JUDGMENT : RAKESH KUMAR, J. 1. The present appeal has been preferred by aforesaid five appellants against judgment of conviction and sentence in Sessions Trial No. 133 of 2011 (arising out of Biraul P.S. Case No. 38 of 2008) passed by learned Additional Sessions Judge, Benipur, Darbhanga (hereinafter referred to as Trial Judge). By judgment dated 26.04.2013, all the appellants were convicted for commission of offence under Sections 147, 148, 323, 325, 302/149, 504, 307/149, 504 & 307/149 of the Indian Penal Code, 1860 (hereinafter referred to as I.P.C.), whereas Md. Nizam (appellant no. 1) and Md. Naushad (appellant no. 2) were further convicted by the same judgment i.e. judgment dated 26.04.2013 for commission of offence under Section 27 of the Arms Act, 1959 (hereinafter referred to as Arms Act). By order of sentence dated 30.04.2013, under Section 302/149 of the I.P.C. all the appellant were directed to undergo imprisonment for life and to pay a fine of Rs. 5000/-(five thousand) each, for commission of offence under Sections 307/149 of the I.P.C. all were sentenced to undergo rigorous imprisonment for 7 years, under Section 504 of the I.P.C. all the appellants were sentenced to undergo rigorous imprisonment for 2 years, under Section 325 of the I.P.C. all the appellants were directed to undergo rigorous imprisonment for three years, under Section 323 of the I.P.C. all the appellants were directed to undergo rigorous imprisonment for one year, under Section 148 of the I.P.C. all the appellants were directed to undergo rigorous imprisonment for three years and under Section 147 of the I.P.C. all the appellants were directed to undergo rigorous imprisonment for two years. For commission of offence under Section 27 of the Arms Act, by order dated 30.04.2013, appellant no. 1 Md. Nizam and appellant no. 2 Md. Naushad were directed to undergo rigorous imprisonment for three years. In case of non-payment of fine, they were directed to further undergo rigorous imprisonment for six months. All the sentences were directed to run concurrently. The judgment of conviction and sentence was passed by Sri Abhay Kumar Bariyal, learned Additional Sessions Judge, Benipur, Darbhanga. 2. Short fact of the case is that on 25.04.2008 at 13:15 hrs. (1:15 PM), the S.H.O. Biraul Police Station, namely, Md. Sannaullah (PW-9) recorded fardbeyan of Md. Hussain (PW-6), son of late Md. Farooq (deceased) resident of village Paghari, P.S. Biraul, District-Darbhanga. 2. Short fact of the case is that on 25.04.2008 at 13:15 hrs. (1:15 PM), the S.H.O. Biraul Police Station, namely, Md. Sannaullah (PW-9) recorded fardbeyan of Md. Hussain (PW-6), son of late Md. Farooq (deceased) resident of village Paghari, P.S. Biraul, District-Darbhanga. The fardbeyan was recorded in the house of the informant. The informant, near the dead body of his father, gave fardbeyan in his house to S.H.O. Md. Sannaullah (PW-9) and stated that his grandfather Ismail Naddaf @ Musharu (PW-3) had gone to his field in Marghatiya Bandh, where he C, K [ksnoticed that one buffalo was grazing his moong field, thereafter he inquired from bathaniya i.e. charwaha as to who is the bathaniya of said buffalo. Since he was not given any reply, he carried the said buffalo to his door and tied it. After some time, about 12:00 noon, Md. Naushad (appellant no. 2) reached his house and stated that he has brought bathaniya (charwaha) and asked to free the buffalo, however since bathaniya was not present, his grandfather stated that only after the arrival of bathaniya, he will free the buffalo. On hearing this, Md. Naushad (appellant no. 2) agitated and abusing and threatening his grandfather returned back. Within few minutes, forming an unlawful assembly (i) Md. Nizam (appellant no. 1) carrying country-made gun, (ii) Md. Naushad (appellant no. 2) carrying country-made gun, (iii) Md. Sanjeet (appellant no. 3) carrying lathi (all above three appellants are son of late Noor Mohammad), (iv) Md. Majbul (appellant no. 4) son of Md. Muslim and (v) Md. Ali Bux (appellant no. 5) son of Md. Farid carrying lathi arrived there using filthy words and asked to show the field, which was grazed by said buffalo. Thereafter, his uncle Md. Naddaf (PW-5) proceeded to the said field and thereafter, all the accused persons with lathi and butt of the gun, with intent to kill him, started assaulting him and broke his left leg. When