Judgment SHIVA KIRTI SINGH, J. 1. Both the appeals have been heard together and are being disposed of by this common judgment because they arise out of same impugned judgment dated 25th of August, 2001 passed by learned 5th Additional Sessions Judge, Aurangabad in Sessions Trial No. 302/1998 and 20/2001 arising out of Barun P.S. Case No. 50 of 1998. 2. Both the appellants in Cri. Appeal No. 465 of 2001 namely, Saba Chaudhary alias Gurbachan Chaudhary and Ashok Chaudhary and the sole appellant in the other appeal, Arvind Chaudhary have been convicted under Sec. 302/34 of the IPC and sentenced to Rl for life and to pay fine of Rs. 5000/- each and in default to undergo further Rl for one year. The appellants, Saba Chaudhary and Ashok Chaudhary have been further convicted under Sec. 27(1) of the Arms Act and sentenced to Rl for three years. All the sentences are to run concurrently. 3. The informant of this case is Ram Suresh Chaudhary (PW-11), a brother of deceased Rameshwar Chaudhary @ Naresh Chaudhary. His fardbeyan was recorded in the P.O. village, Jaunpur on 7.3.1998 at 11:00 A.M. by Sub Inspector of Police, D. Sharma, (PW-14). The prosecution case in brief is that on the same date i.e. 7.3.1998 at about 6:00 A.M., the informant and his brother, Rameshwar Chaudhary @ Naresh Chaudhary started to go out of village for attending call of nature. They proceeded towards East for going to South. The deceased was about eight yards ahead of informant and behind the informant at about ten yards was his mother, Muneshwari Devi (PW-6). When they reached in front of house of Saba Chaudhary then Saba Chaudhary fired a shot with a country made pistol from East- South corner of his house which hit Rameshwar Choudhary on the chest who tried to turn around but at that time 2nd shot fired by Ashok Chaudhary, son of Saba Chaudhary with a country made pistol again hit him on the chest. Rameshwar Chaudhary turned towards West and at that time another shot fired by Saba Chaudhary hit him in the waist and he fell down. Thereafter, Arvind Chaudhary, another son of Saba Chaudhary inflicted indiscriminate chhura, blows which caused several cut injuries and the injured, Rameshwar Chaudhary @ Naresh Chaudhary died at the place of occurrence itself. Rameshwar Chaudhary turned towards West and at that time another shot fired by Saba Chaudhary hit him in the waist and he fell down. Thereafter, Arvind Chaudhary, another son of Saba Chaudhary inflicted indiscriminate chhura, blows which caused several cut injuries and the injured, Rameshwar Chaudhary @ Naresh Chaudhary died at the place of occurrence itself. The reason for the occurrence was alleged to be a land dispute leading to litigation in the Court because the prosecution party had obtained a settlement of three decimals of land from State and had built two rooms over that land. On the cries of the informant and his mother and on hearing the sound of firing several persons of the village assembled which included, Surendra Singh (PW-1), Birendra Singh, Vindhayachal Singh (PW-17). 4. After recording the fardbeyan and forwarding the same to the Officer Incharge of the Police Station, Sub Inspector of Police, D. Sharma took up the investigation. He prepared the Inquest Report (Ex-hibit-6) on 7.3.1998 at 11:20 A.M. and inspected the place of occurrence. He also seized blood stained earth from the place of occurrence, recorded the statement of witnesses and sent the dead body for postmortem examination. After completing investigation, chargesheet was submitted against all the named three accused, the three appellants. In course of trial the accused pleaded not guilty to the charges. Their plea appears to be a false implication on account of enmity and suspicion and that no such occurrence had taken place at the time and in the manner alleged by the prosecution. The accused persons also took plea of alibi that at the relevant time they were not present at the place of occurrence and were at Bokaro steel City, where they normally reside. After trial they have been convicted and setenced by the impugned judgment and order as noticed earlier. 