PRABHAT KUMAR JHA, J.:–Both the appeals are directed against the judgment dated 08.06.2011 and order of sentence dated 10.06.2011 in Sessions Trial No. 664 of 2009, passed by learned Additional Sessions Judge, Fast Track Court No. II, Munger whereby and whereunder the appellants Navneet Kumar @ Chunnu and Amit Kumar have been convicted under Sections 302/149 of the Indian Penal Code. Both the appellants were sentenced to undergo R.I. for life, they have been directed to pay a fine of Rs. 10,000/- each and in default thereof to undergo R.I. for three months. The appellant Navneet Kumar @ Chunnu has further been directed to undergo R.I. for three months and to pay a fine of Rs. 1000/- for the offence punishable under Section 27 of the Arms Act and in default thereof to undergo R.I. for one month. 2. Prosecution case in short is that P.W. 12 Munna Saw has alleged in his fardbeyan that he has been dealing in scrap materials for last ten years and in course thereof, he became acquainted with Navneet Kumar @ Chunnu of Village Uttari Hajipur, P.S. Chitragupta Nagar, District –Khagaria. They used to lend and borrow money from each other. The informant gave Rs. 16,85,000/- to Navneet Kumar @ Chunnu in cash as well as through bank draft. Navneet Kumar @ Chunnu informed the informant P.W. 12, that he had paid Rs. 15,00,000/- to his brother Rajan Kumar but the same information was found to be false. Panchaiti was also held and Rajan Kumar the brother of the informant had gone to Khagaria for realization of money but Navneet Kumar @ Chunnu did not pay. Further case of the informant is that on 24.02.2009, Navneet Kumar @ Chunnu the appellant came to Munger and rang Rajan Kumar on his mobile. He asked Rajan Kumar to come to Purab Sarai railway crossing. The informant and his brother went near the railway crossing on motorcycle and saw Navneet Kumar @ Chunnu was standing there along with seven persons near a Bolero Jeep. As soon as the informant and his brother approach near the Bolero Jeep, Navneet Kumar @ Chunnu started firing with his pistol causing injury on the head of Rajan Kumar who fell down and died. The informant identified one Amit Kumar, brother-in-law of Navneet Kumar @ Chunnu among the persons assembled there. As soon as the informant and his brother approach near the Bolero Jeep, Navneet Kumar @ Chunnu started firing with his pistol causing injury on the head of Rajan Kumar who fell down and died. The informant identified one Amit Kumar, brother-in-law of Navneet Kumar @ Chunnu among the persons assembled there. The accused persons assaulted the informant and his brother with butt of pistol on the head and face. One fruit seller also received firearm injury on account of indiscriminate firing made by the accused persons. The informant and his brother were brought to hospital. The police came, thereafter, the accused persons fled away. It is further stated that the accused persons fled away after snatching Rs. 10,000/- and two mobiles from the possession of the informant. The informant further disclosed that Rajesh Sahni, Binod Sahni, Sarwan Manjhi and Kali Manjhi saw the occurrence. 3. On the basis of the fardbeyan of the informant P.W. 12 Kotwali P.S. Case No. 67 of 2009 was registered under Section 302 and other Sections of the Indian Penal Code and Section 27 of the Arms Act. The police took up investigation and seized one empty cartridge and Bolero Jeep bearing Registration No. BR045-3986 from the place of occurrence, prepared inquest report (Ext. 3), obtained post-mortem report (Ext. 4), thereafter, submitted charge sheet. 4. Accused Amit Kumar has been charged under Section 302/149 and 307/149 of the Indian Penal Code whereas accused Navneet Kumar @ Chunnu has been charged under Section 302 of the Indian Penal Code and Section 27 of the Arms Act. 5. Prosecution examined as many as 15 witnesses out of whom P.W. 1 Sabbal Kumar Bajaj is a seizure list witness of empty cartridge and the vehicle. He identified his signature on the seizure list marked as Ext. 1 and 1/1. P.W. 2 is Niranjan Kumar. P.W. 3 is Chandan Kumar Sahay. He is also a seizure list witness of empty cartridge and the Bolero jeep and his signature on the seizure list has been marked as Ext. 1/b and 1/c respectively. P.W. 4 Gangesh Chandra Jha is also a seizure list witness of magazine of the pistol and his signature is marked as Ext. 1/d. P.W. 5 is Uday Poddar is a witness of the inquest report Ext. 2. 