D. S. BAJPAI, J. Appellant, Hari Shanker has come up in appeal (Criminal Appeal No. 639 of 1982) against the judgment and order dated 11-8-1982 passed by the First Additional Sessions Judge, Gonda, convicting him under Section 302, I PC as also under Sections 394/397, IPC while appellant Ramanandey has filed his appeal (Criminal Appeal No. 177 of 1983) against the very said judg ment and order by which he has been found guilty under Stction 394, IPC and convicted for the same. Appellant, Hari Shanker has been awarded life imprisonment under Section 302, IPC and 7 years R. I. under Section 394, IPC. Both the sentences were to run concurrently. Appellant Ramanandey has been sentenc-d to 5 ysars R. I. under Section 394, IPC. He has, however, been acquitted of the charges under Sections 302/34, IPC. 2. The occurrence is said to have taken place in village Pasiyan Purwa, hamlet of Marghubpur within the Police Station Umbribegumgaj, tahsil Tarab-ganj in the district of Gonda at the house of PW 1 Jagannath which is situated towards the east in the abadi hamlet comprising of about 18 houses. The house did not contain any doors at the time of the occurrence. Jagannath had his ghari towards north of his house at a distance of 6-7 paces. Jagannath besides being a very small land-holder, had a petty shop selling grocery etc. The house of appellant, Hari Shanker is said to be at a distance of 150-175 yards from the house of Jagannath. In the night between 31st December, 1978 and 1st January, 1979 Ram Asrey, father of Jagannath, is said to have been sleeping in his ghari, while Jagannath was asleep in the tarwaha. A small kerosene dhibri was burning in the tarwaha. Jaganneths mother, Smt. Durga Devi and his sister, Smt. Surajpata, were said to be sleeping in the Kothari which stands towards west of the Angan and in that Kothari a dhibri was to have been burning. Jagannaths own wife was sleeping in a southern Kothari. At about midmight, Jagannath is said to have been awakened by the shouts of his mother, Smt. Durga Devi and on entering the house he found four hoodlums removing the ornaments from the persons of his mother and sister and he identified amongst these hoodlums Hari Shanker and Ramanandey. Hari Shanker was carrying a katta and Ramanandey a lathi. At about midmight, Jagannath is said to have been awakened by the shouts of his mother, Smt. Durga Devi and on entering the house he found four hoodlums removing the ornaments from the persons of his mother and sister and he identified amongst these hoodlums Hari Shanker and Ramanandey. Hari Shanker was carrying a katta and Ramanandey a lathi. The other two mis creants carried towards. It is said that on the alarm raised by Jagannath and the members of his family several persons collected at the place of occurrence. Amcngt them were Punai, Jaipatter, Jang Bahadur, etc. Punai and Jaipatter were flashing torches. On this the miscreants came out of the house and they were surrounded by Jagannath and Jang Bahadur etc. Whereupon Hari Shanker fired upon Ram Asrey, father of Jagannath, from the katta and Ram Asrey fell dead there instantaneously. It is said that Ramanandey gave a lathi blow to Jagannath whereafter they ran away with the booty. It is further said that before Jagannath could proceed to lodge the F. I. R. appellant Hari Shanker reached the house of the deceased and made an inquiry as to whom Jagannath would name in the F. I. R. whereupan Jagannath gave a spear blow to Hari Shanker. F. I. R. was lodged at police station Umribegumgani, which is 10 kms. from the village, on 1- 1-1979 at 8 a. m. by informant Jagannath (PW 1) and the Investigating Officer, Bharat Singh, immediately thereafter proceeded for the site of occurrence and reached there at about 10 a. m. The body of deceased, Ram Asrey was sent for post-mortem examination after preparing inquest report. Dr. S. K. Srivastaua (PW 5) conducted the post mortem examination after preparing inquest report. Dr. S. K. Srivastava (PW 5) conducted the post-mortem examination on 2-1-1979 at District Hospital Goda at 1. 30 p. m. and noted a lacerated wound (gun-shot wound) 8. 5 cms. X 6. 5 cms X bone deep over front side of rigut thigh, 23 cms. above knee, margins ragged and inverted. Blackening and tattooing was present. Under lying bone was ruptured completely. Femmoral artery and veins were ruptured at three places. 53 small round pellets and 30 pellets were recovered from the injury and 20 flat pllets were recovered from bone 33 under the said injury. above knee, margins ragged and inverted. Blackening and tattooing was present. Under lying bone was ruptured completely. Femmoral artery and veins were ruptured at three places. 53 small round pellets and 30 pellets were recovered from the injury and 20 flat pllets were recovered from bone 33 under the said injury. The cause of death was indicated by the Medical Officer to be due to shock and haemorrhage due to the said injury. The injury, as deposed by him, was sufficient in the ordinary course of nature to cause death. 