JUDGMENT : Rakesh Kumar, J. 1. All the aforesaid three Appeals arise out of the same occurrence pertaining to an F.I.R. vide Barh P.S. Case No. 338 of 2009 however accused persons were put on two trial and judgment of conviction has been passed in two different trials in the same occurrence. Six appellants in Cr. Appeal (D.B.) No. 167 of 2013 were tried in Sessions Trial No. 1149 of 2010 whereas appellant of remaining aforesaid two appeals i.e. Rajendra Rai in Cr. Appeal (D.B.) No. 371 of 2013 and Santosh Rai in Cr. Appeal (D.B.) No. 209 of 2013 were tried in Sessions Trial No. 350 of 2011 however judgment of conviction and sentence was passed by the same trial judge i.e. Sri Deo Nandan Prasad Singh, learned Ad-hoc Additional District And Sessions Judge-I, Barh, Patna. Accordingly all aforesaid three appeals were taken up together and are being disposed of by this common judgment. 2. Short fact of the case is that on 09.11.2009 Sub Inspector of Police Sri Mubarak Hussain (P.W. 8) of Barh Police Station recorded fardbyan of Karu Rai (P.W.7). The said fardbyan was recorded on 09.11.2009 at 6.30 Hours in the emergency ward of Sub Divisional Hospital, Barh. In the fardbyan the informant disclosed that on the same day i.e. 09.11.2009 at about 4.30 in the morning Rajendra Rai [sole appellant in Cr. Appeal (D.B.) No. 371 of 2013 ] , Nanoo Rai, Jitendra Rai, Gore Rai, Gariban Rai, Rabbi Rai, Sena Rai [all six appellants in Cr. Appeal ( D.B. ) No. 167 of 2013] and Santosh Rai [appellant in Cr. Appeal (D.B.) No. 209 of 2013] variously armed i.e. carrying lathi, danda arrived at the house of Pappu Yadav and started to demolish his house and they also started looting articles. All the accused persons were resident of village - Sikandra, P.S.-Barh, District Patna. On hearing sound of noise the informant and his brother Hira Rai [deceased] and others rushed to the place of occurrence. Rajendra Rai was aggravated and from his rifle he gave shot of firing on informant's brother namely: Hira Rai. After receiving injury he fell down on the Earth. The injury was caused on the upper side of left thigh and lower portion of the abdomen and blood started oozing out. Rajendra Rai was aggravated and from his rifle he gave shot of firing on informant's brother namely: Hira Rai. After receiving injury he fell down on the Earth. The injury was caused on the upper side of left thigh and lower portion of the abdomen and blood started oozing out. For the purposes of his treatment when the informant tried to carry the injured to hospital on a motorcycle with one Santosh Rai thereafter all the accused persons surrounded them. Anyhow after saving their life they carried the injured for his treatment to Sub Divisional Hospital, Barh and in emergency ward his treatment was going on. The injured was not in a position to speak. The reason for dispute was explained by the informant that there was land dispute in between Pappu Yadav and Rajendra Rai [appellant in Cr. Appeal (D.B.) No. 371 of 2013] and case was going on in court. The said fardbyan was read over to him and after finding it correct he put his signature on the bottom of the fardbyan. As a witness to the fardbyan one Biru Rai (P.W. 2) also put his signature. On the basis of the said fardbyan on 09.11.2009 at 7.30 A.M. a formal F.I.R. vide Barh P.S. Case No. 338 of 2009 was registered for the offence under Sections 307/34 of the Indian Penal Code, 1860 [hereinafter referred to as the "I.P.C."] and Section 27 of the Arms Act, 1959 [hereinafter referred to as the "Arms Act"]. Subsequently after death of the injured on 12.11.2009 Section 302 of the I.P.C. was added in the F.I.R. The F.I.R. was lodged against eight accused persons who are appellants in the aforesaid three appeals. 3. During investigation accusation was found true and thereafter on 30.04.2010 charge sheet was submitted against all the eight accused persons showing six accused persons as absconder whereas Santosh Rai [sole appellant in Cr. Appeal ( D.B. ) No. 209 of 2013] and appellant no. 4/Gariban Rai in Cr. Appeal (D.B.) No. 167 of 2013 were charge-sheeted under Sections 147/148/149/302 of the I.P.C. and Section 27 of the Arms Act. After submission of charge sheet learned Additional Chief Judicial Magistrate, Barh, Patna took cognizance of the offences. Thereafter on 09.07.2010 case of six accused persons was committed to the court of Sessions and as such it was numbered as Sessions Trial No. 1149 of 2010. After submission of charge sheet learned Additional Chief Judicial Magistrate, Barh, Patna took cognizance of the offences. Thereafter on 09.07.2010 case of six accused persons was committed to the court of Sessions and as such it was numbered as Sessions Trial No. 1149 of 2010. Subsequently on 09.08.2010 charge was jointly framed against six appellants in Cr. Appeal (D.B.) No. 167 of 2013 under Sections 147, 148, 302/149, 427 of the I.P.C. 4. After framing of charge to establish its case on behalf of the prosecution in Sessions Trial No. 1149 of 2010 altogether eight witnesses i.e. Pappu Yadav (P.W.1), Biru Rai (P.W.2), Dhananjay Rai (P.W.3), Ramlagan Prasad (P.W.6) and Karu Rai (informant)/ (P.W.7) were examined as eye witness to the occurrence. Dr. Siyaram Singh/P.W. 5 had firstly examined the injured. P.W. 4/Dr. Wasimuddin conducted post -mortem examination and Mubarak Hussain/P.W. 8 was the Investigating Officer of the case. 5. After completion of the prosecution evidence on 25.02.2011 statement of aforesaid six appellants under Section 313 of the Cr.P.C. was recorded in which they denied accusation and claimed to be innocent however no defence witnesses were examined. 