Judgment M.L.Visa, J. 1. Jagarnath Singh and Mahesh Singh, the two appellants before us, are aggrieved by the judgment and order dated 7th March, 1987 passed by the VIth Additional Sessions Judge, Purnea, in Sessions Case No. 126 of 1985 convicting and sentencing both the appellants to undergo RI for life under Section 302/34 of the Indian Penal Code. 2. The prosecution case, in short, is that on 18-3-1984 in the night Informant Nand Kishore Singh PW-1 along with deceased Harish Chandra Pd. Singh was sleeping in the house of deceased Harish Chandra Pd. Singh situate at Narpatganj Bazar, P.S. Narpatganj, District Purnea. They both were sleeping on a single chowki (wooden cot). At about 11.45 p.m. deceased Harish Chandra Pd. Singh awoke the Informant and said that mosquitoes had entered the mosquito net and he lifted the mosquito net and with his handkerchief started repelling the mosquitoes. The Informant immediately then from the eastern window of the room heard sound of firing and the deceased Harish Chandra Pd. Singh yelled that he had been injured by a bomb and the Informant saw a bleeding injury on the left side of the chest of deceased Harish Chandra Pd. Singh. The Informant then put bandage on the wound of deceased and inquired from him what had happened on which the deceased disclosed that both the appellants through the open window had injured him either by a bomb or by opening fire from a fire arm. The Informant then tried to open the door but found that it was bolted from outside by chain. The Informant anyhow managed to open the door and came out and raised hulla. By that time the miscreants had already fled away and on the hulla raised by the Informant Jeetan Bhagat PW-2, Raghunandan Bhagat PW-4 and others came there to whom also the deceased disclosed the names of appellants as his assailants. Two doctors, namely, Dr. Matin and Dr. Bishnu Kant Jha (both not examined) were called from the hospital but deceased Harish Chandra Pd.Singh died after one hour. The fardbeyan (Ext.-1) of Informant Nand Kishore Singh PW-1 was recorded on 18-3-1984 at 01.00 hours at the place of occurrence by S.I. Neelam Kumar Singh PW-8. Two doctors, namely, Dr. Matin and Dr. Bishnu Kant Jha (both not examined) were called from the hospital but deceased Harish Chandra Pd.Singh died after one hour. The fardbeyan (Ext.-1) of Informant Nand Kishore Singh PW-1 was recorded on 18-3-1984 at 01.00 hours at the place of occurrence by S.I. Neelam Kumar Singh PW-8. In the fardbeyan, the Informant giving the motive of the appellants stated that appellants had long standing enmity with the deceased and his family members on account of domestic and political rivalry and there was litigation between them and on 17-3-1984 at about 3 p.m. appellant Mahesh Singh had met the deceased in Narpatganj Market. According to the case of prosecution, S.I. Neelam Kumar Singh PW-8, the IO, who recorded the fardbeyan of Informant was posted as Officer Incharge at Narpatganj PS at that time and on 18-3-1984 at about 12.05 a.m. he heard sound of firing from Narpatganj Market and he then after recording this fact in the Station Diary Entry (Ext.-4) went to the place of occurrence where he found the deceased lying in an injured condition on a chowki who was not in a position to speak because of injuries sustained by him and in spite of his waiting there for making any statement by the injured after his regaining consciousness, the injured succumbed to injuries without making any statement and he then sent the fardbeyan to Police Station through Chaukidar where formal FIR (Ext.5) was drawn under lection 302/34 of the Indian Penal Code against both the appellants. As it was midnight so inquest report (Ext.7) was not prepared at that time and was prepared on the next day in the morning, dead body of the deceased was sent for post-mortem examination and the IO after inspecting the place of occurrence recorded the statements of witnesses, received the post-mortem examination report (Ext.2) and the reply of doctor who had conducted autopsy on the dead body of the deceased to some queries made by him and the charge of investigation was handed over to S.I.Ghanshyam Mishra PW-6 on account of his transfer, who submitted charge-sheet in this case. After taking cognizance the case was committed to the Court of Sessions where charge under Section 302/34, IPC was framed against both the appellants who after trial were found guilty for the charge and have been convicted and sentenced to undergo RI for life. 3. After taking cognizance the case was committed to the Court of Sessions where charge under Section 302/34, IPC was framed against both the appellants who after trial were found guilty for the charge and have been convicted and sentenced to undergo RI for life. 3. The case of the defence as it appears from the trend of cross examination of the prosecution witnesses was that they have been falsely implicated in this case on account of enmity. 