JUDGMENT R.S. Saksena J. (On difference of opinion between H.C. Mital and M.M. Lal, JJ. - Two persons, namely, Babu Ram and Megh Nath, have assailed, by means of this appeal, their conviction and sentence recorded under Sections 148 and 102/149 of the Penal Code by the then, III Additional Sessions Judge, Mainpura by his judgment and order dated the 14th of October, 1978. The appeal was heard by two Hon'ble Judges of this Court, who agreed that there is merit in the appeal filed by Babu Ram. Per their opinion separately recorded, Babu Ram, appellant, has wrongly been held guilty of the offences referred to above by the trial court. Each has, therefore, opined that Babu Ram is entitled to acquittal on all the charges framed against him. There has, however, been a difference of opinion between the two Hon'ble Judges insofar as the appeal of Megh Nath is concerned. Therefore, the matter has been referred by the Hon'ble the Chief Justice for my opinion. 2. I have heard the learned counsel for the parties and have carefully considered the material on record, the circumstances and the probabilities of the case. 3. The fact that Ranvir Singh of village Gopalpur, Police circle Asuncha, district Mainpuri, was fatally wounded on the 16th of September 1975 as a consequence whereof he died shortly thereafter, while being carried to the police station, is not open to doubt or suspicion. He had received wounds on his face and chest region caused by firing shots from firearm. Accepting the medical evidence let in by the prosecution to this effect the learned trial court has held that the prosecution has established beyond doubt the date of occurrence in which Ranvir Singh suffered fatal wounds, the identity of the deceased and the cause of his death, which was homicidal. This finding was not assailed before me on behalf of the appellants and I find no infirmity therein. 4. A written report was produced at police station Kurawali, district Manipuri at about 10 P.M. by Jaipal Singh (P.W. 1), brother of the deceased, which, in short, recites that 12 persons including the appellants had formed an unlawful assembly to end the life of Jaipal Singh on the said date at about 5.30 p.m. in their own village and had come to his Chaupal to implement the evil design. The further recital of the. The further recital of the. report is that on the exhortation of Babu Ram (appellant,) Megh Nath and Khushi Ram had fired shots at Ranvir Singh at his Chaupal in the village. The contents go to further show that although Jaipal Singh (P.W. 1) was the main target, the persons who formed unlawful assembly did not touch him on that date and left the place saying that their main object, namely, the killing of Jaipal Singh will be achieved on some other occasion. 5. The crime was registered and the investigation that followed resulted in the submission of charge-sheet against all the 12 persons named in the report as participants of the commission of the crime, as a consequence whereof they were prosecuted but the trial ended in the conviction of only two of them, namely, the appellants. Each appellant has been awarded sentence of regorous imprisonment for a period of two years under the first and imprisonment for life under the second count referred to above. One Khushi Ram, who had allegedly fired a shot died pending trial. The remaining 9 persons were found not guilty and were acquitted on the said charges. The State of U.P. has not preferred appeal against the acquittal of those persons. 6. As pointed out above, both the Hon'ble Judges have recorded an opinion that Babu Ram, to whom the role of exhortation was assigned, succeeds in his appeal. The alleged role is, in all probability, a false embroidery introduced by interested person (Jaipal, P.W. 1) with a view to feed fat his own grudge. I am also of the opinion that the implication of Bahu Ram in the case is a false one and he is entitled to acquittal. 7. It may be recalled that the learned trial judge has accepted the prosecution version and evidence in regard to the time and place of occurrence. This was assailed before me on behalf of the appellants. As the appeal can be effectively disposed of on the determination of the crucial question as to whether the evidence of Jaipal Singh (P.W. 1), Suresh Chandra (P.W. 2). This was assailed before me on behalf of the appellants. As the appeal can be effectively disposed of on the determination of the crucial question as to whether the evidence of Jaipal Singh (P.W. 1), Suresh Chandra (P.W. 2). Diledar Singh (P. W. 4) and Pal Singh (P.W. 5), who have given an ocular account of the incident, is worthy of credence and acceptable, I do not think it necessary at all to enter into the discussion of evidence for ascertaining as to whether or nor the prosecution version in regard to time and place of occurrence is correct. 