Judgment V. S. KOKJE, J. ( 1 ) THE appellant and one Bhoop Singh were tried on charges under Sections 302/34 IPC and Section 27 of Indian Anns Act. Accused Bhoop Singh was acquitted of all the charges but appellant Rajendra Singh was convicted of the in-charges under Section 302 IPC and Section 27 of the Indian Arms Act. He was acquitted of the charges under section 302/34 IPC. The appellant was sentenced to undergo life imprisonment will a fine of Rs. 500/- on the charge under Section 302 IPC and was sentenced to undergo rigorous imprisonment of one year on the charge under Sec. 27 of the Indian Arms Act. This conviction and sentence is appealed by appellant Rajendra Singh in this case. ( 2 ) PROSECUTION story as disclosed in the FIR is that Jug Lal (PW1) who had lodged the FIR had gone at about 6. 30 in the evening on July 18, 1987 to Prithvi Singhts dhanit alongwith one Banwari. Prithvi Singh was not found there and reported to have gone to Bhadra. Jugal and Banwari went to the dhanit and met Shanwal Ram (PW2) there. They waited for Prithvi Singh with the last bus but he did not arrive. Then Jug Lal (PW 1) and Shanwal Ram (PW 2) started on foot towards Karanpura in search of Prithvi Singh. When they reached T1dhani Bishnoiyant1, they found Prithvi Singh and one Pratap coming from the opposite direction at about 8. 00 p. m. When they were 15-20 steps away from them, accused Rajendra Singh and Bhoop Singh were seen coming behind Prithvi Singh and Pratap. Accused Rajendra Singh accosted Prithvi Singh and he turned back, accused Rajendra Singh fired from a pistol. When Juglal (PW 1) and Shanwal Ram (PW 2) shouted at accused Rajendra, he again fired one shot and Prithvi Singh fell down. Pratap tried to catch hold of Rajendra but Rajendra threatened him also and again fired one shot. Accused Bhoop Singh and Rajendra Singh then ran away from the spot. The witnesses Juglal (PW1) and Shanwal Ram (PW 2) went near Prithvi Singh and saw his injuries and saw that he had lost consciousness. Thinking that he was alive, they stopped one jeep and put him in it and took him to the hospital where Prithvi Singh was declared dead. The witnesses Juglal (PW1) and Shanwal Ram (PW 2) went near Prithvi Singh and saw his injuries and saw that he had lost consciousness. Thinking that he was alive, they stopped one jeep and put him in it and took him to the hospital where Prithvi Singh was declared dead. Juglal (PW 1) in the FIR also suggested the motive for the crime to the suspicion of the accused persons that he had called one Data Ram brother-in-law of accused Rajendra. It is also reported in the FIR that Rajendra Singh also had a pistol and he had also fired while running away. ( 3 ) FROM the FIR, it can be seen that Juglal (PW 1) had stated to have gone to Prithvi Singhs dhani alongwith on Banwari. At the dhani they met Shanwal Ram (PW 2 ). However, at the place of the incident only Juglal and Shanwal Ram were said to be present and there is no reference as to where Banwari, had gone. It is also clear that Pratap who had accompanied Prithvi Singh was also an eye witness and was said to have tried to intervene and was threatened by accused Rajendra Singh. The prosecution examined at the trial Juglal (PW 1) and Shanwal Ram (PW 2) alone as eye witnesses and did not examine either Banwari or Pratap. The conviction of the appellant is mainly based on the testimony of Juglal (PW 1) and Shanwal Ram (PW 2 ). ( 4 ) JUGLAL (PW 1) has explained in his statement the absence of Banwari at the spot by saying that he had returned back to the village after taking tea at Prithvi Singhs T1dhani. He improved on the FIR while stating that Ranjendra had asked Prithvi Singh as to how he will save himself as he was going to take revenge for the murder of his brother-in-law and after hearing this Pratap Singh turned back. He again improved on the FIR by stating that immediately on turning back, Pratap Singh entreated Rajendra as to why he was killing him and what wrong he had done to him. He further improved on the FIR version by stating that Prithvi Singh was hit in the abdomen and he went forward keeping one hand on stomach. He again improved on the FIR by stating that immediately on turning back, Pratap Singh entreated Rajendra as to why he was killing him and what wrong he had done to him. He further improved on the FIR version by stating that Prithvi Singh was hit in the abdomen and he went forward keeping one hand on stomach. It has also been stated by the witness that when he was hit by the shot, he shouted MAR DIYA RE and upon that Juglal (PW 1) and Shanwal Ram (PW 2) challenged the accused persons. There is again an improvement on the FIR version in the statement of Juglal when he deposed that Prithvi Singh went upto Pratap in that condition and requested him to intervene. Then Rajendra Singh asked Pratap to clear-out, else he will kill him also. Then Prithvi Singh went a distance forward and sat and then fell down. There is also an improvement on or contradiction with the FIR when Juglal (PW 