JUDGMENT : Chakradhari Sharan Singh, J. The appellant has preferred this appeal under Section 374(2) of the Code of Criminal Procedure assailing a judgment of conviction dated 12.12.2019 and an order of sentence dated 17.12.2019 passed by the learned Additional Sessions Judge-III, Vaishali at Hajipur in Sessions Trial No. 318 of 2015 arising out Bhagwanpur P.S. Case No. 183 of 2013, whereby and whereunder the appellant has been convicted and sentenced as under : Conviction under Section Sentence Imprisonment Fine (Rs.) In default of fine under Section 302 of the IPC Rigorous Imprisonment for life Rs. 10,000/- SI for Six months Section 27 of the Arms Act Rigorous Imprisonment for 5 years Rs. 5000/- SI for three months 2. Dhiraj Kumar Chaudhary, (PW-5), a nephew of the deceased is the informant of the concerned Bhagwanpur P.S. Case No. 183 of 2013, disclosing commission of the offences punishable under Sections 302 read with Section 34 of the Indian Penal Code and Section 27 of the Arms Act. According to the informant’s narrative in his fardbeyan recorded by an Assistant Sub-Inspector of Police J.S. Mishra of Bhagwanpur Police Station (not examined), on 09.08.2013 in the postmortem house of the Sadar Hospital (Hajipur) at 12:15 P.M., the occurrence had taken place at 08:00 A.M. when the informant was having tea in a line hotel of one Ranjeet Singh situated adjacent to N.H-77. After hearing the sound of firing, according to him, he rushed towards the highway and found that some people armed with pistol and iron rods were assaulting two persons. Immediately, thereafter, he rushed towards the site of occurrence where one Sunil Kumar Chaudhary was seen crying for help. When he reached the place of occurrence, he noticed that this appellant, co-accused Randhir Kumar Chaudhary and Sushil Kumar Chaudhary were carrying pistol. Co-accused Swetambar Chaudhary was having an iron rod in his hand whereas co-accused Ashutosh Kumar Chaudhary was armed with a sharp-edged sickle. Co-accused Bali Ram Chaudhary and co-accused Jay Prakash Rai were also carrying pistols. There were three other persons, who could not be identified by the informant. All of them were assaulting the informant’s uncle Binod Chaudhary (the deceased) and co-villager Sunil Kumar Chaudhary. They injured the deceased with the use of fire-arms. They also fired at Sunil Kumar Chaudhary who luckily escaped the assault. There were three other persons, who could not be identified by the informant. All of them were assaulting the informant’s uncle Binod Chaudhary (the deceased) and co-villager Sunil Kumar Chaudhary. They injured the deceased with the use of fire-arms. They also fired at Sunil Kumar Chaudhary who luckily escaped the assault. He (the informant) thereafter signalled a TATA Sumo vehicle to stop which was on way towards Muzzafarpur and took the deceased (Binod Chaudhary, the deceased), in the said Sumo vehicle with a co-villager Sunil Kumar Singh (PW-6), to Sadar Hospital, Muzaffarpur. At Sadar Hospital, Muzaffarpur the deceased was declared dead. From Sadar Hospital, Muzaffarpur the dead body of the deceased was brought to Sadar Hospital, Hajipur where his fardbeyan was recorded. The reason behind the occurrence, according to the informant was a land dispute of the deceased with Balram Chaudhary in connection with which Balram Chaudhary was getting support of this appellant. 3. The chargesheet was submitted by the police on completion of investigation against this appellant and co-accused Swetambar Chaudhary on 30.08.2014, while keeping the investigation pending against others. Cognizance was subsequently taken based on the said chargesheet on 23.03.2015. Another chargesheet was submitted on 20.03.2015 against co-accused Randhir Kumar Chaudhary, Sushil Kumar Chaudhary, Ashutosh Kumar Chaudhary and Balram Chaudhary for commission of the offences punishable under Sections 302/34 of the Indian Penal Code and Section 27 of the Arms Act whereupon cognizance was taken on 21.03.2016. The case was committed to the Court of Sessions by two separate orders dated 29.07.2015 and 26.10.2016. It transpires from the records that the charges were framed against this appellant and co-accused Swetambar Chaudhary on 12.12.2018 in Sessions Trial No. 318 of 2015. A separate trial was registered as Sessions Trial No. 431 of 2016 in which charges were framed on 07.12.2016 against co-accused Randhir Kumar Chaudhary, Sushil Chaudhary, Balram Chaudhary, Ashutosh Chaudhary for commission of the offences punishable under Sections 302/34, 307/34 and Section 27 of the Arms Act. The persons charged of the offences as noted above pleaded not guilty and claimed to be tried. Subsequently, by an order dated 04.01.2019 both the trails i.e. Sessions Trial No. 431 of 2016 and Sessions Trial No. 318 of 2015, were amalgamated by an order dated 04.01.2019. 