S. K. PHAUJDAR, J. ( 1 ) THE present appeal is directed against a judgment and order passed by the lind Addi. Sessions Judge, Banda, on 31. 3. 80 in Sessions Trial NO. 6 of 1979, convicting all the five accused facing the trial for offences under Sections 302/ 149, 307/149 and 148 IPC. The accused persons were sentenced to life imprisonment for the conviction under Section 302/149 IPC, to four years R. I. for the offence under Sections 307/149 IPC and to R. L for two years for the offences under Section 148 IPC. The appeal was preferred by all the five. They were granted bail on the date of presentation of the appeal. During pendency of the appeal however, appellant Ganga Prasad and Satya Narain died. ( 2 ) THE prosecution case was initiated when an FIR was lodged on 22. 4. 78 at 2. 15 P. M. on a report by one Ram Autar Singh at P. S. Pailani, District Banda for an incident that had allegedly taken place at 7 a. m. on the same day. All the five persons who stood convicted by the trial Court were named in the F. I. R. It was stated in the report made to the police station that on the fateful day the applicant Ram Autar, his son Jagdish, and one Dibiya were proceeding from the village for Banda to arrange for bail of one Dwarika. At about 7 a. m. , when they reached near the field of Durjan Gareria of village Aalona, by the side of a canal, the accused persons shouted at them saying that their enemies were within their clutches and they must not be spared. Bala Prasad alias Bala Singh allegedly held a single barrel gun, his brother Gaya Prasad had also a single barrel gun with him, accused Moti Lalhad a double barrel gun and his brother Chhotey Singh was holding a single barrel guo. They were all of the village of the complainant. There was yet another accused Satya Narain Singh hailing from village Tihar, P. S. Bithar, district Hamirpur, who was a brother-in- law of Bale Singh and who had been, for three/to four years, living in the village of the complainant. This Satya Narain allegedly held a pharsa. They were all of the village of the complainant. There was yet another accused Satya Narain Singh hailing from village Tihar, P. S. Bithar, district Hamirpur, who was a brother-in- law of Bale Singh and who had been, for three/to four years, living in the village of the complainant. This Satya Narain allegedly held a pharsa. It was stated in the FIR further that after the exhortation as above, they ran towards the path-way by the side of the canal (Patri-Par Aakar) and Bale Singh and Moti Lal opened fire on Jagdish, the son of the complainant. Jagdish fell down at that spot itself. Chhotey and Gaya Prasad opened fire on the complainant and Debiya, but they were not hurt. These two persons and Satya Narain chased them. The FIR further indicates that two other persons, Ram Singh and Ram Senehi of village Aalona and another man Shiv Pujan of village Samtihar, were also coming the same way and were about 30 to 35 steps, behind the complainant and his associates. They rushed to the spot and shouted at the accused persons not to fire. The accused then fled towards the jungle. As a motive, it was indicated that Bale Singh and Gaya Singh were in inimical terms with the family of the complainant and about five months prior to the incident they lodged a false report at the police station against Chhotey Lal, the younger son of the complainant, and due to this enmity they killed Jagdish and had attempted to kill the complainant and Debiya as well. Jagdish suffered injuries on his abodoment and face and head, and he breathed his last at the spot. To explain the delay in lodging the FIR, it was stated that the accused persons had blocked the road for the police station and with much difficulty the complainant came to the police station leaving the dead-body under the care of Jagdeo Singh and Pebiya and certain other villagers. ( 3 ) INVESTIGATION was taken up. The spot was visited, a site-plan was prepared on the statements of the eye-witnesses. The seizures of the wearing apparels on the dead-body, of blood-stained earth and standard earth were made from the place where the dead-body was found. A piece of sleeper and a muffler, said to be belonging to the deceased, were also seized at another point, a bit away from the dead-body. The seizures of the wearing apparels on the dead-body, of blood-stained earth and standard earth were made from the place where the dead-body was found. A piece of sleeper and a muffler, said to be belonging to the deceased, were also seized at another point, a bit away from the dead-body. The dead-body was sent for post-mortem examination which was conducted by Dr. S. A. Zaman and, in addition to several gun-shot ante-mortem wounds, the doctor found a lecerated wound, two and half cm. x three-fourth cm, as well. The post-mortem examination was conducted at about 4. 30 p. m. on 25. 4. 