Judgment Chandra Mohan Prasad, J. 1. This appeal is against the judgment dated 28.5.1990 of the Assistant Sessions Judge, Naugachia passed in Sessions Case No. 169/83 G.R. Case No. 696/83 whereby each of the appellants has been convicted under Sec.307 of the Indian Penal Code and sentenced to R.I. for ten years. Each of the appellants has also been convicted under Sections 147 and 148 of the Indian Penal Code and respectively sentenced to undergo R.I. for one year and R.I. for three years. 2. The fardbeyan of the informant Kishun Das (P.W. 8) was recorded on 13.8.1983 at 3.30 A.M. He alleged that in the preceding night at 90 clock he went and slept on a mat at the Darwaja of Surya Narayan Das (P.W. 2). In the midnight at 120 clock 4-5 persons came there and surrounded him and flogged at as result of which he woke up and stood up on his legs. Then he saw the appellants except the appellant Prasadi Lal Das. The informant further alleged that he asked the appellants as to why they whipped at him and he cried for help. Then it is said that the appellant Nand Kishore Das fired his country-made pistol, hitting on the right arm of the informant as a result of which, the informant fell down on receiving injury. The informant also alleged that Dhaneshwar Das also received injury due to the same shot fired by the appellant Nand Kishore Das. Then the informant says that the appellants fled away and that at the time of fleeing the appellant Banarshi Das had made a sky fire. About cause of occurrence, the informant also stated that a litigation was going on between him and Babulal Das and due to the litigation the appellant Prasadi Lai Das caused the occurrence. On the basis of fardbeyan F.I.R. was registered and investigation was commenced. On completion of investigation chargesheet was submitted and the appellants were put on trial and thereafter they have been convicted and sentenced as above. 3. As many as 10 witnesses have been examined by the prosecution. P.W. 1, Suresh Das, P.W. 2, Surya Narayan Das, P.W. 3, Prabhat Das, P.W. 4, Munni Lai Das, P.W. 5, Ganeshi Das and P.W. 8 Kishun Das (informant) have been examined as eye-witnesses. P.W. 9 Dr. Nand Kishore Arun is the doctor who had examined the injury on the injured. P.W. 1, Suresh Das, P.W. 2, Surya Narayan Das, P.W. 3, Prabhat Das, P.W. 4, Munni Lai Das, P.W. 5, Ganeshi Das and P.W. 8 Kishun Das (informant) have been examined as eye-witnesses. P.W. 9 Dr. Nand Kishore Arun is the doctor who had examined the injury on the injured. P.W. 6 Dev Narayan Singh, P.W. 7 Ram Ekbal and P.W. 10 Krishna Kumar Pandey are the formal witnesses who have respectively proved the writings on the F.I.R. marked Ext. 1, the fardbeyan marked Ext. 2 and rent receipt marked Ext. 4. The I.O. of the case has not been examined by the prosecution. 4. First of all, I would like to discuss the evidence of doctor P.W. 9. He deposed that on 13.8.1983 he had examined the injured Kishun Das and found the following injuries on him. (i) Wound of entry irregular about 4" diameter, margin snowing evidence of burning on the anterior surface of right arm but the depth of the wound whole thickness of arm with compounding fracture of right humorous. (ii) Wound of exit ragged, irregular, everted edges about the size of 1-1/4" in diameter on the posterior surface of right arm. (iii) Lacerated injury 1"x1/4" 1/8" on the right forearm. Injury no. 1 and 2 were caused by gunshot and were grievous in nature and injury no. 3 was caused by hard blunt substance and was simple in nature. The injury certificate was proved as Ext. 3. The doctor further deposed that he had also examined Dhaneshwar Das on the same day and the same time and had found following injuries on him. (i) Lacerated injury 3/4 x 1/2x skin deep on the little finger (right), (ii) lacerated injury 1"x12"x skin deep on the right ring finger, (iii) Multiple pellets injuries on the right side of the chest. The injury no. (i) and (ii) were simple in nature and caused by hard blunt substance and injury no. (iii) was caused by gun shot. The injury report was proved as Ext. 3/1. 5 In cross-examination at paragraph no. 3 the doctor deposed that the injury no. 1 and 2 found on the person of Kishun Das cannot be caused by bullet. Injury no. 1 on Kishun Das shows the entry of bullet whereas injury no. (ii) shows exit of the bullet. The injury report was proved as Ext. 3/1. 5 In cross-examination at paragraph no. 3 the doctor deposed that the injury no. 1 and 2 found on the person of Kishun Das cannot be caused by bullet. Injury no. 1 on Kishun Das shows the entry of bullet whereas injury no. (ii) shows exit of the bullet. In the present case the wound of entry is bigger than the exit and it showed that more than one bullets were fired but only one bullet exit was present. The doctor further deposed that the injuries found on the person of Kishun Das and Dhaneshwar Das could not be caused by one and the same shot. He again deposed that such sort of injuries are not possible on two persons by one shot. 6. Thus, according to the doctor the injuries found on the informant Kishun Das and Dhaneshwar Das was not possible to be caused by a single shot. It has to be mentioned here that there is specific case of prosecution that the informant Dhaneshwar Das had received injury by the single shot fired by the appellant Nand Kishore Das. This matter will be considered further after examination of evidence of the other witnesses. 