JUDGMENT G.D. Dube, J. - The sole appellant has been convicted and sentenced to undergo imprisonment for life under Section 302 of I.P.C. by VIII Additional Session Judge, Bareilly. Aggrieved by this order the present appeal has been filed. 2. Mustaq Ahmad Khan, P.W. 1, had lodged the report at 4.00 a.m. on 11.7.83 P.S. Siroli, District Bareilly. He had alleged in this report that his sister Smt. Shah Jahan Begum who was married in village Akhtara, P.S. Bisauli district Budau had migrated to the village Kalyanpur where he (Mustaq Ahmad) resides. The appellant is the son of Shah Jahan Begum. He is a man of bad character and vagabond. Consequently he was not allowed by the people of Akhtara to remain in the village. Hence he had to leave the said village. Since a year before the occurrence Shahjahan Begum was negotiating the marriage of her son Aqeel Ahmad with Nikhat Parveen, daughter of the reporter. Since the appellant was a bad character the reporter had not agreed to the marriage. Consequently he had settled the marriage of his daughter with another person. The appellant had threatened that if marriage was not performed with him the consequences for the reporter will be very bad. Marriage of Nikhet. Parveen was to be performed on 15.7.83. Since the reporter had refused the marriage Aqeel Ahmad appellant and his family had left the village about 4 days before the occurrence. It is urged that in the night between 10/11.7.88 Mustaq Ahmad, his wife Sugar Begum and daughter Nikhat Parveen were sleeping in the courtyard of his house on the separate cots. A lantern was burning at the place of occurrence. At about 1.00 in the night Aqeel Ahmad came with double barrel gun from the open side towards south. At that time Smt. Sugra Begum wake when she inquired. the appellant as to why he was there he fired twice towards Nikhat Parveen. On hearing the sound of fire his son Tasleem, Ahmad Khanb son-in-law Asrat Khan and a neighbour Raza Khan arrived at the spot and saw the appellant running away from the place of occurrence with his gun. A little after receiving the gun shot injuries Nikhat Parveen died. Mustaq Ahmad Khan went to the police station next morning and dictated the first information report Ext. Ka 1. Thereafter a case was registered at the Police Station. 3. A little after receiving the gun shot injuries Nikhat Parveen died. Mustaq Ahmad Khan went to the police station next morning and dictated the first information report Ext. Ka 1. Thereafter a case was registered at the Police Station. 3. After the case was registered Bheekham Singh, Sub-Inspector, P.W. 4 went to the spot and prepared the inquest report of Nikhat Parveen. He sent the dead body through a constable in a sealed cloth to the mortury for post mortem. The autopsy of the dead body was conducted by Dr. P.K. Gupta, P.W. 7 at 11.00 a.m. on 12.7.83. He had found that the deceased was about 19 years old. She had died about 1 day back. He had found the following ante-mortem injuries: 1. Gun shot wound of entry 2 cm x 2 cm chest cavity deep on right breast 4 cm inner to right nipple at 20' clock position. Blackening Scorching Marging inverted. Direction backward, downward and inward. 2. Gun shot would of entry 2.5 c.m. x 22 cm x chest cavity deep left side chest upper part and 1 cm below left clavical bone. Blackening, scorching present and margins inverted. Direction back-ward down-ward and onward. 3. Gun shot wound of exit 1.5 cm x 1 cm x cavity deep on middle line of back 13 cm below root of neck. Corresponds to injury No. 1. Margins overted. 4. Gun shot wound of Exit 1.5 x 1 cm x cavity deep on back of left shoulder lower part 2 cm posterior and below empty margins overted corresponds to injury No.2. On the internal examination he found that 3rd rib of right side, 2nd rib of front left side and 8th rib on the right side towards back were fractured. Both lungs were lacerated. One shot was recovered from the left lung. One litre of Fluid blood was found in the chest cavity. Liver was lacerated and one shots. was removed from it. The doctor had opined that these injuries were sufficient in the ordinary course of nature to cause the death. 4. The regular investigation of the case had been taken up by Jagram Singh, P.W. 5. He had interrogated the witnesses, prepared the site plan and directed Bheekham Singh, Sub-Inspector to prepare the inquest report. He collected blood stained earth and plain earth from the place of occurrence. 4. The regular investigation of the case had been taken up by Jagram Singh, P.W. 5. He had interrogated the witnesses, prepared the site plan and directed Bheekham Singh, Sub-Inspector to prepare the inquest report. He collected blood stained earth and plain earth from the place of occurrence. He had also inspected the lantern burning on the spot and prepared the memo. Taslim and Ismat Khan are alleged to have flashed their torches at the spot. Their torches were also inspected and memo were prepared. He had also prepared the site plan. After completing the investigation charge-sheet was submitted against the appellant on 12.8.83. 