U. S. TRIPATHI, J. ( 1 ) THIS appeal has been directed against the judgment and order dated 13-11-1981 passed by V Additional Sessions Judge, Etawah in Sessions Trial No. 262 of 1981 convicting the appellants Man Singh, Virendra Bahadur Singh and Surendra Bahadur Sigh under Section 302, IPC and sentencing them to undergo imprisonment for life. ( 2 ) APPELLANTS Virendra Bahadur Singh and Surendra Bahadur Singh are real brothers and residents of village Karwawatu. Appellant Man Singh is resident of village Turikpar. Nazim alias Phakkari deceased, his father Bhajan (P. W. 1) and wife Smt. Tar Chand (P. W. 2) were also residents of village Karwawatu, P. S. Auriaya, district Etawah. Prior to occurrence of this case, cousin brother of appellant Virendra Bahadur Singh was murdered and Nazim deceased was an accused in the said case. However, the above case ended in acquittal. On account of it, there was enmity between the parties. ( 3 ) NAZIM deceased was carrying a cycle repair shop near culvert of Dudhiyakhera canal in village Karwawatu, at a distance of about 2 km. from Kasba Auraiya. On the morning of 6-3-1981 at about 10 a. m. Nazim alias Phakkari deceased was present at his above cycle repair shop. His father Bhajan (P. W. 1) was sitting on the culvert of canal. Smt. Tar Chand (P. W. 2), wife of the deceased had come to the above shop with the meal of the deceased and leaving the meal at the shop she was also sitting near Bhajan (P. W. 1) Appellants Virendra Bahadur Singh and Surendra Bahadur Singh armed with guns, appellants Man Singh armed with country made pistol and one Krishan Narain alias Krishna Gopal alias Chhutkaiya (acquitted by the Trial Court) armed with knife came to the shop of the deceased. Appellant Virendra Bahadur Singh exhorted and on his exhortation all the appellants Virendra Bahadur Singh, Surendra Bahadur Singh and Man Singh fired by their respective weapons on the deceased, due to which he fell down and died. Bhajan (P. W. 1), Smt. Tar Chand (P. W. 2), Sahjad, Umar Farooq and one another person of the village saw the occurrence. ( 4 ) LEAVING the dead body on the spot Bhajan (P. W. 1) came to the police station Auraiya, where he got prepared report (Ext. Ka-1) from the scribe and lodged the report at the police station at 11. ( 4 ) LEAVING the dead body on the spot Bhajan (P. W. 1) came to the police station Auraiya, where he got prepared report (Ext. Ka-1) from the scribe and lodged the report at the police station at 11. 10 a. m. Chik FIR (Ext. Ka-2) was prepared by Head Constable Rajjan Lal Trivedi (P. W. 3), who made an endorsement of the same at G. D. report (Ext. Ka-3) and registered a case against the appellants and Krishna Narain under Section 302, IPC. ( 5 ) THE investigation of the case was taken up by Sri Abdul Salim Khan, Station Officer, P. S. Auraiya (P. W. 4 ). The I. O. interrogated Bhajan (P. W. 1) at the police station and thereafter reached to the spot. He appointed Punchas and conducted inquest of the dead body of deceased and prepared inquest report (Ext. Ka-4) and other relevant papers (Ext. Ka-5 to 9 ). He inspected place of occurrence and prepared site plan (Ext. Ka-10 ). The I. O. took into possession blood stained pair of chappals, blood stained and simple earth and prepared recovery memo (Ext. Ka-11 and Ka-12 ). He also interrogated Smt. Tar Chand (P. W. 2 ). ( 6 ) THE autopsy on the dead body of the deceased was conducted on 7-3-1981 by Dr. Arun Prakash (P. W. 5), who found two gun shot wounds of entry two gun shot wounds of exit and two lacerated wounds on the person of the deceased as ante mortem injuries and cause of death, due to shock and haemorrhage. The doctor prepared post mortem report (Ext. Ka-17 ). ( 7 ) ON 8-3-1981 the I. O. interrogated other witnesses of the FIR and searched the appellants, but they were absconding. He executed processes under Sections 82/83, Cr. P. C. against the appellants. On completion of investigation the I. O. submitted