Judgment Surya Prasad, J. 1. These two appeals have been filed against one and the same judgment dated 26th September, 1979 passed by the then learned III Additional Sessions Judge, Mathura, in Session Trial No. 45 of 1979 convicting the appellants in both the appeals under section 302 read with section 149 IPC and sentencing them to imprisonment for life for the murder of Samay Singh, further convicting them under section 302 read with section 149 IPC and sentencing them to imprisonment for life for committing the murder of Smt. Kishan Devi, wife of Ramji Lal, Smt. Kishan Devi, wife of Ramphal, Hari Singh, son of Ramji Lal and Km. Atri, daughter of Sarup and also convicting them under section 148 IPC and sentencing to two years rigorous imprisonment thereunder. All the sentences were directed to run concurrently. Seven accused named, Shami, Ram Singh, sons of Lal Singh, Shera, Lal Chand, Roopan Rumal and Amri, who were also tried, were, however, acquitted of the charges levelled against them along with the applicants accused, in the present appeals, by the learned III Additional Sessions Judge, Mathura, through his aforesaid impugned judgment and orders. The first charge framed against the accused appellants along with others is that they armed with guns and country made pistols along with Narain Singh, formed an unlawful assembly at about 6.15, 6.30 am. on 7-9-!978 in the Abadi of village Rampur within police circle Shergarh with the common object of murdering Surjeet, son of Narain Singh and his family men and they used criminal force and thereby they committed the offence punishable under section 148 IPC. The second charge against them is that they along with Narain Singh on the said date, time and place, armed with guns and country made pistols, arrived at the roofs of the houses of Surjeet and Ramphal and as members of unlawful assembly and in persuance of the aforesaid unlawful object, they committed the murder of Samay Singh, nephew of Surjeet and thereby they committed the offence punishable under section 302 read with section 149 IPC. The third charge against them is that they on the said date, time and place along with Narain Singh, armed with guns and pistols, as members of the aforesaid unlawful assembly and in persuance of the aforesaid unlawful object they committed the murder of Smt. Kishan Devi, wife of Ramphal, Smt. Kishan Devi, wife of Ramji Lal, Km. Atri and Hari Singh, members of the family of Surjeet and thereby committed the offence punishable under section 302 read with section 149 IPC. 2. The prosecution case briefly stated is that there was a deep-rooted old enmity between the accused on the one side and Surjeet (PW 1) on the other and this was a sequel to the criminal litigation, which had taken place some one or two decades ago. The criminal cases fought out by the parties left behind a trial of acrimony, rancour, ill-will and hatred for each other. Shree Ram, Hariya, Ram Singh and Narain Singh are the sons of Tursi Gujai. Ram Singh and Shami are the sons of Lal Singh. Roopan and Amri are real brothers, being sons of Yadu. Narain Singh is an Ex. Army- man, who was living in the village since he deserted the Army. It is alleged that on the date of this occurrence, the daughter of Narain Singh was easing on an open land, which is used for purposes of Rasta by the public and is in the close vicinity of the heaps of dung-cakes of Surjeet. This was objected to by Mst. Dhaura (PW 2) who is the elder sister of Surjeet Singh (PW 1) and is a married woman, about 40 years of age. She was staying with her brothers at the time of this incident, Narain Singh was standing by the side of her daughter, who was attending the call of nature. Mst. Dhaura remonstrated against Narain Singh for his audacity to make his daughter ease in the public Rasta. It is further alleged that this culminated in the exchange of hot words followed by abuses. Meanwhile Surjeet Singh (PW 1) and the other three brothers of Narain Singh, namely, Shree Ram, Ram Singh and Hariya were attracted to the scene by the surcharged atmosphere and the high tempers of Smt. Dhaura and Narain Singh. They, however, acted as interveners and separated Mst. Dhaura and Narain Singh. Surjeet Singh took away his sister Mst. Meanwhile Surjeet Singh (PW 1) and the other three brothers of Narain Singh, namely, Shree Ram, Ram Singh and Hariya were attracted to the scene by the surcharged atmosphere and the high tempers of Smt. Dhaura and Narain Singh. They, however, acted