Judgment Parmeshwar Dayal, J. 1. THIS appeal arises out of the judgment and order dated 7-2-1978, passed by Sri K. Narayan, Ilnd Additional Sessions Judge, Paizabad, convicting and sentencing the appellants Sayyed Ali, Hayat Mohammad, Mohammad Abrar, Raz Mohammad, Iqbal Ahmad, Hikmat Ali, Abdul Hai, Dost Mohammad, Wahid, Zamal Akhtar, Zain Ullah, Shaukat Ali and Munnar to 2 years rigorous imprisonment under section 147 IPC and the appellants Sirtaj, Mohammad Shahid and Wali Mohammad to 3 years rigorous imprisonment under section 148 IPC and further convicting and sentencing all the appellants under section 302 IPC read with Section 149 IPC to imprisonment for life and to pay a fine of Rs. 200/- each, and directing the sentences to run concurrently. 2. THE prosecution case, briefly stated, has been that there have been two parties in village Hanswar, within the circle of P. S. Baskhari, district Faizabad, the deceased Dularey headed one party while the other party consisted of the accused-appellants, There has been a long standing litigation and enmity between them. Kalimullah PW 3 lodged FIR followed by a complaint against the appellants Mohammad Shahid, Wali Mohammad and Sirtaj, in the year 1974. This complaint was [ending on 19-6-1975 when Dularey was murdered. THE complaint was subsequently dismissed. Abdul Kuddus PW 4 lodged FIR under Section 326 IPC against the appellants Sirtaj and Abrar and the trial arising out of that FIR was pending when the murder trial of Dularey was proceeding. Proceedings under Section 107 Cr. P.C. were also drawn between the parties. THE deceased Dularey was prosecuted for an offence punishable under Section 307 IPC alongwith Mohammad Shafi son of Kalimuddin PW 3, Mohammad Ayub, Shabbir PW 1, Mushir, Tufail and Taskir Ahmad PW 2. Ten persons were prosecuted for an offence punishable under Section 307 IPC for assaulting Tasadduk. It was due to the aforesaid enmity which the appellants entertained against Dularey and his family members that on 19-6-1975 at about 7-30 a. m. when Dularey was coming out of the tea stall of Siyaram in the Bazar of Hanswar, within the circle of P. S. Baskhari, district Faizabad, after taking his morning tea with Shabbir Ahmad PW 1 that they saw the appellants at a distance of 10 or 12 steps towards the north of that shop. The appellant Sirtaj and Mohammad Shahid held country made pistols and Wali Mohammad held a Farsa while the remaining appellants possessed lathis. Sirtaj and Mohammad Shahid exhorted that they should be killed, with the result that all the appellants surrounded the deceased Dularey and assaulted him with lathis. Shabbir Ahmad PW 1 managed to escape and he raised alarm attracting Taskir Ahmad PW 2, Kalimullah PW 3, Abdul Kuddus PW 4, Tassaduk Husain, Abdul Hai, Ali Jan, Abdul Wahid, Izzat, and Kalimullah. The appellants abused and assaulted these witnesses also by means of lathis and Katta. Ram Asrey, Abdul Rashid, Layeeq, Abdul Rauf and several other persons reached there. During the course of assault on the deceased Dularey the appellant Shaukat was saying that he was still alive and then the appellants reassaulted Dularey. Smt. Mehmunnisa and Km. Jhunjhun also reached there and they received fire arm injuries. 3. THE deceased Dularey in an injured state alongwith other injured persons was taken to hospital. Ganga Saran Misra, Pradhan of the village Hanswar, scribed the FIR Ex. Ka-1 at the instance of Shabbir Ahmad PW 1 who handed it over in police station Baskhari on 19-6-1975 at 10 a m. at a distance of 5 miles. On its basis, the chik FIR Ex. Ka-53 was prepared and the case was registered at no. 14 of the G. D. vide copy Ex. Ka-54. THE Investigating Officer R. S. Rai PW 5 was present in the police station when the case was registered. He in errogated Shabbir Ahmad PW 1 in the police station whereafter he reached Hanswar hospital andJ interrogated Dularey alias Mohd. Ismail, Taskir Ahmad PW 2, Abdul Kuddus PW 4, Kalimullah PW 3 and others. On reaching the place of occurrence, he prepared the site plan Ex. Ka-2. He picked up the blood stained and plain earth which he kept in sealed containers and of which he prepared a memo. He was informed at about 3-30 p. m. that Mohd. Ismal alias Dularey died. He prepared the inquest report and other papers vide Exts. Ka-3 to Ka-6 and handed over the dead body in a sealed cover to constable Chandra Shekhar Bajpai for being taken to mortuary. THE accused- appellants were nut traceable and proceedings under sections 82/83 Cr. P.C. were drawn against them vide Ex. Ka-7 to Ka-38. THE accused appellants surrendered themselves in Court. 