Judgment : ( 1 ) THE present appeals have been directed against the judgment of conviction dated 11-8-98 and order of sentence dated 13-8-98 passed by the 4th Additional sessions Judge, Dhanbad in Sessions Trial no. 134/97 whereby both the appellants have been sentenced to undergo rigorous imprisonment for 10 years for their conviction under Section 307/149 I. P. C. , one year rigorous imprisonment under Section 147 i. P. C. , two years rigorous imprisonment under Section 148 I. P. C. and three years rigorous imprisonment under Section 440 i. P. C. The appellant Arun Kumar Singh was further sentenced to undergo three years rigorous imprisonment for his conviction under Section 27 of the Arms Act. All the sentences were directed to run concurrently with the set off of the period of detention undergone by them. ( 2 ) THE prosecution story lies in a narrow compass. The informant Ajay Kumar chourasia (P. W. 7) delivered his statement (Ext. 2) that on 19-1-97 at about 6. 30 p. m. while he was sitting with his brother Krishna chourasia (P. W. 10) and his staff Jai Mangal singh (not examined) in his shop M/s Ajay electronics and that his younger brother chanchal Chourasia (P. W. 3) with his staff bablu and Deepak was sitting in his own ready made garments shop in the name and style M/s. Zuno garments, the appellants namely Arun Kumar Singh, Chotu alias chotua (Binod Kumar Sinha) and one shailendra Singh (since deceased) along with 3/4 other miscreants arrived there, variously armed with hockey sticks, Bhujali and country made pistol and entered into Ajay electronics. Narrating the specific attribution the informant stated that the accused Sailendra singh smashed the glass door with Bhujali of the shop M/s. Ajay Electronics. The appellant Arun Kumar Singh having country made pistol in his hand caught hold Krishna chourasia, abused him and threatened as to why his brother had lodged a case against him. In the same transaction, the informant added that the appellant Arun Kumar Singh fired shot at his brother Krishna Chourasia from his pistol from point blank range. Hearing the sound of firing and the alarm raised by the informant, witnesses assembled there including his younger brother Chanchal chourasia (P. W. 3) and his staff Bablu (P. W. 1) and Deepak whereupon all the accused escaped. Hearing the sound of firing and the alarm raised by the informant, witnesses assembled there including his younger brother Chanchal chourasia (P. W. 3) and his staff Bablu (P. W. 1) and Deepak whereupon all the accused escaped. The occurrence was witnessed by a number of persons who assembled there. Disclosing the genesis, the informant alleged that the appellants and other accused used to demand extortion tax (Rangdari) which was objected to by the informant and his brothers. On 18-1-1997 i. e. a day prior to the alleged occurrence also the accused person including the appellants had demanded rangdari in relation to which a police case was registered and in sequel to that the accused persons had come again on 19-1-97 and had given effect to the occurrence. ( 3 ) MR. P. P. N. Roy, learned Counsel for the appellants by his common argument in both the appeals submitted that the occurrence did not take place in the manner presented by the prosecution. The prosecution had examined altogether 11 witnesses before the trial Court. The specific defence of the appellants was that there held scuffle between P. W. 3 Chanchal Chourasia P. W. 7 ajay Chourasia and P. W. 10 Krishna chourasia as the first party and Sailendra singh as second party and in such scuffle sailendra Singh was beaten to death. For such occurrence a separate case was instituted and to screen the culprits who are the witnesses, the present case was brought about on the statement of Ajay Chourasia (P. W 7 ). ( 4 ) ADVANCING his argument Mr. P. P. N. Roy submitted that in the instant case the place of occurrence could not be established. The independent witnesses such as Deepak kumar, Jai Mangal Singh, Sandeep Jha and narbaha-dur Singh were not examined and the Court may presume existence of certain facts under Section 114 (g) of the Evidence act that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. The material witnesses produced on behalf of the prosecution have substantially made contradiction, exaggeration and improvement in their statements before the trial Court and therefore, they are not reliable at all. The material witnesses produced on behalf of the prosecution have substantially made contradiction, exaggeration and