Judgment : 1. THE present appeal is preferred against the judgment and order dated 8-12-1979 passed by III Addl. Sessions Judge, Hamirpur, convicting the accused-appellants under section 302/34 IPC and sentencing each of them to imprisonment for life. 2. THE prosecution case in brief is that on 24-12-1977 at about 8 a.m. in front of door of Prem Narayan in viillage Jamkhuri, P. S. Jariya, district Hamirpur, the accused appellants in furtherance of their common intention committed murder of Phool Singh. According to the prosecution allegations, as disclosed in the First Information Report lodged by Bans Gopal on 24-11-1977 at 9.15 a.m. at P. S. Jariya, the reporter Bans Gopal, Chet Ram, Kishor, Kalicharan and Govinda alongwith Prem Narayan were sitting in the courtyard of the house of Prem Narayan. Phool Singh (deceased)-relation of reporter was also sitting there. The deceased Phool Singh came out of the Court-yard for the purposes of urinating; and when he reached at a distance of 4 paces from the door, the accused persons who were on the roof of their house, challeneed Phool Singh saying "Yahi Hai Sheetal Ka Sala, Maro Sale Ko", and at once fired shots with their guns at Phool Singh. Phool Singh cried and fell down on the spot. On hearing the challenge thrown by the accused persons, the reporter and other persons who were sitting in the courtyard of Prem Narayan got up and saw the accused persons on their roof wielding their guns. These witnesses took shelter of the wall on shots being fired and then it was not known where the accused fled. It is also alleged that there was an old enmity of the accused persons with Sheetal. The brother of reporter had committed the murder of one Baiju Dheemar who was the person of the party or accused Har Dayal and on account of this emnity, the accused committed the murder of the brother-in-law of Sheetal. It may be noted here that the reporter Bans Gopal PW 2, Prem Narayan PW 3, Kishori PW 4 and other witnesses, mentioned in the First Information Report, are the residents of village Jamkhuri, while the deceased Phool Singh was the resident of village Para. Bans Gopal FW 2 and other witnesses, went to the place of occurrence and found that PhooI Singh had succumbed to his injuries. Bans Gopal FW 2 and other witnesses, went to the place of occurrence and found that PhooI Singh had succumbed to his injuries. Bans Gopal after leaving the witnesses at the place of occurrence went to his house where he scribed report and lodged the report Ext. Ka-2 at P. S. Jariya on the same day at 9.15 a.m. Constable Jagpal Singh PW 7 was constable Moharir at the relevant time and he prepared chik report Ex. Ka 13 on the basis of written report Ex. Ka 2 lodged by Bans Gopal. He also registered the case at SI. No. 10 of the G. D. at the same time, vide Ex. Ka.14 extract. S. I. Kripal Kuril PW 5 was the Station Officer of P. S. Jariya at the relevant time. The case was registered in his presence. The investigation of the case was entrusted to him. He took the statement of the reporter Bans Gopal at the police station and thereafter he alongwith other police personnel and relevant papers left for tie place of occurrence. He found the dead body of the deceased near chabutara of Neem tree and prepared inquest report Ex. Ka-3 in the presence of witnesses. He also prepared photo lash and challan lash Ex. Ka-7 and Ex. Ka-8. He took into possession the bloodstained clothes from the dead body (Ex. 2 to 7) and after sealing them prepared recovery memo Ex. Ka-4. The dead body was sealed and it was despatched for post-mortem through constables Lakhan Singh and Ari Mardan Chaube with letters Ex. Ka-9 and Ka-10. The Investigating Officer took the statement of witnesses of inquest report and Prem Narayan, he then inspected the place of occurrence and prepared site plan containing index, vide Ex. Ka-11 carbon copy. He also took into possession blood stained earth Ex. 8 and plain earth Ex. 9 and sealed them in separate containers and prepared memo Ex. Ka 5 which was signed by the witnesses. He recovered from the place of occurrence Tiklies Ex. 11/1 to 11/7 and 3 pellets Ex. 1/1 to 1/3 and prepared memo in respect thereof, vide Ex. Ka-6. He then took the statement of witnesses Chet Ram, Kinori, Kalicharan and made search of the accused but they were not found. 3. Ka 5 which was signed by the witnesses. He recovered from the place of occurrence Tiklies Ex. 11/1 to 11/7 and 3 pellets Ex. 1/1 to 1/3 and prepared memo in respect thereof, vide Ex. Ka-6. He then took the statement of witnesses Chet Ram, Kinori, Kalicharan and made search of the accused but they were not found. 