4. DR. Ka-3 to Ka-6 and handed over the dead body in a sealed cover to constable Chandra Shekhar Bajpai for being taken to mortuary. THE accused- appellants were nut traceable and proceedings under sections 82/83 Cr. P.C. were drawn against them vide Ex. Ka-7 to Ka-38. THE accused appellants surrendered themselves in Court. 4. DR. S. H. A. Rizvi PW 6 prepared the injury reports Exts. Ka-41 to Ka-51 pertaining to Izzat, Abdul Wahid, Kalimullah PW 3, Ali Jan, Km. Jhunjhun, Taskir Ahmad PW 2, Abdul Hai (other than the accused), Smt.Mehmunnisa, Abdul Kuddus PW 4, Tassaduk Husain and of the deceased Ismail alias Dularey on 19-6-1975. DR. V. N. Agarwal PW 7 conducted the post-mortem examination on the dead body of Dularey on 20-6-1975 at about 3-15 p. m. and prepared the [post mortem examination report Ex. Ka-52. On completing the investigation, the Investigating Officer submitted chargesheet Ex. Ka-39. 5. THE accused pleaded not guilty and claimed to have been falsely implicated. 6. THE prosecution examined 9 witnesses. Shabbir Ahmad PW 1 is the informant, Taskir Ahmad PW 2 Kalimuddin PW 3 and Abdul Kuddus PW 4 have been injured eye witnesses, R. S. Rai PW 5 has been the Investigating Officer, Dr. S. H. A. Rizvi PW 6 proved the injury reports, Dr. V. N. Agarwal PW 7 conducted the post mortem examination on the dead body of Dularey, and clerk constable Kesari Prasad PW 9 has been a formal witness. THE court examined S. I. Kashi Nath CW 1. The accused appellants examined in their defence 9 witnesses Dr. S. N. Rai DW 1 of district Jail, Faizabad sent the appellant Sirtaj for X-ray examination on 5-7-1975, Rajendra Prasad Tiwari DW 2 stated on defence case that Sirtaj was injured at the hands of Izzat,, Dr. H. K. Verma DW 3 stated about the X-ray examination of Sirtaj, Dr. J. Dayal DW 4 proved the injury reports of Mushtak Ahmad, Abdul Hai, Dost Mohammad and Mohammad Ishaq on the side of the appellants, Dr. B. Das DW 5 proved the injury report of Sirtaj, Majiuddin DW 6 stated about the defence case, Mushtak Ahmad DW 7 also stated about the defence case, Kedar Nath DW 8 proved the map of the village and Abdul Hai DW 9 stated about an application moved by Mushtak against Taskir Ahmad PW 2. 7. B. Das DW 5 proved the injury report of Sirtaj, Majiuddin DW 6 stated about the defence case, Mushtak Ahmad DW 7 also stated about the defence case, Kedar Nath DW 8 proved the map of the village and Abdul Hai DW 9 stated about an application moved by Mushtak against Taskir Ahmad PW 2. 7. THE trial court made a local inspection also and prepared the notes dated 12 12-1977, and convicted and sentenced the appellants as aforesaid. 8. THE occurrence is said to have been taken place near the tea stall of Siyaram in village Hanswar, within the circle of P. S. Baskhari, district Faizabad. THE site plan Ex. Ka-2 shows that the tea stall of Siyaram existed towards the south of a road running from east to west. THE Investigating Officer found the blood stained earth across that road towards north which place is indicated by letter A. THE witnesses are shown to have witnessed the occurrence from the north of the place of occurrence which place is indicated by letter B. THE distance between the place of occurrence and the place where the witnesses are said to have stood was of 100 yards. THE ladies who had received fire arm injuries stood near the wooden stall of Lal Mohammad which place was towards the north of the place where the witnesses were standing. On the prosecution side, Taskir Ahmad PW 2, Kalimuddin PW 3, Abdul Kuddus PW 4, Izzat, Abdul Whid, Ali Jan, Km. Jhunjhun, Abdul Hai, Smt. Mehmunnisa and Tassaduk Husain had injuries on their persons. On the side of the appellants, the appellants Sirtaj, Dost Mohammad and Abdul Hai