JUDGMENT S. Saghir Ahmad, J. - The above Capital Sentence Reference No. 3 of 1988 was rejected and the criminal appeals were allowed by us by our short order dated 1-12-1988. We now proceed to give our reasons. 2. The prosecution story is as under :- Village Tilokpur consists of several hamlets one of which is Kurthara. Abdul Ali appellant is resident of village Tilokpur. Mustafa appellant, who earlier lived in village Kurthara, shifted to village Tilokpur and is an associate of appellant Abdul Ali. The other appellants, namely, Vikram and Ramanuj, are residents of village Kurthara. The appellants belong to one party and are close associates of one another. 3. Abdul Ali was the Pradhan of village Tilokpur for about 15 years but about a year prior to the incident in question he lost the election to the office of Pradhan in which Shanker (deceased) who had contested the election, was declared elected against six other persons. This victory was celebrated by the village people exploding crackers which was not liked (illegible) his party members who developed enmity against Shanker and started making plans for murdering him. About a year ago while Shanker was going to village Tilokpur, an attempt was made-on his life by Abdul All, Mustafa and Dargahi who assaulted him with handgrenades and country made pistol but Shanker, who was injured, survived the assault. Shanker reported the matter to the police in pursuance of which Abdul Ali, Mustafa and Dargahi were prosecuted under Section 307, I.P.C. and the case against them was pending on the date of the incident in question. Apart from the above, a case under Section 107, Cr.P.C. was also pending on the date of the incident against Abdul Ali, Mustafa, Ramanuj, Ravi Chand, Sahaj Ram, Rehman, Dargahi and others. 4. Prior to the incident in question Abdul Ali had applied for motion of no confidence against Shanker of which a notice was issued to him just one day before the incident in question. The next day at about 7 or 7.30 a.m. the informant, namely, Mangal (P.W. 1) (real brother of the deceased) along with the deceased, Shanker and his uncle Chhhotey Lal (P.W. 2) left their village for Tilokpur so as to discuss the possibility of obtaining stay order in respect of the no confidence matter with other members. The next day at about 7 or 7.30 a.m. the informant, namely, Mangal (P.W. 1) (real brother of the deceased) along with the deceased, Shanker and his uncle Chhhotey Lal (P.W. 2) left their village for Tilokpur so as to discuss the possibility of obtaining stay order in respect of the no confidence matter with other members. They went to the house of Dwarika Baniya who was the member of the Gaon Panchayat and discussed the matter with him who stated that he had not signed the (illegible) confidence and that he would also accompany them. He, however, asked them to go saying that he would soon follow them. They left the house of Dwarika and when they reached near the house of Dhanendra Jain, then Abdul Ali, armed with his double barrel gun, Mustafa, armed with Katta, Vikram, armed with Katta and Ramanuj, armed with Banka suddently appeared on the scene. Ramanuj uttered a few abusive words. Abdul Ali fired at Shanker. Ramanuj assaulted him with a "Banka" whereas Mustafa and Vikram fired their country made pistols at Shanker. The gun and pistols were fired at Shanker from a distance of three or four paces as a result of which Shanker fell down and died at the spot. This happened at 8.45 a.m. The sound of the fire and the cries raised at the spot attracted Mahadin and Mahabir and few other whereupon all the appellants ran away from the scene of occurrence and escaped. 5. A report of the above incident was dictated by the informant Mangal (P.W. 1) to his uncle Chhotey Lal (P.W. 2). This report was signed by Mangal as also by his uncle Chhotey Lal. Mangal took the written report (Ext. Ka- 1) to the police station Masauli Distt. Bara Banki where he handed it over to the Head Constable, Sri Sukantha Ram (P.W. 3) who prepared the Chik F.I.R. (Ext. Ka-2) and registered the case in the general diary at serial No. 11 of which a copy has been brought on the record as Exhibit Ka-3. 6. The Station Officer Sri Mohan Lal Pandey (illegible) the investigation and left for the spot along with Sub-Inspector Dhan Lal Singh and Constable Ram Naresh Singh, Jagdish Pandey and Kripa Tewari. 7. Ka-2) and registered the case in the general diary at serial No. 11 of which a copy has been brought on the record as Exhibit Ka-3. 6. The Station Officer Sri Mohan Lal Pandey (illegible) the investigation and left for the spot along with Sub-Inspector Dhan Lal Singh and Constable Ram Naresh Singh, Jagdish Pandey and Kripa Tewari. 7. It may be stated that the F.I.R. was lodged at the Police Station in the presence of Sri Mohan Lal Pandey who interrogated the informant, namely, Mangal (P.W. 1) at the Police Station itself. 8. On reaching at the spot, the Investigating Officer Sri Mohan Lal Pandey (P. W. 6) prepared a" Panchnama" (Ext. Ka5) of the dead body. The dead body was sealed and sent fbr post-mortem examination through Constable Jagdish Pandey and village Chaukidar Rahmat Ali. 9. The post-mortem examination was performed at Barabanki on 25-12-83 at 3.00 p.m. by Dr. Ram Mohan (P.W. 4). The post-mortem report is exhibit Ka-4. The doctor found the following ante-mortem injuries:- 1. Lacerated wound on the left side of neck 4 cm. x 1 cm x muscle deep 2 cm. above left collar bone. 2. Gun shot wound of entry 3 cm. x 3 cm. x chest cavity deep, circular in shape surrounding skin is blackened and hairs are singed. The wound is situated on the left side of chest. 