JUDGMENT U. K. Varma, J. 1. These are three Criminal Appeals nos. 3514 of 1978, 394 of 1979 and 461 of 1979 arising out of the Judgment and order of Sri Rajendra Narain Sinha III Additional Sessions Judge, Fatehpur in the Sessions Trial no. 295 of 1977. He had convicted Vishwanath, Ram Swarup, Badla and Mohan Lal under sections 302 read with 149 and 148, IPC and sentenced them to imprisonment for life on the first count and to three years rigorous imprisonment on the second, with both the sentences running concurrently. He although acquitting Ram Dhani, Bachchi Lal, Rajua, Ram Narain, Kripa and Ram Sajiwan under section 302 read with section 149, IPC had also convicted them under section 148, IPC and sentenced them to three years rigorous imprisonment. 2. The uncontroverted facts are that in the night between December 9 and 10, 1976, the three brothers Bhagauna, Ram Adhin and Devi Dayal sons of Dwarika had been shot dead in the abadi of the village Jalwapur and Kallu son of Dhiraj resident of village Ghana was assassinated soon after to the west of the above abadi by the side of the village path in the field of Bhikha and others. The thatched roof and the Khaprail structure of the appellant Ram Dhani over land in respect of which his deceased brothers were not prepared to give up their rights without consideration in his favour had also been burnt by the miscreants in the course of the above murders. The prosecution case is that the appellant Ram Dhani wanted to grab an ancestral house belonging to him and his brothers situated to the north of the house of Rameshwar Pandit. The son of -Ram Adnin deceased named Gopal resisted the greedy design of Ram Dhani. The police apprehending breach of peace, initiated cases both against Ram Dhani and Gopal under sections 107/116 of the Code of Criminal Procedure. The Pradhan of the village Rithwa named Ziauddin intervened and brought about a settlement where under Ram Dhani was to pay Rs. 500/- to his three deceased brothers to euclusively own the disputed ancestral house. Ram Dhani inspite of the compromise in the Bindki court did not pay the agreed amount of Rs. 500/- and resumed construction over the ancestral land which he had earlier begun before the above case. 500/- to his three deceased brothers to euclusively own the disputed ancestral house. Ram Dhani inspite of the compromise in the Bindki court did not pay the agreed amount of Rs. 500/- and resumed construction over the ancestral land which he had earlier begun before the above case. Angered by the conduct of his brothers in respect of this property in the night between December 9 and 10, 1976 at 10 p.m. accompanied with his three sons Vishwanath, Ram Swamp and Badla armed with guns and another son Bachchi Lal carrying a 'looka' and he himself a bundle of burning 'Sanai' and his party men Mohan a pistol; Ram Narain, Kripa and Ram Sajiwan spears and Rajua too a 'looka' arrived at the house of Bhagauna who was lying on a cot. Near by him were the informant Jagarnath and his brother Gokul and the witnesses Ghasita and Zalim conversing in between themselves. The wives of Jagarnath and Gokul named Mukhratia and Rania and a grand son of Bhagauna named Shyam Lal were listening to the gossip of their elders. Ram Dhani exhorted these accompanying him to kill Bhagauna. His sons Vishwanath, Ram Swarup and Badla there upon shot him dead. Ram Dhani thereafter went to the disputed ancestral house and set it on fire conveying that be had done so to rope in the sons of Bhagauna in a criminal case. Ram Dhani and his men next proceeded to the house of Ram Adhin and there they instigated each other to kill him. The appellants Vishwanath, Ram Swarup and Badla, as in the case of Bhugauna, also shot him dead. It was then that Devi Dayal arrived. He told the assailants to kill him too when they had already assassinated his two brothers. At this Kara Swarup, Vishwanath and Badla and also Mohan fired at him. Having killed Bhagauna, Ramadhin and Devi Dayal, the assailants proceeded south west towards Rithwa The truck of Sheo Singh of Bhikham loaded with coarse sand and carrying thirty to thirty five persons about the same time happened to reach there. Those on the truck challenged the assailants. They thereupon opened fire felling Kalua The assailants managed to make good their escape as no one from the village came to the rescue of the victims out of fear. Those on the truck challenged the assailants. They thereupon opened fire felling Kalua The assailants managed to make good their escape as no one from the village came to the rescue of the victims out of fear. The appellants had been identified in the light of the burning materials in the hands of the three appellants, the 'dhibri' in the house of Bhagauna, the light emanating from the thatched roof set on fire by Ram Dhani, the lantern in the house of Bhagauna and also the moon. 3. The prosecution had examined Jagarnath PW 2, Ghasita PW 3, Smt. Samrati PW 4 and Gopal PW 5 as the witnesses of the occurrence. In the first information report Ex. Ka 5 both