Judgment : AMARESHWAR SAHAY, D. P. SINGH, JJ. ( 1 ) SOLE appellant Gopal Verma @ Shahru verma stands convicted for the offences punishable under Sections 302, IPC and 27 of the Arms Act and sentenced to serve rigorous imprisonment for life and five years respectively, by the Sessions Judge, deoghar in Sessions Trial No. 22 of 1989. However, both the sentences were ordered to run concurrently. ( 2 ) BRIEFLY stated the facts leading to this appeal are that at about 9. 30 to 10. 00 p. m. on 9th of September, 1986, the informant (PW3) had gone to purchase biri from the shop of PW6 Ashok Verma situated in mauza-Kalyanpur, Police Station, Deoghar. It is further alleged that in the meantime, the appellant came there with a country-made pistol in his hand and started threatening the shopkeepers situated nearby showing the pistol that whoever dares to challenge him, he will be killed. It is further asserted that the appellant was pacified by the nearby people after which he sat on a cemented chabutara by the side of the house of PW6. According to the informant, on that chabutara PW1, PW2 and deceased were sitting from before. The appellant started exchanging hot words with the deceased. Immediately, thereafter the appellant fired a shot from his pistol on the deceased causing injuries on upper portion of his left thigh. Then appellant fled away taking the empty cartridge. In the meantime, witnesses assembled. It is also asserted that pw4, PW7 and PW8 were informed regarding the incident who had arrived at the place of occurrence. The deceased was taken for his medical treatment to Deoghar hospital where he was declared dead. According to the informant, this firing was done because of old enmity between the appellant and the deceased. ( 3 ) THE police recorded the statement of informant at 00. 30 hours in between the night of 9/10th of September, 1986 and registered deoghar Police Station Case No. 139 of 1986 under Section 302/201 of the Indian penal Code and Section 27 of the Arms Act against the appellant. The police investigated the case and finally submitted charge-sheet against the appellant who has been put up for trial for offences under Section 302 of the Indian Penal Code and 27 of the arms Act. The police investigated the case and finally submitted charge-sheet against the appellant who has been put up for trial for offences under Section 302 of the Indian Penal Code and 27 of the arms Act. The trial Court after examining the witnesses found and held the appellant guilty for both the offences and sentenced him as stated above. ( 4 ) THIS appeal has been preferred mainly on the grounds that the learned trial Court has not considered the materials available before it properly. It is also asserted that the prosecution case was based upon false and concocted statements. According to the learned counsel for the appellant, the first information report was lodged by an outsider though the presence of PW4, father of the deceased, has been asserted by the witnesses. According to it, the whole story was concocted as the death has occurred much before the alleged time of occurrence. In this context, our attention has been drawn towards the opinion of PW11, the doctor, who conducted the post-mortem examination on the dead body and mentioned the time elapsed since death 18. 00 hours. It is also submitted that the prosecution witnesses have contradicted each other regarding their presence on the place of occurrence as pw1, PW2, PW6 named to have present at the place of occurrence have not supported the prosecution version and were declared hostile. It is also submitted that the Investigating officer has contradicted his own assertions as well as the statements of PW3, pw4 and PW8 regarding their presence at the time of occurrence. Learned counsel has submitted that the appellant was a victim of conspiracy and not involved in alleged crime. It is also submitted that even if the prosecution version is accepted, the intention of the appellant was not to cause death. Other infirmities have been mentioned and asserted before us by the learned counsel for the appellant. ( 5 ) WE have anxiously considered the submissions made on behalf of the appellant along with the materials on record. The prosecution version is based upon the statement of PW3 Tuklal Verma, who is said to be eyewitness of the occurrence. Other named eyewitness PW1, Nakul Verma, the shopkeeper, PW2 Podina Devi and PW6 ashok Ram from whose shop the informant had gone to purchase biri, have turned hostile and denied any knowledge about the occurrence. The prosecution version is based upon the statement of PW3 Tuklal Verma, who is said to be eyewitness of the occurrence. Other named eyewitness PW1, Nakul Verma, the shopkeeper, PW2 Podina Devi and PW6 ashok Ram from whose shop the informant had gone to purchase biri, have turned hostile and denied any knowledge about the occurrence. PW5 Sitaram Rout and PW7 dhanundhar Prasad Yadav, said to be related with the deceased have been tendered by the prosecution. PW10 Amarnath thakur and PW12 S. M. M. Samad, advocates have come to prove the statements of pwl and PW2 made before Notary Public as Exts. 7 and 9 for the prosecution. All these witnesses, PWl, PW2, PW5, PW7, pw10 and PW12, therefore, are not relevant to ascertain the actual incident of firing upon the deceased by the appellant. PW11 dr. Narendra Narayan Das, who conducted the post-mortem examination on the dead body of Panchanan Rout, found firearm injury on the upper portion of left thigh, an entry wound of 0. 5" and exit wound of 1" causing death. He has opined that death might have occurred within 18. 00 hours of the post-mortem examination held at 10. 