JUDGMENT S. Hoda, J. This appeal is directed against the judgment dated 4.2.1991 passed by the Sessions Judge, Muzaffarpur in session trial no.185/85 by which appellant no.1. Braj Nandan Sah & Gonu Sah was convicted for the offence under section 302 of the Indian Penal Code and sentenced to undergo life imprisonment and further under section 307 of the Indian Penal Code and sentenced to rigorous imprisonment for seven years. The sentences are directed to run concurrently. Appellant no. 2, Suraj Narain Sah was convicted for the offence under section 352 of the Indian Penal Code and directed to execute a bond of Rs. 5,000/- with two sureties of the like amount each to appear and receive sentence whenever called upon to do so within a period of two years from the date of execution of the bond. 2. The prosecution case is that on 11.12.1983 at about 8 A.M. when the labour of the informant, namely, Ram Swarath Mahto (not examined) was filling up earth on the ridge of his field situated in Village Lakhanpur, P.S. Katra, dist. Muzaffarpur the same was obstructed by appellant no.1 on the ground that it belonged to him i.e. appellant no.1. While talk was going on between appellant no.1 and the labour of the informant, the informant himself reached at the said field and asked appellant no.1 to allow filling up of the earth at present and later on the land would be measured by the AMIN and if the ridge is found to be in the land of the appellant no.1, he would take the same. In the meantime, appellant no. 2, Suraj Narain Sah, brother of appellant no.1 came armed with a gun. Braj Nandan Sah took the said gun in his possession and fired at the informant which hit on his right hand. The nephew of appellant no.1 Ram Sagar Bhagat, (P.W. 12) snatched the gun from the hand of appellant no.1. On hulla being raised, villagers such as, Ram Ekbal Bhagat (P.W. 15), Ranbir Bhagat (not examined) and others came and pacified the quarrel. The informant was carried to Singhwara hospital by his family members for treatment where he was examined by the doctor who referred him to D.M.H. Laheriasarai. The fardbeyan (exhibit-4) of informant, Ramchandra Bhagat (P.W. 18) was recorded by S.I.R.S. Singh, officer-in-charge, police station on 11.12.83 at 10.30 A.M. at Singhwara Police Station. 3. The informant was carried to Singhwara hospital by his family members for treatment where he was examined by the doctor who referred him to D.M.H. Laheriasarai. The fardbeyan (exhibit-4) of informant, Ramchandra Bhagat (P.W. 18) was recorded by S.I.R.S. Singh, officer-in-charge, police station on 11.12.83 at 10.30 A.M. at Singhwara Police Station. 3. The aforesaid fardbeyan was forwarded to D. C. Rai, Officer-in-charge, Katra Police station. The fardbeyan was received by the Officer-in-charge, D. C. Rai on 11.12.83 at 4 P. M. at village Lakhanpur who forwarded the same to the police station to register a case under section 307/34 of the Indian Penal Code against both the appellants. On the basis of the aforesaid fardbeyan formal F.I.R. 92/83 (exhibit-5) was registered an 11.12.83 for the offence under section 307/324 of the Indian Penal Code against the appellants. During the course of investigation witnesses including the informant, disclosed that after receiving gun shat injury, informant became unconscious. After he regained consciousness, Mahendra Bhagat (P.W. 13) and Ramsagar Bhagat (P.W. 12) told him that the appellant no.1 had fired a second shot which hit Ramsagar Gupta in his abdomen. Ramsagar Gupta subsequently died at Darbhanga Medical College Hospital. After investigation chargesheets against appellant no.1 under sections 302 and 307 of the Indian Penal Code and against appellant no. 2 under section 302/114 and 307/115 of the Indian Penal Code were submitted. The trial court convicted the appellants as aforesaid but acquitted appellant no. 2 of the charges under sections 302/114 and 307/115 of the Indian Penal Code. 4. The defence of the appellant is that they have not committed any offence as alleged by the prosecution and they have been falsely implicated. Their defence is that the present case is a counter blast to the case registered on the basis of fardbayan of appellant no.1, Braj Nandan Sah, against the informant of the present case and others. According to the defence version, Ramchandra Bhagat, Rambaran Bhagat and Mahendra Bagat came to his khalihan on 11.12.83 at 7 A.M. and they began to throw the bundles of paddy kept in the said khalihan and further Ramchandra Bhagat and Rambaran Bhagat began to throw earth in the land of his after cutting the same from the land. According to the defence version, Ramchandra Bhagat, Rambaran Bhagat and Mahendra Bagat came to his khalihan on 11.12.83 at 7 A.M. and they began to throw the bundles of paddy kept in the said khalihan and further Ramchandra Bhagat and Rambaran Bhagat began to throw earth in the land of his after cutting the same from the land. Braj Nandan Sah protested upon which Ramchandra Bhagat told that some land of his field had been encroached by him to which he replied that no part of his land had been encroached by him. Ramchandra Bhagat then called his men whereupon Ramsagar Bhagat, Lakshman Bhagat and others came over his khalihan. Ramchandra Bhagat ordered to kill him and ran to take his gun which was kept in the room of his boring. He took the gun in his possession. Thereafter, the persons surrounded him and some of them caught hold of his waist and Ramchandra Bhagat snatched his gun. Ramsagar Bhagat and Ram Udai Bahagat assaulted him with lathi. Others also assaulted him. His wrist watch and gold ring were snatched away by them. In the meantime, his cousion, Ram Sagar Sah came to save him whereupon Mahendra Bhagat fired country made pistol at him which hit him in his abdomen. Ramsagar Sah fell down and became unconscious. On the arrival of the villagers the miscreants fled away and Ramsagar Sah was sent to Darbhanga Medical College for treatment. On the basis of the said fardbeyan of Braj Nandan Sah, Katra Police Station case no. 91/83 exhibit-A was registered. It may be mentioned here that in both the cases police submitted chargesheet and both the cases were committed to the court of session for trial. It has been submitted by learned counsel for the appellants that trial arising out of Katra P. S. Case no 91/83 has been stayed. 5. In support of its case, prosecution examined 23 witnesses Out of which P.W. 4, Basudeo Bhagat, P.W. 5, Dinesh Bhagat, P.W. 7. Lalit Kumar, P.W. 9, Santosh Kumar Gupta, P.W. 10, Ram Baran Bhagat, P.W. 12 Ramsagar Bhagat, P.W. 13, Mahendra Bhagat and P.W. 18, Ramchandra Bhagat (informant) are said to be the eyewitnesses of the occurrence, P.W. 1, Dr. Om Prakash, P.W. 14. Lalit Kumar, P.W. 9, Santosh Kumar Gupta, P.W. 10, Ram Baran Bhagat, P.W. 12 Ramsagar Bhagat, P.W. 13, Mahendra Bhagat and P.W. 18, Ramchandra Bhagat (informant) are said to be the eyewitnesses of the occurrence, P.W. 1, Dr. Om Prakash, P.W. 14. Bhawesh Bhagat, P.W. 15, Ram Ekbal Bhagat, P.W. 16 Daliram Bhagat and P.W. 17, Laxman Bhagat have been tendered P.W. 3, Saudagar Bhagat, P.W. 11, Laxman Bhagat are hearsay witnesses. P.W. 2, Ramashis Prasad, P.W. 6, Viswanath Mahaseth P.W. 8, Radha Devi as well as P.W. 9, Santosh Kumar Gupta are witnesses on the point of oral dying declaration. P.W. 19. Dr. Akhouri Rabindra Kishore held autopsy over the dead body of Ramsagar Gupta. P.W. 20, Dr. Jaldhar Pd. Jha, examined the injuries on the person of Ramchandra Bhagat (informant). P.W. 21 Dularchand Rai is the Investigating officer. P.W. 22, Uma Shanker Pd. is also a Police officer who recorded the statements of P.Ws 7, 8 and 9 at Darbhanga and P.W. 23, Tirtha Narain Mallik is also a Police Officer who examined the fire arm. 6, The defence examined three witnesses D.W. 1, Dr. Ganesh Mahto, a Civil Assistant Surgeon at Sadar Hospital, Muzaffarpur who examined the injury on the person of the informant, Ramchandra Bhagat D.W. 2, Sitram Bhagat deposed about the defence version and D.W. 3, Dr. C.P. Verma, a Civil Assistant Surgeon, Sadar Hospital, Muzatfarpur who examined the injury on the person of appellant no.1. 7. In the present case, as stated above, there is counter version also and in both the cases the police after investigation submitted charge sheet against the accused persons. The question that arises for consideration in this case is whether the prosecution has been able to establish the case against the appellants. 8. Before dealing with the merit of the case, it will be relevant to mention certain salient features of this case. The place of occurrence is not disputed. The factum of fire arm injuries received by the deceased not disputed. The time of the occurrence is also not disputed. In the fardbeyan exhibit-4 there is no mention that Ramsagar Gupta received gun shot injury and among the witnesses only name of P.W. 12 Ramsagar Bhagat has been disclosed as an eye witness. The Police officer who recorded exhibit. 4 fardbeyan of the informant P.W. 18 has not been examined in this case. In the fardbeyan exhibit-4 there is no mention that Ramsagar Gupta received gun shot injury and among the witnesses only name of P.W. 12 Ramsagar Bhagat has been disclosed as an eye witness. The Police officer who recorded exhibit. 