JUDGMENT Mr. Palok Basu, J. - Ram Kumar, Singh , Nripat Bahadur and Asarjit Singh have preferred this appeal against the judgment and order dated 31.7.1979 passed by learned IV Addl. Sessions Judge, Fatehpur in Sessions Trial No. 13 of 1979 convicting and sentencing all of them under Section 302/34 I.P.C. to Imprisonment for life. 2. The charge against the appellants was that on 7.8.77 at about 6 p.m. they, Ram Kumar armed with a gun and Nripat Bahadur and Amarjit Singh armed with Tamanchas shot at Uttam Singh deceased with the common intention causing his death punishable under Section-302 I.P.C. read with Section 34 Indian Penal Code. 3. The prosecution case is that Ram Saran who is the sister's son of Uttam Singh deceased was accompanying the deceased alongwith Smt. Shankuntala, sister of the deceased and Km. Punita, deceased's sister's daughter, were coming from their tubewell and when they reached the western corner of the house of Jageshwar Singh they met the appellants Ram Kumar armed with a gun and Nripat Bahadur and Asarjit Singh armed with country made pistols. Ram Kumar appellant abused Uttam Singh deceased challenging him not to move as he would be rewarded suitably for having got him (appellant Ram Kumar Singh) arrested by the police. Then Ram Kumar Singh fired from his gun whereafter two other appellants Nripat Bahadur and Asarjit Singh also fired at Uttam Singh with their pistols. As a result of the injuries Uttam Singh fell dead and died. Apart from the persons mentioned above, one Ram Singh was said to have witnessed the incident who has not been produced. Ram Saran Singh got prepared a F.I.R. and Lodged it at the Police Station at 7.30 p.m. which has been proved as Ext. Ka- 1. On the basis of the said F.I.R. a case was registered in the general diary by Munwar Khan proved as Ext. Ka-4. P.W.8 Deonath Pandey, Station Officer was present when the F.I.R. was lodged and he took up investigation immediately. It is said that he ordered inquest report in the said night which was witnessed by P.W.1 Bindraban and prepared Naksha lash and challan lash Exts. Ka-6 and Ka-7 respectively whereafter he dispatched the dead-body of Uttam Singh for post-mortem examination vide letter Ext. Ka-7. 4. It is said that he ordered inquest report in the said night which was witnessed by P.W.1 Bindraban and prepared Naksha lash and challan lash Exts. Ka-6 and Ka-7 respectively whereafter he dispatched the dead-body of Uttam Singh for post-mortem examination vide letter Ext. Ka-7. 4. The dead body of Uttam Singh duly sealed was sent through the constable Ram Sundar Sharma P.W. 2 and Ram Gopal for post-mortem examination at Fatehpur. 5. The post-mortem on the dead body of Uttam Singh was performed by Dr. V.K. Agrawal, Medical Officer district hospital Fatehpur P.W.5 on 8.7.77 at 12.30 O'Clock in the noon. He found the following ante-mortem injuries on the person of Uttam Singh. 1. Gun shot wound of entry 1'/4" X 1'/4" X brain cavity deep on the right side face 1" in front of right ear with communicated fracture of underlying bones. Margins were inverted. Blackening and tattooing present. Brain matter mixed with blood flowing out of wound. Directions right to left and upward. 2. Two gun shot wounds of exist in an area of 4" X 2" on the left partical region of head 1"from left ear. The upper one measuring 2" X 1" brain deep and lower one measuring " " X brain deep lying at a distance of ' X from each other. The margins were overted. Blackening and tattooing were absent. Brain matter mixed with blood coming out. Injury No. 2 communicating with injury No. 1. 3. Abraded contusion 1" X " on the right forehead 1" above right eye brow. The external examination on the dead body revealed that as a result of injury No. 1 the scalp was lacerated. Wadding pieces were found in the brain. The blood mixed with brain matter was found flowing our of wound. The house of the base of brain had communicating fracture. 5 ounce of digested food was found in the small intestine. The post-mortem report was prepared by Dr. V.K. Agrawal P.W.5 in his own hand writing vide Ext. Ka. 2 the same day. He took shift Ext. 1, Baniyan Ext. 2 and an underwear Ext. 3 put on by the deceased Uttam Singh, sealed them and sent in a scaled packet to S.P. Fatehpur for necessary action. But the wading pieces recovered from the dead-body were kept in an envelope and was sealed and sent to the S.P. Fatehpur. 2 the same day. He took shift Ext. 1, Baniyan Ext. 2 and an underwear Ext. 3 put on by the deceased Uttam Singh, sealed them and sent in a scaled packet to S.P. Fatehpur for necessary action. But the wading pieces recovered from the dead-body were kept in an envelope and was sealed and sent to the S.P. Fatehpur. On opening of that envelope in the Court Dr. V.K. Agrawal identified those wad pieces which have been marked as Ext. 4 during trial. In the opinion of the doctor the death of Uttam Singh was caused on account of shock and hamorrhage and as a result of gun shot injury received by him. He further gave his opinion that the death of Uttam Singh could have been caused at about 6 p.m. on 7.3.77. The injury received by Uttam Singh was in the opinion of Medical Officer sufficient to cause death, in the ordinary course of nature. In order to prove the charge the prosecution has examined three eye-witnesses in this case namely P.W.3 Ram Saran Singh, informant, his Mausi P.W.4 Shakuntala and his sister P.W. 6 Punita Devi. A reference about all other formal witnesses have already been made above. At the trial the appellants denied their participation in the incident and attributed their false implication due to enmity. From the suggestion in the cross-examination it appears that defence asserted that the deceased was done to death in the cover of darkness under unknown circumstances by a sudden fire and the case was that of hit