JUDGMENT : RAKESH KUMAR, J. 1. The present appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.') has been preferred against the judgment of conviction and sentence passed in Sessions Trial No. 856 of 1998/Tr. No. 12 of 2012 (arising out of Dhoraiya P.S. Case No. 67 of 1997) by Sri Prem Ranjan Mishra, learned Addl. District and Sessions Judge, F.T.C.-I, Banka (hereinafter referred to as 'Trial Judge'). 2. The sole appellant by judgment dated 03-04-2012 has been convicted for commission of offence under Sections 302/149 & 201 of the Indian Penal Code, 1860 (hereinafter referred to as 'I.P.C.') and Section 27 of the Arms Act, 1959 (for short 'Arms Act'). By order dated 10-04-2012, the appellant under Section 302/149 of the I.P.C. has been sentenced to undergo rigorous imprisonment for life and under Section 201 of the I.P.C., he has been directed to undergo rigorous imprisonment for three years. By the said order i.e. order dated 10-04-2012, under Section 27 of the Arms Act, he has been sentenced to undergo imprisonment for two years. All the sentences have been directed to run concurrently. 3. Short fact of the case is that on 20-09-1997, the Sub-Inspector of Police-cum-Officer in-charge of Dhoraiya Police Station namely F. Ahmad recorded fardbeyan of Jeera Devi (P.W.1) wife of Sattan Mandal (deceased). The said fardbeyan was recorded at 3:00 PM in the village Pashana. The informant gave her fardbeyan, in presence of her devar (younger brother of her husband) Shyam Sundar Mandal (not examined) and Udai Bhanu Singh (P.W.5). In her fardbeyan, she stated that her family was having old animosity with the co-villagers Raghubansh Prasad Jha & Pappu Jha regarding a murder case, which was pending in the court. She stated that Uday Kant Jha and Ashok Jha were murdered and in their murder, her son Ramesh Mandal and Ranjan Mandal were in Banka jail. Her devar (younger brother of her husband) Shyam Mandal was released on bail on 03-09-1997. The informant's husband Sattan Mandal was only in the house. She stated that her house was demolished at the time of execution of process under Section 83 of Cr.P.C. and her husband was engaged in constructing wall of the house. On 20-09-1997 in the morning, her husband Sattan Mandal was doing some work inside the house and at about 6:00 in the morning; 1. She stated that her house was demolished at the time of execution of process under Section 83 of Cr.P.C. and her husband was engaged in constructing wall of the house. On 20-09-1997 in the morning, her husband Sattan Mandal was doing some work inside the house and at about 6:00 in the morning; 1. Pappu Jha (appellant) carrying musket in his hand, 2. Binod Jha carrying three not in his hand, 3. Lambu Ojha carrying three not in his hand, 4. Manoj Ojha carrying three not in his hand, 5. Raghuvansh Ojha carrying musket (All 1 to 4 resident of village Pashana, P.S. Dhoriaya, District Banka) 6. Kinkar Thakur, resident of village Saidapur, P.S. Godda, District Godda, who was maternal uncle of Raghuvansh Ojha, was carrying musket in his hand, and 7. Lakhi Jha, resident of village Baja Bharko, P.S. Amarpur, District Banka was carrying musket in his hand came there. They all intruded in the under-constructed house of the informant. Thereafter, Pappu (appellant) from his musket gave one shot of firing on her husband and Kinkar Thakur fired one shot of firing from his musket on her husband, which hit right eye of her husband. Second firing hit the mouth of the husband of the informant, which came out from the temporal region. Third firing, which was shot by Lakhi Ojha, hit the wall. After getting fire-arm injury, the informant's husband fell down and died. The informant started raising gYyk (hulla) and came out from her house and moved to eastern side. In the meanwhile, the aforesaid accused persons, after killing her husband, started dragging the dead body and moved towards northern side and thereafter, they threw the dead body in the orchard of Babua Ojha of the same village i.e. village Pashana. It was done with a view to conceal the dead body. Thereafter, all the accused persons crossing Gerua river fled away towards eastern Godda district. She claimed that the entire occurrence was seen by Chhatish Bhandari (not examined), Poshan Yadav (P.W.6), Bharosi Yadav (P.W.4) and others. They had also seen the entire occurrence as well as occurrence relating to dragging of the dead body. Her fardbeyan was read over to her and after finding it correct, she put her Right Thumb Impression. As a witness on the fardbeyan, Shyam Sundar Mandal (not examined) and Uday Bhanu Pd. Singh (P.W.5) put their signature. 