3. THE dead body of Phool Singh in sealed condition was sent through constables Lakhan Singh PW 6 and Ari Mardan Chaube for post-mortem and they produced it in sealed condition on 25-12-1977 before Dr. S. C. Pandey PW I, who was medical officer Incharge Make Hospital Rath district Hamirpur, and identified the dead body. Dr. S.C. Pandey performed autopsy on the dead body of Phool Singh on 25-12-1977 at 3.30 P.M. Dr. Pandey found the eyes of the deceased closed, mouth half open. abdomen swallen blood discharged from nostrills, rigor mortis present in both upper and lower limbs. Dr. Pandey found following ante Mortem Injuries on the person of the deceased : Gun-shot wound of entrance 8 cm x 8 cm x bone deep just below left lower eye lid lateral side below lateral angle of left eye. On internal Examination, Dr. Pandey found : Dura mater ruptured due to injury, blood present over both heamosphere. One shot taken out from right haemisphere. Fracture of left and right anterior crinial fossae. He also found fracture of left masulla due to injury. Stomach contained 4 Ozs coagulated blood. Small intestine contained blood. Large intestine contained faecal matter. Urinary bladder was empty. In the opinion of Dr. Pandey, the death was due to coma as a result of injury. The death had taken place about 18 to 36 hours before post mortem examination. 4. ON 25-12-1977 the Investigating Officer after making search of the accused, returned to the police station and deposited the aforesaid 4 bundles of the case property and made entry at SI. No. 13 of the G. D. at 6.30 P.M., vide Ex. Ka. 15. The Investigating Officer learned on 28-12-1977 that the accused had gone to Hamirpur for surrender before the court and further learned on 3-1-1978 that the accused after surrender had been sent to Jail. After completing the investigation, the Investigating Officer Shri Kripal Kuril PW 5 submitted charge-sheet against the accused persons, vide Ex. Ka-13. The prosecution examined in all seven witnesses. After completing the investigation, the Investigating Officer Shri Kripal Kuril PW 5 submitted charge-sheet against the accused persons, vide Ex. Ka-13. The prosecution examined in all seven witnesses. Out of them Bans Gopal PW 2, Prem Narayan PW 3, Krishori PW 4, are witnesses of fact. Dr. S. C. Pandey PW 1 performed autopsy on the dead body of deceased Phool Singh and Shri Kripal Kuril PW 5 I.O., investigated the case. Constable Lakhan Singh PW 6, and Jagpal Singh PW 7 are formal witnesses, of the case regarding despatch of dead body for post-mortem and preparation of chik report and G. D. entry. 5. ALL the accused appellants, pleaded not guilty and denied the prosecution allegations. They have pleaded that they have been implicated due to enmity and the witnesses have given evidence due to enmity. No defence was adduced. 6. WE have heard Shri Gopal Chaturvedi, learned counsel appearing on behalf of the appellants and the learned A.G.A. Shri Jagdish Tiwari for the respondent and Shri B. N. Singh learned counsel appearing for the complainant at considerable length and have carefully perused the evidence and material on record. It is not disputed that the victim of the occurrence was Phool Singh who died on account of one gun shot injury. It is also admitted that there is enmity between the reporter Bans Gopal and the witnesses on one side and the accused on other. The place of occurrence is near Chabutara of the Neem tree in the south of the house of Prem Narayan PW 3. The occurrence is alleged to have taken place at about 3 a.m. in the morning. The factum of occurrence is not in controversy. Tbe place of occurrence is fixed by the witnesses Bans Gopal PW 2, Prem Narayan PW 3 and Kishori PW 4 and evidence of I.0. Kripal Kuril PW 5 who had gone to the spot immediately after the case was registered on the same day at 9.15 a.m. He found the dead body of Phool Singh near the Chabutara of Neem tree which place has been indicated in the site plan Ex. Ka-3. He collected the blood stained earth and plain earth from the place of occurrence. He also recovered 7 tiklies and three pellets from the place of occurrence. 7. Ka-3. He collected the blood stained earth and plain earth from the place of occurrence. He also recovered 7 tiklies and three pellets from the place of occurrence. 7. DURING the cross- examination, the investigating officer Kripal Kuril PW 5 has deposed that he found pellet marks on the eastern wall of the door of courtyard at the height of about 2-3 cubit but the pellets were lying down near the wall at a distance of about 5 cubits towards north from the place 'A' where the deceased was lying. 