7. P.W. 1 Suresh Das deposed that while he was sleeping at his house he woke up on hearing sound of firing and he came to Darwaja of P.W. 2 and he saw the appellants fleeing away from there. He further stated that he found injuries on Kishun Das (informant) and Dhaneshwar Das. He admitted that Kishun Das is his uncle of P.W. 3. He further stated that he had litigation regarding land dispute with the appellant Nand Kishore Das. This witness names the appellant saying that he had identified while they were fleeing but does not say about the means of identification. Since the occurrence was of midnight hours identification was not possible without any means of identification. 8. P.W. 2 Surya Narayan Das is the person at whose Darwaja the occurrence is said to have taken place. He deposed that he woke up on hearing the sound of firing and he saw 5-6 persons fleeing away towards north and then he found Kishun Das and Dhaneshwar Das in injured condition. This witness does not name any of the appellants saying to have identified during the occurrence. He deposed that he woke up on hearing the sound of firing and he saw 5-6 persons fleeing away towards north and then he found Kishun Das and Dhaneshwar Das in injured condition. This witness does not name any of the appellants saying to have identified during the occurrence. He deposed that his Darwaja has tiled roof with a height four and half cubits. Thus this witness does not say to have identified any of the appellants during the occurrence. Though he has said that in the hospital, the informant, on gaining consciousness had disclosed the name of the appellants and that Munni Lal (P.W. 4) had come to his (P.W. 2s) Darwaja after half an hour of the occurrence. 9. P.W. 3 Prabhash Das deposed that he was sleeping at the Darwaja of P.W. 2 and he woke up on hearing sound of firing and then he saw five criminals out of whom he identified Nand Kishore Das (appellant) who was carrying a pistol and then he saw that Kishun Das and Dhaneshwar Das had got fire arm injuries. At paragraph no. 12 of the cross-examination the attention of this witness was drawn towards his previous police statement made before the I.O. that he had seen the five criminals fleeing away but he had not identified any of them. This witness denied to have made any such statement. During argument, the learned counsel for the appellant drew attention towards the statement of this witness in paragraph no. 12 of the case diary wherein he has stated that he had seen the five criminals fleeing away but he had not identified any of them. The learned counsel argued that due to non-examination of the I.O. the defence was unable to prove this police statement of this witness (P.W. 2) hence he has been prejudiced in his defence. I find substance in the submission of appellants counsel. Since, this witness has stated before the I.O. that he had not identified any of the criminals, it is not safe to rely on the identification of the criminals as claimed by the witness while deposing before this court. This witness has also not disclosed anything about means of identification. 10. P.W. 4 Munni Lal Das deposes that he woke up on hearing Hulla and then he saw that the appellant Nand Kishore fired a shot and thereafter he started fleeing away. This witness has also not disclosed anything about means of identification. 10. P.W. 4 Munni Lal Das deposes that he woke up on hearing Hulla and then he saw that the appellant Nand Kishore fired a shot and thereafter he started fleeing away. In the alleged firing Kishun Das received injury from the shot and Dhaneshwar Das did also receive injury through splinters of the same shot. This witness claims to have identified the appellants excepting Chhote Lal Das. At paragraph no. 6 of the his cross-examination he deposed that at the time when the shot was fired and he had hidden himself behind a pillar at the Darwaja. This witness does not explain how he could be able to see the occurrence of firing when he had himself behind the pillar at the time when the shot was fired. The occurrence is of mid-night but this witness does not disclose about any means of identification. At paragraph no. 7 of his evidence this witness deposed that he had reached the P.O. and he had seen that people were raising Hulla and Kishun Das lay fallen with injuries. On the basis of this part of evidence of this witness it was argued that this witness has arrived at the P.O. after the occurrence and he has not seen the actual occurrence of firing with his eyes. At paragraph no. 9 of his evidence this witness admits litigation with the appellant Nand Kishore Das. It was argued that this witness has enmity with the appellant due to litigation between them and that due to this enmity he has tried to implicate that appellant falsely in this case. 11. P.W. 4 claimed that he had seen the accused in. the night of the occurrence. The P.W. 2 on whose Darwaja the occurrence took place has deposed at paragraph no. 4 of his cross-examination that in the night of occurrence Munni Lal Das (P.W. 4) was at his (P.W. 4s) Darwaja and that he had come to his (P.W. 2s) to Darwaja after half an hour of the occurrence. Thus, according to the P.W. 2, P.W. 4 had arrived at the P.O. half an hour after the occurrence, therefore, claim of the P.W. 4 that he had seen the occurrence becomes full of doubts. 