V.N. Sinha, J.This reference is arising out of judgment and order of sentence dated 6.8.2010 and 12.8.2010 respectively passed by the Additional Sessions Judge-I, Bhojpur at Ara in Sessions Trial No. 72/1999 whereunder 11 of the 15 accused put on trial have been convicted for the offence under Sections 302, 148, 302 /149 of the Indian Penal Code and Section 27 of the Arms Act. Three out of eleven convicts, namely, Chandra Bhushan Singh, Sudarshan Pandey and Ravindra Singh have been sentenced to death and the reference is for confirmation of their death sentence. The remaining convicts, namely, Arvind Pandey, Kameshwar Rai @ Kameshwar Singh, Sri Kant Pandey, Dadan Pandey, Salik Pandey @ Shaligram Pandey, Janeshwar Pandey, Anil Kumar Singh and Virendra Pandey have been directed to undergo R.I. for life. No separate sentence has been awarded to any of the convict under Sections 148, 302 /149 I.P.C. and Section 27 of the Arms Act. The appeals have been filed by the 11 convicts for setting aside the judgment of conviction and order of sentence. Prosecution case as set out in the fardbeyan, Ext. 4 of the informant Uma Shankar Singh, P.W. 3 recorded by the S.I. Satyendra Kumar Singh Officer in Charge of Charpokhari P.S., P.W. 14 on 11.5.1998 at 8.15 P.M. is that on the same day at about 7.30 P.M. while he and his brother Sunil Kumar Singh was operating the flour mill in Nagri market a mob comprising of 80-90 extremists of Ranveer Sena variously armed with gun and rifle came to his flour mill, spread out in the market and resorted to indiscriminate firing. He could identify the miscreants in the generator bulb and full moon tit night. His brother Sunil Kumar Singh was shot at and injured by firing shot from rifle by Chandra Bhushan Singh, Bashistha Pandey and Arvind Pandey of village Nagri. Vijay Chaurasia who owns a betel shop was shot dead by firing rifle shot by Ravindra Singh and Sudarshan Pandey of village Havelipur and Nagri. Amarnath Chaurasia was shot dead by Lal Mohar Singh and Kameshwar Singh. Sudarshan Paswan who had come to take betel at the shop of Vijay Chaurasia was shot dead by Sri Kant Pandey of village Nagri, Kedar Rai and Jagdayal Rai of village Bhairodih, Lal Babu Paswan, who also came to take betel at the shop of Vijay Chaurasia, was shot dead by firing rifle shot by Salik Pandey of village Malaur, Rajendra Singh and Prince Kumar of village Havelipur. Bashistha Sah who has his grocery shop in Nagri market, was shot dead by Anil Singh, Ramakant Pandey and Jugeshwar Singh of village Nagri. Gaffar Ansari who worked as tailor in the Nagri market, was shot dead by Barmeshwar Singh of village Makhdumpur, Bisheshwar Rai of village Sikrahatta, Ram Bachan Singh of village Havelipur and Sri Bhagwan Pandey of village Malaur, Ram Ashish Paswan, who had come to make purchase in Nagri market and was going with his purchased items, was shot dead by rifle shot fired by Virendra Pandey and Gauri Pandey of village Nagri. Bharosa Ali @ Kayamuddin, P.W. 6, who was also coming with his purchased items from Nagri market, was shot at and injured by Ashok Singh and Vijay Singh. Ayodhya Chaurasia was shot dead by rifle shot fired by Dadan Pandey and Sri Kant Pandey, son of Bachcha Pandey. Bablu Pandey, who also owns a betel shop in Nagri market, suffered gun shot injury. Fardbeyan further includes the name of M/s. Kanhaiya Pandey, Zalim Pandey, Krishna Pandey, Brij Nandan Pandey, Sunil Pandey, Ranjit Rai, Vijay Choudhary, Bimlesh Pandey, Awadhesh Pandey, Dindayal Pandey, Dinesh Rai, Jai Gopal Pandey, Virendra Pandey, Shiv Kumar Pandey, Manish Rai, Nand Gopal Pandey, Baidyanath Pandey, Gupteshwar Pandey, Lal Mohar Pandey, Prayag Pandey, Upendra Pandey, Bhagirath Pandey, Deonath Rai as accused. Fardbeyan also includes the name of the witnesses, namely, M/s. Dinesh Kumar Chaurasia, P.W. 1, Rajesh Sah, Gupteshwar Paswan, Shiv Kumar Paswan, P.W. 12 Jamun Mian, Sri Bhagwan Paswan, Deo Bilash Singh, P.W. 5 Arvind Singh as witnesses of the occurrence. Out of the aforesaid eight witnesses of the occurrence, five of the following witnesses, namely, M/s. Deo Bilash Singh, P.W. 5 Ram Kumar Ram, P.W. 2, Dina Nath Ram, P.W. 7 Arvind Kumar Singh, Dinesh Kumar Chaurasia, P.W. 1 also put their signature over the fardbeyan as witness of the occurrence besides the signature of informant Uma Shankar Singh, P.W. 3.

2. In support of its case the prosecution has examined the following 15 witnesses, namely, P.W. 1 Dinesh Kumar Chaurasia, P.W. 2 Ram Kumar Ram, P.W. 3 Uma Shankar Singh, P.W. 4 Tengari Sah, P.W. 5 Deo Bilash Singh, P.W. 6 Md. Kayamuddin Ansari, P.W. 7 Dinanath Ram, P.W. 8 Dr. Virendra Kumar Rai, P.W. 9 Dr. Sri Krishna Chandra, P.W. 10 Dr. Nawal Kishore Prasad Sinha, P.W. 11 Dr. Surendra Kumar Prasad (the four Medical Officers who conducted the post mortem on the dead body of the 10 deceased), P.W. 12 Shiv Kumar Paswan, P.W. 13 Kamlesh Pandey, P.W. 14 Satyendra Kumar Singh and P.W. 15 Laxman Ram, the two Investigating Officers who conducted the investigation and submitted charge-sheet.

3. P.W. 1 is an eye witness. He has stated in his examination-in-chief that on 11.5.1998 at about 7.30 P.M. while he was closing his grocery shop several miscreants came to his shop armed with rifle, gun and resorted to firing. Amongst the miscreants he could identify five of the appellants, namely, Sudarshan Pandey, Ravindra Singh, Kameshwar Ram, Salik Pandey, Sri Kant Pandey son of Bachcha Pandey and others. He further stated in his examination-in-chief that he saw M/s. Ravindra Singh and Sudarshan Pandey firing shot at his father Vijay Narayan Chaurasia who was selling betel at his betel shop resulting in his death. He also saw his brother Amarnath Chaurasia being shot dead by Kameshwar Singh, Lal Mohar Singh. He further stated that Sudarshan Paswan who was standing near the betel shop of his father was shot dead by Sri Kant Pandey, son of Suryadeo Pandey, Jagdayal Ram, Kedar Ram. He also stated that Lal Babu Paswan was shot dead by Salik Pandey, Rajendra Singh and Prince Kumar. Gaffar Ansari who was selling eggs was shot dead by Bisheshwar Singh, Ram Badan Singh and Sri Bhagwan Pandey. His elder brother Ayodhya Chaurasia was shot at and injured by Sri Kant Pandey, son of Bachcha Pandey and Dadan Pandey, whereafter he was moved to the Sadar Hospital, Ara where he succumbed to the injury. He further stated that after the occurrence Officer in Charge, Charpokhari P.S. had come to the place of occurrence and recorded the fardbeyan of Uma Shankar Singh as also his statement over which he also put his signature. Having named the miscreants, P.W. 1 also identified Janeshwar Pandey, Salik Pandey, Dadan Pandey, Sudarshan Pandey, Kameshwar Ram, Sri Kant Pandey who were present in dock. P.W. 1 further claimed that he can identify other miscreants who were identified by him at the time of occurrence but are not present in court. P.W. 1, however, stated in paragraph 10 of his cross-examination that at the time of occurrence he was inside his grocery shop. In paragraph 11 he further clarified that he came out of his grocery shop 5-7 minutes after, the firing stopped. He further stated in paragraph 12 of the cross-examination that in his examination-in-chief he has incorrectly stated that after the occurrence Officer in Charge had come to the place of occurrence and has recorded the fardbeyan of Uma Shankar Singh and his statement. In paragraph 15 of his cross-examination P.W. 1 has refuted the suggestion of the defence that he has not named the appellants and others as miscreants who resorted to indiscriminate firing, killing his father, brother and others in his statement before the Officer in Charge.

