JUDGMENT 1. - These appeals are directed against the judgment dated 13th of June, 1990 passed by the learned Sessions Judge, Dholpur, in sessions case No. 211/1988, whereby he convicted accused appellant, Jagman, of offence under Section 302 IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs. 500/- (Rupees five hundred), in default of payment of fine, the appellant was directed to further undergo six months' RI. He also convicted accused appellant, Lohre, of offence under Section 302/34 IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs. 300/- (Rupees three hundred), in default of payment of fine to further undergo three months' RI. Both the accused challenged their conviction and sentence by filing appeal No. 260/1990, while accused, Jagman, also sent an appeal through jail authorities which has been registered as appeal No. 281/1990. Both these appeals have thus arisen out of the same judgment and are disposed of by this Court by a common judgment. 2. A report (Ex.P/6) was lodged at police station Sadar Dholpur, on 27th of December, 1987 at 10.30 a.m. by Jandail (PW-5) wherein it was alleged by him that six years before brother of Kaptan was killed in a police encounter and his brother-Banwari had escaped in that encounter. On which, Kaptan had told him that he had returned after killing his brother. On this issue, Kaptan and Prakash (both brothers) had animosity with his family. On the previous night, at about 8.30 p.m., when he and his brother-Banwari had taken meals; Banwari went out of passing urine and while he was returning, Lohre fired a shot by 12-bore pistol (katta) on his chest. At that time, Ram Dayal S/o Tulsi, Kaptan and Prakash S/o Babu, were also present. In the house all these three persons exhorted and told Lohre that Banwari should be killed. On receiving the fire shot, Banwari fell down and then went in the room. He became unconscious. At that time Ram Niwas S/o Banwari's brother in law, Chirmoli, Kashi, his mother- Koka and his wife-Shanto were also present in the house, who had seen this occurrence. Thereafter, the members of the complainant party started for hospital taking their injured brother on a cot. On the way, all the five aforesaid persons again surrounded them and asked to place the cot on the ground. Thereafter, the members of the complainant party started for hospital taking their injured brother on a cot. On the way, all the five aforesaid persons again surrounded them and asked to place the cot on the ground. On which, they lowered down the cot. Jagman, thereafter, fired two gun shots on Banwari and told that they would not permit the dead-body to be taken away. After some time, the accused went of; they brought Banwari at home who had already expired. On receipt of this report, a case for offence under Sections 147,148,149,302, 341 and 120-B, IPC was registered and investigation was commenced. Police arrived at the spot and the Investigating Officer (Shri Deep Chand Gautam, PW-9) made an inquest report and prepared a site plan and a site inspection memo. He got the post-mortem of the dead-body conducted and recorded the statement of certain witnesses. He, after completing investigation, submitted a charge-sheet against accused persons - Kaptan, Lohre, Prakash, Ram Dayal and Jagman in the Court of Additional Munsif & Judicial Magistrate, Dholpur who committed all the five accused to sessions for trial. Police, however' did not find a case established for conspiracy, therefore, the commitment was made for offence under Sections 147, 148, 149, 302 and 302 read with Section 34 IPC. The learned Sessions Judge, after hearing arguments on charge, discharged the accused, Ram Dayal, Kaptan and Prakash of offence under Sections 302, 120-B, 147 and 149 IPC. He, however, framed charges against accused, Lohre and Jagman, for offences under Sections 302 and 302/34 IPC. Accused pleaded not guilty to the charges and claimed to be tried. 3. Prosecution examined as many as 13 witnesses in support of its case of whom Jandail (PW-5), Ram Niwas (PW-4), Mst. Shanto (PW-12) and Mst. Koka (PW-13) as eye witnesses of the case. Besides them, one Chirmili (PW-1) was also examined but he was declared hostile. Accused denied the occurrence and stated that Banwari was rascal who had enmity with several persons and had committed edacities and somebody killed him due to enmity but they (accused) have been named because there is a bad blood between the families. Accused examined three witnesses in their defence who are the three accused since discharged. Accused denied the occurrence and stated that Banwari was rascal who had enmity with several persons and had committed edacities and somebody killed him due to enmity but they (accused) have been named because there is a bad blood between the families. Accused examined three witnesses in their defence who are the three accused since discharged. The learned trial Court acquitted accused, Lohre, of offence under Section 302 IPC, but convicted him of offence under Section 302 read with Section 34 IPC and also convicted accused, Jagman, of offence under Section 302 IPC, simplicitor and sentenced them as indicated above. Challenging their conviction and sentences, these appeals have been preferred. 