ADITYA KUMAR TRIVEDI, J.:—Cr. Appeal No. 728 of 2008 has been filed on behalf of appellant-convict, Awadhesh Singh, Cr. Appeal No. 838 of 2008 has been filed on behalf of appellant-convict, Santosh Singh, Cr. Appeal No. 863 of 2008 has been filed on behalf appellant-convict, Manoj Kumar Singh and Cr. Appeal No. 1091 of 2008 has been filed on behalf of appellant-convict, Guddu Singh against the common judgment of conviction dated 1st July 2008 and sentence dated 2nd July 2008 passed by Sri Narayan Prasad Singh, Additional Sessions Judge, FTC-IV, Sheikhpura, Munger in Sessions Trial No. 256 of 2004/40 of 2008 convicting the appellant named above under Section 302 of the Indian Penal Code as well as 3/5 of the Explosive Substance Act and further directed each of them to undergo RI for life as well as appellant-convict, Monoj Kumar Singh, Santosh Kumar Singh and Guddu Singh independentally had been directed to undergo RI for life under Section 3/5 of the Explosive Substance Act and further directing the sentence to run concurrently. All these four appeals have been heard together and are being disposed of by a common judgment. 2. One of the deceased, Binay Kumar gave his fardbeyan while he was admitted at the Nursing Home of Dr.K. Purusottam at Sheikpura on 18.04.2001 at 7:00 P.M. (Exhibit-4) disclosing therein that on the same day at about 12 noon while he along with Manoj Kumar Singh S/O Naresh Singh, Rajeev Kumar S/O Dani Singh, Police Kumar S/O Shyamli Singh, Umesh Singh S/O Nikhedi Singh was playing cards near Kehuli tree, south to Shiv Mandir, all of a sudden, his co-villager, Awadhesh Singh S/O Kishundev Singh, Guddu Singh, Santosh Kumar, Rajendra Singh, Manoj Kumar Singh, Niranjan Singh came and on an order of Awadhesh Kumar, Guddu Singh, Santosh Kumar Singh, Manoj Kumar hurled bomb. Then, thereafter, they escaped and during said course they have also fired. He along with his other companions have sustained bomb injury. After hearing sound of explosion, his brother Bipin Singh and co-villager, Shambhu Singh, Dukhi Singh along with others came and have seen the accused fleeing therefrom. Subsequently, they were taken to Sheikhpura for treatment where Manoj Kumar died during course of treatment. He along with his other companions have sustained bomb injury. After hearing sound of explosion, his brother Bipin Singh and co-villager, Shambhu Singh, Dukhi Singh along with others came and have seen the accused fleeing therefrom. Subsequently, they were taken to Sheikhpura for treatment where Manoj Kumar died during course of treatment. The genesis of occurrence has been disclosed as one of the booths for Mukhia election has been identified at Middle School, Ekadha lying behind his house and to facilitate booth capturing by the accused persons, they have committed such offence. 3. As the investigation of this case was taken up in an unusual manner and its repercussion will be dealt with at the later part of the judgment save and except incorporating the fact that from the evidence of PW-11, Ramesh Kumar Sharma, it is evident that after coming to know about the occurrence on 8.4.2001 at 2:10 P.M. he rushed to village- Ekadha after entering station diary no.304 dated 18.04.2001 and as none was eager to record fardbeyan therefore, he proceeded with the investigation simultaneously informing the O/C of Sheikpura P.S. to record fardbeyan of one of the injured admitted at clinic of Dr.K. Purusottam at Sheikpura on the basis thereof Exhibit-4 was recorded by PW-12, Mithilesh Kumar Jaiswal. O/C of Sheikhpura P.S. which was later on transmitted to Ariari (Chewara) P.S. for registration and on the basis thereof Ariari P.S. Case No. 70/2001 was registered. 4. After completing investigation of Ariari (Chewara) P.S. Case No. 70/2001, final form was submitted showing the case as false. However, the learned A.C.J.M, Sheikhpura differing therefrom took cognizance vide order dated 12.07.2002 under Section 302 of the IPC along with other ancillary Sections and accordingly case was committed and subsequently, culminated in convicting the appellant-convict while acquitting two of them namely, Rajendra Singh and Niranjan Kumar. 5. The defence case as is evident from the mode of cross-examination as well as from the statement recorded under Section 313 of the Cr.P.C. is that appellant-convict are innocent and they have fallen prey of group rivalry, personal grudge as well as village politics. Further, it has been pleaded that the deceased had sustained injury on their own while they were preparing bomb at the Bathan of Naresh Singh, father of one of the deceased, Manoj Kumar Singh and to support the same two DWs have also been examined on this score. 6. Further, it has been pleaded that the deceased had sustained injury on their own while they were preparing bomb at the Bathan of Naresh Singh, father of one of the deceased, Manoj Kumar Singh and to support the same two DWs have also been examined on this score. 6. While assailing the judgment of conviction and sentence, it has been argued on behalf of appellant-convict that the judgment of conviction and sentence recorded by the learned lower court shows non application of judicious mind. Then submitted that the prosecution case suffers from improbability, illegality, development and in the aforesaid background, the whole prosecution is fit to be thrown out rightly. To support their plea first of all, it has been submitted that as per own admission of PW-11, he had conducted the investigation, recorded statement of witnesses, visited the place of occurrence before institution of the case which happens to be unknown to criminal jurisprudence, therefore, the evidence of PW-11 in consonance with the evidence of those witnesses who have been examined by the PW-11 before the institution of the FIR happens to be untenable in the eye of law as well as being inadmissible. Then coming to the sanctity of the FIR, it has been submitted that it cannot be accepted as an FIR because of the fact that before recording of the FIR, the investigation had already begun and so it happens to be hit by Section 162 of the Cr.P.C. 7. Alternatively, it has further been submitted that the same cannot be treated as solemn statement of deceased as it shrouds under doubt on account of non examination of Doctor as well as non examination of the FIR attesting witnesses. As such the statement on its face loses its sanctity under both counts whereunder neither it could be accepted as the first information report nor it could be as a dying declaration. Therefore, the ultimate result happens to be the instant case has got no leg to standby. 8. Now coming to the evidence of the witnesses, it has been submitted that PW-1, Naresh Singh, PW-2, Kanchan Devi, PW-8, Savitri Devi are not eyewitnesses to the occurrence. PW-3, Manoj Kumar and PW-4, Abhay Singh have supported the case of defence. Therefore, the ultimate result happens to be the instant case has got no leg to standby. 