Judgment Binodanand Singh and P.B.Prasad JJ. 1. Both the appellants, have been convicted under Sec.302, read with Sec. 34 of the Indian Penal Code and each of a them has been sentenced to undergo rigorous imprisonment for life by judgment and order dated 28-11-1984 passed by Shri B.D. Jha, 1st Additional Sessions Judge, Bettiah in Sessions Trials Nos. 153/79 and 73/83. 2. Appellant No. 1, Zahir Mian is the brother-in-law of appellant No. 2 Dharpakar Mian the prosecution case, briefly stated, is that on 19-10-1979 at 5 p.m. Md. Hanif (deceased) was coming back on cycle from Lauriya Market. When he reached on the road one furlong away from his village he was fired at by both the appellants. The deceased Md. Hanif received gun shot injury and fell down. Thereafter the appellants took to their heels. On kulla, Tufan Mian (P.W. 5), Gazi Mian, Hakik Mian (both not examined). Ash Mohammad (P.W. 1), Motiuddin Ansari (P.W. 2), Pashupati Shukla (P.W. 3) and Safiullah (P.W. 6) son of the deceased Md. Hanif, reached at the place of occurrence and saw the accused persons namely, these two appellants running away. According to the prosecution case Md. Hanif (deceased) had received gun shot injury and he stated before the aforesaid witnesses that he was shot at by the appellants. Md. Hanif (deceased) was taken to Lauriya State Dispensary where his statement was recorded by Sahabuddin Khan, A.S.I. of Lauriya Police Station (not examined) on the same day i.e. 19-10-1976 at 8 p.m. The aforesaid statement was recorded as the Fardbeyan which has been marked as Ext. 3. Aforesaid A.S.I. Sahabuddin Khan had gone to the Lauriya State Dispensary under the orders of Kameshwar Prasad Singh (P.W. 9), who was then posted as the officer-in-charge of Lauriya Police Station. After recording of the Fardbeyan (Ext. 3), he came back to the police station and on the basis of the aforesaid Fardbeyan (Ext. 3) a formal First Information Report (Ext. 1) was drawn up and a case was instituted against both the appellants under Sec. 307 of the Indian Penal Code and 27 of the Arms. Act. Thereafter, Kameshwar Prasad Singh (P.W. 9), the officer-in-charge of Lauriya Police Station, himself took up investigation and he examined the witnesses. In the meantime as it appears from the record the deceased Md. 1) was drawn up and a case was instituted against both the appellants under Sec. 307 of the Indian Penal Code and 27 of the Arms. Act. Thereafter, Kameshwar Prasad Singh (P.W. 9), the officer-in-charge of Lauriya Police Station, himself took up investigation and he examined the witnesses. In the meantime as it appears from the record the deceased Md. Hanif, who was then alive, was referred to Bettiah Sadar Hospital for better treatment by the doctor of Lauriya State Dispensary. 3. On 20-10-1986 at 6 a.m. the Investigating Officer Kameshwar Prasad Singh (P.W. 9) reached the place of occurrence and inspected the same in presence of Tufan Mian (P.W. 5) and Safiullah (P.W. 6). The place of occurrence was situated on the Kacha flank of Lauriya Bagha metalled Road. The Investigating Officer (P. W. 9) found blood like substance there. The house of the deceased Md. Hanif, witnesses and the accused persons, i.e., these two appellants were towards south-west of the place of occurrence to a distance of 500 yards. The Investigating Officer (P.W. 9) seized the earth containing blood like substance. The deceased Md. Hanif, while he was alive, was referred to Darbhanga Medical College Hospital from Bettiah Sadar Hospital for treatment, where he appears to have died on 21-10- 1976. It appears from the evidence of P.W. 9 the Investigating Officer, that after the death of Md. Hanif at Lehariasarai, inquest was held on the dead body of Md. Hanif by Khalil Ansari, A.S.I. of Lehariasarai Police Station on 21-10-1976. Carbon Copy of the inquest report has been marked as Ext. 5. 4. P.W. 8 Dr. Kanhiya Prasad Shrivastava, who was then posted at Darbhanga Medical College, held postmortem examination on the dead body of Md. Hanif (deceased) on 21-10-1976 along with Dr. V.C.S. Verma who was also posted there. Here it may be pointed out that in the evidence of the doctor (P.W. 8) the time of postmortem examination is not mentioned. However, from the photo-state copy of the postmortem report contained in the brief prepared by the office of this court, the time of postmortem examination appears to be 2 p.m. On examination of the dead body of Md. However, from the photo-state copy of the postmortem report contained in the brief prepared by the office of this court, the time of postmortem examination appears to be 2 p.m. On examination of the dead body of Md. Hanif it was found that the dead body was of a male aged about 58 years and the following antemortem injuries were found: (i) A central oval wound ½ in diameter surrounded by seven circular small wounds each