JUDGMENT 1. Appellants Rajendra Yadav and Rajman Lobar were convicted under section 302 and 302 read with Section 34 IPC and were sentenced to undergo life imprisonment. Rajendra Yadav was convicted under section 302 IPC simpliciter for the murder of Shitla deceased and was sentenced to undergo life imprisonment and he was further convicted under section 302/34 IPC for the murder of Lallan deceased and sentenced to life Imprisonment. The appellant Rajman was convicted under section 302 IPC for the murder of Lallan and sentenced to undergo life imprisonment. He was further convicted under section 302 read with section 34 IPC for the murder of Hira Lal deceased and sentenced to imprisonment for life. 2. Co-accused Krishna Nand Rai and Dinesh Kumar were also prosecuted alongwith the aforesaid appellants on the charge under section 302 read with section 34 IPC but they were acquitted by the trial COurt. The case against them relates to an occurrence which had taken place at about 9.30 a. m. on 21.-7-74 near the Lanka crossing within the limits of P. S. Bhelupur district Varanasi in which three persons, namely, Hira Lal, Lallan Kunbi and Shitla Prasad had lost their lives. According to the prosecution story, appellant Rajendra is the cousin of Shobhnath. It was alleged that a theft was committed at the house of Shobhnath about 20 or 22 days prior to the occurrence and appellant Rajendra had complained to Durga Prasad Yadav, complainant that the theft at the house of his cousin Shobhnath was committed by his brother Shitla Prasad and his colleagues Hira and Lallan. Durga Prasad enquired from his brother Shitla Prasad about the theft but he denied that he had committed the theft at the house of Shobhnath and the complainant had conveyed this denial in the evening preceding the date of the occurrence to the appellant Rajendra. It is further said while the information was conveyed to the appellant Rajendra by the complainant Durga Prasad Yadav, the appellant Rajman who also was present there had told Rajendra that "Unke chakkar men kyun pare ho humlog apney dhang se nipat lenge. It is further said while the information was conveyed to the appellant Rajendra by the complainant Durga Prasad Yadav, the appellant Rajman who also was present there had told Rajendra that "Unke chakkar men kyun pare ho humlog apney dhang se nipat lenge. " On the following day at about 9.30 a. m. i.e., on 27-7-74 when Durga Prasad was going to a barber shop near Kanka crossing for heir cutting, he heard the sound of firing from the side of 'Asha Tanakan Vidyalaya' and then he saw appellant Rajendra armed with a double barrel gun along with the appellant Rajman, Krishna Nand Rai and Ganesh Kumar standing in front of 'Asha Tankan Vidyalya' and at that time he had also seen the deceased Hira Lal lying on the Patri and then, he noticed the appellant Rajendra firing two shots on Hira deceased and on the instigation of accused Ganesh Kumar to kill Lallan and Shitla Prasad who were also standing near Hira, the appellant Rajendra also fired on Shitla who also fell down on receiving the gun shot injury and, hereafter, the accused Krishna Nand Rai and Dinesh had exhorted to kill Lallan Kunbi also who was requesting them with folded hands to forgive him and, thereupon, appellant Rajman after taking the double barrel gun from the hands of Rajendra fired at Lallan Kunbi who also fell down after being hit by the gun fire. Thereafter, all the appellants had run away towards west. Durga Prasad, then, went near the place where Hira, Lallan Kunbi and Shitla Prasad had fallen on the ground after receiving the gun shot injuries and he found Lallan and Hira dead. But his brother Shitla Prasad was, then, alive who was groaning with pain. The complainant proceeded towards Banaras Hindu University Hospital along with Shitla injured and after meeting other members of his family on the way to Benaras Hindu University Hospital, the complainant stopped on the way and his family members had carried Shitla to the B.H.U. Hospital. The complainant then prepared the written report of the occurrence and went to the Police Station Bhelupur which is two miles away from the spot and lodged his report at 1.0.40 a, m. the same day. Shitla Prasad, injared also succumbed to his injuries subsequently in the hospital the same day. 3. The complainant then prepared the written report of the occurrence and went to the Police Station Bhelupur which is two miles away