RAKESH KUMAR, J.:–The present Appeal has been preferred by two appellants against judgment of conviction and sentence dated 19th February, 1994 passed in Sessions Trial No. 325 of 1993 (arising out of Bihar P.S. Case No. 105 of 1993). The learned trial judge by the impugned judgment has convicted both the appellants under Section 302 read with Section 34 of the Indian Penal Code, 1860 (hereinafter referred to as “I.P.C.”) and sentenced them to undergo rigorous imprisonment for life for offence under section 302/ 34 of the I.P.C. 2. Short fact of the case is that on 8.3.1993 at about 4.00 A.M. Sup Inspector of Police Sri Rabindra Kumar Singh / P.W. 7 recorded fardbyan of Ajay Kumar Chowdhary /P.W. 5. The fardbyan was recorded near the door of the informant. In the fardbyan the informant disclosed that on 7.3.1993 at about 10.00 P.M. (night) after taking dinner he had gone to sleep. At about 11.30 P.M. suddenly he heard the sound of his brother Arvind Kumar Chowdhary, who was raising the alarm as “chor -chor”. After hearing the sound, immediately while the informant came out from his house he heard the sound of firing. Thereafter, he ran outside and noticed that his brother Arvind Kumar Chowdhary had fallen on Earth. Thereafter, while running he reached towards west of the lane and he noticed that three accused persons, which includes the two appellants were fleeing away towards western side. He identified both the appellants and one unknown accused. He stated that while fleeing away accused persons were trying to see the informant and in that view of the matter he identified both the appellants who were co-villagers . He also identified them with their wearings. Thereafter, he returned back and he noticed that his brother Arvind Kumar Chowdhary had already died. He had received fire arm injury on his chest. The informant further disclosed that on ‘hulla’ his brothers namely, Raj Kumar Chowdhary, Bijay Kumar Chowdhary and and other villagers had arrived. He further stated that about four days earlier both appellants i.e. Kaushlendra Kumar Chowdhary and Ram Gulel Chowdhary had asked him to provide his tempo for committing some crime , which was denied by him. The informant stated that this was the reason for committing murder. He further stated that about four days earlier both appellants i.e. Kaushlendra Kumar Chowdhary and Ram Gulel Chowdhary had asked him to provide his tempo for committing some crime , which was denied by him. The informant stated that this was the reason for committing murder. The informant claimed that his brother was murdered due to aforesaid enmity and in the night of the date of occurrence again the accused persons had came to take away tempo which was protested by his brother and thereafter , he was killed by the accused persons. After recording fardbyan, which was recorded on 8.3.1993 at 4.00 A.M., a formal F.I.R. was drawn on the same day at 9.00 A.M. and as such, an F.I.R. vide Bihar P.S. Case No. 105 of 1993 was registered for offence under section 302 / 34 of the I.P.C. and section 27 of the Arms Act, 1959 (hereinafter referred to as the “Arms Act”) against three accused including the two appellants by name and one unknown. After registering F.I.R., inquest report was prepared and dead body was sent for post- mortem examination. During investigation witnesses were examined and police after investigation submitted charge-sheet against two appellants on 8.5.1993. After submission of charge- sheet the learned Magistrate took cognizance of offence and case was committed to the court of Sessions. 3. After commitment, the case was numbered as Sessions Trial No. 325 of 1993. In the case charges were framed only for offence under Section 302/ 34 of the I.P.C. No charge was framed under Section 27 of the Arms Act. The charge was framed on 2.9.1993. To prove the case prosecution examined altogether seven witnesses. Out of seven witnesses, P.W. 5 /Ajay Kumar Chowdhary was informant of the case, who proved his signature on fardbyan, which was marked as Exhibit -1/3 and he also proved signature of one of the witnesses on fardbyan and same was marked as Exhibit -¼. P.W. 1 / Tippu Chowdhary; P.W. 2/ Pyare Paswan; P.W. 3/ Raj Kumar Chowdhary and P.W. 4 / Bijay Kumar Chowdhary have come forward to state as if they had seen the appellants while fleeing away. P.W. 6/ Dr. P.W. 1 / Tippu Chowdhary; P.W. 2/ Pyare Paswan; P.W. 3/ Raj Kumar Chowdhary and P.W. 4 / Bijay Kumar Chowdhary have come forward to state as if they had seen the appellants while fleeing away. P.W. 6/ Dr. Mahadeva Dubey had conducted post-mortem examination on the dead body of the deceased and P.W. 7 /Rabindra Kumar Singh was the investigating officer of the case, who had proved the fardbyan, which was marked as Exhibit -3, formal F.I.R. (Exhibit- 4); inquest report (Exhibit- 5) , seizure list in relation to seizure of blood soaked soil from the courtyard of the informant from where dead body was recovered was marked as Exhibit -6 and blood soaked soil recovered from Harvar Mahal @ Khanda was marked as Exhibit- 6/1. Dr. Mahadeva Dubey has proved the post-mortem examination report, which was marked as Exhibit- 2. In the whole prosecution case there is none to say as to who had witnessed the actual occurrence save and except the fact that witnesses have asserted that after the occurrence two appellants along with one unknown were seen while fleeing away. Even none of the witnesses have said as to whether any of the accused persons were carrying any weapon or not. In the case there is no recovery of alleged weapon. 