JUDGMENT Hon’ble Mrs. Poonam Srivastava, J.—Criminal Appeal No. 5968 of 2006, Shafaqat and Jabir v. State of U.P.; Criminal Appeal No. 5608 of 2006, Ishtekhar v. State of U.P.; Criminal Appeal No. 5443 of 2006, Jan Mohd. and Kadir v. State of U.P. and Criminal Appeal No. 5445 of 2006, Dilshad v. State of U.P. are all connected appeals arising out of common judgment passed by the Additional Session Judge, Prevention of Corruption Act, Meerut in Sessions Trial No. 940 of 1996 and Sessions Trial No. 1157 of 1996. All the appellants have been convicted and sentenced under Sections 302/149, I.P.C. to undergo life imprisonment and fine of Rs. 5000/- each. In the event of default, a further imprisonment of 4 months. They have also been convicted under Section 307/149, I.P.C. and sentenced to 7 years R.I. and fine of Rs. 2,000/- each. In the event of default, a further imprisonment of one month. They are further convicted under Section 148, I.P.C. and sentenced to two years R.I. and under Section 450, I.P.C., five years R.I. and also fine of Rs. 2000/- each. In case of default in making payment of fine, they shall further undergo 1-1 months simple imprisonment. 2. The occurrence is alleged to have taken place in the intervening night of 15/16.7.1995 at 3.00 a.m. in village Nagla Sahu, Police Station Bhawanpur, District Meerut. The first information was got registered by Niyaz Mohammad at Police Station Bhawanpur at 4.00 a.m. on 16.7.1995. The distance of the police station from the place of occurrence is said to be 4 kilometers East. 3. The story as narrated in the first information report by the prosecution is that on 16.7.1995 while Mohd. Iliyas son of Late Sakhawat Ali, his son Mohd. Yasin and his mother Smt. Khatoon were sleeping in their house. At the time of occurrence accused Jabir, Jan Mohammad, Shafaqat, Kadir, Ishtekhar, Dilshad armed with Katta entered the house of Mohd. Iliyas. They shot at Mohd. Iliyas and Mohd. Yasin with intention to kill and Mohd. Iliyas was killed on the spot. The neighbours heard the shots and they immediately arrived at the place of occurrence but the assailants ran away creating terror by making fire from their respective fire-arms. Iliyas. They shot at Mohd. Iliyas and Mohd. Yasin with intention to kill and Mohd. Iliyas was killed on the spot. The neighbours heard the shots and they immediately arrived at the place of occurrence but the assailants ran away creating terror by making fire from their respective fire-arms. The occurrence was witnessed in the electric and moon light by Rahis son of Shabbir, Pappu son of Ummed Ali, Hasrat son of Afsar Ali, Jarif son of Abdul and a number of nearby residents. The first information report was registered by Niyaz Mohammad at Police Station Bhawanpur which was registered at case crime No. 106 of 1995, Exb. Ka-1. The scribe of the first information report is Jamil Ahmad. Post mortem was conducted by Dr. M.C. Agrawal PW-3 and injured Yasin was examined by Dr. J.P. Agrawal PW-6, Hasrat is a neigbbour and examined as PW-2. Head Constable 125 Chandra Pal Singh who prepared chik and entered in the G.D. as PW-4, first Investigating Officer Sri Yogesh Pathak PW-5, second Investigating Officer Aibaran Singh has not been produced. Besides, the other witnesses who are mentioned in the first information report viz. Rahis, Pappu and Jarif have not been examined by the prosecution. The first informant Niyaz has also not come forward in the witness box to prove the first information report. 4. Sri Dilip Kumar, learned counsel for the appellants advanced a number of arguments. The first argument is that the first informant is not an eye-witness. He has not come forward to prove the first information report. The second argument is that the injured witness who has been examined as PW -1, was not interrogated by the police during investigation and the third argument is that there was no source of light. It is a night incident and admittedly there was enmity between the accused and deceased and since no one has seen the occurrence in the darkness of the night, the appellants have been falsely implicated. Besides, since every one was sleeping and it is a case of hit and run, none of the witness could recognize the actual assailants. It is a night incident and admittedly there was enmity between the accused and deceased and since no one has seen the occurrence in the darkness of the night, the appellants have been falsely implicated. Besides, since every one was sleeping and it is a case of hit and run, none of the witness could recognize the actual assailants. Learned counsel has placed the evidence of PW-1 who has come forward to prove the first information report which was read out to him and PW-1 Yasin who is an injured witness stated and proved the first information report by saying that he had dictated the entire incident to Jamil and the first information report is in the handwriting of Jamil, though the report was given at the police station by Ishrat and Niyaz Ahmad and further PW-1 admits that the Inspector had sent him for medical examination. Mohd. Yasin has admitted in his cross-examination that there was no electricity connection on the date of occurrence but he has tried to explain that he had borrowed the connection from the house of one Abdul Salam. Learned counsel has made a reference to the