M. C. JAIN, J. The two appellants as Gaya Prasad and Genda Lal who have challenged the judgment and order dated 24-9-1981 passed by Sri D. P. Gupta, the then 8th Additional Sessions Judge, Etawah in Sessions Trial No. 119 of 1981. Both of them have been convicted under Section 302 IPC read with Section 149 IPC with a sentence of life imprisonment and under Section 307 IPC with a sentence of 5 year rigorous imprisonment. Each of them has further been convicted under Section 148 IPC with a sentence of two years rigorous imprisonment. All the sentences have been ordered to run concurrently. 2. We have heard Sri Amar Saran learned Counsel for the appellants and Sri Shekhar Yadav learned A. G. A. appearing from the side of the State to oppose the appeal. 3. The incident took place in between the night of 1st and 2nd January, 1981 at about 10 p. m. in village Hirapur hamlet of Timarua, Police Station Chaubia District Etawah and the FIR was lodged on 2-1-1981 at 10. 30 a. m. by Ram Shankar P. W. 3, the distant of the police station from the place of occurrence being 14 kms. Genda Lal is the brother-in-law of accused Gaya Prasad and both resided in the village of occurrence where the complainant and the deceased also resided. The houses of both the sides were in close proximity. About a month before this incident, Lala Ram son of the accused Gaya Prasad thrice attempted to commit theft in the house of the deceased Chhail Bihari. A Panchayat was held and the matter was reconciled with the result that no FIR was lodged for those occurrences. About 15 days earlier to the present incident, Lala Ram son of Gaya Prasad was caught with a stolen rickshaw and the deceased Chhail Bihari was a witness against him. Gaya Prasad (father of the Lala Ram) had threatened Chhail Bihari that he would teach him a lesson before the expiry of one month. Out of fear, the deceased used to sleep in the night in the adjoining house of Kamta Prasad. His brother Ram Shankar P. W. 3 was a tube-well operator in Etah District and was in the village owning to leave since 29-12-1980. The house of Kamata Prasad was situated towards east of that of the complainant. The courtyard of the complainant was about 2 ft. His brother Ram Shankar P. W. 3 was a tube-well operator in Etah District and was in the village owning to leave since 29-12-1980. The house of Kamata Prasad was situated towards east of that of the complainant. The courtyard of the complainant was about 2 ft. higher than that of Kamla Prasad. The partition wall between the two houses had fallen down in rainy season. In the courtyard of Kamta Prasad on the northern wall a Chappar was overhanging, under which the deceased was sleeping at the fateful time. After taking their dinner, Smt. Laraiti Devi P. W. 1 (mother of the deceased and Ram Shankar P. W. 3), Chhail Bihari deceased and Ram Shankar petitioner 3 had slept down. Ram Shankar P. W. 3 was also sleeping in the Chhappar aforesaid with Chhail Bihari on the same cot, whereas Smt. Laraiti Devi P. W. 1 was sleeping in the southern portion of her house under a Chhappar. A glowing lantern was hanging at the outer portion of the western corner of the Chhappar of Kamta Prasad. At about 10 p. m. , five persons including the present two appellants entered the house of complaint Ram Shankar P. W. 3 from western side. When they reached the Chhappar Smt. Laraiti Devi P. W. 1 in search of Chhail Bihari, one of them pulled up the quilt of Smt. Laraiti Devi P. W. 1 and said that it was not Chhail Bihari. Smt. Laraiti Devi P. W. 1 questioned as to who they were. She recognised the present two appellants in the light of the lantern but their three companions were unknown to her. Hearing the voice of his mother Smt. Laraiti Devi, Chhail Bihari came out with a lathi and enquired as to what was the matter. As soon as he came out of the Chhappar and was just to enter the Sahan of his house, Gaya Prasad exhorted that he was Chhail Bihari and be killed Genda Lal supported Gaya Prasad loudly consenting the same. Without losing of the companions of the accused-appellants shot fire from his pistol which hit Chhail Bihari in this chest. He fell down saying that Gaya Prasad and Genda Lal got him assaulted. He died instantaneously. Without losing of the companions of the accused-appellants shot fire from his pistol which hit Chhail Bihari in this chest. He fell down saying that Gaya Prasad and Genda Lal got him assaulted. He died instantaneously. Ram Shankar P. W. 3 who had also got up alongwith his deceased brother Chhail Bihari shouted that he was coming for help of his brother, but he was also fired upon three shots by Gaya Prasad, Genda Lal and one of their companions. He, however, escaped unhurt. Hearing the shouts and shots, the neighbours Vijay Bahadur P. W. 2 and Badan Singh rushed up with lathis and torches and saw Gaya Prasad and Genda Lala alongwith three companions running towards southern side with pistols in their hands, offering threats while fleeing. 4. On the lodging of the FIR, a case was registered and investigation followed, which was conducted by Station Officer J. N. Singh P. W. 7. He busied himself with the steps related to investigation. 