A. B. SRIVASTAVA, J, J. ( 1 ) - This appeal from Jail has been filed by appellant Nisar Ahmad against a judgment and order dated 24. 9. 1983 of the II Additional Sessions Judge, Bareilly, convicting the appellant for the offence of murder under section 302. I. P. C. and sentencing him to imprisonment for life. ( 2 ) THE deceased in this case, Haneef, was a resident of Village Sehsa within the jurisdiction of police station Fatehganj, district Bareilly. Sometime before the incident to which this case relates, Riyasat Hussain, the brother-in-law of Haneef, was murdered in village Firozpur. Mohammed Mian, Zamer Mian and a few others were prosecuted for the said murder of Riyasat Hussain in which deceased Haneef was a prosecution witness. The present appellant Nisar Ahmad had asked deceased Haneef not to appear as a witness for the prosecution in the said murder trial but the deceased did not accede to his request. Nisar Ahmed, who is a resident of village Firozpur, used to visit the house of Ghaseet Ahmad, the cousin brother of deceased, occasionally, being a cousin of Ghaseet Ahmad from maternal side. On one or two occasions he had also visited the house of deceased Haneef. Two days before the murder to which this prosecution relates, Nisar Ahmed had threatened Haneef saying that the murder case against Mohammed Mian and others has ended in conviction and he would settle score with Haneef. A day before the incident of murder Nisar Ahmad also misbehaved with Nisad Begum, the wife of Haneef, for which the next evening he has beaten by Ghaseet Ahmad and rebuked by Haneef, who also asked him not to visit his house any more. The neighbours, however, intervened in the matter. ( 3 ) IN the night of 20 121. 4. 1992 the deceased Haneef and is wife Nisad Begum were sleeping on two cots side by side in the Sahan of their house where a Dibbi was kept lighted. At about midnight Nisad Begum woke up on hearing the sound of foot-steps and saw Zameer Mian with a lathi and Nisar Ahmed with a pistol standing near the cot of Haneef. At about midnight Nisad Begum woke up on hearing the sound of foot-steps and saw Zameer Mian with a lathi and Nisar Ahmed with a pistol standing near the cot of Haneef. Seeing this, she raised an alarm which brought Kalloo, Ghaseet and wife of Kalloo to the Spot At this stage Zameer exhorted Nisar Ahmad to shoot, and the latter fired a shot with his pistol at Haneef, who died on the spot. The two assailants immediately ran away. The sound of pistol shot attracted Chhotey and Nabi Ahmad also towards the scene of occurrence. All these persons chased the assailants and apprehended accused Nisar Ahmad and brought him to the spot of occurrence. Nisar Ahmad disclosed that he had committed murder at the instance of Zameer Mian. ( 4 ) A written report regarding this incident was sent by Nisad Begum to the police station the next morning, where the F. I. R. was registered at 7. 15 A. M. on 21. 4. 1982 and investigation was taken up. The Investigating Officer on reaching the spot made an inquest of the dead body and sent it for postmortem examination. He also took the accused-appellant Nisar Ahmad in his custody, made spot inspection, prepared site plan and also took in possession blood stained and unstained earth and parts of the bed on which the deceased Haneef was lying. He also inspected the Dibbi belonging to the first informant Nisad Begum and that belonging to Ghaseet and delivered the same in their supuradgi. He also inspected the torches of other witnesses and delivered in the supuradgi. After recording the statements of the witnesses and completing investigation, he submitted charge shoot against two named accused persons, Nisar Ahmad and Zameer Mian, to the court of Magistrate, who committed them to the court of Sessions to stand trial. ( 5 ) THE learned II Additional Sessions Judge, Bareilly, Sir P. K. Dikshit, charged the two accused persons of the offence punishable under section 302 read with section 34, I. P. C. ( 6 ) BOTH the accused persons pleaded not guilty to the charge framed against them and claimed to be tried. Appellant Nisar Ahmed stated that there has been litigation and enmity between him and Ghaseet in respect of property and he was not on visiting terms and that he has been falsely implicated on account of the same. Appellant Nisar Ahmed stated that there has been litigation and enmity between him and Ghaseet in respect of property and he was not on visiting terms and that he has been falsely implicated on account of the same. He denied having been arrested in the manner alleged by the prosecution after the occurrence