improvement in their statements before the trial Court and therefore, they are not reliable at all. No corresponding injuries have been found in the injury report of P. W. 10 krishna Chourasia in relation to the manner of occurrence and the over tact alleged to be attributed against the appellants in the statement of the witnesses. ( 5 ) MR. P. P. N. Roy pointed out that one of the accused Sailendra Singh was done to death by the witnesses but neither the injury report nor the postmortem report has been brought on the record and the prosecution failed to explain the injury as well as cause of death of Sailendra Singh which casts a doubt that the occurrence did not take place in the manner presented by the prosecution. As a matter of fact, the fact of death of Sailendra Singh has been purposely suppressed by the prosecution to screen the prosecution witnesses who had participated in the commission of homicidal death of sailendra Singh and in this manner the prosecution has not come with clean hands. ( 6 ) ON the issue that the prosecution failed to establish the alleged place of occurrence mr. Roy submitted that P. W. 1 Bablu Kumar sinha deposed that when he came out from zuno Garment he found. that the glass pans of Ajay Electronics were broken and Kishan ji (Krishna Chourasia P. W. 10) was lying in the shop smeared with blood where he learnt that the victim had sustained gun shot injury and also that one of the culprits was assaulted to death by public. Similarly P. W. 2 Pankaj verma deposed that while he was sitting at about 6. 30 p. m. in Zuno Garments on 19-1-97, culprits about 2/3 in number variously armed with rod, hockey stick entered in the said shop smashed the showcase and upon resistance made by Chanchal chourasia P. W. 3 he was assaulted by them and threatened to be killed explaining that he had instituted a case. From there the culprits went to M/s Ajay Electronics and the witnesses claimed having seen Krishna chourasia lying injured. In the cross-examination the witnesses admitted that Krishna chourasia was lying outside his shop from his back side. From there the culprits went to M/s Ajay Electronics and the witnesses claimed having seen Krishna chourasia lying injured. In the cross-examination the witnesses admitted that Krishna chourasia was lying outside his shop from his back side. On the other hand P. W. 7 i. e the informant of the case while disclosing the place of occurrence testified that Krishna chourasia fell down in the shop (Ajay Electronics) sustaining gun shot injury and not outside the shop. P. W. 11 was the Investigating Officer of the case who visited the place of occurrence on 20-1-1997 at about 10. 00 a. m. but conceded having not mentioned in the case diary as to whether he found blood inside shop of M/s. Ajay Electronics or outside or on the road or around. Therefore, there was no objective finding of the I. O. about the alleged place of occurrence and the Trial Court therefore, failed to take into consideration that the occurrence did not take place in the manner described by the prosecution in the Court. The trial Court further over looked an important aspect as well as relevant fact that one sailendra Singh closely associated to the appellants was brutally assaulted to death by the witnesses of the instant case to which a police case was lodged but the prosecution failed to explain the cause of his death which creates a serious doubt that the instant case was brought about with a motive to screen the assailants i. e. the witnesses of the instant case who are alleged to be the eye witnesses of the occurrence. This fact finds support in the evidence of P. W. 1 Bablu kumar Sinha who deposed that one of the culprits was assaulted by the public as a result of which he died. In the cross-examination also he supported his such version. He could not say as to whether the person who was killed had entered into Ajay Electronics or not and that he had not witnessed the said victim coming out from Ajay Electronics with other. In the cross-examination also he supported his such version. He could not say as to whether the person who was killed had entered into Ajay Electronics or not and that he had not witnessed the said victim coming out from Ajay Electronics with other. The defence has projected that Ajay Kumar Chourasia (P. W, 7) Sandeep jha (P. W. 5) Chanchal Chourasia (P. W. 3)Chanchal Ghose, Sanjay Modi (P. W. 4)Mukesh Kumar (P. W. 6) Ajay Aneja, Pankaj verma (P. W. 2) Jai Mangal Singh, Krishna chourasia P. W. 10 had assaulted