The then XIVth Addl. Sessions Judge, Moradabad vide his judgment and order, dated 19-2-91 con victed the accused Mukut Singh, appellant on a charge under section 302 1pc and sentenced him to undergo life imprison ment. He, by the same order, acquitted the co-accused Charan Singh, Bnarat and Chander Sen on the charge under Section 302/34, IPC. 2. The prosecution case started on the basis of an F. I R. , (Exhibit Ka.-l), dated 22. 10. 89. In it, the time of occur rence is said to be 21-10-89 at 11 p. m. and the report was registered on 22-10-89 at 9. 45 a. m. The distance of the police station is 14 kms. from the place of occurrence. It has been alleged that on 21-10- 89, the complainant Danvir Singh, P. W. 1 was sit ting with his brother Sri Kalyan Singh, P. W. 2 and uncle Sri Ram Lal (deceased), after taking their meals. The complainant and his brother Sri Kalyan Singh were still talking with each other, whereas their uncle Ram Lai had slept. There was lantern giving light in the cottage. It was about 11 p. m. when the accused Mukut Singh (appellant), Charan Singh, Bharat Singh and Chandrabhan (acquitted) came to the place, where the complainant and his brother were talking. The accused were telling that a good lesson should be taught for Ram Lai (deceased) for bring ing the stay order and on this account, the relation between the two camps had deteriorated. Thus saying, Mukut Singh, appellant fired with his pistol at Ram Lal. The other accused Bharat Singh wielded his Pharsa towards the complainant and accused Chandrabhan put his pistol at Sri Kaiyan Singh, P. W. 4 and said that in case they shouted, they would be shot dead. Thereafter, Raghubir Singh and Mansuri, P. W. 1 came there. But the accused bolted away. Ram Lai had received injuries in his temporal region and died on the spot. 3. On the basis of the said written F. I. R. , a case was registered in the G. D. by Head Constable Sri Kiran Singh and its entry was also made in the chik. 4. The I. O. , Sri Nirankar Singh, P. W. 6 was present at the time when the case was registered at the police station. 3. On the basis of the said written F. I. R. , a case was registered in the G. D. by Head Constable Sri Kiran Singh and its entry was also made in the chik. 4. The I. O. , Sri Nirankar Singh, P. W. 6 was present at the time when the case was registered at the police station. He took the investigation in his hands immediately and recorded the statement of the Head Constable. Thereafter, Danvir Singh, complainant, P. W. 3s statement was recorded and after that, he reached to the spot. He found the dead body of the deceased and held an inquest upon it and prepared the related documents and kept the dead body sealed and sent for post mortem examination. 5. P. W. 5 Dr. Sudhir Singh conducted the post-mortem examination on the dead body of Ram Lal on 23- 10-89 and found the following injuries on his person:- (1) One gunshot wound on the right eye and adjoining the right side face and nose, 6. 5 cm. x 6 cm. x cavit deep. Margins inverted and irregular. Blackening, charring and tatooing present. 6. On internal examination, he found that the right side parietal and frontal bones were fractured. The death was caused due to ante-mortem injuries haemorrhage and shock due to the wounds caused by some fire-arms. The injury was sufficient in ordinary course of nature to cause immediate death. It was possible that the deceased might have sur vived for 5-15 minutes, but not more than that. He had taken his food about 5-6 hours earlier and prior to the death. The death was probable at about the night of 21/22-10-89. 7. After sending the dead body, the I. O. continued the investigation and col lected the blood-stained and simple earth from the spot and kept them in separate containers and prepared memos for them He prepared the site-plan, (Exhibit Ka 8) and submitted the charge sheet (Exhibit Ka 9) after completing the formalities. 8. The prosecution examined the fol lowing evidence to prove its case:- 9. P. W. 1, is Mansuri, a witness cited in the F. I. R. as an eye-witness. But he turned hostile and said that he did not see any thing, nor he gave any statement before the I. O. 10. 8. The prosecution examined the fol lowing evidence to prove its case:- 9. P. W. 1, is Mansuri, a witness cited in the F. I. R. as an eye-witness. But he turned hostile and said that he did not see any thing, nor he gave any statement before the I. O. 10. P. W. 2, Raghuvir Singh, another witness, supposed to be an eye-witness has deposed that he did not see anything and he was also declared hostile and cross-ex amined by the prosecution. 11. P. W. 3, Sri Danvir Singh, the com plainant has narrated the entire story as contained in the F. I. R. He has additionally stated that a road was being carved out by the P. W. D. , which passed through the ter ritory of the complainant. Therefore, his uncle Sri Ram Lai had brought a stay order from the court. Sri Mukut Singh accused was a contractor in the same project. He did not take it well as the deceased had brought stay order and attacked the source of earning. Next morning at about 5-6 a. m. , the complainant got the F. I. R. scribed by Sri Prakash Singh and after sending the same, he took the same to the police sta tion, where he reached at 9 a. m. and gave it to the Head Constable and, thus a case was registered at his behest. 