JUDGMENT Hon’ble Mrs. Poonam Srivastava, J.—Three different appeals have been filed against the judgment and order dated 16.1.2002 passed in Session Trial No. 723 of 1996. All the three appeals, we proceed to decide together by a common judgment. The three appellants have been convicted under Sections 302/34, I.P.C. and sentenced to undergo life imprisonment. Appellants Raju and Raja have been awarded 10 years R.I. under Section 307 read with Section 34, I.P.C. with fine of Rs. 2,000/-. Appellant Aas Mohammad has been convicted under Section 307, I.P.C. and sentenced to undergo 10 years R.I. with fine of Rs. 2,000/-. 2. According to the prosecution story, occurrence is alleged to have taken place on 13.6.1995 at 9.30 a.m. while the deceased Shabu alongwith injured Riyazuddin were taking their buffaloes for grazing in the jungle. When they reached in front of the house of Yusuf Gaddi, in Mohalla Ghasiyawada, they were attacked by the accused. The first informant, Imamuddin and Hafiz son of Wazir were following the victim and they had witnessed the occurrence. As soon as the deceased and Riyazuddin were near the turn in front of the house of Yusuf Gaddi, the accused armed with fire-arms arrived at the scene, accused Raja exhorted his two companions that this is an opportunity we were looking for to eliminate the two brothers. Raju son of Raja and Aas Mohammad son of Chunnu swished out Katta from their pocket and fired at both brothers with an intention to kill them. Shabu received injuries on his chest and died instantaneously, Riyazuddin received injuries on his right forearm. The First Information Report was lodged by Imamuddin, P.W. 1 on the same day i.e. 13.6.1995 at 10.15 a.m. at Police Station Sikandarabad, situated at the distance of three furlong east. 3. The prosecution claims that a number of close residents gathered at the scene of occurrence hearing the shots and saw the accused running away. The First Information Report was registered at case Crime No. 271 of 1995 under Sections 302, 307, 506, I.P.C. against all the three accused. Chik report is Exhibit Ka-12, which is entered in G.D. report No. 23 at 10.15 a.m. Copy of the said G.D. is Exhibit Ka-13. Investigation was taken over by S.I. M.P. Singh, P.W. 4, who prepared inquest Exhibit Ka-3 and thereafter sent dead-body with Constable Mohar Singh for post-mortem. Chik report is Exhibit Ka-12, which is entered in G.D. report No. 23 at 10.15 a.m. Copy of the said G.D. is Exhibit Ka-13. Investigation was taken over by S.I. M.P. Singh, P.W. 4, who prepared inquest Exhibit Ka-3 and thereafter sent dead-body with Constable Mohar Singh for post-mortem. Majrubi Chitthi was prepared for getting injuries of Riyazuddin examined. He was examined in the District Hospital Sikandarabad. Injury report is Exhibit Ka-14. 4. Post-mortem on the body of deceased Shabu @ Sahabuddin, was conducted on 13.6.1995 by Dr. P.K. Chaturvedi, P.W. 3. Following ante-mortem injury has been recorded in the post-mortem : “1. Gunshot wound 1 cm. x 1 cm. x chest cavity deep on right side of front of chest 2 cm. below right nipple at 4 O’clock position margins inverted and lacerated. No blackening and no charring (external wound) detected medically back-wards towards left scapula.” Dr. Sunil Kaboj, P.W. 6 who examined injuries of Riyazuddin, are also detailed hereinbelow : “1. L/W-04 (four cm.) x 1.5 cm. over Rt. hand palmer aspect to dorsal aspect medial edge 2 cm. above the Rt. thumb. 2. Black and brownish marks all around the wound and smell of gun powder and blood mixed. I Injury U.O. and advised X-ray Rt. hand.” 5. The prosecution examined only two witnesses of fact P.W. 1 Imamuddin, who is first informant and brother of the deceased. P.W. 2 Riyazuddin, who is also brother of the deceased and is alleged to have received injuries in the incident. P.W. 3 Dr. P.K. Chaturvedi, conducted autopsy on the body of the deceased. P.W. 4 S.I. M.P. Singh, is Investigating Officer. P.W. 5 Yash Pal Singh proved the First Information Report, chik report and its G.D. entry. P.W. 6 Dr. Sunil Kaboj examined injuries of the injured. No other witness was examined in support of the prosecution case. Defence has not examined any witness and has claimed to have falsely implicated on account of enmity. 6. Charge-sheet was submitted by the Investigating Officer after completing the investigation, under Sections 302, 307, 120-B, I.P.C. charge was framed against all the accused on 17.10.1997. 7. Shri Brijesh Sahai, learned counsel for the accused/appellants has advanced his arguments manifolds. He has challenged the place and time of occurrence and claimed it to be earlier than the time alleged by the prosecution. 7. Shri Brijesh Sahai, learned counsel for the accused/appellants has advanced his arguments manifolds. He has challenged the place and time of occurrence and claimed it to be earlier than the time alleged by the prosecution. He has also challenged presence of P.W. 1 at the scene of occurrence. Learned counsel for the appellants further submits that motive suggested by the prosecution is far-fetched one. There was not a single document brought on record to substantiate the motive as claimed by the first informant on the contrary, it has been brought to our notice that there were a number of persons, who had grudge against family of the deceased. The deceased was having hostile enemies. There were murder cases and cases of attempt to murder pending against the deceased and other members of the family. The appeal is pending in the High Court, therefore, it is very much possible that some enemies may have killed him during darkness of night and none had witnessed the occurrence. But since litigation was going on for the last 30-40 years, name of the appellants were mentioned in the First Information Report and that too after due deliberation and consultation. 