Judgment NARINDER SINGH RAO and S.K.CHATTOPADHYAYA JJ. 1. Sanjay Singh alias Pappu, the appellant, stands convicted under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life. He has also been sentenced to undergo rigorous imprisonment for seven years under Section 27 of the Indian Arms Act. His sentences have been ordered to run concurrently. Feeling aggrieved, he has preferred this appeal. 2. The appellant is son of his acquitted co-accused Ramashray , Singh. They are original residents of village Chakhamin district Nalanda, but residing in Sardar Patel Nagar Colony, Patna for the last many years. Parmanand Singh, the deceased, was the Gotia, and resident of their village. Sunil Kumar Sinha P.W. and Anil Kumar Sinha P.W. are the sons of Parmanand Singh and Nilu Kumari P.W. his daughter. The deceased was also a resident of Sardar Patel Nagar Colony, Patna, in April, 1989, and even prior thereto Anand Prasad Singh P.W. is the nephew of Parma Nand Singh, and Raj Nandan Singh P.W., hailing from village Fatehpur, cousin of the son-in-law of Parma Nand Singh. 3. Parma Nand Singh had retired from the post of Accountant, Small Scale Industrial Development Corporation, Patna, in January, 1988. Ram Ashray Singh, the father of the appellant was Store-keeper of that Corporation when Parma Nand Singh was in its service. Ram Ashray Singh had been removed from service earlier on the charge committing criminal breach of trust with the goods of the Corporation. His grievance was that the deceased, although his Gotia, had not helped him, rather was instrumental in getting him implicated in the case resulting in his removal from the job. For that reason, the relations between the parties had ambittered since quite some time in the past. It is alleged that four years earlier to the occurrence, the appellant had fired a shot at Parma Nand Singh, and a case in that behalf was registered in police station, Digha, Patna. Then about three days earlier to the occurrence, a quarrel has allegedly taken place between the deceased and the appellant, and at that time the latter had threatened to kill the deceased soon. 4. The prosecution version, as per fardbeyan (Ext. Then about three days earlier to the occurrence, a quarrel has allegedly taken place between the deceased and the appellant, and at that time the latter had threatened to kill the deceased soon. 4. The prosecution version, as per fardbeyan (Ext. 5) of Anil Kumar Sinha) got the information at his house at about 7.25 A.M. that when his father (Parma Nand Singh() was returning on his scooter bearing registration No. BPZ 7994 after purchasing vegetables, he had been shot at. Accordingly Anil Kumar Sinha P.W. had come to the road in-front of Patliputra Telephone Exchange Office, Patna, and found his father lying in injured condition with bleeding from his chest and his scooter was also lying close by. At that time lots of people had gathered Parmanand Singh was carried for his immediate treatment through (Dwara) Sunil Kumar Singh son of Jagnarain Singh, resident of Mustafa pur and Raj Kumar Singh son of Ram Narain Singh in a jeep to Patna Medical College Hospital for treatment. In the way Parma Nand Singh had told that at 7.20 A.M. when be was returning with the vegetables, and had reached near the Patliputra Telephone Exchange Office Sanjay Kumar Singh alias Pappu (appellant) of Sardar Patel Nagar Colony, police station Digha, Patna, who happened to be an uncle of Parma Nand Singh, along with one unknown youth, wearing kurta-paijama had come from the west and shot at him in chest from a country made pistol. On receipt of that shot Parma Nand Singh had entered hutment of a khatal. Sanjay Kumar Singh alias Pappu (Appellant) had again shot at him from the back. Thereafter he and his unknown companion, who had earlier come on a Rajdoot Motorcycle from western direction had fled away towards the east. Parma Nand Singh had also told that at that time Pappus father Ram Ashray Singh (since acquitted) was standing at a little distance towards west and he had also fled away towards the same direction after the occurrence, which many persons had seen. Parma Nand Singh had died at 8.30 A.M. in Patna Medical College Hospital. He had also told the name of Pappu (appellant) to the officer of patrolling party near Kurji Hospital Patna. 5. Prosecution version further is that it was A.S.I. Kishuni Ram P.W. of Special Mobile Staff of police station Patliputra, who had recorded dying declaration (Ext. Parma Nand Singh had died at 8.30 A.M. in Patna Medical College Hospital. He had also told the name of Pappu (appellant) to the officer of patrolling party near Kurji Hospital Patna. 5. Prosecution version further is that it was A.S.I. Kishuni Ram P.W. of Special Mobile Staff of police station Patliputra, who had recorded dying declaration (Ext. 3) of Parma Nand Singh near Kurji Hospital Patna, on the date of occurrence (1-4-1989) at 7.35 A.M. He had allowed the jeep carrying Parma Nand Singh, to proceed further to Patna Medical College Hospital and himself had arrived at the place of occurrence. From there he had taken into possession an empty shell of a. 315 bore bullet vide seizure memo Ext. 4 attested by Raghuvansh Singh and Raj Kumar Singh son of Ram Narain Singh. The A.S.I. had then gone to aforesaid hospital and found that Parma Nand Singh had already succumbed to his fire arm injuries. He had recorded fardbeyan (Ext. 5) of Anil Kumar Sinha P.W. who was there, at 9.30 A.M. He had prepared inquest report (Ext. 6) and then sent the dead body to the mortuary for post-mortem examination. The remaining investigations were carried by S. I. Paras Nath Mishra P.W. Officer-in-charge of Police Station, Digha, Patna, in the jurisdiction of which Police Station the occurrence had taken place. After completion of the investigation the appellant and his father Ram Ashray Singh were charge-sheeted. The latter has earned his acquittal, but the appellant convicted and sentenced in the manner stated above. 