G. D. DUBE, J. ( 1 ) SHISUPAL and Om Prakash have filed an appeal against the judgment and order of Sri. O. P. Saxena, the then Session, Judge, Bulandshahr, convicting and sentencing each of them under Section 302 read with Section 34, I. P. C. to imprisonment for life. The two appellants are brothers. ( 2 ) THE prosecution case is that at about noon on 23. 9. 1976, the appellants had ploughed the Mend of the field of Pratap Singh situated in village Ram Bas, P. S. Shikarpur, district Bulandshahr. Pratap Singh, father of Moti Singh, had objected to this act of the appellants. An exchange of hot words had taken place between Pratap Singh and the appellants. At about 6. 00 p. m. on the same day, Pratap Singh was going from his Gher to his Bara in the aforesaid village when Shisupal armed with a licensed gun and Om Prakash armed with a knife, surrounded Pratap Singh. Shisupal said to Pratap Singh that he was finishing him. He opined fire from his gun which caused injuries to Pratap Singh. am Prakash inflicted knife injuries on Pratap Singh who was lying on the ground Hearing the exchange of abuses, Balbir, Ramvir, Netrapal, Moti Singh and others had arrived at the spot and saw the occurrence. Pratap Singh died on the spot. After the occurrence, the appellants ran away. ( 3 ) AFTER the occurrence, Moti Singh son of the deceased dictated report to Ramvir Singh at the spot and took this report to police station Shikarpur, District Bulandshahr. He lodged this report in the police station at 8. 30. p. m. same day. ( 4 ) M. C. Chaturvedi (P. W. 5) took up the in visitation on 23. 9. 1976, he went to the place of occurrence and from there went to village Panchgai and arrested Shisupal from the Gher of Netrapal. He recovered one gun which had a fired cartridge in its barrel and a belt of cartridges containing ten cartridges. On 24. 9. 1976, he had conducted the inquest proceedings and sent the dead body of Pratap Singh for post-mortem. He had made the other investigation and submitted chat he-sheet against the two accused. ( 5 ) THE dead body had been carried by P. W. 4 Harish Chandra constable and one other constable, to the mortuary. Dr. On 24. 9. 1976, he had conducted the inquest proceedings and sent the dead body of Pratap Singh for post-mortem. He had made the other investigation and submitted chat he-sheet against the two accused. ( 5 ) THE dead body had been carried by P. W. 4 Harish Chandra constable and one other constable, to the mortuary. Dr. S. C. Gupta (P. W. 6) had conducted the post-mortem examination at 5. lop. m. on 24. 9. 1976. The doctor reported that the deceased was about sixty years old and had died about one day back. On external examination, the doctor found the following ante-mortem injuries:1. Lacerated wound 3 x 1/2 x bone on the right side scalp, 4 above ear. 2. Lacerated wound 1/2 x 1/4 x bone just in front of injury No. 1. 3. Lacerated wound 4 x 1-1/2 x muscle deep near right nipple, 1" away from it and at 9 0 clock position. 4. Multiple abrased lacerated wounds in an area of 7 x 4 below the right nipple at 7 0 clock position (muscle deep ). 5. Lacerated wound 1/2 x 1/4 x muscle deep on front right shoulder. 6. Penetrating wound (clean cut) 3/4 x 1/2 x cavity deep on right inter scapular region. 7. Incised wound 3/4 x 1/4 muscle deep, on right scapular region lower part (clean out ). 8. Incised wound 1/2 x 1/4" muscle deep on left side back of chest lower third tailing downwards. 9. Incised wound 1/2" x 1/4 x muscle deep on the back over the spine of 12th thoracic vertebra. 10. Lacerated wound 2-112 x 2" x bone deep on right palm outer part bone deep. 11. Lacerated wound 1" x 1/2 on front of right fore-arm middle part (muscle deep ). 12. Abrasion 3 x 2 on front of right knee joint. 13. Abrasion 2 x 2 on front of left knee joint. ( 6 ) ON internal examination, the doctor found haematoma in an area of 6 under injuries 1 and 2. The right parietal bone was fractured. There was a. linear injury 6" extending on to temporal bone and middle carnival fossa. Membranes were congested. Brain was also congested. There was subdural haematoma in right parietal region in an area of 4" x 4 6th to 9th ribs on the right side were fractured under injury No. 4. The right parietal bone was fractured. There was a. linear injury 6" extending on to temporal bone and middle carnival fossa. Membranes were congested. Brain was also congested. There was subdural haematoma in right parietal region in an area of 4" x 4 6th to 9th ribs on the right side were fractured under injury No. 4. Right lung had a clean cut injury in an area of 1/3 x 1/4" x 