8. Learned counsel for the appellants has laid emphasis that the First Information Report is ante-time and it was not lodged at the time when it is claimed by the prosecution. The evidence of P.W. 5 Yash Pal Singh is not admissible as it is secondary evidence and not proved and established in accordance with law. Also that independent witnesses though available in abundance but for the reasons best known, they have been withheld. Only interested witnesses have been examined though the prosecution claimed at the very first stage and also maintained it till evidence was recorded in the Court that independent witnesses were present who could have supported the case of the prosecution. 9. The counsel for the appellants has tried to impress upon us on the fact that P.W. 1 was not present at the scene of occurrence, therefore, he is not an eye-witness. Various reasons as propounded by the counsel for the appellants for his not being present are enumerated hereinbelow : (a) P.W. 1 has admitted that he is an advocate having good practice and the day of occurrence was working day. Various reasons as propounded by the counsel for the appellants for his not being present are enumerated hereinbelow : (a) P.W. 1 has admitted that he is an advocate having good practice and the day of occurrence was working day. (b) P.W. 1 admits that he practices on the revenue side, Court of Nayab Tehsildar and Tehsildar in Tehsil. Besides he also practices in the Court of S.D.M. and consolidation Court. There is a distance fairly about 2 to 2-1/2 kilometres between the two Courts. The functioning of the Court starts at 10.00 a.m. Besides, he is also a member of Nagar Palika and he gives an audience to the local public to hear their grievance at his residence in the morning. (c) Cross-examination of P.W. 1 has been placed before us to substantiate the fact that P.W. 1 and Hafiz did not accompany the deceased and his brother Riyazuddin on the fatal day. Two of them were walking at some distance behind the two brothers, (deceased and P.W. 2). It is also argued that though the assailant had enmity with the entire family but no attempt was made to cause even a single injury to P.W. 1, who claims himself to be just behind his two brothers. He admits that while he was trying to lift his brother Sabu, who had received grievous injuries, blood was oozing out. But there was no blood on his hands. He also states that the Investigating Officer had not disclosed the name of the assailants to the witness of inquest at the time when inquest was performed. (d) He has tried to give a plausible reason for going in the morning behind his two brothers, that he was going to Dargah as he used to go every day and that is why he was present at the scene of occurrence but this reason has been mentioned in the Court for the first time. He also admits that his brothers did not know that P.W. 1 was following them. (e) P.W. 1 has also stated that he had written the First Information Report at his seat in the Court campus in his own handwriting. He also admits that his brothers did not know that P.W. 1 was following them. (e) P.W. 1 has also stated that he had written the First Information Report at his seat in the Court campus in his own handwriting. There is yet another circumstances pointed out by the counsel for the appellants while placing the site plan that the Investigating Officer failed to show the point from where the first informant claims to have seen the occurrence and also distances between the deceased and the first informant. The place from where P.W. 1 was standing at the time of occurrence is completely missing in the site plan. In the light of the aforesaid submission, Sri Sahai, has stressed that P.W. 1 can only be termed to be a chance witness and not a natural witness, whose presence cannot be accepted. 10. Challenging the place of occurrence as claimed by the prosecution, it is submitted that the prosecution claims that several fires were made to terrorize the witnesses and other persons, who had arrived at the scene of occurrence. No Tikli, cartridge or Khokha etc. were found from the place of occurrence. The evidence led by the prosecution is that six fires were made but neither there is any recovery memo nor anything shown in the site plan to substantiate and support story of six fires. Besides, the most alarming flaw on the part of the prosecution was that though it claims that blood stain earth was recovered but it was not got examined by the chemical analyst to verify whether it was human blood and also compared with blood of the deceased. 