JUDGMENT (ORAL) Per A.K. Trivedi, J. 1. The two appellants Algu Yadav and Dharichhan Gonr having been found guilty for an offence punishable under Sections 302/34 of the IPC and sentenced to undergo RI for life as also appellant Dharichhan Gonr found further guilty for an offence punishable under Sections 323 of the IPC and directed to undergo RI for four months with a direction for running his sentence concurrently by the learned Sessions Judge. Gopalganj vide his judgment dated 07.12.1989 passed in Sessions Trial No. 56 of 1986 have filed the instant appeal. 2. Informant (PW 4) on 30.10.1984 at about 8.30 a.m. having carried dead, body of his brother. Mukhlal Sah (deceased) in company of his remaining brothers Mokhtar, Manbodh, Feku and others to Kateya Police Station had given his fardbeyan to the Officer Incharge wherein it was stated that on the preceding night while he was sleeping at his tiled bangla (out house) lying west to his house over a cot his brother Mukhlal (deceased) was sleeping in his palani situated South to his house and his another brother. Mokhtar (PW 1) was sleeping inside the house whereas Manbodh (PW 3) was sleeping by his side and his another brother Feku was sleeping at his Khalihan at a distance of four bighas north to that place. He had also stated that he awoke from his sleep on hearing barking sound over and he came out from his bangla (out house) with lathi in one hand and a torch in another and inquired as to who was there. He had claimed that in torch light he had seen his co-villagers appellants Algu and Dharichhan out of whom Algu was armed with country made gun and Dharichhan was carrying a torch who were also accompanied with 3-4 unknown persons. He had alleged that appellant Dharichhan alongwith other unknown persons came near him snatched away his lathi and began to assault him which was stopped only after intervention of appellant Algu who had said that he is not the actual person. Then according to informant all of them had gone to place of Manbodh and again appellant Algu said that he also was not the actual person. Then. thereafter the informant had alleged they had gone to the place of Mukhlal and after identifying him they began to assault him with lathi. Then according to informant all of them had gone to place of Manbodh and again appellant Algu said that he also was not the actual person. Then. thereafter the informant had alleged they had gone to the place of Mukhlal and after identifying him they began to assault him with lathi. The informant had stated that thereafter he had heard sound of firing and crying sound raised by his brother over which made him believe that his brother has been murdered. He has also claimed that the accused persons thereafter began to proceed towards him and he had escaped after raising alarm. The informant had stated that on hullah raised by him. Indradeo Chaukidar (DW-1). Ramsewak (DW-2) along with others came to whom he had disclosed the entire occurrence. The motive of such occurrence has been suggested by the informant to be ongoing longstanding civil as well as criminal litigation between both the parties. It has further been disclosed by him that on a previous, occasion appellant Algu had threatened him of dire consequences. While giving his aforesaid fardbeyan to police he had also produced a shell (used cartridge) found by him at the place of occurrence. 3. On the basis of aforesaid fardbeyan a formal First Information Report of Kateya P.S. Case No. 36/84 was registered for offence under Sections 341, 337, 327 and 307, IPC in which Section 304, IPC was added on 28.11.1985 and the police after conducting this investigation had submitted chargesheet against the accused persons whereupon cognizance was taken and the Court below finding the offence to be exclusively triable by Court of Sessions the case was accordingly committed to the Court of Session where the trial commenced and had - concluded leading to impugned judgment having the subject matter of instant appeal. 4. The defence case as is evident from mode of cross-examination as well as statement of accused persons recorded under Section 313 of the Cr PC is of complete innocence as well as their false implication. It had further been submitted that the deceased was actually done to death by unknown criminals in altogether different manner but on account of longstanding animosity amongst the parties the appellants have been falsely implicated. 5. It had further been submitted that the deceased was actually done to death by unknown criminals in altogether different manner but on account of longstanding animosity amongst the parties the appellants have been falsely implicated. 5. In order to substantiate its case prosecution had examined altogether six PWs out of whom PW 1 is Mukhtar Sah, PW 2 is Amarnath Tiwari, PW 3 is Manbodh Sah, PW 4 is Dehari Sah, PW 5 is Fulbati Devi, and PW 6 is Dr. Prabhat Kumar Singh. Side by side the prosecution had also exhibited documents namely First Information Report Ext-1. Inquest Report Ext-2. production list Ext-3. Seizure list Ext-4 and post-mortem report Ext-5. The defence had also examined two DWs out of whom DW-1 is Indradeo Chaukidar and DW-2 is Ram Sewak Hazam the two FIR named witnesses but had not exhibited any documentary evidence. 