JUDGMENT M. L. VISA, J.:- This appeal by sole appellant Awadh Yadav is directed against the judgment dated 26.09.2001 and order dated 01.10.2001 passed by IIIrd Additional Sessions Judge, Bhagalpur in Sessions Trial No. 527 of 1999 (trial No. 110 of 1999) convicting the appellant under Section 302 of Indian Penal Code (In short "IPC”) and Section 27 of Arms Act. Appellant has been sentenced to undergo rigorous imprisonment for life without mentioning the Section under which such sentence has been imposed but the finding of Court below, that there is direct allegation of murder against the appellant and allegation has been proved, therefore he is being sentenced to undergo rigorous imprisonment for life, suggests that appellant has been sentenced to undergo rigorous imprisonment for life under Section 302 of IPC No sentence under Section 27 of Arms Act has been passed. 2. Prosecution case as it appears from the Fard-e-bayan of informant Md. Ajaz Ansari (PW 3) recorded by Anil Kumar Srivastava (PW 7). the then Officer - incharge - cum -Inspector. Nath Nagar Police Station on 07.05.1999 at 4 PM at Jawaharlai Nehru Medical College and Hospital (In short "J N M C H”), Mayaganj. Bhagalpur is that on 07.05.1999 at about 8 AM, informant alongnwith Amir Ansari (not examined), Amli Paswan (PW1), Badri Paswan (not examined) and Anil Rajak (not examined) of village - Belkhura proceeded for Manoharpur Bank for receiving money of Indira Awas Scheme by cheque. The informant from village - Belkhuria alongwith Md. Alamgir (PW 4) came to Nath Nagar where he came to know that appellant Awadh Yadav and co-accused persons Devi Dayal Yadav, Janardan Yadav and Vidyanand Yadav had taken deceased Md. Kalim with them to Manoharpur Bank. The informant also after offering Friday prayer along with Md. Alamgir (PW 4) proceeded for Manoharpur Bank at about 1.30 PM and at about 2.15 PM when he and Md. Alamgir (PW 4) were crossing a road through an orchard of Manoharpur village, he heard a loud sound from the turning of road and when he went there running, he saw that appellant had fired on Md. Kalim and was carrying a pistol and on seeing him and Md. Alamgir, the appellant became nervous and in the meantime, co -accused Devi Dayal Yadav, Janardan Yadav and Vidyanand Yadav also came from nearby places and, thereafter, they along with appellant started running away. Kalim and was carrying a pistol and on seeing him and Md. Alamgir, the appellant became nervous and in the meantime, co -accused Devi Dayal Yadav, Janardan Yadav and Vidyanand Yadav also came from nearby places and, thereafter, they along with appellant started running away. In the meantime, Md. Shakil Ansari (not examined) and Md. Amir Ansari (not examined), who were coming from the side of Manoharpur Bank, came there to whom informant and Alamgir told that appellant and co-accused Janardan Yadav, Devi Dayal Yadav, Vidyanand Yadav and his other companions had fired on deceased. Thereafter, informant and Md. Alamgir (PW 4) put the deceased who was at that time injured on his own scooter and by pushing the scooter brought him to the house of Md. Alam (not examined) and from there took him to Mayaganj Hospital where deceased died. About the motive of occurrence, informant stated in Fard-e-bayarthat deceased was a well wisher of weave s of Belkhuria village and was not allowing co-accused Devi Dayal Yadav who was Gram Sevak to take commission from the weavers who used to receive payment by cheque under Indira Awas Scheme and a Committee was formed for the welfare of weavers of Belkhuria village and deceased was one of the members of the Committee and other members included informant, Md. Alamgir, Sabir Ansari and Rahman Ansari and because of formation of this Committee, co-accused Devi Daya Yadav had become powerless. On 05.05.1999 also, coaccused Vidyanand Yadav had told informant that although cheque had been prepared but payment would not be made. The informant further stated that appellant, Devi Daya Yajav, Janardan Yadav and Vidyanand Yadav used to give threatening to weavers that they would have to pay commission for the money received by them under Indira Awas Scheme and in this connection in the month of October, 1998 a case was registered at Nath Nagar Police Station against Gram Sevak Devi Dayal Yadav and deceased was strong opponent of appellant, Janardan Yadav, Vidyanand Yadav and Devi Dayal Yadav and was not allowing them to take money of weavers and this was the motive of occurrence. On the basis of Fard-e-bayan of informant, a case under Sections 302/34 of IPC and Section 27 of Arms Act was registered against the appellant and co-accused Janardan Yadav, VidyanandVadav and Devi Dayal Yadav. On the basis of Fard-e-bayan of informant, a case under Sections 302/34 of IPC and Section 27 of