M. C. JAIN, J. ( 1 ) THE appellant Bresham Singh has preferred this appeal against the judgement and order dated 4-10-1980 passed by Sri Gaya Prasad, the VI Additional Sessions Judge. Mainpuri in Sessions Trial No. 236 of 1979 whereby he has been convicted under Sec. 302 I. P. C. and sentenced to life imprisonment. ( 2 ) THE facts lie within a short compass. The deceased was one Ajab Singh and the incident took place in between the night of 7/ 8/11/1977 at about 12 O clock. The report was made at Police Station Shikohabad by the deceaseds brother Kitab Singh, P. W. I. on 8-11-1977 at 9. 10 A. M. The appellant allegedly had illicit relations with the wife of one Alam who was the neighbour of the deceased Ajab Singh. Ajab Singh had taken objection to it and had asked the appellant to desist from his immoral activity, as it was likely to produce bad effect on the women folk of his family. The appellant had started harbouring grudge against the deceased on this score. In the fateful night, he was sleeping at his field. His brother Kitab Singh, P. W. I. and his own son Virendra Singh were also sleeping on another cot. At about midnight the appellant appeared there with another unknown person and after accosting the deceased fired on him from the gun that he had. The informant Kitab Singh, P. W. I. raised shout which attracted Nathu Ram, Mahendra Singh Pancham Singh and Gajendra Pati. Mahendra Singh and Gajendra Pati had torches. The victim died then and there. The appellant ran away with his companion. On lodging of the First Information Report, a case was registered and the investigation taken up as usual by S. I. Sobaram Singh, P. W. 4. Post-mortem over the dead body of the deceased was conducted by Dr. V. K. Misra, P. W. 5 on 9-11-1977 at 4 P. M. the deceased was aged about 40 years and about 1-1/2 day had passed since he had died. The following ante-morten injuries were found on his person. 1. Firearm wound of entrance 3 cm x 2. 5 cm x chest deep in the chest front upper side 9 cm from right nipple at 8 0 Clock position. Oval, margins inverted and blackening, tattooing and scorching seen around the wound. 2. Firearm wound of exit 4cm x 3. The following ante-morten injuries were found on his person. 1. Firearm wound of entrance 3 cm x 2. 5 cm x chest deep in the chest front upper side 9 cm from right nipple at 8 0 Clock position. Oval, margins inverted and blackening, tattooing and scorching seen around the wound. 2. Firearm wound of exit 4cm x 3. 5 cm x chest deep on left side of chest 5 o clock position from left nipple at a distance of 16 cm. from it. Oval margins averted No blackening, tattooing or scorching, corresponding to injury No. 1. ( 3 ) FIRE arm wound entrance 2. 2 cm x 2. 5 cm x back deep on right forearm back aspect. Above wrist, margins inverted and blackening, tattooing and scorching found around the wound. ( 4 ) FIREARM wound of exit 3. 3 cm x 3 cm x bone deep on the front aspect of right fire arm just above wrist. Oval, margin everted. No blackening, tattooing or scorching seen. Corresponding to injury No. 3. The victim had died due to shock and haemorrhage owing to ante-mortem injuries. 3. The chargesheet having been laid against the appellant on conclusion of investigation, the Court below tried him. The defence was of denial. According to him, he had been implicated falsely owing to party factions. The prosecution examined five witnesses in support of its case besides relying on documentary evidence. One witness was examined by the appellant also in his defence. Out of the witnesses examined by the prosecution Kitab Singh P. W. 1 and Virendra Singh P. W. 2 were the eye witness of fact. The trial Court believed the prosecution evidence and passed the judgement and order under appeal. 4. We have heard Sri D. P. Singh assisted by Sri K. S. Chauhan for the appellant and the learned A. G. A. on behalf of the State of U. P. We have also gone through the record of the including the evidence. On a thoughtful consideration of evidence on record in the case light of the arguments advanced at the bar, we find that there are intrinsic weaknesses in the prosecution case and evidence which strike at its bottom. As a result, the impugned judgement of conviction cannot at all be sustained. It would be worthwhile to deal with the apparent black spots in the prosecution case in the succeeding discussion. As a result, the impugned judgement of conviction cannot at all be sustained. It would be worthwhile to deal with the apparent black spots in the prosecution case in the succeeding discussion. ( 5 ) IN the first instance, it is to be pointed out that the First Information Report is a delayed one where or there is no explanation. The own statement of Kitab Singh. P. W. 1 in his cross-examination is that after the incident the entire village had collected at the spot, but he did not disclose to anyone about the culprits. It sounds to be improbable that he would not have disclosed the names of the accused to the persons who had collected there and would maintain stony