JUDGMENT : Kishore Kumar Mandal, J. Both the appeals arise out of Sessions Trial No. 202 of 1993 and, as such, have been heard together. 2. Naresh Sah is the sole appellant in Cr. Appeal No. 605 of 2012 whereas Ram Chandra Sah and Dhirendra Paswan are the two appellants in Cr. Appeal No. 722 of 2012. 3. P.W.8 lodged the Fardbeyan on 16.06.1992 at village Itahari vide Murliganj P.S. Case N0. 81 of 1992 registered under sections 302, 201 and 379/34 IPC which gave rise to the aforesaid Sessions Trial. The learned Addl. Sessions Judge-1, Madhepura, by his judgment dated 30th May, 2012, held all the appellants guilty under section 302, 201 IPC and section 27 of the Arms Act and sentenced them to undergo R.I. for life, R.I. for 05 years and R.I. for 03 years respectively, besides imposing a fine of Rs.10,000/- each with default clause. Additionally, the appellant Ram Chandra Sah was held guilty under section 379 IPC and sentenced to undergo R.I. for 02 years. Sentences so imposed was/were directed to run concurrently. 4. In an unfortunate incident that took place on 16th June, 1992, two persons including the cousin brother of the informant (P.W.8) were killed. According to the Fardbeyan (Ext. 4) given by P.W.8, the maternal brother of the informant, namely, Bisheshwar Das @ Pappu Mistri along with his co-villager Kamal Das (both deceased) had gone to see a boy in connection with the marriage negotiation on 16.06.1992 at about 03.00 P.M. on a motorcycle, but when his cousin brother did not return till 8.00 P.M., the informant grew suspicious and went to Prasadi Chouk and kept waiting for them to return. Meanwhile, a motorcycle rider came from Murliganj side and disclosed to him that Ram Chandra Sah (one of the appellants) had killed two persons by gunshot at village Itahari and looted the motorcycle as well. The suspicious informant proceeded towards the village along with his uncle Vidya Sagar Das and ‘Phoopha’ Resham Lal (both not examined) and reached there at about 9.00 P.M. where it was brought to his knowledge that two dead bodies were lying in the backyard (Badi) of Basudeo Sah. The suspicious informant proceeded towards the village along with his uncle Vidya Sagar Das and ‘Phoopha’ Resham Lal (both not examined) and reached there at about 9.00 P.M. where it was brought to his knowledge that two dead bodies were lying in the backyard (Badi) of Basudeo Sah. Along with the villagers namely Jagdish Paswan (P.W.2), Kama Devi (P.W. 3), Prem Lata (P.W.4), Umesh Paswan (not examined) and Raghu Nandan Paswan (P.W.1) he went to the backyard to find the dead bodies of his maternal brother and one Kamal Sah lying there in a pool of blood. The witnesses including Jagdish Paswan, Kama Devi, Prem Lata and Umesh Paswan informed him that they had seen the incident when two persons riding a motorcycle coming from Digghi side and going to Dharhara side were stopped at about 5.00 P.M. as the appellant Ram Chandra Sah had kept wooden log on the road near his house. When the motorcycle stopped, Ram Chandra Sah, Naresh Sah and Dhirendra Paswan (appellants), all residents of village Itahari, shot them as a result whereof they died and thereafter their bodies were dragged to the backyard of Basudeo Sah and thereafter the motorcycle was taken away by the appellant Ram Chandra Sah. The mother of Ram Chandra Sah is said to have collected/gathered the blood-stained soil from the place of occurrence with a view to destroy the evidence. 5. The Investigating Officer (not examined) who is the Officer-in-charge of Murliganj police station reached the village and recorded the FIR at about 10.00 P.M. at village Itahari and thereafter initiated the investigation. The I.O. prepared the inquest reports of both the victims and thereafter sent the dead bodies for post mortem. Upon receipt of the post mortem reports in respect of both the dead bodies and upon conclusion of investigation, charge-sheet was laid against the present appellants, Domi Mukhia and one Dinesh Paswan whereupon the learned ACJM, Madhepura took cognizance of the offence and subsequently the case was committed to the court of sessions on 20.09.1993. The learned trial court framed the charges under the aforesaid sections of the Penal Code on 25.06.1994. From the record it appears that the co-accused Domi Mukhia subsequently absconded. His trial was separated. The learned trial court framed the charges under the aforesaid sections of the Penal Code on 25.06.1994. From the record it appears that the co-accused Domi Mukhia subsequently absconded. His trial was separated. The learned trial court on appreciation of evidence produced at the trial held that the charges framed against the appellants on the strength of evidence, particularly those of P.Ws 3,4,6 and 8(informant) have been proved beyond shadow of reasonable doubt and convicted them in the manner indicated above. 