JUDGMENT : PRAKASH CHANDRA JAISWAL, J. 1. Heard learned counsel for the appellant as well as learned APP for the State and learned counsel for the informant on this criminal appeal. 2. This criminal appeal has been preferred against the Judgment and Order of conviction dated 28.08.2012 and order of sentence dated 31.08.2012 passed by Adhoc Additional District and Sessions Judge-V, Gopalganj in Sessions Trial No. 109 of 2010 and 21 of 2010 arising out of Kateya P.S. Case No. 157 of 2009, whereby the learned trial court convicted the appellant Anil Chaubey for the offence punishable under Section 302/34 of the Indian Penal Code and Section 27 of the Arms Act and sentenced him to undergo imprisonment for life and also slapped him with the fine of Rs. 10,000/- and in default of payment of fine to further undergo R.I. for one year under Section 302/34 of the Indian Penal Code and also sentenced him to undergo R.I. for three years and slapped him with fine of Rs. 1000/- and in default of payment of fine, to further undergo R.I. for six months under Section 27 of the Arms Act. All the sentences were directed to run concurrently. 3. Factual matrix of the case is that Kateya P.S. Case No. 157 of 2009 was instituted under Sections 326, 307 and 302/34 of the Indian Penal Code and Section 27 of the Arms Act against Anil Chaubey and two other unknown miscreants on the basis of the fardbeyan of Dr. Amresh Kumar Pandey, Son of Raj Rishi Pandey, recorded by S.I. B.B. Singh of P.S. Kateya on 11.08.2009 at 11:00 PM with the allegation in succinct that on 11.08.2009 at around 8 PM, the informant was present in his clinic and was busy in treatment of patient. In the meantime, three motorcycle borne miscreants arrived from northern side of the road and abruptly halted the motorcycle in front of his clinic. The person sitting on the extremely back of the said motorcycle pointed firearm towards him whereupon he tilted towards almirah kept in his room to escape the fire. In the meantime, the said accused resorted firing, fortunately he was left unhurt but it hit on the head of the patient, namely, Ratan Kumar Kanu. Sustaining injury, he fell down on the ground. Then aforesaid miscreants decamped towards Shiv Mandir Chowk on the said motorcycle. In the meantime, the said accused resorted firing, fortunately he was left unhurt but it hit on the head of the patient, namely, Ratan Kumar Kanu. Sustaining injury, he fell down on the ground. Then aforesaid miscreants decamped towards Shiv Mandir Chowk on the said motorcycle. The persons sitting on the extremely back of the motorcycle and resorted firing was Anil Chaubey to whom he identified in the light of generator who had earlier demanded extortion of Rs. 5 lacs from him on his mobile phone time and again from 29.04.2009 to 08.05.2009 regarding which he had filed Kateya P.S. Case No. 75 of 2009 under Sections 386, 387, 504 and 120B of the Indian Penal Code. He could not identify rest two other persons sitting on the said motorcycle. The injured was rushed by his family members and villagers to Referral Hospital, Kateya where the Doctor declared him brought dead. Later on, he learnt that during the course of retreat, miscreants had resorted firing on the grocery shop of Subhash Kanu located near Pakaha More and also upon Sadhu Yadav on the road near Gandak making him injured. 4. Aforesaid case was investigated by the police and on conclusion of the investigation, I.O. submitted charge-sheet against the aforesaid accused under Sections 326, 307 and 302/34 of the Indian Penal Code and Section 27 of the Arms Act. 5. On receiving the charge-sheet and the case diary and perusing the same, the learned Magistrate took cognizance of the offence against the accused and committed the case to the court of sessions and on transfer finally the case came in the seisin of Adhoc Additional District and Sessions Judge-V, Gopalganj for trial. 6. Charge against the accused was framed under Sections 326/34, 307/34 and 302/34 of the Indian Penal Code and Section 27 of Arms Act. Charge was read over and explained to him to which he pleaded not guilty and claimed to be tried. Later on Charge under Sections 307 and 302/34 of the Indian Penal Code was framed against the said accused to which he also pleaded not guilty and claimed to be tried. 