JUDGMENT : (Rajesh Shankar, J.) The present appeal has been filed against the judgment of conviction and order of sentence dated 16.12.2008 and 18.12.2008 respectively passed by the Additional Sessions Judge, Fast Track Court-II, Chatra in Session Trial No. 112 of 2006 whereby the appellant herein has been convicted under section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life and fine of Rs. 3,000/- and in default thereof, to undergo further imprisonment for six months. The appellant has also been convicted under section 27 of the Arms Act and sentenced to undergo imprisonment for five years and fine of Rs. 1,000/- and in default of the payment of fine, to undergo further imprisonment for two months. 2. The brief facts of the case, as stated in the fardbeyan of the informant Ravindra Bharti (P.W.7) recorded on 18.01.2006 at about 06.30 am, is that on 17.01.2006 at about 9.00 pm, the appellant- Krishna Bhuiyan was quarrelling with his neighbour Raj Kumar Bharti. Gauri Bhuiyan (deceased) intervened in the quarrel and made them understand. Thereafter, both Raj Kumar Bharti and the appellant went from there. On the same day at about 9.30 pm, when Gauri Bhuiyan and his mother were sitting near fire in the street, the appellant Krishna Bhuiyan again came and started speaking loudly. The informant and his neighbours Gora Bhuiyan, Pravesh Prasad and others came there and saw that the appellant Krishna Bhuiyan suddenly fired up on Gauri Bhuiyan with a gun, consequently Gauri Bhuiyan fell down and died. Thereafter, the appellant fled away towards west of the village. The information about the incident was given to the Choukidar of the village. 3. On the basis of the fardbeyan, an F.I.R being Pratappur P.S Case No. 05 of 2006 was registered under Section 302 of IPC and section 27 of Arms Act against Krishna Bhuiyan (the appellant). After investigation, the chargesheet was submitted by the police and charge was framed against the appellant under Section 302 IPC and section 27 of the Arms Act and tried accordingly. 4. The prosecution examined altogether seven witnesses to prove the charge against the appellant. They are- P.W.1- Bhagia Devi, mother of the deceased, P.W. 2- Gora Bhuiyan, P.W. 3- Ramdeo Sao, P.W. 4- Barhanwa Devi, wife of the deceased P.W. 5- Naresh Yadav, P.W. 6- Dr. Bhuneshwar Pd. 4. The prosecution examined altogether seven witnesses to prove the charge against the appellant. They are- P.W.1- Bhagia Devi, mother of the deceased, P.W. 2- Gora Bhuiyan, P.W. 3- Ramdeo Sao, P.W. 4- Barhanwa Devi, wife of the deceased P.W. 5- Naresh Yadav, P.W. 6- Dr. Bhuneshwar Pd. Singh, who has conducted postmortem on the dead body of the deceased and P.W. 7- Ravindra Bharti @ Birendra Bhuiyan, informant of the case. 5. The learned counsel appearing on behalf of the appellant submits that in the present case, the investigating officer has not been examined by the prosecution, which is a serious lapse on the part of prosecution. It is further submitted that as per the FIR, the occurrence took place at 9.30 pm and there was no electricity in the village, which creates great suspicion of the prosecution case and it may be possible that someone else fired on the deceased and fled away. It is also submitted that P.W. 1 (Bhagia Devi), who claimed to be an eye witness to the occurrence, during examination-in-chief, has totally changed her version during cross-examination. There are material discrepancies and inconsistencies in her statement and as such, she cannot be said to be a reliable witness. It is further submitted that the appellant and the deceased were own brothers and there was no enmity between them. The motive behind the occurrence has also not sufficiently been proved by the prosecution. The witnesses have clearly stated before the learned trial court that there was no quarrel between the appellant and the deceased, rather the quarrel took place between the appellant and Raj Kumari Bharti in which the deceased had intervened only to resolve the dispute. 