B. K. SHARMA, J. This is an appeal against the judgment dated 28-8-95 and order of sentence dated 29-8-95 passed by Sri. R. N. Verma, the then Additional Ses sions Judge, Rampur in S. T. No. 47 of 1992 (State v. Ahmad Jan and three others), under Section 302/34, IPC, Police Station Bilaspur, District Rampur, whereby he convicted all the four accused appellants, namely, Ahmad Jan, Nabi Jan, Ayub Khan and Shahin Khan, of the offence under Section 302/34, IPC and sentenced each one of them to suffer rigorous imprison ment for life. 2. It is a double murder case. Mohd. Jaan Khan and Mohd. Rais Khan, were the two deceased in this case. The informant was Mohd. Akeel Khan (PW-1), son of Mohd. Jan Khan deceased and brother of Mohd. Rayees Khan deceased. 3. Prior to the present occurrence murder of Ali Jan. real brother of Ahmad Jan and Nabi Jan, present accused-appel lants No. 1 and 2 had taken place and therein the present informant Mohd. Akeel Khan (PW-1) and both the present deceased Mohd. Jaan Khan and Mohd. Rais Khan, were standing trial. 4. The prosecution story is that on 28-8-1991, the date fixed in that murder case, the present informant Mohd. Akil Khan and both the present deceased Mohd. Jaan Khan and Mohd. Rais Khan, were going by a tempo, which was driver by Sri Prakash Singh driver at 8. 45 a. m. for the check post in the village for the purpose of going to courts of Rampur to appear on the date fixed in the aforesaid trial, that when the tempo reached at a distance of one Km. Rais Khan, were going by a tempo, which was driver by Sri Prakash Singh driver at 8. 45 a. m. for the check post in the village for the purpose of going to courts of Rampur to appear on the date fixed in the aforesaid trial, that when the tempo reached at a distance of one Km. towards the west of Bengali Colony towards Akeen Bilaspur, all the four accused-appellants came out from the border of the road, that out of them Ahmad Jan and Nabi Jan were armed with fire-arm and Ayub Khan and Shahin Khan accused-appellants were armed with patal, that they surrounded the tampo and ex horted, "maar LO SALON KO" and made fire, which struck both the present deceased and Ayub Khan and Shahin Khan accused-appellants inflicted numerous injuries with patal on the bodies of the present deceased, that finding an oppor tunity the informant went away from the tampo and stood at a distance of 2 to 3 paces from there, that after committing the double murder, all the four accused-appellants went away towards south in the sugarcane crop, that the occurrence was seen by Siraj Khan, Imran Khan, Shafiq Ahmad and Prakash driver but none of them helped the victims out of fear of the accused-appellants. According to the prosecution, the FIR of this occurrence was got scribed by the informant from Zameer Khan (PW-5) and the informant went to Police Station Bilaspur and lodged the FIR of this occurrence there at 10. 05 a. m. on the same day, on the basis of which chick report was prepared and a case was registered at the Police Station against all the four accused-appellants. 5. The I. O. Surendra Singh, S. H. O. , Police Station Bilaspur (PW- 6) went to the spot accompanied by Sanjaybhardwaj, S. S. I. (PW- 3 ). The dead bodies of both the deceased were found lying inside the tampo in question at the spot. Inquest proceedings were taken by Sanjai Bhardwaj, S. S. I, and dead bodies were sent for post-mortem. In spot inspection a purse and photo of Ahmad Jaan accused-appellant was found lying at the spot. 6. After the investigation was com pleted, charge-sheet was submitted against all the four accused- appellants and they were committed to the Court of Ses sions for trial. 7. The post-mortem on the deadbody of Mohd. In spot inspection a purse and photo of Ahmad Jaan accused-appellant was found lying at the spot. 6. After the investigation was com pleted, charge-sheet was submitted against all the four accused- appellants and they were committed to the Court of Ses sions for trial. 7. The post-mortem on the deadbody of Mohd. Jaan Khan deceased was per formed by Dr. S. P. Singh (PW-7) on 29-8-91 at 12. 30 p. m. The material observations were as follows: Probable age: About 60 years. Probable time since death : About one and half day. External Examination Condition of body Average built body R. M. as regards mus- passed of from upper ex- cularity and stout- tremities and passing off from ness, emaciation lower extremities. P. M. stain -rigor mortis and ing present on back and but -decomposition lock. Abdomen slightly dis- tended. Both eyes partly open. Ante mortem injuries (1) Incised wound 6 cm. x 2 cm x brain cavity deep on Rt. side head just above Rt. ear. (2) Incised wound 2 cm. x 1/2 cm x bone deep over outer angle of Rt. eye brow. (3) Incised wound 7 cm x 1 cm x bone deep over Rt. mandible region. Under both the in mandible cut. (4) Incised wound 1 cm x 1/2 cm x bone deep over Rt. side of nose. (5) Incised wound 1 cm x 1/2 cm x muscle deep over Lt. nostril. (6) Incised wound 6 cm x 2 cm x bone deep over Lt. side of head 4 cm about Lt. ear. (7) Incised