UMESH CHANDRA, J. This appeal on behalf of State of Uttar Pradesh is directed against an order of acquittal, dated 20-5- 1977, passed by I Additional Sessions Judge, Mathura, in, Criminal Sessions Trial No. 286 of 1975, holding that on consideration of the entire evidence, circumstances, improbabilities and infirmities it is established that the incident did not take place in the manner as alleged by the prosecution and finding that opposite-parties Ismail son of Haji Manga, Ahmed son of Mamman, Yusuf son of Husain Baksh, Jamil son of Ahmad, Muddi aliat Hakirauddin son of Haji Manga and Kallu son of Ratan Lal have not committed the offence punishable under Section 302/307, I. P. C. read with Section 149, I. P. C. The learnsd Additional Sessions Judge further found that the offence under Section 147, I. P. 0. and Section 48, I. P. C was established against Kallu, Ismail, Ahmed, Yusuf, Jamil and Muddi alia; Hakimuddu. Aggrieved the present appeal has been filed by the State of Uttar Pradesh. 2. On 26-3-1975 a Truck Operators Union was formed in Kosi. Truck owners and commission agents were its members. This union was formed be cause the truck owners and commission agents suspected that some businessmen of Kosi were indulging in smugging goods Now the businessmen of Kosi who were indulfiing in smuggling began to feel difficulty. Therefore, they threatened the members of this union Consequently the members approached the Truck Operators Union, Mathura, for help. At this, the Union Mathura opened its Branch Office of Kosi on 10-5-1975. According to prosecution this enraged those businessmen and on 10-5-1975 they came to the office of the union and at the shop of complainant Hansh Chandra P. W. 2. and threatened them. 3. On 10-5-1975 at about 8 or 8. 33 p. m. Harish Chandra P. W. 3 came to know that these businessmen were taking No. 2 goods from Koii to Delhi in two different trucks Harish Chandra collected other members of the union and with a view to inform the sales tax check post on U. P.-Haryana border, they proceeded from the Unions office at about 10,45 p. m in two trucks. Com plainant Harish Chandra, Shobhraj (deceased) and Ghanshyam were in truck No. DLL 7840 driven by Narottam drive, Togendra Singh P. W. 4, Jagdish Prasad P. W. 5, N-nak Chand (deceased), Rahman, Yunus and Peetam Singh were in another truck No. UPU 5887 driven by Bhagwan Das, Truck No. DLL 7840 was &oing ahead and it was being followed by truck No. UPU 5887. They were on Kosi-Delhi Road, The sales tax check post was about five miles away from Kosi towards Delhi. On the way Truck No HRG 5027 was over taken. This truck was loaded with hundred bags of Arhar Daal of firm Nathi-mal Gaya Prasad of Kosi. The prosecution alleges that when truck No. DLL 7840 was overtaking the loaded truck the complainant flashed his torch and saw that the accused were sitting on the tool box of truck No. HRG 5027 and were armed with revolvers and guns. Just when the complainant overtook the loaded truck, he heard two gun shot fires. At a distance of about 50 yards another truck No. MPO 2857 had blocked the road by stationing it obliquely on the road. The result was that botl the trucks of the com plainants side stopped an 1 the loaded truck dashed against the complainants truck Immediately thereafter there was firing towards the trucks of the com plainants side from truck No. HRG 5027. Shobhraj and Nanak Chand did on the spot while Jogendra Singh P. W. 2, Rahman and Yunus received guns shot injuries. Nanak Chand died in the truck because of the injuries received by him. Someone shouted from truck No. HRG 5027 which was damaged asking Kallu to back his truck as the truck had gone out of order. The complainant and other members who had concealed themselve in the Daal flashed their torches and say the five accused sitting on the tool box of loaded truck No. HRG 5027. The head lights of all the trucks were on and according to the prosecution the assailants were recognised in the torch light and also in the light shed by the trucks. As truck No. MPO 2857 driven by Kallu reversed and took the assailant away, the two trucks of the complainant got way and they went to Hodal Police outpost. The head lights of all the trucks were on and according to the prosecution the assailants were recognised in the torch light and also in the light shed by the trucks. As truck No. MPO 2857 driven by Kallu reversed and took the assailant away, the two trucks of the complainant got way and they went to Hodal Police outpost. The complainant left both these trucks at Hodal arid in another truck came to Kosi along with Jagdish Prasad P. W. 5. 