Judgment M.L.Visa, J. 1. This appeal is directed against the judgment and order dated 19.6.1997 passed by 1st Additional Sessions Judge, Khagaria, in Sessions Trial No. 439/89 convicting and sentencing the appellants to undergo life imprisonment and to pay a fine of Rs. 2000/-, in default to undergo further R.I. for six months under section 302/34 of the Indian Penal Code (in short, I.P.C.) and R.I. for three years under section 27 of the Arms Act. The sentences have been ordered to run concurrently. 2. The case of the prosecution in short is that on 1.7.88 at about 7 A.M. the Informant Chandradeo Yadav (since dead) was serving tea to a barat party at the darwaja of one Sone Lal Yadav. His brother Bindeshwari Yadav was also there. Thereafter Bindeshwari Yadav proceeded for purchasing tea leaves from the shop of one Bishundeo Sah. The informant also followed him for purchasing other articles. When Bindeshwari Yadav reached near a middle school all of a sudden 14-15 persons variously armed with guns, pistols and lathis surrounded him. Amongst those persons the informant identified appellant Indradeo Sharma armed with a double barrel gun, appellant Surya Narain Sharma armed with a gun and co-accused persons, namely, Chhotan Sharma armed with a single barrel gun, Doman Sharma armed with rifle, Ramji Sharma armed with a pistol, Bishundeo Sharma armed with 303 rifle, and Pahlu Sharma and 4-5 unknown persons armed with lathis. Appellant Surya Narain Sharma and Indradeo Sharma fired one shot each from their guns causing injuries on the temple and jaw of Bindeshwari Sharma who fell down with bleeding injuries. The informant raised hulla. The appellants and their companions fled towards Ghusmari village. When the informant went near his brother he found him dead. In the meantime, witnesses, namely, Wazir Yadav (PW 4), Ramdeo Sah (PW 1), Saheb Yadav (not examined) and Sato Yadav, (PW 3) came there running and saw the occurrence. The informant went to Bishunpur Police Station and got the FIR (Ext. 1) registered at 8.45 A.M. on the same day by SI Arun Kumar Tiwary (PW 6) who was posted at that time as Officer-in-charge of that police station. After recording the FIR, Arun Kumar Tiwary (PW 6) himself took up the investigation of the case, visited the place of occurrence where he found the dead body of Bindeshwari Yadav, prepared inquest report (Ext. After recording the FIR, Arun Kumar Tiwary (PW 6) himself took up the investigation of the case, visited the place of occurrence where he found the dead body of Bindeshwari Yadav, prepared inquest report (Ext. 2), collected blood stained soil and prepared seizure list (Ext.3) and after completing investigation submitted charge sheet against both the appellants showing them absconders as well as against co-accused Doman Sharma, Pahlu Sharma, Mohan Sharma and Hareram Sharma under sections 147, 148, 149 and 302 of the I.P.C. and 27 of the Arms Act. Chhotan Sharma, Ramjee Sharma, Bishundeo Sharma and Sagar Sharma who were named in the FIR were not sent up for trial. After commitment of the case to the court of sessions both the appellants appeared before the court of sessions. Charges under different heads against the appellants and other co-accused persons were framed which were subsequently amended. Finally charges under sections 302/34 and 148 I.P.C. and 27 of the Arms Act against both the appellants, charges under sections 302/149 and 148 I.P.C. against co-accused Doman Sharma and Mohan Sharma, and charges under sections 302/149 and 147 I.P.C. against co-accused Hare Ram Sharma and Pahlu Sharma were framed. After trial the court below acquitted co-accused Doman Sharma, Mohan Sharma, Hare Ram Sharma and Pahlu Sharma but convicted and sentenced both the appellants to undergo life imprisonment and to pay fine of Rs. 2000/- in default to undergo R.I. for six months under section 302/34 IPC and to undergo R.I. for three years under section 27 of the Arms Act. 3. About the motive of the occurrence the information in the FIR has said that there was group rivalry in the village and his brother was accused in a case instituted for the murder of Baldeo Sharma and Sukhari Sharma father of appellant Surya Narain Sharma and owing to this enmity the appellants and their companions committed the murder of his brother. 4. The case of the defence before the court below was that deceased was a veteran criminal and was convicted in a case of dacoity. He had many enemies and he might have been killed by some unknown persons but the appellants have been falsely implicated in this case on account of enmity. 