wound 3 cm x 1/2 cm muscle deep over Rt. side neck and its middle. (8) Incised wound 4 cm x 2 cm x muscle deep over top of Rt. shoulder. (9) Incised wound 2 cm x 1/2 cm x muscle deep over front and inner aspect of Rt. forearm and its middle. (10) Incised wound 3 cm x 1/2 cm x bone deep over back of Rt. wrist joint. (11) Incised wound 2 cm x 1/2 cm x 10 cm muscle deep over outer aspect of Rt. side of chest and its middle 10 cm back Rt. axilla. (12) Incised wound 1 cm x 1/2 cm x muscle deep over Rt. side of hip in its middle. Kha-lnternal Examination (Head and Neck : Inj. noted) Scalp, skull bone (ver- Inj. noted, tex): Rt. side of chest and its middle 10 cm back Rt. axilla. (12) Incised wound 1 cm x 1/2 cm x muscle deep over Rt. side of hip in its middle. Kha-lnternal Examination (Head and Neck : Inj. noted) Scalp, skull bone (ver- Inj. noted, tex): Rt. temporal and parietal bone cut under inj. No. (l) Membranes: Cut under Inj. No. (1) Brain: Lacerated under inj. No. 1, clotted blood present over surface of brain. Thorax Walls, ribs and cartilages: Inj noted. Pleura: Congested. Right lung Congested. Left lung Abdomen Stomach and its contents: Empty. Small intestine and its contents: Gasses and faecal matter. Large intestine and its contents: Gasses and faecal matter. Pancreas: Congested. Spleen with wt. : Congested, 120 gm. Kidneys with wt. : Congested, 125 g. both. Bladder: Empty. In the opinion of the doctor the cause of death was due to coma as a result of A. M. inj. of head. 8. Post-mortem on the dead body of Mohd. Rais Khan deceased was performed by the same doctor on the same day at 1. 30 p. m. The material observations were as follows; Probable age: about 35 years. Probable time since death : About one and half day. External Examination Condition of body as : Average built body R. M. regarding muscularity passed off from upper and stoutness, emacia- Ext. passing off from tion rigor mortis and lower Ext. P. M. staining decomposition. present over back and but- tock. Abd. slightly dis tended, both eyes partial ly closed. Antemortem injuries (1) Two incised wound in an area of 10 cm x 6 cm one and Lt. side of face 4 cm below from the outer angle of Lt. eye, underneath mandible bone cut. Each wound measuring 8 cm x 1. 5 cm x bone deep. (2) Incised wound 4 cm x 1 cm x muscle deep over Lt. side of face just below angle of Lt. eye. (3) Incised wound 6 cm x 2 cm x bone deep over Lt. side of chin, underneath inj. bone is cut. (4) Incised wound 10 cm x 2 cm x frac tured bone deep over front of neck just below thyroid cartilage underneath the inj. trachea and larynx cut. (5)Incised wound 4 cm x 2 cm x muscle deep over top of left shoulder. side of chin, underneath inj. bone is cut. (4) Incised wound 10 cm x 2 cm x frac tured bone deep over front of neck just below thyroid cartilage underneath the inj. trachea and larynx cut. (5)Incised wound 4 cm x 2 cm x muscle deep over top of left shoulder. (6) Fire arm wound of Entry 3 am x 3 cm x chest cavity deep over Rt. side of chesd 8 cm above Rt. nipple. Margins laceratea, inverted, blackening, scorching present. (7) Fire-arm wound of entry 3 cm x 3 cm x chest cavity deep towards Rt. side of Chest 4 cm below Rt. nipple. Margins lacerated, inverted, blackening, scorching present. Internal Examination Head and Neck: Inj. noted. Head and Neck: Inj noted. Membranes: Pale. Thorax Walls, ribs and cartilages: Inj. noted. Pleaura : Rt. pleaura lacerated under inj. No. 6 and 7, Lt. pleaura pale. Larynx, trachea : Larynx trachea cut under inj. No. 4 and bronchi. Right lung: Badly lacerated. Left lung: Pale. Additional Remarks: One litre fluid and clotted blood and in Rt. Chest cavity, 11 pallets recovered from Rt. lung, pieces of wadding cork recovered from Rt.- Chest cavity. Abdomen Stomach and its contents: Empty Small intestine and its contents : Gases and faecal mater. Large intestine and its contents: Gasses and faecal matter. In the opinion of the doctor cause of death was due to shock and haemorrhage as a result of A. M. injuries. 9. At the trial the ocular testimony was given by Mohd. Akeel Khan (PW-1), son of Mohd. Jan Khan present deceased and brother of Mohd. Rais Khan present deceased, Siraj Khan (PW-2) s/o Sardar Khan, and son-in-law of Mohd. Jaan Khan present deceased. Another eye-witness of the occurrence, Shafique Ahmad (PW-4) did not support the prosecution case and was declared hostile by the prosecution. Rest of the evidence was of formal nature. 10. The learned Sessions Judge believed the prosecution case and con victed and sentenced the accused-appel lants as aforesaid. 11. Heard learned Counsel for the parties and gone through the record of this case. It was double murder case whoever might have been the assailants. Two types of weapons were used, namely, fire- arm and sharp-edged heavy cutting weapon. The antemortem injuries of both the deceased persons were sufficient to cause their death. 12. 