U. S. TRIPATHI, J. This appeal has been directed against the judgment and order dated 20-4-1981 passed by 1st Additional Sessions Judge, Banda in S. T. No. 88 of 1980 convicting the appellants under Sections 148, 302 read with Sections 149 and 201 read with 149 IPC and sentencing them to undergo R. I. for a period of one year under Section 148 IPC, imprisonment for life under Section 302 read with 149 IPC and R. I. for a period of three years under Section 201 read with 149 IPC. All the sentences were ordered to run concurrently. 2. The prosecution story, briefly stated, was as under: All the appellants, Gajraj who died before trial, and Altaf deceased were residents of village Bhadehu, P. S. Baberu, District Banda. In the year 1974 Altaf deceased had caused injuries to Sidhua appellant who had lodged a report of dacoity against him (deceased ). The police submitted final report in the said case, as it was not found correct. On account of it Sidhua was inimical with the deceased. 3. On the morning of 3-12-1977 at about 8. 30 a. m. Altaf deceased along with his son Sharif (P. W. 1) had gone to Panchpokhar Thok for collecting labourers to harvest his paddy crop. Bhaiya Lal Yadav (P. W. 2) had also gone there for the same purpose. The labourers, by that time, had gone to their respective work. Kishora (P. W. 3) met Altaf and he told that the labourers would return back home in the night and he would ask them to go his field next morning. Thereafter, Altaf deceased, his son Sharif (P. W. 1) and Bhaiya Lal (P. W. 2) were returning to their house. When they reached at Kutiya Wali grove, at about 8. 30 a. m. , the appellants Sidhua, Rajuwa alias Rajaram, Kunnu, Raja Bhaiya, Ram Sajeevan, Badri, Gajraj (since dead) and two unknown persons, all armed with guns emerged out from the grove and exhorted that Altaf be killed. Sidhua and Gajraj fired on Altaf by their respective guns. Sharif (P. W. 1) and Bhaiya Lal (P. W. 2) ran towards well and pulia respectively while Altaf deceased ran towards grove of Kahar. All the appellants and other accused surrounded Altaf deceased on the rasta behind Khandhar of Langra Chamar and killed him by causing fire arms injuries. Sidhua and Gajraj fired on Altaf by their respective guns. Sharif (P. W. 1) and Bhaiya Lal (P. W. 2) ran towards well and pulia respectively while Altaf deceased ran towards grove of Kahar. All the appellants and other accused surrounded Altaf deceased on the rasta behind Khandhar of Langra Chamar and killed him by causing fire arms injuries. Thereafter, they dragged dead-body of the deceased towards Ledaha talab. Sharif (P. W. 1) and Bhaiya Lal (P. W. 2) raised alarm and on hearing their shrieks and sound of fire Kishora (P. W. 3), R/o village Panchpokhra Thok came to the spot. Some other persons of the locality also reached there, but none could dare to proceed further on account of threats given by the appellants and other accused. Leaving the dead-body on northern corner of the tank the appellants and other accused ran away. Sharif (P. W. 1) came to his father and found him dead. He prepared report Ext. Ka-1 of the occurrence and lodged the same at police station Baberu at 10. 30 a. m. on the same day. Chik report Ext. Ka-2 was prepared by Head Moharrir Siddheshwar Awasthi (P. W. 4), who made an endorsement the same at G. D. report (Ext. Ka-3) and registered a case under Sections 147, 148, 302 and 149 IPC against the appellants, Gajraj and two unknown persons. 4. The investigation of the case was taken up by Sher Singh, I. O. (P. W. 6 ). He interrogated Sharif (P. W. 1) at the police station and thereafter went to the place of occurrence where dead-body was lying. He appointed punches and conducted inquest of dead- body of the deceased and prepared inquest report (Ext. Ka-4) and other relevant papers Ext. Ka-7 to 10. He inspected place of occurrence and prepared site plan Ext. Ka-12. He also took into possession blood stained clothes of the deceased, blood stained and simple earth from the spot and prepared recovery memos Ext. Ka-5 and Ka-6. 5. Autopsy on the dead-body of Altaf deceased was conducted on 4- 12-1977 by Dr. R. K. Mehrotra (P. W. 7) who found incised wounds, lacerated wounds, contusions, abrasions and gunshot wound as ante- mortem injuries and cause of death due to shock and haemorrhage. He prepared post-mortem report Ext. Ka-14. 6. Ka-5 and Ka-6. 5. Autopsy on the dead-body of Altaf deceased was conducted on 4- 12-1977 by Dr. R. K. Mehrotra (P. W. 7) who found incised wounds, lacerated wounds, contusions, abrasions and gunshot wound as ante- mortem injuries and cause of death due to shock and haemorrhage. He prepared post-mortem report Ext. Ka-14. 6. The Investigating Officer interrogated Bhaiya Lal (P. W. 2) and Kishora (P. W. 3) and on completion of remaining investigation submitted charge-sheet against the appellants as accused Gajraj died during investigation. 