JUDGMENT Hon’ble Bhanwar Singh, J.—This appeal is directed against the verdict of conviction and sentence dated 29.11.2005, passed by the Additional Sessions Judge, Fast Track Court No. 1, Hardoi. All the accused appellants were convicted under Section 302, I.P.C. for having caused the death of Rajendra Prasad. Whereas Pratipal was alleged to be the main accused having shot Rajendra Prasad dead, the other two appellants were convicted with the aid of Section 34, I.P.C. All were convicted under Section 302, I.P.C. and sentenced to imprisonment for life and a fine of Rs. 5000/- each A default clause was also stipulated. 2. In short, the prosecution case, as unfolded at the trial, was as follows : The accused Pratipal indulged in a hot exchange of words with the informant Raja Ram’s cousin Hari Bux Singh at 7.00 p.m. on 7.4.2003. On hearing the hue and cry, the informant’s younger brother Rajendra Prasad came out of his house and intervened by asking Pratipal as to what was the matter and why the latter was so angry. Pratipal badly reacted to this query and intervention and therefore, warned Rajendra Prasad to get away, otherwise he would be taught a lesson. Rajendra Prasad also got provoked and then the two had a scuffle. However, the other persons present there came to the rescue of Rajendra Prasad and separated the two warrying neighbourers. It appears that Pratipal was not happy with the situation and he, therefore, stepped up to the roof top of his house where he was joined by the other appellants Balvant and Babu Ram. It was alleged further that all the three indulged in shooting spree. In the meantime, Rajendra Prasad ran for his life while entering his house but Pratipal fired a shot at him as a result of which, he died instantaneously. This occurrence was witnessed by the informant Raja Ram, his cousin Hari Bux Singh and villagers Ram Lal, Ram Murti and Ravi Charan. S.I. Vijay Bahadur Singh investigated this case. He prepared inquest report of the deceased and got the dead-body sent to the hospital where Dr. Chandra Kishore conducted autopsy. The Investigating Officer after completing all the formalities of the investigation submitted charge-sheet against the three accused appellants who were put on trial for murder of Rajendra Prasad. As said above, all of them were convicted and sentenced to imprisonment for life with a fine of Rs. Chandra Kishore conducted autopsy. The Investigating Officer after completing all the formalities of the investigation submitted charge-sheet against the three accused appellants who were put on trial for murder of Rajendra Prasad. As said above, all of them were convicted and sentenced to imprisonment for life with a fine of Rs. 5,000/- each. In default of payment of fine, each appellant had to undergo one year’s rigorous imprisonment. 3. Feeling aggrieved of the verdict of conviction and sentence, the three appellants have filed the present appeal. 4. We have heard learned Counsel for the appellants and learned Additional Government Advocate and perused the record. 5. It is significant to note that no independent witness was examined by the prosecution in support of the charge against the accused appellants. A perusal of the First Information Report, Ext. Ka-13 appears to indicate that besides Raja Ram and Hari Bux Singh, many villagers including Ram Lal, Ram Murti and Ravi Charan had come to the rescue of Rajendra Prasad. All of them were alleged to have seen the occurrence in which Rajendra Prasad was allegedly shot dead by Pratipal but no villager came forward to support the prosecution story before the trial Court. 6. In the absence of any independent witness, rule of caution requires that the evidence of the two eye-witnesses, namely Raja Ram, P.W. 1 who is the real brother of the deceased and the complainant and the testimony of Hari Bux Singh, P.W. 2 who is again cousin of the deceased has to be dealt with a good deal of care and it is a settled law that the testimony of a closely related witness is not to be disbelieved simply because he happens to be related to the victim of occurrence, but such a testimony being tainted with interest requires a strict scrutiny and sound corroboration. 7. A relative witness can, no doubt, be a natural and probable witness but his ocular account should be supported by credible evidence and circumstances. If we proceed to discuss the testimony of the two eye-witnesses examined in support of the charge against the appellants with the principle of care and caution, we would find that their testimony does not inspire confidence so as to uphold the verdict of conviction and sentence. 