8. Before directly coming to the determination of the question posed above, I would like to point out that nine persons stand acquitted by the trial court on the foot of an observation, they are given benefit of doubt'. I feel there should have been a clear and categorical finding to the effect that they did not participate at all in the commission of the crime and were not present on the scene of occurrence, yet their names figure as accused in the report lodged by Jaipal Singh (P.W. 1), and this line was toed by all the above named witnesses with one voice at the trial. It is inconceivable that nine persons duly armed with deadly weapons stood as silent spectators and left the place without taking any steps for achieving the alleged common object. This is undoubtedly a false accusation which has-to he rejected without hesitation. 9. Further, the evidence of Jaipal Singh shows that he has the experience of criminal litigation, having figured either as an accused or a witness in criminal cases. His evidence also indicates that on account of murder of some members of his family, he was harbouring grudge against all the twelve persons, arrayed as accused who descend from one common ancestor and are occupants of a house. I am firm in my conviction that he clutched at the commission of crime as an opportunity to falsely implicate innocent persons with a view to feed fat his own grudge. My conclusion, therefore, is that those nine persons, who stand acquitted by the trial court, were not present and did not participate, in any manner whatsoever, in the commission of the crime of murder of Ranvir Singh. Likewise, Babu Ram has also been falsely named in the report assigning fabricated role of exhortation to him. My conclusion, therefore, is that those nine persons, who stand acquitted by the trial court, were not present and did not participate, in any manner whatsoever, in the commission of the crime of murder of Ranvir Singh. Likewise, Babu Ram has also been falsely named in the report assigning fabricated role of exhortation to him. This is, thus, a case where Jaipal Singh and his witnesses have without the slightest compunction dragged so many innocent persons to face trial for committing such a serious crime. The evidence of such persons against Megh Nath (appellant) has, therefore, to be read with a greater amount of care and caution. 10. It would not be out of place to observe that once we arrive at the aforesaid conclusion, it necessarily follows that there was no unlawful assembly. The conviction of appellants tinder S. 148 and with the aid of S. 149 of the Indian Penal Code is, therefore, bad in law. This aspect of the matter has not been considered at all by the learned trial judge. 11. However, in this background, let us scrutinise and evaluate the evidence of the witnesses who claim to have seen the occurrence. Jaipal Singh (P.W. 1) stated that he was sitting on a separate cot in Chaupal near Ranvir Singh (deceased) at the time of incident and that he saw Megh Nath, Khushi Ram (since dead), firing shots thereby mortally wounding Ranvir Singh. Was he really present at the relevant time, or he has assigned this role to the said two persons on the basis of his flight and imagination? It is his statement that the culprit had come to the Chaupal with the intention of settling scores with him alone and to finish him off there is a recital also to this effect in the First Information Report lodged by him. He too was within the firing range and reach of the culprits. One of the shooters could conveniently fire at him at that time when he was the real target. The suggestion of the prosecution is that because Ranvir Singh stood up and started shouting, shots were fired at him. The suggestion is too far-fetched to he seriously entertained. He too was within the firing range and reach of the culprits. One of the shooters could conveniently fire at him at that time when he was the real target. The suggestion of the prosecution is that because Ranvir Singh stood up and started shouting, shots were fired at him. The suggestion is too far-fetched to he seriously entertained. Shouting by a person other than the target who was within the reach of the killers was not sufficient to persuade the killers to abandon their goal and his, in the first instance, a person raising alarm. Assuming that the culprit first decided to finish off Ranvir Singh, there was no obstruction in their way in the achievement of the original object for which they had gone there, namely, to kill Jaipal Singh. I have already pointed out that Jaipal Singh was carrying experience of criminal litigation. He was, in all probability, conscious of the fact that it will be a weapon of attack in the armoury of defence and he shall have to satisfy the conscience of the court on the point as to why he was spared and allowed to go scot free. Therefore, we find an explanation from him to the effect that some members of his family sitting in the chaupal surrounded him and asked the culprits not to cause injury on his person and, interestingly enough, the culprits readily agreed. The explanation is being referred only for rejection. If we picture to ourselves the scene of occurrence