4. P.W. 2 Ram Kumar Ram has also stated in his examination-in-chief that on 11.5.1998 at about 7.30 P.M. he was at his home in village Nagri and at that time in Nagri market human massacre had taken place. After one hour of the occurrence he came to the place of occurrence and found Ram Ashish Ram, Gaffar Ansari, Vijay Chaurasia, Amarnath Chaurasia, Ayodhya Chaurasia, Babul Pandey, Sunil Singh, Bashistha Sao and others lying killed and drenched in blood. He also stated that he had signed the inquest report of deceased Ram Ashish Ram. In paragraph 4 of the examination-in-chief he stated that he does not know the name of assailants. In paragraph 5 he states that he has not given any statement to the police. In paragraph 6 he denied the suggestion that having heard the sound of firing he came to the place of occurrence and learnt from Uma Shankar Singh and Dinesh Chaurasia that 40-50 extremists of Ranvir Sena variously armed had come to Nagri market and resorted to indiscriminate firing killing so many persons. He also denied the suggestion in the same paragraph that he had identified M/s. Arvind Pandey, Bashistha Pandey, Virendra Pandey, Dadan Pandey, Sudarshan Pandey of village Nagri, Salik Pandey of village Malaur and Dindayal Pandey and Lal Mohar Pandey of village Bhairodih amongst the assailants. In paragraph 7 he further stated that it is incorrect to suggest that he has come in collusion with the accused persons. In paragraph 8 he further stated that when he reached the place of occurrence there was commotion but he could not learn about the name of the assailants. In paragraph 9 he states that he remained at the place of occurrence for the whole night as one of the deceased Ram Ashish Ram is his agnate and uncle. He further stated that Officer in Charge had taken signature from him on a blank paper.

5. P.W. 3 Uma Shankar Singh is the informant. He has stated in his examination-in-chief that on 11.5.1998 at 7.30 P.M. which was a moon lit night he was operating his flour mill with a generator set and the help of his brother Sunil Kumar Singh. Meanwhile, 80-90 extremists of Ranveer Sena variously armed with rifle and gun came to his flour mill from Nagri village side. From amongst the extremists he could identify the 60 accused named in the F.I.R. including the appellants alongwith 25-30 unknown. In paragraph 2 of his examination-in-chief he has stated that his brother Sunil Kumar Singh was shot dead by Chandra Bhushan Singh, Bashistha Pandey and Arvind Pandey. Vijay Chaurasia was shot dead by Sudarshan Pandey, Ravindra Pandey. Amarnath Chaurasia was shot dead by Lal Mohar Singh and Kameshwar Singh, Ayodhya Chaurasia was shot dead by Sri Kant Pandey, son of Bachcha Pandey and Dadan Pandey. Sudarshan Paswan was shot dead by Sri Kant Pandey, son of Suryadeo Pandey, Jagdayal Rai and Kedar Rai. Lal Babu Paswan was shot dead by Salik Pandey, Rajendra Singh and Prince Kumar. Gaffar Ansari was shot dead by Bisheshwar Rai, Ram Bachan Singh and Sri Bhagwan Pandey. Bashistha Sah was shot dead by Janeshwar Pandey, Ramakant Pandey, Yugeshwar Singh and Anil Kumar Singh. Ram Ashish Ram was shot dead by Gauri Pandey, Virendra Pandey son of Amarnath Pandey. Babul Pandey @ Bimlesh Pandey was apprehended by Bashistha Pandey, Dadan Pandey, Sudarshan Pandey, Sri Kant Pandey, son of Suryadeo Pandey but was shot dead by Chandra Bhushan Singh. Bharosa Ali @ Kaymmuddin Ansari was also shot dead by them. In paragraph 3 of the examination-in-chief P.W. 3 further stated that at the time of occurrence 5 bulbs were lighted with the help of generator. He further asserted in the same paragraph that besides him Dinesh Kumar Chaurasia, Tengari Sah, Sheo Kumar Paswan, Sri Bhagwan Paswan and others had also seen the occurrence. He also stated that after the occurrence police officers from Charpokhari P.S. came to the place of occurrence and recorded his fardbeyan, which was written by the Officer in Charge who read over the contents to him, the witness having found the contents to be correct put his signature. The witnesses identified his signature which is marked as Ext. 1/1. He also states that besides him Dinesh Kumar Chaurasia also put his signature over the fardbeyan recorded on his statement. In paragraph-4 P.W. 3 states that in his presence inquest report of deceased Sunil Kumar Singh, Lal Babu Paswan was prepared over which he also put his signature, which is marked as Exts.-1/2, 1/3. He has claimed to identify all the assailants. In paragraphs 8, 9 of his cross-examination P.W. 3 has stated that the killing took place at six places, one after the other. He further stated in paragraph 9 that during the occurrence he climbed the roof of the adjoining shop with the help of a bamboo ladder which was also pulled up by him. His brother, however, could not climb the roof. In paragraphs 29, 30 P.W. 3 claims that he has also shown the ladder, the lighted bulb and the operating generator to the police personnel after they arrived at the place of occurrence. In paragraph 10 of the cross-examination he states that during the occurrence he was static at the roof. In paragraphs 12, 22 P.W. 3 states that the shot was fired from a distance of 10-15 feet. In paragraph 31 of the cross-examination he further stated that he was raising alarm and was brick batting the miscreants from the roof. In paragraphs 34, 35, 45 of his cross-examination P.W. 3 has given the topography of the place of occurrence. In paragraph 36 of the cross-examination he states that the miscreants first came to the mill and thereafter dispersed in Nagri market. In paragraph 55 of the cross-examination he accepts that P.W. 5 Deo Bilash Singh is related to him as maternal brother. In paragraph 56 of the cross-examination he had denied the suggestion that during the occurrence he had gone behind the wall and could not identify the miscreants.

6. P.W. 4 is Tengri Sah. He stated in his examination-in-chief that his only son Bashistha Sah was shot dead on 11.5.1998 in the evening at about 7.30 P.M. while he was washing his hand after urinating as many people fired at him. P.W. 4 further stated that he saw Janeshwar Pandey, Anil Singh and two others firing at Bashistha Sah and having suffered the gun shot he fell down. P.W. 4 also identified Janeshwar Pandey and Anil Singh in the dock. P.W. 4, however, did not identify Sri Kant Pandey and Arvind Pandey who were also present in the dock. P.W. 4, however, was not cross-examined as the defence took adjournment on payment of Rs. 60/- to the witness, as would appear from the order dated 29.7.2002. The court, however, directed P.W. 4 to appear for cross-examination on 30.7.2002. P.W. 4 did not appear for the cross-examination on 30.7.2002 and the proceeding was adjourned from time to time until 14.7.2005 when P.W. 5 was examined.

7. P.W. 5 is Deo Bilas Singh, maternal cousin of the informant, P.W. 3. He stated in his examination-in-chief that the occurrence took place about seven and half years ago in Nagri market in which 11 persons including Sunil Kumar Singh, Gaffar Mian, Vijay Chaurasia, Ayodhya Chaurasia, Ramnath Chaurasia and others were killed. P.W. 5, however, did not identify any of the assailants. P.W. 5 was declared hostile and was cross-examined by the APP. In paragraph 2 P.W. 5 stated that he had not informed the Officer in Charge that amongst the assailants he had identified Basistha Pandey, Arvind Pandey, Chandra Bhushan Singh. He further stated that it is incorrect to suggest that he is trying to conceal the assailants as he is afraid of them. He further admitted in paragraph 3 that Uma Shankar Singh, P.W. 3 is his co-villager and that he is known to Dinesh Chaurasia, son of Vijay Chaurasia. In paragraph 4 P.W. 5 stated that he visited the place of occurrence in the morning when he had met the family members of the deceased but they had not informed him about the assailants.

8. P.W. 6 Md. Kayamuddin Ansari stated in his evidence that on 11.5.1998 at about 7.30 P.M. he was at the egg shop of Gaffar Mian, from behind the wholesale food-grain shop (Gola) of Vijay Chaurasia 10-12 persons came and shot dead Vijay Chaurasia. P.W. 6 also suffered injury but he could not identify any of the assailants. In paragraph-4 P.W. 6 stated that he could not identify any of the miscreants even in the T.I. Parade. In paragraph 5 P.W. 6 stated that in village Nagri there is a small market where the shopkeepers after sun-set during evening use Dhibri (earthen lamp) and lantern. In paragraph-6 P.W. 6 stated that after half an hour of the occurrence he was shifted to the hospital. He also stated that there were 10-12 persons on the Havelipur Bridge who asked him as to what had happened.

9. P.W. 7 is Dinanath Ram. He has stated in his examination-in-chief that the occurrence had taken place in the year 1998 but at the time of occurrence he was not available in the village. In paragraph-2 the witness further stated that Sub-Inspector had obtained signature from him on the blank paper and was declared hostile.