11. Heard learned Counsel for the parties and gone through the record of this case. It was double murder case whoever might have been the assailants. Two types of weapons were used, namely, fire- arm and sharp-edged heavy cutting weapon. The antemortem injuries of both the deceased persons were sufficient to cause their death. 12. It is also established from the evidence on record that the occurrence took place on the date of occurrence at the time and place as claimed by the prosecu tion and that both the present deceased were done to death by fire-arm by sharp edged heavy cutting weapons, inside the tempo belonging to Prakash Singh driver on the Rasta. The dead bodies were found inside the very tempo one was inside the back portion of the tempo and another was having on the seat of the driver when the I. O. Surendra Singh PW-6, the then S. H. O. PS, Bilaspur reached at the spot accompanied by Sanjai Bhardwaj S. S. I, of the Police Station. Inquest report and con nected papers were prepared by Sanjai Bhardwaj S. S. I, in the presence of the I. O. He found blood stains and empty cartridges and 2 bullets at the spot. There were blood stains inside the tempo also. He also found articles belonging to the deceased persons at the spot. The defence also does not dispute the site of the occur rence and that both the deceased were done to death inside the tempo. 13. Before we proceed to discuss the testimony of the eye- witnesses, we may point out that in assessing the value of the evidence of the eye-witnesses, there are two principal considerations (1) whether in the circumstances of the case, it is pos sible to believe their presence at the scene of occurrence or in such situation as would make it possible for them to witness the facts deposed to by them, (2) whether there is anything inherently improbable or unreliable in their evidence. In respect of both the considerations circumstances either elicited from those witnesses them selves or established by other evidence tending to improbability their presence or to discredit the veracity of their statements will have a bearing upon the value which a court may attach to their evidence. 14. The claim of the learned Counsel for the accused-appellant is that none of the two eye-witnesses Mohd. 14. The claim of the learned Counsel for the accused-appellant is that none of the two eye-witnesses Mohd. Akeel Khan PW-1 and Siraj Khan PW-2 were at all present at or near the scene of occurrence when the double murders took place. It is true that prior to the present occurrence, the murder of Ali Jaan the real brother of Ahmad Jaan and Nabi Jan present ac cused-appellants had taken place and the present informant Mohd. Akeel Khan and both the present deceased were facing trial for that murder and that in that murder 28-8-1991 was the date fixed in the Courts at Rampur so that in the ordinary course all the 3 were quite likely to go on that date from their residence to Rampur to attend their trial. It seems that both present deceased were going together towards Rampur on the date of occurrence some times prior to the opening of the courts by the tampo in which their murder was com mitted. 15. The learned AGA claims that be cause the informant was himself also an accused in the same murder case alongwith both the present deceased, in the ordinary course, they all would be going from their house to Rampur to attend his trial in that murder case and that in the ordinary course, all the three of them would be going together for Rampur for this pur pose. It has also been pointed out that it was he, who lodged the FIR to this case and claimed that this circumstance goes to cor roborate the prosecution case about his presence at the spot. The contention of the learned Counsel for the accused- appel lants on the other hand is that it occurs very often that some one or the other of the accused persons at a trial remain absent on the dates fixed in the trial remain absent on the dates fixed in the trial and seeking exemption of their attendance from the court on one ground or the other and so there could be no presumption that every accused in a murder trial must be going to the courts on every date fixed in the trial. It is argued that very often while some of the accused go to the courts for. It is argued that very often while some of the accused go to the courts for. instructing their Counsel at the trial and others seek exemption of their attendance, unless it is a case in which the accused were not known to the eye-witnesses from before and identification proceedings have been held by the prosecution so that the trial cannot proceed if even one of the accused is absent on a date. The present is not a case of identification as per prosecution. So obviously there cannot be a conclusive presumption in such a case that this ac cused (present informant) must be going and going together with the remaining ac cused persons of the case (the present deceased persons) to the courts prior to the time of opening of the courts for at tending their trial. Whether they were so going will have to be determined in this case on its own facts and circumstances. All that can be said is that in such a case all the