K. N. SINHA, J. The present appeal has been filed on behalf of Som Nath against the judgment and order dated 1-11- 1980 passed by III Additional Sessions Judge, Kanpur, in S. T. No. 318 of 1978, convicting the appellant Som Nath for the offence under Section 302 Indian Penal Code and sentencing him to undergo life imprisonment. 2. The prosecution story as set forth in the First Information Report and in the statement of complainant is that on 16-6-1977 at about 7. 00 a. m. complainant Pyare Lal, deceased Nain Singh and one Ganesh were taking tea at the shop of one Prem Prakash in Mohalla Jagai Purwa, police station Cantonment, Kanpur. After finishing the tea, the complainant and others were smoking cigarettes. Then appellant Som Nath and one Rikhi (he was acquitted by the Session Judge) appeared on the scene. Rikhi (non- appellant) exhorted, stating that enemy was sitting and be killed. On his exhortation appellant Som Nath fired on deceased Nain Singh, who fell on the ground. The complainant Pyare Lal, Ganesh, Prem, Kunwar Pal Singh and other shopkeepers challenged the appellant, but the appellant and his associates Rikhi ran away brandishing country made pistol. No one tried to chase them out of fear. The complainant and the two wives of deceased Nain Singh and Ganesh brought taxi/auto rickshaw and were taking deceased to K. P. M. Hospital, Kanpur but the railway crossing near Murray Company was closed. The auto had to stop. The deceased died there. The motive of the offence is alleged that Som Nath planned illicit relations with one Sheela and Nain Singh-deceased also developed illicit relations with her. Sheela was more affectionate to Som Nath and it was not liked by deceased Nain Singh. Deceased Nain Singh created hindrance in her visit to the house of Som Nath and with this motive Son Nath appellant committed this offence. 3. The report was lodged at police station Cantt. Kanpur and after the inquest report the body was sent for post-mortem. The case was investigated by Sri Amar Nath Tiwari P. W. 5, who submitted the charge- sheet against the appellant Som Nath and non-appellant Rikhi. 4. The prosecution examined two eye-witnesses, namely, Pyare Lal complainant P. W. 1 and Prem Prakash P. W. 3, the tea-shopkeeper. P. W. 2 was then Head Moharrir of Police Station Cantt. The case was investigated by Sri Amar Nath Tiwari P. W. 5, who submitted the charge- sheet against the appellant Som Nath and non-appellant Rikhi. 4. The prosecution examined two eye-witnesses, namely, Pyare Lal complainant P. W. 1 and Prem Prakash P. W. 3, the tea-shopkeeper. P. W. 2 was then Head Moharrir of Police Station Cantt. Kanpur, who prepared the chik report (Exhibit Ka-2) and made its entry in General Diary. Dr. Satish Chandra P. W. 4 conducted the post-mortem of the deceased and found following one injury: "gun shot wound of entry nearby circular in out line of 3 cm diameter, chest and abdominal cavity deep placed on half of the back 3 cm below the right scapula and 9 cm to the right of the middle line of the back, margins inverted and blackening and scorching present over edges and around the wound. " On internal examination, the doctor found the stomach empty and small intestine and large intestine half full. In the opinion of the doctor, the injury was sufficient in the ordinary course of nature to cause death. 5. Learned III Additional Sessions Judge, after taking into account the facts and statements, passed the judgment and order convicting appellant Som Nath and acquitting non-appellant Rikhi. 6. Aggrieved against the said order of the Additional Sessions Judge, the present second appeal has been filed. 7. We have heard the learned counsel for the appellant and the learned A. G. A. and have perused the record of the case. 8. The motive of the occurrence, as set forth in the First Information Report is that appellant Som Nath had illicit relations with one Sheela Sonkar. Sheela Sonkar had also illicit relations with Nain Singh and Nain Singh resisted the visit of Sheela Sonkar to the house of appellant, hence the appellant committed this offence. Sheela Sonkar has not been shown as witness. The Investigating Officer Amar Nath Tiwari P. W. 5 has stated that he enquired from Sheela Sonkar but she denied any illicit relations, hence he did not deem it proper to cite her as a witness. This motive is belied by the statement of witnesses. Pyare Lal P. W. 1, who is also the informant of the case, told the investigating Officer about the visit of Sheela Sonkar to the house of Som Nath appellant and Nain Singh deceased. This motive is belied by the statement of witnesses. Pyare Lal P. W. 1, who is also the informant of the case, told the investigating Officer about the visit of Sheela Sonkar to the house of Som Nath appellant and Nain Singh deceased. This fact is not mentioned in the statement of Pyare Lal recorded under Section 161 Cr. P. C. The motive, as given, is said to be some enmity of election. 