JUDGMENT : - S.K. Agarwal, J. 1. NINE appellants who have been convicted and sentenced to life imprisonment under Section 302/149, I.P.C. and six years, R.I. under Section 307/149, I.P.C. The first eight appellants have further been sentenced to two years' R.I. under Section 148, I.P.C. while appellant Ram Chand has been sentenced one years' R.I. by the then IIIrd Additional Sessions Judge, Aligarh by his order dated 14.10.1980. 2. AT the very outset, it may be mentioned that out of the aforesaid nine appellants, Appellant No. 2 Bhup Singh, Appellant No. 4 Prem Pal and Appellant No. 5 Mahendra Singh have died during pendency of this appeal, hence their appeals stand abated. According to the F.I.R. at 4.00 a.m. in the morning, the villagers of Battisa were engaged in laying soil on the road from Komari Canal to their village. It is alleged that as soon as laying of soil started on the road from the side of canal, ten persons arrived at the canal. At a distance of 50-60 yards the brother of the informant was present along with Hardaksh Singh, Jaipal Singh, Rajpal Singh, Rajveer Singh, Kunwar Pal Singh. The laying of soil was initiated at the first instance by one Ghamandi and thereafter by the aforesaid persons. The rest of the villagers were continuing with laying the soil on the pathway towards the village. This pathway was going from canal up to the village. In the meantime, miscreants who had come to the canal moved ahead to the field of Malkhan Singh and stationed on the merh (divider), one of them flashed torch. When Ghamandi challenged and called "who is he", one of them belonging to village Battisa gave out "I am Udaiveer Singh" and opened fire from his gun upon him (Ghamandi), brother of the informant. Ghamandi fell down on the ground immediately on receipt of the gunshot and rest of the villagers started running towards the village raising alarm. 3. ACCORDING to the informant, it was moonlit night. The informant was asleep at his house. Hearing the shouts as well as the gunshot report, the informant along with his nephew Bachchu Singh (P.W. 4), Jaipal Singh (P.W. 2) and Kunwar Pal Singh (P.W. 3) started moving towards the place of occurrence. They challenged the miscreants. 3. ACCORDING to the informant, it was moonlit night. The informant was asleep at his house. Hearing the shouts as well as the gunshot report, the informant along with his nephew Bachchu Singh (P.W. 4), Jaipal Singh (P.W. 2) and Kunwar Pal Singh (P.W. 3) started moving towards the place of occurrence. They challenged the miscreants. He stated that along with the villagers, he took shelter in the field of the school and opened fire on miscreants. His gun went out of order after discharging a shot. When he tried to reload his gun, he was fired upon. The fire had caused injuries on his neck, hand, buttock and foot. It indicates that he had also sustained injuries while trying to run away as appears from the injury on his buttock. The assailants thereafter turned towards south stating that Ghamandi was taught a lesson for deposing against Udaiveer Singh and they will see the informant later on. This clearly indicates that they could not identify Ghamandi in the absence of light. 4. THE informant Gajraj Singh claims to have identified Udaiveer Singh S/o Narain Singh Jat, resident of his own village, Bhup Singh R/o village Komari, Radhey R/o village Ninmai, Ramchandra Pradhan R/o Ninmai, Mahesh S/o Ramswaroop R/o Nagla Pitam. Ramji Lal R/o Nagla Battisa, Prem Pal R/o village Komari, Mahendra R/o village Champa, Komari and Munna R/o village Ninmai in the moonlight amongst the assailants. These persons were known to him from before. Om Prakash of village Komari, who was ploughing his field at the moment, had also seen the miscreants passing by and also identified them. According to F.I.R., Udaiveer, Radhey and Bhup Singh were armed with gun. Mahesh, and Babulal were armed with country made pistols. Rest of the assailants were armed with lathi, spear and farsa. It is further stated at the fag end of the F.I.R. that his brother was shot again from a close range by Udaiveer Singh whereafter he fell down on the ground and breathed his last. 5. THE medical examination on the person of Gajraj Singh was conducted by Dr. Y. K. Jain (P.W. 6) on 25.10.1978 at 1.45 p.m. who found the following injuries on the person of Gajraj Singh : "In all the gun shot wounds of entry, blackening was present. THE size of the wound is 1/4 cm. cm. 5. THE medical examination on the person of Gajraj Singh was conducted by Dr. Y. K. Jain (P.W. 6) on 25.10.1978 at 1.45 p.m. who found the following injuries on the person of Gajraj Singh : "In all the gun shot wounds of entry, blackening was present. THE size of the wound is 1/4 cm. cm. THE entry wound shot appears to have been fired from a distance of about four feet because there was dispersal. Injury Nos. 1 and 2 were on jaw and upper arm. Injury No. 3 contains two pellets of the same size in an area 4 cm. 1 cm. on the back right forearm 6 cm. above the wrist joint circular in shape. Injury No. 4 in an area of 17 cm. 10 cm. was on the left buttock. Injury No. 5 again contains two pellet injury in an area 3 cm. 1 cm. on the inner aspect of left foot each in the same dimension below the lateral malleolous margin inverted. Injury No. 6 contains single pellet on the inner aspect of the right leg." 6. THUS, from a perusal of the injury report, it is apparent that he had sustained these injuries from different shots. The injuries could be caused during the period he was retrying to fire but his gun failed to discharge. He had used his gun as cartridges were recovered. He had handed over to the Investigating Officer, his gun (belonging to Ghamandi) and empty cartridges of 12 bore along with four missed cartridges, which did not come out of the gun. As the assertion of the informant P.W. 2 is, that after first fire his gun having failed he wanted to run away. The presence of the informant for prosecution at the spot is of prime importance. It cannot be doubted but still question remains whether the informant was present at the spot at the time of laying of soil or came there subsequently. In the F.I.R., it is stated that soil was laid on the pathway from Komari canal upto the village. Road was being prepared by shramdan (contribution of labour). It was commenced at an odd hour towards the end of October. In the F.I.R., it is stated that soil was laid on the pathway from Komari canal upto the village. Road was being prepared by shramdan (contribution of labour). It was commenced at an odd hour towards the end of October. Sunrise must be at about 6.45 a.m. THUS, at 4.00 a.m. in the morning, there will not be sufficient light for the witnesses to identify the miscreants in the light of the moon at this odd hour from a considerable distance. Admitted distance was 35 yards. Moonlight will be much poorer by this time. The post-mortem examination was conducted by Dr. S. C. Agarwal (P.W. 