Judgment SHIVA KIRTI SINGH and SUBASH CHANDRA JHA JJ. 1. Both the appealshave been heard together and are being disposed of by this common judgment because they relate to the same criminal trial and arise out of same impugned judgment. 2. In each of the appeals there is one appellant and both are brothers. They have preferred appeals against the judgment and order dated 28th January, 2002 passed by learned Addl. Sessions Judge Vlth, Patna in Sessions Trial No. 472 of 2000 arising out of Dhanarua PS Case No. 131 of 1999. Appellant Satish Singh has been convicted under Sec. 302 of the Penal Code and Section 27 of the Arms Act and has been sentenced to undergo rigorous imprisonment for life on the first count and rigorous imprisonment for five years on the other count. The sentences are to run concurrently. Appellant Shambhu Singh has been convicted under Sec. 302 read with Section 34 of the Penal Code and sentenced to rigorous imprisonment for life. 3. The prosecution story as unfolded in the fardbeyan of Ram Prasad Ram (PW 10), the father of the deceased Shrawan Kumar is to the effect that on 2.11.1999 at about 1.30 in the day when he was at his Darwaza, he saw his neighbour Mahavir getting constructed a wall of his house. Adjacent neighbour of Mahavir Mahto (sic- Prasad ?), Satish Singh and Shambhu Singh, the appellants were objecting to opening of a passage in lane towards south. Son of Mahavir Prasad, allegedly pleaded for opening of the passage but Shambhu Singh threatened to kill him with fire arm shot. Then Shrawan (the deceased) went to intervene on which Shambhu Singh asked Satish Singh to fire at Shrawan. Satish fired from a country made pistol in his hand at Shrawan which hit him in the front and middle of the neck. Shrawan while in pain proceeded and fell down at his Darwaza and due to bleeding from the neck he died at that place. The reason for the occurrence as alleged is that Satish Singh and Shambhu Singh are notorious criminals of the village and in the past also they had killed one person the witnesses named in the fardbeyan are Shailendra Prasad (PW 4), Yugeshwar Razak (PW 3), Mahabir Paswan (PW 2) and also two others Shailesh Kumar and Sujita Kumari who have not been examined as witnesses. The fardbeyan appears to have been recorded in the village itself on 2.11.1999 at 14.00 hours by Sub-Inspector of Police, Raj Kumar Prasad (not examined as a witness). 4. Soon after recording the fardbeyan the Officer Incharge of Dhanarua Police Station Shiva Dhwaja Ram (PW 12) took over investigation himself. He recorded further statement of the informant and the statement of witnesses, prepared the inquest report prepared seizure lists of bloodstained earth from the Darwaza of the informant and of a live 315 cartridge said to have been recovered from the roof of house of accused persons. The body of the deceased was sent for post mortem examination which appears to have been conducted by Dr. Arun Kumar Singh (PW 9), a tutor in Forensic Science Department of Patna Medical College and Hospital. The formal FIR was drawn up at the Police Station on 2.11.1999 at 20 hours. 5. After completing investigation charge sheet was submitted against both the accused persons/appellants. They denied the charges and pleaded their innocence. After trial they have been convicted and sentenced by the impugned judgment and order, already noticed earlier. 6. The prosecution in order to prove the charges has examined altogether 12 witnesses. PW 1 Deoki Ram is an uncle of the deceased and not mentioned in the fardbeyan. In para 9 of his deposition he had admitted that before the occurrence of firing he had gone back to his house and after hearing sound of firing he came out after a few minutes and saw the deceased fallen down. PW 2. Mahavir Paswan, PW 3 Yugeshwar Razak and PW 4 Shailendra Pd. as already noticed, are witnesses whose names are mentioned as such in the fardbeyan PW 5, Dhuri Paswan, PW 6 Raj Nandan Singh, PW 7 Birendra Pd. Singh and PW 8 Bachu Das have also claimed to be eye witnesses. PW 9 is the doctor who conducted post mortem examination of the deceased. The post mortem report is Ext. 2, PW 10, Ram Pd. Ram is the informant PW 11, Sub Inspector Samarth Kumar is a formal witness. PW 12, Shri Shiv Dhwaja Ram is the main Investigating Officer as noticed earlier. Ext. 1 series are signatures of witnesses Yugeshwar Razak, Shailendra Prasad, Ambika Paswan and Dhirendra Prasad on seizure lists Exts. 4 and 4/1, Ext. 3 is signature of the informant on fardbeyan (Ext. 5), Ext. PW 12, Shri Shiv Dhwaja Ram is the main Investigating Officer as noticed earlier. Ext. 1 series are signatures of witnesses Yugeshwar Razak, Shailendra Prasad, Ambika Paswan and Dhirendra Prasad on seizure lists Exts. 4 and 4/1, Ext. 3 is signature of the informant on fardbeyan (Ext. 5), Ext. 6 is endorsement of the police officer on fardbeyan. Formal FIR is Ext. 7 and the inquest report is Ext. 8. 