JUDGMENT : RAKESH KUMAR, J. 1. The sole appellant has preferred the present Appeal under Section 374(2) of the Code of Criminal Procedure, 1973 [hereinafter referred to as the "Cr.P.C."] against the judgment of conviction passed in Sessions Trial No. 893 of 2011 whereby the appellant was held guilty for commission of offence under Sections 302/34 of the Indian Penal Code, 1860 [hereinafter referred to as the "I.P.C."] and Section 27(1) of the Arms Act, 1959 (hereinafter referred to as the "Arms Act"). Appellant by judgment dated-24th June, 2013 has been held guilty and convicted under Section 302/34 of the I.P.C. and Section 27(1) of the Arms Act and by order dated: 27.06.2013 under Section 302/34 of the I.P.C. he has been sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 1,000/-. In default in payment of fine, he has been directed to further undergo simple imprisonment for one month. Under Section 27 (1) of the Arms Act, he has been sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 1,000/-. In default in payment of fine, he has been directed to undergo further one month simple imprisonment. Both the sentences were directed to run concurrently. The judgment of conviction and sentence was passed by Sri Binay Kumar Sinha, learned 3rd Additional Sessions Judge, Begusarai [hereinafter referred to as the "trial judge"] in Sessions Trial No. 893 of 2011 (arising out of Ballia P.S. Case No. 18 of 2011). 2. Short fact of the case is that on 05.02.2011 at 22.00 Hours (10.00 P.M.) Sub Inspector of Police-cum-S.H.O. of Ballia Police Station namely Md. Irshad Alam recorded fardbyan of Kabutri Devi-P.W. 2, W/o Hare Ram Yadav (deceased). The said fardbyan was recorded in Sadar Hospital, Begusarai. In the fardbyan informant in presence of her son-Pravin Yadav (P.W. 1) stated that in the same evening at about 7.30 P.M. her husband Hare Ram Yadav was smoking cigarette outside his house. The informant was inside in her courtyard ¼vkaxu½ and preparing fodder for cattle. In the meanwhile, she heard one sound of firing on her door. After hearing sound of firing she from the courtyard came out runningly and saw 2-3 accused persons who were carrying pistols in their hands and firing on her husband. The informant was inside in her courtyard ¼vkaxu½ and preparing fodder for cattle. In the meanwhile, she heard one sound of firing on her door. After hearing sound of firing she from the courtyard came out runningly and saw 2-3 accused persons who were carrying pistols in their hands and firing on her husband. The shot of firing hit on the left side of the head of her husband and by the said injury he fell down. The informant thereafter raised alarm. Thereafter her Bhaisur (elder brother of her husband) namely Ramjee Yadav (P.W. 3), son-Pravin (P.W. 1) and nephew-Navin (P.W. 6) arrived there. On the said alarm number of persons also assembled there where after the accused persons after firing fled towards Eastern side. The informant claimed to identify one of the accused persons namely: Raj Kishor Yadav @ Bhauki Yadav (appellant), resident of village-Aahoghat, Police Station-Sahabpur Kamal, District-Begusarai. The informant claimed to identify the appellant in the light of lantern which was burning outside the house. She could not identify other 2-3 young accused persons however she claimed to identify on being shown. After her husband received fire arm injury immediately Thana was informed. Thereafter Police vehicle arrived. The informant with her son-Pravin (P.W. 1), nephew-Navin (P.W. 6), Bhaisur-Ramjee Yadav (P.W. 3) and other villagers loading the injured on Jeep carried him to Begusarai Sadar Hospital where doctor after examination declared him as dead. The said fardbyan in presence of informant's son-Pravin (P.W. 1), Bhaisur-RamjeeYadav (P.W. 3) and nephew-Navin (P.W. 6) was explained to her and after finding it correct she put her right thumb impression on the fardbyan. As a witness to the fardbyan P.W. 1 (Pravin Kumar) and P.W. 6/Navin Yadav put their signature whereas P.W. 3 (Ramjee Yadav) put his L.T.I. On the basis of the said fardbyan on 05.02.2011 at 11.45 a formal F.I.R. vide Ballia P.S. Case No. 18 of 2011 was drawn for the offence under Sections 302/34 of the I.P.C. and Section 27 of the Arms Act