Judgment CHANDRA MOHAN PRASAD, J. 1. The two appeals arise out of the judgment dated 23.3.1999 of the 2nd Additional District and Sessions Judge, Gopalganj, in Session Trial No. 168/92/94/92 whereby each of the four appellants stands convicted under Sections 302/34 of the Indian Penal Code and sentenced to rigorous imprisonment for life. It may be mentioned here that originally there were five accused persons including one Manoj Singh who died during the trial. 2. The prosecution case as per the fardbayan of the informant Ajay Kumar Singh recorded by S.I. U. Sah, Officer Incharge of Barauli P.S. at 4 p.m. on 1.4.1992, at Barheya Morh is that on that day he (informant) along with his father Kashi Nath Singh (deceased) had gone to Gopalganj for purchasing house hold articles. While returning they alighted at Barheya Morh at about 3,30 p.m. He (informant) was walking ahead of his father (deceased). His father (deceased) asked him (informant) to proceed towards the house and he (deceased) stayed at the Morh for taking tea. In the meantime he (informant) saw that the appellants and accused Manoj Singh (sincedead) came there. Manoj Singh (now dead). Baleshwar Singh and Sunil Singh had country made pistol and rifle. All the accused caught hold of his father (deceased) and began assaulting him with fists and slaps. In order to save him, the deceased fled towards South but at a little distance towards South of the Morh the accused persons thrashed him (deceased) on the ground. He (informant) moved and cried whereupon the people nearby rushed for help and the informant also proceeded but the accused persons threatened to shoot if any body intervened. Accused Rajeshwar Singh and Raj Narayan Thakur kept the deceased seated by catching hold of both of his arms. Accused Sunil Singh fired at the deceased hitting his back. Baleshwar Singh fired hitting the deceaseds head and Manoj Singh (since dead) also fired on deceaseds head due to which deceaseds skull was blown off. The deceased fall down and bleeding started and he died within two minutes. The accused persons fled away towards east. The informant claimed that the villagers Kailash Singh (not examined), Dr. Amar Singh (not examined) and Amla Singh (PW 3) and the shop keepers there as well as the passersby had seen the occurrence. The deceased fall down and bleeding started and he died within two minutes. The accused persons fled away towards east. The informant claimed that the villagers Kailash Singh (not examined), Dr. Amar Singh (not examined) and Amla Singh (PW 3) and the shop keepers there as well as the passersby had seen the occurrence. About the cause of occurrence the informant alleged that Ramanand Singh, the father of accused Manoj Singh (since dead) had been murdered and in that murder case Manoj Singh had suspected the deceased and due to that Manoj Singh wanted to take revange and, therefore, the accused persons killed the deceased. 3. As many as seven witnesses have been examined by the prosecution. PW 1 Bir Bahadur Singh is a witness on the point of seizure of blood soaked soil and 2/3 empty cartridges from the place situated south of the shop to Tapeshwar Sah. at Barheya Morh. PW 2 Sadique Mian is a witness who is said to have arrived at the place of occurrence after the occurrence. But this witness has been declared by the prosecution a hostile witness. PW 3 Amla Prasad Singh and PW 4 Ajay Kumar Singh (informant) are the witnesses on the point of occurrence. PW 5 Dr. Ram Pravesh Singh is the doctor who held the post mortem examination of the deceased. PW 6 S.I., Upendra Sah is the IO of the case. PW 7 Gobardhan Singh is a constable who produced empty cartridges and pellet seized from the place of occurrence marked material Ext. I and II. 4. Though the defence is of complete denial of the prosecution story but the appellants Baleshwar Singh and Raj Narayan Thakur have also taken the plea of alibi. The defence has examined two defence witnesses. The DW 1 Hira Singh is a witness who has come to say that on the date of occurrence accused Baleshwar Singh was present in the marriage ceremony of his daughter. The DW 2 Om Prakash Singh who was an employee in a spinning mill at Ludhiana has deposed that on the date of occurrence i.e. 1.5.1992 accused Raj Narayan Thakur was working with him in that spinning mill. 5. The DW 2 Om Prakash Singh who was an employee in a spinning mill at Ludhiana has deposed that on the date of occurrence i.e. 1.5.1992 accused Raj Narayan Thakur was working with him in that spinning mill. 5. The