NASEEMUDDIN, J. Criminal Appeal No. 243 of 1979 has been filed by Mansa Ram s/o Debi, Gulzari and Ram Chandra sons of Narain residents of village Mawai, police Asiwan and Criminal Appeal No. 248 of 1979 has been filed by Rai Narain Shukla son of Devi Sahai Shukla, resident of village Mau Mansoorpur, police station Safipur, presently residing in the town and Police Station Safipur District Unnao, against the judgment and order dated 10-3-1979 passed in S. T. No. 333 of 1978 by Shri R. P. Pandey, the then IV Additional Sessions Judge, Unnao, whereby the appellants were convicted for offences punishable under Sections 148, 302/149 I. P. C. , for committing the murders of Sheo Narain and Sheo Balak sons of Shanker, resident of village Mawai, PS. Aiwan, Dis trict Unnao and forming an unlawful as sembly and using fire- arms viz. Tamanchas. Raj Narain Shukla was further convicted under Section 404 I. P. C. They were sen tenced to R. I. for two years and fine of Rs. 500 each under Section 148, and to im prisonment for life on two counts under Section 302/149 I. P. C. and Raj Narain Shukla was further sentenced to two years R. I. and Rs. 500 as fine under Section 404 I. P. C. In default of payment of fine in two sentences six mor s further R. I. was to be undergone. All sentences were or dered to run concu entry. 2. These appeals were heard together and are being disposed of by this one com mon judgment. 3. The case of the prosecution, as narrated by P. W. 1 Murli Prasad s/o. Shankar Prasad, brother of the two deceased persons, in brief is that Murli Prasad and his brothers had won a case from the consolidation Courts against Mansa Ram accused-appellant and muta tion over the disputed property had also been effected accordingly. 3. The case of the prosecution, as narrated by P. W. 1 Murli Prasad s/o. Shankar Prasad, brother of the two deceased persons, in brief is that Murli Prasad and his brothers had won a case from the consolidation Courts against Mansa Ram accused-appellant and muta tion over the disputed property had also been effected accordingly. Murli Prasad and his two brothers Sheo Narain and Sheo Balak were also contesting a case in revenue Courts in Unnao with respect to the landed property left by their sister Mukunda, who had died issueless, as against Raj Narain Shukla accused and Shiv Narain arey and Sharda-accused Raj Narain had been claiming the land as a reversioner alleging himself to be the bhanju of the deceased husband of deceased Mukunda, although Shiv Narain and his brothers had been looking after the land in village Methi Tikur, and Sheo Narain had been residing in the village Methi Tikur since the lifetime of Mukunda deceased. The father of Gulzari and Ram Chandra accused who are Lohar, were op posed by one Mangli Carpenter in the election of the village Pradhan; and P. W. 1 Murli Prasad and his two brothers, the aforementioned, had helped Mangli in the election. Due to this reason these two ap pellants had also been feeling enmity. An earlier occurrence had also taken place in between the two sides which was also reported to the police by lodging a report by P. W. 1 vide Ext. Ka. 1. On 29-10-1977 at about 5. 30 p. m. while P. W. 1 Murli Prasad and his two brothers Sheo Narain and Sheo Balak were returning back from Unnao after attending to the above revenue case by train which is 4 B. C. train for Safipur, where from they had to go three miles on foot to their village Mawai Lal , then the train stopped at village Methi Tikur, and then advanced a few paces, and then again stopped, when the four named accused (appellants) and one unidentified man came inside the compartment with attachies in their hands (which were men tioned to be bags having chains in the F. I. R. Ext. Ka. 2) and took out pistols therefrom and opened fires on Sheo Narain and Sheo Balak and injured them from a distance of about 1 cubit, the two injured succembed to their injuries one after the other. Ka. 2) and took out pistols therefrom and opened fires on Sheo Narain and Sheo Balak and injured them from a distance of about 1 cubit, the two injured succembed to their injuries one after the other. P. W. 1 Murli Prasad hid himself under the long seat of the compart ment in order to escape the shots. The occurrence was witnessed by Raj Narain Singh, Pahelwan P. W. 2, Raja Ram and Shanker Singh who had also boarded this train at about 4. 30 p. m. when the train had started from Unnao (according to F. I. R. Ext. Ka. 2 there were sitting many persons in the compartment ). That there was another man with these appellants who had also similarly opened fire on the two deceased in the same fashion but that man was not known to these witnesses since before the occurrence. That Raj Narain Shukla appellant snatched the gun of Sheo Narain deceased. The train stopped again and the miscreants ran away towards south in between the villages Atwa and Lootapur. The train reached Safipur at about 5. 50 p. m. On reaching Safipur P. W. 1 left the dead-body with the witnesses in the compartment and proceeded to lodge the F. I. R. at P. S. Safipur where he orally dic tated the F. I. R. (Ext. Ka. 2 ). The bogie was separated from the rest of the compart ments and was taken to the Yard. At about 8. 