6. While assailing the judgment of conviction/and sentence learned lawyer for the appellant has submitted that the finding recorded by the learned lower Court happens to be out and out by way of mechanical appreciation instead of judicial appreciation of the materials available on record. To support the same it has further been submitted that right from the beginning the prosecution case was suffering from material infirmities which was well visible from the record itself and those are:- (a) There happens to be non-examination of material witnesses at least the witnesses of the boundary whose name had figured in the charge-sheet and no explanation has been furnished on behalf of prosecution for their non-examination. (b) Two FIR attesting witnesses as well as those of the persons whose name figured in the First Information Report itself had neither been shown as charge-sheet witness nor the prosecution had desired to produce those witnesses whose presence was but natural and could have corroborated the prosecution version at least by way of hearsay witness. (c) The manner of occurrence and the place of occurrence as divulged by the prosecution witnesses did not inspire confidence to the extent of their being eyewitness to the occurrence; (d) 'The identification of appellants being co-villagers and also on inimical terms was itself doubtful because it was not even said that they had attempted to conceal their identities. (e) There happens to be disclosure of torch the source of identification which was never produced before the I.O. nor was it seized during course of investigation. (e) There happens to be disclosure of torch the source of identification which was never produced before the I.O. nor was it seized during course of investigation. (f) From the conduct of the prosecution, its whole story was full of absurdities inasmuch as in the background of admitted animosity with the accused persons/ appellants when the informant and his another brother was' already taken under their clutch the allegation of sparing the informant, his another brother Manbodh for killing the deceased, Mukhlal does not inspire confidence. (g) At the time of alleged occurrence there is no disclosure by the prosecution witnesses that they had flashed light in which they could have seen these appellants as authors of inflicting injury which proved to be fatal for the deceased Mukhlal. (h) When the evidence of PW 2. I.O. is taken together the evidence of DW-l and DW-2 who happen to be the FIR named witnesses and whose arrival at the place of occurrence had already been disclosed by the informant himself in that event another scenario as has been projected suggesting that PW 1. Mukhtar Sah who happens to be residing at Durgapur and was doing business and had come to his village and on account thereof. some miscreants had raided the house of prosecution party wherein deceased was done to death is more probable and in this background the two appellants on inimical terms have been falsely roped in. (i) In the light of the aforesaid infirmities persisting in the case of prosecution the finding recorded by the learned lower Court is factually incorrect and legally unsustainable. 7. On the other hand, learned APP supporting the findings recorded by the learned lower Court has submitted that the evidence of the witnesses in its entirety has to be looked into. With regard to presence of PW 4. the informant as well as PW 3 Manbodh, there can be no second thought inasmuch as from perusal of evidence of these two PWs it is evident that they are consistent and on that very score, their testimonies are both reliable and trustworthy wherein a definite allegation has been attributed against the appellants/convict who were responsible for causing death of deceased. Mukhlal on the alleged date and time of Occurrence. Mukhlal on the alleged date and time of Occurrence. According to learned APP the evidence on record would fully justify the findings recorded by the trial Court which would require no interference of this Court. 8. At the outset it must be held by this Court that there happens to be no controversy with regard to death of Mukhlal Sah by means to fire-arm as is clear from evidence of PW 6 the Doctor who in his P.M. report had recorded as follows :- "1. One circular wound with lacerated and irregular margin of about 1" radius present on the upper portion of Chest wall just below the Neck. The lacerated wound had its margin charred and blackened. There were associated fracture of I & II left ribs and clavicle of left side. The left border of sternum was also broken. The bone particles were in pieces. The left upper lobe and middle lobe were highly congested and the left pleural cavity was full of blood. The wound of entrance was present the portion of pellet has been preserved. The pellet was found in the left Chest cavity. 2. There was abrasion of the mid portion of back. It was of 1- 1/2" x 1/4" skin deep. 3. One bruise on the mid portion of waist about 2" x 1/2" of size was also located Injury No. 1 was caused by fire-arm. This was lethal and was responsible for the life of deceased. Injury No. 2 and 3 were due to hard & blunt weapon and were simple. Cause of death-Due to injury No. 1 leading -to excessive haemorrhage and shock. “Time since death within 48 hours." 