78 and the probable time of death was then 1 1h days from the time of post-mortem examination. ( 4 ) IN the charges that were framed against the accused persons, it was stated that on the relevant date they had shared a common object of killing-Ram Autar, Debiya and Jagdish and had formed an unlawful assembly being armed with deadly weapons and had used their arms in prosecution of their common object and were, thus, liable under Section 148 IPC. It was also stated that in prosecution of that common object, Bale and Moti Lal had opened fire on Jagdish and thereby caused his death and all of them were liable for the offence under Sections 302/149 IPC. In the third charge, Tit was stated that in prosecution of the aforesaid common object, Gaya Prasad and Chhottey Lal had opened fire on Ram Autar and Debiya under such circumstances and with such intention that if they had killed them by such act. They would have been guilty of murder and thereby they were liable for an offence under Section 307/149 IPC. The accused persons denied the charges and claimed to be tried. The trend of cross-examination suggested a defence, and that was the plea of the accused persons in their statements under Section 313 Cr. P. C. also, that they were falsely implicated. It was suggested that each of the family members of the complainant, especially the deceased Jagdish, was a hardcore criminal and Jagdish was killed not at the time indicated in the FIR and not in the manner suggested, and due to undisputed enmity only the names of the present accused persons were indicated in the FIR after deliberation and discussion. It was suggested that each of the family members of the complainant, especially the deceased Jagdish, was a hardcore criminal and Jagdish was killed not at the time indicated in the FIR and not in the manner suggested, and due to undisputed enmity only the names of the present accused persons were indicated in the FIR after deliberation and discussion. ( 5 ) THE prosecution had examined Ram Autar (P. W. 1), Debiya (P. W. 2), Ram Singh (P. W. 3) and Ram Sanehi (P. W. 4) as witness on the point of Panchayatnama of the dead body. P. W. 6 Vijai Bhadur was the scribed of the FIR, P. W. 7 Sher Singh was incharge of investigation for a short time and had submitted the charge-sheet, P. W. 8 Ramesh Chand Pandey was the Head Moharrir at P. S. Pailani who recorded the chick FIR on the receipt of a written report from Ram Autar. P. W. 9 is a constable Durga Prasad, who carried the dead body and the relevant papers to the mortuary, and had brought back the report and the underwear etc: from the doctor who conducted the postmortem examination. P. W. 10 is the doctor, Sri S. A. Zaman, who held the post-mortem examination on the dead body of Jagdish, P. W. 11 Lalla Prasad Sonkar is a police officer who proved certain papers written by the investigating officer, Abdul Rasheed. This police officer, Abdul Rasheed, was examined as P. W. 12 who had made the panchayatnama, sent the dead-body for post mortem examination, made seizures, made a site-plan, examined witnesses and he also brought on record papers to show that on the night between 20th and 21st of April, 1978 certain persons were surrounded while making a preparation for committing dacoity, some of them could be arrested but the deceased Jagdish, although identified to be a person present in the assembly, had managed to escape. ( 6 ) THE learned defence counsel basically questioned the acceptability of the eye-witness account in the light of the medical evidence and on the description of the different spots as indicated in the sketch map by the investigating officer. It may be recapitulated that in the FIR it was stated that the accused persons shouted out at the complainant and others on the road running by the side of the canal. It may be recapitulated that in the FIR it was stated that the accused persons shouted out at the complainant and others on the road running by the side of the canal. It was not indicated whether it was the northern flank of the canal or the southern flank. In their evidence, all the eye-witnesses stated that the accused persons were hiding at a place, marked B in the sketch-map, on the southern flank of the canal Making a shout from that place they walked and waded through the water of the canal to come over to the northern flank to point TCT wherefrom they shot at Jagdish. According to them, Jagdish received gun-shots while he was on the northern flank. There was a culvert over the canal at the place and it is the uniform statement of the eye-witnesses that Jagdish, after receipt of the gun-shots, ran towards south by that culvert and fell at point D on the road itself. The dead-body, according to them and to the investigating officer, was found at point D. The chappel and the muffler of the deceased was hund at point ET, not on the- road but towards east of the road at some distance from point D and this distance has not been given by the investigating officer in his statement although the distance between the other points, A, B, C and D have been given. The statement of the doctor, P. W. 10, was highlighted by the defence in support of their theory that it was impossible for Jagdish to have run the distance between points A and 0: having suffered the injuries as described by the doctor. According to P. W. 10, there were three antem-mortem injuries on the person of Jagdish. One was on the head. The second was on the cheek and the third was on the abdomen. This injury at the abdomen had penetrated deep into the body injuring the lumer vertebra which was fractured and the spinal chord was also shattered. In