JUDGEMENT Navaniti Prasad Singh, J. 1. The sole Appellant stands convicted for an offence under Section 302 of Indian Penal Code and is sentenced to rigorous imprisonment for life by the Additional Session Judge VII, Rohtas at Sasaram by judgment dated 30th November, 1988 passed in Sessions Trial No 319/19 of 1984/88. 2. The prosecution case starts with the Fardbayan of Raghubir Ram, the village Chaukidar on basis whereof the first information report is instituted at about 10 pm at Nokha Police Station, District - Rohtas on 16.02.1984. The first information report is Exhibit-5. The Chaukidar is P W 12. He states that late in the evening of 16th of February, 1984, while he was at home, he heard a gun fire shot from some distance. He rushed and at some distance from the village found a dead body with extensive bleeding. He identified the dead body to be of Lalan Singh. There were large number of people assembled there and he asked them as to what had happened. No one disclosed anything. He went to the house of Lalan Singh and found all the family members mourning the death of Lalan Singh. He enquired as to who killed Lalan Singh but no one disclosed anything. He then comes to Nokha Police Station which is about 10 kilometres away from the village and his Fard bayan is recorded and registered as the first information report. The first information report is, thus, against unknown for the death of Lalan Singh by gun shot. Next morning, at about 6 am, that is the morning of 17.02.1984, inquest report is prepared, the reason of death is gun shot injury. 3. The body is sent for post mortem and post mortem is done at 11 am. The post mortem report is Exhibit-2. Let it be noted that the doctor, who performed post mortem, was not available for examination as he was reported dead. Post mortem report discloses that on the right side of the back, there was an entry wound measuring about half inch. On the left side of the lower abdomen, there was an exit wound measuring 2"x1-1/2". Several internal organs have been damaged on way between the entry and the exit. Post mortem report discloses that on the right side of the back, there was an entry wound measuring about half inch. On the left side of the lower abdomen, there was an exit wound measuring 2"x1-1/2". Several internal organs have been damaged on way between the entry and the exit. On 18th February, 1984, one Baban Singh (P W 10), the brother of the deceased gave a blanket and a pair of socks to the police which have been marked as Material Exhibit-1. In the deposition of Baban Singh, who has been examined as P W 10 and is not an eye witness, he has stated that this is the blanket and the socks of the assailant abandoned and recovered from a village temple in the morning of 17th of February, 1984. 4. Upon completion of investigation, chargesheet is submitted against the Appellant stating him to be the sole assailant. Upon charges being framed and Appellant pleading innocent, the case was taken up for trial. 5. It may be pertinent to note that the Appellant has been charged with murdering the deceased. There is no charge of shooting the deceased or use of firearm. Even in examination by Court under Section 313 Code of Criminal Procedure, there is no question put to the accused about use of firearm which is astonishing, if not fatal to prosecution. 6. In course of trial, prosecution examined 13 witnesses. Out of the 13 witnesses, P W 1 Ramayan Singh, P W 5 Jai Prakash Singh, P W 6 Bhaiya Ram Singh and P W 7 Ram Pravesh Singh are said to be eye witnesses. P W 12 Raghubir Ram is the Chaukidar who gave the first information report. P Ws 8, 9, 11 and 13 are formal witnesses. P Ws 3 and 4 are witnesses supporting the prosecution story but they are not eye witnesses and, as such, witnesses of circumstances leading to the death. As noted earlier, Baban Singh is P W 10 who is the brother of the deceased and who produced the blanket and socks allegedly belonging to the assailant, the Appellant. The three eye witnesses are consistent only to a very limited extent. They are consistent to the fact that Lalan Singh and his brother-in-law were coming whereas the Appellant and these three witnesses were going in the opposite direction. Ganesh Singh asked for khani (tobacco) from Lalan Singh. The three eye witnesses are consistent only to a very limited extent. They are consistent to the fact that Lalan Singh and his brother-in-law were coming whereas the Appellant and these three witnesses were going in the opposite direction. Ganesh Singh asked for khani (tobacco) from Lalan Singh. Then they are all inconsistent. One eye witness, that is P W 1, states that Lalan Singh gave tobacco to Ganesh Singh. Lalan Singh, thereafter, sat down to urinate. Ganesh Singh took out a rifle, which he was hiding in a blanket, and at point blank range, shot Lalan Singh. P W 5 Jai Prakash Singh narrates the incident differently. He states that Lalan Singh gave tobacco to Ganesh Singh, then moved three or four paces when Ganesh Singh turned and shot him. P W 6 Bhaiya Ram Singh states that Lalan Singh prepared the tobacco mixture and gave it to Ganesh Singh. Ganesh Singh having taken it turned around and shot Lalan Singh. The brother-in-law of Lalan Singh and these three witnesses then ran shouting that Ganesh Singh had shot dead Lalan Singh. One of these eye witnesses state