along with two others, namely, Mushtak and Mohammad Ishaq, had injuries on their persons. That Mushtak and Mohammad Ishaq were not named as accused persons in the FIR. 9. IT appears that the learned lower Court itself was not satisfied with the performance of the prosecution in proving its case against the appellants. The medical evidence adduced on behalf of the prosecution has been far from convincing. Mohammad Izzat and Ali Jan are shown to have been medically examined by Dr. 9. IT appears that the learned lower Court itself was not satisfied with the performance of the prosecution in proving its case against the appellants. The medical evidence adduced on behalf of the prosecution has been far from convincing. Mohammad Izzat and Ali Jan are shown to have been medically examined by Dr. S. H. A. Rizvi PW 6 on 19-6-75 at 11 p.m. They could not possibly be examined simultaneously at the same time, Kalimudin PW 3 and Tasadduk Husain are shown to have been simultaneously examined at 10 p.m. which does not appear to be possible. Km. Jhunjhun and Smt.Mehmunnisa were found to have be;n injured by means of fire arms Their injuries were superficial and signs of scorching and smudging were found present around their wounds vide injury reports Exts. Ka-45 and Ka 48. Dr. S. H. A. Rizvi PW 6 stated that he had stitched the wounds of the deceased Dularey after examining his injuries, but there is no indication in the post-mortem examination report Ex Ka 52 that any wound was found stitched. The injury report Ex Ka 51 of the deceased Dularey shows that Dularey had expired at 3-25 p.m. due to cordio respiratory failure and due to shock. As about the signs of scorching and smudging of the wounds of Km. Jhunjhun and Smt.Mehmunnisa, Dr. S. H. A. Rizvi PW 6 stated that be used the word ' smudging ' in the sense of blackening. The injuries of both these ladies were superficial and are shown to have been caused by means of firearms. These injuries Could be caused from a considerable distance and in that case, there could not be any possibility of there being scorching or smudging or blackening. The learned lower court has rightly observed that the boby of Smt.Mehmunnisa must have been covered with clothes and it was highly improbable that such marks could be present on her body. The fire arm wounds of these two ladies are shown to be of the dimensions of 1 cm x 1 cm and the pellets, according to the learned lower court, did not contain these dimensions. The duration of injuries of Ali Jan has been shown as; 24 hours which is not in consonance with the prosecution case or with the defence case. The learned lower Court believed that Dr. The duration of injuries of Ali Jan has been shown as; 24 hours which is not in consonance with the prosecution case or with the defence case. The learned lower Court believed that Dr. S. H. A. Rizvi PW 6 has been careless in preparing these injury reports. These injury reports rather gave rise to a suspicion that they were not correct. Taskir Ahmad PW 2 and Kalimuddin PW 3 had not received any fire arm injuries. Shabbir Ahmad PW 1 accompanied the deceased Dularey and he had not received any injury at all. The notes of injuries made in the accident register have been written as if a bed head ticket of patient was prepared as there was a mention of the medicines prescribed. The time of death has also been mentioned in the injury report of the deceased for which there was no occasion. Dr. S. H. A. Rizvi PW 6 appears to have prepared the injury reports after the death of Dularey at the instance of the Investigating Officer, as observed by the learned lower Court who had an opportunity of observing the demeanour of the witnessess For these reasons, any reliance could not be placed on the dying declaration also which was recorded by the Investigating Officer himself. 