along with the description given by him, we would find it fantastic ridiculous and unrealistic also. It is note-worthy that those 2-3 persons, who had allegedly come in front of Jaipal Singh begging for the life at the relevant time were none-else but the members of his family and I have already shown above that there was a bitter animosity between the two families. Such persons would, in normal course, run to save their lives and at any rate their request was, in all probability, liable to be rejected, when the only intention was to finish off this witness. This is also significant to note that none of these persons has come forward to make a deposition to that effect. Such persons would, in normal course, run to save their lives and at any rate their request was, in all probability, liable to be rejected, when the only intention was to finish off this witness. This is also significant to note that none of these persons has come forward to make a deposition to that effect. The explanation, it is also noteworthy, neither finds a mention in the First Information Report nor it was given out before the Investigating Officer and therefore, it cannot he swallowed without demur. I am firm in my opinion and conviction that this witness, Jaipal Singh, was not present at the relevant time at the Chaupal. It appears that after receiving the information of the murder of Ranvir Singh, he fabricated a story on the basis of his experience and decided to implicate almost all the male members of his family which was inimically disposed towards him. His evidence, therefore, does not inspire confidence and is rejected in its entirety. 12. Other witnesses, namely, Suresh Chander. Jiledar Singh and Pal Singh are of the group of Jaipal Singh. They stand obliged by Jaipal Singh in some or the other manner. The last two had been given land on patta by Jaipal Singh after his election as Pradhan Suresh Chander figured as a witness along with Jaipal Singh in a murder case. They are, thus, partisan and not independent witnesses. Further, each of these witnesses live at a distance of about a furlong from the alleged scene of occurrence. They are thus chance witnesses and it is idle to claim that while they were, per chance, passing that way. they heard alarm, which attracted them to the scene of occurrence. This is further noteworthy that only two shots were fired causing fatal wounds on the person of Ranvir Singh and the culprit/culprits immediately bolted away by the time any of such passers by could reach near the place of incident, the curtain must have fallen yet each claims to have seen the shooter not only in action but also in flight. It would not be out of place to recall that they implicated 10 innocent persons, obviously, under the influence and pressure of Jaipal Singh (P.W. 1). There is no guarantee of truth in regard to the remaining part of their claim. The witnesses are not dependable and trustworthy. Hence, their evidence is rejected. 13. It would not be out of place to recall that they implicated 10 innocent persons, obviously, under the influence and pressure of Jaipal Singh (P.W. 1). There is no guarantee of truth in regard to the remaining part of their claim. The witnesses are not dependable and trustworthy. Hence, their evidence is rejected. 13. From the foregoing discussion, it is abundantly clear that none of the above- named persons was present near about the scene of occurrence or had seen the occurrence and, therefore, their claim is to be jettisoned. True, the life of Ranvir Singh came to an end as a result of violence and the real culprit or culprits go unpunished, but the responsibility for this state of affairs is primarily on Jaipal Singh and, partly, on the investigating agency also which did not make sincere efforts to find out the guilty. The charge against Megh Nath fails and he is also entitled to acquittal. 14. For these reasons. I am of the opinion that the appeal has to be allowed in its entirety and the conviction of both the appellants and the sentences awarded to each of them are liable to be set aside and they are entitled to acquittal on all the charges. 15. The file be laid before the Bench concerned for necessary orders. Final order by Division Bench (H. C. MITAL AND M. M. LAL JJ. D/- 25-1-1990) :- 16. It was earlier heard and on 10th August, 1989 as there was difference of opinion between us, the papers were ordered to be laid before Hon'ble Chief Justice for nominating a Third Judge for his opinion, the opinion of Hon'ble Sri R.K. Saksena, J. has been received. According to him this appeal is to be allowed in entirety. 17. Accordingly this appeal is allowed and the conviction and sentence of Babu Ram and Megh Nath appellants under Sections 148 and 302/149, I. P.C. are hereby set aside. Both these appellants are held not guilty of the offences for which they stood charged and they are accordingly acquitted of the same. 18. The appellants are on bail. They need not surrender. Their bail bonds are cancelled and sureties discharged.