Judgment : S. K. Agarwal, J.- 1. These two appeals arose from a common judgment dated 1-2-1996 passed by learned IInd Additional Session Judge, Jaunpur Sri R. A. Kesarwani. Appellant Pushkar Pandey was convicted and sentenced to life imprisonment under Section 302 IPC under Section 307 IPC to ten years RI and a fine of Rs. 3,000 under Section 323/34 IPC to six months RI under Section 342/34 IPC to six months RI and under Section 27 Arms Act to three years RI and a fine of Rs. 1000. Appellant Prabhakar Pandey was convicted and sentenced under Section 302/34 IPC to life imprisonment under Section 307 IPC to 7 years RI and a fine of Rs. 3000 under Section 323/34 and 342/34 IPC to six months RI each respectively. He has been convicted under Section 30 Arms Act to six months RI Appellant Karunakar Pandey was convicted and sentenced to life imprisonment under Section 302/34 IPC under Section 323/34 IPC to six months RI and under Section 342/34 IPC six months RI. All the sentences were directed to run concurrently. They were held to pay compensation under Section 357 (3) IPC all the appellants were liable to pay a sum of Rs. 1,50,000 as compensation. Out of which Pushkar Pandey is to deposit a sum of Rs. 1,00,000 Karunakar Pandey and Prabhakar Pandey were fastened with the liability to pay a sum of Rs. 25,000 each towards the compensation amount. The amount so deposited shall be payable to Raj Narain Singh informant. 2. THE facts giving rise to the offence are alleged in the written report submitted at police station Mariyahun by Raj Narain Singh for an incident that had taken place at about 8.30 a. m. on 24-5-1994. The first information report was lodged at about 9.10 a. m. The distance of the police station from the petrol pump being 7 kms north. The story in brief is that the informant is a resident of Village Pravaspur, Police Station Mariyahun, district Jaunpur. On the date of the occurrence Sunil Singh alias Guddoo, resident of Village Vasnari alias Vasvadi, Police Station Kerakat, district Jaunpur visited informant for the bidai of his sister who was married to the informant's son Rakesh. On 24-5-1994 in the evening this bidai was sought in connection with a marriage in his family. On the date of the occurrence Sunil Singh alias Guddoo, resident of Village Vasnari alias Vasvadi, Police Station Kerakat, district Jaunpur visited informant for the bidai of his sister who was married to the informant's son Rakesh. On 24-5-1994 in the evening this bidai was sought in connection with a marriage in his family. On the date of the occurrence i. e. 24-5-1994 at about 8.30 a. m. Sunil Singh went to the petrol pump know as Dharamraj Service Station Pali for taking petrol in his scooter. In the meantime the informant along with Adya Prasad Singh of his village came on the road in front of the petrol pump on his way to go to the examination center where they were to check the answer books of the board exmainations. They saw that a quarrel between Prabhakar and Sunil Singh was gong on at the petrol pump. In the meantime Prabhakar Pandey, Karunakar Pandey and Pushkar Pandey started dragging Sunil Singh to their show room. He was given beating also in the process. When the informant and his companions tried to prevent them they were greeted with abuses. Prabhakar Pandey exhorted his companions to shoot the informant. On this Pushkar Pandey fired a shot at him with his DBBL gun. The informant and his companions retreated to safety. The gunshot report attracted his sons Rajesh Singh and Brijesh Singh, who emerged out from the Village pathway by then. As soon as they reached the petrol pump Prabhakar Pandey and Karunakar Pandey challenged them also and exhorted Pushkar Pandey to kill the two. Pushkar Pandey immediately opened fire on them. The fire shots discharged by Pushkar Pandey struck his sons who fell down and died on the spot. The incident was witnessed by Ramjit Singh, Virendra Singh, Bholanath Singh and others apart from the informant and Adya Prasad Singh. In the meantime the informant prepared a written report. It was lodged at the abovesaid police station. The first information report was registered by PW-8 who proved the written report, check first information report and relevant General Diary entries Ext. Ka-11 and Ka-12 on the record. PW-11 investigated the case and submitted the charge-sheet. Panchayatnama on the bodies of the two deceased was prepared by Indresh Yadav SI. He also is the Investigating Officer (hereinafter referred to as IO) of the case under Arms Act. Ka-11 and Ka-12 on the record. PW-11 investigated the case and submitted the charge-sheet. Panchayatnama on the bodies of the two deceased was prepared by Indresh Yadav SI. He also is the Investigating Officer (hereinafter referred to as IO) of the case under Arms Act. PW-14 R. N. Pandey is the Sub-Inspector who had arrested the accused persons at 9.30 a. m. from their show room and recovered PW-2 Sunil Singh from there. He lodged the arrested persons into the police lock-up. H. C. Ramanuj Pandey has taken the bundle of the recovered articles and the guns to the police station. PW-4 Dr. M. L. Srivastava has examined the injuries of Sunil Singh PW-2. Dr. C. K. Gupta conducted the post-mortem examination on the person of the two deceased. Anwar Jamal PW-9 is the ballistic expert. This is in nutshell the entire formal evidence. Apart from them prosecution examined three eye-witnesses as well. 3. APPELLANT Prabhakar Pandey has denied the prosecution version and alleged that he was not present at the post. He is innocent and has been falsely roped in the case. APPELLANT Karunakar Pandey had stated that on the date of incident he was student of M. A. Final (Philosophy) and was studying in Gyanpur. There was a holiday on 23-5-1994. He came to the petrol pump but at the time of the occurrence he had gone to evacuate. When he came back after evacuation he was arrested by the police. No recovery of any weapon was actually effected from them. The weapons shown against them belong to the deceased persons and Sunil Singh. Coming to the statement of Pushkar Pandey recorded under Section 313 Crpc. We find that he had denied the manner of the incident and has stated that the witnesses are deposing falsely and a false case was foisted against him in order to conceal the truth and the real manner of the incident from the Court. In response to question No. 68 he has adverted that he will file his written statement under Section 313-A Crpc. His written statement was filed which is available at page No. 148 of the paper book. According to this appellant Pushkar Pandey was present at the petrol pump. His servant Surendra Kumar alias Munnu was giving petrol to only those persons who had deposited the money for taking petrol and obtained the slip for it from the counter. His written statement was filed which is available at page No. 148 of the paper book. According to this appellant Pushkar Pandey was present at the petrol pump. His servant Surendra Kumar alias Munnu was giving petrol to only those persons who had deposited the money for taking petrol and obtained the slip for it from the counter. On 24-5-1994 in the morning Brijesh Singh visited the petrol pump and tried to take petrol forcibly without depositing the price and without obtaining slip from him. The servant told him that there is no petrol. Brijesh Singh snatched the Nozzle from him and tried to take petrol himself. The servant retrieved the Nozzle from him and pushed him aside. Brijesh Singh started abusing his servants. The servant asked him to desist from doing so. Brijesh Singh become infuriated. He left the place extending a threat that he will return with his brother Rajesh Singh and then see them. Little afterwards Brijesh Singh and Rajesh Singh with Katta arrived at the spot on a motorcycle. They were accompanied by some other boys including Sunil Singh, who were also armed with Kattas, gun and bombs. They entered into the compound of his petrol pump. These persons were extending threats. Rajesh Singh and Brijesh Singh exhorted his companions to kill all of them, commit loot and set the petrol pump a fire. They were all advancing menacingly to the show room. The fire made by Brijesh Singh Rajesh Singh and their companions struck the eastern side of the glass of his show room. His companion had also hurled bombs towards the show room. It was made of fiber glass. They entered into the show room of the petrol pump and started committing loot of the cash. In the meantime Rajesh Singh and Brijesh Singh and his companions brandished their Katta and revolver towards the servant. In order to save their property and his life the servant fired from the licensed double barrel gun of Prabhakar Pandey. Shots hit Rajesh Singh and Brijesh Singh. In the melee Sunil Singh fell down on the ground. The servant after resting the gun with eastern wall took to his heals and was not traceable since then. His servant Surendra Kumar son of Ram Chandra is a resident of village Surhan, Police Station Chauri district Bhadohi. At the time of incident Rs. In the melee Sunil Singh fell down on the ground. The servant after resting the gun with eastern wall took to his heals and was not traceable since then. His servant Surendra Kumar son of Ram Chandra is a resident of village Surhan, Police Station Chauri district Bhadohi. At the time of incident Rs. 72,000 was lying in cash in the vallet of show room. The police has removed the registers including the sale and stock register, attendance and salary register of the servant etc. in order to conceal the truth. The complainant and the police have concealed his servant some where deliberately in order to avoid the correct version of the incident from coming before the Court. Major portion of the cash was looted by the companions of the deceased persons and the police too removed the remainder. The licensed gun of Prabhakar Pandey was not recovered from his possession but was found resting with the outer eastern wall of his show room. No weapon was recovered from the possession of Karunakar Pandey. The weapons which the police claimed to have recovered from the lower drawer of his counter belong to the two deceased and Sunil Singh. He did not open any fire upon him. They did not know Sunil Singh from before. The facts alleged in the first information report and evidence about Sunil Singh's coming for taking petrol is a false story and was culled out by the police in collusion with Raj Narain Singh. He was never retrieved from the show room. Sunil Singh's father was a Sub-Inspector in the police department which fact they came to learn much later. With his connivance the police has cooked up this case in an illegitimate manner against the appellants. The first information report was ante-dated and ante-timed. His report was not taken down despite the assurance given to him by the police. Thus, from his written statement it is apparent that he is denying the prosecution case almost in its entirety. According to him, the prosecution side was the aggressor and his servant opened fire in order to protect the petrol pump, its property and the appellants from their assault by the miscreants who were many in number armed with gun, revolver and country made pistol and bombs. They had indulged according to him in the looting of his cash. According to him, the prosecution side was the aggressor and his servant opened fire in order to protect the petrol pump, its property and the appellants from their assault by the miscreants who were many in number armed with gun, revolver and country made pistol and bombs. They had indulged according to him in the looting of his cash. His allegation is that the police have colluded with the informant and had not registered their first information report. The version of the prosecution against them was ingenious and false. The police deliberately did not register their version to benefit the prosecution. 4. IT is contended by learned Counsel for the appellant that original first information report is not the hand work of the informant. It apparently was prepared by some one else and the informant only signed it. Different types of pens were used in its transcription. Even the hand writing also differs. It is also contended that the injuries of the two deceased indicate that firing was resorted to from beyond 2 yards and within 3 yards. The stomach of both the deceased were empty and intestines suggest that they had evacuated. Injury of Sunil Singh requires close scrutiny. It is not genuine. Firing was made by the servant of petrol pump. No use of any revolver, Katta or gun recovery of which was alleged, is borne out form the medical evidence. Even the country made pistol claimed to have been recovered from the drawer of the counter was not used in the offence. In the nutshell the truthfulness of the story of the prosecution has seriously been challenged. It is further alleged that the conduct alleged against all the appellants is wholly improbable. Many houses and shops are in the vicinity of the place of the occurrence but none of them were examined despite presence of these persons being admitted. Raj Narain Singh has not suffered any injury and had not made any attempt to separate the parties. It is most unnatural on his part if he was present there. Learned AGA in response submitted that it is a broad daylight incident. The report was promptly lodged by the father of the deceased. Presence of the father and other witnesses is not open to any challenge. They are the probable witnesses. The medical evidence corroborates the prosecution story. It is most unnatural on his part if he was present there. Learned AGA in response submitted that it is a broad daylight incident. The report was promptly lodged by the father of the deceased. Presence of the father and other witnesses is not open to any challenge. They are the probable witnesses. The medical evidence corroborates the prosecution story. The presence of injured witness further lends assurance to the truthfulness of the prosecution version. In order to test the rival contentions we propose to examine first the medical evidence. Pw-7 Dr. C. K. Gupta had conducted the autopsy on the person of the two deceased. The post-mortem examination of Brijesh Singh is Ext. Ka-9. He had suffered a solitary gun shot wound 5 cm x 5 cm x cavity deep on the left side chest 6 cm below and internal to left anterior. Auxiliary bone and 5 cm internal to left nipple, margin of the wound are irregular. No blackening, scorching or tattooing were noted. Direction of wound is toward right side chest. No exit wound was found. No other injury over the body as mentioned by SHO in photo Nash was found by the doctor. The internal examination of thorax shows fracture of 6th and 7th ribs. 8th rib in pieces under injury No. 1. Pleura was pierced. Two wadding and metal pieces were recovered from the area. Right lung was pierced and six metallic shots were recovered from there. From the left lung 7 metallic shots were removed. Pericardium was also pierced. Both ventricles were pierced through and through 5 metallic shots were recovered from the vessel. Large vessels were found empty. The cause of death is excessive haemorrhage and shock as a result of ante mortem injuries on vital organs. Thus, it is apparent that this deceased has suffered only one gun shot injury and in all 21 metallic shots (small) and 3 pieces of wedding material were recovered from the affected parts of the body. 5. COMING to the post-mortem examination report of Rajesh Singh, which is Ext. Ka-10 we find that he has suffered only one gun shot wound of entry 4 cm x 4 cm x cavity deep on the right side back of chest 14 cm internal to right posterior auxiliary fold. Margin of the wound were irregular. No blackening, scorching or tattooing were noted. Ka-10 we find that he has suffered only one gun shot wound of entry 4 cm x 4 cm x cavity deep on the right side back of chest 14 cm internal to right posterior auxiliary fold. Margin of the wound were irregular. No blackening, scorching or tattooing were noted. Direction of the wound inverted towards the left side chest anteriorally. No wound of exit was noted. No other injury over the body as mentioned by SHO in the photo Nash was found by the doctor. The ribs were fractured in multiple pieces. Pleura was pierced. One wadding material from the lung was recovered. Larynx, trachea and bronchi were found normal. The right lung was pierced through and through 0. 5 cm x 0. 5 cm. No abnormality detected. Pericardium was found pierced. Three pellets were recovered. Thoracic cavity was found full of semmi clotted blood. In his case also the death was due to shock and haemorrhage as a result of the injuries sustained on the vital part. 11 metallic shots were recovered from the injury. It is also a case of solitary injury of a firearm. 6. THERE is no dispute with regard to the use of the gun belonging to Prabhakar Pandey between the prosecution and the defence. Ballistic expert report shows that four test shots were fired from this gun. They are EC 1 to EC 4. This report is Ext. Ka-20 on the record. It was submitted by Sri Anwar Jamal PW-9. He is an expert in Vidhi Vigyan Prayogshala, Mahanagar Lucknow. He had stated that he has an experience of last 20 years of the examination of different type weapons. On 13-6-1994 Head Constable Ramanuj Pandey PW-13 brought the DBBL gun in question along with three cartridges. Four spent cartridges were also brought which was marked as EC 1 to EC 4. DBBL gun No. 17249-91 was marked 1/94 and unused cartridges were marked EC 5 to EC 14 in number. Belt in which they were kept is B-1. Two shots from each barrel were fired. These were marked EC 1, 2, 3 and 4. On the microscopic inspection it was found that they were all fired from the same gun. EC 1 to EC 3 were fired from the lower barrel of the gun, EC 2 and 3 were fired from the upper barrel of the gun. Two shots from each barrel were fired. These were marked EC 1, 2, 3 and 4. On the microscopic inspection it was found that they were all fired from the same gun. EC 1 to EC 3 were fired from the lower barrel of the gun, EC 2 and 3 were fired from the upper barrel of the gun. He had admitted that the case property was not received by him. It was brought on 13-7-1994. He himself took it out from the almirah. It was received in his department by the ballistic expert Sri O. P. Mani Tripathi. There is nothing in Ext. Ka-20, which may show who received the case property. His report also does not suggest that comparative examination was started on 13-7-1994. He has admitted that it was completed within two days. But this is not mentioned in his report. This report Ext. Ka-20 does not contain that it was typed on his dictation and under his instructions. The specimen seal was not returned by him. It is in his office file. He has produced the same in the Court on the date of his evidence. The cloth in which gun and cartridges were received did not have any writing or number in his hand. He was suggested that he has prepared Ext. Ka-20 falsely without any actual examination. He has also denied that any transposition of the cartridges was done by him. He has denied the suggestion that on the cartridges Ext. 2 to Ext. 5, EC 1 to EC 4 was put by him. He has also denied that on these cartridges his and the Assistant Director Sri B. Darshan's signatures are there. He claimed that under his signature dated 13-7-1994 is there. According to him the date put by Sri B. Darshan, Assistant Director is not legible but on EC 1 to EC 4 underneath the signature of B. Darshan, dated 13-7-1994 is clear in the cartridges. They were fired in the laboratory. There is no date underneath his signature. There is no signature of B. Darshan as well. It is written in the report that these bundles were opened in the laboratory itself. On opening the bundles signatures of B. Darshan were usually obtained then and there. He has admitted that there is no mark of breach on EC 4. There is no date underneath his signature. There is no signature of B. Darshan as well. It is written in the report that these bundles were opened in the laboratory itself. On opening the bundles signatures of B. Darshan were usually obtained then and there. He has admitted that there is no mark of breach on EC 4. He had explained to the Court in response to the Court question that absence of breach mark does not mean that the shot was not fired from the disputed gun because it is not necessary that in a third fire breach mark must come. He has admitted that on all the four shots that were fired breach mark is there. No estimation of time when these shots were fired can be given. Triggers of the gun were one after another. Pressing of the first trigger will discharge one shot from one barrel. He had admitted that it is not possible to fire again without reloading the gun. It means clearly that the ejection of the spent cartridge is a must before another fire. He has denied that any tampering with the cartridges has taken place in his laboratory. He has denied that his report Ext. Ka-20 is not correct. It is clear that if a shot is fired from a gun breach mark will come on the spent cartridge. In the circumstances it cannot be said that this EC 4 was fired from this gun. It is not the case of the prosecution that the gun was ever reloaded. So far as the two deceased are concerned presence of one gun shot wound each lends credence to the defence story of the use of the barrels only once. According to the prosecution it was fired upon by Pushkar Pandey. At the cost of repetition it will be relevant to mention here that there was no blackening scorching or tattooing in these injuries. It suggests that these fires were made from beyond two yards. The pellets remained into the body of the two deceased. Blackening and scorching is probable upto a distance of two yards only in the case of regular gun. In the present case no tattooing was found on the injuries of the two deceased. The ballistic expert report therefore, does not provide any conclusive evidence that the gun recovered was repeatedly fired. Blackening and scorching is probable upto a distance of two yards only in the case of regular gun. In the present case no tattooing was found on the injuries of the two deceased. The ballistic expert report therefore, does not provide any conclusive evidence that the gun recovered was repeatedly fired. According to the prosecution initially shots were fired on Raj Narain Singh and Adya Prasad Singh by the appellant Pushkar Pandey and when his sons arrived there they were also fired upon. This requires reloading of the gun. It is common knowledge that each barrel of DBBL gun is capable of firing one shot each at a time and unless it is reloaded fresh shots cannot be fired. There is no such allegation made by the informant. What effect this circumstance will have on the evidence of Raj Narain Singh will be seen later on when the evidence of witnesses will be evaluated. The impugned gun was fired four times as per the allegations now. 7. BEFORE doing that we find it proper to deal with the medical report and the injuries sustained by the injured Sunil Singh PW-2 in the incident. His injury report is Ext. Ka-6 on the record. He was examined on 24-5-1994 at about 1. 50 p. m. He was taken to the hospital by Bhaiya Ram, Home Guard. His injuries are as under: 1. Abrasion 11 cm x 1. 5 cm on back of right fore arm just below right elbow. 2. Reddish contusion 4. 