S. K. AGARWAL, J. ( 1 ) THIS appeal was filed by appellant Krishna Raj against his conviction under S. 302, I. P. C. and the sentence of life imprisonment. ( 2 ) BRIEF facts of the case are that the informant Raj Narain and his brother Ram Nath alias Terhai were residents of village Kadipur, P. S. Jalalpur, district Jaunpur. The informant Raj Narain had a shop in Jafrabad market whereas his brother had a shop in the market at Sarkoni. At about 5. 00 P. M. the informant came to the shop of his brother to help him. They are blacksmiths and were engaged in making utensils. In the meantime one of his relation Pyare Lal also came there. At about 7. 30 P. M. they along with deceased Ram Nath alias Terhai and his wife were coming to their house i. e. village Kadipur. His brother Ram Nath had a cycle. They were covering the distance on foot. When they reached near the Sarmoni Railway Station, its western cabin, on the road, Krishna Raj, appellant, Daya Ram, Ram Murat and Samarjeet, son of Jagpat T. T. E. accosted them. Samarjeet, Daya Ram and Ujjar Singh made the informant, Pyare Lal and wife of the deceased to sit on the road. They also hurled abuses on them and yelled that you people are harassing the villagers. Krishna Raj fired a shot on deceased Ram Nath alias Terhai. He fell down with his cycle. Krishna Raj loaded his pistol and fired again a shot on his head. As a consequence of that the brain matter spilled all around. They raised alarm after the departure of the accused persons. The cabinman, watchman and one Sabhajeet son of Kallu Yadav reached the spot. Many people too had arrived at the scene of occurrence. On account of past enmity, Krishna Raj committed this murder. Later on a report was lodge at about 9. 30 P. M. at P. S. Jalalpur. The distance between the place of occurrence and police station is about 4 Kms. ( 3 ) AFTER the submission of the charge-sheet under S. 302, I. P. C. , the appellant Krishna Raj was put up for trial under S. 302, I. P. C. simpliciter. 30 P. M. at P. S. Jalalpur. The distance between the place of occurrence and police station is about 4 Kms. ( 3 ) AFTER the submission of the charge-sheet under S. 302, I. P. C. , the appellant Krishna Raj was put up for trial under S. 302, I. P. C. simpliciter. Other accused persons were tried under S. 302/34, I. P. C. Three of the appellants Ram Murat, Daya Ram and Amarjeet were acquitted by the trial Court. No Government appeal was preferred against their acquittal. Krishna Raj, however, was convicted and sentenced as stated above. The appellant has denied his participation in the incident and claimed that he had been falsely nominated in the case because of enmity and the fact that the deceased was a MUKHBIR (informer) of the police. ( 4 ) IN support of its case the prosecution has examined Raj Narain, P. W. 1, Sabhajeet, P. W. 2, Smt. Umra, P. W. 3, wife of the deceased as witnesses of fact, Sabhajeet was declared hostile. Five formal witnesses were also examined by the prosecution. They are; Vijay Shankar Singh, P. W. 4, Head Constable who proved the chick report etc. , Vyasmuni Misra, P. W. 5, is the Investigating Officer (hereinafter referred to as io) and had completed all the necessary formalities like preparation of inquest memo, site map, recording of the statements of the witnesses etc. Ambika Prasad, P. W. 6 is the second IO. He took over the investigation from P. W. 5 on 6-3-1979 and submitted the charge-sheet. Dr. B. P. Gupta, P. W. 7, is the Surgeon who had conducted the autopsy on the person of deceased Ram Nath alias Terhai. Constable Ram Lochan Ram, P. W. 8 had escorted his dead body to the mortuary. In the nutshell this is the entire evidence that has been examined by the prosecution in this case. The post-mortem examination in this case was conducted as earlier stated by Dr. B. P. Gupta, P. W. 7. Four fire-arm injuries were found on the person of the deceased. The post-mortem was conducted on 17-2-1979 at 3. 30 P. M. The inquest memo was also prepared on the same morning. Out of these 4 fire-arm injuries, 3 injuries apparently may be from independent shots. There is no blackening, scorching and tattooing in any of these injuries. Four fire-arm injuries were found on the person of the deceased. The post-mortem was conducted on 17-2-1979 at 3. 30 P. M. The inquest memo was also prepared on the same morning. Out of these 4 fire-arm injuries, 3 injuries apparently may be from independent shots. There is no blackening, scorching and tattooing in any of these injuries. In the opinion of the Doctor these injuries were sufficient in the ordinary course of nature to cause death of Ram Nath alias Terhai. It was caused due to shock and haemorrhage. The post-mortem examination report is Ex. Ka-14. The Doctor had stated that he cannot say whether injury No. 1 on the head could be caused if the barrel is placed in contact with the skin. What could be the possible distance for this injury ? He had further stated that in a case of contact fire charring, scorching and tattooing will be there. He further stated that charring and tattooing is possible only from close range. It is not possible from a distance in any case beyond two-three yards. Neither the prosecution proved nor the defence has cross-examined the Doctor whether