JUDGMENT : Rakesh Kumar, J. The appellant was convicted and sentenced in Sessions Trial No. 81 of 1997 (arising out of Charpokhari P.S. Case No. 115 of 1996) by Sri Basant Kumar Dikshit, learned Additional Sessions Judge, F.T.C.-IV, Bhojpur, Ara (hereinafter referred to as the ‘Trial Judge’) for commission of offence under Sections 302/34 of the Indian Penal Code by judgment dated 06-02-2006 and by order dated 13-02-2006, he was sentenced to undergo rigorous imprisonment for seven years. 2. The appeal was earlier admitted by order of a Single Bench of this Court and while admitting the appeal, considering the fact that appellant was held guilty for commission of offence under Sections 302/34 of the Indian Penal Code, whereas, he was sentenced for rigorous imprisonment for only seven years, which is contrary to the panel provision and as such, rule was issued for enhancement of sentence also. Thereafter, by order dated 18-05-2006, the appellant was directed to be released on bail during pendency of the appeal. Subsequently, in view of order dated 22-11-2017 passed by a Single Bench of this Court, the matter has been listed before the Division Bench. 3. Short fact of the case is that on 15-11-1996 at 11:00 AM, Sub-Inspector of Police M.P. Yadav (not examined) recorded fardbeyan of Sona Lal Singh (deceased) in Surgical Ward of Sadar Hospital, Ara on Bed No. 17. In the fardbeyan, deceased Sona Lal Singh disclosed that on the same date, his neighbour Shiv Pujan Singh (appellant) was erecting bamboo on the land of the deceased, over which, the deceased/informant was having his own share. When his mother asked him not to erect the bamboo, she was abused, which was opposed by Sona Lal Singh (deceased). Thereafter, one Diwan Master exhorted using abusive language to kill him, then Shiv Lakhan Singh S/o Shiv Pujan Singh (appellant), with intent to kill, gave one shot from his pistol, however; he (deceased) tried to flee away, but the bullet hit his back and he fell down. The informant (deceased) further disclosed that this appellant thereafter gave one lathi blow on his head. He further stated that one relative of Shiv Pujan Singh (appellant), who was not known to him, had also given lathi blow on his right hand. He claimed that the entire occurrence was seen by Sudama Singh (P.W.10), Gorakh Thakur (P.W.8) and Ram Kumar Singh (P.W.11). He further stated that one relative of Shiv Pujan Singh (appellant), who was not known to him, had also given lathi blow on his right hand. He claimed that the entire occurrence was seen by Sudama Singh (P.W.10), Gorakh Thakur (P.W.8) and Ram Kumar Singh (P.W.11). The reason for dispute was explained by the informant, as land dispute. He stated that he was carried by his mother to Sadar Hospital for treatment, where his treatment was going on. The informant put his signature on the fardbeyan. 4. On the basis of said fardbeyan of Sona Lal Singh (deceased), a formal F.I.R., vide Charpokhri P.S. Case No. 115 of 1996, was registered on 16-11-1996 at 9:15 AM for commission of offence under Sections 324, 307, 323, 109, 34 of the Indian Penal Code and Section 27 of the Arms Act, 1959 against (1) Shiv Lakhan Singh, (2) Shiv Pujan Singh and (3) Diwan Master. After investigation, chargesheet was submitted on 14-02-1997 against Shiv Lakhan Singh and appellant Shiv Pujan Singh, keeping investigation open against other. On 25-02-1997, the learned Magistrate took cognizance of offence and on 01-03-1997, the case was committed to the court of sessions and thereafter, it was numbered as Sessions Trial No. 81 of 1997. On 18-06-1997, charge was framed under Section 302 read with Section 34 of the Indian Penal Code against appellant. However, before charge, since one of the chargesheeted accused Shiv Lakhan Singh had claimed juvenility, his case was separated. 5. During trial, to prove its case from the prosecution side, altogether 11 witnesses were examined. P.W.1 Manilal Singh, brother of the informant, P.W.3 Meena Devi and P.W.4 Mantura Devi were examined as eye-witnesses to the occurrence. P.W.2 Rameshwar Singh, father of the informant (deceased) has been examined on the point of occurrence and he also stated that after the occurrence, he was also assaulted by the accused persons. P.W.6 Dr. Arvind Kumar Singh had conducted post-mortem examination on the dead body of the deceased and proved postmortem report, which was marked as Ext.3. P.W.7 Thik Lal Singh, P.W.8 Gorakh Thakur, P.W.9 Bhawani Singh, P.W.10 Sudama Singh and P.W.11 Ramkumar Singh had not supported the prosecution case and as such, they were declared hostile. Out of hostile witnesses, P.W.8 Gorakh Thakur, P.W.10 Sudama Singh and P.W.11 Ram Kumar Singh were shown as eye-witnesses to the occurrence in the F.I.R. itself. P.W.7 Thik Lal Singh, P.W.8 Gorakh Thakur, P.W.9 Bhawani Singh, P.W.10 Sudama Singh and P.W.11 Ramkumar Singh had not supported the prosecution case and as such, they were declared hostile. Out of hostile witnesses, P.W.8 Gorakh Thakur, P.W.10 Sudama Singh and P.W.11 Ram Kumar Singh were shown as eye-witnesses to the occurrence in the F.I.R. itself. P.W.5 Chandrika Singh, who is investigating officer of the case, had proved his signature on fardbeyan as well as on formal F.I.R., which were marked as Ext. 1/2 and 1/3 respectively. He also proved signature of Sub Inspector of Police M.P. Yadav, who had recorded fardbeyan, which was marked as Ext. 2. 