JUDGMENT H. N. Seth, J. 1. These three connected appeals arise out of the judgment of the Sessions Judge, Allahabad dated 17-6-75 convicting five appellants in these three appeals of various offences punishable under Sections 147, 148, 325/ 149 and 302/149 of the Indian Penal Code. All the five appellants, namely, Brahma Das, Ballabh Das, Ghanshyam Das, Salik Ram and Rajdhar have been awarded death sentence under Section 302/149 of the Indian Penal Code and all of them have also been convicted under Section 325/149 of the Indian Penal Code and each of them had been awarded a sentence of rigorous imprisonment for one year. Appellants Salik Ram and Rajdhar have further been convicted under Section 147 of the Indian Penal Code and awarded a sentence of rigorous imprisonment for one year each, while the remaining three appellants have further been convicted under Section 148 of the Indian Penal Code and awarded a sentence of 18 months rigorous imprisonment each. Criminal Appeal No. 1413 of 1975 has been filed by Ballabh Das and Salik Ram; Criminal Appeal No. 1436 of 1975 by Ghanshyam Das and Rajdhar, and the third Criminal Appeal No. 1449 of 1975 by Brahma Das. There is the usual reference for confirmation of death sentences. 2. The occurrence is said to have taken place on 13-6-1974 at about 5 p.m. in village Seona within the circle of Police Station Sarai Mamrez in the district of Allahabad. The person, who lost his life in the incident was Rajit Ram Pandey and his first cousin Jokhai Das sustained a grievous injury. The parties are descendants of a common ancestor. Narain Das and Raghunath Das were real brothers. Brahma Das and Salik Ram are the grandsons of Narain Das while Ballabh Das and Ghanshyam Das are his great grandsons. Rajit Ram deceased was the grandson of Raghunath Das and Jokhai Das is also a grandson of Raghunath Das. According to the prosecution case, there was long standing enmity between the two branches of Narain Das and Raghunath Das. In the year 1941 one Damodar Das of the branch of Raghunath Das was murdered. Rajit Ram deceased was the grandson of Raghunath Das and Jokhai Das is also a grandson of Raghunath Das. According to the prosecution case, there was long standing enmity between the two branches of Narain Das and Raghunath Das. In the year 1941 one Damodar Das of the branch of Raghunath Das was murdered. Mathura Das s/o Narain Das and two grandsons of Narain Das, namely, Salik Ram and Jagdish Ram along with others were prosecuted for that murder, Rajit Ram deceased and his brother Aditya Narain appeared as witnesses for the prosecution in that case, which ended in the conviction of Jagdish Ram and others. In the year 1950 Ramanuj of the branch of Narain Das was murdered. Rajit Ram deceased, his brother Aditya Narain and some others were named as culprits, but this case ended in acquittal. The state preferred an appeal against this acquittal, and it was dismissed on 17-3-1954. In a consolidation case pending against Rajdhar appellant, Aditya Narain gave evidence against him and Rajdhar appellant lost that case. Rajit Ram deceased belonged to Socialist Party. In the year 1969, the deceased and Shyam Surat Upadhya were elected to the Assembly in a bye-election. Later on the deceased joined Congress (R) party. In the year 1974 however the deceased was defeated in the election. But inspite of that the deceased continued to be an influential person. THE carving out of chaks of Jagannath and Arjun Das started on 12-6-74 and this job was being done by Ramesh Chand Verma, Kanungo and Chhotey Lal Lekhpal. They could not conclude the measurement on that date and therefore they continued their work on the next day, viz. 13-6-74. At about 63-Rep. 5 p.m. when measurement of the mend between the chaks of Jagannath and Arjun Das was going on, the deceased, Jokhai Das, Aditya Narain, Ramnehor, Yadunath Prasad and some others were present. All these five appellants came from the side of village Seona. Appellant Salik Ram and Rajdhar possessed lathis. As soon as these five appellants came to the spot, Salik Ram instigated his companions to kill Rajit Ram. Thereupon appellants Brahma Das, Ballabh Das and Ghanshyam Das took out loaded pistols from the folds of their dhoties and fired at Rajit Ram, but the pistol of Ghanshyam Das misfired. Aditya Narain etc. wanted to intervene and Aditya Narain succeeded in snatching the pistol of Ghanshyam Das. Thereupon appellants Brahma Das, Ballabh Das and Ghanshyam Das took out loaded pistols from the folds of their dhoties and fired at Rajit Ram, but the pistol of Ghanshyam Das misfired. Aditya Narain etc. wanted to intervene and Aditya Narain succeeded in snatching the pistol of Ghanshyam Das. Salik Ram and Rajdhar then wielded their lathis, as a result of which Jokhai Das received an injury. Rajit Ram fell down and died on the spot and the assailants escaped towards the south. Aditya Narain dictated a report on the spot to his sister's son, Jagdish Prasad alias Ram Babu. Thereafter Aditya Narain took the dead body of Rajit Ram and Jokhai Das in a tractor to Police Station Sarai Mamrez where he lodged report Ext. Ka 1 at 7 p.m. H. C. Gautam Singh registered the case and prepared a check report. The pistol marked Ext. 1, which was snatched from the hands of Ghanshyam Das, was deposited by Aditya Narain and the memo is marked Ext. Ka 2. Hari Prakash Sharma S.O. and S.I. Ram Nath Singh were present at the thana and the latter held an inquest on the direction of the Station Officer and prepared the necessary papers. The Head Constable noted the injury of Jokhai Das and sent him to Phulpur dispensary for medical examination with the fetter of request marked Ext. Ka 5. After recording the statements of Aditya Narain and Jokhai Das and some others, Hari Prakash Sharma left for the place of occurrence where he recorded statements of the other material witnesses and prepared site-plan. He also recovered blood, a Jareeb (Ext. 12) and the Basta of the Kanungo marked Ext. 11. At a distance of about 15 paces a blood-stained lathi (Ext. 15) was found behind the house of Ram Khelawan. All these articles were duly sealed and the necessary memos were prepared. The accused persons were not available" They surrendered afterwards and then Hari Prakash Sharma completed the investigation and submitted a charge-sheet on 28-6-74. 