6. In the said trial i.e Sessions Trial No. 1149 of 2010 Sri Deo Nandan Prasad Singh, learned Adhoc Additional District And Sessions Judge-I, Barh, Patna [hereinafter referred to as " trial judge" ] by its judgment dated: 12.02.2013 convicted all the aforesaid six appellants in Cr. Appeal (D.B.) No. 167 of 2013 for offence under Sections 302/149, 147, 148, 427 of the I.P.C. and Section 27 of the Arms Act and by order dated - 22.02.2013 the learned trial judge sentenced the aforesaid six appellants under Section 302/149 of the I.P.C. to undergo rigorous imprisonment for life and to pay a fine of Rs. 10000/- each. In case of default in payment of fine they were directed to further undergo rigorous imprisonment for three months. Under Section 147 of the I.P.C. they were sentenced to undergo rigorous imprisonment for six months. Under Section 148 of the I.P.C. they were directed to undergo rigorous imprisonment for one year. Under Section 427 of the I.P.C. they were directed to undergo rigorous imprisonment for three months and under Section 27 of the Arms Act all the six aforesaid appellants were directed to undergo rigorous imprisonment for three years. However all the sentences were directed to run concurrently. 7. Under Section 427 of the I.P.C. they were directed to undergo rigorous imprisonment for three months and under Section 27 of the Arms Act all the six aforesaid appellants were directed to undergo rigorous imprisonment for three years. However all the sentences were directed to run concurrently. 7. Since appearance of Rajendra Rai [appellant in Cr. Appeal (D.B.) No. 371 of 2013 ] and Santosh Rai [appellant in Cr. Appeal (D.B.) No. 209 of 2013] was not secured their cases were separated and after their appearance case of aforesaid two appellants were committed to the court of Sessions on 20-01-2011. After commitment on 11-04-2011 charge was jointly framed against the aforesaid two appellants under Sections 147, 148, 302/149, 427 of the I.P.C. and Section 27 of the Arms Act. After commitment it was numbered as Sessions Trial No. 350 of 2011 and the two appellants were tried by the same Judge i.e. Sri Deo Nandan Prasad Singh, learned Adhoc Additional District and Sessions Judge- I, Barh, Patna. After commitment on 11-04-2011 against both the appellants jointly charge under Sections 147, 148, 302/149, 427 of the I.P.C. and Section 27 of the Arms Act was framed. 8. After framing of charge to establish its case on behalf of the prosecution in the present trial altogether seven witnesses were examined and after completion of the prosecution evidence on 26.11.2012 charge against sole appellant in Cr. Appeal (D.B.) No. 371 of 2013 i.e. Rajendra Rai was amended and framed with Sections 302 & 427 of the I.P.C. and Section 27 of the Arms Act. Meaning thereby that after completion of prosecution evidence, on 28.09.2012 statement of aforesaid two appellants under Section 313 of the Cr.P.C. was recorded in which they denied charge and claimed to be innocent. At this juncture it is necessary to indicate that despite the fact that after completion of prosecution evidence statement of accused under Section 313 of Cr.P.C. was recorded on 28.09.2012, on 26.11.2012 charge was amended in respect of appellant Rajendra Rai. We have also examined the order sheet which does not indicate as to whether the appellant /Rajendra Rai was asked to further cross-examine witnesses after amendment of charge. We have also examined the order sheet which does not indicate as to whether the appellant /Rajendra Rai was asked to further cross-examine witnesses after amendment of charge. Without giving option to the appellant to further cross-examine witnesses, on the basis of amended charge the learned trial judge was not required to further proceed and held appellant/Rajendra Rai guilty for offence under Section 302 & 427 of the I.P.C. In this case also no defence witness was examined. The learned trial judge thereafter by judgment dated - 8th February 2013 in Sessions Trial No. 350 of 2011 has convicted appellant Rajendra Rai under Section 302, 147, 148, 149, 427 of the I.P.C. and Section 27 of the Arms Act and appellant/Santosh Rai was convicted for offence under Sections 302/149 , 147, 148, 427 of the I.P.C. and under Section 27 of the Arms Act and by