JUDGMENT Honble Mrs. Saroj Bala, J.—This criminal appeal is directed against the judgment and order dated 25.8.1982, passed by the IVth Additional Sessions Judge, Badaun, in S.T. No. 257 of 1981, whereby convicting the appellant along with two others for the offence under Section 302 with the aid of Section 34, I.P.C. and sentencing each of them to rigorous imprisonment for life. The appeal No. 2077 of 1982 preferred by co-accused Bhajan Lal and Mathuri against the impugned judgment and order has been dismissed as abated. 2. Briefly stated the prosecution case at the trial was that in between night of August 19/20, 1980 at about 2.30 a.m. accused-appellant armed with gun, co-accused Bhajan Lal armed with country made pistol and Mathuri carrying a lathi came to the gher of first informant where his cattle and mare were tied and said loudly that they were taking away the mare. On hearing this the first informant Babu Ram (P.W. 1) his son Chandrapal (victim) nephew Shreepal (P.W. 2) woke up and flashing torch light saw the accused persons with arms. One of them opened fire at his son Chandrapal but he had a narrow escape. Hearing the alarm witnesses lshwari (P.W. 3), Kishan Lal (P.W. 4) Harnam Singh and Viresh reached there carrying lathis and torch. Seeing the pressure mounting the accused persons went out of the gher. They were chased by Chandrapal and other witnesses. The accused-appellant and co-accused Bhajan Lal (since deceased) opened fire from gun and country made pistol at Chandrapal near the chaff store situated in the gher. The victim died on the way to the police station. 3. The written report (Ext. Ka-1) was got scribed by the first informant from Shiv Narain and was laid at P.S. Gunnaur at 5 a.m. on 28.8.1980. On the basis of written report chick F.I.R. (Ext. Ka-2) was prepared by C.P. Vidhya Ram Sharma (P.W. 7) and crime was registered at serial No. 4 of G.D. (Ext. Ka-3). 4. The inquest on the dead body was conducted at the police station by S.I. Rajeshwar Singh (P.W. 9). The inquest memo, challanlash, specimen seal photolash, letter to C.M.O. (Ext. Ka 5 to Ext. Ka 9) were prepared during the course of inquest. The sealed dead body was handed over to constable Saha Alam Beg (P.W. 6) and C.P. Jubed for transportation to the mortuary. 5. The inquest memo, challanlash, specimen seal photolash, letter to C.M.O. (Ext. Ka 5 to Ext. Ka 9) were prepared during the course of inquest. The sealed dead body was handed over to constable Saha Alam Beg (P.W. 6) and C.P. Jubed for transportation to the mortuary. 5. The autopsy on the dead body was conducted by Dr. Ravi Bhushan Abbhi (P.W. 8) on 20.8.1982 at 4.45 P.M. and following ante-mortem injuries were found : (i) Gun shot wound of entry 3 cm. in diameter lacerated and inverted margins present infront and middle of left thigh surrounded by 16 gun shot wounds of entry each of 1 mm. in diameter lacerated and inverted. These wound were within 2 cm. from above wound under the injuries there is haematoma of about 100 c.c. of blood. There was fracture of femur. A set of wads and 42 pellets were present in the wound. No blackening, tattooing present. (ii) 17 gun shot wound of entry each of 2 m.m. in diameter lacerated inverted margins present in an area of 10 cm. x 5 cm. on medial and interior part of left thigh upper part. (iii) Contusion 2 cm. x 2 cm. on back of middle of left forearm. 6. The cause of death was shock and haemorrhage due to injury No. 1. 7. The investigating officer (P.W. 9) prepared the site plan of the place of offence (Ext. Ka 10). He collected blood smeared and plain-earth from the spot under the memo (Ext. Ka 11) and empty cartridges under the memo (Ext. Ka 12). The torches of the witnesses were inspected and handed over to their custody and memo (Ext. Ka 13) was prepared. After interrogating the witnesses and completing other necessary formalities he submitted charge-sheet (Ext. Ka 14) against the accused persons. 8. The case was committed to the Court of sessions by the Vth Additional Munsif Magistrate Budaun. The accused-appellant and co-accused Bhajan Lal were charged for the offence under Section 302, I.P.C. whereas co-accused Mathuri was charged for the offence under Section 302 read with Section 34, I.P.C. All the accused having pleaded not guilty they were tried. 9. In order to substantiate the charges prosecution examined Babu Ram (P.W. 1), Shreepal (P.W. 2) lshwari (P.W. 3) and Kishan Lal (P.W. 4) as witnesses of fact. Hazari Lal (P.W. 5) was a witness to the recoveries made from the spot. 9. In order to substantiate the charges prosecution examined Babu Ram (P.W. 1), Shreepal (P.W. 2) lshwari (P.W. 3) and Kishan Lal (P.W. 4) as witnesses of fact. Hazari Lal (P.W. 5) was a witness to the recoveries made from the spot. Rest of the evidence was of formal nature. 