JUDGMENT Honble Mrs. Poonam Srivastav, J.—The instant appeal arises out of Sessions Trial No. 1239 of 1999, State v. Mitrapal and four others. The present two appellants were sent up for trial along with co-accused Mitrapal, Brahmpal and Sanjay. These three co-accused were acquitted under Sections 148, 302 read with 149, IPC and Section 307 read with 149, IPC The present two appellants have been convicted and sentenced to undergo life imprisonment under Section 302, IPC and a fine of Rs. 5,000/- each. In default of payment of fine, six months simple imprisonment. The accused Subhash and Mitrapal were also tried for an offence under Section 25 Arms Act after the police had shown recovery of one country made pistol of 12 bore and 2 cartridges of 12 bore from accused Mitrapal and one country made Tamancha and one cartridge of 12 bore from Subhash. Recovery was disbelieved and appellants Subhash and co-accused Mitrapal were acquitted under Section 25 Arms Act. 2. The occurrence is alleged to have taken place on 20.7.1999 at 3.15 p.m. near field of Buchcha Singh, resident of Bhikkanpur. According to F.I.R., a written report was given at the police station Sarsawa, District Saharanpur on the same day i.e. 20.7.1999 at 17.30 hours. The police station is situated at a distance of six kilometres from the place of occurrence. The report was lodged by PW-1 Jhandu Singh. 3. Two persons namely Tejpal and Sushil both sons of Jhandu Singh PW-1 died in the incident. Post-mortem on the body of two deceased was performed by PW-4 Dr. V.K. Bhargava on 21.7.1999, the two post-mortem reports are Ex. Ka-2 and Ka-3. Ante-mortem injuries of the two deceased are detailed herein below : Ante-mortem injuries on the body of the deceased Tejpal 1. Gun-shot wound of entry 2 cm. x 1.5 cm. neck cavity deep, left side of neck 8 cm. below Lt. ear. Margins inverted echymosed. 2. Gun-shot wound of exit 3.5 cm. x 2.5 cm. Rt. side of neck 7 cm. below Rt. ear. Margins everted and communicating to injury No. 1. 3. Lacerated wound 16 cm. x 14 cm. cranial cavity deep Rt. side head behind Rt. ear on head. Skull bones partially missing, brain matter coming out. Parietal, Temporal and occipital bone broken into pieces. Ante-mortem injuries on the body of the deceased Sushil. 1. Gun-shot wound of entry 1 cm. x 1 cm. 3. Lacerated wound 16 cm. x 14 cm. cranial cavity deep Rt. side head behind Rt. ear on head. Skull bones partially missing, brain matter coming out. Parietal, Temporal and occipital bone broken into pieces. Ante-mortem injuries on the body of the deceased Sushil. 1. Gun-shot wound of entry 1 cm. x 1 cm. x neck cavity deep, ahead of neck 2 cm. above supra stenal margins. Margins inverted and echymosed. 2. Gun-shot wound of exit 4 cm. x 2 cm. x neck cavity deep on back of neck lower part communicating to injury No. 1. Margins everted with fracture 3rd and IV cervical and vertebra. 3. Incised wound 7 cm. x 1 cm. x bone deep on left side face and jaw just in front of left ear with fracture of left side mandible. 4. Lacerated wound 5 cm. x 2 cm. x bone deep on left side of head 2 cm. above left eye-brow. 5. Lacerated wound 6 cm. x 2 cm. x bone deep on Rt side head 5 cm. above Rt. eye-brow. 6. Lacerated wound 11 cm. x 7 cm. on Rt. side head 7 cm. above right ear. 7. Lacerated wound 9 cm. x 5 cm. on left side head 5 cm. above left ear. 8. Lacerated wound 5 cm. x 5 cm. on top of head x cranial cavity deep. 4. The prosecution examined ten witnesses in support of its case. Jhandu Singh first informant PW-1, Sethpal PW-2, Krishnapal PW-3 are the witnesses of fact. Dr. V.K. Bhargava PW-4 who performed post-mortem on the body of the deceased Tejpal and Sushil, Tejveer Singh PW-5 who was posted as Head Moharrir at police station Sarsawa on the date PW-1 had lodged the F.I.R. He proved chik report. Rakesh Kumar was examined as PW-6 who was also posted at the concerned police station and had taken the dead bodies of the deceased and other documents after Panchayatnama for conducting post-mortem. PW-7 is another formal witness Constable 1234 Rajendra Singh, PW-8 S.I. Mahendra Singh second Investigating Officer, Sunil Kumar Tyagi PW-9 first Investigating Officer and PW-10 Ram Chandra Singh Yadav who had conducted the inquest on the direction of Sunil Kumar Tyagi, S.O. of the concerned police station. 