SUSHIL HARKAULI, J. The four appellants herein were tried and convicted under section 302 read with section 34 IPC by the IIIrd. Additional Sessions Judge, Fatehpur, by Judgment dated 19. 9. 1985 in Sessions Trial No. 79 of 1984 and were sentenced to undergo rigorous imprisonment for life. The case of the prosecution is that on the morning of 28. 9. 1983 the Shiv Shanker (hereinafter referred as the deceased) had gone with one Uma Shanker and Ram Asrey of his village to ease himself at a nearby pond and while coming back from there, at about 6. 30 a. m. , at a place located about 40 paces from his house, the deceased was stopped by the accused, out of whom Hari Shanker was armed with his licensed gun and each of the remaining 3 accused was armed with country made pistols. Accused Hari Shanker fired upon the deceased with his licensed gun. The shot struck the deceased on the wrist of his right hand. The deceased tried to run away from the spot but was caught from waist by accused Ram Bharosey. Accused Vijai Shanker told Ram Bharosey to release the deceased and after release of the deceased by Ram Bharosey, the accused Vijai Shanker also fired. Shiv Shanker fell down whereupon remaining two accused also fired on him. The deceased Shiv Shanker died. Upon hearing the sound of firing, the complainant Amar Nath Mishra, father of the deceased, Girja Shanker, brother of the deceased and one Ram Ratan Yadav of the village reached the spot where they saw the accused running away saying that they had avenged (the murder of) their brother. The motive for the murder set up by the prosecution is that there was a dacoity with murder in the house of the accused Vijai Shanker in which the brother of accused Vijai Shanker had been murdered. In that incident complainant Amar Nath, deceased Shiv Shanker and three other persons are said to have been named as accused. Because of that incident the present accused are said to have been harbouring grudge, due to which they committed the offence in question. 2. The FIR in the present case was registered under section 302 IPC at 11. 45 a. m. on the same day at P. S. Ghazipur, vide serial No. 19 of the General Diary. Because of that incident the present accused are said to have been harbouring grudge, due to which they committed the offence in question. 2. The FIR in the present case was registered under section 302 IPC at 11. 45 a. m. on the same day at P. S. Ghazipur, vide serial No. 19 of the General Diary. A written FIR had been submitted by the complainant, which is Ext. ka-1 and the chick FIR is Ext. ka-4. The G. D. entry No. 19 is Ext. ka-5. The case was investigated by S. I. Surya Kunwar Singh (P. W. 5) who visited the spot, prepared inquest report (Ext. ka-7) of the dead body, diagram and challan of the body. Site plan and other documents were also prepared. Blood stained and unstained earth sample was taken Shoes and chappals found scattered near the dead body with empty cartridges were collected. 3. At the trial the prosecution examined informant Amar Nath, as P. W. 1, Uma Shanker, as P. W. 2, Dr. D. N. Giri, who conducted post-mortem, as P. W. 3, Head Constable Vidhya Sagar Mishra as P. W. 4, the first I. O. as P. W. 5 and the second I. O. as P. W. 6. There is no defence evidence. We have heard both sides at length. 4. From the side of the appellants a defence theory has been suggested that the deceased had gone to ease himself much earlier, when it was dark. He was shot at by some unknown assailants and the incident was not witnessed by any body. Support for such theory is sought from the following facts. (i) The two eye-witness namely Amar Nath and Uma Shanker, the first of whom is the witness who alleges to have seen the accused running away and the second Uma Shanker who is alleged to have accompanied the deceased for toilet, are admittedly on inimical terms with the accused. (ii) Independent corroboration has not been attempted by the prosecution. The prosecution has failed to examine Ram Asrey, who is alleged to have accompanied the deceased (along with P. W. 2 Uma Shanker) to the toilet, Girja Shanker the brother of the deceased and Ram Ratan Yadav who are alleged to have been with P. W. I at the time when P. W. I alleged to have seen the assailants running away, immediately after the incident. It is alleged that there is Harijan Basti very close to the place of incident and that Harijan Basti being is occupied, yet no person from that Harijan Basti has been produced as witness and thus there is no independent corroboration of testimony of two inimical witnesses, although independent corroboration was possible and there is no cogent explanation from the prosecution side for not producing independent corroborative witnesses. (iii) It has been suggested that witness Uma Shanker was not present in the village on the date of incident and his name was incorporated in the FIR, after legal consultation, in the hope that because of enmity he would support the case against the accused. A suggestion has been made to this effect in the cross-examination of Uma Shanker. This theory is sought to be supported by the fact that though the FIR was lodged on 28. 9. 1983 but the statement of Uma Shanker (P. W. 2) under section 161,cr. P. C. was not recorded by the Investigating Officer, although he had been named in the FIR as a star witness, till 21. 10. 