JUDGMENT By Court.-This appeal has been preferred by the appellant against the impugned judgment of conviction and order of sentence dated 7.2.2000 passed by the learned 5th Additional Judicial Commissioner. Ranchi in S.T. No. 674 of 1994 whereby the appellant has been convicted under Section 302 I.P.C. and Section 27 of the Arms Act. The appellant was sentenced to undergo life imprisonment for the offence under Section 302 I.P.C. and for the period of three years for the offence under Section 27 of the Arms Act. 2. The prosecution was launched on the basis of the fardbeyan of Shaili Mathew, the wife of the deceased dated 22.7.1994. 3. The prosecution case, in brief, is that in the intervening night of 21/22.7.1994 at about 12 O' clock, the accused Mathu Kumar Sao @ Mathua came to the house of Manoj Kumar Sahu in the Railway Colony near Railway Gumti No.4, Hatia and called Manoj Kr. Sahu to open the door. Manoj replied, it was dead night and did not open the door. The accused, thereafter, threatened and asked to open the door. Manoj, thereafter, opened the door and came out. No sooner Manoj came out, the accused allegedly fired pistol at Manoj causing him serious injury in the left eye and cheek. Mother and sister of the deceased also came out. Mother of Manoj chased the accused but he could not be caught. Manoj Kr. Sahu died due to injuries on the spot. The reason as stated by the informant was that on previous day, in the evening, there was some altercation between Manoj Kumar Sahu and the accused. The informant claimed that the occurrence was witnessed by the informant and Urmila, sister of the deceased in the light of the lantern. 4. On the basis of said fardbeyan, the police registered a case against the accused appellant under Section 302 of the I.P.C. and Section 27 of the Arms Act and after conclusion of investigation the police submitted the charge-sheet. 5. Charge under Section 302 I.P.C. and Section 27 of the Arms Act was framed against the accused appellant. The appellant denied the charges and claimed to be tried. He was put on trial. In his examination under Section 313 Cr.P.C., he denied to have committed any offence. 6. 5. Charge under Section 302 I.P.C. and Section 27 of the Arms Act was framed against the accused appellant. The appellant denied the charges and claimed to be tried. He was put on trial. In his examination under Section 313 Cr.P.C., he denied to have committed any offence. 6. The prosecution in order to establish charges against the appellant altogether examined six witnesses: P.W. 1 Urmila Devi, is the sister of the deceased; P.W. 2 Budhini, is the mother of the deceased. Both of them claimed to be eye witnesses of the occurrence; P.W. 3 & P.W. 4 said to be seizure list witnesses but they have stated that their signatures were taken on blank paper. The said witnesses were declared hostile; P.W.5 Ratan Baraik, is the witness to the Inquest Report. He has proved signature on the Inquest Report (Ext.-1/1), however in Paragraph-5 he has stated that his signature was taken on the blank paper; P.W. 6 Dr. Ram Sewak Sahu, had conducted post mortem on the dead body of the deceased Manoj Kumar Sahu. The doctor opined that the death of the deceased Manoj Kumar Sahu was due to head injury. 7. The Investigating Officer and informant have not been examined in this case. 8. Prosecution had proved only the signature on the seizure list (Ext.-1). Similarly P.W. 5 had proved his signature on inquest report which has been marked as Ext.-1/1 but the Inquest Report had not been proved. The informant, as stated above, had not been examined and the fardbeyan and the F.I.R. was not proved even by producing any other witness. However, the post mortem report had been proved by P.W. 6 Dr. Ram Sewak Sharma as Ext.-2. 9. Learned trial court, on conclusion of trial, found the appellant guilty of the charges under Section 302 I.P.C. and 27 of the Arms Act and accordingly convicted the appellant for committing the said offences. Court below heavily relied upon the evidences of two witnesses namely Urmila Devi (P.W. 1) sister of the deceased and Budhini (P.W. 2) mother of the deceased, coupled with the evidence of the doctor P.W. 6. Court below heavily relied upon the evidences of two witnesses namely Urmila Devi (P.W. 1) sister of the deceased and Budhini (P.W. 2) mother of the deceased, coupled with the evidence of the doctor P.W. 6. He found, though the fardbeyan and the F.I.R. have not been proved by the prosecution, but there are sufficient evidence in support of the charges against the accused person and the prosecution case is proved by the said evidence of P.W.1 and P.W.2 as also by the medical evidence. 10. Learned counsel for the appellant has assailed the impugned judgment of conviction and sentence of the court below and submitted that there is no cogent and positive evidence in support of the charges. The evidences which have been relied upon by the learned trial court for convicting the accused appellant are inconsistent, contradictory and inadmissible The prosecution failed to bring the informant, Investigating Officer and any other independent witness to prove the charges. There is no explanation of withholding the said important evidence. Learned trial court has committed an error of law as well as fact in basing his judgment by projecting P.Ws.1 and 2 as eye-witnesses to the occurrence. The impugned judgment is vitiated and unsustainable. Learned counsel further submitted that the alleged occurrence took place in the dead night at about 12 O' clock, admittedly it was a dark night. There was no source of light outside the house where occurrence