NAVANITI PRASAD SINGH, J.:–The sole appellant, being aggrieved by the judgment of conviction and order of sentence dated 28.05.1992 and 29.05.1992 respectively passed in Sessions Trial No.79 of 1990 by the 1st Additional Sessions Judge, Gopalganj finding him guilty of offences punishable under Section 302 of the Indian Penal Code and 27 of the Arms Act and sentenced him rigorous imprisonment for life under Section 302 of the Indian Penal Code and five years under Section 27 of the Arms Act, who are to run concurrently, has filed this appeal. 2. The appellant was a Constable in Bihar Police and at the relevant time was posted at the Circle Office, Bijaipur in the District of Gopalganj as a Guard along with several other constables. He has been charged and held guilty of shooting dead two other constables being his colleagues at the guard house on 29.08.1989. He denies the allegation. 3. As noted in our earlier orders, ending with order dated 15.12.2014, having tried and failed to secure either the presence of the appellant or a counsel appointed by him to defend him, we had appointed Amicus Curiae to present his case. 4. Smt. Rina Sinha, Advocate amicus curiae has submitted that there is no legal evidence in the case as against the appellant to hold him guilty of murder beyond reasonable doubt. To the contrary, the prosecution case is full of doubts. On the other hand, Shri Ajay Mishra, learned Additional Public Prosecutor strongly submits that there is consistent oral evidence of singular participation of the appellant in the crime and that being so it is sufficient for his conviction. We have to decide upon the rival contentions. 5. The prosecution case is based upon the fard-e-beyan of constable Daulat Ram, PW 4. In fard-e-beyan, which was recorded by Randhir Kumar Ray, Assistant Sub-Inspector of Police, Vijaipur Police Station, PW 6, at 11.30 AM on 29.08.1989, it is stated that the statement is being made in presence of Kamal Deo Ram, PW 2 and Hira Lal Ram, PW 3, both of whom are also constables posted at the same place. 6. In fard-e-beyan, which was recorded by Randhir Kumar Ray, Assistant Sub-Inspector of Police, Vijaipur Police Station, PW 6, at 11.30 AM on 29.08.1989, it is stated that the statement is being made in presence of Kamal Deo Ram, PW 2 and Hira Lal Ram, PW 3, both of whom are also constables posted at the same place. 6. It is alleged that at about 10.40 AM, while the constables in the guard house were having their meals, he heard a shot fired from the back and found that the appellant was holding his rifle and in front of him, Ajit Kumar Singh, who was also having his meal, was lying on the ground shot. Lakshman Pal then loaded his rifle and fired again fatally injuring another constable Upendra Singh. When the informant and others questioned the appellant, he threatened them that they would also be shot and they should stay away. Fearing for life, all the other constables present there ran. The informant and the others came to the Vijaipur Police Station, which was about half a km away and lodged this First Information Report. Upon the fard-e-beyan, so recorded, the First Information Report was registered at 11.30 AM and Randhir Kumar Ray, PW 6, who recorded the fard-e-beyan, took up the investigation. 7. It may be noted that though the incident had taken place at about 10.30 AM, the fard-e-beyan was recoded at 11.30 AM. The First Information Report was registered at 11.30 AM. Though from the evidence of the Investigating Officer, PW 6, it appears, he immediately went to the place of occurrence, but the inquest is prepared at about 7-7.30 PM, after having arrested the appellant at about 6.30 PM from the place of occurrence itself. 8. We may note here that the prosecution has offered no explanation for this inordinate delay except that on that date there was a call for Bharat Bandh. At this juncture itself, we may also note that the Investigating Officer, PW 6, has admitted in his examination-in-chief itself that the appellant was arrested at about 6.30 PM, upon intervention by the Superintendent of Police, who persuaded him to surrender, but how all this happened, including the surrender and subsequent arrest of the appellant, which was, obviously, known to the Superintendent of Police, the Superintendent of Police has not been examined in the case and there is no explanation why. 9. 9. After the appellant was arrested and inquest prepared, the bodies were sent for postmortem. It appears that a third person had also got injured in the firing in the morning itself. He is Rajkishore Bhagat. He is examined by the Doctor at about 1.30 PM and a bullet is extracted from his thigh, which is given to the police and is sent for forensic examination. We will come to this at appropriate stage. 10. The police after investigating the case submitted charge-sheet against the appellant and accordingly, charges were framed under Section 302 of the Indian Penal Code and Section 27 of the Arms Act. Appellant, having pleaded no guilt, was tried and has been convicted. Hence, the appeal. 