as interveners and separated Mst. Dhaura and Narain Singh. Surjeet Singh took away his sister Mst. Dhaura (PW 2) to his house whereas the brothers of Narain Singh took him away to their house. Consequently a serious incident which was likely to happen was averted by the timely arrival of the brothers of both the sides, It is further alleged that Mst. Dhaura (PW 2) became busy with the domestic affairs. Surjeet (PW 1) washed his mouth and came out of his house with his nephew Samay Singh. They started gossiping in the public lane. It is further alleged that 12 persons, including one absconder, named, Narain Singh appeared on the scene armed with country made pistols and guns. Some of them climbed up on the roof of the house of Surjeet Singh where as the rest climbed on the roof of the house of Ram Phal. They were all, as mentioned above, armed with guns and country made pistols. They fired a volley of shots from the aforesaid two roofs and the first casualty was Samay Singh, who fell down badly injured and collapsed instantaneously because of serious head injuries. Surjeet Singh (PW 1) in order to save himself took refuge behind an incomplete mud wall against the onslaught of fire arms. The report of gun-shots attracted the ladies with children, one followed them and the other was in the lap of his mother. Indiscriminate firing bit them on vital parts and they also breathed their last. It is further alleged that the incident was witnessed by Pooran, son of Ashraf (PW 3), Amar Singh (PW 4) and Beedha (PW 5.) Amar Singh and Beedha, sons of Tuhda are brothers and are neighbours of Surjeet Singh. It is alleged that at the time of the incident they were enjoying Hukka. It is further alleged that the accused having accomplished their objective, left scene and became un-traceable Surjeet Singh, came out of the hide-out. His Sala (brother-in-law) Suraj was staying with him as he had come to take his sister with himself. Shortly after the incident, Surjeet Singh appeared on the scene of occurrence. It is further alleged that the accused having accomplished their objective, left scene and became un-traceable Surjeet Singh, came out of the hide-out. His Sala (brother-in-law) Suraj was staying with him as he had come to take his sister with himself. Shortly after the incident, Surjeet Singh appeared on the scene of occurrence. Surjeet Singh (PW 1) got a report (Ex. Ka 1) written by Suraj Singh on his dictation about the incident. Surjeet Singh thereafter left for the police station on horse-back. Reaching there, he handed the written report over to the police official concerned, who on its basis prepared a chiek Report, Ext. Ka-2 and made the entries in the general diary, an extract of which is Ext. Ka-3. A case was ultimately registered against the appellants accused along with eight others, including Narain Singh who has since been absconding. After the registration of the case, the investigation ensued The Station Officer Inam Singh, who was present at the police station, immediately left for the spot on motor-cycle. Reaching there, he- immediately recorded the statement of Surjeet Singh, inspected the dead bodies and seized them and then he held inquest with the aid and assistance of five public Panches, got them (dead bodies) duly sealed-up and despatched them to mortuary for post mortem examination with necessary papers. He picked-up blood-stained and plain earth from the spot, put them in separate containers Exts. Ka-1and Ka-2 and prepared memos Exts. Ka-42 and Ka-43 therefor. Thereafter he inspected the roofs, but he did not recover any empty, pallet or wad. He raided the houses of the accused, but they were not traceable. THE statement of Smt. Dhaura (PW 2) was recorded on 1-10-1978. THE post mortem examination was conducted by Dr. S. Yadav on the dead bodies of all the deceased, as deposed by Dr. K.K. Khanna (PW 8) the then C.M.O., District Hospital Mathura. As a result of the post mortem examination on the dead bodies of Samay Singh, Km. Atri, Hari Singh, Smt. Kishan Devi, wife of Ramji Lal and Smt. Kishan Devi, wife of Ramphal the following antemortem injuries were found thereon : Samay Singh : 1. Gun shot wound of entry 1.5 cm x 1.5 cm x brain cavity deep on right parietal bone 10 cm above the right ear. Brain matter protruding from the wound. 2. Atri, Hari Singh, Smt. Kishan Devi, wife of Ramji Lal and Smt. Kishan Devi, wife of Ramphal the following antemortem injuries were found thereon : Samay Singh : 1. Gun shot wound of entry 1.5 cm x 1.5 cm x brain cavity deep on right parietal bone 10 cm above the right ear. Brain matter protruding from the wound. 