Judgment : LAKSHMAN URAON, J. ( 1 ) SOLE appellant Sanatan Diggi has preferred this appeal against the conviction and sentence dated 14th February, 2000 passed by learned 1st Additional Sessions Judge, Chaibasa in Sessions Trial No. 269 of 1995 whereby and whereunder appellant was convicted under Section 302 of the Indian Penal Code and Section 27 of the Arms Act and sentenced to undergo imprisonment for life under Section 302, IPC and to undergo rigorous imprisonment for a period of two years for the offence punishable under Section 27 of the Arms Act and also to pay fine of Rs. 3000/- and in default of payment of fine, to undergo further RI for a period of one year, directing both the sentences to run concurrently. ( 2 ) THE facts of the case is based on the fardbeyan (Ext. 1) of the informant Amar Singh Nayak Munda (PW 5) recorded on 19/6/1994 at 20. 00 hour by SI R. P. Singh, 0/c. Jhinkpani (PW 9) at village Choya is that in the file ://d :\prograrn Files\crirnes\database\aa\aa\ 2003 (2) Crimes 276 . htm 8/5/2006 evening while he was in his home, then Pitam Kunkal and Samir Diggi took him near the house of Chaitanya Das as this appellant Sanatan Diggi had called him. Informant along with these two persons went near the house of Chaitanya Das where he found Sanatan Diggi and Baikunth Kunkal, Sanatan Diggi demanded his share of the collected amount of last years fair. Informant replied that the money was lying with Puja committee. He simply performs the Puja. He had no knowledge about the money collected to run the fair. Then appellant Sanatan Diggi caught hold of his hand and handed over his pistol to Samir Diggi ordering to shoot the informant. He also asked Baikunth Kunkal to call the other associates. Informant also called his son through Pawan Das who was standing there. Informant caught the pistol and tried to snatch it. In scuffle, chain of the pistol was broken. Samir Diggi assaulted the informant with fists. On the alarm raised by the informant, the nearby persons assembled. Sanatan Diggi took the pistol from the hand of Samir Diggi and started fleeing away towards the North. Samir Diggi and Pitam Kunkal also fled away on cycle. Thereafter, Baikunth Kunkal also fled away on cycle towards the direction of Samir Diggi and Pitam Kunkal. On the alarm raised by the informant, the nearby persons assembled. Sanatan Diggi took the pistol from the hand of Samir Diggi and started fleeing away towards the North. Samir Diggi and Pitam Kunkal also fled away on cycle. Thereafter, Baikunth Kunkal also fled away on cycle towards the direction of Samir Diggi and Pitam Kunkal. The villagers chased Sanatan Diggi. He opened five rounds fire from his pistol causing one injury to Shiva Gope Matari on his right shoulder. Shiva Gope fell down there having sustained bleeding injury on his right shoulder. He was taken in front of his house and from where he was being taken for treatment to Sadar Hospital, Chaibasa on Tempo but he succumbed to his injury at the border of Choya village. The dead body was brought back to his home on Tempo and was on the road in front of the house of Shiva Gope Matari. After investigation, the JO submilled charge-sheet against Sanatan Diggi, Samir Diggi, Baikunth Kunkal and Pitam Kunkal. The learned 3rd Additional Sessions Judge, Chaibasa framed charges against all the four charge- sheeted accused under Sections 302/34, 387/34, IPC and under Section 27 of the Arms Act read with Section 34 of the IPC. The learned 1st Additional Sessions Judge, Chaibasa acquitted Samir Diggi, Baikunth Kunkal and Pitam Kunkal whereas, he convicted appellant Sanatan Diggi under Section 302, IPC and under Section 27 of the Arms Act. ( 3 ) THE prosecution has examined 9 witnesses in order to substantiate the charges leveled against the appellant. PW 1 Darimo Debi is the wife of the deceased who is a hearsay witness. She only saw the deadbody of her husband when it was brought and kept in front of her house. PW 2 Pawan Kumar and PW 3 Rajendra Prasad Kunkal have not supported the prosecution case and were declared hostile by the prosecution. PW 4 Han Gope and PW 6 Ganga Ram Gope are the witnesses in whose presence; inquest report was prepared by the JO on which they signed Exts. 2 and 2/1 respectively. PW 6 Ganga Ram Gope is a hearsay witness who had also signed on the inquest report Ext. 3 PW 5 Amar Singh Nayak Munda, informant of this case, and his son PW 8 Daitari Nayak are the eye-witnesses of the alleged occurrence. PW 7 Dr. 2 and 2/1 respectively. PW 6 Ganga Ram Gope is a hearsay witness who had also signed on the inquest report Ext. 3 PW 5 Amar Singh Nayak Munda, informant of this case, and his son PW 8 Daitari Nayak are the eye-witnesses of the alleged occurrence. PW 7 Dr. B. Dayal conducted the postmortem examination and submitted postmortem report (Ext. 4 ). PW 9 Rana Pratap Singh, the JO investigated the case, recorded the statement