45 a. m. on 10th of September, 1986. Learned counsel for the appellant has stressed before us this falsifies the time of occurrence said to have occurred at 10. 00 p. m. ( 6 ) PW3, the informant has supported his version before the police and presence of pw4 Ram Tahal Rout as well as PW8 gulchand Rout. According to him, the appellant fired upon the deceased and fled away. PW4 and PW8 are said to have seen the appellant fleeing away with the pistol in his hand at short distance from the place of occurrence. According to PW4, he along with other inmates of the house was coming in search of the deceased as he has not returned when he saw the appellant fleeing away and reached at the place of occurrence to be informed about the incident. PW8 has asserted that he was returning after teaching the son of an advocate to his house when he heard sound of firing at a distance of 100 yards from the place of occurrence. However, he reaches at the place of occurrence along with PW4 and during this time, he could also see the appellant running away with the pistol in his hand. However, he reaches at the place of occurrence along with PW4 and during this time, he could also see the appellant running away with the pistol in his hand. All the three witnesses have been cross-examined at length. According to the learned counsel for the appellant, PW3 Tuklal verma has got animosity with the appellant and interested to implicate him in false case. During cross-examination, PW3 has admitted that the brother of the appellant was murdered earlier for which a criminal case was lodged against the Satsang people by this appellant. It has been brought on record that PW3 was employed in one of the organizations run by Satsang. This witness has also admitted that he was an accused in a case of theft against him and others. According to the learned counsel, this witness was tutored and brought to implicate the appellant falsely in this case at the instance of satsang people. In this context, it is also asserted that the motive is absent to commit the murder. According to the prosecution case, appellant was aggrieved because of dispute over the settlement of ponds between him and the deceased. However, it has come on record from his mouth that the pond was settled in favour of the appellant prior to this occurrence. Therefore, the dispute, if any regarding the settlement of pond could not be the grudge with the appellant. ( 7 ) PW4 and PW8 have asserted that they saw the appellant fleeing away with the pistol in his hand when they were reaching near the place of occurrence. According to pw3, he was going to call PW4 when he met with him vide paragraph 10 of his cross-examination. He further admitted vide paragraph 13 that the settlement of pond was made in favour of the appellant. PW4 has admitted in his examination-in-chief that he was informed by PW3 regarding the incident when he reached at the place of occurrence. He tried to introduce another fact that the appellant has shot the deceased dead because he suspected that the deceased killed his brother. He named PW4, pw7 and PW8 as the persons going in search of the deceased along with him and pw7 and PW8 are his sisters son while pw5 was his son. PW4 and PW7 have not supported the prosecution case, rather, they were tendered. He named PW4, pw7 and PW8 as the persons going in search of the deceased along with him and pw7 and PW8 are his sisters son while pw5 was his son. PW4 and PW7 have not supported the prosecution case, rather, they were tendered. He admitted that till he reached near the house of Moti Rout, he was not knowing that his son was shot dead vide paragraph 15. He asserted vide paragraph 21 that for settlement of pond dispute have taken place five days before this occurrence, which is belied by the admission of the witnesses that ponds were already settled in favour of the appellant. He admitted vide paragraph 25 that false cases were lodged against his dead son. According to PW4, he saw only one hole on the dead body of his son vide paragraph 17. He further admitted that although the fardbeyan was recorded in the hospital, he put his signature on it in the police station vide paragraph 18. He admitted vide paragraph 20 that he cannot say where the settlement of pond was made in favour of the appellant. ( 8 ) PW8 reaches in the vicinity of the place of occurrence at about 9. 30 p. m. and heard sound on firing. Thereafter he went towards the place of occurrence to see that PW4 and his family members going towards the place of occurrence. He further saw appellant fleeing away from the place. This witness has further admitted that he put his signature on the fardbeyan, however, during cross-examination he has admitted that he was coming back after tuition and heard hulla at 40-50 yards away from the place of occurrence. He further admitted that when he heard the sound of firing he rushed towards the place of occurrence, which was situated at 100 yards from this place vide paragraph 8. He could not say that at what distance the appellant was seen fleeing from the place of occurrence vide paragraph 11. He further admitted vide paragraph 15 that the police has not recorded his statement except his signature on the fardbeyan. PW9, the Investigating Officer of this case contradicts these witnesses on the point of assertions vide paragraphs 26 and 27 of his cross-examination. According to this witness he arrived at the hospital at 12. 15 hours in the night of 9/10th of September, 1986. PW9, the Investigating Officer of this case contradicts these witnesses on the point of assertions vide paragraphs 26 and 27 of his cross-examination. According to this witness he arrived at the hospital at 12. 15 hours in the night of 9/10th of September, 1986. He has prepared the inquest report and recorded the fardbeyan of the informant pw4. He arrives at the place of occurrence in the morning on 10. 