Jagarnath and Ghasita were shown to have been present at the house of Bhagauna when the assailants arrived fully armed and carrying burning 'looka' and 'silha' perhaps for .not making mistake in identifying those whom they wanted to kill. Both these witnesses stated to have seen the incident from start to finish as alleged in the FIR Smt. Samrati PW 4 is the daughter in Jaw of Devi Dayal deceased. She narrated to have come out on hearing the sound of firing at the house of Bhagauna and witnessed the burning of the disputed ancestral house by Ram Dhani appellant and the shooting of Ramadhin and after him of Devi Dayal in the circumstances mentioned in the FIR and by the person named therein. Gopal PW 5 is the son of Ramadhin deceased. He deposed as to how Vishwanath, Ram Swarup and Badla one after the other had fired at his father killing him and how Devi Dayal had been shot dead by them and Mohan appellant when he pointed that there he was awaiting to be done to death when his two brothers had already been assassinated. He also deposed that he, Jagarnath and Ghasita had gone behind the assailants and noticed the shooting down of Kalua who was one of the twenty five to thirty persons who had challenged the appellants from the truck. So far as motive of the crime is concerned, the prosecution witness Jagarnath PW 1 stated about it in his examination-in-chief. The other witnesses deposed about the same when questioned in regard to it in their cross-examination. 4. Chhotey Lal PW 6 proved the check report Ex. So far as motive of the crime is concerned, the prosecution witness Jagarnath PW 1 stated about it in his examination-in-chief. The other witnesses deposed about the same when questioned in regard to it in their cross-examination. 4. Chhotey Lal PW 6 proved the check report Ex. Kha 5 and the G. D. entry Ex. Ka 8 by which this case was registered against the appellants. Prahlad Singh PW 7 who is the Investigating Officer proved the inquest reports in respect of the deceased, the recovery memos regarding the dhibri, lantern, the articles on the bodies of the four deceased the blood stained and plain earth, the ashes of the burnt thatched roof of the house of the appellant Ram Dhani, the site plan of the places of the incidents and the documents which he had prepared for facilitating the post-mortem examinations of the deceased by the Medical Officer. 5. Dr. Abdul Wahid PW 1 proved his post mortem reports in respect of Kalua done on 11-12-76 and Ram Adhin, Devi Dayal and Bhagauna done on 12-12-76. He explained that the post mortem examinations of Ram Adhin, Devi Dayal and Bhagauna could not be done on 11-12-76 as the FIR relating to their murder reached him on 12-12-76 6. All the accused had denied their participation in the crime in question. The accused Ram Dhani aged seventy years, however, admitted that there was an ancestral house which his deceased brothers Bhagauna, Ramadhin and Devi Dayal allowed him to occupy only after they had been paid Rs. 500/- under an agreement brought about through the mediation of the Pradhan at the time when the police had initiated proceedings under section 107/116 of the Code of Criminal Procedure both against him and Gopal PW 5, son of Ramadhin deceased. Bhagauna, Ramadhin and Devi Dayal, he pointed had been killed when the dacoits had raided their house. He had been roped in this case by Jagarnath and Gopal who bore ill-will towards him. The accused Vishwanath son of Ram Dhani appellant pointed that he and the other accused had not formed any gang. Gopal and Jagarnath bore ill-will towards him because of an earlier 'marpit' and cooked this false case. The fact is that unknown dacoits had killed Bhagauna, Ramadhin, Devi Dayal and Kalua. The accused Vishwanath son of Ram Dhani appellant pointed that he and the other accused had not formed any gang. Gopal and Jagarnath bore ill-will towards him because of an earlier 'marpit' and cooked this false case. The fact is that unknown dacoits had killed Bhagauna, Ramadhin, Devi Dayal and Kalua. The prosecution witnesses Gopal (himself) on 10-12-76 had sent an application to the Superintendent of Police, Fatehpur to this purport. The dispute between his father and his uncles with regard to the ancestral house had been resolved through the intervention of the Pradhan Ziauddin and the other panches. His father Ram Dhani had paid Rs. 500/- to his uncles for owning disputed house exclusively. The compromise had been reduced to writing and each of the parties had been handed a copy of the written agreement. Ram Swarup accused son of Ram Dhani also denied his complicity in the crime in question. He too pointed that the proceedings under sections 107/116, CrPC had been determined on the basis of a settlement between his father Ram Dhani and his deceased brothers and that the consideration for their share if any in the house had been paid in the presence of the Pradhan and the other panches. Jagarnath had not been present at the time of the incident. He was sent for. He lodged the false report on account of enmity with the connivance of the police. Badla accused son of Ram Dhani stated that Ram Dhani had paid money to his brothers to exclusively own the ancestral house. His brother Vishwanath had given a beating to his cousins Jagarnath, Gopal and Gokul and to his uncle Bhagauna. It is for this reason that they had been falsely implicated although the dacoits had looted the houses of Bhagauna and Ram Dhani deceased and committed the four murders. Bachchi Lal accused son of Ram Dhani, pointed that under the compromise in the case under section 107/116 CrPC an amount of Rs. 500/- had been paid to his uncles and that the accused were being prosecuted on cooked version. The fact is that a dacoity had taken place at the house of Ram Dhani and Bhagauna as he had learnt. 