1/b and 1/c respectively. P.W. 4 Gangesh Chandra Jha is also a seizure list witness of magazine of the pistol and his signature is marked as Ext. 1/d. P.W. 5 is Uday Poddar is a witness of the inquest report Ext. 2. P.W. 6 is Shiv Paswan, he is also a witness of the inquest report and his signature is marked as Ext. 2/1. P.W. 7 is Natho Sah, he claimed himself to be an eye witness of the occurrence and disclosed that one fruit seller was injured in the firing. P.W. 8 is Dr. Chandra Shekhar Mahto who examined Munna Gupta on 24.02.2009. On the same date, he also examined Navneet Kumar @ Chunnu and issued injury reports which are marked as Ext. 3 and Ext. A respectively. P.W. 9 is Kapil Kumar, he is also an eye witness of the occurrence. P.W. 10 is Dr. Anil Kumar Singh who held post-mortem on the body of Rajan Kumar and the post-mortem report is Ext. 4. P.W. 11 Ram Chandra Mishra is a constable of Kotwali police station who searched appellant Navneet Kumar @ Chunnu on the date of occurrence and recovered pistol from is possession which is marked as Ext. 1/e. P.W. 12 Munna Sah is the informant of the case and brother of the deceased. P.W. 13 Manvendra Kumar has investigated the case. P.W. 14 Kapildeo Sah is also a witness of the occurrence. P.W. 15 Dinesh Singh is a formal witness who identified the formal FIR of Kotwali P.S. Case No. 68 of 2009 which is marked as Ext. 11. 6. The defence also examined six witnesses namely D.W. 1 Chandan Kumar, D.W. 2 Mahender Kumar, D.W. 3 Raj Kumar Singh, D.W. 4 Chandan Kumar, D.W. 5 Arun Kumar and D.W. 6 Sukhdeo Mahto. 7. The defence also brought on record Kotwali P.S. Case No. 68 of 2009 which was registered on the basis of fardbeyan of Navneet Kumar @ Chunnu in which accused has stated that a firing was made and he was assaulted by the informant of the present case Munna Sah and others and the licensee revolver was also snatched. 8. The trial court after sifting the evidence found and hold both the appellants guilty under Section 302 read with 149 of the Indian Penal Code and further held the appellant Navneet Kumar @ Chunnu guilty under Section 27 of the Arms Act. 9. 8. The trial court after sifting the evidence found and hold both the appellants guilty under Section 302 read with 149 of the Indian Penal Code and further held the appellant Navneet Kumar @ Chunnu guilty under Section 27 of the Arms Act. 9. Learned counsel for the appellants has submitted that out of 15 witnesses, the prosecution case rests on the evidence of P.W. 12 Munna Sah and P.W. 14 Kapildeo Sah who is a chance witness. P.W. 12 has said in his first version that appellant Navneet Kumar @ Chunnu opened fire which hit on the head of his brother and his brother fell down on the ground and died. A fruit vendor was also injured in the firing. P.W. 12 has further stated in his fardbeyan that thereafter, the accused persons assaulted his brother Rajan Kumar – the deceased, and him with butt of a pistol on head and face. During course of evidence, P.W. 12 has given go-bye to his earlier statement and disclosed that firing did not hit his brother Rajan Kumar, the deceased and the accused persons assaulted his brother and him with butt of pistol on head and face. P.W. 14 who is a chance witness has given a different story and disclosed that while he was purchasing vegetables near the place of occurrence, he saw Munna Sah and Rajan Kumr came on a motorcycle and firing was made. Rajan Kumar bowed his head and Navneet Kumar @ Chunnu started assaulting him with the butt of pistol on his head and face. Rajan Kumar, brother of the informant died on the spot. The informant P.W. 12 Munna Sah was weeping. After 10 minutes, police came there. This witness did not disclose that Munna Sah the informant was also assaulted. 10. Learned counsel for the appellants has further submitted that when there is a conflict between the oral testimony and medical evidence and there is total absence of injuries caused by a particular weapon said to have been used, the ocular version is not trustworthy of reliance. Learned counsel for the appellant placed his reliance on a judgment of the Supreme Court reported in (2003) 6 Supreme Court Cases 380 Thaman Kumar Vs. State of Union Territory of Chandigarh. Learned counsel for the appellant placed his reliance on a judgment of the Supreme Court reported in (2003) 6 Supreme Court Cases 380 Thaman Kumar Vs. State of Union Territory of Chandigarh. There is another version of the story that a firing was made and thereafter the villagers started pelting stones in which Rajan Kumar sustained injuries and died. The prosecution has miserably failed to prove the charge against the appellants. 