, and on completion of investigation, charge sheet was filed. Since the accused pleaded not guilty, the trial was undertaken. Through its judgment dated 26-5-1992, the trial court convicted all the accused of the offence of murder and sentenced to undergo imprisonment for life. Appellant no.1 Rajendra Mahto filed Cr. Appeal No. 176/92. Since he died during the pendency of the appeal, it was dismissed as abated on 11-2-2015. In the present appeal, appellant no.1 Harihar Mahto alias Harihar Singh, appellant no.3 Thakur Mahto and appellant no.4 Sakhi Mahto died during the pendency of the appeal. Hence, the appeal as against them abated. The appeal survives vis-à-vis appellant no.2 Rameshwar Mahto alias Ram Ashis Singh. In the present appeal, appellant no.1 Harihar Mahto alias Harihar Singh, appellant no.3 Thakur Mahto and appellant no.4 Sakhi Mahto died during the pendency of the appeal. Hence, the appeal as against them abated. The appeal survives vis-à-vis appellant no.2 Rameshwar Mahto alias Ram Ashis Singh. On hearing the learned counsel for the parties, we find that the only point for determination is as to whether the prosecution has been able to prove its case and the charges levelled against the accused persons beyond any shadow reasonable doubt. The witnesses presented by the prosecution before the trial court is that P. Ws. 8 and 9 who are the eye-witnesses of the occurrence. P.W. 9 is the informant of the case and the son of the deceased. P.W. 8 is the son of informant i.e., P.W.9. P.W. 8 Ram Pravesh Mahto is the grand-son of the deceased. In his evidence, he stated that on 30.10.1983 he came to Sasaram with his grand-father on cycle to purchase lime and when they were returning home in the evening at 4.00 P.M., riding on two different cycles, his grand-father was ahead on him. He stated that when they reached the government quarter (i.e., place of occurrence) where no one lives, he saw all the six accused persons who came out of it, Rajendra with rifle, Harihar with gun, Rameshwar with gun, Thakur with burchha, Bharosha with Garasa, Sakhi with small gun. Harihar Mahto is said to have exhorted others to kill his grand-father as he caused them troubled us by fighting the case. Upon this, Rajendra Mahto is said to have fired his rifle on his grand-father and the latter fell down and Harihar Mahto fired from his gun at the chest of his grand-father. This witness has specifically stated that bullet fired by Rajendra caused injury on the temple of his grand-father on the right side and Bharosha Mahto assaulted his grand-father with Garasa on his neck. He deposed that the accused persons opened fire and chased him, his father and other, but fled away raising alarm. This witness has specifically stated that bullet fired by Rajendra caused injury on the temple of his grand-father on the right side and Bharosha Mahto assaulted his grand-father with Garasa on his neck. He deposed that the accused persons opened fire and chased him, his father and other, but fled away raising alarm. P.W.9 is Raj Nath Mahto, informant of the case, in his evidence, he has stated that on the alleged date of occurrence, his father and his son had come to Sasaram and he had gone to village-Singuhi for getting flour from the Flour Mill on the way back, he met with his son and his father near Singuhi Syphon at 4.00 P.M. and proceeded towards their houses. He has given description of P.O. and the manner of occurrence. His father Ramjanam Mahto and son Rampravesh P.W. 8 came on the cycle. His father was ahead to his son. When they reached the P.O., all the six accused came out. Rajendra Mahto armed with rifle, Harihar with gun, Thakur with burchha, Sakhi with small gun, Bharosha with Garasa, Rameshwar Mahto was armed with something which he does not remember on the order of Harihar Mahto, Rajendra Mahto fired upon his father causing injury on his ear. Harihar fired from his gun causing injury on the chest of his father. When his father fell down, Bharosha Mahto assaulted him with Garasa but he could not mark where it caused the injury. The accused persons chased him and his son but they fled away raising alarm while fleeing away he heard sound of two or three shots. From a distance, he saw that the accused persons were carrying one person. When he and his son went and saw his father he was dead. On alarm, Ramkrit, Gulabchand, Ramgahan, Ramkuwar, Sudarshan and some others had come to whom he and his son narrated the occurrence. He has further stated that he took Ramratan Choukidar and went to Sheosagar Police Station where the officer-in-charge directed him to go Sasaram Police Station as the P.O. was within the jurisdiction of the said Police Station. Thereafter, the case was lodged and his statement was recorded by the police. P. Ws. 1, 2, 5, 6 and 7 are concerned, they were examined and the documentary evidence comprising of F.I.R., postmortem and others have been proved by them. As far as P. Ws. Thereafter, the case was lodged and his statement was recorded by the police. P. Ws. 1, 2, 5, 6 and 7 are concerned, they were examined and the documentary evidence comprising of F.I.R., postmortem and others have been proved by them. As far as P. Ws. 3 and 4 are concerned, they are hear-say witnesses. The trial court convicted and sentenced the appellant on the basis of the abovementioned evidence on record. In this case, P. Ws. 8 and 9, who are none other then the grand-son and son of the deceased respectively are said to be eye witnesses. According to P.W. 8, two fire shots were fired upon the deceased, one by Rajendra and other by Harihar, causing injury on the ear and on the chest respectively. Bharosha is said to have given a Garasa blow upon the deceased but from perusal of the fardbeyan (Ext.- 4), it is apparent that this witness has tried to change the facts relating to the manner of occurrence for the reasons that in the fardbeyan it has been only stated in respect to Rajendra Mahto who is said to have fired upon the deceased. No such allegation has been made against Harihar of making firing and causing injury to the deceased. The fardbeyan does not disclose any allegation against Bharosha Mahto for causing injury by Garasa upon the deceased. This witness has further stated that on alarm being made by him, Ramkrit, Gulabchand, Ramgahan, Ramkuwar, Sudarshan and others had come to the P.O. where this witness and his father P.W. 9 had narrated the occurrence to them. P.W. 9 is the author of the fardbeyan(Ext.