D. K. TRIVEDI, J. The present criminal appeal is directed against the judgment and order, dated 22-12-1979 passed by 1st Addl. Sessions Judge, Har doi convicting the appellants under Sec tion 302, IPC read with Section 34, IPC and sentencing each of them to Imprisonment for Life in connection with an inci dent which was alleged to have taken place on 15-9 1978 at about 5,45 p. m. in Mohalla Balai Kot within the police circle Shahabad District Hardoi. 2. Initially, four accused persons were prosecuted in this case, but out of them accused Muazffar and Thullu were ac quitted by the learned Sessions Judge of the charges levelled against them. It is said that the accused-appellants used to live in Shahabad town and itself and are real brothers. Deceased Ahmad Ullah had mortgaged some land to Ashiq Ali, the father of the appellants for Rs. 5,000/- and it was one of the conditions of the. said agreement that after three years Ahmad Ullah will again take back the land after paying aforesaid amount. It is said that Ahmad Ullah asked Ashiq Ali after three years to re-sell the land in dispute but Ashiq Ali did not accept the request of deceased Ahmad UHah. It is further al leged that after some time a dacoity took place in the house of Ashiq Ali and in the said dacoity Ashiq Ali was killed, A report was lodged against this Ahmad Ullan but Ahmad Ullah fled away to Nepal. After some time, he returned to his village and thereafter, he surrendered himself before the concerned court in the said dacoity case. Just before 12-13 days before this, Ahmad Ullah was released on bail after coming out from jail, he again made a request from Liyaqat Ali, another son of Ashiq Ali to execute the sale- deed of the land for which Ashiq Ali had executed the agreement deed. Liyaqat Ali told him that the matter would be settled on friday after friday prayers. It is said that on the date of the incident deceased Ahmad Ullah alongwith Yunus, Tasawwar, Nabi Ahmad and Shazad Khan went to the house of one Afaq but Latafat took them to his own house. All these persons sat out-side the house on the cots and some mohalla people also joined them. It is said that on the date of the incident deceased Ahmad Ullah alongwith Yunus, Tasawwar, Nabi Ahmad and Shazad Khan went to the house of one Afaq but Latafat took them to his own house. All these persons sat out-side the house on the cots and some mohalla people also joined them. It is said that accused Latafat and Sharafat told them that their brother Liyaqat had gone to Hardoi for attending some case and he would be returning shortly after taking a date in the case. It is said that these persons waited Liyaqat upto 5. 30 p. m. but there after, the mohalla people went away saying that they would return after Liyaqat comes there. It is said that Ahmad Ullah and his companions also wanted to leave that place saving that the panchayat would be held on some other day but accused Latafat and Sharafat dissuaded them and asked them to wait for 5 or 10 minutes more. It is said that thereafter, the accused persons went inside the house and after some time all the accused persons namely: Latafat, Sharafat, Muzaffar and Thullu came out armed with pistols and accused Latafat fired shot from his pistol at Ahmad Ullah. Ahmad Ullah (deceased) fell down on the cot and accused Sharafat then, again fired another shot causing injuries to Ahmad Ullah. It is said that thereafter, all the accused persons ran away. It is alleged that thereafter, Yunus went to PS. Shahabad and lodged a first information report on the same day at about 6. 10 p. m. in the evening. The distance of the Police Station from the place of occurrence is two miles only. According to the FIR incident took place at about 5. 45 p. m. in the eve ning. PW 7 Inspector Mohan Singh was present at the Police Station when the case was registered. He immediately recorded the statements of the complainant as well as Head Constable Ramesh Chandra who registered the case and thereafter, he proceeded to the place of the incident. According to him, he reached the place of the incident at 6. 50 p. m. He prepared the inquest report and another relevant papers Ext. Ka-4 to Ext. Ka-6 and sent the dead-body of deceased Ahmad Ullah through constables Babu Ram and Shyam Manohar to mortuary for post-mortem ex amination. According to him, he reached the place of the incident at 6. 