G. MALVIA, J, J. ( 1 ) RAM Lochan and Bhola, two brothers, have filed this appeal against the judgment and order of the Vth Additional District and Sessions Judge, Varanasi, dated 4/12/1978 in S. T. No. 174 of 1978 convicting the former under Section 302, I. P. C. and the latter under Section 302/34, I. P. C. and sentencing each of them to imprisonment for life thereunder. ( 2 ) THE prosecution story in brief is that Prabhu Narain Chaubey (deceased) was the father of Jugul Kishore, a High School Student (P. W. 1 - the informant ). They were living along with other family members in the house of one Nageshwar Prasad in village Mawaiya. There was some adjoining field of Nageshwar Prasad which was cultivated by Prabhu Narain Chaubey. The two accused were living in village Nawapura which was across the road, and bore ill-will against the informant and his father because they had an eye over the said land. The further case of the prosecution is that nearly a year. ago Ram Lochan accused wanted the cycle from Jugul Kishore and on his refusal Ram Lochan had slapped him. On a complaint by Jugal Kishore there ensued an altercation and scuffle between Ram Lochan and Prabhu Narain. The prosecutions further case is that a day before the occurrence Ram Lochan was getting grazed by his She-buffalo the Makai crop sown by Prabhu Narain and on the cattle being driven away, Ram Lochan had threatened that he would be taught a lesson. ( 3 ) THE prosecution case regarding the incident is that in the night between 213-8-1977 Jugul Kishore and Prabhu Narain Chaubey were sleeping on the roof on separate cots. A lantern was burning on the table of Jugul Kishores cot He had slept while studying leaving the lantern burning. At about 1 A. M. they were awakened because of some sound when they noticed the two accused, on the roof - Ram Lochan having a country-made pistol and Bhola having a lathi. At this point Prabhu Narain challenged them after getting up from his cot Bhola exhorted his brother to kill him. Ram Lochan thereupon fired at Prabhu Narain Chaubey who got injured. Prabhu Narain made an attempt to catch hold of the accused whereupon Ram Lochan fired again. Alarm was raised by both of them. At this point Prabhu Narain challenged them after getting up from his cot Bhola exhorted his brother to kill him. Ram Lochan thereupon fired at Prabhu Narain Chaubey who got injured. Prabhu Narain made an attempt to catch hold of the accused whereupon Ram Lochan fired again. Alarm was raised by both of them. The two accused then jumped nom the south-west corner and escaped. Ram Prasad of village Mawaiya, who was examined as P. W. 2 saw the accused running away in the light of his torch. Ram Prasad (P. W. 2) is a trolly-driver on whose trolly Jugul Kishore carried his father Prabhu Narain Chaubey to S. S. P. G. Hospital, Varanasi, and since the house of his brother-in-law Daya Shankar Pandey fell on the way to the hospital he picked him up for help. Prabhu Narain Chaubey was admitted in the hospital at 1. 45 A. M. as is clear from the Statement of Dr. Om Prakash (P. W. 5) who was the then Medical Officer-in-charge of the said hospital and had examined the injuries of Prabhu Narain Cnaubey on 3/8/1977 at 1. 45 A. M. and had found the following injuries Multiple gunshot wound of entry each about 1/4 cm x 1/4 cm x depth not probed on both sides of chest upper part of both side abdomen right shoulder and upper part of right arm with no wound of exit, with no blackening and no tattooing. Bleeding was present from the wound. The injury was kept under observation caused by fire-arm, duration fresh. Patient admitted. Police informed. Jugul Kishore then wrote a First Information Report (Ex. Ka-l) and lodged it at P. S. Jaitpura at 3-30 A. M. on 3/8/1977. A case was registered under Section 307, I. P. C. vide G. D. Entry Copy of which has been filed as Ex. Ka-5. Prabhu Narain Chaubey expired in the hospital on 10/8/1977 at 4 A. M. Where after the case was converted to one under section 302, I. P. C. The post mortem examination on the body of Prabu Narain Chaubey was conducted by Dr. S. K. Srivastava (P. W. 8) who found the following ante-mortem injuries1. Multiple small abrasion circular and semi-circular 2 t04 mm. (1) with scab in an area of 40 cm. x 35 cm. S. K. Srivastava (P. W. 8) who found the following ante-mortem injuries1. Multiple small abrasion circular and semi-circular 2 t04 mm. (1) with scab in an area of 40 cm. x 35 cm. on the front of the chest and abdomen more in the right side upper part, on cutting 16 shots were found. 2. Scabbed abrasion 2 cm. in front of right shoulder. 3. Scabbed abrasion three in number small circular of two m. m. in diameter on the right upper part in front. 