5. The prosecution in order to prove the charges has examined altogether 17 witnesses. PW-1, Surendra Singh is a co- villager of the parties and is named in the FIR as a witness. PW-2, Ramjee Chaudhary is son of the deceased whose presence is not mentioned in the fadbeyan. He has claimed to be an eyewitness. PW3, Fateh Bihari Singh has claimed to be a hearsay witness. PW-1, Surendra Singh is a co- villager of the parties and is named in the FIR as a witness. PW-2, Ramjee Chaudhary is son of the deceased whose presence is not mentioned in the fadbeyan. He has claimed to be an eyewitness. PW3, Fateh Bihari Singh has claimed to be a hearsay witness. According to hirm at 6:30 in the morning, there was a hulla that Saba Chaudhary and Ashok Chaudhary have killed Naresh Chaudhary, On such bulla, he along with PW-1, Surendra Singh, PW- 4, Ram Nath Singh and PW-17, Vindhayachal were to the place of occurrence together and saw the dead body of the deceased. The name of the assailant was disclosed by Suresh, Chaudhary, the informant. PW-4, Ram Nath Singh is a co- villager who has claimed to have seen the occurrence from a distance from his orchard. According to PVV-3, this witness along with PW-1 and PW-17 had come to the place of occurrence after the occurrence and had seen only the dead body. This witness has not named Arvind among the assailants. PW-5, Satyendra Singh is a co-villager who has claimed to be an eyewitness. He has not named accused Arvind among the assailants any does not mention infliction of knife injury on the deceased. 6. PW-6, Muneshwari Devi, is mother of the deceased named in the fardbeyan as an eyewitness. Her evidence will be dealt with separately along with evidence of PW-1 who is also named in the fardbeyan and evidence of other relations of the deceased such as PW-2, Ramjee Chaudhary, a son of the deceased, PW-8, Raj Kumari Devi @ Buchchi, a sister of the deceased, and the informant PW-11. 7. PW-7, Ram Bilas Singh is a co- villager who is a hearsay witness and has claimed that he was never examined by the police in course of the investigation. PW-9, Kapil Deo Singh is a co-villager who was only a hearsay witness before the Investigating Officer but in Court has claimed to be an eyewitness. He does not mention presence of any of the relations of the deceased including the informant when he allegedly came to the place of occurrence on hearing sound of firing, he saw PWs. 1, 3, 4 and 5 they were also raising bulla. Besides them, he did not see anybody at the place of occurrence as per paragraph-3 of his cross-examination. 1, 3, 4 and 5 they were also raising bulla. Besides them, he did not see anybody at the place of occurrence as per paragraph-3 of his cross-examination. PW-11, Ram Suresh Chaudhary is the informant whose evidence shall be dealt separately. PW-13, Chandradeep Paswan and PW-17, Vindhyachal Singh have been declared hostile. 8. PW-10, Ram Chhabila Singh Hawaldar is a formal witness who has proved certain material exhibits such as blood stained earth and wearing apparel of the deceased. PW-12, Dr. J.N. Shukla conducted the postmortem examination of the deceased on 7.3.1998 at 3:00 P.M. He has proved the postmortem as exhibit-4. According to the postmortem report there was a multiple smoked burnt out margined wound on left side upper abdomen with puckard out margin with lacerated and red blood. This injury marked as "A" was opined to be by Patakha (Crackers) like fire-arm weapon. The 17 injuries under the category "B" were opined to be by sharp pointed weapon such as Chhura and those injuries were found to be cause of death. 9. The main Investigating Officer, Devendra Sharma has been examined as PW-14. According to him the place of occurrence is a used road on Souther end of village, Jaunpur. On the North of the PO is a pucca house of accused, Saba Chaudhary which faces East and is under construction. Adjacent West is a house consisting two rooms facing West which is fitted with grill and is said to be subject matter of dispute. Adjacent West to that is a lane going from North to South and adjacent West to that lane is the mud built tiled house of prosecution party which faces east. The houses of both the parties are close-by situated on general passage or road on the South. That road on reaching East of the house of the accused turns towards.south for going out and there is an electric pole at that junction point of two roads. Opposite to the house of accused, Saba Chaudhary, on the South of the East- West road is pucca house of one Briksha Singh which consists of three rooms facing East. From the North-East corner of that house of Briksha Singh at about three yards towards West and at three yards from the Southern wall of house of accused, Saba Chaudhary, was the dead body of Rameshwar Chaudhary which was found soaked in blood. From the North-East corner of that house of Briksha Singh at about three yards towards West and at three yards from the Southern wall of house of accused, Saba Chaudhary, was the dead body of Rameshwar Chaudhary which was found soaked in blood. The PO was found close to several houses on a used road. Large quantity of blood was found at the place of occurrence. Blood stained earth was seized for which a seizure list was prepared and was proved as Exhibit-7. 