12. P. W. 4, Sri Kalyan Singh, the real brother of the complainant has also deposed in the same veir. Additionally, he has stated that a lantern was there and it was dark night. 13. The other evidence is formal in nature. 14. I. O: Sri Nirankar Singh P. W. 6 has proved the writings of the Head Constable Sri Kiran Singh" (Ex. Ka 16 and Ka 17 ). Thereafter, he proved the investigation process from beginning till end and also proved the documents prepared by him in that process. 15. P. W. 5, Dr. Sndhir Singh con ducted the post-mortem examination and collected the dates as noted above. 16. That accused in his statement under section 313, Cr. P. C. has denied the allegations against him. He has said that on account of enmity, he has been falsely implicated. He has led no evidence in his defence. 17. 15. P. W. 5, Dr. Sndhir Singh con ducted the post-mortem examination and collected the dates as noted above. 16. That accused in his statement under section 313, Cr. P. C. has denied the allegations against him. He has said that on account of enmity, he has been falsely implicated. He has led no evidence in his defence. 17. After perusal of the entire cir cumstances and evidence on the record, the learned trial Court held the accused Mukut Singh guilty on a charge under section 302, IPC and convicted and sentenced him as noted above and after ex tending benefit of doubt to the other three co-accused, namely, Charan Singh, Bharat Singh and Chandrasen, the learned Ses sions Judge acquitted them of the charge under section302/34 IPC. 18. The State has not filed any appeal against the order of acquittal. 19. The accused appellant has felt aggrieved and has filed this appeal. 20. We have heard learned Counsel for the parties and gone through the record, we find that there is much force in this appeal and its deserves to be allowed. 21. The incident is said to have taken place at about 11 p. m. Dr. Sudhir Singh, P. W. 6 has deposed that the deceased might have taken his food about 5-6 hours anterior to his death. Therefore, the inci dent could have taken place at about 5-6 p. m. on that date and not at 11 p. m. as deposed. The reason for it, is that in the post-mortem report, it has been men tioned that stomach containe4100 gms. of semi- digested food. The small intestine contained gases and sliny material. At about 6 p. m. , the villagers never take their food. But the food could have been taken between 7 to 9 p. m. and the murder could have been committed at about 1 or 2 a. m. in that night. This makes the prosecution case, on the point of time, suspicious. Not only this, the complainant Sri Danveer Singh has stated that he got the F. I. R. scribed on the following day and produced the same at about 9 a. m. on 22-10-89. at the police station. This makes the prosecution case, on the point of time, suspicious. Not only this, the complainant Sri Danveer Singh has stated that he got the F. I. R. scribed on the following day and produced the same at about 9 a. m. on 22-10-89. at the police station. But in the cross-examina tion, at page 21 of the paper book, inner page 5, he has stated that he got the F. I. R. scribed from Sri Prakash Singh and took the same to the police station, which is about 14 kms. from his house. This journey was covered on foot because no vehicle was available. The sun rose on 22rlo-79 at about 6. 10 a. m. Normally, the distance of 14 Kms. would not have been covered so easily on foot in order to enable the com plainant to reach the police station at about 9a. m. Anyway, he admits that it took about an hour in scribing the F. I. R. , which is another difficult problem for the prosecution case. The F. I. R. covers only one page. Therefore, it would not take about an hour. At the same page, he said that after the sunrise, the F. I. R. was scribed and it took about an hour. It means that the complainant would have started at about 7. 30 a. m. and not earlier, for the police station. 22, Further, he says on the same page that he gave the written F. I. R. to the I. O. The I. O. took the same and came to the spot. Thereafter, he returned to the police station. The I. O. had reached the place of occurrence from the police station at about 8 a. m. i. e. about 90 minutes prior to the lodging of the F. I. R. , as expressed by the prosecution. Not only, this, he says that the I. O. had come on a jeep and after staying there for some time, he returned back, taking the complainant as well as the scribe Prakash Singh alongwith him, to the police station. The complainant put his thumb-impression at the police station at the behest of the I. O. That shows that the F. I. R. was not registered at 9. The complainant put his thumb-impression at the police station at the behest of the I. O. That shows that the F. I. R. was not registered at 9. 25 a. m. on 22-10-89 at the behest of the complainant, rather, it appears to be the product of the fertile brain of the I. P. or other law-know ing persons. 