Arms Act was registered against the appellant and co-accused Janardan Yadav, VidyanandVadav and Devi Dayal Yadav. The police, after investigation, submitted chargesheet against the appellant and co-accused Devi Daya Yadav, Janardan Yadav and Vidyanand Yadav who all were named and Anirudh Yadav who was not named, in the first information report. Cognizance of the case was taken and charges under Sections 302/34 of IPC and Section 27 of Arms Act against appellant and co-accused Devi Daya Yadav, Janardan Yadav, Vidyanand Yadav and Anirudh Yadav were framed and case was committed to the Court of Session where all the aforesaid persons were put on trial and after trial, appellant was held guilty under Section 302 of IPC and Section 27 of Arms Act and was convicted and sentenced to undergo rigorous imprisonment for life under Section 302 of IPC, as stated above. Remaining four co-accused persons, namely, Devi Dayal Yadav, Janardan Yadav, Vidyanand Yadav and Anirudh Yadav were given benefit of doubt and were acquitted. 3. In order to prove its case, prosecution has examined eight witnesses. Amli Paswan (PW 1) and Shamshed Ansari (PW2) have not supported the case of prosecution and they have been declared hostile by prosecution. Ajaz Ansari (PW 3) is the informant, Alamgir (PW4) and Ekram Ansari (PW 5) are Said to be eye witnesses to the occurrence Dr. Bishundeo Prasad (P.W. 6) is the doctor who held autopsy on the dead body of deceased. Anil Kumar Srivastava (PW 7) is the Investigating Officer Vijay Kumar Singh (PW 8) is the Judicial Magistrate who had recorded the statement of Amli Paswan (PW 1) and Sharnshad Ansari (PW 2) under Section 164 of Code of Criminal Procedure (Exhibits - 4 and 4/A). 4. Dr. Bishundeo Prasad (PW 6), in his evidence, has stated that on 06.05.1999, he was posted as Assistant Professor in Forensic Medicine in JLNMCH and on that day at about 5.10 PM, he held autopsy on the dead body of deceased and found as follows: (1) Rigor mortis had just started at face and neck. (2) Entry wound of the Size 1.5"x 1" was present on the upper part of right side of chest 2" above the right nipple with tattoo mark of size 12" x 8". (2) Entry wound of the Size 1.5"x 1" was present on the upper part of right side of chest 2" above the right nipple with tattoo mark of size 12" x 8". (3) Exit wound of size 3/4 " x ¾” was present on left scapular region of back. According to him cause of death was shock and haemorrhage resulted from the injury found on chest caused by firearm and time of death was within SIX hours from the time of post mortem examination. He has proved post mortem examination report in his writing and signature (Exhibit3). His evidence establishes that death of deceased was homicidal. 5. Ajaz Ansari (PW 3), the informant, in his evidence, has said that on 07.05.1999 at about 2 PM, he was at the turning of Manoharpur when he saw appellant alongwith Anirudh Yadav, Vidyanand Yadav, Janardan Yadav and Devi Dayal Yadav all armed with pistols and appellant fired on Kalim and the shot hit on the chest of deceased. He has said that at the time of occurrence, Md. Alamgir (PW 4) was with him and after firing when appellant and his colleagues saw him and Alamgir, they fled away. He has said that he put the deceased on his scooter and by pushing the scooter first brought the deceased to his house and, thereafter, took him to Mayaganj Hospital but by the time, deceased was taken to hospital he died. He has further said that the Commissioner had constituted a Committee of which he, deceased, Alamgir, Sabir and Rahman were members and their job was to withdraw money from bank under Indira Awas Scheme and distribute it to the concerned persons and appellant and his other companions, who were co-accused in the case, used to demand money of Indira Awas Scheme from recipients and deceased had raised objection and then appellant and his companions had given him threatening that he should refrain from raising objection to their demand otherwise he would be killed. He has further said that he had lodged a case at police station against appellant and his companions before the occurrence. He has further said that he had lodged a case at police station against appellant and his companions before the occurrence. Alamgir (PW 4), in his evidence, has said that on 07.05.1999 at about 2 P.M. he was going to Manoharpur Bank and when he reached Manoharpur turning, he saw deceased surrounded by ten to twelve persons and deceased had received firearm injuries and it was appellant who had fired on him. He has further said that appellant and his companions on seeing him and informant fled away. About the persons taking part in offence, besides appellant, he has named Anirudh Yadav, Vidyanaod Yadav. Devi Dayal Yadav and Janardan Yadav. He has said that