( 1 ) THESE two appeals have been filed by Rishipal, Sripal and Ratnoo against their convictions under sections 302/436 I. P. C. and under sections 302/436 I. P. C. read with section 34 I. P. C. respectively and their sentence to life imprisonment under section 302 I. P. C. and four years rigorous imprisonment under section 436 I. P. C. recorded by 6th Additional District Judge, Meerut vide judgment dated 8/9/1979. ( 2 ) THE incident is said to have occurred on 17/11/1978 at about 1. 00 A. M. in village Gaisoopur eleven and half miles from Police Station Kithore, District Meerut. The First Information Report lodged by Sulhar (P. W. 1) discloses the following prosecution story: ( 3 ) SULHAR, Chhidoo and Kallu Singh had taken the guave crop in the grove of Bhanwar Singh Sadhu for Rs. 700. 00 and all these three persons lived in the same groves. Bhanwar Singh Sadhu was demanding half of the agreed price and these three persons had promised to pay the same within two or three days. One Nannoo son of Dan Singh of village Saupur was indebted to the society and the fields of Nannoo were to be auctioned in connect on with loan. Chhidoo was serving with Nannoo. Nannoo had asked Chhidoo to sell his land and to payoff the loan and in return Nannoo had promised to pay the sale proceeds of six big has of sugarcane crop as well as to sell his land in favour of Chhidoo. In consequence of this arrangement Chhidoo had sold four and a half bighas of land to Mulla Sekhwat and had paid Rs. 4,000/- to Nannoo. Chhidoo started demanding his money but Nannoo was not returning money but was avoiding the same. A Panchayat had also taken place and Nannoo had promised to pay back the money within eight days of Nahan. One day before this occurrence, Chhidoo had visited Nannoo for making another demand and then an altercation had taken place between Chhidoo on the one hand and Nannoo and his sons Rishipal and Sripal on the other hand, Rishipal and Sripal had also issued threats to Chhiddoo to kill him so that he may not make any further demands of the money. Chhiddoo had told about this altercations and threat to Sulhar and Kalloo Singh at about 8. 00 p. m. on the previous evening. Chhiddoo had told about this altercations and threat to Sulhar and Kalloo Singh at about 8. 00 p. m. on the previous evening. Then on the night between 16/17. 11. 1978 at about 1. 00 A. M. Chhidoo was sleeping in the Madaiya of Bhanwar Singh Sadhu. Kalloo Singh was sleeping in a Chhappar in front of Madaiya. Complainant Sulher was chasing away bats. Appellants Rishipal and Sripal armed with country-made pistols and appellant Ratnoo armed with a knife came to the Madaiya of Bhanwar Singh Sadhu. Sulhar flashed his torch and challenged the culprits. Kalloo Singh also flashed his torch. Appellant and Rishipal also flashed his torch and saw Chhiddoo and Bhanwar Singh Sadhu. He challenged Chhidoo and said that now he would not be saved. The witnesses raised alarm. Chhiddoo folded his hands so that he may escape injury. Appellant Ratnoo instigated the other two appellants to kill the victim and then Rishipal and Sripal fired one shot each at Chhiddoo who was hit and fell down. Rishipal and Sripal then caught hold of Bhanwar Singh Sadhu and brought him outside and put their pistols on his chest and threatened that Bhanwar Singh Sadhu had to live in the same jungle and he should not disclose this incident to any body otherwise he would be killed. These two appellants also threatened Sulhar and Kalloo Singh. Appellant Sripal then said that the Madaiya should be set on fire. Rishipal closed the door of the Madaiya and then Sri pal from the eastern side and Ratnoo appellant from Western side set fire to the Madaiya. The roof of the Madaiya started burning. The three culprits are then said to have proceeded towards the road and were seen by the witness Siddh Raj who had come on hearing the alarm. After the culprits had left, the witnesses opened the door of the Madaiya and brought Chhiddoo outside the Madaiya Chhiddoo had died. Several villagers had also collected by that time. Due to fear the complainant could not come to the Police Station in the night. The First information Report also mentions that when appellant Ratnoo was setting fire to the Madaiya, he had put his knife on the floor. The complainant is said to have brought that knife to the Police Station at the time of lodging the First Information Report. ( 4 ) THIS report was lodged at 10. The First information Report also mentions that when appellant Ratnoo was setting fire to the Madaiya, he had put his knife on the floor. The complainant is said to have brought that knife to the Police Station at the time of lodging the First Information Report. ( 4 ) THIS report was lodged at 10. 