JUDGMENT (ORAL) Shyam Kishore Sharma, J.- When the appeals were taken up for hearing it has been submitted by the appellants of other appeals that Anil Kumar Singh – appellant of Criminal Appeal (DB) No. 240 of 1989 has died. Thus in proof of death, a death certificate granted by the competent officer has been filed through a supplementary affidavit. 2. Hence, there is no confusion in accepting that appellant Anil Kumar Singh has died. 3. In view of the supplementary affidavit, appeal against the appellant Anil Kumar Singh stands abated. 4. Criminal Appeal 227 of 1989 (DB) on behalf of Amrendra Kumar Suman, Criminal Appeal 231 of 1989 (DB) on behalf of Madheshwar Singh @ Madhu, Criminal Appeal 233 of 1989 (DB) on behalf of Akhileshwar Kumar Singh @ Mitai, Criminal Appeal 240 of 1989 (DB) on behalf of Anil Kumar Singh and Criminal Appeal 249 of 1989 (DB) on behalf of Sunil Kumar Singh have been taken up together as all these appeals have arisen out of one judgment and order of sentence dated 18th of May, 1989 passed by the learned 8th Additional Sessions Judge, Patna in Sessions Trial No. 888 of 1987 G.R. Case No. 1057 of 1987 arising out of Kotwali (Shri Krishnapuri) P.S. Case No. 360 dated 05.04.1987 whereby all the appellants were found guilty under Section 302/149 of the Indian Penal Code, appellant Amrendra Kumar Suman and Madheshwar Singh @ Madhu were found guilty under Section 147 of the Indian Penal Code and other three appellants Anil Kumar Singh, Sunil Kumar Singh and Akhileshwar Kumar Singh @ Mitai were further found guilty under Section 148 of the Indian Penal Code and Section 27 of the Arms Act. For the offence under Section 302/149 of the Indian Penal Code the appellants were sentenced to undergo RI for life. For the offence under Section 147 of the Indian Penal Code appellants Amrendra Kumar Suman and Madheshwar Singh @ Madhu were sentenced to undergo RI for one year. For the offence under Section 148 of the Indian Penal Code appellants Akhileshwar Kumar Singh @ Mitai, Anil Kumar Singh and Sunil Kumar Singh were sentenced to undergo rigorous imprisonment for two years and these three persons were further sentenced to undergo rigorous imprisonment for three years each under Section 27 of the Arms Act. The sentences were ordered to run concurrently. 5. The sentences were ordered to run concurrently. 5. The prosecution case is based upon the fardbeyan (Ext.5) of Upendra Kumar P.W.6 – brother of deceased Narendra Kr. Singh recorded by Sub-Inspector R.C. Singh P.W.9 of Sri Krishnapuri police station on 05.04.1987 at about 7 p.m. Narendra Kumar Singh (the deceased) was running his grocery shop located at his house. At that time Rajeev Ranjan Kumar P.W.5, the informant’s elder brother Sachindra Prasad Singh P.W.1 and his Bhagina Dharmendra Kumar P.W.3 were also sitting in the Varanda attached with the shop. The informant with his kid just arrived from Rajapur Bridge side and was about to enter into the house then a white Ambassador Car came. Thereafter three persons Anil Kumar Singh, his younger brother Sunil Kumar Singh and Akhileshwar Kumar Singh @ Mitai got down from the car. Accused Anil Kumar Singh fired which hit the informant’s brother Narendra Kumar Singh in the neck as a result of which he fell down in the Varanda adjacent to the shop and became unconscious. Accused Sunil Kumar Singh and Akhileshwar Kumar Singh @ Mitai also fired from their pistols. Accused Madheshwar Singh @ Madhu and Amrendra Kumar Suman (driving the car) together with two unidentified persons were also sitting inside the car. All the persons fired 6-7 rounds and thereafter three accused entered inside the car and escaped. The motive of the occurrence was that on the same date at about 6 p.m. in the evening the informant’s elder brother Shailendra Kumar Singh P.W. 2 had gone to accused Anil Kumar Singh’s house to complain to the latter’s father as to why Anil Kumar Singh had assaulted Mahanthji of Pranami Mandir on which Anil Kumar Singh got angry with him. Thereupon, the informant’s another brother Narendra Kumar Singh (the deceased) went to the house of Anil Kumar Singh for complaining and therefore quarrel took place. This hostility was the motive which propelled the accused persons to cause murder of Narendra Kumar Singh who was fired upon and thereafter he fell down and became