JUDGMENT S.K. Kaul, J. - This Sessions Trial arose out of a murder committed of Sri Saheb Singh, Station Officer, Maigalgunj. According to the prosecution story, Saheb Singh, accompanied by Gajadhar Prasad Tewari, Sub-Inspector, had gone to the Court of Addl. Sessions Judge, Kheri, in connection with a case registered u/s 395/397 IPC, State v. Ram Chandra and others. Constable Brij Kishore Misra, who lodged the F. I. R. which set the law in motion, so far as this murder is concerned, is also said to have accompanied the. aforesaid officers. After finishing the work at Kheri on 2541975 these three persons had boarded bus no. 2193 U. S. H. and were coming back to Police Station Maigalgunj. The bus stopped at Aurangabad Bus Stand and then left aforesaid Bus Stand at about 7.30 p. m. and when it reached tiraha, situated on Lakhimpur Road, Sub-Inspector, R. P. Sharma, and Constable Ram pass, who were returning from their Halqa, boarded this bus at that tiraha. Apart from these two persons, Ram Gopal, Mani Ram, Ram Prakash, Atma Ram and Aziz also boarded this bus. Out of these persons, Atma Ram, Mani Ram and Ram Prakash, were implicated in this murder. It is alleged that when this bus reached near Sadariapur at about 8 p. m. Atma Ram asked the driver to stop the bus inasmuch as he wanted the driver to bring from the roof of the bus his balti and plate. According to the prosecution, there was not only light inside the bus both the head-lights of this bus were on. The driver stopped the bus and climbed up the roof. Mani Ram, Atma Ram and Ram Prakash got down from the bus and stood on the back side of the station officer. Atma Ram asked Mani Ram not to miss. Ram Prakash also gave a sign and thereupon Mani Ram took out his country made pistol from the Jhola and is said to have fired at the Station Officer by putting his pistol on the back of the Station Officer The Station Officer shouted in agony also reeled towards Sub-Inspector Tewa(sic) These three accused thereafter starts running away by first coming in the front of the bus of which the head lights were on and then running away towards north in the direction of galiyara. A chase was given to these persons by several persons including Ajay Kumar, Mahesh Singh, Jagdeo Singh, Rajendra Singh Kheoraj alias writer, Ramadhin, Sheo Kumar as well as Sub-Inspector Sharma and Constable Brij Kishore, but in vain. On return from chase Constable Brij Kishore is said to have picked up a fired cartridge from the road. Thereafter, the bus was brought to Maigalgunj where passengers were made to get down and Brij Kishore lodged F. I. R. at P. S. Maigalgunj on the same date at about 8.30 p. m. and also handed over the blank cartridge. Distance between the scene of occurrence and police station is about two and a half miles. The blank cartridge was sealed at the police station and a memo Ext. Ka-14 of the same was duly prepared. Thereafter, Sub-Inspector Tewari and Constable Ram Das on that very bus took Station Officer to Sitapur Hospital. It may be. noted here that initially the (sic) I. R. was taken down u/s 307 IPC. The motive for this crime according to this F. I. R. was that there were strained relations between the deceased, on one hand, and Mani Ram, on the other, in connection with the recovery of brother woman. There were also strained relations between Swami Dayal dacoit, on one hand, and the deceased, on the other and on several occasions Mani Ram had threatened the Station Officer. About two months and twenty-one days ago, the deceased has arrested Ramesh and others u/s 151, Code of Criminal Procedure and had also attached the land which these persons wanted to take possession of. Ramesh and others were in this connection frequently visiting Mani Ram and Ram Prakash. All these three persons were said to have joined in the commission of this crime. Saheb Singh is said to have died on the way to Sitapur with the result that Sub-Inspector, Udai Narain, posted at Kotwali, Sitapur, was deputed to prepare an inquest report which he did in the District Hospital on 26th April, 1975, and after sealing the dead body, he despatched it for autopsy. Autopsy upon the dead body was conducted by Dr. Narendra Singh Uppal, Medical Officer, Incharge P. A. C. Hospital XI B, Sitapur, on 26th April, 1975, at about 11.45 a.m. The following ante-mortem injuries were found upon the dead body : 1. Nine gunshot wounds 1 cm. x 75 cm. Autopsy upon the dead body was conducted by Dr. Narendra Singh Uppal, Medical Officer, Incharge P. A. C. Hospital XI B, Sitapur, on 26th April, 1975, at about 11.45 a.m. The following ante-mortem injuries were found upon the dead body : 1. Nine gunshot wounds 1 cm. x 75 cm. each with inverted margins in an area 10 cm. x 6 cm. over the back of the left chest in the left intra scepular region. 2. Two gunshot wounds 1 cm. x 1 cm. each with inverted margins over the front of the left chest in the infra-clavicular region. The internal examination revealed fracture of 3rd, 4th and 5th on the left side infront and fracture of 7th & 8th ribs on left side behind. There was perforation on the left side containing three pounds of blood clots. Six shots were recovered from the muscles over the left chest. Left lung was perforated. Heart was empty on both sides. Stomach contained two ounces of watery fluid. Both intestines were empty. Death, according to the doctor, was caused due to shock and haemorrahage on account of ante-mortem gunshot injuries which, in his view, were sufficient in the ordinary course to cause death. 2. The information about death of Station Officer, Saheb Singh was conveyed to Maigalgunj which was received at about 12.30 in the night in between 27th April, 1975, and consequently the case was amended as one falling u/s 302 of the Indian Penal Code. Investigation initially was taken up by Sub-Inspector, Kaushik of P. S. Maigalgunj on his return to Miagalgunj from Kheri. He reached Sitapur at about 11.15 p.m. and interrogated Constable Brij Kishore. He interrogated the bus driver and conductor Mohabbat Ali. He inspected the bus and he found a lot of blood on the seat as well as on the back. He took possession over blood-stained rexin of the back, blood stained rexin of the the seat as well as stitiching. He sealed them in a bundle and prepared a memo. Raja Ram driver was said to have given him from the roof of the bus a bicycle, a balti, and a plate which were taken possession of by Kaushik who prepared a memo of the same. He interrogated Sub-Inspector Gajadhar Prasad and thereafter investigation was taken over per orders of the Superintendent of Police by Sri Ram Khelawan, Circle Inspector. Raja Ram driver was said to have given him from the roof of the bus a bicycle, a balti, and a plate which were taken possession of by Kaushik who prepared a memo of the same. He interrogated Sub-Inspector Gajadhar Prasad and thereafter investigation was taken over per orders of the Superintendent of Police by Sri Ram Khelawan, Circle Inspector. He went to Maigalgunj and interrogated Sub-Inspector, R. P. Sharma. He deputed police personnel to search out the accused. He then went to the spot, accompanied by constable Brij Kishore, and prepared a (sic)-plan. He found blood in the con(sic) portion of the road. He took possession over blood-stained concrete and near by plain earth, and after sealing them in separate containers, he prepared a memo of the same. He interrogated in the evening Ajay Singh, Rajendra Singh, Mahesh Singh, Jagdeo, Ramadhin and Kheoraj. He also interrogated Natthu Nai by going to Basgawan. A search for the accused continued but in vain. He then gave a report for taking proceedings under Sections 82/83 Code of Criminal Procedure against the accused. It appears that while accused Mani Ram surrendered in Lucknow, accused Atma Ram surrendered in Kanpur, while accused Ram Prakash surrendered in Philibhit. These persons were made bapurdah and a report for their indentification was duly made by investigating officer. All these accused were put up for test indentification in