JUDGMENT Mr. B.N. Singh, J. - This is an appeal against the judgment and order dated 16th March, 1979 passed by III Additional Sessions Judge, Unnao in S.T. No.634 of 1973-State v. Ramesh and Others-under Section 302 read with Section 34 IPC P.S. Fatehpur Chaurasi district Umiao. 2. The case of the prosecutions, as was given out in the evidence of Rain Kumar P.W. 1 and other witnesses, may briefly be stated as follows. 3. Ram Kumar P. W.1, who is the son of deceased Ram Bharosey, is a resident of village Takiya P.S. Fatehpur Chaurasi district Unnao. Deceased Ram Bharosey and Ram Kumar did not own any agricultural plot. Deceased Rain Bharosey was in the service of Gur Bux Singh and used to work as labourer in his field. Our Bux Singh was on inimical terms with his co-villagers Ram Prasad and Nanhey Singh Sarpanch Nanhey Singh and Ram Prasad accused are in the same party. Ram Prasad and Nanhey Singh did not like that Ram Bharosey was in the service of their enemy Gur Bux Singh. On many occasions, Ram Prasad tried to persuade deceased Rangy Bharosey to leave the services of Gur Bux Singh, but Ram Bharosey was not willing to oblige him. 4. In the western portion of the village is the Panchayat Gher and towards the north oft his Panchayat Gher is a pond. A Primary Pathsha la lies in between the pond and the Panchayat Gher. The door of the Panchayat Gher opens towards the cast in the court- yard. A public passage runs north-south towards the east of the Saban of the Panchayat Gher. The pond is at a distance of 50 paces from the Panchayat Gher. The house of Our Bux Singh is situated at a distance of 150 paces towards south from the Panchayat Gher. 5. The house of Shyam Manohar is situated at a distance of 30 paces from the Panchayat Gher towards east and its main door opens towards north. 7-8 years old Neem tree stands infront of the house of Shyam Manhor. 6. Accused Ramesh and Rain Prasad are real brothers and all the three accused belong to one party. 7. 5. The house of Shyam Manohar is situated at a distance of 30 paces from the Panchayat Gher towards east and its main door opens towards north. 7-8 years old Neem tree stands infront of the house of Shyam Manhor. 6. Accused Ramesh and Rain Prasad are real brothers and all the three accused belong to one party. 7. On 25.5.1978 it was at about 12 o'Clock in the noon when Ram Kumar P.W. 1 alongwith his cousin Ram Kishore P.W. 4 and Raja Ram was returning back from the pond with a buffalo-cart leaded with wet mud. The wet mud was required for the construction of the house of Rain Kishore P.W. 4. When these three persons reached near the Panchayat Gher, they saw that deceased Ram Bharosey was bringing one pair of bullocks and was on his way to the pond. When Ram Bharosey reached the Saban of Panchayat Gher, accused Ram Prasad, Ramesh and Ram Kumar came out of the Panchayat Gher. All the three accused were armed with country made pistols. Accused Ram Prasad told the deceased that he would be taught lesson, as he had not paid any attention to the demand made upon him for leaving the services of Gur Bux Singh. Upon this accused Ramesh and Ram Kumar fired upon Rain Bharosey. Ram Bharosey was hit. He fell down and died. Ram Kumar P.W. I and others had raised alarm upon which witnesses Mewa Lal P.W. 3 and Chandra Pal looked towards them and saw the occurrence. 8. The accused ran away when other villagers arrived upon the scene of occurrence. Blood had fallen down upon the place where Ram Bharosey had fallen down. 9. Ram Kumar P.W. 1 took about half an hour to overcome the shock of the murder of his father. He then left for the Police Station alongwith village Chaukidar. 10. In Police Station Fatehpur Ghaurasi an F.I.R. Ext. Ka-1 was lodged by Ram Kumar P.W. 1. Constable Gyan Singh P.W. 2, who was posted in Police Station Fatehpur Chaurasi in May, 1978, was present in the Police Station on 25.5.1978 and had scribed the F.I.R. Ext. Ka-1 at 4.05 p.m. on the dictation of Ram Kumar P.W. 1. The relevant G.D. entry Ext. Ka-2 regarding the commission of the crime was also made by him. 11. Constable Gyan Singh P.W. 2, who was posted in Police Station Fatehpur Chaurasi in May, 1978, was present in the Police Station on 25.5.1978 and had scribed the F.I.R. Ext. Ka-1 at 4.05 p.m. on the dictation of Ram Kumar P.W. 1. The relevant G.D. entry Ext. Ka-2 regarding the commission of the crime was also made by him. 11. S.I. Gulab Chandra Arya P.W. 6, who was posted in Police Station, Fatehpur Chaurasi in 1978, was present in the Police Station on 25.5.1978 when