JUDGMENT : CHAKRADHARI SHARAN SINGH, J. The appellant has preferred this appeal under Section 374(2) of the Code of Criminal Procedure assailing the judgment of conviction dated 22.11.2017 and an order of sentence dated 27.11.2017 passed by the learned 3rd Additional District & Sessions Judge Bhagalpur in Sessions Trial No. 540 of 2014 arising out of Pirpainti P.S. Case No. 124 of 2013, whereby and whereunder the appellant has been convicted and sentenced as under : 2. A written report of the informant Subhash Kumar Mandal (PW-3) dated 02.09.2013, addressed to the Station House Officer, Pirpainti P.S is the basis for registration of the concerned Pirpainti P.S. Case No. 124 of 2013, disclosing commission of offence punishable under Section 302 of the Indian Penal Code and section 27 of the Arms Act. The FIR was registered at 4:30 pm on 02.09.2013 based on the information received at the P.S at 4:30 pm on the said date. The place of occurrence was at a distance of 15 Kms from the P.S. The case, as narrated by the informant in his written report is that the informant was studying in his house when at about 10:30 pm he heard sounds of firing and as soon as he came out, he saw Mantu Mandal (husband of the deceased), Jichchu Mandal, Shankar Mandal, Ranjan Singh and Dayanand Yadav fleeing away after having killed the informant’s sister Sabita Devi. The occurrence was seen by his mother Urmila Devi (PW-1) and his nephew (son of the deceased) Ravi Kumar Mandal (PW-5). The deceased had sustained injuries in her parietal region and abdomen. He alleged that the relationship of the appellant with the deceased had broken down and they lived separately, though adjacent to each other. Because of some property disputes, the accused persons had shot the deceased dead. 3. The police upon completion of investigation submitted chargesheet against the appellant for commission of the offence punishable under Section 302 read with Section 34 of the Indian Penal Code and section 27 of the Arms Act, keeping the investigation pending against others. Cognizance was accordingly taken and charge was framed against the appellant only, on 24.07.2014 for commission of the offence punishable under Section 302 of the Indian Penal Code and Section 27 of the Arms Act giving rise to Sessions Trial No. 540 of 2014. 4. Cognizance was accordingly taken and charge was framed against the appellant only, on 24.07.2014 for commission of the offence punishable under Section 302 of the Indian Penal Code and Section 27 of the Arms Act giving rise to Sessions Trial No. 540 of 2014. 4. Subsequently on 30.07.2015 chargesheet was submitted against this appellant for the offence punishable under section 302/34 of the Indian Penal Code and section 27 of the Arms Act, keeping investigation pending against others. 5. After cognizance of the offence was taken, charge was also framed against co-accused Shankar Mandal, the appellant in Criminal Appeal (DB) No. 1122 of 2018 for the offence punishable under Section 302 read with section 34 of the Indian Penal Code and section 27 of the Arms Act, giving rise to Sessions Trial No. 540 of 2014. Thus, the aforementioned Pirpainti P.S. Case No. 124 of 2013 gave rise to two separate trials; one against the present appellant and other against appellant Shankar Mandal. Whereas the present appellant has been convicted and sentenced by the judgment and order dated 22.11.2017 and 27.11.2017 in Sessions Trial No. 540 of 2014 which are under challenge in Criminal Appeal (DB) No. 128 of 2018, the appellant Shankar Mandal came to be convicted and sentenced by the judgment and order dated 21.07.2018 and 24.07.2018 passed by the learned trial court in Sessions Trial No. 249 of 2016. 6. As both the appeals arise out of the same criminal case they have been listed together. Separate arguments were advanced in both the appeals by the learned counsels for the parties and the said Criminal Appeal (DB) No. 1122 of 2018 is also being disposed of by separate judgment and order by this Court. 7. Coming back to the facts of the present appeal, at the trial, prosecution examined altogether nine witnesses including two investigating officers namely Samrendra Kumar (PW-8) and Bharat Ram (PW-9), the informant (PW-3), the mother of the deceased Urmila Devi (PW-1), Ravi Kumar Mandal son of the deceased (PW-5), Ram Chandra Singh brother-in-law of the deceased (PW-4). 8. Prosecution’s witnesses Subhash Yadav (PW-2) and Panchanand Yadav (PW-7) did not support the prosecution’s case in any manner and accordingly, they came to be declared hostile at the instance of the prosecution. 9. 8. Prosecution’s witnesses Subhash Yadav (PW-2) and Panchanand Yadav (PW-7) did not support the prosecution’s case in any manner and accordingly, they came to be declared hostile at the instance of the prosecution. 