N. L. GANGULY, J. ( 1 ) BOTH the above mentioned criminal appeals arise out of the judgement and order dated 13-9-1979 passed by Sri D. S. Ram, II Addl. Sessions Judge, Etawah convicting and sentencing the appellants of life imprisonment u/s. 302/149, IPC, one year R. I. Under S. 148, IPC, two months S. I. u/s. 323/149, IPC. Appellant Ramakant was further convicted and sentenced to two years R. I. under S. 380, IPC. The accused-appellant Manni Lal and Baijnath were further convicted and sentenced to six months R. I. u/s. 147, IPC. ( 2 ) THE accused Shyam Babu, Baijnath, Ram Babu, Manni Lal, Ramakant, Rajendra Singh and Mool Chand were charged under Ss. 148, 302, 149 and 23, IPC. Accused Manni Lal and Baijnath were charged under Ss. 147, 302, 149 and 323, IPC. Additional charge was framed against accused Rama Kant u/s. 380, IPC. The Sessions Trial No. 330 of 1976 Shyam Babu and six others u/s. 396, IPC and Sessions Trial No. 358 of 1977 were jointly tried on the application of the State counsel as the Sessions Trial No. 358 of 1977 and Sessions Trial No. 330 of 1976 arose out of the same transaction. ( 3 ) THE prosecution story, briefly stated is that the deceased Mahendra Singh was Pradhan of Gaon Sabha Basaihar. He was the real brother of the informant-complainant Roop Singh P. W. 4. It is said that accused Ramakant Shukla and his partymen were displeased with the Gram Pradhan Mahendra Singh on account of matters relating to allotment of Gaon Sabha land and some litigation. The deceased-victim had initiated proceedings u/s. 122-B of the U. P. Z. A. and L. R. Act in the Tahsil against accused Ramakant Shukla and his associates. When Mahendra Singh deceased apprehended more danger to his life, he moved an application before the S. D. M. for proceedings u/s. 107, Cr. P. C. Notices in the case u/s. 107, Cr. P. C. were issued by the Court of the S. D. M. The deceased Mahendra Singh was doing Pairvi in the appeals of Gaon Sabha against Baijnath accused. It is said that on 17-6-1976 accused Rajendra Singh, Rama Kant and others had committed Marpit with deceased Mahendra Singh and his brother Niranjan Singh P. W. 3. An FIR was lodged by the deceased Mahendra Singh and a criminal case wasstarted against them. It is said that on 17-6-1976 accused Rajendra Singh, Rama Kant and others had committed Marpit with deceased Mahendra Singh and his brother Niranjan Singh P. W. 3. An FIR was lodged by the deceased Mahendra Singh and a criminal case wasstarted against them. Litigation regarding to land was already continuing against Manni Lal accused. He was also, therefore, displeased with the deceased. On account of these litigations the accused persons had united themselves for committing the murder of Mahendra Singh and they had also given threats to kill him. ( 4 ) THE deceased Mahendra Singh was a retired Naik Subedar in the Army. He was a pensioner. It is said that Mahendra Singh had moved an application before the S. O. Bakewar against the accused persons and their associates, but the S. O. Bakewar had not taken any action, as he was also in collusion with the accused persons. The deceased Mahendra Singh had moved an application on 31-1-1976 before the S. P. Etawah for necessary action on his previous application and to save him from the accused persons, who were out to kill him and his family members. According to the prosecution between the night of 4/5-8-1976 Mahendra Singh along with his wife Smt. Sri Kunwar C. W. 1 and daughters Nirmala Devi P. W. 1 and Pushpa Devi P. W. 2 was sleeping in the eastern of room of the outer Chowk of his house. The doors were closed from outside and a lantern was burning near the door of outer chowk. There were no door leaves in the Jangla of the said room. At about 3 a. m. in the said night the informant-complainant Roop Singh P. W. 4 heard the sound of walking of some persons on the roof towards eastern room which lies towards east of the inner chowk of the house. On hearing the thumping sound of the foot- steps Roop Singh P. W. 4, who was sleeping in the Chhappar towards west of the inner chowk, flashed torch light. He saw 5-6 persons near the roof of the eastern room and recognised the accused Shyam Babu, who was having a gun in his hand, accused Manni Lal, who was carrying a ladder, accused Prahlad, who was also having a gun. Roop Singh raised an alarm asking his brother victim Mahendra Singh to be careful as enemies had come. He saw 5-6 persons near the roof of the eastern room and recognised the accused Shyam Babu, who was having a gun in his hand, accused Manni Lal, who was carrying a ladder, accused Prahlad, who was also having a gun. Roop Singh raised an alarm asking his brother victim Mahendra Singh to be careful as enemies had come. The accused persons who were on the munder of the eastern roof, immediately descended in the outer chowk and started breaking open the door of the room in which the deceased Mahendra Singh was sleeping with his wife and children. The deceased Mahendra Singh, Smt. Sri Kunwar C. W. 1, his wife, and two daughters Nirmala Devi P. W. 1 and Pushpa Devi P. W. 2, had started crying. ( 5 ) NIRANJAN Singh P. W. 3 was sleeping at that time in the Chappar which lies towards west of Awadh Beharis outer Baithak outside the house. His brother Babu Singh and Babu Singhs son Awadh Behari were also sleeping in the same Chhappar. On hearing the alarm they were awakened and had raised alarm that they were reaching. They were awakened and had sat on their cot. Immediately accused Mool Chand armed with a country made pistol, accused Rajendra Singh armed with a kanta reached near them and told