JUDGMENT : H.C. Mishra, J. All these three appeals arise out of the same impugned Judgment, as such these appeals were heard together and are being disposed of by this common Judgment. 2. Heard learned counsel for the appellants and learned counsel for the State. 3. The appellants are aggrieved by the Judgment of conviction and Order of sentence dated 16.12.1992, passed by the learned 2nd Additional Sessions Judge, Palamau, in Sessions Trial No. 320 of 1990, whereby the appellant Laxmi Ram @ Lachmi Narayan Ram has been found guilty and convicted for the offences under Section 302 of the Indian Penal Code and section 27 of the Arms Act, whereas the other two appellants have been found guilty and convicted for the offences under Sections 302/34 of the Indian Penal code and section 35 of the Arms Act. Upon hearing on the point of sentence, all the appellants have been sentenced to undergo R.I. for life for the offences under Sections 302/34 of the Indian Penal Code. No separate sentence was passed for the offences under sections 27 and 35 of the Arms Act. 4. The prosecution case was instituted on the basis of the fardbeyan of the informant Ashok Kumar, recorded at Sadar Hospital, Daltonganj, on 11.3.1990 at 20.15 hours, wherein he has stated that the day of occurrence, being the festival of Holi, in the evening he was going to meet his friend Kundan Singh, on his motorcycle, and he met him in the way. After spending some time with friends Kundan Singh and Sanjay Prasad, they came to take betel at the betel shop of Gopal Ji, near Sadeek Manjil Chowk. The informant Ashok Kumar remained on his motorcycle, whereas Kundan Singh and Sanjay Prasad went to the shop for taking betel. At about 7.15 P.M., they returned back and informant started his motorcycle, on which, Sanjay Prasad sat behind him and Kundan Singh was about to sit on his motorcycle, when one green coloured Vespa scooter came and stopped by the side of the motorcycle. The said scooter was being driven by Manu Prasad, Nanhe Pande was sitting behind him and Laxmi Ram was sitting behind Nanhe Pande, who took out a pistol and fired upon Kundan Singh from point blank range, injuring him near his ear. Kundan Singh fell down and all the three persons, who had come on the scooter fled away. The said scooter was being driven by Manu Prasad, Nanhe Pande was sitting behind him and Laxmi Ram was sitting behind Nanhe Pande, who took out a pistol and fired upon Kundan Singh from point blank range, injuring him near his ear. Kundan Singh fell down and all the three persons, who had come on the scooter fled away. Thereafter, the informant asked Sanjay Prasad to start the motorcycle, and he, with the help of one Guddu, who was present at the betel shop, got Kundan Singh seated in the middle of the motorcycle, and the informant himself sat behind holding him and they came to Sadar Hospital in the emergency ward, where in course of treatment, Kundan Singh died. The informant has stated that the occurrence was witnessed by many persons at the place of occurrence and the reason behind the occurrence could be informed by the family members of the Kundan Singh. On the basis of the fardbeyan of the informant Ashok Kumar, Sadar P.S. Case No. 69 of 1990, corresponding to G.R. No. 294 of 1990 was instituted for the offences under Sections 302/34 of the Indian Penal Code and section 27 of the Arms Act, against the accused persons and investigation was taken up. After investigation, the police submitted the charge sheet in the case. 5. After commitment of the case to the Court of Session, charge was framed against the appellant Laxmi Ram @ Lachmi Narayan Ram for the offences under Section 302 of the Indian Penal Code and section 27 of the Arms Act, whereas against the other two appellants, for the offences under Sections 302/34 of the Indian Penal Code and section 35 of the Arms Act, and upon the accused persons' pleading not guilty and claiming to be tried, they were put to trial. In course of trial, nine witnesses were examined on behalf of the prosecution, including the I.O. and the Doctor. One witness, P.W.-5 Awatar Singh has only been tendered by the prosecution. The defence is complete denial of the charge and six witnesses were examined on behalf of the defence also. 6. P.W.-1 Ashok Kumar is the informant and P.W.-2 Sajay Prasad is the friend of the informant and the deceased, who were altogether on the date of occurrence. One witness, P.W.-5 Awatar Singh has only been tendered by the prosecution. The defence is complete denial of the charge and six witnesses were examined on behalf of the defence also. 6. P.W.-1 Ashok Kumar is the informant and P.W.-2 Sajay Prasad is the friend of the informant and the deceased, who were altogether on the date of occurrence. Though these witnesses have stated about the manner, in which, the deceased Kundan Singh was killed, but they have stated that they could not identify the culprits, who had come on the green coloured Vespa scooter and assaulted the deceased by pistol. P.W.