Judgment M. L. VISA, J. 1. Both these appeals have been heard together and are being disposed of by this common judgment as both arise out of the same judgment and order dated 10th April, 1995 passed in Sessions Trial No. 212/1991/139/1994 by 6th Additional Sessions Judge, Begusarai convicting and sentencing the appellant Mansoor Ansari to undergo life imprisonment under Sec. 302, IPC and RI for 7 years under Sec. 27 of Arms Act and appellant Shanker Sahni to undergo life imprisonment under Sec. 302/34, IPC. The sentences passed against appellant Mansoor Ansari have been ordered to run concurrently. 2. The case of prosecution in short is that on 13-7-90 the informant Md. Arshad Ali (PW 9) along with his family had gone to his sasural at Village Sujanpur P. S. Garhpura within the district of Begusarai to attend the marriage of his brother-in-law Md. Samad Ansari and since then he was there. On 5-8-90 after taking meal he and his brother-in-law Md. Samad Ansari were sitting on a chowki in the eastern room of the house. At about 2.45 p.m. appellant Shanker Sahni carrying a country made pistol came there and sat on the chair. The informant made comment that what he had brought with him. In the meantime appellant Mansoor Ansari armed with a country made pistol came there and he shot at Md. Samad Ansari hitting on right side of his chest who instantaneously died there. The informant raised alarm on which Noor Mohammad (PW 1), Kalimuddin (PW 2), Abdul Aziz Ansarai (not examined) and others came there, who all saw both the appellants running away. In the process of hurriedly running away appellant Shanker Sahni got a jerk from the flank of door and the country made pistol which he was carrying dropped at the door of the house. Appellant Shanker Sahni after chase by villagers was caught. A.S.I. Shidheshwar Prasad Yadav (PW 10) who at that time was posted at Garhpura Police Station, after hearing the rumours about the murder reached the house of sasural of informant on the same day at about 3.30 p.m. and recorded the fardbeyan (Ext. 3) of the informant on the basis of which a formal F.I.R. (Ext. 4) was drawn. PW 10 took up the investigation and he prepared an inquest report (Ext. 5) of the dead body of the deceased and inspected the place of occurrence. 3) of the informant on the basis of which a formal F.I.R. (Ext. 4) was drawn. PW 10 took up the investigation and he prepared an inquest report (Ext. 5) of the dead body of the deceased and inspected the place of occurrence. He seized a country made pistol (Mat. Ext. I), a 12 bore cartridge (Mat. Ext. II), front portion of 303 pellet (Mat. Ext. II/I) and a blood stained bed sheet (Mat. Ext. III) which were found at the place of occurrence and prepared seizure lists (Exts. 6 and 6/1). He recorded the statements of witnesses and made over the charge of investigation to S. I. Nand Lal Choudhary (PW 11), who after completing the investigation submitted charge sheet against both the appellants. After commitment of the case to the Court of Session charges under Sec. 302, IPC and under Sec. 27 of Arms Act were framed against appellant Mansoor Alam and charge under Sec. 302/34, IPC was framed against appellant Shanker Sahni and both the appellants were put on trial. The defence of appellants before the Court below, as it appears from two defence witnesses on their behalf and from the trend of cross-examination, was that the informant himself committed murder of the deceased in order to grab the property of his in-laws and at the time of occurrence appellant Shanker Sahni was fishing in a pond when at 3.30-4.00 p.m. Aajoo Mian cousin of Jasruddin (PW 5) along with 10-20 persons came there and caught appellant Shanker Sahni and after assaulting him took him away towards village. After the trial Court below found both the appellants guilty and accordingly, convicted and sentenced them as indicated above. 3. Altogether 12 witnesses were examined on behalf of prosecution. MD. Arshad Ali (PW 9) is the informant and is the only eye witness to the occurrence. Dr. P. N. Singh (PW 8) had conducted autopsy on the dead body of the deceased. Shidheshwar Prasad Yadav (PW 10) is the Police Officer who had recorded the fardbeyan of informant at the place of occurrence and had seized blood stained bed sheet, a country made pistol, cartridges etc. from the place of occurrence and had recorded the statements of witnesses. Shidheshwar Prasad Yadav (PW 10) is the Police Officer who had recorded the fardbeyan of informant at the place of occurrence and had seized blood stained bed sheet, a country made pistol, cartridges etc. from the place of occurrence and had recorded the statements of witnesses. Nand Lal Choudhary (PW 11) is the Police Officer who after receiving the charge of investigation from PW 10 and after collecting the post-mortem examination report, report of ballistic expert and sanction from the District Magistrate for prosecution under Sec. 25(a) of Arms Act had submitted the charge sheet. Md. Kiyamuddin Ansari (PW 7) is a witness in whose presence the I.O. had prepared inquest report of the deadbody of deceased on which this witness and another witness namely, Ram