S. K. AGARWAL, J. ( 1 ) THESE two Criminal Appeals No. 1799 of 1980 and 2022 of 1980 arise out of a common judgment and order dated 14-8-1980 passed by Sri B. B. Singh, v. Additional Sessions Judge, Allahabad, in S. T. No. 326 of 1978. Appellant Dulare Pasi in Criminal Appeal No. 1799 of 1980 was convicted under Sec. 302/109, I. P. C. and appellant Sheo Mohan Pasi in Criminal Appeal No. 2022 of 1980 was convicted under Sec. 302, I. P. C. Both of them were sentenced to life imprisonment. ( 2 ) THE case of the prosecution, in short, is that a civil suit was pending between the parties over the demolition of unauthorised construction raised over the impugned land. Both the parties were asserting their possession. That suit was decreed against the appellants. The decree was also got satisfied by demolition of the unauthorised construction with the help on police on 17-7-1976 by Chhedi Lal and his brother Rameshwar. Serious cracks in the relation between the parties due to the said litigation developed on 2-4-1978 to help the deceased in his thrashing work P. W. 1 Jawahar Lal, a resident of village Osa, with his oxen and P. W. 2 Raja Ram, a relation of the deceased, had come to his house. After finishing the days work Jawahar Lal and Raja Ram took their dinner and left for Khalihar along with deceased Chhedi Lal. Chhedi Lal was also holding a burning lantern. At about 7. 30 P. M. when they arrived near the culvert, both the appellants, who were sitting there, accosted them. On the instigation of appellant Dulare Pasi, appellant Sheo Mohan Pasi fired a single shot from his country made pistol upon Chhedi Lal, who tried to run away. The injuries were caused on his back. As a result of these injuries, Chhedi Lal died instantly. The alarm raised by P. W. 1 Jawahar Lal and P. W. 2 Raja Ram attracted many others and the assailants, in the meantime, took to their heels. A written report (Ext.-Ka1) was prepared by P. W. 1 Jawahar Lal on the spot and leaving the dead body of Chhedi Lal, in the care of the villagers, he went to the Police Station Manjhanpur. The report was lodged at the above said police station at about 10. A written report (Ext.-Ka1) was prepared by P. W. 1 Jawahar Lal on the spot and leaving the dead body of Chhedi Lal, in the care of the villagers, he went to the Police Station Manjhanpur. The report was lodged at the above said police station at about 10. 00 P. M. on the same night, i. e. on 2-4-1978 and a case got registered as Crime No. 76 under Sec. 302, I. P. C. , against both the appellants. ( 3 ) THE investigation of the case was initially handled by P. W. 5 D. P. Singh, S. O. , Manjhanpur. He prepared the inquest memo on 3-4-1978 between 7. 00 and 10. 00 A. M. and sent the dead body for post-mortem examination. On 4-4-1978 P. W. 6 S. O. Kaptan Singh took over the investigation from P. W. 5 D. P. Singh and submitted charge-sheet (Ext. Ka-11) against both the appellants on 14-4-1978. ( 4 ) THE autopsy on the body of the deceased Chhedi Lal was conducted by Dr. A. K. Bajaj on 4-4-1978 at 3. 25 P. M. ( 5 ) BOTH the appellants pleaded not guilty to the prosecution case and claimed to be tried. Appellant Dulare Pasi further contended that the civil case instituted by Rameshwar and Chhedi Lal had resulted into a compromise and there was no enmity, inter se, them. Appellant Sheo Mohan has stated that son of deceased Chhedi Lal was hostile to him. They also contended that none of the two witnesses was present in the village on the date of occurrence. They had further stated that P. W. 1 Jawahar Lal was hostile to them due to lodging of a named report against his father Ganga Prasad in a case of dacoity by them. ( 6 ) THE prosecution, in support of its case, has examined P. W. 1 Jawahar Lal and P. W. 2 Raja Ram. Apart from them P. W. 3 Shiva Nand Singh, Constable Clerk, was examined to prove the check report and other papers pertaining to registration of the case. Nand Ram Tewari, Constable, is P. W. 4. He had escorted the dead body from the spot to the mortuary for post-mortem. P. W. 5 D. P. Singh is the first Investigating Officer, who had completed the formalities of the inquest and also collected blood stained earth and simple earth from the spot. Nand Ram Tewari, Constable, is P. W. 4. He had escorted the dead body from the spot to the mortuary for post-mortem. P. W. 5 D. P. Singh is the first Investigating Officer, who had completed the formalities of the inquest and also collected blood stained earth and simple earth from the spot. P. W. 6 Kaptan Singh is the second Investigating Officer. He submitted the charge sheet against the appellants. P. W. 7 Prabhu Dayal, X-Ray technician, has proved the post-mortem examination report, the hand writing and signatures of Dr. A. K. Bajaj. ( 7 ) WE have