JUDGMENT : RAKESH KUMAR, J. 1. Three appellants, who are full brothers, after being convicted and sentenced, have approached this Court by filing the present appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Cr.P.C.’). All the appellants by judgment dated 21-08-2013 were convicted for offence under Section 302/34 of the Indian Penal Code, 1860 (hereinafter referred to as ‘I.P.C.’) and Section 27 of the Arms Act, 1959 (hereinafter referred to as ‘Arms Act’). By order dated 22-08-2013, all the appellants under Section 302/34 of the I.P.C. were sentenced to undergo imprisonment for life and to pay a fine of Rs. 5,000/-(five thousand) each. In default of payment of fine, they were directed to further undergo simple imprisonment for six months. Under Section 27 of the Arms Act, all the three appellants by the same order i.e. order dated 22-08-2013 were sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 3,000/-(three thousand) each. In case of default in payment of fine, they were directed to further undergo simple imprisonment for three months. The appellants were convicted and sentenced in Sessions Trial No. 29 of 2002/190 of 2010 (arising out of Obra P.S. Case No. 13 of 2001) by the learned Adhoc Additional Sessions Judge-IV, Aurangabad (hereinafter referred to as the ‘Trial Judge’). 2. Short fact of the case is that on 27-01-2001 at 20:00 hrs (8:00 P.M.), Sub-Inspector of Police Ajay Kumar Singh (P.W.7) officer incharge of Obra Police Station recorded fardbeyan of Sita Baitha (P.W.4), aged about 70 years, resident of village – Luka, P.S. Pauthu, District-Aurangabad. Sita Baitha (P.W.4) gave his fardbeyan at Kojahri Pind in Soharasi Badhar near the dead body of his son Ashok Baitha, aged about 26 years. In the fardbeyan, he stated that on the same date at about 15.45 hrs (3:45 PM) with his son Ashok Baitha, he was thrashing paddy. Suryadev Yadav (appellant no. 1), Surayanath Yadav (appellant no. 2) and Akshay Yadav (appellant no. 3), all sons of late Sukhlal Yadav, resident of village Luka, P.S. Pauthu, District-Aurangabad carrying gun in their right hand along with two unknown accused persons arrived in the khalihan and caught hold of his son Ashok Baitha and thereafter, carried him for about half km. 1), Surayanath Yadav (appellant no. 2) and Akshay Yadav (appellant no. 3), all sons of late Sukhlal Yadav, resident of village Luka, P.S. Pauthu, District-Aurangabad carrying gun in their right hand along with two unknown accused persons arrived in the khalihan and caught hold of his son Ashok Baitha and thereafter, carried him for about half km. to the western side of Soharasi Badhar and behind Konahri on the western side, they killed his son by giving shot of firing and thereafter, all of them fled away towards village Rajubigha. Thereafter, the informant climbed on Luka fall and raised alarm, however; none came. Thereafter, on hearing sound of firing, number of villagers of nearby villages i.e. Sidui, Dingraha, Ghurdaur and Luka assembled there and they saw and identified accused persons while fleeing away and on being asked, they would explain. The informant further stated that he heard two shots of firing on the date of occurrence at 4:00 PM. After the said occurrence, the informant from Luka fall, instead of going nearer to his deceased son, he went to Police Station, Pauthu. The informant gave the reasons for the occurrence that in relation to murder of one of the villager namely Kamlesh Yadav, name of his deceased son was given by the accused persons of the case and from the said date, the aforesaid accused persons were after his son. In the fardbeyan, it was further stated that police officer of Pauthu Police Station had brought the informant to Obra Police Station, where the informant gave his fardbeyan before the officer incharge. The said fardbeyan was read over to him and after finding it correct, he put his L.T.I. (Left Thumb Impression). 3. On the basis of said fardbeyan, on the same date i.e. on 27-01-2001 at 23:00 hrs (11:00 P.M.), a formal F.I.R., vide Obra P.S. Case No. 13 of 2001, was registered for the offence under Section 302/34 of the I.P.C. and Section 27 of the Arms Act against all the three appellants and two unknown accused persons. After investigation, on 05-05-2001, chargesheet was submitted against all the appellants and the learned Chief Judicial Magistrate, Aurangabad on 30-06-2001 took cognizance of the offence. The case was committed to the court of sessions on 19-01-2002 and it was numbered as Sessions Trial No. 29 of 2002. After investigation, on 05-05-2001, chargesheet was submitted against all the appellants and the learned Chief Judicial Magistrate, Aurangabad on 30-06-2001 took cognizance of the offence. The case was committed to the court of sessions on 19-01-2002 and it was numbered as Sessions Trial No. 29 of 2002. Thereafter, on 22-06-2002 charge under Section 302/34 of the I.P.C. and Section 27 of the Arms Act was jointly framed against all the three accused persons (appellants), which was denied by them and they claimed to be tried. 