JUDGMENT I P. Singh, J. 1. Kanhai alias Kandhai, Dharam Pal and Pooran convict appellants have preferred this appeal against the judgment and order of Sri H. C. Rastogi, Ilnd Additional District and Sessions Judge, Bareilly, dated 4-5-1976, passed in ST No. A 461 of 1976, State v. KANHAI, convicting and sentencing each one of the three appellants u/Sec.302 read with Sec. 34 IPC to imprisonment for life. 2. Punni, Leeley, Dulli and Jawahar were real brothers residents of Mohalla Khera in town Aonla, district Bareilly. Punni's son was Narain. Kanhai appellant and his late brother Shanti are the sons of Narain. They have a sister also married to Dharam Pal appellant, resident of village Ghure. Shanti's widow is Smt. Roopa. Pooran appellant is real brother of Dharam Pal appellant. Leeley and Dulli died issueless. Dulli left his widow Smt. Krishna. Govind Ram alias Chaila complainant PW 1 and Mangli are sons of Jawahar. Bankey Lal deceased was the son of Mangli. Nem Chandra PW 6 is son of Bankey Lal deceased. One Man Singh resident of village Salanagar is said to be an accomplice of the present three appellants. It is also alleged that daughter of Man Singh is married in the family of Dharam Pal appellant. Of course, this fact is denied by the appellants. Prosecution case is that there had been a long drawn litigation between Govind Ram, complainant PW 1 and Narain, the father of Kanhai appellant over the lands and it was on account of the said enmity that Bankey Lal deceased, the nephew of Govind Ram complainant PW 1, was murdered by the appellants. 3. It is alleged that in the night between 7/8 of June, 1975. at about 1.30. Govind Ram complainant PW 1, his nephew Bankey Lal deceased, Shafi Khan PW 2, Kalyan PW 3, Devi Ram Thekedar and Nem Chandra PW 6 were sleeping on cots in the open in the grove of one Kallu Mian in village Avadanpur within Police Station Aonla to keep a watch of mango crop. A lantern was burning there hung by Balli of the hut nearby. These people were awakened by the sound of footsteps of the approaching persons. They saw Kanhai appellant holding a Tamancha, Dharam Pal appellant holding a double barrel gun, Pooran appellant carrying a lathi and Man Singh holding a Tamancha standing there. A lantern was burning there hung by Balli of the hut nearby. These people were awakened by the sound of footsteps of the approaching persons. They saw Kanhai appellant holding a Tamancha, Dharam Pal appellant holding a double barrel gun, Pooran appellant carrying a lathi and Man Singh holding a Tamancha standing there. They flashed torch on the above named persons, who were sleeping in the grove and shouted as to where was Bankey ? They would see him. (kidhar hai Bankey, aaj usse nipatna hai) on this Govind Ram complainant PW 1 raised alarm, Kanhai and Dharam Pal appellants fired from their respective weapons at Bankey, who was sleeping on a cot, placed to the right hand side of Govind Ram complainant PW 1. While firing at him, they shouted Shanti ki bahu se yari kar le aur jamin ka mukadma jeet le bahut dino me aaj hat aya hai. All the above named witnesses shouted at the assailants as to what they were doing. Whereupon Man Singh fired a shot form his Tamancha (in the air) warning the said witnesses to remain lying quitely on their cots, otherwise they would be killed. Pooran appellant had all the time remained standing holding lathi in his hand near Govind Ram PW 1. Due to fear none of the witnesses interfered. After killing Bankey deceased, the four assailants went away towards west. 4. Govind Ram complainant PW 1 got the report of the incident written from Karan Lal PW 7 at the spot. Govind Ram complainant PW T lodged that written report at Police Station Aonla, 3 furlongs away, the same night i.e. on 8-6-75 at 4.30 a.m. Post-mortem examination on the dead body of Bankey was performed by Dr. S. P. Goel PW 10, Medical Officer, District Hospital, Bareilly on 9-6-1975 at 1.00 p.m. The deceased was aged about 30 years. The probable time since death was about one and a half days. The following ante-mortem injuries were found on his person : 1. Gunshot wound of entry 2.5 cm x 2 5 cm x abdominal cavity deep on the right side of abdomen 18 cm below the axilla in anterior axillary line. Blackening was present, intestine loop was peeing out. One wading piece and 8 shots were recovered from the wound. 2. The following ante-mortem injuries were found on his person : 1. Gunshot wound of entry 2.5 cm x 2 5 cm x abdominal cavity deep on the right side of abdomen 18 cm below the axilla in anterior axillary line. Blackening was present, intestine loop was peeing out. One wading piece and 8 shots were recovered from the wound. 