9. Prem Prakash, P. W. 3 told the investigating officer that there was political rivalry between the deceased and the appellant. He has however, denied the whole statement given by him before the investigating officer. He stated before the investigating officer that Shiv Prasad Bharti was contesting election as in independent candidate and he was being helped by appellant and his associate Rikhi. They asked deceased Nain Singh to help Shiv Prasad Bharti but he did not agree, hence the appellant and his associate committed this murder. However, there was one more motive stated by witness Prem Prakash, P. W. 3 before the investigating officer that deceased had taken a loan of Rs. four thousand from the appellant. This fact was stated as motive when the witness was examined by the investigating officer, but it was denied when the witness entered the witness box. Thus considering such divergent statements and non-examination of Sheela Sonkar, the motive as set forth in the First Information Report does not appear to be correct. 10. Learned counsel for the also assailed the First Information Report and submitted that it was ante- timed. According to the chik report (Exhibit Ka-2), the First Information Report was lodged at 7. 55 a. m. The distance of police station was about four KMs. Thus, according to the prosecution case, the First Information Report was lodged within 55 minutes. This promptness of the First Information Report does not appear to be very convincing in view of the time of occurrence and time taken in reaching the police station. According to P. W. 1 Pyare Lal, after the occurrence the two wives of the deceased came on the spot. Then an auto rickshaw was hired and the deceased was being taken to K. P. M. Hospital. When the auto rickshaw reached near the Murray Company, the railway crossing was closed and while auto rickshaw was waiting for the opening of the railway crossing, the deceased died. Then an auto rickshaw was hired and the deceased was being taken to K. P. M. Hospital. When the auto rickshaw reached near the Murray Company, the railway crossing was closed and while auto rickshaw was waiting for the opening of the railway crossing, the deceased died. After the deceased died, the informant prepared the chik report in Gulshan Hotel and brought the dead body to the police station Cantt. Barely 55 minutes were not sufficient for all these activities. Head Constable Sahdev Singh P. W. 2 has stated that special report was sent the same day as per the G. D. but it has been admitted that said special report was received in the office of Circle Officer on 17-6-1977. If the report was prepared by 7. 55 a. m. on 16-6-1977, it could reach the office of Circle Officer the same day, as it was the matter of within City itself. The inquest report prepared does not show the name of assailants. All things considered, the argument has force regarding the report being ante-timed. 11. It would not be out of place to mention here that informant Pyare Lal, Prem Prakash, the shop- keeper, deceased Nain Singh and appellant Som Nath all were associated with each other even in their criminal activities. It is admitted position that Pyare Lal P. W. 1 and deceased used to take tea at the hotel of Prem Prakash. Pyare Lal P. W. 1 has admitted that he was on visiting terms with deceased Nain Singh and they also had movements together for the last 1 1/2 years. Pyare Lal P. W. 1 has also admitted that there was a case of kidnapping of one Shambhu in which deceased Nain Singh, Shop-keeper Prem Prakash P. W. 3 and appellant Som Nath were co-accused. Prem Prakash P. W. 3 has also admitted that he was an accused in a case under Section 302 Indian Penal Code alongwith appellant Som Nath, Madan Singh (brother of deceased Nain Singh), Ganesh and Kunwar Singh. The names of Ganesh and Kunwar Singh find place in the First Information Report as witnesses. Thus, it appears that the informant, witnesses, the deceased and the assailants all were of criminal character and hands in glove with each other. The names of Ganesh and Kunwar Singh find place in the First Information Report as witnesses. Thus, it appears that the informant, witnesses, the deceased and the assailants all were of criminal character and hands in glove with each other. No independent witness of the occurrence has been examined, though the occurrence had alleged taken place in morning on a tea stall on road side. 12. The story as set forth also does not appear to be correct. According to the prosecution case, informant Pyare Lal P. W. 1, deceased Nain Singh and witness Ganesh were taking tea at the shop of Prem Prakash P. W. 3 when the occurrence is said to have taken place. Deceased Nain Singh had two wives, one was married and the other was his concubine. Ganesh was the brother of the concubine of Nain Singh. It is surprising as to how the two wives of the deceased