8. THE place of occurrence is fully established by the evidence of the witnesses-Bans Gopal PW 2, Prem Narayan PW 3, Kishori PW 4, and Investigating Officer-Kripal Kuril PW 5. Dr. S. C. Pandey PW 1 who performed autopsy on the dead body of Phool Singh found Gun-shot wound of entrance. 8 cm x 8 cm deep just below left lower eye lid lateral side below lateral angle of left eye. He took out one shot from right haemisphere 9. THE investigating officer Kripan Kuril PW-5 held inquest on the dead body on 24-12-1977 at 10.30 a.m. after appointing Punchas and prepared inquest report Ex. Ka-3 which also shows that the deceased had received one gun shot injury. It is fully established beyond reasonable doubt that the deceased had received one gun shot injury which was the cause of his death. The only point of determination is as to who were the assailants. The prosecution has given evidence that all the 4 accused appellants, were standing on their roof. They fired shots with their guns at Phool Singh as a result of which he received injury and fell down and succumbed to the injury. In this case, there has not been any recovery of guns. 10. IT is not disputed that the house of the accused is situated towards south-east of the house of Prem Narayan PW 3. The accused persons are alleged to have fired shots from the roof of this house at the Phool Singh who had gone out from the courtyard of Prem Narayan for the purposes of urination and when he reached at a distance of 3-4 paces, the accused persons fired shots at him. There is no evidence to show as to which type of guns were used by the assaillants. Dr. There is no evidence to show as to which type of guns were used by the assaillants. Dr. S. C. Pandey PW-1 was cross-examined regarding the type of the gun from which the shots was fired. He could not tell whether the shots were from Muzzle leading gun or Cartridges gun. The fact, however, remains that the deceased had died because he received gun shot injury and a pellet was taken out from the wound and 3 pellets and 7 tiklies were recovered from the place of occurrence as stated above. The recovery of one pellet from the wound of the deceased and presence of 3 pellets and 7 tiklies at the place of occurrence do not necessarily connect 4 accused persons as being assaillants of the deceased Phool Singh. As already stated above, there has been no recovery of any fire arm weapon from the accused. The only evidence to connect the accused persons being assaillants is the direct evidence of 3 witnesses Bans Gopal PW 2, Prem Narayan PW 3 and Kishori PW 4 who claim to be eye witnesses of the occurrence. 11. THE learned counsel for the appellants Shri G. S. Chaturvedi, levelled criticisms against the findings recorded by the trial court which ignored serious infirmities and improbabilities in the prosecution case. 12. THE first criticism was that the witnesses are inimical to the accused persons. They had every motive to falsely implicate them. The second criticism was that there was no occasion for Bans Gopal PW 2 and Kishori PW 4 and other witnesses named in the first information report to have assembled in the courtyard of Prem Narayan PW 3 in the early hours of winter morning on that fateful day. 13. THE third criticism was that enmity imputed to the accused persons was that Sheetal who was real brother of the reporter Bans Gopal PW-2 had committed the murder of one Baiju Dheemar who was the man of the party of the accused persons. It was argued that in the murder case of Baiju Dheemar, Phool Singh was not an accused person as is admitted to the prosecution witnesses. Sheetal, Ram Swarup, Jhanjhi, Kharelal and Parmanand were accused in that murder case and they were convicted and sentenced by the lower court but were acquitted by the High Court. It was argued that in the murder case of Baiju Dheemar, Phool Singh was not an accused person as is admitted to the prosecution witnesses. Sheetal, Ram Swarup, Jhanjhi, Kharelal and Parmanand were accused in that murder case and they were convicted and sentenced by the lower court but were acquitted by the High Court. It was thus argued that the accused persons could have no motive to commit the murder of Phool Singh who was not involved in the murder of Baiju Dheemar and if they had any motive, they would have committed the murder of Sheetal or Sheetal's brother Bans Gopal to take revenge of the murder of there man of their party. 