500/- had been paid to his uncles and that the accused were being prosecuted on cooked version. The fact is that a dacoity had taken place at the house of Ram Dhani and Bhagauna as he had learnt. The accused Rajua, Kripa and Ram Sajiwan who are sons of Gokul, Ram Narain and Mohan Lal who are the grand sons of Brahma, the brother of Gokul pointed that they had nothing to do with the dispute between Ram Dhani accused and his deceased brothers Bhagauna, Ramadhin and Devi Dayal in respect of any house. The prosecution witness Ghasita PW 3 grand son Mathura brother of both Gokul and Brahma had roped them in this case as price for agreeing to be a witness in this case. Ghasita was inimical to them due to a 'marpeet' in respect of which there were cross-criminal cases and also litigation with regard to the property of Chunka, the brother of Gokul, Mathura and Brahma. 7. The accused in defence had examined Abdul Ahmad Siddiqui, Record Keeper of the police office Fatehpur DW 1 to prove that Gopal PW 5 had submitted an application in respect of the incident in question registered at the serial no. 216 of the concerned register and it had been marked for enquiry to the Station House Officer, Chandpur. 8. Brij Lal DW 2 stated that he was on the truck along with Kalua and others and he had seen Kalua being shot dead when he jumped from the truck after the dacoits had been challenged on the out-skirts of the village Jawapur. There were fifteen to sixteen persons in addition to the twenty one persons engaged in the loading of sand in the truck. They all after the shooting of Kalua ran towards the abadi of Jalwapur leaving the truck there. The wife of Gokul told the persons who had come from the village Awazipur that scoundrels had committed the crime in question. She expressed a desire to go to the police out post on the truck. She was taken there. The police party arrived around 3 a.m. in the morning. They went to the houses wherein the dead bodies were lying. The articles in those houses were scattered. The truck aforesaid belonged to Shiv Singh. He expressed inability to tell the names of the conductor or driver of the truck or its number. She was taken there. The police party arrived around 3 a.m. in the morning. They went to the houses wherein the dead bodies were lying. The articles in those houses were scattered. The truck aforesaid belonged to Shiv Singh. He expressed inability to tell the names of the conductor or driver of the truck or its number. The brother of Kallu named Kanjit was pointed to have boarded the truck along with others at the crossing. He denied the suggestion on behalf of the prosecution that being a relative of the appellants, he had made false statement to save them. The Sub-Inspector Ram Sajiwan DW 3 proved the report lodged against Ghasita and Shiv Pal by Smt. Chaturia wife of Shiv Narain under sections 324, 504 and 506 of the Indian Penal Code marked Ex. Kha 1 and the report which Ghasita had lodged against Rajua, Kripa Bhaiya Deen and Kalua under sections 452, 324 ana 323, IPC and the G. D. entry regarding it marked Ex. Kha 2. 9. Siya Ram DW 4 who too was examined in respect of the report lodged by Gopal gave out that there was no entry in respect of his application in the post station Chandpur. 10. Having dealt with the outline of evidence adduced in this case by the prosecution and also the accused, 1 proceed to examine whether the appellants could be said to have the motive to commit the crime in question which the Additional Sessions Judge has answered in the affirmative. In the FIR Ex. Ka. 5, the accused Ram Adhin and his nine other associates were alleged to have caused the murder of Bhagauna and Devi Dayal on account of dispute relating to the ancestral home; the murder of Devi Dayal as he had resented the killing of his brothers and offered himself to be done to death, and the murder of Kalua because jumping from the truck he had challenged the assailants. The counsel for the appellants tried to show that on the date of the incident there had been no subsisting dispute regarding; any house between Ram Dhani and his above deceased brothers. It is not disputed that in respect of the ancestral house which Ram Dhani wanted to occupy, the paches had brought about settlement where under Ram Dhani was to pay Rs. 500/- to