8. Now coming to the evidence of the witnesses, it has been submitted that PW-1, Naresh Singh, PW-2, Kanchan Devi, PW-8, Savitri Devi are not eyewitnesses to the occurrence. PW-3, Manoj Kumar and PW-4, Abhay Singh have supported the case of defence. The remaining witnesses happens to be PW-5, Rajiv Kumar, PW-6, Police Kumar and PW,7 Umesh Singh who have claimed themselves to be partner during playing card along with deceased and have also claimed to have sustained injury at the alleged place of occurrence. But their conduct, their depositions are sufficient to discredit their claim and for that drew attention towards relevant paragraphs of their deposition. PW-9 and 10 are doctors who have conducted postmortem over the person of deceased and they categorically stated that these injuries can be self inflicted. PW-11, 12 are the part I.O. and their objective finding also belie the prosecution version. PW-13 happens to be formal in nature who had simply recorded the fardbeyan of deceased Binay Kumar. Further submitted that the prosecution knowingly and intentionally withheld the material witnesses whose presence has been shown in the so alleged fardbeyan and some of them happens to be own family members of deceased and no explanation has been furnished on behalf of prosecution for their non examination. Then submitted that the death of both the deceased that means to say Manoj Kumar and Binay Kumar is not under dispute, the dispute is over the manner of occurrence as flashed by the prosecution which from the conduct of the prosecution witnesses is very much clear that deceased did not meet with their ultimate death as per prosecution version rather the probability of defence version was much found to be stronger, the circumstance visualizing therefrom negativates the whole prosecution case giving reliable alternative version that deceased along with PWs-5, 6 and 7 have sustained injury during course of manufacturing of bomb and during course thereof, there was explosion at the Bathan of Naresh Singh. It has further been submitted that the learned lower court totally ignored and overlooked this part of material visualizing from the record and sentenced the appellant-convict which is not at all justifiable. It has further been submitted that the learned lower court totally ignored and overlooked this part of material visualizing from the record and sentenced the appellant-convict which is not at all justifiable. Further submitted that the conviction of appellant-convict under Section 3/5 of the Explosive Substance Act was not at all maintainable for want of sanction as per Section 7 of the Act. So submitted that the appeal is fit to be allowed. 9. Learned counsel for the appellant also referred the judgments reported in 1988 PLJR 621, AIR 2000(1) SCC 555 , AIR 2000 SC 679 , AIR (2004) SCC 583. 10. On the other hand, the learned Additional P.P. assisted by the learned counsel for the informant strenuously refuted the submission advanced on behalf of the learned counsel for the appellants and submitted that the FIR cannot be treated as hit by Section 162 of the Cr.P.C. as Section 157 Cr.P.C. permits the police official to make preliminary investigation before recording of the FIR. Therefore, contents of the first part of the investigation happens to be in accordance with law though exceeded to some extent nevertheless that part played by the Investigating Authority will make the FIR inadmissible in the eyes of law. Also submitted that in worst case whatever statement of witness has been recorded during course of first part of investigation before recording of the FIR, that could be kept out of purview. The FIR was recorded at Sheikhpura as both the injured were admitted at Sheikhpura and from Sheikhpura, the FIR was sent to Ariari where FIR was registered. So there has not been delay in registering the FIR and in likewise manner there has not been delay in compliance of Section 157 of the Cr.P.C.. Learned APP fairly submitted that during the course of conduction of trial, certain deficiencies accrued which suggest that the learned Additional APP was not so diligent and in the aforesaid background the witnesses more particularly the FIR attesting witnesses along with others could not be examined on behalf of the prosecution. Then submitted that now the prosecution evidence has to be taken into consideration in the background of aforesaid deficiencies and for that submitted that PW-5,6 and 7, the victim-cum-eyewitness have consistently supported the case of the prosecution. Then submitted that now the prosecution evidence has to be taken into consideration in the background of aforesaid deficiencies and for that submitted that PW-5,6 and 7, the victim-cum-eyewitness have consistently supported the case of the prosecution. Not only this, it has also been submitted that on account of death of Binay Singh, the Fardbeyan given by him has turned into dying declaration. Neither defence has been able to controvert the sanctity of aforesaid dying declaration nor there happens to be any occasion to discredit the same. When the dying declaration is taken together with the testimony of PWs-5,6, and 7, it is manifest that these are consistent on each and every point more particularly over place of occurrence as well as identifying and encircling the assailant. Also submitted that defence of accused by way of examining DW as well as exhibiting the document is not at all going to axe upon the prosecution case in its entirety and in likewise manner, mere answering over questionnaire put by the defence before doctor regarding possibility of self inflicted injury is going to discredit the testimony when all happen to be consistent and corroborated. Then submitted that absence of sanction in accordance with Section 7 of Explosive Substance Act is not going to disapprove the prosecution case even nullifying the conviction and sentence under Explosive Substance Act. So submitted that the prosecution has succeeded in substantiating its case, consequent thereupon, the appeal is fit to be dismissed. 11. In getting the rival submission properly considered, first of all evidence has to be dealt with. 12. In order to support its case, the prosecution had examined altogether 13 PWs out of whom PW-1 is Naresh Singh, PW-2 is Kanchan Devi, PW-3 is Manoj Kumar, PW-4 is Abhay Singh, PW-5 is Rajeev Kumar, PW-6 is Police Kumar, PW-7 is Umesh Singh, PW-8 is Savitry Devi, PW-9 is Dr. Rajiv Ranjan Verma, PW-10 is Ashok Kumar Yadav, PW-11 is Manoj Kumar, PW-12 is Ramesh Kumar Sharma and PW-13 is Mithilesh Kumar Jaiswal. Side by side also exhibited Exhibit-1, Carbon copy of PM report, Exhibit-2 Copy of P.M report, Exhibit-3 seizure list, Exhibit-4 Fardbeyan and Exhibit-5 formal FIR. Defence has also examined altogether two DWs, DW-1, Anil Singh, DW-2, Karianand Singh as well as also exhibited signature of Kanchan Devi (PW-2) as Exhibit-A, A/1. 