10. P.W. 8 Dr. Virendra Kumar Rai conducted post mortem on the dead body of Gaffar Mian, Sunil Kumar Singh and Bashistha Sah in the Nagri Camp. P.W. 9 Dr. Sri Krishna Chandra also conducted post mortem on the dead body of Sudarshan Paswan, Vijay Chaurasia and Lal Babu Paswan in the Nagri Camp. P.W. 10 Dr. Nawal Kishore Prasad Sinha conducted post mortem on the dead body of Ram Ashish Ram, Amarnath Chaurasia and Bablu Pandey @ Bimlesh Pandey in Nagri Camp. P.W. 11 Dr. Surendra Kumar Prasad conducted post mortem on the dead body of Ayodhya Chaurasia at Sadar, Hospital, Bhojpur at Ara and charred wound of entry was found on their person.

11. P.W. 12 Sheo Kumar Paswan is also an eye witness. He has stated that on 11.5.1998 at about 7.30 P.M. he was in Nagri market at the tobacco shop of Sheo Prasad Paswan. Having purchased tobacco when he was leaving for his house 30-35 miscreants of Ranvir Sena resorted to indiscriminate firing. Amongst the 30-35 miscreants he identified appellant Chandra Bhushan Singh, Arvind Pandey, Ravindra Singh, Sudarshan Pandey, Salik Pandey, Virendra Pandey, Dadan Pandey, Sri Kant Pandey son of Bachcha Pandey, Kameshwar Singh, Anil Singh and others named in paragraph-3 but not sent up for trial. In paragraph-4 P.W. 12 stated that Sunil Kumar Singh was shot dead by Chandra Bhushan Singh, Bashistha Singh and Arvind Pandey. In paragraph-5 P.W. 12 stated that Vijay Chaurasia was shot dead by Ravindra Singh and Sudarshan Pandey. In paragraph-6 P.W. 12 stated that Amarnath Chaurasia was shot dead by Ravindra Singh and Dadan Pandey. In paragraph 7 P.W. 12 stated that Sudarshan Paswan was shot dead by Sri Kant Pandey and Kedar Rai. In paragraph-8 P.W. 12 stated that Lal Babu Paswan was shot dead by Salik Pandey, Rajendra Singh and Prince Kumar. In paragraph-9 P.W. 12 stated that Bashistha Sah was shot dead by Anil Singh, Ramakant Pandey and Janeshwar Pandey. In paragraph-10 P.W. 12 stated that Gaffar Ansari was shot dead by Bhuar Thakur, Ram Bachan Singh and Bisheshwar Rai. In paragraph-11 P.W. 12 stated that Ram. Ashish Ram was shot dead by Virendra Pandey and Gauri Pandey. In paragraph 12 P.W. 12 stated that Ayodhya Chaurasia was shot dead by Dadan Pandey and Sri Kant Pandey. In paragraph 13 P.W. 12 stated that Babul Pandey and Bharosa Ali were shot dead by Chandra Bhushan Singh, Arvind Pandey and Virendra Pandey. In paragraph 14 P.W. 12 further claimed that he saw the entire occurrence from behind the Mahua tree as there was full moon lit night and generator bulb. In paragraph 15 P.W. 12 further claimed that having seen the occurrence and saved his life he escaped from behind the tree. In paragraph 16 P.W. 12 identified Janeshwar Pandey", Salik Pandey, Virendra Pandey, Dadan Pandey, Chandra Bhushan Singh, Kameshwar Rai, Sri Kant Pandey, Sudarshan Pandey, Ravindra Singh, Dindayal Singh and Anil Singh. In paragraph 27 also P.W. 12 has given the name of miscreants before the police officer whom he identified from amongst the 30-35 miscreants who resorted to firing and further claimed that he saw the entire occurrence from behind the Mahua tree in the generator light, moon lit night. In paragraph-37 P.W. 12 has given the length and width of Nagri market as 500 x 500 yards. In paragraphs-38, 50 P.W. 12 further clarified that all the deceased, except two, namely, Babul Pandey and Bashistha Sah were shot dead in their respective shops. Babul Pandey and Bashistha Sah were shot dead on the northern side of the road but rest of the deceased were shot dead on the southern side of the road. Some of the deceased were shot dead on the eastern end of the market and others were shot dead on the western end of the market. In paragraph-55 P.W. 12 stated that he had not stated before the Sub-Inspector that F.I.R. named accused persons did not resort to firing, rather he had stated that 28-30 armed miscreants resorted to firing and having become afraid he had run away to his house. In paragraph-68 P.W. 12 claimed that he and others had shown the generator connection to the police officer. In paragraph-69 P.W. 12 stated that at the time of occurrence moon shine was on the eastern horizon. In paragraph-70 P.W. 12 stated that no sooner firing was resorted to he became scared and concealed himself behind the tree. In paragraph-71 P.W. 12 stated that miscreants were not firing shots at the Mahua tree. In paragraph-72 P.W. 12 stated that at the time of occurrence road traffic stopped outside the market area. In paragraph 73 P.W. 12 again stated that he had not informed the Officer in Charge that no sooner the firing was resorted to he having become afraid ran away towards his house.

12. P.W. 13 Kamlesh Pandey is the owner of the food-grain wholesale shop (gola) situate in Nagri market and brother of deceased Bimlesh Pandey @ Bablu was examined on 18.1.2010. In paragraph 1 of the examination-in-chief, P.W. 13 stated that the occurrence had taken place on 11.5.1998 at about 7.30 P.M. when he was present in Nagri market in his food-grain shop had seen Bashistha Pandey and five of the appellants, namely, Dadan Pandey, Sri Kant Pandey, Salik Pandey, Chandra Bhushan Singh, Arvind Pandey including 30-35 others resorting to indiscriminate firing near the shop of Vijay Paneri. In paragraph-3 P.W. 13 stated that after firing Bashistha Pandey, Dadan Pandey and Sri Kant Pandey came to the shop of P.W. 13 and surrounded him. He, however, managed to go on the roof of his shop. The deceased Bimlesh Pandey and one Ajay Pathak went inside the food-grain shop, Bashistha Pandey came inside the shop and caught Bimlesh Pandey, forced him to come out of the shop, Chandra Bhushan Singh shot at Bimlesh Pandey, accused persons thereafter went away proclaiming that task has been accomplished. P.W. 13 identified accused present in the dock including appellant Dadan Pandey, Salik Pandey Sri Kant Pandey, Janeshwar Pandey, Sudarshan Pandey, Chandra Bhushan Singh, Virendra Pandey, Anil Singh, Ravindra Singh and two others but did not identify Kameshwar Rai and Baleshwar Rai. In paragraphs-20, 21 P.W. 13 clarified that no sooner he heard the gun shot being fired on the western side of the market he went to the roof of his shop and his brother Bimlesh Pandey with a view to escape from the seen of occurrence began to lock the shop and while he was locking the shop accused persons surrounded him. In paragraph-24 P.W. 13 stated that when he went to the roof of his shop Ajay Pathak and deceased Bimlesh went inside the food-grain shop. In paragraph-25 P.W. 13 stated that Ajay Pathak is not a witness in this case. In paragraph-33 P.W. 13 stated that he has recorded his statement before the Officer in Charge after 5-6 days of the occurrence. In paragraph-35 P.W. 13 stated that he did not disclose the name of the assailants of his brother Bimlesh to the police officer who recorded his statement at Piro Hospital as the Officer had not asked him about the name of the assailants. In paragraph-36 P.W. 13 stated that he informed the Officer in Charge the name of Salik Pandey as one of the assailants. In paragraph-59 P.W. 13 stated that when he saw Dadan Pandey and other accused firing shots in front of the shop of Vijay Paneri at that time his brother Bimlesh was closing the shop and P.W. 13 on account of fear not only went to the roof of the shop but also lied flat on the face over the roof so that he may not be seen by any one.

