Judgment 1. Both these appeals, arising out of judgment of conviction ad sentence dated 27.9.1986, passed by 2nd Additional Sessions Judge, Nawadah in Sessions Trial No. 142 of 1985, are being disposed of by this common judgment by which appellant Kailash Yadav of Criminal Appeal No. 536 of 1986 was convicted under Sec. 302 of the Indian Penal Code and Sec. 27 of the Arms Act and was sentenced to undrgo life imprisonment and rigorous imprisonment for five years respectively and the remaining three appellants of criminal Appeal No. 524 of 1986 were convicted under Secs. 302/34 of the Indian Penal Code and were sentenced to undergo imprisonment for life thereunder and appellant Basudeo Yadav was further convicted under Sec. 27 of the Arms Act and was sentenced to undergo rigorous imprisonment for five years with a direction that sentences would run concurrently. 2. The prosecution case, as given in the fardbeyan (Ext. 1/2) of Ram Swarup Chauhan (P.W. 11) recorded at P.O. village Sirpatiya at 9.00 p.m. on 23.5.1985, was that on the same day at 6.30 p.m. an altercation took place between appellant Kailash Yadav and one Balo Chauhan on the point of flow of drain water from the hand-pipe which was situated in the east of the house of Kailash Yadav. Further case of prosecution was that the informant and his brother Ram Chandra Chauhan (deceased) reached there and objected regarding diversion of the drain from west to east and, thereafter, Kailash Yadav went to his house and brought a country-made gun and appellant Basudeo Yadav also brought a country-made gun while other appellants pelted brick-bats and when the informant and his brother fled to save themselves, it is alleged that Kailash Yadav fired a shot causing injury in the left side of the head of Ram Chandra Chauhan as a result of which he died at the spot. It was further alleged that appellant Basudeo Yadav also fired a shot on the informant which did not hit him and he escaped narrowly. In the fardbeyan Krishna Chauhan (P.W. 8) and Kesho (P.W. 3) were cited as witness of the occurrence. On the basis of the fardbeyan, Nardiganj P.S. Case No. 21 of 1985 was registered against these appellants and the police, after due investigation, submitted charge-sheet against these appellants who, after cognizance and commitment, were put on trial and were convicted as aforesaid. 3. On the basis of the fardbeyan, Nardiganj P.S. Case No. 21 of 1985 was registered against these appellants and the police, after due investigation, submitted charge-sheet against these appellants who, after cognizance and commitment, were put on trial and were convicted as aforesaid. 3. The defence, as gathered from suggestion, put to P.Ws. and the statement of accused persons under Sec. 313 of the Code of Criminal Procedure appeared to be that they were falsely implicated in this case and that the deceased was a criminal who might have been killed somewhere else and these appellants were falsely implicated in this case due to enmity. 4. The prosecution examined altogether 16 witnesses in support of its case. It has been rightly submitted by the learned Counsel for the appellants and it has also been mentioned by the Trial Court in paragraph-5 of the judgment that two types of prosecution witnesses were examined in the Trial Court. One set of witnesses admitted that the deceased and the informant were aggressors. They are P.Ws. 1, 2, 4, 5 and 7. In support of other version, only, the informant (P.W. 11) and P.W. 8 have been examined. P.W. 12 Maharani Devi was tendered for cross-examination and P.W. 13 Somar Gope was a formal witness. P.W. 3 Kesho Chauhan, cited as a witness in the fardbeyan, was declared hostile and P.W. 6 Saukhi Sao was also declared hostile. P.W. 9 Jodhan Chauhan and P.W. 10 Kaulasia Devi, the widow of the deceased, are hearsay witnesses. P.W. 15 is Dr. Bindeshwari Prasad who held post-mortem examination on the dead-body of the deceased and proved the post-mortem report (Ext. 2). P.W. 14 is part Investigating Officer who simply submitted charge-sheet and P.W. 16 is the Investigating Officer, S.I. Bijendra Prasad Yadav. No defence witness has been examined in this case. 5. P.W. 1 Indra Deo Yadav, though stated about some altercation regarding flow of drain water, stated that the informant and his brother pelted stones and they brought bomb and pistol meaning thereby they were aggressors and he could not say as to how Ram Chandra Chauhan died. In his cross-examination, he stated that there was no drain towards east. This is important in view of the evidence of PW. 11 who in his evidence had given a go bye of his earlier version in fardbeyan (Ext. In his cross-examination, he stated that there was no drain towards east. This is important in view of the evidence of PW. 11 who in his evidence had given a go bye of his earlier version in fardbeyan (Ext. 1/2) regarding flow of drain water towards west of the hand-pipe. P.W. 1 went to the extent by stating that he could not see the appellants there. Similar is the evidence of P.W 2. Kishun Yadav who also stated that the informant and the deceased were aggressors. Strongly, both of them were not declared hostile. P.W. 5 Kuldip Yadav also stated that there was altercation between Ram Chandra Chauhan and Baso Yadav on the point of flow of drain water and on hulla, Ram Swarup brought a pistol from his house and Ram Chandra Chauhan brought a bomb and threw it on a palm tree. He could not say as to how Ram Chandra Chauhan died. P.W. 7 Rajendra Yadav, the choukidar of the village, also did not support the prosecution case and he was also not declared hostile by the prosecution. In his cross-examination, he stated that the deceased and the informant both were criminals and he also stated that both were aggressors who fired pistol and threw bomb. It was rightly submitted that on this ground alone the prosecution case fails. 