JUDGMENT A.N. Dikshita, J. 1. The State of U.P. has filed this appeal against the judgment and order dated 5-12-1977 passed by Sri R. P. Jain, Sessions Judge, Etawah, acquitting Subhash Chand of the charges under sections 148 and 302 IPC and acquitting Dinesh Chand, Prabhash Chand, Sarvesh Chand, Piare Lal, Keshav Ram and Ram Autar of the charges under sections 14/ and 302 read with section 149 IPC. 2. The appeal was admitted in so far as Dinesh Chand, Subhash Chand and Prabhash Chand were concerned but it was dismissed with respect to Sarvesh Chand, Piare Lal, Keshav Ram and Ram Autar. The prosecution story in brief is as follows : The respondents and the other co-accused are residents of village Naugaon, P. S. Dibiapur, Etawah. appellant Dinesh Chand is an old Zamindar of the district and is also Pradhan of the village. He is also Manager of a college in Kanchausi Bazar. Dinesh Chand and Sarvesh accused are cousins while Subhash Chand and Prabhash Chand are brothers and are nephews of Dinesh Chand appellant. Co-accused Piare Lal is the father of Keshav accused. Ram Autar accused is a relation of Dinesh Chand while Pyare Lal and Keshav accused are his helpers. 3. ADMITTEDLY Dinesh Chand was the Zamindar of present plot no. 820 corresponding with old plot no. 672. However, during the consolidation proceedings the plot went to one Chhotey Lal who executed a saledeed in favour of Smt. Mithani and she in turn sold it to Ram Autar Potter. This plot was sold by Ram Autar Potter in favour of Ram Autar son of Raja Ram (who is PW 1 in this case). The name of Ram Autar was mutated in the revenue records 4. On the south eastern corner of this plot was a mango tree. Dinesh Chand, however, started claiming ownership of this tree. The respondents Dinesh Chand, Subhash Chand and Prabhash as well as the acquitted accused Sarvesh, Pyare Lal, Keshav Ram and Ram Autar except Pyare Lal and Keshav, are Brahmins. Babu Ram, deceased, was the uncle of Ram Autar, PW 1. They are Dhanuks 5. Earlier services of Ram Autar and Babu Ram were required by the Brahmins of the village including the appellants in connection with the briths of babies in their families but such work was stopped by them 4-5 years prior to the day of occurrence. Babu Ram, deceased, was the uncle of Ram Autar, PW 1. They are Dhanuks 5. Earlier services of Ram Autar and Babu Ram were required by the Brahmins of the village including the appellants in connection with the briths of babies in their families but such work was stopped by them 4-5 years prior to the day of occurrence. This stoppage of work had resulted in strained relationship between them. On 12-5-76 around 1.00 or 1.30 p. m. Ram Autar was sitting near his mango tree when Dinesh Chand accused came there. Hot words were exchanged between the two regarding the ownership of the tree. Dinesh Chand accused left the place remarking that he would be shortly returning. After about 10-15 minutes Dinesh Chand, Subhash Chand, Prabhash Chand, Sarvesh Chand, Pyare Lal, Keshav Ram and Ram Autar came there. Subhash Chand was armed with a gun while the other accused were carrying lathis and spears. Emerging on the scene Dinesh Chand exhorted "AAO SALO TUMHEN PER DE DEIN" which resulted again in heated exchange of words between Ram Autar on the one side and Dinesh Chand and others on the other. Meanwhile Babu Ram, uncle of Ram Autar reached there. He too had some altercation with Dinesh Chand and his men. The verbal altercation between the two sides prompted Dinesh Chand to exhort the other accused persons to shoot the opponents. Subhash Chand then fired at Ram Autar who escaped but Babu Ram was hit and received firearm injuries. Putti Lal, Kamla Kori, Pati Ram and others witnessed the incident. After the occurrence the accused persons (including the respondents to this appeal) ran away. This incident occurred in the plot of Soney Lal. After the occurrence Shiv Ram, Mathura Prasad, Laxmi Narain and many other villagers arrived at the scene. Babu Ram injured was put on a cot and was taken to Kanchausi Railway Station wherefrom he was taken to Etawah. 