this way that while Mani Ram was put up for indentification on 14th May, 1975, Ram Prakash and Atma Ram were put up for indentification on 16th June, 1975. Witnesses sent to identify Mani Ram were Ajay Kumar, Sheo Kumar, Rajendra Bahadur Singh, Mahesh Singh, Kheoraj, Jagdeo Singh and Ramadhin. Out of them excepting Khebraj and Jagdeo Singh, the remaining witnesses correctly indentified him. The same set of witnesses were sent to identify the remaining two accused. Out of them excepting Mahesh Singh and Rajendra Bahadur, remaining witnesses identified Ram Prakash, Atma Ram, however was correctly identified by Sheo Kumar Singh and Jagdeo Singh, while Rajendra Bahadur, Mahesh Singh, Ramadhin and Ajay Kumar committed mistake in his identification. The investigating officer moved an application in the Court of the Magistrate with a prayer that Mani Ram may be handed over to the police custody. When this application was allowed, Mani Ram was taken into custody by the investigating officer on 16th May, 1975. The investigating officer moved an application in the Court of the Magistrate with a prayer that Mani Ram may be handed over to the police custody. When this application was allowed, Mani Ram was taken into custody by the investigating officer on 16th May, 1975. On 17th May, 1975, Mani Ram got recovered at his instance a country made pistol Ext. 9 and two live cartridges Ext. 16 which were kept in a Jhola Ext. 17 which were wrapped in a cellophane paper Ext. 18 and which were inside the ground in the field of Natthu Nai which had sugar cane crop. This recovery was witnessed by public witnesses. The property was sealed and a memo was duly prepared. Thereafter the recovered blank cartridge and the pistol were sent to the Ballistic Expert for report. The report of the Ballistic Expert contained in Ext. Ka-10 was that empty cartridge was fired by the same pistol, namely, Ext. 9. After completing investigation, a charge-sheet was submitted against the present Appellants and Ram Prakash, and on that basis, while Mani Ram was asked to stand his trial u/s 302 IPC simpliciter, Atma Ram and Ram Prakash stood trial u/s 302/34 IPC. 3. We are not concerned with defence of Ram Prakash as he secured an acquittal at the hands of the learned Additional Sessions Judge, Kheri, and no Government Appeal against the order of acquittal has been preferred. 4. The defence of Atma Ram was complete denial. His case was that witnesses knew him from before and that he was also shown to the witnesses after his arrest. He also contended that Mahadeo was his grandfather. Ram Gopal had fought election of Pradhanship against his grandfather, Mahadeo. His grandfather had won that election. Ram Gopal, who was Pradhan of Sadarpur had got him implicated in this case. He also contended that there was quarrel between Jagdeo Prasad and Sheo Kumar secretary and that is why he was implicated. Finally he contended that identifying witnesses knew him from before. 5. The defence of Mani Ram was complete denial. According to him, Swami Dayal and Jai Dayal, son of Ram Bharosey used to reside in his village. Jai Dayal used to keep a shop of cloth at Maigalgunj for 14-15 years. He was also a dalal of the police. His cousin Ram Suchit used to reside in his village. 5. The defence of Mani Ram was complete denial. According to him, Swami Dayal and Jai Dayal, son of Ram Bharosey used to reside in his village. Jai Dayal used to keep a shop of cloth at Maigalgunj for 14-15 years. He was also a dalal of the police. His cousin Ram Suchit used to reside in his village. He had a Jhagra with Ram Suchit and Ram Suchit got him implicated through Jai Dayal. He also contended that he was Implicated by Swami Dayal, who was a badmash and who had threatened to implicate him in any case. In the end he contended that identifying witnessess knew him from before and that he was also shown to them. 6. The learned Additional Sessions Judge found that the prosecution story was fully made out as against both these Appellants and that at the instigation of Atma Ram, Mani Ram had actually shot at deceased Station Officer who ultimately died on account of those injuries. Having come to that conclusion while he awarded death sentence to Mani Ram, he awarded imprisonment for life to Atma Ram u/s 302/34 IPC. He also made a usual reference for confirmation of death sentence awarded by him to Mani Ram. It is in these circumstances that Criminal Appeal No. 701 of 1976 filed by Atma Ram, Cr. Appeal Nos. 728 and 815 of 1976 filed by Mani Ram and Capital Sentence Reference No. 15 of 1976, all of which were heard together, have come for disposal before us. 7. Before taking up the question of motive and discussing the testimony of eye-witnesses examined in this case, we would like to mention certain glaring circumstances and deliberate suppression of material witnesses, documents by the prosecution which go to show that this murder went unnoticed and the prosecution was groping in the dark regarding the true assailant. In this case, if the murder really took place inside this bus, the most natural witnesses, who could have supported the prosecution both on the question of time, place as well as manner of occurrence together with the names of the assailants, if known to them, have not been examined in this case. What is more, they were not even cited as witnesses in the charge-sheet. Those two witnesses are driver of this bus as well as conductor-cum-cleaner of this bus. What is more, they were not even cited as witnesses in the charge-sheet. Those two witnesses are driver of this bus as well as conductor-cum-cleaner of this bus. The presence of these two witnesses has come out in the statement of practically each and every so-called eye-witnesses. Indeed, these two witnesses were interrogated. We would not be far from correct in drawing an inference that since they had not supported the prosecution story, they were not made witnesses even in the charge-sheet. No satisfactory explanation was given why these two important witnesses, whose presence could not be doubted, were withheld. Then again, the evidence is that at the time of this occurrence, apart from the deceased in this bus there were Sub-Inspector, Gajadhar Prasad Tewari, Constable Brij Kishore, Misra, Sub-Inspector R. P. Sharma, and Constable Ram Das, but no attempt was made to file the necessary G. D. entries to show whether Constable Brij Kishore Sub-Inspector Gajadhar Prasad Tewari, Sub-Inspector R. P. Sharma and Constable Ram Das had gone on their respective deputed work and were in the process of returning. After all, the scene of occurrence, according to the prosecution, lies at a distance of 2.5 miles from P. S. Maigalgunj. It is true that police station Maigalgunj, lies on the way if one goes from the scene of the occurrence to the District Hospital, Sitapur, but then if this F. I. R. was made out at Maigalgunj by a police constable of that very police station, it would not be difficult in these circumstances to ensure the presence of a large number of police personnel so that in case public witnesses for one reason or the other do not support the prosecution, this murder of the Station Officer should not be left to be decided on the basis of abscence of direct evidence. Then again, another glaring circumstance is that inspite of the presence of Station Officer, who normally would not be without his revolver as well as presence of at least two sub-Inspectors, one of whom was deputed to a school and was also investigating a dacoity, and yet he is shown to be without his revolver. There is another Sub-Inspector, Gajadhar Prasad Tewari and he too, curiously enough, is without any revolver. The remaining two Constables are to be shown without any musket. There is another Sub-Inspector, Gajadhar Prasad Tewari and he too, curiously enough, is without any revolver. The remaining two Constables are to be shown without any musket. As noted above, when these persons are said to have gone out of Police Station Maigalgunj, on their respective duties, there