13. PW-9 happens to be Dr. Side by side also exhibited Exhibit-1, Carbon copy of PM report, Exhibit-2 Copy of P.M report, Exhibit-3 seizure list, Exhibit-4 Fardbeyan and Exhibit-5 formal FIR. Defence has also examined altogether two DWs, DW-1, Anil Singh, DW-2, Karianand Singh as well as also exhibited signature of Kanchan Devi (PW-2) as Exhibit-A, A/1. 13. PW-9 happens to be Dr. Rajiv Ranjan Verma who had conducted postmortem over the dead body of deceased, Manoj Kumar on 19.04.2001 and found the following:- (1) Explosive tattoo marks present at most places all over the body with lacerated wounds at many places including chest and scalp of ½-1” x 1/3”x1/3”. (2) On dissection both lungs were found lacerated, plural cavity filled with fluid and blood clots. Death due to shock and haemorrhage as a result of above injuries caused by some explosive substance. Time elapsed since death about 24 hours. 14. During cross-examination at paragraph-7 had said that I have not mentioned that any foreign body was found in the dead body at the time of postmortem report. At para-11 had said that injuries found by him are possible by an explosion while manufacturing bomb. 15. PW-10, another doctor who had conducted postmortem over the dead body of another deceased, Binay Kumar Singh. Following ante-mortem injuries were found:- (a) ½” diameter explosive burn injury was found on the lateral side of left side of chest between left 7th and 8th ribs up to muscles (b) explosive burn injuries were found over the both lower extremities on its medial and frontal side. (c) one explosive burn injury was found over the right upper extremities. (d) explosive burn injuries were found on the right side of chest extending up to sternum. (e) multiple explosive burn injuries were found on the head, face, neck and upper part of right side of chest. After opening of body following internal findings were found:- Chest cavity was full of fluid. Trachea and lungs were found highly congested. No any projectile was found. The aforesaid ante-mortem injuries were sufficient in ordinary course of nature to cause death and were caused by explosives. The death was caused due to asphyxia and shock due to explosive injury and its complications. Time since death within 12 to 24 hour. At paragraph-7 of his cross-examination has admitted that injuries stated above are possible in course of explosion during preparation of bomb. The death was caused due to asphyxia and shock due to explosive injury and its complications. Time since death within 12 to 24 hour. At paragraph-7 of his cross-examination has admitted that injuries stated above are possible in course of explosion during preparation of bomb. All the injuries were in the front side of the body of the deceased. 16. So from the aforesaid finding of the respective doctors, it is crystal clear that both the deceased died on account of explosive substance having it exploded. Moreover, the appellants also did not challenge the factum of death by means of explosive substance. 17. Now, the other aspect happens to be relating to complicity of appellants-convict as an assailant. 18. Presence of appellant-convict is right from the FIR of Binay Kumar who subsequently died. As per narration of the FIR, while he along with Manoj Kumar, Rajeev Kumar, Police Kumar, Umesh Singh were playing cards, all of a sudden, Awadhesh Singh, Guddu Singh, Santosh Singh, Rajendra Singh, Manoj Kumar and Niranjan Singh came and on an order of Awadhesh Singh, Guddu Singh, Santosh Singh and Manoj Singh hurled bomb on account of which they all sustained injury. 19. Now coming to status of witness, first of all, we would like to begin with evidence of the witnesses who as per FIR, were present at the spot and were engaged in playing cards. 20. PW-5 happens to be one of the injured. He had deposed that on 18.4.2001 at about 12 noon he along with Police Kumar, Binay Kumar, Manoj Kumar and Umesh Singh were playing cards beneath Kehuli plant near Sheo Mandir. Awadhesh Singh, Rajendra Singh, Manoj Kumar, Niranjan Singh, Santosh Kumar, Guddu Kumar came from northern side and on an order of Awadhesh Singh, Guddu Singh and Santosh Singh hurled bomb upon them as a result of which Manoj Singh and Binay Singh sustained severe injuries while he along with Police Singh and Umesh Singh sustained superficial injuries. He has sustained injury over his left leg. Others fired and then they escaped from there. Injured were taken to Sheikpura. Manoj died there while Binay Singh died thereafter. During cross-examination at para-2 accepted that they were sitting over earth. Cards were thrown over towel. It was of white colour having black border. Two persons were sitting north faced while three were south faced. They were playing since 11 0’Clock. Injured were taken to Sheikpura. Manoj died there while Binay Singh died thereafter. During cross-examination at para-2 accepted that they were sitting over earth. Cards were thrown over towel. It was of white colour having black border. Two persons were sitting north faced while three were south faced. They were playing since 11 0’Clock. At para-6 had said that he had got no animosity with accused persons. In para-7 had said that the bombs were hurled over the injured. First bomb fell over testicle of Binay Singh while second and third bombs fell down over the earth in between Manoj and Binay. Because of the fact that all the three bombs fell simultaneously therefore, he could not get an opportunity to escape. At para-8 had said that lungi and ganji which Manoj worn had burnt at front side. Blood had fallen over the earth. At para-9 had said that on account of explosion of bombs, towel and cards were torn. At para-12 had said that accused persons came towards north side, bomb was hurled towards northern side. No ditch was formed on account of explosion. They have not come raising alarm. Awadhesh Singh had ordered from the distance of two to four hands away followed with hurling of bomb. At para-13 had said that he along with Police Singh and Umesh Singh had not gone to Sheikhpura hospital for their treatment as they had sustained superficial injury. At para-14 had said that there was no dense fog formed on account of explosion. Accused persons escaped soon thereafter before arrival of villagers. Then at para-16 and 17 have said that they are associated with Shambhu Singh while accused persons were supporters of Awadhesh Singh who were Mukhia candidate. Then had denied the suggestion that the deceased had sustained injury while manufacturing bomb. At para-30 he had admitted to record his statement before the police one month after the occurrence. At para-34 have said that police had seized towel having in burnt condition. 