Judgment O.P. Mehrotra, J. 1. THIS appeal is directed against the judgment dated 17-8-77 passed by Shri D.N. Shukla, Additional Sessions Judge Banda convicting the appellants under sections 302/149 and 307/149 and 148 IPC. He sentenced each of them to undergo imprisonment for life for the offence under section 302/149 IPC. No separate sentence was awarded for the offences under sections 307/149 and 148 IPC. Besides five appellants viz. Pratap Singh, Shiv Narain Singh, Sahdeo Singh, Ram Basawan Singh and Prem Singh, there were two other accused persons viz. Chandra Pal Singh and Amarjit Singh who were given benefit of doubt on consideration of prudence and alertness in scrutiny to ward off the least possibility of the innocent suffering at the hands of the court. 2. THE charge against the seven accused persons was that on 12-11-72 at about 7 a. m. in village Sindhan Kala they alongwith one Ranjit Singh (since dead), formed an unlawful assembly with the common object of committing murder of Chunni Singh alias Vijai Bahadur Singh (deceased) and Mahabali Singh PW-1 armed with guns and spears, and that in prosecution of the said common object committed the murder of Chunni Singh and caused gun shot injuries to Mahabali Singh with the necessary intention and knowledge. There is no dispute that deceased Chunni Singh alias Vijai Bahadur Singh was the younger brother of Vijai Karan Singh PW 2 and that he was father-in-law of informant Mahabali Singh's brother Ram Bali Singh. It is alleged that the seven accused persons and accused Ranjit Singh (since dead) were members of one party. They and the two victims belonged to the same village viz. Sindhan Kala. Onkar Singh, uncle of accused Ram Basawan Singh. had been murdered. Chunni Singh (deceased), Vijai Karan Singh PW 2, Kalloo Singh, Pitambar Singh and Mukta Singh were accused in that murder case, Chunni Singh (deceased) and Pitambar Singh were sentenced to death and the others were awarded imprisonment for life but all of them were acquitted by the High Court. This enmity is said to be the motive for this crime. 3. IT is also alleged that Smt. Shiv Pati alias Moola, wife of the elder brother of accused Prem Singh, had sold about 11-bighas land to Ram Bali, younger brother of informant Mahabali Singh PW 1. Accused Prem Singh had filed objection in the mutation proceedings but the same was rejected. 4. 3. IT is also alleged that Smt. Shiv Pati alias Moola, wife of the elder brother of accused Prem Singh, had sold about 11-bighas land to Ram Bali, younger brother of informant Mahabali Singh PW 1. Accused Prem Singh had filed objection in the mutation proceedings but the same was rejected. 4. AS regards the occurrence it was said that on 12-11-72 at about 7 A.M. Mahabali Singh PW 1 and Chunni Singh (deceased) were coming from the house of Chunni Singh. Mahabali Singh had gone there on the previous day but could not return as it had become late and was returning to his house in the morning, while Chunni Singh was going from his house to his Bara (enclosure). When they reached in front of the house of accused Shiv Narain Singh, all the eight persons (the seven accused and Ranjit Singh) came out from the house of Shiv Narain Singh armed with weapons. Ranjit Singh, Prem Singh, Chandra Pal Singh and Pratap Singh were armed with guns while the remaining four had Barchhi (spears) in their hands. Accused Ram Basawan Singh instigated his other companions to kill them, whereupon Vijai Karan Singh PW 2, Jag Mohan Singh, Sukhraj Singh, Phaguna Kewat and several others present nearby offered oral intervention threatening serious consequences if any of the assailants moved forward. This, however, had no effect on the assailants and the accused persons having guns fired at Chunni Singh and Mahabali Singh. On receiving injuries Chunni Singh moved forward and fell down, where upon the accused persons again fired so that he fell down and died. Mahabali Singh PW 1 received gun shot injuries on his right leg. The assailants then escaped towards the north. The dead body of Chunni Singh was removed by his uncle and others to the door of Mukta Singh. Injured Mahabali Singh was put on a cot by his brother Ram bali and others and was taken to police station Pailan . On the way at the door of Mukta Singh, he prepared written report Ex. Ka-1 and lodged the same at police station Pailani which was at a distance of two miles east of the spot on the same day at 8.30 a. m. A case was registered and investigation was taken up by S. 0. Sri T. N. Pandey PW 3. Ka-1 and lodged the same at police station Pailani which was at a distance of two miles east of the spot on the same day at 8.30 a. m. A case was registered and investigation was taken up by S. 0. Sri T. N. Pandey PW 3. He interrogated informant Mahabali Singh at the police station and reached the spot where he interrogated other witnesses. He found the dead body of Chunni Singh in front of the house of Mukta Singh. At his instance the inquest report was prepared by Sub-Inspector Laxmi Narain, He recovered Mood from the Rasta near the well and also recovered two empty cartridges from that place. Accused Chandra Pal Singh was arrested on the same day, and Amarjit Singh was arrested shortly afterwards. The remaining accused persons were not available. After completing the investigation, he submitted charge-sheet on 25-12-72. The remaining accused persons surrendered before the court after their property was attached. 