6. Out of 11 witnesses examined by the prosecution Arun Prasad Singh (P.W. 3), Sunil Kumar Sinha (P.W. 4), and Raj Nandan Singh; (P.W. 6) are the alleged eye-witnesses of the occurrence. Nilu Kumari Sinha (P.W. 7) is the daughter of the deceased. She was only tendered for cross examination. Anil Kumar Sinha (P.W. 9) is the informant and before him the appellant had allegedly made his oral dying declaration. Nirpat Paswan (P.W. 1) of village Chakhamin and Lakhan Manjhi of village Biraj Minki had deposed about their having come into contact with the appellant and his father on 2-4-1989. She was only tendered for cross examination. Anil Kumar Sinha (P.W. 9) is the informant and before him the appellant had allegedly made his oral dying declaration. Nirpat Paswan (P.W. 1) of village Chakhamin and Lakhan Manjhi of village Biraj Minki had deposed about their having come into contact with the appellant and his father on 2-4-1989. Dharam Vir Singh (P-W. 5), hailing from village Nandabigha had stated about his seeing both of them (the appellant and his father Ram Ashray Singh) at the platform of railway station Arrah on 30-3-1989 in conversation with Sri Luxmi Narain Singh Railway Magistrate, when they were waiting for the train A.S.I. Kishuni Ram (P.W. 10) of Police Station Patliputra, Patna, had, as stated above, recorded the alleged dying declaration Ext. 3 of the deceased and fardbeyan (Ext. 5) of the informant, and carried out the initial investigations. S.I. Paran Nath Mishra (P.W. 11) the last witness to be examined by the Prosecution had completed the investigations before the charge-sheet was submitted in the case. Dr. Shambhu Sharan (P.W. 8), then posted in Patna Medical College Hospital had conducted post-mortem examination on the dead body of Parma Nand Singh, aged about 60 years, on 1-4-1989 at 1 P.M. and had found the following injuries on the same : (1) Wound of entry 1" X V situated 2" left from the mid line on the left back. Fractures of 4th and 5th ribs were found. Metalic object, like bullet, was found lodged in sub-scapulary portion. Tatooing was present in the area of 10" X 8". (2) Wound of entry of 1" X ½" situated 5" below the lower portion of right scapula 4" right from the mid line. Fracture of 9th rib of.the right side was found. Puncture of the lung and upper portion of the liver was seen and it had cpmmunicated through the wound of exit 1" x ½" on the right side of chest, situated 4" x V below and left to the right nipple. Chest cavity and abdominal cavity were full blood and blood clots. Time elapsed since death was about 24 hours. The above said fire arm injuries were the cause of death, and these were sufficient in the ordinary course of nature to cause death. Ext. 1 is the post-mortem report. 7. Chest cavity and abdominal cavity were full blood and blood clots. Time elapsed since death was about 24 hours. The above said fire arm injuries were the cause of death, and these were sufficient in the ordinary course of nature to cause death. Ext. 1 is the post-mortem report. 7. Sanjay Kumar Singh alias Pappu (appellant) had, like his acquitted co-accused, denied the prosecution allegations, in his examination. Both of them had stated that they were not even present at the spot at the relevant time, far from participating in the occurrence. They had maintained that they were behind the bars in a Railway Case from 31-3-1989 to 5-4-1989 in Central Jail Buxar ; that after they had come out of that jail in the evening of 5-4-1989, they had learnt about their false implication in the case on 6-4-1989 ; and that they had thereafter surrendered in the Court of the Chief Judicial Magistrate, Patna, on the following day (7-4-198S), resulting in their being remanded to judicial custody in Bankipur Central Jail, Patna. 8. In support of their above plea of alibi, the appellant had examined Bacha Prasad Singh, Arun Kumar Roy, Ramdeo Singh, Abhay Na-rain Lal, Tapeshwar Tiwary, S. D. Mitra and Ram Swaroop Lal as his witnesses in defence. 9. Bacha Prasad Singh (D.W. 1) is the Sub-Jailor of the Bankipur Centrai Jail, Patna. He had proved entry Nos. 2738-39 (Exts. A and A/1) of his jail register showing admission of the appellant and his father Ram Ashray Singh in the jail on 7-4-1989 after their surrender in the case. Aran Kumar Roy (D.W. 2) is a clerk of Central Jail, Buxar. He had brought with him the records of his jail. He had testified about admission of appellant and Ram Ashray Singh in his jail at Buxar on 31-3-1989 at 5.40 P.M. along with 24 co-convicts, who all were convicted by Railway Magistrate during the course of a special railway checking at railway station Chausa earlier on that date. Their custody warrants are Exts. D and D/1 pertaining to their respective case Nos. 714 and 715. This D.W. had further stated about the release of the appellant and his father on 5-4-1989 after they had deposited the imposed fine vide release orders (Exts. C and C/1) passed by the Railway Magistrate. Their custody warrants are Exts. D and D/1 pertaining to their respective case Nos. 714 and 715. This D.W. had further stated about the release of the appellant and his father on 5-4-1989 after they had deposited the imposed fine vide release orders (Exts. C and C/1) passed by the Railway Magistrate. Ramdeo Singh (D.W. 3) Assistant Jailor of Central Jail Buxar, bad stated about the admission of the appellant and his lather in his jail on 31-3-1989 and then of their release on 5-4-1989 on depositing the fine imposed upon them by the Railway Magistrate Abhay Narain Roy (D.W. 4) is the Warder or Buxar Central Jail. He