JUDGMENT A. N. Dikshita, J. - Appellants Ram Pal alias Rajpal Singh, and Manna Singh, sons of Nawab Singh, Nawab Singh, Kaptan Singh and Ghhotey Singh sons of Prahlad Singh have preferred this appeal against the judgment and order dated 231979 passed by Sri L. S. Shukla, VI Addi. Sessions Judge Shahjahanpur in Sessions Trial No. 375 of 1976 convicting and sentencing tae appellants (1) Rajpal Singh @ Rampal Singh to undergo two years R. I. and to pay a fine of Rs. 100 under Section 436 IPC and in detauit of payment of fine to undergo three months R. I. and also sentenced him to undergo 3 months' R. I. under Section 147 and 3 months' R. I. under Section 323/149 IPO, (2) Nawab Singh to undergo 2 years' R. 1. and a fine of Rs. 100 under Section 436 IPC, in default of payment of fine to undergo 3 months' further R. I. and also sentenced him to undergo 3 months' R, 1. under Section 323 IPC and 3 months' R. I. under Section 147 IPO. ; and appellants Kaptan Singh, Chotey Singh and Munna Singh to undergo 2 years' R. I. and a fine of Rs. 100 each under Section 436 read with 149 IPC. In default of payment of fine they were sentenced to undergo 3 months' R. I. Further they wore sentenced to undergo 4 months' R. I. under Section 148 IPC and 3 months' R. I. under Section 323/149 IPC. All the sentences were to run concurrently. 2. The prosecution story is that in the morning of 7675, Ram Saran nephew of Mewa Ram had a scuffle with Rajpal and Muuna, Ram Saran had lodged a report against Rajpal and on account of this lodging of the first information report Rajpal bore enemity with Ram Saran. Rain Saran is nephew of Mewa Ram son of Shibba, Around 10 p.m. on 761975 Rajpal Singh son of Nawab Singh of village Dilawalpur Kalan threw a burning matchstick on the chhapper lying at the door of Mewa Ram thus setting it ablaze and also some belongings in the house. Kaptan Singh was wielding a gun, Nawab Singh a revolver, Munna a spear, Subedar Singh a lathi and Chhotey Singh a sword. All these persons entered into the house of Mewa Ram and Nawab Singh gave a blow to the mother of Mewa Ram. Kaptan Singh was wielding a gun, Nawab Singh a revolver, Munna a spear, Subedar Singh a lathi and Chhotey Singh a sword. All these persons entered into the house of Mewa Ram and Nawab Singh gave a blow to the mother of Mewa Ram. All the above persons exhorted that the residents of the house be killed. Fakire Dhobi, besides the residents of the house have witnessed the incident along with Kalika, Rain Bilash and Badshah. On account of fear and in view of the assailants having blocked the way, Mewa Ram instead of lodging the report at police Station Nigohi, in whose jurisdiction village Dilawalpur Kalan existed, lodged the report at police station Sidhauli on 8675, at 5.30 p. m. 3. Smt. Divkora, mother of Mewa Ram was examined at P. H. C. Nigohi on 1061975 at 10.15 a. m. by Dr. Rajnees Kumar who found the following injury .on his body : "Injury(I) Lacerated wound 2 cm. X 1 cm. X 0.5 cm. on the left side of 7 cm. above left ear. Bleeding Present. Nature : Injury is simple. CauseHard and blunt object. DurationFresh." After necessary investigation, a chargesheet was submitted against the appellants who pleaded not guilty. They were put on trial and convicted and sentenced as stated above. 4. In support of the prosecution case P. W. 1 Mewa Ram has corroborated the allegations in the F. I. R. He has stated that around 10 p. m. Kaptan Singh, Ram Pal Singh alias Rajpal Singh, Munna Singh, Chottey Singh, Nawab Singh, Subedar Singh and Ranvir Singh came to his house. He, however, said that he did not see Kanvir on the door, but saw him while fleeing. He has stated Kaptan Singh was weilding a gun Chhotey Singh a sword Munna a spear, Subedar and Nawab Singh lathis. He could not see what was being wielded by Ranvir Singh. He has further stated that Kaptan Singh exhorted to give a beating and also to set it on fire whereupon Rajpal threw a burning matchstick on chapper. He, however, says that when his mother enquired as to why would they beat her sons and why the house of her be set on fire, Nawab Singh gave her a lathi blow and then ran away. Alarm and noise was raised. He, however, says that when his mother enquired as to why would they beat her sons and why the house of her be set on fire, Nawab Singh gave her a lathi blow and then ran away. Alarm and noise was raised. Kaptan Singh fired a shot and on hearing the gun shot, Harnam alias, Chhanga, Fakire and others came. However, no independent witness is forthcoming as they are scared of the appellants. He has staled that he has recognized the appellants after the chapper was set ablaze. After the incident, as the appellants had surrounded him, hence he could not go to police station Nigohi to lodge the report which instead of lodged at police station Sidhauli, the next day. He has also stated that his mother medically examined in the hospital at Nigohi. This witness has also stated that 3/4 days prior to this incident his nephew Ram Saran was beaten by Rajpal Singh. A report was lodged by Ram Saran and he had gone with Ram Saran at that time to the police station. It is, on this account only the appellants bore enemity. 