5. The post-mortem over the dead body of the deceased was conducted by Dr. Arun Prakash P. W. 5 on 3-1-1981 at 3 p. m. The deceased was aged about 35 years and about 1-1/2 day had passed since he died. The following ante-mortem injury was found on his person: "gunshot wound 6 cm. in diameter on right side chest upper part just below clavicle, 9 cm. above and medial to right nipple, edges inverted. Piece of lung coming out. Blackening and scorching present. " 6. The cause of death was shock and haemorrhage due to ante-mortem injury. 7. At the trial, prosecution examined in all seven witnesses. The material ones were Smt. Laraiti Devi P. W. 1, Vijay Bahadur P. W. 2 and Ram Shankar P. W. 3. Indeed, the fate of the appeal would turn largely on the analysis of their testimony and other attending circumstances. 8. The defence of the accused-appellants was of denial and false implication. 9. The gist of the submission of the learned Counsel for the appellants is that admittedly there was enmity and bad blood between the two sides from before and the accused appellants came to be named simply on the basis of suspicion and imagination. 10. We have carefully examined the evidence on all relevant aspects and, in our opinion, the submission from the side of the appellants is not without force. 10. We have carefully examined the evidence on all relevant aspects and, in our opinion, the submission from the side of the appellants is not without force. To begin with, it has to be pointed out that the FIR is delayed one. The incident took place in the night between 1st and 2nd January, 1981 at about 10 p. m. and the report was lodged the following day at 10. 30 a. m. though the distance of the police station was only 14 km. This inordinate delay could not plausibly be explained by the informant Ram Shankar P. W. 3 who has professed himself to be an eye-witness. He is educated to certain extent being a tub-well operator and is not a rustic and illiterate villager. The unexplained delay in the lodging of the FIR assumes great importance in view of the previous background of strained relations of the deceased and his family with the accused-appellants who were their own neighbours. 11. Secondly, it is important to note that the prosecution case is that about 15 days prior to the incident Lala Ram -son of the accused-appellant Gaya Prasad had been caught with a stolen rickshaw and the deceased was a witness against him. Gaya Prasad accused-appellant had allegedly threatened Chhail Bihari of teaching him a lesson before the expiry one month. Chhail Bihari was so much frightened that he used to sleep in the adjoining house of Kamta Prasad. That means to say, he had taken the alleged threat of accused-appellant Gaya Prasad very seriously. Still, the truth of the matter is that no FIR was lodged by him regarding the threat so offered by Gaya Prasad. He also did not take the matter to the Panchayat which, according to the prosecution, had earlier taken place on the incidents of three attempts of theft by Gaya Prasads son Lala Ram at his house. As the Panchayat had reconciled that matters, no FIR was made regarding those attempted thefts as per the prosecution case. With this background, it was at least expected of Chhail Bihari to have taken some steps either through filing to the FIR or by taking the matter of Panchayat regarding the threat offered by Gaya Prasad 15 days before. As the Panchayat had reconciled that matters, no FIR was made regarding those attempted thefts as per the prosecution case. With this background, it was at least expected of Chhail Bihari to have taken some steps either through filing to the FIR or by taking the matter of Panchayat regarding the threat offered by Gaya Prasad 15 days before. The possibility cannot be ruled out that the mind of the informant Ram Shankar P. W. 3 (brother of Chhail Bihari) was bogged with the suspicion that Gaya Prasad and his brother-in-law Genda Lal were the authors of this crime. 12. Thirdly, all the three eye-witnesses are interested persons and inimically disposed against the accused-appellants. Smt. Laraiti Devi P. W. 1 is the mother of the deceased whereas Ram Shankar P. W. 3 is his brother. Vijay Bahadur P. W. 2 is also the cousin of the deceased and Ram Shankar P. W. 3, as has come to be stated by Smt. Laraiti Devi P. W. 1. Not only this, the evidence shows that he too was a witness against Lala Ram (son of Gaya Prasad and nephew of Genda Lal) having been caught with a stolen rickshaw. He is not a witness of the actual present happening but allegedly saw the accused- appellants running away. We are conscious that the incident took place in the night at the house of the complainant where no other independent witness could be expected at that hour of the night, but then there are certain factors which do not inspire confidence in the substratum of the testimony delivered by these witnesses. 