3. No Doctor was available at Phul-pur and, therefore, Jokhai Das was brought to T. B. Sapru Hospital where he was examined by Dr. S.N. Purwar on 14-6-74 at 11-30 a.m. The doctor found that Jokhai Das had a traumatic swelling around the whole of his left wrist joint. 3. No Doctor was available at Phul-pur and, therefore, Jokhai Das was brought to T. B. Sapru Hospital where he was examined by Dr. S.N. Purwar on 14-6-74 at 11-30 a.m. The doctor found that Jokhai Das had a traumatic swelling around the whole of his left wrist joint. X'ray was advised and in the opinion of the doctor the injury had been caused by some blunt object and was about a day old. Dr. B. N. Khanna of the same hospital took the X'ray photograph and submitted a report to the effect that he had found a fracture of the styloid process of the lower end of left radius and this injury of Jokhai Das was therefore reported to be grievous. Dr. O. P. Gupta of Moti Lal Nehru Hospital did the post-mortem examination of the body of Rajit Ram on 14-6-74 at 2-15 p.m. The doctor found one lacerated wound 8 cms. above the right ear, one lacerated wound 4 cms. behind injury no. 1 and one lacerated wound on the back of scalp transversely. There was one gun shot wound of entry on the front of outer surface of right thigh 15 cms. below iliac crest and one gun shot wound of exit above and in front of injury no. 4. There was another gun shot wound of entry 4 cms. above and in front of the right anterior-superior iliac spine. Both the gun shot wounds of entry had blackening and inverted margins. On internal examination the doctor found a fissured fracture 20 cms. in length of frontal and occipital bones near mid line with subdural haematona on the top of brain. The peritoneum was injured under injury no. 6 and contained clotted blood. There was a punctured wound on small bowel through and through its wall and one shot was recovered from the mesentery. In the opinion of the doctor, death was due to shock and coma and death could have taken place on 13-6-74 at 5 p.m. 4. All these five appellants denied the whole of the prosecution case. According to them, no measurement was being done on 13-6-74. Appellant Rajdhar said that he had heard about the murder having been committed at some other place some time in the night. All the appellants pleaded that they had been falsely implicated at the instance of Shyam Surat Upadhya. All these five appellants denied the whole of the prosecution case. According to them, no measurement was being done on 13-6-74. Appellant Rajdhar said that he had heard about the murder having been committed at some other place some time in the night. All the appellants pleaded that they had been falsely implicated at the instance of Shyam Surat Upadhya. They also suggested that Jokhai Das had no injury and that a fictiti ous injury report had been obtained under the influence of Sri Salig Ram Jaiswal, who happened to be the Health Minister in the U. P. Government. Similarly appellant Brahm Das suggested that he had litigations with Aditya Narain, who was on friendly terms with Shyam Surat Upadhya. Appellant Ballabh Das said that P. W.s. Ramnehor and Yadunath belonged to the party of Aditya Narain. He further said that the Harijans and pasees were inimical to the deceased. Appellant Ghanshyam Das said that he had litigations with Aditya Narain and that Ramnehor had given evidence against him. The remaining two appellants also said that they had litigations with Aditya Narain and his relations. Thus in brief, all these appellants suggested that they had been implicated due to enmity and that all the prosecution witnesses had deposed against them due to enmity and party feeling. The learned Sessions Judge, after examining the evidence of the prosecution, came to the conclusion that all the four eye witnesses were interested ones and that there was no immediate motive for the appellants to commit the murder of Rajit Ram. He also held that the deceased had other enemies. Regarding the main occurrence, the learned Sessions Judge found the case of the prosecution to be substantially true and therefore arrived at a finding of conviction as noted above. The learned counsel for the appellants assailed this finding of conviction on two main grounds. Firstly, it was contended that because all the eye witnesses were interested persons, their statements should not have been accepted by the trial court without any corroboration from some independent source ; and the second contention was that the story of the prosecution, suffered from some inherent improbabilities and was contrary to the medical evidence, and therefore, deserved to be rejected. 5. 