them not to move otherwise they would be killed. Niranjan Singh told Moolchand that he was his relation like a relation of Manni Lal and why was he going to kill him. Thereupon Moolchand fired with his gun and asked Niranjan Singh P. W. 3 and others to remain there and not to move. ( 6 ) IN the outer chowk the other accused persons were trying to break open the Jangla and the door. Mahendra Singh tried to keep them away from the Jangla. The accused persons were successful in pulling up the door from Gulu. The door had fallen inside the room. The accused persons entered in the room of Mahendra Singh. The accused immediately fired at Mahendra Singh, who was on the cot. Some of the pellets hit the wall and blood stains also came on the wall. Sri Kunwar C. W. 1, wife of the victim and daughter a Nirmala Devi P. W. 1 and Pushpa Devi P. W. 2 tried to save the victim. Mahendra Singh did not come down from the cot. Some of the pellets hit the wall and blood stains also came on the wall. Sri Kunwar C. W. 1, wife of the victim and daughter a Nirmala Devi P. W. 1 and Pushpa Devi P. W. 2 tried to save the victim. Mahendra Singh did not come down from the cot. Baijnath hit him with lathi at his leg. The other accused hit Sri Kunwar, Nirmala Devi and Pushpa Devi with lathis. The accused Prahlad and Shyam Babu hit them with the butt of the gun. They received injuries and fell down. The accused Baijnath, Ramakant, Manni Lal, Shyam Babu and Prahlad were recognised by Smt. Sri Kunwar C. W. 1, Nirmala Devi P. W. 1 and Pushpa Devi P. W. 2 in the light of the lantern and torches of the accused. The accused dragged the victim and brought him out of the room at the door and then accused Prahlad and Shyam babu fired at him with their guns. Accused Rama Kant hit him with a Kulhari. Accused Babu Ram cried from the roof asking his associates to come on the roof and to kill the complainant Roop Singh also. Some of the accused ascended on the roof and accused Manni Lal hanged the ladder in the inner chowk of the complainants house but the complainants wife Phoolmati ran there and pulled down the ladder in the inner chowk. Thereupon the complainant, his wife and his nephew Jaswant Singh entered the room and closed the same due to fear. Then the accused persons left the place of occurrence leaving the ladder Ext. 1. Some of the accused persons passed through the eastern roof and some of them went through the main door after opening the same and taking Rajendra Singh and Mool chand with them. Accused Ramakant and Baijnath were seen coming out of the house by Niranjan Singh P. W. 3and others. Rajendra Singh and Mool Chand had also accompanied accused Ramakant and Baijnath and had gone towards west. The accused on coming out of the house had told his associates Rajendra Singh and Mool Chand that he had finished the work. At that time accused Shyam Babu was armed with an axe and was having a Basta in his hand while accused Baijnath was having a lathi with him. ( 7 ) ACCUSED Mool Chand was the son-in-law of accused Manni Lal. At that time accused Shyam Babu was armed with an axe and was having a Basta in his hand while accused Baijnath was having a lathi with him. ( 7 ) ACCUSED Mool Chand was the son-in-law of accused Manni Lal. The villagers could not come for the rescue on account of fear of the accused persons. The accused persons were seen and identified in the light of the lantern and were recognised by their voice. ( 8 ) THE F. I. R. was prepared, which was dictated to Jaswant Singh and marked as Ext. Ka. 10. It was lodged at 6. 20 A. M. at the police station Bakevar. The M. O. Sri K. P. Singh P. W. 8 recorded the statement of Head Moharir Sri Ram P. W. 6 and informant Roop Singh D. W. 4 and then proceeded to the place of occurrence with the force. The I. O. saw the dead body of the victim and the place and then prepared the Panchayatnama Ext. Ka. 18. The I. O. prepared photo lash Ext. Ka. 19, challan lash Ext. Ka. 20, letter to C. M. O. Ext. Ka 21 and letter to R. I. Ext. Ka. 22. Sample seal was prepared and marked as Ext. Ka. 23. The dead body was kept in a sealed cover and was sent for post-mortem through constable Shiv Saran and Jagdish Chandra. The I. O. recorded the statements of P. W. 1 Nirmala Devi, victims wife Smt. Sri Kunwar C. W. 1 and saw their injuries. The injured persons were sent for medical examination through constable Munshi Singh with the letter of request for their medical examination. The I. O. inspected the place of occurrence and prepared the site plan marked Ext. Ka-27. We found blood stains on white bedsheet over the cot of the victim-deceased. Blood stains were seen on the southern wall of the said room also. The I. O. found the blood stains on the calendar as well which was hung on the wall in the room. The I. O. took the sample of blood stained earth. He took in possession a gas lantern lying on the floor with its tank pressed and squeezed with blood stains thereon. Glass pieces were also found there. One bag was also found on which also there were blood stains. These articles were taken possession and recovery memo was prepared. The I. O. took the sample of blood stained earth. He took in possession a gas lantern lying on the floor with its tank pressed and squeezed with blood stains thereon. Glass pieces were also found there. One bag was also found on which also there were blood stains. These articles were taken possession and recovery memo was prepared. The I. O. found 8 papers tablets of the cartridges from inside the room marked Ext. 15, which were also taken in possession and sealed. The ladder was also taken in possession and a recovery memo was prepared and marked as Ext. Ka 30. Blood stains were also scraped from the wall and taken in possession. The recovered property was sent to the police station through constable Suresh Chandra. The statements of witnesses of Panchayatnama and P. W. 3 Niranjan Singh were recorded. ( 9 ) DR. Chandra Prakash had examined the injuries of Smt. Sri Kunwar C. W. 1 and P. W. 1 Nirmala Devi. Their injury reports are proved and marked as Exts. Ka. 25 and 26. The post-mortem of the dead body of the victim-deceased was conducted by Dr. V. K. Gupta P. W. 5 on 6-8-1976 at 8. 