JUDGMENT Roy, J. - This is an appeal by Dayal Singh (33) and Mohar Singh (55) who have been convicted by the learned Sessions Judge of Hamirpur u/s 302 I.P.C. and have been sentenced to death. There is before us the usual reference by the learned Sessions Judge for the confirmation of the senctence of death passed against them. 2. The charge against the two Appellants was that on the 16th February, 1954, at abom two Gharis before sunset (equivalent to about 5 or 5.15 p.m.) they committed the murder of Raghubar Dayal Patwari by shooting him deal with a gun and a pistol respectively when Raghubar Dayal was at a distance of about two furlongs from village Gahrauli. The Appellants had denied the charge and had contended that they had been falsely implicated at the instance of one Jham Singh who bore them ill-will. 3. A written report of the occurrence was lodged at police station Muskara by Mool Chand the nephew of Raghubar Dayal deceased on the 16th Feb., 1954, at 12 in the night, the police station having been at a distance of about six miles from the place of occurrence. The report was made over to Head Constable Ganga Din (P.W. 8) when the Station Officer Mohammad Mehdi (P.W. 9) was said to have been absent from the thana. In that report it was mentioned that Rahubar Dayal was going in the evening from village Punnia to "village Gahrauli (a distance of three miles) to the house of one Khem Chand accompanied by Basdeo the cousin of Mool Chand and also by Noor Mohammad. At about one Ghari before sunset when they were at a distance of two furlongs from village Gahrauli, Dayal Singh Appellant who was armed with a pistol and Mohar Singh Appellant who was armed with a gun, both of whom were residents of village Punnia where the complainant also resided, suddenly came out from a field and fired shots at Raghubar Dayal. Raghubar Dayal was hit on the back and he fell down on the road and died instantaneously. It was mentioned in the first information report that there existed long standing enmity between Raghubar Dayal and the two Appellants arising out of dispute regarding cultivation and flowing out of certain criminal cases which had taken place between them. It was further mentioned in the first information report that Basdeo. It was mentioned in the first information report that there existed long standing enmity between Raghubar Dayal and the two Appellants arising out of dispute regarding cultivation and flowing out of certain criminal cases which had taken place between them. It was further mentioned in the first information report that Basdeo. Noor Mohammad and Mahrajwa, residents of village Punnia, and other persons who were in the neighbouring fields of village Gahrauli had seen the occurrence and had also seen the two Appellants firing shots and running away. It was contended in the first information report that from the scene of occurrence Mahrajwa went to Mool Chand in village Punnia and narrated the incident whereupon Mool Chand came to the scene of occurrence and found Raghubar Dayal lying dead on the road with marks of gun-shot and he also found Basdeo and Noor Mohammad and the Chowkidars of Gahrauli at that spot. It is therefore evident that the first information report was not based upon any direct knowledge of the occurrence but was based upon information that had been gathered by Mool Chand from Mahrajwa or from the two witnesses Basdeo and Noor Mohd. who were alleged to be the eye-witnesses. Head Constable Ganga Din (P.W. 8) in the absence of the Station Officer from the thana proceeded to the scene of occurrence and reached there at about 3 a.m. He prepared the inquest report and sent the dead body to Hamirpur for post-mortem examination. The Station Officer Mohammad Mehdi (P.W. 9) reached the scene of occurrence at about 8 or 9 in the morning. He found two wads of cartridges marked "S.G. Eley" and five wads of cardboard near the place of occurrence. He took them in possession under a recovery list prepared by him. The clothes of the deceased and blood stained earth from the place had also been taken. 