he and informant went to deceased who by that time was injured and put him on his scooter and brought him to his house and, thereafter, to Mayaganj Hospital on his Gypsy but by the time the deceased reached the hospital, he died. About the motive of occurrence, he has said that deceased was member of a Committee to look after the work of Indira Awas Scheme and appellant and his companions were demanding commission from deceased and because deceased did not oblige them, therefore, he was killed. Ekram Ansari (PW 5) has said that no 07.05.1999 at about 2.2.15 PM, he was returning to his house from Manoharpur Bank and when he was crossing through an orchard of Manoharpur, he saw deceased going on his scooter from bank to Nath Nagar. He has further said that there is a turning in orchard where he found appellant and co-accused Devi Dayal Yadav, Anirudh Yadav, Janardan Yadav and Vidyanand Yadav standing there and all were armed with pistols and they all stopped the deceased in the middle of orchard and, thereafter, appellant Awadh Yadav fired on deceased who fell down and when the deceased being injured fell down, informant and Alamgir (PW4) came there running from a distance of about 15 to 20 feet and they lifted the deceased and put him on his scooter and took him towards Nath Nagar and he went to his village Demapur and appellant and his companions fled away. Vijay Kumar Singh (PW 8), in his evidence, has said that on 18.05.1999, he was posted as Judicial Magistrate, Ist Class at Bhagalpur and on that day, he recorded the statements of Amli Paswan and Shamshad Ansari under Section 164 of Criminal Procedure Code (Exhibits - 4 and 4/A). As stated above, when both these witnesses were produced before Court, they did not support the case of prosecution and they have been declared hostile 6. In his Fard-e-bayan, the informant has first stated that he had proceeded to Manoharpur Bank along with Amir Ansari, Shakil Ansari, Badri Paswan and Anil Rajak (all not examined) and Amli Paswan (PW 1) because he had to receive money by cheque there but immediately thereafter he stated that he along with Alamgir (PW 4) came to Nath Nagar from his village where he came to know that deceased had left for Manoharpur Bank along with appellant and other co-accused persons. His both statements are quite vague and does not make it clear from which place he proceeded to Manoharpur alongwith Amir Ansari, Shakil Ansari, Badri Paswan, Anil Rajak and Amli Paswan. Besides this, in Fard-e-bayan, he has clearly stated that at about 2-2.15 PM when he and Alamgir were crossing an orchard of Manoharpur village, they heard a loud sound from turning of road and when they went there running, they saw that appellant Awadh Yadav had already fired on deceased and was standing there with a pistol. In his evidence, he has given a different version by saying that at the time of occurrence, he was at Manoharpur turning where he saw appellant and his companions carrying pistols and appellant fired on deceased hitting on his chest. In his evidence, he does not say that when he was crossing the orchard, he heard a loud sound and, thereafter, he went running to the place of occurrence. In his evidence, he has claimed himself to be an eye witness whereas in Fard-e-bayan, he has claimed to have reached the place of occurrence after hearing the sound of firing. In Fard-e-bayan, he did not name Anirudh Yadav but in his evidence along with appellant and some other persons who were named by him in his Fard-e-bayan, he added the name of Anirudh Yadav also as one of the companions of appellant. In Fard-e-bayan, he did not name Anirudh Yadav but in his evidence along with appellant and some other persons who were named by him in his Fard-e-bayan, he added the name of Anirudh Yadav also as one of the companions of appellant. The Court below, in para - 18 of its judgment, taking note of the fact that informant, in his evidence, has said that appellant and his companions were demanding commission which was being objected to by deceased and for this reason, they had given him threatening and also of the fact that Alamgir, in his cross-examination, has admitted that informant had lodged a criminal case against Devi Dayal one of the co-accused of this case, has observed that both the possibilities, one of false implication and another of committing murder for enmity are there and, thereafter, there is need to scrutinize the evidence of prosecution witnesses very cautiously. I, further, find that the Court below has observed that first information report is the basis of the case and first information report was not lodged in any haste rather vivid description of occurrence is given in the first information report but then it is clearly stated in it that after arrival of informant and witness