3 cm. above and lateral to the left nipple. Margins are inverted. ..~ . 3. Gun shot wound of entry on the right side of abdomen 2 cm. x 1 cm. x abd. cavity deep 3 cm. right to the umbilicus. Margins are inverced surrounding skin is blackened and hairs are singed. 4. Incised wound on.the point of right thumb on the pulp 1 cm. x 0.4 cm. x muscle deep. 5. Gun shot wound of exit on the right side of lower back (lumber area) 5 cm. x 3 cm. x abd. cavity deep Margins are inverted. The wound is corresponding with injury No. 3. 6. Contusion on the right scapular region 1 cm. x 1 cm. in size. 7. Two subcutaneous swelling 1 cm. x 1 cm. on the left side of chest 5 cm. below and lateral to the left nipple. Some rounded foreign body is felt under the skin. 10. In the opinion of Dr. 6. Contusion on the right scapular region 1 cm. x 1 cm. in size. 7. Two subcutaneous swelling 1 cm. x 1 cm. on the left side of chest 5 cm. below and lateral to the left nipple. Some rounded foreign body is felt under the skin. 10. In the opinion of Dr. Ram Mohan cause of death was shock and haemorrhage as a result of fire-arm wounds. 11. The Investigating Officer also prepared the "Photo-lash" (Ext. Ka-6), Challan-lash (Ext. Ka-7) and the site plan '(Ext. Ka-8). He also collected bloodstained earth and prepared the Fard (Ext. Ka-9). The bloodstained earth was sealed in a packet (Ext. 13) while the plain earth was sealed in a separate packet (Ext. 12). 12. The Investigating Officer also recovered pellets and 'Tikli' regarding which Fard (Ext. Ka-10) was prepared by him. The pellets and 'Tikli' are exhibits 5 and 6. He also recovered the wearing apparel of the deceased, namely, bloodstained Coat (Ext. 7), bloodstained shirt (Ext. 8), bloodstained Sweater (Ext. 9) bloodstained Dhoti (Ext. 10) regarding which Fard (Ext. Ka-11) was prepared. He also recovered 70 Paise and a dot pen and also a notice (Ext. 2) from Panchayat Raj Adhikari from the pocket of the Coat regarding which Fard (Ext. Ka-12) was prepared. A pair of Chappal (Ext. 11) was also recovered. 13. Plain and bloodstained earth, bloodstained clothes as also "Chappal" were sent to the Forensic Laboratory, Agra. The reports are Exhibits Ka-14 and Ka-15. 14. During the course of investigation, the Investigating Officer came to know that the gun used by Abdul Ali for committing the murder of Shanker had been deposited by him at the shop of Wahab Ali, Proprietor, Public Gun House, Nadan Mahal Road, Lucknow on 24-12-83 at 9.30 a.m. He took possession of the gun on 6-1-84 regarding which Fard (Ext. Ka-13) was prepared.' After completing the investigation Sri Mohan Lal Pandey submitted a charge-sheet (Ext. Ka16). 15. In order to prove its case the prosecution produced two eye-witnesses, namely, Mangal (P.W. 1) and Chhotey Lal (P.W. 2). Constable Sukhanta Ram, who had registered the case against the appellants, was examined as P.W. 3. Dr. Ram Mohan, who had performed the post-mortem examination, was examined as P.W. 4. Ka16). 15. In order to prove its case the prosecution produced two eye-witnesses, namely, Mangal (P.W. 1) and Chhotey Lal (P.W. 2). Constable Sukhanta Ram, who had registered the case against the appellants, was examined as P.W. 3. Dr. Ram Mohan, who had performed the post-mortem examination, was examined as P.W. 4. Constable Jagdish Prasad, who had'taken the dead body to Barabanki for post-mortem examination, was examined as P.W. 5 while the Investigating Officer Sri Mohan Laly Pandey was examined as P.W. 6. 16. Apart from the documents, specified above, the prosecution also tendered in evidence a copy of the report lodged by Shanker Lal (deceased) against appellants Abdul Ali, Mustafa and Dargahi under Section 307/34, I.P.C. at P.S. Masauli as Exhibit Ka- 17, certified copy of the charge-sheet submitted in the said case as exhibit Ka-18 and certified copy of the Challani report dated 21-2-83 under Section 107/116, Cr. P.C. against Abdul Ali, Mustafa, Ramanuj and five others as exhibit Ka-19, certified copy of the notice issued by the Panchayat Raj Adhikari in respect of the no confidence motion as exhibit Ka-20 and a certificate issued by the Panchayat Raj Adhikari, Barabanki as exhibit Ka-21, which indicates that the application for no confidence motion was moved by Abdul Ali, Ramanuj, Vishram and two other persons. 17. The accused denied the prosecution allegations. They examined one witness Dwarika Prasad as D.W. 1 and tendered in evidence several documents vide List 119-ga comprising of carbon copy of Chik report (Exhibit Kha-1 and Kha-2), charge-sheet in a gambling case against the deceased (Exhibit Kha-3) and another charge-sheet under the Gambling Act against the deceased (Exhibit Kha-4), copy of recovery memo relating to a gun (Exhibits Kha-4 and Kha-6), copy of the compromise (Exhibits Kha-7 and Kha-8) and two copies of Question and Answer (Exhibits Kha-9 and Kha-10). Two other documents including a receipt and a certificate were also filed vide List 135-ga. 18. Learned counsel for the appellants has contended that the charge against the appellants was not proved and the conviction recorded by the trial Court is wholly unfounded and unjustified particularly as the evidence of the eye-witnesses examined by the prosecution is unreliable and was liable to be discarded. He also contended that the First Informant Report was ante-timed and the investigation was highly tainted. He also contended that the First Informant Report was ante-timed and the investigation was highly tainted. The further contention was that there was a direct conflict between the oral evidence and the medical evidence which indicated that the case against the appellants had been cooked up on account of enmity. 