JUDGMENT H. C. Mital, J. 1. The above named appellants have preferred this appeal against their conviction and sentence under Sections 148 and 302 IPC to two years' rigorous imprisonment and life imprisonment respectively. 2. The prosecution case, in brief, is that on 22-9-77 at about sun rise these appellants armed with fire arms along with two other unknown persons, who were armed with lathis entered the house of the complainant Room Singh, who on seeing them raised alarm. Thereupon his brother Agarpal Singh who was lying inside the room came out and on seeing him the appellants fired shots at him, as a result of which he died on the spot. The occurrence was witnessed besides Smt. Savitri Devi PW 4, wife of Agarpal Singh, by other villagers including Man Singh, Teeka Ram and Khanjan. The appellants along with their associates succeeded in making good their escape. A written report of the occurrence was lodged at the police station, Bisauli at a distance of 7 kilo metres at 9.05 A. M. on the basis of which a case was registered. The investigating officer arrived at the scene of occurrence and after completion of the investigation sent the dead body for postmortem. Dr. N. P. Singh had conducted the autopsy and noted the following ante-mortem injuries vide postmortem report Ext. Ka 2 :- 1. Gun shot wound of entry 3 1/2 cm x 3 1/2 cm cavity deep on right side of lower chest 12 cm below right nipple. Blackening around the wound was present. The wound was directing back-ward and to the left. 2. Multiple gun shot wound of entry each 0.25 cm x 0.25 cm x cavity in an area of 12 cm x 13 cm around injury no. 1. On internal examination fracture of 9th, 10th and 11th ribs of right side was noted. Pleura was punctured. Peritoneum was punctured, 33 pellets and 4 Tiklies were recovered from the abdomen cavity. 3 Ox od digested fond was present in the stomach. 22 pellets and one Cork were recovered from liver tissue. Kidney was ruptured and 8 pellets were recovered from right kidney. 3. Pleura was punctured. Peritoneum was punctured, 33 pellets and 4 Tiklies were recovered from the abdomen cavity. 3 Ox od digested fond was present in the stomach. 22 pellets and one Cork were recovered from liver tissue. Kidney was ruptured and 8 pellets were recovered from right kidney. 3. After completion of the investigation the present appellants were tried and to prove its case the prosecution in all examined 11 witnesses of whom PW 1 Room Singh, brother of the deceased, PW 4 Smt. Savitri Devi, alleged wife of the deceased, PW 2 Khanjan and PW 3 Man Singh are alleged to be the eye witnesses of the occurrence. PW 5 Dr. N. P. Singh had done autopsy and has proved the postmortem examination report as detailed above. He further stated that death was caused as a result of the ante-mortem injuries due to shock and haemorrhage. PW 10 Sub-Inspector Khushi Ram is the Investigating Officer and has deposed about the various steps taken by him during the course of investigation. The remaining are formal witnesses. 4. Appellant Kunwar Pal Singh is son of appellant Talewar Singh. The version of Talewar Singh is that he and deceased belonged to the same family and he had no enmity with the deceased or Room Singh. That Agarwpal Singh deceased kept Smt. Savitri after kidnapping her and once he had seen Smt. Savitri along with Room Singh in a compromising pose. Thereupon he had objected and since then Agarpal Singh, had shifted to another house which he had built and started living with Smt. Savitri while Room Singh continued to live in the old house with his mother. That Room Singh since then started bearing grudge against him. The learned Sessions Judge, however, believed the prosecution evidence and hence convicted and sentenced the appellants as above. On being aggrieved, this appeal has been preferred and the learned counsel for the appellants pointed out that the evidence on reccord was wholly insufficient to bring home guilt to the appellants ; that the occurrence had not taken place at about sun rise but must have taken place in the night in between 3 and 4 A.M. ; that Room Singh was not there. He used to live with his mother in the same house in which appellants Talewar Singh Kunwar Pal Singh lived and that the appellants have been falsely implicated on account of enmity. He used to live with his mother in the same house in which appellants Talewar Singh Kunwar Pal Singh lived and that the appellants have been falsely implicated on account of enmity. It was also pointed out that investigation was not free from suspicion. 