4. During the trial, to establish its case on behalf of the prosecution, altogether seven witnesses were examined. Out of seven witnesses, P.W.3 Sugiya Devi (mother of the deceased) P.W.4, Sita Baitha (informant and father of the deceased) and P.W.5 Sunita Devi (wife of the deceased) were examined as eyewitness to the occurrence. P.W.1 Lal Mohan Ram and P.W.2 Ram Narayan Singh are formal witnesses. P.W.6 Dr. Anoop Kumar Sinha has conducted post-mortem examination on the dead body of the deceased and P.W.7 Ajay Kumar Singh, Sub-inspector of Police, officer incharge of Obra Police Station has recorded fardbeyan and investigated the case. 5. After completion of the prosecution evidence, on 18-08-2012, all the appellants were questioned on incriminating circumstances and evidences against them and their statement under Section 313 of the Cr.P.C. was recorded, in which, they claimed to be innocent and claimed to be falsely implicated. 6. To disprove the prosecution case from defence side, altogether four witnesses were examined, namely, D.W.1 Bhola Yadav, D.W.2 Sheo Nandan Singh, D.W.3 Sita Ram Paswan and D.W.4 Deo Nandan Yadav. 7. After placing entire evidence, Sri Abhishek Neel, learned counsel, in presence of Mr. S. Arshad Alam, learned counsel for aforesaid three appellants, has argued that the appellants were falsely implicated by the informant due to the reason that the deceased son of the informant was accused in relation to murder of one Kamlesh Yadav. He further submits that deceased himself was a veteran criminal and he was member of a banned organization, namely M.C.C. He submits that it appears that the son of the informant was killed by members of C.P.I. (ML) and the appellants, being co-villagers, were implicated by the informant. In sum and substance, it has been argued that the prosecution has not been able to establish its case beyond all reasonable doubt. 8. In sum and substance, it has been argued that the prosecution has not been able to establish its case beyond all reasonable doubt. 8. According to Sri Abhishek Neel, learned counsel for the appellants, the entire prosecution case appears to be doubtful on the basis of evidence of informant (P.W.4), who is none else but father of the deceased. He submits that in the fardbeyan, the informant himself has stated, as if, in his presence, the present three appellants forcibly dragged his son for about half kilometer and thereafter, near Soharsi Pind, when they went, he heard sound of two firing and thereafter, he claimed that all the accused persons fled away. As per fardbeyan, it is evident that he is witness to the fact that his son was forcibly dragged by three appellants and thereafter, he heard two sounds of firing and as such, as per fardbeyan, he was no ocular witness on the point of causing fire-arm injury to his son. In the fardbeyan, he specifically stated that after hearing the sound of firing, instead of going nearer to the dead body of his son, he firstly raised alarm on climbing over Luka fall and from there, he directly went to Pauthu Police Station, but in his evidence during the trial, he stated that the three appellants caught his son in khalihan and carried him to some extent and thereafter, gunned down him. His son died there. On hulla, he and others went there and saw that his son Ashok had received fire-arm injury. Thereafter, Obra police arrived and he gave his fardbeyan. According to learned counsel for the appellants, there is serious contradiction in between the fact disclosed in the fardbeyan and in the evidence of the informant, who was examined as P.W.4. By way of referring to evidence of informant (P.W.4), it has been argued that he was not eye-witness to the occurrence and in the case, the place, where fardbeyan was recorded itself, comes into the cloud of doubt. Similarly, it has also been argued that in the fardbeyan or in the evidence of P.W.4 (informant), there was no whisper at all as to whether mother of the deceased Sugiya Devi (P.W.3) and wife of the deceased Sunita Devi (P.W.5) were present at the place of occurrence or not. Similarly, it has also been argued that in the fardbeyan or in the evidence of P.W.4 (informant), there was no whisper at all as to whether mother of the deceased Sugiya Devi (P.W.3) and wife of the deceased Sunita Devi (P.W.5) were present at the place of occurrence or not. During the trial, both mother and wife of deceased i.e. P.W.3 and P.W.5 respectively have come out, as if, entire occurrence had taken place in their presence. On the basis of evidence of P.W.3 and P.W.5, it has