Judgment J.C. Gupta & Lakshmi Bihari, JJ. (1) By judgment dated 2.3.1981, passed by the then VIIth Additional Sessions Judge, Bareilly in Sessions Trial No. 357 of 1980, the appellants have been found guilty for committing murder of Pati Ram. While recording conviction, the appellant Badri Prasad was found guilty under Section 302, I.P.C. and other two appellants Munshi and Maiku were found guilty under Section 302, I.P.C. read with Section 34, I.P.C. However, the learned Sessions Judge while passing the order of sentence, has sentenced each of the appellants for life imprisonment under Section 302, I.P.C. read with Section 34, I.P.C. Aggrieved by the said judgment, present appeal has been preferred by the above named three appellants. (2) Prosecution story in brief is that Chet Ram was uncle of appellant Badri Prasad. He was village Pradhan while deceased Pati Ram was Up Pradhan. About three and half years ago, Chet Ram was removed from the office of the Pradhan and the charge of the office was handed over to Up Pradhan Pati Ram. It is said that on account of this, the accused Badri Prasad started bearing enmity with the deceased Pati Ram. It is further alleged that during the last Assembly election, the accused persons supported one Rana Saheb while the deceased Pati Ram supported the opponent of Rana Saheb. An altercation also took place between the accused Badri Prasad and the deceased Pati Ram during the last Assembly elections. On the day of occurrence, i.e. in the night between 4/5.8.1980, the deceased Pati Ram was sleeping outside his baithak. By his side, Sohan Lal s/o Pati Ram and Ram Bharose his brother were also sleeping at the same place on separate cots. The cot of Sohan Lal was about 4 or 5 paces in the west of the cot of the deceased Pati Ram and the cot of Ram Bharose was about 2 or 3 paces in further west of the cot of the first informant Sohan Lal. At about 2 a.m. Sohan Lal woke up on hearing some sound and he saw in the light of lantern hanging on a peg at the door of the baithak that accused Munshi had caught hold of head of Pati Ram, accused Maiku was holding legs of Pati Ram and the appellant Badri Prasad was standing in the east of the cot of Pati Ram. Seeing this, Sohan Lal raised alarm, thereupon Ram Bharose, Shyam Lal and Raghu Nath woke up. Shyam Lal, P.W. 3 is said to be sleeping at his baithak about 50-55 paces away from the baithak of the deceased while Raghu Nath was sleeping on the roof of the house of Sohan Lal which was removed by 12 paces from the baithak of the deceased on the other side of the rasta. All the witnesses are alleged to have assembled near the place of occurrence at a distance of about 4-5 paces from the cot of the deceased. The prosecution story further is that when the witnesses had arrived, in their presence and within their view, the appellant Badri Prasad fired upon the deceased from a country made pistol which he was holding. Thereafter, all the accused persons ran away towards jungle. Pati Ram died an instantaneous death. The witnesses claimed to have identified the assailants in the light of lantern and the torches which they had brought and flashed. (3) Sohan Lal, P.W. 1 then himself scribed F.I.R. Ext. Ka-1 and lodged the same at police station Bhamora at 4.15 p.m. distance of police station was three miles from the place of occurrence. The case was registered in chick register and general diary and investigation ensued. S.I. Vidya Dhar Pandey, P.W. 7 took up investigation, recorded statement of Sohan Lal and thereafter proceeded to the place of occurrence with police force. He reached there at about 5.50 a.m. Inquest was held at 6.20 a.m. After preparing necessary papers the dead body of the deceased Pati Ram was sent in a sealed bundle to mortuary for post-mortem examination. Investigating Officer thereafter made inspection of the scene of occurrence and collected blood stained earth, plain earth and pieces of string from the cot where the dead body of the deceased was found. He also prepared site plan and examined the lantern and torches and prepared their memos. He thereafter recorded statements of other witnesses and submitted charge-sheet against all the three appellants on completion of investigation. (4) Dr. P.K. Bass conducted autopsy on the body of the deceased Pati Ram on 5.8.1980 at 3.45 p.m. He found only one ante-mortem injury, which was as under:- "Gun shot wound of entry 2 cm. 2 cm. cavity deep (Rt) side back lower part 6 cm. from midline and 14 cm. (4) Dr. P.K. Bass conducted autopsy on the body of the deceased Pati Ram on 5.8.1980 at 3.45 p.m. He found only one ante-mortem injury, which was as under:- "Gun shot wound of entry 2 cm. 2 cm. cavity deep (Rt) side back lower part 6 cm. from midline and 14 cm. above right Gulteal fold, margin inverted lacerated blackening and charring present direction