ONKARESHWAR BHATT, J. Appellant, Surya Nath, filed this appeal against the order of his conviction and sentence recorded by the then Ist Addl. Sessions Judge, Azamgarh on 22-5-1980 in Sessions Trial No. 184 of 1979. The appellant has been convicted under Sections 302 and 324 IPC and has been sentenced to imprisonment for life and to one year rigorous imprisonment respectively. 2. Sri J. S. Sengar, learned Counsel for the appellant and learned A. G. A. for the State have been heard. 3. According to the prosecution case on 10-2-1979 at about 7 p. m. P. W. 1 Munaki was giving fodder to her buffalo near her house in village Daudpur police station Jeeanpur District Azamgarh her husband, Rampati, deceased of this case, was present at that place. A lantern was burning at her door. At that time appellant armed with gun alongwith Komal and Ram Sewak armed with lathis, the two co-accused, who have been acquitted, came in the pathway. It has come in evidence that there is a pathway khor about 80 paces running south to north infront of the house of the deceased and going upto the house of Dastgeer. All the three chased Rampati, who ran towards north in the pathway. When he reached near the house of Dastgeer, where electric bulb was burning, he was shot at. The deceased as well as Najir, who was infront of this house, sustained fire arm injuries. The accused thereafter ran away. 4. Rampati was taken to the police station Jeeanpur. Report of Rampati was scribed by P. W. 6 Vijai Mani Tripathi. P. W. 8 Yad Narain Singh, prepared chick report at 8. 45 p. m. and registered the case in the G. D. under Section 307 IPC Sub-Inspector, Phakhare Alam, P. W. 8, interrogated Rampati and recorded his statement under Section 161 Cr. P. C. Thereafter through constable P. W. 12 Dhruwa Deo Singh, the deceased and other injured were sent to district hospital. At 11. 25 p. m. Dr. R. R. Rai, P. W. 11, examined the injuries of the deceased. P. C. Thereafter through constable P. W. 12 Dhruwa Deo Singh, the deceased and other injured were sent to district hospital. At 11. 25 p. m. Dr. R. R. Rai, P. W. 11, examined the injuries of the deceased. Following injuries were found by the doctor: (i) One gun shot wound of entry about 70 in number, 3/10 cm x 3/10 cm each in an area of 30 cm x 24 cm on right side back in middle lower part on right side of abdomen and also on right mid axillary line and posterior and anterior axillary line. (ii) Abrasion 2. 5 cm x 2. 5 cm on right side back upper part in posterior axillary line. 5. The doctor found surgical emphysema present on the back side. 6. Dr. Rai also examined Nazir at 11. 35 p. m. and found one gunshot wound of entry 3/10 cm x 3/10 cm on medial aspect of left leg lower part. 7. Rampati died in the district hospital at 12. 10 a. m. on 11-2-1979. After receiving the information of death of the deceased the case was converted under Section 302 I. P. C. 8. Inquest of dead body was made by Sub-Inspector Ram Lochan Ram P. W. 14. Dr. K. C. Chakravorty P. W. 9 conducted autopsy of the dead body of the deceased on 11-2-1979 at 3 p. m. The doctor found following injuries: (1) Lacerated punctured wound almost circular 3/10 x 3/10 cm, 94 in number muscle deep in an area of 36 cm x 24 cm involving the back right side 15 cm below the lower end of right scapula upto right buttock and extending infront of the right side of abdomen. No blackening or tattooing was found around the injury. These injuries were of entry and on opening six metalic shots were found. 8 metalic shots were found in the stomach. (2) Abrasion 1 cm x 1 cm on the mid axillary line 17 cm below the axila. 9. On internal examination peritoneum of stomach was perforated. In small intestine multiple perforated wound was found. Blood clot in abdominal cavity was also found. In liver multiple perforated wound was found. 10. The appellants has pleaded not guilty and claimed to have been falsely implicated on account of enmity. 11. 9. On internal examination peritoneum of stomach was perforated. In small intestine multiple perforated wound was found. Blood clot in abdominal cavity was also found. In liver multiple perforated wound was found. 10. The appellants has pleaded not guilty and claimed to have been falsely implicated on account of enmity. 11. According to the prosecution case it was deceased, Rampati, who got written report scribed by Vijay Mani Tripathi, P. W. 6. 