5 cm x 2. 5 cm on back of right forearm 8 cm above right wrist joint. 3. Reddish contusion 4 cm x 3 cm on left side back 9 cm below lower and of right scapula. 4. C/o pain on right hip joint. 5. C/o pain on right knee joint. 8. ALL injuries are caused by hard and blunt object and are simple in nature. Duration fresh. He was examined by PW-4 Dr. M. B. Srivastava. According to the doctor it could be caused at about 8.30 a. m. The blunt object includes first blow as well. Injured was not present in the Court when doctor was examined. The doctor in cross-examination has stated that his injury could not be caused at 7 a. m. on 24-5-1994 but they could be caused at 7.30 a. m. Although he clarified that exact duration of these injuries cannot be ascertained. Injured was not present in the Court when doctor was examined. The doctor in cross-examination has stated that his injury could not be caused at 7 a. m. on 24-5-1994 but they could be caused at 7.30 a. m. Although he clarified that exact duration of these injuries cannot be ascertained. He had admitted that injury Nos. 1, 2 and 3 could be caused if a persons falls on hard object on that side where his injuries are. He had admitted that no colour of the injury No. 1 which is an abrasion is noted by him. He had denied that because of not recording the colour of the injuries he is unable to give any definite opinion about its time of sufferance. He has further claimed that since the injuries are noted fresh it may be within six hours. He was suggested that according to Modi the scab formation starts after ten hours. He stated that it depends upon the nature of the abrasion. He had stated that in a bruise colour does not appear promptly. The colour appears around such injury after 24 hours. He has admitted that injury No. 1 of Sunil Singh is possible from a contact with a hard surface. 9. IN order to consider the merit of above circumstances examination of the eye witnesses detailed by PW-1 Raj Narain Singh, PW-2 Sunil Singh (injured witness) and PW-3 Ramjit Maurya has to be made. According to PW-1 Raj Narain Singh on the road leading to Mirzapur Dharamraj Filling Station (Petrol pump) is situated. IN the north and south of this house there are roads, which ultimately converge on the Jaunpur-Mirzapur road. It is a highway. The vehicles that pass through the above road use to take petrol from this filling station. Men belonging to his family and villagers generally use to come in front of the petrol pump in order to go to Mirzapur or Jaunpur. The above said filling station was approved in the year 1988. Prabhakar Pandey was searching for a land for his petrol pump. Prabhakar Pandey was repeatedly requesting the informant to sell his land to him but he did not sold it to Prabhakar Pandey. Due to this bad blood persisted between them. IN the south of this petrol pump about 400-500 steps away a piece of land measuring 15 bighas belonging to him is there. Prabhakar Pandey was repeatedly requesting the informant to sell his land to him but he did not sold it to Prabhakar Pandey. Due to this bad blood persisted between them. IN the south of this petrol pump about 400-500 steps away a piece of land measuring 15 bighas belonging to him is there. The rain water of this plot passes through the road going through north of this pump into a drain. The drain falls into Sai River. The appellant after fixing their petrol pump tried to fill the drain. They tried to stop them from doing so. This was another cause giving rise to grouse. He is a teacher in Balbhadra Inter College, Pali Subhashpur. On the date of the occurrence he and Adya Prasad Singh were proceeding for correcting the copies of the U. P. Board examinees. They were asked to do so by the U. P. Board. He was to go to Nagar Palika Inter College and Adya Prasad Singh was to go to Mohammad Hasan Inter College Jaunpur. He has filed his letter of appointment. They are Ext. Ka-1 and Ka-2 on the record. He received his appointment letter by registered post. They used to go to Jaunpur by any vehicle which may be available to them near the petrol pump. He and his family members have a dozen small and heavy vehicles. They used to take petrol for their vehicles from this very petrol pump. His relatives also do the same. Deceased Rajesh Singh was married to the daughter of Sharda Singh, who is a resident of village Banswari Police Station Kerakat district Jaunpur. Sunil Singh, injured witness in his brother-in-law. According to him Sunil Singh had visited him on 23-5- 1994 in connection with the bidai of his sister and also to extend the invitation of the marriage which was to be solemnised on 26-5-1994. He has filed the invitation card and its envelope which are Ext. Ka-3 and K-4 on the record. According to him Sunil Singh started on the night of 23-5-1994. He left his house at about 8 a. m. on 24-5-1994 for going to Gutwan on his own scooter. Sunil Singh's bua (father's sister) is living in Gutwan. He and Adya Prasad Singh left their house for correcting the answer books. Ka-3 and K-4 on the record. According to him Sunil Singh started on the night of 23-5-1994. He left his house at about 8 a. m. on 24-5-1994 for going to Gutwan on his own scooter. Sunil Singh's bua (father's sister) is living in Gutwan. He and Adya Prasad Singh left their house for correcting the answer books. They came to the petrol pump by kachcha lane and Sunil Singh came to the petrol pump from the road leading to highway road. When he was still little away from the petrol pump he heard voice of Prabhakar Pandey and Sunil Singh which was coming from the petrol pump. It was about 8.10 a. m. He saw appellants assaulting and dragging Sunil Singh to the show room. They had lodged Sunil Singh in the show room. They ran from their place towards the petrol pump asking them not to indulge in violence. When they crossed the road and proceeded towards the petrol pump Prabhakar Pandey exhorted Pushkar Pandey to assault them. On this Pushkar Pandey fired a shot from his gun. They ran for safety. This gun shot report and their alarm attracted his sons Rajesh Singh and Brijesh Singh who reached the petrol pump on his motorcycle. Seeing them appellants Karunakar Pandey and Prabhakar Pandey shouted "kill them". Pushkar Pandey fired shots from his 12 bore gun hitting Rajesh Singh and Brijesh Singh. Both of them fell down on the ground at the petrol pump itself. Apart from him and Adya Prasad Singh the incident was also witnessed by Bhola Nath Singh, Ramjit Maurya Virendra Singh and many others. He rushed to Mariyahun police station. IN between at the bus stand he prepared his written report which is Ext. Ka-5 on the record. When he came along with the copy of the written report at the spot senior officers of the police were present there. The Sub-Inspector enquired about the incident from him. He prepared the inquest memo and dispatched the deadbody of both the deceased for post- mortem examination. Sunil Singh who was sustained injuries was not present there because he was sent for medical examination. After his return from medical examination the spot was inspected by the police in his presence. Blood was collected from the spot along with simple earth. The spot from where the gun was fired 4 spent cartridges were recovered by the police. Sunil Singh who was sustained injuries was not present there because he was sent for medical examination. After his return from medical examination the spot was inspected by the police in his presence. Blood was collected from the spot along with simple earth. The spot from where the gun was fired 4 spent cartridges were recovered by the police. The motorcycle of the deceased and the scooter of Sunil Singh were taken into custody and were given to them. Rajesh Singh and Brijesh Singh were fired from a distance of 13 steps from east-north corner of the petrol pump. According to him his father Harihar Singh h ad three sons Surya Bali Singh, Ram Bali Singh and Bhola Nath Singh. Bhola Nath Singh was nominated as a witness of the incident although he was not examined in the Court. One of the sons of this Bhola Nath Singh is an advocate. He was standing by his side when he was making his statement. Bhanu Pratap Singh and Rana Pratap Singh were also witnesses in this case. The brother of this witness Virendra Singh is also an advocate. Adya Prasad Singh is his Pattidar (collateral ). His house is to the south of his residential house at about 50 paces. Ramjit Maurya also belongs to his village and he is examined in the case as PW-3. His house is situated at a distance of about 400-500 paces from his house. He has admitted that Ramjit Maruay is a farmer. He had denied that he and Adya Singh were police witnesses. He has also denied that on this account the policemen are regularly visiting them. He has denied that his house is towards the east from the petrol pump. A chak road passes from his house in north and converges on Mirzapur road and ultimately join Jaunpur-Mirzapur Highway. He admitted that about 270 steps from the Bhita Mirzapur-Bhutawan road also joins Mirzapur-Jaunpur road. The road that passes in the south of his house converges on Mirzapur Jaunpur road at a distance of about 153 steps further from the above said Bhita. He has admitted that there is a boundary wall of the petrol pump in the south-west. Close to the boundary wall in the south there is Abadi. Quarter of Ashok is here. One or two ladies live. He pleaded ignorance whether men are living there or not. He has admitted that there is a boundary wall of the petrol pump in the south-west. Close to the boundary wall in the south there is Abadi. Quarter of Ashok is here. One or two ladies live. He pleaded ignorance whether men are living there or not. Adjacent to the quarter of Ashok quarter of Subedar is there. He did not know whether any one live in this house or not. Next to Subedar is the quarter of Naqib Churihar. His family is living here. Adjacent to Naqib house of Munir tailor is there. His family is living there. IN the south quarter of Manoj is there but his family is not living here. IN further south house of Kattar is there. Adjacent to it is house of a Salim and he admitted that his family is living. Next to the house of Salim is house of Ram Kiran. According to him this Ram Kiran has two houses. He denied the existence of the house of Lalrak Nai at a distance of 20 steps from the above said Bhita. According to him at distance of about 20 steps from the bhita in the north Shyam Lal has a hut. IN the north house of Bhaiya Lal Musahar is there and he lives here with his family. Adjacent to the northern boundary of the petrol pump, in the house of Ashok, Chotey Lal is running a cycle repair shop. Next to this shop there are three more shops of motor tyres and medicine. One of these shops belong to Liaqat Ali, Srinath is running a hotel here. Srinath is Pradhan. The hotel some times open and some times it does not. Presently it is closed. At a distance of 200-300 steps in the north of the hotel Bankey Lal Teli, Rampher Yadav, Dalsingar Yadav and Mohan Harijan have their houses. At a distance of 400 yards from this locality a Harijan basti is also there. He denied that any one came to the petrol pump from his house and further added that an old permanent pathway (pucca) is also there. He denied that no one can pass on foot on it because of thick existence of shrubs. He denied the suggestion that he claimed the presence of a pagdandi just to make his presence probable near the pump. He claimed hat he had shown this pathway to the IO. He denied that no one can pass on foot on it because of thick existence of shrubs. He denied the suggestion that he claimed the presence of a pagdandi just to make his presence probable near the pump. He claimed hat he had shown this pathway to the IO. He had also claimed that he told the IO that he and Adya Prasad Singh came straight on the road in the vicinity of the pump from this pathway. He did not answer the suggestion that whether in the report he has stated this fact. Then admitted that in the report it was not written that he and Adya Prasad Singh came to the main road in front of the petrol pump by this pagdandi. The report contains only that they came out on the road in front of the petrol pump. He could not offer any explanation for the omission of this fact in his 161 Crpc statement as well. He denied that his claim that he and Adya Prasad Singh came from the pagdandi on the road is false and was made must to make his arrival probable in front of the petrol pump. He had to admit that the IO has not shown this pagdandi in the site plan. He did not explain non-depiction of this pagdandi in the site plan. Although he had admitted that the site plan was prepared at his instance as well as at the instance of Sunil Singh. He admitted that he did not show that place from where the voice of Sunil Singh emanated. He has further admitted that he had not shown the spot from where he had seen the two appellants dragging Sunil Singh into their show room. He admitted that he had not shown to the IO that place from where he ran to save Sunil Singh. Whether he had shown that place to the IO from where fire was made on them, he admitted that he did not show to the IO that place from where Pushkar Pandey fired on them. He further failed to explain in the omission of the spot from where they had seen the rest of the incident to the IO why it is not mentioned in his report that the vehicle passing through Jaunpur-Mirzapur road use to halt briefly at the petrol pump and also to the IO he could not explain. He further failed to explain in the omission of the spot from where they had seen the rest of the incident to the IO why it is not mentioned in his report that the vehicle passing through Jaunpur-Mirzapur road use to halt briefly at the petrol pump and also to the IO he could not explain. He further had failed to explain the omission to IO that the people of his village use this pagdandi to reach the road in front of the petrol pump to catch a conveyance for going onwards. It is neither written in the report nor disclosed to the IO. He failed to explain why in his report and in his 161 Crpc statement it is not written that the road starts from the pumping set and culminates on the main road passing in front of the petrol pump. He has denied that he is making all these statements in Court on being tutored to make probable his presence at the nearest point of the petrol pump. Admittedly the site plan was prepared at the instance of him and Sunil Singh but the place where quarrel with Sunil took place was not shown to the IO. He could not explain why the place from where Prabhakar and Karunakar exhorted his companion to shoot at Rajesh Singh and Brijesh Singh was not shown in the site plan and in his statement to the IO. He also did not explain why in his statement to IO there is no mention of any invitation card and the fact that Sunil Singh left his house at 8 a. m. for Gutwan to invite his Bua. He has denied the defence suggestion that story of Nimantran was introduced subsequently to add strength to Sunil Singh's presence. He has denied that the invitation card was got printed after the incident. He admitted that in Ext. Ka-1 at two places where the stamp of the center is there is no initial of the Deputy Controller of the Examination Center. He admitted that it was received by him before he started to proceed for the correction of the answer book-set the center. He pleaded ignorance whether he had shown it to the IO or not. Ka-1 at two places where the stamp of the center is there is no initial of the Deputy Controller of the Examination Center. He admitted that it was received by him before he started to proceed for the correction of the answer book-set the center. He pleaded ignorance whether he had shown it to the IO or not. He is unable to explain as to why neither in his report nor in his statement to the IO this important fact of his going to correct the answer books at Nagar Palika College, Jaunpur is not written. He denied that Ext. Ka-1 in a fake paper. He has denied the suggestion that on the date of the incident he was not going to correct the answer books. He admitted that he had not disclosed in his report any enmity. It was not disclosed in his statement to IO because the I. O. did not ask him about the enmity. Then stated that he had told about it to the IO. He denied that this fact is now stated by him on being tutored. According to him he went to his sons after they had received gun shot injury. He found them dead, therefore, without exhibiting any emotion straight-away went to the police station. He cannot say whether any jam has occurred on the road or not as a consequence of the incident because he claimed that he left the place immediately. He went to the police station by a jeep. He prepared his report at the bus stand and if this has not been written in his statement under Section 161 Cr. P. C. he could not explain it. He gave his report to the Sub-Inspector. No statement of his was recorded there by IO. He directly went to the police officer with his report. He denied that he never went to the police station. He denied that this report was not written by him at the time it is alleged to be. He denied that without any report crime number alone was put in the General Diary on his oral information of the murder of his sons at the police station. He denied that the report was prepared later on after the police came to the spot and completed the formalities. He denied that without any report crime number alone was put in the General Diary on his oral information of the murder of his sons at the police station. He denied that the report was prepared later on after the police came to the spot and completed the formalities. He stated that shot was fired on him and Adya Prasad Singh from a distance of 40 steps from the western side. Northern boundary of the petrol pump is broken in the middle and the accused used it is a passage. People used to go for evacuation from this broken portion. No other customer was there at the time of the incident. An ambassador car was standing there. Whose it was not worked out at all. Whether any person was in it was not seen. No scooter was there is admitted to him. What happened then to the scooter of Sunil? No person other than the appellants were there at the petrol pump at that time. His statement and the statement of Virendra Singh were recorded during the day. Who were others whose statements were recorded at that time he could not disclose. No signature of his was taken as witness on any paper. Blood stained clothes, earth, spent cartridges were recovered by the Investigating Officer at about 2 p. m. They had shown the place of the occurrence to the Investigating Officer after 2.30 p. m. At the spot there were about 20-25 police constables and 5-7 Sub-Inspectors. Superintendent of Police was also there. INquest memo was prepared in his presence. Adya Prasad Singh did not sign the inquest memo. He did not know names of other signatories of the inquest memos. He is the same Adya Prasad Singh who was with him at the time of the incident. IN his presence Sunil Singh was not rescued from the show room of the petrol pump. He has also denied that this incident has not occurred in his presence. He has given out the name of Adya Prasad Singh in the earlier part of his statement. He has denied that a false case has been cooked up in collusion with the police in their own defence. He has also denied that this incident has not occurred in his presence. He has given out the name of Adya Prasad Singh in the earlier part of his statement. He has denied that a false case has been cooked up in collusion with the police in their own defence. He failed to confirm whether Superintendent of Police recovered the weapon lying near the dead bodies of the two victims and also of their companion and handed them over to the IO with instructions to use them against the appellants. He claimed that he had already gone to the police station when Superintendent of Police came to the spot, therefore, he cannot vouchsafe this fact. He denied that Prabhakar Pandey was not present at the petrol pump. He denied that Karunakar Pandey has gone to ease at the relevant time. He claimed to have written this fact that Sunil Singh came from the chak road to the petrol pump. He failed to explain this omission in his report as well as in his statement recorded under Section 161 Crpc. He further failed to explain the omission that he had heard the alarm of Sunil Singh coming from the petrol pump at about 8.10 a. m. in his report as well in his statement to IO. He had admitted that in his report word "ghasitey" (dragging) was not used by him for Sunil Singh. He did not remember whether it was disclosed to the IO or not. He had not recorded in the first information report that he and Adya Prasad Singh ran pleading with the assailant not to assault Sunil Singh. He claimed that they ran saying "han han" to the petrol pump. They ran from the north side. They ran hardly 4-5 steps. It shows that he was not in front of the petrol pump. Rajesh Singh and Brijesh Singh came from the south side of the part when the assailants exhorted to kill the deceased persons. They were 4-5 steps from the park when they received gun shots. They were on one motorcycle. Then he stated that when the shot struck them Brijesh Singh alone was driving his motorcycle and Rajesh was running behind it. Rajesh Singh was 12 steps south from the northern corner in the west. He reached Mariyahun Police station at about 9.15 a. m. He took 7-8 minutes in preparing the written report. They were on one motorcycle. Then he stated that when the shot struck them Brijesh Singh alone was driving his motorcycle and Rajesh was running behind it. Rajesh Singh was 12 steps south from the northern corner in the west. He reached Mariyahun Police station at about 9.15 a. m. He took 7-8 minutes in preparing the written report. Head Moharrir was writing the report at about 9.30 a. m. He completed writing of the report by 10 a. m. He did not see the Sub-Inspector at that time at the police station. Prabhakar Pandey was demanding land from them in 1988. From Jaunpur at a distance of 12-13 Kms. on Jaunpur Mirzapur road his land is. He did not know the exact area of his land. He also did not know its number. From Pali Bazaar his land is within 12 kms. He denied that he has no such land. According to him it is grove land but there is no tree. IN the revenue papers it is not shown as grove land. He denied that he could not tell the number of the land because there is no such land in his name. He denied that Prabhakar Pandey did not ask for any land from him. He has also denied that there is no public drain at the petrol pump. On a close scrutiny of the evidence of this witness we find that from the stage of filing of the first information report till his 161 Crpc statement this witness had not disclosed that most relevant details. He had not suffered any injury despite the fact that firing on him and his companion Adya Prasad Singh was alleged. Use of a licensed gun was alleged in the offence. Shooting on him was resorted to from 40 steps. It is difficult for us to accept his version that he or his companion both escaped unhurt. His version that he had immediately rushed to the police station without even spending a minute's time with his sons is a highly unbelievable circumstance. Two of his sons had lost their lives