4. Before dealing with the entire case, it would be appropriate to deal with the evidence of the informant / Ajay Kumar Chowdhary who has been examined as P.W. 5. Ajay Kumar Chowdhary /the informant in his examination -in -chief has stated that after hearing sound of his brother he was coming out of his house. In the meanwhile, he heard sound of firing and when he came out in the lane he seen that his brother had fallen down and he further noticed that three accused were fleeing away. Out of three accused persons, he claimed to identify the two appellants who were co- villagers. During deposition this witness has given exact wearings of both the appellants. Though, it was night i.e. 11.30 P.M. nothing has been indicated as to what was the mode of identification. Whether it was moon light or the accused persons were seen in any torch light or any other means of identification. During deposition this witness has given exact wearings of both the appellants. Though, it was night i.e. 11.30 P.M. nothing has been indicated as to what was the mode of identification. Whether it was moon light or the accused persons were seen in any torch light or any other means of identification. However, this identification was not disputed seriously, but fact remains that save and except stating the fact that appellants were identified while fleeing away, the informant /P.W. 5 has not stated as to whether he had seen the appellants while committing murder or while they were fleeing away they were carrying any weapon or not. Similarly, P.W. 1 and P.W. 2 have come as chance witness and they asserted that after hearing sound of firing they came out from their houses and noticed that three accused persons were fleeing away and out of three accused persons two persons were identified by them. But even those witnesses have not stated as to whether any of the accused persons were carrying any weapon or not . P.W. 3 and P.W. 4 who are full brothers of the deceased as well as the informant during trial had come out with a new case as if they also had seen the accused persons while fleeing away. However, as per evidence of the informant as well as fardbyan, there is no reason to doubt that at the time of fleeing away at least P.W. 3 and P.W. 4 had seen any of the accused persons. 5. Sri Ramakant Sharma, learned senior counsel, assisted by Sri Rajesh Kumar, learned counsel for the appellants after placing entire evidence, both oral and documentary evidences, has argued that prosecution has not established its case beyond all reasonable doubt. He has argued that save and except presumption of involvement of the appellants, there is no other cogent evidence to connect them in the present case. He by way of referring to the evidence of P.W. 7 / Rabindra Kumar Singh (the investigating officer) has argued that even the prosecution has failed to establish the place of occurrence. By way of referring to paragraph no. He by way of referring to the evidence of P.W. 7 / Rabindra Kumar Singh (the investigating officer) has argued that even the prosecution has failed to establish the place of occurrence. By way of referring to paragraph no. 9 of the evidence of P.W. 7/ investigating officer, he has argued that investigating officer himself has stated that he had heard rumor that murder had taken place in Harbar Mahal / Khanda and thereafter, he visited the Khanda and on road side he noticed blood mark and he prepared seizure list in relation to blood soaked soil, which was signed by P.W. 2/ Pyare Paswan and his signature was identified as Exhibit -1/1. According to Sri Sharma, the investigating officer has said that after preparation of seizure list in relation to blood soaked soil from two places , same were sent for its examination to the Forensic Science Laboratory but it is a peculiar case that without any report of F.S.L. an inference has been drawn that place of occurrence was the courtyard of the house of the informant and nothing has been indicated regarding the place Harbar Mahal from where also blood soaked soil was seized. In sum and substances it has been argued that prosecution has miserably failed to establish its case beyond all reasonable doubt and in the case even if entire evidence is taken as true, hardly an inference can be drawn that only on the basis of probability the appellants have been held guilty , convicted and sentenced by the impugned judgment, which requires interference. 6. Sri Dr. Mayanand Jha, learned Additional Public Prosecutor opposing the Appeal has placed heavy reliance on the evidence of P.W. 5 i.e. informant/ Ajay Kumar Chowdhary and he submits that though in the examination-in-chief this witness has made specific statement showing involvement of the appellants, in lengthy cross-examination nothing could be extracted to create any doubt on his evidence. According to Sri Jha, even the evidence of P.W. 5 was sufficient to establish the case of prosecution, and as such, the judgment requires no interference. 