12. Vijay Mani Tripathi has stated that he scribed the report in the compound of the police station beneath a Pipal tree. He has stated that on the asking of Tilku Yadav he prepared the report and that he did not know Rampati. He has stated that endorsement. t. I. Rampati is written by him. He has stated that Rampati was lying on a cot nearby when Tilku was getting the report prepared. The witness has stated that Rampati was unconscious at that time. He has further stated that when he tried Rampati to speak, Rampati could not speak. The witness has denied the suggestion that report was got prepared in consultation with the police. 13. P. W. 8 Hridai Narain Singh, Head Moharrir, has stated that the deceased came inside the police station on an Ekka and he himself handed over the report in the office. He has stated that the deceased came near him walking on foot. He has stated that for about 1/2 hour the deceased remained at the police station. 14. The report is alleged to have been received on 10-2-1979 at 8. 45 p. m. Dr. R. R. Rai, P. W. 11, who examined the injuries of the deceased on 10-2-1979 at 11. 25 p. m. has stated that the deceased was in very serious condition and he was semi-conscious. Dr. K. C. Chakravorty, P. W. 9 has stated that vital organs were affected by the injuries caused to the deceased and the injuries must have bled profusely. He has stated that after 1-3/4 hour of sustaining the injuries it was not possible for the deceased to walk on foot. Sub-Inspector, Phakhare Alam, the Investigating Officer, has stated that he took the statement of the deceased at 9. 30 p. m. and concluded it at 10 p. m. He has further stated that vide G. D. Entry No. 34, Ex. C1, his departure to Daudpur is noted at 9. Sub-Inspector, Phakhare Alam, the Investigating Officer, has stated that he took the statement of the deceased at 9. 30 p. m. and concluded it at 10 p. m. He has further stated that vide G. D. Entry No. 34, Ex. C1, his departure to Daudpur is noted at 9. 30 p. m. P. W. 12, Dhruwa Deo Singh carried the deceased and the injured Nazir from the police station to district hospital. He has stated that his departure from the police station took place at 8. 45 p. m. and that he reached the hospital at 11. 25 p. m. He has stated that when the deceased was handed over to him the deceased was speaking and was also speaking at the time of his medical examination by the doctor. As mentioned above, Dr. R. R. Rai found the deceased in very serious condition and in a semi conscious state. If the deceased was taken by Dhruwa Deo Singh at 8. 45 p. m. from the police station to the district hospital the claim of Phakhare Alam, Investigating Officer, that he recorded statement of the deceased in between 9. 30 p. m. to 10 p. m. is falsified. Moreover, according to his own saying Phakhare Alam left for village Daudpur at 9. 30 p. m. In that situation also his claim of interrogating the deceased in between 9. 30 and 10 p. m. becomes doubtful. The aforesaid facts and circumstances cast serious doubt on the genuineness of the FIR as well as the statement of the deceased recorded under Section 161 Cr. P. C. which the prosecution wants to rely as dying declaration of Rampati. 15. According to the prosecution case. Nazir also sustained injuries during the incident. The case of the prosecution is that it was single fire due to which fatal injuries were caused to the deceased and simple injury was caused to Najir. For the reasons best known to the prosecution, Nazir has not been examined by the prosecution. 16. P. W. 1 Munaki is the widow of the deceased. She has not seen the actual incident. She has stated about chase given by the appellant and his two associates when the deceased ran in the pathway towards north side. P. W. 2 Gulam Nabi alias Banshi and Intezar Ahmad, P. W. 3, have been examined by the prosecution, who claim themselves to be eye witness. 17. She has not seen the actual incident. She has stated about chase given by the appellant and his two associates when the deceased ran in the pathway towards north side. P. W. 2 Gulam Nabi alias Banshi and Intezar Ahmad, P. W. 3, have been examined by the prosecution, who claim themselves to be eye witness. 17. The occurrence is alleged to have taken place at 7 p. m. on 10-2 1979. P. W. 1, Munaki widow of the deceased Rampati has stated that the sun had set and it had become dark. She has stated that a lantern was burning at the door of her house. It has also come in evidence that there was moon light. Third source of light is stated to be of an electric bulb, which as fixed in the verandah of Dastgeer. P. W. 2, Gulam Nabi alias Bansi, has stated that the said electric bulb was emitting light in the pathway on either side for about 40 to 50 paces. 