Rakesh Kumar, J. – Today again, on call, none appeared on behalf of the appellant. On last date also, there was non-appearance on behalf of the appellant, whereas, Sri Ajay Mishra, learned Additional Public Prosecutor is present. The appellant is in custody and as such, we decided not to defer the matter on the plea of absence of learned counsel for the appellant. Accordingly, the Court requested Miss Divya Verma, learned counsel, who was present in Court, to assist the Court as Amicus Curiae, and she agreed for same. 2. The present appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as the ‘Cr.P.C.’) has been preferred against judgment of conviction and sentence dated 15th February, 2012 and 17th February, 2012 respectively passed by Sri Ashok Kumar Shrivastava II, learned Additional Sessions Judge-cum-Fast Track Court – I, Munger (hereinafter referred to as the ‘Trial Judge’) in Sessions Trial No. 1080 of 2008. By the said judgment, the learned Trial Judge has held the appellant guilty and convicted him under Section 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life and fine of Rs. 10,000/- (ten thousand). In default, he has further been directed to undergo rigorous imprisonment for three months. The appellant has further been convicted under Section 27(i) of the Arms Act, 1959 (for short “Arms Act”) and sentenced to undergo rigorous imprisonment for three years with fine of Rs. 2,000/- (two thousand) and in default, to undergo further rigorous imprisonment for one month. 3. Short fact of the case is that on 13-09-2007 at about 2.00 hrs. (in the night in between 12 and 13 of September, 2007), the Sub-Inspector of Police of Munger Mufassil Police Station recorded fardbeyan of Ganesh Yadav in Sadar Hospital, Munger. In the fardbeyan, the informant disclosed that on the last night i.e. 12-09-2007 after taking meal, he was sleeping in his house, in the meanwhile, his co-villager Ramdas Yadav arrived running and informed him that Kailash Yadav was shot at near his house and he had fallen there. After getting information, the informant and his other family members came out and noticed that Kailash Yadav was lying on a cot near the house of Ramdas Yadav and profused blood was oozing from his body. After getting information, the informant and his other family members came out and noticed that Kailash Yadav was lying on a cot near the house of Ramdas Yadav and profused blood was oozing from his body. The informant stated that the injured was saying that he had gone to listen pravachan in Shiv Guru Dham and while he was returning at about 12.00 in the night, with a view to kill him, Bindeshwari Yadav, son of Chhote Lal Yadav of the same village (appellant) by country-made pistol shot him, which hit on the right rib near his neck and he fell down. Thereafter, other villagers also arrived there and injured Kailash Yadav was put on a thela and was carried to Sadar Hospital for his treatment. Due to profused bleeding, Kailash Yadav was not in complete sense. The medical officer, Sadar Hospital, Munger referred him to Patna. The informant further disclosed that on enquiry, the fact came to fore that due to old animosity, with a view to kill his brother Kailash Yadav, Bindeshwari Yadav had fired at him and injured him. He further stated that other villagers also said the same thing that Bindeshwari Yadav (appellant) had fired. After recording fardbeyan, the same was witnessed by one Balmiki Yadav (P.W.-6) and Chandan Yadav (P.W.-3). 4. After recording fardbeyan, a formal F.I.R., vide Munger Sadar Mufassil P.S. Case No. 173 of 2007, was registered on 13-09-2007 at 2.30 hrs. for offence under Sections 324, 307 of the Indian Penal Code and Section 27 of the Arms Act against the sole accused i.e. appellant Bindeshwari Yadav. The appellant was arrested in the same night, however; subsequently on 14-09-2007, the injured Kailash Yadav succumbed to his injuries in a hospital at Patna. Subsequently, Section 302 of the Indian Penal Code was added in the case. During investigation, the accusation against the sole appellant was found true and thereafter, on 11-12-2007, chargesheet was submitted against the sole accused and on the same date, the learned Magistrate took cognizance of the offence. Subsequently, after completion of all the formalities regarding supply of police paper on 06-12-2010 the case