7. To substantiate its case, in ocular evidence, the prosecution has examined altogether seventeen prosecution witnesses namely, Subhash Prasad as PW-1, Umesh Pandey as PW-2, Heeraman Thakur as PW-3, Piyush Kumar Mishra as PW-4, Satyendra Pratap Pandey as PW-5, informant Dr. 7. To substantiate its case, in ocular evidence, the prosecution has examined altogether seventeen prosecution witnesses namely, Subhash Prasad as PW-1, Umesh Pandey as PW-2, Heeraman Thakur as PW-3, Piyush Kumar Mishra as PW-4, Satyendra Pratap Pandey as PW-5, informant Dr. Amresh Kumar Pandey as PW-6, Bijay Barnwal as PW-7, Amar Nath Kanu as PW-8, Sadhu Yadav as PW-9, Dr. Sanjay Kumar Singh, member of the Medical Board as PW-10, Dr. Shashi Kumar Gupta another member of the Medical Board as PW-11, I.O. Brij Bihari Singh as PW-12, Dr. A. K. Suman, one another member of the Medical Board as PW-13, Kumar Sanjay, 2nd I.O. of the case as PW-14, Dr. A. K. Chaudhary who has conducted the autopsy of the cadaver of the deceased as PW-15, Dr. Sanjay Kumar who has examined another victim Sadhu Yadav as PW-16 and Dharmdeo Prasad as PW-17. Out of the aforesaid witnesses, PW-17 Dharmdeo Prasad happens to be formal witness. Prosecution has also filed and proved some documents by way of documentary evidence. 8. Statement of the accused was recorded under Section 313 of the Code of Criminal procedure. The case of the defence is complete denial of the occurrence. The accused has neither adduced any ocular nor documentary evidence in buttress of his case. 9. After hearing the parties and perusing the record, the learned trial court has passed the aforesaid 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 this 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 learned counsel for the appellant that though witnesses Umesh Pandey (PW-2), Heeraman Thakur (PW-3), Piyush Kumar Mishra (PW-4) and Satyendra Pratap Pandey (PW-5) have claimed to have identified all the three miscreants involved in the occurrence claiming themselves to be the eye witnesses of the occurrence and present at the place of occurrence at the time of occurrence, but in the fardbeyan which was recorded after three hours of the occurrence, the informant has only named one accused i.e. the appellant in the occurrence which creates serious doubt about the prosecution case. It is further submitted that the appellant was not involved in the occurrence rather has been falsely implicated in the case due to animosity with the prosecution party. It is further submitted that the doctor conducting the autopsy of the cadaver of the deceased has found wound of entry and wound of exit on the head of the deceased which means that the bullet must have travelled out of the body of the deceased and must be present at the place of occurrence either lying on the ground or embedded in the Almirah or wall, but I.O. has neither found any bullet on the place of occurrence or any mark of firing there. I.O. has also not found any blood at the place of occurrence. The aforesaid aspect of the case eloquently rules out the prosecution case and taking place of the alleged occurrence at the aforesaid place of occurrence. It is further submitted that from perusal of the inquest report, it appears that the inquest report of the dead body of the deceased was prepared at Shiv Mandir Chowk and not at the alleged place of occurrence i.e. at the clinic of the informant or in the Referral Hospital, Kateya. The aforesaid aspect of the case also goes to rule out the prosecution case and taking place of the alleged occurrence at the place of occurrence. It is also submitted that all the material witnesses examined by the prosecution happen to be family members of the informant and no independent witness has been examined by the prosecution, though the place of occurrence is at Kateya Bazar and number of shops are located in the vicinity, and no plausible reason has been assigned by the prosecution for non-examination of the independent witnesses of the case which creates serious doubt about the prosecution case. It is also submitted that the occurrence is of 11.08.2009 at 8 PM and fardbeyan of the informant was recorded on the same date at 11 PM, but information of the occurrence to the police station was given and F.I.R. was lodged on 12.08.2009 at 3 PM i.e. after inordinate delay of 16 hours, albeit Police Station is located at a distance of 1/4th Km (250 meters) from the place of occurrence. The prosecution has not given any plausible explanation for making the aforesaid delay in sending the information to the police station and lodging the F.I.R. which also creates doubt about the prosecution case. Thus, the prosecution has utterly and miserably failed to substantiate the prosecution case and bring home the charges levelled against the appellant beyond all reasonable doubts by adducing consistent, trustworthy and reliable ocular and documentary evidence. Hence the appellant is entitled to be acquitted. 