Alamgir other co-accused persons came from neighbouring places and, thereafter they, along with appellant Awadh Yadav, started running away. The Court below has observed that so far other co-accused persons, who were named by informant and Alamgir in their evidence, there was only material that they were seen running away with the appellant and there was no allegation against them of either taking part or lending any help in the commission of offence. In para - 25 of its judgment, the Court below has observed that possibility of false implication of other four co-accused persons who faced trial with appellant cannot be ruled out and in Fard-ebeyan name of co-accused Anirudh Yadav has not appeared and his name was dragged subsequently. On all these grounds, other co-accused persons who faced trial with appellant were given benefit of doubt and they were acquitted. 7. In this case, besides informant, Alamgir (PW4) and Ekram Ansari (PW5) have deposed about the occurrence. On all these grounds, other co-accused persons who faced trial with appellant were given benefit of doubt and they were acquitted. 7. In this case, besides informant, Alamgir (PW4) and Ekram Ansari (PW5) have deposed about the occurrence. As stated above, from the evidence of Ekram Ansari (PW 5), it appears that he was the first man who had seen the occurrence and in his presence, appellant Awadh Yadav fired on deceased and when deceased, after receiving injury, fell down, informant and Alamgir came running from a distance of about 20 to 25 feet. The informant in his Fard-e-bayan has nowhere stated that this witness Ekram Ansari (PW 5) came to the place of occurrence. On the other hand, he has said that after occurrence, Shakil Ansari and Md. Amir Ansari who were coming from Manoharpur Bank came there and they were told that appellant along with his companions who are named in the first information report and some unknown companions, after firing on deceased, tied away. Prosecution has not examined Md. Shakil Ansari and Md. Amir Ansari and the Court below has also not given any benefit to deference for their non-examination holding that Fard-e-bayan discloses that they were hearsay witnesses and not eye witnesses and, therefore, their non-examination does not in any way affects the case of prosecution. Notwithstanding the fact of non-examination of these two witnesses it is apparent that Ekram Ansari (PW 5) is not named i1 Fard-e-bayan Informant in para - 25 of his evidence has said that after hearing the sound of firing, he and Alamgir were the persons who had first reached the place of occurrence. The informant, in his evidence, also has nowhere stated that Ekram Ansari had also come to the place of occurrence. Alamgir (PW4), as stated above, has said that when he reached Manoharpur turning he saw that deceased was surrounded by ten to twelve persons and appellant fired on• him. This is also against the statement of informant as made out in fard-e-bayan or in his evidence because informant neither in his Fard-e-bayan nor in his evidence, has stated that deceased was surrounded by ten to twelve persons. Besides this, Alamgir (PW4) himself, in para - 21 of his evidence, has said that deceased was not surrounded by ten to twelve persons and only five persons had surrounded him. So, I find that he contradicted his own statement. Besides this, Alamgir (PW4) himself, in para - 21 of his evidence, has said that deceased was not surrounded by ten to twelve persons and only five persons had surrounded him. So, I find that he contradicted his own statement. 8. In this case, admittedly, Fard-e-bayan has been lodged by Md. Ajaz Ansari who is not related to deceased. It is the own case of informant that after occurrence, deceased was brought to his house at Nath Nagar and from there, he was taken to hospital but by that time, he died. He has further said that at the house of deceased, Deputy Superintendent of Police and Inspector had come there but no Fard-e-bayan was recorded there and they asked him to take injured to hospital and then deceased was taken to hospital but before reaching there he died and the Inspector and Deputy Superintendent of Police along with the members of family of deceased came to hospital and among the members of family of deceased, Alam, brother of deceased was also there and in the hospital, statements of informant and Alamgir were recorded. It has been argued on behalf of deference that it is very surprising that from Manoharpur more, deceased was brought to his house at Nath Nagar where informant and Alamgir stayed there for about twenty five minutes as stated by informant in his evidence and at Nath Nagar, there is a Police Station but no information was lodged there and thereafter deceased was brought to JLNMCH where Fard-ebayan of informant