JUDGMENT : HEMANT KUMAR SRIVASTAVA, J. 1. Heard learned amicus curiae appearing for the appellant as well as learned Additional Public Prosecutor for the State. 2. The instant appeal has been preferred against the impugned judgment of conviction and sentence order dated 12.07.1994 passed by learned 12th Additional Sessions Judge, Munger in Sessions Case No. 736 of 1990 arising out of Dharhara P.S. Case No. 61 of 1990 by which and whereunder, learned trial Judge convicted the appellant for the offence punishable under Section 302/34 of the Indian Penal Code and accordingly, sentenced him to undergo life imprisonment for the above stated offence. 3. PW-10, namely, Manish Kumar Tomar @ Mukesh gave his ferdbeyan to PW-14 on 12.07.1990 at 09:00 P.M. at Jamalpur police station to this effect that on the same day at about 06:30 PM. he along with his father Bimla Nand Singh (deceased) was going to Dashrathpur by Maxi No. BRH 5805 but the aforesaid maxi developed some mechanical problem. However, the driver and khalasi of the aforesaid maxi, anyhow, removed the defects and again proceeded towards their destination and while they were on way, the aforesaid maxi was stopped on the request of khalasi who was sitting on the roof of the aforesaid maxi. He further stated that when the aforesaid maxi stopped, three persons being armed with pistols entered into the aforesaid maxi and out of them, two persons asked the Bimla Nand Singh to get down from the maxi but when Bimla Nand Singh refused to obey the command and made protest, one person out of the aforesaid three persons shot fire on Bimla Nand Singh. Thereafter another person, too, shot fire on Bimla Nand Singh. The PW-10 described the features of the aforesaid persons and also described that aforesaid persons were wearing ganji and lungi. However, after making fire on Bimla Nand Singh, the aforesaid persons got down from the maxi and again three other persons entered into the maxi and out of the aforesaid three persons, PW-10 claimed to identify the appellant who asked his companions to see as to whether Bimla Nand Singh was alive or dead and if he is still alive, then shoot him again and thereafter, the companions of appellant again shot fire on the deceased Bimla Nand Singh and after the occurrence, they fled away from there. The father of PW-10 died instantaneously. The father of PW-10 died instantaneously. The passengers of the aforesaid maxi also started running hither and thither. However, on the noise raised by informant and others, police reached there and informant (PW10) was brought to police station. PW-10 also disclosed that two empty cartridges and one pillet were lying in the aforesaid maxi. The informant further disclosed that his father used to make protest against the illegal activities of the appellant who was Mukhiya of Pachrukhi Panchayat and due to aforesaid protest, the appellant got inimical term with his father. On the basis of aforesaid ferdbeyan, Dharhara P.S. Case No. 61 of 1990 for the offences punishable under Sections 302/34 of the Indian Penal Code and 27 of the Arms Act was registered on 13.07.1990. The formal F.I.R. was drawn up on the same day and the F.I.R. was sent to concerned court through special messenger on the same day i.e. 13.07.1990. However, the F.I.R. was put up before the concerned Magistrate on 15.07.1990. 4. PW-14 took charge of investigation but subsequently, he handed over charge of investigation to PW-11 who was at the relevant time posted as officer in charge of East Colony police station. PW-11 completed the investigation and submitted charge sheet against the appellant. The cognizance of the offence was taken and the case was committed to the court of sessions. Accordingly, the sole appellant stood trial and charged for the offence punishable under Section 302/34 of the Indian Penal Code. In course of trial, altogether, 14 prosecution witnesses were examined and several documents were exhibited. The defence also examined, altogether, 8 witnesses and got exhibited some documents in evidence. The statement of appellant was recorded under Section 313 of the Cr.P.C. in which he denied the prosecution story and claimed his false implication. 5. The learned trial court having scrutinized the evidences available on the record convicted and sentenced the appellant in the manner as stated above. 6. Learned amicus curiae appearing for the sole appellant challenged the impugned judgment of conviction and sentence order arguing that learned trial court failed to appreciate the evidences available on record in its right perspective as a result whereof, learned court below came to wrong conclusion. 