VIRENDRA SARAN, J. ( 1 ) THESE are two connected criminal appeals. Criminal Appeal No. 1159 of 1991 has been filed by Jugendra s/c. Bhudev against the ORDER and order dated 14. 6. 199 1 of Sri V. K. Agarwal, 1st Additional Sessions Judge, Aligarh in S. T. No. 277 of 1985 convicting and sentencing him u/s. 302/149 I. P. C. to death, u/s 307/149 I. P. C. to two years R. I. Criminal Reference No. 3 of 1991 also arises out Jugendra. The State of U. P. has filed Government acquittal of Bachchu Singh and Ranbir Singh sons of Vijaypal Singh and Munesh and Balbir sons of Mahendra Singh. Since the two appeals and reference arise out of the same ORDER. ( 2 ) I have perused the ORDER of brother Justice G. D. Dubey. With profound respect I beg to differ with the said ORDER and hence I am giving my own reasons and conclusions below. The incident in question is alleged to have taken place on 8. 5. 1984 at 1. 20 P. M. and a report gives a detailed expose to the prosecution case. According to the First Information Report, the incident had taken place in the Civil Court Campus, Aligarh in the verandah in front of there court of IV Additional Sessions Judge, Aligarh on the first floor of the court building. It is alleged that the three deceased Nepal, Yogendra and Ghanendra sons of Kuber Singh were facing trial in a murder case of P. S. Delhi gate, District Aligarh and on the fateful day they were escorted by the two constables to the court of IV Additional Sessions Judge, Aligarh. The presiding Officer was not present in the court and therefore, the two constable alongwith Nepal, Yogendra and Ghanendra sat down on a bench in the verandah outside the court room. Smt. Sumitra, mother of the victims and Manvendra Pal brother of the victims also arrived and were having a conversation with them. Smt. Sumitra disclosed that hakim had brought Munesh and Bachchu on his motor-cycle and that Panna, Jugendra and Gavendra had also come on cycles for doing pairvi Mean while one Shams had Ali also arrived and sat nearby. Soon, thereafter, six persons came there through the stair case. They were Hikim Singh, followed by Jugendra (applicant), Bachchu, Ranna, Munesh and Gavendra. Soon, thereafter, six persons came there through the stair case. They were Hikim Singh, followed by Jugendra (applicant), Bachchu, Ranna, Munesh and Gavendra. Hakim exhorted and pointed out that the three deceased were sitting there and they should fulfil the oath administered to them by Ballo. The five companions of Hakim Singh started firing from their country made pistols towards Nepal Yogendra and Ghanendra. The escorting Constables Narottam Lal and Bhikam Singh tried to intervene and arrest the six assailants. In the said course Constable Bhikam Singh also suffered injuries. Thereafter, the assailants started escaping. A chase was given and assailants Jugendra and Gavendra who were trying to escape on a cycle, were arrested Singh could manage to escape on his motor-cycle with other two assailants. The sixth assailant melted away somewhere in the melee. The F. I. R. goes on to state that Hakim Singh etc. were still being chased by the police. The two-miscreants who had been apprehended gave out their names as Jugendra sb Bhudev and Gavendra sb, Bhagwan Singh, residents of village Lohsara, P. S. Lodha, district Aligarh and also disclosed the names of the remaining assailants as Ranna, Munesh, Hakim Singh and Bachchu. In the meantime several members of the public and Sub-Inspector Raghunath Singh and Constables of P. S. Civil Lines arrived and searched the persons of Jugendra and Gavendra. A Counter-made pistol with mis-fired cartridge in its barrel was found concealed under the pants of Jugendra and two live cartridges were also recovered from the right pocket of his pant. From Gavendra two live cartridges were recovered. The recovered articles were sealed on the spot and a memo was prepared. Constable Bhikam Singh and Smt. Sumitra were despatched on a police vehicle for medical aid. When the informant Constable Narottam Singh, returned to the spot, i. e. , in the verandah, in front of the court of Additional Sessions Judge, the three injured were found in-a precarious condition and hence they were also despatched in a police vehicle for treatment. Constable Narottam Singh proceeded to P. S. Civil Lines in the company of other police personnels and lodged report as mentioned above at 3. Constable Narottam Singh proceeded to P. S. Civil Lines in the company of other police personnels and lodged report as mentioned above at 3. 10 p. m. It is stated in the F. I. R. by Head Constable Narottam Lal that he along with Jugendra and Gavendra as well as Sub Inspector Raghunath Singh and other police personnel had came to police station to lodge the report. It is noteworthy that in the F. I. R. the number of assailants who participated in the crime is given as six and Balvirs name has not been mentioned. The role of firing is assigned to five persons and the name of Balbir the seventh accused is alleged to have been disclosed by the arrested accused. ( 3 ) ON the lodging of the F. I. R. the case was registered as Crime No. 198 of 1984 U/s 307/1091 120b/147/148 I. P. C. and Crime Nos. 199 and 200 of 1984 u/s. 25 Arms Act at P. S. Civil Lines, Aligarh vide G. D. Entry No. 30. The same day information was received at P. S. Civil Lines, regarding the deaths and the case was altered to one u/s. 302 I. P. C. vide G. D. No. 31 of the same date. It is significant to note that the time of G. D. No. 31 is noted as 15 hours, that is 3 p. m. It was later on altered as 15. 40 hours by pen. The G. D. entry of registration of the case, that is G. D. No. 30 of 8. 5. 1984 of 3. 10 p. m. mentions that S. I. Raghunath Singh along with Constable Rakesh Kumar and Constable Raghubir Prasad were despatched for holding inquest on the dead bodies. It may be remembered that till then the case was one under Section 307 I. P. C. only. The prosecution has tried to retrieve itself out of this discrepancy by in vain. I shall advert to this aspect of the case at the appropriate stage in this ORDER. By the order of the Superintendent of Police, Aligarh the investigation was handed over to S. I. Raghuraj Singh Tyagi P. W. 8. The three injured Nepal, Yogendra and Dhanendra had died on their way to Hospital. After the necessary inquest the bodies were sent for post-mortem examination which was conducted by P. W. 7 Dr. S. R. P. Mishra. By the order of the Superintendent of Police, Aligarh the investigation was handed over to S. I. Raghuraj Singh Tyagi P. W. 8. The three injured Nepal, Yogendra and Dhanendra had died on their way to Hospital. After the necessary inquest the bodies were sent for post-mortem examination which was conducted by P. W. 7 Dr. S. R. P. Mishra. The Doctor had noted the following injuries on the person of deceased Ghanna alias Ghanendra Sing: Ante-mortem Injuries1. Incised wound (L) Parietal eminence, 1. 5 x 112 x bone deep. The parietal bone shows fracture communicated, margins clean out. 2. Incised wound (L) Traggus area 1/2 x 1/4 x temporal bone deep. 3. Multiple gun shot wound of entry (L) side parietal cut in an area of 4-1/2 x 4. No blackening or tattooing present. The shot entry measures 1/10 x 1/10. 4. Gun shot entry neck 2 in number (L) side 1/10 x 1/10. One shot clinging in wound and removed. 5. Incised wound (R) fore-arm flex or as pect near wrist i" x 1/2 x bone deep. 6. Incised wound (R) upper lateral thigh 1. 5 X i" (Entry) and communicating to through and through wound-exit wound (R) medial thigh 1. 25t1 x 1. The Doctor found the following injuries on the person of Nepal Singh: Ante-mortem Injuries1. Gun shot wound of entry on (R) side scalp (temporal parietal and frontal) in an area of 4" x 35" gun shot entries on scalp are 9 in number each measuring 1 cm. x 1 cm. No blackening or tattooing seen. The margins are rugged and inverted. The 4 gun shot wounds are bone deep. 5 shots recovered from brain tissue and two recovered from scalp. 