18. According to P. W. 1, Munaki, she was putting fodder in the Nad. According to her the Nad was at a distance of 18 paces from the main door of her house. She has stated that her husband, the deceased, was present at that place. Again she has stated that her husband was standing 2 to 4 paces towards west of the pathway. She saw that the accused persons were standing on the pathway. If it is correct that she and her husband were standing at the Nad about 18 paces away from the main door the light of lantern, alleged to be burning at the main door of her house, would not be sufficient for accognizing the assailants. That apart, the fact that lantern was burning was not disclosed by her to Investigating Officer in her statement under Section 161 Cr. P. C. If the other statement of the witnesses is taken note of that her husband was standing on the pathway on the western side and the assailants were also standing on the pathway there was nothing to prevent the assailants to fire at the deceased at that very place. The assailants could also have fired at the cow-shed where the witness Munaki and her husband, the deceased, were all alone P. W. 1 Munaki, has not seen the actual incident but only heard the firing of gun once. The assailants could also have fired at the cow-shed where the witness Munaki and her husband, the deceased, were all alone P. W. 1 Munaki, has not seen the actual incident but only heard the firing of gun once. After the firing she went in the pathway and found that her husband was lying fallen at the door of Gulam Nabi alias Bansi, P. W. 2, which is shown by letter c in the site plan. 19. The pathway is about 80 paces running from the south to north. The house of P. W. 2, Gulam Nabi alias Bansi, is the second house towards south from the house of Dastgeer. In between their houses is the house of Gulam Rasool. All the three are brothers. According to the prosecution an electric bulb was emitting light from the verandah of Dastgeer. The prosecution case is that when the deceased took a turn towards east from the house of Dastgeer he was shot at P. W. 2, Gulam Nabi, has stated that the deceased fell down at that very place. This fact stands contradicted by the statement of Munaki, P. W. 1, who has stated that the deceased has fallen near the house of Gulam Nabi. According to Gulam Nabi PW 2, Nazir also received one or two pellet injury. However, he cannot say where Nazir was at that time. According to Gulam Nabi, the firing took place from a distance of 25 paces from his house in the pathway. According to the witness the deceased was about 7-8 paces ahead from his house on turning and he was towards south-east. He has further stated that Nazir, the injured, was 15 paces ahead of the assailants in the pathway in the north-west. He has again stated that when firing on the deceased took place the injured Nazir was 12 or 15 paces south of the deceased and somewhat towards western side. He has stated that injured Nazir was at the door of his house. The injury on the deceased is on right side back in middle, lower part of right side abdomen and also on right mid axillary line. The other injury is on the right side back upper part. The injury of Nazir is on medial aspect of left leg lower part. The injury on the deceased is on right side back in middle, lower part of right side abdomen and also on right mid axillary line. The other injury is on the right side back upper part. The injury of Nazir is on medial aspect of left leg lower part. Considering the position of the deceased and the injured as has come in evidence and also considering the seat of injury sustained by both it is difficult to reconcile that both of them sustained injuries in a single fire. The injury of the deceased is on right side back and lower part of right abdomen while the injury of Nazir is on left leg lower part. The injury of the deceased shows that the barrel of the gun was upward and in that position it is improbable that Nazir would have sustained injury on the left leg lower part. 20. It has come in the statement of Gulam Nabi, P. W. 2, that blood had not fallen at the place where the deceased had fallen. According to the witness the deceased had fallen at the turn of the path way, which is towards north of his house. He has stated that blood had fallen at the place where Nazir had sustained injury. In the site plan c is the place where Nazir sustained injury