The non-examination of the Investigating Officer was fatal to the prosecution's case, and the prosecution failed to prove the guilt of the appellants beyond reasonable doubt.

JUDGMENT :

SUDHIR SINGH, J.

1. The present appeal has been preferred against the judgment of conviction and the order of sentence dated 14.12.1995 passed by the 9th Additional Sessions Judge, Patna in Sessions Trial No. 617 of 1987, arising out of Bikram (Dulhin Bazar) P.S. Case No. 311 of 1984, whereby and whereunder the appellants have been convicted under Sections 302/149 and 148 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for life under Section 302/149 of the Indian Penal Code and two years under Section 148 of the Indian Penal Code. The sentences have been ordered to run concurrently.

2. By order dated 25.02.2022, passed by a co-ordinate Bench of this Court, the present appeal has stood abated against appellants Sadal Yadav and Govardhan Yadav as they have died during pendency of this appeal. This appeal is now confined to appellants namely Ganesh Yadav, Bhuwan Yadav and Chandeshwar Yadav.

3. Heard learned counsel for the appellants, learned A.P.P. appearing for the State. This Court has also benefited from the able assistance given by Mr. Amish Kumar, Amicus Curiae as appointed by order dated 25.02.2022, passed by a Co-ordinate Bench of this Court.

4. Prosecution case, in brief, is that the fard-beyan of informant Mahesh Yadav was recorded by S.I. S.D. Pandey, wherein he has narrated that on 24.09.1984 at about 11:00 A.M., the informant along with co-villagers had gone to village Noorika for construction of dam. Singheshwar Yadav had accompanied him to the site. At about 4:00 P.M. the informant along with his uncle Singheshwar Yadav (deceased) were coming back to the village via watching their field. No sooner did they reach near Ahra, one Kishundeo Yadav along with few unknown persons came over there. One of the unknown persons wanted to catch hold of neck of Singheshwar Yadav, as a result the towel fell down on the earth. The informant saw a mob near Bandh shouting Maro-Maro and they were also running towards the informant and Singheshwar Yadav. These accused along with several other were identified with weapons in their hands. The informant and Singheshwar Yadav took to their heels where upon accused Shital Yadav opened fire from his gun causing injury to the informant in the right elbow. Accused Akhilesh Yadav, Bhola Yadav and Dhuri Yadav opened fire from their pistol and gun aiming at Singheshwar Yadav. Singheshwar Yadav hid himself by the side of ridge to save himself from the desperate gun-shot firing. Singheshwar Yadav again tried to run away when he was caught hold by accused Shital Yadav and Gowardhan Yadav. Accused Chandeshwar Yadav also came over there and threw Singheshwar Yadav in the field of Munshi Yadav. By the time the remaining accused persons came over there. Accused Surendra Yadav, Digree Yadav and Ghamandi Yadav began to assault Singheshwar Yadav (deceased) on the neck by means of Pandhariya. The informant began to raise an alarm which attracted co-villagers to the place of occurrence. The accused persons began to shout Naxalwari Zindabad. The head of Singheshwar Yadav was chopped of and accused Akhilesh Yadav wrapped the head in the Gamcha and they proceeded towards village Sarkuna by shouting slogan of Lal Salam Zindabad. After departure of the accused, the informant went near the dead body of Singheshwar Yadav and saw the truncated body. The motive behind the occurrence is alleged to be the land dispute with accused Akal Yadav from before.

5. On basis of the fard-beyan of the informant, Bikram (Dulhin Bazar) P.S. Case No. 311 of 1984 was registered against thirteen accused persons. The investigation proceeded and the police submitted charge-sheet against them, showing seven of them as absconder. The jurisdictional Magistrate took cognizance of the offences and then committed the case to the Court of Sessions. Charges were framed against the appellants. The appellants pleaded not guilty and claimed to be tried.

6. During trial, the prosecution examined altogether sev