4. The prosecution has examined 9 witnesses in this case. Nand Kishore Singh PW-1 is the Informant. Jeetan Bhagat PW-2, Nand Lal Bhagat PW-3 and Raghunandan Bhagat PW-4 are the witnesses who had reached the place of occurrence after the occurrence had already taken place and were told the names of the appellants by deceased. Shyam Sundar Rai PW-5 is a formal witness, who produced the photostat copy of letter No. 261 dated 30-5-1984 (Ext.3) written by doctor in reply to some queries made by the I.O. Neelam Kumar Singh PW-8. S.I. Ghanshyam Mishra PW-6 had simply submitted charge-sheet in this case without conducting investigation. Dr. Md. Habibullah PW-7 is the doctor who had conducted autopsy on the dead body of the deceased. Neelam Kumar Singh PW-8 is the I.O. of the case who had conducted the investigation but on account of his transfer could not submit the charge-sheet which was submitted by another Police Officer Ghanshyam Mishra PW-6. Rajendra Singh PW-9 is a Police Constable and is a formal witness who had taken the dead body of the deceased to Araria Hospital for post-mortem examination along with Chaukidar and had identified the deceased before the doctor. 5. Nand Kishore Singh PW-1, the Informant has said that on 17-3-1984 he along with the deceased came from their village to Narpatganj at the Basa (house) of deceased Harish Chandra Pd. 5. Nand Kishore Singh PW-1, the Informant has said that on 17-3-1984 he along with the deceased came from their village to Narpatganj at the Basa (house) of deceased Harish Chandra Pd. Singh where they on that day in the night went to sleep on a choki and they had put a mosquito net on it and in the night the deceased awoke him saying that mosquitoes were biting him and the deceased flashed a torch and thereafter started thrashing mosquito net in order to repel the mosquitoes whereas he himself remained lying and thereafter he heard sound of firing and the deceased screamed that he had been injured by bomb or firing and he then found a gun shot injury on the left side of the chest of the deceased and he then put bandage on the wound caused to deceased by the injury and the deceased told him that appellants had inflicted the injuries either by bomb or by firing. He has further stated that he then tried to open the door but the door was bolted from outside but he any how managed to open the door and came out and informed the neighbours and also raised hulla on which Jeetan Bhagat PW-2, Raghunandan Bhagat PW-4 and a number of other persons assembled and the deceased told them also the names of both the appellants. He has then added that doctor had also come there. According to him, there was enmity between the appellants and deceased from before and there was litigation also between them and on 17-3-1984 he had met the appellant Mahesh Singh in Narpatganj market. Jeetan Bhagat PW-2, Nand Lal Bhagat PW-3 and Raghunandan Bhagat PW-4 have stated that on the day of occurrence in the night the Informant awoke them and then they went to the house of deceased Harish Chandra Pd. Singh and found that deceased had injury on the left side of his chest which was bandaged. Jeetan Bhagat PW-2 has said that the deceased told him that both the appellants after causing injury to him fled away whereas Nandlal Bhagat PW-3 has said that deceased told him that injury to him was inflicted by appellant Jagarnath Singh and son of Baldeo and Raghunandan Bhagat PW-4 has said that the deceased disclosed the name of one Jagarnathia as assailant. 6. Dr. Md. 6. Dr. Md. Habibullah PW-7, in his evidence, has stated that on 18-3-1984 he was posted as Deputy Superintendent at Araria Hospital and on that day at 2.20 p.m. held post mortem examination on the dead body of the deceased and found the following ante mortem injuries : Wound of entrance : 1 1/2" x 1" Oval hole in skin with laceration of muscle with 2 mm charred margin inverted wound anterior fold of axilla on left side of chest, passing to left under the skin and fracturing the left 4th and 5th coastal cartilages. No wound of exit found. On dissection, haematoma under the skin over the front with fracture of left 4th and 5th coastal cartilage, after middle low of left lungs. The bullet piercing through both heart and pericardium graging under the left heart fracturing 3rd and 4th coastal cartilages and passing through left pectoral muscle and imbeded under the skin of shoulder front. Whole chest cavity filled with blood. According to the doctor, the gun shot was ante mortem in nature and fired from a distance of 15 of 20 feet by a fire arm death was due to chock and haemmorhage as a result of damage of vital organ by gun shot and the time elapsed between the post mortem and death was within 24 hours. The doctor has further stated that by slip of pen he had earlier stated that firing was from a distance of 15 to 20 feet but it was corrected by his letter No. 261 mentioning that the firing was within 4 feet and the flames of fire usually travel with shots upto 12 and no charring and blackening of target is produced beyond this distance. 