JUDGMENT Honble Mrs. Poonam Srivastav, J.—This appeal has been preferred by a single appellant challenging the judgment and order dated 9.8.1982 passed by the IVth Additional Session Judge, Bijnor in Session Trial No. 122 of 1982 convicting the appellant under Section 307, I.P.C. and sentencing him to four years R.I. 2. Bail bonds were cancelled on 12.1.2007. Non bailable warrants were issued against the appellant and notices to the sureties was directed to be returned within four weeks. The Chief Judicial Magistrate, Bijnor was required to send a compliance report but the office reports dated 19.2.2007 and 22.8.2008 shows that there is no compliance report till date. 3. Sri Ankit Saran Advocate was appointed as Amicus Curiae on 13.11.2009. 4. The occurrence is alleged to have taken place in the intervening night of 21/22.6.1981 at 1.00 A.M. F.I.R. was lodged on the same day i.e. 22.6.1981 at 2.30 A.M. at Police Station Haldaur, District Bijnor situated at a distance of 9 miles. The injured in the incident is Diley Ram who is the first informant and was examined as PW-2. 5. In brief, the prosecution story as stated by the complainant Diley Ram PW-1 a resident of the same village is that both parties belong to the same family and before this occurrence, a dispute was going on between them over the land for RASTA. Sri Ram Saran Singh, Ex-Pradhan of the village reported the matter of that RASTA at police out-post of village Heempur, a Head Constable came to the village who settled the matter by giving 7 feet land to the accused after leaving 10 feet land of Rasta but the accused raised construction over 10 feet land of Rasta and left only 7 feet land for Rasta and this was the cause of grudge with the complainant. It is further said that before this occurrence one Sukhlal cousin of the complainant was murdered and Shivpal son of the complainant was implicated in the said murder. The relations of the complainant and the accused was strained on this count as well. In the intervening night of 21/22.6.1981 the complainant Diley Ram was sleeping on a cot near his tube-well which is at a distance of half mile from the village Ratanpur Khurd and his real brother Multan Singh was sleeping over the roof of the Kothri of the tube-well. In the intervening night of 21/22.6.1981 the complainant Diley Ram was sleeping on a cot near his tube-well which is at a distance of half mile from the village Ratanpur Khurd and his real brother Multan Singh was sleeping over the roof of the Kothri of the tube-well. At about 1.00 A.M. in the night, the complainant woke up on hearing some noise. He tried to get out of his cot. He saw the accused in his torch light standing armed with a pistol towards west of his cot. The accused Manohri Singh immediately fired a shot from his pistol on the complainant causing injuries in the chest and left arm of the complainant and then he ran away towards west of the tube-well. The complainant ran towards north shouting and screaming but he fell down at some distance. At that time his brother Multan Singh had also come down and two other villagers Chaman Singh and Mahender Singh arrived from the village. Thereafter Chaman Singh and Mahender Singh brought a tractor trolley from the village and took the injured complainant to police out-post Heempur for lodging the FIR but they were directed to report the matter at P.S. Haldaur and hence they went to P.S. Haldaur in the night where the complainant Diley Ram lodged the FIR of this occurrence as per Ex. Ka-1 on the basis of which a case under Section 307, I.P.C. was registered against the accused after 2.30 A.M. as per copy of G.D. At Ex. Ka-7. 6. Thereafter the injured Diley Ram was sent to PHC Haldaur for his medical examination through C.P. No. 54 Samaipal Singh. At PHC Haldaur his medical examination was conducted by Dr. S.K. Rastogi, M.O. P.H.C. Haldaur. Injury report of Diley Ram is Ex. Ka-2 and following injuries were caused to him as examined by Dr. S. K. Rastogi PW-3. Examined Sri Diley Ram aged about 46 years, s/o Sri Jai Ram Singh, R/o Village Ratanpur Khurd, P.S. Haldaur (Bijnor) at 3.15 A.M. on 22.6.81. B/B C.P. No. 54, Samay Pal Singh, P.S. Haldaur, Distt. Bijnor. M.I.:- Raised brown mole present over Right clavicle region outer side 2.5 cm inner from outer most end of Right clavicle. Examined Sri Diley Ram aged about 46 years, s/o Sri Jai Ram Singh, R/o Village Ratanpur Khurd, P.S. Haldaur (Bijnor) at 3.15 A.M. on 22.6.81. B/B C.P. No. 54, Samay Pal Singh, P.S. Haldaur, Distt. Bijnor. M.I.:- Raised brown mole present over Right clavicle region outer side 2.5 cm inner from outer most end of Right clavicle. Injuries:- (1) Gun shot wound (wound of entry):- one wound, oval over front of chest left side upper part 4 cm from left nipple at 11 O’clock position, 0.3 cm x 0 cm, edges inverted. No tattooing, clotted blood present. (2) G.S.W. (wound of entry): one wound, oval over outer side of left chest upper part, 7 cm from left nipple at 2 O’ clock position, 0.3 cm x 0 cm., edges inverted. No tattooing, clotted blood present. (3) G.S.W. (wound of entry): one wound, oval over front of chest Right side lower part 9 cm front Rt. nipple at 5 O’clock position 0.3 cm., x 0’3 cm., edges inverted. No Tattooing, clotted blood present. (4) G.S.W. (wound of entry): One wound, oval, over outer part middle at left Arm ‘3 cm. x ‘3 cm, 17 cm above left elbow joint, edges inverted, No tattooing bleeding present. (5) G.S.W. multiple wounds present over back at left forearm middle and lower part in area 12 cm x 5.5. cm over and just above left wrist joint. No tattooing, bleeding present on touch. Injuries kept under observation. Adv. (a) X-ray chest for injury No. (1) (2) and (3) for F.B. & any visoral injury. (b) X-ray Left Arm for No. (4) for F.B. & any bony injury. (c) X-ray Left forearm wrist joint for No. (5) for F.B. & any bony Injury. Referred to District Hospital, Bijnor for admission & Tt. Duration fresh. Caused by some fire arm object. Sd/- Illegible. 