1983. The explanation for this delay given in the evidence is that Uma Shanker (P. W. 2) had gone out of station and his statement could be recorded by the I. O. only after his return. However, there is no explanation as to what was the reason for Uma Shanker to go out of station and remain out of station for such a long time. The exact date when he went out of station and when he returned back were also not mentioned. 5. So far as informant Amar Nath (P. W. I) is concerned, it has been suggested on behalf of the appellant that he had admittedly reached the police station at around half past eight but the FIR was not lodged till 11. 45 a. m. There is an explanation by the informant in his evidence for this delay. He says that he had reached the police station with the written FIR at about half past eight, but the police kept him waiting for about three hours before registering his FIR. However, Ext-ka-17 is a G. D. Entry No. 17 of that very police station which is of that very day i. e. 28. 9. 1983 at 8. He says that he had reached the police station with the written FIR at about half past eight, but the police kept him waiting for about three hours before registering his FIR. However, Ext-ka-17 is a G. D. Entry No. 17 of that very police station which is of that very day i. e. 28. 9. 1983 at 8. 55 a. m. which is on record and which says that at that time informant Amar Nath along with Lok Nath (Pradhan of the Village) and other villagers viz. , Gaya Prasad, Ram Vishal, Rarn Asrey and Chandra Shekhar had come to die police station and informed that at 6 - 61/2 Oclock his son Shiv Shanker had been murdered by Hari Shanker with his licensed gun and by Ram Bharosey with country made pistol. The other two accused are not named in the said G. D. Entry and the G. D. Entry also says that the informant had said that he would not lodge the FIR till his nephew Ravi Shanker who was a clerk in the Civil Court, Fatehpur comes back after consulting lawyers in Fatehpur. 6. During the course of cross-examination, the first informant was confronted with the said G. D. entry and he denied having said any such thing. However, we are unable to disbelieve the G. D. entry because it does not merely talk of information given by the informant, but says that the informant was accompanied by the Village Pradhan Lok Nath and the villagers Gaya Prasad, Ram Vishal, Chandra Shekhar and Rarn Asrey. We do not think it probable that all these independent persons including Pradhan of the Village would have been baselessly referred to as accompanying the informant when the informant came to the police station and gave such information about a serious happening like murder of his son alongwith names of the accused. 7. After giving adequate thought to the matter, we find that the incident is said to have taken place at 6. 30 a. m. in the morning in the month of September when there is sufficient daylight. The place of incident is alleged to be about 40 paces from the house of the deceased. This distance is not challenged in the cross-examination of P. W. 1. 30 a. m. in the morning in the month of September when there is sufficient daylight. The place of incident is alleged to be about 40 paces from the house of the deceased. This distance is not challenged in the cross-examination of P. W. 1. The story that the deceased had been murdered while coming back after easing himself is fully corroborated by post-mortem examination report, which says that the stomach intestines and even bladder was empty. The motive and enmity is also not disputed. There are apparently two separate fire-arm shots, which hit the deceased. Thus, other witnesses having covered the short distance of 40 paces for reaching the spot upon hearing the first shot and witnessing the accused running away, is also not improbable. No other major discrepancy has been brought out in the cross-examination of P. W. 1 or P. W. 2 for doubting their presence on the spot. The learned Sessions Judge has placed reliance upon the statement of the informant saying that it was easy for the informant to have said that he had witnessed the actual shooting by the accused but he has not said so and has confined himself to what he actually saw viz. , accused running away. 8. However, the enmity being admitted the possibility of involving extra person other than the assailants always remains. The evidence should therefore be cautiously scrutinized. We will, therefore, consider whether there is any thing within the testimony of eye-witnesses including their cross-examination which could cast a reasonable doubt upon their having been present or upon their having witnessed the occurrence. We will also examine whether there is any other material or fact or circumstance out side that testimony which could cast a reasonable doubt upon the testimony. 9. The G. D. entry referred to above, which is of 8. 