4. Both Harish Chandra and Jagdish Prasad came to the office of the union at Kosi where Harish Chandra dictated a report Ext. Ka-13, Virendra wrote out the complaint and with this written complaint Harish Chandra came to Police Station Kosi where it was lodged on 11-5-1975 at 1. 05 a. m. On the basis of this written report a case was registered in the general diary, Ext. Ka-15 being its true copy. 5. An information about the dead bodies of Shobhraj and Nanak Chand and also about the two injured Jogendra Singh and Rahman was received at about 11. 40 p. m. on l. ,-5-1975 at Hodal Police outpost (police station Hansanpur, District Gurgaon. Haryana State) from Civil Dispensary Hodal. Both the injured were referred to Safdargang Hospital, New Delhi, after first aid. On this information Badri Prasad P. W. 8, Assistant Sub-Inspector Police outpost Hodal along with two constables went to ths civil dispensary. He prepared inquest reports of the dead bodies of Nanak Chand and Shobbraj Exts. Ka- 19 and 20. 6. Sri V. S. Tomar, P. W. 15 investigated the case after interrogation the Head Maharrir at the police station. He started for the place of occurrence and from there he went to Hodal and reached there when the inquest reports were being prepared. He interrogated the complainant, inspected the place of occurrence, took blood stained earth Ext. 1 and ordinary earth Ext. 2 from the place of occurrence. Truck No. HRG 15027 which had hundred bags of Arhar Daal was present at the spot, two constables were left for its safety with a direction that the truck be brought to the police station. 7. Jogendra Singh P. W. 4 was examined by Dr. S. N. Majumdar at 1. 50a. m. on 11-5-75. 2 from the place of occurrence. Truck No. HRG 15027 which had hundred bags of Arhar Daal was present at the spot, two constables were left for its safety with a direction that the truck be brought to the police station. 7. Jogendra Singh P. W. 4 was examined by Dr. S. N. Majumdar at 1. 50a. m. on 11-5-75. He had multiple small punctured looking pellet wounds on the right shoulder, neck nape of neck and occipital region, multiple pellet wounds were also found on right arm and forearm. X-ray was taken by Dr. V. Singh vide X-ray plate Ex. Ka-J, report, being Ex. Ka-2. 8. Rahman injured was also examined by Dr. S. N. Majumdar at 1. 50 a. m. on 11-5-75, vide injury report Ex. Ka-4. He had multiple small punc tured looking wounds with pellets on scapular region, on nape of neck and right occipital region. X-ray was taken by Dr. Y. Singh of Safdarjung Hospital, New Delhi, vide X-ray plate Ex. Ka-6 and report Ex. Ka-5. Yunus injured was examined at 11:15 a. m. on 27-6-75 by Dr. Prasad of District Hospital, Mathura, vide Ex. Ka-47. He had four old scars, one on the right eye brow, one on the right forearm, third on the right side of abdomen and the last on right shoulder. 9. The post-mortem examination of the dead body of Shobhraj was con ducted by Dr. B. R. Sood P. W. 1 of Palwal Dispensary, district Gurgaon, Haryana at 12. 30 p. m, on 11-5-1975, vide post-mortem report Ex. Ka-7 which showed that the left side of scalp was completely blown of (fiontal left parietal and right p-rietal bone, occipital left jbones were blown into pieces, mem brane and brain were lacerated and were partially misung. According to the Doctor, death was caused due to shock and haemorrhage. 10. The post-mortem examination on the dead body of Nanak Chand was also conducted by Dr. B. R. Sood at 1. 45p. m. on 11-5-75, vide post mortem report Ex. Ka-7. This report shows that the deceased had four wounds of inlet on the right arm and forearm, six wound on the front of right and, left chest, one wound on the right side of neck and 3 on the left side, two wounds in front of left arm and one forearm wound in the epigastric. Ka-7. This report shows that the deceased had four wounds of inlet on the right arm and forearm, six wound on the front of right and, left chest, one wound on the right side of neck and 3 on the left side, two wounds in front of left arm and one forearm wound in the epigastric. The neck was lacerated and blood was present in surrounding tissues. The peritonium and stomach were punctured. In the opinion of the Doctor, death was caused due to shock and haemorrhage. 