JUDGMENT : ANJANA PRAKASH, J. By the judgment of conviction dated 16.07.2015 and order of sentence dated 21.07.2015 passed by the 2nd Additional Sessions Judge, Lakhisarai, in Sessions Trial No.201 of 2009 arising out of Halsi P.S. Case No. 95 of 2008, the sole Appellant has been convicted under Sections 302, 307 Indian Penal Code and Section 27 of the Arms Act and sentenced to undergo rigorous imprisonment for life with fine Rs. 10,000/- under Section 302 Indian Penal Code and in default of payment of fine further rigorous imprisonment for one year, rigorous imprisonment for seven years with fine of Rs. 2,000/- under Section 307 Indian Penal Code and in default of payment of fine further rigorous imprisonment for four months, rigorous imprisonment for three years with fine of Rs. 2,000/- under Section 27 of the Arms Act and in default of payment of fine further rigorous imprisonment for four months. All the sentences were ordered to run concurrently. 2. The case of the Informant, Bhola Sah, (PW 7) is that in the night of 24.09.2008 while his son Onkar Sah was sleeping along with his family, at about 11.00 PM, he suddenly heard shot of gun firing. He then screamed and found his son Onkar Sah and his grand sons Prince and Ritesh alias Golu injured. All the three injured were taken to Lakhisarai Hospital from where the doctor referred them to Patna, but on way his grand-son Ritesh @ Golu died, whereas, Onkar Sah and Prince were taken to hospital at Patna. He did not identify the person, who had fired but his son Onkar Sah had identified him who was taken to hospital at Patna. He then instituted the present case against unknown accused on the next morning at 7.00 AM at Jamui More, Lakhisarai. 3. During trial, the prosecution examined eleven witnesses. 4. PW 1 (Vinkar Sah) son of the Informant stated that on the night of 23.09.2008 at about 11.00 AM when he was sleeping in his room he suddenly heard sound of firing at which he ran to his brother where he was informed that he and his two sons had been injured. All the three were removed to Lakhisarai Hospital from where they were referred to PMCH but on the way his nephew Ritesh alias Golu died. His brother Onkar Sah disclosed that the Appellant, Kishori Mahto, had fired. All the three were removed to Lakhisarai Hospital from where they were referred to PMCH but on the way his nephew Ritesh alias Golu died. His brother Onkar Sah disclosed that the Appellant, Kishori Mahto, had fired. His brother alleged that the Appellant had fired from between the cracks of the door planks. He saw the Appellant along with 2-3 persons entering his house allegedly armed with a pistol. The Appellant allegedly had criminal antecedents and only recently he had been released on bail. He had an evil eye on the ladies of his family. In cross-examination, he stated that the Appellant used to watch his sister-in-law when she used to take bath about which she had complained to him. 5. PW 2 (Khushbu Kumari) is the sister of the deceased and grand-daughter of the Informant. She stated that on the night of occurrence while she was sleeping in her room she heard shot of firing at which she went to her father’s room and saw her brother and father injured. All the three were removed to the government hospital from where they were taken to Patna, but on the way her brother died. Her father, Vinkar Sah and Bhola Sah disclosed that the Appellant had fired. She stated that her father regained consciousness in Patna, but she had not gone there and when he returned from Patna he disclosed about the occurrence. 6. PW 3 (Vimli Devi) is the wife of Onkar Sah and daughter-in-law of the Informant, who stated that she saw her husband and two children having sustained fire arm injuries when they were sleeping in a separate room. On raising alarm, her father-in-law, brother-in-law and co-villagers came. When the co-villagers came, her husband disclosed that the Appellant had fired and injured them. Then they were removed to Lakhisarai hospital and from there to Patna but on the way her son died. She stated that her husband used to remain conscious for sometime and then fall unconscious and she along with her father-in-law and rest of the family members had rushed to the room of her husband together. It appears from the evidence of this witness that the Appellant used to reside close by and they were not on talking terms. 7. She stated that her husband used to remain conscious for sometime and then fall unconscious and she along with her father-in-law and rest of the family members had rushed to the room of her husband together. It appears from the evidence of this witness that the Appellant used to reside close by and they were not on talking terms. 7. PW 4 (Onkar Sah), who is the main witness, stated that while he was sleeping with his two sons on the same bed, the Appellant was abusing from his own house and fired from between the cracks of the door planks on account of which three of them were injured. On his screaming, his wife and brother came and opened the door and saw the Appellant entering his house with a pistol. He stated about being treated at the hospital along with his two sons and also that the house of the Appellant was about 22-25 feet away from his house. Surprisingly, he gave a different version in his cross-examination by saying that when the Appellant was abusing from his house he did not raise alarm and he was laying in the room door of which was closed. When he opened the door, the Appellant came inside his room and when he screamed his brother, wife and other villagers came and they all came out in the passage. He further stated that he was inside his room when the firing was resorted to and the door was closed. He further explained that at the time of occurrence his father was sleeping in the next room. He had met and talked to him but he did not disclose anything to his father. It was suggested to him that he had disclosed the name of the Appellant after twenty days which he denied. 