docto PW 5 Ram Pravesh Singh deposed that on 2.5.1992 at 9.30 a.m. he held post mortem examination on the dead body of Kashi Nath Singh (deceased) and found the following ante mortem injuries on his person : (i) Half of vault of skull was completely blown off with portion of brain matter. The adjoining hair were found partially burnt. {ii} Right eye ball and socket was lacerated badly with fracture of roof of right orbit. The margin were blackened. (iii) Lacerated wound of the size 1/2" x 1/4" on right middle finger. (iv) Multiple pea size wounds oval were scattered on the back between the T 3 thorasic vertebra-III and Lumber vertebra-IV. The margin of wounds were inverted with blackening around them. On the dissection of the back ten muscle deep pellets were recovered. On dissection of brain, it was fully covered with blood and blood clot with laceration of remaining portion. In his opinion the cause of death was the shock and haemorrhage arising out of the above injuries specifically injury No. (i) caused by firearm. Time elapsed since death was within 24 hours. The post mortem examination report was proved and marked as Ext. 5 6. At para 2 of the cross-examination the doctor deposed that he could not say whether the injury No. (i) was caused by bullet or pellet as ho bullet or pellet was recovered from the wounds. He also deposed that the injury No. (i) could also be possible by bomb. At paragraph 4 he further deposed that in injury No. (i) he had not found any sign of bullet firing because 1/2 of the skull was blown off. As to injury No. (ii) he deposed at paragraph 5 that there was no sign of bullet or pellet in the back side of skull relating to the injury No. (ii) Regarding injury No. (iii) the doctor deposed at paragraph 5 that it was possible by hard blunt substance like lathi. As to the injury No. (iv) the doctor was unable to say as to from what distance the injury was caused. 7. As to the injury No. (iv) the doctor was unable to say as to from what distance the injury was caused. 7. In this case several contradictions and omissions relating to the statement of the prosecution witnesses as made before the police have been proved by the I.O. Therefore, it is proper to discuss the evidence of the I.O. first before taking up the" evidence of the informant and other witnesses. The I.O. (PW 6) deposed that on 1.5.1992 when he was the officer incharge of Barauli Police Station, Chaukidar Harihar Raut came to the police station at 3.35 p.m. and he stated that somebody had been shot at and killed at Barheya Morh. He further deposed that getting the information he (PW 6) along with other police personnel arrived at Barheya Morh and found the dead body of Kashi Nath Singh (deceased) lying there. He recorded the fardbayan of deceaseds son Ajay Kumar Singh (informant) there and the informant signed the same. The fardbayan is Ext. 6. He inspected the dead body and prepared the inquest report in presence of witnesses Amar Singh and Bir Bahadur. He further deposed that the dead body was lying opposite towards east of sweetmeat shop of Tapeshwar Sah situated adjacent west of the pitch road there. At paragraph 2 he clarified the place of occurrence saying that the P.O. is adjacent east of sweetmeat shop of Tapeshwar Sah at Barheya Morh. He also deposed that he seized 12 bore empty cartridges and paper wad from the place of occurrence. He has found pakar tree at a distance of 7 feet from that place of seizure. At paragraph 8 of his cross- examination he has stated that first of all Chaukidar Harihar Raut had informed him about the occurrence. At paragraph 9 he deposed that witness Amla Singh (PW 3) had not staled before him that he (PW 3) had been blood on the body of accused Manoj Singh, Sunil Singh and Raj Narayan Thakur. At paragraph 9 the I.O. further deposed that witness Amla Singh (PW 3) had not stated before him that when he had asked Ajay Singh (informant) as to what had happened he (informant) had stated before him (PW 3) that Manoj Singh, Sunil Singh, Raj Narayan Thakur, Baleshwar Singh and Rajeshwar Singh had killed Kashi Nath Singh (deceased) by gun shot and that thereafter they fled away. In paragraph 10 the I.O. deposed that Ajay Singh (informant) had not stated before him that on hearing cry of his father he looked back and saw the occurrence. At paragraph 13 of his evidence the I.O. deposed that there are 10-12 shops at Barheya Morh and that is a frequently visited place. He also deposed that he had not inquired about the occurrence from any of the independent witness there. 