10. THE appellant Sirtaj was medically examined in district hospital, Faizabad on 20-6-75 vide injury report Ex Kha 5. He had 6 fire arm injuries including injury no. 1 which consisted of a fire arm wound of entrance multiple in an area of 11 " x 8 " over back, each wound being round in shape 2.10 " x 2.10 " with pellets palpable,, and the injury no. 4, which consisted of multiple fire arm wound in an area of 18 " x 6 " over the back of head, leg on the left side, each being 2/10 " x 2/10 " and pellets were palpable and the injury no. 5 consisting of fire arm wound of entrance on the back side of neck 2/10 " x 2/10 " with palpable pellets. One pellet was removed from the right thigh, left thigh and the head. 5 consisting of fire arm wound of entrance on the back side of neck 2/10 " x 2/10 " with palpable pellets. One pellet was removed from the right thigh, left thigh and the head. Mushtak Ahmad had three injuries including an incised wound 5 cm x .5 cm in the middle of the head 6 cms away from the back portion of the head sand incised wound 3 cm x .5 cm x scalp deep on the left side of head 8 cms above the root of the ear. Mohammad Ishaq had three injuries including a contusion 4 cm. x 2 cm. on the left shoulder 3 cms. exterior, to the collar bone. All these injuries could not possibly be self suffered or self inflicted. 11. DR. B. Das DW 5 was not questioned on the point that if the injuries of Sirtaj could be self inflicted or self suffered. 12. THE appellants have led evidence to the effect that Sirtaj received injuries at the hands of Izzat. In any case, it is quite believable that 5 persons on the side of the appellants also received injuries in that occurrence. THE prosecution did not explain those injuries and concealed the fact of the injuries suffered on the side of the appellants. All the more, some of the injuries received on the side of the prosecution as that of the two ladies are not believed to have been suffered at the time of the occurrence and in the manner, the prosecution claimed. THE injured on the side of the appellants were not medically examined on the day of the occurrence. It has been contended on their behalf that they happened to be the accused and they were hiding themselves and were trying to find out an opportunity for getting themselves medically examined at safer moment. A number of independent witnesses were available at the scene of occurrence according to the FIR itself. But none of them has been examined. Those examined have been highly inimical witnesses. Shabbir Ahmad PW 1 had not received any injury and it is doubtful that if he was present at the scene of occurrence. Taskir Ahmad PW 2, Kalimuddin PW 3 and Abdul Kuddus PW 4 have been inimical witnesses. But none of them has been examined. Those examined have been highly inimical witnesses. Shabbir Ahmad PW 1 had not received any injury and it is doubtful that if he was present at the scene of occurrence. Taskir Ahmad PW 2, Kalimuddin PW 3 and Abdul Kuddus PW 4 have been inimical witnesses. The occurrence is said to have taken place near the tea stall of Siyaram soon after the deceased Dularey and Shabbir Ahmad PW 1 had taken their tea but Siyaram has not been examined. It does not stand to reason that how there has been an assemblage of so many persons near that tea stall as the prosecution claimed. 13. THE learned lower Court itself disbelieved the prosecution case on the point of the absconding of the appellants; and the proceedings under sections 82/83 Cr. P.C. 14. THE target of the appellants was the deceased Dularey and Shabbir Ahmad PW 1. Shabbir Ahmad PW 1 did not receive any injury whatsoever. Two appellants are said to have possessed fire arms which they used but the deceased Dularey did not receive a singles fire arm injury. Two ladies are said to have received fin arm injuries which case of the prosecution is itself not believable, as discussed above. In the FIR, it has been mentioned that Sirtaj and Shahid gave a Lalkar saying that they should be killed as they were available at an opportune moment (BARE MAUKE SE MIL GAYA HAI). This sentence shows that they were after Dularey only and it was per chance that they came across Dularey on that day and at that time. If it was so, there was no occasion for the 16 appellants to have collected there and to have surrounded Dularey for committing his murder. Subsequently, it is mentioned in the FIR that they chased other witnesses, assaulted hem by means of lathis and Kattas and that they returned back to assault Dularey in order to make sure that he was dead. All this theory does not appear to be probable. 