heard the learned counsel for the appellants and learned A. G. A. at length. ( 8 ) THE argument advanced before us by the learned counsel for the appellant is that none of the two eyewitnesses were present at the scene of occurrence. They are relatives of the deceased P. W. 1 Jawahar Lal is the first cousin of the deceased and P. W. 2 Raja Ram his own son. No independent witness has been examined despite the fact that presence of number of persons of the village at the spot is admitted. The F. I. R. is also challenged as anti-timed. The medical examination report does not corroborate the prosecution version with regard to the deceased and his other companions going back to Khalihan after taking the dinner. ( 9 ) WE propose to take up the issue of medical conflict. According to F. I. R. , which was lodged by P. W. 1 Jawahar Lal at 10. 00 P. M. at P. S. Manjhanpur, a clear picture was painted therein that he and the deceased alongwith were going back to Khalihan for sleeping there after taking their night meals. In his statement in paragraph 6 this witness has stated that in the evening at about 7. 30 P. M. they were returning to the Khalihan after taking their meals at the house of Chhedi Lal, but further modified his statement to the extent that he alone had taken his meal. Chhedi Lal had not joined him. He has further stated that Chhedi Lals son P. W. 2 Raja Ram had also taken his meal. This improvement in the statement of this witness is purposeful deliberate. Chhedi Lal had not joined him. He has further stated that Chhedi Lals son P. W. 2 Raja Ram had also taken his meal. This improvement in the statement of this witness is purposeful deliberate. This statement has been introduced by him only to reconcile the statement with the result of post-mortem examination wherein stomach and small intestines were found empty and the large intestine was found partially full. This cannot be the situation if both of them had taken meals, as alleged in the F. I. R. that both of them had started for the Khalihan after taking their meals. In cross-examination in paragraph 14 when he was put his statement made to the I. O. , he admitted that he had correctly written in the F. I. R. (Ext. Ka-1) that both of them had taken their meals. On being questioned by the Court he again stated that Chhedi Lal did not take his meals. Raja Ram accompanied him after taking his meals. In paragraph 15 he has stated that this fact was wrongly stated in the F. I. R. and admitted the omission in the F. I. R. that Chhedi Lal had not taken his meal till then. He was unable to explain it. Thus, it leaves no room for any doubt in our mind that this witness is deliberately stating now in the trial Court that Chhedi Lal had not taken his meal in order to make the prosecution case compatible with the medical evidence. ( 10 ) SO far as P. W. 2 Raja Ram is concerned, this witness in paragraph 8, in cross-examination, has stated that only Jawahar Lal (P. W. 1) had taken his food in the evening. His father did not take his food because he was having some pain in the abdomen. P. W. 1 Jawahar Lal has not given any such reason for deceased not taking his meal. In paragraph 12 also this witness has stated that Jawahar Lal had taken his night meal with him and they started for the Khalihan half an hour after taking of their meals. The food was taken 15 minutes after the sunset. ( 11 ) FROM the statement of these two witnesses it is apparent that they are trying hard to reconcile the conflict with medical evidence. They had improved upon their version adhered to in 161, Cr. The food was taken 15 minutes after the sunset. ( 11 ) FROM the statement of these two witnesses it is apparent that they are trying hard to reconcile the conflict with medical evidence. They had improved upon their version adhered to in 161, Cr. P. C. statements in accordance with F. I. R. The conflict goes a long way against the presence of these two eye witnesses at the relevant time. ( 12 ) THE next argument that both the witnesses are not only partisan but their presence at the spot, at the relevant time, is highly doubtful. We have to test the evidences of P. W. 1 and P. W. 2 both, when we test the statement of P. W. 1 Jawahar Lal, we find that in his F. I. R. he has very clearly stated that "aaj Sham Ko Apne Mausere Bhai Chhedi Ke Yahan Mai Ushar Gaur Me Aaye Tha. " This unambiguously means that he reached house of the deceased in the evening. But in paragraph 5 of his examination-in-chief he has stated that he had arrived at the house of the deceased along with his oxen between 9. 00 and 10. 