22.6.81 L.T.I. of Sri Diley Ram. Attested. Sd-/ Illegible. 22.6.81. Thereafter the injured was advised X-ray of his chest and left-arm X-ray was taken by Dr. S.M. Lal, Radiologist of District Hospital, Bijnor who issued X-ray report regarding the nature of his injuries as per Ex. Ka-6 and this report was given on the basis of X-ray plates Exs. 1 and 2. X-ray was performed by PW-4 Dr. Brij Mohan Sharma. 7. The matter was investigated by Sri Bhajan Lal Sharma, the then S.O. P.S. Haldaur. S.M. Lal, Radiologist of District Hospital, Bijnor who issued X-ray report regarding the nature of his injuries as per Ex. Ka-6 and this report was given on the basis of X-ray plates Exs. 1 and 2. X-ray was performed by PW-4 Dr. Brij Mohan Sharma. 7. The matter was investigated by Sri Bhajan Lal Sharma, the then S.O. P.S. Haldaur. He recorded the statements of the witnesses and went to the place of occurrence on 22.6.1981 where he was given the torch by son of the injured. He prepared a Sapurdginama which is on record Ex. Ka-3. Thereafter he prepared a site plan of the spot Ex. Ka-4, but before completing the investigation of the case he was transferred and further investigation was completed by his successor Sri B.M. Sharma who submitted charge sheet against the accused under Section 307 I.P.C. on 31.7.1981 Ex. Ka-6. 8. Heard Sri Ankit Saran at length on behalf of the appellant and learned A.G.A. for the State. 9. A number of arguments have been advanced. The F.I.R. is challenged and stated to be ante-timed. A number of contradictions have been pointed out in the statement of the injured, first informant and the Investigating Officer as well as the doctor. Manner of assault has also been disputed on the ground that according to doctor’s opinion, injuries could not have been caused as alleged by the prosecution and participation of the accused is challenged on a number of grounds. His false implication is emphasized on the basis of previous enmity and the place of occurrence is also disputed for want of any memo of recovery of blood stained earth, blood stained clothes or any mark of firing on the cot or anywhere nearby as there was no recovery shown by the Investigating Officer. 10. I proceed to discuss the argument of the learned counsel appearing as Amicus Curiae. 11. The F.I.R. is submitted to be ante-timed because the police station is situated at a distance of 9 miles. The injured has clearly admitted in his statement that he was taken to the hospital on a tractor and villagers took 20-25 minutes to get the tractor and shift the injured in another cot. 11. The F.I.R. is submitted to be ante-timed because the police station is situated at a distance of 9 miles. The injured has clearly admitted in his statement that he was taken to the hospital on a tractor and villagers took 20-25 minutes to get the tractor and shift the injured in another cot. He has also stated that the injured was lying after receiving injury on the ground for almost 20 minutes thereafter he was taken to chowki Heempur where he remained almost 5 minutes then the police accompanied him to the police station which was again situated at a considerable distance. In the circumstances, it is evident that the F.I.R. could not be lodged within 1 ½ hours. The next submission is that enmity is admitted. Diley Ram has stated in his examination-in-chief that there was enmity on account of passage on the land in dispute of 17 feet. Darogaji had tried to resolve the matter and ensure that the appellant left 10 feet passage but this was not acceptable and the appellant left only a passage of 7 feet whereas he had encroached 10 feet area. Besides, one Sukhlal first cousin of the complainant was murdered and son of PW-1Shivpal is an accused in the said murder case. The injured used to pressurise for a compromise which was not acceptable to the appellant. Murder had taken place prior to the incident and, therefore, the appellant has been falsely implicated in the incident which had occurred in the darkness of the night. No one had seen the assailants. Torch light mentioned by the prosecution is only an imagination since PW-1 has clearly admitted that the torch had fallen from his hands after he received injuries and he was not aware that where it fell. However, the Investigating Officer had prepared a memo of torch which was handed over by Shivpal, son of the injured. The Investigating Officer has admitted that he is not aware from where the torch was brought by Shivpal. Shivpal was not examined though he is a witness of recovery of torch. 12. The appellant in his statement under Section 313, Cr.P.C. has given out his age to be 68 years and he suffers from gout and also he is not able to see at night. He is also not able to walk properly. Shivpal was not examined though he is a witness of recovery of torch. 