must have been a note made in the G. D., not only regarding their departure, their time of departure as well as the work on which they had been deputed, but it would also have shown whether they had taken with them any arms and ammunition or not. It is too much to hold that Sub-Inspector R. P. Sharma, admittedly on his own testimony, had gone on duty in connection with examination of Aurangabad School and had also in the evening gone to Rampur in connection with investigation of a case, and yet he wants us to believe that he would go without any arm. The prosecution was at the horns of dilemma. It wanted to make some police personnel present at the time of the occurrence so that at least they could support the prosecution story, and yet it wanted to rule out the possibility of anyone of them being armed. The reason for the latter contingency was obvious because if some of these police personnel were armed, it would have been impossible for the prosecution to explain why Mani Ram would have chosen such a time and place to commit this murder armed with a countrymade pistol when inspite of the first instinct of self preservation and safety he could have anticipated being shot down by the police personnel. Indeed, he would not have committed this crime in the presence of arms. That is why very casually the story was given out in the course of trial that there was only one revolver at the police station with the result that none of these officers stationed at this police station, though going on duty and supposed to go with their revolvers, were without arms at the time of the commission of crime. If the prosecution had admitted that some of them were armed, then the question would have arisen why none of them shot at the assailant/assailants. If the prosecution had admitted that some of them were armed, then the question would have arisen why none of them shot at the assailant/assailants. Evidently, no shooting took place from the side of the pursuers and if some of these police personnel were shown to be armed, the absence of shooting would have excluded their presence making the entire story open to doubt. So, the prosecution took an easy course of giving this casual explanation and did not think it worthwhile to get it supported from the G.D. entry of this police station to prove that because of paucity of arms, it was not possible, at least for Sri R. P. Sharma, who had been deputed to invigilator help in invigilation in a school and who was also to do investigation in a dacoity case in Rampur, to go with arms. Finally, the most glaring circumstance, which practically rules out the entire prosecution story and explodes the sanctity of the police papers is to this extent that although the F. I. R. of this case shows its Crime No. 77 u/s 307 IPC the sub-inspector who prepares inquest report and other papers connected with post-mortem, mentioned the time of the FIR and date in the inquest report as 22-15 p.m. 25-4-75. In this very inquest report Ext. Ka-1 on the second page the following phrase appears "Nakal rapat No. 36 Ro. Aam-Samay 22-15 p.m. 25475". The evidence in this case is that the Station Officer had died on the way while being taken to Sitapur Hospital in the bus. We, therefore, do not know what is this crime number and what is this FIR the time of which is 10-15 p.m. which is mentioned in the inquest report. In the other paper prepared at the time of the inquest report Ext. Ka-2 again the time and date of the FIR is 10.15 p.m. 25-4-75. The inquest report actually was prepared on 26th April, 1975. According to Constable Brij Kishore Misra, he left for Sitapur in the same night at about 9 or 9.45 p.m. and returned from there at about 2 or 3 a.m. There is only one FIR of this case and it is said to be crime no. 77 lodged at police station Maigalgunj at about 8.30 p.m. by Constable Brij Kishore Misra. 77 lodged at police station Maigalgunj at about 8.30 p.m. by Constable Brij Kishore Misra. That is not mentioned in the inquest report, and as noted above, we do not know what is that report of FIR mentioned in the inquest report and other paper Ext. Ka-2 which is dated 25th April, 75 at about 10.15 p.m. which finds place in the inquest report, the crime number of which is 36. It may be argued that this might be of Kotwali Sitapur, but as noted above, the evidence is that the bus reached Sitapur, at about 11 p.m. meaning thereby that when this report is said to have been lodged, as shown in the inquest report, no information had been received either at Maigalgunj or at Sitapur that Station Officer had died on the way. This mystery, therefore, which remains unsolved, clearly goes to show that since by that time no FIR had come into existence at Maigalgunj, the Sub-Inspector, deputed to prepare an inquest report and other connected papers with the dead body of the Station Officer, naturally could not show either the crime number of this FIR or the time when this FIR is said to have been lodged. Now, in this FIR itself, it appears that suspicion was also thrown towards one Swami Dayal and that goes to show that the prosecution was groping in the dark because the true assailant was not known and that is why all possible people, who could be suspected to be having a hand in this affair, were being implicated in one manner or the other. In this very connection, we would like to mention that, according to the prosecution, when Brij Kishore Misra lodged this FIR at Police Station Maigalgunj, he also deposited the empty cartridge that was found by him at the spot. The memo Ext. Ka-14 relating to this empty cartridge prepared at the time of its handing over shows that it was sealed in a pocket. The Head Constable Iqtida Husain PW 24 stated as if he at once sealed this cartridge in a pocket when it was deposited by Brij Kishore Misra. He, however, in that very statement mentioned that when Sub-Inspector, Kaushik, came back to police station at about 10.05 p.m. he had handed over the relevant memos, copies of FIR etc. and this cartridge was sealed before him. He, however, in that very statement mentioned that when Sub-Inspector, Kaushik, came back to police station at about 10.05 p.m. he had handed over the relevant memos, copies of FIR etc. and this cartridge was sealed before him. Sub-Inspector, Kaushik, PW 23 also stated that when he returned at the police station at about 10.05 p.m. the head constable had shown to him the empty cartridge. Thus, according to the prosecution itself, the documents showing sealing of cartridge at 9.30 p.m. and the FIR so dictated by Brij Kishore Misra are contradicated by the fact that if it had been indeed sealed, it could not have been shown to Sub-Inspector, Kaushik, again and then sealed. Consequently, if a cartridge found at the spot, as alleged by the prosecution, remains unsealed at the police station where the deceased was posted for sufficient length of time, a doubt is created upon the veracity of the prosecution story regarding finding of empty cartridge on the spot as well as preparation of documents at a proper time. We have noticed above how there was change of timing in the FIR when inquest report is compared with the FIR of this case. Thus, the investigation, from the very beginning appears to have been tainted with the result that it cannot be urged that a prompt FIR was being filed and known assailants were being implicated. Indeed, it appears that in order to fix the guilt upon Mani Ram, it was thought by the prosecution to show that the fired empty cartridge was found on the spot and that later on when the pistol was recovered at the instance of Mani Ram, this fired empty cartridge fitted in with the same pistol as reported by the Ballistic Expert. Indeed, as we shall presently discuss when we take up the recovery of the pistol at the instance of Mani Ram, it was more a planted affair than a voluntary recovery at the instance of the accused. With these preliminary observations, we would discuss the testimony of the witness as examined in this tease as eye-witnesses to connect the accused with the offence. 