5. THE autopsy on the dead body of Chunni Singh alias Vijai Bahadur Singh was conducted by Dr. G. K. Misra on 13-11-72 at 2 p. m. THE deceased was aged about 40 years and had died about 1-1/2 days back. THE following ante mortem injuries were found: 1. Six gun shot wounds of entry each measuring .75 cm. x.75 cm x muscle on the outerside of right thigh middle lower third situated in an area of 13 cm x 12 cm. with inverted margins and echymosed edges directed upward and to the front of the high. Two pellets recovered from the muscles of thigh and two pieces of metallic pellets. 2. Four gun shot wounds of exit on the front and upper third of right thigh, each measuring 1cm x 1cm, situated in an area of 7cm x 2.5cm with everted margins and lacerated edges and communicating with injury no. 1. 3. Abrasion 3cm x 2cm on the middle and outerside of right thigh. 4. Abrasion 2 cm x 1.75 cm. on the outerside of right leg upper third. 5. Two gun shot wounds of entry each measuring .75 Cm x .75 cm x muscle situated in an area of 5 cm x 4 cm on the outerside of the right forearm middle with inverted and echymosed margins. 6. 4. Abrasion 2 cm x 1.75 cm. on the outerside of right leg upper third. 5. Two gun shot wounds of entry each measuring .75 Cm x .75 cm x muscle situated in an area of 5 cm x 4 cm on the outerside of the right forearm middle with inverted and echymosed margins. 6. Two gun shot wounds of exit measuring 1 cm x 1 cm on the front of right forearm upper third 1.5 cm apart from one another-Margins everted and lacerated and communicating with injury no 5. 7. Gun shot wound of entry .75 cm x .75 cm x muscle on the back of left forearm upper third 7 cm below the elbow. 8. Abrasion 1.5 cm x 1 cm on the back of left forearm upper third, 3 cm, above the margins inverted and echymosed. 9. Gun shot wound of exit 1 cm on the back of left forearm 3 cm below injury no. 7 with inverted and lacerated margins and communicating with injury no. 7. 10. Gun shot wound of entry .75 cm x .75 cm muscle on the back of left forearm .5 cm internal to injury no. 7 with inverted and echymosed margins. One pellet recovered from the broken upper end of left olecranon process of ulna. 11. 3 (Three) Gun shot wounds of entry each measuring 75 cm x .75 cm x abdominal cavity in an area of 8 cm x 1.5 one above the other. THE upper wounds is 2.5 cm above the middle wound and the lower wound is 2 cm below the lower wound, situated on the left side of: back, 4 cm to the left of spine. Margins inverted and echymosed directed forward to the front of abdomen. 12. Gun shot wcund of entry .75 cm x .75 cm x abdominal cavity on the left back 3 cm above the upper end of left gluteal fold x 8 cm from the spine. Margins inverted and echymosed, directed towards the front of abdomen. 13. Gun shot wound of entry .75 cm x .75 cm x abdominal cavity on the right side of back 5 cm above the upper end of right gluteal fold and 4 cm from the spine. Margins inverted and echymosed, directed towards front of abdomen 14. Margins inverted and echymosed, directed towards the front of abdomen. 13. Gun shot wound of entry .75 cm x .75 cm x abdominal cavity on the right side of back 5 cm above the upper end of right gluteal fold and 4 cm from the spine. Margins inverted and echymosed, directed towards front of abdomen 14. Two gun shot wounds of exit each 1 cm x 1 cm on the right side of abdomen 1.5 cm below the navel at 7 O'clock position and 4 cm apart from one another with everted and lacerated margins communicating with injuries nos.12 and 13. Left iliac bone fractured. 15. Two gun shot wounds of exit 1 cm on the left side of abdomen and 2 cm apart from one another 7 cm from the navel at 2 O'clock position communicating with injury no. 11. Margins everted and lacerated. 16. Swelling 5 cm x .3 cm on the left side of abdomen, 3 cm below the navel at 4 O'clock position and on its section. Two metallic pellets recovered. Internal examination revealed that membranes and brain were congested. Peritoneum was lacerated at several places. THE abdominal cavity was full of blood. One pellet was recovered from the surface of bladder. Stomach was empty. Small intestines contained gas and some faecal matter and was lacerated at several places. Large intestines contained gas and some faecal matter. Pelvic colon was ruptured. Death resulted from syncope due to shock and haemorrhage. (Vide post mortem report Ex. Ka-37, the formal proof whereof was dispensed with by the counsel for the accused). 6. THE injuries of informant Mahabali Singh PW 1 were examined by Dr. K. L. Pillai, Surgeon, District Hospital Banda on 12-11-72 at 5.15 P. M. He found the following injuries on his person :- 1. Lacerated wound 2 cm x 1 cm x muscle directed downwards and outwards. THE probe goes in the direction for about 5 cm over hanging flap of skin is ragged at its edge and contused over an area of 5 cm x 8 cm. THE margin is inverted. THE wound is situated on the posterior medial aspect of right thign 15-1/2 cm. above the joint line of right knee joint. 