JUDGMENT : Nawneet Kumar Pandey, J. This appeal has been preferred under Sections 374 (2) of the Code of Criminal Procedure for setting aside the judgment dated 04.01.2019 and the order of sentence dated 10.01.2019 passed by the learned Additional District and Sessions Judge-I, Patna City in S.Tr. No. 1031 of 2014, arising out of Bye-Pass P.S. Case No. 18 of 2012, whereby the appellants have been convicted and sentenced as under:- Criminal Appeal (DB) No. 238 of 2019 Appellant Name Conviction under Section Sentence Imprisonment Fine (Rs.) In default of fine Mukesh Singh 302 of the IPC For Life 20,000/- SI for 1 year 148 of the IPC R.I. for two years – -- 27(i) of the Arms Act R.I. for 3 years 2,000/- SI for 3 months Criminal Appeal (DB) No. 108 of 2019 Appellant Name Conviction under Section Sentence Imprisonment Fine (Rs.) In default of fine Ramesh Pd. Singh @ Ramesh Singh 302 of the IPC For Life 20,000/- SI for 1 year 148 of the IPC R.I. for two years – -- Tunnu Singh @ Mithlesh Singh 148 of the IPC R.I. for two years – -- Criminal Appeal (DB) No. 130 of 2019 Appellant Name Conviction under Section Sentence Imprisonment Fine (Rs.) In default of fine Amarnath Singh 302 of the IPC For Life 20,000/- SI for 1 year 148 of the IPC R.I. for two years – -- Criminal Appeal (DB) No. 191 of 2019 Appellant Name Conviction under Section Sentence Imprisonment Fine (Rs.) In default of fine Bhushn Singh @ Bhushan Singh 302 of the IPC For Life 20,000/- SI for 1 year 148 of the IPC R.I. for two years – -- Dinesh Singh 302 of the IPC For Life 20,000/- SI for 1 year 148 of the IPC R.I. for two years – -- Criminal Appeal (DB) No. 254 of 2019 Appellant Name Conviction under Section Sentence Imprisonment Fine (Rs.) In default of fine Karmu Singh 302 of the IPC For Life 20,000/- SI for 1 year 148 of the IPC R.I. for two years – -- 2. All the sentences have been ordered to run concurrently. 3. The Fardbeyan of informant Dina Nath Singh (PW 4) was recorded in P.M.C.H., Patna on 10.03.2012 at about 12:30 A.M. (night). All the sentences have been ordered to run concurrently. 3. The Fardbeyan of informant Dina Nath Singh (PW 4) was recorded in P.M.C.H., Patna on 10.03.2012 at about 12:30 A.M. (night). He has stated in his Fardbeyan that in previous night (09.03.2012) at about 9:30 P.M., the informant was returning to his house after participating in Holi celebrations and his younger brother Ajit Kumar aged about 30 years (deceased) was also with him. As soon as, the informant and his brother reached near the house of appellant Dinesh Singh, seven F.I.R. named persons who are appellants herein, viz., Mukesh Singh, Dinesh Singh, Tunnu Singh, Bhushan Singh, Karmu Singh and Amarnath Singh, equipped with pistol, iron rod, Farsa, Lathi, stick etc., encircled them. They dragged them away to their house. The appellant Mukesh Singh ordered other accused persons to kill the informant and his younger brother. Thereafter, appellant Mukesh Singh himself fired on Ajit Kumar which hit in his head. Ajit Kumar fell down on the ground and the blood started oozing. Again appellant Mukesh Singh fired at the informant, but he escaped luckily. Thereafter, the appellants Ramesh Singh, Bhushan Singh, Tunnu Singh, Karmu Singh and Amarnath Singh, who were equipped with Lathi, stick, iron rod, Farsa etc., started assaulting the informant, who became injured. On the outcry made by the informant, the villagers assembled. As Ajit Kumar was badly injured, so he was hurriedly brought to P.M.C.H., Patna. The reason for the incident has been stated in the Fardbeyan that two days prior to the occurrence, appellant Mukesh Singh was abusing the family members of the informant and on protest made by the family members of the informant, he had threatened them of dire consequences. 