JUDGMENT : RAKESH KUMAR, J. Appellants in all the aforesaid three appeals were tried together and were convicted & sentenced by common judgment and as such, all the aforesaid three appeals were heard together and are being disposed of by this common judgment. 2. All the appellants by judgment dated 6th September, 2012 were held guilty and convicted for commission of offence under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as ‘I.P.C.’) and Section 27 of the Arms Act, 1959 (hereinafter referred to as ‘Arms Act’). By order dated 15-09-2012, all the aforesaid appellants for commission of offence under Section 302 of the I.P.C. were sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 10,000/- (ten thousand) each. In default of payment, they were directed to further undergo simple imprisonment for six months. They were awarded rigorous imprisonment for three years for commission of offence under Section 27(i) of the Arms Act and to pay a fine of Rs. 2,000/- (two thousand) each and in default of payment, they were directed to undergo imprisonment for two months. All the sentences were directed to run concurrently. The appellants were convicted and sentenced in Sessions Trial No. 753 of 2009/Trial No. 55 of 2009 by Sri Jitendra Nath Singh, learned Adhoc Additional Sessions Judge 4th, Araria (hereinafter referred to as ‘Trial Judge’). 3. Short fact of the case is that on 15-01-2007 at 4:30 PM, Sub-Inspector of Police Sri M.K.Sinha (P.W.10) of Raniganj Police Station recorded fardbeyan of Chandan Kumar Yadav (P.W.4) S/o Late Jagdish Prasad Yadav of village Koshikapur, Police Station – Raniganj, District – Araria. The fardbeyan was recorded near Kajradhar on metal road. In the fardbeyan, it was disclosed by the informant that he and his other family members, who were accused in Raniganj P.S. Case No. 5 of 2005 registered for offence under Sections 147, 148, 149, 324, 302, 342 of the I.P.C. and Section 27 of the Arms Act, were on bail. In the said sessions trial, 15.01.2007 was the date fixed for evidence. In the said case, for attending date, he with his brother Awadhesh Yadav (deceased) and Ashok Yadav (P.W.1) on one motorcycle had gone to Araria. Prior to him, Anil Yadav (deceased), Rajendra Yadav (deceased) and Maheshwari Yadav (P.W.2) had already gone to Araria court. In the said sessions trial, 15.01.2007 was the date fixed for evidence. In the said case, for attending date, he with his brother Awadhesh Yadav (deceased) and Ashok Yadav (P.W.1) on one motorcycle had gone to Araria. Prior to him, Anil Yadav (deceased), Rajendra Yadav (deceased) and Maheshwari Yadav (P.W.2) had already gone to Araria court. He, Awadhesh Yadav and Ashok Yadav belatedly reached Araria and as such, all the three due to delay took time in the court proceeding. From Araria, about 3:00 PM in the evening, they were ready to return to village. It was red colour T.V.S. motorcycle, on which, Anil Yadav (deceased), Awadhesh Yadav (deceased) and Rajendra Yadav (deceased), all resident of village Koshikapur, P.S. Raniganj, District – Araria sat and it was being driven by Anil Yadav. In the middle, his brother Awadhesh and on back Rajendra @ Rajo sat. The second motorcycle i.e. Rajdoot motorcycle, on which, the informant sat for driving, in the middle, Maheshwari Yadav (P.W.2) and in back, Ashok Yadav (P.W.1) sat and at 3:00 PM in the evening, they proceeded to return for their village. About 100 yards ahead, Anil Yadav was moving. About 4:00 PM in the evening, when Anil Yadav (deceased) on motorcycle reached on metal road opposite of Kajra Police Station, the informant saw that five motorcycles had blocked the road and on road, (1) Sushil Yadav (appellant no. 1 in Cr.App. DB No. 1049/12), (2) Sunil Yadav (appellant no. 2 in Cr.App. DB No. 1049/12), (3) Amardip Yadav (appellant no. 2 in Cr.App. DB No. 1077/12), (4) Dilip Yadav (acquitted), (5) Sushil Yadav (sole appellant in Cr.App. DB No. 1074/12), (6) Dinesh Yadav, (7) Tej Narayan Yadav, (8) Jagat Narayan Yadav, (9) Nandlal Yadav, (10) Uday Chand Yadav, (11) Naresh Yadav, (12) Damodar Mandal, all acquitted, (13) Pawan Yadav (appellant no. 1 in Cr. App. DB No. 1077/12) and two unknown persons jointly had blocked the road. While Anil Yadav, his brother Awadhesh Yadav and Rajendra Yadav reached nearer to them, Pawan Yadav and Amardip Yadav (appellant no. 1 and 2 respectively in Cr.App. DB No. 1077/12) taking out their pistol gave one shot of firing each on the chest of Anil Yadav, whereby, Anil Yadav with motorcycle fell down on the road and his brother Awadhesh Yadav and cousin uncle Rajendra Yadav, with a view to save their life, proceeded towards southern side. 1 and 2 respectively in Cr.App. DB No. 1077/12) taking out their pistol gave one shot of firing each on the chest of Anil Yadav, whereby, Anil Yadav with motorcycle fell down on the road and his brother Awadhesh Yadav and cousin uncle Rajendra Yadav, with a view to save their life, proceeded towards southern side. After chasing Rajendra Yadav (deceased), Sushil Yadav (sole appellant in Cr.App. DB No. 1074/12) fired one shot from his pistol on back side of Rajendra Yadav, whereby Rajendra Yadav fell down at the place of occurrence and died. Informant further stated that his brother Awadhesh Yadav, after chasing, was given one shot of firing each by Sushil Yadav (appellant no. 1 in Cr.App. DB No. 1049/12) and Sunil Yadav (appellant no. 2 in Cr.App. DB No. 1049/12) on the chest and mouth of Awadhesh Yadav and he also died at the place of occurrence itself. Thereafter, all the accused persons started firing upon informant also, however; the informant and others saving their life fled away by motorcycle towards eastern side. The reason for murder was explained as old animosity. The informant further stated that Jaichand Yadav S/o Nandlal Yadav, resident of Koshikapur was present in jail in connection with Raniganj P.S. Case No. 247 of 2003, in which, he had shot him. He stated that Jaichand Yadav in a deep rooted conspiracy from jail itself had got murdered aforesaid persons. The said fardbeyan was read over to him and after finding it correct, P.W.4 (informant) put his signature on the fardbeyan. The fardbeyan was also signed by one Ashok Yadav (P.W.1) as witness to the fardbeyan. 