4. The post-mortem examination on the body of the deceased Raghubar Dayal was conducted on 8th February, 1954 at 10.30 a.m. The post mortem report and the evidence of Dr. Banerji, Civil Surgeon of Hamirpur, who had conducted the post-mortem disclosed that that the deceased had received 12 gunshot wounds, each wound measuring 3/10in in diameter with depth varying from 2/10in. to 4/10in. with margins clear cut, punched out in an area of 5in. x 4in. on lower part of the back and lumber region. Banerji, Civil Surgeon of Hamirpur, who had conducted the post-mortem disclosed that that the deceased had received 12 gunshot wounds, each wound measuring 3/10in in diameter with depth varying from 2/10in. to 4/10in. with margins clear cut, punched out in an area of 5in. x 4in. on lower part of the back and lumber region. The wounds were scattered on either side of the middle line. There was no charring or tattooing present around wound margins. The deceased had a circular ebrasion 1in. in diameter over the right knee. The left lung, the left dome of the diaphragm, the walls of the abdomen, the stomach, the large intestines, the liver, and the kidney were found perforated. In the opinion of the Civil Surgeon death was due to hemorrhage and shock caused by these perforations resulting from gunshot injuries. The medical evidence disclosed beyond any shadow of doubt that the deceased met with his death on account of the gunshot injuries. The existence of blood stains at the spot, the existence of the dead body at that very place and the recovery of wads from the discharged cartridges also proved that the occurrence took place at the identical spot alleged by the prosecution. The evidence of the Civil Surgeon as to whether these injuries could be caused by a single firing or by two firings was not very clear and cogent. The Civil Surgeon stated that he was not a ballistic expert and he could not therefore hazard a difinite opinion on the question; but nevertheless he opined that these injuries "could be caused by a single gun-fire if the cartridge was of shots". He also stated that since there was no charring he could say that the firing was made from a distance of not more than 12 feet. A controversy was raised at the (sic) to the effect that the deceased had received only one gunshot wound, or rather he was the victim of a single firing. It would have been better if the prosecution had examine some ballistic expert to make out the point beyond any pale of controversy. But having regard to the fact that the two wads of cartridges were found at the spot marked "S.G. Eley" the probabilities are that whoever might have been the culprit or culprits two shots were discharged when this occurrence took place. 5. But having regard to the fact that the two wads of cartridges were found at the spot marked "S.G. Eley" the probabilities are that whoever might have been the culprit or culprits two shots were discharged when this occurrence took place. 5. Apart from the medical evidence the prosecution examined 10 witnesses of whom Basdeo (P.W. 2), Noor Mohd. (P.W. 3) and Mahrajwa (P.W. 4) were alleged to be the eye-witnesses of the occurrence. Mool Chand (P.W. 1) who was the author of the first information report was produced to prove the motive and to show that the first information report was made out by him upon information received from Mahrajwa and after he had been to the spot and had contacted Basdeo and Noor Mohd. Baldau (P.W. 5) was produced to show that he had seen the accused persons running away towards village Punnia after the occurrence. His evidence was, therefore, only circumstantial in nature. The other witnesses were more or less formal in nature. 6. We shall first take up the question of motive as has been alleged in the first information report and has been stated by Mool Chand (P.W. 1). In the first information report it was mentioned that there existed long standing enmity between Raghubar Dayal deceased on the one hand and Dayal and Mohar Singh accused on the other, enmity arising out of disputes regarding cultivation and arising out of certain criminal cases between them. To support that contention only Mool Chand was examined. Mool Chand stated that in the year 1924 Mohar Singh Appellant and Narpat Singh the father of Dayal Singh Appellant had assaulted Raghubar Dayal and in that case Narpat Singh and Mohar Singh were convicted. He further stated that about 20 years back Raghubar Dayal who had been joint with Narpat Singh in cultivation served his connections with him and got the holding partitioned. He further stated that about a year before the present occurrence there was some dispute between Mohar Singh and Dayal Singh and the deceased regarding the grazing of cattle over parti land and applications had been made by Raghubar Dayal against these persons before the Subdivisional Magistrate with the result that the land was taken away and was subsequently conferred upon Parmaiyan Chamar and certain others for the purpose of cultivation. Extracts from the register of the year 1924 have been produced to show that in that year Narpat Singh and Mohar Singh had been convicted for a assaulting Raghubar Dayal, but an incident which took place nearly 30 years ago would not furnish the motive for the present murder which took place on the 16th February. 