was committed to the court of sessions and thereafter, it was numbered as Sessions Trial No. 1080 of 2008. To prove the case, the prosecution examined altogether eight witnesses. Subsequently, after completion of all the formalities regarding supply of police paper on 06-12-2010 the case was committed to the court of sessions and thereafter, it was numbered as Sessions Trial No. 1080 of 2008. To prove the case, the prosecution examined altogether eight witnesses. After completion of the prosecution evidence, the evidences and circumstances, which were collected during investigation against the appellant, were explained to the appellant and firstly, on 28th March, 2011 statement of the appellant under Section 313 of the Cr.P.C. was got recorded. Thereafter, the defence also examined one witness namely Mahendra Ram, who proved certain documents and subsequently, on 23rd January, 2012, Sri Pankaj Kumar, the doctor, who had conducted post-mortem examination on the dead body of the deceased, was examined as court witness. Thereafter, again on the same date i.e. 23rd January, 2012, the statement of accused appellant was got recorded under Section 313 of the Cr.P.C. and finally, by the impugned judgment the appellant was held guilty, convicted and sentenced. 5. Miss Divya Verma, learned Amicus Curiae, after placing entire evidences i.e. oral and documentary, has argued that on the basis of evidence on record, it appears that it was a case of false implication. She submits that in the night, occurrence was not witnessed by any of the witness and a case was made out, as if deceased, after getting fire-arm injury, had made statement that he was shot at by the appellant while the deceased was returning from hearing pravachan. By way of referring to evidence of the doctor (court witness no. 1) as well as post-mortem examination report, she has argued that injury, which was found on the person of the deceased, was sufficient to show that after such injury, the deceased was not in a condition to make any statement, what to talk about such a detailed information, which has been shown to be made by the deceased before the witnesses. She further submits that in the prosecution evidence as well as defence evidence, this fact has been established that deceased and informant side were having animosity. Besides this, the informant side and the appellant were also in litigation term. Number of cases were filed from both the sides against each other and in one case, the informant, his wife and others were facing sessions trial for offence under Section 307 of the Indian Penal Code. 6. Besides this, the informant side and the appellant were also in litigation term. Number of cases were filed from both the sides against each other and in one case, the informant, his wife and others were facing sessions trial for offence under Section 307 of the Indian Penal Code. 6. Miss Verma has also argued that the prosecution case comes into the cloud of doubt merely on the basis of withholding of one of the important witness i.e. Sub-Inspector of Police Sheo Prasad Singh, who had recorded fardbeyan of the informant and took step for arresting the appellant in the same night. By way of referring to evidence of P.W.-6 Balmiki Yadav, particularly paragraph – 3, she submits that this witness has stated that the injured had disclosed the fact that he was shot at by appellant in presence of him, other witnesses & police and as such, it was mandatorily required on the part of the prosecution to examine Sheo Prasad Singh, the Sub-Inspector of Police, who after recording fardbeyan, had taken all action till the morning i.e. 7:30 A.M. on 13-09-2007. She submits that the investigating officer i.e. P.W.-7 Hans Prasad Singh in paragraph – 2 has categorically stated that at the time of recording fardbeyan, he was not there and he had taken charge of investigation at 7:30 A.M. on 13-09-2007 and this witness in the same paragraph has further stated that after getting information of occurrence, Sheo Prasad Singh had arrested accused Bindeshwari Yadav (appellant) and brought him to police station and the P.W.-7 was not present at that very time. Miss Divya Verma, learned Amicus Curiae has further highlighted the fact that deceased was not in a position to make any statement, is further corroborated from the evidence of P.W.