and stated to have been arrested from his house. ( 7 ) IN support of its case the prosecution produced before the learned Additional Sessions Judge five witnesses in all. Two of them, P. W. 1 Ghaseet Ahmad and P. W. 2 Nisad Begum, were examined to give eye witness account of the alleged incident. P. W. 2 also proved the F. I. R. Ext. Ka 1 and the supuradginama of Dibbi (Ext. Ka. 2 ). The remaining witnesses of the prosecution were formal. P. W. 3 Constable Udaivir Singh had taken the dead body duly sealed for postmortem examination to the mortuary. P. W. 4 Sub-Inspector Indermani Guswhat had investigated the case and proved the inquest report, the site plan, the seizere memos and the charge sheet (Ext. Ka. 2 to Ka. 11 ). He also proved the chick report (Ext. Ka. 12) and copy of the G. D. entry (Ext. Ka. 13 ). ( 8 ) P. W. 5 Dr. D. K. Gangadwar had dedicated the autopsy of the dead body of Haneef and proved his postmortem examination report. (Exa. Ka. 14 ). According to him the death of Haneef was caused on account of gun shot injury in his forehead sometime around mid-night in the night of 20/2 1. 4. 1982. ( 9 ) THE learned Additional Sessions Judge, found accused Zameer. Mian not guilty of the charge framed and ordered his acquittal, while appellant Nisar Ahmad was held guilty of the charge under sec 302, I. P. C. and was convicted and sentenced as aforesaid. He has preferred this appeal against the said order of conviction and sentence. ( 10 ) WE have heard the Learned Assistant Government Advocate. The counsel appointed as Amices Curiae to conduct the appeal on behalf of the appellant failed to appear. He has preferred this appeal against the said order of conviction and sentence. ( 10 ) WE have heard the Learned Assistant Government Advocate. The counsel appointed as Amices Curiae to conduct the appeal on behalf of the appellant failed to appear. We have gone through the record ourselves with the assistance of the learned Assistant Government Advocate ( 11 ) IN the nature of the charge framed against the accused-appellant and the allegations leading to his prosecution, the question arising is whether the accused-appellant Nisar Ahmad committed the murder of Haneef in the night of20/21. 4. 1982 and whether he had motive to commit the said crime as alleged by the prosecution, and as found by the learned Additional Sessions Judge. ( 12 ) AS already stated above, according to the prosecution the motive behind this murder was the fact of deceased Haneef being a witness in the trial regarding murder of Riyasat in which Mohammed Mian and others were accused. It is alleged that during the pendency of the said murder trial the appellant Nisar Ahmad asked deceased Haneef to desist from appearing as a witness for prosecution to which the deceased did not pay head. Annoyed by this act the deceased, two days before the incident of murder, the appellant had threatened with dire consequences. A perusal of the judgment recorded by the trial court itself would, however, got to show that it has specifically recorded a finding to the effect that deceased Haneef was not a witness in the murder case of Riyasat Hussain, it was on this basis that the learned trial court found that co-accused Zameer Mian could have no motive to commit the murder of deceased Haneef. A perusal of Ext. Ka. 1, the copy of the charge sheet, in the case relating to the murder of Riyasat Hussain, would also go to confirm this finding of the trial court. If being so, the very foundation of the prosecution version regarding the appellant Nisar Ahmad having the motive to commit the murder of Haneef vanishes. There could, under the circumstances, be no occasion for the appellant to have asked the deceased to desist from appearing as a witness and to have got annoyed on account of his refusal or the resultant conviction in the said murder trial. There could, under the circumstances, be no occasion for the appellant to have asked the deceased to desist from appearing as a witness and to have got annoyed on account of his refusal or the resultant conviction in the said murder trial. ( 13 ) THE immediate cause for the incident of murder set forth by the prosecution is also not established by any satisfactory evidence on record. While in the F. I. R. it was alleged that Ghaseet, the cousin brother of the deceased, had beaten the appellant, and the deceased had abused him on account of his having misbehaved with Smt. Nisad Begum. In the witness-box P. W. 1 Ghaseet Ahmad and P. W. 2 Nisad Begum made improvement to say that even the deceased beat the appellant. No independent testimony has been