10. The accused-appellant Ashok in his statement under Section 313, Cr.P.C. gave out that he had no relationship with co-accused Bhajan Lal and Mathuri nor had any animus with Chandrapal (victim). He had contested a case under Section 107, Cr.P.C. against Harnam Singh, Shukhlal and witness Shreepal. Harnam Singh is brother-in-law of Jugul Kishore. Jugul Kishore was an accused in the case of murder of Shivraj Singh. Mahipal brother of accused-appellant was complainant of the said case. The witness Shreepal was prosecuted in a case of assault on Shanti Devi and accused-appellant was doing pairvi of that case. Chandrapal (victim) was very close to Harnam Singh. For these reasons Harnam Singh got him falsely implicated in this case. 11. The trial Court placing implicit reliance on the eye-witness account as narrated by the witnesses (P.W. 1 to P.W. 4) recorded the finding of conviction. 12. We have heard Shri P.N. Mishra, learned counsel for the appellant, learned A.G.A. for the State and have gone through the trial Court record. 13. Challenging the finding of conviction learned counsel for the accused-appellant submitted : the accused-appellant was nominated as an accused by witness Harnam Singh as spoken by the witnesses (P.W. 2, P.W. 3, P.W. 4); the accused-appellant had no animus with victim or his father; in the First Information Report as well as in the statement motive was attributed to co-accused Bhajan Lal and Mathuri, both brothers; accused-appellant was not a relative of co-accused nor had any affinity with them; the accused-appellant has been falsely implicated at the behest of Harnam Singh to pressurise his family members not to prosecute and support the murder case of Shivraj Singh in which the Jugul Kishore the brother-in-law of Harnam Singh is an accused. 14. The learned A.G.A. supporting the finding of conviction argued that First Information Report was lodged with all promptitude. The eye-witnesses have supported the prosecution case and have assigned specific role of firing with gun to the accused-appellant. 15. 14. The learned A.G.A. supporting the finding of conviction argued that First Information Report was lodged with all promptitude. The eye-witnesses have supported the prosecution case and have assigned specific role of firing with gun to the accused-appellant. 15. In order to appreciate the contentions raised by the learned counsel for the accused-appellant it would be appropriate to analyse the prosecution evidence. 16. The witness Babu Ram (P.W. 1) father of the deceased stated that on the date of incident at about 2.30 a.m. he along with his son Chandrapal and nephew Shreepal was sleeping in his gher on separate cots. At the same time accused Bhajan Lal armed with country made pistol, accused-appellant Ashok armed with gun and Mathuri carrying a lathi came there and one of them exclaimed ‘Chandrapal I am taking away your mare’. The witness and his companions got up from the cots. Shreepal flashed torch light and accused Bhajan Lal opened fire at Chandrapal which did not hit him. After the firing of shot witnesses lshwari, Viresh and Harnam Singh reached at the spot and chased the accused. Chandrapal was ahead of all of them. When they reached near the chaff store (Bhusauri) accused Bhajan Lal with country made pistol and Ashok with gun opened fire at Chandrapal and caused injuries at his left thigh. He further stated that accused Bhajan Lal had crushed his sugarcane at his (witness’s) crusher (kolhu). The accused Bhajan Lal had paid sugarcane crushing charges five months after, threatening that he won’t let them live. The shot was fired from a distance of about six ft. while running away and both the shots were fired simultaneously. He denied enmity with accused Ashok. He refuted the suggestion that accused Ashok and Mathuri were named in the report at the behest of Harnam Singh. He deposed in the cross-examination that witnesses reached after the shot hit his son. 17. The witness Shreepal (P.W. 2) nephew of first informant admitted in the cross-examination that he as well as his son and Chandrapal were an accused in the case of assault on Shanti Devi and Bahadur Singh, brother of accused Ashok was a witness in that case. The accused Ashok was doing pairvi of that case. He admitted that Jugal Kishore was M.L.A. of his area and sister of Harnam Singh was married to Dalpat younger brother of Jugul Kishore. The accused Ashok was doing pairvi of that case. He admitted that Jugal Kishore was M.L.A. of his area and sister of Harnam Singh was married to Dalpat younger brother of Jugul Kishore. Shiv Raj Singh M.L.A. was murdered and Jugal Kishore was an accused in that case. The First Information Report of that case was lodged by Mahipal, brother of accused Ashok. He admitted that there was dispute between him and Ashok over a Shesham tree. The proceedings under Section 107, Cr.P.C. were instituted against him by Sukhpal and Harnam Singh. Shesham tree belonged to Sukhpal and Harnam. He deposed that Chandrapal chased the accused to a distance of 15-20 paces and he as well as Baburam being old persons followed him walking. At the same time a shot was fired. When shot was fired he saw the faces of Mathuri and Bhajan Lal. According to him he had not properly identified the accused Ashok. He had not seen the face of Ashok under the tree. Harnam Singh had named Ashok as an accused. 