been argued that none of aforesaid witnesses in their evidence have stated regarding presence of other witnesses, particularly in the evidence of P.W.3, it has not been stated as to whether P.W.4 and P.W.5 were present at the time of occurrence. Similar fact has been stated by the informant (P.W.4) and wife of deceased Sunita Devi (P.W.5). It has also been argued that as per evidence of investigating officer (P.W.7) and P.W.4 (informant), it would be difficult to come to a specific conclusion as to at which place, his fardbeyan was recorded. Accordingly, it has been argued that it appears that in a case, in which, the deceased, who was hardened criminal and a member of banned organization like M.C.C., might had been killed by some of his enemy, particularly the member of C.P.I. (ML). Being villagers and the fact that earlier the deceased son of the informant was made accused in the murder of Kamlesh Yadav by the appellants, the appellants were framed in the present case. 9. By way of referring to evidence of D.W.3 Sita Ram Paswan, it has been argued that since the case was not truthful, despite the fact that during investigation statement of D.W.3 Sita Ram Paswan was recorded under Section 161 of the Cr.P.C., the prosecution did not examine him as prosecution witness and in defence evidence, he stated that in the field, informant disclosed that his son was killed by five unknown accused persons. He has also referred to evidence of D.W.2 Sheo Nandan Singh to the extent that he had brought on record a copy of F.I.R. in Pauthu P.S. Case No. 113 of 2000, which was marked as Ext.A and also chargesheet in the said case, which was marked as Ext.A/1 to show that deceased was accused in the F.I.R., which was lodged for offence under Section 364 of the I.P.C. and he was charge-sheeted in the said case for offence under Sections 364, 302, 201 of the I.P.C. 10. Sri Abhishek Neel, learned counsel for the appellants, by way of referring to evidence of P.W.7/investigating officer, has argued that the investigating officer, in his evidence, has also stated that deceased was a member of banned group and he was having criminal antecedent. In sum and substance, it has been argued that in a case, in which, son of the informant was killed by some unknown accused persons, the appellants were falsely implicated and the prosecution though has not established its case beyond all reasonable doubt, the learned Trial Judge has incorrectly passed the judgment of conviction and sentence, which requires interference. 11. Sri Ajay Mishra, learned Addl. Public Prosecutor opposing the appeal, has argued that the informant as well as P.W.3 Sugiya Devi (mother of the deceased) and P.W.5 Sunita Devi (wife of the deceased) have deposed that in their presence, the deceased was done to death. He submits that the oral evidence has also been supported by the medical evidence and in the evidence of P.W.6 Dr. Anoop Kumar Sinha, who conducted post-mortem on the dead body of the deceased, and on the basis of post-mortem report, on the person of deceased, two gun shot injuries were found, which supports the prosecution case. 12. Besides hearing learned counsel for the parties, we have minutely examined the entire evidences on record and after going through the same, prima facie, we are of the opinion that the prosecution has not been able to establish its case beyond all reasonable doubt, however before proceeding, it is necessary to discuss the evidence. 13. During trial, the informant Sita Baitha (father of the deceased) was examined as P.W.4 and in his evidence he stated that on the date and time of occurrence, he was in his khalihan and thrashing the paddy. 13. During trial, the informant Sita Baitha (father of the deceased) was examined as P.W.4 and in his evidence he stated that on the date and time of occurrence, he was in his khalihan and thrashing the paddy. In the said khalihan, all the three appellants carrying gun in their hand, arrived there and caught hold of his son Ashok Baitha (deceased) and carried him to some distance and thereafter, fired on him. His son died at the same place. On hulla, he and others reached there and saw that Ashok (deceased) had received gun shot injury. In paragraph -3 of his evidence, he stated that at the place of occurrence, police of Obra Police Station arrived, before whom, he gave his fardbeyan, which was recorded by the police and read over to him and after finding it correct, on the same, he put his thumb impression. In paragraph -4, he stated that there was no reason for the accused to commit the said crime. In paragraph -7 of his cross-examination, he stated that the khalihan, where he was present, was about one km. away from his main village. In paragraph-15 of his cross-examination, he stated that it is not correct that in his fardbeyan, he