21. PW-6 (renumbered as PW-5), Police Kumar. Then had denied the suggestion that the deceased had sustained injury while manufacturing bomb. At para-30 he had admitted to record his statement before the police one month after the occurrence. At para-34 have said that police had seized towel having in burnt condition. 21. PW-6 (renumbered as PW-5), Police Kumar. He had deposed that the occurrence is of dated 18.04.2011 at about 12:00 noon and at that very time, he was playing cards beneath Kehuli plant along with Binay Singh, Manoj Singh, Rajendra Singh, Umesh Singh since 11:00 A.M. At that very moment, Awadhesh Singh, Rajendra Singh, Manoj Singh, Niranjan Singh, Santosh Kumar, Guddu Singh came and on an order of Awadhesh, Manoj and Guddu hurled bomb over body of injured and then escaped from there after making fire. Manoj Singh and Binay Singh sustained splinter injury. He along with Rajeev and Umesh also sustained minor injury. He had shown the mark of wound. Manoj Singh and Binay Singh were lifted to hospital where Manoj died. Binay Singh was taken to Patna through Begusarai where during course of treatment he died. The motive for occurrence has been shown as they happened to be supporters of Shambhu Singh who was contesting against the accused, Awadhesh Singh in the Mukhiya election. The aforesaid election was going to be held on 19.04.2001. Then had identified the accused. During cross-examination at para-3 had said that they occasionally played cards beneath Kehuli plant. Then had said that house of Shyam Singh lies south to that place. None has got their house at northern side. House of Naresh Singh lies east at the distance of 100-150 feet. In western side there happens to be open space. At para-4 had said that all were playing cards. Cards were brought by Rajiv Kumar. He is not remembering what was scribed at the back of cards. All were sitting over earth. Then had said that all the fives had got their cards. Umesh Singh was seeing the game while remaining four were playing. He is not remembering who was winning at that time. Then had said that three persons were sitting from northern side having their face towards southern side and two persons were sitting from southern side having northern face. During the aforesaid period none had come. They have seen the accused when they were at the distance of 1-2 hands away. He is not remembering who was winning at that time. Then had said that three persons were sitting from northern side having their face towards southern side and two persons were sitting from southern side having northern face. During the aforesaid period none had come. They have seen the accused when they were at the distance of 1-2 hands away. At para-5 had said that he could not escape at the time of hurling bomb because no opportunity was available. All the three bombs were hurled in same sequence. Smoke came out but was not so densed. There was sound. The remittance of bomb was present there. At para-6 had said that after 15 to 20 plots, the houses of Suro Singh and Pramod Singh lie . Houses of Mantu Singh and Naresh Singh lie 100 to 150 feet away at southern side. Middle school lies 200 to 250 feet away at western side. House of Shyam Singh and Bhanu Singh lies 150 feet away. At para-8 had said that the bombs were hurled from northern side. None of the bomb fell on earth rather it fell on the body of Manoj and Binay. Injury was caused. Thigh and whole body of Manoj was burnt and in likewise manner, Binay also sustained grievous injuries. Blood fell down over the earth but he cannot say exact area. He had not seen the black spot or ditch at the place of occurrence. Then had elaborately dealt with the injury sustained by the injured. At para-11, had said that he had met with police 20-25 days after the occurrence. Police had not gone in between. At para-12 had said that at the time of occurrence he was sitting at northern side facing south along with Rajiv and Umesh. Then he said that whether the cards were burnt or not, he cannot say. In para-14, there happens to be contradiction. At para-18 had said that non had gone to the P.S.. Chebara, police had come to his village on the same day at about 4:00 p.m.. He had not disclosed to police regarding sustaining the injury by bomb. He had seen police officials. Then had denied the suggestion that during the course of manufacturing of bomb it exploded and caused injury to injured. 22. PW-7 happens to be Umesh Singh. Chebara, police had come to his village on the same day at about 4:00 p.m.. He had not disclosed to police regarding sustaining the injury by bomb. He had seen police officials. Then had denied the suggestion that during the course of manufacturing of bomb it exploded and caused injury to injured. 22. PW-7 happens to be Umesh Singh. He had deposed that the occurrence is of about six years ago, it was 12 Noon. He along with Police, Rajiv, Manoj, and Binay Singh were playing cards beneath Kehuli plant near temple. At that very time, Manoj Singh, Rajendra Singh, Niranjan Singh, Awadhesh Singh, Guddu Singh, Santosh came from northern side. On an order of Awadhesh Singh, Manoj Singh, Guddu Singh and Santosh Singh hurled bomb on account of which Binay Singh and Manoj Singh sustained injuries. Police Singh had also sustained minor injuries. Manoj Singh and Binay Singh were taken to hospital. Manoj Singh died at Sheikhpura while Binay Singh died at Patna. He also sustained injury. Then had said that he identified the accused. In cross-examination at para-2 had said that he was just watching the game sitting by the side of Police Singh. Rajiv Singh was sitting at the other side. He cannot say what kind of play was going on. Towel was put over the earth. It was red in colour. At para-4 had stated that Rajiv Singh and Police Singh were sitting at the northern side facing south while Manoj Singh and Binay Singh were sitting southern side facing north. 