2. Multiple gunshot wounds of entry in an area of 14 cm x 12 cm below right ear on right side neck and back of neck. Four shots recovered from the wounds. 3. Multiple gunshot wounds of entry in an area of 7 cm x 5 cm on left elbow on the medial side. Four shots recovered from the wounds. 4. Abrasion 10 Cm x 8 cm on right side back 10 cm away from injury no. 1. 5. Contusion 3 cm x 3 cm on right side forehead 1 cm above right eyebrow. 5. Internal examination revealed fracture of 9th right rib-Peritonium was ruptured and abdominal cavity was perforated under injury no. 1 partly digested food material was present in the stomach. Intestine was full of faecal matter. It was perforated at one place and two shots were recovered from the same. Liver was badly lacerated and four shots were recovered from it. 500 ml. clotted blood was found in the abdominal cavity. In the opinion of the Doctor death was caused due to shock and haemorrhage, particularly on account of injury no. 1. According to him the injuries were sufficient in the ordinary course of nature to cause the death. 6. Man Singh, the alleged 4th assailant could not be arrested, with the result ST No. A-461 of 1975 proceeded against the present three appellants only. The appellants denied their participation in the said crime. According to them Bankey deceased was killed by the dacoits and the appellants had been falsely implicated in this case due to enmity. Kanhai appellant stated that Govind Ram complainant PW 1 had filed suit in respect of land belonging to Kishan, who had sold the same to him (Kanhai) and his brother Shanti. Govind Ram lost that case. It was further pleaded that there was another litigation between Govind Ram and Narain about the land lying in village Avadanpur, and Kanhai appellant had done pairvi in that case on behalf of his father Narain. Govind Ram lost that case. It was further pleaded that there was another litigation between Govind Ram and Narain about the land lying in village Avadanpur, and Kanhai appellant had done pairvi in that case on behalf of his father Narain. Govind Ram complainant PW 1 lost that case also even in the appeal filed by him. It was contended that on account of this enmity Govind Ram falsely implicated the appellants. He also alleged the enmity with the prosecution witnesses Shafi Khan PW 2, Kalyan PW 3 and Karan Lal PW 7 (scribe of the FIR) Dharam Pal and Pooran appellant attributed their false implication in this case due to relationship with Kanhai appellant. However, the appellants did not lead any oral evidence, but preferred to file certain documents Exts. kha 4 to kha 12 in proof of contended litigations and to show that Kanhai appellant had done pairvi in those cases. 7. The prosecution, in order to establish their case, examined in all 10 witnesses, including Govind Ram complainant PW 1, Shafi Khan PW 2, Kalyan PW 3 and Nem Chandra PW 6. After assessing the evidence on record, the learned Sessions Judge convicted and sentenced the three appellants as already mentioned above. 8. In this appeal, before us, the fact that Bankey was murdered at the alleged place, date and time, is not challenged. The above fact was amply proved from the medical and another evidence on record. The defence contention is that Bankey was done to death in the grove of Kallu Man in the alleged night and at the alleged time by the dacoits. However, no evidence was led about the commission of said dacoity. No other circumstance was pointed out, which could indicate the commission of said dacoity. We, therefore, are of considered opinion that this defence is without any foundation. But this would not mean that the prosecution case is true. The prosecution will have to establish their case on the strength of their own evidence. The prosecution led evidence to prove the pedigree as already described above. The pedigree is also not challenged by the appellants. The only fact denied is that daughter of Man Singh (the alleged fourth assailant) was married in the family of Dharam Pal appellant. The prosecution will have to establish their case on the strength of their own evidence. The prosecution led evidence to prove the pedigree as already described above. The pedigree is also not challenged by the appellants. The only fact denied is that daughter of Man Singh (the alleged fourth assailant) was married in the family of Dharam Pal appellant. Long drawn litigation over certain lands between Govind Ram complainant PW 1 and Narain, father of Kanhai appellant, as alleged by the prosecution is even mentioned in the FIR. The said litigation is even admitted to the defence with a rider, that in those litigations Govind Ram complainant PW 1 was the loser. The prosecution assertion is that on account of enmity following from