13. On the other hand, learned APP and learned counsel for the informant advocating the correctness and validity of the impugned Judgment and Order of conviction and sentence submitted that the informant PW-6, PW-2, PW-3, PW-4 and PW-5 who happen to be eye witnesses of the occurrence have consistently supported the prosecution case. The ocular evidence of the prosecution also stands corroborated by the medical evidence and learned lower court correctly appreciating the facts and evidence available on record has rightly passed the aforesaid Judgment and Order of conviction and sentence which is liable to be upheld and this appeal has no substance in it and is liable to be dismissed. 14. To substantiate its case, the prosecution has examined altogether eight material witnesses of the case. Out of them, PW-1 Subhash Prasad, PW-7 Bijay Barnwal and PW-8 Amar Nath Kanu happen to be the hearsay witnesses. As PW-1 Subhash Prasad in whose grocery shop the appellant is said to have resorted firing in the course of retreat, has stated in Para-4 of his cross-examination that he had not witnessed any miscreant on the date of occurrence. On the following day, one person divulged him the name of accused in the occurrence but he failed to resurrect his memory regarding name of the person who had disclosed the same to him rather has further stated that people were discussing the matter. In para-2 of his examination-in-chief, he has stated that he heard that accused Anil Chaubey was resorting firing. In Para-3 of his examination-in-chief, he has stated that he had never witnessed Anil Chaubey, so he could not identify him. The said witness has not given the source and identification of the person disclosing the factum of resorting firing by the appellant and no one has come forward to corroborate the divulgence of the name of the appellant to him. Thus, his testimony even as hearsay witness is not admissible in evidence. The said witness has not given the source and identification of the person disclosing the factum of resorting firing by the appellant and no one has come forward to corroborate the divulgence of the name of the appellant to him. Thus, his testimony even as hearsay witness is not admissible in evidence. While PW-7 Bijay Barnwal has stated in his examination-in-chief that at the time of occurrence, he had gone to market to fetch vegetable. Later on when he arrived at the clinic of Dr. Amresh Kumar Pandey, he learnt about the occurrence. He has failed to disclose the name of any accused involved in the occurrence. He has also failed to identify the appellant present in dock. PW-8 Amar Nath Kanu who happens to be brother of the deceased has stated in his examination-in-chief that he was present in the house at the time of occurrence. He got information there that his brother died due to firing on him. He has further stated that he had listened that three motorcycle borne criminals had arrived at the clinic and gunned his brother down. He has not taken the name of the appellant as the assailant of the deceased. 15. PW-2 Umesh Pandey who happens to be the nephew of the informant has stated in his examination-in-chief that at the time of occurrence he was regressing to his medicine shop from Kateya Bazar and when he arrived near the dispensary of his uncle Dr. Amresh Kumar Pandey, he spotted mob there and Bablu Singh, Amresh Kushwaha and Anil Chaubey escaping on the motorcycle. Bablu Singh was driving motorcycle while Anil Chaubey was sitting on the extreme back of the said motorcycle. Anil Chaubey resorted firing in the clinic of Dr. Amresh Kumar Pandey which hit Ratan Kanu. The aforesaid statement of PW-2 appears to be self-contradictory as at one place in his statement, he has stated that he witnessed the crowd at the clinic of his uncle Dr. Amresh Kumar Pandey and the accused persons escaping on the motorcycle, then how he witnessed the appellant Anil Chaubey resorting firing in the clinic of his uncle which hit the deceased Ratan Kanu, that too in presence of the crowd, while there is no such case of the prosecution