2. Circular abrasion front of upper chest 1 cm. x 1 cm. The same Doctor has noted the following injuries on the person of deceased Yogendra Pal Singh :- Ante-mortem Injuries 1. Gun shot wound of entry (L) temporal parietal and car region. The shot wounds are is 1 cm x bone deep, margins are ragged, inverted without blackening or tattooing. 2 shots on parietal scalp, (1) shot on (L) ear pinna through and through. Entry on (L) Craok. Temporal bone is also fractured communicated the. . . (sic)? of the skin are loose and brain matter is badly torn along with memo (paper torn) ? 2. 2 shots on parietal scalp, (1) shot on (L) ear pinna through and through. Entry on (L) Craok. Temporal bone is also fractured communicated the. . . (sic)? of the skin are loose and brain matter is badly torn along with memo (paper torn) ? 2. Gun shot wound of exit on (R) parietal scalp wound eminence at 2 places each measuring "112 x 1/2" x bone deep. The (R) side parietal bone is badly fractured in pieces making a coalesed hole in an area of 1. 5 x 1. 5. All bone pieces are sticking with scalp. 3. Incised wound (L) Lower lateral chest 1. 5 cm. x 112 abdominal cavity deep but no injury to viscera blood clots are in cavity. 4. Incised wound on (R) side lower lateral chest 1. 5 liver deep. Constable Bhikarn Singh and Smt. Sumitra were medically examined by Dr. Rajiv Agarwal P. W. 7 and they were found to have the following injuries on their person: Injury of Constable Bhikam Singh 1. Multiple gun shot wound in an area of 26 cm. x 6 cm. on back of Rt. Palm measuring 2. 5 cm. x 2. 5 cm. x. 2 cm. x. 2 cm. U. O. Advised X-ray palm. Palpable shots are present. No blackening, tattooing and charring present. Injury of Smt. Sumitra Devi 1. L/w. 1 cm. x. 5 cm. on Rt. Temporal region 3 cm. above to outer end of Rt. Eye brow. ( 4 ) AFTER completion of the investigation, a charge sheet was submitted and the appellant Jugendra as also Bachchu Singh, Rambir Singh, Munesh and Balbir (respondents in the Government appeal) were charge-sheeted and were committed to the court of Sessions to stand their trial. Hakim Singh and Gavendra were also charge sheeted. Hakim Singh has died and Gavendra was not available for trial. He has absconded. ( 5 ) AT the trial the prosecution examined as many as ten witnesses. P. W. 1 Constable Bhikam Singh, P. W. 2 Manvendra Pal Singh, P. W. 3 Smt. Sumitra Devi are the eye-witnesses of the case. P. W. 6 Dr. Rajiv Agarwal medically examined two injured, namely, Smt. Sumitra and Constable Bhikam Singh. P. W. 7 Dr. S. R. P. Mishra had performed the autopsy. P. W. 4 Head Constable Jagdish Prasad Yadav had recorded the F. I. R. at the police station. P. W. 6 Dr. Rajiv Agarwal medically examined two injured, namely, Smt. Sumitra and Constable Bhikam Singh. P. W. 7 Dr. S. R. P. Mishra had performed the autopsy. P. W. 4 Head Constable Jagdish Prasad Yadav had recorded the F. I. R. at the police station. P. W. 5 Constable Chandra Kiran had taken the dead bodies for post-mortem examination. P. W. 9 Sub-Inspector Raghunath Singh had arrested appellant Jugendra and also conducted first part of the investigation. P. W. 8 Raghuraj Singh Tyagi is the Second Investigation Officer of the case. The last witness P. W. 10 Constable Salamat Khan, though Ii formal witness, had made revealations which have important bearing on the case. ( 6 ) ALL the accused pleaded not guilty and claimed to be tried. No evidence has been led in defence. The learned Sessions Judge after scrutinising the evidence rejected the testimony of P. W. 2 Manvendrapal Singh and P. W. 3 Smt. Sumitra Devi and held that they did not witness the incident. Regarding P. W. 1 Bhikam Singh the learned Judge found that his evidence of naming of the accused, was not reliable as he did not know them from before and he had been tutored. Hence he acquitted Bachchoo Singh, Munesh, Ranbir Singh and Balbir Singh. However, believing the prosecution case regarding arrest of appellant Jugendra the learned Sessions Judge convicted and sentenced appellant Jugendra Singh as mentioned earlier. ( 7 ) LEARNED Counsel on either side have been heard at length and material on record has been closely scrutinised. ( 8 ) WHILE appreciating the evidence in the present case one has to caution oneself to remain insular to the serious nature of the crime. The seriousness of the crime does not add to its proof. On the other hand it requires a more cautious approach lost innocent persons are convicted. ( 9 ) IN a criminal case the F. I. R. is of prime importance. It forms the foundation stone of the entire structure of the prosecution case. It is the first version disclosed to the authorities. So long as the F. I. R. is not written out the wax is in the hands of the Sub-Inspector who can mould it into any shape and add or subtract names of the accused as well as the witnesses of the case. It is the first version disclosed to the authorities. So long as the F. I. R. is not written out the wax is in the hands of the Sub-Inspector who can mould it into any shape and add or subtract names of the accused as well as the witnesses of the case. Unfortunately in the present case the lodging of the F. I. R. at the time and in the manner suggested by the prosecution is negatived by more than one circumstances emerging from the evidence and further it appears that the General Diary of the Police Station concerned has not been faithfully recorded. It appears that after the commission of the triple murder within the court precincts had brought the police mechinary to a halt and the police authorities started deliberations and only thereafter the F. I. R. came into existence and was ante-timed. ( 10 ) AS has been pointed out earlier, the F. I. R. is alleged to have been lodged at 3. 10 P. M. vide G. D. entry No. 30 dated 9. 5. 1984. The case has been initially registered U/ss. 307, 109, 120b, 147, 148 I. P. C. and Section 25 Arms Act. The case was altered to one U/s. 302 I. P. C. on the receipt of the information about the deaths of the deceased vide G. D. No. 31 of the same date. The copy of G. D. No. 31 initially bore the time as 15 hours, i. e. 3 P. M. The time was subsequently changed with ink as 3. 40 P. M. in order to adjust it with the time of G. D. No. 30. It appears that the General Diary was not being faithfully recorded and rough notes were made separately with the result that when entries were made in the General Diary the times could not be synchronised properly. In this very connection another important fact which has emerged from the evidence of P. W. 10 Constable Salamat Khan requires mention. According to his evidence, he along with Sub Inspector Gauri Shanker reached the spot at about 2 P. M. on learing about the firing in the Civil Courts. Sub-Inspector Gauri Shanker collected five empty cartridges, tikli and a cap of a police constable from the spot. He also collected blood stained and plain earth from the floor. Three recovery memos were separately prepared vide Exts. Sub-Inspector Gauri Shanker collected five empty cartridges, tikli and a cap of a police constable from the spot. He also collected blood stained and plain earth from the floor. Three recovery memos were separately prepared vide Exts. Ka-36, Ka-37 and Ka-39. In cross- examination Constable Salamat Khan stated that by 2. 10 P. M. they had reached the spot and the recovery memos had been completed by 3. 15 P. M. The distance of the police station from the spot is I k. m. It is noteworthy that Sub-Inspector Gauri Shanker had reached the spot of his own and made recovery memos. It is surprising to note that in the body of the recovery memos the crime number 198 and Sections of the case are mentioned. According to Constable Salamat Khan the entire writing work was over by 3. 