was recorded on 07.05.1999 at 4 PM but the first information report was sent to Court on 09.05.1999. It has further been argued that the Court below has also in its judgment observed that prosecution has not explained the delay in sending the first information report to Court which should have been reached latest by 4 PM on 08.05.1999 but then it has ignored it by stating that because the delay was not so long from which it could be gathered that the Fard-e-bayan was changed or there was any deliberation before recording the Fard-e-bayan. The learned Counsel of appellant has argued that informant in para - 6 of his evidence has stated that his statement about the occurrence was recorded at police station and after recording the statement was read over and explained to him by police and he then put his signature (Exhibit - 2) and Alamgir and Jakiruddin also put their signatures (Exhibits-2/A and 2/B) on his written statement but again in para - 32 of his evidence he has said that his statement was recorded at hospital on which he had put his signature. He has further submitted that Investigating Officer (PW 7) in his evidence has stated that he recorded the Fard-e-bayan of informant at JLNMCH and he has also verified the signature of informant, Alamgir and Jakiruddin (Marked Exhbits-2, 2/A and 2/B) on Fard-e-bayan the heading of which itself shows that it was recorded at JLNMCH. 9. As stated above out of three witnesses, the statement of informant as given in Fard-e-bayan and in his evidence in Court are not consistent Similarly, evidence of Alamgir (PW4) and Ekram Ansari (PW5) are also not consistent to the statement of informant or to each other and enmity of informant and Alamgir, with appellant from before the occurrence is admitted because informant and Alamgir were members of a Committee which was opposed to Gram Sevak Devi Dayal Yadav, one of the companions of appellant. 10. The learned counsel appearing on behalf of the appellant has argued that the evidence of prosecution witnesses is not free from doubts and for that reason four other co-accused persons, who faced trial with appellant have already been given benefit of doubt and have been acquitted. It is true that an accused, who has been found guilty and convicted by Court below, cannot take the plea that other co-accused persons, having similar allegation facing trial with him have been acquitted so he also deserves acquittal but then if an appellate Court finds that the evidence during trial against the appellant stand on similar footing as was against other co-accused persons who have been acquitted by Court below and their acquittal was just and proper, the Court will definitely take this point for consideration. In the present case, other co-accused persons have been acquitted on the ground that there was no evidence against them that they participated in the occurrence and only evidence against them was that they were seen running away With the appellant from the place of occurrence. So far appellant is concerned, I find that no doubt in Fard-ebayan, it is stated that he was seen carrying a pistol in his hand but the evidence of none of the three prosecution witnesses establishes that appellant was seen firing. on deceased. I, therefore, find that the case of appellant cannot be distinguished from the case of other co-accused persons who have been given benefit of doubt and have been acquitted. About the place of occurrence, it has been argued on behalf of appellant that it has not been established because Dr. Bishundeo Prasad (PW 6), in his evidence, has said that the ante mortem injury which was found on the dead body of deceased was of that type which causes much flow of blood and deceased died of excessive flow of blood and informant in his evidence has stated that at the place of occurrence, blood, in cupious quantity, had fallen but then the Investigating Officer, in his evidence has said that he did not find any blood - stain at the place of occurrence which creates a doubt about the place of occurrence. If no inference from this evidence of Investigating Officer that he did not find any blood - stain at the place of occurrence is drawn even then, as stated above, I find that the case of appellant is identical to the case of other co-accused persons who have been acquitted and evidence on record shows that they have rightly been acquitted. 11. Considering the entire evidence on record, I find that about appellant also, the case of prosecution is not free from doubt. 12. In the result, this appeal is allowed. The judgment and order of Court below is hereby set aside and the appellant is acquitted. 13. As the appellant is in jail custody, issue release order immediately for his release from jail, if not wanted in any other case. S. MUKHERJEE, J: - I agree.