14. THE fourth criticism was that the witnesses, who claimed to be sitting inside the court yard at the relevant time had no opportunity to see the assailants. The fifth criticism was that the prosecution version of 4 shots having been fired from the roof of the accused persons is not probabilised by the facts and circumstances of the case. It was argued that the 4 assaillants are alleged to have fired shots from their guns from a distance of 32 paces and towards direction of the deceased Phool Singh who was at the relevant time near the Neem Tree which had large thick branches putting obstruction at their aim of firing shots at that moment. It was also alleged that tiklies could not have travelled such a long distance nor the deceased could have received injury of this type from the shots fired from the roof of the first floor of house of the accused persons. 15. The submission of the learned counsel, therefore, was that the accused in any view of. the matter cannot be held to have been connected with the offence of murder of Phool Singh. 16. LET us take the criticisms levelled by the learned counsel for the appellants. Bans Gopal PW 2, who is the reporter, has specifically admitted in his cross examination that he had enmity with the accused persons and that after the murder of Baiju Dheemar, the accused had attempted to commit murder of his younger brother Param Lal. A case under section 107 CrPC was also instituted against Bans Gopal PW 2, Prem Narayan, PW 3 and Kishori PW 4 besides Chetram. A case under section 107 CrPC was also instituted against Bans Gopal PW 2, Prem Narayan, PW 3 and Kishori PW 4 besides Chetram. Govind Das and Kalicharan and in that case the accused had given evidence against these persons. Prem Narayan PW 3 is the son of Sumera who is real brother of Mohan Lal father of Bans Gopal. Though Prem Narayan PW 3 and Kishori PW 4 have denied enmity against the accused persons but it is borne out from the evidence that they belong to the reporter Bans Gopal's group and are interested witnesses. It may however, be noted that enmity is a double edged weapon. Whereas the accused may rely on it in support of their plea of false implication, the prosecution on the other hand may legitimately argue that this provided that necessary motive for the offence. In case of inimical and interested or partisan witnesses scrutiny is one of the caution. This, however, does not mean that evidence of interested and partisan witness has necessarily to be discarded. The approach of the court in such case should be while evaluating the prosecution evidence to find whether the witnesses are reliable and their testimony finds corroboration from independent sources. In cases of party factions, there is generally speaking a tendency on the part of the prosecution witnesses to implicate some innocent persons also alongwith guilty ones. The court has to sift the evidence and after a close scrutiny with anxious care and caution to try to come to a judicial conclusion as to who out of the accused persons can be safely considered to have taken part in the assault. In the present case, the prosecution witnesses have assigned the role of firing shots to all the accused appellants, hence in this case, we are not called upon to find out the role of the assailants who had really fired shots at Phool Singh. 17. THE testimony of all the eye witnesses, has to be tested on the anvil of reliability and in the context of over all circumstances attending the case. The criticisms, second to fifth, levelled by the learned counsel for the appellants are interlinked and inter-connected and thus, they are being discussed together. 18. IN order to scrutinise evidence of the witnesses, we have to first of all look to the genesis of the prosecution story. The criticisms, second to fifth, levelled by the learned counsel for the appellants are interlinked and inter-connected and thus, they are being discussed together. 18. IN order to scrutinise evidence of the witnesses, we have to first of all look to the genesis of the prosecution story. The occurrence took place in the early winter morning of 24th December 1977, in front of the door of courtyard of Prem Narayan PW 3. The eye witnesses are said to be sitting in the courtyard of the house of the Prem Narayan at the relevant time. As already seen, these are witnesses belonging to one faction and are inimical to the accused. IN case where it is explicable as to why all the interested and partisan witnesses reached the scene of occurrence, their residential tenements being close-by, their evidence cannot be discarded merely on the ground of interestedness or partisanship provided their evidence inspires evidence. The learned counsel for the appellants vehemently argued that the prosecution has not given any satisfactory explanation for the presence of the witnesses