1954 unless and until it is shown that throughout the period commencing from 1924 the Appellants nursed a grievance against Raghubar Dayal, a grievance culminating in this murder. The other incidents referred to by Mool Chand in his evidence, namely the division of the holding, the making of applications before the Sub-divisional Magistrate, the taking away of the parti land for pasturage and the conferment of the same over tenants have not been proved by any documentary or by any other corroborative oral evidence. These incidents were not specified in the first information report as furnishing motive for the present crime. In the absence of any other corroborative evidence it cannot be held that the incident stated by Mool Chand extending over a period of 20 years have been proyed. It is, therefore, obvious that the motive which has been alleged by Mool Chand has not been satisfactorily proved. It is, of course, not necessary for the prosecution to allege and to prove a motive, much less the adequacy of the motive. But in a case where motive has been alleged and had not been proved the prosecution must rest on firmer footing by the production of direct evidence beyond all reasonable doubt in order to sustain the charge against the accused. Consequently we have got to fall back upon the alleged eye-witnesses to ascertain whether they have told a true and consistent story in order to sustain the charge. 7. Before proceeding to examine the evidence of the eye-witnesses it may be stated here with advantage that the relations between Jham Singh and Mohar Singh Appellant are not all smooth. Mohar Singh had a brother Madho Singh who was married to Srimati Piari Kuar. Jham Singh is the son-in-law of Madho Singh and Piari Kuar. There is dispute regarding the inheritance of the property left by Piari Kuar. Mohar Singh had a brother Madho Singh who was married to Srimati Piari Kuar. Jham Singh is the son-in-law of Madho Singh and Piari Kuar. There is dispute regarding the inheritance of the property left by Piari Kuar. On the 1st July, 1953, the Station Officer of police station Muskara made a report to the Sub-divisional Officer under Sections 107/- 117, Code of Criminal Procedure at the instance of Jham Singh against Mohar Singh to the effect that there was an apprehension of a breach of the peace, on the part of Mohar Singh on account of the inheritance of Srimati Piari Kuar. Ex. D-3 is a copy of that report. It sets out the facts stated above and it further mentions Jham Singh and Zahur, son of Noor Mohammad, as witnesses besides four others who were to bear out the contention made in that report. This Zahur is no other than the son of Noor Mohammad, prosecution witness, who has been examined in the present case. On the 4th July, 1953, i.e. three days after the report Ex. D-3 aforesaid had been made, an application was moved on behalf of Jham Singh, which is Ex. D-2 on the record, for the taking of proceedings u/s 145, Code of Criminal Procedure against Mohar Singh and this was based, more or less, upon the same allegations as were contained in the earlier report Ex. D-3. It further appears that in the year 1950 Jham Singh had prosecuted Mohar Singh u/s 457, I.P.C. and in that case Ram Charan the brother of Mool Chand (P.W. 1) and the cousin of Basdeo (P.W. 2) was a prosecution witnesses. Ex. D-4 is the copy of the statement of Ram Charan in that case. These papers show that Mool Chand, Basdeo and Noor Mohammad prosecution witnesses are in a certain measure beholden to Jham Singh and it is therefore not unlikely that they have come forward to despose against Mohar Singh Appellant at the instance of Jham Singh. 8. If we examine the evidence of Basdeo, Noor Mohammad Mahrajwa and fialdau we would find that there testimony is not true and convincing. 9. Basdeo stated that in the evening in question he was accompanying his uncle Raghubar Dayal when he was going from village Punnia to village Gahtauli. 8. If we examine the evidence of Basdeo, Noor Mohammad Mahrajwa and fialdau we would find that there testimony is not true and convincing. 9. Basdeo stated that in the evening in question he was accompanying his uncle Raghubar Dayal when he was going from village Punnia to village Gahtauli. When Raghubar Dayal was near the Khalyan of Rameshwar, which is indicated by No. 3 in the site-plan prepared by the Station Officer, the witness was about 50 or 60 paces behind him and he was accompanied by Noor Mohammad. Basdeo deposed that at that spot both the accused came out from a field and fired simultaneously at Raghubar Dayal, Mohar Singh firing with a gun and Dayal Singh with a pistol, and that Raghubar Dayal fell down immediately at the spot and expired. According to Basdeo, Mahrajwa also reached the place almost immediately and the witness asked Mahrajwa to proceed to Mool Chand to inform him of the occurrence. The witness further stated that Baldau also reached the spot a little later. 