Judgment B.K.Jha, J. 1. This appeal has been preferred against the judgment of conViction and sentence passed on 26th March 1997 in Sessions Trial No. 794/ 89 by the learned Additional Sessions Judge. Naugachia, District - Bhagalpur. The appellant, Nagina Singh has been convicted under Secs. 302/ 109/34 of the Indian Penal Code and sentenced to rigorous imprisonment for life. The appellant, Jharo Singh has been convicted under Sec. 302 of the Indian Penal Code and sentenced to rigorous imprisonment for life. He has further been convicted under Sec. 27 of the Arms Act and sentenced to rigorous imprisonment for 2 years. The sentences awarded to the appellant. Jharo Singh have been ordered to run concurrently. 2. The occurrence took place at about 11 a.m. on 24-8-1989 in Rajwara Bahiyar of village Paschimi Gharari, P.S. Kharik, District Bhagalpur, On the alleged date the informant. Bipin Kumar Singh alias Bablu Singh, PW 5. alongwith his father. Sada Nand Singh, from 8 a.m. was getting his Kheri crops harvested by the lady labourers in his field. Rajwara Bahiyar, north to the Railway line. At about 11 a.m. the accused, Jharo Singh. Nagina Singh. Rakesh Singh with three nuts and Mushan Singh and Putali Singh with lathi and three nuts came in his field and objected to Sada Nand Singh from harvesting the Kheri crops. In the mean time, the accused, Mushan Singh; gave a lathi blow on the head of Bipin Kumar Singh alias Bablu Singh, the informant. PW 5. Thereafter, all the five accused encircled Sada Nand Singh and Nagina Singh, ordered to shoot him whereupon Jharo Singh tired from his three nuts which hit Sada Nand Singh in his abdomen and he fell down injured on the ground. Then the accused persons fled away towards eastern direction. Thereafter, Mathuri Singh, PW 4, the uncle of the informant who was present in his nearby Rasa and Bindeshwari Singh. PW 1, who was cutting grass in the nearby field arrived saw the occurrence and also the fleeing accused persons from the place of occurrence. Besides them the labourers engaged in harvesting the Kheri crops also saw the occurrence. Thereafter, Mathuri Singh, PW 4, the uncle of the informant who was present in his nearby Rasa and Bindeshwari Singh. PW 1, who was cutting grass in the nearby field arrived saw the occurrence and also the fleeing accused persons from the place of occurrence. Besides them the labourers engaged in harvesting the Kheri crops also saw the occurrence. Further case of the prosecution is that thereafter Mathuri Singh, the uncle of the informant brought a cot from his basa and while Sada Nand Singh was being removed to Telghi hospital for treatment he died on the way near the place of Mahant Baba. The motive behind the occurrence has been alleged to be the land dispute in between the -accused. Nagina Singh and the deceased Sada Nand Singh. The dead body of the deceased was left there and the informant. Bipin Kumar Singh alias Bablu Singh, PW 5. went to the police station. On the same day i.e.. 24-8-1989 at 1.30 p.m. the informant. Bipin Kumar alias Bablu Singh. PW 5. gave his jardbeyan (Ext. No. 1) before the Sub- Inspector of Police of Kharik Police Station. His jardbeyan was forwarded to the Officer Incharge of Naugachia P.S. for institution of a case. On the basis of which a formal FIR (Ext. No. 3) was drawn up and Naugachia (Kharik) P.S. Case No. 179 dated 24-8-1989 was registered against all the five accused persons under Secs. 302/34 of the Indian Penal Code and Sec. 27 of the Arms Act. The police switched over to investigation and on completion of the investigation, of the case all the five accused persons were charge sheeted for trial under Secs. 302/34. IPC and Sec. 27 of the Arms Act After observing the legal formalities they were put on trial before the learned Additional Sessions Judge. Naugachia Bhagalpur. The learned trial Judge acquitted the accused Rakesh Singh. Putali Singh of the charge under Secs. 302/34 of the Indian Penal Code and the accused Mushan Singh alias Shankar Singh of the charge under Secs. 302/34 and 323 of the Indian Penal Code framed against them. But convicted and sentenced the accused appellant? Nagina Singh and Jharo Singh, in the manner indicated above. Hence, they have preferred this appeal. 