JUDGMENT I. P. Singh, J. 1. Ram Saran Singh and Ganga Singh, convict-appellants have preferred this appeal against the judgment and order of Sri Wahajuddin, the then Sessions Judge, Fatehpur, dated 17-8-1977 passed in Sessions Trial No. 18 of 1977 State v. RAM Saran Singh convicting and sentencing each of them under section 302/34 IPC to imprisonment for life. 2. The prosecution case is that Badri Prasad, deceased, and his son Ram Pratap, complainant, PW 1, in the night between 29 and 30th August, 1976 were sleeping on separate cots in the varandah of their shop situate in Chau Dagra. At about 12.30 in the night Ram Pratap, PW 1, after answering the call of urinating had come to lie down on the cot. He was still awake when the two appellants are said to have reached there, each armed with a gun and instantly both of them simultaneously fired at Badri Prasad and caused his death. It is further alleged that Ganga Singh appellant, re-loaded his gun and thereafter had challenged the incoming witnesses that they should not dare chase them. After extending this threat, they escaped towards north east and then vanished on Bindki Road in the darkness of the night. It is also alleged that at the time of the incident an electric bulb was hanging on the twig of a Neem tree under which one Babu Lal run his beetle shop in a Gumti. At that time on western side hotel of Ram Adhin alias Kallu, PW 2, was open to cater food to the customers. Kallu was present at the hotel while one customer Shyam Kishore PW 3, was taking his food. On hearing the sound of the gun-fire both these witnesses were attracted towards the spot and it is alleged that these two as well as Ram Pratap, PW 11, were able to recognise the two appellants whom they happened to know from before. The written report of this incident was lodged by Ram Pratap alias Bhola, PW 1 at police station Kalyanpur the same night at 2 a. m. at a distance of about 4 miles. 3. The post-mortem examination on the body of the deceased was conducted by Dr. Bal Krishna Agarwai, Medical Officer, Distt.Hospital, Fatehpur, PW 4, on 30-8-1976 at 4.30 P. M. The probable time since death was 3/4 days. 3. The post-mortem examination on the body of the deceased was conducted by Dr. Bal Krishna Agarwai, Medical Officer, Distt.Hospital, Fatehpur, PW 4, on 30-8-1976 at 4.30 P. M. The probable time since death was 3/4 days. This duration fits in with the the alleged hour of the occurrence. The following ante-mortem injuries were found on the person of the deceased. 1. Lacerated gun-shot wound 2-1/2" x 1/2" x bone deep with guttering of its base on the back of R. upperam with R. humrus under injury no. 1 of underlying humrus bone. Blackening and tattooing present around wound. 2. Gunshot wound of entry 1-1/4" x 1" x chest cavity deep on the right side chest in mid clavicular bone 3" below right nipple. Blackening and tattooing present. Direction from right side of left side posteriorly. The internal examination revealed that the liver had a wound 5" x 1" through and through while the small intestine had a wound 1/2" x 1/2" through and through. Two shots and wading piece were recovered from inside the body. In the opinion of the doctor, the cause of death was shock and haemorrhage as a result of gun shot injuries. The injuries were sufficient in the ordinary course of nature to cause death. 4. The defence of the appellants is of denial and they contended that they were falsely implicated in this case due to enmity. They examined one witness Bandi Deen Trivedi. The prosecution examined in all 6 witnesses including three eye witnesses, namely, Ram Pratap alias Bhola, PW 1, Ramadhin alias Kallu, PW 2 and Shyam Kishore PW 3. 5. Learned Sessions Judge after assessing the evidence on record convicted and sentenced each one of the appellants as already mentioned above. 6. The learned counsel for the appellants drew our attention to the seats of the injuries sustained by the deceased and it was argued that most probably they were caused by one fire and not by two. The argument is that in view of this no reliance should be placed on the evidence of Ram Pratap, PW 1 who claims that each of the two appellants had fired one fire from their respective guns. To our mind, this aspect of the case would not be of much importance and would not be material for proper adjudication of this appeal. We refrain from entering into this discussion. To our mind, this aspect of the case would not be of much importance and would not be material for proper adjudication of this appeal. We refrain from entering into this discussion. Learned counsel for the appellants has drawn