from the spot and lodged his report at 1.0.40 a, m. the same day. Shitla Prasad, injared also succumbed to his injuries subsequently in the hospital the same day. 3. After registration of the case at the Police Station Bhelupur, Jagdish Tewari PW 10 took up the investigation of the case in his own hands and he visited the scene of occurrence alongwith police force and he found the dead bodies of Hira, Lallan on the spot. Chhotey Lal PW 4 S. I. had prepared the inquest report on the dead body of Hira and Lallan and sent them for post mortem examination through constables Bhagwat Prasad PW 6 and Ram Naresh Misra PW 9. The Investigating Officer had recorded the statements of Tulsi Yadav, Shobhnath Gaur and Sankatha Prasad on the same day. He also prepared the site plan Ex. ka8. He found blood stained earth on the spot and took it into his possession. He made the spot inspection and found fired cartridges marked Ext. 3 to 6. Three tiklies Ex. 7 to 9 were also found there. He had also prepared recovery memo Ex. ka 3 and sealed them in separate packets. He interrogated Babu Lal and Lallu, PW 3 on 22-7-74. All the accused were arrested on 22-7-74 by the S. I. Bhullan Ram and others and they were taken to the police station Bhelupur at 12.30 p. m. as per Gene al Diary entry, a copy of the same is Ex. ka 14-A. 12 bore double barrel gun Ex. 10 and 4 cartridges were recovered by S. I. Jagdish Singh, PW 5 from Sidhraj Singh, son of Kallu Singh of village Narottampur and they were sealed in separate packets. The S. I. had prepared the recovery memo which is Ex. ka 4. The sealed packets containing gun and cartridges were deposited at the police station Bhelupur by Jagdish Singh, PW 5 on 22-7-74 at 1.05 p. m. During the Investigation gun Ex. 10 along with empty cartridges Ex. 3 to 6 which were found on the spot were sent by the Investigating Officer to the Ballastic Expert for his opinion. Radhey Shyam Misra, PW 11 Ballastic expert opined vide his report Ex. ka 10 that the empty cartridges Exts. 10 along with empty cartridges Ex. 3 to 6 which were found on the spot were sent by the Investigating Officer to the Ballastic Expert for his opinion. Radhey Shyam Misra, PW 11 Ballastic expert opined vide his report Ex. ka 10 that the empty cartridges Exts. 3 to 6 were fired from the double barrel gun no. 3656-D i.e., Ex. 10. After completing the investigation the charge sheet was filed against all the appellants including Kallu Singh of village Narrottampur by the investigating officer. 4. Dr. B, N. Chakravarty PW 7 conducted the post mortem examination of Hira at 2 p. m. on 22-7-74. He found the following ante mortem injuries on his person :- 1. Gun shot injury 3 cm in diameter circular in shape, chest cavity deep with blackening of margins which is in dirven and laceration of the underlying muscles on the back of chest just of the right of the mid line. 2. A gun shot injury oval in shape 4 cm x 3 cm by chest cavity deep with blackening of margins which is in driven on the back of the lower part of the chest just to the left of the mid line. 3. Multiple small circular gun shot wound (charras) on an area of 27 cm x 16 cm on the back of the chest. 4. Lacerated wound 4 1/4" x 4 1/2" x muscle deep, margin of the wound blackened and averted at places at the back of the arm 6 cm above the elbow. On internal examination, the 6th rib right side was found broken at two places, pleura was lacerated under injury no. 1. both the lungs were lacerated. 5. According to the opinion of the doctor the death was caused due to shock and haemorrhage as a result of injury no. 1. 6. Dr. B. N. Chakravarty had also conducted the autopsy on the dead body of Lallan deceased and he found the following injury on his person :- 1. Oval shaped gun shot wound 3 cm x 2 cm x chest cavity deep with blackening of margins which is in driven with laceration of the underlying muscles. On internal examination, the 2nd and 3rd ribs (on left side) were found fractured and plural cavities contained one pound blood. Both the lungs and pericardium were also found perforated. The vesicles superior, venacava were also lacerated. On internal examination, the 2nd and 3rd ribs (on left side) were found fractured and plural cavities contained one pound blood. Both the lungs and pericardium were also found perforated. The vesicles superior, venacava were also lacerated. Two wads were removed from left lung, two wads from right axillar, four shots removed from right arm and abdomen was found empty. 