4 fardbeyan of the informant P.W. 18 has not been examined in this case. It will also be relevant to mention here that according to the evidence of the Investigating officer, P.W. 21, the statement of P.W. 6 Viswanath Mahaseth, P.W. 2 Ramashish Pd. were recorded by him on 16.12.83. Statements of P.W. 4 Basudev Bhagat, P.W. 7 Lalit Kumar, P.W. 8. Radha Devi and P.W. 9, Santosh Kumar Gupta were recorded by him on 17.12.83. Statements of P.W. 12, Ramsagar Bhagat, P.W. 10 Rambaran Bhagat, P.W. 11, Laxman Bhagat, P.W. 3, Saudagar and P.W. 5, Dinesh Bhagat were recorded by him on 31.1.84. Statement of P.W. 13 Mahendra Bhagat was recorded by him on 22.1.84 and further statement of P.W. 18 Ramchandra Bhagat was recorded on 31.1.84. 9. Mr. Braj Kishore Prasad, learned senior counsel appearing for the appellants has firstly submitted that in the fardbeyan the absence of the fact that the deceased, Ramsagar Gupta received fire arm injury at the bands of appellant no.1 and that the informant after receiving injury in his hand by fire arm became unconscious cast great doubt on the prosecution case and disclosure of these facts during the course of investigation after several days are improvements and embellishments in the prosecution case. It has been further submitted that the appellant no.1 had disclosed in his fardbeyan exhibit A with regard to the injury received by the deceased, Ramsagar Gupta, at the hand of the prosecution party and as such the prosecution has not come with clean hands. It has been further submitted that the statements of all P.W.s. were recorded by the police at a belated stage and as such their evidence should be rejected on this ground alone. In order to examine the contention of the learned counsel for the appellants, it will be relevant to examine the evidence of the eye witnesses. 10. It has been further submitted that the statements of all P.W.s. were recorded by the police at a belated stage and as such their evidence should be rejected on this ground alone. In order to examine the contention of the learned counsel for the appellants, it will be relevant to examine the evidence of the eye witnesses. 10. P.W. 4, Basudev Bhagat, in his evidence before the court, stated that on the date of the occurrence at about 8 in the morning he was washing his face by the side of the door of the informant from where he saw some altercation taking place between the informant and appellant no.1 in the informant's field situated at a distance of 40 yards with regard to the filling of earth on the ridge by the labour of the informant. He arrived at the .place and in the meantime, appellant no. 2, brothel of appellant no.1 came with gun in his hand which was taken by appellant no.1 who fired at the informant which hit in his right hand and the informant fell down. He further stated that in the meantime the deceased, Ramsagar Gupta arrived there and appellant no.1 fired at him also which hit him in his abdomen and Ramsagar Gupta fell down. He further stated that in the meantime P.W. 13, Mahendra Bhagat P.W. 15, Ram Sagar Bhagat P.W. 10, Rambaran Bhagat and P.W. 16, Baliram Bhagat arrived there who snatched the gun from the hand of appellant no.1. Thereafter appellants fled away from there. In cross-examination, he stated that in the counter case his brother, Laxman Bhagat, is an accused. In paragraph-9, he stated that before the police his statement was recorded after four days of the occurrence (but according to the Investigating officer P.W. 21 his statement was recorded on 17.12.83) In paragraph-15, he stated that Ramsagar Bhagat P.W. 12, arrived at the place of occurrence after the second firing. In paragraph-18 he stated that the informant was fired at from a distance of about 3 feet and in paragraph-19, he stated that the deceased was fired at from about 8 to 9 cubit where Mahendra Bhagat, P.W. 13, was not present. This witness denied the suggestion that the deceased, Ramsagar Gupta, was fired at by Mahendra Bhagat, P.W. 13, He further reiterated that P.W. 13 was not present there. This witness denied the suggestion that the deceased, Ramsagar Gupta, was fired at by Mahendra Bhagat, P.W. 13, He further reiterated that P.W. 13 was not present there. He further stated that at the time of firing Laxman P.W. 11, Ram Ekbal P.W. 15 and Baliram Bhagat P.W. 16, were also not present. This witness was examined by the Police for the first time on 17.12.83 i.e. about six days after the date of the occurrence and there is absolutely no explanation for not giving his statement at the earliest opportunity although this witness is resident of the same village where the occurrence is said to have taken place and the police was in the village on the date of occurrence. Further this witness claims himself to be eye witness of the entire occurrence but he does not speak a word that the informant became unconscious after receiving firearm injury in his hand. Further this witness has not been named in the fardbeyan. From the evidence, it will also appear that he was not accused in the counter case and as such there was no reason why he should have not disclosed to the police about the occurrence when the police was in the village on the same date. 11. P.W. 5, Dinesh Bhagat, is also resident of the village where the occurrence had taken place. In his evidence in court he stated that on the date of the occurrence he was at his house when he heard hulla, he went to the khalihan of appellant no.1 where he saw altercation going on between the informant and appellant no.1 and the informant was being restrained from getting earth filled on the ridge by appellant no.1. In the meantime appellant no. 2 came with gun in his hand which was taken by appellant no.1 and he fired at the informant which hit him on his right hand. He further stated that in the meantime the deceased Ramsagar arrived there who said what was being done upon which appellant no.1 fired at him which hit him in his abdomen and Ramsagar Gupta fell down. The gun was snatched by Mahendra Bhagat, P.W. 13, Ram Eqbal Bhagat, P.W., 15, Baliram Bhagat, P.W. 16. He further stated that in the meantime the deceased Ramsagar arrived there who said what was being done upon which appellant no.1 fired at him which hit him in his abdomen and Ramsagar Gupta fell down. The gun was snatched by Mahendra Bhagat, P.W. 13, Ram Eqbal Bhagat, P.W., 15, Baliram Bhagat, P.W. 16. In paragraph-5 he stated that on the next date of the occurrence he left his village and went to his sister's place from here he returned after 15 to 20 days and then he gave his statement before the police but according to the I.O. P.W. 21, the statement of this witness was recorded on 31.1.84. In paragraph 7 of his cross-examination, he stated that he did not remember on which date he had gone to his sister's place. In paragraph-8 he stated that a month after the date of occurrence his statement was recorded by the police. He further stated that he did not state before the police that he had gone to his sister's place. In paragraph-11 he stated that when he reached near the place of occurrence he saw 8 to 9 accused persons but he did not see P.W. 13, Mahendra Bhagat at the place of occurrence. He further stated that P.W. 13 arrived there after firing. This witness has also not stated that the informant after receiving fire arm injury become unconscious at the place of occurrence. Further this witness claims to be eye witness of the entire occurrence and remained in the village for the whole day but there is absolutely no reason why this witness did not disclose this fact to the police when the police was present in the village on the same date. 12. The next witness is P.W. 7, Lalit Kumar, who is a resident of village Sisia bazar in the district of Sitamarhi. In his evidence, in court, he stated that the deceased Ramsagar Gupta was his maternal uncle. On 9.12.83 he had gone to his maternal uncle and on the date of occurrence he was in village Lakhanpura. On the date of occurrence at 8 in the morning he had gone to the tubewell of appellant no.1 to take bath. He saw altercation going on between appellant no.1 and the informant with regard to the filling of earth on the ridge. In the meantime, appellant no. On the date of occurrence at 8 in the morning he had gone to the tubewell of appellant no.1 to take bath. He saw altercation going on between appellant no.1 and the informant with regard to the filling of earth on the ridge. In the meantime, appellant no. 2 arrived there with a gun in his hand which was taken by appellant no.1 and thereafter he fired at the informant which hit him on his right hand and he fell down. In the meantime deceased, Ramsagar Gupta arrived there and said what was being done upon which appellant no.1 fired at him which hit him in his abdomen and he also fell down. Thereafter, Baliram Bhagat, P.W. 16, Mahendra Bhagat, P.W. 13 and Ramsagar Bhagat, P.W. 12 snatched the gun from the hand of appellant no.1. Thereafter the appellants fled away. He further stated that his maternal aunt, wife of the deceased, also arrived there and thereafter he along with others carried Ramsagar Gupta to Darbhanga Hospital. At Darbhanga Ramsagar Gupta was treated but he died. He also stated that his statement was recorded by police at katra as well as at Darbhanga. In paragraph-10 of his cross-examination he stated that he had moved the High Court for cancellation of bail of appellant no.1. In paragraph 15 attention of this witness has been drawn to the statement recorded by the police at Darbhanga wherein he had stated that when he was at the house of his maternal uncle he came to know that there was some quarrel between the informant and Gonu (alias name of appellant no.1) with regard to the tubewell