11. Challenging the time of occurrence, learned counsel for the appellants has placed post-mortem report, and also cross-examination of the doctor as well as certain extracts of statement of eye-witnesses. He submits that the occurrence did not take place at 9.30 a.m. as claimed by the first informant but it was sometime in the wee hours of the morning or may be earlier, much before the deceased had not even eased out. This argument is on the basis of the fact that the doctor has reported stomach to be empty, small intestine having pasty food and gases, large intestine was full of factual matter. This argument is on the basis of the fact that the doctor has reported stomach to be empty, small intestine having pasty food and gases, large intestine was full of factual matter. In case the deceased and his brother were going with buffaloes for grazing them in the jungle, it can only be concluded that they were going for the days work and they will only start from the house after taking food and easing out. When large intestine or small intestine are full of faecal matter and gases, and the stomach is empty, admittedly he had not eaten anything. 12. The doctor was cross-examined on this point. He admits that stomach being empty, small intestine containing gases and pasty matter, large intestine also containing faecal matter and gases, and bladder was empty. Therefore, he has conclusively said that the deceased had taken food at least six hour before the time of death. 13. P.W. 3 has been examined on another point as well. Clothes that were taken from the body of the deceased were Vest, Kurta and Tehmad. The prosecution claimed that the deceased had received injuries while he was going with cattle but there was not a single hole either in the Vest or Kurta, which were sent alongwith dead-body to the doctor. Even inquest report does not mention any bullet hole in the clothes of the deceased. This goes to prove that clothes were deliberately put on the cadaver so that it cannot be doubted that he was going for days work without any apparel on his body. The doctor has also admitted in cross-examination that clothes sent alongwith dead-body in the sealed cover did not contain any hole. 14. Learned counsel for the appellant has also tried to demonstrate that the First Information Report is ante-time. One for the reason that no crime number has been mentioned on a number of documents such as Exhibit Ka-4, Ext. Ka-5 Photonash, Ext.-6 report sent to the Chief Medical Officer, Ext. Ka-7 report to the police line. Neither there is any mention of the name of the accused nor offences nor police station. One for the reason that no crime number has been mentioned on a number of documents such as Exhibit Ka-4, Ext. Ka-5 Photonash, Ext.-6 report sent to the Chief Medical Officer, Ext. Ka-7 report to the police line. Neither there is any mention of the name of the accused nor offences nor police station. It is also argued that special report, which is to be sent forthwith was sent only on 14.6.1995 and this is also a direct pointer towards one and only fact that the First Information Report was not in existence at the time when the police claimed to have registered it. In this continuation, evidence of P.W. 5 has been challenged. Ext. Ka-1 is in handwriting of Head Constable Rohtash Singh, who had made entry in the G.D. but since Rohtash Singh retired at the time when evidence was being recorded, P.W. 5 Yash Pal Singh had proved Chik etc. Previous Investigating Officer, Jaswant Singh, was also not examined and, therefore, these necessary documents were adduced as secondary evidence. 15. Learned counsel for the appellant has emphasized on Section 63 of the Evidence Act and submits that secondary evidence is admissible only when primary is not traceable or is missing. He has placed reliance to support this argument in the case reported in AIR 1947 PC 1, Chainchal Singh v. Emperor. He further submits that no positive evidence was led to show that Jaswant Singh was not traceable, merely stating that he has no knowledge about his whereabouts would not suffice requirement of Section 63 Evidence Act. Admittedly, he was in the force. He must have been drawing his pension. Therefore, P.W. 5 could not categorically admit that Rohtash Singh is dead and since his evidence is also in the form of secondary evidence, it cannot be accepted. 16. Learned counsel for the appellants submits that taking into consideration the fact that no crime number or police station etc. was mentioned on the relevant documents, which had accompanied the dead-body, the Investigating Officer had also not taken pains to get the blood stain earth examined by the chemical analyst. Besides, independent witness was not produced such as Hafiz, who was constantly present and was walking side by side with P.W. 1. The other independent witness could have been Yusuf Gaddi since the occurrence took place in front of his house. Besides, independent witness was not produced such as Hafiz, who was constantly present and was walking side by side with P.W. 1. The other independent witness could have been Yusuf Gaddi since the occurrence took place in front of his house. Therefore, it can safely be concluded that the Investigation was not only tainted but also it was deliberately dishonest. The evidence of P.W. 4 and 5, who had tried to prove documents as secondary evidence, also does not fulfil criteria of Section 63 of Evidence Act. 17. Learned counsel for the appellants while criticizing evidence of P.W. 2, submits that injuries which he had received on his right forearm, were not such which could establish and sufficient to conclude that there was any intention on the part of the accused to kill him. Specific case of the prosecution that they have now got an opportunity to eliminate both brothers, is not substantiated by nature of injuries caused to P.W. 2. It is also admitted by the prosecution that several shots were fired. It is nobody case that Riyazuddin tried to run away from the spot but no effort was made by the assailants even to cause grievous injuries to Riyazuddin. 