4. On the basis of fardbeyan of Chandan Kumar Yadav (P.W.4), on 15-01-2007 at about 9:00 PM, a formal F.I.R., vide Raniganj P.S. Case No. 11 of 2007, was registered for offence under Sections 302/307/120B/34 of the I.P.C. and Section 27 of the Arms Act against: 1. Sushil Yadav (appellant no. 1 in Cr.Appeal DB No. 1049/12) 2. Sunil Yadav, both sons of late Suryanand Yadav (appellant no. 2 in Cr.Appeal DB No. 1049/12) 3. Amardip Yadav (appellant no. 2 in Cr.Appeal DB No. 1077/12) 4. Dilip Yadav 5. Sushil Yadav (sole appellant in Cr.Appeal DB No. 1049/12) 6. Dinesh Yadav 7. Tej Narayan Yadav 8. Jagat Narayan Yadav 9. Nandlal Yadav 10. Uday Chand Yadav 11. Naresh Yadav 12. Damodar Yadav 13. Pawan Yadav (appellant no. 2 in Cr.Appeal DB No. 1049/12) 3. Amardip Yadav (appellant no. 2 in Cr.Appeal DB No. 1077/12) 4. Dilip Yadav 5. Sushil Yadav (sole appellant in Cr.Appeal DB No. 1049/12) 6. Dinesh Yadav 7. Tej Narayan Yadav 8. Jagat Narayan Yadav 9. Nandlal Yadav 10. Uday Chand Yadav 11. Naresh Yadav 12. Damodar Yadav 13. Pawan Yadav (appellant no. 1 in Cr.Appeal DB No.1077/12) and two other unknown accused person. 5. After investigation, on 08-04-2007, charge sheet was submitted against 1. Sushil Yadav (appellant in Cr.App.DB No. 1074/12), 2. Jaychand Yadav (non-F.I.R. named accused) and 3. Shashi Yadav (non-F.I.R. named accused). Subsequently, 1st supplementary charge sheet was submitted on 19-07-2007 against 1. Tej Narayan Yadav, 2. Jagat Narayan Yadav, 3. Naresh Yadav, 4. Damodar Mandal, 5. Uday Chand Mandal, 6. Dinesh Yadav and 7. Dilip Yadav and further investigation was kept pending. On 28-10-2007, 2nd supplementary charge sheet was submitted only against Pawan Yadav (appellant no. 1 in Cr.App.DB No. 1077/12) and still investigation was pending and finally, on 31-12-2007, 3rd supplementary charge sheet was submitted against 1. Amardeep Yadav (appellant no. 2 in Cr.App.DB No. 1077/12) and 2. Nandlal Yadav, whereas, accusation against Sushil Yadav and Sunil Yadav (both appellant in Cr.App.DB No. 1049/12) was not found true. On 30-07-2008, learned Magistrate took cognizance of offence against all the charge sheeted accused persons and against also two accused persons, who were not forwarded in the charge sheet as accused. On 17-08-2009, the case was committed to the court of sessions and as such, it was numbered as Sessions Trial No. 753 of 2009. In the case, on 22-12-2009, charge under Sections 302, 307 and 120B of the I.P.C. and Section 27 of the Arms Act was framed against 15 (fifteen) accused persons. 6. During trial, to prove its case on behalf of the prosecution, altogether 10 witnesses were examined, who are: “P.W.1 Ashok Kumar Yadav, brother of informant, P.W.2 Maheshwari Yadav, uncle of informant, P.W.3 Gajendra Yadav, father-in-law of deceased Anil Yadav and P.W.4 Chandan Kumar Yadav (informant) All were examined as eye-witnesses to the occurrence. P.W.5 Kundan Kumar Yadav S/o Rajo Yadav (deceased) was examined as formal witness, who was witness to inquest and seizure list. P.W.9 Umanand Yadav, cousin uncle of informant was examined as hearsay witness. P.W.6 Dr. Om Prakash, P.W.7 Dr. Satya Vardhan and P.W.8 Dr. P.W.5 Kundan Kumar Yadav S/o Rajo Yadav (deceased) was examined as formal witness, who was witness to inquest and seizure list. P.W.9 Umanand Yadav, cousin uncle of informant was examined as hearsay witness. P.W.6 Dr. Om Prakash, P.W.7 Dr. Satya Vardhan and P.W.8 Dr. Gopal Prasad were associated with the post-mortem examination of all the three deceased and P.W.10 Mahendra Kumar Sinha had recorded fardbeyan and also was investigating officer of the case.” 7. After closure of the prosecution case, statement of accused persons under Section 313 of the Code of Criminal Procedure, 1973 was recorded, in which, they claimed to be innocent and also claimed to examine defence witnesses. To disapprove the prosecution case from the defence side also eight witnesses were examined namely: D.W.1 Chandan Kumar Sah, D.W.2 Ashok Kumar, D.W.3 Sanjai Kumar Rai, D.W.4 Deo Narayan Mandal, D.W.5 Bimal Yadav, D.W.6 Sushil Yadav, D.W.7 Domi Mandal and D.W.8 Panchalal Mandal. 8. After placing entire evidence, at the very outset, Sri Kanhaiya Prasad Singh, learned senior counsel, who has appeared on behalf of appellants in Cr.Appeal(DB) No. 1077/12 and Cr.Appeal (DB) No. 1074/12, submits that of course during the trial from defence side, defence witnesses were examined, but he was not placing any reliance on the defence evidence, rather on the basis of prosecution evidence itself, he has argued that prosecution has not established its case beyond all reasonable doubt and as such, appellants were required to be acquitted by way of extending benefit of doubt. Sri Singh submits that prosecution witnesses appear to be not truthful. He emphasizes that during trial, witnesses i.e. P.W.1 Ashok Kumar Yadav, P.W.2 Maheshwari Yadav and P.W.4 Chandan Kumar Yadav (informant), who had claimed to be eye-witnesses, deposed that fardbeyan was recorded in the police station at 5:00 PM, whereas, the investigating officer/P.W.10 Mahendra Kumar Sinha deposed that fardbeyan was recorded at the place of occurrence and in the fardbeyan also, it has been indicated, as if, fardbeyan was recorded at 4:30 PM on the date of occurrence at the place of occurrence itself. According to Sri Singh, this contradiction in between the evidence of investigating officer and so called eye-witnesses categorically establishes that none had seen the occurrence and subsequently, a story in a planned manner was concocted, in which, the prosecution side, with a view to weaken the case against informant side, has plotted the present case. According to Sri Singh, this contradiction in between the evidence of investigating officer and so called eye-witnesses categorically establishes that none had seen the occurrence and subsequently, a story in a planned manner was concocted, in which, the prosecution side, with a view to weaken the case against informant side, has plotted the present case. He submits that from the fardbeyan itself, it is evident that the informant and deceased were accused in a sessions trial and on that day, they had gone to attend sessions trial in the session court at Araria. Sri Singh has categorically stated that informant (P.W.4) in paragraph - 2 of his evidence, P.W.1 in paragraph - 6 and P.W.2 in paragraph - 1 have stated that fardbeyan was recorded in the police station at 5:00 PM, whereas the investigating officer/P.W.10 in paragraph - 11 stated that P.W.1, 2 and 4 had not came to the police station. The investigating officer/P.W.10 has deposed that he got secret information on phone regarding the occurrence and only thereafter, he visited the place of occurrence and recorded fardbeyan at the place of occurrence itself. According to Sri Singh, this is vital contradiction and on this score alone, the entire prosecution case may be termed as doubtful. 