JUDGMENT : Ram Surat Ram (Maurya), J. 1. Heard Sri Kamal Krishna, Senior Advocate, assisted by Sri Pradeep Kumar Rai and Sri Shri. Niwas Yadav, for the appellants and Sri Rajesh Kumar Mishra, Brief Holder, for State of U.P., in both the appeals. 2. Ram Bhawan has filed Criminal Appeal No. 886 of 2015 and Shankar alias Ramashankar and Hari Kishun have filed Criminal Appeal No. 887 of 2015 from the judgment of Session's Judge, Mau, dated 18.02. 2015, passed in S.T. No. 63 of 2001, State v. Shankar and others, (arising out of Case Crime No. 537 of 2000, under Section 302/34 of Indian Penal Code, 1860 (hereinafter referred to as the IPC)), S.T. No. 61 of 2001, State v. Hari Kishun, (arising out of Case Crime No. 580 of 2000, under Section 5 of Explosive Substance Act, 1908) and S.T. No. 64 of 2001, State v. Hari Kishun, (arising out of Case Crime No. 579 of 2000, under Section 25 of Arms Act, 1959), P.S. Ghosi, district Mau, convicting and sentencing the appellants Ram Bhawan Yadav, Shankar alias Ramashankar and Hari Kishun Yadav, for imprisonment for life and fine of Rs. 20,000/- each, under Section 302/34, IPC, Hari Kishun Yadav, for three years rigorous imprisonment and fine of Rs. 2000/- under Section 25/27 of Arms Act, 1959 and Hari Kishun Yadav, for five years rigorous imprisonment and fine of Rs. 3000/- under Section 5 of Explosive Substance Act, 1908, with default stipulation. 3. On the written complaint (Ex-Ka-1) of Ram Yadee (P.W. 1), FIR (Ex-Ka-14) of Case Crime No. 537 of 2000 was lodged under Section 307 IPC, on 09.11.2000 at 5:00 hours, at P.S. Ghosi, district Mau, against Shankar alias Rama Shankar, Ram Bhawan and Hari Kishun by Constable Moharrir Heeraman Ram (P.W. 7). It has been stated in the FIR that Ram Yadee Kurmi son of Ram Jas was resident of village Bhairopur, PS Ghosi. In evening of last night, he along with his younger cousin Ram Bhawan son of Khakheru Kurmi and nephew Bhikham son of Ram Bhawan, slept at the house of Manager son of Shiv Muni Yadav, resident of village Saddopur, PS Madhuvan, after eating the meal, as it has become late night. On the date of incident, in early morning at about 3:30 a.m., after awaking, all the three persons were returning to their house, taking torch and danda in their hand. On the date of incident, in early morning at about 3:30 a.m., after awaking, all the three persons were returning to their house, taking torch and danda in their hand. While going on the brick-paved road of village Kalyanpur, Ram Bhawan was proceeding ahead and he and his nephew were following him, in the light of torch. Shankar son of Lal Bihari, resident of his village, along with Ram Bhawan son of Dasrath Yadav resident of village Jameen Suvah (Chamariyaon), PS Ghosi and Hari Kishun son of Murli Yadav, resident of village Saddopur, PS Madhuvan were standing on brick-paved road ahead to them. While challenging, Shankar exhorted that here is Ram Bhawan, Pradhan, kill him, by hurling bomb and gunshot. On which Hari Kishun, Ram Bhawan and Shankar, who were armed with bomb and pistol, inflicted indiscriminate firing and assaulted with bomb to his cousin Ram Bhawan at about 4:00 a.m., injured him and started fleeing away. All the three accused were seen and fully identified by their names and faces by the informant, his nephew Bhikham and Manager Yadav son of Shiv Muni, who had come to ease in the field towards that place as well as many other persons, who had come there, hearing the sound of bomb. The incident was caused due to enmity of the last election for Pradhan of the village. He and his nephew came near Ram Bhawan, who has fallen down by the side of brick-paved road and after seeing him, his nephew brought his jeep from his house, hurriedly and with the help of others boarded him in jeep and they have come for giving written application to lodge FIR of the incident. His brother has received grievous bullet and bomb injuries. After lodging report, necessary action be taken. 4. After lodging of FIR, In-charge Inspector Nand Lal Yadav (P.W. 6), started investigation in the matter. He sent the injured Ram Bhawan to PHC Ghosi, for his medical examination, along with a Constable. Dr. A.K. Srivastava (P.W. 4), Medical Officer, PHC Ghosi, found that the condition of Ram Bhawan was critical as such he immediately referred him for District Hospital Mau, without examining his injuries. Inspector Nand Lal Yadav (P.W. 6) copied the check FIR and GD. entry in case diary and recorded statement of the informant. He came to PHC Ghosi and allegedly recorded statement of Ram Bhawan. Inspector Nand Lal Yadav (P.W. 6) copied the check FIR and GD. entry in case diary and recorded statement of the informant. He came to PHC Ghosi and allegedly recorded statement of Ram Bhawan. He came on the spot and made spot inspection. At that time, he was informed on R.T. Set that Ram Bhawan had died in the way of District Hospital Mau, his dead body was brought to the police station Ghosi and the case was converted under Section 302 IPC from Section 307, IPC. He made spot inspection on pointing out of the informant and prepared site-plan (Ex-Ka-5). He collected remainders of the bomb from the spot and prepared its recovery memo (Ex-Ka-6). He found two used cartridges of 12 bore and one used cartridge of 315 bore from the spot and prepared its recovery memo (Ex-Ka-7). He took blood stained and plain earth from the spot and prepared its recovery memo (Ex-Ka-8). He prepared recovery memo (Ex-Ka-9) of the cycle of Ram Bhawan and handed over it to Bhikham. He prepared recovery memo (Ex-Ka-2) of the torch of Ram Yadee and returned it to him. He recorded statements of Harihar, Shiv Chandra, Ram Bhawan son of Indrapati, Rambal and others. He