N. N. SHARMA, J. This appeal is directed against order of Sri R. K. Saxena, learned II Additional Sessions Judge Shahjahanpur dated September 1977 in Sessions Trial No. 6 of 1977 by which the appellant was convicted under Sections 302 and 323/34 of the Indian Penal Code he was sentenced to imprisonment for life under Section 302, I. P. C. , only. 2. The prosecution story briefly stated is that the house of Khimma deceased opened towards east; a lane running north-south intervened in between his house and house of informant Chhotey, P. W. 1, whose hut was situated towards southeast of the house of Khimma. This hut adjoins hut of Shambhu towards east. In front of their house lay an open courtyard. Chhotey injured and Dhani Ram. appellant are co-villagers, residents of Barigaon, police station Sehra Mau, district Shahjahanpur, Dhaniram, appellant aged about 20 years is a carpenter. The village is predominately inhabited by Pathans. Occurrence took place at dead of night in between 20th and 21st October 1976 while Chhotey and his family members were sleeping in their hut and a lamp was burning there; informant was awakened by the sound of intrusion and accosted them one miscreant reached his cot and threatened him with dire consequences at pistol point, he held the barrel of the pistol and a scuffle ensued informant was dragged outside his hut the stranger associate of appellant dealt a lathi blow on informant the out cry of informant and hue and cry of his family members attracted to the scene of occurrence Khimma victim and his son Mewa Ram P. W. 2 while running away from the scene of occurrence appellant fired a shot on Khimma who fell down dead in torch light flashed by Mewaram and Dava Ram and light of lamp appellant was recognized although his associate could not be identified by witnesses Shambhu. Dayaram, etc. miscreants managed to escape towards northeast. 3. Chhotey dictated report Ext. Ka-1 about the occurrence to Sant Ram and made it over at police station Sehra Mau on October 21, 1976 at 6-15 a. m. On the basis of this report F. I. R. Ext. Ka-3 was drawn by head constable Janki Singh who registered a case of general diary vide Ext. Ka-4. Writing of head constable was proved by investigator Sri Ramji Lal, P. W. 4, who took up investigation forthwith. 4. Ka-3 was drawn by head constable Janki Singh who registered a case of general diary vide Ext. Ka-4. Writing of head constable was proved by investigator Sri Ramji Lal, P. W. 4, who took up investigation forthwith. 4. Dead body of Khimma was found inside his courtyard at place B shown in the site plan Ext. Ka-6: inquest memo diagram, etc. Exts. Ka-5 to Ka-7 were drawn and dead body was sent in sealed condition to mortuary Shahjahanpur through constable Daya Ram vide Ext. Ka-14. 5. Dr. S. C. Vaish, the then Medical Officer District Jail Shahjahanpur held autopsy on the dead body of deceased Khimma on October 22, 1979 at 10 a. m. He detected ante-mortem multiple wounds fifty in number in an area of 26x21 cm. on the right side lower and outer front of chest, upper part of the neck and upper and outer half part of the right side of chest of victim. Wound is charred margined. No scorching and no tettooing. 6. The death was due to shock and haemorrhage vide post-mortem report Ext. Ka-13 tendered in evidence by prosecution. According to the post-mortem report time of death of victim was about 1-112 day at the time of post-mortem examination. 7. Chhotey, P. W. 1, was examined in Sehra Mau dispensary on October 21, 1976 at 8-15 a. m. by Dr. A. S. Tripathi, P. W. 3, who detected one lacerated wound on scalp region 4 cm. x 1|2 cm. x 1j4 cm. vide injury report Ex. Ka-2. Dr. Tripathi opined that the injury was simple in nature caused by some blunt weapon. Duration of injury was not given by the Doctor, in his injury report Ext. Ka-2 or in his deposition. 8. On completion of investigation the appellant was sent up to stand his trial. 9. In his statement appellant denied to have been author of the injuries sustained by Chhotey P. W. 1 and Khirama deceased. He further stated that on account of dispute with his Muslim co-villagers about the courtyard infront of his house he had been involved at their insistence. 10. Prosecution examined Chhotey, P. W. 1 and Mewa Ram, P. W. 2, who supported the prosecution version. 11. Gajraj Singh, D-W. 1, was examined in defence to corroborate the dispute about the courtyard infront of the house of appellant. 10. Prosecution examined Chhotey, P. W. 1 and Mewa Ram, P. W. 2, who supported the prosecution version. 