H. C. MITAL, J. ( 1 ) APPELLANTS Rajesh Pal and Baljit have been convicted and sentenced under Sections 302/149 and 148 I. P. C. to life imprisonment and two years Rigorous Imprisonment respectively. Appellants Gowardhan, Arun Pal and Ram Veer have been convicted and sentenced under Sections 302/149 and 147, I. P. C. to life imprisonment and one year Rigorous Imprisonment respectively by Sri N. S. Shamshery, the then learned Sessions Judge on 27-51985. ( 2 ) ACCORDING to the prosecution murder of Risal Singh, husband of Kabuli, resident of village Niloha, P. S. Mawana, District Meerut, had taken place at about mid-night in between 19/20-6-78, when he was sleeping in his house. F. I. R. of the occurrence was recorded at the police station on 20-6-1978 at 1-30 A. M. on the basis of information on telephone given by Balle Chaukidar of the village. Name of the assailants were not given at that time. After registration of the case investigating officer had arrived and then Kabuli (P. W. 3) (P. W. 1) preetam and (P. W. 2) Balbir gave the names of these appellants as among the assailants whom they had seen in the moon-light. Smt. Kabuli had also given a written application addressed to the S. S. P. Meerut to the Investigating officer and subsequently she also filed a complaint and it is on the basis of the complaint that the case was committed probably because a final report was submitted in the case by the police. At the trial the appellants pleaded not guilty and claimed to have been falsely implicated. To prove its case, the prosecution examined three eye-witnesses, namely Pritam (P. W. 1), Smt. Balbiri (P. W. 2) wife of Pritam and Smt. Kabuli (P. W. 3.) wife of Risal deceased), Pritam (P. W. 1) did not support the prosecution case, hence he was treated as hostile. P. W. 4 constable had accompanied the Investigating Office and taken the dead-body for post-mortem. P. W. 5 Head Constable Tejpal had received telephone from the Chaukidar Balle, recorded the F. I. R. and registered the case. P. W. 6 S. I. Vijai Singh Yadava had conducted the investigation of the, case. From his cross-examination in paragraph 9 of his testimony it appears that the F. I. R. in the case was submitted by the Station Officer, who was then posted at the police station. P. W. 6 S. I. Vijai Singh Yadava had conducted the investigation of the, case. From his cross-examination in paragraph 9 of his testimony it appears that the F. I. R. in the case was submitted by the Station Officer, who was then posted at the police station. ( 3 ) POST-MORTEM of the deceased was conducted by Dr. A. K. Wadhwa on 20-6-1978 at 3-15 P. M. and he noted the following ante-mortem injuries. 1. Gun shot wound of entry 3 cm x 2. 5 cm x skull brain deep over left mastoid region including upper third of left ear pinna. Margins irregular and contused; Blackening and singing of skin was present all round the wound. Directed towards right side of and forward. 2. Two gunshot wounds of exit size 1. 5 cm x 1 cm and 1 cm x 1 cm both through bone depth, on right side face, 2 cm apart, 3. 5 cm in front of right ear. No blackening, singing, tattooing seen. Margins enverted. Injury No. 1 communicated with injury No. 2 on internal examination there was fracture of left temporal and parietal bones as well as of mastoid region and middle one metallic shot piece was recovered from bones of middle cranial fossa. Two metallic shots were recovered from the depth of wound of injury No. 2. ( 4 ) THE learned sessions judge believed the prosecution evidence, hence convicted and sentenced the appellants as above and on being aggrieved this appeal has been preferred. On their behalf it was pointed out that the evidence on record was wholly insufficient to bring home the quilt to the appellants beyond reasonable doubt. It was argued that the testimony of both Smt. Kabuli and Smt. Balbiri was wholly unreliable, particularly because the names were given to Balle Chaukidar admittedly when he was asked to inform the police station. Smt. Kabuli as P. W. 3 has specifically admitted in her cross-examination that on the asking of Balle Chaukidar she had not told him the name of the assailants as she was apprehensive that he might have informed the assailants. Primafacie, that could not be a cogent reason for Smt. Kabuli not to disclose the names of the assailants particularly when she was asked by Balle Chaukidar to inform the police station on phone. Primafacie, that could not be a cogent reason for Smt. Kabuli not to disclose the names of the assailants particularly when she was asked by Balle Chaukidar to inform the police station on phone. Smt. Balbiri (P. W. 2) also admitted that the village Chaukidar had come after the occurrence, but she denied that she herself and Kubuli had told him that they had not seen any ort the assailants. She had further admitted that when Balle Chaukidar had come, she herself, Kabuli and. Pritam were sitting beside the dead-body of Risal, even they the names of the assailants were not given. On behalf of the defence an application was moved before the learned Sessions Judge to examine Balle Chaukidar as Court witness. The learned Sessions Judge, however, rejected the application with the observation that the defence could examine him as its witness. Prima facie the order of the learned Sessions Judge has been erroneous. It was the duty of the Court to see that Balle Chaukidar was duly examined when he was the first person to whom the information of the Occurrence was given by the eye-witness including Smt. Kabuli, wife of the deceased and thereafter he had gone to inform the police station on telephone at her behest ( 5 ) LEARNED counsel for the appellants also challenged the veracity of the testimony of the two witnesses Smt. Kabuli and Smt. Balbiri on the ground that they could not have seen and recognized the assailant. The incident admittedly had taken place at mid-night. According to P. W. 3 Smt. Kabuli, Risal was sleeping inside the verandah, while she here self was sleeping inside in the chhajari of her chauk and at about 11/12 in the night, the assailants entered, the house and fired shot. Thereafter she raised alarm which brought Pritani and Balbiri who had seen the assailants. She also stated that at that time there was moon-light and therein she had recognized the assailants. In her cross-examination she admitted