his brothers to own it exclusively. It is not disputed that in respect of the ancestral house which Ram Dhani wanted to occupy, the paches had brought about settlement where under Ram Dhani was to pay Rs. 500/- to his brothers to own it exclusively. The Pradhan Ziauddm it was also admitted to both the parties had intervened and had assured that Ram Adhin would pay the agreed amount and the proceedings under section 107/116 or the CrPC had been dropped both against Ramadhin appellant and Gopal PW 5. The prosecution witness Jagarnath PW 2 tried to show that Ramadhin evaded payment but persisted with construction over the disputed ancestral land. Impression has also been given in the FIR that Ziauddin did nothing to arrange payment by Ramadhin. There is however, not an iota of evidence where from it follows that in between 3-12-76 and 9-12-76 there was any altercation between Ram Dhani appellant and his deceased brothers or their family members. In fact there is nothing to show that at any point of time there had been direct confrontation between Ram Dhani and his deceased brothers which could lead to the breach of the peace. The likely confrontation with regard to the ancestral house was alleged to have been between Ram Dhani and Gopal PW 5 and not between Ram Dhani and those killed namely Bhagauna, Devi Dayal and Ramadhin. The prosecution witness no. 3 Ghasita in his cross-examination pointed that the matter in respect of which there had been quarrel between the accused and Bhagauna had been settled through the mediation of Ziauddin. It had been settled through compromise in the Bindki court that Ram Dhani in .respect of the ancestral house would pay in all Rs. 500/- to Bhagauna, Devi Dayal and Ramadhin. There was no Panchayat or quarrel between Bhagauna and Ram Dhani appellant after the compromise in the case under section 107, CrPC Ziauddin, he conceded, had come to the village five days before the incident in connection with payment of money by Bhagauna but he did not know whether he could arrange payment of Rs. 500/- or not. Smt. Samrati PW 4 in her statement did not state that quarrel relating to ancestral land was the cause of the murder of Bhagauna, Ramadhin and Devi Dayal. 500/- or not. Smt. Samrati PW 4 in her statement did not state that quarrel relating to ancestral land was the cause of the murder of Bhagauna, Ramadhin and Devi Dayal. She stated that enmity with Ram Dhani was very old but did not indicate as to what had fanned the ill feelings to such an extent. Gopal PW 5 only stated about Vishwanath having assaulted him many years back. He did not have even vivid recollections of it for he could not tell the weapons with which he was assaulted. The Pradhan Ziauddin, he did state, had got the case under sections 107/116, CrPC compromised but denied that there had been any quarrel between him and his family members on the one side and Ram Dhani and his family members on the other either before the above proceedings or thereafter. He also did not point that there was any heated exchange of words with the appellants before the incident. No outsider, he admitted, was involved in the dispute. There had been no litigation admittedly between aim and his family members and those of Rajawa, Ram Sajiwan, Kripa, Mohan Lal and Ram Narain. They had also not appeared as witnesses against each other or done anything adverse to each other's interest. Further, it has not been shown as to how they could be presumed to be close to Ram Dhani or inferred to have helped him before the incident in respect of any matter or with regard to the quarrel in respect of the disputed house. 1 looked for but could not identify the common interest of Ram Dhani and his family members and Rajawa, Ram Sajiwan, Kripa, Mohan Lal and Ram Narain which could make them participate in the murderous assault on Bhagauna, Ram Dhani and Devi Dayal. The learned Additional Sessions Judge in his judgment has not dealt with at all as to what lead the appellants Rajua, Ram Narain, Kripa, Ram Sajeewan and Mohan Lal to form an unlawtul assembly with the other appellants. The fact that he acquitted all those appellants of the charge under section 302 read with section 149, IPC who did not actually cause injury indirectly shows that he had not found the appellants guided by common objective at all. It will serve no useful purpose further elaborating the fallacies in his judgment. The fact that he acquitted all those appellants of the charge under section 302 read with section 149, IPC who did not actually cause injury indirectly shows that he had not found the appellants guided by common objective at all. It will serve no useful purpose further elaborating the fallacies in his judgment. It appears that the pressure of the fact that he was deciding a four murder case unduly weighed with him The Additional sessions Judge who had chosen to discuss the question of sufficiency of motive first as his judgment shows should not have hesitated to record the hading on the facts of the case that Rajua, Ram Narain, Kripa, Ram Sajeewan