JUDGMENT G.D. Dube, J. - These two appeals arise out of the same judgment and order of second Additional District and Sessions Judge, Varanasi, in Sessions Trial No. 259 of 1977 State v. Chhedi Yadav and two others. The learned Additional Sessions Judge had tried Prabhu Yadav, Chhedi Yadav and Nakchhed Yadav for the offence punishable under Section 302 read with Section 34, I.P.C. He had found appellant Prabhu Yadav guilty of the offence under Section 302, I.P.C. and sentenced him to undergo life imprisonment. Aggrieved by this order, Criminal Appeal No. 414 of 1979, Prabhu Yadav v. State of U.P. has been preferred. The learned Sessions Judge had acquitted Chhedi Yadav and Nakchhed Yadav. Against this acquittal, the State has preferred Government Appeal No. 1431 of 1979 State of U.P. v. Chhedi Yadav and another consequently the aforesaid two appeals are being disposed of by this common judgment. 2. The case of the prosecution was that at, about 9.00 a.m. Raja Ram Yadav, uncle of Ramjeet Yadav (P.W. 1) was going with the food of ploughman who were ploughing his field. When he reached the Peepal tree towards north of village Chhitune, Police Station Chaubepur, district Varanasi, Prabhu Yadav, Chhedi Yadav and Nakchhed emerged from a nearby Maize field. Nakchhed Yadav and Prabu Yadav were armed with country made pistol. On the exhortation of Chhedi Yadav, the two accused armed with country made pistol opened fire on Raja Ram. Raja Ram fell down on the ground after receiving gun-shot injuries. The occurrence was seen by Lallu Yadav, Ram Kishun Yadav, Timal Yadav and Raghunath Yadav. 3. The report of the occurrence was lodged by Ramjeet Yadav at 11.30 a.m. the same day at Police Station Chaubepur. The investigation was taken up by Ugrasen Pal Singh (P.W. 9). He proceeded to the place of occurrence along with Shanker Prasad Tripathi (P.W. 7). On the instructions of Suddhu Singh (P.W. 8), Shanker Prasad Tripathi (P.W. 7) conducted the inquest proceedings and sent the dead body in a sealed cover to the mortuary for post-mortem Dr. Nar Singh Sharma (P.W. 4) had conducted the post mortem. Dr. Nar Singh Sharma (P.W.4) had conducted the post mortem examination at 3.00 p.m. on 22.8.77. He had found two gun shot injuries of entrance and four gun shot wounds of exit on the head region. Injury No. 3 communicated with injuries 1 and 2. Nar Singh Sharma (P.W. 4) had conducted the post mortem. Dr. Nar Singh Sharma (P.W.4) had conducted the post mortem examination at 3.00 p.m. on 22.8.77. He had found two gun shot injuries of entrance and four gun shot wounds of exit on the head region. Injury No. 3 communicated with injuries 1 and 2. Injury No. 4 communicated with injuries 5 and 6. These injuries were the cause of death. After completing the investigation, charge sheet was submitted against the three accused persons. 4. The prosecution had examined Ramjeet (P.W. 1) Raghunath (P.W. 2), Lullur (P.W.3) and Smt. Kumari (P.W. 5) as eye-witnesses. Prabhunath Pathak. (P.W. 6) had registered the case as a Head constable. Suddhu Singh (P.W.8) had taken the dead body to the mortuary. 5. The accused had pleaded not guilty to the charges. No witness was produced in defence. 6. The learned Sessions Judge found that the right hand of Nar Singh was useless because it had suffered some fracture. Hence the participation in the crime was doubted. As regards Chhedi Yadav, it was held that the exhortation is a weak sort of evidence. He doubted his complicity in the crime and observed that on account of enmity it was impossible to accept that Chhedi Yadav would have only exhorted. However, the learned Sessions Judge found that the offence was established against Prabhu Yadav. Consequently he was convicted and sentenced for the offence under Section 302, I.P.C. simplicitor. 7. Learned counsel for the appellants urged that once the learned Sessions Judge found that part of the prosecution story was false, then the case against Prabhua Yadav appellant should have also been viewed with great doubt. The circumstances on record were so much apparent that it indicates that the prosecution is not coming forward with correct facts. 8. One of the basic attacks on the prosecution story was the evidence of Smt. Kumari (P.W. 5). It was urged that the name of Smt. Kumari was not mentioned as an eye witness in the first information report. If Smt. Kumari was the actual person, then her name would not have been missed as a witness in the report. 9. The contention of learned counsel for the appellant has sufficient basis. Ramjeet (P.W. 1) has stated in paragraph 14 of his cross-examination that even this Smt. Kumari had informed him about the incident. If Smt. Kumari was the actual person, then her name would not have been missed as a witness in the report. 9. The contention of learned counsel for the appellant has sufficient basis. Ramjeet (P.W. 1) has stated in paragraph 14 of his cross-examination that even this Smt. Kumari had informed him about the incident. Hence this witness, who is a maker of the report, was aware from the very beginning that Smt. Kumari was present at the spot. In these circumstances, her name ought to have been mentioned in the first information report. 10. Smt. Kumari has stated in reply to a question of the trial court that she had told Raja Ram, her husband that he should proceed and she will follow after some time. But all the. witnesses i.e. Raghunath (P.W. 2) and Lullur Yadav (P.W. 3) have stated that Smt. Kumari as also coming behind Ramjeet Yadav at a distance of about twenty Lattha. This distance after the conversion in feet comes to about 130 feet. This shows that Smt. Kumari must have started along with her husband Raja Ram. This circumstances makes the very presence of Smt. Kumari are the spot doubtful. It appears that when the prosecution found that the witnesses were not seeing the correct line of prosecution version, then she was introduced as a last witness. 