Judgment K.N. Misra, J. 1. THIS appeal is directed against the judgment and order dated 27-5-81 passed by Sessions Judge, Sitapur convicting accused-appellant Bisram son of Baldeo and awarding a sentence of imprisonment for life under section 302, IPC. The appellant No. 2, Ghurai son of Dorey has also been convicted and sentenced to imprisonment for life under section 302/34 IPC. 2. BRIEFLY stated, the prosecution case is that Bisram accused wanted to sell some land of which Smt. Moola was also co-tenure holder. She did not agree to it till the formal partition was done. Since Smt. Moola did not agree to sale being done without formal partition of the joint land and so Bisram could not sell the land. Smt. Moola also filed a suit for partition on 4-2-1980; a copy of the plaint is Exhibit Kha-12. Due to all this, Bisram bore ill-will against Smt. Moola. This joint chak land of Bisram and Smt. Moola is said to be situate towards west of village Tikra at a distance of about four furlongs. To the north of this chak lies the field of one Sridevi and to its north is the canal. There is a Mend dividing the joint chak and on the eastern side of the Mend lies the field of Bisram and on the western side of it is the field of Smt. Moola. It appears that the chak was mutually partitioned in the said manner. The prosecution case is that on the fateful day in the noon Smt. Moola was grazing her goats at her field. She was sitting on the Mend. Bahoran (PW 2) was also present at that time in the chak of Smt. Moola and was grazing his cattle, both the accused persons, Bisram and Ghurai came there. Informant Parwan (PW 1) is also said to have gone to see his field situate nearby. At about noon time, Smt. Moola cried for help shouting that Bisram and Ghaurai, accused, were killing her. On hearing the cries, informant as well as Sheo Raj son of Munna Arakh, Bahoran son of Ghassu Garadia, Ishawari son of Jiyan Teli, Parshan son of Pohan Arakh and several other persons of the village ran for help and reached the spot. There they saw that accused Ghaurai was holding both the legs of Smt. Moola and Bisram accused was giving Gandasa blows on her neck. There they saw that accused Ghaurai was holding both the legs of Smt. Moola and Bisram accused was giving Gandasa blows on her neck. By the time these accused persons reached there, the accused persons escaped with the Gandasa. The Head of Smt. Moola was severed and she was dead. Some other persons of the village also reached there. The witnesses tried to catch-hold the accused persons, but they filed away from the scene of occurrence with the Gandasa towards north. 3. INFORMANT Parwan lodged a report at police station Mishirikh the same day, i. e. 25-9-1980, at 4 P. M. Head-constable Suresh Singh wrote the report, Ext. Ka-1, which was thumb-impressioned by Parwan (PW 1). He registered the crime in G. D. vide Ext. Ka-2. Investigation was entrusted to Sn Ganesh Singh (PW 3) and he is said to have interrogated Parwan at the police station. He reached the spot alongwith the complainant and found the dead body of Smt. Moola, her severed head lying at some distance. He conducted the inquest proceedings and prepared inquest-report Exhibit Ka-3. The dead-body was sealed and sent for post-mortem examination through Constable Ram Manohar Dubey, Ayodhya Prasad and village Chaukidar along with necessary papers. He took samples of blood stained and simple earth, which are material Exhibits 1 and 2. The memo prepared is Exhibit No. Ka-/. The Investigating Officer also prepared site-plan Exhibit Ka-8. He searched for the accused, but could not find them. The other witnesses were interrogated by him. 4. POST-mortem was conducted by Dr. L. P. Shukla, Medical Officer, District Hospital, Sitapur on 26-9-1980 at 3.00 P. M. Dr. L. P. Shukla was not examined in the case, but genuineness of the post-mortem report was admitted by the learned counsel for the accused persons. It was exhibited as Exhibit Ka-11 according to it the probable time of death was about one day. On external examination it was found that the body was of an aged female of average built, head severed from the trunk completely. Rigor mortis has passed from the upper and was passing from the lower extremities. The right eye was open and left closed and the mouth was closed. Abdomen distended, greenish discolouration present in both the iliac fossa. The following antemortem injuries were found on the dead body :- 1. Rigor mortis has passed from the upper and was passing from the lower extremities. The right eye was open and left closed and the mouth was closed. Abdomen distended, greenish discolouration present in both the iliac fossa. The following antemortem injuries were found on the dead body :- 1. Incised wound 15 cms x 14 cms through and through the neck at the level of 2nd cervical vertebra cut through and through, lobe of the left ear cut through and through, both sides carotid vessels, all muscles, all ligaments and other structures in the neck region cut through and through, left side mastoid bone cut. Head and neck severed from the trunk in four strokes. Neck circumference 15 cms. x 14 cm with half lobe of the ear attached with skin of neck. 2. Incised wound 4 cms x 1/2 bone deep on the dorsal aspect of the proximal phalanx of the index finger of left hand. On internal examination the doctor found the second cervical vertebra cut through and through, spinal cord cut at the level of second cervical vertebra, both carotid vessels cut through and through larynx treachea cut at the level as discribed above, oesophagus cut at the same level as described above. The stomach contained about four ounces of pulpy material and both the small and large intestines were full including the rectum. It was opined that the death was caused due to shock and haemorrhage as a result of antermortem injuries. 5. THE accused persons surrendered and the investigating officer interrogated them and after completion of the investigation submitted charge-sheet Exhibit Ka-9 against the accused persons on 11-11-1980. THE accused persons were committed to the Court of Session on 16-1-1981. They were charged for the offence mentioned above, but they pleaded not guilty to the charges and claimed to be tried. 