30 p. m. /9 p. m. , S. O. , G. R. P. came there and took down the statements of wit nesses. The inquest reports were prepared the next day on 30-10-1977. The Inves tigating Officer P. W. 11 Raja Singh, S. O. , G. R. P. investigated the case. The papers were sent by P. S. Safipur to P. S. G. R. P. , Unnao where the case was registered. After preparing of the inquest reports and memos of recovery etc. and other relevant documents the two dead-bodies of Sheo Narain and Sheo Balak were sent for autopsy and autopsy was conducted by P. W. 4 Dr. A. Akram. The investigation was completed and charge-sheet was sub mitted. One of the five charged persons viz. accused Udaibir, who had been arrested with a Tamancha and cartridges, was put up for test identification. Against him also charge-sheet was submitted. A. Akram. The investigation was completed and charge-sheet was sub mitted. One of the five charged persons viz. accused Udaibir, who had been arrested with a Tamancha and cartridges, was put up for test identification. Against him also charge-sheet was submitted. Since this person Udaibir has already acquitted and no appeal has been filed against his acquit tal and since he is not before us so the facts about his arrest, identification etc. are left over here. The appellants had pleaded not guilty to the charges and had alleged false implication due to enmity and had alleged that the case has been cooked up by manipulating ante-timed F. I. R. They pleaded alibi also. The trial Court believed the evidence as against the present appel lants and disbelieved the defence and con victed and sentenced the appellants as above. Feeling aggrieved the present ap- peals have been filed. 4. Learned Counsel for the appel lants and learned A. G. A. were heard in detail. 5. P. W. 1 Murli Prasad and P. W. 2 Pahelwan Singh are the witnesses of the factum of occurrence. 6. P. W. 3 B. Rai is ballistic expert pertaining to the giving of opinion about the shot opened from the weapon allegedly recovered from Udaibir. P. W. 7 Ram Shankar, P. S. , Makhi; P. W 10 Mohan, Head Constable and P. W 12 B. S. Chauhan, Execu tive Magistrate are all witnesses relating to the arrest, recovery and identification etc. in respect of acquitted accused Udaibir, there fore, they have not much relevancy as far as details of the statements of these witnesses are concerned. 7. P. W. 5 Jageshwar Singh, Head Moharrir, P. S. Safipur proved the F. I. R. and G. D. (Ext. Ka. 2 and Ka. 16) of 6. 15 p. m. , P. W. 6 Ram Asrey Singh, S. O. , Safipur stated about his presence at the P. S. Safipur when the F. I. R. was lodged as well as his proceeding to the Railway Sta tion, Safipur, where P. W. 11 Raja Singh, S. O. , G. R. P. Unnao had also come. P. W. 8 R. J. Yadav, Head Constable. , G. R. P. Unnao proved the registering of the case on 29-10-1977 at 9 p. m. On receipt of papers from P. S. Safipur (Ext. Ka. P. W. 8 R. J. Yadav, Head Constable. , G. R. P. Unnao proved the registering of the case on 29-10-1977 at 9 p. m. On receipt of papers from P. S. Safipur (Ext. Ka. 20), P. W. 9 B. R. Vaish is the Station Master of Rail way Station, Safipur. His evidence shall be discussed at appropriate place in detail. P. W. 11 Raja Ram Yadav I. O. , G. R. P. Unnao proved the inquest reports, recoveries and investigation. 8. P. W. 4 Dr. A. Akram proved the conduct of the post-mortem of the two deceased on 30-10-1977 as follows: Ante-mortem injuries: Sheo Narain: (1) Gun-shot wound (entrance) 3" x 1 1/4" x neck deep on the left side of neck 2 1/4" below the back of the jaw. Blackening and tattooing present. Margins inverted. (2) Gun-shot wound (entrance) 1/2"\ 1/2 x neck deep on the lower half of the left jaw 1/2" above the injury No. 1 with black ening and tattooing Margins inverted. (3) Gun-shot wound (entrance) 2" x 1" abdominal cavity deep on the left hip hip bone. Margins inverted blackening and tattooing present. Directed downwards and forwards. (4) Gun-short wound 1/2" x l/4"xskin deep. 1/2" above the injury No. 3 with graz ing of the skin at the upper pole and making exit of it. On internal examination Dr. A. Akram (P. W. 4) found that second and fifth cervical vertebrae were fractured and spine was broken. Spinal cord was lacerated. His left lung was having big holes in the middle left of it. His pleura was having two gun-shot wounds. His jubler vein were injured on right and left side. His right scapula was fractured. Two big shots with one piece of wadding recovered from the body of deceased. The wall of the ab domen was inj -ared due to gun-shot wound on the left side of fossa. His peritoneum was also punctured. The small intestine was bearing holes at three places. Two big shots and two pieces ol waddings were present in the kidney. According to Dr. A. Akram (P. W. 4) the death of Sheo Narain was caused due to shock and haemorrhage as a result of injuries. One sealed envelop containing four big shots and three pieces of waddings was sent to S. P. , G. R. P. , Lucknow. According to Dr. A. Akram (P. W. 4) the death of Sheo Narain was caused due to shock and haemorrhage as a result of injuries. One sealed envelop containing four big shots and three pieces of waddings was sent to S. P. , G. R. P. , Lucknow. Ante-mortem injuries: Sheobalak: (1) Gun-shot wound (entrance) 2" x 3/4" chest cavity deep on the left side of the back 1/2" away from the midline 1" below the lower of the left shoulder blade directed downwards and forward. Margins inverted, blackening and tattooing present. (2) Gun-shot wound (exit) three in numbers each 1/2" x l/4"x chest cavity deep on the middle of lower end of the chest below the chest bone. No blackening and tattooing. Margins inverted, coming with injury No. 1. (3) Abrasion 1 1/2" ^ 1/4" on the back of the right forearm 2" below the elbow joint caused with scabs. On the internal examination Dr. A. Akram (P. W. 4) found that 4th and 5th ribs on left side were fractured. The left side of pleura was having multiple holes. The left lung had big hole with big shot and three pieces of waddings. The left chest cavity was cut off. Dr. A. Akram (P. W. 4) sent one sealed envelop containing one big shot and three pieces of wadding recovered from the body of Sheo Balak to S. P. , G. R. P, Lucknow. 