7. According to the opinion of the doctor the death was caused due to shock and haemorrhage as a result of injuries. 8. All the accused pleaded not guilty the charge levelled against them. The appellant Rajendra Yadav has admitted that Shobhnath was his cousin but he has expressed his ignorance about the alleged theft at the house of Shobhnath. He had also stated in his written statement paper no. 96 ka that no talk whatsoever took place between him and any body else regarding the theft if any, of Shobhnath. He also denied that he knew Kallu Singh whose gun was allegedly used in this occurrence. He further stated that it appears that Kallu Sir.gh himself had used his gun in this occurrence alongwith others and he along with others who falsely implicated in this case in collusion with the police in order to save Kallu Singh. He has further stated that at he is a student of B.H.U. and used to participate in the students movements and, therefore, the police has implicated him in this case taking advantage of the opportunity. Appellant Rajman also alleged in paper no. 98 ka (written statement) that he had been falsely implicated in this case in collusion with Kallu Singh by the police who might have used his gun. The accused Krishan Nand Rai and Dinesh Kumar had also denied their participation in the crime. In support of the prosecution case 14 witnesses were examined and out of these witnesses Durga Prasad PW 1 and Lallu PW 3 are the eye witnesses of the occurrence. 9. Durga Prasad PW 1 had deposed on oath that the deceased Shitla Prasad was his real brother and the other two deceased Lallan and Hira were the friends of Shitla Prasad. He had also stated that he knew the accused persons fully well prior to the occurrence. 10. 9. Durga Prasad PW 1 had deposed on oath that the deceased Shitla Prasad was his real brother and the other two deceased Lallan and Hira were the friends of Shitla Prasad. He had also stated that he knew the accused persons fully well prior to the occurrence. 10. Durga Prasad further stated that Shobhnath is the cousin of appellant Rajendra and a theft was committed at the house of Shobhnath about 20 or 22 days prior to the occurrence. He further stated that three days prior to the occurrence, appellant Rajendra complained to him that the theft at the house of his brother Shobhnath was committed by Shitla Prasad, Lallan and Hira but on enquiry, Shitla Prasad denied that he had committed the theft at the house of Shobhnath whereupon DURGA Prasad in the evening preceding the date of the occurrence had told the appellant Rajendra that Shitla and others had not committed the theft at the house of Shobhnath. He further stated that while he was conveying the aforesaid information to Rajendra appellant the appellant Rajman who was present there said to Rajendra appellant " Kyon in sub ke chakkar men pare ho. Apney tariqey se nipat lengey." DURGA Prasad further stated that the next morning at 9.15 a. m. when he was passing near the Lanka crossing for hair dressing he heard the sound of firing from the side of 'Asha Tankan Vidyalya' and he noticed the appellant Rajendra armed with a double barrel gun and had seen Hira deceased lying on the Patri. He stated that, thereafter, the appellant Rajendra had fired two more shots on Hira. The accused Dinesh Kumar exhorted Rajendra to kill Shitla whereupon appellant Rajman had shot on Shitla who fell down and thereafter, Rajman had also shot down Lallan after taking the gun from the hands of Rajendra and, the, all the four accused had run away in the lane which goes in the south of ' Asha tankan Vidyalya'. He had further stated that ha had seen the occurrence from a distance of 15 to 20 steps. He had further stated that ha had seen the occurrence from a distance of 15 to 20 steps. He further stated that after the occurrence when be went near the injured he found Hira Lal and Lallan Prasad, injured and went towards B.H.U. Hospital but on the way he met with his family members and after leaving the injured brother Shitla Prasad with them for taking him to the B.H.U. Hospital, he himself, then prepared a report Ex. ka 1 and went to the Police Station Bhelupur where he lodged the report at 10.40 a. m. He admitted that his house lies at a distance of wore than a furlong from the place of the occurrence. He has also admitted that there was Tea and betal shops around the place of occurrence which were open when the occurrence had taken place. Admittedly Durga Prasad is the real brother of the deceased Shitla Prasad and is also a chance witness. In the circumstances his evidence deserves close scrutiny for placing raliance on his testimony. 