5. PW 1 Room Singh has admitted in his cross-examination that he himself was unmarried. Besides deceased Agarpal Singh he has another brother Surajpal who is employed in the Army. Smt. Savitri had come to his brother Agarpal Singh deceased about two years back and previously she was wife of Phool Singh. He has also admitted that when Smt. Savitri started living with his brother, Phool Singh was alive and she had issues from Phool Singh whom she had left there. He further admitted that Phool Singh had filed a case against his brother Agarpal Singh and his cousin Ompal in which Smt. Savitri was arrested and thereafter his cousin Ompal was murdered in which Phool and two others were accused. That thereafter one year after the murder of Ompal, Phool Singh was also murdered. That Phool Singh was murdered about two months prior to the murder of Agarpal Singh. That in the murder case of Phool Singh his cousins Chandrapal and Shish Pal were accused in which they were acquitted. He did not known whether any divorce had taken place between Phool Singh and Smt. Savitri before she started living with his deceased brother. He has further admitted that the new house in which the occurrence had taken place and the deceased used to live with Smt. Savitri was built about 9 months prior to tie occurrence of this case and prior to it the deceased along with Smt. Savitri used to live in the old house along with him and his mother. He, however, denied the defence suggestion that because of his illicit connection with Smt. Savitri Agarpal Singh had built a new house and started living there. He also denied that he continued to live in the old house with his mother. He, however, admitted that his mother was very old and blind. He has also denied that the appellants had ever said anything to him about the deceased. He has, however, admitted in his cross-examination that after the murder of Agarpal he continued to live with Smt. Savitri in the same house while his mother alone lived in the old house. He, however, admitted that his mother was very old and blind. He has also denied that the appellants had ever said anything to him about the deceased. He has, however, admitted in his cross-examination that after the murder of Agarpal he continued to live with Smt. Savitri in the same house while his mother alone lived in the old house. Still be denies to have relations with Smt. Savitri though he admits himself to be unmarried. 6. According to Room Singh the motive for the murder was that Ram Bharosey Harijan, servant of appellant Talewar Singh, had filed a false report against him, his brother (deceased Agarpal) and cousin Man Singh and on the day prior to the occurrence Daroga had come to investigate and found the report to be false. Thereupon these appellants had felt enraged and in support of it reliance was placed on the report dated 4-9-77 lodged by Ram Bharosey against Agarpal Singh (deceased), Room Singh PW 1 and Man Singh PW 3 in which it is alleged that they had come to the house of Ram Bharosey and asked him to leave the village and on his refusal be was beaten with fists and kicks. PW 7 Sub-Inspector Ram Gopal Singh Rana was examined and he deposed that he had gone to make enquiry in that case on 21-9-77 and found no truth in that report and he had submitted a final report. In his cross- examination he admitted that the case diary was not before him ; that he had returned from the village in the noon at about 12. He could not say whether during the course of inquiry he had met the deceased and the witnesses. He also admitted that in the general diary there was no entry regarding final report but word 'nil' was written which was not in his hand writing. He also stated that the endorsement in the general diary dated 21-9-77 apparently the numeral 8' of 78 was over written as 7' to make it as 77. He, however, denied that he had no gone to make any inquiry in the village and had completed it fictitiously while sitting in the Police Station. He also stated that the endorsement in the general diary dated 21-9-77 apparently the numeral 8' of 78 was over written as 7' to make it as 77. He, however, denied that he had no gone to make any inquiry in the village and had completed it fictitiously while sitting in the Police Station. He, however, admitted that his departure from the Police Station was noted on 20-9-77 and it was regarding investigation of other cases and it was not mentioned that he was also going to make inquiry in the complaint of Ram Bharosey. Thus no reliance can be placed on the testimony of PW 7 S. I. Ram Gopal Singh Rana. Moreover, if the appellants felt enraged as no action could be taken against the deceased. Room Singh and others on the complaint of their servant that itself prima-facie does not appear to be