Judgment O.N.Asthana, J. 1. Both these Criminal Appeals have been filed against the judgment and order of 2nd Additional Sessions Judge, Arrah dated 16th October, 1985 passed in Sessions Trial No. 232 of 1984, where the Additional Sessions Judge held both the accused-appellants Bimal Sah and Ashok Singh guilty for the offence punishable under Sections 302 and 364, I.P.C. read with Section 34, I.P.C. and awarded the sentence of life imprisonment to both the appellants. 2. The prosecution case is that on 1st January, 1984 in the evening hours accused Bimal Sah, Ashok Singh and Sahabuddin Mian arrived at the house of Gopal Kahar and they took along with them Nirmal Kahar son of Gopal Kahar for picnic in the evening at Mathia (small temple) at the out-skirt of the village ; while they reached near the rehat of Jagdeo Mahto, Nirmal Kahar was shot at by the accused-appellants; Nirmal Kahar gave the cry shouting "HAIHO BABUJI ASHOK AUR BIMAL MAR DELAN" hearing this cries of injuried Nirmal Kahar the nearby villagers and the family members including the parents of Nirmal Kahar rushed to the place of occurrence where Nirmal Kahar was lying in the pool of blood. The injured Nirmal Kahar gave the name of the accused Bimal and Ashok fired from their guns and they fled away ; family men took injured Nirmal Kahar to the Hospital for treatment where he was given medical aid and Nirmal Kahar was referred by the doctor to be taken to Arrah Sadar Hospital for treatment and on the way to Arrah Sadar Hospital at about 7 a.m. in the morning Nirmal Kahar succumbed to the injuries. 3. Relating the motive it has been alleged that Gopal Kahar father of the injured lodged a criminal complaint against Bimal Sah who assaulted him, and that complaint was compromised six months back, but any how accused Bimal Sah bore grudge to Gopal Kahar, and that is why Bimal Sah along with his companions Ashok Singh and Shahabuidin took Nirmal Kahar outside his parental house in the dark hours of the evening and shot at Nirmal Kahar causing fatal injuries. 4. Gopal Kahar gave his statement relating the occurrence at Jagdishpur where he came back along with the deadbody of his son Nirmal Kahar in the morning, this fardbeyan of Gopal Kahar recorded by the Police Officer of Jagdishpur Police Station is Exhibit-2. 4. Gopal Kahar gave his statement relating the occurrence at Jagdishpur where he came back along with the deadbody of his son Nirmal Kahar in the morning, this fardbeyan of Gopal Kahar recorded by the Police Officer of Jagdishpur Police Station is Exhibit-2. Another Police Station Tiyar has been created by the State Government for the area where this occurrence took place and thus the Station Officer, Jadishpur Police Station send the fardbeyan to the Polic Officer of Tiyar Police Station. The formal F.I.R. (Exhibit-3) was drawn up in the records of the Police Station. Ram Krishna Misra, Incharge Police Officer of Tiyar Police Station (PW 18) started investigation in the case. He came to the place of occurrence and collected the blood-stained mud inspecting the place of occurrence near the well of Jagdeo Mahto. The seizure memo relating to the taking of blood stained mud is Exhibit-1. Ram Krishna Mishra, recorded the statement of the witnesses. The Investigation Officer Ram Krishna Mishra did not find any article fallen at the place of occurrence and he only found the empty cartridge near the dead-body. The Police Officer of Jagdishpur Police Station prepared the inquest report relating to the dead-body of Nirmal Kahar Exhibit-4. The deadbody was sent for post-mortem. Dr. K. P. Rai, PW 19 arranged the post-mortem of the deadbody. The post-mortem report is Exhibit 5. Dr. K. P. Rai found one round punctured wound 1 1/2" in diameter on chest left side 3" below and medial to the nipple and this wound was communicated to the abdominal cavity and even the upper portion of the left kidney was damaged. This antemortem gun shot wound was sufficient in the ordinary course of nature to cause death and such statement was also made by Dr. K. P. Rai (PW 19) in his statement on oath. 5. After completing the investigation, charge-sheet was given against the accused -appellants Bimal Sah and Ashok Singh and against Shahabuddin and Lal Muni Mahto. The trial Judge did not find any evidence against Lal Muni Mahto and thus acquitted him. Further the trial Judge also did not find any evidence against the accused Sahabuddin Mian on the charge and thus he acquitted Sahabuddin Mian as well. 6. The trial Judge did not find any evidence against Lal Muni Mahto and thus acquitted him. Further the trial Judge also did not find any evidence against the accused Sahabuddin Mian on the charge and thus he acquitted Sahabuddin Mian as well. 6. Considering the prosecution evidence the trial Judge arrived at the findings that the accused Ashok Singh, Sah and Sahabuddin Mian came to the house of Gopal Kahar in the evening of Ist January, 1984 and the deceased Nirmal accompanied them for picnic, and as regards the incident of killing (murder) the trial Court found that on the cries raised by injured Nirmal Kahar the prosecution witnesses reached to the place of occurrence, and Nirmal Kahar gave out that the accused Bimal Sah and Ashok Singh had assaulted him ; and the trial Judge accepted this statement of the injured Nirmal Kahar to be the dying declaration, and thus hold that the accused-appellants Bimal Sah and Ashok Singh had murdered Nirmal Kahar. 