Judgment M.L.Visa, J. 1. Ramanuj Rao, now the sole appellant in this appeal before us, is aggrieved by the judgment and order dated 3-2-1986 passed by 1st Additional Sessions Judge, Bettiah, in Sessions Trial No. 58 of 1976/48 of 1985 convicting and sentencing the appellant to undergo life imprisonment under Secs. 302/34 of the Indian Penal Code (in short, IPC). 2. The case of the prosecution as disclosed in the fardbeyan, in short, is that on 28-7-1975 at about 7 a.m. Shrawan Yadav, brother of informant Shankar Yadav (P. W. 7), told the informant that he would go to Gudgudi Puriharwa for purchasing washing soap. The informant, told that as he himself was going to Majhauwa, he will bring the soap for him from there and asked his brother Shrawan Yadav to bring grass in the meantime. Thereafter, the informant left for Majhauwa and his brother Shrawan Yadav went in Sareh for cutting grass. At about 10 a.m. the informant returned from Majhauwa when he heard hulla from the eastern side of his village and he then along with Janak Yadav (P. W. 3) went to the place from there he heard hulla and found that: persons from the sides of Krishna Shahi and Jagannath Rao, uncle of appellant had assembled on a land having Bajra crop over which both the parties had dispute. He also heard the sound of firing and when he went near the disputed land he found the appellant armed with a rifle and co-accused Chandradeo Rao (since dead) armed with a Labda (small stick). Co-accused Chandradeo Rao asked the appellant that some one was in sugarcane field who appeared to be a spy and asked the appellant to kill him on which the appellant fired from his rifle as a result of which three persons in the sugarcane field fell down and other three persons fled away. When the informant along with Janak Yadav went in the sugarcane field he found his brother Shrawan Yadav lying in the field with ail injury on his head and brain materials had come out of the brain. The informant with the held of villagers brought his injured brother Shrawan Yadav to Lauriya Hospital where Shrawari Yadav succumbed to injuries. The fardbeyan of informant Ext. 4) was recorded by ASI, B. Hoda (not examined) on the same day at about 5.30 p.m. On the basis of fardbeyan, FIR (Ext. The informant with the held of villagers brought his injured brother Shrawan Yadav to Lauriya Hospital where Shrawari Yadav succumbed to injuries. The fardbeyan of informant Ext. 4) was recorded by ASI, B. Hoda (not examined) on the same day at about 5.30 p.m. On the basis of fardbeyan, FIR (Ext. 5) was drawn against the appellant as well as against co-accused Chandradeo Rao under Sec. 302/34, I.P.C. and Sec. 27 of the Arms Act. After investigation, the police submitted charge-sheet against the appellant as well as against co-accused Chandradeo Rao under Sec. 302/34, I.P.C. 3. After cognizance, the case was committed to the Court of Session where charge under Sec. 302/34, I.P.C. was framed against the appellant and co-accused Chandradeo Rao. The appellant denied the charge framed against him. 4. The case of defence as it appears from the evidence of defence witnesses examined on behalf of appellant as well as from the trend of cross-examination of prosecution witnesses before the Court below was that appellant Ramanuj Rao at the time of occurrence was at Bettiah where he had gone for treatment of appendicitis and at the time of occurrence the informant, deceased and others after forming an unlawful assembly variously armed with deadly weapons such as gun, rifle and garasa etc. had gone to the land of Jagannath Rao, the uncle of appellant, and they after seeing Baidyanath Rao, another uncle of appellant and others coming to that land indiscriminately fired which caused death of their own man who may be the deceased and for which Baidyanath Rao had filed Bagha P.S. Case No. 55 dated 30-7-1975 (Ext. C) and the appellant has been falsely implicated in this case. 5. After trial the Court below found the appellant and co-accused Chandradeo Rao guilty and accordingly convicted and sentenced both of them to undergo life imprisonment under Sec. 302/34, I.P.C. 6. During the pendency of this appeal, co-accused Chandradeo Rao died. Hence, the appeal proceeded against the appellant only. 7. In order to prove its case, the prosecution has examined eight witnesses. Shankar Yadav (P.W. 7) is the informant. Suraj Turha (P.W. 1), Laxman Ram (P.W. 2) and Janak Yadav (P.W. 3) are said to be the eyewitnesses to the occurrence. During the pendency of this appeal, co-accused Chandradeo Rao died. Hence, the appeal proceeded against the appellant only. 7. In order to prove its case, the prosecution has examined eight witnesses. Shankar Yadav (P.W. 7) is the informant. Suraj Turha (P.W. 1), Laxman Ram (P.W. 2) and Janak Yadav (P.W. 3) are said to be the eyewitnesses to the occurrence. Sarajul Mian (P.W. 5) is a hearsay witness who in his evidence has stated that he had heard from one Amruddin that appellant had killed the deceased by his rifle. This Amruddin has not been examined by the prosecution. Nurul Hoda (P.W. 6) is a formal witness who has proved his signature (Ext. 2) on inquest report prepared by police for the dead body of deceased. Gopal Prasad (P.W. 8) is also a formal witnesses who has proved case diary (Ext. 3), fardbeyan (Ext. 4), formal FIR (Ext. 5) and inquest report (Ext. 6) and has stated that the author of these documents Bindhyachal Prasad, who was a police officer, has retired from service and his present address is not known. Dr. M.P. Jaiswal (Ext. 4) is the doctor who had conducted autopsy on the dead body of deceased. I.O. has not been examined by the prosecution. 