Judgment M.L.Visa, J. 1. Kesh Kumar Pandeya, who is appellant in Criminal Appeal No. 458 of 1986 and Sheojag Pandeya, appellant in Criminal Appeal No. 487 of 1986 are aggrieved by the judgment and order dated 8.3.1986 passed by the 2nd Additional Sessions Judge, Arrah, convicting and sentencing both of them to undergo rigorous imprisonment for life under Section 302 of the Indian Penal Code in Sessions Trial No. 32 of 1984 arising out of Sikrahta (Tarari) PS. Case No. 87 of 1983. As both the appeals are against the same judgment and order, they are being disposed of by this common judgment. 2. The case of the prosecution in short is that the informant Jai Ram (PW 3) on the night of 1.7.1983 was sleeping in his house situate at Village Sikraul P.S. Sikrahta (Tarari), District Bhojpur and at about 12 OClock in the night, he woke up for urination and he came out of his house and sat in front of his house for urination. His wife also came out of the house and was standing near him. The informant and his wife then saw three persons hiding beside the house of Hiralal Dawakar who became ready to catch hold of the informant and the informant then entered his house and tried to close the door from inside but those three persons started pushing the door from outside in order to open the door put the informant finally managed to close the door from inside. Thereafter, the informant heard sound of firing of two rounds and he also heard the cries of his uncle Jugal Ram (PW 2) asking for water. The informant with his wife then after opening the door came out of the house and found that his cousin Awadhu Ram was lying injured with injuries caused by fire-arms on his neck and chest. The further case of the prosecution is that the informant and his wife had seen three persons through the door of their house out of whom two were tall and the third one was short figured. Awadhu Ram died at the spot because of injuries sustained by him. The dead-body of Awadhu Ram was then taken to Fatehpur out-post and the informant along with Bankey Bihari Rai (DW 1) and Bhim Ram (PW 8) went to Sikarahta Police Station where his fardbeyan (Ext. 2) was recorded by S.I. Harihar Lal (PW 10). Awadhu Ram died at the spot because of injuries sustained by him. The dead-body of Awadhu Ram was then taken to Fatehpur out-post and the informant along with Bankey Bihari Rai (DW 1) and Bhim Ram (PW 8) went to Sikarahta Police Station where his fardbeyan (Ext. 2) was recorded by S.I. Harihar Lal (PW 10). In the fardbeyan, the informant stated that perhaps, the deceased might have told the names of the assailants to his father Jugal Ram (PW 2), who is uncle of the informant who was the first man to go near the deceased. On the basis of the fardbeyan, formal FIR (Ext. 3) was drawn up and Harihar Lal (PW 10), the I.O., visited the place of occurrence, prepared inquest report (Ext. 4) of the dead-body, seized blood-stained earth from the place of occurrence, prepared the seizure list (Ext. 5) and after investigation submitted charge-sheet against both the appellants. Cognizance of the case under Section 302, IPC was taken and the case was committed to the Court to Sessions where both the appellants faced trial and were convicted and sentenced as indicated above. 3. The defence of the appellants before the Court below was of quite innocence and false implication in this case. 4. In order to prove its case, the prosecution has examined 10 witnesses. Dharikshan Chaudhary (PW 1) and Bhim Ram (PW 8) have been tendered by the prosecution. Jai Ram (PW 3) is informant and Sheodaso Devi (PW 5) is the wife of the informant. Jugal Ram (PW 2) is the father of the deceased. Munmahesh Ram @ Maheshwar Ram (PW 4), Rajaram Ram (PW 6) and Raj Kumar (PW 7) are the witnesses who had seen both the appellants running away from the place of occurrence immediately after the occurrence. PW 9 Ramakant Tripathy is the doctor who had conducted autopsy and PW 10 Harihar Lal is the Investigating Officer of the case. 5. The death of deceased Awadhu Ram on the night between 1.7.1983 and 2.7.1983 because of injuries caused by fire arm is not in dispute. PW 9 Ramakant Tripathy is the doctor who had conducted autopsy and PW 10 Harihar Lal is the Investigating Officer of the case. 5. The death of deceased Awadhu Ram on the night between 1.7.1983 and 2.7.1983 because of injuries caused by fire arm is not in dispute. PW 9 Ramakant Tripathy, the doctor who held post mortem examination on the dead-body of the deceased Awadhu Ram in his evidence has stated that he found multiple punctured wound about 1-1/2 cm circular over left chest upper part and whole face including upper right chest numbering 29 and 2 pillets were also found in left eye and in his opinion, the death was caused due to haemorrhage and shock resulting from multiple pillet injury (gun shot injury) from close range and all the wounds were ante mortem in nature. He has stated that he held post mortem examination on 2.7.1983 and the time elapsed since death was 12 to 24 hours. Although in his evidence, he has not given the time of holding post mortem examination but the post mortem examination report (Ext. 1) proved by him shows that the post mortem examination was held at 12.40 p.m. on 2.7.1983. The evidence of PW 2, PW 3 and PW 4 and also PW 10, who had prepared inquest report establishes the fact that the deceased Awadhu Ram received gunshot injuries and he succumbed to those injuries. Not only this, DW 1 Bankey Bihari Rai also supports the fact that on the night between 1.7.1983 and 2.7.1983, he had heard sound of firing and was informed by the informant and Jugal Ram (PW 2) that the deceased had been killed and in his presence, the informant got his fardbeyan recorded by the police. About the time and place of occurrence also, there is no dispute. Now, the point for consideration before us is what evidence has been led by the prosecution in order to prove its case against the appellants and the manner in which the occurrence as