9. Apart from the oral evidence, the prosecution brought on record following documentary evidence by way of exhibits to sustain the charges against the appellant:- (i) Signature of the informant on the written report (Exhibit-1) (ii) Signatures of three attesting witnesses on the fardbeyan (Exhibit-1/1, Exhibit-1/2 and Exhibit-1/3) (iii) Postmortem report (Exhibit-2) (iv) Confessional statement of the appellants (Exhibit-3) 10. It is the prosecution’s case that the appellant had confessed his guilt before the police, while in custody, in his statement recorded by the I.O. during the course of investigation. 11. After closure of the evidence of the prosecution’s witnesses, the appellant was questioned under Section 313 of the CrPC so as to give him an opportunity explaining the incriminating circumstances emerging against him from the prosecution’s evidence. The appellant categorically denied the circumstances and asserted that he worked as a labour and he did not possess any pistol and that the deceased was killed by one Hareram in respect of which he had lodged a case. 12. The trial court after having appreciated the evidence adduced at the trial reached a conclusion in its impugned judgment dated 22.11.2017 that the prosecution was able to establish the charges against the appellant for commission of offence punishable under section 302 of the Indian Penal Code and section 27 of the Arms Act beyond all reasonable doubt and accordingly, sentenced him to imprisonment and fine, as noted above. 13. We have heard Mr. Sunil Kumar Karn, learned counsel for the appellant and Ms. Shashi Bala Verma, learned Additional Public Prosecutor for the State. 14. Assailing the impugned judgment of conviction, learned counsel appearing on behalf of the appellant has submitted that no independent witness has supported the prosecution’s case and those witnesses who claimed at the trial to have seen the appellant with other accused persons fleeing away from the place of occurrence are not truthful witnesses, considering manifest inconsistencies in their depositions. The occurrence is said to have taken place late in the night when it was dark. The occurrence is said to have taken place late in the night when it was dark. Three witnesses namely, Subhash Kumar Mandal (PW-3), Ram Chandra Singh (PW-4) and Ravi Kumar Mandal (PW-5) claimed to have identified the appellant and others in torch light and that they were carrying torches. None of the torches was produced either during the course of investigation or at the trial. PW-1 is said to have identified the appellant in the flash of lightening. The prosecution has thus, not proved the source of light or identification of the appellant and therefore, their depositions deserve to be discredited. It has further been submitted that neither the inquest report has been proved nor the place of occurrence. As per the deposition of the informant (PW-3), the written report was given to the police officer who had arrived in the village which does not find support from the evidence of the I.O. Further, foremost information which the police had received after the occurrence, whereupon, the police officer had arrived in the informant’s village has been suppressed. Belated registration of the FIR, in the aforesaid background, gives rise to chance of false implication. It has further been submitted that it is evident from the deposition of the prosecution’s witnesses who are closely related to the deceased and the appellant that they were not maintaining good relationship. In such circumstance, there is greater chance of false implication of the appellant. 15. Learned Additional Public Prosecutor appearing on behalf of the State defending the finding recorded by the trial court has submitted that the prosecution’s witnesses who have supported the case of the prosecution have consistently deposed that they had seen this appellant and other accused persons armed with pistols and other fire arms soon after they had heard the sound of firing and came out of their house, when the deceased was found lying after having sustained firearm injuries. Their depositions lead to only irresistible conclusion that this appellant with others killed the deceased by use of firearm which fact stands supported by the postmortem report also. She, accordingly, submits that the trial court has rightly convicted the appellant and sentenced him to imprisonment by the impugned judgment and order. 16. Their depositions lead to only irresistible conclusion that this appellant with others killed the deceased by use of firearm which fact stands supported by the postmortem report also. She, accordingly, submits that the trial court has rightly convicted the appellant and sentenced him to imprisonment by the impugned judgment and order. 16. We have perused the impugned judgment and order of the trial court as well as lower court’s records and we have given out thoughtful consideration to the rival submissions advanced on behalf of the appellant and the State, as noted above. 17. It would be profitable to notice at the outset certain inferences which can be easily drawn based on the oral evidence of the prosecution’s witnesses that are relevant for due appreciation of the entire circumstance. 