A. S. TRIPATHY, J. ( 1 ) KALICHARAN, Murli, Ninhkoo and Sohan have preferred this appeal against the judgment and order dated 31/7/1979 passed by learned Sessions Judge, Azamgarh in Sessions Trial No. 37 of 1979 whereby the appellant Ninhkoo was convicted under Section 302, I. P. C. while appellants Kali Charan, Murli and Sohan were convicted under Section 302/34, I. P. C. but all the appellants were sentenced to imprisonment for life under the respective counts. ( 2 ) THE charge against the appellants was that on 28/8/1978 at 8 P. M. in village Harriya, P. S. Kandhupur District Azamgarh one Santoo was done to death on whom appellant Ninhkoo fired with a country made pistol and thereby committed an offence punishable under Section 302, I. P. C. and the other appellants shared common intention and thereby committed an offence punishable under Section 302 read with 34, I. P. C. ( 3 ) THE prosecution case is that Murli and Ninhkoo being brothers had two supporters, Sohan and Kali Charan. All the four appellants have been arrayed as co-accused in some cases. There was a dispute between Sheopujan and Barsati about the land. The aforesaid Sheopujan and Barsati alongwith another were arrested in that connection. Proceedings U/s. 107/116, Cr. P. C. were drawn between Munni and others on one hand and Barsati and others on the other hand. It is said that Santoo deceased was supporting Barsan in the said litigation. In the mean time one Jhinnu having some property, died issueless giving rise to claim by Santoo and P. W. 2 Monai that they were nephews of Jhinnu and wanted the land for cultivation as they were looking after it. It is said however, Jhinnu has executed some documents in favour of Santoo deceased. Therefore, after the death of Jhinnu which took place about one and half months prior to the murder of Santoo; the said deceased Santoo filed an application for mutation of his name on the property of late Jhinnu. The accused Ninhkoo however, claims that his son had been adopted by Jhinnu and therefore, filed an application for mutation with regard to the property of Jhinnu. Both parties were consequently contesting their mutation matter and enough bad blood was flowing between two sides and quarrel had taken place. Santoo and Monai claimed possession over Jhinnus plots during life time of Jhinnu. Both parties were consequently contesting their mutation matter and enough bad blood was flowing between two sides and quarrel had taken place. Santoo and Monai claimed possession over Jhinnus plots during life time of Jhinnu. But it is said that after the murder of Santoo the possession went to Ninhkoo accused. ( 4 ) IN view of the aforesaid enmity, it is said that on 28/8/1978 at about 8 P. M. Monai P. W. 2 and Ram Samuja P. W. 1 accompanied by Barsan, Jokhan and Satnoo were going for ease themselves on the Chakroad towards the south of village. When they reached the Bajra field of Santoo, they heard some noise emanating from the field at which Ram Samujh flashed torch and located appellant Ninhkoo armed with country made pistol, apellant Kali Charan armed with Pain a (stick) appellant Sohan and Murli being armed with lathis. Sohan and Murli appellants exhorted that Santoo should be finished. The appellant Kali Charan flashed his torch and said that the work may be finished soon, at this, the appellant Ninhkoo fired two shots at Santoo as a result of which, he fell down. The witnesses raised alarm at which other villagers arrived. The appellants ran away. Santoo who had fallen down and died in the mean time was carried to his house on a cot in dead condition. A report was prepared by Monai written out by Ram Nawal which was allegedly lodged at 1 A. M. on 29. 8. 1978 by Monai P. W. 2. It is said that this First Information Report was the basis of the case registered under Section 302, I. P. C. against the appellants by P. W. 3 Bux Singh who was posted as head Constable at Police Station Kandhmpur. It is further said that P. W. 6 Kailash Mohan Srivastava, the Station Officer was present when this First Information Report was lodged. After registering the case, the statement of informant was recorded and P. W. 6 proceeded for the spot immediately being accompanied by P. W. 4 Subhash Tiwari Constable. None of the accused was present when searched. However, an inquest report was prepared by P. W. 6 in the next morning which was referred on account of paucity of light in the night hours. None of the accused was present when searched. However, an inquest report was prepared by P. W. 6 in the next morning which was referred on account of paucity of light in the night hours. It is said that the dead body was handed over to P. W. 4 Subhash Tiwari for being carried to Azamgarh Mortuary for postmortem examination. ( 5 ) THE post mortem of the dead body was prepared by Dr. G. M. Lal, Medical Officer, District Hospital Azamgarh on 30/8/1978 at 4. 00 P. M. In the opinion of the Medical Officer at the time of the post mortem the death of the deceased had occurred about three-fourth (3/4th) day before the post-mortem. He found that the deceased was a persons with muscular body, rigor-mortis was absent in upper extremity but was present in lower extremity and decomposition of the dead body had set in. The Medical Officer found the following antemortem injuries on the dead body of Santoo:1. Gun shot wounds four in number, dispersed in an area of 6 x 4 on the posterior - lateral aspect of right side neck. No blackening and scorching found. 2. Guns shot wound 11 in number dispersed in area of 7 x 6 on the right shoulder and scapula-scorching at the site of entry is present. 