7) on the person of Ghamandi deceased. There are in all seven injuries of firearm on his person. Out of them injury Nos. 1 to 4 were wounds of entry and rest of the injuries are wounds of exit. The first injury appears in the size of 3 cm. 3 cm. brain cavity deep over right side of the head. Admittedly the victim had sustained this injury from some distance. The first shot was fired from a considerable distance, i.e., 35 steps. There was no blackening, tattooing and charring around the entry wounds or on the inner circle of these wounds. No doubt when the shot was fired from some distance, wounds of entry will not be compact, i.e. small in size. The dispersal is bound to occur. The presence of an injury in an area of 3 cm. 3 cm. over the head, right side shows that it is a mass entry. Brain material was coming out from the wounds but apparently no corresponding wound of exit was found. Injury Nos. 2, 3 and 4 appear to have their corresponding wound of exit. Injury No. 2 communicates with injury No. 7. Injury No. 4 communicates with injury No. 5 and injury No. 3 has its corresponding exit as injury No. 6. Thus, he appears to have been fired four times. There appears to be no independent pellet injury except injury No. 4. Fires have been made from a distance yet a mass entry gives an indication that the dispersal had taken place after its entry into body shooting was resorted from much closer range. We do not find any presence of burnt or unburnt procedure either outside or inside any of these injuries. Fires have been made from a distance yet a mass entry gives an indication that the dispersal had taken place after its entry into body shooting was resorted from much closer range. We do not find any presence of burnt or unburnt procedure either outside or inside any of these injuries. The cause of death noted by the doctor is coma as a result of injuries. It gives an impression that the shot which had been fired from gun on the deceased must have been fired from a distance beyond 2 yards. P.W. 7 has also admitted that the shot must have been fired from a distance of 4-5 feet since there is no blackening, scorching or even tattooing on these injuries. The presence of the semi-digested food in the stomach was also noted by the doctor. The duration of food taken by the deceased as given out by doctor is 3 hours before his murder. Under the fracture of the right parietal bone 135 small metallic shots and three pieces of wadding material were found. The right and left lungs in the chest underneath injury No. 4 were at several places punctured. From his deposition, it has become clear that the assailants whosoever they may be came quite close to the victim, i.e., within the identity range but this is indirect contrast to the ocular version as rendered by the eye-witnesses. 7. SO far as the injuries of Gajraj Singh are concerned, P.W. 6 Dr. Y. K. Jain has given out the range of shooting in his evidence to be within 4 feet. He has admitted that he advised for X-ray of the injuries. But no X-ray examination report was received by him and therefore he did not submit a supplementary report. Thus, there is absolutely no confirmation of the presence of internal damage in his injury. In reply to the querry as to how many shots caused the above said injuries, doctor opined that they were of more than one shot. 8. IT raises two questions whether the incident occurred in the manner as stated by witnesses and if so were these witnesses present specially in the light of the conflict with medical evidence. The informant was not an eye-witness of initial part of the incident and he had not stated that any body had given out initial version to him immediately on his arrival at the spot. The informant was not an eye-witness of initial part of the incident and he had not stated that any body had given out initial version to him immediately on his arrival at the spot. The shooting on Ghamandi was first made from spot 'A' as available from the site plan. The victim was standing. According to the site plan, fires were discharged from a distance of 150 paces. The spent cartridges were recovered from the cross which is adjacent to spot 'A'. The dead body of the deceased was lying on spot 'C' as shown in the site map from a circle with a cross inside. This is a place from where the blood was alleged to have been collected. Laying of mud is shown on the path from near Komari canal towards village by crosses. This is not corroborated by evidence of witnesses. The complainant is shown to have come from the north and shown on spot 'B'. 9. ACCORDING to the F.I.R., the shooting was resorted to by the assailants from the field of Malkhan Singh which is shown in the site plan. In the site plan, the assailants were shown to have moved to spot 'D' and thereafter they are shown to have turned back to south which means they returned back in the same direction from where they came. 10. NOW taking up the statement of the eye-witnesses, we find that the eye-witnesses were in two different sets. Gajraj Singh and Bachchu Singh came from the village after Ghamandi had already been shot dead. They form one set. The other persons Kunwar Pal Singh (P.W. 2) and Jaipal Singh (P.W. 3) are the persons who were in close vicinity of the deceased and were working along with him. The Court has also examined Rajveer Singh, who was also present along with the above said two persons. Thus, the P.W. 2 Kunwar Pal and P.W. 3 Jaipal Singh are the persons who were the witnesses of the entire incident arrival of Gajraj Singh at the spot so was C.W. 1 Rajveer Singh. As has already been stated in the preceding paragraphs that it is a case in which not only the identity of the assailants but also presence of light is disputed by the learned counsel for the defence. In the result, the evidence of these witnesses is to be very closely scrutinised. As has already been stated in the preceding paragraphs that it is a case in which not only the identity of the assailants but also presence of light is disputed by the learned counsel for the defence. In the result, the evidence of these witnesses is to be very closely scrutinised. Whether the witnesses had sufficient opportunity and occasion to identify the assailants and the manner of assault specially, in view of the allegation that Udaiveer, the main assailant, had disclosed his identity before shooting, the deceased, is plausible and acceptable or not. 11. BEFORE examining the testimony of Gajraj Singh (P.W. 1), and Bachchu Singh (P.W. 4), it will be safe to examine the testimony of P.W. 2 Jai Pal Singh and P.W. 3 Kunwar Pal Singh. Jaipal Singh (P.W. 2) has stated the time of occurrence to be 4.00 a.m. in the morning. He has further admitted that he had gone there to lay the mud along with others. According to him the incident occurred just 5-10 minutes after they started lying soil. According to him he had alone laid 4-5 spades of soil on the road. He was doing this on the west of the