JUDGMENT Hon’ble G.P. Srivastava, J.—The above appeals are directed against the judgment and sentence passed by learned Addl. Sessions Judge (Fast Track Court No. 1) Budaun dated 17.12.2005 in Session Trial No. 705 of 1999, State v. Rishipal, Bhulli, Sheo Dutt Yadav, Sunil Pandit and Nek Ram, under Section 302, read with 34 I.P.C. P.S. Gunnaur District Budaun and Session Trial No. 751 of 2000, State v. Sunil Pandit, under Section 25 Arms Act P.S. Gunnaur District Budaun. The learned Addl. Sessions Judge (Fast Track Court) has acquitted the accused Sunil Pandit and Sheo Dutt Yadav in offence under Section 302 read with 34 I.P.C. and to accused Sunil Pandit under Section 25 Arms Act. He has convicted and sentenced to accused-appellants Nek Ram, Rishipal and Bhulli for offence under Section 302 read with 34 I.P.C. to life imprisonment and fine of Rs. 5,000, each. Feeling aggrieved with the judgment and sentence passed by the Court below the accused Nek Ram, Rishipal and Bhulli have come up in appeal. 2. The prosecution case in brief is that on 2.7.1999 the first informant Gajram, P.W. 1, along with his brother deceased Nahar Singh had come to village market Patriya to purchase buffalo. They did not purchase buffalo and were coming back along with Jhabbal and Natthu to village Junawai. When all four persons came near the village Lahra Nagla Shyam the accused persons Rishipal, Nek Ram and Bhulli who were sitting in ambush came out armed with country made pistols. They exhorted that they will not leave deceased Nahar Singh alive as they are in his search for so many days. The first informant and others fled from culvert towards the road. The aforesaid accused persons caught hold deceased at 6.30 p.m. and dragged him to a sugar cane field of one Madhopal where they committed murder of the deceased by causing fire arm injuries to him. There is old enmity in between the deceased and the accused persons. Due to fear the first informant did not go to police station to lodge the report in the night. The written report Ext. Ka-1 was submitted at police station Gunnaur on the next day i.e. on 3.7.1999 at 7.15 a.m. The chick F.I.R. is Ext. Ka-18. The Investigating Officer visited the place of occurrence, sent the dead-body for post-mortem and prepared site plan Ext. Ka-2. The written report Ext. Ka-1 was submitted at police station Gunnaur on the next day i.e. on 3.7.1999 at 7.15 a.m. The chick F.I.R. is Ext. Ka-18. The Investigating Officer visited the place of occurrence, sent the dead-body for post-mortem and prepared site plan Ext. Ka-2. The autopsy of the dead-body of deceased Nahar Singh was conducted by Dr. Neel Kamal on 3.7.1999 at 4.00 P.M. The post-mortem report is Ext. Ka-14. According to the opinion of the doctor the deceased was aged about 30 years. The death had taken place a day before the post-mortem examination. The doctor found the following ante-mortem injuries on his person : 1. A firearm wound of entry on (Rt.) side face 1.0 x 1.0 cm x 3.0 cm anterior to (Rt.) ear, blackening and tattooing present around wound. Margins inverted. 2. A firearm wound of exit (Lt.) side temporal region 2.0 cm x 1.5 cm margins everted, just anterior to carpening Injury No. 1 is communicating with injury No. 2. 3. A firearm wound of entry on (Rt.) side face on (Rt.) chest 1.0 cm anterior to ear lobule (Rt.) 10 x 1.2 cm margins inverted, cavity deep, blackening and tattooing present around wound. 4. A firearm wound of exit on (Lt.) side cheek of size 2.0 x 1.8 cm x cavity deep, margins everted, injury No. 3 and 4 communicated each other. 5. A firearm wound of entry on (Rt.) side chest on lateral aspect 1.5 cm x 1.0 cm x cavity deep, 14.4 cm below axillary fossa, margins inverted. 6. A firearm wound of exit on (Rt.) side back chest other end of vertebra, 2.0 cm lateral to midline 20 x 20 cm injury No. 5 and 6 communicating to each other. 7. A firearm wound on entry on (Rt.) arm 1.0 x 1.0 cm on lateral aspect 6.0 cm above (Rt.) elbow blackening and tattooing present around wound margins inverted. 8. A firearm wound of exit on (Rt.) arm on medial aspect (Rt.) arm 2.0 x 1.5 cm, 7.0 cm above (Rt.) elbow joint margins everted injury No. 7 and 8 communicating each other. 9. A firearm wound of entry on (Rt.) forearm 1.0 x 1.2 cm on posterior lateral aspect of (Rt.) forearm 8.0 cm below (Rt.) elbow joint, margins inverted. 10. 9. A firearm wound of entry on (Rt.) forearm 1.0 x 1.2 cm on posterior lateral aspect of (Rt.) forearm 8.0 cm below (Rt.) elbow joint, margins inverted. 10. A firearm wound of exit on (Rt.) forearm on anterio medial aspect 1.5 cm x 1.5 cm, 11.0 cm below (Rt.) elbow joint margins everted injury No. 9 and 10 communicating each other. 