JUDGMENT : RAKESH KUMAR, J. The present appeal was preferred against judgment dated 18-07-2016, whereby the sole appellant was convicted for commission of offence under Sections 302/34, 379/34 of the Indian Penal Code, 1860 (hereinafter referred to as the ‘I.P.C.’) and Section 27 of the Arms Act, 1959 (hereinafter referred to as the ‘Arms Act’) and by order of sentence dated 20-07-2016, he was directed to undergo rigorous imprisonment for life and pay a fine of Rs. 20,000/- (twenty thousand) under Sections 302/34 of the I.P.C. and in default of payment of fine, he was directed to undergo further imprisonment for four months. Similarly, for commission of offence under Section 379/34 of the I.P.C., the appellant was directed to undergo rigorous imprisonment for three years and under Section 27 of the Arms Act, he was further directed to undergo rigorous imprisonment for three years. All the sentences were directed to run concurrently. The judgment of conviction and sentence was passed by Sri Vikram Singh, learned 2nd Additional District & Sessions Judge, Jamui (hereinafter referred to as the ‘Trial Judge’) in Sessions Trial No. 186 of 2014 (arising out of Khaira P.S. Case No. 32 of 2014). 2. Short fact of the case is that on 23-02-2014, Sub- Inspector of Police of Jamui Police Station namely Sri Pramod Kumar (not examined) recorded fardbeyan of Surendra Yadav (P.W.3) in Sadar Hospital, Jamui. The fardbeyan was recorded before the dead-body of his brother Prakash Yadav. In the fardbeyan, the informant stated that on 22-02-2014 at about 10:00 AM, he alongwith his brother Prakash Yadav (deceased) and Daso Yadav (P.W.4) on a motorcycle had gone to Jamui Bazar and while going, on way near Khaira Bazar More, 1. Bhutai Yadav (appellant), 2. Rashid Miya, 3. Panchu Miya, 4. Arjun Turi, 5. Upendra Yadav, 6. Ram Bilash @ Ramji Yadav (all accused no. 2 to 6 not chargesheeted), 7. Fuleshwar Rai (acquitted) and 8. Nepali Rai (acquitted) inquired from the informant as to where they were going. Thereafter, all the three persons, after reaching Jamui Bazar, handed over collection in respect of J.C.B. to its owner Ramrup Yadav (not examined). It was clarified that his brother Prakash Yadav was using J.C.B. of Ramrup Yadav. Fuleshwar Rai (acquitted) and 8. Nepali Rai (acquitted) inquired from the informant as to where they were going. Thereafter, all the three persons, after reaching Jamui Bazar, handed over collection in respect of J.C.B. to its owner Ramrup Yadav (not examined). It was clarified that his brother Prakash Yadav was using J.C.B. of Ramrup Yadav. Thereafter, the informant and other two went to market to purchase clothes and while returning on the motorcycle near Gopalpur Bazar, Fuleshwar Rai and Nepali Rai (both acquitted) again met them and asked as to whether they were returning to their house. At about 3:30 PM, while they reached near Ketaribank on Arghauti river bridge and crossed it, he saw near Mahua tree, two motorcycles were standing on road and six accused persons namely 1. Bhutai Yadav (appellant), 2. Rashid Miya, 3. Panchu Miya, 4. Arjun Turi, 5. Upendra Yadav and 6. Ramji Yadav keeping arm with them were sitting there. Immediately after noticing them from about 50 meters away, he stopped his motorcycle, thereafter, accused persons started firing on informant side. The informant and Daso Yadav (P.W.4) anyhow saved their life. Subsequently, all accused persons started chasing his brother Prakash Yadav (deceased) and while running, they were firing. The informant stated that firing, being made by Arjun Turi, hit the thumb of right hand of his brother. Second firing was made by Panchu Miya, which did not hit him and his brother was still fleeing away. Thereafter, Rashid Miya fired, which hit in between thigh and waist of his brother. Thereafter, Bhutai Yadav (appellant) caught his brother and from his pistol, he fired on right temporal region of his brother, whereby, his brother died at the place of occurrence itself. After killing his brother, accused Ramji Yadav and Upendra Yadav fired two shots each on the informant side, however; same did not hit him. After saving their life, both fled away towards the village and on alarm, being raised by him, villagers arrived there and thereafter, accused persons had taken motorcycle of the informant, bearing registration no. BR46B-4089, and fled away from the place of occurrence. He claimed that he had seen the occurrence. His fardbeyan was read over to him and in presence of his younger brother Ajit Yadav (P.W.1), he put his signature on the same. 3. BR46B-4089, and fled away from the place of occurrence. He claimed that he had seen the occurrence. His fardbeyan was read over to him and in presence of his younger brother Ajit Yadav (P.W.1), he put his signature on the same. 3. After recording fardbeyan on 23-02-2014, at 1:30 P.M., a formal F.I.R., vide Khaira P.S. Case No. 32 of 2014, was registered under Sections 302, 120(B), 379, 34 of the I.P.C. and Section 27 of the Arms Act against eight following accused persons:- 1. Bhutai Yadav (appellant), 2. Rashid Miya (not chargesheeted), 3. Panchu Miya (not chargesheeted), 4. Arjun Turi (not chargesheeted), 5. Upendra Yadav (not chargesheeted), 6. Ram Bilash @ Ramji Yadav (not chargesheeted), 7. Fuleshwar Rai (acquitted), and 8. Nepali Rai (acquitted). 