The present appeal has been directed against the judgment and order dated 6-5-1981 passed by the III Additional District & Sessions Judge, Bareilly in S. T. No. 58 of 1980 convicting and sentencing three appellants namely Atiq Khan, Wasit Khan and Umar Ali under Sections 302 I. P. C. read with 34 I. P. C. Wasit Khan is the father of Atiq Khan who died during the pendency of this appeal. This fact is borne out from the record and the report dated 22-3-2003 submitted by the Chief Judicial Magistrate, Bareilly. His appeal, therefore, stands abated. Now we are left with the appeal of two appellants, Atiq Khan and Umar Ali. The conviction and sentence awarded to appellant No. 1 Atiq Khan is imprisonment for life under Section 302 I. P. C. with the aid of Section 34 I. P. C. and the appellant Umar Ali was awarded seven years rigorous imprisonment under Sections 307/34 I. P. C. apart from life imprisonment under Section 302/34 I. P. C. Atiq Khan was acquitted for the offence under Section 307/34 I. P. C. All the sentences have been ordered to run concurrently. 2. The brief facts of the case are as under:- A month or so before the present incident Habbu Khan s/o Wasit Khan was abducted and murdered. The report was registered against the deceased. Mohhabbat Shah and his brother-in-law Gulsher Khan (brother of widow Smt. Bashiran) at the police station. Since then these, persons absconded for fear of being arrested. Apprehending danger to her children Smt. Bashiran, widow of the deceased, left Saidulgang in panic and settled in the grove of Thakur Tilak Singh in village Attarchendi. Mohabbat Shah had come in Attarchendi two days prior to this incident and he was living with his wife Smt. Bashiran. The murder was committed by the aforesaid accused persons at the dead of night at 2. 00 a. m. on the night intervenning 19/20 May, 1979. Two of the assailants were armed with guns whereas the father of Atiq Khan was armed with a lathi. Atiq Khan was given exhortation by Wasit Khan to take revenge of the murder of his son and Atiq Khan opened his gun and fired upon Mohabbat Shah, who died on the cot itself. On the shrieks of the children of deceased attracted defence witness Tilak Singh who was sleeping on the bundles of harvested wheat crop. Atiq Khan was given exhortation by Wasit Khan to take revenge of the murder of his son and Atiq Khan opened his gun and fired upon Mohabbat Shah, who died on the cot itself. On the shrieks of the children of deceased attracted defence witness Tilak Singh who was sleeping on the bundles of harvested wheat crop. He woke up and exhorted the accused persons. A lantern was burning on the tree so there was sufficient light. He was also fired upon. He suffered injuries on his back. Deena Nath another witness had also witnessed the incident. After the murder of Mohabbat Shah and causing of injuries to Tilak Singh the assailants took to their heels towards Saidullaganj. The incident was allegedly witnessed by apart from Deena Nath the Children of Smt. Bashiran also. 3. The post mortem examination on the corpus of Mohabbat Shah was conducted by Dr. K. C. Asthana. He was not produced during the trial. The medical examination of injured Tilak Singh was conducted by Dr. M. P. Singh on the next morning at 11. 15 a. m. This medical officer is P. W. 2. 4. The prosecution examined in this case Smt. Bashiran P. W. 1, Tilak Singh P. W. 3, Smt. Hamshiran, P. W. 4, daughter of deceased and Deena Nath, P. W. 6. 5. Out of four eye witnesses Tilak Singh and Deena Nath have turned hostile, not support the prosecution case with regard to the identity of the miscreants. 6. Only two witnesses who are closely related to the deceased Mohabbat Shah, Smt. Bashiran and Smt. Hamsheera are, therefore, left as eye witnesses. 7. Learned counsel for the appellants Sri V. P. Srivastava has made following submissions before us: 8. No source of light according to him was there. The presence of burning lantern was an ingenuity of the police. 9. It is further contended that this incident was committed by some strangers and the appellants were nominated on account of pr-existing enmity, on strong suspicion. He has also challenged the presence of P. W. I and P. W. 4. Specially the presence of P. W. 4. Lastly appellants counsel submits that the lodging of the first information report was ante-timed and the same was prepared in consultation with the sub- inspector who reached the spot of occurrence at 4. He has also challenged the presence of P. W. I and P. W. 4. Specially the presence of P. W. 4. Lastly appellants counsel submits that the lodging of the first information report was ante-timed and the same was prepared in consultation with the sub- inspector who reached the spot of occurrence at 4. 00 p. m. According to the statements of P. W. 2 and P. W. 4 till then no communication was sent to the police station concerned i. e. P. S. Anwla, about 7 miles from the place of occurrence. Learned counsel for the appellants submit that the police reached the place of occurrence before the registration of the report. According to him it caused serious dent in the authenticity of first information report and the version contained therein. 10. The motive as alleged by the prosecution is also not convincing. 11. It is further contended that the presence of Inspector Sardar who had been the investigating officer is doubtful. Earlier report was lodged by one of the accused in which the deceased alongwith his brother-in-law were accused. They are absconders in the said case. Thus, it is pleaded that the evidence is to be examined with great care and unless there is reliable evidence against the accused conviction be not confirmed. 12. Evidence of P. W. 3 and P. W. 4 is of no help to the prosecution. 