15 P. M. The recovered articles were taken into possession separately, sealed and three recovery memos had to be prepared. It must have taken at least one hour or so in completing the formalities. Thus the first recovery memo would have been prepared between 2. 10 to 2. 30 P. M. , the second memo between 2. 30 to 2. 50 P. M. and the last between 2. 50 to 3. 15 P. M. The learned State Counsel could not explain as to how the crime number and the sections were mentioned in the body of the recovery memos at a time when neither the F. I. R. had been lodged nor the case crime had been registered. The argument that the crime numbers could have been put later on is fallacious because the crime number and Sections are not separately mentioned at the top of these memos but they are in the same stroke of pen and ink in the body of the memos. This circumstance also casts a serious doubt about the time when the F. I. R. actually came into existence. ( 11 ) IN order to know the sequence and the manner of writing the General Diary on 13. 5. 1992 we directed that the original General Diary of the police station Civil Lines be produced before the Court. On 19. 5. ( 11 ) IN order to know the sequence and the manner of writing the General Diary on 13. 5. 1992 we directed that the original General Diary of the police station Civil Lines be produced before the Court. On 19. 5. 1992 we were dismayed by the information given by the learned Government Advocate that the General Diary Book dated 8th and 9th May, 1984 had been weeded out and thus any cross checking was not possible. A ghastly murder had taken place in the Civil Courts Campus and one of the accused of the case had been sentenced to death and the appeal was pending in this Court. It was an unusual case of prime importance. There was no reason to destroy the original general diary and not to preserve it till the disposal of the case. The learned Counsel for the appellant argued that the Court is being deliberately kept out of the reach of the general diary. Be that as it may, the fact remains that the Court is prevented from checking up matters from the original documents. Another intriguing fact is as to now Sub Inspector Gauri Shanker started collecting evidence without being entrusted with the investigation of the case. The prosecution has withheld Sub Inspector Gauri Shanker from the witness- box. It is cenainly a lacuna in the prosecution case and casts serious doubt on the case. It has come in evidence that the Superintendent of Police, Aligarh had directed the investigation to be conducted by Sri Raghuraj Singh Tyagi, S. I. but S. I. Gauri Shanker not only started the investigation but also made mention of crime number and sections when no crime number had been registered at all. The matter does not rest here. It is noteworthy that when the F. I. R. was lodged it was only a case U/s. 307 I. P. C. but General Diary Entry No. 30 regarding registration of the case makes a mention that Sub Inspector Raghunath Singh along with other police personnel were being despatched for the purpose of preparation of inquest report. This is the place where the prosecution is caught unaware. This is the place where the prosecution is caught unaware. It appears that the time when the G. D. No. 30, regarding registration of the case, was being written out in the General Diary, the three deceased had already expired but the case was deliberately written U/s. 307 I. P. C. presumely to avoid the necessity of sending a special report The hard reality of the deaths was in the unconscious mind of P. W. 4 Head Constable Jagdish Prasad Yadav as well as the other police personnel and hence it found its expression in the G. D. No. 30 that Sub Inspector Raghunath Singh, Constable Rakesh Kumar and Constable Raghubir Prasad were being dispatched to hold the inquest. When cross-examined, P. W. 4 Head Constable Jagdish Prasad Yadav tried to riggle out the difficulty by offering a lame explanation that this entry was made because a memo had come vide G. D. Entry No. 20 that one Nirmal Kumar had died and for that purpose the dispatch of Sub Inspector Raghunath Singh etc. had been recorded. When we put the G. D entries, explanation offered by the witness and the other evidence under a magnifying glass the ingrains of falsehood come to surface G. D. entry No. 30 cannot be splitted into two pans, i. e. , first part for the present case and the second pan for another case. The entire narration of the G. D. No. 30 goes to show that it was entry of the registration of the present case and it had no concern with the any earlier case. P. W. 9 Sub-Inspector Raghunath Singh has, on oath, stated that he was returning from the Medical College after drawing up an inquest report when he came to know of the present case. The defence cross examined Sub Inspector Raghunath Singh regarding this fact. In para 6 of the cross-examination, Sub-Inspector Raghunath Singh stated that he does not remember whether he had been despatched to draw any inquest report (as stated by Head Constable ]agdish Prasad Yadav ). He further stated that he does not remember whether after the registration of the present case he filled up any other inquest report on that day. The explanation offered by P. W. 4 Head Constable Jagdish Prasad Yadav appears to be false. He further stated that he does not remember whether after the registration of the present case he filled up any other inquest report on that day. The explanation offered by P. W. 4 Head Constable Jagdish Prasad Yadav appears to be false. This again goes to show that the entries in the General Diary were not faithfully recorded and the General Diary was kept blank for ulterior purposes and for ante-timing the F. I. R. P. W. 2 Manvendra Pal Singh has stated in para 7 of his cross examination nation that as soon as his brothers received injuries they fell down dead. ( 12 ) ANOTHER circumstance, which casts a doubt on the F. I. R. , is that in the body of the F. I. R. , which was lodged by Constable Narottam Lal, parentage and residence of the assailants are not mentioned. But in the first page of the Check F. I. R. the parentage, caste and residence of the accused is mentioned. P. W. 4 Head Constable Jagdish Prasad Yadav was cross-examined on the point and he admitted that alongwith Narottam Lal none of the family members of the deceased had come to the Police station. He further admitted that he did not know parentage and resident of the accused. He took a some result that he enquired these facts from the accused Jugendra and Gavendra. He further admitted that neither Sub-Inspector Raghuraj Singh nor Veerpal Singh, who were present, had enquired about the parentage or the address. The explanation given by P. W. 4 Jagdish Prasad Yadav is not credible and is the result of the ingenuity of his mind. ( 13 ) A perusal of the inquest reports in the present case goes to show that in the beginning the police personnel were in a lurch who should be made the first informant of the case. The inquest reports go to show that the name of Sub Inspector Gauri Shanker is mentioned as the person who reported about the deaths. It appears that at a later stage it was thought proper that Constable Narottam Lal be made the first informant. Unfortunately Constable Narottam Lal died by the time the case came up for evidence and he could not be cross-examined and Sub Inspector Gauri Shanker has not been put into witness-box by the prosecution. It appears that at a later stage it was thought proper that Constable Narottam Lal be made the first informant. Unfortunately Constable Narottam Lal died by the time the case came up for