a boy named Sailendra in scuffle opposite their shop as a result of which Sailendra died and the persons who opposed such atrocious act of the assailants were implicated in the instant case. The P. W. 2 Pankaj Verma has also supported the fact in relation to murder of Sailendra Singh. P. W. 3 Chanchal chourasia has also not denied the murder of Sailendra Singh, who has claimed to be the eye witness of the alleged occurrence. The informant P. W. 7 Ajay Chourasia has also affirmed the death of Sailendra Singh by the injuries inflicted by the public. Even the alleged victim of the alleged case P. W. 10 Krishna Chourasia has admitted the death of Sailendra Singh in assault with the attribution that Arun Singh, Sailendra singh, Chotu (Binod Kumar Sinha) along with 2/3 unknown miscreants entered into his shop M/s. Ajay Electronics variously armed with pistol, bhujali, hockey stick and rods. It was attributed that Sailendra Singh smashed the glass panels of the door with bhujali and Arun Singh (appellant) intimidated him with the pistol in his hand. ( 7 ) MR. Roy relied on a decision reported in AIR 1997 SC 2583 the Supreme Court in d. V. Shanmisoham v. State of Andhra pradesh observed :- "the High Court came to the conclusion that both the accused-appellants as well as their father - Subramanium received the injuries in course of the occurrence. The question that arises for consideration is whether the prosecution has offered any explanation for such injuries on the accused-appellants as well as their father and if no explanation has been offered then for such non-explanation the prosecution case in anyway gets affected. The question that arises for consideration is whether the prosecution has offered any explanation for such injuries on the accused-appellants as well as their father and if no explanation has been offered then for such non-explanation the prosecution case in anyway gets affected. The law in this regard has been well discussed in ajudgment of this Court in the case of Lakshmi Singh v. State of Bihar, (1976) 4 SCC 394 : ( AIR 1976 SC 2263 ). It has been held by this court in the aforesaid case that where the prosecution fails to explain the injuries on the accused then two results may follow :-1. that the evidence of the prosecution witness is untrue; and 2. that the injuries probabi-lise the plea taken by the appellants. It has also been held in the aforesaid case that in a case of murder non-explanation of the injuries sustained by the accused at about the time of the occurrence is a very important circumstance from which the court can draw the following inferences: (1)that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; (2)that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; (3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. " it has further been held that omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses. But it is equally well settled that the prosecution is not obliged to explain the injuries sustained by the accused if the injuries are minor and superficial and where the injuries are not sustained in course of the occurrence. " ( 8 ) IN the same decision it was propounded that the principle of criminal jurisprudence which casts an obligation on the prosecution to explain injuries on the accused particularly when the injuries are of grievous in nature and the consequence of such non-explanation of the injury. ( 9 ) THIS apart, Mr. " ( 8 ) IN the same decision it was propounded that the principle of criminal jurisprudence which casts an obligation on the prosecution to explain injuries on the accused particularly when the injuries are of grievous in nature and the consequence of such non-explanation of the injury. ( 9 ) THIS apart, Mr. Roy advancing his argument submitted that the statement of the prosecution witnesses claimed to be the material witnesses by the prosecution are full of exaggeration and improvement beyond what the statements were recorded under section 161 Cr. P. C. during investigation of the case and no true picture has been depicted on behalf of the prosecution in relation to the charge framed against the appellants. In the present case though P. W. 3 chanchal Chourasia P. W. 7 Ajay Chourasia informant and P. W. 10 Krishna Chourasia have been projected as the eye-witnesses of the occurrence but they exaggerated the prosecution version before the trial Court in material particulars. Chanchal Kumar chourasia has testified in paragraph 28 that when he entered into Ajay Electronics he found his brother Krishna