9. The prosecution examined P. W. 1 Murli Prasad and P. W. 2 Pahelwan Singh to prove the factum of occurrence. Other persons viz. Raj Narain, Shanker and Raja Ram who were also present in the com partment and had allegedly witnessed the occurrence -ere not examined to prove the case. According to the F. l. R. the occur rence had taken place in presence of the abovenoted live persons as well as many others sitting in the compartment. How ever, in the statement on oath P. Ws. 1 and 2 stated that other persons had already got down from the compartment before the ill-fated happening. They simply alleged that Raj Narain, Shankar and Raja Ram were the only persons in the compartment besides P. W. 1 and P. W. 2. Before the Inves tigating Officer they had stated that all the persons including themselves had chal lenged the miscreants. They simply alleged that Raj Narain, Shankar and Raja Ram were the only persons in the compartment besides P. W. 1 and P. W. 2. Before the Inves tigating Officer they had stated that all the persons including themselves had chal lenged the miscreants. Now that case of challenging the miscreants, raising alarm and presence of various other persons was given up in the evidence of these P. Ws. 1 and 2. Instead it was stated that miscreants were not challenged nor alarm was raised nor other passengers were present in the compartment. The I. O. had stated other wise about these statements. The enmity of P. W. 1 Murli Prasad and his brothers in an admitted and a proved fact. There was litigation of the aggrieved parties with some of the appellants as mentioned above. Due to litigation in consolidation Courts and in revenue Courts; and with other two persons due to election of Pradhan. In the same manner P. W. 2 Pahelwan Singh had also enmity with some of the accused and further he has also been al leged to be a man of the side and group of P. W. 1 Murli Prasad and is also inimical to the appellants. This fact has been brought on record by means of suggestions to P. W. 2 and by filing documentary evidence from the judicial records as well as from the carbon copies of the reports lodged with the police. This combined enmity of P. W. 1 and P. W. 2 has been shown in the following papers. Ext. Ka. 1 is the report with the police under Sections 504, 506 I. P. C. , dated 8-12-1976 by Murli Prasad against Guljari and Ram Chandra appellants. Ext. Kha. 3 is the criminal case under Section 323 I. P. C. in between Pahelwan Singh P. W. 2 and Raj Narain appellant. Ext. Kha. 4 is the copy of judgment in a case under Section 209 Z. A. Act in between Ramu and Man-goo. In this case Pahelwan Singh P. W. 2 had appeared as a witness on behalf of Ramu whereas the appellant Mansa Ram and the appellant Raj Narain had appeared from the opposite side Mango and other. Ext. Kha. 5 is another copy of judgment in between Bhawani and others and Murli and others, but this paper has not been very well connected. Ext. Kha. Ext. Kha. 5 is another copy of judgment in between Bhawani and others and Murli and others, but this paper has not been very well connected. Ext. Kha. 6 is the original carbon copy - F. I. R. lodged by Mansa Ram appellant against Pahelwan Singh P. W. 2 and others under Sections 506 and 504 I. P. C. Ext. Kha. 7 is the copy of the judgment in the case in between Baldev and others and Raj Narain Singh and others. Raj Narain Singh had not been produced in the witness box although he was named as a witness in the F. I. R. Ext. Kha. 10 is also a copy of F. I. R. but this is not elegible. So there was enmity in between the parties as well as in between the appel lants and Pahelwan Singh and Pahelwan Singh was also a witness from the other side when one of appellant was a witness from another side. P. W. 2 Pahalwan Singh was asked about these F. I. R. and cases etc. but he gave evasive replies. P. W. 2 Pahel wan Singh knowingly avoided to give replies to the questions which proved his favourtism with P. W. 1 and his opposition and enmity with some of the accused per sons. P. W. 2 Pahelwan Singh stands belied by the aforementioned documents. These documents clearly proved that he is a par tisan witness. P. W. 1 admittedly had enmity with the accused persons. He is also an interested witness, both these P. Ws al leged themselves to be travelling in the 4 B. C. train. They were chance witness. Both the witnesses being inimical, interest and partisan, hence their presence in the com partment of the train, in which the occur rence took place, and the lime of the occur rence was strongly disputed on behalf of the appellants in the evidence as well as during the arguments. Here it may also be mentioned that Shco Narain deceased was having enmity with other persons as well, as he had earlier been acquitted in a mur der case in respect of the murder of one Sukh Pal Singh, in which he had also been alleged to have sexual intercourse with the wife of one Daya Ram Pasi vide judgment and order Ext. Kha. 2. It is well-known and well said that enmity is a double edged weapon. Kha. 2. It is well-known and well said that enmity is a double edged weapon. The main point in this case to be scrutinised is the presence of these two interested persons in the compartment. The defence has been that these two per sons were not at all present in the compart ment at the time of the occurrence and they were brought in the F. I. R. by the police later on and that the F. I. R. was ante- timed. 