30 A. M. The ante-mortem injuries of the deceased are quoted as under :1. Multiple gun shot wounds of entrance in the chest 4" x 5" size 1/2" to 3/8" x 3/8" cavity deep on the front of left side of chest around nipple, margin lacerated and inverted, direction from front to backward and towards right. 2. Gun shot wound of exit 3" x 2/8" x cavity deep on the right side of chest 3" below and lateral to nipple, margins lacerated and inverted direction from left to right, right Vth rib fractured and pieces protruding out. 3. Gun shot wound of entrance 4" x 21/2" x whole thickness of arm, on the outer side of right arm elbow joint, margin lacerated inverted, direction from right to left underlying lower end of humerus fractured. 4. Two gunshot wounds of exit 3" x 11/2" and 31/2" x 1" whole thickness of arm elbow joint on the inner side of right arm elbow joint, margins lacerated inverted pieces of bones protruding out from the wound, direction wound connected with injury No. 3. 5. 4. Two gunshot wounds of exit 3" x 11/2" and 31/2" x 1" whole thickness of arm elbow joint on the inner side of right arm elbow joint, margins lacerated inverted pieces of bones protruding out from the wound, direction wound connected with injury No. 3. 5. Two gunshot wound of exit on the right and left side of back, 31/2" below lower end of right scapula and 4" from midline and left side back wound 2" left to midline, margin inverted to lacerated, direction towards injury No. 1 (six shots recovered from back under skin ). 6. Contusion 2" x 1" on the front and outer side of right knee joint. 7. Contusion 4" x 1" on the outer side of right leg 3" below knee joint. 8. Three gun shot wounds of entrance in the area 1" x 3" on the outer half and left forearm 4" above wrist joint size 1/2" x 1/3" whole thickness of forearm, margin lacerated and inverted direction from back to forwards. 9. Gunshot wound of exit 2" x 3" x whole thickness of the forearm on the front of left forearm, directly connected with injury No. 8, margins lacerated and everted. The post-mortem report is Ext. Ka. 9. ( 10 ) THE I. O. after receiving the injury reports on 6-8-1976 coverted the case of murder into a case under Section 396, I. P. C. ( 11 ) SOME of the accused had surrendered in Court and were taken into custody. Accused Manni Lal was arrested on 11-8-1976. Accused Ramakant, Rajendra Singh, Prahlad, Babu Ram were evading their arrest. Their properties were attached. Accused Ramakant, Rajendra Singh and Manni Lal surrendered in Court. Chargesheet was submitted by the I. O. Accused Prahlad was not arrested. Chargesheet was submitted against him showing absconder. However, he was later arrested and brought before the Court. ( 12 ) ACCUSED Prahlad had been arrested at Kanpur and the police took the said accused in their custody for interrogation. It was known then that the accused, who was then arrested was not Prahlad but he was a dacoit Pal Singh, who impersonated himself as Prahlad before the Kanpur police. All the accused persons were committed to the Court of Session as mentioned above. Both the cases were consolidated and tried together. It was known then that the accused, who was then arrested was not Prahlad but he was a dacoit Pal Singh, who impersonated himself as Prahlad before the Kanpur police. All the accused persons were committed to the Court of Session as mentioned above. Both the cases were consolidated and tried together. ( 13 ) THE accused persons had pleaded not guilty and stated that they have been falsely implicated on account of enmity. Babu Ram accused stated that he was implicated on account of earlier criminal case and civil suit filed against him but both the matters were decided in his favour. He said that he was implicated on account of past enmity. He also stated that a dacoity was committed at the house of the deceased and the wife of the deceased Sri Kunwar had shouted on the spot that her husband was murdered by Jagat Narain and Lal Singh dacoits. ( 14 ) POOLCHAND stated that he was implicated in the case as his brother was likely to get some land in the village of occurrence. He stated that the F. I. R. was prepared by Sri Lakshmi Narain Tripathi Advocate. ( 15 ) THE statements of all the accused persons were that of denial and implication on account of enmity. It was suggested that a dacoity had been committed in the village at the house of the deceased by dacoit Lal Singh and the false implication of the accused persons was alleged due to partybandi in the village. ( 16 ) THE prosecution examined eye witnesses, namely, Nirmala Devi P. W. 1, Pushpa Devi P. W. 2, Niranjan Singh P. W. 3 and Roop Singh P. W. 4. P. W. 5 Dr. V. K. Gupta and P. W. 7 Dr. Chandra Prakash were examined proved the post-mortem report and injury reports of Sri Kunwar C. W. 1, Nirmala Devi P. W. 1 and formal witnesses Head Moharrir Sri Ram and I. O. Sri K. P. Singh P. W. 8 were examined in the case. Smt. Sri Kunwar has been examined as a Court witness and D. W. 1 Ram Swarup Pradhanadhyapk of the Primary