order dated 18.02.2013 sentenced appellant Rajendra Rai to undergo rigorous imprisonment for life under Section 302 of the I.P.C. and to pay a fine of Rs. 10000/- . In case of default in payment of fine he was directed to undergo rigorous imprisonment for three months. He was also sentenced to undergo rigorous imprisonment for six months under Section 147 of the I.P.C. and under Section 148 (incorrectly mentioned as Section 147 of the I.P.C.) he was directed to undergo rigorous imprisonment for one year. Three months simple imprisonment under Section 427 of the I.P.C. Under Section 27 of the Arms Act he was directed to undergo rigorous imprisonment for three years. Similarly, appellant/Santosh Rai under Section 302/149 of the I.P.C. was sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 10000/-. In default of payment of fine he was directed to undergo three months rigorous imprisonment. Under Section 147 of the I.P.C. he was sentenced to undergo rigorous imprisonment for six months. Rigorous imprisonment for one year under Section 147 I.P.C. (correctly Section 148 of I.P.C.) and three months simple imprisonment under Section 427 of the I.P.C. Under Section 27 of the Arms Act he was directed to undergo rigorous imprisonment for one year. All the sentences were directed to run concurrently. 9. Since in one occurrence two trials had commenced though all the three Appeals are being disposed of by this common judgment, evidence of both trials are required to be considered separately. All the sentences were directed to run concurrently. 9. Since in one occurrence two trials had commenced though all the three Appeals are being disposed of by this common judgment, evidence of both trials are required to be considered separately. Sessions Trial No. 1149 of 2010 [Cr. Appeal (DB) No. 167 of 2013] 10. It would be appropriate to first examine the evidence of prosecution in Sessions Trial No. 1149 of 2010 corresponding to Cr. Appeal (D.B.) No. 167 of 2013. In this case informant/ Karu Rai was examined as P.W. 7. During his evidence he proved his signature n the fardbyan which was marked as Ext. 1/1, inquest report [Ext. 4] and protest petition as Ext. 5. In his evidence he stated that occurrence had taken place on 09.11.2009 at 4.30 A.M. At that very time he was in his house. After hearing hulla he came out from his house and saw aforesaid eight appellants demolishing the house of Pappu Rai {P.W. 1}. He stated that he reached at the place of occurrence with Hira Rai (deceased), Biru Rai (P.W.2), Dhananjay Rai (P.W.3), Ramlagan Rai (P.W.6), Bindeshwar Rai (not examined ), Haro Rai [not examined] , Mantu Rai (not examined) and Bhagwan Rai [not examined] and in paragraph 2 he categorically stated that at the place of occurrence one electric bulb was found. The said bulb was on electric pole and in the said light he identified all the accused persons. At this juncture it would be necessary to indicate that in the fardbyan this witness has not at all whispered regarding the source of identification but to the reasons best known to this witness/informant during evidence he has come out with a case as if one electric bulb was found and in the said light he could identify all the accused persons. He further deposed that he saw Hira Rai [deceased] was asking accused not to demolish the house or commit loot-paat . In the meanwhile all the accused persons said that this Hira Rai (deceased) was looking after the case of Pappu (P.W. 1). Thereafter appellant/Rajendra Rai fired from his rifle which hit in between thigh and stomach of Hira Rai. After getting such injury Hira Rai fell down. Thereafter this witnesses along with one Santosh Rai lifted the injured for carrying him on motorcycle to hospital. Thereafter all the accused persons started indiscriminate firing. Thereafter appellant/Rajendra Rai fired from his rifle which hit in between thigh and stomach of Hira Rai. After getting such injury Hira Rai fell down. Thereafter this witnesses along with one Santosh Rai lifted the injured for carrying him on motorcycle to hospital. Thereafter all the accused persons started indiscriminate firing. Due to said firing instead of going on motorcycle they preferred to carry the injured on a cot and reached hospital from a different route. In Barh Hira Rai was treated by the doctor and thereafter he was referred to P.M.C.H. however while the injured was being carried to P.M.C.H. on way near Athmalgola the injured died and thereafter the dead body was brought to Barh. In Barh hospital police came and recorded his fardbyan. This witness stated that the said fardbyan was recorded by Mubarak Hussain (daroga ji) on which he put his signature and one witness Biru who was examined as P.W. 2 also put his signature as a witness to the fardbyan. The said fadbyan was marked as Ext. This witness also deposed as if he was aware with the writing and signature of daroja ji i.e. Mubarak Hussain who had prepared inquest report and inquest