evidence and he could not be cross-examined and Sub Inspector Gauri Shanker has not been put into witness-box by the prosecution. ( 14 ) SRI P. N. Mishra, learned counsel for the appellant argued that since the three deceased of the present case belonged to village Lahsara, within the jurisdiction of Police Station Lodha, information was conveyed to P. S. Lodha and Station Officer Gin of P. S. Lodha arrived with Smt. Sumitra etc. and then the F. I. R. came into being and the accused were falsely nominated on account of pre-existing enmity and suspicion. The evidence reveals the surprising arrival of the station Officer Gin of P. S. Lodha and P. W. 2. Manvendra Pal Singh has admitted in para 9 of his cross-examination that he knew Station Officer Gin and that in the evening Sri Gin, Station Officer Lodha and police force of P. S. Lodha had arrived near the dead bodies. The above revealation supports the argument of the learned counsel for the defence. ( 15 ) THE time and manner of the lodging of the F. I. R. having come under a serious doubt, the naming of the accused and entire structure of the prosecution case now stands on a murky foundation. The question of ante-timing of the F. LR. came up for consideration in several cases and it has been repeatedly held that if the F. I. R. is antetimed and brought. into existence later on the prosecution case suffers from serious infirmity. The Supreme Court in the case of Marudanal Augusti v. Suite of Keralal, observed: The High Court seems to have over-looked the fact that the entire fabric of the prosecution case would collapse if the F. I. R. is held to be fabricated or brought into existence long after the occurrence and any number of witnesses could be added without there being anything to check the authenticity of their evidence. T In the case of Badri Mallah v. State of Andhra Pradesh, the Supreme Court expressed the view that once the real time of lodging of the F. I. R. becomes doubtful we cannot be sure about naming of the accused because their names could have been deliberately introduced at a later point of time. The Supreme Court observed: These several circumstances incline us to doubt if Ex. P -1 was really given at 10 P. M. as the prosecution would have it. Weare of the opinion that at the earlier point of time the names of A-1 and A-2 did not figure as assailants of the deceased and that they were as such at a later stage and it was at that point of time that Ex. P-1 was brought into existence. Shri Rama Reddy,learned counsel for the State of Andhra Pradesh, fairly stated before us that if we were not satisfied about the genuineness of Ex. P-1 the convictions could not be sustained. In the case of Bishram and another v. State, a Division Bench of this Court considered this aspect and made the following observation: It is well settled that if the F. I. R. cannot be treated to be one got recorded by the informant though it may purport to be so no reliance can be placed on it and the prosecution case would stand shattered because of the possibility of the facts stated therein to be tented and TI ( 16 ) IN the present case also there exists serious doubt that the F. I. R. came into existence after P. W. 2 Manvendra Pal Singh and P. W. 3 Smt. Sumitra Devi were brought from the village by the police. The F. I. R. came into existence after deliberations with them. ( 17 ) I may now advert to the cases of accused Bachchu Singh, Ranvir Singh, Munesh and Balbie Singh, who have been acquitted by the Sessions Judge and are now respondents in the Government Appeal. The learned Sessions Judge has not relied on the evidence of P. W. 1 Constable Bhikam Singh for the purpose of convicting the above four accused the learned Sessions Judge has given cogent reasons for not relying upon the evidence of P. W. 1 Bhikam Singh. The learned Sessions Judge has not relied on the evidence of P. W. 1 Constable Bhikam Singh for the purpose of convicting the above four accused the learned Sessions Judge has given cogent reasons for not relying upon the evidence of P. W. 1 Bhikam Singh. The learned Sessions Judge was of the opinion that this witness did not know any of the accused from before and the accused were not put up for test identification by this witness. On a close scrutiny of the evidence of P. W. 1 Bhikam Singh I find myself in agreement with the findings recorded by the learned Sessions Judge. In his examination-in-chief P. W. 1 Bhikam Singh stated that there were Chhuries and kattas and the assailants used Chhuri also. He stated in his examination-in-chief that the Country made pistols (Kattas) held by the accused were fitted with Chhuris and that the accused took out those Chhuris and assaulted the victims. When the State Counsel questioned the witness as to who attacked with Chhuri the witness took out a slip of paper. The said chit of paper was taken away by the Court. The court noticed that the slip of paper contained the names and fathers names of the accused. The learned Sessions Judge destroyed the slip of paper by tearing it away. It would have been desirable for the learned Sessions Judge to have preserved the said slip to enable us to know the further contents thereof. The fact, however, remains that the findings of the learned Sessions Judge that the witness had been tutored and external aid had-been given to him to name the accused at the trial, appears to be sound. ( 18 ) THE second ground, on which the learned Sessions Judge preferred not to rely on the evidence of this witness, was that he did not answer certain questions. Further there was no mention of any assault being made by TChhurit in the F. I. R. The witness stated that he did not remember whether he made any mention of the use of Chhuri in his statement, made to the Investigating Officer, U/s. 161 Cr. P. C. The learned Sessions Judge further observed:"he has not answered the question put by the prosecution repeatedly as to how he came to know about the names of these six accused persons. P. C. The learned Sessions Judge further observed:"he has not answered the question put by the prosecution repeatedly as to how he came to know about the names of these six accused persons. This certainly shows that he is trying to hide something in his statement. In such a position, the 1. 0. was required to have put up the accused persons for identification by this Constable Bhikam Singh and then and then only, it could have been established from the statement of this witness that these six accused persons were actually involved in the alleged occurrence. T At another place the learned Sessions Judge has observed It will also come out from his statement that he has been tutored to name these accused persons as assailants. T The above reasons given by the learned Sessions Judge for discarding the evidence of naming by P. W. 1 Constable Bhikam Singh are sound in 1 A. M. also of the opinion that he did not know the names of the accused from before and he was trying to name the accused with the help of the slip of paper in his possession. In these circumstances, there should have been a test identification parade and in the absence of the same the naming by Constable Bhikam Singh cannot be relied upon. P. W. 1 Bhikam Singh appears to be tutored witness. ( 19 ) THE other eye-witnesses of the case are P. W. 2 Manvendrapal Singh and P. W. 3 Smt. Sumitra Devi. The learned Sessions Judge has not believed their presence at the scene of incidence. The learned Sessions Judge has given several persons for rejecting their testimony and I find myself in agreement with the same. ( 20 ) THE prosecution has tried to impress that Smt. Sumitra Devi had received injury in the incident and, therefore, her presence is established. In the F. I. R. which is a well detailed version of the entire incident, it is