JUDGMENT D.S. Bajpai, J. - Accused Atar Singh, Mohar Singh, Lai Singh, Ramesh and Jai Singh have come up in appeal before this Court against the judgment and order dated 21.3.1986 passed by the Special Judge, Budaun in Sessions Trial No. 345 of 1984 in which the accused Atar Singh, Mohar Singh, Lai Singh and Ramesh were convicted and sentenced to undergo two years' R.I. u/s 48 IPC. Atar Singh, Mohar Singh and Ramesh were further convicted and sentenced to capital punishment of being hanged by neck till they were dead u/s 302 read with Section 149 IPC for the murders of Shyampal and Jumman. Accused Lai Singh was convicted and sentenced to undergo capital punishment of being hanged by neck till he was dead u/s 302 IPC for the murder of Jumman and u/s 302 read with Section 149 IPC for the murder of Shyampal. Accused Jai Singh was convicted and sentenced to undergo one year's R.I. u/s 147 IPC and life imprisonment u/s 302 IPC read with Section 149 IPC and the sentences were directed to run concurrently. 2. Along with the appeal reference for confirmation of the death sentences has also come up before us. 3. It is stated that on the night of 7/8.8.1984 at about 1.30 a.m., the two deceased Shyampal and Jumman were sleeping along with some other persons in front of the chaupal of Soran when the accused attacked Shyampal and thereafter Jumman was also attacked. The accused Jai Singh was alleged to have been armed with lathi while accused Atar Singh, Mohar Singh and Ramesh were said to have been armed with spears. Accused Lai Singh was in possession of a country made pistol (katta) and he is said to have used this fire arm in the alleged murder. 4. The first information report about the incident is stated to have been lodged by Shyampal himself at the police station Qadar Chowk, district Budaun at about 9.30 a.m. on the following morning i.e. the morning of 8th August, 1984. Thereafter Shyampal was examined by the Medical Officer In-charge of Primary Health Centre, Qadar Chowk at about 11.30 a.m. who gave an injury report which is on record. This injury report, amongst others, states two fire arm injuries one at serial No. 3 as fire-arm wound of entry 8 cm. x 5 cm. Thereafter Shyampal was examined by the Medical Officer In-charge of Primary Health Centre, Qadar Chowk at about 11.30 a.m. who gave an injury report which is on record. This injury report, amongst others, states two fire arm injuries one at serial No. 3 as fire-arm wound of entry 8 cm. x 5 cm. x cavity deep on the outer aspect right upper arm, surrounded by blackening and tattooing and the other at item No. 4 indicating wound of exit 1.5 cm. x 1.0 cm. x cavity deep on the back aspect of the right upper arm. Thereafter on the advice of the Medical Officer Io-charge of the Primary Health Centre, Qadar Chowk, Shyampal, who had examined him, was referred to the District Hospital, Budaun for specialised treatment. The other deceased Jumman is stated to have died instantaneously on receiving a fire-arm shot from the country made pistol used by Lai Singh. The narration of the events as stated in the first information report given by Shyampal is precise. It indicates facts about long standing enmity with the accused and states that at about 1.00 a.m. on the fateful night when Shyampal was sleeping on the chaupal of Soran on a 'Charpai' alongwith Irman son of Bhopal, Jalim son of Maiku and Jumman son of Sundar, the accused are stated to have come and accosted Shyampal saying that he should better come to senses and in the meantime Mohar Singh, Ramesh and Atar Singh started to attack him with spears and on his making a noise, Jumman who was sleeping by the side of his cot on another cot got up and he started challenging all of them, when Lai Singh shot Jumman with his country made pistol, which he was holding in his hand and he instantaneously fell on the spot after being injured. Thereafter, it is stated that another shot was fired by Lai Singh on Shyampal saying that he would kill him and would not let him survive. The first information report further states that Jai Singh was standing with a lathi and the persons sleeping nearby woke up hearing the noise and challenged the accused persons. Then the accused persons after the 'marpit' ran away on the eastern side of the village towards 'Nagla'. Jumman, it is stated, died arid his dead body was placed in the chaupal in a hut nearby belonging to him. Then the accused persons after the 'marpit' ran away on the eastern side of the village towards 'Nagla'. Jumman, it is stated, died arid his dead body was placed in the chaupal in a hut nearby belonging to him. It is also stated that Shyampal during the course of the 'marpit' snatched a 'bhala' from the hands of Ramesh. The first information report is said to have been dictated by Shyampal to one Sheo Singh, PW 3 somewhere near the police station Qadar Chowk and thereafter a chick was prepared by Ram Vir Singh PW 6, Head Moharrir of the police station concerned. On the report being lodged, the investigation was taken over by the Qadar Chowk police and the accused were put for trial. 5. Subsequently Shyampal after being admitted to the Hospital, expired on the night of 10th August, 1984 at about 11.15 p.m. The post mortem on the body of deceased Jumman was conducted on 9.8.1984 at 1.00 P.M. and on the body of Sbyam Pal on 11.8.1984 at about 1.00 P.M. The Medical Officers conducting the post mortems were Dr. N.K. Maheshwari, PW 5 and Dr. S.C. Nagauriya, PW 4 respectively. 