8. Dr. M.P. Jaiswal (P.W. 4) in his evidence has stated that on 29-7-1975 he was posted as Civil Assistant Surgeon in M. J.K. Hospital, Betiah and on the same day at 11.30 a.m. he had conducted autopsy on the dead body of deceased Shrawan Ahir and found the following ante-mortem injuries: (i) Left parietal bone portion is blown off with its soft tissues and brain substance of spindle in shape 3" x 1-1/2" communicating to cervical cavity and part of brain substance radiating fracture from the above injury to frontal parietal occipital on left side and parietal on right side. On examination of skull bone there was 1/2" circumference clear and inverted margin in interior part of the wound and the rest of the injured bone was irregular in margin. According to him, time of death was within 36 hours and injury was caused by fire-arm and the injury was sufficient to cause death in ordinary course of nature and death was due to shock and haemorrhage. He has proved the post-mortem examination report (Ext. 1). According to him, time of death was within 36 hours and injury was caused by fire-arm and the injury was sufficient to cause death in ordinary course of nature and death was due to shock and haemorrhage. He has proved the post-mortem examination report (Ext. 1). The evidence of this witness establishes the fact that deceased died of injury caused by firm arm and the time of death given by this witness corresponds to the time of death as suggested by prosecution. Now, it has to be seen what evidence has been led by the prosecution against the appellant for making him responsible for causing the injuries found on the dead body of deceased. 9 Shankar Yadav (P.W. 7), the informant, in his evidence has stated that on the day of occurrence in the morning at about 7 a.m. his deceased brother told him that he would go Churiharwa Gudgudi for bringing washing soap on which he told his brother that he himself was going to Majhauwa from where he will bring soap for him and in the meantime he should bring some grass and thereafter his brother left for cutting grass and he went to Majhauwa. He has further stated that he returned from Majhauwa at about 10 a.m. but by that time his deceased brother had not returned after cutting grass and the moment he reached the darwaja of his house, he heard hulla from the eastern side and he then proceeded towards that place. In the way, he met Janak Yadav (P.W. 3) who also accompanied him and they both found that hulla was being made from a land over which there is dispute between Krishna Shahrand Dinanath Rao and he found the appellant armed with rifle standing there with co-accused Chandradeo Rao who told the appellant that some one of their rival party was in the field and asked him to kill him and thereupon appellant fired from his rifle and thereafter the appellant and co-accused Chandradeo Rao both started fleeing away. He then went further and found that his brother Shrawan after receiving fire-arm injury had fallen at the corner of sugarcane field of one Gagandeo Babu where he was cutting grass and he then brought his brother to his village. His brother had received lire-arm injury near the ear. His brother was then brought to Lauriya Hospital where he died. Fardbeyan of informant was. His brother had received lire-arm injury near the ear. His brother was then brought to Lauriya Hospital where he died. Fardbeyan of informant was. recorded at Lauriya Hospital. In paragraph 8 of his cross-examination he has admitted that he heard hulla when he was at his house and at that time he heard sound of four firings and he alone then proceeded from his house towards the place from where he had heard hulla. In paragraph-10 of his cross-examination, he has further stated that while he was in the way he again heard the sound of one firing. About this firing he has made it clear that when he was about 1 Bigha west from the land of Gagandeo Babu he heard this firing. In para-13 of his cross-examination, he has slated that he first of all saw his brother fallen on the ground with bleeding injury. In his examination-in-chief, he has simply stated that at the exhortion of co-accused Chandradeo Rao, appellant fired from his rifle and thereafter appellant and co-accused Chandradeo Rao. both, started fleeing away and thereafter he saw that his brother had received firearm injury. He does not say that the firing made by appellant, at the exhortion of co-accused Chandradeo Rao, hit his brother. It is his own evidence that when he was on the way to the place of occurrence he had heard sound of one firing. So it is not clear that which firing hit his brother, whether the first one the sound of which was heard by him when he was on way or the subsequent one, It is also not clear that who made those firings the sound of which was heard by him when he was at his house and when he was on way to place of occurrence. 