5. Instantly it may be mentioned that Ram Saran has not been examined in this case to corroborate the story of his being beaten by Rajpal. He has admitted that all the persons of the house were sitting in front of the kothari where food was cooked. The place where the food was cooked is beneath the chapper inside the house. The oven was burning and suddenly the appellants, came and fired a gun shot. On hearing this gunshot P. W. 1 Mewa Ram states that he came out of the house. After hearing the gun shot P. W. 1 admits that he came out of the house whereafter the chapper was set ablaze. He has further categorically stated that first there was a gun fire shot whereafter chapper was set a fire. 6. There is absolutely no mention of the gun having been used in the first information report. Such an improvement in the prosecution story creates reasonable doubt in its truthfulness. It is borne out from the testimony of this witness that the chopper is outside the house and it was a summer season. Ordinarily villagers do not cook their food so late in the night. Moreover any spark could have set the chopper ablaze. Such an improvement in the prosecution story creates reasonable doubt in its truthfulness. It is borne out from the testimony of this witness that the chopper is outside the house and it was a summer season. Ordinarily villagers do not cook their food so late in the night. Moreover any spark could have set the chopper ablaze. If the motive of the appellants was to wreak revenge by burning the chopper, there was hardly an occasion firing a gun shot. Appellants could have had adequate opportunity without being taken notice of any person to put the chopper ablaze. Such an introduction of the gun shot is apparently to create the presence of the witnesses. Implicit reliance thus cannot be placed on the testimony of P. W. 1 Mewa Ram. Another salient fact which has been admitted by him in that his mother Shivkora alias Divkora was given a lathi blow and was medically examined. Admittedly she was examined on 1061975 at 10.15 a. m. She was brought to the hospital by village chaukidar. P. W. 6 Dr. Rajnees had stated that the duration of injury is 6 hours. He had categorically denied that the injury was inflicted on 761975. P. W. 6 Dr. Rajness has also stated that the injury which has been sustained by Shivkora alias Divkora could also have been caused by collision with blunt object. 7. P. W. 2 Ram Bilas has more or less supported the statement of P. W. 1 Mewa Ram. He has admitted that after hearing the gun shot and the noise from the house of Mewa Ram, he ran towards the house. Admittedly Mewa Ram is the uncle of P. W. Ram Bilas. He has stated that he saw Rajpal burning the chopper with matchstick and Nawab Singh having given a lathi blow to his grandmother Shivkora alias Divkora. This belies human conduct a sin such a shot time when the incident occurred P. W. 2 Ram Bilas could not have sufficient opportunity to witness it. Moreover the lathi blow as per the prosecution case was given by Nawab Singh to Smt. Divkora, in the house. How this witness could sec the giving of this lathi blow, is a riddle which the prosecution has failed to solve. This witness was interrogated after 3 months of the incident. Moreover the lathi blow as per the prosecution case was given by Nawab Singh to Smt. Divkora, in the house. How this witness could sec the giving of this lathi blow, is a riddle which the prosecution has failed to solve. This witness was interrogated after 3 months of the incident. He has admitted that Kaptan Singh is the Pradhan of the village and had defeated one Nirmal Singh. The affinity of this witness with Nirmal Singh along with that of Mewa Ram is also emerging from his statement. Another fact which this witness has introduced in his statement is that the chappar of Baldeo was also burnt. Baldeo has not been produced nor Baldeo had lodged any report. Moreover the burning of the chopper of Baldeo does not find any mention in the first information report. Implicit reliance thus cannot be placed on the testimony of P. W. 2 Ram Bilas and his testimony also deserves to be discarded on the ground on which the testimony of Mewa Ram (P. W. 1) has been discarded. 8. P.W. 4 Badshah is the other eyewitness. No doubt, he has supported the statement of P. W. 1 Mewa Ram and P. W. 2 Ram Bilas, but his testimony hardly inspires any confidence. His zeal and enthusiasm is displayed when he says in one breath that 2025 gunshots were fired. His testimony hardly betrays truthfulness and deserves to be discarded. He is also an interested witness being a close relation of Mewa Ram. 9. P. W. 8 Shivkora alias Divkora was examined on 2821979 after the statement of the accused persons (appellants) were recorded under Section 313, Cr.P.C. and also D. W. 1 Ram Swaroop. The statement of accused persons and D. W. 1 were recorded on 1321979. This witness has no where stated about the firing of the gun shot or of the arson. She has only stated about the injuries sustained on account of the lathi blow being given by Nawab Singh. As has been shown above, the duration of the injuries sustained by this witness is around 6 hours when she was medically examined on 10679. P. W. 6 Dr. Rajnees has categorically stated that the injuries received by this witness could not have been inflicted on 7679 as is the case of the prosecution. As has been shown above, the duration of the injuries sustained by this witness is around 6 hours when she was medically examined on 10679. P. W. 6 Dr. Rajnees has categorically stated that the injuries received by this witness could not have been inflicted on 7679 as is the case of the prosecution. In fact this witness has not supported the prosecution version about the firing of the gun shot and the arson. In view of the above, the prosecution has failed to bring home the guilt to the appellants. 10. In the result, the appeal succeeds and is hereby allowed. The judgment and order dated 231979 convicting and sentencing the appellants as mentioned above are set aside. The appellants are on bail. They need not surrender. Their bail bonds are discharged. The fine, if deposited, shall be refunded to the appellants.