6. On the other hand, the learned A.P.P. while supporting the impugned judgment of conviction and sentence submits that the prosecution witnesses have fully supported the case of prosecution. P.W. 2, who is also the eye-witness to the occurrence has consistently narrated the manner of occurrence during his cross-examination without any major contradiction. It is further submitted that though the Investigating Officer has not been examined in the trial, the appellant failed to show any such prejudice caused to him by non-examination of the I.O. Moreover, P.W 2 has specifically stated in his examination-in-chief that there was light near the place of occurrence. It is further submitted that though the Investigating Officer has not been examined in the trial, the appellant failed to show any such prejudice caused to him by non-examination of the I.O. Moreover, P.W 2 has specifically stated in his examination-in-chief that there was light near the place of occurrence. It is also submitted that the prosecution witnesses have sufficiently been able to prove that at the time of occurrence, the deceased had intervened in the fight between the appellant and one Raj Kumar Bharti and the same was sufficient motive on the part of the appellant to commit murder of the deceased. 7. Heard the learned counsel appearing on behalf of the parties and perused the evidences brought on record. The prosecution has examined altogether seven witnesses in order to prove the charge against the appellant. Out of these witnesses, P.W. 3 - Ramdeo Sao has been declared hostile. P.W. 4 Barhanwa Devi has not been examined by the court as she was not able to give evidence due to insanity, whereas P.W.5 - Naresh Yadav is a hearsay witness. 8. P.W. 6 is Dr. Bhuneshwar Prasad Singh, who conducted postmortem on the person of the deceased and proved the postmortem report as Ext. 1. He found following injuries on the person of the deceased:- I. Entry wound ½” lateral from midline towards left in the epigastrium, oval in shape size 1/2" x 1/2", margin inverted and abrasion collar was present, but singing and tattooing were not present around and margin of wound. In the over lying Sweater and Kurta there were corresponding hole of the same size made by the entry of the bullet with blackening and Bruise of the margin of the holes of sweater and kurta. II. One exit wound of 1” X 1” circular, margin averted was found below the inferior angle of the Rt. Scapula in the 7th intercostal space posteriorly. III. On opening of the chest cavity and abdominal wall - The whole track of passage of palate from entry wound to exit would was found damaging the liver into many pieces with blood and blood clot present in the peritoneal cavity. Heard - Both Chamber empty. Lung, spleen, kidney pale, Stomach -Digested paste like material IV. III. On opening of the chest cavity and abdominal wall - The whole track of passage of palate from entry wound to exit would was found damaging the liver into many pieces with blood and blood clot present in the peritoneal cavity. Heard - Both Chamber empty. Lung, spleen, kidney pale, Stomach -Digested paste like material IV. It is opined that the death was due to shock and haemorrhage resulting due to above damage of liver due to fire arm injury and the time elapsed since death was 12 to 24 hours. 9. The investigating officer has not been examined in this case. It is a settled law that the non-examination of the investigating officer is fatal if due to his non-examination, some prejudice is caused to the accused. 10. In the case of Lahu Kamlakar Patil & Another Versus State of Maharashtra reported in (2013) 6 SCC 417 , the Hon’ble Supreme Court held as under:- “18. Keeping in view the aforesaid position of law, the testimony of PW 1 has to be appreciated. He has admitted his signature in the F.I.R. but has given the excuse that it was taken on a blank paper. The same could have been clarified by the Investigating Officer, but for some reason, the Investigating Officer has not been examined by the prosecution. It is an accepted principle that non-examination of the Investigating Officer is not fatal to the prosecution case. In Behari Prasad v. State of Bihar [ (1996) 2 SCC 317 ], this Court has stated that non-examination of the Investigating Officer is not fatal to the prosecution case, especially, when no prejudice is likely to be suffered by the accused. In Bahadur Naik v. State of Bihar [ (2000) 9 SCC 153 ], it has been opined that when no material contradictions have been brought out, then non-examination of the Investigating Officer as a witness for the prosecution is of no consequence and under such circumstances, no prejudice is caused to the accused. It is worthy to note that neither the trial judge nor the High Court has delved into the issue of non-examination of the Investigating Officer. On a perusal of the entire material brought on record, we find that no explanation has been offered. It is worthy to note that neither the trial judge nor the High Court has delved into the issue of non-examination of the Investigating Officer. On a perusal of the entire material brought on record, we find that no explanation has been offered. The present case is one where we are inclined to