took place. P.W.1 Urmila Devi had stated lantern was burning inside the house. She is however not the eye witness of the occurrence as admitted by herself in Paragraph-7 of her deposition. She stated that mother had seen the occurrence. P.W. 2, Budhini Devi, mother of the deceased though had stated that the accused appellant had fired at Manoj and he sustained injuries and succumbed to the injuries but she had not stated about any source of light at the place of occurrence though she stated that she had chased the accused. But statement had been contradicted by her subsequent statement where she stated in Paragraph-9 that she all along remained with the dead body and did not move outside. Learned counsel submitted that there was neither any eye witness nor any circumstantial evidence on record to support the prosecution case and prove the charges against the appellant. Evidences of P.W. 2 and P.W. 3 are full of material contradictions. Learned counsel submitted that there was neither any eye witness nor any circumstantial evidence on record to support the prosecution case and prove the charges against the appellant. Evidences of P.W. 2 and P.W. 3 are full of material contradictions. The said witnesses in their deposition have stated that there was injury on the left eye of the deceased but the doctor has not found any injury on the left eye. The prosecution failed to prove the place of occurrence and arms used in the occurrence. There was no recovery of firearm which was said to be used in committing murder of the deceased. The Investigating Officer had not been examined to prove the place of occurrence. The Inquest Report had also not been proved due to non-examination of Investigating Officer. The accused appellant was seriously prejudiced as he could not confront the contradictory statements made regarding the place of occurrence, arms used in the occurrence and place where the dead body was found. It was claimed blood stained earth was seized from the place of occurrence but in absence of Investigating Officer and denial of seizure list witness, the same also could not be proved from where blood stained earth was seized. Learned counsel submitted that there was further contradiction regarding lodging of F.I.R. The instant case had been initiated on the basis of fardbeyan/F.I.R. lodged by Shaili Mathew, the wife of the deceased whereas the mother of the deceased Budhini had claimed in Paragraph-1 in her deposition that the F.I.R. was lodged by her in the next morning. Prosecution had suppressed the said version of the F.I.R and failed to explain as to how statement made by the Shaili Mathew had been treated as F.I.R. and how the case has proceeded on that basis. Learned counsel submitted that this is a case of no evidence and the conviction and sentence of the appellant has absolutely no legal and factual basis. The judgment of the court below is not based on any legal evidence and is wholly perverse and illegal and the same is liable to be set aside by this Court. 11. Learned A.P.P., on the other hand, submitted that Urmila (P .W. 1), sister of the deceased and mother Budhini (P.W. 2), are competent witnesses. The judgment of the court below is not based on any legal evidence and is wholly perverse and illegal and the same is liable to be set aside by this Court. 11. Learned A.P.P., on the other hand, submitted that Urmila (P .W. 1), sister of the deceased and mother Budhini (P.W. 2), are competent witnesses. They claimed to be present at the time of occurrence and immediately after the occurrence, mother came out and chased the accused person but the accused could not be caught hold. The sister also came out thereafter and saw the firearm injuries on the deceased. She further submitted that though there is no clear evidence regarding the source of light outside to prove proper identification in the dark night, yet P.W.2 in Paragraph-11 has clearly stated that the accused is a close relative and that his voice was also well known to the family. The doctor had also found firearm injuries on the dead body having wound of entrance on the left cheek lower part and the projectile had passed through left side of mandible region and the brain matter. The bullet was found lodged in the right parietal bone. The doctor also found blood and blood clots in the cranial cavity and lacerated wounds on the left cheek, left side of root of nose and on left upper orbital region left side. The doctor gave his opinion that death was due to head injury caused by firearm. Learned A.P.P. thus submitted that there is cogent evidence on record to support the injuries on the person of the deceased which caused his death. 12. Having heard learned counsel for the appellant and learned A.P.P., we scrutinized the materials on record. P.W. 1 Urmila Devi, is the sister of the deceased. She tried to support the prosecution version in Paragraph-1 of her deposition but in Paragraph-7 she stated that she came out of the house after about five minutes of the occurrence and her mother (P.W. 2) was first to reach there. In same paragraph she stated that there was dark outside and she was sleeping in the house. She stated that her mother witnessed the occurrence. In Paragraph-2 she stated that Manoj died because of firearm injuries on the next day on Thursday. She also stated in paragraph-5 that before coming to dock she was given instructions for deposition by Government Counsel. She stated that her mother witnessed the occurrence. In Paragraph-2 she stated that Manoj died because of firearm injuries on the next day on Thursday. She also stated in paragraph-5 that before coming to dock she