15. THE Investigating Officer was not able to find out a single pellet from the alleged place of occurrence and he found the blood at one place only. Shabbir Mohammad PW 1 stated that blood had fallen at a place where the witnesses had fallen down and that blood was picked up from that place by the Investigating Officer. 15. THE Investigating Officer was not able to find out a single pellet from the alleged place of occurrence and he found the blood at one place only. Shabbir Mohammad PW 1 stated that blood had fallen at a place where the witnesses had fallen down and that blood was picked up from that place by the Investigating Officer. THE Investigating Officer denied that he found blood except at the place shown by letter 'A' in the site-plan. So it cannot be said that the prosecution las established beyond doubt the place of the occurrence also. 16. THE learned trial court rightly disbelieved the prosecution case regarding the dying declaration. Dr. S. H. Rizvi PW 6 stated that be did not find the deceased Ismail alias Dularey in a conscious state on the day he examined the injuries of the deceased and other witnesses and that he had not regained consciousness during his presence. Even the scribe of the first information report has not been an independent witness in this case. Ganga Saran scribed the first information report and he had contested an election for the seat of Pradhan against Mohammad Iqbal son of Sirtaj appellant. The injured eye-witnesses have also been inimical towards the appellants. In the first information report it was specifically mentioned that Ram Asrey, Abdul Rasid, Layeeq Ahmad and Abdul Rauf had also witressed the occurrence but none of them has been examined. Sabbir Ahmad PW 1 stated that Siaram happened to be a partyman of the accused and this is why he has not been examined as a witness. This explanation is not satisfactory for not examining him. Sabbir Ahmad PW 1 and the deceased Dularey had themselves gone to his tea stall to take tea. Even if he belonged to same party, his examination was necessary for just and correct decision on the case and it was the duty of the prosecution to have produced him. Taskir Ahmad PW 2 admitted that he and other prosecution witnesses had enmity with the appellants since one year prior to the occurrence. 17. Even if he belonged to same party, his examination was necessary for just and correct decision on the case and it was the duty of the prosecution to have produced him. Taskir Ahmad PW 2 admitted that he and other prosecution witnesses had enmity with the appellants since one year prior to the occurrence. 17. THE defence case has been that the tea stall of Taskir PW 2 existed near the mosque where a cup was broken by Mushtaq, and Taskir PW 2 quarreled with him about the price of that cup, that Taskir PW 2 " dealt a blow by means of a Khurpi on the head of Mushtaq ; Mushtaq wielded a Daoda ; their alarm attracted Dularey, Abdul Hayi, Abdul Wahid, Alijan and Kahm Ullah PW 3 along with Dost Mohammad., Abdul Hayi son of Dost Mohammad and Mohammad Ishaq, and thereupon a fight ensued between them. Sirtaj reached there to intervene, and that Izzat fired at Sirtaj by means of a country made pistol and continued firing in a maddening way. THE tea stall is claimed to be belonging to Tufail who happened to be the brother of Taskir Ahmad PW 2, Shaukat, Munawar and Iqbal set up the plea of alibi. 18. IT is worth noting in this case that the target of the appellants was the deceased Dularey, and the appellants possessed fire arms and Pharsa also, but Dularey did not receive a single gunshot wound or a Pharsa injury. Taskir Ahmad PW 2 stated that the appellants had separate residences and the distance between their houses ranged from one furlong to five furlongs. So also it becomes doubtful that how and under what circumstances they assembled there for committing offences in question within a span of 4 to 6 minutes. Kalimullah PW 3 admitted that he was also inimical towards the appellants. He claimed to have witnessed the occurrence while going to ease himself but he had not stated this fact under Section 161 Cr. P.C. before the Investigating Office, Abdul Kuddus PW 4 claimed that he was going to take his bath in a ' Pokhar ' when he witnessed the occurrence, but he had not stated all this before the Investigating Officer when his statement under Section 161 Cr. P.C. was recorded. He admitted that he belonged to the party of the deceased Dularey. 