School was examined in defence. ( 17 ) HEARD Sri S. S. Tewari, Senior Advocate, for the appellants and the Addl. Govt. Smt. Sri Kunwar has been examined as a Court witness and D. W. 1 Ram Swarup Pradhanadhyapk of the Primary School was examined in defence. ( 17 ) HEARD Sri S. S. Tewari, Senior Advocate, for the appellants and the Addl. Govt. Advocate Sri K. C. Saxena and Sri Dilip Gupta, counsel for the complainant-informant at length and perused the record of the case. ( 18 ) SRI S. S. Tewari, learned counsel for the appellants, submitted that the incident, as narrated in the F. I. R. and stated by the prosecution witnesses is wholly unbelievable. He submitted that the incident is said to be the murder of the victim Mahendra Singh on account of the ill-will of the accused persons against him. The motive is not substantiated and proved. He submitted that the facts and circumstances of the case above that a dacoity had been committed at the house of the victim Mahendra Singh in the night of the said date in which Mahendra Singh was killed by the dacoits. All the dacoits could not be identified by the complainant and the witnesses except the one, namely, Jagat Narain, as said by Smt. Sri Kunwar C. W. 1. Informant Roop Singh is the brother of deceased Mahendra Singh and he wanted to grind axe and implicate the enemies of the deceased falsely. It was submitted by Sri Tewari that the case of dacoity with murder would have become difficult to prove in view of the fact that all the accused persons were residents of the same village and well-known to the informant-complainant and it was not possible to implicate them in a case of dacoity conveniently. The police also considered it convenient to proceed with the case under Section 302 I. P. C. and implicate all the enemies of the deceased and informant in the case; otherwise it was suggested that if a case under Section 396, I. P. C. against the known persons was taken, it would be difficult to prove that known persons would commit dacoity without taking any precaution to conceal their identity. The police also gets a bad name if number of dacoity cases are committed in the police circle. ( 19 ) SRI. S. S. Tewari submitted that the perusal of the F. I. R. Ext. Ka. The police also gets a bad name if number of dacoity cases are committed in the police circle. ( 19 ) SRI. S. S. Tewari submitted that the perusal of the F. I. R. Ext. Ka. 10 shows that it is wholly unreliable and a cooked up document prepared after the consultation and deliberation. Sri Tewari submitted that in the facts and circumstances of the case, as alleged by the prosecution, when the murder of brother of the informant is committed, the informant, who is an eye witness, whether could give such minute details of the incident bit by bit to explain each injury andassign role to each accused separately. He suggested that such F. I. R. is not possible by a person of ordinary/average prudence. He also drew the attention of the Court to the statement of P. W. 4 Roop Singh, who himself stated that he had dictated the FIR to P. W. 3 Niranjan Singh after hearing about the occurrence and the manner from Court witness Smt. Sri Kunwar C. W. 1, wife of the deceased, P. W. 1 Nirmala Devi and P. W. 2 Pushpa Devi. The learned counsel for the appellants submitted that the F. I. R. was a cooked up document and the witnesses of fact examined by the prosecution were tuitored. Sri Tewari also pointed out the manner in which the occurrence is alleged to have taken place inside the room where the deceased Mahendra Singh was sleeping with his wife and two daughters. He submitted that the room where the deceased was assaulted first on the cot faces towards the South of the room. The other submission is that the door leaves were pulled down out of the Gulu and the door is said to have fallen inside the room and then the accused persons, after giving fire shot at Mahendra Singh, pulled out the victim outside the room and there also they assaulted him. ( 20 ) WE have perused the F. I. R. Ext. Ka. 10. The careful reading of the FIR shows that the informant narrated the litigation and enmity between the accused persons and deceased Mahendra Singh. The informant said himself to be sleeping in the inner chowk below the Chhapper. The perusal of the site plan proved by the I. O. shows that the inner chowk is residential portion of the house. 10. The careful reading of the FIR shows that the informant narrated the litigation and enmity between the accused persons and deceased Mahendra Singh. The informant said himself to be sleeping in the inner chowk below the Chhapper. The perusal of the site plan proved by the I. O. shows that the inner chowk is residential portion of the house. There are two kitchens and two Kothas towards the north of the said Kitchens. There are two rooms said to be of the informant and adjacent to the said rooms is the Chhapper where the informant, his wife and nephew were sleeping. Similar two rooms are there in the inner chowk towards the east and there is similar Chhapper adjoining the two rooms. Apparently these two rooms were in use of deceased Mahendra Singh. According to the F. I. R. and prosecution evidence the deceased Mahendra Singh, his wife and two daughters were sleeping in the outer chowk in the room. The outer chowk appears to be the outer portion of the house generally used for male members of the family and for meeting the outsiders, who come to meet. The F. I. R. shows that in outer chowk near the door a lantern was kept burning. The informant said in the F. I. R. that he heard the sound of movement in the inner chowk