Chourasia standing who was held by the appellant Arun singh and the latter fired shot from his pistol at the distance of about 4/5 inches and at that time there was none at the counter of Ajay Electronics which was located in the deep of the shop. The shopwas about 18-19 long and 12 wide. In paragraph No. 30 also this witness supported his earlier version. When the attention of the I. O. P. W. 11 subhash Pd. Srivastava was drawn towards earlier statement of P. W. 3 Chanchal chourasia recorded under Section 161 Code of Criminal Procedure, the Investigating Officer testified that P. W. 3 Chanchal chourasia had not stated before him that when 3-4 unknown culprits entered into his shop and started smashing the glass pans of the show-case by asking as to why he had instituted a case, then out of fear he rushed to M/s. Ajay Electronics i. e. the shop of his elder brother. The Investigating Officer further affirmed that Chanchal Chourasia had not stated before him that no sooner did he arrive at Ajay Electronics he witnessed Arun singh holding a pistol in his hand who fired shot to his brother Krishna Kumar chourasia alias Kishan at the distance of about 4-5 inches. The Investigating Officer further affirmed that Chanchal Chourasia had not stated before him that no sooner did he arrive at Ajay Electronics he witnessed Arun singh holding a pistol in his hand who fired shot to his brother Krishna Kumar chourasia alias Kishan at the distance of about 4-5 inches. ( 10 ) SIMILARLY Ajay Chourasia (P. W. 7) who projected himself as the eye-witness had not stated before the police under Section 161 cr. P. C. in the manner that when Arun Singh was holding collar of Kishan, in the meantime Chanchal arrived and that Arun Singh fired shot in presence of Chanchal to his brother inflicting gun shot injury in the abdomen of his brother, the Investigating officer affirmed. ( 11 ) MR. Roy pointed out towards the statement of the Investigating Officer as contained in paragraph No. 75 of the case diary who deposed under cross-examination that the injured P. W. 10 Krishna Chourasia had not stated before him that the appellant arun Singh had fired shot in his abdomen and further that in the meantime Chanchal (P. W. 3) arrived. In this manner the so-called eye witnesses projected by the prosecution have substantially developed their statements in the trial Court by exaggerating from their earlier version which is of no credence so as to sustain the conviction of the appellants for the various charges. ( 12 ) IN this connection reliance has been placed on the decision reported in AIR 2002 sc 3023 . The Apex Court in Kuldip Singh v. State of Punjab observed:- ". . . . . . . . . . . . . . . . The version given of this witness before the Court is quite different from the version in his statement under Section 161 Cr. P. C. This witness cannot be said to be reliable and therefore one has to critically scrutinize his evidence before acceptance. " ( 13 ) MR. Roy exhorted that the specific case of the prosecution was that fire was shot by the appellant Arun Kumar Singh by a pistol from point blank range i. e. at the distance of a few inches but this fact has not been supported by the medical evidence in any manner. " ( 13 ) MR. Roy exhorted that the specific case of the prosecution was that fire was shot by the appellant Arun Kumar Singh by a pistol from point blank range i. e. at the distance of a few inches but this fact has not been supported by the medical evidence in any manner. The specific case was that the appellant Arun Kumar Singh held the collar of P. W. 10 Krishna Chourasia and fired shot and the victim was immediately removed to the Central Hospital, Jagjiwan nagar, Dhanbad. The victim was examined by P. W. 9 Dr. D. Mishra, Medical Superintendent, Surgery at the Central civil Hospital, Dhanbad. He testified that he had examined Krishna chourasia and conducted operation on his person in the night of 19-1-97. He operated his abdomen and on opening he found the following:- (i) Blood inside the peritoneal cavity. (ii) Left lobe of lever tall. (iii) Stomach was perforated both wall. (iv) Contusion in pancreative area. (v) Omentum torn. (vi) Haematoma in left paracolic gutter. ( 14 ) HE repaired the aforesaid injuries and blood was removed. He identified the victim krishna Chourasia present in the Court upon whom he had conducted operation. The injuries on the person of the victim was caused due to gun shot and it was a case of fatal internal haemorrhage. He proved the portion of the