mentioned that the accused persons had fired several shots. There is no mention that any blunt weapon was used by the accused. The injury of Smt. Sumitra Devi is described as lacerated wound 1 x. 5 cm. on the Rt. temporal region. The doctor did not give any opinion regarding the weapon with which such an injury could had been caused. There is no mention that any blunt weapon was used by the accused. The injury of Smt. Sumitra Devi is described as lacerated wound 1 x. 5 cm. on the Rt. temporal region. The doctor did not give any opinion regarding the weapon with which such an injury could had been caused. The doctor also refrained from opining that the injury was the result of a. gun shot. There was no wound of exit and no pellets was found inside the wound. The dimension of the wound was also trivial and it does not appear to be a gun shot injury. P. W. 2 Manvendrapal Singh in his examination-in-chief stated that the injury of Smt. Sumitra was the result of a shot hitting her. This assertion is not borne out from the medical evidence and the prosecution was conscious of this infirmity and hence when Smt. Sumitra Devi P. W. 3 entered the witness-box a camouflage was tried to be created in her examination-in-chief. She stated that she did not know with what weapon she had received the injury. There was no question of Smt. Sumitra not knowing the weapon which caused her said Injury. ( 21 ) THE learned Counsel for the accused urged that the trivial injury of Smt. Sumitra, which was on the outer end of her right eye-brow could be the result of falling on the sight of her three deceased sons or might have been manufactured for the purpose of the case. It is surprising to note that the time of medical examination of Smt. Sumitra is not noted in her injury report. In order to ascertain the sequence of the medical examinations and their timings we directed the State Counsel to obtain the original injury report register. Once again we were disappointed when the learned State Counsel informed us that original injury report register has also been weeded out and hence checking up of the timing of the medical examination has become impossible. At this place it may be pointed out that the Doctor had advised X-ray examination of the injuries of Smt. Sumitra but no X-ray examination has been conducted to confirm the presence of any foreign body inside her body. How and when Smt. Sumitra received a solitary injury leave many question marks in my mind in the circumstances of the case. How and when Smt. Sumitra received a solitary injury leave many question marks in my mind in the circumstances of the case. Such a tiny injury could also have been self suffered from a friendly hand to make a show that the presence of the witness is fool-proof. The learned Counsel for the accused relied on the case of Ram Kishore and others v. State of U. P. , where in the Supreme Court and made the following observation regarding injuries of injured witness Hub Lal: The High Court repelled the defence suggestion by observing that T1looking to his pitiable condition after his son, nephew and cousin had been mercilessly butchered, it is not easily believable that he would have thought of manufacturing these injuries. The other suggestion that he received them in a fall is also not convincing. With respect in our opinion his pitiable condition would not deter a person like Hub Lal from manufacturing the injuries, if necessary,t ( 22 ) A meticulous examination of the evidence on the record creates doubt regarding the presence of the witnesses at the time of the incident. As mentioned earlier, in the F. I. B it is stated that the five accused had fired a. volley of shots from their Kattas and there is not even a whisper that any other weapon was used or that Kattas were used in a manner other than their normal use. The injuries noted in the post-mortem examination reports give an exposure to the fact that there were incised wounds on the body of the deceased Ghannu alias Ghanendra Singh as also on the body of deceased Yogendrapal Singh. The injury Nos. 1,2,5 and 6 of deceased Ghannu and injury Nos. 3 and 4 of deceased Yogendrapal Singh are incised wounds. P. W. 1 Bhikam Singh stated in his examination-in-chief that the Kattas (Country made pistols) possessed by the accused were fitted with Chhuries and that after taking out those TChhuris injuries were caused to the deceased. However, he had to admit in his cross-examination that even during investigation he did not disclose that Chhuriest had been at all used. Thus this part of his evidence is clearly an afterthought. P. W. 2 Manvendrapal Singh stated in his examination-in-chief that after firing the shots the accused started hitting the deceased with the butt end of their pistols. However, he had to admit in his cross-examination that even during investigation he did not disclose that Chhuriest had been at all used. Thus this part of his evidence is clearly an afterthought. P. W. 2 Manvendrapal Singh stated in his examination-in-chief that after firing the shots the accused started hitting the deceased with the butt end of their pistols. He further stated that on the butt ends some TChhuri sort of thing was fixed. When cross-examined the witness stated that the TChhuri was 2 long and after the assault the accused put their pistols in their pocket and escaped. The witness further stated that he had disclosed this assault by TChhuri to the Investigating Officer but when confronted with his statement U/s. 161 Cr. P. C. he could not assign any reason as to why the Investigating Officer did not note this fact in his statement. P. W. 3 Smt. Sumitra state in her examination-in-chief that the leaf (Patti) was fitted in the Kattas of the accused. However, she did not specifically state in examination-in-chief that accused assaulted the deceased from the side of that patti. A perusal of the injuries sustained by the deceased Ghannu alias Ghanendra Singh and Yogendra Pal Singh does not fit in with the use of small Chhuri or iron leaf. Injury No. 1 of deceased Ghannu is an incised wound which is bone deep on the parietal region and the parietal bone showed a communicated fracture with clean cut margins. His injury No. 2 was also temporal bone deep and injury No. 6 is also important because it was incised wound 1. 5 xl (Entry) and was communicating through and through the wound of exit, 1. 25 x 1" in size on right medial thigh. Similarly injury No. 3 of Yogendra Pal Singh was incised wound 1. 5 cm. x 1/2 abdominal cavity deep and injury No. 4 was an incised wound on the right lower lateral side of chest, 1. 5 x 1" x liver deep. These injuries could not be the result of striking a small Chhuri or an iron leaf. The injuries appear to be the result of some sharp weapon which was heavy and sufficiently long. A light weight patti (leaf) of a TChhurit could not have caused the fracture of parietal bone nor could it had penetrated so deep. These injuries could not be the result of striking a small Chhuri or an iron leaf. The injuries appear to be the result of some sharp weapon which was heavy and sufficiently long. A light weight patti (leaf) of a TChhurit could not have caused the fracture of parietal bone nor could it had penetrated so deep. Thus the evidence of these witnesses is in clear conflict with the medical evidence and their evidence becomes incredible. In this very connection it may be pointed out that it is the own case of prosecution that one of the assailants Jugendra was arrested and a pistol is alleged to have been recovered from him. No such Chhurit or iron leaf was found attached to the said pistol. ( 23 ) THE learned Sessions Judge has taken note of the fact that P. W. 2 Manvendrapal Singh and P. W. 3 Smt. Sumitra had contradicted each other on material points. Manvendrapal