Judgment M.L.Visa, J. 1. This appellant by sole appellant Shankar Sigh is directed against the judgment and order dated 20-6-1987 passed by Xth Additional Sessions Judge Munger in Session Case No. 6 of 1984 convicting and sentencing appellant to undergo rigorous imprisonment for life under Sec. 302. Indian Penal code (in shot IPC) and rigorous imprisonment for three years u/s. 27. Arms Act. Both the sentences have been ordered to run concurrently. 2. The case of the prosecution as stated in the FIR (Exhibit-3), is that on 16-6-1985 at about 5 p.m. an altercation took place between the appellant and Ramakant Singh (PW9). The appellant, in course of altercation, went to his house and brought a rifle and ran to assault Ramakant Singh. Deceased Lallan Singh, nephew of informant Madan Singh (PW 5), who was standing there, ran to catch hold of appellant in order to save Ramakant Singh but appellant fired at him from his rifle causing injuries on his, chest. Lallan Singh after receiving injuries, fell down and blood started oozing out from his injuries. Informant and others took injured Lallan Singh to village Barhaiya where he was given first aid by Dr. Ram Awadhesh Singh who advised informant and others to take Lallan Singh to Patna because his condition was serious. While Lallan Singh was being taken to Patna, on a hired vehicle, he succumbed to injuries in the way. The dead body of Lallan Singh was brought to Barhaiya Police Station where informant lodged an FIR on 17-6-1985 at about 4.15 a.m. 3. It appears that Birendra Mahto (PW 7) on 16-6-1985 at about 17.30 hours, when he was posted as Incharge of Pipariya Police Outpost within Barhaiya Police Station, received an information that one person had received firearm injuries at Malpur village and family member of infllred bad taken the injured to Barhaiya hospital. After recording this information in station diary, he alongwith armed forces proceeded for village Malpur and he reached there at 18.00 hours where he recorded the jardbeyan of Dewa Devi (PW 11), in her jardbeyan (Exhibit-5). Dewa Devi stated that on the same day in the evening, the mother of Ramakant Singh and mother of appellant were quarreling with each other regarding the property of Most. Dewa Devi stated that on the same day in the evening, the mother of Ramakant Singh and mother of appellant were quarreling with each other regarding the property of Most. Ramsahki Devi and she, on hearing huzza, came out of her house and pacified the matter but sometime thereafter, mother of Ramakant Singh and mother of appellant again started quarreling with each other and on hearing hulla, she again came there and by that time, her grandson Lallan Singh had also reached there who was simply watching the quarrel. Thereafter, the appellant brought a gun from his house and fired at Lallan Singh who, after receiving injuries, fell down. The villagers took Lallan Singh on a cot to Barhaiya for treatment and appellant fled away. She further stated that during the scuffle, the appellant and his mother assaulted the mother of Ramakant Singh with fists and two days prior to this also, they both ~ad assaulted the mother of Ramakant Singh with fists. On the day of occurrence, the mother of Ramakant Singh, who was sitting on a cot after assault by appellant and his mother, fell down and died but Dewa Devi was not sure whether she died on account of assault or because of heart failure. Birendra Mahto sent the jardbeyan of Dewa Devi to Barhaiya Police Station for lodging FIR and inspected the place of occurrence. He also prepared inquest report of the dead body of Mahadevi, mother of Ramakant Singh but because on 16-6-1985, by the time he prepared the inquest report, it was night therefore, to the next day, that is on 17-6-1985, he sent the dead body of Mahadevi to Munger Sardar Hospital through Constable Ramashwar Mahto and Chaukidar Bachchu Mahto for post mortem. On 17-6-1985, Md. Hasnain PW 14, the then Officer-in- Charge of Barhaiya Police Station came to place of occurrence and informed Birendra Mahto that he had already taken up the investigation. On this information, Birendra Mahto left the investigation and entrusted the matter to Md. Hasnain. The Police, after investigation, submitted charge sheet under Sections 302/34, IPC and Sec. 27, Arms Act against the appellant and Dayarani Devi, the mother of appellant. 4. After taking the cognizance, case was committed to the Court of Session where charges under Sec. 304, IPC, were framed against the appellant and his mother Dayarani Devi. Hasnain. The Police, after investigation, submitted charge sheet under Sections 302/34, IPC and Sec. 27, Arms Act against the appellant and Dayarani Devi, the mother of appellant. 