4. Two small circular abrasion scabbed on the dorsum of left hand. 5. Four small circular scabbed abrasion on left thigh upper part. 6. One scabbed small circular abrasion right thigh upper part on cutting edge - sharge was found. In the opinion of the doctor death was caused due to shock and haemorrhage as a result of these injuries which were sufficient in the ordinary course of nature to cause death. The doctor had found 24 pellets (charra) from inside the abdomen region. After investigation primarily by Abdul Jabbar Khan (P. W. 6) who was the S. I. at that time of P. S. Jaitpura which was later completed by S. 1. Arvind Kumar who had submitted the charge-sheet (Exka-17) against the two accused, the C. J. M. Varanasi, committed the accused to the, Court of Sessions who convicted and sentenced the appellants as noted above. ( 4 ) BOTH the accused pleaded not guilty to the charge. They have denied the prosecution allegation that they wanted to take the land of Nageshwar Prasad and also denied the enmity with Prabhu Narain Chaubey. Ram Lochan accused admitted the demand of the cycle from Jugul Kishore but denied that it had resulted in any altercation and scuffle between him and Prabhu Narain Chaubey, Jugul Kishores father. Bhola appellant has specifically attributed enmity with Ram Prasad (P. W. 2) suggesting that the said enmity developed as Ram Prasad had appeared as a witness against Bholas uncle. ( 5 ) THE accused have examined Onkar Nath Singh (D. W. 1) to prove that the victim had told him that he had not seen his assailant. Bhola appellant has specifically attributed enmity with Ram Prasad (P. W. 2) suggesting that the said enmity developed as Ram Prasad had appeared as a witness against Bholas uncle. ( 5 ) THE accused have examined Onkar Nath Singh (D. W. 1) to prove that the victim had told him that he had not seen his assailant. They examined Mewa Lal (D. W. 2), uncle of appellants, in order to prove that against the said Mewa Lal and others Ram Prasad (P. W. 2) appeared as a witness and his statement was recorded on 10/1/1978 a certified copy of which has been filed. They have also examined Rekhoo Ram (D. W. 3) in order to prove that Ram Prasad (P. W. 2) had entered into a prior agreement for selling his land regarding which some legal notices were exchanged. No other witness has been examined by the defence. The remaining prosecution witnesses who are formal in nature are Onkar Nath Pathak (P. W. 3), Mual Yadav (P. W. 4) and Shaukat Ali (P. W. 7) proving the bed-head ticket, the patient chart at S. S. P. G. hospital, the making of the chik report and carrying the dead-body for post mortem examination respectively. Reference about other witnesses, namely, Dr. ODJ Prakash (P. W. 5), Dr. S. K. Srivastava (P. W. 8) and Abdul Jabbar Khan (P. W. 6), the Investigating Officer, has already been made earlier. ( 6 ) THE entire prosecution case, therefore, hinges practically upon the question of believing the Statement of Jugul Kishore (P. W. 1) who is admittedly the son of the deceased. Similarly Ram Prasad (P. W. 2), if believed, would lend more than substantial corroboration to the eye witness- account because he is the witness who is alleged to have seen the accused running away immediately after the incident when he was returning after trolly-plying. ( 7 ) THE trial Judge has placed implicit reliance upon the Statement of these two witnesses on the specific finding that it was a moonlit night and Jugul Kishore had ample reasons to be on the roof on a separate cot with the lantern left burning because of his studies as a High School Student. ( 7 ) THE trial Judge has placed implicit reliance upon the Statement of these two witnesses on the specific finding that it was a moonlit night and Jugul Kishore had ample reasons to be on the roof on a separate cot with the lantern left burning because of his studies as a High School Student. The Sessions Judge found that nothing material had been brought out in the cross-examination of either Jugul Kishore (P. W. 1) or Ram Prasad (P. W. 2) to discredit their testimony; the existence of the lantern on the roof and torch with Ram Prasad which had been proved by cogent evidence and which were brought by the witnesses in the Court; that there was sufficient light to identify the accused at every stage; the Statements of the two witnesses was natural and probable; the Medical examination of the victim Prabhu Narain Chaubey having been done at 1-45 A. M. and the F. I. R. having been lodged at Police Station at 3-30 A. M. ; there was a ring of truth in the entire prosecution story; and, above all, the injuries sustained by Prabhu Narain Chaubey fully corroborate the eye witness-account furnished by Jugul Kishore. ( 8 ) WE have heard Sri. A. D. Gin, learned counsel for the appellants and Sri. P. S. Adhikari, learned Additional Public Prosecutor at length and have examined the record. ( 9 ) THE learned counsel for the appellants has raised the following points to discredit the prosecution story as revealed by P. W. 1 and P. W. 2:1. The absence of a dying declaration in the instant case inspite of a report to that effect by the doctor concerned should, be interpreted as an intentional omission by the Investigating Officer so that the real State of affairs as to the identity of the appellants be not brought on record. Strong reliance was placed on the Statement of D. W. 1 to the effect that the deceased had told him that he had not recognised the assailants. In this very connection it was sought to be emphasised that what was recorded by the Investigating Officer in his case diary as a dying declaration of the deceased was in clear violation of paragraph 115 of the U. P. Police Regulations since no witnesss were asked to counter-sign that Statement. 