Judgment C.M.Prasad, J. 1. The sole appellant Puna Chauhan stands convicted under Section 302 of the Indian Penal Code for allegedly causing death of deceased Siyaram Chauhan and has been sentenced to undergo rigorous imprisonment for life. The appellant further stands convicted under Section 307 of the Indian Penal Code also for allegedly attempting to kill Ram Briksha Chauhan (PW 1) and he has been sentenced to undergo rigorous imprisonment for seven years under this count by the impugned judgment dated 11th October, 1999 passed by the 1st. Addl. Sessions Judge, Nawadah in S.T. No. 277 of 1997/33 of 1997. However, both the sentences are to run concurrently. 2. In this case, there are two fardbeyans, one recorded at the place of occurrence on the statement of Mithilesh Chauhan (PW 2), brother of injured Ram Briksha Chauhan (PW 1). The next fardbeyan was recorded on the statement of injured Ram Briksha Chauhan (PW 1) in Sadar Hospital, Nawadah. 3. The statement of Mithilesh Chauhan was recorded by S.I. of Police G.P. Singh on 21st December, 1996 at 2.30 A.M. at the baithaka of his new mud-built house wherein he stated that in the night of 20th December, 1996, after taking his meal, he was sleeping in the old house and at about 11.30 in the night, he woke up on hearing the sound of firing from his old mud-built house and immediately, he also heard weeping sound of his mother Bhatni Devi and then running he went to his new-mud- built house and he saw in torch light the appellant Puna Chauhan, the Nati of Puna Chauhan and one unknown fleeing away. Then on going inside the house, he saw his uncle Siyaram Chauhan (the deceased) lying there dead with fire-shot injury on his forehead and he also saw his brother Ram Briksha Chauhan (PW 1) in injured condition with fire shot injury near his neck and he took him to hospital. Ram Briksha Chauhan was unconscious and he (Mithilesh Chauhan) further stated in his fardbeyan that Ram Briksha Chauhan would say about the occurrence on regaining consciousness. About the cause of occurrence, Mithilesh Chauhan stated in his fardbeyan that land dispute was going on with his cousin Binod Chauhan. The appellant is said to be the father-in-law of Binod Chauhan. Ram Briksha Chauhan was unconscious and he (Mithilesh Chauhan) further stated in his fardbeyan that Ram Briksha Chauhan would say about the occurrence on regaining consciousness. About the cause of occurrence, Mithilesh Chauhan stated in his fardbeyan that land dispute was going on with his cousin Binod Chauhan. The appellant is said to be the father-in-law of Binod Chauhan. Mithilesh Chauhan also claimed in the fardbeyan that his mother Bhatni Devi and others had seen the occurrence and they would say about the same. 4. The fardbeyan of Ram Briksha Chauhan was recorded by S.I. Shamsher Singh on 21st December, 1996 at 9.15 a.m. in Sadar Hospital, Nawadah where he was lying in injured condition. He stated in his fardbeyan that in the preceding night at about 12.00 Oclock while he was sleeping at his house, his cousin, father-in-law Puna Chauhan (the appellant) and the son-in-law of Puna Chauhan as well as his Nati whose name he did not know, suddenly came there whereupon he (Ram Briksha Chauhan) enquired as to what the matter was. On this, Puna Chauhan (the appellant) fired pistol on him due to which he received injury and started writhing in pain. Hearing the sound of firing, his (Ram Brikshas) uncle Siyaram Chauhan (the deceased) who was also sleeping there, woke up, but Puna Chauhan fired shot on him and the Damad and Nati of Puna Chauhan who were carrying dagger, assaulted him (the deceased) with dagger. Due to the injuries, Siyaram Chauhan died on the spot. The assailants fled away and his relatives brought him to the hospital where he (Ram Briksha) was treated and he gave his statement. The land dispute relating to partition in the family has also been stated by Ram Briksha Chauhan as the cause of occurrence. 5. As many as ten witnesses were examined by the prosecution. The defence has also examined three witnesses. The appellant has taken the defence of alibi also. DW-1 Suresh Chauhan has come to depose in favour of appellants ground of alibi He deposed that he was blessed with a son and on 20th December, 1996, it was occasion of Sattaisa in his house and that appellant Puna Chauhan had gone to his house for attending the function and that he had stayed there till 11.00 Oclock in the night and thereafter he had left for his house. 