of the witnesses, prepared the inquest report and submitted charge-sheet against the accused persons. No one has been examined on behalf of the Defence. The appellant has taken the plea that due to enmity, PW 5 and PW 8 who are father and son, have falsely implicated him in this murder case. ( 4 ) THE learned 1st Additional Sessions Judge, Chaibasa considered the evidence of eyewitnesses PW 5 Amar Singh Nayak Munda who is also informant of this case and, the evidence of his son PW 8 Daitari Nayak supported by medical evidence of PW 7 Dr. B. Dayal and also the evidence of the 10 Rana Pratap Singh (PW 9) and convicted the sole appellant and sentenced thereunder. ( 5 ) THE learned counsel for the appellant has assailed the judgment of conviction and sentence passed against the appellant on the ground that appellant has falsely been implicated in this case on account of enmity. This appellant is innocent. The learned Court below has disbelieved the genesis of the alleged occurrence, which was regarding demand of share of the collected amount in organizing the fair of previous year. The fardbeyan of the informant was recorded on 19/6/1994 at 17. 30 hour and the FIR was registered on the same day at 23. 30 hour, but it was received in the Court of ACM on 22/6/1994. The learned counsel for the appellant has submitted that there is delay in sending the FIR to the nearest Magistrate for about two days and has relied upon a case Ishwar Singh v. State of Uttar Pradesh, in which it was held that, the extra ordinary delay in sending the FIR is a circumstance which provides a legitimate basis for suspecting that the First Information Report was recorded much later than the stated date and hour affording sufficient time to the prosecution to introduce improvement and embellishment and set up a distorted version of the occurrence. In another case; State of Rajasthan v. Teja Singh and others, it was held that delay of two days in sending FIR to the Magistrate taking plea hat those two days were holidays cannot be a ground for condoning said delay because requirement of law is that FIR should reach concerned Magistrate without any undue delay. It was also submitted that the villagers were chasing this appellant but those independent village witnesses who were present in chasing the appellant have not been examined by the prosecution. The deceased sustained firearm injury and the doctor found blackening of the wound, which is possible if it is fired from a close range of 6 inch to 12 inch. In this present case, the prosecution case is that when appellant was being chased then he fled away opening fire and lastly he turned back and open fire from a distance of 80/90 yards causing injury on the right shoulder of Shiva Gope Matail. Only the interested witnesses PW 5 Amar Singh Nayak Munda and his son PW 8 DaitariNayak claim themselves to be the eye-witnesses. Both of the have deposed that just after the alleged occurrence, PW 5 went to Jhinkpani on motorcycle to manage Tempo and informed the Police Station about the alleged occurrence. At Jhinkpani Police Station, the Officer-in-charge recorded his fardbeyan on which he signed (Ext. 1) PW 8 Daitari Nayak has con-oborated this statement that his father soon after the alleged occurrence went to the Police Station and informed about the alleged occurrence. It was argued that the said First Information Report has been suppressed by the prosecution, which would have been the First Information Report in the eye of law giving true picture of the alleged occurrence. PW 9 Rana Pratap Singh, JO claims that on 19/6/1994 while he was posted at Jhinkpani Police Station he heard rumour that at village Choutha (Choya) there was firing. He entered S. D. Entry No. 294 dated 19/6/1994 and proceeded for village Choutha and recorded fardbeyan (Ext. 1) of the informant (PW 5) at 8. 00 p. m. Taking into evidence of these statements of PW 5 and PW 8 that informant soon after the alleged occurrence went to the Police Station and informed the police, was not corroborated by the JO PW 9 who totally denies to have recorded the statement of the informant at the Police Station. 00 p. m. Taking into evidence of these statements of PW 5 and PW 8 that informant soon after the alleged occurrence went to the Police Station and informed the police, was not corroborated by the JO PW 9 who totally denies to have recorded the statement of the informant at the Police Station. On the other hand, the S. D. Entry No. 294 dated 19/6/1994 was not brought on record and was purposely suppressed by the prosecution. ( 6 ) THE learned APP has submilled that in this present case, the evidence of PW 5 and PW 8 have rightly been relied upon by the learned 1st Additional Sessions Judge as they are eye-witnesses and were present at the P/o. It was submitted that the JO had not recorded the detailed statement in the S. D. Entry, which was entered only on the basis of rumour without any detail. Hence, the fardbeyan recorded at village Choya of the informant PW 5 is the First Information Report in this case which was recorded on the same day of the alleged occurrence at 8. 