7. The cognizance of the case was taken up by the Magistrate, who committed the case to the Court of Sessions. 8. The appellants were tried for the offences punishable under Sections 147, 148, 302 read with 149 and 201 read with 149 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 Sharif (P. W. 1), Bhaiya Lal (P. W. 2), Kishora (P. W. 3) as witnesses of fact and Siddheshwar Awasthi (P. W. 4), Mohd. Isha (P. W. 5), Sher Singh (P. W. 6) and Dr. R. K. Mehrotra (P. W. 7) as formal witnesses. The appellants did not adduce any evidence in their defence. 10. On considering the evidence of prosecution the learned Sessions Judge held that the prosecution successfully proved the guilt of the appellants for the offences punishable under Sections 148, 302 read with 149 and 201 read with 149 IPC. With these findings he convicted and sentenced them as mentioned above. 11. The appellants have challenged their above conviction and sentence by filling this appeal. 12. We have heard Sri R. S. Tripathi learned Counsel for the appellants and learned A. G. A. for the respondent and perused the record. 13. Sharif (P. W. 1) stated that in the year 1974 his father Altaf deceased had caused hurt to Sidhua appellant and altercation had also taken place between them. Sidhua appellant had lodged report of dacoity against the deceased. After investigation the police found that there was no truth in the case and therefore, submitted final report. On the date of occurrence Altaf deceased along with him (Sharif P. W. 1) had gone to village Panch Pakhar Thok for collecting labourers. The labourers were not available. Kishora (P. W. 3) met him there. Bhaiya Lal (P. W. 2) also came there. On the date of occurrence Altaf deceased along with him (Sharif P. W. 1) had gone to village Panch Pakhar Thok for collecting labourers. The labourers were not available. Kishora (P. W. 3) met him there. Bhaiya Lal (P. W. 2) also came there. Kishora (P. W. 3) told that labourers would come in the night and he would tell them to go to field of the deceased next day and his paddy would be harvested. Sharif (P. W. 1), Bhaiya Lal (P. W. 2) and Altaf deceased were returning to their home. At about 8. 30 a. m. , when they reached near Kutia Wali grove all the appellants, Gajraj and two unknown persons all armed with guns came there. Sidhua and Gajraj exhorted. On their exhortation he ran towards well, Bhaiya Lal (P. W. 2) ran toward Kulia (lane) and deceased ran toward Kaharon wali grove. All the appellants and Gajraj chased the deceased and surrounded him behind Khandhar of Dangra Chamar. There they killed him by causing fire-arm injuries and the injuries by butts of guns. They dragged the dead-body of deceased and leaving it on the northern corner of Ledaha talab they ran away. He reached the place where dead-body of the deceased was laying. Other persons of the village also came there. He prepared report Ext. Ka-1 and lodged the same at the police station. 14. Bhaiya Lal (P. W. 2) stated that on the date of occurrence he had gone to village Panch Pokhar Thok for collecting labourers. Sharif (P. W. 1) and Altaf deceased had also gone there. Kishora (P. W. 3) met them and told that labourers had gone to their work and they would come in the night and he would tell them to harvest their crops next day. When they were returning to their home and reached at Ledaha talab all the appellants and Gajraj along with two unknown persons armed with guns came there. Sidhua exhorted and on his exhortation he ran towards south, Sharif (P. W. 1) ran towards west and Altaf deceased ran towards Khandhar of Langra Chamar. All the appellants, Gajraj and two unknown persons total nine persons surrounded the deceased behind the Khandhar of Dangra Chamar and killed him there by causing injuries by gun shots and butts of the guns. All the appellants, Gajraj and two unknown persons total nine persons surrounded the deceased behind the Khandhar of Dangra Chamar and killed him there by causing injuries by gun shots and butts of the guns. Thereafter, they dragged his dead-body towards north of Ledaha talab and leaving dead-body there they ran way. On their alarm Kishora (P. W. 3) also came there and saw the occurrence. Other persons of the village came to the spot after running of the accused persons. 15. Kishora (P. W. 3) stated that on the morning of the occurrence Altaf deceased, Shraif (P. W. 1) and Bhaiya Lal (P. W. 2) had come to Panch Pokhar Thok for collecting labourers to harvest paddy crop. By that time the labourers had gone to their respective work. He told them that when labourers would return back he would tell them and paddy would be harvested by next day. Thereafter, all the three persons went towards east. At about 8. 