10. The story of the prosecution is that P. W. 1, the informant, who is the real brother of the deceased persons was returning back from Unnao after attend ing the revenue case in the Court of the S. D. O. He was allegedly returning to his village Mawai via Safipur. The train reaches Safipur and not to village Mawai Lal. From the town Safipur the passengers have to travel three miles on foot to reach the village. P. W. 1 says that his two deceased brothers had also accompanied him to the Court on that date and were returning back from there and were travelling by that train. P. W. 2 Pahelwan Singh says that he had also gone to Unnao to purchase some bolls for his machinery etc. P. W. 1 Murli Prasad says that he was not attacked or assaulted or even threatened by the appellants etc. The nature of enmity and litigations in between the parties was similar and the same with all the three brothers. P. W. 1 says that he had hid and concealed himself under the seat of the compartment. According to the evidence of P. W. 1 and P. W. 2 there remained only seven persons in the compartment at the time of occurrence. These were P. Ws. 1 and 2, the two deceased and three persons Raj Narain and Raja Ram. According to the F. I. R. and the statement made before the I. O. under Section 161 Cr. P. C. there were many other persons in the compartment who had challenged the alleged miscreants and had also cried. According to P. Ws. 1 and 2 the other passengers had got down at Methi Tikur Railway Station and it were only these seven persons who had remained in that bogie of occurrence. P. C. there were many other persons in the compartment who had challenged the alleged miscreants and had also cried. According to P. Ws. 1 and 2 the other passengers had got down at Methi Tikur Railway Station and it were only these seven persons who had remained in that bogie of occurrence. The appellants alongwith one unidentified person had entered into the compartment after the train had left Methi Tikur Rail way and the train had stopped after a while. The hiding and the concealment by P. W. 1 in that vacant compartment (or in a com partment where there were other pas sengers also) in presence and in view of five assailants (while the informant P. W. 1 was also sitting in the nearby seat) was very much attacked by the defence. The sparing of P. W. 1 from the attack as a result of this hiding was also rightly attacked on behalf of the defence. If P. W. 1 Murli Prasad had been there in the compartment then he would not have been able to conceal his Eresence and would not have been able to ide himself in the compartment under one seat. The theory of concealing or hiding by P. W. 1 appears to be not prob able. The assailants had enmity with Murli Prasad also. They were five in number and all were armed with pistols and they had come in the compartment after the train had stopped, and P. W. 1 was also sitting there then it was but natural that they However, it was the conduct of the as sailants as to whom they attack or whom they do not attack. But the natural conduct would have been not to ignore the 3rd prime enemy. They would have not ig nored him at all. The story of the prosecu tion is that all three brothers had gone to Unnao on that day to attend to the date in the revenue case. The appellants have al leged that it were only the two deceased who had gone to Unnao on that day. If P. W. 1 had been present in the compartment, where there was a very thin number of passengers, then it was not possible for P. W. 1 to have had hide himself under a seat. The miscreants would have certainly threatened him, if had not shot him. If P. W. 1 had been present in the compartment, where there was a very thin number of passengers, then it was not possible for P. W. 1 to have had hide himself under a seat. The miscreants would have certainly threatened him, if had not shot him. In a compartment where there were only seven passengers it was very easy for the miscreants at least to have threatened P. W. 1. Moreover there is contradiction of P. W. 1 and P. W. 2with their earlier statements in the F. I. R. as well as under Section 161 Cr. P. C. with respect to the other passengers present in that compartment at that time as well as their challenge to the miscreants and their raising cries of alarm. These minor things become important in this case because the story of hiding and the miscreants not threatening P. W 1 is highly suspicious and improbable. Both these witnesses were interested in implicating the miscreants falsely also. It would be relevant here to mention that both these witnesses did not at all make any com plaint either verbal or written to any of the officials of the Railways either at the time of occurrence or at the Railway Station Safipur. The compartment of the yard was very much near to the compartment of occurrence. According to prosecution case the train had immediately come to a halt on the spot. On reaching Safipur also the Railway employees including the Sta tion Master were not told anything about the occurrence by P. W 1 or P. W. 2. P. W. 1 stated on oath that after the halting of the train at the Railway Station Safipur he left for Safipur police station and lodged the F. I. R. (Ext. Ka. 2) at 18. 15 hours there. This appears to be quite unnatural as to why P. W. 1 did not inform the railway offi cials at any time about the incident. It may be the unnatural to the natural conduct of the culprits to start one of their enemies and to attack only the two out of three, the conduct of P. W. 1 & P. W. 2 is certainly highly improbable and unnatural. P. W. 1 did not retain his fare ticket and says that he had handed it over to the ticket collec tor while going out of Railway Station. P. W. 1 did not retain his fare ticket and says that he had handed it over to the ticket collec tor while going out of Railway Station. P. W. 2 Pahelwan Singh similarly did not retain his ticket. The case of Pahelwan Singhs (P. W. 2) going to Safipur on that day also appears to be a got up one as he could not satisfactorily reply to the ques tions asked on the ground. These cir cumstances show that the presence of these two persons on the spot was highly doubtful. It was argued on behalf of the prosecution that these circumstances in the case are insufficient to hold the ab sence of these two persons on the spot. The argument has got no force because when these circumstances are read with other circumstances of the case then it would go to show that these persons were not present at all in the compartment of occur rence. They appeared to have been made available later on from the village to lodge an ante-timed F. I. R. The Investigation was over enthusiastic in cooking up the case and in getting theappellant named in the F. I. R. 11. The defence has not disputed the place or the time ofoccurr ce. They have also not disputed the fact that the two persons were murdered due to fire-arm ante-mortem gun-shot wounds fired from a close range as has been given in the post mortem report. 