JUDGMENT : V.N. SINHA, J. The appellants in the three Appeals have assailed the judgment of conviction and order of sentence dated 27.01.1993 passed in Sessions Trial No. 166 of 1992 disposed off by 2nd Additional Sessions Judge, Muzaffarpur in connection with Kudhani P.S. Case No. 30 of 1990 dated 13.03.1990 whereunder the five appellants have been convicted for the offence under Sections 302/149 of the Indian Penal Code except one appellant, namely, Vijay Chaudhary who has been convicted for offence under Section 302 of the I.P.C. simpliciter. All the appellants however have been sentenced to suffer rigorous imprisonment for life. 2. The prosecution case as set out in the aforesaid Kudhani P.S. Case is that fardbeyan of P.W.-1 Sachidanand Chaudhary, resident of Kharauna was recorded by Sub-Inspector, R. Ahmad of Brahmpur police station, Muzaffarpur in the clinic of doctor R. B. Sinha at Juran Chapra, Muzaffarpur on 13.03.1990 at 5:00 A.M. stating that yesterday i.e. 12.03.1990 in the evening he (informant) along with Ashok Chaudhary (deceased), P.W.-14 Rajan Kumar, P.W.-10 Laddu Chaudhary and P.W.6 Binod Chaudhary, all resident of Village Kharauna Dih, P.S. Kudhani, District Muzaffarpur were proceeding to play Holi near the village temple. In the way informant and his companions noticed the appellants Vijay Chaudhary, Saroj Thakur, Ram Adhar Chaudhary, Arbind Chaudhary and Narayan Thakur near the house of Mahendra Chaudhary. They all surrounded Ashok Chaudhary, and Saroj Thakur exhorted that enemy has come and should be shot whereafter the appellants Ramadhar Chaudhary, Arbind Chaudhary, Narain Thakur and Saroj Thakur caught hold Ashok Chaudhary and Vijay Chaudhary shot him in the left side of his belly from countrymade pistol. The injured fell down and the accused persons ran away. The informant further stated in the fardbeyan that the eye witnesses of the occurrence are also P.W.-4 Satyendra Chaudhary, P.W.-9 Rajendra Chaudhary and P.W.-16 Baijnath Chaudhary and others. The injured Ashok Chaudhary was carried on the motorcycle to the clinic of doctor R. B. Sinha and admitted there. The injured succumbed to the injuries in the clinic in the night at 3:25 A.M. In the concluding portion of the fardbeyan, the informant claimed that Vijay Chaudhary shot dead Ashok Chaudhary with his countrymade pistol as there was previous enmity between them which persuaded him to commit the present atrocity. The injured succumbed to the injuries in the clinic in the night at 3:25 A.M. In the concluding portion of the fardbeyan, the informant claimed that Vijay Chaudhary shot dead Ashok Chaudhary with his countrymade pistol as there was previous enmity between them which persuaded him to commit the present atrocity. The informant having read over and heard the contents of the fardbeyan and having found the same to be true, put his signature. The Sub-Inspector, R. Ahmad having scribed the fardbeyan forwarded the same to the Officer-in-Charge Kudhani P.S. for necessary action as the place of occurrence fell within his jurisdiction. In the light of the aforesaid fardbeyan, the Officer-in-Charge of Kudhani P.S. registered Kudhani P.S. Case No. 30 of 1990 dated 13.03.1990 for the offence under Sections 302/34 of the I.P.C. and 27 of the Arms Act against Vijay Chaudhary and four other appellants on 13.03.1990 itself at 1:00 P.M. and sent the F.I.R. to the Court of S.D.J.M., Muzaffarpur through special messenger but the same was received in the Court of S.D.J.M., In-charge on 15.03.1990. As directed Sub-Inspector, Mohan Lal, In-charge Turki Out Post proceeded to investigate the case and collected the inquest report prepared by Mr. R. Ahmad, Sub-Inspector of Brahampur Police Station on 13.03.1990 at 4:30 A.M. He also examined the F.I.R. witnesses, collected postmortem report and having found the allegations set out in the F.I.R. to be true submitted chargesheet against the appellants. In the light of the chargesheet, cognizance was taken and, after supply of police papers, case was committed to the court of sessions. The Sessions Court framed charges under order dated 25.08.1992 against the appellant Vijay Chaudhary for the offence under Sections 302 of the I.P.C., 27 of the Arms Act, against others for the offence under Sections 302/149 of the I.P.C. to which the appellants pleaded not guilty and claimed to be tried. 3. In support of the charge, prosecution examined as many as 18 witnesses. P.W.-1 Sachidanand Chaudhary is the informant, P.W.-2 Raj Kishore Chaudhary is the inquest report witness, P.W.-15 Sarvesh Kumar is the seizure list witness, P.W.