5. Before referring in detail to the arguments advanced from the side of the appellants, a few words may be said about the legal position with regard to the appreciation of evidence, particularly when the eye witnesses examined by the prosecution are interested persons. Our attention was drawn to the latest pronouncement of the Supreme Court contained in the case of Badri v. The State of U. P., AIR 1975 SC 1985 ., The relevant portion, which may be reproduced here, is as follows:- "In case where a murder takes place in a village where there are two factions bitterly opposed to each other, it would be idle to expect independent persons to come forward to give evidence and only partisan witnesses would be natural and probable witnesses to the incident. In such a case it would not be right to reject their testimony out of hand merely on the ground that they belonged to one faction or another. Their evidence has to be assessed on its own merits." Their Lordships referred to another case on the subject, namely, Raghubir Singh v. State of U. P., AIR 1971 SC 2156 . On behalf of the State much reliance was placed on these observations, and it was argued that only because all the eye witnesses in this case happened to be partisan, their testimony should not be discarded. On the other hand, from the side of the appellants it was urged that if the witnesses are interested persons, their testimony should not be accepted without corroboration from independent source. The question which may arise in these circumstances is as to how these two apparently inconsistent principles of law for the appreciation of evidence, as laid down by the Supreme Court, should be reconciled. It seems to us that there is one fundamental principle which has to be applied in the case of appreciation of evidence in a criminal case, namely, that the story as set up by the prosecution has to be scrutinised and it has to be determined whether the story is natural and probable. If the story does not stand this test and is such that the reasonable mind would accept it, such a story will have to be rejected however independent the witnesses may be. If the story does not stand this test and is such that the reasonable mind would accept it, such a story will have to be rejected however independent the witnesses may be. Thus, in other words, if the story as set up by the prosecution is found to suffer from some inherent improbabilities, the question whether the witnesses are independent or partisan will be of practically no importance, simply because such a story will be rejected even if the witnesses are independent. But if the story does not suffer from any inherent weaknesses and the witnesses are of partisan character, the court will be on its guard and will scrutinise the evidence with due care and caution. In such a case, therefore, questions like delay in the F.I.R., withholding of independent witnesses, unfairness of investigation will certainly assume some importance. In another case Ravalappalli Kondaiah v. State of Andhra Pradesh, AIR 1975 SC 216 this rule of caution was laid down in the following words:- "............We cannot overlook the fact that all the eye witnesses were highly interested in the prosecution...... ...................... While such witnesses never fail to denounce the real culprits, they cannot be said to be absolutely immune from the tendency of roping in some innocent persons along with the guilty.................... As a matter of caution, therefore, the Court should seek some assurance of this interested evidence from independent source qua each of the accused." Regarding the principle to which reference was made by the learned counsel for the State, as laid down in the case of AIR 1975 SC 1985 , we may point out that for the application of this principle, two points should be borne in mind. Firstly, it should appear from the record that in that particular village there are two factions bitterly opposed to each other. Secondly, due emphasis should be laid on the word "merely." It is true that the statement of a witness will not be thrown out merely because he happens to be a man of partisan character. But, as has been seen above, if there are other circumstances to show that there was possibility of fabrication and concoction, or that the prosecution had deliberately withheld independent evidence or that the story as related by such partisan witness or witnesses has some inherent weaknesses, we think that in such a case the prosecution cannot be allowed to succeed. 6. 6. In the light of these observations, we have therefore to judge whether the story, as set up by the prosecution, is really a natural and probable version and whether it is fully supported by the circumstances and probabilities. It need not be repeated that admittedly all the eye-witnesses in the instant case are interested persons. A clear finding to this effect has been recorded by the learned Sessions Judge and we need not dilate on this aspect, simply because this finding has not been challenged on behalf of the State in any manner. Now, therefore, the other question is whether the story related by these eye-witnesses is to be accepted or not. As noted above, the main attack from the side of the appellants was that the story was contradictory to the medical evidence and that it differed from the story set up in the F.I.R. in material particulars. In support of this contention, the following points were raised on behalf of the appellants:- (1) The deceased had as many as three serious lathi injuries, but the F.I.R. does not make any mention of a lathi beating having been given to the deceased. (2) Only two gun shot wounds of entry were found on the body of the deceased but the F.I.R. says that six or seven shots were fired by three of the culprits all of a sudden. (3) Two gun shot wounds, namely, injuries nos. 4 and 5 as mentioned in the post-mortem examination report could not have been caused while the victim was standing. (4) The injury said to have been caused to Jokhai Das in the same marpit was not a lathi injury and in any case this injury could not have been caused in the circumstances set up by the prosecution. (5) The story of snatching of Ghan-shyam Das's pistol by Aditya Narain was highly improbable. (6) The investigation was tainted and that the genuineness of the F.I.R. was open