-1 Ashok Kumar has stated that in the hospital the police only asked to him that as to who had brought the deceased, to which, this witness replied that he had brought the deceased, and only his signature was taken on a blank paper, which he had identified on the fardbeyan and the same was marked Exhibit-1. P.W.-2 Sanjay Prasad has also stated that the inquest report of the dead body was prepared, on which, he had put his signature and he has identified his signature on the inquest report, which was marked Exhibit-1/1. Both these witnesses were declared hostile by the prosecution on the point of identification of the accused persons. In their cross-examination by the defence, both these witnesses have stated that at the time of occurrence, there was no electricity and it was complete dark. In his cross-examination P.W.-2 Sanjay Prasad has also admitted that he had given the statement under section 164 of the Cr.P.C., 1973 before the Judicial Magistrate, but he has stated that the said statement was given under the pressure of the Office-in-charge of Daltonganj Town Police Station, Raj Kishore Sharma. 7. P.W.-3 Gopal Ram is the person, on whose betel shop, the deceased had gone to take betel. He has stated that he heard only some sound of bomb or cracker, but he did not come out of his shop as it was raining, and he had not seen any one injured. This witness was also, accordingly, declared hostile, and in cross-examination this witness has also stated that there was complete dark at the time of occurrence as there was no electricity at that time. 8. P.W.-4 Harish Kumar @ Guddu is the sole eyewitness to the occurrence, supporting the prosecution case. This witness was also, accordingly, declared hostile, and in cross-examination this witness has also stated that there was complete dark at the time of occurrence as there was no electricity at that time. 8. P.W.-4 Harish Kumar @ Guddu is the sole eyewitness to the occurrence, supporting the prosecution case. This witness has stated that the occurrence took place at about 7.00 P.M., when he was at Sadeek Manjil Chowk. Sanjay Prasad, Ashok Kumar and Kundan Singh came on a motorcycle, Ashok Kumar and Kundan Singh went to take betel at the shop of Gopal Ji and when they returned back, Ashok Kumar started the motorcycle, Sanjay Prasad sat behind him and Kundan Singh was about to sit on the motorcycle, when a green coloured Vespa scooter, which was being driven by Manu Prasad came, on which Nanhe Pande was sitting in the middle and Laxmi Ram was sitting behind. The scooter stopped by the side of the motorcycle and Laxmi Ram took out a pistol and fired upon Kundan Singh from point blank range, injuring him near his ear, where upon Kundan Singh fell down. Thereafter, all the three accused persons fled away. This witness and Ashok Kumar lifted Kundan Singh and seated him on the motorcycle in the middle, which was driven by Sanjay Prasad, and injured Kundan Singh was brought to the Sadar Hospital. After bringing Kundan Singh to hospital, he went to inform the family members of Kundan Singh and while he returned back, he found Kundan Singh dead. This witness has identified all the three accused persons in the Court. He has also stated that his statement was recorded by the police and his statement was also recorded under section 164 of the Cr.P.C., 1973 before the Judicial Magistrate and he has identified his signature on his statement, recorded by the Judicial Magistrate, which was marked Exhibit-1/2. This witness was put to extensive cross-examination and in his cross-examination, he has stated that his uncle had a sweet shop at Sadeek Manjil Chowk and at the time of occurrence he had also taken betel and was standing near the electric pole, facing towards the Girls' School. He has stated that he had no criminal antecedent. He has also stated that he knew the accused persons from before. He has stated that he had no criminal antecedent. He has also stated that he knew the accused persons from before. This witness has also stated in his cross-examination that Laxmi Ram had assaulted Kundan Singh on the pretext of embracing him, but Laxmi Ram remained on the scooter itself and there was no talk between the Laxmi Ram and the deceased. He has stated that when he had gone to inform the family members of the deceased, the parents and brother of the deceased were present in the house. He has also stated that he had raised alarm, but no one had assembled there and there were no passersby at that time. This witness has also stated that the electric pole was at the distance of five steps from the tea shop of Awatar Singh and by the side of that tea shop, the betel shop of Gopal Ram is there. He has also admitted that at the time of occurrence, it was raining. This witness has denied the suggestion to have given the false evidence. 