JUDGMENT : Prakash Chandra Jaiswal, J. Heard learned counsel for the appellant as well as learned APP for the State on this Criminal Appeal. 2. This criminal appeal has been preferred against the judgment and order of conviction dated 28.01.2013 and order of sentence dated 30.01.2013 passed by the Ad hoc Additional Sessions Judge-IV, Nawada in Sessions Trial No. 35 of 2007/ 41 of 2008, arising out of Nawada (Town) P.S. Case No. 165 of 2006, whereby the learned trial Court acquitted Ramjatan Singh and Arbind Singh of the charges levelled against them, while convicted Mantu Singh under Section 307 of the Indian Penal Code and sentenced him to undergo R.I. for seven years and also slapped him with a fine of Rs. 1000/- and in case of default of payment of fine to further undergo S.I. for 15 days under aforesaid Section. 3. The factual matrix of the case is that Nawada (Town) P.S. Case No.165 of 2006 was instituted under Sections 341, 324, 307, 379/34 of the Indian Penal Code and Section 27 of the Arms Act against the accused Ramjatan Singh, Arbind Singh and Mantu Singh on the basis of fardbeyan of Vinod Kumar @ Tikku, son of Ramdhani Prasad Yadav recorded by A.S.I. B. N. Singh of Pirbahore Police Station on 04.07.2006 at 1:30 PM in Patna Medical College and Hospital (PMCH) Emergency Ward (Surgical Ward) with the allegation in succinct that on 02.07.2006 at around 9:00PM, while the informant was proceeding to his house taking the account of his truck worth Rs. 7,400/- in his pocket and arrived near the house of Shiv Kumar Agarwal located in the lane of Rajendra Nagar, accused Arvind Singh, Mantu Singh and Ramjatan Singh caught him hold while Arvind Singh demanded money and on his refusal to oblige him, Mantu Singh resorted firing upon him by means of revolver inflicting injury on his back. Sustaining injury, he fell down and made alarm. In the mean time, Arvind Singh took out Rs. 7,400/- from his pocket, and Ramjatan Singh snatched his silver chain. Responding hulla made by him, Bhola Yadav, his brother Birendra Yadav and other locals rushed there by that time the accused persons left the scene. His family members rushed him to the Nawada Hospital where he was given first aid and thereafter he was referred to PMCH and is undergoing treatment there. 4. Responding hulla made by him, Bhola Yadav, his brother Birendra Yadav and other locals rushed there by that time the accused persons left the scene. His family members rushed him to the Nawada Hospital where he was given first aid and thereafter he was referred to PMCH and is undergoing treatment there. 4. The aforesaid case was investigated by the police and on conclusion of the investigation, I.O. submitted chargesheet against the accused persons, namely, Ramjatan Singh, Arbind Singh and Mantu Singh under Section 341/324/307/379/34 of the Indian Penal Code and Section 27 of the Arms Act. 5. On receiving the chargesheet and the case diary and perusing the same, the learned Magistrate took cognizance of the offence against the accused persons and committed the case to the Court of Sessions and on transfer finally the case came in seisin of the Ad hoc Additional Sessions Judge-IV, Nawada for trial. 6. Charge against accused Ramjatan Singh, Arbind Singh and Mantu Singh was framed under Section 307/34 of the Indian Penal Code, and charge against Mantu Singh was also framed under Sections 307 of the Indian Penal Code and Section 27 of the Arms Act and against Arvind Singh under Section 379 of the Indian Penal Code. Charge was read over and explained to the accused persons by the Court to which they pleaded not guilty and claimed to be tried. 7. To substantiate its case, in ocular evidence, the prosecution has examined altogether nine prosecution witnesses namely, Birendra Prasad Yadav as P.W.-1, Bhola Yadav as P.W.-2, Mukesh Kumar as PW-3, Binod Kumar @ Tikku (informant) as PW-4, Raju Kumar as PW-5, Dr. Rakesh Kumar, who has examined the injured at PMCH, as PW-6, Dr. Ajay Kumar, a private surgeon, who has initially treated the injured, as PW-7, A.S.I. Brijnandan Singh as PW-8 and I.O. Ram Bhawan Singh as PW-9. Out of the aforesaid witnesses, P.W. 8 happens to be the formal witness. Prosecution has also filed and proved several documents by way of documentary evidence in the case. 8. The statement of the accused persons was recorded under Section 313 of the Code of Criminal procedure. The case of the defence is complete denial of the occurrence claiming themselves to be innocent. Prosecution has also filed and proved several documents by way of documentary evidence in the case. 8. The statement of the accused persons was recorded under Section 313 of the Code of Criminal procedure. The case of the defence is complete denial of the occurrence claiming themselves to be innocent. The accused persons also examined eight witnesses, namely, Awlok as D.W.