Judgment M.L. Visa, J. This appeal by appellant Upendra Singh, who was sole accused before the court below, is directed against the judgment and order dated 30.6.1986 passed by the Sessions Judge, East Champaran, Motihari, in Sessions Trial No. 115 of 1984 arising out of Motihari Town P.S. Case No. 447 of 1983 convicting and sentencing the appellant to undergo R.I. for life under section 302 I.P.C. and 3 years under section 27 of the Arms Act. Both the sentences were, however, ordered to run concurrently. The brief facts of this case are stated below. 2. Devendra Pd. Singh (P.W.9), the informant, on 30.11.1983 was posted as Vigilance Officer at M.S. College, Motihari, P.S. Motihari, within the district of East Champran and on that day at about 5 P.M. when he was leaving the College through its gate, some students came running to him and informed that in one bedded room no.11 of the College hostel one man was groaning and the room was locked from outside. The informant then sent this information to Sri Bhola Nath Singh (P.W.10), the Principal of the College and he along with those students went to room no.11 of the hostel and got the lock of the room broken and thereafter found that deceased Prabhu Nath Singh, who was a student of 2nd year commerce, was groaning on the floor and blood was oosing out from his head. In the meantime the Principal Sri Bhola Nath Singh (P.W.10) also reached there and the deceased was sent to hospital for treatment. The room was relocked because a country made pistol, cartridges etc. were found there, and the Motihari Police was informed. Thereafter S.I. Shyam Sundar Singh (P.W.12) reached there and seized a country made pistol (Material Ext. I), two live cartridges (Material Ext. II and 11/1), Pee Cup (Material Ext. III), pellets (Material Ext. IV) and pad (Material Ext. V) and prepared seizure list (Ext.4) He further seized a pair of chappal (foot-wear slipper) outside room no.11 and prepared another seizure list (Ext. 4/1). Thereafter he went to Motihari Sadar Hospital where he found that the deceased was in an unconscious state. II and 11/1), Pee Cup (Material Ext. III), pellets (Material Ext. IV) and pad (Material Ext. V) and prepared seizure list (Ext.4) He further seized a pair of chappal (foot-wear slipper) outside room no.11 and prepared another seizure list (Ext. 4/1). Thereafter he went to Motihari Sadar Hospital where he found that the deceased was in an unconscious state. The deceased was forwarded to Patna Medical College & Hospital where he died and the I.O. obtained post mortem report (Ext.5) and after investigation submitted charge sheet against the appellant under section 302 of the Indian Penal Code and 27 of the Arms Act. The cognizance of the case was taken by the Chief Judicial Magistrate, East Champaran, who committed the case to the Court of Session where the appellant was put on trial and he was convicted and sentenced as stated above. 3. It has been urged on behalf of the appellant that he is quite innocent and has been falsely implicated in this case. 4. Admittedly, there is no direct evidence in this case and the case of the prosecution is entirely based on circumstantial evidence. 5. The prosecution has examined 12 witnesses. Ashok Kumar Singh (PW.4) and Baikunth Bihari Singh (P.W.5) have been declared hostile by the prosecution as they have said that they know nothing about the occurrence. Bipin Prasad Shrivastava (P.W.3) and Shambhu Sharan Singh (P.W.6) have also been declared hostile and they have simply said that they had seen the deceased with bleeding injury on his head. P.W.3 Bipin Pd. Shrivastava has said that he saw the deceased in room no.11 whereas Shambhu Sharan Singh (P.W.6) has said that he saw the deceased when he was being carried on a rickshaw to hospital. Ram Eqbal Singh (P.W.7) is a witness of seizure list which was propared when a country made pistol, pellets etc. were recovered from room no.11 but he has also been declared hostile because although he has proved his signatures (Ext.2) on the seizure list but according to him, he put his signatures on the seizure list after calling him from the hospital and articles seized were kept on a table in front of room. were recovered from room no.11 but he has also been declared hostile because although he has proved his signatures (Ext.2) on the seizure list but according to him, he put his signatures on the seizure list after calling him from the hospital and articles seized were kept on a table in front of room. Sidheshwar Kumar (P.W.8) has stated that on 30.11.83 at about 1.30 P.M. he along with the deceased had gone to Balbanwa Mohalla for tuition and from there they returned back to hostel at about 3.20 P.M. and the deceased went in room no. G. 5 in which the deceased at that time was living with him and he himself went to common room. At about 4 P.M. when he was in common room he heard sound of firing and thereafter he went to room no.G.2 in which Bipin Pd. Shrivastava (P.W.3) was residing. He has further stated that. on the same day at about 5 P.M. on hearing halla, he went to room no.G.5 which is situate adjacent to room no.11 and saw that some students were carrying the deceased who was unconscious at that time and he along with them went to hospital where he came to know from others that the deceased had been taken out from room no.11. He has said that he has not been examined by the Police and he has also been declared hostile by the prosecution. 