O. P. MEHROTRA, J. ( 1 ) APPELLANT Lakhan Singh and Subedar Singh have filed this appeal against the order dated 5/11/1977 passed by Additional Sessions Judge (Non Metropolitan Area), Kanpur convicting them for committing the murder of Durga Prasad on 7. 1. 76 after sunset in village Madda Ka Purwa, hamlet of village Jithrauli, Police Station Gajner, District Kanpur. Appellant Lakhan Singh, who is said to have actually fired the fatal gun-shot, has been convicted under section 302 I. P. C. (simpliciter) while his uncle Subedar Singh, at whose instigation the shot was fired, has been convicted under sections 302/34 I. P. C. However, both of them have been sentenced to imprisonment for life. ( 2 ) THE first information of this case was lodged by Munna Lal (PW-l), who was elder brother of deceased Durga Prasad, on the same night viz. 7-1-76 at 8. 30 p. m. at Police Station Gajner, which was at it distance of about 11/2 miles from the spot. According to the prosecution case the relations between informant Munna Lal and his family on the one hand and accused Subedar Singh on the other were strained on account of the Flowing of Nabdan from the house of the accused on the Rasta in front of the house of Munna Lal. Water of this Nabdan was apt to flow towards the door of Munna Lals house but he prevented the flow of water towards his door by making a Bandha. This resulted into quarrels between the two families because on account of the Bandha erected by Munna Lal, water accumulated in front of the house of appellant Subedar Singh. ( 3 ) PROSECUTION story is that on 7/1/1976 a little after sun-set informant Munna Lal (PW-1) was in his shop, while his younger brother Durga Prasad (deceased) was in his Chapter. Jagdeo Singh and Ram Pal Singh came to the shop of Munna Lal for purchasing Bins. At that time appellant Subedar Singh happened to pass through the passage in front of the shop. Jagdeo Singh coughed. Appellant Subedar Singh felt that he was being scoffed. He entered into an altercation with deceased Durga Prasad and abused him and stated that he was ridiculing him. Munna Lal intervened and said that they were poor people and were not ridiculing him and that Jagdeo Singh actually coughed and it should not be taken as scoffing. Jagdeo Singh coughed. Appellant Subedar Singh felt that he was being scoffed. He entered into an altercation with deceased Durga Prasad and abused him and stated that he was ridiculing him. Munna Lal intervened and said that they were poor people and were not ridiculing him and that Jagdeo Singh actually coughed and it should not be taken as scoffing. However, appellant Subedar Singh was not prepared to listen anything and he continued hurling abuses and challenged informant Munna Lal and deceased Durga Prasad as to how they could stop flow of water of the Nabdan and insisted that the same would flow at the door of Munna Lal. On hearing this altercation several persons including Nankoo (PW. 2), Poney Lal (PW-3) and Bhoora (PW-4) arrived there. Appellant Subedar Singh increased hurling abuses and he advanced to remove the Bandha whereupon Munna Lal told him that the Bandha would not be removed at any cost. Thereupon, appellant Subedar Singh instigated his nephew appellant Lakhan Singh that he should bring out his gun and kill. At this appellant Lakhan Singh went to the roof of the house of Subedar Singh took out his licenced gun and from the corner of the roof of the house he fired a gunshot which hit Durga Prasad who was under his Chhapper. Durga Prasad received gun shot injuries and died at the spot. ( 4 ) INFORMANT. Munna Lal got written report (Ex. Ka. 1) prepared by Sheo Baran Singh and then lodged the same at police station Gajner at 8. 30 pm. A case under sections 302/34 I. P. C. was registered against the two appellants and the investigation was taken up by Station Officer Om Prakash Dixit (PW 7 ). He sent two constable8 to the spot and recorded the statement of informant Munna Lal and then left for the spot at about 10 p. m. As there was no arrangement for light inquest could not be held at that time. He recorded statements of witnesses. On the next morning at 7. 30 a. m. he held the inquest and sent the dead body for post-mortem examination. He recovered blood from the spot and also recovered three pellets. He inspected the spot and prepared site-plan (Ex. Ka-8) He searched for the accused-persons but they were not found. Both the accused surrendered in court on 16/1/1976. On the next morning at 7. 