2. In this very connection it was sought to be emphasised that what was recorded by the Investigating Officer in his case diary as a dying declaration of the deceased was in clear violation of paragraph 115 of the U. P. Police Regulations since no witnesss were asked to counter-sign that Statement. 2. The Investigating Officer states that he had come to know of the accused through the F. I. R. and even though their house was only a few furlongs from the place of occurrence he did, not search the accused in their house till 4/8/1977. It shows that till 4/8/1977 the Investigating Officer was not sure about the identity of the accused as no F. I. R. had, in fact, come into existence till then. 3. The presence of P. W. 1 Jugul Kishore is highly improbable as he had no reason to sleep with his father; he had no reason to leave the lantern burning; he did not lodge the F. I. R. at once he was not mentioned as the person carrying the victim to the hospital; nothing prevented the accused to cover their faces; the lantern should not have been left burning and the month being of August the likelihood of unnecessary disturbance on account of the presence of moths was there; P. W. 2 should be discarded as liar because till about 12 in the mid-night the trolly-plying was impossible inasmuch as he was a chance witness; he had also appeared as a witness against the uncle of the accused and has denied prior agreement; his testimony should be discarded on being interested and partisan. ( 10 ) IT may be relevant to mention here that the time and place of the incident have not been challenged either before the Trial Judge or before this Court. In fact, it could not be challenged as the medical examination was done at 1. 45 A. M. at S. S. P. G. Hospital which was quite a few miles away from the place. of occurrence and which thus fixes the time of the incident. Similarly, the recovery of the wad and blood at the roof of the deceaseds house by the Investigating Officer in the next morning fixes the place of occurrence also. 45 A. M. at S. S. P. G. Hospital which was quite a few miles away from the place. of occurrence and which thus fixes the time of the incident. Similarly, the recovery of the wad and blood at the roof of the deceaseds house by the Investigating Officer in the next morning fixes the place of occurrence also. The challenge, however, by the learned counsel for the appellants was to the participation of the two accused in the crime and on recording of the F. I. R. in the normal course as is alleged by the prosecution. While assessing the evidence of the eyewitnesses we find that although the incident in question had taken place during the night when there was moon light, it has come in the evidence, in paragraph 14, of P. W. 1 Jugul Kishore, that there were cl9uds scattered in the sky. The result would normally be that the moon light would not be as bright as it is in the month of October when the sky is absolutely clear. However, existence of some clouds may not be a preventing factor for the moon to emit some light but then in that case the source of moon light alone may not be enough for a person, who had just got up from his sleep, to recognise the assailants. ( 11 ) THE other source of light set up by the prosecution is a lantern, which was alleged to be burning at the time of incident. The reason given by P. W. Jugul Kishore for the lantern left burning was that he being a student of X Class used to study even at the time he used to go to bed. Apart from the fact that generally in the month of August students do not start making serious study for their examination, which take place in the March next year, even otherwise, the possibility of a person studying on an open roof in the rainy season during night is far from probable. In the normal course, during the rainy season a student would study on a table inside a room, as in an open place, moths etc. Surround a light in such a great proportion that it becomes difficult for any person to sit near a light. This problem is more acute in a village where there are no other lights on the street or market. Surround a light in such a great proportion that it becomes difficult for any person to sit near a light. This problem is more acute in a village where there are no other lights on the street or market. Hence to visualise that any person would use a lantern on the rooftop for studies would be highly improbable. Moreover, this witness had also admitted that he slept while reading a book. This statement was made to explain why he had not extinguished the lantern. The investigating officer P. W. 5 Abdul Jabbar Khari had also stated in his statement in paragraph 6 that he had found the table, on which the lantern was placed, about 6 or 7 steps away from the bed of this witness, who as per his own statement was sleeping on a bed hardly at a distance of one cubit away from the bed of his father. If P. W. 1 Jugul Kishore had put the lantern 6 or 7 steps away, which would be about 12 or 14 feet, the light from it on an