road. The road runs to north south. He claimed presence of Rajveer, Rajpal Singh, Kunwar Pal, Harbaksh Singh along with Ghamandi Singh at the spot. 10-15 minutes after the start of the process of laying soil 10 persons arrived from the side of the canal including Udaiveer who died during trial. He claimed that he could not identify one person. He did not name Ramchand in his examination-in-chief. He repeated the version contained in the F.I.R. and as stated by Gajraj Singh that on the challenge of Ghamandi, Udaiveer disclosed his name and fired upon the deceased. He categorically stated that 4-5 shots were fired in one burst and as a result of these fires Ghamandi fell down on the ground and thereafter Udaiveer fired thrice on the head. Thus, in all 7-8 shots came to be fired according to him. This is directly against the medical evidence. He further stated that Udaiveer asked him to continue laying of soil but he for fear ran away because he had no animosity with them. He proceeded from the spot for some distance slowly and thereafter ran. In the way, he met Gajraj Singh, Bachchu Singh and Hakim Singh. This is directly against the medical evidence. He further stated that Udaiveer asked him to continue laying of soil but he for fear ran away because he had no animosity with them. He proceeded from the spot for some distance slowly and thereafter ran. In the way, he met Gajraj Singh, Bachchu Singh and Hakim Singh. He told him that your brother was already done to death why is he going there. Gajraj Singh replied that when my brother is killed what will I do by remaining alive and he proceeded towards site of occurrence. He fired a shot on reaching near school. Thereafter he heard a scream. That sound was of Udaiveer. When Gajraj Singh got up, two fires were made on him on the turn and as soon as he tried to run away two more shots were fired upon him. Thereafter both the persons raised alarm. The assailants thereafter disappeared towards canal and the witnesses along with others moved towards north. When the assailants have gone too far away, they came towards Ghamandi. After finding Ghamandi dead they had come back to the village. This part of evidence is in conflict with Gajraj. On the specific question being put by the prosecutor regarding identification of the weapons this witness had disclosed that Udaiveer was armed with DBBL gun, Mahesh was armed with katta, Ramji Lal was holding ballam. Munna was possessing pharsa and the remaining assailants were also armed with guns. He is contradictory to P.W. 1 Gajraj on the point of weapons. According to him, that was a bright night. 12. HE had further stated that laying of mud by villagers was settled in the meeting in the village during night. It was decided that this work would be commenced in the morning. Then he qualified it by saying that it will be done for 2-3 hours in the morning and rest during night. According to him this meeting was held in the room of the deceased. HE is married with the daughter of Name Singh. The other two sisters of his wife were also married, one with the brother of Ghamandi and the other with his own brother Rajpal. Thus, he is a close relation of Gajraj and the deceased. From his statement it appears that the meeting was held amongst only six persons and these six persons alone had come to lay mud. The other two sisters of his wife were also married, one with the brother of Ghamandi and the other with his own brother Rajpal. Thus, he is a close relation of Gajraj and the deceased. From his statement it appears that the meeting was held amongst only six persons and these six persons alone had come to lay mud. HE had admitted that in laying mud on the pathway these six persons alone were not to be benefited but the benefit was to accrue to the whole of the village. HE further admitted that other people were not asked to contribute their labour for laying of mud on the road. HE did not disclose about this decision to contribute their labour for constructing the road to Investigating Officer. HE also did not disclose to the Investigating Officer that any meeting was held for this purpose. According to him, Ghamandi was standing after laying 5-6 spades of mud on the road at the time of occurrence. HE has stated that they did not like Ghamandi doing this work because he was a rich man. In the village new roads used to be constructed by shramdan (free labour) so Ghamandi wanted to start this work by his own hand. According to him the place where they were laying mud near the canal was about 4-5 furlong from the culvert. Admittedly the soil was laid for 10-15 minutes by only six men. It is highly improbable in the circumstances, they had come to the place from the village. This mud was laid upto the culvert. HE denied the suggestion that they were coming from the side of culvert. HE had admitted that he did not disclose to the Investigating Officer that they were laying mud and Ghamandi laid 4-5 spades of mud only and thereafter he was standing. None of the other five persons contributing their labour with Ghamandi had sustained any injuries. HE denied the suggestion that no contribution of labour was made in laying soil on that date. HE has also refuted the story of no contribution of labour as false. HE had admitted that it was moonlit night and moon appeared on the horizon after midnight. It was either 8th-9th day of bright fortnight. HE had admitted that the assailants were identified from a distance of 30-35 paces when they flashed their torches. HE has also refuted the story of no contribution of labour as false. HE had admitted that it was moonlit night and moon appeared on the horizon after midnight. It was either 8th-9th day of bright fortnight. HE had admitted that the assailants were identified from a distance of 30-35 paces when they flashed their torches. It is humanly not possible in our opinion for any one to recognise any person beyond 17 yards in moonlight. HE denied the suggestion that any bushes, trees or any other obstruction was in the way impeding their view. HE had further admitted that the assailants flashed their torches from a distance 30-35 paces and they saw them in that light also. This too is not only impracticable but impossible. HE denied that there were any clouds. On being cross-examined for necessity of flashing of the torches by accused the witness said that the torch was flashed by the miscreants to see that no other persons sustained any gun shot injuries. This explanation is impossible to be accepted. Ghamandi had no place for hiding. HE continued to stand at that very place. HE made no attempt to run away. None of the miscreants enquired about Ghamandi. None of the assailants identified the deceased before resorting to firing. This part of his statement completely demolishes his above explanation. He admitted that the witnesses and the culprits ran towards west of the road. The deceased was towards the east of the road. The width of the road is 