JUDGMENT : V.N. SINHA, J. Heard learned counsel for the appellants and the State. 2. Both these appeals arise out of judgment/order dated 19/ 20.02.2010, passed by Additional Sessions Judge, Fast Track Court-I, Sheikhpura, in Sessions Case No. 713/2008/ Trial No. 01/09 whereunder appellants in both the appeals have been convicted for the offences under Sections 302/34, 120-B/34 of the Penal Code and sentenced to suffer rigorous imprisonment for life as also to pay fine of Rs. 5,000/- and in default of payment of fine to suffer rigorous imprisonment for two years. Accused No. 1, appellant in Criminal Appeal (DB) No. 285 of 2010 has further been convicted for the offence under Section 27(1) of the Arms Act and directed to suffer rigorous imprisonment for three years as also to pay fine of Rs. 1,000/- and in default of payment of fine to suffer rigorous imprisonment for six months. All the sentences have, however, been directed to run concurrently. 3. Prosecution case, as set out in the fardbeyan of Rajiv Ranjan Kumar, son of Suraj Narayan Singh of Village Sirari, P.S. Sheikhpura, District Sheikhpura, recorded by Sri B.D. Tiwary of Sheikhpura Police Station on 06.11.2005 at 14.00 hours in the clinic of Dr. K. Purshotam, is that on 05.11.2003 around 9.00 A.M. informant along with Sanjay Singh left from Barbigha from his manure/ medicine shop to purchase seeds, reached near Jakhra Asthan, Sheikhpura wherefrom the two proceeded for Barbigha at 10.30 A.M. on the motorcycle of his maternal uncle bearing Registration No. BR52, 611 and reached Faridpur Crossing where Sanjay Singh asked the informant to visit Village Pinjri to meet his brother-in-law. Informant told Sanjay Singh that in village Pinjri sister of his enemy is married and his enemy also resides there. Sanjay Singh, however, assured the informant to take care of any adverse situation. On the persuasion of Sanjay Singh informant came to Village Pinjri around 11.30 A.M. at the house of brother-in-law of Sanjay Singh, was offered light refreshment which the informant refused, meanwhile, Sanjay Singh asked the informant to wait in the house of his brother-in-law and himself left saying that he is coming shortly. On the persuasion of Sanjay Singh informant came to Village Pinjri around 11.30 A.M. at the house of brother-in-law of Sanjay Singh, was offered light refreshment which the informant refused, meanwhile, Sanjay Singh asked the informant to wait in the house of his brother-in-law and himself left saying that he is coming shortly. After 15-20 minutes Sanjay Singh came along with the enemy of informant Chandramauli Singh, Shrawan Singh, both sons of Ramji Singh, residents of Village Sirari, P.S. + District Sheikhpura and two unknown, whom the informant knew from before but was not aware of their name and asked the informant that he will establish their friendship. Informant thereafter looked towards Chandramauli Singh, Shrawan Singh and said that he has no enmity, dispute with them. After about half an hour informant and Sanjay Singh sat on the motorcycle bearing Registration No. BR52, 611, Chandramauli Singh also sat on the motorcycle as a pillion. Shrawan Singh followed the motorcycle on foot. Motorcycle was being driven by the informant himself. After the motorcycle covered the distance of one bigha Chandramauli Singh asked the informant to stop the motorcycle, took out pistol from his waist, Sanjay Singh asked Chandramauli Singh as to what he is doing. Chandramauli Singh, however, forced the motorcycle to stop and both Chandramauli Singh and Sanjay Singh alighted therefrom. Shrawan Singh and 2-3 unknown armed with pistol were also present. Informant, however, kept sitting on the motorcycle holding its handle, meanwhile, Chandramauli Singh pointed his pistol beneath the chest of the informant and fired the shot with intention to kill him, others also resorted to firing. Informant leaving the motorcycle ran towards Village Pinjri and having reached the house of brother-in-law of Sanjay Singh fell down and became unconscious. Informant further stated in the fardbeyan that he is not aware as to what happened to him after he fell down and became unconscious. Informant in course of treatment on 06.11.2003 regained consciousness in the clinic of Dr. K. Purshotam. Informant also claimed in the fardbeyan that in order to give effect to the conspiracy Sanjay Singh took him to Village Pinjri because of previous enmity between him and Chandramauli