5. Altogether 7 witnesses have been examined on behalf of the prosecution. Dr. He had many enemies and he might have been killed by some unknown persons but the appellants have been falsely implicated in this case on account of enmity. 5. Altogether 7 witnesses have been examined on behalf of the prosecution. Dr. Om Prakash Sinha (PW 7) is the doctor who had conducted autopsy on the dead body of deceased Bindeshwari Yadav. Arun Kumar Tiwary (PW 6) is the I.O. of the case. Ramdeo Sah (PW 1) on hearing the sound of firing reached the place of occurrence and had seen the appellants and their companions fleeing away from the place of occurrence. Mahesh Yadav (PW 2), Sato Yadav (PW 3), Ojir Yadav (PW 4), brother of the deceased and Budhani Devi (PW 5), mother of the deceased are said to be the eye witnesses to the occurrence. 6. Dr. Om Prakash Sinha (PW 7) in his evidence has said that on 1.7.88 he was posted as Civil Assistant Surgeon at Sadar Hospital Khagaria and on that day at about 4.45 PM he held post mortem on the dead body of the deceased Bindeshwari Yadav and found the following injuries : (i) One circular wound of 1/3" diameter over left eye ball margin. Margin of the wound was lacerated and inverted and it was wound of entry and surrounding tissues and skin were blackened. (ii) One circular wound of 1/2" diameter over back of right side of scalp. Margin of the wound was lacerated and inverted and it was wound of exit. He has stated that by mistake injury no. (ii) has been mentioned in the post mortem examination report as wound of entrance but, in fact, it was wound of exit. According to him, both the injuries were ante mortem and were caused by fire arm and death was caused due to shock and haemorrhage on account of aforesaid injuries and the time elapsed since death was 6-12 hours from the time of post mortem examination. He has proved the post mortem examination report which is marked Ext.3. The evidence of this witness proves that death of deceased Bindeshwari Yadav was homicidal and it was result of injuries casued by fire arm and the time of death corresponds to the time as given by prosecution. He has proved the post mortem examination report which is marked Ext.3. The evidence of this witness proves that death of deceased Bindeshwari Yadav was homicidal and it was result of injuries casued by fire arm and the time of death corresponds to the time as given by prosecution. Now it has to be seen what evidence has been led on behalf of the prosecution against the appellants for making themselves responsible for the aforesaid injuries to the deceased. 7 Ramdeo Sah (PW 1) has stated that on the day of occurrence at about 7 A.M. he was spading in a field of maize crop when he heard sound of firing and he went running at a place six rassi from the field where he found the dead body of deceased Bindeshwari Yadav and also saw the appellant Surya Narain Sharma armed with a gun and appellant indradeo Sharma armed with a gun, Doman Sharma and Chhotan Sharma armed with 303 and Ramjee armed with pistol and some others armed with lathi running away towards west south direction. He found that deceased had received injury on his head. In cross examination he has admitted that the field in which he was working belonged to deceased and at that time he was labourer of deceased. 8. Mahesh Sah (PW 2) has said that at the time of occurrence he was near the place of occurrence when he saw the deceased going from east to west and when the deceased reached near a Mahua tree both the appellants along with Chhotan Sharma, Mohan Sharma, Doman Sharma, Ramjee Sharma, Bishundeo Sharma, Sagar Sharma and Pahlu Sharma came out from a field situate towards south. Both the appellants were armed with guns and their companions were armed with rifle, pistol and lathi. Both the appellants and their companions surrounded the deceased and thereafter both the appellants fired on the deceased causing injuries on his eye and temple and thereafter they fled away. According to him, occurrence was witnessed by Ramdeo Sah (PW 1), Sato Yadav (PW 3) and Budhani Devi (PW 5). When he went near the deceased he found the deceased dead. 9. According to him, occurrence was witnessed by Ramdeo Sah (PW 1), Sato Yadav (PW 3) and Budhani Devi (PW 5). When he went near the deceased he found the deceased dead. 9. Sato Yadav (PW 3) has said that at the time of occurrence he along with his brother was going to Sasural of his brother and when he reached a canal situate north of his house he saw 10-15 persons near the Mahua tree situate towards west and at that time deceased was going towards west. When the deceased reached near the Mahua