11. A firearm wound of entry on lateral aspect of (Lt.) arm 1.0 x 1.2 cm x 10.0 cm above (Lt.) elbow joint margins inverted blackening and tattooing present around wounds. 12. A firearm wound of exit on medial aspect of (Lt.) arm 2.0 x 2.0 cm x 9.0 cm above (Lt.) elbow margins everted injury No. 11 and 12 communicating each other. 3. According to the opinion of doctor the death was caused due to shock and haemorrhage as a result of ante-mortem injuries. 4. The Investigating Officer prepared inquest report Ext. Ka-4. During investigation the name of accused Sunil Pandit and Sheo Dutt Yadav came into light. The Investigating Officer recovered a country made pistol at the pointing of accused Sunil Pandit. After usual investigation the Investigating Officer submitted charge-sheet against the accused Sunil Pandit, Sheo Dutt Yadav, Bhulli and Rishipal. The accused Nek Ram was summoned under Section 319, Cr.P.C. as he was dropped during investigation. 5. The accused persons were charged for offence under Section 302 read with 34 l.P.C. They pleaded not guilty and claimed trial. 6. The prosecution examined P.W. 1 Gajram, P.W. 2 Natthu Singh, P.W. 3 Layak Singh (hostile), P.W. 4 Sukhi Ram, a witness of inquest P.W. 5, S.I. Sukhveer Singh Yadav, P.W.6 S.I. Badruddin, P.W. 7 Dr. Neel Kamal, P.W. 8 S.I. Ram Niwas and P.W. 9 Head Constable Uma Shanker Sharma. 7. The accused persons in their statement recorded under Section 313 Cr.P.C. have denied the prosecution case. They did not lead any evidence in defence. The accused appellant Rishipal has stated that his father Ram Singh got a case registered against the deceased and Natthu Singh PW 2 in offence under Section 394, l.P.C. in which the deceased and Natthu Singh were insisting for compromise but he refused which annoyed them. He has further stated that he was a witness against deceased in a case of police encounter which is still pending. He has further stated that he was a witness against deceased in a case of police encounter which is still pending. Accused appellant Nek Ram has stated that he is an old, ill aged about 80 years. His one eye has been damaged and the other is corrected. He is unable to see his hand and feet trembled. He has been Pradhan of his village for 33 years. Appellant Bhulli has stated that he was witness in a case under Section 394, I.P.C. against deceased and Natthu Singh. 8. After considering the evidence on record the learned Addl. Sessions Judge has convicted and sentenced the accused appellants as aforesaid. 9. We have heard Sri J.S. Sengar, learned Counsel for the appellants, learned A.G.A. for the State and gone through the entire evidence on record. 10. It is undisputed that the deceased Nahar Singh died on 2.7.1999 due to fire arm injuries. The suggestion given to P.W. 1 Gajram by the defence that the deceased was coming on a tractor after winning Rs. 60,000- in gambling and was done to death by unknown person near the culvert so the place of occurrence also stand admitted. 11. The prosecution has examined two witnesses of fact P.W. 1 Gajram and P.W. 2 Natthu Singh. The third witness Layak Singh has been declared hostile, P.W. 1 Gajram is younger brother of deceased Nahar Singh. He has stated that he lives separately and not with the deceased though in the same house. He has stated that on the day of occurrence he along with deceased came to Patariya market from their village Kadrabad for purchasing buffalo alongwith one Jhabbal Singh who has not been examined. He has further stated that P.W. 2 Natthu Singh met them in the market. Natthu Singh belongs to village Bisaula which is about 1 km. away from the market where he had come to purchase vegetables and purchased some vegetables for his house. He accompanied the deceased and the first informant Gajram P.W. 1 to village Kadrabad. 12. It is undisputed that both the witnesses of fact P.W. 1 Gajram and P.W.2 Natthu Singh are highly inimical. P.W. 1 Gajram has admitted that a case under Section 394, I.P.C. is pending against deceased Nahar Singh and P.W.2 Natthu Singh which was lodged by Ram Singh father of appellant Rishipal. 12. It is undisputed that both the witnesses of fact P.W. 1 Gajram and P.W.2 Natthu Singh are highly inimical. P.W. 1 Gajram has admitted that a case under Section 394, I.P.C. is pending against deceased Nahar Singh and P.W.2 Natthu Singh which was lodged by Ram Singh father of appellant Rishipal. He has further admitted that appellant Rishipal is a witness in a case of police encounter against deceased. The informant Gajram is a real brother of the deceased and P.W. 2 Natthu Singh was a co-accused with the deceased. Therefore the statement of both the witnesses deserves more careful and critical appraisal. There are certain circumstances which go to show that in fact both the witnesses were not present on the spot nor they did see any occurrence. 