accused persons were quite likely to go together to the courts on every date but any one or more of them could abstain on any particular date for one reason or the other. The learned Counsel for the accused-ap pellant has placed before me almost con clusive material from the record which rules out the presence of the informant in the tempo carrying the two deceased on the road. One circumstances is that he was not an injured in the occurrence. The in juries on the body of an eye-witness are the hall mark of his presence at the spot. In this case, if the accused-appellants had a mo tive to commit the murder of the two present deceased, they had an equally strong motive to commit murder of the present informant who was a co-accused in the same murder case. So in the ordinary course, if the motive for committing the murder of the two present deceased was that claimed by the prosecution then the assailants whether they were belonging to the complainant side in that murder case (Ali Jaan murder case) or had come at their instance, they would not spare the present informant either. So in the ordinary course, if the motive for committing the murder of the two present deceased was that claimed by the prosecution then the assailants whether they were belonging to the complainant side in that murder case (Ali Jaan murder case) or had come at their instance, they would not spare the present informant either. It is true that in every occurrence, the culprits do not al ways succeed in carrying out their design in its entirety but in the present case, the position is quite clear that if this informant was accompanying the two present deceased in the tempo as claimed by him, he had no means to escape from the tempo and must have been done to death inside the tempo itself. He claimed in his tes timony that Mohd. Rais Khan (present deceased) was sitting by the side of the driver and he and Mohd. Jaan Khan (present deceased) were sitting on. the back seat. He has testified that the as sailants who were in the sugarcane field adjoining the road surrounded the tempo and exhorted, "maaro SALEYKO" and started making fire and then two of the assailants inflicted injuries on the body of the deceased by Fatal. In his cross- ex amination, he stated that all the 4 as sailants stood surrounding the tempo from all sides, that one gunner stood in-front of the tempo and another gunner stood behind the tempo and the assailants carrying Fatal stood on both the sides of the tempo. That being so, it was next to impossible for the informant or for any other person to have succeeded in coming out from the tempo when the deceased who was-sitting by the side of the driver and the other deceased who was sitting in the back portion of the tempo could not come out from the tempo and met their end inside the tempo itself. 16. Another point brought to our notice is that if it be taken that in spite of all the odds, the informant succeeded in com ing out of the tempo he must have been assaulted by the assailants and it was im possible for him to escape injuries al together. 16. Another point brought to our notice is that if it be taken that in spite of all the odds, the informant succeeded in com ing out of the tempo he must have been assaulted by the assailants and it was im possible for him to escape injuries al together. Then whether or not he received injuries in or on coming out from the tempo, he would run away from the spot as fast as he could, and it cannot be believed for a moment that though he would manage to come out from the tempo, he would go for just 2-3 paces and stand there to see the murder taking place and further that yet he would not be assaulted by any of the assailants and would be allowed to stand there. But this is what the informant claims at the trial. He testified, "main MAUKA PAKAR 2-3 KADAM HAT KAR KHARA HO GAYA. " In his cross- ex amination, he made a similar statement, "main FIRING JAB HUYA TAB BHAGA. MAIN TEMPO SE 2- 3 KADAM PAHAR SIDE KO KHARA HO GAYA. . . . . . . . . . . . . ITNI DER MUUIMAN FIRING KARTEY RAHEY VA TABAL SEY MARTEY RAHEY, MAIN WAHIN KHARA RAHA". It was stated by him in his cross-examination that one of the assailant Ayyub Khan was standing on the northern side of the tempo but he did not make any assault on him. "pahar SIDE KO MULJIM AYYUB KHAN KHARA THA. AYYUB KHAN BANDUK WALEY NEY MERE UPER KOYEE HAMLA NAHIN KJYA. " He was specifically asked as to why he was not assaulted by the accused persons though he also was co-accused with both the present deceased in the Ali Jaan mur der case, but he could not give any explana tion for this omission on the part of the accused- appellants. 17. It may also be added here that Sanjai Bhardwaj S. S. I. PW-3 who prepared the inquest reports in respect of both the deceased on the spot testified in his cross-examination that inside the tempo, there were two seats upon the last wheel and one or two benches in the width. 