2. Two gun shot wounds of entry 2 cm x 2 cm x muscle deep each in an area 4 cm x 4 cm on right scapula blade upper-part-recovered one pallet of big size. Death due to coma as a result of head injury. Km, Atri, d/o Sarup : 1. Gun shot wound of entry on the right side of occipital region 1.5 cm x 1.5 cm x brain cavity deep. Brain material protruding from the wound. 2. Gun shot wound of entry 2 cm x 2 cm x chest cavity deep just below supra sternal notch. Death was due to Coma as a result of head-injuries Hari Singh, s/o Ramji Lal : 1. Gun shot wound of entry 1.5 cm x 1.5 cm x chest cavity deep front right side chest 2 cm above right nipple. Scorching and tattooing around the wound. 2. Gun shot wound of exit 2 cm' x 2 cm and connecting injury no. 1 on back right side of chest. Pleura lacerated right side at two places. Right lung upper lobe lacerated through and through under injury no. 1. Cause of death was due to syncope as a result of injuries. Smt. Kishan Devi w/o Ramji Lal : 1. Gun shot wound of entry 2 cm x 2 cm x neck cavity deep on left side middle of neck 5 cm below the left ear. No scorching or tattooing. 2. Gun shot wound of entry 2 cm x 2 cm x chest cavity deep just front of right axilla. No scorching or tattooing present. 3. Gun shot wound of entry two in number 1 cm x 1 cm x 2.5 cm. Through and through connecting injury no. 1. The cause of death was due to syncope as a result of shock and haemorrhage. Smt, Kishan Devi, w/o Ramphal : 1. Gun shot wound of entry 2 cm x 2 cm x chest cavity deep on front of middle of sternum precardial region. 2. Through and through connecting injury no. 1. The cause of death was due to syncope as a result of shock and haemorrhage. Smt, Kishan Devi, w/o Ramphal : 1. Gun shot wound of entry 2 cm x 2 cm x chest cavity deep on front of middle of sternum precardial region. 2. Gun shot wound of entry 2 cm x 2 cm x chest cavity deep on left lateral side of chest 8 cm below left axilla. 3.Gun shot wound of exit left side back chest at interior angle of left scapula. No tattooing or scorching present. 4. Gun shot wound of exit on the neck midline connecting injury no. 1. Death was due to syncope as a result of shock and haemorrhage due to injuries. According to the opinion of the doctor, the death of the victims could have possibly occurred on 7-9-1978 at about 6, 6.30 a.m. These injuries were sufficient to cause death in the ordinary course of nature. On the receipt of the post mortem reports and after the completion of the investigation into the case, a charge sheet was submitted against the appellants-accused and others. 3. The prosecution examined the informant Surjeet Singh (PW 1), Smt. Dhaura (PW 2), Puran (PW 3), Amar Singh (PW 4), Bodha (PW 5), Sub-Inspector Inam Singh (PW 6) and Dr. K.K. Khanna (PW 8) and relied upon certain documents including an affidavit filed by Mulayam Singh in support of its case. 4. The appellants accused along with others pleaded not guilty. They have stated that all the allegations levelled against them are wholly wrong and incorrect. They have pleaded ignorance about many of the facts relating to the case. They have further stated that they have been falsely implicated on account of enmity. They have also stated that the witnesses have deposed against them on account of enmity. They have not examined any one in defence. They have, however, filed certain documents in support of their contentions. 5. Having heard the learned counsel for the parties and having considered the evidence on record, the then learned III Additional Sessions Judge Mathura convicted and sentenced the appellants-accused and acquitted 7 others of the charges framed against them, through his impugned judgment and order. Aggrieved, the appellants accused filed these two appeals against the same as mentioned above. 6. 5. Having heard the learned counsel for the parties and having considered the evidence on record, the then learned III Additional Sessions Judge Mathura convicted and sentenced the appellants-accused and acquitted 7 others of the charges framed against them, through his impugned judgment and order. Aggrieved, the appellants accused filed these two appeals against the same as mentioned above. 