JUDGMENT G.S.N. Tripathi, J. - This is an appeal under section 378 Cr. P.C. filed by the State of Uttar Pradesh against the judgment and order dated 28.3.1978 passed by the 1st Addl. Sessions Judge, Banda whereby he has acquitted Anis, Sardar, Khalil, Guffar and Sunder Lal under sections 148, 307 and 302 I.P.C. read with section 149 of the I.P.C. 2. The prosecution case started on the basis of a written F.I.R. lodged by Sri Khalik Khan, P.W. 1 at P.B. Mataundh, district Banda at 7.30 P.M. He has alleged that the deceased Ahmad Khan was his brother. He along with the deceased had gone to the fields situate in village Pachpahra. After seeing the fields they were returning home. It was about 3.30 P.M. Near the railway line, at a distance of about one furlong from village Gayara, the accused Anis armed with spear, Sardar, Gaffar, Khalil and Sunder Teli armed with guns, appeared there all of a sudden. Sunder Teli exhorted other accused to kill these two persons. Whereupon Khalil fired on the complainant and his brother, Ahmad Khan deceased was a little ahead. He was hit by the fire shot. The complainant challenged the accused, whereupon Sunder fell fired at him. However, he escaped unhurt and concealed himself in the Jwar fields. Jumman and Fasal also appeared there after hearing the alarm raised by the complainant. The accused after firing shot had also assaulted the deceased with the butt of their guns. After causing injuries to the deceased, the accused escaped. There was an inimity with the accused Sunder Teli and a suit was pending in the Civil Court. Other accused were inimical on account of relationship existing in between them. On account of these causes the accused had murdered the deceased. 3. On the basis of the written F.I.R., Chik report was registered at the police station on 9.11.1976 at about 7.30 P.M. The distance of the police station is about 7 Kms. The case was registered in the G.D. extract of which is on the record. The Investigating Officer had gone out of police station in connection with arrangement in Ram - Lila. The documents were sent to him. He received them at about 11 A.M. and proceeded for the spot. 4. On the spot, he recovered blood-stained and ordinary earth and sealed them and prepared the memos for the same. The Investigating Officer had gone out of police station in connection with arrangement in Ram - Lila. The documents were sent to him. He received them at about 11 A.M. and proceeded for the spot. 4. On the spot, he recovered blood-stained and ordinary earth and sealed them and prepared the memos for the same. A pant and pair of shoes, belonging to the deceased, were also recovered from the spot. They were sealed and a memo was prepared for the same. One fired catridge and a lathi were also recovered from the spot. Search for the accused continued. Their houses were raided but they could not be arrested. At a later stage they appeared in the court. The dead body of the Ahmad Khan was taken into possession by the I.O. and an inquest report was prepared. The dead body was sealed and sent for post-mortem examination. The post-mortem was conducted on 10.11.1976 at 2 P.M. on external examination, the Doctor found that it was the dead-body of well-built person. Rigor mortis was present all over the body. Decomposition had set in except some places on the abdomen. Eyes were closed and mouth was half-open. 5. He found the following ante-mortem injuries on the dead-body:- (1) A gun shot wound of entrance on the left side of the abdomen and at 3 O' clock from 3 places, on the abdomen. (2) A gun shot wound of exit 1 x 1 abdominal cavity on the left side of the back in the middle coming from the midline. (3) A gun shot wound of entrance 3 cm x 2 cm cravial cavity over the left side of the chin 1 cm away from the mid line. Gunshot wound of exit 9-7 cravial cavity in the front of the rt. side of the abdomen 7 cm above the clariak lacerated loosen with small pieces of shell coming out of the wound. (4) A punctured wound 1 (very faint) on the rt. side of the upper lip 1 away from the midline. (5) A lacerated wound 1 x 1 from the middle of the nose. (6) An abraded contusion 3 x 3 cm (faint) on left cheek. In the opinion of the sector, injuries 1 to 4 were caused by some firearm. (4) A punctured wound 1 (very faint) on the rt. side of the upper lip 1 away from the midline. (5) A lacerated wound 1 x 1 from the middle of the nose. (6) An abraded contusion 3 x 3 cm (faint) on left cheek. In the opinion of the sector, injuries 1 to 4 were caused by some firearm. Injury No. 5 was caused by some pointed weapon may be spear, and injuries 5 and 7 might have been caused by some blunt weapon. 6. On internal examination, he found that the stomach contained 200 gms of semi-digested food material. In the opinion of the Doctor, the death was caused by haemorrhage on account of the gunshot injuries. 7. After usual investigation, the I.O. sent the report upon which the case started. 8. The prosecution has examined P.W. 1 Khalil Khan. He has narrated the entire prosecution story as contained in the F.I.R. P.W. 2 Fazal Khan and P.W. 3 Jumman arrived on the spot after hearing the alarm raised by the complainant. They have supported the prosecution story. Other evidence is formal in nature, consisting of P.W. 4 Lakhan Lal, constable. Who took the special report to the higher authorities from the police station. Suresh Prasad Constable Moharir prepared the chik and G.D. report, Constable P.W. 6 Mohd. Haneef took the dead-body for post mortem examination, P.W. 7 Kanhiya Pandey is the Investigating Officer. 