6. The prosecution in order to prove the charges examined 08 witnesses namely Raghunandan Paswan @ Raghu Paswan (P.W.1), Jagdish Paswan (P.W.2), Kama Devi (P.W.3), Premlata Devi (P.W.4), Umesh Yadav (P.W. 5), Dr. Nand Kishore Vidyarthi (P.W.6) Majlis Hussain (P.W.7) and Rajeshwar Das/informant (P.W.8). 7. The defence also adduced oral evidence and examined Nandkishore Sah (D.W.1) and Gulabi Devi (D.W.2). Amongst the prosecution witnesses, P.W. 1 has been declared hostile. He has proved his signature over the carbon copy of the inquest report of the deceased Kamal Das, the inquest report of co-accused Bisheshwar Das @ Pappu Mistri and the seizure list dated 17.06.1992 showing recovery of Yamaha motorcycle as Ext. 1, 1/1 and 1/2 respectively. P.W. 2 has also been declared hostile by the prosecution. This witness has, however, proved his signature over the inquest report of the deceased Kamal Das, the inquest report of the deceased Bisheshwar Das @ Pappu Mistri and the signature over the seizure list dated 17.06.1992 as Ext. 1/3, 1/4 and 1/5 respectively. P.W. 5 is a formal witness who has proved the Ext. 2 which is the formal FIR. P.W. 7 is again a formal witness who has proved the writings of the Fardbayan (Ext.4). P.W. 6 is the doctor who held the autopsy on the dead body of the deceased Kamal Das and proved his post mortem report (Ext. 3). The autopsy report of Bisheshwar Das @ Pappu Mistri held by another doctor has been proved by P.W.6 as Ext. 3/1 (with objection). The I.O. of the case has not been examined by the prosecution. There is no explanation therefor also. P.W. 8 is the informant of the case who was also sought to be declared as hostile at the request of the prosecution and was cross-examined by the prosecution as well as the accuseds. 8. We have heard Mr. Rajeev Kumar Verma as well as Mr. There is no explanation therefor also. P.W. 8 is the informant of the case who was also sought to be declared as hostile at the request of the prosecution and was cross-examined by the prosecution as well as the accuseds. 8. We have heard Mr. Rajeev Kumar Verma as well as Mr. Salauddin Khan in support of Cr. Appeal No. 722 of 2012, Mr. Siyaram Sahi in support of Cr. Appeal No. 605 of 2012 and Mr. S.C. Mishra, APP for the State. 9. P.W.6 is Dr. Nand Kishore Vidyarthi held the post mortem on the cadaver of one of the deceased’s namely Kamal Das at 10.00 A.M. on 17.06.1992. In his deposition, he has stated that on 17.06.1992 while posted at Sadar Hospital Madhepura, he conducted the post mortem at 10.00 A.M on the body of Kamal Das duly identified by the Chaukidar Liakat Hussain and Kamleshwari Paswan and found the following anti mortem injury:- “1. One lacerated wound over the left side of the chest anteriorly 3” away from midline in second inter-coastal space measuring ¾” x ½” going deep into chest cavity. Morgin of the wounds was charred and inverted. 2. Lacerated wound over the left infra scapular region ¾” x 1/2” x communicating from the chest cavity and Morgin of wound everted. On opening the chest there was diffuse hematoma in the subcutaneous and inter mascular plane around the wounds. Injury no.1 was directed downwards, backwards and posteriorly penetrating the chest wall, left lung and communicating with the injury no.2. Rigor mortis was present.” 10. According to the doctor, the cause of death was shock and haemorrhage due to above injuries caused by fire-arms. Time elapsed since the death was about 20 hours. He proved his post mortem report (Ext.3). 11. At the request of the prosecution, the post mortem report of another deceased namely Bisheshwar Das @ Pappu Mistri prepared by another doctor has been marked as Ext. 3/1 (with objection). The trial court has, however, not referred to and relied upon the said post mortem report as the same was not legally proved at the trial. 12. On perusal of the evidence of the doctor in the light of the prosecution case developed at the trial, it is not much in dispute that the deceased Kamal Das died on account of receiving one gunshot injury sustained by him. 12. On perusal of the evidence of the doctor in the light of the prosecution case developed at the trial, it is not much in dispute that the deceased Kamal Das died on account of receiving one gunshot injury sustained by him. It is further established that he (Kamal Das) received the wound of entry at his chest and the wound of exit at the back of the body as those two injuries were communicating to each other. 