where his maternal uncle the deceased had also gone. He has further stated that he went there and while he was at the distance of 15 yards he saw Gonu taking gun from appellant no. 2 saying that it was necessary to finish them all. But these facts have been denied in court. In paragraph-16, he stated that the informant after receiving gun shot injury became unconscious. In paragraph-18 he stated that after Ramsagar Gupta received gun shot injury P.W. 12. Ramsagar Bhagat, P.W. 15, Rameqbal Bhagat, P.W. 13, Mahendra Bhagat arrived there. In paragraph 31 he stated that the deceased Ramsagar Gupta while going to hospital was conscious and even after reaching hospital he was conscious. He became unconscious after going on the bed. In paragraph-18 he stated that after Ramsagar Gupta received gun shot injury P.W. 12. Ramsagar Bhagat, P.W. 15, Rameqbal Bhagat, P.W. 13, Mahendra Bhagat arrived there. In paragraph 31 he stated that the deceased Ramsagar Gupta while going to hospital was conscious and even after reaching hospital he was conscious. He became unconscious after going on the bed. On recall by the prosecution, this witness stated that at the place of occurrence Ramsagar Gupta talked to his wife who informed her that appellant no.1 had fired at him. In cross-examination he further stated that while Ramsagar Gupta was talking to his wife there were 8 to 10 persons such as Mirchai Paswan, Satyanarain Sah (both not examined), and Baliram Bhagat, P.W. 16 According to the I.O. the evidence of this witness was recorded on 17.12.83. 13. P.W. 9, Santosh Kumar Gupta, is the son of the deceased. On the date of occurrence he was aged about 7 years. In his evidence in Court, he stated that on the date of occurrence he was going along with his deceased father. In the khalihan he saw quarrel between Gonu (appellant no.1) and the informant His father stood there to see the quarrel between them. Thereafter his father went to the khalihan and he also followed him He further stated that appellant no.1 took gun from the hand of Suraj (appellant. 2) and fired at the informant which hit him on his right hand and the informant fell down. when his father intervened the appellant no.1 fired at him which hit his father in abdomen and he also fell down. P.W. 13 Mahendra Bhagat, and others snatched the gun from the hand of Gonu thereafter both the appellants fled away. His mother arrived there to whom his father told that he had been fired at by Gonu and he should immediately be carried to the hospital. His injured father was brought to DARWAZA on the cot and from there he was taken to Darbhanga. The moment they went out of the village Gonu and Suraj caught the feet of his mother and asked her to forgive them. On reaching Darbhanga his maternal uncle was informed and then they went to the hospital. In hospital his maternal uncle Biswanath Mahaeseth. P.W. 6 and his uncle Ramasis Pd. P.W. 2 came. They asked from her mother who told them that Gonu had fired. On reaching Darbhanga his maternal uncle was informed and then they went to the hospital. In hospital his maternal uncle Biswanath Mahaeseth. P.W. 6 and his uncle Ramasis Pd. P.W. 2 came. They asked from her mother who told them that Gonu had fired. His father on repeated quary by his uncle, told that Gonu had fired at him. He further stated that his statement was recorded both by Darbhanga and Katra Police. In his cross-examination, he stated that his mother had given her evidence in court but what she stated he did not know nor he asked his mother. He further admitted that in the court his maternal uncle P.W. 2 was sitting but he had no talk with his maternal uncle. In paragraph 35 of his cross-examination, he stated that after 6 to 7 days/of the occurrence his statement was recorded by the police at Katra Police. In Paragraph-39, his attention has been drawn to the statement made by him before the police at Darbhanga to which he said that he did not remember whether he had told the police that his father had told his mother that Gonu fired at him. P.W. 22, who was officer-in-charge of Beta (Darbhanga) Police Station has stated in paragraph-6 of his cross-examination that this witness had not stated before him that his deceased father told his mother that Gonu had fired at him. In Paragraph-13 he stated that before the police at Beta (Darbhanga) he had stated that on being questioned by his maternal uncle his mother told him that Gonu had fired and that his father on repeated quary by his uncle told him that Gonu had fired at him. P.W. 22, Officer-in-charge of the Beta police station stated in his cross-examination that these facts were not stated by P.W. 9 before him. 14. The next eye witness is P.W. 10, Rambaran Bhagat. This witness is also resident of village Lakhanpur. In his evidence in court, he stated that on the date of occurrence at about 8 in the morning he had gone to the field of the informant along with him where he saw that appellant no.1 had stopped filling of earth on the ridge by Swarath Mahto The informant asked him why he had stopped the filling of earth upon which altercation took place between them. In the meantime appellant no. In the meantime appellant no. 2 arrived with a gun which was taken by appellant no.1 and then be fired on the informant which hit him on his right hand upon which he fell down and became unconscious. The deceased arrived there and asked the appellant no.1 what was he doing upon which the appellant no.1 fired at him also which hit the deceased in his abdomen and he fell down. P.W. 12, Ramsagat Bhagat P.W. 13 Mahendra Bhagat and P.W. 16 Baliram Bhagat snatched the gun from appellant no.1 and thereafter P.W. 13 went away with the gun. He further stated that when the deceased received gun shot injury his wife P.W. 8 arrived there and talked with the deceased. In paragraph 8 he stated that in the counter case he was also made accused and after he was enlarged on hail he gave his statement before the police. In cross-examination, he stated that after 15 to 20 days of the occurrence, his statement was recorded by the police but the I.O. P.W. 21 in his evidence stated that this P.W. 10 was examined on 31.1.84, He further admitted that in counter case his son Ramsagar Bhagat P.W. 12, is also an accused and that informant is his brother. In paragraph-21, he stated that when altercation was going on between appellant no.1 and the .informant there were 5 to 7 persons among whom his son Ramsagar Bhagat P.W. 12, Basudev Bhagat P.W. 4 Dinesh Bhagat P.W. 5, Tripti Thakur (not examined) Lalit Sah (not examined) and Santosh Kumar P.W. 9 were present. In paragraph-26 he stated that the informant was taken to Singhwara by Ramsagar Bhagat (P.W. 12) Rameqbal Bhagat (P.W. 15) and Mahandra Bhagat (P.W. 13) but he did not go with them. In paragraph 27, he stated that he did not remember if be stated before the police that the wife of the deceased had came to the place of occurrence. The I.O. P.W. 21 in paragraph-25 of his cross-examination stated that this witness had not stated before him that the wife of the deceased had come to the place of occurrence. 15. The next eye witness is P.W. 12 (Ramsagar Bhagat) of village Lakhanpur. In his evidence in court, he stated that on the date of occurrence at about 8 A.M. he was going to bring labour when he heard the sound of firing. 15. The next eye witness is P.W. 12 (Ramsagar Bhagat) of village Lakhanpur. In his evidence in court, he stated that on the date of occurrence at about 8 A.M. he was going to bring labour when he heard the sound of firing. He went towards the khalihan from where the sound of firing had come and he saw the informant lying down unconscious and blood was coming out from his hand. He also saw the deceased asking appellant no.1 as to why he was doing all these things upon which appellant no.1 fired at him which hit the deceased in his abdomen and he fell down. He along with Rameqbal P.W. 15, Ranbir Bhagat (not examined) and Mahendra Bhagat, P.W. 13, snatched the gun from the hand of appellant no.1. He also stated that appellant no. 2 was also along with appellant no.1 at the place of occurrence. After snatching the gun, Mahendra Bhagat went to his house. He along with others carried the informant to his house and from there to Singhwara hospital. The informant regained consciousness after reaching the hospital. On regaining consciousness the informant asked P.W. 13 from where he had brought the gun upon which they told the informant that the gun was snatched from appellant no.1 At hospital, informant was treated and thereafter carried to the police station where his statement was recorded. From there the informant was carried to Muzaffarpur Sadar Hospital because doctor at Singhwara had advised accordingly. At Muzaffarpur the gun was handed over to the police. He further stated that in the counter case, he is accused due to which he had concealed himself and after 20 to 25 days, his statement was recorded by the police. But the I. O. P.W. 21 stated in his evidence that the statement of this witness was recorded on 31.1.84, In cross examination, he admitted that the informant was his uncle. He further stated that the deceased was carried away by his wife P W. 8 his son P.W. 9, Mirchai Paswa (not examined) and P.W. 7. He also stated that he had seen the deceased talking with his wife. In paragaph-30 and 31 he stated that at Singhwara hospital the, informant was not told that Ramsagar Gupta (deceased) was also injured nor on the way to THANA. He also stated