9. Defence has not challenged the said finding during cross-examination. Hence the fact- remains that the cause of death of the deceased was injury caused by fire-arm. 10. Now, coming to the evidence of material witnesses, PW 1 had not claimed himself to be an eye-witness of occurrence on account of having slept inside his house and so he had deposed that in the night of 30.10.84 at about 2:00 a.m. when he came out from his room, he had found so many villagers including his brothers, Dehari, Manbodh and Feku. He further had found Mukhlal dead. On query by him Dehari had disclosed that appellant Algu had shot at Mukhlal while appellant Dharichhan was standing there with lathi. He further had found Mukhlal dead. On query by him Dehari had disclosed that appellant Algu had shot at Mukhlal while appellant Dharichhan was standing there with lathi. Then thereafter according to PW 1. They had taken dead body to Kateya P.S. During cross-examination at para-5 he had disclosed that when he came out from his house he had seen 4-5 persons of his Mohalla but he did not speak to them with regard to occurrence. In para-6 of his cross-examination, he had also admitted animosity with the accused persons. 11. PW 3, had deposed that on the alleged date and time of occurrence while he along with his brother Dehari (PW 4) was sleeping at his bangla (out house) lying west to his house the latter got up on hearing sound of barking and then thereafter he had gone outside having lathi in one hand and torch in another. PW 3 had also said that though he awoke but had inside the bangla (out house) and had seen appellants Algu and Dharichhan followed by some unknown persons to have come near to him but after seeing him appellant Algu had said to leave PW 3 since he was not the person they were looking for and then thereafter all of them had gone away but the PW 3 had followed them and could see that appellants Algu and Dharichhan were assaulting his brother Mukhlal and appellant Algu had opened fire while Mukhlal was sleeping in palani lying South to his house. He in his evidence had claimed to have seen the aforesaid occurrence from a distance of five or six hands west from that very palani. Dehari his brother was also present there in injured condition. Then thereafter, the accused persons including the appellants had also gone in search of Mukhtar and in that course they had also pushed door of the house and then gone inside. He has also stated that when he had gone to Mukhlal he had found lying on the earth and was restless due to a gun-shot injury over his person and later on he had died. PW 3 thereafter, had gone to the P.S. along with dead body of Mukhlal. During cross-examination, he had however given a different picture with regard to the topography of the place of occurrence. PW 3 thereafter, had gone to the P.S. along with dead body of Mukhlal. During cross-examination, he had however given a different picture with regard to the topography of the place of occurrence. In para-6 he had deposed that palani was South to his house while tiled bangla (out house) was west to his house. Then. he had also disclosed that South to that bungalow there was another palani wherein he along with his brother Dehari were sleeping having torch and he was awakened on hearing the sound of foot steps. According to him by that time his brother Dehari had gone away from him. In para-8 he had disclosed that he had not flashed torch rather the dacoits themselves had flashed their torch and had made Dehari forcibly to sit east to the palani PW 3 claimed that due to fear he did not come out and could make move only when the miscreants began to assault Mukhlal. In para-9 again he had disclosed presence of palani and his being stationed at the place of palani which was in north of his house while the palani wherein Mukhlal was South to the house. Again in para-10 he had disclosed that first of all his brother Dehari was assaulted and then the miscreants came near him and then thereafter had gone near Mukhlal where he was assaulted. In para-11 there is contradiction regarding his earlier statement given to the police. 12. So from his evidence first of all improbability with regard to his status as an eye-witness is evident because of the fact that as per para-9 of his evidence in cross-examination he had said that he was sleeping at that moment north to his house in a palani while deceased was sleeping South to the house in a palani which is totally inconsistent with his evidence in his examination in chief wherein he had disclosed that he along with informant were sleeping in the palani which was South to his tiled bangla (out house) and west to his house. When the location given by PW 3 is intervened by a residential house then in that event the person in north side will not be in a position to see the person at South side. When the location given by PW 3 is intervened by a residential house then in that event the person in north side will not be in a position to see the person at South side. Not only this, from his evidence, it is also evident that he did not have the means of identification either torch light or any other source of light which could have enabled him to see the