Judgment : O.P. Pradhan, J. 1. FOR an occurrence which took place on the night intervening 20th and 21st November, 1977 at about 2-345 hours in which one Dulichand was murdered, appellants Anokhey Lal and Bhagwan Swaroop were tried in the Court of IV Additional Sessions Judge, Aligarh who convicted the appellant Anokhey Lal under section 302 IPC, and appellant Bhagwan Swaroop under section 302 read with section 34 IPC, and sentenced each of them to undergo imprisonment for life vide judgment and order dated 30-6-l979. Against their conviction and sentence, both the convicts have preferred separate appeals, Criminal Appeal No. 2044 of 1979 is by Anokhey Lal while Criminal Appeal No: 2045 of 1979 is by Bhagwan Swaroop. Both these appeals are being disposed of by a common judgment. 2. IN a nut-shell, the prosecution case is that appellant Anokhey Lal is father of appellant Bhagwan Swaroop and they are residents of Chirwara, police station Zarif Nagar, district Budaun. The house of Dulichand who lost his life as a result of the occurrence, is situate in village Sankara within the circle of police station Dadon, district Aligarh. In the night of occurrence, i. e., the night intervening 20th and 21st November. 1979, Dulichand was sleeping in the gallery of his house on a cot. His son, Kalicharan (PW 3) was sleeping in the verandah to the south of the court yard of this house. The wife of Dulichand and his daughter, Mithilesh were sleeping in the rooms adjoining the said gallery towards east and west respectively. A hurricans lantern was burning in the gallery. At about 11.45 P.M., three miscreants armed with fire-arms sneaked into the court yard of the house by scaling the rear wall of the back portion of the house. Kalicharan and Dulichand were awakened by the sound caused by the movements of these miscreants. Dulichand tried to get up from his cot but he was fired upon by one of these miscreants from a country made pistol. He sustained a fire-arm injury on his neck and some pellets also struck the iron gate of the house. Dulichand succumbed to the lire-arm injury. Kalicharan (PW 3) flashed his torch towards the said gallery and raised alarm. He could see the miscreants in the light of his torch and lantern as also moon-light. He sustained a fire-arm injury on his neck and some pellets also struck the iron gate of the house. Dulichand succumbed to the lire-arm injury. Kalicharan (PW 3) flashed his torch towards the said gallery and raised alarm. He could see the miscreants in the light of his torch and lantern as also moon-light. He recognised two of the miscreants who were none-else but the appellants Anokhey Land and his son Bhagwan Swaroop. Anokhey Lal was armed with a country made pistol while Bhagwan Swaroop carried a gun and the third miscreant who could not be recognised, was armed with a country made pistol. All the three miscreants opened the iron gate of the house and managed to escape towards west. However, they were seen fleeing from the house by Shankar Lal (PW 7), Nabi Sher (PW 5) and Kishanpal Singh in the light of the torches and moon-light. They also recognised Anokhey Lal and Bhagwan Swaroop among the miscreants. Kalicharan (PW 3) then wrote the first information report at his own house and carried it to the police station Dadon the very same night and lodged it there at 1.45 A M., on 21-11-1977. A case was registered on the basis of the first information report and investigation was started by Rakeshapal Singh (PW 8) who was Sub-Inspector of police present at the police station. After interrogating Kalicharan at the police station, he reached the place of occurrence and found the dead body of Dulichand at the site of the occurrence. Due to darkness, he did not conduct the inquest in the night. After sun-rise, he held inquest on the dead body and despatched the dead-body of Dulichand for post-mortem-examination along with (he relevant papers. During local inspection of the place of occurrence, Rakshpal Singh (PW 8) who had started the investigation, found a spent cartridge and pieces of pellets. He also seized blood stained Takiya, Gadda and Chadar from the cot,, of the deceased and also collected bloodstained picees of bricks from the of the gallery. 3. DR. S. N. Agarwal (PW 4) conducted autopsy on the dead-body of Dulichand. He found the following ante-motem injuries on the dead body : 1. Lacerated wound of gun-shot of entry 1 1/2" x 1" x neck cavity deep on the front and left side of the neck, 1 3/4" below angle of mandible and 1/2" above the left Sterne joint. S. N. Agarwal (PW 4) conducted autopsy on the dead-body of Dulichand. He found the following ante-motem injuries on the dead body : 1. Lacerated wound of gun-shot of entry 1 1/2" x 1" x neck cavity deep on the front and left side of the neck, 1 3/4" below angle of mandible and 1/2" above the left Sterne joint. Blackening and tattooing were present and the wound was in an area of 3" x 1 1/2". Margins were inverted. - 2. Lacerated wound of gun-short of exit 4" x 1 1/2" x bone deep on right side neck, 2" above the right collar bone, outer 1/3" extending upward, 1/2" behind the lobule of right ear. Margins were everted. Blackening and tattooing were not present around the wound. Fracture of mandible of right side as also the fracture of mastoid process was present. On internal examination, larynx and trachea were found badly lacerated. Desophagus was also badly lacerated and heart was empty. The stomach contained 2 ounces of semi-digested food and bladder was half full. In the opinion of the doctor, the death of Dulichand had occurred due to shock and haemorrhage resulting from the above injuries'. 