5. Sri Viresh Mishra, Senior Advocate assisted by Sri Amit Mishra Advocate appears on behalf of the appellants. 5. Sri Viresh Mishra, Senior Advocate assisted by Sri Amit Mishra Advocate appears on behalf of the appellants. The prosecution story is detailed in the F.I.R. Sri Viresh Mishra Senior Advocate before unfolding the prosecution case, at the very outset has pointed out that certain words mentioned in the written report said to have been handed over to the Station Officer Police Station Sarsawa are missing in the chik F.I.R. He claims that it is not merely an omission but a deliberate endeavour for a specific reason which shall be discussed in the later part of this judgment. Broadly stated the allegation is that there was a continuing litigation between Madan Pal son of Faggan Singh Saini and family members of the first informant and the two families did not share good relations. While the first informant alongwith his son Tejpal and Sushil were going back to their village on his tractor with cement and Sariya, some villagers namely Pahal Singh son of Lekhraj, Sethpal son of Atar Singh, Ishwar Pal son of Buddhu, Satendra son of Jagat Singh were also going to the village behind them on their respective cycles. As soon as they arrived near the filed of Buchcha Singh resident of Bhikkanpur, the accused Mitrapal son of Ballu Saini armed with Tamancha, Brahmpal son of Ramu and Sanjay son of Shyam Lal armed with dandas, suddenly came on the road where they had parked their cycles. Mitrapal opened fire with a view to stop the tractor, Master Madan Pal and Subhash also arrived on their motor-cycle. They were armed with Tamanchas and they opened fire. Brahmpal caused injuries from his danda to Tejpal and Sanjay assaulted deceased Sushil with another danda in his hand. When the first informant shouted for help, the accused fled away making fire in the air. The F.I.R. was lodged on the same day i.e. 20.7.1999 at 17.30 hours at police station Sarsawa by PW-1 Jhandu Singh situated at a distance of six kilometres from the place of occurrence. 6. When the first informant shouted for help, the accused fled away making fire in the air. The F.I.R. was lodged on the same day i.e. 20.7.1999 at 17.30 hours at police station Sarsawa by PW-1 Jhandu Singh situated at a distance of six kilometres from the place of occurrence. 6. The short points argued by Sri Viresh Mishra, Senior Advocate is that five accused were sent up for trial, out of which three of them namely Mitrapal, Brahmpal and Sanjay have been acquitted and the prosecution witnesses have been disbelieved, therefore, conviction on the basis of evidence of those very witnesses in respect of present two appellants besides being unsafe is liable to be discarded without there being any corroboration from any other witnesses. 7. It is argued next that none of the accused were armed with sharp edged weapon and discrepancy in ocular version and the injuries mentioned in the autopsy report completely rules out the possibility of any witness to have seen the occurrence. It is in this context the so called omission in the written F.I.R. and chik F.I.R. is pointed by the learned counsel that it is only with an intention to explain the lacerated injuries of the two deceased. In the written F.I.R. the accused Brahmpal and Sanjay both have been assigned the role of giving danda blows with an intention to kill whereas in the chik F.I.R. only accused Sanjay has been attributed the role of causing danda injuries to Sushil. The argument is that the chik F.I.R. has come in existence subsequent to the inquest report or even after post-mortem and, therefore, certain addition has been made at the instance of police. 8. Sri Viresh Mishra has submitted that in fact the incident had taken place in the jungle and none of the witnesses were present and this explains absence of any injured witness. The motive suggested in the F.I.R. is litigation between the first informant and accused appellant Madanpal son of Faggan Singh whereas in the statement during the trial PW-1 submits that Ballu father of Mitrapal was murdered. The deceased and first informant were accused in the said murder case and trial was pending. The accused arrayed in the present case were all witnesses in the said Criminal Case. This murder had taken place 10 months before the present incident and, therefore, there was no immediate motive to commit the Crime. The deceased and first informant were accused in the said murder case and trial was pending. The accused arrayed in the present case were all witnesses in the said Criminal Case. This murder had taken place 10 months before the present incident and, therefore, there was no immediate motive to commit the Crime. On the contrary, it is argued that it is a blind murder where the real assailants were not known, obviously there was enough cause to falsely implicate the appellants. 