JUDGMENT : RAKESH KUMAR, J. 1. Since appellants of both appeals have been convicted and sentenced by the common Judgment, both appeals were heard together and are being disposed of by common Judgment. 2. Appellant no.1, Govind Yadav (in Cr.Appeal No.261 of 1993) was convicted for the offence under Section 302/149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. He was further convicted under Section 307 of the Indian Penal Code and directed to undergo rigorous imprisonment for ten years. He has also been held guilty and convicted for the offence under Section 27 of the Arms Act and sentenced to undergo rigorous imprisonment for three years. Remaining five appellants i.e. (i) Masudan Yadav (ii) Kapildeo Yadav (iii) Kailash Yadav (iv) Bijay Yadav and (v) Shreedhar Yadav were convicted under Section 302/149 of the Indian Penal Code and directed to undergo rigorous imprisonment for life. They were further convicted under Section 307/149 of the Indian Penal Code and directed to undergo rigorous imprisonment for ten years. They have further been held guilty and convicted under Section 148 of the Indian Penal Code and directed to undergo rigorous imprisonment for one year. Appellant Devendra Yadav (in Cr.Appeal No.375 of 1993) has been held guilty and convicted under Section 302 of the Indian Penal Code and directed to undergo rigorous imprisonment for life. Under Section 307 of the Indian Penal Code he was further held guilty and convicted and directed to undergo rigorous imprisonment for ten years. He has further been held guilty and convicted under Section 148 of the Indian Penal Code and directed to undergo rigorous imprisonment for one year. They have been convicted and sentenced by Judgment dated 25th May,1993 passed in Sessions Trial No.203 of 1987, arising out of Rajoun P.S. Case No.86 of 1986 by Sri Manohar Prasad, learned 1st Addl. Sessions Judge, Bhagalpur. 3. The prosecution case as per F.I.R. is that on 06.07.1986 at about 12.30 hours at the house of Sri Krityanand Yadav, Sri Narvadeshwar Mishra, Sub-Inspector of Police recorded his fardbeyan. In the fardbeyan, the informant disclosed that his step nephw are five brothers and the informant are two brothers from one mother. Khangi Batwara through Panchayati was already done. Even thereafter, they were residing in Janani Kita. In his share, he had got portion of Gohal (cow-shed). In the fardbeyan, the informant disclosed that his step nephw are five brothers and the informant are two brothers from one mother. Khangi Batwara through Panchayati was already done. Even thereafter, they were residing in Janani Kita. In his share, he had got portion of Gohal (cow-shed). The informant further disclosed that earlier he was asked by his step nephew Masudan Yadav to leave the place and construct house in his own portion. Thereafter, he got prepared bricks for the purposes of construction of his house and about 20 days back from the date of occurrence, he had started carrying bricks for the same purpose and construction to the some extent had started. Thereafter, he was asked by the accused persons not to make any construction, which was not agreed by him, whereupon there was mar-pit in between the parties. The informant disclosed that accused persons had got a notice served through an Advocate. The informant further stated before the Sub-Inspector of Police that on the same day at about 9.00 A.M., while he along with his son Jaikant Yadav (P.W.2), Chandra Shekhar Yadav(P.W.1) and his cousin brother Gorelal Yadav (deceased) was having breakfast in eastern side of verandah of his own portion, all accused persons, namely, Masudan Yadav carrying garasa, Devendra Yadav carrying country-made pistol in his hand, Mahendra Yadav carrying bhala in his hand, Surendra Yadav carrying Khanti, Shreedhar Yadav carrying lathi, Vijay Kumar Yadav carrying lathi, Kailash Yadav carrying sword, Kapildeo Yadav carrying bhala and Govind Yadav carrying pistol assembled there and unauthorisedly intruded on his portion of the land. Accused appellants Masudan Yadav and Govind Yadav exhorted to kill Mukhiya. Thereafter, accused Devendra Yadav and Govind Yadav, with a view to kill him fired two shots. However, the same did not hit him. The informant further stated that his cousin brother Gorelal Yadav wanted to proceed towards the informant side. In the meanwhile, Govind Yadav and Masudan Yadav ordered and, thereafter, Devendra Yadav fired one shot, which hit back side of his cousin brother and he fell down and instantaneously died. The informant further stated that after his brother died, accused persons started throwing bricks and they fled away. The informant said that the said occurrence was seen by him, his sons, his wife and other villagers. The informant further stated that after his brother died, accused persons started throwing bricks and they fled away. The informant said that the said occurrence was seen by him, his sons, his wife and other villagers. After recording fardbeyan at the place of occurrence near the house of the informant i.e. village-Malti, Police Station-Rajoun, District-Bhagalpur, the police on the same day i.e.06.07.1986 at 12.30 hours drew a formal F.I.R. vide Rajoun P.S. Case no.86/1986 and the Sub-Inspector of Police, who had recorded fardbeyan, himself started investigating the case. It is evident from the F.I.R. itself that the place of occurrence was about 12 Kilometer away from Rajoun Police Station. 