13. P.W. 14 is Satyendra Kumar Singh who was Officer in Charge of Charpokhari P.S. on 11.5.1998. He heard rumour on 11.5.1998 that some persons have been killed in village Nagri. Having recorded station diary entry No. 186 dated 11.5.1998 P.W. 14 alongwith S.I. Syed Irshad Ali, A.S.I. Ram Raj Sharma, police force proceeded for the place of occurrence at 19.40 hours, reached Nagri market at 20.00 hours where a crowd had already assembled and found 8 dead bodies scattered at six places in the market. P.W. 14 was further informed that three others also suffered gun shot have been taken by their family members for treatment in the hospital. One dead body was found in front of Saurav Medical Hall in Nagri market which was said to be of Sunil Kumar Singh. Fardbeyan, Ext.-4 of Uma Shankar Singh, P.W. 3 the brother of Sunil Kumar Singh was recorded by the Officer in Charge which was also read over to the informant who having found the contents to be correct put his signature over the same. P.W. 14 having seen the fardbeyan identified his writing and signature which is marked as Ext.-4. In paragraph-4 P.W. 14 stated that having recorded the fardbeyan he instructed A.S.I. Ram Raj Sharma to go back to the police station for instituting the P.S. case and to draw formal F.I.R. which is in writing of Ram Raj Sharma and is identified by P.W. 14 and marked as Ext.-5. In para-graphs-5 and 6 P.W. 14 stated that he recorded the further statement of the informant at the place of occurrence itself and thereafter inspected the place of occurrence as per information provided by the informant. In paragraph-7 P.W. 14 described the first place of occurrence as a brick built room/shop of the informant facing north in front whereof there is open space where a diesel engine flour mill of the informant has been installed. Adjacent west of the room/shop of the informant there is Saurabh Medical Hall, in front whereof also there is open space where the dead body of Sunil Kumar Singh the brother of the informant smeared with blood was found lying flat on the back with head of the deceased on the southern side. According to P.W. 14 aforesaid first P.O. is about 12 feet south of the Ara-Sasaram pitch road. Further east of the first P.O. there is a rice mill of the informant and adjacent to the rice mill there is food-grain wholesale shop (gola) of Bhim Pandey and in front of the food-grain shop of Bhim Pandey there is a Neem tree 20 feet west of the first P.O. is the wooden kiosk of Vijay Chaurasia. In the north of the first P.O. there is sweet-meat shop of Ramdas Sao and next to the sweet-meat shop is the Ara-Sasaram pitch road and further south of the first P.O. is the brick built shop facing north is Saurabh Medical Hall of accused Ravindra Singh.

14. In paragraph-8 P.W. 14 has described the second place of occurrence i.e. green coloured betel kiosk of deceased Vijay Narayan Chaurasia facing west, which is at a distance of 20 feet from the first place of occurrence. Inside the kiosk dead body of Vijay Narayan Chaurasia was found lying smeared with blood with his head on the southern end of the kiosk. Beneath the betel kiosk the dead body of Lal Babu Paswan smeared with blood was found lying with the head ton the eastern side. 10 feet north of the kiosk of Vijay Narayan Chaurasia there is vacant space over which there are two trees Kadam, Pakar. Between the aforesaid two trees dead body of Sudarshan Paswan smeared with blood was found lying with his head on the southern side. At a distance of about 15 feet from the betel kiosk of Vijay Narayan Chaurasia there is a hall with wooden door in which mill has been sunk. Over the door of the hall sign of 2-3 gun shots having been fired was seen. Dead body of Ayodhya Chaursia was found inside the hall/mill. Dead body of Amar Nath Chaurasia was found 7 feet west of the wooden betel kiosk of his father. Towards the eastern side of the betel kiosk there is a lane and adjacent to the lane is the brick built shop of accused Ravindra Singh and Salik Pandey in which Saurabh Medical Hall is situate and further east of the Saurabh Medical Hall the shop/mill of the informant is situate, in front whereof is sweet-meat shop of Ram Das and further north of sweet-meat shop is Ara-Sasaram pitch road.

15. In paragraph-9 P.W. 14 has described the third place of occurrence, i.e. the wooden kiosk of Gaffar Mian facing north from the second place of occurrence at a distance of 30 feet north-west in which Gaffar Mian established his tailoring/egg shop. Next to the kiosk on a wooden bench dead body of Gaffar Mian smeared with blood was found lying with his head towards south. Adjacent east and west of the kiosk of Gaffar Mian there is Kadam and Pipal tree. Further north of the kiosk of Gaffar Mian there is Ara-Sasaram pitch road and towards south of the kiosk there is a drain and further south of the drain is the brick built mill of Vijay Chaurasia.

16. In paragraph-10 P.W. 14 has described the fourth place of occurrence, which is a wooden saloon of Baban Thakur facing south situate at a distance of 20 feet opposite the first place of occurrence and further north of Ara-Sasaram pitch road, adjacent south whereof dead body of Ram Ashish Paswan smeared with blood was found lying with his head on the east.

17. In paragraph-11 P.W. 14 has described the fifth place of occurrence which is brick built shop of Uday Narayan Pandey facing north in which Kamlesh Pandey, P.W. 13 has established his cement shop. Further east of the said shop there is another cement shop of Gupteshwar Singh. 10 feet north of the shop of Kamlesh Pandey there is a Kadam tree and further north of the tree there is a drain and further north of the drain there is Ara-Sasaram pitch road and further south thereof there is fertilizer/cement shop of Kamlesh Pandey, P.W. 13.

18. In paragraph-12 P.W. 14 has described the sixth place of occurrence (30 feet north of the second place of occurrence), which is a thatched hut facing east on Nagri-Mukundpur road in which Raj Kumar Sah has established his grocery shop. In the said grocery shop dead body of Bashistha Sao smeared with blood was found lying on a rice bag with his head towards south.

