JUDGMENT : Rongon Mukhopadhyay, J. 1. Heard Mr. Sahay Gaurav Piyush, learned Amicus Curiae for the appellant and Mr. Bhola Nath Ojha, learned Spl. P.P. for the State. 2. This appeal is directed against the judgment and order of conviction and sentence dated 15.05.1997 (sentence passed on 20.05.1997) passed by Sri R.P. Verma, learned Sessions Judge, Godda in Sessions Case No. 103/1995, whereby and whereunder, the appellant has been convicted for the offence punishable u/s 302/34 of the IPC and has been sentenced to R.I. for life. 3. The prosecution case arises out of the fardbeyan of Prakash Kumar Mirdha recorded on 20.09.1994, in which, it has been stated that on 19.09.1994 in the afternoon he had gone to the house of Jamuna Bhagat. The informant had not taken his lunch. The wife of Jamuna Bhagat used to treat the informant like her son. She had fed the informant and expressed her desire to visit the place the informant stays. It has been stated that the informant had taken the wife of Jamuna Bhagat to the house of Tunu Mirdha where they had tea and snacks and spent some light hearted moments. The informant thereafter had gone to work in the flour mill of Fuleshwar Gupta. In the evening the wife of Tunu Mirdha had informed the informant that she had accompanied the wife of Jamuna Bhagat to her house and had left her there. She had also stated that the wife of Jamuna Bhagat has called the informant to meet her. After closing the mill of Fuleshwar Gupta the informant started going towards the house of Jamuna Bhagat and when at 7:30 P.M. he had reached Saketpuri Raj Kumar Bhagat (appellant) and Dilip Sah surrounded the informant and admonished him as to why he has not stopped going to the house of Jamuna Bhagat. A quarrel had also ensued between them. It has been alleged that the informant on seeing Raj Kumar Bhagat taking out a pistol from his bag started fleeing away and he was shot at the back. When the informant raised a cry of alarm one of the persons arrived and the informant asked for water from him who had given him water. The informant somehow started going towards the Hatia but he fell down in front of the house of Anita Devi. When the informant raised a cry of alarm one of the persons arrived and the informant asked for water from him who had given him water. The informant somehow started going towards the Hatia but he fell down in front of the house of Anita Devi. The informant was taken to Sadar Hospital on a rickshaw after which he started becoming unconscious. The reason for the occurrence is that Raj Kumar Bhagat never like the informant frequenting the house of Jamuna Bhagat and earlier also quarrel had taken place between them. Based on the aforesaid allegations Godda (T) P.S. Case No. 280/1994 was instituted u/s 341, 324 and 307/34 of the IPC. On completion of investigation charge sheet was submitted and after cognizance was taken the case was committed to the Court of Sessions where it was registered as Sessions Case No. 103/1995. Charge was framed against the accused u/s 302/34 of the IPC and against Raj Kumar Bhagat u/s 302 of the IPC which was read over and explained to him in Hindi to which he pleaded not guilty and claimed to be tried. 4. The prosecution has examined as many as fourteen witnesses in support of its case. 5. P.W.1 (Chandiya Devi) did not support the case of the prosecution and was declared hostile by the prosecution. 6. P.W.2 (Dr. K.N. Choudhary) was posted as a Civil Assistant Surgeon, Godda and on 19.02.1994 he had examined Prakash Kumar Mirdha and had found the following: (i) Lacerated wound on the back of the chest on left side in 10th intercostal space, surrounded by minute abrasions, margins everted and oozing, margins charred, tattooing grossly size ¼” x ½” (communicating with the wound of exit). Shape was oval. This was the wound of entry. (ii) Lacerated wound, margins everted ¼” x ½” communicating with the wound of entry. Oval in shape. It was on the 10 th intercostal space in front of the left chest. (iii) Age of the injuries was about one hour. The injuries were grievous in nature caused by fire arm. The injuries were grievous in nature caused by firearm. He has proved the injury report which has been marked as Exhibit-1. In cross examination, he has deposed that in the injury report it is not mentioned as to whether the injured was conscious. This fact is noted in the Bed Head Ticket. The injuries were grievous in nature caused by firearm. He has proved the injury report which has been marked as Exhibit-1. In cross examination, he has deposed that in the injury report it is not mentioned as to whether the injured was conscious. This fact is noted in the Bed Head Ticket. He has further deposed that had the injured been conscious he would have noted the same in the record. 