JUDGMENT S. I. Jafri, J. 1. Babu Ram, Devi Dayal and Raj Narain appellants have filed this appeal against the order of conviction and sentences recorded by Sri R. P. Jain, Sessions Judge, Etawah by his judgment dated 19-2-1977. BABU Ram appellant was convicted under Section 302 IPC and sentenced to life imprisonment He was further convicted u/Sec.324 IPC read with Section 3 IPC and sentenced to one years' R. I. and also under Section 323 read with Section 34 IPC and sentenced to six months' R. I. Devi Dayal and Raj Narain appellants were convicted under Section 302 read with Section 34 IPC and were sentenced to life imprisonment. They were also convicted under section 324 IPC read with Section 34 IPC and sentenced to undergo one years' R.I. Appellant Devi Dayal was further convicted under Section 323 read with Section 34 IPC and sentenced to serve out six months R. I. whereas appellant Raj Narain was convicted under Section 323 read with Section 34 IPC but he was sentenced to undergo R. I. for nine months. 2. Alongwith appellants, one Brahmadin was also named as accuse in the First Information Report but he died before the commencement of the trial. Appellants Babu Ram and Devi Dayal are brothers and they are sons of Bansi Dhar, resident of Dhan Wali, Police Station Bidhuna, District Etawah. Appellant Raj Narain is the sister's son of Babu Ram and Devi Dayal. Accused Brahma Din is said to be the Khandani of appellants Babu Ram and Devi Dayal. 3. It is alleged that one Kali Charan was the brother of accused Brahma Din. Kali Charan was issueless. The complainant Ramesh Chand and his brother Sri Kishan were residents of village Nandpur but in the year 1968 the aforesaid Kalicharan and his brother Brahma Din brought Sri Kishan PW 7 in their house and kept him with them and also gave him education etc. They also executed a sale deed of their land and house in favour of Sri Kishan his brother and father and ultimately in the year 1972 Kalicharan adopted Sri Kishan as his son and he also deposited Rs. 2000/- in the post office at Bidhuna and he made Sri Kishan as the nominee of that amount but subsequently Brahma Din was offended with Sri Kishan and his brother Ramesh Chand. 4. 2000/- in the post office at Bidhuna and he made Sri Kishan as the nominee of that amount but subsequently Brahma Din was offended with Sri Kishan and his brother Ramesh Chand. 4. Kali Charan breathed his last on 27-12-1974 and Sri Kishan had performed all the ceremonies in connection with his death. Brahma Din and Babu Ram appellants wanted that the amount deposited by KALI Charan should be given to Brahma Din and a case was also launched by Sri Kishan for Marpit against Babu Ram and others. Babu Ram also wanted that the case launched for marpit may be compromised but Sri Kishan and his brother were not well disposed for compromise. Sri Kishan and his brother and uncle Mohan Lal kept on residing in the house of Kali Charan in Village Dhanwali 5. The case of the prosecution in brief is that on 28-12-1974 at about 7.30 a. m. Ramesh Chand PW 1, Sri Kishan PW /, his uncle Mohan Lal and Udhan and Raghunath Singh and Shivnath were warming up at the Alao at the door of Kali Charan and the appellants accompanied by Brahma Din arrived there. Appellant Babu Ram was armed with his licenced gun, Devi Dayal and Brahma Din possessed Kantas and Raj Narain had lathi in his hand. The accused shouted abuses to Sri Kishan and his brother and declared that the matter should be decided that very day. Brahma Din instigated and incited his companions to finish them and consequently, all the accused started dealing blows to Sri Kishan and others On hearing the noise, Smt. Shyam Kali, mother of Sri Kishan and Ramesh Chand also rushed out of their house. Babu Ram opened fire at her as a result of which she stumbled down. Ramesh Chand PW 1, his brother Sri Kishan PW 7, his uncle Mohan Lal and his mother Smt. Shyam Kali sustained injuries. The accused after causing injuries had ran into the house of Babu Ram appellant The occurrence was witnessed by Raghunath Singh, Sobaran Singh, Prem Singh, Mahendra Pal Singh and others. 6. After the occurrence, Ramesh Chand PW 1 prepared a report of the occurrence and took it to the police station Bidhuna. The accused after causing injuries had ran into the house of Babu Ram appellant The occurrence was witnessed by Raghunath Singh, Sobaran Singh, Prem Singh, Mahendra Pal Singh and others. 