9. Sri Kanhaiya Prasad Singh, learned senior counsel further submits that evidence of P.W.5 Kundan Kumar Yadav S/o deceased Rajo Yadav is itself sufficient to prove that none had seen the occurrence, since this witnesses in paragraph 3 has categorically deposed that while he reached place of occurrence, he saw only one person namely Bipin Kumar (not examined) and police personnel alongwith other unknown persons. Sri Singh emphasizes that once son of the deceased Rajo Yadav i.e. P.W.5 in clear term states that after the occurrence, while he reached, he could only saw the police personnel and other unknown persons, certainly presence of so called eye-witnesses i.e. P.W.1, P.W.2, P.W.3 and P.W.4 appears to be doubtful and their presence may not be believed as true. 10. Sri Singh has further tried to persuade the Court that the investigating officer in his evidence in paragraph 17 states that all the three dead bodies were found on much distance from each other. 10. Sri Singh has further tried to persuade the Court that the investigating officer in his evidence in paragraph 17 states that all the three dead bodies were found on much distance from each other. From the dead body of Awadhesh Yadav, dead body of Rajendra Yadav was lying about 21-25 feet away and from the dead body of Awadhesh Yadav, dead body of Anil Yadav was found about 43 feet away, whereas, all the witnesses, who have claimed to be eye-witnesses, have deposed, as if, all the three dead bodies were lying in between 1½ to 2 hands distance. He further submits that it was case of the prosecution that while Anil Yadav with other two deceased were moving on motorcycle, he was given one shot each by two of the appellants on his chest and he fell down with motorcycle itself, however; on the person of either of the deceased, no scratch injury was found, save and except injury of fire-arm was found on their person. According to Sri Singh, in a situation, while three deceased were moving on motorcycle and the person, who was driving the motorcycle, was fired two shots and he fell down on a metal road, certainly there was a possibility to have some scratches on the person of either of the deceased, but no such scratches, other than fire-arm injury, were found on the person of either of the three bodies. According to Sri Singh, the manner of the occurrence has not been established by the prosecution. In view of aforesaid contradictions in the evidence, Sri Kanhaiya Prasad Singh, learned senior counsel has argued that prosecution has not been able to establish its case beyond all reasonable doubt and as such, appellants are entitled to be given benefit of doubt. 11. Sri Ajay Kumar Thakur, learned counsel for the appellants in Cr.Appeal (DB) No. 1049/12 has firstly argued that time of recording fardbeyan i.e. 4:30 PM appears to be doubtful, due to the reason that P.W.1 in paragraph 6 of his evidence has stated that for giving information to the police station, he reached at 5:00 PM. He stated that from the place of occurrence to police station, it took half an hour. He stated that from the place of occurrence to police station, it took half an hour. Similarly, P.W.2 in paragraph 1 has stated that from the place of occurrence to police station, it took half an hour and from police station to place of occurrence, it took about 45 minutes. Taking clue from aforesaid evidence, Sri Thakur tried to persuade the court that the fardbeyan was actually not recorded at the time, as it has been depicted in the fardbeyan. According to Sri Thakur, it appears that none had seen the occurrence and much after the occurrence, police was informed and belatedly fardbeyan was recorded. He further submits that though, it was case of prosecution that informant, deceased and others on the date of occurrence had gone to the court for attending proceeding in S.T. No. 404/05, none of the witnesses could specifically state as to whether they actually attended court proceeding or not. By way of referring to evidence of P.W.1, he submits that this witness has stated that court proceeding on the date started at about 2:30 PM, but in the evidence of informant as well as fact disclosed in the fardbeyan, it has come that informant (P.W.4) and P.W.1 reached court belatedly and this was the reason that they took time in the case. He further submits that P.W.2 in his evidence had stated that all of them (six) reached court at 11:00 AM on the date of occurrence, whereas, as per fardbeyan, P.W.4 (informant) and P.W.1 reached court belatedly. P.W.1 in his evidence stated that on the said date, evidence took 1½ hour to 2 hours, whereas P.W.4 informant in his evidence stated that on the date, since it was late, he took time. He further submits that in the evidence, P.W.4 has stated that on the date in the morning at 8:00 AM, he proceeded for court, however in the fardbeyan, he stated that he reached the court belatedly. This was the reason that he took time. On the basis of contradictions in the aforesaid evidences regarding time of proceeding in Sessions Trial No. 401 of 2005 on the date of occurrence, Sri Thakur, learned counsel has argued that none of the witnesses had seen the occurrence and subsequently, a story was developed, as if, four witnesses have seen the occurrence. On the basis of contradictions in the aforesaid evidences regarding time of proceeding in Sessions Trial No. 401 of 2005 on the date of occurrence, Sri Thakur, learned counsel has argued that none of the witnesses had seen the occurrence and subsequently, a story was developed, as if, four witnesses