D. K. TRIVEDI, J. This appeal has been filed against the judgment and order dated 29-2-1996 passed by Sri V. N. Pandey, Additional District and Sessions Judge, Lucknow, thereby convicting the appellant for the offence punishable under Section 302 I. P. C. read with Section 34 I. P. C. and sentencing him to undergo imprisonment for life and further convicting the appellant under Section 307 I. P. C. read with Section 34 I. P. C. and sentencing them to undergo rigorous imprisonment for a period of five years. 2. The facts leading to the prosecution of the appellant are that deceased Zaheer Hasan Khan, had obtained a contract for realisation of Tahbazari dues of leather market of Mahmoodnagar, Malihabad and accordingly he started realising those dues. It is further said that on11-2-1985 the deceased Zaheer Hasan Khan, had gone to Zila Parishad, Lucknow to submit his tenders for obtaining Theka of hides and Bones of Malihabad Block and he submitted tender in the name of his son Firoz Hasan Khan, Ishtiaq Hasan Khan, also wanted to have this contract in his favour and he also submitted his own tender in the name of one Faiyyaz. The tender of Firoz Hasan Khan being of highest amount was accepted by the authorities and on account of it, the appellant Ishtiaq Hasan Khan felt annoyed and hurled abuses at Firoz Hasan Khan, P. W. 1 and his father Zaheer Hasan Khan, deceased. It is further said that the appellant had also threatened deceased Zaheer Hasan Khan and his son Firoz Hasan Khan with dire consequences. There was also some altercation between the parties on account of that fact and on the intervention of police and arrests of both the sides, the matter was subsided. It was on account of that enmity and ill-will that the appellant Ishtiaq Hasan Khan alongwith his associates wanted to commit murder of Zaheer Hasan Khan and his son Firoz Hasan Khan. It is further said that on 3-3-1985 at about 10. 00 a. m. the deceased Zaheer Hasan Khan and his younger son Firoz Hasan Khan reached Mahmood Nagar Leather Market on Scooter and at about 10. 00 a. m. and when they were present in the market, an Ambassador Car arrived there, stopped on the road-side of the market, and accused Ishtiaq Hasan Khan armed with. 00 a. m. the deceased Zaheer Hasan Khan and his younger son Firoz Hasan Khan reached Mahmood Nagar Leather Market on Scooter and at about 10. 00 a. m. and when they were present in the market, an Ambassador Car arrived there, stopped on the road-side of the market, and accused Ishtiaq Hasan Khan armed with. 12 bore gun, his associate Asgar Ali armed with 12 bore gun, accused Mohd. Naseem armed with country made pistol and one Shivakant Sharma also known as Pandit armed with a revolver descended from the car and reached near Zaheer Hasan Khan. It is further said that Ishtiaq Hasan Khan and Asgar Ali both fired at Zaheer Hasan Khan with their respective arms and from a distance of about 5- 6 paces, as a result of which Zaheer Hasan Khan, sustained fire-arm injuries, fell down and died instantly. 3. Firoz Hasan Khan, the son of deceased Zaheer Hasan Khan, who was also present in the leather market witnessed the occurrence and in order to escape himself, ran towards Abadi and also the miscreants chased Firoz Hasan Khan as well and opened fires at him as well with the intention to kill. When Firoz Hasan Khan went in the narrow lane of the Abadi where Ambassador Car of the accused persons could not go, the accused returned back and went away towards Lucknow. The entire occurrence was witnessed by Zafar Hasan Khan alias Chanda Khan r/o Mirzaganj, Javed Ahmad r/o Kakori, Jagdish s/o Sri Gulab r/o Alawal Pur, District Hardoi, Vishram r/o Amaniganj (Malihabad) and many other parsons, who were present in the market. Due to panic created in the market as a result of firing, all shop keepers and other persons ran away and left the market. It is further said that the deceased sustained fire-arm injuries on his head and shoulder. Firoz Hasan Khan, the son of the deceased Zaheer Hasan Khan, out of fear went to the place of his brother-in-law and thereafter he went to his own house and then Sahzad Hasan Khan, the second son of Zaheer Hasan Khan, the real brother of Firoz Hasan Khan, P. W. 1 lodged written report Ex. Ka-5 at the Police Station on 3-3-1985 at about 10. 00 a. m. , on the basis of which a chik report Ex. Ka-5 at the Police Station on 3-3-1985 at about 10. 00 a. m. , on the basis of which a chik report Ex. Ka-7 was prepared and a case against the accused, persons was registered vide G. D. entry Ext. Ka. 8. The police reached the scene of occurrence. The Investigating Officer found the dead-body of Zaheer Hasan Khan, lying in a pool of blood in the market campus. The Investigating Officer thereafter prepared Panchayatnama of the dead-body of Zaheer Hasan Khan and other relevant memos. He also recorded the statements of witnesses and prepared site-plan Ext. Ka-13. The body of Zaheer Hasan Khan was sent to the District Hospital, Lucknow for post- mortem, where post-mortem was conducted vide post-mortem report Ext. Ka-4. After completing necessary formalities and investigation, charge-sheet was submitted against the accused persons. 