these 4 injuries could be the result of two shots or 3 shots. ( 5 ) THE appellant has denied his participation in the incident and stated that the deceased was a MUKHBIR of the police. He was a hardened criminal and used to falsely implicate villagemen in false crimes. He has been falsely roped in this case at the instance of police. The S. O. concerned colluded with him can be easily gathered from the cross-examination of the witnesses. ( 6 ) LEARNED counsel for the appellant has urged. Firstly that the medical evidence is inconsistent with the prosecution story. The prosecution has come up with a case of two shots fired from close range which stood totally belied from the medical evidence. The second submission is that the presence of the informant and the sister-in-law, in the circumstances brought forth, is highly doubtful. The wife shall not be able to be with her husband. It is likely that she would be at her house preparing food for him. The F. I. R. is also not an unblemished document. It apparently was prepared in collusion with the police. From the prosecution evidence it bears out that the informant himself may have been the culprit. The wife shall not be able to be with her husband. It is likely that she would be at her house preparing food for him. The F. I. R. is also not an unblemished document. It apparently was prepared in collusion with the police. From the prosecution evidence it bears out that the informant himself may have been the culprit. ( 7 ) IN order to appreciate the submissions we have to examine very closely the evidence of these two witnesses. Only 3 witnesses, as earlier stated, are available to the prosecution in support of its case. Out of them P. W. 2, Sabhajeet was declared hostile. He was only independent witness. We are left with, therefore, testimony of only two witnesses i. e. Raj Narain, P. W. 1 and Smt. Umra P. W. 3. ( 8 ) RAJ Narain, P. W. 1 is the informant. His case was that he had gone to the shop of his brother from his own shop and reached there at 5. 00 P. M. He assisted his brother in making the utensil (KADHAHA ). He is a blacksmith by profession. The distance between his shop and the shop of his brother is about 11/2 KOSE i. e. 3 miles. When the two brothers and wife of the deceased were busy in preparing KADHAHA their relation Pyare Lal also came there. This Pyare Lal has his house at a short distance from the shop of deceased Ram Nath towards north. They persuaded him to accompany them upto their house. No appropriate reason was given for his accompaniment. Payare Lal has not been examined in the trial. When the party reached near the western cabin of the railway station, which is at a distance of about 1 Km. from their shop, they were accosted by the appellant and 3 of his companions who were acquitted by the trial Court. The other persons were residents of different villages. The evidence shows that they were on inimical terms with the deceased and the accused appellant, therefore, the learned Sessions Judge has rightly held that they were not likely to join hands with Krishna Raj, the appellant. The incident according to him had occurred at about 7. 00 P. M. According to the informant Daya Ram was having a Danda in his hand. The other two had no weapon. The incident according to him had occurred at about 7. 00 P. M. According to the informant Daya Ram was having a Danda in his hand. The other two had no weapon. They ordered the informant and the wife of the deceased to sit down and Krishna Raj had fired a shot and again re-loaded his pistol and repeated another fire. Prosecution, thus has set up a case of two shots from close range. They were made to sit down 10 steps away from the deceased. It is claimed by the informant that the entire incident was visible from that distance. No source of light has been mentioned in the F. I. R. However, in the trial Court this witness came up with the story of a stationary truck near the line with its head lights on. Its light was available to him it is claimed. The truck developed some snag so it was left there. From the evidence it is apparent that the truck was standing on a higher level from the place where the incident had occurred. It had been stressed that this light will not be available even if the case about its presence for the sake of arguments is accepted. Subsequently it was added in his statement that Amarjeet was armed with knife and the sky was clear and there was light of the truck and the stars in which he claimed to have identified the accused persons. If we exclude the truck light to them, the other light would not have been sufficient for them to identify the accused persons from a distance of 10 steps. He had scribed the report at a PAAN (betel) shop in the market and carried it to the police station. The report is Ex. Ka-1. It was handed over to the official concerned at the police station at 9. 