-1, Pappu Singh as D.W.-2, Sri Niwas Singh as D.W.-3, Sheo Bachan Sharma as D.W.-4, Jai Prakash Singh as D.W.-5, Kundan Kumar as D.W.-6, Subel Singh as D.W.-7 and Janardan Prasad Singh as D.W.-8 in buttress of their case. 9. After hearing the parties and perusing the record, the learned trial Court passed the impugned judgment and order of conviction and sentence as detailed in the earlier paragraph. 10. Being aggrieved and dissatisfied with the aforesaid judgment and order of conviction and sentence, the convict has preferred the present Criminal Appeal. 11. The point for consideration in this case is, as to whether the prosecution has been able to bring home the charges levelled against the appellant beyond all reasonable doubts or not. 12. It is submitted by the learned counsel for the appellant that though P.W.-1, 2, 3 and 5 have supported the prosecution case claiming themselves to be eye-witness of the occurrence but as per the statement of the informant as given by him in the fardbeyan the aforesaid witnesses do not happen to be eye-witness of the occurrence. As as per the fardbeyan witnesses had arrived at the place of occurrence responding hulla made by him after sustaining injury and falling on the ground by that time the accused persons had made good their escape. It is further submitted that as per account of the informant the firing was resorted upon him by Mantu Singh during the course of squabbling from one and half hand i.e. around two ft. but the informant had sustained injury on his back and not on the frontal portion of his person which creates serious doubt about the prosecution case. It is further submitted that Dr. but the informant had sustained injury on his back and not on the frontal portion of his person which creates serious doubt about the prosecution case. It is further submitted that Dr. Rakesh Kumar, P.W.-6, who had examined the victim at PMCH, Patna has not reported about the nature of the weapon used in the assault and as per his statement as given by him in his examination-in-chief he had examined victim on 03.07.2006 at around 12:30 PM but in para-4 of his cross-examination he has stated that he has written the injury report on 16.09.2006 which creates serious doubt about the prosecution case and indicates manipulation in the injury report later on. It is further submitted that genesis of the occurrence does not stand established by the prosecution. As as per prosecution case the occurrence took place over snatching the account of the truck but the prosecution has not adduced any paper of truck to substantiate the aforesaid case. Thus, the prosecution has utterly and miserably failed to substantiate the prosecution case by adducing consistent, trustworthy, reliable ocular and documentary evidence. Hence, the impugned judgment and Order of conviction and sentence passed by learned Trial Court is liable to be set aside and appellant is entitled to be acquitted of the charges levelled against him. 13. On the other hand, learned APP advocating the correctness and validity of the impugned judgment and order of conviction and sentence, submitted that the informant has supported the prosecution case in toto. Besides the informant, P.Ws.-1, 2, 3 and 5, who happen to be eye-witnesses of the occurrence have also corroborated the aforesaid prosecution case. The ocular evidence also stands corroborated by the medical evidence and the learned trial Court correctly appreciating the facts and evidence on record has rightly passed the impugned judgment and order of conviction and sentence, which is liable to be upheld and this appeal is shorn of merit and is liable to be dismissed. 14. From perusal of the record, it appears that to substantiate its case in ocular evidence the prosecution has examined five prosecution witnesses. Though P.W.1-Birendra Prasad Yadav and P.W.2-Bhola Yadav have claimed to have identified the appellant resorting firing upon the informant by means of revolver at the time of occurrence and both P.Ws.1 and 2 are said to be present there together. Though P.W.1-Birendra Prasad Yadav and P.W.2-Bhola Yadav have claimed to have identified the appellant resorting firing upon the informant by means of revolver at the time of occurrence and both P.Ws.1 and 2 are said to be present there together. But in para-1 of his examination-in-chief P.W.