cross-examination, the doctor clearly stated that after the receipt of injury No. 3, the deceased must have fallen down and there was no chance of his running away. He reinforces his opinion in the next sentence to say that there was feeble chance of his running from that place (3 Bhut Kam hai ). In cross-examination, the doctor clearly stated that after the receipt of injury No. 3, the deceased must have fallen down and there was no chance of his running away. He reinforces his opinion in the next sentence to say that there was feeble chance of his running from that place (3 Bhut Kam hai ). The doctor further stated that injury No. 1 could have been caused by a lathi which could have been caused by fall also but then it should have been associated with contusion and abrasion. ( 7 ) A story has been tried to be developed, for reasons best known to the prosecution, that the shot had hit Jagdish at place A on the northern flank of the canal although his dead-body was found at point D on the southern flank. The defence suggested that these two points were 100 yards apart. The investigating officer however, accepted that the distance was about 10 steps. No statement was made either in the FIR or in the statements under Section 161 Cr. P. C. that the incident had taken place in the northern flank of the canal. The investigating officer, P. W. 12, accepted that the story of Jagdish running away after receipt of the shots was not stated, rather the FIR makes it clear that the witnesses had claimed that Jagdish fell down after receipt of the shots. The investigating officer further stated that although there was no statement in 161 Cr. P. C. that the accused persons crossed the canal and then opened fire, he had indicated in the site plan. In the next sentence the investigating officer admitted that the site-plan was prepared on the basis of statements of Ram Autar and others. If no statement was made by the witnesses that the accused persons had crossed the canal to shoot at Jagdish it is not understood how the investigating officer could get that story to locate the path of the accused persons crossing the canal. It is further not understood how the investigating officer could indicate point A as the point where Jagdish had received the shots. If it is accepted that point A was located to him by the eyewitnesses, there was no stain of blood at the spot although Jagdish, according to the initial depiction of the story, had fallen down on the receipt of the gunshot. If it is accepted that point A was located to him by the eyewitnesses, there was no stain of blood at the spot although Jagdish, according to the initial depiction of the story, had fallen down on the receipt of the gunshot. It was suggested to him that the story of running away was created only because blood was found not at point A, but at point D and the dead- body was also found there: There is nothing on record to indicate any trail of blood in between points A and D. There is no explanation why the muffler and one piece of sleeper of Jagdish would be found at a place other than point TOT. The doctor has accepted that the time of death could be 7 a. m. of 22. 4. 78 and could as well be four hours therefrom on either side. A probability is there, according to this evidence that death might occur even at about 3 a. m. of 22. 4. 78. ( 8 ) THE nature of the eye-witness account may now be seen. Ram Autar is the father of the deceased. He is the maker of the FIR and is also an alleged eye-witness. According to him, Bale and Moti opened fire on Jagdish who was on the northern flank of the canal then. When the accused persons fled away after the arrival of Ram Singh and others, he went near his son and found that he was lying dead on the southern flank. He explained the delay in lodging the FIR with a story that while he was proceeding for the police station he found the accused persons lying in wait on the road. He took a circuitous route and reached village Khaptiha where he met Vijai Bahadur and got the report written by him. This was made over to the police station. Neither in his statement nor in the statement of P. W. 6 Vijai Bahadur, there is any indication as to when the report was written at village Khaptiha. His cross-examination indicates that his son Jagdish was involved in many cases of dacoity although he says that all these cases were falsely lodged. This was made over to the police station. Neither in his statement nor in the statement of P. W. 6 Vijai Bahadur, there is any indication as to when the report was written at village Khaptiha. His cross-examination indicates that his son Jagdish was involved in many cases of dacoity although he says that all these cases were falsely lodged. It was admitted by him that a day prior to the death of Jagdish another son of Ram Autar was arrested: Papers have been brought on record to show that this was the case relating to preparation for dacoity in which Jagdish was also spotted but he made good his escape. This witness explains that village Khaptiha was four miles away from the place of occurrence. From Khaptiha he walked for another hour to Kaleshwar Baba and then he to9k a bus for Pailani. According to the FIR, however, Pailani was only 10 miles away from the place of