JUDGMENT : PRAKASH CHANDRA JAISWAL, J. 1. As both the criminal appeals have cropped up from the same judgment, hence aforesaid two appeals are being heard together and disposed of by this common judgment. 2. Heard learned counsel for the appellants and learned APP for the State on these criminal appeals. 3. These criminal appeals have been preferred against the Judgment and Order of conviction dated 20.06.2013 and Order of sentence dated 27.06.2013 passed by Sessions Judge, Jehanabad in Sessions Trial No. 100 of 2012 arising out of Makdumpur P.S. Case No. 388 of 2010 whereby the learned trial court convicted the accused Niraj Sharma and Mantu Sharma @ Mukesh Sharma for the offence punishable under Section 302/34 of the Indian Penal Code and sentenced them to undergo imprisonment for life under said Section. 4. Factual matrix of the case is that Makdumpur P.S. Case No. 388 of 2010 was instituted under Section 302/34 of the Indian Penal Code and Section 27 of the Arms Act against the accused persons namely Chitranjan Sharma, Niraj Sharma, Braj Kishore @ Kishore Sharma, Mantu Sharma @ Mukesh Sharma and Gopal Sharma on the basis of the fardbeyan of Jhulan Sharma @ Sarvind Kumar, S/o Ramesh Sharma recorded by S.I. Shashi Shekhar Chauhan, S.H.O. P.S. Makdumpur on 17.12.2010 at 5 PM in the village Naugarh near Morhar River side with the allegation in succinct that younger brother of the informant namely Nagendra Sharma along with Dhirendra Kumar @ Karu Singh had gone to Jehanabad by his motorcycle on the day of occurrence. He was watering his potato field located on Western bank of Morhar river at 03:15 PM on the said date. In the meantime, his brother Nagendra Sharma along with Dhirendra Kumar @ Karu was passing through the bank of the Morhar river to proceed to his village. His brother was driving the motorcycle while Karu Singh was the pillion rider. Abruptly from the orchard of Yogendra Singh located on the eastern bank of the river, four accused persons namely Chitranjan Sharma, Niranjan Sharma, Braj Kishore @ Kishore Sharma and Mantu Sharma armed with fire arms emerged there. Seeing them, he gave call to his brother to escape. By that time, his brother had arrived at the eastern flank of the river near slope, but all the four accused persons encircled him. Seeing them, he gave call to his brother to escape. By that time, his brother had arrived at the eastern flank of the river near slope, but all the four accused persons encircled him. Meanwhile Gopal Sharma emerged there from the road located on the eastern flank of the river and gave order to eliminate his brother. Responding the same, all the accused persons resorted indiscriminate firing. However Karu Singh managed to escape unhurt, while his brother sustaining injury in the firing fell down from the motorcycle. Then the accused persons gunned him down by resorting firing. He rushed to his brother and found him dead in the pool of blood near his motorcycle. One slipper, shawl, muffler, etc. were recovered from the orchard of Jitendra Sharma. It is also alleged that Mantu Sharma had got the tender of Sakurabad, Bazar Samittee to which the deceased intended to take which resulted into the altercation between them and Mantu Sharma had extended threatening to him to teach him lesson. 5. Aforesaid case was investigated by the police and on conclusion of the investigation, I.O. submitted charge-sheet against the accused Niraj Sharma and Mantu Sharma @ Mukesh Sharma showing the accused Gopal Sharma as not sent up and keeping the investigation pending against rest accused persons. 6. On receiving the charge-sheet and the case diary and perusing the same, the learned Magistrate took cognizance of the offence and committed the case to the court of sessions and after commitment the case came in the seisin of Sessions Judge, Jehanabad for trial. 7. Charge against the accused Niraj Sharma and Mantu Sharma was framed under Section 302/34 of the Indian Penal Code. Charge was read over and explained to them by the Court to which they pleaded not guilty and claimed to be tried. 8. To substantiate its case, in ocular evidence, the prosecution has examined altogether six prosecution witnesses namely, Dhirendra Kumar @ Karu as PW-1, Arun Sharma as PW-2, Informant Sarvendra Kumar Sharma as PW-3, 2nd I.O. Rajnish Prakash Pandey who has submitted charge-sheet in the case as PW-4, 1st I.O. of the case namely Shashi Shekhar Chauhan as PW-5 and Dr. Ashok Kumar who has conducted the autopsy of the cadaver of the deceased as PW-6. Prosecution has also filed and proved some documents by way of documentary evidence in the case. 9. Ashok Kumar who has conducted the autopsy of the cadaver of the deceased as PW-6. Prosecution has also filed and proved some documents by way of documentary evidence in the case. 9. Statement of the accused persons was recorded under Section 313 of the Code of Criminal procedure. The case of the defence is complete denial of the occurrence claiming to have been falsely implicated in the case on elimination of the deceased by the rival gang as he happens to be associate of the Area Commander of Ranveer Sena. Accused persons also examined four witnesses namely Dinesh Singh as DW-1, Jai Nandan Sharma as DW-2, Mithilesh Sharma as DW-3 and Ram Uday Sharma as DW-4 in buttress of their case. 10. After hearing the parties and perusing the record, the learned trial court passed the aforesaid Judgment and Order of conviction and sentence as detailed in the earlier paragraph. 11. Being aggrieved and dissatisfied with the aforesaid Judgment and Order of conviction and sentence, convict Niraj Sharma has preferred Criminal Appeal No. 726 of 2013 and convict Mantu Sharma @ Mukesh Sharma has preferred Criminal No. 751 of 2013. 