-1, has stated that he had witnessed the aforesaid occurrence in the torch light but I.O. P.W.-9 (Ram Bhawan Singh) in his cross-examination has stated that P.W.-1 had not given any statement to him regarding witnessing the occurrence in the torch light. Thus, the aforesaid witness appears to have taken altogether different stand before the Court regarding witnessing the occurrence in the torch light. The aforesaid torch was neither produced before the I.O. nor seized by him. Thus the source of witnessing the occurrence does not stand established by the prosecution. Admittedly, the occurrence is of 9:00 PM and P.W.-1 has claimed to have identified the occurrence in the torch light which candidly indicates that it was dark night at the time of occurrence and P.W.-2 has stated in para-4 of his cross-examination that he witnessed squabbling between the informant and the appellant from 15-20 fts. which means that P.Ws.-1 and 2 were present in the lane at 15-20 fts. from the place of occurrence and as it was dark night so without any source of identification it was not possible to witness the occurrence and identity the persons involved in the occurrence from such a distance. Thus the aforesaid aspect of the case creates serious doubt about witnessing of the occurrence by the P.Ws.-1& 2 and they do not happen to be eye-witness of the occurrence. 15. Mukesh Kumar-P.W.3 also does not happen to be eye-witness of the occurrence as in para-1 of his examination-in-chief itself he has stated that when he arrived at the place of occurrence listening the firing sound he witnessed Mantu Singh and Ramjatan Singh and Arbind Kumar escaping from the place of occurrence resorting firing and he also witnessed the informant (Binod Kumar @ Tikku) injured there. It was learnt that Mantu Singh has resorted firing on his back. The aforesaid statement of P.W.-3 eloquently indicates that the said witness had not seen resorting firing upon the informant as he had arrived at the place of occurrence responding firing sound and witnessed the accused persons including the appellant escaping from there and informant injured. It was learnt that Mantu Singh has resorted firing on his back. The aforesaid statement of P.W.-3 eloquently indicates that the said witness had not seen resorting firing upon the informant as he had arrived at the place of occurrence responding firing sound and witnessed the accused persons including the appellant escaping from there and informant injured. In para-3 of his cross-examination, he has stated that he learnt the occurrence from Bhola, Birendra, Umesh, Binod, Chandrika Yadav and Others but the aforesaid Bhola and Birendra have not corroborated the factum of divulgence of the aforesaid occurrence to P.W.-3. Likewise other witnesses named by P.W.-3 have also not corroborated the aforesaid statement of P.W.-3. Thus, the aforesaid statement of P.W.-3 is not admissible in evidence for want of corroboration. 16. Raju Kumar-P.W.5 though has stated in his examination-in-chief about witnessing of resorting firing upon the informant by the appellant but he also does not happen to be eye-witness of the occurrence as P.Ws. 1, 2 and 3 have not named the aforesaid witness present at the place of occurrence at the time of occurrence. Moreover, as per the account of informant and other witnesses the appellant assaulted the informant by means of revolver but P.W.-5 has stated in para-1 of his examination-in-chief that the appellant resorted firing upon informant by means of pistol. More so, the said witness has denied witnessing of occurrence by P.Ws.-1, 2 and 3 as in para-2 of his cross-examination he has stated that when he arrived at the place of occurrence he did not witness anyone there. When the accused persons left the scene after resorting firing the locals rushed there and Birendra Prasad Yadav, Bhola Yadav and Mukesh Kumar and Others lifted away the informant from the place of occurrence. Moreover, as per prosecution case as adumbrated in the fardbeyan after resorting firing upon the informant by Mantu Singh (appellant) he fell down on the ground and made alarm in the mean time Arvind Singh took out Rs. 7,400/- from his pocket while Ramjatan Singh snatched his silver chain and then responding hulla made by him locals Bhola Yadav and his brother Birendra Yadav and Others rushed there, by that time the accused persons made good their escape. 