M. C. JAM, J. ( 1 ) RAM Jatan has filed this appeal against the judgment and order dated 30-9- 1981 passed by Sri U. S. Tripathi, the then VII Additional Sessions Judge, Allahabad in S. T. No. 356 of 1980. He has been convicted under Section 302 I. P. C. read with Section 34 I. P. C. and under Section 323 I. P. C. read with Section 34 I. P. C. For the former offence he has been sentenced to imprisonment for life whereas for the latter the sentence passed is six months rigorous imprisonment. ( 2 ) THE incident occurred on 16-10-1979 at about 10. 30 P. M. in village Baladih, Police Station Mau Aima, District Allahabad and the report was lodged the following day at 8. 00 A. M. by Mata Prasad PW 1. The prosecution case as emerging from the F. I. R. and the evidence adduced in the court may be set forth briefly. Mata Prasad PW 1 and his cousin brother Nankoo PW 2 as also the deceased Ayodhya resided in the village of the incident. Indrakali sister of Mata Prasad PW 1 was married to the accused-appellant. A son was born out of the wedlock. But the accused- appellant turned her out some 3-4- years before the incident. She then started living with brother Mata Prasad PW 1. Thereafter a panchayat was convened in which it was resolved that her marriage with Ram Jatan accused-appellant would be dissolved. It was also resolved that Mata Prasad PW 1 would return the ornaments of Ram Jatan accused and would pay him some money. Consequent upon the dissolution of the marriage, Mata Prasad PW 1 remarried his sister some six months before this incident. Despite the severing of all relations with Ram Jatan accused- appellant, he used to come to the village of Mata Prasad PW 1 and to frequently offer threats to kill him. On the day of the incident also at about 5. 00 P. M. , he came to the village of Mata Prasad PW 1 and told to Kallu and others that he would kill Mata Prasad PW 1. The same night, Mata Prasad PW 1 was sleeping at his door in front of his Baithak. His cousin Nankoo PW 2 was sleeping in front of his house. The accused-appellant with three others came over there. The same night, Mata Prasad PW 1 was sleeping at his door in front of his Baithak. His cousin Nankoo PW 2 was sleeping in front of his house. The accused-appellant with three others came over there. He and one of his companions were armed with lathis whereas two others had a gun and country-made pistol each. Seeing weapons in their hands. Mata Prasad PW 1 ran towards village Abadi raising alarm. The accused-appellant Ram Jatan and his associate with lathi started assaulting Nankoo PW 2. On the alarm raised by Mata Prasad PW 1, Ayodhya deceased, Kedar Nath PW 3, Kallu, Budh Ram and many others of the village rushed up. Mata Prasad PW 1 was ahead of them and was having a torch which he was flashing. When Mata Prasad PW 1 in the company of others reached in front of house of Kedar Nath PW 3, accused/appellant Ram Jatan exhorted his associates pointing him out that he (Mata Prasad PW 1) was the target to be finished. On his such exhortation and pointing out, the accuseds associate armed with gun aimed a shot at Mata Prasad PW 1 who managed to keep aside the fire hit Ayodhya who fell down and died. On being challenged by the witnesses, the accused and his associates ran away towards south of the village. ( 3 ) ON the lodging of the F. I. R. in the next morning at 8. 00 A. M. by Mata Prasad PW 1, a chik F. I. R. was prepared by H. C. Jagannath Prasad PW 5 and a case was registered. The investigation was taken up by Nageshwar Singh PW 6. He proceeded to the scene of the incident and busied himself with the activities related to the investigation including the preparation of inquest report and sending the dead-body of Ayodhya for post-mortem. ( 4 ) NANKOO PW 2-injured was medically examined by Dr. Arun Prakash Bajpayee PW 4 at P. H. C. , Mau Aima, District Allahabad on 17-10-1979 at 4. 30 P. M. In all 10 injuries were found on his person, all of which had been caused by blunt object. They were in the form of lacerated wound, traumatic swellings, contused abrasion and contusions. All injuries were simple and were about one day old. ( 5 ) THE autopsy on the dead body of the deceased was conducted by Dr. They were in the form of lacerated wound, traumatic swellings, contused abrasion and contusions. All injuries were simple and were about one day old. ( 5 ) THE autopsy on the dead body of the deceased was conducted by Dr. L. K. Bhargava PW 8 on 18-10-1979 at 2. 