has stated that from Luka fall, instead of going nearer to his deceased son, he had gone to Pauthu Police Station. On perusal of the fardbeyan, it is evident that this witness in paragraph-15 has made a contrary statement, as stated by him in the fardbeyan. In the fardbeyan, in specific term, this witness has stated that from Luka fall, instead of going nearer to the deceased son, he directly went to Pauthu Police Station. In paragraph-16 of his cross-examination, he further stated that in his fardbeyan, he had not stated that when from Luka fall, he raised hulla, none had come there. This statement too is contrary to the fact disclosed by him in his fardbeyan. In paragraph-18 of his cross-examination, he has stated that he had given his statement in the Pauthu Police Station, which was written, but it was not read over to him and he also not gave any thumb impression on the same. At least, on examination of statement made in paragraph-18 of his cross-examination, this fact is evident that from the place of occurrence, firstly he went to Pauthu police station where he gave his statement. At least, on examination of statement made in paragraph-18 of his cross-examination, this fact is evident that from the place of occurrence, firstly he went to Pauthu police station where he gave his statement. In the evidence, none of the police officer from Pauthu police station has been examined nor any fact has been brought on record as to whether at first instance, in Pauthu Police Station, the informant disclosed the name of any of the accused persons or not. Had it been a case that the appellants were identified by the informant at the time of occurrence and informant himself accepts that he firstly went to Pauthu police station and gave his statement, in that event, he would have certainly disclosed the name of appellants, as assailants. Had it been done so, in the wireless message, which was sent by Pauthu police station to Obra police station, this fact would have certainly been stated, even then, the Obra police personnel directly went to the place of occurrence on the basis of wireless message and in absence of informant, they carried the dead body to Obra police station. This fact has come in the evidence of P.W.7 Ajay Kumar Singh, officer incharge of Obra Police Station, who recorded fardbeyan and also investigated the case. In paragraph-20 of his cross-examination, the informant had further stated that he along with police official of Pauthu police station reached at Luka fall, then he got information that the dead body of his son was taken away by the police personnel of Obra police station, since the area, where the dead body was found, was within the territorial jurisdiction of Obra police station. Thereafter, the informant went to Obra police station and police official of Pauthu police station returned back from there. In paragraph-21 of his cross-examination, he further stated that when from Pauthu police station along with police he arrived near the Luka fall, it was already 8-9 PM (night). He further clarified in the same paragraph that at that very time, none of the villagers was present at Luka fall. From Luka fall, he firstly came back to his village. In his village, chowkidar Ramadhar (not examined) informed him that dead body was taken away by the police official of Obra police station. He further clarified in the same paragraph that at that very time, none of the villagers was present at Luka fall. From Luka fall, he firstly came back to his village. In his village, chowkidar Ramadhar (not examined) informed him that dead body was taken away by the police official of Obra police station. In paragraph-22 of his cross-examination, he further stated that alongwith the dead body, none of the villagers had gone to Obra police station. Subsequently, carrying a ykyVsu (lantern) in his hand, the informant (P.W.4) went to Obra Police Station alone. In paragraph-26 of his cross-examination, he further stated that when he reached Obra police station in between 9 and 10 pm, the dead body of his son was lying on the vehicle in the police station. In paragraph-27, he further clarified that from the village of informant (P.W.4), Obra police station was about 15 km away. In paragraph-28 of his cross-examination, this witness further stated that while he reached police station and disclosed that he was the father of the deceased and came on foot, the officer incharge told him that he was in search of him. He (P.W.4) remained in police station for whole night and till then, none of his villagers had arrived there. In paragraph-30 of his cross-examination, he stated that Darogaji had recorded his statement in the night itself. In paragraph-32 and 33 of his cross-examination, he further stated that in the morning, the dead body was sent for