6. IN his statement accused Bisram stated that Bechey had a wife Moola. He had also brought Smt. Ram Dulari and was keeping her. A suit for partition was got filed by Parwan (PW 1). He bore no enmity with Smt. Moola. No land was recorded in the name of Smt. Ram Dulari. Parwan wanted that land to come in the name of Smt. Ram Dulari and so he got him implicated falsely in the case that he may get possession over the land. A suit for partition was got filed by Parwan (PW 1). He bore no enmity with Smt. Moola. No land was recorded in the name of Smt. Ram Dulari. Parwan wanted that land to come in the name of Smt. Ram Dulari and so he got him implicated falsely in the case that he may get possession over the land. Ghaurai accused also stated that Smt. Moola was wife of Bechey. He had brought Smt. Ram Dulari subsequently. He stated that there was a litigation with his uncle Pooran and Parwan and on account of it he bore enmity. Parwan's two brothers were sent to jail in that case. Parwan and Sheoraj had beaten his cousin brother and in that case he was witness against Parwan. There was also a case fought under section 107/116 Cr. P.C. between his cousin brother Chet Ram and Parwan. He has been falsely implicated in the case due to enmity. In support of its case, the prosecution examined three witnesses, PW 1 Parwan, PW 2 Bahoran and PW 3 Ganesh Singh. Investigating Officer Constable Ram Manohar Dubey had filed his affidavit on 30-4-1981. The prosecution also filed the above referred documents which were exhibited. In defence the accused persons examined Chotey Lal as DW 1 and Sita Ram as DW 2. 7. THE learned Sessions Judge after taking into consideration the evidence on record found that the prosecution has been able to prove its case beyond reasonable doubt. THE incident had taken place in the manner alleged by the prosecution witnesses Parwan and Bahoran. He found accused Bisram to be guilty of committing murder of Smt. Moola by chopping off her head with Gandasa. He was, thus, convicted under section 302 IPC, and sentenced to undergo imprisonment for life. It was further held that accused Ghurai had actively participated in the crime as he had held the legs of Smt. Moola while Bisram chopped off her head giving Gandasa blows. Ghurai accused was, thus, also held to be guilty of an offence under section 302 read with section 34 IPC and was sentenced to imprisonment for life. THE accused appellants have preferred this appeal against their conviction. 8. LEARNED counsel for the accused appellants urged that the prosecution is tainted and the testimony of the two alleged eye-witnesses examined by the prosecution cannot be relied upon. THE accused appellants have preferred this appeal against their conviction. 8. LEARNED counsel for the accused appellants urged that the prosecution is tainted and the testimony of the two alleged eye-witnesses examined by the prosecution cannot be relied upon. It was urged that these witnesses, apart from being inimical to the accused-appellants, have falsely deposed that they were present at the time of occurrence and witnessed the accused-appellants committing the crime. Their testimony about their presence at the scene of occurrence cannot be accepted. LEARNED counsel had pointed out that PW 1 Parwan, who is said to have lodged the FIR at police station Mishrikh, has admitted in his statement recorded on 2-4-1981 in the mutation case filed by Smt. Ram Dulari in respect of the agricultural land belonging to deceased Smt. Moola that he had not lodged any report about the murder of Smt. Moola, but it was lodged by the Chaukidar and the Sub-Inspector had made him the complainant. LEARNED counsel pointed out that PW 1 Parwan in his statement has admitted to have appeared as a witness on behalf of Smt. Ram Dulari in the said mutation case. Referring to Exhibit Kha-1, which is certified copy of the statement of Parwan, learned counsel urged that although Parwan in his statement has denied to have made the aforesaid statement, but his testimony cannot be believed. It was urged that in view of the aforesaid statement contained in Exhibit Kha-1 it becomes quite clear that Parwan had not lodged the FIR though it purports to have been written by the Head-Constable on the alleged verbal statement of Parwan. LEARNED counsel, thus, vehemently contended that since in the present case the FIR in question cannot be said to have been lodged by Parwan, and, as such, the entire prosecution case would collapse as the FIR was fabricated and no reliance can be placed on the testimony of the witnesses referred therein. LEARNED counsel, thus, vehemently contended that since in the present case the FIR in question cannot be said to have been lodged by Parwan, and, as such, the entire prosecution case would collapse as the FIR was fabricated and no reliance can be placed on the testimony of the witnesses referred therein. LEARNED counsel for the accused-appellants had also urged that there was no motive for the accused-persons to have committed the crime, and they have been falsely implicated at the instance of Parwan, who somehow wanted to grab the property of Smt. Moola in connivance with Smt. Ram Dulari, who is said to be the second wife of Bechey, but her name was not recorded after his death and the name of Smt. Moola alone was mutated in place of deceased Bechey, who was co-tenure holder along with Bisram (accused). It was urged by the learned counsel that since after death of Bechey name of Smt. Moola was mutated and so there could be a cause of grievance to Smt. Ram Dulari, who is said to be the second wife of Bechey. It was pointed out that there was no dispute between accused Bisram and Smt. Moola with regard to the plot in question as they were in separate possession over the land of their share by mutual partition, which was done in the life time of Bechey. LEARNED counsel further pointed out that the story regarding the alleged proposed sale by Bisram of his land to Chotey Lal Pasi is absolutely wrong. Chotey Lal Pasi has been examined