report in his pen and signature, which was marked Ext. 3 whereas the other portion of the report was in the pen and signature of Dr. A. K. Saha which was marked Ext. 4. ( 15 ) THE X-ray of the victim demonstrated a cylindrical opaque metallic foreign body left inside of abdomen which was mentioned in his report. In the cross-examination he deposed that he had not specifically mentioned in his report that he had conducted operation of Krishna Chourasia on 19-1-97 but the same was mentioned in the case-sheet. He admitted having not prepared the case sheet and that time taken in operation theatre was not mentioned in his report. He had not mentioned even the age of injury in his report as the same was not supposed to be filled by him. His report did not indicate as to why he did not remove the bullet from the body of the victim. The witness admitted having not mentioned in his report (Ext. He had not mentioned even the age of injury in his report as the same was not supposed to be filled by him. His report did not indicate as to why he did not remove the bullet from the body of the victim. The witness admitted having not mentioned in his report (Ext. 3)that he had examined wound of entry as the said column was not supposed to be filled by him. He was even not sure as to at what distance the shot was fired. Though he did not mention, but from the memory he could say that the patient was conscious at the time while taken to the operation theatre and that he had no interaction with the police in this connection. ( 16 ) MR. Roy submitted that neither the o. P. D. slip nor the injury report of the victim was produced by the prosecution which casts shadow of doubt about the manner of occurrence whereby and whereunder krishna Chourasia sustained gun shot injuries in his abdomen. The medical evidence is silent as to whether the shot was fired from a long distance or from point blank range. The doctor did not find the wound of entry since not reported and similarly no deposit of tatooing or similar smell was found around the wound. The doctor admitted that the X-ray and C. T. scan was not personally done by him and to be more specific he was silent about the age of injuries which was very relevant to corroborate the alleged manner of occurrence. No reason was assigned by the doctor as to why the metallic bullet was left over in the body of Krishna chourasia. ( 17 ) FINALLY the learned Counsel for the appellant submitted that the learned trial court below held the appellants guilty on erroneous consideration that P. W. 3, P. W. 7 and P. W. 10 were consistent on the point of occurrence as the eye-witnesses who corroborated each other on material particulars in their examination in chief whereas p. W. 1 and P. W. 2 though were not the eyewitnesses of the firing shot but they witnessed Krishna Chourasia lying sustaining gun shot injury and also identified the appellant Arun Kumar Singh. The trial Court below failed to take into account that the conviction of the appellant Arun Kumar singh in G. R. No. 127/97 under Section 387 cannot be an import for inferring his motive in the instant case since his appeal has been admitted and the stay of the operation of the order has been granted by the appellate court. On the whole, a reasonable doubt is created as to the complicity of the appellants in the alleged offence and therefore, they may be acquitted by allowing the appeal. ( 18 ) MR. Tapas Roy, learned A. P. P. strongly controverted the argument advanced for the appellants and submitted that the judgment of conviction and order of sentence recorded by the trial Court below is based upon the statement of the material witnesses of two categories. In the first category P. W. 3 chanchal Chourasia, P. W. 7 Ajay Chourasia and P. W. 10 Krishna Chourasia have consistently narrated the manner of occurrence and the involvement of the appellants therein whereby and whereunder they stormed in the shop m/s. Ajay Electronics and fired shot on krishna Chourasia from the pistol in prosecution of their common object. The other witnesses P. W. 1 and P. W. 2 are also material witnesses who have categorically supported the occurrence and claimed having seen the appellant Arun Kumar Singh coming out. P. W. 9 Dr. D. Mishra has found the corresponding injury in the abdomen of the victim Krishna Chourasia (P. W. 10) who conducted operation of the abdomen of the victim in the night of occurrence i. e. on 19-1-97 at about 8. 