18. Learned counsel for the appellants has expressed his doubt regarding his presence at the time of occurrence. It is also argued that statement of Riyazuddin was recorded under Section 161, Cr.P.C. after five days though P.W. 2 admits that he was available in the house all along. 19. On the basis of various circumstances pointed out earlier by the counsel for the appellants expressing doubt regarding presence of P.W. 1, he being an eye-witness, has stressed that in case P.W. 1 did not witness the occurrence then eye-witness account came only after lapse of five days when P.W. 2 was examined under Section 161, Cr.P.C. Once presence of P.W. 1 becomes doubtful, the entire prosecution story falls through like a pack of cards and, therefore, conviction of the appellants is not only doubtful but also without any evidence or such evidence, which does not lend any credence to the theory propounded by the prosecution. 20. 20. Learned A.G.A. has disputed the arguments advanced on behalf of the appellants and submits that occurrence being broad day light occurrence, witnessed by natural eye-witnesses followed by a prompt F.I.R. and inquest which was well within time and in close proximity to the lodging of the F.I.R., there cannot be an iota of doubt in the correctness of present case and narration in the First Information Report. He has also laid emphasis that there is no discrepancy between the statements of the two witnesses, which can materially effect the prosecution case. 21. Learned A.G.A. while placing reliance on a decision of the Apex Court, Jaishree Yadav v. State of U.P., (2006) 1 SCC (Cri) 160, has argued that there is no necessity to produce a number of witnesses even if the witnesses examined during the trial are interested or partisan. This by itself does not volunteer that evidence by interested witness is false specially in case the interested witness has withstood the test of cross-examination. There is no reason why his testimony should be discarded. Examination of a single interested witness is sufficient if all the other circumstances corroborate and support the prosecution case. 22. Another decision cited by the learned A.G.A. is State of U.P. v. Krishna Gopal and another, 1988 SCC (Cri) 928. The Apex Court has ruled that where eye-witnesses’ account is found credible and trustworthy, medical opinion pointing to alternative possibilities should not be accepted as conclusive. No doubt, in such case eye-witnesses’ account would require a careful independent assessment and evaluation for their credibility but it should not be made in the manner that the medical evidence be made the sole touchstone for test of credibility. 23. Next decision cited by the learned A.G.A. is Main Pal and another v. State of Haryana and others, (2004) 10 SCC 692 . This decision has been cited in support of the argument that only because P.W. 1 and P.W. 2 are related to the deceased, this itself will not nullify their evidence. It is open to the Court to critically analyse and scrutinize their evidence with caution and come to a conclusion that the same is credible and reliable. This view has been followed by a Division Bench of this Court in two connected appeals decided by a common judgment, Sajid v. State and Manager @ Azmat v. State, 2009(64) ACC 74. 24. This view has been followed by a Division Bench of this Court in two connected appeals decided by a common judgment, Sajid v. State and Manager @ Azmat v. State, 2009(64) ACC 74. 24. We have carefully considered arguments advanced by both the parties and decision relied upon by the respective counsels. First and foremost question to be decided is that what was the motive which led the appellants to commit crime. The genesis of any crime especially one like murder, which is the motive or cause for committing the crime is very important factor, which cannot be overlooked, in the present case, motive for the commission of crime is litigation between the accused and family of the first informant, which started from the Court of S.D.M. and is now at its fag-end pending before the Supreme Court. Litigation has been continuing since last 30-40 years but it has come in evidence that no attempt was ever made by the accused to kill them. Though litigation was continuing for almost 30-40 years but not even a single incident took place. No Marpit or any attempt on the life of the litigating parties have been made. This fact has been admitted by P.W. 2 in his cross-examination. It is not a case that on account of civil litigation parties have continuously made attempt to eliminate either of them. There is no evidence by the prosecution that any First Information Report or criminal complaint was ever lodged against the appellants. Therefore, motive suggested for commission of murder does not appear to be an immediate provocation, which would flare up the accused to such an extent, which would lead to elimination of family members of the litigating parties. Admittedly, the litigation has now reached almost at its conclusion and is pending in the Apex Court, since nothing had happened all these years, the motive suggested does not inspire confidence. If we accept the prosecution version that civil litigation was cause of murder, then we cannot overlook the fact that other brother, P.W. 1, who is an Advocate in the revenue side and obviously the brain behind civil litigation would have been spared. 