recorded statement of Dr. A.K. Srivastava. He copied the Inquest and recorded statements of the Panches in case diary. On receiving Post-mortem Report, he copied it in case diary. In the meantime, the accused Hari Kishun surrendered before the Court. He recorded statement of Hari Kishun, in which he confessed his guilt and became ready to recover the country made pistol used in commission of crime and live bombs. He took Hari Kishun in police custody remand on 18.11.2000 and on his pointing out recovered one country made pistol of 12 bore, two live cartridges and one live bomb and prepared its recovery memo (Ex-Ka-13). He sent the remainders of the bomb for its examination to State Forensic Laboratory. After completing investigation, he submitted charge sheet (Ex-Ka-12) against the accused, under Section 302/34, IPC, on which cognizance was taken. 5. SSI Ram Adhar Mishra conducted Inquest (Ex-Ka-22) of the dead body on 09.11.2000 during 8:00 to 10:05 hours at the police station Ghosi. He sent the remainders of the bomb for its examination to State Forensic Laboratory. After completing investigation, he submitted charge sheet (Ex-Ka-12) against the accused, under Section 302/34, IPC, on which cognizance was taken. 5. SSI Ram Adhar Mishra conducted Inquest (Ex-Ka-22) of the dead body on 09.11.2000 during 8:00 to 10:05 hours at the police station Ghosi. He prepared photo lash, challan lash and letters to the authorities (Exs-Ka-18 to Ka-21) for conducting post-mortem of the dead body and handed over the dead body to Constables Jay Prakash Mishra and Umakant Mishra, for taking it to the mortuary. Dr. S.N. Tripathi conducted autopsy of the dead body on 09.11.2000 at 3:00 p.m. and prepared post-mortem Report (Ex-Ka-4) in which following ante-mortem injuries were noted:- (i) Firearm wound of entry 2.5 cm x 2 cm x bone deep, right side face over lateral angle of right eye. Margins inverted. Blackening present around and over 1 cm right side of face. Medially upward and backward. Recovered three small metallic pellets. Pellets were 12 wads and 07 small metallic pellets cranial cavity. (ii) Firearm wound of entry 2.5 cm x 2 cm in chest cavity deep back 09 cm of chest and 9 cm below lateral, 7th vertebra, blackening and tattooing present, recovered 11 metallic pellets from muscle. (iii) Bomb injury 13 cm x 9 cm x muscle deep over right gluteal region, margins everted and lacerated. In internal examination, left lung was lacerated and 09 metallic small pellets were recovered; heart was empty; 400 ml blood present in right chest cavity; pastry matter about 100 gram present; small intestine as well as large intestine contained faecal and gases; gall bladder was half full; urinary bladder was empty. According to doctor cause of death was "shock and hemorrhage as a result of ante-mortem injuries." 6. On the basis of recovery memo (Ex-Ka-13); Case Crime No. 579 of 2000 was registered under Section 27/25 of Arms Act, 1959 and Case Crime No. 580 of 2000 was registered under Section 5 of Explosive Substance Act, 1908 (Ex-Ka-15). SSI Ram Adhar Mishra conducted investigation in the matter. After investigation, he obtained sanction for prosecution from District Magistrate and submitted charge sheet (Ex-Ka-13) on 12.01.2001, under Section 27/25 of Arms Act, 1959 and charge sheet (Ex-Ka-14) on 11.02.2001, under Section 5 of Explosive Substance Act, 1908, on which cognizance were taken. 7. SSI Ram Adhar Mishra conducted investigation in the matter. After investigation, he obtained sanction for prosecution from District Magistrate and submitted charge sheet (Ex-Ka-13) on 12.01.2001, under Section 27/25 of Arms Act, 1959 and charge sheet (Ex-Ka-14) on 11.02.2001, under Section 5 of Explosive Substance Act, 1908, on which cognizance were taken. 7. On committal, the cases were registered as ST No. 63 of 2001, State v. Shankar and others, under Section 302/34, IPC, ST No. 61 of 2001, State v. Hari Kishun, under Section 5 of Explosive Substance Act, 1908 and ST No. 64 of 2001, State v. Hari Kishun under Section 25 of Arms Act, 1959. Session's Judge framed charges against the accused on 25.08.2003. The accused pleaded "not guilty" and claimed for trial. In order to prove the charges, apart from documentary evidence, the prosecution examined Ram Yadee (P.W. 1), the informant and an eye-witness, Bhikham (P.W. 2), the son of the deceased and an eyewitness, Manager Yadav (P.W. 3), an eye-witness, Dr. A.K. Srivastava (P.W. 4), to prove that on 09.11.2000, the injured was brought to PHC, Ghosi in serious condition and he was referred to District Hospital, without examination by him, Sarvesh Chandra Gupta (P.W. 5) a pharmacist, to prove Post-mortem Report (Ex-Ka-4), Inspector Nand Lal Yadav (P.W. 6), Investigating Officer, Constable Heeraman Ram (P.W. 7), to prove check FIR and SI Ram Sanehi Yadav (P.W. 8), to prove Inquest (Ex-Ka-22) and the papers of investigation in Case Crime Nos. 579 and 580 of 2001. 8. After completion of the evidence of the prosecution, all the incriminatory facts and materials were put to the accused under Section 313, Cr.P.C. They denied the facts and materials and claimed for false implication due to enmity and election rivalry. Ram Bhawan has stated that he was falsely implicated, being a relative of Hari Kishun, who had contested the election of Pradhan against the deceased. Shankar has stated that Hari Kishun and Ram Bhawan were in relations of each other. He had contested the election of Member, Block Development Committee against nephew of Ram Bhawan, due to which they keep enmity with him. He was living at village Para (Mapara), Nai Basti, PS Amila, district Hardoi, since 1998, along with his family members. His children were taking education there. He was doing agriculture there. He had never came to this village during 1998 to 2002. He was living at village Para (Mapara), Nai Basti, PS Amila, district Hardoi, since 1998, along with his family members. His children were taking education there. He was doing agriculture there. He had never came to this village during 1998 to 2002. They have filed an information received from Circle Officer of the police Ghosi, showing that Ram Bhawan (the deceased) was a history sheeter of the police station Ghosi. 