4. Out of four accused persons involved in this case, the appellant Ishtiaq Hasan Khan absconded and therefore, his case was separated and the remaining three accused persons, namely, Asgar Ali, Mohd. Naseem and Shiva K4ant Sharma were tried by the learned Additional Sessions Judge in S. T. No. 326 of 1985, State v. Asgar Ali and others, and S. T. No. 453 of 1985, State v. Shiva Kant Sharma and others, and vide judgment and order dated 10-5-1993 delivered by Sri Shailendra Saxena, the then Additional District and Sessions Judge, Lucknow the remaining three accused persons were acquitted of the charges framed against them. In fact evidence in this Sessions trial against the appellant Ishtiaq Hasan Khan was recorded under Section 299 Cr. P. C. Subsequently however, the appellant surrendered before the learned lower Court. In support of its case the prosecution examined Firoz Hasan Khan, P. W. 1 Shahzad Hasan Khan, P. W. 2, Constable Rakesh Kumar Gautam, P. W. 3, Dr. D. S. Shukla, P. W. 4, H. C. Jai Prakash Singh, P. W. 5, A. R. K. Aniruddha Kumar, P. W. 6, S. I. Munna Lal Bajpai, P. W. 7, H. C. Suresh Kumar Tiwari, P. W. 8, H. C. Amir Ali, P. W. 9 and Sri Sukhveer Singh, Investigating Officer, P. W. 10. The prosecution also tendered copy of the statement recorded under Section 299 Cr. P. C. in S. T. No. 326 of 1985 of eye-witness Vishram, who had died after his statement was recorded in S. T. No. 326 of 1985 when the accused was not tried. The prosecution also tendered copy of the statement recorded under Section 299 Cr. P. C. in S. T. No. 326 of 1985 of eye-witness Vishram, who had died after his statement was recorded in S. T. No. 326 of 1985 when the accused was not tried. 5. The defence examined no witness and instead filed certain documents. The learned lower Court scrutinised the entire evidence on record and considering the entire circumstances of the case, believed the prosecution theory, convicted the appellant and sentenced him as above. Feeling aggrieved against the said judgment and order the present appeal has been filed. 6. We have heard learned Counsel for the parties at length and we have gone through the record. 7. In the present case the facts in not disputed that there was ill-will between the deceased Zaheer Hasan Khan, and his sons on one hand and the appellant Ishtiaq Hasan Khan on the other hand, in respect of obtaining a Theka of Hides and Bones of Mahmood Nagar Leather Market of Malihabad, District Lucknow. Both the parties offered tenders to the authorities. The tender of Zaheer Hasan Khan, and his son was found to be of highest price and it was accordingly accepted by the authorities and Theka was given to Zaheer Hasan Khan and his son, who in fact started realising Tahbazari dues in the market. According to the prosecution Ishtiaq, appellant was also keen to have his contract and when he failed to obtain it, by hook or by crook, he felt annoyed and threatened Zaheer Hasan Khan and his sons with dire consequences. Thus according to the prosecution there was strong motive with the appellant to commit the crime. On the other hand the learned Counsel for the appellant has submitted that there may be strong motive for the accused-appellant to commit crime, there may be strong motive to implicate him falsely in this case. It is, therefore, in between these two lines that the Court will have to scrutinise the evidence on record. The fact that Zaheer Hasan Khan was murdered on 3-3-1984 at about 10. 00 a. m. in the leather market on Mahmood Nagar is not disputed. Thus date, time and place of occurrence in this case is not disputed by the appellant. The fact that Zaheer Hasan Khan was murdered on 3-3-1984 at about 10. 00 a. m. in the leather market on Mahmood Nagar is not disputed. Thus date, time and place of occurrence in this case is not disputed by the appellant. The cause of death is also not disputed and it has no where been disputed that the deceased Zaheer Hasan Khan died due to arm injuries. It has simply been argued by the learned Counsel for the appellant that in the present case, the sole witness said to be an eye-witness of the alleged occurrence is the real son of the deceased Zaheer Hasan Khan and no other witness has been examined by the prosecution to support its case though a large number of persons were said to be present. 8. It has been submitted that Firoz Hasan Khan, is the real son of the deceased Zaheer Hasan Khan and as such his testimony being that of a relation witness, in the absence of corroboration should not be believed. 