Judgment Shiva Kirti Singh and Subash Chandra Jha JJ. 1. This appeal is directed against the judgment dated 26th April 2002 passed by learned Additional District and Sessions Judge (Fast Track Additional Court No. ill) Patna in Sessions Trial No. 160 of 1991 whereby both the appellants have been convicted under Section 302 of the Indian Penal Code and sentenced to rigorous imprisonment for life and under Sec. 27 of the Arms Act for which they have been awarded rigorous imprisonment for five years. The sentences are directed to run concurrently. 2. According to the prosecution case the informant Surajdeo Prasad (P.W.5) brother of the deceased Bindeshwari Singh gave his fardbeyan on 28.2.1989 at 8.30 P.M. at Dhanarua Police Station District Patna and alleged that on the same date at 5 P.M. while he was coming back from village Nimra after collecting milk then between Nimra and Pali at Dori Khanda where the field and Boring of Kauleshwar Singh of village Nimra is situated, he saw his she-goat tied and kept by accused Satish Kumar Singh near his Boring. The informant protested leading to abuses by the accused Satish Kumar Singh. The brother of Satish Kumar Singh accused Shambhu Singh also came and started assaulting the informant with slaps and fists. The informant came back to his home where he leant that his she- goat was tied in a nearby field but had managed to break the rope and had grazed the field of accused Satish Kumar Singh son of Kauleshwar Singh and for that reason the she-goat had been tied and kept by the two accused persons. On arrival of the informant at his home, his brother Bindeshwari Prasad Singh went to the accused persons to ask for she-goat. The informant followed him. On seeing his brother the accused Satish Kumar Singh as well as accused Shambhu Singh took out pistols in their hands and proceeded towards the brother of the informant. The informant dissuaded his brother from going ahead but in the meantime accused Shambhu Singh fired his pistol causing injury on the wrist of left hand of Bindeshwari Singh. Satish Singh also aimed his gun on which Bindeshwari Singh started fleeing but Satish Kumar Singh fired causing injury in the back of Bindeshwari Singh to which he fell down and died. Satish Singh also aimed his gun on which Bindeshwari Singh started fleeing but Satish Kumar Singh fired causing injury in the back of Bindeshwari Singh to which he fell down and died. On hulla raised by the informant, witnesses Mundhka Prasad (P.W. 2) and Brij Nandan Prasad (P.W. 1) both co-villagers of the informant came. The accused appellants closed their Boring and fled towards their home. It is alleged that the injuries to the deceased caused bleeding. 3. The case was investigated by P.W. 6 Shankar Dayal Pandey. He has proved the fardbeyan as Exhibit-2, and formal F.I.R. as Ext. 2/2. He claims to have prepared the inquest report in respect of dead body of the deceased and the same has been proved as exhibit-3. He has also proved two seizurelists in respect of blood-stained earth seized from two spots as exhibits 4 and 4/1 and a sketch map of the place of occurrence which has been proved as exhibit-5. He recorded the statement of witnesses and on completing investigation submitted charge sheet against the accused/appellants. After cognizance the case was committed to the Court of Sessions where the appellants pleaded not guilty to the charges and after trial they have been convicted by the impugned judgment, as already noticed above. 4. The defence of the accused/appellants as appearing from the trend of cross- examination is that the deceased was killed at a lonely place by unknown persons at a different place and entirely in different manner and the appellants have been implicated on false allegations. 5. The prosecution in order to prove its case hs examined altogether 7 witnesses. Out of them P.W.1. Brij Nandan Prasad and P.W. 2, Mundhka Prasad, both named in the F.I.R. as witnesses, have claimed to be eye witnesses and are only material witnesses besides the informant (P.W. 5). P.W. 3, Ramjee Prasad has been examined as a formal witness who has proved his signature on the inquest and seizurelists as Exts. 1/3, 1/4 and 1/5. P.W.4, Ambika Das admitted that he is blind since the age of ten years i.e. for about last 60 years. He has claimed that on hearing hulla he went near the dead body end heard the name of accused/appellants that they had killed the deceased Bindeshwari Singh. He has deposed that the dead body was shifted from its original place to a place known as Chirari. He has claimed that on hearing hulla he went near the dead body end heard the name of accused/appellants that they had killed the deceased Bindeshwari Singh. He has deposed that the dead body was shifted from its original place to a place known as Chirari. He has admitted that P.W. 5, the informant, Suryadeo Prasad is his nephew. He has stated in cross-examination that the dead body was shifted on account of fear that it may be taken away by the culprits. P.W. 6, Shankar Dayal Pandey is the Investigating Officer of the case and P.W.7, Vijay Kumar Singh is a formal witness who has proved the postmortem report of the deceased as exhibit-6. 6. Learned counsel for the appellants has placed reliance upon the sketch map of the place of occurrence as prepared by the Investigating Officer and proved and explained by him in his deposition to show that only few drops of blood were found at a place in the Khesari field of the accused persons and that spot was shown by the informant and the witnesses as a place where the deceased was allegedly shot by the accused persons. The spot where accused/appellant Shambhu Singh was allegedly standing at the time of firing at the deceased was shown to be southern ridge of the Khesari field and the spot where from other accused Satish Kumar Singh allegedly fired was on the western ridge. From the map and measurement contained in exhibit-5 and supported by the Investigationg Officer it transpires that accused Shambhu Singh was at a distance of 71 1/2 yards from the deceased and accused Satish Kumar was at a distance of 17 yards from the deceased at the