JUDGMENT I.P. Singh, J. 1. Virendra Pal Singh alias Putani Singh, Shiv Charan Singh alias Dhuttey and Harish Chandra convict appellants have preferred this appeal against the judgment and order of Sri R. K. Gupta, Sessions Judge, Etah dated 11-5-1977, passed in Sessions Trial No. 261 of 1976 convicting and sentencing Virendra Pal Singh alias Putani Singh under section 302, IPC and the other two appellants under section 302/149 IPC to imprisonment for life as well as under section 148, IPC to one year R. I. Both the sentences were to run concurrently. 2. The prosecution case is that on 19-2-1975 at about 2.00 P. M. Suraj Pal Singh, deceased, accompanied by his son Dinesh Pal Singh complainant PW 1 were passing through Sabzi Mandi Ki Gali in the town of Aliganj, district Etah. Virendra Pal Singh alias Puttaai Singh appellant carrying a Tamancha while other two appellants Shiv Charan Singh alias Dhuttey and Harish Chandra carrying guns accompanied by two other unknown persons, who also carried guns, arrived from the opposite direction in the said Gali. Shiv Charan Singh alias Dhuttey appellant shouted at the deceased to stop. Hearing the said challenge Suraj Pal Singh, deceased, took a turn (to escape) but Virendra Pal Singh alias Putani Singh appellant opened fire which hit the deceased, who fell down and died on the spot. According to the prosecution this occurrence was witnessed by Dinesh Pal Singh complainant PW 1. Raj Bahadur Singh PW 2, Jang Bahadur Singh PW 3, Ram Vir Singh PW 4 and few others named in the FIR. These witnesses chased the assailants who had taken to their heals, but those assailants threatened with their fire arms that if any one would advance he too would be killed. Accordingly the chase was given up. According to the prosecution there was motive for this murder because Virendra Pal Singh and Harish Chandra appellants were inimical to the deceased and they had on many occasions entered into conspiracy with others to kill the deceased. The FIR of this incident was lodged by Dinesh Pal Singh complainant PW 1 the son of the deceased, at police station Aliganj, two furlongs away, the same day at 2.25 p. m. 3. The post mortem examination of the deceased was conducted on 20-2-1975 at 11.50 a. m. by Dr. S. N. Bhatnagar, Dy.CMO, Etah. The FIR of this incident was lodged by Dinesh Pal Singh complainant PW 1 the son of the deceased, at police station Aliganj, two furlongs away, the same day at 2.25 p. m. 3. The post mortem examination of the deceased was conducted on 20-2-1975 at 11.50 a. m. by Dr. S. N. Bhatnagar, Dy.CMO, Etah. He found the following ante-mortem injuries on the person of the deceased 1. 1.2 cm x 1.5 cm x cavity deep. 2. 15 cm x 0.75 cm x cavity deep See Diag. 1 No tattooing of wound, margins, no scorching, 3. 1 cm x 0.75 cm x cavity deep Small amount bleeding margins 4. 0.5 cm x 0.5 cm x cavity deep inverted. B. Wounds of exit. 1. Gunshot lacerated wound everted margins lot of blood oozing out 1 cm x 1 cm cavity deep left side chest 6 cm above and to the right of left nipple. 2. Gunshot lacerated wound 1.5 cm x 0.5 cm cavity deep left side chest 5cm above no.1 3. Gunshot lacerated wound 0.3 cm x 0.4 x cavity deep 13 cm to then right of injury no.2. The internal examination revealed that second, third, fifth and sixth ribs were fractured. The pericardium at correspondance to the ribs was punctured. 4. Eight accused including the three appellants were put up for final inasmuch as charge of conspiracy under section 120-B, IPC was also framed against the said eight accused apart from the charge under section 302, 302/149 and 148, IPC which was specifically framed against the three appellants The appellants took the plea that they were falsely implicated in the case due to party bandi and enmity. They denied their participation in the crime. The prosecution in all examined 20 witnesses. Besides the Court had examined one witness as CW 1. These witneszes fell into three categories. Some were formal, others were on the charge of conspiracy while Dinesh Pal Singh PW I, Raj Bahadur Singh PW 2, Jang Bahadur Singh PW 3 and Ram Vir PW 4 were eye witnesses. 5. After assessing the evidence on the record the learned Sessions Judge convicted and sentenced the three appellants as already mentioned above. They as well as the remaining five were acquitted of the charges under section 120-B, IPC. 6. 