4. In these appeals, it is contended by Mr. S.K. Jain, appearing on behalf of the appellants, that apparently it appears to be a cold-blooded murder but if the evidence is scanned properly then there is no legal and cogent evidence to connect the accused with the crime. It is submitted that starting from the beginning, though, the incident took place at 8.30 p.m. in the night, yet, the report had been lodged at 10.30 in the morning at a police station, which is hardly six kilometres and within a cycling distance of half an hour duration. His submission is that, in fact, the report is ante-dated and ante-timed because this report which is alleged to have been lodged at police-station Sadar at 10.30 in the morning on 27th of December, had taken six days to travel at distance of a couple of kilometres i.e. to the Court of Additional Munsif & Judicial Magistrate, Dholpur. It is contended that the prosecution has changed its story from time to time. Initially, they came with the motive and storied that deceased Banwari had participated in dacoity with Shiv Charan (elder brother of Kaptan) who is alleged to have been killed in a police encounter but Kaptan suspected that Shiv Charan had been killed because of Banwari and, therefore, he and Parakash (both brothers) wanted to kill him. However, no revenge had been taken for a period of six years, thus, it is submitted that they changed the motive that Lohre's wife was seized by Banwari and it was for this reason that Lohre alongwith Jagman killed Banwari. However, no revenge had been taken for a period of six years, thus, it is submitted that they changed the motive that Lohre's wife was seized by Banwari and it was for this reason that Lohre alongwith Jagman killed Banwari. It is then submitted that in the first information report the complainants-came with a story that after the complainants have taken their meals; Banwari went out of passing urine and when he was returning, Lohre came suddenly and fired of him and the other accused at that time exhorted, while the case set up before the Investigating Officer was that the deceased alongwith his bother-Jandail and accused-Lohre and Jagman were taking liquor and were warming themselves in the cold night in the month of December while sitting around the urn (chulah). Thus, story further put up is false that Banwari had went out for passing urine and as soon as he returned and stayed at the side of Lohre he fired at him. It is submitted that thereafter the story is that they waited for a couple of hours for taking the deceased to hospital and while they were taking him to the hospital; on the way, the accused persons way-laid them and asked to bring down the cot, on which the complainant party went on one side living Banwari and accused-Jagman after removing the quilt; twice fired at him from a close range and as a result of which he died at the spot. Again, there is a change in version and it is submitted that according to first information report the complainant party brought the cot back to the home but as per the case, set up later on, the deceased was dragged up to the house by two ladies, namely, Mst. Shanto and Mst. Koka. The contention of the learned counsel is that though it is a cold-blooded murder, yet, the circumstances are highly suspicious and the genesis of the story has not been pul forward inasmuch as there are contradictions about accused-Lohre coming to the house of the deceased as, according to one story, he was already there and consuming liquor, while according to the subsequent version he came from out side to inside the house and fired. It is submitted that it has not been shown by the prosecution as to where from he brought the `katla' if he was already sitting there and no effort has been made by the Investigating Officer to recover the one. It is also submitted that the prosecution story of repeated fire inside the house and two shots on the way is not corroborated by the circumstantial evidence because no pellets or empeties have been found either in the `chowk' or on the way where Jagman is alleged to have fired. It is further submitted that' prosecution has also failed to bring out the evidence that there was some time gap between the first fire and the second fire because had they been two intervening hour between the two shots fired. The blood which oozed out from the first injury ought to have been dried and would have shown different colour than blood which oozed out subsequently alter two hours. It is further contended that the trial Court has failed to take into consideration that the principle accused in the case, according to the prosecution, was Kaptan who had an enmity with Banwari. It was he (Kaptan) who along with Prakash, who exhorted, should ask Lohre to fire at Banwari but he has been discharged and Lohre has been convicted for the offence under Section 302/34 IPC, simplicitor. It is submitted that the findings arrived at by the learned Sessions Judge are self-contradictory and are based on surmises and conjectures inasmuch as it distinguished between the cases of the two accused on hypothetical grounds. 