have seen the occurrence. According to Sri Thakur, the evidence of either of the so called eye-witnesses is not believable. Sri Thakur has also argued that the prosecution subsequently developed a story, as if, P.W.3 Gajendra Yadav, father-in-law of one of the deceased Anil Yadav was also coming with informant and deceased and he has also come forward as eye-witness to the occurrence, whereas, in the evidence of other witnesses, this fact has not come as to whether P.W.3 was also with them or not. He further submits that P.W.9 Umanand Yadav, who is the hearsay witness, in his evidence has stated that in S.T. No. 401 of 2005, evidence started from 12:00 noon and it concluded on 12:30 PM. Sri Thakur has also argued that the prosecution with oblique motive has not brought on record the dead body challan nor the person, who carried the dead body to the hospital, was got examined by the prosecution. According to Sri Thakur, non-mentioning of the F.I.R. number in the post-mortem examination report suggests that the fardbeyan and F.I.R. was prepared after the post-mortem examination of all the three dead bodies and in a designed manner, a story was cooked up, as if, the appellants were involved in the crime and this is the reason that in the post-mortem examination report, F.I.R. number has not been shown. Sri Thakur has also argued that evidence of P.W.5 Kundan Kumar Yadav S/o deceased Rajo Yadav suggests that at the time of occurrence, P.W.1 to P.W.4, who had claimed to be eye-witnesses, were not present. He further submits that the prosecution case appears to be doubtful due to the reason that P.W.1, P.W.2, P.W.3 and P.W.4 in their evidence have stated that when Darogaji arrived at the place of occurrence, all the three dead bodies were loaded on a tractor and they were carried to police station, whereas, the investigating officer/P.W.10 in paragraph 3 has stated that inquest reports in respect of three dead bodies were prepared at the place of occurrence and thereafter, it was directly sent to Araria Hospital through chowkidar for post-mortem. In paragraph 30 of his evidence, the investigating officer has categorically stated that dead bodies were sent from place of occurrence to Sadar Hospital, Araria. He stated that since there was non-availability of the vehicle, all the three dead bodies were left at the place of occurrence itself for whole night, whereas, P.W.1, 2, 3 and 4 have stated that dead bodies on the date of occurrence itself were brought through tractor to the police station. Sri Ajay Thakur, learned counsel has further stated that the place of occurrence appears to be doubtful. He submits that though, it was case of prosecution that Anil Yadav and two other deceased while moving on motorcycle were shot at by the accused from the close range and thereafter they fell down, it has been argued that in such situation, once a motorcycle with its rider had fallen on metal road, there was some possibility of damage in the said motorcycle as well as scratches on the person of the rider or occupants of the motorcycle, but neither motorcycle was damaged nor any scratches or other wound other than fire-arm wound was found on the person of three deceased. On aforesaid ground, it has been argued that the prosecution case appears to be doubtful and as such, by way of extending benefit of doubt, the appellants are required to be acquitted. 12. Sri Ajay Mishra, learned Addl. Public Prosecutor, opposing aforesaid appeals, has argued that it is consistent case of the prosecution that occurrence was witnessed by at least four eye-witnesses and all the four witnesses have categorically deposed as to how and in which manner three persons were intercepted by accused persons and one-by-one all the three persons were killed by gun shot injury. According to Sri Mishra, the oral evidence has also been corroborated by the medical evidence. He submits that the injuries, which were mentioned in the fardbeyan, were corroborated in the post-mortem examination report as well as in the evidence of eye-witnesses. Sri Mishra has argued that it is a case of triple murder, in which, there is direct evidence and as such, there is no reason for interference with the judgment of conviction and sentence. 13. Sri Mishra has argued that it is a case of triple murder, in which, there is direct evidence and as such, there is no reason for interference with the judgment of conviction and sentence. 13. Besides hearing learned counsel for the parties, we have also minutely examined entire evidence, both oral and documentary evidence and after going through the same, we are of the opinion that certainly there are some serious doubts on the prosecution case. Before coming to the conclusion, it would be necessary to cursorily refer some important evidences. 14. P.W.4 Chandan Kumar Yadav, who is the informant of the case and also has claimed to be eye-witness to the occurrence, in his evidence, deposed that the said case was registered on his statement and he is the informant of Raniganj P.S. Case No. 11 of 2007. This witness proved his signature on the fardbeyan, which was marked as Ext. 1. He also proved signature of Ashok Kumar Yadav (P.W.1) on the fardbeyan, which was marked as Ext. 1/1. In paragraph – 2 of his evidence, he deposed that on 15-01-2007 he had come to attend Sessions Trial No. 401 of 2005. Anil Yadav (deceased), Rajo Yadav (deceased), Mahesh Yadav (P.W.2), Awadhesh Yadav (deceased) and Ashok Yadav (P.W.1) all were with him. After attending the date, Awadhesh Yadav, Anil Yadav and Rajo Yadav, all three were on one motorcycle, which was driven by Anil Yadav. On second motorcycle, which was Rajdoot motorcycle, he, Mahesh and Ashok were there. After attending the said case, all of them moved from court to their residence. When they reached near Kajradhar, Anil Yadav was ahead of him about 15-20 hands. He saw that five motorcycles had blocked the road. Anil Yadav was stopped by Amardip Yadav (appellant no. 2 in Cr.App.DB No. 1077/12) and Pawan Yadav (appellant no. 1 in Cr.App.DB No. 1077/12) and both of them gave one shot each on the chest of Anil Yadav, whereby all the three occupants of the motorcycle fell down. Rajendra and Awadhesh, with a view to save their life, ran towards