JUDGMENT : - V. N. Mehrotra, J. 1. THIS appeal has been filed against the judgment and order dated 13.8.1986 by Shri S.N. Singh, IInd Additional Sessions Judge, Hamirpur convicting the appellants Ram Sewak and Ram Ji for committing offence punishable under Section 302 read with Section 34, I.P.C. and sentencing them to undergo imprisonment for life. 2. THE prosecution case is that deceased Mahipat and Punwa were residents of village Dhagwa, P. S. Majhgawan, district Hamirpur. Informant Jugal Klshore is a brother of these deceased persons. It is alleged that on the day of the occurrence, i.e. on 31.7.1978 both the deceased persons as well as informant Jugal Kishore had gone to graze their goats and other cattle in the fields of village Itailiya. It is said that witnesses Wand Kishore, Phadali, Sripat, Rajendra and Tula Ram were also grazing their cattle in nearby fields. It is further alleged that the cattle which Jugal Klshore and his brothers were grazing entered the field of accused Ram Sewak. Thereupon this accused armed with country made pistol and Ram Ji and Puttu Singh armed with guns reached there at about 11 a.m. These persons started abusing the deceased and other persons and thereafter started taking away the cattle in order to impound the same in the cattle pond. Deceased Punwa tried to stop these persons and also started abusing them. Deceased Mahipat thereafter stopped the cattle but when the accused persons insisted on taking the cattle to the cattle pond Mahipat struck Ram Sewak with a lathi. Accused Ram Sewak then shouted that these persons be killed, on which accused Ram Ji and Puttu Singh tired shots from their guns and accused Ram Sewak fired shots from his pistol causing fatal injuries to Mahipat. When Punwa tried to intervene all the three accused persons fired shots aimed at him killing him on the spot. It is alleged that on the shouts of the witnesses a number of persons including Kandhi and Din Dayal also reached there. THE accused thereafter went away from the plaoe of occurrence. Jugal Kishore (P.W. 1) got the F.I.R. written by one Kunj Bihari and lodged the same at P.S. Majhgawan at 4.05 p.m. on the same day. After the case was registered Investigation was conducted by S.I. Lal Singh Chandel (P.W. 5). THE accused thereafter went away from the plaoe of occurrence. Jugal Kishore (P.W. 1) got the F.I.R. written by one Kunj Bihari and lodged the same at P.S. Majhgawan at 4.05 p.m. on the same day. After the case was registered Investigation was conducted by S.I. Lal Singh Chandel (P.W. 5). He recorded the statement of Jugal Kishore at the police station and reached the scene of occurrence on the same day. Panchnamas of the dead bodies were not prepared on that day as it had become dark by the time this witness reached on the spot. Panchnamas were prepared on 1.8.1978 and the dead bodies were sent for post-mortem examination alongwith necessary papers. The Investigating Officer took in his possession blood stained and plain clay from the place of occurrence. He also took in his possession one lathi and some empty cartridges from the spot. The Investigating Officer thereafter prepared site plan of the place of occurrence. He also recorded the statements of some of the witnesses named in the F.I.R. The charge-sheet was submitted on 23.9.1978 after completing the investigation. 3. THE post-mortem examination of the dead body of deceased Mahipat was conducted by Dr. J. N. Agarwall (P.W. 4) at 12.10 p.m. on 2.8.1978. He found a very large number of ante-mortem gun shot injuries on the body. THE injuries have been mentioned in detail in the statement of this witness. 4. DR. Agarwal conducted post-mortem examination of the dead body of. Punwa at 10 a.m. on 2.8.1978. A large number of ante-mortem gun shot injuries were also found on his body. According to DR. Agarwal, both the deceased could have died at about 11.00 a.m. on 3J.7.1978 as a result of fire arm injuries received by them. The prosecution has in this case examined five witnesses, out of them Jugal Kishore (P.W. 1), Nand Kishore (P.W. 2) and Tula Ram (P.W. 3) have been examined as eye-witnesses of the occurrence. 5. IN this case charge-sheet had been submitted against all the three accused persons named in the F.I.R. but during the trial accused Puttu Singh died and so the trial proceeded against the remaining two accused persons. Both these accused persons have denied prosecution allegations and have asserted that they have been falsely implicated in this case. No plea of self defence was taken by these accused persons in their statements under Section 313, Cr. Both these accused persons have denied prosecution allegations and have asserted that they have been falsely implicated in this case. No plea of self defence was taken by these accused persons in their statements under Section 313, Cr. P.C. nor any such suggestion was made on their behalf to the witnesses in their cross-examination. However, later on a written statement was filed on behalf of accused Ram Sewak in which a plea of exercise of right of private defence has been raised. We will consider the document at appropriate stage. 