8. PW 2 Sadique Mian who is branded by the prosecution as a hostile witness has deposed that on the relevant day of occurrence it was at 2 p.m. while he was deputed on duty in Section 145, Cr PC proceeding on the disputed land of Ganesh Sah and Ambika Singh, he saw that people were running amuck. He asked them as to what had happened whereupon they told that shooting had taken place. Hearing this he (PW 2) went to Barheya Morh and saw that many people were there. This witness further deposed that accused Manoj Singh (now dead) was carrying a country made pistol there and he had dashed him away. Then he (PW 2) saw that Kashi Nath Singh (deceased) was lying there dead and his skull had blown off and the brain matter had come out. He (PW 2) further deposed that he had not seen any body assaulting the deceased. Thus according to this witness the occurrence had already taken place before 2 p.m. when he had arrived at the place of occurrence and at that time only accused Manoj Singh (now dead) was present there. The prosecution declared this witness hostile and the attention of this witness was drawn by prosecution towards his previous statement said to have been made before the I.O. Thus the ground for declaring this witness hostile is that this witness has detracted from his previous statement made before the I.O. in support of the prosecution. The prosecution declared this witness hostile and the attention of this witness was drawn by prosecution towards his previous statement said to have been made before the I.O. Thus the ground for declaring this witness hostile is that this witness has detracted from his previous statement made before the I.O. in support of the prosecution. On his attention being drawn this witness deposed that he had not stated before the police that Baleshwar Singh and Sunil Singh carried pistol and that Sunil Singh fired shot from his pistol hitting on the back of the deceased (Kashi Nath Singh) and that Rajeshwar Singh and Raj Narayan Thakur were catching hold of the arms of Kashi Nath Singh (deceased) and that Baleshwar Singh fired from his pistol hitting the head of the deceased and that Manoj Singh (now dead) had fired from his pistol hitting the deceaseds head due to which the skull of the deceased was blown off. This witness has denied the suggestion of prosecution that he had suppressed the real facts. At paragraph 3 of cross-examination this witness deposed that he had received order for guarding the said field which is situated at about 1 km. west of Barheya Morh. At paragraph 5 of cross- examination this witness has deposed that he does not know Rajeshwar Thakur of village Sarar. He further deposed in paragraph 6 that he had not seen the occurrence and that he had not seen accused Baleshwar, Sunil and Raj Narayan at the place of occurrence. 9. It appears that the prosecution has branded the PW 2 Sadique Mian a Chaukidar, hostile on the ground that he detracted from his previous statement as made before the I.O. in support of the prosecution case. The APP did also draw the attention of this witness (PW 2) towards the previous police statement said to have been made by this witness before the police. But this witness categorically denied that he had made any such statement before the police. The prosecution could have been justified in its attempt to declare the PW 2 a hostile witness had the prosecution been able to prove by examining the I.O. the statement of this witness (PW 2) as is said to have been made before the police. But this witness categorically denied that he had made any such statement before the police. The prosecution could have been justified in its attempt to declare the PW 2 a hostile witness had the prosecution been able to prove by examining the I.O. the statement of this witness (PW 2) as is said to have been made before the police. In this case the I.O. has been examined as PW 6 but it is curious to find that the prosecution did not prove any statement through the evidence of the I.O. as is said to have been made by the PW 2 before the police. In whole of his evidence the I.O. did not say anywhere that the PW 2 had given any statement before him as is said to have been made by the prosecution and which is relied upon by the prosecution for declaring the PW 2 a hostile witness. Therefore, under these circumstances it is found that the prosecution has no ground to say that the PW 2 is a hostile witness due to his having detracted from his any previous statement made before the police in support of the prosecution case. Therefore, the evidence of PW 2 cannot be kept aside on the ground that he happens to be a hostile witness. On reading the evidence of this witness (PW 2) it is felt that due importance and reliance has to be given to the testimony of this witness. 