entire occurrence and his story of such identification in the torch light of miscreants is also unbelievable. Not only this from his deposition in his examination in chief alone there is absence of having any source of light at the time when accused had allegedly seen him. Apart from this, during course of cross-examination. this witness had not named any of the accused in particular rather in the whole cross-examination he had gone disclosing and divulging "thief", "dacoit", "miscreant" and the manner wherein the whole thing has been divulged by him is suggestive of the fact that the occurrence was committed certainly by the unknown dacoits instead of present appellants who otherwise with an intention to commit murder had sufficient time and opportunity to eliminate either PW 4, Dehart or this witness PW 3 before approaching and killing Mukhlal. There happens to be no explanation at all at the end of this PW 3 on this crucial aspect which in turn would make the prosecution case doubtful. 13. PW 4 happens to be the informant who had deposed that Mukhlal, Manbodh. Mokhtar and Feku are his full brothers. On the alleged date and time of occurrence, he was sleeping in his bangla (out house) lying 5 or 6 steps west from his house while Mukhlal (deceased) was sleeping in a palani south to his house and Mukhtar was sleeping inside the house whereas Feku was sleeping in his Khalihan. He had said that he awoke after hearing sound of barking and came out from his bangla with lathi and torch in his hands and in torch-light he had seen appellant Algu armed with gun with three to four other persons armed with lathi while appellant Dharichhan was carrying torch. He had said that he awoke after hearing sound of barking and came out from his bangla with lathi and torch in his hands and in torch-light he had seen appellant Algu armed with gun with three to four other persons armed with lathi while appellant Dharichhan was carrying torch. According to him appellant Dharichan had given 3-4 lathi blow upon him over which appellant Algu had said that why he was being assaulted when he was not the person they were looking for and thereafter, they had gone to Manbodh and also spared him for the similar reason and gone to Mukhlal where on an order of appellant Algu. they had assaulted him with lathi He had also stated that because of the fact that he was forced to sit inside the bangla he had not seen who had assaulted Mukhlal with lathi According to him they had shot at Mukhlal and he had heard crying sound of Mukhlal and thereafter, accused had left the place. He had also said that they began to search him over which he had left the place out of fear and after covering some distance he began to raise alarm on which 2-4 persons came but by then accused persons had already fled away. Thereafter, he had gone to Mukhlal and had found him having injury over his Chest in a restless condition and also succumbing to his injuries within five minutes. He also disclosed that there was litigation with accused per-sons since before and on account of the same they had committed the occurrence. On the following morning, he took the dead body empty - shell to the P.S. where the police case was registered. His injury was examined at the hospital. During cross-examination, he had said that the miscreants were 5 to 7 in number and appellant Dharichhan and his companion had assaulted with lathi then there happens to be contradiction. Further, he had disclosed that accused persons had forced him to sit five steps east to his bangla in Bhusaul. In para-11 there happens to be contradiction with regard to presence of appellant Algu who had gone along with them up to P.S. and returned back from there along with his full brother Feku. Further, he had disclosed that accused persons had forced him to sit five steps east to his bangla in Bhusaul. In para-11 there happens to be contradiction with regard to presence of appellant Algu who had gone along with them up to P.S. and returned back from there along with his full brother Feku. Then in para-13 he had said that deceased Mukhlal was karta of his family while another brother Mukhtar does his business at Durgapur and had come to the village as on the date of occurrence there was Chhat festival. In para-14 he had said that first of all Ramsewak Hajam and Indradeo Chaukidar had come to his place and then thereafter other villagers came. Again there happens to be contradiction over his previous statement given to the police regarding raid made by the dacoits who had tried to make entrance through the door and having not succeeded in their bid had caused murder of Mukhlal. At para-16 he had admitted that he had not shown his torch to the I.O. 14. Thus, from evidence of PW 4 informant. It is evident that he had shifted his presence from bangla to Bhuskar which happens to be wholly inconsistent with the evidence of PW 3. He had disclosed location of bungalow from his house but again failed to disclose the distance of palani wherein deceased Mukhlal was sleeping from his house. In likewise manner he also contradicted the location of the bangla as well as palani wherein he himself along with PW 3 as well as Mukhlal deceased respectively were sleeping. On this score also there happens to be inconsistency