9. We have considered this aspect of matter and we find that there is no such law that relation witness should be discarded simply on the ground of fact that he is relation. However, the testimony of such a witness will have to be scrutinised with caution and care. It is in this background and the law on the point that the sole testimony of Firoz Hasan Khan, P. W. 1 will have to be examined thoroughly. 10. Before we discuss the evidence of Firoz Hasan Khan, P. W. 1, the sole eye-witness examined in this case by the prosecution, we may discuss the copy of the statement of Vishram who was examined by the learned Sessions Judge as P. W. 2 in S. T. No. 326 of 1985, State v. Asgar Ali and others, and at that time Vishram, said to be another eye-witness was alive and his statement in that Sessions Trial was recorded under Section 299 Cr. P. C. to be read against the appellant as and when he is tried. Thus certified copy of the statement (Ext. Ka-26) of Vishram is admissible in the evidence. No doubt the evidentiary value of the statement of Vishram is not the same as it would have been had the witness been alive and disposed before the Court. However, that statement cannot be ignored altogether. 11. Thus certified copy of the statement (Ext. Ka-26) of Vishram is admissible in the evidence. No doubt the evidentiary value of the statement of Vishram is not the same as it would have been had the witness been alive and disposed before the Court. However, that statement cannot be ignored altogether. 11. We have gone through the statement of Vishram aforesaid and we find that it is not that of a reliable witness. The statement shows that even according to Vishram himself he was at distance of 100-25 paces from the actual place of occurrence and where Zaheer Hasan Khan aforesaid was fired at by the miscreants. Vishram himself admits that he was away at a distance of 100-125 paces from Zaheer Hasan Khan and in between him and Zaheer Hasan Khan, a large number of persons were present in the market and were busy in purchase and sale of leather and bones. According to him, he heard the noise of firing all of sudden and this fact drew his attention. He rushed upto the site from where he heard the noise of firing and he saw accused Ishtiaq and his companion Asgar Ali firing with their guns. He did not in fact see co-accused Mohd. Naseem and Shiva Kant Sharma firing. He also did not see Firoz Hasan Khan at the place of firing. He simply has stated that when Firoz Hasan Khan heard the noise of firing, he ran up after starting his Scooter. However, there is nothing in his statement that Firoz Hasan Khan, P. W. 1 was also given a chase by the appellant and his companions or that the appellant and his companions were seen firing at Firoz Hasan Khan. From the statement of Vishram P. W. 2, it can be safely gathered that this person even if he was present in the market was not at all in a position to see the actual firing. In fact he may have heard the noise of firing and by the time he reached near the scene of occurrence, the culprits might have escaped and he might have heard from the nearby persons who had made firing. In fact he was not at all in a position to see as to who had fired at Zaheer Hasan Khan. 12. In fact he was not at all in a position to see as to who had fired at Zaheer Hasan Khan. 12. It may not be out of place to mention here that once Vishram the second eye-witness was reported to have died and was no move alive in the world the prosecution had an option to examine other witnesses in the case who were either named in the F. I. R. or were otherwise present in the market when the alleged firing took place. Even according to the prosecution there were as many as 200-300 persons present in the market. There were shops and houses and doors of these shops and houses open towards the market. Nobody has been examined by the prosecution in this case to corroborate the testimony of the relation witness Firoz Hasan Khan, P. W. 1 Javed Ahmad Jagdish and Zafar Hasan Khan and other witnesses besides Vishram, who are named in the FIR and who had allegedly seen the accused-appellant and his associates firing at Zaheer Hasan Khan. However, none of them has been examined by the prosecution. When Vishram was reportedly dead before the trial of the appellant started, it was the duty of the prosecution to have chosen atleast yet another witness to corroborate the statement of Firoz Hasan Khan, who is said to be a relation of the deceased Zaheer Hasan Khan and he could have been duly examined. Javed is yet another witness who had also been mentioned as a witness who had gone to report to Shajad Hasan Khan, P. W. 2 about the condition of Zaheer Hasan Khan and he might have been a another independent and important witness to corroborate the statement of Firoz Hasan Khan. Non-examination of any other witness by the prosecution clearly goes to show that these witnesses were not at all present on or near the scene of occurrence and thus in fact what the Investigating Officer has disposed before the Court below that when he went on or near the scene of occurrence, he found body of Zaheer Hasan Khan lying in a pool of blood and nobody at all was present in the market and out of panic every body had ran away. This is how that the Investigating Officer did not like to collect evidence of other eye-witnesses and the evidence of whom he collected, they railed to corroborate the statement of Firoz Hasan Khan, P. W. 1, who is the son of the deceased Zaheer Hasan Khan, and inimical to the appellant. 