B. K. SHARMA, J. ( 1 ) THIS is an appeal against the judgment and order dated 15-5-1979 passed by Sri Raman Prakash, the then 5th Additional Sessions Judge, Bijnor in Sessions Trial No. 233 of 1977, State v. Santosh Kumar, convicting the present accused- appellants of the offences under Section 302/149 IPC, 307/149 IPC, 324/149 IPC and 148 IPC and sentencing each one of them to undergo Imprisonment for Life R. I. for 4 years, R. I. for 1 year and R. I. for 18 months respectively. ( 2 ) THE prosecution story as disclosed by Hargu Lal informant, PW-1 in his testimony at the trial was that Nidhi Kaj, Rajendra Singh, Shoorvir Singh, Ashok Kumar S/o Ghanshyam Singh, Hem Raj, Mahipal Singh, Mahendra Singh alias Surendra Singh, Raj Pal Singh, Om Prakash and Santosh Kumar, accused were of the same community and were members of Congress Party, that he and his brother Lajpat Rai deceased and others were members of Janata Party, that in the election for Lok Sabha in June, 1977 he and the deceased were on the side of Wahid, candidate of Janata Party while all the accused persons were siding Shaunath Singh, candidate of Congress Party, that Santosh Kumar accused was Pradhan of village Gohavar Jait, that his (the informants) village was adjoining the village Gohavar Jait, that in the election the accused persons had asked them to support Congress Party, whereupon, the deceased had told them that he would remain with Janata Party, that this reply annoyed the accused persons and they started feeling enmity, that in the election, the informant and the deceased supported Janata Party and the candidate of Janata Party was successful, that all these accused persons threatened that they would see them and started roaming around the village carrying lathies and Guns, that on 30-6-1977 at about 5. 30 p. m. when he was working on his tailoring shop, he heard the noise and abuses of the accused persons coming from North, that on this, he came out and saw that the accused persons have arrived at the Ciraha situated at a distance of 10 paces towards North, that Nidhi Raj, Rajendra Singh, Shoorvir Singh and Ashok Kumar accused were carrying Double Barrel Guns, Mahipal Singh, Mahendra Singh alias Surendra Singh and Santosh accused were carrying Single Barrel Guns, that Rajpal accused was carrying a Tamancha and Om Prakash and Hem Raj accused were carrying Lathies, that Mahipal Singh, Ashok Kumar and Nidhi Raj accused advanced towards Tukman Singh (CW-1) and hurling abuses retorted, "tu Bahut Leader Banta Hai Aaj Tera Kam Tamam Kar Dengey. " and Ashok Kumar and Nidhi Raj accused fired at Tukman Singh (CW-1) with their guns that at that time, Tukman Singh (CW-1) was standing in front of his (informants) shop, that Tukman Singh (CW-1) got injured and fell to the ground, that then Santosh Kumar, Rajendra Singh, Shoorvir Singh, Rajpal Singh and Hem Raj accused advanced towards Lajpat Rai deceased who was taking tea at the shop of Hari Om, that Raj Pal Singh, accused climbed on the Chabootra situated infront of the shop and catch (Sic) (caught) hold of the hairs of the deceased and pulled him down, that Hem Raj accused gave a Lathi blow on the deceased from the back side, that then Santosh Kumar accused retorted, "bahut Leeder Banta Hai, Isko Bhi Goli Mar Do" and Rajendra Singh accused fired from his gun which struck the deceased who got injured and fell down at the spot, that after this Shoorvir Singh accused made a fire towards the deceased but the fire did not strike the deceased, that he (the informant) made entreaties with the accused persons but they did not listen, that consequently, he shifted to one side, that on that very time, Mahendra Singh, Mahipal Singh, accused fired with their guns in different directions which struck Nihal Singh, Prasadi Lal, Krishna Kumar, Vishesh Kumar, Ashok Kumar (to be distinguished from Ashok Kumar accused) Km. Vaido Devi and all of them received pallet injuries, that witnesses Om Prakash, Jaswant, Bal Charan Singh, Chiranji Singh, Triloki Singh, Baljeet Singh, Bhim Singh, Rajendra Singh, Bhim Singh Mukhiya, Gajraj Singh, Dharampal Singh, Jiteridra Singh and Hari Om Chaiwala and others had come there and seen the occurrence, that he and his son Vishesh PW-3, picked up the deceased and took him from there to their own house and laid him at a cot lying infront of his door where he died instantaneously. The written FIR of this case (Ext. Ka-1) was scribed by Vishesh Kumar PW-3 at his (informants) dictation. He reached at police station Noorpur by tractor and lodged his report there. On its basis, chik report (Ext. Ka-24) was prepared by the clerk constable on 30-6-77 at 6. 30 p. m. and the case was registered under Sections 147, 148, 149, 307 and 303 IPC against all the 10 accused persons and the entry was made in the G. D. (Ext. Ka-25 ). The investigation followed in which witnesses were interrogated and the inquest proceedings were taken. The dead body of the deceased was sealed and was sent for post mortem. Blood stains were found on the spot. 6 empty cartridges were also found at the spot. The injured persons were sent for medical examination. After committal, accused persons were committed to the Court of Sessions where all of them were charged with the offence under Section 147 IPC and 8 of them namely Santosh Kumar, Shoorvir, Mahipal Singh, Nidhi Raj, Rajendra Singh, Ashok Kumar, Mahendra Singh and Raj Pal. accused were charged for the offence under Section 148 IPC. All of them were charged under Sections 307/149 IPC in respect of the assaults at Nihal Singh, Parsadi, Ashok Kumar S/o Ram Lal, Krishna Dutta, Vishesh Kumar, Tukman Singh and Smt. Vedo Devi. Rajendra Singh accused was further charged for the offence under Section 302 IPC simplicitor and the rest of the accused were charged for the offence under Section 302/34 IPC for the murder of Lajpat Rai, deceased. ( 3 ) POST mortem was done on-the dead body of Laj Pat Rai on 1-7-1977 at 4 p. m. by Dr. K. R. Sharma PW-4. The age of the deceased was about 32 years and the duration of death was one day i. e. 24 hours. The observations of the Dr. ( 3 ) POST mortem was done on-the dead body of Laj Pat Rai on 1-7-1977 at 4 p. m. by Dr. K. R. Sharma PW-4. The age of the deceased was about 32 years and the duration of death was one day i. e. 24 hours. The observations of the Dr. R. R. Sharma were that Rigor Morties was present on the entire body but there was no sign of decomposition. Following ante-mortem injuries were found on his person :- (1) Gun shot wound of entrance 11 x 8 cm x chest cavity Deep on the left side chest over nipple area-Margins were inverted. Blackening and tattooing were present around the wound. (2) Abrasion 3 x 2 cm. over back of left shoulder: (3) Abrasion 4 x 2 cm. on the back left side upper part. (4) Abrasion 5 x 3 cm. on the right side back middle part. (5) Abrasion 8 cm x 2 or 3 cm. on the right side back lower part. According to Dr. Sharma, the abrasions were caused by some friction against hard substance and injury No. 1 was caused by some fire arm, 4th to 6th ribs were fractured and lung was punctured on left side. 20 oz. clotted blood was present in the pleural cavity. Semi digested food weighing about 12 Oz. was present in the stomach. In his opinion the death was caused by shock and haemorrhage and injury No. 1 was sufficient to cause death in the ordinary course of nature. It is also stated by him that the death would have been instanteneous and was possible at about the time of the alleged occurrence. In the cross-examination he has stated that the shot must have been fired from a distance of about 1 to 4 feet and the injury was probably of a single shot. ( 4 ) INJURIES of Tukman Singh injured were examined by the medical officer, emergency duty District Hospital on 30-6-1977 at 11 p. m. He found the following injuries :- (1) Multiple gun shot wounds in front of chest Lt. sine upper part in area 15 cm. x 16 cm. x varying from skin to cavity deep injury kept U. O. Adv. X-ray bleeding present. No blackening and tattooing. (2) Lacerated gun shot wound on the right side neck posterior part measuring 1/3 cm x 1/3 cm. muscle deep margins inverted. sine upper part in area 15 cm. x 16 cm. x varying from skin to cavity deep injury kept U. O. Adv. X-ray bleeding present. No blackening and tattooing. (2) Lacerated gun shot wound on the right side neck posterior part measuring 1/3 cm x 1/3 cm. muscle deep margins inverted. No blackening and tattooing present, 14 cm. from the lateral and of Rt. Clavicle. Bleeding present Inj. Kept U. O. Adv. X-ray. (3) Lacerated gun shot wound on the posterior part of Rt. shoulder margins inverted bleeding present measuring 1/2 cm. x 1/3 cm. x muscle deep. Adv. X-ray. (4) Lacerated wound on the lateral and of Rt. Wrist joint 3 cm x 2 cm x muscle deep. Bleeding present. His dying declaration has been recorded on 1-7-1979 at 12. 