VIRENDRA SARAN, J. ( 1 ) APPELLANT Dinesh has filed the present appeal against the judgment and order dated 4/10/1979 of Sri. S. D. N. Singh, Sessions Judge, Mirzapur. The learned Sessions Judge has convicted the appellant D/s. 302, I. P. C. to Imprisonment for Life. The learned Sessions Judge by the same order has acquitted co-accused Rajmani Dubey, Daya Shanker and Shashi Kant. ( 2 ) THE prosecution case is that all the accused belonged to Village Mallepur, P. S. Chilh, District Mirzapur. The deceased also belonged to the same village and the accused are alleged to be collaterals of the deceased. The incident took place on 13/4/1978 at 8. 30 P. M. It is alleged that the deceased was sitting in front of his Baithak by the side of his well on a cot talking to his father Ramji who was also sitting on the same cot. Suraj Prasad, uncle of the deceased was sitting on a separate cot nearby. Two other persons, namely, Han Ram Yadav and Paras Ram were also present there. All of a sudden the four accused, namely, Dinesh (appellant), Rajmani Dubey, Daya Shanker and Shashi Kant appeared. Dinesh was armed with a country made pistol while the rest possessed lathis. Rajmani Dubey exhorted that deceased Janmejaya be not allowed to escape and be done to death. Simultaneously he as well as Daya Shanker and Shashi Kant showered lathi blows on the deceased. The deceased got up from his cot but soon he was shot by appellant Dinesh with his country made pistol. The accused escaped. Deceased Janmejaya had fallen down unconscious. ( 3 ) RAMJI Dubey - father of the deceased carried his injured son Janmejaya on an Ekka to District Hospital, Mirzapur. At the District Hospital Janmejaya was declared dead. Ramji Dubey got the First Information Report written out by one Ganesh Tiwari and lodged the same at P. S. Kotwali, Mirzapur at 1 A. M. on 14/4/1978. On the lodging of the First Information Report, chick report Ext. Ka-9 was drawn up and a case at Serial No. 3 of the G. D. Ext. Ka-10 was entered. Since the occurrence related to village Mallepur which was within the jurisdiction of P. S. Chilh, the papers were sent to P. S. Chilh. On the lodging of the First Information Report, chick report Ext. Ka-9 was drawn up and a case at Serial No. 3 of the G. D. Ext. Ka-10 was entered. Since the occurrence related to village Mallepur which was within the jurisdiction of P. S. Chilh, the papers were sent to P. S. Chilh. At- P. S. Chilh the case was registered at 5 A. M. and the investigation was taken up by Sub-Inspector Raj Nath Singh, Later part of the investigation was conducted by P. W. 7 Shyam Surat Mishra. After completing the investigation charge sheet was submitted. ( 4 ) PRIOR to the lodging of the First Information Report by Ramji Dubey at 1 A. M. on 14/4/1978 a slip regarding death of the deceased Janmejaya was brought by ward-boy Ram Lal at P. S. Kotwali and this information was entered in the G. D. at 00. 30 A. M. The inquest on the dead body was conducted by P. W. 4 Ram Chant Tripathi and the dead bodyt was sent for post-mortem examination. ( 5 ) P. W. 9 Dr. S. R. Bhattacharya conducted post-mortem examination and he noted the following te-mortem injuries on the persons of the deceased:1. G. S. wound 1 cm. x 1 cm. x lung cavity, directed from upwards to downwards and inwards, oval entrance, on the chest rt. Side 13 cm. below rt. nipple, no blackening and tattooing present. 2. G. S. wound 1/2 cm. x 112 cm. x 1 cm. on the chest at the middle. 3 cm. left to Inj. No. 1 directed from above downwards and inwards, entrance, no blackening and tattooing present. 3. G. S. wound 1 cm. x 1 cm. x cavity on the chest rt. side 5 cm. medial to Inj. No. 1 directed front to backward and downward entrance, no blackening and tattooing present. 4. G. S. wound 2 cm. x 1 cm. x 1 cm. on the chest left side 5 cm. below left nipple oval entrance. No blackening and tattooing present. Direction from rt. to left wards. 5. G. S. wound 2 cm. x 1 cm. x 1 cm. on the chest left side 6 cm. below Inj. No. 4 directed from front to backwards. No blackening and tattooing present entrance. 6. Abrasion 4 cm. x 112 cm. on the chest left side below and outer to left nipple. 7. Abrasion 7-112 cm. to left wards. 5. G. S. wound 2 cm. x 1 cm. x 1 cm. on the chest left side 6 cm. below Inj. No. 4 directed from front to backwards. No blackening and tattooing present entrance. 6. Abrasion 4 cm. x 112 cm. on the chest left side below and outer to left nipple. 7. Abrasion 7-112 cm. x 7 cm. on the part surface of left forearm. 8. Abrasion 1 cm. x 1 cm. on the part surface of left elbow. 