6. Devendra Prasad Singh (P.W. 9), the informant, and Bhola Nath Singh (P.W.10), the Principal of the College have said that on 30.11.83 at about 4 P.M. they saw the deceased lying in the pool of blood in room no.11 and a country made pistol, cartridges etc. were found in that room. The informant has said that at that time room was allotted to the appellant and this information was given to him by the students but in the cross-examination he has said that he does not know the name of anyone of those students, who had informed him that at that time that room no.11 was allotted to the appellant. Similarly the Principal Bhola Nath Singh (P.W.10) has said that one Ashok Kumar Singh who was occupant of room no.9 had told him that room no.11 was allotted to the appellant. This Ashok Kumar Singh has not been examined by the prosecution. Similarly the Principal Bhola Nath Singh (P.W.10) has said that one Ashok Kumar Singh who was occupant of room no.9 had told him that room no.11 was allotted to the appellant. This Ashok Kumar Singh has not been examined by the prosecution. Raqhubans Narain Singh (P.W.11) was posted as Sergeant Major in Police Lines Motihari at the relevant time and he has said that he examined country made pistol and cartridges which were found effective. Shyam Sundar Singh (P.W.12), the I.O. of the case has said that on receipt of information from the informant he went to hostel of M.S. College, Motihari, recorded the fardbeyan of the informant (Ext.3), seized the articles from room no.11 and prepared the seizure list. He also found a pair of chappal outside room no.11. He obtained post mortem report and after investigation submitted charge-sheet. The prosecution has not examined the doctor who conducted post mortem examination on the dead body of the deceased but it has examined another doctor who is Dr. Raghvendra Pd. Karan (P.W.1) who was posted at that time in Sadar Hospital, Motihari where the deceased was first forwarded. According to him, fire arm injury on right side of forehead was found on the deceased. From the judgment of the court below it appears that the post mortem report was taken into evidence on admission by the defence and according to this post mortem report (Ext.5) the death was caused due to fire arm injury. 7. Considering the entire evidence on record it is crystal clear that there is no evidence against the appellant. Only one circumstance has been tried to be proved by the prosecution which is occupancy of room no.11 of the hostel by the appellant at the relevant time where the deceased was found lying in an injured condition with a bleeding head injury. Although there is no positive evidence on the point of occupancy of Room No.11 by the appellant but for the sake of argument, if it be considered that at that time room no.11 was in occupation of appellant even then it will not, itself, prove that the appellant caused injury to the deceased by any fire arm which resulted into the death of the deceased. There is not even an iota of evidence to show that the appellant was present in the College on the day of occurrence. There is not even an iota of evidence to show that the appellant was present in the College on the day of occurrence. On the other hand, it is the positive evidence of Bipin Pd. Shrivastava (P.W.3) in his cross-examination that appellant had left the hostel for his native house about 4-5 days prior to the occurrence. From the judgment of the court below it appears that the learned Sessions Judge, East Champaran, Motihari by taking into consideration the circumstances that room no.11 of the hostel at the relevant time was allotted to the appellant, coupled with the fact that appellant during the course of his examination under section 313 Cr. P.C. has not made any attempt to explain the evidence of the prosecution that room no.11 was in his occupation, has observed that the only reasonable conclusion is that any how the appellant managed to call the deceased, who was living in the joining room, in his own room and thereafter he shot at him at point blank range on his forehead with an intention to commit his murder. We wonder how this inference has been drawn when there is absolutely no evidence to this effect. We are therefore unable to accept this finding of the court below. 8. For the reasons stated above, this appeal is allowed and the judgment and order of the court below is set aside. The appellant is acquitted of the charge and he is also discharged from the liability of the bail bonds.