3. 302/34 of the Indian Penal Code and the accused Mushan Singh alias Shankar Singh of the charge under Secs. 302/34 and 323 of the Indian Penal Code framed against them. But convicted and sentenced the accused appellant? Nagina Singh and Jharo Singh, in the manner indicated above. Hence, they have preferred this appeal. 3. The appellants have pleaded their innocence and false implication in this case at the instance of Bindeshwari Singh, PW 1 and Mathuri Singh, PW 4 the uncles of the informant. Bipin Kumar Singh, alias Bablu Singh, PW 5. Their specific defence is that at the relevant hour of occurrence when Sada Nand Singh along with three labourers had been in the P.O. land to forcibly harvest their Kheri crops. a pistol kept by him in his waist mis-fired which hit in his abdomen and by taking the advantage of this situation this false case was launched against them. In support of their defence four witnesses have been examined. 4. At trial the prosecution examined 7 witnesses out of them. PW 1. Bindeshwari Singh and P.W 4, Mathuri Singh are own uncles and PW 2. Laddu Singh, is the cousin brother of the informant. Bipin Kumar Singh, alias Bablu Singh, PW 5. PW 3 is Md. Ayub. PW 6 is Dr. Durga Nand Mehto, who conducted autopsy on the dead body of the deceased. Sada Nand Singh and PW 7 is Chandra Nand Jha the I.O. of this case. 5. The evidence of Dr. Durga Nand Mehta. PW 6 is that he conducted postmortem examination on the dead body of Sad a Nand Singh on 25-8-1989 at 8.30 a.m. and found one circular wound of 1/2 diameter as per post mortem/report. but as per his deposition 1 and 1/2 diameter 6" below the left nipple in left hypochanctrial region 2" left to medial line of rectas surrounding area of this circular wound had some blackish spot and the bullet removed from the chest cavity in between 5th and 6th rib in the mid axiallary line in right side. Mid portion of left lobe and 2/3rd upper portion of right lobe liver ruptured. According to him the injury was ante-mortem caused by fire arm having direction from left to right side from a distance of more than 5". Mid portion of left lobe and 2/3rd upper portion of right lobe liver ruptured. According to him the injury was ante-mortem caused by fire arm having direction from left to right side from a distance of more than 5". Further according to him the death was caused by bullet injuries causing rupture of liver and ear hemorrhage and the time elapsed since death was within 22 hours. Bullet preserved sealed size 1 and 1/2" brass colour was handed over to the police. He proved the postmortem report (Ext. No. 2). 6. The post mortem examination was held on 25-8-1989 at 8.30 a.m. and the occurrence took place on 24-8-1989 at 11 a.m. Thus, the time elapsed between the death and post-mortem examination held was about 21 and 1/2 hours and according to the Doctor it was within 22 hours. Thus, the medical evidence is inconsonance with the prosecution case. 7. Out of the witnesses on facts. P.W 3. Md. Ayub is not an eye-witness to the occurrence. His evidence is that at the relevant hour of occurrence while he was in his basa in Rajwara Bahiyar, he heard the sound of firing. He went in the field of Sada Nand Singh and noticed the accused Jharo Singh. Patuli Singh. Nagina Singh and Rakesh Singh, fleeing away from there. He also saw Sada Nand Singh lying injured and learnt from him that "Hamra Nagina Ke Beta Jharua Coli Mar Delke. Hum Nathi Bachbai"... His further evidence is that on account of land dispute this occurrence took place. 