-7 and in paragraph – 3, the investigating officer has stated that in his presence, neither statement of deceased was recorded since the injured was unconscious nor his statement was recorded by any of the police officer. Learned Amicus Curiae has further argued that even though, the appellant was arrested in the same night, the investigating officer in paragraph – 4 has stated that from the house of the appellant, no arm was recovered nor it is case of the prosecution that any arm was recovered from the possession of the appellant nor it was got exhibited. Learned Amicus Curiae has further argued that even though, the appellant was arrested in the same night, the investigating officer in paragraph – 4 has stated that from the house of the appellant, no arm was recovered nor it is case of the prosecution that any arm was recovered from the possession of the appellant nor it was got exhibited. By way of referring to evidence of P.W.-2 Manju Devi, wife of informant Ganesh Yadav, it has been argued that this witness in paragraph – 7 has accepted that about four years prior to the occurrence, the appellant Bindeshwari Yadav had lodged a case under Section 307 of the Indian Penal Code against her, her husband and younger brother of her husband. It has been argued that due to the fact that the informant and his entire family members were made accused in a case under Section 307 of the Indian Penal Code, which was lodged by the appellant and trial was going on, the informant had plotted a case to implicate the appellant and at the same time, it appears that with a view to grab the land of family member, the informant and his wife were instrumental in eliminating his younger brother Kailash Yadav, with whom, earlier there were litigation in between the informant and deceased. It has been contended that on the basis of evidences, which have been brought on record, it is a clearcut case of false implication and the appellant deserves to be granted clean acquittal. 7. Sri Ajay Mishra, learned Addl. Public Prosecutor, opposing the appeal, has argued that the case is based on ‘dying declaration’. He submits that it is consistent case of the prosecution that though occurrence of firing was not seen by any of the witnesses, the injured, who subsequently died, before his death in injured condition, had made disclosure that he was shot at by the appellant, who subsequently died and as such, considering the fact that case is based on dying declaration, the appellant deserves no latitude and appeal is required to be rejected. 8. Besides hearing learned counsel for the parties, we have examined entire evidences on record. Before proceeding further, it would be appropriate to discuss firstly evidence of the informant i.e. P.W.-5. 9. P.W.-5 Ganesh Yadav (informant) has stated that the occurrence had taken place on 12-09-2007 at about 12.00 in the night. 8. Besides hearing learned counsel for the parties, we have examined entire evidences on record. Before proceeding further, it would be appropriate to discuss firstly evidence of the informant i.e. P.W.-5. 9. P.W.-5 Ganesh Yadav (informant) has stated that the occurrence had taken place on 12-09-2007 at about 12.00 in the night. At that very time, he was sleeping in his house. Ramdas Yadav, who is P.W.-1, informed him that his brother Kailash Yadav had received fire-arm injury. Thereafter, he alongwith other family members and others went to the place of occurrence and it was noticed that Kailash Yadav was lying in injured condition on a cot of Ramdas Yadav. From his injury, profuse blood was oozing. On being asked by the informant, Kailash Yadav said that he was returning after listening shivcharcha from Sheo Guru Dham, in the meanwhile, Bindeshwari Yadav (appellant) fired on him. He was fired near the house of Ramdas Yadav and he got fire-arm injury on the right side of his neck. Thereafter, Kailash Yadav was carried to Munger Hospital. He stated that due to old animosity, Bindeshwary Yadav had fired. He stated that in Munger Hospital, police arrived and recorded his fardbeyan. He identified his signature on the fardbeyan, which was marked as Ext. ‘1’. From the said hospital, Kailash Yadav was referred to Patna, where he died during his treatment. In cross-examination, he accepted that Bindeshwari Yadav was his cousin brother and deceased Kailash Yadav was his own brother. He stated