7. P.W.3 (Meera Devi) has stated that she was in her house when she received an information that her nephew Prakash Mirdha has been shot at by Raj Kumar Sah and Dilip Sah. On receiving such information, she had gone to Godda Hospital where Prakash was found to be conscious. Prakash had disclosed that Dilip had flashed a torch on his face and Raj Kumar had fired at him. In cross-examination, she has deposed that she has not stated before the Police that Dilip had flashed a torch on the face of Prakash Mirdha and Raj Kumar had shot at him. When Prakash had disclosed about the incident to her, her sister Sushila, Janki, Manki and Gita were present. 8. P.W.4 (Bablu Kumar Gupta) has stated that he had gone to the Hospital on hearing about Raj Kumar Sah having shot at Prakash Mirdha. Prakash was seen lying in an injured condition. He had thereafter returned home. He had later on come to know that Prakash has died at Bhagalpur Hospital. In cross-examination, he has deposed that he is not related to the deceased. Prakash Mirdha was in his senses but he was restless. He was not speaking. The family members of Prakash Mirdha had reached the Hospital after him. 9. P.W.5 (Dhananjai Kumar Mirdha) has stated that he was in his house when he came to know that Prakash Mirdha has been shot at and he is in the Hospital. He had gone to the Hospital and Prakash had disclosed that Rajkumar had shot at him and Dilip was also with Rajkumar. In cross-examination, he has deposed that his statement was not recorded by the Police. Prakash was his cousin brother. The Police had recorded his statement but he had not stated that Prakash had disclosed about Raj Kumar firing at him and the presence of Dilip. He had stated before the Police that Prakash was unconscious. In cross-examination, he has deposed that his statement was not recorded by the Police. Prakash was his cousin brother. The Police had recorded his statement but he had not stated that Prakash had disclosed about Raj Kumar firing at him and the presence of Dilip. He had stated before the Police that Prakash was unconscious. Prakash had regained conscious after the day he was taken to Bhagalpur. 10. P.W.6 (Kamla Devi) is the mother of the deceased who has stated that she was in her house when a woman informed her that her son has been shot at after which she rushed to the Hospital. Her son had disclosed that Raj Kumar Sah and Dilip Kumar Sah had fired at him. Prakash was taken to Bhagalpur Hospital in the night itself. In course of treatment at Bhagalpur Hospital her son had died. In cross-examination, she has deposed that when Hemanti Devi had disclosed about the incident, she and her husband were present and both had rushed to the Hospital. When she and her husband reached the Hospital, she had found the Police already present. At that time her son had disclosed about the assailants Raj Kumar and Dilip. Her statement was recorded by the Police at Godda. Prakash was not unconscious at Godda. He was conscious when he was taken to the Hospital at Bhagalpur. The statement of Prakash was recorded by Bhagalpur Police. When her son had taken the name of the assailants, she, her husband and the Police Officer were present. The statement was taken down in writing and the Police present had taken the signature of Prakash. 11. P.W.7 (Anita Devi) has stated that she was in her house when Prakash Mirdha came crying and asked her to inform his father as he was not in a position to go home. She had thereafter informed his mother. In cross-examination, she has deposed that she had caught hold of the hand of Prakash and assisted him in going towards the road. 12. P.W.8 (Amar Kumar Singh) has stated that while returning after completing an electricity related work near Hatia Chowk he found Prakash Mirdha lying on the ground. Several persons had already assembled at the said place. Prakash Mirdha had asked him to inform his relatives that Raj Kumar had shot at him. Prakash Mirdha was taken to the Hospital in a rickshaw. Several persons had already assembled at the said place. Prakash Mirdha had asked him to inform his relatives that Raj Kumar had shot at him. Prakash Mirdha was taken to the Hospital in a rickshaw. In cross-examination, he has stated that his statement was not recorded by the Police. The injured Prakash was conscious till the time he was taken to the Hospital. The Police had come and recorded the fardbeyan of Prakash. 13. P.W.9 (Sanjeev Kumar Gupta, P.W.10 (Fuleshwar Sao) and P.W.11 (Kanchan Kumar Rai) have not supported the case of the prosecution and were declared hostile by the prosecution. 