JUDGMENT : (ASHUTOSH KUMAR, J.) Heard the learned counsel for the parties. 2. The sole appellant/Baij Nath Singh @ Shyam Nandan Sharma has been convicted for the offences under Sections 341, 326/120(B), 307/120(B) and 302/120(B) of the Indian Penal Code (in short the IPC) and Section 27 of the Arms Act vide judgment dated 06.04.2022 passed by the learned Addtional Sessions Judge-III, Lakhisarai in Sessions Trial No. 88 of 2019 (CIS-1599/2019 and G.R. No. 1086/2009, arising out of Lakhisarai P.S. Case No. 511 of 2009. By order dated 13.04.2022, he has been sentenced to undergo imprisonment for life, to pay a fine of Rs. 20,000/- and in default of payment of fine, to further suffer R.I. for six months for the offence under Section 302/120(B) of the IPC; to undergo R.I. for ten years, to pay a fine of Rs. 10,000/- and in default of payment of fine, to further suffer R.I. for six months for the offence under Section 307/120(B) of the IPC; to undergo R.I. for five years, to pay a fine of Rs. 5,000/- and in default of payment of fine, to further suffer R.I. for six months for the offence under Section 326/120(B) of the IPC; to undergo S.I. for one month, to pay a fine of Rs. 500/- and in default of payment of fine, to further suffer S.I. for a further period of fifteen days for the offence under Section 341 of the IPC and to undergo R.I. for five years, to pay a fine of Rs. 10,000/- and in default of payment of fine, to further suffer R.I. for a period of six months for the offence under Section 27 of the Arms Act. 3. All the sentences have been ordered to run concurrently. 4. One Shailesh Kumar Singh @ Shailesh Singh is said to have been killed at the hands of the appellant and others while he was traveling with his elder brother, viz., Arun Singh, who is the informant of this case. 5. Arun Singh (P.W. 1) lodged a fardbeyan which was recorded by Sub-Inspector/Rama Shankar Singh (P.W. 10) of Lakhisarai Town Police Station on 06.10.2009 at 07:10 A.M. in the clinic of one Dr. Himkar in Lakhisarai with respect to the occurrence. 5. Arun Singh (P.W. 1) lodged a fardbeyan which was recorded by Sub-Inspector/Rama Shankar Singh (P.W. 10) of Lakhisarai Town Police Station on 06.10.2009 at 07:10 A.M. in the clinic of one Dr. Himkar in Lakhisarai with respect to the occurrence. He has alleged that on the same day, he had proceeded to the sand collection site at about 06:30 in the morning along with his younger brother (deceased) in his Bolero vehicle. No sooner had the vehicle reached somewhat east of Vidyapeeth Chowk, he saw Dhillon Singh; the appellant; Anil Singh and the two sons of Anil Singh, whose name he did not know, standing on the main road. They signalled for stopping the vehicle. As soon as the vehicle was slowed down, the miscreants, including the appellant, started firing as a result of which, he himself and his brother (deceased) got injured. One Harinandan Singh, S/o Devkinandan Singh was also standing along with the accused persons. A vague motive for the crime has been suggested, viz., old enmity with the accused persons. Had people of the neighbourhood not arrived there, perhaps, both the brothers would have been killed. He has also alleged in the F.I.R. that Dhillon Singh and the appellant were carrying rifles in their hands and the other accused persons were armed with pistols. All the accused persons hailed from village-Balipur. 6. On this fardbeyan of P.W. 1, a case vide Lakhisarai P.S. Case No. 511 of 2009, dated 06.10.2009, was registered for investigation under Sections 341, 324, 326, 307 and 120(B) of the IPC and Section 27 of the Arms Act against the appellant and others. 7. It appears from the records that while the deceased was being taken to Ruben Hospital, Patna as Dr. Himkar, referred to above, had refused to treat both, viz., Arun and Shailesh, Shailesh died midway. Arun Singh was treated in Ruben Hospital, Patna for about 08 to 10 days. 8. Section 302 IPC was later added to the list of offences against the appellant and others. 9. There are a few very striking features of this case, which need be noted in the beginning. 10. The autopsy on the dead-body of Shailesh Singh was conducted by Dr. 8. Section 302 IPC was later added to the list of offences against the appellant and others. 9. There are a few very striking features of this case, which need be noted in the beginning. 