19. The case of the prosecution is that deceased Shanker Lal was assaulted by the appellants near the house of Dhanendra Jain after he along with his younger brother Mangal (P.W. 1) and Uncle Chhotey Lal (P.W. 2) had a meeting with Dwarika Prasad at his house, a few paces away from the house of Dhanendra Jain, where a programme was chalked out that all of them would go to Barabanki or Lucknow to bring an order of Stay in respect of the no confidence motion either from the Panchayat Raj Adhikari or from the High Court. 20. It is contended by the learned counsel for the appellants that the prosecution story (illegible) established and on the basis of the evidence on record it could not be said that the deceased had gone to meet Dwarika Baniya or that he was assaulted or killed in the manner alleged by the prosecution at the alleged time or place. 21. The case of the prosecution, as set out in the F.I.R. is to the effect that Shanker Lal was the Pradhan of village Tilikpur which consisted of several hamlets including village Kurthara where the informant, Mangal (P.W. 1) and Shanker Lal lived. Abdul All was defeated by Shanker Lal in the election held a year ago for the office of Pradhan and since then he was on inimical terms. Abdul All had attempted to commit murder of Shanker Lal regarding which a case under Section 307, I.P.C. was pending. Apart from this case, there was also a case under Section 107 of the Code of Criminal Procedure. It was further stated in the F. 1. R. that Abdul Ali had moved a no confidence motion which was carried through and thereafter he had handed over the papers to the Panchayat Raj Adhikari at Barabanki who had issued a notice to Shanker Lal which was served upon him a day prior to the incident in question. It was further stated in the F. 1. R. that Abdul Ali had moved a no confidence motion which was carried through and thereafter he had handed over the papers to the Panchayat Raj Adhikari at Barabanki who had issued a notice to Shanker Lal which was served upon him a day prior to the incident in question. It was further alleged in the F.I.R. that on the date of the incident the deceased (Shanker Lal) along with informant Mangal (P.W. 11 and his uncle Chhotey Lal (P.W. 2) had gone to Tilokpur in the morning to consult Dwarika Prasad Baniya and after talking to him they were proceeding towards the Bus Station to hoard the bus to go to Barabanki, to obtain stay order. As soon as they reached near the corner of the house of Dhanendra Jain at about 8.45 a.m., there emerged suddenly Abdul Ali (armed with a double barrel gun), Mustafa, son of Faquirey (armed with Katta), as also Vikram (armed with a Katta) and Ramanuj (armed with a Banka), who stated . that he would not be spared whereafter Abdul Ali, Mustafa and Vikram fired their gun and khattas. Ramanuj assaulted with his Banka which was caught hold of by Shanker Lal. The concluding line of the F.I.R. indicates that on the cries and alarm raised, there reached at the spot Mahabir, Mahadin and several others whereupon the appellants ran away. 22. On the basis of the above recitals of the F.I.R. it would be seen that the case of the prosecution from the very beginning was i hat Shanker Lal was assaulted by Abdul Ali, Vikram and Ramanuj by their fire-arms while Ramanuj assaulted him with his Banka. 23. The F.I.R. was recorded at the Police Station in the presence of the Station Officer Sri Mohan Lal Pandey (PW 6) who took up the investigation immediately and after interrogating Mangal (PW 1) who had lodged the report, he proceeded to the spot where he prepared the "Panchayatnama" which was signed by several persons in whose presence it was said to have been prepared. I he cause of death shown in the "Panchayatnama" is " xksyh ekj dj gR;k djuk " i.e. Shanker Lal was shot dead. I he cause of death shown in the "Panchayatnama" is " xksyh ekj dj gR;k djuk " i.e. Shanker Lal was shot dead. The Panchayatnarna does not indicate the use of "Banka" which significantly was contrary to the allegations set out in the F.I.R. that the deceased was also assaulted by a "Banka". 24. Panchayatnama (Inquest report) is required to be prepared under S. 174, C r. P.C. 25. Sub-section (1) of S. 174, Cr. P.C. lays down as under :- "174(1) - When the officer in charge of a Police Station or some other Police Officer specially empowered by the State Government in that behalf receives information that a person has committed suicide, or has been killed by another or by an animal, or by machinery or by an accident, or has (lied under circumstances raising a reasonable suspicion that some other person has committed an offence, he shall immediately give intimation thereof to the nearest Executive Magistrate empowered to hold inquests, and, unless otherwise directed by any rule prescribed by the State Government. or by any general or special order of the District or Sub-Divisional Magistrate. shall proceed to the place where the body of such deceased person is, and there, in the presence of two or more respectable inhabitants of the neighbourhood, shall make an investigation, and draw up a report of the apparent cause of death, describing such wounds, fractures, bruises and other marks of injury as may he found on the body, and stating in what manner, or by what weapon or instrument (any), such marks appear to have been inflicted." 