-3 Savita Devi is an eye witness of the occurrence but has not supported the complicity of the appellants. 3. In support of the charge, prosecution examined as many as 18 witnesses. P.W.-1 Sachidanand Chaudhary is the informant, P.W.-2 Raj Kishore Chaudhary is the inquest report witness, P.W.-15 Sarvesh Kumar is the seizure list witness, P.W.-3 Savita Devi is an eye witness of the occurrence but has not supported the complicity of the appellants. P.W.-4 Satyendra Chaudhary, P.W.-6 Binod Chaudhary, P.W.-9 Rajendra Chaudhary, P.W.-10 Laddu Chaudhary and P.W.-14 Rajan Kumar, all are eye witnesses of the occurrence named in the F.I.R. but did not support the occurrence in court and have been declared hostile. P.W.-5 Mahendra Chaudhary, P.W.-7 Janki Devi, P.W.-8 Yogendra Chaudhary and P.W.-11 Ramlal Chaudhary have been tendered. P.W.-16 Baijnath Prasad Chaudhary is eye witness of the occurrence, named in the fardbeyan and deposing in court, he has supported the occurrence. P.W.-17 Paras Nath Chaudhary is the father of the deceased. He has not only supported the occurrence as an eye witness but has also deposed that his son made an oral dying-declaration before him. P.W. 12 Dr. Mumtaz Ahmad has stated in his evidence that on 18.03.1990 around noon he conducted postmortem examination on the dead body of deceased Ashok Chaudhary and found the following injuries: (i) 21 stitches linear wound 9” in length was found 1/2" left to umbilicus. The wound was found over 5.5” below the epigastric region (ii) The wound of entry - an oval wound 1/6” in diameter was found on the left lateral margin of abdomen 3” above the left anterior superior iliac spine. The margin was irregular and edge was inverted. The black charred area of skin 5” in diameter was found all round this wound. (iii) The wound of exit - one wound 1”x 1” with ragged and averted margin was found on the abdomen 2” left to the umbilicus and 12” below the left nipple. The peritoneum and intestine was found protruding out from the wound. (iv) On opening the abdomen-stitches were found in three different places in the intestine. The projectile after entering through entry wound and lacerating the peritoneum and intestine has passed away through exit wound. The doctor further opined that the cause of death was shock and haemorrhage on account of the aforesaid injury. He further opined that injury no. 1 might be due to surgical interference and injury no. 3 might be given by operating surgeon. Injuries no. The doctor further opined that the cause of death was shock and haemorrhage on account of the aforesaid injury. He further opined that injury no. 1 might be due to surgical interference and injury no. 3 might be given by operating surgeon. Injuries no. 2 and 3 have been caused by some firearm weapon. P.W.-18 Mohan Lal is the Sub-Inspector, In-Charge of Turki Out Post who investigated the case. 4. In the light of the description of the witnesses in paragraph just above, we are required to appraise the evidence of P.W.-16 Baijnath Prasad Chaudhary, the witness of the occurrence named in the fardbeyan, P.W.-17 Paras Nath Chaudhary, the father of the deceased who not only claimed to be an eye witness of the occurrence but also deposed that the deceased made his oral dying-declaration before him. P.W.-18 Mohal Lal, the investigating officer who having conducted investigation submitted chargesheet. P.W.-16 Baijnath Prasad Chaudhary has stated that the occurrence took place on 12.03.1990 in the evening at 6:30 P.M. when he along with P.W.-4 Satyendra Chaudhary and P.W.-9 Rajendra Chaudhary were returning through the village road after having watched Holi and had come near the temple, saw near the house of Mahendra Chaudhary that appellants Vijay Chaudhary, Saroj Thakur, Ram Adhar Chaudhary, Arbind Chaudhary coming out of the house of P.W.-5 Mahendra Chaudhary and surrounding the deceased Ashok Chaudhary, Saroj Thakur exhorted, whereafter, Ram Adhar Chaudhary, Arbind Chaudhary and others caught/apprehended Ashok Chaudhary, and Vijay Chaudhary shot Ashok Chaudhary in his belly from a close range. The bullet came out from the right side and injured fell down. In paragraph 2, P.W.-16 deposed that there was enmity between Vijay Chaudhary and Ashok Chaudhary from before as litigation was pending between them and father of Vijay Chaudhary namely, Braj Nandan Chaudhary has filed a case against Ashok Chaudhary and others. After the occurrence, villagers including P.W.-1 Sachidanand Chaudhary, P.W.-10 Laddu Chaudhary, P.W.14 Rajan Kumar, P.W.