10. The autopsy on the dead-body of Shailesh Singh was conducted by Dr. Arvind Kumar (P.W. 11) on the same day, i.e., on 06.10.2009 at about 04:30 P.M. This, therefore, establishes that the death would have occurred before 04:30 P.M. One wound of entry below the left nipple with inverted irregular coloured and blackened margin was noticed by P.W. 11. It was opined, therefore, that the death was due to firearm injury. It appears that the bullet had got stuck up in the body, which was extracted during the post-mortem examination and was handed over to the police in a sealed glass container. The assessment regarding time of death was between 03 to 18 hours from the time of the post-mortem examination. Another fact noticed by P.W. 11 was that rigor mortis was present all over the body. 11. The learned Advocate for the appellant, while commenting upon the judgment of the Trial Court, has submitted that the Trial Court completely ignored the fact that the injury suffered by the deceased clearly appeared to have been caused from very close quarters. This was not possible if firing would have been done from outside when the deceased and P.W. 1 were sitting inside the car. The inverted wound with charred and blackened margins clearly indicates shooting from a close range. In this context, the observation of P.W. 11 regarding rigor mortis all over the body assumes importance. 12. It has further been argued that the informant himself (P.W. 1) in his deposition clearly stated that the deceased died by around 06:00 P.M. This obviously is not correct. However not much can be read from this because it may not have been possible for P.W. 1 to have kept a record of the time of death of his brother. Nonetheless, assuming that the occurrence took place sometimes before 07:00 A.M. and the deceased died shortly thereafter, rigor mortis would have developed and would have also started to fade away. If not, then rigor mortis would have been complete by that time. 13. In either case, there is a doubt about ante-timing of the F.I.R. 14. Nonetheless, assuming that the occurrence took place sometimes before 07:00 A.M. and the deceased died shortly thereafter, rigor mortis would have developed and would have also started to fade away. If not, then rigor mortis would have been complete by that time. 13. In either case, there is a doubt about ante-timing of the F.I.R. 14. We have also noticed that despite the claim of P.W. 1 having been injured in his elbow with two gunshots and he having been treated for 08 to 10 days in Ruben Hospital, there is nothing on record to indicate that such treatment was given to him. 15. This completely falsifies the prosecution case. 16. The other argument urged on behalf of the appellant is that the vehicle in which the deceased and P.W. 1 were sitting got badly damaged. The glass panes were completely shattered. This was one of the most material exhibits of the case, which has neither been seized nor produced before the Trial Court. There is nothing on record to indicate as to where was the vehicle, leaving great doubt whether the occurrence had taken place in the manner as suggested by P.W. 1, viz., that while he and the deceased were proceeding towards the sand collection site, the accused persons including the appellant fired indiscriminately. 17. P.W. 1 in his fardbeyan has categorically stated that the appellant was carrying a rifle in his hand. The post-mortem report does not indicate any riflling wound. In fact, the bullet got stuck in the body. 18. Assuming every statement of P.W. 1 to be correct so far as the assault is concerned, the appellant cannot be held to be the assailant of the deceased. 19. Lastly, it has been submitted that there is a motive behind framing the appellant. 20. The son of the appellant was killed sometimes in the past in which Arun Singh (P.W. 1) was made an accused. That killing took place in the year 2006, i.e., about 03 years ago. It, therefore, becomes very clear, it has been argued, that in order to put up a defence, P.W. 1 falsely framed the appellant. 21. Sideways, we need to state that this Court was informed at the Bar that much later after this trial concluded, Arun Singh (P.W. 1) was also murdered. It, therefore, becomes very clear, it has been argued, that in order to put up a defence, P.W. 1 falsely framed the appellant. 