4. On the basis of the Fardbeyan, the formal FIR was registered on 10.03.2012 at about 04:15 P.M. under Sections 341, 323, 326, 307 and 504/34 of the Indian Penal Code and 27 of the Arms Act. 5. Ajit Kumar died in course of treatment on 14.03.2012 and Section 302 of the Indian Penal Code was added in the FIR, vide order dated 15.03.2012. The investigation was carried out. After investigation, the charge-sheet was submitted. Accordingly, cognizance was taken by the learned Magistrate under the above-mentioned Sections of the Indian Penal Code and Arms Act. After compliance of the requirements under Section 207 of the Cr.PC, the case was committed to the court of Sessions. The investigation was carried out. After investigation, the charge-sheet was submitted. Accordingly, cognizance was taken by the learned Magistrate under the above-mentioned Sections of the Indian Penal Code and Arms Act. After compliance of the requirements under Section 207 of the Cr.PC, the case was committed to the court of Sessions. The charges were framed against the appellants on 08.10.2015 under Sections 302/149, 307/149, 147, 148 and 346 of the Indian Penal Code and against appellant Mukesh Singh, the charge under Section 27 (1) of the Arms Act was also framed. The accused persons pleaded not guilty and claimed to be tried. Thereafter, the trial proceeded. During the course of trial, the prosecution examined altogether seven witnesses, including Dr. Rajeev Ranjan Das (PW 6), who has conducted the post-mortem on the dead body of the deceased and the Investigating Officer Ashtam Paswan (PW 7). The following documentary evidences have been exhibited in this case. Exhibit-1 FIR Exhibit-2 Post-mortem Report Exhibit-3 Fardbeyan Exhibit-4 Endorsement on Fardbeyan Exhibit-5 Formal F.I.R. 6. After closure of the prosecution’s evidence, the appellants were questioned by the trial court under Section 313 of the Cr.PC for the purpose of enabling them to explain the incriminating circumstances, which appeared against them in evidence. The appellants pleaded their complete innocence and answered those questions in negative. 7. The defense has also examined four witnesses. The informant Dina Nath Singh, who claims himself to be injured, has been examined as PW 4. He has stated in his deposition that on 09.03.2012 at about 9:30 P.M., he alongwith his brother Ajit Singh (deceased) was returning to his house after participating in Holi. When they reached near the house of Dinesh Singh, the appellants Dinesh Singh, Mukesh Singh, Ramesh Singh, Tunnu Bhushan Singh, Karmu Singh and Amarnath Singh altogether seven accused persons started abusing them and they dragged them inside their house and started assaulting them. Appellant Mukesh Singh fired at Ajit Singh, which hit in his head. His brother fell down on the ground in a pool of blood. Appellants Dinesh Singh, Ramesh Singh, Tunnu Singh, Bhushan Singh, Karmu Singh and Amarnath Singh also assaulted him with Lathi, Danda and iron rod. Appellant Mukesh Singh also fired on the informant, but he did not suffer firearm injury. When the villagers assembled, the accused persons fled away. The informant and his brother were treated at P.M.C.H.. Appellants Dinesh Singh, Ramesh Singh, Tunnu Singh, Bhushan Singh, Karmu Singh and Amarnath Singh also assaulted him with Lathi, Danda and iron rod. Appellant Mukesh Singh also fired on the informant, but he did not suffer firearm injury. When the villagers assembled, the accused persons fled away. The informant and his brother were treated at P.M.C.H.. This witness has also stated further that two days prior to the occurrence, appellants Mukesh Singh, Ramesh Singh, Dinesh Singh, Tunnu Singh and Bhushan Singh were abusing his family members and on protest, the occurrence had taken place. He has also stated that his Fardbeyan was recorded in P.M.C.H. and he identified his signature, which is exhibit-1. He has stated next that as the condition of his brother was very serious, he was shifted to Ishwar Dayal Hospital where he died on 14.03.2012. In that hospital also, after death of the deceased, the Fardbeyan of this witness was recorded, but it was not before the informant while his deposition was recorded. This witness identified the accused persons, who were present in the dock at the time of recording of his statement. During the cross-examination, the witness has stated that Ajit Kumar was wearing pant and shirt at the time of occurrence. This witness could not remember whether those shirt and pant were handed over to the Investigating Officer. 