11 The investigation of the case continued and the witnesses were interrogated by Sri V. S. Tomar on 12- 5-1975 and 13-5-75. On 16-5-75 hundred bags of Arhar Daal were given in the supurdagi of Kishan Prasad by memo. Ex. Ka-36 Jogendra Singh, P. W. 4. and Rahman were interrogated in Delhi. Proceedings under Sections 82 and 8, Cr. P. C. were taken against Yusuf, Ismail and Jamil. The firms of Nathimal Gaya Prasad, Kosi and Manohar Lal and the registers maintained by them, were inspected vide memo Ex. Ka-40 and Ex. Ka-41. Hansraj P. W. 11, driver of truck No. HRG 5027 was interrogated on 21-6- 975. 12. The damaged truck No. HRG 5027 was examined by the police mechanic on 20-6-75, vide report Ex. Ka-31. This report shows that its foot brake and hand brake were correct, but right side head light including grill and other parts were damaged. The enginge could not run because of damaged radiator and fan pully. Tho blood-stained articles and clothes were sent to Chemical Examiner. After completing the investigation, a charge-sheet was submitted against the accused. 13. All the accused denied their participation and asserted their false implication in support of the prosecution case Harish Cdand P. W. 2 (in truck No. DLL 7840) and Jogendra Singh P. W. 4 and Jagdish Prasad P. W. 5 (both in truck No. UPU 5887) were examined. Prem Chandra and Dharam Singh P. Ws. 6 and 7 respectively had loaded Arhar Daal in the trucks. The testimony of other witnesses is of formal nature. Hansral P. W. 11, Driver of the truck, was also examined by the prosecution. The accused produced Head Constable Mahahraj Singh D. W. 1. Lakhan Lal D. W. 2, Suresh Chandra Bansal D. W. 3, Munna Lal Sharma D. W. 4, Jagdish Chandra Sharma D. W. 5 and Dwarka Prasad Chaturvedi D. W. 6. Hansral P. W. 11, Driver of the truck, was also examined by the prosecution. The accused produced Head Constable Mahahraj Singh D. W. 1. Lakhan Lal D. W. 2, Suresh Chandra Bansal D. W. 3, Munna Lal Sharma D. W. 4, Jagdish Chandra Sharma D. W. 5 and Dwarka Prasad Chaturvedi D. W. 6. 14. On consideration of this evidence the learned Additional Sessions Judge found (I) that the complainant and other members of their union J wanted to monopolise the whole exit of goods from Kosi through their trucks, (2) truck. No. HRG 5027 contained No. 1 goods, (3) the prosecution has failed to establish that the accused persons had any motive for commission of the said crime, (4) truck No. MPO 2857 was not present at the spot, (5) the first information report was ante-timed, (6) the medical evidence is wholly incon sistent with the prosecution case, (7) the possibility that the incident took place on the road where blood was found and not in the two trucks, as alleged by the prosecution, cannot be ruled out, (8) the testimony of Hansraj P. W. 11 was unreliable and (9) that Kallu was not driving truck No. MPO 2857 and his presence at the time of commission of the offence has not been established. With these findings the Additional Sessions Judge found that the prosecution has failed to establish the charge against the accused who were acquitted. 15. There is no doubt that truck No. HRG 5027 was used by the assailants to fire at the complainants partys which had reached there iu the two trucks, as alleged by the prosecution. There is also no doubt that the incident took place at Kosi-Delhi road about five miks away from the sales tax check pest on the U. P.-Haryaia border. In this connection two facts are relevant to mention. Firstly that the Investigating Officer found truck No. HRG 5027 on the spot when he reached there the next day. This truck was badly damaged. The report of the police mechanic shows that the radiator and fan belt was damaged which prevented the truck from leaving the place ooccurrence. Secondly, Nanak Chand and Shobhraj, both deceased and injured Jogendra Singh, Rahman and Yunus were brought to police station Hodal on 10-5-75 at 11. 45 p. m. , vide entry made in the general diary. The report of the police mechanic shows that the radiator and fan belt was damaged which prevented the truck from leaving the place ooccurrence. Secondly, Nanak Chand and Shobhraj, both deceased and injured Jogendra Singh, Rahman and Yunus were brought to police station Hodal on 10-5-75 at 11. 45 p. m. , vide entry made in the general diary. Both the trucks belonging to complainants side were also brought to Hodal Police Station at the same time. It is, therefore, provided that the occurrence took place at Kosi-Delhi road as alleged by the prosecution and in the shoot out from Truck No. HRO 5027 Nanak Chand and Shobhraj died and Jogendra Singh, Rahman and Yanus received serious gun shot injuries. But the point for con sideration is whether the incident took place as stated by the prosecution. 