30 a. m. he held the inquest and sent the dead body for post-mortem examination. He recovered blood from the spot and also recovered three pellets. He inspected the spot and prepared site-plan (Ex. Ka-8) He searched for the accused-persons but they were not found. Both the accused surrendered in court on 16/1/1976. After completing investigation, he submitted charge- sheet against both of them on 20/1/1976. ( 5 ) THE post-mortem examination on the dead body of Durga Prasad was conducted by Dr. H. N. Bahadur (PW-6) on 9. 1. 76 at 2 p. m. He estimated the age of the deceased as 17 years and probable time since death as two days. Rigor mortis had passed of from upper extremities and was passing from lower extremities. Abdomen was distended. The following ante-mortem injuries were found: i. Nine gun-shot wounds in an area of 23 cm x 17 cm. on front of abdomen from xephoid process to umbilicus and right anterior axillary line to lip of 8th costal cartilage on left side cm x cm. all entering abdominal cavity. Wounds of entry, Margins blackened lacerated and inverted. ii. Six lacerated wounds 1 cm x 1 cm with everted margins. Circular wounds of exit in an area of 20 cm x 16 cm on back in lumber region. The doctor felt two gun-shots in the left. Sacro-spinal muscle and removed the same. He further felt one gun-shot in sub cutaneous tissues on right lumber region and took out the same. On internal examination, the doctor found both the chambers of heart empty. Abdominal walls were torn under the external injuries. Cavity of peritoneum contained about two points clotted and fluid blood, faecal matters and food particles. Stomach contained two perforations on front and two per formations on back surface cm x cm on each (through and through ). There was about 8 ozs. of undigested food matter in the stomach. There were multiple perforations and haematoma in mesentery. Large intestines were half full. Right lobe of liver showed lacerated wound 3 cm x 1 cm. through and through. There was haematoma present in right peunaephric fat. In the opinion of the doctor, death was due to shock and haemorrhage on account of external injuries (vide postmortem report ex. Ka. 2 ). ( 6 ) IN support of its case the prosecution examined four eye witnesses. through and through. There was haematoma present in right peunaephric fat. In the opinion of the doctor, death was due to shock and haemorrhage on account of external injuries (vide postmortem report ex. Ka. 2 ). ( 6 ) IN support of its case the prosecution examined four eye witnesses. P. W. 1 Munna Lal is the elder brother of the deceased Durga Prasad and is the informant of this case. P. W. 2 Nankoo P. W. 3 Poney Lal, and P. W. 4 Bhoora are the persons, who are said to have arrived at the spot on hearing the alarm. They have generally supported the prosecution case P. W. 6 Dr. H. N. Bahadur conducted post mortem examination. P. W. 5 Constable Bheem Singh and P. W. 8 Head Constable Nawab Singh are formal police witnesses. Lastly P. W. 1 Station Officer Om Prakash Srivastava is Investigating Officer of this case. ( 7 ) BOTH the accused pleaded not guilty. They denied the prosecution allegations and stated that they had been falsely implicated on account of enmity and party-bandi. Their suggestion was that Durga Prasad might have been shot by some one in the darkness of the night and they had been falsely implicated at the instance of their enemies Jai Karan Singh, Sheo Baran Singh and Jagdeo Singh. However, they did not adduce any oral evidence in defence. ( 8 ) THE learned Sessions Judge believed the prosecution case. He did not place reliance upon the testimony of Bhoora (P. W. 3) but on the basis of the testimony of the remaining witnesses, he found both the accused persons guilty of committing this murder. He held that the time of occurrence was twilight after sun-set and that the medical evidence as not inconsistent with the prosecution story. Accordingly, he convicted and sentenced the two appellants as mentioned above. ( 9 ) LEARNED counsel for the appellants contended that the medical evidence in this case was not consistent with eye-witness testimony and that the witnesses were neither independent nor reliable and hence it was not possible to hold on the basis of their testimony that the occurrence had taken place at the time and in the manner alleged by the prosecution. ( 10 ) HAVING heard learned counsel for the appellants and the learned Government Advocate and having carefully scrutinised the entire evidence on the record, we find sufficient force in the above contentions. In the first