6. After the occurrence, Ramesh Chand PW 1 prepared a report of the occurrence and took it to the police station Bidhuna. being lour miles away from the village of occurrence and made over his report to the Head Constable at 9.40 a. m. The Head Constable, prepared a chik report on the basis of the written report handed over by Ramesh Chand PW 1 and also registered a case in the general diary of the Police Station under Section 307 IPC against the appellants and Brahma Din Loknath Singh PW 12, the Station Officer of Police Station Bidhuna was present at the police station when the report Ex. ka. 1 was lodged by complainant Ramesh Chand PW 1 at the police Station. He took up the investigation of the case and recorded the statement of Ramesh Chand at the Police Station. The injured were sent to Bidhuna dispensary where they were medically examined. Smt.Shyam Kali was referred to district Hospital Etawah from Bidhuna dispensary and there she succumbed to her injuries at 5.05 a. m. on 31-12-1974. The Investigating Officer recorded the statement of Mohan Lal and Sri Kishan PW 7 in the hospital at Bidhuna. However, Smt.Shyam Kali was not conscious at that time and therefore, her statement could not be recorded by the Investigating Officer. The Investigating Officer went to the scene of occurrence from Bidhuna dispensary and there, he arrested all the three appellants alongwith Brahma Din from the house of Babu Ram appellant. Loknath Singh also had seized the licensed gun of Baburam from the room of his house prepared the recovery memo Ex. ka.15. He also interrogated Raghunath Singh PW 8, Shivnath Singh and others. He found two empty cartridges, shots and tiklies on the spot and sealed them accordingly and prepared the recovery memo Ex. ka.16. He also found blood stained on the spot and collected blood smeared and unsmeared earth from the site of occurrence. The Investigating Officer also made a report for sending the gun of Baburam and empty cartridges found at the place of occurrence to the Ballastic Expert for examination and report. ka.16. He also found blood stained on the spot and collected blood smeared and unsmeared earth from the site of occurrence. The Investigating Officer also made a report for sending the gun of Baburam and empty cartridges found at the place of occurrence to the Ballastic Expert for examination and report. He was transferred on 20-1-1978, as such the investigation of the case was taken up by S. P. Shukla, Station Officer of police station Bidhuna on 20-2-75. Munna Lal PW 5 converted the case under section 302 IPC from 307 IPC on 1-1-75 on receiving the information of the death of Smt. Shyamkali from P. S. Kotwali Etawah. Doctor K. K. Yadav, PW 3 Medical Officer, Police Station Bidhuna, examined the injuries of Mohan Lal at 10.45 p. m. and he found the following injuries on his person : 1. Lacerated wound 1 1/2 " x 2/10 " x 1/2 " on left eye brow. 2. Swelling cum contusion around the left eye area 1/2 " x 1 " x 1/2" around the eye. According to the Doctor the injuries were simple and were inflicted by means of blunt weapon and appeared to be quite fresh at the time of the medical examination. 7. On the same day at 1 p. m. he also examined Sri Kishan PW 7 and found the following injuries on his person. 1. Lacerated wound 6/10 " x 3/10 " x 2/10 " on left side of the scalp 2 1/2 " above the left ear. 2. Swelling around the injury no. 1 (2 " x 1 1/2 "). 8. According to the opinion of the Doctor, the injuries were simple and were caused by some blunt weapon and were quite fresh at the time of the examination. Doctor Yadav also examined the injuries of Ramesh Chand PW '. the same day at 2 27 p. m. and he found the following injuries on hi person : 1. Incised wound 2 2/10 " x 3/10 " x bone deep on right side of the scalp 1 " above the right ear. 2. Abrasion cum swelling 2 " x 2 " on right scapular spine. 3. Swelling around the right knee joint. 9. According to him, all the injuries were simple and were caused be blunt weapon except injury no. 1 which was Caused by sharp weapon. 10. Duration was about 1 1/4 days. 2. Abrasion cum swelling 2 " x 2 " on right scapular spine. 3. Swelling around the right knee joint. 9. According to him, all the injuries were simple and were caused be blunt weapon except injury no. 1 which was Caused by sharp weapon. 10. Duration was about 1 1/4 days. He also advised X-ray in respect of injury no. 3. Doctor M. L. Bajpai PW 6, Medical Officer, District Hospital Etawah examined the injuries on the person of Smt. Shyam Kali decease on 28-12-1975 at 1.15 p. m. and he found the following injuries on he person. 1. Lacerated wound with irregular margins 7.5 cm x 4 cm x bone deep on the left side forehead just above left eye brow. No blackening or charrin present around the wound. 