that they were three brothers, i.e. informant, Kailash Yadav (deceased) and late Dinesh Yadav, who earlier died due to ailment. He further accepted that Kailash Yadav was unmarried and Dinesh Yadav was though married, but issueless. He further stated that about 4-5 months back from the date of his deposition, which was recorded on 11-11-2009, he had sold some land, in which, all the three brothers were having share. He further stated that wife of his younger brother, after death of her husband Dinesh Yadav, had left the house. He further accepted that there was dispute in between Kailash Yadav (deceased) and him, but there was no litigation. He further stated that wife of his younger brother, after death of her husband Dinesh Yadav, had left the house. He further accepted that there was dispute in between Kailash Yadav (deceased) and him, but there was no litigation. He denied the suggestion that in the year 2007, his wife Manju Devi P.W.-2 had lodged a case, vide Mufassil P.S. Case No. 104 of 2007 against Kailash Yadav and Kailash Yadav had also filed a complaint case, vide Complaint Case No. 627C of 2007. He accepted in paragraph – 6 that a case, vide Sessions Trial No. 731 of 2005, against him, his wife and his son was going on, which was filed by the appellant Bindeshwari Yadav regarding allegation of firing on him. He further accepted that firing was not made in his presence, nor injury was received in his presence, however; he stated that in presence of Ramdas Yadav (P.W.-1), Chandan Yadav (P.W.-3) and Balmiki Yadav (P.W.-6), Kailash (deceased) had disclosed that appellant had fired. In paragraph – 8, he stated that Daroga Ji had not recorded statement of Kailash Yadav. Lastly, he denied the suggestion that with a view to grab the property, he himself killed his brother and also due to old animosity with the appellant, the appellant was falsely implicated. He also denied the suggestion that the deceased had not given any statement in his presence, since deceased was not in a position to give statement. 10. P.W.-1 Ramdas Yadav, who has been shown to be person, who firstly informed the informant regarding injury received on the person of the brother of the informant. In his evidence, he has stated that after hearing hulla and sound of firing, he reached to the place of occurrence and saw that Kailash Yadav had received fire-arm injury and he was fallen on a cot nearby his house. He further stated that Kailash disclosed that Bindeshwari had shot him by fire-arm. Thereafter, he informed the family members of the injured and injured was carried to Sadar Hospital, Munger by the family members. In paragraph – 3, he categorically accepted that he had not seen as to who had fired. In his evidence, he has further stated that police had recorded statement of Kailash Yadav (deceased ) in hospital. 11. Thereafter, he informed the family members of the injured and injured was carried to Sadar Hospital, Munger by the family members. In paragraph – 3, he categorically accepted that he had not seen as to who had fired. In his evidence, he has further stated that police had recorded statement of Kailash Yadav (deceased ) in hospital. 11. P.W.-2 Manju Devi, wife of informant Ganesh Yadav, making her statement like other witnesses, has stated that on being asked, Kailash (deceased) told that Bindeshwari had shot him and on the date he was coming from Sheo Dham and on way, he was fired by the appellant (Bindeshwari Yadav). This witness in paragraph – 7 of her cross-examination has accepted that about four years back, the appellant had lodged a case under Section 307 of the Indian Penal Code against her, her husband and younger brother of her husband and said case was pending in the same court. In paragraph – 9 of her crossexamination, she accepted that earlier Kailash Yadav (deceased) had lodged a case against her, her husband Ganesh Yadav and her son Lalo Yadav. She accepted that said case was instituted prior to lodging of the present case. 12. P.W.