the said litigation the appellants murdered Bankey. On the other hand, the defence is that since Govind Ram complainant PW 1 was the loser in those litigations, so he remained an aggrieved person and on that account he falsely implicated the appellants in this case. In this way, mutual enmity is an admitted fact. This enmity could cut both ways. However, it was argued by the learned counsel for the appellants that since Govind Ram complainant PW 1 was a frustrated person he entertained grudge and that provided an extra edge to him to slash at the appellants by falsely implicating them in this case. At late, the argument is that the appellants did not have sufficient strong motive against Bankey deceased to murder him. Their wrath, if at all, would be against Govind Ram complainant PW 1 and if according to the prosecution Govind Ram was present on the spot, then probably he would have been the victim and not Bankey Lal. 9. It is also mentioned in the FIR that 2-3 days prior to the present occurrence, Kanhai appellant had beaten Smt.Roopa the widow of his late brother Shanti. At that time Bankey Lal deceased has protested and taken sides with Smt. Roopa and had even, intervened to save her. It is mentioned in the FIR that on this intervention of Bankey Lal deceased, Kanhai appellant had threatened him that he would be done to death within 2 or 4 days. Do char din me tujhe thikane laga dunga. On this last score, there is evidence of Govind Ram complainant PW 1 only and that too on the basis of hear say. Do char din me tujhe thikane laga dunga. On this last score, there is evidence of Govind Ram complainant PW 1 only and that too on the basis of hear say. To our mind the prosecution has not been able to prove any convincing motive on the part of the appellants to murder Bankey Lal. But as the Law of the Land stands motive is only an important link in a case. This link has a tremendous importance in cases based on circumstantial evidence alone. IT has its due place in cases where the direct evidence is also there but in such cases motive recedes to the background and serves only the purpose of providing corroborative evidence to that deposed to by the eye witnesses of the occurrence. In the last analysis, it is the assessment of the direct evidence, which places the final role in holding the persons charged with an offence, guilty or otherwise. Since in the present case the prosecution led direct evidence of the occurrence, the result would depend upon its assessment. 10. According to the prosecution, Bankey was murdered at about 1.30 in the night, when he was lying on a cot in the grove known as grove of Kallu Mian. Govind Ram complainant PW 1 has stated in para 12 of his cross-examination that another grove of 100-125 bighas known as Hafiz Baag, adjoins towards west of the grove of Kallu Mian. According to the statement of para 10 of his cross-examination, a year before the incident, Devi Thekedar had taken a number of groves on lease, but be had joined 15-20 Sajhidars. The grove of Kallu Mian was one of the groves taken on lease by Devi Thekedar. The said grove was of 4-5 bighas only. He stated in para 12 of his cross-examination that in the night of the incident, he and 5 other Sajhidhars were sleeping in the said grove of Kallu Mian to keep watch of mango crop. According to him, they had put up a Madaiya in the said grove and all of them were sleeping on separate cots in a row (north-south) towards south of the said Madiya. Those six cots, beginning from the side of Madaiya, were occupied by Nem Chandra PW 6, Kalyan PW 3, Devi, Shafi Khan PW 2, Bankey deceased and him (Govind Ram PW 1) in that sequence. Those six cots, beginning from the side of Madaiya, were occupied by Nem Chandra PW 6, Kalyan PW 3, Devi, Shafi Khan PW 2, Bankey deceased and him (Govind Ram PW 1) in that sequence. Their heads were towards west and feet towards east. He has further stated in the Same para that 7-8 persons including Karan PW 7 Bhola Majeeda s/o Sukkha and son-in-law of Bhola were sleeping in the adjoining Hafiz Baag. According to him, a Madaiya was also fixed in Hafiz Baag, which was about 250-300 paces away from their Madiya in the grove of Kallu. Of course, the same sequence of cots is deposed to by Shafi Khan PW 2. but Kallu alias Kalyan PW 3 when questioned about the sequence of cots serial numbers 4, 5 and 6 he deposed that they were occupied by Bankey deceased, Shafi Khan PW 2 and Govind Ram PW 1. Obviously, this is in contradiction to the sequence given by the two earlier witnesses. Nem Chandra PW 6 has stated in his cross-examination that the Investigating Officer had seen those cots lying on the spot. The site plan shows five cots in all occupied from north (from