a sufficient motive for committing the murder and if it was a motive for the murder of Agarpal Singh, then the appellants would have also the same motive for committing the murder of Room Singh and Man Singh but they did not make any attempt to shoot either of them even though both are alleged to be present at the scene of occurrence. That either makes their presence at the scene of occurrence doubtful or prima-facie the alleged motive could not be the reason for the murder of deceased Agarpal Singh. According to the prosecution, the occurrence had taken place at about sun rise. Room Singh PW 1 has stated that he had got up while deceased Agarpal Singh continued to sleep in his room. His wife Smt. Savitri had also got up, hence she started cleaning the house. That he had already returned after easing himself. The date of incident was 22-9-77 when day and night are of equal duration, and the sun rises at about 6 A.M., At the time of post mortem 3 Oz. of digested food was found in the stomach. In their cross- examination both PW 1 Room Singh as well as PW 4 Smt. Savitri have admitted that the deceased Agarpal Singh had taken his meal in the night by 10 P.M. and thereafter he had not taken anything. It has also come in the statement of Smt. Savitri that the deceased had taken Dal and Roti. In their cross- examination both PW 1 Room Singh as well as PW 4 Smt. Savitri have admitted that the deceased Agarpal Singh had taken his meal in the night by 10 P.M. and thereafter he had not taken anything. It has also come in the statement of Smt. Savitri that the deceased had taken Dal and Roti. Normally such food completely passes out of the stomach within six hours. Hence the occurrence under the normal circumstances would have taken place between 3 and 4 A.M. when the food had not completely passed out of the stomach into the intestines. Moreover, no digested food could have remained in the stomach till 5.30 or 6.00 A.M. That raises a strong doubt about the veracity of the prosecution evidence that the occurrence had taken place at about sun rise. PW 1 Room Singh also claims to be inmate of that house, which, as stated earlier, appears to be doubtful as he should have been living with his old blind mother in the old ancestral house when there was no other person to look after her. Admittedly Talewar Singh and others live in the same house though they have different rooms in occupation. He has further stated that there was a dispute with the appellant Talewar Singh regarding the passage in that house as Talewar Singh and others tried to use the same passage which he himself used. He has also stated that Talewar Singh and others had not permitted him to close that passage by raising a wall and on that account for the last 10 years they were not on speaking terms. He admitted that he did not mention this fact in his report nor stated to the Investigating Officer about it. He has also admitted that be stated in the first information report nor to the Investigating Officer that he used to live with his brother in that house. 7. The presence of Smt. Savitri PW 4 in the house in question where the occurrence had taken place has not been challenged but it is only alleged that she could not have witnessed the occurrence as it had taken place during the darkness before the day break. Presence of other two witnesses PW 2 Khanjan and PW 3 Man Singh was challenged on the ground that they were chance witnesses. Presence of other two witnesses PW 2 Khanjan and PW 3 Man Singh was challenged on the ground that they were chance witnesses. PW 2 Khanjan has stated that he was going to case himself on the pond and reached the spot on hearing the alarm. Man Singh PW 3 had stated that he was in his own Gher beside the house in question and after hearing the alarm he had reached there. In the index of the site plan presence of these two witnesses on the scence of occurrence at the door has been shown but apparently it is in a different ink and it is the last entry of the index. It was also suggested to the Investigating Officer that he had interpolated subsequently. Man Singh is cousin of the deceased while Khanjan is alleged to be Bataidar of Room Singh though he has denied it. He has, however, admitted that his house was at a distance of 60 paces from the house in dispute and that he was going to ease himself on the pond where there were other persons also but they had not reached at the scene of occurrence. 