3. Jagannath (PW 1), the informant, had suffered some injuries. He was sent to Primary Health Centre, Belsar, for examination of his injuries where he was examined by Dr. Ram Mohan (PW 7) on 1-1-1979 at 12. 10 p. m. (after noon ). The doctor found the following injuries on his person:- 1. Lacerated wound on the scalp. 2 cms. X 5 cms. X 0. 5 cm. X muscle deep, 16 cms. above the pinna of the left ear. 2. Traumatic swelling on the back of right elbow 4 cms. X 3 cms. in size. 3. Abrasion on the right feet 2 cms. X 1 cms. in size, 13 cms. from the tip of big toe besides complaining of pain in right forearm and right hand without any external injury. 4. The accused pleaded not guilty and stated in defence that they had been falsely implicated due to enmity. The comlainant, they said, lived in the same village hardly 150 yards away from their houses. 5. Besides examining Jagannath (PW 1), Punnai (PW 2) and Surajpatra (PW 3) as eye-witnesses, the persecution also examined Medical Officer, Dr. S. K. Srivastava, (PW 5) who performed the post-mortem examination Dr. P. K. Saxena (PW 6) the Jail Doctor, who examined appellant Hari Shanker at 1. 15 p. m. on 2-1-1979 and found one stab wound 3 cms. X 0. 5 cm. X muscle deep on the right upper hip which he stated to have been caused by some blunt weapon and appeared to be one and a half days old at the time of the examination, Dr. Ram Mohan (PW 7) who examined the injuries of Jagannath (PW 1) and the I. O. , Bharat Singh (PW 8 ). 6. X muscle deep on the right upper hip which he stated to have been caused by some blunt weapon and appeared to be one and a half days old at the time of the examination, Dr. Ram Mohan (PW 7) who examined the injuries of Jagannath (PW 1) and the I. O. , Bharat Singh (PW 8 ). 6. Deota Prasad (PW 1), who was Sarpanch, stated that Hari Shanker had filed a case against Ram Asrey in the Naya Panchayat (Hari Shanker v. Ram Asrey) the record of which was before him in the Court and the accused aho examined Sheo Pujan Lal Srivastava (DW 1), Cleark to Babu Vishwanath Prasad Pandey, Advocate, who testified that an application for bail on behalf of the appellant Hari Shanker was filed before the Sessions Judge, Gonda on 13-2-1979. 7. . We have heard the learned counsel for the appellant as also the learned Assistant Government Advocate and have perused the record. 8. The contention of the learned counsel for the appellants has been firstly, that it was highly improbable, rather impossible, that the two accused did not make any effort to conceal their identity when they lived in the same village at a short distance away from the house of the deceased. It is abso lutely clear from the testimony of the witnesses that the accused entered the house of the deceased and toak away ornaments from the persons of Smt. Durga Devi and Smt. Surajpata and that their faces were unconvered. There was light from the dhibri in the Kothari in which the two women were sleeping as also light from the dhibri under the tarwaha where Jagannath was sleeping, Story of two witnesses coming with torch light while the accused were escaping as also set up by the prosecution. Submission of the learned connsel for the appellants is not without force inasmuch as the two accused entering the house of a well-known neighbour to commit a heinous offence in the abadi is beyond comprehension. Submission of the learned connsel for the appellants is not without force inasmuch as the two accused entering the house of a well-known neighbour to commit a heinous offence in the abadi is beyond comprehension. Secondly, it has been contended that the eye witnesses sought to have been relied uppn are Jagannath (PW 1), the infor mant, who is the son of the deceased, Ram Asrey, Punnai (PW 2) who is said to have reached the door of the house of Ram Arsey with a torch light when the accused were escaping but he categorically denied having seen any "badmash" at the time when he reached the spot and on being confornted with this statement under Section 161, Cr. P. C. he denied having given any such statement, Smt. Surajpata (PW 3), own daughter of the deceased and sister of Jagannath, being an interested witness, conviction cannot be upheld without corroboration by any independent evidence, more so, when the occurrence took place in the abadi when it is alleged that Jaipattar, Jang Bahadur and others had come on the spot on alarm raised by Jagannath, the prosecu tion could have examined Jang Bahadur and Jaipattar who are residents of the same village and were not produced. No explanation whatsoever has come forward from the side of the prosecution to explain as to why these witnesses were not produced. Thirdly, it has been contended that Smt. Suraj pata and Smt. Dnrga Devi were deprived of their ornaments which they were putting on their bodies forcefully, but no injnry has been found on their bodies whatsoever. There is no independent witnesses to corroborate the eye-version account of PWs 1 and 3, more so when no reliance can be placed on the testimony of Punai (PW 2) as hereinabove indicated. We have