and Mohan Lal had not been proved to have any motive at all to commit the crime in question. So far as Ram Dhani, Vishwanath, Ram Swarup, Badla and Bachchi Lal are concerned they too on the basis of the evidence on record cannot be held to have motive to commit the crime in question. Although Jagarnath PW 1 gave out that ten years prior to the incident in question Vishwanath, Badla, Ram Dhani and Ram Swarup had assaulted Devi Dayal and Bhagauna with spade and from that time there was enmity he could not deny that upto the date of the incident there had been no marpeet at all since then. Gopal PW 5 too stated about assault many years back but denied any quarrel with any of the accused either before or after the proceedings under section 107/116, CrPC. It may next be seen that the name of Ziauddin figures in the FIR as having been instrumental in bringing about the adjustment between the parties. The appellants Ram Adhin and his sons gave out that in accordance with the agreement Rs. 500/- had been paid to Bhagauna, Ramadhin and Devi Dayal. The prosecution witness Ghasita pointed that there was no quarrel between Ram Dhani and his three brothers after the compromise and he did not know whether Ziauddin arranged payment of Rs. 500/- to the brothers of Ram Dhani or not. The non-production of Ziauddin by the prosecution who in the FIR was credited with the knowledge of facts relating to the adjustment with regard to the disputed house certainly goes to show that if he had been examined, he would not have corroborated the prosecution stand. 500/- to the brothers of Ram Dhani or not. The non-production of Ziauddin by the prosecution who in the FIR was credited with the knowledge of facts relating to the adjustment with regard to the disputed house certainly goes to show that if he had been examined, he would not have corroborated the prosecution stand. The Additional Sessions Judge in his judgment seems to have accepted the contention of the counsel for the State that he was cited as a witness for the limited purpose of proving the inquest report as argued by the counsel for the appellants and that if the accused so wanted they could examine him in defence. The approach of the Additional Sessions Judge does not appear to be justified. Ziauddin on the question of motive was certainly an important witnesses for he could have thrown light whether inspite of the compromise there was any rancour left between the deceased and Ram Dhani or not. Besides even if he had been cited as a witness for proving the inquest report he should have been examined in fairness when Dr. Abdul Wahid PW 1 had given statement that the probabilities of Bhagauna and Ram Dhani having received fire-arm injuries while standing were greater and thereby had created a doubt about the real situation in which the dead body of Bhagauna and Ramadhin would have been at the time of their death. It would not at all be unjustified to infer that the brothers of Ram Dhani permitted him to proceed with the construction for he had done his part of the agreement. The gruesome murders of Bhagauna Ram Dhin and Devi Dayal, I am of the view, do not appear to have been committed because they had objected to the occupation of the ancestral house by Ram Dhani without giving them their due for it. If the feelings would have been so tense and strained there could not be adjustment which is an admitted fact. All that seems likely is that the complainant and the descendants of Ramadhin and Devi Dayal were not happy with the verdict of the Panchayat and because of earlier rudeness of Ram Dhani and his sons in indulging in marpeet, chose to implicate them. All that seems likely is that the complainant and the descendants of Ramadhin and Devi Dayal were not happy with the verdict of the Panchayat and because of earlier rudeness of Ram Dhani and his sons in indulging in marpeet, chose to implicate them. The aggrieved party being the complainant, he had a motive for false implication whereas Ramdhani and his sons having not been shown to have suffered, could not be held to have adequate motive to commit the crime in question. It may next be examined whether the facts of this case fit in with the general probabilities The first to be killed was pointed to be sixty five years old Bhagauna when Jagarnath and Gokul his sons. Ghasita a neighbour mimical to Rajwa, Mohan Lal, Ram Narain. Kripa and Ram Sajeevan and one more person Zalim, an in law of Jagarnath were there talking with each other. None of these persons sustained any injury. If the appellants would have caused the murder of Bhagauna they would not have spared the others pointed to be inside the room particularly Ghasita with whom Rajua, Mohan Lal, Ram Narain, Kripa and Ram Sajeevan were having criminal and civil litigation and Jagarnath and Gokul who could be greater obstacke to Ram Dhani and his sons. 11. The appellants according to the prosecution case after killing Bhagauna went to the disputed ancestral house which Ram Dhani set on fire. It is not the prosecution case that the brothers of Ram