and run. They also set out reasons why they have been falsely implicated. No witness was examined in defence. But they have filed Ext. Kha. 1, a copy of the judgment in S.T. No. 95 of 1978 and Ext. Kha. 2 a copy of the deposition of Harpal Singh, S.I. in another S.T.N. 219 of 1977. The first judgment indicated that the accused were acquitted and the second judgment indicated that the deceased had worked as police informer. Sri V.B. Singh and Sri Kama] Krishan, learned Counsel for the appellants have argued the matter on behalf of the appellants and Sri Jitendra Singh, learned A.G.A. has appeared on behalf of the State of U.P. The entire record has been examined. At the outset it may be stated here that there is no independent witness coming forward to depose about the occurrences. At the outset it may be stated here that there is no independent witness coming forward to depose about the occurrences. The incident had happened away from the Abadi towards western corner of Verandah of the house of one Jageshwar Singh. The presence of three alleged eye-witnesses must be consistent with the medical evidence and also should be found to inspite confidence so as to enable recording of conviction of the appellants. The F.I.R. makes specific allegation that :- "EKDAM TEENO NE MERE MAMA PAR FIRST BAR KIYE JOKI UNKE SAR PAR LAGA AUR VAHIN RASTE KE PAAS HI GIR KAR MAR GAYE......." 6. Translated into English it would mean that atonce all the three accused fired at the maternal uncle which hit his head and he fell down on the road and died. The post-mortem examination report, however, indicates that there was only one entry wound on the head but two other injuries mentioned against serial No. 2 were wounds of exit. The third injury was abraded contusion which is insignificant for the present discussion. Consequently in the trial the eye-witnesses have changed their version so as to bring it in line with the post-mortem report. P.W.3 Ram Saran Singh makes a statement in the examination-in-chief that Ram Kumar Singh fired from his gun but he did not see whether it hit first Mama or not. He further says that soon after Asarjit Singh and Nripat Bahadur appellants came forward and fired which hit his material uncle on the head who fell down instantaneously and died. In further cross-examination he has said that all the three appellants had fired from a distance of more than five feet away from the deceased. P.W.4 Smt. Shakuntala was not a resident of the village of the incident as her in law's house fell at a village about five miles away. She says that she came to celebrate festivals with her brother deceased Uttam Singh. She says that she had gone with about 20 kg. wheat for being made flour to flour mill nearabout the tubewell of the deceased. However, since there was no electricity the wheat could not be converted into flour. She says that she came to celebrate festivals with her brother deceased Uttam Singh. She says that she had gone with about 20 kg. wheat for being made flour to flour mill nearabout the tubewell of the deceased. However, since there was no electricity the wheat could not be converted into flour. She says in the cross-examination that she had seen Ram Kumar Singh firing at the deceased Uttam Singh which had hit him as a result of which he fell down and after he had gone a few steps otner appellants also fired which had hit him but in the second breach she says that she is not very sure as to whether firing by the two appellants other than Ram Kumar Singh had hit the deceased or not. She admitted that in her statement under Section-161 Criminal Procedure Code she had attributed firing to Asarjit Singh and Nripat Bahadur only and that on account of those two firing Uttam Singh had died and that statement was correct. P.W. 6 Punita Devi is a girl of about 12-13 years and was a child witness. Oath was administered to her by the trial Judge after putting necessary questions to her. In the cross-examination she has said that Ram Kumar Singh had fired at her Mama from a distance of 5-6 paces and she did not know whether it hit him or not but the other two appellants had fired on her Mama which hit him and he fell down. She has said that she does not remember that whether she has made a statement under Section 161 Criminal Procedure Code to the Investigating Officer that Ram Kumar Singh had fired at his Mama which had hit him on the head. Then in further cross-examination she has said that the statement which she had given to the Investigating Officer was correct and again she says that the statement that she had given on that day before the Court was also correct. It is apparent that on seeing the injuries on the deceased on unexperience villager may have thought that three injuries by gun shot were caused on the head of the deceased, and therefore in the F.I.R. there was specific nomination of three firings simultaneously by the three appellants which hit the deceased. A subsequent change in the statement as noted above cast more than enough doubt on the prosecution story. A subsequent change in the statement as noted above cast more than enough doubt on the prosecution story. It also simultaneously becomes doubtful as to whether any of these three witnesses were at all present and had seen any occurrence. 7. Eye witness account being not in conformity with the medical report about the injuries sustained by the deceased it is impossible to hold who could have been the real assailant whose single shot had hit the deceased and under what circumstances. It must, therefore, be held that the prosecution has failed to prove the charge against the appellants beyond reasonable doubt. 8. Consequently this appeal succeeds and is allowed. The conviction and sentences of the appellants are set aside. They are on bail, they need not surrender and their bail bonds are hereby discharged.