12. The appellant in his statement under Section 313, Cr.P.C. has given out his age to be 68 years and he suffers from gout and also he is not able to see at night. He is also not able to walk properly. The doctor has also admitted after seeing him in the Court that he is quite old. 13. Sri Ankit Saran has argued that torch was introduced subsequently only after realizing that there was no other source of light on the tube-well. It is the Investigating Officer who has stated that he had not recorded the statement of the injured at the police station whereas the injured submits that his statement was recorded by the Investigating Officer immediately after lodging of the F.I.R. So far the place of occurrence is disputed on the basis of the fact that no blood stained earth was found by the Investigating Officer though the injured had stated that he was lying down for almost 20 minutes and doctor has also stated that blood starts clotting after one hour. This also depends on the nature of injury. No blood was also found on the cot and it was for this reason another cot was introduced for taking the injured to the police station. Sri Saran has emphatically pointed out that once it is admitted that there was a cot already there, then was no occasion to shift the injured on another cot. Besides, the Investigating Officer has stated that he did not find any pellet, tikli or any other article exploded from the fire. The doctor PW-3 on cross examination has admitted that oval injuries caused to the injured cannot be caused if firing is resorted from an equal level. It will always be if firing is from a higher level on a person standing on the lower level or vise versa but in the instant case the injured had gone to the extent of admitting that he had got up from the cot and was standing at a distance of 4 feet from the accused at the time he opened fire and, therefore, manner of occurrence stands completely belied. There is yet another circumstance PW-2 other eye witness, brother of the injured has been disbelieved by the learned Session Judge. 14. There is yet another circumstance PW-2 other eye witness, brother of the injured has been disbelieved by the learned Session Judge. 14. I have perused the statement of PW-2 and agree with the finding of the learned Session Judge that he is not a reliable witness. Admittedly, there were a number of other witnesses of the village who had taken the injured to the police station on a tractor but none of them have come forward to depose in the witness box. Malkhan has admitted that he did not accompany his brother either to the police station or to the hospital. Taking all these circumstances cumulatively, false implication of the appellant who is definitely inimical to the injured and has an axe to grind against him, cannot be ruled out. 15. Learned A.G.A. has not been able to support the manner of assault and evidence of doctor who negates shooting from an equal level. Admittedly, all the injuries are oval and this itself is sufficient to negate the manner of assault and it creates a doubt specially where conviction is based only on a single testimony. No doubt, he is the injured person but I cannot accept his version in its totality as it was middle of the night occurrence had taken place at 1.00 A.M. while the injured was fast asleep. The shots were fired and only source is torch light which again creates doubt whether the injured had a torch or not. The reason for false implication as suggested by the counsel for the appellant can also not be ruled out. Shivpal son of the injured being an accused in a murder case is sufficient motive of false implication specially in a case where no one had seen the actual assailants and, therefore, the most convenient scapegoat was the appellant Manohri Singh. The injuries caused to Diley Ram PW-1 is not disputed as it is evident from the injury report duly proved by the doctor but the manner of assault casts a doubt on the correctness of the prosecution version as narrated in the F.I.R. as well as in the statement of the witness. There being no other corroborative evidence, I am of the view that the prosecution has failed to substantiate its case beyond doubt. 16. There being no other corroborative evidence, I am of the view that the prosecution has failed to substantiate its case beyond doubt. 16. Sri Ankit Saran has cited a decision of the Apex Court in the case of Jagdish Murav v. State of U.P. and others, (2006) 12 SCC 626 . This is a decision where a number of anomalies as well as flaw in the investigation was considered enough specially since there was admitted enmity between the parties to come to a conclusion that the appellant was falsely implicated. 17. In view of what has been stated above, I am not in agreement with the findings of the learned Session Judge and veracity of the story disclosed by the prosecution is highly doubtful. I am of the considered view that it is not safe to uphold the conviction of the appellant. 18. In the circumstances, the appeal is allowed. The judgment and order dated 9.8.1982 passed by the IVth Additional Session Judge, Bijnor in Session Trial No. 122 of 1982 is set aside. The appellant is acquitted. He need not surrender and the sureties stand discharged. ————