Judgment Sateshwar Roy, J. 1. Appellant Harbansh Singh was found Builty urder Sec. 302 of the Indian Penal Code (hereinafter to be referred as the Code) and was sentenced to undergo rigorous imprisonment for life. Appellant hishwamitra was found guilty under sec. 302 34 of the Code and he was also sentenced to undergo rigorous imprisonment for life. 2. On 15th July, 1972 according to the Fardbeyan of P.W. 7 while Shyam Behari, her husband, was on the western bank of a canal sitting along with P.W. 4 and one Ram Lakhan for the canal Sub-divisional Officer and P.W. 7 was also nearby the appellants came there. Appellant Harbansh Singh bad a gun in his hand. He fired from his gun which hit Shyam Behari. hishwamitra thereafter asked Harbansh to repeat the firing. Shyam Bahari died at the spot of gun short injuries Although P. Ws. 1 and 4 beside P W. 7 claim to be eye-witnesses of the occurrence, the court below accepted P.W. 7 as the only eyewitness. On the basis of testimony and on the basis of the evidence of P.W. 4 with regard to the manner of occurrence, the Court below found the appellants guilty. 3. Learned Counsel for the appellants submitted that the appellants should not be held guilty on the sole testimony of P.W. 7 particularly when she was not expected to be present with her husband at the canal and when there were independent witnesses whom the prosecution did not examine without any explanation. It was also submitted that the station diary entry which was made on the basis of the information given by P.W. 5 was not produced by the prosecution which prejudiced the appellants. On behalf of the State, it was submitted that there was no reason for discarding the evidence of P.W. 7 which was corroborated with regard to the manner of occurrence by the evidence of P. Ws. 1 and 4. 4. According to the Fardbeyan about 7 to 8 persons came to the canal where the deceased was waiting for the Canal Sub-Divisional Officer. Out of them only the appellants could be identified by P.W. 7 and they were only named in the Fardbeyan. The appellants were put on test identification parade and P.W. 4 only identified appellant hishwamitra. No other witness could identify any of the appellants. Out of them only the appellants could be identified by P.W. 7 and they were only named in the Fardbeyan. The appellants were put on test identification parade and P.W. 4 only identified appellant hishwamitra. No other witness could identify any of the appellants. It was contended on behalf of the State that P.W. 1 in his evidence stated that due to fear he did not identify the appellants. We are not impressed with this submission. At no point of time before his examination P.W. 1 stated that out of fear he could not identify the appellants. 5. According to P.W. 7 she after the occurrence returned to her house and there after left her house to arrange for giving in formation of the occurrence to the police station. She met the driver of a bus who was requested to inform the police about the occurrence. It has come in evidence that the thus driver in him turn informed P.W. 5 about it who informed the police station about the murder of Shyam Behari. The driver of the bus was of Jai Bharat Bus Service. The identify of the driver was known to her. Whether P.W. 7 told the driver the names of the appellants as the assailants of her husband the driver was competent to say. He was an in dependent witness. Since independent witness was available, it was incompetent on the prosecution to examine the bus driver. No explanation has been given by the prosecution for not examining him. 6. The station diary entry made on the basis of the, information given by P.W. 5 was also not produced. Whether P.W. 7 bad informed the bus driver the names of the assailants of her husband and whether the bus driver in his turn had informed P.W. 5 about the names of the assailants could have been ascertained only from the station dairy entry. The prosecution without any explanation with held the same. These are the grounds which create doubt about the case of the prosecution. We may notice that on behalf of the appellants it was not contended that Shyam Behari was not murdered by gun shot injury. What was contended was that the appellants did not kill him. The prosecution without any explanation with held the same. These are the grounds which create doubt about the case of the prosecution. We may notice that on behalf of the appellants it was not contended that Shyam Behari was not murdered by gun shot injury. What was contended was that the appellants did not kill him. From the perusal of the evidence, the First Information Report and other materials we are of the opinion that the prosecution has failed beyond all reasonable doubt in proving that the appellants bad murdered Shyam Behari. 7. In the result this appeal is allowed. The conviction and sentence of the appellants is set aside. The appellants are discharged from their liabilities under the bail bonds.