-3 Chandan Yadav, who was witness to the fardbeyan and it was alleged that he had also stated that in his presence the deceased had disclosed that he was shot at by the appellant, has turned hostile. However, in cross-examination, he stated that Kailash Yadav (deceased) was in relation his brother and in paragraph – 7, he stated that after hearing hulla, he went to the place of occurrence, where he noticed that Kailash Yadav was lying in unconscious stage and he was not in a condition to speak. In paragraph – 8, he stated that he lifted Kailash Yadav and he was carried to Sadar Hospital, Munger. During the said period, Kailash Yadav did not regain his consciousness. About 1:30 and 2:00 in the night, he was carried to hospital and at 4:00 in the morning, they left for Patna and reached Patna at 9:00 A.M. and injured was kept in Budha Hospital. He made categorical statement that while on way from Munger to Patna, Kailash Yadav was completely unconscious and he was not in a position to speak and in Patna, in course of treatment, at 5:00 P.M. he died. He made categorical statement that while on way from Munger to Patna, Kailash Yadav was completely unconscious and he was not in a position to speak and in Patna, in course of treatment, at 5:00 P.M. he died. Thereafter, the dead body was brought back to Munger. 13. P.W.-4 Pramod Yadav in his examination-in-chief has simply said that in the night of the occurrence, on hulla, he reached to the place of occurrence, which was near the house of Ramdas Yadav and he saw the injured Kailash Yadav, who was lying on a cot. He was carried to Munger Sadar Hospital. He had received fire-arm injury on his chest. In paragraph – 2, he stated that he was not knowing as to who had shot him. In cross-examination in paragraph – 11, he accepted that he had not seen any person firing on deceased. When he arrived at that very time, Kailash Yadav was unconscious and after receiving injuries, he never gained consciousness. He further stated that Kailash Yadav in his presence had not named anyone. Though, this witness had made categorical statement that the injured deceased was not in a position to make any statement, the prosecution had not bothered to cross-examine him. 14. P.W.-6 Balimiki Yadav in his examination-in-chief has stated that he heard rumour that Kailash Yadav had received fire-arm injury, who was carried to hospital on trolley i.e. Munger Hospital and thereafter, for better treatment, he was carried to Patna. One day thereafter, he died. The deceased had received fire-arm injury on his chest. He has accepted that in between Kailash Yadav and Bindeshwari Yadav, there was dispute. Though, in examination-in-chief, he did not whisper as to whether deceased had made any statement that he was shot at by the appellant, in cross-examination, he stated in paragraph – 3 that Kailash Yadav, while he was being carried to hospital, had said that Bindeshwari had fired on him. This witness stated that the deceased had made such statement in presence of Ramdas Yadav (P.W.-1), Ganesh Yadav (P.W.-5, informant), Chandan (P.W.-3) and police personnel. He clarified that this fact was stated in Sadar Hospital Munger and same thing was said, while he was being carried to Patna. 15. Surprisingly, the prosecution had examined an Advocate’s clerk namely Surendra Yadav to prove the postmortem examination report. He clarified that this fact was stated in Sadar Hospital Munger and same thing was said, while he was being carried to Patna. 15. Surprisingly, the prosecution had examined an Advocate’s clerk namely Surendra Yadav to prove the postmortem examination report. Fact remains that on the dead body of the deceased, post-mortem examination was conducted in P.M.C.H. but an Advocate’s clerk of Munger court has proved the post-mortem examination report, which was marked as Ext. ‘4’. 16. The investigating officer Hans Prasad Singh was examined as P.W.-7. He proved the fardbeyan, which was marked as Ext. ‘2’ and formal F.I.R. was proved by him as Ext. ‘3’. According to evidence of this witness, it is evident that deceased was not shot at within the premises of the Ramdas Yadav, rather the evidence has come that blood mark was found near the road side and some blood mark was found in the open shade within the campus of Ramdas Yadav. On examination of his evidence, it is difficult to perceive as to which was the exact place of occurrence. This witness in examination-in-chief has stated that he had found blood mark on the southern portion of the cot. It is necessary to highlight that it is prosecution case that the deceased after getting injury had fallen on the cot of Ramdas Yadav and number of witnesses had said that profuse bleeding was