JUDGMENT K. Narayan, J. - Appellant Chandra Bhushan Singh has been found guilty of the offence under Section 394, I.P.C. and 302/34 I.P.C. and sentenced to R.I. for five years and imprisonment for life by judgment and order dated 20.9.7B recorded by VII Additional Sessions Judge, Etah in S.T. No. 538 of 1977. 2. The prosecution story has been that in the evening of 28.10.1976 at about 11 p.m., the informant, Shanker Pal Singh along with Kripal Singh were coming back from Kasqanj towards Etah. They were detained in the way at Mirahchi for some reason and reached the canal of Sirsa Tappu around 11.00 p.m. where they happened to see that near a Shisham Tree, three persons were assaulting or holding one Sukhvir Singh, deceased in the case. Practically at the same. Satya Deo, Har Dayal and Lajjaram also arrived from other side. Satya Deo had a torch and in the light therefor they all saw the miscreants was snatching moveables of the deceased. Two of the miscreants had Katta while the other had a Danda. On the alarm raised by these persons, one of the persons fired Katta at Sukhvir Singh and threw the Katta towards his friend. He also snatched the wrist watch of Sukhvir Singh from his wrist and all of them tried to escape. The accused who had fired the gun and snatched the wrist watch was chashed and caught after a distance of about 25 yards. These persons waited at `the spot for the night and in the morning, Shankar Pal Singh went to the Police Station along with three bicycle of the deceased and the wrist watch of t he deceased which according to the prosecution was recovered from the possession of the accused. 3. The first information report of the incident is said to have been lodged at 6.10 a.m. at Police Station, Maharera situate at a distance of about 3 miles from the spot. 4. As usual memorandum of recovery of bicycle and wrist watch were prepared and the torch of Satya Deo was also seen and given back to him. Plain and blood stained earth etc. were also taken in police possession. That is not very material. 4. As usual memorandum of recovery of bicycle and wrist watch were prepared and the torch of Satya Deo was also seen and given back to him. Plain and blood stained earth etc. were also taken in police possession. That is not very material. The factum of occurrence is not disputed and the contention of the accused, who had filed his written statement has been that he being a friend of the deceased was coming with him on the same bicycle when certain miscreants attacked them at the place of occurrence and when one of them happened to see the face of the deceased he exclaimed that he was of the family of Tikam Singh and immediately fired at him. Out of fear, he was waiting at the spot when in the morning some persons reached him and when he conveyed the facts, he was taken to the police station and the entire incident given a different shape. 5. We have heard the counsel for the appellant as also the counsel for the State and have also carefully gone through the evidence of witnesses in the case. The prosecution had examined as many as 16 witnesses but out of them P.W. 2 H/C Surajpal Singh, P.W. 3 Constable Man Singh, P.W. 4 constable Charan Singh, P.W. 7 Constable Amir Chandra, P.W. 13 H/C Beni Singh and P.W. 16 Udai Singh were formal witnesses having recorded the report, kept the so called recovered property and cared them for identification etc. In fact it was all not necessary as there was no dispute at any time about the ownership of the property. The dispute, as it appear later on, has been as to whether they were dishonestly taken possession by the accused or were simply found at the spot. 6. P.W. 12 Dr. R.P. Yadav had conducted the post mortem examination. He had proved the injury and cause of death of the deceased and his testimony was not even challenged a1 d we will say rightly not challenged t the defence. 7. Material evidence can be said to be in the first instance of P.W.1 Suraj Singh, father of the deceased. His statement has been that on the date of occurrence, the accused had come to his house in the morning and the deceased had gone with him with a word that they were going to Etah. 7. Material evidence can be said to be in the first instance of P.W.1 Suraj Singh, father of the deceased. His statement has been that on the date of occurrence, the accused had come to his house in the morning and the deceased had gone with him with a word that they were going to Etah. It was shown in the statement of this witness that they were old friends though may or may not be very good friends. The suggestion has been that they were students together even in the former-institution. Naturally no father knows all friends and better friends of his son, but the mere fact that the accused was known to the family and had gone with him given an impression that there could not be any bad blood. It has also been shown in his cross-examination that his family is not unknown to Chaudhary Tikam Singh to whom his sister has been married. A fact which would be known to the accused only if he was to familiar. 