10. The PW 4 Sanjay Kumar Singh is the informant himself. He deposed that on 1.5.1992 at about 3.30 p.m. he, along with his father Kashi Nath Singh (deceased) had gone to Gopalganj for purchasing house hold articles and while returning from there he and his father (deceased) came to Barheya at about 3.15 p.m. His father asked him to proceed further to home saying that he will came later after taking tea there. He (PW 4) proceeded for his home. In the meantime his father (deceased) raised hulla whereupon he looked back and saw the accused Manoj Singh (now dead) Baleshwar Singh, Sunil Singh, Raj Narayan Thakur and Rajeshwar Singh all were beating his father with fists and slaps. Manoj Singh, Sunil Singh and Baleshwar Singh carried country made pistol. He (PW 4) proceeded for his home. In the meantime his father (deceased) raised hulla whereupon he looked back and saw the accused Manoj Singh (now dead) Baleshwar Singh, Sunil Singh, Raj Narayan Thakur and Rajeshwar Singh all were beating his father with fists and slaps. Manoj Singh, Sunil Singh and Baleshwar Singh carried country made pistol. Accused Raj Narayan Thakur and Rajeshwar Singh were catching hold of the deceased by both his arms and Manoj Singh and Baleshwar Singh and Sunil Singh were assaulting him by fists and slaps. He further deposed that accused Sunil Singh fired from his country made pistol hitting on the back of the deceased. Then Baleshwar Singh fired shot hitting the deceaseds head and thereafter Manoj Singh fired shot as a result of which the deceaseds skull was blown off. The occurrence took place two steps south of pakar tree near Barheya Morh. He further deposed that Daroga had recorded his fardbayan on which he had put his signature and Amla Singh (PW 3) had also signed the fardbayan. He also deposed that Daroga had also prepared the inquest report of the dead body. At paragraph 8 of his cross- examination he deposed that his father Kashi Nath Singh (deceased) was accused in the case relating to the murder of the father of accused Manoj Singh (now dead). At paragraph 9 he further deposed that the deceased had remained in custody in that murder case. At paragraph 22 he deposed that he had no kind of enmity with accused Raj Narayan Thakur. Rajeshwar Singh and Baleshwar Singh. At paragraph 18 of his evidence he categorically deposed that at the time when Sunil had fired shot hitting on the back of the deceased the accused Raj Narayan Thakur and Rajeshwar Singh were catching hold of both the arms of the deceased. At paragraph 6 of his evidence he tried to explain about the non-exarsination of witness Kailash Singh saying that Kailash Singh was ailing. At paragraph 16 he deposed that the occurrence took place at about 25-30 steps south cf Barheya Morh and that the P.O. situates infront of Tapeshwar Sahs sweetmeat shop situated at a distance of 5-7 steps west of the place of occurrence. Thus the occurrence is said to have taken place close to and infront of the shop of Tapeshwar Sah there. Thus the occurrence is said to have taken place close to and infront of the shop of Tapeshwar Sah there. In paragraph 18 the informant deposed that about 50-60 persons were standing there and he (informant) also deposed that those persons might have seen the occurrence. The informant has stated in his evidence that hearing the cry of his father (deceased) he had looked back and then he had seen the assault, but the I.O. has deposed that Ajay Kumar Singh (informant) had "not stated before him that hearing the cry of his father (deceased) he (informant) had looked back and saw. Thus there is omission in the statement before the police so far this portion of the evidence of informant is concerned. 