14. P.W.12 (Naresh Mirdha) has stated that he was in his house when a woman came and disclosed that Prakash Mirdha has been shot at. He rushed to the Hospital where he saw the fardbeyan of Prakash Mirdha being recorded by the Police. Prakash had disclosed that Raj Kumar and Dilip had shot at him. He was taken to Bhagalpur Hospital where he repeated the same thing. In cross-examination, he has deposed that when Prakash was giving his statement several persons including his family members were present. He had gone to Bhagalpur with Prakash along with his wife, father and children. Prakash had become unconscious at 5:00 P.M. and he died in that stage at 10:00 P.M. 15. P.W. 13 (Hare Ram Sharma) was posted as a Sub Inspector of Police at Godda Nagar P.S. and on 19.09.1994 at 8:30 P.M. Dr. K.N. Choudhary had informed him over phone that a person has been admitted in the Hospital in an unconscious state and he has received bullet injuries. After making a station diary entry he had gone to the Hospital along with the Officer-in-Charge. He has proved the station diary entry which has been marked as Exhibit-2. The injured was in an unconscious state and, therefore, his statement could not be recorded. The injured was referred to Bhagalpur Hospital. He had gone to Bhagalpur Medical College where he recorded the fardbeyan of Prakash Kumar Mirdha. The witnesses Kanchan Kumar Rai and Sanjeev Kumar Gupta had put their signatures on the fardbeyan as the witnesses. He has proved the fardbeyan which has been marked as Exhibit-3. The forwarding of the fardbeyan has been proved and marked as Exhibit-4. The formal FIR has been proved and marked as Exhibit-5. The witnesses Kanchan Kumar Rai and Sanjeev Kumar Gupta had put their signatures on the fardbeyan as the witnesses. He has proved the fardbeyan which has been marked as Exhibit-3. The forwarding of the fardbeyan has been proved and marked as Exhibit-4. The formal FIR has been proved and marked as Exhibit-5. He had recorded the restatement of the informant and had also recorded the statement of other witnesses. He had inspected the place of occurrence which is an alley adjacent to the house of Badrinarayan Jha in Saketpuri in Godda, Hatia Chowk. He had seized blood- stained earth from the place of occurrence and had prepared a seizure list. He had received the injury report of Prakash Mirdha. After Prakash Mirdha died an inquest report was prepared. He has proved the postmortem report which has been marked as Exhibit- 6. After obtaining the postmortem report he had submitted charge-sheet. In cross-examination, he has deposed that when he had gone to Godda Hospital Prakash Mirdha was unconscious. Till he was taken to Bhagalpur he continued to remain unconscious. The witness Meera Devi had not stated that Prakash had disclosed that Dilip had flashed the torch on his face and Raj Kumar had shot at him. When he had gone to Bhagalpur the injured was conscious. He had recorded the statement of Kamla Devi at Bhagalpur Hospital wherein she had stated about Prakash disclosing that Raj Kumar Sah and Dilip Sah had fired at him but such fact was not stated by her at Godda. It is not mentioned in the diary that Bhagalpur Police had recorded the statements of some of the witnesses. He has further stated that the fardbeyan of Kamla Devi and the inquest report of Prakash Kumar Mirdha were given to him by Braj Kishor Prasad of Barari P.S. Bhagalpur. The fardbeyan of Kamla Devi is not in the diary. The fardbeyan of Kamla Devi was recorded on 21.09.1994. It is incorrect to say that the fardbeyan of Kamla Devi was recorded prior to the fardbeyan scripted by him. It is also incorrect to say that before him Bhagalpur Police had recorded the fardbeyan of Prakash Mirdha. It is incorrect to say that the thumb impression of Prakash Mirdha was taken when he was unconscious. It is incorrect to say that the fardbeyan of Kamla Devi was recorded prior to the fardbeyan scripted by him. It is also incorrect to say that before him Bhagalpur Police had recorded the fardbeyan of Prakash Mirdha. It is incorrect to say that the thumb impression of Prakash Mirdha was taken when he was unconscious. In examination on recall he has stated that the witness Chandia Devi had disclosed that her grandson Prakash had an illicit relationship with the wife of Jamuna Bhagat. She had also stated that Prakash used to frequent the house of Jamuna Bhagat and despite repeated efforts he did not stop going to his house. The witness Sanjeev Kumar Gupta had stated that when Prakash Mirdha regained consciousness, he had stated