against the appellant and 2-3 unknown accused persons. During investigation accusation against the appellant was found true and on 28.04.2011 Police submitted charge-sheet against the appellant keeping investigation pending against other accused persons. On 09.05.2011 learned Chief Judicial Magistrate, Begusarai took cognizance of offence and the case was committed to the court of Sessions on 26.09.2011. During investigation accusation against the appellant was found true and on 28.04.2011 Police submitted charge-sheet against the appellant keeping investigation pending against other accused persons. On 09.05.2011 learned Chief Judicial Magistrate, Begusarai took cognizance of offence and the case was committed to the court of Sessions on 26.09.2011. In the case on 21.11.2011 charge under Section 302/34 of the I.P.C. and Section 27 of the Arms Act was framed against the appellant however the appellant denied the same and claimed to be tried. 3. During the trial to establish its case on behalf of the prosecution altogether seven witnesses were examined. Out of seven witnesses, P.W. 1-Pravin Kumar, son of the deceased, though in the F.I.R. was cited as eye witness, has not claimed to witness the occurrence. P.W. 2-Kabutri Devi, wife of the deceased and informant, also in the fardbyan was shown as an eye witness to the occurrence however after describing some fact she was declared hostile. P.W. 3/Ramjee Yadav (brother of the deceased and Bhaisur of the informant) though in the F.I.R. was not shown to be ocular witness, during the trial he claimed to be an eye witness. It is pertinent to mention that P.W. 1-Pravin Kumar in his evidence has stated that Ramjee Yadav had filed a criminal case for offence under Section 307 of the I.P.C. against the father (deceased) of P.W. 1 and P.W. 1-Pravin Kumar. P.W. 5/Dhiraj Yadav though was not referred in the F.I.R or in the fardbyan or even in the evidence of P.W. 1, in his evidence has claimed to be ocular witness to the occurrence. Similarly, P.W. 6/Navin Yadav (nephew of the deceased and son of P.W. 3-Ramjee Yadav) though in the fardbyan (F.I.R.) was not shown as eye witness, during trial has claimed to be an eye witness. P.W. 7/Sanjay Singh is a formal witness who had proved the formal F.I.R. which was marked as Ext. 3. P.W. 4/Dr. Pramod Kumar Singh on 05.02.2011 was posted as Civil Assistant Surgeon, Sadar Hospital, Begusari and he conducted post-mortem examination on the dead body of the deceased. 4. After conclusion of prosecution evidence, on 20.05.2013 statement of appellant under Section 313 of the Cr.P.C. was recorded in which he claimed to be innocent, however no defence witness was examined. 5. Pramod Kumar Singh on 05.02.2011 was posted as Civil Assistant Surgeon, Sadar Hospital, Begusari and he conducted post-mortem examination on the dead body of the deceased. 4. After conclusion of prosecution evidence, on 20.05.2013 statement of appellant under Section 313 of the Cr.P.C. was recorded in which he claimed to be innocent, however no defence witness was examined. 5. Sri Ram Sumiran Rai, learned counsel for the appellant after referring entire evidence has argued that it is a peculiar case in which informant (wife of deceased) though was shown to be an eye witness in the fardbyan, during the trial has categorically deposed that she had not identified any of the accused persons in her evidence and this was the reason that prosecution declared her as hostile witness. He further submits that P.W. 1/Pravin Kumar (son of deceased as well as P.W. 2-informant) in his evidence has stated that he had not identified any of the accused persons. Rather from his evidence it is evident that none of the family members or even P.W. 3 or P.W. 6 had witnessed the actual occurrence. All the witnesses had arrived after the occurrence had already taken place and accused persons had fled away. He further submits that prosecution case may not be believed in view of the fact that on the basis of evidence it has been established that though fardbyan was shown to be recorded on the same day i.e. on the date of occurrence on 05.02.2011 at 10.00 P.M. during evidence it has come that fardbyan was actually recorded on the next day at 10.00 A.M. i.e. on 06.02.2011. He further