30 p. m. and in the X-ray report of the abdomen of the victim a metallic bullet was found which could not be removed by the doctor. The prosecution case has been adequately proved and the judgment and order passed against the appellants for their conviction under various sections of I. P. C. and under Section 27 of the Arms Act particularly against the appellant Arun Kumar singh does not call for interference and hence their appeals may be dismissed. The prosecution case has been adequately proved and the judgment and order passed against the appellants for their conviction under various sections of I. P. C. and under Section 27 of the Arms Act particularly against the appellant Arun Kumar singh does not call for interference and hence their appeals may be dismissed. ( 19 ) HAVING regard to the facts and circumstances of the case, argument advanced on behalf of the parties I find that as per prosecution story, the place of occurrence was inside the shop M/s Ajay Electronics where the appellants and Sailendra Kumar singh along with other culprits stormed and that P. W. 10 Krishna Chourasia sustained gun shot injury from point blank range fired by the appellant Arun Kumar Singh by his pistol. The other witnesses are consistent that the victim Krishna Chourasia (P. W. 10)fell down in the shop itself after sustaining gun shot injury. None of the witnesses including the eye-witnesses, projected by the prosecution, has stated having found blood on the earth where Krishna Chourasia was lying sustaining gun shot injuries. The medical evidence of P. W. 9 D. Mishra indicates that injury was caused in the abdomen, perforation of blood from the wound but the i. O. of the case P. W. 11 Subhash Prasad srivastava was also silent in his objective finding as to whether he found blood at the alleged place of occurrence when he visited there in the night of the occurrence on 19-7-97. Again he had visited the place of occurrence as pointed out to be M/s Ajay electronics on 20-1-97. In the cross-examination the witness testified that he had neither mentioned in the case diary that he had entered inside Ajay Electronics or that he found blood there. He further admitted having not mentioned in the case diary that he found blood opposite the shop or on the road or around that. He also not mentioned that he found the broken pieces of glass panels lying there. He admitted having not collected the pieces of glass or the stick from there. ( 20 ) AT the outset, learned Counsel for the appellants Mr. Roy has pointed out that in the instant case the place of occurrence could not be established and the material witnesses have given the description of different place of occurrence. With reference to the statements of the witnesses Mr. ( 20 ) AT the outset, learned Counsel for the appellants Mr. Roy has pointed out that in the instant case the place of occurrence could not be established and the material witnesses have given the description of different place of occurrence. With reference to the statements of the witnesses Mr. Roy had pointed out that P. W. 1 Bablu Kumar sinha deposed that when he came to M/s ajay Electronics he found Krishna chourasia (P. W. 10) lying smeared with blood. P. W. 2 Pankaj Verma stated that krishna Chourasia was lying there in injured condition outside the shop from his back side. On the other hand, P. W. 7 i. e the informant while disclosing the place of occurrence testified that Krishna Chourasia fell down in the shop sustaining gun shot injury and there is no objective finding of the investigating Officer P. W. 11 as to at which place he found the blood when he visited the alleged place of occurrence on 19-1-97 and 20-1-97, whether inside the shop M/s ajay Electronics or outside or on the road or around. I find substance in the argument for the appellants that the place of occurrence in the instant case could not be established from the statement of the witnesses who are inconsistent and the I. O. was silent either with regard to the evidence of broken pieces of glass or the recovery of any hockey stick alleged to be left out by the culprits and therefore there was no seizure list. ( 21 ) IN the instant appeals the learned counsel for the appellants pointed out that the material witnesses of this case who were present in the shop as the employees of M/s Ajay Electronics such as Jaimangal Singh and Sambhu Nath Jha were purposely with-held and were not produced in the witness box on behalf of the prosecution. They were the independent witnesses and the informant P. W. 7 has admitted their presence in the shop. Similarly one Sandeep Jha who was