12. It may be mentioned here that 5th accused Udaibir was acquitted by the learned trial Court on the ground, inter alia, that the factum of recovery of empty cartridges appeared to have been manipu lated later on and inserted in Ext. Ka. 28 and 32 (the inquest reports of the two deceased), and that the "prosecution had failed to prove by cogent and reliable evidence that any empty cartridge was recovered from the spot and was fired from the pistol (Ext. Ka. 4) recovered from ac cused Udaibir Singh. The evidence and identification of Udaibir was also a reason of his acquittal. 13. The inquest reports of the two dead-bodies were prepared on 30-10-1977, and this recovery of empty cartridges, etc. was inserted by a different ink later on in these reports. Accordingly recovery memos (Ext. Ka. 37) (about recovery of licence of gun from the clothes of Sheo Narain), two railway tickets and Rs. 4. 13. The inquest reports of the two dead-bodies were prepared on 30-10-1977, and this recovery of empty cartridges, etc. was inserted by a different ink later on in these reports. Accordingly recovery memos (Ext. Ka. 37) (about recovery of licence of gun from the clothes of Sheo Narain), two railway tickets and Rs. 4. 50 from Sheo Balak; and Ext. Ka. 39 (3 empty cartridges, 3 bi/g pellets, 5 wads), were prepared on 30-10-1977 at the time of preparation of inquest reports (Ext. Ka. 28 and 32) by P. W. 11 Raja Singh, S. O. , G. R. P. , Unnao, Investigating Officer Le. To say that these things were recovered from the dead bodies and from near the "dead-bodies from the compartment on 30-10-1977 by P. W. 11, and definitely not on 29- 10-1977 by P. W. 6 Ram Asrey Singh, S. O. , P. S. Safipur, P. W 4 Dr. A. Akram (who had conducted and proved the autopsy) stated on oath that copy of F. I. R. was not placed before him when the papers were brought before him alongwith the two dead-bodies. The copy of the F. I. R. was thus not sent to the Doctor with dead bodies. This means that the copy of F. I. R. was not available with the prosecution on 30-10-1977 when the dead-bodies were dispatched from the Railway Yard to the mortuary. It can be safely said that the F. I. R. must not have been in existence even up to 30-10-1977 as the case was under preparation. P. W. 6 R. A. Singh, S. O. , P. S. Safipur says that when he reached Safipur Railway Station at 6. 25 p. m. he did not touch the dead-bodies and did not make a search of the dead- bodies or the compartment. And that he did not take out the railway tickets from the clothes of the dead- bodies, and he did not take into his possession anything from there. He says that no Doctor came to the Railway Station or in the bogie. He had informed S. O. , G. R. P. at 6. 30 p. m. on telephone and S. O. , G. R. P. came to the Station at 8. 30 p. m. on the same evening viz. on 29-10-1977 P. W 5 Jageshwar Singh, Head Moharrir took down the F. I. R. at 6. He had informed S. O. , G. R. P. at 6. 30 p. m. on telephone and S. O. , G. R. P. came to the Station at 8. 30 p. m. on the same evening viz. on 29-10-1977 P. W 5 Jageshwar Singh, Head Moharrir took down the F. I. R. at 6. 15 p. m. on 29-10-1977. Papers had been received at P. S. G. R. P. Unnao on 29-10-1977 at 9 p. m. from P. S. Safipur, according to P. W. 8 R. J. Yadav, Head Constable, and a case was registered. P. W. 1 says that he had received the information on telephone at 6. 45 p. m. from P. W. 6 about the named F. I. R. (G. D. Ext. Ka. 27) and that he had reached the compartment at 8. 30 p. m. , and that the S. O. , Safipur was also found present there at the Station in the bogie and had met him. P. W. 11 Raja Singh says that he did not do anything on 29-10-1977 towards the preparation of inquest reports as there was no sufficient source of light, he further says that he prepared the inquest reports and recovery memos etc. the next day on 30-10-1977, and also effected the recovery of the articles from the dead bodies and from the places near the dead bodies from inside the bogie. It may be repeated that this recovery (on 30-11-1977) was discarded by the trial Court also while acquitting Udaibir accused. It was rightly discarded on various grounds men tioned in the judgment. But the learned Sessions J udge should have advanced a few steps further and should have taken this false recovery of the empty cartridges to its logical end not merely to hold Udaibirnot guilty but to hold that F. I. R. was ante-timed; and P. W. 1 was brought in later on for the purposes of naming the accused, although he was not present on the spot in the compartment at the time of occur rence. For this the learned Sessions Judge ought to have looked into the evidence of the Station Master also, in the light of statement of the witness of fact (P. W. 2) that he had seen. no empties etc. near the dead-bodies. 14. For this the learned Sessions Judge ought to have looked into the evidence of the Station Master also, in the light of statement of the witness of fact (P. W. 2) that he had seen. no empties etc. near the dead-bodies. 