time of alleged firing. It was also shown that the dead body was found kept at Chirari at a distance of 125 yards from the place where the deceased was allegedly shot. The Boring of the accused persons was found at a distance of 130 yards towards south west of the Khesari field. On the other hand, the dead body was found at a distance of 125 yards towards north-east. 7. The Boring of the accused persons was found at a distance of 130 yards towards south west of the Khesari field. On the other hand, the dead body was found at a distance of 125 yards towards north-east. 7. Learned counsel for the appellants thereafter drew our attention to the postmortem report contained in exhibit-6 to show that the doctor found a firm arm injury which had entrance on the chest of the deceased which was apparent from blackened edge surrounded by an area of tottooing size 3" diameter on the left side of chest and the corresponding communicating injury was found on the back of the deceased. The second fire arm injury on the posterior on left palm at the root of thumb with a fracture of underlying bone was also found having blackened margin surrounded by an area of tattooing. The evidence of the informant (PW 5) in paragraph-13 was highlighted to show that according to informant the deceased at the time of firing was at a distances of 3 Bans (approximately 24 feets) and 4 to 5 Bans (32-40 feets) from accused appellants Satish Kumar Singh and Shambhu Singh respectively. According to the informant at the time of firing accused/appellant satish Kumar Singh was on the northern ridge of the filed and accused/appellant Shambhu Singh was on the southern ridge. It is the prosecution case that the distance between northern and southern ridge of the field in question is 74 yards (222 feets) as per measurement made by the Investigating Officer in exhibit-5, the sketch map. It was also highlighted by learned counsel for the informant that according to prosecution case after first firing the deceased started running away from the field towards east and thereafter accused Satish Kumar Singh fired causing injury in the back of the deceased. It was also highlighted by learned counsel for the informant that according to prosecution case after first firing the deceased started running away from the field towards east and thereafter accused Satish Kumar Singh fired causing injury in the back of the deceased. On the basis of aforesaid facts it was submitted that as per objective finding of the doctor the deceased had not sustained any fire arm injury on the back rather the injury was on the chest which could not have been caused at the time of his fleeing away and both the fire arm injury on his person was found to be with blackened margin and with tattooing marks which is possibile only in case of firing from a close range whereas in the present case according to the informant and the witnesses both the shots have been fired from a distance of several yards and shots from such a distance could not have caused blackened margin with tattoing marks. 8. The further submission on behalf of appellants is that the explanation given by the prosecution for admittedly disturbing the place of occurrence before the arrival of the police by shifting the dead body is not reasonable and acceptable. Had there been apprehension and fear of the body being taken by the culprits, it would have been carried to the village and home of the deceased but as found by the Investigating Officer and even according to other prosecution witnesses the dead body was admittedly shifted only to a distance of 125 yards away from the field of the accused persons where he had allegedly received the injuries and fallen down. At the place chirari where the body was shifted and kept, as per evidence there was only open field without any kind of protection to distinguish the place from the actual place of occurrence on the ground of availability of security to the dead body. It has further been submitted on the basis of evidence of the Investigating Officer that where the dead body was found kept there also the Investigating Officer had found sufficient blood which enabled him to seized blood stained earth and at the alleged place of occurrence in the Khesari field He admittedly found few drops of blood. It has further been submitted on the basis of evidence of the Investigating Officer that where the dead body was found kept there also the Investigating Officer had found sufficient blood which enabled him to seized blood stained earth and at the alleged place of occurrence in the Khesari field He admittedly found few drops of blood. Hence it has been submitted that clearly the deceased had not received both the injuries in the Khesari field and had not fallen there otherwise there should have been sufficient biood found there because the injury on the chest was a through and through injury causing wound of exit also on the back and from such wound there was found to be sufficient flow of blood. 9. In order to appreciate the aforesaid submissions we were taken through the deposition of P.Ws. 1, 2 and P.W. 5, the informant. According to the Fardbeyan P.Ws. 1 and 2, the co-villagers of the informant arrived after the firing on nulla raised by the informant but P.W.1 has claimed to have heard one sound of firing before coming to the place of occurrence and has further claimed that he saw firing by Satish Kumar Singh. However, as would appear from paragraph-13 of his deposition he had not specifically stated in his statement before the polie as to on what part of the body of the deceased Satish caused injury by fire arm. Even in Court he has avoided to support the informants version in the fardbeyan that shot fired by Satish caused injury in the back of the deceased. He has admitted in paragraph-11 that he along with P.Ws. 2 and 4 had accompanied the informant to the Police Station. P.W. 2, Mundrika Prasad also allegedly came on hulla raised by the informant after the firing but he has claimed to have seen firing by both, Shambhu Singh as well as by Satish Kumar Singh. According to him after Shambhu Singh fired the deceased ran and then Satish fired. 