4. They had also seen the entire occurrence as well as occurrence relating to dragging of the dead body. Her fardbeyan was read over to her and after finding it correct, she put her Right Thumb Impression. As a witness on the fardbeyan, Shyam Sundar Mandal (not examined) and Uday Bhanu Pd. Singh (P.W.5) put their signature. 4. On the basis of said fardbeyan, on 20-09-1997 at 22.15 hrs. (10:15 PM), a formal F.I.R., vide Dhoraiya P.S. Case No. 67 of 1997 was registered against 1. Pappu Jha (appellant), 2. Binod Jha, 3. Lambu Ojha, 4. Manoj Ojha, 5. Raghuvansh Ojha, 6. Kinkar Thakur, and 7. Lakhi Jha. After registering the case, the police investigated the case and after finding the case true, on 31-01-1998 charge-sheet was submitted against 1. Pappu Jha (appellant), 2. Lambu Ojha and showing absconder F.I.R. named accused 1. Manoj Jha, 2. Raghuvansh Jha, 3. Kinkar Thakur & 4. Lakhi Jha were also forwarded, however; only one accused namely Binod Jha was not sent-up for trial. After submission of charge-sheet, the learned Chief Judicial Magistrate, Banka on 10-02-1998 took cognizance of the offence and thereafter, the case was committed to the court of sessions on 04-12-1998 and as such, it was numbered as Sessions Trial No. 856 of 1998. After commitment, on 06-04-2000 charge was jointly framed against 1. Pappu Jha (appellant), 2. Lambu Ojha, and 3. Raghuvansh Jha under Sections 302/149 & 201 of the Indian Penal Code, however; separate charge under Section 27 of the Arms Act was framed against the appellant. 5. On going through the record, it is evident that after completion of entire prosecution evidence, other two accused persons jumped bail and as such, on 23-06-2011 their cases were separated and trial proceeded only against the appellant. During the trial, to establish its case on behalf of the prosecution, altogether 9 witnesses were examined. Out of 9 witnesses, P.W.1 (Jeera Devi) is the only witness, who has come forward with a case of witnessing entire occurrence, whereas P.W.2 Satish Bhandari, P.W.3 Nageshwar Bhandari, P.W.4 Bharosi Yadav, P.W.6 Poshan Yadav and P.W.7 Koiri Yadav @ Subhash Yadav were declared hostile. Out of 9 witnesses, P.W.1 (Jeera Devi) is the only witness, who has come forward with a case of witnessing entire occurrence, whereas P.W.2 Satish Bhandari, P.W.3 Nageshwar Bhandari, P.W.4 Bharosi Yadav, P.W.6 Poshan Yadav and P.W.7 Koiri Yadav @ Subhash Yadav were declared hostile. P.W.5 Udai Bhanu Singh, though his name was referred as eye-witness to the occurrence relating to murder as well as dragging of the dead body, he only stated regarding putting his signature on the inquest report and signature on inquest report was marked as Ext.1. This witness, though has not supported the prosecution case, was not declared hostile. P.W.8 Dr. Vishwanath Prasad on 21-09-1997 was posted as Medical Officer, Sadar Hospital, Banka and he conducted post-mortem examination on the dead body of the deceased. P.W.9 Dev Kishore Prasad on 20-09-1997 was posted as Sub-Inspector of Police in Dhoraiya Police Station and he had investigated the case and after investigation, he submitted charge-sheet. 6. After completion of the prosecution evidence, on 15-10-2011 statement of accused under Section 313 of the Cr.P.C. was recorded, in which, he claimed to be innocent. On behalf of the defence, three witnesses were examined, namely; Vokil Das (D.W.1), Madho Paswan (D.W.2) and Fatuli Roy (D.W.3). Those witnesses at the relevant time were deputed for security of appellant's family, since prior to the present occurrence, three members from the appellant side were done to death and in respect of those murder, two sons of informant and deceased were accused and subsequently, they were convicted and sentenced. 7. Sri Ajay Thakur, learned counsel for the appellant, after placing entire evidence, has argued that the prosecution has not been able to establish its case beyond all reasonable doubt. He submits that prosecution has suppressed the first version of the case and subsequently in a well-planned manner, the fardbeyan was got recorded, in which, besides appellant, other six persons were arrayed as accused. Sri Thakur has argued that it is case of the informant (P.W.1) that after the occurrence, she sent chowkidar to police station for informing the police and thereafter, the chowkidar explained entire fact about the occurrence to the officer in-charge, only thereafter, the police reached to the place of occurrence and started investigation. Sri Thakur has argued that it is case of the informant (P.W.1) that after the occurrence, she sent chowkidar to police station for informing the police and thereafter, the chowkidar explained entire fact about the occurrence to the officer in-charge, only thereafter, the police reached to the place of occurrence and started