measuring ¼ x 1/5" in diameter. The margins of the wounds were slightly blackened, on the back of right lumber area. On opening the abdominal cavity five pellets were recovered from the wound 3rd and 4th lumber vertebra, vertibral canal and adjoining area. The posterior portion of right kidney was deeply bruised and tissues around were lacerated. Dark coloured blood and blood clots were found in the abdominal cavity with injuries to vertebral and other abdominal vessels and a small crack in inferior venacava. The broken pieces of vertebral were found entangled in the lacerated mass of tissues injuries were also found in the ascending column. (ii) In the opinion of the doctor the injuries were grievous and dangerous to life in ordinary course of nature. The injuries were caused by fire arm. The dispersion of the pellets were measured and found to be in a sphere of 3" diameter. The range of fire hence appeared to be 2½ yards to 5 yards from the position of the victim. The death was due to haemorrhage and shock. Time elapsed since death was within 12 to 24 hours from the time of postmortem examination.. The postmortem report has been marked as Ext. 2. The postmortem report was signed by this witness (P.W. 8) as well as by Dr. V.C.S. Verma. 5. The Investigating Officer (P.W. 9) examined the witnesses and sent the blood stained articles to the Forensic Science Laboratory for examination and report. Carbon copy of the forwarding letter has been marked as Ext. 4. On the death of Md. Hanif the offence was converted into Sec. 302 of the Indian Penal Code, instead of Sec. 307 of the Indian Penal Code. After completing investigation the Investigating Officer (P.W. 9) submitted charge-sheet in this case against both the appellants under sec. 302 of the Indian Penal Code. After cognizance and commitment both the appellants were put on trial. Hanif the offence was converted into Sec. 302 of the Indian Penal Code, instead of Sec. 307 of the Indian Penal Code. After completing investigation the Investigating Officer (P.W. 9) submitted charge-sheet in this case against both the appellants under sec. 302 of the Indian Penal Code. After cognizance and commitment both the appellants were put on trial. They charged under sections 302/34 of the Indian Penal Code by the trial court. They, however, pleaded not guilty to the charge. In order to establish its case the prosecution examined nine witnesses in all. Both the appellants were examined under sec. 313 of the Code of Criminal Procedure. No witness, however, was examined on their behalf. The case of the defence was that both the appellants were innocent and they had been falsely implicated in the present case due to enmity. The learned trial court at the conclusion of the trial rejected the defence plea and accepted the prosecution case and came to the finding that the charge under sections 302/34 of the Indian Penal Code has been established against both the appellants and it, accordingly, convicted and sentenced both the appellants as stated above. 6. The learned counsel appearing for the appellants has contended that the findings and conclusions of the learned trial court that the charge has been established against the appellants is quite unjustified since they are not based on sufficient and reliable evidence. From the materials of the record it appears that in this case as stated earlier witnesses have been examined on behalf of the prosecution. Out of whom, P.W. 3 Pashupati Shukla and P. W. 4 Sukhtahi Mian have been declared hostile by the prosecution and they have been cross-examined as well by the prosecution. Regarding P.W. 8 Dr. Kanhaiya Prasad Shrivastava, who is a doctor, and P.W. 9 Kameshwar Prasad Singh, who is the Investigating Officer, a reference has already been made. In this case it appears that the finding of guilty of the appellants arrived at by the learned trial court is mainly based on two types of evidence and they are the dying declarations of the deceased. The learned trial court has relied on the recorded dying declaration of the deceased Md. Hanif as contained in Ext. In this case it appears that the finding of guilty of the appellants arrived at by the learned trial court is mainly based on two types of evidence and they are the dying declarations of the deceased. The learned trial court has relied on the recorded dying declaration of the deceased Md. Hanif as contained in Ext. 3, which was recorded as the Fardbeyan by A.S.I. of Lauriya Police Station, and the second material on which the learned trial court has died is the oral dying declaration of the deceased Md. Hanif made before the witnesses, namely, P.W. 1. Ash Mohammad, P.W. 2 Matiuddin Ansari and P.W. 5 Tufan Mian. At this very place it will be appropriate to point out that the learned trial court has rightly rejected the evidence of P.W. 6 Safiullah, the son of