Jogendra Dom and Others vs The State of Bihar

Rajendra Prasad, J.—This criminal appeal is directed against the judgment and order of conviction dated 30th November, 1987, passed by Shashi Kumar Choudhary, 3rd Additional District and Sessions Judge, East Champaran, Motihari in Sessions Trial No. 141 of 1977/199 of 1987, whereby and whereunder the learned Additional Sessions Judge found and held appellant No. 1 (Jogendra Dom) guilty u/s 302 of the Indian Penal Code and convicted and sentenced him to undergo imprisonment for life and further found and held appellant No. 2 (Jira Dom), appellant No. 3 (Dasai Dom) and appellant No. 4 (Harendra Dom) guilty u/s 323 of the Indian Penal Code and convicted and sentenced them to undergo rigorous imprisonment for one year. As it appears the informant-Chirkut Malli (P.W. 1), alongwith his wife Tenia Devi (P.W. 2) and Choukidar-lndrajit Rai (P.W. 6) went to Chhauradano police station on 12.1.1977 at 7.30 A.M. and got his fardbeyan recorded. As disclosed by the informant-Chirkut Malli (P.W. 1), in yesterday evening after eating feast of funeral ceremony of grandmother of his villager Kailash Singh (P.W. 3) he (P.W. 1) along with his family members had returned his home at 8 O'' clock in the night and saw his Fufuwawat brother Radha Dom (deceased) sitting at his home. After taking meal P.W. 1 went to his house to sleep. His Fufuwawat brother Radha Dom (deceased) and his son Narayan Dom (P.W. 7) also went to another house to sleep. While P.W. 1 was still awaking, at 9 O'' clock in the night Jogendra Dom (appellant No. 1) of village Pansalwa, Jira Dom (appellant No. 2), Dasai Dom (appellant No. 3) and Narendra Dom (appellant No. 4) all of them of village Sukhlhiya entering into the house of P.W. 1 started assaulting him. On hulla raised by P.W. 1 his Fufuwawat brother Radha Dom (deceased) came there. As per P.W. 1, Jogendra Dom (appellant No. 1), who was armed with gun fired at P.W. 1 but as P.W. 1 bent down the firing of Jogendra Dom (appellant No. 1) hit his brother Radha Dom (deceased) on thigh on his left leg. Radha Dom (deceased) fell down there. The injury was bleeding profusely. P.W. 1 bandaged the injury with cloth but bleeding did not stop and Radha Dom died On hulla raised by P.W. 1, Narayan Malli (P.W. 6), wife of Radha Dom (deceased) and neighbours came and identified the accused persons. After the villagers collected there all the accused persons fled away towards South. Wife of Radha Dom (deceased) claimed to have identified the accused persons.

Cause of occurrence, as disclosed in the FIR is said to be the dispute between informant and appellant for the caste profession. The informants being resident of Tinkoni used to serve Tinkoni villagers and in turn used to attend functions including feast of villagers of Tankoni as village Dom. Appellant No. 1 being Dom of village Sulkhaiya had recently started not only serving Tinkoni village but also attending functions in village Tinkoni. Before alleged occurrence the informant had gone to eat in the feast on the occasion of Saradh ceremony of grandmother of one Kailash, resident of Tinkoni. Appellants were also there and informant had quarrel with the appellants.

As it appears, on the basis of fardbeyan of informant (P.W. 1) Chhauradano P.S. Case No. 2(1 )77 was registered against all the four appellants and the investigation of the case was taken up and the police after completion of investigation submitted charge-sheet u/s 302/34 IPC and Section 27 of Arms Act against all the appellants whereupon the cognizance was taken and the case was committed to the Court of Sessions for trial. On trial the learned trial court found and held appellant No. 1 (Jogendra Dom) guilty u/s 302 IPC and convicted and sentenced him to imprisonment for life and further found and held appellant No. 2 (Jira Dom), appellant No. 3 (Dasai Dom) and appellant No. 4 (Harendra Dom) guilty u/s 323 IPC and convicted and sentenced them to undergo rigorous imprisonment for one year.