15 hours by an Executive Magistrate. It was Ext. Kha-3. Injury Nos. 1, 2 and 3 were kept under observation and X-ray was advised. Injury No. 4 was simple. The injuries were caused by fire arm but their duration was fresh. Injury reports of Nihal Singh, Prasadi, Ashok Kumar, Smt. Vedo Devi, Kishan Dutta and Vishesh Kumar were also on record. Their injuries were fire arm injuries and were simple in nature. ( 5 ) AT the trial, prosecution examined Hargu Lal Gupta informant, PW 1 (brother of the deceased), Jaswant Singh PW 2, Vishesh Kumar PW 3 (son of Hargulal Gupta, informant PW 1) as eye witnesses. Rests of the prosecution witnesses were formal. Tukman Singh injured in this case was examined by the Sessions Judge as C. W. 1 on the request of the defence. Injured Krishan Dutta Sharma was examined by the defence as DW 3. Besides these, the defence examined Vichitra Kumar Sharma DW I Mahavir Singh DW 2 and Raghuvir Singh DW 4. ( 6 ) IN the FIR, the prosecution story claimed all the 10 accused coming together, with their weapons, Nidhi Raj, Shoorvir Singh, Rajendra Singh and Ashok Kumar accused armed with D. B. B. L. Guns, Santosh Mahipal and Mahendra Singh alias Surendra Singh accused with S. B. B. L. Guns, Raj Pal accused with Tamancha and Hem Raj and Om Prakash accused with Lathies. The specification of roles was that Mahipal, Nidhi Raj and Ashok Kumar accused advanced towards Tukman Singh injured (CW 1) and Nidhi Raj and Ashok Kumar accused fired at him and injured him, that Raj Pal, Shoorvir Singh, Santosh Kumar, Hemraj Singh and Rajendra accused came towards the deceased Laj Pat Rai who was taking tea at the shop of Hari Om and Raj Pal accused pulled the deceased down catching hold of him by his hairs, that Hem Raj accused gave Danda blow to the deceased, that Santosh Kumar accused made exhortation and Rajendra accused fired at Laj Pat Rai deceased by which the deceased fell down, that Shoorvir accused fired with his gun but it did not strike the deceased. Further the FIR said that Mahendra accused fired with his gun, that by shots fired, Ashok Kumar, Prasadi Lal, Krishna Kumar Sharma, Vishesh Kumar, Smt. Vedo Devi and Nihal Singh received pellet injuries. In other words, these injuries were caused by the shots fired by Rajendra Singh, Shoorvir Singh and Mahendra Singh. No specific role was assigned to Om Prakash, accused in the FIR except the general allegation that all the accused were hurling abuses and saying. "maro SALON KO. " He was not said to have fired. ( 7 ) AT the trial the informant Hargulal PW 1, Jaswant Singh PW 2 and Vishesh Kumar PW 3 broadly narrated the same roles of different accused persons with the difference that while in the FIR it was said that Mahendra accused fired shot and by all the fire shots (i. e. fires shot by Nidhi Raj, Ashok Kumar, Shoorvir and Rajendra) all the other injured persons of the case i. e. other than Tukman Singh were injured, the testimony of the informant PW 1 and Jaswant Singh PW 2 was that Mahendra Singh and Mahi Pal accused both fired and it were these fires which injured the other injured persons (excluding Tukman Singh) and these two witnesses did not say that the pellets fired by Nidhi Raj, Ashok Kumar, Shoorvir and Rajendra struck any of these injured and PW 3 Vishesh had claimed in his evidence at the trial that Mahendra and Mahipal accused fired alongwith Shoorvir accused and their pellets struck these injured. ( 8 ) THE statement. ( 8 ) THE statement. of Tukman Singh CW 1 named 9 of the accused persons (excluding Mahendra accused) as present and said that Nidhi Raj and Ashok Kumar, accused fired at him and injured him. He was silent about the incident with the deceased. In his cross-examination, he also claimed the presence of one Nitu son of Bharat Singh (i. e. Mahendra alias Surendra Singh accused ). ( 9 ) THE dying declaration of Tukman Singh CW 1 was recorded by Karrar Hussain, Executive Magistrate on 1-7-1979 i. e. on the day following the date of occurrence at 12. 15 hours i. e. at noon time. This statement was got proved from PW 4 Dr. D. R. Sharma in his cross-examination at the instance of Rajendra Singh accused. This dying declaration has been marked as Ext. Kha 4. In this dying declaration,. Tukman Singh had claimed the presence of the 5 persons namely Nidhi Raj, Raj Pal, Mahi Pal, Santosh Kumar and a boy being son of Bharat Singh (i. e. Mahendra accused) and claimed that Nidhi Raj, Raj Pal, Mahi Pal and Santosh Kumar accused have started beating the deceased with the barrels of guns. He has further claimed in it that the barrels of the weapons of Nidhi Raj, Raj Pal and Mahipal were pointed towards him (Tukman Singh) and that the fires of Nidhi Raj and Raj Pal struck him. He has further stated in it that the son of Bharat Singh i. e. Mahendra accused fired at his right hand. ( 10 ) AT the trial, the learned Sessions Judge believed the prosecution evidence about the time and place of occurrence but found that the FIR was not lodged at the time it purported to be lodged but was ante timed and that the motive set up by the prosecution was very doubtful. However, he placed great reliance on dying declaration of Tukman Singh CW 1 recorded by Executive Magistrate and believed the prosecution story to the extent of the accused who were named in the dying declaration of this witness namely Santosh Kumar, Nidhi Raj, Raj Pal, Mahipal and Mahendra alias Surendra Singh and convicted these 5 accused as aforesaid and acquitted the remaining five accused namely Shoorvir Singh, Rajendra Singh, Ashok Kumar, Hem Raj and Om Prakash. It is not in controversy that the acquittal of these five accused was not challenged by the prosecution by way of appeal before the High Court. Consequently, their acquittal has become final. ( 11 ) THE claim of the informant Hargulal in his evidence was that he had got the written FIR scribed from his son Vishesh PW 3 sitting at his shop and that taking the village Chaukidar by tractor, he went to the police station Noorpur and lodged it there. The defence suggestion was that no FIR has been scribed in the night but the Daroga had first come to the spot and seen the occurrence and after that sent the dead body to the police station and then after consultation with the witnesses and the partymens the FIR was prepared and ante-dated and ante timed. The FIR Ext. Ka 24 says after narrating the names of the witnesses. "anya BHI KAFI AADMI WAHAN PAR MAUJOOD HAI. " It means that the scribing was done at a place other than the place of occurrence. Then there are sentences in the FIR "report" LIKHAWANEY AAYA HON. MERA BHAI MAUKEY PAR PARA HAI. BAKI GHAYAL BYAKI