8. The eye-witnessess happen to be PW 1 Ajay Kumar, PW 4 Sub-Inspector, R. P. Sharma, PW 5 Sheo Kumar, PW 7 Jagdeo Singh and PW 12 Brij Kishore Misra Constable. With these preliminary observations, we would discuss the testimony of the witness as examined in this tease as eye-witnesses to connect the accused with the offence. 8. The eye-witnessess happen to be PW 1 Ajay Kumar, PW 4 Sub-Inspector, R. P. Sharma, PW 5 Sheo Kumar, PW 7 Jagdeo Singh and PW 12 Brij Kishore Misra Constable. These five witnesses can be divided into two categories, namely, PWs 1, 5 & 7 are those witnesses who posed themselves as not knowing either Mani Ram or Atma Ram, with the result that they were sent to identify both these accused in jail. The other two witnesses R. P. Sharma and Brij Kishore Misra come in that set of witnesses who are said to be knowing these two accused from before. We can dispose of the case of Atma Ram straight away because we have no hesitation that he has been implicated falsely and that he was very wellknown to those three sets of prosecution witnesses who were sent to identify him. Atma Ram is tried to be connected with this affair by the fact that, according to the prosecution story, it was on his instigation that Mani Ram had shot at the deceased. Sheo Kumar PW 5 does not say a word as against Atma Ram. He does not say that on alighting, Atma Ram uttered anything which prompted Mani Ram to shoot at the deceased. These three witnesses amongst whom Ajay Kumar did not identify Atma Ram, when being asked to indentify Atma Ram in jail, gave the following statement: Darogha ko Marte dekha tha" The prosecution story is, however, to the contrary. It does not make Atma Ram killer of the Sub-Inspector. It makes Atma Ram instigator. This also creates doubt in the complicity of Atma Ram. Atma Ram admittedly is a clerk in the Office of Maigalgunj Cane Centre. Although Ajay Kumar had not identified Atma Ram, but he admitted that he occasionally used to go to Maigalgunj. He further admitted that his father was Director, Cane Society, and that for the last 4 or 5 years, he was Director of the Cane Society. He then went on to admit that Cane Society of Pipri Aziz is in Mabali Cane Union. He further admitted that when his father was Director, people of Pipri Aziz used to come and vote. He then went on to admit that Cane Society of Pipri Aziz is in Mabali Cane Union. He further admitted that when his father was Director, people of Pipri Aziz used to come and vote. He admitted that when his father fought-the election, Pipri was in that zone, Atma Ram is a resident of Pipri Aziz, but then this witness tried to ignore his knowledge whether Atma Ram was a clerk in the Cane Society or not. The witnesses admitted that Narendra Kumar was married in Pipri Aziz and that he had joined the tilak of Narendra Kumar, but once again he denied having participated in the actual marriage of Narendra Kumar. It is true that it was not put to this witness whether when his father was fighting the election, he had canvassed for him or not, but we can assume that when a father fights election in the same Cane Society in which later on the son also becomes a Director, the son must have canvassed for his father. 9. Sheo Kumar PW 5, apart from frankly admitting that he knew Atma Ram from before, accepted all other material facts. He admitted that there was a Came Centre at Maigalgunj and that in 1954-55 Atma Ram was a clerk in that centre. He admitted that he and father of Atma Ram Chhail Behari, had read together at Aurangabad. He further admitted that his brother, Krishna Kumar was a master at Aurangabad. He also admitted that Atma Ram's brother, Nilkanth, in that very school was at Aurangabad. It is, therefore, a surprising story that this witness knows father of Atma Ram. He knows brother of Atma Ram and evidently he must be having contact with the family of Atma Ram, and yet he wants us to believe that he does not know Atma Ram although, he knew this fact that Atma Ram was a clerk in the Cane Centre of Maigalgunj in 1954-55. We may note here that this person has a shop at Maigalgunj. It is, therefore, impossible to hold that this witness did not know Atma Ram from before. 10. Jagdeo Singh PW 7 admitted that the centre of Maholi Mill was at Maigalgunj. He admitted that he used to take sugar-cane to Maholi. We may note here that this person has a shop at Maigalgunj. It is, therefore, impossible to hold that this witness did not know Atma Ram from before. 10. Jagdeo Singh PW 7 admitted that the centre of Maholi Mill was at Maigalgunj. He admitted that he used to take sugar-cane to Maholi. He denied that he used to go to Maigalgunj centre, but this is a false denial because judicial notice can be taken of this fact that without issuing of cane parchi from a centre, the sugar-cane would not be accepted by mill. If, therefore, the centre of Maholi Mill was Maigalgunj, it is impossible to hold that this witness would not be going to Maigalgunj centre to obtain the parchi. The witness had no option but to deny the fact because admittedly Atma Ram is a clerk in this Maigalgunj Cane Centre. 11. The learned Additional Sessions Judge gave benefit of doubt to Ram Prakash on the ground that if one has to go to Pipri Aziz, one to get down at Sardariapur. The learned Additional Sessions Judge observed that if Ram Prakash got down at Sardariapur from this bus that alone would not make him a co-accused with Mani Ram. About the circumstance that he had run away along with the two accused, the learned Additional Sessions Judge observed that merely because he ran away would not be sufficient to hold that he had found a common intention with Mani Ram. Now, Atma Ram also is a resident of Pipri Aziz. We have held above how per statement of Sheo Kumar PW 5, Atma Ram had not done anything which could not have prompted Mani Ram to shoot at the station officer and that being so, those very reasons would apply in the case of Atma Ram as well for his exoneration. On top of it, when witness knew him from before and when they do not name him in their 161 statements and when these witnesses are sent to identify Atma Ram, the irresistible conclusion that has to be drawn is that Atma Ram had no connection whatsoever with this murder. As a result, we would acquit Atma Ram of the charge punishable u/s 302/34 IPC. 12. We now come to the case of Mani Ram. As a result, we would acquit Atma Ram of the charge punishable u/s 302/34 IPC. 12. We now come to the case of Mani Ram. Against Mani Ram, motive for this occurrence was stated to be this circumstance that daughter-in-law of Natthu had been adbucted. Mani Ram had accompained Natthu and had requested the station officer repeatedly to get the woman recovered. Not only his request had been turned down, but the deceased had actually thrown out Mani Ram from the police station so that Mani Ram had threatened to see the deceased. Ext. Ka-18 is a copy of report no. 19 dated 14th October, 1974, which goes to show that Khushi Ram son of Natthu Lal accompanied by Natthu Lal had made an oral report about the abduction of the wife of Khushi Ram. Constable Brij Kishore Misra can be termed to be a star witness of the prosecution inasmuch as he appears to be omnipresent whenever any incident connected with the accused Atma Ram and Mani Ram on one hand and the deceased on the other, is concerned. Regarding motive as well, he is not only present at the time of this alleged unfortunate incident, but also he is the person who picks up the fired cartridge and also lodges FIR inspite of the presence of so many Sub-Inspectors who had no courage to shoulder the responsibility. Constable Brij Kishore Misra stated on oath that in connection with abduction of daughter-in-law of Natthu Lal, Natthu Lal and Mani Ram had come to the police station. They had requested Station Officer to get the woman recovered, but the Station Officer was not agreeable. Mani Ram started abusing Station Officer whereupon Station Officer had turned him out. He