5. The prosecution had examined P.W. 1 Mustaq Ahmad, P.W. 2 Raza Khan and P.W. 3 Sugara Begum as eye witnesses. The rest were formal witnesses. The accused had pleaded not guilty to the charges. It has been alleged that he had been implicated on account of enmity. He had stated that his father was an employee and working on a Tractor. He had purchased some land in village Kalyanpur and constructed a house. He was working in Forest Department. It was stated by him that he was present on his duty at the time of occurrence. He also stated that Nikhat Parveen was a girl of bad character. The complainant wanted to marry the girl with him. Since he was not agreeable he was falsely implicated. He had examined two witnesses to prove his case. The learned Sessions Judge believed the prosecution story. He did not believe the case of alibi. After assessing the evidence the lower court held the appellant guilty and convicted and sentenced him (appellant) as stated above. 6. It has been argued by the learned counsel for the appellant that as Km. Nikhat Parveen was a girl of bad character. She had been done to death by her brother. It was also urged that totality of circumstances indicates that the occurrence could not have taken place in the manner as alleged by the prosecution. It was further urged that the appellant was in love with Nikhat Parveen. Hence there was no purpose in killing the girl. His last contention was that the lower court had erred in disbelieving the evidence relating to alibi. 7. The learned Sessions Judge had disbelieved the statement of Akshay Kumar (D.W. 1), Ranger, Khatana Forest Department. It was further urged that the appellant was in love with Nikhat Parveen. Hence there was no purpose in killing the girl. His last contention was that the lower court had erred in disbelieving the evidence relating to alibi. 7. The learned Sessions Judge had disbelieved the statement of Akshay Kumar (D.W. 1), Ranger, Khatana Forest Department. This witness had stated about the presence of the accused at Mohiya Head Gate in Katema Forest. He had stated after perusing the cash book and the attendance register of the Department stating that, at the alleged date and time of the occurrence, the accused was present. The learned Sessions Judge had disbelieved the statement of this witness on the ground that he had not made any entry about his inspection of Mohiya Head Gate at the alleged time. This witness had stated in a straight forward manner that he does not make any note in any diary about his inspection. It is his daily routine of checking the gates because theft of forest wood generally takes place in the night. The appellant was daily wager in the department. Hence it is not at all probable that the department was so kind enough to pay him the wage of 10.7.83 if he was actually not present on duty. The statement of Akshay Kumar was rejected on a very flimsy ground. Since his statement was corroborated by documentary evidence, there was no justification to disbelieve his statement unless material was brought on record to show that the entries in the cash book and the entries in other registers were made subsequently to help the appellant to escape punishment in this murder case. 8. Akshay Kumar has also proved some entries made by the appellant in passing some trucks from Mohiya Gate. This part of the statement was disbelieve on this ground that D.W. 1 was not able to recognise the hand writings of some other entries. He had been able to recognise the entries made by Anwar Gateman. He had also recognised the presence of other gatemen, namely, Wasid Bukhan and Amar Singh on other dates of checking. He stated the specific reasons for remembering the fact regarding presence of the accused at Mohiya Gate. He had been able to recognise the entries made by Anwar Gateman. He had also recognised the presence of other gatemen, namely, Wasid Bukhan and Amar Singh on other dates of checking. He stated the specific reasons for remembering the fact regarding presence of the accused at Mohiya Gate. He stated that since the appellant was involved in a case of alleged to have been committed in the very night, when he was present at Mohiya Gate, he had remembered this fact of presence of accused on the gate at the alleged time of occurrence. This was a plausible reason. Sometime some important facts, which are connected with some irrelevant facts, make an ineligible impact of the insignificant instance on the mind that they are retained for a considerable long time, the explanation given by this witness regarding presence of the appellant at Mohiya Gate at the alleged time of occurrence could be remembered by Akshay Kumar. There was