8. The evidence of occurrence is contained in the statement of P.W. 8 Shanker Pal Singh, P.W. 9 Satya Deo and P.W. 10 Har Dayal. According to the statement of Shanker Pal Singh P.W. 2 the miscreants were trying to snatch the valuables of the deceased and when they were challenged by these witnesses of course from a distance, they fired at him and took away the wrist watch. This situation simply shown that the persons were more interested in taking away the life of the deceased as a person intending to commit robbery would not resort to firing as last action before leaving t tie spot. Taking human life is not usual nature of any person and that is done only when there is an object for it. The object of robbery having already come to an end because of the appearance of the other witnesses on the spot, there could not be any reason for committing murder. In the cores of the definition, it can be said that after having snatched the watch and the cash, fire could not be with an impression to snatch property and make good escape. The statement that after firing Katta the accused threw it towards his friend, is again against natural conduct. In the cores of the definition, it can be said that after having snatched the watch and the cash, fire could not be with an impression to snatch property and make good escape. The statement that after firing Katta the accused threw it towards his friend, is again against natural conduct. If a person has to run away from a place, he would naturally not threw his gun which is his strength if he is really a miscreant. The other statement of these witnesses is that t hey kept waiting at the same place the whole night. This is another strange factor. One person has been killed, one has been held and at least two, according to the prosecution story, had made good their escape would others, who are obviously unarmed, wait at the same spot till morning keeping themselves awake The rest two miscreants may come and assault them in order to snatch the arrested person, that is their friend. This is rather a lame excuse for the delay in taking the accused to the Police Station of he was really so apprehended as suggested by these witnesses. The contention does not seem worthy of credence. If Shanker Pal Singh, Satya Deo, Lajjaram and Amar Singh all could leave the body of the deceased on the spot at 4 in the morning, they could have left him alone even in the night as well. 9. P.W. 9 Satya Deo had also stated in the examination in chief, the facts as stated by P.W. 8 Shanker Pal Singh. It was shown in his cross-examination that he was going to call doctor at that dead hour of the night because his wife was realing under pain. His wife having been so ill. He did not care to go back home till 1.30 p.m. the next day. He has tried to explain that he had managed to send the doctor with his son. The idea does not inspire confidence as a person is not so such interested for another deceased as to avoid attendance of his living wife. Similar is the case with the evidence of P.W. 10 Har Dayal. He however, stated in his cross-examination that according to him, the watch was snatched before making fire, though the evidence of other two witnesses was to the contrary. It also appears from his cross-examination that they had tied hands etc. Similar is the case with the evidence of P.W. 10 Har Dayal. He however, stated in his cross-examination that according to him, the watch was snatched before making fire, though the evidence of other two witnesses was to the contrary. It also appears from his cross-examination that they had tied hands etc. of the accused with the help of some rope that was available on the bicycle of Shanker Pal Singh and Netra Pal. That being so, it would have been more easy for them to proceed in the night itself. It is also stated that the report was prepared at 4.00 a.m. by Shanker Pal Singh, the paper for it had been brought by Amar Singh. It is correct, the report would be scribed at the police station as according to Shanker Pal Singh, they had all left the spot at 3.45 a.m. and that will be cane what in agreement with defence version. 10. It has also been shown in the evidence of these witnesses that they were at a distance of 100 yards from the place of occurrence when they first saw the miscreants. At that dead hour of night in the absence of moon and in the dim light of torch only from a distance of 100 yards, it would be impossible for any person to see as to who had fired the gun and who had snatched the wrist watch if at all. In the circumstances the contention put forward by the defence seems to be more reasonable and the witnesses examined by the prosecution could not be relied upon. 11. In result, the appeal should succeed. The appeal is allowed The conviction and sentence recorded by the Sessions Judge are hereby set aside. The appellant shall stand acquitted of the charges. The appellant is on bail. His bail and bonds are cancelled and the sureties discharged.