4. After taking the cognizance, case was committed to the Court of Session where charges under Sec. 304, IPC, were framed against the appellant and his mother Dayarani Devi. The appellant-was further charged under Sec. 302, IPC and Sec. 27, Armi, Act. The appellant and his mother were put on trial, and after trial, appellant and his mother were found not guilty under Sec. 304, IPC and they both were acquitted of the charge. But appellant was found guilty under Sec. 302, IPC and Sec. 27, Arms Act and, accordingly, he was convicted and sentenced to undergo rigorous imprisonment for life under Sec. 302, IPC and rigorous imprisonment for three years under Section 27, Arms Act. Both the sentences were, however, ordered to run concurrently. 5. The case of the appellant is that he has been falsely implicated in this case. 6. In order to prove its case, prosecution examined 14 witnesses, Madan Singh (PW 5), is informant. Dharmedra Kumar Sinha (PW1) is the doctor who had conducted post mortem examination on the dead body of Mahadevi. Dr. Aftab Faiz (PW13) is a doctor who had conducted post mortem examination on the dead body of Lallan Singh. Md. Hasanain (PW 14) is the investigating Officer. Birendra Mahto (PW7) is the Police Officer who had recorded the fardbeyan of Deva Devi. Banbari Singh (PW2). Badri Prasad Singh (PW3). Ram Charitra Singh (PW4). Ram Sagar Singh (PW10) and Vakil Singh (PW 12) have been declared hostile by the prosecution because they have not supported the case of the prosecution. Mohan Sharma (PW6). Ram Gulam Singh (PW8). Ramakant Singh (PW9) and Deva Devi (PW11) are witnesses who have deposed about the occurrence. 7. Dr. Aftab Faiz (PW13), in his evidence, has stated that on 17-6-1985, he was posted as Civil Assistant Surgeon at Sardar Hospital. Munger and on that date at about 2 p.m. he performed the post mortem examination on the dead body of Lallan Singh and found the following ante mortem injuries: (1) 1/2" diametre injury with inverted margin and lacerated wound in the posterior axillary line on right side at the level of 9th inter coasted space which was cavity deep. The surface around the injury was charred. The surface around the injury was charred. There was visible charring of the posterior surface of the right arm and this injury was caused by some Firearm weapon, and (2) 3/4" x 1" oval lacerated wound with inverted margin on the left side posteriorily at the posterior axillary line at the level of 8th inter-coasted space. This injury was also cavity deep. He has, further, stated that on dissection of injuries No. (1) an (2) and abdomen. there was laceration of right lobe of liver laterally at its visceral and media stinal surface. The left lung was also lacerated with wounds on the media-stinal and visceral surface. All the injuries were communicating and death was caused due to shock and heamorrhage especially due to the injuries to the liver and lung and time elapsed since death was 24 hours. In his opinion, all injuries were ante mortem in nature and were possible by rifle. He has proved his post mortem examination (Exhibit-7). 8. Madan Singh (PW5), in his evidence, has stated that on 16-6-1985 at about 4-5 p.m. he was standing near a tree and saw that Ramakant and appellant were quarreling with each other regarding land and in the meantime, he heard sound and people started saying that appellant had fired and Lallan Singh had received firearm injuries and, thereafter, he and others proceeded to Barhaiya hospital taking the deceased Lallan Singh and at Barhaiya hospital. Dr. Ram Awadhesh Singh advised to take the deceased to Patna and while the deceased was being taken to Patna, he died in the way then he and other took the dead body to Barhaiya and he lodged the FIR. He has proved the FIR (Exhibit-3) and has stated that Mohan Sharma (PW 6) and Ram Sagar Singh (PW 10) also put their signatures on the FIR. He has also been declared hostile by the prosecution because he had not stated that it was appellant who fired at the deceased. Mohan Sliarma (PW 6), in his evidence, has stated that he does not know about the occurrence and at the time of occurrence, he was not at the village although he has proved his signature (Exhibit-4) on FIR and his signature Exhibit 4/1) on inquest report but he has stated that in village, he heard that appellant had committed murder of deceased Lallan Singh. In Crossexamination, he has stated that he