1/3" corresponding to injury No. 6. Both the chambers of the heart contained about 5 1/2 ounces of blood. Abdominal cavity contained 2 ounces of blood. Stomach and small intestines were empty. Large intestine contained faucal matter. The outer surface of gall bladder was ruptured. The doctor opined that the death was caused due to shock and hemorrhage resulting from the injuries. ( 7 ) THE prosecution examined P. W. 1 Mati Singh, P. W. 2 Netrapal Singh and P. W. 3 Ramvir Singh as eye witnesses. The roles of P. Ws. 4 to 6 have already been indicated above. ( 8 ) THE appellants had pleaded not guilty to the charges. Shishupal had stated that he was ploughing the field of Bhoopat Singh. Pratap Singh and Moti Singh had arrived and complained to him that they had encroached upon their land. Exchange of words had taken place between the two parties. Moti Singh had a Lathi and Pratap Singh had a Ballam in their hands. They started assaulting Shishupal with their weapons. The accused wielded Lathi in self defence. Pratap Singh received injury. Thereafter Moti Singh took away his injured father Pratap Singh. Om Prakash did not make any statement regarding incident. He completely denied his participation. The appellant had examined V. S. Beniwal, Medical Officer who had examined Shishupal at 10 a. m. on 24. 9. 1976 and had found the following five injuries:1. Incised wound 6 cm x 1/2 cm x bone deep over top of skull, 10 cm. above the left root of ear. Scab was present. 2. Incised wound 3 cm x 1/4 cm x muscle deep over right thin eminence on the root of thumb. Scab was present. 3. Linear abrasion 3 cm x 1/8 cm over back of head 3 cm below the right wrist joint. 4. Incised wound, 2 cm x 1/4 cm x 1/4 cm, 4 cms above the lateral mallous. Scab was present. 5. Scab was present. 3. Linear abrasion 3 cm x 1/8 cm over back of head 3 cm below the right wrist joint. 4. Incised wound, 2 cm x 1/4 cm x 1/4 cm, 4 cms above the lateral mallous. Scab was present. 5. Contusion 3-1/2 cm x 2-1/2 cm on the left top of shoulder. It was pink in colour. ( 9 ) THE doctor opined that all the injuries were simple. The injuries 1, 2 and 4 were caused by sharp edged weapons; No. 5 has been caused by ordinary weapon and No. 3 by friction against hard substance. The doctor had opined that injury on Shishupal could be caused between 12 noon and 1 p. m. on 23. 9. 1976. ( 10 ) D. W. 2 Gopal Das was a clerk in Sales Tax Office Khurja and had proved that a brick kiln was functioning in the land in dispute. D. W. 3 to Munshi Singh is a scribe in the registry office Khurja. He has proved an agreement Ext. Kha 2. between Chinjee Lal, Beer Singh, Manohar and Ram Singh. ( 11 ) THE learned Sessions Judge did not accept the contention of appellant that the injuries on Pratap Singh was caused in self defence. It was held that the defence set up by Shishupal for the first time at the time of trial was apparently false. It was urged that there was no explanation of the incised wound and gun shot wound on the deceased, from the side of the appellants. The learned Sessions Judge had believed the prosecution witnesses and had held the appellants guilty of offence punishable under Section 302 read with Section 34, I. P. C. ( 12 ) IT was argued by the learned Counsel for the appellants that the learned Sessions Judge had wrongly held that the injury No. 4 on the body of the deceased was a gun shot wound. It was urged that below this injury ribs had fractured which could not have been caused by a gun shot. ( 13 ) THE doctor had not recovered any pellets from thoraxic or abdominal cavity of the deceased. If the fracture of ribs was caused by gun shot then the pellets ought to have been found in the body. ( 14 ) THE above argument of the learned Counsel for the appellants has substance. ( 13 ) THE doctor had not recovered any pellets from thoraxic or abdominal cavity of the deceased. If the fracture of ribs was caused by gun shot then the pellets ought to have been found in the body. ( 14 ) THE above argument of the learned Counsel for the appellants has substance. The learned Sessions Judge had referred to the statement of Doctor M. C. Chaturvedi that the holes found on the TBainyaeen and shirt of the deceased corresponded to injury No. 4. The learned Sessions Judge also observed that even though the Doctor had opined that the injury No. 4 could be caused by a blunt weapon yet this opinion was not correct because the Doctor had not taken into consideration the inquest report. This reasoning of the learned Sessions Judge was erroneous. In the inquest proceeding the Panches only mention whether the