2 and 4 had accompanied the informant to the Police Station. P.W. 2, Mundrika Prasad also allegedly came on hulla raised by the informant after the firing but he has claimed to have seen firing by both, Shambhu Singh as well as by Satish Kumar Singh. According to him after Shambhu Singh fired the deceased ran and then Satish fired. He has avoided to make any specific statement as to whether firing made by accused Shambhu Singh caused any injury or not and whether the firing made by accused Satish Kumar Singh caused injury in the back or chest but in cross- examination he has claimed that before firing at the deceased, both appellants Shambhu Singh and Satish Kumar Singh were on the west ridge of the field in question and in paragraph-6 of his deposition he has specified that after first firing by appellant Shambhu Singh. Bindeshwari Singh ran towards east and then he received shot fired by accused Satish Kumar Singh. He has stated that he could not see on what part the shot fired by Shambhu Singh hit the deceased but he is specific that at the time of firing Satish was on the western side of the field and deceased was running away towards east. Thus, according to the statements of P.Ws. 1 and 2 the deceased had received injuries on account of shots fired from a distance and the shot fired by Satish was bound to cause wound of entry on the back of the deceased as he was running away due to earlier firing made by accused Shambhu Singh. 10. The informant (P.W. 5) has admitted in paragraph-16 of his deposition that P.W. 1 Brij Nandan Prasad and P.W. 2, Mundrika Prasad are his neighbours as their houses are situated nearby. He has also admitted that all the witnesses are from his own caste although in paragraph-17 he has further admitted that in his village people belonging to different castes reside but he had not mentioned about the case and the occurrence to persons of any other caste. 11. He has also admitted that all the witnesses are from his own caste although in paragraph-17 he has further admitted that in his village people belonging to different castes reside but he had not mentioned about the case and the occurrence to persons of any other caste. 11. On a serious consideration of the submissions raised on behalf of the appellants specially in relation to the distance from where two accused allegedly fired at the deceased and the objective finding of the doctor in the post-mortem report showing that both the injuries had blackened margins and tattooing marks, it is clear that the medical evidence in this case is contradictory to the claim of the witnesses. It is also noticed that although the informant had originally claimed in the fardbeyan that besides injury on the left palm the deceased had received injury on the back but in Court the informant as well as the witnesses have avoided to stick to the earlier claim and have not specified as to on what part the two shots caused injuries to the deceased. Thus, it is clear that instead or directly challenging the medical evidence, the occular evidence is itself being shifted. Even otherwise, if the firing had taken place in the manner alleged i.e. from a long distance from several yards, there was no question of both the injuries causing blackening and tattooing marks. Had the prosecution examined the doctor, it could have assailed the opinion of the doctor by cross-examining him but having chosen to bring on record only the postmortem report and not having examined the doctor, in the facts of the case the prosecution cannot be permitted to take the stand that the findings of the doctor recorded in the postmortem report were not trust-worthy. Moreover, the claim of P.Ws.1 and 2 who have been examined to corroborate the case of the informant, that they came on hulla and actually saw the occurrence is not free from doubt because the occurrence took place in the month of February which is a winter season, after 5 P.M. The occurrence has taken place in a field which lies between two villages and is adjacent to cremation ground (Chirari). Cremation grounds are generally away from the inhabited areas of the village. Hence, their claim that they came on hulla but still saw the occurrence Is not free from doubt. Cremation grounds are generally away from the inhabited areas of the village. Hence, their claim that they came on hulla but still saw the occurrence Is not free from doubt. The testimony of the informant that he followed is brother and dissuaded him from proceeding further when the accused persons took out pistols shows that he has claimed to be very close to the deceased when the firing took place but apparently he was neither chased nor he had sustained any injury. His version of the occurrence is not supported by the medical evidence as apparent from the postmortem report, exhibit-6. Hence his claim of being present and seen the occurrence is also not free from reasonable doubt. 12. The submission that there is no reasonable and acceptable explanation for disturbing the place of occurrence and shifting the dead body also appears reasonable because the shifting of the dead body before the arrival of the police raises a doubt regarding actual place of occurrence specially when only few drops of blood were found in the Khesari field of the accused. If there was threat to the dead body such threat was difficult to be eliminated by shifting the dead body to another open field only at a distance of 125 yards. 13. For the aforesaid reasons we are unable to accept and approve the findings of the Trial Court that the prosecution has proved the charges against the appellants of firing and killing the deceased beyond reasonable doubts. In view of discussions made above we are of the opinion that the appellants are entitled to benefit of doubt. Accordingly, they are acquitted of the charges. Their appeal shall stand allowed. It appears that appellant no.2, Satish Kumar Singh is in custody. He should be released from jail custody forthwith if not required in connection with any other case. Appellant no.1, Shambhu Singh appears to be on bail. He shall stand discharged from the liabilities of the bail bonds.