no hesitation in holding that, in any case, it was but natural that they must have sustained certain abrasions, etc. on their necks, hands and legs while the orna ments were taken away from their persons by force. This also gives a distorted version of the incident. Fourthly, the contention made that Jagannath sustained four injuries from one Lathi blow is well-night impossible. on their necks, hands and legs while the orna ments were taken away from their persons by force. This also gives a distorted version of the incident. Fourthly, the contention made that Jagannath sustained four injuries from one Lathi blow is well-night impossible. The injury on the person of Jagannath from one lathi blow, as alleged in the F. I. R. is not borne out from the injury repert which indicates a lacerated would on the scalp which lathi blow was given on the head. The abrasion stated to have been as injury No. 5 and traumatic swelling on the back of right elbow could not be caused by it. Though there appears to be some force in this contention, but we cannot rule out the possibility that while Jagannath received the lathi blow on his scalp, he might have fallen down on the ground and sustained traumatic swelling and abrasion on the right foot. Another important aspect which has been brought out by the evidence of Jagannath that before he could proceed to the police station, it was at about 5 a. m. that appellant Hari Shanker came to the residence of the deceased and asked Jagannath, the informant, as to where he was preparing to go and whom wourtm he name in the F. I. R. would negative the prosecution theory since Hari Shanker being a neighour of the deceased whom Jagannath, Smt. Surajpata, Punai and others knew so well and who had been identified in the two dhibri lights as also the torches, would never have the audacity to reach the house of the person whom he had killed, attacked his son, Jagannath, with a lathi blow and snatched ornaments from the persons of the informants sister and mother which is very significant and is indicative of the fact that, in fact, the light from the two kerosene dhibris was insufficient and the torch lights, at all, were available while the accused were running. We hold that the light was not sufficient for identifying the accused. We hold that the light was not sufficient for identifying the accused. Another factor that there was enmity between the accused Hari Shanker and the deceased is also borne out from the evidence of PW Deota Prasad who stated that a case was before him when he was Sarpanch of the Nyaya Panchayat as also from the testimony of DW 1 Sheo Pujan Lal wherein he stated that an application for bail was filed on behalf of Hari Shanker in the Court of Session and this case was filed at the instance of the deceased. The F. I. R. is also said to have been lodged next day, i. e. on 1-1-1979 at 8 a. m. when the occurrence is said have taken place at about 12 the previous midnight, The contention is that the F. I. R. was, in fact, lodged after the Investigating Officer, on receiving the news of the crime, reached the spot and thereafter the F. I. R. was lodged after modulating the facts which is supported by the post-mortem report in which stomach was said to have contained semi-fluid 350 gms. digested food, while small intestines showed digested food and large intestines faecal matter. These contents, it is asserted and rightly so, belie the time of death of Ram Asrey as 12 midnight. The difence suggestion that it was possibly in the early hours of the winter night that the occurrence took place, that the hoodlums, who had come to loot the ornaments on the alarm raised by the deceased, attacked him in the dim light without they being identified, that the appellants were not, in fact, the assailants and some rank outsiders and that the F. I. R. is thus ante-dated has force and we hold accordingly. 9. The prosecution, we are constrained to hold, has failed to adduce evidence which may inspire confidence so as to sustain the conviction of the accused. 10. In the result, Criminal Appeal No. 639 of 1982 filed by Hari Shanker holding him guilty under Section 302, IPC as also under Sections 394/397, IPC and sentencing him to imprisonment for life and 7 years R. I. respectively, is allowed. The conviction and sentence of appellant Hari Shanker are set aside. 10. In the result, Criminal Appeal No. 639 of 1982 filed by Hari Shanker holding him guilty under Section 302, IPC as also under Sections 394/397, IPC and sentencing him to imprisonment for life and 7 years R. I. respectively, is allowed. The conviction and sentence of appellant Hari Shanker are set aside. Jail Appeal No. 177 of 1983 of appellant Ramanandey holding him guilty under Section 394, IPC and sentencing him to 5 years R. I. is also allowed and his conviction and sentence are set aside. 11. Appellant Hari Shanker is on bail. His bail bonds stand discharged. Appellant Ramanandey, who is in jail and serving his sentence, shall be released forthwith unless wanted in any other case. Appeal allowed. .