5-6 paces. Udaiveer Singh opened fire from the western side. His shot was accompanied by 4-5 more shot from the front direction. Ghamandi fell down at the same spot where he was standing. He stated that he had disclosed to the Investigating Officer that the culprits simultaneously made fires. He could not give any explanation for the absence of this fact in his deposition under Section 161, Cr. P.C. He could not offer any explanation for the omission of the facts that Udaiveer asked the witnesses to continue the work of laying mud because he has no enmity with them but due to fear of injuries all took to their heels immediately afterwards. He admitted that he met Gajraj Singh on the way and told him that the assailants were armed with guns, katta, ballam and farsa. He admitted that he met Gajraj Singh on the way and told him that the assailants were armed with guns, katta, ballam and farsa. He could not offer any explanation as to why he did not disclose to the Investigating Officer that Gajraj Singh on learning about the murder of his brother said that when his brother had been done to death what is there for him to remain alive. He said that since Gajraj Singh was going to die alone, the witnesses accompanied him for some distance. This further indicates that the eye-witnesses did not accompany Gajraj for long. Gajraj Singh, according to him, fired after moving about two furlongs. According to him they met Gajraj Singh at about 1, 1-1/2 furlong from the village. Thus, we can safely conclude that this witness who has run away from the spot for fear of his life is not likely to accompany Gajraj to any distance at all and his previous statement that he came to his village is correct. At the time of opening fire Gajraj Singh was at a distance of 25-30 paces from the assailants. No light was available there. He made one fire. The second fire was missed. He made no further fire. He could not offer any explanation for the omission of this fact in his statement given to the Investigating Officer that on the fire made by Gajraj Singh he heard Udaiveer's scream 'Ari Maiya'. He further could not explain the omission of the names of witnesses Hakim Singh and Bachchu Singh in his statement given to the Investigating Officer under Section 161, Cr. P.C. He further stated that he had gone to the spot from where he heard sound "Ari Maiya Mai Kya Karun". Blood was lying there. That spot was shown by him to the Investigating Officer. He had admitted that he did not know the name of the 10th person. He never identified him. Gajraj Singh admittedly fired upon the miscreants from a distance of 25-30 paces and the assailants fired on Gajraj Singh after coming close say about 10-15 paces. 13. HE had disclosed the name of the father of Mikki. Mikki has two brothers Jaswant and Hakim Singh. Hakim Singh was named in the litigation as a witness. Hakim Singh is his uncle. HE evaded the question that Than Singh lodged a case under Section 133, Cr. 13. HE had disclosed the name of the father of Mikki. Mikki has two brothers Jaswant and Hakim Singh. Hakim Singh was named in the litigation as a witness. Hakim Singh is his uncle. HE evaded the question that Than Singh lodged a case under Section 133, Cr. P.C. against his father. His brother and uncle Hakim Singh were party in that proceeding. HE had refuted the suggestion that he did not see any such incident. HE also refuted that name of Ramji Lal was included amongst the culprits on account of enmity or party bandi. HE has also denied the suggestion that the names of Rishi and Radhey Lal have been included in the list of culprits at the instance of his sarhu Laxman Singh. 14. THUS, a close scrutiny of his evidence shows that he had improved materially upon his statement made to the Investigating Officer. He did not name Bachchu Singh and Hakim Singh as the persons who accompanied Gajraj Singh. He also appears to be doubtful with regard to the identification of the weapons and the culprits. He did not name Ram Ji Lal amongst the assailants in his deposition in Court. In our opinion no soil laying was possible without any source of light during night. It is impossible for any one to identify any person from the distance of 30-35 paces in the moonlight. It will not be possible to identify the culprits in their own torch light. None of the witnesses themselves possessed any torch or any other sources of light. It appears to be highly unbelievable that the assailants who came to kill Ghamandi will disclose their names and let their identity thus be known to witnesses. This further indicates that in all possibility the witnesses were not knowing the assailants from before otherwise version of an assailant disclosing his name would not have been introduced. This sounds most unnatural and we are not prepared to attach any value to such an assertion. He had introduced a new case in the examination-in-chief as well as in his cross-examination. According to him as many as 5-6 fires including one by Udaiveer were made almost simultaneously upon the victim initially and later on 3 more shots were fired by Udaiveer but the medical evidence does not corroborate this story of his. He is closely related with informant and deceased. According to him as many as 5-6 fires including one by Udaiveer were made almost simultaneously upon the victim initially and later on 3 more shots were fired by Udaiveer but the medical evidence does not corroborate this story of his. He is closely related with informant and deceased. We find doubtful even the version of preparing the mud road by six persons alone. His presence, in our opinion, in view of the above discussion is rendered highly doubtful. Further from medical evidence, it appears that only four shots hit the victim, i.e., first on the head and other on chest and arms. None of them had raised any alarm at any point of time either on the arrival of the assailants or after shooting. He had not disclosed to the Investigating Officer that Gajraj Singh gave out that his brother has been murdered why should he remain alive. He did not disclose to Investigating Officer with regard to Om Prakash having seen the assailants moving away and identified them. He appears to be partisan and inimical also. Thus, his evidence in our opinion is not worthy of credence to convict to conceit the appellants. 15. IN the same category and for the above said reason, we do not find acceptable the statement of Kunwar Pal Singh P. W. 3 who was present along with Jai Pal Singh. This witness had completely changed the prosecution story. 