23. Further, he says that the dead body was brought to the police station and, thereafter, it was sent to the police line. There appears to be no earthly reason as to why the dead body was brought to the police station. Thus the F. I. R. becomes a tainted document and that affects the en tire prosecution story, as observed earlier. He further says at page 20 that we three (the complainant, Kalyan Singh and the deceased Ram Lal) took food at 6 p. m. Hence the time of murder would not be about 2 or 3 p. m. but even later. This way, when he says that within an hour after taking food Ram Lal was shot dead, be comes totally wrong. Not only this, it will take uirte4h4jtime between 2-3 a. m. when the murder could have taken place. That will erode the very basis of the com plainant and his brother Sri Kalyan Singh getting awakened and talking to each other. That is not a time for any person normally to get awakened and continue conversation. So, the fact that the com plainant and Sri Kalyan Singh were al ready awakened, does not inspire con fidence. If it is not so, then none of them could have seen the murder with his own eyes. 24. The complainants brother Sri Kalyan Singh, P. W. 4 says in his examination-in chief that Charan Singh exhorted the other co-accused to murder Ram Lai as he had caused an obstacle in the construc tion of the road. That seems to be the motive for the crime. 25. P. W. 3, the complainant says at page 18 of the paper book, at the bottom that he and Sri Kalyan Singh had also caused obstables in the construction of the road. At page 19, he says that in this process, there was a quarrel between the two parties, although no marpeet took place. So, in the eyes of the accused, Ram Lal, Danveer Singh and Kalyan Singh all stood on one platter. At page 19, he says that in this process, there was a quarrel between the two parties, although no marpeet took place. So, in the eyes of the accused, Ram Lal, Danveer Singh and Kalyan Singh all stood on one platter. Hence, if the accused wanted to kill them, he could have done that so easily. It is not a fact that these persons tried to run away, rather, admit tedly, they were there all along. The ac cused put their weapons against these per sons and ordered them not to shout other wise they would shot them dead. From the record, it does not appear as to why the accused would have soft paddled with these two persons Kalyan Singh and Danveer Singh, when they were equally inimi cal and were very much within their reach. The job could have taken less than a minute or so and the tribulation of facing this murder trial would have also come to an unceremonious end due to lack of wit nesses. But the accused were specially very large-hearted and caused no harm, not even a scratch to these persons. To top it all, Sri Kalyan Singh says at page 26 of the paper book that due to fear, these persons went below their cots and concealed them. Thus they saved themselves. But Danvir Singh, in the examination-in-chief, first para, says that Bharat Singh put his pharsa against him. Chandrasen put his pistol against the complainant. Thus the ques tion of concealing themselves by throwing themselves under the cots, is a pure crea tion of imagination and does not help the prosecution case at all. 26. Sri Kalyan Singh further con tradicts his brother at page 24 when he says that Ram Lai had taken food at about 4-5 p. m. on that date. In that case, the incident could have taken place not at 11 p. m. but at about 8 p. m. on that date. On the point of F. I. R. , Sri Kalyan Singh states at page 25 of the paper book that he does not know as to who went to lodge the report. The I. O. interrogated him at about 10 a. m. He does not know as to who accompanied the dead-body. Not only this, he says at page 25 at the top that after the incident, 50-60 persons arrived on the spot. The I. O. interrogated him at about 10 a. m. He does not know as to who accompanied the dead-body. Not only this, he says at page 25 at the top that after the incident, 50-60 persons arrived on the spot. But on the same page in third para, he says that he did not dis close the names of the assailants to anyone of these persons throughout the night. Why this important and evident situation was concealed from the villagers in that night, is not explained. Further, he says that his brother had gone to the police station before lodging the report after in forming him. Therefore, his earlier state ment that he did not know as to when and who went to the police station to lodge the report, it false. 27. The most glaring feature of the case is that the accused were very-well known to the victim and P. Ws. 3 and 4. They did not try to conceal their faces, although they chose the time of dark night to commit the crime. It means, that they were conscious of concealing their iden tity. It is not in evidence that the accused were hardened criminals. Therefore, they could dare to commit the crime in broad- day-light and so openly without expecting any retaliation from any corner. Hence if the accused chose the night as the time of committing the crime, they should have concealed their faces. But they did not do that. Therefore, the prosecution case be comes unreliable, as there is no evidence to show that at any point of time, that the accused tried to conceal their faces. 