JUDGMENT N L. Ganguly, J. -This criminal appeal is directed against the judgment and order in Sessions Trial No. 271 of 1989 passed by the special and additional Sessions Judge, Azamgarh, Sri Sanwal Singh dated 30-4-1991, convicting the appellant Achchey Lal under Section 302 I. P. C. and awarding him to death sentence. The Reference No. 2 of 1991 made by the learned court below for the confirmation of the sentence is also connected with the above appeal. 2. According to the prosecution case, an FIR. was lodged by Mirchabi at 8.20 P- M. on 6-4-1988 at the police station Ahraula, district Azamgarh, about an incident which had taken place at about 6.30 p. m. in a village, Kanpur Balhma. Smt. Samrathi aged about 70 years, was murdered by appellant, Achchey Lal at the instigation of co-accused Raj Deo, Jia Lal and Ramgya. It is stated that the co-accused person with the appellant, Achchey Lal had enmity with Smt. Samarathi and a number of cases were going on between them. On account of the said enmity, the accused persons and the appellant had reached the village Khaupur Balhma at the time of incident. The informant, Mirchahi, stated in the F. I. R. that Smt. Samarathi was his sister and her husband, Madho Yadav, had died five years ago. There was no issue of Smt. Samarathi. The informant, Mirchahi, used to look after the deceased Samarathi and stayed with her at her village Khaupur Belhma. It is said in the c I R that the aforesaid accused persons had reached the door of the house of Samarathi and had asked, where Samarathi was. In the mean time Smt. Samarathi came out of her house. On seeing these persons, she tried to run towards the village and reached near the door of Rajendra when the appellant, Achchey Lal, fired with a country-made pistol on her hitting her on her back. She fell down and died on the spot. The informant stated that he and Ram Daur Yadav and a number of villagers had seen the incident of assault. The informant lodged the F.I.R. at 8.20 p m. at the police station Ahraula which is at a distance or 7 km. from the scene of incident. 3. The report was recorded by the Head-constable, and check report as prepared. The informant stated that he and Ram Daur Yadav and a number of villagers had seen the incident of assault. The informant lodged the F.I.R. at 8.20 p m. at the police station Ahraula which is at a distance or 7 km. from the scene of incident. 3. The report was recorded by the Head-constable, and check report as prepared. The investigating officer reached the place of occurrence at the village Khaupur Belhma the same night at about 10.20 p.m. He inspected the site of incident and recorded the statement of witnesses Ram Daur. The investigating officer did not prepare the inquest at night which was done on 7-4-1988 and a memo was prepared in presence of witness Desarath Yadav and Munnu which was proved in the sessions trial as Ext. Ka. II. The Investigating Officer had found the dead-body on a cot near the door of Rajendra. Blood stained earth was recovered along with clean earth from below the cot. After the inquest memo was prepared, the dead-body of deceased Samarathi was sealed and sent to the mortuary for post-mortem examination. 4. The case was committed to the court of sessions and charges were framed on 29-1-1990. The appellant, Achchey Lal was charged under Section 302 I. P. C simpliciter and co-accused Raj Deo, Jia Lal and Ramagya were charged under Section 302/34 I. P. C. The co-accused persons and the appellant had denied the charges and pleaded not guilty. 5. The prosecution examined eyewitnesses Ram Daur (P- W. 2) and Mirchahi ( P, W. 3) as witnesses of fact. The other witnesses, namely, Dr T.K. jha (P. W. 1) was examined to prove the post mortem report. Other witnesses of formal nature, namely, Gokaran Singh (P. W. 4), S. S. I., was examined by the prosecution. The affidavits of formal witnesses who had carried the dead body after sealing to the mortuary were filed to prove the said formal facts. 6. The co-accused, namely, Raj Deo, Jia Lal and Ramagya who were charged under Sections 302/34 I. P. C. were acquitted by the learned court below. 7. We have heard the learned counsel for the appellant Sri J. N. Chaturvedi at length. The entire evidence of record and the judgment of the court below was placed before us. We have carefully examined the eyewitnesses and evidence of formal nature adduced in the present case. 8. 