8. If we proceed to discuss the testimony of the two eye-witnesses examined in support of the charge against the appellants with the principle of care and caution, we would find that their testimony does not inspire confidence so as to uphold the verdict of conviction and sentence. 8. The first and foremost lacuna which emerges out of the testimony of the two eye-witnesses is that they have developed the prosecution story by concocting an afterthought idea of Rajendra Prasad looking towards back at the crucial time of being shot at by Pratipal. A careful perusal of the First Information Report would reveal that Pratipal Singh fired a shot at Rajendra Prasad when he was rushing into his house. Consequent to the firing by Pratipal Singh from his licensed gun, Rajendra Prasad sustained fatal injury and instantaneously died. If this theory is believed, its outcome would be that Rajendra Prasad might have suffered injuries on the back side of his body from top to bottom but the medical evidence revealed that the deceased suffered all fire arm entry wounds on his forehead and face. Whereas he suffered one gun shot entry wound on his forehead, there were three entry wounds on his left and right face. In all, as proved by Dr. Chandra Kishore, P.W. 3, there were four fire arm entry wounds and the number of exit wounds was three. There was one contusion also. The injuries were, no doubt, serious but their presence on the face and forehead of the deceased is suggestive of the fact that the deceased prior to his death must have been face to face with the assailant. In this situation, the existence of all these fire arm entry wounds is not in the harmony with either the First Information Report version or the ocular account of the two eye-witnesses Raja Ram and Hari Bux Singh. 9. Before we delve upon their evidence, it is significant to observe that Dr. Chandra Kishore testified before the trial Court that the sizes of the entry and exit wounds could suggest that these injuries could possibly be caused by a rifle. Although ballistic expert has not been examined by the prosecution, yet major difference in the sizes of the entry and exit wounds clearly suggests that they could not be caused by a cartridge having been fired from a gun. All entry wounds were of 1 cm. Although ballistic expert has not been examined by the prosecution, yet major difference in the sizes of the entry and exit wounds clearly suggests that they could not be caused by a cartridge having been fired from a gun. All entry wounds were of 1 cm. diameter but all exit wounds were larger in size, i.e. 1.5 cm. The prosecution has not explained as to how this difference of entry and exit wounds could occur. It is a common knowledge that most of the bullets fired by pistols, revolvers or rifle make wounds larger at exit place as compared to that of the entry site. It is also certain that a cartridge fired from a gun having pellets cannot cause a larger exit wound as is the position in the case of the injuries of the deceased Rajendra Prasad. It is also noteworthy that the First Information Report simply recites about one shot having been fired by Pratipal but presence of four gun shot entry wounds appears to indicate that more than one shots were fired. The explanation of the Doctor that if there were four pellets in a cartridge, all these gun shot wounds could be caused by a single shot is not acceptable in view of the fact that there was a long distance between the alleged shooter and the deceased. Moreover, such a distance being oblique in nature, i.e. from upside to downside, such a large number of fire arm wounds with a single shot do not seem to be probable. Besides, the pellets were neither produced before the Court nor proved by the Doctor. We are, therefore, of the view that major difference in the sizes of the entry and exit wounds clearly rules out the possibility of the deceased being shot at by a gun. 10. There is another equally important aspect of the matter; and, it is to the effect that if Pratipal had fired a shot from the roof top of his house, the direction of all the wounds must have been downward. It is admitted to the eye-witnesses that the height of the roof of Pratipal’s house was 12 ft or so. If it is believed that Pratipal was holding a gun in his hands, a height of 2-3 ft. more must be added and if he fired a shot from 14-15 ft. It is admitted to the eye-witnesses that the height of the roof of Pratipal’s house was 12 ft or so. If it is believed that Pratipal was holding a gun in his hands, a height of 2-3 ft. more must be added and if he fired a shot from 14-15 ft. height, the direction of entry and exit wounds should have been downward but the P.W. 3 Dr. Chandra Kishore clearly state in his cross-examination that the direction of entry wounds was parallel towards back. This statement of Doctor Chandra Kishore again rules out the possibility of Pratipal having fired from the roof top of his house. We are, therefore, of the decisive view that the medical evidence is not compatible with the ocular account of the two witnesses Raja Ram and Hari Bux Singh. 