09. 1986 and described it. According to him, he found blood spread over the grass and hawai sandals, one checkered gamchha and seized it along with bloodstained soil vide Ext. 5. However, this witness has admitted during cross-examination that he has not sent any seized article for forensic examination vide paragraph 18. According to his admission, he did not prepare the injury report but the inquest report prepared by him was not in his writing nor having his signature on it vide paragraph 20. He further admitted that the writings over the inquest report and the seizure list did not tally. According to him, vide paragraph 23 signature of PW4 Tuklal verma on the fardbeyan and the seizure list was in different writings. He has not examined Biran Ram, the person having his shop in the spot. He thereafter contradicted PW3, pw4 and PW8 on material points vide paragraphs 26, 27 and 28 of his cross-examination. ( 9 ) MR. Barnwal, learned counsel appearing for the appellant stressed before us that in view of the materials available on the record, major contradictions have occurred in the statement of so-called eyewitnesses of the occurrence. According to him, PW3 has been tutored and involved in implicating this appellant in false case at the instance of his employer Satsang because of the fact that the appellant has lodged a case under Section 302 of the Indian Penal Code against the head of the Satsang for murder of his brother. It is also submitted that in view of the post-mortem report, death of panchanan Rout has occurred much before the time of occurrence asserted by the prosecution witnesses. It was also stressed before us that the probable and independent witnesses, PW1, PW2 and PW6 have denied any knowledge of the occurrence, as they did not support the false allegation. Therefore, the presence of PW3 at the place of occurrence while actual shot was fired upon becomes doubtful. It was also stressed before us that the probable and independent witnesses, PW1, PW2 and PW6 have denied any knowledge of the occurrence, as they did not support the false allegation. Therefore, the presence of PW3 at the place of occurrence while actual shot was fired upon becomes doubtful. The time elapsed since death was highlighted showing that actual firing might have taken place much earlier and these interested tutored witnesses are implicating the appellant falsely. In this context, contradictions brought on record with the admission of PW9, the Investigating Officer vide paragraphs 26 and 27 have been pointed out. ( 10 ) ON perusal of the evidence of PW9, it is evident that the witnesses, PW3, PW4, and PW8, have not asserted these facts before the Investigating Officer just after the occurrence vide paragraph 26. PW3 was contradicted on the point of dispute over settlement of pond. It has also come on record that PW4 has not asserted before the Investigating Officer that he was going in search of his son when he heard the sound of fire near the house of Moti Rout neither he has asserted that he saw appellant fleeing away with pistol. The Investigating Officer has further contradicted PW8 regarding his presence in the vicinity of the place of occurrence in between 9. 30 to 10. 00 p. m. rather, he stated before him that after hearing about the occurrence, he along with his uncle and other family members reached at the place of occurrence. The conduct of the investigating Officer itself is doubtful as he could not say who has informed him about the said occurrence on phone neither he could produce the station diary entry made by him before leaving for the hospital. It is admitted fact on record that the police station is situated at a short distance from the hospital but he reaches hospital at 12. 15 in the night. The fardbeyan has been recorded at 12. 30 hours. This witness has further admitted that the inquest report produced before the trial Court was not prepared in his writings nor signature vide paragraphs 15, 16 and 20 of his cross-examination. He failed to seize the clothes on the body of the deceased and sent the articles seized from the place of occurrence for Forensic report vide paragraph 18. This witness has further admitted that the inquest report produced before the trial Court was not prepared in his writings nor signature vide paragraphs 15, 16 and 20 of his cross-examination. He failed to seize the clothes on the body of the deceased and sent the articles seized from the place of occurrence for Forensic report vide paragraph 18. We also find that the probable witnesses, PW1, PW2 and PW6, have not supported the prosecution version, rather, they denied any knowledge about the occurrence and the involvement of the appellant in this crime. The presence of pw3 at the place of occurrence at the time of actual firing is also doubtful. The non-examination of the family members of the deceased as PW5 and PW7 creates a reasonable doubt on the prosecution version. The statement of PW3, PW4 and PW8 as discussed above are found inconsistent and uncorroborated. ( 11 ) HAVING considered all the facts and circumstances mentioned above, we are of the view that the prosecution has not been able to prove beyond all reasonable doubts that the appellant has committed that murder of deceased Panchanan Rout in the manner alleged in the night of 09. 09. 1986. Accordingly, we find that the present appeal has got merit and deserved to be allowed. ( 12 ) IN the result, the present appeal is allowed and the order and judgment of the trial Court convicting the appellant is hereby set aside. The appellant is acquitted from the charge levelled against him and discharged from the liability his bail bond. Appeal allowed. --- *** --- .