The defence, as it appears from trend of cross examination, suggestions thrown to prosecution witnesses and the statements of accused appellants recorded u/s 313 Cr.P.C. is denial of charges levelled against them and false implication because of enmity. Further by examining D.W. 1, Patlu Malli, the appellants appear to have taken a specific defence that Chirkut Malli (P.W. 1) of village Tinkoni had purchased pigs worth Rs. 3,000/- from Radha Dom (deceased) and Chirkut Malli (P.W. 1) paid only Rs, 1,000/-towards price of pigs and Rs, 2,000/- was to be paid later on. On the alleged date of occurrence Radha Dom (deceased) along-with his wife had gone to village Tinkoni for realisation of balance amount of Rs. 2,000/-and Radha Dom (deceased) was killed by villagers of Tinkoni and this fact of killing Radha Dom (deceased) was informed by the wife of Radha Dom (not examined) to D.W. 1, Patlu Malli.

In order to prove its case the prosecution has examined as many as nine witnesses.

P.W. 1-Chirkut Malli, who is the informant of this case, stated that the occurrence took place before 7 1/4 years at 9 O'' clock in the night but he does not remember the day of occurrence. This witness alongwith his wife (P.W. 2) was sleeping in his hut and Radha Dom (deceased) was also sleeping in a Government house at a distance of ten hands. At that very time appellants-accused Dasai, Jira, Harendra and Jogendra came. A Dhibn (Deepak) was burning in the house of this witness and so this witness had identified all the appellants-accused. Appellant No. 1 (Jogendra) had small gun in his hand. Appellants-accused Jira and Dasai had Fatta in their hands and appellant-accused Harendra had a knife in his hand. All the appellants-accused started assaulting the informant resulting knife injury in his neck. Appellants-accused also assaulted the wife of this witness. Both the informant and his wife raised hulla upon which Radha Dom (deceased) came there. As per this witness appellant-Jogendra fired gun at Radha Dom causing injury resulting his death Thereafter this witness ran to village and called Choukidar and others. Radha Dom (deceased) had died and appellants-accused fled away towards South of his house. Witness Dasai Dom died. This witness has further stated that his village is Tinkoni where he used to sell Dauri etc. The family members of appellants-accused also sold Dauri etc. in that village which was objected to and for this reason for last six months this witness had differences with the appellants-accused. On the alleged date of occurrence there was occasion of Saradh ceremony of grandmother of Kailash (P.W. 6). Appellants-accused had also gone there and there had been quarrel. This witness has further stated that he had gone to police station where his statements were recorded and after hearing the statements he put his left thumb impression. As per this witness the statement of his wife was also recorded. Daroga had come to the place of occurrence which was shown by this witness. This witness identified the appellants-accused who were present in the court and claimed to identify other appellants-accused.

This witness has also been cross-examined by the defence at length. In his cross-examination this witness appears to have stated that after hearing hulla Radha Dom (deceased) came when Jogendra (appellant No. 1) fired at this witness but this witness was saved and firing hit Radha Dom resulting his death. This witness has also stated in his cross-examination that on the alleged date of occurrence he had 17-18 pigs (Suar) and had sold some of pigs. This witness had no money on the alleged date of occurrence. He has further stated that villagers had not come at the time of occurrence but villagers came after the appellants-accused had fled away. Thereafter this witness had gone to police station. It further appears that this witness was recalled for cross examination and in his further cross examination this witness appears to have stated as to detail of place of occurrence where the occurrence took place. This witness further stated that firing on Radha (deceased) was opened from east when Radha (deceased) was coming towards east, he was hit. Choukidar and villagers came after one and half hour of the death of Radha (deceased). This witness was feeling thirsty and so he could not say anything to anyone. He has further stated that after the death of Radha (deceased) his wife, who was in another room, came and started weeping. This witness denied that he and his men had committed murder of Radha (deceased) and implicated accused because of enmity. This witness has also stated that he cannot say wife of Radha went away. This witness has further denied that wife of Radha Dom is not brought and examined as she would not have supported the prosecution case.