post-mortem to Aurangabad and thereafter, Obra police never called him. In paragraph-35 of his cross-examination, he denied the suggestion that his son Ashok Baitha (deceased) was accused in the murder of Kamlesh Yadav and case was going on. He further stated that he was not aware as to whether appellant no. 2 Suraya Nath Yadav had lodged a case, vide Rafiganj P.S. Case No. 113 of 2000, in relation to murder of his brother Kamlesh Yadav. In paragraph-46 of his cross-examination, he further denied that his deceased son was accused in Goh P.S. Case No. 53 of 2000 on allegation of attacking police party. He was given suggestion that his son was killed by some unknown accused persons and due to animosity, the informant had lodged the present case, however; this suggestion was denied. 14. In paragraph-46 of his cross-examination, he further denied that his deceased son was accused in Goh P.S. Case No. 53 of 2000 on allegation of attacking police party. He was given suggestion that his son was killed by some unknown accused persons and due to animosity, the informant had lodged the present case, however; this suggestion was denied. 14. While examining the evidence of informant (P.W.4), it would be necessary to take note of the fact disclosed by the investigating officer Ajay Kumar Singh, who has been examined as P.W.7. In his evidence, he stated that on 27-01-2001, he was officer incharge of Obra police station. In his evidence, he proved the fardbeyan, which was in his writing and signature and it was marked as Ext.6, he proved his signature and the forwarding on fardbeyan marked as Ext.6/A, signature of witness Arbind (not examined) on the fardbeyan as Ext.6/B, inquest report Ext.1/A, seizure list Ext.2/A and dead body challan Ext.4/A. He stated that he had prepared fardbeyan, inquest report and dead body challan and he sent the dead body for the postmortem and inspected the place of occurrence. In paragraph-6 of his examination-in-chief, he stated that he recorded statement of Lal Mohan Ram (P.W.1), Singhiya Devi (P.W.3), Sunita Devi (P.W.5), Kanchan Kumari (not examined) and witness Sita Paswan (D.W.3). In paragraph-8 of his cross-examination, the investigating officer stated that on getting information, he went to the place of occurrence. He stated that information in respect of occurrence was received by him from police patrolling party as well as officer incharge of Pauthu police station through wireless message. At that very time, he had not received information that in the occurrence, Ashok Baitha was killed. After getting information, he made station diary entry. After receiving message through wireless, he did not contact officer incharge of Pauthu police station. He further stated that he was informed by the informant (P.W.4) Sita Baitha that he had gone to Pauthu police station. In paragraph – 11 of his cross-examination, the investigating officer has stated that Sita Baitha (P.W.4) was brought by officer incharge of Pouthu police station at the place of occurrence. He did not record statement of officer incharge of Pauthu police station. Officer incharge of Pauthu police station had arrived with police force. In paragraph – 11 of his cross-examination, the investigating officer has stated that Sita Baitha (P.W.4) was brought by officer incharge of Pouthu police station at the place of occurrence. He did not record statement of officer incharge of Pauthu police station. Officer incharge of Pauthu police station had arrived with police force. He further stated that he did not ask any question from the officer incharge of Pauthu police station as to whether he had recorded fardbeyan of Sita Baitha or not. He denied the suggestion that he had inquired from officer incharge of Pauthu police station and he had replied that Sita Baitha had given statement against unknown accused. At this juncture, it is necessary to notice that the informant in his evidence has specifically stated that immediately after the occurrence, without going nearer to the dead body of his son, he went to Pauthu police station and alongwith the Pouthu police, he arrived at the place of occurrence. From place of occurrence, he went to his village and from village on foot alone, he went to the Obra police station, where he gave his statement. The evidence of informant makes it clear that P.W.7/investigating officer is not making correct statement or informant himself is telling lie. The investigating officer in paragraph – 12 of his cross-examination has stated that when he recorded fardbeyan of Sita Baitha (P.W.4), at that very time, 8-10 persons were present, whereas, such fact was not stated by the informant in his evidence. In paragraph – 13 of his cross-examination, he had described about place of occurrence and stated that khalihan was of one Ram Pravesh Singh, however; the