JUDGMENT Hon’ble Mrs. Poonam Srivastav, J.—These three Criminal Appeals arise from of judgment and order dated 23.4.2009 passed by Additional Sessions Judge, Court No. 6, Aligarh, in Session Trial No. 42 of 1998 State v. Raju and others and Session Trial No. 146 of 1999, State v. Satendra Singh. 2. Seven accused were sent up for trial. Accused Raju and Bachchu have been acquitted. Accused Pratap Singh and Bhupendra died during continuation of the trial whereas present three appellants have been convicted under Sections 302/149, I.P.C. and sentenced to undergo life imprisonment and fine of Rs. 10,000/- each. In default of payment of fine, further imprisonment of one year. They have been sentenced to undergo one year and six months under Section 147, I.P.C. and two years R.I. under Sections 148, I.P.C. All sentences were directed to run concurrently. 3. According to story given out in the first information report, occurrence is alleged to have taken place on 23.5.1996 at 10:30 a.m. near Hathras Club on Hathras Aligarh Highway. First information report was lodged by PW-1 Udaiveer Sharma father of the deceased Dilip Kumar, on the same day at 11:30 a.m. at Police Station Hathras Gate, Sub District Hathras, District Aligarh. Scribe of report is Yogesh Kumar Sharma PW-2. 4. Prosecution story disclosed in the first information report is that one Ghanshyam Singh of Chaudhary Transport Company was murdered. Son of first informant was arrayed as an accused in the said murder. Raju and Bachchu also of Chaudhary Transport Company conspired with some hired assailants of village Akhaipur to avenge the murder of his associate of Transport Company. The date fixed for remand of Rajesh son of first informant was 23rd May, 1996. Deceased alongwith first informant Udaiveer Sharma, scribe of FIR Yogesh Kumar Sharma son of Purshottam Das, Sanjeev son of Satya Dev Sharma, Dinesh son of Mor Mukut were standing near Hathras Club and waiting for the bus to Aligarh. At 10:30 a.m. the accused named in the F.I.R. are alleged to have arrived on three motorbikes armed with firearm, resorted to indiscriminate firing, all the witnesses in a bid to save themselves took shelter behind Khokhas (wooden Gumti) on the roadside. Firing by all the accused resulted in instantaneous death of Dilip Kumar. 5. At 10:30 a.m. the accused named in the F.I.R. are alleged to have arrived on three motorbikes armed with firearm, resorted to indiscriminate firing, all the witnesses in a bid to save themselves took shelter behind Khokhas (wooden Gumti) on the roadside. Firing by all the accused resulted in instantaneous death of Dilip Kumar. 5. It is further alleged in the FIR that the occurrence took place in a crowded area, but on account of the day light murder, nearby residents and shop owners started fleeing as they were terrorized. Pedestrians, and persons who had cycles and rickshaws also started running away leaving behind their cycles and rickshaws. Accused escaped undeterred by showing their Tamanchas to the nearby residents, shop owners and other passers by. 6. A First Information Report was registered on the same day at 11:30 a.m. at Police Station Hathras Gate, Sub-district Hathras Aligarh by Udaiveer Sharma, father of the deceased. Police Station is shown to be situated at a distance of 3 furlong from the place of incident. Scribe of the report Yogesh Kumar Sharma PW-2 is a friend of the deceased and brother-in-law (Sala) of brother of the deceased. 7. Autopsy was performed on the body of the deceased by Dr. Syeed Mohammad on 23.5.1996 at 10:00 p.m. Post-mortem report is Ext.Ka-2. According to the doctor, following ante mortem injuries were found on the body of the deceased: (1) Gun-shot wound of entrance 1cm x 1cm x brain cavity deep margins inverted, burning, tattooing present. Direction is oblique, over just lateral to right nostril. A bullet recovered embedded in the left temporal bone of skull behind the pinna of ear. (2) Gun-shot wound of entrance with burning & tattooing 4 cm x 3 cm x through & through over the right side of cheek just ahead angle of mandible. Part of skin & muscles sloughed out mandible broken, margins inverted. Wound of exit is in continuation sloughing out skin & muscles measuring 5 cm x 3 cm x through & through margins everted just below lower lip on right side. (3) Gun-shot wound of entrance 3 cm x 2 cm x thoracic cavity deep over the right lateral aspect of chest 12 cm interior & slightly lateral to armpit. Direction is oblique. Burning and tattooing present. Prosecution examined seven witnesses to prove its case. (3) Gun-shot wound of entrance 3 cm x 2 cm x thoracic cavity deep over the right lateral aspect of chest 12 cm interior & slightly lateral to armpit. Direction is oblique. Burning and tattooing present. Prosecution examined seven witnesses to prove its case. PW-1 Udaiveer Sharma first informant, PW-2 Yogesh Kumar Sharm scribe of report, friend of deceased and also brother-in-law (Sala) of brother of the deceased, PW-3 Dinesh Verma friend of deceased, PW-4 Dr. Syeed Mohammad, who performed autopsy, PW-5 Naseer Khan proved chik FIR, PW-6 Gulzar Ahmad first Investigating Officer and PW-7 S.I. Shyam Pal Singh second Investigating Officer. Witness Sanjeev son of Satya Dev Sharma named as an eye-witness in the first information report was not examined. 8. Heard Sri Brijesh Sahai Advocate assisted by Sri Devesh Kumar Advocate appearing for appellants and Sri Ram Milan Dwivedi learned A.G.A. on behalf of the State. A number of flaws and anomalies are pointed out in the prosecution case by Sri Brijesh Sahai, Advocate. Arguments advanced are manifolds. He has challenged; (a) time of incident, (b) place of incident, (c) presence of eye-witnesses especially since no independent witness from the place or around vicinity where occurrence took place, was examined by the prosecution. (d) motive is not established, on the contrary reasons have been elucidated and highlighted in support of the argument that two main accused Raju and Bachchu who had hired the present appellants to vindicate murder of Ghanshyam were ensured a verdict of acquittal by the eye-witnesses. The eye-witnesses of the instant murder deliberately did not mention their names and feigned ignorance of their identity. PW-1 and his son Rajesh bartered their acquittal with accused Raju and Bachchu who turned hostile in the murder trial of Ghanshyam. (e) First Information Report and inquest are ante timed, defence also challenges place of inquest. (f) eye-witnesses are not reliable, specifically a number of discrepancies and contradictions on material points have been stressed and focussed. (g) It is argued that though charge was framed under Section 307, I.P.C. on the ground that accused had opened fire on all the witnesses of fact with an intention to kill but this version of an attempt to murder was not believed by learned Sessions Judge and a clear acquittal was granted in respect of offence under Section 307, I.P.C. Therefore, necessary conclusion is that firing at the witnesses was disbelieved. 