above the eastern room and claimed to have been himself and identified by his wife and nephew Jaswant, who were sleeping there, 5-6 persons on the roof. He stated to have identified Shyam Babu S/o Khazanchi armed with gun, Manni Lal was moving with a ladder and Prahlad Thakur was armed with a gun. He stated that on seeing the accused persons he had raised alarm saying subedar-brother save, enemies have come and he said to have seen the accused persons who descended from the roof in the outer chowk and started beating the door of the room, where the deceased was sleeping. This detail appears to have been introduced to show that the informant had opportunity of identifying the assailants and also raising of alarm by which the witnesses could come. The perusal of the site plan shows that the outer chowk of the deceaseds house is easily amenable from the south-west through the Rasta. This detail appears to have been introduced to show that the informant had opportunity of identifying the assailants and also raising of alarm by which the witnesses could come. The perusal of the site plan shows that the outer chowk of the deceaseds house is easily amenable from the south-west through the Rasta. There was no necessity for the accused persons to have climbed on the roof of the room of the eastern side of inner chowk and then to have given an opportunity to the informant to see and identify the assailants and then raise alarm. The informant is not an eye witness of the whole incident, as stated in the F. I. R. and statement in Court. It has been said in the F. I. R. that the assailants after descending in the outer chowk started beating the door and the deceased, his wife and daughters started crying. In the meantime a gunshot was heard outside the house. The deceased had prayed with folded hands the accused Shyam Babu and others to spare but the accused enemies pulled out the door from the Gulu and entered the room. These facts have been stated on the basis of the information received by the informant from the wife of the deceased, neices Nirmala Devi and Pushpa Devi, who were inside the room. It is said in the F. I. R. that Shyam Babu accused immediately on entering the room had shot at the deceased. He was at that time on the cot. The blood stains were seen on the wall and on the bed-sheet of the cot. The wife of the deceased and informants neices had rushed to save the victim Mahendra Singh, who was still on the cot and accused Baijnath gave a lathi blow on the legs of the deceased. The other accused persons also assaulted with lathis, the wife of the deceased and Nirmala Devi P. W. 1. Accused Prahlad and Shyam Babu hit them by butt of the gun and they fell down. Baijnath, Ramakant, Shyam Babu and Prahlad were seen and identified by the wife of the victim Mahendra Singh and his two daughters in the light of the lantern burning in the Angan and room and also in the torch light of the accused persons. Accused Prahlad and Shyam Babu hit them by butt of the gun and they fell down. Baijnath, Ramakant, Shyam Babu and Prahlad were seen and identified by the wife of the victim Mahendra Singh and his two daughters in the light of the lantern burning in the Angan and room and also in the torch light of the accused persons. Babu Ram accused had fired from the roof and thereafter the accused pulled out the victim from the room outside where Prahlad and Shyam Babu shot at him by guns. Ramakant gave a Kulhari blow. In the meantime Babu Ram accused said from the roof come on the roof, do not spare Roop Singh also and they reachedthe roof. Mannilal was carrying the ladder which he was dropping towards the Angan of the inner chowk but Phoolmati, wife of the informant, pulled the ladder and the informant, his wife and nephew entered the western room and bolted it from inside. The accused persons thereafter left. The informant P. W. 4 Roop Singh stated that he got the report written by Jaswant. He was dictating and Jaswant wrote the same as he considered fit in his own manner. He had also written what he had himself seen. In examination-in-chief the witness stated that the details of the incident were told to him by the wife of the deceased and two nieces while they were weeping and crying. At the same time Niranjan Singh, Lal Singh and Awadh Behari had also come, who had also informed the facts about threats given to them outside where they were present. The prosecution introduced the lantern inside the room and outside in the Angan and the details given in the F. I. R. show that two young girls and the wife of the victim would not be in a position to give in so much details about the manner of the incident inside the room and outside the room. They were crying and weeping as the father of the two girls and husband of the lady had been killed. It is not normally expected from the wife of the victim to narrate the details and manner of assault, as said by the prosecution. They were crying and weeping as the father of the two girls and husband of the lady had been killed. It is not normally expected from the wife of the victim to narrate the details and manner of assault, as said by the prosecution. ( 21 ) THE site plan shows that the room where the assault was made first is towards south-east of the outer chowk with only one door and one window without door leaves. The cot of the deceased was towards south end of the room in direction east-west where he was sleeping. The door, which was pulled out of the Gulu was at a distance of one hand from the cot of the deceased. The deceased was on the cot itself and accused Shyam Babu soon after entering the room