in this case as DW 1 and he has deposed that he had never negotiated about the purchase of any land from Bisram. It was pointed out that nothing has come in the testimony of this witness to dis-believe him. Apart from it, it was also pointed out that if Bisram (accused) wanted to sell his land, there could be no legal impediment in his way because there was already private partition between him and Smt. Moola and they were in exclusive possession over the land of their share, which fact has also been admitted by PW 1, Parwan. There could, thus, be no cause of annoyance to Bisram on the alleged ground that Smt. Moola had not agreed to the selling of land by Bisram. There could, thus, be no cause of annoyance to Bisram on the alleged ground that Smt. Moola had not agreed to the selling of land by Bisram. LEARNED counsel also referred to various contradictions and in-consistencies in the deposition of the two eye witnesses examined by the prosecution which will be referred hereinafter. It was urged that the prosecution has miserably failed to prove beyond reasonable doubt that the accused persons had committed the murder of Smt. Moola, and they thus deserve to be acquitted. In reply learned Government Counsel urged that the learned Sessions Judge has reached to correct conclusion that the evidence on record establishes beyond reasonable doubt that the accused persons have committed the crime in the manner alleged by the prosecution. He vehemently urged that the accused Bisram had motive to commit the crime as he could not sell the land on account of refusal by Smt. Moola to accord her consent to the transfer to be made by Bisram in respect of joint land until partition was effected. Learned counsel further pointed that in fact Smt Moola has also filed a suit for partition and during pendency of the case she was done to death by the accused persons so as to grab her land. There was thus, strong motive for the accused persons to commit the crime and they cannot be said to have been falsely implicated by PW 1 Parwan, who has lodged the FIR giving true facts of the crime committed by the accused persons in the manner indicated in the FIR. PW 2 Baharan had also witnessed the crime and is named in the FIR as an eye-witness. The presence of these two prosecution witnesses cannot be doubted and their testimony cannot be disbelieved on the alleged ground of enmity as alleged by the learned counsel for the accused-appellants. 9. WE have carefully considered the arguments advanced by the learned counsel and have perused the record very carefully. The first question which requires consideration is whether the FIR cannot be said to have been lodged by the informant Parwan as was asserted by the learned counsel for the accused persons. The FIR in question is said to have been recorded on 25th September, 9.0 at 16 hours by the Head-constable Suresh Singh on the oral statement of the informant Parwan son of Pritam PW 1. The FIR in question is said to have been recorded on 25th September, 9.0 at 16 hours by the Head-constable Suresh Singh on the oral statement of the informant Parwan son of Pritam PW 1. It bears thumb impression of Parwan PW 1. Parwan deposed that he had lodged the FIR Exhibit Ka-1. This witness in his cross examination has admitted that he and Sheo Raj had given evidence in the mutation case filed by Smt. Ram Dulari in respect of land of Smt. Moola, deceased. A certified copy of this statement is on record and has been exhibited as Exhibit Kha-1. Since Parwan had admitted to have given evidence in the said mutation case, and, as such it cannot be doubted that Exhibit Kha-1 relates to the deposition of Parwan. It is not the case of the prosecution that there is some other person in the village Tikra known as Parwan son of Pritam. Thus, the genuineness of this document to be the statement of PW 1 Parwan recorded in the said mutation case cannot be doubted. In the statement contained in Exhibit Kha-1 Parwan had deposed that "Moola ke katal ki report mane nahin likhai. Chaukidar ne likhaya. Darogaji ne muddai tumko bana diya. Report me jo likha gaya tha wah darogaji ne humko par kar sunaya tha. Yah bat report me galat likhi thi ki Beche Lai ko mare 1-1/2 warsh hoe. Yah bat sahi hai ke Bechey Lal motar se dab kar mare. Bechey lal ke doosri aurat ke ek Iadka hai. Yah bat report main galat likhi thi". In the aforesaid statement Parwan has clearly admitted that he lad not lodged the report regarding murder of Smt. Moola and the Chaukidar had got it recorded. The Sub- Inspector had made him the complainant. Although this witness has decided to have made the aforesaid statement in the mutation case, but we are unable to accept his testimony on that point. The FIR in question purports to have been scribed by the head-constable on the oral statement of Parwan, but if that be correct, then this witness could not have slated that in the FIR. It has been wrongly recorded that Bechey died about one and a half years ago and that he had left a son born to his second wife. It has been wrongly recorded that Bechey died about one and a half years ago and that he had left a son born to his second wife. The aforesaid statement of Parwan recorded in the mutation case certainly creates much doubt about the recording of the FIR on the oral statement of Parwan. He appears to have been made the complainant by the Sub-Inspector as has been stated by him in his deposition contained in Exhibit Kha-1. WE, therefore, cannot take this FIR to have been scribed on the oral statement of the informant Parwan. It is well settled that if the FIR cannot be treated to be one got recorded by the informant, though it may purport to be so, no reliance can be placed on it and the prosecution case would stand shattered because of the possibility of the facts stated therein to be tainted and fabricated. In Marudanal Augusti v. State of Kerela, AIR 1980 SC 638 the Hon'ble Supreme Court, after having considered the circumstances in which the FlR was lodged which created doubts about it, has observed that 'the High Court seems to have overlooked the fact that the entire fabric of the prosecution case