that the appellant resorted firing in the clinic of the informant in presence of the crowd. Moreover in Para-9 of his cross-examination, he has further stated that at the time of occurrence while he was regressing from the market, he listened firing sound in the market, then he arrived at the clinic. It took three minutes to arrive at the clinic and when he arrived at the clinic, he found crowd of around 5000 people there. While as per prosecution case, the accused persons escaped towards market immediately after resorting firing in the clinic of the informant and the informant in Para-13 of his cross-examination has stated that it took 10 seconds in the occurrence and within that period, the accused persons escaped away. Aforesaid aspect of the case eloquently rules out witnessing of the occurrence by PW-2. Hence, PW-2 does not happen to be eye witness of the occurrence. 16. PW-3 Heeraman Thakur who happens to be chaukidar of the informant though has made an abortive bid to support the prosecution case by giving statement in consonance to the prosecution case regarding resorting firing at the clinic of the informant by Anil Chaubey which hit the deceased Ratan Kanu which proved fatal. But in para-8 of his cross-examination, he has stated that at the time of occurrence, the deceased was only patient present in the clinic and his father was also present there. While the informant (PW-6) in para-9 of his cross-examination has stated that at the time of occurrence, there was only one patient in his clinic. In Para-10 of his cross-examination, he has further stated that his father had gone to fetch medicine and he regressed there two minutes later to the occurrence. Moreover, PW-3 has stated in para-8 of his cross-examination that out of three accused persons, only one was armed with pistol while PW-2 has stated in Para-5 of his cross-examination that he had divulged to the police that all the three accused persons armed with weapons were proceeding towards Shiv Mandir. The aforesaid contradictory statement of PW-3 goes to rule out witnessing of the occurrence by him. The aforesaid contradictory statement of PW-3 goes to rule out witnessing of the occurrence by him. Moreover, the said witness appear to be dam lier as at one place in Para-2 of his examination-in-chief, he has vented his ignorance about reason of resorting firing by the appellant, but later on in the said para, he has stated that the appellant had demanded extortion money from the doctor and he had arrived to eliminate the doctor for non-fulfillment of his demand. Hence, PW-3 does not appear to be reliable and worth credence witness. 17. PW-4 Piyush Kumar Mishra who happens to be compounder of the informant though has also made an abortive bid to support the prosecution case by giving his statement in consonance to the prosecution case in his examination-in-chief. But in Para-6 of his cross-examination, he has stated that at the time of occurrence, there were 3-4 patients in the clinic in quite contradiction to the statement given by the informant (PW-6). As per the informant, there was only one patient i.e. the deceased present in his clinic at the time of occurrence. In Para-9 of his cross-examination, PW-4 has stated that at the time of occurrence, he was strolling on the road located at 60 feet from the place of occurrence. As per the statement of the informant, appellant resorted firing upon the deceased during the course of examining the patient i.e. the deceased. But in quite contradiction to the aforesaid prosecution case, PW-4 has stated in Para-11 of his cross-examination that father of the patient had gone away to fetch medicine after getting the patient (his son) examined and firing took place after examining the patient. The aforesaid contradiction and aforesaid aspect of the case rules out witnessing of the occurrence by PW-4 Piyush Kumar Mishra. 