-16 Baijnath Prasad Chaudhary also came running to the place of occurrence whereafter Ashok Chaudhary was taken to the doctor’s clinic at Juran Chapra, Muzaffarpur. The witnesses also accompanied the injured. In paragraph-5, P.W.-16 Baijnath Prasad Chaudahry admitted that he is an accused along with father of the deceased P.W.-17 Paras Nath Chaudhary in one case in which final form has been submitted. 5. The witnesses also accompanied the injured. In paragraph-5, P.W.-16 Baijnath Prasad Chaudahry admitted that he is an accused along with father of the deceased P.W.-17 Paras Nath Chaudhary in one case in which final form has been submitted. 5. With reference to the evidence of P.W.-16, learned counsel for the appellants submitted that P.W.-16 is neither an eye witness of the occurrence nor reliable as the version which he has deposed in court that he saw the appellants surrounding the deceased whereafter on the orders of the appellant Saroj Thakur, Vijay Chaudhary shot the deceased in belly was not stated by the witness P.W.-16 in his police statement. In this connection, learned counsel for the appellants referred to the evidence of P.W.-16 Baijnath Prasad Chaudhary in paragraph-17 wherefrom it appears that P.W.-16 has stated in court that he did state before the police that he had seen Vijay Chaudhary firing shot on the person of Ashok Chaudhary and denied the suggestion made to the contrary by the cross-examiner. Having referred to the aforesaid evidence of P.W.-16, learned counsel has also referred to the evidence of P.W.-18, the Investigating Officer in paragraph -16 where the Investigating Officer has categorically stated that P.W. 16 Baijnath Prasad Chaudhary did not state before him that Vijay Chaudhary had shot Ashok Chaudhary from close range. In the same paragraph, the I.O. further stated that P.W.-16 had not said before him that he had seen the occurrence from his own eyes that Vijay Chaudhary shot Ashok Chaudhary but had sated before him that he heard after the occurrence that Saroj Thakur called out that enemy has been caught and should be shot whereafter Vijay Chaudhary shot the deceased with countrymade pistol on the left side and bullet came out from right side of his belly. 6. P.W.-17 Paras Nath Chaudhary, the father of the deceased is also not an eye witness of the occurrence as from paragraph-1 of his deposition itself it would appear that on the date and time of occurrence he was at the house of Parmanand Chaudhary where villagers were singing Holi songs and the witness was sitting along with Kameshwar Chaudhary, Baijnath Pathak, Satyanarain Chaudhary, Shivshankar Chaudhary, Bhushan Chaudhary, Sachidanand Chaudhary when they heard sound of gunshot in the west and after 2-3 minutes, a boy namely, Rajesh called out that brother Ashok has been killed. Having heard the alarm, P.W.-17 Paras Nath Chaudhary ran towards the house of P.W.-5 Mahendra Chaudhary and saw his son (deceased) fallen on the ground whereafter P.W.-17 took him to the village doctor and while injured was being taken to the village doctor, the injured informed his father, P.W. 17 that “Vijaiya” shot him in presence of P.W.-6 Binod Chaudhary and P.W.-16 Baijnath Prasad Chaudhary as both were standing there. In paragraph-3, P.W. -17 has stated that later his son was taken to Muzaffarpur on “Rajdoot” motorcycle by P.W.-16 Baijnath Prasad Chaudhary along with Rajendra Chaudhary. It would appear from the aforesaid evidence of P.W.-17 that he himself is not an eye witness but deposed that his son made an oral dying-declaration to him while being taken to the village doctor. In this connection, learned counsel referred to the evidence of P.W. -18, the Investigating Officer in paragraphs 17 and 19. Perusal of paragraph-17 of the evidence of P.W.- 18, indicates that in the said paragraph, the Investigating Officer has categorically stated that P.W. 17 never stated before him “babu Vijaiya goli mar delak” but only stated “babu Vijaiya”. In this connection, learned counsel referred to the evidence of the Investigating Officer P.W.-18 in paragraph 19 in which it has been stated that Paras Nath Chaudhary made his first police statement on 16.03.1990 when he visited the village Kharauna Dih. In the same paragraph, the Investigating Officer further deposed that he also met P.W.-17 Paras Nath Chaudhary on 14.03.1990 but on that date he did not record any police statement though he asked him to make police statement. In this connection, the Investigating Officer in the same paragraph further volunteered that on 14.03.1990 P.W.-17 was bewildered. In paragraph 20 he has stated that he met P.W.