2. Contusion red on the right upper eye lid 3.5 cm x 1.5 cm eye normal. 11. He could not ascertain the cause of injury no. 1 and advised X-ray in respect of injury no. 1 by way of confirmation as according to him injury no. 1 could be caused by means of a fire arm. Both the injuries of Smt. Shyam Kali were half day old. As stated above, Smt. Shyamkali succumbed to her injuries in the district hospital at 5.05 p. m. on 31-12-1974 and after carrying out of inquest on the dead body of the deceased, her corpse was sent to the medical officer for post mortem examination. 12. Doctor K. S. Kapoor conducted autopsy on the dead body of Smt. Shyam Kali on 31-12-1974 at 3.30 p. m. and he found the following anti mortem injuries on her person : 1. Lacerated wound 2 3/4 " x 1 1/2 " x bone deep on forehead just above left eye brow, frontal bone found fractured and brain matter coming out of wound. 2. Abrasion crusted 1/2 " x 1/2 " over left knee below patella. 3 Abrasion crusted 1 " x 1/4 " on back of right thumb at base. On internal examination, the frontal bone was found fractured in triangular pieces and was depressed. There was also multiple irregular fracture in the scalp. The orbital plate on left side was also fractured. However, there was neither any wound of exit nor entrance in the cavity. Multiple pieces in small of bone were found in the left frontal lobe. 13. On internal examination, the frontal bone was found fractured in triangular pieces and was depressed. There was also multiple irregular fracture in the scalp. The orbital plate on left side was also fractured. However, there was neither any wound of exit nor entrance in the cavity. Multiple pieces in small of bone were found in the left frontal lobe. 13. According to the opinion of the doctor, the death was caused due to injury to the brain. Doctor R. K. Mittal, DW 2, Medical Officer, District Jail Etawah examined the injuries of Brahma Din accused at 10.40 a. m. on 30-12-1974 and he found the following injuries on his person: 1. Abrasion with scab 3 cm x .7 cm vertical left side of forehead being 1 cm above left eye brow. 2. Abrasion with seal 1.5 cm x .8 cm back of right palm in between (sic) of index and middle fingers. 3. Abrasion with scab 2 x .5 cm back right palm being 2 cm behind injury no. 2. 4. Contusion bluish 2 x 2 cm back left elbow. 5. Contusion bluish 4 x 2 cm outer side left forearm being 16 cm left elbow joint. 6. Abrasion with scab back proximal part of left middle finger being 0.5 x .5 cms. 14. According to the opinion of the Doctor, all the injuries were simple in nature and the duration was about two days and the injuries were caused by blunt weapon. Appellants denied the charges attributed to them and pleaded that they were implicated in the case due to enmity. They also examined two witnesses in their defence, namely, Roop Kumar Vishwakarma DW 1 and Doctor R. K. Mittal DW 2. 15. We have heard Sri S. S. Tewari, the learned counsel for the appellants and also the learned counsel for the State at a great length and we are of the view that the prosecution has failed to bring borne the charge against the appellants beyond any reasonable doubt. 16. In support of the prosecution case, 12 witnesses in all were examined and out of them, Ramesh Chand PW 1 Sri Kishan PW 7 and Raghunath Singh PW 8 were examined as witnesses of the occurrence. 16. In support of the prosecution case, 12 witnesses in all were examined and out of them, Ramesh Chand PW 1 Sri Kishan PW 7 and Raghunath Singh PW 8 were examined as witnesses of the occurrence. Sri Radhey Shyam Mishra, Ballastic expert was also examined to establish that the empty cartridge Ex 23 recovered from the spot by the Investigating Officer was the shot which was fired from the licensed gun Ex. 1 belonging to Babu Ram appellant. He has proved his report Ex. ka. 26. Ramesh Chand PW 8 and Sri Kishan PW 7 are the sons of Smt. Shyam Kali deceased. Ramesh Chand stated that on the day of the occurrence at about 7.30 a. m. appellants and co accused Brahma Din armed with their respective weapons as stated above came at his house while he was warming up at the Also at the door of Kalicharan along with Sri Kishan, Raghunath and others. Brahma Din accused exhorted his companions to kill and consequent to the exhortations, the appellants and accused Brahma Din started assaulting him and others. On hearing the noise, Mohan Singh, Prem Singh, Mahendra Pal Singh arrived there and at the same time, his mother Smt. Shyam Kali also emerged from inside the house and Baburam then opened fire with his gun and he, his mother and his brother Sri Kishan and also his uncle Mohan Lal had sustained injuries and, thereafter, the accused had escaped into the house of Babu Ram appellant. On hearing the alarm raised by them, a number of persons had collected outside the house of Babu Ram and they had encircled the house from outside. He further stated that he wrote down a report of the occurrence and proceeded for the Police Station and handed over his report to the Head Constable at the Police Station. 