PALOK BASU, J. Mahendra has filed this appeal against the judgment and order of the First Additional Sessions Judge, Mainpuri, dated 17-11-1978 in S. T. No. 155 of 1978 thereby convicting him under Section 302 read with Section 301,i. P. C. to imprisonment for life and five years R. I. under Sec tion 307,i. P. C. 2. Two other accused, namely, Ram Pal and Ram Das were also named along with Mahendra in a first information report lodged by P. W. 1, Ram Bharosey at police station Kuraoli, district Mainpuri on 14-9- 1976 at about 1 a. m. This report was taken down under Sections 301/302/307,i. P. C. After investigating by the police it appears that Ram Lal and Ram Das were not prosecuted in court as no chargesheet was filed against them but only Mahendra was charge-sheeted. However, the matter relating to Mahendra proceeded in the court and a complaint was preferred by Ram Bharosey in which after taking cognizance and recording the statement of the complainant and his witnesses, Ram Lal and Ram Das were summoned. That complaint case was amalgamated with the police challani case and, therefore, all the three accused, namely, Mahendra, Ram Lal and Ram Das were tried together by the Sessions judge in the aforesaid Sessions Trial, after having been duly committed to the Court of Session by the Judicial Magistrate, Mainpuri, on 4-4-1978. 3. According to the prosecution case, in the morning of 13-5-1976 wife of Mahendra had a quarrel with the wife of Udal, brother of Ram Bharosey. Consequently at 7. 30 p. m. on that day when Ram Bharoseys wife Smt. Somwati along with the youngest daughter Km. Maya in her lap, his cousin Roshan and daughters Km. Shashi (deceased), P. W. 2, Km. Lakshmi, Suman and his brother Ram Lal were present in the court yard, Jagdish, neighbours brother and Smt. Dhan Devi, wife of Roshan, were also present in the court yard, Udal, brother of Ram Bharosey, was coming from the riverside lying towards the north- west just at that time appellant Mahendra and co-accused Ram Lal and Ram Das appeared in outer courtyard of the Baithak of appellant Ram Lal in front of the house of Kam Bharosey aad all the three started firing from their firearms at Udal. Mahendra was having a gun while Ram Lal and Ram Das were having country-made pistols, Udal, however, avoided the shots which went inside the courtyard and hit P. W. 2, Km. Lakshmi, K. Maya, Km. Shashi and Jagdish as a result of which Km. Lakshmi received pellet injuries while the other three died as a result of the injuries sustained by the firearms. From a perusal of three post-mortem examination reports it appears that the pellet had travelled into the heart region as a result of which death was caused. The learned trial Judge believed the prosecution version and as such convicted appellant Mahendra but acquitted the two accused Ram Das and Ram Lal, hence this appeal by Mahendra. 4. Sri Kundan Singh, learned counsel on behalf of the appellant and Shri A. K. Dwivedi the learned A. G. A. for the State have been heard at length and the entire record has been examined. 5. In order to prove the prosecution case three eye-witnesses have been examined and they are P. W. 1, Ram Bharosey, P. W. 2, Km. Lakshmi and P W. 3, Matadin. All the accused in their statements denied the participa tion and attributed false implication due to enmity. The defence suggestion to the witnesses appeared to be that the occurrence had not happened at the time, manner and place as suggested in the first information report but had in fact happened due to an accidental firing by Udal himself. 6. P. W. 4, Jaswant Singh is the Investigation Officer and he has proved the lodging of the F. I. R. the chick report (Ex. Ka-3) and the relevant G. D. entry (Ex. Ka-4) and his filing of the charge-sheet. It has come in evidence that the charge-sheet had been filed against Mahendra alone by the police and not against the two named accused. Ram Laland Ram Das for the reason that the eye-witnesses in their statements under Section 161, Cr. P. C. did not name Ram Lal and Ram Das. P. W. 4 has admitted in his deposition in court to the following effect : - "no witnesses, not even Lakshmi and Matadin told me that in the incident along with Mahendra, Ram Lal and Ram Das were present along with the country-made pistols and they too had fired along with Udal. P. W. 4 has admitted in his deposition in court to the following effect : - "no witnesses, not even Lakshmi and Matadin told me that in the incident along with Mahendra, Ram Lal and Ram Das were present along with the country-made pistols