19. In paragraphs-14 to 22 P.W. 14 stated that as per the instructions of the senior officers he in the light of petromax prepared inquest report of the dead body found at the place of occurrence in presence of independent witnesses vide Exts.-7, 7/1, 7/2, 7/3, 7/4, 7/5, 7/6, 7/7. In paragraphs-23 to 32 P.W. 14 stated that empty, live cartridges were recovered from place which was near the brick built house of Vijay Chaurasia was seized in presence of independent witnesses vide Ext.-8 and then deposited in the Malkhana of the police station. The blood stained earth from beneath the dead bodies were also seized and marked as Exts.-8/A to 8/H. In paragraph 33 P.W. 14 stated that on 12.5.1998 at about 8.30 A.M. he arrested 41 accused persons duly named in the said paragraph including the appellants Sudarshan Pandey and Anil Kumar Singh. In paragraph-34 P.W. 14 further stated that 17 accused persons of village Bhairodih named in paragraph 34 of the examination-in-chief of P.W. 14 were also arrested on the same day. In paragraph 35 P.W. 14 stated that after arrival of Honble the Chief Minister, Bihar on the place of occurrence District Magistrate, Bhojpur at Ara directed that the post mortem of the dead bodies be conducted at the place of occurrence itself. In paragraph-38 P.W. 14 further stated that he received the inquest report of Bimlesh @ Babul Pandey from Piro on 12.5.1998 which was prepared by Sub-Inspector Dev Narayan Singh and marked as Ext.-7/H. In paragraph-41 P.W. 14 stated that on 13.5.1998 he obtained inquest report of deceased Ayodhya Chaurasia from Ara Nagar P.S. which was prepared by A.S.I. Ram Chandra Singh. In paragraph-43 P.W. 14 stated that P.W. 5 had stated before him that amongst the assailants he identified Bashistha Pandey, Arvind Pandey and Chandra Bhushan Singh. In paragraph 45 P.W. 14 stated that he was transferred from Charpokhari P.S. on 15.5.1998 and handed over charge of investigation to S.I. Lakshman Ram, P.W. 15. In paragraph 46 P.W. 14 further confirmed that he learnt the rumour about the occurrence having taken place in village Nagri on 11.5.1998 at about 7.40 P.M. and conducted the investigation until 15.5.1998 by preparing the inquest report of the deceased, examining the witnesses and inspecting the place of occurrence Including seizure and preparation of seizure list. In paragraphs-49 to 52 P.W. 14 stated that formal F.I.R. was registered on 11.5.1998 at 9 P.M. but before drawing the formal F.I.R. further statement of informant Uma Shankar Singh, P.W. 3 as also inspection of all the six place of occurrence was made by him in the light of petromax but who provided the petromax has not been indicated in the case diary. In paragraph-53 P.W. 14 further stated that none of the witnesses produced petromax, torch or bulb in the light whereof the accused persons were identified by the witnesses. In paragraphs 54 and 55 P.W. 14 stated that the blood stained earth and the cartridges recovered and seized from the place of occurrence were neither produced in the court nor sent for examination. In paragraph 56 P.W. 14 also confirmed that after taking the evidence of 3-4 witnesses he searched for the other witnesses but they did not make themselves available for recording their statement. In paragraph 59 P.W. 14 stated that the accused persons who were arrested on 12.5.1998 were produced in the court of C.J.M., Ara on 14.5.1998. In paragraph 60 P.W. 14 stated that at the place of occurrence he did not find any sign of trampling. In paragraph 61 P.W. 14 also stated that he did not seize any of the clothings of the deceased wherefrom it would appear that they had suffered gun shots. In paragraph 62 P.W. 14 further stated that the accused persons who were arrested in the night of occurrence were arrested from their respective residences and no fire arm was recovered from their residence(s). In paragraph 63 P.W. 14 stated that before recording of the fardbeyan identification of the deceased and the injured had already been made. In paragraph-64 P.W. 14 stated that he did not find flour smeared on the body of either the informant or his brother Sunil Kumar Singh, the deceased. In paragraph-65 P.W. 14 has given the distance between Nagri market and Charpokhari P.S. as three kilometers. In paragraph 66 P.W. 14 stated that he sent A.S.I. Ram Raj Sharma at about 8.30 P.M. to Charpokhari P.S. and thereafter recorded the further statement of the informant, P.W. 3 and inspected the place of occurrence but the time of inspection of the place of occurrence has not been mentioned by him in the case diary. Nagri market road is east to west. In paragraph 70 P.W. 14 stated that he did not prepare the inquest report until petromax was made available as there was paucity of light. In paragraphs 73 to 76 P.W. 14 stated that he got the accused persons identified for the purpose of arrest through Chaukidar Nirmal Ram. The 41 accused arrested from Nagri village were kept in Nagri Maidan by P.W. 14. Having kept the arrested accused in Nagri Maidan P.W. 14 proceeded to village Bhairodih at 9 A.M. for arrest of the accused residing in village Bhairodih, which is at a distance of one and half kilometer from village Nagri. 16 accused persons arrested from village Bhairodih were resident of Bhairodih, one accused though arrested from village Bhairodih but was resident of village Kanpahari, P.S. Sahar. In paragraph-77 P.W. 14 stated that all the 58 accused were of one caste (Bhumihar), Accused persons arrested from village Bhairodih were also brought to Nagri market. Accused of both the villages were taken to Charpokhari P.S. at 12.30 P.M. and reached Charpokhari P.S. at 1 P.M. Fardbeyan of injured Kayamuddin Ansari, P.W. 6 recorded at Ara Town P.S. is not available in the original but the contents thereof has been incorporated in the case diary, wherefrom it appears that Kayamudin Ansari, P.W. 6 has not named any of the miscreants and has disclosed the number of accused as 5-6. In paragraph 83 I.O. has stated that he sent the formal F.I.R. to the court of Chief Judicial Magistrate, Bhojpur at Ara on 13.5.1998. In the same paragraph he has further stated that distance between Charpokhari and Ara is about 40 kilometers and transport is always available in Charpokhari for going to Ara. In paragraph 85 P.W. 14 has stated that all the arrested accused persons were sent to the court of C.J.M. by the vehicle of the police station. In paragraph 87 P.W. 14 stated that he had taken the statement of Kamlesh Pandey who did not name either Salik Pandey or Virendra Pandey or Arvind Pandey as an accused. P.W. 14 also stated that aforesaid witness did not even say that accused persons while going back had stated that the work has been accomplished. In paragraph 88 P.W. 14 stated that he examined P.W. 1 who did not name Lal Mohar Singh, Kameshwar Rai, Jagdayal Rai, Kedar Rai, Rajendra Singh, Sri Kant Pandey son of Suryadeo Pandey, Sri Kant Pandey, son of Bachcha Pandey, Ram Bachan Singh before him as an accused. He also did not name Ravindra Singh and Sudarshan Pandey as the assailant of his father Vijay Narayan Chaurasia by gun shot. P.W. 14 stated that P.W. 1 also did not state before him that his brother Amarnath Chaurasia was sitting in front of his mill and was shot dead by Kameshwar Singh and Lal Mohar Singh. According to P.W. 14 P.W. 1 did not even state before him that Sudarshan Paswan was shot beneath the betel kiosk of his father by Sri Kant Pandey son of Suryadeo Pandey, Jagdayal Rai and Kedar Rai. P.W. 14 further stated that P.W. 1 also did not state before him that Lal Babu Paswan was shot dead near the betel shop of his father by Salik Pandey, Rajendra Singh and Prince Kumar. P.W. 14 also stated that P.W. 1 did not state before him that Gaffar Ansari who was selling eggs was shot at by Bisheshwar Rai, Ram Bachan Singh and Sri Bhagwan Pandey. P.W. 14 further stated that P.W. 1 did not state before him that his brother Ayodhya Chaurasia was shot at by Sri Kant Pandey, son of Bachcha Pandey. In paragraph 90 P.W. 14 further stated that he has not mentioned in the case diary about the generator or any source of light available either near the mill or in any portion of the market. In paragraph 91 P.W. 14 also clarified that whatever he had seen at the place of occurrence he has described in the case diary. In paragraph 93 P.W. 14 further confirmed that he did not verify whether the flour mill of the informant was operational at the time of his visit to the place of occurrence. In paragraph 94 P.W. 14 stated that P.W. 3 did not show him any bamboo ladder by which one could go on the roof. In paragraph 97 P.W. 14 further stated that when he reached the place of occurrence at 8 P.M. none of the persons present there informed him about the name of assailants. In paragraph 98 P.W. 14 has stated that he has not mentioned in the case diary that at the time of his arrival at Nagri market any of the shops of the market was open. In paragraph 99 P.W. 14 stated that Kamlesh Pandey in his evidence has not disclosed the name of father of Sri Kant Pandey.

20. P.W. 15 Lakshman Ram is the second Investigating Officer who took charge of the investigation after transfer of P.W. 14 on 15.5.1998. He examined Moon Nath Sah and Mahendra Sah as also obtained death report of the deceased Bashistha Sah, Vijay Chaurasia, Ayodhya Choudhary, Amarnath Chaurasia, Gaffar Mian, Babu Paswan, Sudarshan Paswan, Ram Ashish Paswan, Bimlesh @ Bablu Pandey and Sunil Kumar Singh. He also arrested accused Shivji Rai and obtained supervision note of the Superintendent of Police and submitted charge-sheet keeping the investigation open.

21. Learned counsel for the appellants submitted that out of the 15 witnesses examined on behalf of the prosecution there are 8 eye witnesses of the occurrence: P.Ws. 1, 3, 4, 5, 6, 7, 12 and 13. Out of the aforesaid 8 eye witnesses P.Ws. 1, 3, 4, 6, 12 and 13 have supported the occurrence in court. Out of aforesaid 6 eye witnesses who supported the occurrence in court the learned trial court has disbelieved P.Ws. 1 and 12 and discarded the evidence of P.W. 4. P.W. 1 has been disbelieved by the trial court on the ground that he had not named the assailants of his father Vijay Chaurasia, two brothers, Amarnath Chaurasia, Ayodhya Chaurasia as also Sudarshan Paswan and Lal Babu Paswan to the I.O. P.W. 14, but named them in court. Trial court also disbelieved P.W. 1 on the ground that no sooner the armed miscreants came to the market and resorted to firing P.W. 1 went to the roof of his shop and concealed himself in a room wherefrom he came out only after the miscreants stopped firing and went away. In the light of the aforesaid conduct of P.W. 1 trial court has concluded that P.W. 1 had no opportunity to identify the miscreants as he had concealed himself in a room at the roof of his shop. P.W. 12 has been disbelieved by the trial court on the ground that he never examined himself before the I.O., P.W. 14 and further on the ground that there is material contradiction in the names of the assailants identified by P.W. 12 and informant P.W. 3. The trial court discarded the evidence of P.W. 4 as his cross-examination was deferred on 29.7.2002 to the next day i.e. 30.7.2002 by the trial court under order dated 29.7.2002 on payment of cost of Rs. 60/- but he did not appear for cross-examination until 14.7.2005 when P.W. 5 was examined.

22. Learned counsel for the appellants submitted that P.W. 6 Kayamuddin Ansari supported the occurrence as according to him 10-12 miscreants came to the place of occurrence on 11.5.1998 at about 7.30 P.M. from behind the food-grain wholesale shop of Vijay Chaurasia and resorted to indiscriminate firing killing Vijay Chaurasia in which P.W. 6 also suffered injury but could not identify any of the miscreants as Nagri Market is a small market where shopkeepers use lantern and lamp in the night.