00 in the morning. He had come for helping his first cousin in the thrashing of his crop. According to him, he stayed all along the day in the Khalihan. This part of his statement thus is contrary to his statement made in the F. I. R. When he was confronted with his F. I. R. on this part, he admitted that it was correctly written in the F. I. R. that he had come to the village Usar Gaura in the evening. He thereafter stated that he meant that he stayed in Usar Gaura during the afternoon. He denied that he had given out to the I. O. under Section 161, Cr. P. C. that he had reached his brothers (Chhedi Lals) place in the evening. He failed to offer any explanation for the same. He again stated that he had told the I. O. that he had come with his oxen to village Usar Gaura at Chhedi Lals place for thrashing his crop. P. C. that he had reached his brothers (Chhedi Lals) place in the evening. He failed to offer any explanation for the same. He again stated that he had told the I. O. that he had come with his oxen to village Usar Gaura at Chhedi Lals place for thrashing his crop. He showed his inability to offer any explanation for the absence of this fact in his statement to the I. O. He was further confronted about the omission of these facts in his F. I. R. that he came in the morning between 9. 00 and 10. 00 A. M. that he came for helping his brother in thrashing his crop. His explanation was that he cannot give any explanation about its absence in the F. I. R. He then admitted that he has not transcribed this fact in the F. I. R. because he himself had gone to the police station to lodge the report. Thus, from these facts and circumstances and the improvements made by this witness in his statement with regard to his presence in the morning instead of in the evening in the village concerned, we are not inclined to place any reliance on this witness. These are material improvements. This witness is closely related to the deceased. He is son of his mothers sister. In paragraph 22 this witness denied that any dacoity, at the house of Dulare, appellant, was committed on 3-6-1975. He further denied that Dulare, appellant, had lodged an F. I. R. at P. S. Manjhanpur against his brother Sheo Mangal, Chhedi, and Raja Ram son of Chhedi under Sec. 323/504/506, I. P. C. On 3-6-1975 he further denied that in that case the police had arrested his father Ganga. He denied that any report on 11-1-1975 was lodged by Dulare under Sec. 504/506, I. P. C. against his brother Sheo Mangal, Chhedi and Rameshwar at P. S. Manjhanpur. He admitted that a civil litigation was contested between Chhedi Lal, deceased, and Rameshwar and the appellants. He pleaded ignorance about the year in which it was contested. He admitted that in the civil litigation his brother Sheo Mangal and Rameshwar were doing pairvi. P. W. 2 Raja Ram has stated that for the last 10-12 days before the occurrence he was going to sleep in the Khalihan. Inderpal and Gayadin were also sleeping in the Khalihan. He pleaded ignorance about the year in which it was contested. He admitted that in the civil litigation his brother Sheo Mangal and Rameshwar were doing pairvi. P. W. 2 Raja Ram has stated that for the last 10-12 days before the occurrence he was going to sleep in the Khalihan. Inderpal and Gayadin were also sleeping in the Khalihan. Sarju and Vishal were also going to sleep in their Khalihan. He has also denied the fact that his father and Jawahar Lal had taken their meals but his father had taken nothing because of pain in his abdomen. He was thrown a suggestion that he was not living in the village, but was living at Kanpur. He has admitted that Devidin, Sardar, Bhaiya Lal and Sheo Mohan are his collaterals and are living in Kanpur. His own uncle Rameshwar is also living in Kanpur in Mohalla Laxmi Purwa. He has admitted that for the last 12-14 months he is living in Kanpur. He is selling Chhat on a handcart, denied. He has denied the suggestion that he is living in Kanpur for the last 13 years. He admitted that his father and his uncle Rameshwar had only 2-1/2 Bighas of land. He stated that Jawahar Lal had come to his house on the date of occurrence, but he had not stated when did he arrive in his village. Thus, from the evidence of this witness also this fact is apparent that the presence of Jawahar and this witness Raja Ram at the time of incident along with the deceased is a highly doubtful factum. They are interested witnesses. The enmity with the appellants is also admitted to them. ( 13 ) THE circumstance that they were not present is further fortified from the fact that the I. O. (P. W. 5) admittedly did not start any proceeding to further investigation after his arrival at the spot. According to the eyewitnesses (P. W. 1 and 2) the I. O. had arrived at the scene of occurrence at about 10. 