would collapse if the FIR is held to be fabricated or brought into existence long after the occurrence and any number of witness could be added without there being anything to check the authenticity of their evidence, 10. IN the present case there appears to be no inordinate delay in lodging the FIR, but that will have no material bearing because the authorship of the FIR is highly doubtful in view of the statement of Parwan recorded in the mutation case referred to above. Although in his statement contained in Exhibit Kha-1, Parwan has deposed that the FIR was read over to him by the sub-inspector who had made him the complainant in the case, but that would not make the FIR to have been got written by him nor it can be said to contain verbatim narration of facts about the incident as was orally stated by him to the head-constable who had scribed the report. The said facts and circumstances regarding lodging of the FIR cannot be overlooked, which create grave doubts about it. The said facts and circumstances regarding lodging of the FIR cannot be overlooked, which create grave doubts about it. The putting of thumb mark by Parwan on being read over to him by the sub-inspector, who had made Parwan the complainant in the case, would not, in our opinion, cure the inherent infirmity of being got recorded by the Chaukidar and not by Parwan as was stated by Parwan himself in his deposition contained in Exhibit Kha-1. We are, therefore, unable to place any reliance on this FIR and the prosecution case, as set out in the FIR has to be looked with great care and caution. It was next urged by the learned counsel for the accused-appellant that there was absolutely on motive to prompt the accused persons to commit murder of Moola. According to the prosecution Bisram had a motive to commit the crime as Smt. Moola had not agreed to his disposing of the land which jointly belonged to accused Bisram and Smt. Moola. We have carefully considered the statement of PW 1 Parwan who deposed that after death of Baldeo 10 or 12 years ago, the land had devolved on his two sons Bechey and Bisram in equal shares and there was no dispute between them. The joint land was mutually partitioned and they were in possession over the land of their respective half shares. After death of Bechey name of Smt. Moola was mutated and Bisram and Smt. Moola continued to remain in possession over their already mutually partitioned land. This witness has deposed that Bisram wanted to sell some portion of the land which was in his possession to one Chotey Lal Pasi but Smt. Moola did not agree to it until partition was done and this annoyed Bisram and on account of this ill-will he is said to have Committed murder of Smt. Moola. This alleged motive for committing the crime by Bisram is hardly acceptable in view of the fact that Bisram and Smt. Moola were in exclusive possession over their mutually partitioned share in the joint land. This land was mutually partitioned between the two brothers Bechey and Bisram who were in exclusive possession over their respective shares and there was no dispute about the possession or title amongst them. This land was mutually partitioned between the two brothers Bechey and Bisram who were in exclusive possession over their respective shares and there was no dispute about the possession or title amongst them. After death of Bachey, name of Smt. Moola was recorded and it has been admitted by this witness Parwan that both of them were in exclusive possession over the land of their shares which was mutually partitioned. There was, thus, no dispute about the title between them. PW 1 Parwan has further admitted that Bisram wanted to sell the land which was in his exclusive possession to Chotey Lal Pasi. There was, thus, no legal impediment in his way to execute the sale deed in respect of his aforesaid share in the land in question. A recorded co-tenant can sell land of his share or portion thereof which is jointly recorded in his name along with other persons as co-tenure holders. Sale deed by a co-tenure holder in respect of his share could be executed even without formal partition made through court of law. Thus, if Bisram wanted to sell land to Chotey Lal Pasi, he could very well transfer the land or portion thereof which was in his exclusive possession by virtue of mutual partition. We are, therefore, not impressed by the argument of the learned counsel for the State that since Bisram could not sell land without consent of Smt. Moola which she had refused to accord, and, as such, he had felt annoyed and on account of that ill-will he committed murder of Smt. Moola so that he may be able to transfer the land. Learned Government Advocate by referring to the copy of the plaint of suit for partition filed by Smt. Moola had urged that since Smt. Moola did not like the land being transferred by Bisram without formal partition, and, as such, she had filed the partition suit. His further contention was that since the partition suit was filed, and, as such, the statement of PW 1 Parwan deserves to be accepted that Smt. Moola had refused to give consent to the transfer of land to be made by accused Bisram until partition was affected and for that reason she had filed a suit for partition. We have perused the copy of the plaint very carefully. We have perused the copy of the plaint very carefully. This suit was filed on 4-2-1980 and in para 3 it has been very clearly averred that the plaintiff (Smt. Moola) and the defendant no. 1 (accused Bisram) are in exclusive possession over the land of their respective shares as per private partition. The cause of action as averred in the plaint is that since some difficulty is caused in payment of rent etc. and so there arose the necessity for filing the suit. Nowhere in the plaint it has been averred that defendant no. 1 Bisram is trying to sell the land to Chotey Lal Pasi or to some other person. Chotey Lal has also been examined in this case as DW 1 and he has deposed that there was no talk with Bisram regarding purchase of land. Nothing has come in the cross examination to discredit the testimony of this defence witness. We are, therefore, not inclined to accept the prosecution case that since Bisram wanted to sell the land to Chotey Lal, but Smt. Moola had refused to give her consent to the transfer, and, as such, be had felt annoyed with her and on account of this ill-will he had committed murder of Smt. Moola. There could hardly be any motive to commit murder of Smt. Moola on the facts as alleged by the prosecution, which, in our opinion, are also not established. 