13. So far as the evidence of P. W. I & P. W. 4 is concerned it is to be seen with utmost care and caution. They are closely related witnesses. However, we have to look into the entire evidence with some sense of responsibility. One of the two witnesses is widow of the deceased and other is the married daughter of the deceased. The presence of the deceased has not been challenged by the defence. 14. Coming to the testimony of P. W. 1 we find that her case has been that she was feeding her young child at about 2. 15 p. m. and a lantern was burning, nearby on a branch of mango tree near her hut in which they were living. The hut was not covered from outside. It rested on two walls only. It was open from two sides. 15 p. m. and a lantern was burning, nearby on a branch of mango tree near her hut in which they were living. The hut was not covered from outside. It rested on two walls only. It was open from two sides. She was sleeping in the adjoining verandah which was covered and her husband was sleeping in the other verandah under the sky abutting to the said verandah. 15. At the time of occurrence according to her statement her husband was fast asleep. On seeing the assailants approaching towards him she not only raised alarm, but also identified them. On her alarm Tilak Singh and Deena Nath rushed forward and Mohabbat Shah also woke up. These accused persons opened fire on Mohabbat Shah and caused injuries to Tilak Singh on his back thereafter they ran away towards Saidullaganj. 16. From the testimony of the investigating officer who visited the place of occurrence we find that the deceased was lying asleep on the cot. The injuries suffered by Mohabbat Shah was multiple gun shot wound of entry in an area of 20 cm. x 15 cm. on the right side of the chest, middle and right column region outer size 0. 4 cm. x 0. 4 cm. each muscle deep to skin deep. No blackening and tattooing was present there around. 17. The investigating officer did not mention about any blackening or tattooing around this injury of the deceased. Therefore hardly any time would have been taken in causing the said injury upon the victim. 18. It is also in the statements of P. W. 3 & P. W. 4 Tilak Singh & Hamsheeran that the sub-inspector had arrived at the scene of occurrence within four hours especially when until then absolutely no communication was made to the police. The fact as to how the investigating officer had arrived at the scene of occurrence is shrouded in mystery and there no clue was furnished by the prosecution to his arrival at the scene of occurrence within four hours without any registration of first information report. 19. According to this prosecution witness F. I. R. was prepared on the dictation of the police officer at police station itself at 8. 19. According to this prosecution witness F. I. R. was prepared on the dictation of the police officer at police station itself at 8. 00 a. m. P. W. I Smt. Bashiran has denied the presence of Sub- inspector at the spot and her approaching to the police station, but this denial is repelled by the daughter of the deceased, P. W. 4. She admitted that arrival of the sub-inspector occurred just two hours after the occurrence. The factum of incident was disclosed to him. In the morning her mother P. W. I was taken to police station by the police. No recovery was made from the spot before this. Something was noted on a piece of paper then the Inspector went back to police station. She did not know what was written by him. Thus the likelihood that report came in existence in the morning at the police station and not before as alleged is clearly discernible. Some communication from some quarter was positively made from the village. It brought him to the spot. Consequently this clearly shows that this Sardar who was the investigating officer of the case of murder of Habbu Khan brother of these appellants, and he was fully aware of the entire factum of enmity, the motive, and got the report prepared on that nominating these appellants. They were the probable persons on whom the suspicion ought to be. 20. In such circumstances no credence can be attached to the first information report which was prepared on the dictation of same police officer. He obtained her thumb mark only on the report. The denying of this lady of the presence of sub-inspector in the night in the light of the facts and circumstances discussed above prima facie appear to be purposeful and meaningful. The F. I. R. therefore was not only ante timed but also ante dated. 21. P. W. 3 Tilak Singh categorically states that he was aroused by the shrieks and challenge thrown by the accused persons. Certainly on raising alarm by the widow of Mohabbat Shah and his returning the call he was also fired upon. He did not say that he came to the spot and thereafter he challenged the assailants. Any exhortation given by Wasit Khan for killing him also does not stand our scrutiny. He hardly has any opportunity to identify the assailants. He was at a distance. He did not say that he came to the spot and thereafter he challenged the assailants. Any exhortation given by Wasit Khan for killing him also does not stand our scrutiny. He hardly has any opportunity to identify the assailants. He was at a distance. Night was dark Lantern could not be available to him. 22. The presence of light is also rendered highly doubtful from the statement of sub-inspector arid Smt Bashiran, P. W. 1. 23. She admitted stated that whether any memo of recovery of this lantern was prepared by the sub- inspector or not is not known to her. There are facts which create serious doubt in the presence of any lantern According to the investigating officer, P. W. 7, the lantern was produced by someone else. He himself denied that lantern was recovered from the branch of mango tree whereas P. W. 1 states that it was hanging upon the tree. It is also doubtful that a lantern was burning in open on the said night. Normally the villagers put off the light and then go to bed or at least lower its wick. This is supported form the testimony of P. W. 3 that when he woke up the lantern was off. 24. The shot was certainly fired from a considerable distance. There was no blackening or tattooing in the injury of the deceased. A single shot was fired at the dead of the night from good distance is clearly discernible from the range of its dispersal. The story of her breast feeding the young one is a pure ingenuity. In the event of lantern being put off she will not be able to identify the assailants. 