B. N. KATJU, J. ( 1 ) - Chandramuleshwar alias Bhaiya Lal and Babua have filed this appeal against the judgment of the Sessions Judge. Mirzapur dated 25-1-1977 passed in Sessions trial No. 142-A of 1975 convicting them under sections 302/34 and 307/34 Indian Penal Code and sentencing them to life imprisonment and seven years rigorous imprisonment respectively. Both the sentences were ordered to run concurrently. ( 2 ) VIJAI Kali Shanker alias Lal Saheb co-accused is the son of Vishnu Prasad Misra co-accused. Chandramuleshwar alias Bhaiya Lal appellant is the nephew of Vishnu Prasad Misra co-accused and Babua appellant is the servant of Chandramuleshwar appellant. ( 3 ) THE case-of the prosecution is that about 13 or 14 years prior to the occurrence Vijai Kali Shanker co-accused had filed a case against Raseele deceased and his brothers Chhabile (P. W. 3) and Rangile with respect to fight (marpit ). About 5 or 6 years earlier Chandramuleshwar appellant had filed a case against Raseele deceased and his brothers Chbabile (P. W. 3) and Albele (P. W. 1 ). Bhawani Prasad the father of Chandramuleshwar appellant had fired at Albele (P. W. 1) prior to the occurrence. A report regarding that incident was lodged by Albele (P. W. 1) and a case against Bhawani Prasad was instituted on its basis. This resulted in strained relations between the appellants and the co-accused on the one side and Raseele deceased and his brothers on the other. On 30-6-1975 at about 11 A. M. while Prabhakar (P. W. 2) the son of Albele (P. W. 1) was playing chess with Raseele deceased at the shop of Bishambhar Nath (P. W. 4) in Vindhyachal at a distance of about one furlong from the temple and Chhabik (P. W. 3 and Bishambhar Nath (P. W. 4) were also present there Vishnu prasad Misra armed with a lathi and Vijai Kali Shanker co-accused armed with a revolver came there and on the instigation of the two appellants and Vishnu Prasad Misra co-accused, Vijai Kali Shanker co-accused fired five or six shots at them as a result of which Raseele deceased, Prabhakar (P. W. 2) and Chhabile (P. W. 3) received injuries. The appellants and the two co-accused thereafter ran away. Raseele deceased died while he was being taken to the hospital. The appellants and the two co-accused thereafter ran away. Raseele deceased died while he was being taken to the hospital. ( 4 ) THE first information report was lodged by Chabile (P. W. 3) at Police Station Vindhyachal at 11. 30 A. M. on the same day (30-6-1975), the distance of the Police Station from the place of occurrence being two furlongs. ( 5 ) THE injuries of Prabhakar (P. W. 2) and Chhabile (P. W. 3) were examined by Dr. P. C. Kanaujia (P. W. 6) on the same day (30-6-1975)-at 12 noon and 1 P. M. respectively and the under mentioned injuries were found on their person: Pra b ha ka r 1 Gun shot wound I cm. x 1 cm. on the front of left palm near the medial border, tattooing of the surrounding skin present. 2. Gun shot wounds with both wounds of entry and exit on the upper part of front of left leg 7 cm below the knee joint. Wound of entry 1 cm. x 1 cm. x tissue deep. Wound of exit 2 cm. x 1. 2 cm. communicating with wound of entry. Wound directed left to right. 3. 3. Penetrating wound 1 cm. x 0. 8 cm. Depth cannot be ascertained as the wound is in the dangerous one with lacerated margin on the right side of chest 8 cm. from the right nipple near the midline. 4. One swelling 4 cm. x 4 cm. on the right side of the chest on the anterior axillary line. Foreign body felt under the swelling, 7 cm below the nipple. 5. Gun shot wound 0. 8 cm. x 0. 8 cm. on the back of the left wrist joint. Chhabile 1 One punctured wound 1 cm. x 0. 8 cm. x 1. 5 cm. deep. On the back of middle of right hip margins of the wound lacerated and tattooed. ( 6 ) THE postmortem was conducted by Dr. K. P. Rai (P. W. 8) on 30-6-1975 at 4. 30 P. M. and the under mentioned ante-mortem injuries were found on the body of Raseele: 1. Lacerated gun shot wound of entrance 1 cm. x 1 cm. x muscle deep on the left side of the arm outer part-15 cm. ( 6 ) THE postmortem was conducted by Dr. K. P. Rai (P. W. 8) on 30-6-1975 at 4. 