10. PW-15, Sakaldeep Ram is another Investigating Officer, he investigated into the claim of the accused persons that they were present at Bokaro. Plea of alibi was not found by him to be satisfactory and acceptable. He sent material exhibits for examination by Forensic Science Laboratory, Patna and submitted charge-sheet. 11. PW-16, Hawaldar Ram Nagina Singh is a formal witness who has proved a station diary entry no. 158 dated 7.3.1998 to show that at 9 : 30 A.M. a rumour was heard that a murder had taken place in village Jaunpur and for its verification some police officials including Sub Inspector, D- Sharma proceeded to that village. The report of Forensic Science Laboratory, showing blood marks on material exhibits has been marked as Exhibit-9. 12. The defence has examined two witnesses. DW-1, Chamru Chaudhary has claimed that on 6 and 7.3.1998 accused, Saba Chaudhary had worked in Bokaro Steel City Plant where this witness is also an employee. He has also claimed that he knows accused, Ashok & Arvind, the sons of accused, Saba Chaudhary and they were also at Bokaro on 6 and 7 March, 1998. He has also admitted that he and Saba Chaudhary work in two different, departments. DW-2, Ashrafi Manjhi has stated that on 7.3.1998 he was posted as ASI at Barun PS and the fardbeyan (Exhibit-5) is in his hand-writing although he has not signed on that document. Similar claim has been made by him in respect of Inquest Report (Exhibit-6). He has claimed that case number with date mentioned on the inquest Report is in the hand-writing of Sub-Inspector, Devendra Sharma and it has been marked as Exhibit-"A". 13. On behalf of the appellants, it has been submitted that according to fardbeyan the occurrence was witnessed by the informant, PW-11, his mother, PWs.-6 and 2 co-villages, PW-1 and PW-17. He has claimed that case number with date mentioned on the inquest Report is in the hand-writing of Sub-Inspector, Devendra Sharma and it has been marked as Exhibit-"A". 13. On behalf of the appellants, it has been submitted that according to fardbeyan the occurrence was witnessed by the informant, PW-11, his mother, PWs.-6 and 2 co-villages, PW-1 and PW-17. Out of them PW-17 has been declared hostile and PW-1 also cannot be treated as a real eyewitness for the reason that PW-3 has categorically asserted that he reached at the place of occurrence on hearing hulla after half an hour hearing the sound of firing and PW-1, PW-4 and PW-17 went to the place of occurrence with him. It was also highlighted that PW-1 cannot be relied because he has given a different version of the occurrence claiming that he saw only two firing being made and has not named Arvind Chaudhary to be present among the as- sailants or to have assaulted the deceased with Chhura. Further submission is that on close scrutiny of evidence of PW-11, the informant and PW-6, the mother of the deceased, they will also appear to have falsely claimed to be eyewitnesses and they being inimical and interested witnesses, should not be relied upon because of apparent conflict with medical evidence which falsifies the allegation of three shots to the deceased by fire arms. 14. On a careful examination of evidence of PWs. 3, 4, 5, 7 and 9 who are co- villagers and not named in the fardbeyan as witnesses, it is found that they cannot be relied upon regarding the manner of the actual occurrence and participation of the three accused as alleged by the prosecuting. No doubt, these witnesses are co- villagers and appear to be independent and uninterested but PW-3 has clearly admitted to be a hearsay witness and further he does not claim to have heard the name of appellant Arvind from the informant. PW-4 has claimed to be an eyewitness but such claim becomes doubtful in view of statement of PW-3 that PWs-1 and 4 came to the PO with him and after about half an hour of sound of firing. PW-4 also does not name accused, Arvind. PW-5 names Arvind and claims to have seen the occurrence as an eyewitness. He has not mentioned. PW-4 also does not name accused, Arvind. PW-5 names Arvind and claims to have seen the occurrence as an eyewitness. He has not mentioned. The presence of mother of the deceased at the place of occurrence, as claimed by the prosecution. He has claimed the occurrence to be of 6:00 A.M. and that he was going from his house to boring for attending call of nature. But in cross-examination he has stated that his boring is 150 yards South of the village and he left his house for going to the boring at 5:00 A.M. in morning and at that time he claimed to have seen PW-4 and PW-13. He has admitted that he takes liquor but has clarified that he was not drunk at the time of deposing in Court on that date. In paragraph-11 of his evidence he has claimed to have gone close to the dead body and seen the injuries. According to him the deceased had two fire arms injuries on the backside of waist. He has not claimed to have seen any knife injuries. 