14. P. W. 9 B. R. Vaish, Station Master, Safipur stated on oath that the Station Diary is kept in Railway Station to main tain to record of happenings in the trains and the Stations. Every proceedings is recorded in this Station Diary which is maintained in routine in the usual course of business of the Railways according to specific date and times. He proved the entry from this register which is entry num ber 20 (Ext. Kha. 1 dated 29-10-1977 ). He also admitted on oath the facts mentioned in this Station Diary in detail. It would be relevant to quote this entry (Ext. Kha. 1) verbatim: "4. B. C. U. P. Passenger arrived at 17. 50 Gd. of the train Shri. Y. C. Misra gave a memo at 17/55 hrs. that the train (4 BC) stopped at K. M. 21/7 due to hose pipe disconnected at 17/30 hrs. between Lontapur and Gopalpur. Two mens (Passengers) had been shot dead and five men ran away with gun towards south side from bogie No. 8961 OS. " "on gelling the memo of guard of 4 BCI Iried to conlaci civil police and A. M. O. Safipur on local telephone, bul in vain. " "then a mano was sent to police and A. M. O. /safipur through Token Porler Neel Kanih al 18/- in the meanlirne Controller Shri R. K. Misra was informed accordingly. A memo was also sent to R. P. F. Safipur for information and escorting the compartment. " "s. O. Safipur and A. M. O. /safipur both arrived by jeep at 18/30 hrs. The bogie in ques tion No. 8961 GS was 2nd from Gds brake and 7th from engine; S. O. /& A-M. O. /safipur entered the said compartment. Police searched and found some papers from the dead person and two tickets No. 19857 and 19858 Hx Unnao to Safipur. The tickets in the custody of S. O. /civi!. " "after enquiry made by police the bogie was detached in goods shed from 1900 hrs.-19/15 hrs. Police searched and found some papers from the dead person and two tickets No. 19857 and 19858 Hx Unnao to Safipur. The tickets in the custody of S. O. /civi!. " "after enquiry made by police the bogie was detached in goods shed from 1900 hrs.-19/15 hrs. " "the statement of the staff i. e. Guard, driver, Fireman and T. T. E. were taken by S. O. Civil Police upto 19/40 and permission to start the train was received. The train started at 19/50 hrs. (Sd.) B. R. Vaish, Station Master. Safipur, 29-10-1977". 15. P. W. 11 Raja Singh, S. O. G. R. P. , I. O. , also proved material Ext. XXX, dated 29-10-1977 at 18. 20 hrs. which was ad dressed to S. O. , G. R. P. , sent by Station Master, Safipur. P. W. 11 had copied out this massage in his Case Diary on that very day. Not only this in Ext. Ka. 27 also it has been mentioned at G. D. No. 35 dated 29-10-1977 of 18. 45 hrs. though a memo per taining to this incident had also been received from the A. S. M. Shri K. K. As-thana on duty informing that this informa tion had been sent by Station Master, Safipur. The I. O. P. W. 11 has also stated that this paper Ext. XXX was given to him by Ganga Prasad, Porter of Railway Sta tion, Unnao when he had been talking to Ram Asrey Singh, S. O. Safipur from the office of A. S. M. , Unnao. He admits that Ext. XXX is addressed to S. O. , G. R. P. , Unnao and appears to have been sent by Station Master, Safipur and signed by K. K. Asthana (A. S. M. ). He says that wireless of S. O. Safipur was received at G. R. P. , Unnao. P. W. 8 R. J. Yadav proved Ext. Ka. 27 to have been received. He stated on oath that this Ext. XXX has been mentioned in the G. D. (Ext. Ka. 27 ). When it was men tioned in the G. D. itself and when it was copied out in the C. D. then the observa tion of the learned Sessions Judge that Ext. XXX is not proved is wrong. The observa tion of the learned Sessions Judge, "paper Ext. XXX has been mentioned in the G. D. (Ext. Ka. 27 ). When it was men tioned in the G. D. itself and when it was copied out in the C. D. then the observa tion of the learned Sessions Judge that Ext. XXX is not proved is wrong. The observa tion of the learned Sessions Judge, "paper Ext. XXX and its contents which are not proved at all is of consequence" is ab solutely wrong. The learned trial Court observed that this memo Ext. XXX can not be utilised because this document had not been proved according to law. This obser vation is totally wrong in view of clear admission of P. W. 8 and P. W. 11 as well as Ext. Ka. 27. This material Ext. XXX reads as fol lows: "29. 10 - 18/20 S. O. G. R. P. /un. " "4 BC train stopped after disconnecting hose pipe of Bogie No. GS NR 8961 at Km. 21/7 bet. Makhi and Safipur and about five persons fired on two passengers injuring them seriously snatched away their gun and ran away. Condi tion of passengers is serious attend for necessary action. S. M. Safipur, K. K. Asthana. " 16. It has been pointed out above that P. W. 11 admits that this paper was given to him. This is also admitted by P. W. 1 to be a wireless message on a proper proforma. This has also been sufficiently proved by Ext. Ka. 27 and P. W. 8, P. W. 9 B. R. Vaish, Station Master, Safipur had tried to evade direct reply about this paper but in view of this statement of P. W. 8 and P. W. 11 and Ext. Ka. 27 this paper stands sufficiently proved. There was a purpose in suppress ing this paper which was brought as a material Ext. in the cross-examination of the P. Ws. This paper is limed as 18. 20 hrs. viz. 6. 20 p. m. In this "about 5 persons re alleged to have opened fire. " Then two persons have been shown to be injured persons and none of them had died. This refers to disconnection of hose pipe also. This wireless given by the, A. S. M. , K. K. Asthana from Safipur is timed as 18. 20 hrs. viz. 6. " Then two persons have been shown to be injured persons and none of them had died. This refers to disconnection of hose pipe also. This wireless given by the, A. S. M. , K. K. Asthana from Safipur is timed as 18. 20 hrs. viz. 6. 20 p. m. This does not mention the names either of the deceased or the alleged assailants or the informant or the wit nesses. 17. Ext. Ka. 21 is the information of guard of 4 BC train who also mentioned that at about 17. 