9. Abrasion 3 cm. x 2 cm. on the outer side of left at high upper parts. 10. Abrasion 3 cm. x 2-1/2 cm. the chest lateral side 13 cm. below left axilla. ( 6 ) ON internal examination the Doctor found that the stomach contained undigested food present. Small intestines contained gases and large intestines were full of faceal matter. According to the Doctor the cause of death was shock and haemorrhage due to injuries. ( 7 ) THE case was committed to the Court of Sessions where all the accused pleaded not guilty and claimed to be tried. ( 8 ) IN support of its case the prosecution examined as many as ten witnesses. of these witnesses P. W. 1 Ramji Dubey, P. W. 2 Suraj Prasad and P. W. 6 Parasram Dubey are eye witnesses. P. W. 9 Dr. S. R. Bhattacharya is the doctor who conducted autopsy. P. W. 8 Head Constable Rameshwar Prasad was constable clerk of P. S. Kotwali, Mirzapur. He wrote out the chick F. I. R. P. W. 10 is Head constable Gomti Prasad who received the First Information Report at P. S. Chilh and registered the case at P. S. Chilh. P. W. 4 S. I. Ram Chant Tripathi conducted the inquest on the dead body. P. W. 5 S. I. Raj Nath Singh and P. W. 7 Shyam Surat Mishra are the two Investigating Officers of the case. At the close of the prosecution case the accused were examined u/s. 313 Cr. P. C. and they again denied having participated in the crime. The learned Sessions Judge has convicted the appellant and acquitted Rajmani Dubey, Daya Shanker and Shashi Kant, as mentioned earlier. ( 9 ) WE have heard learned counsel for the appellant, learned State Counsel and Sri Devendra Dahama, learned counsel for the complainant at length. P. C. and they again denied having participated in the crime. The learned Sessions Judge has convicted the appellant and acquitted Rajmani Dubey, Daya Shanker and Shashi Kant, as mentioned earlier. ( 9 ) WE have heard learned counsel for the appellant, learned State Counsel and Sri Devendra Dahama, learned counsel for the complainant at length. ( 10 ) ON the point of motive it is stated in the F. I. R. that there was old enmity between the informant Ramji on one side and the acquitted accused Rajmani Dubey on the other. In the witnesses box P. W. 1 Ramji Dubey has deposed that about 8 or 9 months prior to the murder there was a jhagra between Janmejaya, Gangejaya, Vinod and Shashi Kant accused while a Kabbadi Match was going on and Shashi Kant accused had fired and thereupon the deceased Janmejaya and Gangejaya (Brother of the deceased) etc. had assaulted Shashi Kant accused and Kripa Shanker accused had lodged an F. I. R. u/s. 307, I. P. C. In that connection deceased Janmejaya, his brother Gangejaya and Danger, Dinesh (S/o. Bali Ram) and Karkar were arrested and sent to jail. In the F. I. R. lodged by Kripa Shanker appellant Dinesh S/c. Dashrath was cited as a witness. According to P. W. 1 Ramji Dubey, Dinesh was falsely introduced as a witness in the said F. I. R. It is noteworthy that there was no other enmity between the accused and the deceased. P. W. 1 Ramji Dubey has deposed in para 3 of his evidence that even though the accused are his distant centrals there was no property dispute amongst them. It is again noteworthy that so far as appellant Dinesh S/o Dashrath is concerned he was not directly involved in the Jhagra that took place 8 or 9 months prior to the incident. The prosecution allegation is that the appellant had been cited as a prosecution witness in the F. I. R. lodged by Kripa Shanker u/s. 307, I. P. C. against Janmajaya, Gangejay, Dinesh S/o Balram, Danger and Karkar. Learned counsel or the appellant has vehemently argued that the appellant has been falsely implicated to strike a barter. The prosecution allegation is that the appellant had been cited as a prosecution witness in the F. I. R. lodged by Kripa Shanker u/s. 307, I. P. C. against Janmajaya, Gangejay, Dinesh S/o Balram, Danger and Karkar. Learned counsel or the appellant has vehemently argued that the appellant has been falsely implicated to strike a barter. Our attention has been drawn to the suggestion put by the learned public prosecutor to P. W. 6 Parasram that P. W. 6 Paras ram was not supporting the prosecution case because of a compromise that Kripa Shanker would not prosecute his nephews Karkar and Danger in return of his not supporting the prosecution case. At any rate, in our opinion, there did not exist any strong motive for appellant Dinesh to commit murder of Janmejaya. On the other hand since the appellant was cited as a prosecution witness against the sons and nephews of