8. Now, the remaining witnesses. PW 1. Bindeshwari Singh. PW 2. Laddu Singh. PW 4. Mathuri Singh and PW 5. Bipin Kumar Singh are the eyewitnesses to the occurrence. The evidence of PW 5. Bipin Kumar Singh the informant. is that on 24-8-1989, he alongwith his father was getting his Kheri crops harvested in his land situated in Rajwara Bahiyar, At about 11 a.m, the accused, Jharo Singh. Nagina Singh. Rakesh Singh with three nuts, Mush Singh and Patuli Singh with three nuts and lathi came and the accused Mushan Singh protested his father from harvesting the Kheri crops: The accused. Mushan Singh gave a lathi blow on his (the informant) forehead. Thereafter all the accused surrounded his father. Sad a Nand Singh and accused Nagina Singh exhorted to shoot him down. On his order the accused-appellant. Mushan Singh gave a lathi blow on his (the informant) forehead. Thereafter all the accused surrounded his father. Sad a Nand Singh and accused Nagina Singh exhorted to shoot him down. On his order the accused-appellant. Jharo Singh fired at him which hit in the abdomen of Sad a Nand Singh and he fell down injured on the ground and the accused persons fled away from there. Then Mathuri Singh, PW 4. who was in his adjacent Basa and Bindeshwari Singh. PW 1. who was cutting grass came at the P.O. and witnessed the occurrence. Besides them mazdoors engaged in harvesting the crops had also seen the occurrence. Mathuri Singh. PW 4, brought a cot from his Basa and while his father was being removed to Telghi Hospital for treatment. on the way- he died in Kushambar Bcrhiyar near the place of Mahant Baba. He has further stated that from there he went to the police station and lodged FIR. His Jardbeyan was recorded by S.N. Jha and he put his signature thereon (Ext. No. 1). PW 2. Laddu Singh also put his signature on the Jardbeyan. In cross examination at para 6 his evidence is that the total area of P.O. land is 9 Khatas and in the adjacent west the appellant. Nagina Singh. has also got his land measuring 9 Kathas. He has further stated that in the recent survey the P.O. land has been entered in the name of Tarni Singh, his vendor, and his father purchased the said land from him on 9-2-1982. He has further stated that he had handed over the blood stained clothes like towel, lungi and ganzi of his father to the I.O. Blood oozed out from the abdomen of his father but the injured portion was wrapped by a towel. His further evidence is that after the departure of the accused persons. Ayub. Aruna Jha. Sheikh Muslim and Sheikh Janno. had arrived at the P.O. The evidence of PW 1, Bindeshwari Singh, PW 2, Laddu Singh and PW 4. Mathuri Singh, is that on the alleged date at 11 a.m. while Sada Nand Singh was getting his Kheri crops harvested in his field, the accused, Jharo Singh, Rakesh Singh. Nagina Singh, with three nuts. Mushan Singh and Patuli Singh with three nuts and lathi arrived in that field and protested Sada Nand Singh from harvesting the Kheri crops. Mathuri Singh, is that on the alleged date at 11 a.m. while Sada Nand Singh was getting his Kheri crops harvested in his field, the accused, Jharo Singh, Rakesh Singh. Nagina Singh, with three nuts. Mushan Singh and Patuli Singh with three nuts and lathi arrived in that field and protested Sada Nand Singh from harvesting the Kheri crops. The accused, Mushan Singh, gave a lathi blow on the head of Bipin Kumar Singh, PW 5. the informant. Thereafter, all of them surrounded Sadanand Singh and the accused. Nagina Singh instigated to shoot him. On his order the accused appellant. Jharo Singh, fired at Sada Nand Singh which hit in his abdomen and all of them made good escape in the eastern direction. PW 1. Bindeshwari Singh, wrapped a towel around his injured portion and PW 4. Mathuri Singh brought a cot from his Basa. While the injured SadaNand Singh, was being removed to Telghi Hospital for treatment he died on the way near the place of Mahantha Babu in Kushmaha Bahiyar. The informant. Bipin Kumar Singh. PW 5 went to the police station from there. The further evidence of PW 1 Bindeshwari Singh and PW 2 Laddu Singh is that the accused-appellant Nagina Singh has got his land adjacent west to the disputed land purchased by Sada Nand Singh from one Tarni Singh, the cousin brother of accused-appellant. Nagina Singh. The accused-appellant Nagina Singh also claimed share in the disputed land- and hence the present occurrence. In cross-examination, PW 1, Bindeshwari Singh has stated that at the relevant hour of the occurrence he was cutting grass in Rajwara Bahiyar. The area of the land on which the occurrence of murder took place is nine kathas and in its adjacent west the appellant Nagina Singh has got his land. The total area