8. PW 5 (Sanjay Kumar) and PW 6 (Meethu Mahto) have been declared hostile. 9. PW 7 (Bhola Sah) is the Informant, who once again repeated whatever he had stated in the fard-e-bayan. He proved his signature on the fard-e-bayan as Ext.1. However, he has stated that it was the Appellant, who had fired and that the deceased Golu died on the way. He identified the Appellant as the person who resorted firing. 10. PW 8 (Dr. Md. He proved his signature on the fard-e-bayan as Ext.1. However, he has stated that it was the Appellant, who had fired and that the deceased Golu died on the way. He identified the Appellant as the person who resorted firing. 10. PW 8 (Dr. Md. Faizuddin) conducted Post Mortem Examination on the dead body of Ritesh @ Golu, aged about two years, and proved the Post Mortem Examination Report as Ext.2. He found the following injuries on the person of the deceased: “Bandage applied on right leg was found. On opening the bandage one lacerated wound of size 1” x1” with inverted margin present on Antero-Lateral aspect of right leg 1½” below right knee. Blackening of wound margin present. Tattooing mark present around the wound extending from knee to lower third of right leg on the Antero lateral aspect. Wound of entry. One lacerated wound of size 3” x 2½” on the middle portion on the posterior aspect of right leg with everted margin. Muscles and soft tissue protruding through the wound. Wound of exit. Wound of entry and wound of exit found to be communicating each other. Blood and blood clots present in the wound. On Dissection: Blood and blood clot present in the tissue. Fracture of Tibia and Fibula bone of right leg. Muscle and deep tissue found to be lacerated and torn. Cause of death: Due to haemorrhage and shock as a result of the above mentioned injuries caused by fire arm. Time elapsed since is within 24 hours. 11. PW 9 (Manoj Kumar Sinha) was the Investigating Officer, who stated that he had recorded the fard-e-bayan of the Informant on 24.09.2008, instituted the case upon the said fard-ebayan and inspected the place of occurrence which was the house of the Informant. He disclosed the topography of the area and that three injured were referred to the PMCH and one of the injured, namely, Ritesh @ Golu died so, charge-sheet was submitted also under Section 302 Indian Penal Code. He stated that he did not go to the PMCH to record the statement of Onkar Sah. 12. PW 10 (Dr. Anil Kumar Thakur) proved the Injury Report of Prince aged about 6 years and Onkar Sah as Ext.3 & 3/1 respectively. He found the following injury on their persons: With regard to injured Prince: Two holes were seen on right fore foot. Size of entrance hole 1”. 12. PW 10 (Dr. Anil Kumar Thakur) proved the Injury Report of Prince aged about 6 years and Onkar Sah as Ext.3 & 3/1 respectively. He found the following injury on their persons: With regard to injured Prince: Two holes were seen on right fore foot. Size of entrance hole 1”. Size of exit wound 2”. Wounds are lacerated. Depth not probed. Time of injury: Within six hours Weapon used: Fire Arm. With regard to injured Onkar Sah: Charring is seen in right inner side of thigh. Lacerated wounds are seen in left inner thigh. Entrance wound size ¼”. Exit wound in lacerated side of thigh- about 2”. Depth- Not probed. Charring also seen entrance wound side. Time of injury- Within six hours. Weapon used: Fire Arm injury. 13. PW 11 (Dr. Sudhir Kumar) was the Observer of the Post Mortem Examination conducted by Dr. Md. Faizuddin (PW 8). He proved his signature on the Post Mortem Examination Report as Ext.4. 14. On going through the evidence of the witnesses discussed above, we find that admittedly the Appellant is not named in the First Information Report. Subsequently, the prosecution has developed a case by saying that PW 4 (Onkar Sah) had disclosed the name of the Appellant as the person, who had fired from between cracks of the door planks, and caused fire arm injuries to them. However, even though it is their own admission that the witnesses and the Informant reached the room almost simultaneously and that Onkar Sah had disclosed to them about the firing by the Appellant but the Informant does not mention this fact in the fard-e-bayan. Moreover, Onkar Sah himself stated that he had met his father right after the occurrence and also talked to him but he did not disclose the name of any one the reason for which he does not state. This makes the complicity of the Appellant highly doubtful. 15. In view of such, giving benefit of doubt the Appellant is acquitted of the charges levelled against him. The impugned judgment of conviction and order of sentence passed against the Appellant is hereby set aside. 16. The Appellant, Kishori Mahto, who is in custody, is directed to be released forthwith if not required in any other case. 17. In the result, the appeal stands allowed. Appeal allowed.