-4) and from perusal of Ext. 4, it is apparent that no such statement has been made by P.W. 9 while his fardbeyan was recorded by the police.. On a specific question during cross-examination of this witness as to who were those accused persons who chased and fired upon him and on his father, he could not give a definite answer. He further stated that the accused persons had opened fire upon him and his father P.W. 9 and they were chased but instantly from perusal of fardbeyan, it is clear that no such allegation of firing upon this witness or upon P.W. 9 has been made. He further stated that the accused persons had opened fire upon him and his father P.W. 9 and they were chased but instantly from perusal of fardbeyan, it is clear that no such allegation of firing upon this witness or upon P.W. 9 has been made. It has not been disclosed by this witness that who were the persons who fired upon him and his father and chased both of them from the P.O. From the deposition of this witness, it appears that his evidence is not trustworthy and same cannot be relied upon for the reasons that he has tried to change the facts relating to the manner of occurrence as alleged by P.W. 9 in his fardbeyan recorded by the police. It cannot be overlooked that this is none but the grand-son of the deceased and there is an admitted land dispute between the parties. As per the fardbeyan, it is apparent that only one fire shot was made upon the deceased by the accused Rajendra Mahto but later on for the reasons best known to him he has tried to attribute injury to other accused which makes his deposition doubtful and the same can not be relied upon. Now coming to the evidence of P.W. 9, who is the author of the fardbeyan (Ext.- 4). On the basis of which, the present case has been instituted. He has claimed himself to be an eye witness to the occurrence but the manner of occurrence he has stated in the fardbeyan is different from the manner of occurrence which he has stated in his deposition during the trial. In the fardbeyan, he has alleged only against the accused Rajendra Mahto for making firing upon his father due to which his father succumbed to injury. But instantly in his deposition he has made allegation against Harihar also for making firing upon his father which hit on the chest of his father which is not mentioned in the fardbeyan. In the fardbeyan, there is no allegation against Bharosha Mahto for assaulting his father by Garasa but evidence that came during his deposition discloses that Bharosha has caused injury by Garasa upon his father. In his deposition, he has further disclosed the name of some other witnesses i.e., Ramkrit, Gulabchand, Ramgahan, Ramkuwar, Sudarsan and others who had come to the P.O. on being alarm made by him and his son P.W. 8. In his deposition, he has further disclosed the name of some other witnesses i.e., Ramkrit, Gulabchand, Ramgahan, Ramkuwar, Sudarsan and others who had come to the P.O. on being alarm made by him and his son P.W. 8. This evidence also do not find place in the fardbeyan. In his deposition, he has admitted that one person Bharosha Mahto was being carried by the accused who later on died. A suggestion has also been made by the defence to this witness that he entered the house of Bharosha and killed him and has brought this case by way of defence. Though this witness has denied these allegations. No doubt, this witness has tried to change the manner of occurrence. He is none but son of the deceased. Hence, he is an interested witness and his evidence appears to be doubtful due to contradictions that he has made in his deposition during trial and what he had stated in the fardbeyan. As far as the evidence of other witnesses is concerned, P. Ws. 1, 2, 5 and 7 are not of much relevance as they are formal witnesses. P. Ws. 3 and 4 are hear-say witnesses, hence, much importance can not be attached to their evidence. It would be not out of place to mention here that the doctor who had conducted postmortem has not been examined as the prosecution witness. The postmortem report has been proved by P.W. 6 who is the clerk at Sadar Hospital, Sasaram. As per the post mortem report(Ext.-3), as many as four injuries have been found on the body of the deceased and if the fardbeyan made by P.W. 9 be taken into account there is allegation of single fire shot. Hence, P. Ws. 8 and 9 have tried to change the manner of occurrence which creates a serious doubt on the deposition made by the said witness in course of trial. It is a consistent evidence that Bharosha is said to have been carried after the occurrence by the accused persons and Ext.-B suggests that Bharosha died at Varanasi ten days after the occurrence. If it is a fact that Bharosha had sustained injury in course of occurrence, the same ought to have been explained by the prosecution. It is a consistent evidence that Bharosha is said to have been carried after the occurrence by the accused persons and Ext.-B suggests that Bharosha died at Varanasi ten days after the occurrence. If it is a fact that Bharosha had sustained injury in course of occurrence, the same ought to have been explained by the prosecution. However, for the reasons best known to the prosecution, they have tried to suppress the said fact and it raises a serious doubt on the case of prosecution. It is true that enmity cuts both ways. It would be not out of place to mention here that the fardbeyan has been recorded two hours after the time of occurrence. The alleged occurrence is said to have taken place at 4.00 P.M. on 30.10.1983 whereas the fardbeyan was recorded at 6.00 P.M. on 30.10.1983. From perusal of the F.I.R., it appears that the distance to the police station is hardly 4 K.M. from the P.O. The Investigating Officer at para-14 of his deposition has specifically stated that he recorded the statement of Bharosha after the statement of Rajnath Mahto. In para-15, he has admitted that from the statement of Rajnath and Bharosha who were accused but he did not arrest them as he found them injured and in serious condition. In our endeavour to ensure that none of the relevant facts miss our attention, we have gone through the entire records carefully. What we find from it is that there is hardly any consistency between the version presented in the fardbeyan on the one hand and the evidence adduced in the trial on other hand. Viewed from any angle, we find that the prosecution failed to prove its case against the sole appellant herein. We, therefore, allowed the appeal and set aside the conviction and sentence ordered by the trial court. Since the appellant 2 Rameshwar Mahto alias Ram Ashis Singh is already on bail, his bail bond shall stand cancelled.