13. The trial court mainly relied on the evidence of the doctor, the informant(P.W.8), Kama Devi (P.W. 3) and Premlata Devi (P.W.4) in order to fasten the guilt on the accuseds/appellants. Indisputably, the informant (P.W.8) is not the eye-witness to the occurrence. The prosecution presented P.Ws 3 and 4 as the eye witnesses to the actual assault on the two deceaseds. The Court has to consider the intrinsic worth of their evidence. 14. Mr. Rajeev Kumar Verma, learned Sr. Counsel has contented that it is a case where neither the time of occurrence nor the place of occurrence or the manner of occurrence has been proved/established firmly by the prosecution. The relevant evidences have been withheld by the prosecution. The uncle and Phoopha of the informant with whom the informant (P.W.8) travelled to village Itahari from Prasadi Chauk has not been examined in the case. P.W.8, the informant, too, at the request of the prosecution, was declared hostile and was cross-examined. His evidence in Court even after being declared hostile can be looked into and appreciated by the court. The relevant witnesses produced by the prosecution to prove the guilt of the accused de hors the natural human conduct. Non-examination of the Investigating Officer without there being any plausible explanation has gravely prejudiced the defence. Although the ocular evidence of the prosecution suggests that in the occurrence the co-victim Bisheshwar Das @ Pappu Mistri was also killed but the prosecution failed to establish/substantiate the same by not legally proving his post mortem report. He has severely criticized the impugned judgment wherein the learned trial court relied upon the Fardbeyan and few paragraphs of the case diary in order to hold that the time, place and the manner of occurrence have been established. 15. Mr. Khan who appeared on behalf of one of the appellants in Cr. He has severely criticized the impugned judgment wherein the learned trial court relied upon the Fardbeyan and few paragraphs of the case diary in order to hold that the time, place and the manner of occurrence have been established. 15. Mr. Khan who appeared on behalf of one of the appellants in Cr. Appeal No. 722 of 2012 would urge that even in case of the death of the victim Kamal Das, the manner of occurrence as stated by P.W.3 (Premlata Devi) is not established. Her ocular narration of the case stands contradicted by the objective finding of the doctor (P.W.6). 16. Mr. Siyaram Sahi, the counsel appearing for the appellant Naresh Sah in Cr. Appeal No. 605 of 2012, while adopting the submissions made by Mr. Verma and Mr. Khan, submitted that the conviction of the appellants is contrary to the evidence on record produced by the prosecution and thus stands vitiated in law. 17. Mr. S.C. Mishra, counsel for the State, on the other hand, supported the impugned judgment of conviction. It is submitted that at least P.Ws. 3 &4 supported the prosecution case as eye witness and narrated the manner in which the motorcycle on which the two victims were riding was intercepted and the appellants resorted to firing on them causing their death instantaneously whereafter the dead bodies were dragged from the road to the nearby backyard of one Basudeo Sah (not examined) from where the dead bodies were recovered by the Investigating Officer. Even though the I.O. has not been examined in this case but the ocular evidence of P.W.s 3, 4 & 8 proved that the two bodies were found in the backyard of Basudeo Sah wherefrom they were dispatched for the autopsy. The inquest over the dead bodies carried by the I.O. has been proved by P.Ws 1 and 2. 18. We shall now examine in the context of the evidence on record whether the prosecution has proved the charges beyond the periphery of any doubt. In doing so we would exclude the evidence of P.Ws. 1,2, 5 & 7 as they do not throw much light on the prosecution case. They are formal in nature. P.Ws 1 and 2 have also been declared hostile. P.W. 8 is the informant who is the cousin brother of one of the victims namely Bisheshwar Das @ Pappu Mistri. In doing so we would exclude the evidence of P.Ws. 1,2, 5 & 7 as they do not throw much light on the prosecution case. They are formal in nature. P.Ws 1 and 2 have also been declared hostile. P.W. 8 is the informant who is the cousin brother of one of the victims namely Bisheshwar Das @ Pappu Mistri. According to him, the Fardbayan, noticed at the outset, was recorded at 10.00 P.M. at village Itahari. The cousin