to question. We may now take up these points one by one. (5) The story of snatching of Ghan-shyam Das's pistol by Aditya Narain was highly improbable. (6) The investigation was tainted and that the genuineness of the F.I.R. was open to question. We may now take up these points one by one. In order to appreciate the first point, it may be necessary to .reproduce some relevant sentences of the F.I.R. :- (i) "............Salik Ram urf Debai putra Mathura Das Pande, Rajdhar Shukla putra Satya Narain Shukla, lathi liye huye aye........." (ii) ".........Mere chhotey bhai Rajit Ram ke nazdeek akar, ek rai hokar Salik Ram ne lalkara ki maro sale ko janse, bachne na pawe, ki isi par Brahma Das Pandey, Ballabh Das tatha Ghanshyam Das............eka ek Rajit Ram par 6-7 fayar kiya.........Rajit Ram goli lagne se gir gaye............" (iii) ".........Main wa maujood Sabhi log bachne ke liya daur pare aur lalkara to Raj Dhar Shukla tatha Salik Ram ne lathiyon se mara jisse Jokhai Das ko bhi chot ayee........." (iv) "..........Mulziman...... dakshin ki wor bhag gaye. Rajit Ram usi jagah mar gaye. Unko goli se dayen raan par, sir men, pet ki dahini kokh men choten ayee hain............" A plain reading of the relevant portion of the F.I.R. will go to indicate that six or seven shots were fired at Rajit Ram by three of the culprits and when the reporter and others wanted to intervene, appellants Rajdhar and Salik Ram wielded their lathis causing injuries to Jokhai Das also. Now the argument on behalf of the State was that the use of the word "also" should be interpreted to mean that lathi injuries were caused to Jokhai Das and also to Rajit Ram. The learned Sessions Judge seems to have accepted this interpretation, although the judgment does not clearly indicate by what sort of reasoning he has arrived at the conclusion that the lathi injuries were caused to Rajit Ram also by appellants Rajdhar and Slaik Ram. We have carefully considered this line of reasoning and in our opinion, this interpretation is not acceptable for two reasons. We have carefully considered this line of reasoning and in our opinion, this interpretation is not acceptable for two reasons. Firstly, there seems to be no justification for making an assumption that causing of any lathi injury to Rajit Ram by these two appellants is necessarily implied in the description given in the F.I.R. As already noted, a plain reading of the relevant sentence simply goes to indicate that as a result of six or seven shots Rajit Ram fell down and when the reporter and others tried to intervene, appellants Rajdhar and Salik Ram wielded their lathis causing an injury to 'Jokhai Das also. Ordinarily speaking, this word "also" should only mean that besides injuries having been caused to Rajit Ram, an injury was caused to Jokhai Das also. Secondly, the sequence of events, as noted in this sentence, seems to be contrary to this type of interpretation. In this sentence, the first event mentioned is that six or seven shots were fired at Rajit Ram who fell down; thereafter the reporter and others tried to intervene and then Rajdhar and Salik Ram wielded lathis causing an injury to Jokhai Das. Had it been intended to make any mention of lathi injuries having been caused to Rajit Ram, in all probability, it should have first been mentioned that Rajit Ram fell down on receiving gun shot wounds and then he was given a lathi beating; thereafter lathi injury was caused to Jokhai Das when he and others wanted to intervene. The next sentence will make the meaning more clear where in it is mentioned that Rajit Ram received gun shot injuries on his right thigh, head and right side of abdomen. Obviously this is a wrong description because it is contrary to the story as developed at the trial stage. It is needless to say that from the post-mortem examination report it is evident that no gun shot wound was found on the head at all. In other words, the head had only lathi injuries while the gun shot wounds were on the thigh and the abdomen. The learned Sessions Judge has tried to explain this inconsistency by saying that at the time of marpit it was not possible to mark on which part of the body, lathis had fallen; and therefore Aditya Narain might have thought that the gun shot injuries had been caused on the head also. The learned Sessions Judge has tried to explain this inconsistency by saying that at the time of marpit it was not possible to mark on which part of the body, lathis had fallen; and therefore Aditya Narain might have thought that the gun shot injuries had been caused on the head also. This observation of the learned Sessions Judge seems to be against the evidence on record, inasmuch as Aditya Narain clearly admitted that he saw lathi injuries having been caused to the victim on the head and that he did not see any gun shot wounds being caused to the victim on his head. In view of this clear statement of Aditya Narain, the explanation given by the learned Sessions Judge is erroneous. The learned counsel for the State argued that because the gun shot injuries were of a more serious nature and because the victim had fallen on account of those injuries, the reporter mentioned only the gun shot injuries and that he did not specify that both lathi injuries and gun shot injuries had been caused to the victim on these parts of the body. In our opinion, in view of the clear admission of P.W. 1, this line of approach is equally erroneous. It is true that at the time of marpit, a spectator may not be able to note what injuries had been caused to the victim by any particular type of weapon. But there can be no possible explanation for omitting to mention the weapon itself. If the reporter had not been able to note by what weapon a particular injury had been caused, be could have