21. Sideways, we need to state that this Court was informed at the Bar that much later after this trial concluded, Arun Singh (P.W. 1) was also murdered. The appellant also had absconded for good 10 years and precisely for this reason that he faced separate trial. 22. Now to the deposition of the witnesses. 23. At the trial, P.W. 1 slightly improved his original version and talked about presence of other persons than who all were named in his fardbeyan. The vehicle was signalled to stop by Dhillon Singh. The firing resorted to by Dhillon and the appellant hit the deceased and him. His brothers brought both the injured to the clinic of Dr. Himkar. However, Dr. Himkar refused to afford any treatment either to Shailesh (deceased) or to him. The police had arrived at Dr. Himkar’s clinic where his fardbeyan was recorded. His further statement was also recorded by P.W. 10 at Vidyapeeth Chowk which, perhaps, is the place of occurrence of this case. Both, he and Shailesh, were admitted in Ruben Hospital, Patna, where at around 06:00 P.M., Shailesh died. For the post-mortem examination, the dead-body was brought to P.M.C.H., Patna. 24. He continued to get treatment at Ruben for 02 to 03 days. 25. In his cross-examination, P.W. 1 has admitted that he had not obtained any tender for the year 2009 for dealing in sand, but it appears from his deposition that he was a transporter, who lent his trucks for lifting the sand for commercial purposes. On the day of the occurrence, at the sand site of Bishunpur, eight of his tractors had been commissioned, necessitating his visit to that site. 26. In his cross-examination, he has again asserted that at Ruben, two gunshots wounds were found by the doctor in his hand. His brothers and nephew had come to the P.O. on hearing the sound of firing. The front glass panes of the vehicle were completely damaged. However, the same vehicle was used to come to Patna for higher treatment. The vehicle admittedly was never handed over to the Investigator. Even the Investigator never asked for it during the course of investigation. The vehicle, perhaps, belonged to the deceased which he had purchased in second hand from somebody. However, the same vehicle was used to come to Patna for higher treatment. The vehicle admittedly was never handed over to the Investigator. Even the Investigator never asked for it during the course of investigation. The vehicle, perhaps, belonged to the deceased which he had purchased in second hand from somebody. He denied the suggestion that he and his brother were hit in a gang internecine war and because of old enmity with the appellant and he having been made accused in the case of murder of the son of the appellant, he falsely projected this case, attributing the role of firing to the appellant. He reiterated in his cross-examination, though differently from what he had to say in his fardebayan, that the appellant was armed with a pistol and not rifle. 27. The younger brother of P.W. 1, namely, Arvind Singh (P.W. 2) claims to have reached the P.O. shortly after the firing had begun. By the time he had reached near the Bolero vehicle, P.W. 1 and the deceased both had already been hit. Arun Singh told him that the shot fired by Dhillon had hit Shailesh and the firing by the appellant hit him in his elbow. With respect to the other aspects of the prosecution case, P.W. 2 supported the prosecution case. In his cross-examination, he has admitted that by the time he had reached the P.O., both the deceased and P.W. 1 had already been hit, but the accused persons had still surrounded the vehicle with pistols in their hands. His statement was recorded by the Investigator after about 03 days of the occurrence. He though claimed complete ignorance about the murder of the son of the appellant and P.W. 1 having been made accused in that case, which fact appears to be very curious. P.W. 2 is the own brother of P.W. 1 and it is not expected that he would not know about the murder of his own nephew. He, on being cross-examined, tergiversated and said that he did not remember whether he had told the Investigator that the first person to reach the P.O. was him and not others. 28. This, it has been argued on behalf of the appellant, was an intelligent answer to avoid all the witnesses being dubbed as only hearsay witnesses and not eye-witnesses to the occurrence. 29. 