-17 on 15.03.1990 also but he did not say anything about the incident. 7. Learned counsel, in the light of the evidence of the aforesaid two material witnesses on whose evidence conviction of the appellants has been recorded by the trial court submitted that from the evidence of the aforesaid witnesses itself it would appear that neither P.W.-16 nor P.W.-17 has seen the occurrence from their own eyes. The so called oral dying-declaration also does not appear to have been made as in case oral dying-declaration was made by the victim before his father in presence of P.Ws. The so called oral dying-declaration also does not appear to have been made as in case oral dying-declaration was made by the victim before his father in presence of P.Ws. 6, 16, there was nothing for the father or P.Ws. 6, 16 to not disclose the said fact before the Investigating Officer on 14.03.1990. 8. Learned counsel for the appellant in the light of the medical evidence of P.W.-12 submitted that the prosecution story that Vijay Chaudhary shot the deceased with countrymade pistol in his belly from a very close range does not appear to be correct as the wound of entry and exit found on his person suggests that he was shot from behind and the projectile travelled upwards after entering the body which is contrary to the prosecution case. 9. Learned counsel for the State supported the judgment but could not dispute the submissions made by learned counsel for the appellants that P.W.-16 had not stated before the Investigating Officer that he is an eye witness of the occurrence and had seen Vijay Chaudhary firing shot on the person of the deceased. He also could not dispute the fact that the father of the victim did not record his police statement on 14.03.1990 and 15.03.1990 but such conduct of P.W.-17, according to learned State Counsel, cannot be a ground to discard the police statement made by the father P.W.-17 on 16.03.1990 that his son made an oral dying-declaration before him in presence of P.Ws. 6, 16. 10. Having considered the rival submissions and having gone through the contents of the fardbeyan as also the evidence of the witnesses, we are of the view that the occurrence has taken place on 12.03.1990 at 6:30 P.M. whereafter the injured was first taken to the village doctor and there from to the clinic of doctor R. B. Sinha at Juran Chapra, Muzaffarur where he succumbed to his injuries late in the same night. His inquest proceeding was conducted by the scribe of the fardbeyan at 4:30 A.M. on 13.03.1990. Soon thereafter fardbeyan was recorded at 5:00 A.M. The prosecution witnesses named in the fardbeyan have not supported the case as set out therein except P.W.-16 Baijnath Prasad Chaudhary. His inquest proceeding was conducted by the scribe of the fardbeyan at 4:30 A.M. on 13.03.1990. Soon thereafter fardbeyan was recorded at 5:00 A.M. The prosecution witnesses named in the fardbeyan have not supported the case as set out therein except P.W.-16 Baijnath Prasad Chaudhary. His evidence, however, cannot be relied upon as an eye witness as he did not state before P.W.-18, the Investigating Officer that he had seen the appellant Vijay Chaudhary firing shot on the person of the deceased Ashok Chaudhary. In this connection we have already discussed the evidence of P.W.-16 in paragraph-17 and P.W.-18, the Investigating Officer in paragraph-16. Coming next to the evidence of P.W.-17 Paras Nath Chaudhary, the father of the deceased before whom the deceased is said to have made an oral dying-declaration while he was being taken from the place of occurrence to the village doctor in presence of P.Ws. 6 and 16 but neither P.W.-6 nor P.W.-16 has stated such fact in their evidence nor P.W.-17 himself stated such fact before the Investigating Officer on two occasions i.e. 14.03.1990, 15.03.1990 though he was asked by the Investigating Officer to make his police statement. 11. In the circumstances, the belated police statement made by P.W.-17 as also the evidence recorded in court being not corroborated by others in whose presence the said dying- declaration is said to have been made, P.Ws. 6, 16 does not inspire confidence. It is an appropriate case for grant of benefit of doubt to the appellants. 12. In view of our finding recorded above, we have no option but to set aside the judgment of conviction and order of sentence dated 27.01.1993 passed in Sessions Trial No. 166 of 1992 by 2nd Additional Sessions Judge, Muzaffarpur. The appellants are on bail, they are discharged from the liabilities of their respective bail bonds.