informant’s father proceeded to save him, Md. Nizam (appellant no. 1) gave shot of firing from his gun, which hit the chest of his father and he fell down and started squirming. Then, all the accused persons after firing fled towards eastern side. In the meanwhile, his father had already died at the place of occurrence and his uncle was seriously injured. His uncle was carried to hospital for his treatment. Then, all the accused persons after firing fled towards eastern side. In the meanwhile, his father had already died at the place of occurrence and his uncle was seriously injured. His uncle was carried to hospital for his treatment. The informant claimed that said occurrence was seen by Md. Manjoor (not examined), Md. Hakim (not examined), Md. Majid (not examined) and several other persons. The said fardbeyan was read over to him and after finding it correct, in presence of Md. Manjoor, he put his signature. The said fardbeyan was also signed as witness by Md. Manjoor (not examined). 3. On the basis of said fardbeyan, on the same date i.e. 25.04.2008 at 15:00 hrs (3:00 PM), a formal F.I.R. vide Biraul P.S. Case No. 38 of 2008, was registered under Section 147, 148, 149, 323, 324, 307, 302 & 504 of the I.P.C. and Section 27 of the Arms Act against all the aforesaid five appellants. After investigation and finding the case true, on 31.07.2008 chargesheet was submitted against all the five appellants showing Md. Nizam (appellant no. 1) as absconder. After submission of chargesheet, on 06.08.2008 learned S.D.J.M. Biraul (Darbhanga) took cognizance of the offence and case was committed to the court of sessions on 11.02.2011, which was numbered as Sessions Trial No. 133 of 2011. On 02.03.2012, joint charges against all the appellants were framed under Sections 302/149, 504, 307/149, 147, 148, 323, 325 of the I.P.C. and against appellant no. 1 (Md. Nizam) and appellant no. 2 (Md. Naushad), charge under Section 27 of the Arms Act was also framed. 4. During the trial, to prove its case on behalf of the prosecution, altogether 9 witnesses were examined. In the case, except formal witnesses and official witnesses, all prosecution witnesses are close relatives of the informant and deceased. PW-1 Sabila Khatoon (wife of the deceased), PW-2 Amina Khatoon (mother of the deceased), PW-3 Ismail Naddaf @ Musharu (father of the deceased), PW-5 Md. Naddaf (brother of the deceased) and PW-6 Md. Hussain (son of the deceased and informant of the case) have claimed to be ocular witness to the occurrence. PW-4 Vishwanath Yadav is a formal witness and is witness to inquest report and he proved his signature on the inquest report, which was marked as Ext. 1. PW-7 Dr. Naddaf (brother of the deceased) and PW-6 Md. Hussain (son of the deceased and informant of the case) have claimed to be ocular witness to the occurrence. PW-4 Vishwanath Yadav is a formal witness and is witness to inquest report and he proved his signature on the inquest report, which was marked as Ext. 1. PW-7 Dr. Mahesh Kumar, who on 25.04.2008 was posted as Specialist Medical Officer, Primary Health Centre, Biraul, had examined injury of PW-5 Md. Naddaf and he had referred the injured to D.M.C.H. Darbhanga. PW-8 Dr. Arvind Kumar, who was posted on 26.04.2008 as Assistant Professor, F.M.T. Department, D.M.C.H. Darbhanga, conducted post-mortem on the dead body of the deceased and PW-9 Md. Sannaullah, who on 25.04.2008 was posted as officer in-charge of Biraul Police Station, is the investigating officer of the case. 5. After completion of the prosecution evidence, statement of accused under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.) was recorded on 06.12.2012, in which, they claimed to be innocent. However, from defence side, no defence witness has been examined. 