side of Madaiya) to south by Govind Ram PW 1, Bankey deceased. Devi Shafi PW 2 and Kalyan PW 3 in that order. Apart from this order being discrepant with the order as given by Govind Ram PW 1 and Shafi Khan PW 2, it completely omits sixth cot side to be occupied by Nem Chandra PW 6. Learned counsel for the appellants has argued that this discrepancy regarding the number and sequence of occupation of these cots, would indicate that perhaps the above named eye witnesses were not there. As seen above, according to Govind Ram PW 1 certain persons including four named above, were sleep'ng in the adjoining Hafiz Baag and on hearing their alarm at the time of incident one of them namely Karan alone had arrived at the spot soon after the departure of the assailants. According to him, Karan, had a paper in his pocket and he had dictated the report to him. In his examination in chief he stated that Karan had come from the other grove to the spot (in the grove of Kallu Mian) and the report was dictated to him. According to him, Karan, had a paper in his pocket and he had dictated the report to him. In his examination in chief he stated that Karan had come from the other grove to the spot (in the grove of Kallu Mian) and the report was dictated to him. From this statement, it would follow that the report was dictated in the grove of Kallu Mian. As a matter of fact, Shah Khan PW 2 has stated in the end of his examination-in-chief that Govind Ram complainant PW 1 had dictated the report to Karan Pal PW 7, near the dead body, i. e. in the grove of Kallu Mian. However, we find that in the written report Ex Ka 9, Govind Ram complainant PW 1, the maker of the FIR mentioned therein that he had brought the said report after getting it scribed from Karan Lal in Hafiz Baag. Govind Ram PW 1 was confronted with this portion of the FIR, but he could not explain the discrepancy. The prosecution examined Karan Lal PW 7, the scribe of the FIR. He in his cross-examination made a Crude attempt to explain the above discrepancy by saying that he had paper and pen in his Madaiya (in Hafiz Baag) and he had brought the same from there. According to him, when both, he and Govind Ram complainant PW 1 were standing on the Mendh between two groves he had desired that the report be written so. the same was written by him, while sitting on that common Mendh He further stated that the said Mendh was only 20-25 paces from his Madaiya and only 5 paces away from the place where the dead body of Bankey Lal was He explained that since the FIR was written on that Mendh, so one could describe it either way that it was written in the grove of Kallu Mian or in Hafiz Baag. But, we are not impressed by this explanation. Govind Ram complainant PW 1 has stated that the distance between two Madaiyas is about 250-300 paces. Madaiya in Hafiz Baag is towards west of the Madaiya in the grove of Kallu Mian. A look at the sight plan does not show that the grove of Kallu Mian adjoins towards west with Hafiz Baag. In fact, towards west is shown mango crop of Waheed Khan 8. 'bighas'. Madaiya in Hafiz Baag is towards west of the Madaiya in the grove of Kallu Mian. A look at the sight plan does not show that the grove of Kallu Mian adjoins towards west with Hafiz Baag. In fact, towards west is shown mango crop of Waheed Khan 8. 'bighas'. It is true that the said site plan is not on scale, but there is no reason to doubt that it shows the place of cots vis-a-vis the eastern and western boundaries of the grove of Kallu Mian with some reasonable proportion. In the index cot ' A ' is shown to be about 30 paces away from the eastern Mendh of the said grove. A bare look shows that the western Mendh of the grove is situated at a distance at least three times, the distance between cot and the eastern Mendh of the grove. We calculate that distance roughly as about 100 paces from cot ' A ' on which corpse of Bankey was found by the 10. This gives a complete lie to the statement of Karan Lal PW 7 that he had scribed the FIR while sitting on the Mendh only 5 paces away from the dead body. We have mentioned above that Karan Lal PW 7 had made a crude attempt to explain the discrepancy, about the place where the FIR was dictated, appearing between the statement of the witnesses PW 1 and 2 and FIR. 11. It is also to be noted that according to Karan Lal PW 7 on hearing the alarm coming from the grove of Kallu Main he and Ram Kunwar had rushed to the spot. In his cross-examination he stated that Govind Ram complainant PW 1 had asked him to get the paper to write the report. He in turn, had asked Ram Kunwar to go to his Madaiya and bring the paper. The report was written by him after the paper was brought by Ram Kunwar. We have already