BHI WAHIN MAUKEY PAR MAUJOOD, HAI. " These sentences also show that the FIR was scribed at the police station. ( 12 ) THE informant, in his cross-examination was given an opportunity to explain the use of these words. Asked in para 27 as to why he had got written in the FIR "report LIKHWANEY AAYA HUN," his explanation was "kyonki POLICE WALEY DUSRI REPORT LIKHETEY HAI AUR MAI REPORT" LIKHANEY GAYA "tha". This explanation was meaningless. His attention was drawn to the words in the FIR "ghayal VAHIN MAUKEY PAR MAUJOOD HAI" and he was suggested that if the FIR were being scribed at the spot, it would have been written, "ghayal YAHIN MAUKEY PAR MAUJOOD HAI. " His explanation was that he get the words "wahin" scribed because he was going to the police station and at the police station, it would have to be written that the injured are present at the spot. This explanation also cannot be accepted. The scribe Vishesh Kumar PW 3 was cross-examined on the subject in para 3 of his evidence. This explanation also cannot be accepted. The scribe Vishesh Kumar PW 3 was cross-examined on the subject in para 3 of his evidence. He stated that he did not ask the informant as to why he had got written in the FIR that the remaining injured are present there at the spot. All these contents of the FIR obviously lead to the inference that it was prepared at the police station and not at the spot. ( 13 ) SECTION 157 Cr. P. C. provides for sending forthwith from the police station a report about the commission of an offence to a Magistrate empowered to take cognizance of such offence on police report. Regulation 101 of the U. P. Police Regulations provides for sending of special report to the S. P. , D. M. and S. D. M. about the heinous offences. ( 14 ) IN this case, the prosecution has placed on record Ext. Ka 26, copy of the G. D. entry of 6. 45 a. m. dated 1-7-1977 about the despatch of special report to the authorities with constable Durvijai Singh. If the FIR has been actually lodged at police station Noorpur at 6. 30 p. m. on 30-6-1977 as claimed by prosecution, the special report would have been despatched to the D. M. , S. P. and others the same evening. Ext. Ka-4 is one special report about the case sent to the District Magistrate. It bears the signature of Virendra Kumar S. I. dated 30-6-1977, but it has been despatched on 1-1-1977. at 6. 45 a. m. on the own showing of the prosecution. Virendra Kumar S. I. has claimed that he left the police station for the spot after giving instruction to the head Muharrir for despatch of special report to the superior officers. He claimed that he left the police station for the place of alleged incident at about 7. 30 p. m. If the special report was ready and then he had signed it before his departure from the police station the special report would have been sent in the same evening and not on the following day at 6. 45 a. m. as is the entry in the G. D. dated 1-7-1979. 30 p. m. If the special report was ready and then he had signed it before his departure from the police station the special report would have been sent in the same evening and not on the following day at 6. 45 a. m. as is the entry in the G. D. dated 1-7-1979. Therefore, if he had made his signature on the special report on 30-6-1977, then it means that the contents of the report was not ready uptill then and he has actually signed only on a blank form. The defence claims that the special report was despatched from the police station after the arrival of the S. O. there. The arrival of the S. O. at the police station is recorded in the G. D. dated 1-7-1977 at 7. 10 a. m. It means that as per the defence the FIR had been scribed at the police station after the return of the S. O. to the police station in the morning on l-7-1977 and thus it was ante dated and ante timed and then the special report was prepared and signed. ( 15 ) ACCORDING to the version of the police officers at the trial Sher Pal Singh, S. O. left for the spot at once on the lodging of the FIR while Virendra Kumar S. I. left the police station for starting investigation. The S. O. is said to have travelled to the spot by Tempo although, a departmental Jeep was available at the police station. It is Virendra Kumar S. I. who is said to have taken this Jeep to the scene of occurrence when he went there. The G. D. entry No. 28 of 6. 30 p. m. dated 30-6-1977 (Ext. Ka 25) on the: other hand records that Sher Pal Singh S. O. and Virendra Kumar S. I. both together made their departure alongwith constables for the scene of occurrence. The inquest report Ext. Ka-3 also records that the S. O. accompanied with S. I. Virendra Kumar and the constables came to village Gauhawar (scene of occurrence) for making the inquest report. This inquest report is signed by the S. O. and the S. I. both. The inquest report Ext. Ka-3 also records that the S. O. accompanied with S. I. Virendra Kumar and the constables came to village Gauhawar (scene of occurrence) for making the inquest report. This inquest report is signed by the S. O. and the S. I. both. The discrepancy between the verbal statement and these two documents (the G. D. entry and the inquest report) is sought to be explained by saying that previously it was decided that both were to go together and subsequently, the programme was changed and Virendra Kumar S. I. was asked to reach the spot later after interrogating the informant etc. This could at the most explain away the discrepancy with the G. D. entry of departure but not the recital in the inquest report. A grave shadow of doubt is consequently thrown over the investigation in this case. ( 16 ) THERE were as many as seven injured in this case. In the ordinary course, the injured are taken to the police station and there the FIR is lodged and from there the injured are sent to the hospital for medical examination and treatment with Chitthi Mazroobi. Here as per prosecution case, the informant went to the police station having the (sic) inquired at the spot and Virendra Kumar S. I. PW 7 came to the spot and prepared the Chitthi Mazroobi about each one of them and dispatched them from the scene of occurrence to the Primary Health Centre, Noorpur for medical examination and treatment. If the case had been registered at the police station at 6. 30 p. m. on the date of occurrence i. e. 30-6-1977 and Virendra Singh S. I. had gone to the police station after the lodging of this FIR as claimed by him, then in the ordinary course, he would have recorded the case crime number alongwith the Section of the offence involved on each Chitthi Mazroobi but the fact is that not even one Chitthi Mazroobi out of as many as seven contains any mention of the crime number and the offences. The case has been described in the Chitthi Mazroobies as a police case. This is one more circumstance which tends to show that the FIR was prepared late and ante - dated and ante-timed. The explanation of the S. I. was that these were accidental omissions. The case has been described in the Chitthi Mazroobies as a police case. This is one more circumstance which tends to show that the FIR was prepared late and ante - dated and ante-timed. The explanation of the S. I. was that these were accidental omissions. These explanation does not satisfy the mind as it is not the case of just one or two omissions. The crime number is also conspicuous by its absence on the photo lash (Ext. Ka 4), challan lash (Ext. Ka 5) and the letter to the Medical Officer Incharge, District Hospital (Ext. Ka 6) prepared by Virendra Kumar S. I. The same explanation has been given by him about these omissions also. These omissions also lead to the same inference. ( 17 ) THEN there is considerable delay in sending the dead body to the mortuary. The corpse carrier Babu Ram Constable (PW 6) in his affidavit given at the trial claimed that he and constable Ayodhya Nath started with the dead body of the deceased for the mortuary in the night at 10. 