6. 6. It is curious that PW 2 Halki Devi who is the wife of the deceased and PW 3 Kumari Phula Sinha who is the daughter-in-law of the deceased haye deposed as defence witnesses saying against the case of prosecution alleging that it was the informant Mithilesh Chauhan himself who had called the deceased and got him killed. 7. DW-2 Halki Devi, wife of deceased Siyaram Chauhan deposed in her evidence that her Jaut Mithilesh Chauhan (PW 2), Ramashray, Ashok, Ram Briksha and Rajeshwar Chauhan had killed the deceased in a night in the month of Agraharu About the cause of killing, she deposed that her husband (the deceased) had sold 14 katha of land to Mithilesh Chauhan (PW 2) and others and that only half of the sale money was paid and half was still to be paid and it was due to this that Mithilesh Chauhan (PW 2) and Ram Briksha Chauhan called her husband (the deceased) saying that some relatives had come and the deceased went with them but he did not return back and she learnt that in that night they killed her husband. In the cross-examination, she stated that the said sold land was being cultivated under the possession of Bhatni Devi. Bhatni Devi is the mother of Mithilesh Chauhan (PW 2), as admitted in his fardbeyan. In her cross-examination, she had denied the suggestion given by the prosecution that Puna Chauhan had killed her husband. Thus, DW-2 claims that Mithilesh Chauhan (PW 2) had conspired and killed her husband (the deceased). 8. DW-3, daughter-in-law of the deceased similarly deposed that in the night of 20th December 1996 at about 8:00 p.m., Mithilesh Chauhan (PW 2) came to her house, he called the deceased and took him away with him saying that some relatives had come. She further deposed that her father-in-law (the deceased) did not come back and in the ensuing morning, she heard hulla that Siyaram (the deceased) had been killed. She claimed at Para-3 of her evidence that Mithilesh Chauhan (PW 2) and his brothers killed the deceased. At Para-7 of her cross-examination, she deposed that on hulla she went to the house of Mithilesh (PW 2) and saw the dead body of her father-in-law (the deceased) there. She claimed at Para-3 of her evidence that Mithilesh Chauhan (PW 2) and his brothers killed the deceased. At Para-7 of her cross-examination, she deposed that on hulla she went to the house of Mithilesh (PW 2) and saw the dead body of her father-in-law (the deceased) there. At Para-11 she further deposed that Mithilesh Chauhan (PW 2) and his brother Ramashray Chauhan (PW 5) had threatened her that she would be murdered, if she went to Police. At Para-3 of her evidence, she deposed that she had gone to Police, but her case was not taken there, hence, she had filed complaint in Court which was sent to Police for institution of the case. She further deposed that her case was dismissed and she had also filed appeal in the High Court against that dismissal. Learned A.P.P. argued that the case filed by DW-3 was dismissed. Learned counsel for the appellant replied that, no doubt, the case was dismissed, but DW-3 says that she had approached the High Court against that dismissal. It was also argued that, no doubt, the case filed by DW-3 was dismissed, but the defence evidence, as adduced before the trial Court, is sufficient to probablise the defence version. The learned counsel continued to argue that like the prosecution, defence is not required to prove its case beyond the shadow of doubt, but whatever is required for the success of defence is that the defence is able to show that the defence version is also probable. 9. Out of prosecution witnesses, PW 1 Ram Briksha Chauhan is the injured as well as the informant. PW 2 Mithilesh Chauhan is an eye witness who also figures as the next informant. PW 3 Gauri Shankar Chauhan is a seizure witness who proved the signature on the seizure-list, but he does not say about the factum of any particular seizure and he deposed in his cross-examination that the seizure-list was not prepared in his presence. PW 4 Ram Padarath Chauhan is also a seizure witness and he has deposed quite similar to PW 3. PW 5 Ramashray Chauhan and PW 7 Ashok Chauhan have been examined as eye witnesses. PW 6 Shanti Devi was also examined as eye witness, but after the recording of her examination-in-chief, she did not reply any question during her cross-examination, hence, the trial Court has expunged