seen above that according to Govind Ram PW 1 Ram Karan alone had come to the spot, soon after the occurrence, and he had paper in his own pocket and in was not obtained or brought from Madaiya of Karan Lai. 12. The report was written by him after the paper was brought by Ram Kunwar. We have already seen above that according to Govind Ram PW 1 Ram Karan alone had come to the spot, soon after the occurrence, and he had paper in his own pocket and in was not obtained or brought from Madaiya of Karan Lai. 12. According to the prosecution, the incident had taken place at about 1.30 in the night and the FIR was lodged at Police Station, three furlongs away within three hours at 4.30 a m. much before the day break. In the same strain, Govind Ram PW 1, the maker of the FIR and Karan Lal PW 7, the scribe of the FIR, said report was written in the night soon after the incident Govind Ram complainant PW 1 has stated that said report was written with an hour of the incident. Karan Lal PW 7 has stated that the said report was written in the light of lantern However, Kalyan PW 3 has stated in his cross examination that Karan Lal had written the report after sun rise He further stated that Govind Ram had proceeded to Police Station along with Shaft Khan PW 2 and one Lochan to lodge the report. According to him, the I. O. hi visited the spot twice-once earlier in the morning and then at about 10 a. m. He added that at the time of his first visit the I. O. had not written anything prepare any paper, but told them that he would not prepare a document till Mangali. father of the deceased, reached the spot According to him the I. O. had prepared the necessary documents only after 1 second visit at about 10-30 a. m. No doubt, the I. O. Chandra Pal Sin; PW 9 has stated that after the report was lodged at the Thana at 4.30 a. m. he interrogated Govind Ram complainant at the Thana, he left the Thana at about 5.35 a. m. and reached the spot at 6.00 a. m. and soon after prepared Panchyatnama to be followed by the preparation of other necessary documents connection with the investigation. But this aspect is negatived by Kalyan PW 3 as already seen above. But this aspect is negatived by Kalyan PW 3 as already seen above. From all the above circumstances, it is argued by the learned counsel for the appellants that the FIR does not seem to be lodged at the time purports to be and indications are that it was prepared perhaps some time of 10.30 a. m. and if it was so there can be no doubt that it had been ante-timed, We have on hesitation to say that the matter cannot be regarded free from doubt. Once this doubt is entertained, the FIR becomes clouded with suspicion that it was prepared after an appreciate delay and it was the product of undue deliberation and consultation. The FIR then loses its sanctity about disclosing untainted earliest version of the incident. In other words it loses corroborative value. 13. Learned counsel for the appellants has next challenged the veracity of alleged eye witnesses, regarding Govind Ram complainant PW 1 and Nem Chan PW 6, it is pointed out that the only reason given by Govind Ram PW 1 to present in the grove of Kallu Mian at the time of incident is that he wa Sajhidar in the lease of mango grove and had slept there with others to kee| watch over the mango crop. It is pointed out that Bankey deceased was real nephew who was a young man of 30. It is argued that if Bankey there to look after the mango crop, there was no necessity for Govind Ram PW 1 and for that matter Nem Chandra PW 6 aged 16 years, son of Ban deceased to be out in the grove during night to keep a watch over the mango crop. It is pointed out that Govind Ram PW 1 has stated in his cross- examination that the grove was taken on lease for two years and the incident had taken place in the second year of the lease. He, however, made it clear that he was Sajhidar in the said lease of grove for the first year only. If it was he had no direct concern with the lease of the grove in question in the year the incident. He, however, made it clear that he was Sajhidar in the said lease of grove for the first year only. If it was he had no direct concern with the lease of the grove in question in the year the incident. The probabilities, therefore, are that he would not be sleeping the grove of Kallu Mian alongwith Bankey deceased in the night of incident We have already discussed above, while dilating upon the question of motive that the earlier litigations were between Kanhai appellant or his father Narain with Govind Ram PW 1. We have also recorded finding that the appellant had no motive to murder Bankey rather Govind Ram PW 1 who had lost the cases, had emerged as a frustrated man. Nevertheless, if