Dhani or their sons had made any construction on the disputed ancestral land. It looks to be highly improbable that Ram Dhani would set ablaze the house which he had constructed after obtaining it not without difficulty for falsely implicating the descendants of the deceased as allegedly stated by Ram Dhani on the said occasion. The Additional Sessions Judge has observed that the accused Ram Dhani was not being able to obtain exclusive possession and as such had a motive to commit the murder of Bhagauna, Ramadhin and Devi Dayal. I have already observed above that none of these brothers were shown to have done anything on the disputed land and that the appellants Ramadhin and his sons only were digging foundation and making the structure. I have already observed above that none of these brothers were shown to have done anything on the disputed land and that the appellants Ramadhin and his sons only were digging foundation and making the structure. Besides, if the appellants would really have gone to kill Bhagauna and Ramadhin, they were not likely to have digressed and burnt their own house which was likely to make their task further more difficult as residents of the neighbouring houses were certainly to feel aggrieved as it could spread over and consume their houses also, the prosecution has not led evidence that the appellant were aggrieved with Rameshwar PaDdit and Ram Khelawan too who had their houses to the north and south. The burning of the one time disputed house, I am of the view, could only be the work of a persons who were unknown to the villagers and had come to terrorise and throw challenge to the entire village without there being a chance of avenging their act. 12. The prosecution case further is that while Ramadhin had been setting the thatched roof and the Khaprail of his house on fire, the others proceeded to the house of Ramadhin. THEre, the appellants are alleged to have exhorted each other to kill him. The prosecution version looks funny that inspite of their plan already made, they had been exhoxting each other again and again. It also is unintelligable as to who were the persons to whom it had been said that Ram Dhani was setting his house on fire to falsely implicate. Gopal PW 5 gave out that when his father Ramadhin had been lying on a cot and he and his brother Ram Pal and his son Hira Lal were sleeping inside their rooms in the house, he was awakened as a result of the sound of firing. A woman of his house opened the door and thereafter Vishwanath, Ram Swarup and Badla one after the other fired at Ramadhin aged about seventy years. His lather's brother Devi Dayal arrived and feeling distressed on account of the death of his two brothers asked the accused also to kill him whereupon Mohan Lai joined Vishwanath, Ram Swarup and Badia in shouting at him and as a result thereof he fell to the south of the wall of Saddu and died. His lather's brother Devi Dayal arrived and feeling distressed on account of the death of his two brothers asked the accused also to kill him whereupon Mohan Lai joined Vishwanath, Ram Swarup and Badia in shouting at him and as a result thereof he fell to the south of the wall of Saddu and died. Gopal PW 5 stated that out of fear he remained inside or else the accused would have also shot him dead. Ha ?? the appellants been the shooters, they could manage to get Gopal PW 5 for being killed because he was the person with whom they were likely to be most aggrieved and they were expected to know where he could be found Gopal PW 5 pointed that when persons of the village had arrived even then he felt afraid and could not gather courage to go to the police station. It is difficult to believe that when he was so very afraid perhaps because he was a party to the case under section 307, CrPC, he would have followed the miscreants and gone up to the place outside the abadi where Kalua was shown to have been shooted. The counsel for the appellants urged that Kalua could not have been shot by the appellants as admittedly there was no enmity of any of the appellants with him. The stand of the appellants is that in fact there had been a dacoity at the houses of Bhagauna and Ramadhin and the dacoits in the course of the loot had shot dead Bhagauna and Ramadhin. According to them Gopal PW 5 had himself so reported about the incident. The appellants examined Abdul Ahmad Siddiqui DW 1 to substantiate that application had been given by Gopal in this regard to the Superintendent of Police and it had been marked to the Station Officer. Chandpur for report on 10-12-76. When Gopal was examined by the prosecution, it was put to him that he had submitted an application, to the Superintendent of Police which he denied. The appellants had also examined Siya Ram to get that application submitted by Gopal PW 5 traced out. Chandpur for report on 10-12-76. When Gopal was examined by the prosecution, it was put to him that he had submitted an application, to the Superintendent of Police which he denied. The appellants had also examined Siya Ram to get that application