15. PW-7, Ram Bilash Singh is a hearsay witness who claims to have reached the place of occurrence after hearing sound of firing and commotion. There he was told by informant and others that three accused have committed the offence. He has admitted that he has never given any statement to the police and for the first time he was deposing in Court only. PW-9, Kapildeo Singh has claimed to be an eyewitness of the alleged occurrence. In paragraphs of his deposition he has claimed that when he same out of the house then in the vicinity he saw 10-12 persons including PWs-1, 3, 4 and 5 who were shouting. He has not mentioned the presence of any of the relatives of the deceased at or near the place of occurrence. His attention was drawn to his earlier statement before the police but he denied that earlier he had claimed to be only a hearsay witness of the occurrence. The I.O., PW-14 has stated in Paragraph-41 of his deposition that PW-9 has not claimed before him to be an eyewitness and had given only a hearsay account of the occurrence. Paragraph-12 of the deposition of PW-6, Muneshwari Devi, which will be discussed in some detail later on, also shows that these witnesses, i.e. PWs-3, 4, 5, 7 and 9 etc. Paragraph-12 of the deposition of PW-6, Muneshwari Devi, which will be discussed in some detail later on, also shows that these witnesses, i.e. PWs-3, 4, 5, 7 and 9 etc. appear to have come later on hulla and she disclosed the occurrence to them. 16. In view of the aforesaid discussions in respect of other witnesses it is clear that prosecution case rests mainly upon evidence of the informant PW-11, the FIR named witness, Surendra Singh, PW-1, another FIR named witness, Muneshwari Devi, PW-6 who is mother of the deceased, PW-2, Ramjee Chaudhary, son of the deceased and Raj Kumari Devi, PW-8, sister of the deceased. 17. PW-1, Surendra Singh has supported the prosecution case only in respect of one fire arm injury to the deceased by Saba Chaudhary and the second fire arm injury by Ashok Chaudhary, both in chest. He has not named Arvind Chaudhary as the assailant nor he has mentioned the presence of the informant or his relations, PWs-2, 6 and 8 at or near the place of occurrence. He has given an unconvincing statement that after the second firing he ran away from the place of occurrence and came back after some time to find Rameshwar Chaudhary dead. Before the police, as appears from Paragraph-46 of the deposition of PW-14, this witness had claimed that when he was at some distance in the East from the Darwaza of accused, Saba Chaudhary then he saw Saba Chaudhary firing a country made pistol from South-East corner of his house but in Court he has claimed that when he reached near the temple of God Shankar near the house of Saba Chaudhary, he saw Rameshwar Chaudhary coming and also saw Saba Chaudhary coming out of his house and firing at Rameshwar. He has disclosed that his house is in the middle of the village at a distance of about 400-500 yards from the house of accused Saba Chaudhary. He has further claimed that besides him the occurrence was seen by PWs-4 and 5. In the cross-examination he has stated that behind the deceased his brother, Suresh Chaudhary, (Informant) was at a distance of 8 to 10 yards. 18. PW-2, Ramjee Chaudhary is son of the deceased whose presence at the PO is not mentioned in the fardbeyan. He has further claimed that besides him the occurrence was seen by PWs-4 and 5. In the cross-examination he has stated that behind the deceased his brother, Suresh Chaudhary, (Informant) was at a distance of 8 to 10 yards. 18. PW-2, Ramjee Chaudhary is son of the deceased whose presence at the PO is not mentioned in the fardbeyan. He has claimed that at the time of occurrence he was washing his mouth at his Darwaza and his father, the deceased and his uncle, the informant both were going to attend call of nature. When they were at a distance of 5 to 7 yards from Darwaza of Saba Chaudhary then Saba Chaudhary came in front of his father and fired causing injury in the chest. Thereafter, Ashok Chaudhary came running with pistol and fired causing injury in the chest. His father wanted to run away but Saba Chaudhary again fired causing injury in the waist. On this, his father fell down and then Arvind Chaudhary came with a knife and made indiscriminate assault on back, thigh, head and then turned him and assaulted on chest causing instant death. He has admitted that accused, Saba