Singh where Chandramauli Singh shot him after pointing his pistol beneath his chest and thereby he became badly injured. K. Purshotam. Informant also claimed in the fardbeyan that in order to give effect to the conspiracy Sanjay Singh took him to Village Pinjri because of previous enmity between him and Chandramauli Singh where Chandramauli Singh shot him after pointing his pistol beneath his chest and thereby he became badly injured. Informant recorded his fardbeyan in presence of his brother Bal Mukund Kumar (P.W. 2) and local Mukhiya Vijay Kumar (P.W. 1) and put his signature over the same after reading its contents and the contents were read over to him. The fardbeyan of informant has been recorded by Sri B.D. Tiwary of Shiekhpura Police Station in presence of brother of the informant Bal Mukund Kumar (P.W. 2) and local Mukhiya Vijay Kumar (P.W. 1), who also put their signature over the same. Sri B.D. Tiwary forwarded the farbeyan to the Officer-in-Charge, Barbigha Police Station for taking necessary action as place of occurrence was within his jurisdiction. Officer-in- Charge, Barbigha Police Station having received the fardbeyan registered Barbigha P.S. Case No. 309/03 dated 08.11.2003 for the offences under Sections 341, 307, 326/34 of the Penal Code, Section 27 of the Arms Act and entrusted its investigation to A.S.I. Narmadeshwar Sharma. From Column No. 15 of the formal First Information Report it appears that First Information Report and the fardbeyan were dispatched to the court on 09.11.2003. Formal First Information Report, however, was seen by Chief Judicial Magistrate, Sheikhpura on 10.11.2003. From the clinic of Dr. K. Purshotam injured informant was referred to Patna for better treatment and was admitted in Anupama Hospital, Khazanchi Road, Patna where he succumbed to the injuries on 20.11.2003. Inquest proceeding over the dead body of the informant was conducted by A.S.I. of Pirbahore Police Station on the same day at 11.30 A.M. in presence of the brother of the informant Bal Mukund Kumar (P.W. 2) and Manoranjan Kumar Singh (not examined). From Column No. 7 of the inquest report it appears that informant suffered death on account of fire-arm injury during treatment. Post mortem on the dead body of the informant was also conducted on 20.11.2003 at 01.15 P.M. by Dr. Arun Kumar Singh, Tutor, Department of Forensic Medicine, Patna Medical College, Patna. From the post mortem report it appears that informant died on account of infection, haemorrhage and shock due to fire-arm injury. Post mortem on the dead body of the informant was also conducted on 20.11.2003 at 01.15 P.M. by Dr. Arun Kumar Singh, Tutor, Department of Forensic Medicine, Patna Medical College, Patna. From the post mortem report it appears that informant died on account of infection, haemorrhage and shock due to fire-arm injury. After death of informant Section 302 of the Penal Code was also added in the prosecution case. In the light of the fardbeyan statement of the informant, statement of his brother Bal Mukund Kumar (P.W. 2) and other witnesses as also the contents of inquest, post mortem report Investigating Officer of the case found the case to be true against the accused persons and submitted charge-sheet. In the light of the charge-sheet cognizance was taken and after supply of police papers to the two accused persons case was committed to the Court of Sessions. Sessions Court framed charge under order dated 18.11.2008 to which the two accused persons pleaded not guilty and claimed to be tried. 4. In support of the charge prosecution examined as many as eight witnesses, namely, P.W. 1 Vijay Kumar, the local Mukhiya in whose presence informant recorded his fardbeyan in the clinic of Dr. K. Purshotam on 06.11.2003 which was noted down in a sheet of paper by Sri B.D. Tiwary of Sheikhpura Police Station. P.W. 2 Bal Mukund Kumar is the brother of the informant in whose presence informant recorded his fardbeyan on 06.11.2003. P.W. 3 Sunaina Devi, an Anganwari Sevika P.Ws. 4, 5, 6 Rameshwar Singh, Nawal Paswan, Manoj Kumar are the residents of Village Pinjri but their evidence is of no assistance to the prosecution as they have been declared hostile. P.W. 7 Dr. Arun Kumar Singh served as Tutor, Department of Forensic Medicine, Patna Medical College, Patna, who conducted post mortem over the dead body of the informant on 20.11.2003. P.W. 8 Ram Lakhan Pandit is the part Investigating Officer of the case and took steps for issue of warrant against the accused persons. 