23. Appreciating the findings of the trial court about the evidence of P.Ws. 1, 4, 6, 12 learned counsel for the appellants submitted that this Court is required to appraise and analyze the evidence of P.Ws. 3 and 13 as they have been relied upon by the trial court to hold the appellants guilty of the charges levelled against them. According to learned counsel for the appellants evidence of P.Ws. 3 and 13 is also fit to be rejected as P.Ws. 3 and 13 have examined themselves in court as eye witnesses of the occurrence but their evidence is not reliable for the following reasons:--

i. In the fardbeyan P.W. 3 is said to have identified 60 miscreants, out of whom only 15 accused were sent up for trial. In the fardbeyan he is said to have identified the appellants and M/s. Sri Kant Pandey son of Suryadeo Pandey, Kedar Rai, Jagdayal Rai, Rajendra Singh, Prince Kumar, Rama Kant Pandey, Jugeshwar Singh, Barmeshwar Singh, Bisheshwar Rai, Ram Bachan Singh, Sri Bhagwan Paney, Gauri Pandey, Ashok Singh, Vijay Singh as assailants of the 10 deceased and one injured but the aforesaid 14 accused were not sent up for trial by the I.O. and to that extent prosecution case was found false by the Investigating Officer. While deposing in court P.W. 3 again named the aforesaid accused persons as assailants but did not take any steps to summon them to face trail by filing any petition u/s 319 Cr.P.C. which is reflective of his habit to falsely implicate innocent persons including the appellants.

ii. As per the prosecution case stated in the fardbeyan P.W. 3 also identified the assailants of the deceased in the full moon lit night and the generator bulb light, which is impossible in view of the length and width of Nagri market spread out in the area of 500 x 500 yards as depicted by the Investigating Officer in the sketch map, Ext.-6 and paragraph 37 of P.W. 12.

iii. On account of failure of P.W. 3 to point out the generator, source of identification i.e. bulb to the I.O. who reached the place of occurrence within half an hour of the occurrence.

iv. As per evidence of P.W. 3 his brother Sunil Kumar Singh was injured/shot dead from a distance of 10-15 feet, which does not appear to be correct in view of the evidence of P.W. 8 the doctor who conducted post mortem on the dead body of Sunil Kumar Singh as therefrom it appears Sunil Kumar Singh suffered two charred injuries with inverted margin on his chest, which is not possible if the shots have been fired from a distance of 10-15 feet. Reliance in this connection has been placed on the judgment of the Supreme Court in the case of Santa Singh Vs. State of Punjab,

v. Prosecution case as pleaded in the fardbeyan of P.W. 3 is that on 11.5.1998 at about 7.30 P.M. informant and his brother deceased Sunil Kumar Singh were operating the flour mill in Nagri market, 80-90 extremists of Ranvir Sena variously armed with rifle and gun came to the flour mill, spread out in the market and resorted to indiscriminate firing. Informant could identify the miscreants in the generator bulb and full moon lit night. Brother of the informant Sunil Kumar Singh was shot at by firing shots from the rifle by Chandra Bhushan Singh, Bashistha Pandey and Arvind Pandey of village Nagri and injured. Other deceased were shot dead by other appellants and persons named in the fardbeyan i.e. M/s. Sri Kant Pandey son of Suryadeo Pandey, Kedar Rai, Jagdayal Rai, Rajendra Singh, Prince Kumar, Rama Kant Pandey, Jugeshwar Singh, Barmeshwar Singh, Bisheshwar Rai, Ram Bachan Singh, Sri Bhagwan Pandey, Gauri Pandey, Ashok Singh, Vijay Singh but not sent up for trial though identified by the informant in the generator bulb and moon lit night as assailant. In the court, however, informant has admitted the fact that his flour mill is not surrounded by a wall and is under open sky. During the occurrence informant managed to climb the roof of the adjoining shop by a bamboo ladder which he pulled up and thereby saved himself. He further claimed in the said paragraph that all through the occurrence he remained at the roof. In paragraphs-29, 30 of his evidence P.W. 3 claimed that he has shown the ladder, lighted bulb and the operating generator to the police personnel after their arrival at the place of occurrence. In paragraph-31 P.W. 3 also claimed that from the roof of the shop he was brick-batting the miscreants. Brother of the informant remained at the mill (place of occurrence) and was shot at, aforesaid prosecution case as set out by P.W. 3 in fardbeyan and in court has been seriously challenged by the counsel for the appellants on the ground that at the time of arrival of the miscreants informant was operating the flour mill with the assistance of his brother the deceased, 5-6 customers were present, no sooner the miscreants arrived they resorted to indiscriminate firing, the informant could not have been allowed to climb the bamboo ladder and reach the roof of the adjoining shop. Prosecution case has been further challenged in view of the objective findings of the Investigating Officer, which he could gather after his arrival at the place of occurrence at 8 P.M. In paragraph 91 I.O., P.W. 14 states that objective finding noticed by him at the place of occurrence has been mentioned by him in the case diary. In paragraph 53 I.O. states that he was neither given nor shown by any of the witness petromax, torch or bulb by which the witnesses identified the miscreants. In paragraph 90 I.O. stated that he has not mentioned in the case diary about the generator, bulb available either in the mill or in the market. In paragraph 83 I.O. has further stated that he did not confirm whether mill was operating at the time of occurrence. In paragraph-94 I.O. stated that P.W. 3 had not shown him any ladder by which he climbed on the roof of the adjoining shop. In paragraph 97 I.O. further stated that when he arrived at the place of occurrence at 8 P.M. he was not informed the names of the assailants by any one.

vi. With reference to the delay in dispatch/receipt of the F.I.R. in the court of Chief Judicial Magistrate, Bhojpur at Ara on 13.5.1998, it is submitted that the fardbeyan of P.W. 3 and formal F.I.R. of Charpokhari P.S. Case No. 0037/98 dated 11.5.1998 was not recorded/drawn on 11.5.1998 at 8.15 P.M. and 9 P.M. respectively. In this connection, it is pointed out that the Officer in Charge P.W. 14 heard rumour about the occurrence at the police station and thereafter recorded Station Diary Entry No. 186 dated 11.5.1998 at 7.40 P.M. (which was never produced). In order to verify the rumour I.O. proceeded for Nagri village alongwith S.I. Syed Irshad Ali, A.S.I. Ram Raj Sharma and armed force reached Nagri market at 8 P.M. Having reached the place of occurrence at 8 P.M. P.W. 14 found crowd assembled in the Nagri market and dead body of 8 persons smeared with blood scattered at six places in the market. I.O. was further informed that besides the 8 dead bodies lying in the market, the three injured have been taken by their relatives for treatment. Having learnt the aforesaid information I.O. recorded the fardbeyan of Uma Shankar Singh, P.W. 3 who was available and had not taken his brother who was injured for treatment, though other injured had already been moved for treatment by their relatives. The contents of the fardbeyan was also read over to him. Having recorded the fardbeyan I.O. asked A.S.I. Ram Raj Sharma to go back to the police station and draw the formal F.I.R. which was drawn at 9 P.M. It is submitted that fardbeyan and the F.I.R. have not been drawn separately at 8.15 and 9 P.M. respectively, as is evident from perusal of the two documents. Had the two documents been recorded and drawn separately at 8.15, 9 P.M. the two documents may not have contained the same mistake about the parentage and address of accused Nos. 33 and 34 i.e. Ramji Rai, son of Mathura Rai of village Nari P.S. Sahar and Lalji Choudhary, son of Bhrigunath Choudhary of village Jamuawan P.S. Sandesh, which has been inserted in the two documents by putting a mark for later insertion. Had the fardbeyan been recorded earlier without entering the parentage and address of accused Nos. 33 and 34 the same could have been inserted later by putting a mark, the same mistake could not have been committed once again while drawing the formal F.I.R. at 9 P.M. and same mistake again corrected by putting a mark. It is further submitted that formal F.I.R. having already drawn at 9 P.M. there was no reason for not indicating the case number in the inquest report of deceased Sunil Kumar Singh, Bashistha Sah, Amarnath Chaurasia, Sudarshan Paswan, Vijay Choudhary, Lal Babu Paswan, Ram Ashish Ram, Gaffar Mian which was drawn at the place of occurrence in the night of 12.5.1998 between 2 A.M.-5.30 A.M. and was marked as Ext.-7 series. It is submitted that from paragraph 35 of the evidence of P.W. 14, it would appear that Honble the Chief Minister, Bihar arrived at the place of occurrence and thereafter District Magistrate, Bhojpur at Ara directed for post mortem of the dead bodies at the place of occurrence, itself. In compliance of the said order the post mortem on the dead body of Gaffar Mian, Sunil Kumar Singh, Bashistha Sah, Sudarshan Paswan, Vijay Chaurasia, Lal Babu Paswan, Ram Ashish Ram, Amarnath Chaurasia, Babu Lal Pandey @ Bimlesh was performed by the doctors P.Ws. 8, 9 and 10 at Nagri Medical Camp on 12.5.1998 between 2 P.M.-3.55 P.M. Post mortem on the dead body of Ayodhya Chaurasia was performed earlier at 10.30 A.M. on the same day at Sadar Hospital, Ara. Fardbeyan and formal F.I.R. was recorded/drawn after receipt of the post mortem report, although prior thereto 41 persons named in paragraph 33 of the evidence of I.O., P.W. 14 including appellants Sudarshan Pandey and Anil Kumar Singh of village Nagri and 17 accused persons of village Bhairodih named in paragraph 34 of the evidence of I.O. were arrested during the night of the occurrence or in the following morning at about 8.30 A.M. and thereafter as has been stated in paragraphs 33, 34, 62 of the evidence of I.O. The arrested accused persons were kept in Nagri Maidan and produced by the I.O., P.W. 14 before the C.J.M., Bhojpur, Ara on 14.5.1998 after receipt of the F.I.R. on 13.5.1998, which is also admitted by him in paragraphs 59, 83 of his evidence.