of both the land is 18 kathas. He has further stated that the deceased Sada Nand Singh had purchased the aforesaid land from one Tarni Singh about 4/5 years prior to the occurrence. He has furnished the boundary on the aforesaid 18 kathas of the land. According to him in the north Sk. Ayub. in south the deceased Sada Nand Singh in east Mahendra Singh Jotdar and in the west Sk. Ali got their land in the boundary of the above both composite land. He has furnished the boundary on the aforesaid 18 kathas of the land. According to him in the north Sk. Ayub. in south the deceased Sada Nand Singh in east Mahendra Singh Jotdar and in the west Sk. Ali got their land in the boundary of the above both composite land. He has further stated that in the year, 1978 the appellant Nagian Singh had mortgaged the said land in favour of him (this witness) and the deceased Sada Nand Singh. His further evidence is that the police visited the P.O. on the very day of the occurrence. PW 2, Laddu Singh in his cross examination. has stated that Bablu @ Bipin Singh, the informant is his brother in relation. On the day of the occurrence at about 11 a.m. he was in his Basa situated in Rajwara, Bahiyar and the deceased Sad a Nand Singh was at a distance of 300 yards from there. The accused-appellant. Nagina Singh has also got his land near Sada Nand on the alleged date there was main crops in his land. PW 4. Mathuri Singh, in his cross examination has stated that the total area of P.O. plot is 18 lcathas and on partition it was divided in two equal parts measuring 9 lcathas each. At para 8 of his cross examination he has deposed that Amrit Singh died leaving behind four sons, Tulsi Singh. Eklal Singh. Paltu Singh and Gulab Singh. Tarni Singh was the son of Gulab Singh and appellant. Nagina Singh, is the son of Paltu Singh, Tarni Singh and the appellant Nagina Singh happened to be the cousin brothers. He has further stated in his cross examination at para 9 that in the year. 1978 the appellant Nagina Singh had mortgaged the P.O. land to Tarni Singh, Bindeshwari Sirgh PW 1 and the deceased Sadanand Singh. 9. PW 7, Chandra Nand Jha, is the investigating officer of this case. He has proved formal FIR (Ext. 3) and fardbeyan (Ext. Ill). His evidence is that after recording the fardbeyan he switched over for investigation and visited the P.O. on the same day situated at Rajwara Bahiyar. There was Kheri crop in the P.O. land and a portion of which was found harvested from the western side. He has proved formal FIR (Ext. 3) and fardbeyan (Ext. Ill). His evidence is that after recording the fardbeyan he switched over for investigation and visited the P.O. on the same day situated at Rajwara Bahiyar. There was Kheri crop in the P.O. land and a portion of which was found harvested from the western side. Be found blood there and prepared inquest report of the deceased Sada Nand Singh in presence of the witnesses Bhabisya Kumar Singh and Oilip Kumar Singh. He found the dead body submerged with blood and sent the dead body for post mortem examination. He examined the witness and submitted charge sheet. In cross examination he has stated that while he was on way to the place of occurrence he also visited Kushmaha Bahiyar found the blood stained napkin. Lungi and towel. This witness failed to recollect about seizure of bloodstained clothes of the deceased. 10. On the other hand four defence witnesses have been examined. They are Diwakar Choudhary, DW 1, /Md. Salim. DW 2. Vilakshan Thakur. DW 3 and Hart Nath Malakar, DW 4., DW 1, Oiwakar Choudhary, has proved the signature of the appellant Nagina Singh on the mortgaged deed executed by him In the year 1982 in favour of Mahesh Jha (Ext. A). In cross-examination his evidence is that Mahesh Jha got the said mortgaged deed executed in his presence. The evidence of DW 2. Md. Salim, is that at the relevant hour of the occurrence he was fitting grass in his field in Musha Mauja situated adjacent south to the field of appellant Nagina Singh. At about 10 a.m. Sada Nand Singh along with three labourers came and uttered for having forceful possession of the P.O. land in question. He alongwith the labourers