18. The witness lshwari (P.W. 3) supported the prosecution story in his examination-in-chief. He failed to withstand the test of cross examination. He deposed in the cross-examination that on hearing the sound of fire and catch-catch he ran away and reached near the tree and saw some persons fleeing away. Three persons were fleeing away and Chandrapal was behind them. They were at a distance of about 70 paces. At the same time he heard the sound of two shots of fire. He could not see the faces of the persons running away. Harnam Singh and Viresh and others reached after fleeing away of accused persons and there was discussion amongst them as to who were the assailants. Harnam said that Mathuri, Bhajan Lal and Ashok might be the assailants. He emphatically stated that he had seen the persons running from their back and had not seen their faces. 19. The witness Kishan Lal (P.W. 4) supported the prosecution case in the examination-in-chief. In the cross-examination he deposed that his gher is not situated near the place of offence and his fields existed quite far away. The witness was sleeping at the gher of Bhau situated at a distance of 50-60 paces from the gher of Chandrapal. He woke up on hearing the sound of fire and went to the gher of Chandrapal. In the cross-examination he deposed that his gher is not situated near the place of offence and his fields existed quite far away. The witness was sleeping at the gher of Bhau situated at a distance of 50-60 paces from the gher of Chandrapal. He woke up on hearing the sound of fire and went to the gher of Chandrapal. He saw three persons running away towards the western direction. Chandrapal was chasing those persons. He was at a distance of about 40-50 paces at the time he saw the back of persons running away. He could not see their faces. Babu Ram and Shreepal were present at the Chaubutra of their gher when the shots were fired at Chandrapal and were raising an alarm. They reached near Chandrapal after the assailants fled away. There was a discussion about the assailants and Harnam said that they might be Bhajan Lal, Ashok and Mathuri. 20. The eye-witnesses Shreepal (P.W. 2), Iswari (P.W. 3), Kishan Lal (P.W. 4) failed to withstand the test of cross-examination though they supported the prosecution story in their examination-in-chief. The witness Shreepal deposed that he had not properly seen the face of accused Ashok. Harnam had nominated the accused Ashok. The witnesses lshwari and Krishan Lal (P.W. 3 and P.W. 4) testified that they had seen the accused persons from their back while they were running and had not seen their faces. According to them Harnam Singh had suggested the names of Mathuri, Bhajan Lal and Ashok as assailants. The first informant Babu Ram (P.W. 1) an old man aged 75 years feigned ignorance about the involvement of Jugul Kishore Ex-M.L.A. in the murder of Shivraj Singh and that Dalpat, brother of Jugul Kishore was son-in-law of Sukh Lal and brother-in-law of Harnam Singh. The conduct of the witness (P.W. 1) in feigning ignorance about these facts amounts to suppression of truth and strikes at his credibility. It is true that near relations of a deceased person unhesitatingly name the real culprits without thinking of substituting them by others who may be inimical to him. Accused Ashok had no previous enmity with the first informant and the victim. The witness Babu Ram (P.W. 1) has admitted that Ashok had no enmity with him or his son. The motive was alleged against the accused Bhajan Lal in the First Information Report as well as in the statements. Accused Ashok had no previous enmity with the first informant and the victim. The witness Babu Ram (P.W. 1) has admitted that Ashok had no enmity with him or his son. The motive was alleged against the accused Bhajan Lal in the First Information Report as well as in the statements. The false implication of innocent persons with real assailants at the behest of an influential person is possible. The witnesses (P.W. 2, P.W. 3, P.W. 4) categorically stated that the accused Ashok was nominated by Harnam Singh. The testimony of a witness is to be read as a whole. The brother of accused-appellant Ashok being the first informant of the murder case of Shiv Raj Singh, M.L.A., against Jugul Kishore real brother of brother-in-law of Harnam Singh the nomination of accused-appellant Ashok by the witnesses in their examination-in-chief at the behest of Harnam Singh was quite possible. The trial Court failed to consider these discrepancies, inconsistencies and embellishments touching the very fabric of the prosecution evidence. The combined effect of these infirmities staring on the face of ocular account is that the prosecution has failed to establish the case beyond reasonable doubt against the accused-appellant Ashok and he is entitled to be acquitted. 21. In view of the foregoing discussion the appeal of accused-appellant Ashok is allowed and impugned judgment and order is set aside. The accused-appellant is acquitted of the charge under Section 302/34, I.P.C. He is on bail to which he need not surrender. His bail bonds are cancelled and sureties are discharged. 22. Certify the judgment to the lower Court within a week. The record of the case be also transmitted to the Court below immediately. ————