11. The learned Sessions Judge after dealing with the case against co- accused Krishna Nand Rai and Dinesh Kumar had acquitted them on the charge under Section 302/34 IPC and the trial court had given good reasons in not placing reliance on the evidence of Durga Prasad, complainant regarding the participation of Krishna Nand Rai and Dinesh Kumar in the occurrence. No doubt the FIR was lodged at 10.40 a. m. with promptness by the complainant Durga Prasad but in view of the statement in paragraph 18 of his cross examination it is abundantly clear that the FIR of the occurrence was lodged at the police station with the help of external aid, which had created suspicion regarding the genuineness of the FIR Durga Prasad PW 1. has clearly stated in paragraph 14 of his statement that he does not know the parentage and address of accused Kirshna Nand Rai. He has further admitted that the Investigation Officer did not interrogate him on this point. He further stated in para 18 of his evidence that he did not know Dinesh Kumar prior to this occurrence. Moreover, PW 3 Lallu had stated in his evidence that Krishna Nand Rai and Dinesh Kumar accused persons in the dock were not the same persons who had participated in the occurrence in the murder of the three deceased. He further stated in para 18 of his evidence that he did not know Dinesh Kumar prior to this occurrence. Moreover, PW 3 Lallu had stated in his evidence that Krishna Nand Rai and Dinesh Kumar accused persons in the dock were not the same persons who had participated in the occurrence in the murder of the three deceased. Therefore, appears to be substance in the contention of the appellants that they were falsely implicated in the case by the complainant Durga Prasad in league with the police. 12. As far as the alleged motive is concerned, it also appears to be very weak. Durga Prasad PW 1 has admitted that appellant Rajendra and his cousin Shobhnath were residing separately from each other. The learned counsel for the defence has rightly urged that in view of the fact that Rajendra appellant and his cousin Shobhnath had resided separately it does not appear believable that for making a probe into the theft case of Shobhnath, the appellant Rajendra and his friends would have committed the murder of the three deceased. It is, no doubt, true that sometimes the facts of the case appear stranger than fiction but in the ordinary course of human conduct, the alleged motive can very well be weighed on judicial scale of probability. The alleged motive is, therefore, too remote for the appellant to have committed the murder of the three deceased in connection with the theft which took place at the house of Shobhnath on 29-6-1974 in which none was named in the FIR lodged by Shobhnath at the police station, Bhelupur. We, are fully conscious that absence of motive is no ground for discarding the occular testimony of the eye witnesses but in this case, the evidence of Durga Prasad complainant is itself highly suspicious and it is also highly doubtful if he was present at the scene of the occurrence. His conduct of handingover his injured brother to his family members while on way to the B.H.U. Hospital for going back to the Police Station for lodging of the FIR is against the normal human conduct. The deceased Shitla Prasad who was his real brother and who was breathing between life and death could not be left to the family members of Durga Prasad by him if Shitla Prasad was being taken by Durga Prasad from the place of occurrence to the hospital. The deceased Shitla Prasad who was his real brother and who was breathing between life and death could not be left to the family members of Durga Prasad by him if Shitla Prasad was being taken by Durga Prasad from the place of occurrence to the hospital. It was further pointed out by the learned counsel for the appellants that Durga Prasad had stated that his shirt and hands had become blood stained by the blood of Shitla Prasad in removing him but they were not noticed by the Investigating Officer though the Investigating Officer Jagdish Tewari PW 10 had stated in para 11 of his cross-examination that he had seen the blood stains on the shirt and hands of the complainant Durga