JUDGMENT G. Malaviya, J. - Accused Lala Ram and Sheo Ratan were tried in Session Trial No. 447 of 1976 by VIII Addl. Sessions Judge, Kanpur. Whereas Sheo Ratan was acquitted of the charge u/s. 302/34, Indian Penal Code and in the alternative u/s. 302/109, Indian Penal Code, Lala Ram was convicted u/s. 302, Indian Penal Code and was awarded life imprisonment. Against the said conviction the present appeal has been filed by Lala Ram. 2. According to the prosecution case there was enmity between accused Lala Ram and deceased Ram Sanehi and his family. It is alleged that on 30.1.1975 at about 9.30 a.m. when deceased Ram Sanehi was returning home from the village and arrived near the house of Devi Prasad in village Kaitha, on the exhortation of Sheo Ratan, Lala Ram fired at him with his SBBL gun which hit Ram Sanehi, who fell down. It is further alleged that one more shot was fired in the same direction. However on the alarm being raised by the witnesses, the accused persons who were at that time sitting and had fired from the plat form of Lala Ram fled away in the north east direction. When the witnesses went near Ram Sanehi they found him dead. Consequently a written First Information Report of the incident was lodged by brother of the deceased Ram Swaroop at Police Station at a distance of 11 miles at 12.25 noon on the same day naming the accused persons. The chik was prepared by P.W. 4 clerk constable Udai Bhan Singh. Thereafter the investigation of the case was taken up by P.W. 5 Shiv Raj Singh Tyagi. The incident is alleged to have been witnessed by complainant Ram Swaroop brother of the deceased, Ishwari, uncle of the deceased as also by Pyare Lal and by one Sukhdeo. 3. When the Investigating Officer went to the spot he found the body lying on the spot. After preparing the inquest the body was sent for the post mortem examination. The Investigating Officer also collected the blood stained and plain earth from the spot. The Investigating Officer, before sealing the body had got the clothes on the person of the deceased comprising of a woollen jacket, a terrycot shirt, taken out from the body of the deceased which was smeared with blood. A recovery memo was prepared in the presence of the witnesses who signed it. The Investigating Officer, before sealing the body had got the clothes on the person of the deceased comprising of a woollen jacket, a terrycot shirt, taken out from the body of the deceased which was smeared with blood. A recovery memo was prepared in the presence of the witnesses who signed it. The Investigating Officer searched the accused persons in their house but they were not traceable. He recorded the statement of the witness Ram Swaroop and prepared the site plan. As the accused persons were not traceable the Investigating Officer made, report under Section 82, Cr.P.C. for attachment etc, There after the said Investigating Officer Shiv Raj Singh Tyagi was transferred. The investigation was however completed by Station Officer Chhote Lal till submitting of the charge sheet in the case. 4. The post mortem on the body of Ram Sanehi was conducted on 31.1.1975 by P.W. 6 Dr. S.S. Agrawal. He found one gun shot wound of entry 3 cm. X 2 cm X abdomenal cavity deep over right hypochondrium region 12 cm. below and medial to the right elbow with its edges inverted and bruised. He found another fire arm wound of exist 6 cm X 3.2 cm X abdomenal cavity deep on the right side of the back in the lower third part. He also found one abrasion of 0.5 cm. X 0.3 cm. in the abdomen about 4 cms, on the right side below injury No. 1. In the internal examination the doctor found 8th and 9th ribs fractured. The small and large intestines were also found empty. According to the doctor the probable time of death was one and half day. In the opinion of the doctor the injury in the ordinary course was sufficient to cause death of the deceased. 5. In the trial the prosecution apart from the formal witnesses examined Pyare Lal P.W. 1, Ram, Swaroop informant and brother of the deceased as P.W. 2, and Ishwari uncle of the deceased as P.W. 3. The accused who denied the charge did not examine any witness in his defence. 6. On appraisal of evidence the Sessions Judge found the evidence of Ram Swaroop to be not worthy of credence as his house was more than 250 paces away from the place of the incident, and his reaching the place of occurrence after hearing about the murder was more probable. 