19. P.C. was recorded. He admitted that he belonged to the party of the deceased Dularey. 19. THE learned trial court did not place implicit reliance on the statement of Dr. V. N. Agarwal PW 7 recalled as PW 8 while discussing the absence of stitching marks in he cut wounds of the deceased at the time of post-mortem examination. THE learned trial court stated that Dr. V. N. Agarwal PW 7 gave false statement on account of professional brotherhood with Dr. S H. A. Rizvi PW 6. 20. THE Investigating Officer R. S. Rai PW 5 claimed to have recorded the statement of Dularey under Section 161 Cr. P.C. on which the prosecution relied and claimed that it was the dying-declaration of Dularey. THE learned trial court has itself observed that in view of the statement of Dr. S. H. A. Rizvi PW 6 coupled with the statement of Abdul Kuddus PW 4 it was doubtful that if Dularey was able to make such a statement whose condition was so low at the time of medical examination that a mental clarity could not be expected from him. As about he defence version the same could not be helpful for disposal of this case because it is a well established law that it was for the prosecution to prove the guilt of the appellants and not for the appellants to prove their innocence. Still the circumstances create doubt on the point that if all the appellants were rightly roped in by the prosecution. Raj Mohammad has been a witness against Taskir Ahmad PW 2 in a case under section 307 IPC and Raj Mohammad and his sons-Wali Mohammad, Hayat Mohammad and Hikmat Ali have all been the accused in the present case. Iqbal is the father of Munawar and Munawar has been a witness against Taskir Ahmad PW 2 while Iqbal had contested an election against Ganga Saran, the scribe of the first information report of the present case. It is not disputed from the prosecution side that the prosecution witnesses and the scribe of the first information report had been inimical towards the appellants No doubt Taskir Ahmad PW 2 and Kalim Ullah PW 3 had injuries on their persons and it can be believed that they were present a) the scene of occurrence but they did not come with clean hands. 21. 21. IT is established from the evidence on record that some persons on the side of the appellants had received injuries during the course of occurrence, but the prosecution, instead of discharging its burden of explaining the injuries of those injured on the side of the appellants, concealed this fact. The injuries on the persons of those injured on the side of the appellants could not be self-suffered or self-inflicted. The learned lower court has erred in drawing conjectures that some old pellets might be present in the body of Sirtaj. 22. LOOKING into all the aspects of the prosecution case, the evidence and the theory set up by the prosecution we entertain grave doubts about the correctness of the prosecution case against the appellants regarding the manner in which some person received injuries on the side of the prosecution and resulting into the death of Ismail alias Dularey., The prosecution case regarding the injuries of some persons or atleast of the ladies appear to be false. The learned lower court sentenced the appellants under section 302 IPC to imprisonment for life and to pay a fine of Rs. 200/- but, in contravention of the provisions of law, did not pass any sentence of imprisonment in the event of default in payment of the amount of fine. The appellants deserve benefit of doubt and this appeal succeeds. Accordingly, this appeal is allowed and the judgment and order, passed by the trial court against all the appellants, are set aside. The appellants are acquitted of the charges, levelled against them. The appellants are on bail. Their bail bonds are discharged, and they need not surrender to the same. Appeal allowed.