8. PW 1 is Ram Mohan Rai @ Bablu Kumar, who is cousin of the informant. At the time of occurrence, this witness was walking on his roof after taking meals. On hearing hue and cry, he went there and saw that appellants Ramesh Singh, Dinesh Singh, Bhushan Singh and his associates Karmu Singh and Amarnath Singh were dragging Ajit Kumar towards their house. Appellant Mukesh Singh came there with pistol and fired at Ajit Kumar, who fell down on the ground and the blood started oozing. Mukesh Singh fired from behind which hit the brain of the deceased. He also fired at Dina Nath Jee (informant), but he escaped. Appellant Mukesh Singh came there with pistol and fired at Ajit Kumar, who fell down on the ground and the blood started oozing. Mukesh Singh fired from behind which hit the brain of the deceased. He also fired at Dina Nath Jee (informant), but he escaped. Ajit Kumar was shifted to P.M.C.H. but for better treatment, he was brought to Ishwar Dayal Memorial Hospital where he died during the course of treatment after four days in I.C.U. During his cross-examination, this witness has stated that due to dragging, some abrasions were there in the foot of the deceased, but this witness did not notice any injury in ankle and knee of the deceased. He has stated further that it was a moonlit night and the electric light was also there. 9. PW 2 is Arbindar Singh @ Arbind Singh. He is uncle of the informant. On hearing the sound of firing, this witness reached near the house of Vijay Singh and he saw Ajit Kumar in a pool of blood. He saw the accused persons assaulting the informant. Appellant Mukesh Singh was carrying pistol, Dinesh Singh (iron rod), Ramesh Singh (stick), Tunnu Singh (Farsa), Bhushan Singh, Karmu Singh and Amarnath Singh were also with the accused persons, who were assaulting the informant. Appellant Mukesh Singh again fired and thereafter, accused persons fled away. The villagers, including Suresh Singh who is uncle of the deceased, also came there and they brought Ajit Kumar in P.M.C.H., Patna, but he died after 3-4 days. This witness has also stated that two days prior to the occurrence, there was a quarrel between the accused persons on one side and Dina Singh and Ajit Kumar on the other side. During his cross-examination, this witness stated that during his statement under Section 161 of the Cr.PC, he did not state before the I.O. that on the date of occurrence he was in his house and he had rushed to the place of occurrence after hearing the sound of firearm. This witness has stated that the accused persons were assaulting Dina Nath Singh. He has stated further that Mithilesh Singh was equipped with Farsa, but this witness did not see him assaulting the informant with Farsa. Appellant Ramesh Singh was carrying stick (Danda), but this witness did not see assaulting him. This witness has stated that the accused persons were assaulting Dina Nath Singh. He has stated further that Mithilesh Singh was equipped with Farsa, but this witness did not see him assaulting the informant with Farsa. Appellant Ramesh Singh was carrying stick (Danda), but this witness did not see assaulting him. Similarly, appellant Dinesh Singh was equipped with iron rod, but this witness did not see him assaulting anybody. He has stated further that he saw the appellants Bhushan Singh, Amarnath Singh and Karmu Singh assaulting the informant. 10. PW 3, Suresh Singh, is distantly related as uncle of the informant in the village. This witness has stated that on 09.03.2012, he went to the place of occurrence on hearing hue and cry and saw there the presence of the appellants Dinesh Singh, Ramesh Singh, Mukesh Singh, Tunnu Singh, Bhushan Singh, Karmu Singh and Amarnath Singh. Dinesh Singh was equipped with iron rod, Ramesh Singh with Lathi, Tunnu Singh with Farsa and the rest appellants were empty handed. This witness saw that the appellants were dragging Ajit Singh. Meanwhile, appellant Dinesh Singh ordered the appellant Mukesh Singh to kill Ajit Singh, whereupon Mukesh Singh fired on Ajit Singh with his pistol, which hit in the head of Ajit Singh and the blood started oozing. He has stated further that Vijay Singh ordered to fire on the persons, who were present there, whereupon this witness fled away. Later on, he heard that Ajit Singh had died in Ishwar Dayal Hospital on 14.03.2012. During his cross-examination, this witness has stated that he did not state before the Investigating Officer that he had gone to the place of occurrence on hearing hue and cry. He also did not state that he had seen the appellant Mukesh Singh equipped with pistol. He also did not state before the I.O. that the accused persons were assaulting Dina Nath Singh (the informant). He also did not state that Ajit Singh was lying there in a pool of blood. In paragraph no. 10, this witness has stated that the accused persons fired at Ajit Singh near Darwaja of Vijay. 