10. In the Court of the Sessions Basdeo and Noor Mohammad both stated that the two accused were at a distance of 50 paces from them when they fired at Raghubar Dayal. In the court of the committing magistrate they had however stated that they were only at a distance of 10 paces from them when they fired at the deceased. They tried to explain this inconsistency in their statements by saying in the court of sessions that it was by mistake that they had said before the committing Magistrate that the distance was only 10 paces. The reason why they have invented this explanation is not far to seek. If their statement before the committing Magistrate were true, the two accused must have shot at the deceased from a distance of about 40 paces. Bat that contention could not find support from the medical evidence which, as we have already said, was to the effect that the deceased must have been fired at from a distance of about 12 feet. It was for that reason, viz. with a view to make their testimony consistent with the medical evidence that both these witnesses stated in the court of sessions that the distance stated by them in the court of Committing Magistrate was based upon a mistake. It was for that reason, viz. with a view to make their testimony consistent with the medical evidence that both these witnesses stated in the court of sessions that the distance stated by them in the court of Committing Magistrate was based upon a mistake. There is another inconsistency between the testimony of these two witnesses and the testimony of Mahrajwa. Whilst Basdeo and Noor Mohammad stated that at the time of the commission of the crime no alarm had been raised by them or by any one else on account of fear of the accused persons, Mahrajwa said that as soon as the deceased was fired at he raised an alarm and he contitnued the alarm till after the two accused had run away from the place. Noor Mohammad deposed that he did not know if any other person besides the witnesses who were examined in the case had seen the occurrence. In the first information report it was categorically stated that people of the neighborhood residing in village Gahrauli who were over the fields had seen the accused persons firing the shots and running away. The evidence of Noor Mohammad on the point given in the court of Sessions was to explain away the absence of any independent witness of the locality as a witness in the case. Mahrajwa, upon whose information the first information report is said to have been made, made the position very clear. In cross-examination he said that people were in the neighbourhood of the place of occurrence when this shooting took place, that those persons had been the occurrence, and that he had conveyed the information to Mool Chand before the first information report had been lodged. If that were so, it is surprising that no independent witness of the locality was produced on behalf of the prosecution to support the charge. The presence of Basdeo and Noor Mohammad at the place of occurrence is rendered extremely doubtful. According to the first information report both these persons were accompaying Raghubar Dayal when he was going to village Gahrauli to the house of Khem Chand. Noor Mohammad does not, however, stick to that version. He stated that he was going to Gahrauli to borrow grain from one Chhiddu Musalman. He does not say that he was accompanying Raghubar Dayal to the place of Khem Chand. Noor Mohammad does not, however, stick to that version. He stated that he was going to Gahrauli to borrow grain from one Chhiddu Musalman. He does not say that he was accompanying Raghubar Dayal to the place of Khem Chand. We are not satisfied with the evidence of Basdeo and Noor Mohammad when they have said that they were at the place of occurrence and they saw the two accused firing at Raghubar Dayal. 