that he had seen the deceased talking with his wife. In paragaph-30 and 31 he stated that at Singhwara hospital the, informant was not told that Ramsagar Gupta (deceased) was also injured nor on the way to THANA. In paragraph-32, he stated that the informant was first carried to his house and from there he along with 3 to 4 persons carried him On Rickshaw to Singhwara hospital and from Singhwara informant was carried to Muzaffarpur by bus He further stated that at the police station they did not inform anybody as to how and who fired at the deceased and who snatched the gun. To court question as to whether the informant and had regained consciousness before reaching Muzaffarpur hospital, he on repeated asking said that the informant regained consciousness after reaching Muzaffarpur. In paragh-34, he stated that at Muzaffarpur hospital, he told the informant that how, where and who fired at Ramsagar Gupta. At about six in the evening he fled from the hospital because he come to know about the counter case. He further stated that he left hospital after the statement of informant was recorded In paragraph-38 he stated that he did not remember after how many days, of leaving the hospital, he was taken into custody He along with Rameqbal Bhagat (P.W. 15), Sushil Bhagat (not examined), Laxman Bhagat (P.W. 11), another Laxman Bhagat, P.W.17, Bhakesh Bhagat (P.W. 14) surrendered together. He further stated that he did not remember after how many days of surrender, he was enlarged on bail nor he remembered after how many days after release his statement was recorded. 16. The next eye witness is P.W. 13, Mahendra Bhagat, also resident of village Lakhanpur. In his evidence, in court he stated on the date of occurrence at about 8 in the morning he was working in the field when he heard the sound of firing of gun. On hearing the sound, he ran to the field of the informant where he found the informant in an injured condition and he saw appellant no.1 armed with a gun. The deceased was forbidding appellant no.1 thereupon he fired which hit the deceased in his abdomen and the deceased fell down. He further stated that after firing the appellant no.1 took the empty cartridge and tried to load gun with another cartridge. He along with Ramsagar Bhagat. The deceased was forbidding appellant no.1 thereupon he fired which hit the deceased in his abdomen and the deceased fell down. He further stated that after firing the appellant no.1 took the empty cartridge and tried to load gun with another cartridge. He along with Ramsagar Bhagat. P.W. 12, Ram Eqbal Bhagat, P.W.15, Baliram Bhagat, P.W. 16 snatched the gun. After snatching the gun, he ran towards his house. The informant was carried to Singhwara hospital on the cot. He also accompanied the informant to the hospital. On the way to the hospital, the informant was unconscious and he regained consciousness at the hospital After regaining consciousness he asked him from where he had brought the gun to which he replied that he had snatched it from Gonu. The informant was brought to THANA which was near to the hospital He wanted to hand over the gun to the police but he was told that he should hand over gun to the police or his Thana. Thereafter they carried the informant to Muzaffarpur Sadar Hospital. On way, he told the informant that appellant no.1 fired a second shot which hit the deceased. At hospital, the police arrived and he handed over the gun to the police who prepared the paper on which he signed and a copy of the receipt was handed over to him He further stated that after one month his statement was recorded by the police but the I. O. stated that the statement of this witness Was recorded on 21.1.84. He also admitted that he is an accused in the counter case and after he was released on bail, his statement was recorded. In cross-examination, he stated that he was released on bail after 10 to 15 days of the institution of the counter case. He is distantly related to the informant. He further stated that when he arrived at the place of occurrence there were 10 to 12 persons present who had seen the occurrence. The deceased was fired from a distance of 10 cubits. He further stated that from Singhwara, the informant was taken to Muzaffarpur hospital. On way he told the informant that appellant no.1 also fired at the deceased. 17. The last eyewitness is P.W.18, the informant Ramchandra Bhagat himself. The deceased was fired from a distance of 10 cubits. He further stated that from Singhwara, the informant was taken to Muzaffarpur hospital. On way he told the informant that appellant no.1 also fired at the deceased. 17. The last eyewitness is P.W.18, the informant Ramchandra Bhagat himself. In his evidence in court he stated that on the date of occurrence his labour, Ramswarath Mahto was filling earth on the ridge of his field which is situated at a distance of about 200 yards from his house. When he went to the field he saw appellant no.1, Brajnandan Sah @ Gonu had stopped filling of earth and on his question as to why he had stopped filling of earth appellant no.1 told that the ridge belonged to him. The informant told appellant no.1 to get it measured and then it should be taken by the person to whom it belonged. While this alteration was going on the younger brother of appellant no.1, namely, Suraj Sah came with a gun which was licenced gun of appellant no.1. Appellant no.1 took the gun from his brother and fired at him which hit him on his right hand. On receiving gun shot injury he fell down and became unconscious. After regaining consciousness, he found himself in Singhwara hospital. He further stated that he regained consciousness at about 10.30 or 11.00 A.M. On the same date he was taken to the Singhwara Police Station by P.W.14, P.W.13 and one Bindu Bhagat (not examined). At that time, he saw a gun in the hand of appellant no.13 and on his quary as to wherefrom he had brought the gun, P.W. 13 replied that he had snatched the gun from the hand of appellant no.1. He further stated that at the police station he gave his statement which was recorded by the police officer. Thereafter by bus he was taken to Muzaffarpur hospital from Singhwara hospital. He further stated that on the way he fully regained consciousness and on his quary P.W.13 and P.W. 12 told him that appellant no.1 fired a second shot which hit the deceased Ramsagar Gupta in his abdomen. At Sadar Hospital, Muzaffarpur he was admitted where he was treated. He also stated that his statement was recorded by the police officer at Muzaffarpur. At Sadar Hospital, Muzaffarpur he was admitted where he was treated. He also stated that his statement was recorded by the police officer at Muzaffarpur. He further stated that his labour Ramswarth Mahto, has been won over by the accused persons In paragraph-7 of his cross-examination, he stated that he was hit in the right arm by the gun. In paragraph-8 he stated that he did not see anyone snatching away the gun. In paragraph-9, he stated that while giving his statement to the police he had stated that the injury by fire arm to Ramsagar Gupta was known to him while he was coming to Muzaffarpur. At Muzaffarpur his statement was recorded at about 4 or 5 P.M. He further stated that he left the hospital without permission of the doctor and he met the I.O. at his door after one month. 18. P.W. 20, Dr. Jaldhar Pd. Jha on 11.12.83 was Medical Officer, Singh was a State dispensary Darbhanga. On that date he had examined the informant P.W.18 at 9 A.M. and he found the following injuries on his person. 1. One lacerated wound 2" X 2" X 1" on the medial side of the right hand with profuse bleeding. 2. One lacerated wound 1" X I" connected with injury no.1 on the medial side of the right palm with a blackened and tatooing mark. This witness stated in his evidence that the opinion was reserved regarding the nature of the injuries and the patient was referred to Medical college for x-ray. He further stated that both the injuries were caused by gun shot from the range of 3 feet and were caused within 9 hours of the time of examination. In cross-examination, he stated that he did not find any pillet in the wound. He further stated that he simply gave first aid and thereafter referred the case to the Medical College. He denied the suggestion that the injury report was antedated. The injury report is exhibit-3, A perusal of exhibit-3, will show that the informant was referred to the Medical Officer, Singhwara by the Officer-in-charge, Singhwara Police station but it is nowhere mentioned in the forwarding letter of the Officer-in-charge that the informant was in an unconscious state even doctor who examined the informant at 9 A.M. has not stated that the informant was unconscious. P.W.18, has himself stated in his evidence that he regained consciousness at 10.30 or 11 A.M. and then he found himself at Singhwara hospital but exhibit-3 does not disclose this fact. It may be mentioned here that the Officer in charge. Singhwara has not been examined by the prosecution. The defence also examined D.W. 1, Dr. Ganesh Mahto, who was Civil Assistant Surgeon, Muzaffarpur Sadar Hospital on 11.12.83. This witness had also examined the informant P.W. 18 on 11.12.83 at 1.30 P.M. and found the following injury. 