4. Thereafter, police started investigation and after investigation, on 18-05-2014 chargesheet was submitted against three accused persons namely Bhutai Yadav (appellant), Fuleshwar Rai and Nepali Rai. Thereafter, on 21-05-2014, the learned Judicial Magistrate 1st Class, Jamui took cognizance of the offence and case was committed to the court of sessions on 05-06-2014. After commitment, on 24-06-2014, charges were framed jointly against all the three accused for offence under Section 302/34, 120(B), 379 of the I.P.C. and Section 27 of the Arms Act. To prove its case from the prosecution side, altogether seven witnesses were examined, out of them; P.W.1 Ajit Yadav, brother of the deceased & informant was examined as hearsay witness, P.W.2 Dr. Rajesh Kumar, who was medical officer, Sadar Hospital, Jamui, had conducted post-mortem examination on the dead body of the deceased, P.W.3 Surendra Yadav is the informant and brother of the deceased, P.W.4 Daso Yadav has been examined as eye-witness to the occurrence, whereas, P.W.5 Prayag Saw and P.W.6 Umesh Kumar Yadav had not supported the prosecution case and as such, both were declared as hostile witness. In the case, Sri Kameshwar Singh, who conducted investigation, was examined as P.W.7. 5. Sri Vikramdeo Singh, learned counsel assisted by Sri Satya Prakash Parasar, learned counsel for the appellant, after placing entire evidence, has argued that virtually in the occurrence, none of the accused were identified and subsequently, even after preparation of inquest report and completion of post-mortem examination on the dead body of the deceased, on the next date of occurrence i.e. on 23rd February, 2014, fardbeyan was recorded at 10:45 AM. Sri Vikramdeo Singh, learned counsel for the appellant has argued that the entire prosecution case is vitiated, in view of the fact that the prosecution has suppressed the first version and this was the reason that much belatedly fardbeyan was recorded. By way of referring to paragraph – 22 of the evidence of P.W.3/informant, learned counsel for the appellant has argued that the informant has categorically stated that at the place of occurrence before arrival of the police, he was present and in his presence, inquest report was prepared on 22-02-2014 at about 5:00 PM. This witness i.e. informant/P.W.3 has further stated that after preparation of inquest report and seizure list, the police officer had recorded his statement and thereafter, the informant had signed on it, however; in the present case, fardbeyan i.e. Ext. 4 states that it was recorded on 23-02-2014 at 10:45 AM. He further submits that in the case, on the date of occurrence itself i.e. on 22-02-2014 in between 5 and 6 PM, inquest report and so called seizure list regarding recovery of one khokha and mobile was shown to be prepared and on the next morning i.e. on 23-02-2014, the dead body challan i.e. Ext. 8 was prepared and dead body was sent to the mortuary for post-mortem examination and thereafter, on the same date i.e. 23-02-2014 at about 8:30 AM, post-mortem examination was conducted on the dead body of the deceased and only thereafter, the fardbeyan was shown to be recorded at 10:45 AM on the same date i.e. on 23-02-2014. He submits that non-identification of any of the accused persons at the time of occurrence is further corroborated from paragraph - 4 of the evidence of P.W.4 Daso Yadav, who was none else, but accompanying the deceased and informant on one motorcycle at the time of occurrence. This witness i.e. P.W.4 has categorically stated that he had not identified any of the accused persons. It has been argued by Sri Vikramdeo Singh that this witness was not declared hostile by the prosecution and as such, there is no reason to doubt on his evidence. Once one of the eye-witness, who was accompanying the deceased, is making specific statement that none of the accused persons were identified, in that event, belated recording of fardbeyan substantially indicates that due to animosity, name of number of accused persons was incorporated in the fardbeyan. Once one of the eye-witness, who was accompanying the deceased, is making specific statement that none of the accused persons were identified, in that event, belated recording of fardbeyan substantially indicates that due to animosity, name of number of accused persons was incorporated in the fardbeyan. He further submits that false implication is further evident from the fact that though in the F.I.R., eight persons were arrayed as accused with specific accusation, however; during investigation, accusation against five of the F.I.R. named accused persons was not found true and this was the reason that five accused persons were not chargesheeted and chargesheet was submitted against the appellant and other two accused namely Fuleshwar Rai and Nepali Rai. Even during trial, no evidence against Fuleshwar Rai and Nepali Rai was brought on record and this was the reason that both accused persons were acquitted by the learned Trial Judge itself. It has been argued that despite the fact that there was no eye-witness to the occurrence, the learned Trial Judge erroneously, only on the basis of evidence of informant/P.W.3, has held the appellant guilty and passed the judgment of conviction and sentence. Accordingly, it has been argued that judgment of conviction and sentence is liable to be set aside. 