23. At para-5 had said that the three bombs were exploded. The same were exploded in continuity. It fell down over two persons namely, Binay and Manoj. Two bombs were hurled at Binay Singh and one at Manoj Singh. There was smoke after explosion. He cannot say that splinters were scattered or not. He stood up after explosion but did not escape. At para-6 said that blood had oozen out. At para-10 had said that he had not gone along with injured to hospital. Then at para-11 had said that police had come to village one day after occurrence. Police had not inquired from him though he was present in the village. Then had said that after two days, he came to know regarding death of Manoj and Binay. At para-10 had said that he had not gone along with injured to hospital. Then at para-11 had said that police had come to village one day after occurrence. Police had not inquired from him though he was present in the village. Then had said that after two days, he came to know regarding death of Manoj and Binay. At para-14 had said that Manoj and Binay sustained grievous injuries while he along with Rajiv and Police had sustained superficial injuries. Then had denied the suggestion that the aforesaid bomb exploded while it was being manufactured by them. At para-17 had said that he remained at place of occurrence for an hour. Also said that no remittance of bomb was present at the place of occurrence. At para-21 had said that he had seen the accused at the distance of 5 to 6 hands. They all have come jointly. At that very time they were southern side. He cannot say who was extremely eastern side and who was extremely western side. They had hurled bomb from a distance of 2 to 3 hands. Further said that he cannot say the area covered by splinters of bomb. At para-22 had said that he had seen the assailant fleeing away. They have gone towards northern side. In para-23 had said that at that very time game was going on. 24. Now, the evidence of second set of witness is taken who admittedly are not eyewitness to occurrence. However, they are own family members of one of the deceased, Manoj Singh. 25. PW-1 happens to be father of Manoj namely, Naresh Singh. He had deposed to the extent that the occurrence is about three years and four months ago. It was 12 Noon and at that very time he was at his house. After hearing sound of bomb, he came out from his house and rushed at the place of occurrence. Where he found five persons lying in injured condition. Those were, Manoj, Binay, Police, Rajiv and Umesh. 26. Rajendra Singh, Niranjan Singh, Santosh Singh, Manoj Singh, Awadhesh and Guddu were present out of whom, Rajendra Singh, Niranjan Singh were armed with pistol. After seeing him, the accused persons began to flee. Then had said that Binay had disclosed that Guddu, Manoj and Santosh had hurled bomb. Thereafter, injured were taken to hospital where Manoj died during course of treatment. After seeing him, the accused persons began to flee. Then had said that Binay had disclosed that Guddu, Manoj and Santosh had hurled bomb. Thereafter, injured were taken to hospital where Manoj died during course of treatment. Binay was taken to Begusarai and from there to Patna where he died. The motive for occurrence has been shown to be in the background of Mukhiya election wherein one of the accused, Awadhesh Singh happens to be the candidate. During the cross-examination at para-4 had said that he had made statement before the police. Then had denied that police had submitted final form. At para-5 had said that Binay Singh and Manoj Singh were the supporters of Shambhu Singh, another candidate of Mukhiya. Guddu Singh happens to be son of Awadhesh Singh and Santosh happens to be nephew. Niranjan and Rajendra are supporters of Awadhesh Singh at para-6 had said that Binay and Manoj both had died on account of bomb injury. Place of occurrence lies 20-22 yards west from his house. The place of occurrence is “Parti Kadim”. Kehili plant was there. At para-7 had said that deceased along with others were playing cards near the aforesaid plant. Towel was spread there. Then had said that bomb exploded over towel. Police had taken away towel. At para-8 had said that there was spot of bomb explosion beneath kehuli plant. Cards were not burnt. He had not seen the incident of explosion. He came over hearing sound of explosion. There were three sounds. At that time, he was inside his house. At para-9 had said that when the police had come, he was at his village. He had not put his signature over seizure list. He had not seen what articles were seized by the police. He had seen the accused persons fleeing away from the place of occurrence. Then had denied the suggestion that the explosion was effected while the deceased were preparing bomb. At para-11 had said that none hand come before him at the place of occurrence. Others had come after his arrival. Then had said in para-12 that only his son became unconscious after sustaining bomb injury. 27. PW-2 happens to Kanchan Devi, wife of deceased, Manoj. She had deposed that the occurrence is about three years and four months ago. It was 11.00-12.00 noon. At that very time she was at her house. Others had come after his arrival. Then had said in para-12 that only his son became unconscious after sustaining bomb injury. 27. PW-2 happens to Kanchan Devi, wife of deceased, Manoj. She had deposed that the occurrence is about three years and four months ago. It was 11.00-12.00 noon. At that very time she was at her house. Her house lies 3 to 4 houses away from the place of occurrence. Binay, Police, Umesh, Rajiv and her husband had gone to play cards. They were playing cards beneath Kehuli plant. She heard the sound of explosion coming out from the place where they had gone to play cards. She rushed. She had seen 6 to 7 persons fleeing from there. Out of whom she identified Guddu Singh, Awadhesh Singh and Rajendra Singh. She does not know names of others. She had seen Police Singh, Rajiv Singh, Umesh Singh, Binay Singh and Monoj Singh in injured condition out of whom Manoj died at the hospital. Binay Singh died at Patna. During cross-examination at para-4, she had identified her signature over Vakalatnama as well as over petition and further disclosed that she had put her signature over the same when she was told by her father at the instance of accused that she will get money. At para-6 had said that she had gone to place of occurrence after hearing sound of explosion. She had not seen the occurrence. Then had said that she cannot say name of accused who is present in dock. Then had said that she came to know about accused, Guddu, Santosh, Manoj and Rajendra so disclosed by her mother-in-law, she further disclosed that the S.P. and the I.O. had not inquired from her. At para-7 had said that whatever she had deposed, on account of fear of her father-in-law. At para-8 had said that she had seen no body engaged in playing cards. When she reached at the place of occurrence, she had seen 100 persons assemble there. 