simply said the injuries had been caused to the victim on such and such parts of the body by such and such weapons. In view of these circumstances, this line of reasoning does not appeal to us. In this very connection, the entries made in the inquest report should also be noted. In the inquest report, it is mentioned that the victim was killed as a result of gun firing. In the end, it is mentioned that in the opinion of the Panches, death of the victim was due to gun shot wounds. The significant thing to be noted is that no lathi beating whatsoever is mentioned in the inquest report. This inquest report was prepared in the presence of Aditya Narain and Jokhai Das. In the end, it is mentioned that in the opinion of the Panches, death of the victim was due to gun shot wounds. The significant thing to be noted is that no lathi beating whatsoever is mentioned in the inquest report. This inquest report was prepared in the presence of Aditya Narain and Jokhai Das. The learned Sessions Judge has pointed out that because the Punches had not seen the occurrence and because the victim was supposed to have died on account of fire-arm injuries, no lathi beating was mentioned. The Panches may not be eye witnesses but it is borne out from the evidence that at least two of the eye witnesses, namely, Aditya Narain and Jokhai Das were present when the inquest report was prepared. Section 174 of the Code of Criminal Procedure requires that the Police Officer holding the inquest should enquire about the weapon or instrument which had caused the injury. The relevant portion of subsection (1) of Section 174 runs as follows:- ".....................,........, shall make an investigation and draw up a report of the apparent cause of death, describing such wounds, fractures, bruises and other marks of injury as may be found on the body, and stating in what manner, or by what weapon or instrument (if any), such marks appear to have been inflicted." This provision of law, therefore, enjoins on the Police Officer that he should enquire about the weapon or instrument used for causing the injury. It may well be that the Police Officer is sometimes not able to find out the weapon or weapons which caused the injuries simply because he is not an expert. If this is so, the Police Officer will simply say in the inquest report that the death was due to injuries. But in a case where the Police Officer is making a mention of the weapon the omission of the other weapon cannot be lightly brushed aside. After all the mentioning of the use of a fire arm must be based on some enquiry or some information. In these circumstances therefore, the omission to mention the use of lathi, particularly when two of the eye witnesses were present, has its signi- ficance. After all the mentioning of the use of a fire arm must be based on some enquiry or some information. In these circumstances therefore, the omission to mention the use of lathi, particularly when two of the eye witnesses were present, has its signi- ficance. The cumulative effect of all the facts and circumstances therefore is that the case of the prosecution, as it stood at the First Information stage and till the time of investigation was, that Rajit Ram had received gun shot wounds only. The absence of use of lathi on the body of the victim appears to us to be a serious lacuna in the prosecution case and adversely affects the statements of the eye witnesses. 7. Coming now to the second point, it is quite obvious that only two gun shot wounds of entry were found on the body, leading thereby to the conclusion that only two shots were fired at the deceased. On the contrary the F.I.R. says that three of the culprits took out loaded pistols from the folds of their dhoties and immediately fired six or seven shots at the deceased, but the pistol of Ghanshyam Das misfired. When the eye witnesses were questioned on this point, they had to admit that only two shots were fired in the beginning but in order to make the story consistent with the F.I.R., the witnesses had to change their stand and they came forward to state that three or four shots were fired at the victim after he had fallen. When P.W. 1 was questioned, he simply made a mess of the whole thing. He wanted the court to believe that his F.I.R. and the story developed at the trial stage were both correct. As already noted, Aditya Narain admitted that he did not see any gun shout wound having been caused to the victim on his head and when he was confronted with the relevant sentence in the F.I.R. he said that it was correct. He was also confronted with the other sentence according to which, three of the culprits took out loaded pistols and suddenly fired six or seven shots. It is obvious that this description in the F.I.R. nowhere indicates that two shots were fired in the beginning and when the victim fell down three or four more shots were fired. He was also confronted with the other sentence according to which, three of the culprits took out loaded pistols and suddenly fired six or seven shots. It is obvious that this description in the F.I.R. nowhere indicates that two shots were fired in the beginning and when the victim fell down three or four more shots were fired. On the contrary, this trend of the F.I.R. should ordinarily lead to the conclusion that six or seven shots were fired by three of the culprits in quick succession and almost at one and the same time. All the witnesses were questioned on this aspect of the matter and they could not give any satisfactory explanation as to how they had stated before the investigating officer that six or seven shots were fired by three of the culprits all of a sudden. The witnesses also could not consistently state at what stage the other three or four shots were fired and at what stage the