6. Sri Hemendra Prasad Singh, learned senior counsel assisted by Dr. Abdus Shakoor, learned counsel for the appellant, after referring to entire evidence, has argued that prosecution has not been able to prove its case beyond all reasonable doubt and as such, it was a fit case for acquittal, however learned Trial Judge has incorrectly passed judgment of conviction and sentence, which requires interference. It has been argued that it appears that deceased, since was having criminal antecedent, was done to death by some of his enemies at a different place and thereafter, his dead body was carried from the place of occurrence by the family member of the deceased and put near his door, where inquest report was prepared. According to learned senior counsel, in the case, there were three place of occurrence, however prosecution has not been able to prove even one place of occurrence by cogent evidence. According to Sri Singh, learned senior counsel, first place of occurrence as per prosecution case was moong field of grandfather of the informant, which was allegedly grazed by a buffalo. He submits that as per prosecution, this was the genesis of the crime. According to Sri Singh, learned senior counsel, first place of occurrence as per prosecution case was moong field of grandfather of the informant, which was allegedly grazed by a buffalo. He submits that as per prosecution, this was the genesis of the crime. He submits that though, from very inception, the prosecution has come out with a case that since the moong field of grandfather of the informant was grazed by a buffalo, his grandfather (PW-3) had carried the buffalo from the field to his house and tied it. Thereafter, appellant no. 2 Md. Naushad arrived there and asked to free the buffalo. Since it was not done, Naushad (appellant no. 2) abusing PW-3 and threatening returned back and within few minutes with all other four appellants variously armed came to the door of the informant and asked to show the filed, which was allegedly grazed by the said buffalo. It has been argued by learned senior counsel for the appellants that the prosecution further has come out that after hearing this fact, PW-5 Md. Naddaf (brother of the deceased) proceeded to show the filed, however; about 50-60 yards away from the door, all the aforesaid appellants started assaulting him. Then, father of the informant and brother of PW-5 namely Md. Farooq (deceased) reached there with a view to save his brother. Thereafter, the accused persons gave gun shot injury to him, whereupon he fell down and then all the accused persons started assaulting him by means of lathi till his death. It is case of the prosecution that immediately thereafter, the family member of the deceased carried the dead body and put the dead body near the door of the informant, whereas the injured (PW-5) on a cot was sent to hospital for his treatment. During investigation, the investigating officer (PW-9) did not bother to investigate as to whether the genesis of the prosecution case was to be proved or not and this was the reason that investigating officer has not whispered anything as to whether the moong field of grandfather of the informant was earlier grazed by buffalo or not nor he examined any witness on the said issue i.e. carrying of buffalo from the field to the house of the informant. In respect of second place of occurrence i.e. the place, where PW-5 was initially assaulted and on which place, deceased was done to death, which was the moong field of one Bhup Narayan Jha (not examined). The investigating officer (PW-9) in his evidence has stated that he visited the field of Bhup Narayan Jha, where the occurrence had taken place, but he had neither whispered about trampling of moong field or noticing of blood or any blood mark at the main place of occurrence. According to Sri Singh, in absence of such evidence, the prosecution had miserably failed to establish the main place of occurrence. He further submits that third place of occurrence is the door of the informant, where dead body was carried within five minutes from the occurrence and was laid, however; the investigating officer has neither noticed any blood or clot of blood at the place i.e. door of the informant where dead body was laid nor he noticed any blood mark from the place of occurrence to the door of the informant. It has been argued by learned senior counsel for the appellants that in a case, in which, after gun shot injury within few minutes the dead body from the place of occurrence was carried to the door, which was at the distance of about 50-60 yards, there was every possibility to notice any mark of percolated blood, since in such injury, there was every possibility of percolating of blood from injury of the deceased while it was being carried from the place of occurrence to the door. The investigating officer has not noticed any blood mark from the place of occurrence to the place i.e. door of the informant where dead body was lying nor at the place, where dead body was