Judgment Rekha Kumari, J. 1. The sole appellant stands convicted u/s. 302 of the Indian Penal Code and has been sentenced to undergo imprisonment for life and to pay a fine of Rs. 5000.00 and in default, to undergo rigorous imprisonment for two years. He further stands convicted u/s. 27 of the Arms Act and has been sentenced to undergo rigorous imprisonment for two years. Both the sentences are to run concurrently. 2. The prosecution version as disclosed from the Fardbeyan is that on 12-11-1980 at about 7. 00 p.m. informant Sukhdeo Yadav was sitting in his shop along with his son Mathura Yadav (deceased) and was checking the accounts of the shop. It is said that appellant-Sheoji Tiwary and his brother Sheonath Tiwary (since dead) came to the shop and Sheoji Tiwary shot at Mathura Yadav which hit his right thigh and he became unconscious. Co-accused-Sheo Nath Tiwary (since dead) took out the sale proceeds of the shop and fled away from there. It is also said that the informant tried to follow the assailant but the appellant-Sheoji Tiwary again shot a fire though it did not hit him. The deceased was taken to the local hospital and from there he was being taken to Siwan Sadar Hospital and on the way he succumbed to his injuries. 3. The Fardbeyan was recorded on that very day at 9.00 p.m. by the S.I. A. Rahman Khan of Siwan Town Police Station at Sadar Hospital, Siwan, on the basis of which formal First Information Report was drawn up. Usual investigation took place and charge-sheet was submitted against the appellant and his brother. 4. The prosecution in order to substantiate its case, has examined altogether seven witnesses among whom P.W. 2 Sukhdeo Yadav is the informant himself, P.W. 1 Shyamlal alias Bhuali Yadav and P.W. 4 Kanhaiya Yadav claimed to be the eye-witnesses of the occurrence. P.W. 5 Shankar Sharma is a hearsay witness. He was present at the time of recording of Fardbeyan and had put his signature thereon. P.W. 6 Bikrama Tiwary is a formal witness who has simply proved the concerned post-mortem register and P.Ws. 3 and 7 is the same person Dr. Nawal Kishore, who conducted postmortem examination on the dead body of the deceased. 5. The appellant pleaded not guilty. His defence is that he has been falsely implicated in this case. P.W. 6 Bikrama Tiwary is a formal witness who has simply proved the concerned post-mortem register and P.Ws. 3 and 7 is the same person Dr. Nawal Kishore, who conducted postmortem examination on the dead body of the deceased. 5. The appellant pleaded not guilty. His defence is that he has been falsely implicated in this case. No defence witness has been examined. 6. On consideration of the evidence on record, the trial Court held that the prosecution has been able to bring home the accusation against the appellant and it found him guilty u/s. 302 of the Indian Penal Code and sec. 27 of the Arms Act and convicted and sentenced him as mentioned above. 7. Learned Counsel for the appellant contended that the findings and the judgment of the trial Court is erroneous and against law. It convicted the appellant on the basis of the evidence which were not admissible. The learned Additional Sessions Judge overlooked the contradictions and infirmities occurring in the evidence of the prosecution witnesses. The evidence adduced by the prosecution was not sufficient to hold the appellant guilty. 8. In order to appreciate the above contention of the learned Counsel for the appellant, it would be proper to briefly notice the evidence which has been adduced by the prosecution to substantiate the charges levelled against the appellant. 9. The evidence of P.W. 2, the informant, is that on the alleged day at about 7.00 p.m. he was sitting in his shop along with his son Mathura Yadav and Bhuali Yadav, Mathura Yadav was looking into the accounts of the shop when appellant-Sheoji Tiwary and co-accused-Sheo Nath Tiwary came there and appellant-Sheoji Tiwary asked the deceased to hand over something (not described) and on query made to Mathura Yadav as to what was to be given to him, he shot at Mathura Yadav and Sheo Nath Tiwary (since dead) fled away taking the sale proceeds of the shop. The deceased sustained injuries on his right thigh. His further evidence is that he brought the deceased to Maharajganj Hospital, but as the doctor was not present there, he brought him to Siwan Hospital where he was declared dead. 10. The deceased sustained injuries on his right thigh. His further evidence is that he brought the deceased to Maharajganj Hospital, but as the doctor was not present there, he brought him to Siwan Hospital where he was declared dead. 10. Corroborating the evidence of the above witness, P.W. 1 has also stated that on the alleged date and time he was sitting in the shop along with his father Mathura Yadav (deceased) when Sheonath Yadav and Sheoji Tiwary came