9. After hearing the parties, learned Sessions Judge, by the impugned judgment, held that the charges against the accused were fully proved from the statement of the witnesses and other evidence on record. On these findings, he convicted the appellants and sentenced as mentioned above. Hence, these appeals have been filed. 10. In order to prove the charges, the prosecution has examined Ram Yadee, Bhikham and Manager Yadav (P.Ws. 1, 2 and 3) as eye witnesses of the incident. Ram Yadee (P.W. 1) has stated that prior to the incident, his cousin, Ram Bhawan and the accused Hari Kishun had contested the election of gram pradhan, in which his brother Ram Bhawan won the election. Due to which Hard Kishun developed enmity with him and his cousin Ram Bhawan. Gram sabha of his village as well as village Saddopur is the same. In the evening, prior to the day of incident, my nephew and cousin Ram Bhawan went to the house of Manager Yadav to take meal at village Saddopur. As it became too late in the night, as such all the three slept there after taking meal. In the early morning at 3:30 a.m. they woke up and proceeded towards the house having torch and danda in their hands. They reached at the brick-paved road near village Kalupar; Ram Bhawan was ahead to Bhikham (his nephew) and Bhikham was ahead of him. They were walking in the light of torch. In the light of torch, they saw that Shankar resident of his village and Ram Bhawan Yadav resident of village Jamin Subah (Chamariyaon) and Hari Kishun resident of village Saddopur were standing on the brick paved road. Shankar exhorted and said that here is Ram Bhawan, Pradhan, kill him by bullets and bomb. In the meantime, Hari Kishun armed with country made pistol and Ram Bhawan and Shankar having bomb in their hands opened indiscriminate firing, attacking upon his brother Ram Bhawan and causing injury to him. Shankar exhorted and said that here is Ram Bhawan, Pradhan, kill him by bullets and bomb. In the meantime, Hari Kishun armed with country made pistol and Ram Bhawan and Shankar having bomb in their hands opened indiscriminate firing, attacking upon his brother Ram Bhawan and causing injury to him. It was 04:00 a.m. in the morning. In the light of torch, they saw all the three accused causing the incident and recognized them well. This incident was also witnessed by Manager Yadav, who had come there to attend the call of nature. Ram Bhawan fell down after receiving injuries in the field of Ram Bachan, which was beside the road. The accused fled away after causing injury to his brother towards north-east. Thereafter, he sent Bhikham to the house to bring the Jeep. After the villagers came there, they boarded Ram Bhawan in the Jeep and came to the house; and he got the report (Ex-Ka-1) scribed by Ram Bilas resident of Chamariyaon. He went to the police station along with his cousin and Bhikham and lodged the FIR. After lodging of FIR, Deevan ji completed the paper work and sent Ram Bhawan for medical examination to R.S. Government Hospital, Ghosi, along with a constable. Daroga ji recorded the statement of Ram Bhawan in Ghosi Hospital. Seeing his serious condition, he was sent to District Hospital, Mau. Ram Bhawan died on the way, before reaching Mau. He was taken to Hospital, Mau where he was declared dead. After taking the dead body, they went to P.S. Ghosi along with the constable. His statement was recorded by Daroga ji after lodging of the FIR. From the police station, Daroga ji went to the place of incident along with him, where on his pointing out, map of the place of incident was prepared. The police took into custody Eveready Torches of three cells, belonging to him, Bhikham and Ram Bhawan and returned the same after preparing recovery memo Ex-Ka-2. He had recognized the accused Ram Bhawan Yadav, Hari Kishun and Shankar in the light of his torch, when they were fleeing away after hitting his cousin Ram Bhawan with bullets and bomb. He produced that torch (Eveready Jeevan Saathi), in the Court, which was having three cells and given to darogaji and that too was handed over to him after preparing its recovery memo. That torch is fully functional. He produced that torch (Eveready Jeevan Saathi), in the Court, which was having three cells and given to darogaji and that too was handed over to him after preparing its recovery memo. That torch is fully functional. The torch was marked as Material Exhibit-1. Darogaji had also recovered one torch from his nephew Bhikham and cousin Ram Bhawan, the deceased and recovery memo of which, was signed by my nephew Bhikham and Shriram Singh, the witness. In cross-examination, he stated that he reached the police station at 08:00 o'clock in morning along with dead body. Mahatam, Baliram, Shriram and other villagers were also accompanied to him at the police station. They went to the police station from Jeep. When he went to the police station, Ram Janam son of Ramashankar Kurmi, Shripat son of Ramnarain Kurmi, Nar Singh son of Marchhu Kurmi, Subhash son of Chhangur Yadav resident of Bairopur, P.S. Ghosi, Distt. Mau and Ram Shabad son of Bal Karan Yadav, resident of Namriyadeeh, P.S. Ghosi, district Mau had also accompanied to