4. In the F.I.R. nine persons, namely, (i) Devendra Yadav (ii) Masudan Yadav (iii) Shreedhar Yadav (iv) Surendra Yadav (v) Mahendra Yadav (vi) Vijay Kumar Yadav (vii) Govind Yadav (viii) Kailash Yadav (ix) Kapildeo Yadav were named accused. During investigation co-accused Mahendra Yadav died and, as such, charge-sheet was submitted against aforesaid seven appellants. However, investigation in respect of one of the F.I.R. named accused was kept pending. Charge-sheet was submitted on 26.10.1986. After cognizance order and completion of process under Section 207 of the Code of Criminal Procedure, the case was committed to the court of Sessions and, as such, the case was numbered as Sessions Trial No.203 of 1987. 5. Thereafter, on 31.05.1989 charges were framed against accused persons, for which they have been convicted and sentenced. Since accused persons denied charges, they were put on trial and to prove the case from the prosecution side altogether six witnesses were examined. In the trial, four witnesses i.e. (i) Chandrashekhar Yadav (P.W.1) (ii) Jaikant Yadav (P.W.2) (iii) Indira Devi (P.W.3) and (iv) informant Krityanand Yadav (P.W.4) have been examined as eye witness to the occurrence, whereas the doctor, who conducted autopsy on the dead body of the deceased Gorelal Yadav, namely, Dr. Jagarnath Prasad has been examined as P.W.6 and the Investigating Officer, namely, Narvadeshwar Mishra has been examined as P.W.5 in this case. P.W.1 to P.W.3, who have claimed to be eye witness, are none else, but P.Ws. 1 and 2 are sons of the informant Krityanand Yadav (P.W.4) and Indira Devi( P.W.3) is the wife of the informant( P.W.4). 6. Jagarnath Prasad has been examined as P.W.6 and the Investigating Officer, namely, Narvadeshwar Mishra has been examined as P.W.5 in this case. P.W.1 to P.W.3, who have claimed to be eye witness, are none else, but P.Ws. 1 and 2 are sons of the informant Krityanand Yadav (P.W.4) and Indira Devi( P.W.3) is the wife of the informant( P.W.4). 6. During examination-in-chief, Chandrashekhar Yadav(P.W.1) has stated that on 06.07.1986 at 9.00 A.M. he was at his Gohal with his father Krityanand Yadav (informant), Jaikant Yadav(P.W.2), Gorelal Yadav (deceased) and his mother (P.W.3) wife of the informant. At that very time, accused Masudan Yadav, Devendra Yadav, Mahendra Yadav, Shreedhar Yadav, Vijay Yadav, Kailash Yadav, Kapildeo Yadav and Govind Yadav arrived there. Devendra Yadav was carrying pistol, Masudan Yadav was having garasa, Shreedhar and Vijay were carrying Lathi, Kailash was carrying sword, Kapildeo was having bhala and Govind Yadav was keeping pistol in his hand. Immediately thereafter using abusive language, they said to kill the Mukhiya. He stated that his father was Mukhiya. Thereafter, this witness stated that they kept themselves behind a wall and saw that Devendra and Govind fired two shots, which did not hit them. Thereafter, when Gorelal Yadav (deceased) tried to proceed towards this witness, Govind ordered Masudan and thereafter Devendra fired and bullet hit in the back of Gorelal Yadav, upon which he fell down there. Subsequently accused persons throwing bricks fled away. In paragraph-9 of his cross-examination, this witness has admitted that there was dispute in between his father with sons of Late Mahavir Yadav. It is pertinent to mention that appellant no.2, namely, Masudan Yadav, appellant no. 6, namely, Shreedhar Yadav(both in Cr.Appeal(DB) No.261 of 1993) and sole appellant Devendra Yadav (in Cr.Appeal (DB) No.375 of 1993) are sons of Late Mahavir Yadav. He further stated that about 20 days back, from both sides cases were lodged. In paragraph-12 of his cross-examination, this witness (P.W.1) has stated that only two shots were fired on them and third firing had hit Gorelal Yadav and no further firing was made. He stated that Gorelal Yadav was sitting on a cot. He also stated that accused persons had said that Gorelal must be killed. In paragraph-23 of his cross-examination, this witness (P.W.1) has accepted that he had seen the gun of his father and he further accepted that his father along with gun was taken by Daroga Jee. He stated that Gorelal Yadav was sitting on a cot. He also stated that accused persons had said that Gorelal must be killed. In paragraph-23 of his cross-examination, this witness (P.W.1) has accepted that he had seen the gun of his father and he further accepted that his father along with gun was taken by Daroga Jee. In almost in similar manner, other witnesses have said about the occurrence and role played by other accused persons. 