In a criminal trial, the prosecution bears the burden of proving the charges against the accused beyond reasonable doubt. The court must carefully evaluate the evidence, considering any inherent improbabilities, omissions and infirmities, and the interested or enmical nature of the evidence. If the prosecution fails to meet this burden, the accused is entitled to the benefit of doubt and must be acquitted.

S. N. Jha, J.

1. Death Reference No.2/1988 and Criminal Appeal No.272/1988 and Cr. Appeal No.307/1988 arising out of the same trial, have been heard together and are being disposed of by his common judgment.

2. Death Reference No.2/1988. He has been made in regard to Mithilesh rai who is sole appellant in Cr. Appeal No.307/1988. He has been convicted under Sec.302 of the Indian Penal Code (for short the Penal Code) for committing murder of Arun Rai and has been sentenced to death.

3. In Cr. Appeal No.272/1988, there are two appellants, namely, Madan rai and Raj Naresh Rai. Both these appellants have been convicted under section 302/109 of the Penal Code and each of them has been sentenced to undergo rigorous imprisonment for life.

4. In trial there were five accused persons including the aforesaid three appellants out of whom two of the accused, namely, Rajendra Rai and Ramdas rai were acquitted.

5. A fardbeyan (Ext.10) was recorded by the S. I. Police of Athmalgola police station (PW ) 3) at the place of occurrence in village Dachini Chak within the Athmalgola Police station in the district of Patna on 17-5-1985 at 5.30 P M. on the statement of the informant Mahendra Rai (PW 11) stating, inter-alia, that the informant along with Jugeshwar Rai (PW 8) were sitting in Badrawa mango orchard just adjacent south to his house and his cousin arun Rai (deceased) was also sleeping on a cot in the same orchard. In the mean time, accused Madan Rai and Mithilesh Rai came there twice and went away. Again at about 12.00 noon both the accused Madan Rai and Mithilesh rai came from the side of their house and Madan Rai caught hold of the upper part of neck of his deceased cousin who was sleeping on the cot and accused Mithilesh Rai who was carrying Kakut (chaff cutter) gave a heavy blow on Aruns neck as a result of which his neck was chopped of and stream of blood began to flow. On seeing the occurrence, when the informant Mahendra rai along with Jugeshwar Rai (PW 8) proceeded forward to catch hold of the accused persons, they abused them and uttered that if they would come, they would also meet the same fate and both of them fled towards their houses going through west north, Till then on hulla many persons of the village came there. It is also stated in the fardbeyan that his cousin brother Kalicharan Rai (PW 9)and Jagdish Rai (PW 7) have also seen the occurrence. The fardbeyan also reveals that on the date of occurrence in the morning, informants brother (the deceased) had gone towards the house of accused to measure milk, Rajendra rai and Ramdas Rai (since acquitted) both belonging to the same village, fathers of both the aforesaid accused Madan Rai and Mithilesh Rai respectively, demanded milk from Arun on which Arun said that milk would cost Rs.5/-per kg, and his father would supply the same, which led to some altercation between the deceased and the aforesaid Ramdas Rai and Rajendra Rai. On this Rajendra Rai and Ramdas Rai ordered their respective sons to kill Arun by cutting his neck within day hours whatsoever come and after giving this order, both Rajendra Rai and Ramdas Rai (since acquitted) went to their work. According to the informant, therefore, he was with his brother keeping watch on him but suddenly the accused persons committed the crime and fled away in deceitful manner.

6. On the basis of the fardbeyan (Ext.10), a formal F. I. R. (Ext.12) was drawn up and criminal case was instituted and the police started investigation.

7. It appears that on the same day at about 3.30 P. M. after the comission of the alleged murder, the Officer Incharge of Athmalgola police station got information that some murder have been committed at Dachini Chak village and after making an entry in the station diary regarding the same, he at once proceeded to the village with police party and there he recorded the aforesaid fardbeyan on the statement of Mahendra Rai at about 5.30 P. M. on the basis of which a formal F. I. R. (Ext.12) was drawn