P.W. 2, Tenia Domin, is the wife of informant-Chirkut Malli (P.W. 1). As per this witness occurrence took place at 9.00 hours in the night before 7x1/4 years but she does not know the date of occurrence. She has stated that deceased Radha Dom was her Devar and resident of Kharua Mauza. On the alleged date of occurrence Radha Dom (deceased) had come to her home for some work. At that time she and her husband (P.W. 1) was sleeping in his room and a lamp was burning. At that time Dasai, Jira, Jogendra and Harendra came. This witness had identified them. As per this witness accused persons were having knife, gun and Fatta. Jogendra (appellant No. 1) was having gun in his hand and Harendra (appellant No. 4) was having knife in his hand. There was no door in his room. All the four accused assaulted this witness and her husband (P.W. 1). This witness was assaulted with Fatta and Harendra assaulted her husband with knife. Both this witness and her husband raised hulla upon which when Radha (deceased) came there Jogendra (appellant No. 1) fired gun on him with the result he fell down. This witness has further stated that her husband raising hulla went towards village and came with Choukidar and some persons. Radha Dom (deceased) died there. All these four accused fled away towards south. This witness had identified all the four accused. She has further stated that she alongwith her husband went to police station. This witness further identified appellant Jira and Harendra, who were present in the Court and claimed to identify remaining accused persons. This witness also stated that there had been differences with accused persons for last six months. In her cross-examination this witness has stated that she had seven to eight pigs. She had 10 to 12 pigs on the date of occurrence. Out of which some pigs had been sold for Rs. 1,000/- and had purchased pigs with that amount on the alleged date of occurrence. She has further stated that all the four accused had entered into her room one by one. Jira had entered first and thereafter Harendra came. Radha Dom was sleeping in a Government house which was at some distance from the hut of this witness. Only after hulla Radha Dom (deceased) had come from room where he was sleeping. It was a dark night but a lamp was burning in the room. When accused persons entered this witness was sleeping in her room. He has further stated she slept after burning lamp and that too in dark night. Only she and her husband were in her room. She has further stated that accused persons assaulted her and her husband. By that time she awoke. Radha (deceased) came on hulla. As per this witness Jogendra fired his gun at Radha and this witness was assaulted with Fatta. This witness has further stated that Jogendra fired after coming out from room. This witness and her husband gave their statements at police station. It appears that this witness has also been recalled for cross-examination. She has stated that there was one Government house and two small houses were built by this witness. Radha (deceased) was sleeping in the Government house which was at a distance of 10 feet. There was no firing in that house. At the time of firing this witness and her husband was in her house. As per this witness Radha (deceased) died at a distance of five to seven hands from her house.

P.W. 3, Kailash Singh, also stated that the occurrence is of seven-eight years before. He has further stated that the day on which Radha was murdered there was saradh of grand-mother of this witness. He does not know day and time of occurrence. He later on came to know that Radha Dom was murdered. In his cross-examination this witness has stated that he had no knowledge about the occurrence.

P.W. 4, Jokhu Sao, has stated that before seven to eight years Radha Dom was murdered but he does not remember day and time of occurrence. He has further stated that Radha Dom was murdered. This witness has further stated that before 3-4 days of the alleged occurrence there was saradh ceremony of his uncle. Chirkut Dom and his family member came to feast. Doms of Sukhaliya village do not come to eat in saradh ceremony of his village. He does not know doms of Tinkoli and Sukhaliya had differences on such point. In his cross-examination this witness has stated Tinkoni and Sukhaliya villages are adjacent villages. The village of this witness is a big village and people of all castes live there. He does not know about the killing of Radha Dom.