7. We have heard the learned counsel for the appellant Sri J. N. Chaturvedi at length. The entire evidence of record and the judgment of the court below was placed before us. We have carefully examined the eyewitnesses and evidence of formal nature adduced in the present case. 8. From the perusal of the F. I. R. it is clear that Smt. Samarathi who was sister of the informant, Mirchahi, and widow of Madho Yadav had lived at village Khaupur Belhma in district Azamgarh. She was issueless. Her husband Madho Yadav had died five years back from the date of incident. The informant, Mirchahi, is the brother of the deceased Samarathi who had stated in F. I. R. to be living with the deceased Samarathi at village Khaupur Belhma and looking after the deceased and her properties there. As stated in the F.LR there had been several cases going on between the deceased Samarathi and Raj Deo, son of Akshaibar Yadav, Achchey Lal, Jia Lal, both sons of Rajdeo, resident of village Hathnaura Khurd, district Azamgarh. It was stated that on account of this enmity, the four accused persons had come to the village of the deceased and reached the door house of Smt. Samarathi, deceased. The co-accused persons asked from the informant where Samarathi was. Smt. Samarathi, in the mean time, came out of the house. Seeing these persons at the door, she tried to turn towards the village and had reached the door of Rajendra when Achchey Lal, appellant, fired at her hitting on her back and she died on the spot. It was mentioned in the F. I. R. that Ram Daur Yadav and many persons of the village had seen the incident. The prosecution examined eye-witnesses namely, the informant Mirchahi (P. W. 3) and Ram Deo Yadav, (P. W. 2). It is worth-noting that besides these two eye-witnesses no other eye-witnesses of the village was examined during trial, although this was mentioned in the F. I. R. that a number of other people of the village had seen the incident. 9. Since the learned court below acquitted the co-accused, Raj Deo, Jia Lal and Ramagya and relied on the statement of all these two eye-witnesses for awarding death sentence to the appellant. 9. Since the learned court below acquitted the co-accused, Raj Deo, Jia Lal and Ramagya and relied on the statement of all these two eye-witnesses for awarding death sentence to the appellant. Achchey Lal, under Section 3l)2 I P.C. the evidence of eye-witnesses Ram Daur (P. W. 2) and the informant Mirchahi (P. W. 3) assumes much importance and needs careful scrutiny and examination. 10. Before considering the statement of these eye-witnesses, the points raised by the learned counsel for the appellant, Sri J. N. Chaturvedi, may be stated as under : (i) The incident appears to have not witnessed by any of the witnesses and the incident appears to have taken place during night hours and the F.I.R. is ante-timed. (ii) The witnesses Mirchahi (P.W.3) is highly interested witness and enimical. Ram Daur Yadav (P. W. 2), a chance witness, is also enimical. (iii) The manner in which the incident had taken place is highly improbable. There were contradictions in the statements of the witnesses and the statement of the Investigating Officer ^and the informant read together show that the incident had not taken place at 6.201 p. m. as stated by the informant, Mirchahi, either, it is established from the statement of the Investigating Officer and the informant that the incident had taken place some times at 8 OClock in the night. (iv) Lastly, it was submitted that the presence of the dead body on the cot with blood injuries shows that the incident had taken place when Samarathi, deceased, was asleep on the cot, and some one had fired and killed her. This argument was advanced on the ground that it was the normal conduct in our society that the body of a dead person is not kept on a cot. Rather, is placed on the earth soon after the death. The manner in which the dead body was kept after the incident on the cot is unbelievable and supports the defence case. 11. Three accused persons acquitted are Raj Deo son of Akshayabar Yadav, Jia Lal son of Raj Deo Yadav. appellant, Achchey Lal, is also son of Raj Deo Yadav. These persons are residents of village Hathnaura Khurd, P. S. Phoolpur, District Azamgarh and the other accused Kamagya, son of Behari Yadav, is the resident of village Khaupur Belhma, village of the deceased. appellant, Achchey Lal, is also son of Raj Deo Yadav. These persons are residents of village Hathnaura Khurd, P. S. Phoolpur, District Azamgarh and the other accused Kamagya, son of Behari Yadav, is the resident of village Khaupur Belhma, village of the deceased. This shows that the first three accused persons including the appellant are all one family, father and sons, and Ramagya is of a different family. Admittedly, there were a number of cases pending between deceased, Smt. Samarathi and the accused persons which is said to be cause of enmity. 12. The examination of statement of Mirchahi, informant, P.W. 3, shows that at the time of incident when the four accused persons had reached the village of deceased, Samarathi, Khaupur Belhma, all were without arms except Achchey Lal, appellant, who had a country-made pistol (Katta). The witness, Mirchahi, who is the brother of Samarathi claimed to be staying with the deceased Samarathi for looking after her and her property. 