Judgment Prabhat Kumar Sinha, J. 1. The two appeals aforesaid relate to the same judgment of the lower court, hence have been heard, and are being disposed of, together. 2. All the appellants have been convicted under section 302 read with section 34 of the Indian Penal Code ("the Code", in short) and sentenced to undergo imprisonment for life. They are further sentenced to undergo rigorous imprisonment for seven years under section 27 of the Arms Act whereas appellant Manoj Sharma is further sentenced to the imprisonment for life under section 307 of the Code. All the sentences are to run concurrently. Fardbeyan of the informant Raja Ram Sharma (P.W. 8), son of the deceased Umesh Sharma was recorded at the place of occurrence on 11.12.1995 at about 8,45 A.M. stating therein that he was coming with the deceased to reach him to Jehanabad station, at about 8.00 to 8.15 A.M., accompanied by Mahesh Lal (P.W. 2). Father was ahead of them followed by Mahesh Lal. They were proceeding through S.N. Sinha College and when they reached near a roofless room to the north of the College, he saw the four appellants and one Raj Kishore Sharma coming out with pistols whereafter appellant Vijay Sharma ordered for killing Umesh Singh, and fired himself. All the five surrounded his father and started firing. Ram Niwas Sharma hit at neck, Shri Niwas Sharma at chest and Raj Kishore at left arm causing grievous injuries to his father who fell down, writhing. When objected to by Mahesh Lal, Vijay Sharma ordered for killing him as well the informant, as they had witnessed the occurrence, at which Manoj Sharma fired at Mahesh Lal hitting at the temporal region, who also fell down. The informant himself fled away. By that time other witnesses also came but the accused had fled away. P.W. 3, Suresh Sharma and P.W. 1 Dhananjay Sharma are named in the first information report as witnesses, both coming from behind. When the informant came back he found his father dead. Motive for the assault was that the appellants wanted to demolish the ridge of the "Bari" of the informant side for using that portion as passage which was objected to by the informant side. 3. When the informant came back he found his father dead. Motive for the assault was that the appellants wanted to demolish the ridge of the "Bari" of the informant side for using that portion as passage which was objected to by the informant side. 3. Ten witnesses in all have been examined by the prosecution including Ranbir Minz, P.W. 10, who had conducted the investigation whereas Yugendra Sharma, P.W. 9, was a formal witness. P.Ws. 4 and 5 were witnesses to the seizures made by the police whereas P.W. 7, Dr. Ashok Kumar had examined the injuries of Mahesh Lal. P.W. 6, Dr. Mukesh Kumar Singh had conducted the post mortem upon the deceased. 4. P.W. 1, Dhananjay Sharma, said to be an eye-witness of the firing, did not support the prosecution case giving altogether a different story for which he was declared hostile by the prosecution. P.Ws 2, and 3 (Suresh Sharma), also named as witness in the first information report, have supported the prosecution case as eye-witnesses. 5. The defence of the appellants all through has been that in the night itself while the deceased was returning from Patna, some unknown persons had murdered him and had looted the money and tiffin carrier etc. and when the informant came to know in the morning about the occurrence, he instituted a false case due to enmity. 6. First a glance over the evidence of supporting witnesses. P.W. 2 has said that on 11.12.1995 at about 8.00-8.15 A.M. while he was going to Jehanabad station from his house, in the way he met the deceased and the informant who also were going to Patna. 7. Here it may afso be mentioned that in the first information report itself it has been admitted by the informant that the deceased was an employee in the Irrigation Department at Patna and attended his duty daily by going from Jehanabad and returning every day. He also said that Mahesh Lal was also going to Patna. 8. P.W. 2 has said that when they reached near S.N. Sinha College, five accused including Kishore Sharma (Raj Kishore Sharma) came out of a room with country made pistols and Vijay Sharma ordered for killing Umesh Sharma and fired upon him, which, however, did not hit the deceased. He also said that Mahesh Lal was also going to Patna. 8. P.W. 2 has said that when they reached near S.N. Sinha College, five accused including Kishore Sharma (Raj Kishore Sharma) came out of a room with country made pistols and Vijay Sharma ordered for killing Umesh Sharma and fired upon him, which, however, did not hit the deceased. The shot fired by Ram Niwas Sharma hit the deceased below his right ear and the shot fired by Shri Niwas Sharma hit in the chest and the shot at Raj Kishore Sharma hit on right arm. According to this witness Vijay Sharma ordered to kill this witness as well the informant otherwise they could name them, at which Manoj Sharma fired which hit his nose and which shot, touching just below the right eye, sped away, as result of which he lost his right eye. This witness also showed his injuries to the trial court, marks near the nose and below the right eye. He said that he was treated at Jehanabad hospital. 