11. LEARNED counsel for the accused-appellants had urged that Smt. Ram Dulari could have some motive to commit murder of Smt. Moola and not the accused Bisram who had admittedly no dispute regarding title or possession over the land of their respective shares. LEARNED counsel urged that according to prosecution Smt. Ram Dulari was second wife of Bechey. But after his death name of Smt. Moola alone was mutated. She was apparently not inclined to give any share to Smt. Ram Dulari which is evident from the fact that she bad filed a suit for partition without impleading Smt. Ram Dulari. This, therefore could give cause of annoyance to Smt. Ram Dulari and on account of that ill-will she might have got Smt. Moola murdered in order to remove her from her way. This, therefore could give cause of annoyance to Smt. Ram Dulari and on account of that ill-will she might have got Smt. Moola murdered in order to remove her from her way. He pointed out that after the murder of Smt. Moola an application for mutation was filed by Smt. Ram Dulari in which PW 1 Parwan had appeared as witness to depose in her favour that being second wife of Bechey, the land had devolved on her and so her name be mutated. LEARNED counsel further urged that the accused persons were falsely got implicated by Parwan PW 1 with the assistance of police sub-inspector in order to save his skin. The prosecution witnesses are also inimical and their testimony is tainted and the case has been fabricated against the accused persons. 12. TO us it does not appear to be at all necessary to record a finding on the question as to who else could have the motive to commit the crime, but what we have to see is as to whether the accused persons had any motive to commit the crime as alleged by the prosecution. Learned Sessions Judge has observed that it is very likely that the accused Bisram might have felt annoyed on account of filing of suit for partition by Smt. Moola, particularly when she was the widow of male co-tenant. We fail to find any force in this reasoning especially when there had been mutual partition and both of them were in exclusive possession over the land of their share without any dispute about possession or title in respect of land in question. In these circumstances one can hardly accept that there could be any cause of annoyance on account of filing of partition suit. Learned Sessions Judge, while further dialating on the question of motive has further observed that Bisram appears to be a person who was to be most benefitted by the murder of Smt. Moola and, therefore, may be interested in getting rid of her. Learned Sessions Judge, while further dialating on the question of motive has further observed that Bisram appears to be a person who was to be most benefitted by the murder of Smt. Moola and, therefore, may be interested in getting rid of her. We are also not impressed by this reasoning especially when the prosecution has not set up any such case of motive and on [ the contrary in the FIR it has been stated that Smt. Ram Dulari is the second wife of Bechey Lal and PW 1 Parwan has also deposed that Smt. Ram Dulari, after the murder of Smt. Moola, had applied for mutation in which he and Sheo Ram have given evidence in her favour. The mutation case would be decided on its own merit and we need not express any opinion about it. It is, however, pointed out that the accused Bisram is -contesting the mutation case filed by Smt. Ram Dulari. That may be so, but the fact remains that in the present case we find that this case has not been set up by the prosecution that accused Bisram was motivated to kill Smt. Moola so that he shall get her property as has been conjuctured by the learned Sessions Judge. Such a motive cannot be attributed to accused Bisram who after death of Bechey, which occurred some long time back, had never challenged title of Smt. Moola nor he had made any attempt to disturb her possession over the land of her share. Learned counsel for the accused-appellants had urged that Smt. Ram Dulari, who claimed to be second wife of Bechey Lal could have some cause of grievance against smt. Moola whose name alone was mutated and, therefore, she could have some motive to remove Smt. Moola trom the scene so that she may claim the property being second wife of Bechey Lal. Such a motive may or may not be attributed to Smt. Ram Dulari or to her supporters, but as already observed above we are of the opinion that the accused persons had hardly any motive to commit murder of Smt. Moola. However, the absence of motive to commit the crime would alone not be the decisive factor and would not merit acquittal if the evidence on record establishes that the accused person have in fact committed the offence. However, the absence of motive to commit the crime would alone not be the decisive factor and would not merit acquittal if the evidence on record establishes that the accused person have in fact committed the offence. But the absence of motive cannot be lost of completely and in such a circumstance the prosecution evidence regarding involvement of the accused persons in the crime has got to be looked and scrutinized with great care and caution. 