1. Lacerated wound of right lateral palm (above the 5th finger) with profuse bleeding. The dimension was 3" x 1"-X-ray showed fracture of right base of 5th metacarpal bone. The doctor stated in his evidence that the injury was grievous in nature caused by hard blunt substance such as lathi or big piece of brick. The age of injury was within 12 hours. The injury report of the doctor is exhibit-B. In cross-examination he stated that the aforesaid injury was possible by pillet. Thus, the evidence of D.W, 1 as well as from the perusal of exhibit-B the injury report, it would appear that there was no tatooing and blackening mark found as stated by P.W. 20. Thus there is variance in the injury report exhibit-3 and exhibit B. There is also variance in the evidence of P.W. 20 and D.W. 1. 19. P.W. 21. Dular Chand Rai, is the Investigating Officer of this case. In his evidence, he stated on 11.12.83, he was Officer-in-charge of Katra Police Station. On the said date Dafadar Prabhu Yadav, (not examined) brought a fardbeyan of the informant from Singhwara Police station which was written in the hand of the Officer-in-charge, Singhwara Police station Ramsenghasan Singh (not examined). The said fardbeyan has been marked as exhibit 4. On the basis of said fardbeyan, he instituted the case and took up investigation. He inspected the place of occurrence and found the Khalihan besmeared. He further stated that on 12.12.83 he received production list exhibit-6 from the Muzaffarpur Town police station in regard to the gun. The said production list was in the writing of S.N. Thakur, Sub Inspector (not examined). He also proved receipt granted by A.S.I.S.N. Thakur in favour of Mahendra Bhagat, P.W. 13 with regard to the receipt of the gun the said receipt has been marked as exhibit-7. The said production list was in the writing of S.N. Thakur, Sub Inspector (not examined). He also proved receipt granted by A.S.I.S.N. Thakur in favour of Mahendra Bhagat, P.W. 13 with regard to the receipt of the gun the said receipt has been marked as exhibit-7. It may be mentioned here that neither production list exhibit 6 nor the receipt exhibit 7 disclose as to why the gun was deposited at the police station by P.W.13. This witness has further stated that on 15.12.83 he went to Lahariasarai and took the statement of Biswanath Pd. Mahaseth P.W. 6, Ramasis Pd. P.W. 2, Dr. Om Prakash P.W. 1 and others. In paragraph-6 he stated that he received formal case diary from Beta village. He also stated that the gun was sent for inspection. He took further statement of P.W. 18 and also took the statement of Ramsagar Bhagat P.W. 13, Rambarn Bhagat, P.W. 10 Laxman Bhagat P.W. 11, Saudagar P.W. 3 and Dinesh Bhagat P.W. 5 of 31.1.84. He also stated that he took the statement of Basudev Bhagat P.W. 10, Lalit Kumar P.W. 7, Radha Devi P.W. 8, Santosh Kumar P.W. 9. and Mahendra Bhagat P.W. 13 on 17.12.83. But in cross-examination, he stated that he took the statement of P.W. 13 on 22.1.84. In paragraph-11 of his cross-examination, he stated that he recorded fardbeyan of appellant no.1. Brajnandan Sah on 11.12.83 in Lakhanpur village at 11 A.M. on the basis of said fardbeyan he instituted a case and took up investigation and he also submitted charge sheet bearing P. S. Case no. 91/83 dated 11 12.83. The said fardbayan has been marked as exhibit A. He further stated that on the same day at 4 P.M, he received the fardbeyan of P.S. Case no. 92/83. In paragraph-14, he stated that on 13.12.83 he went to Sadar Hospital, Muzaffarpur at 12.30 P.M. to take statement of Ramchandra Bhagat, the informant but he was not found there. According to this witness he received the injury report of the informant from Sadar Hospital on 31.12.83 and on 17.1.84 he also received injury report of the informant from Singhwara hospital. 20. P.W. 22, Uma Shankar Prasad, was officer-in-charge of sub police station, Beta (Darbhanga) on 11.12.83. According to this witness he received the injury report of the informant from Sadar Hospital on 31.12.83 and on 17.1.84 he also received injury report of the informant from Singhwara hospital. 20. P.W. 22, Uma Shankar Prasad, was officer-in-charge of sub police station, Beta (Darbhanga) on 11.12.83. In his evidence, he stated that on that date, he received O. D. Slip from Darbhanga Medical College Hospital and accordingly he recorded Sanha 194 dated 11.12.83 and proceeded to Darbhanga Medical College and Hospital and found the deceased Ramsagar Bhagat in an injured condition. He was lying on bed no.19 in an unconscious state. He took the statement of Satyanarain Pd. (not examined), Lalit Kumar, P.W. 7, Rada Devi P.W. 8 and Santosh Kumar P.W. 9. On 12.12.83 at 8.15 P M, he received an information that Ramsagar Gupta had died and accordingly, he registered Sanha no. 204 dated 12.12.83 and proceeded to DMCH. 21. P.W. 23 Tirth Narain Mallick, was Sergeant Major on 14.12.83 at Muzaffarpur. At that time, his function was to respect fire arm. On that date he received double barrel gun form the officer-in-charge of Katra Police station who was Investigating case no 91/83 and 92/83. After inspection, he submitted inspection report. He found the gun effective. The said report is exhibit 10. In cross-examination, he stated that on inspection he found that the gun had been fired but he could not ascertain the time of firing. 22. Thus from the evidence discussed above, following facts are established.- 1. In the fardbeyan of informant P.W. 18 there is no mention of the injury received by the deceased at the hands of appellant no.1. The story of causing fire arm injury to the deceased by appellant no.1 has been disclosed for the first time on 15.12.83. 2. The fact that the informant became unconscious after receiving fire arm injury on his right palm has not been disclosed in the fardbeyan but has been disclosed during the course of investigation at a much belated stage for which there is no reasonable explanation 3. The informant P.W.18, himself stated in his evidence that he regained consciousness at about 10.30 to 11 A.M. The Doctor P.W. 20 Dr. Jaldhar Pd. who examined the informant at 9 A.M. has not said that the informant was unconscious. 4. The informant P.W.18, himself stated in his evidence that he regained consciousness at about 10.30 to 11 A.M. The Doctor P.W. 20 Dr. Jaldhar Pd. who examined the informant at 9 A.M. has not said that the informant was unconscious. 4. The informant was examined by the doctor P.W. 20 on being forwarded by Officer-in-charge Singhwara Police station R.S.S. Singh (not examined) but his forwarding note does not mention that the informant was unconscious. 5. Exhibit-3 is the injury report of the informant given by P.W. 20 whereas exhibit-B is also injury report of the informant given by D.W. 1, Both the injury reports are of 11.12.83, the first one was at 9 A.M. and the second one was at 1.30 P.M. There is variation in the injury reports. Exhibit-3 speaks of blackening and tatooing mark whereas exhibit B there is no mention of blackening and tatooing mark. 6; In fardbeyan the informant had stated that after appellant no.1 had fired at him his nephew, Ramsagar Bhagat, P.W. 12 snatched the gun from the hand of appellant no.1 but in his evidence in court as well as according to other witnesses the snatching of gun was disclosed to the informant by the witnesses. 7. In the fardbeyan P.W. 12, Ramsagar Bhagat, has been named as the only eye witness but in court P.Ws. 4, 5, 7, 9, 10 and 13 came forward to say that they were also eye witnesses of the occurrence. 8. According to the evidence of I.O. he was present in the village when he received fardbayan exhibit-4 but there is no sufficient reason for the eye witnesses for not disclosing the occurrence at the earliest opportunity. The statement of the eye witnesses were recorded by the I.O. after lapse of several days. 9. P.W. 3 Saudagar Bhagat P.W. 4 Basudeo Bhagat, P.W.5 Dinesh Bhagat P W. 8, Radha Devi P.W. 9 Santosh Kumar Gupta and P.W. 11, Laxman Bhagat who are said to have gone at the place of occurrence and seen the informant and the deceased in an injured condition but they have not stated a word that the informant was unconscious. 10. 10. P.W. 3 Saudagar Bhagat, P.W. 4 Basudeo Bhagat, P.W. 5 Dinesh Bhagat, P.W.10 Rambaran Bhagat, P.W. 11, Laxman Bhagat, P.W. 14 Bhawesh Bhagat, P.W.15 Ram Eqbal Bhagat, P.W. 16 Baliram Bhagat, and P.W. 17 Laxman Bhagat in their evidence have stated that after the occurrence they were in the village but still there is no reason why they did not disclose the fact of injury caused to the deceased appellant no.1 to the police when the police was present in the village itself at 11 A.M. 11. P.W. 12 Ramasagar Bhagat, and P.W.13, Mahedra Bhagat in their evidence stated that they had accompanied the informant P.W.18 to Singhwara as well as Muzaffarpur but still they did not take any step to give information to the Police with regard to the injury caused to the deceased at the hand of the appellant no.1. 12. P.W. 18 the informant stated in his evidence that at Muzaffarpur his statement was recorded by the police at about 4 or 5 P.M. P.W. 21 the Investigating Officer stated in his evidence that when he went to Sadar hospital, Muzaffarpur on 13.12.83 at about 12.30 P. M. to take the statement of the informant he did not find him. P.W. 18 himself admitted that he left the hospital without the permission of the doctor and he met the I.O. at his door after one month which is borne out form the evidence of P.W. 21 where he stated that P.W.18 was further examined on 31.1.84. 13. From the evidence of P.W.s. 4, 5 and 7 it will appear that P.W. 13 Mahendra Bhagat could not be an eye witness of the occurrence. 