started harvesting kheri crops in course of which a revolver kept in his waist misfired and hit in the left side of his abdomen. He became injured. He with the help of the labourer wrapped his injured portion from which blood .started oozing out. Sada Nand Singh became unconscious. About 10 - 15 persons including Laddu Singh came and removed Sadanand Singh to the hospital for treatment. He became injured. He with the help of the labourer wrapped his injured portion from which blood .started oozing out. Sada Nand Singh became unconscious. About 10 - 15 persons including Laddu Singh came and removed Sadanand Singh to the hospital for treatment. He, further stated that the entire 18 kathas of the land has been in possession of the appellant Nagina Singh and the said land never came in the cultivating possession of the deceased Sada Nand Singh DW 3 Bilakshan Thakur has deposed that in his presence the appellant Nagina Singh got the mortgaged deed redeemed on 21-5-1981 on payment of Rs. 1.000.00 to Bindeshwari Singh. PW 1 and the deceased. Sada Nand Singh and they put their signature thereon. DW 4. Hari Nath Malakar has proved the signature of Rameshwar Choudhary scriber of mortgaged deed executed by the appellant Nagina Singh in. favour of the deceased Sada Nand Singh and Bindeshwari Singh. PW 1. on 20-7-1978 (Ext. B). In cross examination he has stated that the deed was executed in his presence. 11. After hearing the learned counsel for the parties and the perusal of the evidence on record I feel that the case of the prosecution is. failing on account of the following grounds: (i) The prosecution had not filed any document of the purchase of the P.O. land. It has come in the evidence of the informant Bipin Kumar Singh. PW 5 that on 9-2-1982 the deceased Sadanand Singh had purchased the P.O. land measuring 9 kat has from one Tarni Singh and adjacent west to the P.O. land 9 kathas of the land belongs to the appellant Nagina Singh cousin brother of Tarni Singh. PW 1. Bindeshwari Singh, and PW 2. Laddu Singh have also the aforesaid factum of the purchase of the P.O. land by the deceased Sada Nand Singh from one Tarni Singh. According to them the appellant Nagina Singh also claimed the P.O. land and hence the occurrence. The I.O. Chandra Nand the PW 7 visited the P.O. on the same day but he failed to prepare any sketch map to establish the place of occurrence On the other hand the defence had filed the documents to show that the occurrence took place on the land bearing khata No. 411. Plot No. 277 having total an area of 75 decimals. Plot No. 277 having total an area of 75 decimals. In its support two mortgaged deeds and khatiyan were brought on record by the defence. In khatiyan (Ext. B) khata No. 411. Plot No. 2277 measuring 75 decimals have been shown in the possession of the appellant Ram Nagina Singh. The evidence of DW 3. Bilakshan. Thakur. indicates that the appellant Nagina Singh mortgaged the said land to the deceased. Sadanand Singh, and Bindeshwari Singh. PW 1 on 20-7-1978 for Rs. 1.000/ and redeemed on 21-5-1981. The deceased Sada Nand Singh and Bindeshwari Singh, PW 1. signed the documents contained in Exts. All and A/2. PW 1 Bindeshwari Singh at Para 6 of his cross-examination had admitted the execution of the mortgaged deed of the P.O. land by the appellant Nagina Singh in favour of him and the deceased. Sada Nand Singh. The evidence of DW 1. Diwakar Choudhary further indicates that on 4-3-1982 the appellant Nagina Singh again mortgaged the said land to one Mahesh the and proved his signature (Ext. A). In spite of the claim of the purchase of the P.O. land by the deceased. Sada Nand Singh no such document has been filed by the prosecution. It may be pointed out here that Khatiyan (Ext. B) and the signatures of the deceased. Sada Nand Singh (Ext. All) and Bindeshwari Singh, PW 1. (Ext. A/2) on the mortgaged deeds were not considered by the trial Judge because they remained unsigned by the presiding officer but in my opinion, it was mere irregularity and not illegality. The trial Court committed an error of record by not considering those documents. Thus, it is established -that on the alleged date