6. On appraisal of evidence the Sessions Judge found the evidence of Ram Swaroop to be not worthy of credence as his house was more than 250 paces away from the place of the incident, and his reaching the place of occurrence after hearing about the murder was more probable. We have gone through the reasoning's of the learned sessions Judge and find ourselves in agreement with the same. Consequently evidence of Ram Swaroop is hardly of any consequence in this case as against the accused persons. P.W. 1 Pyare Lal in his deposition had stated that on the date of the incident he had gone to the shop of Ganga Charan Seth to purchase betels in the morning. When he was returning to his house and was about 5 or 6 steps north to the house of Lala Ram accused, he saw the incident in which he saw Lala Ram sitting on Ids chabutra along with Sheo Ratan accused. Lala Ram had a gun. Deceased Ram Sanehi was coming towards the house of Lala Ram from the opposite direction. On the exhortation of Sheo Ratan that the enemy was coming and he should be killed, Lala Ram fired on Ram Sanehi with the result that Ram Sanehi fell down in front of the house of Devi Prasad. Lala Ram had fired two shots. At the same time from the south side Ram Swaroop and his brother-in-law Ram Sanehi (son of Mewa Lal) were also coming and witnessed the occurrence. The incident was also seen by Ishwar Deen who had also arrived near the platform of Lala Ram by the time the deceased was fired at. This witness also stated that there was enmity existing between the families of Lala Ram and Ram Sanehi. In cross examination while showing ignorance whether Durga Prasad alias Fattu was the son of Shanker's aunt (Bua) he had admitted that there was a litigation between him and aforesaid Durga Prasad in the Civil Courts in respect of his house. This witness also admitted that after this incident his brother Sewa Ram had been murdered in which Ram Swaroop informant of this case was also a witness. It was also admitted by this witness that at the place of murder six people, not including children, were residing in the house of Devi Prasad. This witness also admitted that after this incident his brother Sewa Ram had been murdered in which Ram Swaroop informant of this case was also a witness. It was also admitted by this witness that at the place of murder six people, not including children, were residing in the house of Devi Prasad. Eleven persons were living in the house of Raghubar out of which 5 or 6 were living in it at the time of the incident. Four-five persons were living in the house of Ganga Deen Gadaria and four persons were living in the house of Kakirs. He had admitted that no person had come out from any of the aforesaid houses. This witness had also admitted that the place of the incident could not be seen from his residence. This witness for the first time also stated that firing on the victim was done by Lala Ram while standing. This witness rebutted the suggestion that the incident had taken place at the time of dawn and the accused persons were nominated in the First Information Report after half an hours deliberation as it was suspected that they alone must have committed the murder on account of enmity which they mustered against the family of the victim P.W. 3, Ishwari was admittedly the uncle of the deceased. He also supported the prosecution case. He had stated that Sheo Ratan accused was the uncle of Lala Ram and that the two accused were on good terms. It was further stated by him that there was.enmity between the family of the accused as also informant. This witness stated that the deceased had returned from Babhnoli a day earlier where had gone about 5 or 6 days back. However he did not meet the deceased on the morning but had merely seen him going out on that day. This witness further admitted that he used to sleep on atari of his house. This witness also said that he used to attend the call of nature in the morning at 4 a.m. and the deceased Ram Sanehi also used to attend the call of nature before the sunrise. This witness further admitted that he used to sleep on atari of his house. This witness also said that he used to attend the call of nature in the morning at 4 a.m. and the deceased Ram Sanehi also used to attend the call of nature before the sunrise. While corroborating the prosecution case this person had admitted that after he had heard Sheo Ratan exhorting Lala Ram to kill Ram Sanehi he had rushed to that side and when he was 5 or 6 steps towards his house from the house of Lala Ram the first shot had been fired. This witness also admitted that the blood had soaked the clothes of the deceased. The witness had however denied the suggestion that he had not seen the incident and was making a false statement or that the incident had taken place early in the morning at about 5 or 5.30 when it was still dark. 7. We have heard Sri Rakesh Dwivedi learned counsel for the appellant as also Sri P.S. Adhikari learned Assistant Government Advocate. 8. It has been contended by Sri Dwivedi that in view of the fact that the deceased was not putting on any pajama or pant and was only wearing an underwear and langot, which were also found to be blood stained, along with his shirt and jacket, it is obvious that the deceased had merely gone in the morning to attend the call of nature and was returning thereafter in the early part of the day when he was shot at. He also derives corroboration from the post-mortem report which shows that the small intestine as also the large intestines were empty. It is contended by the learned Counsel for the appellant that this establishes that the deceased had not even taken anything in the morning as is normally done by the villagers after washing their mouth in the morning. Commenting on the statement of P.W. 1 that he was a partisan witness along with