23. Learned counsel for the appellants has placed reliance on the case of Sonia Bahera Vs. State of Orissa 1983 SC 491 in which it was held that the conduct of the eyewitnesses in not telling anybody about incident on the date of incident also makes their evidence not worthy of acceptance. In the case of Ganesh Bhavan Patel and another Vs. State of Maharastra 1979 SC 136 the Supreme Court held "delay of a few hours, simpliciter, in recording the statements of the eye witness, may not by itself, amount to serious infirmity in the prosecution case. In the case of Ganesh Bhavan Patel and another Vs. State of Maharastra 1979 SC 136 the Supreme Court held "delay of a few hours, simpliciter, in recording the statements of the eye witness, may not by itself, amount to serious infirmity in the prosecution case. But it may assume such a character if there are concomitant to circumstances to suggest that the investigator was deliberately marking time with a view to decide the shape to be given to the case and the eye witness to be introduced." A Division Bench of Orissa High Court in the case of Mackana Baja Vs, State in 1986 Cr. L.J. 433 held that the credibility of nondisclosure of occurrence by witness, to anyone until after commencement of police investigation two days later without any explanation cannot be accepted. From the principles laid down in the aforesaid cases, it has been submitted that the evidence of P.Ws. 4, 5, 10, 12, 13 and 18 should not be relied upon. 24. Mr. K. P. Gupta, on the other hand, submitted that the delay in examination of the witnesses under section 161 of the Cr.P.C. is immaterial as they have given sufficient explanation for the same. In support of his contention, he has referred to the case of Ranbir and others Vs. State of Punjab 1973 SC 1409 where it was held that "the question of delay in examining a witness during the investigation is material only if it is indicative and suggestive of Some unfair practice by the investigating agency for the purpose of introducing a got up document to falsely support the prosecution case." He has further relied on a case reported in 1973 SC 2673 Ram Prasad and others Vs. State of U.P. In this case, statement of one of the witnesses was recorded during the course of investigation after a delay of 25 days. The Supreme Court held that a mere delay by the Investigator and in recording the' statement would not justify the rejection of evidence of such a witness, as the witness had given reasonable explanation for the same. Yet in another case reported in 1986 SC 990 Lalli & Chiranjib Bhowmick Vs. The Supreme Court held that a mere delay by the Investigator and in recording the' statement would not justify the rejection of evidence of such a witness, as the witness had given reasonable explanation for the same. Yet in another case reported in 1986 SC 990 Lalli & Chiranjib Bhowmick Vs. State of West Bengal where' there was a delay of 56 days in recording the statement by the Investigator of the main eye witness, Supreme Court held that satisfactory explanation was given for delay in recording the statement which was considered and accepted by the Sessions Judge as well as the High Court and as such the Supreme Court declined to interfere with the concurrent finding. 25. In the light of the aforesaid decisions, it has to be seen whether the evidence of P.Ws. 4, 5, 10, 12 and 13 who were examined by the police after a lapse of several days can be accepted or not. I have already discussed the evidence of the aforesaid witnesses, from which it will appear that there is no satisfactory explanation for their not having given their statement before the police at the earliest opportunity. Although some of the witnesses have stated that they were accused in the counter case filed by appellant no.1 and for fear of that they did not make any statement before the police. This, in my view, is not sufficient explanation for not having disclosed the name of the assailant. They being the prosecution witnesses and if in their opinion the prosecution version was the correct version and they had seen the occurrence it was their duty to immediately inform the police about such a serious nature of case. P.Ws. 12 and 13 had accompanied the informant first to Singhwara Hospital and then to Muzaffarpur Sadar hospital but none of them disclosed this fact either to Singhwara Police or to the Police at Muzaffarpur. Moreover, name of none of the witnesses except P.W.12 has been mentioned in the Fardbeyan. P.W.18, the informant had not stated in the Fardbeyan that he had become unconscious after receiving injury in the palm but he introduced the fact of unconsciousness in his evidence in court. Moreover, name of none of the witnesses except P.W.12 has been mentioned in the Fardbeyan. P.W.18, the informant had not stated in the Fardbeyan that he had become unconscious after receiving injury in the palm but he introduced the fact of unconsciousness in his evidence in court. Further, in his evidence, he stated that he regained consciousness at hospital at about 10.30 to 11.00 A.M. but P.W. 20, the doctor who examined him at 9.00 A.M. has not mentioned either in the injury report or in his evidence that •at the time of examination he was unconscious. P.W. 18 was referred to Singhwara Hospital by Singhwara Police but that forwarding note also does not disclose that the informant was unconscious. 26. Under the Code of Criminal Procedure a duty is cast on every person aware of the commission of an offence under section 302 of the Indian Penal Code, in the absence of any reasonable excuse, the burden of proving which excuse lies on the person so aware, to inform forthwith to the nearest Magistrate or Police Officer, of such commission. In the present case from the evidence discussed above it will appear that there is absolutely no reasonable excuse for not disclosing forthwith the fact that the deceased was shot at by appellant no.1. Having regard to the facts aforesaid and the other embellishments and concomitants pointed out above the evidence of P.Ws. 4, 5, 10, 12, 13 and 18 do not inspire Confidence and has to be rejected. So far the evidence of P.Ws. 7 and 9 are concerned, I will advert to it later. 27. Learned counsel for the appellants has next submitted that even the conviction on the basis of oral dying declaration disclosed by P.W.s. 2, 6, 7, 8 and 9 are also not worth reliance as this is a very weak piece of evidence. Further this being an important fact was never put to the appellant when he was examined under section 313 Cr.P.C. and as such no conviction of the appellant can be sustained on the basis of their evidence. In order to appreciate the contention of the learned counsel in regard to oral dying declaration the evidence of P.W.s. 2, 6 and 8 have to be seen. Evidence of P.Ws. 7 and 9 have already been noticed above. 28. In order to appreciate the contention of the learned counsel in regard to oral dying declaration the evidence of P.W.s. 2, 6 and 8 have to be seen. Evidence of P.Ws. 7 and 9 have already been noticed above. 28. P.W. 2, Ramasis Prasad, own brother of the deceased in his evidence stated that on 11.12.83 he was at his house at Darbhanga when he received an information at 11 A.M. from Biswanath Mahaseth P.W. 6, that the deceased has received fire arm injury and was admitted in Darbhanga hospital. He went along with P.W. 6 and found his brother the deceased in an injured condition. On repeated quary, the deceased opened his eyes and told him in presence of P.Ws, 6, 7, 8 and his servant Mirchai Paswan (not examined) that Gonu had fired at him. He further stated that as soon as he arrived at the hospital P.Ws. 8 and 9 told him that Gonu had fired at the deceased. In Paragraph-13 of his cross-examination he states that when he arrived at the hospital at 11.30 A.M, he found Ramsagar Gupta unconscious. Further in paragraph-16 he stated that he did not tell the police that when he along with P.W. 1 and P.W.6 arrived at the hospital he found the deceased unconscious but the I.O. P.W. 21 in paragraph-16 stated that P.W. 2 had told him that when he reached at the hospital he found his brother Ramsagar Gupta Unconscious, but some how the deceased could see them and told that Gonu had fired at him. In paragraph-19, this witness stated that he told the police that he had a talk with P.Ws. 8 and 9 but the I.O. stated that this witness had not so stated before him. 29. P.W.6, Biswanath Mahaseth, who is brother-in-law of the deceased stated in his evidence in Court that on 11.12.83 he was posted at Darbhanga. On that date one Satyyanarain Sah (not examined) of village Lakhanpur informed him that the deceased had received fire arm injury. He asked him to carry the deceased to the hospital and he himself informed P.W. 2 and he along with P.W. 2 went to the hospital. In hospital, he found P.Ws. 8 and 9 near the deceased and he also saw P.W. 7 and one Mirchai Paswan (not examined). He asked him to carry the deceased to the hospital and he himself informed P.W. 2 and he along with P.W. 2 went to the hospital. In hospital, he found P.Ws. 8 and 9 near the deceased and he also saw P.W. 7 and one Mirchai Paswan (not examined). When he asked his sister P.W. 8 she told him that appellant no.1 had fired at the deceased. He further stated that on repeated quary by P.W. 2 the deceased told him that appellant, Gonu, had fired at him. Thereafter Ramsagar Gupta became unconscious and he Lever regained consciousness. In paragraph-I7 of his cross-examination he stated that before the police he had stated that at the