30 P. M. He had evaded the response to all the questions on inter se enmity between Raj Narain, the deceased. He also made evasive replies to uncomfortable questions on inter se enmity between accused. The learned Sessions Judge has carefully scrutinised this and had acquitted other 3 accused persons on the ground that their participation is highly doubtful due to their inter se disharmony. Regarding accused Amarjeet he had admitted that his actual name became known to him after some time. The learned Sessions Judge has carefully scrutinised this and had acquitted other 3 accused persons on the ground that their participation is highly doubtful due to their inter se disharmony. Regarding accused Amarjeet he had admitted that his actual name became known to him after some time. Initially in the F. I. R. name of Sabhajeet was disclosed. It is also admitted that Amarjeet and Samarjeet are sons of Jagpat TTE. Initially he had stated that they were slapped but subsequently admitted that they were not slapped but only abused. He has admitted that there is a big grove between the factory of Ram Das Chaubey and the railway cabin. Many plants are standing there. These are very old plants. These trees are high, thick and densely spread. These trees are two feet below the roads level. According to him, the railway track goes downwards continuously from the western cabin towards south. Their pathway falls at this lower level of the track. On the eastern side, the ground level is quite high and there was stacks of railway sleepers in between. Such stacks were in the north south. There was some other railway materials which were also stored there by the Railways. This entire cross-examination apparently was intended towards non-availability of any light on the road from the side of railway lines and the cabin. From his statement, especially paragraph 9, it is apparent that the deceased was a criminal. He had claimed that he had written in the report that a truck with its light on was standing in the south but why it is not in his report, he failed to offer any explanation. He had further stated that the night was clear and star light was available in which he had identified the accused persons but this fact is not there in the F. I. R. He had stated that he did tell this fact to the IO. According to him in the report he had stated that he had gone to his brother on foot but this fact is not there in the F. I. R. According to him he used to return to his house from his shop straight. He used to come to the brothers shop only on some urgency or on his call. There was any call from his brother he did not state for the date of occurrence. He used to come to the brothers shop only on some urgency or on his call. There was any call from his brother he did not state for the date of occurrence. Pyare Lal came from Varanasi. He was keen to go to his house but they have detained him and persuaded him to accompany them. At the time of incident, his brother was cross-examined in a case of assault upon Station Master. They were also accused in that case. The incident had occurred some 30-32 steps from the railway cabin in the south. He has denied the suggestion that there was no light available at the spot and his statement regarding the presence of a trucks light was deliberate to support his case regarding the availability of light. He has also denied that no light from the southern side would travel down to the western side because level of the place of occurrence is too low in comparison to the southern side and there were sleeper stacks obstructing its availability. Moreover, a trucks light will beam straight and shall not spread much further left or right so as to be available to these witnesses across railwayline. The presence of a truck is not shown in the site plan as well. According to him they had reached the spot of incident within 15-20 minutes. The accused were coming from the front. They were on foot. The first shot was fired on his abdomen from a very close range. After receiving the injury, the deceased fell down. The second shot was fired by placing the barrel on the scalp and the pieces of the scalp and brain matter had spread in a distance of 2-4 hands. Gun was the weapon used in the incident. They have raised no alarm before the departure of the accused persons from the spot, then said they raised alarm but were not fired upon. He had denied the defence suggestion that neither he nor his sister-in-law P. W. 3, were present there when the incident occurred. He also denied the suggestion that they have not witnessed the murder. He denied that deceased was a criminal and had many enemies. He was killed by one such enemy. He has denied the defence suggestion that the report was transcribed after the spot inspection was made by the Police Officer, till then no report was registered. He also denied the suggestion that they have not witnessed the murder. He denied that deceased was a criminal and had many enemies. He was killed by one such enemy. He has denied the defence suggestion that the report was transcribed after the spot inspection was made by the Police Officer, till then no report was registered. ( 9 ) WE have the evidence of the hostile witness P. W.