Prasad but he has neither made any reference to this fact in his case Diary nor he had taken the clothes of Durga Prasad in his custody. Therefore, it appears probable that Durga Prasad, PW 1 had made incorrect statement that his hands and clothes had become blood stained in removing Shitla Prasad from the place of the occurrence for taking him to the Hospital. It was pointed out by the learned Counsel for the appellants that Durga Prasad has admitted in his evidence that he was not interrogated by the police at all. It was also urged by the learned counsel for the appellant that Durga Prasad had also admitted in his evidence that after Hira was shot, none of the two deceased Shitla Prasad and Lallan had made any attempt to run away from the place of occurrence. This conduct is also quite unusual of Shitla and Lallan deceased in not running away from the scene of the occurrence after Hira had fallen down on receiving the injury and is not at all believable as stated by the complainant Durga Prasad. A similar statement was also made by the other witness Lallu PW 3. 13. In view of the above mentioned discrepancy in the evidence of Durga Prasad, we come to the irresistible conclusion that Durga Prasad PW 1 in all probabilities was not present at the scene of occurrence and the FIR Ex. ka 1 which was lodged at the Police Station Bhelupur at 10.40 a. m. was lodged at the police station with the help of consultation and external aid and, therefore, no reliance can be placed on his testimony. 14. ka 1 which was lodged at the Police Station Bhelupur at 10.40 a. m. was lodged at the police station with the help of consultation and external aid and, therefore, no reliance can be placed on his testimony. 14. The other witness Lallu PW 3 has also claimed himself to be an eye witness of the occurrence. He is a milkman who resides in Mohalla Naiya, Sankat Haran which lies at a distance of 1 1/2 or 2 furlongs from Lainka crossing. He stated that at the time of the alleged occurrence at about 9.30 a. m. while he was returning after distributing milk to his customers he had heard the sound of firing near Lanka crossing and he had seen four persons on the Patri in front of the shop. He stated that out of four persons two were the appellants Rajendra and Rajman and further stated that the accused Krishna Nand Rai and Dinesh Kumar who were present in the Dock were not amongst the four assailants who had participated in the occurrence in killing the three deceased. He further stated that appellant Rajendra was armed with a double barrel gun and he had fired on Hira who fell down injured on the spot on the Patri. He further stated that Rajendra appellant had also fired two more shots on Hira who was lying on the Patri. He further stated that Rajendra appellant had also fired on Shitla on the instigation of appellant Rajman. He also stated that Lallan deceased who was requesting the assailants with folded hands to forgive him was also shot down by the appellant Rajman after taking the gun from the hands of Rajendra appellant. He further stated that the appellants after the occurrence had run away with their companions. Lallu PW 3 is no doubt a chance witness and his evidence also deserves a very close scrutiny for placing reliance on his testimony. It was contended by the learned counsel for the appellants that the evidence of Lallu PW 3 is belied by the medical evidence. He had stated in his evidence before the court that Rajendra appellant had fired his gun on the deceased from a distance of 5 to 7 steps. He has further stated that at the time of firing, the barrel of gun was at a distance of 5 to 6 steps from the body of the three deceased. He had stated in his evidence before the court that Rajendra appellant had fired his gun on the deceased from a distance of 5 to 7 steps. He has further stated that at the time of firing, the barrel of gun was at a distance of 5 to 6 steps from the body of the three deceased. 