7. Besides hearing, we have also perused the entire evidence on record. According to Sri Jha, even the evidence of P.W. 5 was sufficient to establish the case of prosecution, and as such, the judgment requires no interference. 7. Besides hearing, we have also perused the entire evidence on record. It is true that in the occurrence brother of the informant was done to death and dead body was sent for post- mortem examination and in the post -mortem examination entry of fire arm injury on the chest and exit injury on the back side was noticed and the doctor has found the following injuries:— “Rigor- mortis was present in all the four limbs. (1) wound of entry – A lacerated wound with everted black scorched and contused edges of size ½” x 1/2” deep to chest cavity on the left mid chest region below left nipple with blood clots. Wound of exit – A lacerated wound with everted margin of size 3/4”x1/2”x deep to chest cavity on the back of right side of chest in lower and near to the midline with blood clot. (2) An abrasion 1”x 1” on the front of chest in central position with sub- cataneous blood -drop. (3) On dissection of the chest left fourth rib was found fractured, heart- lacerated and empty. Left lung lacerated. Blood and blood clot in left and right chest cavity at thoracic vertebra fractured. Abdomen – All the viscera as pale. Stomach contained fluid of about eight ounces in process of digestion – semi digested urinary bladder – empty. (4) injury no. 2 caused by hard and blunt substance. Death in my opinion is due to shock and haemorrhage due to injury no. 1, caused by fire – arm. (5) Time elapsed since death - in between 6 to 18 hours.” 8. This Dr. Mahadeva Dubey had conducted post-mortem examination on 8.3.1993 and during trial he has stated that he had found the following injuries on the person of the deceased:— “Rigor- mortis was present in all the four limbs. (1) wound of entry – A lacerated wound with everted black scorched and contused edges of size ½” x 1/2” deep to chest cavity on the left mid chest region below left nipple with blood clots. (1) wound of entry – A lacerated wound with everted black scorched and contused edges of size ½” x 1/2” deep to chest cavity on the left mid chest region below left nipple with blood clots. Wound of exit – A lacerated wound with everted margin of size 3/4”x1/2”x deep to chest cavity on the back of right side of chest in lower and near to the midline with blood clot. (2) An abrasion 1”x1” on the front of chest in central position with sub- cantaneous blood -drop. (3) On dissection of the chest left fourth rib was found fractured. Heart – lacerated and empty. Left lung lacerated. Blood and blood clot in left and right chest. Cavity at thoracic vertebra fractured. Abdomen – All the visceras pale. Stomach contained fluid of about eight ounces in process of digestion – semi digested. Urinary bladder – empty. (4) injury no. 2 caused by hard and blunt substance. Death in my opinion is due to shock and haemorrhage due to injury no. 1, caused by fire – arm. (5) Time elapsed since death - in between 6 to 18 hour.” Dr. Mahadeo Dubey / P.W. 6 has proved the post mortem report which was marked as Ext. 2. 9. Besides this, in the evidence of P.W. 5 / Ajay Kumar Chowdhary save and except the fact that both the appellants were seen while fleeing away, there is no other material to connect them in the present occurrence. Even it was not indicated as to whether the appellants while fleeing away were carrying any weapon or not. Moreover, it is a peculiar case in which though death had occurred due to fire arm injury, the learned trial judge has not framed charge under Section 27 of the Arms Act. Only charges were framed under section 302/34 of the I.P.C. P.W. 7/ Rabindra Kumar Singh who had recorded fardbyan, investigated the case and submitted charge -sheet has also stated that he had heard rumor that murder had taken place in the Harbar Mahal and thereafter, he prepared a seizure list in relation to blood soaked soil, which was sent for F.S.L. examination, but to the reasons best known to the prosecution , in absence of any report of F.S.L. an inference was drawn as if the place of occurrence was exactly the same, which was alleged by the prosecution side. Even other witnesses have not stated any cogent thing to connect the appellants save and except the fact that appellants were seen while fleeing away. 10. In view of entire evidence as well as in absence of any material directly connecting the appellants with the crime and dispute regarding the place of occurrence, the court is of the opinion that the learned trial judge has committed error in convicting them and sentencing by the impugned judgment. The prosecution has completely failed to prove its case beyond all reasonable doubt. Accordingly, by extending benefit of doubt the judgment dated 19th February, 1994 passed in Sessions Trial No. 325 of 1993 is hereby set aside. The Appeal stands allowed. 11. The appellants are on bail and since the judgment of their conviction has been set aside, they are discharged from liability of their bail bond.