alleged had taken place. About the time and place of occurrence also, there is no dispute. Now, the point for consideration before us is what evidence has been led by the prosecution in order to prove its case against the appellants and the manner in which the occurrence as alleged had taken place. PW 3, Jai Ram, the informant, in his evidence has stated that at about 12 Oclock in the night on the day of occurrence when he came out from his house for urination, he saw 4-5 persons standing at a distance of 10 steps from the house and those persons wanted to catch hold of him and he immediately entered his house and tried to close the door but those persons started pushing the door from outside and during this period from the gap of the door he in the light of a dhibari which was burning in the house, identified both the appellants. He has further stated that anyhow he managed to close the door from inside and, thereafter, he and his wife raised alarm and immediately after he heard sound of firing and he also heard cries of his uncle Jugal Ram for water and when he came out from his house along with his wife with water, he saw the deceased lying injured and the deceased disclosed that both the appellants had fired on him. According to him, at that time, besides his wife, the mother of the deceased, Munmahesh Ram (PW 4), Naresh Ram (not examined), Rajaram Ram (PW 6) and Raj Kumar (PW 7) were also present. Thereafter the deceased was taken to a doctor at Fatehpur Bazar where the deceased was found dead and, thereafter, with the help of the police posted at out-post in Fatehpur Bazar, information to Sikarahta Police Station was given and from there the police came and recorded the fardbeyan in Fatehpur Bazar. His evidence is quite contradictory to his statement which he made at the time of giving fardbeyan. In the fardbeyan, he has not named any accused and he clearly stated that it is just possible that the deceased might have disclosed the names of the assailants to his uncle Jugal Ram who, according to him, was the first man to reach near the deceased but in his evidence, as stated above, he has claimed to have identified the appellants from the gap of the door. The fardbeyan (Ext. The fardbeyan (Ext. 2) shows that it was recorded at Sikarahta Police Station whereas in his evidence, the informant has said that the fardbeyan was recorded in Fatehpur Bazar. In his evidence, he has further stated that the deceased told him that the appellants had fired at him but the fardbeyan was quite silent on this point. In his evidence, he has stated that the deceased was taken to Fatehpur Bazar 2-3 minutes after receiving gunshot injuries but in the fardbeyan, he has stated that the deceased died at the spot 10-15 minutes after receiving injuries. Sheodaso Devi (PW 5), the wife of the informant, in her evidence has stated that at the time of occurrence she was sleeping in her house and her husband had gone out for urination and she woke up on hearing the cry of her child and, thereafter, she lit a lamp and found 8-10 persons in a field in front of her house and, thereafter, her husband entered the house running and closed the door from inside. She has further stated that some persons started pushing the door from outside out she did not identify any of them and the deceased has disclosed that the appellants had fired at him. She has not stated that she also went to the place where the deceased was lying injured. Her evidence does not support the evidence of the informant, who is her husband, that she along with her husband had gone to the place where the deceased was lying injured. She has further stated that she was not examined by the police and for the first time, she is deposing in Court about the occurrence. 6. Munmahesh Ram (PW 4), Rajaram Ram (PW 6) and Raj Kumar (PW 7) have stated that on hearing the sound of firing, they came out from their respective houses and they saw, both the appellants running away. According to Munmahesh Ram (PW 4) and Rajaram Ram (PW 6), there were 8-10 persons who were running away out of which they identified only the appellants whereas Raj Kumar (PW 7) has stated that he saw only two appellants who were running way. According to Munmahesh Ram (PW 4) and Rajaram Ram (PW 6), there were 8-10 persons who were running away out of which they identified only the appellants whereas Raj Kumar (PW 7) has stated that he saw only two appellants who were running way. Out of these three witnesses, only Munmahesh Ram (PW 4) has further stated that the deceased had disclosed that the appellants had fired at him and Jugal Ram (PW 2) had told him that he had seen the appellants running away. Jugal Ram (PW 2), father of the deceased, has said that on the day of occurrence in the night, he was sleeping in his house with the deceased and he woke up on hearing the cries of the informant and he then ran with the deceased towards the place from where the informant was crying and the deceased was ahead of him and in the meantime, there was a firing and his son fell down after receiving bullet injury and when he went near him, his son told that the appellants had fired at him and at that time, the informant, PW 4 and PW 6 had also reached there. He has not stated that he told Munmahesh Ram (PW 4) that he had seen the appellants running away from the place of occurrence. In cross-examination, he has stated that when his son was being taken Fatehpur Bazar, nobody took expenses from him because he had become unconscious. But the informant Jai Ram (PW 3) in his evidence has stated that after the occurrence, he along with other witnesses took the deceased to Fatehpur Bazar to a doctor where the deceased was found dead and he then returned to his house and informed the father of the deceased that the deceased had died and on hearing this news, the father of the deceased became unconscious. He has clearly stated that when the deceased was being taken to a doctor, at that time father of the deceased had not become unconscious. 