lathis were wielded and again at what stage Jokhai Das etc. intervened in this marpit. Thus in brief, it is not at all possible to reconcile this description of the F.I.R. with the story as it had been developed at the trial stage. The learned Sessions Judge, after considering this aspect of the matter, did come to the conclusion that only three shots must have been fired in the beginning and one shot misfired. He definitely came to the finding that the witnesses had wrongly stated that four or five shots were fired after Rajit Ram had fallen. He also concluded that Jokhai Das had wrongly stated that Brahma Das and Ballabh Das re-loaded their pistols and fired again. The learned Sessions Judge then himself posed a question as to why six or seven shots were mentioned in the F.I.R. and the answer given by him is that because there were six visible injuries on the body of Rajit Ram, Aditya Narain thought that six, or seven shots must have been fired. But if the eye witnesses claimed to have seen the use of lathi by at least two persons on the victim, it is difficult to understand how Aditya Narain and the other eye witnesses concluded that all the injuries had been caused by gun shots only. But if the eye witnesses claimed to have seen the use of lathi by at least two persons on the victim, it is difficult to understand how Aditya Narain and the other eye witnesses concluded that all the injuries had been caused by gun shots only. At any rate, this much is evident that the firing of six or seven shots at the victim is absolutely incorrect. If the witnesses were simply playing on their imagination so as to attribute all these injuries to fire arms, it must be very difficult to hold that these witnesses had really seen the occurrence. 8. Injuries nos. 4 and 5 as mentioned in the postmortem examination report are gun shot wounds of entry and exit caused by one shot. Gun shot wound of entry was on the front outer part of the right thigh 15 cms. below the iliac crest, while the gun shot wound of exit was just above this injury almost directly vertical in direction. The question therefore is whether such an injury could have been caused by a gun shot while the victim was standing. Unfortunately the doctor was not questioned on the point. The only explanation, which seems to have been offered by the learned Sessions Judge, is that because Rajit Ram was rather a tall man about 6 ft. in height while the shooters were men of average height, such an injury was possible in standing position. The learned Sessions Judge has not mentioned what he actually means by 'average height'. However assuming that the height of the shooters was about 5-1/2 ft., we do not thing that this difference of 6" in height was such an appreciable difference as to make it possible for a shooter to cause an injury in this manner. The significant point which has escaped the attention of the learned Sessions Judge is that the shot which was fired on the thigh did not meet any obstruction so that there might be any possibility of the shot having deflected. According to the prosecution story, the shooters took out the loaded pistols from the folds of their dhoties and fired the weapons keeping them near their hips. According to the prosecution story, the shooters took out the loaded pistols from the folds of their dhoties and fired the weapons keeping them near their hips. Taking into consideration the fact that the victim was about 6" taller than the shooters, we do not think that such type of a vertical injury was possible unless it be believed that all the shooters fired their weapons with the barrels almost in a perpendicular position. From the mere fact that the victim was about 6" taller than the shooters, it will be most unsafe to infer that the wounds of entry and exit could be almost vertical while the victim was standing. On the other hand, such an injury was more likely to have been caused after the victim had fallen down. The story of firing six or seven shots has been discarded by the trial court. In this very connection it is also to be noted that although as many as three persons are said to have fired at the victim, both the injuries were caused on almost the same part of the body. There is, therefore, every likelihood that both these injuries were caused to the victim probably by one fire only. In any view of the matter, we are not going to believe that injuries nos. 4 and 5 could have been caused while the victim was standing. The only injury said to have been caused to Jokhai Das was a traumatic swelling about (sic) in width around the whole of the circumference of the left wrist joint. The injury was X'rayed and a fracture was also detected. According to the doctor, no abrasion or laceration was found around this injury. The doctor also said that if such an injury is caused by a blunt weapon causing a fracture, it should usually have a considerable amount of bruising of the surrounding and underlying tissues. If this was the position, the doctor should have ' further been questioned as to how in this particular case, he was of the opinion that this injury had been caused by a lathi, simply because in this injury no laceration or abrasion was found near about the injury. We were referred to the relevant observations by Modi in his Medical Jurisprudence and also to some other similar observations in other text books of Medical Jurisprudence. We were referred to the relevant observations by Modi in his Medical Jurisprudence and also to some other similar observations in other text books of Medical Jurisprudence. It was said on behalf of the State that the absence of bruising did not necessarily mean that lathi had not been used. We, however, do not consider it to a clinching circumstance. But apart from this, learned counsel