unconscious. He was taken to Patna Medical College Hospital through a tempo but on reaching there he was pronounced dead. This hostility was the motive which propelled the accused persons to cause murder of Narendra Kumar Singh who was fired upon and thereafter he fell down and became unconscious. He was taken to Patna Medical College Hospital through a tempo but on reaching there he was pronounced dead. The Sub-Inspector of Police R.C. Singh P.W.9 in the same night forwarded the aforesaid fardbeyan to the officer-in-charge of Kotwali police station for registering a case under Section 302/34 of the Indian Penal Code and investigation was taken up on the basis of the aforesaid fardbeyan which resulted into formal First Information Report (Ext.6) vide Kotwali (Sri Krishnapuri) P.S. Case No. 360 of 1987. After completion of the investigation charge sheet was submitted against the accused persons. On 25.04.1987 another investigating officer was appointed and later on supplementary charge sheet was submitted against accused Amrendra Kumar Suman by 3rd investigating officer B. Gaddi P.W.11. 6. As the offence were triable by the court of Sessions so it was committed to the court of Sessions where in presence of the accused persons the charges were explained to them. The accused persons pleaded their innocence then the trial proceeded. 7. The defence of the accused persons was of false implication on account of enmity and further plea of appellant Amrendra Kumar Suman was that he was not present at the place of occurrence rather he was at Jamshedpur and so his implication was completely beyond imagination. 8. The prosecution has examined altogether eleven witnesses. They are P.W.1 Sachindra Pd. Singh, P.W.2 Shailendra Kr. Singh, P.W.3 Dharmendra Kumar, P.W.4 Rajnath Singh, P.W.5 Rajeev Ranjan Kumar, P.W.6 Upendra Kumar, P.W.7 Dr. Ram Kishore Pd. Singh, P.W.8 Bishundeo Bhagat, P.W.9 Ram Chandra Singh, P.W.10 Santosh Kr. Gupta and P.W.11 B. Gaddi. P.Ws. 9, 10 and 11 are the investigating officers. P.W.5 is the informant of the case. P.W.7 has conducted the autopsy of the deceased. P.Ws. 1, 2, 5 and 6 are brothers of the decased. P.W.5 has been tendered by the prosecution. P.W.4 is cousin of the deceased. 9. The defence has examined D.W.1 Ram Naresh Singh – S.I. Pirbahore police station, D.W. 2 Chandu Lal Agrawal – a businessman manufacturing the bodies of bus, D.W. 3 Venkat Rao – receptionist in hotel Raj at Jamshedpur. 10. P.W.5 has been tendered by the prosecution. P.W.4 is cousin of the deceased. 9. The defence has examined D.W.1 Ram Naresh Singh – S.I. Pirbahore police station, D.W. 2 Chandu Lal Agrawal – a businessman manufacturing the bodies of bus, D.W. 3 Venkat Rao – receptionist in hotel Raj at Jamshedpur. 10. The trial court after considering the evidence brought on record came to the opinion that the prosecution has been able to prove the charges against the appellants beyond shadow of all reasonable doubts. 11. This Court has to see as to whether the prosecution was able to prove the charges against the appellants beyond shadow of all reasonable doubts or not. 12. P.W. 6 is the informant of the present case. In his evidence he has stated that on 05.04.1987 at 7 p.m. he was sitting in a chair along with his child. Sachindra Pd. Singh P.W.1, Shailendra Kr. Singh P.W.2, Rajeev Ranjan Kumar P.W.5 and Dharmendra Kumar P.W.3 were also present. At that very time one white Ambassador Car came upon the shop of Narendra Kumar Singh (the deceased). Appellants Anil Kumar Singh, Sunil Kumar Singh and Akhileshwar Kumar Singh @ Mitai got down from the car. All these three persons were having pistols. Anil Kumar Singh fired upon the informant’s brother Narendra Kumar Singh which caused injury to him. Narendra Kumar singh trying to escape towards north but he fell down. The accused persons escaped firing at the informant and others. The informant has identified Madheshwar Singh @ Madhu and Amrendra Kumar Suman who were sitting in the car. Amrednra Kumar Suman was upon the driving seat. The injured Narendra Kumar Singh was kept on tempo by Sachindra Pd. Singh, Shailendra Kr. Singh, Dharmendra Kumar, Rajeev Ranjan Kumar and Rajnath Singh and he was carried to Patna Medical College Hospital, Patna where he was pronounced dead by the doctor. The informant and P.W.4 returned to