submitted by Gopal PW 5 traced out. The Additional Sessions Judge disbelieved the suggestion on behalf of the appellant about Gopal having moved the Superintendent of Poilce about a dacoity having been committed at his house for the reason that a constable had made entry with regard to it in the register which he thought to be unreliable, the approach of the Additional Sessions Judge is obviously erroneous because a constable muharrir simply because of his low rank would not be presumed to be an unworthy witness. The Additional Sessions Judge further did not find the dacoity story to be true as he was of the view that the dacoits fired indiscriminately and could not have picked up Bhagauna and Ramadhin from their Chaupals for being shot dead, when the prosecution evidence shows that there were persons other than Bhagauna and Ramadhin in the Chaupals. Dr Abdul Wahid PW 1 stated that there was greater likelihood of Bhagauna and Ramadhin having been shot dead while standing. The Additional Sessions Judge did not realize that Bhagauna and Ramadhin could as well have been brought and placed on their cot after having been shot. Further it is very unlikely that Jagarnath, Gokul, Ghasita anf Zalim had been present at the place where Bhagauna had been shot. Gopal and his brother Ram Pal or any other male member also do not appear to have been present. It is likely that Bhagauna and Ramadhin who were the only male members present in their houses had been shot at when they did not facilitate the dacoits in the loot. The prosecution witness Jagarnath in para 21 of his statement had pointed that his father and uncle were men of status and that the ladies of his house were possessed of ornaments and money and that silver ornaments were also there in the houses of Ramadhin and Devi Dayal. THEre is thus, no improbability in dacoits having raided their house. Smt. Sumrati PW 4 stated that Kora and Ram Autar lived in their village ten to twelve years back but they were no longer living in it. THEre is thus, no improbability in dacoits having raided their house. Smt. Sumrati PW 4 stated that Kora and Ram Autar lived in their village ten to twelve years back but they were no longer living in it. It was suggested to her that Ram Autar and Kora were dacoits and they were forced to leave the village on the complaint made by her family members. Jagarnath PW 2 stated that a scoundrel named Ram Autar used to live in the village three to four years before the incident. Ram Autar had gone to his maternal uncle He denied the suggestion that his brothers Gopal and Ram Pal had got Kora arrested and while they were taking him to the police station the people of village Gauri intervened and released him from their hold. He admitted that Banwari was the father of Kora and the name of the father of Ram Autar was Darbari. It appears that the dacoits who had come to loot had also gone to the house of the accused Ram Dhani and when they neither found him, nor valuables of his house came in their hands, they put his house on fire. It is quite likely that as he happened to be the brother of the deceased, he had also not been spared by them. The burning of the house of the accused Ram Dhani is more consistent with the defence story rather than the suggestion that the accused Ram Dhani burnt his own house to be able to prosecute the descendents of the deceased. 13. It now is to be examined whether three of the appellants could have carried burning 'Silhas' or 'lookas' so that they could identify Bhagauna and Ramadhin. The appellant Ram Dhani being the brother of these two persons must have been aware where they could be found and be hardly needed 'lookas' and 'Silhas' to be able to see them when the prosecution has also led evidence that there was 'dhibri' and 'lantern' respectively at the houses of Bhagauna and Ramadhin. Further if Ram Dhani was not bothered about the secrecy of the murder as appears from the tenor of the prosecution evidence, he would not have chosen the night time. Further if Ram Dhani was not bothered about the secrecy of the murder as appears from the tenor of the prosecution evidence, he would not have chosen the night time. IT was not to be expected that none of the village people excepting the family numbers of the deceased and Ghasita who had been considered as an unworthy witness by even the Additional Sessions Judge would have seen the incident. IT appears that those living in the vicinity of the houses of Ramadhin and Bhagauna and Devi Dayal had not been cited as witnesses for they would have denied the participation of the appellants in the crime in question and would have given out the true story about Bhagauna Ramadhin, Devi Dayal and Kalua having been shot dead by unknown dacoits. In this connection it further cannot be lost sight of that none of the 35 persons who were on the truck had been examined to prove that the appellants had participated in the crime in question although admittedly they belonged to the neighbouring villages and as such must have been familiar with the appellants. The