death was unnatural or natural and if so, is there a necessity for post-mortem. Section 174 of the Code of Criminal Procedure provides that in the presence of two or more respectable inhabitants of the neighbourhood the police officer shall make an investigation, and draw up a report of the apparent cause of death, describing wounds, fractures, braises, and other marks of injury as may be found on the body, and stating in that manner, or by what weapon or instrument (if any), such marks appear to have been inflicted. The word appear used in Section 174 is significant. The police officer has to give an opinion only on the basis of his observations as it appear to him at the tights of examination of the body of deceased. The police officer is not a medical expert. If he describes a particular wound as a gun shot wound then it is for the medical officer to state whether the said wound was a gun shot wound or not and other evidence in support of his opinion. The injury No. 4 was a multiple abraded lacerated wound in an area of 7 x 4. We do not agree with the learned Sessions Judge that injury No. 4 could be a gun shot wound. The fracture of the four ribs under heath injury No. 4 clearly goes to show that it could be caused by some blunt object. The injury No. 4 was a multiple abraded lacerated wound in an area of 7 x 4. We do not agree with the learned Sessions Judge that injury No. 4 could be a gun shot wound. The fracture of the four ribs under heath injury No. 4 clearly goes to show that it could be caused by some blunt object. ( 15 ) THE prosecution has not come forward with any evidence as to how four lacerated wounds 1, 2, 3 and 5 were caused on the deceased. According to the prosecution, two appellants were holding only a licensed gun and a knife. It was not stated in the First Information Report that the gun was used as lathi at any point of time. Moti Singh (P. W. 1) introduced this fact for the first time during his deposition before the trial Court. When his attention was drawn as to why he did not mention this fact about use of gun as a lathi, then he stated that on account of anxiety he could not mention it in the report. He had not stated this fact even to the Investigating Officer. ( 16 ) THE Investigating Officer had recovered a double barrel gun from the possession of Shishupal. Hence Shishupal could have easily fired two shots towards the deceased. There was no necessity of using the gun as a la/hi. No other explanation has come for explaining the lacerated wounds. This explanation is only an after thought. It, therefore, appears that the medical evidence is quite against the occular evidence P. W. 1, Mati Singh has come forward with an explanation about the injuries of Shishupal. He stated before the trial Court that when he saw his father being assaulted by the assailants, he brought a hall am from his house and inflicted the injuries to Shishupal. This fact has not been stated in the First Information Report. Before the Investigating Officer he had stated that he had inflicted injuries to both the appellants. Thereafter he made this improvement that the injuries were caused only to one of the appellants. ( 17 ) THE nature of injuries on the person of Shishupal were such which could have created an apprehension in the mind of Shishupal that if he does not wield his weapon then he may receive further grievous injuries which may result in his death. ( 17 ) THE nature of injuries on the person of Shishupal were such which could have created an apprehension in the mind of Shishupal that if he does not wield his weapon then he may receive further grievous injuries which may result in his death. Injury No. 1 was in the top of the skull. This was sufficient to cause apprehension mentioned-above. ( 18 ) THE learned Sessions Judge had placed responsibilities upon the appellants to explain the injuries of the deceased. He observed:"the defence set up by accused Shishupal is false. His version is that he wielded a lathi in self-defence whereby Pratap Singh received injuries. According to him accused Om Prakash was not present. He could not give any explanation of the other injuries caused to Pratap Singh. Incised wound and fire-arm injury could not be caused by lathi" ( 19 ) NO burden lies on the defence to explain the injuries of the deceased or anyone of the witnesses. He can state such version which may cast a reasonable doubt on the prosecution story. The learned Sessions Judge had wrongly interpreted injury No. 4 as a gun-shot injury. When on the appreciation of evidence we find that the injuries were caused by blunt object and