18. PW-5 Satyendra Pratap Pandey who happens to be brother-in-law (bahnoi) and compounder of the informant has also made an abortive bid to support the prosecution case in his examination-in-chief. But in Para-7 of his cross-examination, he has stated while he was regressing from the market, he witnessed accused resorting firing and also listened firing sound at a distance of 20 steps (30 feet) south of the clinic. But in Para-7 of his cross-examination, he has stated while he was regressing from the market, he witnessed accused resorting firing and also listened firing sound at a distance of 20 steps (30 feet) south of the clinic. The aforesaid statement of PW- 5 indicates that he was not present in the clinic at the time of occurrence rather was regressing from market, but PW-4 has stated in Para-9 of his cross-examination that PW-5 Satyendra Pratap Pandey was present in the clinic at the time of occurrence. The aforesaid contradictory statement between the testimonies of the aforesaid witnesses creates serious doubt about the presence of the said witness (PW-5) at the place of occurrence i.e. in the clinic of the doctor at the time of occurrence. Moreover, from perusal of the testimony of PW- 3, PW-4 and PW-5, it appears that the said witnesses have claimed to have identified all the three accused persons in the occurrence at the time of occurrence and have named them. The aforesaid witnesses were allegedly present in and around the clinic at the time of occurrence and witnessed the occurrence. They happen to be chaukidar, compounder and brother-in-law of the informant. As per the natural course of conduct, they must have divulged the name of all three accused persons involved in the occurrence to the informant. But from perusal of the fardbeyan of the informant and his testimony, it appears that the informant has taken name of only one accused i.e. the appellant Anil Chaubey in the occurrence. The said fardbeyan was recorded three hours later to the occurrence. The aforesaid aspect of the case eloquently indicates that the aforesaid three witnesses, namely, PW-3, PW-4 and PW-5 were not present at the place of occurrence at the time of occurrence and had not witnessed the occurrence and the accused persons involved in the occurrence. As had they been present at the place of occurrence and witnessed the occurrence, they would have divulged the name of all the three accused persons to the informant preceding to giving fardbeyan by him and the informant would have disclosed the name of rest two accused persons involved in the occurrence in his fardbeyan. 19. The informant Dr. Amresh Kumar Pandey (PW-6) has also made an abortive bid to support the prosecution case by giving statement in his examination-in-chief in consonance to the prosecution case. 19. The informant Dr. Amresh Kumar Pandey (PW-6) has also made an abortive bid to support the prosecution case by giving statement in his examination-in-chief in consonance to the prosecution case. But in Para-2 of his examination-in-chief, he has stated that at the time of occurrence, his compounder Piyush Kumar Mishra (PW-4) and Satyendra Pratap Pandey (PW-5) were present in his clinic along with him, but PW-4 Piyush Kumar Mishra has stated in Para-9 of his cross-examination that at the time of occurrence, he was not present besides the doctor rather he was strolling on the road located at a distance of 60 feet from the place of occurrence, while PW-5 Satyendra Pratap pandey has stated in Para-7 of his cross-examination that he listened firing sound and witnessed the accused resorting firing from a distance of 30 feet away from the clinic in course of regressing from the market. As per the fardbeyan of the informant, injured was rushed to Referral Hospital, Kateya for treatment by his family members and villagers, but in quite contradiction to the aforesaid fardbeyan, the informant has stated in Para-2 of his examination-in-chief that he himself rushed the injured Ratan Kanu to Referral Hospital, Kateya where the doctor declared him brought dead. The aforesaid contradiction between the fardbeyan and the statement of the informant and contradiction between the testimonies of the aforesaid witnesses creates serious doubt about the credibility of the informant. Moreover, as per PWs. 3, 4 and 5, they had identified three accused persons including the appellant at the time of occurrence, but the informant has named only one accused i.e. the appellant in the occurrence though PWs. 3, 4 and 5 happen to be compounder, chaukidar and brother-in- law of the informant and his fardbeyan was recorded three hours later to the occurrence while F.I.R. was recorded six hours later there too. Being the chaukidar, compounder and brother-in-law of the informant, the aforesaid witnesses must have disclosed the name of the two other accused persons involved in the occurrence to the informant preceding to giving fardbeyan by him and lodging the F.I.R. but the informant has not named rest two accused persons in the occurrence either in his fardbeyan or in his examination-in-chief. The aforesaid conduct of the informant also creates serious doubt about the credibility of the informant and the aforesaid testimony of the informant does not inspire our confidence to hold conviction of the appellant relying upon his testimony. 