6. Sri Ajay Mishra, learned Addl. Public Prosecutor as well as Mr. Sabir Ahmad, learned counsel assisted by Sri Umesh Prasad, learned counsel for the informant have vehemently opposed the appeal. It has been argued by Mr. Sabir Ahmad, learned counsel for the informant that the evidence of informant, who is an eye-witness, is very much specific and there is no reason to raise any doubt on his evidence. He further submits that during trial, place of occurrence and manner of occurrence have already been established and in such situation, merely on the ground of certain contradictions or belated recording of fardbeyan, the judgment of conviction and sentence may not be interfered with. 7. Besides hearing learned counsel for the parties, we have minutely examined entire evidence i.e. oral and documentary evidence and after examining the same, prima facie, we are satisfied that prosecution has not established its case beyond all reasonable doubt. 7. Besides hearing learned counsel for the parties, we have minutely examined entire evidence i.e. oral and documentary evidence and after examining the same, prima facie, we are satisfied that prosecution has not established its case beyond all reasonable doubt. Ofcourse, the informant/P.W.3 in his evidence has corroborated the fact disclosed in the fardbeyan, no explanation has been given as to under what circumstances, once he was present at the place of occurrence, while seizure list was being prepared by the police, on the same date i.e. on the date of occurrence 22-02-2014 at 5:00 PM, why his fardbeyan was not recorded by the police. This witness i.e. P.W.3 in paragraph 22 of his evidence has made specific statement that police was informed and thereafter, police arrived and at that very time, he was present at the place of occurrence and in his presence, on 22-02-2014 at 5:00 PM, inquest report on the dead body was prepared, which is further corroborated on perusal of the inquest report i.e. Ext.5. This witness has also stated that his statement was recorded and he also put his signature. Once the informant in his evidence has made categorical statement that on the date of occurrence itself, his statement was recorded and he has also put his signature, there is no explanation by the prosecution as to why such fact or statement was not made basis for recording formal F.I.R. 8. The Court is in agreement with the submission of learned counsel for the appellant that prosecution has purposely suppressed initial version of its case and subsequently, in a well-planned manner, a story was developed in the fardbeyan, in which, specific accusation was made against accused persons, who were named with parentage in the F.I.R. There is also further no explanation as to what was the reason for belated recording of fardbeyan. In the case, inquest report and seizure list was prepared on 22-02-2014 in between 5 and 6 PM and on the next date i.e. on 23-02-2014 at 8:30 AM post-mortem examination was conducted on the dead body by P.W.2 Dr. Rajesh Kumar whereas fardbeyan was shown recorded on 23-02-2014 at 10:45 A.M. 9. Dr. In the case, inquest report and seizure list was prepared on 22-02-2014 in between 5 and 6 PM and on the next date i.e. on 23-02-2014 at 8:30 AM post-mortem examination was conducted on the dead body by P.W.2 Dr. Rajesh Kumar whereas fardbeyan was shown recorded on 23-02-2014 at 10:45 A.M. 9. Dr. Rajesh Kumar/P.W.2, at the relevant time was posted as medical officer, Sadar Hospital, Jamui, who conducted post-mortem examination on the dead body of the deceased and noticed following facts: “(1) Rigor mortis present in all four limbs and found following injuries:- (A) Lacerated injury over upper neck. Just below left ear intraluminal deep. 2” x 1 ½ ” x intraluminal deep in dimension with everted margin and clothes soaked with blood. (B) Small oval lacerated injury just skin deep at right shoulder. (C) Another lacerated injury oval in shape at upper neck just below right ear 1” x ¼ ” x intraluminal deep with inverted margin. Wound No. A & B are connected with each other. (2) Tatooing on left half of face. All over injuries are ante-mortem in nature and caused by fire arm. The Post mortem conducted after dissection:- Abdomen :- Stomach was found empty and small intestine fluid and gas. Large intestine fluid and gases. Lever and spleen pale, kidney both rt. & left found pale. In bladder nothing abnormal was detected. External and internal – nothing detected. In my opinion, death has been caused by cardiorespiratory failure due to above injuries found. Time lapse since death till holding P.M. - within 24 hours.” He proved the post-mortem report, which has been marked as Ext. 1. 