anteriorily and slightly upwards. In internal examination iliac bone was found fractured in middle upper part. Peritoneum was punctured posteriorily corresponding to wound of entry. Cavity contained blood approximately one litre. One wadding piece and four shots recovered from there. Stomach contained semi-digested food. One shot was recovered from small intestine and one shot from large intestine. In the opinion of the doctor death had occurred due to shock and haemorrhage due to ante-mortem injury. Report of post-mortem examination is Exhibit Ka-20." At the trial prosecution produced 7 witnesses, of whom Sohan Lal, P.W. 1, Shyam Lal P.W. 3, and Raghu Nath P.W. 4 were the eye-witnesses. P.W. 2 constable Shanti Sawarup deposed that he had carried the dead body of the deceased to mortuary from the place of occurrence. P.W. 5 head constable Jagdish Singh proved the chick F.I.R. and relevant G.D. entries. P.W. 6 Dr. P.K. Bass proved the post-mortem report and further opined that ante-mortem injury was of firearm and was sufficient to cause death in ordinary course of nature. P.W. 7, Vidya Dhar Pandey is the Investigating Officer. (5) The case of appellants before trial court was of denial and they stated of their false implication due to enmity with the witnesses. They produced Chhotey Lal, D.W. 1 and Nathu Lal, D.W. 2 in defence. (6) Placing reliance on the testimony of Sohan Lal, P.W. 1, Shyam Lal, P.W. 3 and Raghu Nath, P.W. 4, the learned Sessions Judge has found the appellants guilty of committing murder of Pati Ram in the manner as alleged by the prosecution. We have heard Sri A.B.L. Gaur, learned counsel appearing for the appellants and Sri Ashok Kumar Dwivedi, learned A.G.A. for the State. We have heard Sri A.B.L. Gaur, learned counsel appearing for the appellants and Sri Ashok Kumar Dwivedi, learned A.G.A. for the State. (7) Sri A.B.L. Gaur, learned counsel for the appellants submitted before us that it was a case of hit and run of single shot and the evidence as well as circumstances appearing in the case indicate that the deceased was done to death during darkness by some unknown assailants and none could witness the incident. The evidence of the alleged witnesses produced at the trial is highly improbable and unnatural. The witnesses examined at the trial are interested and partisan and it is highly doubtful that they could wake up in time to recognise the assailants. It is further submitted that their evidence is also in conflict with the medical evidence and therefore, for all these reasons the conviction of the appellants is not sustainable. (8) The factum of death of Pati Ram due to gun shot injury has neither been assailed nor disputed by the learned counsel for the appellants. This fact is also otherwise fully established from the evidence on record. Dr. P.K. Bass, P.W. 6 who had conducted autopsy on the dead body of deceased Pati Ram, had found one gun shot wound entry on the right side back lower part and stated before the trial court that the death of Pati Ram was caused due to shock and haemorrhage as a result of the aforesaid ante-mortem injury. Even as per the prosecution case, the deceased had sustained only one gun shot injury and the role of causing this injury was attributed to appellant Badri Prasad. The other appellants Munshi and Maiku have been assigned the role of catching hold. The incident occurred in dead hours of night at about 2 a.m. on 5.8.1980, when the deceased was sleeping in open place in front of his baithak. The prosecution produced three witnesses of fact. They were Sohan Lal, P.W. 1, Shyam Lal, P.W. 3 and Raghu Nath P.W. 4. (9) Sohan Lal, P.W. 1 is son of deceased Pati Ram. He stated of the motive that Chet Ram was Pradhan of village Chakarpur. He was uncle of the accused Badri Prasad. The deceased Pati Ram was Up Pradhan. They were Sohan Lal, P.W. 1, Shyam Lal, P.W. 3 and Raghu Nath P.W. 4. (9) Sohan Lal, P.W. 1 is son of deceased Pati Ram. He stated of the motive that Chet Ram was Pradhan of village Chakarpur. He was uncle of the accused Badri Prasad. The deceased Pati Ram was Up Pradhan. About three and half years prior to the occurrence in question, Chet Ram was removed from the office of Pradhan and charge of that office was handed over to Up Pradhan Pati Ram, deceased of the present case. Badri Prasad started bearing enmity with the deceased Pati Ram on account of removal of his uncle from the post. This witness further alleged that during the last Assembly election, the accused persons supported Rana Saheb while deceased Pati Ram supported the opponent of Rana Saheb. Some altercation also took place between the accused Badri Prasad and the deceased Pati Ram during the said election. It was submitted by the learned counsel for the appellant that the motive alleged by the prosecution is too weak and inadequate and could hardly be sufficient