submits that this is the reason that F.I.R. was not immediately sent to the Court and F.I.R. was received in the Court on 07.02.2011 i.e. two days after lodging of the formal F.I.R. which was lodged on 05.02.2011 at 11.45 P.M. Sri Rai, learned counsel for the appellant has further argued that evidence of the so-called eye witnesses is further demolished on perusal of postmortem examination report. He submits that P.W. 3, P.W. 5 and P.W. 6 in their evidence had stated that on the deceased two shots of firing was made, however in post-mortem examination two injuries were noticed, which were wound of entry and wound of exit communicating with each other. He submits that P.W. 3, P.W. 5 and P.W. 6 in their evidence had stated that on the deceased two shots of firing was made, however in post-mortem examination two injuries were noticed, which were wound of entry and wound of exit communicating with each other. He further submits that evidence has come that firing was made from a distance of 15-20 Feet, however fire arm injury on the person of deceased was noticed as given from a close range causing charring injury. It has further been argued that in this case without any explanation the Investigating Officer has not been examined and in absence of Investigating Officer the prosecution has completely failed to establish the place of occurrence. On aforesaid grounds learned counsel for the appellant submits that the judgment of conviction and sentence is liable to be set aside and appellant deserves to be granted clean acquittal. 6. Sri Ajay Mishra, learned Additional Public Prosecutor has opposed the Appeal. 7. Besides hearing learned counsel for the parties, we have minutely examined evidence on record and after going through the same we are of the considered opinion that it is a fit case for passing judgment of clean acquittal however before proceeding it would be necessary to cursorily refer to the evidence of P.W. 1 namely: Pravin Kumar, who is none else but the son of the deceased. In his evidence he proved his signature as well as signature of P.W. 6/Navin Yadav on the fardbyan, which were marked as Ext. 1 & 1/1 respectively. In paragraph 3 of his evidence he stated that occurrence had taken place on 05.02.2011 at about 7.00 P.M. At the time of occurrence he was inside his house and his father outside the house on road was smoking cigarette. Then 2-3 accused persons shot him and started fleeing away. After hearing sound of firing which was heard by him in the courtyard he along with his mother-Kabutri Devi (P.W. 2) came out by raising alarm and saw that his father was injured due to fire arm injury and fallen on road. Till then the accused persons who had shot at had already fled away. After getting information Police arrived there and his father was carried to Begusarai Sadar Hospital where he was declared dead. In paragraph 4 of his evidence he made specific statement that his mother had not gone to hospital. Till then the accused persons who had shot at had already fled away. After getting information Police arrived there and his father was carried to Begusarai Sadar Hospital where he was declared dead. In paragraph 4 of his evidence he made specific statement that his mother had not gone to hospital. He further stated that Police had not recorded fardbyan of his mother (P.W. 2) in hospital. In paragraph 5 of his examination-in-chief he stated that since the accused persons who had fired had already fled away, he could not see them nor he could identify any of the accused persons. In cross-examination in paragraph 6 he stated that the day on which his father was murdered, his uncle-Ramjee Yadav (P.W. 3) and his son-Navin Yadav (P.W. 6) had gone to Pokhariya on invitation. Again in paragraph no. 7 of his cross-examination P.W. 1 stated that after getting information of murder of his father his uncle-Ramjee Yadav (P.W. 3) and his son-Navin had come in the morning and then fardbyan was recorded on which Navin/P.W. 6 put his signature. In paragraph no. 8 of his cross examination he further indicated that his uncle Ramjee Yadav (P.W. 3) had instituted a case under Section 307 of the I.P.C. against his father which was pending in the court. It is pertinent to notice that though this witness who was