lying i.e. door. 7. Sri Hemendra Prasad Singh, learned senior counsel for the appellants has further argued that in the case, the informant (son of the deceased) has come forward as star witness, however on examining his cross-examination, it appears that he was not truthful witness. He submits that this witness in his evidence had stated that the injured on a cot was carried to hospital for treatment, but on being asked, he simply replied that he was not remembering the name of any person, who was carrying the injured to the hospital. He submits that this witness in his evidence had stated that the injured on a cot was carried to hospital for treatment, but on being asked, he simply replied that he was not remembering the name of any person, who was carrying the injured to the hospital. Even he was not recollecting the name of person, who supported him in carrying dead body from the place of occurrence to the door. In the fardbeyan, PW-6 (informant) had claimed that occurrence was seen by Md. Manjoor, Md. Hakim, Md. Majid and other number of persons, however during trial, the prosecution has not produced any such witness, what to talk about the evidence of Md. Hakim, Md. Majid or Md. Manjoor. He has raised suspicion on the conduct of the investigating officer, particularly; on the point that once in the fardbeyan itself, the informant had disclosed that occurrence was seen by at least three named witnesses i.e. Md. Manjoor, Md. Hakim, Md. Majid, there was no reason for not citing them as witness to the chargesheet. He submits that surprisingly, in the case after investigation, the investigating officer has cited only those witnesses, who were examined as prosecution witnesses, during the trial. According to learned senior counsel for the appellants, non-examination of those witnesses certainly suggests that the prosecution with oblique motive has suppressed those evidence. He submits that had the villagers come forward and deposed, they would have certainly stated about the truth. It has been reiterated that in such circumstances, there is every possibility that deceased was done to death at a different place and subsequently, the dead body was put near the door of the informant, where inquest report was prepared and since there was already animosity in between the appellants side and informant side, they (appellants) have been fixed as accused by the prosecution side. Learned senior counsel for the appellants has also highlighted that the investigating officer though had claimed to seize two fired cartridges of gun of 12 bore, to the reasons best known to the investigating officer, those material exhibits were never produced during the trial. The investigating officer himself has admitted that he had not sent the said so-called seized fired cartridges to Forensic Science Laboratory or to Ballistic expert. The investigating officer himself has admitted that he had not sent the said so-called seized fired cartridges to Forensic Science Laboratory or to Ballistic expert. In view of all such circumstances, which have been explained by learned senior counsel, it has been argued that the prosecution has not been able to establish its case beyond all reasonable doubt and as such, it was a fit case for acquittal, however; learned Trial Judge has incorrectly passed the judgment of conviction and sentence. 8. Sri Ajay Mishra, learned Addl. Public Prosecutor opposing the appeal has argued that in the case, evidence of PW-6 informant was itself sufficient to hold all the appellants guilty and this is the reason that learned Trial Judge has rightly passed the judgment of conviction and sentence. According to Sri Mishra, the main occurrence had taken place only at the distance of 50-60 yards from the door of the informant and this was the reason that occurrence was seen by almost all the inmates of the family, who have deposed during the trial and as such, their evidence may not be ignored. As per learned Addl. Public Prosecutor, the oral evidence has also been corroborated during the medical evidence i.e. post-mortem examination. He submits that during postmortem, besides gun shot injury on the chest of the deceased, multiple injuries were found on the person of the deceased and as such, the learned Trial Judge has rightly passed the judgment of conviction and sentence. 