with the evidence of PW 3. From his evidence. it is also evident that he had not disclosed flashing of torch after first incidence wherein he had claimed identification of appellants Algu and Dharichhan and that happens to be reason that he had fairly made none responsible for causing death of Mukhlal by fire-arm. As such, identification of the accused on this score also became doubtful to such extent that they could be held responsible for causing death of deceased Mukhlal. Not only this when his evidence is taken together with Ext -1 the First Information Report. It is evident in the First Information Report. As such, identification of the accused on this score also became doubtful to such extent that they could be held responsible for causing death of deceased Mukhlal. Not only this when his evidence is taken together with Ext -1 the First Information Report. It is evident in the First Information Report. He had disclosed that after committing murder of Mukhlal, the accused persons had proceeded towards him due to which he had escaped from there to save his life but during course of evidence aforesaid this theme has been altogether omitted. This part has intentionally been left out as is evident from the conduct of informant himself. Thus in the aforesaid background of these glaring inconsistent version of PW 4 informant the whole prosecution case becomes unreliable unbelievable as the informant was apprehended by the accused persons at the first count wherein he was assaulted by Dharichan with lathi. Had the accused persons carried the intention to commit murder then in that event they would not have spared either the informant, PW 4 or Manbodh. PW 3 before coming to Mukhlal the deceased or even escaping therefrom would not have deterred the accused persons to cause murder of Manbodh who was claimed to be present there. 15. PW 5 happens to be the wife of deceased. She had disclaimed that on the alleged date and time of occurrence she was sleeping inside the house while her husband was sleeping in a palani lying south to her house. There was window in a room in which she was sleeping. She saw from the window appellants Algu and Dharichhan assaulting her husband and according to her appellant Algu was armed with gun while appellant- Dharichhan was armed with lathi and torch whereas four more persons were there whom she did not identify. Then she had stated that appellant Algu fired and when the accused persons had gone from there then she came near her husband and found gun shot injury over his Chest who was in restless condition before succumbing to his injury. She had also stated that thereafter his dead body was taken away by his family members to P.S. She had also disclosed that appellants Algu and Dharichan were on inimical terms. She had also stated that thereafter his dead body was taken away by his family members to P.S. She had also disclosed that appellants Algu and Dharichan were on inimical terms. In para-5 she had disclosed that the dimension of palani wherein her husband was sleeping was ten hands in length and five hands in breadth and it was a thatched house whose western side was covered with thatched wall which extended up to northern side. In para-5. She had disclosed that bangla was west to her house. In para-8 she had disclosed that so many persons had come after occurrence but she had not disclosed to any of them regarding occurrence. In para-9 there happens to be contradiction over non-disclosure by her before I.O. in her statement under Section 161 of the Cr PC regarding firing made by appellant Algu. In para-11 she had disclosed that no lantern was burning in her house at the relevant time rather accused persons themselves had flashed their torch. 16. Thus from her evidence, it is evident that she had got no source of identification and whatever she had disclosed in her evidence was wholly inconsistent with the evidence of PWs 3 and 4. Not only this the physical feature of palani wherein deceased was sleeping as disclosed by her would itself make presence of PWs 3 and 4 doubtful and consequently affect their claim as an eye-witness to occurrence, in the background of the fact that the palani according to her was covered through thatched walls. Therefore, on this score, also her evidence happens to be shaky and unreliable. 17. PW 2 is the Investigating Officer who had deposed that on 30.10.84 while he 'was O/C of Kateya P.S., Dehari alongwith others had come with the dead body of Mukhlal and he recorded his First Information Report on the basis of which Kateya P.S. Case No. 36/84 was registered. He took up investigation and during course thereof he had prepared production-cum-seizure list on account of production of empty shells by informant Dehari Sah. He had also prepared inquest report. Then he also recorded statement of witnesses' present there. He then issued injury report with regard to informant PW 4 and then proceeded towards place of occurrence. He took up investigation and during course thereof he had prepared production-cum-seizure list on account of production of empty shells by informant Dehari Sah. He had also prepared inquest report. Then he also recorded statement of witnesses' present there. He then issued injury report with regard to informant PW 4 