her evidence. PW 8 Dr. PW 5 Ramashray Chauhan and PW 7 Ashok Chauhan have been examined as eye witnesses. PW 6 Shanti Devi was also examined as eye witness, but after the recording of her examination-in-chief, she did not reply any question during her cross-examination, hence, the trial Court has expunged her evidence. PW 8 Dr. Anandi Kumar Manjhi had examined the injuries on injured Ram Briksha Chauhan (PW 1). PW 9 Dr. Shiva Nand Das had held the P.M. Examination on the dead body of deceased Siyaram Chauhan. PW 10 Guneshwar Prasad Singh is the I.O. of the case. 10. In order to appreciate the ocular evidence, it is proper to discuss the medical evidence as well as the evidence of the I.O. first. PW 9 Dr. Shiv Dayal Das testified that on 21st December 1996 at 3:00 p.m. he had conducted the P.M. Examination on the dead body of deceased Siyaram Chauhan and found the following ante mortem injuries on his person: (i) Lacerated wound on forehead left side 1" above eye brow measuring 1.1/2" x 1.1/2" x.cavity deep, margin irregular and inverted, charred through which brain matter and blood coming out. (ii) Multiple marks of tattooing present over both sides of face, forehead, nose, left ear. On dissection, all the viscera were found intact and pale, Frontal bone on left side fractured in size, shape and site corresponding to external injury no. 1. Brain matter and blood vessels on left side lacerated in the form of a tunnel for external injury no. (i) to occipital part of the brain (cerebellum). Blood clots found in sub-dural space and inside brain. A foreign body like distorted (metallic) bullet was found in posterior cavity of brain. The foreign body was sealed in a glass bottle, labelled and handed over to Police along with P.M. Report. Stomach empty almost, bladder empty. Heart on both sides empty. Cause of injuryfirearm substance. Cause of deathshock and hemorrhage due to injury no. (i). Time elapsed since death between 6 to 36 hours. He proved the P.M. Report (Ext-4) which is in his pen and signature. 11 PW 1 Dr. Stomach empty almost, bladder empty. Heart on both sides empty. Cause of injuryfirearm substance. Cause of deathshock and hemorrhage due to injury no. (i). Time elapsed since death between 6 to 36 hours. He proved the P.M. Report (Ext-4) which is in his pen and signature. 11 PW 1 Dr. Anandi Kumar Manjhi had examined the injuries on the injured Ram Briksha Chauhan (PW 1) on 21st December 1996 at 4:30 a.m. He deposed that on examining the injured, he found the following injuries on his person: (i) Pire injury wound of entry measuring about 1/2" over right side of upper chest 3" below the mid clavicle lineburnt powder mark. i.e. tattooing around the wound of entry wound of exit 1.1/2" x 1.21/2" over right side of the back at upper border of scapula. (ii) Incised wound 3" x 1" over right side of the chin. (iii) Incised wound 2.1/2" x 1" over right side of the neck. Injury no. (i) is grievous in nature and caused by firearm weapon, such as pistol. Injury nos. (ii) and (iii) are simple in nature caused by sharp cutting weapon such as dagger. Age of injuries within 24 hours. The Doctor proved the injury report in his writing and signature. The Injury report was marked Ext-3. Thus, according to the doctor, injured Ram Briksha Chauhan (PW 1) had received the aforesaid injuries caused by pistol and dagger. 12. PW 10 Guneshwar Prasad, S.I. of Police is the investigating officer. He states that on some confidential information, he reached at the P.O. on 21st December 1996 at 2:30 a.m. and recorded the fardbeyan of Mithilesh Chauhan (PW 2). The fardbeyan had been proved as Ext-5. He sent the fardbeyan to the Police Station for institution of the F.I.R The F.I.R. is Ext-7. He also deposed about preparing the inquest report of the dead body. The inquest report is Ext-8. Then he says that he sent the dead body for P.M. Examination. He inspected the P.O. which was a mud built Khapraposh. building. It had no door-Shutters and in the Dyorhi (Parlour) of the building straw was found scattered on the ground and the dead body of deceased Siyaram Chauhan was found there. The I.O. also found blood below the straw. He inspected the P.O. which was a mud built Khapraposh. building. It had no door-Shutters and in the Dyorhi (Parlour) of the building straw was found scattered on the ground and the dead body of deceased Siyaram Chauhan was found there. The I.O. also found blood below the straw. He specifically mentioned at Para-7 that in that room he had not found any lantern or any other light in either working or broken condition. 