11. In order to establish the charge, prosecution has examined 14 witnesses. PW 1 is Anil Kumar Srivastava. He is a witness only to the formal First Information Report. PWs 2 and 3 are Kamal Deo Ram and Hira Lal Ram, both constables, and were mentioned in the First Information Report as having escaped from the place of occurrence and reached the Police Station along with the informant Daulat Ram, PW 4. Both these witnesses having stated in their examination-in-chief that they heard two shots being fired. They saw Ajit Kumar Singh and Upendra Singh lying dead. They were both declared hostile as they did not support the prosecution case of having seen the appellant shoot the two deceased. Upon cross-examination by the State, both of them admit that their statements have been recorded by the police. They deny that they had made any statement to the police stating that the deceased were drunkard or they were womanizer. 12. PW 4 is Daulat Ram, the informant, who is also a constable. In his examination-in-chief, he has supported the fard-e-beyan. He states having seen the appellant shot Upendra Singh. But so far as deceased Ajit Kumar Singh is concerned, all he states that he heard gun shot and found Ajit Kumar Singh lying dead. He categorically states that thereafter when he started running towards the Police Station, he heard two more shots fired. He did not know why this shot has taken place, but about 2-3 days earlier, there had been some dispute between Kamal Deo Ram, PW 2, and deceased Ajit Kumar Singh with regard to the food being prepared. He identifies the appellant in the dock. He did not know why this shot has taken place, but about 2-3 days earlier, there had been some dispute between Kamal Deo Ram, PW 2, and deceased Ajit Kumar Singh with regard to the food being prepared. He identifies the appellant in the dock. He admits in the cross-examination that one Minhazul Islam, who was the brother-in-law of one constable, Mukhtar Ahmad, had tried to catch hold of the appellant, but he was hit and pushed away. In the cross examination, he admits that he was at the hand pump washing his utensils having just finished his food, when he heard the gun shot. He states that his further statement was recorded by the Investigating Officer in the evening. He states that having rushed to the Thana in the morning, he returned to the place of occurrence only late in the evening. He denies the suggestion that the appellant had been falsely implicated. 13. We then have PW 5, Dr. Raghvendra Kumar Sinha. He was the Medical Officer In-charge of the State Dispensary at Vijaipur. He had been examined with regard to the injury caused to one independent witness Rajkishore Bhagat. It may be noted here that Rajkishore Bhagat was the solitary independent witness, who had been injured as well in the firing. PW 5, the Doctor, who examined him at about 1 PM, clearly states that there was a rifle bullet injury about 4”x ½” and 5” deep on the left thigh. The embedded bullet was recovered and handed over to the police. The injury report was Ext.-3. This Doctor had also examined Minhazul Islam, PW 8, who had received simple injury allegedly caused by the rifle butt of the appellant. The two injury reports were Ext.-3 and 3/1. Thus, Rajkishore Bhagat, being an independent witness, was not examined and the bullet recovered from his thigh was not sent for forensic examination. The report of the forensic examination was brought on record. We would refer to it at a later stage. 14. We then come to PW 6. He is the person, who recorded the fard-e-beyan at the very first instance. He states that after recording the fard-e-beyan, he informed the higher authorities and proceeded to the place of occurrence, but there he was confronted by the appellant, who was holding rifle in his hand and threatening everyone who dare to come close to the place of occurrence. He is the person, who recorded the fard-e-beyan at the very first instance. He states that after recording the fard-e-beyan, he informed the higher authorities and proceeded to the place of occurrence, but there he was confronted by the appellant, who was holding rifle in his hand and threatening everyone who dare to come close to the place of occurrence. In his cross-examination, he admits that he had reached the place of occurrence at about 11.55 AM. He states that after this point he had not investigated the matter as investigation was handed over to others. 15. We then have PW 7, Bharat Mishra, who is the Officer In-charge of the Vijaipur Police Station. He is the person, who has merely filed the charge-sheet and admits that he has not done any investigation, but the investigation was done by Sri Bishwanath Pathak, PW 11. 