13. THE prosecution has examined only two eye-witnesses. PW 1 Parwan is said to have lodged the FIR about the incident, but as already observed above, the FIR Exhibit Ka-1 cannot be taken to have been recorded on his oral statement and therefore, what has been stated therein cannot be taken to be the account given by the alleged eye-witness Parwan. Thus, the FIR would not be of any assistance to the prosecution in this case. Since the FIR is of no worth, and, as such, the prosecution case stands hopelessly shattered because there remains nothing to disclose and corroborate the prosecution case initially set out. 14. IN the FIR five persons have been named, besides many others, who are said to have reached the place of occurrence on hearing the cry of Smt. Moola for help when allegedly she was attacked by the accused persons, but out ot them only two witnesses PW 1 Parwan and PW 2 Banoran have been examined. These persons are said to be related to each other. Although PW 2 Banoran has showed his ignorance to the fact whether the sister ol his grand fattier Mathura is married to PW 1 Parwan or that his cousin sister is married to Sheo Ram, the brother of Parwan, but DW 2 Sita Ram, who is real brother of PW 1 Parwan has deposed about this relationship. He has also deposed that cousin sister of witness Bahoran is married to him. There appears no reason to reject the testimony of DW 2 Sita Ram about the said relationship, which the aforesaid two witnesses in their statements have tried to conceal. Both these witnesses are said to be inimical to the accused persons. PW 1 Parwan has admitted that proceedings under Section 107 Cr. P.C. were drawn between him and Chet Ram and others but he denied Chet Ram to be cousin brother of accused Ghurai. Both these witnesses are said to be inimical to the accused persons. PW 1 Parwan has admitted that proceedings under Section 107 Cr. P.C. were drawn between him and Chet Ram and others but he denied Chet Ram to be cousin brother of accused Ghurai. This relationship is, however, established by the deposition of DW 2 Sita Ram. It has been admitted by PW 1 Parwan that several cases were fought out between him and Chet Ram and there had also been a case under Section 107 Cr. P.C. fought out between Bahoran's grand father Sheo Ram and Chet Ram. This all goes to indicate that these two prosecution witnesses are inter se related to each other and they were also inimical to the accused persons on account of previous litigations. They cannot, therefore, be said to be independent witnesses having no reason to falsely depose and implicate the accused persons. The place of occurrence is not disputed, but its distance from the village has been deposed by PW 1 to be about 4 or 5 fields away lrom the village. This witness deposed that when he had heard alarm, he was on the canal patri towards noth-east from the place of occurrence. The distance of canal from the village has been . deposed by PW 2 Bahoran to be 4 or 5 paces. PW 1 Parwan has deposed to have witnessed the occurrence from the canal 'patri'. The site plan prepared by investigating officer indicates that village Tikra is located at a distance of four furlongs from the place of occurrence and the canal runs near the village. Parwan in his statement has attempted to give location of the place of occurrence at a shortend distance from the village and stated that its distance from the village is about 4 or 5 fields. This, however, stands belied by the site-plan. The canal from the place of occurrence also appears to be located at some distance although extent of the distance has not been noted in the site-plan, which was quite necessary because PW 1 Parwan is said to have witnessed the occurrence from point No. 9 on the canal patri shown in the site-plan towards north from the place of occurrence. In the site-plan the other witness Bahoran is said to be grazing his cattle at point No, 10 at a distance of 30 paces towards west from the place of occurrence and in between it barren field of Smt. Moola has been shown. The sub-inspector Ganesh Singh has stated that on the spot no crop was standing and the fields were lying barren. This is contradicted by PW 2 Bahoran who deposed that he was grazing his cattle in the field of Smt. Moola at a distance of 10 paces from her and in her field over an area of 4 or 5 biswas unharvested 'Urad' crop was standing and from the rest of area, the crop was harvested. He had further deposed that he had not told the sub-inspector the place where he was grazing his cattle. It is relevant to notice that in the site plan Bahoran is shown to be grazing at point No. 10 towards west of the place of occurrence, but fields located in between these two points have not been shown in the site plan. PW 1 Parwan has deposed that towards west of the place of occurrence field of Nanhey Chamar is located in which at that time sugar-cane and maize crop was standing which was about man's height. It all goes to indicate that if PW 2 Bahoran was grazing his cattle towards west of the place of the incident at a distance of 30 paces, he could not witness the occurrence as crop of man's height was standing towards west where Smt. Moola was killed. In his statement Bahoran has deposed that it was noon time and he was grazing his cattle only at a distance of 10 paces in the field of Smt. Moola where she was also grazing her goats. Since unharvested 'Urad' crop was still standing over an area of 4 or 5 Biswas, it appears highly improbable that she will take her goats for grazing in her field or permit Bahoran to graze his cattle in the field because the cattle would aptly cause damage to the standing crop. We, therefore, find it difficult to accept that at the time of occurrence Smt. Moola was grazing her goats in the field and Bahoran was also grazing his cattle there at a distance of 10 paces from her. We, therefore, find it difficult to accept that at the time of occurrence Smt. Moola was grazing her goats in the field and Bahoran was also grazing his cattle there at a distance of 10 paces from her. The presence of Bahoran is highly doubtful and cannot be accepted. He is relation of PW 1 Parwan and also appears to be inimical to accused persons. No reliance, therefore, can be placed on his testimony. 