11. PW 3 Amla Prasad Singh deposed that on 1.5.1992 at 3.30 p.m. while he was at darwaja of his house situated at a distance of 5 bigha from Barheya Morh he heard the sound of firing shot and proceeded towards that direction and while he was on the way he again heard the sound of another shot. Then he says that he reached near Barheya Morh and saw that Manoj Singh (now dead) Sunil Singh and all were carrying gun in their hands fleeing away shouting the slogan "Jai Kali" and that there were marks of blood on their body. He further deposed that two steps south of the chabutra under the pakar tree near Barheya Morh, Kashi Nath Singh (deceased) was lying writhing and his skull had been blown off and then the deceased died. He further deposed that Ajay Kumar Singh (informant) and Sadique Mian (PW 2) were present there and when he asked as to how it all happened Ajay Singh had disclosed that Manoj Singh, Sunil Singh, Raj Narayan Thakur, Baleshwar Singh and Rajeshwar Singh had killed the deceased by gun fire and then they fled away. This witness further deposed that the officer in-charge of Barauli P.S. had come and he had recorded the fardbayan of the informant. This witness further deposed that the officer in-charge of Barauli P.S. had come and he had recorded the fardbayan of the informant. At paragraph 6 of his cross-examination on his attention being drawn towards his statement before the police this witness claimed that he had stated before the police about having learnt from the informant about the name of accused Manoj Singh, Sunil Singh, Raj Narayan, Baleshwar and Rajeshwar as assailants of the deceased and that he had seen marks of blood on the body of Manoj Singh, Sunil Singh and Raj Narayan Thakur at the time of their Heeding, But the I.O. (PW 6) at paragraph 9 deposed that the PW 3 had not given any such statement before him. Thus there is omission to show that this witness (PW 3) had not stated before the police that he had seen marks of blood on the body of Manoj, Sunil and Raj Narayan and that the informant had disclosed before this witness the names of the accused Manoj Singh, Sunil Singh, Raj Narayan Thakur, Baleshwar Singh and Rajeshwar as assailants of the deceased. This is a vital omission and this indicates that the evidence of this witness on this point is an exaggeration of subsequent addition in his evidence. At paragraph 16 of cross-examination this witness deposed that he had gone to the P.O. walking on foot and that after he had walked for about 5-7 minutes then he had seen the accused. This evidence shows that this witness was at a considerable distance from the place of occurrence and that he could not see any part of the occurrence and he came to the P.O. after the occurrence. At paragraph 3 of his evidence the PW 3 has deposed that Ramanand, the father of accused Manoj Singh (now dead) had been killed and in the murder case relating to that killing, Kashi Nath Singh (deceased) was an accused. At paragraph 4 this witness admitted that in that murder case he himself and his two sons Uday Singh and Ganesh Singh were also accused. He further admitted at para 3 that the grandfather of accused Sunil had filed a case against him under Section 307 of the Indian Penal Code and in which case he had been convicted but acquitted in appeal by the High Court. He further admitted at para 3 that the grandfather of accused Sunil had filed a case against him under Section 307 of the Indian Penal Code and in which case he had been convicted but acquitted in appeal by the High Court. At paragraph 3 he further admitted that the said Mukha Rai had also filed a case of forgery on his (PW 3s) brother Ballam Rai and Kanchan Rai and in thai case the two brothers had undergone sentence. Thus the above evidence in paragraphs 3, 4, and 8 shows that this witness is inimical to Manoj Singh (now dead) and Sunil Singh due to the said previous litigation. At paragraph 11 of his evidence he deposed that there are 20-25 shops at Barheya Morh and the shops remain open since morning up to 6-7 p.m. He also deposed that usually 200/300 persons remain present at the Barheya Morh. Thus examining the evidence of this witness it appears that he is not an eye witness to the occurrence he deposed that he had learnt from the informant at the P.O. that the accused persons had committed the murder but this fact was not stated by this witness in his statement before the police which was recorded after the occurrence. This witness is also inimical to the accused Manoj Singh (now dead) and Sunil Singh due to the previous stated litigation. 12. During the argument the learned counsel for the appellants referred to the evidence of PW 2 Sadique Mian who has been declared hostile by the prosecution and he argued that the evidence of this witness has to be given full weightage as because prosecution did not prove that this witness had earlier given any statement before the police supporting the case of the prosecution. The learned counsel seems to be correct in his submission. The prosecution while examining the I.O. did not prove any statement given by this witness before the police in support of the case of the prosecution. As already discussed in" preceding paragraph also the evidence of this witness (PW 2) cannot be kept apart without giving any consideration to it but under the facts and circumstances of the case this witness has to be relied on as a natural and trust worthy. 