13. PW 2 Mithilesh Chauhan who lodged the first F.I.R. under Ext-2 had almost repeated the statement, as given in his fardbeyan. He states in his evidence that on hearing the cry of his mother, he had gone to his new built house which is the P.O. house. At Para-22 of his evidence, he further deposed that when he had reached at the P.O., his mother was present there at that time. He further deposed that while he was proceeding towards the P.O., he had seen the appellant. At Para-6 of his evidence, he deposed that he had seen the appellant in torch light but he admitted that he had not given that torch to the I.O. He has stated that on going to the P.O., he had seen his brother Ram Briksha Chauhan (PW 1) lying there in injured condition with wound on his neck and he took him first to the Police Station and from there to the hospital. At Para-8, he deposed that along with him (PW 2), his mother, Ramashray, Ashok and Ram Briksha (PW 1) had also gone to the Police Station and at Para-9 he deposed that he had taken his brother Ram Briksha from the P.O. to the hospital. He further deposed that any statement of his mother was not recorded at the Police Station. Thus, according to this witness, any statement of his mother who was already present at the P.O. from before and who was crying and on whose cries PW 2 had arrived at the P.O. and who would have been the most natural and competent witness to the occurrence, was not recorded at the Police Station. At Para-10 of his evidence PW 2 deposed that deceased Siyaram Chauhan used to wear shoes and deceaseds shoes lay at the P.O. and it was also lying there when Police had arrived there. At Para-10 of his evidence PW 2 deposed that deceased Siyaram Chauhan used to wear shoes and deceaseds shoes lay at the P.O. and it was also lying there when Police had arrived there. But this has to be remembered here that the I.O. (PW 10) at Para-7 has deposed that while inspecting the P.O., he had not found any shoes or sandles there. According to the case of the prosecution, the deceased was sleeping in the new built house of PW 2. PW 5 at Para-2 has deposed that the deceaseds own house existed at a distance of 150 yards from the P.O. house. PW 2 at Para-13 deposed that Halki Devi was the wife of the deceased and Phula Sinha was deceaseds daughter-in-law and that he (PW 2) had not informed the wife and the daughter-in-law of the deceased about the occurrence. Learned counsel for the appellant argued that PW 2 who happens to be the first informant and who was the nephew of the deceased stated that when the deceaseds own house existed at a distance of 150 yards from the P.O. house, it was the duty or it would have been the most natural conduct of PW 2 to have immediately gone to deceaseds house which situated at a distance of just 150 yards and to have informed his (deceaseds) wife and daughter-in-law about the occurrence, but he (PW 2) did not do it, hence, learned counsel argued that in the light of the defence case, this conduct has to be considered as a circumstance against the case of prosecution. The submissions of the learned counsel carry substantial reasons and are acceptable. PW 2 has further stated at Para-15 that when he had reached at the P.O., his injured brother Ram Briksha Chauhan (PW 1) had become unconscious. Considering the evidence of PW 2 In the light of the infirmity in his evidence, as discussed above. I feel hesitant in relying on him as a truthful and reliable witness. 14. PW 1 Ram Briksha Chauhan is injured himself. Considering the evidence of PW 2 In the light of the infirmity in his evidence, as discussed above. I feel hesitant in relying on him as a truthful and reliable witness. 