6. DURING the trial only Jugal Kishore (P.W. 1) has supported the prosecution case and the remaining two eye-witnesses namely Nand Kishore and Tula Ram did not support the prosecution allegations but alleged that they were not present at the scene of occurrence. Both of them were cross-examined by the prosecution. The learned Additional Sessions Judge placed reliance on the statement of Informant Jugal Kishore (P.W. 1) and also found support from the allegations made in the written statement filed by accused Ram Sewak. On the basis of these allegations he held that the prosecution has been able to prove its case beyond reasonable doubt and so he convicted and sentenced both the accused, as mentioned earlier. 7. IN this appeal it has been argued on behalf of the appellants that the evidence produced by the prosecution was totally unsatisfactory and insufficient to establish the guilt of the appellants. It has also been argued that there was no justification for the trial court taking help from the contents of the statement filed on behalf of the accused Ram Sewak, and even if the allegations made in the same are believed even then no case against any of the two appellants could be made out. 8. WE have heard the learned counsel for the appellants and the learned A.G.A. and perused the record. During the arguments it has not been disputed that Mahipat and Punwa had died at about 11.00 a.m. on 31.7.1978 as a result of the gun shot injuries received by them. It has also not been disputed that the incident took place in Itailiyahar of village Itailiya where the dead bodies of the deceased were found by the Investigating Officer. During the arguments it has not been disputed that Mahipat and Punwa had died at about 11.00 a.m. on 31.7.1978 as a result of the gun shot injuries received by them. It has also not been disputed that the incident took place in Itailiyahar of village Itailiya where the dead bodies of the deceased were found by the Investigating Officer. The question, however, arises as to whether the prosecution evidence is sufficient to prove beyond reasonable doubt that the murder of these persons had been committed by the appellants. The question of considering the claim about the exercise of right of private defence could arise after it is found that the prosecution evidence was reliable and sufficient to establish its case, i.e. to say that the prosecution has to stand on its own legs and in case it is found that the prosecution evidence was of weak nature and was insufficient to establish the guilt of the accused persons beyond reasonable doubt then the court cannot find corroboration from some part of the written statement filed by the accused while ignoring the other vital part. Now examining the prosecution evidence, the sole witness who has supported the prosecution case is Jugal Kishore (P.W. 1). This witness is the brother of the deceased persons. He claims that both the deceased persons were grazing their cattle in Itailiyahar and he himself was also grazing his cattle there. This witness is a resident of village Dhagwa. He does not have his own fields near the place of occurrence. He could have grazed his cattle in the fields of Dhagwa itself. He asserts that he had also gone to Itailiyahar to graze his cattle there. The question arises as to whether presence of this witness at the scene of occurrence has been established beyond reasonable doubt, as it cannot be said this witness must have been present at that place. The learned Additional Sessions Judge has found confirmation of the presence of this witness at the scene of occurrence from the F.I.R. lodged by this witness at 4.05 p.m. on 31.7.1978. In our view considering the facts and circumstances which we will mention no such confirmation was possible. Jugal Kishore (P.W. 1} has in his statement mentioned that he had come to the police station and got the report written by Daroga Ji. In our view considering the facts and circumstances which we will mention no such confirmation was possible. Jugal Kishore (P.W. 1} has in his statement mentioned that he had come to the police station and got the report written by Daroga Ji. He then mentioned that he had got the report written by Kunj Bihari, who is a Daroga. He then said that he got the report written by Daroga Ji. He further stated that Kunj Bihari was resident of his village and that he had dictated the report which was written by Kunj Bihari. He also stated that Kunj Bihari read over the report and then he put his thumb impression on the same. He then proceeded for the police station. The cross-examination of this witness however, discloses different story. He has stated that both the dead bodies were lying in the fields and the F.I.R. was written while sitting there by Daroga Ji. He then stated that this happened on the next day and the report written by Kunj Bihari was prepared on the next day. He has also stated that Daroga Jl reached the scene of occurrence