16. ACCORDING to him, Udaiveer fired a shot upon Ghamandi by putting barrel of his gun on his head. This is clearly a material improvement upon statement of Jaipal in order to explain absence of blackening, tattooing and charring. He also stated that a number of gun shots initially were fired upon Ghamandi. They tried to move away for fear when Udaiveer asked them to carry on their job. This improvement has been made in the statement of these two witnesses in order to make the presence of the witnesses probable. He had improved upon the testimony of P.W. 2 to the extent that they asked Gajraj Singh not to move towards the assailants because they are armed. On this, Gajraj Singh said "Mera Bhai Mar Gaya To Mai Jeekar Kya Karoonga." ACCORDING to him, the culprits came towards the village. Gajraj Singh fired from a distance of 30-35 paces upon the culprits. One of the culprits sustained firearm injury. On this, Gajraj Singh said "Mera Bhai Mar Gaya To Mai Jeekar Kya Karoonga." ACCORDING to him, the culprits came towards the village. Gajraj Singh fired from a distance of 30-35 paces upon the culprits. One of the culprits sustained firearm injury. He cried out "Maiya I am dying". That voice appears to be of Udaiveer and that is how he knew this is Udaiveer, Gajraj Singh fired twice upon him. One of the shots did not discharge. He turned around and started to run. He was again fired twice. This fire hit on his buttock and the other part of the body. Gajraj Singh thereafter took to his heels and tried to fire from his gun. This witness shouted that we are coming. This clearly shows that other witnesses were not accompanying Gajraj. By this time the assailants turned back towards the field of Om Prakash and started running. Gajraj came back towards them after receiving the injuries. Thereafter Gajraj Singh asked to move towards Ghamandi. This in, our opinion, is a highly doubtful situation. A person who is injured is not likely to move immediately to the place where deceased was lying especially when assailants were also retreating in that very direction. The Investigating Officer, according to him, had examined him. He admitted that he had told him the names of those persons who were armed with country made pistol and opened fired upon Ghamandi. He said that he did not understand why this fact did not find place in his statement to the Investigating Officer. He further showed his inability to explain that as to why in his statement names of Bachchu Singh and Hakim Singh who accompanied Gajraj Singh did not find place. He was unable to explain omission in his statement of the fact that he had told Gajraj Singh that his brother had been killed he should not go there. He was also unable to explain the omission of the fact that Gajraj Singh had fired from a distance of 30-35 paces upon the culprits in the statement under Section 161, Cr. P.C. He also was unable to explain the omission that the shot fired by Gajraj hit a miscreant who screamed out. This clearly means that he had not identified Udaiveer. His statement is full of new facts which constitute material improvement in the initial prosecution version. P.C. He also was unable to explain the omission that the shot fired by Gajraj hit a miscreant who screamed out. This clearly means that he had not identified Udaiveer. His statement is full of new facts which constitute material improvement in the initial prosecution version. The road according to him was being constructed for the last one month. He was unable to give out as to how many days before he participated in construction of the road. He was unable to give out specific number of days he had done this work. He was unable to confirm the fact that any meeting prior to the meeting held on that night was held for this purpose or not. He had admitted that when the fires were made they were completely stunned. They felt afraid but they did not run away from the spot. The assailants did not say anything to them. On the contrary they asked them to keep working as they had nothing do with them. He could not explain the omission of this fact in his statement to the Investigating Officer. All this has been introduced to make the presence of witnesses and the identification by them of the assailants probable. ACCORDING to him, Gajraj Singh sustained two gunshot injuries at the time when he was trying to run away. He sustained two more gunshot injuries when he was running back. Thus, according to him Gajraj Singh was fired upon four times which is not corroborated by the medical evidence. He evaded answer to the querry that whether accused Bhup Singh was Director of Sadhan Sahakari Samiti or not. He denied the suggestion that he had taken a loan from the above committee and had executed a pronote and a decree was passed against him in that connection. He did not disclose anything to people of the village. There was silence in the village. He denied to have disclosed anything to Gajraj Singh when they were moving towards the dead body. Non arrival of any villager with Gajraj further creates suspicion in the authenticity of the prosecution witnesses. Thus, the evidence of this witness suffers from many infirmities and embellishment. We are not prepared to accept that the assailants who had come to kill Ghamandi will talk to witnesses after achieving their goal. Non arrival of any villager with Gajraj further creates suspicion in the authenticity of the prosecution witnesses. Thus, the evidence of this witness suffers from many infirmities and embellishment. We are not prepared to accept that the assailants who had come to kill Ghamandi will talk to witnesses after achieving their goal. After this it is impossible that assailants will move towards village unless dacoity was their next motive. That is no body's case. Gajraj's firing and injury to Udaiveer when the assailants were moving towards the village and the injured assailant crying out I am dead, in the circumstances, is also unacceptable to us. Identification of Udaiveer by his voice in our opinion is an ingenuity of the prosecutor to make his identification probable. Moreover this part of the prosecution that he before firing upon deceased also gave out on being challenged by him that he is Udaiveer is also an ornamentation for making his identification by witnesses certain. No disclosure of names of those assailants who were possessed of tamanchas and a contrary statement in Court to this effect does not inspire our confidence. Omission to name Bacchu Singh and Hakim Singh as companions of Gajraj Singh is another aspect, together with absence of any injury to these witnesses seriously undermines the worth of his evidence. The above facts and circumstances occurring in his testimony render his evidence wholly unreliable in our opinion. Now coming to the testimony of Bachchu Singh (P.W. 4), we find that P.W. 2 and P.W. 3 did not disclose to the Investigating Officer about the presence of this witness (P.W. 4) along with Gajraj Singh. We do not find it safe for this reason to place any reliance on his testimony. He has also stated the same thing, which Gajraj has stated. He is nephew of the deceased so he is bound to support the prosecution story as contained in F.I.R. and later on improved upon and developed in Court. 