5. After assessing the evidence on the record the learned Sessions Judge convicted and sentenced the three appellants as already mentioned above. They as well as the remaining five were acquitted of the charges under section 120-B, IPC. 6. The prosecution case against the appellants, therefore, rests on the evidence of the eye witnesses coupled with the alleged motive on their part to commit this crime. So far as the motive is concerned it was mentioned in the FIR that there was long standing enmity between the deceased and Virendra Pal Singh and Harish Chandra appellants. The appellants have also taken the plea that they have been implicated in the case due to enmity and party bandi. So the mutual enmity is an admitted fact. This fact would provide for the alleged motive as well as could be the reason for false implication. However, we need not dilate upon this aspect of the matter because the prosecution has relied upon direct evidence of the occurrence. Where direct evidence is led the motive recedes into the back ground and the fate of the case, rests on the assessment of the evidence of the eye witnesses. The learned Sessions Judge has for good reasons not placed any reliance on the evidence of Ram Vir PW 4, we, therefore, would not touch his evidence. 7. Jang Bahadur Singh PW 3 belongs to village Kela; as per admission of Dinesh Pal Singh complainant PW 1 in his examination- in- chief- kela village is about 5kms. away from Aliganj. JANG Bahadur Singh has stated that on that very date he had gone to Aliganj to purchase some house hold articles. In that connection he has stated that at about 2.00 p. m. he happed to be at the corner of Sazbi Mandi and saw Suraj Pal Singly and his son Dinesh Pal Singh and Raj Bahadur Singh PW 2 entering the Gali from that corner. He further stated that it was then that the occurrence took place. He narrated the facts of the occurrence in accordance with the prosecution case. However it becomes obvious from his narration above that he was a chance witness He has admitted in his cross-examination : "Ye mauke ki baat thi ki gali ke more par maujud tha. Jab yah vakya huwa. Agar jara bhi dahine gali se dakkin hota to kuch bhi nanhi dekh pata. However it becomes obvious from his narration above that he was a chance witness He has admitted in his cross-examination : "Ye mauke ki baat thi ki gali ke more par maujud tha. Jab yah vakya huwa. Agar jara bhi dahine gali se dakkin hota to kuch bhi nanhi dekh pata. Thus a split second difference brought him at the place from where he could see the occurrence. We do not feel satisfied that the scale should be made to tilt against the appellants on this chance evidence dependent upon split second opportunity. This assumes significance when otherwise also this witness does not seem to be independent. He in his cross- examination avoided admitted that Sala of Randhir Singh, who was brother of Suraj Pal deceased was his first father-in-law (he had married twice). In this way he avoided to admit his apast relationship with the deceased. Again he admitted that Subedar is his real uncle. However, he expressed his ignorance as to whether said Subedar had given evidence against Virendra Pal Singh alias Putani Singh appellant in a murder case in the year 1962. In this back ground we feel it unsafe to place any reliance on this witness. He fails to inspire our confidence. 8. Raj Bahadur Singh PW 2 is also resident of village Kela. He is lekhpal of village Daryaoganj. In his examination-in-chief he has stated that on the date of the occurrence he had finished his work in Tahsil Aliganj and at about 2.00 p. m. had come to the gate of the Tahsil to proceed to bus stand where he met Suraj Pal deceased and his son Dinesh Pal Singh complainant PW 1. He joined them inasmuch as the deceased was telling his son that he had to pick up a few things kept by him at the house of Keshav and thereafter he would get his clothes made. He explained that as the way to the bus stand also passed by the house of Keshav so he too joked them. He added that when they had gone three to four paces in the Gali of Keshav they saw the three appellants accompanied by 2-3 unknown persons armed with Tamancha and Guns coming from the opposite side. He explained that as the way to the bus stand also passed by the house of Keshav so he too joked them. He added that when they had gone three to four paces in the Gali of Keshav they saw the three appellants accompanied by 2-3 unknown persons armed with Tamancha and Guns coming from the opposite side. He stated that seeing them Suraj Pal Singh deceased turned back (turned to the east) and at