11. On the other hand, learned counsel for the informant has submitted that of course there is a minor contradiction in the evidence of the informant with regard to the injuries sustained by the deceased but from perusal of Ext. 11, the First Information Report lodged by the appellant Navneet Kumar @ Chunnu, the place of occurrence is admitted. Magazine and pistols containing live cartridges was recovered from the possession of the appellants. 12. Out of 15 witnesses examined by the prosecution, it appears that the prosecution case rests on the evidence of P.W. 12, the informant Munna Sah and P.W. 14 Kapildeo Sah who is a chance witness. 13. P.W. 1 to 7 and 9 are the witnesses of the vicinity but they have given a different story about the manner of occurrence. Firstly, we discussed the evidence of P.W. 12 who has said in his fardbeyan that when he along with his brother Rajan Kumar went near the Purabi Sarai railway crossing on being called by the appellant Navneet Kumar @ Chunnu, he saw that Navneet Kumar @ Chunnu and seven other accused persons were standing there. P.W. 12 and his brother were on motorcycle and as soon as they reached near the jeep of Navneet Kumar @ Chunnu, he fired which hit on the head of Rajan Kumar. Rajan Kumar instantaneously fell down on the ground and died. P.W. 12, however, stated that Navneet Kumar @ Chunnu and his brother-in-law Amit Kumar and others having armed with pistol assaulted him and his brother with butt of pistol on his head and mouth, but on perusal of the evidence of P.W. 12, it appears that he disclosed that when he and his brother reached near the vehicle of Navneet Kumar @ Chunnu, Navneet Kumar @ Chunnu fired but his brother saved himself and the same bullet hit the fruit vendor. Navneet Kumar @ Chunnu assaulted Rajan Kumar with butt of pistol on head and face and when he went to save his brother he was also assaulted with the butt of pistol. The accused persons killed his brother by assaulting him with butt of pistol. It appears that the informant completely shifted from his earlier statement made before the police and narrated a different story in consonance with the injuries found in the post-mortem report as the doctor P.W. 10, who found only lacerated wound on the head scapula region of the deceased Rajan Kumar. The injury was caused by hard and blunt object. P.W. 14 Kapildeo Sah is another eye witness has stated a different story that when he was purchasing vegetables, he saw that the accused Navneet Kumar @ Chunnu assaulting Rajan Kumar with butt of pistol on back of head and face and he also assaulted the informant P.W. 12 Munna Sah. Whereas P.W. 12 has disclosed that Navneet Kumar @ Chunnu, his brother-in-law Amit Kumar and other accused persons assaulted him and his brother with butt of pistol and his brother fell down on being hit by firing in his head. P.W. 7 Natho Sah has disclosed that two vehicles came near his shop and some people got down from the vehicle. There was a firing and in the said firing one fruit vendor was injured. The people of the vicinity on being infuriated by such firing started pelting stones on the criminals who fled away towards railway line near reservation counter and later on he heard that one person was killed. P.W. 9 Kapil Kumar is maternal uncle of Vikash Kumar who received firearm injury in the firing made by the persons who came on vehicle. He disclosed that two vehicle came while he was on his fruit shop situated near railway gumti /crossing. The occupants of the vehicle started firing in which Vikash Kumar got injuries and he brought his nephew to hospital where he was referred to P.M.C.H. He further disclosed that since his nephew received firearm injury the villagers became infuriated and they started pelting stones. The criminals fled towards railway line and he came to know that on account of assault made by public one person was killed. 14. The criminals fled towards railway line and he came to know that on account of assault made by public one person was killed. 