25. If we accept the prosecution version that civil litigation was cause of murder, then we cannot overlook the fact that other brother, P.W. 1, who is an Advocate in the revenue side and obviously the brain behind civil litigation would have been spared. 25. Another circumstance, which we notice in the present case is that other brother Riyazuddin (P.W. 2) did not attempt to run away from the scene where several shots were fired but there was no attempt whatsoever to cause any grievous injuries to him or to eliminate him. These circumstances itself belies the intention of the accused as narrated in the First Information Report that they were looking for an opportunity to eliminate the two brothers on account of long standing grudge due to on going civil litigation since last 30-40 years. 26. In the circumstances, we are of the view that the motive suggested is too weak and not sufficient to lead to commit such a crime. However, it is also settled law that where there is an eye-witness account, motive should not be given importance of such magnitude that the entire prosecution story can be thrown out only because motive suggested by the prosecution appears to be far-fetched and not good enough reason for commission of crime. But it is also settled that if a definite motive is propagated by the prosecution then it has to be proved and substantiated by leading clinching evidence. 27. We now proceed to examine credibility of witnesses and analyse on the basis of arguments advanced on behalf of the appellants. Presence of P.W. 1 as well as P.W. 2 is challenged on a number of grounds. Before we proceed to probe their evidence, it is necessary to consider that why Hafiz was not produced and examined on behalf of the prosecution though prosecution claims that all along P.W. 1 and Hafiz were together and walking side by side at the time of incident. The Investigating Officer stated in his examination-in-chief that on the date of occurrence, he had interrogated Imamuddin and Hafiz. The Investigating Officer has also admitted that he had recorded statement of other villagers namely Yusuf, Janu, Islam, Farooq, Sahabuddin and Inder. The name of Islam alone was mentioned in the charge-sheet but he was also not produced during trial. No reason has been given by the Investigating Officer for withholding them. The Investigating Officer has also admitted that he had recorded statement of other villagers namely Yusuf, Janu, Islam, Farooq, Sahabuddin and Inder. The name of Islam alone was mentioned in the charge-sheet but he was also not produced during trial. No reason has been given by the Investigating Officer for withholding them. Once the prosecution has admitted that independent witnesses were available and their statements were recorded by the Investigating Officer under Section 161, Cr.P.C. why were they not examined. Only two witnesses of fact were produced in the Court. The two witnesses happen to be brothers of deceased. We shall scrutinize their testimony with care and caution since they are interested witnesses. A number of discrepancies have been pointed out by the counsel for the appellants. The reason why P.W. 1 was following his brother on the fatal day is that he was going to Dargah as usual and thereafter he would go to the Court. P.W. 2 has admitted that he did not know that his brother and Hafiz were following him. He also admits that he had not seen Imamuddin and Hafiz before shots were fired. So far reason for presence of P.W. 1 given before the Court in his cross-examination that he was going to Dargah, was neither mentioned in the First Information Report nor in the statement under Section 161, Cr.P.C. P.W. 1 has admitted that he did not think it essential to state this fact before I.O. while he was interrogated under Section 161, Cr.P.C. 28. Learned counsel for the appellants has emphatically argued to demonstrate before us that since there is a clear admission by P.W. 1 that he was not accompanying his brothers and did not come out of the house with them but he saw his brothers going alongwith the cattle while going to Dargah and therefore, his two brothers did not know that P.W. 1 is following them. This makes it all the more essential to examine presence of P.W. 1 on the scene of occurrence. His presence on the scene does not appear to be natural and normal conduct. 29. We are in agreement with the learned counsel for the appellants that at the maximum he could be termed to be a chance witness and if that be so, his presence has to be examined with circumspection as he happens to be own brother and interested witness. 30. 29. We are in agreement with the learned counsel for the appellants that at the maximum he could be termed to be a chance witness and if that be so, his presence has to be examined with circumspection as he happens to be own brother and interested witness. 