for the appellants also pointed out that inspite of this fracture Jokhai Das never came to Allahabad after X'ray examination. It was also pointed out that Jokhai Das did not get his injury examined at Phulpur and that the letter of request was first addressed to Medical Officer of Phulpur dispensary, but subsequently that relevant portion in the letter was struck off and the name of Medical Officer, Beli Hospital, Allahabad was mentioned. The suggestion on behalf of the defence was that a fictitious injury report was obtained, because Medical Officer of Beli Hospital (now T.B. Sapru Hospital) could be influenced upon while the doctor of Phulpur was not amenable to such an influence. We need not refer to these points, but this part of the prosecution story appears to us to be improbable for another reason. According to the story given in the F.I.R., as many as two persons wielded lathis when Jokhai Das and others tried to intervene. What appears to be improbable is that although two persons wielded lathis, yet the only injury caused was a swelling around the left wrist and no other person, who tried to intervene, received any injury. This aspect of the matter therefore may lead to a reasonable suspicion that this injury was not received in the manner suggested by the prosecution and that this in jury was simply utilised by the prosecution to make out a case for the presence of Jokhai Das. 9. The story of snatching the pistol was attacked on behalf of the defence on the ground that PW 1 happens to be an old man aged about 70 years, while appellant Ghanshyam Das is a young man aged about 25. It was argued that it was impossible to believe that this old man of 70 could succeed in snatching a pistol of this young man of 25. It was argued that it was impossible to believe that this old man of 70 could succeed in snatching a pistol of this young man of 25. On the other hand, the learned counsel for the state pointed out that because Aditya Narain was seeing his brother being attacked by fire arms, he got very much excited and pounced upon one of the culprits in order to snatch the pistol. It is quite possible that in these circumstances, even an old man may make such an attempt, but the question still remains whether he would really succeed in snatching the pistol when it is in evidence that there were atleast four other persons armed with pistols and lathis. It becomes really difficult to hold that all these appellants, who were equally inimical to Aditya Narain, would permit him to snatch the pistol from one of their companions. Thus, in short, this part of the prosecution story also appears to us to be highly unnatural and improbable. 10. Regarding investigation, the only point brought out in the evidence is that Aditya Narain, brought the dead body on a tractor to the thana and from the thana he came to Allahabad with the dead body. On the other hand, there is a note in the case diary to the effect that the spot was inspected by the investigating officer in the morning of 14-6-73 in the persence of the reporter and others. The investigating officer, however, deposed that the reporter was not present. When he was asked to reconcile these two contradictory versions, he came forward with a curious explanation. He said that because Ram Babu, who is the scribe of the report, was present at the time of the inspection of the spot, he wrongly considered Ram Babu to be the complainant. It is of course very difficult to believe that an experienced police officer, who was conducting investigation in a serious crime would commit such a mistake so as to think that the scribe of the report was really the complainant. The investigating officer was referred to the statement of Ram Babu himself, as recorded at the investigation stage. In that statement Ram Babu said that he along with Aditya Narain came back to the village. We have then the statement of S.I. Ram Nath Singh (P.W. 15) who held the inquest. The investigating officer was referred to the statement of Ram Babu himself, as recorded at the investigation stage. In that statement Ram Babu said that he along with Aditya Narain came back to the village. We have then the statement of S.I. Ram Nath Singh (P.W. 15) who held the inquest. This witness stated in cross-examination that he went to the spot with the complainant and others. In the next sentence of his cross-examination, P.W. 15 described the complainant as Aditya Narain. It cannot, therefore, be said that P.W. 15 also did not know who was really the complainant. Now therefore these facts appearing in the evidence of the prosecution may reasonably lead to the conclusion that the complainant was present in the village on the morning of 14-6-74. The inquest concluded at 8 p.m. and the dead body was handed over to H. C. Gulab Nath Pande at 9.45 p.m. But he started from the thana with the dead body only at 3 a.m. and the reason given by him was that during this period he was busy searching out an ekka. No ekka was available and therefore the body was brought on the tractor on which the complainant had come to the thana. We find it impossible to believe that although the tractor was available and yet the Head Constable wasted more than five hours in searching out an ekka. Thus there was a big gap between the incident and the sending of the dead body and if the reporter was present in the village on the following morning, there seems to be more weight in the defence suggestion that the whole story was fabricated after the investigating officer had come to the spot. Having thus considered all these points raised on behalf of the appellants, the vital question would be whether in these circumstances the statements of the eye witnesses should be believed. The learned Sessions Judge seems to have concluded that there