15. According to the statement of Dr. B. N. Chakravarti PW 7 the gun shot injuries found on the person of Hira had black margins and pellets wadding were removed from the chest cavity on internal examination, and likewise, blackening was also found on the margins of the wound on the body of Shitla Prasad and Lallu deceased and 3 shots were also recovered from the chest. The learned counsel for the appellants has referred to the following passage of the Medical Jurisprudence of Glaister 1.966 edition a page 248 :- "If a shot is fired close to the body surface upto a few inches, the shot enters enmass, and in addition the liverated gases and flame lacerate the tissues, which show evidence of burning, carbon deposit, and powder tattooing. The wads may be forced into the wound, and this may prove an important clue to the class of cartridge used. " 16. Similarly the learned counsel for the appellants has drawn our attention to the following passage of Modi's Medical Jurisprudence, 1975 Edition at page 225 and 226 :- "Page 225 :-If a firearm is discharged very close to the body of in actual contact, subcutaneous tissues over an area of two or three inches round the wound of entrance are lacerated and the surrounding skin is usually scorched and blackened by smoke and tattooed with unburnt grains of gunpowder." The effects produced by small shots fired from a gun shot vary according to the distance of the weapon from the body, and coking device. A charge of small shot, fired very close to, or within a few inches, of the body, enters in enmass like a single bullet making a large irregular wound with scorched and contused edges, and is followed by the gasses. of the discharge which greatly lacerate and rupture the deeper tissues. A charge of small shot, fired very close to, or within a few inches, of the body, enters in enmass like a single bullet making a large irregular wound with scorched and contused edges, and is followed by the gasses. of the discharge which greatly lacerate and rupture the deeper tissues. Particles of unburnt powder expelled from the weapon behind the missile are driven to some of them are found embedded in the wound and the surrounding skin which is also singed and balanced by the flame and smoke of combusion. " On the basis of the authorities mentioned above, the learned Counsel for the appellants has rightly urged that from the nature of the injuries found on the three deceased, the gun was fired from a very close contact with the body and the injuries were caused from a distance of 6 inches to 9 inches and, therefore, the evidence of Lallu (PW 3) is clearly inconsistent with medical evidence in this case. We, therefore, hold that Lallu (PW 3) had also not seen the occurrence. The learned Sessions Judge has tried in vain to bring the evidence of Lallu PW 3 in conformity with the medical evidence. It is not believable at all that from a distance of 5 to 7 steps, the waddings and pellets would enter enmass in the body of the three deceased, as held by the trial court. 17. We therefore, are not prepared to place reliance on the testimony of Lallu, PW 3 also in view of the infirmities in his evidence as shown above and we hold that Lallu (PW 3) is also not a reliable witness. 18. Now coming to the evidence of the Ballastic expert that the recovered four empty cartridges Ex 3 to 6 from the spot were fired from the double barrel gun Ex 1.0 is also of not any help to the prosecution as the alleged gun admittedly is a licensed gun of one Kallu Singh and it was recovered by the police from the possession of Sidhraj Singh, s/o Kallu Singh at village Narrotampur, vide recovery memo Ex ka-4. The prosecution has failed to show any relationship of the appellants with Kallu Singh or his son Sidhraj Singh. It had also not been shown by the prosecution as to how the gun came into the hands of the appellants. The prosecution has failed to show any relationship of the appellants with Kallu Singh or his son Sidhraj Singh. It had also not been shown by the prosecution as to how the gun came into the hands of the appellants. The Investigating Officer, Jagdish Tewari (PW 10) has also admitted that no complaint of either theft or missing of the gun was lodged by Kallu Singh. Therefore, the contention of the learned counsel for the appellant that actually Kallu Singh was involved In the occurrence and the appellants were falsely implicated in the case in order to screen Kallu Singh cannot be ruled out. Having considered all the facts and the circumstances of the case, we come to irresistible conclusion that the prosecution has failed to prove the charge levelled against the appellants and, therefore, the order of conviction and sentence recorded by the trial Court cannot be sustained. 19. In the result, the appeal is allowed, the conviction and sentence recorded by the trial Court are set aside. The appellants are on bail. They need not surrender. Their bail bonds are discharged. Appeal allowed.