6. We have heard the learned counsel for the parties at length and have gone through the record carefully. All the accused-appellants along with Narain Singh, absconder, are alleged to have fired at Surjeet Singh (PW 1) from the roof of the house of Ramphal. Similarly 7 others are alleged to have done so from the roof of the house of Surjeet Singh (PW 1) himself. They had full view of Surjeet Singh from the very beginning to the end of the incident. Surjeet Singh (PW 1) was the main target of all the accused-appellants and others. He was at a distance of two paces only from Samay Singh, who received injuries and fell down. But Surjeet Singh (PW 1) did not receive any injury of any sort although volley of shots are alleged to have been fired. This is something very strange. The explanation which Surjeet Singh (PW 1) has tried to offer is that he had hidden himself behind a wall. But he had also fallen down at once on the falling down of Samay Singh after receiving gun shot injury. Volley of shots are alleged to have been fired from the roofs of the houses of Ramphal and Surjeet Singh. Therefore, he could not have any opportunity to get up and run away in order to hid himself behind the wall. He has not stated that he had got up and then run away. If he had done so, he would have certainly received injuries in that process itself. Daroga had not found any such wall on the spot, as alleged by the prosecution. Therefore, the question of Surjeet Singh having hid himself behind any wall in the course of the incident does not arise. However, even if it be assumed for a moment, just for the sake of argument that there was some wall in existence and that he hid himself behind the same, the question is whether he bad seen anything while hiding himself behind the wail. However, even if it be assumed for a moment, just for the sake of argument that there was some wall in existence and that he hid himself behind the same, the question is whether he bad seen anything while hiding himself behind the wail. He has categorically stated that he had fallen down behind the wall while facing towards the earth He had stealthily hid himself there. He did not make any sign of movement. The whole affair was over within seconds. In view of all this he cannot be held to have seen anything in the course of the incident. It can also be un-hesitatingly expressed that if he had been there, he would not have been spared by the assailants in view of the facts and circumstances of the case. His statement to the contrary does not inspire confidence. There is no mention in the first information report as to who of the accused was armed with which of the weapon. Not only this, but there is also no mention in the first information report as to who of the accused actually appeared on which of the two roofs of the houses of Ramphal and Surjeet Singh. It is only in the examination-in-chief that the informant Surjeet Singh (PW 1) has stated that Narain Singh and Balvir Singh holding single barrel guns in their hands and Hariya, Ram Singh and Shree Ram holding country-made pistols in their hands, climbed on the roof of Ramphal and that the assailants Lal Chand, Ram Singh, son of Lal Singh, Shami, Amri, Roopan and Roomal holding country-made pistols in their hands and the other assailant, namely, Shera holding single barrel gun in his hand climbed on his (Surjeet Singh's) roof. He has, therefore, made these material improvements over what has been mentioned in the first information report. 7. The roofs of the houses of the informant Surjeet Singh (PW 1) and Rampal, each were 7'-6" high from the level of the ground. There was a distance of 15-20 yards between these two roofs. The assailants named above, had fired guns and country-made pistols from the said roofs. Samay Singh deceased nephew of Surjeet Singh (PW 1) were talking to each other in a Gali which was at the equi-distance from the said roofs. They were then at a distance of two paces from each other in the said Gali. The assailants named above, had fired guns and country-made pistols from the said roofs. Samay Singh deceased nephew of Surjeet Singh (PW 1) were talking to each other in a Gali which was at the equi-distance from the said roofs. They were then at a distance of two paces from each other in the said Gali. Some of the assailants, named above, appeared on the roof of the house of Rampal whereas rest appeared on the roof of the house of Surjeet Singh himself. All the assailants are alleged to have fired at Surjeet Singh from their respective roofs with the intention of killing him (Surjeet Singh). 