the house for giving this information. Thereafter, P.W.4 and the informant came to Sri Krishnapuri police station where he has given his fardbeyan which was noted and read over to him. After finding the fardbeyan to be true this informant has put his signature (Ext.2/1). Rajnath Singh was attesting witness of the First Information Report. This witness has shown officer-in-charge the place of occurrence. Thereafter, P.W.4 and the informant came to Sri Krishnapuri police station where he has given his fardbeyan which was noted and read over to him. After finding the fardbeyan to be true this informant has put his signature (Ext.2/1). Rajnath Singh was attesting witness of the First Information Report. This witness has shown officer-in-charge the place of occurrence. The motive described by him is that there was quarrel at about preceding 6 p.m. in which Anil Kumar Singh has assaulted Mahanthji and file of Mahanthji was also snatched by him the informant had been to complain for that. The complaint was vehemently revolted by Anil Kumar Singh and he threatened. As the case was not earlier investigated so the informant had to file a protest petition (Ext.3). This witness described the place of occurrence in his cross-examination according to which the accused persons have fired while they were on the road and the deceased were upon the shop. Therefore, the place of occurrence according to this witness is the shop. This version of place of occurrence and is supported by other witnesses who have stated that the firing was resorted to Narendra Kumar singh was at his shop. The investigating officer has described the place of occurrence in para-5 of his evidence in which he has stated that it was at about height of five feet from the road. This version has been supported by other witnesses so there is no difficulty in accepting the evidence brought on behalf of the prosecution that the place of occurrence was the shop belonging to Narendra Kumar Singh and firing was from the road which was lower than the shop. The informant had went one place as stated it was at a height of five feet but later on he has stated that it was on a height of three feet would have the height – either three feet or five feet, the evidence is that the deceased Narendra Kumar Singh was at the place which was situated at 3’ or 5’ on upper side than the place from where firing was resorted. 13. P.W.1 has supported the manner of assault as given by the informant. P.Ws. 1, 2 and 3 have also supported the manner of assault in which they have stated that the firing made by Akhileshwar Kumar Singh @ Mitai proved fatal for Narendra Kumar Singh. 14. 13. P.W.1 has supported the manner of assault as given by the informant. P.Ws. 1, 2 and 3 have also supported the manner of assault in which they have stated that the firing made by Akhileshwar Kumar Singh @ Mitai proved fatal for Narendra Kumar Singh. 14. The evidence of the doctor which was to be discussed and thereafter other aspects can be located into. The doctor P.W.7 has conducted the post-mortem upon the dead body of Narendra Kumar Singh on 06.04.1987 at 11 a.m. and has found one entry wound of size 1/4” diameter on the left lower part of the neck. The margins of the wound were lacerated and inverted. There was no evidence of blackening, glooming and shining round the wound. Blood was found coming out of the wound. The death was caused by firearm and the track of the wound was from above to downwards. In cross-examination the doctor has clarified that the firing must have taken place from a high level and the victim must be standing or sitting at that time. 15. All the prosecution witnesses are consistent that firing was made when Narendra Kumar Singh was at his shop which situated above the place namely the road from where firing was made. If the post-mortem report is considered then only version appears from the report that firing from high level has resulted into death of Narendra Kumar Singh. Not even one witness has stated that firing was from a place from where the deceased was sitting at lower level. The direction of the wound which has been described by the doctor gives only one opinion and no second opinion can be found that firing was from a place which was towards down from the place where the deceased was sitting or standing. Therefore, the medical evidence contradicts the eye witnesses’ account. 