hospital his sister told him that Gonu had fired at Ramsagar Gupta but P.W. 21 in paragraph-21 stated that this witness had not so stated before him. In paragraph-18 he stated that he had not stated before the police that when he reached the hospital he found Ramsagar Gupta unconscious on bed but P.W. 21 stated that P.W. 6 had slated before him that when he reached hospital Ramsagar Gupta was unconscious on bed, but somehow the deceased saw them and told them that Gonu had fired at him. 30. The next witness is P.W. 8, Radha Devi, wife of the deceased. She stated in her evidence in court that on the date of occurrence she heard that there was some quarrel between the informant and the appellant no, 1 at Khalihan where her husband had also gone. After sometime, she heard the sound of firing and she went towards the khalihan and while she was on way she heard sound of another firing when she reached at the khalihan she found her husband lying on the ground with fire arm injury in his abdomen. Her husband told her that Gonu had fired at him and he should be carried to Darbhanga immediately. She also saw the informant injured. She brought her husband first at the Darwaja and from there carried him to Darbhanga. She further stated that when she came out of the village both the appellants caught hold of her feet and pleaded for mercy. She carried her husband to Darbhanga by bus and after reaching Darbhanga she sent information through Satyanarain to her brother P.W. 6, and then proceeded to hospital. She further stated that when she came out of the village both the appellants caught hold of her feet and pleaded for mercy. She carried her husband to Darbhanga by bus and after reaching Darbhanga she sent information through Satyanarain to her brother P.W. 6, and then proceeded to hospital. Within 10 minutes her brother P.W.6 along with P.W.2 reached at the hospital. On their quary, she informed them that Gonu had fired at her husband. P.W. 2 also asked from her husband about the incident and on repeated quary her husband told him that Gonu had fired at him. In paragraph-17 she stated that at Darbhanga the police had recorded her statement. In paragraph-18 of her cross-examination she stated that when she reached at the Khalihan there were 20 to 25 persons and among them she did not remember whether her son was present or not. In paragraph-23 she stated that when her husband was telling her there were several persons near about. She further stated in paragraph - 27 that 20 to 25 persons who were present there did not ask anything from her husband. In paragraph-28 she stated that she did not remember whether she had stated before the police at Beta that in the hospital she had told her brother that Gonu had fired at her husband. P.W. 22 who was officer-in-charge of Beta police station has stated in his cross-examination in paragraph-5 that P.W. 8 had not stated before him that she told her brother that Gonu had fired at her husband. In paragraph-29 she stated that she did not remember if she had told the police at Katra the fact that she told her brother at the hospital that Gonu had fired at her husband. P.W.22 in paragraph-23 of his cross-examination stated that P.W. 8 had not stated before him that she had told her brother that Gonu had fired at her husband. Further in paragraph-31 she stated that she did not remember if before the police at Beta she stated that on making quary by P.W. 2 her husband had told him that Gonu had fired at him nor did she remember whether at Katra she had stated before the police this fact, P.W. 22 in paragraph-23 slated that P.W. 8 had not stated before him that the deceased on being questioned by P.W.2 had told him that Gonu had fired at him. These are the witnesses who are on the point that the deceased had told them that it was the appellant no.1 who, fired at him. 31. From the evidence of P.W.s. 2, 6, 7, 8 and 9 as well as the evidence of P.W. 21 it will appear that their statements under section 161 Cr.P.C. were recorded at a much belated stage i.e. on 16.12.83 and 17.12.83. Further Ramsagar Gupta is said to be shot at on 11.12.83 and he died on the same date but there is absolutely no reason why no information was lodged at the police station. P.W. 9 the son of the deceased who is said to have seen the occurrence has not stated that the informant became unconscious after receiving injury. Even P.W. 8 the wife of the deceased who is said to have reached the place of occurrence immediately after the occurrence and talked to the deceased has not stated that the informant was unconscious nor P.W. 7 who also claims to be an eye witness has slated that the informant become unconscious after receiving injury. P.W. 8 has stated that she talked to the deceased at the place of occurrence but this fact has not been supported by P.Ws. 4, 5, 12 and 13 who claimed themselves to be eye witnesses. P.W. 9 has stated that when her mother arrived at the place of occurrence his father had told her that appellant no.1 had fired at him but P.W.8 has stated in her cross-examination that she did not remember if P.W. 9 her son was present at the place of occurrence. P.W. 6 in his cross-examination has stated that he had told the police that his sister P.W. 8 had told him in the hospital that Gonu (appellant no.1) had fired at Ramsagar Gupta but the I.O. P.W. 21 has stated in cross examination that P.W. 6 had not stated so before him. Moreover from the evidence of P.Ws. 2 and 6 it will appear that when they arrived at the hospital they found Ramsagar Gupta unconscious and in such situation it is difficult to believe if Ramsagar Gupta could have told the name of his assailant. 32. Moreover from the evidence of P.Ws. 2 and 6 it will appear that when they arrived at the hospital they found Ramsagar Gupta unconscious and in such situation it is difficult to believe if Ramsagar Gupta could have told the name of his assailant. 32. It has been submitted by learned counsel for the state that P.W. 9, minor son of deceased, is an eye witness of the occurrence and in that view of the matter, he had stated in his evidence the fact which he had seen and there is no reason to disbelieve this witness. Further the fact that the statements of P.Ws. 7, 8 and 9 were recorded by the officer-in-charge, Beta Police Station, at the earliest opportunity where P.Ws 7 and 8 had disclosed that the deceased had told them that it was the appellant who had fired at him and P.W. 9 had himself seen the occurrence. Hence in this fact the evidence of P.Ws. 7, 8 and 9 cannot be disbelieved. Mr. Prasad learned counsel on behalf of the appellants, has submitted that the statements of P.Ws. 7, 8 & 9 recorded under section 161 of the Cr. P. C. by the Officer-in-charge of Beta Police Station are of no avail to the prosecution the said Officer-in-charge had no jurisdiction to investigate the case as the place of occurrence was beyond the jurisdiction of Beta Police station. Section 156 of the Cr. P. C. gives power to police officer to investigate any cognizable case which a court having jurisdiction over the local area within the limit of such station would have power to enquire into or try under the provision of Chapter-XIII. But section 161 Cr.P.C. provides that any Police Officer making an investigation or any Police Officer not below such rank as the State Government may, by general or special order, prescribe in this behalf acting on the requisition of such officer may examine orally any person supposed to be acquainted with the facts and circumstances of the case. Moreover the stage of recording of statement under section 161 Cr.P.C. comes only after an information with regard to a cognizable case is lodged at the police Station. In the present case no information was ever lodged at any police station with regard to the firing by appellant no.1 to the deceased by the prosecution party. Moreover the stage of recording of statement under section 161 Cr.P.C. comes only after an information with regard to a cognizable case is lodged at the police Station. In the present case no information was ever lodged at any police station with regard to the firing by appellant no.1 to the deceased by the prosecution party. In view of the provision contained in section 161 Cr. P.C. the officer-in-charge, Beta police station could have recorded the statement of P.Ws. 7, 8 and 9 only on the requisition sent by the Investigating officer of this case. There is nothing on the record to show that the Investigating Officer of this case had sent requisition to the officer-in-charge, Beta police station. In view of the provision contained in section 156 and 161 Cr.P.C. the prosecution cannot take advantage of the fact that P.Ws. 7, 8 and 9 had disclosed at the earliest opportunity the factum of killing of deceased by appellant no.1. 