00 P. M. The I. O. (P. W. 5) also admits that he was posted in the police station as Second Officer. The F. I. R. was transcribed in his presence at the police station and the investigation was handed over to him thereafter. He admitted that he started for the place of occurrence at about 10. 00 P. M. The I. O. (P. W. 5) also admits that he was posted in the police station as Second Officer. The F. I. R. was transcribed in his presence at the police station and the investigation was handed over to him thereafter. He admitted that he started for the place of occurrence at about 10. 00 P. M. and reached the spot at 11. 00 P. M. He further admitted that because of night he had not prepared the inquest memo. He prepared the inquest memo next morning and other formalities were also completed thereafter. He stated that he had recorded statement of Jawahar Lal in the night itself at about 10. 30 P. M. at the Police station. But P. W. 1 Jawahar Lal had contradicted him by stating that his statement was not recorded by the I. O. at the police station. He said that he handed over his written report to the Head Moharir and thereafter S. I. met him at the police station at about 9. 30 or 10. 00 P. M. and immediately left the police station on a cycle. He came on foot and after his return to the spot the I. O. recorded his statement at the culvert. His signatures were obtained on the inquest memo by the S. I. at about 11. 00/12. 00 in the night. To the same affect is the statement of P. W. 2 Raja Ram also. He stated that on the date of murder the I. O. came to the village at about 10. 00 P. M. He came to the spot. The I. O. did not interrogate him or made any enquiry from him. He also did not either interrogate or made any enquiry from Jawahar Lal. The I. O. stayed in the village whole of the night. Two constables , who accompanied this S. I. , also stayed with him. No investigation during that night proceeded. No memo about his lantern was prepared by the I. O. , although he had seen it in the night itself. These facts are sufficient to infer that these witnesses were not present at the spot either during evening or night. No body has seen the incident. No investigation during that night proceeded. No memo about his lantern was prepared by the I. O. , although he had seen it in the night itself. These facts are sufficient to infer that these witnesses were not present at the spot either during evening or night. No body has seen the incident. Some information was received by the police about the occurrence in the night and they reached the spot and waited for the arrival of Raja Ram and Jawahar Lal and after their arrival in the morning the F. I. R. was transcribed and the investigation proceeded thereafter. Initially the inquest memo was prepared and thereafter other formalities were completed. This is why there are discrepancies with regard to the arrival of Jawahar Lal in the version contained in the F. I. R. and 161 Cr. P. C. statement and his statement in Court. In the F. I. R. and 161, Cr. P. C. statement he claimed to have reached the village of occurrence in the evening, whereas in the trial Court he has stated that he reached the village of occurrence in the morning for thrashing the crop of his brother deceased Chhedi Lal. These circumstances when read together leave no room for any doubt that none of these witnesses were present at the spot. It is admitted to P. W. 1 in paragraph 32 that Parag, the Chaukidar, had also arrived 10-15 minutes after the incident. When all the people collected, necessary deliberations were held, then he decided to lodge the report. It took him an hour in these formalities. He transcribed the report at the culvert itself. Thus, the contradictions in the statement of the witnesses and the I. O. on the points of recording of their statements under Sec. 161, Cr. P. C. and also regarding preparation of the inquest memo cannot be ignored in evaluating the above said argument. ( 14 ) IT is admitted to the witnesses that the road leading to the Khalihan is just 15 steps from the house of Chhedi Lal. The Khalihan from the house of Chhedi Lal by road is 100 steps. By the side of the road Sadhus resident is there. Just 5-6 steps from the house of Chhedi is the house of Parag. The culvert is just 50 steps from the house of Chhedi. The Khalihan from the house of Chhedi Lal by road is 100 steps. By the side of the road Sadhus resident is there. Just 5-6 steps from the house of Chhedi is the house of Parag. The culvert is just 50 steps from the house of Chhedi. Chhedi attempted to run away, but he could not run at all because he was fired upon by Sheo Mohan from behind. A perusal of the post-mortem report shows that the firing in the case has been resorted to from the right of the deceased. The entry wound is upward, forward and towards right side. It is in the midline region at the level of 12th dorsal vertebra. The exit wound is on