2. Lacerated wound 1 cm x 12 cm x muscle deep on the front of right thigh 9 cm above the knee joint. THE margin is inverted. THE wound is situated on the posterior medial aspect of right thign 15-1/2 cm. above the joint line of right knee joint. 2. Lacerated wound 1 cm x 12 cm x muscle deep on the front of right thigh 9 cm above the knee joint. THE wcund is easily probed at a depth of 2 cm in the direction of upwards and inwards. THE edges of the wounds are ragged. Nature and causation of the injuries are kept under observation. X-ray requested. Duration about half day. (Vide injury report Ex. K.a-40, formal proof, whereof was dispensed with). THE X-ray of right thigh of Mahabali Singh disclosed presence of two defused radio opaque shadows of metallic pellets in the region of right thigh. (vide X-ray plate and X-ray report Ext. Ka-41 and Ex. Ka-42). In support of its case the prosecution examined only two eye witnesses viz. PW 1 Mahabali Singh, who was injured in this incident and who is also the informant of this cm, PW 2 vijai Karan Singh was the brother of the deceased, PW 3 S. I. T. N. Pandey was the Investigating Officer of this case. The two doctors who had conducted the post mortem examination and had examined the injuries of PW 1 Mababali Singh or had done the X-ray were not examined as the learned counsel for the accused had dispensed with the formal proof of the post mortem report, injury report X-ray plate and report. 7. ALL the accused pleaded not guilty. They denied their participation in the occurrence and stated that they were not there and had been falsely implicated on account of enmity and that the witnesses were also deposing due to enmity. They did not adduce any defence evidence. 8. 7. ALL the accused pleaded not guilty. They denied their participation in the occurrence and stated that they were not there and had been falsely implicated on account of enmity and that the witnesses were also deposing due to enmity. They did not adduce any defence evidence. 8. THE learned Sessions Judge did not rely upon the evidence of PW 2 Vijai Karan Singh, brother of the deceased, on the ground that he was a partisan witness and had adopted a some what circuitous route and his presence at the spot was not free from doubt He however, believed PW 1 Mahabali Singh who had received injuries and whose presence, therefore, could not be doubted and placing reliance upon his sole testimony, he held that the prosecution case against the present appellants was proved beyond reasonable doubt and accordingly convicted them but gave benefit of doubt to accused Chandra Pal Singh and Amarjit Singh on consideration of prudence mainly on the ground that they did not make any attempt to abscond and were arrested without any coercive process having been taken against them. In this connection it may be mentioned at the outset that accused Shiv Narain Singh from whose house the assailants are said to have emerged before starting the assault, has two houses in the same locality, one lying to the east of the house of Raghuvir and slightly to the west of the well, and the other towards the north east of the well and lying to the north of the houses of Bhikhua and Guthua shown as 'Makan Bara Shiv Narain' in the site plan. The Investigating Officer in the site plan prepared by him has shown the accused persons having emerged out of the house of Shiv Narain Singh lying to the east of the house of Raghuvir. However, when PW 1 Mahabali Singh entered the witness box, he gave a different version and made a categorical statement that all the accused persons had emerged cut of that house of accused Shiv Narain which lay to the north of the house of Bhikhua which was adjacent to the house of Guthua. On the other hand the statement of PW 2 Vijai Karan Singh was in conformity with the site plan prepared by the Investigating Officer. On the other hand the statement of PW 2 Vijai Karan Singh was in conformity with the site plan prepared by the Investigating Officer. Faced with the above difficulty, the learned Sessions Judge observed that there was no doubt that the Investigating Officer had helped the accused substantially by changing the place of occurrence by about 100 yards or so. He further observed that injured Mahabali Singh was speaking the truth about the place of occurrence but the other witness (viz. Vijai Kanan Singh) had fallen in line with the created version of the Investigating Officer. "It was observed that" the place of occurrence has been slightly changed and the court does not propose to rely upon the evidence of the brother of the deceased as his conduct in supporting something not true did create a doubt about his presence. 