also went on to state that in Durga Hotel, Mani Ram had spoken to two or three persons that Saheb Singh's mind had become bad and he had to be taught a lesson. In cross-examination, he had the audacity to state that when there was altercation between the Station Officer and Mani Ram he was present. He went on to state that Mani Ram had disclosed the name of the person who had to be arrested in that connection, but he had forgotten his name. In cross-examination, he had the audacity to state that when there was altercation between the Station Officer and Mani Ram he was present. He went on to state that Mani Ram had disclosed the name of the person who had to be arrested in that connection, but he had forgotten his name. He then said that when the Station Officer refused to oblige him, Mani Ram remarked that it was his duty to do so, and, if he did not help in the arrest, he would see him. In the first place, it is impossible to believe that a person in senses would try to heard the lion in his own den. We are asked to believe that Maui Ram would have the audacity to threaten a, Station Officer at the police station and that Station Officer would be such a meek person that he would swallow this threat and he would not take any action against Mani Ram. There is no dearth of cases in which even small insult concerning Police Officers takes the shape of implication either u/s 399/402 or in cases of dacoity where unknown dacoits are always there. Here is a case where the deceased does not take any action against Mani Ram, but allows him to go away. The conduct of the Station Officer, if in reality Mani Ram had threatened him, becomes inexplicable, more so, when, according to this witness, whatever he had heard at Durga Hotel, had teen told to the deceased by him about one or 1.5 month previous to this occurrence. We have, therefore, no hesitation in coming to this conclusion that motive adduced in this case for Mani Ram to commit murder of the Station Officer is not only extremely superficial, if there was any such motive, but it appears to be more a shot in the dark rather than to have some strength of reality, more so, when we find that not only in the F. I. R. but in the 161 statement of this witness it was given out as if relations between Swami Dayal and the deceased were also strained. As noted above, we fail to understand why relationship of the deceased with Swami Dayal was considered important enough to be mentioned not only in the F. I. R. but to have found place in 161 statement of this witness. As noted above, we fail to understand why relationship of the deceased with Swami Dayal was considered important enough to be mentioned not only in the F. I. R. but to have found place in 161 statement of this witness. This suggests that being not certain as to who could be the assailant, it was thought fit to mention something against Swami Dayal as well as so that in case a clue appeared in investigation pointing towards the guilt of Swami Dayal, the whole investigation might be turned in his direction. We find that in order to implicate Atma Ram motive adduced against him was as if something happened in connection with 145 Code of Criminal Procedure case which made Atma Ram inimical to the deceased. This witness admitted that he had not seen the land which was the bone of contention in 145 Code of Criminal Procedure case. He was put a question as to how he came to know that Atma Ram wanted to take possession over that land, he said that this fact was told to him by the deceased himself. He was then put a question whether he had mentioned this fact in the report, the witness had no option, but to admit that he did not mention that fact. Thus, we see that this star witness has no knowledge about motive. Indeed, as we shall presently discuss, he was not even a witness of this occurrence, but since the investigation could not leave the fate of this case in the hands of public witnesses, it was thought imperative by those who were connected with the investigation of this case and who naturally were keen to bring to book the suspected assailants of the Station Officer to make the presence of a large number of police personnel at the time of the occurrence including this witness. The suggestion from the side of the accused was that there were a large number of people who could have committed this murder because they had much more motive to commit this offence. In this connection, reference may be made to the statement of Constable Brij Kishore Misra wherein he admitted that a truck was looted at the cross roads of Maigalgunj and that the deceased had challaned some constables. In this connection, reference may be made to the statement of Constable Brij Kishore Misra wherein he admitted that a truck was looted at the cross roads of Maigalgunj and that the deceased had challaned some constables. The constable hastened to say that a final report was submitted in that case but connected that he was not in a position to say so as to whether final report was submitted previous to this occurrence or subsequent to this occurrence. We have already noted above how suspicion was thrown equally towards Swami Dayal because not only this fact was mentioned in the F. I. R. and noted in the 161 statement of Sub-Inspector Sharma PW 4 it was mentioned as if there were strained relations between Swami Dayal, on one hand, and deceased, on the other because in connection with dacoity at Sadarpur, the Station Officer had made a lot of enquiries. We may note here that Sub-Inspector Sharma denied to have given that statement although the same was mentioned by the investigating officer. This shows, as noted above, that investigation was proceeding in several directions being not certain as to which person had shot at the deceased-. It has also come on record that the deceased had submitted a charge-sheet against one Sub-Inspector. Sub-Inspector Sharma admitted that when this incident happened, the deceased was conducting investigation against ex-Sub-Inspector B. N. Misra, Constable Narpat and Suresh in a case registered u/s 366 IPC. The witness admitted that the deceased had investigated that case and also submitted charge-sheet and that the case was pending at that time. Be that what it may, suffice it to say that prosecution has definitely failed to prove motive against Mani Ram. 13. Motive, however, is not very material in criminal cases where direct testimony is forthcoming. But once motive is alleged and stands disproved, the testimony of those so-called eye-witnesses has to be scrutinised with great care. As noted above, three types of evidence are adduced against Mani Ram to connect him with this murder. The first type of evidence consists of the statements of Ajay Kumar, Sheo Kumar and Jagdeo Singh, who, apart from proving the prosecution story, leaving aside Jagdeo Singh, also identified this accused in jail. As noted above, three types of evidence are adduced against Mani Ram to connect him with this murder. The first type of evidence consists of the statements of Ajay Kumar, Sheo Kumar and Jagdeo Singh, who, apart from proving the prosecution story, leaving aside Jagdeo Singh, also identified this accused in jail. The second type of evidence consists of statements of Constable Brij Kishore Misra and Sub-Inspector, R. P. Sharma, who alleged to have known this accused from before and, according to them, they had actually seen the accused shooting the deceased with the country made pistol. The third type of evidence consists of the recovery of pistol at the instance of Mani Ram from the field of Natthu, and the report of the Ballistic Expert as well as the statement of that Expert relied upon by the prosecution to show that the empty cartridge fired on the spot fitted in with the pistol that was so recovered at the instance of Mani Ram. 14. We shall, first of all, discuss the testimony of the three public witnesses. 