Singh P. W. 2 has stated that on the fateful day they had gone from his village to Aligarh on a bus. Smt. Sumitra P. W. 3 had contradicted Manvendrapal Singh on the point and she stated that she had gone to Aligarh on a Tonga. It was argued by the learned State Counsel that with the lapse of time the witnesses might have forgotten whether they had gone to Aligarh on a Tongat or in a bus. The argument does not hold ground because their going to Aligarh on the fateful day was associated with the incident of murders. One may forget such routine things due to lapse of time but when there is association of ideas in respect of one fact to some other fact one remembers things. Since their going to Aligarh on that day was associated with the murders they would have remembered the fact as to how they went to Aligarh. Moreover this was the last day for their going to Aligarh for the purpose of the case of the deceased and hence they would not forget as to how and by what conveyance they had reached Aligarh on that day. It has come in evidence that the village Lohsara, P. S. Lodha, where these two witnesses reside, is about 5 Miles from Aligarh. P. Ws. It has come in evidence that the village Lohsara, P. S. Lodha, where these two witnesses reside, is about 5 Miles from Aligarh. P. Ws. Manvendrapal Singh and Smt. Sumitra have stated that at the time of the incident they were residing in Village Bharatpur which is 5-1/2 Kost (about 8 Miles) from Aligarh and the main road is 1 Kos from their village. It has further come in evidence that Station Officer Lodha Sri Gin had also arrived where the dead bodies were kept. It is thus clear that the police authorities at Aligarh had informed P. S. Lodha and asked S. O. Gin to come. In all probability the presence of these witnesses was, also procured through him. ( 24 ) IT was pointed out that the blood stained clothes of Manvendrapal Singh and Smt. Sumitra Devi were taken into possession on 30. 5. 1984. The incident took place on 8. 5. 1984. If the clothes of these two witnesses were really stained with blood there is no reason why these clothes were not taken into possession for nearly 22 days. An experienced Police Officer, like Inspector Raghuraj Singh Tyagi would not make such an omission. The: matter does not rest here and it is unfortunate to note here that these blood stained clothes were never sent to the Chemical Examiner or to the Serologist. The learned State Counsel has submitted that the Investigating Officer has taken the whole matter casually. This submission is not at all acceptable because it was a case where three persons had lost their lives in Civil Court campus and no Police Officer would act in such a casual manner. The absence of the report of any chemical examiner leaves us in doubt regarding the origin of the blood, if any, on the clothes, alleged to have been taken in possession by the Investigating Officer. It appears that the initially there was no blood on the clothes of any of the witnesses but to give strength to the theory of the presence of these witnesses at the spot, the evidence of recovery of the blood stained clothes was concocted as an after thought. The prosecution also does not explain where these blood stained clothes remained for a period of 22 days. The Investigating Officer, while in the witness-box, did not Offer any explanation for this serious lapse on his part. The prosecution also does not explain where these blood stained clothes remained for a period of 22 days. The Investigating Officer, while in the witness-box, did not Offer any explanation for this serious lapse on his part. ( 25 ) SRI P. N. Mishra, learned Counsel argued that had P. W s. Manvendra Pal Singh and Sumitra been present at the scene of the occurrence they, and not Constable Narottam Lal would have lodged the report because their kith and kin had been murdered and they had the real grievance and further it were they who knew the accused by name from before the incident. This fact also suggest that they were not present and they did not witness the incident. Coupled with the other circumstances of the case there appears to be force in this submission. It was argued on behalf of the defence that the presence of these two witnesses was procured subsequently as their village is within 8 Miles from Aligarh and further it has been admitted even by the Investigating Officer that Station Officer Lodha had also reached Aligarh and remained with him till next morning. No wonder that these witnesses were brought by S. O. Lodha subsequently. ( 26 ) P. W. 2 Manvendrapal Singh was a young boy, aged about 17 years at the time of the incident and Smt. Sumitra Devi was an aged lady of 60 years of age at the time of incident. Their going on that day to do any pairvi does not appear to be probable. P. W. 2 Manvendra Pal Singh admitted in para 2 of his cross-examination that he had never seen the F. I. R. or any other paper of the case in which the deceased were accused nor he knew the name of the reporter of the said case. He admitted that his elder brother and some times his father used to do pairvi in the case. Smt. Sumitra P. W. 3 was cross-examined and in para 4 she stated that she could not tell the names of defence Counsel of her sons and further admitted that she had never seen said defence Counsel. The above admissions go to show that they were not doing pairvi in the case. P. W. 2 Manvendrapal Singh and P. W. 3 Smt. Sumitra even otherwise are witnesses of highly partisan character. The above admissions go to show that they were not doing pairvi in the case. P. W. 2 Manvendrapal Singh and P. W. 3 Smt. Sumitra even otherwise are witnesses of highly partisan character. They could name the accused due to pre-existing deep rooted enmity and at any rate add some innocent persons. It would not be safe to record a conviction in the circumstances of the case on their testimony. So far as Balbir Singh respondent in the Government appeal is concerted there is absolutely no evidence against him. The charge against him is of abetment. The learned Sessions Judge has framed the following charge: That you Balbir in the night of 7/8-51984 in village Lohsara. P. S. Lodha district Aligarh, inside your own house abeted the aforesaid accused for the commission of the offence of murder of Nepal; Dhanendra and you there by committed an offence punishable under Sections 302 and 307 I. P. C. The offence of abetment like any other offence requires proof. The prosecution has not examined any witness to depose that on the night intervening 7/8-5-1984 this accused Balbir Singh had abeted the other co-accused of the case to commit the crime. The thin thread in the prosecution evidence is found in the statement of P. W. 2 Manuvendrapal Singh and P. W. 3 Smt. Sumitra Devi. In his examination-in-chief Manuvendrapal Singh stated that Hakim, Bachchu, Munesh, Jugendra, Gavendra and Ranna arrived and committed the crime. Thereafter the State Counsel put a specific question asking him whether before started firing the accused had anything and then the witness replied that they had said that they should fulfill oath given by Balloo. P. W. 3 Smt Sumitra has stated in examination-in-chief that Hakim had, said that the oath given by Balbir should be fulfilled. This part of their evidence does not find corroboration from the statement of P. W. 1 Constable Bhikam Singh. The allegations regarding the word spoken by Hakim Singh at the time of committing the crime are false and there was also no necessity for uttering such word at the time of committing the crime. However, the utterance of such words though not acceptable to me, is not enough to establish the offence of abetment without there being positive evidence on the point. However, the utterance of such words though not acceptable