him. He met darogaji at the police station and remained there at about 1-1/2 to 2 hours. Panchanama was prepared and dead body was sealed at the police station. After making Panchanama, he went along with darogaji for making spot inspection. Darogaji had not asked him about the enmity. The dead body was carried out from the police station on Jeep and from the place of incident by Mahatam, Ramjanam, Shripat, Baliram and Shriram. Neither he, nor Ram Bhawan had any friendship along with Manager Yadav resident of Saddopur but he used to go to his house. The deceased used to go at the house of Manager Yadav and Manager Yadav also used to go to the house of Ram Bhawan, the deceased. He does not know as to whether any criminal proceeding was going on upon the deceased or not and he was sent to jail. There was no other person in his village of the name of Ram Bhawan, except Ram Bhawan Kurmi (the deceased). He does not know that how many criminal cases were pending against Manager Yadav, (friend of Ram Bhawan) and he denied the friendship with Manager Yadav and stated that he was not the regular visitor to the house of Manager Yadav. He does not know that how many criminal cases were pending against Manager Yadav, (friend of Ram Bhawan) and he denied the friendship with Manager Yadav and stated that he was not the regular visitor to the house of Manager Yadav. It was incorrect to say that he was intentionally not disclosing the criminal cases pending against Ram Bhawan and Manager Yadav. He did not know as to whether Ram Bhawan and Ram Bhawan Harijan, resident of Chhapra was the accused in many criminal cases. After the death of Ram Bhawan, he had never seen Ram Bhawan Harijan at the village. The house of Manager Yadav was at a distance of 1 to 1-1/2 kilometer. He went on foot along with Ram Bhawan and Shriram and reached there within 15 minutes in the light of the day. When they reached the house of Manager Yadav, there was sun set. They ate the meal at 09:00 p.m. He did not know the occasion for which Manager Yadav had organized that bhoj. He stated that during election of Pradhan, no altercation took place between the contestants. The election was completed peacefully. At the place of incident, there were paddy field and it was a dark night. The accused kept themselves hidden at a distance of 5-6 paces from the place of incident. For the first time, shot was opened from west side, which was the field of Bhar. There were two-three fire from west side. He did not receive any injury. Firstly, bomb was thrown upon the deceased and when the deceased fell down then firing was made upon him. Darogaji had rightly recorded his statements that firstly indiscriminate firing was made from country-made pistol and bomb and when Ram Bhawan sustained injury then from close range, three fires were made upon him, which also caused injury to the deceased. Three bombs were thrown upon the deceased from a distance of 4-5 paces, which caused injury to the deceased Ram Bhawan due to which he fell down. The bomb injuries were caused first on the right buttock, second on right forearm and third was also caused on right side. Ram Bhawan was wearing dhoti-kurta at that time and was not seated on the cycle. The cycle was also broken from the pellets of bomb. The cycle was of black colour. The rim of cycle was broken and tire was burst. Ram Bhawan was wearing dhoti-kurta at that time and was not seated on the cycle. The cycle was also broken from the pellets of bomb. The cycle was of black colour. The rim of cycle was broken and tire was burst. He reached at the place of incident after 10-20 minutes. Bhikham also reached at the place of incident. The blood was on his clothes and Bhikham as well. They went to the police station wearing those blood-stained clothes. He did not know whether the fact that who carried the bomb and who armed with country made pistol was scribed in the report or not. The report was scribed by Ram Bilash. He did not scribe the fact that how many injuries were caused either from country made pistol or from bomb. Darogaji had got the same scribed. He told darogaji that three injuries were caused from bomb and three were caused from country made pistol. He met Manager Yadav for the first time at police station at 06:00 AM in morning. Hari Kishun was not lame although he was faltering. He had heard that Sri kishun alias Bhuwa, brother of Hari Kishun was got murdered in the day light prior to this incident. He did not know that Manager Yadav was the accused in that murder. Prior to the incident, Nageena, Shiv and Ram Naresh, resident of his village had attacked upon Ram Bhawan, (the deceased) in night near the school and in that incident the deceased Ram Bhawan had also received injuries from bomb. It is incorrect to say that he had not seen the occurrence. It is incorrect to say that Ram Bhawan due to his notorious criminal activity, created nuisance in leading a dignified life to the persons of Harijan basti and due to which the persons having criminal antecedents murdered Ram Bhawan in the dark night. It is incorrect to say that Manager Yadav had falsely implicated Shankar due to his previous enmity. It is also incorrect to say that the draft of FIR was prepared with the help of Manager, Ram Bilash, Police and Darogaji with much delay and had been shown to be registered before that. It is also incorrect to say that he is giving false statement. 11. Bhikham, (P.W. 2) has stated that he is an agriculturists and resident of village Bhiropur, P.S. Ghosi, district Mau. It is also incorrect to say that he is giving false statement. 