10. Besides evidence of informant/P.W.3 in the case, evidence of P.W.4 Daso Yadav is also relevant, since he was also accompanying the deceased and informant on same motorcycle at the time of the occurrence. This witness in paragraph 4 of his evidence has categorically said that in the occurrence, he had not seen the appellant Bhutai Yadav. This witness i.e. P.W.4 was not declared hostile and as such, there is no reason to raise any doubt on his evidence. Once in the occurrence, which was claimed to be seen by P.W.4 and he states that he had not identified the appellant in the occurrence, there is no reason to place reliance on the evidence of the informant, who was brother of the deceased. Once in the occurrence, which was claimed to be seen by P.W.4 and he states that he had not identified the appellant in the occurrence, there is no reason to place reliance on the evidence of the informant, who was brother of the deceased. During evidence, this fact has come that the deceased was a veteran criminal and accused in number of cases. 11. The evidence of P.W.3 may not further be treated as truthful, in view of the fact that though the deceased was accused in number of cases relating to serious offences and this question was asked to P.W.3 by the defence in paragraph 27 of his evidence and those cases with F.I.R. number and Sessions Trial Numbers were also stated to him, but this witness simply denied, as if, he was not aware of such fact, whereas, in the evidence of P.W.7 investigating officer in paragraph 3, it has come that deceased was accused in at least 8 cases relating to serious offences. This also suggests that P.W.3/informant has not stated truthfully the fact in his evidence. 12. So far as evidence of P.W.1 Ajit Yadav, brother of the deceased and informant is concerned, he has been examined as hearsay witness and he deposed that he was informed by the informant/P.W.3. Since there is serious doubt in the evidence of P.W.3 itself, there is no reason to place any reliance on the evidence of P.W.1, who had deposed as if he was informed by P.W.3/informant himself. Moreover, on examination of evidence of P.W.1, it further appears that this witness has also tried to suppress the fact that deceased was accused in number of cases relating to serious offences. Meaning thereby that this witness has also not deposed truthfully. During evidence of the investigating officer, this fact has also come that the deceased was accused in a case of assaulting mother and sister of the appellant. All those facts with the case numbers have been discussed in the evidence of witnesses. 13. The investigating officer Kameshwar Singh was examined as P.W.7 and he has proved fardbeyan, which was marked as Ext. 4. He also proved endorsement on the fardbeyan by the officer incharge Pramod Kumar and same was marked as Ext. 4/1. He proved inquest report i.e. Ext. 5, seizure list Ext. 6, challan regarding seizure of material exhibit i.e. Ext. 13. The investigating officer Kameshwar Singh was examined as P.W.7 and he has proved fardbeyan, which was marked as Ext. 4. He also proved endorsement on the fardbeyan by the officer incharge Pramod Kumar and same was marked as Ext. 4/1. He proved inquest report i.e. Ext. 5, seizure list Ext. 6, challan regarding seizure of material exhibit i.e. Ext. 7, two material exhibits i.e. one fired khokha and mobile, which were marked as material Ext. I and II respectively and dead-body challan Ext. 8. Surprisingly, during trial the prosecution has also got a confessional statement of one of the accused Rashid Miya, which was recorded before the police, marked as Ext. 9. In his evidence, he (investigating officer) has stated that he was also present at the time of preparation of the seizure list, however; investigation was entrusted to him on the next date i.e. on 23-02-2014 at about 1:30 PM. In his evidence, though, he had stated that in a field, where dead body was found, there were mark of blood, but no explanation has been given by this witness regarding the reason for recording fardbeyan on the next date, whereas, within few hours from the occurrence, the police had reached to the place of occurrence and seizure list was prepared. At the time of preparation of seizure list, the informant was also present, which has been noticed from the evidence of P.W.3. Moreover, in view of evidence of P.W.4 Daso Yadav, who was accompanying the deceased, there is reason to raise doubt on the evidence of P.W.3 regarding involvement of the appellant. 14. On going through the entire evidence, we are of the considered opinion that the prosecution has miserably failed to prove its case beyond all reasonable doubt. 15. Accordingly, the judgment of conviction dated 18.07.2016 and order of sentence dated 20.07.2016 passed by Sri Vikram Singh, learned 2nd Additional District & Sessions Judge, Jamui in Sessions Trial No. 186 of 2014 (arising out of Khaira P.S. Case No. 32 of 2014) is required to be interfered with and as such, same is, hereby, set aside and appeal is allowed. 16. Since the appellant is in custody and his judgment of conviction and sentence has been set aside, it is, hereby, directed to release him forthwith, if not wanted in any other case.