continuing and in such situation, the investigating officer had only noticed some blood mark on the cot. In such cases, there was possibility to find huge quantity of blood at the place where the injured after getting fire-arm injury was lying on the cot. This investigating officer has accepted that he has taken charge of investigation at 7:30 morning on 13-09-2007 and he accepted that before he took the charge of investigation, the appellant was already arrested and fardbeyan was got recorded by Sub-Inspector of Police Sheo Prasad Singh. However, to the reasons best known to the prosecution, the said witness was not examined by the prosecution, at least to prove the fardbeyan or even formal F.I.R. This witness in paragraph – 3 of his cross-examination has made categorical statement that statement of victim was not recorded in his presence nor it was recorded in presence of any of the police officials, since the injured was unconscious. He further stated that no arm was recovered from the house of the accused/appellant, whereas fact remains that in the same night, the appellant was arrested by the police. After completion of the prosecution evidence, the defence also examined one witness namely Mahendra Ram as D.W.-1, who proved certified copy of F.I.R. of Munger Sadar Mufassil P.S. Case No. 187 of 2009 dated 15-07-2009, in which, deceased Kailash Yadav was informant and in the said case, the informant of the present case Ganesh Yadav, one of the wife of Ganesh Yadav namely Urmila Yadav and Lalo Yadav, son of Ganesh Yadav were made accused. The said F.I.R. was registered for offence under Sections 323, 341, 307, 379, 504 of the Indian Penal Code and Section 27 of the Arms Act, which was registered on the basis of order of the learned Magistrate under Section 156(3) of the Cr.P.C., since earlier on 20-06-2007, a complaint petition was filed by the deceased Kailsh Yadav, which was numbered as Complaint Case No. 627C of 2007. This F.I.R. was got exhibited and marked as Ext. ‘A’. Similarly, D.W.-1 proved certified copy of F.I.R. in Munger Sadar Mufassil P.S. Case No. 252 of 2002 registered for offence under Section 341, 332, 448, 326, 307, 504, 34 of the Indian Penal Code and Section 27 of the Arms Act, in which, the present appellant (Bindeshwari Yadav) was informant and informant of the present case i.e. Ganesh Yadav, his brother Dinesh Yadav and his younger brother Kailash Yadav (deceased) were made F.I.R. named accused on an allegation that the appellant was shot at by the informant side of the present case. Certified copy of order of cognizance dated 01-02-2003 in Sessions Trial No. 731 of 2005 was also got exhibited which was marked as Ext. C, which shows that after submission of chargesheet, the learned Magistrate had taken cognizance of offences under Sections 341, 323, 448, 326, 307, 504/34 of the Indian Penal Code against (1) Anjuli Devi, (2) Ganesh Yadav, informant of the present case, (3) Dinesh Yadav, brother of Ganesh Yadav, (4) Kailash Yadav (deceased), brother of the informant and one another accused namely Devki Yadav. The D.W.-1 has also proved F.I.R. in Munger Sadar Mufassil P.S. Case No. 104 of 2007 registered on 04-06-2007 under Sections 323, 341, 379, 34 of the Indian Penal Code, in which, P.W.-2 Manju Devi, wife of the informant of the present case was informant and Kailash Yadav (deceased) and Balimik Yadav (P.W.-6) were named as F.I.R. accused. Thereafter, statement of accused appellant under Section 313 Cr.P.C. was recorded on 28th March, 2011. 17. After closure of the defence evidence and statement of accused under Section 313 Cr.P.C., Sri Pankaj Kumar, the doctor, who conducted post-mortem examination on the dead body of the deceased, was examined as court witness i.e. court witness no. 1. On 14-09-2007, he was posted in Forensic Science Department, P.M.C.H., Patna and on the same date at 1:30 PM, he conducted post-mortem examination on the dead body of Kailash Yadav and found following ante-mortem injuries: – “(1) One entry wound 1” x ¾” Rt. clavicular area upper part of chest, 1” Rt. of midline, 6” above right nipple, margin inverted & lacerated, cavity deep with tatooing 16”x10” both sides of chest and shoulder region, causing a track with fracture right clavicle, right lung was found pierced with blood in right chest cavity, second right rib pierced (posterior) and a