9. Sri Viresh Mishra has mainly centred his argument on the evidence of doctor and injuries found by him on the body of the deceased at the time of autopsy. The surgeon who had performed the post-mortem, Dr. V.K. Bhargava was examined as PW-4. The injuries of Tejpal are three in number. Injury No. 1 is an entry wound and injury No. 2 is an exit injury. Injury No. 3 is a lacerated wound 16 cm. x 14 cm. and a number of pieces of bone were completely missing from the cranial cavity and brain matter was coming out. The emphatic submission is that it is not a danda injury, that too when the prosecution has consistently maintained that it is Brahmpal who had given danda blows to Tejpal. The prosecution has prepared the recovery memo of one Eucalyptus danda which cannot result in a lacerated injury 16 cm. x 14 cm. Similarly the lacerated injuries found on the body of the deceased Sushil are five in number. Injury No. 4 is 5 cm. x 2 cm., injury No. 5 is 6 cm. x 2 cm. x bone cavity deep, injury No. 6 is 11 cm. x 7 cm., injury No. 7 is 9 cm. x 5 cm. and injury No. 8 is 5 cm. x 5 cm. These injuries can also not be caused by a Eucalyptus danda. Besides, injury No. 3 which is incised injury 7 cm. x 1 cm. has also not been explained by the prosecution. The doctor has admitted that injury No. 3 to Sushil was caused by some sharp edged weapon. The dimension of this injury appears to be of some heavy cutting weapon. The doctor has also admitted that the injury No. 3 to Tejpal can also be caused if he falls on hard ground from a running vehicle. Injury Nos. The doctor has admitted that injury No. 3 to Sushil was caused by some sharp edged weapon. The dimension of this injury appears to be of some heavy cutting weapon. The doctor has also admitted that the injury No. 3 to Tejpal can also be caused if he falls on hard ground from a running vehicle. Injury Nos. 4, 5, 6, 7 and 8 to Sushil can very well be caused by use of heavy cutting weapons from different angles. The learned counsel has also pointed out the anomaly in the fire arm injuries and discredited the prosecution theory that the injuries were caused from a distance of 6 feet. This does not substantiate scorching all around the injury. 10. We agree with the argument of Sri Viresh Mishra that this cannot be caused by a fire arm of 12 bore whereas only 12 bore fire arms and cartridges were recovered from the two accused Subhash and Mitrapal. Ballistic report does not support the prosecution case of use of 12 bore fire arm. Six empty cartridges of 12 bore alleged to be recovered from or around the place of occurrence apparently appears to be planted. It is also noteworthy that no recovery memo was prepared, of the tractor on which the deceased and PW-1 are said to be going. The witness has failed to give registration number of the tractor and has also admitted in his cross-examination that he did not possess any licence for driving the tractor, neither two deceased had any licence in their names. No tractor was registered in their names at the time of occurrence and claim of the prosecution witness that he jumped out from the tractor and two deceased were pulled out from the tractor, is not substantiated by any cogent evidence. He also admits that no trolley was attached to the tractor whereas the case of the prosecution is that Sariya and Cement were being carried on the tractor. Besides, all the witnesses of fact belong to one and the same family and same Biradari and they have contradicted each other on a number of points. They have also expressed their ignorance regarding relevant questions such as the distance from where the firing was resorted, place where the tractor stopped and the road on which the incident had taken place, is neither shown in the site plan nor substantiates the nature of injuries. They