southern side, then Sushil S/o Vidyanand (appellant in Cr.App.DB No. 1074/12) fired on him, which hit him and he fell down. Awadhesh Yadav fled towards southern side, however; he was given shot of firing by Sushil Yadav (appellant no. Rajendra and Awadhesh, with a view to save their life, ran towards southern side, then Sushil S/o Vidyanand (appellant in Cr.App.DB No. 1074/12) fired on him, which hit him and he fell down. Awadhesh Yadav fled towards southern side, however; he was given shot of firing by Sushil Yadav (appellant no. 1 in Cr.App.DB No. 1049/12), which hit on his chest and one another firing was made by Sunil Yadav (appellant no. 2 in Cr.App.DB No. 1049/12), which hit on his mouth. Awadhesh also after getting fire-arm injury fell down. The informant was behind Anil and others and thereafter, accused persons with a view to kill them also fired upon him however, he and others fled away and came to the police station and he gave information to the Bada Babu (Sub-Inspector of Police) and F.I.R. was recorded there itself. Thereafter, Bada Babu (S.I.) with others came to Kajradhar i.e. place of occurrence and from there, on a tractor, dead-bodies of Awadhesh, Rajendra and Anil Yadav were carried to the police station. On the said tractor, motorcycle was also loaded. On the next date, dead-bodies were send for post-mortem to Araria. He further deposed that from the place of occurrence, police seized one motorcycle and also blood soaked soil, on which, Kundan (P.W.5) and Bipin (not examined) put their signature at the place of occurrence itself. In paragraph 6 of his cross-examination, he reiterated that his fardbeyan was recorded by Darogaji (S.I.) in the police station itself and thereafter, F.I.R. was lodged. At the police station itself, Darogaji obtained his signature as well as signature of Ashok Yadav. In paragraph 7 of his cross-examination, he stated that he was accused in Sessions Trial No. 401 of 2005 relating to murder. The said case was instituted by Sushil Kumar (appellant), which was lodged against his three brothers i.e. deceased, Ashok Kumar Yadav (P.W.1) and Maheshwari Yadav (P.W.2). In the said case, father of Sushil (appellant) and his brother were murdered. This witness denied the suggestion that in Sessions Trial No. 401 of 2005, accused Dinesh, Naresh, Sushil, Jagat Narayan, Tej Narayan and Dilip Yadav had deposed against this witness. In paragraph 18 of his cross-examination, he stated that he and other two namely Ashok and Mahesh stayed near the place of occurrence for about 10-15 minutes and thereafter, from there, they fled to police station. In paragraph 18 of his cross-examination, he stated that he and other two namely Ashok and Mahesh stayed near the place of occurrence for about 10-15 minutes and thereafter, from there, they fled to police station. In police station, he gave fardbeyan to the Bada Babu (S.I.). Statement of Ashok and Mahesh was also recorded at police station. At the police station itself, signature of all the three persons were obtained. About 10-15 minutes was consumed in recording statement there. In paragraph 21 of his cross-examination, this witness further stated that from the place of occurrence, dead body was carried to police station. It was carried on a tractor. All the three dead bodies with motorcycle were loaded on a tractor. In same paragraph, he further stated that witness Ashok (P.W.1) is his brother, Mahesh (P.W.2) is his cousin uncle. In paragraph 22 of his cross-examination, he further stated that Sessions Trial No. 401 of 2005 regarding murder was pending against him in the same court. In the said case, he, witness Mahesh, Ashok and three deceased were accused. He further accepted that against him and all three accused persons, there were case for outraging modesty of a lady and also theft. He further stated that accused Damodar Mandal had lodged a case, vide Raniganj P.S. Case No. 101/04 and for withdrawing the said case, one another case was instituted, vide case no. 247 against this witness. In his cross-examination, this witness has further accepted that this witness and three deceased were accused in number of cases. However, in paragraph 32, this witness denied the suggestion that three deceased were associate of other accused and in gang rivalry, all the three were killed by some other accused persons. He further denied the suggestion that this witness, three deceased and witnesses Ashok and Mahesh were accused in S.T. No. 401/05, which was lodged by appellant Sushil Yadav and the present case was instituted by him with a view to pressurize other witnesses. 15. Almost in similar manner, P.W.1 Ashok Kumar Yadav and P.W.2 Maheshwari Yadav have deposed and as such, there is no need to elaborately discuss their evidence. 16. 15. Almost in similar manner, P.W.1 Ashok Kumar Yadav and P.W.2 Maheshwari Yadav have deposed and as such, there is no need to elaborately discuss their evidence. 16. So far as evidence of P.W.3 Gajendra Yadav is concerned, he was father-in-law of deceased Anil Yadav and he too has claimed to be eye-witness, whereas, in the evidence of other witnesses, this fact has not been elaborately stated that this witness (Gajendra Yadav) was also with other witnesses. This witness in his evidence has stated that on the date of occurrence, he had come to Araria to attend a case and he was going to take betel near Court Hajat and he had seen Jaichand Yadav and the appellants i.e. Pawan Yadav, Amar, Sushil, Sunil, Sushil gossiping there. Jaichand was having discussion from inside bar. He had seen them talking. Thereafter, at 2:00 P.M., he told Awadhesh that accused persons are having discussion. At 3:00 PM, he returned to his house. He and Chandan (P.W4) both were returning on a motorcycle and near Raniganj eastern bridge near Dhar when he reached, he saw Amar, Sushil, Sunil, Sushil, Pawan Yadav (all appellants in aforesaid appeals) shouting, thereafter, they started chasing them. He alongwith others subsequently rushed to the Raniganj Police Station. In police station, when Chandan Yadav told that his brother Awadhesh Yadav, Anil Yadav and Rajo Yadav were killed about 4:30 PM, police reached to the place of occurrence. He saw the dead body of three accused persons, having fire-arm injury. In paragraph 2 of his cross-examination, he stated that he was the father-in-law of Anil Yadav (deceased). In paragraph 6 of his cross-examination, he stated that their statement was recorded in police station itself. Ofcourse, this witness has claimed that he was also with P.W.4 Chandan (informant), but in evidence of other witness, no such fact has elaborately been mentioned. 