24. Learned counsel for the appellants also submitted that besides P.W. 3 other witnesses of the occurrence as stated in the fardbeyan itself are (1) Dinesh Kumar Chaurasia (2) Rajesh Sah (3) Guput Paswan (4) Shiv Kumar Paswan (5) Gaffar Mian (6) Sri Bhagwan Paswan (7) Deo Bilash Singh. Out of the aforesaid 7 witnesses named in the fardbeyan Dinesh Kumar Chaurasia son of deceased Vijay Narayan Chaurasia and brother of deceased Amarnath Chaurasia and Ayodhya Chaurasia was examined as P.W. 1. Deo Bilash Singh the maternal cousin of P.W. 3 was examined as P.W. 5 Shiv Kumar Paswan, the Sarpanch of Nagri Gram Panchayat was examined as P.W. 12. P.Ws. 1 and 12 have been disbelieved by the trial court. P.W. 5 the maternal cousin of the informant has supported the occurrence but clearly stated that he did not identify any of the assailants. In paragraph 5 of his evidence he has further stated that he had gone to place of occurrence in the morning and met the relative of the deceased who did not inform him about the names of the assailants. The other eye witnesses named in the fardbeyan i.e. Rajesh Sah, Guput Paswan, Gaffar Mian, Sri Bhagwan Paswan and Ravindra Singh were not even examined as witness of the occurrence, P.Ws. 1, 12 have been disbelieved by the trial court, P.W. 5 material cousin of the informant not identifying the assailants, although according to the informant he also identified the assailants, for such falsehood according to learned counsel for the appellants the evidence of P.W. 3 is also fit to be rejected.

25. Learned counsel for the appellants submitted that other witness relied upon by the trial court i.e. Kamlesh Pandey, P.W. 13 is also not fit to be relied upon by this Court as he is not even named as witness in the fardbeyan, although other 8 have been named therein as witness of the occurrence. He further submitted that P.W. 13 has admitted in paragraph-33 of his evidence that he gave his statement to the police after 5-6 days of the occurrence. In paragraph 35 P.W. 13 further admitted that he did not disclose the name of the assailants of his brother to the police officer in Piro Hospital as the officer did not ask him about the name of the assailants. In view of the aforesaid evidence of P.W. 13, it is submitted by the learned counsel for the appellants that disclosure of the name of the appellants as assailants by P.W. 13 in paragraph 2 of his examination in chief on 18.1.2010 i.e. after about 12 years of the occurrence is fit to be ignored in view of the delay in disclosure of the names of the appellants as also his own evidence in paragraphs 59 and 60 that just before the occurrence he went to the roof of the shop and continued to lie flat on the face at the roof until the miscreants went away.

26. Learned counsel for the State and the informant submitted that notwithstanding the aforesaid infirmities in the prosecution evidence, it is clear that the assailants have been identified by the informant P.W. 3 who has stated in paragraph 26 of his evidence that he had no enmity with any one and that he had seen all the accused persons resorting to indiscriminate firing and with reference to such evidence learned counsel placing reliance on the judgment of the Supreme Court in the case of Ranjit Singh and Others Vs. State of Madhya Pradesh, , paragraphs-27, 42 submitted that in a case involving an unlawful assembly with a very large number of persons there is no rule of law which states that there cannot be any conviction on the testimony of a sole eye witness, unless the court is of the view that the testimony of the sole eye witness is not reliable. In the instant case, trial court has not relied upon the evidence of P.Ws. 1, 12 and has discarded the evidence of P.W. 4 as he was not available for cross-examination. P.Ws. 2, 5, 7 became hostile, P.W. 6 injured though admitted the occurrence but claimed not to have identified the assailants this Court should place reliance on the positive evidence of P.Ws. 3, 13 and placing reliance on such evidence confirm the reference and dismiss the appeals.

27. Having analyzed the aforesaid submission, it appears that P.W. 13 was examined by the police officer at Piro Hospital within 5-6 days of the occurrence where he was attending on his injured brother Bimlesh Pandey @ Bablu Pandey who later succumbed to his injuries did not disclose the name of the assailants to the police officer, which fact he himself admitted in paragraphs 33, 35, which is also confirmed by P.W. 14 in paragraph 87 of his evidence. P.W. 13 having not disclosed the name of any of the assailants of his brother before police who have been named by him for the first time in court after 12 years of the occurrence, in such circumstances, placing reliance on the judgment of the Supreme Court in the case of State of Orissa Vs. Mr. Brahmananda Nanda,

28. So far P.W. 3 is concerned, it would appear from the fardbeyan recorded by him that miscreants numbering 80-90 variously armed with gun and rifle came to the flour mill of P.W. 3 while he was operating the same with the generator alongwith his brother Sunil Kumar Singh spread out in Nagri market and resorted to indiscriminate firing. P.W. 3 could identify the miscreants in the generator bulb and full moon lit night. Brother of P.W. 3 Sunil Kumar Singh suffered gun shot by Chandra Bhushan Singh, Bashistha Pandey and Arvind Pandey of village Nagri and became injured, P.W. 3 could, however, somehow escape the gun shots. Similarly Md. Kayamuddin Ansari @ Bharosa Ali is said to have been injured by gun shots fired by Ashok Singh and Vijay Singh and removed within half an hour of the occurrence for treatment in the hospital. Mithilesh Pandey @ Babul Pandey also suffered gun shots and taken to Piro Hospital for treatment where he succumbed to the injuries after few days. Brother of the informant, though injured by gun shots but informant did not take any steps to take him to the hospital for treatment, which is indicative of the fact that the informant was perhaps not present at the place of occurrence, otherwise he ought to have taken steps to take his brother to the hospital for treatment in view of the categorical statement made by the informant in the fardbeyan that his brother suffered gun shots and was injured. The presence of the informant at the place of occurrence as an eye witness is also doubtful as according to prosecution case informant and his brother Sunil Kumar Singh were together operating the flour mill when the miscreants arrived at the mill and resorted to indiscriminate firing causing gun shot injury to Sunil Kumar Singh. In the fardbeyan informant has not given even slightest hint as to how he saved himself from the indiscriminate firing. The stand of the informant, P.W. 3 taken in court that he somehow escaped the indiscriminate firing resorted to by the miscreants and climbed the roof of the adjoining shop with the help of a bamboo ladder, which was also pulled up by him and resorted to brick-batting, so as to keep the miscreants away, also appears to be incorrect as the I.O. has categorically stated in paragraph 94 of his evidence that neither bamboo ladder was shown to him nor he noticed any evidence of brick-bat at the place of occurrence. Out of 8 witnesses named by P.W. 3 in the fardbeyan M/s. Rajesh Sah, Guput Paswan, Ravindra Singh, Sri Bhagwan Paswan have not been examined as witness to support the prosecution case. Dinesh Kumar Chaurasia, P.W. 1 Shiv Kumar Paswan, P.W. 12 have been disbelieved by the trial court. Deo Bilas Singh, maternal cousin of the informant, P.W. 5 has not supported the occurrence and has been declared hostile. Gaffar Mian is one of the 10 deceased. It would thus appear that none of the fardbeyan witness has come forward to support the prosecution story as unfolded by the informant.

