U. S. TRIPATHI, J. This appeal has been directed against the judgment and order dated 15-6-1981 passed by IV Addl. Sessions Judge, Badaun in Session Trial No. 41 of 1980, convicting appellant Ahjad and his real brother Tahir under Section 302 read with Section 34 I. P. C. and 307 read with Section 34 I. P. C. and sentencing each of them to undergo imprisonment for life under Section 302/34 I. P. C. and R. I. for a period of seven years under Section 307/34 I. P. C. Both the sentences were ordered to run concurrently. 2. The prosecution story briefly stated was as under: 3. In the year 1979 Babu Ram Panchal (PW 1) had taken contract for construction of dam and culvert near river Ganga Mahawa in district Badaun, Chiraunji Lal (PW 9) was working as Munshi (Clerk) of Babu Ram Panchal. Appellants Ahjad and Tahir were working as labourer in the construction of dam and culvert. Two days before the occurrence of this case some altercation had taken place between appellants and Chiraunji Lal (PW 9) regarding payment of wages to the appellants and the appellants had threatened to see the contractor Babu Ram. Contractor Babu Ram, his Munshi Chiraunji Lal, Mahendra Singh deceased (labourer) and Phool Singh (PW 8) a mason were staying at Hardutta Pur Rest House. Het Ram was Chaukidar of said Rest House. 4. On the night of 21/22-6-1979 Chiraunji Lal (PW 9) was sleeping in the Varandah of the Rest House alongwith Mahendra deceased on a Charpai. Phool Singh (PW 8) was also sleeping in the said Varandah another Charpai alongwith Girvar (PW 2), the uncle of Het Ram Chaukidar. Babu Ram Panchal (PW 1) was not present in the said Rest House on the said night. A lighted lantern was hanging in the Varandah. At about 12. 00-12. 30 in the night the appellants came near Charpai of Chiraunji Lal (PW 9) and fired two shots. One shot hit on the back side of chest of Chiraunji Lal (PW 9) and the other shot hit on Mahendra deceased. Chiraunji Lal (PW 9) saw the appellants standing in front of his Charpai. After firing, the dacoits ran away towards north. Mahendra died on the spot. Hearing the sound of fire, Girvar (PW 2) and Phool Singh (PW 8) awoke and thereafter several persons of the village also came to the spot. 5. Chiraunji Lal (PW 9) saw the appellants standing in front of his Charpai. After firing, the dacoits ran away towards north. Mahendra died on the spot. Hearing the sound of fire, Girvar (PW 2) and Phool Singh (PW 8) awoke and thereafter several persons of the village also came to the spot. 5. Chiraunji Lal (PW 1) sent information of the occurrence to contractor Babu Ram (PW 1) who came to the spot and on the dictation of Chiraunji Lal (PW 9) prepared report Ext. Ka-1 of the occurrence. Taking the report Chiraunji Lal (PW 1) came to the police station Sahaswan and lodged the report at 5. 45 a. m. Chick F. I. R. Ext. Ka-4 was prepared by Head Constable Indra Pal Sharma (PW 6), who made an endorsement of the same at G. D. report Ext. Ka-5 and registered a case under Sections 302 and 307 I. P. C. against the appellants. Injured Chiraunji Lal (PW 9) was sent to Primary Health Centre Sahaswan for medical examination, where he was medically examined by Dr. R. C. Arya (PW 4) who found following injuries on his person : 6. Fire arm wound of entry 0. 75 cm x 0. 5 cm x muscle deep on right and outer side of chest (back side) 20 cm below the right shoulder; oval in shape with collar of abrasion. Margins were lacerated and inverted. No tattooing and scorching present. 7. The injury was kept under observation and advised X-ray of chest. The injury was caused by some fire- arm from a distance of more than 12 feet and was fresh. 8. The investigation of the case was taken up by Sri Mahendra Kumar Kaushik (PW 11 ). He came to Primary Health Centre Sahaswan, where he interrogated Chiraunji Lal (PW 9 ). Thereafter, he came to spot and got conducted inquest of the dead body of Mahendra deceased through Mahendra Pal Singh (PW 10) and dead body was sent for post-mortem. The I. O. then interrogated Babu Ram Panchal (PW 1), Girvar (PW 2) and Phool Singh (PW 8 ). The I. O. inspected the place of occurrence and prepared site plan. 9. The autopsy on the dead body of deceased Mahendra was conducted on 22-6-1979 by Dr. The I. O. then interrogated Babu Ram Panchal (PW 1), Girvar (PW 2) and Phool Singh (PW 8 ). The I. O. inspected the place of occurrence and prepared site plan. 9. The autopsy on the dead body of deceased Mahendra was conducted on 22-6-1979 by Dr. M. V. Jwal (PW 5), who found following ante mortem injuries on his person: (1) Two gun shot wounds of entrance 1 cm x 1 cm x brain matter deep on the right temporal region of head. These wounds were nearly round in shape and margins inverted. No blackening and charring present. The wound were of 2 cm apart. (2) Two gun shot wounds of entrance 1 cm x 1 cm x scalp on the mastoid region of