JUDGMENT Ashwani Kumar Singh. J.-The present appeal is directed against the judgment and order dated 23.12.1988 passed by the learned Sessions Judge, Begusarai in Sessions Case No. 80 of 1986 by which the sole appellant has been convicted for the offence punishable under Section 302 of the Indian Penal Code and sentenced to undergo R.I. for life. 2. The prosecution case is based on the fardbeyan of Md. Akbar (PW 4) which was recorded on 8.8.1984 at 1.15 a.m. in Sadar Hospital. Begusarai by an S.I. of Begusarai Police Station, namely Ramanand Singh. The informant has alleged in his fardbeyan that he had come to the matrimonial house of his sister at village Laduara on 7.8.1984 and his brother Md. Naeem had also come to his in-laws house at village Laduara. His brother Md. Naeem was sleeping at the door of Md. Mansoor (brother-in-law of the informant) and he was awake. At about 10.30 p.m. the appellant came there armed with a pistol and fired at him causing gun-shot injury on his head. On the sound of firing, several co-villagers came and saw the appellant armed with a pistol running away from the place of occurrence. The informant has further claimed that the incident was witnessed by Shami Ahmad (PW 5), Ushman Mian (not examined). Muso Mian (not examined) and other. The victim became unconscious after sustaining gun-shot injury. He was carried to Sadar Hospital, Begusarai with aid of the aforesaid named persons, where he was undergoing treatment. The victim had not regained consciousness even at the time of recording of the fardbeyan and. thus, was not able to speak. The Informant has also stated that the appellant and the deceased were known to each other and there was some dispute relating to transaction of money between them, as a result of which. the alleged offence was committed. The fardbeyan of the informant has been witnessed by Md. Ushman Mian (not examined) and Md. Naushad (PW 6). On the basis of aforesaid fardbeyan, a formal F.I.R. was registered being Muffasil P.S. Case No. 27 dated 8.8.1984 at 8.30 a.m. under Section 302, IPC and 27 of the Arms Act against the appellant and investigation was taken up. 3. On conclusion of the investigation. the police submitted charge-sheet against the appellant. The learned Chief Judicial Magistrate, after taking cognizance of the offence. 3. On conclusion of the investigation. the police submitted charge-sheet against the appellant. The learned Chief Judicial Magistrate, after taking cognizance of the offence. committed the case to the Court of Sessions for trial. The trial Court framed charge against the appellant under Section 302 of the Indian Penal Code for committing murder of Md. Naeem to which the appellant did not plead guilty and claimed to be tried. 4. In course of trial, in order to prove the charges the prosecution has examined altogether seven witnesses. Out of whom PW 1 Jubeda Khatoon in her deposition stated that she saw the appellant fleeing away immediately after she came out on hearing sound of firing. PWs 2, 3 & 4 namely, Hasmu, Sabro and Md. Akbar respectively are alleged eye-witnesses. PW 5 Shami Ahmad is a hearsay witness, PW 6 Md. Naushad is a formal witness. who has proved seizure list. PW 7 Dr. M P. Gupta is the doctor who conducted the post-mortem examination on the dead body of the deceased and proved the post-mortem report. PW 8 Radha Kant Jha is the Investigating Officer of the case. 5. The defence has also examined two witnesses. They are D.W.-l Md. Akhtar and D.W.-2 Md. Lalim in order to prove its innocence. D.W.-1 Md. Akhtar is maternal uncle of both the deceased and the informant. He is a resident of the place of occurrence village. He has deposed that from the date and time of occurrence, the informant was at his residence. On the sound of filing, he together with the informant went to the place of occurrence. They found Muso the brother-in law of the deceased there. Some other persons also came there but no one took name of the appellant as the assailant. D.W.-2 Md. Kalim is brother-in-law of PW 5 Shami Ahmad. the brother-in-law of the deceased. He is also a resident of the place of occurrence village. He too claims that on the sound of filing, he went to the place of occurrence. He found Md. Naeem in an injured condition. Muso Miyan and inmates of the house were present there. The informant came to the place of occurrence after ten minutes of the occurrence. On that day, it was drizzling since evening. 6. He too claims that on the sound of filing, he went to the place of occurrence. He found Md. Naeem in an injured condition. Muso Miyan and inmates of the house were present there. The informant came to the place of occurrence after ten minutes of the occurrence. On that day, it was drizzling since evening. 