9. Besides hearing, learned counsel for the parties, we have minutely examined the entire evidence on record. Before proceeding further, it would be necessary to examine as to what the informant (PW-6) had stated in his fardbeyan as well as during evidence. 10. In the fardbeyan, the informant (PW-6) had stated, as if, he saw that one gun shot injury was given on the chest of his father and immediately thereafter, all the accused persons (appellants) after firing fled away. However, during evidence, he developed a story to the extent that firstly his uncle was being assaulted by the appellants and while his father (deceased) went there to save him, he was brutally assaulted by means of lathi and he was also given gun shot injury on the chest. However, during evidence, he developed a story to the extent that firstly his uncle was being assaulted by the appellants and while his father (deceased) went there to save him, he was brutally assaulted by means of lathi and he was also given gun shot injury on the chest. He stated that in the occurrence, the appellants, by way of assaulting, had broken left leg of his uncle, thereafter, he raised alarm and cried and after hearing the cry, his father went there to save his uncle, then all the accused persons, leaving his uncle Naddaf (PW-5), started assaulting his father by means to lathi and kunda (butt of gun) and in the said occurrence, Md. Nizam (appellant no. 1), who was carrying gun in his hand, gave gun shot injury, which hit the chest of his father. After receiving gun shot injury, his father fell down. Even thereafter, the accused persons went on assaulting him till his last breath and finding that his father was dead, all the accused persons by firing fled away. In paragraph – 3 of his evidence, he stated that he alongwith others reached at the place of occurrence and found his uncle in injured condition, who was put on a cot and carried to Biraul Hospital for his treatment. The dead body of his father was lifted and brought to the door, where his dead body was laid down. Thereafter, Biraul police arrived there and near the dead body of his father, his fardbeyan was recorded. He proved the fardbeyan, which was marked as Ext.2. In his presence, the fired cartridge was seized and on the said seizure list, one Kari Jha and Atul Chand Jha had put their signature and he proved those signature, which were marked as Ext. 3 and 3/1 respectively. The dead body was sent to D.M.C.H. Darbhanga for post-mortem and on the next date in the morning, post-mortem was conducted on the dead body. In paragraph-10 of his cross-examination, PW-6 has stated that he gave information to the police. He himself at about 12:45 PM had given information to the Biraul Police. He had gone on a bicycle to Biraul Police Station and gave information to the police. He stated that from his house, he proceeded to police station at 12.30 PM and he reached police station at 1:00 PM. He himself at about 12:45 PM had given information to the Biraul Police. He had gone on a bicycle to Biraul Police Station and gave information to the police. He stated that from his house, he proceeded to police station at 12.30 PM and he reached police station at 1:00 PM. He stated that orally he gave information to police and thereafter, at 1:15 PM, he returned from the police station. He further clarified that he remained in the police station for about 5 minutes and thereafter, about 1:30 PM, he returned back and after his return, the police arrived. At this juncture, it is necessary to notice that the investigating officer/PW-9 Md. Sannaullah in his evidence has made categorical statement that he reached the place of occurrence after receiving some information without disclosing any source. Meaning thereby that the evidence of investigating officer does not support the stand of PW-6 that he himself had gone to the police station, otherwise also had the PW-6 gone to police station, who had claimed to be eye-witness and informed the police regarding the occurrence, in normal course, the Biraul police after receiving such information from the eye-witness was required to record his fardbeyan and draw formal F.I.R. but since the investigating officer is very much specific that he was not informed by PW-6 in the police station before his proceeding to the place of occurrence, the evidence of PW-6 on the point that he had gone to police station for informing the police appears to be doubtful. On examination of his