9. P.W.-6 is Dr. Nagendra Prasad, who was posted as Dy. Superintendent of Sadar Hospital, Daltonganj, and had conducted the post-mortem examination on the dead body of the deceased on 12.3.1990 at 10.30 A.M. and found the following ante-mortem injury on him:- 1. Fire-arm wound 2" x 11/2" x cheek depth on the left side of cheek on the middle. Edge of the wound inverted. Skin surrounding fire-arm wound scotched, tattooed with particles of unconsumed gun powder. 2. On dissection of the face and head:- Left maxillary, left zymotic, left temporal and nasal bone on the left side fractured at many places. Haematoma present inside face, head. Laceration of brain matter present. One pellet of fire-arm found inside the head. This witness has also stated that the pellet of fire arm was sealed in a vial and the same was handed over to the constable accompanying the dead body. He has stated that the death was caused due to fire arm (injury), causing shock and hemorrhage, which was sufficient to cause death of the deceased. He has identified the post-mortem report to be in his pen and signature, which was marked Exhibit-2. 10. P.W.-7, Raj Kumar Sharma is the Investigating Officer of the case. He has stated that the death was caused due to fire arm (injury), causing shock and hemorrhage, which was sufficient to cause death of the deceased. He has identified the post-mortem report to be in his pen and signature, which was marked Exhibit-2. 10. P.W.-7, Raj Kumar Sharma is the Investigating Officer of the case. This witness has stated that on 11.3.1990 he was posted as Officer-In-charge of Daltonganj Town Police Station and at about 7.35 P.M., he got the information that at Sadeek Manjil Chowk a person was murdered. He made station diary entry No. 264 dated 11.3.1990 and proceeded towards the place of occurrence. He reached Sadar Hospital via Sadeek Manjil Chowk, where he recorded the fardbeyan of Ashok Kumar. He has identified the fardbeyan to be in the handwriting of A.S.I. Surendra Singh and bearing the signature of this witness, which was marked Exhibit-3. On the basis of this fardbeyan, the formal F.I.R. was registered under the signature of the Officer-In-charge Vijay Kant Singh, which upon his identification was marked Exhibit. He had prepared the inquest report of the dead body of Kundan Singh in the presence of the witness, which he has proved and marked Exhibit-4. He took over the investigation and he recorded the re-statement of the informant. He also gave the details of the place of occurrence. He has stated that as it had rained, the blood had flown with the rainwater. He has also stated that at the distance of about 7 feet from the place of occurrence, there is an electric pole. This witness has stated that on both the sides of the road, there were shops and it is a densely populated area. From the hospital, he had sent the dead body for post-mortem examination. He recorded the statements of witnesses Sanjay Prasad and Harish Kumar @ Guddu. He had also received the post-mortem report. He had arrested two accused persons and after completing the investigation, submitted the charge sheet. In course of his cross-examination, this witness has stated that during investigation, he had not recorded the statements of the parents and brother of the deceased, nor had he recorded the statement of any Nursing Staff or Doctor of the hospital, who had given the first-aid to the deceased. He had not even seen the emergency register or Bed Head Ticket nor he seized those documents. He had not even seen the emergency register or Bed Head Ticket nor he seized those documents. He had received the sealed pellet, but the same was not sent to F.S.L. for examination. He has stated that he had not found any fired cartridge at the place of occurrence nor he had seized any firing material. He had also not prepared the sketch map of the place of occurrence. In his cross-examination, this witness has stated that he had arrested Manu Prasad and Nanhe Pande from their house on the date of occurrence itself at 9.25 P.M. and had recorded their statements. He has also stated that he had sent the accused persons to Court on 13.3.1990, as there were Holi Holidays on 11.3.1990 and 12.3.1990. He has also stated in his cross-examination that he had arrested the accused persons prior to the lodging of the formal F.I.R., as he had the power to do so. He has admitted that the elder brother of the accused Laxmi Ram was Jila Mantri of C.P.I.