9. THE above approach of the learned Sessions judge has been seriously criticised by the learned counsel for the appellants who vehemently contended that the above material discrepancies and other attending circumstances clearly lead to the irresistible conclusion that even though PW 1 Mahabali Singh who was injured might have been present at the scene of occurrence yet he did not see the assailants actually emerging out of the house of Shiv Narain Singh and did not see them actually firing because the occurrence bad taken place in the late hours of the night or in the early hours of the morning when it was still dark, say at about 5.30 or 6 a. m. when this witness and the deceased might be going to attend to the call of nature or for some other work. In support of his contention he pointed out to the statement of PW 1 Mahabali Singh, where he stated that the accused had fired the shots from a distance of one foot which was belied by the medical evidence according to which the shots must have been fired from a greater distance as there was no scorching, blackening or tattooing around any of the wounds received by the deceaeed or the injured. 10. HAVING heard learned counsel for the parties and have carefully considered all the facts and circumstances of the case, we find considerable force in the above contention made by the learned counsel for the appellants. 10. HAVING heard learned counsel for the parties and have carefully considered all the facts and circumstances of the case, we find considerable force in the above contention made by the learned counsel for the appellants. The statement of PW 2 Vijai Karan Singh has already discarded by the learned Sessions Judge and we agree with that finding His presence at the spot was not free from doubt. He was a partisan witness being the brother of the deceased and was inimically disposed towards some of the accused persons. He was not a natural witness of the locality. According to him he was going from his house to his cattle shed when he witnessed this occurrence. He, however, admitted in his cross examination that the place of occurrence does not fall on the shortest way from his house to his Bakhari (cattle shed) which was towards the north and that he had adopted a circuitous route, because the house of some of his enemies fell on that way. This was not at all a convincing reason and the learned Sessions Judge rightly held that his presence at the spot was doubtful and discarded his testimony. No independent witness of the locality who was expected to have seen this occurrence if the same had happened at 7 A. M. as alleged by the prosecution has been examined. We are thus, eft with the sole testimony of PW 1 Mahabali Singh who is the informant of this case. He was the brother of Ram Bali who happened to be the son-in-law of deceased Chunni Singh. There is no dispute that the relations between him and some of the accused persons were strained and he was an interested and partisan witness. The learned Sessions Judge rightly observed that his evidence deserves to be given the same treatment as should be accorded to a partisan witness. We, however, find that the learned Sessions Judge fell into error in placing implicit reliance on his testimony brushing aside important circumstances which indicated that he had not seen the assailants and was not speaking the truth. We, however, find that the learned Sessions Judge fell into error in placing implicit reliance on his testimony brushing aside important circumstances which indicated that he had not seen the assailants and was not speaking the truth. This witness was no doubt present at the spot and had also received two lacerated wounds which appeared to have been caused by gun shots as the X-ray of his right thigh disclosed presence of two defused radio opaque shadows of metallic pellets, but we fell persuaded to believe that the occurrence had taken place in the late hours of the night or early hours of the morning when it was still! dark and that the assailants had suddenly fired from some distance causing injuries to the deceased and this witness, without this witness getting any opportunity to see and identify the culprits who escaped unnoticed and then these eight accused persons were falsely implicated on account of enmity or suspicion. Enmity is no doubt a double edged weapon which cuts both ways. If the accused could commit this crime on account of enmity with this witness and the deceased, it is equally true that if this occurence had taken place in the darkness of the night and the assailants had remained unidentified, this witness would naturally make surmises and would try to implicate his enmies on account of the same enmity. The decision of this case, therefore, depends on the question as to when this occurrence took place and whether this witness had opportunity to see the accused persons. 