had testified about the confinement of the appellant and his father Ram Ashray Singh inside Central Jail, Buxar, from the evening of 31-3-1989, and then his identifying both of them as those very persons at the time of his deposition at trial of this case. Tapeshwar Tiwary (D.W. 5) is the Bench Clerk of the Railway Magistrate, Arrah. He had sworn about apprehension of the appellant and his father Ram Ashray Singh during the course of raid conducted by the Railway Magistrate on 31-3-1989 at railway station, Chausa. He had further stated that on receipt of the memo (Ext. H) prepared by the T.T. E., Railway Case Nos. 714 and 715 against the appellant and his father were instituted and Ext. A and Ext. A/1 are their statements whereby they had admitted about their apprehension when they were travelling without ticket in the train, and whereby each of them was fined Rs. 574/-or to undergo rigorous imprisonment for three months. As the appellant and his father could not deposit the fine at the time of their conviction, they were sent to Central Jail, Buxar. This D.W. has further stated that the fine on behalf of the appellant and his father was ultimately deposited on 4-4-1989 vide Exts. E and E/1, and accordingly release orders Exts. C and C/l were sent to jail. He had also stated . about the police coming for verification of that plea of alibi during the course of investigation, and taking photo-copies of the relevant documents forming part of the records. E and E/1, and accordingly release orders Exts. C and C/l were sent to jail. He had also stated . about the police coming for verification of that plea of alibi during the course of investigation, and taking photo-copies of the relevant documents forming part of the records. He (D.W. 5) had also deposed that the statement of Ram Ashray Singh and his son had stated in their statements before the Railway Magistrate that they were going, when apprehended, by train to Vindayachal, and pleaded that in case he (Ram Ashray Sisgh) was convicted, he would lose his Government job. Sri S. D. Mitra (D. W. 6) is the Assistant Jailor of Central Jail, Buxar. He had also deposed about confinement of the appellant and his father Ram Ashray Singh in his jail from 31-3-1989 to 5-4-1989. The last witness examined in defence, namely, Ram Swaroop Lal (D.W. 7) is a formal witness. He had proved handing over the memo (Ext. E) prepared by. T.T.E. Nagendra Kumar Roy on 31-3-1983 on the basis of which the appellant and his father were caught when travelling in the train unauthorisedly and produced for trial before the Railway Magistrate. 10. After hearing learned counsel for the appellant, learned counsel for the informant, and learned Additional P.P. appearing for the State, we are of the considered view that as the prosecution has remained unsuccessful in proving its case, this appeal deserves to succeed. 11. It has been remained undisputed that Parma Nand Singh was shot dead on 1-4 1989 at about 7.15 A.M. when he was returning to his house after purchasing vegetables on scooter bearing registration No. BPZ 7994 on road infront of Telephone Exchange. Patliputra, Patna, Now, whereas the prosecution case is that the appellant had come Patna, Now, whereas the prosecution case is that the appellant had committed murder of Parma Nand Singh, a plea of alibi was raised from the defence side. It is also the defence suggestion that neither Parma Nand Singh had made any dying declaration, oral or documentary, nor any of the examined eye-witnesses by the prosecution was at the spot at the relevant time. The only material question for determination is to see as to if satisfactory evidence is available on record for connecting the appellant with the offence charged. 12. The only material question for determination is to see as to if satisfactory evidence is available on record for connecting the appellant with the offence charged. 12. The occurrence had taken place on 1-4-1989 at about 7 A.M. in Patna, and the case purported to have been registered in police station Digha, Patna, the same day at 11.30 A.M. but surprisingly the special report had reached the hands of the Magistrate in Patna itself as late as on 3-4-1989. Although it was shown in the F.I.R. that special report was despatced through special messenger immediately after the registration of the case, but neither the special messenger had been examined nor even his affidavit produced for explaining the delay in receipt of the special F.I.R. by the Magistrate. It is, therefore, highly doubtful as to if fardbeyan (Ext. 5) of the informant was actually recorded on the day of occurrence at 9.30 A.M. and formal F.I.R. drawn up on its basis in Police Station Digha, Patna at 11.30 A.M. on that day Had those documents been drawn up on that date as per -prosecution version the special F.I.R. would have reached the Magistrate on 1-4-1983, "a working day at about noon time. There being no explanation from prosecution side in that behalf, the delay appears to have been fully utilised in giving shape to the prosecution case by coining the version after due deliberations and consultations. 