occurrence: He accepted that while making to the police station he did not see the accused persons anywhere and only some person told him that they were lying in wait. He did not name those persons before the police. He accepted that he did not narrate to the police that the killing was done on the northern flank of the canal. He accepted that immediately upon receiving the gun-shot Jagdish fell down. He did not inform the police either in the FIR or in 161 Cr. P. C. statement that after receipt of the gun-shot Jagdish ran for 7 to 8 steps before falling down. P. W. 2 Dehiya gave almost a similar version as given by P. W. 1. In cross- examination it was asked to him whether Jagdish had fallen at the spot where he received the gunshots. He admitted that he did not see if after receipt of gun-shot Jagdish fell down then and there or ran away and fell thereafter. This statement alone takes away the probative value of the statement of this witness as an eye-witness. He accepted that there were jungles to the south and west of the place where the dead-body was found. He also accepted that his son too was involved in cases of dacoity. This statement alone takes away the probative value of the statement of this witness as an eye-witness. He accepted that there were jungles to the south and west of the place where the dead-body was found. He also accepted that his son too was involved in cases of dacoity. ( 9 ) FOR P. W. 3, Ram Singh it was pointed out by the learned defence counsel that the witness was produced bapardah (covering his face) even at the time of his deposition. This suggests that he was facing a serious offence involving his identification from which he wanted to protect himself. He was examined by police 2 or 3 days after the incident. He explains his presence at the spot saying that he had gone out to answer a call of nature. He did not state to the police in his earliest statement that he had gone to the spot for that purpose. According to him, Jagdish knelt down on receipt of the gun-shot and then ran towards the south. This story was not, however, stated in the initial statement. He accepted that prior to the present incident he was involved in a case of dacoity. He was also involved in a proceeding under the Maintenance of Internal Security Act. He has accepted that there was a case under the Goondas Act against him and he was at that relevant time in custody in the proceedings under the Goondas Act and a case for dacoity. P. W. 4 Ram Sanehi is the last alleged eye-witness. He too was produced bapardah for his deposition. According to him, he never made a statement before the police and the darogaji did not meet him till the date on his examination in the court. ( 10 ) WITH the present nature of eye-witnesses, with the development of the story, with the shift of the place or alleged shooting read with the improbability of the injured having walked the distance with a shattered spine, it is difficulty to put reliance on the prosecution story. Undisputedly, Jagdish was a man of Shady character involved in many cases and was wanted in an immediate incident that had occurred a day ahead of his killing. Undisputedly, Jagdish was a man of Shady character involved in many cases and was wanted in an immediate incident that had occurred a day ahead of his killing. The evidence of the doctor not only suggests that he could not have run the distance with such an injury, it further suggests that there was definitely a lathi injury on his head for which the prosecution has not come up with any theory. The doctor further accepted that the time of death could go back to 3 a. m. of 22. 4. 78. Papers have come to show that Jagdish was wanted in the case under Sections 399/402 IPC that had taken place a day ahead in which his brother Dwarika was arrested. It was not normal for him, therefore, to have accompanied his father Ram Autar for Banda for taking necessary steps for taking out Dwarika on bail. It could have been done by Ram Autar and others but normally Jagdish, with the immediate back ground of suspected preparation for dacoity, should have tried to hide himself from public view. The dead-body was found at point D and on that side of the canal jungle was not far away. No explanation has come as to why his muffler and sleeper would be found not near his dead-body, rather at some distance. The evidence on record not only makes the prosecution story doubtful but also makes the defence suggestion probable that Jagdish might have been killed by some other enemy during night and when the dead-body was discoved the known enemies were named in the FIR. There is also no good explanation for the delay in the FIR and the story made out for the delay that the accused persons were lying in wait on the way was not at all proved as the complainant accepted that it was only a hear say version and he never earlier named the persons from whom he got that story. ( 11 ) IN view of what has been discussed above, it must be held that the prosecution has failed to prove its case beyond reasonable shadow of doubt and the benefit thereof must go to the accused persons. The appeal, in the result, stands allowed and the appellant, are acquitted and are discharged from their bail bonds. Appeal allowed. .