15. LEARNED counsel for the accused-appellants had cited decision of the Hon'ble Supreme Court in Ram Singh v. State of U. P., 1976 SCC (Crl.) 630 (para 6) wherein it has been observed by the Hon'ble Supreme Court that :- " .........The High Court thought that Jait Singh's presence at the time of the incident was doubtful and excluded his testimony from consideration. If Jait Singh was not a truthful witness, we do not see how Ram Rikh PW 6 and the other two eye-witnesses examined. Mahabir PW 1 and Satyapal PW 2 could be relied on, because they have also said that Jait Singh was present at the place of occurrence. " 16. REFERRING to the above decision learned -counsel had urged that since presence of Bahoran PW 2 at the place of occurrence is highly improbable and cannot be accepted and so the testimony of other witness Parwan, PW 1, who deposed that Bahoran was present at the place of occurrence and that both of them had witnessed the occurrence cannot be. accepted. In other words, his contention was that where a witness states that he and other person, both of them, were present at a place of occurrence and had witnessed the incident, but the Court comes to a conclusion that he was in fact not present at the place of occurrence, then no reliance can be placed also on the other witness as well if he deposes about the presence of the witness whose testimony has not been accepted regarding his presence at the place of occurrence. There appears much force in the contention. In his statement PW 1 Parwan has deposed that Bahoran was present at the place of occurrence, whose testimony for reasons already indicated above is not acceptable. Parwan has deposed to have seen the incident from the canal patri which appears to be at a great distance from the scene of occurrence. There appears much force in the contention. In his statement PW 1 Parwan has deposed that Bahoran was present at the place of occurrence, whose testimony for reasons already indicated above is not acceptable. Parwan has deposed to have seen the incident from the canal patri which appears to be at a great distance from the scene of occurrence. Apart from it, this witness is also inimical to the accused persons and has admittedly supported Smt. Ram Dulari, the alleged second wife of Bechey Lal, who could have some cause of grievance against Smt. Moola because of the mutation of her name alone in the revenue records. His deposition regarding alleged contract for sale of some land by Bisram, accused, and Moola's refusal to give her consent to the transfer of land does not appear to be correct for reasons already indicated. The FIR also appears to have been fabricated and was apparently not lodged by this witness. Thus, in view of these facts and circumstances, no reliance can be placed on his testimony. There is also yet another ground to reject the prosecution case which was urged by the learned counsel for the accused appellants. It was strenuously contended by the learned counsel that the incident appears to have taken place some time in the night while Smt. Moola was sleeping in her field lor watching and protecting the unharvested Urad crop standing in her field from being stealthily cut away and removed by the theives. It was urged that although in his statement S. I. Ganesh Singh had deposed that no crop was standing in the field of Smt. Moola, but PW 1 Bahoran has deposed that Urad crop was standing in the field over 4 or 5 biswas. Thus, for protecting the crop Smt. Moola had slept in the night watching her unharvested crop and she was killed by some one unnoticed and the accused persons were falsely implicated in the case by Parwan and others. This argument cannot be said to be totally devoid of any merit as in our opinion it finds support from the post mortem report. According to it, Smt. Moola appears to have not eased herself prior to her murder as her small and large intestines were full including the rectum. This argument cannot be said to be totally devoid of any merit as in our opinion it finds support from the post mortem report. According to it, Smt. Moola appears to have not eased herself prior to her murder as her small and large intestines were full including the rectum. It appears highly improbable that an aged lady will not have eased herself in the morning or prior to 2 p. m. when she is said to have been murdered. Learned Government Advocate had pointed out that some pulpy material of about four ounces was found in her stomach, which according to him, indicates that she had taken some food few hours before her death. It is not acceptable as it is not clear from the post mortem report whether the 4 or 5 ounce pulpy material refers to undigested food taken by Smt. Moola some hours prior to her death. Besides that we find no evidence on record to indicate that Smt. Moola had in fact taken her meals prior to going to her field for grazing her goats on the fateful day. In these circumstances we are unable to accept the argument of learned Government Advocate that four ounce pulpy material found in the stomach was that of undigested food material which she must have taken few hours before she was murdered at about 2 p. m. However, in any view of the matter the mere presence of four ounces of pulpy material in the stomach rule out the possibility that the murder might not have been done at the alleged time at 2 p. m., but sometimes prior to it in the night as was urged by learned counsel for the accused-appellants. Although in the post mortem report, which was conducted at 3 p. m. on 26-9-1980, the probable time since death is indicated as 'about one day', but this opinion cannot be taken to be conclusive on the point as there can be variation both ways in the opinion regarding probable time since death recorded by the doctor conducting the autopsy. Since small and large intestines as well as rectum was found, full, we find it difficult to accept that the aged lady might not have gone to ease herself by 2 p. m. when the alleged incident is said to have occurred. Since small and large intestines as well as rectum was found, full, we find it difficult to accept that the aged lady might not have gone to ease herself by 2 p. m. when the alleged incident is said to have occurred. Thus, after taking into consideration all the facts and circumstances of the case as stated above and especially in view of the fact that the FIR was fabricated and no motive can be assigned to the accused persons to commit murder of Smt. Moola, and that both the aforesaid prosecution witnesses were inimical to the accused persons, we are of the opinion that the prosecution has miserably failed to establish that the accused Bisram and Ghurai have committed murder of Smt. Moola. The conviction recorded by the learned Sessions Judge, Sitapur cannot be sustained and deserves to be set aside. 