Chaudhary is maternal uncle of his father, the deceased, and the other two accused are sons of Saba Chaudhary. Saba Chaudhary was employed at Bokaro and other two accused also had their business there. He has denied that there was any altercation before the occurrence. In cross-examination he has claimed that he was ten steps behind his uncle, the informant. He has not mentioned the presence of Muneshwari Devi, PW-6, the mother of the deceased or Raj Kumari Devi, PW-8, the sister of the deceased at or near the place of occurrence. He has given the length of pistol as less then one cubit but has expressed his inability to state the length of blade of the knife. In Paragraph-20, he has stated that after 10 minutes of the occurrence, the Chaukidar came. His uncle went with him to the Police Station at about 6:30 in the morning. The Officer Incharge along with constables came at 11.00 A.M. The I.O. has contradicted this witness on the point that before him he had not claimed to be washing his mouth at his Darwaza at the time of occurrence. 19. PW-6, Muneshwari Devi is named in the fardbeyan as a witness of the occurrence. The Officer Incharge along with constables came at 11.00 A.M. The I.O. has contradicted this witness on the point that before him he had not claimed to be washing his mouth at his Darwaza at the time of occurrence. 19. PW-6, Muneshwari Devi is named in the fardbeyan as a witness of the occurrence. She has stated that on the date of occurrence at about 6:00 in the morning she has swept her house and she was going to throw the collected dirt when the alleged occurrence took place. The deceased followed by the informant were going to attend the call of nature. When the deceased was still at a distance of ten cubits from the Dalan of Saba Chaudhary, Saba came out from hiding and shot in the chest of the deceased. Accused, Ashok Chaudhary came out and he also shot in the chest of Rameshwar who then tried to turn back but Saba Chaudhary shot in the waist. When the deceased fell down, Arvind came and assaulted with Chhura on chest, abdomen, head, thigh and waist causing instant death. He Claimed that occurrence was seen by her daughter, Raj Kumari (PW-8), Ramjee (PW-2), Fateh (PW-3) and others. She has also admitted that there was earlier enmity between the parties and also litigation. She has stated that the deceased and the informant were also working at Bokaro. In cross-examination she has admitted that the accused persons had been victorious in all the litigations relating to land. She has admitted that earlier she had filed a criminal case of setting her house on fire against the accused Saba Chaudhary and two others in which the accused persons were acquitted. PW-4, Ram Nath was a witness in that case. In paragraph-12 she has claimed that first she heard sound of firing and then the deceased cried. When she reached near the deceased then he fell down and she was the first to reach the deceased. On her hulla the villagers and other arrived which included PWs. 2, 8 and 11. Later on, PWs.- 1, 4, 5, 17 and others also came and made enquiries from her as to how the occurrence had taken place. When she reached near the deceased then he fell down and she was the first to reach the deceased. On her hulla the villagers and other arrived which included PWs. 2, 8 and 11. Later on, PWs.- 1, 4, 5, 17 and others also came and made enquiries from her as to how the occurrence had taken place. She claimed that before arrival of police at about 1:00 in the noon, she had stated about the occurrence to her son, daughter and other villagers and on her say its the informant had gone to the Police Station to give information. She claimed that on arrival, police first recorded her statement and took her thumb impression on that. After five minutes, she stated that statement of Suresh was taken along with his thumb impression. 20. PW-8, Raj Kumari Devi @ Buchchi Devi is sister of deceased whose presence at the time of the alleged occurrence is not mentioned in the fardbeyan. She has stated that on the date of occurrence at 6:00 in the morning she was holding her child who was attending call of nature and she saw the deceased and the informant also going to attend call of nature. Behind them her mother went to throw dust of the house. At that time, accused, Saba Chaudhary who was hiding at his Darwaza fired a shot from there only which hit the chest of the deceased. Ashok Chaudhary caused second fire arm injury in the chest and when the deceased wanted to run back, Saba Chaudhary again fired causing injury in the waist and as a result the deceased fell down. Arvind Chaudhary assaulted him with knife on back, neck and after turning him, again assaulted in the abdomen causing death. By that time many villagers including PWs.