28. PW-7 happens to be Savitrai Devi, mother of Manoj Singh. She had deposed that the occurrence is of about six years ago, it was 12.00-1.00 noon. At that very time she was at her house. Her son had gone to play cards. She heard sound of explosion. She came over roof and seen smoke. Also seen Awadhesh, Guddu, Santosh, Rajendra, Niranjan, Manoj running away. She had deposed that the occurrence is of about six years ago, it was 12.00-1.00 noon. At that very time she was at her house. Her son had gone to play cards. She heard sound of explosion. She came over roof and seen smoke. Also seen Awadhesh, Guddu, Santosh, Rajendra, Niranjan, Manoj running away. Her son Manoj who was injured who died at Sheikpura hospital while another injured Binay died at Patna. Also identified the accused. At para-3 had said that she could not accompanied her son as she became senseless seeing her injured son. At para-4 had said that Daroga had come to her place two or three hours after occurrence. She had met with Darogaji. At that very time, she had not stated anything before him. Darogaji had not seized reminance of bomb from her Darwaja. Her Dalan was not blackened. Then had denied the suggestion that her son had sustained bomb injury while manufacturing bomb. At para- 8 had said she had seen smoke near kehuli plant. She had also seen the accused fleeing away. Then had said that she had gone over roof after five minutes and from there she had seen. Then at para-10 had said that there was no dispute between her son and accused persons. At para-13 had said that her son was regularly vising to that place for playing cards. She had seen the face and back of accused. At para-14 had said that that her son was canvassing on behalf of Shambhu Singh. At para-16 had said that when she reached at place of occurrence, she found her son in injured condition. Blood was oozing out. Then she came to know after 2:00 P.M. that her son had died. 29. Now, there happens to be third set of witnesses who had exclusively supported the case of defence and those are PW-3 Manoj Singh. He was tendered by the prosecution. During cross-examination he had admitted that he had made statement before the police and then there appears to be the statement which he had stated before the police supporting the case of defence that the occurrence took place at the house of Naresh Singh where he reached after hearing sound of explosion and found smoke coming out. He had seen Badi Singh and Umesh Singh coming out from the house and further found Manoj and Binay in injured condition. He had seen Badi Singh and Umesh Singh coming out from the house and further found Manoj and Binay in injured condition. Also found Police, Rajiv in injured condition who were running away towards river. The aforesaid injury was sustained by the injure while preparing bomb. 30. PW-4, happens to be Ajay Singh. Surprisingly, he has not been declared as hostile by the prosecution although in his examination in chief alone he had given complete goby to the prosecution version stating that on the alleged date and time of occurrence he, after hearing bomb explosion, had gone towards house of Naresh Singh from whose house smoke was coming out. Manoj Kumar and Binay Kumar have sustained injury who were lifted to hospital and subsequently died. He could not say who hurled bomb. The bomb was exploded on its own. During cross-examination had said that he has come to depose after being noticed by the Court. 31. PW-10, happens to be Manoj Kumar, part I.O. who was entrusted with the investigation on 12.02.2002. He had deposed that after receiving case dairy, he had gone through the case diary. Obtained P.M. report of Manoj and Binay. Recorded statement of Manoj Kumar, Karyanand, Abhay Singh, Rajiv Kumar, Police Kumar, Kanchan Devi, Savitri Devi. Also visited place of occurrence which is lying 150 metre away from the population near kehuli plant standing south to Shiv temple. He inspected place of occurrence and during said course he found the Kehuli plant’s thin shadow. The land beneath Kehuli tree was not found plain. Cowdung was stored there as well as animals were also found tied with the tree. Then had stated the inadmissible part. After completing his investigation, he had submitted final form showing the case untrue. Para-2 happens to be contradiction. At para-3 had said that he had seen the seized article which were playing cards, towel, splinters and further found absence of blood stain and accordingly, he had incorporated the same under para-92 of the case diary. In para-102 of the case diary, he had mentioned that he after making query from Sheikpura hospital was informed that none of the injured was examined there and therefore no injury report was issued. At para-5 had said that he had not found blood at the place of occurrence. In para-102 of the case diary, he had mentioned that he after making query from Sheikpura hospital was informed that none of the injured was examined there and therefore no injury report was issued. At para-5 had said that he had not found blood at the place of occurrence. At para-6 had said that he had mentioned in para-78 of the case diary that spy had informed that smoke was coming from the house of Naresh Singh and further also had seen the injured. Inmates of the house were weeping. 32. PW-11, happens to be Ramesh Kumar Sharma, the first I.O.. In chief had said that on 18.04.2001, he was O/C of Chewara P.S.. On that day at about 2:10 P.M., he had received information regarding explosion of bomb at village, Ekarha. He after mentioning it in station diary as station diary entry no. 304 of 18.04.2001, proceeded along with Chokidar, Mahendra Paswan. Reached at the village and found complete silence. None had come before the police. Had seen few women weeping. He enquired from one Savitri Devi who disclosed that her son has been murdered by hurling bomb pointing out towards Sheo Temple. She became unconscious. He has mentioned the statement of Anil Singh in para-4 of the case diary and as per his pointing out, he had visited the place of occurrence which lies beneath Kehuli plant near Sheo Mandir. He has found old sign of tying of animals hither and thither. He also found sign of sitting over the earth. One towel of white colour and black border was found along with a few playing cards. Few packets, sutli, blood spots were found scattered which were seized and seizure list was prepared in presence of Anil Singh and Pappu Singh. Then had disclosed the fact incorporated in para-9 that on account of election no other police officials were present at the P.S., therefore, he had requested the Sheikhpura Police to record the statement of injured. He also recorded statement of Umesh Kumar, Bipin Singh. Sheikpura Police had sent fardbeyan of Binay Kumar. Then had exhibited other documents. He had handed over investigation on 28.08.2001 to Kalim Ansari on account of transfer. In para-2 of his cross-examination he had admitted that he had conducted investigation and recorded case diary up to para-15 without recording the first information report. Sheikpura Police had sent fardbeyan of Binay Kumar. Then had exhibited other documents. He had handed over investigation on 28.08.2001 to Kalim Ansari on account of transfer. In para-2 of his cross-examination he had admitted that he had conducted investigation and recorded case diary up to para-15 without recording the first information report. Also submitted that Bipin Kumar Singh whose statement was recorded under para-13 of the case diary had later on given fardbeyan at Pirbahore P.S. which he received. In para-3 had disclosed that the gamchha and playing cards which were seized by him were not burnt. He had not found any sign of bomb explosion at the place of occurrence. At para-4 had said that, he had not issued injury report as the injured were already admitted to Sheikhpura. In para-6 had said that the case was instituted as Ariari P.S. Case No. 70/2001 and it was registered on 19.04.2001. Then at para-7 had said that as witnesses were not ready to put signature over the fardbeyan, therefore, no fardbeyan was recorded. Then had said that he had not seized the blood stained earth. 