NAVANITI PRASAD SINGH, J.:–This appeal against the conviction and sentence in respect of offence under sections 302/149 of the Indian Penal Code (for short `I.P.C.’) was preferred by four appellants, by which they were sentenced to undergo rigorous imprisonment for life. Appellant no.1 Ram Krishna Singh is reported to have died during the pendency of the appeal and, accordingly, the appeal in relation to appellant no.1 Ram Krishna Singh stands abated. The remaining three appellants (for convenience `the appellants’) are all brothers and, admittedly, not the direct assailants. 2. The prosecution case is based upon the fardbeyan of Ram Sujan Singh (P.W.6) as recorded at about 9 pm on 09.02.1984 at the Sadar Hospital, Begusrai, inter-alia, alleging that the informant Ram Sujan Singh and his brother Ajay Kumar Singh (the deceased) were returning to their village Babhangama from Begusarai, where they had gone in respect of purchasing some fertilizer. When they reached the Tea Stall of Bishwanath Jha (not examined), they found Atma Ram Singh (P.W.1), Shashi Kant Singh (P.W.2), Bachcha Singh (P.W.4) and Arun Kumar Jha (not examined) having tea. They asked the two brothers i.e. informant and the deceased also to sit down and have tea, whereupon they sat down. Ajay Kumar Singh started reading newspaper and the informant was sitting across on a bench. Suddenly from the back, the four appellants and one another Ajay Kumar Singh along with two other unknown persons came, all armed with pistols, and surrounded informant’s brother Ajay Kumar Singh. It is then said that the deceased appellant Ram Krishna Singh and appellant Rama Kant Singh gave orders to shoot Ajay Kumar Singh (informant’s brother), upon which appellant Surendra Singh and two other unknown persons, caught hold of Ajay Kumar Singh and appellant Sachidanand Singh and another Ajay Kumar Singh fired at the informant’s brother, who received injury on his back and fell down. Seeing this, the informant and other ran away. The informant came to his village and then with P.W.5 Uday Kumar Singh and others he returned to the Tea Stall and found his brother Ajay Kumar Singh lying on the ground severely bleeding. He was then carried on a rickshaw to Begusarai Sadar Hospital, where he was declared dead. Seeing this, the informant and other ran away. The informant came to his village and then with P.W.5 Uday Kumar Singh and others he returned to the Tea Stall and found his brother Ajay Kumar Singh lying on the ground severely bleeding. He was then carried on a rickshaw to Begusarai Sadar Hospital, where he was declared dead. The motive or the reason behind this occurrence is said to be that the appellants wanted to purchase some land, but the deceased Ajay Kumar Singh purchased that land denying the appellants of the opportunity to purchase the same, which had enraged them and, therefore, the occurrence, as alleged, had taken place. This fardbeyan had been recorded at 9 pm on 09.02.1984 at Begusarai Sadar Hospital by A.S.I. of Begusarai P.S., but as the place of occurrence being Karichak Chowk near Babhangawan lay within Barauni P.S., the same was forwarded to Barauni P.S., where it was registered as an F.I.R. at 6 am on 10.02.1984 and one Isteuyak Ahmad (P.W.7) was entrusted investigation. At 7 am on 10.02.1984, the inquest was prepared at Begusarai Sadar Hospital by Begusarai Police (not by Barauni Police). 3. Upon investigation, the Police did not submit charge-sheet against the appellants, rather charge-sheet was submitted against one Ajay Kumar Singh and Md. Muzahir Mian. The Magistrate having perused case-diary differed from the charge-sheet and took cognizance against the four appellants as well as the two charge-sheeted persons for an offence under section 302/149 of the I.P.C. The matter was committed to the court of session. In the meantime, this Ajay Kumar Singh, against whom cognizance was taken, had been shot dead by one of the prosecution witnesses i.e. P.W.4 Bachcha Singh. So far as Md. Muzahir Mian is concerned, he was discharged as there was no material in the case-diary against him. That left the four appellants, who were then charged under sections 302/149 of the I.P.C. and having pleaded not guilty they were tried and convicted accordingly. As noted earlier, appellant Ram Krishna Singh has died during the pendency of this appeal. 