and Sheoji Tiwary fired a shot killing his father. He has also stated that Sheonath Tiwary fled away from there taking the cash available in the shop. 11. P.W. 4 has stated that at about 12 years ago he was present at the shop of Mathura Yadav (deceased) who was counting the cash. In the meantime, Sheonath Tiwary came and shot at him. 12. P.W. 7 has deposed that on 13-11-1980 he was posted as Civil Assistant Surgeon at Sadar Hospital, Siwan and at 11.30 a.m. he conducted post-mortem examination on the dead body of Mathura Yadav and found the following injuries : i) One lacerated wound 1/4" x 1/4" with black spots of 1/2" x 1/2" around on the middle and medial part of right thigh. ii) On dissection muscle and tissues were stained with blood. On dissection of abdomen, abdomen cavity was filled with blood and blood clot. iii) Right iliac arteries ruptured and damaged. iv) Small intestine perforated at three places. 13. According to the doctor, the death was due to shock and haemorrhage caused by the above ante-mortem injuries and the time elapsed since death was within 24 hours of the post-mortem examination. 14. Hence from the evidence of the doctor it appears that the deceased died of firearm injury and the time given by the doctor about his death corresponds with the time of occurrence. Thus from the evidence of the doctor it is clear that the deceased-Mathura Yadav was murdered by fire-arm at the time as alleged by the prosecution. 15. Now the next question which arises is whether the deceased was done to death by the appellant as alleged by the prosecution. 16. Though the above three witnesses (P.Ws. 1, 2 and 4) have supported the prosecution case, the deposition of P.W. 2, the informant, shows that the appellant was not given full opportunity to cross-examine him. 15. Now the next question which arises is whether the deceased was done to death by the appellant as alleged by the prosecution. 16. Though the above three witnesses (P.Ws. 1, 2 and 4) have supported the prosecution case, the deposition of P.W. 2, the informant, shows that the appellant was not given full opportunity to cross-examine him. He was cross-examined in part and thereafter his cross-examination was deferred, but the witness thereafter did not turn up. Besides this, from his evidence it also appears that his attention was drawn towards his previous statement before the I.O. u/s. 161, Cr. P.C. for the purpose of contradiction and he was asked as to whether he had stated therein that co-accused-Sheonath Tiwary had shot at his son. He has denied to have made such statement. But the I.O. has not been examined. Learned Counsel for the appellant submitted that this witness has stated in his further statement before the police that actually Sheo Nath Tiwary had fired the shot at his son but as during recording to Fardbeyan he was in shock and trauma on account of the death of his son and as both the accused were twins and there was a great resemblance in their appearance, and their names were also similar, he took the name of Sheoji Tiwary (appellant) as assailant. He further contended that as the I.O. has not been examined, the contradictions of the evidence of this witness could not be taken and the appellant has been greatly prejudiced on account of non-examination of the I.O. 17. In view of the above facts and submissions, in my opinion also, much importance cannot be attached to the evidence of this witness. 18. Then as regards the other two eyewitnesses, though P.W. 1 has stated that the appellant and his brother Sheonath Tiwary came and the appellant fired killing his brother and accused-Sheonath Tiwary took away the sale proceeds of the shop, P.W. 4, who is cousin of P.W. 1 and who according to the evidence of P.W. 2 was also present there, has in clear words stated in his very examination-in-chief that only co-accused-Sheo Nath Tiwary had come and fired causing injury to the deceased. This witness has not been declared hostile by the prosecution. This witness has not been declared hostile by the prosecution. Therefore, in the face of the vital contradictions in the evidence of these two eyewitnesses, a reasonable doubt is created as to whether the appellant took part in the commission of the murder of the deceased. 19. Thus, after considering all the evidence on record and the submissions made on behalf of both the parties and for the reasons given above, the judgment and order of conviction and sentence passed against the appellant by the learned trial Court is not fit to be sustained. 20. In the result, this appeal is allowed. The impugned order of conviction and sentence passed against the appellant by the trial Court is set aside and he is acquitted of the charges levelled against him. He is directed to be released from jail custody forthwith if not required in any other case. Aftab Alam, J. 21 I agree.