13. At the start of the incident, the role assigned to the two appellants is of exhortation. There were allegedly three unknown companions of the accused-appellant. The shot killing Chhail Bihari was allegedly fired by their unknown companions. That means to say the two accused-appellants had brought hired criminals or amateurs to murder Chhail Bihari. It is against the inherent probability of the situation. If they themselves did not want to play the leading role in killing Chhail Bihari, he (target) could be pointed to the hired killers or amateurs otherwise and elsewhere before the incident and they would have done their job. It could be easily possible as the accused-appellants were the own neighbours of Chhail Bihari. If they themselves did not want to play the leading role in killing Chhail Bihari, he (target) could be pointed to the hired killers or amateurs otherwise and elsewhere before the incident and they would have done their job. It could be easily possible as the accused-appellants were the own neighbours of Chhail Bihari. Otherwise also, he could be pointed out to the contract killers or the amateurs somewhere else in the village. There was, therefore, no necessity of the accused-appellants to be there at the spot. They had not muffled up their faces either to conceal their identity. It does not fit in the scheme that they would participate in the incident, playing second fiddle or exhortation only and that, too, without taking steps to conceal their identity. Needless to say, nobody want to create or leave evidence of the commission of a particular crime by him. Though it is also the part of the prosecution story that the two accused-appellants and one of their companions opened shot on Ram Shankar P. W. 3 after the shooting of Chhail Bihari, but he did not receive any injury at all. So, there is no physical corroboration of this part of the story that the two accused-appellants had opened fire on Ram Shankar P. W. 3. 14. Smt. Laraiti Devi P. W. 1 also stated that after the incident, Genda Lal accused had come near the dead-body of Chhail Bihari and that he was arrested prior to the sending of the dead body of Chhail Bihari by the police. As per the record, Genda Lal was arrested on 3-1-1981. If Genda Lal had come near the dead body of Chhail Bihari and was not arrested at that time, it creates doubt about his complicity and is an indicator that for some time after the incident it was not even known as to who were the culprits. If Genda Lal could be implicated falsely, there could be no guarantee about the correct implication of the other accused-appellant Gaya Prasad with whom the prosecution side admittedly had enmity and bad blood from before. 15. Vijay Bahadur P. W. 2 claimed to have identified the accused-appellants in the lane when they were fleeing and he was rushing with torch and lathi towards the house of Ram Shankar P. W. 3 on the shouts emanating therefrom. 15. Vijay Bahadur P. W. 2 claimed to have identified the accused-appellants in the lane when they were fleeing and he was rushing with torch and lathi towards the house of Ram Shankar P. W. 3 on the shouts emanating therefrom. It is doubtful that he could be certain about the accused-appellants when he had only caught a fleeting glimpse in those tense moments. 16. Light was also not seemingly sufficient for Smt. Laraiti Devi PW 1 and Ram Shankar P. W. 3 to recognize the accused-appellants amongst the assailants with certainty. The source of light was said to be a glowing lantern on the outer portion of the western corner of Chhappar of Kamta Prasad in which the deceased Chhail Bihari and Ram Shankar P. W. 3 were sleeping. The glowing lantern was allegedly at the place where Smt. Laraiti Devi P. W. 1 was sleeping. She was sleeping in her own Chhappar. In the site plan it is shown that the glowing lantern was not hanging at point l and Smt. Laraiti Devi P. W. 1 was sleeping in her Chhappar at point b. It is also the prosecution case that in the beginning one of the accused had pulled the quilt of Smt. Laraiti Devi P. W. 1 stating that she was not Chhail Bihari. It indicates that the light of lantern was not reaching upto that place. If her testimony is kept aside, there would only be the evidence of Ram Shankar P. W. 3 who and Chhail Bihari were allegedly sleeping on the same cot. It is not digestible that though the assailants were as many as five in number, but he would have been spared without there being any meaningful resistance at the time of the incident. Virtually, there is no corroboration of the interested and inimical witnesses by independent sources. 17. On holistic consideration, we veer around the conclusion that doubtless it is that an incident took place in which Chhail Bihari was murdered in between the fateful night, but the evidence as to the involvement of the accused-appellants in the incident is not based on firm and clinching evidence. The possibility of their false implication owing to the previous back-ground of strained relations betweent the two sides cannot be overruled. They should, therefore, be afforded the benefit of doubt. 18. The possibility of their false implication owing to the previous back-ground of strained relations betweent the two sides cannot be overruled. They should, therefore, be afforded the benefit of doubt. 18. In view of the above discussion, we allow the appeal and set aside the order of conviction and sentences passed against the appellants Gaya Prasad and Genda Lal. They are acquitted. They are already on bail. 19. A certified copy of this order along with the record of the case be sent to the Court below for incorporating necessary entry in the concerned register under intimation to this Court within two months. Appeal allowed. .