14. PW 1 Ram Briksha Chauhan is injured himself. He stated in his examination-in-chief that he along with the deceased was sleeping in his house and on hearing some sound, he woke up and saw the appellant and others as named in his evidence and that those persons threatened him to kill and thereafter the appellant fired shot on the deceased and two others assaulted the deceased with dagger. He further said that he too received fire-shot injuries in that assault. At Para-5 he deposed that the house of Siyaram is not a different house, hut a portion of the same house which has been partitioned and in one portion of which, the deceased lived and in another portion of which he (PW 1) lived. Thus, the houses of the deceased and PW 1 were very close and the deceased was sleeping in the house of PW 1. Here the learned counsel for the appellant argued that PW 2 who is the brother of PW 1 at Para-13 has stated that he had not informed the family members of the deceased, which has also to be considered here as an adverse circumstance against the case of prosecution as because the family members who were just in another portion of the building were not informed by PW 2, brother of PW 1 about the occurrence. PW 1 further deposed at Para-2 that for treatment, he had gone to the hospital through the Police Station. Here the learned counsel argued that PW 1 admits that before going to the hospital he had gone to the P.S. and that when he had gone first to the P.S., he ought to have given his statement there as he was an injured witness of the occurrence, but he did not do so and gave his statement subsequently in the hospital at 2:30 a.m., i.e., nearly two and a half hours of the occurrence. Hence, it was argued that the statement of PW 1 which has been recorded in the hospital and which is also one of the fardbeyans of the case, has been recorded after due deliberation and introducing after thoughts to implicate the appellant. Hence, it was argued that the statement of PW 1 which has been recorded in the hospital and which is also one of the fardbeyans of the case, has been recorded after due deliberation and introducing after thoughts to implicate the appellant. In this context, the learned counsel referred to the evidence of PW 5 at Para-3 who stated that injured Ram Briksha Chauhan (PW 1) had always remained conscious. Learned counsel argued that when PW 1 was conscious althrough and PW 1 is also admitting himself that he had gone to the P.S. before going to the hospital, there was nothing to stop PW 1 in giving his statement at the earliest opportunity at the P.S. but he did not do so. The appellants counsel also argued that the occurrence is said to be of mid-night hours and to have taken place inside the room of the house and that PW 1 claims to have seen the appellant, but any means of identification is not being disclosed in his evidence. Therefore, it was argued that without any means of light, the claim of identification is not fit to be accepted. These submissions of the learned counsel for the appellant are also very important and worthy of consideration and acceptance. Hence, in view of such facts, the evidence of PW 1 also does not inspire any confidence. 15. The another eye witness Ramashray Chauhan (PW 5) says to have gone at the P.O. on hulla. This witness states at Para-2 of his evidence that at the time of occurrence, besides the deceased, his (PW 5s) father, Ram Briksha (PW 1) and three children of the family were also sleeping in that very room. Here, the learned counsel also referred to the evidence of PW 2 at Para-22 that his mother was also present at the P.O. from before his arrival. Here, the learned counsel argued that all the witnesses examined by the prosecution are of such nature who say that they had come to the P.O. on hulla. Here, the learned counsel also referred to the evidence of PW 2 at Para-22 that his mother was also present at the P.O. from before his arrival. Here, the learned counsel argued that all the witnesses examined by the prosecution are of such nature who say that they had come to the P.O. on hulla. It was further argued that it has come in the evidence of witnesses that the mother of PW 2 was already there at the P.O. and she was crying and that the three boys of the family were also there and the age of the boys has been mentioned by PW 2 at Para-3 as 7 years, 8 years and 6-7 years and it was argued that the prosecution has not examined such material witnesses who could have been the most natural and competent eye witnesses on the point of occurrence. It was argued that withholding such witnesses by the prosecution, without any reasonable explanation would go against the prosecution with an adverse inference that if produced, such witnesses would not have supported the case of prosecution. PW 5 has deposed at Para-4 that a lantern was lighting in the room and that the accused had broken that lantern. Here, the learned counsel for the appellant referred to the statement of the I.O. (PW 10) at Para-7 that during the