that time Shiv Charan Singh alias Dhuttey appellant shouted at him to stop and it Was then that Virendra Singh fired at the deceased, who was hit and as a result fell down and died there. The appellants made good their escape. In his cross-examination he admitted that in the year 1962 Virendra Pal Singh alias Putani Singh appellant was prosecuted for the murder of one Prem Pal. His real brother Hukum Singh and nephew Rajendra Singh had given evidence against Virendra Pal Singh appellant. However, he was acquitted. The argument advanced on behalf of the appellants is that this witness RAJ Bahadur Singh PW 2 on his own showing could be inimical to Virendra Pal Singh and for that matter to this relation Shiv Charan Singh appellant. Of course, Harish Chandra appellant is not related to Virendra Pal Singh appellant but even then the enmity of this witness RAJ- Bahadur Singh PW 2 against Virendra Pal Singh and his relation Shiv Charan Singh appellant is to be taken into account for assessing his evidence. In his cross-examination Raj Bahadur Singh PW 2 has admitted that he had not stated before the I. O in his statement under section 161, CrPC that he had gone to Aliganj at about 9.30 a. m. and had taken his papers from his room and thereafter worked at the Tahsil up to 2.00 p. m. Again he stated that in his statement before the CID Inspector he had mentioned that on the particular date he had worked in the Tahsil. However, this statement did not find place in the statement recorded by the CID. Inspector and the witness could not explain why his said statement was not there. He further admitted that he had stated before the CIO Inspector that after taking his registers from his room he had proceeded to the bus stand to go to Daryaogahj. However, this statement did not find place in the statement recorded by the CID. Inspector and the witness could not explain why his said statement was not there. He further admitted that he had stated before the CIO Inspector that after taking his registers from his room he had proceeded to the bus stand to go to Daryaogahj. He confirmed the fact that he had gone to his room at 9 30 a.m. and after talcing his registers from there he had proceeded to the bus stand to go to Daryaoganj. Again to a question put by the Court he admitted that he had not stated any where prior to his statement in the court that on that day he had worked at Tahsil. He again confirmed that he had stated before the I. O. that after taking registers from his room he had proceeded to the bus stand. He had also not stated before the I. O. that there was any talk between Suraj Pal Singh and his son that the deceased was to pick up some articles kept at the house of Keshav. The learned counsel for the appellants characterised this omission as material contradiction. The Explanation to Section 162, CrPC reads as follows ; "An omission to state a fact or circumstance in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be question of fact." The presence of the witness at 2.00 p. m. in the Gali in question is a relevant fact and if the witness never gave out the circumstances or reasons for his presence at the spot at the earlier opportunity when the statement was recorded during the investigation then the reason advanced during the course of the statement in the court would be nothing but an after thought and the omission in the context would certainly amount to contradiction. We, therefore, find it difficult to place any reliance on this witness also. 9. The only other witness that remains is Dinesh Pal Singh complainant (PW 1) the son of the deceased who on the date of the occurrence was aged about 16 years. We, therefore, find it difficult to place any reliance on this witness also. 9. The only other witness that remains is Dinesh Pal Singh complainant (PW 1) the son of the deceased who on the date of the occurrence was aged about 16 years. Dinesh Pal Singh has stated in his examination in chief that in the days of the occurrence he was a student of D.A.V. School Aliganj. On 19-2-1975, according to him. his father, the deceased, had come to him at about 9.30 A. M. At that time he was having his meal. He even offered meal at his father who informed him that he had already taken his meal and that he had simply come to fix up with him that he should meet him at 2.00 P. M. at the Tahsil so that his clothes could be made. After having this appointment with his father he reached the Tahsil at that time and it was then that his father told him