13. Now coming to the statement of Firoz Hasan Khan, P. W. 1, we may observe that besides the fact that he is the son of the deceased, his statement cannot be considered to be that of a reliable witness. He himself has admitted in his statement on oath and he was away from his father and was at a distance of 100-125 paces when he heard the noise of firing. There was a crowd in the market and every body was busy in purchase and sale of leather. It is noise of firing which drew his attention towards the scene of occurrence and he saw the accused persons firming. It was admittedly at his instance that the FIR in this case was lodged by his elder brother Shahzad Hasan Khan at the police station. In that FIR it has no where been mentioned that the accused Mohd. Naseem and Shiva Kant Sharma had also fired. In fact the main role of firing in the F. I. R. has been assigned to the accused-appellant Ishtiaq Hasan Khan and his companion Asgar Ali. Similarly in the F. I. R. it is not at all mentioned that any of the miscreants had fired at him (Firoz Hasan Khan, P. W. 1) as well. It is also not mentioned that he ran out of fear from the scene of occurrence and the accused persons also chased him and fired at him in order to kill him. Thus it is for the first time i. e. , at the time of trial that an story has been developed by the prosecution that the accused persons also fired at Firoz Hasan Khan and also chased him to a considerable distance. Even such a statement was also not made by Firoz Hasan Khan, P. W. 1 under Section 161 Cr. P. C. to the Investigating Officer. Thus it is for the first time that the story has been developed by the prosecution that Firoz Hasan Khan, was also present in the market. Even such a statement was also not made by Firoz Hasan Khan, P. W. 1 under Section 161 Cr. P. C. to the Investigating Officer. Thus it is for the first time that the story has been developed by the prosecution that Firoz Hasan Khan, was also present in the market. The accused persons fired at him and on it Firoz Hasan Khan started his scooter, ran away to towards Abadi and accused persons also fired at him and chased him to a considerable distance and when he directed himself in the narrow lanes of Abadi, the miscreants gave up the case. 14. In our considered opinion this story of alleged firing by co-accused Mohd. Naseem and Shiva Kant Sharma has been developed purposely so that the prosecution may be able to explain the presence of the appellant near the dead-body of Zaheer Hasan Khan. The accused-appellant Ishtiaq and his associate Asgar Ali had allegedly fired at Zaheer Hasan Khan with guns. However, the firing could not have been caused to an injured in the manner as has been alleged by the prosecution and admittedly the piece of wadding was found present and this is how a story was developed subsequently by the prosecution that the accused Mohd. Naseem armed with country made pistol and the accused Shiva Kant Sharma armed with revolver had also fired at Zaheer Hasan Khan. However, the post-mortem report on record shows that Zaheer Hasan Khan did sustain so many injuries caused by fire-arm as has been alleged by Firoz Hasan Khan, P. W. 1 who in fact was not at all in a position to see as to who had fired at his father. Firoz Hasan Khan, P. W 1 was admittedly at a considerable distance from his father at the time when alleged firing took place and there were a large number of persons in between and thus Firoz Hasan Khan was not at all in a position to see and identify the actual assailants. The presence of Firoz Hasan Khan, P. W. 1 is further falsified on account of the fact that Shahzad Hasan Khan is the first informant as stated that it was Firoz Hasan Khan, who reported the matter to him and it was at the instance of Firoz Hasan Khan, P. W. 1 that the F. I. R. was lodged at the police station. In the F. I. R. on record it is clearly mentioned that Zaheer Hasan Khan, deceased had sustained injuries on his head and shoulder. Therefore, the statement of P. W. 1 Firoz Hasan Khan, becomes contradictory that he saw the accused persons firing at his father and then accused persons started firing at him, he started his scooter and ran away from the scene of occurrence out of fear and accused persons chased him. Thus if we believe the statement of P. W. 1 Firoz Hasan Khan in the manner as stated by him, he was not at all in a position to see the condition of his father and atleast a minute observation that his father did sustain injuries on his head and shoulder. 