6. After conclusion of the prosecution evidence, on 20-09-2004, evidences and circumstances collected during trial against the appellant were explained to him and his statement under Section 313 of the Code of Criminal Procedure, 1973 (for short “Cr.P.C.”) was recorded, in which, he claimed that he was falsely implicated and to disapprove the prosecution case, from defence side, one witness namely Raj Narayan Choudhary was examined as D.W.1. 7. Sri Bhavesh Kumar, learned counsel for the appellant, after placing entire evidence, has argued that in any case, the appellant was not required to be convicted and sentenced under Section 302/34 of the Indian Penal Code, rather it was a case for commission of offence under Section 323 of the Indian Penal Code or for commission of offence under Section 324 of the Indian Penal Code. However, he has argued that entire prosecution case was required to be disbelieved only on the ground that prosecution during entire evidence had not come out with clean hands and the prosecution had suppressed the fact that it was free fight in between the parties. He further submits that during evidence, the fact has come that this appellant had also received injury and he was admitted in Sadar Hospital and only after being discharged from the hospital, he was arrested by the police on 22-11-1996. He further submits that in any event, it was not a pre-planned murder, rather the occurrence had taken place in a spur of moment and appellant was having share in the land, over which, alleged occurrence had taken place. Sri Bhavesh Kumar, learned counsel for the appellant has also argued that though fardbeyan is of the deceased, but the said fardbeyan has not been brought on record through proper evidence. Sri Bhavesh Kumar, learned counsel for the appellant has also argued that though fardbeyan is of the deceased, but the said fardbeyan has not been brought on record through proper evidence. He submits that the person, who recorded fardbeyan, without any explanation has not come forward to state that he had recorded the fardbeyan of deceased and this fact has not been established as to whether the deceased, at the time of recording fardbeyan, was in the state of mind to make any such statement or not. In sum and substance, it has been argued that the fardbeyan has not been brought on record through proper evidence. On aforesaid grounds, it has been argued that either the appellant may be acquitted by way of extending benefit of doubt or it was not a case for conviction under Sections 302/34 of the Indian Penal Code. 8. Sri Ajay Mishra, learned Addl. Public Prosecutor has opposed the appeal and by way of referring to evidence, particularly evidence of P.W.3 Meena Devi, sister of the deceased, has argued that evidence of those witnesses categorically suggests that the appellant was one of the participant in the occurrence, in which, son of the informant was done to death by fire-arm injury and the gun shot was given by none else, but the son of the appellant. 9. Besides hearing learned counsel for the parties, we have minutely examined entire evidence on record and after going through the same, prima facie, we are satisfied that the prosecution has not come out with clean hands, rather the prosecution tried to suppress the fact that in the occurrence, free fight had taken place in between both the parties. Before proceeding, it would be necessary to cursorily refer to the evidences, which have been brought on record, during trial. 10. P.W.1 Manilal Singh, one of the brother of the deceased, was examined as P.W.1, who had claimed to be eyewitness. During his evidence, he had proved his signature on fardbeyan, which was marked as Ext.1. He has also proved signature of the deceased on the fardbeyan and same was marked as Ext. 1/1. In his evidence, he stated that on the date of occurrence i.e. 15-11-1996 at 11.00 hrs. in the morning, he was near his door. The appellant, opposite of his door, was putting bamboo on the land to prevent the passage. He has also proved signature of the deceased on the fardbeyan and same was marked as Ext. 1/1. In his evidence, he stated that on the date of occurrence i.e. 15-11-1996 at 11.00 hrs. in the morning, he was near his door. The