V. N. MEHROTRA, J. ( 1 ) THESE two appeals have been filed against the judgement dated 17-2-1979 by Shri V. M. Kher, IV Additional Sessions Judge, Etah convicting the appellants for the offence punishable under Section 302 read with Section 34 of the I. P. C. and sentencing each of them to undergo imprisonment for life. ( 2 ) IT is said that on 16-3-1976 one Jiwa Ram, who was the resident of village Nagla Moch. , P. S. Aliganj District Etah, was murdered. Present accused Sheodan, who is the brother of Jiwa Ram, lodged first information report in respect of that murder naming Rameshwar Dayal, Parmeshwari and Anokhey Lal as accused. In that case the accused persons were subsequently released on bail. That sessions trial was pending when the present occurrence took place. It is said that us a result of the murder accused Sheodan was inimical to Rameshwar Dayal. He used to say that he will not rest till he takes revenge. It is further alleged that on 29-6-1977 at about 6. 45 p. m. when deceased Rameshwar Dayal along with informant Amar Singh and witnesses Moonga Lal, Jamadar, Shanti Swaroop and Johari Lal was at the brick-kiln situate at a distance of about 1 km. from the abadi of village Nagla Moch, all the four accused persons reached there armed with country made pistols and guns. Accused Sheodan shouted that it was a good opportunity to take revenge and on that all the accused persons started firing shots resulting in the death of Rameshwar Dayal. The dead body was brought to the chaupal and thereafter the informant Amar Singh accompanied by other witnesses reached the police station Aliganj and lodged the written report (Ext. ka. 1) at 1. 00 a. m. on 30-6-1977. The case was registered and the chick report was prepared by C. C. Ram Singh (Ext. ka-2 ). Investigation in the case was conducted by A. S. I. Natthi Lal, PW-4. He recorded the statements of witnesses and after reaching the place where the body was lying prepared the panchayatnama. The Investigating officer also reached the scene of occurrence and took in his possession the blood stained clay as well as five empty cartridges. The Investigating Officer also prepared the site plan (Ext. Ka-11 ). After panchayatnama the dead body was sent for postmortem examination. The Investigating officer also reached the scene of occurrence and took in his possession the blood stained clay as well as five empty cartridges. The Investigating Officer also prepared the site plan (Ext. Ka-11 ). After panchayatnama the dead body was sent for postmortem examination. The charge sheet in this case was submitted by S. I. R. N. Sharma, PW-5 after completion of the investigation. ( 3 ) THE post-mortem examination of the dead body of Rameshwar Dayal was conducted by Dr. S. Prasad, PW-6 at 8. 00 a. m. on 1-7-1977. The postmortem examination indicates that the deceased received on gun shot injury on the head, one gun shot injury on the right side of chest, another gun shot injury on the back and the fourth gun shot injury on the left arm outer side. The Doctor also found six ounce semi digested food in the stomach and digested food in the small intestine. Some faecal matter was found in the large intestine. Seventy three pellets were also found embedded in the injuries. The post-mortem report (Ext. Ka-16) was prepared at the time of post-mortem examination. According to him the deceased had died one and half dayearlier. He stated that the death could have also been caused at 6. 45 p. m. on 29-6-1977. In his cross-examination he has stated that the deceased could have also died at about 12. 00 in the night of 29/30-6-1977. ( 4 ) CHARGE under Sections 302 and 34, I. P. C. was framed against the accused persons. They pleaded that they were not guilty of the offence and stated that they have been falsely implicated in the case due to enmity. The accused persons examined Shri Surendra Singh Vakil, DW-1, to prove an application dated 6-8-1977 allegedly moved by witnesses Moonga Lal and Jamadar before the District Magistrate, Etah on 6-8-1977. ( 5 ) THE prosecution examined Amar Singh PW-l. Jamadar PW-2 and Moonga Lal PW-3 as eye-witnesses of the occurrence. We have already referred to the role of Natthi Lal P. W. 4 and R. N. Sharma P. W. 5, who had investigated the case, and Dr. S. Prasad P. W. 6, who had conducted postmortem examination. ( 6 ) LEARNED Additional Sessions Judge believed the prosecution evidence and held that it has proved its case beyond reasonable doubt. He accordingly convicted and sentenced the accused persons as mentioned earlier. S. Prasad P. W. 6, who had conducted postmortem examination. ( 6 ) LEARNED Additional Sessions Judge believed the prosecution evidence and held that it has proved its case beyond reasonable doubt. He accordingly convicted and sentenced the accused persons as mentioned earlier. ( 7 ) IN these appeals Shri D. N. Wali, who is representing the