5. Mr. Gopal Bhargava, appearing on behalf of the State, submitted that there is no infirmity in the judgment of the trial Court and in this case there are as many as four eye-witnesses who have supported the prosecution story. His contention is that there could be no outsider witness at 8.30 p.m. inside the house when the incident took place and, therefore, inmates could narrate as to what happened at that point of time. It is submitted that the sequence of events intact that it could be none else than accused, Lohre and Jagman who had committed the murder of Banwari. It is submitted that the sequence of events intact that it could be none else than accused, Lohre and Jagman who had committed the murder of Banwari. His submission is that prosecution has brought out the evidence from the very beginning that Kaptan and Prakash had animosity with deceased Banwari and for this reason the murder had taken place and if Kaptan and Prakash were the alleged enemies then what prevented them to have named Prakash and Kaptan as murderer instead of Lohre and Jagman. There was no enmities with these two persons and the prosecution witnesses have told the truth as what ever had happened. It is submitted that minor contradictions have no meaning in a case like the present one where there is overwhelming evidence as many as four eye witnesses who have seen Lohre firing at deceased Banwari. It is submitted that the evidence is consistent that the deceased had gone for passing urine and while he returned in the `chowk', Lohre fired at him as a result of which he sustained injury and became unconscious. It is contended that it is regrettable that three of the accused have been discharged in the case despite the fact that there was sufficient evidence against them, at least, to have framed the charges but that discharge should not in any way effect the finding of guilt against the present two accused. Legally speaking also, it is submitted that since the prosecution evidence is that murder took place after Jagman fired, it could not be said, as to whether deceased could have died as a result of the injuries caused by Lohre and, therefore, he has rightly been acquitted of offence under Section 302 IPC, simplicitor. 6. We have given our thoughtful consideration on rival submissions and have perused the entire record. 7. This case presents extra-ordinary features and has placed a dilemma before this Court, as on one side there is the evidence of four eye-witnesses and on the other side the circumstances are such that chances of false implication cannot be ruled out. The motive has been suppressed, for reasons best known, the prosecution witnesses have frequently changed their versions about the motive and the genesis of the story. Their testimony requires to be scanned and closely scrutinised along with the other circumstances which assume importance. 8. The motive has been suppressed, for reasons best known, the prosecution witnesses have frequently changed their versions about the motive and the genesis of the story. Their testimony requires to be scanned and closely scrutinised along with the other circumstances which assume importance. 8. The first information report in this case is a written document, yet, the scribe is not known to the Court. It has been lodged after ten hours of the incident, when the police station is at a distance of six kilometres and it is admitted that there is a frequent traffic of rickshaws and tempos between the place of incident and police station. They are so close places that even if one goes on cycle it will take maximum half an hour. This report, which has been lodged on 27th, has unfortunately taken six days to travel to the court of the learned Magistrate when the distances is hardly a kilometre. No reasonable explanation has been coming forth for this inordinate delay in lodging the report or in dispatching the same to the concerned Magistrate. The investigating officer, who prepared the site plan (Ex.P-7), has, unfortunately, not shown the presence of any marks of fire at cither of the two places where Banwari is alleged to have been fired at. The investigating officer has also not shown, for reasons best known, the places where the witnesses were present inside the house. This assumes importance in view of the fact that the prosecution case is that drinks were being taken inside the house in kitchen while sitting around the `chulah', where Mst. Shanto and Mst. Koka were also alleged to be present. It may be mentioned here that the story of Lohre and Jagman taking drinks with deceased- Banwari had been given a complete go at trial and instead they have been shown outside the premises from the very beginning. It is in this light that we would like to reproduce the evidence which has come on record. Chirmoli was an eye witness in this case but he has been declared hostile and we are left with the statement of Ram Niwas (PW-4), Jandail (PW-5), Mst. Shanto (PW-12) and Mst. Koki (PW-13). 