16. In support of the prosecution case reliance has been placed on the testimony of Harish Chandra P. W. 4 Jagdish Singh P. W. 5 who were in truck No. UPU 5887. Before discussing their testimony a few facts, which have im portant bearing on their evidence, may be mentioned. 17. In the first place it is established from the evidence that truck No. MPO 2857 had not blocked the road as stated by the prosecution, witnesses. According to the prosecution, Kallu was driving this truck. The learned Additional Sessions Judge h is found that presence of Kallu has not been established. It is alleged that when truck No. HRG 5027 was damaged, the assailants cried out and asked Kallu to back truck No, MPO 2857 and when the truck was reversed, the assailants boarded it and ran away. Jagdish Prasad P. W. 5 has admitted that this part of the prosecution story was not stated by him when he. vas interrogated by the Magistrate under Section 164 Cr. P. C. Secondly, according to Prem Chandra P. W. 6 truck. No. HGR 5027 was loaded at 10 or 10:3o p. m. Thereafter this truck reached the mill of Jhamman ar about 10. 45 p. m. where Prem Chandra saw that Kallu driver was having a tussle with Tara Chadra Munim. He was asking Tara Chand to unload his truck. Prem Chandra stated that this truck was unloaded at about 10-45 p. m. with the help of Prem Chandra, Shibban and Krishan. 45 p. m. where Prem Chandra saw that Kallu driver was having a tussle with Tara Chadra Munim. He was asking Tara Chand to unload his truck. Prem Chandra stated that this truck was unloaded at about 10-45 p. m. with the help of Prem Chandra, Shibban and Krishan. The learned Additional Sessions Judge has rightly concluded that when this truck driven by Kallu was being unloaded at 10-45 p. m. at Kosi then there remains no possibility at all that this truck was present at the spot at the time of the incident. It may also be mentioned that Harish Chandra P. W. 2 has admitted that he had not mentioned in the first information report or in his statement before the Magistrate under Section 164, Cr. P. C. or in his statement before the Investigating Officer under Section 161, Cr. P. C. that Kallu had reversed truck No. MPO 2857. His explanation that he did not remember it, is hardly satisfactory. Consequently the prosecution evidence does not establish that truck No. MPO 2857 was loaded and had blocked the way thus forcing the complainants truck to stop. 18. In the first information report it is mentioned that the assailants had fired from truck No. HRG 5027 just when both the trucks of the complainants side crossed it. It is also alleged that as their way was blocked by truck No. MPO 2857, the complainants truck had to stop and Truck No. HRG 5027 strurfc them from behind and at that time also the assailants fired at the occupants of the two trucks. The first information report further mentions that the assailants were inside truck No. HRG 5027 and they were recognised in the torch light as also in the light shed by the head lignts of the four trucks. According to the prosecution the assailnts were on the tool box of truck No. HRG 5027. The tool box is a wooden enclosure which remains open facing sky. It is about two ft. high wooden enclosure. It is just above the Dirvers seat and is a little raised then the railing of the truck. The pro secution witnesses state that all the assailants were in the tool box. The prosecution witnesses as also the union members who were going to inform the sales tax, octroi post, were in the two trucks as already mentioned above. It is just above the Dirvers seat and is a little raised then the railing of the truck. The pro secution witnesses state that all the assailants were in the tool box. The prosecution witnesses as also the union members who were going to inform the sales tax, octroi post, were in the two trucks as already mentioned above. The site plan prepared by the Investigating Officer would show that these trucks were going in a line one behind the other truck No. MPG 2857 crossed truck No. HRG 5027 which dashed against truck No. UPU 5887, so truck No. HRG 5027 was towards Kosi side and truck Nos. UPU 5887, DLL 7840 and MPO 2857 were in that order towards Delhi side. Now as both the com plainant truck crossed truck No. HRG 5027 the head lights of all the three trucks would have been towards Ddhi side. The prosecution witnesses who was in these two trucks did not know truck number in which the goods were being tranported to Delhi, therefore, they could not have known that truck No. HRG 5027 was carrying goods not forwarded by their union. There was, therefore, no occasion for the occupants of both the