10. Suraj Turha (P.W. 1), in Ms evidence, has stated that at the time of occurrence he was also cutting grass and he had seen the appellant armed with a rifle and co-accused Chandradeo Rao armed with a lathi. He admits that there is dispute between Krishna Shahi and Jagarnath Babu over a land in which at that time there was Bajra crop and the appellant and co-accused Chandradeo Rao were standing at the southern end of disputed land. He admits that there is dispute between Krishna Shahi and Jagarnath Babu over a land in which at that time there was Bajra crop and the appellant and co-accused Chandradeo Rao were standing at the southern end of disputed land. He has further stated that deceased was killed by the appellant and at that time the deceased was cutting grass in the sugarcane field near the disputed land. Thereafter, the deceased was taken to village and from there to Lauriya Hospital where he died. But in his cross-examination he has stated that the informant was also cutting grass there. This is no where the case of prosecution that informant was also cutting grass near the place of occurrence. According to the case of prosecution, the informant after hearing hulla from his house had gone to the place of occurrence where he saw the occurrence. This witness has further started that when he heard the sound of firing he was cutting grass towards west from the place, of occurrence and he had heard sound of 2-3 firings and thereafter he saw the appellant and co-accused Chandradeo Rao running away towards south. He has clearly stated that, when he saw the appellant and co-accused Chandradeo Rao by that time they had already crossed a distance of about 20 laggis. In paragraph 5 of his cross-examination, he has stated that he was at a distance of 100-150 yards from the place where the deceased had fallen down and he did not go near the deceased. Therefore, he cannot say that whether blood had fallen at that place or not and he after taking grass came back to his house. In view of his evidence that when he heard sound of firing at that time he was cutting grass towards the place of occurrence and then he saw the appellant and co-accused Chandradeo Rao fleeing away makes his evidence given in examination-in-chief that deceased was killed by the firing of appellant quite doubtful because his own statements suggest that he had no opportunity to see the actual firing as at the time of firing he was cutting grass in another field. Besides this he has 110 where stated in clear words that he saw the appellant firing on the deceased causing any injury. About his examination by I.O. he has stated that his statement was recorded 4 days after the occurrence. 11. Besides this he has 110 where stated in clear words that he saw the appellant firing on the deceased causing any injury. About his examination by I.O. he has stated that his statement was recorded 4 days after the occurrence. 11. Laxman Ram (P.W. 2), in his evidence, has stated that at the time of occurrence he was also cutting grass in the field of one Gagandeo Babu and when he heard sound of firing he left cutting grass and come out from the field and saw the appellant armed with rifle and co-accused Chandradeo Rao armed with lathi. He has further stated that appellant fired on the deceased and thereafter appellant and co-accused Chandradeo Rao both fled away. In para-5 of his cross-examination, he has stated that after hearing the sound of firing he came out from the field and saw the deceased fallen on the ground and blood was oozing out from his body and he found the appellant running towards south. This evidence creates serious doubt that he had seen the appellant firing on the deceased. 12. Janak Yadav (P.W. 3), in his evidence, has stated that at the time of occurrence he was going to Sareh from his house and in the way he met the informant. Thereafter, they both proceeded towards east and both heard hulla. According to him, he saw appellant carrying a rifle and co-accused Chandradeo Rao carrying a lathi and co-accused Chandradeo Rao said that some spy was sitting in the sugarcane field and he be killed and thereafter both the appellant and co-accused Chandradeo Rao stalled fleeing away towards their house. He along with the informant went near the dead body of deceased where he found the deceased lying in the field of one Gagandeo Babu. He has not stated that appellant fired on the deceased. When the Court questioned him what was the cause of death of