11. The evidence of Mahrajwa (P.W. 4) suffers also under the same infirmities. Mahrajwa stated that in the evening in question he was returning from village Imilia to Punnia,--village Gahrauli falling on the way,--after depositing some quantity of Ghee with one Bara Tewari and that when he was near the scene of occurrence he saw the two accused firing at Raghubar Dayal, Mohar Singh with a gun and Dayal Singh with a pistol. His contention that he had taken the Ghee there for sale was rendered extremely doubtful by his cross-examination when he said that he had not received the price of Ghee and that he had therefore to keep it with Bara Tewari without the price having been paid. He stated that; he left Imilia before noon. Imilia is at a distance of about three miles from village Gahrauli and lies to the north of village Gahrauli. If he left village Imilia before noon he would not have taken more than five hours to cover a distance of about three miles in order to be able to witness the occurrence at 5 or 5.15 p.m. He came forward with the excuse that he had stopped at the tank in village Gahrauli with a view to take Singha-ras. That excuse was advanced by him merely with the object of explaining away the time that had been taken by him reaching the scene of occurrence. Whilst Noor Mohammad said in his statement u/s 164, Code of Criminal Procedure that Baldau (P.W. 5) was one of the. eye-witnesses of the occurrence, a statement which he characterized as incorrect when he was examined before the court of Sessions, Mahrajwa (P.W. 4) stated that Baldau reached the scene of occurrence when he (Mahrajwa) was still there and that Baldau had told him of his having seen the assailants running away. 12. Baldau (P.W. 5) has given a different story on that point. 12. Baldau (P.W. 5) has given a different story on that point. According to him he was going from village Kharela to Gahrauli on some errand and when he was close to the scene of occurrence he had seen Mohar Singh and Dayal Singh running away towards village Punnia, the former with a gun; and when he inquired of them as to why they were running away they kept quiet. Village Kharela lies at a distance of about three miles to the south of village Punnia. Put to the test in cross-examination Baldau's testimony was found demonstrably false. He stated that he left village Kharela at noon time and that he went straight to the scene of occurrence without stopping anywhere and thereby covered a distance of about five miles. Baldau is aged 32 years. It could not have taken nearly five hours to cover a distance of five miles as has been contended by him. When he discovered the futility of that statement he later on came forward with another story. He said that he left his village in the after noon and had walked slowly to cover the distance of five miles in order to be there at about 5 or 5-15 in the evening. Baldau contradicted Mahrajwa by saying that he did not find Mahrajwa at the scene of occurrence when he reached there. In the court of the Committing Magistrate Baldau stated that it was on the 17th of February 1954, that he was going from village Kharela to his Susral in village Gahrauli. In the court of sessions he said that that was a wrong statement made by him and that it was really on the 16th February, 1954, that he had gone there. Baldau also stated that when he was examined by the police he had stated that Dayal Singh accused was "empty handed." He explained that he had said so because he had not noticed anything in his hands at that time. It is not contended on behalf of the prosecution that when Dayal Singh was running away after committing this crime he had thrown away the pistol or had concealed it somewhere. The evidence of Baldau renders it extremely doubtful whether Dayal Singh had any weapon with him even if he were at the spot. 13. It is not contended on behalf of the prosecution that when Dayal Singh was running away after committing this crime he had thrown away the pistol or had concealed it somewhere. The evidence of Baldau renders it extremely doubtful whether Dayal Singh had any weapon with him even if he were at the spot. 13. The evidence of these prosecution witnesses is full of discrepancies and we are not at all convinced with the truth of their statements. As we have already said no witness of the scene of occurrence residing in village Gahrauli has been produced. That is a serious error on the part of the prosecution. And that error has not been explained on any possible hypothesis. Learned Counsel for the State has urged that it was incumbent upon the defence to have put a question to Sub-Inspector Mohd. Mehdi (P.W. 9) as to why any independent witness of the locality was not produced; and it has been argued by him that the statement of Mahrajwa that people were in the neighbourhood and they had seen this occurrence was a mere surmise and that no capital can be made out of it by the defence. We are not in a position to subscribe to this argument. As we have already said, it was mentioned in the first information report that independent witnesses of village Gahrauli had seen the occurrence. It