17. NOW we will take up the testimony of Gajraj Singh, the star witness being injured. Gajraj Singh had stated that it was decided that the road from the canal to the village shall be prepared by villagers by contributing labour. On the fateful night at 4.15 a.m. in the morning he was sleeping in the verandah in front of his room. He was awakened by gunfire report. Gajraj Singh had stated that it was decided that the road from the canal to the village shall be prepared by villagers by contributing labour. On the fateful night at 4.15 a.m. in the morning he was sleeping in the verandah in front of his room. He was awakened by gunfire report. He claims that he used to sleep with the licenced gun of his brother. After hearing gunshot report he moved along with his nephew Bachchu Singh towards the direction from where the report had emanated with the gun and cartridges. They moved to the site where shramdan was being done. In the way he met Hakim Singh and all the three moved towards the place of occurrence. Near the field of Mikki he met Harbaksh Singh, Jaipal Singh, Rajveer, Kunwar Pal Singh and Rajpal Singh. Mikki is the father of Jaipal Singh (P.W. 2). They disclosed to him not to move ahead because his brother was already killed. On his querry they disclosed the names of the culprits. P.W. 2 and P.W. 3 do not support him on this point. They also told that the culprits had weapons. They advised him not to go towards the culprits as they might kill him. He told them that he would like to die and proceeded to the place where his brother was killed. He was running straight in the direction from where these witnesses were returning. He did not claim that witnesses accompanied him at this juncture. Seeing the culprits he took position to fire towards accused person. When they were moving towards the field of Lakshmi he opened fire. Fire, according to him, hit Udaiveer who cried "Maiya I am dead" while he moved towards him. He fired again but the shot missed. By that time the culprits had come close to him. He got up and tried to run away. As soon as he stood up, he was fired upon. According to him Udaiveer after going 10 steps fell down. The other witnesses especially P.W. 3 contradicts him. When he turned around, he was again fired. He claims that he moved 8-10 paces further by taking shelter of edge of the road. He reloaded his gun and fired a third time upon the culprits. He challenged the culprits that he would not spare any one alive. According to him, witnesses also challenged the culprits. When he turned around, he was again fired. He claims that he moved 8-10 paces further by taking shelter of edge of the road. He reloaded his gun and fired a third time upon the culprits. He challenged the culprits that he would not spare any one alive. According to him, witnesses also challenged the culprits. Since the assailants were challenged by the villagers, they turned back to the field of Lakshman. While returning around and moving, assailants had stated that they had taught a lesson to Ghamandi and would see Gajraj Singh later on. This appears to us a well thought out improvement. This very clearly indicates that assailants could not identify Gajraj. He claimed that he had identified the assailants. Later on he enquired from the witnesses and summoned a register from the house of Bachchu Singh and prepared the report. He proved it as Ex. Ka-1. He had gone to Police Station Shashni and reported the matter there. He had admitted that now-a-days he used to come to his village on leave only once a year. He used to come twice a year on leave earlier. He evaded the next question to the effect whether Sadhan Sahakari Samiti is situated in Komari Gaon Sabha and also the question whether Ghamandi was a member of Sadhan Sahakari Samiti. He said that he knew the animosity and litigation between his brother and accused persons. He further admitted that Ghamandi gave statement against Udaiveer, Bhup Singh and Sukhveer son of Ramji Lal. He could not give out as to how many years ago this statement was given. He is an army man. He admitted that he did not live in the village. He stated that since he was not living in the village, he did not know whether Bhup Singh was accused in that case or not. He also admitted that he could not give out the names of the accused persons in shooting case upon Ramveer. He admitted that due to these persons being in one group Ghamandi gave statement against Bhup Singh. He could not give out any reason why this group was formed. In reply to the question why the appellants had formed a group, his reply was that Udaiveer Singh and Sukhveer Singh were renowned dacoits in the village and rest of the culprits used to visit him and Bhup Singh etc. He could not give out any reason why this group was formed. In reply to the question why the appellants had formed a group, his reply was that Udaiveer Singh and Sukhveer Singh were renowned dacoits in the village and rest of the culprits used to visit him and Bhup Singh etc. were history sheeters, so he felt that they were in one group. He had made no complaint against these persons. He admitted that no member of the group had ever threatened or spoken any bad words to the deceased or to him until the date of the incident. He disclosed that Udaiveer had told Ghamandi not to appear as witness otherwise the consequence would be bad. According to him the place where he had first taken position to fire upon Udaiveer and the place where he was sleeping was about 2, 2-1/2 furlongs. According to him, he had positioned himself close to the road where the laying of mud was done. That place was in the school field on its north east corner of the road which was about 3 feet high. It is where he had taken the position. He claimed that he did not sit but he had just taken position by bending himself and crouching. In our opinion it is difficult to fire sitting in such a posture. He claimed that when he was fired upon, the assailants were on the southern end. Injuries on the lower part below the waist belie completely this situation. According to him when the Investigating Officer inspected the spot, he was not there. He denied that any blood had fallen on the ground. He had admitted that the sugarcane in the field of Lakshmi was so high that a person could hide. He admitted that except moonlight no other light was available to the people who were contributing labour. According to him at that time a sheet of paper and a dot pen were brought and he prepared the report. Then he stated that one person from another village came. This was Om Prakash. His name appeared in the F.I.R. He was ploughing his field. According to him, when the report was transcribed almost sun had already appeared in the sky. It was 6.00 a.m. It took 8-10 minutes to transcribe. Then he went to the police station with 4-5 persons and lodged his report. This was Om Prakash. His name appeared in the F.I.R. He was ploughing his field. According to him, when the report was transcribed almost sun had already appeared in the sky. It was 6.00 a.m. It took 8-10 minutes