9. It is in this light that we would like to reproduce the evidence which has come on record. Chirmoli was an eye witness in this case but he has been declared hostile and we are left with the statement of Ram Niwas (PW-4), Jandail (PW-5), Mst. Shanto (PW-12) and Mst. Koki (PW-13). 9. Ram Niwas (PW-4), in his examination-in-chief, slated that his father's sister married in this village and he often use to visit his paternal aunt's place and this is how he happened to be there on that day also in the village; in other words, he is a real brother-in-law's son of deceased-Banwari. He is eighteen years of age. He stated that at about 8.30 in the night Jandail, Shanto, himself, Banwari and Banwari's mother-Koka were in the house. Koka was warming herself with fire and they were also sitting nearby. On that day, Jagman, Lohre, Kaptan, Prakash and Ram Dayal came to the house of Banwari. At that time they had already finished off their meals. Banwari went out side for passing urine and when he came inside the house; Ram Dayal, Prakash and Kaptan told Lohre that Banwari should be finished. On this, Lohre, who had a 12-bore `katta' in his hand, fired at Banwari which hit on his chest. Thereafter, Jagman and Lohre went out after firing. According to him, Jagman also fired but before firing he told Lohre that Banwari should be killed. He stated that Banwari fell down in his room and became unconscious. Hearing that, Kalicharan came. After two hours, he alongwith Shanto, Kalicharan and Jandail were carrying Banwari to hospital. When they reached Bachna's house; all the five accused - Lohre, Jagman, Prakash, Ram Dayal, and Kaptan again met them. Jagman told that he would not permit them to go. Thereupon, they lowered down the cot there and went on one side. Jagman, thereafter, removed the quilt and fired at Banwari. Thereafter, all the five left the place. He stated that he does not know the motive of this murder. In cross-examination this witness was confronted with the portion where he has not slated his presence in the `chowk' but added that Chirmoli was also with them at that point of time. According to him, Lohre had fired out side the room and it was only at a four paces distance from the fire place. In cross-examination this witness was confronted with the portion where he has not slated his presence in the `chowk' but added that Chirmoli was also with them at that point of time. According to him, Lohre had fired out side the room and it was only at a four paces distance from the fire place. He was confronted with the distance, part of statement of police to which he denied. When he was confronted as to whether Santo was there at the time of incident, or not, he admitted that they were inside their room and though he gave out the story of Santo sitting with them at the fire place and so also Mst. Koka. According to him, all the accused had entered inside the house. This witness has been cross-examined about the topography of the house to which he has faulted at some places, however, that is not very material. He has admitted that his village is about nine `kos' (18 miles) from the place of occurrence. He then admitted that Santo was in one room and he was in a different room. He admitted that he was sleeping in a room where Banwari had come after having been injured. He also admitted that at the time when Banwari came in the room and fell down; he was already sleeping on a cot. This witness is having very close relations being son of the brother-in-law of the deceased, and happens to be a chance witness and this does not inspire confidence because he has given a different story about the place of sleeping and starting of the incident, one and the major contradiction in his statement is his admission about his sleeping inside the room when Banwari after receiving injury came and fell down on the cot. In case his statement is true, then his story of all the five sitting around the fire place becomes a false story. It appears that he is a young boy of 18 years of age. It has been made to show what is in examination-in-chief, he could not stand in the cross-examination. We are, therefore, unable to place any reliance on his statement. 10. Jandail (PW-5) is real brother of the deceased. According to him, when his brother returned home after passing urine; at that time Jagman, Lohre, Kaptan, Ram Dayal and Prakash met him outside the house. We are, therefore, unable to place any reliance on his statement. 