our attention to the fact that the Investigating Officer had reached the spot at 2.45 a. m. and he had not prepared the inquest report till 7 O'clock in the morning. The argument is that this delay was perhaps caused for want of light and if it was so, the alleged presence of light of electric bulb and of the gas lantern becomes doubtful. But this aspect of the case was never put to the Investigating Officer so as to elicit his explanation on the point. There could be many other reasons for postponing the preparation of the inquest report. We do not attach any importance to this aspect of the matter to exclude the presence of the alleged light. However, the presence or absence of light would be discussed subsequently. 7. Jai Karan Singh, Investigating Officer,, stated in his examination-in- chief that he has reached the spot at about 2.45 ;a. m. (the same night). In his cross-examination he stated that at that time the beetle shop of Babu Lal was open and he had interrogated Babu Lal. Burt this Babu Lal has not been examined. Except the Investigating Officer, no other witness has stated that the shop of Babu Lal was open at that time. Normally that shop would be closed at that hour of the night. Ram Pratap, PW 1, has stated in his cross- examination that his (Babulal's) shop was closed. We do not" place any reliance on uncorroborated statement of the Investigating Officer that betel shop of Babu Lal was open at that time. Accordingly, the argument is that he would not leave the electric bulb hanging by the twig of the Neem tree, even if it was there, lighted. We find much force in this argument and hold that the presence of the said light of the electric bulb is not beyond all reasonable doubt. As regards the alleged gas light at the hotel of Ramadhin alias Kallu, PW 2, we refer to the statement of Kallu, PW 2, that his is a hotel which runs all the twenty-four hours of the day. As regards the alleged gas light at the hotel of Ramadhin alias Kallu, PW 2, we refer to the statement of Kallu, PW 2, that his is a hotel which runs all the twenty-four hours of the day. The site-plan and the evidence on record show that the locality in question is by the side of Kanpur-Fatehpur G T. Road which is called Chaudagra, i. e. crossing of the two roads. Evidently, this hotel is a road-side hotel and we believe Kallu that his hotel remained open throughout the night. Accordingly, the presence of the gas light is taken to be an established fact 8. The question for determination which still remains is as to whether these three eye witnesses had ample opportunities to recognise the assailants. Ramadhin alias Kallu, PW 2, who is the owner of the hotel has stated that he has his seat, i. e.Gaddi on a Takhat placed under the tin shed in front of his hotel room, which consists of three rooms. According to him, he was able to see the assailants from his seat. However, his customer Shyam Kishore, PW 3, who was taking his food at the said hotel has stated that the Gaddi of Kallu, PW 2, is inside one of the rooms and he sits there. That introduces a material discrepancy which is sufficient to throw doubt about the capability of Kallu, PW 2, to be in a position to see the assailants. Shyam Kishore, PW 3, was taking his food in the open in front of the said hotel of Kallu where gas lantern was hanging by the hook attached to the tin shed closed to him. This would place him directly under the light while the place from where the assailants are said to have fired at the deceased would be in the dark. It is a matter of common experience that in such a situation it is difficult for a person who himself is under the light to see at some distance in the dark. We are not convinced that he had an opportunity sufficient enough to enable him to recognise the assailants. 9. Ram Pratap, PW 1 claims that he is resident of village Kaitha and whenever he or his family happend to go to Chaudagra they stayed for the night in the shop of his deceased father. We are not convinced that he had an opportunity sufficient enough to enable him to recognise the assailants. 