4. At the trial the prosecution examined altogether six witnesses. The persons charged of the offences as noted above pleaded not guilty and claimed to be tried. Subsequently, by an order dated 04.01.2019 both the trails i.e. Sessions Trial No. 431 of 2016 and Sessions Trial No. 318 of 2015, were amalgamated by an order dated 04.01.2019. 4. At the trial the prosecution examined altogether six witnesses. Nand Kishore Chaudhary (PW-1) and Parmanand Chaudhary (PW-2) did not support the prosecution’s case in any manner and accordingly they came to be declared hostile at the instance of the prosecution. From the evidence of Nutan Singh (PW-3), it is evident that she is a hearsay witness. The Doctor, who had conducted the postmortem examination deposed as PW-4 whereas the informant as PW-5. Sunil Kumar Singh (PW6) fully supported the prosecution’s case of the deceased having been killed by this appellant and other co-accused persons, who acted with him in furtherance of a common intention to kill the deceased. It is relevant to notice at this juncture that the Investigating Officer, was not examined and the inquest report has not been proved. Dr. Vijay Kumar (PW-4) proved the following antemortem injuries in his deposition at the trial:- “(i) Eyes open, face pale. (ii) Lacerated wound on right groin 3/4" C.M. diameter margin charred, oval in shape (lacerated wound) (iii) Lacerated wound on right wrist about 1 inch X 1/4" X 1/4" (iv) Lacerated wound on right media of thigh about 3/4"C.M. in diameter margin charred, oval in shape. In para no. 3, On dissection": Skull-bones intact on line brain and meninges intact and pale. Neck- Neck intact, vessels intact and pale, trechea and oesophagus intact. Chest Thorancik cage normal both plems and lungs intact and pale Heart-Heart intact all chamber of heart empty. Abdomen-Haemoperitone supported abdominal mortis: A metalic object resembling bullet recovered from posterior abdominal wall. In para no. 4, Cause of death is shock and haemorrhage and the weapon used is fire arm. Time elapsed since death is within 24 hours from postmortem examination.” 5. The trial court, after having appreciated the evidence adduced at the trial acquitted co-accused Swetambar Chaudhary, Randhir Chaudhary, Ashutosh Kumar Chaudhary, Baliram Chaudhary and Sushil Kumar Chaudhary giving them the benefit of doubt. 4, Cause of death is shock and haemorrhage and the weapon used is fire arm. Time elapsed since death is within 24 hours from postmortem examination.” 5. The trial court, after having appreciated the evidence adduced at the trial acquitted co-accused Swetambar Chaudhary, Randhir Chaudhary, Ashutosh Kumar Chaudhary, Baliram Chaudhary and Sushil Kumar Chaudhary giving them the benefit of doubt. The trial court, however, reached a conclusion that the prosecution was able to establish the charges against this appellant for commission of offences punishable under Section 302 of the Indian Penal Code and Section 27 of the Arms Act beyond all reasonable doubts. Accordingly, after having convicted the appellant of the aforesaid charges by the impugned judgment, the trial court has sentenced him to imprisonment and fine as noted above. 6. Mr. Ajay Kumar Thakur, learned counsel appearing on behalf of the appellant has submitted that in the present case even the informant has not fully supported the prosecution’s case though in his fardbeyan he had claimed himself to be an eye witness to the occurrence. He submits that the informant PW-5 in his deposition, while being cross-examined, has clearly stated in paragraph no. 4 that when he had reached the place of occurrence, his uncle, the deceased, was lying unconscious and had seen the persons fleeing away who were at a distance of nearly 500 meters away from the place of occurrence. He also deposed that based on rumors which he had heard, he had mentioned the names of the accused persons in his fardbeyan. He has further submitted that on the point of place of occurrence, the evidence of PW-5 and PW-6 are mutually destructive. According to PW-5, the occurrence had taken place at 08:00 A.M. at the line hotel of Ranjeet Singh, when he had heard the sound of firing. The PW-6 in his deposition claimed to be accompanying the deceased at the time of occurrence has given another description of the place of occurrence i.e. near the hotel of Arbind Rai, which was non-functional for quite sometime. He has further submitted that in the present case, the inquest report has not been proved and there being contradictory evidence of PWs 5 and 6 on the point of place of occurrence, the examination of I.O., was important for the prosecution. He has further submitted that in the present case, the inquest report has not been proved and there being contradictory evidence of PWs 5 and 6 on the point of place of occurrence, the