the fact that the other witness P.W. 3 Ishwari was the own uncle of the deceased, learned counsel for the appellant says that not examining other independent witnesses has assumed great importance in this case. Commenting on the statement of P.W. 1 that he was a partisan witness along with the fact that the other witness P.W. 3 Ishwari was the own uncle of the deceased, learned counsel for the appellant says that not examining other independent witnesses has assumed great importance in this case. Learned Counsel for the appellant also asserts that the prosecution case that the deceased had been hit by a single barrel gun is not correct and the injuries which were found on the persons of the deceased were clearly indicative of the fact that it was a shot made by a rifle. He also relies on the fact that the investigating officer neither recovered nor found any bullets or pellets on the spot which too goes to suggest that the theory of two fires etc. was all a concoction based on the facts that the Investigating Officer had seen another gun shot wound also on the person of the deceased which really was the wound of exit and which he had apparently mis-understood as a case of two shots by a fire arm. Relying upon these circumstances learned Counsel for the appellant asserts that in every probability the deceased had been hit in the early hours of the morning and no person had seen the incident, and as there was enmity between the deceased and the accused persons out of suspicion the appellant along with other co-accused were nominated in the First Information Report. 9. On the other hand Sri. P.S. Adhikari stated that this was a day time incident which had taken place at 9.30 a.m. in the morning. The First Information Report had also been lodged promptly at 12.25 hrs. on the same day in which the accused persons had been nominated. Sri. Adhikari further asserts that the incident having taken place in the heart of a village there was no possibility of any mistakes identity. It is further asserted that the solitary role of shooting having been assigned to Lala Ram and the witnesses having categorically deposed that they had seen Lala Ram as the person who had shot at Ram Sanehi, there is no reason why the evidence of the eye witnesses should not be believed. We have given our anxious considerations to the submissions made by the respective counsel. We have given our anxious considerations to the submissions made by the respective counsel. However we do feel that in this case the exit injury clearly indicates that the victim had been shot at by rifle and not by a single barrel gun. It will be relevant to mention that in the site plan the place of shooting has been shown to be from a distance of about 21 paces and even according to the prosecution evidence the firing had been re sorted to from a distance of about 15 paces. In the normal circumstances after the firing had been made by a single barrel gun there should have been dispersal but the injury clearly indicates that there was no dispersal. On the contrary the exit wound also is a typical wound which is caused by a rifle's bullet. Consequently the allegation of the prosecution witnesses that the victim was shot at by Lala Ram by a single barrel gun is rendered absolutely doubtful. We are also in agreement with the submissions of the learned Counsel for the appellant that the post-mortem report of the deceased shows that the stomach contained nothing. This indicates that the incident might have taken place early in the morning. It will be relevant to mention here that on the basis of the post-mortem examination P.W. 6 Dr. S.S. Agrawal had stated that the deceased could have died in the morning at about 3 A.M. also. Hence the fact that murder was committed when the deceased was returning after attending the call of nature appears to be more probable. In this background the fact that despite other independent persons having their houses in the vicinity, who normally could be the natural witness of the incident, had the occurrence taken place inside the village at 9.30 in the morning, coupled with the fact that not one of these persons have come out to support the prosecution case, also indicates that the incident had in fact not taken place at the time as is alleged by the prosecution; and since the independent witnesses were not prepared to support the prosecution theory about the incident taking place at 9.30 A.M. in the morning and their having seen the involvement of the accused in this case, the prosecution did not examine them in this case. In this background it is not safe to rely upon the testimony of P.W. 1 Pyare Lal and P.W. 2 Ishwari inasmuch as they are both partisan. The result is that the participation of the accused in the murder of Ram Sanehi son of Tulsi Ram is rendered not free from doubt. Accordingly the accused Lala Ram is entitled to benefit of doubt. 10. Accordingly this appeal is allowed. The conviction and sentence of Lala Ram u/s 302/34, Indian Penal Code for committing the murder of Ram Sanehi son of Tulsi Ram is set aside. He is on bail. He need not surrender. His bail bonds are discharged.