A. K. ROOPANWAL, J. This criminal appeal is directed against the judgment and order recorded by Shri R. A. S. Yadav, Additional Sessions Judge, Court No. 4, Ghaziabad whereby the appellants were held guilty and convicted in Sessions Trial No. 1090 of 2003, State v. Mukhtiar and Ors. , for the offence punishable under Section 302, I. P. C. read with Section 34, I. P. C. and each of them were sentenced to imprisonment for life and a fine of Rs. 5,000/- and in default of payment of fine further R. I. for six months. 2. The prosecution case as disclosed in the written report dated 25-3-1993 given by Naresh Pal at P. S. Babugarh, District Ghaziabad and registered at crime No. 93/93 under Section 307, I. P. C. is that in the morning of 25-3-1993, Mahipal, son of Dharamveer, the cousin brother of the complainant and Mahipals wife Prakashee were going to their fields on a buffalo cart. Ram Swaroop son of Sukhey, Tej Pal son of Narain and Dharmendra son of Om Pal were following the cart. As soon as the cart reached in front of the Chak Road of Ilias and others, accused Mukhtiar and Om Pal sons of Hari Singh and Navin son of Dharamveer appeared there with Tamanchas in their hands. They abused Mahipal, dragged him from the cart and fired upon him. This occurrence took place at about 9. 00 a. m. and was committed as the accused had enmity with Mahipal. 3. The injured Mahipal was taken to the police station, Babugarh where on the basis of the above written report, the F. I. R. Was lodged at 10. 15 a. m. on 25-3-1993 and an entry to this effect was made in G. D. No. 15 at the same time. 4. When Mahipal was being taken to the hospital at Babugarh, he succumbed to his injuries. 5. The investigation of the case was taken up by S. I. R. K. Chaudhary (P. W. 6 ). He recorded the statement of the scribe of the chik and the G. D. and came at the site of occurrence where he recorded the statement of the complainant and on his pointing out prepared the site plan, exhibit Ka-3 of the place of occurrence. He collected the plain and blood stained earth from there and prepared its memo. He recorded the statement of the scribe of the chik and the G. D. and came at the site of occurrence where he recorded the statement of the complainant and on his pointing out prepared the site plan, exhibit Ka-3 of the place of occurrence. He collected the plain and blood stained earth from there and prepared its memo. He got information in the village through constables Ajab Singh and Somveer Singh that the injured had died in the hospital at Hapur, hence, he came to the hospital where he prepared the inquest report of the dead- body alongwith the Naksha Laas, letters to C. M. O. , Specimen of seal and Chalan Laas. He got the dead- body sealed and send it for post-mortem through the aforesaid constables. 6. On 29-3-1993, accused Mukhtiar was arrested from whose possession Tamancha said to have been used in the incident and an empty cartridge were recovered. In this regard a case at crime No. 97/93 under Section 25 of the Arms Act was registered against Mukhtiar. He disclosed that the conspiracy to commit the murder was hatched by his father Hari Singh. On his information, Section 120-B, I. P. C. was also added in the case. On 1-4-1993 Hari Singh was arrested and his statement was recorded. On 3-4- 1993, the I. O. recorded the statements of the witnesses of the inquest report and also of those constables who had carried the dead-body for post-mortem. On 8-4-1993 and 14-4-1993, he recorded the statements of accused Om Pal and Navin respectively. On 14-4- 1993 on the pointing out of accused Om Pal a Tamancha alleged to have been used in the incident was recovered and its memo was prepared. 7. The I. O. recorded the statements of Smt. Prakashee, the wife of the deceased on 24-4-1993. After concluding the investigation, charge-sheet under Sections 302 and 120-B, I. P. C. was submitted against accused Mukhtiar, Om Pal, Navin and Hari Singh. 8. The case under Section 25 of the Arms Act was investigated by S. I. R. P. Sagar, who recorded the statements of the witnesses, prepared the site plan of the place of recovery and after investigation submitted the charge-sheet against Mukhtiar. 9. 8. The case under Section 25 of the Arms Act was investigated by S. I. R. P. Sagar, who recorded the statements of the witnesses, prepared the site plan of the place of recovery and after investigation submitted the charge-sheet against Mukhtiar. 9. The case of the accused persons under Section 302/120-B, I. P. C. and the case under Section 25 of the Arms Act against accused Mukhtiar were committed to the Court of Sessions on 2-6- 2003 by the then Judicial Magistrate, Hapur. 10. The Sessions Court framed a charge under Section 302 read with Section 34, I. P. C. against Mukhtiar, Om Pal and Navin, a charge under Section 120-B, I. P. C. against accused Hari Singh, Mukhtiar and Om Pal and a charge under Section 25 of the Arms Act against accused Mukhtiar. 11. All the accused pleaded not guilty to the charges and claimed to be tried. 12. The prosecution in order to prove the charges examined Naresh Pal, first informant as P. W. 1, who is not the eye-witness of the alleged occurrence. P. W. 2 Dharmendra and P. W. 3 Prakashee were examined as the so called eye-witnesses of the alleged occurrence. P. W. 4 Pratap Singh was examined as the witness of conspiracy. P. W. 5 is Dr. Hari Krishan Agrawal, who had conducted the post-mortem of deceased Mahipal. P. W. 6 S. I. R. K. Chaudhary conducted investigation. P. W. 7 H. C. 122 Paltoo Ram is the formal witness. 