16. In the present case all the eye witnesses are family members of the deceased or the informant. P.Ws. 1, 2 and 6 are brothers and they are brother of the deceased. P.W.3 is Bhagina of the deceased and P.W.4 is cousin of the deceased. The occurrence has taken place at the shop and the evidence is that shop was situated at a busy area. Non-examination of independent witnesses can be considered in view of the contradictory evidence of the prosecution witnesses. P.W.3 is Bhagina of the deceased and P.W.4 is cousin of the deceased. The occurrence has taken place at the shop and the evidence is that shop was situated at a busy area. Non-examination of independent witnesses can be considered in view of the contradictory evidence of the prosecution witnesses. Some witnesses have stated that the accused persons were having pistols whereas some are saying that the accused persons were having revolvers. P.W.2 in para-24 has deposed that while he was at hospital then he has discussion with the prosecution witnesses and the names of the persons who were implicated as accused were decided. This very evidence of P.W.2 gives a complete picture which clarifies the manner of implication of the accused persons. 17. Other facts which has come on record is one fardbeyan of P.W.5 that fardbeyan (Ext.B) has been brought on record by defence – not by the prosecution. This fardbeyan was recorded at surgical emergency ward of Patna Medical College Hospital, Patna in which P.W.5 has described the occurrence. The inquest report (Ext.8) shows that the investigation was taken up by S.K. Singh who is author of fardbeyan of Rajeev Ranjan Kumar (Ext.B). This S.K. Singh, Sub-Inspector has not been examined by the prosecution. The evidence has come that when the IO reached at the place of occurrence then he came to know that the place was already visited by the senior police officers namely the SP, Dy. SP and others. What was information to them which led them to coming to the place of occurrence has not been brought on record. Ext.B gives complete new twist to the occurrence because this information was vital and surprisingly it was ignored. It means that the IO had reached the place of occurrence on the basis of fardbeyan of Upendra Kumar are on some other information which has not brought on record. The investigation has concealed the vital evidence which could have unfolded the real version of the occurrence. Suppressing Ext.B is one such act which has to be taken into account and it can be said that the prosecution has withheld the vital information which should have been brought on record. 18. In view of the fact that manner of occurrence virtually contradicted between eye witnesses account and medical version. There is no need to discuss other inconsistencies. Suppressing Ext.B is one such act which has to be taken into account and it can be said that the prosecution has withheld the vital information which should have been brought on record. 18. In view of the fact that manner of occurrence virtually contradicted between eye witnesses account and medical version. There is no need to discuss other inconsistencies. Considering that the ocular witnesses have contradicted themselves on most of the vital points and the medical evidence has given another version of the occurrence. It is apparent that the prosecution has not come with true version. Non-examination of important witnesses like Sub-Inspector S.K. Singh and others. 19. In the result, the judgment of conviction and order of sentence passed against the appellants Amrendra Kumar Suman in Criminal Appeal No. 227 of 1989 (DB), Madheshwar Singh @ Madhu in Criminal Appeal No. 231 of 1989 (DB), Akhileshwar Kumar Singh @ Mitai in Criminal Appeal No. 233 of 1989 (DB) and Sunil Kumar Singh in Appeal No. 249 of 1989 (DB) is set aside. The appeals are allowed. The aforesaid appellants are acquitted of the charges and they are discharged from the liability of their respective bail bonds. 20. Let copy of the first and last page of the order be handed over to the appointed amicus curiae in Criminal Appeal No. 249 of 1989 (DB) Mr. Neeraj Kumar @ Sanidh, who has assisted the court satisfactorily and he will get his prescribed fees through High Court Legal Services Committee, Patna. Appeals allowed.