the right side chest. The wound had blackening and tatooing. This further shows that the shots were not fired from behind. The inquest memo shows no mention of any weapon. It further shows some overwriting on the date and also in the names of those who have taken the dead body to the mortuary. This Jawahar Lal son of Ganga, resident of village Osa, is also a witness of inquest. Along with the inquest memo copy of the G. D. had not been sent to the doctor. Instead of 8 papers only 7 papers were sent. These are further some circumstances that create serious doubt in the presence of these witnesses at the spot. Both these witnesses were most probably called from their houses. P. W. 1 village is only a mile from the village of occurrence. He reached sometime during the night and in the morning the F. I. R. appears to have been prepared in consultation with the police, which may had been called through the Chaukidar, whose presence is admitted to the prosecution within 10-15 minutes of the incident at the spot. P. W. 2 stated that it took him 10-15 minutes in reaching the culvert. As admitted to P. W. 1, culvert is only 50 yards from his house. It appears that the victim was going alone and on hearing the gunshot report people from the village had rushed to the spot and found Chhedi Lal lying dead. P. W. 2 has denied the fact that the culvert is 50 yards from his house. He has stated that the culvert is 100-125 steps from his house. It appears that the victim was going alone and on hearing the gunshot report people from the village had rushed to the spot and found Chhedi Lal lying dead. P. W. 2 has denied the fact that the culvert is 50 yards from his house. He has stated that the culvert is 100-125 steps from his house. Statement of P. W. 2 that he was living in the village and not at Kanpur at the relevant time also does not appeal to us. His admission that on his alarm Gayadin and Indrapal reached the scene of occurrence but by that time the assailants fled away. He told Gyadin and Indrapal that Dulare and Sheo Mohan, appellants, ran away after killing his father. But, surprisingly enough, none of these witnesses were examined during the trial by the prosecution. No explanation is available to us from the testimony of any of the witnesses including the I. O. why none else than these two related witnesses were examined. The two I. Os. had admitted that they have not recorded the statement of Gayadin. P. W. 5 has also not recorded the statement of the wife and daughter of the deceased. He claimed that Raja Ram met him for the first time during the day at the house of Chhedi Lal, deceased, on 3-4-1978 at about 11. 00 P. M. This is yet another circumstance, which led us to come to the conclusion that Raja Ram was not present on the day of occurrence but came to his village only during the morning hours. His statement was recorded in the second Parcha. The second Parcha reached the C. O. on 5-4-1978, as admitted by P. W. 5. In paragraph 14 I. O. (P. W. 5) had again admitted that Raja Ram had met him at the police station on 5-4-1978. He admitted that he had not examined the lantern of Raja Ram nor took it in its custody. His explanation is that he did not deem it necessary. He further admitted that the dead body left the village at about 10. 00 in the morning on 3-4-1978, but he was unable to mention about the vehicle on which it was sent. He admitted that the dead body was not taken away in his presence. His explanation is that he did not deem it necessary. He further admitted that the dead body left the village at about 10. 00 in the morning on 3-4-1978, but he was unable to mention about the vehicle on which it was sent. He admitted that the dead body was not taken away in his presence. He admitted that he has seen the Khalihan of the deceased, but no notes about it were made in the case diary. He did not enquire about the crop in his field. He admitted that he had not examined even the culvert nor the houses around it. he did not measure the distance between b and c nor noted it in the site plan. There is no mention in the site plan that the blood was recovered from spot b. He has admitted that he had arrested Dulare, appellant, just two furlongs from his house at Osa crossing at 1. 00 P. M. on 3-4-1978. If Dulare would have been an accused it would have been impossible for the I. O. to arrest him just two furlongs away from his house, when specially in the night he stayed in the village in search of the appellants. In such circumstances Dulare, appellant would not have been available to the I. O. in the village at all especially when he had nearly 3-1/2 hours after murder to run away. The I. O. had further admitted that P. W. 1 Jawahar had in his statement under Sec. 161, Cr. P. C. stated that he had come to his brothers house in village Usar Gaura in the evening. It had been marked as Ext. Kha-1. He had also admitted that Jawahar lal had stated to him that they after taking their meals were going for sleeping at the Khalihan at 7. 