26. The provisions, extracted above, are, undoubtedly, mandatory. These provisions require that on receiving the information that a person has been killed by another, the officer in charge of a Police Station shall proceed to the place where the body of the deceased person is, and there, in the presence of two or more respectable inhabitants of the neighbourhood, make investigation, and draw up a report of the apparent cause of death, describing such wounds, fractures, bruises and other marks of injury, as may be found on the body, and stating in what manner, or by what weapon or instrument, such marks appear to have been inflicted. The nature of injuries on the person of the deceased can be ascertained by looking at the body and the injuries which would also enable the Police Officer concerned to come to the conclusion as to the probable cause of death or the weapon or the instrument used to cause death. 27. It is not only in the case of homicide 1that a Police Officer is required to proceed to the spot but he has also to go to the spot in a case where the information relates to the commission of suicide or the death is said to have been caused by an animal or machinery or accident. The primary purpose of holding an inquest is to ascertain the cause of death and to find out whether it is homicidal, suicidal or accidental. The law, therefore, requires a Police Officer to make an investigation and prepare a report describing the wounds and indicating by what weapon such wounds appear to have been caused. The inquest report, though a document of limited scope and nature, can nevertheless he utilised under S. 145 of the Evidence Act. 28. As pointed out earlier, in the instant case the inquest report is silent as to the use of "Banka", why has the use of "Banka" not been mentioned in the "Panchayatnama" is a question which immediately crops up for consideration in view of the recitals in the F. I.R. mentioning in unambiguous words that the deceased was also assaulted by "Banka" which was wielded by Ramanuj. What is the answer of the above question is the next question. 29. The Investigating Officer, Sri Mohan Lal Pandey (PW 6), who is the author of the "Panchayatnama",. has admitted in his statement that at the time of preparation of Panchayatnama, he had come to know by which weapon was the deceased killed. If that was so, he would have mentioned the use of"Banka' in the Panchayatnama(Inquest report) particularly when he says that he had already interrogated the informant immediately on the lodging of the F.I.R. which. to repeat, was admittedly lodged in his presence. 30. If that was so, he would have mentioned the use of"Banka' in the Panchayatnama(Inquest report) particularly when he says that he had already interrogated the informant immediately on the lodging of the F.I.R. which. to repeat, was admittedly lodged in his presence. 30. Once the report was lodged in the presence of the Investigating Officer, who had also interrogated the informant immediately on the lodging of the F.I.R. in which it was mentioned that the deceased was also assaulted by "Banka", it is not understandable why the same Investigating Officer while preparing the Inquest Report would have mentioned "xksyh ekj dj gR;k djuk" against the column reading "lwpuk nsus okys ds dFkukuqlkj fjiksZV dk Lo:i dk Lo:i vkSj e`R;q dk dkj.k" against the column reading (translated into English it would mean, "substance of the report according to the statement of the informant and cause of death"). Another column of the inquest report reads as under:- " lwpuk nsus okys ds dFkukuqlkj fjiksZV dk Lo:i dk Lo:i vkSj e`R;q dk dkj.k " (translated into English it would mean: "date and time of handing over the dead body to the relative for burial or immersion in the river; Date and time of sending the dead body for medical examination at Sadar and the name of those officials in whose custody the dead body is sent. Cause of death noticed by the police officials on inspection of the dead body"). 31. It is against the above column that the Investigating Officer mentioned in the inquest report (in addition to mentioning the date and time of sending the dead body for post-mortem examination) the cause of death as "xksyh ekj dj gR;k djuk". It is mentioned in the inquest report that 5 persons of the locality were appointed as "Panch". Their opinion also was that the death was caused on account of the injuries on the person of the deceased. 32. Once it had come to the knowledge of the Investigating Officer that the deceased had also been assaulted by a "Banka' which was allegedly used by one of the appellants, there was no occasion for him not to mention the use of"Banka" in the inquest report unless it can be attributed to him that he, from the very beginning of the investigation, attempted to screen out or shield Ramanuj, who, according to the allegations in the F.I.R., was armed with "Banka". 33. 