1 h+ husband of deceased, Samarathi, had died five years back. It was stated that Ramagya, co-accused, had enquired where the deceased Samarathi was. The informant was about to reply. In the mean time, Smt. Samarathi came out of her house. When she saw these persons, she ran towards south of her house and she saw these four persons. Out of fear, she tried to run towards south and had reached five paces that three accused persons surrounded her from the front side. The co-accused persons instigated the appellant Achchey Lal why was he looking to her. Fire at her. On the said instigation of Rajdeo, appellant Achchey Lal fired from a close range of 1 hands on the deceased from a country made pistol at the door of house of Rajendra where she fell down on the spot and died. He stated that 2-4 persons of the village had assembled there. The body of deceased Samarathi was put on the cot there. He got the report scribed by Pradhan of the village, Dasarath. The said report was lodged at the police station at 8 20 p.m. The F. I. R. was proved and marked as Ext Ka 2. He admitted that there were five or six cases pending between Smt. Samarathi and the accused persons and Mirchahi, informant, used to do pairvi on her behalf in the said cases. The said report was lodged at the police station at 8 20 p.m. The F. I. R. was proved and marked as Ext Ka 2. He admitted that there were five or six cases pending between Smt. Samarathi and the accused persons and Mirchahi, informant, used to do pairvi on her behalf in the said cases. It is strange that the accused persons assaulted an old lady of 70 years of age and did not attempt to cause a scratch over Mirchahi who was the man doing pairvi on behalf of Smt. Samarathi and was her brother. The witness admitted in his statement that 1 year before the incident of murder of Virendras who is the son of Mirchahi got an agreement of sale executed in her favour from Smt. Samarathi. Virendra is admittedly son of informant Mirchahi. The witness tried to avoid making correct statement but admitted that they (Virendra, his son) wanted to have the land of the deceased. Informant Mirchahi, stated that his own village is at a distance of 6 kos (12 miles approx.) where he had his own cultivation, family and children. The witness stated that in the F.I.R. he had not mentioned that several persons of the village had seen the incident of murder. He contradicted the version of the F.I.R. in his statement before the court below. The witness, Mirchahi, stated that the deceased had tried to run towards the village in the north side and had reached near the door of Rajendra when she was surrounded by accused persons Rajdo, Jia Lal and Ramaga from the north side. The appellant Achchey Lal had shot the fire from the southern side which hit on the back of the deceased. If we appreciated the facts stated by this witness, Mirchahi, it would appear highly improbable that three accused persons would surround the victim from the north side and ask the co-accused appellant who is said to be chasing from the southern side to fire hitting at the back of the deceased by a fire-arm. The fact as it is shown no person would ask to fire with a fire arm towards them to hit a person just in their front. This would be great risk for the three accused persons, Rajdeo, Jia Lal and Ramagya to instigate the appellant, Achchey Lal to fire at the deceased from the southern side. The fact as it is shown no person would ask to fire with a fire arm towards them to hit a person just in their front. This would be great risk for the three accused persons, Rajdeo, Jia Lal and Ramagya to instigate the appellant, Achchey Lal to fire at the deceased from the southern side. If such a shot is fired when these persons were surrounding her, there was chance of fire hitting them also. No one would dare to invite such risk of injuries on his person. In the evidence it has been said that fire was shot from a distance of 1 hands The post-mortem report shows that the injuries of fire arm were with no tattooing or charring. The nature of injuries on the deceased show that it was not from such a close range as stated by the informant, Mirchahi. It was no doubt from a close range but not from such a close range of 1 hands. Otherwise there was likelihood of presence of charring near the injury. The other aspect of the case is that the victim had received the fire injury on her back and died on the spot. It was said that the witnesses and the informant had put the dead body on a cot at the door of Rajendra. It was also stated that the cot was placed just near the place of incident where she had fallen. It was also stated that blood was found at the place where she had first fallen and also below the cot where her dead-body was put by the witnesses. The statement of witnesses show that the blood stained earth was recovered from two places, namely, from the place of incident and from below the cot where the dead-body was kept. The Investigating Officer, Gokaran Singh (P. W. 4) contradicted the statement and stated to have recovered blood-stained earth from below the cot and not from the place where the deceased Samarathi had fallen after receiving the gun-shot. The informant, Mirchahi, stated in the cross-examination that the police had arrived at the place of incident after 2 hours of the incident. The Sub-Inspector, Gokaran Singh, P. W. 4, stated to have reached the village and place of incident at 10.10 p.m. the same night. If the version of the informant is correct, then the time of incident shifts to 8. The Sub-Inspector, Gokaran Singh, P. W. 4, stated to have reached the village and place of incident at 10.10 p.m. the same night. If the version of the informant is correct, then the time of incident shifts to 8. 