4. APPELLANT Anokhey Lal was arrested on 14-12-1977 and Bhagwan Swaroop surrendered in the Court of the Chief Judicial Magistrate, Aligarh on 5-1-1978. After completing the investigation, S. O. Baleshwar Singh (PW 6) who had conducted the remaining investigation, submitted the charge sheet against both the appellants. 'Both the accused-appellants pleaded not guilty to the charge of murder and claimed to have been falsely implicated since the ex parte decree which had been passed in the Civil suit brought by Dulichand for recovery of money against accused-appellant Anokhey Lai had been set aside at his instance. 5. THE prosecution examined Sheo Ram Sharma (PW 1), who had prepared the chik report at the police station, Gulab Singh (PW 2), who was a police constable at the police station Dadon and had carried the dead-body to the mortuary, Kalicharan (PW 3) being the complainant and an eye-witness of the occurrence, Dr. 5. THE prosecution examined Sheo Ram Sharma (PW 1), who had prepared the chik report at the police station, Gulab Singh (PW 2), who was a police constable at the police station Dadon and had carried the dead-body to the mortuary, Kalicharan (PW 3) being the complainant and an eye-witness of the occurrence, Dr. S. N. Agarwal (PW 4), who conducted autopsy on the dead-body of Dulichand, Nabi Sher (PW 5) and Shanker Lal (PW 7) who claimed to have seen the appellants fleeing from the house of the deceased immediately after the occurrence, Baleshwar Singh (PW 6) and Rakeshapal Singh (PW 8), the Investigating Officers of the case. 6. THE accused-appellants did not adduce any oral evidence in defence. 'However, they filed certain papers in their defence. After examining the evidence adduced before him, the learned Sessions Judge found both the accused- appellants guilty for the offence of murder of Dulichand and convicted and sentenced each of them as already indicated at the outset. 7. WE have heard the learned counsel for the appellants as also the learned Additional Government Advocate and perused the material placed on the record. 8. BEFORE we proceed to examine and analyse the relevant evidence adduced in the case, we would like to dwell upon the motive which has also been set up by the prosecution, and the topography of the house of the deceased Dulichand. According to the prosecution, Dulichand had done business of Khandsari about 9-10 years before the occurrence in village Chirwara in partnership with accused-appellant Anokehy Lal and some money had become due from accused-appellant Anokhey Lai to the deceased Dulichand. However, this money not having been paid, a civil suit had to be instituted by Dulichand, which culminated in a decree for about Rs. 9,000/- against Anokhey Lal Not only this, Anokhey Lal had also stolen at one point of time some articles of Dulichand who lodged a first information report at police station Atrauli, district Aligarh against Anokhey Lal. Accordingly, Anokhey Lal bore enmity and grudge against Dulichand. So far as this part of the prosecution case is concerned, it finds place in the first information report lodged by Kalicharan (PW 3) who has also spoken about these facts during his evidence in Court. Accordingly, Anokhey Lal bore enmity and grudge against Dulichand. So far as this part of the prosecution case is concerned, it finds place in the first information report lodged by Kalicharan (PW 3) who has also spoken about these facts during his evidence in Court. Coming now to the topography of the house of the deceased, it appears from the evidence of Kalicharan (PW 3) and Rakshpal Singh (PW 8) who -had prepared a site-plan of the place of occurrence, that the house of Dulichand is situate in village Sankara and faces north. There is a lane running east-west in front of this house whose main door also opens in the said- lane. There is a verandah on the southern-most end of this house and to the east of this verandah on the south-eastern corner, there is an open space bounded by walls on all the sides. There is an opening in the said verandah with door-planks. To the north of the said verandah, there is a court- yard and to the north of this court-yard, there are two rooms, one on eastern and the other on western side and there is a gallery in between these two rooms. These rooms have openings in the said gallery which is about 12' north-south and 7 1/2 east-west. The iron gate of the house opens in the lane running east-west. 9. THAT Dulichand died of violence is indubitable. In fact it has been established by the evidence of Dr. S. N. Agarwal (PW 4) read with post- mortem examination report (Ex Ka 6) that Dulichand died at about midnight intervening November 20 and 21, 1977 of fire arm injury which was sufficient in the ordinary course of nature to cause his death. It further appeared from the internal examination of the deceased that the stomach contained about 2 ounces of semi-digested food and that bladder was half full. It also goes to suggest that the death of Dulichand must have taken place at about the time alleged by the prosecution. The defence has also not challenged that the death of Dulichand was homicidal. The question which needs consideration in these appeals is whether the appellants were responsible for the commission of murder of Dulichand. 