00 pm. The alleged occurrence took place at 7. 30 p. m. Thus, there was no opportunity of concoction and embellishment for improving the prosecution case. ( 7 ) IN this present case, PW 5 Amar Singh Nayak Munda (informant) and his son PW 8 Daitari Nayak are the eye-witnesses who were present near the house of Chaitanya Das on the road. PW 5 Amar Singh Nayak Munda was called by Sanatan Diggi through Pitam Kunkal and Sami Diggi. When he went in front of the house of Chaitanya Das, then he saw Sanatan Diggi and Baikunth Kunkal. Sanatan Diggi (appellant) demanding his share of collection, which was collected in organizing fair in the previous year. When informant denied to have possessed any collected amount, rather it was with the Puja Committee, then Sanatan Diggi caught his hand and handed over his pistol to Sami and asked him to shoot. There was scuffle in between Samir Diggi and the informant Amar Singh Nayak to snatch the pistol. Both Sanatan Diggi and the informant called their supporters. Sanatan Diggi did not assault the informant; rather he snatched the pistol and fled away opening fire. The villagers assembled and chased. The 5th fire opened by him caused injury to Shiva Gope on his right shoulder. Both Sanatan Diggi and the informant called their supporters. Sanatan Diggi did not assault the informant; rather he snatched the pistol and fled away opening fire. The villagers assembled and chased. The 5th fire opened by him caused injury to Shiva Gope on his right shoulder. After the alleged occurrence he along with another villager went to Jhinkpani, informed the police and brought a Tempo. The injured wasbeing taken for his treatment, but he succumbed to his injury at the border of village Choya. Then the deadbody was brought back to his home on the Tempo. Then again this witness claims that he took the deadbody to Jhinkpani PS where his fardbeyan was recorded on which he signed (Ext. 1), PW 9, JO of this case, contradicted the evidence of the informant (PW 5) by stating that he received rumour regarding firing at village Choya. He entered S. D. Entry No. 294 dated 16/9/1994 and went to village Choya where he recorded the fardbeyan of the informant at 8. 00 p. m. This statement of the JO is also supported by Ext. 1 which is the fardbeyan of the informant PW 5 Amar Singh Nayak Munda that his fardbeyan was recorded on 19/6/1994 at 8. 00 p. m. at village Choya, PS Jhinkpani. PW 8 (son of PW 5) has deposed that Sanatan Diggi fired five shots: one shot injured Shiva Gope on his right shoulder. Thereafter Sanatan Diggi fled away by opening fire. His father PW 5 went to the Police Station and informed the police. PW 5 informant has deposed that there are houses of Shatrughan Lohra, Goya Gope, Narayan Nayak and Sadhu Nayan in between his house and the house of Chaitanya Das. PW 2 Pawan Kumar Das was present in his Angan. In the mob, about 15/20 villagers assembled. He had been to the Police Station along with PW 3 Rajendra Prasad Kunkal and informed the police. But PW 3 Rajendra Prasad Kunkal has not supported this statement of PW 5 and was declared hostile by the prosecution. Informant is known to the Officer-in-Charge. Jhinkpani PS as he is Munda of the village. He has also deposed that on the next day, JO prepared the inquest report of the dead body. This is also not supported by the JO only because inquest report (Ext 3) shows that it was prepared on 19/6/1994 at 8. Informant is known to the Officer-in-Charge. Jhinkpani PS as he is Munda of the village. He has also deposed that on the next day, JO prepared the inquest report of the dead body. This is also not supported by the JO only because inquest report (Ext 3) shows that it was prepared on 19/6/1994 at 8. 00 p. m. at village Choya itself and not on the next day i. e. 20/6/1994. It was prepared in presence of witnesses Ganga Ram Gope (PW 6) and Shri Han Gope (PW 4) on which they signed Exts. 2/1 and 2 respectively. PW 8 Daitari Nayak has also deposed that Sanatan Diggi opened fire five times. One shot injured Shiva Gope on his right side of chest. Thereafter, Sanatan Diggi fled away by opening fire in the sky. This witnesses has deposed that he was tutored by his father informant (PW 5) what to depose in the Court. Thus, the admission of this witness regarding deposition in the Court as tutored by his father cuts the very root of the prosecution case that he is an eye-witness of the alleged occurrence. This is further clarified that he was not asked by the JO about the alleged occurrence as deposed by him in paragraph 8 of his evidence, rather he deposed in the Court for the first time as a witness. ( 8 ) THE first place of occurrence is in front of the house