10. Jandail (PW-5) is real brother of the deceased. According to him, when his brother returned home after passing urine; at that time Jagman, Lohre, Kaptan, Ram Dayal and Prakash met him outside the house. Lohre was armed with a `katta' and Jagman with a gun, and rest were empty handed. When Banwari came outside the room then Ram Dayal, Prakash, Kaptan and Jagman told him to come near them. On which, Banwari turned towards them and it is at that time that Lohre came inside the door and fired at him. According to him, Lohre fired from a distance of two to three cubits. According to him, Banwari immediately became unconscious and fell down on the ground. He then got some senses, got up and went inside the room and fell down on a cot. According to him, inside and outside the house there a light in which he, Ram Niwas, Santo and his mother had seen the occurrence, while they were sitting near the fire place. He then stated that when he was near the fire place he lighted a torch and in that light he saw Jagman, Lohre, Ram Dayal, Prakash and Kaptan running away. He stated that they shouted that they would not leave Banwari alive. After two hours when he was taking Banwari to hospital, the accused way-laid at them got the cot place on the ground and Banwari was killed by Jagman. He told the motive that Shiv Charan, brother of Kaptan and Prakash, was killed in a police encounter about seven and half years before. He gave an explanation that he did not go to lodge the report in the night because he was afraid, and he had lodged the report in the next morning. This witness has been croks-examined at great length. According to him, Lohre and Jagman are real brothers and are staying at a distance of two to three houses from his house. He admitted that there is no enmity of Lohre and Jagman with him or Banwari. On the contrary, they used to visit their places very frequently. He has shown ignorance about a criminal case against Banwari regarding the earlier police encounter. Witness when asked whether the accused already in the house before the incident, he denied but stated that they were wandering in the village. On the contrary, they used to visit their places very frequently. He has shown ignorance about a criminal case against Banwari regarding the earlier police encounter. Witness when asked whether the accused already in the house before the incident, he denied but stated that they were wandering in the village. He denied the suggestion that he, Jagman, Lohre and Banwari had taken drinks on that day. He then gave an evasive answer and stated that he does not know whether Jagman brought wine, or not. He then again changed the statement and stated that Jagman had not come to his house nor he had taken drinks. According to him, at the time of occurrence they were sitting near the urn (chulah). According to him, it was a moon-lit night and there were lamps also. He stated that when Banwari called out, they learnt that accused had come. According to him, he had seen all the five standing, out of whom Lohre came in the middle of the gate and Ramdayal, Prakash and Kaptan had exhorted from behind. He identified the persons standing out side the house because the lamp was burning out side the house. According to him, there was no light in the room. He stated that the report was dictated by him when the post-mortem was being conducted. According to him, the police had already reached the village at 10.30 a.m., and the report was got dictated in the noon, which was got dictated in the hospital. He stated that he had taken the police to the village before lodging this report at 10.30 a.m. though he had arrived at the police station at 8.30 in the morning but no report was taken down at that point of time nor he had given in writing. The witness was confronted with various parts of statement which was recorded by the police and in the first information report about the omissions which are there in his statement, he stated that though he has stated in the statement of police but the same does not find place there. He could not explain as to why he has not mentioned that Ram Niwas was one of the person who were carrying the cot on which injured Banwari was lying. He could not explain as to why he has not mentioned that Ram Niwas was one of the person who were carrying the cot on which injured Banwari was lying. He also could not explain as to why the name of Jagman was not there in the first part of the first information report which he had lodged. He also stated that he had not said so in the statement before police that Jagman had opened two fires, after removing the quilt. He denied the suggestion that he has been falsely implicated because his brother was a dacoit and he had the enmity with the accused persons. We will comment upon the statement of this witness after discussing the statement of Mst. Santo (PW-12) and Mst. Koka (PW-13). 