30 P. M. He was 48 years and about 1-1/2 day had passed since he died. The ante-mortem injury found on his person was multiple gunshot injury in an area 8 x 6 x abdominal cavity deep on the front of middle of lower abdomen 2 below the umbilicus. There was no blackening or tattooing. Margins were inverted. It was the wound of entry. The cause of death was shock and haemorrhage due to abdominal injuries. ( 6 ) THE defence was of denial and false implication owing to enmity. The accused-appellant also stated in his statement under Section 313 Cr. P. C. that his marriage with Indrakali was dissolved three years before the incident. As he had taken back the cash and jewellery from Indrakalis father, he was falsely implicated in this case. According to him, a dacoity and actually been committed at the house of Mata Prasad PW 1. ( 7 ) APART from the medical evidence and that relating to the investigation aspect, the prosecution relied on the testimony of Mata Prasad PW 1, Nankoo PW 2 and Kedar Nath PW 3 as eye-witnesses. It may also be stated here as passing reference that the three alleged accomplices of the accused/appellant could not be laid hands on and as such only accused- appellant Ram Jatan was tried. The evidence adduced by the prosecution commended itself to the trial judge who recorded the impugned judg-ment of which the accused-appellant is aggrieved. ( 8 ) WE have heard Sri M. S. Pandey, learned counsel for the appellant and Sri A. K. Bhatt, learned A. G. A. from the side of the State. The submission of the learned counsel for the accused- appellant is that without there being any firm evidence, the accused-appellant has been convicted on conjectural inferences based on superficial testimony tendered by the so-called eyewitnesses. We propose to examine the relevant aspects having bearing on the decision of the appeal in the discussion which follows. The submission of the learned counsel for the accused- appellant is that without there being any firm evidence, the accused-appellant has been convicted on conjectural inferences based on superficial testimony tendered by the so-called eyewitnesses. We propose to examine the relevant aspects having bearing on the decision of the appeal in the discussion which follows. ( 9 ) AT the initial brunt of the matter, it has to be noted that the F. I. R. of the case is delayed one. The incident allegedly took place on 16-10-1979 at about 10. 30 P. M. but the F. I. R. was lodged the following day at 8. 00 A. M. though the distance of the Police Station from the place of the occurrence was only eight miles. It is also in evidence that Kedar Nath, Kallu, Budh Ram and many others of the village had assembled during the occurrence itself. Actually, the deceased Ayodhya was also one of such persons who was allegedly mistakably shot dead by the appellant. This being so, the explanation offered by Mata Prasad PW 1 that he could not lodge the F. I. R. in the night as he apprehended danger from Ram Jatan appellant is not convincing. One Nankoo PW 2 had allegedly sustained injury also in the incident. In ordinary course of things, the F. I. R. must and could have been lodged much earlier than the following day at 8. 00 A. M. Late lodging of the F. I. R. , left sufficient scope for concoction and deliberation. ( 10 ) SECONDLY, the motive assigned by the prosecution against accused-appellant does not fit in the scheme of things. Though motive becomes insigni-ficant when there is direct evidence, yet when the prosecution comes with a motive against the culprit, it is required to be tested on the avnil of probabilities. In the instant case admittedly the marriage of the accused-appellant with the sister of Mata Prasad PW 1 had been dissolved on a panchayat being held in this behalf and he had even remarried his sister to someone else about six months before the incident. As per the decision taken in panchayat, he had returned the jewellery of appellant Ram Jatan and he had even paid some money to him. As per the decision taken in panchayat, he had returned the jewellery of appellant Ram Jatan and he had even paid some money to him. There is nothing to indicate that decision of the panchayat on these terms regarding dissolution of the marriage was forced on the accused-appellant and he was made to submit to it against his wishes. His statement under Section 313 Cr. P. C. was that since he had taken money and jewellery from Mata Prasad PW 1 in consideration of dissolution of the marriage of his sister Indrakali with him he was falsely implicated. As a matter of fact, the dispute having been resolved amicably in panchayat and Indrakali having been remarried elsewhere six months before this incident, there was hardly any occasion of any grudge on the part of the appellant who had even willingly accepted back the jewellery and had taken the money from Mata Prasad PW 1. Thus, there was no motive on the part of the accused-appellant to commit this crime. Under the circumstances of this case, it gives a serious jerk to the prosecution case. ( 11 ) THIRDLY, another unusual fea-ture of the case is that despite the matrimonial dispute having been settled amicably through panchayat, accused-appellant alleged frequently used to visit the village of Mata Prasad PW 1 to offer threats to him. Not only this, on the date of the incident also at about 5. 