15. Now a theory has been further developed to show that before F. I. R. was lodged Javed, said to be a witness mentioned in the F. I. R. did also meet Shahzad, P. W. 2, the first informant and he disclosed the condition of Zaheer Hasan Khan to Shahzad Hasan Khan before the F. I. R. was lodged. However, this is altogether a new theory which has been developed at the first time during the trial and as such cannot be believed for a moment. The presence of Firoz Hasan Khan, P. W. 1 on or near the scene of occurrence is further doubtful on account of the fact that the Investigating Officer in the site-plan prepared by him did not at all show as to from which place Firoz Hasan Khan, P. W. 1 had witnessed the occurrence. It is also not mentioned in the site-plan as to on what place the scooter of Firoz Hasan Khan was kept. It is also not shown in the site-plan as to from which distance the miscreants fired at Firoz Hasan Khan. It is also not shown in the site-plan as to in which direction Firoz Hasan Khan, P. W. 1 ran away and miscreants fired at him recklessly and chased him. It is also not shown in the site-plan as to from which distance the miscreants fired at Firoz Hasan Khan. It is also not shown in the site-plan as to in which direction Firoz Hasan Khan, P. W. 1 ran away and miscreants fired at him recklessly and chased him. Thus the site-plan does not at all show the presence of Firoz Hasan Khan, P. W. 1 on or near the scene of occurrence and similar is the position of Vishram said to be another eye-witness of occurrence, and had the story of keeping of the scooter in the market campus being there, the Investigating Officer could not have omitted to observe such an important fact and he must have mentioned all these facts in the site-plan or in the case-diary. However, nothing has been shown in this case and this shows that Firoz Hasan Khan, P. W. 1 was not at all present on or near the scene of occurrence. It will not be out of place to mention here that if Firoz Hasan Khan, P. W. 1 was present on or near the scene of occurrence and near his father, as has been disposed by Firoz Hasan Khan, P. W. 1 before the learned lower Court, there was hardly an escape for him to go unhurt. Out of four miscreants two were allegedly armed with guns, one of them was having a country made pistol and another with a revolver. All miscreants had allegedly fired and according to Firoz Hasan Khan, P. W. 1, all the four miscreants fired at him and chased him upto a considerable distance. There was a crowded market and as many as 200-300 persons were present at the time of alleged firing and when there was recklessly firing by as many as four persons, atleast some body might have sustained some fire-arm injuries. Even if Firoz Hasan Khan, P. W. 1 could have gone unhurt, somebody in the crowd must have sustained some injuries. Since no-body did sustain any injuries including Firoz Hasan Khan, P. W. 1, the theory of alleged firing at Firoz Hasan Khan, by the miscreants is highly doubtful and even the presence of Firoz Hasan Khan, P. W. 1 on or near the scene of occurrence is highly doubtful. 16. Since no-body did sustain any injuries including Firoz Hasan Khan, P. W. 1, the theory of alleged firing at Firoz Hasan Khan, by the miscreants is highly doubtful and even the presence of Firoz Hasan Khan, P. W. 1 on or near the scene of occurrence is highly doubtful. 16. Apart from the statement of Firoz Hasan Khan, P. W.-1 there is certified copy of the statement of Vishram and we have discussed the authenticity of that statement as well and we find that neither Firoz Hasan Khan, P. W. 1 nor Vishram were present on or near the scene of occurrence and these witnesses were not at all present and they atleast were not in a position to see the alleged firing. The case against the appellant is thus not proved to the hilt and beyond all reasonable doubt and the benefit of which must go the appellant-accused and implication falsely due to personal enmity cannot be altogether ruled out. In consequence the appeal deserves to be allowed and is hereby allowed and the judgment and order dated 29-2-1996 passed by the learned Sessions Judge is hereby set aside. The appellant Ishtiaq is held not guilty of the offence punishable under Section 302/307 I. P. C. read with Section 34 I. P. C. He is acquitted of the charges framed against him. He is in jail and shall be released forthwith if not wanted in any other case. Appeal allowed. .