11. Bhikham, (P.W. 2) has stated that he is an agriculturists and resident of village Bhiropur, P.S. Ghosi, district Mau. Prior to this incident, election of gram pradhan was held in his village, in which his father Ram Bhawan and Hari Kishun Yadav, resident of village Sadopur contested the election. The gram sabha of his village Bhairopur and Sadopur was the same. In that election his father was elected and Hari Kishun Yadav lost the election of Pradhan. Due to which, Hari Kishun Yadav was having enmity with his father. Accused Shankar and Ram Bhawan Yadav belonged to the party of Hari Kishun. Due to this enmity, the incident was caused at 04:00 o'clock in the morning, quarter to four years from the date of statement. In the evening, he and his uncle Ram Yadee and father Ram Bhawan on cycle had gone to nearby village Sadopur, which was in the same gaon sabha. They had gone to the house of Manager Yadav for conversation in respect of a matter of gaon sabha. They took meal there and as it became too late in night, they stayed there. In the morning they woke up at 03:30 o'clock and he along with his father having torch and cycle, proceeded towards Bhairopur on the brick paved road. His father was going ahead on cycle and behind him, he and his uncle were moving on foot with the help of torch. When we reached at the vicinity of village Kalupar on brick paved road then Hari Kishun Yadav resident of village Saddopur and Shankar resident of village Bhairopur along with Ram Bhawan resident of Jamin Subah mauja Chamariyaon were standing there. Looking to my father, Shankar Yadav exhorted to kill Ram Bhawan, his father, by causing bomb and bullet injury. Thereafter Hari Kishun Yadav, Shankar Yadav and Ram Bhawan made indiscriminate firing upon his father Ram Bhawan with an intention to kill by bomb and country made pistol. After receiving the injuries, his father fell down on brick paved road along with his cycle. It was 04:00 o'clock of morning. After falling down of his father, Hari Kishun made three fires with his country made pistol. After receiving the injuries, his father fell down on brick paved road along with his cycle. It was 04:00 o'clock of morning. After falling down of his father, Hari Kishun made three fires with his country made pistol. At that time, Manager Yadav of village Saddopur, in whose house, we had gone, was also corning towards the place of incident for easing, who had also witnessed the incident in the light of torch. They had also witnessed and recognized the accused, causing injury to his father by country made pistol and bomb. He, along with his uncle Ram Yadee and Manager Yadav challenging the accused, ran towards them. All the accused fled away towards north-east. They did not chase them out of fear. Looking to the condition of his injured father, he went to his house to fetch his jeep. After fetching the jeep, he got boarded his father in it and his uncle Ram Yadee had got the report scribed by Ram Bilas in the light of torch and went to RS. Ghosi, where his uncle had lodged the report. They took his father to the hospital at Ghosi in the same jeep, where the doctor, looking to his critical condition, referred him to District Hospital, Mau, but on that very time, Inspector arrived at the hospital and recorded the statement of his father, before them. Thereafter, while going to Sadar Hospital, Mau, on the way, near Tandiao, P.S. Kopaganj, his father died as a result of injuries caused by the accused Hari Kishun, Shankar and Ram Bhawan by country made pistol and bomb. He brought the dead body of his father to the Sadar Hospital, from where he took the dead body to the police station. At that time, Shriram, Mahatam and Ram Janam of his village, had gone inside the police station and he was sitting outside. Daroga ji had recorded his statement. Daroga ji took his Eveready Torch of three cells in his custody and prepared its recovery memo, read it over to him and took his signatures over it. The recovery memo was exhibited as Ex-Ka-2. The witness had proved his signatures on the recovery memo in the court. Daroga ji had recorded his statement. Daroga ji took his Eveready Torch of three cells in his custody and prepared its recovery memo, read it over to him and took his signatures over it. The recovery memo was exhibited as Ex-Ka-2. The witness had proved his signatures on the recovery memo in the court. After the incident, Hari Kishun, along with two other persons, fired upon him and his cousin Rajesh by country made pistol, in which his cousin succumbed to his injuries, caused by the fire, regarding which, the case is pending. In cross-examination, he has stated that his father Ram Bhawan (the deceased) had sustained only two gunshot injuries and that too was on his head. Apart from these injuries, there were no other injuries. Both the gunshot injuries were on the corner of right eyebrow on the forehead. It is correct that he had told Daroga ji about three fires, but only two injuries were sustained. The third fire on the deceased was made from a distance of one log. That fire missed and only two fires had hit. The bullets did not pass through and through and after entering in the head, both the bullets remained clogged in the head. On meeting Daroga ji on the third day at the place of incident, he told him that bombs were thrown on the deceased from both north and east sides of the road. He was not a witness of Inquest, which was prepared at the police station. Inquest was conducted before him. He did not remember the time of inquest. Dead body was sent for post-mortem at 10:00 hours. Hari Kishun and other people had contested the election of Gram Pradhan. He did not remember as to how many candidates had contested the election. He did not know as to whether Hari Kishun was lame of one leg or not. It is incorrect