-1, 4 and 5 arrived and saw the occurrence. In cross-examination she has admitted that she was married 20 years earlier and has three children. She claimed that she had come to her mothers house about six months earlier because her mother was ill. She admitted that both of her brothers have spouses and children. She claimed that on the date of occurrence she went back to her husbands village and had come to the Court from there to depose as a witness. She has claimed that after hearing first sound of firing she raised hulla, thereupon the accused persons began threatening her. She admitted that both of her brothers have spouses and children. She claimed that on the date of occurrence she went back to her husbands village and had come to the Court from there to depose as a witness. She has claimed that after hearing first sound of firing she raised hulla, thereupon the accused persons began threatening her. She admitted that the fact of threatening was not disclosed by her to any one earlier. She said that because of threatening neither the informant nor her mother went to intervene or apprehend. Nobody caught the deceased even after the accused had fled away. She has denied that at the time of occurrence she was at her husbands house. The I.O., PW- 14 has contradicted her by saying that she had not stated that Arvind turned Rameshwar Chaudhary and again assaulted in the abdomen with knife. 21. PW-11, Ram Suresh Chaudhary, the informant has stated that he was eight yards behind his elder brother, the deceased and they were going to attend call of nature at about 6:00 in the morning of date of occurrence. He has also stated that behind him came his mother for throwing dust etc. His nephew, (PW 2) was washing his mouth from before and his sister (PW- 8) had gone to a ditch so that her child may attend the call of. nature. Saba Chaudhary fired on the chest of the deceased, thereafter, Ashok Chaudhary also fired on the chest. When Rameshwar wanted to run away Saba Chaudhary fired third shot on the waist. When Remeshwar fell down, Arvind Chaudhary went and assaulted indiscriminately with a knife on back head, thigh, waist and hand. He turned Rameshwar and further assaulted on chest causing his death. He stated that the occurrence was on account of earlier enmity and litigation. He has proved the fardbeyan as Exhibit-3 and also the signature of witnesses on the fardbeyan as Exhibit-3/A and 3/B. He identified the material exhibits including clothes of the deceased which were marked as material exhibits. He has stated in cross-examination that after recording his beyan police recorded the statement of his mother, sister, nephew and Surendra Singh (PW-5). He has proved the fardbeyan as Exhibit-3 and also the signature of witnesses on the fardbeyan as Exhibit-3/A and 3/B. He identified the material exhibits including clothes of the deceased which were marked as material exhibits. He has stated in cross-examination that after recording his beyan police recorded the statement of his mother, sister, nephew and Surendra Singh (PW-5). He has admitted that his further statement was recorded on the next date of the occurrence and in that also he did not claim that his nephew was washing his mouth from before and that his sister had come out with her child so that the child could attend the call of nature in a ditch. He claimed that he had stated before the police that Rameshwar was turned and thereafter assaulted in the chest. But PW-14, the I.O. has contradicted him on this point. The I.O. has confirmed that he had not stated earlier that his nephew was washing his mouth from before or his sister had come out with her child so that the child could attend the call of nature in a ditch. In cross-examination, he has claimed that on receiving the first shot his brother (deceased) shouted "Mama, What are you doing?". He admitted that this, he had not disclosed earlier to any one. He also claimed that Saba Choudhary fired both the shots not from South-East corner of his house but from the front after coming in the lane. He further claimed that after the third shot he developed fear and his mother asked him to run away otherwise he also will be killed and then he fled away. After 5-6 minutes when the accused had run away he went near the body of his brother. He denied the suggestion that during dark hours his brother was killed by unknown persons and that his brother had not received any gun shot injury. 22. The broad features of depositions of witnesses such as the informant, PW 11, Surendra Singh (PW 1), Muneshwari Devi (PW 6), Ramjee Choudhary (PW 2) and Raj Kumari Devi (PW 8) who were categorised as crucial and important witnesses for the prosecution, have already been noted above. 