11. The deposition of PW 5 is not of much relevance, as he expressed his complete ignorance about the occurrence and he has denied to have rendered his statement before the investigating authorities. At the instance of prosecution, this witness has been declared hostile. 12. 11. The deposition of PW 5 is not of much relevance, as he expressed his complete ignorance about the occurrence and he has denied to have rendered his statement before the investigating authorities. At the instance of prosecution, this witness has been declared hostile. 12. PW 6 is Dr. Rajiv Ranjan Das, who conducted the post-mortem on the dead body. This witness found following antemortem injuries on the dead body fter performing post-mortem examination. “(I) (22 stitches) 9 1/2”x1/2”xCavity deep left parital part of scalp near mid-line (2 stitches) and extending towards left, parital scalp I a curved line the wound was like pictorial representation in P.M. report under neath there was missing bone (parital) beyond the stitched area with few pieces of bone embedded in brain matter. There was defused large clots under near scalp with lacerating brain matter on either side and presence of blood & blood clots cranial cavity. (II)Stitched wound-) 7 stitches 3/4X1/2”x bone deep on left lateral part of upper part of thigh on removing the stitches, there was contusion of subcutaneous tissues and muscle underneath of blood or blood clots. (III) On removing the cotton bandage of chest black prick marks were seen, injection mark, (IV) Abrasion 4 1/2”x1/2” on frontal portion of scalp transverse move to left side. (V) All viscera were pale, bladder was empty, stomach contained no food scanty liquid. Further doctor has stated that the above noted stitches wound were caused by surgical intervention and abrasion by hard & blunt substance. Death was due to shock and intercornical hemorrhage. Time of death-has within 3 to 12 hours from the date of P.M. examination and he has proved Ext.3 - P.M.Report.” 13. PW 7 is the Investigating Officer. He has stated that he recorded the Fardbeyan of the informant in PMCH and read it over to the informant. As per statement of this witness, the place of occurrence is a Sahan land and a small pathway situated in front of the house of appellant Dinesh Singh and the informant Dinanath Singh. He recorded the statement of the witnesses under Section 161 of the Cr.PC. He has stated further that after death of Ajit Singh in Ishwar Dayal Hospital, the Fardbeyan of Dinesh Singh was again recorded by A.S.I. Jafrullah Khan, who was posted in Bypass Police Station at that time. This witness has mentioned this fact in his diary. He recorded the statement of the witnesses under Section 161 of the Cr.PC. He has stated further that after death of Ajit Singh in Ishwar Dayal Hospital, the Fardbeyan of Dinesh Singh was again recorded by A.S.I. Jafrullah Khan, who was posted in Bypass Police Station at that time. This witness has mentioned this fact in his diary. The inquest report was prepared by Jafrullah Khan. He has stated that after death of the deceased, Section 302 of the IPC was added in the F.I.R. on 15.03.2012. After completion of the investigation, this witness submitted charge-sheet against the appellants. During his cross-examination, this witness has stated that he did not find the blood stained at the place of occurrence. 14. Four witnesses have also been examined on behalf of the defense. DW 1 is Sita Ram, who is co-villager. This witness has stated that the prosecution story that the accused persons had assaulted the informant and his brother Ajit Singh is entirely false. He has stated further that the informant has falsely implicated Mukesh Singh and other accused persons. This witness has also stated that he is not aware of the fact about the cause of death of deceased Ajit Singh whether had he died from aliments or someone killed him? DW 2 Chandradeo Singh, DW 3 Manu Singh and DW 4 Ram Swaroop Singh have also stated that the entire allegations are false. No such occurrence, as alleged by the prosecution, has taken place in the village. 