12. The point for consideration in this case is, as to whether the prosecution has been able to bring home the charge levelled against the appellants beyond all reasonable doubts or not. 13. It is submitted by learned counsel for the appellants that informant has himself disowned giving fardbeyan by stating in his examination-in-chief that the police had not grilled him as he was weeping at the time of the arrival of the police. He had only given name of the five accused persons to the police. It is further submitted that as per the account of PW-2 Arun Sharma, he has given statement to the police and on the basis of his statement, fardbeyan was recorded and he put his signature thereon, but aforesaid fardbeyan of PW-2 has not been brought on record rather suppressed by the prosecution which creates serious doubt about the prosecution case. It is also submitted that none of the independent witnesses including Rockey who was playing cricket in the vicinity of the place of the occurrence has been examined by the prosecution and no convincing and plausible reason has been assigned by the prosecution for their non-examination. Hence, adverse inference shall be drawn against the prosecution. It is also submitted that none of the independent witnesses including Rockey who was playing cricket in the vicinity of the place of the occurrence has been examined by the prosecution and no convincing and plausible reason has been assigned by the prosecution for their non-examination. Hence, adverse inference shall be drawn against the prosecution. It is also submitted that PW-2 Arun Sharma and PW-3 informant Sarvendra Kumar Sharma do not happen to be eye witness of the occurrence as per the account of PW-2 Arun Sharma when he arrived at the place of occurrence he witnessed the accused persons escaping from the place of occurrence and he had not witnessed the occurrence of assault upon the deceased at the hand of the appellants while as per the account of PW-2 and PW-3, they were watering their potato field by the motor pump at the time of occurrence but I.O. who had arrived at the place of occurrence immediately after the occurrence and inspected the place of occurrence had not reported about finding their field irrigated and any motor pump in their field in the case diary. It is also submitted that the place of occurrence is situated on the eastern bank of the Morhar river while the field of PW-2 and PW-3 are located on the western bank of the river at a distance of 80 meters and it is not possible to witness the occurrence and identify the assailant from such a long distance. Thus, the prosecution has utterly and miserably failed to substantiate the prosecution case and bring home the charge levelled against the appellants beyond all reasonable doubts by adducing consistent, trustworthy, reliable and worth credence evidence. Hence, aforesaid judgment and order of conviction and sentence passed against the appellants is liable to be set aside and the appellants are entitled to be acquitted. 14. On the other hand, learned APP for the State advocating the correctness and validity of the impugned Judgment and Order of conviction and sentence submitted that the informant has supported the prosecution case in toto and PW-2 who happens to be eye witness of the occurrence has also corroborated the same. 14. On the other hand, learned APP for the State advocating the correctness and validity of the impugned Judgment and Order of conviction and sentence submitted that the informant has supported the prosecution case in toto and PW-2 who happens to be eye witness of the occurrence has also corroborated the same. I.O. has recovered blood on the place of occurrence as well as on the motorcycle and has also recovered and seized empty cartridge at the place of occurrence and learned trial court correctly appreciating the facts and evidence available on record has rightly passed the impugned Judgment and Order of conviction and sentence which is liable to be upheld and these criminal appeals are shorn of merit and are liable to be dismissed. 15. From perusal of the record, it appears that to substantiate its case, prosecution has examined three material witnesses in the case. Out of them, PW-1 Dhirendra Kumar @ Karu who happens to be companion of the deceased and who was present with the deceased at the time of occurrence has turned hostile. PW-2 Arun Sharma who happens to be cousin brother of the deceased albeit has made an abortive bid to support the prosecution case by stating in his examination-in-chief in consonance to the prosecution case that at the time of occurrence when his brother Nagendra along with Karu Sharma was proceeding to the village from Sakurabad market on motorcycle and was climbing eastern flank of the river, in the meantime Chitranjan Sharma, Niraj Sharma, Gopal Sharma, Mantu Sharma and Braj Kishore Sharma emerging from the bush resorted firing upon them making hulla to kill them. Resultantly Nagendra Sharma died on the spot. Then all the accused persons left the scene. But PW-2 does not happen to be eye witness of the occurrence as in Para-22 and 24 of his cross-examination he has stated that responding hulla and firing sound when he witnessed towards place of occurrence accused persons, who were five in number, were escaping from there swiftly. He was not the first person to arrive near the dead body of Nagendra Sharma rather informant Sarvendra Kumar Sharma had arrived there five minutes earlier to him. He arrived at the place of occurrence from his potato field slowly. He was not the first person to arrive near the dead body of Nagendra Sharma rather informant Sarvendra Kumar Sharma had arrived there five minutes