have also expressed their ignorance regarding relevant questions such as the distance from where the firing was resorted, place where the tractor stopped and the road on which the incident had taken place, is neither shown in the site plan nor substantiates the nature of injuries. Besides, the witnesses admit that the assertion made during the trial does not find place in their original statements under Section 161, Cr.P.C. at the time when the Investigating Officer interrogated them. 11. Learned Counsel has also impressed upon us the part of the judgment of the learned Sessions Judge where he has specifically come to a conclusion that the other three accused named in the F.I.R. and attributed specific role by the first informant as well as other accused were falsely implicated, they were not present at the scene of occurrence. The same evidence has been accepted wholeheartedly in respect of the present appellants which does not stand to reason. 12. Learned A.G.A. was heard on behalf of the State who has tried to emphasize that the accused Sanjay and Bhrahmpal had assaulted with their respective dandas as well as the fact that both these accused continued to hit at two deceased Tejpal and Sushil continuously for 2-3 minutes. Though reliance has been placed by the learned A.G.A. on this assertion but these accused have been granted a clear acquittal disbelieving PW-1 and, therefore, we do not find any substance in his argument. 13. A close scrutiny and analysis leaves us ultimately to wonder why the learned Sessions Judge adopted two yardsticks whereas the claim of the prosecution that danda blows were given by the two accused and admittedly lacerated injuries as noticed by the doctor were equally instrumental in causing death of the deceased. We are also of the view that dimensions of the lacerated injuries specially on bony surface can only be caused either hitting the deceased by a heavy stone or a heavy blunt object which is not the case of the prosecution. If more than half of the case has not been accepted and benefit of doubt has been given to other co-accused, we are unable to uphold the conviction in respect of present two appellants. If more than half of the case has not been accepted and benefit of doubt has been given to other co-accused, we are unable to uphold the conviction in respect of present two appellants. No doubt they have been assigned role of causing fire arm injury but we cannot loose sight of the fact that the trial proceeded on a charge of Sections 148, 302 read with Section 149, IPC However, all the same conviction is simplicitor under Section 302, IPC 14. Learned A.G.A. has not been able to substantiate his argument with any specific or clear cut demarcation between the role attributed either in the F.I.R. or in the statement of the witnesses between the set of the accused who have been acquitted and present appellants before us. 15. Thus we are of the opinion that the testimony of the witnesses examined by the prosecution does not inspire confidence. Their assertions are far from truth and their falsity is evident. In the facts and circumstances of the case, we are of the opinion that the present appellants are also entitled for the same benefit of doubt. Evidently the injuries on the body of two deceased does not find support with the assertions made by the witnesses of fact. They have only dilly dallied and tried to give evasive answers to the cross examiner. These witnesses are not convincing and trustworthy to uphold the conviction and for these reasons we find it difficult to confirm the judgment of conviction of the Court below. 16. In view of what has been stated above, the appellants are entitled for benefit of doubt and we hold that the prosecution has not been able to establish the prosecution story by means of reliable evidence beyond reasonable doubt. The judgment of conviction recorded by the learned Sessions Judge has no legs to stand. The judgment dated 6.12.2006 passed by the Additional District and Sessions Judge, Court No. 10, Saharanpur in Session Trial No. 1239 of 1999, State v. Mitrapal and 4 others is set at naught. The appeal is accordingly allowed. The appellants shall be set at liberty forthwith. Let a copy of this judgment alongwith lower Court record be sent to the Sessions Judge, Saharanpur for compliance. ————