brother of the informant left home on a motorcycle along with the co-villager Kamal Das (another victim) for village Sikarhatti. When he did not return by 8.00 P.M. in the evening, the informant along with few co-villagers went to Prasadi Chauk and started waiting for him. In the meantime, one motorcyclist came from Murliganj side and informed him that the appellant Ram Chandra Sah had killed two persons in village Itahari and took away the motorcycle. The informant proceeded towards village Itahari along with his uncle Vidya Sagar Das and Phoopha Resham Lal Das (both not examined) and reached there at 9.00 P.M. and received information about the dead bodies lying in the backyard of Basudeo Sah. Along with Jagdish Paswan (P.W.2), Kama Devi (P.W.3), Premlata Devi (P.W.4), Umesh Paswan (not examined) and Raghunandan Paswan @ Raghu Paswan (P.W.1) he went to the backyard and identified the dead body of his cousin brother and that of Kamal Das. The witnesses present there narrated him about the manner in which the two deceaseds were done to death by the appellants. He has also stated about the motive in the Fardbayan. Apparently, the Fardbyan was made by him at 10.00 P.M. before the officer-in-charge of Murliganj police station at village Itahari. The informant, in his examination-in-chief, has stated that on 16.06.1992 the two victims had left the place at about 9/10 A.M. in the morning but did not return. The following night at about 3 o’ clock, the officer-in-charge of Murliganj police station came to his house and awoke him and enquired as to whether someone in his family had gone outside. It was disclosed by him that Bisheshwar Das @ Pappu Mistri along with another co villager had gone to village Sikarhati in the day but he had not returned. It was disclosed by him that Bisheshwar Das @ Pappu Mistri along with another co villager had gone to village Sikarhati in the day but he had not returned. The officer-in-charge then informed him that his cousin brother was murdered and he was instructed to go to the police station and identify the dead body. Along with his uncle Vidya Sagar Das (not examined) and the officer-in-charge, he went to the police station and identified the dead body of his cousin brother who had received gunshot injury. The officer-incharge informed him that one Domi Mallah had killed the victims. Thereafter he made statement at the police station itself. He has not disclosed the name of any accused except Domi Mallah as the killer of his brother. His signature on the Fardbayan recorded at village Itahari has been proved. Seeing his evidence in complete contradiction of the Fardbayan, he was declared hostile and was cross-examined by the prosecution as well as the accuseds. In his cross-examination, he has stated that seeing the dead body of his brother he lost his mental balance and, as such, cannot say whether he put his signature on a blank paper. He is, however, specific that the Fardbayan made by him was not read over/explained to him. On going through his evidence, it is found that he has completely negated his statement made in the Fardbayan which creates a serious doubt about the prosecution case. That apart, even if the Fardbayan made by him is taken into consideration for whatever worth it may be, we find that the same is contrary to the normal human conduct. Why should he wait at the Prasadi Chauk? How did the motorcyclist pick him up at Prasasi Chouk to inform about the killing of the two victims? Who was he? Did the informant thereafter actually travel to village Itahari with his uncle and Phoopha? All these relevant questions remain unanswered/unexplained. We would notice, at this juncture, that the evidence of the I.O. could have explained many of the aforesaid circumstances but unfortunately the prosecution failed to produce him as a witness for no plausible reason. 19. The evidence of the hostile witness is not to be rejected in its entirety. All these relevant questions remain unanswered/unexplained. We would notice, at this juncture, that the evidence of the I.O. could have explained many of the aforesaid circumstances but unfortunately the prosecution failed to produce him as a witness for no plausible reason. 