30 hrs. hose pipe was disconnected at 21/7 km. and 2 persons were shot at and five persons ran away with a gun. Thar he had informed immediately. It is addressed to Station Master Safipur and is dated 29-10- 1977, but there is clear over writing on the figure 9 of the date 29-10-1977. 18. Then there is Ext. Ka. 22 sent by Station Master, Safipur to S. O. Safipur on the basis of Ext. Ka. 21 (this is material Ext. 13 also ). 19. These all documents taken together show that as soon as the shooting incident look place information of the two person having been injured was communi cated to S. O. , G. R. P. and the Station Master. It also shows that actually hose pipe was disconnected first when the bogie had come to a halt and the train had stopped. The P. Ws. on the factum of occur rence totally missed the factum of discon nection of the hose pipe. These papers shows that P. W. 1 Murli Prasad was not there at all and was not found any where. He did not, therefore, contact any one at the Railway Station, Safipur or any employee (guard) at the train. No body informed anyone about the incident having been seen or having been com mitted by named persons. Interestingly, S. O. Safipur Ram Asrey Singh (P. W. 6) denies to have made any search of the dead bodies or the compartment or the recovery of articles from the dead bodies or from the compartment. But the Station Master, staled on oalh as well as corroborated his stalemenl from his Case Diary entry No. 20 (Ext. Kha. Interestingly, S. O. Safipur Ram Asrey Singh (P. W. 6) denies to have made any search of the dead bodies or the compartment or the recovery of articles from the dead bodies or from the compartment. But the Station Master, staled on oalh as well as corroborated his stalemenl from his Case Diary entry No. 20 (Ext. Kha. 1) that the S. O. , Safipur had not only made a search of the dead bodies and the compartment but he had also taken away the articles so recovered on 29-10- 1977 itself. And had also taken down the stalemenls of various passengers ek. ek. Whereas P. W. 11 S. O. , G. R. P. says that it was he who had searched the dead-bodies and the compartment on 30-10-1977 and he corroborates his version from the inser tion of this recovery mentioned some time later on in the two inquest reports as well as by the preparation of recovery memos. This clearly shows that a case was prepared later on and it was not dealt with in a natural course. It has been mentioned above that while sending the dead-bodies for autopsy F. I. R. was not at all sent to the Doctor. No details of papers were given in the inquest reports and it has also been mentioned above that the F. I. R. must not be existing on 30-10-1977. The Parchas were sent to the CO. on 21-11-1977 which were dated by the CO. on 4-11- 1977. Then there comes material Ext. XXX. P. W. 11 comes and shows the recovery of many things from the dead-bodies on 30-11-1977 whereas everything had been done on 29-10-1977 by P. W. 6. The trial Court right ly found that insertions and manipulations had been made later on in the two inquest reports. The trial Court found these inser tions fabricated. When everything had been taken away by P. W. 6, S. O. , Safipur from the spot on 29-10-1977 itself, and many passengers had been examined by him then what was left for P. W. 11 to be shown in Ihc inquest reports and recovery memos. The recovery memos were, there fore, fabricated later on when the entire case was prepared. This indicates the preparation of the F. I. R. also later on. The recovery memos were, there fore, fabricated later on when the entire case was prepared. This indicates the preparation of the F. I. R. also later on. Instead of informing the railways on the spot or at the Railway Station P. W. 1 went to the town to lodge the F. I. R. and the police projected P. W. 1 by sending him to P. S. Safipur. The above things indicate that P. Ws. 1 and 2 were not present on the spot or nobody knew the persons responsible for the occurrence. The story of hose pipe disconnection was totally ignored by the informant. The Doctor (A. M. O.) was in formed by the Station Master Safipur when the S. O. was informed. It is stated on oath, and it is also mentioned in Ext. Ka. 1, by the Station Master that the Medical Officer had also come and had visited the compartment and the alongwith him the S. O. was also there. The oral testimony of the Station Master is corroborated from the record of the railways which is not under challenge at all. It has also been mentioned above that the witnesses had not seen the empty cartridges on the spot in the compartment of the train. These were shown to have been recovered from the spot. If the witnesses had been present on the spot of occurrence in the train at the time of occurrence then they would have certainly seen these articles empty cartridges etc. near the dead bodies but since they were not present therefore they did not find these things on the spot. It has also been mentioned above that there are material improvements with respect to non- presence of the other passengers and regarding to not raising of the alarm or raising of the cries. Under these circumstances when the two P. Ws. appeared to be interested and partisan then other witnesses who were admittedly present on the spot should have been produced by the prosecution to prove the case. These are Raj Narain Shanker and Raja Ram. None of these persons were produced. In order to avoid the production of any other persons it was later on men tioned in the evidence that no other per sons was present in the compartment. 20. These are Raj Narain Shanker and Raja Ram. None of these persons were produced. In order to avoid the production of any other persons it was later on men tioned in the evidence that no other per sons was present in the compartment. 