having a shop M/s Sakun garments adjacent to M/s Ajay Electronics was not produced though he had arrived there soon after the occurrence, on the death of sailendra Kumar Singh sustaining assault alleged in the same transaction while he was fleeing away from the place of occurrence. Similarly one Sandeep Jha who was having a shop M/s Sakun garments adjacent to M/s Ajay Electronics was not produced though he had arrived there soon after the occurrence, on the death of sailendra Kumar Singh sustaining assault alleged in the same transaction while he was fleeing away from the place of occurrence. Its F. I. R. was instituted by Narbahadur singh and this important witness was also not examined and I find substance in the argument of the defence which gives rise to presumption of certain facts under Section 114 (g) of the Indian Evidence Act, 1872 that evidence which could be and is not produced, if produced to it unfavourable to the person who withholds it. In my opinion, the statements of such witnesses were relevant in the instant case for exploring the truth being independent witnesses. The motive against the appellants was alleged that they along with other culprits had been extorting money as "rangdari" tax from the shopkeepers and when police case was registered by P. W. 3 Chanchal Chourasia of Zuno garments about their highhandedness, the some of the associates of the appellants stormed in the shop M/s Zuno garments, threatened its proprietor Chanchal chourasia (P. W. 3) and committed mischief by breaking the glass panels of the shop. But the prosecution failed to produce any other nearby shopkeeper in support of the relevant fact that the appellants had been extorting them also. I further find substance in the argument of the defence for the appellant that the medical evidence of P. W. 9 dr. D. Mishra is not corresponding to the alleged occurrence. Mr. Roy had argued this issue on the broad spectrum that though the specific case of the prosecutiqn was that the appellant Arun Kumar Singh had fired shot inflicting gun shot injury on the person of P. W. 10 Krishna Chourasiabut no bullet was recovered from the body of the victim during his operation in the night of 19-1-97. The doctor admitted having found a metallic bullet lodged in the abdomen of the victim on the basis of the X-ray report as well as the C. T. scan but the doctor failed to give explanation as to why metallic bullet could not be removed from the bpdy. He further admitted that X-ray as well as C. T. scan of the victim was not done in his presence. He further admitted that X-ray as well as C. T. scan of the victim was not done in his presence. The X-ray report/plate or the report of C. T. scan have not been brought on the record as the corroborative materials to sustain that p. W. 10 Krishna Chourasia alias Kishanji had actually sustained gun shot injury. The doctor did not find any tatooing on or around the wound of the victim Krishna Chourasia which discredits the version of the other eye witnesses who testified that the appellant arun Kumar Singh had fired shot from his pistol from point blank range at the distance of 4/5 inches. Similarly there is no exhibit list of the metallic bullet alleged to be lodged in the abdomen of the victim since not removed for the reasons best known to the doctor and therefore the prosecution failed to prove beyond reasonable doubt that the victim Krishna Chourasia P. W. 10 had sustained gun shot injury. ( 22 ) THE next point which has been raised for consideration in appeals is that the prosecution failed to explain the cause of death of Sailendra Singh since the specific defence was that Sailendra Singh was beaten by p. W. s 3, 7 and 10 to death and on the statement of one Narbahadur Singh, night guard, heerapur Market Dhanbad (Sadar) P. S. Case no. 37/97 was registered on 19-1-97 itself at about 21 hours against 200/300 unknown persons. The statement of narbahadur Singh informant was proved and marked Ext. 8 whereas the formal F. I. R. Ext. C on behalf of the defence. The informant Narbahadur Singh narrated altogether different story that while he was there in the Heerapur Bazar on 19-7-97 at about 18. 