11. Santo (PW-12) is widow of deceased-Banwari who had given an identical 1 statement in the examination-in-chief. However, in cross-examination, she stated that she had heard that Shiv Charan had been killed. She then admitted this also to be correct that her husband had escaped in police encounter but Shiv Charan was killed and Shiv Charan being brother of Kaptan, he had enmity with Banwari. According to her, she was cooking food at the time of incident and her mother-in-law was sitting by her side. She stated that she was cooking meals in a room but in open at a place which is about 20 to 25 ft. away from the room. Then she stated that she was cooking meals in a `chhappar'. She was confronted that she had not slated about cooking meals in her police statement to which she has stated that she has slated so in the police, though police might not have written it. She admitted that after her husband was hit by gun shot, she and her mother-in-law had gone in the room. She had given a statement in the police that Jagman and Lohre before the incident were taking drinks with Banwari and Jandail prior to the incident. She denied the suggestion and stated that she has not said so in her police statement. She has also denied other parts of per police statement with which she was confronted, such as, according to her, Ram Dayal was reading a book lying on a cot at the time of the incident. She stated that she has not given the statement to the police. She has also denied other parts of per police statement with which she was confronted, such as, according to her, Ram Dayal was reading a book lying on a cot at the time of the incident. She stated that she has not given the statement to the police. Her statement which she has given in the Court at trial about exhortation and Jagman's calling Banwari was not there in the police statement to which she was confronted, she has stated that she has said so but she cannot give reason as to why it has not been mentioned in the police statement. According to her, it was a dark night at 8.00 p.m. and also admitted that Banwari had no enmity with Jagman and Lohre. According to her, her husband has been got murdered by Kaptan, Prakash and Ram Dayal. She stated that prior to her marriage; Banwari's another wife had died, she however, pleaded ignorance that Banwari's first wife was murdered. She admitted that after her marriage, Banwari remained in jail for two or three months but in what case she does not know. She denied the knowledge of Banwari's being involved in other dacoity cases. 12. Mst. Koka (PW-13) who is mother of the deceased and is about 60 years of age, gave an identical statement in examination-in-chief. She was confronted with her police statement (Ex.P.-12) wherein she has stated that Banwari and Kaptan's brother Shiv Charan used to leave together and both used to commit thefts. Both of them had gone together when they had an encounter with police where Banwari escaped but Shiv Charan died. On which, Kaptan (brother of Shiv Charan) had levelled allegation against Banwari that it was he who had murdered Shiv Charan and handed his body over to the police. She denied to have given the statement to the police. She stated that she has not even told the police as to how Shiv Charan had died. Her case, in police, was that she was lying on a cot in the shade out side, which statement also she has denied and stated that she has not given this statement to the police. There is no mention of Kaplan's exhorting in her police statement with which part also she was confronted and she has alleged to have given any statement in that respect. There is no mention of Kaplan's exhorting in her police statement with which part also she was confronted and she has alleged to have given any statement in that respect. She had also come with a case before the police that Lohre and Jagman had taken drinks with deceased Banwari and Jandail in her house and it was at that point of time that Banwari has been killed by Lohre's `katta', to which statement she gave a complete go by at trial. She slated that she has not given any such statement in the police. She, however, slated that she had told the police that Lohre had fired the pistol with which Banwari sustained injuries on the left side of his neck and below the eye. She stated that this part is missing in her police statement and she cannot give out the reason for the same. She has also given inconsistent statement about exhortation. She stated that when Lohre had fired; pellets had also hit the door of her house. She stated that nobody from the village came despite the gun shots' sound having travelled in the village. She has denied the suggestion that Lohre and Jagman were not the persons who had killed Banwari. She stated that she cannot say whether the night was dark or moon-lit. 13. Apparently, the statement of all the three aforesaid eye witnesses appears to be identical as they have stated with one voice that Lohre fired at the deceased inside the `chowk' and thereafter Jagman gave another firearm injuries when they were taking the injured to the hospital after two hours by stopping them in the way but when closely scrutinised no doubt remains that the witnesses arc trying to suppress the truth about the genesis of the incident. It is an admitted case of all these three witnesses that there was no enmity of Lohre and Jagman with deceased-Banwari. They have come with a positive case before the police that both of them had come earlier to the incident and were already taking drinks at the residence of the deceased and they did consume wine along with Jandail (PW-5) but for reasons best known they have given a complete go-by to that story and stated that they had not narrated to the police about taking their drinks. This is a very important infirmity in the case because in the case the story of taking drinks at the residence of the accused was true then there is not hing to suggest as to how the arm came in possession of Lohre and Jagman. It is unfortunate that in this case there is absolutely no recovery of any type of weapon of offence or the empties or the pellets which might have been embodied in the walls or in the door of the house of the deceased, and also no pellets have been found in the place where Jagman is alleged to have stopped the complainant party from taking the injured to the hospital. It is admitted by the Investigating Officer that in this case there was no recovery of any incriminating article against any of the accused persons. He, however, stated that one gun was recovered from accused-Jagman at the time of his arrest but that recovery has neither been made in this case nor is connected with the crime. Thus, we are unable to arrive at a definite finding as to from where Lohre and Jagman came at the time of the incident and from where they got arms. Ram Niwas, according to himself, was inside the room which is corroborated by the statement of Mst. Santo also that he was reading at the time of the incident but at trial surprisingly all the four witnesses have made out a story that all of them were together near the fire place when the incident took place. Even when we scrutinise the statement of Mst. Koka, according to her earlier statement, she was sleeping on a cot at a different place at that point of time. It is also surprising that Mst. Santo has come out with a case that she was cooking meals at the time of the incident and all the other members of the family were sitting around her while at the other place, the case of the prosecution is that everybody had taken meals when the incident had taken place. If meals had already been taken, there is nothing to suggest from whom Mst. Shanto was still cooking the meals at that place. If meals had already been taken, there is nothing to suggest from whom Mst. Shanto was still cooking the meals at that place. Similarly, there is a difference in the statement of the witnesses about the distance from which the fire had been made, as according to one witness, it was from two to three ft., while according to the another witness, it was 8 to 10 ft. There is yet another contradiction in the statement of the witnesses about the light. Two witnesses said that it was a dark night when the other two says that it was a moon-lit night. Then they say that a lamp was there; both inside and outside. We can understand about a lamp which lit inside but there was no occasion of a lamp putting outside the house at a distance of about 20 to 25 ft., and we have reason to infer so because no lamp or a place for hanging the lamp has been shown in the site plan from where the light might be coming. It appears that because the prosecution came with a case that it was Lohre who entered the shed at the time of firing and so the witnesses were told to speak that they identified the other persons standing the outside because a lamp was there. The fact of lamp's being lit have not been mentioned in the police statement with which they have been confronted. As we have already staled that the statements of the above four eye witnesses require close scrutiny and we find that it will be too risky and venturesome to maintain conviction on their statements. More particularly, in view of the fact that the arch enemies of the family i.e. Kaptan and Prakash have been discharged and the State Government did not choose to file an appeal against the order of discharge which had become final as early as 8.2.1989. In fact, the complexion of the ease is changed totally because of the discharge of the three accused persons and possibly it was for this reason that the story was sought to be changed at the stage of trial. It may be stated that in the aforesaid circumstances, we have also to consider the delay in lodging the first information report. Admittedly the incident took place at 8.30 in the night followed by another incident at 10.30 p.m.. It may be stated that in the aforesaid circumstances, we