33. Mr. Prasad further submitted that the defence can take advantage of the contradiction in regard to the statement made by P.Ws. 7, 8 and 9 before the Beta Police Station under section 145 of the Evidence Act. The contention of the learned counsel appears to have substance. Section 145 of the Evidence Act, provides that a witness may be cross-examined as to previous statement made by him in writing or reduced into writing and relevant to matters in question. without such writing being shown to him or being proved, but it is intended to contradict him by the writing, his attention must before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. In view of the aforesaid provision the previous statements of P.Ws. 7, 8 and 9 can be used only for the purpose of contradiction. It may also be noticed that the statements of P.Ws. 7, 8 and 9 was recorded by the Investigating officer on 17.12.83 and there is no explanation why the statements were recorded belately. Further no F.I.R. was lodged by either of the P.Ws. with regard to the injury caused by appellant no.1 to the deceased at Darbhanga. In view of the discussions made above and embellishments pointed out in their evidence is also not worth reliable 34. Further no F.I.R. was lodged by either of the P.Ws. with regard to the injury caused by appellant no.1 to the deceased at Darbhanga. In view of the discussions made above and embellishments pointed out in their evidence is also not worth reliable 34. Further the fact that the deceased disclosed the name of the assailant has not been put to appellant no.1 in his examination under section 313 of the Code of Criminal Procedure and hence this could not be used against him. In support of his contention learned counsel has placed reliance on the case of Sharad Birdhichand Sarda vs. State of Maharashtra 1984 SC 1622. In this case Supreme Court has held as follows: "Apart from the aforesaid comments there is one vital defect in some of the circumstances mentioned above and relied upon by the High Court, viz circumstances Nos. 4, 5, 6, 8, 9, 11, 12, 13, 16 and 17 As these circumstances were not put to the appellant in his statement under section 313 of the Criminal Procedure Code they must be completely excluded from consideration because the appellant did not have any chance to explain them. This has been consistently held by this Court as far back as 1953 where in the case of Hate Singh Bhagat Singh V. State of Madhya Bharat AIR 1953 SC 468 this Court held that any circumstance in respect of which an accused was not examined under section 342 of Criminal Procedure Code cannot be used against him. Ever since this decision, there is a catena of authorities of this Court uniformly taking the view that unless the circumstance appearing against an accused is put to him in his examination under section 342 or section 313 of the Criminal Procedure Code, the same cannot be used against him. Ever since this decision, there is a catena of authorities of this Court uniformly taking the view that unless the circumstance appearing against an accused is put to him in his examination under section 342 or section 313 of the Criminal Procedure Code, the same cannot be used against him. In Shamu Balu Chaugule V. State of Maharashtra, (1976) I SCC 438 ( AIR 1976 SC 557 ) this Court held thus: "The fact that the appellant was said to be absconding, not having been put to him under section 342, Criminal Procedure Code, Could not be used against him." To the same effect is another decision of this Court in Harijan Megha Jesha V. State of Gujarat AIR 1979 SC 1566 where the following observations were made: In the first place, he stated that on the personal search of the appellant, a chadi was found which was bloodstained and according to the report of the serologist it contained human. blood. Unfortunately however, as this circumstance was not put to the accused in his statement under section 342, the prosecution cannot be permitted to rely on this statement in order to convict the appellant. " It is not necessary for us to multiply authorities on this point as this question now stands concluded by several decisions of this Court. In this view of the matter, the circumstances which were not put to the appellant in his examination under section 313 of the Criminal procedure Code have to be completely excluded from consideration." 35. In the light of the aforesaid decisions, the circumstance which is not put to the appellant in his examination under section 313 Cr.P.C. has to be completely excluded from consideration. In the present case, the fact that the deceased had disclosed the name of appellant no.1 as his assailant has not been put to the appellant no.1 in his examination under section 313 Cr. P.C. This being an important fact cannot be used against appellant when the same was not put to the appellant no.1 when he was examined under section 313 Cr.P.C. This fact coupled with the fact that evidence of the eye-witnesses on the point are descripant completely belies the prosecution case. 36. P.C. This being an important fact cannot be used against appellant when the same was not put to the appellant no.1 when he was examined under section 313 Cr.P.C. This fact coupled with the fact that evidence of the eye-witnesses on the point are descripant completely belies the prosecution case. 36. It has also been contended on behalf of .the appellants that almost all the prosecution witnesses are highly interested and in such a. situation independent corroboration was necessary which is lacking in this case P.Ws. 2, 6, 7, 8 and 9 are related to the deceased. P.W.s. 10, 12, 13 and 18 are all accused in a counter case lodged by appellant no.1. Thus, aforesaid witnesses are either related or accused in the counter case must be interested in the conviction of the appellants and in view of the embellishment and concomitants pointed in their evidence and especially when there is a counter version also, it was necessary that there should have been corroboration by independent evidence. 37. Thus, from the discussion made above and the embellishments and concomitants pointed above the prosecution has not come out with a true version of the occurrence and as such charge under section 302 of the Indian Penal Code is not proved against appellant no.1 beyond all reasonable doubt. 38. The next point that arises whether the appellant no.1 can be held guilty for the offence under section 307 of the Indian Penal Code for having caused injury by fire arm to the informant. In this connection, it has been submitted by learned counsel for the appellants that the occurrence is said to have taken place on 11.12.83 and the fardbeyan exhibit-4 was also recorded on the same date and the F.I.R. was also instituted on the very same date but the same was received in court on 13.12.83 and there is no explanation as to why the same was received in the court on 13.12.83. In support of his contention, reliance has been placed in the case of Iswwar Singh Vs. In support of his contention, reliance has been placed in the case of Iswwar Singh Vs. State of U.P. 1976 SC 2423 where it was held that extra ordinary delay in sending the F.I.R. the report to the Magistrate is a circumstance which provides legitimate basis for suspecting that the first information report was recorded much later than the stated date and hour affording sufficient time to the prosecution to introduce improvements and embellishments and set up a distorted version of the occurrence. In the present case, as pointed out the F.I.R. was instituted on 11.12.83 at 4 P. M. and as it appears from the endorsement made in F.I.R. exhibit 5 that it was despatched from the police station on 12.12.83 the time of despatch is not stated but it appears from the record that the same was received by the Magistrate on 13.12.1983. Section 157 of the Code of Criminal Procedure requires that the first information report is to be sent forthwith to the Magistrate competent to take cognizance of the offence but there is no explanation for the delay in sending the report to the Magistrate. Learned counsel for the State has submitted that the question of delay in sending the report to the court will not affect the prosecution case as the eye witnesses have clearly stated that it was appellant no.1 who fired with the gun at the informant and factum of firing is corroborated by the evidence of P.W. 23 who examined the gun and submitted his inspection report (Exhibit-10) from which it will appear that the gun was recently fired with both the barrels. From the perusal of Exhibit-10 It will appear that the gun was received by P.W. 23 for examination on 11.12.83 who gave his report on 14.12.83. He has not specified definite time of firing nor there is mention of any circumstance on which he came to the conclusion that the gun was recently fired. In his cross-examination he has specifically stated that he was not able to ascertain the time of firing. Thus neither from the evidence of P.W. 23 nor from Exhibit-10 it can be inferred that recent firing will relate to the date of occurrence. In his cross-examination he has specifically stated that he was not able to ascertain the time of firing. Thus neither from the evidence of P.W. 23 nor from Exhibit-10 it can be inferred that recent firing will relate to the date of occurrence. Hence, in view of unexplained delay in sending the first information report to the court and the circumstances already enumerated above the evidence of the eye-witnesses cannot be accepted at its face value. Thus, the charge under section 307 of the Indian penal Code against appellant no.1 is also not established beyond all reasonable doubt. 39. In view of the discussions and reason stated above, the charge under section 352 I.P.C. against appellant no. 2 is also not established beyond all reasonable doubt. 40. In the result, this appeal is allowed and the conviction of appellant no.1 under sections 302 and 307 of the Indian Penal Code as well as conviction of appellant no. 2 under section 352 of the Indian Penal Code are set aside. Appellant no.1 is directed to be set at liberty forthwith and appellant no. 2 is discharged from the liabilities of bond. I agree. Appeal allowed.