investigation. Learned counsel for the appellant further submits that as per informant, though the occurrence had taken place in the morning at 6.00, the fardbeyan in the present case was shown to be recorded at 3:00 PM without any explanation of delay, whereas, police station was only 3 km away from the place of occurrence. To substantiate his submission regarding suppression of first version, Sri Thakur has also argued that despite the fact that formal F.I.R. was shown to be recorded on 20-09-1997, the said F.I.R. was received in the court on 22-09-1997 without any explanation of delay of receipt of F.I.R. in the court. It has also been argued that evidence of P.W.1 appears to be doubtful, considering the fact that in the fardbeyan as well as in her evidence, P.W.1 has stated that besides her, the entire occurrence was witnessed by other witnesses including P.W.4 and P.W.5. In the case, P.W.5, who was shown in the fardbeyan as one of the witness to the occurrence, has only come forward to claim his signature on the inquest report. P.W.5 (Udai Bhanu Singh) has not corroborated the prosecution case, but to the reasons best known to the prosecution, he was not declared hostile nor his attention was drawn to his previous statement. 8. Sri Thakur has further argued that P.W.1 has stated regarding giving two shot of firing, which hit the deceased. The same version was not corroborated by the medical evidence. In the post-mortem report, only one shot of firing was found. Ofcourse two injuries were found, but both injuries were connecting to each other i.e. injury no. 1 was entry wound and injury no. 2 was exit wound. He submits that post-mortem report creates serious doubt on the claim of P.W.1 as eye-witness. 9. According to Sri Thakur, the place of occurrence also makes it clear that it was not a residential house, since the investigating officer at the time of inspection of the place of occurrence had noticed that in the house there were only walls without any roof and it was under-construction. 9. According to Sri Thakur, the place of occurrence also makes it clear that it was not a residential house, since the investigating officer at the time of inspection of the place of occurrence had noticed that in the house there were only walls without any roof and it was under-construction. He has also placed the evidence of defence witnesses to show that those witnesses were deputed for the security of the family of the appellant and they have stated that after the occurrence, they went to the place of occurrence, they met the informant (P.W.1), but she had not disclosed about identification of either of the accused persons. On aforesaid grounds, it has been argued that prosecution has miserably failed to establish its case and as such, it was a fit case for acquittal, but the learned Trial Judge, without any cogent reason, has passed the judgment of conviction and sentence, which requires interference. 10. Sri Ajay Mishra, learned Addl. Public Prosecutor has opposed the appeal and he has argued that evidence of P.W.1 was itself sufficient for passing judgment of conviction and sentence. 11. Besides hearing learned counsel for the parties, we have also minutely examined entire evidence i.e. both oral & documentary and after going through the same, we are of the considered opinion that prosecution has not been able to establish its case beyond all reasonable doubt and judgment impugned requires interference, however; before proceeding, it would be necessary to cursorily refer to the evidence, particularly the evidence of P.W.1, who is the informant of the case. 12. The informant in her evidence has reiterated the same thing, which she has stated in the fardbeyan, however in cross-examination in paragraph 4, she has admitted that Pappu (appellant), Pradeep and Ashok were sons of Uday Jha, and Uday, Pradeep and Ashok were earlier murdered and in respect of morder of these three persons, her sons Ranjan and Ramesh were accused, in which they were convicted and sentenced to undergo imprisonment for life. In paragraph-5 of her cross-examination, she stated that prior to the occurrence, police and chowkidar were deputed in the house of the accused/appellant, which was done after the murder of their family members. She stated that chowkidar Nathuni was on duty on the said date. In paragraph-5 of her cross-examination, she stated that prior to the occurrence, police and chowkidar were deputed in the house of the accused/appellant, which was done after the murder of their family members. She stated that chowkidar Nathuni was on duty on the said date. She had given entire information regarding the occurrence to chowkidar and thereafter, chowkidar had gone to the police station