to prompt the appellants to commit murder of deceased Pati Ram. In cross-examination, P.W. 1, Sohan Lal admitted that prior to the occurrence in question, some incident had occurred between his father Pati Ram and uncle Nathu Lal and the accused persons had supported Nathu Lal. From the evidence on record, therefore, it is clear that if on one hand accused Badri Prasad was having some grudge against deceased Pati Ram, on the other hand the first informant was having an equal motive to nominate the appellants falsely. (10) P.W. 1, Sohan Lal stated that in the night of occurrence, he was also sleeping in front of baithak of his father and his cot was placed at a distance of 4-5 paces from the cot of the deceased Pati Ram. He further stated that his other brother Ram Bharose was also sleeping on a separate cot. He admitted that his residential house was on the other side of 'rasta' in the north at a distance of 10-12 paces from the baithak of the deceased. On the night of incident, his wife and children were sleeping in his residential house while his cousin brother Raghu Nath slept on the roof of his residential house. He admitted that his residential house was on the other side of 'rasta' in the north at a distance of 10-12 paces from the baithak of the deceased. On the night of incident, his wife and children were sleeping in his residential house while his cousin brother Raghu Nath slept on the roof of his residential house. In his deposition before the Court, he stated that on hearing the sound of movement of the accused persons, he woke up and saw that Munshi accused was pressing the head of Pati Ram while Maiku had caught hold of legs of Pati Ram. The accused Badri Prasad was standing in the east of the cot of the deceased with a country made pistol in his hand. As soon as he got up, he raised alarm whereupon Ram Bharose, Raghu Nath and Shyam Lal got up and arrived at the scene of occurrence. Raghu Nath and Shyam Lal, who were having torches in their hands, flashed them and then Badri Prasad appellant fired a shot from his country made pistol upon Pati Ram and thereafter all the appellants ran away. In cross-examination, he admitted that baithak of Shyam Lal was situated about 50-55 paces from his baithak and the roof of his residential house was 12 feet in height. His cousin brother also has his own residential house where his wife and children were sleeping but he had come to sleep at the place of occurrence. It was also stated by him that when he woke up on hearing the sound of movement of feet of the accused persons, he immediately stood up and started raising alarm. At that time, the accused persons were only at a distance of 5-6 paces from him, and they were in east. The accused persons did not run away, when he raised cries. Ram Bharose also raised alarm but no firing was made either on him or at Ram Bharose. He further admitted that till the witnesses arrived at the scene of occurrence no firing was made by appellant Badri Prasad. P.W. 3, Shyam Lal stated that on the night of occurrence, he was sleeping in the baithak of his first cousin Surdas which was jointly owned by him though he admitted that partition had taken place between him and Surdas. P.W. 3, Shyam Lal stated that on the night of occurrence, he was sleeping in the baithak of his first cousin Surdas which was jointly owned by him though he admitted that partition had taken place between him and Surdas. They have separate agricultural land and houses and he used to live in his residential house which was placed at a considerable distance from the place of occurrence. It appears to us that since his residential house was situated at a distant place, he stated that he was sleeping at the baithak of Surdas for no ostensible reason. In any view of the matter even this baithak of Surdas was removed by about 55 paces from the place of occurrence. According to Shyam Lal, P.W. 3, he woke up on hearing the cries of Sohan Lal, thereafter he wake up Badri Prasad witness and Surdas. Both he and Badri Prasad took up lathis and torches and they shouted from that very place that they were coming for their help and then they ran towards the place of occurrence flashing their torches. He admitted that he is of the biradari of Sohan Lal and that he was not on speaking terms with appellant Badri Prasad. (11) P.W. 4, Raghu Nath stated that on the night of occurrence, he was sleeping on the roof of residential house of Pati Ram. At about 2 a.m. he woke up on hearing the cries of Sohan Lal. He flashed his torch towards the side from where cry was coming and saw all the appellants standing near the cot of the deceased. Accused Munshi and Maiku had caught hold of head and legs of the deceased respectively while Badri Prasad was standing by the eastern side of the cot holding a tamancha in his hand. He came down from the roof. Shyam