to me, is not enough to establish the offence of abetment without there being positive evidence on the point. ( 27 ) IN view of the discussion made above I am of the opinion that the findings recorded by the learned Sessions Judge for acquitting Bachchu Singh, Ranvir Singh, Munesh and Balbir, who are respondents in the Government appeal, cannot be characterised as unreasonable or manifestly erroneous. It has been held by the Honble Supreme Court in Rajendra Prasad v. State of Bihar. When a trial court, with full view of the witnesses acquits an accused after disbelieving direct testimony, it will be essential for the High Court, in an appeal against acquittal, to clearly indicate firm and weightily grounds, from the record, for discarding the reasons of the trial court in order to be able to reach a contrary conclusion of guilt of the accused. The High Court should be able to point out in its ORDER that the trial courts reasons are palpably and unerringly shaky and its own reasons are demonstrably cogent As a salutary rule of appreciation of evidence, in an appeal against acquittal, it is not legally sufficient that it is just possible for the High Court to take a contrary view about the credibility of witnesses but it is absolutely imperative that the High Court convincingly finds it well-nigh impossible for the trial court to reject their testimony. This is the quintessence of the jurisprudential aspect of criminal justice. In the case of Marudanal Augusti (supra) the Supreme Court observed that if the view taken by the Sessions Judge was also a possible view of the evidence interference with the order of acquittal is not justified. ( 28 ) MY conclusion, therefore, is that the Government appeal, filed by the State, against order of acquittal of Bachchu, Panvir, Munesh and Balbir Singh deserves to be dismissed. ( 29 ) NOW adverting the case of Jugendra, appellant in Criminal Appeal No. 1159 of 1991 I am of the opinion that the prosecution has not been able to prove its case against him beyond the shadow of reasonable doubt. ( 29 ) NOW adverting the case of Jugendra, appellant in Criminal Appeal No. 1159 of 1991 I am of the opinion that the prosecution has not been able to prove its case against him beyond the shadow of reasonable doubt. While dealing with the case of co-accused Bachchu and others I have already held that the F. I. R. of the case appears to have been ante-timed and it did not come into existence at the time and in the manner suggested by the prosecution. That being so the very foundation of the prosecution case becomes shaky and doubtful. I have also held that in all probability P. W. 2 Manvendrapal Singh and P. W. 3 Sumitra were not even present and their presence was procured later on for the purpose of the case. The case against appellant Jugendra, however, is that after the incident a chase was given and he along with Gavendra was arrested on the road near the northern gate of the Civil Court compound. ( 30 ) THERE remains P. W. 1 Constable Bhikam Singh. However, the evidence of P. W. 1 Bhikam Singh does not carry us to a clinching conclusion against Jugendra appellant. It is conspicuous to note that P. W. 1 Constable Bhikam Singh has simply named six accused in the witness-box but he did not point out towards appellant Jugendra as one of the persons who committed the crime. He also does not say in so many words that Jugendra was the person who had been atrested after a chase. ( 31 ) WHILE considering the cases of Bachchu Singh and others, who have been acquitted by the learned Sessions ludge, it has been noticed that P. W. 1 Bhikam Singh is not a truthful witness and he has been tutored. The learned Sessions Judge, while considering his evidence has made the following observation:it will also come out from his statement that he has been tutored to name six accused persons as assailants. At the risk of repetition I will point out that the witness was trying to name the accused and has assigned them the roles with the aid of a paper chit in his possession which was taken from him and destroyed. This witness also did not answer material questions put to him. At the risk of repetition I will point out that the witness was trying to name the accused and has assigned them the roles with the aid of a paper chit in his possession which was taken from him and destroyed. This witness also did not answer material questions put to him. In such state of affairs his evidence regarding appellant Jugendra has to be accepted with a pinch of salt ( 32 ) THE topography of the place of incident, as revealed by the two site plans Exts. Ka-9 and Ka-lo, goes to show that the spot of the alleged arrest of Jugendra is not at all visible from the place where P. W. 1 Constable Bhikam Singh claims to have remained even after the crime. Ext. Ka-9 goes to show that there are six courtrooms in a row on the first floor facing west. The verandah where P. W. 1 Bhikam Singh was sitting is towards the west of the court rooms. The stair case is towards south of the building. The length of the building runs north-south. On the east and north of the building there are walls. Beyond the wall, towards further east there is open place and, thereafter, the main road is shown in site plan. Hence if one sits in the verandah towards west of the court rooms the view towards east, i. e. , towards the road be completely obstructed by the walls. It follows that after the accused were able to reach towards the east of the court building it would not have been possible for P. W. 1 Bhikam Singh who was admittedly sitting in the verandah towards west of the court room of the first floor. P. W. 2 Manvendrapal Singh and P. W. 3 Smt. Sumitra, whose presence on the spot I have not accepted, were also allegedly present at the same spot. It is conspicuous to note that none of the three eye-witnesses are witnesses of continuous chase and arrest of appellant Jugendra. None -of the public witnesses, who took park in the alleged chase and arrest, have been put in the witness-box. The only witness on the point of the arrest and chase is P. W. 9 Sub Inspector Raghunath Singh. It is conspicuous to note that none of the three eye-witnesses are witnesses of continuous chase and arrest of appellant Jugendra. None -of the public witnesses, who took park in the alleged chase and arrest, have been put in the witness-box. The only witness on the point of the arrest and chase is P. W. 9 Sub Inspector Raghunath Singh. I have given my anxious consideration to the evidence of P. W. 9 Sub Inspector Raghunath Singh and I am of the opinion that his evidence does not inspire confidence. His conduct shows that he has not arrested appellant Jugendra at the time and in the manner stated by him, that is when Jugendra and Gavendra were being chased immediately after committing the crime. P. W. 9 has stated that he was coming on a jeep alongwith police force when he noticed appellant and Jugendra being chased by police men and members of public. He goes on to state that he got his jeep stopped and arrested Jugendra and Gavendra and recovered a country made pistol and cartridges from Jugendra and he got the same sealed on the spot. According to the recovery memo this arrest was made at 2 p. m. He goes on to state that thereafter he returned to P. S. Civil Lines along with accused and recovered article. Sub Inspector Raghunath Singh did not care to go to the spot where murders had been committed. It is unimaginable that if S. I. Raghunath Singh had arrested the accused in the manner suggested by him he would not be curious enough to go to the spot and find out as to what had happened. S. I. Raghunath Singh poses as if he was behaving in an unconcerned and casual manner. It was a case where besides members of the public a police constable had