6. The principal contention of the learned Counsel for the Appellants isthat in view of the injuries received by Shyampal which is borne out from the testimony of the Medical Officer, who conducted his medical examination at the Primary Health Centre, Qadar Chowk, i.e. Dr. A.K. Agarwal, there cannot be any doubt that Shyampal was not in a position to speak for the last atleast five hours before his medical examination at 11.30 a.m. on 8.8.1984 and that would lead us to the conclusion that in no way Shyampal could speak and lodge the first information report at the police station Qadar Chowk on 8.8.1984 at 9.30 A.M. when he is said to have dictated the first information report himself to the scribe which was subsequently entered as a first information report on which investigation started. The testimony of Dr. A.K. Agarwal, PW 9 has been examined by us in detail and we are not in a position to find out any discrepancy in the testimony of the Doctor whose evidence is unassailed. The testimony of Dr. A.K. Agarwal, PW 9 has been examined by us in detail and we are not in a position to find out any discrepancy in the testimony of the Doctor whose evidence is unassailed. The learned Government Advocate appearing for the State has not been in a position to indicate to us by contradictions in the said testimony except trying to suggest that five hours before his admission, he could not speak, but subsequently he might have been in a position to speak. This, however, is not apparent from the testimony and is also not apparent from the medical report as also from the injury report of Shyampal. Since it has been indicated everywhere that his condition, when he was examined, was bad and that his condition was expected to deteriorate further which might result in obstruction in smooth breathing, fall of blood pressure further, although the blood pressure itself was not recordable at the time when, he was first examined, his general condition was found to be very low and his pulse rate was very weak. This has been categorically stated by Dr. A.K. Agarwal in his testimony when he states: Report Ext. Ka-1, dikhai gai to Doctor Sahib ne kaha ki yeh sambhav nahi hai ki yeh report muaainey ke panch ghantey pahile tak bol sakta ho. He has further stated that the patient was in a state of acute shock and that the same condition must have been for the last five to six hours and that his lungs had been punctured and he was not in a position to breathe properly. The scribe has, on the other hand, stated that Shyampal wanted a piece of paper from him and when he noted down the FIR he was lying on the bullock cart. His body was covered with his 'rajai', and only his face was open and he had dictated the report in that condition. The testimony of the scribe, under the circumstances, is unworthy of reliance and we discard the same. We have no hesitation in holding that in fact the condition of Shyampal was so serious that, as stated by the Medical Officer, he possibly could not have been in a position to speak at 9.30 a.m. when the report is said to have been dictated by him verbally and taken down by the scribe. We have no hesitation in holding that in fact the condition of Shyampal was so serious that, as stated by the Medical Officer, he possibly could not have been in a position to speak at 9.30 a.m. when the report is said to have been dictated by him verbally and taken down by the scribe. We, accordingly, hold that the report could not be dictated by Shyampal and was not lodged by him. In this view of the matter, the submission of the learned Counsel for the Appellants that possibly the first information report was a narration of facts given by different persons nearby or by some other persons of the locality giving a wrong picture of the incident and cannot be relied upon. 7. Even though after rejecting the first information report, it is not necessary for us to consider other aspects of the matter in detail but it will be partinent to point out that the second submission of the learned Counsel for the Appellants to the effect that the medical evidence was at variance with the prosecution story and that it had not been established that Jumman was, in fact, shot by a country made pistol and that some fire arm injury was also inflicted on Shyampal by Lai Singh, is also worthwile to examine. We have gone through the medical opinionof the Medical Officers examined in this case and in particular Dr. A.K. Agarwal, Dr. S.C. Nagauriya and Dr. N.K. Maheshwari, P Ws 9, 4 and 5 respectively. A perusal of the post mortem report on the dead body of Jumman, which is on record as tixt. Ka-3 at the very outset points under the heading of ante mortem injuries that "no injury of fire arm present over body as mentioned by police in the first information report.'' The post mortem was conducted by Dr. N.K. Maheshwari, PW 5 and he has stated in his cross-examination that: Mritak ke sharir per koi fire arm chot nahi thi. We are satisfied that the testimony of the Medical Officer does not suffer from any infirmity and the said testimony along with the post mortem report clearly indicates that there was, in fact, no fire arm injury on the person of Jumman and we hold that no fire arm injury was caused to Jumman. 8. We are satisfied that the testimony of the Medical Officer does not suffer from any infirmity and the said testimony along with the post mortem report clearly indicates that there was, in fact, no fire arm injury on the person of Jumman and we hold that no fire arm injury was caused to Jumman. 