50 p. m. He prepared the inquest report and another relevant papers Ext. Ka-4 to Ext. Ka-6 and sent the dead-body of deceased Ahmad Ullah through constables Babu Ram and Shyam Manohar to mortuary for post-mortem ex amination. He also recorded the state ments of some other witnesses and there after, prepared, a site plan Ext. Ka 7. he also collected the blood-stained and plain-earth and recovered seven pellets from the place of the incident. The accused persons were not available at their house but there after, all the four accused persons sur rendered themselves in the court on 20-9-1978. After completing the investigation, the Investigating Officer submitted the charge- sheet against the accused persons. PW 8 Dr. V. K. Srivastava conducted autopsy on the dead-body of deceased Ahmad Ullah on 16- 9-1978 at 2 p. m. The doctor found the following ante-mortem injuries on his person: (1) Fire-arm wound of entry 2 cm x 2 cm x chest cavity deep with inverted margins on the back left side, 14 cm below inferior angle of left scapula. Blackening present in and around the wound. On dessection, 8th and 9th ribs on left side back were found fractured underneath the injury. On further dissection left pleura, left lung, left kidney and liver were found lacerated in the course of the injury. 7th and 8th ribs on right side front were found fractured left pleural cavity contained 6 ounces of fluid blood. Seven big shots were recovered embeded in the muscles of chest and abdominal wali on front on right side in an area of 7 cms. x 6 cms. One place of wadding material was found embeded in the left lung tissue. Abdominal cavity contained 20 ounces of fluid blood. (2) Fire-arm wounds of entry 7 in number in an area of 6 cms. x 5 cms. on the postero-lateral aspect of left thigh, 8 cms. below left gluteal fold. The margins were inverted each measuring 0. 75 cm. xo. 75 cm. (3) Fire-arm wound of exit with inverted margins, five in number in an area of 6 cms. x 6 cms. on medial aspect of left thigh, middle measuring 1 cm. x O. 75 cm. Note.-The wound communicate with the 5 wound of injury No. 2. Two big shots were recovered embeded in the muscles of left thigh. xo. 75 cm. (3) Fire-arm wound of exit with inverted margins, five in number in an area of 6 cms. x 6 cms. on medial aspect of left thigh, middle measuring 1 cm. x O. 75 cm. Note.-The wound communicate with the 5 wound of injury No. 2. Two big shots were recovered embeded in the muscles of left thigh. (4) Abrasion in an area of 4 cms. x 3 cms. on antero medial aspect of right thigh, 11 cms. above right knee joint. (5) Lacerated wound 3 cms. x 1 cm. x skin deep on the back of left leg middle. 3. On internal examination, the doc tor found that the left pleura, left lung, left kidney and liver of the deceased were lacerated. The stomach. of the deceased contained 10 ounces of paste like material. The gall bladder of the deceased was found full while the bladder was found empty. According to the doctor, the death of deceased Ahmad Ullah was caused due to shock and haemorrhage, as a result of ante- mortem injuries. 4. The post-mortem report is Ext. Ka 10. 5. Prosecution in support of its case examined eight witnesses, out of them PW 1 Yunus, complainant, P W 2 Shahzad and P W 4 Tasawwar Khan are the witnesses of facts. PW 3 Iqrar Khan is a witness of Panchayat and PW 5 Sayed Sartaj is a wit ness of the fact that on the date of the incident they were sitting on the cots and were waiting for Liyaqat at the house of the accused alongwith the deceased. PW 6 Head Constable Ramesh Chandra, registered the case and prepared the G. D. entries, PW 7 S. I. Mohan Singh conducted the investigation in this case and sub mitted a charge-sheet against the accused persons. PW 8 Dr. V. K. Srivastava con ducted autopsy on the dead-body of deceased Ahmad Ullah and submitted post-mortem report Ext. Ka 10. 6. On the other hand, the accused persons denied the prosecution case and stated that they have been falsely impli cated in this case due to enmity. 7. Shyama Charan was also examined in this case as C. W. 1 in order to know the dale of birth of accused Muzaffar. Ka 10. 6. On the other hand, the accused persons denied the prosecution case and stated that they have been falsely impli cated in this case due to enmity. 