P.W. 5, Ram Dayal Rai, is the Choukidar. He has stated that Radha Dom was murdered before 8 to 8 1/2 years but he does not know the day. As per this witness occurrence took place at 9-10 O''clock in the night. At that time this witness was on patrolling duty. He heard hulla coming from Dom toll. This witness went to the house of Chirkut Dom (P.W. 1). He found Chirkut and his wife injured and weeping. Radha Dom had died and was sufficiently injured. His injury was bleeding. This witness had talked with Chirkut Dom who had told this witness that there had been quarrel with the doms of village Sukhaliya and so Jira, Dasai, Harendra and Jogendra assaulted them. Chirkut Malli also told this witness that Jogendra Dom had fired his gun at Radha Dom and other three accused assaulted his wife. Chirkut also told this witness that he had identified accused in the light of Diya (lamp). This witness claimed to identify all the accused persons present in the Court. This witness has further stated that Choukidar-lndrajeet Rai and some villagers had also collected there to whom also Chirkut Dom had narrated the occurrence in detail. This witness has further stated that this witness had asked Chirkut Dom to go to police station in the night itself but because of fear he did not go to police station in the night. This witness and Indrajeet (P.W. 6) had watched the dead body in the night. In the morning Indrajeet, Chirkut and others went to police station. This witness continued watching dead body. He further stated that Darogaji came and took up the investigation and sent the dead body for post mortem. This witness has also been cross-examined and in his cross-examination this witness appears to have stated that 60-70 villagers collected there but none of the villagers had told this witness about the occurrence or named murderer. This witness has further stated that he and Choukidar both had no fear and had asked the informant to go to police station in the night itself for lodging the case but the informant (P.W. 1) told this witness that he had fear in the night. This witness has further stated that in the morning only after thinking the informant (P.W. 1) became ready to go to police station. As per this witness he had not recorded what was told by Chirkut (P.W. 1). This witness has further stated that he had stated before police that Jira, Harendra and Dasai had assaulted Chirkut and his wife. He denied that he had given false evidence.

P.W. 6., Indrajeet Rai, Choukidar is a tendered witness. In his cross-examination this witness has stated that he along-with Ramdayal Choukidar (P.W. 5) had gone to the house of Chirkut when 25-30 villagers were there. This witness had also gone to police station in the morning.

P.W. 7., Narain Dom, is son of informant and as per prosecution story on the alleged date of occurrence he was sleeping with the deceased. He has further stated that about 8 1/2 years ago at about 8-9 O'' clock in the night he was sleeping in western room and Radha Dom (deceased) was sleeping in northern room. Wife of Radha Dom (deceased) was also sleeping with Radha. He further stated that when there was hulla at 9 O'' clock in the night he fled to village and told villagers and when returned with villagers he saw Radha Dom (deceased) lying dead. As per this witness wife of Radha Dom and his father etc. told that Dasai, Harendra, Jira and Jogendra had murdered Radha Dom (deceased). This witness further identified appellants, Harendra and Jira present in the court and claimed to identify remaining accused Dasai and Jogindra. This witness also stated that cause of occurrence was sale of Dakra, Dauri etc. and eating of feast and because of that Radha was done to death. This witness further stated that the wife of the deceased is alive but she is not in the village. This witness also not talked with the wife of Radha Dom for giving evidence. This witness also not talked with the wife of deceased about the incident. This witness specifically stated that he has no knowledge who had murdered Radha Dom (deceased). As per this witness he asked all as to who had killed Radha Dom. This witness has further stated that he has stated before the police that the wife of Radha Dom had told him as to who had killed Radha Dom. He denied that he had given false evidence.

P.W 8., Dr. B.D.Pandey, who had performed post mortem on the dead body of Radha Dom (deceased). As it appears from the statement of this witness he found following ante mortem injuries on the dead body of Radha Dom (deceased):--

(i) One circular lacerated wound size about 2" x 2" into medial surface of left thigh about 4" below the ingieunal ligament Probe passes deep back wound and upward colour black margin lacerated and scortched. Blood clot present.

(ii) One circular lacerated wound about 3/4" x 3/4" about 2" below the left side of the scratum on inner surface of lert thigh. Probe passes deep backward and upward. Margin black and scortched.

According to the doctor cause of death was due to shock and haemorrhage due to above injuries.