15. PW 1 Ajay Kumar stated that he had gone to Phool Behar and this route lay via Lakhimpur. He was a resident of Neri and if one had to go from Lakhimpur to Neri, one had to travel from Lakhimpur on Maigalgunj Bus. According to him, he had boarded this bus at Lakhimpur. He then went on to state that the three accused boarded this bus at Aurangabad along with Sub-Inspector Sharma, one constable and some other persons. When the bus reached Sadariapur, one of the accused asked the driver to stop the bus and bring his cycle and other articles down from the roof. The driver stopped the bus, climbed the roof and then these three persons got down. At that time the deceased taking a turn was talking to Sub-Inspector, Tewari. One of the accused remarked "What are you waiting for ?". The other winked and the third shot with his pistol towards the deceased on account of which the deceased stumbled, and then all these three accused ran away. A chase was given to these accused, but in vain. On return from chase, constable Brij Kishore Misra took up the cartridge. He said that he did not know the three accused from before and that later on he has identified Mani Ram and Ram Prakash in jail. A chase was given to these accused, but in vain. On return from chase, constable Brij Kishore Misra took up the cartridge. He said that he did not know the three accused from before and that later on he has identified Mani Ram and Ram Prakash in jail. The witness also said that some police personnel as well as some passengers were proclaiming that these three persons were Mani Ram, Atma Ram, and Ram Prakash of Pipri and that it was Mani Ram who had shot at the deceased. We have already discussed how the testimony of these three witnesses as if they did not know Atma Ram from before stands discredited. That is an important circumstance to doubt the testimony of these witnesses regarding identification of Mani Ram, specially when Mani Ram took up positive plea that he was not only known to the witnesses form before, but that he was also shown to them, ft is significant to note that all the three accused are residents of Pipri Aziz. We have noted above how these witnesses knew Atma Ram from before. That being so, the possibility of these witnesses knowing Mani Ram also from before cannot be ruled out. The witness categorically denied that he had gone to Pipri Aziz, but while discussing his testimony vis-avis Atma Ram, we clearly mentioned how when his own father fought election of Directorship and when Pipri Aziz was also included in that constituency, it is impossible to believe that he could not have gone to Pipri. We have also mentioned how he admitted that Narendra Kumar was married in Pipri Aziz. He admitted that he had joined the Tilak of Narendra Kumar, but in order to say that he had not gone to Pipri Aziz, he had no compunction in denying that he had attended the marriage of Narendra Kumar. It is significant to note that at the time of test identification parade this witness as well as other public witnesses had stated before the Magistrate that Ram Prakash and Atma Ram were the assailants because the words used are "Daroga ko marte dekha Tha". It is significant to note that at the time of test identification parade this witness as well as other public witnesses had stated before the Magistrate that Ram Prakash and Atma Ram were the assailants because the words used are "Daroga ko marte dekha Tha". It may be a loose expression but then when we are dealing with question of identification, all these clinks appearing in the identification evidence go a long way to show that these witnesses knowing the accused from before and not being present in the bus were subsequently introduced by the investigating agency. This witness stated that he had not obtained a ticket although he had paid the money. This is rather surprising because no person travelling from Lakhimpur and starting at 5 p. m. would allow the bus conductor to take the money and not to give ticket because a lot of police people were also boarding that bus. The witness then clearly made this statement which shows his utter ignorance about anything. According to him, neither the constables, nor the accused, who had boarded the bus at Aurangabad, had paid any money or had been given any ticket. It is strange conduct, both on the part of the bus conductor as well as on the part of the persons boarding the bus who do not pay money and also who pay the money, do not get tickets. We can ignore nonpayment of money so far as police personnel are concerned because sometimes the private bus owners do not dare to demand money from the police personnel, but it is impossible to believe that private passengers would be allowed to board a bus without making any payment. The witness makes himself one of the persons who had given a chase. It is surprising that although station officer was shot dead and although a lot of people were given a chase, yet because the accused rushed inside the abadi, the chase was given up. This conduct clearly suggests that probably it was a hit and run affair when the Station Officer got down from the bus and since there was no other police personnel, and the passengers, naturally being dark, would not have been courageous enough to give a chase. This conduct clearly suggests that probably it was a hit and run affair when the Station Officer got down from the bus and since there was no other police personnel, and the passengers, naturally being dark, would not have been courageous enough to give a chase. Nobody gave a chase with "the result that assailant or assialants were allowed to go away unnoticed because but for the light of the bus, there was no other light definitely at the place of occurrence. We are not impressed by the testimony of this witness, specially when we find that he went out of his way to state with a vengeance that he did not know Atma Ram from before. 16. Sheo Kumar PW 5 was also returning from Lakhimpur via Maigalgunj. According to him, the bus made to stop at Sadariapur. The passangers, who had boarded bus at Tirana, got down and a person, who was carrying a jhola, fired with his pistol upon the Station Officer. According to him, he did not know any of the assailants and that the police personnel and one or two public passengers proclaimed that these assailants were Mani Ram, Atma Ram and Ram Prakash of Pipri Aziz. The witness in identification parade correctly identified all the three accused. We have already noted above how the Additional Sessions Judge gave benefit of doubt to Ram Prakash and how Atma Ram being known to all these witnesses was being roped in for reasons best known to the prosecution and was made to be identified by these public witnesses, although fully known to them. The testimony of this witness also starts on a shaky note. According to him, he had gone in connection with renewal of licences of Sales Tax. In cross-examination he admitted that he had no work in the office of the Sales Tax, but had merely to see his counsel. This answer clearly shows that he was never there, but because he had 'given an application for grant of licence of a revolver and since in getting that licence he had to get recommendation from the police station at Maigalgunj, obviously he was selected by the Maigalgunj police personnel to be a witness in this case. The witness categorically stated that the shot was fired at a distance of one cubit. The witness categorically stated that the shot was fired at a distance of one cubit. If we look to the post-mortem report, it would appear that this testimony stands belied. 