that before they get the clothes made he would like to pick up his articles which were kept at the house of Keshav. According to him, it was just then that Raj Bahadur Singh (PW 2) met them at the gate of the Tahsil and they three proceeded to the Gali in question where the incident took place. He narrated the incident in terms of what he reported in the HR. The argument advanced on behalf of the [prosecution is that since there was an appointment with the boy and he had also lodged the FIR immediately, within 25 minutes of the occurrence, so there can be no doubt about his presence at the spot. The argument is that even if other witnesses are not relied upon then the conviction of the appellants can be upheld on the basis of the solitary testimony of Dinesh Pal Singh (PW 1). 10. However, the learned counsel for the appellants has pointed out that the theory of appointment with his father to meet at 2.00 P. M. at the gate of Tahsil had never been disclosed in the FIR nor in his statement under section 161, CrPC. The fact that he did not mention this fact before the I O. is admitted by him. The fact that he did not mention this fact before the I O. is admitted by him. The said statement under section 161, CrPC also does not contain the assertions that his father had come to him in the morning and had asked him to be at the Tahsil gate by 2.00 P. M. These omissions, as already discussed above are relevant and significant in the instant case because they go to the very root of the case to determine as to whsther he was present at the spot or not. As admitted to Dinesh Pal Singh (PW 1.) he was a student. He admits that sixth period started from 1 50 P. M and he had got himself marked present by 1.45 P. M. in the 2nd meeting. Normally he was expected to be attending his class at 2 P. M. Since his deposition is against the natural conduct and expectations so he would be treated as a chance witness of the occurrence. It is also pointed out from the evidence on the record by the learned counsel for the appellants that he was marked present in the school which is taken after the recess period. The witnesses Dinesh Pal Singh complainant (PW 1) has stated that he was rather late in the morning so his attendance was not marked in the first meeting and, therefore, he was keen to get marked his attendance after the recess in the second meeting. He stated that since his period was vacant so he had gone to join his father at the Tahsil at 2.00 P. M. The only reason given is that his father had offered him to get his clothes made. This aspect does not appeal to us. There was no urgency for getting the clothes made. If the clothes were to be made that very day that could be done after school hours Therefore, the theory of getting the clothes made for the boy at 2 P. M. does not convince us. 11. Village Kela is five miles away from Aliganj. It is in evidence that after the occurrence the relations of the deceased had reached Aliganj from village Kela by 4.00 P. M. The witnesses discussed earlier are accidently also from Kela. 11. Village Kela is five miles away from Aliganj. It is in evidence that after the occurrence the relations of the deceased had reached Aliganj from village Kela by 4.00 P. M. The witnesses discussed earlier are accidently also from Kela. The argument of the learned counsel for the appellants is that the FIR was not lodged at 2.25 P. M. but was lodged much after 4 P. M. after the relations of the deceased or other persons belonging to Kela had arrived at the spot. 12. The inquest report was also started thereafter at 5.00 P.M. We would like to point out that the age of the boy at that time was about 16 years and since after the occurrence he would have been in a state of great shock it appears very doubtful that he would immediately scribe down the report of the incident and lodge it at Police Station without any loss of time within 25 minutes. To our mind the said report appears to have been lodged too promptly. Looking to over all circumstances we find it difficult to place full reliance on the testimony of Dinesh Pal Singh (FW 1). As a result of the above observations the prosecution has failed to establish their case beyond all reasonable doubt. The appeal must succeed. 13. The appeal is allowed. The convictions and sentences awarded to each of the appellants are set aside. All the appellants are acquitted of the charges framed against them. They are on bail. Their bail bonds are cancelled and sureties discharged. Appeal allowed.