cross-examination, further it has come that he had simply ignored number of questions, which in normal course, were expected to be explained by him. On being asked as to whether he can disclose the name of any person, who had carried the injured to hospital, he simply replied that he was not in a position to recollect those names. Similarly, on being asked about the name of person, who lifted the dead body from the place of occurrence and carried it to the door, he again said that he was not recollecting the name. It may be noticed that PW-6 is not an old person, who was having such weak memory, rather PW-6 is the informant and on the date of his evidence, he had disclosed his age as 19 years. It may be noticed that PW-6 is not an old person, who was having such weak memory, rather PW-6 is the informant and on the date of his evidence, he had disclosed his age as 19 years. In sum and substance, this conduct shows that he always gave evasive answer on being asked by defence side in his cross-examination. In such circumstance, certainly his evidence may not be considered as 100 % credible. 11. In the case, PW-1 Sabila Khatoon (wife of the deceased), PW-2 Amina Khatoon (mother of the deceased), PW-3 Ismail Naddaf @ Musharu (father of the deceased) and PW-5 Md. Naddaf (brother of the deceased) claiming to be witness to the occurrence had almost deposed like PW-6 (informant), however; PW-5 Md. Naddaf in the case was projected, as if, while he was going to show the moong field, which was allegedly grazed by the buffalo, was assaulted by aforesaid five appellants and in the said occurrence, he stated that he was brutally assaulted, however; during evidence from the prosecution side, no plausible material has been brought on record to show that he was brutally assaulted by the appellants’ side. In the case, evidence has been brought, as if, he had received one swollen injury on his leg and it was substantiated, as if, in the occurrence his leg was broken and in support of this stand from the prosecution side, PW-7 Dr. Mahesh Kumar was examined. 12. Dr. Mahesh Kumar (PW-7) was posted as Specialist Medical Officer in Primary Health Centre, Biraul and he stated that on the date of occurrence i.e. 25.04.2008 at about 4:20 PM, he had examined the injury of Md. Naddaf (PW-5) and he states that only one swollen injury he had noticed on his person and he had referred him for better treatment to D.M.C.H. Darbhanga. This witness has also proved his opinion regarding the injury to show that PW-5 had received fractured injury and also one X-ray plate, which was marked as Ext.5. On his cross-examination, PW-7 has stated that the said X-ray plate was never produced by either investigating officer or from the hospital, rather the said plate was produced by the prosecution side itself. 13. Moreover, on examination of evidence of PW-7, we have not been able to notice that PW-5 had received multiple injury or any other injury, save and except, one noticeable injury i.e. swollen injury. 13. Moreover, on examination of evidence of PW-7, we have not been able to notice that PW-5 had received multiple injury or any other injury, save and except, one noticeable injury i.e. swollen injury. In normal course, if PW-5, as alleged by prosecution, was brutally assaulted and he started crying and on his crying, Md. Farooq (deceased) had arrived to save him, certainly, PW-5 would have received some noticeable injuries on his person. Non-finding of such injury certainly creates some doubt in the mind of the Court regarding the prosecution case. Further, PW-5, in paragraph – 7 of his cross-examination to elaborate that he had received serious injury, had stated that he was treated in Biraul Hospital for about 6-7 days, however; this stand has been frustrated by the doctor posted in Biraul Primary Health Centre i.e. PW-7 Dr. Mahesh Kumar. 