open roof could hardly be sufficient to enable him to read any book. Therefore, the theory that he was sleeping on the roof with the full lantern on for his studies appears to be highly doubtful. May be, that the lantern had been kept at some distance with a very dim light to enable the person sleeping there to use it if they had to attend the call of nature etc. , but then such a lantern is kept burning only when the natural light is not sufficient to move about. Hence the theory that there was enough moon light during that cloudy night is also rendered doubtful, because if the moon light could be sufficient, then there was no point in keeping the lantern burning. Hence, presence of a bright burning lantern on the place of the incident appears to be doubtful. Even the moon-light on that night appears to be not sufficient to enable P. W. 1 to recognise the assailants, more so when he had suddenly got up from his sleep. Hence, presence of a bright burning lantern on the place of the incident appears to be doubtful. Even the moon-light on that night appears to be not sufficient to enable P. W. 1 to recognise the assailants, more so when he had suddenly got up from his sleep. If at all the Statement of P. W. 1 that he had started his studies for the X Class examination in August itself, is to be believed then he could have done so only inside a room during the night as on the roof he could not study with a burning lantern, due to the moths etc. , which are attracted towards such a light. Hence either Jugul Kishore P. W. 1 was not sleeping on the roof or if he was sleeping with his father then in all probability he was not in a position to recognise the assailants. ( 12 ) SO far as P. W. 2 Ram Prasad is concerned this witness also does not appear to be fully reliable. It is impossible to believe that a Trolley wala would be willing to accept an offer of carrying goods in the late night to a R destination which is absolutely opposite to the direction of his abode, where he has to go to sleep. This witness in paragraph 18 of his deposition had said that on the night of the incident he had at about 9 or 9. 30 P. M. accepted an offer to take al some goods from Vishesharganj market to the Cantt. Railway Station side and had started at about 9. 45 P. M. to that side and delivered the same at a place beyond half a mile from cantonment Railway Station near Devi ka Dham. It had taken him about 1-1/2 hours to reach Devi ka Dham. He stated that after unloading the goods, he had started for his home. He admitted that the distance between his home and Vishesharganj was the same as the distance between Vishesharganj and Devi ka Dham. It was asserted by the learned counsel for the appellants that the place of incident which is near Sarnath lies north east to Vishesharganj whereas Devi ka Dham, no near the Cantonment Station, lies towards west of Vishesharganj. He admitted that the distance between his home and Vishesharganj was the same as the distance between Vishesharganj and Devi ka Dham. It was asserted by the learned counsel for the appellants that the place of incident which is near Sarnath lies north east to Vishesharganj whereas Devi ka Dham, no near the Cantonment Station, lies towards west of Vishesharganj. It is a matter of common knowledge that firstly the markets do not remain open as the late as upto 9 OClock at night and, secondly, at even these Trolley walas seldom accept an assignment to deliver goods towards a destination, which is opposite to their place of residence where they ultimately have to go back in the night to take rest. This witness also said in paragraph 17 of his deposition that usually he started driving trolley from morning up to 10 or 11 OClock, where after he again took out the trolley in the evening at about 5 P. M. and sometimes returned only around 12 in the night. The present incident had taken place at 1 A. M. The fact that on the date of the incident Ram Prasad P. W. 2 would have accepted the offer to unload the goods at about 9. 30 P. M. in the opposite direction of his residence with the result that he reached back to his place of dwelling at about 1 A. M. just in time to enable him to see the fleeing accused persons a after the murderous assault, would be too much of a chance to give credence to his testimony which - otherwise is rather improbable. Hence coupled with the fact that this witness had also admitted that on 10/1/1978 he had deposed in the Court of Special Judicial Magistrate in the case of Panna v. Ram Chandra and had again deposed in another case from the side of Mukhram, (which fact makes him an interested witness,) his testimony cannot be accepted as fully reliable. Even otherwise also the evidence of the prosecution is almost clearly indicative of the fact that none of the persons including the deceased had been the assailants. Even otherwise also the evidence of the prosecution is almost clearly indicative of the fact that none of the persons including the deceased had been the assailants. The accused examined one Onkar Nath Singh, Head Master of a Basic Primary School Mubbaiya as D. W. 1 to depose that after getting the news about the attempt on the life of