11. Gajraj Singh, D-W. 1, was examined in defence to corroborate the dispute about the courtyard infront of the house of appellant. That dispute was amongst the father of appellant and the Muslim inhabitants of the locality about the courtyard and some trees standing thereon, Gajraj Singh further testified about the status of appellant and alleged that there was a dacoity at the house of Khimma on that night lie also reached there appellant was not being nominated as a culprit at that time. Abdul Ranim Khan, Irshad All Khan and Musharraf Khan were leader of Muslim Party. 12. Learned Sessions Judge believed the P. w. s. and recorded the conviction and sentence. 13. We have heard learned counsel for the parties and perused the record. 14. The appeal is allowed for the following reasons: (1) The scribe of the written report Ex. Ka-1 has not been examined in this case. Chhotey, informant who claimed to have dictated this report has simply thumb marked the same. Chhotey conceded that Sani Rani the scribe of this report was sent for. Shambhu went to call Sant Ram who resided at a distance of three miles from his village. He further conceded that Mewaram, P. W. 2 and other co-villagers were well educated he could not give any reason for getting the report scribed from Sant Ram. Sant Ram has been withheld in this case and has not been examined to face the cross examination. Head constable Janki Singh who scribed the F. I. R. Ex. Ka-3 and G. D. entry Ex. Ka-4 was not examined. This F. I. R. and G. D. entry were not formally proved by their scribe. Had these witnesses been examined they could have been cross-examined about the alleged false incrimination of the appellant in this crime at the instance of Abdul Rahim Khan, Irshad Ali Khan etc. who attested the inquest memo Ex. Ka-5, as was the defence. 15. This F. I. R. and G. D. entry were not formally proved by their scribe. Had these witnesses been examined they could have been cross-examined about the alleged false incrimination of the appellant in this crime at the instance of Abdul Rahim Khan, Irshad Ali Khan etc. who attested the inquest memo Ex. Ka-5, as was the defence. 15. In Debendra Chandra Sarkar and others v. Emperor A. I. R. 1934, Cal, 458, it was pointed out that non-production of such witnesses who prepared the F. I. R. tells heavily on prosecution as in their absence it was not possible to ascertain what exactly was the version of the informant at the" time when the Ejahar was first put down in writing or whether the writing represented a genuine version given by the informant himself or was coloured by interference from other sources. Under the circumstances of the present case we have to respectfully endorse the same. (2) Learned counsel for the State pointed out that there was no good reason to disbelieve Chhotey, P. W. 1 who was an injured witness and Mewa Ram, P. W. 2, son of deceased specially when no enmity of appellant with these witnesses could be elicited in cross-examination. Under such circumstances the conviction on a solitary testimony of injured was also sustainable. 16. We do not subscribe to this contention. It is neither the rule of law nor of prudence that if nothing is found against the witness to show that they were interested or inimically disposed towards the complaint then their evidence as such has to be accepted on its face value. In Sadliu Charan Pandey v. Maharanl Tripathi and another 1974 C. L. J. 1120, it was pointed out that the Judge has to apply his intelligence to properly assess and judge the evidence on record by the yardstick of probabilities its intrinsic worth and the animus of witnesses and he is not an automation to mechanically compute the evidence on record without assessing the same in the context and perspective of the above considerations. 17. When the prosecution version and ocular testimony in this case are tested on anvil of objective circumstances and yard stick of probabilities it does not hold water. 18. 17. When the prosecution version and ocular testimony in this case are tested on anvil of objective circumstances and yard stick of probabilities it does not hold water. 18. It was conceded by Chhotey, P. W. 1, that the intruders came to his house to commit theft; it appears that for this reason the report also was taken down under Section 460 of the Indian Penal Code. Chhotey had to cut a sorry figure in cross-examination. He conceded that the thieves who came to commit theft in his hut could not carry away any articles he further replied that nothing could be carried as he had no cash, money or valuable, he had simply cooking utensils. He further conceded that the house of appellant was Pucca his father had holding to the extent of 45 Bighas and they were carpenters. The hut of the informant did not contain any door or leaves. Under such circumstances it is highly improbable to think that the appellant who was a