to transcribe. Then he went to the police station with 4-5 persons and lodged his report. He denied the suggestion that Babulal is son of Bhup Singh. In reply to the question that did he know the name of the father of this accused as mentioned in the F.I.R. he replied that he did not name one person. He had forgotten his name. He knew the rest of the persons. He denied the suggestion that on the ground of animosity he had transcribed names of these assailants. The specific question is that when he did not know Babulal son of Bhup Singh how it had been transcribed in the F.I.R. He admitted that he had transcribed the name of Babulal son of Bhup Singh in the F.I.R. on the basis of disclosure made by the witnesses who were doing labour. He could not give the names of those persons who told this fact. He claimed that he is not knowing till the day of statement in Court that there was no Pradhan of village Komari and it was only one Pradhan of village Nagla Battisa, Nagla Preetam an Komari. He did not know the Pradhan of his village even today. He admitted that his brother was a witness in the case of Ram Veer Singh and Mahavir Singh. He had admitted the facts that he did not tell the Investigating Officer in his statement that in the field of Mikki, Jai Pal Singh, Rajveer and Kunwar Pal met him and told that his brother had been done to death. Since his brother was murdered, he had also not stated to the Investigating Officer that on his querry these witnesses gave out the names of the culprits who killed his brother. His explanation is that he had forgotten their names and therefore he could not disclose these facts to the Investigating Officer. For these reasons this fact does not find place in the F.I.R. as well. The facts of the assailants were armed do not find place in his statement given to the Investigating Officer. His explanation is that he had forgotten their names and therefore he could not disclose these facts to the Investigating Officer. For these reasons this fact does not find place in the F.I.R. as well. The facts of the assailants were armed do not find place in his statement given to the Investigating Officer. This fact is not in the F.I.R. He had stated that since his brother had been done to death, he would like to die. This fact does not find place in his statement under Section 161, Cr. P.C. The fact that his fire hit Udaiveer also does not find place in the statement given to the Investigating Officer. He claimed that he had heard the gun shot report of 4-5 shots. He claimed that after hearing gun shot he thought that the miscreants had surrounded the people who were contributing their labour for construction of the road. He admitted that no sound was coming from the place where the labour was being contributed when he was inside the village. After he started towards the place of occurrence no one met him on the way. He admitted that when he was informed by the witnesses in the field of Mikki about the murder of his brother, the assailants were not visible to him. He told that he could see them only when they were at a distance of 30-35 paces from him. The place where six villagers were engaged in laying mud was not visible from the field of Mikki. The explanation is that there was some distance and a culprit was standing in between. On being asked as to why he kept the gun of his brother with him at the time of going to bed, his reply was that he was doing it for his satisfaction. He pleaded ignorance to the fact that in the case of Udaiveer and Sukhveer his brother had deposed or not. He pleaded ignorance to the fact that any case under Section 107/117, Cr. P.C. was contested between him and Bhup Singh or not. 18. THUS, from the above discussion of his evidence, we find that this witness has made material improvements in his testimony from his statement given to the Investigating Officer. We do not feel it safe to place any reliance on his statement as well. P.C. was contested between him and Bhup Singh or not. 18. THUS, from the above discussion of his evidence, we find that this witness has made material improvements in his testimony from his statement given to the Investigating Officer. We do not feel it safe to place any reliance on his statement as well. We do not accept his version to the extent that he came to the place along with gun and cartridges with Bachchu Singh, Hakim Singh who were not named by other witnesses with him. He has improved upon his case that after first fire he continued to load his gun repeatedly but it did not fire. This fact does not find place in the statement given to Investigating Officer as well as in the F.I.R. In the F.I.R., he had specifically stated that his gun did not fire after first fire. If he would have fired repeatedly then this fact must have found place in the F.I.R. or statement to the Investigating Officer. The omission is material. Apart from this the medical evidence is contrary to his case that he was fired upon four rounds. There appears possibility that he may have been present. The probability is that he may have been present with his brother as the spot when the firing was resorted to. At the very spot 6-7, fires were made upon the deceased. He and deceased may have sustained injuries in the same transaction. It does not inspire our confidence that injury was caused to him in the Mikki's field. His version as produced is not acceptable. It being full of material improvements and embellishments is bereft of implicit confidence and reliability. The main reason is that he claimed that he identified the culprits from a distance of 30-35 paces in the moonlight which in our opinion is not possible. Learned counsel for the appellants in this regard has placed reliance upon the case, State of Uttar Pradesh v. Ashok Kumar and another, 1979 SCC 874 (875), in which the Apex Court had observed that even in the light of moon, identification beyond 7 yards is not possible. In the present case witnesses claim to have identified the assailants from the distance of 30-35 paces. One step is about 2-1/4 foot. The distance of 30-35 paces comes to about 70-80 feet which is more than 25 yards. In the present case witnesses claim to have identified the assailants from the distance of 30-35 paces. One step is about 2-1/4 foot. The distance of 30-35 paces comes to about 70-80 feet which is more than 25 yards. Therefore we find that it is highly doubtful that the witnesses had sufficient opportunity to identify the assailants. In the circumstances, we are not prepared to accept the statement of this witness also. Apart from this, one more fact is important that no body will dare to run alone towards the culprits, especially after coming to know the fact that a number of them are possessed with firearms. The fact that he had not disclosed in the F.I.R. or to the Investigating Officer that he had told the witnesses that when his brother had been killed, he would not like to live and therefore, he ran towards