appellants, has argued that the evidence produced by the prosecution in this case was highly interested and inimical and was totally insufficient to prove the guilt of the appellants beyond reasonable doubt. The learned counsel has further argued that there was no reason for the alleged eye-witnesses to have been present at the scene of occurrence when the occurrence allegedly took place. It has further been argued that the occurrence actually took place after it has become dark and at that time none of the witnesses was present, but due to previous enmity the appellants have been falsely implicated in this case. It has also been contended that in fact witnesses Jamadar and Moonga Lal had moved an application before the District Magistrate, Etah mentioning that they had not seen the occurrence and this fact indicates that these witnesses were not speaking the truth in the trial Court. ( 8 ) AS mentioned earlier, one Jiwa Ram was murdered in March, 1976 and in respect of that murder appellant Sheo Dan had lodged a first information report naming the deceased Rameshwar Dayal and also his cousin brothers Parmeshwari and Anokhey Lal. When the present occurrence took place that sessions trial was pending. At that stage all these three persons were on bail. Informant Amar Singh is the real brother of deceased Rameshwar Dayal and cousin brother of Parmeshwari and Anokhey Lal. Moonga Lal, PW-3 is the brother of Anokhey Lal and Parmeshwari and thus he is related as a cousin brother to deceased Rameshwari Dayal. The statement of Moonga Lal (PW-3) indicated that Anokhey Lal and Rameshwar Dayal have been convicted and sentenced to undergo imprisonment for life for committing the murder of Jiwa Ram. Obviously both these witnesses were highly inimical and interested witnesses and had reason to depose against the present appellants. The statement of Moonga Lal (PW-3) indicated that Anokhey Lal and Rameshwar Dayal have been convicted and sentenced to undergo imprisonment for life for committing the murder of Jiwa Ram. Obviously both these witnesses were highly inimical and interested witnesses and had reason to depose against the present appellants. The question is as to whether in the light of these circumstances it can be said that the prosecution witnesses were so reliable that implicit faith could be placed on their testimony and their testimony could be relied upon to hold that the appellants were guilty of committing the murder of Rameshwar Dayal. ( 9 ) THE fact that Rameshwar Dayal had died after receiving gun shot injuries is not disputed. The postmortem report shows that the deceased had received as many as four gun short injuries which had resulted in his death. In this case there is also no dispute about the place of occurrence. The occurrence took place at. the brick-kiln of one Sarman Singh situated at a distance of about one kilometre from village Nagla Moch. The Investigating Officer actually found empty cartridges and blood stained clay at the scene of occurrence. The relevant question which now arises is as to whether the prosecution has established that the occurrence in question took place at about 6. 45 p. m. when the sun light was available, and also whether the three prosecution witnesses named above had seen that occurrence. ( 10 ) IT will be proper to examine the statements of the alleged eye-witnesses. Amar Singh (PW-1) is the informant and had lodged the first information report at the Police Station Aliganj at 1. 00 a. m. in the night of 29/30-6-1977. The police station is situated at a distance of about 8 kms. from the place of occurrence. It is alleged that after this occurrence the dead body of Rameshwar Dayal was taken to his chaupal in his village and after staying there for about one and a half hour at that place, informant along with the witnesses proceeded for the police station. Jamadar (PW-2) has stated that when the dead body was brought to the chaupal in the village the sun had not still set, but it set about two to four minutes later. He further stated that after about one and a half hour they started from their village for Aliganj. Jamadar (PW-2) has stated that when the dead body was brought to the chaupal in the village the sun had not still set, but it set about two to four minutes later. He further stated that after about one and a half hour they started from their village for Aliganj. None of the prosecution witnesses has given any reason for waiting at the chaupal for one and a half hour after the dead body had been brought there. The natural course for these witnesses wouldhave been to proceed for the police station immediately after bringing the dead body to that place, instead of waiting for the darkness to descend before starting for the police station. Further, as the police station was only 8 kms away, the informant and the witnesses would have reached that place at about 11 p. m. had they started from the village between 8 and 8. 