Lal and Badri Prasad witnesses had also arrived there. Shyam Lal was having a torch. Thereafter, Badri Prasad appellant fired upon the deceased and then all the appellants ran away. He admitted that Pati Ram deceased was his real uncle and his residential house was situated about 60 paces from the baithak of Pati Ram. Shyam Lal and Badri Prasad witnesses had also arrived there. Shyam Lal was having a torch. Thereafter, Badri Prasad appellant fired upon the deceased and then all the appellants ran away. He admitted that Pati Ram deceased was his real uncle and his residential house was situated about 60 paces from the baithak of Pati Ram. He tried to explain his presence at the residential house of the deceased by stating that since some guests had come at his house, he had come to sleep at Pati Ram's house due to shortage of number of cots. However, reason of his not sleeping in his own house and of his having gone to sleep at the house of Pati Ram was not disclosed by him to the Investigating Officer when his statement was recorded under Section 161, Cr. P.C. rather he stated before the Investigating Officer that since no empty cot was found near the baithak, he had gone to sleep over the roof of residential house of Pati Ram. In cross-examination, he further admitted that when he had seen the appellants standing near the cot of the deceased, he shouted from the roof itself as to why they had caught hold of Pati Ram. The staircase had 8-10 stairs. He came down from the stair case. The cot of the deceased was placed at a distance of about 20 paces from the last step of the stair case and when he was about 5-6 paces away from the cot of Pati Ram, the appellant Badri Prasad fired upon Pati Ram deceased. He further stated that he had shown to the Investigating Officer the place from where he had seen the appellant Badri Prasad firing upon the deceased and when his attention was invited to the site plan, he could not explain why that place has not been shown by the Investigating Officer in the site plan. He also admitted that the Investigating Officer had arrived in the village at about 3.30 a.m. and he remained present by the side of the dead body till 7 a.m. (12) From the evidence of the witnesses, it is, thus, evident that P.W. 1, Sohan Lal and P.W. 4, Raghu Nath were closely related to the deceased Pati Ram and inimical to the appellants. P.W. 3, Shyam Lal was also closely related to the deceased and was not on speaking term with the appellant Badri Prasad. He was of the biradari of Sohan Lal. The incident had occurred during the dead hours of night and it was a case of single shot when the deceased was sleeping outside his baithak and all the witnesses who deposed about the incident are interested and inimical, therefore, a great responsibility lies on our shoulders to examine the evidence with utmost care and caution. P.W. 1, Sohan Lal admitted that his wife and children were sleeping in the residential house which was removed by about 20 paces from the place of occurrence. At the time of incident, he was aged about 26-27 years. Normally he was expected to be sleeping with his family inside his residential house. Similarly, P.W. 4, Raghu Nath, who has his own residential house about 60 paces removed from the place of occurrence, stated that on the night of occurrence, he had come to sleep at the residential house of Pati Ram because some guests had arrived at his house and there was shortage of number of cots. But such a reason was not told by him to the Investigating Officer. On the other hand, he gave out altogether a different reason. Shyam Lal, P.W. 3 too has his residential house removed by 60 paces from the place of occurrence and, therefore, he stated that on the night of occurrence, he was sleeping at the baithak of his first cousin Surdas though he admitted that there had been partition of properties between him and Surdas. Apart from the fact that presence of witnesses near about the place of occurrence is by chance, their evidence also suffers from improbabilities and unnaturalities. As per the statement of P.W. 1, Sohan Lal, he got up on hearing sound of movement of feet of accused persons. This was not stated by him before the Investigating Officer. In any view of the matter, according to him when he got up, he immediately started crying. Ram Bharose who was sleeping on the other cot also got up and he too started raising cries. At that time, all the appellants were placed only at a distance of 5 paces from them yet surprisingly none of the assailants made any attempt on the witnesses nor even they asked them to keep silence. Ram Bharose who was sleeping on the other cot also got up and he too started raising cries. At that time, all the appellants were placed only at a distance of 5 paces from them yet surprisingly none of the assailants made any attempt on