in front of his eyes and still he was capable to keep his composure and rush to the police station with this great haste is most uncommon. A father whose sons were lying in a pool of blood will possibly break down in all likelihood. Two of his sons had lost their lives in front of his eyes and still he was capable to keep his composure and rush to the police station with this great haste is most uncommon. A father whose sons were lying in a pool of blood will possibly break down in all likelihood. It is beyond conceived as a matter of fact, that he did not verify whether any one was still alive. He did not even their nerve. He stopped at the bus stand to write down his report is yet another circumstance that create serious doubt in our mind regarding the authenticity of this fact. Non- accompanying of his companion Adya Prasad Singh to the Police Station is also a circumstance that strengthened our doubt in the veracity of his statement. Even the appointment letter produced in the Court Ext. Ka-1 is a highly doubtful document. Admittedly, it does not bear the signature of the Deputy Controller, Examination Centre or the appointing authority. It makes it difficult for us to accept that he and Adya Prasad Singh were together going to correct the copies to Jaunpur. He received the letter of his appointment as an examiner of the Board's answer books before the incident, is also a highly doubtful circumstances. Neither Center Controller nor any officer from U. P. Board was examined to prove it. From his evidence is apparent that his house is at a considerable distance from the main road. He was unable to explain how the two deceased came on the motorcycle to the spot. If the story of firing on the informant is doubted by us then there remains nothing for the two deceased to be at the petrol pump. His inability to deny or respond to the defence suggestion that Superintendent of Police has arrived at the spot and picked up the weapons from near the dead bodies of the two deceased persons and gave them to the police inspector with a direction to use them against the appellants creates serious doubt in our mind regarding the manner of assault. He had admitted that when he returned from the police station to the spot Javed Ahmad, Superintendent of Police, was present there and in his presence inquest memos were prepared. He and his companion Adya Singh are a signatory of these memos. He initially denied his signing it. He had admitted that when he returned from the police station to the spot Javed Ahmad, Superintendent of Police, was present there and in his presence inquest memos were prepared. He and his companion Adya Singh are a signatory of these memos. He initially denied his signing it. The fact that even the existence of the chak road by which he claimed to have come to the man road was also rendered highly doubtful by his subtle cross examination. As a matter of fact serious doubt has crept in our mind regarding the existence of any such pagdandi (bye lane ). It will not be easy for him to reach the spot and witness the incident if there existed no such lane. He had disclosed positive distance from the Bhita. His claim that he had some land sale of which was requested by the appellant, at half km. away from the petrol is not established beyond reasonable doubt. No documentary evidence was filed to prove this fact by the prosecution side. The property is not in his name is an admitted fact. The property exists in the name of his and some other coparceners. No other co-parcener was produced to establish that Prabhakar Pandey approached them to sell this property. It proves the falsity of this assertion. This is one limb of the motive, which has not been established by the prosecution by any reliable evidence. The other limb of the motive that the appellants have dispatched the drain by throwing mud into it to prevent the flow of their water is also not proved. If no such drain existed then the question of its filing and their offering any resistance to the same does not arise. It has not been shown in the site plan. Failing to show the same in the site plan is also a circumstance running against the prosecution on this limb. IN our opinion motive has not been proved at all. Two kinds of motive were asserted by the prosecution. As a matter of fact no had blood between the parties was in existence. The informant and other collateral of his have small and heavy vehicles and the petrol for at these vehicles was purchased from this very petrol pump. If there was any bad blood why he and his other relatives would take petrol from this petrol pump. As a matter of fact no had blood between the parties was in existence. The informant and other collateral of his have small and heavy vehicles and the petrol for at these vehicles was purchased from this very petrol pump. If there was any bad blood why he and his other relatives would take petrol from this petrol pump. If there was any such bad blood it is most likely that they must have avoided visiting this petrol pump. Therefore, the above said conduct of this witness eliminates both limbs of the motive. Over promptness of the report is creating serious doubt in our mind in the circumstances adverted to above. His 161 Crpc statement was recorded at the police station. He did not say that any police officer or policemen left for the spot during his presence at the police station. He himself did not accompany the police to the spot. How the police was present there when he returned to the spot is not discernible from any evidence brought on the record. 10. COMING to the pathway from which he claimed to have come to the main road, Mirzapur-Jaunpur road, a pagdandi. He claimed that he had shown this pathway to the IO and had also told him that they had come in front of the pump by this pathway. It is nether written in the first information report nor in his statement under Section 161 Crpc. It is also not shown in the site plan. Thus, the statement made by him that he came by this particular bye lane is rendered highly doubtful. Its existence has been very seriously challenged by the defence and the failure of the prosecution to prove its existence leads us to an inference that no such pathway existed from his house to the main road as alleged by this witness. It is admitted to him that a metalled road coverages on the highway about a furlong away from the Bhita. Bita itself is not adjacent or contiguous to the petrol pump. Admittedly it is 1/2 km. Thus the failure of the prosecution to prove the existence of another pathway (pagdandi) that connects his village with the highway running in front of the petrol pump eliminates completely his presence at the spot at the relevant time. Bita itself is not adjacent or contiguous to the petrol pump. Admittedly it is 1/2 km. Thus the failure of the prosecution to prove the existence of another pathway (pagdandi) that connects his village with the highway running in front of the petrol pump eliminates completely his presence at the spot at the relevant time. Even if his going to correct the copies to Jaunpur is accepted by us then he is likely to come out at a place far remote from the frontage of the petrol pump. None of the independent witnesses including Adya Prasad Singh were produced by the prosecution to establish the existence of a pagdandi as alleged by this witness. No map of the village was brought on record in this connection. This change was introduced during trial to ensure his presence. He admitted that he had not shown the spot from where he and Adya Prasad Singh heard the voice of Sunil Singh who was at that time at the petrol pump. He had also not shown that spot from where Sunil was beaten and dragged to the show room. He further admitted that he had not shown that spot from where they ran and asked the appellants to desist from assaulting Sunil Singh. He had also not shown to him the place from where Pushkar Pandey opened fire on them. This fact is not in his statement as well. He was unable to offer any explanation for the omission of these facts. It is admitted that the site plan was prepared on his and Sunil Singh's instructions by the IO. He also admitted that he had not shown to IO the show room where Sunil Singh was lodged by the appellants. Sunil Singh might have shown it to him. Then he said that he had seen Sunil Singh being taken in the show room of the petrol pump. He had admitted that in his report he had not written that he was going to examine the Board's answer books to Nagar Palika Inter College, Jaunpur. It is not in his statement under Section 161 Crpc also. He failed to offer any explanation for its omission. He had admitted that he did not write the fact of enmity and since the IO had not enquired it from him he did not tell this fact to him as well. It is not in his statement under Section 161 Crpc also. He failed to offer any explanation for its omission. He had admitted that he did not write the fact of enmity and since the IO had not enquired it from him he did not tell this fact to him as well. He again said that he had told to the IO but failed to offer any explanation why this fact was not written by the IO in his statement. He admitted that he had not sent any application to any authority in connection with his enmity with these appellants. He stated that after seeing his sons lying dead he proceeded to the police station instantly. He claimed that he had gone to the police station on a jeep. Whose jeep it was is not available from his statement. He prepared the report at the bus stand as earlier discussed. He claimed that this fact was disclosed to the IO by him and if it is not there he could not explain it. According to him the IO was present at the police station but no enquiry was made from him. He denied that he had not gone to the police station at 9.15 a. m. and till then no report was ready. He had further admitted that when firing was made on his sons Brijesh Singh was driving the motorcycle and Rajesh Singh was running behind him. This fact was adverted to by him for the first time during trial to explain the presence of the two dead bodies separated by several steps from each other. Had both been on motorcycle and sustained injuries while it was moving then the dead bodies should have been side by side. The first information report is shown to have been registered at 9.10 a. m. From his statement it is apparent that he reached the police station at 9 a. m. and prepared the report within next 7-8 minutes. The Head Moharrir had commenced preparing the check report at about 9.30 a. m. and it was completed at about 10 a. m. He did not see the Sub-Inspector at the police station at the time of preparation of the report of thereafter. The Head Moharrir had commenced preparing the check report at about 9.30 a. m. and it was completed at about 10 a. m. He did not see the Sub-Inspector at the police station at the time of preparation of the report of thereafter. These are some other circumstances which creates doubt in the lodging of the report at about 9.10 a. m. These circumstances when clubbed together lead to the only conclusion that neither he nor Adya Prasad Singh were present at the spot when the incident had occurred. Sudden reaching of the two deceased at the petrol pump leads to a different conclusion that they have reached the spot on receiving some information from some other source. In the circumstances presence of the two immediately thereafter is capable of leading the Court to a conclusion that the incident had not occurred in the manner alleged by the prosecution. This is why he had not come forward with any ostensible explanation for not disclosing some fairly important and significant facts of the case upto the stage of 161 Cr. P. C. These omissions are material improvements and tangibly affect the reliability of this witness. His presence at the spot at 8.10 a. m. becomes wholly improbable. It could be accepted only if we approach his evidence with a vision that is blurred by the weight of it being a double murder. From his evidence it is very clear and evident that he was not there. An aged father who is also a teacher suddenly came across the killing of his two sons in cold blood will find find this spines chilled and frozen. He will become dumb found totally. But we find here in this case that he conducted himself in such a calculated cool and calm that it leaves an impression that he was not a human being but either inhuman or a rebut. Arrival of the police force on the spot and rescue of Sunil Singh by 9.30 a. m. creates serious doubt in our mind about the authenticity of the story contained in it. His stopping at the bus stop to prepare his report etc. are material circumstances that negative the existence of the first information report at the relevant time. Thus we find it difficult to hold that PW-1 was present there at the time of incident. 1. His stopping at the bus stop to prepare his report etc. are material circumstances that negative the existence of the first information report at the relevant time. Thus we find it difficult to hold that PW-1 was present there at the time of incident. 1. SUNIL Singh PW-2 being an injured witness is a sturdy thorn in the skin of the defence. His evidence is to be examined very closely by us. He claimed that he knew the owner of the filling station facially as well as by name from before. He claimed that he along with his relations used to visit this petrol pump and on all such occasions conversation used to take place between them. He tried to prove that marriage of his brother was to take place on 26-5-1994 and he had come to the house of the informant to invite them to attend the marriage on 23-5-1994. He came to village Singulpur first and invited his Bua and thereafter he came to the village of deceased Rajesh at about 4.30 or 5 p. m. He gave an invitation card to Raj Narain Singh. He proved Ext. Ka-3 and Ka-4, which are the invitation card and its envelope. He has further stated that invitation card is the same which he gave to Raj Narain Singh. On 24-5-1994 he had also asked Raj Narain Singh about the Bidai of his sister. He informed him that he will send her later on. He stayed here during night. Next day in the morning he left Subhashpur at about 8 or 8. 15 a. m. After driving a little distance he found that petrol has come on reserve in his scooter. He came to Dharamraj Filling Station to take the petrol. He further stated that when he started from the house of PW-1 he also left his house to go to examine the copies. They went through Pagdandi (lane ). They emerged out on the road in front of Dharamraj Filling Station on the highway to catch the bus. He reached first at the petrol pump. He asked for petrol from appellant Prabhakar pandey. He told him that there is no petrol. Then he made a request. Prabhakar Pandey told him that he will charge Rs. 50 for a liter. He enquired from him why he is selling petrol on such an exhorbitant rate. He demanded a receipt. He reached first at the petrol pump. He asked for petrol from appellant Prabhakar pandey. He told him that there is no petrol. Then he made a request. Prabhakar Pandey told him that he will charge Rs. 50 for a liter. He enquired from him why he is selling petrol on such an exhorbitant rate. He demanded a receipt. Prabhakar started abusing him. He told him that if you do not want to give petrol its alright but stop hurling abuses. His brothers Karunakar Pandey and Pushkar Pandey came out of their show room and they started assaulting him. They tried to drag him to inside the show room. When they tried to drag him into the show room he heard voice of Raj Narain Singh and Adya Prasad Singh. The appellants lodged him inside the show room after giving him a beating. Its walls being of transparent fiberglass so from inside the show room every one out side was visible to him. He found that Raj Narain Singh and Adya Prasad Singh are running to the petrol pump Pushkar Pandey asked Prabhakar Pandey to pick up the gun so that they may be done away with. Pushkar Pandey loaded the gun. Karunakar Pandey and Prabhakar Pandey were empty-handed. The show room was bolted form out side. He noticed that Pushkar Pandey opened fire upon Raj Narain Singh. Both Raj Narain Singh and Adya Prasad Singh were together. They escaped the shot and ran back towards the road. At this very moment Brijesh Singh and Rajesh Singh reached the filling station on a Rajdoot motorcycle. They reached near the filing site from where they used to take petrol. They saw that Prabhakar Pandey and Karunakar Pandey to shoot them also. Pushkar Pandey fired twice. Both Rajesh Singh and Brijesh Singh died on the spot. When Raj Narain Singh and Adya Prasad Singh moved towards the deceased persons Pushkar Pandey again opened a fire. Thereafter all the three entered into the show room. After going inside the show room they said let us kill him also. He touched their feet and requested to spare his life. Prabhakar Pandey then took out a pistol from his pocket and placed the same in the drawer of the show room. He took out a revolver form the same drawer. He told him that there is a fired cartridge and five live cartridges in it. He touched their feet and requested to spare his life. Prabhakar Pandey then took out a pistol from his pocket and placed the same in the drawer of the show room. He took out a revolver form the same drawer. He told him that there is a fired cartridge and five live cartridges in it. Prabhakar Pandey left the place of occurrence saying that he is going to inform the police on telephone. Prabhakar Pandey after opening the side door left the spot. Prabhakar has told the remaining two appellants that till the police did not come do not surrender to anyone. There was commotion out side. Large gathering was there. The remaining two appellants were repeatedly keeping the gun and revolver near his ear and were challenging also that if anybody would come near them he will also he shot at. A little thereafter the police arrived at the petrol pump. Seeing the police Pushkar Pandey and Karunakar Pandey tried to run away, the police arrested them with country made pistol, revolver and cartridges. The police had taken him out from the show room. Kamta Maurya and Santosh Singh also entered the show room with the police. None of them are examined. The policemen brought him to the police station and from there to Mariyahun Hospital where his injuries were examined. He was brought by the police to the spot after his medical examination. The police officers who were present there enquired form him bout the incident. He gave them the details of the incident. He was medically examined at 1.30 p. m. He was sent from the police station for medical examination within half an hour on his coming there. He was taken by a constable whose name is not known to him. He came to the police station at about 11 or 11.15 a. m. From the place of the occurrence he was sent on a jeep to the police station. He did not remember whether any paper was given to him at the spot by the police officer. From the police station memo was sent for his medical examination to the doctor by Head Moharrir. He came back to the place of the occurrence at bout 2 or 2. He did not remember whether any paper was given to him at the spot by the police officer. From the police station memo was sent for his medical examination to the doctor by Head Moharrir. He came back to the place of the occurrence at bout 2 or 2. 15 p. m. He was taken out from the room where he was lodged at about 9.30 a. m. No statement of his was recorded by the police when he was taken out from the show room. His statement was recorded at about 2 or 2.30 p. m. when he returned from the hospital. He admitted that he had not gone to the counter for any payment and for obtaining a slip for taking petrol. Prabhakar Pandey was standing near the pump. Altercation took place with him there. His brother came out after the altercation began. They assaulted him with hands. He has suffered 3-4 injuries on his right hand. His clothe was torn. He had shown the spot where scuffle had taken place and the place where his scooter was standing to the IO. He had also shown that place from where Karunakar Pandey and Pushkar Pandey came out. He had also shown the passage through which he was dragged into the show room. The spot where he was lodged was shown to the IO. The IO has not shown the above said spots in site plan. He did not offer any explanation for the omission of the same. He was lodged in the office for about 45 minutes. When he for the first time saw Raj Narain Singh and Adya Prasad Singh they were at a distance of about 50-55 steps from him. When fire was made on them they were about 48-49 steps away from them. He claimed that he had shown that spot to the IO where Adya Prasad Singh and Raj Narain Singh were present at the time of firing on them. He also claimed that he had shown to the IO the spot from where Prabhakar Pandey called his companion to fetch his gun and shoot. He has also shown the place where Adya Prasad Singh and Raj Narain Singh were present after the deceased were shot at. This spot was also not shown by the IO in the site map. He did not offer any explanation for this omission. He has also shown the place where Adya Prasad Singh and Raj Narain Singh were present after the deceased were shot at. This spot was also not shown by the IO in the site map. He did not offer any explanation for this omission. When he was taken out from the show room Raj Narain Singh and Adya Prasad Singh were not at the petrol pump. When he returned to the petrol pump it was noon. Only an ambassador car was there. The IO has rescued him from the show room. The IO remained inside the show room when he was sent to the police station. After his departure what was done by the IO inside the show room is not known to him. He did not remember whether the floor of the petrol pump is commented or rough and muddy. No signature of his was taken on the recovery memo of the scooter. Scooter was given in the custody of Bhanu Pratap Singh. He did not remember the time when this memo was prepared. He did not have any papers of his scooter. He denied that he has no scooter. He also denied that recovery memo regarding the scooter is an ingenious document. He also denied as incorrect that he did go to the petrol pump nor was be assaulted there and lodged in the show room. He also denied as false that he was not taken out of the show room. He stated that he did not remember whether he told the IO that he often used to visit the house of Raj Narain Singh and stay there for about 2 to 4 days. During his stay used to visit Shitlanganj Bazaar, Mariyahun and Pali Bazaar. He stated to the IO that in village Subhashpur in the east of Jaunpur Mirzapur road Raj Narain Singh and his collaterals have their chaks and there is a pumping set also there. This fact has not been written by the IO in his statement. He cannot offer any explanation for the omission of this fact. There is habitation he claimed in the east of the pumping set. He cannot offer any explanation for its absence in his 161 Crpc statement. This fact has not been written by the IO in his statement. He cannot offer any explanation for the omission of this fact. There is habitation he claimed in the east of the pumping set. He cannot offer any explanation for its absence in his 161 Crpc statement. He claimed that he has told the IO in his statement that he had gone to Dharamraj