-2, Sabhajit. According to him he did not see the occurrence. When he was proceeding from his house towards market on the road the informant Raj Narain met him. He told him that Krishna Raj, Samarjeet and his other companions have killed his brother. He had not seen any one of them running away from the spot. He had stated that wife of the deceased was crying there and many other villagers were also present. In cross-examination by Public Prosecutor he stated that when he came from the Usarahiya Abadi, a report of first shot was heard by him and as soon as he reached near the railway bridge, report of the another fire was also heard. He had lighted the torch in the darkness and had seen krishna Raj, Daya Ram, Ujjar Singh and Samarjeet moving away at fast pace. This was the statement given by him to the IO. Initially he claimed that he has disclosed the name of Samarjeet as Amarjeet. He did not know his name till then but he learnt it later on. He had admitted that he has disclosed that when he reached near the cabin, he had seen the dead body of Terhai. His wife, brother and other kith and kins were weeping. They told him That Krishna Raj etc. had killed Ramnath. The villagemen reached there afterwards. In cross-examination he admitted that the place of occurrence is on lower level and he was on the higher surface and railway sleeper stacks were also placed there. Thus, from his statement one fact is very clear that there was darkness at the scene of occurrence when the incident occurred otherwise he was not required to flash his torch. His seeing these accused in the torch light from considerable distance is not acceptable. It is also a fact that he could only see the assailants running away with either their back towards him or only one side of their face exposed. His seeing these accused in the torch light from considerable distance is not acceptable. It is also a fact that he could only see the assailants running away with either their back towards him or only one side of their face exposed. In none of these situations it was possible for him to identify the culprit. ( 10 ) SO far as P. W. 3 Smt. Umra is concerned, her presence has been challenged very seriously by the defence. She has claimed that she was present at the shop of her husband in Jafrabad. Her brother-in-law (Devar) Raj Narain came there. Pyare Lal also came there at about 7. 00 P. M. They had started for their house soon thereafter. When they reached behind the cabin of the railway station, her husband went for urination. They went on. In the meantime the appellant along with his 3 companions came there. In the hand of Krishna Raj, agun was there. They had made them to sit down where they were and Krishna Raj fired upon her husband in the meantime. He fell down with his cycle on the ground. Krishna Raj ran away to some distance and then returned and fired a second shot by placing the barrel in contact with the scalp of her husband. She claimed that thereafter the accused persons ran away. She had admitted that her statement was recorded by the Investigating Officer after two days. In her statement the name of Amarjeet was not there. Amarjeet has 4-5 brothers. One of them is Samarjeet also. She denied that she disclosed to the IO that the eldest brother of Samarjeet is Sabhajeet. She had no knowledge that how this fact occurred in her statement. She denied that she was not present when Ramnath was fired upon. She also denied that she was present in her house in the village and was called to the spot later on. She did not go to the police station with Raj Narain. Raj Narain did not prepare the complete report of the incident on the spot. The IO came to the spot afterwards. She denied that the report was prepared after his arrival. Her statement was not recorded by the IO by that time. She did not go to the police station with Raj Narain. Raj Narain did not prepare the complete report of the incident on the spot. The IO came to the spot afterwards. She denied that the report was prepared after his arrival. Her statement was not recorded by the IO by that time. According to her Raj Narain, PW-1, came to her shop only a minute before their departure from Jafrabad whereas according to Raj Narain he reached there two hours before their departure and helped his brother in the preparation of KADHAHA. She further stated that her brother-in-law used to come back to his house with them which is not supported by the evidence of P. W. 1. Her statement to this effect was made purposely to make the presence of P. W. 1 plausible. It is also made to justify the coming of P. W. 1 to the shop of his brother. According to her Pyare Lal came there two hours before. She had minimised the distance between her and the accused to 2-3 steps. This has been made purposely to make it possible for her to identify the culprits. According to her they reached from their shop to the place of occurrence within 1 minute which is contrary to the statement of the informant. According to him they reached there within 15-20 minutes. According to her occurrence took place at a distance of 4 LATHAS from her which means some 50-60 feet. All the four were surrounded and they were made to sit down. First shot hit her husband on the chest. The second shot struck him on the eye. Thereafter no other shot was fired upon. She did not see that the scalp was broken into pieces and it had spread around. She could not notice where these pieces fell. She admitted that she did not remember whether she disclosed to the IO that her husband had gone to attend the urge to make water. When her statement was read over it was not found there. Why it was not there she failed to offer any explanation. She admitted that she had disclosed