was nothing to show that these eye witnesses had any interest in falsely implicating the accused persons. This remark of the learned Sessions Judge is contrary to his earlier observation according to which, these eye witnesses were interested in the deceased and atleast two of them, namely, Aditya Narain and Jokhai Das were hostile to the accused persons. This remark of the learned Sessions Judge is contrary to his earlier observation according to which, these eye witnesses were interested in the deceased and atleast two of them, namely, Aditya Narain and Jokhai Das were hostile to the accused persons. The approach of the learned Sessions Judge seems to be that because from the statement of the Kanungo (PW 4), it was established that the occurrence took place in day time and because from the recoveries of blood and Jareeb etc. it was established that measurement was going on and that the occurrence took place at that very spot, the statements of the eye witnesses were believable. P.W. 4 was treated hostile by the prosecution meaning thereby that the prosecution itself alleged that this witness was not reliable and was not giving a true statement. The learned Sessions Judge has also pointed out that this Kanungo made a number of incorrect statements. In our opinion it was not correct to seek corroboration of these interested eye witnesses from a person who had himself been condemned by the prosecution as an unreliable witness and who, according to the learned Sessions Judge himself, had made a number of incorrect statements. The trial court J relied on a ruling reported as Himachal Pradesh Administration v. Om Prakash, AIR 1972 SC 975 . In this case, it was laid down that the court should firstly ensure that the evidence is legally admissible and then it should be found out whether the witnesses were credible and had no interest in implicating the accused persons. In the earlier part of the judgment the learned Sessions Judge has noted that all these eye witnesses were interested persons. From the mere fact that the incident took place in day time, it cannot possibly be concluded that the eye witnesses had seen the occurrence. In accordance with the principles, which we have mentioned above, the court should first be satisfied that the eye witness account given by the witnesses is really consistent and convincing. Unless it is established that a particular eye witness had really seen the incident, no reliance can be placed on his statement merely because the incident took place in day time. Unless it is established that a particular eye witness had really seen the incident, no reliance can be placed on his statement merely because the incident took place in day time. In the instant case, where the witnesses have deliberately made wrong statements as to the number of gun shots and the type of weapons used, it will be highly unsafe to hold that these eye witnesses had actually seen the incident. On the contrary, if there is a reasonable suspicion that the story of snatching of pistol and injury having been caused to Jokhai Das in the same marpit is a fabrication, we are left only with one inference, namely, that this story was invented by the prosecution to ensure the presence of at least two eye witnesses, namely, Aditya Narain and Jokhai Das. The learned Sessions Judge has also relied on the ruling reported as S. P. Shinde v. State of Maharashtra, 1974 CrLJ SC 674. In this case it was pointed out that discrepancies might occur pertaining details as to the precise number of blows given by the assailant, the standing or lying posture of the victim at the time of the assault and that such variations crept in because there were always natural differences in the faculty of different individuals in the matter of observation. A distinction has to be drawn between details which are unimportant and do not affect the merits of the case and the details which go to the very root of the prosecution case. As has already been noted above, the eye witnesses may not be able to note how many injuries were caused by which weapon and whether they were caused while the victim was standing or in a lying posture. But in our opinion this principle cannot be made applicable to the instant case where there is total omission of one weapon, namely, lathi. Moreover, it has been found by the learned Sessions /Judge as a fact that the eye witnesses had wrongly given the number of shots. It cannot, therefore, be said that these discrepancies are only minor details about which the witnesses might have made mistakes. 11. Moreover, it has been found by the learned Sessions /Judge as a fact that the eye witnesses had wrongly given the number of shots. It cannot, therefore, be said that these discrepancies are only minor details about which the witnesses might have made mistakes. 11. Having thus considered the entire evidence and the circumstances and probabilities, we are of the opinion that because all the eye witnesses are interested persons and because they had not been able to relate a consistent and convincing story, it would not be possible to arrive at a finding of conviction. Even the formal witnesses, who were examined by the prosecution to state about the various recoveries, were found by the learned Sessions Judge to be interested persons; and if the investigation has also not been found to be fair, it would not be safe to rely on even those recoveries on the basis of which the prosecution attempted to fix the time and place of the occurrence. 12. In the result all the three appeals are allowed. Conviction and sentences of all the appellants are hereby set aside. They are in jail and shall be released forthwith unless wanted in some other case. Reference for confirmation of death sentences is hereby rejected. Appeals allowed.