head behind upper half of right ear. Margins inverted. No blackening & charring present. No shot left & detected under the wounds. Wound nearly round in shape. (3) One gun shot wound of entrance 1 cm x 1 cm x scalp on parietal region of head right side. Margins inverted. No blackening and charring present. No shot felt or detected. Wound nearly round in shape. (4) One gun shot wound of entrance 1 cm x 1 cm x skin on the right side face 2 cm in front of tragus of right ear. Margins inverted. No blackening & charring present. (5) One gun shot wound of exit 13 1/4 cm x 1-3/4 cm x skin with margins everted on right face 3 cm in front below injury No. 4. The injury Nos. 4 and 5 were communicating. No blackening & charring present. (6) One gun shot wound of entrance 1 cm x 1 cm x muscle on the right side neck just below the lower border of lower jaw. No blackening & charring present. One shot removed from muscle & near right side. (7) Abrasion 2. 5 cm x 1 cm on front chest near right side 1 cm below right clavicle mandible. (8) Abrasion 2. 5 cm x 1. 25 cm on the back & outer aspect of right hand. 10. The internal examination showed that temporal bone was fractured in multiple pieces under injury No. 1. Membranes lacerated under injury No. 1. Brain matter badly lacerated. 2 big shots recovered from brain matter. Stomach contained 4 once of semi digested solid food. 5 cm x 1. 25 cm on the back & outer aspect of right hand. 10. The internal examination showed that temporal bone was fractured in multiple pieces under injury No. 1. Membranes lacerated under injury No. 1. Brain matter badly lacerated. 2 big shots recovered from brain matter. Stomach contained 4 once of semi digested solid food. The cause of death was coma as a result of gun shot injuries to brain. 11. The I. O. completed remaining investigation and submitted charge sheet against the appellants. 12. Cognizance of the case was taken by the Magistrate who committed the case to the Court of Sessions. 13. Both the appellants were charged with the offences punishable under Section 302/34 I. P. C. and 307/34 I. P. C. The appellants pleaded not guilty and contended that Ved Ram Sadhoo of Het Ram Chaukidar has committed dacoity in the house of Nizakat Ali, their cousin brother and he was convicted in the said case. Therefore, they were falsely implicated on the instigation of Het Ram Chaukidar. The prosecution to prove its case examined Babu Ram Panchal (PW 1), Girvar (PW 2), Munshi (PW 3), Dr. R. C. Arya (PW 4), Dr. M. V. Jwal (PW 5), Head Constable Indra Pal Singh Sharma (PW 6), Constable Sahab Singh (PW 7), Phool Singh (PW 8), Chiraunji Lal (PW 9), Sub-Inspector Mahendra Pal Singh (PW 10) and Sub-Inspector Mahendra Kumar Kaushik, I. O. (PW 11 ). The appellants examined Nizakat Khan (DW 1 ). 14. Learned Sessions Judge on considering the evidence of the prosecution held that the prosecution successfully proved the guilt of the appellants for the offences punishable under Sections 302/34 and 307/34 I. P. C. With these findings he convicted and sentenced them as mentioned above. 15. Aggrieved with their above conviction and sentence the appellants have come up in this appeal. 16. We have heard Sri B. K. Solanki, learned counsel for the appellants and learned AGA for the respondents and perused the entire evidence on record. 17. The appellants have not disputed the death and cause of death of deceased Mahendra and injury on the person of Chiraunji Lal (PW 9 ). The evidence of Dr. M. V. Jwal (PW 5) and Dr. 17. The appellants have not disputed the death and cause of death of deceased Mahendra and injury on the person of Chiraunji Lal (PW 9 ). The evidence of Dr. M. V. Jwal (PW 5) and Dr. R. C. Arya (PW 4) mentioned above have not been challenged and above medical evidence established that Mahendra deceased died on account of gun shot injuries and Chiraunji Lal (PW 9) also sustained gun shot injury. 18. The date, time and place of occurrence have also not been disputed and the evidence of Chiraunji Lal (PW 9) as well as Mahendra Kumar Kaushik, I. O. (PW 11) established the date, time and place of the occurrence. 19. In this case the motive alleged by the prosecution was that some altercation had taken place between the appellants and Chiraunji Lal (PW 9) regarding payment of wages and the appellants had threatened contractor Babu Ram Panchal (PW 1 ). No motive has been alleged regarding murder of Mahendra deceased. 20. Learned counsel for the appellants contended that there is sole testimony of Chiraunji Lal (PW 9) as the other eye witnesses Girvar (PW 2) and Phool Singh (PW 8) have not supported the prosecution story and were declared hostile. That sole testimony of Chiraunji Lal (PW 9) is not worth reliable as the shot was fired while he was sleeping and his testimony was in contradiction with the medical evidence and, therefore, he was not reliable witness and that there was no reason for the appellants to commit murder of Mahendra deceased with whom they had no concern. 