investigating officer has not examined Ram Pravesh Singh. In paragraph – 15 of his cross-examination, the investigating officer has stated that he had recorded that deceased was member of M.C.C. (a banned organization) and earlier on number of occasions, he had gone to jail and people were frightened with him and due to fear, nobody was against him. In paragraph – 16 of his cross-examination, he further stated that there was dispute in between M.C.C. and C.P.I. (ML) and there was possibility of the said occurrence due to such dispute. The deceased was chargesheeted in number of cases. In paragraph – 16 of his cross-examination, he further stated that there was dispute in between M.C.C. and C.P.I. (ML) and there was possibility of the said occurrence due to such dispute. The deceased was chargesheeted in number of cases. In paragraph – 17 of his cross-examination, the investigating officer has stated that mother of the deceased (P.W.3) and wife of the deceased (P.W.5) had made accusation against the appellants, but villagers had stated that at the time of occurrence, accused persons were in village. 15. P.W.3 Sugiya Devi (mother of the deceased) in her evidence has claimed, as if, entire occurrence had taken place in her presence. As per her evidence, only three appellants had come to khalihan and caught her son from backside and dragged him to some distance and in her presence, Suryadeo Yadav (appellant no. 1) gave shot of firing on her son. Though in her evidence, she stated that there were only three accused persons, who were appellants, the informant in his evidence has stated that there were five accused persons i.e. three appellants and two unknown persons. This has been reiterated by P.W.3 in paragraph -5 of her cross-examination, in which, she stated that total three accused persons had come. In paragraph – 9, this witness too denied that her deceased son was accused in Obra P.S. Case No. 5 of 2001, Rafiganj P.S. Case No. 113 of 2000 and Goh P.S. Case No. 53 of 2000 relating to extremists group. In paragraph – 12 of her cross-examination, her attention was drawn to her previous statement that during investigation, before the police she had stated that after 3:00 PM from khalihan she had already returned back and till that time, nothing had happened nor she had seen anything, though she denied this fact, but on examination of evidence of investigating officer/P.W.7 in paragraph – 19, it is evident that before the police, she had stated the fact that she had already returned back prior to the occurrence. Accordingly, no reliance can be placed on the evidence of P.W.3 Sugiya Devi. 16. Similarly, P.W.5 Sunita Devi (wife of the deceased) in paragraph – 1 of her evidence stated that on the date and time of occurrence, she was in khalihan and thrashing the paddy alongwith her mother-in-law, father-in-law, husband and nanad (sister of her husband). Accordingly, no reliance can be placed on the evidence of P.W.3 Sugiya Devi. 16. Similarly, P.W.5 Sunita Devi (wife of the deceased) in paragraph – 1 of her evidence stated that on the date and time of occurrence, she was in khalihan and thrashing the paddy alongwith her mother-in-law, father-in-law, husband and nanad (sister of her husband). She stated that all the three appellants arrived there and caught hold of her husband Ashok Baitha. They started assaulting him by belt and carried him towards eastern side of khalihan and after some distance, on temporal region and chest of her husband, they gave shot of firing and killed her husband. In paragraph – 2, she stated that police had arrived there and inquired from her. In paragraph – 14 of her cross-examination, her attention was drawn to her previous statement that she had not stated that while she was in khalihan, accused persons arrived there and after catching hold of her husband, they started assaulting him by belt and carried him towards eastern side of the khalihan and on his temporal region and chest they gave shot of firing, whereby her husband died. The said suggestion was denied. However, on examination of paragraph – 18 of the cross-examination of investigating officer, it is evident that during investigation, she had not stated aforesaid fact. Meaning thereby that this witness during the evidence has developed the story, as if, she was present. Otherwise also, her presence as well as presence of P.W.3 Sugiya Devi appear to be doubtful due to the simple reason that on examination of the evidence of informant (father of the deceased), it is evident that at the time of occurrence, he and deceased were alone. Accordingly, no reliance can be placed on the evidence of either P.W.3 (mother of the deceased) or P.W.5 (wife of the deceased). 