8. That apart, learned counsel for the appellants also pointed out that neither of the witnesses had named the assailants till the arrival of the Police. PW 1 Room Singh has admitted that before writing the report he had not told his mother or Mausi about the names of the assailants. PW 2 Khanjan has also admitted that though at the scene of occurrence subsequently persons had also arrived but no talk had taken, place with them. PW 3 Man Singh has also admitted that he had told the names of the assailants for the first time to the Investigating Officer and prior to that he had not told the names of the assailants to any one in the village or to any member of the family. PW 4 Smt. Savitri has also admitted that she had told the names of the assailants for the first time to the Investigating Officer and to none else. This strange conduct on the part of the witnesses is also highly suspicious otherwise the eye witnesses should have immediately given out the names of the assailants as and when the people had come on the spot. This strange conduct on the part of the witnesses is also highly suspicious otherwise the eye witnesses should have immediately given out the names of the assailants as and when the people had come on the spot. Learned counsel for the appellants also drew our attention to the various interpolations in the inquest report which clearly indicate that the Investigation has not been free from doubt. From the inquest report it is clear that earlier only Sec. 302 IPC was mentioned but subsequently Sections 147, 148 and 149 were added after drawing a line above 302 and Sec. 452 after drawing line below 302 as follows' "(147,148,149)". 302 IPC 452 The Investigating Officer was confronted with this in erpolation that the sections have been added subsequently with a different ink. He, however, denied though apparently the ink is different and these additions suggest that because there was no space subsequent to Section 302 IPC these sections were added in an unusual manner above and below Section 302 IPC. Normally such offences are written as 147, 148, 302/149 and 452 IPC and not in the manner as found in the inquest report. That apart Harbir Singh son of Sipahi Singh was not present till the dead body was sent for postmortem as admitted by PW 1 Room Singh as well as PW 2 Khanjan in their cross- examination still he is one of the Panches in the inquest report. 9. According to PW 1 Room Singh, the assailants had fired at the deceased when he had come out of the room and was on the Chabutra and thereafter he had fallen in the court-yard. The Investigating Officer has, however, admitted in his cross-examination that he was not told during the investigation that the deceased was hit when he was at the Chabutra but at the place in the court yard where the blood was found. That apart if the assailants had fired the deceased when he was at the Chabutra as shown in the site plan, the pellets could not be at the point 'C' as shown in the site plan but they would have been on the Chabrutra or embedded in the wall of the kothari. The pellets were found exactly in the south of the position of the assailants while the deceased was, according to the testimony, on the Chabutra towards east from the assailants. 10. The pellets were found exactly in the south of the position of the assailants while the deceased was, according to the testimony, on the Chabutra towards east from the assailants. 10. According to PW 4 Smt. Savitri, who was living with the deceased, all the four appellants had fired the shots with their fire arms. Injury no. 2 multiple gun shot wound is around injury no. 1. That means that it could be of a single shot whereas it is almost impassible that two shots by two different persons could be fired in such a manner as found on the deceased. Plate no. 84 in the Cox Medical Jurisprudence Toxecology 1987 Edition represents a similar injury caused by a single shot. Hence her testimony that all the four appellants had fired at the deceased is to be viewed with great caution. According to PW 1 Room Singh only three accused had fired shots. Kunwar Pal had not fired and para 54 of Cross-examination. That apart, the presence of 3 Oz digested food in the stomach clearly supports the defence version that the occurrence must have taken place near about 4.00 A.M. during darkness, as the deceased had admittedly taken his meal at 10 P.M. on the previous night. The conclusion, therefore, is that the occurrence appears to have taken place during darkness and neither of the eye witnesses had actually seen the assailants and how the deceased was attached. Consequently the appeal is allowed and the conviction and sentence of the appellants under Sections 147, 148 and 302 read with Section 149 IPC are hereby set aside. They are on bail. They need not surrender. Their bail bonds are cancelled and sureties discharged. Appeal allowed.