9 gunshot wounds 9f entry were found in an area of 10 cm. x 6 cm. No wads were recovered from inside the body. There was no blackening or tattooing also. It is true that it was a country made pistol, but then looking to these circumstances and the state of the injuries inflicted upon the deceased, there can be no doubt that firing could not have been done form less than one foot to three feet because in less than this distance if firing is done then apart from blackening end scorching that would be found, the shots would enter as a mass making a gaping hole apart from the presence of wads inside the body. Thus, the testimony of this witness comes in clash with the medical evidence and, as such, it is clear that he was giving an imaginary story. Moreover, he tried to make himself an eye-witness of the actual shooting. He was put a question whatever he gave a statement to the Sub-Inspector who investigated this case that he had heard a dharaka. The witness admitted that he had given that statement. It is, therefore, clear that uptil investigation stage this witness was made to speak only about dharaka but he was too eager to make himself an actual eye-witness of the shooting. We are, therefore, of this view that his testimony also does not inspire confidence. He is giving an imaginary story because he is under the influence of police of MaigalgunJ. 17. The last witness Jagdeo Singh PW 7 also, curiously enough, was coming from Lakhimpur via Maigalgunj. He also tried to support the prosecution story. In the jail he identified Atma Ram and Ram Prakash. He had not identified Mani Ram. He admitted that he and Narendra Singh had formed rival parties and that on his report police station at Maigalgunj had challaned Narendra Singh in a dacoity. That goes to show why he was obliged to the police of Maigalgunj to appear in this case. He had not identified Mani Ram. He admitted that he and Narendra Singh had formed rival parties and that on his report police station at Maigalgunj had challaned Narendra Singh in a dacoity. That goes to show why he was obliged to the police of Maigalgunj to appear in this case. A question was put on him that the predecessor of Saheb Singh was Gayapal Singh and that some people had joined against Gayapal Singh and he had gone to Lucknow to recommend the case of Gayapal Singh. The witness evidently was not able to hide the truth and that is why he cleverly stated that he did not know. This is another circumstance which shows that he could always be expected the police station at Maigalgunj to support the prosecution. The witness admitted that he had appeared in a case launched u/s 399/402 IPC for the police. We can go to this extent of taking judicial notice that in such cases by far and large only those people are made public witnesses on whom police can make implicit reliance. We have noted above how this witness knowing Atma Ram, had the audacity to deny this fact. We have gone through his statement carefully, but we are not impressed by the same and have no hesitation in rejecting it. 18. This brings us to the statements of Sub-Inspector, Sharma, and constable Brij Kishore Misra. Sub-Inspector, Sharma, curiously enough, goes to a school being deputed probably to see that no untoward incident happens and yet we are asked to believe that he would not take revolver with him. Then again, in the evening he also goes to investigate a dacoity, but once again, he would not take his revolver, although sometimes in such cases untoward incidents happen. The Sub-Inspector like a clever police witness tried to say that since there was one revolver at the police station, he could not take it. We have noted above how relevent G. D. entries were suppressed so as to deprive the accused of this advantage. It may be that the accused could have asked the Court to summon these G. Ds. but then merely because this was not done, we would not swallow the explanation of Sharma. 19. We have noted above how relevent G. D. entries were suppressed so as to deprive the accused of this advantage. It may be that the accused could have asked the Court to summon these G. Ds. but then merely because this was not done, we would not swallow the explanation of Sharma. 19. This Sub-Inspector was eager to show how he knew the accused and that is why he tried to support the prosecution by stating that Mani Ram had strained relations with the deceased in connection with the recovery of the woman. He admitted that there was nothing in the record of the police station regarding Mani Ram. We have noted above how this motive was deliberately introduced when it was not there. This would go to show that this Sub-Inspector naturally had to support the prosecution story being stationed at Maigalgunj the Station Officer of which was murdered. This witness also stated in cross-examination that the assailant had put his hand on the window and in his estimate the distance between the pistol and the deceased would be about one span. We have noted above how this part of the story comes in clash with the medical evidence and goes to show that an imaginary story was being given by this Sub-Inspector. We are asked to believe that this Sub-Inspector and the Constables gave a chase but allowed the culprits to go away. It is impossible to accept this conduct. On the other hand, this would go to show that had these people been eye-witnesses of this occurrence and had also taken part in the chase, they would have been able to arrest at least one accused, if not more. 20. Then comes a very important statement. A question was put to him whether he had told the investigating officer that the persons, who had committed the crime, were known or that he had named the assailants on that occasion. The witness cleverly parried that question, but the investigating officer Ram Khelawan Singh admitted that the Sub-Inspector, Sharma, had not told him that he had disclosed the names of the assailants immediately after the occurrence. This omission clearly suggests that since no one had seen the assailant, and the investigating agency was not sure as to who was the assailant, this fact was not mentioned in the 161 statement of Sharma. This omission clearly suggests that since no one had seen the assailant, and the investigating agency was not sure as to who was the assailant, this fact was not mentioned in the 161 statement of Sharma. In our view, the statement of Sub-Inspector, Sharma, does not stand the test of truth, in fact, his conduct, and the trend of his replies all go to show that he was the not present at all at the time of occurrence, more so, when being a responsible Sub-Inspector, he did not take upon himself to lodge the F.I.R. 21. We now come to statement of Brij Kishore Misra PW 12. As noted above, he is a star witness of the prosecution. This witness had mentioned in the F.I.R. that the shot was fired by muzzle being put touching the back side of the deceased. This part of the story comes in clash with the medical evidence discussed above by us. The constable also introduced motive and be also introduced recovery of blank cartridge which, in our view, was deliberately introduced by clever investigating officer so that later on if they were able to arrest any accused, they might be able to plant the pistol with the help of which this cartridge was fired for purposes of this case. We have noted above how G. D. about the departure of this constable was not filed. What is more, according to him, after lodging the report, he left for Sitapur at 9.45 p. m. and returned at about 1 or 2 a. m. It appears to us that he was definitely sent to collect information so that later on at leisure an F. I. R. may be lodged to suit the purpose, in this connection, we may note the statement of Head Constable Iqtida Hussain. This head constable admitted that but for these two reports, namely, one lodged by Constable Brij Kishore Misra, and the other received at about 12.30 a.m. in the night regarding death of Saheb Singh, no other report was filed at the police station. It was, therefore, easy for the prosecution to manipulate lodging of an F.I.R. after manufacturing a prosecution story. This explains why Constable Brij Kishore Misra was made to lodge an F.I.R. in which, apart from giving motive, it was categorically stated as if the shot was fired touching the back side of the deceased. It was, therefore, easy for the prosecution to manipulate lodging of an F.I.R. after manufacturing a prosecution story. This explains why Constable Brij Kishore Misra was made to lodge an F.I.R. in which, apart from giving motive, it was categorically stated