15 p. m. on 30-6-1977. In the challan lash (Ext. Ka 5), there is no mention of the G. D. entry of the police lines, Bijnor about the arrival of the dead body of the deceased there. In the affidavit of the constable, there was no mention that the sealed dead body was ever taken to the police lines. The endorsements on the challan are only of the medical officer before whom the dead body and the related papers were produced. This endorsement indicates that the dead body was produced before him on 1-7-1977 at 2 p. m. The constable stated that he reached the mortuary at 1. 30 p. m. He has categorically stated that he took the dead body straight to the mortuary. There is no explanation why the normal procedure was circumvented in this case. The challan lash records that the distance between the scene of occurrence and the police station was 5 Kms. and the distance of the scene of occurrence from the head quarter, Bijnor was 48 Kms. In the ordinary course, the sealed dead body, if carried by Tempo as claimed by the constable would have reached the police line/ mortuary in one and a half hours or at the most two hours. and the distance of the scene of occurrence from the head quarter, Bijnor was 48 Kms. In the ordinary course, the sealed dead body, if carried by Tempo as claimed by the constable would have reached the police line/ mortuary in one and a half hours or at the most two hours. To explain the unusual delay, an explanation has been inserted by the prosecution in the affidavit of Babu Ram constable that in the way, the Tempo had gone out of order and due to it, they reached at Bijnor in the afternoon on 1-7-1977. He claimed in his cross examination that the tyre had got burst. He stated that the tempo had gone two furlongs beyond Amera towards Bijnor. He claimed that after starting from the village Guhavar, the Tempo had reached Amera in one or two hours. He stated that the stepney was not replaced by another one (as is the usual practice) but the driver had got the wheel repaired at Haldaur which was one mile away from there and then brought it from there. He claims that for reason of the tyre they had to stay upto 12 noon at the place where the Tempo had gone out of order. The constable admitted in his cross-examination that all these facts have not been narrated in the G. D. of the police station about their return to the police station. Obviously, the explanation has been hatched at the trial to explain the inordinate delay. So each of these circumstances leads to the same conclusion that the FIR was scribed on 1-7- 1977 in the day and ante-dated and ante-timed and recorded as having been lodged on 30-6-1977 at 6-30 p. m. That being so the entire fabric of the prosecution case collapses. I am supported in this regard by an authority Marudnal Augusti v. State of Kerala, 1980 SCC (Cri) 985 : 1980 Cri LJ 446. ( 18 ) WE have narrated above the motive set out by the prosecution in the FIR and at the trial. The accused claimed that they all were members of Janata Party and had lent their support to its candidate in the Lok Sabha and Assembly elections. ( 18 ) WE have narrated above the motive set out by the prosecution in the FIR and at the trial. The accused claimed that they all were members of Janata Party and had lent their support to its candidate in the Lok Sabha and Assembly elections. In his cross-examination, informant Hargu Lal (PW 1) stated that in the Lok Sabha election, the accused persons were in the Janata Party though he admitted that in the Assembly election, the accused persons were supporters of Congress Party. The admission made by him throws a grave shadow of doubt over the motive set up by him. The claim that the accused persons had supported Congress Party in the Assembly Election cannot be accepted as true in view of the fact that no such allegation was made in the FIR that the accused persons had changed their loyalties or had divided their loyalties. He stated that when the accused persons used to canvass for Congress candidate and they had refused, there was no apparent annoyance. While in the witness box he started claiming that on the date of poll a scuffle had taken place between the deceased and the accused persons no such incident was mentioned in the FIR or even in his examination-in-chief. Consequently, it can only be called an improvement made in the prosecution story at the trial, and that too during cross-examination. About this alleged incident, he was made to concede that no altercation had taken place with him. There is no allegation that any candidate of the Congress Party was a relation of the accused persons and so even assuming that the accused persons were canvassing for the Congress Party while complainant side, stood for Janata Party, there appeared no reason for the present occurrence taking place on account of the alleged political rivalry. In fact, the accused persons have produced DW 2 Mahabir Singh, Secretary of the District Ad hoc Committee of Janata Party and filed photographs (Exts. 21, 22 and 23) to prove that the accused persons had supported the Janata Party candidate, in the aforesaid election. Mahabir Singh (DW 2) deposed that he was interned in jail during the emergency period and that when he was released on 23-3-1977, a procession was taken out in Noorpur to welcome him and these photographs (Exts. 21, 22 and 23) to prove that the accused persons had supported the Janata Party candidate, in the aforesaid election. Mahabir Singh (DW 2) deposed that he was interned in jail during the emergency period and that when he was released on 23-3-1977, a procession was taken out in Noorpur to welcome him and these photographs (Exts. 21, 22 and 23) were of the said procession, that the man on the motor cycle in (Ext. 23) was Shoorvir Singh accused who had played an active role in organising that procession. Vichitra Kumar (DW 1) also proved the photographs and supported the defence case that the procession had been taken out to welcome Mahabir Singh (DW 2 ). The prosecution side had made a suggestion to Mahabir Singh (DW 2) that these photographs were of the procession which was taken out in Seohara. Thus, the factum of the procession being taken out to welcome him becomes undisputed whether the procession was taken out at Noorpur as claimed by the defence or at Seohara as claimed by the prosecution. The cordinal fact remains that the procession was to welcome Mahabir Singh (DW 2) the then Secretary of the District Ad hoc Committee of Janata Party and that in this procession, Shoorvir Singh accused has played an active role. Against this back ground the evidence of Mahabir Singh (DW 2) that the accused supported the Janata Party candidate during those elections and that the deceased had also supported the Janata party candidate becomes of great value. He has testified that he was deposing to the facts on the basis of his knowledge acquired during his visit to village Gauhawar and in. view of the above, the claim of motive set up by the prosecution becomes highly doubtful. ( 19 ) WHERE there is eye witness account of the occurrence motive is not a necessary link to be established before conviction could be recorded. Motive often lies hidden in ones heart so apparently motiveless crimes are sometime found. However, if the prosecution sets out a motive at the trial and the same is found to be not true then it does have an adverse impact on the prosecution case and more so in a case like the present where the FIR is found to be ante-dated and ante-timed. However, if the prosecution sets out a motive