30 he heard the sound of firing near Zuno garment and the alarm saying that some culprits had fired shot to Krishna Ji at Zuno garment and one of the culprits was apprehended and assaulted by the mob of 200/300 persons. Here also the informant denied the alleged place of occurrence. The specific case of the prosecution in the instant case was that occurrence took place in M/s Ajay Electronics but the informant of Dhanbad (Sadar) P. S. Case No. 37/97 speaks about the occurrence in Zuno garments in which Krishna Chourasia sustained gun shot injury. Here also the informant denied the alleged place of occurrence. The specific case of the prosecution in the instant case was that occurrence took place in M/s Ajay Electronics but the informant of Dhanbad (Sadar) P. S. Case No. 37/97 speaks about the occurrence in Zuno garments in which Krishna Chourasia sustained gun shot injury. ( 23 ) I further find substance in the argument on behalf of the appellants that the material witness such as P. W. 3 Chanchal chourasia, P. W. 7 Ajay Chourasia and P. W. 10 Krishna phourasia who had been projected as the eye-witness of the occurrence made substantial development and exaggeration in the trial Court beyond what they had narrated before the Investigating Officer under Sectiqn 161 Cr. P. C. in material particulars. When the attention of the investigating Officer P. W. 11 Subhash Prasad srivastava was drawn, he clearly stated that p. W. 3 Chanchal Chourasia had not stated before him that when 3/4 unknown culprits entered into his shop (Zuno garments) and started smashing the glass panels of the show-case by asking as to why he had instituted a case then out of fear he rushed to m/s AjayElectronics. The Investigating Officer further affirmed that Chanchal chourasia had not stated before him that no sooner did he arrive at M/s Ajay Electronics, he witnessed the appellant Arun kumar Singh holding pistol in his hand who fired shot to his brother Krishna Kumar chourasia at the distance of about 4/5 inches. Similarly P. W. 7 Ajay Chourasia, informant made substantial development in his statement before the trial Court and the investigating Officer P. W. 11 was consistent that P. W. 7 had not stated before him that when Arun Singh was holding collar of kishan, in the meantime Chanchal chourasia (P. W. 3) arrived and that Arun kumar Singh fired shot in presence of chanchal to his brother inflicting injury in the abdomen of his brother. Similar was the case with P. W. 10 Krishna Kumar Chourasia, the injured witness who also made substantial development by saying that the appellant Arun Kumar Singh fired shot in his abdomen and in the meantime Chanchal arrived. The I. O. was specific that the arrival of P. W. 3 Chanchal at the scene of occurrence was not narrated at the first instance recorded by the police under Section 161 cr. The I. O. was specific that the arrival of P. W. 3 Chanchal at the scene of occurrence was not narrated at the first instance recorded by the police under Section 161 cr. P. C. and therefore, exaggerated version of such witness cannot be relied. ( 24 ) AS regards the complicity of the appellant Vinod Kumar Sinha alias Chhotu alias Chhotua is concerned no specific overt act has been attributed against him and in view of the above discussions the complicity of the appellant Arun Kumar Singh appears doubtful about his alleged participation. It is settled law that when the prosecution case is not proved beyond the shadow of all reasonable doubts and the prosecution failed to explain the circumstances in which one of the co-accused shailendra Singh suffered homicide amounting to murder the accused are bound to get benefit. The witness can lie but the objective factor cannot lie. In the instant case the issue related to the injury sustained by the victim Krishna Chourasia alleged to be caused by fire arm was left unanswered by the prosecution in the trial Court as discussed hereinabove and I have no hesitation to observe that the prosecution miserably failed to bring home the alleged charges against the appellants. The prosecution even failed to establish the participation of the required number of the members in the alleged offence/charge for the formation of unlawful assembly, The conduct of the Investigating Officer reflects that the investigation of the case was done in slipshod manner. ( 25 ) IN the result, the appellants Arun kumar Singh and Vinod Kumar Sinha alias chotu alias Chotua are acquitted of the charges under Sections 147, 148 and 307 read with Section 149 Indian Penal Code. The appellant Arun Kumar Singh is further acquitted from the separate charge under section 27 Arms Act. Their conviction and sentence recorded by the 4th Additional sessions Judge, Dhanbad in Sessions Trial no. 134 of 1997 is set aside/these two appeals are allowed and the appellants are discharged from the liability of bail bonds. --- *** --- .