17. PW 7 Sri Kishan has corroborated the statement of his brother Ramesh Chand. He stated that he was brought by Kalicharan in his house together with his brother and parents and he was adopted by him as his son. He further stated that Kalicharan had also deposited Rs. 2000/- in the post office at Bidhuna and he had made him his nominee. He stated that he was brought by Kalicharan in his house together with his brother and parents and he was adopted by him as his son. He further stated that Kalicharan had also deposited Rs. 2000/- in the post office at Bidhuna and he had made him his nominee. He further stated that when Kalicharan met his end on 27-12-1974, all the ceremony relating to his death were performed by him but the brother of Kalicharan, namely Brahma Din accused, wanted himself to get the amount of Rs. 2000.00 deposited by Kali Charan. Brahmadin was also supported by Babu Ram appellant in this matter and there had also ensued marpit earlier for which he had launched a case against Babu Ram and others. He further stated that Baburam appellant and others sent feelers for compromise but he declined to do so. Sri Kishan also stated that on account of firing by Baburam appellant, he had received gun shot injuries alongwith his mother, his brother Ramesh Chand and uncle Mohan Lal. 18. Raghunath PW 8 is a Khandani of Ramesh Chand PW 1. He has also given out statement consistent with the statement of the aforesaid two witnesses. The learned counsel for the appellants pointed out that the oral testimony of these witnesses is incompatible with the medical evidence in as much as that there is a complete absence of gun shot injuries on the person of Smt. Shyam Kali, Ramesh Chand, Sri Kishan and Mohanlal. 19. We have given our anxious thought to this aspect of the matter and we are not prepared to believe the prosecution version that the appellant Babu Ram had fired his gun resulting injuries to Ramesh Chand PW 1, Sri Kishan PW 7. Mohan Lal and Smt. Shyam Kali deceased at about 7.30 a. m. on 28-12-1974. The possibility of the suggestion by the learned defence counsel to the witnesses that the occurrence had taken place early in the morning when it was dark cannot be ruled out. 20. It is no doubt true that Ramesh Chand PW 1 and Sri Kishan PW 7 though highly interested witnesses are injured and their testimony cannot be brushed aside easily. 20. It is no doubt true that Ramesh Chand PW 1 and Sri Kishan PW 7 though highly interested witnesses are injured and their testimony cannot be brushed aside easily. Their statements has to be scrutinised with great care and caution in order to place reliance on their testimony and the injuries on their person do not exclude their presence from the place of the occurrence but mere injuries on their person provide no guarantee that they are telling the truth as their evidence stands in conflict with the medical evidence. This conflict between their evidence and the medical testimony has rendered the veracity of their statements doubtful and even unreliable and cannot be accepted for the conviction of the appellant in this case. It appears that these injured witnesses and also Raghunath Singh PW 8 have concealed the truth as the falsity of their version is quite manifest by the absence of gun shot injuries on the person of the injured, Ramesh Chand, Sri Kishan, his uncle Mohan Lal and his mother Smt. Shyam Kali deceased. We have given our anxious considerations to the evidence of these witnesses and we are fully satisfied that these witnesses have given an untruthful account of the occurrence and concealed the truth which has made their evidence unworthy of reliance. IT was further contended that no independent witnesses was brought in the witness box though a number of independent persons of the village were alleged to have witnessed the occurrence. There appears to be some element of substance in the contention advanced by the defence as there is no explanation on the record as to why independent