the informant he could have been falsely implicated by the informant. ( 11 ) WE now advert to the ocular evidence. The prosecution has examined P. W. 1 Ramji Dubey, p. W. 2 Suraj Prasad (elder brother of Ramji Dubey) and P. W. 6 Parushram, P. W. Parushram had not supported the prosecution case and stated that he did not witness the incident. We are thust left with the testimony of Ramji Dubey and Suraj prasad. ( 12 ) THE testimony of P. W. 1 Ramji Dubey and P. W. 2 Suraj is in conflict with the medical evidence. It is specifically mentioned by both these witnesses that after accused Rajmani exhorted, an assault was made with lathi by accused Rajmani, Kripa Shanker, and Shashi. Kant. A perusal of the post-mortem report goes to show that there is no typical lathi injury on the person of the deceased. The first five injuries on the persons of the deceased are noted as fire arm injuries and the rest five are abrasions. P. W. 9 Dr. S. R. Bhattacharya stated in his cross-examination that injury Nos. 6 to 10 could be the result of fall and by dragging. Thus doctor further stated that these abrasions could not be caused by the result of lathi blows. The learned Sessions Judge has given a self contradictory finding in his judgment. P. W. 9 Dr. S. R. Bhattacharya stated in his cross-examination that injury Nos. 6 to 10 could be the result of fall and by dragging. Thus doctor further stated that these abrasions could not be caused by the result of lathi blows. The learned Sessions Judge has given a self contradictory finding in his judgment. The learned Sessions Judge has held that the opinion of the doctor on the point that those abrasions could not have been caused by Lathi blows is not acceptable. However; while dealing with the case of accused Rajmani, Daya Shanker and Shashi Kant he made following observation: in the face of the shot fired by Dinesh, there was little occasion for those accused to wield lathis against the deceased. ( 13 ) IN our opinion when three persons were assaulting the deceased with lathis it was expected that at least a few blows would have landed on the person of the deceased. It is unbelievable that all the lathi blows caused only a bras ions due to friction with the surface of the lathis. The matter does not rest here. There is yet another discrepancy between the oral evidence of these two witnesses and the injuries found by the doctor. Both P. W. 1 Ramji Dubey and P. W. 2 Suraj Prasad speak of only one shot being fired by appellant Dinesh due to which the deceased fell down. The post-mortem examination report on the other hand reveals that gun shot injuries fund on the person of deceased Janmejaya are the result of more than one shot. P. W. 9 Dr. S. R. Bhattacharya, in his examination-in-chief, itself stated that the injury Nos. 1,2, and 4 could be result of a single shot but the injury Nos. 3 and 5 could not have been the result of that very shot. The doctor was put other questions by stuck to his opinion that all the gun shot injuries could not have seen caused by a single shot. In view of the conflict with the medical evidence the oral evidence given by P. W. 1 Ramji Dubey and P. W. 2 Suraj Prasad is rendered highly doubtful. ( 14 ) WITH regard to P. W. 2 Suraj Prasad, it is noteworthy that his name does not find place in the F. I. R. Suraj Prasad was none else but the own brother of the informant. ( 14 ) WITH regard to P. W. 2 Suraj Prasad, it is noteworthy that his name does not find place in the F. I. R. Suraj Prasad was none else but the own brother of the informant. Had Suraj Prasad really been present at the time of the incident and had seen the same there was no question of his omitting his name in the F. I. R. Curiously we notice that in his examination-in chief P. W. 1 Ramji Dubey has not mentioned the name of P. W. 2 Suraj Prasad as one of the persons who was present at the time of the incident and had witnessed the same. When Ramji Dubey was being cross- examined regarding motive he suddenly volunteered in para 5 of his cross-examination that Suraj Prasad was also present al the time of the incident. While describing the incident Suraj Prasad has stated that the accused other then the appellant had only Danqas and they struck the deceased with dandast twice. This appears to be a conscious change in the prosecution case. We have already noticed above that post-mortem examination does not mention even single lathi injury. The prosecuting agency was conscious of this fact and, therefore they tried to wriggle out of the difficulty by changing the weapon as Danda in place