7. The informant in his evidence has stated that the fardbeyan was not read over to him and later on he came to know that names of the appellants had not been included in the fardbeyan. Therefore, he filed a protest petition. 7. The informant in his evidence has stated that the fardbeyan was not read over to him and later on he came to know that names of the appellants had not been included in the fardbeyan. Therefore, he filed a protest petition. As stated earlier in the fardbeyan, the informant has not named any one as assailant and the statement made in his evidence that the deceased had disclosed the names of the appellants is completely missing in the fardbeyan. Now about the evidence of informant that the police did not record the name of the appellants in the fardbeyan, we find that there are two witnesses namely, Bankey Bihari Rai and Dharikshan Choudhary who had put their signatures on the fardbeyan. Bankey Bihari Rai has not been examined by the prosecution and he has appeared as DW 1 and has deposed that the fardbeyan of the informant was recorded by the police in his presence and after recording the same, it was read over to the informant who found it correct and, thereafter, put his L.T.I, on it and he also put his signature (Ext. A) on the fardbeyan. He has clearly stated that the informant at the time of recording his fardbeyan had not named anybody as assailant. The prosecution has given suggestion to him that he is a relation of appellants and, therefore, he after taking the police in his connivance got a wrong fardbeyan recorded. He has denied the suggestion that prosecution has not proved his relationship with the appellants. Not only this, the prosecution for reasons best known to it tendered another witness of the fardbeyan who is Dharikshan Chaudhary (PW 1). 8. The Court below has taken into consideration the protest petition filed on behalf of the informant and has observed that in the protest petition, names of the appellants as assailants are mentioned and therefore, the omission of names of the appellants in the first information report has been satisfactorily explained by the prosecution. 8. The Court below has taken into consideration the protest petition filed on behalf of the informant and has observed that in the protest petition, names of the appellants as assailants are mentioned and therefore, the omission of names of the appellants in the first information report has been satisfactorily explained by the prosecution. It appears that the Court below failed to take note of the fact that the protest petition was filed not by the informant but Jugal Ram, father of the deceased, who has stated that because the Deputy Superintendent of Police is on friendly terms with the appellants, therefore, their names were omitted in the fardbeyan and the police was not properly investigating the case, whereas during the trial, it was the case of the prosecution that Bankey Bihari Rai (DW 1) who happens to be a relation of appellants, after taking into connivance the police got a wrong fardbeyan recorded which is apparent from the suggestion given to Bankey Bihari Rai (PW 1). In order to explain the omission of names of the appellants in the fardbeyan, the prosecution is trying to explain this by taking different grounds at different times. The police after investigation submitted charge-sheet against the appellants. This fact also goes against the case of the prosecution that police was in league with the appellants. Besides this, in the fardbeyan the informant has stated that because the father of the deceased was the first man to go near the deceased, so it is just possible that the deceased might have told him the names of the appellants. This statement is very significant and it appears that a scope was deliberately left while giving the fardbeyan for adding some persons as assailants subsequently after due deliberations. Had the police been in the league of appellants right from the very beginning, there was no occasion for the police to insert such type of statement and allow it to remain in the fardbeyan. Apart from this vital omission in the fardbeyan, the evidence of the prosecution witnesses as discussed above is not consistent. Admittedly, there is no eye-witness of the occurrence and in the entire case of prosecution, which appears from the evidence of the witnesses examined on behalf of the prosecution, is based on the fact that the deceased had disclosed the names of the appellants as his assailants. Admittedly, there is no eye-witness of the occurrence and in the entire case of prosecution, which appears from the evidence of the witnesses examined on behalf of the prosecution, is based on the fact that the deceased had disclosed the names of the appellants as his assailants. Jugal Ram (PW 2), father of the deceased has stated that after hearing halla, he along with the deceased proceeded towards the place from where the halla was being made and he had a torch in his hand and his son was with him moving just 5-7 steps ahead from him but it was very strange that his son identified the assailants but he could not, where the fact is that the deceased received injuries on his face suggesting that he was fired at from the front side. The wife of the informant is also not supporting the cause of the informant. The story of identifying the appellants from the split of door in the light of a dhibari, which was burning in the room in absence of any light outside is also not convincing and moreover this statement was no given to the police during the course of investigation. 9. Thus, considering the entire evidence on record, I find that the prosecution has not been able to prove its case beyond all reasonable doubts. 10. In the result, both the appeals are allowed and the judgment and order of the Court below convicting and sentencing the appellants is hereby set aside. The appellants are discharged from the liabilities of their bail bonds. Ram Nandan Prasad, J. 11 I agree.