17. It may also be added here that Sanjai Bhardwaj S. S. I. PW-3 who prepared the inquest reports in respect of both the deceased on the spot testified in his cross-examination that inside the tempo, there were two seats upon the last wheel and one or two benches in the width. He stated that one bench was of the driver, another was behind the driver and there was a third bench also and all the 3 benches were in width and further that there was an exit door by the side of the driver seat in the tempo and that there was no door at all at the back portion of the tempo. Obviously, there will be no occasion for the informant to come out from the back side of the tempo. There could be no question of the informant being able to come out from the back of the tempo. The informant claimed that there was a door in the back portion of the tempo for the entry of passengers. He further stated in his cross-examination, "driver BHI SAHMA HUA BAITHA RAHA. ". That being so, it will be difficult for the informant to come out from the front portion of the tempo either. The fact that both the deceased were done to death inside the tempo itself showed that the present deceased persons did not gave any opportunity of coming out from the tempo and so if the informant was also inside the tempo, he could not have come out and in any case the conduct of himself as claimed by the informant cannot be believed. Con sequently, the inference is plain that the informant was neither coming with the deceased in the tempo in which the deceased persons met their end by the assailants nor was he present any-where near the scene of occurrence when the occurrence took place. 18. Now there remains the testimony of Siraj Khan PW-2. He is not a resident of the immediate vicinity of the spot where the occurrence took place so that his present at the spot may be taken to be natural in the ordinary course as the presence of an inmates of a house is natural at a murder in the night inside the house. He is not a resident of the immediate vicinity of the spot where the occurrence took place so that his present at the spot may be taken to be natural in the ordinary course as the presence of an inmates of a house is natural at a murder in the night inside the house. It may be said that on a road only by standers or passengers of vehicles or the passengers in the tempo in which the double murder took place would be natural witnesses. But then in such a case, it is to be scrutinised with great care whether the presence of such a witness at the spot can be safely believed. Any body could easily claim that he was there in the tempo or standing on the road side waiting for a vehicle. So the claim of such a witness about his presence has to be accepted only after close scrutiny. If the witness Siraj Khan PW-2 were a prefect stranger to the deceased persons and the informant having no axe to grind against the accused-appellants, the court might have readily accepted his testimony about this broad day light occurrence but here the position is different. As noted earlier, Mohd. Jaan present deceased was the father of Mohd. Rais Khan deceased and of Mohd. Akeel Khan informant and it has come in the course of cross-examination of the inform ant that the sisters of the informant were married to Siraj Khan PW-2 and Imran Khan (not examined at the trial); In other words, Siraj Khan PW-2 was the son-in-law of Mohd. Jaan Khan present deceased and brother in law of Mohd. Rais Khan present decesed and the informant. It has come in the testimony of the informant in para 5 of his statement that Siraj Khan PW-2 and Imran Khan witness (not ex amined at the trial) were resident of PS. Kichcha, District Nainital. 19. A related witness is not necessari ly an unreliable witness and it has often been said that a related witness will be interested only in the implication of the real culprits. However, this position will arise only if he was an eye-witness of the occurrence. If he was not an eye-witness of the occurrence, then the position would become different. A related witness is not necessari ly an unreliable witness and it has often been said that a related witness will be interested only in the implication of the real culprits. However, this position will arise only if he was an eye-witness of the occurrence. If he was not an eye-witness of the occurrence, then the position would become different. So about him (PW-2) also, it is to be first determined in the light of the surrounding circumstances whether his presence at the spot is believable. As noted earlier, he is resident of PS. Kichcha, District Nainital and not a resident of vil lage Badanpur Where the informant lived nor he was resident of the vicinity where the tempo was going. The informant did not claim that Siraj Khan or Imran Khan were accompanying him and the present deceased for the pairvi of Ali Jaan murder case against them in the Rampur courts on the date. Siraj Khan PW-2 also did not make any such claim. 