(M), but he did not remember whether he had got any open pamphlet printed and circulated against him for his suspension and arrest prior to the occurrence. He also did not remember whether the news about the same was also published in the Nav Bharat Times and in Prabhat Khabar. He has denied the suggestion to have falsely implicated the accused due to previous grudge and bias. In his cross-examination, this witness has also stated that the witness Harish Kumar @ Guddu had not stated before him that he had also gone to the hospital along with the deceased, rather he had stated that after informing the family members, he had gone to the hospital. He has stated that he did not remember whether the elder brother of the accused Nanhe Pande and the father of the accused Manu Prasad had got pamphlets printed against him before the occurrence and they had also sat on dharna before the D.C. Office on 16.1.1990 and the news items about his mis-behavior were also printed in the newspapers, due to which, he was aggrieved, and he has denied the suggestion that for the same reason, he had falsely implicated the accused persons. 11. 11. P.W.8 Vijay Narayan Singh and P.W.-9 Bipin Bihari Lal are the Judicial Magistrates, who had recorded the statements of the witnesses Sanjay Prasad and Harish Kumar @ Guddu, under section 164 of the Cr.P.C., 1973 which they have proved and the same were marked Exhibits-5 and 5/1. 12. The statements of the accused persons were recorded under section 313 of the Cr.P.C., 1973 in which, while denying the evidence against them, they have stated that they have been falsely implicated in this case by the police, and the defence has examined six witnesses. 13. D.W.-1 is Raj Nath Singh, who was the Junior Electrical Engineer and he had produced the Interruption Register in the Court, on the basis of which, he deposed that on 11.3.1990 there were disruptions in electric supply from 7.00 P.M. to 7.05 P.M. and again from 7.10 P.M. to 7.40 P.M. in the area of Sadeek Manjil Chowk. The relevant entry in the register was proved by this witness and the same was marked Exhibit-A. He has also proved the report, submitted by him to the higher officials about the interruption in supply of electricity, which was marked Exhibit-B. 14. D.W.-2 Krishna Deo Singh, D.W.-3 Rameshwar Prasad Gupta and D.W.-4 Gukul Basant have been examined by the defence on the point of printing and distribution of the pamphlets against the Investigating Officer, Raj Kishore Sharma and the publication of the news items in the newspapers, in order to prove his grudge and animosity against the accused persons. The pamphlet has been marked Exhibit-C and the news items have been marked Y and Y/1 for identification. 15. D.W.-5 Kalyan Ram has proved one application written by Harish Kumar @ Guddu from jail, which was marked Exhibit-D and D.W.-6 Shyam Sundar Prajapati is a formal witness, who has proved two FIRs, which were marked Exhibits-E and E/1. These FIRs and the application have been brought on record to prove the criminal antecedents of P.W.-4 Harish Kumar @ Guddu, as he was accused in these two criminal cases. Both these FIRs, however, are of the year 1992, i.e., after the present case. 16. These FIRs and the application have been brought on record to prove the criminal antecedents of P.W.-4 Harish Kumar @ Guddu, as he was accused in these two criminal cases. Both these FIRs, however, are of the year 1992, i.e., after the present case. 16. Learned counsel for the appellants has submitted that the impugned Judgment of conviction and Order of sentence, passed by the learned Court below are absolutely illegal and cannot be sustained in the eyes of law, inasmuch as, the prosecution has failed to prove the case against the accused persons beyond all reasonable doubts. It is submitted that the informant P.W.-1 Ashok Kumar, and P.W.-2 Sanjay Prasad, both the friends of the deceased, who, according to the F.I.R., as also the evidence of P.W.-4 Harish Kumar @ Guddu, were along with the deceased, and P.W.-3 Gopal Ram, the owner of the betel shop, where the occurrence took place, have turned hostile and not supported the prosecution case against the appellants, rather P.W.-1 has specifically stated that his signature was taken on a blank paper. Learned counsel, submitted that there was animosity between the family members of the accused persons and the Investigating Officer of the case, which has been proved by the defence and for that animosity, the appellants have been falsely implicated in this case. Learned counsel further submitted that at the time of occurrence it had rained and it was complete dark and there was no supply of electricity in that area, which is proved by D.W.-1 Raj Nath Singh, who is the Junior Electrical Engineer of the area, and this evidence cannot be discarded. P.W.-1 Ashok Kumar, P.W.-2 Sanjay Prasad and P.W.-3 Gopal Ram have also stated that at the time of the occurrence, it was complete dark and there was no supply of electricity. Learned counsel has pointed out that, though, P.W.