6. A written report of the occurrence was lodged by Ram Autar on 12-5-1976 at 6.15 P. M. at P. S. Kotwali, Etawah. After the lodging of the report Babu Ram was sent to hospital. Babu Ram (son of Dariba resident of village Naugaon) was examined by Dr. 6. A written report of the occurrence was lodged by Ram Autar on 12-5-1976 at 6.15 P. M. at P. S. Kotwali, Etawah. After the lodging of the report Babu Ram was sent to hospital. Babu Ram (son of Dariba resident of village Naugaon) was examined by Dr. S. N. Lal, medical officer, District Hospital, Etawah, on 12-5-1976 at 6.30 P. M. The following injuries were found on the person of Babu Ram : "Gun shot wounds of entry multiple in an area 20 cm x 20 cm on right side of chest lower aspect and upper aspect of right side of abdomen (over liver area) each wound is 0.1 cm x 0.1 cm x abdomen cavity and chest cavity. Margins are inverted and ecchynosed. Kept under observation. X-ray advised. Duration fresh. By gunshot " His dying declaration was recorded by Sri Shambhu Nath Bajpai, S.D.M. Etawah, on 12-5-1976 at 8.25 P. M. which is reproduced below : The investigation was entrusted to Lala Singh, S. I. Dibiapur, PW 14, who reached the spot, prepared a site plan and recorded the statements of the witnesses. On 20-5-1976 the investigation was taken up by Station Officer Lok Nath Singh, PW 15. 7. On the same day i.e. 1-5-1976 another report was lodged at P. S. Dibiapur at 4.40 p. m by one Ram Gopal against Babbu, Ram Autar, Chandrabhan, Tulsi Ram, Panna and Shiv Ram, all residents of village Naugaon, P S. Dibiapur, district Etawah under sections 147/323/307 IPC. In this report Ram Gopal complainant mentioned that about 3 years back a bull was left in the village and it used to live there. Sometime in the mid-day of 12-5-1976 Babbu, Ram Autar, Chandrabhan, Tulsi Ram, Paona, Shiv Ram Dhanuks were beating it. When he (Ram Gopal) objected to this beating all the above persons started assaulting him with lathis, Danda and Kanta. On his making a noise Dinesh Chand Dube, Pradhan, and Nishesh Chand Dube who were returning from their fields scolded the Dhanuks whereupon Shiv Ram said that Panditji has come on a good occasion and there would not be a better opportunity than this to eliminate him Ram Autar who was holding a pistol fired at the Pradhan but the fire missed its target but hit Babbu (Babu Ram) who had come in between. Ram Gopal and the bull also received injuries. Ram Gopal and the bull also received injuries. The incident was witnessed by Jagat Narain, Chet Ram, Ram Nath and others. 8. It may be mentioned here that after the investigation a final report was submitted in the above case which was accepted by the court. After the necessary investigation on the report lodged by Ram Autar a charge-sheet was filed in court. 9. All the accused persons pleaded not guilty and were accordingly put to trial. They stated that they had been falsely implicated in the case on account of enmity and Peshbandi. Dinesh Chand appel ant has stated that while going from his Khalyan to his house he found an altercation between Ram Autar Dhanuk and others on the one hand and Ram Gopal Charaar on the other about the beating of the bull. Ram Autar and others were beating Ram Gopal. Dinesh Chand scolded Ram Autar and others. Ram Autar then fired a pistol shot but it resulted in injuries to his uncle Babu Ram. Babu Ram expired on 13-5-1976 in the morning. 10. The postmortem examination on his body was conducted the same day at 5.5 P. M. by Dr. R. V. Singh PW 7. The following ante mortem injuries were found on the person of Babu Ram : "Multiple gunshot wounds of entrance in an area of 7" x 7" size 1/4" x 1/4" x skin to cavity deep on the right side lower chest and right side upper abdomen. 3-1/2" below the nipple, 2" from the midline and 4" above and out to umblicus. Margins lacerated and inverted." Dr. R. V. Singh was of the opinion that death was caused due to shock and haemorrhage as a result of injury to lung, liver, stomach, intestines and kidneys which were caused by firearm. 11. In support of the prosecution story Ram Autar, PW 1, Putti Lal, PW 2, Kambal Kori, PW 3, and Smt. Rajjo, PW 9, were examined as eye-witnesses. 12. Sri Shambhu Nath Bajpai who had recorded the dying declaration of Babu Ram was examined as CW 1. Sri Vidul Ram, Ballistic Expert, stated that the empty cartridge Ex. 1 which is alleged to have been found on the spot was fired from the gun Ext. 2. 13. Ram Autar, PW 1, has supported the prosecution story as detailed above. Sri Shambhu Nath Bajpai who had recorded the dying declaration of Babu Ram was examined as CW 1. Sri Vidul Ram, Ballistic Expert, stated that the empty cartridge Ex. 1 which is alleged to have been found on the spot was fired from the gun Ext. 2. 