Filling Station for taking petrol in his motorcycle on number of occasions and if this fact is not there he cannot offer any explanation for the same. It is also not in his statement that whenever he visited Raj Narain Singh's house he used to go and catch the bus for his conveyance from this Dharamraj Filling Station. He failed to offer any explanation for its omission. He could not explain the omission of the fact that Prabhakar Pandey, Pushkar Pandey and Karunakar Pandey were known to him from before in his statement to IO. He denied that he did not know the appellants from before or he did not know them at all. He denied making this statement to the IO that the person whose name later on was known as Prabhakar Pandey. If this fact that he knew the appellants from before is not in his statement he cannot give any reasons for its absence. He admitted that the fact that the marriage of his brother was to be solemnised soon and in that connection he went to the house of his Bua to extend the invitation and from there he has gone to the house of his sister and reached there at about 4.30 p. m. and gave invitation card to Raj Narain Singh is not available in his statement made to IO. He did not give any explanation for omission of the same. He denied that he has stated this fact in the Court for the first time on being tutored. He also could not explain the absence of the fact that he requested Raj Narain Singh to send his sister with him to the IO. He claimed that he had told the IO that in the morning at about 8 a. m. he started from Subhashpur. After moving a little he came to know that the petrol is in reserve then he turned back to Dharamraj Filling Station for taking petrol. He claimed that he had told the IO that in the morning at about 8 a. m. he started from Subhashpur. After moving a little he came to know that the petrol is in reserve then he turned back to Dharamraj Filling Station for taking petrol. If it is not there in his statement to IO he cannot give any explanation. He denied that this fact is stated in the trial Court for the first time on being tutored. He claimed that he had told the IO that when he started from the house of Raj Narain Singh he also came out to go for correction of the examination copies by the Pagdandi. If this fact is not there in his statement under Section 161 Crpc he known no reasons for it. He denied that this fact has been stated by him for the first time to bolster his presence. He stated that he has told the IO about the fact of his challenging the exhorbitant price of petrol and sought a receipt. If this fact is missing in his statement to IO he is unable to give any explanation for the same. He has further stated that he told the IO that when the deceased persons sustained injuries and fell down Raj Narain Singh and Adya Prasad Singh reached there. It was Pushkar Pandey who made a fire on them. It this is not in his statement recorded by IO he has no explanation to offer for the same. He has denied that he was tutored. He denied that in district Jaunpur after obtaining Parchi petrol is taken. Himself stated that since Prabhakar Pandey was accepting the price and distributing the petrol, he did not go to the counter. Meaning thereby that such a system was in vogue in the region. He had taken petrol without any slip but this is belied from his examination-in-chief. He denied that the shop keepers of the area were under the terror of Rajesh Singh and Brijesh Singh. They do not make payment for their purchase. He could not confirm the fact that the statement of Adya Prasad Singh and Raj Narain Singh were recorded before or after his statement by the IO. He denied that the shop keepers of the area were under the terror of Rajesh Singh and Brijesh Singh. They do not make payment for their purchase. He could not confirm the fact that the statement of Adya Prasad Singh and Raj Narain Singh were recorded before or after his statement by the IO. He denied the fact that this report was written in consultation with the family members of Raj Narain Singh and the Sub-Inspector and he took that report with him to the police station. He denied the defence suggestion that on 24-5-1994 in the morning Brijesh Singh was forcibly trying to take petrol without making payment and on being told that there is no petrol he snatched the Nozzle from the servant and started taking petrol. He also denied that Nozzle was snatched from Brijesh Singh by the servant who also pushed him aside. He denied that Brijesh Singh thereafter started hurling abuses. It is denied that Brijesh Singh went back threatening that he will soon return with Dum Dum (Rajesh Singh) and teach them a lesson. He further denied that soon thereafter Brijesh Singh and Rajesh Singh came there with Kattas. He denied that he along with them also came on the same motorcycle at the petrol pump. He denied that there were other boys armed with Kattas and bombs. They entered into the compound and launched an attack. He also denied that the deceased called his companion to loot the pump. He denied that glass in the east of the show room cracked from the fire of Rajesh Singh and Brijesh Singh. Others were hurling bomb. They entered into the show room and started committing loot and denied that any cash was looted. Brijesh Singh and Rajesh Singh were fired only when they were aiming at the appellant in exercise of their right of defence of person by the accused. He is a graduate. He did his graduation in the year 1991. Presently he is engaged in gas agency business. He stated that on the eastern side in front of the petrol pump just by the side of the road there is a pond. Around this pond surface is about 4-5 feet high. From this higher surface (Bhita) pumping set is at a distance of one furlong on the east. There is a park near the petrol pump at a distance 5-6 steps from if. Around this pond surface is about 4-5 feet high. From this higher surface (Bhita) pumping set is at a distance of one furlong on the east. There is a park near the petrol pump at a distance 5-6 steps from if. From this side for an entry into the petrol pump in the north-south there is a pathway. He admitted that there is no scooter or motorcycle in his name. He did not have any licence for two wheelers. When he started from the house Raj Narain Singh was about to leave. Brijesh Singh was employed in PAC Rajesh Singh was MSc, LLB and was doing his business. When he was talking with Prabhakar Pandey at the petrol pump the other two appellants were inside the office and when they came out they were empty handed. When he heard the voice of Raj Narain Singh he was near the door of the show room. He could not see Raj Narain Singh and Adya Prasad Singh because they were on his back and the appellant were assaulting him. Both Karunakar Pandey and Prabhakar Pandey exhorted Pushkar to fire at Raj Narain Singh and Adya Prasad Singh. Pushkar Pandey took out his gun and loaded it. Petrol pump is about 20-21 steps from the show room. When fire was made on them they were at a distance of about 16-17 steps from the petrol pump in the east. Earlier he had stated that the distance was 40-45 steps. The shop of Ashok Yadav was 26-27 steps in the north. At the time of exhortation Prabhakar Pandey and Karunakar Pandey were 14-15 steps away from the show room. Brijesh Singh was first hit. Both suffered gun shot injuries simultaneously. There was no time gap. Before the second fire was made a fire was already made from it. He denied his statement to the IO that Pushkar Pandey discharged two fires from his gun and again made one fire after reloading it. Both the deceased fell down on the spot and died. How this statement was written by the I. O. he could not explain. 3-4 minutes after falling of the deceased persons Prabhakar Pandey left the place. No person entered the petrol pump compound after firing and before the arrival of the police. Earlier he had said that there was a large gathering. How this statement was written by the I. O. he could not explain. 3-4 minutes after falling of the deceased persons Prabhakar Pandey left the place. No person entered the petrol pump compound after firing and before the arrival of the police. Earlier he had said that there was a large gathering. When police came to rescue him two appellate Pushkar Pandey and Karunakar Pandey still had the weapons in their hands. None of them tried to fire on him or the police personnel. When the police reached inside the show room the appellants withdraw their guns from him. None of the appellants made any attempt to run away on the arrival of the police from the spot. He explained that Katta of. 315 bors had a barrel smaller in diameter than a 12 bore Katta. When Prabhakar Pandey was taking out Katta from his packet he has seen its chamber. Then stated that only Katta was seen. It was so said because he cannot see the chamber unless it is given in hand. His father was a police inspector and is living with him. Talks between them about Katta and revolver often take place, therefore, he knows the distinction between them. He did not remember whether the gun which was used had its barrel side by side or up and down. Then he stated that every DBBE gun that he had seen had its barrel side by side. He has stated that the paper sent to the doctor for his medical examination was not brought back at the police station after his examination. He came straight from the hospital to the spot. Prabhakar had no weapon while he left. He did not remember whether people from the vicinity of the petrol pump came to the spot. He admitted that since that day he had never visited village Subhashpur. He had denied that after the cross- examination on 18-2-1995 he visited that spot and measure the distances in foot steps. 12. THUS, from his statement following facts are apparent that he was assaulted with hands. He has suffered abrasion, and two reddish contusions one on right fore arm and other on left side back. Abrasion in just below the right elbow. He had not provided to the I. O. in his statement any relevant details of the incident as given by him now. He has suffered abrasion, and two reddish contusions one on right fore arm and other on left side back. Abrasion in just below the right elbow. He had not provided to the I. O. in his statement any relevant details of the incident as given by him now. The fact of his giving an invitation card to Raj Narain Singh and his asking for the bidai of his sister and Raj Narain Singh talking him that she shall later on are not mentioned in his statement to I. O. He was taken first to the police station and thereafter sent for medical examination which was conducted at about 1. 50 p. m. on 24-5-1994. He was recovered from the show room admittedly at 9.30 at a. m. and was promptly sent to the police station but reached the hospital very late. There is enormous delay in his medical examination. No explanation has come from the side of the prosecution for this undue delay. No statement of his was taken by the police officer on the spot before he was sent for his medical examination. He was sent for medical examination with an abnormal urgency though his injuries were most insignificant in nature. Admittedly he had not gone to the counter to obtain the parchi for taking petrol. To appreciate his evidence we find many facts in the statement of P. W. 1 Raj Narain Singh not mentioned, which are stated by this witness. Admittedly, the other two appellants were not having any weapons when they came out from the petrol pump and participated in the souffle and dragged and lodged him in the show room. No blood has come out of his injuries. He has not shown the spot from where he was dragged to the show room nor the spot where he had a scuffle with Prabhakar Pandey. Admittedly, he and Raj Narain Singh got the spot inspection memo made by the I. O. Many of the facts now stated were not disclosed in the site plan. Relevant as well as important facts have not been disclosed in the site plan. They do not know whether floor of the petrol pump is carpeted or is made of red mud and concrete. The scooter did not belong to him. Its owner has not been examined nor named. It was given to him but to one Bhanu Pratap Singh. Relevant as well as important facts have not been disclosed in the site plan. They do not know whether floor of the petrol pump is carpeted or is made of red mud and concrete. The scooter did not belong to him. Its owner has not been examined nor named. It was given to him but to one Bhanu Pratap Singh. He claimed that it was taken from the house of his Bua he has gone to serve the invitation there. This fact is contrary to the statement of Raj Narain Singh. According to him he was going from his house of extend the invitation card to his Bua. His failure to disclose to the I. O. this fact is very material. Admittedly, he did not has any two wheelar nor possess any driving licence. His statement to the I. O. indicates that he was not knowing any of these appellants from before as now alleged by him. His failure to give out that there was marriage of his brother and in that connection he left his house to distribute the invitation card has rendered highly doubtful his arrival by its omission to I. O. He claimed that he has first gone to the house of his Bua and thereafter came to the house of his sister and reached there at about 4.30 p. m. He had talked Raj Narain Singh and gave him the invitation card all are missing in his statement to I. O. Further omission of the fact that he requested Raj Narain Singh for the bidai of his sister is such an omission which creates serious doubt about his arrival a day before in the evening in village. Subhashpur. He is brother-in-law of Rajesh Singh, therefore, he has been planted as a witness in the case cannot be easily discarded. His failure to disclose to the I. O. that Raj Narain Singh was about to start to go to correct the copies is also an important omission. According to his statement both the deceased fall down near the petrol pump but their bodies were found at some distance from each other. It was nearer the show room instant of the pump. It is also strange that he was sent for the hospital at 9.30 a. m. According to the statement of Raj Narain Singh at that time he was present in the police station. It was nearer the show room instant of the pump. It is also strange that he was sent for the hospital at 9.30 a. m. According to the statement of Raj Narain Singh at that time he was present in the police station. This boy was sent by a jeep to the police station, which is at a distance of 7 kms. It hardly would take 10-12 minutes to reach the police station. The police had arrived at the place of the occurrence in some other manner. In all probability as admitted by this witness Prabhakar Pandey while leaving the show room told his brother that he is going to inform the police on telephone and in all probability on this information police came to the spot. This probability is writ large in the case from the circumstances. The entire version seems to have been cooked up by suppressing the real fact giving rise to the incident. A suggestion to this witness was given that under the direction and guidance of the Superintendent of Police every thing was cooked up. The suggestions that those weapons were planted on the appellants are denied but the circumstances prove it otherwise. The weapons shown to have been recovered apparently were recovered from the possession of the deceased and were planted on them in the circumstances on record become highly propble. Thus, despite the fact that there are injuries on his person we are doubtful about the authenticity and truthfulness of his statement regarding the genesis and manner of assault. The presence of injuries may prove only persons of the injured but is no guarantee to the truthfulness of his statement made in Court. 13. ALL the injuries are on the backside. The third inquiry is on the left side back 9 cm below lower scapulas. This is a peculiar discription of his injuries. It is not decipherable whether this injury was on the left side back or 9 cm below lower scapula. The fist two injuries are on the right forearm. He claimed that these injuries were caused to him while he was dragged by all the three persons to the show room. In that event there is every likehood that he must have been caught hold of by both the arms. There are complain of pain on right hip joint and on right knee joint. He claimed that these injuries were caused to him while he was dragged by all the three persons to the show room. In that event there is every likehood that he must have been caught hold of by both the arms. There are complain of pain on right hip joint and on right knee joint. These are the peculiar circumstances emerging from the medical evidence of his. Despite the fact that he was sent to the police station immediately (9.30 a. m.) by a jeep his medical examination took place at 1. 50 p. m. It is also a circumstances which attracts adversely the attention of the Court regarding genuineness of his injuries. The doctor had stated that his injuries cannot be of 7 a. m. but it may be of 7.30 a. m. The doctor said that if the slaps are given with enormous force these injuries are probable. No colour in the abrasion was noted by the doctor. He had admitted that because of non-noting of the colour of these injuries he cannot state its duration. But once injuries are noted "fresh" therefore, they are within 6-7 hours from the time of examination. He said that in the bruise colour does not appear immediately. It appears 2-3 hours afterward. Then he admitted that the colour on the contusion or bruise appears after 24 hours from its causing. The contusions admittedly were red in colour. No copy of the first informant report was produced before him. Out of total number of injuries sustained by the victim four are on the right side of his person. The probability that these injuries of Sunil Singh might be self suffered or suffered from friendly hands cannot be effectively ruled out. They could be suffered in a fell also. Their duration as fresh is also highly doubtful. 14. P. W. 3. Ramji Maurya is the only so-called independent witness. He has stated that ten months aged at about 8.30 a. m. this incident occurred. He was grazing his cattle near the Bhita. He said that Prabhakar Pandey was engaged in heated argument and beating of a young man who was present there with a scooter. All the three appellants were dragging him to the show room. He was locked therein. Raj Narian Singh in the meantime came on the road saying "han han". Adya Prasad Singh was also with Raj Narain Singh. He said that Prabhakar Pandey was engaged in heated argument and beating of a young man who was present there with a scooter. All the three appellants were dragging him to the show room. He was locked therein. Raj Narian Singh in the meantime came on the road saying "han han". Adya Prasad Singh was also with Raj Narain Singh. They ran towards the petrol pump. After lodging that boy in the office Pushakar Pandey came out with the gun and cartridges. By this time Raj Narain arrived saying han han. He reached the western Patri (feet path) of the main road. Viredendra Singh and Bhola Singh also reached the spot. On the exhortation from both the appellants Pushakar Pandey fired on Raj Narain Singh and Adya Prasad Singh. None of the two suffered any injury. They ran backwards for safety. In the meantime Rajesh Singh and Brijesh Singh too came there on a motorcycle. Prabhakar Pandey and Karunakar Pandey exhorted to kill them also. Pushakar Pandey appellant again fired from his DBBL gun. The two died on spot as a consequence to this shooting. One more fire was discharged by Pushakar Pandey after motorcycle fall down. No other person received any firearm injury from this fire. The accused persons again returned to the office. Thereafter, he saw that Prabhakar Pandey ran away from the back door. Pushakar Pandey and Karunakar Pandey started extending threats that if any one came to close he will also be fired upon. Karunakar Pandey was putting on the abdomen and scalp of Sunil Singh some thing like a pistol. Earlier he had admitted that he know very well about firearms. Both continued to threaten him also. They continuously remained in the show room with him. He clarified that from the officer he meant show room, which was covered by glass from all sides. From inside everything of out side was visible. Raj Narain Singh left for Mariyahun on a jeep. After half an hour or so of the departure of Raj Narain Singh police arrived at the scene of the occurrence. Police arrested Karunakar Pandey and Pushakar Pandey when they were trying to run away. Police went inside the show room where the boy was locked in. He did identify that boy. He was present in the Court. His name is Sunil Singh and claimed that he is a relation of Raj Narain Singh. Police arrested Karunakar Pandey and Pushakar Pandey when they were trying to run away. Police went inside the show room where the boy was locked in. He did identify that boy. He was present in the Court. His name is Sunil Singh and claimed that he is a relation of Raj Narain Singh. He further explained that on the date of the occurrence attraction took place between him and the appellants. Sunil Singh as taken out from the show room at about 2 a. m. . According to Sunil Singh he was taken out at about 9.35 a. m. Appellant Karunakar Pandey and Pushakar Pandey were arrested from inside the show room. It had hardly taken a minute or so in arresting them. This completely negatives the story that these appellants attempted to run away. It is further bailed from the fact that Prabhakar has already left the scene. If they had to run away on one would have stayed there. They had a stake in their petrol pump and cannot leave it to be burnt. Many members of the family of the deceased were already present there. If the petrol pump was completely abandoned it might have been damaged beyond repair. The appellants were kept inside the show room after their arrest by the police. The police took half an hour to complete the formalities of arrest and preparation of the relevant papers. They were taken out there after. He did not notice where they were taken away by the police. He did not notice whether any paper were prepared after Sunil Singh was recovered from their possession by the police. According to him when Sunil Singh was taken out he and Adya Prasad Singh, Bhola Singh and Virendra Singh were present there. Raj Narain Singh was not there. He did not go near the police after they were taken out. Adya Prasad Singh and other witnesses went gone to the police. He did not see that any one from the vicinity came to the spot. After completing formalities the I. O. went to the deadbody at about 11 a. m. He remained there for an hour. He did not go inside the show room again. He himself was present at the spot upto 12 O'clock. He did not see that any one from the vicinity came to the spot. After completing formalities the I. O. went to the deadbody at about 11 a. m. He remained there for an hour. He did not go inside the show room again. He himself was present at the spot upto 12 O'clock. He clearly stated that he was present there till the dead bodies were dispatched meaning thereby that the bodies were sent by them around 12 O'clock. He did not see whether Adya Prasad Singh and Virendra Singh told the I. O. that they had seen the occurrence. He disclosed to I. O. that