30 A. M. on 17/11/1978. Investigating Officer Khem Singh, (P. W. 10) was present when the First Information Report was lodged. He proceeded with investigation, recorded the statement of Sulhar, prepared lard of that knife allegedly left by Ratnoo and then visited the place of occurrence. He got the inquest report of the deceased Chhiddoo prepared through S. O. Chhotey Singh. He also found blood at the place where the dead body was lying and collected blood stained and unstained earth and prepared lard. He also collected the ashes of the burning Madaiya and prepared lard for the same. He then recorded the statements of witnesses Kalloo Singh, Bhanwar Singh and Siddh Raj. He found a Chadar of Bhanwar Singh Sadhu burnt at one corner and took the Chadar in his custody and prepared Tlard for the same. He also saw the torches of Kalloo and Sulhar, found the torches in working condition and prepared lard for the same. He inspected the spot and prepared site plan. The dead body of Chhidoo was handed over to Constable Rati Ram on 17/11/1978 who had reached the police station Meerut on 18/1/1978 at 1. 10 P. M. ( 5 ) DR. V. P. Singh, (P. W. 9) conducted the post mortem examination on the dead body on 18/11/1978 at about 3. 45 P. M. in mortuary and found the following ante-mortem injuries on the person of the deceased: (1) Gun shot wound of entry blackening in an area of 6 cm x 4 cm. (2) Wound of entry 3 cm x 2. 5 cm x right chest cavity front and upper part 8 cm from right nipple. (3) Multiple gun shot wound 15 cm x 12 cm front of chest right side around injury No. 2. (4) Gun shot wound of entry 3 cm x 2 cm back of left fore arm upper part. (5) Multiple wound in an area of 7 cm x 5 cm around injury No. 4. Both bones fractured. (3) Multiple gun shot wound 15 cm x 12 cm front of chest right side around injury No. 2. (4) Gun shot wound of entry 3 cm x 2 cm back of left fore arm upper part. (5) Multiple wound in an area of 7 cm x 5 cm around injury No. 4. Both bones fractured. The doctor also found the following post mortem injury burn injury post mortem on left shoulder, left face, right scapula, right upper arm back side. In the opinion of the doctor, the death was due to shock and haemorrhage as a result of ante mortem injuries. ( 6 ) THE prosecution examined Sulhar (P. W. 1) Kalloo Singh (P. W. 2), Bhanwar Singh (P. W. 3) and siddh Raj (P. W. 4) as eye-witnesses and Isub (P. W. 5 ). Sakhawat (P. W. 6) and Jai Vir Singh (P. W. 8) for motive. Dr. V. P. Singh who conducted the post mortem examination was examined as P. W. 9. The Investigating officer Khem Karan Singh was examined as P. W. 10. ( 7 ) THE appellants pleaded not guilty and claimed that they had been falsely implicated because of their enmity with Jai Vir Singh (P. W. 8 ). The appellants examined Sri Pesh Nawaz Khan, Advocate as D. W. 1 and Ram Pal Singh as D. W. 2. Sri Pesh Nawaz Khan proved the affidavits filed by the eye witnesses Sulhar and Kalloo in which they had stated that they did not witness the occurrence. The Sessions Judge after considering the evidence on record convicted the appellants as aforesaid. Hence this appeal. ( 8 ) WE have heard the learned counsel for the appellants as well as the learned Assistant Government Advocate and have gone through the record carefully. It has been urged on behalf of the appellants that there was no reliable evidence of the participation of the appellants in the crime and yet the appellants have been convicted on flimsy evidence. It has also been argued that the incident occurred at about 1. 00 A. M. in the night. The probabilities are that some culprits committed this crime and ran away and in the morning when the dead body of the victims was traced, Jai Vir Singh (P. W. 8) who has enmity with the appellants, concocted a false story and influenced the witnesses to falsely implicate the appellants. 