7. The details of injury which was found on the body of deceased as stated by the Dr. Md. Habibulla PW-7 show that deceased was badly injured and the shot which had hit his chest had caused fracture on his 4th and 5th ribs. The bullet had pierced heart and pericardium. This suggests that the deceased after receiving injury may not have been in a position to speak and therefore the evidence of Informant and other witnesses that the deceased told them the names of appellants becomes quite doubtful. The doctor in his evidence has stated that in such cases the injured can say something. This suggests that the deceased after receiving injury may not have been in a position to speak and therefore the evidence of Informant and other witnesses that the deceased told them the names of appellants becomes quite doubtful. The doctor in his evidence has stated that in such cases the injured can say something. He also means to say that injured in such condition would not be in a position to give details of the manner in which he had been injured. But here the facts are quite different. According to the case of the prosecution, deceased recieved injury and thereafter the Informant put bandage on his wound and thereafter the deceased told the Informant the names of appellants as his assailants. Thereafter the Informant managed to open the door which was bolted from outside. It must have taken some time. After it, the Informant went to the residences of the witnesses, awoke them and brought them to the place of occurrence where the deceased was lying injured and till that time the injured was in a position to speak and he disclosed the names of appellants before those witnesses. This story cannot be easily accepted and it is not free from doubt. For the sake of argument, if it is assumed that the deceased after receiving injury was in a position to speak even then case of prosecution does not seem convincing for the following reasons. It is said that the injured told the Informant that appellants inflicted injuries on him either by bomb or by firing by a fire arm. It means that he was not sure whether the appellants used a bomb or a fire arm in inflicting injuries to him. Had he seen them he must have been specific on the point of the act done by the appellants. Under this circumstance the evidence of Informant that deceased told him that appellants had inflicted injury on him either by bomb or firing does not appear to be convincing. The Informant, in his fardbeyan, has stated that deceased had told him that the appellants had inflicted injuries on him through the window. Admittedly the occurrence took place at about 11.45 p.m. in the night. The Informant, in his evidence, has also stated that at that time the deceased had flashed torch. This fact he has not mentioned in the fardbeyan and it is a subsequent development. Admittedly the occurrence took place at about 11.45 p.m. in the night. The Informant, in his evidence, has also stated that at that time the deceased had flashed torch. This fact he has not mentioned in the fardbeyan and it is a subsequent development. Assuming that the deceased had flashed a torch but that was for the purpose of removing the mosquitoes which had entered the mosquito not. There was no occasion for the deceased to point out the torch towards window because he was engaged in repelling the mosquitoes. Under this circumstance the evidence that the deceased told the Informant and other witnesses that he had seen the appellants inflicting injuries on him by a bomb or by a fire arm does not inspire confidence. The evidence of doctor that the injuries to the deceased were caused by fire arm from a distance of 4 is against the case of the prosecution because according to the Informant, the firing was made from outside the window. The Informant has admitted that when the deceased received injuries he was awake but was lying on the bed. Firing within 4 means that firing was made inside the room and had the appellants entered the room and had fired on deceased, the Informant must have seen them because the Informant in his evidence has admitted that appellants were known to him but it is not the case of the Informant that anybody had entered the room and had fired on the deceased. 8. Admittedly, in this case there is no eyewitness on the point of inflicting injury to the deceased by the appellants. The deceased alone has been projected by the prosecution as eye-witness of the occurrence who, as alleged, had disclosed the names of the appellants to the Informant and the witnesses. But for the reasons stated above, the evidence of Informant and other witnesses that the names of appellants were told to them by the deceased does not appear trustworthy and in view of this fact the conviction and sentence of appellants under Section 302/34, IPC cannot be upheld. 9. In the result, this appeal is allowed. The judgment and order of the Court below convicting and sentencing the appellants under Section 302/34, IPC is set aside. The appellants, who are on bail, are discharged from the liability of their bail bonds. R.N.Prasad, J. 10 I agree.