report was got exhibited as Ext. 4. This witness also proved protest petition which was marked as Ext. 5. Attention of this witness was drawn to his previous statement which has been discussed in paragraph 12 and 13 of his cross -examination. In paragraph 12 of his cross examination he stated that in his fardbyan he disclosed that on hulla he went to the house of Pappu and he further reiterated that he had stated that on pole Government light was ONN and in the said light he had seen all the accused persons. It is clarified that in the fardbyan no such fact was disclosed by the informant which touches the credibility of this witness. His attention was also drawn to his fardbyan and in paragraph 13 of his cross-examination he stated that in his fardbyan he had stated that accused persons had stated that Hira Rai was looking after the case of Pappu and due to this reason he was killed. He further stated that in the fardbyan he had stated that while they were carrying Hira Rai to hospital all the eight accused persons started giving shot of firing and due to this they changed the route. He further stated that in the fardbyan he had stated that while they were carrying Hira Rai to hospital all the eight accused persons started giving shot of firing and due to this they changed the route. In paragraph 13 of cross-examination he further stated that in his fardbyan he had stated that subsequently he called for a cot and by way of changing route they rushed to Barh hospital. On examination of the fardbyan it is evident that no such fact was disclosed by this witness. In paragraph 14 of his cross -examination he further stated that of -course in the fardbyan he had stated that Hira Rai was his brother but he was his cousin brother. In paragraph 16 of the cross- examination he admitted that in the present trial either son, wife, father, uncle and cousin brother of Hira Rai was not a witness. In paragraph 18 of cross -examination he stated that the house of the Pappu Rai ( P.W. 1) was on the West -North side of the village and house of this witness was in the South -East and in between there were 10-15 houses. He further clarified that near the place of occurrence there were 7-8 houses of Yogi Rai (not examined), Ram Ekbal Rai ( not examined), Ramnandan Rai ( not examined ), Prabhu Rai ( not examined ), Manohar Rai [ not examined ] etc. In paragraph 16 of cross examination he clarified that witnesses i.e. P.W. 2-Biru Rai, P.W. 3/Dhananjay Rai, P.W. 6/Ramlagan Rai were residing by the side of the house of this witness. It is surprising that despite the fact that house of Pappu Yadav which was allegedly being demolished though was on the West- North side of the village none of the nearby residents had come forward to depose as witness rather the informant and the witnesses whose houses were on just opposite flank of the village after hearing sound of demolishing of house had reached to the place of occurrence and had claimed as if in their presence the deceased was given shot of firing and occurrence had taken place. In paragraph 25 of his cross- examination this witness has stated that one Mathura was his uncle and his uncle-Mathura had earlier lodged a criminal case against appellant -Rajendra Rai's father and others however he denied as to whether he was knowing that in the said case i.e. G.R. No. 883 of 1964 all the accused persons were acquitted and case was found false. In paragraph 26 of his cross -examination suggestion was given to the informant that this witness had given a pistol to Hira Rai [ deceased ] to keep and since he was not returning the same at 2.00 in the night on the same day this witness had gone to his house and demanded his pistol which Hira Rai had kept in his waist and he was not inclined to return regarding which scuffle had taken place in between informant and deceased and in the midst of scuffle accidentally firing was made and with a view to save himself he implicated all enemies of his family. He further denied the suggestion that conniving with the enemy of accused persons i.e. Pappu (P.W. 1) the present case was falsely lodged. 11. P.W. 1 Pappu Yadav is the person regarding whose house it was alleged that accused persons at the time of occurrence were demolishing and looting his articles. He too in his evidence has almost deposed like P.W. 7 (informant)/Karu Rai and he also gone to the extent of stating that in his presence all the eight accused persons after seeing Hira Rai (deceased) had exhorted to kill him and thereafter Rajendra Rai had given shot of firing. His attention was further drawn that he had not stated before the Police that while Karu and Santosh were lifting the injured Hira Rai on motorcycle for carrying him to hospital all the accused persons started indiscriminate firing. His attention was also drawn as if whether he had not stated before the police that near his house there was an electric pole on which electric bulb was ONN and in the said light accused