6. it has been argued on behalf of the appellant that the deceased was a man of questionable character and he had enmity with several persons. He might have been killed by some unknown criminals but merely on suspicion the appellant has been implicated in this case. He contends that as per prosecution evidence on record, it is doubtful as to whether anyone else was sleeping on the other "chowki' kept on the verandah on which the incident of occurrence is alleged to have taken place and, if any, whether Md. Akbar (PW 4) or Md. Mustaque @ Md. Muso (not examined) was sleeping there. According to PW 2 Hasmu who happens to be the sister-in-law (gotani) of the deceased, at whose verandah the deceased was found injured, it was Md. Muso, the brother-in-law of the deceased Md. Naeem, who was sleeping there. The said Md. Muso is a F.I.R. named witness but he has deliberately been not examined by the prosecution. 7. Learned counsel for the appellant further contends that he Md. Muso has been given up by the appellant for the reason that in his previous statement recorded by police under Section 161 Cr. P.C., he had stated that it was he who was sleeping with the deceased on a separate "chowki' in the verandah. 8. We have perused the evidence adduced on behalf of the prosecution and we find that apart from the informant. Md. Akbar (PW 4) not a single witness had deposed before the Court that the informant Md. Akbar was sleeping at the verandah where the deceased was shot at. We further find that the evidence of (PW 2) Hasmu is extremely doubtful. Her deposition that at the relevant moment her kids were thirsty and, as such, she came out of her house to take water from the hand-pipe and, incidentally she also saw the appellant quarreling with his wife who was pressing him not to kill the deceased seems to be quite unnatural and incredible. Her deposition that at the relevant moment her kids were thirsty and, as such, she came out of her house to take water from the hand-pipe and, incidentally she also saw the appellant quarreling with his wife who was pressing him not to kill the deceased seems to be quite unnatural and incredible. Her statement that a "dhibri' was burning at the alleged place of occurrence has been found false by the Investigating Officer Radha Kant Jha (PW 8). who has specifically stated in his deposition that at the place of occurrence. he did not find any lantern or "dhibri'. PW 2 has materially been contradicted by the Investigating Officer. who has stated that she did not state in her previous statement recorded under Section 161 Cr. P.C. that it was a moon-lit night or she went out of her house to take water at the relevant time as her kids were thirsty. Thus, we find that (PW 2) Hasmu has materially improved herself while deposing in the Court. We further find that (PW 3) Sabro, the sister of the deceased who claims to have identified the appellant while he shot at the deceased to be not credible in the light of the evidence adduced in the Court. In the fardbeyan. the informant has stated that on the sound of firing villagers came, who saw the appellant fleeing away. The informant speaks about other persons than his sister and her sister-in-laws to have witnessed the occurrence. 9. It is to be noted here that PW 1 Jubeda Khatoon and PW 2 Hasmu are sister-in-laws (gotanis) of PW 3 Sabro. the sister of deceased. There is no mention of the name either of PW 1 or PW 2 or PW 3 in the fardbeyan of the informant. However, while deposing in the Court. (PW 4) Md. Akbar has stated that on sound of firing PW 1 Jubeda Khatoon. PW 2 Hasmu and PW 3 Sabro and others of the locality came there. Thus, it is apparent from the deposition of PW 4 that PWs 1, 2 & 3 came out after hearing the sound of firing and. therefore. they could not have witnessed the actual firing made by the appellant. PW 3 has also been materially contradicted by the Investing Officer. who has stated that in her previous statement made before the police. in course of investigation. therefore. they could not have witnessed the actual firing made by the appellant. PW 3 has also been materially contradicted by the Investing Officer. who has stated that in her previous statement made before the police. in course of investigation. she had not stated that the appellant was quarreling with his wife and she saw the appellant shooting at the deceased. Thus, it is apparent that neither PW 3 Sabro nor her sister-in-laws (PW 1 and PW 2). who have deposed and have claimed to have seen the occurrence as eye-witnesses are reliable. PW 4 Md. Akbar. who is informant of the case has admitted in cross-examination that the villagers came after few minutes of the sound of firing and the appellant fled away immediately after firing upon the deceased. In such circumstance. taking into consideration the time of occurrence. which admittedly is 10.30 p.m. in August 1984 and the fact that PW 3 Sabro, sister of deceased in her deposition stated that the fateful night was a drizzling night and there was a mud all around outside her house. it would have been difficult for the witnesses to identity the accused. Though. PW 4 claims in his deposition that when the occurrence took place he was awake but he has been contradicted by Investigating Officer in material particular in this regard. 