17. P.W.5 Kundan Kumar Yadav had put his signature on seizure list relating to blood soaked soil found near three dead bodies and also he put his signature on seizure list relating to recovery of pillets and motorcycle, which were marked as Ext. 3, 3/1 and 3/2 respectively. He also put signature on inquest report of three dead bodies, which were marked as Ext. 2, 2/1 and 2/2 respectively. In paragraph 3 of his cross-examination, he stated that he was the son of deceased Rajo Yadav. 3, 3/1 and 3/2 respectively. He also put signature on inquest report of three dead bodies, which were marked as Ext. 2, 2/1 and 2/2 respectively. In paragraph 3 of his cross-examination, he stated that he was the son of deceased Rajo Yadav. Deceased Anil Yadav was his cousin brother. Informant Chandan Yadav is the cousin brother of this witness. He stated that near Kajra Dhar bridge, 100-150 persons had assembled. Besides him, Bipin Kumar Sah (not examined) was also there and there were none known person to him. Before his arrival, Darogaji had already arrived. On examination of his evidence, it appears that while he reached the place of occurrence, at that very time, number of people had already gathered, however he could not identify any known person in the said crowd. Meaning thereby that his evidence suggests that none of the witnesses, who has claimed to be eye-witness, were present there. This creates serious doubt on the prosecution case. He further stated that the motorcycle was seized by the police from a field. This again creates some suspicion on the prosecution case, since it was case of the prosecution that while three deceased reached on metal road near Kajradhar, Anil Yadav, who was driving the motorcycle, was given shot of firing and all the three fell down. Once it was case of the prosecution that after gun shot injury, the driver and occupant of the motorcycle with motorcycle fell down on the road, there was no reason to seize the motorcycle from a field. 18. Uma Nand Yadav P.W.9 was introduced as a witness on the point of conspiracy. Ofcourse, he has been examined as ‘hearsay witness’. This witness is the cousin uncle of informant (P.W.4). He, in his evidence, stated that on the date of occurrence, he had come to Araria court for doing pairvi in S.T. No. 401/05 in respect of his son. He stated that near Court Hajat and Stamp Vendor when he came there, he saw Sushil Sunil, Sushil S/o Vidyanand, Amardeep, Dilip, Jagat Narayan, Tej Narayan, Naresh Yadav, Damodar Mandal, Nandlal Yadav, Uday Chand Yadav, Dinesh Yadav. All of them were having some discussion with Jaichand and they were saying that ^^vkt dke reke dj nsuk gSA** Thereafter, after taking ticket, he returned for doing pairvi and he proceeded to his residence and while he reached near Kajradhar, it was about 3:30 PM. All of them were having some discussion with Jaichand and they were saying that ^^vkt dke reke dj nsuk gSA** Thereafter, after taking ticket, he returned for doing pairvi and he proceeded to his residence and while he reached near Kajradhar, it was about 3:30 PM. He was going on a jeep. He had seen those persons near Kajradhar. When he reached Raniganj at his resident after 10-15 min. he heard the ^^gYyk** that Awadhesh, Rajendra and Anil were gunned down. Thereafter, he went there and saw the police. The statement was recorded by the police and thereafter, he returned back to his village. In paragraph 2 of his cross-examination, he stated that he was cousin uncle of the informant. In S.T. No. 401/05 his son was one of the accused. In the said Sessions Trial No. 401/05, evidence had commenced from 12 noon and it concluded at 12:30 PM. 19. P.W.6 Dr. Om Prakash on 15-01-2007 was posted as Civil Assistant Surgeon in Sub-Divisional Hospital, Araria. On the said date, post-mortem was conducted by the then Assistant Civil Surgeon Dr. Gopal Prasad (P.W.8). He proved the post-mortem report of Awadhesh Yadav, which was marked as Ext. 4. In the post-mortem examination of Awadhesh Yadav, following facts were noticed:- “1. One wound of entrance of size 1” in diameter x cavity deep between left side of chin. 2. One wound of exit of size 3” x ½” x cavity deep over the lower part of left side of cheek. 3. One wound of entrance of ½” diameter x cavity deep over left side of forehead. 4. One wound of exit of 1” diameter x cavity deep damages whole left eye. 5. One wound ½” in diameter into cavity deep over upper part of left side of abdomen. 6. One lacerated wound of 2” x ½” into muscle deep over lower part of left side of chest. 7. One Bruise of 2” x 1” over the lower part of the left side of the chest. On dissection on opening the cranial cavity, the skull bone found fractured, left mandible fractured, brain material damaged and blood clots found. On opening thorasic cavity and on opening the abdominal cavity, full of blood, spleen ruptured, left lung ruptured, heart partially filled and other viscera are intact and in situ. Time elapsed since death - within 24 hours. On dissection on opening the cranial cavity, the skull bone found fractured, left mandible fractured, brain material damaged and blood clots found. On opening thorasic cavity and on opening the abdominal cavity, full of blood, spleen ruptured, left lung ruptured, heart partially filled and other viscera are intact and in situ. Time elapsed since death - within 24 hours. Death in our opinion is due to Haemorrhage and shock as a result of above mentioned injuries (firearm).” On the same date at about 11:55 AM, he jointly conducted autopsy with Dr. Gopal Prasad (P.W.8) and Dr. Satya Vardhan (P.W.7) on the dead body of Rajendra @ Rajo Yadav and found following ante-mortem injuries on his person: “External: (1) One penetrating circular wound of ¼” in diameter with charring over middle part of right side of back. On dissection, on opening the cranial cavity and abdominal cavity, the corresponding viscera were intact and in situ. And on opening the thorasic cavity, full of blood found and left lung and heart were fully lacerated. And found one bullet (small) on small part of left side of chest below the nipple inside skin and subcutaneous tissue. Time elapsed in death - within 24 hours. Death in our opinion is due to Haemorrhage and shock, as a result of above mentioned fire arm injuries.” He proved the post-mortem report of Rajendra Yadav @ Rajo Yadav, which was marked as Ext. 4/1. On the same date at 12:20 PM, he jointly conducted post-mortem of deceased Anil Yadav and found following injuries:- “1. One wound of entrance of ½” diameter x cavity deep over lower part of left side of chest. 