13. P. W. 1 Naresh Pal stated that the occurrence had taken place on 25-3-1993 at 9. 00 a. m. when Mahipal and Prakashee were going to their fields on a Buffalo Cart. Witnesses Tej Pal, Ram Swaroop and Dharmendra were following them. When the cart reached near the field of Alias, all the three accused namely Mukhtiar, Om Pal and Navin came out of the nearby Sugarcane field and after abusing Mahipal fired upon him. The fire opened by Om Pal was missed. The fire opened by Mukhtiar hit the deceased Mahipal Navin assaulted Mahipal with the butt of the Tamancha on his head. About three years before the occurrence Mukhtiar was shot at regarding which a case was in progress at Hapur Court in which he (P. W. 1) and Mahipal were accused. Due to this enmity, the occurrence was committed by the accused persons. About three years before the occurrence Mukhtiar was shot at regarding which a case was in progress at Hapur Court in which he (P. W. 1) and Mahipal were accused. Due to this enmity, the occurrence was committed by the accused persons. It was also said by the witness that the occurrence was seen by the wife of Mahipal namely Prakashee, Tej Pal, Ram Swaroop and Dharmendra. The information of the occurrence was given to him in village Bachharauta by Dharmendra on the basis of which he lodged report at police station Babugarh. The witness proved the written report exhibit Ka-1. 14. P. W. 2 Dharmendra stated that on 25-3-1993 at about 9. 00 a. m. he, Tej Pal and Ram Swaroop were going to the field of Ram Swaroop for the plantation of Sugarcane. Mahipal and Prakashee were going on a Buffalo Cart ahead of them. When the Cart reached near the field of Alias on the Chak Road, the accused appeared there who abused Mahipal. Accused Navin captured the collar of Mahipal and was dragging him from the Cart. When Mahipal could not be dragged, Navin assaulted on his head with the butt of Tamancha. Om Pal fired upon Mahipal with Tamancha, but it was missed. Then Mukhtiar fired upon Mahipal, which hit on his chest. Mahipal fell down from the Cart. On the instructions of Tejpal, he went to give information at the house of Mahipal. He returned with Naresh to lodge the report but in the way injured was found coming in a vehicle near Hanuman Temple from where all went to the police station. As the condition of Mahipal was serious, he was sent to Hapur Hospital where he was declared dead by the Doctor. 15. P. W. 3 Prakashee, the another eye-witness gave the same statement, which was given by P. W. 2. 16. P. W. 4 Pratap Singh stated that on 24-3-1993, he and Jagar were coming to their house at about 8. 00 or 8. 30 p. m. from village Upera. When they came near the house of Hari Singh, they heard voices. They saw that Navin, Mukhtiar, Hari Singh and Om Pal were talking together. A lantern was burning there. Hari Singh was saying that sufficient time has passed away and now it would be better to kill Mahipal. 00 or 8. 30 p. m. from village Upera. When they came near the house of Hari Singh, they heard voices. They saw that Navin, Mukhtiar, Hari Singh and Om Pal were talking together. A lantern was burning there. Hari Singh was saying that sufficient time has passed away and now it would be better to kill Mahipal. On the saying of Hari Singh, all others said that they would kill him within a day or two. 17. P. W. 5 Dr. Hari Krishan Agrawal conducted the autopsy on the dead-body of Mahipal on 26-3-1993 at 1. 30 p. m. at Mortuary Ghaziabad. He found that the deceased was about 26 years of age and about one day had passed away since the time of death. The deceased was of average built. The rigor mortis was present on the dead-body. The following ante-mortem injuries were found on the person of the deceased. (1) Fire-arm wound of Entry 2 cm. x 2 cm x chest cavity deep over left side front of chest 7 cm from (L) nipple at 11 Oclock position. Blackening, tattooing and scorching present around the wound. Underneath tissue lacerated (L) Lung and pleura lacerated and contused with wound of exit. (2) Fire-arm wound of exit 2 cm x 2. 25 cm over (L) side back of chest 11 cm below axilla at post axillary fold. (3) Lacerated wound 1 cm x 1 cm on back of skull midline 4 cm below top bone deep. (4) Abrasion 3 cm x 1. 5 cm (R) side face 2 cm below (R) eye. 3rd (L) rib fractured. 18. In the internal examination third left rib was found fractured, Left Lung and its membrance, Heart and its membrance were found lacerated. About 100 gms. of semi digested food was present in the Stomach. 19. The Doctor opined that the cause of death was shock and hemorrhage which had resulted due to ante-mortem injuries. The post-mortem was proved by the Doctor. 20. P. W. 6 is the Investigating Officer and whatever was done by him has been stated above. 21. P. W. 7 has stated that he does not know as to whether the case property of the present case is present in the Police Malkhana or not as 47 case properties to the year 1993 are missing. 22. The accused persons were examined under Section 313, Cr. 21. P. W. 7 has stated that he does not know as to whether the case property of the present case is present in the Police Malkhana or not as 47 case properties to the year 1993 are missing. 