30 a. m. he heard shrieks and rushed. He saw that all the appellants, Gajraj and two unknown persons all armed with guns were causing injuries to Altaf deceased near Khandhar of Langra Chamar. After killing him they dragged dead-body towards north of talab and leaving dead-body there they ran away. He had seen injuries on the body of Altaf and blood had also fallen there. 16. Siddheshwar Awasthi (P. W. 4) is the Head Constable who prepared chik report Ex. Ka-2 and G. D. report Ext. Ka-3, Mohammad Isa (P. W. 5) is the witnesses of inquest and stated that the Investigating Officer had conducted inquest of dead-body in his presence and prepared inquest report Ext. Ka-4, which was signed by him and other witnesses. The I. O. has also taken into possession blood stained clothes of the deceased and blood stained and simple earth from the place of occurrence i. e. behind Khandhar and sealed the same on the spot. 17. Sher Singh (P. W. 6) is the Investigating Officer. He stated that the case was registered at the police station in his presence and he interrogated complainant Sharif (P. W. 1) at the police station. Thereafter, he reached the spot where he conducted inquest of dead-body of the deceased and prepared inquest report Ext. Ka-4 and other relevant papers Ext. Ka-7 to Ka-11. He inspected place of occurrence and prepared site plan Ext. Ka-12. Thereafter, he reached the spot where he conducted inquest of dead-body of the deceased and prepared inquest report Ext. Ka-4 and other relevant papers Ext. Ka-7 to Ka-11. He inspected place of occurrence and prepared site plan Ext. Ka-12. He also took into possession blood stained clothes of the deceased and blood stained and simple earth from the place of occurrence and prepared recovery memo Ext. Ka-5 and Ka-6. He interrogated Bhaiya Lal (P. W. 2) and Kishora (P. W. 3) and on completion of investigation submitted charge-sheet Ext. Ka-13 against the appellants. 18. Dr. R. K. Mehrotra (P. W. 7) who conducted autopsy on the dead- body of the deceased, stated that he found following ante-mortem injuries on the person of deceased: (1) Incised wound 6 cm x 2 cm x bone deep on left side of skull 5 cm. above left ear and 8 cm above eye brow. Wound was directed below and downwards and lateral. Fracture of bone underneath present. (2) Lacerated wound 4 cm x 3 cm x bone deep on left side of skull 7 cm. above left eye brow and 9 cm. above the ear. Fracture of left parietal bone present. (3) Lacerated wound 2 cm. x 1 cm x bone deep, 1 cm. above the left eyebrow on right side of forehead. Fracture of right parietal bone present. (4) Lacerated wound 5 cm x 1 cm x bone deep on right side of forehead, 1/4 cm above right eye brow. (5) Multiple abraded contusion 5 cm x 3 cm area on left side of forehead and front of skull 3 cm above left eye brow. (6) Contusion 5 cm x 2 cm on left side of skull, 1. 5 cm above left ear. (7) Abrasion 2 cm x 1. 5 cm on left side of face, 1. 5 cm below left eye. (8) Contusion 3 cm x 2 cm on right side of face 2 cm below right eye. (9) Multiple contusion 3 cm x 2. 5 cm on dorsal aspect of left hand 1 cm above left index finger, middle finger. Fracture of metacarpal bone present. (10) Abrasion 7 cm x 4 cm on left side of chest in intra-muscular region. (11) Lacerated wound 2 cm x 1/2 cm x muscle deep on left side of upper lip 1. 5 cm below left nostril. 5 cm on dorsal aspect of left hand 1 cm above left index finger, middle finger. Fracture of metacarpal bone present. (10) Abrasion 7 cm x 4 cm on left side of chest in intra-muscular region. (11) Lacerated wound 2 cm x 1/2 cm x muscle deep on left side of upper lip 1. 5 cm below left nostril. (12) Lacerated wound 2 cm x 1 cm x bone deep on left side of skull and forehead 4. 5 cm above eyebrow. (13) Gun shot wound of entry 2 cm x 1. 5 cm x abdominal cavity deep on umbilical region 2 cm above and lateral to umbilicus. Margins inverted. Wound was directed backward inwards and towards right side. No blackening no charring, no tattooing present. (14) Gun shot wound of exit (four in number) in area 7 cm x 3. 5 cm x abdominal and chest cavity deep on right side of posterior aspect of abdomen and lower part of chest 10 cm below lower angle of scapula and 4 cm lateral to spine and 6 cm above and medial to right iliac crest. Wound was communicating through and through with Injury No. 13. Margins everted. Each wound measuring 1/2 cm x 1/2 cm. 19. He further stated that internal examination showed multiple fracture of left frontal, left temporal and parietal bones, with subdural homatoma present underneath the injury. Membrances were lacerated at Injury Nos. 1, 2 and 3. Brain was lacerated at Injury No. 1. Base of parietal frontal and left occipital bones were fractured. Pleura was punctured on right side of 11th and 12th ribs posteriorly on right side of Injury No. 14. Three pellets were detected from muscles of part of heart lower part chest and abdomen under Injury No. 14. Peritoneum was ruptured at site of injury. Peritoneal cavity contained about 4 Oz clotted blood. Buccal cavity contained clotted blood. Fracture of bone of upper jaw was present at the site of Injury No. 11. Small intestine contained white fluid material. Large intestine contained faecal matters. A through and through wound was present in right kidney. Cause of death was due to coma and shock as a result of ante- mortem injuries. 