this case was registered and he was entrusted with the investigation of this case. He started investigation immediately after the case was registered. At the Police Station, the Investigating Officer recorded the statement of Ram Kumar and then left for the scene of occurrence. On reaching the scene of occurrence at 5.15 p.m., the Investigating Officer found the dead body of Ram Bharosey lying in the Sehan of Panchayat Gher. He also found blood upon the ground. He carved out the inquest processing upon the dead body and prepared Panchayatnama Ext. Ka-3 and the relevant papers. At 6.50 P.M. the dead body of Ram Bharosey was handed over to Constable Narender Singh and Village Chaukidar alongwith relevant papers with the direction to take the dead body to Unnao for post-mortem examination. 12. The samples of plain and blood stained earth were also taken by the Investigating Officer from the place of occurrence and were sealed in two separate tins under the recovery memo Ext.Ka-9. One used plastic cartridge Ext.3 was also recovered from the place of occurrence and was sealed under the recovery memo Ext.Ka-10. After inspecting the scene of occurrence, a site-plan was also prepared by the Investigating Officer. Witness Ram Kishore and others were also examined by the Investigating Officer. Witness Mewa Lal could not be examined on that day, as he was not available. On 27.5.1978, the Investigating Officer examined Mewa Lal. The accused surrendered in the Court on 2.6.1978. On 13.6.1978, the Investigating Officer submitted the charge-sheet Ext. Ka-2 in the case. 13. At the trial, the accused pleaded not guilty and claimed to be tried. 14. mall, the prosecution examined six witnesses i.e. Ram Kumar P.W. 1, Constable Gyan Singh P.W. 3, Mewa Lal P.W. 3, Ram Kishore P.W. 4, Dr. Hari Mohan Saxena P.W. 5 and S.I. Gulab Chandra Arya P.W. 6. Ka-2 in the case. 13. At the trial, the accused pleaded not guilty and claimed to be tried. 14. mall, the prosecution examined six witnesses i.e. Ram Kumar P.W. 1, Constable Gyan Singh P.W. 3, Mewa Lal P.W. 3, Ram Kishore P.W. 4, Dr. Hari Mohan Saxena P.W. 5 and S.I. Gulab Chandra Arya P.W. 6. The affidavits of Constable Narendera Singh, Constable Imam Bux, Head Constable Anirudh Prasad Pandey and Ward Boy Ambika were also filed by the prosecution. The accused did not lead any evidence in their defence. 15. The learned Sessions Judge accepted the evidence of the prosecution witnesses and convicted all the three accused i.e. Ramesh, Rain Prasad and Ram Kumar for the offence under Section 302 read with Section 34 IPC and sentenced each one of them to undergo fife imprisonment. 16. Aggrieved by the judgment and order of the Trial Court, Ram Prasad and others have come in appeal. We have heard the learned Counsel for the parties and have gone through the record of the case. 17. Before discussing the evidence of witnesses of fact, we may deal with the evidence, which is more or less of a formal nature and which has not been challenged before us. Constable Gyan Singh P.W. 2has proved the F.I.R. Ext.Ka-1 and G.D. entry Ext.Ka-2. Dr. Hari Mohan Saxena P.W. 6, who was posted as Medical Officer in District Hospital, Unnao in May, 1978, had conducted the post-mortem examination upon the dead body of Ram Bharosey on 26.5.1978 at 1.30 p.m. The result of the post-mortem examination was as under :- The deceased was aged 60 years, had been dead for about a day; was of average built and rigor mortis was present in all the limbs. The following ante mortem injuries were found upon the dead body: 1. Gun shot wounds, three are large " in diameter and two small, each 1 diameter in an area of 1" on the left side abdomen 3" from umbilious at 4'o Clock position with blackening and tatooing all round an area.of 1 Margins inverred. Wounds of entrance of gun shot. A lock of intestine was protruding out of large wounds (blackening and tatooing was a round the area i.e. 1 x 1"). 2. Lacerated wound I" x 'h" x bone (rib) front of chest, 5" from right nipple at 3' o Clock position. 3. Wounds of entrance of gun shot. A lock of intestine was protruding out of large wounds (blackening and tatooing was a round the area i.e. 1 x 1"). 2. Lacerated wound I" x 'h" x bone (rib) front of chest, 5" from right nipple at 3' o Clock position. 3. Gun shot wound 1" diameter on the back and middle of neck deep upto oval cavity. Below it, the 4th and 5th vertebra of the neck, mandible bones, face bones were fractured and teeth were broken. The spinal cord was lacerated. Inverted margin. Wound of entrance of gunshot with black thing and tatooing all rounds "soft tissue in oval cavity lacerated." 