29. The occurrence took place on 11.5.1998 at 7.30 P.M., fardbeyan was recorded at 8.15 P.M. naming 60 accused besides 20-30 unknown. Out of 60 accused named in the fardbeyan following 27 accused i.e. Chandra Bhushan Singh, Arvind Pandey, Basistha Pandey, Ravindra Singh, Sudarshan Pandey, Lal Mohar Singh, Kameshwar Singh, Sri Kant Pandey, Kedar Rai, Jagdayal Rai, Salik Pandey, Rajendra Singh, Prince Kumar, Anil Singh, Ramakant Pandey, Jugeshwar Singh, Janeshwar Pandey, Barmeshwar Singh, Bisheshwar Rai, Ram Bachan Singh, Sri Bhagwan Pandey, Birendra Pandey, Gauri Pandey, Ashok Singh, Vijay Singh, Dadan Pandey and Sri Kant Pandey, son of Bachcha Pandey have been named as assailants of the ten deceased and one injured in the fardbeyan. Out of the aforesaid 27 accused named in the fardbeyan with specific overt act the allegation levelled against Sri Kant Pandey, son of Suryadev Pandey, Kedar Rai, Jagdayal Rai, Rajendra Singh, Prince Kumar, Ramakant Pandey, Jugeshwar Singh, Barmeshwar Singh, Bisheshwar Rai, Ram Bachan Singh, Sri Bhagwan Pandey, Gauri Pandey, Ashok Singh and Vijay Singh was not found true and they were not sent up for trial as charge-sheet has been submitted only against 15 accused persons who were put on trial. Notwithstanding the fact that aforesaid 14 persons were not sent up for trial. P.W. 3 in his examination-in-chief again named the aforesaid 14 accused persons as assailants alongwith the appellants without filing protest petition or petition u/s 319 Cr.P.C. Aforesaid conduct of P.W. 3 is indicative of the fact that he is in the habit of falsely implicating innocent persons.

30. Ram Kumar Ram, P.W. 2 reached the place of occurrence within one hour of the occurrence by which time crowd had already collected and there was commotion at the place of occurrence. He remained at the place of occurrence for the whole night as one of the deceased Ram Ashish Ram was his agnate and uncle but none informed him about the name of the assailants. Deo Bilas Singh, P.W. 5 is the maternal cousin of the informant P.W. 3 who came to the place of occurrence in the morning on 12.5.1998 and met the family members of the deceased but none informed him about the name of the assailants. Both P.Ws. 2 and 5 were declared hostile. Md. Kayamuddin Ansari, P.W. 6 suffered injuries during the occurrence and was taken to hospital for treatment. He also could not identify the accused who assaulted him and others. In this connection, evidence of I.O., P.W. 14 in paragraph-97 is also relevant as he reached the place of occurrence (Nagri Market) in the evening of 11.5.1998 at 8 P.M./20.00 hours where a crowd had already assembled and found 8 dead bodies scattered at six places in Nagri market but none of the persons present in the market informed the I.O. about the name of the assailants. From the aforesaid evidence of P.Ws. 2, 5, 6 and 14, it is evident that the name of the assailants of the 10 deceased and one injured was not known to P.Ws. 2, 5, 6 and others including the informant P.W. 3, although fardbeyan stood recorded by P.W. 14 on 11.5.1998 at 8.15 P.M., formal F.I.R. drawn in the same night at 9 P.M. leading to arrest of 41 residents of village Nagri including appellant Sudarshan Pandey and Anil Kumar Singh during the night between 11-12.5.1998 until 8.30 A.M. and 17 residents of village Bhairodih thereafter from their residence. Prosecution party was unaware about the name of the assailants is also evident from the fact that the delay caused in receipt of the formal F.I.R. in the court of C.J.M., Bhojpur at Ara on 13.5.1998 is not explained by the prosecution, though distance between Charpokhari P.S. and court of C.J.M., Bhojpur at Ara is 40 kilometers and transport is always available for commuting between Charpokhari and Ara, yet it took more than 36 hours for the formal F.I.R. to reach the court of C.J.M., Bhojpur at Ara. Placing reliance on the judgment of the Supreme Court in the case of Arjun Marik and Others Vs. State of Bihar, it is held that delay in sending the F.I.R. leads us to conclude that the fardbeyan has been recorded, F.I.R. drawn much later than the date and time as shown in the two documents. The residents of village Nagri, Bhairodih arrested during the night between 11-12.5.1998 and in the morning of 12.5.1998 respectively from their residence were kept in Nagri Maidan and produced before the C.J.M., Bhojpur at Ara on 14.5.1998 without there being any explanation for such delay in production. Aforesaid delayed receipt of formal F.I.R. and production of the accused in the court of C.J.M. is indicative of the fact that the prosecution was not sure about the identity of the assailants though fardbeyan/formal F.I.R. stood recorded/drawn on 11.5.1998 at 8.15, 9 P.M. respectively and arrest made during the night between 11-12.5.1998 and morning of 12.5.1998 from the residence of the arrestee.

31. The claim of the informant that he identified the accused persons in the bulb lighted with the help of generator also does not appear to be worthy of acceptance as neither the generator nor the bulb was shown to the I.O., though I.O. reached the place of occurrence at 8 P.M. vide paragraph 53 of his evidence. In this connection, evidence of Md. Kayamuddin Ansari, P.W. 6 who has his egg shop in Nagri market and suffered injury during the attack is also relevant as he has stated in paragraph 5 that in village Nagri there is a small market where the shopkeepers after sun-set and during evening use earthen lamp (Dhibri) and lantern.

32. From perusal of the sketch map drawn by the I.O. as per description of the six place of occurrence in paragraphs 7 to 12 of his evidence and the fact that Nagri market is spread over in length and width of 500 x 500 yards bisected by Nagri market lane, Nagri Mukundpur road and Ara-Sasaram road, it is quite impossible for the informant to identify the assailants of the ten deceased and one injured when he could not identify the assailant of Bimlesh Pandey @ Bablu who was shot at fifth place of occurrence just 50 feet east of the first place of occurrence where the brother of the informant Sunil Kumar Singh was shot at. First place of occurrence is a brick built room/shop of the informant facing north in front whereof there is open space where a diesel engine flour mill of the informant has been installed. Adjacent west of the room/shop of the informant there is Saurav Medical Hall, in front whereof also there is open space where the dead body of Sunil Kumar Singh, brother of the informant was found lying flat on the back. Second place of occurrence is betel kiosk of deceased Vijay Narayan Chaurasia facing west, which is at a distance of 20 feet from the first place of occurrence. Inside the kiosk dead body of Vijay Narayan Chaurasia was found lying. Beneath the betel kiosk dead body of Lal Babu Paswan was found lying. 10 feet north of the kiosk of Vijay Narayan Chaurasia there is vacant space over which there are two trees, one of Kadam and the other of Pakar. Between the aforesaid two trees dead body of Sudarshan Paswan was found lying. At a distance of about 15 feet from the betel kiosk of Vijay Narayan Chaurasia there is a hall with wooden door in which a mill has been sunk. Inside the mill premises dead body of Ayodhya Chaurasia was found. Dead body of Amar Nath Chaurasia was found 7 feet west of the wooden betel kiosk of his father Vijay Narayan Chaurasia. The third place of occurrence is the wooden kiosk of Gaffar Mian facing north situate at a distance of 30 feet north-west from the second place of occurrence. Next to the kiosk on a wooden bench dead body of Gaffar Mian was found. Adjacent east and west of the kiosk of Gaffar Mian there is Kadam and Pipal tree. Further north of the kiosk of Gaffar Mian there is Ara-Sasaram pitch road. South of the kiosk of Gaffar Mian there is a drain and further south of the drain is brick built mill of Vijay Narayan Chaurasia in which dead body of his son Ayodhya Chaurasia was found. Fourth place of occurrence is a wooden kiosk/saloon of Baban Thakur facing south situated further north of Ara-Sasaram pitch road at a distance of 20 feet opposite the first place of occurrence, in front whereof dead body of Ram Ashish Paswan was found. Fifth place of occurrence is open space in front of brick built shop of Uday Narayan Pandey facing north, which is at a distance of 50 feet from the first place of occurrence. Sixth place of occurrence is a thatched hut situated 30 feet north of the second place of occurrence facing east on Nagri Mukundpur road in which dead body of Bashistha Sao was found lying on a rice bag. During the indiscriminate firing which continued for about 10 minutes the informant remained static. In view of the topography of the place of occurrence as described above, it appears to be difficult for anyone to identify the assailant at the six place of occurrence spread out in Nagri market area comprising of 500 x 500 yards.

33. The evidence of the informant, P.W. 3 as analyzed above in paragraphs 29 to 33 is indicative of the fact that informant has also not seen the occurrence and it is unsafe to rely on his evidence and appellants are entitled for grant of benefit of doubt. The finding of the court below in paragraph 21 of the impugned judgment that appellant Virendra Pandey was not a minor on the date of occurrence in view of the claim of the informant, P.W. 3 also appears to be error of record in view of the report of the Medical Board referred to in paragraph 4 of the order dated 22.1.2000 passed by the court below. In view of our findings above, impugned judgment and order of sentence dated 6.8.2010, 12.8.2010 respectively passed by Additional Sessions Judge-I, Bhojpur at Ara in Sessions Trial No. 72/1999 is set aside. Appeals are allowed and the death reference is answered in negative. The appellants are directed to be released forthwith, if not wanted in any other case.

Amaresh Kumar Lal, J.

I agree.