10. It also goes to suggest that the death of Dulichand must have taken place at about the time alleged by the prosecution. The defence has also not challenged that the death of Dulichand was homicidal. The question which needs consideration in these appeals is whether the appellants were responsible for the commission of murder of Dulichand. 10. THE prosecution case rests on the oral evidence of Kali Charan (PW 3), Nabi Sher (PW 5) and Shanker Lal (PW 7) As already indicated earlier, Nabi Sher (PW 5) and Shanker Lal (PW 7) claim to have seen the appellants fleeing from the main door of the house of the deceased immediately after the occurrence. We propose to deal with the evidence of these prosecution witnesses before we take up the central evidence of Kali Charan (PW 3). According to Nabi Sher (PW 5) he was present at the betel shop of Shanker Lal (PW 7) which is situate at the bus stop. The last bus, according to these prosecution witnesses, used to reach this bus stop at about 11.30 P.M. Nabi Sher (PW 5) claims to have gone to this shop in order to purchase Biri at that hour of the night. He would have us believe that he remained sitting at the shop of Shanker Lal (PW 7) for about an hour merely on the asking of Shanker Lal (PW 7). Both these prosecution witnesses claim to have started from this betel-shop at about 11.30 P.M. for their houses which are adjacent to each other. According to them, as they neared their houses they heard the report of a gun-fire as also hue and cry. They claim to have rushed towards the side from which this hue and cry and the report of gun-fire emanated. Shanker Lal (PW 7) claims to have a torch with him and these two witnesses claim to have seen the appellants from a distance of 10-15 paces while they were coming out of the house of the deceased. The appellants carried fire-arms with them. Kali Charan (PW 3) in his deposition clearly stated that he raised alarm no sooner the culprits had left his house after committing the crime in question. He further Stated that only one gun-shot was fired at the time of occurrence. The appellants carried fire-arms with them. Kali Charan (PW 3) in his deposition clearly stated that he raised alarm no sooner the culprits had left his house after committing the crime in question. He further Stated that only one gun-shot was fired at the time of occurrence. We have it from the evidence of S. I. Rakshpal Singh (PW 8) that the distance between the houses of Shanker Lal and Dulichand deceased is 85 paces. It would, therefore, appear to follow that these two prosecution witness who had heard the report of gun-fire as also hue and cry near about their houses covered a distance of about 70-75 paces in such a short time that the culprits had not even managed to flee from the house of the deceased after committing the crime in question. Kali Charan (PW 3) had clearly deposed that the culprits immediately left the house after the gun-shot was fired at his father. The version given by these prosecution witnesses, namely, Nabi Sher (PW 5) and Shanker Lal (PW 7) that they happened to reach near about the main-gate of the house of the deceased so that they could see the appellants fleeing from the said house' appears much too improbable and cannot be easily accepted. Nabi Sher (PW 5) has admitted during cross-examination that his sister is married to Munshi Chaukidar who is the uncle of Noor Mohammad and that Dulichand deceased and Aoor Mohammad had, a crusher in partner ship. According to his own showing, he was brought up by his sister and brother-in-law in village Sankara and he has been cultivating their fields. It appears from a perusal of the inquest-report (Ex, Ka. 9) that Noor Mohammad figured as a Panch witness therein. Moreover, Nabi Sher (PW 5) had hardly any business to remain sitting at the shop of Shanker Lal (PW 7) at that hour of the night in the month of November. Similarly, Shanker Lal (PW 7) also figured as a Panch witness in the inquest report (Ex. Ka. 9). He expressed his ignorance about the relationship between Munshi Chaukidar and Nabi Sher (PW 5). He further stated that he was frightened as soon as he saw three culprits with fire-arms and, therefore, stood still at the same place, yet he would have us believe that he flashed his torch at the culprits in order to recognise them. Ka. 9). He expressed his ignorance about the relationship between Munshi Chaukidar and Nabi Sher (PW 5). He further stated that he was frightened as soon as he saw three culprits with fire-arms and, therefore, stood still at the same place, yet he would have us believe that he flashed his torch at the culprits in order to recognise them. From what has been said above, the oral evidence of Nabi Sher (PW 5) and Shanker Lal (PW 7) does not inspire confidence and the same is accordingly liable to be eschewed from consideration. 