earlier to him. He arrived at the place of occurrence from his potato field slowly. While the informant PW-3 has stated in Para-23 of his cross-examination that he was the first person to arrive at the place of occurrence and others had arrived later to him. In Para-22 of his cross-examination, he has stated that he had arrived at the place of occurrence after departure of the accused persons from there. Aforesaid testimony of PW-2 and PW-3 conjointly indicates that when the informant had arrived at the place of occurrence, by that time accused persons had already left the scene. PW-2 had arrived there five minutes later to the arrival of the informant at the place of occurrence. Then there is no question of witnessing the accused persons escaping from the place of occurrence by PW-2. In the aforesaid facts and circumstances, we find that PW-2 has neither witnessed the occurrence nor the accused persons escaping from the place of occurrence rather he had arrived at the place of occurrence after culmination of the occurrence and escaping of the accused persons from there. 16. Informant PW-3 though has also made an abortive bid to support the prosecution case by stating in his examination-in-chief in consonance to his fardbeyan claiming to have witnessed the occurrence from his potato field at the time of watering the field by the electric motor pump alike PW-2. His field is measuring 6-7 Katha and half of his field was irrigated by that time. But from perusal of the statement of the I.O. (PW5), it appears that I.O. has not mentioned in the case diary about irrigation of the potato field of PW-2 and PW-3 and finding of any motor pump in their field meaning thereby that I.O. has not found the field of the aforesaid two persons irrigated by the motor pump at the time of occurrence. Hence, aforesaid aspect of the case creates serious doubt about the credibility and sanctity of the testimony of the said witnesses and rules out presence of the aforesaid witnesses there and witnessing of the occurrence by them from there. 17. Hence, aforesaid aspect of the case creates serious doubt about the credibility and sanctity of the testimony of the said witnesses and rules out presence of the aforesaid witnesses there and witnessing of the occurrence by them from there. 17. As per the account of PW-2 as given by him in Para-7 of his examination-in-chief on arrival of the police at the place of occurrence he gave statement to the S.I. and after noting down his statement S.I. read it over to him, then he put his signature thereon. Aforesaid statement of PW-2 indicates that fardbeyan of PW-2 was recorded by the police, but the aforesaid fardbeyan has not been brought on record rather suppressed by the prosecution which creates serious doubt about the prosecution case. 18. Informant (PW-3) has stated in Para-7 of his examination-in-chief that police arrived at the place of occurrence and inspected the dead body but did not grill him as he was weeping at that time. He had simply divulged the name of five accused persons to the police. But from perusal of the fardbeyan of the informant, it appears that aforesaid fardbeyan contains graphic statement of the informant which as per his aforesaid account has not been given by him. Hence aforesaid aspect of the case creates serious doubt about the sanctity of the said fardbeyan and the prosecution case. 19. As per the account of PW-2 as given by him in Para-27 of his cross-examination, police had arrived at the place of occurrence at 6 PM, but from perusal of the fardbeyan of the informant, it appears that fardbeyan of the informant was recorded on 17.12.2010 at 5 PM i.e. preceding to the arrival of the police at the place of occurrence. Aforesaid aspect of the case also creates serious doubt about the sanctity of the fardbeyan and the prosecution case. 20. As per the account of the I.O. (PW-5) as given by him in his examination-in-chief, he recorded the statement of Rockey Kumar who was playing cricket in the vicinity of the place of occurrence and also of Ram Chandra Singh, Krishna Kumar, Anil Kumar, Upendra Kumar and Shambhu Kumar regarding the occurrence but the aforesaid witnesses have not been examined by the prosecution and no plausible and convincing reasons has been assigned by the prosecution for their non-examination. Hence adverse inference is drawn against the prosecution. 21. Hence adverse inference is drawn against the prosecution. 21. As per the account of PW-2 as given by him in Para-12 and 13 of his cross-examination Nagendra Sharma had gone to jail 2-3 times as 3-4 criminal cases including murder were pending against him. He was also accused in murder case of 5-6 persons in the village Naugarh. Aforesaid statement of PW-2 indicates that it is admitted case of the prosecution that the deceased Nagendra Sharma was having criminal antecedent and was involved in 3-4 criminal cases including murder. Appellants in their statement recorded under Section 313 of the Code of Criminal Procedure have also taken the case that the deceased Nagendra Sharma was of criminal antecedent person who has been eliminated by the extremists. 22. 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 and bring home the charge levelled against the appellants beyond all reasonable doubts by adducing consistent, convincing, reliable and worth credence evidence. Hence, the impugned judgment and order of conviction and sentence passed by the learned trial court against the appellants is set aside and the appellants are acquitted of the charge levelled against them. As both the appellants are in custody, they are directed to be released forthwith, if not wanted in any other case. 23. Accordingly, these criminal appeals are allowed.