14. Dr. Arbind Kumar (PW-8) on 26.04.2008 was posted as Assistant Profession, F.M.T. Department, D.M.C.H. Darbhanga and on the same date, he had conducted post-mortem examination on the dead body of Md. Farooq (the deceased) and he noticed following ante-mortem injuries:- “(A) Fire arm entrance wound over anterior chest (2½ cm x 2½ cm x chest cavity) over sternum 4 cm below the line joining two nipples and at the height of 117 cm above the right foot heal. The margins of the wound were blackend, irregular, congested and inverted. The wound was surrounded by pellet wounds in the area of 24 cm x 22 cm. On dissection, the portion of the projectile wide etc. 3½ cm x 1½ cm was found in the chest cavity. Chest cavity had blood about (1 litre). Lungs, heart were congested and lacerated at places. External and adjacent chest ribs fractured pellets were recovered from the lungs, heart and from the surrounding pellet wounds (total 30 in numbers). Portion of the projectile as above and the pellets as above were sealed in an envelope and handed over to the accompanying police and to be examined by forensic concerned expert for the further opinion. (B) Abrasion present on right face just outer to right eye (2½ cm x ½ cm), left elbow back (2½ cm x 2 cm), right foot ankle outer part (3 cm x 2 cm), left sole 3 cm back to left toe (1 x 1 cm ). (C) On further dissection:- Head-brain little congested. (B) Abrasion present on right face just outer to right eye (2½ cm x ½ cm), left elbow back (2½ cm x 2 cm), right foot ankle outer part (3 cm x 2 cm), left sole 3 cm back to left toe (1 x 1 cm ). (C) On further dissection:- Head-brain little congested. Neck respiratory tract pale, had blood in the cavity appears to regurgitated from lungs, chest as above. Abdomen-liver ruptured in upper part. Abdominal cavity had blood (about 200 ml). Stomach was pale and had semi-digested food (about 100 ml). Intestine-gas and faces other viscera pale. Bladder empty. Others described in the P.M. Report. Rest N.A.D. (D) Opinion:- (i) Death was due to fire arm injuries, as described above. Other injuries were also ante-mortem and caused due to hard and blunt forces. (ii) Time since death - 12 to 24 hours since P.M. examination. (iii) Portions of projectile including pellets recovered were handed over to police.” This witness has also stated that post-mortem report was in his writing & signature and it was marked as Ext.6. 15. On Examination of the evidence of PW-8 as well as post-mortem report, it is evident that gun shot injury was given on the person of the deceased from the very close range and this was the reason that blackening around the entry wound was noticed by the doctor. In such injury, there was every possibility of profuse bleeding and as such, after receiving injury, if the deceased had fallen on the earth, there was every possibility of finding of huge blood or clotted blood, which has not been noticed by the investigating officer. 16. The investigating officer Md. Sannaullah has been examined as PW-9. On 25.04.2008, he was officer incharge of Biraul Police Station and he has proved the inquest report, which was prepared on the dead body of the deceased near the door of the informant. The inquest report was marked as Ext.7. He has also proved seizure list relating to seizure of fired cartridges (khokha), which was marked as Ext.8. Surprisingly, in the case, the investigating officer has also exhibited case diary from paragraph 1 to 68, which was marked as Ext.9. On examination of his evidence, it is clear that during investigation, neither he could notice any blood mark nor clotted blood at the place of occurrence, which was the moong field of one Bhup Narayan Jha. Surprisingly, in the case, the investigating officer has also exhibited case diary from paragraph 1 to 68, which was marked as Ext.9. On examination of his evidence, it is clear that during investigation, neither he could notice any blood mark nor clotted blood at the place of occurrence, which was the moong field of one Bhup Narayan Jha. The investigating officer has also not indicated anything as to whether he noticed any trampling of the moong crop over the field at the place of occurrence. This witness has also not stated as to whether he noticed any blood or clotted blood at the place i.e. door of the informant, where dead body immediately after the occurrence was put, nor he stated that he had noticed blood or blood mark from the place of occurrence to the door. Of course, he stated that he had seized fired cartridge from the place of occurrence, to the reasons best known to the prosecution, the said fired cartridge was not produced during the trial, rather this investigating officer in categorical term has stated that the said cartridge was never sent to F.S.L. or Ballistic expert. 