site plan at this point of time to substantiate his argument that the Investigating Officer has not shown house of Salam from where electricity connection is said to have been taken as well as no bulb has been shown in the site plan. He has also elucidated this fact from PW-I in cross-examination that Javed accused is son of Khan Shree Pradhan, real brother of Khan Shree Pradhan is also an accused. Jan Mohd. is an educated man and stays in Delhi but had denied the fact that he was in Delhi at the relevant date. Mohd. Yasin had also admitted that the other accused Safakat, Kadir, Ishtekhar and Dilshad are all from the family of previous pradhan. Khan Shree and all the accused were armed with Katta. Yasin had received injury in his left hand but he was never admitted in the hospital but he was treated in Lokpriya Nursing Home. However, there is no injury report from the Lokpriya Nursing Home on record. The injuries of Mohd. Yasin which are said to have been examined at 5.20 a.m. on 16.7.1995, are detailed herein below : Dated 16.7.1995 Time 5.20 a.m. Examined Yaseen aged about 17 years, S/o Iliyas, R/o Nagla Sahu, P.S. Bhawanpur, Distt. Meerut. However, there is no injury report from the Lokpriya Nursing Home on record. The injuries of Mohd. Yasin which are said to have been examined at 5.20 a.m. on 16.7.1995, are detailed herein below : Dated 16.7.1995 Time 5.20 a.m. Examined Yaseen aged about 17 years, S/o Iliyas, R/o Nagla Sahu, P.S. Bhawanpur, Distt. Meerut. B/B C.P. No. 470, at P.S. Bhawanpur, Distt. Meerut. M/I. Black mole on front of palm of Rt. hand. Injuries : (1) Gun shot wound of entry 6 cm. x 3 cm. x wound of exit (Injury No. 2) on front of Lt. Fore arm 14 cm above Lt. Wrist Joint. Margins and wound inverted, Blackening present on the spin around the wound. Bleeding present. Advised X-ray. (2) Gun shot wound of Exit 13 cm. x 5 cm. x wound of entry (Injury No. 1) on Back of Lt. forearm. 7 cm. above Lt. Wrist joint, margins of wound averted, Bleeding present. Advised X-ray. Opinion : Both Injuries are kept U.O. & Advised X-ray and are caused by discharge of some Fire-arm. Duration : Both Injuries are fresh. Pt. Refused for admission in Hospital. Attested. LTI 16.7.1995. of Yaseen Attested 16.7.1995 Mohd. Yasin had also stated that Niyaz Mohd. complainant had arrived at the scene of occurrence approximately after 5 minutes of the incident. 5. Sri Dilip Kumar has further emphasized while placing cross-examination of PW-1 that Niyaz Mohd. had contested the election of Pradhan against Khan Shree and lost. He has further admitted that he was at the place of occurrence for almost 45 minutes to one hour and thereafter the police had taken him to the doctor to get his injuries examined. The villagers who had arrived at the scene of occurrence had bandaged his injuries and at the time when the scribe of the report Jamil Ahmad was writing out the first information report, a number of people were present around him. He further admitted that he had not specified as to which accused fired at which of the inmates of the house. He further admits that Darogaji had recorded his statement after 22-23 days since he was not in a position to give statement, whereas the Investigating Officer has specifically stated while contradicting the statement of Yasin PW-1 that he had not recorded any statement of Yasin at any point of time during investigation. He further admits that Darogaji had recorded his statement after 22-23 days since he was not in a position to give statement, whereas the Investigating Officer has specifically stated while contradicting the statement of Yasin PW-1 that he had not recorded any statement of Yasin at any point of time during investigation. PW-2 Hasrat is witness who has clearly stated that he arrived at the scene of occurrence when the assailants were fleeing. He also belongs to the same family of the deceased and further admits that Niyaz Mohd. is his own Tau. Hasrat has admitted enmity with the accused Ishtekhar, Dilshad and Jabir and also that his uncle Akhtar was murdered six months prior to the present incident and Hasrat was also injured. 6. He further states that the accused are inimical on account of election of pradhan. Hasrat further admits that his house is at the back of the house of the deceased and there is open space in between the two houses. Both the houses are situated at about 150 paces. He got up after hearing the shots and after hearing hue and cry made by other nearby residents. He also admits that when he reached the house of the deceased, Iliyas was lying dead on his cot and no other accused were present there. It was Yasin who informed PW-2 that his father was shot at by Jabir and Shafaqat and also that Ishtekhar opened fire at Yasin. 