Bilash Choudhary (not examined) had put their signatures (Exts. 1/2 and 1/3). Md. Jamiruddin Amin (PW 5) is the father of deceased, who on the day of occurrence at about 5.00 p.m. returned to his house from Begusarai and he was informed by the informant and others about the murder of his son by the appellants. Noor Mohammad (PW 1), Md. Kalim (PW 2), Md. Sadik alias Md. Sabir (PW 3), Naziruddin (PW 4) and Jai Nav Begum (PW 6), the mother of deceased, are the witnesses who had reached the place of occurrence after hearing the sound of firing and had seen both the appellants running away from the place of occurrence. Tribhuwan Prasad Singh (PW 12), who at the relevant time was posted as sergeant Major has examined a country made pistol, a 12 bore cartridge and front portion of pellet seized from the place of occurrence. 4. Dr. P. N. Singh (PW 8) in his evidence has stated that on 6-8-90 at 9.15 a.m. he held post-mortem examination on the dead body of the deceased Md. Samad Ansari and found the following ante-mortem injuries : wound of entry 1/2" x diameter with inverted margine at the level of left lower angle of scapular on the back side of chest. Samad Ansari and found the following ante-mortem injuries : wound of entry 1/2" x diameter with inverted margine at the level of left lower angle of scapular on the back side of chest. On the dissection, there was fracture of 7th and 8th ribs and the wound passed upward and lacerating the upper portion of the left lung and damaging the upper part of the heart passed interiarly and damaging the upper of the right lung and coming out with 2" in diameter with everted margin and level of 3rd intercostal space by damaging the 3rd rib in mid calaviculariline i.e., wound of exit. According to him the cause of death was shock and haemorrhage due to above injuries which were caused by fire arm and the injuries were sufficient to cause death in ordinary course of nature. The time elapsed since death, according to him, was within 24 hours. He has proved the post mortem examination report (Ext. 2). The evidence of this witness proves that the cause of death of deceased was an injury caused by a fire arm and the death was homicidal. 5. MD. Arshad Ali (PW 9), the informant in his evidence, has stated that on 5-8-90 he and deceased after taking meal were sitting in a room in the house of deceased. He was sitting on a chowki and deceased was sitting on a table. At about 2.45 p.m. appellant Shankar Sahni armed with a pistol came into his room and sat on the chair. The informant passed a remark why had he brought such article. In the meantime appellant Mansoor Ansari armed with a pistol came there and he fired at the deceased hitting on the right side of his chest and the bullet after passing through left shoulder of deceased struck against the wall and fell. He raised hulla. On hulla both the appellants fled and in process of fleeing away the flank of door struck the appellant Shankar Sahni as a result of which his pistol fell there. Appellant Shankar Sahni fled away leaving his pistol there. The informant raising the alarm came to the gate of boundary wall of his house and saw that Md. Kalim (PW 2), Md. Sadik alias Md. Sabir (PW 3) and others were chasing the appellants. He started weeping. His brother-in-law Md. Samed Ansari died after receiving the shot. Appellant Shankar Sahni fled away leaving his pistol there. The informant raising the alarm came to the gate of boundary wall of his house and saw that Md. Kalim (PW 2), Md. Sadik alias Md. Sabir (PW 3) and others were chasing the appellants. He started weeping. His brother-in-law Md. Samed Ansari died after receiving the shot. At about 3.30 p.m. the police came and recorded his fardbeyan (Ext. 3). It was read over to him and he put his signature (Ext. 1) on it. In cross-examination he has stated that appellant Mansoor Ansarai never visited his sasural and he had never seen him before the occurrence. Admittedly, this witness was in his sasural where the occurrence is said to have taken place. His evidence that appellant Mansoor Ansari was not known to him at all and he had not even seen him before makes his evidence that appellant Mansoor Ansari armed with a pistol came and fired at deceased quite doubtful. It is not the case of prosecution that name of appellant Mansoor Ansari was disclosed to this witness by anybody else. He is the only witness to the occurrence but then his admission that appellant Mansoor Ansari was not known to him from before does not explain the circumstance under which he named appellant Mansoor Ansari in his fardbeyan as well as in his evidence as the main assailant of the deceased. 