by any strech of imagination the said litigations could even remotely provide any motive to the appellants, it could be against Govind Ram PW 1 and not against Bankey deceased. In this background, if both Govind Ram PW 1 and Bankey deceased were present at the place of the occurrence and if Govind Ram had in the very beginning challenged the approaching appellants, then in all probabilities Govind Ram PW 1 would have been the target of the appellants. The very fact that he escaped unhurt is a strong pointer to the fact that perhaps he was not present on the spot. The place of occurrence as admitted by Govind Ram PW 1 in his cross-examination is about 1 mile away from his house. The argument advanced by the learned counsel for the appellants is that it was some time late after sun rise that Govind Ram complainant who is real uncle (Taau) of the deceased, came to know about Bankeys death and then things moved on and a report was lodged at the Thana, which was collusively ante-timed. At any rate, the above discussed argument does indicate that perhaps Govind Ram was not present on the spot and as such was not an eye witness of the occurrence. At any rate, his statement in the cross-examination that some times he used to sleep in one grove and some times in other grove makes him no better than a chance witness, if at all. He has also stated that he was not interrogated by the I. O. at the Thana. This contradicts the statement of the I. O. PW 9. He has also stated that he was not interrogated by the I. O. at the Thana. This contradicts the statement of the I. O. PW 9. It leaves the whole thing in a very doubtful state. 14. Govind Ram PW 1, Shafi Khan PW 2, Kalyan PW 3 and Nem Chandra PW 6 have, in broad terms deposed in their examinations-in-chief in line with the prosecution case and stated that they along with Devi and Bankey deceased were sleeping on separate cots towards south of their Madaiya in the open in the grove of Kallu Mian to keep watch of mango crop at about 1.30 in the night. The lantern was burning there hung by Balli of the Madaiya. They were awakened by the sound of rettling of leaves caused by approaching persons. They saw Kandhai appellant holding a Tamancha, Dharam Pal appellant holding a double barrel gun, Pooran appellant holding a lathi and one Man Singh holding a Tamancha standing near their cots. According to them, Kandhai and Dharam Pal appellants had fired one shot each from their respective weapons at Bankey deceased which found their marks and Bankey was hurt. They have also stated that Man Singh had also fired with his Tamancha. No doubt, this is in accordance with the out-lines of the prosecution case but there are certain discrepancies. According to the cross-examination Govind Ram complainant PW 1, Kandhai and Dharam Pal together had fired only four shots and all those four shots had hit Bankey deceased. He further stated that Man Singh had fired two shots from his Tamancha in the air. According to him. soon after the arrival of the assailants Man Singh had opened first fire in the air, shouting " Uthana Mat Nahi Maar Deynge ". He also stated in his cross-examination that out of fear none of them had ventured to get up. Shafi Khan PW 2 has stated that on arrival first two shots were fired by Man Singh in the air. It was followed by two fires one each by Kandhai and Dharam Pal appellants. This statement would show that Man Singh had not fired at Bankey. However, in his statement under section 161 CrPC he had stated that all three had fired one shot each at Bankey. This in the circumstances of the case, is not only a discrepancy but a material contradiction. This statement would show that Man Singh had not fired at Bankey. However, in his statement under section 161 CrPC he had stated that all three had fired one shot each at Bankey. This in the circumstances of the case, is not only a discrepancy but a material contradiction. To a cross question the witness stated that Bankey had received four fire shots. This is against the medical evidence on record, which shows that there was only three gun shot wounds of entry and not four. According to Kalyan PW 3 Bankey was fired at by Kandhai and Dharam Pal appellants with their respective weapons, one each and the third fire was shot in the air by Man Singh. He did not speak of 4th fire in his examination-in-chief. Of course he referred to fourth fire shot by Man Singh in his cross examination but could not say if it was aimed at Bankey. However, in his statement under section 161 CrPC he had stated that the three appellants had fired one shot each at Bankey. In the circumstance of the case, this discrepancy amounts to material contradictions. As regards Nem Chandra PW 6, we have already discussed above that he being a young boy of 16 years was perhaps not needed to sleep with his father Bankey deceased in the grove As a matter of fact the I. O. in the site plan has not shown any cot occupied by Nem Chandra at the time of incident. According to him, the first two shots were fired at Bankey by Kandhai and Dharam Pal followed by one shot in the air by Man Singh. The fourth shot was also fired by Man Singh (perhaps in the air) in the process of retreating. According to him. Man Singh had not fired at Bankey deceased. 