was given instructions for deposition by Government Counsel. Budhini Devi (P.W.2), is the mother of the deceased. She contradicted the very basis of the prosecution in her deposition in Paragraph-1 by stating that in the morning she alongwith her daughter (P.W. 1) had gone to police and lodged the report. The said report lodged by her was not brought on record. In paragraphs-3 & 4 she contradicted P.W. 1 by saying that the occurrence took place on Friday. In Paragraph-6 she further stated that when Manoj went out of the house she was sleeping and she was inside the house. She came out after firing on Manoj. In Paragraph-8 she clearly stated that there was dark outside the house. She has also contradicted the version of P.W. 1 and has stated that her son died due to injuries instantaneously. In Paragraph 9 she has clearly stated that she remained with the dead body of Manoj whole night and did not go anywhere. P.W. 3 Shiv Lochan Sahu, who was produced as witness to the seizure list on the alleged seizure of blood stained earth, denied the seizure in his presence and stated that police had taken his L.T.1. on paper. P.W. 4 Saban Singh, another seizure list witness though has proved his signature on the seizure list which was Ext.-1 with objection, but in very first Paragraph of his deposition he stated that nothing was seized by the police in his presence. P.W. 5 Ratan Saraik, has proved his signature on the Inquest Report but in Paragraph-5 he has stated that he had put his signature in a plain paper. P.W. 6 Dr. Ram Sewak Sahu, who conducted post mortem on the dead body of the deceased found several injuries. He found firearm injuries having wound of entrance 3½ cm. X 2 cm. on left cheek lower part. He also found projectile passed through left side of mandible region, left zygomadic bone, sphenoid bone, brain, matter and broke the right parietal bone from where bullet was found, lodged and was recovered. He further found track of the wound is contused and lacerated. X 2 cm. on left cheek lower part. He also found projectile passed through left side of mandible region, left zygomadic bone, sphenoid bone, brain, matter and broke the right parietal bone from where bullet was found, lodged and was recovered. He further found track of the wound is contused and lacerated. He found blood clot in the cranial cavity besides that he found several lacerated wound one at soft tissue left cheek that was over the wound of entrance, left side of root of nose and on left upper orbital region left side. In his opinion he has found that all the injuries were ante mortem and lacerated wounds caused by hard blunt substance and rest by firearm such as pistol. He opined that death was due to head injury. 13. From appraisal of the said evidence, we find that though injuries on the dead body of the deceased found by the doctor including the firearm injury on the vital part of his person, but we fail to find any cogent and credible evidence on record to hold that the said injuries were caused by the appellant. From the evidences of P.W. 1 and P.W. 2 as discussed above, it is evident that neither of the said witnesses are eye witnesses and there is no cogent evidence to prove that accused appellant had given the pistol shot at the deceased Manoj on the said fateful night. Nobody had seen either firing the pistol at Manoj or fleeing away from the place as the night was dark and there was no source of light outside. This is not the prosecution version that P.W. 1 or P.W.2 identified the accused appellant even by voice. There is thus absolutely no evidence of identification as to who caused the said injury on the person of the deceased. The Investigating Officer has not come to support the prosecution case and we find substance in the submission of the learned counsel for the appellant that due to withholding of the evidence of Investigating Officer, the prosecution has failed to prove the place of occurrence and the arms used in the occurrence. The Inquest Report also cannot be proved. In view of the statement of P.W. 2 that she had also lodged F.I.R. in the next morning, the defence has been seriously prejudiced in absence of Investigating Officer. The Inquest Report also cannot be proved. In view of the statement of P.W. 2 that she had also lodged F.I.R. in the next morning, the defence has been seriously prejudiced in absence of Investigating Officer. It could not be proved as to which version regarding the first information is true and how the version of Shaili Mathew, the informant, has been used as a basis of prosecution. The informant who happened to be the wife of the deceased, has also kept herself away from the dock. She did not come to support the version made in the fardbeyan. 14. Learned trial court has placed heavy reliance on the evidence of P.W.1 and P.W. 2 for holding the accused appellant guilty of the offence but as discussed above we find no positive and admissible evidence on record in support of prosecution version that the accused appellant was author of the injuries which caused death of the deceased Manoj Kumar Sahu. In absence of the evidence much less the quality of evidence required to prove the charge against the appellant, we find no ground to support and uphold the impug'1ed judgment of the learned court below. 15. In the result, we allow this appeal and set aside the conviction and sentence of the appellant and the impugned judgment of the learned trial court passed in S.T. No. 674 of 1994. Consequently, the appellant is acquitted of the charges. The accused appellant, who is in custody, shall be set at liberty forthwith, if not wanted in any other case.