no good reason for the learned Sessions Judge to disbelieve the statement of this witness. Hence the evidence of alibi produced by the appellant was believable and the lower court had incorrectly rejected it. 9. The manner of occurrence stated by the prosecution witnesses was also not consistent with the medical evidence. Raze Khan (P.W. 2) and Smt. Soghra Begum (P.W. 3) have stated that at the time of firing his gun the appellant was standing towards the feet of Km. Nikhat Parveen and the barrel was at distance of about one or one-and-a-half span. If it was so, then the direction of gun-shot wound entry ought to have been upward, but injuries 1 and 2, which are entry wounds of gun shot, show that the direction was backward and downward. Such show that the direction was backward and downward. Such an injury could have been caused only if the assailant was standing towards the head side of Km. Nikhat Parveen. 10. Even in the map prepared by the Investigating Officer the position of Aqeel Ahmad was shown towards the leg side of the deceased. The above circumstances, therefore, reveal that probably the two witnesses Mushtaq Ahmad and his wife Smt. Soghra Begum had not been the assailant otherwise they would not have stated that Aqeel Ahmad had fired the shot from the leg side of the deceased. The above circumstances, therefore, reveal that probably the two witnesses Mushtaq Ahmad and his wife Smt. Soghra Begum had not been the assailant otherwise they would not have stated that Aqeel Ahmad had fired the shot from the leg side of the deceased. Learned A.G.A. has argued that Mushtaq Ahmad had stated that after receiving gun shot injuries, Km. Parveer had jumped a bit wren the second shot was fired. This statement does not help the state in any manner. Even if the statement of Mushtaq Ahmad is believed, this manner of occurrence is not corroborated by medical evidence. In such a situation, the direction of injuries ought to have been in two different manner. The first injury, in all circumstances, ought to have been directed upward and the second should have been some what in a horizontal level. The second shot should have gone straight from front to back. This statement of Mushtaq Ahmad (P.W.1) also indicates that probably he too was not awaken when the shots were fired. His statement about the manner of occurrence is based on imagination. Raza Khan (P.W. 2) had supported the prosecution story. His statement becomes doubtful from the very first few sentences of his cross-examination. In the first part of the cross examination, he had admitted that when he went inside the house after the occurrence he saw that the dead body of Km. Nikhat Parveen was covered with a white chadar. There was no pullet marks on the chadar. The chadar was, however, blood stained. If Km. Nikhat Parveen had been murdered, while she had covered her body with a chadar, then there ought to have been some pullet marks on the chadar. Since the chadar was placed over the dead body, it was apparent that it must have been placed after the occurrence. Raza Khan had stated that he had arrived soon after hearing the alarm raised by Mushtaq Ahmad and Smt. Soghra Begum. After the accused had run away, he had gone inside the house and seen the dead body. In such a situation, there could not be any chadar on the dead body without any pellet marks, since a chadar had been placed on the dead body before the arrival of Raza Khan, it reveals that some time must have elapsed between the occurrence and his actual seeing of the dead body. In such a situation, there could not be any chadar on the dead body without any pellet marks, since a chadar had been placed on the dead body before the arrival of Raza Khan, it reveals that some time must have elapsed between the occurrence and his actual seeing of the dead body. From this statement itself it transpires that this Raza Khan (P.W. 3) had arrived at the spot quite late. His statement that he had seen the accused running away is not correct. He is blindly supporting the prosecution. He i s not at all a reliable witness. 11. For the reasons mentioned above, we find that there is no evidence at all to show that the appellant had actually committed the crime. The evidence produced by the prosecution was not of such a character which could be believed. Appellant had also proved convincingly that he was present at Mohiya Gate of Khatme Forest at the time of occurrence. Thus we hold that the prosecution had failed to establish its case. The lower court had erred in believing the prosecution story. The appeal should, therefore, be allowed. 12. No other point has been pressed. 13. In the result, the appeal succeeds and is allowed. The judgment and order of the Lower Court are set aside. The appellant is acquitted of the charge levelled against him. He is in jail. He be released forthwith if he is not requires in any other case.