that he immediately returned to the dead body. Then came the village Chaukidar (P W 12) whom he disclosed the incident. Later, police came on the spot and everyone disclosed the incident. What is surprising is when we have the village Chaukidar as a prosecution witness P W 12, he states that having come to the spot and seeing the dead body of Lalan Singh, he went straight to the Police Station. He did not know nor did anyone tell him as to how the crime was committed. If one compares this statement with the statement of the alleged eye witnesses and the Fard bayan, the prosecution story is a bundle of contradicting facts. Witness states that the facts were disclosed to the Chaukidar. The Chaukidar, in the earlier statement to the police which is the Fard bayan, states to the contrary. Further, if one refers to the deposition of the Chaukidar, it would appear that he does not say that he visited the house of Lalan Singh whereas, in his Fard bayan, he has clearly mentioned that he visited the house of Lalan Singh, found people mourning but none were able to disclose as to how the offence happened and who committed the offence. In our view, the first thing that stands established is that Lalan Singh was shot. The second is that immediately it was not known who shot. 7. From the depositions of the three eye witnesses, it is also clear that their statements under Section 161 of Code of Criminal Procedure were recorded by the police several days later. If we refer to the deposition of P W 10 Baban Singh, the brother of the deceased, he states that he discovered the blanket and the socks allegedly belonging to the Appellant in the morning immediately after the incident and handed it over to the Investigating Officer in the afternoon of 17.02.1984. This is completely inconsistent with the production list in respect of these articles which have been marked as Material Exhibit-1 which shows its recovery on 18th February, 1984 that is more than a day and a half after the incident. If we then refer to the deposition of the Chaukidar (P W 12), he again contradicts himself when he says before the Court that he had not heard the gun shot to show that he had only casually gone and discovered the dead body whereas in his Fard bayan, his specific case is that upon hearing of the gun shot at his house, he rushed out and reached the site. He again contradicts his earlier statement in the Fard-e-bayan where he had said that he found large number of people but none could disclose any particular about the incident, when he deposes before the Court stating that he had met no one at the place of occurrence. These are facts so far as credibility of eye witnesses are concerned. It is apparent and rightly submitted by Shri Manu Shankar Mishra, learned Counsel in support of the appeal that clearly it is an afterthought whereas no one had really seen the incident. He rightly submits that if one looks to the deposition of P W 7 Ram Pravesh Singh, he is the illusive brother-in-law who categorically gives details of the incident and further states that he rushed and informed the family members in the house of Lalan Singh but the Chaukidar clearly states in his Fard bayan itself that he asked from the people in the house when he found them mourning as to who had killed Lalan Singh, he got no response. 8. 8. Now we come to another aspect, as pointed by Shri Mishra for the Appellant. He submits that if we look at the depositions of the eye witnesses, we find that one states that Lalan Singh had sat down to urinate when Ganesh Singh took out his rifle and shot him at very close range. The other states that Lalan Singh walked away 4-5 steps and then he was shot at the back by the Appellant. Comparing this with the post mortem report, one must notice that the post mortem report makes no mention of charring at the point of entry. If Lalan Singh was shot at the back at point blank range, necessarily there must have been charring. That was absent. If we see the direction of the entry wound and the exit wound, it would be noticed that the bullet has travelled from the right side of back of shoulder to the left side of lower abdomen. This trajectory is impossible if Lalan Singh is shot from a distance of 4 or 5 steps while walking. Then again if one sees the measurement of wound of entry and wound of exit, they are both very small to justify finding of a close range firing with a rifle. No explanation has come forth from the prosecution for these material contradictions and discrepancies in the evidence. 9. Apart from this, as noted earlier, the charge, as framed against the Appellant, is singular of murdering the deceased. There is no charge of using firearm or shooting. No such question is put to the Appellant in his examination by Court under Section 313, Code of Criminal Procedure which is fatal as the circumstances and fact of shooting cannot, thus, be used against the Appellant at all. 10. Thus seen, the credibility of the eye witnesses and their statement with regard to the manner of occurrence being in serious doubt, the only conclusion can be that the prosecution has failed to prove its case beyond reasonable doubt. 11. In view of the aforesaid, the result can only be to allow the appeal and set aside the conviction of the Appellant. The Appellant is acquitted and is discharged of his bail bonds. 12. I agree.