13. Ram Autar, PW 1, has supported the prosecution story as detailed above. He has stated that after the exchange of altercation between him and Dinesh Chand and after Dinesh Chand had administered a threat that he would return shortly he continued sitting there at the spot for 15 minutes by which time Dinesh Chand returned with the other accused. It has been stated by him that Subhash was armed with a gun while the other accused were carrying lathis and spears. He is not in a position to state as to which of the accused was wielding lathi or the spear though, he has stated that two of the accused were wielding lathis while the other two were armed with spears. Such a wavering statement clearly spells doubts in regard to the incident. He further states that when the altercation was going on his uncle Babu Ram came and enquired of the accused persons as to why they were claiming the ownership of the tree and inviting quarrel about the ownership. On an exhortation by Dinesh Chand, Subhash fired at Babu Ram. Ram Autar, PW 1, has stated that Subhash pointed the gun at him and wanted to kill him but immediately on the firing of the shot he moved a little from the place unhurt but the shot hit Babu Ram who was injured. There is not an iota or even a whisper of such an allegation in the report. Non mentioning of such a significant fact in the report clearly points out that had this witness been present on the spot such a reference of the allegation would have been made in the report. Even this allegation is not found in his statement under section 161 CrPC. 14. This witness in his cross examination has stated that Babu Ram was injured in the field in front of the door of his house but in the first information report Ex ka 1 lodged by him he has mentioned that his uncle Babu Ram ran towards his house and when he had reached in front of his door he was fired at. The investigating officer did not find blood at the place as suggested by this witness. In front of the door of Babu Ram there is a Chabutra and some vacant land. Then there is a chak road and then in the field of Sone Lal where blood was found. It is thus manifest that there is inconsistency in the allegation as set forth in the first information report with that of the blood found by the investigating officer in the field of Soney Lal. No credence can be attached to the testimoney of this witness. The first information report thus does not stand corroborated by his statement in court. Another material aspect which cannot be overlooked is that the place of occurrence is in the circle of P. S. Dibiapur. A police out post is located at Kanchausi of P. S. Dibiapur. No report of the incident was lodged at the police out post Kanchausi. Instead of lodging the report Ram Autar, PW 1, has stated that on account of the serious condition of his uncle Babu Ram he was rushed to the Hospital. He has no doubt stated that from the spot he and other villagers went to Kanchausi Railway Station where from they boarded a train for Etawah. They came across Dibiapur in the way where there is a hospital. Had the report been lodged at P. S. Dibiapur, Babu Ram could have been medically examined and administered necessary medical help there. Moreover, when the condition of Babu Ram was serious information could have been sent to P. S. Dibiapur about the occurrence either through the Chaukidar or through the son of Babu Ram who was all through accompanying them. But this was not done. In view of the above there is no credibility in the testimony of this witness which deserves to be discarded. 15. Putti Lal, PW 2, has tried to support the prosecution story as set up by Ram Autar, PW 1. He has seated that at the time when heated exchanges were heard by him he was at his Khalyan at a distance of about 50-60 yards. From that distance he saw that Subhash was armed with a gun and the rest of the accused were welding lathis. But he immediately changes his statement saying that Sarvesh also had a spear. He has seated that at the time when heated exchanges were heard by him he was at his Khalyan at a distance of about 50-60 yards. From that distance he saw that Subhash was armed with a gun and the rest of the accused were welding lathis. But he immediately changes his statement saying that Sarvesh also had a spear. He has further stated that at the time when verbal hot altercations were exchanged between Ram Autar on the one hand and Dinesh Chand and others on the other, Shiv Ram, Kamla, Pati Ram, Jaisi Ram etc. were present but this belies the case of Ram Autar, PW 1, who has not referred to the presence of these persons at that time. He is not very clear as to on which side of Babu Ram, Subhash was at the time of the firing. He states that Babu