6. Noor Mohammad (PW 1), MD. Kalim (PW 2), Md. Sadik alias Md. Sabir (PW 3) and Jainab Begum (PW 6) have stated that after the occurrence they had seen both the appellants running away from the place of occurrence. PW 1 and PW 2 have said that at the time of occurrence they were in their respective houses when they heard the sound of firing and they went towards place of occurrence. PW 3 has said that he was crossing the road and when he reached thehouse of deceased he heard the sound of firing and PW 6, who is mother of the deceased, has said that at the time of occurrence she was sitting in her house. PW 1 has stated that he saw both the appellants running away towards east and appellant Mansoor Ansari was armed with a pistol who asked him to go away and further said that he had already killed one man and he will kill others also. PW 1 has stated that he saw both the appellants running away towards east and appellant Mansoor Ansari was armed with a pistol who asked him to go away and further said that he had already killed one man and he will kill others also. PW 2 has said that both the appellants were coming out from the house of deceased, appellant Mansoor Ansarai was armed with a pistol and both the appellants said that they had already killed one man and they will kill others also. From the evidence of PW 1 and PW 2 it is not clear that at which place the appellants had given them threatening because PW 1 has said that both the appellants were running away towards east whereas PW 2 has said that both the appellants were coming out from the house of deceased. PW 2 in his cross-examination contradicting his statements that he found both the appellants coming out from the darwaja of the house of deceased has stated that after hearing the sound of firing he did not go to the darwaja of the house of the deceased and even at any time on the date of occurrence he did not go to the darwaja of the house of the deceased. PW 3 has also said that he found both the appellants coming out from the gate of the house of the deceased and appellant Mansoor Ansari, who was armed with a pistol, had given him threatening saying that he had already killed a man and he will kill two more and when he wanted to catch hold of him he was pushed and he then raised alarm. In his cross-examination he has stated that when he saw the appellants he alone was there. This evidence makes the evidence of PW 2 that he also saw both the appellants coming out from darwaja of the house of the deceased doubtful. Besides this, the I.O. (PW 10) in his evidence has stated that PW 1 and PW 3 had not stated before him that they after hearing the sound of firing had gone to the place of occurrence. Jainab Begum (PW 6), the mother of deceased has stated that at the time of occurrence she was sitting in osara of her house since two hours. Jainab Begum (PW 6), the mother of deceased has stated that at the time of occurrence she was sitting in osara of her house since two hours. The I.O. (PW 10) has stated that the house of deceased consists of three rooms situate towards west and the occurrence had taken place in the northern room of the house and there were two rooms adjacent south to this room and there is a verandah in front of this room and after verandah there is an aangan (courtyard) surrounded from all sides by wall having entrance in north. If PW 6 was sitting in her osara since two hours from the time of occurrence she must have seen the appellants entering her house but she has not said so. According to her when she saw first the appellants they were running away towards gate of her house. So the evidence of these witnesses does not inspire confidence that they had seen the appellants running away from the place of occurrence after the occurrence. 7. The case of prosecution is that after chase appellant Shankar Sahni was caught. Md. Kalim (PW 2) and Md. Sadik alias Md. Sabir (PW 3) have stated that the appellants were chased and appellant Shankar Sahni was caught. They both have said that about 50-60 persons had chased the appellants. PW 2 has said that after chase appellant Shankar Sahni was caught and he was brought to the darwaja of the deceased and was handed over to police but in his cross-examination has said on the day of occurrence he never went to the darwaja of the deceased. He has further stated that for continuous two hours the appellants were chased up to about one mile. The I.O. in his evidence has said that PW 3 had not stated before him that appellant Shankar Sahni was caught and was brought to the darwaja of the deceased. The evidence of PW 2 and PW 3 that before they started chasing the appellants the appellants had given them threatening that they had already killed one man and they would kill them seems quite improbable because if the appellants, as alleged, after occurrence were trying to escape they must have been in hurry and they would not have time to give threatening to the witnesses. The I.O. (PW 10) in his evidence has stated that he himself had chased appellant Shankar Sahni and had caught him. Although he has amended this statement subsequently by stating that the villagers had apprehended appellant Shankar Sahni and had handed over to him in his custody but this amendment is made on a subsequent day when his further cross-examination was resumed. So on the point of apprehension of appellant Shankar Sahni after chase also the case of prosecution becomes quite doubtful. Considering the evidence of witnesses who have stated that they had seen the appellants running awayfrom the place of occurrence we find that their evidence is not consistent and suffers from material contradictions. 