deceased, in reply to that question he stated that deceased died of firing from rifle by appellant. In his cross-examination, he has stated that he and informant both alter hearing the sound of firing proceeded slowly towards the place of occurrence and he saw the deceased lying on the ground with bleeding injury and brain material of deceased had come out, from the brain. In his cross-examination, he has stated that he and informant both alter hearing the sound of firing proceeded slowly towards the place of occurrence and he saw the deceased lying on the ground with bleeding injury and brain material of deceased had come out, from the brain. So, his evidence is not convicting that he was an eyewitness and had seen the appellant firing on the deceased. 13. I.O. has not. been examined by the prosecution. Learned Counsel for the appellant has argued that non-examination of I.O. has caused serious prejudice to the appellant because very important omissions and contradictions in the earlier statements of prosecution witnesses about which their attention during their examination in Court has been drawn, could not be corroborated by I.O. From the evidence, we find that attention of P.W. 1 was drawn whether in his earlier statements he had stated that at the time of occurrence he was also cutting grass and had seen the occurrence, attention of P.W. 3 was drawn to the fact that whether in his earlier statements he had stated that co-accused Chandradeo Rao exhorted the appellant to kill some one who was sitting in the sugar cane field and who appeared to be a spy and attention of informant (P.W. 7) whether in his earlier statement he had stated that he had seen the members of Krishna Shahi and Jagannath Babu near the disputed land and had heard the sound of indiscriminate firing was done. In our opinion, the aforesaid attention of prosecution witnesses is towards some vital contradictions and very important omissions and non-examination of I.O. had definitely caused prejudice to the appellant. It has further been argued that the prosecution witnesses have admitted that there was dispute between Krishna Shahi and Jagarnath Rao over a land on which at the time of occurrence Bajara crop was standing and the documents (Ext. E and Ext. E/1) show that Krishna Shahi had lost a proceeding under Sec. 145 Cr. P.C. in respect of this land and Court below has also held that the oral evidence of P.W. 1 and Ext, E series clearly show that Bajara field bearing plot No. 77 was in possession of Jagamatb Rao. The fact that appellant is son of Jagamath Rao is admitted by P.W. 1. P.C. in respect of this land and Court below has also held that the oral evidence of P.W. 1 and Ext, E series clearly show that Bajara field bearing plot No. 77 was in possession of Jagamatb Rao. The fact that appellant is son of Jagamath Rao is admitted by P.W. 1. It has been argued that in view of this fact there was no occasion for the appellant to fire on the deceased who, according to the case of the prosecution, was cutting grass in a nearby field. It has been argued that non-examination of I.O. has prejudiced the case of appellant on the point of genesis of occurrence also because had he been examined his evidence would have clarified that in fact there were, no signs of cutting grass in any nearby field and which was also not possible in view of the evidence of P.W. 3 that there was diffused water in the field, and on the other hand, the appellant would have been in a position to prove his cane that it was the deceased and his other companions who variously armed with deadly weapons such as rifle, garasa, etc., had come to the land of appellant for cutting crop and on seeing the uncle of appellant they resorted to indiscriminate firing which hit to one of their own members who may be the deceased. 14. The case of the appellant is that at the time of occurrence he was at Bettiah for medical treatment because in those days he was suffering from the disease of appendicitis. The appellant examined seven witnesses in support of his case that at the relevant time he was suffering from appendicitis. Dr. R.N. Singh (IXW. 1), Dr. Thakur Rao (D.W. 2), Dr. Shambhu Nath Todi (D.W, 4), Dr. A.K. Verma(D.W. 5) and Dr. Navin Pd. Singh (D.W. 6) have stated that the appellant was under their treatment. They all have given different lates when they examined and prescribed medicines to the appellant. These dates vary from 12-11-1975 to 20-11-1975. Dr. Navin Pd. Singh (D.W 6) has said that he held operation of appendicitis of appellant on 20-1 1-1975. Dr. A.K. Verma (D.W. 5) has said that he had examined the appellant on 26-7-1975, 27-7-1975, 28-7-1975, 29-7-1975 and 30-7-1975. The occurrence of this case is said to have taken place on 28-7-1975. It is true that Dr. Dr. Navin Pd. Singh (D.W 6) has said that he held operation of appendicitis of appellant on 20-1 1-1975. Dr. A.K. Verma (D.W. 5) has said that he had examined the appellant on 26-7-1975, 27-7-1975, 28-7-1975, 29-7-1975 and 30-7-1975. The