no blunt object is said to have been used by anyone of the accused appellants, a belated explanation is coming forward from the side of the prosecution about the lacerated wounds then this itself is sufficient to cast a doubt on the prosecution story. ( 20 ) NETRAPAL (P. W. 2) also states that Shishupal has fired from his gun which caused injuries to Pratap Singh. We have already held above that this was not correct. Pratap Singh has not received any fire-arm injury whatsoever. Ramvir Singh has also presented the same story. He too has stated that Pratap Singh had received fire-arm wound. We find that this statement of Ramvir is not correct. ( 21 ) IT may appear from a perusal of the First Information Report that it was lodged promptly within two-and-a-half hours of the occurrence. The occurrence had taken place on 23. 9. 1976. On this date the equinox falls and the day and night timings are equal. The sun sets at 6. 00 p. m. and rises at 6. 00 a. m. Hence after the occurrence darkness must have started setting in. The occurrence had taken place on 23. 9. 1976. On this date the equinox falls and the day and night timings are equal. The sun sets at 6. 00 p. m. and rises at 6. 00 a. m. Hence after the occurrence darkness must have started setting in. Moti Singh has stated that soon after the occurrence he had dictated the First Information Respondent to Ramvir Singh and thereafter took it to the police station. This statement does not appear to be correct. Maker of the report had stated in the report that the dead body is lying at the spot and he had left Ramvir, Vijendra and Om Prakash at the spot near the dead body. This statement itself reveals that the report was written at some place away from the place of occurrence otherwise this fact would not have occurred that the witnesses have been left at the place of occurrence. The police station was situated at a distance of 7 miles from the place of occurrence. Moti Singh has stated in reply to question No. 75 that he had gone on foot to the police station. He also stated that after half hour or 45 minutes the sun had set. We have already discussed that on the said day the sun must have set at 6 p. m. Hence the report could have been written in some artificial light. The statement of Moti Singh does not say that he had written the report in the light of some lantern or electric light if it was available at that time in the village. ( 22 ) SOME time would have been taken by P. W. 1 Moti Singh in composing himself and making mind for dictating report. In the situation that a father was killed it would not have been possible for Moti Singh to start dictating the report within next half an hour. Some time would have been taken by him for travelling the distance of 7 miles. Ordinarily a human being can cover a distance of four miles in one hour at average speed. ( 23 ) CONSIDERING the above aspect of the matter we are of opinion that Moti Singh could not have reached the police station at 8. 30 p. m. The report is therefore ante-timed. Ordinarily a human being can cover a distance of four miles in one hour at average speed. ( 23 ) CONSIDERING the above aspect of the matter we are of opinion that Moti Singh could not have reached the police station at 8. 30 p. m. The report is therefore ante-timed. ( 24 ) MOTI Singh has admitted in his cross-examination that a quarrel had taken place between his father and appellant about the Mera of the field before the occurrence. So Moti Singh could have had no apprehension that the appellants would commit any crime. The occurrence has taken place near the house of Moti Singh. A Chak road has been shown just adjacent to the field in which Pratap Singhs dead body was found. Just adjacent to this Chak road towards east, exists the house of Pratap Singh. Considering this proximity of the house of Pratap Singh the contention of Shishupal appears to be probable. As we have seen above the prosecution is not coming forward with a correct story. There is a serious inconsistency between medical and ocular evidence. The First Information Report appears to be ante-timed. A belated explanation has come forward about the injury of Shishupal. This explanation can not be accepted. In view of the above infirmities we find that prosecution case was not reliable. The learned Sessions Judge has erred in believing the prosecution story. ( 25 ) THE appeal is allowed. The judgment and order of the lower court are set aside. The appellants are acquitted of the charges levelled against them. They are on bail. Their bail bonds are cancelled and sureties discharged. Appeal allowed. .