persons were identified. This witness has also stated that near his house there were houses of Yogi Rai, Bhagwan Rai, Shibu Rai, Monarik Rai etc. however none of those persons were examined as prosecution witnesses. This witness has also stated that near his house there were houses of Yogi Rai, Bhagwan Rai, Shibu Rai, Monarik Rai etc. however none of those persons were examined as prosecution witnesses. It is true that though attention of this witness was drawn to his previous statement but contradictions were not taken at the time of examination of the Investigating Officer. However after going through the evidence of the Investigating Officer it appears that consolidately those facts were explained to the Investigating Officer as to whether such facts were stated by those witnesses or not. Almost in similar manner P.W. 2/Biru Rai , P.W. 3 - Dhananjay Rai and P.W.6/Ramlagan Prasad have deposed as if they were witnesses to the occurrence. All those witnesses are consistent that occurrence had taken place on 09-11-2009 at 4:30 AM. Biru Rai/P.W.2 has proved his signature on the fardbyan which was marked as Ext.1 and he proved signature of Karu Rai/P.W. 7 on the fardbyan. 12. P.W.4 /Dr. Wasimuddin on 09-11-2009 was posted as Medical Officer, Sub-divisional Hospital, Barh and he conducted post-mortem examination on the dead body of the deceased and he noticed the following facts:- "External:- Lacerated wound approx. 1 "x 1/2" x abdominal cavity deep on the left inguinal region (entry of wound). Margin was inverted and charring was around the wound Internal: Head-Skull- Intact Brain- Pale Neck- Intact Chest All ribs intact Lungs Pale Heart Right side full, left side empty. Abdomen Abdominal cavity was full with blood. Bullet was lodged in the right lumber region. Right kidney was lacerated. Intestine was ruptured. Stomach contained digested food. All visceras was pale except spleen. Limbs intact One bullet was preserved. Time since death was found to be within 12 hours Cause of death Accute circulatory failure due to shock of trauma on abdomen caused by fire arm injury such as rifle. The injury no. 1 was sufficient to cause death of the deceased." This witness also proved the post-mortem report which was marked as Ext. 2. 13. In this case evidence of P.W. 5/Dr. Siyaram Singh who had initially examined the injuries of the deceased virtually demolishes the entire prosecution case. The injury no. 1 was sufficient to cause death of the deceased." This witness also proved the post-mortem report which was marked as Ext. 2. 13. In this case evidence of P.W. 5/Dr. Siyaram Singh who had initially examined the injuries of the deceased virtually demolishes the entire prosecution case. This witness in his evidence has stated that on 09-11-2009 at 4:00 AM (morning) he had examined the injured (deceased) whereas it is consistent case of the prosecution that occurrence had taken place at 4:30 AM (morning) on the same day. Meaning thereby that the time of occurrence which has been set out by the prosecution appears to be not believable. 14. Sri Y.C. Verma, learned senior counsel assisted by Sri Sanjay Kumar Pandey, learned counsel for the appellants has emphatically argued that it appears that occurrence had taken place much earlier than the time alleged by the informant and none had seen the occurrence. Subsequently, the informant who was having animosity with the appellants conniving with one of the another accused i.e. P.W. 1/Pappu Yadav hatched a conspiracy for falsely implicating the appellants. This is the reason that even the informant during the evidence has developed a case contrary to the fardbyan itself and similarly other witnesses had come out as if the accused persons were identified in street light which was near the house of Pappu Yadav. 15. The Investigating Officer in this case is Mubarak Hussain who was examined as P.W. 8. In his evidence he stated that on 09-11-2009 he was posted as Officer In-Charge of Barh Police Station. He recorded fardbyan of the informant in the Sub divisional hospital, Barh. At the time of inspection of the place of occurrence the Investigating Officer had not noticed any stacking or scattered bricks at the place of occurrence whereas it was the case of prosecution that accused persons had firstly started demolishing the house of P.W. 1- Pappu Yadav and they were also looting articles. This also creates serious doubt on the prosecution case. The Investigating Officer had not found any live or fired cartridge at the place of occurrence whereas subsequently a case was developed by the prosecution side as if while the informant was trying to carry the injured on motorcycle to hospital indiscriminate firing was made by almost all the accused persons and about 10-15 shots were fired. The Investigating Officer had not found any live or fired cartridge at the place of occurrence whereas subsequently a case was developed by the prosecution side as if while the informant was