11. COMING to the oral evidence of Kali Charan (PW 3), it has to be recounted that he was sleeping in the verandeh situate in the south of the house and an open court-yard intervenes this verandah and the gallery wherein the deceased was sleeping on a cot. He claims to have awakened on the movements oft the culprits who came into the house from the rear portion. It was 11.45 P.M., when the occurrence is said to have taken place in the month of November. He is the son of the deceased and the informant of the case. According to him, the three culprits moved towards the gallery and one of them, namely, appellant Anokhey Lal fired a shot at the deceased from his country made pastel and thereafter all the three culprits left the house through the main gate whose shutters were opened by the appellant Bhagwan Swaroop. He further claims to have flashed his torch at the culprits and recognised appellants Anokhey Lal and Bhagwan Swaroop, while the third was not known to him from before. 12. THE testimony of Kali Charan (PW 3) has to be subjected to a very careful scrutiny with extreme care and caution since he happens to be the son of the deceased and, therefore, an interested witness. If on such scrutiny, his testimony is found relied upon, in the circumstances of the case, to base a conviction (See State of U. P. v. Vinod Kumar, AIR 1992 SC 1011 ). Kali Charan (PW 3) claims to have seen the culprits on being awakened by the sound of their movements. He, however, admits that he did not question them out of fear since all the three culprits carried fire arms with them. Kali Charan (PW 3) claims to have seen the culprits on being awakened by the sound of their movements. He, however, admits that he did not question them out of fear since all the three culprits carried fire arms with them. He would have us, however, believe that he flashed his torch towards them in order to recognise the culprits, no sooner the gunshot and been fired and that he recognised appellants Anokhey Lal and Bhagwan Swaroop in the torch-light as also the light of lantern which was burning in the gallery. He further admits in his cross-examination that none of the culprits attempted his fire-arm at him nor any of them came towards his cot. According to his own showing, a lone gun-shot was fired at the time of occurrence and the culprits immediately left the house through the main gate. It passes beyond ones comprehension that he would have flashed his torch at the culprits even though he had not dared to question them while they were moving towards the gallery. In the face of the fire-arms with ail the culprits, it does not stand analysis that he would have flashed his torch at them in order to fix up their identify. Had he done so, the culprits would not have spared him either, since he was the lone eye witness of the occurrence. 13. THE presence of Kali Charan (PW 3) of the time and place of occurrence also appears to be a little doubtful inasmuch as he himself admits in his evidence that he and his wife lived in the other house before the occurrence. He would have us believe that he was present in the house where the occurrence took place because his wife had gone to her parents' house about a month back It is clear from his evidence that his father had two hous.es and the other house is at a distance of about 1 1/22 furlongs in the main Abadi of Village Sankara. THE elder brother of Kali Charan (PW 3) also lives in the other house. It appears more probable that he came to the house of occurrence afterwards and reported the master to the police. Even though he claims to have prepared the written report himself at the house, yet there is intrinsic evidence to show that the first-information report (Ex. Ka 1) was ante-timed. It appears more probable that he came to the house of occurrence afterwards and reported the master to the police. Even though he claims to have prepared the written report himself at the house, yet there is intrinsic evidence to show that the first-information report (Ex. Ka 1) was ante-timed. According to Kali Charan (PW 3), he prepared the written report at the house of occurrence after 45 minutes and carried it to the police station and lodged the same there at 1.45 A.M. on 21-12-1977. In this written report. he has stated that his father Dulichand got the fire-arm injury on the right side of the neck. We further find from the written report that it mentions that the dead body is lying at the house. If the written report had been prepared at the house as claimed by Kali Charap (PW 3), this part that the dead body was lying at the house would not have found place. Kali Charan (PW 3) is a literate man having read up to High School. During post-mortem-examination, the deceased was found to have received one gun-shot wound of entry on the left side of the neck, and on the right side of the neck there was found one gun shot wound of exit. However, during the inquest held by S.I. Rakshapal Singh (PW 8), only one gun-shot wound was noticed on the right side of the neck. Likewise, in the diagram of the dead body, the gun shot wound was shown on the right side of the neck (See Ex. Ka 11). THE doctor who held autopsy on the dead body of Dulichand has noted on Ex. Ka 11 that injury no. 1, i.e. gun shot wound of entry on the left side of the neck as noted in the post-mortem-examination report has not been shown and mentioned by the police. This endorsement on Ex. Ka 11 is dated 22-11-1977 when the post-mortem- examination was conducted by the doctor on the dead body. S.I. Rakshapal Singh (PW 8) stated that he held the inquest at 7 A.M. after sun-rise even though he had reached the place of occurrence at about 5 A.M. Since there was no adequate light at that hour, he held the inquest after