witnesses who were mentioned in the FIR were not produced during trial by the prosecution. Moreover, immediate motive leading to the occurrence is also wanting in the case and it is, therefore, not understandable as to why all of a sudden, the appellants would attack Ramesh Chand and others at the time of the occurrence. The defence has examined Doctor K. K. Mittal DW 2 Medical Officer, District Jail Etawah who conducted the medical examination of the injuries on the person of Brahma Din accused. The defence has examined Doctor K. K. Mittal DW 2 Medical Officer, District Jail Etawah who conducted the medical examination of the injuries on the person of Brahma Din accused. According to the Doctor, Brahma Din had sustained six injuries on bis person which were though simple, were inflicted by means of blunt weapon and according to an estimate given out by the Doctor, these injuries could be caused to Brahma Din in the morning of 28-2-1974. It was rightly contended by the learned counsel for the appellants that the injuries of accused Brahma Din were not at all explained by the prosecution evidence adduced in this case. The evidence of the prosecution witnesses is further falsified by their failure to explain the injuries on the person of Brahma Din accused and, therefore, the prosecution evidence in this case is rendered tainted with doubts and improbabilities. 21. It is no doubt true that Ballastic Expert Radhey Shyam Misra DW 10 opined that the empty cartridges Ex. 22 found at the place of occurrence by the Investigating Officer was fired from the gun Ex. I belonging to Baburam accused. The first Investigating Officer Looknath Singh PW )2 has stated that he had seized the licensed gun Ex. I bearing No. 2759 belonging to Babu Ram accused from one of the rooms of his house on the day of occurrence. He further stated that he had also found two empty cartridges and tiklies from the place of occurrence the same day during spot inspection and after preparing the recovery memos he had sent the gun and the two empty cartridges in sealed covers to Police Bidhuna from the place of occurrence, through constable Mahabir Singh and Kamal Singh who had deposited them in the Malkhana of the Police Station the same day. 22. Constable Mahabir had filed affidavit Ex. 36 stating that on 28-12-74 he had accompanied the Station Officer to the place of the occurrence from the Police Station Bidhuna and the Station Officer had entrusted him with five sealed bundles containing gun, 2 empty cartridges, blood stained earth etc. for depositing the same at police station Bidhuna and he had deposited them at the Police Station the same day. for depositing the same at police station Bidhuna and he had deposited them at the Police Station the same day. Munnalal PW 5, Head Constable of Police Station Bidhuna stated that he had received five sealed bundles on 28-12-74 sent by the Station Officer from the place of the occurrence through constable Mahabir and he had deposited the same in the Malkhana of the Police Station Bidhuna and he had also made an entry in the Genera Diary of the Police Station about the same and a true copy of the said entry is Ex ka 9. He further stated that on 13-2-75, he had sent two sealed bundles containing gun and empty cartridges to the Ballastic Expert, Lucknow for examination and report through Constable Gajadhar. He made an entry of the same in the General Diary of the police station and copy of the sail entry is Ex ka 4. He further deposed that on 16-2-75 Constable Mahabir had returned to police station Bidhuna with the aforesaid two sealed bundle containing gun and the two empty cartridges after getting them examined by the Ballastic expert at Lucknow. He had deposited the two sealed bundle in the Malkhana of the Police Station and made an entry in the General Diary of the police station and copy of the same is Ex Ka 12 He further deposed that on 27-2-1975 the five sealed bundles concerning the case were sent to Sadar Malkhana through Constable Kamal Singh and to this effect a note in the General Diary was made by constable clerk Sushil Chanc He had identified the signatures of Sushil Chandra the aforesaid General Diary entry, and a true copy of the same is Ex Ka 12. The prosecution has tendered in evidence the affidavit Ex Ka 2 of constable Kamal Sing showing that the constable had taken the five sealed bundles from th Malkhana of Police Station Bidhuna and had deposited them at Sadar Malkhana Etawah the same day. The prosecution has further tendered in evidence the affidavit Ex Ka 12 of Ram Sonehri