8. Surjeet Singh (PW 1) has stated that all the assailants had fired 5-6 shots on the spot. This statement is inconsistent with his statement recorded under section 161 CrPC wherein he has stated that they had fired 4-5 shots only. Therefore, neither of his statement can be relied upon. There were 12 assailants in all. They are all alleged to have fired. And yet, there were only 11 injuries in all as found on the persons of all the deceased. There was scorching and tattooing around the injury no. 1 on the person of Hari Singh. This indicates that the firing was done from a very close range. Dr. Khanna was of the view that the weapons must have been almost horizontal in the case of Hari Singh and Smt. Kishan Devi. In view of all this it can be un-hesitatingly expressed that the firing was done not from the roofs but from some other place and in some other manner. Surjeet Singh (PW 1) has stated that he had seen all the assailants with guns and country made pistols climbing on the aforesaid roofs and that he had fully sensed their intention of killing him and yet he did not run away nor did he ask his nehew Samay Singh to immediately run away. His act and conduct appears to be un-natural. This is so because if he had been present he would have certainly run away in order to save his life. Therefore, his statement to the aforesaid effect does not inspire confidence. 9. Smt. Dhaura (PW 2) has not stated even a word to indicate that he had seen any of the assailant firing on any of the deceased or any body else. Therefore, his statement to the aforesaid effect does not inspire confidence. 9. Smt. Dhaura (PW 2) has not stated even a word to indicate that he had seen any of the assailant firing on any of the deceased or any body else. Her statement is, therefore, of no avail to the prosecution case. 10. Pooran (PW 3) has given his statement in such a way as if all the five deceased were fired at simultaneously. He had attributed 4-5 shots to Narain Singh only whereas the total number of the shots were 5-6 only. According to him all the assailants were standing near the place where Samay Singh had fallen down. He has stated that Samay Singh had fallen down and the assailants had been standing with their guns and country-made pistols. This is no body's case. He did not see as to from which of the roofs the shots were fired. Nor did he find any pallet, empty cartridges etc. etc. on the spot. He has spoken such complementary words in his statement in regard to Surjeet Singh (PW 1) as to indicate that he had soft corner for him (Surjeet Singh). His entire statement if read carefully, would show that it is based on guess "and surmises. No reliance can, therefore, be placed on his statement. Amar Singh (PW 4) asserts to have put his signature on the inquest report. But the inquest report does not contain his signature. He had seen Surjeet Singh standing besides the dead body of Samay Singh. But there is no case as such of the prosecution. He had stated that the Paroga had seen the wall behind which Surjeet Singh (PW 1) had hid himself. But Daroga Inam Singh (PW 6) did not find any such wall on the spot. This is probably the reason why there is no mention of any wall in the first information report itself. He (Amar Singh, PW 4) has further stated that when Surjeet Singh was running away to the wall to hide himself, the assailants fired 5-6 shots at him which did not however, hit him and, therefore, he ran away un- injured. But there is no case as such of the prosecution. He has further stated that he had seen the assailants firing one shot each. This statement stands neither here nor there. 11. But there is no case as such of the prosecution. He has further stated that he had seen the assailants firing one shot each. This statement stands neither here nor there. 11. Bodha (PW 5) did not see who of the assailants fired at whom. All the village people rushed to the place of occurrence and surrounded the dead bodies immediately after the assailants ran away. His statement does not lend support to the prosecution case in any manner what-so-ever. 12. The prosecution case is that the informant Surjeet Singh (PW 1) got the first information report Ext. Ka-1 written by Suraj Singh, his brother-in-law on his dictation in his village. But the words "Lasho ko ghar chhorkar report ko aaya hun," occurring in the first information report indicate that it was written not in the village, but at the police station itself. Pooran (PW 3) had stated that Suraj Singh happened to come to take his sister to his house. Seeing