9. The accused in the statement under section 313 Cr. P.C. have denied the allegations against them. They have alleged that account of enmity they have been falsely implicated. The accused have led no evidence in de facto. 10. After perusal of the entire evidence, the learned Addl. Sessions Judge came to the conclusion that the prosecution story, as framed, was not correct. He disbelieved P.W. 1, allegedly a witness of fact and discard the prosecution story accordingly. 11. Feeling aggrieved, the State of Uttar Pradesh has filed this appeal. The complainant has also filed a Criminal Revision against the order of acquittal. The appeal as well as the Criminal Revision was heard together. 12. We have heard the learned Addl. Government Advocate at length and gone through the record, find no force in this appeal which deserves to be dismissed. 13. The most important feature of the case is that the complainant was not present on the spot when the occurrence took place. 12. We have heard the learned Addl. Government Advocate at length and gone through the record, find no force in this appeal which deserves to be dismissed. 13. The most important feature of the case is that the complainant was not present on the spot when the occurrence took place. The learned Addl. Sessions Judge has closely examined this point. On the basis of the Statement of the complainant himself, he was the arch enemy of Sunder Teli. He was occupying his house in Banda city. A Civil litigation started by Sunder Teli accused for ejectment of the complainant was pending in the civil court. That is why it is alleged that Sunder Teli had joined other co-accused for committing the murder of the deceased. In fact, he intended to murder the complainant also. Not only this, he took a leading part in the entire episode. According to the prosecution case as contained in the F.I.R., Sunder Teli exhorted other co-accused to murder the complainant as well as his brother but the complainant did not receive even a scratch. It is not said that he ran away from the spot and the accused could not lay their hands upon him. The complainant had also challenged the accused. He had raised the alarm, hearing which Fazal Khan and Jumman witnesses had arrived. 14. In paragraph 6 of his cross-examination, he has admitted that he was concealing himself at a small distance from accused in Jwar field. The height of the Jwar crops was below the waist, therefore, it was not difficult for the accused to spare the complainant and if they really intended to murder him, they could have done so very easily. But no injury was caused to the complainant. That itself shows that he was not present on the spot when the occurrence took place. 15. In paragraph 13, he admits that he could not see as to which accused fired shots. He did not mention it in the F.I.R. that Anis had caused spear injuries. He did not mention this fact to the Investigating Officer. When cornered he gave an evasive reply that he might have told this fact to the Investigating Officer. Really this Statement does not find place either in his statement under Section 161 Cr. He did not mention it in the F.I.R. that Anis had caused spear injuries. He did not mention this fact to the Investigating Officer. When cornered he gave an evasive reply that he might have told this fact to the Investigating Officer. Really this Statement does not find place either in his statement under Section 161 Cr. P.C. or in the F.I.R. This shows that the complainant is a her and was making improvement as and when the exigencies of the case demanded. 16. There was no such occasion for the complainant to have accompanied the deceased for seeing the fields. He has admitted that no crops were ready for harvesting. Then why should the complainant choose to accompany his brother (deceased) for seeing the fields on that day. In the cross-examination in paragraph 8, the complainant admits that his name does not find place in the Kutambh register of the villages in which he alleges that he had his fields. It means that the complainant resides permanently in the Banda city and carries on his legal profession. In village Pachpahra, the complainant had no field in his name. 17. In paragraph 8 in the cross-examination, he admits that on the date of occurrence, the courts in Banda were open. Then the question arose as to why did he leave the Court. He gave an easy reply by saying that since he had no work on that date, therefore, he chose to leave the Court. It is difficult to believe. Not only this when cornered he gave another imaginary story that his mother was reported to be indisposed, therefore he came back to see her. This statement does not find place in his statement under section 161 Cr.P.C. or the F.I.R., therefore, this reply is totally artificial and we refuse to believe this Statement. 