in the courtyard of Prem Narayan at the relevant time and that no other person even inmates of the house of Prem Narayan and other nearby residential houses reached the scene of occurrence. In order to strengthen its case, the prosecution has tried to introduce story that the witnesses were taking heat from the fire of Kaura in the court-yard of Prem Narayan at the relevant time. This does not find place in the First Information Report nor in the statement under section 161 CrPC. On being cross-examined on this point, Prem Narayan PW 3 stated that it was a trivial matter, therefore, the Investigating Officer was not told about it. The Investigating Officer was also not shown the place where Prem Narayan and other witnesses were taking heat from the fire of Kaura. No doubt this omission by itself would not be sufficient to discard prosecution story. It assumes importance in the context of over all circumstances of the case. As already stated that the occurrence has taken place in the morning hours of that fateful day and no inmates of the nearby residential houses nor even of house of Prem Narayan came to the scene of the occurrence. It assumes importance in the context of over all circumstances of the case. As already stated that the occurrence has taken place in the morning hours of that fateful day and no inmates of the nearby residential houses nor even of house of Prem Narayan came to the scene of the occurrence. Only Prem Narayan PW 3, Baas Gopal PW 2 and Kishori PW 4, reached the scene of occurrence and they claim to have seen the accused persons firing shots with their guns at Phool Singh who was also sitting with them in the courtyard and had gone out of the courtyard for the purpose of urination. It has thus to be scrutinised whether there eye witnesses had really assembled in the courtyard of Prem Narayan as alleged. 19. IT is only when their presence in the courtyard at the relevant time is accepted, then only the question of their witnessing the occurrence would arise. IT was argued that taking heat from Kaura had deliberately been introduced during the evidence by the prosecution which on facts and circumstances, is an after thought. This contention of the learned counsel for the appellant cannot be brushed aside easily. The purpose of assembling in the court yard of Prem Narayan as disclosed by the prosecution does not appear to be convincing during early winter hours. Bans Gopal, reporter PW 2, has admittedly enmity with the accused persons and he has every motive to nominate them falsely on account of enmity. Kishori PW 4 is a labourer and his house is situated after 10-15 houses towards the south from the courtyard. In his cross-examination, he has tried to show that as Prem Narayan had asked him to do irrigation work and he had gone to tell him that he was not free for the said work, even then this witness had stayed back to take heat from Kaura and this does not seem to be convincing at all. 20. THE learned counsel for the appellants also urged that the testimony of the eye witnesses regarding the occurrence does not fit in the prosecution story as set up. It was rightly argued that witnesses even if they were sitting in the courtyard could not see the accused persons standing on their roof while they were sitting and taking beat from Kaura. It was rightly argued that witnesses even if they were sitting in the courtyard could not see the accused persons standing on their roof while they were sitting and taking beat from Kaura. Prem Narayan PW 3 has categorically admitted in his cross examination that while sitting around Kaura, the place on the roof where the accused fired was not visible. The Investigating Officer Kripal Kuril PW 5 has deposed in his cross examination that the witnesses had told him that they had seen the occurrence from the place where they were sitting and this place has been indicated by the Investigating Officer in the site plan by letter-'B'. It would thus appear that even if the witnesses were sitting at place 'D' they could not have seen the occurrence. These prosecution witnesses had, however, tried to show that when Phool Singh had gone out of the courtyard at a distance of about 2-3 paces they heard shouts from the roof of the accused "Maro, Yahi Sheetal Ka Shala Hai". On hearing this 'Lalkara' shouts, they got up and went near the wall in the south of the courtyard and then saw the accused persons firing at Phool Singh (deceased). The learned counsel for the appellants has rightly argued that there was no occasion for the accused persons to have given 'Lalkaras'. According to the prosecution case, all the 4 accused were on