to the IO that Krishna Raj ran for a distance after firing first shot and then returned back and fired a second shot by placing the barrel on the scalp. When her statement under S. 161, Cr. Why it was not there she failed to offer any explanation. She admitted that she had disclosed to the IO that Krishna Raj ran for a distance after firing first shot and then returned back and fired a second shot by placing the barrel on the scalp. When her statement under S. 161, Cr. P. C. was read over to her it was not found there. She denied that Raj Narain and Pyare Lal were not with them. She denied that Krishna Raj did not fire and they had involved him on account of enmity. Her presence was further rendered doubtful by the fact that she admitted that her husband on being fired fell with the cycle. He was going to make water. The cycle will not be taken by him if he was accompanied by his brother, Pyare Lal and his wife. It further shows that he was on the cycle all alone when he was fired upon. The enmity of the deceased with the appellant is an admitted fact that the appellant had prosecuted him under S. 307, I. P. C. in which, according to the informant, a final report was submitted by the police. Some other litigations were also contested between them. In the circumstances, false nomination of this appellant on the ground of suspicion and enmity cannot be ruled out. It is also a fact that deceased had criminal antecedents and may have more enemies than the appellant alone but the gravamen of the suspicion fell on him alone because of chain of litigations. ( 11 ) IN the nutshell we are of the opinion that the presence of the two witnesses, P. W. 1 and P. W. 3, Raj Narain and Smt. Umra, is highly doubtful at the spot where the deceased Ramnath was done to death at 7. 00 P. M. The complete failure of the Investigating Officer to initiate any investigation proceeding during the night except search of the appellant and his companions also create serious doubt with regard to version having seen the light of the day on the date of occurrence itself. We do not find any valid reason for the informant to have gone to the shop of his brother. We do not find any valid reason for the informant to have gone to the shop of his brother. A scrutiny of his entire evidence does not furnish us any such evidence which may entitle us to believe that he may have gone to the shop of the deceased or accompanied him from there. He himself did not offer any plausible reason for his going to deceaseds shop. It does not fall on his route to his home. The fact that he was called by his brother was not there in the F. I. R. and in his S. 161, Cr. P. C. statement. It is also his assertion that he used to return from his own shop normally alone and does go to his brothers shop either on some urgent work or on his call only. There was no such thing on the day of incident. In these circumstances, we are not prepared to accept the testimony of P. W. 1 that he had gone to the shop of his brother on this eventful day. There are serious contradictions in their statements too. Availability of light was also highly doubtful. ( 12 ) COMING to the testimony of P. W. 3 we have the statement of P. W. 2, Sabhajeet. According to him P. W. 3 was present when he reached the spot and his admission that he had not seen the assailants moving away is also of relevance. According to him, it was dark at the time of occurrence is also a relevant fact so much so that he had to flash his torch. The fact that these witnesses placed themselves at a distance of 10 steps from the deceased was probably to facilitate the identification of the assailants who had fired upon the deceased. The presence of this lady is also not probable. The village is just a kilometer from the spot of occurrence. After the incident on a call sent by those who had noticed the dead body lying there she could easily be at the spot. She being a house wife, in the normal circumstance, be at her home to keep the food ready for her husband who will return after a whole days labour. He will like his food immediately on his return from his shop. He was a blacksmith. She being a house wife, in the normal circumstance, be at her home to keep the food ready for her husband who will return after a whole days labour. He will like his food immediately on his return from his shop. He was a blacksmith. In these circumstances even if she had been at the shop she must have returned sometime before the occurrence to prepare the food for him. Her evidence on manner of assault is not corroborated by medical evidence. It further shows that she did not witness the occurrence. Her conduct was also abnormal. She did nothing of that sort that a Hindu woman would do if her husband was shot in her presence. He did not even touch him to find out for herself whether he was alive. In our opinion, the above circumstances are more than enough to discard the testimonies of these two witnesses. ( 13 ) NO uniform law about the appreciation of evidence could be laid down by any court of law. In criminal cases it always depends upon the quality of the evidence and surrounding circumstances that could be available from the record. In a given set of facts, the witnesses may be believed but in an other similar set of facts, the