JUDGMENT U.K.Verma, J. - This is an apoeal against the judgment and order of Sri. N.N.Chandha, Sessions Judge, TehriGarhwal dated 13.1.79 convicting thoutiya Shiv Ratu and Bijal Singh u/s 302 read with section 34of the I.P.C. and sentencing each of them to imprisonment for life and to pay a fine of Rs. 2000/ and in default of payment of fine to undergo R.I. for one year. 2. The prosecution case as disclosed in the first information report Ext. Ka 9 is that when Nihal Singh was returning to his house between half past ten and elevan P.M. from Hudoli Bazar with oil he cried a loud for help running downwards that Thontiya, Bajal Singh and Shiv Ratu were making murderous assault His brother Ogar Singh who was staving at his house responded to his call uttering that he need not worry as he was corning to this rescue. When Ogar Singh reached near Nihal Singh, he saw Thontiya carrying a Kulhari and Shivatu a danger. The others accompanying him were Bijal Singh and Kansaru and a few more persons who could not be identified in the light of the torch as they were behind the bushes. They were all fleeing away. His brother Nihal Singh had died as a result of the injuries inflicted and blood was oozinq out from his wounds. 3. The report of the incident had been lodged next day at 9.45 A.M. in the police station Barkot which was at a distance of 21 Kms. from the place of occurrence. 4. The prosecution to substantiate the charge had examined Ogar Singh P.W.8) and Smt. Kedari (P.W.9) as the witnesses of the occurrence. Chhatar Singh (P.W.1) and Nagan Singh (P.W.13) who had investigated the case after taking it over from Durga Prasad Jasola (P.W.12) deposed that at the pointing of the appellant Thoutiya, Kulhari used in the assault was recovered from beneath the pine leaves in the jungle of Deothal and danger was recovered from under neath a big stone in the same jungle at the pointing out of Shiv Ratu.Chhatar Singh (P.W.1) and Magan Singh (P.W.13) proved the recovery memos in respect of the Kulhari and danger on record. The Prosecution besides examined a number of other witnesses. Durga Prasad Jalola (PW 12) stated that he prepared the in guest report Ext. Ka. The Prosecution besides examined a number of other witnesses. Durga Prasad Jalola (PW 12) stated that he prepared the in guest report Ext. Ka. 5, recovery memo in respect of the articles found on the dead body of Nihal Singh and within a distance of 20 steps around it marked Ext. Ka 1, plain and blood stained earth Marked Ext. ka.2, siteplain0f the place of incident Ext. Ka 16, diagram of the deed body Ext. Ka 13, its challan Ext. Ka 14, the letter written by him for postmortem examination Ext. Ka 15 and the recovery memo in respect of the torch of the informant Ext. Ka.6. 5. Balam Singh (P.W.2) corroborated the statement of D.P. Jasola the first I.O. with regard to the recovery memo Ext.Ka. 1 and admitted his signature thereon as a witness but in the cross examination made statement damaging to the prosecution which will be dealt with at the appropriate place. 6. Naunihal Singh P.W.3 gave out that the coaccused Kansaru who had been acquitted by the trial court had told him that he should tell the deceased not to make accusation against him to the Parkot Police as Thontiya appellant alone had a grouse with him. He proved the contents of the inquest report Ext. Ka 5 and recovery memo in respect of the torch Ext.Ka 6. He too like Balam Singh (P.W.2) made statement in the crossexamination where from it follows that the first information report was antetimed and the investigation was tainted. 7. Bahadur Singh (P.W.4) statod that about 7 P.M. on the 18th day of the preceding Chait, he had been Thontiya, Shiv Ratu and Kansaru talking with each other but not much turns on it. 8. Khima Nand (P.W.5) pointed that Nihal Singh had gone to get mustard crushed at his oil mill at 8.30 P.M. on 31.3.78 and returned back at 10.30 p.m. 9. Dr. P.K. Bhatnagar (P.W.6)proved his postmortem report Ext. Ka 7 in A70 respect of Nihal Singh which he prepared at 12 P.M. on 2.4.78. It follows there from that Nihal Singh had sustained the under mentioned three injures: 1. Incised wound on the upper side of the right eye brow to the upper part of the left ear. Bones of the skull completely cut. 2. Incised wound 6"x 2" x2" below the neck at the level of the third thorasic vertebrae. 3. It follows there from that Nihal Singh had sustained the under mentioned three injures: 1. Incised wound on the upper side of the right eye brow to the upper part of the left ear. Bones of the skull completely cut. 2. Incised wound 6"x 2" x2" below the neck at the level of the third thorasic vertebrae. 3. Incised wound from the right pinna of the ear to the right lower lid of the eye. Bones completely cut. 10. In connection with the internal examinations of the stomach Dr. Bhat Nagar noted that it was full with undgested food. He found both the small and the large intestines full of faecal matter. 