7. From the trend of cross examination as well as from the submissions advanced by learned counsel for the appellants it appears that the major points in issue are the place of occurrence and the manner of alleged occurrence. Keeping this in mind it will be useful first to examine the evidence of the informant (PW 10). He has deposed in Court that when altercation started over opening of a door or passage in the lane in the south of house of Mahavir Mahto, his son and other villagers went there on hearing hulla but he remained at his Darwaza. Allegedly exchange of abuses took place between accused Satish and deceased Shrawan. Thereafter, accused Satish Singh and Shambhu went to their house and son of the informant also returned to his Darwaza. The two accused went on the roof of their house and on the orders of Shambhu Singh, Satish fired a shot from a window of his first floor which hit the deceased who fell down and died. In Court he has alleged that after recording his statement the police officials did not read the same to him but he admittedly signed on the statement and admitted his signature which is Ext. 3. His attention was drawn to his earlier statement in the fardbeyan and before the police but he insisted that he had stated earlier that the two accused Satish Singh and Shambhu Singh had gone over roof of their house and on the orders of Shambhu Singh, Satish Singh fired from a window on the first floor. He has given the height of roof of the accused persons as 15 feet. 8. The Investigating Officer (PW 12) has described the place of occurrence to be east facing Darwaza of house of informant, Ram Pd. Ram. On the southern side of that Darwaza he found blood in large quantity. He has given the height of roof of the accused persons as 15 feet. 8. The Investigating Officer (PW 12) has described the place of occurrence to be east facing Darwaza of house of informant, Ram Pd. Ram. On the southern side of that Darwaza he found blood in large quantity. On the south of the place of occurrence, there is a village lane and thereafter is situated the semi constructed house of Mahavir Mahto and south-west of the said house of Mahavir Mahto is the Pucca house of accused persons. The first floor of that house does not have any roof. Half constructed room on the roof of that house has a window like opening towards north. From the roof near that window allegedly a live 315 cartridge was found and seized. From that place the house of the deceased is at a distance between 50- 60 on the north and the height of the window would be about 15/16. In cross examination he has stated that the informant fully supported the statement given by him in the fardbeyan and he did not state to him that firing was made from roof visible from the roof of the accused persons or not. 9. PWs. 1, 2, 3 and 4 have claimed to be eye witnesses of the occurrence in their examination-in-chief but in cross examination PW 1 in para 9 of his deposition has stated that when commotion started at the place of occurrence he went inside his house and heard sound of firing. Similarly PW 2, Mahavir Paswan has stated in para 3 of his deposition that on account of commotion he went to house of Bulak Mahto and stayed there for 10-15 minutes and there only he heard the sound of fire shot which appeared to be from west. He then went towards north and saw deceased Shrawan fallen down. PW 3, Yugeshwar Razak has similarly stated in para 5 of his deposition that on account of commotion he came to his Darwaza which faces north. He heard a sound of fire shot but he preferred to remain at his Darwaza. After 2-3 minutes he went to Gali of Ram Pd. Ram (informant) and saw an assemblage of 50-60 persons and also saw deceased Shrawan who had fallen in front of his Darwaza. He claimed that he heard people talking that Satish had fired the shot. He heard a sound of fire shot but he preferred to remain at his Darwaza. After 2-3 minutes he went to Gali of Ram Pd. Ram (informant) and saw an assemblage of 50-60 persons and also saw deceased Shrawan who had fallen in front of his Darwaza. He claimed that he heard people talking that Satish had fired the shot. Similarly PW 4, Shailendra Pd. in para 7 of his deposition has stated that after verbal altercation the accused persons threatened. Then all the persons, about 15-20 in number who had assembled in the Gali went away. This witness claimed that he went in the northern portion of the house under construction and then he went into the Gali (lane) on the north. He heard sound of one fire shot coming from south. After 2-3 minutes he proceeded to the place where deceased Shrawan had fallen down which was Darwaza of Shrawan. 