16. We then have PW 8. He is an important witness. He is the brother-in-law of Mukhtar Ahmad, the police jeep driver, who used to stay at Vijaipur Circle Office guard house along with the appellant and others. He states that while they were all having their lunch at about 10-10.30 AM, he heard the sound of gun shot and he found that deceased Ajit Kumar Singh was lying dead on the ground. He then heard another shot and found the deceased Upendra Singh lying dead on the ground. He then found that the appellant was reloading the rifle. He ran and tried to snatch the rifle. The appellant is alleged to have threatened this witness. In the struggle that followed, this witness was injured, which injury, as noted earlier, was examined by the PW 5, the Doctor. He later learnt that Ajit Kumar Singh and Upendra Singh had died. He states that Police Station is about half a km from the place of occurrence, i.e., the Vijaipur Circle guard house. He also, in his cross-examination, states that he had heard two shots being fired and then he ran and reached the Police Station. In the cross-examination, he admits that having reached the Police Station, he waited at the gate itself. He met the “Jamadar Saheb”, to whom he narrated the whole incident. He states that his statement was then recorded at 10.45 AM, which was read over to him as well. 17. In the cross-examination, he admits that having reached the Police Station, he waited at the gate itself. He met the “Jamadar Saheb”, to whom he narrated the whole incident. He states that his statement was then recorded at 10.45 AM, which was read over to him as well. 17. This is of some importance because this statement of PW 8, as recorded at 10.45 AM, would be the first statement with regard to the occurrence and hence the first information. Prosecution has neither given an explanation in that regard nor has produced this statement in the Court. He also denies that he is giving false evidence. 18. We then have PW 9, Ram Janam Ram, who is the Anchal Nazir. He also does not support the prosecution case and is declared hostile. He accepts in the cross-examination and states that he had given the statement to the police. He admits that he had made statement to the police that the appellant had fired six rounds and killed two constables. He further admits in the cross-examination by the defence that after hearing two rounds being fired, he had run away and he did not try to find out as to who had fired. 19. We then come to the PW 10, the Circle Officer. He states that on that day there was a call for Bharat Band and he was in a meeting with the District Collector at Gopalganj, where message was received with regard to this incident. He recalls having received the message there that it was Lakshman Pal who has shot two of his colleague constables. He admits that he has no personal knowledge with regard to the incident. As such, he is a hearsay witness. 20. We then come to PW 11, Bishwanath Pathak. He is the first Investigating Officer, who had substantially carried out the investigation. His evidence would be of some importance. The first thing he states is that pursuant to the fard-e-beyan, being registered as First Information Report, when he came to the place of occurrence, he took charge of investigation there. As noted earlier, the First Information Report was recorded by PW 6, Randhir Kumar Ray, and he had also come to the place of occurrence. This witness, PW 11, Bishwanath Pathak, had also come to the place of occurrence where he took charge of the investigation. As noted earlier, the First Information Report was recorded by PW 6, Randhir Kumar Ray, and he had also come to the place of occurrence. This witness, PW 11, Bishwanath Pathak, had also come to the place of occurrence where he took charge of the investigation. He states that when he reached the place of occurrence, in course of investigation, he found that in the room of the guard house, there was a bed (Chowki). There was blood lying there. There was blood on the bed and the floor. There was adjacent room also, where there was another bed. There also he found blood stains. On that bed also be found blood stains. There were pieces of flesh also there. There was a third room also, in which, there was a bed. He states that when he had gone to the place of occurrence he found the appellant roaming around with his rifle. This witness had learnt that it was the appellant, who had shot dead the two persons and the two dead bodies were also lying there. He then states in paragraph 4 of his deposition that it is at about 6.45 PM that the Superintendent of Police came and the appellant was persuaded to surrender. 21. He then states that when he had taken-up the investigation, he came to know that a person had been injured and had been taken to the hospital. The name of the injured was Rajkishore Bhagat. He, accordingly, went to the hospital where, the Doctor (PW 5), who drew-up the injury report of this injured person, gave this witness a sealed packet of a bullet, which was extracted from the injured person. He then comes back to the place of occurrence later in the evening at about 7 PM, prepares inquest and sends the two bodies for postmortem examination. As by then, the appellant is alleged to have surrendered and being arrested. Then he seizes various arms kept there being five rifles in all from different places. He picks-up blood samples with the soil. He then seizes the guard register and various utensils, which were found lying there. He then seizes six empty cartridges of 303 caliber rifle, which is Ext.5/4. In his cross-examination, he admits that some of the rifles, which he seized, were loaded. He picks-up blood samples with the soil. He then seizes the guard register and various utensils, which were found lying there. He then seizes six empty cartridges of 303 caliber rifle, which is Ext.5/4. In his cross-examination, he admits that some of the rifles, which he seized, were loaded. He then admits that he sent one rifle for forensic examination as well as six discharged cartridges found at the site. Forensic reports have been received. 