22. The accused persons were examined under Section 313, Cr. P. C. in which they took the case of total denial from the prosecution case. They did not lead any evidence in their defence. 23. The learned trial Court after hearing the parties and analysing the evidence on record convicted the appellants Mukhtiar, Ompal and Navin and each of them were sentenced to imprisonment for life and a fine of Rs. 5,000/- and in default of payment of fine further R. I. for six months for the offence punishable under Section 302, I. P. C. read with Section 34, I. P. C. 24. Accused Hari Singh, Mukhtiar and Ompal were acquitted of the charge under Section 120-B, I. P. C. and accused Mukhtiar was also acquitted from the charge under Section 25 of the Arms Act. 25. We have heard Shri S. P. S. Raghav, learned Senior Counsel assisted by Shri Anil Raghav, and Shri Satish Tayagi learned Counsel for the appellants and Shri R. K. Singh and Shri M. S. Yadav, learned A. G. A. for the State. 26. It is stated by the learned Counsel for the appellants that the trial Court has not properly appreciated the evidence on record and convicted the appellants merely on conjectures and surmises. There was no motive for the appellants to commit the murder rather the complainant and the witnesses have sufficient motive to falsely implicate the appellants. The eye-witnesses were not present at the time of alleged occurrence and their evidence was not worthy of credence and that P. W. 1, the complainant being inimical to the appellants had manipulated the whole episode. No independent witness was produced to prove the charge and that the deceased himself was a man of bad character and could have been eliminated by some person or persons other than the appellants. 27. To the contrary it is submitted by the learned A. G. A. that there was ample evidence on record to show that the accused- appellants were the actual persons who committed the murder. There was also sufficient motive for them to eliminate Mahipal. 27. To the contrary it is submitted by the learned A. G. A. that there was ample evidence on record to show that the accused- appellants were the actual persons who committed the murder. There was also sufficient motive for them to eliminate Mahipal. The testimony of the witnesses were sufficient to bring home the guilt of the appellants and that the trial Court was perfectly justified in convicting the appellants. 28. Regarding motive it is on the record that the deceased was facing trial in a Court at Hapur alongwith others for causing fire-arm injuries to accused-appellant Mukhtiar. This incident had taken place about three years before the occurrence of the present case. The witnesses had not been examined in this case by the time the present occurrence was committed. Thus it could be possible that in order to take revenge the accused Mukhtiar alongwith others would have eliminated Mahipal. In such a circumstance, this argument does not have any force that the appellants had no motive to commit the murder of Mahipal. 29. The learned Counsel for the appellants next submitted that the so called eye-witnesses P. W. 2 Dharmendra and P. W. 3 Prakashee could not be present at the time of the alleged occurrence and they are deposing before the Court just by imagination. 30. We have gone through the statements of P. W. 2 Dharmendra and P. W. 3 Prakashee. 31. P. W. 2 Dharmendra is said to be the eye-witness of the alleged occurrence and whatever has been stated by him before the Court in his examination-in-chief does not find support from his statement recorded under Section 161, Cr. P. C. Even this is not in the statement under Section 161, Cr. P. C. that for what purpose he was going at the time of alleged occurrence which gave him an opportunity to see as to what happened there. The witness is frank enough to admit that whatever was said by him in the Court was his first statement. Thus, in view of the fact that his deposition in the Court is not backed by his previous statement recorded under Section 161, Cr. P. C. this possibility cannot be ruled out that he is a tutored witness and is playing in the hands of the complainant and others. Thus, in view of the fact that his deposition in the Court is not backed by his previous statement recorded under Section 161, Cr. P. C. this possibility cannot be ruled out that he is a tutored witness and is playing in the hands of the complainant and others. If this would not have been the position then in all probabilities he would have narrated the whole incident to the I. O. in the same fashion as told by him before the Court. Not only this that the statement of the witness recorded in the Court does not find support from his previous statement under Section 161, Cr. P. C. the manner of occurrence as told by the witness is self contradictory. In the examination-in- chief he stated that the deceased received fire-arm injury on his chest when he was in the cart while in the cross-examination it was said that the deceased received injury when he was in a standing posture near the cart. This contradiction is sufficient to belie his presence at the spot. One more thing is also important to point out that he did not inform about the occurrence to anybody with whom he met in the way to the house of Naresh after the occurrence. This unnatural conduct is a pointer to belie that he witnessed the occurrence and thereafter went to inform the family members of the deceased. Thus, in view of the above, we are unable to endorse the view of the learned trial Court that P. W. 2 is a reliable witness and was present when the occurrence had taken place. 