6. Learned amicus curiae appearing for the sole appellant challenged the impugned judgment of conviction and sentence order arguing that learned trial court failed to appreciate the evidences available on record in its right perspective as a result whereof, learned court below came to wrong conclusion. Learned amicus curiae further submitted that learned trial court failed to take note of this fact that there was delay of three days in sending the F.I.R. to the court and the aforesaid delay was fatal to the prosecution case, particularly, in the circumstance when there was admitted enmity between the deceased and the appellant. Learned amicus curiae further pointed out that presence of so-called eye witnesses on the place of occurrence was highly doubtful as PW-10, nowhere, claimed in his ferdbeyan that PW-6 and PW-9 were also present in the maxi at the time of alleged occurrence and so far as PW-10 is concerned, PW-10 happens to be son of deceased and it has come in course of trial that he had grudge against the appellant because appellant had raised voice against his illicit relation with one Guddi Kumari but the learned trial court overlooked the aforesaid facts and committed illegality in convicting the appellant. 7. On the other hand, learned Additional Public Prosecutor appearing for the State supported the impugned judgment of conviction and sentence order arguing that PW-6, PW-9 and PW- 10 are eye witness and all the above stated witnesses very clearly stated that the appellant had also participated in the alleged crime as it was appellant who had ordered the unknown persons to shoot the deceased and apart from this, admittedly, there was enmity between the deceased and the appellant and it is well settled principle of law that enmity is a double edged weapon which cuts in both ways and so far as present case is concerned, eye witnesses, specifically, stated that appellant was also present on the place of occurrence and ordered the others to shoot the deceased and, therefore, there is no scope for this court to interfere into the impugned judgment of conviction and sentence order. 8. Having heard the rival contentions of the parties, we went through the record. In the present case, the killing of the deceased is not in dispute and the only dispute between the parties is about participation of the appellant in the alleged crime. 8. Having heard the rival contentions of the parties, we went through the record. In the present case, the killing of the deceased is not in dispute and the only dispute between the parties is about participation of the appellant in the alleged crime. The prosecution claims that the appellant had also participated in the alleged occurrence and had common intention to commit the murder of the deceased whereas the appellant claims that deceased was killed by some unknown persons due to enmity and litigation but the appellant has been implicated by the informant as the appellant had raised protest against the illicit relation of informant with his cousin sister, namely, Guddi Kumari. 9. Now, it has to be seen as to whose version is correct. No doubt, the prosecution has examined, altogether, 14 witnesses but only PW-6, PW-9 & PW-10 claimed themselves to be eye witness of the alleged occurrence and remaining witnesses either have been declared hostile or do not claim their presence at the time of alleged occurrence. 10. It is admitted case of the prosecution that ferdbeyan of PW-10 was recorded on 12.07.1990 at 09:00 PM at Jamalpur police station and subsequently, Dharhara P.S. Case No. 61 of 1990 was registered on 13.07.1990 and on the same day, the F.I.R. was sent to concerned court but the same was put up before the concerned Magistrate on 15.07.1990. Therefore, admittedly, there was delay in sending the F.I.R. to the concerned Magistrate. 11. PW-14, the then officer in charge of Jamalpur police station, stated that after recording the ferdbeyan of PW-10, he sent the ferdbeyan of PW-10 to Dharhara police station as the place of occurrence was under the jurisdiction of Dharhara police station. PW- 14 proved the endorsement of ferdbeyan as Exhibit-12. This witness further admitted that after recording the ferdbeyan of PW-10, he prepared production cum seizure list of empty cartridges and pillet which were produced before him by the PW-10. It would appear from perusal of the aforesaid statement of PW-14 that Exhibit-3 was sent to Dharhara police station on 12.07.1990 by PW-14. This witness further admitted that after recording the ferdbeyan of PW-10, he prepared production cum seizure list of empty cartridges and pillet which were produced before him by the PW-10. It would appear