10 p.m. or so and the prosecution case that the incident had taken place at about 6.30 p.m. becomes doubtful. 13. We thoroughly examined the statement of eye-witnesses Ram Daur, P. W. 2 This witness is resident of village Kuraso. He was asked in the cross-examination about the distance between his village Kuraso and Khaopur Belhma, the place of incident. He stated that the distance may be 3 kms. between the two villages and at one stage the distance of his village and the village of incident to be 1 km The statement of this witness further shows that on the date of incident he had reached the village in search of labourer at 6.30 p m. and had witnessed the incident. This witnesess stated that, he had not talked to any labourer in the village of the incident nor could he found any labourer that day. Ram Daur, P. W. 2, had not stated before the Investigating Officer that on the date of incident he had reached the village of incident while he had gone out to search for the labourers. The witness stated that after the incidenf he left the place of incident after a little while and in the night he was called by the Investigating officer at 11 p.m. and statement was then recorded. In the cross-examination the witness Ram Daur stated that Smt. Samarathi had put on a printed half-shirt. There was one pocket on the left upper part of the shirt. The post mortem report (Ext. Ka. S) shows that the deceased had a blouse on her person and not a shirt. Ram Daur stated that there was no witness present except him and Mirchahi. Ram Daur admitted that Virendra his son of Mirchahi and an agreement to sell was got executed in the name of his wife (Virendras) and Khuddus. The presence of Ram Daur at the time of incident as stated by him is highly doubtful. Ram Daur stated that there was no witness present except him and Mirchahi. Ram Daur admitted that Virendra his son of Mirchahi and an agreement to sell was got executed in the name of his wife (Virendras) and Khuddus. The presence of Ram Daur at the time of incident as stated by him is highly doubtful. He is a chance witness and cannot be explicitly relied for believing the prosecution case as narrated in the F.I.R. The prosecution case as disclosed in the F.I.R. and the charge-sheet is not proved by the evidence of reliable witness. Mirchahi, informant, P. W. 3, is highly interested witness. The fact that initially in the F. I. R. it was stated that there were a number of other witnesses who had witnessed the incident but during the trial independent witnesses were not produced or withheld and only interested and chance witness Mirchahi and Ram Daur were examined. The manner of the incident stated by them is also not free from doubt as stated in the earlier part of this judgment that ordinarily no one would ask anyone to fire a shot at a person just infront of him as there are chances of the fire shot causing injuries, to such person also. The prosecution case involving Rajdeo, Jia Lal and Ramagya, was not accepted by the learned court below as proved and they have been given clear acquittal by the court below. The normal conduct in our part of the country is to place the dead-body on the ground just after the death,of a person. In the present case, the dead-body which had fallen on the ground at the door of Rajendra was put on a cot and placed there which conduct is uncommon and not believable. The fact that the blood was found at two places, namely, the place of incident where the deceased had fallen and the place below the cot where the dead body was kept as stated by Mirchahi and Ram Daur (P. W. 3 and 2, respectively) The Investigating Officer, Gokaran Singh has stated to have found the blood only from below the cot which also indicates that the prosecution is concealing some material facts. The other important aspect, is already dealt with, about the time of the incident and arrival of the police at the place of incident as stated by Mirchahi about the arrival of the police after 2 hours of the incident is also not believable. Because if that be so, the time of incident would shift around 8 Oclock and not at 6.30 p.m. as disclosed by the prosecution. From the overall assessment of the evidence of the eye-witnesses we are of the opinion that the prosecution case is highly doubtful and unbelievable and no conviction and sentence can be recorded against the appellant on the basis of the evidence before the court. We accordingly are of the view that the conviction and sentence awarded to the appellant, Achchey Lal, in Session Trial No- 271 of 1989 under Section 302 I. P. C. by the judgment and order dated 30-4-1991 passed by the special and Additional Sessions Judge, Azamgarh, is bad in law and is liable to set aside and the present appeal is liable to be allowed. 14. We order accordingly. 15. The aforesaid Reference no. 2 of 1991 is also rejected. The appellant, Achchey Lal, be set at liberty forthwith unless wanted in some other case.