18. The panchayatnama and other relevant documents were allegedly prepared by the Investigating Officer in presence of the complainant and two other witnesses, namely Jumman and Fazal Khan but they did not choose to sign. 19. The most important feature of the case is that the complainant was not present on the spot when the occurrence took place. The learned Addl. Sessions Judge has closely examined this point. On the basis of the Statement of the complainant himself, he was the arch enemy of Sunder Teli. He was occupying his house in Banda city. 19. The most important feature of the case is that the complainant was not present on the spot when the occurrence took place. The learned Addl. Sessions Judge has closely examined this point. On the basis of the Statement of the complainant himself, he was the arch enemy of Sunder Teli. He was occupying his house in Banda city. A Civil litigation started by Sunder Teli accused for ejectment of the complainant was pending in the Civil Court. That is why it is alleged that 'Sunder Teli had joined other co-accused for committing the murder of the deceased. In fact, he intended to murder the complainant also. Not only this, he took a leading part in the entire episode. According to the prosecution case as contained in the F.I.R., Sunder Teli exhorted other co-accused to murder the complainant as well as his brother But the complain-ant did not receive even a scratch. It is not said that he ran away from the spot and the accused could not lay their hands upon him. The complainant had also challenged the accused. He had raised the alarm, hearing which Fazal Khan and Jumman witnesses had arrived. 20. In paragraph 6 of his cross-examination, he has admitted that he was concealing himself at a small distance from accused in Jwar field. The height of the Jwar crops was below the waist, therefore, it was not difficult for the accused to spare the complainant and if they really intended to murder him, they could have done so very easily. But no injury was caused to the complainant. That itself shows that he was not present on the spot when the occurrence took place. 21. In paragraph 13, he admits that he could not see as to which accused fired shots. He did not mention it in the F.I.R., that Anis had caused spear injuries. He did these documents. Neither the complainant nor two other witnesses have any reply for this important omission. This also leads us to believe that none of them was present at the time of occurrence or even at the time when the Investigating Officer visited the spot and prepared the documents. 22. The complainant further admits in paragraph 23 that he could not tell as to which one of the accused fired shots except Sunder. This also leads us to believe that none of them was present at the time of occurrence or even at the time when the Investigating Officer visited the spot and prepared the documents. 22. The complainant further admits in paragraph 23 that he could not tell as to which one of the accused fired shots except Sunder. It seems that he was not in a position to see the occurrence with his own eyes. He has been rightly disbelieved by this lower Court. 23. P.W. 2 Fazal Khan, and P.W. 3 Jumman were totally chance witnesses. They too had no reason to be present on the spot on that day and become All of a Sudden an idea cropped in their minds that they should go to their fields although there was no special occasion for the same. 24. For the reasons stated above, we find that even these witnesses were not present when the occurrence took place. 25. P.W. 2 Fazal Khan stated in paragraph 3 that the accused continued assaulting for about 4 minutes. The accused were 5 in number whereas only 7 injuries were caused. It seems that the occurrence took place for hardly 1 minute or half. These witnesses had to admit in paragraph 3 that there was no special reason for them to go to the fields on that date. Further, he could not say as to why he did not sign the documents which were prepared allegedly in their presence by the Investigating Officer. 26. A similar statement has been made by P.W. 3 Jumman also. 27. Learned Addl. Sessions Judge has thoroughly examined the testimony of all these witnesses and has drawn a correct conclusion that they were not present on the spot. 28. An important feature of this case is that the special report in this case was sent by the Police Station on the following day. The explanation for this delay, as has been given by the prosecution, is that as there were no means available for moving from the police station to the Head Quarters, therefore, the special report was that on the following day. But the fact is otherwise. The explanation for this delay, as has been given by the prosecution, is that as there were no means available for moving from the police station to the Head Quarters, therefore, the special report was that on the following day. But the fact is otherwise. The vehicle along with some police Constables, on receipt of telephone message started from the District Head-Quarters Banda and reached the police station in the same night and after that their vehicle returned to the Head Quarters in the same manner. It means that if the F.I.R. had been registered at the time, as alleged, the special report could have been easily sent through the Head Constable who has come from the Head Quarter. But this was not done. We fail to appreciate the reason for this omission on the part of the prosecution. This loads us to believe that the F.I.R. was not recorded at 11.30 P.M. on 9.11.1976 as the information regarding the occurrence reached the police station on the following earning. Thereafter the police machinery was geared up and a case like this was started. Hence this special report was sent on the next day. 29. We have scanned the evidence very intensively. He have also examined the reasons given by the learned Addl. Sessions Judge for disbelieving the prosecution story. We agree that the reasons given by him are sound and there is no reason to differ from the conclusions arrived at by the learned Addl. Sessions Judge. 30. Accordingly, the appeal as well as the criminal revision are dismissed. The judgment and order of the learned Civil Court is maintained 13.7.1992.