examination of I.O., was important for the prosecution. Non-examination of I.O., he submits, has seriously prejudiced the case of the defense for more than one reasons. Firstly, the contradictions could not be taken from the witnesses with respect to their statements recorded by the I.O., during the course of investigation vis-a-vis their depositions at the trial. Secondly, the place of occurrence cannot be said to have been proved. He has also submitted that though PW-6 deposed at the trial that the blood samples and spent cartridges were recovered from the place of occurrence and seizure list was prepared in his presence by a Forensic Team at the place of occurrence, neither seizure list has been exhibited at the trial nor any forensic report is available on record to establish the prosecution’s case to prove the place of occurrence. Referring to evidence of PW-6, he contends that according to him the deceased was taken to Muzaffarpur Sadar Hospital, after the occurrence where he was declared dead and from Muzaffarpur Sadar Hospital, the dead body was brought back to the village of the deceased and from there the dead body was taken to the Sadar Hospital, Hajipur. He submits that the said deposition is inconsistent with the description of the chain of events disclosed in the fardbeyan. According to the fardbeyan, after the deceased was declared dead at Muzaffarpur Sadar Hospital, the dead body was brought to Sadar Hospital, Hajipur and the fardbeyan was recorded in the postmortem house of Hajipur Sadar Hospital. Contrary to this, PW-6 deposed that the dead body of the deceased was brought in an ambulance to the village, from Muzaffarpur Sadar Hospital, whereafter PW-6 and others had gone with the police to Hajipur Sadar Hospital, whereafter the fardbeyan was recorded in his presence and he had put his signature on the fardbeyan as a witness. He submits that if it be true, there is no explanation as to why the fardbeyan was not recorded in the village itself. He submits that if it be true, there is no explanation as to why the fardbeyan was not recorded in the village itself. He submits that it is also evident from the deposition of PW-6 that he was made an accused in relation to a case relating to fire-arm injury sustained by one Jay Prakash Rai, in respect of which he deposed that in fact this appellant and his accomplice had injured said Jay Prakash Rai. He contends that it appears that by giving evidence to the aforesaid effect, PW-6 has attempted to develop a plea of alibi to be taken in relation to the occurrence in which Jay Prakash Rai had sustained injuries. He has also submitted that according to PW-6 he was accompanying the deceased at the time of occurrence as if they were closely associated with each other. On the contrary, it will appear from his evidence in cross-examination that he admitted that he and his father were convicted in a criminal case and sentenced to life imprisonment in which the father of the deceased of this case had deposed against them. He has also submitted that it will appear from the pattern of cross-examination of PW-6 on behalf of defence that several attempts were made by the defence to obtain contradictions. However, in the absence of the Investigating Officer, the contradictions could not be obtained. He has also argued that the postmortem report does not fully corroborate the deposition of PW-6, who does not appear to be a trustworthy witness. He submits that the trial court, on the same set of evidence has acquitted other persons put on trial by giving them benefit of doubt and has convicted this appellant on the sole basis that according to the prosecution’s case he was the main assailant. He has submitted further that once the trial court doubted the evidence of the prosecution in relation to charges against other co-accused persons, there was no reason why such benefit ought not to have been given in case of the appellant also. 7. Mr. He has submitted further that once the trial court doubted the evidence of the prosecution in relation to charges against other co-accused persons, there was no reason why such benefit ought not to have been given in case of the appellant also. 7. Mr. Sujeet Kumar Singh, learned Additional Public Prosecutor representing the State of Bihar, defending the findings recorded by the trial court has submitted that minor contradictions are inconsequential in the present set of facts and circumstances and the trial court, after having noticed the evidence adduced at the trial against the appellant of having shot at the deceased, rightly held him guilty of the offences punishable under Section 302 of the Indian Penal Code and Section 27 of the Arms Act. He has further submitted that non-examination of I.O., in the present case cannot be said to have prejudiced the case of the defense as PW-6 has fully supported the prosecution’s case as an eye-witness, whose deposition is duly corroborated by the medical evidence. 