18. Dr. Hari Mohan Saxena was of the view that the death of Ram Bharosey was caused due to shock and haemorrhage resulting from ante mortem injuries. He was also of the view that injuries Nos. 1 and 3 could be caused by fire-anti while injury No. 2 could have been caused by friction of fa II upon some hard object. He was also of the view that injuries Nos. 1 and 3 were sufficient to cause death in the ordinary course of nature and that the death of Rain Bharosey could have occurred on 25.5.1978 at about 12 O'Clock in the noon. 19. Seven pellets, two plastic wads and one card wad were also recovered from the dead body and were sealed by Dr. Hari Mohan Saxena. 20. S.I. Gulab Chandra Saxena P.W. 6 has deposed about the various steps which were taken by him during the course of investigation. 21. Constable Narendra Singh, who was posted i i Police Station Fatehpur Chaurasi in May, 1978, has stated that on 25.5.1978 he had taken the dead body of Ram Bhnosey in a sealed cover from the place of occurrence alongwith relevant papers and had produced the same before Dr. Hari Mohan Saxena on 26.5.1978 for postmortem examination. He has insisted that no one was allowed to tamper with the dead body so long as it was in his possession. Constable Imam Bux, who was posted in Police Station Fatehpur Chaurasi in June, 1978, has stated that on 22.6.1978 he had taken five sealed bundles of this case from the Police Station and had deported in the Sadar Malkhana on the same day and that no one was allowed to tamper with these bundles. 22. Constable Imam Bux, who was posted in Police Station Fatehpur Chaurasi in June, 1978, has stated that on 22.6.1978 he had taken five sealed bundles of this case from the Police Station and had deported in the Sadar Malkhana on the same day and that no one was allowed to tamper with these bundles. 22. Head Constable Anirudh Prasad Pandey, who was posted in Police Station Fatehpur Chaurasi in June, 1978, has stated on oath that he had received the five sealed bundles of this case from Constable lmam Bux on 22.6.1978 and had deposited the same in the Malkhana. He insisted that these bundles were not tampered with as well in the Sadar Malkhana. Ward Boy Ambika, who was posted in district hospital, Unnao, in June, 1978, has stated that on 22.6.1978, three bundles of this case were given to Win by Constable Inam Bux and that the same were sent by him to the Chemical Examiner for examination on the same day. 23. We find no reason to disbelieve the evidence of these witnesses. The evidence of these witnesses does not in anyway directly connect the appellants with the crime in question. The evidence of these witnesses relates to their acts which were performed by them in the discharge of their official duties. 24. The case of the prosecution regarding the main occurrence rests upon the evidence of Rain Kumar P.W. 1, Mewa Lal P.W. 3 and Rain Kishore P.W. 4. The fact that Rain Bharosey diced o f gun shot wounds on 26.5.1978 in the Sahan of Panchavat Gher is not disputed. The case of the appellants was that they were not responsible for the murder of Ram Bharosey. It was also suggested that Rain Bharosey was murdered some time earlier in the day. We have already detailed the version of Rain Kumar P.W. I in the statement of the case and the same need not be repeated here. Both Mewa Lal P.W. 3 and Rain Kishore P.W. 4 in their examination-in-chief have corroborated the evidence of Rain Kumar P.W. I and have assigned the role of firing the fatal shots upon RA in Bharosey to Ramesh and Rain Kumar. Having gone through their evidence, we are of the view that it will not be safe to place implicit reliance upon their evidence for the reasons which we shall presently state. 25. Having gone through their evidence, we are of the view that it will not be safe to place implicit reliance upon their evidence for the reasons which we shall presently state. 