33. PW-12 happens to be Mithlesh Kumar Jaiswal, the person who was posted at Sheikhpura P.S. as S.I. on 18.04.2001. He had recorded fardbeyan of Binay Kumar son of Prasidha Narayan Singh of village, Ekarha who was admitted to the clinic of Dr. Purushottam in injured condition. The aforesaid fardbeyan was read over to him in presence of witnesses Bipin Singh and Shambhu Kumar who had put his LTI as well as the attesting witnesses also put their signature and exhibited the same. In para-3 of his cross-examination had said that no requisition was sent by Dr. K. Purushottam. Then had said that he was not knowing the injured since before. He had denied that no fardbeyan was given by injured Binay Kumar. In para-8 had said that he had not taken any certificate from the doctor regarding physical condition of the injured. 34. While assailing the judgment of conviction and sentence, learned counsel for the appellants submitted that from the nature of evidence adduced on behalf of prosecution, it is evident that three witnesses who claimed themselves to be injured during the course of occurrence, PWs 5, 6, 7 on account of inconsistencies visible in their deposition cannot be accepted as a witness of occurrence. The remaining witnesses, as admitted, are not eyewitnesses to occurrence and the most fatal part is the statement of PW-3 and PW-4, who have had narrated the different mode of occurrence whereunder they found the explosion at the house of Naresh Singh, PW-1 itself. They have also seen the injured at their place. With regard to remaining witnesses, PW-1,2 and 8, it has been submitted that they are not eyewitnesses to occurrence nay they could be witnesses of any part of incident. PW-2 had herself stated that whatever was deposed that was out of fear of her father-in-law. 35. Now ringing the bell on technical points submitted that it is a peculiar case wherein the whole investigation followed with trial has become illegal as well as in contravention of the law. To support the same drew attention towards the statement of PW-11, the first I.O. who had accepted that uptil recording of para-15 of the case diary, no case was instituted. From para-6 of his cross-examination it is evident that the FIR was registered on 19.04.2001, so either the investigation uptil para-15 happens to be illegal as it commenced without registration of a case in an alternative so-called FIR of Binay Singh recorded by PW-12 cannot be treated as fardbeyan because it is hit by Section 162 of the Cr.P.C. on account of ensuing of investigation before registration of the case. 36. In the aforesaid background when other parts of the prosecution case is taken together, none of the family members of one of the deceased, Binay Singh has come forward to depose at the other end. FIR attesting witnesses, Bipin Singh and Shambhu Kumar had come forward to support the case of the prosecution. So, it has been submitted that on account of persisting deficiencies and contradictions as well as on account of legal flaw shadowing the whole prosecution, there happens to be no cogent, reliable material on the record to concur with the finding arrived at by the learned lower court as such the judgment of conviction and sentence recorded by learned lower court is fit to be set aside. 37. 37. On the other hand, learned counsel for the State assisted by learned counsel for the informant submitted that fallacious argument has been advanced on behalf of appellant ignoring the settled principle of law which leads no other inference that to accept the testimony of injured witnesses who have sustained injury during the course of occurrence. Then submitted that apart from evidence of PW-3 and 4, there happens to be definite suggestion on the part of the accused that PW-5,6 and 7 have sustained injury along with deceased Manoj and Binay during the course of same incident which according to the defence, had occurred in the house of PW-1, Naresh Singh. So, sustaining of injury in the same occurrence by PWs-5, 6 and 7 along with deceased is admitted one. Now, the only question rests whether they have sustained injury beneath Kehuli tree near Sheo Temple and from the evidence of PWs 5,6 and 7, it is evident that they have categorically and firmly stood the test of cross-examination to identify the manner of occurrence as well as place of occurrence. Superficial contradictions are immaterial and irrelevant. Also happens to be the legal position, “falsus in uno falsus in omnibus” is not applicable and therefore, that happens to be reason behind that court has been entrusted with a burden to remove the grain from the chaff that means to pick up the true version from the evidence whatever been placed by the prosecution and if those parts are at all consistent pointing out complicity of accused during commission of crime, the accused is liable to be convicted. Taking into account the aforesaid settled principle, when the evidence is gone through, it is evident that they all are pointing out complicity of accused to be responsible for causing death of Manoj and Binay. 38. Coming to other part, it has further been submitted that Section 157 prescribes a preliminary investigation before registration of the case and so the aforesaid preliminary investigation has been found to be in accordance with law. Then submitted that it was unfortunate for the prosecution that on account of election no other police official than PW-11 was available at the Chavera Police Station otherwise the fardbeyan could have been recorded by the another Chavera Police official at Sheikhpura. Then submitted that it was unfortunate for the prosecution that on account of election no other police official than PW-11 was available at the Chavera Police Station otherwise the fardbeyan could have been recorded by the another Chavera Police official at Sheikhpura. Also submitted that from the evidence of PW-12, it is evident that the same was recorded on 18.04.2001 itself and it was transmitted on the same date, however, its arrival at subsequent day is not going to discredit its authenticity nor it can be treated to be barred under Section 162 of the Cr.P.C. Apart from this, it has also been submitted that maker of the document died subsequently on account of injury which he had sustained and so the aforesaid document very well be treated as a dying declaration and happens to be admissible in accordance with Section 32 of the Evidence Act. So submitted that the prosecution has succeeded in substantiating its case, consequent thereupon the appeal is fit to be dismissed. 