at the trial and the same is found to be not true then it does have an adverse impact on the prosecution case and more so in a case like the present where the FIR is found to be ante-dated and ante-timed. ( 20 ) THE defence has claimed that the deceased was killed by his enemies who were unknown to the witnesses and that the accused persons were prosecuted on account of enmity. It was elicited from the informant Hargulal PW 1 that a dacoity had been committed at the house of one Makkhan Lal, wherein, the wife of one Ramesh was murdered and that even two dacoits were also murdered in that incident and that in that occurrence Lajpat Rai present deceased was also injured. Naturally, he was a witness of that dacoity. Even then Hargu Lal PW 1 pleaded ignorance about it when suggested that the deceased was a witness of that occurrence. The defence has established that Suresh, Ram Lal and Dewa were accused in the dacoity case and that Tukman Singh (CW 1) was a witness of that occurrence. It is claimed by the defence that the dacoits of the same gang committed the murder of the present deceased and tried to take away his dead body and that they fired at the witnesses when they tried to prevent them from doing so and went away leaving the dead body of the deceased. It was elicited by the defence from the informant in his cross-examination that Laj Pat Rai, present deceased was prosecuted for kidnapping the daughter of one Adityavir and had remained in jail for 3 months in that case. It was further elicited from him that about 4 years before the present occurrence one Daljeet Singh had prosecuted Lajpat Rai, present deceased and the present witnesses Triloki and Hari Om (not examined) for the offence under Section 307, I. P. C. It was further elicited from him that Lajpai Rai was an accused in the murder case relating to Tasir of that village. The defence contention has been that the deceased Lajpat Rai being a notorious type having so many persons as his enemies, any of them could have been his potential murderor. The defence contention has been that the deceased Lajpat Rai being a notorious type having so many persons as his enemies, any of them could have been his potential murderor. Normally, the existence of a number of enemies of the deceased does not by itself believe or improbabilise the prosecution case and it will have to be seen whether the direct evidence led by the prosecution at the trial was worthy of credence. But here the ocular testimony from the prosecution side suffers from serious infirmities noted above and more are to be placed on record. ( 21 ) THE informant Hargulal (PW 1) is real brother of the deceased and if the: motive set up in the FIR were true he too would have been made a target if he was really present at the spot but he is not an injured in the occurrence. Infact, in the prosecution story, he was neither fired at nor manhandled. The defence claim that the informant was not present at the time of occurrence has, therefore, justification behind it. In the FTR it was said that the deceased was taking tea at the shop of Hari Om and he was caught by hairs by Rajpal accused appellant and pulled down from the bench on which he was sitting and taking tea but it was not said there in that Jaswant Singh (PW 2) was also taking tea with the deceased at that time even though in the FIR the name of Jaswant Singh (PW 2) was given among the witnesses who were present at the spot. At the trial, Hargulal informant testified likewise that the accused party advanced towards the deceased who was taking tea at the shop of Hari Om and Rajpal accused caught the deceased by his hairs and pulled him down from the bench. The informant in his testimony claimed that Jaswant Singh and others had come to the spot and seen the occurrence. In his cross-examination the informant stated in para 21 that at the time of pulling by hairs the deceased was holding a tea cup in his hand which fell down. Even at that stage, he did not say that Jaswant Singh (PW 2) was also taking tea with the deceased in the shop of Hari Om much less on the same bench. Even at that stage, he did not say that Jaswant Singh (PW 2) was also taking tea with the deceased in the shop of Hari Om much less on the same bench. Jaswant Singh (PW 2) claimed that he was taking tea with the deceased at the shop of Hari Om. He testified to the pulling of the deceased by catching his hairs. In his cross-examination he stated that the tea cup of the deceased fell down at the time of his pulling but he could not state whether it was broken or not. He claimed in his cross examination that he had gone to the market for taking tea. He admitted that he had his wife and children at home and he got his tea prepared at the house also. In reply to a Court question he stated that at that time he did not take tea prepared at the house because there was no milk. He was made to admit that he kept a she bufalo at his house. He claimed that Tukman Singh (CW 1) came to the spot when he (the witness Jaswant Singh PW 2) was taking tea and had a tea cup in his hand and that only he and deceased were the customers at the tea shop of Hari Om for taking tea. He did not say that anything happened to him when he was sitting on the same bench from where the deceased is alleged to have been pulled down. The defence claim is that he was not present at the spot. It is noteworthy that he is not an injured in the occurrence and that his presence with the deceased was not alleged in the FIR. Obviously, the justification for his presence at the spot has been developed after the FIR. In the ordinary course when he was sitting on the same bench on which the deceased was sitting this fact could have found mention in the FIR. Moreover, if the plea of his being proximate to the deceased were true, he also would have received some injury in the process of pulling. He did not state as to what he did when the deceased was pulled down by catching hairs from the bench on which he was taking tea with the deceased. Moreover, if the plea of his being proximate to the deceased were true, he also would have received some injury in the process of pulling. He did not state as to what he did when the deceased was pulled down by catching hairs from the bench on which he was taking tea with the deceased. I. O. Virendra Kumar (PW 7) and S. O. Sherpal Singh (PW 8) did not make mention of having found any broken cup of tea on the scene of the occurrence. Tukman Singh (CW 1) stated that he came at the shop of Om Prakash and saw that the deceased and Jaswant Singh (PW 2) were taking tea at the shop. However, this is an improvement because in his dying declaration recorded by the Executive Magistrate and in his statement recorded by the I. O. and then in his statement recorded before the Magistrate under Section 164 Cr. P. C. also he did not mention this fact. Tukman Singh has been confronted by the defence in his cross-examination in para 5 of his evidence with the said statement. In reply he claimed that he had told this fact to the I. O. and the Magistrate who recorded his statement under Section 164 Cr. P. C. but he could not give any explanation for the omission. About the dying declaration before the Executive Magistrate he stated that he did not remember whether therein he had given the name of Jaswant Singh or not. He further stated that this omission has been due to his unconsciousness. Considering all the circumstances there appears substance in the defence plea that this witness (Jaswant Singh) was not present at the spot. Vishesh Kumar (PW 3) was an injured in the occurrence. So his presence at the spot cannot be doubted. But he is son of the informant and his testimony cannot be accepted without scrutiny. ( 22 ) VISHESH Kumar