8. PW 1, PW 5, father of deceased and PW 6, mother of deceased have stated that the informant had told them that about the occurrence. PW 1 has stated that informant told him that appellant Mansoor Ansari after killing the deceased had fled away whereas PW 5 and PW 6 have said that informant told them that both the appellants after killing the deceased had fled away.The I.O. (PW 10) in his evidence has stated that PW 5 and PW 6 had not stated before him that the informant told that the appellants had killed the deceased. So the case of prosecution that after the occurrence the informant disclosed the name of two appellants also does not find support from the evidence of I.O. Moreover when the informant himself was not knowing appellant Mansoor Ansari from before it seems peculiar how he could have told the name of this appellant to other prosecution witnesses. 9. About the remaining witnesses, PW 4 has simply stated that he had seen the dead body of deceased lying in a pool of blood and appellant Mansoor Ansari had given him threatening that he would finish the family of father of deceased. PW 7 is the witness on inquest report andd PW 12 has said that he examined a country made pistol and a 12 bore cartridge and found that the pistol was effective and cartridge was live and he also examined a fired 303 pellet but then that fired pellet cannot be fitted in a 12 bore country made pistol. PW 7 is the witness on inquest report andd PW 12 has said that he examined a country made pistol and a 12 bore cartridge and found that the pistol was effective and cartridge was live and he also examined a fired 303 pellet but then that fired pellet cannot be fitted in a 12 bore country made pistol. According to the prosecution appellant Shankar Sahni was carrying this pistol, which was examined by this witness, at the time of occurrence and which had fallen down at the place of occurrence when appellant Shankar Sahni got a push from the flank of door in the process of his running away. PW 12 has stated that country made pistol which he examined was fired but he has not given the exact time of firing from this pistol. It is not the case of prosecution that by this country made pistol the deceased was shot. 10. The informant (PW 9) in his fardbeyan as well as in his evidence has stated that when appellant Mansoor Ansari fired the shot it hit the right side of the chest of the deceased and passing through the body came out from the right shoulder of the deceased, but this fact is not supported by the medical evidence because Dr. P. N. Singh (PW 8), who held autopsy on the dead body of the deceased, has said that firing was from back side. The informant in his evidence has stated that at the time of occurrence he was sitting on a chowki which was placed adjacent to northern wall of room in east-west direction and 1 cubic from this chowki towards south there was a table and the deceased was sitting on that table and the room was having an entrance door towards east. The size of room in which the deceased and he were sitting was 12 x 9. In these circumstances, if the appellant Mansoor Ansari had fired from the door of the room as stated by informant there was no possibility of hitting the shot at the back of deceased. Again there is contradiction on the place where the decased was sitting at the time of occurrence. In these circumstances, if the appellant Mansoor Ansari had fired from the door of the room as stated by informant there was no possibility of hitting the shot at the back of deceased. Again there is contradiction on the place where the decased was sitting at the time of occurrence. In the Fardbeyan the informant has stated that he and deceased both were sitting on the chowki but in his evidence he has stated that he was sitting on a chowki and the deceased was sitting on a table. So we find that the manner of occurrence has also not been proved satisfactorily and it is full of doubts. No doubt, the I.O. (PW 10) found a country made pistol, a live cartride and a fired pellet along with dead body from the place of occurrence but then this is not sufficient to prove the charge against the appellants. As stated above the evidence of informant, who is the solitary eye witness to the occurrence, that appellant Mansoor Ansari fired from his pistol resulting into the death of the decesed is not acceptable, because his own admission is that appellant Mansoor Ansari was not known to him before the occurrence and the evidence of other witnesses, who have claimed to have simply seen the appellants running away from the place of occurrence, is also not convincing and trustworthy. We therefore find that the prosecution has not been able to prove its case against the appellants beyond all reasonable doubts. 11. In the result, both the appeals are allowed and the order and judgment of the Court below convicting and sentencing the appellants is hereby set aside. Appellant Shankar Sahni, who is on bail, is discharged from the liability of his bail bonds. Appellant Mansoor Ansari who is in jail, is ordered tobe released forthwith, if not required in any other case. 12. B. P. SHARMA, J. :- I agree.Appeals allowed.