think so especially when the informant has stated that the signature was taken while he was in a drunken state, the panch witness had turned hostile and some of the evidence adduced in the court did not find place in the statement recorded under Section 161 of the Code. Thus, this Court in Arvind Singh v. State of Bihar [ (2001) 6 SCC 407 ], Rattanlal v. State of Jammu and Kashmir [ (2007) 13 SCC 18 ] and Ravishwar Manjhi and others v. State of Jharkhand [ (2008) 16 SCC 561 ], has explained certain circumstances where the examination of Investigating Officer becomes vital. We are disposed to think that the present case is one where the Investigating Officer should have been examined and his non-examination creates a lacuna in the case of the prosecution.” 11. The entire prosecution case rest on the evidence of P.W. 1, P.W. 2, and P.W. 7 who claimed to have seen the occurrence. P.W. 1 - Bhagia Devi is the mother of the deceased and has claimed to be an eye witness of the occurrence. Although in her examination- in-chief, she has deposed that Krishna Bhuiyan fired gunshot on the chest of the deceased and killed him but during cross- examination, she declined her earlier version and stated that she did not know who fired on the deceased. She has stated that she was the first person, who reached the place of occurrence. She further deposed that she had reached the place of occurrence after the incident. She has also deposed that her eye sight is poor. She could not even count the fingers of the defence lawyer from the witness box. P.W. 2 - Gora Bhuiyan has also claimed to be an eye witness to the occurrence. He has deposed that a quarrel had taken place between Raj Kumar Bharti and Krishna Bhuiyan in which the deceased had intervened due to which Krishna Bhuiyan fired on the chest of the deceased. P.W. 2 - Gora Bhuiyan has also claimed to be an eye witness to the occurrence. He has deposed that a quarrel had taken place between Raj Kumar Bharti and Krishna Bhuiyan in which the deceased had intervened due to which Krishna Bhuiyan fired on the chest of the deceased. He also deposed that there was light at the place of occurrence but on query made by the court, he stated that at the time of incident, the place of occurrence was dark and a lantern was illuminating in the house of the deceased. During cross- examination, he deposed that his statement was not recorded by the police. He has further deposed that at the time of occurrence he, the son of deceased-Mahender and the mother of the deceased (Bhagia Devi- P.W.1) were sitting there. He has also stated that there was no electric line in his village. P.W. 7 - Rabindra Bharti is the son of the deceased. He is the informant of the case and has also claimed to be an eye witness to the occurrence. He has deposed that Raj Kumar Bharti and the appellant were quarrelling with each other. The deceased came there to resolve the quarrel and thereafter both persons went to their respective houses. He further deposed that his father was sitting near the fire where the appellant came again and started quarrelling with Raj Kumar Bharti in which his father intervened whereupon the appellant fired on him as a result of which, he died on the spot. During cross-examination, he has deposed that at the time of incident, he was in his house and the incident took place at the village road. He has further deposed that the appellant and the deceased were own brothers and there was no dispute between them. He has also deposed that Gora Bhuiyan, Ramdeo Sao, Bado, Bhuiyan, Sahdeo Bhuiyan, Daso Bhuiyan and Suraj Deo Bhuiyan used to reside near his house. 12. All the aforesaid witnesses are related witness. It is further revealed from the evidences of these witnesses that several persons had gathered at the place of occurrence at the time of incident. However, the prosecution failed to produce any independent witness of the locality in support of the case. 12. All the aforesaid witnesses are related witness. It is further revealed from the evidences of these witnesses that several persons had gathered at the place of occurrence at the time of incident. However, the prosecution failed to produce any independent witness of the locality in support of the case. The Investigating Officer did not appear before the trial court to explain the circumstance as to why the independent witnesses were not made the charge sheet witness. Only one independent witness has been examined in this case i.e. P.W. 3, but he has also not supported the case of the prosecution and has accordingly been declared hostile. 