33. It may be contended that according to the recitals in the F.I.R., the deceased had caught hold of the "Banka" and, therefore, there was no injury caused on the person of the deceased which could .be attributed to the use of Banka. "Banka", which is a heavy sharp cutting weapon, was in the hand of Ramanuj and he had attempted to give a blow on the person of the deceased. Since the intention was to commit the murder, it can be reasonably inferred that the "Banka" was used with considerable force. If in that situation it was caught hold of by the deceased, serious wounds should have been caused on the hand of the deceased. Such an injury has not been noticed by the Investigating Officer on the person of the deceased which also would indicate that Ramanuj was sought to be screened out from the scene of occurrence. 34. It may be stated that the eye-witnesses in their statements made before the trial court had not stated that the deceased had caught hold of the "Banka". Both the witnesses, namely, Mangal (PW 1) and Chhotey Lal (PW 2) consistently stated that the deceased was assaulted by a "Banka" which was in the hand of Ramanuj. They did not say that the deceased had caught hold of the Banka. It would be relevant at this stage to refer to the statement of the Investigating Officer at page 53 of the paper book where he had stated that at the time of Panchayatnama he had come to know by which weapon had the deceased been killed but he did not come to know that the deceased was also assaulted by a "Banka". This is rather surprisingly curious as the F. I. R. allegedly had, by that time, been lodged at the Police Station in the presence of the Investigating Officer and where was a clear mention of the use of Banka in the said report. 35. Coming to the main story of the prosecution which is sought to he proved by examining two eye-witnesses, namely, Mangal (PW 1) and Chhotey Lal (PW 2), who, at the time of the occurrence, were going with the deceased, we have no hesitation, for the reasons to be recorded presently. that the story, as presented by the prosecution, is not reliable or believable. 36. that the story, as presented by the prosecution, is not reliable or believable. 36. Mangal (PW 1) after stating about the election to the office of Pradhan, which was lost by Abdul Ali and after giving out the details of the criminal cases pending against Abdul Ali and his associates which allegedly, was the cause of enmity, stated that a day prior to the incident in question the deceased had received a notice in respect of a resolution concerning vote of no confidence. In order to discuss the matters with. other members of the Gaon Sabha, Shanker Lal, who was the real brother of the witness, left his house with Mangal (PW 1) and Chhotey Lal (PW 2) for Tilokpur early in the morning at 7 or 7-30. They went to the house of Dwarika Baniya who was also member of the Gaon Sabha. After deliberations, Dwarika Baniya gave out that he would also accompany them particularly as he himself had not signed the motion of no confidence but then he said that they may proceed and that he would soon join them. They left the house of Dwarika Baniya. The witness had a Jhola in his hand while Shanker Lal and his uncle Chhotey Lal (PW 2) were empty handed, (illegible) house of Dhanendra Jain, Shanker Lal was shot at by Abdul Ali by his double barrel gun - Mustafa and Vikram, who were armed with countrymade gun also fired at him. Ramanuj assaulted the deceased with a "Banka". Shanker Lal fell down at the spot and died instantaneously. 37. The defence does not challenge that a resolution for the vote of no confidence was moved by Abdul Ali appellant and that it was carried through. What is challenged by it is that the occurrence did not take place in the manner alleged by the prosecution nor did it occur. at the time alleged by it. The prosecution story, as pointed out earlier, is that Shanker Lal, Mangal and Chhotey Lal had gone together to the house of Dwarika Baniya where the matter of no confidence was discussed and it was decided to either bring a stay order from the Panchayat Raj Adhikari, Barabanki or from the High Court at Lucknow. In that endeavour Dwarika Baniya was also to accompany the deceased as also Mangal (PW 1) and Chhotey Lal (PW 2). In that endeavour Dwarika Baniya was also to accompany the deceased as also Mangal (PW 1) and Chhotey Lal (PW 2). The occurrence took place soon after the deceased (with Mangal and Chhotey Lal) left the house of Dwarika Baniya. The time of occurrence, as given out by the prosecution, is 8-45 a.m. 38. An essential ingredient of the prosecution story is the visit to the house of Dwarika Baniya, (illegible) deceased (Shanker Lal) with his brother Mangal and Chhotey Lal but the prosecution has not, surprisingly or, may be, on account of its well known habit of leaving" lacunae", examined Dwarika Baniya as a witness in the case. The Investigating Officer, Sri Mohan Lal Pandey (PW 6) admitted in his cross-examination that he had interrogated Dwarika Prasad who, during investigation, had corroborated the prosecution story that the deceased along with Mangal (PW 1) and Chhotey Lal (PW 2) had visited his house. But he did not mention the name of Dwarika as a witness in the charge sheet because Dwarika Baniya did not say in his statement recorded under S. 161, Cr. P.C. that he had witnessed the occurrence. The explanation offered by the Investigating Officer for not mentioning