trucks of the complainant side to flash torches when they crossed truck No. HRG 5027 and the assailants sitting on the tool box of truck No. 5027 could not have been invisible in the light shed by the head lights. Significantly it is admitted by Harish Chandra that the assailants had not come down from truck No. HRG 5027. Tbey fired while sitting in the tool box of that truck. It may also be mentioned that Jogendra Singh has admitted that he had sent the torch light only once and that too after he had been injured. The above discussion leads to a conclusion that the assailants could not be recognised at torch light and the light shed by the head-lights of three trucks, which were one behind the other, was not available. 19. The learned Additional Sessions Jugde was also justified in finding that the occurrence had not taken place as suggested by the prosecution and clearly the injured were not inside the truck when the assailants fired at them. Undisputedly the injured were brought to police station Hodal immediately after the occurrence. 19. The learned Additional Sessions Jugde was also justified in finding that the occurrence had not taken place as suggested by the prosecution and clearly the injured were not inside the truck when the assailants fired at them. Undisputedly the injured were brought to police station Hodal immediately after the occurrence. Harish Chandra P. W. 2 has admitted that after the trucks were brought to police station Hodal he did not see blood on the ground just below these two trucks. He also states that both these trucks were unloaded. If the members of the union were going to inform the sales tax octroi post on U. P. Haryana border, it was not necessary for them to take two trucks. They would have boarded only one truck. No explanation has been given why it was felt necessary to take two trucks from Kosi itself. Jagdish Prasad P. W. 5 has given an half hearted explanation about it. He states that as it was night and there was no safety, therefore, they took two trucks. But it is significant that none of the members of the union were armed. If they had taken two trucks for their safety, they would have armed themselves The proscution story that they were following the two trucks that had left Kosi, cannot be believed. Secondly, Bhagwan Das and Jai Prasad were driving the two trucks of the complainants side has been admitted by Jogendra Singh P. W. 4. The Investigating Officer has admitted that two pagts relating to the statements of these two truck drivers Bhagwan Das and Jai Prakash are missing from the case diary, They hava not been produced. These drivers would have been relevant witnesses to prove that the union had taken these two trucks to reach the octroi post before the assailants truck could cross the border. Thirdly, Badri Prasad who was posted at Hodal outpost was the first to inspect these two trucks. He admits that he had not seen any pellet marks inside the trucks. No piece of the deceasds head which had been blown of were found in these two trucks. Fourthly, Investigating Officer has admitted that he inspected these two trucks on 12-6-1975, i. e. , about a month after the occurrence. He admits that he had not seen any pellet marks inside the trucks. No piece of the deceasds head which had been blown of were found in these two trucks. Fourthly, Investigating Officer has admitted that he inspected these two trucks on 12-6-1975, i. e. , about a month after the occurrence. There is no evidence as to where these trucks after 11-5-1975 when they were brought to police station Hodal till 12-6-1975 when they were first inspected by the Investigating Officer. No reason has been given by the Investigating Officer why the two trucks were not inspected by him before. It has been stated by the Investigating Officer that immediately after a report was lodged, he lefc for the place of occurrence in a jeep where he was informed that Harish Chandra, deceased and the injured had left for Hodal, He took his jeep to Hodal and prepared a Panchayatnama there, Obviously these trucks were at police station Hodal. But when the Investigat ing Officer had reached there it is strange that both the trucks were not inspected by him. It follows therefore that the members of the Union had not left Kosi in these two trucks and the assailants had not fired at these two trucks, as suggested by the prosecution. 