he had seen the occurrence. He is singnatory to the inquest memos. According to him Raj Narain Singh and Adya Prasad Singh were the other singatories of it. The inquest memos did not contain any detail of the incident although the eyewitnesses were panch witnesses. When the dead bodies were dispatched he went to his house, so he could not see what the I. O. did. His house is 1700-1800 steps away form the house of Ran Narain Singh in the same village. He did not say anything about the clothes worn by Karunakar Pandey and Pushakar Pandey. sunil Singh according to him was wearing Pant and Shirt. This is also somewhat strange. He admitted that he has not seen the I. O. preparing any paper to send Sunil Singh for medical examination. But a policeman went with Sunil Singh. The I. O. did not enquire all along his presence about Ramjit Maurya. Adya Prasad Singh and Virendra Singh. He had not noticed Adya prasad Singh, Virendra Singh and Bhola Singh talking the I. O. that they had seen the occurrence. Sunil Singh was assaulted by hands. He was beaten for a minutes or two. He has noticed on injury on his person. He did not see any torn clothes of Sunil Singh. This contradicts Sunil Singh. Raj Narian Singh did not return with policeman to the place of the occurrence till he stayed there. He came to the spot two hours after the arrival of the police. He had not noticed Raj Narain Singh writing any paper on the spot. He had not seen him signing any paper as well. He is an illiterate person. He stated that he learnt that Superintendent of Police had come to the spot with force. He came to the spot two hours after the arrival of the police. He had not noticed Raj Narain Singh writing any paper on the spot. He had not seen him signing any paper as well. He is an illiterate person. He stated that he learnt that Superintendent of Police had come to the spot with force. It is a very crucial admission. According to P. W. 1 and P. W. 2 Superintendent of Police did not come to the spot. This patrol pump is there for the last 6-7 years. His statement was not recorded on 24-5-1994. On 25-4-1994 at the Gutwan Road police booth his statement was recorded by the I. O. at 8 a. m. He was called there by a policeman. He did not show that place where his cattles were grazing at the time of the incident. Fact that Raj Narain Singh desisted the accused persons from beating Sunil Singh is missing in his statement to I. O. He had himself also prevented them from doing so is also missing in his statement to I. O. He denied that he is deposing in the Court on being tutored. He further failed to explain how it is not written by the I. O. In his statement that both the deceased came on a motorcycle from the south and they fall down after receiving gun shot injuries from it. It is also not there that Pushakar Pandey fired one more shot after the deceased had fallen on the ground. He denied that he was stating these facts in Court on being tutored. He could not offer any explanation for the omission that Pushakar Pandey and Karunakar Pandey were threatening Sunil Singh or Karunakar Pandey was pressing the barrel of his pistol against his head and that he had noticed these things happening inside the show room from the glass. He further failed to give any explanation for the omission of the following facts in his statement that Raj Narain Singh left Mariyahun in a jeep after his sons sustained injuries, Karunakar Pandey and Pushakar Pandey were arrested and when the dead bodies were taken for post-mortem examination he left with his cattle for his house. He has three brothers who are living jointly. His cross-examination leaves an impression in our mind that his assessment of events is very poor. He has three brothers who are living jointly. His cross-examination leaves an impression in our mind that his assessment of events is very poor. He had admitted that cattles were withdrawn at 5 a. m. He admitted that in his presence Superintendent of Police with large force had arrived. He himself was not knowing the Superintendent of Police. He denied that Superintendent of Police recovered any weapons from the deceased and gave it to the I. O. to use them against the appellants. He also denied that the deceased and his companions had pistols and bombs. He had not seen the Sub-Inspector of Police there. He was afraid of the police so he did not go to him. He stated that he understands the meaning of compound. According to him adjacent to the road a circular area is there which is known as compound. He did not know the meaning of word "adeshit". According to him he gave his statement in his local dialect. The I. O. may have scribed the same in his own words. He could not give the colour of the paper on which Panchyatnama was written. Police booth is 200 steps away from the petrol pump in the south-north. He was called there at 8 a. m. for recording his statement by I. O. According to him Pali Bazar is 400-500 steps away. According to P. W. 1 and P. W. 2 Pali Bazaar is 4-5 kms. from the petrol pump. When police called him his statement he was in his house. Bhola Singh was summoned. No other witness was summoned by the I. O. on that day. His statement was recorded before Bhola Singh. He was to read over his statement by the I. O. He did not remember whether his signatures were obtained on his statement. He was unable to disclose how many hours after sunrise the incident occurred. In cross-examination his capacity to assess time was tested and he told it is 1 p. m. According to the Court's observation it was 1.30 p. m. He denied that it might have occurred half an hour later. He want to graze his cattle at about 6 a. m. He reached at the Bhita 2-4 minutes before or after 8 a. m. This shows that his capacity to observe time is very poor. This further shows that Bhita was at considerable distance. He want to graze his cattle at about 6 a. m. He reached at the Bhita 2-4 minutes before or after 8 a. m. This shows that his capacity to observe time is very poor. This further shows that Bhita was at considerable distance. He failed to give time of sunrise on that day. From the house of Raj Narain Singh petrol pump from the pagdandi is about 90 paces. In the vicinity of his house empty fields were lying. It is stated that the two deceased entered the petrol pump from the southern side of the park. They were 5-6 steps in the north when they suffered gun shot injuries. As soon as they entered into the patrol pump compound they were challenged. They were on a motorcycle when they sustained firearm injuries. The incident of assault was witnesses by him from near the compound. Rest of the incident was witnessed by him from near the park. When they were hurling abuses on Raj Narain Singh he was on the road. Raj Narain Singh was 13-14 paces away from his when the fire was discharged on him. They were in the north at that time. They did not run away. At that time Rajesh Singh and Brijesh Singh were at a distance of about 20 steps in the north. Appellant Karunakar did not exhort. He himself stated that all the three were in the north. Appellant Prabhakar Pandey was 20-21 steps away. They were separated by one or two steps from each other. The show-room was 20 paces from the place where Pushkar Pandey was and made first fire on Raj Narain Singh. This distance between the shooter and his target was somewhat 45-50 paces. He was unable to disclose whether the shot was fired after taking aim at Raj Narain Singh or fire was made only to deter him from coming close. He did not remember whether he had disclosed to the I. O. that three shots were fired on Rajesh Singh and Brijesh Singh after taking aim on them. He clarified that about ten months have lapsed so he did not remember. Brijesh fell near the motorcycle then stated that Rajesh Singh fell in south of the motorcycle then again stated that Rajesh was running to the south when suffered injuries. He ran two steps when shot hit him. He clarified that about ten months have lapsed so he did not remember. Brijesh fell near the motorcycle then stated that Rajesh Singh fell in south of the motorcycle then again stated that Rajesh was running to the south when suffered injuries. He ran two steps when shot hit him. Threats inside the show room was not audible from out side. By movement of the barrel it was understood that they were threatening Sunil. A pistol like thing was in the hand of Karunakar Pandey. He did not know Sunil Singh by name. He came to know his name only after the police came to the spot. When the I. O. recorded his statement he came to know the name of Sunil Singh. If it was not written in his statement by I. O. he cannot say anything. He cannot explain the omission of the presence of any scooter in his statement under Section 161 Cr. P. C. to the I. O. Thus, from the statement of this witness we find that his house is about 1700-1800 steps away from the house of the informant. Empty fields near his house were there and he had opportunity to graze his cattle in the vicinity of his own house. There was no occasion for him to drive his cattle for this purpose to Bhita. From his statement distance of Bhita appears to be long enough. The omission occurring in his statement such as the weapons that Karunakar Pandey was using to threaten; the fact that he had not disclosed to the I. O. many facts which were very relevant to test his veracity; the fact that he was not knowing Sunil Singh at the relevant time; the fact that according to him none was living in the vicinity of the petrol pump though it is clearly borne but from the statement of P. W. 1, the fact that Raj Narain Singh did not return to the spot till the time he was there i. e., 12 p. m. ; Sunil Singh was recovered from the show room at 9 a. m. raises many questions about his presence at the spot and truthfulness of the version given by him. No doubt, he is not an inimical witness but from the facts and circumstances it became clear to us that he is a got up witness. No doubt, he is not an inimical witness but from the facts and circumstances it became clear to us that he is a got up witness. Thus, we are not satisfied about the presence of this witness at the relevant time at the spot. His statement was recorded next day despite that the was available upto 12 p. m. His evidence further shows that he had no sanctity for truth. Every important detail of the incident is missing in his statement to I. O. Probability of his driving his cattle to Bhita is remote because there existed many vacant fields in the vicinity of his house. At one stage he claimed that he went back to his house with his cattle immediately on the dispatch of the dead-bodies to mortuary and at a later stage stated that he went back at 5 p. m. His statement that Karunakar Pandey continuously moved the barrel of his pistol on Sunil Singh and from it he gathered that he was threatening Sunil Singh which fact is not stated by Sunil Singh. According to him only one of the accused alone used the gun. No other weapon was used or even taken out or exhibited by these appellants. This rules out completely the presence of any weapon other than the licensed gun with these appellants. It leaves sufficient room to doubt these so called recoveries of other weapons from these appellants by police. Possibility of the recovery of these weapons from the deceased persons and their companions including Sunil Singh therefore is sufficiently strengthened. How he was attracted to the spot from the bhita before any shot was fired is also not made clear. 15. P. W. 5 is Constable Sunil Kumar Singh. He was constable clerk on the relevant date at the police station Mariyahun. He had proved the recovery memo of DBBL gun, a country made pistol, revolver and cartridges. He had prepared chick report of the first information report and recovery memo being in his own writing on 24-5-1994. It is Ext. Ka-8 on the record. He has admitted that he has not prepared the General Diary entry in his own handwriting regarding this case. He further admitted that he has not brought the General Diary of the police station in Court today, therefore, he cannot give any evidence with regard to the General Diary. It is Ext. Ka-8 on the record. He has admitted that he has not prepared the General Diary entry in his own handwriting regarding this case. He further admitted that he has not brought the General Diary of the police station in Court today, therefore, he cannot give any evidence with regard to the General Diary. He admitted that he had prepared the recovery memo on the instruction of the Sub-Inspector. He did not remember why after many days his statement was recorded by the I. O. 16. P. W. 6 is Constable Kalika Yadav. He was posted at Police Station Mariyahun on that date. He is the witness of the preparation of the inquest memos. The inquest memos were prepared in the presence of the Superintendent of Police and other witnesses. He asserted the dead-bodies for post-mortem examination to the mortuary, Jaunpur. He claimed that all the papers were deposited by him at the Police Station on the same evening. He did not remember exact time when he returned. He has admitted that his return is recorded in the General Diary but in which General Diary he did not know. Entries were made by Jit Bahadur Head Moharrir. He received the dead-bodies after about 2 p. m. Exact time of it he was not able to disclose. But he was precise that it was received during the day. He brought the dead-bodies straightaway to the hospital and had not taken it to any other place. The dead-bodies were handed over to the doctor at about 2.30 p. m. during the day. The post-mortem examination was commenced at 3 p. m. The dead-bodies were received by him at Shital Ganj petrol pump. He received only 26 papers for post-mortem examination. He denied that he has given the statement regarding the time of receipt of the bodies on being tutored. Normally the dead-bodies are taken to the head-quarter and from there after proper entry in the General Diary they are dispatched to the mortuary for post- mortem examination. In this case the dead-bodies were taken straightaway to the mortuary. Therefore this Court is unable to know the time of their receipt at the head quarter and the time when they were dispatched for mortuary from there. In this case the dead-bodies were taken straightaway to the mortuary. Therefore this Court is unable to know the time of their receipt at the head quarter and the time when they were dispatched for mortuary from there. Although the post-mortem examination commenced at 3.15 p. m. and concluded after 4.15 p. m. Admittedly according to this witness number of papers given to him were 7 only and not 26 as earlier alleged. According to the medical officer the injuries of Rajesh were suffered on his back meaning thereby that his back was exposed to the appellant. The prosecution case initially was that both the deceased were on motorcycle when they suffered injuries. This fact is further belied from the circumstances that the two dead-bodies were lying several paces away from each other. This heavily reflected on the manner as alleged by prosecution. No other injury was found on the person of any of the two victims. Although according to the prosecution they received fatal injuries while on motorcycle near the pump further proves that one of them suffered injuries in a different manner. Not a single search is on that legs. If they really were on motorcycle their legs will be under one side of the motorcycle. Motorcycle would fall with them. They will be recovered only after the removal of the motorcycle. But strangely enough the dead bodies were lying scattered away from the motorcycle. No injuries were found on their person except gunshot. This creates doubt about the authenticity of the prosecution case that they were on a motorcycle when they sustained injuries. This dent in the prosecution case gives rise to the suspicion that the true genesis and manner of assault is being suppressed by the prosecution and it has presented a (sic) version before the Court. P. W. 8 is Jit Bahadur Singh, Head Moharrir at the Police Station, Mariyahun. On the relevant date he has prepared the check first information report on the basis of the written report of Raj Narain Singh. It is Ext. Ka-11 on record. He has transcribed in the General Diary the version of the incident at 9.10 a. m. He has produced the original General Diary and filed photostat copy of the same which is on record. He has admitted that at about 12.15 p. m. he got prepared the check recovery memo on the basis of Ext. Ka-11 on record. He has transcribed in the General Diary the version of the incident at 9.10 a. m. He has produced the original General Diary and filed photostat copy of the same which is on record. He has admitted that at about 12.15 p. m. he got prepared the check recovery memo on the basis of Ext. Ka- 7 vide case Crime Nos. 179, 180 and 161 of 1994 under Section 25 Arm Act. First Information Report was prepared on the basis of the recovery memo. The entry of this first information report was made in the General Diary No. 150 of that date. He had produced the original of this General Diary and its carbon copy is proved as Ext. Ka-13 on record. He had further stated that the two accused persons with one DBBL gun, one revolver having six round with five live cartridges and one spent cartridge in a sealed bundle and another bundle containing one country made pistol of. 315 bore with five live cartridge and one Katta of 12 bore and a gun with live cartridge of 12 bore were brought to police station. It is Ext. Ka- 13. On the same day Sri Pandey has deposited two tins containing blood stained earth and simple earth and four spent cartridges at the police station by entry No. 17. He has produced the original G. D. entry and filed its photostat copy, Ext. Ka-15, on record. On the same day Constable Kalika Yadav and Mahanand Misra brought back two packets in sealed condition from the mortuary at 9.10 p. m. Its entry is made at Serial No. 24. Its copy was filed as Ext. Ka-16 on record. He has also proved that on 13-6-1994 the blood stained earth, blood stained clothes and DBBL gun were sent by him to the Forensic Science Laboratory for its examination. The entry regarding it is at serial No. 9 in the General Diary at 6.25 p. m. He identified the signature of the constable concerned. It is Ext. Ka-17 on record. He was recalled on 21-10-1995. He stated that on 24-5-1994 Sunil Singh was brought to the police station by constable Sunil Kumar Singh at about 11. 45 am. He examined his injuries, prepared chitthi majroobi and sent him to the hospital for his examination. It is Ext. Ka-17 on record. He was recalled on 21-10-1995. He stated that on 24-5-1994 Sunil Singh was brought to the police station by constable Sunil Kumar Singh at about 11. 45 am. He examined his injuries, prepared chitthi majroobi and sent him to the hospital for his examination. He had produced G. D. entry pertaining to the injuries, serial No. 13 at 11.45 photocopy of it is Ext. Ka-19. 17. THE original G. D. dated 24-5-1994 was shown to him. He admitted that there is no date regarding its receipt by G. O. under his signature. He further stated that these papers were sent through a dak bahi and that dak bahi is not before him. He denied that there is no entry in any Bahi regarding the dispatch dated 24-5-1994. He admitted that on 24-5-1994 he was lone Head Moharrir. How many Head Moharrirs and Constables were posted at the relevant time in the month of May and June at his police station is not known to him. He had denied the suggestion that entry pertaining to 24-5-1994 was ante- timed and ante dated in consultation with senior officers. Till the consultation G. D. was withheld. He has further denied the suggestion that no General Diary of 24-5-1994 was prepared on that day. He has also denied the suggestion that the first information report was not transcribed at the time as alleged but it was written and registered much later, and was ante timed. 18. IT is not explained why weapon other than gun was not sent for examination to the ballistic expert. It would have proved whether any one of the fear cartridges were fired from them or not. P. W. 10 is the Investigating Officer Sri Hari Nath Yadav. He was on the relevant date S. H. O. Mariyahun. He was posted in connection with election duty at Jaunpur police lines. He got information at this police lines of the offence and immediately rushed to the place of occurrence at Shitalganj. He reached there at 9.30 a. m. on his official jeep. He did not go to the police station to verify whether any first information report is lodged. He found large crowd assembled at the spot. Narendra Pratap Singh S. S. I. and others were deployed to control the public. He reached there at 9.30 a. m. on his official jeep. He did not go to the police station to verify whether any first information report is lodged. He found large crowd assembled at the spot. Narendra Pratap Singh S. S. I. and others were deployed to control the public. Inside the show room he saw three persons two of whom had weapon, one was holding a DBBL gun and the other had a revolver and third was empty handed. He saw them from the glass. On enquiry he learnt that two persons inside the room had committed murder and they have also held the illegally there. He also came to know the name of the person who was kept inside the show room as bandhak. Additional police force arrived there from the police lines. The entire force of police was deployed to controlled the crowd that had surrounded the petrol pump. He took S. S. I. Narendra Pratap Singh, Santosh Kumar and 4-5 men from the crowd and entered into the show room to effect the arrest of the culprits and rescue the person kept as bandhak. When he reached inside the show room two persons who were holding guns tried to runway from the north door. They were arrested at the door of the show room by using necessary force. Their names were disclosed as Pushkar Pandey and Karunakar Pandey. From the possession of Pushkar Pandey a 12 bore DBBL gun was recovered and from the belt tied around the waist 9 cartridges were recovered. From the possession of Karunakar Pandey a revolver of 32 bore, the chamber of which contained 5 live cartridges and one spent cartridge was also recovered. This weapon was never alleged to have been fired. This revolver bore marking USA-32. It was in working condition. On search of the show room from lower drawer one country made pistol. 