7. Learned counsel has tried to lay emphasis on cross-examination of PW-3 Dr. M.C. Agrawal where he has admitted that the injuries could be caused to the deceased while he was standing and both the injuries were caused by a single shot. He further states that there is likelihood that the deceased was killed sometimes in the mid night i.e. 12 O’clock. Lastly learned counsel argued and emphasized on the statement of Investigating Officer where he has admitted that during investigation he has not made any attempt from the Electricity Department to ascertain that whether there was electric supply in the village or not. Sri Dilip Kumar has also placed the statement of PW-1 that there is no electric pole around or near his house. Sri Dilip Kumar has also placed the statement of PW-1 that there is no electric pole around or near his house. The Investigating Officer further admits that he has not tried to ask the witnesses regarding electricity connection, neither he has tried to find out that whether there is any electricity connection in the entire village or not. 8. We have heard learned counsel for the appellants and learned A.G.A. at length and given a careful consideration. Since Niyaz Ahmad, first informant is not an eye-witness and it has come in evidence that on the dictation of Yasin, the first information report was written out by Jamil Ahmad and Yasin was examined as PW-1. He has proved the first information report and has clearly stated that he recognized the handwriting of Jamil Ahmad and contents of the first information report which was read out to him in the Court and he admits that the contents are the same which he had dictated. In view of these circumstances, we do not feel that non-production of Niyaz Ahmad is fatal to the case, therefore, we are not inclined to give much importance to the first argument advanced by the counsel for the appellants. 9. It was argued next that there are certain other circumstances which appear on the face of it inconsistent with the prosecution version as well as the evidence adduced to prove its case. We cannot loose sight of the fact that the occurrence had taken place in the middle of the night. There is no source of light whatsoever. The so called electricity connection as propagated by the prosecution on the face of it, does not appear to be substantiated by any evidence and, therefore, does not inspire any confidence. The witness of fact PW-1 has admitted that there is no electric pole in the near vicinity of the house. The house from where PW-1 claims to have taken electricity connection is not shown in the site plan, not even any electric pole or bulb has been shown in the site plan. Besides, it was not ascertained by the Investigating Officer that in even a single house of the village had electricity connection. It is in these circumstances, we are unable to accept that there was electricity light at the time when the deceased was shot at. Besides, it was not ascertained by the Investigating Officer that in even a single house of the village had electricity connection. It is in these circumstances, we are unable to accept that there was electricity light at the time when the deceased was shot at. It is also a fact to be noticed that the time of occurrence as claimed by the prosecution, the inmates of the house including the deceased and injured, the nearby neighbours must have been fast asleep and after hearing shots they woke up and become agile to the situation, this would necessarily require some time to recognize the assailants. On the other hand, all the accused are highly inimical to the deceased as well as the witnesses and, therefore, possibility of false implication cannot be ruled out. In the instant case, if no one could recognize the actual assailants, the best option is to implicate inimical persons and we are not convinced that the prosecution has been able to establish its case beyond doubt and consequently confirm the judgment of the learned Session Judge. The presence of injured witness is circumstance which leads to a definite conclusion that he was present at the scene of occurrence but since he was not interrogated by the Investigating Officer during investigation and he has come to depose in the trial for the first time. We are hesitant to record a judgment of conviction and hold that the prosecution has been able to prove its case beyond doubt because of the presence of the injured witness. The injured was neither admitted in the hospital nor any supplementary injury report is on record. Further treatment that he claims to have received in a Nursing Home is also not established by any documentary evidence. In the circumstances, presence of injured witness cannot be said to be a conclusive evidence to record a judgment of conviction. In the circumstances, in the event, we eliminate the two witnesses of fact, there is no other independent witness, not even the witnesses whose names have been mentioned in the first information report and, therefore, it cannot be said that deposition of PW-1 and PW-2 is far from any doubt. It is not safe to uphold the conviction on the statement of these witnesses who are admittedly interested witnesses coupled with circumstances and reasons already detailed herein above. 10. It is not safe to uphold the conviction on the statement of these witnesses who are admittedly interested witnesses coupled with circumstances and reasons already detailed herein above. 10. In view of what has been discussed in the foregoing paragraphs of this judgment, we come to conclusion that the prosecution has not been able to establish its case beyond doubt. The accused are entitled to get the benefit of doubt and, therefore, the judgment of conviction dated 11.9.2006 passed by the Additional Session Judge/Special Judge, Prevention of Corruption Act, Meerut is hereby quashed. The appeals are allowed. The appellants are on bail. They need not surrender. ———