and from that very place blood was found. P. W. 10, Phakhare Alam, the Investigating Officer, has stated that blood had fallen within area of 1 ft. and from that very place he had collected blood stained and plain earth. The recovery of blood and tikli from the place where Nazir is alleged to have sustained injury is at some distance from the house of Dastgeer. According to the site plan the deceased sustained injury at place b while Nazir sustained injury at place c. The distance in between the two is noted as 17 paces. Munaki, P. W. 1 has definitely stated that her husband had fallen in front of the door of Gulam Nabi, P. W. 2. It appears that at the door of Gulam Nabi there was not sufficient light and the prosecution in order to make the availability of the electric light has put up a case that the deceased ran and was hit on the northern side near the verandah of Dastgeer. It appears that at the door of Gulam Nabi there was not sufficient light and the prosecution in order to make the availability of the electric light has put up a case that the deceased ran and was hit on the northern side near the verandah of Dastgeer. The statement of Munaki, P. W. 1 that her husband had fallen in front of the house of Gulam Nabi is not reconcilable with the statement of Gulam Nabi that deceased had fallen at 7 or 8 paces towards south east of his house. The recovery of blood at place c is also suggestive that the deceased had fallen at place c and not at place b. 21. P. W. 3, Intzar Ahmad is other eye-witness. The trial Court has not placed any reliance on his evidence, since the Investigating Officer has recorded his statement after more than a month. That apart he has stated that the assailants did not come face to face with him. According to his evidence he could only see the back of the assailants. 22. It has come in the statement of Munaki P. W. 1 that the appellant has kept her mother-in-law and no effort was made by her for the search of her mother-in-law. The testimony of Munaki, P. W. 1 and Gulam Nabi, P. W. 2 does not inspire implicit confidence and they cannot be termed to be wholly reliable witness. 23. In view of the aforesaid discussion we are of the view that the prosecution has not established its case beyond reasonable doubt against the appellant and he is entitled to get benefit of doubt and acquittal. 24. In the result the appeal is allowed. The conviction and sentence of the appellant is set aside. He is on bail. He need not surrender. His bail bonds are cancelled and sureties are discharged. CORRECTION ORDEr (Dated 23-8-03) We have perused the application filed on behalf of the applicant by his Counsel Shri Sikander B. Kochar on 1-8-2003. An affidavit has also been filed in support of this application by one Ram Chand Vishwakarma. From this application it transpires that while preferring the Special Leave Petition in the Apex Court this appellant had surrendered before the Chief Judicial Magistrate, Azamgarh on 25-9-2001 and was in jail since then. This fact was not brought to our notice initially when we had heard the appeal. From this application it transpires that while preferring the Special Leave Petition in the Apex Court this appellant had surrendered before the Chief Judicial Magistrate, Azamgarh on 25-9-2001 and was in jail since then. This fact was not brought to our notice initially when we had heard the appeal. Going by our own record we stated in our order while allowing the appeal that the appellant is on bail. He need not surrender. His bail bonds are cancelled and sureties are discharged. This fact was mentioned in the absence of the specific information to us. When we checked the record we found that presence of an affidavit alongwith a application making prayer for bail during the pendency of the appeal lying on the record of this case. The fact of surrender on 25-9-2001 finds mention in paragraph 10 of that application. In view of the facts and circumstances we direct the Chief Judicial Magistrate, Azamgarh to pass necessary orders to release this applicant (appellant) forthwith in pursuance to our order of acquittal dated 28th July, 2003. The fact that he is on bail, he need not surrender, and his bail bonds are cancelled and sureties are discharged, shall not be treated as part of the judgment dated 28th July, 2003 instead it shall be read that he is in jail presently. He shall be released forthwith if not otherwise required in any other case. This correction application is allowed accordingly. Application allowed. .