of occurrence the alleged plot was owned and possessed by the deceased. Sada Nand Singh. (ii) On coming to the occular evidence I find that PW 1. Bindeshwari Singh. PW 2. Laddu Singh, and PW 5. Bipin Kumar Singh, the informant, have claimed to be the eye-witnesses to the occurrence. The evidence of PW 5. Bipin Kumar Singh, the informant, is that his uncles Mathuri Singh. PW 4. who was present at near by his Basa and Bindeshwari Singh. PW 1. who was cutting grass in near by the field arrived at the P.O. and saw the occurrence. Several labourers present there also witnessed the occurrence but he failed to name any of them. Bipin Kumar Singh, the informant, is that his uncles Mathuri Singh. PW 4. who was present at near by his Basa and Bindeshwari Singh. PW 1. who was cutting grass in near by the field arrived at the P.O. and saw the occurrence. Several labourers present there also witnessed the occurrence but he failed to name any of them. His further evidence is that the place of occurrence was surrounded from all sides by maize crops. The evidence of PW 1. Bindeshwari Singh, is that at the relevant hour of the occurrence he was cutting grass at a distance of about 10 yards from the place of occurrence and he remained standing there. He has specifically stated at para 8 of his cross - examination that he did not move from the grass cutting place. The evidence of PW 2, Laddu Singh is that on the alleged date of the occurrence at 11 a.m. he was at his Basa and Sada Nand Singh was at a distance of 300 yards from his Basa. The evidence of PW 4. Mathuri Singh is that he concealed himself in a Rahar Field and saw the occurrence from a distance of 15 steps. At paragraph 6 of his crossexamination he stated that his eye sight has became hazy since the month of the last Kartic. Thus it appears from the plain reading of the evidence of PW 1. Bindeshwari Singh. PW 2. Laddu Singh, and PW 4. Mathuri Singh, that they had arrived at the place of occurrence after the departure of the accused appellants from there and had not seen the actual occurrence. This sort of finding finds corroboration from the evidence of PW 3, Md. Ayub. The evidence of PW 3, Md. Ayub, is that on the day of the occurrence while he was at his Basa situated at a distance of 200 yards from the place of occurrence he heard sound of firing. On hearing the sound of firing he rushed towards the field of the deceased. Sada Nand Singh. He saw the accused persons fleeing away from the place of occurrence and also saw PW 1, Bindeshwari Singh, PW 4. Mathuri Singh, and PW 5, Bipin Kumar Singh, the informant, going towards the place of occurrence. (iii) Further it has come in the evidence of the informant. Bipin Kumar Singh, that after the departure of the accused persons witnesses, Md. Mathuri Singh, and PW 5, Bipin Kumar Singh, the informant, going towards the place of occurrence. (iii) Further it has come in the evidence of the informant. Bipin Kumar Singh, that after the departure of the accused persons witnesses, Md. Ayub, Arun Jha. Sk. Muslim and Sk. Gannu arrived at the P.O. but none of them except Md. Ayub was produced and examined. The prosecution has only examined the closely related witnesses the brothers of the deceased, Sada Nand Singh and cousin bf the informant who have given parrot like tutored statements. Their evidence gives on assurance about the false implication of the appellants in this case on account of the land dispute. 12. On appreciation of the entire materials on record, above discrepancies and the circumstances. I am satisfied that the prosecution has failed to prove beyond all reasonable doubts that the appellants were responsible for the commission of the murder of Sada Nand Singh the father of the informant. Bipin Kumar Singh. 13. In the result, I allow this appeal, set-aside the judgment of conviction and sentence passed by the Addl. District and Sessions Judge, Naugachia, and acquit both the appellants. The appellant Jharo Singh who is in custody set at liberty immediately. If not required in any other case. The appellant Nagina Singh is on bail, so he is discharged from the liability of his bail bond. A.K.Sinha, J. 14 I agree.