information report, the exact time of the occurrence was not mentioned but it was mentioned that the occurrence took place after the sun set. The first information report does not contain any recital as to in what light the witnesses saw the occurrence and identified the assailants. The case developed during the course of oral evidence was that though the occurrence had taken place after sun-set, yet it was twilight time and the witnesses could have easily seen the occurrence. The first information report does not contain any recital that it was twilight time. In the absence of any such recital it appears that this occurrence had taken place after sun-set in the early hours of the night. ( 11 ) THE greatest weakness in the prosecution case is that the medical evidence is inconsistent with the eye-witness testimony. The prosecution has come with a definite case that the fatal shot was fired by appellant Lakhan Singh from the roof of Subedar Singhs house and that the shot bit Durga Prasad, who was on the Chabutra under the Chhappar which was in front of the informants shop. The place from where the fatal shot was fired was shown to the Investigating officer by the witnesses and the distance of this place upto the place where the shot hit Durga Prasad and where his dead body was found, as measured by the Investigating Officer and he has given this distance as 18 steps, i. e. about 45 feet. This means that the shot alleged to have been fired by appellant Lakhan Singh was fired from a distance of 45 feet. The post-mortem report and the statement of Dr. B. N. Bhargava are inconsistent with this theory. A perusal of the post-mortem report shows that the deceased was hit by one shot which entered from the front side (Abdomen) and came out from the back. The post-mortem report and the statement of Dr. B. N. Bhargava are inconsistent with this theory. A perusal of the post-mortem report shows that the deceased was hit by one shot which entered from the front side (Abdomen) and came out from the back. Injury No. 1 was the wound of entry which comprised of 9 gun-shot wounds in an area of 23 cms x 17 cms (about 9 x 7) on front of abdomen from xephoid process to umbilicus and right anterior axillary line to lip of 8th costal cartilage on left side cm x cm all entering abdominal cavity. It further shows that the margins were blackened. The blackening of the margins and the dispersal of the shots indicate that this shot could not have been fired from a distance of 45 feet and must have been fired from much shorter distance. In his cross-examination the doctor stated that blackening is caused by gun powder and it is usual in cases of firing from 3 or 4 feet and at the most from a distance of 7 or 8 feet. The learned Sessions Judge has observed that blackening may be caused by had quality of powder even in cases of firing from a long distance. Consequently he held that the medical evidence was not inconsistent with the prosecution story. The above observation made by the learned Sessions Judge does not appear to be well founded and has not been supported by any authority. The doctor nowhere stated that this injury with blackening around the wound could be caused by firing from a distance of about, 45 feet. The prosecution did not examine any ballistic expert either. As such we are not prepared to believe that this Injury could have been received in the manner alleged by the prosecution, according to which the shot had been fired from a distance of about 18 steps or 45 feet. The authorities on medical jurisprudence show that blackening around the wounds can be found only when the shot is fired from a short distance. No medical authority has been shown to us in support of the contention that the blackening could be caused by had quality of powder even in cases where firing is done from a distance of about 4s feet or so. No medical authority has been shown to us in support of the contention that the blackening could be caused by had quality of powder even in cases where firing is done from a distance of about 4s feet or so. Moreover, if the gun-shot had been fired from this distance, it was likely that the dispersal of the pellets would have been much larger than what was found in the present case. Keeping in view the dispersal of the pellets in an area of 9 x 7 and keeping in view the fact that the margins of the wounds were blackened, it appears that the fatal gun shot might have been fired from a distance of 5 to 8 feet and not from a greater distance. This conspicuous discrepancy between