9. Ram Pratap, PW 1 claims that he is resident of village Kaitha and whenever he or his family happend to go to Chaudagra they stayed for the night in the shop of his deceased father. It was on one of such visits that he happend to be sleeping with his father in the verandah in front of his shop when the occurrence took place. The fact that the FIR was lodged within 1 1/2 hours of the incident would indicate that he was very much present in the locality of the incident. The prosecution places him in the Verandah where the incident took place. However, learned counsel for the appellants has drawn our attention to the fact that Bandi Deen Trivedi, DW 1, has proved certain receipts which bear signature of RAM Pratap alias Bhols. The actual signatures are under the name of Bhola Prasad and not RAM Pratap. The rent receipts are for an accommodation Quarter No. 17 situate on Shivraj Pur-Bindki Road which forms Chaudagra on the Kanpur-Fatehpur G. T. Road. The argument is that even if RAM Pratap PW 1, was present in the locality be was in his said rented quarter and was not present in the Verandah were the incident took place. The argument further is that he was informed of the incident lateron and he then lodged the said FIR. It is pertinent to note that RAM Pratap Singh. PW 1, had rented accommodation on Shivraj Pur-Bindki Road. The argument is that his denial is motivated and is sufficient to throw doubt about his sleeping that night at the place of the occurrence. We find much force in this argument. 10. The alternative argument of the learned counsel for the appellants is that even if these eye-witnesses were there, they had no opportunity to look at the faces of the assailants who, according to the prosecution case, were the appellants. The argument is that the assailants had chosen the hour of assault in the dead of night and would have been the first persons to avoid being detected by any one. The assailants had. found the deceased sleeping and Ram Pratap lying on the cot. It is argued that after shooting at the deceased, they would have lost no time to escape. The assailants had. found the deceased sleeping and Ram Pratap lying on the cot. It is argued that after shooting at the deceased, they would have lost no time to escape. The learned counsel for the appellants supports his argument from the circumstance which he picks up from the statement of Shyam Kishore, PW 3, who stated that when he and Kallu, PW 2, arrived at the spot, then Ram Pratap was shouting 'Badmash mar kar bhag gaye.' The argument advanced is that this indicates that perhaps Ram Pratap had not recognised the appellants as the assailants otherwise he would have immediately named them. We find much force in this argument. The learned counsel for the appellants has further pointed out that the prosecution were aware of this weakness in their case, so they did not hesitate to develop upon the version placed in the FIR. It is pointed out that it is not mentioned in the FIR that after the appellants had opened fire at the deceased, they or anyone of them had carried to ire-load the gun or had threatened the incoming witnesses not to chase them before they actually started running away. However, Ram Pratap, PW 1 stated in his cross-examination that after the appellants had fired at his father, then Ganga Singh, appellant, stepped back and re-loaded his gun and started running towards the east threatening that if any body would chase them, he would be shot at and killed. Similarly, Shyam Kishore, PW 3, stated that the appellants had stood thereafter opening the fires facing south-west. It is argued that this witness and Kallu, PW 2, according to the prosecution, were present towards the west of the place of occurrence at the hotel of Kallu, PW 2, argument is that Shyam Kishore PW 3 has deliberately introduced in his evidence that the appellants had stood there facing southwest so that witnesses could have an opportunity to have a look at their faces. It is argued that they had fired at the deceased from north when the deceased was lying towards their south. They had escaped towards north-east. Accordingly, there was no point in their standing with their faces turned towards south-west. All these statements are categorised improvements on the original prosecution version, We find ourselves in agreement with these arguments. 11. It is argued that they had fired at the deceased from north when the deceased was lying towards their south. They had escaped towards north-east. Accordingly, there was no point in their standing with their faces turned towards south-west. All these statements are categorised improvements on the original prosecution version, We find ourselves in agreement with these arguments. 11. As the result of the above discussion, we feel satisfied that the prosecution has miserably failed to prove their case against the appellants and, therefore, the appeal must succeed. 12. The appeal is allowed. The conviction and sentences awarded against each of the appellants are set aside. They are on bail. They need not surrender to their bail bonds which are hereby cancelled. Their sureties too are discharged. Appeal allowed.