10. The attention of PW 4 was also drawn towards his previous statement and he stated that he had not made such statement to the Investigating Officer that he woke up on the sound of firing whereas the Investigating Officer clearly stated that Md. Akbar (PW 4) had stated that he woke up after hearing sound of firing. 11. PW 5 Shami Ahmad who is brother-in-law of the deceased is a hearsay witness. He admits that he was inside the house and he came out on hearing the sound of firing but. he claims to have seen the appellant fleeing away with a pistol in his hand. For the reasons assigned hereinabove, the probability of PW 5 seeing the appellant fleeing away in wee hours of night seems to be doubtful. 12. PW 6 is a formal witness. He has proved his signature and signature of Md. Ayub on the seizure list. which were marked as Exhibits-2 & 2/1 respectively. 13. For the reasons assigned hereinabove, the probability of PW 5 seeing the appellant fleeing away in wee hours of night seems to be doubtful. 12. PW 6 is a formal witness. He has proved his signature and signature of Md. Ayub on the seizure list. which were marked as Exhibits-2 & 2/1 respectively. 13. PW 7 is the doctor, who conducted post-mortem examination on the dead body of the deceased and proved the post-mortem report. which has been marked as Exhibit-3. The post-mortem examination of the deceased was conducted on 8.8.1984 at 8 a.m. and the following ante-mortem injuries were found on the dead body of the deceased : (i) Perforating wound 1/2" x 1/4" over forehead left side bleeding inverted scorched margin, entry wound. (ii) Perforating would 1" x 1/2" on left occipital region with inverted margin and the blood was oozing out of it and brain substance was protruding, an exit wound. According to the doctor (PW 7), the death was due to brain injury caused by firearm. The time elapsed since death was within 12 hours. In cross- examination, the doctor admits that in case of firing from a close range. it will cause burning. It was not possible for him to say as to in what state the firing was made. He further admitted that rigor mortis was present in all the four limbs. 14. PW 8 Radha Kant Jha. a Sub-Inspector of Police was posted as an Assistant Sub-Inspector of Police in Muffasil police station Begusarai on 8.8.1984. He received the fardbeyan from town police station at 8.30 a.m. The fardbeyan was recorded by S.I., Ramanand Singh (not examined). Who had also prepared the inquest report which was received with the fardbeyan. The fardbeyan has been proved by PW 8 which has been marked as Exhibit-4. PW 8 was appointed the Investigating Officer of the case. He conducted the investigation, inspected the place of occurrence, seized blood - stained clothes. bed, towel. etc and prepared seizure list which has been proved and marked as Exhibit-5. He also recorded the statement of witnesses and submitted charge sheet. 15. It has been contended on behalf of the appellant that formal F.I.R. of the case which was drawn by the Officer-in-Charge of the Muffasil police station, who had entrusted investigation to the Investigating Officer has not been proved by the prosecution. The Sub-Inspector of Police, Ramanand Singh. He also recorded the statement of witnesses and submitted charge sheet. 15. It has been contended on behalf of the appellant that formal F.I.R. of the case which was drawn by the Officer-in-Charge of the Muffasil police station, who had entrusted investigation to the Investigating Officer has not been proved by the prosecution. The Sub-Inspector of Police, Ramanand Singh. who recorded the fardbeyan of the informant and prepared the inquest report has also not been examined in this case, which has caused prejudice to the case of defence. Though, the Investigating Officer (PW 8) admits in his deposition that he received the fardbeyan along with the inquest report prepared by said Ramanand Singh. But, curiously enough, the inquest report has not been brought on record. The material exhibits for which the seizure list was prepared were not produced in the Court. From the deposition of the I.O., it appears 'hat blood-stained clothes and the front part of 303 cartridge were seized. But neither the clothes nor the fired cartridge was examined by forensic expert in order to ascertain the cause of death especially as to whether the cartridge found and seized was used in the crime and was sufficient cause the type the injury found on the person of the deceased. 