the medical evidence and the eye witness testimony has not been explained and this clearly shows that the witnesses had not seen the occurrence and were merely playing upon their Imagination. ( 12 ) IT is in this context that the recital in the first information report that the occurrence took place after sun set becomes all the more material. It may be that in the darkness of the early hours of the night some unidentified person fired a shot at Durga Prasad and fled away. It was a case of hit and run and hence no body could see and identify the assailant. Admittedly the relations between the parties were strained on account of flow or water from the Nabdan of the appellants. The informant naturally suspected the appellants and hence he lodged first information report against them due to enmity or suspicion. ( 13 ) IT is noteworthy that according to the prosecution case an altercation was going on between appellant Subedar Singh who was insisting that Bandha should be removed and Informant Munna Lal was not prepared to remove the opening of Bandha. The deceased was a young lad of 17 years and sitting on the Chabutra under the Chhappar. If it was a fact that appellant Lakhan Singh brought the gun at the instigation of Subedar Singh he was expected to have fired at informant Munna Lal who was near the Bandha and ordinarily it was not probable that the, shot would have hit Durga Prasad who was sitting under the Chhappar. If it was a fact that appellant Lakhan Singh brought the gun at the instigation of Subedar Singh he was expected to have fired at informant Munna Lal who was near the Bandha and ordinarily it was not probable that the, shot would have hit Durga Prasad who was sitting under the Chhappar. ( 14 ) WE find that the witnesses are not such on which implicit reliance could be placed. Informant Munna Lal was admittedly on inimical terms with the appellant and if his brother had been shot by some unidentified person he would have naturally, suspected the appellants. P. W. 3 Pone Lal was his cousin brother. P. W. 2 Nanhkon resides at some distance from the spot towards east and there are three other houses In between. It is surprising that the persons residing around the, place where this occurrence took place have not been made witnesses but Instead persons who are either related or whose houses are at some distance are coming forward to give evidence. No reliance has been placed on the statement of P. W. 4 Bhoora by the learned lower court. As such it was not a case where we would Ignore medical evidence and to place Implicit reliance on the testimony of eye witnesses. In this connection we may also point out to a glaring discrepancy in the prosecution evidence. P. W. 3 Pone Lal categorically stated before the Sessions Judge that Lakhan Singh had gone to the roof of Subedars house through stair case with the gun in his hand. Before the Investigating Officer, however, he had stated that Lakhan Singh had brought the gun from the Atari (upper room of the house) of Subedars house. It is thus not clear as to whether the appellant Lakhan Singh had already a gun with him when he climbed stair case and went to the roof or whether he climbed the stair case empty-handed and then brought the gun from the Atari. This further shows that the witnesses had not actually seen the occurrence and were merely playing upon their imagination. ( 15 ) IT would thus appear that the prosecution evidence was neither reliable nor trustworthy and the same was also inconsistent with medical evidence. This further shows that the witnesses had not actually seen the occurrence and were merely playing upon their imagination. ( 15 ) IT would thus appear that the prosecution evidence was neither reliable nor trustworthy and the same was also inconsistent with medical evidence. The probability that this occurrence took place in the darkness of the early hours of the night and that some unidentified person fired at Durga Prasad and escaped cannot be ruled out. In any case it cannot be said with any amount of certainity that the occurrence took place at the time and in the manner alleged by the prosecution. The prosecution cannot be said to have proved its case beyond reasonable doubt. In the result, the appeal succeeds and is allowed. The conviction of the appellants and the sentence of life imprisonment awarded to them are set aside. They are acquitted of the charges lebelled against them. They are on bail. They need not surrender to their bail bonds, which are hereby cancelled and sureties discharged. .