fired a shot at the deceased. The door had fallen inside the room and the distance between the door and the cot is only one hand i. e. about 11/2. The shot was given to the deceased when he was on the cot, the distance would be very close not more than 3-4 or maximum 5. Thus the distance between the barrel of the gun and the deceased would be less than 2 but the injuries of the deceased do not show any blackening or charring. The learned counsel for the appellants pointed out the post mortem report and alleged that the area of dispersal of entry wound is 4" x 5", 4" x 21/2", 1" x 3" at injuries Nos. 1, 3 and 8. The recovery of the blood stains from the calendar on the wall and from the bedsheet spread over the cot shows that the deceased was standing at the time when the shot was fired. If the person was standing on the cot and the assailant was on the floor then the direction of the injury would be from downward to upward but the post mortem report does not show such injuries. The statements of P. W. 1 Nirmala Devi and P. W. 2 Pushpa Devi show that they along with the wife of the deceased C. W. 1 Sri Kunwar had rushed to save Mahendra Singh after the shot. These persons were said to be sleeping on different cots towards the north of the room. The statements of P. W. 1 Nirmala Devi and P. W. 2 Pushpa Devi show that they along with the wife of the deceased C. W. 1 Sri Kunwar had rushed to save Mahendra Singh after the shot. These persons were said to be sleeping on different cots towards the north of the room. The presence of these three witnesses P. W. 1 Nirmala Devi, P. W. 2 Pushpa Devi and C. W. 1 Sri Kunwar in the said room, as stated to be sleeping on cots is not beyond doubt. It has been admitted that after the incident no one entered the room and nothing was removed but the I. O. P. W. 8 Sri. K. P. Singh in his statement had not said a word about the recovery of three cots of these witnesses. ( 22 ) THE learned counsel for the informant-complainant Sri Dilip Gupta submitted that the place where these three witnesses were sleeping on the cot is shown in the site plan by letters H1, H2 and H3. He submitted that the omission to mention about the presence of cots at the time of inspection by the I. O. would be wholly immaterial. P. W. 8 Sri K. P. Singh I. O. in his statement stated that while making reference of places for P. Ws 1 and 2 and C. W. 1 by letters H1, H2 and H3, he has not made any reference to the presence of cots in his case diary. He had only referred to the presence of the cots on which the deceased was lying. In the inspection note or case diary that I. O. admitted to have not mentioned about sleeping or not sleeping of Nirmala Devi P. W. 1, Pushpa Devi P. W. 2 and C. W. 1 Smt. Sri Kunwar. The other aspect of the matter is that after giving shot at the deceased inside the room when the accused persons are said to have pulled him outside the room the door was just at a distance of one hand from the cot but in pulling and dragging no injury is shown to have been caused, although he had already received a gunshot, which is said to have bleeding on the bedsheet and sprinkled blood at the wall. He was not in normal condition to have walked avoiding the door in between. He was not in normal condition to have walked avoiding the door in between. The contusions 2" x 1" and 4" x 1" on the front side of the right hand and right leg below the knee since have been earmarked on account of the lathi blow given cannot be said to be on account of pulling him out of the room. The argument of the learned counsel for the appellants that the deceased Mahendra Singh was alone in the room when he was assaulted and the lady and the girls of the family were normally sleeping in the inner chowk, which is the residential portion of the house seems to be probable. The learned counsel for the complainant-informant Sri Dilip Gupta submitted that the deceased had only daughters and wife and no male issue. Thus there was no improbability of Mahendra Singh sleepingin the outer Baithak with his wife and daughters. The argument does not find support from the evidence on record. Had it been a fact, then the presence of three cots in the same room where the deceased was first assaulted was naturally to be found and the omission of mentioning of the cots or presence and sleeping of the witnesses in the same room in the case diary by the I. O. suggests that the prosecution appears to have attempted to improve and develop the case in evidence. ( 23 ) THE perusal of the F. I. R. and the evidence of Roop Singh P. W. 4 gives a vivid description about the litigation and enmity with the deceased Mahendra Singh and the accused persons. The accused-appellants were not only the persons with whom the deceased had ill-will and enmity. P. W. 4 Roop Singh stated that an application was moved by Mahendra Singh before the Superintendent of Police in which besides the accused persons 20 other villagers of the same village were also named. Thus it cannot be said that the enmity was only with the accused persons but there were a large number of persons in the village with whom there was enmity. The enmity is a double edged weapon. It is also possible that the enemies may have committed the offence and it is also possible that the informant may have implicated the persons against whom the informant had to grind axe. The enmity is a double edged weapon. It is also possible that the enemies may have committed the offence and it is also possible that the informant may have implicated the persons against whom the informant had to grind axe. The motive of the accused-appellants