tree, both the appellants fired from their guns which hit the deceased and the deceased fell down and died. Mohan Sharma, Pahlu Sharma, Chhotan Sharma, Sagar Sharma, Ramjee Sharma and Bishundeo Sharma armed with guns, lathis and rifles were with the appellants. He went near Bindeshwari Yadav and found him dead. Appellants and their companions fled away. 10. Ozir Yadav (PW 4) has said that at the time of occurrence he along with Ramdeo Sah (PW 1) was spading in a field of maize crop when he heard the sound of firing and Ramdeo Sah told htm that sound of firing was coming from the side of school and he then went to a place situate south east where he found the deceased lying on the ground. Both the appellants fired from their guns which hit on the head of the deceased and at that time Chhotan Sharma, Mohan Sharma, Doman Sharma, Bishundeo Sharma, Sagar Sharma, Ramjee Sharma were armed with guns, pistols and rifles. Witnesses, namely, Mahesh Yadav (PW 2), Sato Yadav (PW 3) and others came there and thereafter appellants and their companions fled away and he found his brother dead. 11. Budhani Devi (PW 5), the mother of informant, has said that at the time of occurrence she was taking her grandson to a doctor and her son deceased Bindeshwari Yadav was going to purchase tea leaves and in the way he was about 10-15 cubits ahead of her and when he reached near a Mahua tree standing on the side of the road both the appellants along with Doman Sharma, Pahlu Sharma, Mohan Sharma, Hare Ram Sharma surrounded him and started firing on him. Both the appellants and Doman Sharma opened fire on her son. Both the appellants and Doman Sharma opened fire on her son. She has further stated that her son received fire shots and fell down and instantaneously died there and thereafter appellants and their companions fled away towards west. When she went near her son she found him dead. In the meantime, her another son Chandeshwari Yadav also reached there and he then went to Khagaria Police Station for lodging an FIR. She has further stated that her son Chandeswari Yadav . who was informant of this case, was also subsequently murdered by the appellants. 12. As stated above, Ramdeo Sah (PW 1) has admitted that he was the labourer of deceased and on the day of occurrence he was working in the field of deceased as labourer. In cross examination he has admitted that he was not examined by the I.O. Mahesh Yadav (PW 2), who has stated that appellants fired two shots hitting on the eye and temple of the deceased, in the court below could not identify co-accused Hare Ram Sharma and he in his cross examination has admitted that he committed mistake in deposing that amongst co-accused persons co-accused Bishundeo Sharma were also present but, in fact, Bishundeo Sharma was not present in court. Arun Kumar Tiwary (PW 6) in his evidence has stated that this witness during the course of investigation stated before him that after hearing the sound of firing he ran towards the place of occurrence and saw appellants Surya Narayan Sharma and co-accused Doman Sharma armed with gun and pistol, respectively running towards west. This statement of I.O. shows that this witness had not stated earlier that he was eye witness in the occurrence and about appellant Indradeo Sharma he did not state anything. In cross examination this witness has stated that when he reached the place of occurrence deceased Bindeshwari Yadav had already died. This statement is against his earlier statements in examination-in-chief that he had seen the appellant firing on the deceased. Sato Yadav (PW 3) in his cross examination has admitted that a criminal case had been registered for the murder of father and grandfather of appellant Surya Narayan Sharma and in that case he is one of the accused persons. This statement is against his earlier statements in examination-in-chief that he had seen the appellant firing on the deceased. Sato Yadav (PW 3) in his cross examination has admitted that a criminal case had been registered for the murder of father and grandfather of appellant Surya Narayan Sharma and in that case he is one of the accused persons. The I.O. in his evidence has stated that this witness had not stated before him during the course of investigation that both the appellants fired on deceased causing injuries and the deceased after receiving injuries fell down. In para-4 of his evidence he has stated that when he went to the place of occurrence he found Ramdeo Sah (PW 1) and mother of deceased. It means that he had reached the place of. occurrence after arrival of Ramdeo Sah (PW 1). As stated earlier, Ramdeo Sah (PW 