and then proceeded towards place of occurrence. As per para-8 of his examination-in-chief he had detailed the topography of place of occurrence wherein he disclosed that the house of informant happens to be western front and south to it lies a palani wherein deceased was said to be sleeping at the relevant time. He had also found one Lungi near cot as well as copious blood was found on the earth. He had also seen one window affixed at northern side of palani. He had seized the cloth as well as blood stained earth. After receiving post-mortem report he had concluded investigation and submitted charge-sheet. In para-12, he had disclosed that he took statement of persons of adjoining houses but none of them had disclosed the name of assailants. During course of investigation it had come to light that the occurrence was committed by the miscreants of Diyara. After examination of rest witnesses, he was re-called and the evidence of PW 4 informant in context of appellant Algu having followed up to P.S. and then returned back with his brother Feku was taken. From his evidence, it is evident that so far his objective finding regarding topography of P.O. is concerned, that is not correct in the background of the fact that neither the informant nor any witness or he himself tried to see the place that means to say the bangla or the palani where PW 3 and PW 4 have claimed to have slept. He also did not inspect the room wherein PW 5, wife of deceased had slept and further to find out as to whether there was any window in the room facing towards south. This omission, in the background of nature of evidence adduced on behalf of prosecution as referred above happens to be intentional one because of the fact that had the aforesaid theme brought up on record it had certainly axed upon the status of PWs 3 and 4 claiming themselves to be an eye-witness of occurrence. This omission, in the background of nature of evidence adduced on behalf of prosecution as referred above happens to be intentional one because of the fact that had the aforesaid theme brought up on record it had certainly axed upon the status of PWs 3 and 4 claiming themselves to be an eye-witness of occurrence. Furthermore, the objective finding of the I.O. regarding presence of window in the palani discredited PW 5 who had claimed that she had seen the occurrence from her room through the window on account of presence of window at the northern side of palani wherein deceased was sleeping opening towards south. The I.O. had also not disclosed that the aforesaid window was affixed in the wall of main house rather he had disclosed that it was affixed in the thatched wall by which the palani was bounded. Therefore, this part of objective finding of the I.O. rules out possibility of PW 5 to an eye-witness to the occurrence. 18. From the evidence of PW 2, it is further evident that material part of the evidence by which the informant during course of his further statement before the I.O. had shown presence of Algu accompanying them up to P.S. and then returning therefrom with his full brother Feku has purposely been withheld by the PW 4. This statement certainly has got bearing upon the prosecution case as well as it could have shown the conduct of the accused just after alleged occurrence. Had the accused Algu been the main assailant. He could not have dared to accompany the dead body with the prosecution party to the P.S. and returned back from there along with Feku one of the brothers of the deceased. That happens to be precisely the reason behind non-examination of Feku one of the full brother of deceased as well as PWs 1, 3 and 4 and the prosecution has also failed to give any explanation for his non-examination who at least had stood on same line that of PW 1 being at khalihan. Presence of Indradeo Chaukidar and Ramsewak Hajam also happens to be there right from the First Information 'Report but the prosecution had not examined them nor has any explanation for their non-examination. Presence of Indradeo Chaukidar and Ramsewak Hajam also happens to be there right from the First Information 'Report but the prosecution had not examined them nor has any explanation for their non-examination. Those witnesses were produced in Court on behalf of defence and were examined as DWs-1 and 2 who had clearly stated that when they reached at the house of informant after hearing sound of firing none had disclosed name of assailants. Prosecution had not been able to shake their testimony on that score. 19. Therefore, taking into account the cumulative effect of the evidence adduced on behalf of prosecution. It is evident that none of the prosecution witnesses would be stamped as an eye-witness to the occurrence and on account thereof their testimony as an eye-witness could not be relied upon. As such, it can safely be inferred that prosecution has not been able to substantiate its case beyond all reasonable doubt against the appellants/ convicts. 20. In view of or our above discussions, the finding recorded by the learned lower Court with regard to guilt as well as sentence cannot be sustained. Thus this appeal is allowed and the impugned judgment is set aside. Both the appellants are on bail and they are now discharged from liability of bail bonds. Appeal allowed.