4. Learned counsel for the appellants submits that if one looks closely to the sequence of events as emanating from the evidence of prosecution, there was a lot to explain. He states that the place of occurrence was Karichak Chowk near village Babhangawan, which is 18 kms. from Barauni P.S. and is about 5 kms. 4. Learned counsel for the appellants submits that if one looks closely to the sequence of events as emanating from the evidence of prosecution, there was a lot to explain. He states that the place of occurrence was Karichak Chowk near village Babhangawan, which is 18 kms. from Barauni P.S. and is about 5 kms. from Begusarai Sadar Hospital. The incident is said to have taken place at about 6.30 pm. The injured person was then carried on a rickshaw to Begusarai Sadar Hospital, where he is declared dead on arrival. The fardbeyan is recorded by A.S.I. of Begusarai P.S. at 9 pm on 09.02.1984 and sent to Barauni P.S. as the place of occurrence is thereunder. In the evidence of Investigating Officer Isteyak Ahmad (P.W.7), it is stated that in the night itself he recorded the further statement of the informant at Begusarai Sadar Hospital, but the fardbeyan was registered at Barauni P.S. at 6 am on 10.02.1984, after which the investigation was allotted to P.W.7. Then the inquest of the dead body, which was lying in the corridor of Begusarai Sadar Hospital since the night of 9th February, was prepared at 7am on 10th of February, 1984 not by the Investigating Officer or by any one from Barauni P.S. but by A.S.I. of Begusarai P.S. (Camp-Sadar Hospital). 5. Learned counsel for the appellants further submits and rightly so that the sequence of events does not fit in. The fardbeyan reaches Barauni P.S. at 6 in the morning on 10th February, 1984, but the Investigating Officer of Barauni P.S. already started investigation in the night having recorded the statement of informant at Begusarai Sadar Hospital itself. Even though dead body was lying there, he did not prepare any inquest report. He left it for the Begusarai A.S.I. to do the needful. He went to the place of occurrence in the night itself i.e. back to the village without preparing any inquest report. These are highly controversial events and there is no explanation or reconcilation by the prosecution in these regards. This creates a doubt about the genuineness of the prosecution story as a whole. 6. Next we may consider the evidence of the witnesses. We would first take up the fardbeyan, which is Ext. 3. These are highly controversial events and there is no explanation or reconcilation by the prosecution in these regards. This creates a doubt about the genuineness of the prosecution story as a whole. 6. Next we may consider the evidence of the witnesses. We would first take up the fardbeyan, which is Ext. 3. This is the first statement given by the informant Ram Sujan Singh (P.W.6) to the Police at Begusarai Sadar Hospital and recorded at 9 pm on 9th of February, 1984. Apart from other things, he states therein that appellant Surendra Singh and two others caught hold of the deceased Ajay Kumar Singh and appellant Sachidanand Singh and another Ajay Kumar Singh shot at him hitting on his back. Apart from this, it appears to be quite incongruous when we come to the post mortem report, which is Ext.1. There is a singular bullet wound having entry from the front of the chest through the lungs and exit point at the back. We then have the inquest report (Ext.5), which talks of a bullet like wound on the back of the dead body of deceased Ajay Kumar Singh and does not speak of any injury on the front of the chest. If the prosecution case is correct, then the witnesses had seen the occurrence from close vicinity. The injury does not substantiate the evidence. There is no other connecting wound. The entry point is in front of chest and there is an exit point on the back. This unexplained discrepancy, in our view, is suggestive that, in fact, no one had seen when deceased Ajay Kumar Singh was shot. They had seen the dead body with the wound on the back and that is what they stated in the fardbeyan making of a story implicating the appellants, otherwise, such fatal discrepancy could not have been there in the evidence. 7. It is after the post mortem report had come in the court that the witnesses started saying that the deceased was shot from the front. This is a material change in the stand as between the fardbeyan, the inquest report and the post-mortem report. This corroborates that no one had actually seen the occurrence. 