about Raj Kumar Bhagat having fired at him with pistol. The witness Fuleshwar Sao has stated that when he went to Godda Hospital Prakash Mirdha had disclosed the attempts on his life were made by Raj Kumar Bhagat and Dilip Sao and Raj Kumar Bhagat had shot at him. 16. P.W.14 (Dr. H.I. Ansari) was posted as Head of the Department, F.M.T., J.L. Medical College, Bhagalpur and on 21.09.1994 he had conducted autopsy on the dead body of Prakash Kumar Mirdha and had found the following: (i) Fire arm wound of entry on left side back of chest size ½” x ½” with black everted and lacerated margin along with tattooing around the wound. (ii) Fire arm wound of exit on front of abdomen with everted and lacerated margin having size of ¾” x ½”. (iii) On dissecting the track of the wound, the projectile was found to have passed from the back by breaking the 11th rib in the left side and then it lacerated the spleen, diaphragm, left kidney, stomach and mesentery. (iv) The chest cavity and abdominal cavity contained. Stomach also contained some pasty food. All other viceras were found pale. (v) The injury no. (i) and (ii) both were caused by fire arm. The cause of death was opined to be due to haemorrhage and shock on account of the injuries on abdomen and blood vessels. The postmortem report has been proved and marked as Exhibit-7. In cross-examination, he has deposed that after receiving the injury the injured could talk for some time but his voice would be feeble. The cause of death was opined to be due to haemorrhage and shock on account of the injuries on abdomen and blood vessels. The postmortem report has been proved and marked as Exhibit-7. In cross-examination, he has deposed that after receiving the injury the injured could talk for some time but his voice would be feeble. He has further deposed that before the injured had gone into a coma he could have talked. 17. The statement of the accused was recorded u/s 313 Cr.P.C. in which he has denied his complicity in the commission of the murder. 18. It has been submitted by Mr. Sahay Gaurav Piyush, learned Amicus Curiae for the appellant that there are no eyewitness to the occurrence and the case of the prosecution primarily rests upon circumstantial evidence on account of the purported dying declaration of Prakash Kumar Mirdha. The said dying declaration cannot be taken into consideration because of the fact that Prakash Kumar Mirdha was not in a conscious state of mind to give such details as mentioned in the fardbeyan. There is no certificate of the Doctor regarding the capability of Prakash Kumar Mirdha to make such statement. Mr. Sahay Gaurav Piyush, learned Amicus Curiae has also submitted that the prosecution has supported the initial fardbeyan recorded and the fardbeyan of Prakash Kumar Mirdha is not the first one. The postmortem report also does not corroborate the manner of assault as attributed to the appellant. 19. Mr. Bhola Nath Ojha, learned Spl. P.P. for the State has submitted that several witnesses have stated about Prakash Kumar Mirdha detailing about the firing made upon him by the appellant and the deceased died due to such firearm injuries. P.W.13 (I.O) has also been able to explain the manner in which the fardbeyan was recorded which leaves no room for doubt that the fardbeyan of Prakash Kumar Mirdha is authentic and reliable and beyond any reasonable doubt. 20. We have heard the learned counsel for the respective parties and have also perused the Trial Court Records. 21. As per the fardbeyan which is also the dying declaration of Prakash Kumar Mirdha the cause of the incident seems to be of the deceased not adhering to the dictates of the appellant regarding his frequent visits to the house of Jamuna Bhagat. 21. As per the fardbeyan which is also the dying declaration of Prakash Kumar Mirdha the cause of the incident seems to be of the deceased not adhering to the dictates of the appellant regarding his frequent visits to the house of Jamuna Bhagat. Though some of the witnesses have stated about an angle of illicit relationship but it appears that as per P.W.13 (I.O.) in course of investigation one Chandia Devi had stated about an illicit relationship between Prakash Kumar Mirdha and the wife of Jamuna Bhagat. The said Chandia Devi who has been examined as P.W.1 has been declared hostile by the prosecution. The motive, therefore, remain suspended in a haze of uncertainty. So far as the dying declaration of Prakash Kumar Mirdha is concerned it is to be seen as to whether he was in a position to give such statement and that to in considerable details. Admittedly there is no certificate issued by the treating Doctor that