7. Shyama Charan was also examined in this case as C. W. 1 in order to know the dale of birth of accused Muzaffar. The learned Sessions Judge after considering the evidence on the record came to the conclusion that the prosecution has suc cessfully proved the guilt of two of the accused persons, namely, Latafat and Sharafat beyond reasonable doubt but failed to prove the guilt of the other ac cused appellants, namely, Muzaffar and Thullu who were acquitted of the charges levelled against them. The learned Ses sions Judge convicted and sentenced aforesaid two accused appellants, namely, Latafat and Sharafat as mentioned above. 8. The accused appellants aggrieved by the aforesaid judgment and order, have preferred the instant criminal appeal in this Court. 9. We have heard the learned Counsel for the parties and have also gone through the records carefully. 10. The main contention of the appel lants Counsel, in this case, is that the wit nesses examined in this case are partisan witnesses and no independent witnesses even though available on the spot have been examined. He further pointed out that the FIR is not genuine document and, therefore, the prosecution case is not reli able and therefore, the learned Court below has committed an illegality in con victing the appellants as mentioned above. 11. On the other hand, the learned Government Advocate contended that the evidence of the eye- witnesses is consistent and, therefore, even though there are some laches in the evidence but the same cannot be overlooked and tfce testimony of the eye- witnesses itself proves the guilt of the accused appellant beyond reasonable doubt. 12. In the instant case, it is the case of the prosecution that the incident took place infront of the house of accused Latafat and it is alleged that all these per sons were sitting on the cots. It is admitted fact that there are so many other houses near the house of accused Latafat. It is alleged that the incident took place at about 5. 45 p. m. and a report was lodged at 6. 10 p. m. and the distance of the Police Station from the place of the incident is only 2 kms. It is admitted fact that there are so many other houses near the house of accused Latafat. It is alleged that the incident took place at about 5. 45 p. m. and a report was lodged at 6. 10 p. m. and the distance of the Police Station from the place of the incident is only 2 kms. The Investigating Officer somehow, stated that he reached the place of the incident at 6. 50 p. m. According to him the report was lodged at 6. 10 p. m. and after registration of the case the investiga tion of this case was entrusted to him. He recorded the statements of the com plainant as well as Head Constable and thereafter, he proceeded to the place of the incident reaching there at 6. 50 p. m. He collected the punches and started to prepare the inquest report of the deceased. The inquest report is Ext. Ka-4 which shows that the preparation of the same was started at 6. 50 p. m. In these circumstances, it is not possible to believe that the FIR was lodged at 6. 10 p. m. as alleged by the prosecution because after 6. 10 p. m. , the complainant dictated the report to the Head Constable who after writing down the said report, registered the case and then the investigation of this case was handed over to PW 7 S. I. Mohan Singh who thereafter, recorded the statements of the complainant Yunus as well as Head Constable. The report Ext. Ka. 1 itself shows that the same is detailed one and it must have taken 15-20 minutes and there after, its copies were prepared also. The Investigating Officer, thereafter, recorded the statements of the witnesses as well as Head Constable which must have taken 1-1/2 hours and taking into consideration all these facts, it is not possible to believe that the Investigating Officer, thereafter proceeded to the place of the incident reaching there at 6. 50 p. m. The contention of the defence Counsel further is that even the dead-body was handed over to the con stable Babu Ram on the same day at about 8 p. m. in the night but the dead-body reached mortuary on 16-9-1978 which was received by the doctor at 1. 50 p. m. The contention of the defence Counsel further is that even the dead-body was handed over to the con stable Babu Ram on the same day at about 8 p. m. in the night but the dead-body reached mortuary on 16-9-1978 which was received by the doctor at 1. 