the deceased Md. Hanif, on the ground that P.W. 6, Safiullah although being the son of the deceased, is not named as a witness in the Fardbeyan, which has subsequently been treated as the dying declaration after the death of Md. Hanif. We also of the view that the learned trial court has rightly not relied upon the testimony of this witness and the reasoning given by the learned trial court in this regard is quite sound and valid. However, the learned trial Court has accepted the testimony of P.W. 1 Ash Mohammad, P.W. 2 Matiuddin Ansari and P.W. 5 Tufan Mian in part. All the three witnesses have claimed to have seen both the appellants running away after shooting at the deceased and further they also speak about the oral dying declaration of Md. Hanif. The learned trial court has disbelieved the first part of the testimony of these witnesses, namely. P.Ws. 1, 2 and 5 that they saw the accused persons running away from the place of occurrence after shooting at the deceased, but has accepted the remaining part of their evidence that the deceased Md. Hanif told about the occurrence and the names of both the appellants. In our view the approach of the learned trial court does not appear to be quite justified and appreciable in view of the fact that out of the three witnesses namely P.Ws. 1, 2 and 5 as stated above relied upon by the learned trial court on the point of oral dying declaration. In our view the approach of the learned trial court does not appear to be quite justified and appreciable in view of the fact that out of the three witnesses namely P.Ws. 1, 2 and 5 as stated above relied upon by the learned trial court on the point of oral dying declaration. P.W. 1 Ash Mohammad and P.W. 2 Matiuddin Ansari are also not named in the First Information Report. So if the learned trial court has rejected the testimony of P.W. 6 Safiullah on the ground that he is not named in the First Information Report, the testimony of P.Ws. 1 and 2 also should have been rejected outright by the learned trial court on that ground. The another aspect of the matter is that if the learned trial court concluded that one part of the evidence of these witnesses was untrue, i.e. they had falsely tried to state a false story regarding the appellants having been seen by them running away, what is the guarantee of the truthfulness of the other part of the evidence given by them. The background of this case is that the deceased Md. Hanif, P.W. 2 Matiuddin Ansari and P.W. 5 Tufan Mian were accused in a murder case in which the step brother of appellant No. 2 Dharpakar Mian was murdered and they had been convicted by the trial court, but the appeal was pending in the High Court and on the date of occurrence they were on bail. Thus the enmity between the appellants and the deceased Md. Hanif, his son Safiullah (P.W. 6), P.W. 5 Tufan Mian and P.W. 2 Matiuddin Ansari was apparent. In this background the possibility that these witnesses will try to falsely implicate the appellants cannot be ruled out. Therefore, we do not think it safe to act on the testimony of any of these witnesses. Besides the reasons stated above the claim of these witnesses namely, P.Ws. 1, 2, 5 and 6 that they were told by Md. Hanif (deceased) regarding the occurrence and the names of the appellants appear to be not true and acceptable in view of the fact that in Ext. 3, the dying declaration which is the statement of Md. Hanif, the deceased has not stated that he narrated about the occurrence and the names of the appellants to any of the witnesses. Hanif (deceased) regarding the occurrence and the names of the appellants appear to be not true and acceptable in view of the fact that in Ext. 3, the dying declaration which is the statement of Md. Hanif, the deceased has not stated that he narrated about the occurrence and the names of the appellants to any of the witnesses. It may be pointed out that the witnesses, namely, P.Ws. 1, 2, 5 and 6 have made contradictory statements with regard to the manner of occurrence as well as regarding the condition of the deceased Md. Hanif. P.W. 1 Ash Mohammad and P.W. 2 Matiuddin Ansari have stated that it was stated by the deceased Md. Hanif to them that it was only appellant No. 5 Dharpakar who had fired at him while appellant Zahir Mian was standing. But P.W. 5 Turan Mian and P.W. 6 Safiullah have modified this statement by stating that the deceased Md. Hanif had stated before them that appellant Zahir Mian and appellant Dharpakar Mian both had fired at him and he received injury. Thus there is a vital contradiction regarding the oral dying declaration made by the deceased Md. Hanif before these witnesses. Apart from that P.W. 5 says that he was the first man to reach the place of occurrence after hearing the hulla and the other witnesses had come later on. While P.W. 6 Safiullah also makes a similar claim by