the name of Dwarika Prasad as a witness in the charge-sheet is wholly unacceptable. Dwarika Prasad was an important witness for the unfolding of the prosecution story whose statement, if it supported the prosecution story, would have established that the deceased had visited his house along with Mangal (PW 1) and Chhotey Lal (PW 2) and that they had discussed the matter of "vote of no confidence" with him and had ultimately planned to go either to Barabanki or Lucknow to bring the stay order. It would have further established, and in our opinion, unquestionably, the reason why the deceased was found at the place in question on the date of occurrence and that too at the time alleged by the prosecution. Non-examination of Dwarika Prasad as a prosecution witness, is a serious infirmity, which looked into the background that' Dwarika Prasad has appeared as a defence witness in this case and has not supported the prosecution story, would again indicate that the investigation was tainted. 39. It may also be stated that the house of Dwarika Prasad Baniya was only 100 paces away from the place of occurrence as stated by PW 2 Chhotey Lal. 39. It may also be stated that the house of Dwarika Prasad Baniya was only 100 paces away from the place of occurrence as stated by PW 2 Chhotey Lal. Even then in the site plan (Ext. Ka-8) prepared by the Investigating Officer, house of Dwarika Baniya was not shown which by itself would not be fatal to the prosecution story but the non-examination of Dwarika Baniya does constitute a serious infirmity. 40. As pointed out earlier, the prosecution story was sought to be proved by the two eye-witnesses, namely, Mangal (PW II and Chhotey Lal (PW 2) both of whom are close relations of the deceased. Mangal I PW 1) is the real brother while Chhotey Lal I PW 2) is the real uncle of the deceased. The fact that they are near relations of the deceased would not by itself he a ground for rejecting their testimony but their statements would, nevertheless, have to he read with care and caution and subject to close scrutiny. 41. It is stated by both the eye-witnesses that Shaker Lal wanted to go either to Barahanki or Lucknow to bring the stay order in respect of the "no-confidence matter" regarding which it notice was issued to him a day prior to the occurrence in question. It is apparent that litigation in this country is a costly affair. A person would go to Court specially the High Court after having arranged for the money to meet the expenses involved in the institution of the case. Three persons, namely, Shanker Lal )deceased), his brother Mangal i PW I) and uncle Chhotey Lal (PW 2) were to go either to Barahanki or Lucknow, which would mean that apart from litigation expenses, travelling and other sundry expenses for three people should have been with the deceased. But the Investigating Officer recovered only 70 paise from the pocket of the deceased vide recovery memo (Ext. Ka-12) which was sealed in an envelope (Ext. 8). During the course of trial the envelope was opened in order to prove the recovery but only 5 coins of 10 paise each were found in the envelope. It it stated by Mangal (PW 1) that Shanker Lal had made arrangements for the expenses. Ka-12) which was sealed in an envelope (Ext. 8). During the course of trial the envelope was opened in order to prove the recovery but only 5 coins of 10 paise each were found in the envelope. It it stated by Mangal (PW 1) that Shanker Lal had made arrangements for the expenses. He first stated that Shanker Lal had the money with him but thereafter he stated that the money was with him, i.e. with the witness and that he had about 14 to 15 hundred rupees in his hag. He further stated that while leaving for the Police Station he had handed over the hag to his uncle Chhotey Lal and admitted that when the Investigating Officer came at the spot, (illegible) containing money was still with Chhotey Lal, (illegible) however, did not show the hag to the Investigating Officer nor did the Investigating Officer made any enquiry about the "Jhola" (bag) from the witness. He further stated that all the papers were also in the hag, but he did not know which specific papers had been kept in the bag by Shanker. He had it given him the-notice" which was still in the pocket of Shanker's coat. He further stated that the hag was given to him by Shanker at their house itself. He further stated that sometimes Shanker himself kept the money or the papers but on that date Shanker had given (he bag to him to carry it. 42. This part of the statement indicates that the bag belonged to Shanker who had kept certain papers as also money in it and had given it to Mangal to carry it. If the papers kept therein and the money in the bag belonged to Shanker. the same should have been shown to the Investigating Officer so as to indicate to him that they were carrying all the documents and the estimated amount of expenses to go to Lucknow to bring the stay order. This material evidence would have corroborated the prosecution story on this point. 43. It may he noticed that on the question of obtaining a stay order, the statement of this witness is not consistent. It has been stated by him in para 12 of his statement that the stay order was obtained that day from the Panchayat Raj Adhikari. This material evidence would have corroborated the prosecution story on this point. 