9. In cross-examination this witness was asked a number of questions about the activities of the extremists in the locality. In cross-examination this witness said that he had met the deceased near a bridge, ahead of Kalpa Police Station. This witness denied knowledge of any case in which the deceased was an accused, instituted for attempting to commit murder of the appellant Vijay Sharma which case was said to be pending. But he admitted that Vijay Sharma was in service. He also admitted that appellant Raj Kishore Sharma was in service. He denied the alibi of these two appellants. This witness did not say in the first information report, that all the accused had surrounded the deceased but said that they were standing to the east of the deceased. According to this witness, they were ten yards away when he first saw them and they came forward five yards, when they started firing but during this period none of them (the informant and this witness) tried to flee away. He said that they had fired one by one. This witness said that after fleeing away of the accused, he also had fled, to about thirty yards, but when he saw that people had come he stopped, though he could not say as to who had come. He said that they had fired one by one. This witness said that after fleeing away of the accused, he also had fled, to about thirty yards, but when he saw that people had come he stopped, though he could not say as to who had come. He also admitted that he did not come back to the place of occurrence but went directly to the hospital and was treated at Jehanabad hospital whereafter was treated at Patna Medical College Hospital for thirty seven days. He said that during all this period he was conscious and denied the suggestion that Police Officer of Patna had gone to take his statement but he refused to give that telling that he would give his statement after pondering over that. He admitted that his statement was recorded by Daroga on 27.11.1996 (the date of occurrence being 11.12.1996). A number of contradictions from his previous statement were suggested by the defence to which l will revert back later. Subsequently, he also claimed, he had asked the lower court to get his statement recorded under section 164 of the Code of Criminal Procedure as the Police had not recorded that correctly. He also denied the suggestion that the occurrence was committed by extremists. 10. P.W. 3, similarly, said that on that day in the morning when he reached S.N. Sinha College he saw that from a roofless room the appellants and Raj Kishore Sharma came out, all with country made pistols and surrounded Umesh Sharma. He supported that on order of Vijay Sharma, Ram Niwas Sharma, Shri Niwas Sharma and Raj Kishore Sharma fired at the deceased hitting the neck, chest and right arm, respectively, though the shot fired by Vijay Sharma did not hit him. He also supported that Vijay Sharma ordered to kill P.W. 2 and the informant saying that otherwise they would tell their names at which Manoj Sharma fired, hitting below the right eye of P.W. 2. He said that Umesh Sharma had died at the spot but P.W. 2 was taken to Jehanabad hospital. This witness also was asked several questions about other incidents alleged to have been committed by the extremists in the locality, but denied that his village was affected by extremism. He said that Umesh Sharma had died at the spot but P.W. 2 was taken to Jehanabad hospital. This witness also was asked several questions about other incidents alleged to have been committed by the extremists in the locality, but denied that his village was affected by extremism. He also admitted that he himself had got his statement recorded under section 164 of the Code of Criminal Procedure about one and half to two months of the occurrence. He admitted that Dhananjay Sharma, P.W. 1 had also come with him and they had reached together at the place of occurrence. This witness said that on the date of occurrence the accused had surrounded the deceased from three sides but no one fled away even after Umesh Singh had fallen down. Soon after the occurrence Mahesh Lal was taken by the witness and others to the hospital. 11. P.W. 4 is witness to the seizures of the blood stained soil and two empty cartridges plus three pellets. RW. 5 said that on 11.12.1995 he heard that some one was murdered near the College at which he went, and found Police, there. The Police had seized the aforesaid articles and he also had signed on it as a witness. 12. P.W. 8 is the informant himself. In examination-in-chief he, by and large, has supported the allegations made by him in the first information report. He also claimed that P.W. 1 and P.W. 3 had seen the occurrence. He said that he had fled away from the place of occurrence and on coming back he saw his father dead. He supported the motive for murder stating that the appellants and their family members wanted to make a passage by cutting soil of their "Bari" which was not being allowed by the informants family members. He also said about filing of the protest petition against the Investigating Officer and also filing of a protest petition against the doctor. 13. In cross-examination he said that his father was working in the Irrigation Department since last ten years and every day he went there after taking tea, with a tiffin carrier containing his lunch. Some times he used to stay at Patna but usually he came back in the evening by train. He was transferred to Patna about five years back. He also used to keep some money with him. Some times he used to stay at Patna but usually he came back in the evening by train. He was transferred to Patna about five years back. He also used to keep some money with him. He also admitted that prior to the date of occurrence, once or twice he had accompanied his father upto Patna. 