as if the shot was fired touching the back side of the deceased. We have also noted above how no sanctity can be attached to this document once it comes out that although this cartridge was said to have been sealed immediately when Constable Brij Kishore Misra handed it over, but it was seen by Sub-Inspector, Kaushik, when he returned to the police station at about 10 p. m. and was then sealed in his presence. The witness was put a categorical question that both in F.I.R. and 161 statement he had mentioned that he had named the accused immediately after the occurrence, but we find that both these things are missing. The witness wanted to resile from his earlier statement because he knew the post mortem report and that is why he tried to say as if shot was fired from a distance of 1 feet. He was then put a question whether shot was fired sticking to the back. He denied making such a statement. He was then confronted with the F.I.R. and then he had no option but to give reply which is neither here nor there. All these circumstances clearly go to show that Brij Kishore Misra had never seen this occurrence and since he was a Constable at this police station, he could not say no when asked by the investigating agency to become not only an informant in this case, but also to act as an eye-witness. We would reject his testimony. 22. This brings us to the last portion. it is significant to note that Mani Ram surrendered in the Court. According to Ram Khelawan, he had interrogated him in the jail and then had moved an application that he may be handed over to him. It has also come on record that being handed over to him, Mani Ram was allowed to remain under police surveillance, though in the verandah. It is no wonder that all attempts were being tried probably to persuade Mani Ram confess his guilt so that his statement u/s 364 may be recorded by the Magistrate. It has also come on record that being handed over to him, Mani Ram was allowed to remain under police surveillance, though in the verandah. It is no wonder that all attempts were being tried probably to persuade Mani Ram confess his guilt so that his statement u/s 364 may be recorded by the Magistrate. Moreover, it is surprising as to how the investigating officer selected Mani Ram as a person who could have knowledge about this pistol. This mystery remains unsolved because the prosecution story is that three persons had combined to commit this murder. It may be that Mani Ram had actually shot, but then it cannot be argued that Mani Ram must be the person who would be knowing the place where the pistol could be found. This, in itself, shows that having got a fired cartridge in custody from a pistol, which was also in custody of the police, the police obviously had to select the same person who was shown to have shot at the deceased so that this additional circumstantial evidence may be given against that assailant and that is why Mani Ram is shown to have been taken into custody and then is shown to have got recovered the pistol. Three witnesses of recovery were examined, apart from Sub-Inspector, Kaushik and Ram Khelawan, investigating officer. The names of public witnesses are Girja Dayal PW 13 Maiku Lal PW 14 and Hari PW 19. Girja Dayal PW 13 and Maiku Lal PW 14 both are said to have been called by the investigating officer. According to Girja Dayal, he first went to Mitauli. Then he went to Sarawan and then per instructions of Mani Ram, the jeep was stopped. He took them to a field where there was peri of sugar-cane. There was a stone and one cubit from that stone, Mani Ram, after digging the earth, got recovered the pistol, Jhola etc. According to this witness, the tank was at a distance of 30-40 steps and there was parti all round. He then said that one span ground had to be dug in order to get out this pistol. According to him, memos were prepared on that very spot near the stone. According to him, the pistol was seen and it was found empty. He then said that one span ground had to be dug in order to get out this pistol. According to him, memos were prepared on that very spot near the stone. According to him, the pistol was seen and it was found empty. Maiku Lal stated that at first they went to Pasgawan and then Mani Ram took them to a field where this pistol was recovered. In cross-examination he said this Jhola was tied with a cord. The accused himself had taken out the things from Jhola and all writing took place outside the field in the south. According to him, the pistol was not seen on the spot. These material contradictions show that all of them are giving an imaginary story. Hari PW 19 admitted that he was maternal uncle of Budha Chaukidar. Obviously he would support the prosecution. He said that he was not interrogated by the Sub-Inspector. According to him, the memos, were prepared outside the field. He then admitted that the pistol was not seen in his presence, that the Jhola was not tied and that the Circle Inspector himself had seen all the things. He then stated that one paper was handed over to Mani Ram but Mani Ram refused to sign stating that what was mentioned therein was wrong. It, therefore, becomes clear that it was all a fake recovery. In fact, the pistol being planted and in the knowledge of the Sub-Inspector, he had no difficulty in making Mani Ram get it recovered. These witnesses were under the influence of the police and they were made witnesses at leisure. No doubt, they were tried to be tutored, but since they were not prepared for questions in the cross-examination, material contradictions occurred. Moreover, when there is no sanctity attached to the recovery of the blank cartridge, it is impossible to hold that recovery of pistol was above board. Besides, this pistol was recovered in the filed after sufficient length of time and it is possible that Mani Ram could have acquired the knowledge about the same during this period. This circumstance, by itself, is not sufficient to connect Mani Ram with this offence. We may note here that, according to the Ballistic Expert, the fired cartridge fitted in with the pistol. This circumstance, by itself, is not sufficient to connect Mani Ram with this offence. We may note here that, according to the Ballistic Expert, the fired cartridge fitted in with the pistol. The circumstances, with which this prosecution story was manufactured, lead us to infer that actually the pistol was with the investigating agency and a cartridge was fired from the same so that it may be shown to have been recovered from the spot. All the time attempt was to arrest the accused but these accused were clever inasmuch as they surrendered at different places on different dates. In this background, there was no option for the investigating agency but to move an application before the Magistrate that Mani Ram may be remanded to police custody so that he may give a clue about the pistol. We have noted above how from the very inception the investigation was loaded against Mani Ram and being tainted from the very beginning, no sanctity can be attached to this recovery part. 23. As a result of this discussion, we have no hesitation in coming to this conclusion that prosecution has failed to prove that it was Mani Ram who had committed murder of Saheb Singh. 24. It is unfortunate that this murder was not properly investigated, but then if the prosecution comes up with trumped-up and manufactured story implicating innocent persons, the consequences naturally will have to be suffered by the prosecution. 25. With these observations, we would allow appeals of Atma Ram and Mani Ram and would reject the Reference made by the learned Additional Sessions Judge for confirmation of death sentence awarded to Mani Ram. Mani Ram is acquitted of the charge punishable u/s 302 IPC. Atma Ram is acquitted of the charge punishable u/s 302/34 IPC. Atma Ram is on bail. He need not surrender. His bail bonds are cancelled and his sureties are discharged. Mani Ram is in jail. He shall be set at liberty forthwith unless wanted in some other connection.