3. Gun shot wound seven in number; on the right side chest dispersed in an area of 8 x 6 extending from enterior axillary line posterior axillary line upto 12th rib. On internal examination, Medical Officer founder the chest perforated on the right side under injury No. 1, pleura perforated and two points of clotted blood found inside; the right lung perforated and one point of semi-clotted blood in peritonium present. The Medical Officer also found the stomach empty. Gall bladder was found perforated with pellets, which were three in number. In the opinion of the Medical Officer, the death had been caused due to shock and haemorrhage due to ante-mortem injuries. The Medical Officer recovered twelve metallic shots from the liver and lung (right) and sent the same to the Superintendent of Police, Azamgarh. The Investigating Officer thereafter completed the investigation and filed a charge-sheet against the appellants. During trial, the appellants denied their participation in the incident and attributed false implication due to enmity. The Medical Officer recovered twelve metallic shots from the liver and lung (right) and sent the same to the Superintendent of Police, Azamgarh. The Investigating Officer thereafter completed the investigation and filed a charge-sheet against the appellants. During trial, the appellants denied their participation in the incident and attributed false implication due to enmity. Though, they have not examined any witness some documentary evidence has been filed on their behalf. ( 6 ) THE prosecution case as regards the participation of the appellants in the incident depends upon the oral evidence of two eye witnesses, namely P. W. 1 Ram Samujh and P. W. 2 Monai. No other eye witness was examined. Learned trial Judge however, place reliance on the testimony of the aforesaid two eye witnesses and had convicted and sentenced the appellants as noted above, hence this appeal. ( 7 ) SRI Uma Kant Misra learned counsel for the appellants and Sri A. R. Misra special Counsel for the State have been heard for and against this appeal and the entire record has been scrutinised. ( 8 ) THREE principal arguments advanced in support of the appeal, firstly that the eye witness account furnished by Monai and Ram Samujh should be discarded because toy had no reason to be present in the outskirt of the village where admittedly, the deceased was done to death and both of them being highly inimical to the appellants, no corroboration being available even from the First Information Report or post-mortem report, conviction should not be based relying on their testimony Secondly, the post-mortem report completely contradicts the eye witness account in asmuch as, it is demonstrated that the deceased had died as a result of three gun shot injuries whereas the prosecution case indicated in the First Information Report and testified to by the witnesses in trial attributed the death due to two firings. Thirdly, it was said that the explanation for the enormous delay in the post-mortem examination and also no proof coming forth regarding sending of the special report to the authorities within time indicates that the death was noticed quite late on 29/8/1976 whereafter the police papers were manipulated so as to give colour to the present prosecution case. The learned Special Counsel has tried to refute these three arguments advanced on behalf of the appellants. The learned Special Counsel has tried to refute these three arguments advanced on behalf of the appellants. ( 9 ) THERE is no doubt that in the First Information Report other witnesses were mentioned but none of them has been examined in the instant case. Ram Samujh was having his house far away from that of the deceased or his brother Monai P. W. 2. Normally there was no expectancy on the part of Ram Samujh to be present at the house of the informant. In any case, even if he could have been visiting the house of the informant, there was absolutely no reason to expect that he should accompany the informant and the deceased for going to ease themselves. The place where the incident has happened as indicated in the site-plan also is by the side of Chakroad far away from the Abadi of village Harriya. It has been admitted by the informant P. W. 2 that the Bajra field of the deceased as well as adjoining Sugar-cane field grown up to the height of the chest of a person and was sufficient to hide anyone. Under the circumstances, it is not understandable as to what brought Ram Samujh P. W. 1 to the house of the informant and then he should have been taken to the place of the occurrence. It is rightly pointed out on behalf of the appellants that Ram Samujh is co-accused alongwith the deceased and is also arrayed as opposite party in the proceedings under Section 107/116, Cr. P. C. The extreme partisanship of these two eye witnesses goes to show a ground to seek independent corroboration of their testimony. ( 10 ) FOR this reason specially, the post-mortem report becomes very important in this case. P. W. 5 Dr. G. M. Lal who had conducted the post-mortem report has specifically said that injury No. 1 and 2 were the result of two different shots. The prosecution itself admits that injury No. 2 was as a result of another shot. Therefore, is from the statement of the Medical expert it is established that the deceased was done to death as a result of three shots being fired from a firm arm. Consequently, the consistent eye witness account furnished by Ram Samujh P W. 1 and P. W. 2 and the appellant Ninhkoo had fired twice and the deceased falls to the ground. Consequently, the consistent eye witness account furnished by Ram Samujh P W. 1 and P. W. 2 and the appellant Ninhkoo had fired twice and the deceased falls to the ground. Once this discrepancy between the oral account and the medical evidence exists it by itself is enough to discard the eye witness account in the instant case. However, with its extreme partisanship and improbability attached in the testimony of these two eye witnesses, it is wholly unsafe to convict the appellants on the basis of the evidence. ( 11 ) IN view of the aforesaid/discussions, the appeal succeeds and is allowed. The appellants are acquitted of all the charges framed against them. They are on bail. They need not surrender. Their bail bonds are discharged. Appeal allowed. Convictions set aside. .