had- put the signatures on blank paper and at the time of putting his signatures, nothing was written on the paper on which he put his signatures and he does not remember who told him that appellant had committed murder of deceased Lallan Singh, Birendra Mahto (PW7) in his evidence has stated that on 16-6-1985, he was posted as Incharge at Pipariya Police Outpost, within Barhaiya police Station and on that day at 17.3.0 hours, he received information that in Malpur village, one man had received firearm injuries from an another man and injured had been taken to Barhaiya hospital. He then after recording this information in station diary, proceeded to Malpur village alongwith armed force where he reached at 18.00 hours and there he recorded the jardbeyan (Exhibit-5) of Deva Devi and sent the same to Barhaiya Police Station for lodging the FIR and inspected the place of occurrence. He has stated that he prepared inquest report (Exhibit-6) of the dead body of Mahadevi and because on that day, it had become dark owing to night and there was no arrangement for any vehicle, therefore, he sent the dead body of Mahadevi on the next day at about 8 a.m. to Munger Sardar Hospital for post mortem and on the next day. Md. Hasnain (PW 14) came and informed him that he had already taken the investigation of the case and, thereafter, he left investigation and entrusted the matter to Md. Hasnain. Ram Gulam Singh, (PW 8) has stated that on the day of occurrence, he had gone to field for bringing vegetable where he heard huzza that appellant had shot the deceased and, thereafter, he came to village and found the deceased in injured condition lying unconscious and blood was oozing out from his injures and huzza was being made there that appellant had fired at deceased and, thereafter, deceased was taken to hospital. In cross-examination, he has said that all the villagers were saying that appellant had fired at deceased but he does not remember the name of any particular person who gave this information to him. 9. Ramakant Singh (PW 9) has said that on the day of occurrence he was at Barhaiya and when he returned to his house, he heard that appellant had fired at deceased and did not hear anything else. 9. Ramakant Singh (PW 9) has said that on the day of occurrence he was at Barhaiya and when he returned to his house, he heard that appellant had fired at deceased and did not hear anything else. He has said that Mahadevi was his mother, who is dead now, and he further stated that she died of heart failure and a quarrel took place between his mother and the mother of appellant and both assaulted each other and in that quarrel, his mother died. He has further stated that when deceased Lallan Singh went to pacify the matter between the mother of appellant and his mother, appellant fired at him. In cross-examination, he has stated that occurrence did not take place in his presence and neither the deceased in his presence went to pacify the quarrel nor appellant in his presence fired at deceased. He has further stated that his family members told him that his mother died of heart failure. In the FIR, the informant has stated appellant and this witness Ramakant Singh were quarrelling with each other and when appellant, after bringing a rifle from his house, ran to assault this witness, the deceased Lallan Singh tried to save this witness on which appellant fired at deceased Lallan Singh, but as stated above this witness has even denied his presence in the village at the time of occurrence and has stated at the time occurrence, he was in another village and occurrence did not take place in his presence and he came to know about the occurrence when he returned to his house and he has not given the name of anybody who told him that appellant had fired at deceased. 10. Deva Devi is the grand mother of deceased Lallan Singh. She has said that on the day of occurrence at about 4 p.m. the mother of appellant quarrelled with deceased Mahadevi and she heard huzza that appellant had killed his grandson Lallan Singh after hearing this huzza when she ran from her Angan, sile saw appellant running away and deceased Lallan Singh was lying injured and, thereafter, deceased was taken to Barhaiya hospital and when he was being taken to Patna, he died in the way. She further stated that her statement was recorded by police. As stated. She further stated that her statement was recorded by police. As stated. Birendra Mahto (PW 7) has proved her fardbeyan which is marked as (Exhibit 5), in her fardbeyan, this witness has stated that she say the appellant