2. One wound of exit of 1” diameter x cavity deep over middle left side of back. 3. One wound of ½” diameter with charring of surrounding skin over right side of chest over nipple. On dissection, opening the cranial cavity- NAD On opening of thorasic cavity, left 4th and 5th ribs of chest found fractured and lower part of sternum was also fractured, lungs were lacerated. On opening the abdominal cavity, full of blood found and spleen lacerated. Other viscera was intact and in situ. Time elapsed since death - within 24 hours. On dissection, opening the cranial cavity- NAD On opening of thorasic cavity, left 4th and 5th ribs of chest found fractured and lower part of sternum was also fractured, lungs were lacerated. On opening the abdominal cavity, full of blood found and spleen lacerated. Other viscera was intact and in situ. Time elapsed since death - within 24 hours. Death in our opinion is due to Haemorrhage and shock, as a result of above mentioned fire arm injuries.” He proved the post-mortem report of deceased Anil Yadav, which was marked as Ext. 4/2. 20. P.W.7 Dr. Satya Vardhan, like P.W.6 Dr. Om Prakash, proved his signature on post-mortem reports, which were marked as Ext. 4/1, 5/1 and 6/1. 21. Similarly, Dr. Gopal Prasad, who was also medical officer in Sadar Hospital, Araria proved his signature on postmortem report of Anil Yadav, which was marked as Ext. 6/2 and he proved signature of Dr. Om Prakash on P.M.R. of Anil Yadav, which was marked as Ext. 6/3. He also proved his signature on P.M.R. of Awadhesh Yadav, which was marked as Ext. 4/2 and signature on P.M.R. of Awadhesh Yadav of Dr. Om Prakash, which was marked as Ext. 4/3. This witness proved his signature on P.M.R. of Rajendra Yadav, which was marked as Ext. 5/2 and also signature of Dr. Om Prakash on P.M.R. of Rajendra Yadav, which was marked as Ext. 5/3. 22. P.W.10 Mahendra Kumar Sinha, who had recorded fardbeyan and also investigating officer in his evidence has proved fardbeyan, which was marked as Ext. 1/2, formal F.I.R. as Ext. 7, forwarding note as Ext. 1/3, writing of Lalan Sharma, S.I. on formal F.I.R. as Ext. 1/4, Inquest report in respect of dead body of deceased Awadhesh Yadav as Ext. 2/3, Inquest report in respect of dead body of deceased Anil Yadav as Ext. 2/4, Inquest report in respect of dead body of deceased Rajendra @ Rajo Yadav as Ext. 2/5. He also proved his signature on seizure list of blood soaked soil found near the dead body of Rajo Yadav, which was marked as Ext. 3/3. He also proved seizure list relating to 3.3 pillets recovered from the sweater of deceased Awadhesh Yadav and blood soaked soil seizure list which was marked as Ext. 3/4. 2/5. He also proved his signature on seizure list of blood soaked soil found near the dead body of Rajo Yadav, which was marked as Ext. 3/3. He also proved seizure list relating to 3.3 pillets recovered from the sweater of deceased Awadhesh Yadav and blood soaked soil seizure list which was marked as Ext. 3/4. He proved his signature on seizure list in respect of motorcycle and blood found near the dead body of Anil Yadav, which was marked as Ext. 3/5. 23. In his evidence, P.W. 10 stated that on 15-01-2007 he was officer incharge of Raniganj Police Station. On the said date, at 4:30 PM, he recorded fardbeyan of Chandan Kumar Yadav near Kajradhar on metal road, Raniganj. He categorically stated that fardbeyan was recorded at metal road Raniganj and thereafter, formal F.I.R., vide Raniganj P.S. Case No. 11 of 2007, was registered and it was forwarded. After drawing formal F.I.R., he took up the investigation of the case. During investigation at the place of occurrence itself, he prepared inquest report of the dead bodies. The inquest report was got signed by Kundan Kumar Yadav (P.W.5) and one Bipin Kumar, who has not been examined by the prosecution as a witness. In paragraph 6 of his evidence, he stated that near the dead body of Anil Yadav, he had found one red colour T.V.S. motorcycle and from there, he also obtained blood soaked soil. In paragraph 7, he described about the place of occurrence. About 60 feet away from main road, he had found dead body of Anil Yadav and near his dead body, a red colour T.V.S. motorcycle was found. In paragraph – 8, he described that about 35 feet away from main road, on southern side, dead body of Rajo @ Rajendra Yadav was found. All the three dead bodies were having fire-arm injury. From the pocket of dead body of Awadhesh Yadav, one 3x3 pillet was recovered. In paragraph 11 of his cross-examination, he stated that he got information regarding this occurrence from spy over telephone from Kajradhar, thereafter, he went there. On 15-01-2007 at 16.05 hrs. (04:05 PM) he got telephonic information. In paragraph – 12 of his cross-examination, he stated that before leaving police station, he made sanha entry, vide Sanha No. 378 of 2007 and thereafter, he proceeded to the place of occurrence. On 15-01-2007 at 16.05 hrs. (04:05 PM) he got telephonic information. In paragraph – 12 of his cross-examination, he stated that before leaving police station, he made sanha entry, vide Sanha No. 378 of 2007 and thereafter, he proceeded to the place of occurrence. In paragraph 13 of his cross-examination, he categorically stated that before he proceeded for the place of occurrence, nobody had come and given information at police station. He stated that fardbeyan of informant was recorded at the place of occurrence itself, which was near Kajradhar at Araria-Raniganj metal road and