22. To the question with regard to sending one rifle only for forensic examination, he replies that he had sent the rifle that was seized from the possession of the appellant, but he did not send other rifles for forensic examination. He then states that he had taken the statement of Minhazul Islam, who is PW 8. In the cross-examination, he admits that various seizures, he had made, were in between 7.45 PM to midnight. He admits that the inquest reports were prepared at 7-7.30 PM. He states that when the occurrence took-place, he was at Gopalganj and having received the information, he came straight to the place of occurrence and found the appellant roaming around the place with his loaded rifle. He admits that he arrested the appellant after the appellant was made to surrender. But he admits that before arresting the appellant, he had visited the hospital to see the injured person. This would be in the afternoon itself. This witness is then recalled and he identifies the rifle that was seized from the appellant being rifle with butt no.157. It is this rifle that was sent for forensic examination and, as per him, it was this rifle that was used to commit the two murders. 23. In paragraph 18, he states that he had seized seven cartridges from the place of occurrence and produces the seven cartridges as material Ext. II-II/6. It may be noted that the seizure with regard to the empty discharged cartridges is only in respect of six cartridges, from where these seven empty cartridges came is not explained. Similarly, he produces before the Court two bullet heads (chharra). They are marked as material Ext.-III and III/1 respectively. As he has seen earlier, it was only one bullet head that was extracted by the Doctor from the thigh of Rajkishore Bhagat and was handed over to the police. From where the second came is not known. Similarly, he produces before the Court two bullet heads (chharra). They are marked as material Ext.-III and III/1 respectively. As he has seen earlier, it was only one bullet head that was extracted by the Doctor from the thigh of Rajkishore Bhagat and was handed over to the police. From where the second came is not known. What is also not known is why this extra empty cartridge bullet was never sent for forensic examination. It is also not stated as to why all the rifles that were seized, six in number, were not sent for forensic examination. 24. Then we come to PW 12, Ali Hassan, who is the Officer In-charge of the Vijaipur Police Station. He has produced the material exhibits from the police Malkhana. He admits that all the material exhibits are duly recorded in the Malkhana register. 25. We then have PW 13, who conducted the two postmortem reports on the bodies of Ajit Kumar Singh and Upendra Singh, the two dead constables. He is of some importance. In his deposition before the Court, he has produced the two postmortem reports. He is questioned specifically about nature of wounds. He states that they are bullet injuries. But what is surprising is, when he is categorically asked with regard to the entry and exit wounds, he specifically and clearly states that except for one, there are no exit wounds. From this, it is clear that though there are entry wounds of rifle bullets, they are not shown to have exited the body. 26. Learned amicus curiae submits and rightly so that obviously then some of the bullets must be lodged in the body, but the Doctor and the postmortem report do not show that there is even a single bullet found in the body. The prosecution has failed to explain the situation. She submits that this shows that the prosecution has been manipulating the evidence. There being no exit would, the bullet was in the body, but has been suppressed. We will come to this later. 27. We then have PW 14, Sukhdeo Paswan. He has merely produced the duty register, which had been seized by the Investigating Officer. It has been produced to show that at the material time, it was Lakshman Pal, who was in duty. 28. We will come to this later. 27. We then have PW 14, Sukhdeo Paswan. He has merely produced the duty register, which had been seized by the Investigating Officer. It has been produced to show that at the material time, it was Lakshman Pal, who was in duty. 28. Learned Additional Public Prosecutor submits that even if we discard the hostile witnesses, we have the evidence of the informant, PW 4, Daulat Ram, the constable, and Minhazul Islam, the brother-in-law of the Jeep Driver, who is PW 8. Both these witnesses corroborate the facts that they had seen the appellant at least shoot one person, i.e., Upendra Singh, and that by itself is sufficient to uphold the conviction of the appellant. 29. On the other hand, learned amicus curiae submits that there are many questions, which have remained unanswered and if those are taken into account, then the very evidence of these two witnesses, i.e., PW 4 and PW 8 becomes suspect. 