30 p. m. He however, in this case the first information report was lodged at 1. 00 a. m. These facts indicate that the probability is that the murder has taken place not at 6. 45 p. m. but at some later time, and due to that reason the first information report could not be lodged before 1. 00 a. m. There is another indication to show that the murder may have taken place at some other time and not at 6. 45 p. m. Amar Singh (PW-1) has stated that on the day of the occurrence the deceased Rameshwar Dayal had left for Asadnagar at 4. 00 p. m. for participating in a feast there. According to him the distance of Asadnagar from the brick-kiln was one and a half mile. He has also stated that when he reached the brick-kiln at 5. 30 p. m. Rameshwar Dayal was not present there but he reached there half an hour later i. e. , according to him the deceased reached the brick-kiln at about 6. 00 p. m. In view of this statement it appears to be quite probable that the deceased Rameshwar Dayal, had taken food at about 5. 00 p. m. The post mortem examination report shows that six ounces semi digested food was present in the stomach of the deceased and digested food was present in the large intestine. It will be obvious from this that the deceased had taken food four hours before his death. 00 p. m. The post mortem examination report shows that six ounces semi digested food was present in the stomach of the deceased and digested food was present in the large intestine. It will be obvious from this that the deceased had taken food four hours before his death. This also indicates that the occurenace proably took place at about 8. 00 p. m. or later, and not at 6. 45 p. m. ( 11 ) ALL the three prosecution witnesses of fact are resident of village Nagla moch. The brick-kiln in question, whether these witnesses and three others assembled in the evening, is at a distance of about 1 km. from the abadi of the village. None of the witnesses are the owner or employee of the brick-kiln. Amar Singh (PW-1) has stated that Rameshwar Dayal used to act as watchman at the Brick-kiln in the day time and not during the night. Jamadar (PW-2) has, however, stated that the deceased Rameshwar Dayal used to work as chaukidar at the brick-kiln during the day as well as the night also. Amar Singh (PW-1) has not given any reason for his being present at the brick-kiln at the time of occurrence in the F. I. R (Ext. Ka-1 ). However, in his cross-examination he has stated that on that day Rameshwar Dayal had asked him to proceed for the brick-kiln in order to count the bricks as the Munshi was not present there. He has admitted that since four or five days earlier the bricks were not being taken out from the kiln. The statement of the Investigating Officer Natthi Lal, A. S. I. (PW-4) will indicate that as it used to rain occasionally during those days, the bricks were not being prepared by the labourers. Thus it will appear that no work was being carried out at the brick-kiln on the date of occurrence. It also appears that the bricks were not being taken out or sold on that day. In these circumstances there was no reason for the deceased Rameshwar Dayal to ask his brother Amar Singh to reach the brick-kiln for counting the bricks as obviously, there was no reason for the deceased to have asked Amar Singh to count the bricks. He was not in any way concerned with the work being carried out at the brick-kiln. In these circumstances there was no reason for the deceased Rameshwar Dayal to ask his brother Amar Singh to reach the brick-kiln for counting the bricks as obviously, there was no reason for the deceased to have asked Amar Singh to count the bricks. He was not in any way concerned with the work being carried out at the brick-kiln. It is true that Amar Singh has stated that on the day of occurrence his brother was proceeding for attending a feast at Asadnagar, but he has stated that his brother has asked him to work as a watchman at the kiln during the period of his absence. The statement of this witness shows that after reacing the brick-kiln he simply stood or talked to the persons allegdly present there and did not do any work there. In our view there was no reason for this witness to be present at the brick-kiln at the time of occurrence. This fact coupled with the fact that this witness makes it totally unsafe to place relience on his statement. Further though in the first information report (Ext. Ka-1) this witness has asserted about the participation in the crime by all the four accussed persons, in his statement in the trial Court he alleged that he had recognised accused Sheodan but he could not recognise the other three persons. He has also asserted that these three persons had their faces covered with dhatas. When this witness was cross-examined by the prosecution, he stated that he only suspected that