In his cross-examination this witness stated that he did not know the deceased from before. He further stated that the shots were fired from a very close range. Exact time of death cannot be said. He had given an approximate time of death.

P.W. 9, Safi Ahmad, appears to be the investigating officer of this case. He stated that on 12.1.1977 he was posted at Chhauradano police station. On that day Chirkut (P.W. 1) alongwith his wife Tenia Devi (P.W. 2) and Choukidars, Ram Dayal Rai (P.W. 5) and Indrajit Rai (P.W. 6) came to police station. This witness got statements of Chirkut Malli (P.W. 1) recorded. Chirkut Malli (P.W. 1) put impression of his left thumb on his statements after finding the same correct. This witness proved F.I.R. marked Ext. 2. Thereafter this witness prepared injury report of Chirkut Malli (P.W. 1) and sent him to doctor. This witness also recorded further statement of Chirkut Malli (P.W. 1). He proved injury report marked Ext. 3. This witness further inspected the place of occurrence. As per this witness place of occurrence is Foos house of Chirkut (P.W. 1) situated at eastern side of western tola in Tinkoni village. This was a eastern facing palani made of Foos and Tati having neither doors nor Fatak. Marai was of 7 hands x 5 hands dimension. Pual was spread in the Marai. Towards west of Marai there was a dilapidated Government house made of bricks and tiles and deceased Radha Dom and Narain Dom were said to have slept in that house. This house had also neither doors nor Fatak. As per this witness he found blood towards south-west of the room of the informant and south of the room of deceased Radha Dom. This witness was told that after Radha Dom died he was brought in room and got lied. As per this witness Radha Dom died where sufficient blood was found fallen. Blood was also found there where Radha Dom was got lied. There was a Dhibri at the door of the informant, it was empty. This witness had collected the blood stained earth in presence of witnesses and proved seizure list marked Ext. 4. This witness further examined the dead body and prepared inquest report and also proved inquest report marked Ext. 5. Thereafter through constable No. 19, Chandra Sekhar Tiwary and constable No. 13, Ram Sanjivan Mishra sent dead body for post mortem examination. As per this witness towards about 20 yards east of the place where informant was sleeping there was a west facing Marai of Foos which had neither doors nor Fatak. Daughter-in-law of informant and wife of deceased had slept there. Towards North of that Marai there was a Khohar of pigs and north of that there was a Marai of Dasai Dom and Chodhur Dom and the place of occurrence at a distance of 50 yards. There was no house of other caste at the place of occurrence. Towards south of place of occurrence there was village road passing east to west. This witness further took the statement of witnesses and handed over charge of investigation to one Shri Matukdhari Verma who had sent blood stained earth to Forensic Science Laboratory, Patna for examination. In his cross-examination this witness stated that before Chirkut (P.W. 1) no one had given information about the occurrence. This witness had taken statements of Choukidars at Police Station. As per this witness he found blood at two places. This witness had also taken the statement of informant at the Police Station itself. He has not mentioned the height of Marai of informant. Tinkoni village is a big village. This witness does not remember that he had taken statement of Sarpanch or Mukhiya of that village. This witness had found blood inside the room also. As stated by this witness Pual was spread in room in which deceased was found. Chatai was not spread there. No blood was found on Pual. This witness has further stated that he had not gone to the house of Radha Dom. He had recorded the statement of wife of Radha Dom.

As against this defence also examined as many as two witnesses, namely, Patlu Malli (D.W. 1) and Krishna Kishore Kumar (D.W. 2).