1) himself has said that he reached the place of occurrence after hearing the sound of firing. In this view of the matter, this witness (PW 3) could not have seen the occurrence because he had reached the place of occurrence after the arrival of Ramdeo Sah (PW 1) there. Ozir Yadav (PW 4) as stated earlier has said that when he and Ramdeo Sah (PW 1) both were spading a field of maize crop, he heard a sound of firing and Ramdeo Sah (PW 1) told him that sound of firing had come from the side of the school and when he went to the south east of school he found deceased Bindeshwari Yadav fallen on ground and appellants fired hitting on the head of the deceased. Ramdeo Sah (PW 1) in his evidence has not stated that this witness was working with him in the field. Ramdeo Sah (PW 1) has clearly stated that when after hearing the sound of firing he ran towards the place of occurrence in the way he met one Kameshwari Yadav only and told him about the murder of deceased. In para-6 of his cross examination he has stated that he remained at the place of occurrence for one hour and in between this period he had talks with chaukidar only. His evidence does not support the evidence of Ozir Yadav (PW 4) about the laters presence at the place of occurrence. In para-6 of his cross examination he has stated that he remained at the place of occurrence for one hour and in between this period he had talks with chaukidar only. His evidence does not support the evidence of Ozir Yadav (PW 4) about the laters presence at the place of occurrence. Moreover, Ramdeo Sah (PW 1) has not supported the evidence of PW 4 that he (PW 1) had told PW 4 that sound of firing had come from the side of school. Besides this, the evidence of Ozir Yadav (PW 4) that when he reached the place of occurrence he saw the deceased fallen on the ground and thereafter appellants fired from their guns is against the case of the prosecution that the deceased had fallen down after receiving injuries. It is not the case of the prosecution that after deceased had fallen down on the ground, appellants fired on him. The I.O. (PW 6) has said that this witness (PW 4) had not stated before him that appellants opened fire from their guns. A suggestion to PW 5 was given on behalf of the defence that after hearing the sound of firing she found appellants Surya Narayan Sharma and co-accused Doman running towards west and she then asked from them, whether they had seen her son but they did not reply anything and when she proceeded further for her village, she found her son fallen near a Mahua tree. She has denied this suggestion but the I.O. in his evidence has stated that during the course of investigation this witness (PW 5), who is the mother of the deceased, had stated that at about 7 A.M. she heard sound of firing and she found appellant Surya Narayan Sharma and co- accused Doman running towards west and then she inquired from them about her son but they did not reply and then she proceeded further and found her son lying near a Mahua tree. He has further stated that she had not stated that at the time of occurrence her son was going to purchase tea leaves and she was about 15 cubits behind him and she had not stated that when deceased reached near a Mahua tree, the deceased was surrounded by the appellants and their companions and deceased received gun shot injuries and fell down and died there and the appellants and their companions fled away towards west. From the evidence adduced on behalf of the prosecution we find that out of five witnesses examined on behalf of the prosecution on the point of occurrence Ramdeo Sah (PW 1) was labourer of the deceased, Sato Yadav (PW 3) is accused in a case registered for the murder of father and grand father of appellant Surya Narayan Sharma, Ozir. Yadav (PW 4) is the own brother of deceased and Budhani Devi (PW 5) is mother of deceased. About Mahesh Yadav (PW 2), the defence has given a suggestion to him that his father alongwith deceased was accused in a criminal case. This witness has neither accepted nor denied this suggestion and has simply said that he has no information about this fact but then in para 14 of his evidence he has clearly stated that when he reached the place of occurrence deceased had already died. 13. From the evidence of prosecution witnesses we find that although PW 2, PW 3, PW 4 and PW 5 who have claimed themselves to be the eye witnesses to the occurrence but by making further statements they have contradicted their evidence of their being eye witnesses to the occurrence. They have also negatived the presence of each other at the place of occurrence