5. P.W. 7 Dr. Arun Kumar Singh served as Tutor, Department of Forensic Medicine, Patna Medical College, Patna, who conducted post mortem over the dead body of the informant on 20.11.2003. P.W. 8 Ram Lakhan Pandit is the part Investigating Officer of the case and took steps for issue of warrant against the accused persons. 5. Learned counsel for the appellants in both the appeals submitted that the conviction of the two appellants for killing the informant cannot be sustained as there is hardly any material on record to establish that it was the appellant Chandramauli Singh who shot the informant on the date, time and place of occurrence after pointing his pistol beneath the chest of the informant in the light of the fardbeyan statement of the informant, who subsequently left for heavenly abode on 20.11.2003 by treating the fardbeyan as his dying declaration. It is submitted that the dying declaration has been made by the informant in presence of the scribe A.S.I. B.D. Tiwary (not examined), brother of the informant Bal Mukund Kumar (P.W. 2) as also the local Mukhiya Vijay Kumar (P.W. 1) on 06.11.2003 at 14.00 hours after he regained consciousness while being treated in the clinic of Dr. K. Purshotam. It is submitted that from perusal of the fardbeyan, it will appear that pistol shot was inflicted on the person of the informant on 05.11.2003 around 12.30 P.M. whereafter informant on his own showing became unconscious, brought to the clinic of Dr. K. Purshotam in the evening of 05.11.2003 and in course of treatment regained consciousness on 06.11.2003 and made fardbeyan statement at 14.00 hours, but such statement of the informant does not inspire confidence as statement of events held out by his brother Bal Mukund Kumar (P.W. 2) in his examination-inchief itself categorically indicate that his brother regained consciousness after two days, which fact has also been corroborated by local Mukhiya Vijay Kumar (P.W. 1) in paragraphs 1, 15 of his evidence. It is submitted that in view of the clear evidence of P.Ws. 1, 2 that informant regained consciousness after 2-3 days of being shot or having lost consciousness the fardbeyan statement said to have been made by him on 06.11.2003 does not inspire confidence as by any estimate, as per the evidence of P.Ws. It is submitted that in view of the clear evidence of P.Ws. 1, 2 that informant regained consciousness after 2-3 days of being shot or having lost consciousness the fardbeyan statement said to have been made by him on 06.11.2003 does not inspire confidence as by any estimate, as per the evidence of P.Ws. 1, 2, informant (deceased) could have regained consciousness only on 08.011.2003 and not on 06.11.2003 as claimed by the prosecution in the fardbeyan. 6. Learned counsel for the appellants in the aforesaid background submitted that if the dying declaration of the informant is disbelieved then in the present case there is hardly any evidence on which the conviction can be maintained. It is submitted that it is one of those cases in which neither the scribe nor the Officer-in-Charge, who registered the case, nor the Investigating Officer, who initially conducted the investigation, has chosen to come forward to support the investigation. In such circumstances, conviction of the two appellants cannot be maintained. 7. Learned counsel for the State and the informant, on the other hand, supported the judgment but could not explain as to why the scribe, who noted down the fardbeyan statement of the informant, did not come forward to justify the fact that informant had regained consciousness on 06.11.2003 and it was he who made such statement. Dr. K. Purshotam, who treated the informant first and in whose clinic he regained consciousness to record his fardbeyan, also has not come forward to support the fact that in his clinic the informant had regained consciousness on 06.11.2003. 8. In the circumstances, there does not appear any material on the basis of which we can justify the so called dying declaration and that being so we have no option but to acquit the two appellants. Accordingly, the impugned judgment of conviction and order of sentence is set aside. The two appeals are allowed. Appellant Chandramauli Singh is in jail custody, is directed to be released forthwith if not wanted in any other case. Appellant Sanjay Singh is on bail, is discharged from the liability of his bail bonds. Appeals allowed.