brought on record on this point despite the fact that some residents of village are alleged to have intervened in this scuffle and persuaded the appellant to stay back in the village. Even if for arguments sake, it may be accepted that some such incident had taken place, it was not of such nature as could have provided an immediate motive or provocation to the appellant to commit the murder of Haneef. ( 14 ) ALTHOUGH existence of motive is also not necessary to held the accused persons guilty of crime, where motive is alleged and is specifically disproved, the benefit has to go to the accused and it has the effect of discrediting the prosecution version. It is all the more so in this case where the incident was not committed in broad day light or in a day devil manner. ( 15 ) AS against the above, it would be found that the version of the appellant regarding existence of motive on the part of P. W. 1 Ghaseet and his family members to falsely implicate him in this case appears more probable. Both P. W. 1 Ghaseet and P. W. 2 Nisad Begum admitted the factum of previous civil and criminal property litigations between Ghaseet and appellant Nisar Ahmed. Under these circumstances and in view of the motive set up by the prosecution having been found to be false, the theory of the accused that he has been implicated to wreck vengeance in the background of the enmity regarding property becomes highly probable. Under these circumstances and in view of the motive set up by the prosecution having been found to be false, the theory of the accused that he has been implicated to wreck vengeance in the background of the enmity regarding property becomes highly probable. Learned trial court under these circumstances committed a grave error in ignoring this aspect of the matter in dealing with the case against appellant Nisar Ahmad while emphasizing the same in recording acquittal of coaccused Zameer Mian. ( 16 ) NO doubt there is no dispute about the prosecution version regarding murder of deceased Haneef having been committed some time around mid night in the night 20/21. 4. 1982 and the medical as well as the other evidence support the same, this fact alone could not be availed of to fasten the liability of this crime on the appellant. The prosecution was required to prove beyond reasonable doubt by cogent evidence, that it was the accused appellant who committed the said murder. A careful scrutiny of the oral evidence led by the prosecution and consideration of the circumstances would go to show that the prosecution has failed in discharging its burden. ( 17 ) THE prosecution evidence of fact, consists of the statements of P. W. 1 Gahseet, the cousin brother, and P. W. 2 Nisad Begum, the widow of the deceased, who claimed to have witnessed the incident and seen the appellant Nisar. Ahmad along with Zameer Mian committing the murder. Having carefully gone through their evidence however, we find that the testimony of that two witnesses suffer from various contradictions and infirmities. Under these circumstances, despite the fact that they are close relations of the deceased and their presence near the place of occurrence was highly probable, the same would not suffice to bring home the charge against the accused- appellant. While the first, informant P. W. 2 Nisad Begum stated in the witness box that on seeing Nisar Ahmad and Zameer Mian near the cot of her husband she raised alarm and after the witness arrived, on the instigation of Zameer Mian, Nisar Ahmad fired at the deceased Haneef, in the F. I. R. she stated otherwise to the affect that as soon as she woke up, she saw the two assailants, one of him appellant Nisar Ahmad fired with a pistol at the deceased who died with a shriek. She raised alarm which brought the witnesses Ghaseet and others on the spot. The P. W. 1 Ghaseet on the other hand stated that he first heard shrieks of Nisad Begum and reached the spot along with Kalloo and his wife, to sec Zameer Mian exhorting the appellant to shoot the deceased, and latter firing shot with a pistol. In his cross-examination this witness Ghaseet denied having heard any shrieks of the deceased. In fact, he was sleeping inside his house and stated to have come out after hearing the shrieks of Nisad Begum which obviously would have followed the firing of shot at the deceased and not preceded it. Under these circumstances, it would hardly have been possible for him to have witnessed the actual incident which as per indications occurred within a few seconds. This becomes further clear from his own admission in cross-examination that the shot was not fired in his presence