those three persons were Nirottam, Sunder and Soney Lal but he was not sure of that. There is this contradictory assertion by this witness about the presence of these three accused persons. It may be that the witness was troubled by his conscience and so he made such a statement,even though earlier he had named these three accused persons. Considering these facts we are unable to place implicit reliance on the statement of this witness. ( 12 ) THE next witness examined by the prosecution is Jamadar (PW-2 ). This witness has not given any reason for being present at he brick-kiln at thetime of the occurrence. Normally he should not have been present at the brick-kiln. He. has stated he reached the brick-kiln after visiting his field which had no crop at that time. ( 12 ) THE next witness examined by the prosecution is Jamadar (PW-2 ). This witness has not given any reason for being present at he brick-kiln at thetime of the occurrence. Normally he should not have been present at the brick-kiln. He. has stated he reached the brick-kiln after visiting his field which had no crop at that time. Obviously there was no reason for this witness to have visited his field or the brick-kiln in the evening on the day of the occurrence. He has stated that he reached the brick-kiln at about 5. 00 p. m. and at that time Amar Singh (PW-1)and deceased Rameshwar Dayal were present there. As mentioned earlier, Amar Singh (PW-1)has stated that he had reached the brick-kiln at about 5. 30 p. m. and at that time Rameshwar Dayal was not present there but had reached there after about half an hour. Obviously the statement of this witness is contradictory on this point. Accordingly to this witness the only purpose for which he had gone to the brick-kiln was just to roam about and to talk with the persons who had allegedly reached there. In our view the reason given by this witness for being present at the brick-kiln at the time of the occurrence does not appear to be acceptable. It was suggested to this witness that he was a party man of Amar Singh. He has, however, denied this suggestion. Any how, as the presence of this witness at the brick kiln at the time of the occurrence is doubtful, it will not be safe to place reliance on his statement. ( 13 ) THE next witness examined by the prosecution is Moonga Lal (PW-3 ). As mentioned earlier he is also a highly interested and inimical witness. He was obviously not a natural witness whose presence at the scene of occurrence could not be doubted. This witness has not disclosed as to for what reasons he went to the brick-kiln at the time of the occurrence. It appears that for no reason as many as five persons reached the brick-kiln as if there was some premonition that some occurrence was going to happen there which was to be witnessed by them. In view of these facts it will not be proper to place any reliance on the statement of this witness also. It appears that for no reason as many as five persons reached the brick-kiln as if there was some premonition that some occurrence was going to happen there which was to be witnessed by them. In view of these facts it will not be proper to place any reliance on the statement of this witness also. ( 14 ) ON behalf of the appellants it is contended that witnesses Jamadar and Moonga Lal had moved an application before the District Magistrate, Etah mentioning that they had not seen the incident. Jamadar (PW-2) denied that any such application was moved by him. The application was not put to him during his cross-examination and for this reason it will not be proper to place much reliance on the same, (the application which was sought to be proved by DW-1 Surendra Singh, vakil ). Similarly, Moonga Lal (PW-8) stated that accused Sheodan forced him to file an affidavit and out of fear he has filed the same. However, no affidavit was produced or filed before the trial Court to show that any affidavit was filed by this witness. In the circumstances the alleged application moved by these witnesses cannot be of any value. However, the fact remains that the prosecution witnesses of fact are not reliable and their statements are not sufficient to establish that they were actually present at the scene of occurrence, and that the murder of Rameshwar Dayal was committed by the present appellants at the time alleged by them. In any case the prosecution has not been able to prove its case beyond reasonable doubt, and so the accused are entitled to the benefit of the same. ( 15 ) IN view of the above discussion both the appeals are allowed. The judgement dated 17-2-1979 by Shri V. M. Kher, IV Additional Sessions Judge, Etah is set aside. The appellants namely Nirrotam, Sunder, Soney Lal and Sheodan are hereby held not guilty of the offence charged with and are acquitted of the same. They are on bail. They need not surrender. Their bail bonds are discharged. Appeal allowed. .