JUDGMENT Palok Basu, J. - This Government appeal has been preferred by the State of U.P. against the acquittal of respondent Ram Swarup, Babu Ram, Ram Pal and Ram Bilas of charge under Section 302/34, I.P.C. as passed by II Additional Sessions Judge, Shahjahanpur on 30-8-1978 in Sessions Trial No. 231 of 1978. 2. The charge against the respondents was that by intentionally causing the death of Phool Singh on 24-1-1978 at about 5 p. m. near the brick-kiln in village Chaundera, police station Sehramau South, district Shahjahanpur, they committed an offence punishable under Section 302/ 34, I.P.C. 3. On 24-1-1978 Prahlad Singh (P. W. 1) and the deceased brother Phool Singh had gone to Shahjahanpur to witness the election and were returning from there on their cycles. At about 5 p. m. they reached near the brick-kiln. There is a road running from north to south. Deceased Phool Singh was ahead of Prahlad. From the western side of the Rasta accused Ram Swarup armed with a Bhala came out from behind the bushes and said that Phool Singh be surrounded. As soon as Phool Singh got down from the cycle the other three accused also came out from behind the bushes. Accused Rampal had a Tamancha while the other two accused had guns. As soon as Phool Singh made an effort to run away Rampal discharged his Tamancha hitting him. Phool Singh ran towards the brick-kiln which is to the north but was chased by the accused. Phool Singh was raising alarm. Phool Singh first went to the kitchen, then to the room to the south of the kitchen and then to the office of the brick-kiln. Accused Rampal, Ram Bilas and Babu Ram discharged their weapons on Phool Singh who fell down on the entrance of the office. The incident was witnessed by Kanhai (P. W. 3),, Baiju, Jamil and Radha Kishan. The accused then ran away towards the west. P. W. 1 Prahlad when went to the door of the office and found his brother dead. There were blood stains and pellets at the spot. He got a report of the incidents scribed by Chhotey Lal Ext. Ka 1 and made it over at the police station Sehramau South. P. W. 4 Kirpal Singh, Head-constable prepared the F.I.R. Ext. Ka 3 and made endorsement in the General Diary Ext. Ka. 4. There were blood stains and pellets at the spot. He got a report of the incidents scribed by Chhotey Lal Ext. Ka 1 and made it over at the police station Sehramau South. P. W. 4 Kirpal Singh, Head-constable prepared the F.I.R. Ext. Ka 3 and made endorsement in the General Diary Ext. Ka. 4. A. S. I. Gauri Shanker and S. 0. P. B. Singh took up investigation in the case. The Investigator took specimen of blood and pellets in his possession and prepared memos Exts. Ka 5 and Ka 6. The Investigator prepared challan corpse. Panchayatnama and diagram Exts Ka 8 to Ka 10 and sealed the corpse which was received by Dr. Sudhir Singh who performed autopsy and prepared a report Ext. Ka. 2. The Investigator prepared a siteplan Ext. Ka 7 and on completion of the investigation submitted charge-sheet Ext. Ka. 11. 4. The accused denied the prosecution case and claimed to have been implicated falsely. They did not examine any witness in defence. 5. There are only two eyewitnesses in this case, i. e. P. W. 1 Prahlad and P. W. 3 Kanhai. It is admitted that series of litigation had been going on between the said witnesses Prahlad and deceased on the one hand and the respondent on the other. So far as P. W. 3 Kanhai is concerned he was not a resident of the village but had been living ten kilometres away from the place of occurrence. It was suggested to these two witnesses that they are first cousin while that suggestion had been denied but it has been admitted that both belonged to the same caste. 6. The Trial Judge has disbelieved the presence of Kanhai on the ground that he was totally a chance witness and that the necessary documentary evidence which would have proved his presence at the spot has not been produced. That documentary evidence was the memorandum or Parcha which was issued to him by the owner of the brick-kiln for permitting his bullock-cart to carry the bricks. His allegation that he had gone to sell paddy was also disbelieved because it was not necessary for him to come all this way for that purpose. 7. The statement of P. W. Prahlad has been criticised by learned trial Judge on the ground that it is contradicted by medical evidence. His allegation that he had gone to sell paddy was also disbelieved because it was not necessary for him to come all this way for that purpose. 7. The statement of P. W. Prahlad has been criticised by learned trial Judge on the ground that it is contradicted by medical evidence. The F.I.R. suggests that accused while chasing Phool Singh fired upon him. Prahlad stated that the accused did not do so. This improvement in the evidence appears to have been made because the injuries sustained by the deceased were in front portion of the body. (P. W. 1) Prahlad has further stated chat Phool Singh was fired upon four times whereas (P.W. 3) Kanhai has said that seven shots were fired. It may be remembered that the initial case of three shots was enlarged into seven shots after the statement of P. W. 2 Dr. Sudhir Singh came to be recorded who has said that there must have been at least six shots hitting the deceased. 8. The learned trial Judge has further doubted lodging of the F.I.R. at the time alleged by the prosecution. It has been admitted by the head- constable (P.W. 4 Kirpal Singh that on 24-i-1978 no other cognizable offence was registered at the police station. The distance of seven miles was too long to be covered within 60 to 65 minutes so as to get the F.I.R. lodged at 6.15 p. m. alleging the incident to have been happened at 5.15 p. m. The learned trial Judge held that implicit reliance cannot be placed on the testimony of two eye-witnesses. Sri R. P. Tripathi, learned A.G.A. has been heard at length in support of this appeal who also placed the entire record for consideration which has been examined thoroughly. Sri P. N. Misra, learned counsel for the respondents has supported the judgment of acquittal. 9. After considering the whole matter it cannot be said that the order of acquittal recorded by trial Judge requires up-setting as it is based on a correct appraisal of evidence. ' 10. On the last date an order was passed directing non-bailable warrants to issue against the respondents for their failure to present themselves in this case. An application has been moved today for recalling of the said order. It is hereby directed that the aforesaid order dated 20-2-1991 for issuing non-bailable warrants shall not be executed any more. ' 10. On the last date an order was passed directing non-bailable warrants to issue against the respondents for their failure to present themselves in this case. An application has been moved today for recalling of the said order. It is hereby directed that the aforesaid order dated 20-2-1991 for issuing non-bailable warrants shall not be executed any more. With the aforesaid observations this appeal is dismissed.