and evidence of I.O. shows that none of them before him, during the course of investigation, had stated that he or she had seen the appellants firing on the deceased. The court below also in its judgment has taken note of this fact and has observed that prosecution witnesses have made improvement of their earlier statements under section 161 Cr. P.C. and one prosecution witness contradicts the presence of other at the place of occurrence. The court below also in its judgment has taken note of this fact and has observed that prosecution witnesses have made improvement of their earlier statements under section 161 Cr. P.C. and one prosecution witness contradicts the presence of other at the place of occurrence. It has further observed that a critical evaluation of evidence on record reveals that the witnesses have named those persons also as accused who are not on trial and this also symbolises all the attempts of improvement of the prosecution case by implicating those also who were not on trial. Considering the contradictions in the evidence of prosecution witnesses the court below acquitted co-accused Mohan Pahlu, Doman and Hare Ram Sharma but in spite of these facts it has observed that "a critical evaluation of the evidence on record in a deal to separate chaff from the grain and to disengage truth from falsehood unveils that two of the accused namely Indradeo Sharma and Surya Narayan Sharma made shots at the deceased caused injury which proved fatal". It has further observed that because the evidence shows that only a single shot was fired at the deceased so it appears probable that one of the shots made at the deceased might have missed the target and thereafter it has convicted and sentenced the appellants. We have already discussed the contradictions in the evidence of prosecution witnesses and in their earlier statements. These contradictions are not minor and not of such nature that it can easily be ignored but these are vital contradictions which make the evidence of those prosecution witnesses who turned before the court below to depose claiming themselves as eye witnesses to the occurrence quite doubtful, because contradictions are direct that in their earlier statements they did not state that it were the appellants who fired at the deceased. In this situation, we fail to understand how the court below separated the chaff from grains and has disengaged the truth from falsehood. The court below has taken note of the fact that deceased had received injuries by only one shot whereas, PW 5 has stated that two shots were fired at the deceased. According to the court below it appears probable that one of the shots made at the deceased might have missed the target. The court below has taken note of the fact that deceased had received injuries by only one shot whereas, PW 5 has stated that two shots were fired at the deceased. According to the court below it appears probable that one of the shots made at the deceased might have missed the target. It failed to consider that PW 5 has stated that not only both the appellants but co-accused Doman Sharma also fired at the deceased. So in these circumstances, it becomes very difficult to establish whose shot actually proved fatal. As stated earlier, Doman Sharma has been acquitted. The evidence of prosecution witnesses notwithstanding the fact that the witnesses are either close relations of the debased and inimical to appellants is full of contradictions, not only if compared with their earlier statements but also by their subsequent statements in cross examination. We find quite unsafe to rely on such type of evidence. 14. The defence is that deceased himself was a criminal involved in a number of cases. The l.O. (PW 6) in para 11 of the evidence has said that during the course of investigation he found that the deceased was a veteran criminal involved in a number of dacoity cases and he further found that the deceased had enmity with other villagers. The case of the defence is that the deceased might have met his death at the hands of his unknown enemies. Without drawing any inference from the evidence f I.O. that the deceased was a criminal, we find that prosecution has not been able to prove the charge against the appellants that they had fired from their guns at the deceased resulting into his death. Under such circumstances the conviction of appellants cannot be upheld. 15. In the result, this appeal is allowed. The judgment and order of the court below is hereby set aside. Both the appellants who are in jail custody are ordered to be released forthwith if not wanted in any other case. 16. I agree.