16. It is also contended that all the witnesses examined on behalf of the prosecution have been contradicted by the Investigating Officer in material particular. which has already been noticed by us hereinabove. 17. It has rightly been argued that non-examination of the police officer. who recorded the fardbeyan and prepared the inquest report as well as the fact that the inquest report having not been brought on record has caused prejudice to the appellant. There is neither any explanation on behalf of the prosecution for non-examination of Ramanand Singh nor any explanation for not bringing on record the inquest report prepared by him. 18. It is also contended on behalf of the prosecution that in the present case not a single independent witness apart from official witnesses has been examined by the prosecution. All the witnesses so examined on behalf of the prosecution are related to the deceased and the informant. 19. We further find that Muso Mian and Ushman Miyan have been named by the informant in the fardbeyan. They were important witnesses. They have been given up by the prosecution. All the witnesses so examined on behalf of the prosecution are related to the deceased and the informant. 19. We further find that Muso Mian and Ushman Miyan have been named by the informant in the fardbeyan. They were important witnesses. They have been given up by the prosecution. It is to be noted that Muso Miyan was none else but the brother-in-law of the deceased. There is evidence on record led on behalf of the prosecution as discussed above that Muso Miyan was sleeping on a separate chowki with the deceased at the verandah on the fateful night. He was an important witness. He has been given up by the prosecution. 20. Thus, after hearing the parties and on appreciation of evidence. we find the evidence of PW 1 Jubeda Khatoon, PW 2 Hasmu. PW 3 Sabro to be highly suspicious. We also find the evidence of the informant Md. Akbar (PW 4) to be not above board. They are inconsistent to each other. They have been contradicted by the Investigating Officer m material particular. The means of identification claimed by the witnesses has not been found by the Investigating Officer when he inspected the place of occurrence, In absence of means of identification in a drizzling night at about 10.30 p.m. when the witnesses like PW 1, PW 2, PW 3 and PW 5 who came after hearing sound of firing. it becomes suspicious that they would have been able to identify the appellant while fleeing away. This is also because PW 4 has stated that the villagers came after few minutes of sound of firing. Further. the conduct of witnesses including the informant, who claim to have identified the appellant at the time of occurrence in not chasing him while fleeing away. is highly unnatural. The witnesses examined on behalf of the prosecution are all relatives. No independent witness has come forward to support the prosecution case. The witnesses named in the F.I.R. like. Ushman Miyan and Muso Miyan have been given up by the prosecution and those who are not named in the F.I.R., have deposed like eye-witnesses. The informant in his fardbeyan stated that his brother was sleeping on a 'chowki at the time of occurrence but he was awake. In his statement made under Section 161 Cr. P.C. before the Investigating Officer. The informant in his fardbeyan stated that his brother was sleeping on a 'chowki at the time of occurrence but he was awake. In his statement made under Section 161 Cr. P.C. before the Investigating Officer. he has stated he woke up on the sound of firing and saw the appellant fleeing away. While deposing in Court, he has stated that at the relevant time of occurrence. he was resting on a separate 'chowki but was not asleep. His presence at the place of occurrence itself is under cloud of doubt in view of the deposition of PW 2 Hasmu, who has stated in her deposition that it was Md. Muso who was sleeping at her verandah along with the deceased Md. Naeem. Further. no other witness apart from (PW 4) Md. Akbar has stated that he was sleeping at the verandah where the deceased was shot at, The Police Officer, who recorded the fardbeyan and prepared the inquest report. has not been examined and there is no explanation for his non-examination. The inquest report has not been brought on record. The trial Court discarded the evidence of the defence witnesses only on the ground that they were not examined by the police in course of investigation. 21. In view of all these circumstances. we are of the view that the prosecution has not been able to prove its case beyond reasonable doubt. In the result, the appeal stands allowed. The impugned judgment of conviction and sentence recorded by the trial Court is. Hereby, set aside. The appellant who is already on bail is discharged from the liabilities of bail bonds. Navaniti Prasad Singh. J.-I agree. Appeal allowed.