the son of the deceased in categorical term had stated that none of witnesses had seen the culprits, during the trial uncle of P.W. 1 namely: Ramjee Yadav who was in inimical term with the deceased had come out with a case as if he and his two sons had witnessed the occurrence and identified the accused persons. This witness has made it clear that fardbyan was not recorded in Sadar Hospital, Begusarai rather fardbyan was recorded on the next day of occurrence in morning. On examination of his evidence the very initiation of the prosecution case comes into cloud of doubt and there was no reason to further proceed with the matter, however, we, to ascertain every fact has examined evidence of other witnesses also. 8. P.W. 2-Kabutri Devi, wife of the deceased, has not at all supported the prosecution case, and as such, she was declared hostile. 9. 8. P.W. 2-Kabutri Devi, wife of the deceased, has not at all supported the prosecution case, and as such, she was declared hostile. 9. P.W. 3 (Ramjee Yadav) in his evidence has come out with a case that at the time of occurrence he was with the deceased and deceased was smoking cigarette and thereafter accused persons came and fired. He has claimed that he is an eye witness to the occurrence and he also claimed to identify the appellant as one of the assailants. In paragraph no. 5 of his cross-examination this witness has accepted that he had filed a criminal case against his deceased brother-Hare Ram Yadav as well as his nephew-Pravin (P.W. 1) and the said case was pending in the court of 1st Additional Sessions Judge. In paragraph no. 10 of his cross-examination he denied the suggestion that on 05.02.2011 he along with his son had gone to his in-law's house, however in paragraph no. 11 of his cross-examination he himself admits that in the case F.I.R. was lodged by him and Daroga Jee had recorded his fardbyan at 10.00 A.M. one day after the occurrence. He stated that on the said fardbyan he had put his L.T.I. and his son had put his signature whereas Kabutri Devi-P.W. 2 (wife of deceased) had put her R.T.I. Admission of the statement of this witness in paragraph no. 11 of his cross-examination substantiates the submission of learned counsel for the appellant that first version of prosecution case was suppressed and subsequently, in a calculated manner, the appellant was arrayed as one of the accused in the case. Again in paragraph no. 13 of his cross-examination he reiterated that whatever he stated in fardbyan was recorded and thereafter signature and thumb impression was obtained. In paragraph no. 16 of his cross-examination he stated that lantern which was at the place of occurrence was purchased by his brother about ten days back. It is necessary to indicate that during the trial source of identification has not been brought on record, and as such, in absence of source of identification, identification of the appellant by the witnesses particularly P.W. 3 comes into cloud of doubt. 10. It is also relevant to notice at this juncture the evidence of P.W. 5/Dhiraj Yadav (nephew of the deceased) that the accused persons had covered their faces with bed sheet ¼pknj½ . 10. It is also relevant to notice at this juncture the evidence of P.W. 5/Dhiraj Yadav (nephew of the deceased) that the accused persons had covered their faces with bed sheet ¼pknj½ . In such situation claim of such witnesses of identification of the accused persons may not be believed. P.W. 5/Dhiraj Yadav regarding whom neither P.W. 1 in his evidence whispered nor the informant in her fardbyan had described his name, suddenly during the trial has come out with a case that he too had identified the appellant. The presence of P.W. 5/Dhiraj Yadav in context of a case in which first version was suppressed apparently may not be believed. 