20. When the A. S. M. had reported the matter and persons were not dead then the entire story of the prosecution comes within clouds. Learned Counsel for the defendants doubted the originality of Ext. Ka. 21 and Ka. 22 because this does not support the entry in the Station diary. 21. It was argues before the trial Court that in Ext. Kha. 1 the names of the persons responsible for the occurrence or the persons who had seen the occurrence were not at all mentioned. An inference was sought to be drawn by the learned Counsel to the effect that actually the as sailants were not actually known. If P. W. 1 and P. W. 2 had been present on the spot then they would have certainly done some thing in order to inform the Railway authorities. The Railway Authorities themselves could have found out from the licence of the gun, in the pocket of one of the deceased, the name of the deceased. As to why the presence of A. M. O. (Medical Officer) was being suppressed is obvious. The Station Master had called the Medical Officer because of the injured having not died. P. W. 1 says that the two had died before the F. I. R. was lodged. Not only that the Medical Officer was called but the Medical Officer had also seen the dead bodies inside the compartment. P. W. 1 Murli Prasad stated that occurrence took place at 5. 45 p. m. but later on he corrected himself and stated that it occurred at 5. 30 p. m. because the train had reached at 5. 45 p. m. This shows that he was not also sure of the time of occurrence and was trying to reconcile it with the time of occurrence. Both P. Ws. stated that the culprits had attachies with them but in the F. I. R. P. W. 1 had mentioned these not to be attachies but bags fixed with chains. After the inci dent no chain was pulled up by P. W. 1 or P. W. 2 in order to stop the train. 22. Both P. Ws. stated that the culprits had attachies with them but in the F. I. R. P. W. 1 had mentioned these not to be attachies but bags fixed with chains. After the inci dent no chain was pulled up by P. W. 1 or P. W. 2 in order to stop the train. 22. From the above facts and cir cumstances it appears that P. W. 1 and P. W. 2 were not present in the compartment of occurrence at the time of occurrence and the F. I. R. was got written later on and papers were also got prepared later on. The suggestions of the defence that some unknown persons had committed the mur ders appears to carry force. The three sets of the appellants have no community of interest. They have separate enmities and not a common enmity. Raj Narain has different reasons to be inimical. Mansa Ram has also quite a different one; and Gulzari and Ram Chandra have 3rd reason to be inimical. And all these persons could also be falsely implicated for different reasons by P. W. 1 and by P. W. 2. Had these persons been present on the spot then the above noted papers would have certainly indicated the name of the deceased at least, if not the names of the witnesses. From the guard to Station Master none was told anything and no paper contains the name of the deceased or the alleged witness. The silence of the above noted documents of the railways makes the presence of P. W. 1 and P. W. 2 on the spot highly doubtful and improbable. The manner of occurrence particularly the theory of hiding of P. W. 1 under a seat is an unbelievable thing in view of the circumstances of the story of occurrence. The pellets and cartridges shells etc. having not been seen by the P. Ws. also shows that the story of presence of P. W. 1 and P. W. 2 deserves to be thrown out. No efforts appear to have been made to recover licensed gun allegedly taken away by the miscreants from the posses sion of the deceased. It so appears that only the deceased person had gone to Unnao to attend to the Court and Murli Prasad P. W 1 was not accompanying them. No efforts appear to have been made to recover licensed gun allegedly taken away by the miscreants from the posses sion of the deceased. It so appears that only the deceased person had gone to Unnao to attend to the Court and Murli Prasad P. W 1 was not accompanying them. The reason of P. W. 2 having gone to Unnao and return ing back appears to be a got up reason. The persons who could be independent and were available in the train were not at all examined. 23. The learned trial Court should have gone into these aspects of the matter and should have held that P. W 1 and P. W 2 had not seen the occurrence and were not present at the time of occurrence. The prosecution had failed to prove the case against the accused persons. The trial Court wrongly held the appellants guilty and wrongly sentenced them. Udaibir co-accused had been acquitted on the ground of tainted investigation and fabricated in quest reports, and the F. I. R. had not been sent alongwith the dead-bodies to the Doctor, then the learned Sessions Judge should have also extended the benefit to the appellants also of this fabricated inves tigation. In viewof the circumstances men tioned above it can safely be said that the prosecution had badly failed to prove the case against the appellants as well. The learned trial Court should have, therefore, acquitted the appellants also alongwith Udaibir. The appellants are not found guilty of the charges framed against them and they are entitled to acquittal. The ap peals have got force and shall be allowed and the appellants shall be acquitted. Ap peal No. 243 of \919mansa Ram v. State and Appeal No. 248 of 1979, Raj Narain Shukla v. State" are allowed. The convic tion and sentence passed by the learned trial Court against the appellants are set aside. The appellants are acquitted of all the charges. The appellants are on bail their bonds are cancelled and sureties are discharged and they need to surrender to their bail bonds. Appeal allowed. .