and he had merely heard its sound. The incident being of dead hour of night, it was also not possible even for those being in the near vicinity of the place of occurrence, to have been alert enough to witness the arrival of the assailants, their committing the crime by firing a single shot from a pistol, and immediately running away. ( 18 ) THE position of the light alleged to have been available near the place of occurrence, even if the prosecution version on this point is taken on the face value, was not much as to provide sufficient visibility to recognize the assailants. None of the witnesses claims to have been awoke from before the incident. Getting up on hearing the sound of pistol shot and the shrieks of the deceased or for that matter of his wife Nisad Begum sleeping on another cot, would in natural course have taken sometime which in the circumstances was sufficient to take the assailant of the assailants, as the case may be, away from the range of their vision. Consequently, the changes of the prosecution witnesses having recognised the accused-appellant as amongst the assailant by face or gait appear remote. ( 19 ) THE learned trial court in believing the prosecution story against the appellant appears to have relied heavily on the circumstances of alleged spot arrest of the appellant near the spot of occurrence. Consequently, the changes of the prosecution witnesses having recognised the accused-appellant as amongst the assailant by face or gait appear remote. ( 19 ) THE learned trial court in believing the prosecution story against the appellant appears to have relied heavily on the circumstances of alleged spot arrest of the appellant near the spot of occurrence. The myth of this story is, however, exploded if we scrutinize the circumstances. It is in evidence that the accused-appellant was apprehended and brought back to the scene of occurrence about an hour after the incident. If it was a fact that the witnesses saw him committing the crime and chased instantaneously he would have been over powered and arrested within a few minutes and not after such a long gap. Further if, as alleged, he had been apprehended shortly after the incident, he would in the nature course have been taken to the police station along with the F. I. R. It is not that the F. I. R. was lodged in the night and problem of security was involved. It was lodged in the morning by the village Chaukidar and others. Although it is alleged that a large number of people of the village participated in chasing and apprehending the appellant at some distance away from the spot, not one independent witness is forth-coming in the witness box. This part of the story has also been left to be stated by Ghaseet P. W. 1, highly inimical to the appellant. In view of these above facts and circumstances, the theory of alleged spot arrest of the accused-appellant becomes highly doubtful and the conclusion of the learned trial court on this account becomes unsustainable. ( 20 ) THE position of alleged extra judicial confession of the accused-appellant after his arrest is also no better. It was for the first time stated in the witness-box by P. Ws. 1 and 2. The F. I. R. which is an exhaustive document is alien on this point. This sledger circumstance relied upon by theprosecution also thus is not available able to indicate the complicity of the appellant in this crime. The result is that there remains practically no reliable evidence to fasten the liability of committing this murder on the accused-appellant Nisar Ahmad. The F. I. R. which is an exhaustive document is alien on this point. This sledger circumstance relied upon by theprosecution also thus is not available able to indicate the complicity of the appellant in this crime. The result is that there remains practically no reliable evidence to fasten the liability of committing this murder on the accused-appellant Nisar Ahmad. ( 21 ) UNDER all the above circumstances, therefore, we find that the conviction of the appellant for the offence of murder recorded by the learned trial court, as well as the sentence of life imprisonment awarded to him is unsustainable and the appellant is entitled to acquittal. His appeal deserves to be accepted. ( 22 ) CONSEQUENTLY, the appeal is allowed, the conviction and sentence of the appellant as recorded by the learned trial court is hereby set aside and he is acquitted of the charge under section 302, IP. C. He is in jail and shall be released forthwith unless wanted in some other connection. ( 23 ) THE material exhibits 1 to 3 shall be destroyed according to the rules. Appeal allowed. .