11. Smt. Surtani (P.W.7) stated about the motive of the crime. From her statement it follows that Nihal Singh had helped her in obtaining divorce from Thontiya appellant and as a result thereof he had become inimical to him. 12. The appellants had pleaded not guilty. Their defence was that they had been falsely implicated on account of enmity. The Police, they pointed, had arrested eleven persons in connection with the crime as given out by Nihal Singh (P.W.3) and locked them all in the police station Barkot and subsequently cooking evidence against the appellants roped them in the crime in question, i hey did not lead oral evidence in defence. 13. We have heard the counsel for the parties at length and went through the evidence on record. 14. The first question which merits consideration is as to whether Ogar Sinqh(P.W.B) and Smt. Kedari (P.W.9) could safely be held to have heard the cries of Nihel Singh deceased and soon after noticed the appellants running away In the first information report it has not been mentioned that Ogar Singh had actually seen any of the appellants assaulting Nihal Singh deceased. From the allegations in thefirst information report it follows that they were identified at a time when they were running away. Thontiya was carrying a Kulhari and Shiv Ratu a dangar ancj their asscitates could not be identified as the bushes obstructed the view of the informant. In his statement, however, Ogar Singh who on his own showing was a chance witness tried to show that Thontiya, Shivratu and Vijal Singh and Kansaru stopped the assault only when he reached near them and started running away. In his statement, however, Ogar Singh who on his own showing was a chance witness tried to show that Thontiya, Shivratu and Vijal Singh and Kansaru stopped the assault only when he reached near them and started running away. The appellant Bijaliai in the first information report had not been shown to have assaulted. It is obvious that at the trial stage, the prosecution made an effort to improve the case. In the crossexamination, Ogar Singh pointed that he did not go to the Patwari police outpost to inform about the incident as he was all alone. He also admitted not to have cried a loud to inform the people of the Hudoli Bazar that the appellants had committed there murder. He stated to have scribed the report at the place of occurrence at 6 a.m. in the morning next day and proceeded towards the polibe station. He denied to have again gone near the dead body. He pointed to have got the copy of the first information report on 2.4.78 and not soon after it was lodged. He was confronted with his statement u/s 161 Cr.P.C. that there was no mention in it that his report could not be taken down at the Khavali Police Station as the Station House Officer of that circle was not present. He pointed to have run 110 to 115 steps to be able to cross the boundary wall of Nihal deceased. The dead body of Nihal, he gave out was further 100 steps downwards. 15. The widow of the deceased Smt. Kedari (P.W.9) stated that when she and her brotherinlaw heard the cries of Nihal Singh that they were assaulting him, they both came out of the verandha with their torches and proceeding a few steps further, her brother inlaw enquired as to what was the matter and it was then .that her husband told him that Thontiya, Shiv Ratu and Bijalia were assaulting him. When they came downwards near Nihal the assailants Thontiya, Shivratu Kansaru and Bijalia fled away. Thontiya had a Kulhari and Shivratu had a danger. Nihal Singh as a result of the injuries inflicted had died. She went back leaving Ogar Singh near the dead body as there were small children in the house. She did not point to have gone to others to inform them of the incident. Thontiya had a Kulhari and Shivratu had a danger. Nihal Singh as a result of the injuries inflicted had died. She went back leaving Ogar Singh near the dead body as there were small children in the house. She did not point to have gone to others to inform them of the incident. Thoutiya appellant had become inimical to her husband as he had helped Surtan in obtaining her diverse from him. In the crossexamination, she pointed that Ogar Singh had come to her house on that very day. She denied to have heard Nihal Singh crying for being saved although its was so alleged in the first information report. She tried to paint the picture that she had seen Nihal Singh being assaulted although she admitted that she could not say how many persons were involved. The dead body of Nihal Singh was found further 107 to 108steo beyond the boundary wall. She stated not to have seen any police on the day the dead body of her husband had been removed. She acknowledged that she was earlier married to Fulak Singh but without obtaining divorce had come to live with Nihal Singh. 