14. He also admitted that he had given protest petition in the court about two months after the occurrence. However, this protest petition, filed belatedly cannot be taken seriously because the witness has admitted that he had not cited any example as to how evidence was not being recorded correctly nor any claim was made that any particular exhibit was left out by the officer at the place of occurrence. In so far as his protest against the doctor was concerned, he clarified that the aforesaid petition referred to the doctor at Patna Medical College Hospital who had given wrong injury report about P.W. 2. 15. In so far as protest petition against doctor of Patna Medical College Hospital is concerned, Exhibit-F is the injury report granted to P.W. 2 on 11.12.1995 in which one Dr. K.D. Rajan had found only two incised wounds upon the injured caused by sharp cutting weapon and simple in nature. It is this injury report that appears to have been referred to in the evidence of the informant against which protest was lodged. However, the learned lower court has rightly pointed that the doctor giving the report was not examined which was proved by a formal witness, hence reliance could not be placed upon that. On the other hand, the learned lower court has placed reliance, so far as injuries upon P.W. 2 are concerned, upon the duplicate copy of the bed-head ticket of Mahesh Lal received by the court from the Unit Incharge in the aforesaid hospital. The trial court has referred to an order in which a prayer by the prosecution to call for the bed-head ticket was rejected on 20.4.1998, also observing that the letter through which the duplicate copy was received could be looked into without its formal proof and the court then went on to look into the bed head-ticket, and to rely upon that on the ground that the defence had not challenged the order dated 20.4.1998. However, law is very clear as to under what circumstances secondary evidence could be brought into evidence. The law not having been satisfied on this score, the secondary evidence could not have been considered whether or not the defence had objected to it. Likewise the learned lower court also considered the supervision not of the Superintendent of Police as noted in paragraph 85 of the case diary taking aid of section 172(2) of the Code of Criminal Procedure but that very provision excludes use of case diary as evidence, which the learned lower court appears to have done. 16. Therefore, on the record there is evidence of three eye-witnesses who, by and large, have supported the prosecution case but clearly stated that three injuries were caused by three of the appellants by fire-arms upon order of Vijay Sharma, specifying as to who had caused which injury and in which portion of the body. Now evidence of RW. 6, the doctor may be seen about what he had found on examination of the dead body. Doctor had examined the dead body on 11.12.1995, on the date of occurrence itself, at 11.55 A.M., the time noted in the post mortem report, which is Exhibit-3. He found following injuries on the person of the deceased. "(i) Lacerated wound on the right lateral side of neck, oval 2 cm. diameter, depth going inside oral cavity. Skin edge inverted and scorched, the base of right mandible broken along with lower inciser and lower canine broken, directed towards left lower side of mouth where laceration of cavity found and pellet recovered, handed over to Police. (ii) Piercing wound wedge-shaped 4 cm x 3 cm x 5 cm on left side of lateral upper portion of neck with inverted, torn skin margin and teared (sic) neck vessel and muscles. (iii) Multiple lacerated wounds on right 6th inter-costal space midline area 3 to 4 in number, round scorched. (iv) In lateral wall of chest near left axilla, penetrating wound with inverted skin edge 3 cm x 3 cm depth going inside chest cavity which is open and found ruptured of left upper lobe of lung and plura. Heart-both chamber empty. Stomach - digested small quantity of food. Intestine - small faeces. Bladder - contains some urine. (iv) In lateral wall of chest near left axilla, penetrating wound with inverted skin edge 3 cm x 3 cm depth going inside chest cavity which is open and found ruptured of left upper lobe of lung and plura. Heart-both chamber empty. Stomach - digested small quantity of food. Intestine - small faeces. Bladder - contains some urine. (v) Lacerated wound with inverted skin edge scorched on outer surface of right upper arm 4 cm x 4 cm pointing towards medial upper side of right arm, exit wound inverted skin of 2 cm diameter. 17. According to the evidence of the doctor and as per the post mortem report, injuries (i), (iii) and (v) were caused by firearm whereas injuries no. (ii) and (iv), caused at neck and in the chest, respectively, were by pointed piercing weapon. All the injuries were together responsible to cause death. In cross-examination he clarified that these two injuries could be caused by pointed round edged weapon like dagger and Tekani. He clearly stated that in his opinion these two injuries in no case could have been caused by a fire-arm. 18. Therefore, the medical report does not support the manner of assault as claimed by the prosecution in which only three fire-arm wounds have been claimed but in the post mortem report two other injuries, one on neck and other on chest were found to have been caused by pointed weapon. According to the doctor, time since death was twelve hours. 