appellant, opposite of his door, was putting bamboo on the land to prevent the passage. There Shiv Lakhan Singh and Diwan Master were also present. His mother P.W.4 and brothers tried to prevent the accused persons, thereafter, accused persons started abusive language. Thereafter, P.W.1 filled up the hole on the earth, which was meant for putting bamboo. Subsequently, Diwan Master exhorted to kill him, then Shiv Lakhan Singh fired from his pistol, which hit on the back of Sona Lal Singh (deceased) and he fell down. Thereafter, father of Shiv Lakhan Singh i.e. Shiv Pujan Singh gave lathi blow, by which, head of Sona Lal Singh was broken. On alarm being raised, villagers assembled there and accused persons fled away. This witness further deposed that he carried the injured to Sadar Hospital, Ara from where, he was referred to Patna. He further deposed that statement of his brother was also recorded in Sadar Hospital in his presence and he also put his signature as a witness to the fardbeyan. He proved his signature as well as signature of Sona Lal Singh (deceased) on the fardbeyan, which were marked as Ext. 1 and 1/1 respectively. He also identified the appellant in dock. Ofcourse in examination-in-chief, P.W.1 had not at all whispered as to whether there was free fight in between the parties, in paragraph 4 of his cross-examination, he accepts that this appellant had also filed a case and he was in hospital. In paragraph - 10 of his cross-examination, he accepts that land dispute was going on in between the parties. 11. P.W.3 Meena Devi was the sister of the deceased and she had also claimed to be eye-witness to the occurrence. She too has deposed like P.W.1. However, in paragraph 13 of her cross-examination, she stated that the occurrence had taken place in a spur of moment. This witness too has suppressed the fact that the appellant side or appellant had received injury in the occurrence. 12. She too has deposed like P.W.1. However, in paragraph 13 of her cross-examination, she stated that the occurrence had taken place in a spur of moment. This witness too has suppressed the fact that the appellant side or appellant had received injury in the occurrence. 12. P.W.2 Rameshwar Singh, father of the deceased, had claimed that in the occurrence, he was also assaulted, however; in paragraph - 7 of his cross-examination, he stated that Shiv Pujan Singh (appellant) had filed a counter case. 13. P.W.4 Mantura Devi, mother of deceased too has claimed to be eye-witness, but this witness has also suppressed the fact that the appellant side had also received injury in the said occurrence. Meaning thereby that this witness has also suppressed the fact regarding free-fight in between the parties. However, this witness i.e. Mantura Devi, mother of the deceased accepted that land dispute relating to said land was already going on. P.W.4 in paragraph 2 of her evidence has accepted that on the land, over which, occurrence had taken place, both parties were having equal share. 14. P.W.6 Dr. Arvind Kumar Singh on 16-11-1996 was posted as Tutor in the P.M.C.H. and on the same date, he conducted post-mortem on the dead body of deceased Sona Lal Singh and noticed following facts:- “(i) One stitch wound 1½” long over Right parietal region of head longitudinally placed on radius margin was lacerated. (ii) One circular opening ¼” diameter, margin lacerated, blackened (wound of entry), Tattoing 4” x 3” area around wound. Situation of entry wound – ½” upto midline in back and 6” above sacrum. On dissection - Abdominal cavity full of blood and cloths with foul smelling, mix with pees. The projectile of injury no. 2 after entering the posterior abdominal hell pierces through the left kidney and one place in area and a metallic object like bullet taken out from abdominal cavity close to spleen. All the viscera in oral pale, Heart - empty, stomach contains green fluid. Opinion:- (i) Time elapsed since death – within twelve hours. (ii) Cause of death – injury no. 2, left kidney and cut. (iii) Nature of weapon – injury no. 1 was caused by hard blunt substance and rest due to fire-arm injury be rifle weapon.” He also proved the post-mortem examination report, which was marked as Ext. 3. 15. Opinion:- (i) Time elapsed since death – within twelve hours. (ii) Cause of death – injury no. 2, left kidney and cut. (iii) Nature of weapon – injury no. 1 was caused by hard blunt substance and rest due to fire-arm injury be rifle weapon.” He also proved the post-mortem examination report, which was marked as Ext. 3. 