inspection of the P.O., he had not found any lantern or other lamp in working or broken condition. Here the learned counsel argued that the I.O. had not found any means of light, hence, he further argued that PW 5 has falsely introduced the story of there being a lantern in the room with a view to establish the claim of identification of the accused. These sub-missions of the learned counsel are also reasonable and acceptable. In view of the facts as discussed above, the evidence of PW 5 does also not remain a reliable and good piece of evidence in support of prosecution case. 16. The last witness who claims to be the eye witness is PW 7 Ashok Chauhan. He deposed that on hearing the sound of firing as well as hulla from the P.O. he went there and saw Ram Briksha Chauhan (PW 1) with firearm injury and Ram Briksha Chauhan disclosed to him that Puna Chauhan (the appellant) and his Natl had fired on him (Ram Briksha Chauhan). He deposed that on hearing the sound of firing as well as hulla from the P.O. he went there and saw Ram Briksha Chauhan (PW 1) with firearm injury and Ram Briksha Chauhan disclosed to him that Puna Chauhan (the appellant) and his Natl had fired on him (Ram Briksha Chauhan). PW 7 who is the brother of injured Ram Briksha Chauhan (PW 1) was sleeping with his three nephews Jeet, Anil and Ganesh Chauhan respectively aged 7 years, 8 years and 6-7 years and that at the time of occurrence, the boys also were raising hulla. Thus, according to this witness, the three boys were awaken at the time of occurrence and they had also raised hulla. At Para-3 he deposed that his brother Ram Briksha (PW 1) had remained conscious all through and at Para-4 he further deposed that he had taken his brother (PW 1) immediately to the Police Station. Thus, according to this witness, injured Ram Briksha was conscious after receiving the injury and he had been taken to the P.S. immediately. The learned counsel for the appellant argued that PW 1 who is the injured witness was taken immediately to the P.S. and then he was taken to the hospital, hence, it was further argued that when he was at the P.S., his statement could have been recorded but it was not so recorded and it was recorded in the hospital after three hours of the occurrence. The learned counsel argued that the delay is fatal because it provided chance of concoction and embellishment. Learned counsel also argued that according to this witness, the three boys were sleeping in the same room and who had raised hulla and who could have been the most natural reliable witness but the prosecution has not examined them and there is no explanation for their non-examination. This witness (PW 7) deposed at Para-4 that in the roof of the P.O. room a lantern was hanging and the Police had seized the lamp for which papers were also prepared and he had signed the paper as a witness. Here, the learned counsel referred to the evidence of the I.O. (PW 10, Para-7) who categorically stated that he had not found any lantern or any lamp in working or broken condition in the room and the learned counsel argued that any kind of lantern was not found there. Here, the learned counsel referred to the evidence of the I.O. (PW 10, Para-7) who categorically stated that he had not found any lantern or any lamp in working or broken condition in the room and the learned counsel argued that any kind of lantern was not found there. Hence, he further argued that PW 7 is not a reliable witness and he falsely introduced the story of a lantern hung in the roof of the room with a view to project the prosecution story as true. In view of the evidence of the I.O. about any lantern having not been found in the P.O. room and also considering the evidence of PW 7 as a whole, I find that this witness cannot be safely relied as a truthful and reliable witness on the point of occurrence. 