Lal, Head Constable, Sadar Malkhana, Etawah showing that he had received five sealed bundles, sent by Police Station, Bidhuna on 27-2-75 through constable Kamal Singh and he has deposited them in the Sadar Malkhana the same day. The prosecution has further tendered in evidence the affidavit Ex Ka 12 of Ram Sonehri Lal, Head Constable, Sadar Malkhana, Etawah showing that he had received five sealed bundles, sent by Police Station, Bidhuna on 27-2-75 through constable Kamal Singh and he has deposited them in the Sadar Malkhana the same day. The affidavit Ex Ka 2 has also been filed to show that constable Gajadhar took two sealed bundles containing gun and cartridges from police station Bidhuna on 13-12-75 and produced them before the Ballastic Expert at Lucknow for examination and report and he had returned from Lucknow with the two sealed bundles after examination by the Ballastic expert on 16-2-1975 and he had deposited them in the Malkhana of the Police Station Bidhuna the same day. It may be noted that the licensed gun no. 2759 Ex I belonging to Bah Ram appellant was taken in possession from his house by the Investigating Officer Loknath Singh, PW 12 on 20-12-74 The same day Sub-Inspector also recovered two empty cartridges from the scene of occurrence and kept the gun and also the two empty cartridges in sealed covers. The Investigating Officer bad sent the gun and the empty cartridges alongwith other recoveries from the spot to the Police Station Bidhuna through constable Mahal Singh who had deposited the same in the Malkhana of the Police Static It is stated that the gun and the two empty cartridges remained lying in the Malkhana till 13-2-75 when the gun and the two empties in sealed covers were sent from the Police Station Bidhuna to the Ballas expert, at Lucknow for examination and report through constable Gajadh Constable Gajadhar returned from Lucknow after getting the examination the weapon and the empties done by the Ballastic expert Lucknow on 16-2-75 and deposited the same in the Malkhana of the Police Station Bidhuna. Munnalal, PW 5, head constable, of Police Station Bidhuna had ultimately sent the gun and the two cartridges and other articles of the case to Sad Malkhana Etawah through constable Kamla Singh on 27-2-75 and the sat were deposited in the Sadar Malkhana Etawah the same day. Munnalal, PW 5, head constable, of Police Station Bidhuna had ultimately sent the gun and the two cartridges and other articles of the case to Sad Malkhana Etawah through constable Kamla Singh on 27-2-75 and the sat were deposited in the Sadar Malkhana Etawah the same day. It is, therefor absolutely clear that the gun belonging to Babu Ram appellant and the two empty cartridges recovered from the place of occurrence remained lying to the Police Station Bidhuna for about 48 days and were ultimately sent to the Sadar Malkhana Etawah on 27-2-75. The Investigating Agency did not send the recovered gun and the two empty cartridges to the Sadar Malkhana Etawah from Police Station Bidhuna forthwith in accordance with the provisions contained in the U. P. Police Regulations. This unusual conduct of the Investigating Agency speaks volumes about the tactics adopted by the police and, therefore, it is highly doubtful that the two empty cartridges Exts 22 and 23 were really recovered from the place of occurrence by the Investigating Officer. The suggestion of the learned counsel for the appellant that the empty cartridge Ex 23 was sent to the Ballastic expert for examination after it was fired at the Police Station with the gun Ex 1 of the appellant Ram Babu is not without substance. The possibility that the Investigating Agency had tampered with the alleged recovered empty cartridges from the place of occurrence by replacing it by firing one live cartridge at the Police Station by the gun of Babu Ram appellant cannot be ruled out. In view of the circumstances as stated above we are not prepared to believe that empty cartridge Ext 23 was really recovered from the place of occurrence by the Investigating Officer. 23. Considering all the facts and circumstances of the case, as enumerated above, we are fully satisfied that the prosecution has bitterly failed to bring home the guilt against the appellants. 24. In the result, the appeal is allowed, the order of conviction and sentence recorded by the trial court is set aside. The appellants are on bail. They need not surrender. Their bail bonds are discharged. The trial court is directed to return the licensed gun Ex 1 bearing no. 2759 to Babu Ram appellant. Appeal allowed.