Ram had received the gunshot injury when he was 10-12 paces from his door and Subhash had fired from a distance of 15 paces from the mango tree in the plot of Soney Lal. Implicit reliance cannot be placed on the statement of Putti Lal, PW 2, as it is borne out from his cross-examination that he is not favourably inclined towards the accused on account of his land being taken away by one Jagdish Narain Dube, cousin of Subhash accused. His testimony hardly inspires confidence and no reliance can be placed on it. 16. Kambal Kori, PW 3, has made an effort to support the prosecution story. In his examination-in-chief he has stated that Dinesh Chand appellant asked Ram Autar not to pluck mangoes from the tree but this part of his statement is at variance with the case of Ram Autar, PW 1. He has further stated that Babu Ram came after half an hour after the appearance of the accused which is very improbable as the occurrence would not have taken more than a few minutes and more so there was hardly any occasion for Babu Ram to come after half an hour. Further, Ram Autar, PW 1, has stated that as the altercation between him and Dinesh Chand started Babu Ram arrived at the spot. Had this witness been present on the spot be would not have given such a statement which is contradictory to the prosecution story. Further, Ram Autar, PW 1, has stated that as the altercation between him and Dinesh Chand started Babu Ram arrived at the spot. Had this witness been present on the spot be would not have given such a statement which is contradictory to the prosecution story. Another salient feature of his statement ii that he states that Subhash fired at Babu Ram. He nowhere states that the gun was aimed at Ram Autar and that Babu Ram was hit by chance. It is borne out from the record that this witness is professional and has appeared in a number of cases for the prosecution. Initially he does not admit this assertion but later on concedes that he had appeared as a prosecution witness in few other cases. It cannot be said that he is an independent witness. His evidence thus deserves to be rejected. Smt. Rajjo, PW 9, is another eye witness of the occurrence. She is the wife of Rajaram brother of the deceased Babu Ram and has tried to support the prosecution version. Her name finds no mention in the first information report. From her house which is admittedly in the Abadi the scene of occurrence is not visible. She is not able to state as to since when she is occupying the new house. The eye sight of this witness is miserably weak, though she has denied the suggestion. However, the court below has found that her eye sight is very weak it is thus difficult to believe that she had seen the occurrence as narrated by her. She has stated that Babu Ram fell just near the chabutra but as stated above Babu Ram was found to have fallen down in the field of Soney Lal as shown by the investigating officer. There is hardly any credence in her testimony. 17. Mathura Prasad, PW 8, has stated that on hearing the sound of the gun he went to the scene of occurrence where he found Babu Ram having received a shot and lying in the plot of Soney Lal. This witness was accompanied by Rajaram, Ram Autar and Soney Lal. Ram Autar, Shiv Lal, Putti Lal and Nathu Ram had told this witness that Subhash had fired a gunshot at Babu Ram under the orders of Dinesh Chand. He never told about this fact even to the investigating officer. This witness was accompanied by Rajaram, Ram Autar and Soney Lal. Ram Autar, Shiv Lal, Putti Lal and Nathu Ram had told this witness that Subhash had fired a gunshot at Babu Ram under the orders of Dinesh Chand. He never told about this fact even to the investigating officer. He himself denies: that his statement was ever recorded by the investigating officer. He admits that he did not mention about this information to anyone else. His testimony thus deserves rejection. 