20. The informant claimed in his tes timony that when- they (the present deceased persons and he himself) boarded the tempo, Siraj Khan PW-2 and Imran Khan were coming sitting in the tempo from before. Siraj Khan PW-2 testified that he and Imran Khan were coming by. tempo from Tanda to Bilaspur and on com ing to the bridge the informant and both the present deceased boarded the tempo. Siraj Khan PW-2 claimed in his testimony that on the date of occurrence, he was going from village Daran to Bilaspur for making sundry purchases of Mircha, Piyaj, Dhania etc. He admitted that he did not tell I. O. that they were going to Bilaspur for making sundry purchases. The witness stated in cross-examination that both the deceased had by chance boarded the tempo and that there was no prior agree ment with the two deceased that they would join at that time. This shows that he was not going by that tempo to join the two deceased and the informant for doing their pairvi in Ali Jaan murder case. The witness admitted that he did not tell the investigat ing officer that he was going to Bilaspur for making sundry purchases. This shows that he was not going by that tempo to join the two deceased and the informant for doing their pairvi in Ali Jaan murder case. The witness admitted that he did not tell the investigat ing officer that he was going to Bilaspur for making sundry purchases. In the ordinary course, the I. O. was expected to ask him and it was his duty to tell the I. O. as to for what purpose and in what connection, he was going by that tempo as claimed by him. So the explanation given by the witness for his presence in the tempo as claimed by him was coming for the first time in the testimony of this witness at the trial which was almost 5 years after the date of occur rence and consequently it is difficult to place any implicit reliance on this claim of the witness. He is a chance witness and chance witnesses are proverbially false though not necessarily so. One important circumstance which belies the presence of this witness at the scene of the occurrence is that he had not received any injury what soever in the occurrence though he has testified to the entire occurrence from beginning to the end including the running away of the assailants and the scribing to the FIR got done by the informant. It may be that he was not alleged to have any enmity with the assailants but when two persons were done to death inside the tempo as claimed by the prosecution, then if this witness was present inside the very tempo at the time when the murder were being committed, there were every likelihood of his accidently receiving same fire arm or other injury in the course of the occurrence. In his examination-in-chief, he has not stated that he got down from the tempo on seeing the assailants or during the course of the occurrence. In his cross-examination, he stated that Mohd. Jaan deceased was shot at by the assailants by entering inside the tempo and that he, Akeel (informant) and Imran got down from tempo and while Akeel (informant) ran and went to the Police Station, he and Imran both kept standing there at the spot near the tempo. In his cross-examination, he stated that Mohd. Jaan deceased was shot at by the assailants by entering inside the tempo and that he, Akeel (informant) and Imran got down from tempo and while Akeel (informant) ran and went to the Police Station, he and Imran both kept standing there at the spot near the tempo. In other words, this wit ness does not claim to have rum away from the tempo on seeing the assailants assault ing his father-in-law and his wifes brother. He did not say precisely as to at what point of time they got down from the tempo. He, however, claimed that all the three of them (he himself, Imran and Akeel informant) jumped down from the tempo from its back side. He further stated that at that time, the assailants were assaulting both the deceased v/itiipatal. This statement of this witness is to be read in conjunction with the testimony of Sanjay Bhardwaj S. S. I. PW-3 who prepared the inquest reports about the two present deceased that there was no exit in the tempo in its back side. In view of this, testimony of Sanjai Bhardwaj S. S. I. PW-3, the claim of this witness to be present in the tampo at the time of occurrence gets im-probabilised. Here it may be mentioned that the informant Mohd. Akeel Khan PW-1 testified that Siraj Khan PW-2 and Imran got down from the tempo after the assailants had run away after committing the murder of both the deceased. How ever, it is difficult to believe that neither the informant nor this witness would receive any injury in the occurrence if they were inside the tempo along with the present deceased persons. 21. There are various discrepancies in the evidence given by the informant and this witness. The prosecution story as given in the first information report and as given in the testimony of the informant are also discrepant inter se. 22. In the FIR apart from names of the informant, Siraj Khan PW-2 Shafiq Ahmad PW-4 Imran Khan (not examined at the trial) alleged to be going in the tampo, there was also a mention that the occurrence was seen by the tempo driver and by the persons sitting in the tempo. 23. 