13. The motive, as suggested, has not been proved. None out of the examined P.Ws. had said a word about the alleged prevailing hostility between the appellant, family and the deceased in his statement at trial. Rather records show that the appellant and the deceased are not only original residents of village Chakhamin, but are near Gotia interse. No proof is available that about four years earlier to the occurrence, the appellant had attempted to kill Parma Nand Singh and case registered regarding that occurrence. Not even a copy of the F.I.R. of that case has been brought on record by the prosecution. Similarly no P.W. had stated at trial about the appellant threatening the deceased a few days before the latters death, as is the version in F.I.R. The F.I.R. is not a substantive piece of evidence, and contents thereof are to be proved by the prosecution by leading evidence. No evidence for proving motive, oral or documentary, has been brought on record. No evidence for proving motive, oral or documentary, has been brought on record. Rather, material is there on record to show that only a couple of days earlier to 1-4-1983 one Santosh Singh, a brother-in-law of the informant had fired shots at the house of the deceased on one Appi Singh, and a case in that behalf was registered with the police. Quite likely Parma Nand Singh was done to death because of that occurrence. 14. The defence plea of alibi is fool proof. The same appears to have been believed while acquitting Ram Ashray Singh, co-accused of the appellant, but rejected qua the latter for no justifiable reasons. As stated above, that plea of alibi was unfolded before the police on the first opportunity during investigations, and the police had even taken into possession the photo-copies of the official records showing the confinement of the appellant and the co-accused Ram Ashray Singh, his lather, in Central Jail, Buxar, from the evening of 31-3-1989 till that of 5-4-1989. As such, it cannot be said that plea was a belated one or an after thought. The evidence of D.Ws. 2 to 7, detailed fully in preceeding paragraphs, is wholly reliable, and negative the prosecution case about participation of the appellant in the occurrence. Those D.Ws. are official witnesses and were neither sharing any hostility towards the informant party nor favourably inclined towards the appellant. There is not even a suggestion that for any alterior reason they had become party in fabricating the plea of alibi for shielding the appellant and his co-accused Ram Ashray Singh in the case. Although these D.Ws. were cross-examined at length, but nothing material was brought in their cross-examination by Additional P. P. to show that what they had stated at trial with regard to confinement of the appellant also in Central Jail, Buxar from 31-3-1989 to 5-4-1989 was not based on truth. D.W. 4 had, in cross-examination by Additional P. P., testified after pointing towards the appellant in the Court as the same person who had remained in jail during the above said period. Plea of alibi of the appellant appears to have been rejected by the trial Court on the flimsy grounds that only in one of numerous official documents his name was recorded as Ajoy Kumar Singh, and further that there is a small variance in his description recorded in the jail records. Plea of alibi of the appellant appears to have been rejected by the trial Court on the flimsy grounds that only in one of numerous official documents his name was recorded as Ajoy Kumar Singh, and further that there is a small variance in his description recorded in the jail records. As regard mentioning of the appellant as Ajoy Kumar Singh in only one such document, suffice to say that it was even admitted at the Bar by learned counsel for the informant that the (appellant) is the only son of his father Ram Ashray Singh. In all other jail documents, confinement of Ram Ashray Singh and his son Sanjay Singh alias Pappu. the appellant, has been mentioned from 31-3-1989 to 5-4-1989 in Central Jail, Buxar, and that Ajoy Kumar Singh, who was shown to be then in confinement with his father Ram Ashray Singh, since acquitted, only in one document during that period is none else but the appellant himself. May be that appellants other name is Ajoy Kumar Singh, but alias (Pappu) remains the same. Then as regard variance in description, it was even noted by the trial Court that there is a scar mark in between the eye-brows of the appellant, as per his description shown in jailrecords. The only variance suggested by the defence was as to whether the appellant was having a cut mark on the index finger of his left hand or that finger was actually cut. This variance is too miscropic even to be looked into. The index finger of one of the hands of the appellant is cut, but writer in the jail records had mentioned about cut mark on that finger. That could not be a reason for doubting the presence of the appellant inside the jail from 31-3-1989 to 5-4-1989. On the basis of fully established plea of alibi, accepted on behalf of the acquitted co-accused. it is proved that even the appellant could not be, and was not, present in Patna on 1-4-1989 when Parma Nand Singh was shot dead. 15. By way of a crude attempt, the prosecution had examined P.Ws. On the basis of fully established plea of alibi, accepted on behalf of the acquitted co-accused. it is proved that even the appellant could not be, and was not, present in Patna on 1-4-1989 when Parma Nand Singh was shot dead. 15. By way of a crude attempt, the prosecution had examined P.Ws. 1 ana 2 hailing from village Chakhamin, and P.W. 5 belonging village Nanda Bigha to rebut the alibi plea by getting from their mouths that P.Ws, 1 and 2 had come into contact with the appellant and his acquited father in village Chakamin on 2-4-1989, and P.W. 5 had seen them at railway station Arrah on 30-3-1989- The evidence of P.W. 5 is no way conflicting with the alibi plea that the appellant too was inside Central Jail, Buxar from 31-3-1989 to 5-4-1989. Even otherwise the evidence of P.W. 5 deserves rejection outright. He had admitted that he was on constant visitng terms at the house of Parma Nand Singh and had his initial education in latters village Chakhamin. He admitted that he had no talk with the appellant ana his father at railway station Arrah. He had appeared before the police for making statement as late as on 22-5-1989. As per his own showing, he was at the house of one