-4 Harish Kumar @ Guddu, has claimed to be the eyewitness to the occurrence, but he has stated that at the time of occurrence, he was standing near the electric pole, which was at a distance of five steps from the tea shop of Awtar Singh and betel shop of Gopal Ram, but the Investigating Officer has clearly stated in his evidence that the electric pole was situated at a distance of about 7 feet. The investigating officer has also admitted that it had rained at the time of occurrence and even the blood stains were washed in the rainwater. In that view of the matter, there was absolutely no possibility for P.W.-4 Harish Kumar @ Guddu, who was standing near the electric pole at the distance of about 7 feet, to have identified the accused persons from that distance in a completely dark night. Learned counsels further submitted that even the manner of investigation, conducted by the Investigating Officer is absolutely doubtful, inasmuch as, even though, it is stated in the F.I.R. itself that the reason behind the occurrence could be known from the family members, but he has admitted that he had not recorded the statement of the any family member of the deceased, nor he had recorded the statements of the Nursing staff or the Doctor at the hospital, who had given the first aid to the deceased and these facts make the prosecution case absolutely doubtful, which support the submission that the accused persons have been falsely implicated in this case due to previous animosity by the Investigating Officer. It is also submitted by learned counsel for the appellants that admittedly the two appellants were apprehended by the police on the date of occurrence itself, at about 9.25 P.M., i.e., soon after the occurrence from their house, which clearly shows their innocence. It is also submitted they were not produced before the Magistrate within 24 hours. Learned counsels also submitted that even though P.W.-4 Harish Kumar @ Guddu has stated that he had no criminal antecedent, but the defence has been able to bring on record at least two FIRs, in which, P.W.-4 Harish Kumar @ Guddu was accused, and accordingly, it is apparent that this witness was speaking a lie and his evidence could not be relied upon. It is also submitted that even the weapon of offence was not recovered in this case. Learned counsels, accordingly, submitted that prosecution has literally failed to bring home the charge against the appellants beyond all reasonable doubts and it is a fit case, in which, the appellants ought to have been given at least the benefits of doubt. 17. It is also submitted that even the weapon of offence was not recovered in this case. Learned counsels, accordingly, submitted that prosecution has literally failed to bring home the charge against the appellants beyond all reasonable doubts and it is a fit case, in which, the appellants ought to have been given at least the benefits of doubt. 17. Learned counsel for the State, on the other hand, has opposed the prayer and has submitted that the prosecution has been able to prove all the charges against all the accused persons beyond all reasonable doubts. It is submitted that P.W.-4 Harish Kumar @ Guddu is the eyewitness to the occurrence and his presence was also admitted in the F.I.R. itself, as it is stated by the informant that when the deceased fell down upon getting fire arm injury, the informant had lifted him from the ground with the help of this witness. It is submitted that this witness has fully supported the prosecution case and has stated that all the three appellants came on a green coloured Vespa scooter and the appellant Laxmi Ram assaulted the deceased from the point blank range near his ear. His ocular evidence is fully corroborated by the medical evidence of P.W.-6 Dr. Nagendra Prasad and the post-mortem report proved by him as Exhibit-2, who had found the fire arm injury on the same site of the body as deposed by P.W.-4, with the pellet embedded in the head, and the injury was sufficient to cause death in the ordinary course of nature. Learned counsel, accordingly, submitted that there is no illegality in the impugned Judgment of conviction and Order of sentence, passed against the appellants by the learned Trial Court below. 18. Having heard learned counsels for both the sides and upon going through the record, we find that though the defence has taken the plea that the appellants have been falsely implicated in this case due to previous animosity of the Police Officer, P.W.-7 Raj Kishore Sharma, and some evidence has also been brought on record to prove this fact, but even if these allegations and evidence are kept aside for a moment, we find that the prosecution story is full of doubts. Admittedly the time of occurrence is after 7.00 P.M. and it was a cloudy night, as it had rained, and there was no electricity at the time of occurrence. Admittedly the time of occurrence is after 7.00 P.M. and it was a cloudy night, as it had rained, and there was no electricity at the time of occurrence. The witnesses have stated that it was complete dark with no electricity, which fact is also proved by D.W.