ONKARESHWAR BHATT, J. Three accused appellants were tried and convicted under Sections 302/34, I. P. C. and sentenced to imprisonment for life. The judgment with order was passed in Sessions Trial No. 96 of 1981 by the then V Additional Sessions Judge, Fatehpur on 28-9-1981. 2. Sri P. N. Misra learned Senior Advocate for the appellant and Sri S. K. Pal learned A. G. A. for the State have been heard and the record of the case has been carefully perused. 3. During pendency of the appeal appellant Ram Kishore died and by order dated 30-10-2003 the appeal was ordered to abate so far he was concerned. The appeal survives on behalf of Ashok Kumar and Audhesh Kumar alias Dhunnu. 4. According to the prosecution case deceased Sumer Singh was residing in village Paina Kalan, Police Station Ghazipur, District Fatehpur. The three appellants also resided in the same village. Appellant Ram Kishore (since dead) was highly inimical with one Rajendra Yadav of the village. Deceased Sumer Singh was associated with Rajendra Singh, hence Ram Kishore bore enmity with the deceased. On several occasions, appellant Ram Kishore had challenged the deceased for committing his murder. Appellant Ashok is the son of deceased Ram Kishore. On 9-11-1980 sometimes after the sunset the deceased was talking to Suraj Prasad Teli of his village. In the meantime appellant Ashok who was near the Panchayat house called the deceased by gesture. The deceased reached near the appellant Ashok and both of them proceeded towards Kanal Patri and covered a distance of more than one furlong. Both of them reached the mango grove. Appellant Ram Kishore armed with licensed gun and appellant Dhunnu alias Audhesh who was also having a gun came out from the mango grove. Appellant Ashok had a country made pistol. All the three appellants fired at the deceased thrice or four times. On sustaining injuries the deceased cried and fell down in the field of Desh Raj Singh and died. Informant Puttan Singh, who is uncle of the deceased and Smt. Phool Dulari mother of the deceased who were near the place of occurrence and had gone to ease themselves came to the place of occurrence. Puttan Singh came to his house and got a written report scribed through Mewa Lal. The report was lodged at police station Gazipur on 9-11-1980 at 6. Puttan Singh came to his house and got a written report scribed through Mewa Lal. The report was lodged at police station Gazipur on 9-11-1980 at 6. 30 p. m. The case was investigated by S. I. Jai Karan Singh, P. W. 11 who reached at the place of occurrence on 9-11-1980 itself. However, in the absence of proper light formalities of investigation were taken by him on 10-11-1980 i. e. on the following day of the occurrence. At the place of occurrence the Investigating Officer recovered three empty cartridges and prepared its memo. On 10-11-1980 he arrested appellant Ram Kishore alongwith his gun and six cartridges and prepared a memo in that regard. He also prepared inquest report of the dead body of the deceased and sent the same for post- mortem examination. The post-mortem was done by Dr. S. K. Singh P. W. 9 on 11-11-1980 at 4 p. m. The doctor found following ante mortem injuries on the person of the deceased: (1) Lacerated wound right ear upper part Pinna 1/4" x 1". Through & through Pinna. (2) Lacerated wound at parietal area 1" x 1/2" x scalp deep 2" above right ear. (3) Lacerated wound occipital area 1-1/2" x 1/2" x scalp deep 2" behind injury No. 2 in midline. (4) Gun shot wound of entry on back in midline in interscapular area over thoracic vertebra. 2" x 2" x 3- 1/4". Blackening & tatooing present. Direction posterior to anterior communicating to injury No. 5. (5) Gun shot wound of exit 1 1/2" x 1" x 3-1/4" on left side of neck 1/2" above the left clavicle 3" medial to tip of left shoulder communicating to injury No. 4. (6) Gun shot wound of entry upper part of left shoulder on anterior surface 1" x 1" x bone and chest cavity deep 2" lateral to acromion process of scapula. Blackening and tatooing present underlying humerous bone fractured. Direction above downward obliquely medially from left to right. (7) Abraded contusion 1/2" x 1/4" on front of left side of chest at 1 Oclock position 5" above the left nipple. (8) Abrasion left side of abdomen 2" x 1", 1/2" above the left iliac crest in lumber area. (9) Abrasion over zygomatic process of left side of cheek 1-1/2" x 1/2". (7) Abraded contusion 1/2" x 1/4" on front of left side of chest at 1 Oclock position 5" above the left nipple. (8) Abrasion left side of abdomen 2" x 1", 1/2" above the left iliac crest in lumber area. (9) Abrasion over zygomatic process of left side of cheek 1-1/2" x 1/2". 39 small mettalic pellets and one wadding piece were recovered from the body and were sent in sealed cover to S. P. Fatehpur. 5. According to doctor duration of death was about two days from the time of post-mortem examination. 6. The prosecution examined Puttan Singh P. W. 1, Phool Dulari P. W. 2 and Chhatrapal alias Rajola P. W. 3, Ram Ashre P. W. 4, Ram Sajivan P. W. 5 and Virendra P. W. 6 as eye witnesses. However, all of them excepting Puttan Singh P. W. 1, did not support the prosecution case and turned hostile. P. W. 2 Phool Dulari, mother of the deceased has stated that she had gone to ease and when she was near the Mahuwa grove she heard three shots. She, however, could not see the assailants because it had become dark after the sunset. According to the prosecution case the deceased was talking with the one Suraj Prasad Teli when appellant Ashok had called him and with whom the deceased had proceeded towards canal patri. P. W. 2 Phool Dulari, mother of the deceased, however, does not corroborate this fact. She has stated that stomach of the deceased was upset and for easing he had gone towards canal side and she had also proceeded in that direction for easing. 