11. In this background, if we examine the testimony of the two eye-witnesses, we are bound to be convinced that it does not seem to be worthy of credit. P.W. 1 Raja Rama went to lodge the report in the evening of the date of occurrence. However, when he came back, he found the police including the Investigating Officer present at the site of occurrence. P.W. 5 S.I. Vijay Bahadur Singh disclosed that he received the information of this occurrence on his R.T. Set but it does not seem to be sustainable for the simple reason that his departure was not noted in the general diary. He could have very well informed the police station on his R.T. Set that he was proceeding to the place of occurrence. Had this information been noted in the diary, his evidence could have been trustworthy. However, as suggested and submitted by the learned Counsel for the appellants, the Investigating Officer came along with the informant, inspected the site and the dead-body first and then the First Information Report was prepared. 12. The fact that the First Information Report was anti-timed and not at all lodged by the informant on the same evening is proved from a major inconsistency having occurred between the evidence of the Sub Inspector Vijay Bahadur Singh and the two eye-witnesses. P.W. 1 Raja Ram at internal page 4 of his testimony (page 28 of the paper book) testified that the dead-body of his brother Rajendra Prasad kept lying at his house throughout the night. P.W. 1 Raja Ram at internal page 4 of his testimony (page 28 of the paper book) testified that the dead-body of his brother Rajendra Prasad kept lying at his house throughout the night. He added further that he set out for the mortuary at 7.00 a.m. on the other day along with the dead-body of his brother. The dead-body was transported by a tractor straightaway to the mortuary. Likewise, P.W. 2 Hari Bux Singh stated at internal page 2 of his cross-examination (page 32 of the paper book) that the Sub Inspector having inspected the site of occurrence on the same evening came back to the police station leaving behind 4-5 constables to guard the dead-body. He stated further that the dead-body was packed and sealed by the Investigating Officer in the morning on the other day of occurrence and then it was carried by the Sub Inspector. 13. Quite contrary to the above consistent evidence of the two eye-witnesses, P.W. 5 Vijay Bahadur Singh stated in his cross-examination (page 43 of the paper book) that he stayed at the site of occurrence for three hours, prepared the inquest report and sent the dead-body at or around 11.00 p.m. on the evening of occurrence itself. He rejected the suggestion to be as baseless that the dead-body was dispatched by him in the morning on the other day of occurrence. He, however, could not substantiate the dispatch of the dead-body for post-mortem with a positive piece of evidence, i.e. entry in the relevant case diary. His evidence that he got the dead-body sent on the night of occurrence itself was falsified by an important omission in his case diary. He admitted that he did not mention in the case diary about the time of the dead-body being dispatched. With reference to this major inconsistency, learned Counsel for the appellants contended and rightly so that Rajendra Prasad died during the night in the manner other than the one proposed to be proved by the prosecution. Not only the testimony of the two eye-witnesses is incredible but it is surprising to note that the P.W. 5 SI Vijay Bahadur Singh also made an attempt to fall in line with the witnesses and concealed the reality that the dead-body kept lying at the house of the informant during the whole night. the testimony of PW 4 contradicts the evidence of all. the testimony of PW 4 contradicts the evidence of all. He stated that he took in his custody the dead-body of the deceased in sealed state at 12 OClock in the night but started from the village in the following morning. These varying versions give a serious blow to the prosecution story. In this way, the prosecution case fails to inspire a confidence about the genuineness of its story. 