sun-rise. S.I. Rakshapal Singh (PW 8) stated that he held the inquest at 7 A.M. after sun-rise even though he had reached the place of occurrence at about 5 A.M. Since there was no adequate light at that hour, he held the inquest after sun-rise. Since only one gun-shot wound had been noticed and shown in the inquest report on the right side of the neck, it was also mentioned in the Written report (Ex. Ka 1) that the deceased had received a gun shot injury on the right side of the neck. This goes to indicate that the written report (Ex. Ka 1) was prepared after the inquest was held and, therefore, the lone gun-shot injury in the two, namely, the inquest report and the written report, tally with each other. Kali Charan (PW 3) admits that he already knew that his father had received the gun shot wound on the right side of the neck since he had seen the injury before preparing the written report, kali Charan (PW 3) also admits that he had told the Investigating officer that his father got the fire-arm injury on the right side of the neck. This version of Kali Charan (PW 3) does not fit in which the ante-mortem injuries found during post mortem examination by Dr. S. N. Agarwal (PW 4). His testimony is accordingly inconsistent with the medical evidence brought on record. 14. NOT only this, in the written report it has been mentioned by Kali Charan (PW 3) that one of the three culprits fired a gun shot at his father. Had he recognised appellant ( Anokhey Lal as the real assailant who had fired at his father, there was no occasion in say so in the written report. It was at fag end of the written report that he mentioned that the culprit who fired at his father was appellant Anokhey Lal. This again is not the natural human conduct if Kali Charan (PW 3) had really seen the appellant Anokhey Lal firing at his father. From what has been said above, the testimony of Kali Charan (PW 3) does not appear to be intrinsically reliable. It further appears from column no. 1 of the inquest-report (Ex. Ka 9) that the timings therein were filled up with a different ink and the timing which had to be incorporated in column no. From what has been said above, the testimony of Kali Charan (PW 3) does not appear to be intrinsically reliable. It further appears from column no. 1 of the inquest-report (Ex. Ka 9) that the timings therein were filled up with a different ink and the timing which had to be incorporated in column no. 3 of the inquest-report remains unfilled altogether. This and the aforesaid factors go to demonstrate that the first-information report came to be prepared after the inquest was held and it has to be found that the first information report was ante timed. 15. IT further seems from a consideration of the facts and circumstances brought on the record that it was possibly a case of hit and run and the culprit could not be detected. The reasons for this are not far to seek, Kali Charan (PW 3) admits in his cross-examination 'that his father could not raise any voice. This is also indicative of the fact that some body fired at him while he was asleep. IT further appears from the testimony of Kali Charan (PW 3) that the deceased was licence-holder of a revolver since 1951. According to him, the deceased had purchased the revolver since he apprehended an attack from miscreants. The deceased carried on the business of Khandsari and Money-lending. He had advanced loans to 40-50 agriculturists as admitted by Kali Charan (PW 3) during his, cross-examination. The deceased had also filed a suit against appellant Anokhey Lal for recovery of money on the basis of a pronote and this suit had been decreed before the occurrence. The appellants also admitted. during their examination under section 313 CrPC, that such a suit had been filed and decreed ex parte but the ex parte decree was set aside at their instance. According to the appellants, this constituted the back ground for their false implication in the present case. From the overall facts and circumstances, the possibility cannot be ruled out that it was a case of hit and run and the appellants came to be nominated on account of the strained relations because of the money suit aforesaid. 16. According to the appellants, this constituted the back ground for their false implication in the present case. From the overall facts and circumstances, the possibility cannot be ruled out that it was a case of hit and run and the appellants came to be nominated on account of the strained relations because of the money suit aforesaid. 16. ON the sum total of material and the circumstances placed on record it has to be found that the prosecution has not succeeded in establishing its case beyond reasonable doubt against the appellants or any of them and accordingly the benefit of doubt has to be accorded to the appellants in the present case so far as their complicity with the crime in question is concerned. In the result, these appeals succeed and are allowed The conviction and sentence recorded against the appellant Anokhey Lal (Criminal Appear No. 2044 of 1979) and appellant Bagwan Swaroop (Criminal Appeal "No. 2045 of 1979) are hereby set aside. Appellant Bhagwan Swaroop is on bail, He need not surrender to the bail bonds which are cancelled. Appellant Anokhey Lal is in Jail. He will be set at liberty forth with unless he is required in connection with some other case. Appeals allowed.