19. The evidence of the hostile witness is not to be rejected in its entirety. In Rameshbhai Mohanbhai Koli vs. State of Gujarat, 2011 (1) East Cr C 100 (SC) : [ (2011)11 SCC 111 ], the Supreme Court at paragraph 16 (SCC p.117, paras 16-17) clarified the law as under:- “16. It is settled legal proposition that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that heir version is found to be dependable on a careful scrutiny thereof. (Vide Bhagwan Singh v. State of Haryana, Rabindra Kumar Dey v. State of Orissa, Syad Akbar v. State of Karnataka and Khujji v. State of M.P.)” 20. Again reiterating the said proposition of law in the State of U.P. Vs. Ramesh Prasad Misra ( 1996 10 SCC 360 ), it was held that the evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny. Keeping in mind the aforesaid settled proposition of law we examined the evidence of P.W.8. In paragraph 2 of his cross-examination he has stated in the manner his Fardbayan was recorded including the immediate motive for the occurrence as exchange of hot words between the appellant Ram Chandra Sah and the deceased Bisheshwar Das @ Pappu Mistri few days before whereafter threats were held out by him. In paragraph 3 he categorically states that the contents of the Fardbayan was not read over and explained to him. Referring to the contents of the Fardbayan allegedly made by the informant at village Itahari and recorded by the officer-in-charge we find that the same is contrary to the normal human behaviour. On appreciation of his entire evidence, we find several fundamental discrepancies which cast serious doubt over the prosecution case. 22. Referring to the contents of the Fardbayan allegedly made by the informant at village Itahari and recorded by the officer-in-charge we find that the same is contrary to the normal human behaviour. On appreciation of his entire evidence, we find several fundamental discrepancies which cast serious doubt over the prosecution case. 22. Having said so, we proceed to examine the ocular evidence of P.Ws 3 and 4 on whom the prosecution has heavily relied in order to sustain the conviction of the appellants. P.W. 3 is the wife of Dukhi Paswan and resident of village Itahari. According to her, she was at the flour mill of Kulo Sah situated by the side of the road at the evening. The house of the appellant Ram Chandra Sah is on the other side of the road. She noticed a wooden log kept on the road when from the northern side one motorcycle arrived and stopped whereafter the accused Naresh Sah fired at the person who was driving the motorcycle whereafter the appellant Ram Chandra Sah also fired at him. The victim sitting on pillion started fleeing away whereafter the appellant Dhirendra Paswan fired from his country-made pistol at him. Both the victims died. The accused persons thereafter dragged them towards the north. The appellant Ram Chandra Sah along with his father removed the motorcycle from the place of occurrence. The mother of appellant Naresh Sah removed the blood-stained soil by scratching from the place of occurrence. On going through her cross-examination, it is found that this witness has stated that at and around the place of occurrence 20-30 persons were seen including the appellants Naresh Sah, Ram Chandra Sah, Dhirendra Paswan and the co accused Domi Mallah. Premlata Devi (P.W.4) was also present at the flour mill when she was there. In paragraph 8 this witness is specific that after the gunshot was fired she left the flour mill and thereafter she heard the sound of third gunshot fire. On perusal of her statement made in para 12 and 13, it is found that one of her sons was killed in dacoity whereas her husband was an accused in a murder case in which he was convicted. He was also accused in another case. To sum up, the witness is unable to state the actual time and manner of occurrence. He was also accused in another case. To sum up, the witness is unable to state the actual time and manner of occurrence. It becomes doubtful from her evidence as to whether she witnessed the entire episode as she herself stated that when she left the place the sound of third gunshot firing was heard by her. It is also not deciphered from her evidence who, out of the two deceaseds, was driving the motorcycle and who was sitting as pillion. Her family members including the son and husband were involved in serious criminal cases inasmuch as one of her sons was killed while committing dacoity. We find difficulty and unsafe to wholly rely on her evidence. 