6. Regarding the other version of the prosecution case, P.W. 8 Ram Krishna Chauhan was examined who stated that he saw the deceased and Ram Swarup fleeing away, being chased by these appellants and that in the main lane, Kailash fired his gun causing injury to Ram Chandra Chauhan as a result of which he fell down and died. He also stated that Baso also fired at Ram Swarup which did not hit him. He admitted that at the time of occurrence, he had not gone at hand-pipe and as such he could not say about that part of the occurrence which took place near the hand-pipe. It was submitted by the learned Counsel for the appellants that this witness had not claimed to be an eye-witness before the I.O. but subsequently in his evidence, he stated the facts, as if he was an eye-witness. It was submitted by the learned Counsel for the appellants that this witness had not claimed to be an eye-witness before the I.O. but subsequently in his evidence, he stated the facts, as if he was an eye-witness. It was also submitted that P.W. 16, the Investigating Officer, in paragraph 16 of his evidence has stated that this witness (P.W. 8) had not stated before the I.O. that when Ram Chandra and Ram Swarup turned towards east, there was firing and that Kailash had fired first and that Baso had also fired. I find that attention of this witness was not properly drawn towards his statement made before the police. However, the evidence of P.W. 16, the I.O., indicates that this witness (P.W. 8) was not an eye-witness on the point of alleged firing. Most important point is that Balo Chauhan with whom as per fardbeyan, there was an altercation has not been examined. 7. P.W. 11, the informant, in his evidence had given a go-be to the assertion in the fardbeyan (Ext. 1/2) where the prosecution case was that there was an altercation between Balo Chauhan and Kailash Yadav regarding flow of drain water. Here in his evidence the P.W. 11 changed the case by asserting that the altercation took place between Kailash Yadav and Ram Chandra Chauhan regarding flow of drawing water. He also stated about pelting of brick-bats by other appellants resulting injury on his right hand. Though he further claimed that his injury was examined by the doctor but no such injury report was produced in support of his assertion that he had sustained injury. His attention was drawn towards statement made in the fardbeyan where he claimed that altercation took place between Balo and Kailash but he denied to have so asserted in the fardbeyan. According to P.W. 11, there was no blood near the hand-pipe but the I.O. found blood near the hand-pipe also regarding which no assertion was made by the prosecution and it does not fit in the story of prosecution. The learned Advocate for the appellants further pointed out that this witness has also changed the prosecution case regarding flow of drain water from east to west and it was pointed out that the Investigating Officer (P.W. 16) specifically mentioned that he did not find any sign of flow of drain water towards east. 8. P.W. 15 Dr. The learned Advocate for the appellants further pointed out that this witness has also changed the prosecution case regarding flow of drain water from east to west and it was pointed out that the Investigating Officer (P.W. 16) specifically mentioned that he did not find any sign of flow of drain water towards east. 8. P.W. 15 Dr. Bindeshwari Prasad proved the post-mortem report (Ext. 2) and stated to have held post-mortem examination on the dead body of Ram Chandra Chauhan at 10.00 a.m. on 24.5.85 and to have found the following ante-mortem injury on his person: (i) A lacerated wound 1/2" × 1/4" over the left side of forehead with blood around the wound. Margin of the wound was inverted. There was no blackening of margin of surface. The depth was more than one inches. The corresponding frontal bone of the skull was fractured and there was hole into the skull and on dissection there was a bullet like metallic piece inside the brain which was recovered and was sent to the police along with report. There was no outlet but it has struck the bone on the opposite side and the bone was cracked. All the internal organs were found intact and pale. According to P.W. 15, the death was caused due to haemorrhage and shock caused by injury No. 1 which was caused by fire-arm and he further opined that injury was sufficient in ordinary course of nature to cause death. Though this witness has assessed time of death to be between 24 to 36 hours, but it appears that since mortis had started disappearing, the time should have been between 12 to 24 hours and it also fits in the prosecution case. The learned Advocate for the appellants did not contest on this point. The Trial Court has discussed the evidence of P.W. 16 in paragraph 17 of its judgment but in view of his assertion that he did not find any sign of drain towards east, the genesis of the occurrence and the finding of the I.O. regarding location of the drain falsified the prosecution case. 9 Summing up the entire discussion made above, we find that prosecution case has been developed from stage to stage and it is a peculiar case in which five P.Ws. 9 Summing up the entire discussion made above, we find that prosecution case has been developed from stage to stage and it is a peculiar case in which five P.Ws. 1, 2, 4, 5 and 7 did not support the prosecution case rather those witnesses asserted that the informant and the deceased themselves were aggressors and yet were not declared hostile indicating that their statement before police was also the same, falsifying the prosecution case. It was also rightly submitted by the learned Counsel for the appellants that P.W. 8 was not an eye-witness before the I.O. but has posed himself to be an eye-witness in Court and P.W. 11, the only witness, supporting the prosecution case, has changed the case and made development in the prosecution case from stage to stage which makes the case doubtful and that prosecution has failed to prove the genesis and origin of the occurrence. From a critical analysis of the materials on record and from a careful scrutiny of the evidence of the witnesses made above, we are constrained to hold that prosecution has failed to prove its case beyond reasonable doubt and the appellants are entitled to get benefit of doubt. 10. In the result, both these appeals are allowed and the conviction and sentence passed against the appellants are hereby set aside and the appellants are discharged from the liability of their bail bonds.