10. The aforesaid discussion of the evidence of three witnesses, PWs. 2, 3 and 4 who are named in the fardbeyan as eye witnesses shows that actually they are not eye witnesses of the occurrence and they have not supported the claim in the fardbeyan that in continuation of verbal altercation in the lane on the south of house of Mahavir, the accused Shambhu Singh ordered for firing and accused Satish fired at the deceased causing injury in the front and middle of the neck of the deceased. It is further noticed that in accordance with the version of the occurrence given by these witnesses noticed above the informant. PW 10 has departed from his earlier version of the occurrence given in his fardbeyan. 11. As noticed earlier PW 5, Dhuri Paswan, PW 6 Raj Nandan Singh and PW 7 Birendra Pd. Singh have also claimed to be eye witnesses, although they are not named as witnesses in the fardbeyan. It is not necessary to examine their evidence in detail because they have also deposed on the same lines as the informant that after verbal altercation the accused persons went back to their house and Shrawan went and stood at his Darwaza and thereafter both the accused went on the roof of their house and on order of Shambhu Singh, accused Satish Singh fired and caused injury to Shrawan that proved fatal. But PW 5 has claimed that he was going behind Shrawan when the shot was fired by Satish Singh from his roof top and it hit Shrawan in the neck. He has admitted that before the police he had not claimed that he was going with Shrawan at the time of the occurrence. PW 6. Raj Nar.dan Singh has also claimed that on account of commotion people dispersed from near house of Mahavir where verbal altercation had earlier taken place, Shrawan went to his Darwaza and this witness went towards northern Darwaza of Mahavir Mahto from where he claimed to have heard and seen Shambhu Singh issuing orders and Satish Singh firing at the deceased and he also claimed to have seen deceased, Shrawan receiving fire arm injury in the neck. PW 7, Birendra Pd. Singh has proved his signature on the seizure list and has also claimed to have seen the entire occurrence of firing from the roof top and injury to the deceased. PW 8, Bachu Das has also claimed to be an eye witness. He was working as a mason in the house of Mahavir Mahto under construction. He has also given a similar statement that the accused after verbal altercation went to the roof top of their house and the firing by the accused Satish on the orders of Shambhu caused injury and death. In cross examination he has claimed that the crowd dispersed only after firing made by the accused. According to him the firing was made from south upon which there was bulla in the village. On that he went and saw Shrawan fallen down having an injury in the neck. At that time there were about ten persons gathered there and they were speaking: "Goli Maar Diya-Goli Maar Diya." 12. The contents of the fardbeyan have already been noticed and deposition of the informant (PW 10) has been scrutinised. The topography of the place of occurrence is quite clear from the evidence of the Investigating Officer and some of the prosecution witnesses. Adjacent west to the house of Mahavir which was under construction is another house, belonging to Ram Chandra, as per evidence of the informant. To the south of that house, and clearly south west from the house of Mahavir. lies the house of the accused persons. In order to see the Darwaza of Ram Pd. Adjacent west to the house of Mahavir which was under construction is another house, belonging to Ram Chandra, as per evidence of the informant. To the south of that house, and clearly south west from the house of Mahavir. lies the house of the accused persons. In order to see the Darwaza of Ram Pd. Ram where the deceased allegedly received injury and fell down, the eye witnesses have to be in the lane on the north of house of Mahavir because house of Ram Pd. Ram is situated across the lane on the north of Mahavirs house. That lane on the north of Mahavirs house after running east to west for some distance turns towards north just before informants house. The same lane earlier passes from the south of Mahavirs house before turning north and again turns and runs towards west. In order to see the firing from the roof of the accused persons the witnesses who claimed to be in the lane towards north of Mahavirs house have to look back towards south through some clearing or from long distance from where the house of Mahavir or Ramchandra may not obstruct their vision. And in order to see the deceased receiving injury at his Darwaja such witnesses have to look in front towards north. In such a situation it is understandable that the witnesses who were cited in the fardbeyan as eye witnesses of the occurrence have only claimed to have heard the sound of firing and not to have seen the actual firing. In view of such statement of the eye witnesses named in the fardbeyan the claim of other witnesses to have seen both-the firing from roof of accused persons and injury being caused to the deceased does not appear natural or trustworthy. 