25. In this view of the matter and the facts and circumstances as discussed above it is clear that due to the pre-existing enmity and on the basis of strong suspicion these accused were nominated even if they were or they were not the real assailants. In such circumstances we can not place implicit reliance on her testimony. She had categorically admitted that her vision was slightly impaired at the time of occurrence and it worsened further after the incident. 26. It seems that she was incapable of seeing from a considerable distance. In the circumstances the presence of lady is though not rendered highly doubtful yet identification of the assailants by her is highly improbable. She had categorically admitted that her vision was slightly impaired at the time of occurrence and it worsened further after the incident. 26. It seems that she was incapable of seeing from a considerable distance. In the circumstances the presence of lady is though not rendered highly doubtful yet identification of the assailants by her is highly improbable. In the absence of any source of light it was highly improbable for P. W. 1 Smt. Bashiran to identify the assailants. Therefore, we do not find it safe to place any implicit reliance on her evidence specially when the F. I. R. was held to be ante-timed and ante-dated by us. 27. Both the eye witnesses Tilak Singh and Deena Nath have failed to support the prosecution case on the identification of assailants. It is an important circumstance against the prosecution. 28. Coming to the evidence of P. W. 4 Smt. Hamsheeran she has admitted in her cross-examination that she was previously married to one Sadiq, but there had been a divorce about a month before the present occurrence. It was after a year of the murder of his father, she was remarried to another person Rahmat. The defence had seriously challenged it. Her presence at the place of occurrence is highly doubtful, though she had stated that divorce had taken place before the registration of F. I. R. However, from the tenor of her evidence on this point we find that the divorce had not taken place till the time of this occurrence. 29. In view of the facts and circumstances and the fact that vengeance guided the involvement of the appellants in this incident we can not confirm the conviction. 30. From the statement of P. W. I it is clear that during her subsequent cross-examination she had tried to state that she had been living separately from her devar Nisar Ali. He did not live with her in the grove. This fact seems to be a complete lie. The giving of lantern by Nisar caused a suspicion that he was also there. His non-examination by the prosecution and his non-naming in the F. I. R. creates sufficient cause to doubt the authenticity of the prosecution version. He did not live with her in the grove. This fact seems to be a complete lie. The giving of lantern by Nisar caused a suspicion that he was also there. His non-examination by the prosecution and his non-naming in the F. I. R. creates sufficient cause to doubt the authenticity of the prosecution version. Nisar Ali as per P. W. 1 was living in his own house at some distance from the grove according to P. W. 1 though he too abandoned the native village with P. W. 1. 31. This fact further creates doubt in the presence of a lantern. She had clearly admitted that this sub- inspector Sardar Singh along with other constable had come at about 4 p. m. in her 161 Cr. P. C. statement but during trial she feigned ignorance. He belonged to police station Anwala where at 8 a. m. report was lodged by the lady. 32. This is yet another fact which creates serious doubt in the genuineness of the version contained in the F. I. R. This sub- inspector Sardar was investigating officer of the murder of Habbu Khan and he was in the know of the fact that the deceased and his brother-in-law were accused in the murder case of Habbu and they were absconding. There was absolutely no clue available as to how and on what information the sub-inspector reached at the spot within four hours before the lodging of the F. I. R. According to the statement of Hamsheeran P. W. 4. the report definitely was prepared in the morning at the police station. It was never lodged at any other time as alleged. 33. P. W. 7 Munshi Lal did not state about sending any policemen to the place of occurrence before the registration of the first information report at the police station. 34. In the absence of any explanation about the going of sub- inspector to the spot before F. I. R. there is sufficient occasion to doubt anyone identified the accused during that night. 35. In view of discussions made above, we allow this appeal. The conviction of the appellants is set aside. The appellants are acquitted of the charges for which they were convicted and sentenced. They are on bail. 35. In view of discussions made above, we allow this appeal. The conviction of the appellants is set aside. The appellants are acquitted of the charges for which they were convicted and sentenced. They are on bail. Their bail for non-appearance of their counsel on some earlier occasion was cancelled and non- bailable warrants were issued, but they could not probably be executed because there is no such report available on the record. In view of this if the non-bailable warrants are not executed as yet, it shall not be executed at all. They have not to surrender now. Their bail bonds have already been cancelled. The sureties are hereby discharged. Appeal allowed. .