13. As already discussed in" preceding paragraph also the evidence of this witness (PW 2) cannot be kept apart without giving any consideration to it but under the facts and circumstances of the case this witness has to be relied on as a natural and trust worthy. 13. The learned counsel for the appellants argued that the prosecution has not been able to prove beyond reasonable doubt the time of occurrence as well as the manner of occurrence. As to the time of occurrence it was pointed out that the PW 2 stated that while hearing the sound of firing he had reached at the place of occurrence. At 2 p.m. the occurrence had already taken place and only the accused Manoj Singh (now dead) was present there who, dashing this witness had fled away from there. Thus according to this witness the occurrence had already finished before 2 p.m. but the evidence of PW 4 (informant) who happens to be the only eye witness in the case is that the occurrence took place at 3.30 p.m. His evidence is that leaving his father at Barheya Morh he (informant) had left for his house but hearing the cry he had come back to Barheya Morh and saw the occurrence. The informant (PW 4) was inimical to accused Manoj Singh in view of the evidence that his (informant) father (deceased) was an accused in the murder case relating to the murder of Ramanand Singh, the father of accused Manoj Singh The learned counsel further argued that according to fardbayan itself the informant claimed that accused Manoj Singh was trying to take revenge for the murder of his father, therefore, it was argued that the informant was obsessed with this idea and, therefore, he implicated accused Manoj Singh due to suspicion, hours later without seeing the actual occurrence. Thus there are infirmities in the evidence of the informant which adversely affect his testimony. The PW 3 Amla Prasad Singh is not an eye witness. He (PW 3) stated the time of occurrence being 3.30 p.m. He stated that at the place of occurrence he learnt from the informant that accused persons had committed the occurrence. But it has already been discussed above that in his earlier statement given before the police this witness had not stated that the informant had disclosed to him that the accused persons had committed the occurrence. But it has already been discussed above that in his earlier statement given before the police this witness had not stated that the informant had disclosed to him that the accused persons had committed the occurrence. Besides this, this witness is inimical to the accused Manoj Singh and Sunil Singh due to the cases and litigations as discussed in the preceding paragraphs. Any way this witness says about the time of occurrence being 3.30 p.m. Now taking the evidence of the three witnesses who have been examined on the point of occurrence. PW 2 says that the occurrence had already taken place before 2 p.m. whereas the PW 3 and 4 claimed that the occurrence took place at 3.30 p.m. Thus there is serious contradictions in the evidence of witnesses on the point of the time of occurrence. 14. The evidence of the I.O. is also important to the discussed on the point of time of occurrence. According to the First Information Report the place of occurrence situates a( a distance of 4 km. from Barauli Police Station. The I.O.(PW 6) deposed in his examination in chief that on 1.5.1992 at 3.35 p.m. Chaukidar Harihar Raut came to him and he informed him that one person had been killed by fire shot at Barheya Morh. I.O. further deposed that receiving this information from Harihar Raut he proceeded for the place of occurrence. It is not the case of the prosecution that any telephonic message was received at the police station. Had any one made a telephonic call from the place of occurrence it could be presumed that information was. received at the police station immediately after the occurrence, but it is not so and the definite case is that Chaukidar Harihar Raut came to the Police Station and he informed that one person had been killed by fire shot at Barheya Morh. Under natural course of events this has to be considered that Chaukidar Harihar Raut had come from the. place of occurrence to the Police Station and had informed the Officer Incharge