25. In this case, the prosecution has failed to prove the motive which would have motivated these appellants to commit the murder of Rain Bharosey. No doubt, the prosecution has come out with the motive that Ram Prasad had tried to persuade the deceased Rani Bharosey to leave the service of Gur Bux Singh, but there is nothing to suggest as to why Ram Prasad or for that matter all these three appellants would have had a desire to ask the deceased to leave the service of Gur Bux Singh. Admittedly, there are two parties in the village in question. One party is headed by Our Bux Singh in whose service the deceased was at the time of his death and the second party is lead by Nanhey Singh and Ram Prasad. On the own admission of Ram Kumar P.W. 1, the deceased was only Halwaha of Gur Bux Singh. It is not the case of the prosecution that Ram Bharosey was the right hand man of main helper of Gur Bux Singh. It is also not the case of the prosecution that Ram Bharosey was looking after the litigation in which Gur Bux Singh was involved. There is also no evidence on the record to show that Ram Bharosey was involved in any criminal case which was pending between the two factions in the village. It is also admitted to Ram Kumar P.W. I in pare 8 of the cross-examination that neither he nor his father has any personal enmity with anyone of these three accused. In this view of the matter, it was highly unlikely that the appellants would commit the murder of Ram Bharosey in broad day light. The motive with which the prosecution has cone out is absolutely insufficient. No doubt, motive loses importance when there are eye-witnesses of the occurrence, but in that case the evidence of the eye-witnesses must be above board and should be classed as absolutely reliable. 26. In the present case, all the three witnesses of fact are interested in each other and are in fact members of the faction led by Cur Bux Singh while the appellants are members of the rival faction. 26. In the present case, all the three witnesses of fact are interested in each other and are in fact members of the faction led by Cur Bux Singh while the appellants are members of the rival faction. Ram Kumar P.W. 1 is the son of the deceased while Ram Kishore P.W. 4 is the first cousin of Ram Kumar P.W. 1. Besides these witnesses, two more witnesses of fact i.e. Chandra Pal and Raja Ram were named in the F.I.R. as eyewitnesses of fact. Now Raja Ram is the real brother of Rain Kishore P.W. 4 and Mewa Lal has admitted that he was residing with his maternal uncle and after the conviction of his maternal uncle in a criminal case, he was brought up by Our Bux Singh. Thus, all these eyewitnesses of fact who are alleged to have been present upon the scene of occurrence belong to the party of Our Bux Singh. It is obvious that these witnesses are interested witnesses. The evidence of interested witnesses cannot be rejected for the simple reason that they are interested witnesses, but even the presence of these witnesses upon the scene of occurrence was simply by chance. If Ram Kumar P.W.1 is to be believed, he, Ram Kishore and Raja Ram were returning back from the pond in the buffalo-cart. It was just by chance that Ram Bharosey deceased happened to come in the Sahan of Panchayat Gher at that time. Even if there had been a difference of five minutes either way, these persons Ram Kishore, Raja Ram and Ram Kumar would not have been there. The matter does not rest here. If Ram Kumar P.W. 1 and Ram Kishore P.W. 4 are to be believed, they were coming back after taking mud from the pond in the buffalo-cart. Now the place from where the mud was dug out by these persons and the buffalo-cart in which they had carted the mud where of importance. Rain Kumar P.W. 1 has claimed that the place from where the mud was taken out by him and the buffalo-cart in which it was carted was shown to the Investigating Officer. Now the place from where the mud was dug out by these persons and the buffalo-cart in which they had carted the mud where of importance. Rain Kumar P.W. 1 has claimed that the place from where the mud was taken out by him and the buffalo-cart in which it was carted was shown to the Investigating Officer. The Investigating Officer S.I. Gulab Chandra Arya, P.W. 6 has stated that he had neither seen the place in the pond from where the mud was taken out by the witnesses of fact nor he had seen the buffalo-cart in which the mud was carted away. Thus, the corroborated piece of evidence which would have been available if the Investigating Officer had examined the spot from where the mud was taken out and the buffalo-cart in which the mud was carted was not available in the case. May be it was due to inefficiency of the Investigating Officer, but the fact remains that the corroborative piece of evidence was lacking in this case and this fact lends support to the appellants' Counsel argument that the whole story regarding carting of mud in the buffalo-cart was false. Thus, Ram Kumar P. W.1, Ram Kishore P.W. 4 and Raja Ram are absolutely change witnesses, as on their own admission their houses are at a considerable distance from the scene of occurrence. 