the roof of their house and after given Lalkara as mentioned above, they fired shots at deceased Phool Singh. It is significant to note that in the first information report it is mentioned that all the accused persons fired shots simultaneously (Ekbargi) at Phool Singh who cried "Mar Dala" and fell down on the spot. The first information report further proceeds to state that on the 'Lalkaras' of the accused persons, the reporter and other witnesses got up and saw the accused persons standing with their guns on the roof and after shots were fired, the witnesses took shelter behind the wall and thereafter they did not know as to where the accused had fled. This would indicate that after firing of the shots, the deceased had cried and the witnesses could not see as to where the accused had gone. The deceased Phool Singh had received only one gun shot injury and he succumbed to the, said injury immediately on the spot. This would indicate that after firing of the shots, the deceased had cried and the witnesses could not see as to where the accused had gone. The deceased Phool Singh had received only one gun shot injury and he succumbed to the, said injury immediately on the spot. It has come in the statement of Dr. S. C. Pandey PW 1 during cross- examination that there was least probability of the deceased having cried after receiving injury. It is thus evident that deceased Phool Singh could not have raised any alarm or hue and cry after -he had received gun shot injury. The occurrence according to the prosecution case itself took place at a spur of moment. It is also evident that the accused before taking their position must have located Phool Singh. They were waiting on their roof to find opportunity to shoot at Phool Singh. The moment he emerged out from the courtyard, the shots were fired simultaneously. There was no time lag between firing of the shots and the deceased falling down after sustaining the gun shot injury. There was no occasion nor any necessity for the accused persons to have shouted 'Yahi Sheetal Ka Shala Hai, Maro Sale Ko' because they were already standing on the roof of their house after having located Phool Singh. The very fact that Bans Gopal PW 2 has implicated all the accused who are father and sons and who were the only adult members of the family of the accused which clearly indicates his anxiety to rope in all the members of the family. The allegations of participation of giving Lalkaras are some time made only to show additional overt acts so as to take in all the persons and make out the ingredients of an offence against all the accused. In the present case also it is clear that the prosecution has tried to rope in all the members of the family of the accused persons and only other adult male member who was left out was in jail at that time who was fourth son of accused Gangadeen. It has already been seen above that only one pellet in the wound of the deceased and three pellets and 7 tiklies were found from the scene of occurrence. It does not in any way go to show that four assailants had fired shots at deceased as alleged. It has already been seen above that only one pellet in the wound of the deceased and three pellets and 7 tiklies were found from the scene of occurrence. It does not in any way go to show that four assailants had fired shots at deceased as alleged. The prosecution has set up the theory of 'Lalkaras' to show the presence of the 4 accused persons on their roof and to enable the eye witnesses to get up and then to see the accused persons standing on their roof. In fact, there was no occasion or necessity for the accused persons to have exhorted each other by making; Lalkara "Yahi Sheetal Ka Shala Hai, Maro Sale Ko" and then to fire shots; at Phool Singh. 21. AFTER having carefully scrutinised the evidence, we are of the opinion that the prosecution story regarding 'Lalkara' by the assailants is not at all believable It may also be mentioned here that in the first information report, it is specifically stated that witnesses could not see as to where the accused had fled in the evidence, however, an attempt has been made to show that on the challenge by the witnesses, the accused persons descended through stairs. The evidence: of these witnesses and over all circumstances in which the deceased was shot, go to show that these witnesses were not present at all at the place they alleged to be and they had no opportunity to see the assailants at the time when the deceased Phool Singh was shot at. The submission of the learned counsel for the appellants, that the prosecution story does not fit in the circumstances, has substance. The