D.W. 1, Patlu Malli stated that Radha Dom deceased was his uncle and lived with him. Deo Laxmi was the wife of Radha Dom. Chirkut Malli of village Tinkoni had purchased pigs worth Rs. 3000/- from his uncle (deceased) and had paid only Rs. 1000/- and Rs. 2000/- was to be paid later on. As per this witness his uncle Radha Dom (deceased) alongwith his wife had gone Tinkoni village for realisation of balance amount of Rs. 2000/-. As per this witness his aunt (wife of deceased Radha Dom) came to him and informed that villagers of Tinkoni had killed Radha Dom (deceased). As per this witness his aunt (wife of deceased Radha Dom) had gone twice to give evidence in this case but her evidence was not taken. She had also filed an affidavit. This witness produced affidavit which was marked ''X'' for identification. This witness identified all the accused persons. This witness stated that the accused persons had not killed his uncle (deceased Radha Dom). This witness also stated that his aunt (wife of Radha Dom) died. This witness has also been cross-examined at length and it appears from his cross-examination that this witness remained consistent in his cross-examination to the extent that wife of Radha Dom (deceased) had sworn an affidavit. In his cross-examination this witness also stated that wife of Radha Dom (deceased) never named who had killed Radha Dom and how Radha Dom was killed.

D.W. 2 Krishna Kishore Kumar is a formal witness who has proved an affidavit sworn by Deo Laxmi, wife of deceased Radha Dom, marked exhibit ''A''.

The only point for consideration shall be whether the prosecution has been able to prove and establish the charges levelled against the appellants beyond shadow of reasonable doubt and in the manner as alleged.

Learned counsel Mr. Krishna Prasad Singh appearing on behalf of the appellants submitted that this is an out and out false case brought against the appellants with whom the informant had enmity from before the occurrence and the evidences brought on record by the prosecution if appreciated with care and caution the evidences are not such so as to prove and establish the charges levelled against any of the appellants beyond shadow of reasonable doubt and in the manner as alleged. The main contention of the learned counsel for the appellants was that though, as per prosecution story, son of the informant (P.W. 7) is said to have been sleeping with the deceased, this P.W. 7 being son of the informant did not support the prosecution case that it was appellant No. 1 who had fired resulting death of the deceased Radha Dom. Further, as per prosecution story wife of deceased Radha Dom was also sleeping there with deceased Radha Dom but the prosecution neither examined the wife of Radha Dom nor has given satisfactory explanation of her non-examination whereas the defence by examining D.W. 1 brought on record that wife of deceased Radha Dom had informed that her husband Radha Dom was done to death by the villagers. The contention of the learned counsel for the appellants is that non-examination of wife of deceased Radha Dom, who, as per prosecution story, at the relevant time of occurrence was sleeping with her husband (deceased) without any satisfactory explanation is fatal to prosecution story. Learned counsel for the appellants further submitted and contended that out of nine witnesses examined by the prosecution, P.W. 1, the informant and P.W. 2, his wife, are only eye witnesses and none of other witnesses examined by the prosecution is the eye witness to the actual occurrence of killing of deceased Radha Dom and assault on informant and his wife. Learned counsel for the appellants also referring statement of P.W. 5.", Ram Dayal Rai-Choukidar pointed out that this witness had asked the informant to go to police station and report the matter just after the occurrence, which took place at 9-10 O'' clock in the night but informant had refused to go to police station and the informant went to police station in the morning after giving thought which indicates inordinate delay in lodging the case and false implication. The contention of the learned counsel for the appellants is that as there is admitted enmity between the parties from before and specific defence taken by the prosecution side is that deceased, Radha Dom was done to death by the villagers because of differences of payment of balance amount of purchase of pigs by informant himself, such inordinate delay in lodging F.I.R. by the informant is also a circumstance which indicates false implication of the appellants in this case because of enmity. The learned counsel for the appellants also pointed out that the prosecution did not examine any independent witness in this case and the prosecution story itself indicates that deceased had neither enmity with the appellants so that appellants might have any motive to kill the deceased. On these grounds learned counsel for the ap-pellants submitted and contended that prosecution has not been able to prove and establish the charges levelled against any of the appellants and so they deserve to be acquitted.

As against this learned A.P.P. appearing on behalf of the State submitted and contended that the prosecution has been able to prove and establish the charges levelled against the appellants beyond shadow of reasonable doubts and so the learned trial court has rightly passed judgment and order of conviction against all the appellants.