11. So far evidence of P.W. 6/Navin Yadav is concerned, though he has claimed to identify the appellant, his evidence can not be accepted as credible in view of evidence of P.W. 1/Pravin Kumar who in his evidence has categorically stated that Navin along with P.W. 1-Pravin and P.W. 3/Ramjee Yadav had reached the place of occurrence only after arrival of P.W. 2/Kabutri Devi. Till that time all the accused persons after committing the crime had already fled away. 12. P.W. 4/Dr. Pramod Kumar Singh on 05.02.2011 was posted as Civil Assistant Surgeon in Sadar Hospital, Begusarai who conducted post-mortem examination on the dead body of deceased at 8.00 A.M. and during post-mortem examination he noticed the following facts: "Blood and Brain material coming out of skull through a big vent in left temporo-fronto parietal skull with charring clearly seen over left maxilla nasal area. Right eye and orbital fossa is included in the big hollow going into skull with blood and clot with remaining blood and brain material in it. The almost empty skull was perforated at right parietal mid point with 2 " x 1 " everted margin (wound of exit) Again the body was meticulously examined in post mortem room and it was seen that there was charring near periphery of left orbit, bones of left frontal, upper left maxilla, anterior part of left parietal bone were lost to create big wound of entry. Opinion-Death was instantaneous due to high velocity close fire arm injury leading to loss of brain material" This witness has proved the post-mortem examination report which was in his writing and signature and marked as Ext. 2. On examination of evidence of P.W. 4 as well as Ext. Opinion-Death was instantaneous due to high velocity close fire arm injury leading to loss of brain material" This witness has proved the post-mortem examination report which was in his writing and signature and marked as Ext. 2. On examination of evidence of P.W. 4 as well as Ext. 2 (post-mortem examination report) it is evident that deceased had received only one gun shot injury. One was entry injury and another was exit injury. 13. In this case we have noticed a peculiar fact. Ofcourse in the case in absence of Investigating Officer inquest report nor formal F.I.R. were got proved but on record there is inquest report and on perusal of inquest report it appears that inquest report on the dead body was prepared on 05.02.2011 at 22.15 P.M. (10.15 P.M.) however on examination of Ext. 2 i.e. post-mortem examination report it is evident that dead body was received in Begusarai Sadar Hospital at 8.00 P.M. on 05.02.2011 and post-mortem examination was done on 06.02.2011 at 8.00 P.M. In absence of Investigating Officer this question remained unanswered as to how after receipt of the dead body in the hospital inquest report was prepared by the Police. 14. P.W. 7/Sanjay Singh is a formal witness who has only proved the fardbyan, which has been marked as Ext. 3. 15. On examination of evidence it is also established that deceased had received injury from a close range. This was the reason that charring mark was found on the entry wound of the deceased whereas the so-called eye witnesses had said that firing was made from a distance of 15-20 Feet. This also creates serious doubt on the case of prosecution. 16. On examination of entire evidence particularly the unanswered question as to how formal F.I.R. was shown to be recorded on the date of occurrence i.e. 05.02.2011 at 11.45 P.M. whereas the witnesses in specific term had stated that fardbyan was recorded on the next day in the morning at 10.00 A.M. The fardbyan at the first instance was shown to be recorded in Sadar Hospital, Begusarai however, the son of deceased in categorical term has stated that fardbyan was not recorded in Sadar Hospital, Begusarai since P.W. 2/Kabutri Devi had not gone to Sadar Hospital, Begusarai along with the deceased. 17. 17. On examination of entire evidence, we are of the considered opinion that prosecution has completely failed to establish its case, and as such, it was a fit case for acquittal, however, the learned trial judge has incorrectly passed the judgment of conviction and sentence. Accordingly, judgment of conviction dated-24th June, 2013 and sentence dated: 27-06-2013 passed by Sri Binay Kumar Sinha, learned 3rd Additional Sessions Judge, Begusarai in Sessions Trial No. 893 of 2011 (arising out of Ballia P.S. Case No. 18 of 2011) is hereby set aside and appellant is acquitted from all charges. The Appeal stands allowed. The appellant is in custody and since judgment of conviction and sentence has been set aside, appellant/Raj Kishor Yadav alias Bhauki Yadav is directed to be released forthwith, if not wanted in any other case.