7. The prosecution has examined nineteen witnesses in all. Prosecution witnesses Ram Balak Mahto PW 1 and Hari Mahto PW 2 did not narrate the occurrence and they have been declared hostile by the prosecution. The prosecution witnesses Jagdeo Mahto PW 3, Harihar Prasad PW 6, Nathuni Singh PW 7, Rangila Yadav PW 8, Chhathu Yadav PW 9, Uma Shankr Mahto PW 10, Sushila Devi PW 13 Ghughul Yadav PW 16 and Ganesh Kahar PW 17 were tendered by the prosecution for the cross-examination by the Advocate of the accused persons. All these witnesses did not make any statement in examination-in-chief on oath. 8. The witnesses of fact are Birbal Prasad PW 4 (the nephew of Gopal Kahar who separated only four months back before making his deposition on oath in Court from his uncle Gopal Kahar, Shobh Nath Kahar PW 5 (uncle of Gopal Kahar), Smt. Tetri Devi PW 11 (wife of Gopal Kahar) Sunaina Devi PW 12 (daughter of Gopal Kahar), and Bhola Sah PW 15. Thus Bhola Sah alone has not been the family member of the deceased Nirmal Kahar. Bhola Sah PW 15 stated in Court that he was inside when he heard the sound of bullet fire, and he arrived at the well of Jagdeo Mahto where he found that Nirmal was lying in injured condition and number of persons were surrounding and Nirmal was taken to Jagdishpur Hospital. Bhola Sah PW 15 stated in Court that he was inside when he heard the sound of bullet fire, and he arrived at the well of Jagdeo Mahto where he found that Nirmal was lying in injured condition and number of persons were surrounding and Nirmal was taken to Jagdishpur Hospital. This witness neither saw any of these accused-appellants at the place of occurrence nor he heard any utterance of the injured. 9. Birbal Prasad, PW 4 stated in Court that he rushed to the place of occurrence hearing the sound of fire and he saw Bimal and Ashok there at the place where the injured Nirmal Kahar was lying, accused Bimal Sah was standing there and was weeping and the accused Ashok ran away. - This witness Birbal Prasad told further that injured Nirmal told that accused Bimal and Ashok fired at him. This witness told in cross-examination that a couple of persons arrived that earlier before the arrival of his uncle Gopal Kahar and before his arrival at the place of occurrence. 10. This witness stated in cross-examination that his house is situated at a distance of two hundred to three hundred yards from the place of occurrence. Further this witness stated in cross-examination that the accused Bimal Sah stayed for an hour or about after his arrival at the. place of occurrence and accused Bimal Sah was weeping all along ; and that none of the assembled villageman nor the parents of the injured Nirmal Kahar made any efforts or attempt to get hold the accused Bimal. 11. Shobh Nath Kahar, PW 5 told the Court that he was taking his meal when he heard firing sound and he heard the cries of Nirmal that he was shot by Bimal and Ashok and when he reached the place of occurrence he found that Nirmal was lying injured and the accused Bimal was holding Nirmal and was weeping badly. This witness stated that there was dark hours of the evening and there was no light round about the well and it was all dark and he could recognise one Jadgeo Mahto to be there. In cross-examiation this witness told specifically that he heard the cries of Nirmal while he was inside the house. This witness stated that there was dark hours of the evening and there was no light round about the well and it was all dark and he could recognise one Jadgeo Mahto to be there. In cross-examiation this witness told specifically that he heard the cries of Nirmal while he was inside the house. It is very much doubtful if the cries of injured Nirmal could have travelled a distance of two hundred to three .hundred yards or more as to reach the house of this witness Shobh Nath Kahar PW 5. Thusthe statement of Shobh Nath Kahar PW 5 cannot be taken to be apiece of evidence if injured Nirmal made a dying declaration. 12. Smt. Tetri Devi PW 11, mother of Nirmal Kahar stated in Court that Ashok Singh came alone at about 4 p.m. at her house and Nirmal was there and afterwards accused Bimal arrived there and later on accused Shahabuddin who was co-employee with Nirmal Kahar in a factory and who is married to the daughter of this village arrived at her house and inquired about Nirmal and later in the dark hours of the evening at about 7 p.m. Ashok, Bimal and Shahabuddin took Nirmal Kahar with them for picnic at Mathia as it was new years day. This witness stated further that she heard the sound of the firing and the cries of Nirmal Kahar and she rushed to the place of occurrence where her injured son Nirmal Kahar was lying, and her son Nirmal told her that Bimal and Ashok had shot at him. This witness stated in cross-examination that she