18. PW-5 is the son of the deceased but he is not the biological son of the appellant though in the format of deposition, he has been described as the son of the appellant. This inference has been drawn based on the deposition of the PW-5 to the effect that his date of birth was 01.03.2003. The occurrence is of 01.09.2013, which suggests that as on the date of occurrence he was ten and a half years old. The mother of the deceased (PW-1) has clearly deposed that three years before the date of occurrence, the deceased was married to the appellant. The deceased and the appellant were co-villagers. Further, it is evident from the deposition of the informant (PW-3) that according to him the deceased was second wife of the appellant. 19. Co-accused Shankar Mandal who has been described as brother-in-law (sala) of the appellant is certainly not the brother of the deceased rather brother of the appellant’s first wife Meena Devi. Further, the appellant and the informant are neighbours with two to four houses between their houses. 20. PW-1, mother of the deceased deposed at the trial that the deceased had come to her house late in the night at about 12:00 pm to ease herself. PW-1 accompanied the deceased and came out of her house where she saw this appellant, Jichchu Mandal, Shankar Mandal, Ranjan Singh and Dayanand Yadav standing. Appellant was carrying a pistol in his hand. In the flash lightening she had identified all of them. Thereafter, the appellant fired another shot at the deceased leading to her death. PW-1 accompanied the deceased and came out of her house where she saw this appellant, Jichchu Mandal, Shankar Mandal, Ranjan Singh and Dayanand Yadav standing. Appellant was carrying a pistol in his hand. In the flash lightening she had identified all of them. Thereafter, the appellant fired another shot at the deceased leading to her death. The deceased sustained one gun shot injury in her head and the other in their abdomen. She also deposed that the appellant used to demand money for purchasing cow/buffalo. In her cross-examination, she deposed that the entire area was inundated with flood and her house was also affected by flood. She also deposed that she would not come out of her house because of the flood. 21. PW-3, the informant supporting the prosecution’s case is said to have identified the appellant and other accused persons with aid of torch. According to him, he had come out of his house after hearing the sounds of gun firing and noticed that this appellant and other accused persons were fleeing away after shooting the deceased. The victim was lying in front of the door of the house. According to him, the deceased had sustained one gun shot injury in her abdomen and two in her parietal region. Further, according to these witnesses, the deceased was killed at the door of her matrimonial home and that he had gone there after having heard the sounds of gun shots. He also deposed that the victim was carrying on the business of Brick Kiln with one Hareram which was not acceptable to the appellant. The Chowkidar was informed by the informant and his family members, who had informed the police about the occurrence. The police came next day in the afternoon, whereafter the written report was handed over to the police officer. He denied the suggestion that on the date of occurrence Hareram Pandey and Chandan Tiwari had killed the deceased. 22. PW-4, the husband of the elder sister of the deceased deposed at the trial that on the date of occurrence he was there in his sasural. He had also heard the sounds of gun shots whereupon he had come out of the house and found the deceased dead. In the meanwhile, the villagers also came. He identified this appellant and other co-accused persons fleeing away. He had also heard the sounds of gun shots whereupon he had come out of the house and found the deceased dead. In the meanwhile, the villagers also came. He identified this appellant and other co-accused persons fleeing away. In his cross-examination, he deposed that he had seen from behind the accused persons fleeing away when it was dark in the night. The son of the deceased also deposed that after having heard the sounds of firing he had come out of the house and had seen this appellant and other accused persons. Co-accused Dayanand Yadav had fired first shot at the deceased and two shots were fired by this appellant injuring the deceased in her abdomen. According to the deposition of the son of the deceased, the deceased was injured by three gun shots fired by the accused persons in his presence. The deceased was brought inside the house by PW-5 Ravi Kumar Mandal (son of deceased and the informant (PW-3). According to him, the appellant was not willing to keep the deceased in his house and had told her to leave the house. 