315 bore having five live cartridges and a 12 bore country made pistol was also recovered. They were unable to produce the licence for the recovered fire-arm. the appellant Pushkar Pandey and Karunakar Pandey were taken into custody and third person Sunil Singh was freed. On enquiry is name was disclosed as Sunil Singh alias Guddu son of Sharda Singh resident of village Banswari, Police Station Kerakat, District Jaunpur. The recovery and arrest memos were prepared at the spot. the appellant Pushkar Pandey and Karunakar Pandey were taken into custody and third person Sunil Singh was freed. On enquiry is name was disclosed as Sunil Singh alias Guddu son of Sharda Singh resident of village Banswari, Police Station Kerakat, District Jaunpur. The recovery and arrest memos were prepared at the spot. A copy of the recovery memo was given to the appellants. These papers did not bear their signatures. The original was produced as Ext. Ka-7. The recovered weapons were sealed and sent to the Police Station through R. N. Pandey, Sub-Inspector for completing necessary formalities and getting case registered under Section 25 Arms Act against the appellants. Thereafter he left the spot after giving necessary instructions to Narendra Pratap Singh, who was investigating the case in search of Prabhakar Pandey. Sunil Singh disclosed him, on enquiry, that he was beaten. This has a great relevance. It reflects that till then no first information report was there. His injury was examined by him. The injuries as noted in the medical examination report were also noticed by the Sub-Inspector. These injuries are not noted anywhere by him. He identified the recovered articles in the Court. The gun recovered from the possession of Pushkar Pandey is Ext. 1. Cartridge belt is Ext. 10. He had identified 32 bore revolver and also the recovered cartridges. They are marked as Exts. 20 and spent cartridge was marked as Ext. 21 to 26. He has also identified country made pistol and live cartridges as Ext. 28 to 32. He has also identified the country made 12 bore pistol which is Ext. 33. His statement was recorded by Sub-Inspector Indresh Yadav, who investigated the case under Section 25 Arms Act. He has admitted that he has not examined any record. He did not even examine the First Information Report. He has clearly admitted that he reached the spot at 9.30 a. m. There was a huge crowd. He has not prepared any map of the show room. He admitted that he had not shown the spot where Sunil Singh and two appellants were present inside it. Ext. Ka-7 contains the mention of only DBBL gun, revolver, country made pistol and illegal cartridges but there is no mention of Sunil Singh. He has further admitted that he has not noted down that Sunil Singh had given him any statement or his injuries were seen by him. Ext. Ka-7 contains the mention of only DBBL gun, revolver, country made pistol and illegal cartridges but there is no mention of Sunil Singh. He has further admitted that he has not noted down that Sunil Singh had given him any statement or his injuries were seen by him. It is also not written therein that the injured Sunil Singh was sent for medical examination. He has further stated that he has not issued any letter for his medical examination. This is contrary to the statement of Sunil Singh. After the departure of the accused persons Superintendent of Police Sri Javed Ahmad and Circle Officer, Mariyahun arrived at the scence of the occurrence and pleaded ignorance whether any other Police Officer has reached there or not. He denied the recovery of any weapon from the possession of any deceased or from the show room from outside. This belies the statement of P. W. 3. He has also denied that the deceased persons and their companion had come with weapons, claimed to have been recovered from the accused and these weapons had been planted on the appellants. He had denied that Ext. 1 was recovered by him from the petrol pump and claimed that it was recovered from appellant Pushkar Pandey. He denied the suggestion that it was planted on Pushkar Pandey. He denied that entires were made by that time. He has also denied that nothing was visible inside show room. Fard Ext. Ka-7 was prepared. He denied that no copy of the recovery memo was given to the appellants. Their signatures on original were forcibly obtained while they were in their custody. He had admitted that he had not recorded Sunil Kumar Singh's statement. He has denied that the entire version about assault on him and his release from show room are fabricated. According to him this case initially was registered under Sections 302, 307 and 342 IPC. He has denied that Sections 307 and 342 IPC were subsequently added. It is also disputed that the First Information Report was prepared in consultation with senior officers later on. According to him he received information of murder at the petrol pump from District Control Room by R. T. set. The District Control Room is in the police lines. At that time he was present there. It is also disputed that the First Information Report was prepared in consultation with senior officers later on. According to him he received information of murder at the petrol pump from District Control Room by R. T. set. The District Control Room is in the police lines. At that time he was present there. He admitted that he was not on election duty but had reached there for being sent to Ghazipur from the police lines. He has informed the District Control Room that he is going to the place of the occurrence. He reached there at about 9.30 a. m. There was no entry with regard to his arrival at the police lines and therefore he did not got his departure recorded therein. He stopped his jeep on the road near the crowd. For the first time he saw three persons inside the show room on entering the petrol pump itself. He was told by the gathered crowed that the two accused persons are inside the show room. The place from where he has seen the culprits for the first time was shown by him to the I. O. The I. O. has already seen that place because he was present there from before. When he saw all the accused persons for the first time they were not trying to run away. He has not seen any barrel placed on Sunil Singh's ear. After his reaching at the petrol pump additional force from the police lines reached the spot. He has deployed the additional force also to control the crowd. He claimed that he tried to protect the petrol pump from being damaged. Witnesses Kamta Maurya and Santosh Singh were present amongst the crowd. He himself called the two persons from the crowd. Police men were empty handed but they still proceeded towards the show room. They had taken their mutual searches before proceeding towards the show room. When he was 3-4 steps away the appellants tried to run away. None of the appellants tried to fire on him. He himself arrested Pushkar Pandey and Karunakar Pandey was arrested by Narendra Pratap Singh. It is not transcribed in the recovery memo that who arrested these appellants. They arrested the appellants at 10.30 a. m. This fact is contradicted from the statements of P. W. 1, P. W. 2 and P. W. 3. He himself arrested Pushkar Pandey and Karunakar Pandey was arrested by Narendra Pratap Singh. It is not transcribed in the recovery memo that who arrested these appellants. They arrested the appellants at 10.30 a. m. This fact is contradicted from the statements of P. W. 1, P. W. 2 and P. W. 3. In preparing the recovery memos of the weapons and also arrest memos of the appellants they have taken 30. 35 minutes. Narendra Pratap Singh sealed the papers and he prepared Ext. Ka-7. The seal was put by Narendra Pratap Singh but it was already signed by him. By the time the memo was prepared by him sealing and recovery proceedings were completed. At the end of Ext. Ka-7 his signature is there. Underneath his signature 10.30 was mentioned. He admitted, there is over writing on it. This over writing has occurred because of the failure of the dot pen. Due to repeated attempts to write it. In the crime number also over writing is there. It is due to failure of the pen. One of the over writing is initialed but the rest are not initialed. He was posted as S. H. O. Mariyahun and Narendra Pratap Singh was posted as SSI. He had denied the defence suggestion that because of the pressure of the Thakurs he did not take up the investigation himself. He has denied that Kamta Maurya and Santosh Singh were not present on the spot and their signatures were taken later on. He admitted that inside the show room only one counter was there but it had many shelves. He examined all the shelves and found some cash. It was deposited at the police station and its entry was made in the General Diary. 19. FROM his statement it is apparent that when he reached the place of the occurrence huge crowd had already assembled there. There was no restlessness in the crowd. They were not menacing to pump owners. According to him the release of Sunil Singh was obtained from the show room at 10.30 a. m. He was contradicted by the statements of P. W. 1, P. W. 2 and P. W. 3. According to P. W. 2 his release was obtained at 9.10 a. m. the First Information Report was also registered at 9.10 a. m. the distance of the police station being 7 kms. According to P. W. 2 his release was obtained at 9.10 a. m. the First Information Report was also registered at 9.10 a. m. the distance of the police station being 7 kms. therefore, his release was adjusted to 10.30 a. m. in the statement of this witness and in the recovery memo. Underneath his signature time is shown as 10.30. There are so many over writings in the recovery memo including the time of the First Information Report. Generally no time of First Information Report is put in the recovery memo. It is normally mentioned in the case diary. No attempt was made by the appellants to run away. As per their statements Narendra Pratap Singh reached the spot first. It is not the case of the prosecution that these weapons were used against any person including the deceased and other witnesses Raj Narain Singh and Adya Prasad Singh. The prosecution alleges only the use of the licensed gun belonging to Prabhakar Pandey by Pushkar Pandey in the incident. Then how these two weapons and a country made gun came there was not explained at all from the evidence of the prosecution. The revolver had a spent cartridge inside. The country made pistol had only five live cartridges in it. He claimed that he has examined injuries of Sunil Singh but in his statement none of these facts find any mention nor anywhere in Ext. Ka-7 or other papers. According to Sunil Singh he was given a memo for medical examination at the spot but this witness denied the same. According to Head Moharrir a memo was issued by the police at 12.30 p. m. after Sunil Singh reached there. This fact is also contradicted by P. W. 2. He reached at 11. 45 a. m. He claimed that he was on election duty on the date and was present at police lines, Jaunpur. He reported his arrival there. An entry for his arrival ought to be there in the G. D. of police lines. He came from here to the spot at 9.30 a. m. Information was given to him at the police lines. Control room was stationed at this very line. What was the text of the massage it was not disclosed. He reported his arrival there. An entry for his arrival ought to be there in the G. D. of police lines. He came from here to the spot at 9.30 a. m. Information was given to him at the police lines. Control room was stationed at this very line. What was the text of the massage it was not disclosed. Till his arrival no attempt to secure Sunil from the show room was made by Narendra Singh S. S. I. It was so done after his arrival. Why it was delayed for an hour is beyond our imagination. No mention of any injury of Sunil in the recovery memo prepared at about 11 a. m. is a very serious omission. It affects prosecution version regarding Sunil adversely. The prosecution is trying to adjust the timings of these facts with the time of lodging of First Information Report. It is proved by over writings in the recovery memo. Any wireless message shall be received at the Control Room from the police station after the written report is registered. The informant admittedly reached the police station at 9.10 a. m. In the circumstances wireless message enabling this witness to reach the spot at 9.30 a. m. was positively sent on some other information and not on the basis of this First Information Report. Recording to informant the FIR was taken down by the police by 10. am. The message on R. T. set will not be relayed unless the First Information Report is registered and check First Information Report is ready. His arrival at the scence at 9.30 a. m. in these circumstances is highly doubtful. Moreover his subsequent admission that he was not on election duty further strengthens our doubt. It is strongly fortified from the fact that there is no entry of his arrival or departure in the police line's G. D. Thus, these circumstances read, cumulatively leave more than enough room to doubt the authenticity of the story about sunil Singh being held a captive by the assailants and also about the time of lodging of the First Information Report. The main question that crops up before us in the situation is that if they held him in the custody then they must have disclosed to the police their side of the version and there is nothing on the record from the prosecution to show to the Court that version. It clearly tends to create the impression that police had suppressed it from the Court for the reasons best known to the prosecution. 20. P. W. 11 is Narendra Pratap Singh who was SSI at the Police Station, Mariyahun on 24-5-1994. According to him at 9.10 a. m. on 24-5-1994 Raj Narain Singh came to the Police Station with a written report. He orally informed him about the murder of his sons. He directed the Head Moharrir to register the case and he himself started preparing the case diary. After registration of the case under Crime No. 178 of 1994 he proceeded for the spot meaning thereby that the contents of the First Information Report and the General Diary entry were taken down in the case diary before he started for the spot. He claimed that before leaving the station he directed the Head Moharrir to register the case and then proceeded towards the place of the occurrence. This indicated unerringly that initially the information was of the murder of his sons and this S. S. I. left the police station after giving instructions to the Head Moharrir to do the needful. The First Information Report was not there with him. He found a big gathering there. He examined the situation from that place and obtained necessary information from the people present there. It corroborates that till he reached the spot he had no written version of this incident. He claimed that he had seen for himself the presence of two persons in the petrol pump. One was having a DBBL gun and other had a revolver. He found two dead-bodies. Nearby them a motorcycle was lying. The person who was holding DBBL gun was told to be Pushkar Pandey. One having a revolver was told to be Karunakar Pandey. Empty handed person was named Sunil Kumar Singh. One was having a DBBL gun and other had a revolver. He found two dead-bodies. Nearby them a motorcycle was lying. The person who was holding DBBL gun was told to be Pushkar Pandey. One having a revolver was told to be Karunakar Pandey. Empty handed person was named Sunil Kumar Singh. After examining the situation he directed Indresh Yadav Sub-Inspector to position himself to the West of the show room, Sub-Inspector Rameshwar Pandey and Kalika Yadav were directed to stand in the north of the petrol pump, Constable Mahanand Misra was directed to stand in the south in order to arrest the culprits and control the crowd. In the meantime S. H. O. also reached the petrol pump with force. This runs contrary to P. W. 10 Hari Nath Yadav. He claimed to have given complete information of situation to P. W. 11. Under his command they first maintained peace and order in the vicinity and facilitated the vehicles to move freely on the road. The S. H. O. Hari Nath Yadav alongwith Kamta Maurya and Santosh Kumar Singh moved towards the show room to arrest the appellants. The appellants were also challenged on which Pushkar Pandey and Karunakar Pandey ran towards the north. They were arrested alongwith their weapons near to northern door of the show room. After giving mutual searches the searches of the arrested accused persons in the presence of the witnesses were taken. As earlier disclosed the gun was recovered from the possession of Pushkar Pandey alongwith the belt containing 9 cartridges by Hari Nath Yadav. The other appellant Karunakar Pandey was arrested with 32 bore revolver alongwith six cartridges out of which five were live and one was a spent cartridge. They were taken into custody. Sunil Singh was rescued. He disclosed that he had suffered injuries. The names of the appellants were enquired from them. This fact further discloses that the police was not having any copy of the First Information Report otherwise there was no question of Sunil Singh disclosing about his injuries. On search of the counter from right hand shelved one country made pistol. 315 bore, three live cartridge and one country made pistol 12 bore were recovered. It was sealed by him at the spot under he direction of S. H. O. Hari Nath Yadav P. W. 10. On search of the counter from right hand shelved one country made pistol. 315 bore, three live cartridge and one country made pistol 12 bore were recovered. It was sealed by him at the spot under he direction of S. H. O. Hari Nath Yadav P. W. 10. He also identified the recovered articles from the shelves of the show room. Sunil Singh was sent through Constable Sunil Kumar Singh for medical examination to the police station. He made enquiries from the appellants Karunakar Pandey and Pushkar Pandey. It is not recorded any where. Thereafter he sent through Sub-Inspector Rameshwar Pandey, Laxman Shukla and Jai Ram these appellants and recovered article to the police station alongwith their recovery memos. The informant and senior officials arrived at the spot by this time. He prepared the inquest memo of the deceased under the instruction of S. H. O. alongwith Indresh Yadav. Inquest memo of Brijesh Singh was prepared by him which is Ext. Ka-21. All the papers pertaining to these inquests, From 13 photos of the dead-bodies, Ext. Ka-23, Ka-24, letter Ext. Ka-25, letter to the Chief Medical Officer Ext. Ka-26, letter to Medical Officer Incharge Ext. Ka-27 were prepared by him. The inquest memo of Rajesh Singh was prepared by Indresh Yadav under his instruction. He proved these papers. These papers are Ext. Ka-28 to Ka-33. The dead-bodies were sent for post-mortem examinations through Constable Kalika Yadav and Mahanand Misra. Raj Narain Singh was present at the spot and his statement was recorded. Statement of Virendra Singh, who was a witness of First Information Report was also recorded. He had also recorded the statement all the formal witnesses and Sunil Kumar Singh who reached there by then. He prepared the site plan on the pointing out of Raj Narain Singh and Sunil Kumar Singh. He recovered the blood stained and simple earth from near the dead-bodies. Their recovery memos are Ext. Ka-35 and K-36. He recovered four spent cartridges of 12 bore and sealed them. Its recovery memo is Ext. Ka-37. Recovery memo of motorcycle was also prepared which is Ext. Ka-38. The recovery memo of scooter was also prepared. These papers were prepared by Indresh Yadav. The recovered materials and four spent cartridges are Ext. 2 to 5. Both the vehicles are present in the Court. These are Ext. 38 and 39 on record. Its recovery memo is Ext. Ka-37. Recovery memo of motorcycle was also prepared which is Ext. Ka-38. The recovery memo of scooter was also prepared. These papers were prepared by Indresh Yadav. The recovered materials and four spent cartridges are Ext. 2 to 5. Both the vehicles are present in the Court. These are Ext. 38 and 39 on record. On 25-4-1994 he received post-mortem examination report of the two deceased and injury report of Sunil Singh. He recorded the statements of Sunil Singh P. W. 2 and Bhola Singh on 26-5-1994. On 12-6-1994 the recovered weapon, blood stained and simple earth, four spent cartridges alongwith the blood stained clothes were sent to the Ballistic Expert for examination through Court. After conclusion of the investigation charge-sheet was sent to the Court. The charge-sheet is Ext. Ka-41. In cross-examination he admitted that he has only prepared 7 Parchas. In the case diary the first Parcha is dated 24-5-1994. When it reached the office of Superintendent of Police was not known to him. He admitted that there is nothing in the case diary, which may indicate the date of its receipt in the Superintendent's Office. He has further admitted that from the case diary he cannot say when these parchas, prepared by him, reached the Superintendent of Police because the case diary does not contain any such description or evidence. He admitted that it is not necessary for these Parchas to be sent through peon book. These Parchas were carried by a pairokar of the police station. He has not noted down the time of recording of the statement of the witnesses in the case diary. No time of preparation of the site plan is also noted therein. Time of recovery of the articles is not noted therein. These recoveries were noted down in the case diary but no time was written showing the alleged recovery. Inquest memo of Rajesh Singh Ext. Ka- 28, does not contain the time of its initiation and its conclusion. The same mistake is there in the inquest memo of Brijesh Singh, which is Ext. Ka-21. In Form 13 time of conclusion was shown to be 12 noon. Admittedly according to him the Circle Officer Mariyahun, Superintendent of Police, Sub-Divisional Magistrate and Tehsildar Mariyahun came to the spot. Senior Superintendent of Police also came there. When these officers arrived the dead-bodies were still lying there. Ka-21. In Form 13 time of conclusion was shown to be 12 noon. Admittedly according to him the Circle Officer Mariyahun, Superintendent of Police, Sub-Divisional Magistrate and Tehsildar Mariyahun came to the spot. Senior Superintendent of Police also came there. When these officers arrived the dead-bodies were still lying there. The Superintendent of Police at that time was Sri Javed Ahmad. He did not recover any weapon from near the deceased and handed it over to them. He denied any suggestion to this effect. He denied that the gun was found standing by wall of the show room by him. It had falsely been shown to have been recovered from Pushkar Pandey. He had denied that material Ext. 20 revolver and cartridges Ext. 21 to 26 were recovered from Brijesh Singh and Rajesh and false planting has been made on Karunakar Pandey. He has denied that Ext. 27 to 32 were recovered from Rajesh Singh. He denied that the case cooked up and recoveries made from the deceased and Sunil Singh were planted against the appellants. He further denied that there was any bomb with the deceased party and where was evidence at the site of its use. He has denied that the deceased party had gone to loot the petrol pump and in the process they had hurled bombs also. He admitted that in the case diary there is mention that at 9.10 a. m. Raj Narain Singh came to the Police Station and told that his two sons were done away with at the petrol pump. Raj Narain Singh met him at the police station. He did not record his statement there. He denied that Raj Narain Singh did not come to the police station to lodge the report. He has denied that on receiving the information that two persons have been done away with be proceeded to the spot. He denied that in consultation with Senior Officers in every paper prepared at the spot sections 307, 342 I. P. C. were added subsequently. He had denied that this report was dictated by him to Raj Narain Singh at 3 p. m. He also denied that this report was prepared after consulting and advocate and Senior Officers. Mortuary is about 12 Kms. from the place of the occurrence. Mortuary is near the Roadways Bus Station, Jaunpur. He had denied that this report was dictated by him to Raj Narain Singh at 3 p. m. He also denied that this report was prepared after consulting and advocate and Senior Officers. Mortuary is about 12 Kms. from the place of the occurrence. Mortuary is near the Roadways Bus Station, Jaunpur. He denied that the copy of the First Information Report was sent later on in a jeep for being included amongst the papers sent initially. On the Parcha of the case "submitted" was written by S. H. O. /hari Nath Yadav. There is no mention in the case diary or in the site plan regarding any interrogation of the people living in the vicinity or shop keepers whose shops are there. It is not mentioned that Hari Nath Yadav made any enquiry from any one. After inquest Adya Prasad Singh left the place so his statement could not be recorded but this fact is not written in the case diary. He admitted that the statement of Adya Prasad Singh was recorded on 25-5-1994. He admitted that the statement of Ramjit Maurya was recorded on 26-5-1994 at a tea shop. The boundary wall around the petrol pump was three feet high. It was higher in the west. In the north of the petrol pump in half portion there is field and in the rest half portion there is house of Ashok Yadav and a cycle repair shop. He reached the spot at 9. 