13. The first circumstance is that P.W. 1 Gajram and the deceased is resident of village Kadrabad. P.W.1 Gajram has stated that on the day of occurrence he went to Patariya Bazar which is 6 km. away from his village in order to purchase a buffalo. The buffalo was to be purchased by the deceased and not by him. No buffalo was purchased by them and they remained in the market up to 5.00 P.M. Therefore they proceeded towards the village through Junawai which is 8 kms. away from Patariya Bazar and Kadrabad is further 8 km. from Junawai. Instead of choosing a straight way they have choosen a long way and explanation for this election was given that they wanted to go their village by some transport which was not available in the straight way. P.W. 1 Gajram has further admitted that they did not get any transport and proceeded to Junawai on foot. They reached at the place of occurrence on foot which was about 4 or 5 kms. Whatever may be the choice of way by the first informant and the deceased there is nothing to suggest how and why the accused persons who were the resident of village of the deceased came to know that the deceased will go by the long way on foot which was 16 kms and not by the straight way which was only 6 kms. 14. 14. The second circumstance against the authenticity of the statement of the prosecution witnesses is the fact that no money was recovered from the dead-body of the deceased though it is the prosecution case that the deceased was to purchase the buffalo. P.W.1 Gajram has stated that the money was handed over to him. No reason has been assigned by him why the deceased who was a young man 30 years gave the money of the first informant for safe custody. The Investigating Officer, Sukhbir Singh Yadav P.W. 5 has stated that he did not recover any money from the dead-body but he again told that 10 or 20 rupees were recovered from the dead-body which he handed over to the first informant. He did not prepare any memo nor mention in the case diary regarding the said recovery of 10 or 20 rupees. This shows that nothing was recovered from the possession of the deceased which belies the theory of the prosecution that the deceased had gone to purchase a buffalo in the market. 15. The third circumstance is regarding the presence of P.W. 2 Natthu Singh who is an inimical witness and even has been co-accused with the deceased. He has stated that he lives ½ km away from village market Patariya. He has gone to purchase vegetable for his house and he did purchase some vegetable but instead of going back to his house where his family members must have been waiting for the vegetable to cook, accompanied to the deceased and P.W. 1 Gajram to their village by a way which was 16 kms away from the market Patariya. The presence of this witness is not at all natural but only introduced with a view to lend support to the prosecution case. 16. The fourth circumstance is that the first informant was never sure as to who had committed the murder of the deceased. In the F.I.R. the name of appellants have been mentioned as actual killers of the deceased. In the statement recorded under Section 161, Cr.P.C. the first informant introduced two other accused persons Sunil and Sheo Dutt and did not name Nek Ram. But in the statement before the trial Court the first informant has stated that appellant Nek Ram had also been one of assailant and he did so nothing regarding accused Sheo Dutt and Sunil. 17. But in the statement before the trial Court the first informant has stated that appellant Nek Ram had also been one of assailant and he did so nothing regarding accused Sheo Dutt and Sunil. 