claimed about the pulling of the deceased by his hairs by Raj Pal accused and pulling him down from the bench to the ground. However, he did not say that the deceased was sitting at the shop of Om Prakash and also did not say that Jaswant Singh (PW 2) was sitting on the same bench and he also did not say that they were taking tea there. However, he did not say that the deceased was sitting at the shop of Om Prakash and also did not say that Jaswant Singh (PW 2) was sitting on the same bench and he also did not say that they were taking tea there. ( 23 ) WE have already noted earlier that Tukman Singh (CW 1) was silent in his testimony about the murder i. e. about the incident with the deceased. In his further statement he pleaded that he was not sufficiently conscious in the hospital and so he could not say whether he put his thumb impression on any statement. Seeing his dying declaration he could not say whether it bears his thumb impression or not. His further statement was that he was in a precarious condition and at that time he was unconscious and was unable to speak and that sometimes his eyes opened and sometimes closed. He further stated that it was possible that during his unconsciousness he gave wrong facts. He further stated that he did not remember whether these wrong facts had been stated by him or not as he was not properly conscious. He was read over his dying declaration. Thereupon, he stated that it is wrongly written in it that Lakhpat deceased had got up while he was taking tea and that he (the deceased) went five to six paces and the accused party started holding him and beating him by the barrel of gun and that then he raised an alarm and exhorted not to kill and that Santosh Kumar accused made exhortation to kill and further that the accused, who was holding a revolver struck his (witnesss) right hand and that that accused was called Naidu. He further stated that in his dying declaration the name of Raj Pal has been wrongly recorded amongst the persons who had fired at him and it was also wrongly recorded that three persons had pointed the barrels of their guns towards him. He further stated that he did not recollect whether these facts were stated by him or not because he was not fully conscious. He further stated that he had not been able to see these facts due to his being unconscious. He further stated that he had received shots from the fire of guns by Nidhi Raj and Ashok Kumar accused. He further stated that he had not been able to see these facts due to his being unconscious. He further stated that he had received shots from the fire of guns by Nidhi Raj and Ashok Kumar accused. He denied having given statement to the Investigating Officer that Raj Pal accused had pulled down the deceased by catching hold of his hairs and that Hemraj accused gave Danda-blow, Santosh Kumar accused exhorted and Rajendra accused fired at him due to which he (the deceased) fell down. He admitted having given his statement before the Magistrate under Section 164 Cr. P. C. about these facts but volunteered that these facts had not been seen by him but were stated (by him) on the information derived from others. ( 24 ) IN an appeal against conviction the High Court assesses the evidence on record afresh. But here a reference has to be made to the judgment of the Sessions Judge because he has convicted only five out of ten accused at the trial and the acquittal awarded by him to the remaining five accused has become final. Here the crucial question for consideration is whether the conviction of the remaining five accused could at all be sustained in view of the acquittal of the other five accused. The Sessions Judge has stated in his judgment the settled position of law that the dying declaration of a witness who has survived cannot take the place of substantive evidence. Undoubtedly, the dying declaration of the survivor can only be used as a previous statement for contradicting him and in view of the authority Madsoodan v. State of U. P. , AIR 1983 SC 126 : (1982 All LJ 1524), his statement is admissible under Section 157 of the Evidence Act also for corroborating his testimony in Court. The Sessions Judge observed that the condition of Tukman Singh being serious it cannot be said that he could have stated anything falsely on account of enmity etc. , that his statement was an uninfluenced one and that there was nothing to impeach the credence thereof and added that the witness has tried to disown a part of the dying declaration in support of the prosecution version but for that reason the veracity of that statement cannot be doubted. , that his statement was an uninfluenced one and that there was nothing to impeach the credence thereof and added that the witness has tried to disown a part of the dying declaration in support of the prosecution version but for that reason the veracity of that statement cannot be doubted. Here he unwittingly strayed from the proper course and accepted the substantive evidence given by the prosecution at the trial to the extent it was consistent with the dying declaration, infact he virtually took the dying declaration of Tukman (CW 1) as substantive evidence. He did not consider whether the substantive evidence given by him at the trial which was contradicted by his previous statement, namely the dying declaration, could be the safe basis of conviction of one or the other accused persons. In law, only the positive evidence given by Tukman Singh (CW 1) could be made the basis of conviction if at all and that part of the dying declaration which was not deposed by witness Tukman Singh at the trial could not be used as the foundation for conviction of an accused. The dying declaration of the survivor could not be used to corroborate or contradict the evidence of others, namely the prosecution witnesses at the trial. It could only be used to contradict or corroborate the maker of the dying declaration i. e. Tukman Singh (CW 1 ). The Sessions Judge has convicted five accused persons namely Santosh Kumar, Nidhi Raj, Raj Pal, Mahipal and Mahendra accused-appellants before this Court. In his substantive statement at the trial in para 1 Tukman Singh (CW I) has named Nidhi Raj and Ashok Kumar alone for having fired at him. In his dying declaration he has stated that the fires of Nidhi Raj and Raj Pal struck him and that a boy, son of Bharat Singh i. e. Mahendra (who is called Naidu) had fired at his right hand. So if there was any corroboration available from the dying declaration it could be only about Nidhi Raj accused appellant. He (Tukman Singh CW 1) did not name in his testimony as CW 1 Raj Pal as one of the assailants who fired at him and injured him. So if there was any corroboration available from the dying declaration it could be only about Nidhi Raj accused appellant. He (Tukman Singh CW 1) did not name in his testimony as CW 1 Raj Pal as one of the assailants who fired at him and injured him. The Sessions Judge convicted Raj Pal on the basis of his nomination in the dying declaration of Tukman Singh (CW 1) for the offence under Section 302/149, I. P. C. and for the offence under S. 324/149, I. P. C. and thus treated the dying declaration of CW 1 as substantive evidence and disregarded the evidence given by him at the trial which alone was substantive evidence. In fact, he proceeded even a step further because neither in the dying declaration nor in the testimony of Tukman Singh (CW 1) any specific role was assigned to this accused-appellant in relation with the fire at the deceased or at the other injured persons in the case namely Ninal Singh and five others. In the dying declaration there was no mention of fire by him (Raj Pal) at any of the aforesaid six injured persons. It may be mentioned here that in his statement in Para 3 he specifically stated that the name of Raj Pal has been wrongly written amongst the person, who fired at him. If that was so, how the conviction could be made on the basis of his statement as CW 1. It may be that he had deviated at the trial from the statement given by him before the Magistrate recording his dying declaration. But it could be a ground for rejecting his testimony but his dying declaration cannot be substituted in its place as substantive statement so as to make it the foundation for conviction of accused Raj Pal. The Sessions Judge was reluctant for obvious reasons in placing reliance on the testimony of the informant Hargulal (PW 1), Jaswant Singh (PW 2) and Vishesh Kumar (PW 3 ). He had narrated numerous circumstances and observed that these did raise a doubt about the fact that the case had been registered and the FIR lodged at 6. 