of Chaitanya Das on the road. PW 5 Amar Singh Nayak Munda when called by this Sanatan Diggi, went in front of the house of Chaitanya Das. PW. 8 Daitari Nayak has also deposed that his father went in front of the house of Chaitanya Das where this appellant had called his father PW 5, PW 9 found the first place of occurrence, which is the road in front of the house of Chaitanya Das at village Choya near Sai Tola. He found the second place of occurrence situated at 5 yards West from the first place of occurrence which is claybuilt road which goes from Lohar Tola to Chiriya Pahari. He did not find any bloodstain there, as it had heavily rained on that day. When he had visited the Plo at that time also it was raining gently. So he could not find any material exhibit including bloodstained soil there. He did not find any bloodstain there, as it had heavily rained on that day. When he had visited the Plo at that time also it was raining gently. So he could not find any material exhibit including bloodstained soil there. This statement of the JO contradicts the statement of the informant (PW 5) Amar Singh Nayak Munda who has deposed in paragraph 20 that on the alleged day of occurrence, there was no rain in his village or in the nearby areas of his village. The JO has not seized any bloodstain, as he did not find it in the plea that on the day of alleged occurrence, there was heavy rain. None of the independent villagers 15/20 in number who were chasing the appellant, have been examined by the prosecution. Non-examination of the village independent witnesses creates doubt in the genuineness of the prosecution case regarding murder of Shiva Gope Matari by opening fire by this appellant who was also chasing the appellant with the other villagers. At the time of chasing the appellant, there were 20/30 villagers. PW 8 has deposed that he and his brother were ahead. He could not name the other villagers who were also chasing. Appellant was 100/150 yards ahead of the chasers. Sanatan Diggi fired in standing position by turning towards the mob causing injury to Shiva Gope. PW 7 Dr. B. Dayal on 20/6/1994 at 11. 30 p. m. conducted the postmortem examination on the dead body of Shiva Gope Matari and found rigor mortis present and found one entrance wound over right side of chest at the lateral of third rib in mid clavicular line, margins inverted blackening with abrasion, collor present 1/2 x 1/2 circular incise. Stomach contained full of undigested food particles and Hariya, found fracture of right third rib anterior aspect and rupture of right lung, recovered bullet from right mid scapular region on the back side and handed over to the constable under seal label. The death was within 48 hours from the time of postmortem examination due to firearm and the cause of death was above injuries due to haemorrhage and shock. He prepared postmortem report in his pen and signature (Ext. 4 ). The death was within 48 hours from the time of postmortem examination due to firearm and the cause of death was above injuries due to haemorrhage and shock. He prepared postmortem report in his pen and signature (Ext. 4 ). The doctor found the direction of firearm to be projectile from the lower side to the upper side, which can be possible if the person fired in a sitting position at a person who was in standing position. The food takes 2/6 hours for complete digestion. PW 1 Darimo Debi is the wife of the deceased. She has deposed that on the alleged date of occurrence, she and her husband Shiva Gope Matari had taken their meal at 12. 00 noon and then went to market. At about 4. 00 p. m. , they returned home from market. Her husband deceased Shiva Gope had not taken any meal nor he had taken rice bear (hariya) and had gone to the place of occurrence when called by the appellant. The evidence of this witness who is the competent witness regarding taking of food by her husband that he took meal at 12. 00 noon and after return from the market, he did not take any meal and went near the house of Chaitanya Das and the alleged occurrence took place at 5. 30 p. m. The doctor conducted postmortem exa-mination on 26/6/1994 at 12. 30 p. m. and found stomach filled with undigested food particles and Hariya and the death was caused within 48 hours by firearm. Thus, the evidence of PW 1 regarding taking of food and the time of the alleged occurrence as per evidence of PW 7 contradicts each other, which creates doubt regarding the time of the alleged occurrence which would have been without 24 hours instead of 48 hours from the time of the alleged occurrence. The bullet, which was handed over under seal cover, also could not be examined by any ballistic expert. Thus, I find that due to non-seizure of bloodstained soil at the place where Shiva Gope Matari was shot at, could not be established. Appellant did not shoot at the informant against whom he had grudge regarding non-payment of