7. The solitary testimony is of Puttan Singh P. W. 1 (who is uncle of the deceased) for fastening the guilt on the appellants. The testimony of single witness should be found to be wholly reliable. According to prosecution case the deceased was murdered by fire arm. The ante mortem injuries on the body of the deceased show three gun shot wounds, two being wounds of entry and one of exit. Besides gun shot injuries, the deceased had three lacerated wounds, one abraded contusion and two abrasions. Dr. S. K. Singh has stated that injury Nos. 1, 2 and 3 were caused by lathi and danda and firmly stated that they had been caused by blunt object. Besides gun shot injuries, the deceased had three lacerated wounds, one abraded contusion and two abrasions. Dr. S. K. Singh has stated that injury Nos. 1, 2 and 3 were caused by lathi and danda and firmly stated that they had been caused by blunt object. The testimony of Puttan Singh that the deceased was assaulted by fire arms alone does not fit in with the injuries which had been found by the doctor. Thus, there is inconsistency between the ocular testimony of Puttan Singh and the medical evidence. 8. According to Puttan Singh, after written report was prepared by Mewa Lal he carried the same to police station Ghazipur and reached there at about 9 p. m. His statement shows that the Head Constable did not hand over any paper to him during the night. He stated that the Investigating Officer reached at about 11 p. m. in the night alongwith three constables and told the witness that his report would be lodged tomorrow. He also stated that on the following morning the Investigating Officer got the report scribed. He further stated that on the following day the Investigating Officer dictated written report to Mewa Lal at the door of his house. Thus, according to the own showing of Puttan Singh the F. I. R. came into existence long after the occurrence. The statement of Puttan Singh shows that the report was ante timed. In the case of Marudamal Augusti v. State of Kerala, reported in 1980 SCC (Cri) 985, it has been held that once F. I. R. was held to be fabricated or brought into existence long after the occurrence, the entire prosecution case would collapse. On the own admission of Puttan Singh the F. I. R. had been prepared and lodged on the following day of the occurrence and this feature of the case shakes the very foundation of the prosecution case. The F. I. R. did not come into existence at 6. 30 p. m. on 9-11-1980 by which time it purports to have been made. 9. According to the prosecution case the Investigating Officer recovered three empty cartridges from the place of occurrence. S. I. Jai Karan Singh, Investigating Officer has stated that the cartridges were found by him on the partri of the canal. He admitted that the place of recovery of empties has not been shown by him in the site plan. 9. According to the prosecution case the Investigating Officer recovered three empty cartridges from the place of occurrence. S. I. Jai Karan Singh, Investigating Officer has stated that the cartridges were found by him on the partri of the canal. He admitted that the place of recovery of empties has not been shown by him in the site plan. He further admitted that neither in the inspection note nor in the inquest report there is any mention of recovery of empties. S. I. Jai Karan Singh claims to have arrested Ram Kishore on 10-11-1980 at a place which was about two furlongs towards west of the place of occurrence. P. W. 7 Mewa Lal is a witness of the recovery memo of empty cartridges. He, however, does not corroborate the statement of the Investigating Officer that the Investigating Officer had taken empties in his possession from the place of occurrence. He stated that he had signed the memo at the police station. Puttan Singh P. W. 1 has stated that after the Investigating Officer got the written report prepared at the door of his house appellant Ram Kishore and he were taken by the Investigating Officer to the police station. He also stated that Ram Kishore appellant carried his gun to the police station. In this way Puttan Singh P. W. 1 does not corroborate the claim of the Investigating Officer that appellant Ram Kishore was arrested by the Investigating Officer about two furlongs away from the place of occurrence. Jai Karan Singh P. W. 11 has stated that six cartridges which he had recovered at the time of rarest of appellant Ram Kishore and a gun which were sealed separately by him were deposited by him at the police station. He could not say where those six cartridges were. Those cartridges were not on produced before the Court. P. W. 12 B. Rai, Ballistic Expert, stated that one of the three empty cartridges bore similar sign of breech with two cartridges which was used from the gun for experiment. The other two empty cartridges did not bore similarity with the cartridge used by him for experiment. Those cartridges were not on produced before the Court. P. W. 12 B. Rai, Ballistic Expert, stated that one of the three empty cartridges bore similar sign of breech with two cartridges which was used from the gun for experiment. The other two empty cartridges did not bore similarity with the cartridge used by him for experiment. Since the whereabouts of the six cartridges alleged to have been covered from the possession of appellant Ram Kishore are not known and since the recovery of three empty cartridges from the occurrence is not reliable, the fact that one of the empty cartridges bore similar sign of breech cannot be a circumstance against the appellants. It is possible that those six cartridges which were taken into possession by the Investigating Officer at the time of arrest of appellant Ram Kishore were fired from the gun of the accused which was also taken into possession by the Investigating Officer at the time of his arrest and those very empty cartridges were planted to fasten the guilt on the appellants. The investigation regarding recovery of the gun and six cartridges from the possession of the appellant Ram Kishore does not appear to be fair and in natural course of the investigation. 10. Thus, in the totality of the facts and circumstances of the case found above, the conviction of the appellants cannot be sustained. The appeal is liable to succeed. The appeal is allowed. The conviction of appellants Ashok Kumar and Dhunnu alias Audhesh is set aside. They are on bail. They need not surrender. Their bail bonds are cancelled and sureties are discharged. Appeal allowed. .