21. Babu Ram Panchal (PW 1) was admittedly not present at the spot in the night of occurrence and he had gone to village Sukari where he got information regarding the occurrence. Therefore, he had not seen the occurrence. Girvar (PW 2) though stated that on the night of occurrence he was sleeping in the Varandah of Rest House and awoke on hearing the sound of fire, but had not seen the assailants as his eye sight was weak. Phool Singh (PW 8) had also stated that on the night of occurrence he was sleeping alongwith Girvar (PW 2) in the Varandah of the Rest House. He awoke hearing the sound of fire and saw injuries on Chiraunji Lal (PW 9) and Mahendra deceased. He also saw two persons running but could not recognize them. Phool Singh (PW 8) had also stated that on the night of occurrence he was sleeping alongwith Girvar (PW 2) in the Varandah of the Rest House. He awoke hearing the sound of fire and saw injuries on Chiraunji Lal (PW 9) and Mahendra deceased. He also saw two persons running but could not recognize them. The above two witnesses were declared hostile and there is nothing in their cross- examination to help the prosecution. Therefore, their testimony is of no avail. 22. There remains sole testimony of Chiraunji Lal (PW 9) and it is, therefore, to be considered whether his sole testimony is sufficient for conviction of the appellants. 23. In the F. I. R. Ext Ka-1 it is mentioned that on the night of the occurrence Chiraunji Lal alongwith Mahendra deceased was sleeping on one Charpai outside the Varandah of Rest House. The other witnesses Girvar (PW 2) and Phool Singh (PW 8) were also sleeping on another Charpai, besides the Charpai of Chiraunji Lal (PW 9) and the deceased. But in his evidence Chiraunji Lal (PW 9) stated that on the night of occurrence he was sleeping inside the Varandah. In the site plan the Investigating Officer had shown the Charpai of the witness and the deceased at place B which is in the Sahn of the Rest House, outside the Varandah at a distance of five paces from the extreme northern wall of the Varandah. The recovery memo Ext. Ka-13 also indicated that blood stained earth was taken from beneath the Charpai of Mahendra deceased i. e. from place B, outside the Varandah. However, in his cross-examination Chiraunji Lal (PW 9) stated that he sustained injury in Varandah of Hadutt Pur Kothi. Therefore, the witness had himself contradicted the place where he was sleeping in the night of occurrence and where he sustained injuries. It is clear from the evidence of Chiraunji Lal (PW 9) that the gun shot injury was caused on him while he was sleeping. The above evidence of the witness shows that he had shifted the place of occurrence. 24. Chiraunji Lal (PW 1) further stated that while he was sleeping, his head was towards north and legs were towards south and that his face while he was sleeping was towards east. The above evidence of the witness shows that he had shifted the place of occurrence. 24. Chiraunji Lal (PW 1) further stated that while he was sleeping, his head was towards north and legs were towards south and that his face while he was sleeping was towards east. He further stated that the shot was fired on him from his back side i. e. from north and two shots were fired simultaneously. He again stated that the assailants ran away towards north. However, he stated that he awoke the moment the shots were fired and when he saw the assailants for the first time they were at the distance of 6-7 or 8 yards. That the night of occurrence was dark. The witness claimed to have recognized the assailants in the light of lantern which was hanging in Varandah of the Rest House. In the site plan Ext. Ka-17 the place of lantern has been shown with letter a which was in the southern wall of the Varandah. It is admitted to the witness that the lantern was at a distance of 17-18 feet. He further stated that the south western corner of Phulwari (park) was at a distance of 17-18 feet from inner wall of the Varandah and there was tin shed over the Varandah. I. O. Sri Mahendra Kaushik (PW 11) has stated in his cross- examination that the width of Varandah was 4-5 paces and one pace was equal to 1-1/2 feet. That the Charpai of deceased and Chiraunji Lal (PW 9) was at a distance of 4-5 paces from the Varandah. Thus, it is clear from the evidence of above two witnesses that the Charpai of the witness and deceased was at the distance of 17-18 feet from the place of lantern. It is also clear from the evidence of Dr. M. V. Jwal (PW 5) and R. C. Arya (PW 4) that there was no blackening or tattooing on the injuries of deceased and injured. Dr. Arya (PW 4) stated that the injury of injured Chiraunji Lal (PW 1) could have been caused from a distance of 12 feet. The evidence of Dr. Jwal (PW 5) also shows that the injuries on deceased were caused from some distance as there was dispersal of pellets. The evidence of Chiraunji Lal further shows that the assailants fired from a distance of 6-8 feet. The evidence of Dr. Jwal (PW 5) also shows that the injuries on deceased were caused from some distance as there was dispersal of pellets. The evidence of Chiraunji Lal further shows that the assailants fired from a distance of 6-8 feet. In the site plan the I. O. had shown place of firing with letter x which is on the south western corner of the park at the distance of 5-6 paces from the Charpai of injured and the deceased. In any case the assailants fired on the deceased and injured Chiraunji Lal (PW 9) from a distance of about 8-9 feet. From the evidence it is clear that the light of lantern could not reach the place from where the assailants fired on the deceased and injured Chiraunji Lal (PW 9 ). Moreover when Chiraunji Lal (PW 9) saw the assailants for the first time they were walking towards north. This shows that the witness saw the assailants from their back side and in these circumstances he cannot be said have recognized the faces of the assailants. 25. Chiraunji Lal (PW 9) has further admitted in his cross-examination that he had no enmity with the appellants except the altercation regarding payment of wages. That after altercation the appellant had threatened the Thekedar Babu Ram Panchal. This shows that the appellants had no enmity, ill will or grudge with the witness. There is nothing on record to show that the appellants had any sort of enmity with Mahendra deceased. 26. It was contended by the learned AGA that the appellants had threatened Babu Ram Panchal (PW 1) Thekedar and Babu Ram also used to sleep in the Rest House and it was just a chance that he was not present in the Rest House on the night of occurrence but the appellants under the impression that Babu Ram Panchal was also sleeping near the Varandah of Rest House fired knowing that they were firing on him and therefore, their act is covered by provisions of Section 303 I. P. C. as they had intention to commit murder of Babu Ram Panchal but the shot hit Mahendra deceased and Chiraunji Lal (PW 9 ). Assuming for the sake of argument that the intention of appellants was to murder Babu Ram Panchal the evidence of sole witness Chiraunji Lal (PW 9) shows that he was not in a position to recognize the assailants. 27. From the above evidence on record we find that Chiraunji Lal (PW 9) is wholly unreliable witness. 28. Learned counsel for the appellants further contended that the medical evidence is in contradiction with the oral testimony as according to FIR version and evidence of Chiraunji Lal (PW 9) only two shots were fired out of which one hit the deceased and other to the injured, but the Medical Evidence of Dr. Jwal (PW 4) shows that the deceased Mahendra had sustained as many as eight gun shot injuries. But Dr. Jwal has admitted in his cross- examination that the injuries of deceased on head and chest were at the distance of one feet and it was possible that all the injuries could have been caused by one shot, because there was dispersal of pellets in a radius of one feet. Therefore, the possibility that all the injuries of the deceased were caused by single shot cannot be easily ruled out and there appears no contradiction in the oral and medical evidence. 29. As mentioned above, the sole witness Chiraunji Lal (PW 9) is wholly unreliable witness and he was not in a position to recognize the assailants. It is clear from evidence on record that the report of the occurrence was lodged after arrival of Babu Ram Panchal (PW 1) Thekedar and he was scribe of the report. Therefore, there was every possibility that since the assailants could not be recognized the name of appellants was mentioned in the F. I. R. on the instigation of Babu Ram Panchal whom the appellants had threatened two days before the occurrence. 30. Since the sole witness Chiraunji Lal (PW 9) is wholly unreliable, therefore, his evidence is not worthy of credence and there is no other evidence to prove the guilt of the appellants. Therefore, the conviction and sentence of appellants cannot be sustained. 31. The appeal thus succeeds. 32. We accordingly allow the appeal and set aside the conviction and sentence of appellants and acquit them of the offences under Section 302/34 and 307/34 I. P. C. They are on bail. Their bail bonds are cancelled and sureties are discharged. Therefore, the conviction and sentence of appellants cannot be sustained. 31. The appeal thus succeeds. 32. We accordingly allow the appeal and set aside the conviction and sentence of appellants and acquit them of the offences under Section 302/34 and 307/34 I. P. C. They are on bail. Their bail bonds are cancelled and sureties are discharged. They need not surrender. Appeal allowed. .