28. This, it has been argued on behalf of the appellant, was an intelligent answer to avoid all the witnesses being dubbed as only hearsay witnesses and not eye-witnesses to the occurrence. 29. Hemant (P.W. 3), a nephew of the decease, also claims to have come to the P.O. right at the time of the occurrence and claims to have seen the entire part of the assault. 30. Another brother of P.W. 1, viz., Vijay Singh (P.W. 4) came up with a different introduction to the offence. According to him, on 06.10.2009 at about 06:30 to 07:00 A.M., while he was at Vidyapeeth Chowk, three young persons came on a red coloured motorcycle. At that time, Arun (P.W. 1) was taking tea on a tea-stall near the crossroads. Those three young persons were trying to identify P.W. 1. This sent him doubting whether any planning was being made for eliminating P.W. 1. However, P.W. 1, thereafter, proceeded to the site along with the deceased. 31. All these witnesses have spoken about their having reached the P.O. at the nick of the time; Dr. Himkar of Lakhisarai refusing to offer any treatment to them; the injured persons being taken to Patna and admitted in Ruben Hospital; and those witnesses having made their statements after 02 to 03 days of the occurrence. 32. One of the witnesses has talked about 08 days’ of hospitalization of P.W. 1. 33. Two independent persons, viz., Bengali Sao and Tuntun Singh (P.W. 8 and P.W. 9 respectively) though had made statement before the Investigator during investigation, expressed complete ignorance about the occurrence or the participation of the appellant in the crime. 34. Two of the Investigators, namely, Chandeshwar Prasad Singh and Shyam Sunder Pandey (P.W. 6 and P.W. 7 respectively) have only been associated with the investigation of this case for a brief period either for arresting the accused persons or for submitting the charge-sheet against the appellant and others. 35. The real investigation was done by Rama Shankar Singh (P.W. 10), who had himself recorded the fardbayan of P.W. 1 at Dr. Himkar’s Clinic in Lakhisarai at about 07:10 am on 06.10.2009. 36. The assessment regarding the truthfulness of the prosecution case would hinge on an assessment of the evidence of P.W. 10 before the Trial Court. 37. 35. The real investigation was done by Rama Shankar Singh (P.W. 10), who had himself recorded the fardbayan of P.W. 1 at Dr. Himkar’s Clinic in Lakhisarai at about 07:10 am on 06.10.2009. 36. The assessment regarding the truthfulness of the prosecution case would hinge on an assessment of the evidence of P.W. 10 before the Trial Court. 37. P.W. 10 was posted as Sub-Inspector of Police in the Lakhisarai Town Police Station at the relevant time. The investigation of this case was handed over to him by the OfÏcer-In-charge of the concerned Police Station. While deposing before the Court in his examination-in-chief, he has consciously avoided to refer to his having gone to Dr. Himkar’s Clinic and recording the fardbayan of P.W. 1. He expressed complete ignorance about the time when he had recorded the statement of P.W. 2. All that he remembered about P.W. 2 was that he had disclosed before him that Shailesh was seriously injured and that while being taken to Patna, he died on the way. Similar was his comment with respect to the deposition of the nephew of the deceased, namely, Hemant (P.W. 3). 38. Missing out on this very vital fact of his having gone to Dr. Himkar’s Clinic and recording the fardbayan of P.W. 1, assumes importance. Two persons were injured by gunshot, out of whom one was struggling for life as he was hit in his chest. Firing was resorted to when P.W. 1 and the deceased were sitting in that vehicle. That vehicle only was used for transporting P.W. 1 and the deceased to Dr. Himkar’s Clinic as also to Patna in Ruben Hospital. Not referring to all this by the Investigator can lead to the only inference that perhaps the timing of the occurrence was not what has been claimed. No effort appears to have been made by P.W. 10 to chase the assailants or to find out where were they. He did not even go to the Ruben Hospital; rather he recorded the further statement of P.W. 1 at Vidyapeeth Chowk only. There is nothing on record to indicate as to how and under what circumstance did he reach Dr. Himkar’s Clinic. 39. Did any one from the prosecution side inform the police station? 40. Did he himself come to know about it? 41. There is nothing on record to indicate as to how and under what circumstance did he reach Dr. Himkar’s Clinic. 