for commission of the offence alone cannot be a sufficient ground to hold that they were the assailants causing death of the deceased unless proved and substantiated by cogent evidence by the prosecution. ( 24 ) IT is said that the accused Manni Lal was annoyed with deceased Mahendra Singh on the ground that Ahibaran had given his property by will to Mahendra Singh. Manni Lal had 1/6th share in the property. He had filed an objection also but the case was later got compromised by him. Similarly Shyam Babu accused was also said to be against Mahendra Singh deceased and the informant. This alone is not sufficient to infer that Manni Lal and Shyam Babu accused were not murder Mahendra Singh. It is said that Mahendra Singh had moved an application dated 26-6-1976 before the Court against 20 other persons as the accused u/s. 107, Cr. P. C. The Court had issued notices but the Sub Inspector of Police of the Thana was not getting the notices served on the accused persons. It is said that a complaint against the Sub Inspector was submitted by Mahendra Singh before the Superintendent of Police. The certified copy of the application u/s. 107, Cr. P. C. given against Mool Chand, Prahlad and 20 other persons was filed before the Court and proved as Ext. Ka. 5. The learned counsel for the appellants submitted that this certified copy cannot be treated as proved unless the original record of the case u/s. 107, Cr. P. C. was summoned and proved before the Court for proving the certified copy to be the copy of the record of S. 107, Cr. P. C. The argument is correct. A document which is required to be proved as a part of proceeding could only be proved by summoning the record of the said case before the Court to get the certified copy proved to make it admissible in evidence. This was not done. ( 25 ) IT is also said that notice was sent in S. 107 Cr. A document which is required to be proved as a part of proceeding could only be proved by summoning the record of the said case before the Court to get the certified copy proved to make it admissible in evidence. This was not done. ( 25 ) IT is also said that notice was sent in S. 107 Cr. P. C. case but the Sub Inspector was not getting the notice served on the accused persons. The deceased, Mahendra Singh is said to have visited the Thana and met the Sub Inspector Mahavir Singh. It is said that the Sub Inspector had abused Mahendra Singh and asked him to go to the S. D. M. for getting the notice served. Thus on 31-7-1976 Mahendra Singh is said to have submitted an application before the Superintendent of Police against the said Sub Inspector. A typed copy of the application was filed in Court to prove the allegations against Mahavir Singh S. I. The original application dated 31-7-1976 was not proved by summoning the same before the Court from the office of the Superintendent of Police and the typed carbon copy is not proved according to law to make it admissible in evidence. These two documents cannot be taken into consideration for considering the same as immediate motive for the accused persons to have committed the offence. ( 26 ) THE evidence of P. W. 4 Roop Singh shows that there are houses close to the place of incident of Chhotey Lal, Madho Prasad and Shri Pal. The said persons were not examined by the I. O. in the case. Roop Singh himself stated that the age of Chhotey Lal was 75 years, Madho Prasad 72 years and Shri Pal 55 years. The age of the said witnesses is said to be too much for treating them as witnesses. He also stated that the son of Madho Prasad sleeps in the Gonda situate in north of the village. The I. O. was the best person to have investigated the case and interrogated the persons who are of very close vicinity of the place of incident. This has not been done and the explanation is coming from the informant, who is not to be taken as a wholly truthful witness as he himself admitted enmity with him and his brother deceased Mahendra Singh with the accused persons. This has not been done and the explanation is coming from the informant, who is not to be taken as a wholly truthful witness as he himself admitted enmity with him and his brother deceased Mahendra Singh with the accused persons. ( 27 ) THE prosecution had firstly attempted not to produce Smt. Sri Kunwar, wife of the deceased Mahendra Singh as an eye witness. She was most natural witness of the incident and the learned Sessions Judgeconsidered her evidence to be very necessary and summoned her as a Court witness. C. W. 1 Smt. Sri Kunwar stated in reply to a Court question that when the accused persons Shyam Babu, Prahlad, Manni Lal, Baijnath and Ramakant came and affixed the ladder in the outer chowk and hearing their shouts and noise the deceased and witness Smt. Sri Kunwar and the daughters were awakened. The accused persons were saying to open the door. The deceased Mahendra Singh with folded hands requested to spare him, as he had five daughters but the accused persons did not listen and said to open the door, we will not leave and pulled the door leaves from the Gulu and entered. Shyam Babu after entering the room climbed on the cot and shot at Mahendra Singh. The shot his the lantern. The second shot was given by him which caused injury on the right hand. Shyam Babu, Prahlad and Ramakant started dragging him. Smt. Sri Kunwar C. W. 1 clashing with Prahlad accused asked. lala, what are you doing but Shyam Babu hit her by butt of the gun. Ramakant accused hit Nirmala Devi by reverse of the axe. Two lathi blows were given on the knees of the deceased. Ramakant then gave reverse axe blows on the deceased. Baijnath