witnesses may be discarded. It all depends upon, as earlier said, the quality of the evidence adduced by the prosecution and the surrounding circumstances. It is no gainsaying that at times even after discarding the prosecution witnesses, a conviction can be maintained only on the basis of the circumstances that are available to the Court from the record. In the cases of relation witnesses, no different law could be envisaged. The law of appreciation will be the same and standard for appreciation of their evidence will also be same. He has a better chance than other witnesses because there is less possibility of false implication by them of any innocent person. A rule of extra caution could be sounded in their case i. e. examination of their evidence with greater caution. However, in a case where the evidence clearly is suggestive of a large number of persons being falsely implicated, the conviction of one man only in such cases on the basis of this kind of related witnesses evidence has to be examined with serious circumspection and caution. However, in a case where the evidence clearly is suggestive of a large number of persons being falsely implicated, the conviction of one man only in such cases on the basis of this kind of related witnesses evidence has to be examined with serious circumspection and caution. Giving due consideration to the above principles, we have examined the evidence of P. W. 1. Raj Narain and P. W. 3, Smt. Umra Devi, who are brother and wife of the deceased. We find that the quality of their evidence is not such that any reliance is to be placed on their testimony as we have already held that their presence is highly doubtful. Even the time of lodging of the F. I. R. is also not beyond reasonable doubt. The medical evidence also does not corroborate them its entirety. It leaves sufficient room for doubt in their testimony. Their presence is also highly doubtful as claimed by them from the circumstances available in the case. In such a situation even the relative witnesss evidence could not be relied upon to confirm an order of conviction. This, in our view, is possibly the law about the appreciation of evidence of relative witnesses. ( 14 ) COMING to the submission about the medical evidence, we are of the opinion that these injuries, especially injury No. 1, which is an entry wound in an area 6" x 5" on the right side face upper part of the side of the head and injury No. 4 are positively caused by two independent shots. So far as the other injuries are concerned, these had been caused on the right side just outside the angle of mouth and were lacerated. This injury cannot be caused by any of the two gun fires. Injury No. 2 may be the result of any pellet that has found its own course separately from injury No. 1. Thus, we are of the opinion that this is also an independent injury and might have been caused by an independent fire. There is no blackening, scorching or tattooing in any of the four fire-arm injuries. All these injuries are entry wounds. This clearly shows that none of these shots were fired by placing the barrel in contact with the skin or scalp. The prosecution has come up with a positive case that only 2 shots were fired. There is no blackening, scorching or tattooing in any of the four fire-arm injuries. All these injuries are entry wounds. This clearly shows that none of these shots were fired by placing the barrel in contact with the skin or scalp. The prosecution has come up with a positive case that only 2 shots were fired. A perusal of the inquest memo shows that the IO had not noted this injury. Thus, he did not notice this injury to be a firearm injury and, therefore, the prosecution insisted upon a case of two shots only which is yet another circumstance that makes the presence of these eye-witnesses highly doubtful. ( 15 ) THERE was no occasion for P. W. 2, Sabhajeet, to identify these miscreants from a good distance in the torch light. He in our opinion was the first person to reach the site of the occurrence on hearing gun shot report and noticed the deceased lying in a pool of blood, dead. He must have communicated the fact to the family members since he knew them. His statement clearly leads us to this inference. He had named these accused persons as assailants on being so told by his family members. this means he did meet them. He is not named in the F. I. R. We are not inclined to accept the evidence of P. W. 1, Raj Narain and P. W. 3, Smt. Umra to be reliable beyond reasonable doubt. P. W. 2, Sabhajit does in no manner help their cause. ( 16 ) IT is also to be noticed that 3 persons were acquitted by the trial Court on the same evidence on the ground that their participation with this appellant is highly improbable in view of their inter se enmity. No reason for their joining with these appellants was provided by these two witnesses. It means their participation in the incident was not accepted by trial Court. They were falsely nominated. This constitutes yet another circumstance to discard their evidence. ( 17 ) IN the result, this appeal is allowed. The appellant is acquitted of the charge under S. 302, I. P. C. He is on bail. He need not surrender. His bail bond is cancelled and surety bonds are hereby discharged. Appeal allowed. .