-1 Raj Nath Singh, the Junior Electrical Engineer, who has stated that at that time, the electric supply was disrupted. P.W.-4 Harish Kumar @ Guddu has stated that at the time of occurrence he was standing near the electric pole, which according to P.W.-7 Raj Kishore Sharma, the Investigating Officer, was situated at a distance of about 7 feet from the place of occurrence. In such a night, in our considered view, it was not probable that the culprits could be identified by the witness from such a distance, and at least the colour, particularly the green colour, and make of the scooter could not be visible in such a night, but this witness is clearly given the colour and even the make of the scooter, which in all probability, he could not have seen in the night. In the FIR it is stated that Kundan Singh and Sanjay Prasad went to the shop for taking betel, whereas this witness has stated that Ashok Kumar and Kundan Singh went to take betel at the shop of Gopal Jee, and this creates the doubt whether he had really seen the entire occurrence clearly in the dark night. He has also stated that he had raised alarm, but no one had assembled there and there were no passersby at that time, which fact is against the evidence of the I.O., P.W.-7, Raj Kumar Sharma, who has stated that the place of occurrence is a densely populated area. The fact that the statements of the family members of the deceased were not recorded by the Investigating Officer is a very disturbing aspect of the investigation made by the I.O., and it speaks volumes against the investigation made in this case, particularly when it was stated that in the F.I.R. itself, that the reason behind the occurrence, could be disclosed by the family member only. It is absolutely strange as to why the statements of the family members of the deceased were not recorded and even the family members did not come forward to get their statements recorded either before the police or by giving appropriate application in the Court. We are of the considered view that this aspect makes the prosecution case very doubtful. This apart, we find force in the submissions of learned counsels for the appellants that even though two appellants were admittedly arrested soon after the occurrence from their house, but they were not produced before the Magistrate with 24 hours and there was no reason for that, even if the Court was closed on that date. We also find force in the submission of learned counsel for the appellants that the fact that two appellants were arrested soon after the occurrence from their house, clearly shows their innocence. Even the weapon of offence has not been seized in this case. The alleged Vespa scooter has also not been seized. Though the defence has tried to prove the criminal antecedent of P.W.-4 Harish Kumar @ Guddu, as he had stated that he had no criminal antecedent, but the FIRs proved by the defence were lodged in the year 1992, whereas this witness was examined on 27.7.1991 and 28.9.1991, and as such on this score it cannot be held that the witness had falsely stated that he had no criminal antecedent, and his deposition cannot be discarded on this score alone. However, since the attending circumstances create doubt about the prosecution case, and the fact that the prime witnesses of the case, i.e., P.W.-1 Ashok Kumar, the informant, and P.W.-2 Sanjay Prasad, both the friends of the deceased, who, were along with the deceased all along, have turned hostile and have not supported the prosecution case against the accused appellants, we are of the considered view that in the facts of the case, the prosecution has not been able to bring whom the charge against the accused persons beyond all reasonable doubts, and the appellants ought to have been given the benefits of doubt. Accordingly, the impugned Judgment of conviction and Order of sentence passed against the appellants cannot be sustained in the eyes of law. 19. Accordingly, the impugned Judgment of conviction and Order of sentence passed against the appellants cannot be sustained in the eyes of law. 19. For the foregoing reasons, the impugned Judgment of conviction and Order of sentence dated 16.12.1992, passed by the learned 2nd Additional Sessions Judge, Palamau, in Sessions Trial No. 320 of 1990, are hereby, set aside. The appellants Laxmi Ram @ Lachmi Narayan Ram, Nanhe Pande and Ishuman Kumar Gupta @ Manu Prasad, are given the benefits of doubt and they are acquitted of the charges. All these appellants are on bail. They are discharged from the liabilities of their respective bail bonds. 20. All these three appeals are accordingly, allowed. Let the Lower Court Records be sent back forthwith to the Court concerned, along with a copy of this Judgment. Appeals allowed.