about the occurrence. Admittedly the distance from the place of occurrence to the Police Station is 4 km. and it cannot be accepted that Chaukidar Harihar Raut had covered the distance of 4 km. place of occurrence to the Police Station and had informed the Officer Incharge about the occurrence. Admittedly the distance from the place of occurrence to the Police Station is 4 km. and it cannot be accepted that Chaukidar Harihar Raut had covered the distance of 4 km. within five minutes so as to inform the Officer Incharge of the Police Station at 3.35 p.m. This would also show that the occurrence did not take place at 3.30 p.m. but before that time. The evidence of the PW 2 Chaukidar Sadique Mian is that occurrence had already finished at 2 p.m. 15. Thus reasonable doubt is entertained whether the occurrence did take place at 3.30 p.m. or not. Therefore, it has to be held that the prosecution failed to prove that the occurrence did take place at 3.30 p.m. 16. As to the manner of occurrence the appellants learned counsel referred to injury No. (iii) on the deceased. The injury was lacerated wound of the size l/2"x 1/4" on right middle finger. The doctor opined that the injury was possible by hard blunt substances like lathi. The learned counsel argued that according to the case of the prosecution only firearm injuries were caused to the deceased and that there is no case that any hard blunt weapon was used for assaulting the deceased. It was also argued that prosecution has not been able to explain as to how the injury No. (iii) was caused. Hence it was further argued that under such circumstances it is indicated that the injury No. (iii) was caused in a manner otherwise than the manner as said by the prosecution. Since the prosecution is not explaining the existence of injury No. (iii), its existence creats doubt over the manner of occurrence. 17. As to the injury No. (i), i.e. half of the vault of the skull was completely blown off with portion of brain matter and the adjoining hair was found partially burnt. The appellants learned counsel referred to paragraph 2 of the doctors evidence, where the doctor stated that he could not say whether the injury No. (i), was caused by bullet or pellet as no bullet or pellet was found in wound. The doctor also stated that the injury could also be possible by bomb. The appellants learned counsel referred to paragraph 2 of the doctors evidence, where the doctor stated that he could not say whether the injury No. (i), was caused by bullet or pellet as no bullet or pellet was found in wound. The doctor also stated that the injury could also be possible by bomb. The learned counsel argued that in the light of this evidence of the doctor a doubt is entertained that the injury No. (i), was caused by pistol shot as said by the prosecution. 18. The appellants counsel referred to injury No. (iv), i.e. multiple pea size wounds oval were scattered on the back between the thoracic vertebra III and Lumbar vertebra IV. Margins of the wound were inverted with blackening around them. On dissection of the back 10 pellets were recovered. The. learned counsel submitted that it is the admitted case of prosecution that at the time when this injury No. (iv) was caused, the accused Rajeshwar Singh and Raj Narayan Thakur had caugnt the deceased, seated, by catching hold of both his (deceaseds) arms. As to the area of injury No. (iv) the learned counsel pointed out that as many as ten pellets were recovered from the pea size injuries scattered on the back between the thoracic vertebra III and Lumbar vertebra IV, The learned counsel pointed out that the area between thoracic vertebra III and Lumbar vertebrae IV covers the area between bottom of neck to the waist of body which covers an area of about one cubit i.e. about 18 inches. The learned counsel referred to Modis Medical Jurisprudence 21st Edition (1988) page 269 where Modi has opined that "At a distance of 1 to 3 feet small shot make a single aperture with irregular and lacerated edges corresponding in size to the bore of the muzzle of the gun, as the shot enter as one mass but are scattered after entering the wound and cause great damage to the internal tissues. The skin surrounding the wounds is blackened, scorched and tattooed, with unburnt grains of powder. On the other hand, at a distance of 6 feet the central aperture is surrounded by separate openings in an area of about 2 inches in diameter by a few pellets of the shot which spread out before reaching the mark. The skin surrounding the wounds is