silence on this crucial aspect of the matter despite the fact that the appellant was known to him and belonged to his own village. Not only this it also appears that there had been consultation before lodging of the First Information Report. He himself stated that after reaching the Police Station, he had first narrated the incident to the Daroga who had dictated the First Information Report which had been written down by Gajendra Pati who had accompanied him to the Police Station. The facts relating to the manner and late lodging of the First Information Report give a serious blow to the prosecution case. ( 6 ) SECONDLY, the motive assigned to the appellant for commission of this crime is very weak and tenuous. It rubs against ordinary human conduct that the appellant, who was himself allegedly at fault by carrying on illicit relations with the wife of the deceaseds neighbour (Alams wife), would have taken a crotchet into his head to murder the victim simply because he had asked him to desist from such immoral activity. There is also no evidence on this aspect of the matter as to when the deceased had last asked the appellant to serve his illicit liaison with the wife of Alam. In the absence of any such evidence, it cannot be gathered that there was some immediate cause for the blood running high in the head of the appellant to murder the victim. ( 7 ) THIRDLY, Kitab Singh, P. W. 1 himself stated in his cross-examination that the culprits had muffled up their faces. It indicates that they had taken precaution to conceal their identity. ( 7 ) THIRDLY, Kitab Singh, P. W. 1 himself stated in his cross-examination that the culprits had muffled up their faces. It indicates that they had taken precaution to conceal their identity. It cannot be comprehended as to how could the appellant be recognised when he had muffled up his face to conceal his identity. ( 8 ) FOURTHLY, the source of light at the spot is also doubtful. It is alleged that the witnesses Mahendra Singh and Gajendra Pati who had appeared at the scene of occurrence on hearing the shouts of Kitab Singh, P. W. 1 had torches which facilitated the recognition of the present appellant. The truth of the matter is that one of these witnesses showed his torch to the Investigating Officer. There is no Phard in this regard. None of these witnesses, namely. Mahendra Singh or Gajendra Pati has been examined. Virendra Singh, P. W. 2 stated that Mahendra Singh died. His version contradicts with that of Kitab Singh P. W. 1 that only Mahendra Singh had a torch. Kitab Singh, P. W. 1 stated that fire had already been shot before the witnesses arrived. If it were so, the culprits would not have tarried at the spot even for a fraction of a second after firing. Their foremost attempt would have been to get away before the arrival of witnesses so that there could be no evidence against them. ( 9 ) TO cap all what has been stated above exposing inherent weaknesses of the prosecution case, the ocular testimony is in direct conflict with the medical evidence. The ocular version is of single shot whereas the deceased received two gunshot wounds of entry (antemortem injuries Nos. 1 and 3), one on the chest and the other on the back of right forearm. The conspicuous conflict between the medical and ocular version leads to irresistible conclusion that nobody saw the incident and Kitab Singh, P. W. 1 and Virendra, P. W. 2 have only spoken on the basis of their imagination. Both of them are close relative of the deceased and are, therefore, not independent also. The conspicuous conflict between the medical and ocular version leads to irresistible conclusion that nobody saw the incident and Kitab Singh, P. W. 1 and Virendra, P. W. 2 have only spoken on the basis of their imagination. Both of them are close relative of the deceased and are, therefore, not independent also. Virendra, P. W. 2 was only aged about 13 years at the time of the incident and could easily be readied to dance to the tune of the prosecution to support the version of his uncle Kitab Singh, P. W. 1, but the apparatus of cross-examination has completely exposed the hollowness of the testimonial assertions of both of them that they did not actually see the assailants and have spoken against the present appellant on the basis of suspicion and on the strength of earlier background between him and the deceased regarding the formers alleged illicit relations with the wife of Alam to which the later had objected. True, the deceased Ajab Singh was the victim of violence and died of gunshot injuries, but in the absence of clinching and satisfactory evidence, the conviction of the appellant cannot be sustained merely on suspicion. ( 10 ) IN view of the above discussion, we allow this appeal by setting aside the conviction and sentence of the appellant Bresham Singh recorded by learned Additional Sessions Judge through the judgement under appeal. He is acquitted. He is on bail. He need not surrender. His personal bond and bail bonds are cancelled and sureties discharged. Appeal allowed. .