32. P. W. 3 Smt. Prakashee is the wife of the deceased and it is said that she was accompanying him at the time of occurrence. 33. It is a fact on record that she did not lodge the F. I. R. which would have been a natural conduct of this witness if she would have been present when her husband was murdered. To overcome this difficulty and to explain the lapse she stated that she had lost consciousness which she could regain after about a month. This fact is not at all believable and it cannot be imagine that due to the death of her husband she would not be in a position to regain consciousness for about a month. To overcome this difficulty and to explain the lapse she stated that she had lost consciousness which she could regain after about a month. This fact is not at all believable and it cannot be imagine that due to the death of her husband she would not be in a position to regain consciousness for about a month. Thus, we are satisfied that the factum of unconsciousness has deliberately been introduced so as to explain as to why she had not lodged the report. Her statement appears to be a development over the statement recorded under Section 161, Cr. P. C. as in material particulars her statement does not find support from her previous statement recorded by the I. O. She stated before the Court that her husband was abused by the appellants and accused Navin dragged him through his collar. She stated before the Court that the fire opened by Ompal was missed and the fire of Mukhtiar hit at the chest of her husband while such type of statements are not in Section 161 Cr. P. C. Thus, the absence of material and important description of the incident in her statement recorded under Section 161, Cr. P. C. breeds the possibility that whatever has been stated by her before the Court has been stated either due to tutoring or by imagination. In absence of her not lodging the F. I. R. also breeds this possibility that the complainant himself nominated this lady as a witness in the F. I. R. assuming that she would be made to depose as per version of the F. I. R. as and when required. Thus, in our view, the presence of the witness at the time of occurrence appears to be doubtful and implicit reliance was not safe to be placed upon her as done by the Court below. 34. So far as the statement of P. W. 1 Naresh is concerned, he is not the eye-witness of the occurrence. He has stated in his examination-in-chief that Dharmendra (P. W. 2) had informed as to how the occurrence had taken place. From the perusal of the F. I. R. it does not appear that Dharmendra had informed this witness about the occurrence. Thus, this fact is not believable that Dharmendra had informed this witness about the whole episode. He has stated in his examination-in-chief that Dharmendra (P. W. 2) had informed as to how the occurrence had taken place. From the perusal of the F. I. R. it does not appear that Dharmendra had informed this witness about the occurrence. Thus, this fact is not believable that Dharmendra had informed this witness about the whole episode. Not only this when no reliance can be placed on the statement of Dharmendra (as discussed above), there can be no valid reason to place reliance on those facts stated by this witness and alleged to have been narrated to him by Dharmendra. During cross- examination the witness took a turn. He deposed that the deceased Mahipal himself told him about the occurrence but this is a fact on record that this witness had not mentioned in the F. I. R. that occurrence was narrated to him by the deceased himself. This statement of the witness can also not be believed as it is evident from the medical report of deceased that he could not be in a position to speak. Thus, from the statement of this witness, it cannot be proved that occurrence was told to him by Mahipal. This witness has direct enmity with the accused as he was accused in the case of firing upon appellant Mukhtiar and in view of this enmity this possibility cannot be ruled out that he after knowing the murder of Mahipal by some unknown person or persons would have chalked out the F. I. R. himself due to his own grievance against the appellants and would have kept the wife of the deceased and Dharmendra as witnesses who were the persons of his own choice. 35. Thus, in view of the above discussion, we are not in agreement with the finding of guilt recorded by the learned trial Court against the appellants and consequently, the appeal deserves to be allowed. Appeal is hereby allowed. The judgment, order of conviction and punishment recorded by the learned trial Court against the appellants in Session Trial No. 1090/03, under Section 302 read with Section 34, I. P. C. are hereby quashed. The appellant Mukhtiar is said to be in jail. He shall be released forthwith, if not wanted in any another case and order to this effect be communicated to the C. J. M. concerned within three days. The appellant Mukhtiar is said to be in jail. He shall be released forthwith, if not wanted in any another case and order to this effect be communicated to the C. J. M. concerned within three days. The other appellants are on bail and they are not required to surrender. Their personal bonds and surety bonds are discharged. Appeal allowed. .