30. We shall now proceed to examine these aspects of the matter. The first thing we would like to notice is that all the witnesses, put together, only talk about three and at best four shots being fired. But what has been seized by the police was six empty discharged cartridges and what has been produced in the Court are seven empty discharged cartridges. From where this seventh came is not explained. If people had heard only 3-4 shots, where were the other shots fired. 31. Now, we may refer to the forensic reports with regard to the guns, the discharged cartridges and the bullet. The first startling fact is that Rajkishore Bhagat, the only independent witness, who was also grievously injured and rushed to the hospital and a bullet was extracted from his thigh. The forensic report in relation thereto is that it is the bullet shot from 303 bore rifle, but forensic examination further reveals and it has not been fired from the rifle of the appellant. Thus, it is clear that someone else was also firing. Then the forensic evidence is that six cartridges, submitted for examination, were discharged through the rifle of the appellant. But then when the Doctor admits that there are no wounds of exit found, where the bullets were lodged and where are those bullets. They have neither been recovered nor sent for forensic examination. 32. Then the forensic evidence is that six cartridges, submitted for examination, were discharged through the rifle of the appellant. But then when the Doctor admits that there are no wounds of exit found, where the bullets were lodged and where are those bullets. They have neither been recovered nor sent for forensic examination. 32. When we look further deeper in the evidence and found that the Investigating Officer admits that he had found blood stains on the floor and on the beds in two separate rooms as also flesh, the prosecution fails to explain how this has happened. Because this case is consistent that Ajit Kumar Singh and Upendra Singh were shot outside the rooms when they were having their meals that is where their bodies were found. If that be so, then how the blood stains and flesh found in the room and on the beds. Prosecution has failed to explain. This shows that the story set-up by the prosecution is not what actually happened. There was a lot more that happened, which either the prosecution is concealing or is unable to explain. 33. Then, as we have noticed earlier, the incident took place at about 10.30 AM. PW 8 states that within 5-10 minutes, he had reached the Police Station and his statement was recorded that is almost an hour before the fard-e-beyan, which is on the record. Where is that statement, has not been answered. Something is being sought to be concealed. 34. Further, the incident took place at about 10.30 AM. From 10.30 AM to about 6.30 PM, i.e., for over eight hours, the appellant is supposed to have been moving around the Vijaipur guard house itself, when the two dead bodies lying there and to the knowledge of everybody. But in those eight hours, no effort is made to disarm and arrest and everyone waits for the Superintendent of Police to come in the evening, who persuades him to surrender and then he is arrested. Surely, this is highly unbelievable, with no explanation from the prosecution. Then if were to believe this aspect of the involvement of the Superintendent of Police, then why has not the prosecution examined the Superintendent of Police. Surely, he would have been a very important witness. 35. Surely, this is highly unbelievable, with no explanation from the prosecution. Then if were to believe this aspect of the involvement of the Superintendent of Police, then why has not the prosecution examined the Superintendent of Police. Surely, he would have been a very important witness. 35. Thus, we have seen that two important witnesses, i.e., Rajkishore Bhagat, who had been grievously injured and the Superintendent of Police, not having been examined, serious prejudice has been caused to the defence, i.e., the appellant. All these are very important features. They clearly indicate that there are something more than which meets the eyes. Prosecution has consciously tried to conceal the true events, its manner of occurrence and has just tried to pin down the appellant. 36. In that view of the matter, we do not find it safe to rely on the evidence of PW 4 and PW 8, much less, for upholding the conviction of the appellant. We are firmly of the view that the prosecution has failed to prove the case beyond reasonable doubt. We are firmly of the view that there are serious doubts that have been raised and not resolved by the prosecution. 37. We, thus, have no alternative but to accept this appeal. Accordingly, this appeal is allowed and the judgment and order of conviction is set aside. The appellant is freed from his bail bonds. 38. In pursuance of the competent assistance given by Smt. Rina Sinha, learned amicus curiae and considering the fact that the matter, which was heard for almost three days, we direct the Patna High Court Legal Services Authority to pay the amicus curiae a sum of Rs.7,500/-.