30. On a close scrutiny of his statement and cross-examination, we find that there are certain facts which do not fit in the slot of events as narrated by P.W. 1. We find it difficult to believe that he was present, following the deceased and injured and was walking in close proximity without the knowledge of the deceased and P.W. 2 and was in a position to give a detailed eye-witness account as given in his statement before the Court as well as in the First Information Report. Firstly, P.W. 1 admits that he being a member of Nagar Palika gives audience to the public in the morning. This he would do naturally before the Court hours. Thereafter he would go to the Court. It is also admitted by him that the police station was at the distance of 250 to 300 paces but he did not call any police from police station. Neither he went straightaway to the police station but on the contrary he had written out the First Information Report sitting on his seat in the Court. This appears to be very unnatural and out of the normal behaviour. If one brother was killed and other brother had received injuries, P.W. 1 would go all the way to the Court and write out the First Information Report on his seat instead of going to police station or take the injured to the hospital. 31. The only conclusion we can arrive at is that P.W. 1 was already in the Court when he received information about the incident or for reasons best known, the actual fact is not revealed. It is a strange behaviour on the part of the real brother, who happens to be an advocate and also a member of Nagar Palika and, therefore, is conscious of the consequences of any flaw on his part to choose not to call the police immediately instead went to the Court alongwith injured brother leaving the dead body on the road only to write out the F.I.R. 32. P.W. 2 has admitted that he had accompanied his brother and he was with him when the First Information Report was written but he had not told anything to his brother about the incident. Therefore, both the brothers had gone to the police station and again came back to the place of occurrence after sending P.W. 2 for medical aid alongwith Majrubi Chitthi. The series of events as narrated appear to be a little out of normal human behaviour. In similar situation, the Apex Court in the case of State of Punjab v. Sucha Singh and others, 2003 SCC (Cri) 856, ruled that while appreciating the evidence, unnatural conduct of eye-witness cannot be overlooked. 33. We are conscious that it requires a thorough analysis of the testimony of the two brothers minutely and with caution since they are interested witnesses before we can hold the appellants guilty. The evidence should lead credence vis-a-vis other circumstances of the case, since the appellants have also challenged the time and place of occurrence. In the case at hand we have already seen that the first informant had neither gone to the police station straightaway nor accompanied the injured witness to the hospital but on the contrary behaved in a manner which cannot be said to be normal. 34. Similarly in the case of State of Punjab v. Sucha Singh (supra), the Apex Court discarded the testimony of P.W. 4 and P.W. 5 only because the behaviour of the witnesses was inherently improbable and it was difficult to accept their testimony. 35. This Court in the case of State of U.P. v. Puttu Lal and others, 2005(52) ACC 615, held that where evidence suffers from inherent improbabilities and, therefore, implication of the accused falsely cannot be ruled out. The facts and circumstances of the case at hand is somewhat similar and, therefore, we propose to examine the evidence using the same yardstick. 36. No doubt, P.W. 2 is an injured witness, therefore, his presence is guaranteed but not its truthfulness. Admittedly, statement of P.W. 2 was recorded under Section 161, Cr.P.C. after five days, his injuries are not such that he was not in a position to give his statement. He admits that he was present in his house all along. 36. No doubt, P.W. 2 is an injured witness, therefore, his presence is guaranteed but not its truthfulness. Admittedly, statement of P.W. 2 was recorded under Section 161, Cr.P.C. after five days, his injuries are not such that he was not in a position to give his statement. He admits that he was present in his house all along. There is no supplementary medical report to substantiate that his condition was grievous coupled with the fact that no attempt was made by him to run away when shots were fired at his brother. Neither he made any effort to save himself. This is also true for P.W. 1 that he stood as a mute spectator and no effort was made to intervene, on the other hand, the prosecution asserts that six fires were fired by the accused but all the fires were made with a view to terrorize the witnesses. Though motive attributed is that they had come to eliminate the family members on account of on going civil litigation. Only a single injury was received by Riyazuddin, P.W. 2 on his forearm. So far P.W. 1 is concerned, no attempt whatsoever was made to harm him. So far the testimony of P.W. 1 and P.W. 2 are concerned, all these circumstances taken together do not inspire confidence. Moreover, none of independent witness has come forward to support the prosecution case though their presence at the scene is not disputed. 