trying to carry the injured on motorcycle to hospital indiscriminate firing was made by almost all the accused persons and about 10-15 shots were fired. In such situation in normal course the Investigating Officer would have found some fired cartridges at the place of occurrence. Nor any mark of firing was noticed either on the wall of nearby houses nor any cattle got any injuries though it is case of prosecution that at the place of occurrence there were cattles of other villagers. This also creates serious doubt on the prosecution case. It is surprising that though informant in his fardbyan has stated that deceased in injured condition was being treated in emergency ward and he was not in a position to speak during evidence P.W. 2 in paragraph 2 deposed that injured was carried on cot to Barh hospital from where after some treatment he was referred to P.M.C.H. and while the injured was being carried to Patna on way he died. In paragraph 4 of his evidence he further stated that in Barh hospital police arrived and daroga jee recorded fardbyan of Karu Rai (informant)/P.W.7. On perusal of the fardbyan it is evident that same was recorded in Barh Sub Divisional Hospital and formal F.I.R. indicates that Section 302 of the I.P.C. was added subsequently on 12.11.2009 whereas F.I.R. was lodged on 09.11.2009 under Section 307 /34 of the I.P.C. and Section 27 of the Arms Act. This also creates serious doubt on the prosecution case read with the evidence of the doctor who had initially treated the injured (deceased) and he in categorical term has stated that he examined the injured at 4.00 A.M. ( morning ) on the date of occurrence. On overall examination of entire evidence we are of the considered opinion that prosecution case appears to be not believable nor prosecution has been able to establish its case beyond all reasonable doubts. Sessions Trial No. 350 of 2011 [ Cr. Appeal (D.B.) No. 371 of 2013 & Cr. Appeal (D.B.) No. 209 of 2013 ] 16. This Sessions Trial arise out of the same occurrence. Two appellants in the aforesaid two Appeals were jointly tried in Sessions Trial No. 350 of 2011. Sessions Trial No. 350 of 2011 [ Cr. Appeal (D.B.) No. 371 of 2013 & Cr. Appeal (D.B.) No. 209 of 2013 ] 16. This Sessions Trial arise out of the same occurrence. Two appellants in the aforesaid two Appeals were jointly tried in Sessions Trial No. 350 of 2011. In this trial prosecution to establish its case had examined seven witnesses. Only one witness i.e. Ramlagan Prasad who was examined as P.W. 6 in the connecting trial i.e. in Sessions Trial No. 1149 of 2010 was not examined during the trial of the present case. In this trial the informant was examined as P.W. 4 and Biru Rai who was P.W. 2 in earlier trial was examined as P.W. 1. Pappu Yadav who was P.W. 1 in earlier trial was examined as P.W. 2. Dr. Wasimuddin who conducted post- mortem examination on the dead body of the deceased was examined as P.W. 5 whereas Dr. Siyaram Singh who had initially examined the injuries of the deceased was examined as P.W. 5A and Investigating Officer in the present case namely Mubarak Hussain was examined as P.W. 6. 17. The informant - P.W. 4 (Karu Rai) in his evidence i.e. examination -in- chief has deposed almost in similar manner like his evidence in Sessions Trial No. 1149 of 2010. He proved the certified copy of the fardbyan which was marked as Ext. 1. He further proved certified copy of inquest report marked as Ext. 2. Both the documents were already got earlier exhibited in Sessions Trial No. 1149 of 2010. He further proved the protest petition as Ext. 3 which was marked as Ext. 5 in Sessions Trial No. 1149 of 2010 however in cross -examination in paragraph 13 he stated that he was not recollecting as to what he had stated in his fardbyan however he stated that fardbyan was recorded on 09.11.2009 in the morning at 7.30 A.M. and in this trial also he developed the case regarding street light as if source of identification. In paragraph 16 of his cross -examination he stated that from the place of occurrence police station was about 7-8 K.M. away. He had carried injured - Hira on cot to hospital. While carrying besides him there were 5-6 other persons also. They were moving on foot. In paragraph 16 of his cross -examination he stated that from the place of occurrence police station was about 7-8 K.M. away. He had carried injured - Hira on cot to hospital. While carrying besides him there were 5-6 other persons also. They were moving on foot. He stated that he had moved from the place of occurrence at 5.00 in the morning and reached hospital at 6.30 A.M. (morning) where doctor had treated the injured. He did not reach Patna. In paragraph -18 of the cross examination he stated that except Pappu/P.W. 2 none of his family members were witness in the said case. He further stated in paragraph 23 of his cross -examination that while the house of Pappu was demolished about 250-300 bricks were scattered there. He further stated that at the place of occurrence police had not prepared any paper. He further accepted that in the said case all the witnesses were his close relatives and bhai and gotiya. This witness was given suggestion which was denied that he himself had given pistol to Hira [deceased] for keeping the same which was not being returned by him and on 08.09.2009 in the night in between 12.00 & 2.00 P.M. he met with Hira at that very time he had kept pistol on his waist. He further denied that since Hira did not return the pistol scuffle took place in between him and Hira and during such scuffle shot of firing was made by pistol which hit Hira Rai. This suggestion was denied. 