14. In case of Thaman Kumar (supra) the Supreme Court in para-16 has held that – The conflict between oral testimony and medical evidence can be of varied dimensions and shapes. There may be a case where there is total absence of injuries which are normally caused by a particular weapon. There is another category where though the injuries found on the victim are of the type which are possible by the weapon of assault, but the size and dimension of the injuries do not exactly tally with the size and dimension of the weapon. The third category can be where the injuries found on the victim are such which are normally caused by the weapon of assault but they are not found on that portion of the body where they are deposed to have been caused by the eyewitnesses. The same kind of inference cannot be drawn in the three categories of apparent conflict in oral and medical evidence enumerated above. In the first category it may legitimately be inferred that the oral evidence regarding assault having been made from a particular weapon is not truthful. However, in the second and third categories no such inference can straight away be drawn. The manner and method of assault, the position of the victim, the resistance offered by him, the opportunity available to the witnesses to see the occurrence like their distance, presence of light and many other similar factors will have to be taken into consideration in judging the reliability of ocular testimony.” 15. From sifting of evidence of P.W. 12, the most important witness of the case as he himself claimed to be present on the place of occurrence, it is crystal clear that he firstly disclosed that Navneet Kumar @ Chunnu fired which hit on the head of his brother Rajan Kumar. Rajan Kumar fell down on the ground and died on the spot. But, later on, he disclosed that his brother was dragged near the reservation counter after being assaulted by the accused persons with the butt of pistol and on account of such injuries, his brother succumbed. Rajan Kumar fell down on the ground and died on the spot. But, later on, he disclosed that his brother was dragged near the reservation counter after being assaulted by the accused persons with the butt of pistol and on account of such injuries, his brother succumbed. There appears that this witness has made shifting evidence after perusal of the post-mortem report or after seeing the dead body of his brother deceased Rajan Kumar that his brother did not receive firearm injury and he was assaulted with butt of pistol. P.Ws. 1 to 7 and 9, who were in the vicinity of the place of occurrence, disclosed that when firing was made from the two sides only a fruit vendor Vikash Kumar received firearm injuries and thereafter people of the vicinity became infuriated and started pelting stones. Later on, they came to know that one person on account of such pelting of stones was killed. Whereas P.W. 14 who is a chance witness did not disclose about the incident of firing and thus it appears that there is a vital contradictions in the evidence of the prosecution witnesses as well as ocular evidence of the prosecution with the medical evidence and on such contradiction the prosecution evidence can be held to be not truthful and trustworthy. Prosecution has to stand on its own leg. Merely because the accused has also filed First Information Report stating about the occurrence, although in different manner, but on the same place, the prosecution story cannot be believed unless it is proved beyond all reasonable doubt. On such contradictory evidence, we have no hesitation to hold that the prosecution has failed to prove the manner of occurrence in which Rajan Kumar, the deceased sustained injuries and died and the accused persons are entitled to be acquitted. 16. Having considered the facts and discussion aforesaid, we find that the judgment of conviction and order of sentence is not sustainable on facts as well as in law. 17. In the result, both the criminal appeals are allowed. The judgment and order of conviction and sentence are set aside. 18. The appellant Navneet Kumar @ Chunnu is in jail, he is directed to be released forthwith, if not wanted in any other case and the appellant Amit Kumar who is on bail he is directed to be discharged from liability of his bail bonds. V.N. SINHA, J.:–I agree. The judgment and order of conviction and sentence are set aside. 18. The appellant Navneet Kumar @ Chunnu is in jail, he is directed to be released forthwith, if not wanted in any other case and the appellant Amit Kumar who is on bail he is directed to be discharged from liability of his bail bonds. V.N. SINHA, J.:–I agree. ?