and they too had fired along with Udal. Ram Bharosey alone had made such a statement corroborating his F. I. R. I did not think that the statement of Ram Bharosey alone is sufficient for prosecuting Ram Das and Ram Lal as accused and hence did not submit charge-sheet against those two. " 7. The learned counsel for the appellant argued that from a perusal of the post-mortem examination reports which were not challenged, it is more apparent that two types of firearms were obviously used. Under the circum stances participation of only Mahendra cannot be the cause of injury sustained by the four persons three of whom died. It was further pointed out that as per the site-plan prepared in the police case it was impossible that the direc tion of the pellets would go towards inside the courtyard so as to hit four persons and how strange does it look that three persons fired at Udal and he did not receive a single scratch. On the basis of these circumstances it was argued that the prosecution case is false as against Mahendra also. 8. While acquitting the two other accused the learned Trial Judge has discarded the testimony of all the three witnesses on the ground that in their earlier statement under Section 161, Cr. P. c. they omitted to mention the names of Ram Das and Ram Lal. He further recorded a categorical finding that two different dimensions of injuries sustained by the four victims of the firearm assault indicated more than two firearms. 9. In this connection it may be noted that so far as P. W. 3 Matadin is concerned, he has said that he reached the place after hearing to sound of firing. He has said : - "jaise Hi Goli Chaji Main, Roshan Key Chabutrey Par Aa Gaya Tha. Goli Mahendra Ram Lal Wa Ram Das Mulzlman Eazir Adalat Chala Rahey They. " In cross-examination he has stated that in his statement under Section 161, Cr. P. C. the names of Ram Das and Ram Lal are not mentioned. He could not say why that was so. 10. Goli Mahendra Ram Lal Wa Ram Das Mulzlman Eazir Adalat Chala Rahey They. " In cross-examination he has stated that in his statement under Section 161, Cr. P. C. the names of Ram Das and Ram Lal are not mentioned. He could not say why that was so. 10. So far as the presence of P. W. 2, Km. Lakshmi is concerned, she obviously was inside the house admittedly. It was not likely that she would have seen the firing from outside the house as she was closetted along with hat mother and sisters. In all likelihood they must not have been standing at the door, and, therefore, it is highly improbable to expect that she, would have noticed Mahendra appellant along with Ram Lal and Ram Das firing at them. Even in her statement under Section 161, Cr. P. C. before the Investigating Officer the name of Ram Lal and Ram Das were omitted and she could not explain why was it so. 11. In the first information report as also in his statement in court P. W. 1, Ram Bharosey has said that Udal was a theif and an outlaw and a dacoit and so was appellant Mahendra and against both of them several cases of theft and dacoity had been registered. He has further said that both those persons, namely, Udal and Mahendra appellant had illicit connection with Udaps sister-in-law Munni and for this reason Udals wife and Mahendras wife used to have quarrel. In the very nature of the things neither the character of these witnesses nor their deposition appears such on which implicit reliance can be placed. The vital contradiction existing in the names of accused in the F. I, R. in the statements under Section 161, Cr. P. C. and in the deposition in court makes it extremely doubtful for this Court to record a clear finding that appellant Mahendra was the lone man responsible for firing. His case also, therefore, deserves to be treated in the same fashion as Ram Lal and Ram Das case has been treated by the Trial Judge. It must, therefore, be held, that the case against Mahendra appellant is not proved beyond reasonable doubt. 12. His case also, therefore, deserves to be treated in the same fashion as Ram Lal and Ram Das case has been treated by the Trial Judge. It must, therefore, be held, that the case against Mahendra appellant is not proved beyond reasonable doubt. 12. Consequently the appeal is allowed, the conviction of appellant Mahendra under Section 302 read with Section 301,i. P. C and also 307, I. P. C. and the sentences of imprisonment for life and five years R. D, respec tively, are set aside. He is acquitted of the charges. Hs is on bail and need not surrender. His bail bonds are discharged. Appeal allowed. .