charge-sheet (Ext. Ka-10) against the appellants and Krishna Narain. ( 8 ) COGNIZANCE of the case was taken up by Magistrate, who committed the case to the Court of Session. The appellants and Krishna Narain were tried for the offence punishable under Section 302, IPC and in the alternative for the offence punishable under Section 302/34, IPC to which they pleaded not guilty and contended that they were falsely implicated on account of enmity. The appellants and Krishna Narain were tried for the offence punishable under Section 302, IPC and in the alternative for the offence punishable under Section 302/34, IPC to which they pleaded not guilty and contended that they were falsely implicated on account of enmity. ( 9 ) THE prosecution in support of its case examined Bhajan (P. W. 1), Smt. Tar Chand (P. W. 2) as witnesses of fact besides Head Constable R. L. Trivedi (P. W. 3), Sri Abdul Salim Khan, I. O. (P. W. 4) and Dr. Arun Prakash (P. W. 5) as formal witnesses. ( 10 ) THE learned Sessions Judge, on considering the evidence of the prosecution, held that the prosecution succeeded in proving beyond all reasonable doubt that appellants Virendra Bahadur Singh and Surendra Bahadur Singh armed with guns and Man Singh armed with country made pistol on 6-3-1981 at about 10 a. m. at the Patari by road side near the canal culvert of Dudhiyakhera committed murder of Nazim alias Phakkari. He further held that the prosecution could not establish its case against Krishna Narain. With these findings he convicted and sentenced the appellants as mentioned above, but acquitted Krishna Narain. ( 11 ) THE appellants have challenged their above conviction and sentence in this appeal. ( 12 ) WE have heard Sri Atul Mehra, learned counsel for the appellants and learned A. G. A. for the respondent and have perused the evidence on record. ( 13 ) BHAJAN (P. W. 1) stated that his son Nazim alias Phakkari deceased was running a cycle repair shop near culvert of Dudhiyakhera canal in village Karwawatu. On the date of occurrence at about 10 a. m. he was sitting on the culvert. Smt. Tar Chand wife of the deceased came to the shop of the deceased along with the meals of the deceased. Leaving the pot of meal at the shop she was also sitting near him. The appellants Surendra Bahadur Singh and Virendra Bahadur Singh armed with guns, Man Singh armed with country made pistols and Kishan Narain armed with knife, came to the said shop of the deceased. Appellant Virendra Bahadur Singh exhorted and on his exhortation all the three appellants fired on the deceased, due to which he sustained injuries, fell down and died. The occurrence was witnessed by him, Smt. Tar Chand (P. W. 2), Farooq and one another person. Appellant Virendra Bahadur Singh exhorted and on his exhortation all the three appellants fired on the deceased, due to which he sustained injuries, fell down and died. The occurrence was witnessed by him, Smt. Tar Chand (P. W. 2), Farooq and one another person. Leaving the dead body on the spot, he came to police station Auraiya where he got prepared and lodged the report at the police station. ( 14 ) SMT. Tar Chand (P. W. 2) stated that on the date of occurrence at about 10 a. m. she had gone to the cycle repair shop of her husband Phakkari deceased taking his meals. Her husband was running a cycle repair shop near canal culvert. Appellant Virendra Bahadur Singh, Man Singh and Chhutkai alias Krishna Narain came there, Virendra Bhadur Singh and Surendra Bahadur Singh were having guns. Man Singh was having country made pistol and Chhutakai was having knife. On the exhortation of Chhutakai Man Singh, Surendra Bhadur Singh and Virendra Bahadur Singh fired on her husband, due to which he fell down and died. Her father-in-law, Salim, Shahjad, Farooq were also present there. Leaving her on the spot her father-in-law went to police station. ( 15 ) SRI Rajjan Lal Trivedi (P. W. 3) stated that on 6-3-1981 at about 11. 