23. PW-7 has not supported the prosecution’s case. 24. PW-9 who is the first investigating officer had deposed in his evidence that the dead body was lying in verandah of the house of the deceased who had apparently died after having sustained fire arm injuries. According to him, he had seen the blood oozing out of the wounds. He prepared an inquest report, which was not been brought on record by way of evidence at the trial. In the midst of the investigation, the first investigating officer was transferred whereafter the second I.O could not say as to whether the deceased was the second wife of the appellant which is an uncontroverted fact. The chargesheet in the present case was submitted by the third I.O. i.e Surya Narayan Pandey who has not been examined at the trial. The Doctor who had conducted the postmortem examination on the dead body of the deceased had proved following antermortem injuries:- “1. One wound of entry with inverted and blackened margin of size ½” x ½” on left temporal scalp of skull. Projectile found to enter cranium piercing brain, came out through and exit wound with inverted margin of size 1"x1" situated over right parietal and occipetal junction of skull. 2. One wound of entry with inverted and blackened margin of size ½” x ½” on left temporal scalp of skull. Projectile found to enter cranium piercing brain, came out through and exit wound with inverted margin of size 1"x1" situated over right parietal and occipetal junction of skull. 2. One wound of entry with inverted and burnt margin of size ½” x ½” situated over right side abdomen in front at the level of amblicus 2" lateral to midline, projectile found to piercing abdominal cavity. loops of intestine and came out-through wound of exit with inverted margin of size 1"x1" at right lumber area of back. There was blood and blood clot found in cranium and abdominal cavity.” 25. On a careful scrutiny of the evidence adduced at the trial, it is easily discernible that the deceased died of two fire arm injuries which is not in conformity with the evidence of (PW-5) who claimed at the trial to have witnessed the occurrence. According to PW-5 the deceased had received the first gun shot injury caused by the accused Dayanand Yadav and thereafter two shots were fired by the father of PW-5. 26. Three of the witnesses namely, Subhash Kumar Mandal (PW-3), Ram Chandra Singh (PW-4) and Ravi Kumar Mandal (PW-5) son of the deceased, had seen the presence of the appellant and others in torch-light. All of them were separately carrying torches, who had come to the place of occurrence after having heard the gun shots. The deceased had sustained injuries in front of her house, which is the house of the appellant also. It is natural that Ravi Kumar Mandal (PW-5) being son of the deceased would have been there in the same house at the time of occurrence. Other prosecution’s witnesses i.e. PW-3 and PW-4 were in different houses i.e. the paternal house of the deceased in which PW-1 and PW-3 lived. 27. PW-4 is the husband of the elder sister of the deceased and he was present in the house of PW-1 at the time of occurrence. From the evidence of the prosecution’s witnesses it has emerged that there were other houses also near the house where the occurrence had taken place. 27. PW-4 is the husband of the elder sister of the deceased and he was present in the house of PW-1 at the time of occurrence. From the evidence of the prosecution’s witnesses it has emerged that there were other houses also near the house where the occurrence had taken place. If the prosecution’s case is to be accepted then it was just a coincidence that PW-1 was accompanying the deceased and had reached with her near the house of the deceased when the shots were being fired by the appellant including other accused persons. Soon thereafter PW-5 the son of the deceased, PW-3 the brother of the deceased and PW-4 brother-in-law (bahnoi) of the deceased arrived at the place of occurrence, all of them carrying torches and thus seen the accused persons either committing the offence or fleeing away from the place of occurrence. No source of identification was proved at the trial. No witness other than PW-1, 3, 4 and 5 have supported the prosecution’s case. It has never been the case of the prosecution that PW-5 happened to be the son of the appellant who deposed against his father for killing his (PW-5’s) mother. 28. Last but not the least, the prosecution did not disclose as to what information was transmitted by the Chowkidar to the police consequent upon which the police had arrived in the village. The prosecution, thus, withheld the initial review of the information. 29. Taking into account a holistic view of the entire facts and circumstances, we do not consider it safe to uphold the finding of conviction recorded by the trial court. 30. Accordingly, the judgment of conviction dated 22.11.2017 and an order of sentence dated 27.11.2017 passed by the learned 3rd Additional District & Sessions Judge Bhagalpur in Sessions Trial No. 540 of 2014 arising out of Pirpainti P.S. Case No. 124 of 2013, are hereby set aside. 31. Since, the appellant Mantu Mandal is on bail, he is discharged from the liability of his bail bonds and sureties, if any. 32. This appeal is allowed.