55 a. m. , names only two assailants viz. , Hari Shankar and Ram Bharosey. The other two assailants viz. , Vijay Shanker and Man Mohan have been added in the FIR, which has been lodged after almost 3 hours of the said G. D. entry, apparently after legal consultation. There are only two firearm injuries on the body of the deceased. According to the prosecution case the first shot fired by Hari Shanker with his licensed gun hit the deceased on his wrist. The post-mortem report confirms that injury. There are only two firearm injuries on the body of the deceased. According to the prosecution case the first shot fired by Hari Shanker with his licensed gun hit the deceased on his wrist. The post-mortem report confirms that injury. But after this first injury the deceased attempted to run away. The second shot is alleged to have been fired by Vijay Shankar which must have hit the deceased because, after that second shot, the deceased fell down. The remaining two assailants are said to have fired with their country made pistol on the fallen deceased but these remaining two shots do not find place in the form of any further injury on the body of the deceased. 10. In these circumstances, it is difficult to hold beyond reasonable doubt that the two accused, namely Vijai Shanker and Man Mohan, whose names have not been mentioned in G. D. entry, were actually members of the assaulting team. They may well have been implicated as an after thought. 11. However, so far as accused Hari Shanker and Ram Bharosey are concerned, they have been named in the G. D. entry itself which is prompt information, inasmuch as, it is an information given at 8. 55 a. m. in respect of the incident of 6. 30 a. m. , the police station being at the distance of 4 kms. Moreover, both the witnesses i. e. , informant Amar Nath and Uma Shanker have consistently supported the prosecution story in respect of these accused without anything having been elicited in their cross-examination to cast any reasonable doubt upon their testimony. Even if there has been a delay of three weeks in recording the statement of Uma Shanker (P. W. 2) by the Investigating Officer, he is named in the FIR, which was lodged within 5 hours of the incident. We are unable to subscribe to the suggestion of the appellant that this witness was not present in the village and without talking to him the informant gave his name as witness in the FIR on the forfeiture expectation that he would have become available as witness and also that he would support the FIR story in his evidence. 12. We are unable to subscribe to the suggestion of the appellant that this witness was not present in the village and without talking to him the informant gave his name as witness in the FIR on the forfeiture expectation that he would have become available as witness and also that he would support the FIR story in his evidence. 12. The informant having given the information recorded in the G. D. entry along with the Pradhan of the Village and other villagers namely Gaya Prasad, Ram Vishal, Chandra Shekhar and Ram Asrey promptly at 8. 55 is reasonable corroboration about the involvement of two accused named in that G. D. entry having been involved in the incident. There appears no reliable suggestion to the witnesses regarding any serious motive being available to any other person to commit the murder of the deceased. We. therefore, do not find any good reason within the testimony to disbelieve the testimony of two eyewitnesses in respect of the accused Hari Shanker and Ram Bharosey. 13. However, the role assigned to Ram Bharosey in the FIR as well as evidence of the eye-witnesses does not inspire confidence. To repeat the prosecution story is that Hari Shanker fired with his licensed gun. The shot hit the deceased in the wrist. After being shot by Hari Shanker the deceased tried to run away. Ram Bharosey who was armed with country made pistol, instead of using that fire-arm, is said to have caught hold of the deceased from waist to prevent his running away. The said firearm of Ram Bharosey was loaded and capable of firing is the prosecutions own case, in as much as it has been stated that at later point of time when the deceased fell down, Ram Bharosey also fired by his gun along with Man Mohan. Since there are only two gun shot injury, one attributed to Hari Shanker and other attributed to Vijai Shanker in the evidence, the two shots fired at end by Ram Bharosey and Man Mohan did not hit the deceased. Thus, the role of Ram Bharosey remains of catching hold of the deceased. Since there are only two gun shot injury, one attributed to Hari Shanker and other attributed to Vijai Shanker in the evidence, the two shots fired at end by Ram Bharosey and Man Mohan did not hit the deceased. Thus, the role of Ram Bharosey remains of catching hold of the deceased. It is highly improbable that a person armed with loaded firearm and intending to kill the injured victim, would instead of using the fire-arm, tried to catch hold of the victim from the waist which obviously requires both hands while holding the fire-arm in one hand. Wherefore, this part of the prosecution story does not appeal to us and we are of the opinion that testimony of two eye-witness regarding involvement of Ram Bharosey in the manner suggested in the FIR is not acceptable beyond reasonable doubt. 14. In the result, this appeal is allowed so far as it relates to the accused-appellants Ram Bharosey, Man Mohan and Vijai Shanker are concerned. They are acquitted of the offence on benefit of doubt. These three accused are on bail in this appeal. Their bail bonds are cancelled and sureties are hereby discharged. They need not surrender. 15. However, so far as accused-appellant Hari Shanker is concerned, his appeal is dismissed. He shall be taken into custody to serve out the sentence awarded to him by the sessions Court. A copy of this order may be sent to the Chief Judicial Magistrate, Fatehpur, for compliance. .