20. We have given above gist of evidence of the prosecution. 21. The learned Counsel for the appellants contended that the deceased was murdered at lonely place. Large intestine contained faecal matters. A through and through wound was present in right kidney. Cause of death was due to coma and shock as a result of ante- mortem injuries. 20. We have given above gist of evidence of the prosecution. 21. The learned Counsel for the appellants contended that the deceased was murdered at lonely place. None had seen the occurrence and the alleged eye-witnesses Sharif (P. W. 1), Bhaiya Lal (P. W. 2) and Kishora (P. W. 3) were not present on the spot as their evidence is in total contradiction with the medical evidence. That the deceased was a notorious criminal and he would have been murdered by his enemies in the night. 22. The case of the prosecution as set up in the FIR was that all the appellants, Gajraj (since dead) and two unknown persons, in all nine persons, all armed with guns chased and surrounded the deceased behind the Khandhar of Langra Chamar and there they murdered him by causing fire-arm injuries. However, subsequently Sharif (P. W. 1), the son of the deceased made an improvement in his evidence that the appellants, Gajraj (since dead) and two unknown persons caused injuries to the deceased by gun shots and butts of the guns. In his cross-examination he clarified that all the nine persons were having guns. That Sidhua and Gajraj fired on the deceased and he could not see whether others fired or not. He was also unable to tell whether only one shot was fired or nine shots or more than nine shots were fired. That he correctly mentioned in the report that all the nine persons committed murder of his father by surrounding him and causing gun shot injuries. He had not mentioned in the FIR nor told before the I. O. that injuries on his father were also caused by butts of guns. He could not offer any explanation regarding above material omission. 23. Sharif (P. W. 1) admitted that the place of occurrence is at a distance of three furlongs from his house and had he not been with his father, he could not see the occurrence. That there is abadi from his house up to the place of occurrence. 24. He could not offer any explanation regarding above material omission. 23. Sharif (P. W. 1) admitted that the place of occurrence is at a distance of three furlongs from his house and had he not been with his father, he could not see the occurrence. That there is abadi from his house up to the place of occurrence. 24. The spot position as depicted in the site plan shows that the deceased was murdered at place a, which is towards north west of the Khandhar of Langra Chamar in the rasta. Sharif (P. W. 1) allegedly saw the occurrence from place d towards west of place of occurrence at a distance of 20 paces. This shows that there was no obstruction between the place from where the witness saw the occurrence and the place where the occurrence took place. Sharif (P. W. 1) could not take excuse that he could not actually see the manner of assault and since all the assailants were having guns he thought that all caused guns shot injuries. 25. The witness also gave evasive reply regarding involvement of the deceased in various criminal cases. The evidence of the witness is in total contradiction with the medical evidence as according to the evidence of the witness all the 9 assailant caused injuries with gun shots while according to the evidence of Dr. R. K. Mehrotra (P. W. 7) the deceased had sustained only one gun shot wound of entry coupled with a gun shot wound of exit, an incised wound 6 cm x 2 cm x bone deep on left side of skull as well as lacerated wounds and abrasions. There is no explanation of incised wound and lacerated wounds. 26. The learned A. G. A. contended that it has come in the evidence that after causing fire-arm injuries the assailants dragged the dead-body of the deceased towards north of Ledaha talab and therefore, other injuries could have been caused by dragging the deceased and some sharp edged stone or other thing caused incised wound. But there is nothing on record to support the above contention. There is no explanation of incised wound on the person of deceased which was 6 cm x 2 cm x bone deep. This injury could not be caused by dragging. But there is nothing on record to support the above contention. There is no explanation of incised wound on the person of deceased which was 6 cm x 2 cm x bone deep. This injury could not be caused by dragging. The lacerated wounds were also 4 cm x 3 cm bone deep, 2 cm x 1 cm x bone deep, 5 cm x 1 cm x bone deep and contusion 3 cm x 2 cm, 3 cm x 2. 