15. The learned counsels, Mr. Dhirendra Kumar Sinha, Mr. Yashpal Yadav, Mr. Jitendra Kumar, Ms. Soni Kumari and Mr. Vijay Kumar Sinha, appearing on behalf of the appellants, have submitted as under:- (i) The allegations levelled against the appellants that they assaulted the informant with Lathi, Danda and iron rod is not proved as there is no medical evidence in this respect at all. (ii) The second submissions of the learned counsels for the appellants is that though the witnesses, examined on behalf of the prosecution, have stated that appellant Mukesh Singh fired at the deceased Ajit Singh, who suffered firearm injury in his head, resulting into his death, but the medical evidence does not support the ocular evidence. The Doctor (PW 6), who conducted the post-mortem, did not find injury caused by firearm, rather he found stitched wounds, which were caused surgical intervention and abrasion by hard and blunt substance. The Doctor (PW 6), who conducted the post-mortem, did not find injury caused by firearm, rather he found stitched wounds, which were caused surgical intervention and abrasion by hard and blunt substance. The death was due to inter cornical hemorrhage. The doctor of P.M.C.H., who treated the deceased first, was not produced by the prosecution. As such, it cannot be inferred that the injury, uffered by the deceased, was caused by firearm. (iii) The third submission of the learned counsels for the appellants is that there is contradiction between the depositions of the witnesses in respect of place of occurrence, which makes the prosecution case doubtful. Some witnesses have stated that the occurrence had taken place inside the house of the appellant, Dinesh Singh but some says inside the house of Vijay Singh and the Investigating Officer (PW 7) has mentioned that the place of occurrence was Sahan land and pathway situated in front of the house of appellant Dinesh Singh and the informant Dina Nath Singh. (iv) Fourth submission of the learned counsels for the appellants is that the motive for incident is said to be the quarrel between the parties which had taken place two days prior to the occurrence, but that incident has not been proved, as no First Information Report or any kind of Sanha was lodged by the prosecution in that respect. As such, the motive for the present incident has not been proved. 16. Per contra, the learned Additional Public Prosecutors appearing on behalf of the State have submitted that the accused persons (the appellants) badly assaulted the informant and his brother Ajit Singh, who suffered injuries. Ajit Singh died in course of treatment. There is specific allegation against appellant Mukesh Singh that he fired shot at the head of Ajit Singh, who died in course of treatment. The contradictions, pointed out by the defense, are not materials and those contradictions do not go to the root of the matter. The eye-witnesses are unanimous and their testimony is unimpeachable and above broad. 17. We have heard the rival submissions of the appellants as well as the State and carefully perused the Lower Court’s Records. The witnesses, including the eye witnesses as well as the informant, have stated during their depositions that the appellants stopped them while they were coming after participation in Holi ceremony. 17. We have heard the rival submissions of the appellants as well as the State and carefully perused the Lower Court’s Records. The witnesses, including the eye witnesses as well as the informant, have stated during their depositions that the appellants stopped them while they were coming after participation in Holi ceremony. They dragged away the informant and Ajit Singh, the brother of the informant, at the place of occurrence and appellant Mukesh Singh fired shot at Ajit Singh, who died in Ishwar Dayal Hospital in course of treatment. Before treatment in Ishwar Dayal Hospital, he was admitted in P.M.C.H. and when his condition remained deteriorating, he was brought in Ishwar Dayal Hospital where he died. None of the witnesses, examined on behalf of the prosecution, has stated that expect appellant Mukesh Singh, other appellants or any of them had assaulted the deceased, whereas they were equipped