17. On considering the evidence as adduced by both the sides, the following position emerges : (i) DW-2 Halki Devi wife of the deceased and DW-3 Kumari Phula Sinha, the daughter-in-law of the deceased have come to depose against the prosecution case and they have deposed that PW 2 (informant Mithilesh Chauhan) had called and taken the deceased to his house on the ground that some relatives had come and that thereafter the deceased did not come back. DW-2 (wife of the deceased) had also said in her evidence that PW 2 had purchased land from the deceased for which half of the consideration money was paid by PW 1 and DW-2 claimed that in order to grab the payment of half of the consideration money, PW 2 called the deceased and got him killed. (ii) PW 2 Ram Briksha Chauhan deposed at Page-6 that on hulla, he had run to the P.O. and he had seen the appellant in torch light running away. Thus, this witness claimed to have seen the appellant in torch light while running away. This witness has not produced his torch light before the I.O. (iii) PW 5 at Para-4 and PW 7 at Para-4 claimed in their evidence that the lantern was lighting in the room. PW 7 claimed further that the lantern had been seized by Police but the I.O. (PW 10) at Para-7 categorically deposed that he had not found in the P.O. room any lantern or other lamp in working or broken condition. PW 7 claimed further that the lantern had been seized by Police but the I.O. (PW 10) at Para-7 categorically deposed that he had not found in the P.O. room any lantern or other lamp in working or broken condition. The occurrence is of the night at 11:30 p.m. The prosecution had not been able in successfully proving any means of identification. (iv) PW 2 at Para-10 deposed that the deceased used to wear shoes and his shoes were lying in the P.O. room and which lay there till the arrival of Police there. But, the I.O. (PW 10) at Para-7 deposed that he had not found any shoes or sleepers in the P.O. room. This discrepancy creates doubt as to the location or the situation of the P.O., as claimed by witnesses. (v) None of the prosecution witnesses is direct eye witness on the point of assault caused by the appellant on the injured or the deceased, PW 2 claimed that he had seen the appellant while fleeing away and the remaining claimed that injured Ram Briksha Chauhan had disclosed the name of the appellant as assailant. So far PW 1 is concerned, according to PW 7 he was conscious all through and he was taken first to the police station and then from there to the hospital, where his statement was recorded at 2:30 a.m., i.e. 3 about three hours after the occurrence. The occurrence is of 11:30 p.m. when the injured Ram Briksha Chauhan (PW 1) was conscious all through, his statement could have been recorded easily at the P.S. where he had gone first but it was not so done, hence, a doubt of concoction and embellishment is created in the recording of the statement of the injured in the hospital. (vi) According to PW 2 (Para-27) when he reached at the P.O. he found that his mother was already present there from before and according to PW 5 (Para-22) who is the brother of PW 1, mother was crying at that time. Thus, the mother of PWs-1 and 5 was already present at the P.O. from before and she was crying also. Thus, she was the most natural, truthful and reliable witness to the occurrence. The prosecution has withheld her examination and no explanation had been furnished for the same. Thus, the mother of PWs-1 and 5 was already present at the P.O. from before and she was crying also. Thus, she was the most natural, truthful and reliable witness to the occurrence. The prosecution has withheld her examination and no explanation had been furnished for the same. (vii) According to PWs-5 and 7, three boys of the family, named, Jeet, Anil and Ganesh Chauhan, who were aged respectively 7 years, 8 years and 6-7 years were also sleeping in the P.O. room at that time and during the occurrence, they bad woke up and they were crying also. Thus, these three boys could have been the most natural and truthful witnesses to the occurrence alleged but the prosecution has also withheld their evidence without furnishing any reason for this, due to which an adverse inference has to be called against the case of the prosecution that had these witnesses been produced, they would not have supported the prosecution story. 18. Considering the facts and circumstances of the case and the evidence discussed above as well as the infirmities as discussed, specifically in the preceding paragraph, I find that the prosecution has not been able to prove its case beyond the shadow of reasonable doubt. Accordingly, the charges are held not proved and the appellant is acquitted of the charged levelle against him. 19. In the result, this appeal is allowed, the impugned judgment is set aside and appellant Puna Chauhan who is in custody is directed to be set at liberty forthwith, if not wanted to be detained in any other case. P.K.Sinha, J. 20 I agree.