00 A. M. in the night. The probabilities are that some culprits committed this crime and ran away and in the morning when the dead body of the victims was traced, Jai Vir Singh (P. W. 8) who has enmity with the appellants, concocted a false story and influenced the witnesses to falsely implicate the appellants. ( 9 ) IN this case the prosecution has examined four eye witnesses. They are Sulhar (P. W. 1), Kallo Singh (P. W. 2) Bhanwar Singh (P. W. 3) and Siddh Raj (P. W. 4 ). The first two witnesses, namely, Sulhar and Kalloo Singh had filed affidavits that they had not seen anything regarding this occurrence: It has been rightly argued on behalf of the appellants that the learned Sessions Judge erred in disbelieving D. W. 1 Sri Pesh Newaz Khan, Advocate who had proved the affidavits filed by Sulhar and Kalloo Singh. Sri Khan (D. W. 1) has deposed on oath that he was acquainted with Kalloo Singh from before but Sulhar was introduced to him by Kalloo Singh and Mohammad Iliyas. Sri Khan has deposed further that Ext; Kha-3, the application and Ext. Kha-4, the affidavit filed by Kalloo Singh had been read over to Kalloo Singh by this witness and Kalloo Singh had put his thumb impression on these documents thereafter. Similarly Sri Khan had read over Ext. Kha-1, the application and Ext. Kha-2, the affidavit of Sulhar and then had obtained the thumb impression of Sulhar on these documents. The witness has specifically stated that these affidavits were prepared on the instructions of Kalloo and Sulhar. The learned Sessions Judge disbelieved the statement of Sri Khan (D. W. 1) on the ground that Sri Khan had not stated that Sulhar dictated the contents of the applications and affidavits. This was no sufficient reason for rejecting the testimony of Sri Khan. It is important to note that Sulhar himself had stated in the cross-examination that he and Kalloo Singh had visited the civil courts, Meerut on 11/4/1979 and he had marked his thumb impression on certain papers in the chambers of Sri Pesh Nawaz Khan, Advocate of Meerut. In fact, the statement of Sulhar in cross-examination makes it clear that he is totally unreliable and is concealing facts. In fact, the statement of Sulhar in cross-examination makes it clear that he is totally unreliable and is concealing facts. He has stated that Rishipal appellant was with him when he visited the civil courts and Rishipal told Sulhar that he has to mark thumb impression on certain documents so that Rishipal may be acquitted. If this is believed then the witnesses had agreed to favour Rishipal at that point of time. Sulhar has again changed his statement and has deposed that Rishipal had not told him that if Sulhar does so he would be acquitted. He has, however, deposed that he did not ask Rishipal why his thumb impression were being taken. He admits that before that day Rishipal had never asked him to mark thumb impressions on any documents so that Rishipal may be acquitted nor had Rishipal threatened him earlier. This means that Sulhar did not have any occasion to mark his thumb impression on application and affidavit because of the influence of the appellant Rishipal. Under these circumstances, the statement of Sri Khan (D. W. 1) must necessarily be believed. Similar is the position with Kalloo. Even Kalloo (P. W. 2) has admitted that he had visited Meerut twice for purpose of marking his thumb impressions on certain documents. Kalloo Singh, has, however, tried to explain it away by saying that he was mislea and his thumb impressions were obtained by mis-representation. He could not explain what the misrepresentation made to him. Rather he has deposed that he did not ask the reason for obtaining his thumb impressions. It is also noteworthy that neither Sulhar nor Kalloo Singh came to the Police Station to complaint about the fact that they had been influenced or forced to mark their thumb impressions on certain documents which they never wanted to execute. The statements of suihar and Kalloo Singh discussed above alongwith the statement of Sri Khan, (D. W. 1) clearly indicate that the so-called eye witnesses Sulhar and Kalido Singh had filed affidavits during the investigation of the crime that they had not seen the occurrence at all. It would be very risky to rely on the statements of such witnesses because these witnesses have been proved to be supporting the case for the appellants at one occasion and the prosecution at another occasion. It would be very risky to rely on the statements of such witnesses because these witnesses have been proved to be supporting the case for the appellants at one occasion and the prosecution at another occasion. Sulhar has even gone to the extent of saying that he fears the police as well as the appellants. It cannot, therefore, be ruled out that Sulhar deposed against the appellants because of the fear of the police. In fact, Sulhar has admitted at one stage in cross-examination