of his friends near police station Patliputra when the police had thought in terms of recording his statement. He had admitted that his own village is at a long distance from Arrah, and he had no work for which he had allegedly come to Arrah on 30-3-1989. Then as regard the evidence of P.Ws. 1 and 2, the same, is equally unsatisfactory. The version of P.W. 1 that he had again seen the appellant in his village after 10 to 15 days on 2-41989 is to be rejected with the contempt it deserves as admittedly the appellant had surrendered on 7-4-1989, and is in jail throughout thereafter. He had admitted that the police had recorded his statement after 10--15 days of the occurrence. He could not name any other person who had visited his village on any different date. The defence suggestion is that since P.W. 1 cultivates the land of the deceased, his false introduction as similarly P.W. 2 could not specify the name of even one person who had visited his village on 2-4-1980 or any other date. He could not name any other person who had visited his village on any different date. The defence suggestion is that since P.W. 1 cultivates the land of the deceased, his false introduction as similarly P.W. 2 could not specify the name of even one person who had visited his village on 2-4-1980 or any other date. He had admitted that neither he could specify the date nor the month, and had not mentioned them in his police statement. But he was confronted with his police statement in that behalf. Regarding P.W. 2. the defence suggestion is that he had falsely deposed as he also cultivates the land of Parma Nand Singh, and further that the appellants father was doing the pairvi of that arson case in which P.Ws. 1 and 2 are facing prosecution. The evidence of P.Ws. 1, 2 and 5 thus is found of no help to prosecution in rebutting the fully proved defence plea of alibi supported by wholly reliable official witnesses. By examining the witnesses of the type of P.Ws. 1 to 5, the prosecution had not gained anything, but defence everything. 16. Then the prosecution has relied upon P.Ws. 3, 4 and 6, the alleged eye-witnesses, for bringing home the guilt against the appellant. But the evidence of those P.Ws. is totally unacceptable. They are close relations of the deceased inasmuch as P.W. 4 is his son, P.W. 3 his nephew, and P.W. 6, the elder brother of his son-in-law. None out of these P.Ws. is a probable and natural witness. Even their names are not appearing either in the so called dying declaration (Ext. 3) or in Fardbeyan (Ext. 5) of P.W. 9 specially when the latter had come into contact with P.Ws. 3, 4 and 6 and had also conversed with them much prior to his making that Fardbeyan. Fatehpur village of P.W, 8 is situate at a considerable distance (about 8 to 10 Kos) from Patna, but he would like us to believe that he had arrived in the City for no cogent reason a day earlier. He would also like us to believe that he and P.W. 3 had arrived for sharing tea and purchasing Bidi when had seen the occurrence. The co-incidence was too big to be swallowed. He could not give the name of those shop-keepers or of those persons, who lives in the neighbourhood. He would also like us to believe that he and P.W. 3 had arrived for sharing tea and purchasing Bidi when had seen the occurrence. The co-incidence was too big to be swallowed. He could not give the name of those shop-keepers or of those persons, who lives in the neighbourhood. He also could not give the number and make of the. motorcycle on which the appellant had allegedly arrived. He would not know as to from which direction the first shot was fired and where hit. He would not remember if he had told the police about that shot being fired from the front. He had not cared to see if there was any trial of blood from the spot to the Khatal. He also could not state as to from which side the second shot was fired. He could not tell even approximately the number of persons present at the khatal, and further if any blood had fallen inside the same. He would not remember about stating before the police that second shot was fired from the back. He would also not remember as to if any blood had fallen on the scooter of the deceased. He admitted that 40-45 persons of the locality were then there, but neither he nor P.W. 3 had told about their seeing the occurrence to them. He had stated about arrival of P.W. 4 and others after a few minutes of the occurrence and thus has made the evidence of P.W. 4 in seeing the occurrence also doubtful. He (P.W. 6) could not say any thing as to if the jeep ; in which the deceased was carried, belonged to the police or was private, from which side it had come and whai was its number. He also could not say as to who had helped Parma Nand Singh in his being put in the jeep. He admitted that aithorgh he and P.W. 3 were closely connected with Parma Nand Singh, but they had not gone with him in the jeep to the hospital. They had thought in terms of. going to the hospital after 3 to 4 hours, long after Parma Nand Singh had died. P.W. 6 would not remember the time of recording his statement by the police on the following day. They had thought in terms of. going to the hospital after 3 to 4 hours, long after Parma Nand Singh had died. P.W. 6 would not remember the time of recording his statement by the police on the following day. He would also not remember as to if anybody had tried to apprehend unarmed acquitted accused Ram Ashray Singh at the spot. Then as regard evidence ot P.W. 4 the same also deserves rejection outright. Admittedly, he is the son of the deceased, and his house is at a considerable distance from the place of occurrence. He would like us to believe ihat he was returning after morning exercise in the ground of the S. Michael School at a distance of more