arrived at the place of occurrence and five to six persons of the nearby house were already there around and that her husband and her daughter arrived later on. Those who arrived there earlier this witness were named Ram Balak Mahto PW 1 and Nathuni Singh PW 7 who arrived at the place of occurrence before the arrival of this witness. The witness stated specifically in his cross-examination as soon she arrived there and torch was lighted by the villagemen she saw Nirmal with blood oozing, from his injuries, she fainted. This part of the statement of this witness creates doubt if her injured son made any dying declaration naming these accused-appellants that they shot at. 13. The witness stated specifically in his cross-examination as soon she arrived there and torch was lighted by the villagemen she saw Nirmal with blood oozing, from his injuries, she fainted. This part of the statement of this witness creates doubt if her injured son made any dying declaration naming these accused-appellants that they shot at. 13. Sunaina Devi PW 12 married sister of the deceased who was staying those days at her parents house stated in Court that hearing the sound of a fire she also went behind her mother and when she inquired from her brother, he told her that Ashok and Bimal fired at. She stated in cross-examination that she gave utensils, water bucket, spices, flour etc. to her brother and her brother carried these articles for having picnic by the side of Mathia. Further she also stated in cross-examination that next day in the morning the Investigation Officer recorded her statement at Jagdishpur Hospital. 14. The prosecution case is primarily in the nature of the alleged dying declaration of the injured who told his familymen namely, Birbal Prasad PW 4, Tetri Devi PW 11, Sunaina Devi PW 12 and Gopal Kahar PW 14 that Bimal and Ashok fired at him and the second piece of evideace is the circumstantial evidence as the deceased Nirmal left his house along with Bimal, Ashok and Shahabuddin. 15. Learned Advocate for the appellants urged that (i) the alleged dying declaration is not believable ; (ii) the circumstances do not warrant that the deceased went from his house in the company of Bimal, Ashok and Shahabuddin ; (iii) the prosecution has not examined the material witnesses of facts and the non-examination discredits the whole prosecution case ; (iv) the prosecution evidence shows that the informant reported at the Police Station earlier, and the earlier first information report relating this alleged occurrence has been suppressed and this itself cause much doubt in the prosecution case, and (v) that there was hardly any motive for these accused-appellants to commit the murder of Nirmal Kahar. 16. The oral dying declaration is a weak piece of evidence. Smt. Tetri Devi mother of the deceased PW 11 has stated on oath that she was the first to reach the place of occurrence and her son made the statement to her. 16. The oral dying declaration is a weak piece of evidence. Smt. Tetri Devi mother of the deceased PW 11 has stated on oath that she was the first to reach the place of occurrence and her son made the statement to her. In cross-examination Smt. Tetri Devi told the Court as soon she saw her son with bleeding injuries she became senseless. Thus it is doubtful if her son told anything about the occurrence to this witness Tetri Devi PW 11. In cross-examination Smt. Tetri Devi PW 11 has stated specifically when Nirmal gave the alleged statement relating the assault she was alone there and none else was there. Obviously Gopal Kahar, Birbal Prasad and Sunaina Devi reached later in time at the place of occurrence and it is difficult to believe that the injured Nirmal Kahar could have made the statement again about the alleged occurrence while he had punctured would on the left side chest and that too from a gun shot. 17. Learned Advocate for the State raised the contention that in the first information report there is recital that the injured Nirmal told that the accused Bimal (alone) fired a shot on him. But all the prosecution witnesses have stated on oath in the trial Court that the injured told them that Bimal and Ashok fired shots on him. This alleged statement of the injured narrated by the prosecution witnesses on oath is incorrect in the light of the statements that one fire shot was made and the doctor also found only one injury of the fire-arm on the body of the deceased. Learned Advocate for the State pointed out that Gopal Kahar PW 14 has not been confronted with over recitals in the first information report and Gopal Kahar might have offered an explanation why name of only one accused was given by him in the first information report in the statement of the injured made to the prosecution witnesses. The recitals in the first information report are a circumstance to show that the alleged dying declaration disclosed by the prosecution witnesses on oath is incorrect one and it is not safe to rely on the alleged dying declaration. Further the prosecution did not examine on oath the three witnesses of the occurrence namely, Nathuni Singh PW 7, Hari Mahto PW 2 and Ram Balak Mahto PW 1. Further the prosecution did not examine on oath the three witnesses of the occurrence namely, Nathuni Singh PW 7, Hari Mahto PW 2 and Ram Balak Mahto PW 1. Learned Advocate for the appellants pointed out rightly that giving up of the eye-witnesses by the prosecution results in the absolute failure on the part of the prosecution for the establishment of the charge. Mere tendering by the prosecution is nothing. 