37. In the present case, after examining the evidence and taking into consideration the arguments advanced on behalf of the appellants as well as various discrepancies pointed out by the counsel for the appellants, we are in agreement that the First Information Report, which is claimed to be a first person account, is not totally reliable and above board. The statement of P.W. 2 can also not be accepted merely because he had received injuries. Injury on the forearm of P.W. 2 is apparently superficial. No supplementary medical report is on record and, therefore, assertion that injury was caused to him with an intention to eliminate him, stands negated. 38. Lastly, we are also to examine the challenge put forward regarding time of occurrence on the basis of post-mortem report. Injury on the forearm of P.W. 2 is apparently superficial. No supplementary medical report is on record and, therefore, assertion that injury was caused to him with an intention to eliminate him, stands negated. 38. Lastly, we are also to examine the challenge put forward regarding time of occurrence on the basis of post-mortem report. Since we are of the view that eye-witness account of P.W. 1 and P.W. 2 is not of such sterling quality and unimpeachable, it becomes all the more necessary to examine that the medical evidence supports at least the time of occurrence as alleged by the prosecution. We find that stomach is empty, small intestine contains pasty matter and gases and large intestine is completely full of faecal matter, which points out to only one conclusion that the deceased had not eased out. The doctor has also admitted in his cross-examination that the deceased had taken food almost six hours before the death. If we accept the prosecution version that Sabu died at 9.30 a.m. then he had taken food at about 3.30 a.m. in the night. This is a very unnatural conduct and unless some reason was given by the prosecution to accept this abnormal behaviour, we have no option but to arrive at a contrary finding. If no food was taken by the deceased in the morning then necessary conclusion is that he had taken dinner on the previous night and death occurred sometime in the middle of night or early hours of 13.6.1995. No other explanation can be conceived explaining the contents of the stomach, small intestine and large intestine. 39. We are constrained to believe this theory on account of the reason that consistent case of the prosecution is that he had received fire-arm injuries while he was going to graze his cattle in the jungle at 9.30 a.m. It has also come in evidence that the buffaloes were milked at 6.30 a.m. Thus once again the stomach contents as well as position of small and large intestine does not tally and subscribe to natural human behaviour. 40. The Vest, Kurta and Tehmad were sealed in the bundle by the Investigating Officer, which was sent alongwith dead body. The doctor admits in his cross-examination that there was no hole either in the Vest or Kurta. 40. The Vest, Kurta and Tehmad were sealed in the bundle by the Investigating Officer, which was sent alongwith dead body. The doctor admits in his cross-examination that there was no hole either in the Vest or Kurta. The deceased had received injuries on his chest and, therefore, shots would have caused holes in his clothes which he was wearing. Necessary conclusion is that he was not wearing anything and this is possible while he was sleeping bare-chested in the month of June. It is very natural that in villages people are prone to sleeping only in their Tehmad or underwears since there is no electricity. The plausible conclusion is that someone had fired at him and caused his death while he was sleeping. It has come in evidence and also admitted by the witnesses that he was involved in a number of criminal cases including murder case and appeal is pending in the High Court. Therefore, it cannot be ruled out that offence was committed by one of his enemies. No one has seen the occurrence but since the litigation was going on, it is good enough reason to name the appellants as accused or on suspicion. 41. The Apex Court in the case of Deepak Kumar v. Ravi Virmani and another, 2002 SCC (Cri) 470, has ruled that multiplicity of the witnesses is not necessary but what is essential that their testimony should be trustworthy and inspires confidence in the mind of the Court. Extract of paragraph 30 is quoted below for ready reference: “It is not that multiplicity of witnesses would improve the situation neither we ought to be understood to hold that corroboration from independent witnesses stands out to be a mandatory requirement—witnesses though be interested can be relied upon provided, however, the evidence available on record is trustworthy and creates a confidence in the mind of the Court that the scrutiny entails only pointing out of commission of an offence by the accused persons and that scrutiny in totality leads to an inevitable conclusion of the guilt of the accused.” 