28. Not only this, the accused had no business to tell the complainant and his brother that they had come to teach them a lesson for bringing a stay order and con struction of the road could expose them selves before the witnesses. They could have shot dead the deceased and all the three persons before being identified by anyone of them. 29. Not only this, the accused had several types of weapons, including Phar sa, pistol, gun etc. Therefore, if there was any actual intention to murder, all the three could have been murdered. If at all, the only target was Ram Lai, all the ac cused could have used their weapons. But nothing of the sort was done. 29. Not only this, the accused had several types of weapons, including Phar sa, pistol, gun etc. Therefore, if there was any actual intention to murder, all the three could have been murdered. If at all, the only target was Ram Lai, all the ac cused could have used their weapons. But nothing of the sort was done. Only the appellant fired with the pistol at Ram Lal and killed him on the spot. So, it appears to be a case of hit and run in the dark hours of night. It means that the story that the ac cused came in the night, although trying to conceal to themselves from the exposure, yet on the contrary, exposing themselves before all and sundry, including the com plainant and his brother Sri Kalyan Singh is not correct. It seems that somebody under the cover of darkness fired a single shot at the victim Ram Lai and ran away. It is further clear from the controversy regarding the F. I. R. as noted above that till the I. O. came to the spot, there was no F. I. R. in existence. Not only this, there was no knowledge as to who had or could have committed this crime and in that research, these accused were easily available and they were implicated at the behest of better legal brains. Hence the implication of the accused does not appear to be bona fide. That is why, no F. I. R. was sent in the night through the Chowkidar and the com plainant has clearly admitted at page 21 of the paper book that he did not disclose the names of the culprits to the 10 or 20 per sons, who had come there and were con tinued sitting these till morning. Had it been a fact that the complainant and Sri Kalyan Singh could have known the real culprits, they could have certainly told their names to the persons who had as sembled there and it would not have been kept as a closely guarded secret. It was in this background that the I. O. took the cudgels in his hands and helped the com plainant by framing accused in this case, that is all the bunglings were made in the lodging of the F. I. R. 30. The motive is equally unaccep table. It was in this background that the I. O. took the cudgels in his hands and helped the com plainant by framing accused in this case, that is all the bunglings were made in the lodging of the F. I. R. 30. The motive is equally unaccep table. If a road was going to be constructed that was beneficial to the entire village community. Sri Kalyan Singh admits at page 25 of the paper book that the road was for the benefit of the general public Nay, he says that the road was still about 6 ft.-7ft. away from his grove. Hence there was no immediate danger to the road being constructed in the field of the com plainant. However, if anticipating some harm, the deceased had brought stay order from the court. That was simply with a view to save his property and on such a trifling thing, nobody, including the accused could have thought of murdering Ram Lai. Secondly, we will see that the road was for universal benefit, including the P. Ws. Hence they would not oppose such a beneficial project being executed in the village at the cost of the Govt. Normally people hanker for getting such privileges like road, electricity etc. 31. The I. O. has categorically ad mitted at page 30 of the paper book that he did not see the papers relating to the con tract in favour of the accused. He further admits that the road was being constructed by the P. W. D. The theka in favour of the accused was oral. That is why, he further states that he could not ascertain as to who was the real thekadar in that case. The road was still about 5-10 yards away from the field of the complainant. Therefore, firstly he contradicts both the P. Ws. Sri Kalyan Singh and Sri Danveer Singh and secondly, it shows that there was no immediate danger of the complainants property being covered by the road. So, there was no reason for the accused to commit the crime. 32. In the Panchayatnama (Exhibit Ka 10), the names of all the accused have not been noted. The dead body reached the police lines after a considerable delay, vide Exhibit Ka 12 i. e. on 23-10-89 at 10 a. m. There is no effort to explain the inordinate delay. 33. 32. In the Panchayatnama (Exhibit Ka 10), the names of all the accused have not been noted. The dead body reached the police lines after a considerable delay, vide Exhibit Ka 12 i. e. on 23-10-89 at 10 a. m. There is no effort to explain the inordinate delay. 33. This way, the prosecution has miserably failed to prove its case against the accused beyond a shadow of reasonable doubt. The learned trial Court has not carefully analysed the evidence and circumstances on the record and has not gone deep into the matter. Therefore, his conclusions have gone wrong. 34. In the result, the appeal is al lowed. The impugned judgment and order dated 14-2-91 is set aside. The accused appellant Mukut Singh is not found guilty on the charge under Section 302, IPC. He is, accordingly, acquitted of the said charge. He is on bail. His bail bonds and surety bonds are discharged. He need not surrender to them. Appeal allowed. .