also caused Lathi injuries and then Shyam Babu again loaded his gun and fired two shots at the deceased. Accused Ramakant and Baijnath took away the Basta from the room. Shyam Babu had flashed his torch and in the said torch light Babu Ram was seen firing. The explanation given by the prosecution for not examining C. W. 1 Sri Kunwar is that she was not in a proper mental state after the murder of her husband. In her statement Smt. Sri Kunwar C. W. 1 stated that she had come to the Court when the statements of her two daughters were recorded. The explanation given by the prosecution for not examining C. W. 1 Sri Kunwar is that she was not in a proper mental state after the murder of her husband. In her statement Smt. Sri Kunwar C. W. 1 stated that she had come to the Court when the statements of her two daughters were recorded. She had also come to give evidence. She admitted to have gone to the Government counsel present in Court. She stated that she was present with her daughters. The witness said that Vakil Sahib had read the statements recorded by the police to the two girls before the evidence. These facts show that the witnesses were not produced unprepared but were produced after fully tuitored. C. W. 1 Sri Kunwar was not produced before the Court since it was suggested that she had stated at the time of occurrence that dacoits Jagat Narin was amongst the dacoits. To avoid the evidence about dacoity as suggested by the defence she was being withheld. ( 28 ) AFTER scanning the evidence on record and hearing the learned counsel for the appellants, counsel for the informant-complainant Sri Dilip Gupta and Sri N. C. Saxena, A. G. A. we are of the view that the prosecution evidence is not above board. The FIR written in the present case is itself such a document which we do not feel inclined to accept on its face value. It has been admitted that once the FIR was written and it was again thereafter scribed by Jaswant. The vivid details in the F. I. R. are not possible to note and watch in such a situation where a large number of accused persons had attacked to kill the husband of C. W. 1, and father of P. Ws. 1 and 2. The presence of Roop Singh P. W. 4 near the place of incident is not established at all and he also does not claim that he was the witness of the incident except that he had seen the accused persons on the roof of the Kotha. It is doubtful to believe that Roop Singh could see the accused persons on the Kotha. It is not imaginable as to why the accused persons would go on the roof of the inner chowk when it was easily accessible to reach the outer chowk from the road. It is doubtful to believe that Roop Singh could see the accused persons on the Kotha. It is not imaginable as to why the accused persons would go on the roof of the inner chowk when it was easily accessible to reach the outer chowk from the road. It is perhaps set up to fit in the case of the prosecution to make Roop Singh a witness of the incident to put the accused persons on the roof of the inner Kotha. The FIR does not inspire confidence and cannot be taken as the true depiction of the allegations. The material witnesses available near the house, who could be termed as independent were neither examined by the I. O. nor produced before the Court. It is Niranjan Singh, P. W. 3, who termed them to be old and incapable of being good witnesses. The injury of the deceased on the right hand of the deceased is said to be the first shot which had hit the deceased when he was on the cot and the accused had climbed on the cot. The nature of the injury does not corroborate the prosecution case. If they were so close to each other, there was no justification for not causing blackening or charring on the injury. The learned counsel for the informant Sri Dilip Gupta suggested that since no question about blackening and charring was put to the doctor, who conducted the post mortem, it could not materially affect the case, the doctor may not be asked about the presence of blackening and charring, a medico legal fact, which is a question of Medical Jurisprudence well established even not asked can be assumed. Thus the medical evidence is in conflict with the occular testimony of the witnesses. We have also held above that the motive in the present case is not conclusive to make out a case against the accused persons as enmity, which is said to be the cause of motive is double edged weapon. It would be unsafe to uphold the conviction of the appellants on evidence of motive alone. We have also held above that the motive in the present case is not conclusive to make out a case against the accused persons as enmity, which is said to be the cause of motive is double edged weapon. It would be unsafe to uphold the conviction of the appellants on evidence of motive alone. The defence version, that a dacoity had been committed at the house of victim Mahendra Singh wherein he was killed, though denied by the witnesses and suggested to the P. W. 1 Nirmala Devi and C. W. 1 Smt. Sri Kunwarthat nothing had been looted except the bag, appears to be a fully tutored version and cannot be implicitely relied. From the over-all assessment of the evidence we are not satisfied that the prosecution has been able to prove the case against the accused-appellant, beyond all reasonable doubt. The benefit of doubt, in such circumstances, is to be given to the accused-appellants. ( 29 ) THE appeal is allowed. The conviction and sentence awarded to them are set aside. The appellants are on bail. They need not surrender. Their bail bonds stand discharged. ( 30 ) R. N. RAY, J, I agree. Appeal allowed. .