than (sic) when had suddenly reached the spot and seen the occurrence. He admitted that roll-call used to be there all such youths who were undertaking those morning exercise. No corroborative evidence was, however, led by the prosecution in that behalf. He had admitted that he had passed 10th Class examination much earlier, and had not got entered his name for next classes. He would not. remember as to when he passed his 10th Class examination. He had maintained about not seeing the first shot hitting, but was confronted with the police statement wherein that fact was mentioned. He could not state as to whether the second shot had resulted in injury. He had stated that no cattle were in the Khatal and had not cared to know about its area, and also if any blood had fallen there. He would not also remember the time of his making police statement. He would also not remember as to if he had stated before the polce that the second shot had resulted injury on the back. He had contradicted others by deposing that he was alone when had reached near his injured father. He could not state as to on which parts of the body of Parma Nand Singh he had received injuries. He would not remember about stating before the police that Parma Nand Singh had received injuries on the chest and back. He had deposed about reaching of P.Ws. 7 and 9 subsequently But admitted in not telling them about his seeing the appellant firing the second shot. He would not remember about stating before the police that Parma Nand Singh had received injuries on the chest and back. He had deposed about reaching of P.Ws. 7 and 9 subsequently But admitted in not telling them about his seeing the appellant firing the second shot. He had also not remembered as to from where that jeep had arrived, and to whom it belonged in which Parma Nand Singh was put. He had denied the presence of Raj Kumar Singh and Sunil Singh of Mustafapur in that jeep, and further about there also going in the same to the hospital. However, as the names of Raj Kumar Singh and Sunil Singh of Mustafapur were mentioned in the F.I.R., but P.W. 4 had changed his statement by stating that there were two unknown persons in the jeep, but he had not known their names. He had also admitted that although Kurji Hospital is a well known hospital of the State, and jeep had remained infront of the same for about 10 minutes, but Parma Nand Singh was not even taken there for providing initial treatment. He had contradicted the version of the A.S.I. (P.W. 10) to the effect that the latter could not obtain thumb impression or signatures of Parma Nand Singh on his dying declaration (Ext. 3) as he had lost consciousness while making the same. P.W. 4 is emphatic in stating that his father had lost senses much after he had made that statement, and not when he was still making the same. He would not remember if police had secured thumb impression or signature of Parma Nand Singh or of anybody on any Ext. 3. Although he had allegedly accompanied P.W. 9 in that jeep to the hospital, but would not remember as to when latters fardbeyan was recorded. The evidence of only other eye-witnesses (P.W. 3) also carries no conviction. As stated above, he is a resident of Chakhamin, district Nalanda. That village is at a far of distance from Patna. P.W. 3 had admitted that neither he has any business, nor houses nor land, nor even service in Patna. He admitted that his mother had brought up the deceased. He had maintained about coming to Patna for purchasing a pumping set but admitted that he had subsequently not purchased the same. P.W. 3 had admitted that neither he has any business, nor houses nor land, nor even service in Patna. He admitted that his mother had brought up the deceased. He had maintained about coming to Patna for purchasing a pumping set but admitted that he had subsequently not purchased the same. His version was that the appellant had fired both the shots while remaining seated on his motorcycle, make of which he would not know. He could not state as to whether those shots had resulted in injuries. He could also not state as to if the shots were fired from front or from back. He was confronted with his police statement wherein shooting was described from front. He admitted that Fakiria, the Khatalwala, was present at the spot. He could not state as to on which side of the gate the deceased had fallen. He also could not state as to if Raghu-vansh, on whose Ahata Parma Nand Singh had entered, was there or with his family members. He also could not state as to on which side Parma Nand Singh had fallen. Similarly he could not state as to who brought the jeep and from where. Although P.W. 3 is the nephew of the deceased, but as per statement he had gone to the hospital after about 6 hours of the death of Parma Nand Singh. He admitted that the news about causing fatal injuries to Parma Nand Singh had reached his village Chakhamin much later on that date, and villagers in general had thereupon arrived at Patna. It looks probable that he, being the nephew of Parma Nand Singh, had arrived with his co-villagers in Patna, and then had made himself available to the police for his introduction as an eyewitness unmindful whether his evidence is believed or not. 17. Again the evidence of these so-called eye-witnesses (P.Ws. 3, 4 and 6) is contradictory to the medical evidence. As was the case in the F.I.R., these P.Ws. had also stated about receipt of first fire arm injury by the deceased at his chest within their sight. However, it was found from post-mortem examination that chest injury was, in fact an exit wound. Therefore, these P.Ws. had stooped low by improving upon their previous police version in stating at trial that they had not cared to see about infliction of the chest injury. However, it was found