16. An analysis of the statements of these two P.W.s. shows that it was very unlikely that they could have reached near the scene of occurrence after picking their torches and noticed any of the assailants for they had to cover a distance roughly of about 200 steps. Besides they had hardly opportunity to identiy the faces of the assailants as from the allegations in the first information report itself, it follows that they were fleeing away. Smt. Kedari did not affirm that Nihal Singh had cried for help. She also did not state that on the first occasion itself Nihal Singh had cried aloud the names of the assailants. The prosecution evidence, it is obvious suffers from the inherent improbability about Smt. Kedari and her brother inlaw Ogar Singh having been able to cover the distance indicated above to be in a position to see the assailants of Nihal Singh. The effort on the part of the prosecution to improve upon the version setforth in the first information report further gives a jolt to the statements of these two alleged eye witnesses. In this context the statement of Balam Singh (P.W.2) in the crossexamination, further deserves notice. The effort on the part of the prosecution to improve upon the version setforth in the first information report further gives a jolt to the statements of these two alleged eye witnesses. In this context the statement of Balam Singh (P.W.2) in the crossexamination, further deserves notice. He oointed that L Ogar Singh (P.W.8) was present when on receiving the news about the murder of Nihal Singh at 9 a.m. he reached the scene of occurrence and the recovery memo Ext.Ka. 1 was prepared. He claimed to have gone to the S.D.M. who was stated to have sent him to Dhukana to find out whether the police had reached the place of incident or not. According to him, the S.D.M. reached the scene of the incident with Sri Dharam Singh Megi and the police later arrested Thoritiya, Kansaru, Bijal Singh, Shivrath, Bharat Singh, Cyan Singh, Sangramu Jomatu, Gari and Baru and took a search of their houses but nothing incriminating was found. All these persons were pointed to have been taken to the police station but subsequently Ramu, Bharat Singh, Cyan Singh, Sangramu, Gomtu, Gari and Baru were released. The prosecution did not declare Balam Singh hostile. Naunihal Singh (P.W.3) also stated in the crossexamination that Smt. Kedari had sent Samadu to find out about Nihal Singh and that Samdu told him that some one had killed him and he was going to inform the brothers of Nihal Singh about it. This witness also pointed that after the preparation of the inquest report Ogar Singh had gone to lodged the report. Naunihal Singh also had not been declared hostile and crossexamined by the prosecution. The statements of these two witnesses show that the first information report could not but he held to have been antetimed. The explanation given by Ogar Singh for not lodging the first information report at the nearest police station or at the Patwari police outpost promptly is unworthy. It appears that till the arrival of the police at the scene of occurrence, there was no information about the persons who had committed the murder of Nihal Singh. The recoveries alleged to have been made at the pointing of the appellants Thontiya and Shivratu also do not inspire confidence for Chhatar Singh admittedly was related to the deceased and could falsely implicate the appellants on account of the enmity between them and the deceased. The recoveries alleged to have been made at the pointing of the appellants Thontiya and Shivratu also do not inspire confidence for Chhatar Singh admittedly was related to the deceased and could falsely implicate the appellants on account of the enmity between them and the deceased. If the appellants would have been involved in the crime in question, they were not likely to have been present at the time when the inquest report was prepared. Besides so many persons as pointed out by Balam Singh would not have been arrested if the report had been lodged at the time indicated in it. The Sessions Judge does not appear to have given due consideration to the above infirmities in the prosecution evidence and arrived at a wrong finding about the complicity of appellants in the crime in question. The appellants at any rate are entitled to the benefit of doubt. Order 17. The appeal is allowed. The judgment and order convicting the appellants u/s 302 read with 'section 34 I.P.C. and sentencing them to imprisonment for life and to pay a fine of Rs. 2000/are set aside and they are acquitted of the charge u/s 302 read with section 34 I.P.C. They are on bail. They need not surrender to their bail bonds which are discharged. Appeal Allowed