43. It may he noticed that on the question of obtaining a stay order, the statement of this witness is not consistent. It has been stated by him in para 12 of his statement that the stay order was obtained that day from the Panchayat Raj Adhikari. The witness further stated that if Shanker would have gone to the High Court he would have accompanied him there also. He stated that it was decided at their house itself that they have to go to obtain the stay order but it was not decided from where would the stay order be obtained, whether it was to be obtained from Barahanki or from the High Court. 44. Mangal I PW 1) further stated that the road in question passes through Tilokpur and that on both sides of the road there were houses but at the time of actual occurrence the persons present in the neighbourhood and nearby houses immediately closed their doors and only Mahadin and Mahahir had arrived at the spot on the cries raised by him. But he further stated that there were several other persons who had seen the accused running away. 45. Mahabir and Mahadin have surprisingly not been examined as witnesses in the case although it was stated by Mangal (PW I) that they had arrived at the spot. 46. After the occurrence, a written report was prepared. It is stated by Mangal that the report was written 4 or 6 steps away from the dead body of Shanker. The report is a written report which was scribed by Chhotey Lal (PW 2) on the dictation of Mangal as would appear from a perusal of the statement of Chhotey Lal (PW 2). Chhotey Lal thereafter read out the report of Mangal and obtained his signature on the report. Chhotey Lal further stated that he also had signed the report (Ext. Ka-1). It is not understandable why the report was "dictated" and that too by Mangal to Chhotey Lal, who was the real uncle of deceased and was accompanying him at the time of occurrence and had seen the whole of the occurrence. The facts were not to he told to Chhotey Lal for writing out a report. Chhotey Lal himself was an eye-witness. The facts were not to he told to Chhotey Lal for writing out a report. Chhotey Lal himself was an eye-witness. He himself had seen the whole of the occurrence as he was accompanying the deceased from the very beginning and was all along with him up to the time of actual occurrence. The conduct of Chhotey Lal in reading out the report, after it was prepared, to Mangal and thereafter obtaining his signature on that report is also surprising as Chhotey Lal was not a stranger who would have written out something which had not happened so that by reading out the report to hire, he wanted Mangal to ascertain and verify that what he had dictated was correctly taken down by him. 47. It is stated by Mangal that he took the written report to Police Station on a cycle. It will be seen that all the three persons, namely, Shanker Lal (deceased), Mangal (PW 1) and Chhotey Lal (PW 2) were going on foot. How and from where Mangal obtained a cycle so as to go to and return from the Police Station and what ultimately happened to the cycle are matters which are not clear. 48. The place, where the occurrence. allegedly took place, was a busy place, it being a thoroughfare on which persons as also vehicles like "Kharhkhara" (cart driven by horse) used to pass. There were houses at least on one side of the road but no person of the locality, where the occurrence took place, has been produced or examined to support the prosecution case. The explanation that the persons residing in the houses had closed their doors and windows is not believable and appears to be an attempt to indicate that the occurrence was not witnessed by any one except those who were as eye-witnesses at the trial. 49. The post-mortem on the dead body of Shanker Lal was performed by Dr. Ram Mohan (PW 4) and the ante-mortem injuries noticed by him have already been pointed out by us in the earlier part of the judgment. The first ante-mortem injury noted by Dr. Ram Mohan (PW 4) was a lacerated wound on the left side of the neck 4 cm. x 1t/z cm. muscle deep, 2 cm. above left collar bone: Injury No. 6 was a contusion on the right scapular region of the dimension of 1 cm. The first ante-mortem injury noted by Dr. Ram Mohan (PW 4) was a lacerated wound on the left side of the neck 4 cm. x 1t/z cm. muscle deep, 2 cm. above left collar bone: Injury No. 6 was a contusion on the right scapular region of the dimension of 1 cm. x 1 cm. while injury No. 7 was described as "two subcutaneous swelling 1 cm. x 1 cm." on the left side of chest 5 cm. below and lateral to the left nipple. Some rounded foreign body was felt under the skin. 50. It was stated 'by Dr. Ram Mohan (PW 4) that "Banka" is a heavy cutting weapon and its use causes incised wounds. He further stated that injuries Nos. 1 and 6 could be caused by a blunt weapon like a lathi. But he further clarified the statement by saying that injury No. 6, which was of the dimension of I cm. x 1 cm. would be caused by a lathi if the lathi was of that dimension. He further stated that injury No. 1 could be caused by upper portion of the reverse side of the Banka. Presence of lacerated wound and contusion on the body of Shanker was thus tried to be explained by the prosecution but the doubt still lingers in our mind as to the use of"Banka' for which prosecution story had not been consistent. It will be recalled that it was mentioned in the F.I.R. that the deceased had been assaulted by Ramanuj