15. The above statements of the above four witnesses are at variance in the matter of total shots fired at the spot, the number of shots fired by each appellant, number of shots hitting Bankey deceased and whose shot had hit Bankey deceased. At any rate, the details about these shots as given by Govind Ram complainant PW 1 in his statement does not find full expression in the FIR lodged by him. At any rate, the details about these shots as given by Govind Ram complainant PW 1 in his statement does not find full expression in the FIR lodged by him. The learned counsel fop the appellants has, therefore argued that in such state of affairs no reliance should be placed on the testimony of these eye witnesses. We find force in this argument. 16. After having discussed above, the number of shots fired at Bankey deceased as deposed by different witnesses, we find that the ocular evidence is at variance with the medical evidence on record. The post mortem examination report records only three wounds of gun shot entry besides one abrasion on the right side back and one contusion 3 cm x 3 cm on right side forehead 1 cm above right eye brow. The ocular evidence does not explain the said abrasion and contusion. An effort was made by learned DGA on behalf of the prosecution to explain away these injuries. It was pointed out that Kalyan PW 3 has stated that Bankey was lying on a bare cot. It is argued that when he met an unnatural death as a result of fire arm shot injuries, it was but natural that his body had undergone concussions and it was not improbable to have abrasion in question on his back in the process Dr. S. P. Goel PW 10 has confirmed in his cross-examination that the said abrasion could be caused that way. We can well appreciate and understand this. As regards the contusion on the forehead the learned DGA has pointed out that Shafi Khan PW 2 has stated in his cross-examination that Bankey was hit with fire shots when he was trying to get up and sit on the cot. It is pointed out that Shafi Khan PW 2 further stated that Bankey lay dead across the cot with his head hanging towards south and legs hanging towards north. It is argued that it is quite probable that in the process Bankey would have hit his forehead with the top of the leg of the cot and sustained the contusion in question on his forehead. But we do not feel satisfied with this explanation. It is argued that it is quite probable that in the process Bankey would have hit his forehead with the top of the leg of the cot and sustained the contusion in question on his forehead. But we do not feel satisfied with this explanation. This is so because Panchayatnama which is supposed to indicate in what particular condition the dead body was found by the I. O, merely shows that the dead body of Bankey was lying fiat (Chit Padi Mili) on the cot. It was not mentioned in it by the I. O. that it was found lying across the cot in the manner as deposed by Shafi Khan PW 2. Nothing of the sort was illicited from the I. O. PW 9 either. Govind Ram complainant PW 1 has stated in his cross-examination that Bankey was fired upon while he was lying on the cot. Similarly Kalyan PW 3 stated in his cross examination that when Bankey was fired upon he was lying on a cot. These statements exclude the possibility of Bankey deceased making any effort to get up and sit on the cot as deposed by Shafi Khan PW 2. This injury, therefore, also stands unexplained. We, therefore, find that the prosecution have failed to satisfactorily explain the contusion appearing on the forehead of Bankey deceased. Since the eye witness account is at variance with the medical evidence the eye witnesses can not be believed. As a result of the above discussion we have no hesitation to say that the prosecution have failed to prove their case beyond all reasonable doubts. The qenefit of this doubt must go to the appellants. The appeal is, therefore, allowed. The conviction and sentence awarded to each one of the appellants are set aside. They are acquitted of the charges levelled against them. They are on bail they need not surrender to their bad bonds which are cancelled. Their sureties are discharged. Appeal allowed.