from perusal of the aforesaid statement of PW-14 that Exhibit-3 was sent to Dharhara police station on 12.07.1990 by PW-14. However, the prosecution claims that aforesaid ferdbeayn was received in Dharhara police station on 13.07.1990 and on the same day, it was sent to the court but even then the aforesaid ferdbeyan was reached to the concerned court after two days and no explanation regarding the aforesaid delay has been given by the prosecution. Therefore, in our view, the possibility of manipulation of ferdbeyan cannot be ruled out, particularly, in the circumstance, when the PW-9 admitted in his cross examination that when the police party reached on the place of occurrence, he did not disclose the name of appellant before the police nor the police asked from him about the name of assailant. However, it is admitted by the PW-14 that empty cartridges and pillet were produced by PW-10 before him at Jamalpur police station and furthermore, PW-11 admitted at para-4 of his examination in chief that he seized blood stained soil from the place of occurrence. It is highly suspected as to how the blood was found on the earth when according to prosecution case, the deceased was killed in a maxi and after the occurrence the dead body of deceased along with informant was brought to Jamalpur police station in the said maxi. It is pertinent to note here that the investigating officer did not seize any blood from the said maxi nor the aforesaid maxi was seized. No doubt, it would appear from perusal of the impugned judgment that maxi in question was released by the order of the court but that is not amount to valid seizure of the aforesaid maxi. Therefore, the aforesaid lacuna of the prosecution case creates doubt about the place of occurrence and in our view, prosecution failed to prove the place of occurrence beyond all shadow of reasonable doubts. 12. PW-6 and PW-9 claimed that they were travelling by the same maxi in which deceased and PW-10 were travelling. Therefore, the aforesaid lacuna of the prosecution case creates doubt about the place of occurrence and in our view, prosecution failed to prove the place of occurrence beyond all shadow of reasonable doubts. 12. PW-6 and PW-9 claimed that they were travelling by the same maxi in which deceased and PW-10 were travelling. Admittedly, PW-6 and PW-9 are co-villagers of PW-10 but PW-10 in his ferd beyan or the statement recorded under Section 161 of Cr.P.C., nowhere, stated about the presence of PW-6 and PW-9 in the said Maxi. It appears that in course of trial, PW-10 improved his statement and stated about the presence of PW-6 and PW-9. Moreover, in course of trial, it came to light that PW-6 was labourer of the deceased whereas PW-9 had inimical term with the appellant and, therefore, no reliance can safely be placed upon the testimonies of PW-6 and PW-9. 13. PW-10 is informant and claims that he was travelling with deceased on the alleged date of occurrence and he was sitting in maxi by side of the deceased at the relevant time. The appellant is covillager of PW-10 and PW-10 has admitted in his deposition that appellant was known to him since his childhood and, therefore, it is clear that PW-10 was, too, known to the appellant since long back and, therefore, it is hard to believe that when appellant went to kill the father of PW-10, he would spare PW-10 particularly in the circumstance, when PW-10 was sitting by side of the deceased and in our view, had the PW-10 was sitting by side of the deceased at the time of alleged occurrence, he would have certainly been killed by the appellant as well as his associates and he would not have been spared to depose against the appellant in the court. Therefore, in our view, the presence of PW-10 at the time of alleged occurrence also appears to be doubtful and no reliance can safely be placed upon the testimony of PW-10. 14. Therefore, on the basis of aforesaid discussions, we have no option except to set aside the impugned judgment of conviction and sentence order. Accordingly, the impugned judgment of conviction and sentence order is, hereby, set aside. The appellant is acquitted of the charges. He is on bail. He is discharged from the liabilities of his bail bonds. 15. 14. Therefore, on the basis of aforesaid discussions, we have no option except to set aside the impugned judgment of conviction and sentence order. Accordingly, the impugned judgment of conviction and sentence order is, hereby, set aside. The appellant is acquitted of the charges. He is on bail. He is discharged from the liabilities of his bail bonds. 15. First and last page of this judgment be handed over to learned amicus curiae for needful.