27. Furthermore, the case of the prosecution is that the appellants were lying in wait for Ra m Bharosey in the Panchayat Gher. There is no evidence on the record to show as to how could the appellants anticipate that at a particular hour Ram Bhaimsey would come with his bullocks so that he may take them to the pond. There is nothing on the record to suggest that it was the routine of the deceased to take his bullocks to the pond at the particular hour. Under these circumstances, the appellants could not have anticipated the arrival of Ram Bharosey at that time. 28. So far as the evidence of Mewa L AI P.W. 3 is concerned, we may observe that his evidence has left much to be desired and cannot be accepted. Under these circumstances, the appellants could not have anticipated the arrival of Ram Bharosey at that time. 28. So far as the evidence of Mewa L AI P.W. 3 is concerned, we may observe that his evidence has left much to be desired and cannot be accepted. In his examination-in-chief, Mewa Lal P.W. 3 has categorically stated that both Ramesh and Ram Kumar had fired from their pistols upon Ram Bharosey as a result of which Ram Bharosey was hit and had fallen down upon the ground, but in his cross-examination (in para 5) Mewa Lal P.W. 3 has gone back on his earlier version and has insisted that he could not see as to which one of the appellants had fired upon Ram Bharosey. He has maintained that he had only looked towards Ram Bharosey after the shots were fired and at that time he had seen all these three appellants with pistols. Thus, no reliance can be placed upon his evidence, as he has taken two conflicting stands in his evidence. 29. Ram Kumar P. W.1 has admitted that he was the only son of his father and that the marriage of his maternal uncle's daughter was fixed at Chhattarpur on the proceeding day. He admits that Chhattarpur is at a distance of 15 miles from his village. He has claimed that his mother had died, when he was about 7-8 years old and neither he nor his father nor his wife had gone to attend the marriage of his cousin sister at Chhattarpur. However, he admits that invitation for the marriage had come. But Ram Kishore P.W. 4 admits in his cross-examination that Ram Kumar P.W. 1 had gone to attend the marriage of his maternal cousin. He goes on to state that Ram Kumar P.W.1 had returned on the day of the occurrence, but he subsequently changed his stand and stated that Ram Kumar P. W.1 had returned 3 or4 days prior to the day of prior to the day of occurrence. When Ram Kumar P.W. 1 had gone to Chhattarpur to attend the marriage of his maternal cousin, mall probability he was called from Chhattarpur on the day of the occurrence after Ram Bharosey was killed by same one in the early hour of the day. 30. When Ram Kumar P.W. 1 had gone to Chhattarpur to attend the marriage of his maternal cousin, mall probability he was called from Chhattarpur on the day of the occurrence after Ram Bharosey was killed by same one in the early hour of the day. 30. Another circumstance to note in this case is that although there were houses of other persons in the vicinity of the scene of occurrence, no one from these houses has come forward to support the prosecution version of the occurrence. 31. Another circumstance to note in this case is that the places of injuries upon the dead body of Ram Bharosey show that the witnesses had not seen the occurrence. According to all the three witnesses of fact, the accused had fired almost simultaneously from their pistols. It is not the case of the prosecution that there was a small time-lag in the firing of the pistol shots, but according to the post mortem report one of the injuries is on the left side of the abdomen 3" from the umbilicus while the other injury is on the back and middle of neck deep upto oval cavity. If the two shots were fired simultaneously by the appellants while they were standing near each other, these two injuries could not have been caused. 32. In view of our discussions, we conclude that it will not be safe to place much reliance upon the evidence of these witnesses of fact. In our opinion, the prosecution has failed to prove its case against the appellants beyond reasonable doubt. Consequently, the appellants are entitled to benefit of doubt. 33. The appeal is allowed. The judgment and order of the Trial Court dated 16th March, 1979 are set aside. The appellants are on bail. They need not surrender. Their bail bonds are cancelled and the sureties are discharged.