Eyewitness accounts unreliable due to inconsistencies, visibility doubts (distances, covered faces, hiding), suppressed initial report; benefit of doubt requires acquittal in multiple murder case by unlawful assembly.

Judgment :

Rongon Mukhopadhyay, J.

1. Heard Mr. B.M. Tripathi, learned senior counsel for the appellants in Cr. Appeal (DB) No. 337 of 2020 and Mr. Pankaj Kumar, learned P.P.

2. Death Reference No. 01 of 2020 has been put up before us for confirmation of the death sentence imposed upon both the convicts under Section 366 Cr.P.C.

3. One of the convicts (appellant) has preferred a separate appeal being Criminal Appeal (DB) No. 337 of 2020 which is directed against the judgment and order of conviction and sentence dated14-02-2020 (sentence passed on 19-02-2020) passed by Sri Vishwa Nath Shukla, learned Additional Sessions Judge-IV, Koderma in S.T. Case No. 75/2016, whereby and whereunder, the appellants have been convicted for the offences under Sections 147, 148, 458/149 and 302/149 IPC and have been sentenced to rigorous imprisonment for 02 years for the offence under Section 147 , rigorous imprisonment for 03 years for the offence under Section 148 , rigorous imprisonment for 14 years along with a fine of Rs. 50,000/- each for the offence under Section 458/149 and in default in payment of fine to undergo imprisonment for 2 years and they have also been sentenced to death under Section 302/149 along with the fine of Rs. 50,000/- each and in default in payment of fine to undergo imprisonment for 02 years.

4. The prosecution case arises out of the written report of Suresh Kumar dated 26-09-2004 in which it has been stated that on 25-09-2004 at about 8:00PM, 20-25 persons variously armed had attacked his house. The informant along with Kapildeo Prasad Yadav, Neeraj Kumar alias Sudhir Kumar were in the terrace of the house and on seeing the armed miscreants, the informant jumped from the terrace and hid himself. The informant had seen his father Kapildeo Prasad Yadav being dragged by Darogi Prasad Yadav, who had a farsa, Ranjit Prasad Yadav who had a gadasa and Bipin Prasad Yadav who had a rifle, and taken outside the house after which the hands of Kapildeo Prasad Yadav were tied with a gamchha and thereafter his head was chopped off with a‘farsa. It has been alleged that the brother of the informant Neeraj Kumar alias Sudhir Kumar was also dragged towards the door by Sunil Prasad Yadav who was armed with a farsa and rifle, Nawlesh Prasad Yadav who was armed with a gadasa and Rajesh Prasad Yadav who was armed with a farsa and rifle and after tying his hands with the lungi he was wearing, he was thrown on the ground and Nawlesh Prasad Yadav and Rajesh Prasad Yadav pressed Neeraj Kumar to the ground, while Sunil Prasad Yadav cut off his head with a farsa and Nawlesh Prasad Yadav assaulted him with a gadasa on his abdomen. It has further been alleged that when Anoj Kumar started raising an alarm, his hands were tied by Rambriksh Yadav with a gamcha after which Rajkumar Prasad Yadav and Ram Prasad Yadav thrashed Anoj Kumar to the ground and Rambriksh Yadav cut his throat with a farsa. The assailants thereafter caught hold of Sakaldeo Yadav and his hands were also tied with a gamcha by Umesh Yadav and after throwing him on the ground, Sanjay Yadav and Umesh Yadav pressed him, while Anil Yadav cut his neck with a farsa and Sanjay Yadav assaulted him on his abdomen with a gadasa. At the time of the occurrence, Baldeo Prasad Yadav was instigating the others not to spare anyone. The miscreants, while fleeing away, had thrown