that there was litigation in between Gowardhan accused and Pritam and in that case Risal was witness of Pritam. Thereafter she raised alarm which brought Pritani and Balbiri who had seen the assailants. She also stated that at that time there was moon-light and therein she had recognized the assailants. In her cross-examination she admitted that there was litigation in between Gowardhan accused and Pritam and in that case Risal was witness of Pritam. It was a criminal case in which Balbiri had received a gun shot injury and accused Rajesh Pal was alleged to be the assailant and on the following day of the occurrence there was evidence of Risal in that case and accused Gowardhan and his sons used to press Risal not to give evidence, but Risal had not abjreed. In her cross-examination she admitted that her she-buffalo was tied in the Chauk of Chandar, while she herself was in her Chauk. She denied that at the time of the occurrence she was sleeping at the Chauk outside to look-after her she-buffalo. She also denied to have stated to the Investigating Officer MAIN MAKAN KE BAHAR RASTE PAR BHAINS KI DEKHREKH HETU LETI HUT THI-SOl HUT THI. The Investigating officer had proved this part of her statement under Section 161, Cr. P. C. She could not explain why it was so written. Thus, the witness had tried to show her presence inside the house from where she could see the assailants and has changed the place where she was sleeping on that night as told to the Investigating Officer and as has been shown in the site- map by the Investigating Officer outside on the Rasta. If she had been sleeping there she could not have seen the assailants Smt. Balbiri (P. W. 2) who is also an alleged eye-witness has specifically stated that Smt. Kabuli was sleeping outside in the passage to look-after her she-buffalo. The learned Sessions Judge, has however, tried to explain this anomaly by observing that if subsequently Snit. Kabuli got up and went inside the house. Smt. Balbiri would still be under the impression that Smt. Kabuli was sleeping outside the house in the night and so he did not find any discrepancy to discredit the testimony of Smt. Kabuli. The learned Sessions Judge, has however, tried to explain this anomaly by observing that if subsequently Snit. Kabuli got up and went inside the house. Smt. Balbiri would still be under the impression that Smt. Kabuli was sleeping outside the house in the night and so he did not find any discrepancy to discredit the testimony of Smt. Kabuli. This observation of the learned Sessions Judge is based on his self assumption as Smt. Kabuli did not state that she was earlier sleeping outside in the passage as shown by the Investigating Officer and stated by Balbiri, but she has subsequently gone inside the house. ( 6 ) SMT. Balbiri had said that she was in the house and her husband was also in the house when the shot was fired. She saw the appellants beside another person and recognized them in the moonlight. However, subsequently in her cross-examination she stated that she was sleeping in her southern house which is her Baithak and Pritam and Brijpal were also there; that they were not sleeping but awoke and that from her Baithak she could see Risal sleeping. However, the Investigating Officer (P. W. 6) S. 1. Vijai Singh Yadava specifically stated in his cross-examination in the end of paragraph 4 that from the place where Balbiri was sleeping, cot of Risal was not visible. It is, thus, clear that Smt. Balbiri could not have seen the firing of the shot at Risal. It is not in the statement of P. W. 2 Smt. Balbiri and P. W. 3 Smt. Kubuli that they had got up after hearing the shot and they saw these assailants running out from the house and then recognized them. Their version, however, is that they had seen them while firing the shot at the deceased. There is no other very material contradiction in the version of Smt. Kabuli as in her statement to the Magistrate in her complaint she had stated that she was sleeping on a cot near her husband. Thus the testimony of both Smt. Kabuli and Smt. Balbiri is highly suspicious and does not inspire credence on the point as they were not in a position to see the occurrence from the place, where they were sleeping. Thus the testimony of both Smt. Kabuli and Smt. Balbiri is highly suspicious and does not inspire credence on the point as they were not in a position to see the occurrence from the place, where they were sleeping. ( 7 ) THAT, apart, P. W. 2 Smt. Balbiri had a motive to give evidence against the appellants as a case was already pending against them for causing gun-shot injury to her and her husband and, therefore, she cannot be said to be an independent witness. Her husband (P. W. 1) pritam has, however, specifically denied to have seen and recognized any assailant. The learned sessions Judge has, however, placed reliance on the Statement of Pritam before the Magistrate in support of the complaint. There was no such statement recorded by the Magistrate, but there are affidavits of Pritam Singh and Balbiri in support of the report of Smt. Kabuii to the S. S. P, Meerut. The affidavit of Pritam had been marked Ex. 3 and that of Balbiri Ex. 2 by the learned Sessions Judge on the statement of the Investigating officer, who produced them and was confronted with them. Primafacie these two affidavits could not be admitted on record as evidence and it is surprising that the learned Sessions Judge has treated them as statement before the Magistrate. In fact committal of the case to the Sessions Court has been irregular as the same could be after recording testimony of all the witnesses, while in the present case no statement on oath was recorded of any witness except that of Smt. Kabuli, the complainant At this stage we do not think it proper to quash the proceedings on that ground after twelve and a half years of the occurrence particularly when the appellants have been convicted without any cogent, sufficient and reliable evidence against them. ( 8 ) THE conclusion, therefore, is that the conviction and sentence of the appellants as passed by the learned Sessions Judge under appeal are liable to be quashed. The appeal is allowed. Their conviction and sentences are hereby set aside. They ate already on bail. They need not surrender. Their bail bonds are cancelled and sureties discharged. Appeal allowed. .