7. Even the informant Krityanand Yadav, who has been examined as P.W.4, has given the exact picture, which has been explained by other witnesses. The informant (P.W.4) has proved his signature on his fardbeyan, which was marked as Ext.1. He has also proved writing and signature of the Sub-Inspector of Police on fardbeyan, which was marked as Ext.1. In paragraph-10 of his cross-examination, this witness (P.W.4), who was the informant, has stated that he had not seen accused Surendra Yadav at the place of occurrence and even he denied that he had not stated same thing in his fardbeyan. In paragraph-11 of his cross-examination, he (P.W.4) has denied the suggestion that since at the time of occurrence, accused Surendra Yadav was inside the jail, he had said that he was not present nor he had stated in his fardbeyan. In paragraph-12 of his cross-examination, this witness (P.W.4) has stated that he had not received any injury, whereas accused persons had thrown bricks and they were variously armed at the time of occurrence. He further stated in paragraph-15 of his cross-examination that in the occurrence, three firings were made. Two firings were made earlier however, Khokha and pellets of cartridges were not produced. 8. P.W.6 is Dr.Jagarnath Prasad, who was at the relevant time posted as C.A.S, Sadar Banka and he had conducted post-mortem examination on the dead body of deceased Gorelal Yadav. He has stated that on 07.07.1986, he had conducted postmortem examination and found following ante mortem injuries: 1. “An oval wound having diameter of ¾” on the back just right side of the vertebrae. The matrix of wound was lacerated and inverted. The surrounding skin of the wound was stitched and blackened. The wound was leading into abdominal cavity. On dissection some loops of intestine were lacerated. The left lobe of liver was lacerated. The abdominal cavity contained free blood and clotted blood. The matrix of wound was lacerated and inverted. The surrounding skin of the wound was stitched and blackened. The wound was leading into abdominal cavity. On dissection some loops of intestine were lacerated. The left lobe of liver was lacerated. The abdominal cavity contained free blood and clotted blood. Pellets and cord bound were removed and sealed in the container.” 9. This witness (P.W.6) further stated that injury was caused by fire-arm and firing was made within four feet from the back. He opined that it may be gun-shot. Regarding time of death, he stated that it occurred in between more than 24 hours and less than 48 hours. He also proved post-mortem examination report, which has been marked as Ext.5. 10. Narvadeshwar Mishra (P.W.5) is the Investigating Officer. He has stated that he received information regarding a murder and, thereafter, he made Station Diary Entry on 06.07.1986 vide Entry No.119. Thereafter, he proceeded to village- Malti and on the same day at 12.30 hours, he recorded fardbeyan of Krityanand Yadav, which was already proved and exhibited as Ext.1. On the basis of said fardbeyan, he drew a formal F.I.R., which was marked as Ext.2.Thereafter, he prepared inquest report of the dead body of the deceased and inquest report has been marked as Ext.3. He inspected the place of occurrence and found blood mark near the cot, on which dead body was lying. He stated that after preparing inquest report, the dead body was sent for post-mortem examination and, subsequently, he received a report. In paragraph-8 of his cross-examination, he has stated that he inquired about the background of the deceased and he noticed that the deceased was a notorious dacoit. One brother of the deceased Babulal Yadav as well as his another brother Hargovind Yadav were earlier killed, regarding which Case no. 51/83 was already earlier lodged. In paragraph-9 of his cross-examination, he has stated that at the place of occurrence, he had not found any Khokha or part of cartridges. However, the pellets were recovered from the dead body of the deceased, which was mentioned in the post-mortem examination report. 