Prakash Kumar Mirdha was in a fit state of mind to speak. His statement was not recorded in the presence of the Doctor and the witnesses before whom such statement was recorded being P.W.9 and P.W.11 have been declared hostile by the prosecution. The condition of the patient has to be deciphered primarily from the evidence of P.W.2 and P.W.14. P.W.2 had issued an injury report of Prakash Kumar Mirdha and he in his cross-examination has stated that if the patient was in a conscious state he would have noted the same in the report. An inference can, therefore, be drawn that Prakash Kumar Mirdha was unconscious when he was initially treated. So far as P.W.14 is concerned, he had conducted autopsy on the dead body of Prakash Kumar Mirdha and had found a firearm injury on the left side back of chest and the exit of the wound was on the front of the abdomen. The bullet while travelling had broken the 11th rib on his left side after which it lacerated the spleen, diaphragm, left kidney, stomach and mesentery. P.W.14 in his cross-examination has stated that the injured could have talked for some time but feebly. As per the station diary entry which has been marked as Exhibit-2 the information revealed that Prakash Kumar Mirdha was in an unconscious state. P.W.14 in his cross-examination has stated that the injured could have talked for some time but feebly. As per the station diary entry which has been marked as Exhibit-2 the information revealed that Prakash Kumar Mirdha was in an unconscious state. As per P.W.6 when the statement of Prakash Kumar Mirdha was recorded the only person present were she, her husband and the Police Officer who was recording the statement. However, such fact does not find support from the fardbeyan as neither the same has been mentioned in the body of the fardbeyan nor these persons were signatories to the fardbeyan. What can be culled out from the above is that the deceased died on the next day of the incident and considering the precarious condition he was in it would be well-nigh impossible for the deceased to have given such detailed version of the incident as noted in the fardbeyan. The fardbeyan of Prakash Kumar Mirdha cannot, therefore, be construed to be a dying declaration. 22. The next question which has been raised by the learned Amicus Curiae is whether the prosecution has suppressed the initial fardbeyan or not. In this context we may refer to the evidence of P.W.8 who was one of the persons who had gone to the place of occurrence and had found Prakash Kumar Mirdha lying on the ground. He has stated about the fardbeyan of Prakash Kumar Mirdha recorded at Godda Hospital. As per P.W.6 the mother of the deceased she had stated about the presence of Police when her son had disclosed about the incident. P.W.6 has also stated that her fardbeyan was recorded by the Police at Godda which has been corroborated by P.W.13 to the effect that Bhagalpur Police had recorded the fardbeyan of P.W.6 a day after Prakash Kumar Mirdha had died. The father of the deceased has been examined as P.W.12 and he has also stated about the fardbeyan of Prakash Kumar Mirdha being recorded in his presence as well as in the presence of other family members. Neither the fardbeyan of Prakash Kumar Mirdha nor that of Kamla Devi (P.W.6) have been produced by the prosecution and such suppression would create a doubt over the events stated subsequently in the fardbeyan of Prakash Kumar Mirdha recorded at Bhagalpur. 23. Neither the fardbeyan of Prakash Kumar Mirdha nor that of Kamla Devi (P.W.6) have been produced by the prosecution and such suppression would create a doubt over the events stated subsequently in the fardbeyan of Prakash Kumar Mirdha recorded at Bhagalpur. 23. The learned trial court has failed to appreciate the aforesaid paradox as gleaned by us hereinabove which clearly points to the innocence of the appellant. We, therefore, on consideration of the aforesaid set aside the judgment and order of conviction and sentence dated 15.05.1997 (sentence passed on 20.05.1997) passed by Sri R.P. Verma, learned Sessions Judge, Godda in Sessions Case No. 103/1995. 24. This appeal is allowed. 25. Since the appellant is on bail he is discharged from the liability of his bail bond. 26. Pending I.As., if any, stands closed. 27. We take this opportunity to appreciate the assistance rendered by Mr. Sahay Gaurav Piyush, learned Amicus Curiae and consequently direct the Member Secretary, High Court Legal Services Committee to extend the stipulated fees to Mr. Sahay Gaurav Piyush, learned Amicus Curiae within a period of three weeks from the date of receipt/production of a copy of this order.