13. In the case of D.V. Shanmugham & Anr. Vs. State of Andhra Pradesh reported in (1997) 5 SCC 34, the Hon’ble Supreme Court held as under:- “------It also appeared from the evidence of PW-2 and PW-8 that there were several other people who witnessed the occurrence and they are not the residents of that locality. If such independent witnesses were available and yet were not examined by the prosecution and only those persons who are related to the deceased were examined then in such a situation the prosecution case has to be scrutinised with more care and caution. -----“ 14. On close scrutiny of the evidences of the eye-witnesses, I find that there are several variance and inconsistencies in their depositions. Though, P.W.1 has been projected by the prosecution as an eye-witness to the occurrence, yet during her cross examination, she has completely denied her presence at the time of incident. She has deposed that she was the first person to reach the place of occurrence. This statement of P.W. 1 itself contradicts the case of the prosecution. P.W. 2 has claimed to have seen the occurrence. He has narrated during his cross- examination that he, son of Gauri namely Mahendra Bhiyan and mother of Gauri namely Bhagia Devi were sitting there on “OTA”. However, the said fact has not been corroborated by P.W.1. Though in the case diary, the statement of P.W. 2 is found to have been recorded under section 161 of Cr.P.C but P.W.2 in his cross-examination has specifically stated that he was not examined by the police earlier. The Investigating Officer has not been examined during the trial to explain the said discrepancy in the investigation. Though in the case diary, the statement of P.W. 2 is found to have been recorded under section 161 of Cr.P.C but P.W.2 in his cross-examination has specifically stated that he was not examined by the police earlier. The Investigating Officer has not been examined during the trial to explain the said discrepancy in the investigation. Thus, the non-examination of the investigating officer is fatal to the case of prosecution. P.W 7 is the son of the deceased. Though he has claimed to have seen the occurrence, yet during his cross examination, he has deposed that at the time of incident, he was in his house. Neither P.W. 1 nor P.W. 2 has deposed that P.W.7 was present at the place of occurrence. Since the time of occurrence was 9.30 pm in a dark night of winter season and there was no light at the place of occurrence, the identification of the accused-appellant by P.W.7 appears to be highly doubtful. He has admitted in his evidence that there was no enmity between the appellant and the deceased. The motive suggested by the prosecution is quite feable. P.W.1 has not seen any gun in the hand of the accused-appellant. P.W. 2 has deposed that the gun was one and half hand span long however he further deposed that he has not seen the gun during the quarrel. P.W. 7 has deposed that the gun was two hand span long. Though from the case diary, it transpires that the gun was seized on 20.01.2006 and for which separate F.I.R was lodged under section 25(1-b)a and 26 of the Arms Act, yet the same was never produced before the eye witnesses to confirm as to whether the same gun was used by the accused/appellant to kill the deceased. This is also one of the vital infirmities in the investigation. If the Investigating Officer had appeared in the trial for his examination, the defence could have cross-examined him on the point of such lapses in the investigation. Thus, due to non- examination of the Investigating Officer, the appellant has been put to serious prejudice and as such he deserves benefit of doubt. Thus, we are of the view that the prosecution has not been able to prove the charge against the present appellant beyond the shadow of reasonable doubt. 15. Thus, due to non- examination of the Investigating Officer, the appellant has been put to serious prejudice and as such he deserves benefit of doubt. Thus, we are of the view that the prosecution has not been able to prove the charge against the present appellant beyond the shadow of reasonable doubt. 15. In the result, the present appeal is allowed and the appellant is acquitted giving benefit of doubt. The impugned judgment of conviction dated 16.12.2008 and order of sentence dated 18.12.2008, passed by the Additional Sessions Judge, Fast Track Court-II, Chatra, in Sessions Trial No. 112 of 2006 passed against the appellant, are set aside. Appellant is directed to be released from custody forthwith, if not required in any other case. 16. Let the Lower Court Record be sent to the concerned court forthwith alongwith a copy of this judgment.