18. Vidul Ram, PW 4, is a Ballistic Expert and has stated that the empty cartridge was fired by the licensed gun Ex. 2 belonging to Subhash. The recovery of the empty cartridge at the spot is highly doubtful. The gun was not automatic and it does not eject the empty cartridge after the shot is fired. There was hardly any occasion for Subhash to unload the gun and throw the empty cartridge. This empty cartridge was handed over to the investigating officer on 13-5-1976 by Smt. Rajjo, PW 9. The statement of Smt. Rajjo, PW 9 on the point does not inspire confidence that after the crowd melted away she found the empty cartridge on the spot which she gave to the investigating officer the next day. However, she is not definite as to whether Ex. 1 is the same cartridge which was found by her on the spot. She has tried to state that the cartridge found on the spot by her was similar to the cartridge Ex. 1. It appears to be very unconvincing that the huge crowd which had assembled at the spot did not notice the empty cartridge but it was found by Smt. Rajjo, PW 9, though admittedly she is having a very weak eye sight. The cartridge was shown to Mathura Prasad, Shiv Ram and others by Smt. Rajjo but she did not ask them to deposit the same at the police station. Moreover, though Mathura Prasad, PW 8, has stated that Ex. 1 was handed over by Smt. Rajjo to the investigating officer in his presence but none was asked to identify the same nor any identification proceedings were carried. It is thus highly doubtful that the empty cartridge Ex. 1 was found on the spot. The dying declaration of Babu Ram deceased was recorded but intriguingly the prosecution did not produce; it nor proved it. It is thus highly doubtful that the empty cartridge Ex. 1 was found on the spot. The dying declaration of Babu Ram deceased was recorded but intriguingly the prosecution did not produce; it nor proved it. It was at the instance of the accused persons that it was [brought to the notice of the court that such dying declaration was recorded, [ft seems that this valuable evidence was being suppressed by the prosecution lest. it may shatter its case. A perusal of the dying declaration Ex. C-1 shows that Babu Ram was injured when he was standing on his chabutra. This is not at all the case of the prosecution. In the dying declaration Prabhash, Subhash, Dinesh and Sudesh are mentioned. Sudesh was not even charge sheeted. The prosecution implicates Dinesh Chand, Subhash, Prabash, Sarvesh, Pyare Hal, Keshav Ram and Ram Autar. Further the dying declaration reveals that Prabhash had a gun while the prosecution version is that Subhash was holding the gun and two of them had spears while the rest carried lathis. In the dying declaration it is mentioned that Subhash and Sudesh had kattas but the prosecution story has nowhere disclosed that any of the accused had katta. It appears from the dying declaration that the deceased asked the accused not to pluck the mangoes from the tree but such is not the case of the prosecution which rests on the dispute as regards the ownership of the mango tree. There is no mention in the dying declaration that Subhash fired at Babu Ram on the exhortation of Dinesh Chand which precisely is the case of the prosecution. Moreover, there is no mention of the presence of Ram Autar, PW 1, in the dying declaration. Significantly it is clear from a perusal of the dying declaration that the witnesses reached the place of occurrence on the alarm raised by Babu Ram. Nathu Ram was the first to reach and then he was followed by Sahukar and Chhotey Lal. In the dying declaration there is no mention that Ram Autar, Putti Lal etc. were present at the time of the occurrence. Had they been present at the spot at that time such a mention would have been made in the dying declaration. The dying declaration runs counter on very many points to the prosecution story. It is also not corroborated by any other evidence. were present at the time of the occurrence. Had they been present at the spot at that time such a mention would have been made in the dying declaration. The dying declaration runs counter on very many points to the prosecution story. It is also not corroborated by any other evidence. The occurrence took place on 12-5-76 between 1.00 and 1.30 p.m. while the dying declaration was recorded at the District Hospital, Etawah, at 8.15 p.m. on the same day. Babu Ram who was being taken from the village to Kanchausi could have lodged the report at police out post Kanchausi or even on his way to Etawah at P. S. Dibiapur but that was not done. As such implicit reliance cannot be placed on this dying declaration which suffers from improbabilities. 19. Kambal Kori, PW 3, has admitted that after the death of Bansi a bull was released in the village and this bull used to damage the crop. Ex. kha. 2 is the report lodged by Ram Gopal which reveals that Babu Ram was injured as a result of the fire shot by Ram Autar. A final report was lodged in this case, as stated above. 20. In view of the above the acquittal of the respondents by the trial court was fully justified. In the result the appeal fails and is dismissed. Appeal dismissed.