the dead bodies, he (Suraj Singh) burst into tears. All 'hose who were present on the place of occurrence, asked him (Suraj Singh) to go to the police station to lodge a report. Consequently he went to the police station for that purpose. Surjeet Singh (PW 1) had been weeping bitterly on the spot where others were present. He did not go any where. Surjeet Singh (PW 1) has further stated that he had been at the police station for about 6 hours, within which time the entire writing work was done. His brother-in-law and 5-6 persons of his village had gone to the police station on cyles. He (Surjeet Singh PW 1) had returned from the police station leaving those persons there. In view of all this the first information report can be held to have been written at the police station and not in the village and that too with due deliberations and consultations. The learned counsel for the accused-appellants has argued that the first information report is ante timed and not free from suspicion and, therefore, the very prosecution case appears to be doubtful. The learned counsel for the accused-appellants has argued that the first information report is ante timed and not free from suspicion and, therefore, the very prosecution case appears to be doubtful. For this he placed reliance upon Marudanal Augusti v. State of Kerala, 1980 SCC (Cri) 985 wherein it has been observed, inter alia, as under :- "The High Court seems to have overlooked the fact that the entire fabric of the prosecution case would collapse if the FIR is held to be fabricated or brought into existence long after the occurrence and any number of witnesses could be added without there being anything to check the authenticity of their evidence." The learned III Additional Sessions Judge has, inter alia, observed in his impugned judgment as under : "According to the medical evidence, there was scorching and tattooing in the case of Hari Singh and the weapon must have been within a range of 4 feet from him (Hari Singh). Dr. Khanna was further of the view that weapons must have been almost horizontal in the case of Hari Singh and Smt. Kishan Devi. It means that the victims were in the close range of the fire-arms of the assailants and the prosecution case that the firing was done from the roof of Ramphal or from the roof of Surjeet Singh does not stand proved." 13. The learned III Additional Sessions Judge has further observed that the first information report was written not in the village but at the police station. It is not out of place to mention that the learned Additional Sessions Judge has made such other observations as can very well be said to be arbitrary, imaginary and wholly baseless. Not only this, but he has also disbelieved the Investigating Officer Inam Singh (PW 6). He has observed that the investigation is highly suspicious. 14. The dead bodies were shifted. The investigation suffers from infirmities. The seven assailants have already been acquitted by the learned III Additional Sessions Judge through his impugned judgment and order. The State does not appear to have filed any appeal against the acquittal of the said seven assailants (accused). The statements of the alleged eye-witnesses are wholly unreliable. Material improvements have been made over what has been mentioned in the first information report, which is fabricated and ante timed. The State does not appear to have filed any appeal against the acquittal of the said seven assailants (accused). The statements of the alleged eye-witnesses are wholly unreliable. Material improvements have been made over what has been mentioned in the first information report, which is fabricated and ante timed. There are inconsistencies and contradictions on material points between the statements of the alleged eye-witnesses. The medical evidence does not support the prosecution case. In view of these facts and circumstances, Sri P.N. Misra, learned counsel for the accused-appellants has vehemently argued that the conviction and sentences awarded to them by the learned III Additional Sessions Judge through his impugned judgment and order cannot be maintained. His argument does not appear to be devoid of force. In the result both the appeals are allowed. The impugned judgment and order are set aside. The appellants-accused in both the appeals are acquitted of the offences with which they have been charged. They are on bail. Their bail bonds are cancelled and sureties stand discharged. They need not surrender. Appeal allowed.