23 a. m. Huge crowd was there on the road. The crowd was up to the house of Ashok Yadav and his shop. He denied that all the memos including recovery memo were prepared on 25-5-1994. He admitted Raj Narain Singh has not disclosed to him that he and Adya Prasad Singh came to the road by the pagdandi. He disclosed that the end Adya Prasad Singh were going to correct the copies of the board examinees and for a conveyance they came to the road in front of the petrol pump. He stated that he was shown by Raj Narain Singh the place from where Pushkar Pandey had fired. But he has admitted that he had not written it in the statement of Raj Narain Singh that the vehicles going on Jaunpur-Mirzapur road stop at the petrol pump. He stated that he was shown by Raj Narain Singh the place from where Pushkar Pandey had fired. But he has admitted that he had not written it in the statement of Raj Narain Singh that the vehicles going on Jaunpur-Mirzapur road stop at the petrol pump. He admitted that it is not written in his statement that he, his family members and village people used to come on the road in front of the petrol pump to pick up a conveyance. It is also not written in the statement that pagdandi in the west of his house came upto the petrol pump and converge there in the main road. He denied that Raj Narain Singh had shown the invitation card and envelope to him and also informed that it is the same invitation card. Further Sunil Singh left the house for going to another village to invite his father's sister. He admitted that no statement about the animosity with the appellant was made in the statement under Section 161 Cr. P. C. It is also not stated to him that the report of the incident was transcribed by him at the bus stand. Sunil Singh came to the police station from chak road. It is another pathway leading from his village to the petrol pump. He claimed whether these facts were disclosed to him by Raj Narain Singh he did not remember. Immediately after rescuing Sunil Singh why he had not examined him in response his statement is that he had injuries, therefore, he thought it proper to send him for medical examination first. He did not examine the driving licence of Sunil Singh. He, as a matter of fact, had no licenced. He admitted that spot where his scooter was standing was not shown in the site plan. From where the scooter was recovered is also not shown. He denied that non-showing of these places show that it was not there at that time. The scooter was released to another person. He denied that he was partisan to the informant during investigation. In his statement under Section 161 Cr. P. C. Sunil Singh admitted that when ever he goes to Raj Narain Singh he used to stay for 2-3 days and if he does not stay he generally used to go to Shitalganj Bazaar and Pali Bazaar. He denied that he was partisan to the informant during investigation. In his statement under Section 161 Cr. P. C. Sunil Singh admitted that when ever he goes to Raj Narain Singh he used to stay for 2-3 days and if he does not stay he generally used to go to Shitalganj Bazaar and Pali Bazaar. He also did not inform him that to the east of Jaunpur-Mirzapur road plots of Raj Narain Singh and his co-parceners are there with a pumping set. To the east of the pumping set there is habitance and whenever he use to come to the village. Subhashpur in connection with marriage he used to take petrol from this very petrol pump or for getting bus he used to stop there or he knew the owners from before by their names. Whether these facts were disclosed by Sunil Singh to him he did not remember. The person whose name is Prabhakar Pandey became known to him subsequently. He admitted that Sunil Singh had not told him that in connection with marriage he came to the house of his father's sister and from there after taking a scooter he came to Raj Narain Singh and gave him an invitation card. He thereafter requested for the Bidai of his sister but Raj Narain Singh told him you go she will be sent later on. He admitted that Sunil Singh did not inform him that the petrol came in the reserve in his scooter. He had admitted that in his statement under Section 161 Cr. P. C., it is written that at about 8 a. m. he came to take petrol from the filling station. It is also not written that when he started from the house Raj Narain Singh and Adya Prasad Singh also started by pagdandi for going to examine the copies of the Board examines. 21. P. W. 12 is the Sub-Inspector Indresh Yadav. He has assisted the Investigating Officer Narendra Pratap Singh in investigation inasmuch as he prepared the inquest memo of Rajesh Singh and all allied papers to this inquest. He has also prepared recovery memos of scooter, Ext. 39 and motorcycle Ext. 38. He also investigated case Crime Nos. 179, 180 and 181 of 1994 under Section 25 Arms Act pertaining to the recoveries of illicit weapons from the possession of these appellants or from the drawer of the show room. He has also prepared recovery memos of scooter, Ext. 39 and motorcycle Ext. 38. He also investigated case Crime Nos. 179, 180 and 181 of 1994 under Section 25 Arms Act pertaining to the recoveries of illicit weapons from the possession of these appellants or from the drawer of the show room. The First Information Report pertaining to Arms Act case was written by constable Sunil Kumar Singh. He also recorded the statement of Pushkar Pandey and Karunakar Pandey. After that he recorded the statement of Hari Nath Yadav and Narendra Pratap Singh, prepared the site map of the spot at the instance of Hari Nath Yadav and Narendra Pratap Singh. It is marked as Ext. Ka-42. The site plan was prepared in connection with case Crime No. 179 of 1994. Carbon copies of the same were placed in case Crime Nos. 180 and 181 of 1994. On 27-5-1994 the statements of Sunil Singh and Kamta Maurya in connection with Arms Act were also recorded. After obtaining sanction he submitted charge-sheet in the Court on 18-7-1994. The sanctions are Ext. Ka-45, Ka-46 and Ka-47 on record. The last two sanctions were obtained on 22-6-1994. In Ext. Ka-28, the inquest memo of Rajesh Singh, no time of its initiation and conclusion is shown by him although he claimed that it was commenced at 10.30 a. m. He admitted that it is not written in it that it was commenced at the instruction of Narendra Pratap Singh. According to him Sections 302, 342 and 307 IPC were written in one stroke. He then admitted that Section 342/307 IPC were added subsequently. On the last page of this Ext. Ka-28 in his own opinion offence is shown as 302 IPC and there is no mention of Sections 342/307 IPC. He again denied that Sections 342/307 IPC were added letter on. He denied that First Information Report was transcribed later on and initially they had gone to the spot after noting down case Crime No. 179 of 1994 under Section 302 IPC that is why Section 302 IPC is written continuously in these papers and Sections 342/307 IPC were written later on. He admitted that in Ext. Ka-28 after Section 342 IPC Section 307 IPC were added because generally they used to add it below Section 302 IPC. In Ext. Ka-38 Section 342 IPC is not shown. He admitted that in Ext. Ka-28 after Section 342 IPC Section 307 IPC were added because generally they used to add it below Section 302 IPC. In Ext. Ka-38 Section 342 IPC is not shown. No time of its preparation is shown in the recover memo. In Ext. Ka-39 also there is an omission of the above facts. The place from where scooter was recovered is not shown. He admitted that while preparing the memo of recovery of motorcycle name of the owner was not known to him. He denied that all these papers were ante timed and ante dated and prepared on the next date. He got investigation of Arms Act cases under the instruction of Rameshwar Nath Pandey. He was his senior. Next senior was N. P. Singh and senior most amongst them was S. H. O. Hari Nath Yadav. He recorded the statement of Hari Nath Yadav at the police station but the statement of N. P. Singh was recorded at the petrol pump. On the Parcha dated 25-5-1994 of the case diary of Arms Act Circle Officer's signature is of 8-7-1994. Similarly on the Parcha dated 27-5-1994 the signature of the Circle Officer is of 8-7-1994. Sunil Singh has disclosed to him that on 24-5-1994 at Shitalganj petrol pump appellants kept him confined illegally in the office. Form 13 (Ext. Ka-32) does not bear his signature. He admitted that it was written by him. He has further stated that on these papers case Crime No. 178 of 1994 Section 302 IPC was written by him. He did not write Sections 342/307 IPC on it. In Ext. Ka-32 time of the report as well as the time of the death is shown as 9.10 a. m. which according to him is a mistake. In Ext. Ka-33 only Section 302 I. P. C. is transcribed. There is omission of Sections 342/307 IPC. It is in his own hand witting and it bears his signature also. He had admitted that Ext. Ka-47 is the sanction order pertaining to Prabhakar Pandey. No sanction under Section 25, 27 and 30 of the Arms Act was granted. He had not shown in the site plan. Ext. Ka-42 to Ka-44, the place from where he had seen the witnesses. He had admitted that Ext. Ka-47 is the sanction order pertaining to Prabhakar Pandey. No sanction under Section 25, 27 and 30 of the Arms Act was granted. He had not shown in the site plan. Ext. Ka-42 to Ka-44, the place from where he had seen the witnesses. He admitted that he had only shown the spot of arrest and had not shown the spot where they were initially present before they started running. In the office room Nos. 2 and 3 are adjacent to each other. In the room No. 3 is a passage in the north for going out. According to the I. O. Narendra Pratap Singh police was posted on all the exit gates to prevent escape of accused. He admittedly has not recorded the statement of any residents of the vicinity. From which shelf of the counter the country made pistol or revolver was recovered is not shown in the site plan. He also had not seen the weapons after they were claimed to have been recovered. He had seen them only during investigation. This gives an indication that the recovered articles were not sent in a sealed State. He had not written the time of starting of the investigation of Arms Act case in the case diary. He claimed to have recorded the statement of the informant on 25-5-1994 at 9.10 a. m. He admitted that he had not written the time of statement of other witness in the case diary. Time of inspection is not written in the case diary. In the site plan the place from where Prabhakar Pandey tried to runaway from the office is not shown. He has denied that a charge-sheet on false facts was submitted against the appellants by him. 22. P. W. 13 is Ramanuj Pandey H. C. No. 46. He claimed that at Police Station, Mariyahun his number, as constable was 78. In the General Diary of the Police Station his number is shown as 98. He claimed that it was wrongly mentioned. He had sent the case property of case Crime No. 178 of 1994 to the Forensic Science Laboratory, U. P., Lucknow in a sealed bundle. He had sent it in the same state in which he had received them. It was handed over there on 13-6-1994 in that very state. He claimed that it was wrongly mentioned. He had sent the case property of case Crime No. 178 of 1994 to the Forensic Science Laboratory, U. P., Lucknow in a sealed bundle. He had sent it in the same state in which he had received them. It was handed over there on 13-6-1994 in that very state. Case property was given at Lucknow to the official who was deployed for receiving them. He did not know his name nor he knew him from before. The receipt obtained from that clerk was deposited at the police station. It was not produced in the Court. He did not disclose what was in the envelope and in the sealed bundle. He had taken only three bundles. In one of the bundle there was DBBL gun and cartridge belt. He did not know anything about other bundles. He went to Lucknow by bus. He had not shown the case property to any one during its transit. P. W. 14 is Rameshwar Nath Pandey Sub-Inspector. He was posted as Sub-Inspector at Police Station, Mariyahun on the relevant date. He claimed to have gone to the spot of the occurrence alongwith S. S. I. /narendra Pratap Singh. According to him the name of the petrol pump is M/s Dharamraj and sons. He did not know its exact name. He was given custody by Narendra Pratap Singh of the two accused persons, four bundles of the case property which he deposited at the Police Station, Mariyahun and its entry was made in the General Diary of the police station. He did not allow any one to tamper with the bundle. He deposited them at the police station in the same condition in which it was received. Whatever papers he was given crime number was registered thereon. He identified Pushkar Pandey and Karunakar Pandey as the persons whom he brought to police station. After depositing the above said case property and the accused persons he again returned to the spot. He was given the blood stained earth in a sealed condition and live cartridges in sealed condition by SSI N. P. Singh. He again came to the police station with above case property and deposited the same. He did not allow any one to tamper with it. All these properties were deposited on 24-5-1994. This was the date on which he received it. He again came to the police station with above case property and deposited the same. He did not allow any one to tamper with it. All these properties were deposited on 24-5-1994. This was the date on which he received it. As far as his memory went he claimed that neither Narendra Pratap Singh nor Indresh Yadav have recorded his statement with regard to the escort of the two accused and deposit of the case property. He had further admitted that on Exts. Ka-13 and Ka-15 his signatures are not there. He did he remember the time when he reached with Narendra Pratap Singh at the place of the occurrence. At about 9 a. m. they reached the spot of the occurrence. He started for police station from the spot at about 10 or 10.30 a. m. and reached Police Station, Mariyahun at 12 O'clock. From the petrol pump police station Mariyahun is 6-7 Kms. This shows that the time of recovery noted in memo of recoveries are false and purpossive. He asked the Head Moharrir to make entry about his departure in the same General Diary. He again returned to the Police Station on the same day but he did not remember its time. By the time he reached it was evening. He was unable to give time of his reaching there a second time. He denied that all the facts stated by him are false and stated that on account of pressure of Narendra Pratap Singh. He denied that all the formalities were completed on 25-5-1994 and General Diary of 24-5-1994 was stopped at the Police Station. The search was not taken in his presence because he was standing in a different direction and the recovered articles were not sealed in his presence but were brought to the Police Station in a sealed condition. The container appears to be of Pan Masala. On the spot he was informed by the Investigating Officer that it is case property but no details were given to him. 23. THUS from the statement of the witnesses it is apparent that in all probability all formalities were completed on 25-5-1994 and not on 24-5-1994. Failure to give specific detail is extremely relevant. It is a case where defence must have disclosed it's case against the complainant party when police arrested these appellants but Investigation Officer had purposively not noted it. THUS from the statement of the witnesses it is apparent that in all probability all formalities were completed on 25-5-1994 and not on 24-5-1994. Failure to give specific detail is extremely relevant. It is a case where defence must have disclosed it's case against the complainant party when police arrested these appellants but Investigation Officer had purposively not noted it. Some of the papers prepared by P. W. 12 did not bear his signature. None of the witnesses of the incident give any clue about the fact as to who was investigating the case. All the Sub-Inspectors including S. H. O. were present at the spot. Senior Officers have reached in no time at the spot. The Superintendent of Police according to defence advised the policemen to plant the so-called weapons recovered from the possession of the dead person or their companions on the appellants. The recoveries from the shelf and from Karunakar Pandey were planted in order to wipe of the evidence of shooting resorted to by Brijesh Singh and Rajesh Singh. There are serious contradictions in the statement of witnesses, which have already been discussed at length while discussing their evidence. These omissions were amply proved by the three Sub-Inspectors. Hari Nath Yadav, Narendra Pratap Singh and Indresh Yadav. These omissions are material and very relevant. Even the existence of the First Information Report at 9.10 a. m. is a doubtful phenomenon is apparent from the evidence of the witnesses on record. Conduct of Raj Narain Singh in this context is not reliable as earlier discussed. It is unbelievable that a father whose sons, two in number, were lying dead will be so remorseless as to rush to police station to lodge a report and will not try to find out whether anyone of them was alive or not. It is improbable that without doing so he will rush to the police station to lodge a report. He had left for the police station on a jeep. How he has procured the jeep is not disclosed from the evidence, which is available on the record. Sunil Singh was dispatched from the spot as per his own admission. According to P. W. 3 he was sent at 9 a. m. If this is a fact that Sunil Singh was sent by a police jeep then this witness must have gone on the same jeep. Sunil Singh was dispatched from the spot as per his own admission. According to P. W. 3 he was sent at 9 a. m. If this is a fact that Sunil Singh was sent by a police jeep then this witness must have gone on the same jeep. According to Hari Nath Yadav, Sunil Singh was recovered at about 10 a. m. from the spot. It took him 0-35 minutes in preparing the recovery memos and getting the recovered articles sealed in appropriate bundles. Sunil Singh was recovered thereafter and was sent for medical examination to the police station. These police officers have straight away not sent Sunil Singh for his medical examination, we are unable to see why Sunil Singh was dispatched to the police station first and not to the hospital. Why his statement was not recorded before he was sent. The only answer is that till then prosecution version was not settled. According to Head Moharrir he reached at 11.30 am. and was dispatched for medical examination after giving him chitthi majroobi. From this fact we have no hesitation to come to the conclusion that the First Information Report was not prepared at 9.10 a. m. as alleged by the prosecution. Statement of N. P. Singh P. W. 11 lends full support to our conclusion. According to him information gave out to him that his two sons have been killed. 