17. Learned Counsel for the appellants has argued that the prosecution story as set up does not get support from the medical evidence. He has further argued that according to the prosecution case the deceased was dragged by the accused persons up to Sugar cane field from the culvert which at a distance of 2 furlongs as described from site plan but the post-mortem report does not show any abrasion on the body of the deceased. P.W. 7 Neel Kamal who conducted the post-mortem of the deceased has stated that if the deceased is dragged up to 25 to 30 yards there may be possibility of abrasion on his body but no abrasion was found on the dead-body. In order to reconcile the matter the first informant Gajram P.W. 1 has stated that the deceased was not dragged but taken to the field by the accused persons but this fact was developed by him only in the cross-examination and not even in the examination-in-chief. However the story of taking to the field from the culvert by the accused persons does not appear credible. Firstly because the accused Nek Ram is an old man of 80 years and two other accused persons cannot forcibly take to young stout man of a criminal nature up to two furlongs. Besides that if the accused persons intended to kill the deceased there was no justification for dragging him or taking him to two furlongs when they could easily have killed him near the place they found him first. Therefore the story set up by the prosecution does not find any support from the medical evidence and other circumstance as regard the manner of occurrence is concerned. 18. Learned Counsel for the appellants has further argued that the F.I.R. is highly belated therefore the possibility for consultation, deliberation and false implication cannot be ruled out. According to the prosecution case the occurrence has taken place at about 6.30 P.M. The first informant has stated that there was no darkness at that time. 18. Learned Counsel for the appellants has further argued that the F.I.R. is highly belated therefore the possibility for consultation, deliberation and false implication cannot be ruled out. According to the prosecution case the occurrence has taken place at about 6.30 P.M. The first informant has stated that there was no darkness at that time. It is of the common knowledge that in July there is sufficient day light at about 6.30 P.M. The First Information Report was lodged on the next day at about 7.15 A.M. The distance of place of occurrence from the police station is 10 ½ Kms. The first informant P.W. 1 Gajram has stated that due to fear he could not go to lodge the F.I.R. and remained at the place of occurrence for whole night. He has further stated that his family members came to the place of occurrence at about 12.00 in the night. He has stated that the sunset on the said day took place at about half hour or 3/4 hour after the occurrence. He did not ask P.W. 2 Natthu Singh or Jhabbal to go to the village for giving information. He has further stated that after hearing the sound of fire a large number of persons collected at the place of occurrence. He has further stated that there is a Montha Factory near the place of occurrence and 10 or 5 persons reached from the said factory. He has further admitted that there is a police out post at village Junawai which is about 2 Km from the place of occurrence but neither he went to inform the police at the police out post nor anybody else had gone to inform the police though a large number of peoples were assembled there. P.W. 2 Natthu Singh has stated that after getting information of the murder the people of village Lahra Nagla Shyam Ghasita and Kadrabad reached there. These persons came within an hour or so. He could not know how and by what means the family members came there, so from the evidence of the prosecution itself a large number of persons including the family members reached there within an hour of the occurrence even then in the day light neither the first informant nor any other member of his family went even to the police out post which was about 2 Km. away from the place of occurrence to lodge the F.I.R. Thus the argument of the learned Counsel for the appellants that the F.I.R. is highly belated bears substance. 19. In view of above discussions it is established that the prosecution witnesses of the fact are unreliable. Their presence at the place of occurrence is highly doubtful. Their statements do not correspond with the medical evidence and the F.I.R. is highly belated. Therefore we are of the opinion that the learned Sessions Judge has erroneously convicted and sentenced the accused persons. The prosecution has not been able to bring home guilt against accused appellants and they deserves to be acquitted from the offences charged. 20. In the result the appeals are allowed. The judgment and sentence passed by the Court below is set aside. The accused appellants Nek Ram, Rishipal and Bhulli are hereby acquitted from the offence under Section 302 read with 34 I.P.C. The appellant Nek Ram is on bail. He need not surrender. His bail bonds are cancelled and sureties discharged. The appellants Rishipal and Bhulli are in jail. They be released forthwith if not wanted in any other case. 21. A copy of this judgment be sent to the Chief Judicial Magistrate concerned for compliance. ————