18. P.W. 1 / Biru Rai in this trial also deposed like his evidence in Sessions Trial No. 1149 of 2010. He proved his signature on the fardbyan and also signature on inquest report. In cross-examination in paragraph 4 he stated that his statement was recorded in hospital and police station. Firstly Karu (P.W. 4) put his signature in hospital and he signed on the fardbyan in police station. Karu ( P.W.4) signed at 6.00 in the morning whereas he put his signature at 7.00 A.M. This again creates serious doubt on the prosecution case. Though this witness is a witness to the fardbyan which was supposedly recorded in Barh Sub Divisional Hospital but he put his signature on fardbyan in Police Station and there is variance in time of signature in between informant and this witness on fardbyan. Though this witness is a witness to the fardbyan which was supposedly recorded in Barh Sub Divisional Hospital but he put his signature on fardbyan in Police Station and there is variance in time of signature in between informant and this witness on fardbyan. He too in paragraph 9 of his cross examination deposed that in the said case all the witnesses were family members and gotiya of informant Karu Rai (P.W. 4). 19. P.W. 2/Pappu Yadav is the person whose house was alleged to be demolished by the accused persons before the occurrence of firing. This witness deposed that occurrence had taken place on 09.11.2009 at 4-4.30 A.M. in the morning and he was at his house. On hearing hulla witnesses arrived there. This witness deposed that accused persons were demolishing his house disclosed name of all the eight accused persons. This witness further deposed in paragraph 1 that thereafter Rajendra ( appellant ) said that Hira Rai ( deceased ) was looking after the Title Suit of this witness ( Pappu Yadav/P.W. 2 ) and as such he must be killed and thereafter Rajendra Rai fired from his rifle which hit Hira Rai in between stomach and left thigh. He tried to carry the injured to hospital on motorcycle. Then accused persons started indiscriminate firing and subsequently injured- Hira Rai was carried on cot to hospital. In Barh hospital medicine and bandage was provided and he was referred to P.M.C.H. and the son of Hira Rai [injured] got a vehicle and proceeded to carry Hira Rai to P.M.C.H. but near Athmalgola he died. The reason for the occurrence this witness explained was land dispute vide Title Suit No. 6 of 2000 . This witness in paragraph 11 of his cross- examination stated that at the time of occurrence wife of Hira Rai as well as son - Manoj were in house. In paragraph 12 of his cross -examination he further stated that son of Hira Rai namely: Manoj was along with his father and was present while carrying Hira (injured) to hospital. He was all along present with the injured. He further clarified that Manoj had carried Hira Rai (injured) to P.M.C.H. however he was not a witness in the case. This again creates serious doubt on the prosecution case that son of the deceased was not examined as witness in the present case. He was all along present with the injured. He further clarified that Manoj had carried Hira Rai (injured) to P.M.C.H. however he was not a witness in the case. This again creates serious doubt on the prosecution case that son of the deceased was not examined as witness in the present case. Further this witness in paragraph 14 of cross examination has stated that at the time of occurrence his wife also had come out from the house with this witness namely: Pappu Yadav whose house was being demolished by the accused. His wife has also not been examined as a witness in the present case. In paragraph 19 of his cross examination he stated that indiscriminate firing was made however none of the shots either hit animals, wall or any person. 20. P.W. 3/Dhananjay Rai in his examination in chief has also stated like P.W. 1 and P.W. 2 however in paragraph 6 of his cross- examination he deposed that witnesses and informant of the case were residing in the Eastern Tola of the village whereas house of Pappu Yadav/P.W. 2 which is the place of occurrence was on the West -North portion of the village. In between there were houses of 100 of people however in the case none of the witnesses from nearby area of the place of occurrence were examined as witness in support of the prosecution. 