firing at deceased with his gun but in her evidence, she has not claimed to be an eye witness of the occurrence and she has not stated anything about firing by the appellant. The only thing which she has stated about the appellant is that when she came out from her Angan, she saw appellant "running- away with an arm in his hand. 11. Md. Hasnain (PW 14), who is the Investigating Officer of this case, has stated that he has recorded the fardbeyan (Exhibit-3) of informant and he took up investigation of the case and prepared inquest report (Exhibit-6/1) of the dead body of Lallan Singh and visited the place of occurrence and after recording the statement of witnesses and completing investigation, he submitted charge-sheet. 12. From the entire evidence adduced on behalf of the prosecution, I find that there is no eye witness to the occurrence, even the informant who, in the FIR, had claimed to be an eye witness, in his evidence, has not supported the case of the prosecution and has not claimed himself to be an eye witness of the occurrence because in cross-examination, be has clearly stated that he did not see the occurrence. Besides this, geness of occurrence as stated in the FIR, is at when appellant wanted to assault Ramakant Singh, the deceased tried to save Ramakant Singh on which appellant fired at deceased but even Ramakant Singh (PW 9) has not supported the case of the prosecution because he has stated that at the time of occurrence, he was not present in the village and he was at village- Barhaiya and when he came to the village, he heard that appellant committed the murder of deceased Lallan Singh. The only evidence of Deva Devi (PW 11) against appellant is that on hearing huzza when she came out of her Angan, she saw that appellant was running away with, an and deceased was lying injured. The only evidence of Deva Devi (PW 11) against appellant is that on hearing huzza when she came out of her Angan, she saw that appellant was running away with, an and deceased was lying injured. On the basis of only this evidence, it is very difficult to come to the conclusion that it was the appellant who had fired at deceased and the injuries caused by that firing proved to be fatal, besides this, as stated above. Deva Devi in her fardbeyan, had given a quite different account of occurrence because in her fardbeyan, she claimed to be an eye-witness of the occurrence but in her evidence, she has given a complete go bye to her fardbeyan, under these circumstances no reliance, even on her evidence that she saw appellant running away from the place of occurrence can be placed. The Court below after stating that during the course of giving evidence. Deva Devi (PW 11), started weeping after looking to the, appellant specifically pointing that he killed the deceased for no fault, has observed that this demeanour of this witness, who is an old lady of 68 years, clearly speaks that the appellant caused the death of deceased Lallan Singh by a close range firing by fire arm. I fail to agree with this finding of Court below because when this witness is not claiming to be an eye witness of the occurrence in her evidence how can her demeanour will lead to draw an inference that the appellant fired at deceased from a very close range. So far question of weeping of this witness, after looking at appellant during the course of her evidence is concerned, that may be for the reason that she might be carrying impression that it was the appellant who had committed murder of deceased but then for carrying such impression, the prosecution was required to bring on record some evidence which is absent in this case. So I find that only on the basis of evidence of Deva Devi, that she saw the appellant running away from the place of occurrence carrying some arm with him, cannot be considered for holding that prosecution has proved its case beyond all reasonable doubt particularly when this evidence of Deva Devi also does not inspire, confidence in view of the face that while giving evidence in Court, she has given a complete gobye of her earlier statement recorded in her fardbeyan, (Exhibit-5) which is entirely different from her evidence. I, therefore, find that prosecution has not been able to prove the charges u/s. 302, IPC and Sec. 27, Arms Act against the appellant. 13. In the result, this appeal is allowed and the judgment and order of Court below convicting and sentencing the appellant is hereby set aside. The appellant is acquitted of the charges and he is discharged from the disabilities of bail bonds. B.K.Jha, J. 14 I agree.