suddenly appeared at the scene of occurrence. Pyare Lal P. W. 1 has stated that he could not say as to how the wives of Nain Singh came on the spot. He neither went to call them nor sent anyone to call them. He has also stated that ladies came on the spot within 6-7 minutes. He also stated that Ganesh also remained at the place of occurrence and did not go to call the wives of Nain Singh. The sudden arrival of auto rickshaw on the spot was also not clarified. The deceased was taken in auto rickshaw. No statement of that auto driver was taken nor auto-rickshaw number was noted down even by the investigating officer. The investigating officer has stated that he neither noted down the number of auto rickshaw nor enquired the name of driver of auto rickshaw. He also did not inspect the auto which was smeared with blood of the deceased. 13. The alleged two witnesses of fact, Pyare Lal P. W. 1 and Prem Prakash P. W. 3 had no chance to see the occurrence. In his connection, it would be necessary to peruse the statement and the deposition of the informant. He also did not inspect the auto which was smeared with blood of the deceased. 13. The alleged two witnesses of fact, Pyare Lal P. W. 1 and Prem Prakash P. W. 3 had no chance to see the occurrence. In his connection, it would be necessary to peruse the statement and the deposition of the informant. P. W. 3 Prem Prakash has stated that investigating officer came on the spot at about 12 O Clock in the noon and he had shown all the relevant places as to where this witness was standing, wherefrom the appellant Som Nath had fired and where the deceased was sitting. No such place has been shown in the site plan. The investigating officer was cross- examined on this point but he casually replied that he did not consider it necessary to show the places wherefrom Prem Prakash saw the offence or wherefrom the appellant fired or the place where the deceased was sitting. He has very carelessly handled the investigation on this point. 14. Now coming to the position of the spot, as per the site plan and statements of witnesses, there is Chakeri road running from east to west. Towards north of this road, the shops of Prem Prakash and Raju Tailor have been shown. There is a lane towards the east of Raju Tailor and another lane towards west of the shop of Prem Prakash. According to the prosecution case, the appellant came from this lane existing towards east of Raju Tailor and fired. Pyare Lal has stated that there is a 5 ft. lane towards the west of the hotel of Prem Prakash. The shop of Pyare Lal is under the Neem tree. Thus the shop of this witness is towards the west of the shop of Prem Prakash. The assailants came from the eastern side through the lane existing towards the east of Raju Tailor and fired on the deceased from behind. It has also come in the evidence that deceased and complainant were sitting with their faces towards the shop of complainant, which is in the west. The hotel facts towards the south. Thus, Pyare Lal was sitting facing to the west and Prem Prakash P. W. 3 was in the shop facing south, when the shot had been fired from behind. The hotel facts towards the south. Thus, Pyare Lal was sitting facing to the west and Prem Prakash P. W. 3 was in the shop facing south, when the shot had been fired from behind. Then Pyare Lal could not see the assailants who came from east and fired because there was the back of deceased and this witness. Prem Prakash has stated that he saw appellant Som Nath only when he fired and not earlier. Thus, there was hardly any chance for the witness to see the assailants. According to the prosecution, the assailants came from east and after firing returned to the eastern lane. 15. Coming to the post mortem report, the learned counsel for the appellant argued that in case the deceased was shot dead immediately after finishing a cup of tea, some milk content must have been found in the stomach. The doctor has stated that he did not specifically ascertain about the presence of milk content. This would have been an important factor to corroborate the prosecution story. According to the post-mortem report, the stomach was empty but the small intestine and large intestine each were half full. This position could be there only when the food was taken 5-6 hours before the occurrence. It also gives a jerk to the prosecution story of the occurrence having taken place at 7. 00 a. m. in the manner as alleged. 16. Thus, considering the evidence on record and submission of the learned counsel for the parties, we are of the opinion that the prosecution has failed to prove the charge against the appellant. As a result thereof, we allow this appeal and set aside the impugned judgment and order and acquit the appellant of the charge against him. The appellant is on bail. The bail bonds stand cancelled and the sureties are discharged. Judgment be certified to the lower Court. Appeal allowed. .