co-villager of informant and must have well known this grinding poverty of informant could have gone to commit the theft at his hut where there was hardly any valuable to be stolen. Similarly Chhotey testified mat Khimma emerged out of the house and was fired at but he was spared by the appellant. However, the dead body of Khimma was not found infront of the house of informant but well within his own house which was separated by this courtyard by a lane as shown in the site plan Ex. Ka-8. Thus the defence version that occurrence took place inside the house of Khimma where his dead body was found by investigator also appears to be more probable. Both eye-witnesses conceded that the miscreants had covered their heads but their faces were unmasked. Obviously Dhaniram could not have gone to commit theft in his own village without taking precaution of covering his face with a mask to avoid detection. It is strange that he did not cover his entire face but covered it up only partly. (3) It is further significant, to note that occurrence took place at dead of night. A look at almanac would go to show that moon rise on that night was at 2. 43 a. m. so it was pitch dark at the time of occurrence. (3) It is further significant, to note that occurrence took place at dead of night. A look at almanac would go to show that moon rise on that night was at 2. 43 a. m. so it was pitch dark at the time of occurrence. When an occurrence took place at dark hour of night question of sufficiency of light and good opportunity for recognition assumed importance. It was alleged that a lamp was burning inside the hut of informant. It is difficult to believe that informant on account of his poverty could have afforded to burn mid night oil on that night without any rhyme or reason. The version laid in the F. I. R. shows that the appellant was recognized not inside the hut where the light of lamp could have been available but outside in the courtyard in the light of torches flashed by Mewa Ram, P. W. 2 and Dayaram. Dayaram who was alleged to be a torch-bearer has not been examined in this case. The two torches Exs. 9 and 10 of Dayaram or Mewaram which are alleged to have been entrusted to them by investigator were not produced in court nor the lamp was produced, Sri Ramjilal did not prepare any entrustment memo about the lamp. Even a scrutiny of statement of Chhotey, P. W. 1 and Mewa Ram, P. W. 2 shall go to disclose that such light could not have been available to facilitate recognition of appellant. 19. According to Mewaram, P. W. 2, he ran out of his house flashing his torch on hearing the out-cry of Chhotey, his father followed him, however, he took cover behind the wall while his father who stood in front of his door in the courtyard was shot dead. He was flashing his torch from behind his wall which was upto chest height. According to Chhotey, P. W. 1, while he was in the courtyard raising alarm Khimma shouted from his house that they were arriving. He was at a distance of two or three steps from the door of his hut when he received lathi blow. Mewa Ram was shouting standing in the house of Khimma and was flashing the torch from there. He was at a distance of two or three steps from the door of his hut when he received lathi blow. Mewa Ram was shouting standing in the house of Khimma and was flashing the torch from there. It is difficult to reconcile these conflicting versions which unmistakably go to show that there was no torch light on the spot to facilitate recognition of fleeing miscreants in that momentary glimpse on that night specially when the dimension of the injuries sustained by the victim goes to show that the shot was not fired on the victim from a long range. 20. Thus the evidence about light of torches and lamp which could have facilitated recognition of appellant is flimsy. The identifiers had not good opportunities for recognition. (4) The stranger associate of appellant could not be arrested. Investigator did not take any step in the matter, it has been shown above that eye-witnesses Shambhu, Daya Ram and Puttu were not examined to support the prosecution story and then: non-producion is again a circumstance which reflects on the veracity of ocular testimony in this case. A presumption arises under Section 114, illustration (g) of Indian Evidence Act that such evidence if produced would have been unfavourable to prosecution. Sec Habeeb Mohammad v. State (3 ). 21. In the result appeal is allowed. Conviction and sentence recorded by learned Sessions Judge are set aside and appellant is acquitted of the charges under Sections 302|323|34, I. P. C. 22. The appellant is in jail. He shall be released forthwith unless required in connection with any other process of law. .