5 cm and so on. These injuries were on right and left both sides of the body. No evidence has been led regarding the nature of surface of the place of occurrence up to northern side of Ledaha talab. In the site plan the above place is shown as rasta. Therefore, these injuries could not be caused by dragging. The explanation offered by the witness in his evidence that assailants also caused injuries by butts of the guns was a subsequent development and appears to have been introduced for the first time in the evidence of the witness to make his evidence in consonance with the medical evidence but in vein, as no explanation was offered regarding incised wound. 27. The above material discrepancies are sufficient to hold that presence of Sharif (P. W. 1) on the spot is doubtful. 28. Bhaiya Lal (P. W. 2) claimed that he had also gone Panch Pokhar Thok to collect labourers where he met Altaf deceased and Sharif (P. W. 1) and was returning to house along with them. The witness stated in his cross-examination that he, Sharif (P. W. 1) and Kishora (P. W. 3) alone saw the occurrence and no person of locality came there. Site plan Ext. Ka-12 shows that there were houses of several persons namely Smt. Chunwa, Kunna, Basdeo, Langara, Chhotey, Prabhu etc. Sharif (P. W. 1) stated that on his alarm several persons of the village also assembled on the spot. He further stated that in the year 1974 Sidhua appellant had lodged report against him and Altaf deceased and he had told before the Investigating Officer that Sidhua appellant was having enmity with him. He again stated that all the nine assailants caused fire-arm injuries and also used gun like lathi. That Badri, Raja Bahiya caused injuries with butts of the guns. He again stated that all the nine assailants caused fire-arm injuries and also used gun like lathi. That Badri, Raja Bahiya caused injuries with butts of the guns. However, he showed his ignorance whether he was witness along with the deceased in a case under Section 396 IPC. This shows that the witness was associated with the deceased. His evidence is also in total contradiction with the medical evidence. Therefore, his presence on the spot was also doubtful for the reasons stated above. 29. Kishora (P. W. 3) stated that the appellants, Gajraj and two unknown persons all armed with guns were causing injuries to the deceased. In his cross-examination he admitted that all the nine persons were armed with guns. He heard sound of ten shots. Eight to ten shots were fired in his presence. He had not seen any assailant causing injuries with Pharsa and lathi to the deceased. That place of occurrence was at a distance of one furlong from his house. He reached the spot on hearing alarm. However, he denied that Sidhua had lodged report of dacoity against him and he also denied that he was servant of Altaf deceased. As mentioned above according to evidence of Bhaiya Lal (P. W. 2) no other person except Sharif and Kishora reached the spot. Kishora (P. W. 3) claimed to have reached the spot on hearing shrieks. It is surprising that none of the person whose houses were in the vicinity of the place of occurrence came to the spot as admitted by the Bhaiya Lal (P. W. 2) but Kishora (P. W. 3) heard shrieks from a distance of one furlong and reached the spot. The evidence of Kishora (P. W. 3) is also in total contradiction with the medical evidence and he could not explain the presence of incised and lacerated wounds as well as contusion on the person of deceased. Therefore, the presence of Kishora (P. W. 3) on the spot is also doubtful for the reasons mentioned above. Besides it the above witnesses also appears a chance witnesses. 30. Since the presence of alleged eye-witnesses is highly doubtful, the prosecution having not examined any witness of locality, has utterly failed to prove the guilt of the appellants. Therefore, conviction and sentence of the appellants cannot be sustained and the appeal, thus, succeeds. 31. Besides it the above witnesses also appears a chance witnesses. 30. Since the presence of alleged eye-witnesses is highly doubtful, the prosecution having not examined any witness of locality, has utterly failed to prove the guilt of the appellants. Therefore, conviction and sentence of the appellants cannot be sustained and the appeal, thus, succeeds. 31. The appeal is, accordingly, allowed and conviction and sentence of the appellants are set aside. They are on bail. Their bail bonds are cancelled and sureties are discharged. They need not surrender. Appeal allowed. .