23. Turning to the evidence of Premlata Devi (P.W.4), it is seen that she, too, claimed to be at the flour mill from where she witnessed the co accused Domi Mallah and the appellants putting up a wooden log on the road on which she queried. In the meantime, one motorcycle from the northern side came and stopped. The appellant Naresh Sah fired from his gun at the one who was driving the motorcycle whereafter the appellant Ram Chandra Sah also fired at him. Specifially she has stated that when the pillion rider was running away from the place of occurrence the appellant Dhirendra Paswan fired at him as a result whereof both the persons died. Accused Naresh Sah, Dhirendra Paswan and Domi Mallah took away the dead bodies of the deceased. In her cross-examination she has admitted that P.W.3 is her agnate. The appellant Dhirendra Paswan is her neighbour. A case under section 107 Cr. P.C. was going on from before between the appellant Ram Chandra Sah and her husband. The prosecution suggested her that she was an imposter and not the wife of Vilaxan Paswan which was denied by her. In paragraph 15 of her cross-examination this witness has stated that after finishing her work in the field she came to the house and cooked food for which she had gone to the shop to purchase rice and thereafter she remained continuously (Barabar) at her house. The Court, at this stage, would notice the evidence of D.W.2 where she stated that the name of the wife of Vilaxan Paswan who is a co villager is Dularman Devi and not Premlata Devi. He had only one wife called Dularman Devi. The Court, at this stage, would notice the evidence of D.W.2 where she stated that the name of the wife of Vilaxan Paswan who is a co villager is Dularman Devi and not Premlata Devi. He had only one wife called Dularman Devi. On carefully analyzing her evidence the Court finds material contradictions and discrepancy in her evidence. Firstly, she has stated that the dead bodies were lifted and taken away whereas P.W. 3 has stated that the two dead bodies were dragged by the accused to the nearby backyard of Basudeo Sah. On her own evidence serious doubt is created as to whether this witness had again gone to the flour mill at the time of sunset when the occurrence is said to have been committed. The Court does not find her evidence inspiring confidence to prove the guilt. The Court further finds vital contradiction in the evidence of P.Ws 3 and 4 itself on the point of collecting blood-stained soil from the place of occurrence. P.W. 4 at para 2 has stated that the mother of appellant Ram Chandra Sah (appellant of Cr. Appeal No. 722/12) collected bloodstained soil from the place of occurrence whereas P.W. 3 at para 2 has stated that the mother of Naresh Sah (Appellant of Cr. Appeal No. 605/12) had colleted the blood-stained soil from the palace of occurrence. To top it all, the non examination of the I.O. without there being any explanation therefor has given a fatal blow to the prosecution case. True it is that in all cases such non-examination of the I.O. would not be fatal but considering the attending circumstances if it is found that the same has seriously prejudiced the case of the prosecution then only the Court can justifiably infer that non examination of the I.O. is a blow to the prosecution case which is fatal. We have seen the evidence of the informant wherein he has categorically stated that the contents of the Fardbayan recorded in the present case at the place of occurrence was not read over and explained to him before his signature/LTI was obtained. In his cross-examination, it is stated that at the dead of night of the day of occurrence the SHO, Murliganj had come to his house to enquire about his family members who might have gone out of the house and did not return. In his cross-examination, it is stated that at the dead of night of the day of occurrence the SHO, Murliganj had come to his house to enquire about his family members who might have gone out of the house and did not return. Thereafter he disclosed to him that two dead bodies are lying at the police station and he should go and identify them. Along with the SHO, he and another family member (not examined) went to the police station and identified the dead body of Bisheshwar Das @ Pappu Mistri. Whether the Fardbayan was recorded immediately after the occurrence at about 10.00 P.M. at village Itahari as claimed by the prosecution or in the wee hours of 17.06.1992 at the police station itself could have been explained by the I.O. as the informant has materially contradicted himself. 