17. WE may, at the end, also notice an argument raised by the learned counsel for the appellant about the admissibility in evidence of the post mortem report. It was urged by the learned counsel that since Dr. L. P Shukla, who had preformed the post mortem, was not examined to prove the post mortem report, and, as such, it was inadmissible in evidence. 18. DR. L. P. Shukla who had performed the post mortem report was not produced as a witness at the trial as he had in the meantime died. However, the genuineness of the post mortem report was admitted by the counsel for the appellants in the trial court as per his endorsement dated 30-4-1981 made on the back of the report which was then exhibited as Ex. Ka-11. The post mortem report will, therefore, be covered by the provisions of Sec. 294 (3) of the Cr. P.C. and its admissibility in evidence cannot be challenged. The decision of a Division Bench of this Court in Jagdeo Singh v. State, 1979 ACrR 377 upon which reliance has been placed by the counsel for the appellant is of no avail as it has since been overruled by a Full Bench of this Court in Saddiq v. State, 1981 AWC 80 = 1981 ACrR 55 wherein it was held :- ......Under sub-section (3) of Section 294 Cr. P.C. an injury report filed by the prosecution under sub-section (1) of Section 294 Cr. P.C. an injury report filed by the prosecution under sub-section (1) of Section 294 Cr. P.C. may be read as substantive evidence in place of the deposition of the doctor who prepared it if its genuineness is not disputed by the accused. If its genuineness is disputed then the doctor who examined the injured person must appear in the witness box to prove his injuries and also to prove the injury report and in such case the statement of the doctor would be the substantive evidence and the injury report may be used to corroborate or discredit his testimony. It was further held :- "In Jagdeo Singh v. State, 1979 ACrR 377 a Division Bench of this Court held " it was not permissible to exhibit the post mortem report under Section 294, Cr. P.C. and even if it was done the report could not be used as substantive piece of evidence until and unless the doctor concerned was examined in court. Documents that Section 294, Cr. P.C. contemplates reading in evidence upon admission about genuineness by the opposite party are only such, documents which when formally proved speak for themselves, it does not refer to any document, which even if exhibited cannot be read in evidence as substantive evidence. " With great respect, we are unable to agree with the view taken by this Court in the above-mentioned case. As mentioned earlier, there is no restriction placed on documents in sub-section (1) of Section 294 Cr. P.C. and it applies to all documents filed by the prosecution or the accused. If the genuineness of any document filed by the prosecution or the accused under sub-section (i) of Section 294, Cr. P.C. is not disputed by the opposite party subsection (3) of Section 294 Cr. P.C. is applicable and it may be read as substantive evidence. P.C. and it applies to all documents filed by the prosecution or the accused. If the genuineness of any document filed by the prosecution or the accused under sub-section (i) of Section 294, Cr. P.C. is not disputed by the opposite party subsection (3) of Section 294 Cr. P.C. is applicable and it may be read as substantive evidence. It is true that prior to the coming into force of the Code of Criminal Procedure, 1973 the post mortem report after it was proved was not substantive evidence but only corroborated the statement of the doctor made in Court and even now if the genuineness of the post mortem report is disputed by the accused, the doctor must be examined to prove the injuries found on the body of the deceased and also the post mortem report and the post mortem report may only be used to corroborate or discredit his testimony which is the substantive evidence. This, however, cannot lead to the conclusion that the post mortem report cannot be read as substantive evidence under sub-section (3) of Section 294 Cr. P.C. if its genuineness is not disputed by the accused. As already mentioned, the very object of enacting Section 294, Cr. P.C. would be defeated if the signature and the correctness of the contents of the post mortem report are still required to be proved by the doctor concerned even if its genuineness is not disputed by the accused. Section 294 Cr. P.C. is clear and unambiguous. It is only when the genuineness of the post mortem report filed by the prosecution is not disputed by the accused that sub-section (3) of Section 294 Cr. P.C. is applicable and the post mortem report may be read as substantive evidence and the signature and the correctness of its contents need not be proved by the doctor concerned." 19. A similar view was taken by the Full Bench of the Bombay High Court in Shaikh Farid Hussain v. The State of Maharashtra, 1983 CrLJ 487 . We respectfully agree with the view expressed in the aforesaid decisions. 20. A similar view was taken by the Full Bench of the Bombay High Court in Shaikh Farid Hussain v. The State of Maharashtra, 1983 CrLJ 487 . We respectfully agree with the view expressed in the aforesaid decisions. 20. IN the result, this appeal succeeds and is hereby allowed and the judgment and order dated 27-5-1981 passed by the Sessions Judge, Sitapur, covicting the appellant No. 1 under Section 302 IPC and appellant No. 2 under Section 302/34 IPC and sentencing them to imprisonment for life is hereby set aside and the accused persons are acquitted of the charges levelled against them. The appellant No. 1 is in jail. He shall be released forthwith unless wanted in connection with some other case. The appellant No. 2 is on bail. He need not surrender. His bail bonds are cancelled and sureties discharged.