39. Did any one from the prosecution side inform the police station? 40. Did he himself come to know about it? 41. The Police Station is situated at a distance of 100 meters from the suggested place of occurrence. There could be a possibility of the police ofÏcers posted in the Police Station coming to know about the occurrence immediately. But then, that was required to be disclosed before the Trial Court, especially in this circumstance when there is an old enmity and there is an allegation of firing at the crossroads in the main town in the early hours. 42. The first thing which would have struck anybody would have been to ask about the vehicle. This could be the most important corpus delicti of the case. 43. We have no idea about any treatment at Ruben Hospital; about the damaged vehicle and about the injuries of P.W. 1. 44. Missing of these essential evidence makes the prosecution case highly doubtful especially in the background of old enmity, when about three years ago, P.W. 1 was made an accused in the case of the murder of the son of the appellant. 45. The F.I.R. does not state about the arrival of the brothers and nephew of the deceased. Though vaguely, it has been mentioned by P.W. 1 that but for the arrival of people on time, both the brothers would have been killed. 46. We are not discounting the deposition of Pws. 2 to 5, who are the brothers and nephew of the deceased, merely on account of their being chance- witnesses or being interested in the prosecution of the assailant/assailants. Their explanation about their presence at the P.O. do not inspire confidence. It is really per chance that all of them reached the P.O. and saw either the full act or some part of the occurrence. In fact, one of the witnesses has even claimed to have seen the miscreants surrounding the vehicle in question. If they were so hellbent to eliminate P.W. 1 or anybody related to him, these witnesses were also very soft targets. 47. Thus, we do not get persuaded to believe that PWs. 2 to 5 had witnessed the occurrence. In fact, one of the witnesses has even claimed to have seen the miscreants surrounding the vehicle in question. If they were so hellbent to eliminate P.W. 1 or anybody related to him, these witnesses were also very soft targets. 47. Thus, we do not get persuaded to believe that PWs. 2 to 5 had witnessed the occurrence. They are related witnesses, but in the present case, they appear to be interested witnesses as well; though not always a related witness is also an interested witness. 48. We have great doubts about the truthfulness of the version of P.W. 1 for very many reasons. 49. To tie to strings together : (i) the fardbeyan was recorded by P.W. 10 at Dr. Himkar’s Clinic, who refused to administer any treatment to the injured; (ii) arrival of P.W. 10 in the clinic; (iii) not recording the statement of Dr. Himkar during the course of investigation; (iv) not looking for the damaged vehicle in which the deceased and P.W. 1 were shot at; (v) further statement being recorded somewhere near the P.O. immediately; (vi) no record about treatement at Ruben Hospital either of P.W. 1 or of the deceased being admitted for a while or the deceased being declared dead; and (vii) there being nothing on record with respect to injuries suffered by P.W. 1 for which he claims to have remained in the hospital for 02 days, whereas others claimed that he was hospitalized for 08 to 10 days, are some of the factors which have been gnawing us for all this while. 50. We, therefore, do not find that the prosecution has been able to prove the case beyond doubts much less reasonable doubts. 51. The case fails. 52. The conviction and the sentence, therefore, appears to be unmerited. 53. We, accordingly, set aside the conviction and sentence of the appellant, referred to above, and acquit him of all the charges levelled against him. 54. The appeal stands allowed. 55. The appellant is in jail. He is directed to be released forthwith from jail, if not required or detained in any other case. 56. Let a copy of this judgment be dispatched to the Superintendent of the concerned Jail forthwith for compliance and record. 57. The records of this case be returned to the Trial Court forthwith. 58. Interlocutory application/s, if any, also stand disposed off accordingly.