51/83 was already earlier lodged. In paragraph-9 of his cross-examination, he has stated that at the place of occurrence, he had not found any Khokha or part of cartridges. However, the pellets were recovered from the dead body of the deceased, which was mentioned in the post-mortem examination report. His attention was drawn to the previous statement of Indira Devi (P.W.3) and he stated that she had served Murhi in the breakfast to her son, husband and Gorelal Yadav and, thereafter, while she was inside the courtyard, she heard hulla and thereafter she had come to the place of occurrence and seen accused persons. This witness (P.W.5) i.e. Investigating Officer has made categorical statement in paragraph-9 of his cross-examination that Mukhiya Krityanand Yadav-informant (P.W.4) was never arrested by him nor his gun was seized by him. 11. After close of prosecution evidence, statement of accused under Section 313 of the Code of Criminal Procedure was got recorded and they were explained about the evidences collected during trial. Thereafter, from the defence side also, one of the witnesses was got examined i.e. D.W.1-Sanjay Kumar Mishra, who had proved the writing and signature of the informant Krityanand Yadav in a written report, which was marked as Ext.C. He has also proved writing and signature of the Sub-Inspector of Police on the formal F.I.R., which was marked as Ext.D. However, this witness appears to be formal in nature. 12. Sri Praveen Kumar, learned counsel for the appellants has argued that from the entire evidence, available on record, it appears that none had seen the occurrence and subsequently story was cooked up to implicate all the rivals of the informant. He submits that the dispute in between the informant family and appellants is admitted. Even those facts have been accepted by the informant himself in his fardbeyan. He submits that the land dispute in between the parties was going on. Relating to land dispute, cases were lodged from both sides on each other. He submits that implication of appellants in the case is evident from bare perusal of the F.I.R. as well as statement of the informant recorded during trial. He submits that in the fardbeyan, the informant had alleged that nine accused persons had participated in the occurrence and out of nine, one Surendra Yadav regarding whom, it was alleged that Surendra Yadav was carrying Khanti with lathi in his hand. He submits that in the fardbeyan, the informant had alleged that nine accused persons had participated in the occurrence and out of nine, one Surendra Yadav regarding whom, it was alleged that Surendra Yadav was carrying Khanti with lathi in his hand. He submits that fardbeyan of the informant is very much specific regarding participation of Surendra Yadav but at subsequent stage his U-turn regarding non-mentioning as participant of Surendra Yadav in the occurrence creates serious doubt on the prosecution case. In the fardbeyan, the informant has specifically named Surendra Yadav as participant carrying Khanti with Lathi. However, in paragraph-10 of his cross-examination, he has said that he had not seen Surendra Yadav at the place of occurrence, even he asserted that in the fardbeyan, he had not stated that Surendra Yadav was carrying Khanti with lathi at the time of occurrence. According to Sri Praveen Kumar, learned counsel for the appellants, suggestion was given to this witness that he had changed version due to the reason that subsequently, this fact has surfaced that Surendra Yadav was already in jail on the date and at the time of occurrence. He submits that this conduct of the informant is sufficient to draw an inference that this informant was not truthful, rather the deceased, who was a notorious dacoit, was killed by someone else and none had seen the occurrence, but subsequently story was cooked up. He further submits that this is the reason that though fardbeyan was shown to be recorded at 12.30 hours on 06.07.1986, a formal F.I.R. was drawn at much belated stage at 8.30 P.M. in the same night and F.I.R. was sent to the court. Even before sending F.I.R. to the Court, the dead body was sent for postmortem examination. He has further argued that there is no explanation as to why once the inquest report regarding dead body of the deceased was prepared at 1.00 on the same date of occurrence i.e. 06.07.1986, what was the reason that the dead body was received on the next date i.e. 07.07.1986 at 12.30 P.M., which is evident from post-mortem examination report (Ext.6) (at Page 46 of Paper Book). It categorically suggests that the dead body was received at 12.30 P.M. on 07.07.1986. It categorically suggests that the dead body was received at 12.30 P.M. on 07.07.1986. Sri Praveen Kumar, learned counsel for the appellants has also argued that if there was any intention on the part of the appellants to assault or kill, then in that event the informant or his son would have been killed. There was no reason to kill a third person i.e. Gorelal Yadav, who was a distant relative of the informant. According to learned counsel for the appellants once the informant had asserted that all accused persons were variously armed, there was no reason to retreat after Gorelal Yadav had received gun-shot injury and the story of the prosecution that while fleeing away, accused persons threw bricks, also creates doubt on the prosecution case. According to learned counsel for the appellants, even the informant (P.W.4) in his cross-examination has stated that after the occurrence, he remained absent for half an hour and, thereafter, the police had arrested him with his gun. However, this story has been demolished by the Investigating Officer, which has already been discussed herein above. Accordingly, it has been argued that all the appellants were made accused only with a view to wreak vengeance, which was apparent regarding land dispute in between the informant side and the appellants side and, as such, the Judgment of conviction and order of sentence is liable to be set aside. 