45 p. m. but the papers were received at about 12 noon and this delay of reaching the dead-body also throws doubt about the genuineness of the prosecution case. 13. Apart from this, it is admitted by PW 7 S. I. Mohan Singh that the Head Constable as well as three other con stables had already reached the place of the incident and he met them at the place of the incident. It is also stated by PW 6 Ramesh Chandra, Head Moharrir that daroga Ji meaning thereby, P W 7 Mohan Singh, left the Police Station for the place of the incident at 6. 10 p. m. As pointed out above, 6. ID p. m. is the time of lodging of the FIR and thereafter, the report was registered and was dictated to the Head Constable and further thereafter, the In spector recorded the statements of the complainant as well as Head Constable and then, he (Mohan Singh) left the Police Station for the place of the incident. In these circumstances, it is impossible to believe that the Investigating Officer shall leave the Police Station at 6. 10 p. m. as entered in the general diary. Similarly, it is also impossible to believe that the Inves tigating Officer after lodging of the FIR recorded the statements of the com plainant as well as Head Constable and thereafter, reached the place of the inci dent at 6. 50 p. m. It is also not disputed that the dead-body was sent from the place of the incident to mortuary at about 8 p. m. In these circumstances, it is not possible to believe that the FIR was lodged at 6. 10 p. m. as alleged by the prosecution. 14. We find force in the contention of the defence Counsel that the information of the murder was sent to the Police Sta tion and after arrival of the police a case was concocted and the appellants were implicated in this case due to enmity and suspicion. The conduct of the com plainant, Yunus is also not above board. 14. We find force in the contention of the defence Counsel that the information of the murder was sent to the Police Sta tion and after arrival of the police a case was concocted and the appellants were implicated in this case due to enmity and suspicion. The conduct of the com plainant, Yunus is also not above board. In the FIR he stated that he is resident of village Harai, P. S. Shahabad, District Hardoi. Before the Investigating Officer, also he stated that he is resident of village Harai but before the Sessions Court, he disclosed his place of residence as Mohalla Gunja, P. S. Shahabad, Distt. Hardoi. He was cross- examined that he admitted that ini tially he is resident of village Harai but for the last 17-18 years he is residing in village Maulaganj. He tried to explain his conduct by saying that he had disclosed all these facts to the munshi Ji as well as daroga Ji but it appears that the said facts were not mentioned. It is not possible to believe that if he had mentioned the place of residence as Maula Ganj then, why the same was written by the Head Constable as well as Investigating Officer as village Harai. Similarly, he further stated that Ahmad Ullah after returning from Nepal started living in his house but in cross- ex amination he admits that he (Ahmad Ullah) used to live in the house of Fida Hussain which is situated at a distance of 1 -1. 25 miles from the house of the accused. Deceased Ahmad Ullah was admittedly his bhanja and the other witnesses namely, PW 2 Shahzad as well as PW 4 Tasawwar Khan are also partisan witnesses. PW 1 Yunus admits that PW 2 Shahzad is the father-in-law of Sharif who is the real brother of Shahzad. PW 2 Shahzad is resi dent of village Harai. The testimony of PW 1 Yunus further finds support from the medical evidence about manner of the as sault. It is the case of the prosecution that the accused persons came out from the house and fired at Ahmad Ullah from a close range. PW 1 Yunus admits that the gun was fired at the space of one step and the distance between the barrel and the deceased was only nine inches. It is the case of the prosecution that the accused persons came out from the house and fired at Ahmad Ullah from a close range. PW 1 Yunus admits that the gun was fired at the space of one step and the distance between the barrel and the deceased was only nine inches. He further admits that the second fire was also made, in spite of the fact as mentioned above that the doctor who conducted the autopsy on the dead-body of the deceased found blackening against injury No. 1 only. Out of three injuries, two injuries were shown as entry wounds and third injury was shown to be exit wound. Apart from this, the deceased also received one lacerated wound on his led and an abrasion in an area of 4 cm x 3 cm but there is no explanation