by a "Banka" but the deceased had caught hold of the "Banka'. Had the deceased really caught hold of the Banka he would have received injuries on the hand. It, therefore, appears just an attempt to explain away the absence of "Banka" (illegible) in the Panchayatnama (Inquest report) prepared by the Investigating Officer soon after the occurrence. The Investigating Officer, it will be recalled, had stated that at the time of preparation of the (illegible) report he had come to know by which weapon was the deceased killed but by that time he had not come to know of the use of "Banka'". When the eye-witnesses, namely, Mangal (PW 1) and Chhotey Lal (PW 2) were produced in the Court they stated in unequivocal terms that the deceased was assaulted, among others, by Ramanuj, who was armed with a "Banka". When the eye-witnesses, namely, Mangal (PW 1) and Chhotey Lal (PW 2) were produced in the Court they stated in unequivocal terms that the deceased was assaulted, among others, by Ramanuj, who was armed with a "Banka". They did not say that the deceased had caught hold of the "Banka". This weapon, namely, "Banka", could, it is stated by Dr. Ram Mohan (PW 4), have caused injury No. I if it were used from the reverse side. In this situation and in view of the factors, discussed above, it is not possible for us to place any reliance on the statements of Mangal and Chhotey Lal. 51. The deceased was a history-sheeter. This has been stated by the Investigating Officer Sri Mohan Lal Pandey (PW 6). It was stated by Chhotey Lal (PW 2) that one Chandra Bali of village Kurthara was murdered for which he and Shanker Lal (deceased) were prosecuted but both of them were acquitted. It was admitted to him that after the above incident the members of his family left the village and had settled in village Barayya. Chhotey Lal further admitted that one Sant Lal who was, at one time, Pradhan of village Tilokpur, had been killed and he (Chhotey Lal) was named as an accused in the report lodged at the Police Station but the police had not challaned him in that case. Chhotey Lal further stated that Shanker (deceased) had been prosecuted for theft, dacoity and murder in six or seven cases out of which two or three cases were pending at the time of occurrence. There was a case relating to the recovery of a gun and a case under the Arms Act was pending 'against Shanker. There was also a case under the' Gambling Act pending against him. Chhotey Lal further admitted that Shanker was prosecuted in a dacoity case by the police of Police Station Fatehpur. He admitted that there were several cases launched against Shanker by the police of P. S. Masoli but he was unable to give exact figures. 52. Mahadin, who is said to have reached at the spot at the time of occurrence in which Shanker was killed, was Shanker's witness in a case under S. 302, I.P.C. against Abdul All and Ramanuj and others. 53. 52. Mahadin, who is said to have reached at the spot at the time of occurrence in which Shanker was killed, was Shanker's witness in a case under S. 302, I.P.C. against Abdul All and Ramanuj and others. 53. As against the above, the defence examined Dwarika Prasad Baniya as DW 1, who stated that Shanker, his brother Mangal or uncle Chhotey Lal had not come to his house on the date of occurrence. He stated that on the date of occurrence at about 6 or 7 p.m. while he was going to ease himself he heard certain boys crying that Pradhan had been killed and that he himself had seen the dead body of Shanker on the passage towards the east of the village. Mangal or Chhotey Lal were not with the dead body. He sent the boys present there to the house of Shanker Lal to inform the other persons about Shanker s death. 54. In cross-examination he stated that he was, at no point of time, interrogated by the police in connection with the murder of Shanker. 55. This witness, as stated earlier, was an important witness for the unfolding of the prosecution case but he was not named as a witness in the charge-sheet nor was he produced at the trial. There is no reason to discard his testimony. 56. It has been indicated in the postmortem report that the stomach was empty while small intestine had laceration at places. The large intestine was reported to be full of faecal matter. This would indicate that it was probably some time in the early morning before Shanker had eased himself that he was done to death which was not seen either by Mangal (P.W. 1) or Chhotey Lal (P.W. 2) and that the dead body was suddenly noticed by Dwarika Baniya (D. W. 1) lying on the spot. 57. In view of the above discussion, wet are clearly of the opinion that the prosecution has failed to prove its case beyond all reasonable doubt against the appellants, who, on being given the benefit of doubt are entitled to be acquitted. 58. Capital Sentence Reference No. 3 of 1988 is rejected. The appeals are allowed and the conviction and sentence recorded by the trial Court are set aside. 58. Capital Sentence Reference No. 3 of 1988 is rejected. The appeals are allowed and the conviction and sentence recorded by the trial Court are set aside. Appellants in Criminal Appeal No. 506 of 1985 and the sole appellant in Criminal Appeal No. 517 of 1988 are on short-term bail. They need not surrender, their hail bonds are cancelled. Appellant Abdul Ali is in jail. He shall be, released forthwith unless required in connection with some other case.