18. The deposition of Gopal Kahar PW 14 shows that he came to the Police Station same night after the occurrence and the Police after recording his" statement in the Police Station obtained his thumb-impression on it. Further Gopal Kahar stated that next day he came to the Police Station along with the dead-body of his son to the Hospital and again the Police Officer recorded his statement and obtained his left thumb-impression. Thus it is evident from the statement of this witness that the earlier first information report was prepared at the Police Station in the night, and that first information report has not been brought on record. 19. In view of the above facts and circumstances that the name of another appellant Ashok has been added in the alleged dying declaration ; that the witnesses of fact have not been examined by the prosecution who reached earliest at the place of occurrence and that the earliest first information report has not been brought on record, it is not safe to rely on alleged dying declaration of the injured deceased Nirmal Kahar said to have been made to his family members. 20. Learned Advocate for the appellants pointed out that the Investigation Officer Ram Krishna Mishra PW 18 has made the statement on oath that he did not find any article lying scattered or fallen around the body of the deceased Gopal Kahar at the place of occurrence. This non-finding creates doubt in the prosecution version that Nirmal Kahar had gone in the company of Ashok, Shahabuddin and Bimal to enjoy picnic outside the house. Further it is also doubtful how these accused Bimal and Ashok could be procuring arms within the short travel of two hundred yards there where Nirmal Kahar was found fell dead. The accused-appellant Bimal lives at a distance of fifteen steps from the house of Nirmal Kahar. Further it is also doubtful how these accused Bimal and Ashok could be procuring arms within the short travel of two hundred yards there where Nirmal Kahar was found fell dead. The accused-appellant Bimal lives at a distance of fifteen steps from the house of Nirmal Kahar. It is very likely hearing the gun fire sound this accused Bimal who was close friend of Nirmal Kahar and was on visiting terms and they were meeting once or twice daily, would have reached the site where Nirmal Kahar fell dead, and thus the accused Nirmal was found weeping by the side of the unconscious dead-body of Nirmal Kahar. Bimal Kahar remained there by the side of the dead-body for a pretty long time. It was all natural conduct of the accused-appellant Bimal and it may be taken into consideration to infer that Bimal might not be the assailant. 21. According to the prosecution case Nathuni Singh PW 7, Hari Mahto PW 2 and Ram Balak Matho PW 1 were the persons who reached the place of occurrence first the they saw the assault by the fire-arms with their own eyes. But the prosecution did not prefer to examine any of these witnesses in the Court and simply tendered all of them. Tendering by the prosecution in the Court did not amount to any statement making the prosecution case on oath. The non-examination of these material witnesses who saw the occurence with their own eyes absolutely negatived the prosecution case. 22. The deposition of Gopal Kahar PW 14 and Sunaina Devi PW 12 go to establish that a written report was taken down at the Police Station earlier and the same has not been produced in the Court from the side of the prosecution and the non-production also creates a doubt in the prosecution case. 23. Both father and mother of the deceased, namely, Gopal Kahar PW 14 and Tetri Devi PW 11 have stated on oath in their statement that the alleged case filed by Gopal Kahar relating to assault on him by Bimal was compromised six months back before this occurrence of fatal assault on Nirmal Kahar and that Bimal and Ashok were friends of their son Nirmal Kahar and all the three were on visiting and speaking terms and were sitting in each others house for long and were moving about together happily and freely. Thus there was no motive for these accused-appellants to make any fatal assault on their friend Nirmal Kahar. 24. Thus we find that the prosecution has failed to establish the charge of murder and kidnapping of Nirmal Kahar against either of the accused-appellants of the two appeals. 25. Ashok Singh @ Ashok Kumar Singh and Bimal Sah the accused-appellants of the two Criminal Appeals are found not guilty of any of the charges. 26. The two appeals are hereby allowed and the judgment and order of the 2nd Additional Sessions Judge, Arrah dated 16th October, 1985 stands set aside. Both the appellants are on bail, their bail bonds stand discharged. Dharmpal Sinha, J. 27 I agree.