JUDGMENT S.K. Singh, J. Both the Government Appeal and the Criminal Revision arise out of the same judgment and were made analogous and heard together and with the consent of the parties, are being disposed of with the common judgment. 2. The present appeal has a chequered history. Against the judgment and order of acquittal passed by the trial court, Government Appeal No. 23 of 1985 as well as Criminal Revision No. 379 of 1985 had been filed and a Division Bench of this Court by order dated 9th April, 1987 disposed of the appeal and the revision and the impugned judgment and order passed by the 5th Additional Sessions Judge in Sessions Trial No. 140 of 1983 was set aside and the case was remitted to the trial court with a direction to examine the Investigating officer and after giving opportunity to the defence to cross examine him and lead further evidence as it ma think necessary, should decide the case afresh in accordance with law. The operative portion of the said judgment reads as follow:– “In the result Government Appeal No. 23 of 1985 is allowed, the judgment and order of the 4th Additional Sessions Judge, Patna, in Sessions Trial No. 140 of 1983 is set aside, the case is remitted for further trial and disposal in accordance with law as indicated above. The criminal revision application no. 379 of 1985 is dismissed as in fructuous.” Paragraph–13 of the said judgment would go to show that certain directions were given to the trial court which read as follow:– “For the reasons aforesaid I set aside the judgment and order or acquittal of the respondents by the learned Sessions Judge and remit the case for hearing after taking the evidence of the Investigating Officer and giving opportunity to the defence to cross-examine him and lead any evidence that it may think necessary by way of rebuttal of the evidence of the Investigating Officer and decide the case afresh in accordance with law.” Against the said judgment of this Court, Criminal Appeal No. 628 of 1997 was preferred before the apex Court of India by the accused persons which was disposed of by an order dated 2.12.1987. The said orders reads as follow: “We, therefore, allow this appeal, set aside the judgment of their High Court and direct the trial court to record and remit the evidence of the Investigating Officer to the High Court. The High Court will then dispose of the appeal as per law. The accused will remain on bail granted by the Sessions Court till the appeal is decided by the High Court.” 3. Pursuant to the direction of the Supreme Court, a report at Flag–‘X’ has been sent by the trial court. The said report shows that the Investigating Officer of the case, Lakshmi Narain Singh died 29.10.1992 after retirement and one of the acquitted accused Jagarnath Rai is also dead. In view of the fact aforesaid, as the Investigating Officer is dead, the trial court was not is a position to comply with the order of the Apex Court. 4. The present appeal i.e. Government Appeal No. 23 of 1985 is again to be disposed of by this Court without evidence of the Investigating Officer in the circumstances of the present appeal has been filed against the order of the trial court by which two persons namely Jagarnath Rai and Subhash Rai have been acquitted. Since Jagarnath Rai is dead, as would transpire from the report of the trial court, this appeal stands avated as it relates to Jagarnath Rai in view of the provision of section 394 (1) of the Code of Criminal Procedure. As the appeal was maintainable only against surviving accused i.e. Subhash Rai, notices were issued to him by order of his Court dated 29.11.1994 and Respondent No. 2 Subhash Rai is represented through counsel. 5. The present appeal has been filed against the judgment and order dated 27th March, 1985 passed by Shri A.G. Dutta, Additional Sessions Judge–IV, Patna, in Sessions Trial No. 140 of 1983 by which Respondents Subhash Rai as well as Jagarnath Rai, since dead have been given benefit of doubt and have been acquitted as the prosecution has failed to establish the motive on the part of the accused, and as the occurrence does not appear to be probable in ordinary course of nature and as the prosecution case with reference to the Medical evidence was also not believable. 6. The prosecution case in short is that on 28th June, 1982 at about 8.15. 6. The prosecution case in short is that on 28th June, 1982 at about 8.15. A.M. one Shyam Narain Rai (P.W.3) along with his son Munna Rai (P.W.6) went to his filed. When he saw Jagarnath Rai and his son Subhash Rai (both Respondents) trying to sink pipes in their filed close to the ridge dividing the land of the prosecution party and the accused persons. Shyam Narain Rai is said to have raised objection but the accused did not pay any heed to it. This led to altercation. Shyam Narain Rai sent his son Munna Rai to the village to inform some people to intervene in the matter. In the meantime, Mahesh Rai, another son of Shyam Narain Rai reached there and on the order of Jagarnath Rai, his son Subhash Rai fired the country made pistol as a result of which he sustained injury and fell down on the ground. Mahesh Rai was carried to Patna Medical College and Hospital where he succumbed to the injuries at about 3.00 P.M. According to the prosecution case, O.D. slip was issued from the P.M.C.H. and Kanta Prasad Singh (P.W.8), S.I. of pirbahore Police Station went to the Hospital and recorded Fardbeyan (Exhibit 1/1) of Shyam Narain Rai in the hospital at about 4.45 P.M. 7. Learned App. appearing on behalf of the State has stated that as specific allegation of firing was on Subhabh Rai, on the orders of Jagarnath Rai and as Mahesh Rai has succumbed to the injuries given by Respondent No.2 Subhash Rai which finds corroboration in the post mortem report, as such, learned trial court has erred in giving benefit of doubt to the Respondents as according to him the prosecution has been able to prove the guilt beyond reasonable doubt. 