14. In the above sequence, learned Counsel for the appellants contended that the deceased had a criminal background and he was killed by some miscreants in the night and his dead-body was found in the jungle. When P.W. 5 Viiay Bahadur Singh was asked about the number of cases pending against the deceased, he pleaded his ignorance and said that he did not know the number of the criminal cases in which the deceased was involved. He, however, admitted that usually, he resided in district Shahjahanpur. 15. The second infirmity which may be pointed out is that there is no hand pump in the vicinity of the informant’s house as is confirmed by P.W. 5 S.I. Vijay Bahadur Singh. It was perhaps on account of this reality of non-existence of the hand pump that he had not indicated any hand pump in the site plan. This rules out the evidence of P.W. 1 Raja Ram and P.W. 2 Hari Bux Singh that Pratipal had an altercation first with Hari Bux Singh and then with Rajendra Prasad at the site close to the hand pump located in the neighbourhood of Ram Gopal’s house. P.W. 1 Raja Ram’s evidence that he had shown the hand pump in question and the electric pole standing nearby was contracted by SI Vijay Bahadur Singh who categorically conceded that neither there was any electrical pole nor a hand pump close to the house of Ram Gopal. This inconsistency rules out the prosecution case regarding the place of occurrence where an altercation had taken place between the deceased and Pratipal Singh. 16. Thirdly, SI Vijay Bahadur Singh’s admission about the manner of occurrence in which Rajendra Prasad was killed gives a death blow to the testimony of the two witnesses Raja Ram and Hari Bux Singh. This inconsistency rules out the prosecution case regarding the place of occurrence where an altercation had taken place between the deceased and Pratipal Singh. 16. Thirdly, SI Vijay Bahadur Singh’s admission about the manner of occurrence in which Rajendra Prasad was killed gives a death blow to the testimony of the two witnesses Raja Ram and Hari Bux Singh. It is significant to note that contrary to the First Information Reports version, P.W. 1 Raja Ram and P.W. 2 Hari Bux Singh stated that Prati Pal Singh fired a shot at Rajendra Prasad when the latter was entering his house and it was a chance that Rajendra Prasad while approaching his house looked back towards Pratipal Singh and suffered fire arm injuries. This was a very important version of the two eye-witnesses. Not-only that Raja Ram did not mention the fact of Rajendra Prasad looking back at the relevant time of being shot at but SI Vijay Bahadur Singh also admitted that neither of the two eye-witnesses, namely Raja Ram and Hari Bux Singh disclosed to him at the time of their statement being recorded under Section 161 that Rajendra Prasad was shot at when he was running forward and looking backward. This being an important omission goes to the very root of the testimony of the two eye-witnesses and this omission, coupled with there being no such version in the First Information Report gives a serious blow to their ocular account and the omission at the two relevant places proves beyond doubt that the two eye-witnesses developed an afterthought version and manufactured the theory of Rajendra Prasad having looked back at the alleged time of being shot at. We, therefore, disbelieve the testimony of both the eye-witnesses. 17. There is yet fifth reason to disbelieve the prosecution story as also the evidence of the eye-witnesses. A perusal of the inquest report would clearly depict that in the column meant for the place of the dead-body lying, it was initially written as verandah’ but the said word was interpolated and substituted with the word “Darwaja” (door). This interpolation again seems to have been made in the inquest report with a view to bring the site of occurrence in consonance with the evidence of the two witnesses. This interpolation again seems to have been made in the inquest report with a view to bring the site of occurrence in consonance with the evidence of the two witnesses. It appears that the dead-body was lying in the verandah when it was inspected by the Investigating Officer but subsequently, this column was interpolated and the word ‘’Darwaja”, i.e. the door was inserted. This interpolation proves mala fide not only on the part of the Investigating Officer but also upon the entire prosecution agency including the two witnesses. 18. There are also interpolations over the figures of the time. These interpolations pertain to the timing of the inquest report being prepared. The overwriting over figures of the time again creates a strong suspicion over the genuineness of the prosecution story that the inquest report was prepared during night, i.e. within reasonable time from the date of occurrence. 