10 a. m. Bhajan (P. W. 1) came to the police station along with written report (Ext. Ka-1) and submitted the same. On the basis of above report he prepared Chik FIR (Ext. Ka-2) and made endorsement of the same at G. D. report. He also proved the Chik FIR (Ext. Ka-2) and G. D. report (Ext. Ka-3 ). ( 16 ) SRI Abdul Salim Khan, I. O. (P. W. 4) I. O. stated that investigation of the case crime No. 100 of 1981 was handed over to him on 6-3-1981. After copying out F. I. R. and G. D. report in the case diary he interrogated complainant Bhajan at the police station. Thereafter, he came to the spot where dead body of the deceased was lying. He appointed Punchas and prepared inquest report (Ext. Ka-4) and relevant papers, diagram corpse (Ext. Ka-5), Form No. 33 (Ext. Ka-6), Challan Corpse Form No. 13 (Ext. Ka-7), letter to C. M. O. and R. I. (Ext. Ka-8 and Ka-9 ). Thereafter, he came to the spot where dead body of the deceased was lying. He appointed Punchas and prepared inquest report (Ext. Ka-4) and relevant papers, diagram corpse (Ext. Ka-5), Form No. 33 (Ext. Ka-6), Challan Corpse Form No. 13 (Ext. Ka-7), letter to C. M. O. and R. I. (Ext. Ka-8 and Ka-9 ). He sealed the dead body and handed over the same to Constable Vijay Kumar and Madho Singh for escorting the same for post mortem. He inspected the place of occurrence and prepared site plan (Ext. Ka-10 ). He also took into possession blood stained pair of chappals of the deceased, blood stained and simple earth and prepared recovery memo (Ext. Ka-11 and 12 ). Thereafter, he interrogated Smt. Tar Chand (P. W. 2 ). On 8-3-1981 he interrogated under witnesses of the F. I. R. , made search for accused, but they were not available. He executed processes under Setions 82/83 Cr. P. C. against the appellants and on completion of investigation submitted charge sheet on 16-3-1981 against the appellants and Krishna Narain. ( 17 ) DR. Arun Prakash (P. W. 5) stated that on 7-3-1981 he conducted post mortem on the dead body of deceased and found following ante mortem injuries on his person : (1) Lacerated wound 5 cm x 1 cm x scalp deep on top of skull 7 cm from left ear. (2) Lacerated wound 6 cm x 1 cm x scalp deep on top of skull 1-1/2 cm medial to injury No. 1. (3) Gun shot wound 2-1/2 cm x 2 cm x cavity deep on front of right chest 6 cm below right nipple, edges irregular everted. Blood clotted present. Pieces of wadding removed. Wound of exit. (4) Gun Shot wound 2 cm x 1-1/2 cm x cavity deep on left scapular region 6 cm above inferior angle of left scapula, edges irregular inverted. Wound of entry. (5) Gun shot wound of entry in an area 13 cm x 8 cm on inner side of right knee and lower part thigh. Size of small 1 cm in diameter to 1-1/2 cm in a diameter x bone deep. Margins irregular inverted. There was fracture of femur. (6) Six gun shot wounds of exit, in an area 1 cm x 7 cm on outer side of right thigh lower part. Size of small 1 cm in diameter to 1-1/2 cm in a diameter x bone deep. Margins irregular inverted. There was fracture of femur. (6) Six gun shot wounds of exit, in an area 1 cm x 7 cm on outer side of right thigh lower part. Size varying from 1-1/2 cm in diameter to 3 x 2-1/2 cm x muscle to bone deep. Margins irregular and everted. There was fracture of femur. One shot recovered from thigh. (7) No blackening, no scorching on wound surface. He further stated that internal examination showed that there was fracture of 5th right ribs anteriorily and 3rd left rib posteriorily. Pleura was lacerated. Both lungs were lacerated. Pleural cavity contained about 900 cc blood. Pericardium was lacerated. Heart was ruptured. Small intestine contained gases and faecal matter. Cause of death was shock and haemorrhage. ( 18 ) WE have given the above gist of prosecution evidence. ( 19 ) THE learned counsel for the appellants contended that Bhajan (P. W. 1) and Smt. Tar Chand (P. W. 2) were not present on the spot and they had not seen the occurrence and the F. I. R. of the case was