with Lathi, Danda, iron rod etc. The only allegation to fire on the deceased is against appellant Mukesh Singh. The allegation against other appellants is that they assaulted the informant Dina Nath Singh with Lathi, Danda, iron rod etc. The Doctor, who initially treated the deceased, was not examined and the Doctor, who conducted the post-mortem on the dead body of the decased, did not find firearm injury. The injuries found by him were caused by hard and blunt substance and those were stitched wounds. As such, the ocular evidence does not corroborate the medical evidence which makes the prosecution case doubtful. The witnesses have stated that other appellants except Mukesh Singh were variously armed with Farsa, Lathi, Danda, iron rod etc. and they assaulted the informant Dina Nath Singh, but there is no injury report at the record showing that the informant Dina Nath Singh had suffered any kind of injury. As such, this fact has also not been proved by the prosecution, which makes the prosecution case as doubtful. 18. So far as third submission of the learned counsel for the appellants is concerned, we are in fully agreement with the submissions made by the appellants. The informant in his Fardbeyan has stated that the place of occurrence was inside the house of the appellant Dinesh Singh. He has reiterated this version in his deposition in the trial court. 18. So far as third submission of the learned counsel for the appellants is concerned, we are in fully agreement with the submissions made by the appellants. The informant in his Fardbeyan has stated that the place of occurrence was inside the house of the appellant Dinesh Singh. He has reiterated this version in his deposition in the trial court. PW 1, Ram Mohan Rai @ Bablu Kumar, has stated that he saw the appellants Ramesh Singh, Dinesh Singh, Bhushan Singh and his associates Karmu Singh and Amarnath Singh, who were dragging Ajit Singh towards their house. Appellant Mukesh Singh fired shot at Ajit Singh. PW 2, Arbindar Singh @ Arbind Singh, has stated that he saw Ajit Singh in pool of blood near the house of Vijay Singh. This witness has stated that when he reached near the house of Vijay Singh, he saw the appellants equipped with various arms dragging Ajit Singh and Mukesh Singh fired shot on him. The Investigating Officer has mentioned that the place of occurrence is in front of the house of appellant Dinesh Singh and the informant Dina Nath Singh. From bare perusal of the statement of the prosecution witnesses it appears that they are not unanimous in respect of place of occurrence, which creates doubts and the benefit goes in favour of the appellants. As per prosecution’s case the genesis of occurrence is that two days prior to the occurrence there was quarrel between the parties and it was the motive for the present incident but no FIR, complaint or Sanha has been lodged on behalf of the prosecution in this regard. As such, the motive giving rise to the present incident has not been proved. 19. On the basis of above-mentioned observations, the impugned judgment dated 04.01.2019 and the order of sentence dated 10.01.2019 passed by the learned Additional District and Sessions Judge-I, Patna City in S.Tr. No.1031 of 2014, arising out of Bye-Pass P.S. Case No. 18 of 2012 are set aside. 20. These appeals are allowed. 21. The appellants, namely, Ramesh Pd. Singh @ Ramesh Singh and Tunnu Singh @ Mithilesh Singh of Cr. Appeal (DB) No. 108 of 2019, the appellants, namely, Bhushn Singh @ Bhushan Singh and Dinesh Singh of Cr. Appeal (DB) No. 191 of 2019, appellant Amarnath Singh of Cr. Appeal (DB) No. 130 of 2019 and appellant Karmu Singh of Cr. 21. The appellants, namely, Ramesh Pd. Singh @ Ramesh Singh and Tunnu Singh @ Mithilesh Singh of Cr. Appeal (DB) No. 108 of 2019, the appellants, namely, Bhushn Singh @ Bhushan Singh and Dinesh Singh of Cr. Appeal (DB) No. 191 of 2019, appellant Amarnath Singh of Cr. Appeal (DB) No. 130 of 2019 and appellant Karmu Singh of Cr. Appeal (DB) No. 254 of 2019 are on bail. They are discharged from the liability of the bail bonds and sureties, if any. 22. The appellant, namely, Mukesh Singh in Cr. Appeal (DB) No. 238 of 2019, is in custody. Let him be released from jail forthwith, if not required in any other case. Chakradhari Sharan Singh, J - I agree