17. In view of evidence of PW-9/investigating officer, there is no difficulty in coming to the conclusion that the prosecution has miserably failed to establish place of occurrence in the case. During evidence, suggestions were given to the witnesses that litigation in between informant side and appellants side was going on and there was one case relating to offence under Section 307 of the I.P.C. This fact has come in the evidence of PW-3 Ismail Naddaf @ Musharu. In paragraph-12 of his cross-examination, he accepted that there was earlier one case, however; he took the plea that subsequently good relation had prevailed in between the parties. The suggestion was given to two other eyewitnesses that the deceased was having nature of criminal and dispute in between the informant side and appellants side was going on, but those suggestions were denied by the witnesses. The suggestion was given to two other eyewitnesses that the deceased was having nature of criminal and dispute in between the informant side and appellants side was going on, but those suggestions were denied by the witnesses. In the case, after examination of the prosecution evidence, as per statutory provisions, it was mandatorily required on the part of the prosecution to explain all the circumstances and evidence to the accused at the time of recording their statement under Section 313 of the Cr.P.C. It appears that only formality was done, otherwise it was serious violation of provisions contained in Section 313 of the Cr.P.C. To substantiate this, it would be necessary to incorporate for example statement recorded under Section 313 of the Cr.P.C. in respect of only one appellant i.e. Md. Naushad (appellant no. 2), which is incorporated herein-below:- ^^Á'u & vkius ogh lkf{k;ksa dk lk{; lquk gS \ mRrj & th gkaA Á'u & vkids fo:) lk{; gS fd fnukad 25-4-2008 le; 12 cts fnu esa lqpd eksŒ gqlSu isŒ egen Qk:d lkŒ i/kkjh Fkkuk & fcjkSy ftyk & njHkaxk ds firk egen Qk:d ,oa pkpk eksgEen unkQ dks vU; lg&vfHkqDr ds lkFk lkekU; mn~ns'; ls uktk;t etek cukdj feydj ykBh ,oa cUnwd ls yS'k gksdj xzke & i/kkjh ds HkqisUæ >k isŒ x.kifr >k ds eqax yxs [ksr esa Fkkuk fcjkSy ftyk & njHkaxk esa eksgEen unkd dks ykBh ,oa cUnwd dqUnk ls tku ls ekjus ds fu;r ls ekj ihV dj t[eh dj fn;s rFkk eksgEen unkQ dks cpku eksŒ Qk:d x;s rks cUnwd ls Qk;j fd;k tks xksyh eksŒ Qk:d ds lhus esa yxk ftlls eksŒ Qk:d fd e`R;q gks xbZA mRrj & th ugha Á'u & D;k vkius dlqj fd;k gS \ mRrj & th ughaA Á'u & D;k lQkbZ esa dqN dguk gS \ mRrj & funksZ"k gawA lQkbZ lk{; nwaxkA** 18. On going through the statement of appellant no. 2 (Md. Naushad) recorded under Section 313 of the Cr.P.C. we are of the opinion that the prosecution has seriously violated the mandatory provisions and as such omission or commission on the part of the prosecution certainly can give benefit to the appellants. Moreover, time without number, it has been reiterated that recording of statement under Section 313 of the Cr.P.C. is not merely formality, but entire circumstances and evidences, collected during the trial, are required to be explained to the accused. Moreover, time without number, it has been reiterated that recording of statement under Section 313 of the Cr.P.C. is not merely formality, but entire circumstances and evidences, collected during the trial, are required to be explained to the accused. This issue has already been settled long back by the Hon'ble Supreme Court in a case reported in Sharad Birdhichand Sarda vs. State of Maharashtra, AIR 1984 SC 1622 . 19. In view of aforesaid facts and circumstances, we are of the opinion that the prosecution in the case has not been able to prove its case beyond all reasonable doubt and as such, by way of extending the benefit of doubt, it is necessary to interfere with the judgment of conviction and sentence. 20. Accordingly, the judgment of conviction dated 26.04.2013 and order of sentence dated 30.04.2013 passed in Sessions Trial No. 133 of 2011 (arising out of Biraul P.S. Case No. 38 of 2008) by Sri Abhay Kumar Bariyal, learned Additional Sessions Judge, Benipur, Darbhanga is hereby set aside and appeal is allowed. 21. Except Md. Nizam (appellant no. 1), all other four appellants are on bail and as such, they are discharged from the liability of their bail-bonds. Appellant no. 1 Md. Nizam is inside jail and since judgment of conviction and sentence has been set aside, it is desirable to direct for his release forthwith. Accordingly, it is directed to release appellant no. 1 Md. Nizam forthwith, if not required in any other case.