19. It was argued on behalf of the appellants that post mortem was conducted within three to four hours of death still the doctor had opined that death was caused within twelve hours though he could well have said as to whether death was caused within six hours, also pointing out that such observation of doctor usually meant that death was caused within six to twelve hours. The argument was that the medical report supported the defence version that the deceased was murdered earlier in a different manner and when in the morning the informant came to know of that, he cooked up a story immediately, implicating the persons with whom he admittedly was on inimical terms. 20. Learned lower court has taken help of some decisions to come to the conclusion that in a case of conflict between the ocular and medical evidence, the ocular evidence should prevail. 20. Learned lower court has taken help of some decisions to come to the conclusion that in a case of conflict between the ocular and medical evidence, the ocular evidence should prevail. However, here the medical evidence is very clear that there were jive wounds instead of three as claimed by the prosecution witnesses, and two out of those were incised wounds. No doubt, ocular evidence in certain cases takes precedence over the medical evidence when the evidence of eye-witnesses is so reliable. To find as to whether three eye-witnesses are above board, evidence of P.W. 1 may first be examined. He has said that on the date of occurrence about six to seven in the morning while he was coming from his house to Jehanabad and reached S.N. Sinha College, he saw Umesh Sharma and Mahesh Lal together where fifteen to twenty persons came in uniform and started assaulting both with fire-arms and bhala. He did not identify any one. He said that Umesh Singh died and Mahesh Lal was severely injured who was taken to hospital, and this witness further claimed that he had given no evidence before the Police but admitted that his statement was recorded under section 164 of the Code of Criminal Procedure before the Magistrate claiming that he had given that statement because of threatening by the informant. His attention was drawn towards his statement made before the Magistrate. In cross-examination he said that after the assailants fled away, he went to the two injured and found Umesh Sharma dead and Mahesh Lal injured. He said that when he asked Mahesh Lal, he did not tell that he had identified any one rather Mahesh Lal asked him as to whether he had identified any one. He said that on the date of occurrence no one else was present at the place of occurrence, but after one hour the informant and Suresh Sharma and others came. 21. It is well settled that evidence of a hostile witness need not be excluded in its entirety from consideration. The evidence of a hostile witness can be considered either in favour of the prosecution or in favour of the defence, as the case may be. Here the evidence of this witness goes totally in favour of the defence. 22. P.W. 10 is the Investigating Police Officer. The evidence of a hostile witness can be considered either in favour of the prosecution or in favour of the defence, as the case may be. Here the evidence of this witness goes totally in favour of the defence. 22. P.W. 10 is the Investigating Police Officer. He said that he was handed over investigation of the case on the orders of the Superintendent of Police whereafter on 11.12.1995 he went to the place of occurrence. He testified that the place of occurrence was the College premises, five yards away from a half constructed house. He found two empty cartridges of .315 bore and two pellets. He admitted that he had arrested appellant Vijay Sharma on the same day at 11.30 A.M. from the Indian Bank, Newari (where he was working). He said that witness no. 1 before him had supported the occurrence. However, it was not taken from him as to what exactly was the statement of Dhananjay Kumar. It may be noted that prosecution had not drawn the attention of RW. 1 towards his statement said to have been made before Police, but only towards his statement made under section 164 of the Code of Criminal Procedure. 23. Attention of three eye-witnesses was drawn towards their statements given to the Police Officer, including about some omissions. Those were got confirmation from the Investigating Officer who said that P.W. 2, in his statement (which was given after about a month of the occurrence), did not say that the five accused had come out from a room or had said that they had country made pistols, nor that Vijay Sharma had ordered for killing and himself had fired which did not hit the deceased. This witness said that P.W. 2 also had not said as to which of the appellants had hit which portion of the body of the deceased (as claimed by the witness) nor he had said that Vijay Sharma had exhorted them to kill the informant and P.W. 2, nor did he say that Manoj Sharma had then fired which shot, touching his nose, had sped away injuring below the right eye. 24. 24. Likewise, this witness said that P.W. 3, Suresh Sharma, had not told as to which of the appellants had hit which portion of the body of the deceased nor he said that Vijay Sharma had asked to kill the informant and P.W. 2 also, or that Manoj Sharma had fired at Mahesh Lal injuring him below right eye. 25. Informant was asked as to whether in his further statement he had admitted that the deceased was main accused in attempt to commit murder of Vijay Sharma which he had denied, but this witness admitted that the informant had said so. 26. These are mostly omissions but touch very important aspects of the prosecution case. The two supporting witnesses had not said about the manner of assault by the appellants as claimed by them in the evidence. Therefore, these omissions cannot be treated as mere omissions. 