to say that Ram Bhawan was relative of Hari Kishun. Manager Yadav did not accompany him. It is incorrect that he was not present at the place of incident and did not witness the incident. It is also incorrect to say that his father died on the spot and due to prior enmity, after due deliberations with Manager Yadav, he lodged the false report. It is incorrect that he had made false statement. It is incorrect that he was not present at the place of incident and did not witness the incident. It is also incorrect to say that his father died on the spot and due to prior enmity, after due deliberations with Manager Yadav, he lodged the false report. It is incorrect that he had made false statement. He did not remember as to whether blood-stained and plain earth were taken from the place of occurrence by Investigating Officer. Investigating Officer did not recover remainders of the bomb and empty cartridges in his presence. On the spot, Investigating Officer was inquiring as to how Ram Bhawan was murdered. He did not know that, after talking with Ram Yadee and Balram, Investigating Officer went to interrogate Ram Bhawan Harijan, at Harijan basti. He did not know that Ram Bhawan Harijann was a man of criminal nature and several criminal cases were pending against him and he was absconding after the murder of his father. He did not know as to how many criminal cases of murder and loot were registered against his father and how many times he was detained in jail. In his statement, recorded by Investigating Officer, it has been wrongly recorded that there were three cycles with them at the time of incident. They were coming on two cycles. His father was having separate cycle and he was having separate cycle but no one was riding on the cycle. Prior to this incident, his father and Ram Yadee had never gone to the house of Manager Yadav for taking feast nor had ever taken meal at his house. On the date of incident, there was no occasion or function at the house of Manager Yadav. Distance between his house and the house of Manager Yadav was about one kilometer. On the date of incident, they reached at the house of Manager Yadav at about 3:00-4:00 p.m. His father had gone to talk with Manager Yadav, in respect of construction of chak road although he was neither member of Gram Panchayat nor Block Development Committee. When they reached the house of Manager Yadav, Manager Yadav and his uncle were present there. There was dark night on the date of incident. There was light fog also. Attack upon his father was made by the side of the road from bullets and bombs. When they reached the house of Manager Yadav, Manager Yadav and his uncle were present there. There was dark night on the date of incident. There was light fog also. Attack upon his father was made by the side of the road from bullets and bombs. Total two bombs were thrown upon his father, from east and west side, from a distance of 7-8 paces, which hit him. The accused threatened that in case, they would shout then they would kill them also. After the incident, he left the cycle on the spot and went running to his house. He was wearing pant and bushirt. While lifting his father, blood-stains came on his clothes. But his clothes were not taken into possession by Investigating Officer. 12. Manager Yadav (P.W. 3) has stated that Ram Bhawan Kurmi was murdered about 4 years ago at 4:00 a.m. In the evening of the incident, Ram Bhawan Kurmi, Bhikham and Ram Yadee, residents of Bhairopur had come to his village and at his house talks relating to construction of the chak road in front of his house was going on as his village and the village of Ram Bhawan falls within same gaon sabha and Ram Bhawan Kurmi was Pradhan at that time. The accused Hari Kishun, Ram Bhawan Yadav and Shankar, who belonged to one party had enmity of the election of Pradhan. While talking in relation to chak road with Ram Bhawan Kurmi, Bhikham and Ram Yadee, it had become late night, then they ate meal at his house and slept there. They woke up at about 3:30 a.m. and Bhikham and Ram Yadee riding on one cycle and Ram Bhawan on other cycle proceeded to their house. He also awoke and went to ease towards the field of Ram Lakhan, in western side of the village. As soon as he stood up after easing, he heard the sound of bomb and bullets and also heard that this was Ram Bhawan Kurmi, Pradhan, kill him. He also rushed, while shouting, towards the place, from where sound was coming. On reaching he saw that Hari Kishun, Ram Bhawan Yadav and Shankar were fleeing away after causing bomb and gun shot injuries to Ram Bhawan Kurmi, Pradhan and Bhikham and Ram Yadee were shouting, flashing the torch. He also fully saw and recognized the accused in the light of torch. On reaching he saw that Hari Kishun, Ram Bhawan Yadav and Shankar were fleeing away after causing bomb and gun shot injuries to Ram Bhawan Kurmi, Pradhan and Bhikham and Ram Yadee were shouting, flashing the torch. He also fully saw and recognized the accused in the light of torch. Ram Bhawan Kurmi was lying in injured condition in the field of Ram Bhachan Koeri, near brick-paved road. Bhikham brought jeep from his house and after boarding Ram Bhawan Kurmi in it, took him to Ghosi. He has heard that from Ghosi, they were taking Ram Bhawan to Mau but Ram Bhawan died on the way. His statement was recorded by Investigating Officer. In cross-examination, he stated that Shri. Kishun, brother of Hari Kishun was murdered prior to this incident. In the murder of Shri. Kishun, he and his family members were named accused. Apart from that case, Hari Kishun or his family member did not lodge any other case, relating to fight. There was no other person of his name and parentage