and thereafter, chowkidar had explained all the fact to the police. Again in paragraph-6 of her cross-examination, she stated that police had come to her door alongwith nkjksxkth (darogaji). There was talk with her and Fkkuk ÁHkkjh (thana prabhari) told her that chowkidar had already lodged the case and he had come for enquiry of the case. Even in other paragraphs of her cross-examination, there were number of serious contradictions, but fact remains that admission by this witness that the police officer, who had come to the door of the informant, after the occurrence, had indicated that case was already lodged and he had come for inquiry. Meaning thereby that the submission of Sri Thakur, learned counsel for the appellant that first version was suppressed by prosecution has got some substance. 13. On examination of evidence of P.W.1, it would be difficult to place much reliance and she appears to be not credible witness. Her evidence also comes in the cloud of doubt on examination of evidence of P.W.5/Udai Bhanu Singh. 14. The evidence of P.W.5 Udai Bhanu Singh creates doubt on the evidence of P.W.1. This witness was cited in the fardbeyan as eye-witness to the occurrence, which had occurred at the place of occurrence as well as occurrence relating to dragging of the dead body, but while he came in dock, he only stated that he had only put his signature on the inquest report, which was marked as Ext.1. This witness had not supported the prosecution case, but to the reasons best known to the prosecution, he was not declared hostile, however his attention was drawn to his previous statement. Besides this, other witnesses had simply turned hostile. 15. P.W.8 Dr. Vishwanath Prasad on 21-09-1997 was posted as Medical Officer, Sadar Hospital, Banka and on the same date, he conducted post-mortem examination on the dead body of the deceased and he noticed following facts:- "1. Besides this, other witnesses had simply turned hostile. 15. P.W.8 Dr. Vishwanath Prasad on 21-09-1997 was posted as Medical Officer, Sadar Hospital, Banka and on the same date, he conducted post-mortem examination on the dead body of the deceased and he noticed following facts:- "1. One lacerated wound on the upper part of right-chick including right eye with inserted black margin size 1/2" (half inch) in diameter i.e. wound of entry. 2. Lacerated wound on the left part of occipital area of the scalp with fracture of occipital bone and laceration of brain matter with everted margin size 1" (one inch) in diameter i.e. wound of exit. Cause of death- Haemorrhage/Shock due to above injury caused by fire arm. Age of injury- 24 to 28 hours." This witness has proved the post-mortem report, which has been marked as Ext.2. 16. On examination of the evidence of P.W.8 as well as post-mortem report i.e. Ext.2, it is evident that only one fire-arm injury was found on the person of the deceased and as such, the evidence of P.W.1 (informant) may not be relied upon, since in her evidence she had made categorical statement that two shot of firing was made, which hit the deceased. 17. The investigating officer P.W.9 Dev Kishore Prasad at the time of inspection of the place of occurrence has found three fired cartridges and seizure list was prepared, ofcourse, no material exhibit was produced during the trial. 18. On examination of the evidence, it is evident that no explanation was given by the prosecution regarding much belated receipt of the F.I.R. in the court. The formal F.I.R. was drawn on 20-09-2018, however; the same was received in the court on 22-09-2018. This also supports the submission of the learned counsel for the appellant that first version of the case was suppressed by the prosecution. 19. On going through the entire evidence, we are of the considered opinion that there is no reason to approve the judgment of conviction and sentence, which requires interference, since the prosecution has not been able to establish its case beyond all reasonable doubt. 20. Hence, the judgment of conviction dated 03-04-2012 and order of sentence dated 10-04-2012 passed by Sri Prem Ranjan Mishra, learned Additional District and Sessions Judge, F.T.C. - I, Banka in Sessions Trial No. 856 of 1998/Tr. 20. Hence, the judgment of conviction dated 03-04-2012 and order of sentence dated 10-04-2012 passed by Sri Prem Ranjan Mishra, learned Additional District and Sessions Judge, F.T.C. - I, Banka in Sessions Trial No. 856 of 1998/Tr. No. 12 of 2012 (arising out of Dhoraiya P.S. Case No. 67 of 1997) is, hereby, set aside and appeal is allowed. 21. Since the appellant is in custody and judgment of conviction and sentence has been set aside, it is, hereby, directed to release him forthwith, if not wanted in any other case.