24. THE next question that confounded us is that Prabhakar left the pump first telling his brothers that he will communicate to the police the entire facts. He left the pump before Raj Narain left the spot. In the circumstances the information must have been received first by the police about the murder of the two persons from him. In these circumstances it is apparent that message about the incident could also be received by the police before 9.10 a. m. from the telephonic communication made by Prabhakar Pandey as asserted by him. In the circumstances these facts prove that Prabhakar Pandey was not present at the petrol pump when the police reached there. It is an admitted fact that Prabhakar Pandey left the spot leaving behind his two brothers and Sunil Singh in the show room before Raj Narain. In the circumstances it is also probable that the police had reached the spot on receiving this communication and they had suppressed its contents from the Court. It is an admitted fact that Prabhakar Pandey left the spot leaving behind his two brothers and Sunil Singh in the show room before Raj Narain. In the circumstances it is also probable that the police had reached the spot on receiving this communication and they had suppressed its contents from the Court. It also renders likely the fact that the police and received some information regarding the incident, its manner and its participants from defence side a highly probable fact. The investigation of the case was not conducted honestly and fairly. Plantation of weapons recovered from the deceased and their companions were planted under the instructions of the Superintendent of Police, Jaunpur upon the accused. The case has been given a complete twist to write of completely the defence version. The First Information Report from the side of the prosecution was prepared in consultation with an advocate who was closely connected with Raj Narain Singh. In this context omission that were discussed earlier assume great importance. These omissions were available from the suggestions made to the witnesses in their cross-examination by the defence from the First Information Report and 161 Cr. P. C. statements of theirs. These omissions relate to most important facts. According to prosecution case upto the stage of 161 Cr. P. C. existence of a pagdandi is not disclosed. If we ignore from our consideration the statement of P. W. 1 and P. W. 2 that they came on Jaunpur-Mirzapur road from the pagdandi one of them will be able to in front of the petrol pump straightaway. It will especially go against P. W. 1 Raj Narain Singh. If we consider the fact that they came by pucca road then they shall emerge out 1 to 1 1/2 furlongs from the Bhita. Bhita itself is some distance away. Thus, by the time they will be attracted to the spot the entire incident will be over. It would not be possible for them to see the events so vividly as they had tried to spell it out in Court. It would be wholly difficult for P. W. 1 Raj Narain Singh to cover up the distance of more than two furlongs to be in the thick of the scenario. This further makes the First Information Report at 9.10 a. m. a highly doubtful document and the story of firing on him will become equally doubtful. It would be wholly difficult for P. W. 1 Raj Narain Singh to cover up the distance of more than two furlongs to be in the thick of the scenario. This further makes the First Information Report at 9.10 a. m. a highly doubtful document and the story of firing on him will become equally doubtful. It apparently was prepared after all the formalities were completed. A version discrediting the defence case was culled out first and the First Information Report was drafted thereafter. Probably Sunil Singh P. W. 2 carried it to police station with him when he was sent for his medical examination. This is why there is no much of delay in his medical examination. According to Narendra Pratap Singh P. W. 11. P. W. 1 Raj Narain Singh only told him about the murder of his two sons and nothing else and he proceeded to the spot immediately after instructing the Head Moharrir to do the needful. It is beyond reasons why he did not wait for the registration of the case and why he did not think it proper to visit the spot after taking the copies of the G. D. and check First Information Report. He could have easily recorded the statement of the informant before proceeding for the spot. It is not in the statement of any police witness that the copy of GD. and check First Information Report were sent to him through any constable at any later stage. All the Sub- Inspectors had gone to the spot with S. S. I. Sri N. P. Singh P. W. 11. Hari Nath Yadav S. H. O. joined him later on at 9.30 a. m. straight from police lines, Jaunpur after receiving the information of double murder there. Rescue operation of Sunil Singh started after his arrival and after the arrest of the two appellants. The appellants had held Sunil Singh captive in the show room not for nothing. They must have a version to give to the police on their arrival. All the three appellants were at the petrol pump. One of them left from the northern door of the show room empty-handed for informing the police on telephone. The appellants had held Sunil Singh captive in the show room not for nothing. They must have a version to give to the police on their arrival. All the three appellants were at the petrol pump. One of them left from the northern door of the show room empty-handed for informing the police on telephone. Had the incident occurred in such a high handed manner as alleged the other two also would have abandoned the spot and not waited there with their captive for the arrival of the police to be an easy prey for the policemen. This sang in the prosecution story remain wholly unresolved. It creates as serious doubt in the authenticity of the prosecution story. The 32 bore revolver contained a spent cartridge. It is not any one's case that it was fired in the entire incident even once. Same is the position of the pistol. This is yet another circumstance, which lends greater credence to the defence case as suggested to these three eye-witnesses by the defence side. The defence version in these circumstances holds ground firmly. The over all conduct of the informant also lends assurance to the fact that P. W. 1 was not here from the beginning but reached there after some time. Appellant Pushkar Pandey has submitted his written statement under Section 313-A Cr. P. C. According to this statements he was present at the petrol pump. His servant was distributing the petrol to the persons who have obtained a slip after depositing the price for petrol. On 24-5-1994 in the morning Rajesh Singh cheached the petrol pump on his motorcycle and tried to obtain forcibly the petrol without making any payment for the same and obtaining the slip. The servant told him that there is no petrol. He snatched the Nozzle and the pipe from him and tried to take petrol himself. On this his servant snatched the Nozzle from him. Rajesh Singh was pushed aside by him. He started abusing. His servant asked him to desist from doing so. Brijesh Singh retired abusing and threatening that he will come again with his brother and then he will see them. A little thereafter the two deceased with country made pistol and revolver and Sunil Singh with a gun alongwith some others arrived there. Others were also armed with country made pistol and bombs. Brijesh Singh retired abusing and threatening that he will come again with his brother and then he will see them. A little thereafter the two deceased with country made pistol and revolver and Sunil Singh with a gun alongwith some others arrived there. Others were also armed with country made pistol and bombs. Immediately on their entry they extended threats and exhorted their companions to kill all the persons present at the petrol pump. They also exhorted to loot the petrol pump and set it afire. They were rushing towards them. Right side glass of the show room gave away to the fire made by the two deceased and other companions. The companions were burling bombs also. They reached to the cash. When the two deceased and others with their weapons moved towards the south aiming their barrel on him then his servant opened fire on them with his DBBL gun. The fire struck the two deceased. Sunil Singh fell down on the ground in the melee. His servant after placing the gun with the wall of the show room ran away from the spot. Till now he is not traceable. At the relevant time the cash of Rs. 72. 000/- was there. The police has removed all the relevant registers: sale register, stock register and attendance register of the employees in order to wipe out all evidence supporting the defence case little cash was left. The gun was not recovered from his possession. It was recovered from out side the show room. It was resting with the eastern wall. No weapon was recovered from Karunakar Pandey. They weapons which were claimed to have been recovered from the counter were those weapons which were possessed by Rajesh, Brijesh and their companions. Pushkar Pandey did not claim that he fired on any of them. He had further stated that they were not knowing Sunil Singh from before. The version about Sunil Singh having any quarrel with him and assault on him are false fabricated events. Even claim of his recovery from his show room is also false. Sunil Singh's father was an Inspector in the police department. The report of the prosecution side was ante-timed and his report despite repeated request was not taken down for investigation by the police. Only three weapons, unlicensed, were claimed to be found from the two accused and the counter besides their licensed gun. Sunil Singh's father was an Inspector in the police department. The report of the prosecution side was ante-timed and his report despite repeated request was not taken down for investigation by the police. Only three weapons, unlicensed, were claimed to be found from the two accused and the counter besides their licensed gun. Two deceased and Sunil Singh are those three persons whose weapons it could be. 25. KARUNAKAR Pandey has denied the recovery and said that all these were fake. All the entries in the recovery memos and General Diary were claimed by him to be maliciously made. Investigation was conducted according to him in a malicious and partisan manner and true facts and had been suppressed by the police in collusion with the informant. He denied any recovery from his person. Prabhakar Pandey has also denied the prosecution story and stated that a false story was cooked up against them. He stated that he was not present when the police arrived there. In response to question No. 78 he stated that Sunil Singh was a relation of Raj Narain and Ramjeet Maurya is his Halwaha. Under the pressure they had made false statements. A prosecution on false facts was started by the local police suppressing the truth. He denied his presence at the spot and pleaded that he is innocent. The defence appear to have tried to establish that Sunil Kumar Singh is different by examining Shobh Singh. But we do not find the fact established because parentage of this accused was not proved from check report. 26. THUS, examining the evidence in its totality specially the eye-witnesses including the injured, Sunil Singh, we find it difficult to accept their evidence that, the incident had taken place in the manner as alleged by them. The reason apparent on the face of the record is that from the evidence of the witnesses and the medical evidence we find that only two injuries of 12 bore gun were sustained by the deceased boys, i. e., one injury each. One of the injuries as suffered is the injury on the front part of his person, i.e., Brijesh Singh. Admittedly he was driving the motorcycle. His injury is on the left side of chest, Rajesh Singh has suffered injury on the right side back of chest. One of the injuries as suffered is the injury on the front part of his person, i.e., Brijesh Singh. Admittedly he was driving the motorcycle. His injury is on the left side of chest, Rajesh Singh has suffered injury on the right side back of chest. Now the question which arose is that how different type of injury were suffered by the two deceased when both of them were on one motorcycle. Hardly any time would have been taken in firing the shots and before any of the two deceased could have realised the shots would have pierced into them. It was double barrel gun. In these circumstances it is difficult that one of them will received injury on his front and the other will receive injury on the back. Moreover Brijesh was driving so as soon as he would suffer the injury vehicle will be out of his control. It is most likely to fall or collide. Both the dead- bodies were lying at a distance from each other P. W. 1 says that both of them have fallen from the motorcycle. It is already discussed that when on of them was driving in that situation both of them should have been on one side of the motorcycle and vehicle in all likelihood would have fallen on their legs. It normally happens when a motorcycle suddenly falls. Once of them had received any injury on their person not even a stretch other than fire-arm injuries. This absence leads to a serious doubt in the authenticity of the prosecution case that they were on the motorcycle when they had suffered injuries. The prosecution story of firing upon Raj Narain Singh and Adya Prasad Singh who claimed to have come on the road when quarrel was going on which Sunil Singh at the petrol pump and he was dragged to the show room where ultimately he was lodged before the arrival of the two deceased is also highly doubtful. The prosecution evidence shows that before he was lodged the two deceased had arrived at the petrol pump on their motorcycle. If one of the shot already fired in the air or upon the two witnesses and a shot fired on one of the deceased the second shot will require the appellant to reload his weapon. But none of the witnesses have stated that Pushkar Pandey has reloaded his weapon. If one of the shot already fired in the air or upon the two witnesses and a shot fired on one of the deceased the second shot will require the appellant to reload his weapon. But none of the witnesses have stated that Pushkar Pandey has reloaded his weapon. The statement of Sunil Singh recorded in connection with 25 Arms Act was not on record of this case although they were tired in the same Court for the offence of Arms Act as well. After the shots were fired on both of them another shot was fired by Pushkar Pandey. In all the prosecution now shows that four shots were fired from the defence side. If we examine the First Information Report no fourth shot was mentioned therein. Even in 161 Cr. P. C. statement no one had said so. Even in Court P. W. 1 had not stated about the fourth shot. Bhanu Pratap Singh, Advocate, used to stand by the side of Raj Narain Singh during recording of his statement in the Court. Apart from it in order to over come the shortcoming this witness had alighted Rajesh deceased from the motorcycle and claimed that he was running behind the motorcycle of Brijesh Singh to reconcile their case with the medical evidence. This improvement during trial unerringly leads to the inference that the prosecution had not correctly depicted the manner in which the incident had occurred. The medical evidence contradicts them. Apart from it even the presence of the two witnesses Raj Narain Singh and Adya Prasad Singh is also rendered doubtful from the fact that letter produced by him to show that he was going to check the copies of Board Examinees at Nagar Palika College, Jaunpur is not proved on record beyond reasonable doubt. No official of the Board was examined to establish that he was appointed for this job and any letter was issued to him from the office of the Board. Even Adya Prasad Singh was not produced. So far as Sunil Kumar Singh is concerned we have examined his injuries. These injuries are not of any fire-arm but are of a blunt object. The prosecution case is that he was dragged and assaulted before he was lodged in the show room by the appellants. Earlier we have discussed his injuries. Even Adya Prasad Singh was not produced. So far as Sunil Kumar Singh is concerned we have examined his injuries. These injuries are not of any fire-arm but are of a blunt object. The prosecution case is that he was dragged and assaulted before he was lodged in the show room by the appellants. Earlier we have discussed his injuries. It is also a fact that his medical examination had taken place sufficiently belatedly. He was sent from the petrol pump to the police station at 9.30 or 9. 35 a. m. by a jeep. According to Head Moharrir he was dispatched from the police station for his medial examination at about 11.15 a. m. His medical examination took place at about 1. 50 p. m. If we peep through the defence story he was one amongst the miscreants who came alongwith two deceased variously armed with lethal weapons. After the two deceased were shot at this Sunil Kumar Singh, according to their case had fallen in the melee. In that process it may be probable that he may have suffered these injuries. Injury Nos. 1 and 2 and on the right side chest. One is an abrasion and other is the injury on the back of the lower arm. Thus, in the circumstances, either his injuries were self suffered in order to be a witness in the case or suffered by him any time when he attempted to flee from the spot after two were dead. Although the defence has not come with a case that they had caught him and lodged in the show room. This probability in the circumstances available to from the evidence cannot possibly be ngated. The police had deliberately withheld from ballistic examiner the other weapons claimed to have been recovered from the appellant especially when four spent cartridges were recovered. 27. FAILURE of the police officials to prepare any side plan of the show room from where they had recovered illegal arms immediately further goes a long way to discard their version in this record. Then manner in which these articles were sealed before they were sested with the recovered cartridge is also a circumstances under cloud. The bundle containing the recovered arms were dispatched through a constable to the Forensic Science Laboratory, Lucknow and they were returned back with the same constable for being sent again because they were not separately sealed. Then manner in which these articles were sealed before they were sested with the recovered cartridge is also a circumstances under cloud. The bundle containing the recovered arms were dispatched through a constable to the Forensic Science Laboratory, Lucknow and they were returned back with the same constable for being sent again because they were not separately sealed. This was sufficient opportunity for the prosecution to tamper with them. The weapons DBBL gun could have been fired at this stage and cartriges may have been sent to the ballistic expert. Therefore, no authenticity could be attached to the report of the expert in the circumstances discussed above. The presence of the police men in large number at the spot soon after the incident is belied by the circumstances that no statement of the informant was recorded by the police at the police station. Injured Sunil's statement was also not recorded at the spot by the police. Had there been first information report available to the police at 9.10 a. m. this anomaly would not have been there for us to evaluate critically. P. W. 3 claimed that he came that he came near the place of the occurrence for grazing his cattle. In our opinion abundant barren fields were available in the vicinity of his house so he had no need to come down to a distance of 1200- 1500 paces from there to the Bhita to graze his cattle. His cattle could have easily grazed in this barren agricultural land near his own house. In the circumstances his presence at the spot is highly doubtful. FAILURE to examine him under Section 161 Cr. P. C. for two days is also a circumstances to strengthen the above conclusion of ours. Admittedly, the presence of so many persons is accepted to the prosecution up to the stage of investigation. During the trial the witnesses had denied the arrival of public witnesses despite a good habitation adjacent to the petrol pump being accepted by the prosecution side. These persons must not be ready in our opinion to suppress the truth and speak falsehood therefore their presence is safely denied in Court. Even Adya Prasad Singh whose presence during incident is admitted to the prosecution and is also a witness of inquest was not examined by the prosecution. These persons must not be ready in our opinion to suppress the truth and speak falsehood therefore their presence is safely denied in Court. Even Adya Prasad Singh whose presence during incident is admitted to the prosecution and is also a witness of inquest was not examined by the prosecution. Interfered and doubtful witnesses were examined by the prosecution to establish its case during the trial. These witnesses had also changed the link road by which they came to the main road in front of the petrol pump. Close scrutiny of their statements in this connection clearly shows that they had adhered to the pucca road they would not have been anywhere in front of the petrol. Raj Narain Singh in the circumstances could not be a probable witness. FAILURE to establish from any reliable evidence that he was going to check the answer books at Nagar Palika College, Jaunpur is yet another circumstances. He is the only witness of this fact and the there was no verification made from the Board authorities or the examination center by the I. O. These are the circumstances which make the prosecution story highly doubtful. Even the motive has not been established. Neither in the First Informant Report not in 161 Cr. P. C. statement any motive was attributed or any animosity was alleged. From the evidence it is gathered that the prosecution side was regularly taking petrol from the petrol pump of the appellants. According to P. W. 1 they have many small and heavy vehicles. Therefore, we are not able to cull out any motive for the appellants to behave in a manner to irrational. The circumstances are such that there is every possibility that the incident had taken place in some other manner. The deceased persons may have taken on their head to teach the appellants a lesson for the quarrel that had taken place before the incident between Rajesh Singh and their servant. The story that there was some souffle between Sunil Singh and the appellants and he was dragged and confined in the show room and Raj Narain Singh tried to rescue him in the meantime before the two deceased came on the motorcycle to the spot does not stand scrutiny. The defence story has some grain of truth. Sunil Singh might have been there with his companies apart from the deceased persons. The defence story has some grain of truth. Sunil Singh might have been there with his companies apart from the deceased persons. It is not alleged by the prosecution witnesses that nay firing was made by any one other than one appellant. In all probability these weapons were fired by the two deceased and in order to ward of the aggression firing was resort to from their side whether it was Pushkar Pandey or any one else who did it. These fires apparently were made for their defence of person and property cannot be called a remote possibility. It is our opinion distinct and strong. 28. The investigation in this case that were have discussed earlier leave no room for doubt that it was not only perfunctory but also highly biased. The weapons recovered from the deceased were planted on the defence side. The site plan of the show room prepared by Indresh Yadav cannot be given much credence because it was prepared long after the incident and since no public witness of this recovery was produced we are not prepared to accept the authenticity of this site plan as well as the recovery. It was a part and parcel to the principle offence of wrongful confinement hence the site map of it should have been prepared by the I. O. of the main offences. It is further proved to us from the record especially from the statement of Hari Har Nath Yadav P. W. 10 that when he reached the spot he found huge gathering at the petrol pump and on his arrival he made enquiry from the public and the police men present there regarding the incident. The name of Sunil Singh came to his notice from amongst the people in this gathering. Even the arrest of the appellant in the manner as alleged by the prosecution is rendered doubtful. The police party had already reached there. There was no reason why any attempt by these appellants was made to run away when so much of police force controlling the gathering was there. They had ample opportunity to do so before their arrival but they did not. One of them had already gone from there immediately afterwards. He received information by R. T. message when he had gone with force to attend the election duty. They had ample opportunity to do so before their arrival but they did not. One of them had already gone from there immediately afterwards. He received information by R. T. message when he had gone with force to attend the election duty. Thus his statement that he was on election duty at the time when he reached the police line, Jaunpur leave us to infer that he is telling a lie. No document was produced to prove this fact. No General Diary was produced and he made a false claim that no entry was made there. He did it to avoid any adverse claim by defence for himself not investigating the case and handing it over to S. S. I. N. P. Singh. In these circumstances our inference is that the informant did not reach the police station and the first information report was not registered there at 9.10 a. m. The General Diary of the police station was stopped after receiving some communication. Mariyahun market was little away from the spot. The news must have spread like a wild fire and some telephonic massage to the police is possible but the police had suppressed all these facts in order to side with one, the complainant party, in the occurrence. One of the accused had left the spot to give informant of the incident to police. 29. IN the result both the appeals succeed and are allowed. The order of conviction and consequent sentences are hereby set aside. The appellants are acquitted of all the charges. Two appellants are on bail. They are not required to surrendered. Their bail bonds are cancelled and sureties discharged. The appellant Pushkar Pandey is in jail. He shall be set at liberty forthwith. Appeals allowed.