13. The first issue is whether the prosecution story as given in the fardbeyan has been changed or improved deliberately with a design to match with the version of the witnesses and the finding of the I.O. regarding the place of occurrence being Darwaza of the deceased where blood was found or the change is nothing but furnishing of further details of the prosecution case which are not expected to be given out in the fardbeyan. On careful perusal of the entire materials it is found that the changes and the improvements are not insignificant or minor in nature so as to be accepted as further details which are usual to come in the evidence and cannot be expected to be contained in the fardbeyan. The place of occurrence and the manner of occurrence, besides the time of occurrence are essence of a criminal prosecution and the particulars which have been changed by the informant during his deposition in Court relate to the place of occurrence as well as the manner of occurrence. It is difficult to accept the contention of the informant and of the State that such changes are insignificant and therefore, should not be treated as contradictions. 14. Even if it is presumed that some of the witnesses have seen the deceased receiving injury as claimed by them in their examination-in-chief, the medical evidence as adduced by PW 9, Dr. Arun Kumar Singh creates serious doubt in respect of their claim of having seen the occurrence. According to the doctor who has proved the post mortem report as Ext. 2, the deceased had sustained one injury 1/4" in dia-meter on upper part of left scapula 3" left from mid line and 3" medial and behind from left shoulder tip. The margin was lacerated, inverted and blackened. This was opined to be wound of entry and the second injury was found to be the wound of exit 1/4" diameter in front of neck midline 3 1/4" above from external notch. In cross examination the doctor has stated that the shot was fired not from front side and the wound of entry and exit was caused by a single shot and it was communicating to each other. The trend of communicating track was straight. 15. The location of wound of entry on the back, its being in line or lower to wound of exit and its being blackened, i.e. caused by firing from near distance contradicts ocular evidence. The aforesaid medical evidence is contrary to the claim of prosecution witnesses that shot was fired from a long distance and a higher place i.e. roof top and had entered in the neck. The aforesaid medical evidence is contrary to the claim of prosecution witnesses that shot was fired from a long distance and a higher place i.e. roof top and had entered in the neck. Had the prosecution witnesses been in a position to see the actual firing as well how and where the victim received the fire arm injury and had the ocular evidence been of un-im- peachable character not embellished by improvement or contradictions from the earliest version, one could have considered to accept the plea of the State and the informant not to place reliance upon medical evidence. But in view of nature and quality of ocular evidence available on record in this case, it does not appear just and proper to discard the medical evidence and accept the prosecution case. 16. As a result of aforesaid discussions we are of the opinion that the prosecution has failed to prove its charges against the two accused/appellants beyond all reasonable doubts. We are of the view that the accused/appellants are entitled to benefit of doubt. Hence the accused persons are acquitted of all the charges. The impugned judgment and order, dated 28.1.2002 passed by the Vlth Addl. Sessions Judge, Patna in Sessions Trial No. 472 of 2000 are set aside. 17. It appears that appellant Shambhu Prasad Singh @ Shambhu Singh @ Shambhu Kumar Singh is on bail. He shall stand discharged from the liability of the bail bonds. It further appears that appellant Satish Singh is in custody. He shall be released from custody forth-with if not required in connection with any other case.