21. P.W. 5/Dr. Wasimuddin had conducted postmortem examination on the dead body of the deceased and he deposed in similar manner like in Sessions Trial No. 1149 of 2010. 22. Similarly P.W. 5A - Dr. Siyaram Singh who examined the injured [deceased] stated that he examined the injuries of the injured [ Hira Rai ] on the date of occurrence at 4.00 in the morning whereas all the witnesses have deposed as if occurrence had taken place at 4.30 A.M. This fact itself demolishes the entire prosecution case and as such we are in the agreement with the submission of Sri Y.C. Verma, learned senior counsel for the appellants that occurrence must had taken place much earlier than the time indicated by the informant and none had seen the actual occurrence. 23. Mubarak Hussain (P.W. 6) is the Investigating Officer of the case and he has proved fardbyan which was marked as Ext., inquest report [Ext. 2], injury slip of Hira Rai [Ext. 23. Mubarak Hussain (P.W. 6) is the Investigating Officer of the case and he has proved fardbyan which was marked as Ext., inquest report [Ext. 2], injury slip of Hira Rai [Ext. A] and in paragraph 13 of his cross- examination he stated that none of the witnesses had disclosed regarding electric pole light in their statement recorded under Section 161 of the Cr.P.C. In the evidence of Investigating Officer it has been noticed that this witness has not found any apparent material to show as if house of Pappu Yadav was demolished or not. 24. Sri Y.C. Verma, learned senior counsel assisted by Sri Sanjay Kumar Pandey, learned counsel for the appellants has argued that on examination of evidences in both the trials it is evident that prosecution has not been able to establish its case beyond all reasonable doubts. He submits that evidence of the doctor namely-Dr. Siyaram Singh who was posted in the Sub Divisional Hospital, Barh demolishes the entire prosecution case. This witness in categorical term has stated that he had examined the injured [deceased] at 4.00 A.M. in morning on 09.11.2009 whereas in the fardbyan which was recorded at 6.30 Hours on 09.11.2009 the time of occurrence has been given as 4.30 Hours [ morning ] and similarly all the witnesses who had supported the prosecution case deposed as if occurrence had taken place at 4.30 { morning }. He has further argued that it is a peculiar case in which though prosecution has come out with a case that house of witness-Pappu Yadav was being demolished how the injured, informant and witnesses who were residing on different corners of the village in odd time i.e. in winter time at 4.30 A.M. reached to the place of occurrence and saw the same as if house of Pappu Yadav was being demolished and several bricks were scattered. Pappu Yadav though has stated that at that time his wife was also there, his wife has not come forward to depose in the present case. Though the injured died on way while he was being carried by his son -Manoj, his son -Manoj has not been examined as a prosecution witness. None of the family members of the deceased has come forward to depose in the present case. This also creates serious doubt. Though the injured died on way while he was being carried by his son -Manoj, his son -Manoj has not been examined as a prosecution witness. None of the family members of the deceased has come forward to depose in the present case. This also creates serious doubt. The persons who were residing in houses situated near the house of Pappu Yadav also had not come forward to support the prosecution case. The development made by the witnesses by way of introducing street light also creates doubt on the prosecution case. 25. On overall examination of the evidences in both the trials we are of the considered opinion that prosecution case appears to be doubtful and not believable. On examination of evidences in both the trials, we are of the considered opinion that prosecution has miserably failed to establish its case beyond all reasonable doubts, and as such, it is a fit case for interference with the judgment of conviction and sentence. Accordingly, judgment of conviction dated: 12.02.2013 & 08.02.2013 and order of sentence dated: 22.02.2013, 18.02.2013 as well as 16.02.2013 respectively passed in Sessions Trial No. 1149 of 2010 and Sessions Trial No. 350 of 2011 [arising out of same F.I.R. i.e. Barh P.S. Case No. 338 of 2009] passed by Sri Deo Nandan Prasad Singh, learned Adhoc Additional District and Sessions Judge I, Barh, Patna are hereby set aside and all the three Appeals are allowed. 26. Except appellant/Rajendra Rai in Cr. Appeal (D.B.) No. 371 of 2013 all other appellants are on bail. Accordingly, they are hereby discharged from liability of their bail bonds. 27. Since the judgment of conviction and sentence has been set aside, it is hereby directed to release Rajendra Rai [appellant in Cr. Appeal (D.B.) No. 371 of 2013] forthwith, if not required in any other case. 28. All the three Appeals are allowed.