of Lathi. This witness besides being a highly partisan witness resides in the houses of P. W. 1 Ramji Dubey, Suraj Prasad has given his age as 65 years but in the cross-examination he admitted that in the voters list his age might be recorded even as 75 years. According to the statement made by Ramji Dubey and Suraj Prasad himself, this witness had transferred his entire property to P. W. 1 Ramji Dubey and was wholly dependant upon him for his bread and butter. He could therefore, be made to make statement suited to the version set up by P. W. 1 Ramji Dubey. Apart from inconsistency with the medical evidence the very presence of this witness at the time of the incident is highly doubtful. He could therefore, be made to make statement suited to the version set up by P. W. 1 Ramji Dubey. Apart from inconsistency with the medical evidence the very presence of this witness at the time of the incident is highly doubtful. ( 15 ) THE evidence of P. W. 1 Ramji Dubey discloses that accused Rajmani had lodged a report against Dinesh son of Balram, U/s. 307, I. P. C. regarding a previous incident and in that report appellant was cited as a witness even though the fact was that he had not seen the incident. The cross-examination of P. W. 1 Ramji Dubey goes to show that when he went to the Hospital and he was dictating the F. I. R to Ganesh Prasad Tiwari, Balram had also reached there. In para 16 of his cross-examination, P. W. 1 stated that Balram was not called by him but Balram was earlier present in the village. P. W. 1 Ramji Dubey admitted in this very para that Balram was standing in close proximity behind him at the time of recording his deposition in the Court of Sessions. The defence has suggested to P. W. 2 Suraj Prasad that the sister of Balram is married in Mohalla Rami Patti, Mirzapur and the scribe of the F. I. R. is connected with this Balram, P. W. 1 Ramji Dubey further stated that Ganesh Prasad Tiwari was litering in the Hospital and when he came across Ramji Dubey at about 11. 45 P. M. in the night he asked him to write out the report. He admitted that Ganesh Prasaq Tiwari belongs to Mahalia Rami Patti. Presence of Ganesh Prasad Tiwari at the Hospital at that odd hour of night cannot be taken merely casual. It appears to us that Balram, whose son had been earlier falsely implicated in the case U/s. 307; I. P. C. was playing his own role arid since the appellant was a witness in the F. I. R. against his son he got the appellant falsely implicated in the present case. It had already been pointed out above that Karkar and Danger- nephews of P. W. 6 Paras Ram Dubey, were also accused in the F. I. R. lodged by co-accused Rajmani Dubey. P. W. 1 Ramji Dubey, too, has his house at some distance from the scene of incident. It had already been pointed out above that Karkar and Danger- nephews of P. W. 6 Paras Ram Dubey, were also accused in the F. I. R. lodged by co-accused Rajmani Dubey. P. W. 1 Ramji Dubey, too, has his house at some distance from the scene of incident. He has stated that his residential house is about 40 Latthas from the place of the incident towards south-west P. W. 2 Suraj Prasad also resides in the same house. Thus both these witnesses do not reside in the immediate neighbourhood of the scene of the incident. There is yet another important fact that there is no mention of any light either in the F. I. R. or in the evidence of P. W. 1 Ramji Dubey and P. W. 2 Suraj Prasad and this also shows that in all probability they were not sitting in the dark. It appears to us that the deceased might have been done to death while all alone and out of enmity the appellant as also the three other co-accused, who have been acquitted by the court of Sessions, were made target of false implication. ( 16 ) THE appellants arrival alongwith other co-accused at the time of the incident as stated in the F. I. R. is not proved because in the evidence it is stated by P. W. 1 Ramji Dubey that the appellant was sitting at a nearly well from before and when the other assailants came there he also joined them. This is material shift from original prosecution case. ( 17 ) IN view of what has been discussed above, we are of the opinion that the prosecution has not been able to prove its case beyond shadow of doubt and the appellant is entitled to the benefit of doubt. ( 18 ) IN the result, this appeal is allowed. The conviction and sentence of the appellant passed by the learned Sessions Judge are set aside, appellant is acquited. He is on bail. He need not surrender, His bail bonds are discharged. Appeal allowed. .