22. The broad features of depositions of witnesses such as the informant, PW 11, Surendra Singh (PW 1), Muneshwari Devi (PW 6), Ramjee Choudhary (PW 2) and Raj Kumari Devi (PW 8) who were categorised as crucial and important witnesses for the prosecution, have already been noted above. It has already been submitted on behalf of the appellants that PW 1, Surendra Singh, cannot be relied upon as an eye witness of the occurrence because he does not mention the presence or involvement of appellant, Arvind Chaudhary at the place of occurrence nor has he assigned large number of Chhura injuries on the person of the deceased to any accused. His version of the occurrence does not fit in with the medical evidence nor with the prosecution case. 23. Regarding PW. 2, Ramjee Chaudhary, and PW. 8, Raj Kumari Devi, it has been submitted on behalf of the appellants that both are family members and close relations of the deceased and the informant. The informant not only named his mother, PW. 6 as a witness of the occurrence but also named some co-villagers such as PW. 1 and PW. 17 in the fardbeyan. In such a situation had the PWs. 2 and 8 been present at the time and place of occurrence, they would not have been left out from the list of witnesses mentioned in the fardbeyan. Learned counsel for the appellants has placed reliance upon judgment of the Supreme Court in the case of Ram Kumar Pandey Vs. State of M.P., AIR 1975 SCC 1026, to submit that when a father had mentioned the name of some of his relations as a witness in that case, the omission to name another son or daughter as a witness was considered an omission relevant under Sec. 11 of the Evidence Act affecting the probabilities of the case. The relevancy of such omission under Sec. 11 of the Evidence Act was pointed out after noticing that an FIR is a previous statement which can, strictly speaking, be only used to corroborate or contradict the maker of it. Even the evidence of PW 6 as discussed earlier, creates doubt regarding presence of these two witnesses, PWs. 2 and 8 at or near the place of occurrence. 24. Even the evidence of PW 6 as discussed earlier, creates doubt regarding presence of these two witnesses, PWs. 2 and 8 at or near the place of occurrence. 24. PW 6, the mother of the informant and the informant, PW 11, are the remaining witnesses whose truthfulness and reliability remains to be decided for the purpose whether they can be relied upon to hold the appellants guilty of causing death of deceased Rameshwar Chaudhary in the manner alleged by the prosecution. At this stage it is relevant to refer to the medical evidence. The doctor has opined that injury marked as (A) may be caused by a cracker from firearm weapon because of smoked burnt out margin of wound on left side upon abdomen. It may, for the sake of arguments, be treated to have been caused by a firearm given the local quality of countrymade arms and ammunition. But still he found no other firearm injury on the person of the deceased and the smoked burnt out margin would still indicate firing from a close range which does not fit in with the prosecution case of firing from 10 cubits (15 feet). Absence of any other firearm injury in view of specific allegation that two of the accused were armed with firearms and had caused three firearm injuries creates serious doubt regarding the prosecution case. The presence of 17 injuries by sharp pointed weapon such as Chhura itself indicates that at the time of assault there was no possibility of any intervention otherwise more firearm injury to do away with the life of the deceased would have been the natural option when two out of three assailants are alleged to be armed with firearms. The fast that some of the hearsay witnesses have also not named Arvind Chaudhary among the assailants when he, as per prosecution case, is the author of Chhura injuries causing death, also creates doubt regarding truthfullness of the prosecution case. 25. PW 11, the informant has clearly departed from the fardbeyan by stating in Court that Saba Chaudhary fired both the shots not from south-east corner of his house but from the front after coming out in the lane. 25. PW 11, the informant has clearly departed from the fardbeyan by stating in Court that Saba Chaudhary fired both the shots not from south-east corner of his house but from the front after coming out in the lane. He has asserted for the first time in Court that after the third shot, he developed fear and on the asking of his mother he ran away and went near the body of the deceased after 5/6 minutes when the accused had