11. IT is in this context that the above inconsistency regarding the house of Shiv Narain Singh from which the assailants emerged before starting the assault gains importance. In our opinion the criticism launched by the learned sessions Judge against the Investigating Officer regarding changing the place of occurrence was altogether unwarranted and we have no reason to think that the Investigating Officer had deliberately changed the place of occurrence with a view to help the accused persons. IT is note-worthy that blood have been recovered from the spot near the well and there was no reason why the Investigating Officer would have changed the place of occurrence. The site plan is prepared at the instance of the informant or other witnesses present at the time of inspection of spot. IT is note-worthy that blood have been recovered from the spot near the well and there was no reason why the Investigating Officer would have changed the place of occurrence. The site plan is prepared at the instance of the informant or other witnesses present at the time of inspection of spot. In the site plan it has been shown that the accused persons emerged out from the house of Shiv Narain Singh which lies to the east of the house of Raghuvir and it does not show that they emerged out from the other house of Shiv Narain Singh lying to the north-east which has been described as "Makan Bara of Shiv Narain Singh" in the site plan. The statement of Vijai Karan Singh also shows that the accused persons had emerged out from the house lying to the east of Raghuvir's house as shown in the site plan and that there was open piece of land of Shiv Narain Singh lying to the north of the house of Bhikhua and that there were no constructions on that land at the time of the occurrence. Perhaps it was for this reason that the said house of Shiv Narain Singh lying to the north of the house of Bhikhua has been described as 'Makan an Bara' in the site plan. PW 1 Mahabali Singh, however, categorically stated that the accused had emerged out from that house of Shiv Narain Singh which lies to the north of the house of Bhikhua and Guthua. This was no good ground for holding that the Investigating Officer had deliberately changed the place of occurrence with a view to help the accused. On the other hand we are persuaded to believe that the above discrepancy was on account of the fact that PW 1 Mahabali Singh had not actually seen the assailants on account of darkness and consequenly he did not know from where they had come. When the Investigating Officer came to the spot he pointed out to the house of Shiv Narain Singh lying to the east of Raghuvir's house as the house from which the assailants had emerged out but when he was being examined he did not remember which house he had pointed out earlier and stated that the assailants emerged out from that house of Shiv Narain Singh which lay to the north of the house of Bhikhua and Guthua. This was a material discrepancy which appears to be on account of the fact that the occurrence had taken place in the darkness of the early hours of the morning so that Mahabali Singh had no opportunity to see as to who fired at him and the deceased and from where or from which house the assailants had come. IT is not disputed that the medical evidence is not inconsistent with the theory that the occurrence had taken place in the small hours of the morning when it was still dark on that morning. The post mortem report shows that the stomach of deceased was empty and that gas and some faecal matter was present in the small and large intestines. Even PW 1 does not say that the deceased had attended to the call of nature when this occurrence took place. Consequently it was more probable that this occurrence took place when the deceased Chunni Singh and injured Mahabali Singh were either going to attend to the call of nature or for some other work in the darkness of he early hours of the morning, when they were suddenly fired at by some one whom they could not identify on account of darkness. In this connection it is also significant to note that PW 1 Mahabali Singh categorically stated that all the gun shots had been fired from a distance of one foot. This is belied by medical evidence which rules out the possibility of the gun shots having been fired from a distance of less than 4' or 5'. As a matter of fact the gun shots appear to have been fired from some distance. IT was very probable that when the deceased and the injured were going in the darkness of the small hours of the morning some body fired at them so that he could not see and identify he assailants and then lodged the report implicating the accused persons on account of enmity or suspicion. In any case the statement of PW 1 Mahabali Singh does not inspire confidence and it was not possible to base a conviction on his sole testimony. In any case the statement of PW 1 Mahabali Singh does not inspire confidence and it was not possible to base a conviction on his sole testimony. The prosecution case cannot be said to have been proved beyond reasonable doubt and it was not possible to convict the appellants on the sole testimony of PW 1 Mahabali Singh whose evidence was not at all convincing and was also inconsistent with medical evidence. The learned Sessions Judge had certainly fallen into error in placing implicit reliance on his testimony and in making unwarranted observations against the conduct of the Investigating Officer regarding changing the place of occurrence. The case against the appellants was not free from doubt and they are entitled to be acquitted. 12. IN the result, the appeal is allowed. The conviction of the appellants and the sentences of life imprisonment imposed upon them are set aside and they are acquitted of all the offences with which they were charged. They are on bail. They need not surrender to their bail bonds which are cancelled and sureties discharged. Appeal allowed.