30 p. m. on 30-6-1977. He found that the motive set up by the prosecution was every doubtful. He was also reluctant to place reliance on the evidence of prosecution witnesses in view of the discrepancy vis-a-vis the dying declaration. 30 p. m. on 30-6-1977. He found that the motive set up by the prosecution was every doubtful. He was also reluctant to place reliance on the evidence of prosecution witnesses in view of the discrepancy vis-a-vis the dying declaration. This dying declaration could have only been used to contradict or to corroborate Tukman Singh (CW 1 ). But when the FIR was doubted for very valid reasons then a shadow of doubt was thrown on the entire prosecution case. Consequently, if there was any occasion for acting upon the evidence to convict any accused, it could only be on the evidence of Tukman Singh (C. W. 1 ). All these are being mentioned only to make it straight that when Tukman Singh (C. W. 1) had excluded fire by Raj Pal accused appellant at him, the Sessions Judge was left with no reliable basis on which he could convict Raj Pal accused - appellant. He could not have convicted Raj Pal accused - appellant for the aforementioned offences on the basis of the prosecution evidence when the evidence of the prosecution witnesses at the trial had been found to be not reliable and when the evidence of Tukman Singh (C. W. 1) was negative in respect of this accused - appellant Raj Pal which negative evidence badly contradicted the oral testimony given by Hargulal (PW 1), Jaswant Singh (PW 2) and Vishesh Kumar (PW 3) at the trial which was all the more reasons for not acting on this kind of evidence so as to convict Raj Pal accused for these offences. ( 25 ) ABOUT Nidhi Raj accused-appellant, no doubt, Tukman Singh (CW 1) stated that he (Nidhi Raj) fired at him and injured him and the dying declaration also he (Sic) (has) supported it on that point. However, here the question is how far the prosecution evidence about the identity of the fires at Tukman Singh CW 1 could be safely acted upon. As noted earlier, as per FIR. , Nidhi Raj accused appellant and Ashok Kumar accused both had fired and injured Tukman Singh (CW 1) and at the trial also the said three prosecution witnesses stated likewise and Tukman Singh (CW 1) also testified like that at the trial. As noted earlier, as per FIR. , Nidhi Raj accused appellant and Ashok Kumar accused both had fired and injured Tukman Singh (CW 1) and at the trial also the said three prosecution witnesses stated likewise and Tukman Singh (CW 1) also testified like that at the trial. But, as noted earlier, in the dying declaration that assailants who fired at him were Nidhi Raj and Raj Pal accused appellants and at the trial Tukman Singh CW 1 did not name Raj Pal accused-appellant as one of the assailants but specifically stated that Raj Pal accused was not amongst the assailants who had fired at him. Further, Ashok Kumar accused, who had been named by all the said three prosecution witnesses and Tukman Singh (CW 1) as one of the firers who fired at him and injured him was acquitted by the learned Sessions Judge on the ground that his name could not find place in the dying declaration made by Tukman Singh (CW 1) before the Magistrate. Consequently, it is difficult to sustain the conviction of this accused Nidhi Raj on the basis of the same evidence in the present case, where, as we have noted earlier, the FIR was found to have come into existence long after, on the next date following the date of occurrence and then ante-dated and ante-timed and wherein the motive set up was highly doubtful and further where the presence of Hargulal (PW 1) and Jaswant Singh (PW 2) at the scene of occurrence appeared to be doubtful. ( 26 ) NOW we take up the case of Santosh Kumar Mahipal and Mahendra accused and also Nidhi Raj and Raj Pal accused so far as it related to conviction for the offence under Section 302 I. P. C. on the basis of vicarious liability with the help of Section 149, I. P. C. The sessions Judge has acquitted Rejendra Singh who fired at the deceased and injured him and caused his death as per prosecution case. The ground may be that his name was not found in the dying declaration given by Tukman Singh (CW 1) and as is obvious the Sessions Judge could not persuaed himself to believe the prosecution evidence about the fire by this accused at the deceased and consequently he acquitted this accused. The ground may be that his name was not found in the dying declaration given by Tukman Singh (CW 1) and as is obvious the Sessions Judge could not persuaed himself to believe the prosecution evidence about the fire by this accused at the deceased and consequently he acquitted this accused. If he came to the conclusion that even the presence of this accused at the scene of occurrence was doubtful, it is difficult to sustain the conviction of other accused-persons, namely Santosh Kumar, Nidhi Raj, Raj Pal, Mahipal and Mahendra present accused appellants for the offence under Section 302 I. P. C. with the help of Section 149, I. P. C. because about Raj Pal accused-appellant it was alleged that he caught hold the deceased by his hairs and pulled him down from the Chabutara to the ground, Shoorvir Singh accused fired towards the deceased which did not strike him, Santosh Kumar accused made exhortation that deceased Lakhpat poses as Leader and he should also be shot dead and all the said three prosecution witnesses and Tukman Singh (CW 1) stated that all these accused persons came to the spot armed with weapons and hurled abuses. It will also be noted that accused Rajendra Singh tried for offence under Section 302, I. P. C. simpliciter and Shoorvir Singh, Ashok Kumar, Hem Raj and Om Prakash, who were facing the charge under Section 302/149, I. P. C. have been acquitted of the same by the Sessions Judge, which acquittal has become final. Here it may be mentioned that Hemraj accused (acquitted by the Sessions Judge) was alleged to have given a Lathi blow on the back of the deceased. Dr. R. R. Sharma (PW 4), who performed the autopsy on the dead body of the deceased, found three abrasions and a contusion, all ante mortem injuries and in his statement too he told to Court that injury No. 1 could have been caused by Lathies. It may also be mentioned here that in his initial statement Tukman Singh (CW 1) did not mention about any assault of any kind by any one on the deceased. Confronted with his statement under Section 161 Cr. It may also be mentioned here that in his initial statement Tukman Singh (CW 1) did not mention about any assault of any kind by any one on the deceased. Confronted with his statement under Section 161 Cr. P. C. made to the Investigating Officer to the effect that Raj Pal had pulled down the deceased from the bench and Hem Raj accused had given Danda blow, Santosh Kumar accused made exhortation and Rajendara