run away. PW 6, Muneshwari Devi, has not stated that she asked the informant to run away or else he may also be killed. She has claimed that she was behind the informant but in cross-examination she has stated that she was the first to reach the deceased after hearing the sound of firing and cries of the deceased. According to her, on hulla raised by her, the villagers and others including PWs. 2, 8 and 11 arrived at the place of occurrence. She has also claimed that police first recorded her statement and took her thump impression on that. On further thinking after five minutes she added that statement of Suresh was taken along with his thumb impression. Admittedly, there was enmity and litigation between the parties from before and she has admitted that in the litigation relating to land the accused persons had been successful. 26. In view of aforesaid discussion this Court finds that the prosecution case as discussed by PWs. 6 and 11, cannot be safely relied upon and accepted, more so when these witnesses are partisan and interested and, therefore, need careful scrutiny. The contradiction between the ocular evidence and the medical evidence in such a situation creates further doubt and renders the prosecution case unacceptable for the purpose of maintaining the conviction of the appellants. 27. It was submitted on behalf of the prosecution that the inquest report, Ext. 6, supports the allegation of three firearm injuries on the person of the deceased. In reply, it was submitted by learned counsel for the appellants that inquest report is not a substantive evidence and it can be used only to corroborate or contradict its maker. For this purpose, reliance was placed upon AIR 1956 SC 425 , Surjan Vs. State of Rajasthan, (1983)1 SCC 379 , Moula Bax Vs. State of Rajasthan and AIR 1976 SC 2263 , Laxmi Singh Vs. State of Bihar. For this purpose, reliance was placed upon AIR 1956 SC 425 , Surjan Vs. State of Rajasthan, (1983)1 SCC 379 , Moula Bax Vs. State of Rajasthan and AIR 1976 SC 2263 , Laxmi Singh Vs. State of Bihar. On the basis of those judgments it was submitted that when there are no good grounds to doubt the postmortem report the doctor should be accepted as a better expert regarding nature of injuries and the weapon used and in any case benefit of doubt in such circumstances, should go to the accused. 28. On behalf of the appellants it was further submitted that since the FIR is said to have been drawn up on 7.3.1998 at 14.05 hours, ordinarily it should have been sent to the Magistrate without any delay on the same day and there is no explanation why it was shown to the learned Magistrate on 9.3.1998. On this basis it was submitted that there is room for suspicion that the FIR was ante dated and the prosecution case should be treated to be doubtful on that count also. For this purpose, reliance was placed upon suggestion given to PW 6 end PW 11 that the occurrence had not taken at the time alleged. The suggestion to the I.O., PW 14, in paragraph 34 of his deposition was also highlighted that on 7.3.1998 the fardbeyan of Muneshwari Devi (PW 6) was recorded in the village but that was replaced by another fardbeyan prepared on 8.3.1988 because the first beyan was against unknown persons. In support of this proposition reliance was placed upon judgments of the Supreme Court in the case of State of Punjab Vs. Tarlok Singh, AIR 1971 SC 1221 , Ishwar Singh Vs. State of U.P., AIR 1976 SC 2423 and (1994) Supp. 2 SCC 372, Arjun Marik Vs. State of Bihar. 29. In view of law laid down in the aforesaid cases that Sec. 157 of the Code of Criminal Procedure requires sending of FIR to the Magistrate forthwith and that on facts and circumstances of a particular case delay in sending FIR may lead to a conclusion that the fardbeyan and the FIR had been recorded much later, the statement of PW 6 that police first recorded her statement and obtained her thumb impression on that statement assumes significance. In the facts of the case, it has to be held that the prosecution case, in the instant case, becomes further doubtful in view of aforesaid facts and submissions. 30. As a result, it is held that the prosecution has failed to prove its case beyond reasonable doubts and the appellants are entitled to acquittal on the basis of benefit of doubt. Both the appeals are accordingly allowed. All the three appellants are acquitted of all the charges. Appellants, Saba Chaudhary @ Gurbachan Chaudhary and Ashok Chaudhary are on bail. They are discharged from the liability of their bail bonds. Appellant, Arvind Chaudhary is in custody. He is directed to be released forthwith, if not required in connection with any other case. DHARNIDHAR JHA, J. 31 I agree.