saying that he was the first person, who had reached the spot on hulla. Thus, these witnesses contradict each other on material point so far as the oral dying declaration is concerned. It is also important to take note of the fact that P.W. 1 Ash Mohammad has stated in his cross-examination that he had found Md. Hanif unconscious. This statement of P.W. 1 has not been challenged although the other witnesses, namely, P.Ws. 2 and 6 have stated that Md. Hanif (deceased) was in his sense at the place of occurrence when they had reached the place of occurrence. So on this point also the witnesses contradict each other. In these circumstances and in the background of strong enmity, no reliance can be placed on the testimony of these witnesses. 7. The only material which remains for consideration is recorded dying declaration of Md. Hanif (deceased) i.e., Ext. So on this point also the witnesses contradict each other. In these circumstances and in the background of strong enmity, no reliance can be placed on the testimony of these witnesses. 7. The only material which remains for consideration is recorded dying declaration of Md. Hanif (deceased) i.e., Ext. 3, which was recorded as the Fardbeyan by the A.S.I., Sahabuddin Khan of Lauriya Police Station. In our view the learned trial court was not justified in acting upon this dying declaration as well, since this dying declaration also suffers from many infirmities. The first draw back is that in this dying declaration there is no witness at all. Even it was recorded as the Fardbeyan it was necessary for the police officer, who was recording the Fardbeyan, which has subsequently been treated as the dying declaration, to record the same in presence of independent witnesses but no explanation has been given by the prosecution for this omission, which is very much vital. It cannot be said that there was dearth of witnesses at the time when the dying declaration or the Fardbeyan (Ext. 3) was being recorded. It was recorded in Lauriya. State Dispensary and the doctor, compounder or the dresser would have been the best witnesses who could have been easily available to attest the correctness and authenticity of this document. Another drawback from which this dying declaration which has been made the basis for the conviction of the appellants is that the police officer, i.e. Assistant Sub-Inspector of Police Sahabuddin Khan of Lauriya Police Station who recorded this document has not been examined for the reasons best known to the prosecution. No explanation has been at all given by the prosecution for the non-examination of this witness, who in the circumstances this case, is most material witness. The learned counsel for the appellants has rightly made a serious grievance in this regard that in case the person who had recorded this document would have been examined or atleast produced by the prosecution in court, the defence would have got an opportunity to cross-examine him on several material points, but the defence has been deprived of that opportunity by which a serious prejudice has been caused to the defence. Considering Ext. 3, the dying declaration intrinsically as well, we find that according to this dying declaration two shots were fired at the deceased Md. Considering Ext. 3, the dying declaration intrinsically as well, we find that according to this dying declaration two shots were fired at the deceased Md. Hanif, but only one injury has been found by the doctor caused by fire arm. This also creates a suspicion whether the statements contained in document, i.e. Ext. 3 are the statements of Md. Hanif or not. 8. Apart from all these two witnesses who appear to be independent and are named in the First Information Report, namely, Gaji Mian and Hakik Mian have neither been produced by the prosecution in the court nor examined: These witnesses appear to be very material in view of the fact that according to the statement of the deceased, as contained in Ext. 3, the Fardbeyan, they were the persons, besides P.W. 5 Tufan Mian, who had come on hulla. In these circumstances, an adverse inference has to be drawn against the prosecution for withholding the material witnesses in this case. No doubt there is strong motive for committing the murder of Md. Hanif by the accused persons but as it is well known the enmity cuts both ways and thus there is equally strong motive for false implication of these appellants in the present case. 9. For the reasons stated above, the findings and conclusions of the learned trial court that the charge under Secs. 302/34 of the Indian Penal Code as levelled by the prosecution against the appellants has been established does not appear to be justified. 10. In the result this appeal is allowed and the judgment and orders of conviction and sentence passed by the learned trial court against the petitioners are set aside.