collected amount of the fair which was held up proper to one year of the alleged occurrence. Thus, I find that due to non-seizure of bloodstained soil at the place where Shiva Gope Matari was shot at, could not be established. Appellant did not shoot at the informant against whom he had grudge regarding non-payment of collected amount of the fair which was held up proper to one year of the alleged occurrence. He had no intention to shoot any person but when he was chased, then only to terrorize the villagers he fired in the sky and fled away. When he was chased 100/150 yards away, then he turned back and opened fire which injured Shiva Gope @ Matari on his right side of chest. Thereafter, there is no evidence that the villagers chased this appellant to apprehend him. On the other hand, the independent witness PW 2 and PW 3 have turned hostile. Only the informant PW 5 and his son PW 8 claimed themselves to be the eye-witnesses who are in inimical terms with this appellant. Informant has deposed that at the place where Shiva Gope @ Matari fell down on being injured by firing, the blood had oozed out from the wound which was seen at the Plo and was pointed out to the JO. But the JO did not seize bloodstained soil in his presence. The 10 PW 9 has suppressed the S. D. Entry No. 294 dated 19/6/1994. Instead of making any seizure of the bloodstained soil, he had deposed that there was heavy rain on that day and was still raining gently. ( 9 ) IN view of my above considered facts, evidence and manner of the alleged occurrence, I find that PW 5 and PW 8 who are father and son and interested witnesses, have contradicted regarding the manner of the alleged occurrence. The prosecution has purposely not examined the villagers who had assembled there numbering 20/30 and had also chased the appellant. Non-examination of the independent village witnesses also creates doubt in the prosecution case. Those witnesses who are wole perdent village witness PW 2 and PW 3, have not supported the prosecution case. PW 1 Darimo Debi, wife of the deceased, has also not named as to who took her husband near the house of Chaitanya Das when called by this appellant. She does not know as to whether there was any altercation or quarrel in the village. PW 1 Darimo Debi, wife of the deceased, has also not named as to who took her husband near the house of Chaitanya Das when called by this appellant. She does not know as to whether there was any altercation or quarrel in the village. Her evidence regarding taking of meal by her husband Shiva Gope and the postmortem report and the evidence of PW 7 Dr. B. Dayal regarding time of death and taking of food is also quite contradictory to support the prosecution case regarding the time of the alleged occurrence. The manner of the alleged occurrence could not be seen by PW 5 and PW 8 in a position when they were chasing the appellant. The doctor found the injury from lower portion to upward portion. This can only be possible if one fire in a sitting position and the person who sustained injury should have been in a standing position. In this present case, there is no such evidence that appellant fired at Shiva Gope in sitting position. Moreover, the wound was inverted margin, blackening abrasions, which cannot be possible by opening fire from a distance of 80/90 yards. The evidence of PW 5 and PW 8 is that in course of chase when appellant was 100/150 yards away from the chasers, then he turned back and fired causing injury to Shiva Gope Matari on his right side of chest. ( 10 ) THUS, I find that the prosecution has failed to prove the genesis of the alleged occurrence and also time and place of occurrence and also the manner in which Shiva Gope Matari was shot at. In view of my above considered fact. In come to the conclusion that the learned 1st Additional Sessions Judge, Chaibasa has not considered the evidence of PW 1 Darimo Debi, wife of the deceased; PW 5 informant Amar Singh Nayak Munda, his son PW 8 Daitari Nayak and the evidence of Dr. B. Dayal (PW 7 ). Moreover, he had not considered the perfunctory manner of investigation conducted by the 10 PW 9 Rana Pratap Singh. Hence the order of conviction and sentence passed by the learned Court below cannot be sustained, as the prosecution case is full of doubt. B. Dayal (PW 7 ). Moreover, he had not considered the perfunctory manner of investigation conducted by the 10 PW 9 Rana Pratap Singh. Hence the order of conviction and sentence passed by the learned Court below cannot be sustained, as the prosecution case is full of doubt. ( 11 ) IN the result, this Criminal Appeal is allowed and the order of conviction and sentence passed by the learned Court below is set aside and the appellantaccused is acquitted in this case. As the appellant is in custody, it is ordered that he be released forthwith from the custody if not wanted in any other case. Appeal dismissed. --- *** --- .