that after he had related the First Information Report, the Daroga had read it over to him and had asked the influence of the police but he was tutored also to make the statement as per the First Information Report. Even Kalloo Singh (P. W. 2) has been tutored as per his admission in cross-examination that when the Daroga recovered the knife from Guava grove, he kept the knife in his leather bag and told the witnesses that he has to state that this knife belonged to appellant, Ratnoo. We are, therefore, of the opinion that witnesses Sulhar and Kalloo Singh are unreliable witnesses. The next eye-witness Bhanwar Singh Sadhu has been believed by the learned Sessions Judge on the ground that he has become ascetic and he is, therefore, reliable witness but even Bhanwar Singh has himself admitted that he is a tutored witness. He has deposed in paragraph 5 that Daroga Sri R. P. Singh of P. S. Kithore was present in the court at the time of his deposition and he had come with that Daroga to the civil court and the Darogaji had read over the statements to him and the Daroga had instructed him that he had to depose according to that statement. Even this witness is, therefore, a tutored witness and no reliance can be placed on his deposition. P. W. 4 Sidhu Raj Singh did not see the occurrence at all but he only saw the appellants running away from the scene of the crime after the incident. He is a chance witness who was allegedly proceeding towards his fields at 1. 00 A. M. in the night. When asked about the purpose of his visit there he told that he was going to irrigate the field of his uncle. He is a chance witness who was allegedly proceeding towards his fields at 1. 00 A. M. in the night. When asked about the purpose of his visit there he told that he was going to irrigate the field of his uncle. When further cross-examined he slated that his uncle lives separately from him and his agricultural operations are also managed separately. It is difficult to believe that though the fields of his uncle are managed separately yet he was going to irrigate the fields of his uncle at 1. 00 A. M. in the night. His statement was not recorded by the investigating officer shortly after the occurrence but he was interrogated ten or fifteen days after the incident. Even this witness is, therefore, unreliable. ( 10 ) THERE are other attending circumstances also which indicate that the First Information Report was ante timed and was lodged after due deliberation. It has been suggested by the learned counsel for the appellants that P. W. 8 Jai Vir Singh has masterminded the false implication of the appellants in this case. This argument finds support from the fact that P. W. 2 Kalloo has admitted in cross-examination that Jai Vir Singh had come after the murder in the early morning, Even P. W. 3 Mohar Singh has admitted in cross examination that he knows Jai Vir Singh and that Jai Vir Singh had come to the place of incident after the occurrence. It is noteworthy that Jai Vir Singh is a resident of a different village which is far away from the village where the occurrence took place. Even P. W. 1 Sulhar has admitted that Jai Vir Singh used to visit him after this murder and look after his welfare and also made enquiries about the result of this criminal trial. Sulhar has also admitted that Jai Vir Singh had engaged a counsel for prosecution in this case. Even P. W. 1 Sulhar has admitted that Jai Vir Singh used to visit him after this murder and look after his welfare and also made enquiries about the result of this criminal trial. Sulhar has also admitted that Jai Vir Singh had engaged a counsel for prosecution in this case. In this background the statement of Sulhar (P. W. 1) in cross-examination that the Daroga came to the police station at about 10 or 11 P. M. from Caisupur alongwith the dead body and that till then Sulhar and other witnesses remained in the police station without eating anything and that the next morning at about 8 or 9 A. M. , Daroga scribed certain papers and obtained thumb impression of Sulhar and thereafter Daroga gave the copy of the First Information Report to Suihar and then read over the document to him and asked him to make this statement even in future whenever necessary, assumes importance. It clearly appears that after the dead body was brought to the police station, the Daroga prepared the First Information Report on 18/11/1978 at about 8 or 9 A. M. and then obtained the thumb impression of complainant Sulhar (P. W. 1) on