20. From perusal of para-8 of cross-examination of PW-3, it appears that there are 10-12 shops in the vicinity of the place of occurrence and all the shops were open at the time of occurrence but no independent witness has come forward to support the prosecution case which also creates serious doubt about the prosecution case. 21. The occurrence is of 11.08.2009 at around 8 PM and fardbeyan of the informant was recorded on the said date at 11 PM, but the information of the occurrence was given to the P.S. Kateya and F.I.R. was lodged on 12.08.2009 at around 3 PM i.e. after 16 hours of recording the fardbeyan of the informant though the P.S. is located mere at a distance of 1/4th Km (250 meters) from the place of occurrence. Prosecution has failed to assign any plausible explanation to explain the aforesaid delay in lodging the F.I.R. and giving information of the occurrence to the P.S. located at a distance of mere 250 meters from the place of occurrence. 22. From perusal of para-12 and 17 of cross-examination of the I.O. it appears that I.O. has not found any blood on the place of occurrence and he has also not noticed any whole in the counter caused by the bullet. He has also not reported about finding of any bullet at the place of occurrence. Though as per the post mortem report, doctor has found wound of entry and wound of exit on the head of the deceased which indicates that the bullet had travelled out of the body of the deceased and must have embedded anywhere at the place of occurrence or lying there. The aforesaid aspect of the case also creates serious doubt about the prosecution case and happening of the occurrence at the place of occurrence. 23. From perusal of the record, it appears that the occurrence took place in the clinic of the informant located at Cinema Road, Kateya and the injured was rushed to Referral Hospital, Kateya after the occurrence where he was declared brought dead by the doctor. 23. From perusal of the record, it appears that the occurrence took place in the clinic of the informant located at Cinema Road, Kateya and the injured was rushed to Referral Hospital, Kateya after the occurrence where he was declared brought dead by the doctor. But from perusal of the inquest report, it appears that the inquest report of the dead body of the deceased was not prepared at the Referral Hospital, Kateya rather at Shiv Mandir Chowk. There is no case of the prosecution that from the Referral Hospital, Kateya, dead body of the deceased was brought at Shiv Mandir Chowk, so the million dollar question arises as to how the inquest report was prepared at Shiv Mandir Chowk. The aforesaid aspect of the case creates serious doubt about the prosecution case and taking place of the occurrence at the alleged place of occurrence. 24. As per the prosecution case, the appellant had demanded ransom of Rs. 5 lacs from the informant and the informant had lodged Kateya P.S. Case No. 75 of 2009 under Sections 386, 387, 504 and 120B of the Indian Penal Code against him preceding to the occurrence which indicates that there is animosity between the parties. Animosity cuts both the edge. But in view of the aforesaid contradiction with the prosecution case and the statement of the informant, the statement of witnesses inter se, non-examination of any independent witness of the occurrence, delay in lodging F.I.R. and non-corroboration of the testimony of the informant by any eye witness of the occurrence, false implication of the appellant due to aforesaid animosity cannot be ruled out. 25. In the facts and circumstances of the case, we find and hold that the prosecution has utterly and miserably failed to substantiate the prosecution case beyond all reasonable doubts by adducing consistent, trustworthy and reliable ocular and documentary evidence. Hence, the impugned judgment and order of conviction and sentence passed by the learned trial court is set aside and the appellant is acquitted from the charges levelled against him. As the appellant is in custody, he is directed to be released forthwith, if not wanted in any other case. Accordingly, this criminal appeal is allowed.