00 P. M. he had gone to his village and told to Kallu and others that he would kill Mata Prasad PW 1. It sounds to be illogical that he would go to the village of Mata Prasad PW 1 a few hours before the incident to issue such a warning, creating evidence against himself. ( 12 ) FOURTHLY, even if it is taken for the sake of arguments that any such threat had been issued by him on the date of the incident also and he had come to know of it through Kallu, he (Mata Prasad PW 1) would have taken precaution for his safety instead of carelessly sleeping in front of his house in the open in the month of October. ( 13 ) FIFTHLY, we note that in the F. I. R. , there is no mention that Ram Jatan himself was armed with a lathi. ( 13 ) FIFTHLY, we note that in the F. I. R. , there is no mention that Ram Jatan himself was armed with a lathi. Subsequent improvement was made during the course of adducing evidence in the court that the accused-appellant himself was also armed with a lathi which he with his another companion wielded to cause injuries to Nankoo PW 2. ( 14 ) SIXTHLY, it was also unusual that accused-appellant would play second fiddle in only assaulting Nankoo PW 2 with lathi whereas one of the hired or procured criminals or his associates would assume, the main role of shooting on his (accused-appellants) exhortation. ( 15 ) SEVENTHLY, it has to be noted that Nankoo PW 2 sustained ten injuries of blunt object on having been assaulted by Ram Jatan accused-appellant and one of his associates as stated by Mata Prasad PW 1, Nankoo PW 2 himself and Kedar Nath PW 3. The number of injuries sustained by him indicate that several blows had been struck on him. As per the testimony of Mata Prasad PW 1, immediately on awaking on the barking of dogs and spotting accused-appellant Ram Jatan with his three other compa-nions, he had started running towards abadi shouting and flashing his torch. Kedar Nath PW 3 stated that he was sleeping at his house and he awoke when Mata Prasad PW 1- Pradhan reached there from northern side, raising shouts. He, Kallu, Budh Ram and Ayodhya reached Mata Prasad PW 1. He and others reached his house and found Ram Jatan as also one of his companions striking lathi blows on Nankoo PW 2. If Mata Prasad PW 1 had taken to his heels immediately on spotting the accused-appellant and his companions, then there could hardly be any opportunity for him and other witnesses to have been the assault of lathi blows on Nankoo PW 2 at his door where he was sleeping. The object of the fury of the accused-appellant was only Mata Prasad PW 1. Then immediately on being spotted, he would have been targetted by the accused-appellant and his companions, instead of wasting time in assaulting Nankoo PW 2 who was only the cousin brother of Mata Prasad PW 1 and had done nothing to incur the displeasure of Ram Jatan accused-appellant. ( 16 ) ABOVE all, the source of light at the spot was also doubtful. ( 16 ) ABOVE all, the source of light at the spot was also doubtful. Mata Prasad PW 1 admitted that only he had the torch and there was no other source of light. He also admitted that it was a dark night. Though he has claimed that he was flashing his torch towards the accused-appellant and his companions, but it is not digestible that in the moment of crisis, he (unarmed) could have dared to do so and could have the opportunity to recognize the accused-appellant amongst culprits. As instinctual reaction, he would have gone away from the scene as fast as his legs could take him. It is also a fact that it was not he but an uncon-cerned person Ayodhya who died of the shot fired by one of the culprits. ( 17 ) THE incident had all the attributes and trappings as if it was actually a dacoity or an attempt to commit dacoity. No other alleged companion of the accused-appellant could be laid hands on. The possibility cannot be ruled out that out of suspicion, in the belated F. I. R. , Mata Prasad PW 1 named Ram Jatan as one of the culprits on the basis of the previous background. It suited the local police also to save them from the trouble of working out the crime and to avoid the blame of a dacoity or an attempt of dacoity in the area falling in their territorial jurisdiction. On the basis of the previous background, as we have seen, it could be Mata Prasad PW 1 who could nurture a grudge against Ram Jatan as he was forced to return his jewellery and also to pay some amount in cash to him in consideration of the dissolution of the marriage of his sister with him whom he later on remarried with someone else. ( 18 ) IN view of the discussion made hereinabove, we are in judgment that the case against accused-appellant examined in the light of the evidence adduced and attending circumstances suffered from inherent improbabilities. Dark clouds hover all around as is manifest from what we have dealt with in preceding paragraphs. Ram Jatan accused-appellant deserves to be afforded the benefit of doubt. We accordingly allow this appeal, setting aside the impugned judgment of the trial court. The accused-appellant Ram Jatan is on bail. He need not surrender. Dark clouds hover all around as is manifest from what we have dealt with in preceding paragraphs. Ram Jatan accused-appellant deserves to be afforded the benefit of doubt. We accordingly allow this appeal, setting aside the impugned judgment of the trial court. The accused-appellant Ram Jatan is on bail. He need not surrender. Let a copy of this judgment along with record of the case be immediately sent to court below for necessary entries in the relevant register under intimation to this Court within two months. Appeal allowed. .