accused fired at the deceased due to which he fell down, he denied having made this statement to him and when similar statement given by him to and recorded by the Magistrate under Section 164 Cr. P. C. was confronted to him he stated that he made this statement after asking from others and that he had not seen all these facts with his eyes. It may also be noted that in his statement at the trial there was no mention of any assault by the butts of weapons. It may further be noted that in the dying declaration given by him before the Magistrate. it has come that accused persons started beating him with the butts of guns. When he was read over his dying declaration he replied in para 3 that in it has wrongly been recorded that the assailants had caught the deceased and started beating him with 1997 Santosh Kumar v. State 995the barrels of guns. In view of the acquittal of the principal accused from the charge for the offence under Section 302, I. P. C. simpliciter by the Sessions Judge, which acquittal has become final, it is difficult to sustain the conviction of co-accused persons Shoorvir, Ashok Kumar, Hem Raj, Om Prakash with the help of the provision of Section 149, I. P. C. Even otherwise, in this state of evidence and the circumstances on record it is impossible to place reliance on the same and to uphold their conviction for the offence under Section 302/149, I. P. C. ( 27 ) LEARNED Sessions Judge framed charge under Section 307/149, I. P. C. for the assault on Tukman Singh (CW 1) and other six injured but while making conviction he convicted the present accused-appellants for the offences under Section 307/149, I. P. C. and 324/149, I. P. C. separately and also gave separate sentences. We have already dealt with the assaults relating to Tukman Singh (CW 1 ). We have already dealt with the assaults relating to Tukman Singh (CW 1 ). It may be added here that in his dying declaration it was also stated that the barrel of the weapon of Mahipal, Nidhi Raj and Raj Pal accused-appellants was pointed towards him and in his statement at the trial Tukman Singh (CW 1) stated that it has wrongly been recorded in his dying declaration that the barrel of the gun of three persons was pointed towards him. ( 28 ) WE have noted earlier that as per FIR Nidhi Raj and Ashok Kumar accused had fired at Tukman Singh (CW 1) and injured him and at the trial Tukman Singh named the same persons and in the dying declaration Nidhi Raj and Raj Pal accused were alleged to have fired at him. We have also noted earlier that Ashok Kumar accused has been acquitted by the Sessions Judge for the offences and about Raj Pal accused - appellant his (Tukman Singhs) evidence was in the negative and Raj Pal accused - appellant was not named by informant Hargulal (PW 1), Jaswant Singh (PW 2) and Vishesh Kumar (PW 3) as having fired at Tukman Singh (CW 1 ). He has only made general allegations of the accused persons assembling with weapons and abusing and exhorting "maaro SALON KO". Mahipal Singh and Nidhi Raj accused appellants are said to have joined in exhortation with Ashok Kumar accused. In such a state of evidence of the case, it is not possible to uphold the conviction against the accused-appellants for the offence under Section 307/149, I. P. C. when five co-accused noted above have been acquitted of the charge on the same prosecution evidence. ( 29 ) IN regard to fire arm injuries inflicted on six injured persons, namely Nihal Singh, Prasadi Lal, Ashok Kumar (not to be confused with accused Ashok Kumar acquitted by the Sessions Judge), Bede Devi, Krishna Dutt Sharma and Vishesh Kumar, conviction of the accused-appellants has been made for the offence under Section 324/249, I. P. C. by splitting the charge under Section 307/149, I. P. C. in respect of all the six injured and Tukman Singh injured (CW 1 ). As noted earlier, according to FIR by the fires made by aforesaid accused Nidhi Raj, Ashok Kumar, Rajendra, Shoorvir and also by Mahendra accused six persons noted above were injured. As noted earlier, according to FIR by the fires made by aforesaid accused Nidhi Raj, Ashok Kumar, Rajendra, Shoorvir and also by Mahendra accused six persons noted above were injured. At the trial informant Hargulal (PW 1) claimed that Mahendra Kumar and Mahipal accused-appellants fired with their guns which caused injuries to six injured aforesaid. Jaswant Singh (PW 2) and Vishesh Kumar (PW 3) have made similar statements. So it will be seen that Mahipal has been substituted in the evidence at the trial in place of Rajendra Singh and Shoorvir Singh accused in the FIR in respect of the fires which injured these six injured. Out of them, Rajendra Singh and Shoorvir Singh accused have been acquitted by the Sessions Judge because their names were not found in the dying declaration given by Tukman Singh (CW 1 ). Tukman Singh (CW 1) did not make any mention of any such fires in his evidence. In this state of conflicting and unreliable evidence in this case it is difficult to sustain the conviction of Mahipal Singh, Mehendra Singh, Raj Pal, Nidhi Raj and Santosh Kumar accused-appellants for the offence under Section 324/149, I. P. C. made by the Sessions Judge. The Sessions Judge has taken grave pains in citing various authorities in his judgment that an effort should be made to sift the grain from the chaff, to separate the truth from falsehood. No doubt, in this case murder has been committed and as many as seven persons have received injuries and apparently it was a day right occurrence also but then as noted earlier the prosecution case suffers from grave infirmities and we have noted earlier that the evidence of Tukman Singh injured (CW 1) was an incredible and that one of the injured in this case namely Krishna Dutt Sharma appeared as DW 3 in the trial and he did not name any of the accused appellants as culprits. He (Krishna Dutta Sharma) was also a resident of the same village Godawar and so if the accused persons were assailants in the ordinary course he would have named them and would have not spared them. Consequently, the conviction for the offence under Section 324/149, I. P. C. cannot be sustained in respect of any of the accused appellants. He (Krishna Dutta Sharma) was also a resident of the same village Godawar and so if the accused persons were assailants in the ordinary course he would have named them and would have not spared them. Consequently, the conviction for the offence under Section 324/149, I. P. C. cannot be sustained in respect of any of the accused appellants. ( 30 ) SO far as the charge under Section 143 I. P. C. is concerned, it also cannot be sustained against any of the accused - appellants in such a state of evidence and against the background of the circumstances mentioned above, as it cannot be said with certainty that any of the accused-appellants were present at the spot assembled armed with weapons. Consequently, the conviction of the accused - appellants for the offence under Section 148, I. P. C. also cannot be sustained. The appeal is, therefore, liable to be allowed. ( 31 ) THE appeal is accordingly allowed. The convictions of the accused appellants, namely Santosh Kumar, Nidhi Raj, Raj Pal, Mahipal and Mahendra, for the offences under Section 302/ 149, I. P. C. 307/149, I. P. C. 324/149, I. P. C. and 148, I. P. C. are set aside. They are acquitted of the same. They are on bail from this Court. They need not surrender to it. Their bail bonds are cancelled and the sureties are discharged. ( 32 ) LET a copy of this judgment be sent to the Sessions Judge, Bijnor within a week from today for information and compliance. The compliance report shall be submitted by the Sessions Judge Bijnor to this Court within a month from today. Appeal allowed. .