metallic object like bullet was found and removed from the muscle of right scapular region, 3” right from the mid line 3½” below right shoulder level, the bullet was placed in a clean glass vial was properly lavelled & sealed and handed over to the Constable to hand it over to the I.O. concerned. (2) One stitch wound ½” long on right chest 3½” below right axilla 4” right from right nipple for drainage tube.” 18. After examination of the doctor, as court witness, again statement of the appellant was got recorded under Section 313 of the Cr.P.C. and surprisingly, incorrect circumstance and evidence, which were not on record, was explained to the appellant and his statement under Section 313 Cr.P.C. was got recorded on second occasion on 23rd January, 2012. Earlier, his statement under Section 313 Cr.P.C. was recorded on 28th March, 2011. It would be better to incorporate both statement of the appellant recorded under Section 313 of the Cr.P.C., which are as follows: – (Statement u/s 313 Cr.P.C. dt. Earlier, his statement under Section 313 Cr.P.C. was recorded on 28th March, 2011. It would be better to incorporate both statement of the appellant recorded under Section 313 of the Cr.P.C., which are as follows: – (Statement u/s 313 Cr.P.C. dt. 28th March, 2011) ^^Á'u & D;k vkius xokgksa dk c;ku lqukA mÙkj & th gkaA Á'u & xokgksa dk dFku gS fd vkius fnukad 12-09-2007 ds jkf= esa jkenkl ;kno] lkfdu&e] Fkkuk & eqQfly] ftyk eqaxsj ds ?kj ds ikl dSyk'k ;kno dks xksyh ekjdj mlds nkfgus xyk esa t[e igqapk;k ftldk bZykt ds nkSjku ihŒ,eŒlhŒ,pŒ esa e`R;q gks x;hA mÙkj & xyr gSA Á'u & vfHk;kstu la[;k&2 eatw nsoh dk dFku gS fd fnukad 12-09-2007 dks 12 cts jkf= esa jkenkl ;kno }kjk crkus ij og vius ifr ds lkFk ogka jkenkl ds pkSdh ij dSyk'k ;kno dks fxjk gqvk ns[kk] iwNus ij dSyk'k us dgk fd foUns'ojh us eq>s xksyh ekjk tc og f'ko/kke n'kZu dj ykSV jgk Fkk jkLrs esa mls xksyh yx x;kA mÙkj & xyr gSA Á'u & vfHk;kstu lk{kh la[;k&4 Áeksn ;kno dk dFku gS fd 25 eghuk igys 11 cts jkr esa gYyk ij tc og jkenkl ;kno ds ?kj ij vk;s rks ns[kk fd dSyk'k ;kno] jkenkl ds pkSdh ij fxjk gqvk Fkk vkSj mlds lhus esa xksyh dk t[e FkkA D;k dguk gS\ mÙkj & xyr gSA Á'u & vfHk;kstu lk{kh la[;k&5 x.ks'k ;kno dk dFku gS fd fnukad 12-09-2007 dks 12 cts jkr dks jkenkl ;kno ds crkus ij og vius ifjokj vkSj vU; yksxksa ds lkFk x;k rks ns[kk fd esjk HkkbZ dSyk'k ;kno] jkenkl ds pkSdh ij fxjk Fkk lk{kh }kjk iwNus ij dSyk'k ;kno cksyk fd og f'koxq:/kke ls f'koppkZ lqudj okil ykSV jgk Fkk fd fonsU'ojh ;kno us mls xksyh ekj fn;kA jkenkl ds ?kj ds ikl xksyh dk t[e nkfguk rjQ xyk ds ikl ns[kkA ;g xksyh iwoZ nq'euh ds dkj.k fonsU'ojh ;kno ekjkA D;k dguk gS\ mÙkj & xyr gSA Á'u & lQkbZ esa D;k dguk gS\ mÙkj & funksZ"k gSaA iqjkuk nq'euh ls Qalk;k gSA** (Now, statement u/s 313 Cr.P.C. dt. 23rd January, 2012) ^^1- Á'u & D;k vkius xokgksa dk c;ku lquk gSA mÙkj & th gka 2- Á'u & xokgksa dk dFku gS fd vkius fnukad 12-09-2007 ds jkf= esa jkenkl] lkfdu&e] Fkkuk & eqQfly] ftyk & eqaxsj ds ?kj ds ikl dSyk'k ;kno dks xksyh ekjdj mlds nkfgus xyk esa t[e igqapk;kA ftls bykt ds nkSjku ihŒ,eŒlhŒ,pŒ esa e`R;q gks xbZ D;k dguk gSA mÙkj & xyr gSA 3- Á'u & vfHk;kstu la[;k&2 eatw nsoh dk dFku gS fd 12-09-2007 dks 12 cts jkf= esa jkenkl }kjk crkus ij og vius ifr ds lkFk ogka jkenkl ds pkSdh ij dSyk'k ;kno dks fxjk gqvk ns[kk iwNus ij dSyk'k us dgk fd fonsU'ojh us eq>s xksyh ekjk tc og f'ko/kke n'kZu dj ykSV jgk Fkk jkLrs esa mls xksyh yx x;kA mÙkj & xyr gSA 4- Á'u & vfHk;kstu lk{kh la[;k&4 Áeksn ;kno dk dFku gS fd 25 eghuk igys 11 cts jkr esa gYyk ij tc og jkenkl ;kno ds ?kj vk;s rks ns[kk fd dSyk'k ;kno] jkenkl ds pkSdh ij fxjk gqvk Fkk vkSj mlds lhus esa xksyh dk t[e Fkk D;k dguk gSA mÙkj & xyr gSA 5- Á'u & vfHk;kstu lk{kh la[;k&5 x.ks'k ;kno dk dFku gS fd fnukad 12-09-2007 dks 12 cts jkr dks jkenkl ;kno ds crkus ij vius ifjokj vkSj vU; yksxksa ds lkFk x;k rks ns[kk fd esjk HkkbZ dSyk'k ;kno] jkenkl ds pkSdh ij fxjk Fkk lk{kh }kjk iwNus ij dSyk'k ;kno cksyk fd og f'koxq: /kke ls f'ko pPkkZ lqudj okil ykSV jgk Fkk fd foUns'ojh ;kno us xksyh ekj fn;kA jkenkl ds ?kj ds ikl xksyh dk t[e nkfgus xyk ds ikl ns[kk tks xksyh e`rd ds iksLVekVZe ds nkSjku lhus ds Hkhrjh Hkkx ls fudkyk x;kA ;g xksyh iwoZ nq'euh ds dkj.k foUns'ojh ;kno us vkius ekjkA D;k dguk gSA mÙkj & xyr gSA 6- Á'u & lQkbZ esa D;k dguk gSA mÙkj & funksZ"k gSaA iqjkuk nq'euh ls Qalk;k gSA** 19. On the second occasion, while statement of the appellant under Section 313 of the Cr.P.C. was got recorded, in paragraph – 5 without any basis, it was suggested as if deceased had received fire-arm injury on the right neck and said cartridge was recovered at the time of post-mortem from the chest, whereas, there was no such injury showing entry of fire-arm on the neck of the deceased, rather there was one another entry injury, which was found on the chest of the deceased, which is evident from the evidence of court witness no. 1. This suggests that the prosecution was adamant to prove its case by either means. 