non-production of the conductor, driver or of the persons who were on the truck accompanying Kalua shows that they were not agreeable to corroborate the prosecution case against the appellants. There is no such evidence on record where from it follows that the people of the village were afraid of the appellants. IT was thus, not to be expected that the people of the village or those on the truck for fear of the appellants were unable to gather courage to speak against them. Smt. Sumrati PW 4 tried to show that none else of the village besides Ghasita apart from the family members saw the incident. She also pointed that she did not have talk with any person of the village and her family members also did not talk with them. Her statement is highly improbable and appears to have been so given so that she was able to conceal the reality. The accused had examined Brij Lal to prove that there had been dacoity at the house of Bhagauna and Ramadhin and he had seen their scattered house hold effects. He also stated that Ranjit the brother of Kallu was with him. The accused had examined Brij Lal to prove that there had been dacoity at the house of Bhagauna and Ramadhin and he had seen their scattered house hold effects. He also stated that Ranjit the brother of Kallu was with him. Simply because he could not tell the name of the driver or conductor of the truck or its number, his statement was not liable to be rejected, when on the prosecution's own showing the truck laden with course sand and about thirty five persons over it had reached near the place of occurrence on the outskirts of the village. Brij Lal gave out that he was prepared to tell the names of all the persons who were on the truck along with Kalua. He stated to have had a talk with the wife of Gokul. He is a resident of village Arhana. There appears no improbability in Brij Lal DW 2 having remained at the scene of occurrence till the arrival of the police there. He denied any relationship with the appellant Vishwanath. His statement corroborates the testimony of Abdul Ahad who pointed that an application had been submitted by Gopal to the Superintendent of Police about dacoity at his house. The fact that the application purporting to be by Gopal had not been produced by the S O. concerned show that it really had been given by Gopal and if the same would have been forthcoming the entire prosecution story could have fallen like a pack of cards. 14. The first information report, then it is to be noted, had been ante-timed. From the statement of Dr. Abdul Wahid it is clear that he had not received its copy on 11-12-76. On the post mortem report there is a note that the first information report had been received by the Medical Officer at 2 p m. on 12-12-76. It appears that the first information report had not been sent to the Medical Officer promptly because the police was undecided about the final shape to be given to the case. The delay in recording the first information report casts a doubt that the prosecution has not come out with the true spontaneous version but has placed a report which was prepared after sufficient deliberation. The Additional Sessions Judge has in his judgment referred to the decision of the Supreme Court in Swaran Singh v. State of Punjab. The delay in recording the first information report casts a doubt that the prosecution has not come out with the true spontaneous version but has placed a report which was prepared after sufficient deliberation. The Additional Sessions Judge has in his judgment referred to the decision of the Supreme Court in Swaran Singh v. State of Punjab. AIR 1976 SC 2304 and State of U. P v Lalla Singh, 1978 SCC 142 , in arriving at the conclusion that Jagarnath PW 2 Sumrati PW 4 and Gopal PW 5 could be relied upon for holding the appellants guilty. The learned Additional Sessions Judge did not at all appreciate that the facts of this case are very different in nature and there are a large number of circumstances dealt with above which show that the prosecution evidence is infirm and highly improbable. In the instant case the independent witnesses available had not been examined. Ghasita who is inimical to Rajua Ram Narain, Kripa, Ram Sajeevan and Badla had roped them in this case and bargained with the complainant to be a witness on this condition. It is admitted to the prosecution that none of these persons bad caused any injury. I have already observed that they had no community of interest with the remaining appellants. The participation of all these appellants in the crime in question is highly improbable. The appeals, as such succeed. ORDER The appeals are allowed. The impugned judgment and order convicting the appellants Vishwanath, Ram Swarup, Badla and Mohan Lal under section 302 read with section 149 IPC and all the appellants under section 148 IPC are set aside. They are on bail. THEy need not surrender to their bail bonds which are discharged. Dt/- 18-7-91 Sd/- U. K. V. (J.) Palok Basu, J. -I would prefer to agree with the above judgment of my learned brother. Appeals allowed.