17. P.W.1 Lal Mohan Ram is a formal witness, who has proved signature on inquest report, which was marked as Ext.1 and signature on seizure list as Ext.2. However, in paragraph – 3 of his cross-examination, he, while accepting that seizure list was not prepared in his presence, stated that Sitaram Baitha (P.W.4) and he had informed the police that unknown accused persons had murdered and accused persons were not of mauza Luka. However, in paragraph – 3 of his cross-examination, he, while accepting that seizure list was not prepared in his presence, stated that Sitaram Baitha (P.W.4) and he had informed the police that unknown accused persons had murdered and accused persons were not of mauza Luka. The evidence of P.W.1 clarifies that none of the accused persons were identified, even by the informant, at the time of occurrence. 18. P.W.2 Ram Narayan Singh is an advocate clerk and he has proved formal F.I.R., which was marked as Ext.3. 19. P.W.6 Dr. Anoop Kumar Sinha on 27-01-2001 and 28-01-2001 was posted as Medical Officer in Sadar Hospital, Aurangabad and he conducted post-mortem on the dead body of deceased and he proved post-mortem report, which was marked as Ext.4. Since death by fire-arm injury is not in dispute, there is no need to discuss in detail about injury found on the person of the deceased, however one error was committed in preparing post-mortem report that in the post-mortem report, the date of post-mortem was mentioned as 27-01-2001, whereas actually it was conducted on 28-01-2001, which has been clarified by P.W.6 himself. 20. Of course, in a criminal trial, there is no need to emphasize on the evidence of defence witnesses, but in view of facts and circumstances of the present case, it is necessary to take note of evidence of D.W.3 Sita Ram Paswan. 21. Sita Ram Paswan (D.W.3) was examined by the investigating officer during investigation and his statement was recorded under Section 161 of the Cr.P.C., however; to the reasons best known to the prosecution, he was not examined as prosecution witness and as such, he was examined as defence witness. In defence evidence, he stated that in his statement recorded under Section 161 of the Cr.P.C., he had stated that informant in khalihan itself had informed that five unknown accused persons had committed crime. Besides this, D.W.2 Sheo Nandan Singh has brought on record copy of F.I.R. in Pauthu P.S. Case No. 113 of 2000, which was marked as Ext.A and chargesheet in the said case marked as Ext.A/1, which suggests that the deceased was chargesheeted accused in the said case for offence under Sections 364, 302, 201 of the I.P.C. Besides this, regarding criminal antecedent and association of deceased with a banned organization, the investigating officer has elaborately stated in his evidence. 22. 22. On examination of entire aforesaid evidence, there is no doubt that the informant though at the time of occurrence was present at the place of occurrence, but he did not identify any of the accused persons. It also appears that except informant, none was present at the place of occurrence. The prosecution case comes into cloud of serious doubt, in view of the fact that the investigating officer in his evidence has stated, as if, he recorded fardbeyan at the place of occurrence i.e. near Luka fall, however the informant in his evidence is very much categorical that after the occurrence, firstly he went to Pauthu Police Station, from there, when he came back to the place of occurrence, he was informed by chowkidar of the village that dead body was already taken away by Obra Police Station. Subsequently, on foot, carrying a lalten in his hand, the informant covered about a distance of 15 km. and reached Obra Police Station and thereafter, his statement was recorded. 23. In view of evidence of P.W.4/informant, there is serious doubt regarding the presence of P.W.3 and P.W.5 at the place of occurrence. Regarding the fact that none of the accused persons were identified, the evidence of P.W.1 also corroborates. In that view of the matter, we are of the opinion that it was not a case for convicting and sentencing the appellants. 24. In view of evidences, which we have discussed in detail hereinabove, we are of the considered opinion that the prosecution has not been able to establish its case beyond all reasonable doubt. Accordingly, by way of extending benefit of doubt, the judgment of conviction dated 21-08-2013 and order of sentence dated 22-08-2013 passed in Sessions Trial No. 29 of 2002/190 of 2010 (arising out of Obra P.S. Case No. 13 of 2001) by the learned Adhoc Additional Sessions Judge-IV, Aurangabad is, hereby, set aside and appeal is allowed. All the three appellants are acquitted from all the charges. 25. Since the judgment of conviction and sentence has been set aside and all the appellants are in custody, they are directed to be released forthwith, if not wanted in any other case.