about these injuries. Whereas, it is -ad mitted fact that no one had assaulted Ahmad Ullah by lathi or Danda. Apart from the above-mentioned infirmities, it is also proved that the FIR alleged to be lodged by him is not a genuine piece of document and in these circumstances, the testimony of this witness is not reliable. PW 2 Shahzad is admittedly, the relation of PW 1 Yunus and admittedly he resides in village Harai. He also admits that he returned back to village Harai on the same day. He also admits that his daughter is married to Sharif, the real brother of com plainant Yunus. This witness also impli cated Muzaffar as well as Thullu but they have already been acquitted. He also stated the same thing about the manner of the assault as alleged by the PW 1 Yunus. As pointed out above, he is resident of village Harai and there is nothing to show that the sitting of a panchayat was pre planned, therefore, his presence on the spot is not probable. PW 4tasawwar Khan is another eye-witness. He has also deposed he same statement about the ac cused persons also well as manner assault. He is also resident of village Garni Kala, and he was called next day by the Inves tigating Officer for interrogation. PW 4tasawwar Khan is another eye-witness. He has also deposed he same statement about the ac cused persons also well as manner assault. He is also resident of village Garni Kala, and he was called next day by the Inves tigating Officer for interrogation. Here, it may be pointed out that the house of ac cused Latafat was surrounded by so many persons and the incident took place just infront of the house of the accused but even not a single person of the nearby locality has been examined to prove the prosecution case. As pointed out above, the most serious infirmity is that the FIR itself is found to be not genuine one. The circumstances pointed out above clearly show serious doubts on the prosecution case as disclosed in the FIR. The prosecu tion case that the FIR was lodged at 6. 10 p. m. by Yunus, on the face of it, not correct and the same appears to be lodged later on and the papers were prepared simul taneously one after other. The time men tioned on the said papers itself shows that the same could not be prepared as alleged by the prosecution. The fact that the FIR is the basis of the prosecution case and if, the same is held to be brought into existence long after the occurrence and with con-sulations then, the whole prosecution case collapsed and the same cannot be held to be genuine on the basis of the testimony of the partisan witnesses whose statements weic also found full of infirmities. The papers prepared by the police also throw doubt about the genuineness of the prosecution case. In any case, a doubt also arose about the sitting of the panchayat as alleged by the prosecution. According to the prosecution case, they were collected and were got seated on the cots infront of the house of the accused persons. Out of these persons, most of the persons had already left the place because Liyaqat had gone to Hardoi and had not returned back. There is no sense as to why the deceased and other persons were remained sitting and waiting for Liyaqat who had gone to Hardoi and there is nothing on the record to show that he will return back soon from Hardoi. There is no sense as to why the deceased and other persons were remained sitting and waiting for Liyaqat who had gone to Hardoi and there is nothing on the record to show that he will return back soon from Hardoi. Liyaqat had already left the village and had gone to Hardoi and in these cir cumstances, there is no question of calling the deceased etc. if, the presence of Liyaqal was necessary. 15. In view of the facts stated above and the fact the above- mentioned eye-wit nesses have also initially tried to implicate innocent persons, in our opinion, atleast it can be said that the prosecution had failed to prove the guilt of the accused appel lants beyond reasonable doubt and, there fore, the aforesaid appellants are also en titled to get benefit of doubt. 16. Accordingly, the aforesaid criminal appeal is, hereby, allowed. The conviction and sentence as awarded by the learned Sessions Judge against the aforesaid appellants, namely, Latafat and Sharafat are hereby, set aside. The appel lants are on bail. They need not surrender. Their bail bonds are cancelled and sureties stand hereby discharged. Appeal allowed. .