39. Admitted position whatever comes out from the lower court record is that the investigation at first count was taken up before registration of the first information report and that finds corroborated from the evidence of PW-12. The so alleged first information report which happens to be of deceased, Binay Kumar recorded by PW-13 (Ext-4) was recorded at Sheikhpura on 18.04.2001 at 7:00 P.M. and its registration at concerned police station was on 19.04.2001. From the evidence of PW-12, it is evident that whatever investigation was conducted by him, that all happen to be on 18.04.2001. Therefore, the status of Ext-4, Fardbeyan cannot be recognized as fardbeyan on account of being hit by Section 162 of the Cr.P.C. 40. So far status of first part of investigation is concerned, that too cannot be recognized under the eye of law because of the fact that the investigation commenced without having recording of the FIR in accordance with Section 154 of the Cr.P.C. Conduction of investigation is only permissible after registration of the FIR. From the evidence of PW-12, it is evident that none was ready to give fardbeyan. That is not appealing as apart from examining mother of one of the deceased, other witnesses were also examined by him and so instead of recording the statement, he should have recorded it in a form of fardbeyan. From the evidence of PW-12, it is evident that none was ready to give fardbeyan. That is not appealing as apart from examining mother of one of the deceased, other witnesses were also examined by him and so instead of recording the statement, he should have recorded it in a form of fardbeyan. The action of PW-12 also became suspicious as when he had seen that none is coming forward, he should have recorded his own fardbeyan because of the fact that he had gone at the spot and gathered specific information with regard to commission of cognizable offence. Not only this, there happens to be reference of station diary entry no. 304 dated 18.04.2001 in his deposition which could have very well be treated as an FIR. 41. Be that as it may, the aforesaid station diary entry no. 304 dated 18.04.2001 has not been brought on record on behalf of the prosecution. 42. The evidence of PW-11, Manoj Kumar another I.O. is of no significance on this score because of the fact that he had taken investigation on 12.2.2002 that means to say after lapse of ten months. The prosecution also failed to place whether investigation continued or was halted during the intervening period. 43. Now the status of Ext-4 though suffering from some sort of legal deficiencies to be recognized as a fardbeyan could be treated as a dying declaration. It is settled principle of law that dying declaration even uncorroborated could be the basis of conviction subject to its authenticity and reliability. Binay Kumar admittedly had died at PMCH. Binay Kumar had not put his signature over the dying declaration rather his LTI was taken and that finds explained in the statement itself. The aforesaid statement was recorded by PW-13 as per information given by PW-12. Bipin Singh and Shambhu Singh stood as attesting witnesses thereupon who have not turned up before the court to support the aforesaid statement. Shambhu Singh is the same person who was one of the contestants of Mukhiya against co-accused, Awadhesh Singh. Neither the evidence of PW-13 disclosed with regard to mental condition of the deceased, Binay Kumar nor the Doctor has endorsed any certificate with regard to mental condition of the deceased, Binay Kumar. Dr. K. Purushottam had not issued O.D. slip nor he has been examined on behalf of the prosecution. Neither the evidence of PW-13 disclosed with regard to mental condition of the deceased, Binay Kumar nor the Doctor has endorsed any certificate with regard to mental condition of the deceased, Binay Kumar. Dr. K. Purushottam had not issued O.D. slip nor he has been examined on behalf of the prosecution. The peculiar fact as is evident is none of the prosecution witnesses save and except PW-13 have deposed that they have had carried the deceased to the clinic of Dr. K. Purushottam at Sheikhpura where the deceased had given his statement. Therefore, in the background of aforesaid deficiencies persisting on the record it appears unsafe to accept and recognize the veracity of the statement of deceased, Binay Kumar, Ext-4. 44. Now coming to the evidence of witnesses, admittedly save and except PW-5, Rajeev Kumar, PW-6, Police Kumar, PW-7 Umesh Singh none are eyewitnesses to the occurrence. It is also admitted fact that they had sustained bomb injury. So, as the defence has suggested and which the prosecution witnesses examined as PWs-3 and 4 themselves supported with regard to explosion of bomb at the house of PW-1, Naresh Singh wherein they have sustained injury including both the deceased, the probability has to be traced out from their evidence to see whether they have sustained injury in manner as stated. After having parallel scrutiny of evidence of all the three witnesses, it is evident that they have withdrawn themselves to come forward before the police although were known to the fact that police has come to village and the same are visible from the evidence of PWs-5, 6 and 7. There also happens to be inconsistency amongst their evidence so far their presence at the P.O. is concerned and which had already been discussed. 45. Thus, on the basis of the evidence and the materials placed by the prosecution and after having its minute observation, it is evident that the case of the prosecution apart from suffering from legal deformity is also suffering from mist of doubt. Once a doubt is created over manner and genesis of occurrence then in that event, the benefit has to be leaned in favour of accused. As such, the conviction and sentence recorded by the learned lower court against appellants-convict is set aside. The appeals are allowed. Once a doubt is created over manner and genesis of occurrence then in that event, the benefit has to be leaned in favour of accused. As such, the conviction and sentence recorded by the learned lower court against appellants-convict is set aside. The appeals are allowed. Appellant Awadhesh Singh is on bail, hence is discharged from its liability while appellant Guddu Singh, Manoj Singh, Santosh Singh are in custody. Hence are directed to be released if not wanted in any other case. SHYAM KISHORE SHARMA, J.:–I agree.