It is evident from the facts on record that cause of occurrence is said to be admitted enmity between the informant and the appellants who belong to common caste of Dom relating to dispute between them for the caste profession. The informant being resident of Tinkoni used to serve Tinkoni villagers and in turn used to attend functions including feast of villagers of Tinkoni as village Dom and appellant No. 1 being Dom of village Sulkhaiya had recently started not only serving Tinkoni village but also attending functions in village Tinkoni. Before alleged occurrence the informant had gone to eat in the feast on the occasion of Saradh ceremony of grandmother of one Kallash resident of Tinkoni. Appellants were also there and informant had quarrel with the appellants. Besides the admitted fact of enmity between the informant and the appellants the prosecution though examined as many as nine witnesses it failed to examine any independent witness and out of nine witnesses only two P.W. 1, the informant himself and P.W. 2 the wife of the informant who claimed to have seen the occurrence are relations and so highly interested. It is settled principle of law that the statements of such highly interested witnesses are to be examined with great care and caution. Since the parties are in inimical terms from before the chance of false implication of appellants by informant and also chance of committing offence by appellants may be equal and so in such cases the quality of evidences shall have to be of such nature that such evidences must prove and establish the charges levelled against the appellants beyond shadow of reasonable doubt and in the manner as alleged. We shall take into consideration the nature and quality of evidences brought on record and see whether the evidences brought on record are cogent, consistent and reliable.

Taking into consideration the statements of as many as nine witnesses examined by the prosecution. It is evidently clear that though prosecution examined nine witnesses only two witnesses P.W. 1, Chirkut Malli and P.W. 2, Tenia Domin are the eye witnesses to the alleged occurrence. These witnesses are apparently not only enimical to the appellants from before the occurrence but they are also related to each other. On a plain reading of the statements of these witnesses, it is evidently clear that there is major contradictions in their statements on the very point of manner of firing by appellant No. 1, Jogendra Dom inasmuch as, as per fardbeyan appellant No. 1, Jogendra Dom had fired at informant but as per statement of informant in court and also statement of P.W. 2, Tenia Domin in court, appellant No. 1, Jogendra Dom had fired directly at Radha Dom. This is apparently a major contradictions in the statements of P.W. 1 and P.W. 2 as to manner of occurrence. In view of such major contradictions in the statemerits of P.W. 1 and P.W. 2, who are not only inimical with the appellants but also related to each other, we are of the view that it will not be safe to rely upon the statements of P.W. 1 and P.W. 2. Besides, though as per prosecution story and also statements of P.W. 1 and P.W. 2 in court, the occurrence appears to have taken place in the room in which P.W. 1 and P.W. 2 were sleeping, but when we take into consideration the statements of I. O., P.W. 9, Safi Ahmad, it appears that the statements of P.W. 9, who had investigated the case, do not support that death had occurred in the house in which P.W. 1 and P.W. 2 were sleeping. The Statements of I.O. as to the place of occurrence is not clear and the same is vague. Besides, as per prosecution story, wife of deceased, Radha Dom was sleeping with him but she has neither been examined nor prosecution has given any explanation as to why she was not examined and so non-examination of wife of deceased, who as per prosecution, was sleeping with deceased, Radha Dom creates doubt as to whether the occurrence had taken place in the manner as alleged and whether it was the appellants who had committed offence alleged against them in the manner as alleged in the fardbeyan of the informant.

Taking into consideration the facts and circumstances in which offence is said to have been committed and also the evidences brought on record by the prosecution and defence taken by the appellants-accused in its entirety, we have no hesitation to hold that prosecution has failed to prove and establish the charges levelled against appellants beyond shadow of reasonable doubts and in the manner as alleged and so all the four appellants are found not guilty and they deserve to be acquitted. In the result, this appeal is allowed and the judgment and order of conviction, passed by 3rd Additional District & Sessions Judge, East Champaran, Motihari in Sessions Trial No. 141 of 1977/199 of 1987 is set aside and the appellants are discharged from liability of their bail bonds.

Rekha Kumari, J.

I agree.