20. There is also no motive for the accused to commit the offence. The prosecution witnesses admit that there were many transport companies in Kosi and all these companies merged in the Truck Operators Union established on 26-3-1975. Jogendra Singh P. W. 4 admits that there were fourteen members of the union and almost all the goods were transported out of Kosi through their union. According to the prosecution some businessmen did not like the formation of this union. They wanted to transport their goods through some other agencies which was not liked by the members of the union. Truck No. HRG 5027 was one such truck in which Arhar Daal was being transported to Delhi. When the union members wanted to inform the octroi post at the border, the driver of truck No. HRG 5027 would have naturally tried to escaped unnoticed from the border and there could be no motive for the occupants of truck No. HRG 5027 to fire at the trucks beloging to the union. 21. When the union members wanted to inform the octroi post at the border, the driver of truck No. HRG 5027 would have naturally tried to escaped unnoticed from the border and there could be no motive for the occupants of truck No. HRG 5027 to fire at the trucks beloging to the union. 21. It may also be mentioned that accused Ismail, Ahmed and Yusuf had filed a complaint against Sri V. S. Tomar. Investigating Officers, in this case on 26-4-1975 and an enquiry was made by the Circle Officer. The learned Additional Sessions Judge has rightly concluded that Sri V. S. Tomar had motive to falsely implicate the accused in this case. 22. The prosecution witnesses can be grouped in three classes. Harish Chandra P. W. 2 occupied truck No. DLL 7840, Jogendra Singh P. W. 4 and Jagdish Presad P. W. 5 occupied truck No. UPU 5887 and Hansraj P. W. 11 is the driver of truck No. HRG 5027. Harish Chandra Jogendra Singh and Jagdish Prasad are members of the union. They are, therefore, highly interested witnesses in falsely implicating the accused. There was no light and the members of the union had not taken the two trucks from Kosi. It follows therefore that whoever intercepted truck No. HRG 5027 could not have seen the assailants. 23. The tertimony of Hansraj may bi considered separately. It has been argued by learned Counsel for the prosecution that admittedly Hansraj was driver of truck No. HRG 5027 and his statement that the accused had boarded this truck and had fired at the occupants of the two trucks of com plainant side should be believed. In this connection few facts may be mentioned Jogendra Singh P. W. 4 has admitted that Hansraj was known to him from before. Jogendra Singh had stood surety for Haasraj before bis truck was released in his favour. Harnsraj was interrogated on 11-6-1975 though he has admitted that after the occurrence and before interrogation he was continuously present at Kosi. There is no reason why the Investigating Officer delayed bis interrogation. A few revealing facts may also be mentioned. Truck No. HRG 5027 was owned by Hansraj and before the occurrence. Vishnu used to drive it. Hansraj had applied for release of his truck on 27-5-1975. On 21-7-1975 the Investigating Officer noted the order for com pliance. There is no reason why the Investigating Officer delayed bis interrogation. A few revealing facts may also be mentioned. Truck No. HRG 5027 was owned by Hansraj and before the occurrence. Vishnu used to drive it. Hansraj had applied for release of his truck on 27-5-1975. On 21-7-1975 the Investigating Officer noted the order for com pliance. Naturally after the order Hansraj must have app-oached the Investi gating Officer but the truck was released on 26-6-1975 and on the same day Hansraj was produced before the Magistrate for his statement under Section 164, Cr. P. C. The Investigating Officer had not taken proceedings against Hansraj under Sections 82 and 83, Cr. P. C. These facts indicate that the truck was released in favour of Hainsraj only after he agreed to support the prosecution, story by his statement under Section 164. Cr. P. C. It is for this reason that one prosecution witness Jogendra Singh had stood surety for the release of his truck. Hansraj, therefore, cannot be said to be an independent witness. 24. In view of the discussion given above, the prosecution has failed to establish that the incident resulting in the death of Nanak Chand and Shobhraj and the injuries to Jogendra Singh, Rahman and Yunus, was caused as stated in the first information report. They were rightly acquitted by the learned Additional Sessions Judge. 25. The appeal has no force and is dismissed and the order of acquittal, dated 20-5-1977, passed by 1st Additional Judge. Mathura, in Criminal Sessions Trial No. 286 of 1975, is confirmed. Appeal dismissed. .