22. In the FIR apart from names of the informant, Siraj Khan PW-2 Shafiq Ahmad PW-4 Imran Khan (not examined at the trial) alleged to be going in the tampo, there was also a mention that the occurrence was seen by the tempo driver and by the persons sitting in the tempo. 23. The informant stated in the ex amination-in-chief that the occurrence was seen by Siraj Khan PW-2, Imran Khan (not examined), Shafiq Ahmad PW-4 and Prakash driver (not examined) and then he added that out of fear of the accused per sons the other persons sitting in that tempo did not help them. In his cross-ex amination he stated that there was no other passenger in the tempo besides them (i. e. himself, the two present deceased, Siraj (PW-2) and Imran Khan (not ex amined ). When pointed out to his earlier statement that other persons did not help them, he replied that he meant driver, Siraj PW-2, Imran and Shafiq PW-4. In his cross-examination, he stated about the presence of Siraj PW-2, and Imran (not examined) at the time when he and the present deceased boarded the tempo and testified that Shafiq PW-4 boarded the tempo after him from the Bengali Colony. He further stated that apart from these persons, no other passengers had boarded the tampo after it till the place of murder. He was confronted with his statement under Section 161 Cr. PC given to the I. O. that the occurrence was seen by him tempo driver Prakash Singh, the passengers sit ting in the tempo and Siraj PW- 2, Imran Khan and Shafiq Ahmad PW-4. He af firmed that this statement given by him to them I. O. was correct. He was confronted with his earlier statement before the court that nobody had boarded the tampo be sides him, Siraj PW-2 and Imran and Shafiq. He admitted having said so. He explained that from the statement given by him before the I. O. about the persons sit ting in the tampo he meant Siraj PW-2, Imran and Shafiq PW-4. He denied the suggestion that he was concealing the names of other persons sitting in the tempo which he had claimed before the I. O. It is obvious that earlier a wide scope was kept in the FIR and in the statement under Section 161, Cr. He denied the suggestion that he was concealing the names of other persons sitting in the tempo which he had claimed before the I. O. It is obvious that earlier a wide scope was kept in the FIR and in the statement under Section 161, Cr. PC before the inves tigating officer for introducing other as witnesses of the occurrence but later on it was dropped. Siraj PW-2 in his testimony did not mention the presence of any pas sengers in the tempo besides the above named persons. He was confronted with the statement under Section 161, Cr. PC given by him before the I. O. , "dar KE KARAN HAM GAWAHAN WA TEMPO MEN BAITHEY ANYA BY-AKTI MRITKON KI KOYEE MADAD NAHIN KAR SAKE. " He admitted having given this statement to the I. O. and did not say that it was a wrong statement. This also meant that at the stage of inves tigation scope was kept open for introduc ing other eye-witnesses in this case. 24. As noted earlier Siraj, PW-2, claimed that they had jumped from the tampo when the assailants were assaulting that deceased persons with Fatal. This when read with his earlier statement, "ham DONO TEMPO SE EK GAJ DOOR KHARE HO GAYE THE. " show-that his statement was that during the course of occurrence he and Imran had got down from the tempo but did not run away out of fear and kept standing there. It is true that they were not having enmity with the accused persons but he has named all the 4 accused-appellants in his testimony which amounted to saying that he knew the accused- appellants from before and if they knew the accused appel lants from before , one could expect that the accused-appellants too would be knowing that he was son-in-law of Mohd. Jaan Khan deceased and so if the accused-appellants were the assailants they could not leave untouched this witness standing there in the vicinity and watching the oc currence. He states that he did not say anything to the assailants but only saved his own life. But every body who wants to save his life from the armed assailants would never keep on standing near the tempo while this is what has been claimed by this witness. It is difficult to believe what Siraj Khan PW-2 has claimed in his testimony. 25. But every body who wants to save his life from the armed assailants would never keep on standing near the tempo while this is what has been claimed by this witness. It is difficult to believe what Siraj Khan PW-2 has claimed in his testimony. 25. Here it may be mentioned that Siraj Khan PW-2 stated in his cross-ex amination that he knew the accused per sons from before but when he pointed to Shahin Khan accused-appellant he gave the name of this accused-appellant as Shamim which indicated that he did not know this accused atleast by name from before. He has not been asked about the other accused-appellants. Whether he knew the accused- appellants from before or not, it is so very obvious from the above discussion that he was not present in the tampo or even in its vicinity at the time of occurrence. 