24. The legal principle in this regard has been aptly clarified by the Apex Court in Lahu Kamlakar Patil v. State of Maharashtra since reported in 2013 6 SCC 417 where the Apex Court observed as under in paragraph 18:- “18. Keeping in view the aforesaid position of law, the testimony of PW 1 has to be appreciated. He has admitted his signature in the FIR but has given the excuse that it was taken on a blank paper. The same could have been clarified by the investigating officer, but for some reason, the investigating officer has not been examined by the prosecution. It is an accepted principle that non-examination of the investigating officer is not fatal to the prosecution case. In Behari Prasad v. State of Bihar, this Court has stated that non-examination of the investigating officer is not fatal to the prosecution case, especially when no prejudice is likely to be suffered by the accused. In Bahadur Naik v. State of Bihar, it has been opined that when no material contradictions have been brought out, then non-examination of the investigating officer as a witness for the prosecution is of no consequence and under such circumstances, no prejudice is caused to the accused. It is worthy to note that neither the trial Judge nor the High Court has delved into the issue of non-examination of the investigating officer. On a perusal of the entire material brought on record, we find that no explanation has been offered. It is worthy to note that neither the trial Judge nor the High Court has delved into the issue of non-examination of the investigating officer. On a perusal of the entire material brought on record, we find that no explanation has been offered. The present case is one where we are inclined to think so especially when the informant has stated that the signature was taken while he was in a drunken state, the panch witness had turned hostile and some of the evidence adduced in the court did not find place in the statement recorded under Section 161 of the Code. Thus, this Court in Arvind Singh v. State of Bihar, Rattanlal v. State of J & K and Ravishwar Manjhi v. State of Jharkhand has explained certain circumstances where the examination of inv instigating officer becomes vital. We are disposed to think that the present case is one where the investigating officer should have been examined and his non-examination creates a lacuna in the case of the prosecution.” 25. On a critical analysis of the relevant evidence, we find that the prosecution mainly relied on the evidence of P.Ws. 3 and 4 to prove the guilt of the appellants. Having appreciated the same, the Court carefully perused their evidence in Court. P.W. 3 cannot be totally relied on. She has stated that while the pillion rider started fleeing away a shot was fired at him by the appellant Dhirendra Paswan. We find from the evidence of the doctor (P.W.6) that the wound of entry on the person of Kamal Das was found on the left side of the chest and the wound of exit was over the left infra scapular region. Although the prosecution has miserably failed to demonstrate as to who was driving the motor cycle on the fateful evening and who was the pillion rider, but the Court deducing from the Fardbayan as well as the evidence of the informant finds that it was his cousin brother who had gone out on the relevant date on his own motorcycle with one co-villager (another deceased). In all probability, it was Bisheshwar Das @ Pappu Mistri who was driving the motor cycle on the relevant date whereas Kamal Das (another deceased) was along with him. In all probability, it was Bisheshwar Das @ Pappu Mistri who was driving the motor cycle on the relevant date whereas Kamal Das (another deceased) was along with him. It was thus Kamal Das, who, on seeing the firing on the motorcycle driver, started fleeing away from the place of occurrence and was fired at by one of the appellants if the evidence of P.W. 3 is to be believed to that extent. As observed, her evidence to this effect runs contrary to the objective findings of the doctor and discredits her evidence. 26. It thus becomes a case where neither the place of occurrence nor the manner of occurrence has been established by cogent evidence. 27. In the light of the discussions made above and the conclusions arrived, the Court finds it not safe to uphold the judgment of conviction recorded by the trial court against the appellants. Many aspects of the prosecution case remained shrouded in mystery. The evidence of P.Ws 3 and 4 who have postured themselves as eye witnesses to the occurrence are not free from serious doubts. Granting the appellant the benefit of doubt, we are inclined to acquit them of all the charges for which they were tried and convicted. 28. Resultantly, both the appeals succeed and the judgment of conviction dated 30th May, 2012 and the order of sentence dated 1st June, 2012 passed against the appellants by the learned trial Judge is/are set aside. Since the appellants, namely, Ram Chandra Sah & Dhirendra Paswan (Cr. Appeal No. 722/12) and Naresh Sah (Cr. Appeal No. 605/12) are in custody, they are directed to be set at liberty forthwith, if not wanted in any other case.