in his village. On the accusation of Hari Kishun, a criminal case was going on against him in Fast Track Court No. 1, which was a cross case. On the date of incident, there was no feast or any special occasion. Ram Bhawan used to go and eat food to the house of other persons of his village. They ate food at about 10:00 p.m. He remained talking in respect of chak road even after eating food. He was neither member of Land Management Committee nor Block Development Committee and was also not holding any post. Ram Bhawan used to consult him and other villagers. In that conversation, only his family members were involved and not the villagers. He has given statements to Investigating Officer that on the date of incident, all the three went on separate cycles. He used to go to ease at about 3:00 to 3:30 a.m. Prior to this incident, the deceased had stayed at his house in night on about 20 occasions. Whenever, he stayed, he used to go in early morning or whenever he desired and not at any fixed time. The place of occurrence was at a distance of half kilometer from his house, in south. In that side, he had several fields. Whenever, he stayed, he used to go in early morning or whenever he desired and not at any fixed time. The place of occurrence was at a distance of half kilometer from his house, in south. In that side, he had several fields. He was easing in the field of Ram Lakhan, which was in north of the place of occurrence. He went towards the place of occurrence, listening the sound of bullet and bomb. When he reached the spot, Ram Bhawan was falling down, one cycle was broken. Cycle of Bhikham was not broken. He did not know about third cycle. He was knowing about two cycles. Ram Bhawan was not his old friend. Bhikham, Ram Yadee and he had jointly lifted Ram Bhawan and kept at the road. Blood was also soaked in his clothes. He remained on the road for about half an hour. During this period, he was alive and blood was oozing. He met with Investigating Officer on the place of occurrence at about 11:00 to 12:00 a.m. He has shown his torch to Investigating Officer on the place of incident. He did not know as to whether any recovery memo was made or not. He did not go to the police station. When he reached on the spot, the accused were in the, field of Ram Bachan. He had obtained sale deed of plot No. 196, in which Ram Bhawan was a marginal witness. A litigation was initiated in that respect. After hue and cry, several person reached on the spot. They all come together from his house. He was separated after reaching the field of Ram Lakhan. He did not remember that any field was vacant near his house. 13. We have considered the arguments of the counsel for the parties and examined the record. According to the prosecution, on 09.11.2000 at 4:00 a.m., when Ram Bhawan Kurmi was going on brick-paved road of village Kalupar from village, from village Saddopur to his house at village Bhairopur, Shankar exhorted and said that here was Ram Bhawan, the Pradhan, kill him by bullets and bomb. On which, Hari Kishun armed with country made pistol and Ram Bhawan and Shankar armed with bomb made indiscriminate attack upon Ram Bhawan Kurmi, causing injury to him. On which, Hari Kishun armed with country made pistol and Ram Bhawan and Shankar armed with bomb made indiscriminate attack upon Ram Bhawan Kurmi, causing injury to him. FIR of the incident was lodged at 05:00 a.m. at police station Ghosi, which was at a distance of 6 kilometer from the place of occurrence. Ram Bhawan Kurmi died in the way to District Hospital Mau, then his dead body was brought to the police station Ghosi, where his Inquest (Ex-Ka-22) was prepared by SSI Ram Adhar Mishra. Inquest (Ex-Ka-22) was proved by SI Ram Sanehi Yadav (P.W. 8). In Inquest (Ex-Ka-22), on the top, Case Crime No. 537 of 2000, under Section 302, IPC was mentioned. Against the column "Date and time for making report at the police station" was mentioned as "09.11.2000 at 7:45 hours" and in the column "The name of the village, within the limit of which the dead body was found" was mentioned as "Kalupar". In Rapat No. 11, of G.D. dated 09.11.2000 at 7:45 hours, it has been mentioned that the constable Surendra Yadav was sent along with injured for his medical examination to PHC Ghosi. He came back and informed that from PHC Ghosi, he was referred for District Hospital Mau. Ram Bhawan died in the way to Mau. Inspector Nand Lal Yadav (P.W. 6) has stated that he had recorded statement of the deceased at PHC Ghosi. While Dr. A.K. Srivastava (P.W. 4) has stated that when Ram Bhawan, was brought to PHC Ghosi, he was likely to die. He was having acute pain and he was not able to speak. In Post-mortem Report (Ex-Ka-4) digested food was found in his stomach although, according to Ram Yadee (P.W. 1), he had taken meal on 08.11.2000 at 9:00 p.m. In check FIR, Case Crime No. 537 of 2000, under Section 307, IPC was mentioned. Date and time of lodging FIR has been mentioned as 09.11.2000 at 5:00 a.m. It appears that when in the morning, the people found Ram Bhawan, in serious injured condition then information was given to his house and FIR was lodged. It does not appear probable that food would remain in stomach for 7 hours. Date and time of lodging FIR has been mentioned as 09.11.2000 at 5:00 a.m. It appears that when in the morning, the people found Ram Bhawan, in serious injured condition then information was given to his house and FIR was lodged. It does not appear probable that food would remain in stomach for 7 hours. Incident appears to have been caused some time before 4:00 a.m. It also does not appear probable that Bhikham (P.W. 2) would take 2:45 hours in the way of Ghosi to Mau, while Ram Bhawan was taken in his jeep. FIR appears to be ante-timed. 