30 P. M. It is marked as Ext. Kha-2. ( 15 ) NOW taking up the argument of the defence that the F. I. R. in this case was anti-timed and antidated, we find substance in the submission. As discussed earlier, the I. O. had not performed any activity in furtherance of the investigation all along the night despite the fact that he claimed his arrival in the village at 11. 00 P. M. on the date of occurrence itself. The F. I. R. was transcribed at the police station at G. D. No. 39 at 10. As discussed earlier, the I. O. had not performed any activity in furtherance of the investigation all along the night despite the fact that he claimed his arrival in the village at 11. 00 P. M. on the date of occurrence itself. The F. I. R. was transcribed at the police station at G. D. No. 39 at 10. 00 P. M. In this context statement of P. W. 3 Head Moharir, Shiva Nath Singh is relevant. He had stated that P. W. 5 D. P. Singh was present at the police station at 8. 15 P. M. At 8. 15 P. M. this S. I. had returned after investigation. It is not noted in the G. D. where from he came back. The statement of P. W. 4 Nand Ram Tewari is much more relevant in this connection. This witness has admitted that the dead body was handed over to him at 10. 00 A. M. by D. P. Singh and Kaptan (P. W. 6) on 3-4-1978. Kaptan Singh (P. W. 6) has claimed that he had taken over the investigation from D. P. Singh on 3-4-1978, but this witness has not given out the time when the investigation was taken over by him from P. W. 5 D. P. Singh. P. W. 4 has stated that he reached the mortuary at 8. 15 P. M. along with the dead body and papers. As the doctor was not available, therefore, he had handed over the papers to doctor at about 11. 30 A. M. on 4-4-1978. He had admitted further that Usar Gaura from Allahabad is 44-45 Kms. He had taken the dead body on a Jeep up to Muratganj and from Muratanj he had proceeded to the mortuary on an Ekka (a horse cart ). Muratganj is 33-34 Kms. from Allahabad. he stated that he did not remember the name of the owner of Ekka. He further admitted that the Ekka continued to move all along. on every two miles the horse was given rest. He came up to Muratganj on police Jeep. he further admitted that the Jeep came from Allahabad. This Jeep was available to him at Usar Gaura. We do not understand, in the circumstances, why the Jeep was abandoned and the body was taken from Muratganj to the mortuary on an Ekka. on every two miles the horse was given rest. He came up to Muratganj on police Jeep. he further admitted that the Jeep came from Allahabad. This Jeep was available to him at Usar Gaura. We do not understand, in the circumstances, why the Jeep was abandoned and the body was taken from Muratganj to the mortuary on an Ekka. This, in our opinion, is ingenuity of the Investigating Agency to explain the enormous delay of the dead body reaching the mortuary. The journey was started at 10. 00 A. M. and it concluded at 8. 15 P. M. at the mortuary. The distance was only 44-45 Kms. In the circumstances, if the Ekka was stopping at every two Kms. for sometime, the journey could not have been concluded at 8. 15 P. M. It would have taken much more time. The Ekka had taken about 9 hours in covering 33-34 Kms, which, in our opinion, is wholly unbelievable. The total time taken by the constable in bringing the body to the mortuary is about 10 hours. As admitted, the journey was commenced on Jeep. We feel that the body was brought to the mortuary on a Jeep, which was summoned from Allahabad and the distance of 44-45 Kms. on a Jeep could easily be covered in an hour and a half. Thus, the dead body had been sent long after the time noted down in the inquest memo, i. e. 10. 00 A. M. This time has been utilised in summoning the witnesses from their respective places and thereafter in preparing the F. I. R. This fact is further borne out from the circumstance that in the investigation nothing was done all along the night. ( 16 ) IN view of these facts and circumstances, we find substance in the contention of the defence that the F. I. R. was transcribed later on and not as alleged by the prosecution in consulation with the police. ( 17 ) IN the light of the above facts and circumstances,both these appeals stand allowed and judgment and order passed by the learned trial Court on 14-8-1980, as aforesaid, is hereby set aside. The appellants are acquitted of the charges they were charged for. They are on bail. They need not surrender. Their bail bonds are cancelled and sureties are hereby discharged. Appeal allowed. .