15. Surprisingly, all those witnesses, who were shown as witness to the occurrence in the F.I.R. and their names were incorporated in the F.I.R., had not supported the prosecution case and as such, they were declared hostile. The witnesses, who were cited in the F.I.R. as eye-witness to the occurrence, were P.W.8 Gorakh Thakur, P.W.10 Sudama Singh and P.W.11 Ram Kumar Singh. However, none of the witnesses have supported the prosecution case and they were declared hostile. Meaning thereby that there is suspicion regarding the correctness of the said fardbeyan of the deceased. Besides three witnesses i.e. P.W.8, P.W.10 and P.W.11, P.W.7 Thik Lal Singh and P.W.9 Bhawani Singh too have not supported the prosecution case and they were declared hostile. 16. Sri Chandrika Singh, the investigating officer was examined as P.W.5. He proved his signature on fardbeyan as well as formal F.I.R., which were marked as Ext. 1/2 and 1/3 respectively. He also proved signature of Sub Inspector of Police M.P. Yadav, as Ext. 2, who had recorded fardbeyan of the deceased. 17. After recording of the prosecution evidence, on 20-09-2004, statement of accused under Section 313 of the Cr.P.C. was recorded. On going through the same, it appears that only formality was completed by the prosecution, otherwise apparently such provision was violated by the prosecution. Accordingly, it would be necessary to reproduce the statement of the accused/appellant, which was recorded under Section 313 of the Cr.P.C., which is as follows:- ^^iz’u& vkids fo:) xokgksa dk C;ku gS fd vki fnukad 15-11-1996 dks lksus yky dks ykBh ls ekj dj rFkk f’koy[ku flag fiLrkSy ls ekjdj t[eh dj fn;s ftlls lksus yky dh e`R;q gks xbZ A blds laca/k esa D;k dguk gS \ mRrj & th ugha A iz’u & lQkbZ esa D;k dguk gS \ mRrj & xyr vkjksi gS A** 18. In the statement of the accused recorded under Section 313 of the Cr.P.C., the appellant has categorically said that he was falsely implicated. In the statement of the accused recorded under Section 313 of the Cr.P.C., the appellant has categorically said that he was falsely implicated. Thereafter, from defence side, one Raj Narayan Choudhary was examined as D.W.1, who had simply proved sanaha entry i.e. Station Diary Entry No. 322 dated 16-11-1996, which was recorded on the basis of statement of the appellant. 19. In the evidence of investigating officer/P.W.5, in paragraph 2, he has explained regarding inspection of place of occurrence, however; in his evidence, this fact has not come as to whether at the place of occurrence, there was any blood mark or not. During investigation, no seizure list was prepared. In paragraph 6 of his evidence, he stated that during investigation he got an information that Shiv Pujan Singh (appellant) was under treatment in Ara Sadar Hospital and thereafter, he deputed Havildar Krishna Singh to keep vigilance on him and after his discharge, he may be arrested and thereafter, on 22-11-1996, after arresting the appellant, the Havildar Krishna Singh had brought him to the police station. 20. On examination of the evidence of investigating officer, two things are clear that at the place of occurrence, no blood mark was found by the investigating officer and also in relation to the same occurrence, the appellant had received injury, for which, he was under treatment in Sadar Hospital. He was subsequently discharged on 22-11-96 and only thereafter, he was arrested and brought to the police station. 21. On examination of the entire evidence, it is clear that the prosecution had not at all whispered as to whether the appellant had received injury, whereas in cross-examination, some fact has come suggesting that in the occurrence both sides had received injury. Moreover, during evidence, this fact has been established that entire occurrence had taken place in a spur of moment. This fact has been accepted by P.W.3 in paragraph 3 of her cross-examination. There is no evidence to show as to whether this appellant had given any repeated blow of lathi or not rather it has come that this appellant was also given lathi blow by the deceased. 22. Considering entire evidence on record, we are of the opinion that the prosecution has not come out with clean hands and as such, the act of the prosecution creates serious doubt. 22. Considering entire evidence on record, we are of the opinion that the prosecution has not come out with clean hands and as such, the act of the prosecution creates serious doubt. Accordingly, by way of extending benefit of doubt, the judgment of conviction and sentence can be set aside. Moreover, the prosecution has not been able to establish its case beyond all reasonable doubt. 23. Accordingly, by way of extending benefit of doubt, the judgment of conviction dated 06-02-2006 and order of sentence dated 13-02-2006 passed in Sessions Trial No. 81 of 1997 (arising out of Charpokhari P.S. Case No. 115 of 1996) by Sri Basant Kumar Dikshit, learned Additional Sessions Judge, F.T.C.- IV, Bhojpur, Ara is hereby set aside and appeal is allowed. Since the appellant is already on bail, he is discharged from the liability of his bail-bond.