8. We have perused the impugned judgment of the trial court as well as the trial court’s records. We have given our thoughtful consideration to the rival submissions advanced on behalf of the parties. It is manifest that two (PW-1 and PW-2), out of six witnesses, have been declared hostile as they did not support the prosecution’s case. PW-3 is a hearsay witness. 9. The deposition of PW-3 as a hearsay witness, has no evidentiary value. Further, it has been rightly submitted by Mr. Thakur, learned counsel for the appellant that informant (PW 5) cannot be treated to be an eye witness in view of his deposition in paragraph no. 4, wherein, he has clearly stated that he had named this appellant and others in the fardbeyan on the basis of the rumours which he had heard. He had seen the deceased lying unconscious when the miscreants were fleeing away and they were at a distance of about 500 meters from the place of occurrence, when he had seen them. 10. In our considered opinion, nothing can be culled out from the evidence of PW-5 to say that the same relates to the culpability of this appellant. We are now left with the evidence of PW-6 alone, who claimed to be accompanying the deceased at the time of occurrence. 10. In our considered opinion, nothing can be culled out from the evidence of PW-5 to say that the same relates to the culpability of this appellant. We are now left with the evidence of PW-6 alone, who claimed to be accompanying the deceased at the time of occurrence. It is significant to note that though PW-6 is a witness to recording of the fardbeyan, the fardbeyan does not disclose that PW-6 was accompanying the deceased. In the fardbeyan the informant mentioned that the deceased was accompanied by one Sunil Kumar Chaudhary and not Sunil Kumar Singh (PW-6). It is worthwhile mentioning at this juncture that as regards Sunil Kumar Chaudhary, it is mentioned in the fardbeyan that he was accompanying the deceased at the time of occurrence and in respect of Sunil Kumar Singh, it is mentioned in the fardbeyan that he was the person with whom the informant had taken the deceased from the place of occurrence to Muzaffarpur, Sadar Hospital. In any event, we do not find any evidence to suggest that Sunil Kumar Chaudhary and Sunil Kumar Singh (PW-6) as mentioned in the fardbeyan are the names of one and the same person, who deposed at the trial as PW-6. Further, according to PW-6, after the deceased was injured by the accused persons using fire-arms, there were two other persons viz Bipat Rai @ Bipat Gope and Prabhu Ram present at the place of occurrence, who had fled away. Bipat Rai, in the present trial has deposed as DW-1 stating that as on the date of occurrence he was in Delhi and was not present at the place of occurrence. 11. To sum up, we find in the present case that the inquest report has not been proved at the trial. The I.O., has not been examined and we are of the view that the appellant has been able to make out a case before this Court that the defense got prejudiced because of non-examination of I.O., as the contradictions could not be obtained. Thirdly, the prosecution failed to prove the place of occurrence. The I.O., has not been examined and we are of the view that the appellant has been able to make out a case before this Court that the defense got prejudiced because of non-examination of I.O., as the contradictions could not be obtained. Thirdly, the prosecution failed to prove the place of occurrence. Further, if the evidence of PW-6 is to be believed then the entire prosecution’s case becomes doubtful for the failure on the part of the police to record the fardbeyan of the informant in the village, where according to PW-6 the dead body of the deceased was brought from Muzaffarpur Sadar Hospital and from the village the dead body was taken to Hajipur Sadar Hospital. Taking into account cumulative effect of all the facts and circumstances as noted above, we are of the view that it would be unsafe for this Court to uphold the finding of conviction recorded by the trial court for the offences punishable under Section 302 of the Indian Penal Code and Section 27 of the Arms Act. The appellant deserves to be acquitted of the aforesaid charges by giving him benefit of doubt. 12. Accordingly, the impugned judgment of conviction the impugned judgment of conviction dated 12.12.2019 and the order of sentence dated 17.12.2019 passed by the learned Additional Sessions Judge-III, Vaishali at Hajipur in Sessions Trial No. 318 of 2015 arising out Bhagwanpur P.S. Case No. 183 of 2013, are set aside. 13. This appeal is allowed. 14. The appellant is in custody. Let him be released from the jail forthwith, if not required in any other case.