also received injuries by gun shot. S. I. Raghunath Singh would certainly have gone to the spot after arresting the accused for giving aid to the police constable as also to the other victims. He admitted that he did not go to the place of the incident after preparing the recovery memo. The conduct of S. I. Raghunath Singh is pointer to the fact that Jugendra had not been arrested as stated by him but some time subsequently ubsequently when necessity of going to the spot no longer remained. He admitted that he did not go to the place of the incident after preparing the recovery memo. The conduct of S. I. Raghunath Singh is pointer to the fact that Jugendra had not been arrested as stated by him but some time subsequently ubsequently when necessity of going to the spot no longer remained. It is also important to mention here that in Ext. Ka-17 (recovery memo) there is not even a whisper of the circumstances in which appellant Jugendra was arrested. A close look to Ext. Ka-17 goes to show that to give strength to the prosecution case the last two lines were subsequently added. These lines relate to the taking into possession of a cycle. In cross-examination S. I. Raghunath Singh denied that the last lines of Ext. Ka-17 were added later on. However, these lines of Ext. Ka17 do appear to be a later addition. These lines have been squeezed between the rest of the writing and the signatures of the witnesses and these two lines have about one inch lesser margin on the left side of the paper. It is also noteworthy that there is not even a single public witness in the recovery memo. The prosecuting agency was conscious of this fact and hence in the examination-in-chief itself of S. I. Raghunath Singh it was mentioned that the public witnesses were not ready to sign the recovery memo. In the present case when the public witnesses were courageous enough to give a chase to the accused and their blood was still hot due to the revolting nature of the crime they would not have refused to sign the recovery memo. ( 33 ) IT is the prosecution case that all the accused were armed with Country made pistols and after the crime they were continuously chased. However, Gavendra, who was arrested, did not have any Country made pistol with him. It is also conspicuous to note that not even a drop of blood was found on the clothes of either Jugendra or Gavendra. It was not a case of firing from distance but the accused had come very close to their victims and assaulted with Chhuri and some blood was expected to have fallen on their clothes. ( 34 ) THE incident is said to have taken place at 1. 20 P. M. Jugendra and Gavendra were hurriedly escaping on a cycle. It was not a case of firing from distance but the accused had come very close to their victims and assaulted with Chhuri and some blood was expected to have fallen on their clothes. ( 34 ) THE incident is said to have taken place at 1. 20 P. M. Jugendra and Gavendra were hurriedly escaping on a cycle. It is not understandable that in nearly half an hour, i. e. by 2 P. M. they could only cover a distance up to the northern gate of the courts. Even if they have 15 minutes time at their disposal they would have covered 3-4 K. M. from the spot. Appellant Jugendra has stated in his statement that he was arrested from his village and brought to the P. S. Civil Lines by S. 0. Gin of P. S. Lodha. It has come in evidence that S. 0. Lodha Sri Girl had arrived in connection with this very case and he had arrived when the dead bodies were still there in the police Lines and he remained with the Investigating Officer till next day. There appears to be force in the plea of appellant Jugendra that he was picked up from his village by S. O. Girl and brought to P. S. Civil Lines. ( 35 ) THE three deceased of the present case also appear to be hardened criminals. P. W. 8 Raghuraj Singh, Investigating Officer has admitted that he had noted the criminal history of the three deceased in his case diary. He deposed that deceased Nepal was standing trial in two murder cases, one case of dacoity U/s. 3951397 I. P. C. , one case of attempted murder U/s. 307 I. P. C. and one case U/s. 25 Arms Act. Deceased Yogendra was involved in two murder cases U/s. 3021. P. C. , one case of attempted murder U/s. 3071. He deposed that deceased Nepal was standing trial in two murder cases, one case of dacoity U/s. 3951397 I. P. C. , one case of attempted murder U/s. 307 I. P. C. and one case U/s. 25 Arms Act. Deceased Yogendra was involved in two murder cases U/s. 3021. P. C. , one case of attempted murder U/s. 3071. P. C. and one case U/s. 25 Arms-Act and deceased Dhanendra was facing trial in two murder case, U/s. 302 I. P. C. , one case of attempted murder U/s. 307 I. P. C. and another case of dacoity U/s. 395/397 I. P. C. Thus it would appear that these deceased had no dearth of enemies who could eliminate them and the accused of the present case were not only enemies of the three deceased but since they were murdered on the date of hearing of the case, relating to the murder of Mahendra who was connected with the accused of the present case, the accused of the present case have been falsely implicated due to strong suspicion and enmity. ( 36 ) FOR the reasons discussed above, the prosecution has failed to prove its case against any of the accused and they all deserve to be acquitted. ( 37 ) BEFORE parting with I may observe that the learned Sessions Judge has committed error in awarding death penalty to appellant Jugendra. Age of Jugendra at the time of the incident was about 14 years. He has given his age as 20 years in his statement U/s. 313 Cr. P. C. which was recorded on 23. 10. 1990. In the statement of the accused the learned Sessions Judge has not noted any adverse observation regarding his age. The incident took place on 8. 5. 1984, i. e. about 6 years prior to the recording of his statement in the court. Appellant Jugendra was a child at the time when the offence was committed and he should have been dealt with under the beneficial provisions of the D. P. Children Act (1) of 1952. Since the appellant was a child at the time of the incident but he is now over 18 years of age, the court ought to have released him by not awarding any sentence. The view which I am taking finds support from the case of Jayendra v. State. Since the appellant was a child at the time of the incident but he is now over 18 years of age, the court ought to have released him by not awarding any sentence. The view which I am taking finds support from the case of Jayendra v. State. Section 17 of the V. P. Children Act prohibits awarding death penalty or even imprisonment for any term to children. Even otherwise death penalty was not the proper sentence in the present case specially when the three deceased were themselves hardened criminals, involved in several cases including murders. However, I will not well upon this aspect because I am of the opinion that the prosecution has not been able to prove its case against the accused. ( 38 ) IN the result, the conviction of appellant Jugendra and his sentence of death under section 302 read with Section 1491. P. C. is set aside. His conviction and the sentence of Imprisonment for life, under section 307 read with Section 149 I. P. C. is set aside and his conviction and the sentence of 2 years R. I. under Section 148 I. P. C. is also set aside. Criminal Reference No. 3 of 1991 for confirming the death sentence of appellant Jugendra is rejected. Government Appeal No. 1768 of 1991, against order of acquittal of Bachchu Singh, Ranbir Singh, Munesh and Balbir Singh is dismissed. Appellant Jugendra is in jail. He shall be released forthwith unless wanted in connection with any other case. Criminal reference for confirming death sentence rejected. Govt. appeal dismissed. .