not lodged at the time alleged by the prosecution. He further contended that the alleged ocular witnesses Bhajan (P. W. 1) and Smt. Tar Chand (P. W. 2) have given different versions of the manner of occurrence, which belies their presence on the spot. ( 20 ) BHAJAN (P. W. 1) is admittedly father of the deceased. He admitted in his cross examination that the deceased along with his wife was residing in a rented house in village Bharatpur. He was residing in village Karwawatu. As admitted by Smt. Tar Chand (P. W. 2), village Karwawatu is at a distance of 1 kosh (2 miles) from Bharatpur. Bhajan (P. W. 1) further admitted that he used to go to Auraiya daily for spinning cotton of customers. However, he further stated that he used to sit at the shop of his son for half an hour. ( 21 ) SMT. Bhajan (P. W. 1) further admitted that he used to go to Auraiya daily for spinning cotton of customers. However, he further stated that he used to sit at the shop of his son for half an hour. ( 21 ) SMT. Tar Chand (P. W. 2) stated that her father-in-law used to go to Auraiya daily at 7 a. m. and Nazim deceased used to go to his shop at 9 a. m. No occasion has been shown for Bhajan (P. W. 1) to go to shop of deeased at 10 a. m. ( 22 ) BHAJAN (P. W. 1) again stated that before preparing report he had gone to the scribe. Thereafter, came to the police station with report. That his daughter-in-law remained at the spot. Report was written by the scribe when the dead body was brought in cloth. Smt. Tar Chand (P. W. 2) also stated that leaving her near the dead body on the spot her father-in-law went to police station. The police came to the spot and sealed the dead body. Constables took the dead body in a rickshaw. She also came to the police station and then report was given to the police. That her father-in-law told the entire incident to Daroga. Daroga called a Pundit from Tahsil and told him what was told by them. The same fact was reduced into writing by the Pundit and her father-in-law put his thumb impression on it. ( 23 ) THE above statements of the ocular witnesses are against the evidence of I. O. Sri Abdul Salim Khan (P. W. 4), who stated that he went to the spot after lodging report and copying down the Chik report and G. D. report in the case diary. ( 24 ) BHAJAN (P. W. 1) further stated that shot on the deceased was fired from behind the tree. The first shot hit in the thigh. The deceased tried to run, but he fell down and again another shot was fired. The said shot hit on his thigh. The deceased again stood up. Again shot was fired from front side. Smt. Tar Chand (P. W. 2) stated that first shot (goli) was fired on the deceased, when he was standing. The shot was fired from his front side. All the three appellants fired shot simultaneously. The said shot hit on his thigh. The deceased again stood up. Again shot was fired from front side. Smt. Tar Chand (P. W. 2) stated that first shot (goli) was fired on the deceased, when he was standing. The shot was fired from his front side. All the three appellants fired shot simultaneously. Man Singh appellant caused injuries on the head of the deceased with butt of the gun. The medical evidence of Dr. Arun Prakash shows that one wound of entry on the person of the deceased was on left scapular and other wound of entry was on inner side of right knee and lower part of thigh. He admitted in his cross examination that the deceased had not sustained any injury on front side. The injuries on front side were exit wounds. ( 25 ) BESIDES gun shot wounds there were also two lacerated wounds on the head of the deceased. There was no explanation of the above lacerated wounds in the F. I. R. Bhajan (P. W. 1) had not explained as to how the deceased sustained two lacerated wounds on his head. However, Smt. Tar Chand (P. W. 2) stated that appellant Man Singh also caused injuries on the head of the deceased with butt of gun. This explanation of Smt. Tar Chand is an after thought. ( 26 ) BHAJAN (P. W. 1) stated that cousin brother of Virendra was murdered and in the said murder case Nazim deceased was an accused, but he was acquitted from the Court and therefore Virendra was having enmity with the deceased. The motive for the offence, if any, would have been to Virendra Bahadur Singh and Surendra Bahadur Singh, who is real brother of Virendra Bahadur Singh. Man Singh and Krishna Narain since acquitted had no motive. Man Singh was resident of village Turkipar and Krishna Narain was resident of village Bharatpur. Smt. Tar Chand (P. W. 2) stated that Man Singh was friend of her husband Phakkari deceased and he used to visit the house of deceased. She further stated that she had not gone to the village of Chhutkai @ Krishna Narain. How she was knowing Chhutkai @ Krishna Narain is not known. There is no evidence on the record against Man Singh and Chhutkai as to how they joined the two appellants Surendra Bahadur Singh and Virendra Bahadur Singh. She further stated that she had not gone to the village of Chhutkai @ Krishna Narain. How she was knowing Chhutkai @ Krishna Narain is not known. There is no evidence on the record against Man Singh and Chhutkai as to how they joined the two appellants Surendra Bahadur Singh and Virendra Bahadur Singh. Contrary to it, the evidence of Smt. Tar Chand (P. W. 2) referred to above shows that Man Singh was friend of Phakkari deceased. Thus, there is no evidence on record to indicate that appellant Man Singh had also shared common intention of Virendra Bahadur Singh and Surendra Bahadur Singh appellants. ( 27 ) SMT. Tar Chand (P. W. 2) stated that she came to the cycle repair shop of her husband with meals of the deceased. That she kept the container of Tiffin near the deceased and came to culvert of canal where she sat besides her father-in-law and the occurrence took place while she was sitting near her father-in-law. She further stated that she was present on the spot watching the dead body and thereafter, police came, sealed the dead body and took the same to the police station. Then she also went to the police station. This shows that the I. O. had visited the spot in the presence of Smt. Tar Chand (P. W. 2 ). But there is nothing in the evidence of I. O. that he also found Tiffin carrier on the spot. ( 28 ) IN this way, the evidence of alleged ocular witnesses Bhajan (P. W. 1) and Smt. Tar Chand (P. W. 2) do not coincide with each other and the above facts and circumstances leads to infer that neither Bhajan (P. W. 1) nor Smt. Tar Chand (P. W. 2) had occasion to be present at the time of occurrence. ( 29 ) THE statements of above witnesses are contrary to each other on each and every material point referred to above. Therefore, we are of the view that neither Bhajan (P. W. 1), nor Smt. Tar Chand (P. W. 2) were present on the spot and the report was also not lodged at the time alleged by the prosecution. ( 29 ) THE statements of above witnesses are contrary to each other on each and every material point referred to above. Therefore, we are of the view that neither Bhajan (P. W. 1), nor Smt. Tar Chand (P. W. 2) were present on the spot and the report was also not lodged at the time alleged by the prosecution. Since, the presence of the above prosecution witnesses is highly doubtful, no reliance can be placed on their evidence and therefore, the prosecution has utterly failed to establish the guilt of the appellants beyond all reasonable doubts. It appears from the facts and circumstances of the case that none had seen the occurrence and appellants were implicated on account of enmity with the complainant and deceased. ( 30 ) THE appeal thus succeeds. ( 31 ) THE appeal is, accordingly, allowed. Conviction and sentence of the appellants are set aside and they are acquitted of the offence, to which they stood charged with. The appellants are on bail. Their bail bonds are cancelled and sureties are discharged. They need not surrender. Appeal allowed. .