that document and then issued a copy of it to him. The First Information Report is, therefore, ante-timed. It was also argued on behalf of the appellants, that fact that the First Information Report was ante- timed finds corroboration from the discrepancies regarding distance of the village where the incident took place from the police station in certain documents. The First Information Report (Ext. Ka. 1) described the distance as eleven and a half miles. The G. D. Ext. ka. 4 describes it as eleven and a half kilometers. The inquest report (Ext. Ka. 13) describes this distance as 12 kilometers and form No. 13 issued by the police in respect to the dead body describes this distance as 10 miles. We find that these discrepancies prima facie indicate that there are chances of the First Information Report having been ante timed and, therefore, these discrepancies occurred in the documents mentioned above. ( 11 ) IT, therefore, follows that the victim was killed during the dead of night when no witness was present. However, when in the morning the murder was noticed, the police was informed. ( 11 ) IT, therefore, follows that the victim was killed during the dead of night when no witness was present. However, when in the morning the murder was noticed, the police was informed. The Investigating Officer came to the scene of occurrence and gathered facts and after due deliberations got the First Information Report prepared through P. W. 1 Sulhar. The very first version of the incident, therefore, becomes doubtful and unreliable. ( 12 ) EVEN the medical evidence differs from the prosecution story set up in the First Information Report. It has been stated in the First Information Report that appellants Rishipal and Sripal fired one shot each from their pistols at the victim. P. W. 1 Sulhar has stated in cross-examination that the shots were fired by pressing the pistol on the chest of the victim. The post mortem report indicates that there were atleast three shots which hit the victim. Injuries No. 2 and 3 may be taker to be the result of one shot. Injuries No. 4 and 5 may be taken to be the result of another shot but injury No. 1 is the result of a separate shot. Thus, the prosecution version that only two shots were fired does not tally with the injuries of the deceased Chhiddeo. This discrepancy has not at all been considered by the learned Sessions Judge. ( 13 ) THE entire fabric of the prosecution version appears to be highly improbable. It is difficult to believe that the murder would be committed only for avoiding a payment of Rs. 200. 00 which is a paltry sum. It is again difficult to believe that the assailants who would normally try to conceal the crime, would first challenge the victim and the witnesses and then fire shots towards the victim and thereafter set fire to the Madaiya so as to attract more witnesses. Again it is improbable that the Madaiya would be set on fire by the two appellants, one by inflaming the Chhappart from eastern side and the other by doing so from the western side. Again it is improbable that the Madaiya would be set on fire by the two appellants, one by inflaming the Chhappart from eastern side and the other by doing so from the western side. Again it is highly improbable that inspite of the assailants who were armed with pistols having challenged the witnesses, the witnesses continued to flash their torches towards the assailants as well as the victim, although, as per the prosecution version, one of the assailants also had a torch which he was flashing at the time of the occurrence. These improbabilities find no explanation in the evidence led by the prosecution to prove the guilt of the appellants. ( 14 ) THERE is one more relevant point which has been argued by the learned counsel for the appellants. There is no injured witness in this case. Hence the presence of the eye-witnesses becomes doubtful. It is a night occurrence. The evidence of motive led by the prosecution is also flimsy and insignificant. Learned counsel for the appellants has, therefore, rightly argued that the prosecution has failed to prove the guilt of the appellants. Therefore, we are of the opinion that the appeal should be allowed and the appellants should be set at liberty. ( 15 ) CRIMINAL Appeals No. 2690 of 1979 and 2689 of 1979 are allowed. The appellants Rishipal, Sripal and Ratnoo are acquitted of the charges levelled against them. They are on bail. They need not surrender. Their bail bonds are cancelled and sureties discharged. .