them. No doubt he was an army man and an army man is expected to expose valour but for this alone, we are not prepared to accept his testimony. He is a witness of his own cause who is prepared to deliver all kinds of falsehood to support his case. He appears to hold no sanctity for truth. We find it impossible to segregate chaff from the grain in this case. 19. THUS, we find that none of the witnesses knew the appellant Ram Chand yet his name finds place in the F.I.R. This circumstance thus is enough for assuming that the name of Ram Chand was transcribed in the F.I.R. after due deliberations. The manner of the incident has been completely changed in the Court by the witnesses from the one disclosed in the F.I.R. and adhered to during their 161, Cr. P.C. statements. P.W. 4 had admitted that the names of parents of Rishi and Radhey were not known to him till this date. The name of the father of these persons are mentioned in the F.I.R. He had been suggested that since he is of the same family to which Ghamandi belonged, therefore, he is deposing. 20. SO far as C.W. 1 Om Prakash is concerned, his testimony also does not inspire confidence. We do not find his testimony reliable for the reason that we are not prepared to accept that the assailants moved towards village. This development has been made to fix the identity of the assailants and afford P.Ws. 20. SO far as C.W. 1 Om Prakash is concerned, his testimony also does not inspire confidence. We do not find his testimony reliable for the reason that we are not prepared to accept that the assailants moved towards village. This development has been made to fix the identity of the assailants and afford P.Ws. 1, 2, 3 and 4 an opportunity to name the accused persons. He admitted that he had only seen Ghamandi lying dead having fatal injuries wherefrom blood was coming out. He also identified the culprits who were going 5-6 paces away from him towards south. He was arrested in the case of dacoity of village Shashni although he claimed that he was falsely involved in this case and he was acquitted. He was identified in that case and was granted bail. He pleaded ignorance about the fact whether any charge-sheet was submitted in that case or not. He admitted that Prem Pal was also accused in that case with him. Prem Pal was a resident of village Komari. He is witness for the murder of the wife of Lakshman Singh against some of the appellants. This murder took place after killing of Ghamandi. He is also an accused in the case of assault on a patrol who was an employee of the irrigation department. Bhup Singh appeared as witness in that case although he denied this fact. He is a resident of village Komari. He admitted that Shanker Lal was witness against him in that assault case. The case of murder of Shanker Lal is pending against him. He denied the fact that Bhup Singh had lodged a case under Section 307, I.P.C. against him. He denied the suggestion that his Uncle Charan Singh appeared as witness against Mahendra appellant. He admitted that his field does not fall around the road leading from Battisa to Komari. His field has been shown in the site plan. He claimed that he had heard 11-12 gunshot reports. After hearing first report of gun he thought that dacoits had come. He denied the suggestion that he had run away. He admitted that a number of cases were pending against him and he had apprehension of his murder. He admitted that he continued to plough. In the above circumstances we find that he is got up witness. After hearing first report of gun he thought that dacoits had come. He denied the suggestion that he had run away. He admitted that a number of cases were pending against him and he had apprehension of his murder. He admitted that he continued to plough. In the above circumstances we find that he is got up witness. He is not likely to come to his field at night when he apprehends danger to his life. He heard the sound of five fires after 10 minutes and of 7-8 fires after 15-20 minutes. After first five fires, no alarm emanated from village Battisa. Some alarm he could hear coming from the place where the mud was being thrown. He had hidden himself for about one hour at the place. It is not possible for us to accept that once he had concealed himself, he could identify the assailants who were running away. Moreover we have already discarded the prosecution version of the assailants coming towards village for no rhyme or reason. He admitted that Gajraj and other witnesses did not tell anything. He went away after seeing dead body of Ghamandi. A number of times summons had reached but he did not come to depose. For the first time today he had appeared. For the reasons stated above, we do not find it safe to place any implicit reliance on his testimony. He appears to us a completely got up and inimical witness who is ready to support a false case. He had clearly admitted that he did not see blood stains on the clothes of Udaiveer nor he had seen Udaiveer moving with the support of others. He was moving of his own. He was not moving like a lame person. This witness denied the case set up by the prosecution that Udaiveer sustained injuries and cried out. He admitted that Rishi was armed with pharsa but he had not disclosed the name of the parent of Rishi because he did not know the name at that time nor he know it till today. He did not know where he had been doing work. C.W. Rajveer was examined to prove the existence of Sahakari Samiti in village Komari which fact was denied or evaded by all the eye-witnesses. He also proved the existence of decrees against Bhup Singh, Jaswant Singh and Bhim Singh. He did not know where he had been doing work. C.W. Rajveer was examined to prove the existence of Sahakari Samiti in village Komari which fact was denied or evaded by all the eye-witnesses. He also proved the existence of decrees against Bhup Singh, Jaswant Singh and Bhim Singh. The witnesses made evasive replies on this issue. 21. FOR the foregoing reasons, we have come to the conclusion that the witnesses produced by the prosecution are not only interested but their testimony is full of material improvements and their presence at the time of occurrence is highly doubtful ; that it is also doubtful that P.W. 1 Gajraj Singh has given a truthful version of the occurrence ; that the testimony of C.W. 1 Om Prakash does not inspire confidence and is not reliable and that it is highly doubtful that the witnesses had sufficient opportunity to identify the assailants and accordingly, the identity of appellants as assailants of the deceased has not been established beyond reasonable doubt. 22. THE appeal is, therefore, allowed. THE order of learned Sessions Judge convicting the appellant under Section 302/149 and 307/149, I.P.C. are set aside and the appellants are acquitted of the offence charged for, convicted and sentenced. They are on bail. They need not surrender. Their bail bonds are cancelled and sureties discharged.