42. The Apex Court in the case of Meharaj Singh (L/Nk.) v. State of U.P., 1994 SCC (Cri) 1390, held in paragraph 15 as follows : “The alleged eye-witnesses are undoubtedly deeply interested in the prosecution but that by itself cannot be a ground to discard their testimony. The Apex Court in the case of Meharaj Singh (L/Nk.) v. State of U.P., 1994 SCC (Cri) 1390, held in paragraph 15 as follows : “The alleged eye-witnesses are undoubtedly deeply interested in the prosecution but that by itself cannot be a ground to discard their testimony. It, however, certainly puts this Court on its guard to scrutinise their evidence more carefully and keeping in view their unnatural conduct, as noticed above, it appears to us that none of the alleged eye-witnesses had actually seen the occurrence and they were introduced as eye-witnesses after thoughtful deliberations, and consultations. It appears, that since it was a blind murder, the appellants have been roped in on account of misguided suspicion because of the previous enmity. Our independent analysis of the evidence on the record coupled with the infirmities which we have noticed above has created an impression in our minds, that the prosecution has not been able to bring home guilt to either of the appellants beyond a reasonable doubt. The trial Court was, therefore, right in acquitting them and the High Court even after noticing the infirmities, in our opinion, fell in error in convicting the appellants. The reasons given by the High Court, to set aside the order of acquittal do not commend to us. They are neither sufficient nor adequate or cogent much less compelling.” 43. The Apex Court in the case of Bhimapa Chandappa Hosamani and others v. State of Karnataka, (2007) 1 SCC (Cri) 456, held in paragraph 24, extract of which is quoted below for ready reference : “This Court has repeatedly observed that on the basis of the testimony of a single eye-witness a conviction may be recorded, but it has also cautioned that while doing so the Court must be satisfied that the testimony of the solitary eye-witness is of such sterling quality that the Court finds it safe to base a conviction solely on the testimony of that witness. In doing so the Court must test the credibility of the witness by reference to the quality of his evidence. The evidence must be free of any blemish or suspicion, must impress the Court as wholly truthful, must appear to be natural and so convincing that the Court has no hesitation in recording a conviction solely on the basis of the testimony of a single witness.” 44. The evidence must be free of any blemish or suspicion, must impress the Court as wholly truthful, must appear to be natural and so convincing that the Court has no hesitation in recording a conviction solely on the basis of the testimony of a single witness.” 44. The Apex Court in the case of Hem Raj and others v. State of Haryana, 2005 SCC (Cri) 1646, held in paragraph 9 as follows : “Non-examination of independent witness by itself may not give rise to adverse inference against the prosecution. However, when the evidence of the alleged eye-witnesses raises serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witness Kapur Singh, would assume significance. This Court pointed out in Takhaji Hiraji v. Thakore Kubersing Chamansing : (SCC p. 155, para 19) “[I]f already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non-examination of such other witnesses may not be material. In such a case the Court ought to scrutinise the worth of the evidence adduced. The Court of facts must ask itself-whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the Court. If the answer be positive then only a question of drawing an adverse inference may arise. If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable in the Court can safely act upon it, uninfluenced by the factum of non-examination of other witnesses. In the present case we find that there are at least 5 witnesses whose presence at the place of the incident and whose having seen the incident cannot be doubted at all. It is not even suggested by the defence that they were not present at the place of the incident and did not participate therein.” 45. We have considered the prosecution case from every angle and examined the evidence in detail. Reasons have already been detailed that we are not able to accept the prosecution case not only for want of corroboration from independent witness but also eye-witness’s account given by P.W. 1 and P.W. 2 could not withstand the scrutiny. We have considered the prosecution case from every angle and examined the evidence in detail. Reasons have already been detailed that we are not able to accept the prosecution case not only for want of corroboration from independent witness but also eye-witness’s account given by P.W. 1 and P.W. 2 could not withstand the scrutiny. In view of unnatural conduct as noticed above, it is apparent that the alleged eye-witnesses had not actually seen the occurrence. The time of occurrence does not tally. It appears that since it was a blind murder, the appellants have been roped in on account of misguided suspicion because of continuing litigation. The prosecution has not been able to bring home guilt of the accused. The infirmities in the prosecution case are many and, therefore, testimony of eye-witnesses cannot be said to be of sterling quality. We do not find it safe to record the judgment of conviction. The evidence is not unblemished and does not appear to be wholly truthful. For these reasons, we set aside the judgment and order dated 16.1.2002 passed by the Additional District and Sessions Judge/F.T.C., Bulandshahar and acquit the appellants. The appellants are languishing in jail since 17.6.1995. They shall be released forthwith. The appeals are accordingly, allowed. ————