27. D.W. 1, Ramesh Prasad Singh was then posted at Pirbahore Police Station in the district of Patna as Assistant Sub-Inspector and said that on 12th and 13th of January, 1996 he was on duty at the Patna Medical College Hospital for disposal of O.D. slips. He said that on 12.1.1996 he had gone to take statement of Mahesh Prasad Singh (admitted to be P.W. 2) but he refused to give statement stating that he would give his statement after due deliberation and after making consultations which he noted in the Sanha diary entry no. 402 dated 12.1.1996. P.W. 10, the Investigating Officer admitted in cross-examination that he had received copies of Pirbahore RS. Entry no. 402 dated 12.1.1996 and Entry no. 433 dated 13.1.1996 which were attached with the case diary. He also had received a report from the Assistant Sub-Inspector of Pirbahore Police Station dated 15.1.1996 which was also attached with the case diary. 28. D.W. 1 also said that on the next day also he had gone to take statement of the same injured and he again gave the same reply though he was quite fit to give statement which fact also was noted in Sanha entry no. 433 of that day. He identified those entries in his pen which were marked as Exhibits-B and B/1 as he had come with the Sanha diary under orders of the court. 29. This witness said that the Additional Public Prosecutor, Jehanabad in connection with the Bail Petition no. 433 of that day. He identified those entries in his pen which were marked as Exhibits-B and B/1 as he had come with the Sanha diary under orders of the court. 29. This witness said that the Additional Public Prosecutor, Jehanabad in connection with the Bail Petition no. 20 of 1996 had called his report which report he had sent. He proved that report available on the case diary, marked Exhibit-C. Learned lower court did not believe the evidence of this witness also on the ground that witness did not reveal as to on order of which superior authority he had gone to record the statement. But this witness in the beginning itself had said that on those two days his duty was in the emergency ward of the Patna Medical College Hospital to deal with the Out Door slips. Therefore, the Officer was deputed for that very purpose at the Patna Medical College Hospital. It is common knowledge that this Medical College Hospital being a premier hospital in the State, people from all over State including Medico-Legal cases are referred there. Apparently for this reason one Police Officer remains deputed at the Patna Medical College Hospital. P.W. 2 had given his statement to the Investigating Officer after much delay. Nothing had prevented the Investigating Officer to go to the Patna Medical College Hospital and record the statement of this witness soon after the incident as he was a very important witness. These lapses do not inspire confidence in the evidence of P.W. 2, also considering important omissions in his statement made before police even though it was after much delay. 30. The informant has admitted that the deceased also had tiffin-carrier with him and some money. But there is nothing on the record to show that the tiffin-carrier was recovered from the place of occurrence by the Police though some other articles were seized, nor it has come on the record if any money was found on the person of the deceased. 31. D.W. 2 relates to the alibi of appellant Manoj Kumar which need not be dealt with in detail, under the circumstances of the case. 32. 31. D.W. 2 relates to the alibi of appellant Manoj Kumar which need not be dealt with in detail, under the circumstances of the case. 32. Therefore from vital omissions in the statements of witnesses, and the facts coming out in the evidence of witnesses including the three eye-witnesses do not inspire such confidence in the evidence of the witnesses claiming to be eye-witnesses so as to hold that the testimonies should prevail over the medical evidence. No bias on behalf of the doctor conducting the post mortem has even been suggested in course of evidence. Therefore, there is hardly any room to disbelieve the testimony of P.W. 6 that he found,, besides three injuries by fire-arm, two more incised wounds caused by pointed weapons. An injury caused by a fire-arm on the one hand, and by a pointed weapon, on the other, are so distinct that hardly an expert could miss that. 33. If the evidence of doctor is found to be believable which l find so, then that causes serious doubts over the prosecution case relating to the manner of occurrence. That, coupled with the other points noted in this judgment, create doubts over the truthfulness of the prosecution case. 34. Therefore, in my opinion, the appellants deserve benefit of doubt. In that view of the matter, both the appeals aforesaid are allowed and the convictions and sentences passed against the appellants by the learned trial court are hereby set aside. The appellants are acquitted of the charges framed against them. Appellants Vijay Kumar alias Sharma and Manoj Kumar alias Manoj Sharma (of Cr. Appeal No. 359 of 1998) and Ram Niwas Sharma @ Bhuwan (of Cr. Appeal no. 447 of 1998), who are on bail, are discharged from the liabilities of their bail bonds. Appellants Shri Niwas Sharma @ Shree (of Cr. Appeal no. 359 of 1998), who is in custody, shall be set at liberty forthwith if not required to be detained in connection with any other case. Chandra Mohan Prasad, J. 35 I agree.