11. There is no force in the contention of learned A.G.A. that as Smt. Kumari was a member of the family, her name might not have been mentioned in the report. Under the circumstances, mentioned above, the name of Smt. Kumari could not have been omitted from the first information report. Her presence on the spot was also improbable. It has not been dissolved as to why necessity arose for Smt. Kumari to go to the place where ploughman were ploughing when her husband was going with the food of ploughman. 12. In the inquest report, there is a mention that the dead body of Raja Rama yadav was found below a Chhapper. Beneath this Chapper, a bucket, bread tied in a towel and on aluminium container (dibba), which was found smeared with curd, were lying near the dead body. 12. In the inquest report, there is a mention that the dead body of Raja Rama yadav was found below a Chhapper. Beneath this Chapper, a bucket, bread tied in a towel and on aluminium container (dibba), which was found smeared with curd, were lying near the dead body. The officer, who has conducted, the inquest report denied in his cross-examination that he had found the dead body beneath the Chhapper learned counsel for the appellant has rightly argued that the deceased was sleeping under the Chhapper in order to watch his field. He was murdered in the night and in the morning the whole story was cocked up. It has been admitted by the eye-witnesses that Raja Ram has his field near the Peepal tree, beneath .which his dead body was found. All the eye-witnesses have denied this fact that the dead body was found beneath any Chhapper. Even the officer, who conducted the inquest, denied it. In order to meet this discrepancy, Ugrasen Pal Singh (P.W. 9) tried to make improvement by saying that in order to protect the dead body, a small Chhapper was kept over it. This explanation does not help the prosecution. The observations of Shanker Prasad Tripathi (P.W. 7) at the time of inquest make it clear that the dead body and the food were found below a Mandai. It is probable that the food of Raja Ram was sent to him in the Mandi and the food remaining unused was kept tied in a towel.'The investigating officer had not found any sign of curd at the spot. Only some curd was found smeared in the aluminium container (dibba). Therefore, the theory that the deceased was killed below this Chhapper cannot be ruled out. 13. Ramjeet (P.W.1) has admitted that Raghunath (P.W. 2) is his grand father. However, this relationship was denied by Raghunath in his cross-examination. Ramjeet is not a witness of the occurrence. He stated that he was informed about the occurrence by Lullur, Smt. Kumari Raghunath and Ram Kishun. 14. Ramjeet (P.W. 1) has admitted in paragraph 26 of his across-examination. that no person named Lullur, son of Suman Yadav, is a witness of the occurrence. This very witness has been introduced as P.W. 3. He has admitted in his cross-examination that there is none else except him with father's name Suman Yadav in his village. 14. Ramjeet (P.W. 1) has admitted in paragraph 26 of his across-examination. that no person named Lullur, son of Suman Yadav, is a witness of the occurrence. This very witness has been introduced as P.W. 3. He has admitted in his cross-examination that there is none else except him with father's name Suman Yadav in his village. Thus the statement of Ramjeet excludes Lullur (P.W. 3). 15. Thus we have seen that Raghunath is a close relative of Ramjeet. He has not courage to admit his close relationship with Ranjeet. The statement of Lullur Yadav stands excluded by the statement of Ramjeet. Lullur is also a chance witness. He has stated that he generally milks the animals of farmers of nearby villagers. He collects the milk and sells it in Varanasi. He stated in cross-examination that on that day he did not go to Varanasi because he had pain in his stomach. If he had pain in the stomach, then it is improbable that he would have gone even to the villages to collect milk. 16. The above discussions show that the evidence of the prosecution was not at all reliable. Ramjeet had admitted in his cross-examination that he has his Mandi near the Peepal tree. The dead body of the deceased and other articles, which he was allegedly carrying, were found beneath this Mandai Therefore, there is every probability that the murder was committed in this Mandai. The prosecution is coming forward with a cooked up story. 17. The learned Sessions Judge has disbelieved the presence of two accused, namely, Chhedi Yadav and Nakchhed Yadav. There is no evidence to show that the finding of the learned Sessions Judge in this respect was perverse or not based on evidence on record. We have seen above that the evidence of the prosecution is not at all reliable. The lower court had, therefore, erred in convicting appellant Prabhu Yadav. In the result, Government Appeal No. 1431 of 1979 fails and is dismissed. The judgment and order of the trial court regards acquitted are maintained. Criminal Appeal No. 414 of 1979 is allowed. The judgment and order of the trial court convicting and sentencing appellant Prabhu Yadav are set aside. He is acquitted of the charge under Section 302, I.P.C. He is on bail. He need not surrender and his bail bonds are cancelled and sureties discharged.