7,400/- from his pocket while Ramjatan Singh snatched his silver chain and then responding hulla made by him locals Bhola Yadav and his brother Birendra Yadav and Others rushed there, by that time the accused persons made good their escape. The aforesaid prosecution case candidly indicates that the aforesaid witnesses had arrived at the place of occurrence at the time of occurrence responding hulla made by the informant after departure of the accused persons from the place of occurrence which means that none of the aforesaid witnesses had witnessed the occurrence. The Informant, Binod Kumar @ Tikku (P.W.-4) has stated in para-11 of his cross-examination that he could not know as to whether the blood was sprouted from his wound as he fell senseless. He fell down on the ground sustaining injury. P.W.-2 has stated in para-1 of his examination-in-chief that the bullet hit on the back of the Binod Kumar @ Tikku and sustaining injury he fell senseless. The aforesaid statement of informant and P.W.-2 conjointly indicates that after sustaining injury the informant fell senseless on the ground. So the million dollar question arises as once the informant fell senseless sustaining injury then how he would have witnessed arriving of P.W.-1, P.W.-2, P.W.-3 & P.W.-5 there responding hulla made by him which also creates serious doubt about witnessing of the occurrence by the aforesaid witnesses. 17. Informant has stated in para-9 of his cross-examination that Mantu Singh demanded money from him and engaged in squabbling with him and on making protest by him he resorted firing upon by him from around one and half feet. The aforesaid statement of the informant candidly indicates that the appellant had resorted firing upon the informant during the course of squabbling so the informant must have sustained injury on the frontal portion of his person. Informant has not stated that after squabbling he turned around in the course of escaping and then appellant resorted firing upon him. But as per witnesses account and injury report informant had sustained injury on his back so million dollars question arises as to how the informant sustained injury on his back which remained unanswered and creates serious doubt about the prosecution case. 18. But as per witnesses account and injury report informant had sustained injury on his back so million dollars question arises as to how the informant sustained injury on his back which remained unanswered and creates serious doubt about the prosecution case. 18. Informant has stated in para-12 of his cross-examination that his statement was recorded in the PMCH, Patna on the following day of occurrence i.e. on 03.07.2006 but from perusal of record it appears that his fardbeyan was recorded on 04.07.2006. So his earlier statement recorded on 03.07.2006 must be the First Information Report but the said First Information Report has not been brought on record which goes to create serious doubt about the prosecution case. 19. P.W.-6, Dr. Rakesh Kumar, who is said to have examined the victim at PMCH, Patna on 03.07.2006 and has found injury on his back but he has not mentioned the nature of the weapon used in the occurrence in his injury report. Moreover, in para-4 of his cross-examination he has stated that he had written the injury report on 16.09.2006 while he had examined the injured on 03.07.2006. The aforesaid aspect of the case creates serious doubts about the sanctity of injury report of victim and prosecution case. Thus the ocular evidence of prosecution also does not stand corroborated by the medical evidence. 20. In the facts and circumstances of the case, I find and hold that the prosecution has utterly and miserably failed to substantiate the prosecution case and bring home the charge levelled against the appellant by adducing consistent, trustworthy and reliable ocular and medical evidence. Hence, the impugned judgment and order of conviction and sentence passed by the learned trial Court against the appellant is set aside and the appellant is acquitted of the charge levelled against him giving him benefit of doubt. As the appellant is on bail he is discharged from the liability of bail bond. Accordingly, this appeal is allowed.