8. Coming to the injury on the body of Shyampal, it is pertinent to point out that the injury report of the Medical Officer, Incharge, Primary Health Centre, indicates at item No. 3 as, Firearm wound of entry 8.0 cm. x 5.0 cm. x cavity deep on the outer aspect, rt. upper arm surrounded by blackening and tattooing and at item No. 4-firearm wound of exist 1.5 cm. x 1.0 cm. x cavity deep on the back aspect rt. upper arm. 9. Learned Counsel for the Appellants contended that there was no corresponding entry found on the body of Shyampal at the time of his post mortem which was held on 11.8.1984 at 1.00 p.m. The learned Government Advocate made strenuous efforts to suggest that the said bullet wound was on the body but might have been cured during the course of treatment and faintly made an endeavour to point out that ante mortem injury No. 1, a punctured wound 3 cm. x 0.5 cm. on right middle fore arm at back with abrasion on an area of 6 cm x 5 cm. wound healing with pus formation, would be the same fire arm injury as indicated in injuries Nos. 3 and 4 in the injury report prepared at the Primary Health Centre, Qadar Chowk, Ext. Ka-16. Learned Government Advocate, has, however, lost sight of the fact that the injuries at item Nos. 3 and 4 in the injury report were on the outer and back aspect respectively of the right upper arm and by any treatment the said injuries could not be cured and in any case they could not shift their locations from the u per arm to the middle fore-arm. The contention is devoid of force and is rejected. 10. 3 and 4 in the injury report were on the outer and back aspect respectively of the right upper arm and by any treatment the said injuries could not be cured and in any case they could not shift their locations from the u per arm to the middle fore-arm. The contention is devoid of force and is rejected. 10. We also find force in the third submission of the Appellant's counsel that the medical evidence is in conflict with the oral evidence when the two alleged eye witnesses, Pati Ram PW 1 and Jalim Singh, PW 2, stated that the injuries were caused to Jumman by fire-arm and also caused to Shyampal by the said fire arm in the fire by Lai Singh. Besides other contradictions in the statements of the two witnesses, it has been contended by the learned Counsel for the Appellants that the two alleged witnesses were highly interested witnesses and they being related to each other as uncle and nephew and in view of the fact that Pati Ram, brother of Urman had appeared as a witness in the murder of the brother of Shyampal and Jalim Singh being uncle of Pati Ram, they were highly interested and partisan witnesses and we have no difficulty in holding that they were not independent witnesses and no reliance could be placed on their solitary testimony and that their evidence was at variance with the medical evidence on record. The learned Sessions Judge erred in relying on oral testimony of these partisan witnesses without assigning any cogent reason for rejecting the medical evidence. 11. It has next been contended by the learned Counsel for the Appellants that August 7/8, 1984 being the 12th day of the bright moon fortnight, the moon set on that nignt at about 1.15 a.m. and the occurrence being at about 1.30 a.m. on the said night, there was possibly no light and it was not possible for the witnesses and for that purpose for any person, to recognise the assailants i. e. the accused and as such the FIR was a fiction of imagination. Even assuming that the time of 1.30 a.m. is not a correct time of occurrence and it might have varied by 30 or 45 minutes on either side, the contention of the learned Counsel that before the moonset, it goes down and it was not possible in that fading light to recognise the accused more so when the witnesses were fast asleep and the incident took place in a flash of the moment is not devoid of force. We have verified that time of setting of the moon on the particular day from the calendar available in the court and find that the submission is of consequence. No doubt an effort has been made subsequently, possibly on coming to realise falsity of the light theory of moonlight propounded in the first information report when the prosecution subsequently tried to introduce the story that two torches were available and that these torches were a supplementary source of light to recognise the accused. The mention of these torches in the first information report is missing and in any case the story of torch-light subsequently introduced into the testimony of PWs 1 and 2 is in conflict with each other and appears to be a vain effort to make an improvement to fill up the lacuna of the prosecution case. 12. It is also note-worthy that the two witnesses on whose testimony reliance has been placed, namely, Pati Ram and Jalim Singh further stated in their cross-examination that they were never examined by the Investigating Officer u/s 161, Code of Criminal Procedure and the statement attributed to them was in any case not attributable to them. 13. We are as such of the opinion that the prosecution has miserably failed to prove the prosecution story- and the appeal is liable to succeed. We, accordingly, set aside the conviction and sentences awarded to the accused and allow Criminal Appeal No. 1118 of 1986. The reference made by the learned Special Judge awarding death sentences to accused Atar Singh, Mohar Singh, Ramesh and Lai Singh is, hereby, rejected. Accused Jai Singh is on bail and he need not surrender. His surety bonds stand discharged. The four accused, namely, Atar Singh, Mohar Singh, Lai Singh and Ramesh are in jail and they shall be forthwith released from jail unless wanted in connection with some other offence.