13. Sri Ajay Mishra, learned Addl. Public Prosecutor, opposing the appeals, has argued that merely on the ground of receipt of F.I.R. in the court belatedly, the prosecution case may not be questioned, particularly in the event, in which no attention of the Investigating Officer was drawn by the defence side. He submits that though the Investigating Officer was cross-examined at length, no suggestion was given to him about the reason of belated receipt of F.I.R. in the court. On this point, he placed reliance on a Judgment of Hon’ble Supreme Court reported in (2013)7 SCC 629 ; Manga @ Man Singh Vs. State of Uttarakhand. Besides this, he has argued that in the present case, there are four ocular witnesses, who are consistent witness and, as such, both appeals are fit to be dismissed. 14. Sri Mritunjay Prasad Singh, learned counsel for the informant has vehemently opposed the appeals and he adopts the argument, which was advanced by learned Addl. Public Prosecutor. 15. Besides this, he has argued that in the present case, there are four ocular witnesses, who are consistent witness and, as such, both appeals are fit to be dismissed. 14. Sri Mritunjay Prasad Singh, learned counsel for the informant has vehemently opposed the appeals and he adopts the argument, which was advanced by learned Addl. Public Prosecutor. 15. Besides hearing learned counsel for the parties, we have minutely examined the materials available on record including entire evidence. In the present case, though it has been alleged that occurrence had taken place at 9.00 A.M. in the village, to the reasons best known to the prosecution, none of the villagers had come forward to support the prosecution case. Besides this, it is a peculiar case, in which no seizure list witnesses or inquest witnesses were produced by the prosecution to support as to whether inquest or seizure was prepared in their presence or not, though seizure list as well as inquest report was prepared by the Investigating Officer and was proved by him. The second point, which creates serious doubt on the prosecution case, is that the informant in his fardbeyan had specifically named nine persons including one Surendra Yadav with specific allegation that he was carrying Khanti with Lathi, but subsequently after noticing fact that Surendra Yadav at the time of occurrence was already inside the jail, he took U-turn , even he has stated in deposition that he had not stated regarding participation of Surendra Yadav in the fardbeyan, which creates doubt on the credibility of the informant himself. Moreover, it is true that during trial, question was not asked regarding belated receipt of F.I.R. in the court, but it is fact on record, which suggests that F.I.R. was received in the court on 08.07.1986, whereas occurrence had taken place at 9.00 A.M. on 06.07.1986. On perusal of Ext.6, it is further clear that the dead body of the deceased Gorelal Yadav was received for postmortem examination on 07.07.1986 at 12.30 P.M. There is no explanation as to what was the reason for sending the dead body belatedly for postmortem examination. Once the inquest report suggests that it was prepared at 1.00 P.M. on 06.07.1986, what was the reason for sending the dead body of the deceased almost after 24 hours. 16. Once the inquest report suggests that it was prepared at 1.00 P.M. on 06.07.1986, what was the reason for sending the dead body of the deceased almost after 24 hours. 16. After examining the evidence on totality, we are of the opinion that there is serious doubt on the prosecution case particularly regarding involvement of the appellants. In the background that there was animosity between the parties, there was every possibility of false implication. Accordingly, we are of the considered opinion that the appellants may be extended the benefit of doubt. Accordingly, by extending the benefit of doubt, the impugned Judgment of conviction dated 25th May, 1993 and order of sentence dated 25th May, 1993 is hereby set aside. 17. Both appeals are allowed. Since all the appellants are already on bail, they are discharged from the liability of their bail bonds.