have also to consider the delay in lodging the first information report. Admittedly the incident took place at 8.30 in the night followed by another incident at 10.30 p.m.. but the F.I.R. has been lodged at 10.30 a.m. next morning when the distance up to the police station is only 6 kms. According to the statement of Jandail (PW-5), who had lodged the report, has stated that he arrived at the police station at 8.30 a.m. and the police accompanied him and arrived at the village, i.e. the place of incident at 10.00 a.m., yet neither any entry in the Rojnamcha nor anything to indicate that earlier to reaching of the police in the village any report has been made, is not known. On the contrary, the version of Jaindail is that the report was taken down simultaneously when the post-mortem was being conducted on the corpse of deceased Banwari. He categorically has denied that he arrived at the police station with the written report, as is now the prosecution ease. This infirmity becomes all the more serious when we find that this report has not been despatched to the court of concerned Magistrate for six days. This inordinate delay is a serious lapse on the part of the investigating officer, is unexplainable and results in creating the doubt about the fair investigation when it is looked in from the point of view that the statement of Ram Niwas, an alleged eye witness, was only recorded subsequent to despatch of this report, i.e. after six days. 14. The cumulative effect of changing of the version about Lohre and Jagman's taking drinks with the deceased since before a couple of hours of the incident with considerable improvements in the prosecution story from what it was at the time of filing the charge-sheet and the lacunc left at the stage of investigation, leads us to infer that there arc blurred areas in the prosecution ease which cast the serious doubt about the correctness of the prosecution story. 15. We have already stated above that apparently this case appears to be a good case for prosecution but on careful scrutiny of the evidence we are constrained to observe that for reasons best known to the prosecution agency itself has presented circumstances which have created serious doubts. 15. We have already stated above that apparently this case appears to be a good case for prosecution but on careful scrutiny of the evidence we are constrained to observe that for reasons best known to the prosecution agency itself has presented circumstances which have created serious doubts. We are at a lose to understand as to how the arch enemy of the deceased Kaptan whose involvement has been shown in the ease from the very beginning, was discharged with two other important accused and no revision had been filed against that order. We have perused the order of discharge which is contained in the order-sheet dated 8.2.1989 which order is absolutely cryptic and unreasonable, but it is too late in the day that anything can be done about the same, more so, when the witnesses have completely changed their statements resulting in consequential change in entire prosecution story. We arc unable to appreciate how in the absence of Kaptan and others Lohre and Jagman, who, according to the initial story, were taking drinks with the deceased and were unarmed, suddenly came in possession of the arms and committed murder of deceased Banwari more particularly when Lohre and Jagman had no enmity with the deceased. 16. We arc conscience that a cold blooded murder is likely to go unpunished but we are equally mindful of the law laid down by their Lordships of the Supreme Court in Sharwan Singh v. State of Punjab ( AIR 1957 SC 637 ) wherein their Lordships have observed "there is element of the truth in the prosecution story against the appellants, but considered as a whole the prosecution story may be true, but `may be true' and `must be true' there is inevitably a long distance to travel and whole of this distance must be covered by legal, reliable and unimpeachable evidence." Judging in the light of the aforesaid observations made by their Lordships of the Supreme Court we are firmly of the opinion that the prosecution has failed to establish its case by legal, reliable and unimpeachable evidence and the accused appellants are entitled to benefit of doubt which we extend to them. 17. As a result of aforesaid discussion, the appeals No. 260/1990 and 281/1990 (jail appeal) are allowed. Judgment of the learned Sessions Judge, Dholpur, dated 13th June, 1990 is set aside. 17. As a result of aforesaid discussion, the appeals No. 260/1990 and 281/1990 (jail appeal) are allowed. Judgment of the learned Sessions Judge, Dholpur, dated 13th June, 1990 is set aside. Conviction and sentences awarded to the accused appellants (Jagman and Lohre) are also set aside and accused are acquitted of all the charges. The accused are in jail and they shall be released forthwith, if not, required in any other case. *******