14. Theory of going Ram Bhawan, Ram Yadee and Bhikham going to the house of Manager Yadav on 08.11.2000 and staying at his house in night is also doubtful. Ram Yadee (P.W. 1) has stated that in the evening of the date prior to the incident, he, Ram Bhawan and Bhikham had gone to the house of Manager Yadav for eating meal. As in eating food, it had become late night, they slept there. Bhikham (P.W. 2) has stated that they had gone to the house of Manager Yadav for discussing in the matter related to gaon sabha. In cross-examination, he has stated that prior to this incident, they had never gone to the house of Manager Yadav for eating feast. Distance between his house and the house of Manager Yadav was one kilometer. They reached the house of Manager Yadav at 3:00 to 4:00 p.m. Manager Yadav (P.W. 3) has stated that in the evening of the incident, Ram Bhawan Kurmi, Bhikham and Ram Yadee, residents of Bhairopur had come to his house and at his house conversation relating to construction of the chak road in front of his house was going on. He has specifically denied that on that day either there was any feast or any other function at his house. Statements of the witnesses of fact in this respect are not consistent. He has specifically denied that on that day either there was any feast or any other function at his house. Statements of the witnesses of fact in this respect are not consistent. If Ram Bhawan had gone to the house of Manager Yadav for discussing for construction of the chak road in front of his house, then in all probability, he would have returned on that very day as he had reached the house of Manager Yadav at 4:00 p.m. and distance between their houses was one kilometer only and according to the prosecution the deceased and the witnesses were having cycles and torches with them and therefore, it was more safe to return in first part of night. 15. If Ram Bhawan and the witnesses had slept at the house of Manager Yadav as it had become late night in eating meal and discussing the problem, then it was highly improbable for them to return at 3:30 a.m. as admittedly that day was a dark night. Similarly, the accused Shankar alias Rama Shankar was resident of village Bhairopur, Ram Bhawan Yadav was resident of village Jameen Subah (Cham-ariyawn) and Hari Kishun was resident of village Saddopur. The deceased was resident of village Bhairopur and was allegedly coming back from village Saddopur. Collecting the three accused of different villages at village Kalupar does not appear to be probable at 3:30 to 4:00 a.m. Even if it is taken that the accused were chasing the deceased, then also if the deceased did not return in night, there would be no hope of his returning in early morning. 16. According to the witnesses, they had seen the incident in the light of torches from a distance of 8-10 paces. But the accused did not try to target the witnesses. The witnesses have further stated that after the incident, they lifted the deceased and boarded him in jeep. His blood stains came on their clothes. Investigating Officer did not recover blood-stained clothes of the witnesses. Bhikham was the son of the deceased. It does not appear probable that the father and the son both will stay at the house of Manager Yadav, which was at a distance of one kilometer, leaving the ladies and other members of the families at their house. Presence of the witnesses, on careful scrutiny of the testimonies, on the spot appears to be doubtful. 17. It does not appear probable that the father and the son both will stay at the house of Manager Yadav, which was at a distance of one kilometer, leaving the ladies and other members of the families at their house. Presence of the witnesses, on careful scrutiny of the testimonies, on the spot appears to be doubtful. 17. The deceased was a man of criminal nature and he might have several enemies. Several criminal cases were registered against him at the police station Ghosi. Possibility of his killing by some others cannot be ruled out. Manager Yadav (P.W. 3) has admitted that he and his family member were accused in the murder case of Shri. Kishun, brother of Hari Kishun as such he was highly inimical to the accused. 18. There is no public witness of the recovery of country made pistol, two live cartridges and one live bomb. SSI Ram Adhar Mishra, who had investigated Case Crime Nos. 579 of 2000 and Case Crime No. 580 of 2000 did not appear in the witness box. As such, in the facts of the present case, the possibility of the recovery being planted cannot be ruled out. 19. Taking cumulative effect of the evidence, we are of the view that on the basis of the entire material available on the record, it will not be safe for the Court to uphold conviction of the accused appellants and they are entitled for benefit of doubt. 20. In the result, both the appeals succeed and are allowed. The judgment of Session's Judge, Mau, dated 18.02.2015, passed in S.T. No. 63 of 2001, State v. Shankar and others, arising out of Case Crime No. 537 of 2000, under Section 302/34, IPC), S.T. No. 61 of 2001, State v. Hari Kishun, (arising out of Case Crime No. 580 of 2000, under Section 5 of Explosive Substance Act, 1908) and S.T. No. 64 of 2001, State v. Hari Kishun, (arising out of Case Crime No. 579 of 2000, under Section 25 of Arms Act, 1959), P.S. Ghosi, district Mau, are set aside. The appellants are acquitted from the charges. They shall be set at liberty forthwith. The appellants shall furnish bonds in terms of Section 437, Cr.P.C. within one month of their release. 21. Office is directed to remit the original record to the court below and send a copy of the judgment for its compliance.