at 4.00 p.m. on the day of occurrence. Later on this witness stated that the dead bodies were sent for post-mortem in the night but later he changed this statement and stated that the dead bodies were sent on the next day. He then stated that the Daroga Ji (Investigation Officer) dictated the report to Kunj Bihari and then he put his thumb impression on the same. This statement by the witness will indicate that though the Investigating Officer reached the scene of occurrence [in the evening on the same day, the F.I.R. was prepared on the spot on the next day on the dictation by the Investigation Officer to Kunj Bihari. This statement completely belies prosecution assertion that the F.I.R was promptly lodged in this case. It appears that the F.I.R was prepared on the next day after deliberations and consultations and no value can be attached to the same nor any corroboration of the statement of the informant could be sought from the F.I.R 9. THE learned Additional Sessions Judge was conscious of the infirmity in the statement of the informant: Jugal Kishore. At one stage he has mentioned that there was a solitary testimony of Jugal Kishore (P.W. 1) and that too was a bit shaky. THE learned Additional Sessions Judge was conscious of the infirmity in the statement of the informant: Jugal Kishore. At one stage he has mentioned that there was a solitary testimony of Jugal Kishore (P.W. 1) and that too was a bit shaky. At another stage he has observed that the testimony of Jugal Kishore only contains some twisting of facts from those enumerated in the written report (Ext. Ka-1) at some places yet on the whole he appears to be the trustworthy and dependable witness. We are of the view that the statement of Jugal Kishore (P.W. 1) is not fully reliable but was of a shaky nature. More so when the F.I.R. in the case had been prepared at a later stage after due deliberations and consultation. THE learned Sessions Judge has then sought support from the allegations made in the Written Statement filed on behalf of accused Ram Sewak. We are, however, unable to find any support from this written statement which is of exculpatory nature. In this written statement it has been mentioned that at 11.00 a.m. on 31.7.1978 Ram Sewak was looking after his crops in his field when deceased Mahipat and Punwa drove their cattle into the field. He objected to this act on the part of the deceased, on which they started abusing him. He then tried to drive out the cattle from the field but Mahipat struck him on his head with a lathi He started shouting on which both the deceased again tried to hit him. Accused Puttu Singh, who was present in the nearby field and was armed with a licensed gun belonging to Baljoi, reached (there and fired shots causing injuries to both the deceased. It was also mentioned that he had reached the police station but the police did not record his F.I.R. He was then arrested. He was medically examined in Jail. 10. EVEN if the above mentioned allegations contained in the written statement are accepted to be true. There is no case as against the accused Ram Sewak nor it could be said that the contents of this written statement in any way implicate accused Ram Ji. The act: of killing of the two victims has been assigned to deceased Puttu Singh. Whether he had exceeded the right of private defence or not that will be a different matter. The act: of killing of the two victims has been assigned to deceased Puttu Singh. Whether he had exceeded the right of private defence or not that will be a different matter. So even if reliance is placed on this written statement it does not in any way support the prosecution case that the present appellants had fired shots killing the victims. The trial court could not have picked up portions of this written statement in order to seek corroboration of the prosecution evidence. This written statement was to be considered as a whole. It is a different matter that the court rejects the plea of exercise of right of private defence taken in the written statement. But the prosecution is still to establish its case beyond reasonable doubt. As mentioned earlier, the evidence led by the prosecution to prove the guilt of the accused Ram Sewak and Ram Ji was of a shaky nature and it will not be proper to place total reliance on the statement of Jugal Kishore (P.W. 1) to convict the appellants. We are conscious of the fact that two persons had lost their lives in the occurrence but in our sympathy with the victims or their family members, we cannot convict the accused persons without there being reliable evidence which could prove the case against them beyond reasonable doubt. In the circumstances this appeal is allowed. The judgment and order dated 13.8.1986 by the IInd Additional Sessions Judge, Hamirpur is set aside. Both the appellants are given benefit of doubt and are acquitted of the offences charged under Section 302, I.P.C. read with Section 34, I.P.C. The appellants are on bail. They need not surrender. Their bail bonds are discharged. Appeal allowed.