was further mentioned in the evidence of Mahrajwa that there were residents of village Gahrauli who had seen the occurrence. It was, therefore, for the prosecution to explain why those independent witnesses had not been produced. The weight which is to be attached to the testimony of a witness depends on a large measure on various considerations some of which are that on the face of it his evidence should be in consonance with the probabilities and consistent with other evidence and should generally so fit in with material details of the case for the prosecution as to carry conviction of truth to a prudent mind. These elements are wholly wanting in the present case. Consequently implicit reliance cannot be placed on the testimony of the four witnesses who have been examined on behalf of the prosecution to furnish direct evidence of the crime or on the circumstantial evidence of one of the witnesses having been the two accused running away just after the commission of the crime. Consequently implicit reliance cannot be placed on the testimony of the four witnesses who have been examined on behalf of the prosecution to furnish direct evidence of the crime or on the circumstantial evidence of one of the witnesses having been the two accused running away just after the commission of the crime. 14. The medical evidence does not also fit in with the testimony of the eyewitnesses. We have already commented upon the testimony of the two witnesses, viz. Basdeo and Noor Mohammad, where they said in the court of the Committing Magistrate that the two shots had been fired from a distance of about 40 steps and when they went back upon their statements and stated in the court of sessions that the two shots were fired from a distance of only 10 steps to fit in with the medical evidence. The statement of the Civil Surgeon was to the effect that the shot must have been fired from a distance of about 12 feet. As a distance of 12 feet the charge of shot spreads widely and enters the body as individual pellets producing separate openings in an area of five to eight inches in diameter, but without causing blackening, scorching or tattooing of the surrounding skin (vide Modi's Medical Jurisprudence, 1949 Edition, page 213). Taylar in his Medical Jurisprudence Volume I (1948) at pages 440 and 441 has stated as follows: In the case of shot-guns the distance from which the weapon was fired may be deduced from the amount of scattering of the charge. At about a yard the whole of the charge enters in a mass, producing a round (sic) about the size of the bore of the weapon, with ragged edges and surrounded by a zone of blackening and burning. As a rule, there is little trace of burning beyond a yard, but traces of powder marks may be found up to four yards or more. The shot begins to disperse in an ordinary cylindrical barrel at about three yards, at which distance the bulk of the shot enters in one mass and leaves a hole with a few isolated shot around it. The dispersion gradually increased, and at about five yards on open pattern about ten inches in diameter is found. At ten yards the diameter of spread is about twenty inches, at twenty yards about thirty inches, and so on. The dispersion gradually increased, and at about five yards on open pattern about ten inches in diameter is found. At ten yards the diameter of spread is about twenty inches, at twenty yards about thirty inches, and so on. With fully choked barrels the dispersion is about half the above. With pistols loaded with shot the dispersion is very much greater. 15. If, therefore, in the present case one of the shots had been fired with a gun and the other with a pistol the area of dispersion should not have been as found in the present case, both shots having been discharged according to the prosecution story from the same distance. 16. Two witnesses were produced on the side of defence to show that the prosecution witnesses were connected with Jham Singh and were beholden to him and on that account they had come forward to give evidence. The prosecution must, however, stand on its own legs. And where, as in the present case, the evidence of the prosecution witnesses is full of inconsistencies and improbabilities and based upon surmises and forced consequences, no conviction can be based upon their testimony. 17. After a careful consideration of the evidence on the record we are of opinion that the conviction of the two Appellants cannot be sustained. 18. Accordingly we allow the appeal, set aside the conviction and sentence of Dayal Singh and Mohar Singh and direct that they be set at liberty at once unless wanted in any other matter. The reference is rejected.