evidence of Dr. S. C. Pandey PW 1 and recovery of only 3 pellets and 7 cartridges from the scene of occurrence is not in conformity with the prosecution case that all the 4 accused persons had fired with their guns at Phool Singh from their roof. The distance of roof of the accused is 32 paces. The testimony of Dr. Pandey goes to show that the ante mortem injury by the gun shot could have been caused From lower level or from the same level because the direction of the wound was upward. No doubt Dr. Pandey has on re-examination by the prosecution stated that if the bullet hits bony part it may change its direction. The testimony of Dr. Pandey goes to show that the ante mortem injury by the gun shot could have been caused From lower level or from the same level because the direction of the wound was upward. No doubt Dr. Pandey has on re-examination by the prosecution stated that if the bullet hits bony part it may change its direction. This, however, does not go to help the prosecution because Dr. Pandey deposed categorically that the direction of the wound was not down ward and it was not possible that the assailants would have been at the higher level and deceased would have been at lower level at distance of 8 to 15 ft. This evidence coupled with aforesaid circumstances, belies the prosecution story regarding the shots having been fired by all the accused persons from the roof of the first floor of their house. 22. REGARDING the criticism that the accused persons could have no motive to have committed murder of Phool Singh who was not involved in the murder of Baiju Dheemar and that if they could have any motive it would have been against Sheetal who was involved in the murder case of Baiju Dheemar and had been acquitted, or Sheetal's brother Bans Gopal to take revenge, this limb of argument is not of much consequence. ? Motive is only an important link in a case but it is never conclusive. It provides a link in the probability of the case. It may also be noted that absence of motive is not ground for discarding occular testimony of the eye witnesses. In the present case, we have already seen above that the testimony of eye witnesses in the present case suffers from serious infirmities and bristles with improbabilities which cannot be ignored at all. It has already been discussed above that the accused persons had no occasion to make Lalkara 'Yahi Sheetal Ka Sala, Maro Salo Ko'. Deceased Phool Singh was brother in-law of Sheetal and was admittedly not accused person in the murder trtal of Baiju Dheemar. Bans Gopal PW 2 who is brother of Phool Singh, has stated in his cross examination that it was Phool Singh who had actually committed murder of Baiju Dheemer and because it was not known to any one, hence, Sheetal and others had been falsely implicated. Bans Gopal PW 2 who is brother of Phool Singh, has stated in his cross examination that it was Phool Singh who had actually committed murder of Baiju Dheemer and because it was not known to any one, hence, Sheetal and others had been falsely implicated. He also claims to have witnessed the occurrence of murder of Baiju at 112 noon at the door of Ram Swarup. This part of the statement of Bans Gopal PW 2 has persuaded the learned trial court to accept that the accused persons had taken revenge by killing Phool Singh which fact had come to their knowledge later on. Thus, the trial court opined that there was strong motive for the murder of Phool Singh. We are not persuaded to accept this reasoning. In the first information report, itself, there is mention about: enmity with the accused on account of fact that Sheetal, who was brother of the reporter, had committed murder of Baiju Dheemar and on account of that enmity the accused persons have committed the murder of Phool Singh, brother-in-law of Sheetal. The statement of Bans Gopal reporter PW 2 during his cross examination regarding Phool Singh having committed murder of Baiju is obviously an after-thought and no implicit reliance can be placed on this statement. Apart from it, the thrust of the prosecution case is that the accused persons had committed murder of Phool Singh after exhorting 'Yahi Sheetal Ka Sala Hai, Maro Sale ko' on account of the enmity as Sheetal had committed murder of Baiju Dheemar. 