occurrence of this case is said to have taken place on 28-7-1975. It is true that Dr. A.K. Verma at that time was posted as Medical Officer at Nautan State Dispensary and the Court has disbelieved the plea of alibi of appellant observing that medical prescription from a doctor can be obtained easily. On. behalf of appellant not only member of doctors but Ramadhar Singh (D.W. 3), a Police Inspector who at, that time was posted as Officer-in-charge, Bettiah Police Station has also been examined, who in his evidence has stated that on 8-8-1975 he came to know that appellant was admitted in Bettiah Sadar Hospital and he then went to Bettiah Sadar Hospital and found the appellant admitted there since 7-8-1975. He has further stated that appellant had shown him the prescription of D.W. 1, D.W. 2 and D.W. 4. The Court below on the evidence of this witness has observed that because this witness only on 8-8-1975 learnt that appellant was admitted in the Bettiah Sadar Hospital, therefore, his evidence does not help the case of the appellant that even on the date of occurrence the appellant was suffering from appendicitis and was at Bettiah in connection with his treatment. Apart from the defence witnesses examined on behalf of appellant, we find that Nurul Hoda (P.W. 6), who is a witness 011 the inquest report, in his cross-examination has stated that at about 5-6 p.m. he put his signature on the inquest report and on that day till 12O clock in the noon he was at Bettiah where he had gone to get a patient examined by a doctor and there he had seen the appellant on a bed with pain in his stomach and the appellant was writhing with pain. He has proved his signature (Ext. 2) 011 the inquest report which shows that he put his signature on the inquest report on 28-7-1975. So, according to his evidence, on 28-7-1975 till 12O clock in the noon he was at Bettiah where he had seen the appellant with pain in his stomach lying on a bed at the clinic of a doctor. 2) 011 the inquest report which shows that he put his signature on the inquest report on 28-7-1975. So, according to his evidence, on 28-7-1975 till 12O clock in the noon he was at Bettiah where he had seen the appellant with pain in his stomach lying on a bed at the clinic of a doctor. This evidence supports the case of appellant about his alibi. Notwithstanding the alibi of appellant we find that the evidence of prosecution witnesses is not convincing on the point of firing by appellant hitting the deceased because almost all the prosecution witnesses have started that they after hearing the sound of firing saw that deceased had fallen on the ground with injuries. In the fardbeyan, the informant has stated that he went to the place of occurrence after hearing the sound of firing and when appellant had fired from his rifle three persons who were in the sugarcane field fell down and 3 others fled away from there. But in his evidence, he has not stated that who those two persons besides the deceased were who after firing by appellant had failed down on the ground. It is true that the medical evidence brought on record proves that the deceased died of injuries caused by fire-arms but then the prosecution has not adduced any evidence to prove the manner in which the occurrence as alleged took place. The own admission of informant about the assemblage of members of both rival groups near the place of occurrence, the strange coincidence that not only deceased but P.W. 1 and P.W. 2 also were cutting grass at the place near the disputed land where two rival groups had assembled, hearing the sound of a number of firings by informant and other prosecution witnesses but not bringing on record any evidence to show who made those firings, not bringing any evidence on record to show that the deceased who, as alleged, was cutting grass in sugarcane field was visible to the appellant and other prosecution witnesses are circumstances which create a serious doubt on the point of occurrence as has been narrated by the prosecution. P.W. 2 and P.W. 3 have admitted that the uncle of appellant has filed a counter case in which they along with the informant have been made accused-persons. 15. P.W. 2 and P.W. 3 have admitted that the uncle of appellant has filed a counter case in which they along with the informant have been made accused-persons. 15. Considering the entire evidence on record, we find that entire case of prosecution is shrouded with serious doubts and it appears that prosecution has not come up with true version of the occurrence. Besides this, there is no evidence against the appellant that he in fact fired on the deceased causing injuries which ultimately proved fatal. In this view of the matter, the conviction and sentence of appellant cannot be upheld. 16. In the result, this appeal is allowed. The judgment and order of the Court below convicting and sentencing the appellant is hereby set aside. The appellant, who is on bail, is discharged from the liability of his bail bonds. 17. S.K. Singh, J. I agree.