formal F.I.R. was drawn at 21.00 hrs. In paragraph 14, he stated that while he reached the place of occurrence, there was big crowd and all the three dead bodies were lying after very short distance. Dead body of Awadhesh Yadav was about 50 feet south from Araria-Raniganj main road. Dead body of Rajendra Yadav was found about 35 feet away in a field and dead body of Anil Yadav was found away from the main road on a land. As per his evidence, all the three dead bodies were found at some distance from each other. In paragraph 20-21, he stated that clothes of three deceased were soaked with the blood, however; he did not seize cloth. In paragraph 30, he states that from the place of occurrence, it was sent to Sadar Hospital Araria for post-mortem examination. In paragraph 31 of his cross-examination, he stated that all the three dead bodies were left at the place of occurrence itself due to non-availability of conveyance. In paragraph 33 of his cross-examination, the investigating officer stated that he was not aware as to when on the next date the dead bodies were sent for post-mortem examination, since he had already issued command in the evening. This witness in paragraph 42 has stated that the informant of the present case and prosecution witnesses were having criminal antecedent. 24. On minute examination of aforesaid evidence, it is difficult to say that prosecution was able to establish its case beyond all reasonable doubt. The reason for such suspicion is evident from the contradictory stand taken by investigating officer on the one hand and on the other hand, the witnesses who have claimed to be eye-witness to the occurrence. 24. On minute examination of aforesaid evidence, it is difficult to say that prosecution was able to establish its case beyond all reasonable doubt. The reason for such suspicion is evident from the contradictory stand taken by investigating officer on the one hand and on the other hand, the witnesses who have claimed to be eye-witness to the occurrence. The investigating officer/P.W.10 in clear term had stated that he recorded fardbeyan of the informant at the place of occurrence, whereas all the witnesses i.e. P.W.1 to P.W.4 have deposed that they went to Raniganj Police Station, where fardbeyan of P.W.4 was recorded and thereafter, police reached to the place of occurrence. P.W.1 to P.W.4 are consistent on the point that from the place of occurrence, dead bodies were carried to the police station and on the next date, they were sent for post-mortem examination, whereas the investigating officer (P.W. 10) has taken stand that due to non-availability of any vehicle or communication, the dead bodies were left at the place of occurrence itself and command was issued for sending the dead bodies in the next morning for post-mortem. The I.O. states that the dead bodies on a tractor were carried from place of occurrence to Sadar Hospital, Araria for post-mortem. This contradiction in between the I.O. and other eye-witnesses also creates serious doubt. Besides this, P.W.5 Kundan Kumar Yadav, who is none else but son of one of the deceased Rajo Yadav, deposed that immediately after the occurrence, he rushed to the place of occurrence and at the place of occurrence, he noticed a crowd of 100-150 persons amongst them, he had stated that none were known to him, however; he stated that before his arrival, police had already arrived. Meaning thereby that while this witness reached to the place of occurrence, the police party was already there, however; none of the witnesses, who had claimed to be eye-witness, were present at the place of occurrence, otherwise this witness, who was son of the deceased and also closely related to other so called eye-witnesses, would must have seen those witnesses. The evidence of P.W.5 creates serious doubt on the prosecution case. Moreover, fact remains that prosecution had developed a story subsequently, as if, prior to the occurrence, a conspiracy was hatched near the court hajat amongst accused persons and one of the accused, who was in custody. The evidence of P.W.5 creates serious doubt on the prosecution case. Moreover, fact remains that prosecution had developed a story subsequently, as if, prior to the occurrence, a conspiracy was hatched near the court hajat amongst accused persons and one of the accused, who was in custody. This tendency of developing story also creates doubt on the prosecution case. 25. It is also not in dispute that all the three deceased were accused in number of cases and particularly on the date of occurrence, they had gone to attend a sessions trial in Araria court. On the point of conclusion of the proceeding in the Araria court also, there are glaring inconsistencies in the evidence of witnesses. Some of the witnesses have said that proceeding in S.T. No. 401/05 concluded at 12:30 PM, some stated that it concluded at 2:00 PM, the informant in fardbeyan himself had stated that since he belatedly reached the court, he got date in the sessions trial. All those inconsistencies at different levels create serious doubt on the prosecution case. Moreover, all the so-called eye witnesses are closely related with each other and deceased. 26. On examination of entire evidence, it is difficult to conclusively come to the conclusion that in the occurrence, none else other than the appellants were involved and as such, all the appellants are entitled to get benefit of doubt. We are of the considered opinion that the prosecution has failed to establish its case beyond all reasonable doubt and as such, there is no reason to approve the judgment of conviction dated 06-09-2012 and sentence dated 15-09-2012 in respect of aforesaid appellants. 27. Accordingly, the judgment of conviction dated 6th September, 2012 and order of sentence dated 15th September, 2012 passed in Sessions Trial No. 753 of 2009/Trial No. 55 of 2009 (arising out of Raniganj P.S. Case No. 11 of 2007) by Sri Jitendra Nath Singh, learned Additional Sessions Judge 4th, Araria is, hereby, set aside and all the three appeals are allowed. 28. Since all the appellants are in custody and their conviction and sentence has been set aside, all the appellants are directed to be released forthwith, if not wanted in any other case.