19. The sixth strong reason to disbelieve the testimony of the two witnesses is that no door frame was noticed in the house of the informant by the Investigating Officer nor any pellet or cartridges was found on the site of the said occurrence. According to the statements of the two eye-witnesses, the dead-body of Rajendra Prasad was lying on the door frame of the entry gate of his house but as noticed by the Investigating Officer, there was no door frame at all. P.W. 2 Hari Bux Singh even went to the extent of disclosing the size of the door frame and as stated by him, it was five Angul wide. Their statement to the effect that Rajendra Prasad collapsed at the door of his house could have been believed even without there being a door frame but the original recital in the inquest report to the effect that the dead-body was lying in the verandah collides with their testimony and gives a serious jolt to their credibility. 20. It may be observed next that if Prati Pal was armed with a gun at the time of altercation between him and Rajendra Prasad, he would have used his gun at that very point of time. The testimony of Raja Ram that Prati Pal had a scuffle with Rajendra Prasad after handing over his gun to someone else does not seem to be believable as it seems to be improbable. The testimony of Raja Ram that Prati Pal had a scuffle with Rajendra Prasad after handing over his gun to someone else does not seem to be believable as it seems to be improbable. P.W. 1 Raja Ram developed during his cross-examination without there being an iota of reference in his statement under Section 161, Cr.P.C. that Pratipal handed over the gun before entering into scuffle with Rajendra Prasad to the wife of Balwant accused. It shows that Hari Bux Singh is in the habit of telling lies. He developed not one but many versions on various issues. However, his evidence that there was no firing at the site of occurrence after Raja Ram and other witnesses appeared at the scene hammers a last nail in the coffin. It may be elaborated that in his cross-examination, P.W. 2 Hari Bux Singh testified (page No. 35 of the paper book) that Rajendra Prasad collapsed and died soon after he was shot at and when he arrived at the said site, he did not find Raja Ram there but as soon as he raised an alarm, Raja Ram and other witnesses came there rushing and after their arrival, no incident of firing took place. This candid admission of P.W. 2 Hari Bux Singh rules out the genuineness of the testimony of P.W. 1 Raja Ram. It emanates from this admission that Raja Ram did not see Pratipal having fired any short at the deceased. 21. In this sequence, it is also significant to note that P.W. 1 Raja Ram conceded that when he saw the dead-body of his brother lying, no villager was present till then. He explained further that all villagers came to the site of occurrence after he had seen the dead-body of his brother. This admission on his part belies the First Information Report version that the incident of firing was seen and witnessed by villagers Ram Lal, Ram Murti and Ravi Charan. It appears that it was for this reason that no villager came forward to make his deposition before the trial Court in support of the prosecution story. 22. The above is further strengthened from Raja Rams own admission that the house of Pratipal is not situated in front of his house; rather his (Raja Ram) house and that of Pratipal are located adjacent to each other. 22. The above is further strengthened from Raja Rams own admission that the house of Pratipal is not situated in front of his house; rather his (Raja Ram) house and that of Pratipal are located adjacent to each other. Not only this but he added further that he had shown the location of Pratipal’s house by the side of his own house but this is not so depicted in the site plan. This completely demolishes the prosecution story. 23. The two appellants, namely Balvant and Babu Ram were not assigned any role of firing at the deceased or anyone else. The theory of their having joined the main accused at the roof top of the latter’s house seems to be a complete concoction. 24. In view of the infirmities, inconsistencies with disturbing features all around in the prosecution story, we are of the decisive opinion that the prosecution miserably failed to establish the charges against the appellants. They are, therefore, held not guilty of the charges levelled against them and accordingly acquitted. 25. In the result, the appeal is allowed. The judgment and order of conviction and sentence in appeal is set aside. The appellant Pratipal will be released forthwith unless wanted in some other case. The other two appallants who were on bail need not surrender and their bail bonds are cancelled and sureties discharged. ————