12. Thus, according to the P.W. 2, P.W. 4 had arrived at the P.O. half an hour after the occurrence, therefore, claim of the P.W. 4 that he had seen the occurrence becomes full of doubts. 12. The P.W. 5, Ganesh Das has not named any of the criminals and he has simply deposed that on hearing sound of firing, he went to the P.O. and he saw Kishun Das and Dhaneshwar Das in injured condition. 13. P.W. 8, Kishun Das who is the informant himself has deposed that while he was sleeping at Darwaja of P.W. 2 he woke up on being flogged and he then cried for help and that, thereafter, the appellant Nand Kishore Das fired his pistol hitting on his right arm. He further deposed that through that shot Dhaneshwar Das had also received injury. He claims to have identified the appellants in moonlight and also torch light flashed by Prabhash Das (P.W. 3). He admits that he had several litigations with the accused i.e., the appellants. Thus the informant claims to have identified the appellant in the torch light flashed by P.W. 3 but the P.W. 3 himself has not stated in his evidence that he had flashed any torch light. Moreover, any torch light was not produced before the court also. In such circumstances the claims of the informant of having identified the appellants in torch light becomes doubtful. 14. The informant and some witness have claimed that they identified the appellants in moon-light. But the Trial Court has examined the matter in its judgment and has mentioned that on the day of occurrence it was 4th day of moon in the month of Srawan and on that 4th day moon-light was not available. The Trial Court did not feel convinced that moon-light was available for identification. But the trial Court further accepted the claims of identification by the witnesses in torch light. But in view of the circumstances that P.W. 3 himself has not said about having flashed any torch light nor the torch light was produced in the court such claims of identification in torch light is not safely believable. 15. In this case, Dhaneshwar Das is said to have received fire arm injury through the same shot which had hit the informant. 15. In this case, Dhaneshwar Das is said to have received fire arm injury through the same shot which had hit the informant. Dhaneshwar Das was an important witness to say about the occurrence but he was not examined by prosecution and there is no explanation for his non-examination. The non-examination of Dhaneshwar Das goes adverse to the case of prosecution. 16. It is specific case of prosecution that the informant and Dhaneshwar Das both had received injury through the same shot fired by the appellant Nand Kishore Das. In this context the evidence of the doctor is very important. The doctor has deposed that the fire-arm injury caused on the informant was a bullet injury. The doctor further deposed that the fire-arm injury caused on Dhaneshwar Das was pellet injury. And on this ground, the doctor was of his positive view that the injuries on the informant and Dhaneshwar Das were not possible to be caused by the same shot. According to the case of prosecution Dhaneshwar Das had received only fire-arm injury through the shot fired by the appellant Nand Kishore Das. But the injuries on Dhaneshwar Das as found by the doctor shows that two lacerated injuries simple in nature and caused by hard blunt substance were also found on him. Since there is no case of prosecution that Dhaneshwar Das was assaulted by any means other than the shot fired, by the appellant Nand Kishore Das, the existence of two lacerated wounds caused by hard blunt substance make the situation full of doubts. 17. The learned counsel for the appellant argued that the informant and Dhaneshwar Das received the injuries at some other places and due to enmity with the appellants they have been implicated in false case. In view of the evidence of doctor that the injuries on the informant and Dhaneshwar Das were not possible to be caused by the same shot and also the finding of two lacerated wounds on Dhaneshwar Das caused by hard blunt substance go to indicate that the manner of occurrence as said by the prosecution has not been proved beyond the shadows of doubt. 18. The learned counsel for the appellants submitted that due to enmity on account of several litigations between the informant and the appellants, the appellants were implicated falsely. 18. The learned counsel for the appellants submitted that due to enmity on account of several litigations between the informant and the appellants, the appellants were implicated falsely. The learned A.P.P. replied that enmity cuts both ways and that the appellants can also cause assault due to enmity. Anyway enmity is not ground for disbelieving the evidence of any witnesses. Whatever it requires is that in such situation the evidence of witnesses has to be examined with great care and caution. Thus, having examined the evidence of the witnesses with such care and caution and on considering the infirmities in the evidence of witnesses as discussed above, I find that prosecution has not been able to prove the charges beyond the shadow of reasonable doubt. The appellants are entitled to benefit of doubt. Therefore, the appellants are acquitted of the charges and also discharged from the liabilities of the bail bonds. 19. This appeal is, accordingly, allowed.