from post-mortem examination that chest injury was, in fact an exit wound. Therefore, these P.Ws. had stooped low by improving upon their previous police version in stating at trial that they had not cared to see about infliction of the chest injury. That was a crude attempt to bring their evidence in conformity with the post-mortem report when their previous version in the police statement before which they were confronted was that they had seen the deceased receiving first shot on the chest. These P.Ws. are thus prone to change their version to suit the exigencies, and on this score alone, their evidence requires rejection. Further, the version of P,W. 3 was that each of the shot was fired at Parma Nand Singh from a distance of 12 feet. This too stands negatived by the post-mortem report. The presence of tattooing at the entrance of fire arm injury show that the deceased was hit from a close range. 18. From the above analysis of the evidence of the called eye witnesses (P,Ws. 3, 4) and 6) examined by the prosecution, it is clear that none out of them was even present at or near the place of occurrence at the time of the crime, and further although their names were not even mentioned as such in the F.I.R. lodged by deceaseds own son, but they had made themselves available for being introduced subsequently because of their close relationship with the deceased. Here it deserves mention that the informant (P.W. 9) had admitted that when he had come into contact wits P.W. 6 and others, none out of them had told him about his seeing the firing on Parma Nand Singh. The informant had also admitted about a vigilance case having been instituted against his late father earlier. 19. According to prosecutions own showing, the crime was committed when Khatal owner Fakiria, Raghuvansh Singh, in whose Ahata Parma Nand Singh had fallen, shopkeepers and persons in general, were present on that busy road. But none out of them was examined by the prosecution. They could testify about the identity of the culprits, and because of their non-examination, an adverse inference can be drawn against the prosecution. Those persons could also be examined for showing about presence of the so called eye-witnesses (P. Ws. But none out of them was examined by the prosecution. They could testify about the identity of the culprits, and because of their non-examination, an adverse inference can be drawn against the prosecution. Those persons could also be examined for showing about presence of the so called eye-witnesses (P. Ws. 3, 4 and 6) and their non-examination also go a long way in not placing any reliance on the evidence of these P.Ws. 20. On the basis of material brought on record, one can form the justifiable impression that as no independent person was prepared to support the; prosecution version and the evidence of examined eye-witnesses is not to be believed, the investigating agency had thought in terms of introducing false oral and documentary dying declarations. According to P.W. 9, he had learnt from Parma Nand Singh about causing fire arm injuries to him (deceased) by the appellant at the spot. Now although he (P.W. 9) himself was the maker of the fardbeyan (Ext. 5) but that oral dying declaration is conspicuously missing from the same. Even his close relations like P.Ws. 3, 4 and 6, who were then allegedly present at the spot have not corroborated him in that behalf. Then as regard making another oral dying declaration by the deceased in the jeep before P.W. 9 the fact that he (P.W. 9) was even present in that jeep is again missing from the F.I.R. (Ext. 5). It is nowhere mentioned in Ext. 5 as to before whom Parma Nand had made that dying declaration and in whose presence. The making of these so called oral dying declarations by the deceased cannot, therefore, be believed. Then as regard dying declaration (Ext. 3) allegedly recorded by the A.S.I. (P.W. 10) infront of Kurji Hospital, Patna. the same also requires placing no reliance. The fact that any such dying declaration was earlier reduced into writing, was not mentioned in the F.I.R. (Ext. 5). Further, although P.W. 10 was the same official, who had allegedly written Ext. 3 and subsequently Ext. 5. but it also does not appear in his endorsement appearing below (Ext. 5) that he had earlier recorded dying declaration (Ext. 3). The mentioning of the fact in Ext. 5 that Parma Nand Singh had disclosed the name of Pappu to the police near Kurji Hospital appears to have been subsequently introduced in Ext. 5. 3 and subsequently Ext. 5. but it also does not appear in his endorsement appearing below (Ext. 5) that he had earlier recorded dying declaration (Ext. 3). The mentioning of the fact in Ext. 5 that Parma Nand Singh had disclosed the name of Pappu to the police near Kurji Hospital appears to have been subsequently introduced in Ext. 5. The writing in this behalf in a squeezed manner is out of context and was introduced in the space available between two paragraphs. This writing also does not specifically show that Parma Nand Singh had made that statement before the A.S.I, and he had reduced the same into writing. P.W. 11, who had taken over investigations from P.W. 10, had not initially stated about his taking into possession-Ext. 3, alongwith fardbeyan (Ext. 5) inquest report (Ext. 6), but had subsequently testified in that behalf Ext. 3 was not sent to the Court alongwith Ext. 5 or at any stage subsequently till submission of charge-sheet. As stated above, neither Ext. 3 was signed nor thumb marked by its maker, the deceased, nor it bears the attestation of anybody. The explanation offered by P.W. 11 that he could not get thumb impression or signature of the deceased on the same because of his becoming unconscious while making it, cannot be believed in view of categoric