the witnesses nor even they asked them to keep silence. It has further come in the evidence of Sohan Lal, P.W. 1 that the accused persons waited for some time and firing was made only when the witnesses (13) Shyam Lal, P.W. 3 stated that when he got up on hearing the cries of Sohan Lal, he wake up Badri Prasad witness. Thereafter both of them picked up lathis and torches and then proceeded towards the baithak of Pati Ram shouting that there was nothing to worry as they were arriving for their help. It is ridiculous to believe that the appellants, who had chosen dead hours of night to execute their plan, would have waited at the scene of occurrence for arrival of the witnesses specially when Sohan Lal and Raghu Nath were making cries and witnesses Shyam Lal and Badri Prasad were coming shouting towards the scene of occurrence. This part of the evidence of the witnesses is highly improbable. As already pointed out above, it was a case of single shot at odd hours of night when every villager was fast asleep. Appreciating the improbability of the prosecution case, Sohan Lal, P.W. 1 tried to explain that he woke up by the sound of movement of feet of the assailants. In our view, it may be highly hazardous to rely on the claim of the witnesses that they woke up and saw the appellants committing murder of deceased Pati Ram. The findings recorded by the trial court to the contrary rebel against realism and lose their sanctity and credibility. (14) The medical evidence furnished by Dr. P.K. Bass also does not fit in with the manner of firing stated by the witnesses. According to the witnesses, the deceased was sleeping having his head in the south and the legs in the north while accused Badri Prasad was standing in the east of the cot over which Pati Ram was sleeping. Dr. Bass stated before the trial court that direction of gun shot wound entry was anteriorily and slightly upward towards head. According to the witnesses, the deceased was sleeping having his head in the south and the legs in the north while accused Badri Prasad was standing in the east of the cot over which Pati Ram was sleeping. Dr. Bass stated before the trial court that direction of gun shot wound entry was anteriorily and slightly upward towards head. He further opined that the ante-mortem injury of the deceased could not possibly be caused when firing was made by a person standing and deceased was sleeping with his back on the cot. However, according to the witnesses when firing was made upon the deceased by appellant Badri Prasad, he was standing near the cot and the deceased was sleeping on the cot. The medical evidence thus does not fit in with the manner of firing stated by the witnesses. Presence of lantern at the scene of occurrence is also doubtful. The site plan or the memo does not state that when the Investigating Officer reached the place of occurrence he found the lantern hanging on a peg at the door of the baithak. On the contrary, a plain reading of the memo gives an impression that the lantern was produced by P.W. 1, Sohan Lal when the Investigating Officer reached the place of occurrence. This memo was prepared after the inquest which was held in the morning at 6.20 a.m. (15) The F.I.R. also appears to be a suspicious document. According to the prosecution case, the first information was recorded at police station at 4.15 a.m. whereas as per the statement of P.W. 4, Raghu Nath, the Investigating Officer had arrived in the village at about 3.30 a.m. That means the Investigating Officer had arrived at the scene of occurrence much before the F.I.R. was recorded at the police station. In such circumstances, the F.I.R. looses sanctity and consequently corroborative value. (16) On going through the evidence of the prosecution witnesses, we have no hesitation in holding that they are got-up witnesses and their evidence, apart from being of partisan nature, suffers from serious infirmities and improbabilities making difficult for us to place reliance on their testimony. That apart, the medical evidence furnished by Dr. Bass is also not reconcilable with the manner of firing deposed by the witnesses. In such circumstances, it will be safe to extend the benefit of doubt to the appellants. That apart, the medical evidence furnished by Dr. Bass is also not reconcilable with the manner of firing deposed by the witnesses. In such circumstances, it will be safe to extend the benefit of doubt to the appellants. For the foregoing reasons, we are unable to uphold the conviction and sentence of the appellants recorded by the trial court. Accordingly this appeal is allowed. The judgment and order of the trial court convicting and sentencing the appellants is set aside. The appellants are acquitted of the offences charged for. They are on bail, they need not surrender. Their bail bonds are cancelled and sureties discharged.