Prabhu Narain Chaubey, he went to meet him in the hospital after two days. He deposed that the deceased had told him that at the time of me incident two persons had fired on him but since they had covered their, faces he could not recognise them. On the witness asking the deceased whether he had nominated any person, the deceased had said that he was not prepared to nominate any person falsely as he was already suffering and he did not know as to what extent he may have to suffer in future. He deposed that though the condition of Prabhu Narain Chaubey at that time was stable and he was to be operated after 2 or 3 days for taking out the bullets, be died in between. This witness was cross-examined at length but nothing has come out therein to discredit his testimony. This witness was an independent witness. There does not appear any good reason to reject his testimony. Even otherwise also the Statement of this witness is corroborated by Dr. Om Prakash P. W. 5, who had examined Prabhu Narain Chaubey in the hospital immediately after the incident at 1. 45 A. M. This doctor in paragraph 6 of his cross-examination had stated that fie had asked the victim as to how he had suffered the injuries whereupon the victim had told him that some persons had fired on him from a gun, whom he could not recognise. The doctor also said that he had written this fact even in the memo which he had sent to the police. Thus, the statement of D. W. 1 Onkar Nath Singh as corroborated from the statement of Dr. Om Prakash indicates that the deceased had not nominated any person as his assailant, as he had failed to recognise him. The doctor also said that he had written this fact even in the memo which he had sent to the police. Thus, the statement of D. W. 1 Onkar Nath Singh as corroborated from the statement of Dr. Om Prakash indicates that the deceased had not nominated any person as his assailant, as he had failed to recognise him. ( 13 ) VIEWED in this background, the argument of the learned Counsel for the appellants that the Investigating Officer, despite the request from the doctor, did not get the dying declaration of the deceased recorded by a Magistrate assumes importance. It will be relevant to mention here that the Investigating Officer claims to have recorded the Statement of the deceased under Section 161, Cr. P. C. , wherein the deceased is alleged to have nominated the accused persons. We find weight in the submission of the learned counsel for the appellants that the Investigating Officer had not deliberately got recorded the dying declaration of the deceased by the Magistrate as he knew that the deceased was not going to nominate the persons whom the Investigating Officer had mentioned as accused in the alleged statement of the deceased recorded by him under Section 161, Cr. P. C. As a matter of fact when this aspect is taken into consideration, then the fact that the Investigating Officer did not comply with the requirement of Regulation 115 of the V. P. Police Regulations assumes further importance, as if the Investigating Officer would have called the public witnesses to fortify the alleged dying declaration of the victim as recorded by him, then the public witnesses too in every probability would not have agreed to support the said dying declaration which might have been prepared by the Investigating Officer on his own. Even otherwise the Stand of the Investigating Officer that independent persons were not available in the hospital or were not willing to be a witness to such a Statement, is not acceptable. The doctor and the hospital staff are always present in the hospital and it is not possible to believe that they would refuse to stand witness to any such statement, which the deceased might have been willing to make and which might have been faithfully recorded by the Investigating Officer. The doctor and the hospital staff are always present in the hospital and it is not possible to believe that they would refuse to stand witness to any such statement, which the deceased might have been willing to make and which might have been faithfully recorded by the Investigating Officer. ( 14 ) IN this background even the fact that the Investigating Officer did not make any effort to arrest the appellants on the next date also assumes importance. If the deceased had nominated the appellants in his dying-declaration made to the Investigating Officer, in the normal course the Investigating Officer ought to have made an effort to arrest them on that very day. This was not done. It may be that the Investigating Officer in the course of his investigation might have come to know that the accused were the persons who had shot at the victim and with that object he might have thought it proper to ask the deceased to nominate the accused in his statement. But any suspicion how so ever strong cannot take the place of proof, which as per evidence tendered in this case, is lacking. ( 15 ) THE result is that this appeal is allowed. The conviction and sentence of the appellants under Sections 302, 302/34, I. P. C. is set aside. The appellants are on bail. They need not surrender. Their bail bonds are discharged. Appeal allowed