30 P. M. and the under mentioned ante-mortem injuries were found on the body of Raseele: 1. Lacerated gun shot wound of entrance 1 cm. x 1 cm. x muscle deep on the left side of the arm outer part-15 cm. below the top of the left shoulder, On exploration of the wound going upwards and medially and passing through the left side of the chest on the third intercostal space, puncturing the left lung, left suricle and right suricle and fractured the third rib on the right side at the sternocostal junction. The shot was recovered on the right side of the chest at the level of third sternocostal junction under the skin. The shot had passed through the left axilla and facerated the left axilla blood vessels too. There is no tattooing or scorching of the skin around the wound and externally no wound on chest left side. ( 7 ) ON internal examination the third rib on the left side was found to be fractured and the left pleura and left lung and the paricardium were found to be lacerated. ( 8 ) IN the opinion of Dr. Rai the injury found on the body of the deceased was sufficient in the ordinary course of nature to cause death. ( 9 ) THE prosecution examined three eye-witnesses, namely, Prabhakar (P. W. 2), Chhabile (P. W. 3) and Bishambhar Nath (P. W. 4 ). ( 10 ) BOTH the appellants pleaded not guilty and stated that they were implicated falsely due to enmity. ( 11 ) THE trial court after considering the evidence on record came to the conclusion that the prosecution had succeeded in establishing the guilt of the appellants and convicted and sentenced them as mentioned earlier. It may be mentioned that Vishnu Prasad Misra co-accused was murdered during the pendency of the trial and Vijai Kali Shanker was absconding. ( 12 ) PRABHAKAR (P. W. 2), Chhabile (P. W. 3) and Bishambhar Nath (P. W. 4) narrated prosecution case regarding the incident. The presence of Prabhakar (P. W. 2) and Chhabile (P. W. 3) is established by the injuries received by them as according to Dr. P. C. Kanaujia (P. W. 6) they could have been received at the time of the incident. The presence of Prabhakar (P. W. 2) and Chhabile (P. W. 3) is established by the injuries received by them as according to Dr. P. C. Kanaujia (P. W. 6) they could have been received at the time of the incident. The presence of Bishambhar Nath (P. W. 4) is natural as the incident took place at his shop. It may be mentioned that all these three witnesses have been nominated as eye-witnesses in the first information report. It would, however, not be safe to rely on the evidence of these three witnesses regarding the participation of the appellants in the incident as the case of the appellants stand on a separate footing from the case of Vijai Kali Shanker co-accused who has been ascribed the role of firing at the deceased and Prabhakar (P. W. 2) and Chhabile (P. W. 3 ). The evidence of these three witnesses that the appellants and Vishnu Prasad Misra co-accused instigated Vijai Kali Shanker co-accused in a chorus to fire at the deceased and the witnesses appear to be doubtful as it was improbable and it was not at all necessary for them to have done so. ( 13 ) FURTHER it is well settled that the evidence of instigation is a weak type of evidence. Moreover, the presence of the appellants and Vishnu Prasad Misra co-accused at the time of the incident armed with Lathis is also open to grave doubt as none of these persons admittedly used their weapons at the time of the incident. It is also noteworthy that none of the three eye-witnesses are independent as Prabhakar (P. W. 2) is the nephew of the deceased and Chhabile (P. W. 3) is the brother of the deceased. There was admittedly enmity between them on the one hand and the appellants and the two co-accused on the other prior to the occurrence. Bishambhar Nath (P. W. 4) has admitted that he and, Chhabile (P. W. 3) were the members of the executive of the Vindhya Vyavasai Samaj which was established four or five years prior to the occurrence by Chhabile (P. W. 3 ). Bishambhar Nath (P. W. 4) also appears to be a close associate of the deceased as admittedly the deceased and his brothers played chess at his shop regularly. He is, therefore, not independent. Bishambhar Nath (P. W. 4) also appears to be a close associate of the deceased as admittedly the deceased and his brothers played chess at his shop regularly. He is, therefore, not independent. Implicit reliance cannot, therefore, be placed on the testimony of the three eyewitnesses regarding the participation of the appellants in the incident. ( 14 ) THE prosecution has thus failed to establish the guilt of the appellants under sections 302/34 and 307/34 Indian Penal Code. ( 15 ) THIS a appeal is accordingly allowed and the conviction and sentences of the appellants are set aside. ( 16 ) BOTH the appellants are on bail. They need not surrender. Their bail bonds discharged. Appeal allowed. .