blackened, scorched and tattooed, with unburnt grains of powder. On the other hand, at a distance of 6 feet the central aperture is surrounded by separate openings in an area of about 2 inches in diameter by a few pellets of the shot which spread out before reaching the mark. The skin surrounding the aperture may not be blackened or scorched, but is tattooed to same extent". At a distance of twelve feet the charge of shot spreade widely and enters the body as individual pellets producing separate openings in an area of five to eight inches in diameter depending on the choke..." "A rule of thumb in long uses is that the diameter of the spread of the shot pattern on the skin in inches is roughly equal to the distance from the muzzle in yards." 19. Referring to the above observation of Modi the learned counsel argued that the spread of pellets in area of inches corresponds to the number of feet from which the shot is fired. Here the learned counsel pointed out that in this case the pellets have spread on the deceaseds back in an area of about 18 inches hence the learned counsel argued that the shot was fired from a long distance. The learned counsel referred to the situation during which this injury was caused. He argued that according to the case of the prosecution the fire shot causing this injury was caused while two of the accused Raj Narayan Thakur and Rajeshwar Thakur were catching hold of the deceased by both his arms. In this situation, the learned counsel argued that while two of the co-accused had caught hold of the deceased by his arms, thereby quite near to him, a third accused would not dare to fire shot from such long distance as suggested by the spread of the pellets. Moreover the case of prosecution is that all the accused had surrounded the victim at the time of firing, hence the shots must have been fired from near quarters which however, is believed by the aforesaid findings. 20. The learned counsel for the appellants argued that according to the informant himself (PW 4 paragraph 18) 50-60 persons were present there during the occurrence about whom the informant stated that they would have seen the occurrence. 20. The learned counsel for the appellants argued that according to the informant himself (PW 4 paragraph 18) 50-60 persons were present there during the occurrence about whom the informant stated that they would have seen the occurrence. Further according to PW 3 paragraph 11 there are 20-25 shops at Barheya Morh which remain open since morning to 6/7 p.m. and that usually 200 and 300 persons remain present at the Barheya Morh and according to the I.O. also (PW 6 paragraph 13) Barheya Morh is frequently visited by the people and 10-20 shops are situated there. At this paragraph the I.O. admitted he had not inquired about the occurrence from any independent witness at Barheya Morh. Admittedly the occurrence has taken place infront of the sweetmeat shop of Tapeshwar Sah situated at Barheya Morh. Referring to the situations from the above evidence the learned counsel argued that the place where occurrence is said to have taken place is frequently visited place and several shopkeepers and village people were present there during the occurrence but no independent witness has been examined by the prosecution. The learned counsel further argued that as a matter of fact only the informant has been examined as eye witness to the occurrence. It was argued that when other independent witnesses were available non-examination of such witnesses will go adverse against the case of the prosecution and it has to be considered that the prosecution deliberately did not examine independent witnesses for the reason that if examined they would not support the prosecution case. Under the facts and circumstances of the case this submission of the learned counsel is cogent and acceptable. 21. Thus in view of the facts and circumstances and the discussion made above it is found that prosecution has failed to prove the time and manner of occurrence beyond doubt. Therefore the charges are held not proved beyond reasonable doubt and hence the appellants deserve to be acquitted of the charge. 22. In the result the appeals are allowed and the order of conviction and sentence passed by the trial Court is hereby set aside, The appellants are discharged from the liabilities of the bail bonds executed by them. Appellants Sunil Singh and Baleshwar Singh who are in jail custody are ordered to the released forthwith if not wanted to be detained in any other. PRABHAT KUMAR SINHA, J. 23 I agree.