20. After going through the entire evidence, one thing is not in dispute that occurrence was not seen by any of the witnesses. Subsequently, a case was developed as if deceased before death had made a disclosure and in that disclosure, it was stated that he was shot at by the appellant, whereas, there are consistent evidences that after receiving injury, the deceased was not in a condition to make such statement. This fact is also further evident from post-mortem examination report. It would be necessary to quote post-mortem examination report, which is as follows: – “(1) One Entry wound 1” x ¾” Rt. clavicular area upper part of chest, 1” Rt. of midline, 6” above Rt. nipple, margin inverted & lacerated, cavity deep with tatooing 16”x10” both sides of chest and shoulder region, forming a track with fracture Rt. Clavicle, Rt. lung was found pierced with blood in Rt. Chest cavity, 2nd right rib pierced (posterior) and a metallic object like bullet was found and removed from the muscle of Rt scapular region, 3” Rt. from midline 3 ½” below Rt. shoulder level, the bullet in a clean glass vial was properly labelled & sealed and handed over to the Constable to hand it to the I.O. concerned. (2) One stitch wound ½” long on Rt. chest 3½” below Rt. axilla, 4” Rt. from Rt. nipple for drainage tube. Opinion – (1) Time since death – 6-24 hrs. approx. (2) Cause of death – Haemorrhage and shock, due to above-mentioned injury. (3) Nature of violence – Fire arm. Opinion regarding injury no. 2 can also be obtained from the Surgeon concerned.” 21. chest 3½” below Rt. axilla, 4” Rt. from Rt. nipple for drainage tube. Opinion – (1) Time since death – 6-24 hrs. approx. (2) Cause of death – Haemorrhage and shock, due to above-mentioned injury. (3) Nature of violence – Fire arm. Opinion regarding injury no. 2 can also be obtained from the Surgeon concerned.” 21. On examination of post-mortem examination report, it is evident that bullet had penetrated into the lungs of the deceased and huge blood was found in the cavity of the chest. After getting such injury, in normal course, it would not be possible for anyone to make any statement, however; in the present case, it has been pretended as if the deceased after getting such injury was in a condition to make a detailed statement that he had gone to listen pravachan and while he was returning on way, due to old animosity, he was shot at by the appellant. Besides this, the evidence of investigating officer makes it clear that deceased was unconscious and not in a position to make statement. 22. Considering the fact that entire prosecution case was based on the fact as if deceased had disclosed that the appellant had fired and this evidence has not been proved beyond all reasonable doubt, certainly there was no reason for the Trial Court to convict the appellant. Moreover, there is evidence of animosity in between the informant’s side and the deceased and also in between the appellant and informant. So, possibility of false implication may not be ruled out. 23. In view of facts and circumstances, the Court is of the considered opinion that the appellant deserves to be acquitted. 24. Accordingly, the judgment of conviction and sentence dated 15.02.2012 and 17.02.2012 respectively passed by Sri Ashok Kumar Shrivastava II, learned Addl. Sessions Judge/Fast Track Court - Ist, Munger in Sessions Trial No. 1080 of 2008 (arising out of Munger Muffasil P.S. Case No. 173 of 2007, G.R. No. 1519 of 2007) are, hereby, set aside and appeal is allowed. 25. Since the appellant is inside jail, he is directed to be released forthwith, if not wanted in any other case. 26. Before parting, we must record that Miss Divya Verma, learned Amicus Curiae has rendered appreciable assistance to the Court.