26. It is not disputed that the tempo in question was being driven by Prakash driver at the time of occurrence but the prosecution has not examined Prakash driver at the trial nor has the learned Ses sions Judges has taken the trouble of calling him to the witness box as a court wit ness under Section 311, Cr. PC. The failure of the prosecution to examine the driver is itself a circumstances which casts a shadow of doubt on the ocular testimony given by two witnesses. If there were un concerned passengers inside the tempo they would have been asked or allowed by the assailants to escape from the tempo before they i. e. the assailants committed the double murder or there were no such passengers in the tempo. The driver could thrown light about the manner in which the occurrence took place and also indi cate whether the informant or Siraj Khan PW-2 was present at the spot or not. Here it may mentioned that according to Mohd. Akeel Khan, informant the driver did not try to drive the tempo and that the driver kept or sitting in the tempo being terrified. On the contrary Siraj PW-2 claimed that when Rais deceased received fire arm in jury, Shafeeque PW-4 and driver Prakash Singh got down from the tempo and ran. 27. So far as the 3rd witness of the occurrence Shafeeque Ahmad PW-4 is concerned, he turned hostile and his evidence has no utility to the prosecution. 28. On the contrary Siraj PW-2 claimed that when Rais deceased received fire arm in jury, Shafeeque PW-4 and driver Prakash Singh got down from the tempo and ran. 27. So far as the 3rd witness of the occurrence Shafeeque Ahmad PW-4 is concerned, he turned hostile and his evidence has no utility to the prosecution. 28. The claim of the informant is that he got the FIR scribedat the spot itself but the FIR itself stated "maukey PER LASON AUR TEMPO KO CHHOR KAR AAYA HUN. " He was also con fronted with it. He first stated that he did not get this sentence scribed in FIR. Then he admitted on oath having got it scribed in the FIR. He, however, kept on denying the scribing of the FIR at the Police Station and also denied that it was scribed at noon at the Police Station in consultation with the I. O. Jamil Ahmad PW-5 who was scribe of the FIR stated that he has scribed the FIR at the Police Station Bilaspur at 12 noon at the dictation of the S. O. He has been declared hostile by the prosecution and cross- examined but nothing material has come out therein. The testimony of the scribe is corroborated by the aforesaid contents of the FIR. 29. From the side of the prosecution evidence has come that at the time of preparation of Panchayatnama at the scene of occurrence S. S. I. Sanjai Bharad-waj PW-3 found a purse alongwith cash which contained a photograph of Ahmad Jaan accused- appellant. No effort has been made from the side of the prosecu tion to get the photograph and the purse identified. On the finding of these articles Sunil I. O. PW-6 has also given his evidence. In his cross-examination the defence suggestion given is that when the police had gone in search of Ahmad Jaan accused- appellant, the police has brought his photograph from his house and planted it in this case. This assertion has been made by this accused- appellant in his statement under Section 313, Cr. PC also. The explanation given by this accused- ap pellant is quite plausible and cannot be discarded in the background of the totality of the circumstances of this case. 30. The sum total of the above discus sion is that the presence of the informant Mohd. PC also. The explanation given by this accused- ap pellant is quite plausible and cannot be discarded in the background of the totality of the circumstances of this case. 30. The sum total of the above discus sion is that the presence of the informant Mohd. Aquil Khan PW-1 and Sanjay PW-2 who have given ocular evidence, inside the tempo or even near it at the time of occur rence, is extremely doubtful and their tes timony is wholly unworthy of credence and further that there is also no cir cumstantial evidence on record that may bring home guilt to the accused-appel lants or any one of them at the trial. It is unfortunate that a broad day light double murder goes unavenged. It may even be that all or any of the accused-appellants were themselves the assailants, but the distance between "may be" and "must be" has not been bridged by the prosecution in this case by any reliable evidence direct or circumstantial and so the benefit of doubt has to go to all the accused-appellants. 31. Consequently, the appeal is al lowed. The conviction and sentence qf the accused-appellants awarded by the learned Sessions Judge is set aside and all of them are given the benefit of doubt and acquitted of the offence under Sections 302/34, IPC. They are on bail form this court. They need not surrender to it. Their bail bonds are cancelled and sureties dis charged. 32. Let a copy of this judgment be sent to the Sessions Judge, Rampur for information and compliance. The com pliance report shall be submitted to this court within a month from today. Appeal allowed.