1) deposed that when Prithvi Singh fell down, Rajen4m Singh faced the second shot which also hit him. The FIR version was that Prithvi Singh fell down after receiving the second shot. There is another improvement on the FIR when Bhoop Singh is alleged to have fired while running away but in the statement Juglal (PW 1) deposed that on Prithvi Singhs falling down, the second shot was fired at him by Rajendra Singh which also hit him. After the second fire, Pratap ran away and Bhoop Singh fired at Prithvi Singh. Juglal has also added in his statement that when Rajendra Singh fired the second shot, Bhoop Singh had exhorted him by saying MAR SALE KO BACH NA JAYE. After that, Bhoop Singh fired at Prithvi Singh and then both of them went away. ( 5 ) THE second eye-witness examined by the prosecution is Shanwal Ram (PW 2) who is brother-in law of the deceased. This witness also stated the same story as is given by Juglal (PW 1) in his statement. According to the versions given by these two eye-witnesses, Pratap who had accompanied deceased Prithvi Singh and was present throughout the incident was an important eye witness. He was also witness of panchnama prepared during the investigation. His statements were also recorded by the Police under Section 161 of the Code of Criminal Procedure. According to the versions given by these two eye-witnesses, Pratap who had accompanied deceased Prithvi Singh and was present throughout the incident was an important eye witness. He was also witness of panchnama prepared during the investigation. His statements were also recorded by the Police under Section 161 of the Code of Criminal Procedure. No explanation has been given as to why he was not examined by the prosecution. Kashi Ram (PW 9), Investigation Officer has admitted that a statement of Juglal (PW 1) under Section 161 of the Code of Criminal Procedure was recorded after the spot panchnama was prepared. The statement of Pratap was also recorded by the Police after the spot panchnamat was prepared. Kashi Ram (PW 9) has also admitted that he made no enquiries from Banwari. The witness also stated that Shanwal Rams statement under Section 161 of the Code of Criminal Procedure was recorded on July 25, 1987 as till then he did not come across him and when he asked Juglal, Sheo Ram and Amar Singh to call Shanwal Ram, they said he would be produced lateran. The witness also stated that in the investigation he had reached to the conclusion that Bhoop Singh had not fired any shot. One more important aspect of the matter is that the incident had taken place at around 8. 00 p. m. and the incident is said to have seen by the witnesses from the distance of 15-20 steps away. There is no explanation about the source of light and the position of visibility from the distance of 15-20 steps. The only extra explanation for source of light is that day light, though poor, was still there. ( 6 ) THUS the evidence in the case is of two highly interested eye witnesses being brother and brother-in-law of deceased Prithvi Singh, These witnesses, though they have not contradicted each other on substantial aspects of the case but they have given a totally improvised version of the case put forward in the FIR. The statement of these eyewitnesses were not recorded by the Police immediately and this was done after spot panchnamat was prepared. The statement of one witness was recorded on July 19, 1987 whereas of the other on July 25, 1987. The statement of these eyewitnesses were not recorded by the Police immediately and this was done after spot panchnamat was prepared. The statement of one witness was recorded on July 19, 1987 whereas of the other on July 25, 1987. The reason for their being present at the spot, away from their normal place of residence is also not plausible and readily acceptable specially when Banwari who is said to have accompanied Juglal from his Village to Prithvi Singhs dhanit was not only examined by the Police but his statement under Section 161 of the Code of Criminal Procedure was also not recorded. The timings offering of gun shots has been substantially changed by the witnesses while deposing in the Court, They also tried to implicate Bhoop Singh by saying that he had also fired at Prithvi Singh. This version, Police themselves have not believed. Moreover, Pratap an important eye witness of the incident has not been examined at all. ( 7 ) IN this state of affairs, it cannot be said that charge has been proved to the hilt. Possibility of false implication of the accused persons because of enmity which is said to be the motive of the crime between the parties cannot be ruled out because Juglal (PW 1) and Shanwal Ram (PW 2) are closely related to the deceased. The conviction and the sentences passed, against the appellant, therefore cannot be sustained. The appeal is therefore, allowed. The conviction and sentences passed against the appellant are set aside. The appellant is in jail. He shall be set at liberty forthwith, if he is not required in any other case. Appeal allowed.