7. It is after the post mortem report had come in the court that the witnesses started saying that the deceased was shot from the front. This is a material change in the stand as between the fardbeyan, the inquest report and the post-mortem report. This corroborates that no one had actually seen the occurrence. It fits in with the defence that the deceased Ajay Kumar Singh had criminal antecedent and might have been killed by some one else, but the appellants were implicated by the informant to settle score. 8. Another important issue is the motive. The prosecution has laid great stress upon motive. In the fardbeyan, the informant, who is brother of the deceased Ajay Kumar Singh, stated that his brother (the deceased) had purchased two and half bighas of land denying opportunity to the appellants to purchase that land and it was a revenge that the appellants were taking. The Investigating Officer, in his examination in court, clearly stated that inspite of demand of documents with regard to purchase of land to substantiate the motive, no paper/document was produced by the prosecution party. 9. When we come to the evidence, it transpires that one of the witnesses stated that two other brothers of the informant had purchased some land in another village prior to the alleged murder. When the informant was examined, he stated a different story. Then the prosecution brought in P.W.8 Md. Anwar to prove a different fact as regards transfer of land as between a lady and the informant, which fact the informant himself did not disclose. Thus even though the motive is not an ingredient of an offence, but when the prosecution takes a stand of there being a motive, it must prove the motive. Here, in our view, the prosecution, in order to strengthen its case, did mention motive, but failed to substantiate the same. 10. At this juncture itself we would like to notice that the defence has tried to establish that they are agnates. One of the witnesses i.e. P.W. 1 denies any knowledge in that regard. However, ultimately when we come to the evidence of the informant (P.W.6), where ancestry is somewhat mentioned, it is clear that the parties are agnates and the prosecution witnesses tried to suppress this fact. This conduct again creates serious doubt about the genuineness of the prosecution case. 11. However, ultimately when we come to the evidence of the informant (P.W.6), where ancestry is somewhat mentioned, it is clear that the parties are agnates and the prosecution witnesses tried to suppress this fact. This conduct again creates serious doubt about the genuineness of the prosecution case. 11. There is yet another aspect of the matter. There were three important independent witnesses, who are mentioned in the fardbeyan and were interrogated by the Police, but they were not brought in court to depose. They are the Tea Stall owner Bishwanath Jha, on whose Tea Stall this incident allegedly took place, Arun Kumar Jha and Jai Jai Ram Paswan, who were also at the spot and on whose rickshaw deceased Ajay Kumar Singh was taken to Begusarai Sadar Hospital. They were independent witnesses but had been held back by the prosecution. Instead co-villagers and agnates had been brought in as witnesses. In our view, this has caused serious prejudice to the defence case. No plausible explanation is given by the prosecution for their non-examination in court. 12. We may also notice that in course of investigation as has come from the evidence of the Investigating Officer, the name of one Md. Muzahid Mian had transpired as the culprit. He was arrested and charge-sheeted, but later on discharged at the stage of framing of the charge. The Police, upon investigation, did not file charge-sheet as against the four appellants. However, the Magistrate differed from the Police report and took cognizance of offences in respect of the four appellants as well. That is how they were tried and convicted despite not recommended for prosecution by the Police. 13. Considering all these aspects, in our view, the cumulative effect is that the prosecution has not been able to prove the guilt of the appellants beyond all reasonable doubts. Last but not the least, important questions have been left unanswered by the prosecution. In those circumstances, we are constrained to allow this appeal and set aside the judgment of conviction and order of sentence as passed by the trial court. The appellants are acquitted of the charges levelled against them and they are discharged from the liabilities of their bail bonds. ?