statement of P.W. 4 that the deceased had lost senses after making Ext. 3 and at no time earlier. Further as per prosecution own showing, Sunil Kumar Singh of Mustafapur and Raj Kumar Singh were in the jeep when Parma Nand Singh was put in the same, and then his dying declaration recorded in the way. Others were also near the A.S.I., when he had drawn up Ext. 3. Still none out of those persons had volunteered to attest the same nor the police had got it attested from any such persons. Ext. 3 was allegedly recorded infront of Kurji Hospital, and some doctor could have been summoned from that hospital for his certifying the condition of Parma Nand Singh in making dying declaration, and then of its attestation in his presence after the same was reduced into writing by the police. Even the A.S.I. (P.W. 10) has not made any endorsement on Ext. 3 that Parma Nand Singh was in a fit condition to make the statement and that he himself was satisfied in that behalf. Even the A.S.I. (P.W. 10) has not made any endorsement on Ext. 3 that Parma Nand Singh was in a fit condition to make the statement and that he himself was satisfied in that behalf. Non-examination of Sunil Kumar Singh of Mustafapur, Raj Kumar Singh and other independent persons is also taken note of for drawing an adverse inference against the prosecution about the presence of P.Ws. 4 and 9 near Parma Nand Singh when he had allegedly made Ext. 3. As mentioned above it was not specifically stated in Ext. 5 that P.Ws. 4, 9 and 10 were then with Parma Nan 1 Singh when he had made that dying declaration. Therefore, these P.Ws. are not competent to state anything about the same. Again. no question was put to the appellant in his examinstion under Section 313 of the Code of Criminal Procedure requiring his explanation with respect to making statement (Ext. 3) by the deceased against him. Further-, it is not understood as to how the A.S.I. (P.W. 10). not at all connected with the police station Digha, in the jurisdiction of which the occurrence had taken place, had taken upon himself to investigate the case. Admittedly, he had not thought, in terms of requesitioning the services of a Judicial Magistrate or that of the Executive Magistrate before he had himself decided to record Ext. 3. He had not got it signed from Parma Nand Singh and attested by any out of the persons present there. The information contained in Ext. 3 was the first in time to have been received by the police, and is in fact, the F.I.R. in the case. P.W. 10 was then attached to another police station Patliputra and after had allegedly drawn up Ext. 3 had also inspected the place of occurrence. He had then fully learnt that the case pertained to police station Digha. Still he had not sent Ext. 3 to police station Digha for registration of the case. Rather, he himself had subsequently arrived in Medical College Hospital. Patna, for recording the fardbeyan of the informant. 3 had also inspected the place of occurrence. He had then fully learnt that the case pertained to police station Digha. Still he had not sent Ext. 3 to police station Digha for registration of the case. Rather, he himself had subsequently arrived in Medical College Hospital. Patna, for recording the fardbeyan of the informant. The fact that this was a faulty investigation is also borne out for the reason that although Raj Kumar Singh had gone in the jeep with Parma Nand Singh to Patna Medical College Hospital, and was not present when P.W. 10 had inspected the soot and taken into possession the empty shall of a fired bullet from there vide memo (Ext. 4), but this seizure memo is shown to bo attested by the same Raj Kumar Singh. The position is totally unreconcilable. P.W. 10 had admitted that he himself had prepared no case diary in the case. He eouid not state as to whose jeep it was in which Parma Nand Singh was taken to the hospital. He had contradicted the version of P.Ws. 4 and 9 about their sister (P.W. 7) accompanying them in the jeep by stating that he had not seen any female in thet vehicle. He admitted that the officer-in-charge of police station Digha (P.W. 11) was present when he had started recording Ext. 5. Since P.W. 11 was directly concerned with the case, the occurrence having taken place within his jurisdiction, drawing up of the F.I.R. was expected to be by him. P.W. 10 could not state as to where he had earlier been, while patrolling, before intercepting the jeep taking Parma Nand Singh to the Medical College. In the given circumstances of the case, it is highly doubtful that this A.S.I. (P.W. 10) had ever come into contact with Parma Nand Singh before he had died. On the basis of material brought on record, no reliance can be placed on the evidence of P.W. 10 that he recorded any dying declaration, muchless Ext. 3 of the deceased. 21. In view of what is stated above, it is clear that whereas no reliance can he placed on the evidence of the so-called eye-witnesses examined by the prosecution, as also on the dying declarations, oral and. 3 of the deceased. 21. In view of what is stated above, it is clear that whereas no reliance can he placed on the evidence of the so-called eye-witnesses examined by the prosecution, as also on the dying declarations, oral and. documentary, relied upon from its side, the defence has successfully proved the plea of alibi to show that the appellant was inside Central Jail, Buxar continuously from 31-3-1989 to 5-4-1989 and, therefore, had not committed the crime in question. 22. For reasons stated above, this appeal succeeds and is hereby accepted. The conviction and sentences of the appellant are set aside, and he is acquitted of the charges. The appellant is in jail. He is ordered to be set at liberty forthwith, if not required to be detained in connection with any other case.