23. IT may, however, be mentioned that in the present case when eye witnesses have been produced to give occular evidence of the incident, motive is not of much imortance and we are not required to discover the motive for the offence. Admittedly, there is enmity between the parties and it cuts both ways as has been mentioned by the trial court. The evidence regarding existence of motive which operates in the mind of assassin is very often not within the reach of other:- The motive may be known to the assassin only and to no one else-See Subedar Tiwari v. State of U. P., AIR 1989 SC 733 . The fate of the case hinged not on motive but on the occular testimony of the eye witnesses. The fate of the case hinged not on motive but on the occular testimony of the eye witnesses. Occular testimony of the eye witnesses, as already discussed above, is not acceptable to us on the facts and circumstances of the case. Witnesses may lie but not the circumstances. Witnesses were not present at the relevant time and the occurrence had not taken place in the manner as alleged by the prosecution. No doubt, on account of enmity with the accused the suspicion fell on the accused but suspicion, however strong, is no substitute for proof. The very fact that only one pellet was found in the wound of the deceased and only three pellets alongwith .7 tiklies were found at the place of occurrence would certainly indicate that the number of assailants was not 4. The prosecution has not assigned role to the accused persons individually. Even if it is assumed that one of the accused or even 2 of the accused might have fired shots at Pool Singh, even then it: cannot be held from the allegations and evidence on record as to which of the accused was involved in the offence. No doubt, the prosecution came with the case that the occurrence had taken place at about 8 a. m. and the first information report was promptly lodged at 9.15 a.m. on the same day. This however, would have been strong circumstance to buttress the prosecution case but unfortunately the prosecution has not come with a straight forward case and has chosen to rope in all the four accused persons. In any view of the matter, the participation of the four accused in the offence as alleged is not established by the evidence. The place of occurrence, though has been fixed up but on evidence and circumstance of the case, time of the occurrence becomes doubtful. IT may also be mentioned that the deceased was not wearing any shoe or Chappal nor they were found nearby the place of occurrence. This also leads us to cast doubt on the time of occurrence. The testimony of eye witnesses does not find support from any independent source. The testimony of Dr. S. C. Pandey PW 1 also does not go to lend any support to the prosecution case about the participation of all the four accused persons in the offence. This also leads us to cast doubt on the time of occurrence. The testimony of eye witnesses does not find support from any independent source. The testimony of Dr. S. C. Pandey PW 1 also does not go to lend any support to the prosecution case about the participation of all the four accused persons in the offence. At the time of autopsy on the dead body, 18 to 36 hours had elapsed. Though in his examination-in-chief Dr. Pandey PW 1 stated the deceased could have died on 24-12-1977 at 8 a. m. which is in conformity with the prosecution case. However, in his cross- examination he deposed that the death of deceased Phool Singh could have been possible in the intervening night of 23/24th December, 1977 at about 2-3 a. m. IT however, is borne out definitely from his evidence that deceased did immediately after receiving gun shot injury. Thus, the evidence of doctor does not unequivocally support the prosecution case about the occurrence having taken place at 8 a. m. as alleged. 24. AFTER giving our careful consideration to the arguments advanced by the learned counsel for the parties and having thoroughly scrutinised the evidence on record, we do not find ourselves; in agreement with the findings of the trial court holding the accused persons: guilty for the offence under Section 302/34 IPC. The prosecution has failed to establish its case to the hilt and beyond reasonable doubt. Where two views are possible on the evidence one pointing to the guilt of the accused and the other to his innocence, the latter view which is favourable to the accused has to be accepted. At any rate, a reasonable doubt is entertained on the evidence of the prosecution regarding the complicity of the four accused in the alleged offence and thus the accused are entitled to benefit of doubt. In the result, the appeal succeeds and is allowed. The order of conviction and sentence under section 302/.34 IPC of accused appellants in Sessions Trial No. 89 of 1978 passed by the III Addl. Sessions Judge, Hamirpur dated 8-12-1979, is hereby set-aside. 25. THE accused are on bail. They need not surrender. Their bail bonds are discharged. Appeal allowed.