8. Learned counsel appearing on behalf of Respondent Subhash Rai, on the other hand, has stated that the trial court has rightly given benefit of doubt to the respondents as the prosecution has miserable failed in establishing the prosecution case and there are discrepancies in the prosecution story. Rather according to him, the prosecution witnesses have supported the version of the occurrence as narrated by the defence itself. 9. In this regard, he has drawn the attention of the court towards the deposition of PW6 who is the son of the informant (PW3). Rather according to him, the prosecution witnesses have supported the version of the occurrence as narrated by the defence itself. 9. In this regard, he has drawn the attention of the court towards the deposition of PW6 who is the son of the informant (PW3). PW6 in his deposition before the court has accepted that the pipe was sunk there from before which has led to the alternation. The case of the informant along with his son Munna Rai (PW6) went to his filed he saw accused Jagarnath Rai as well as Subhash Rai trying to sink the pipe. The fact as to whether the pipe was sunk from before or it was going to be sunk by the Respondents Subhash Rai and Jagarnath Rai since dead, becomes a relevant question? Even PW6 in his deposition has accepted that pipe had been sunk from before, PW3 in his Fardbeyan had omitted the story regarding sinking of pipe though in his deposition in court, he had stated that the accused persons were trying to sink pipe which led to altercation PW1 who is another prosecution witness, in his deposition in the court has stated that he came to know about the occurrence three to four days after the occurrence, as such, he cannot be an eye witness. PW2 has been declared as hostile. To my mind prosecution has failed to establish the motive of the occurrence. As according to prosecution case, as it would transpire from the evidence of the informant accused were trying to sink the pipe in their filed close to the ridge dividing the land of the accused and the informant. The prosecution party objected to this which led to alleged occurrence whereas according to defence, pipe was already fixed there from before and it was the prosecution party which was aggrieved by this Act. The Fardbeyan in this regard is silent. It simply mentions that there was alternation relating to the ridge. Why the informant has preferred to omit the motive of the occurrence in the Fardbeyan can only be explained by the informant himself and the defence is bound to get benefit of the said omission. P.Ws including PW6 son of the informant have also supported the case of the defence that pipe was sunk from before. Why the informant has preferred to omit the motive of the occurrence in the Fardbeyan can only be explained by the informant himself and the defence is bound to get benefit of the said omission. P.Ws including PW6 son of the informant have also supported the case of the defence that pipe was sunk from before. As such, to my mind, learned trial court has rightly come to the conclusion that the prosecution has not been able to establish the motive for the occurrence. 10. As far the medical evidence is concerned, learned trial court has also rightly come to the conclusion that the said evidence is not reliable to the extent which can result in conviction, as according to Fardbeyan, the firing was made from a very close range almost touching the body. The doctor who had held post mortem examination, found three pellet marks on the left side of the forehead and scalp. According to opinion of the doctor, injuries were caused by fire arm injury. But, the doctor did not fined any blackening or charring marks Obviously, the injuries were not caused by firing from a close range. 11. In addition to the discrepancies, as stated above, learned trial court has also relied upon the deposition of the defence witness namely Fakir Chand Rai. In his evidence before the court, he has stated that at about four of five in the morning he hears sound of firing and soon thereafter, he saw Shyam Narain Rai and Munna Rai and other running towards cast from which direction the sound gun firing was heard. He has further stated that he saw Mahesh in an injured condition and being carried by them and on enquiry from them about the cause of injuryt they kept mum. He has further stated that on the next day of the occurrence itself he has given his statement before the policy. Because of non-examination of the I.O. it is very difficult to say which of the witnesses were examined by him in course of the investigation. If his statement has come immediately after the occurrence, his testimony has to be given due weightage. 12. Because of non-examination of the I.O. it is very difficult to say which of the witnesses were examined by him in course of the investigation. If his statement has come immediately after the occurrence, his testimony has to be given due weightage. 12. In the facts of the present case, to my mind, learned trial court due to the discrepancy and loopholes in the prosecution story and in view of the fact that the manner of occurrence itself becomes doubtful, has rightly come to the conclusion that the prosecution has not been able to prove the guilt beyond reasonable doubt and as the guilt could court has rightly after giving benefit of doubt, trial court has rightly after giving benefits of doubt acquitted the respondents. 13. In the result, the judgment of the trial court does not require any interference by this Court and the Government Appeal fails and the same is dismissed. 14. For the reasons stated above, Criminal Revision also fails and the same is dismissed. I Agree. Appeal and Revision dismissed.