9. 9. We proceed to decide each of the aforesaid arguments raised by learned counsel for appellants and examine inconsistency of evidence pointed out by him. So far question of motive for commission of crime is concerned, case proceeds as detailed in the FIR that this is a revenge murder by accused Raju and Bachchu who are arrayed as accused Nos. 1 and 2 in the first information report alongwith five hatchet men on account of rivalry in transport business. 10. According to First Information Report, present appellants are mentioned as accused Nos. 5, 6 and 7 serially. They are resident of another village namely Akhaipur, Police Station Hathras Junction. At the initial stage, present appellants were described as hired assassins. Subsequently, during the trial, prosecution has tried to allege a novel reason for commission of crime and a specific MOTIVE has been carved out. It is for the first time during cross-examination of PW-1, he has given out that appellants are criminals and used to indulge in extortion of money. Since their demand was not fulfilled, murder was committed. 11. Next submission regarding place and time of incident, argument is that prosecution has maintained consistently that all assailants had fired by their respective firearms. It means that there were seven shooters and degree of enmity being common, all the witnesses were aimed at by the accused but surprisingly only the deceased received firearm injuries which resulted in his death. None of the witnesses were injured, not a scratch was detected on anyone. Besides, recovery of a single cartridge from place of occurrence belies prosecution story of seven indiscriminate shots missing its other targets, save the single deceased. 12. Blood stained and plain earth recovered was not sent to the seriologist to substantiate that any blood was found on the alleged place of occurrence. Though police has shown recovery of a number of bicycles, rickshaws and footwears in support of this argument that large number of witnesses were available at the place of occurrence when shoot out took place but none of the witness was examined. Recovery memo of bicycles, rickshaws and footwears as Ext.Ka-7 has not been connected with any person of the area from where these articles were recovered, which is the place of incident. Thus, entire theory of seven persons on motor-cycle resorting to random firing is laced with suspicion. 13. Recovery memo of bicycles, rickshaws and footwears as Ext.Ka-7 has not been connected with any person of the area from where these articles were recovered, which is the place of incident. Thus, entire theory of seven persons on motor-cycle resorting to random firing is laced with suspicion. 13. The place and time of occurrence are also challenged on account of discrepancies pointed out regarding inquest report as well as three different versions given by three witnesses of fact regarding first information report, therefore, lodging of the F.I.R. becomes dicey. Reason for witnesses to be present at the spot claimed by the prosecution is also challenged since it is neither the bus station nor place where bus would stop earlier than the place where usually the bus stops. It is, therefore, argued that according to PW-3, pond (Talab) is mid way somewhere in between shop of the complainant and site of incident. The site plan prepared by the Investigating Officer does not confirm the prosecution theory as well, the case that firing took place from 5-7-10 paces is also not substantiated. Reason for presence of the witnesses are also challenged that witnesses were going to Aligarh as it was the day of remand of Rajesh son of PW-1 in the murder of Ghanshyam. No substantive piece of evidence has been placed on record to build up link of the date which is the specific reason for the witnesses to have assembled at the spot to leave for Court at Aligarh, which was a working day. 14. After hearing Sri Brijesh Sahai at leagth, we proceed to test veracity of the three eye-witnesses. The prosecution story in the F.I.R. specifically states that Raju and Bachchu belong to Chaudhary Transport, with an intention to retaliate the murder of their associate Ghanshyam of transport business hired the other co-accused, whose name figures in the F.I.R., they arrived at the time and place of occurrence on three motor-cycles, fully armed and indulged in indiscriminate firing. Witnesses alongwith deceased were standing on the road waiting for bus to Aligarh as it was remand date of Rajesh son of PW-1 in the murder of Ghanshyam (associate in Transport business of two co-accused Raju and Bachchu). On arrival of the accused, witnesses tried to hide themselves behind Khokhas on the road side but Dinesh Kumar did not run for his life and consequently met an instantaneous death. On arrival of the accused, witnesses tried to hide themselves behind Khokhas on the road side but Dinesh Kumar did not run for his life and consequently met an instantaneous death. No specific weapon or any specific role has been attributed to any of the accused. Subsequently, during the trial, witnesses tried to exonerate the two accused Raju and Bachchu by stating that they had concealed their faces by tying DHATA and, therefore, they were not able to recognise the two accused. This is absolutely novel to the prosecution case as detailed in the F.I.R. as well as in the statement before the Investigating Officer under Section 161, Cr.P.C. None of the witnesses have tried to establish or substantiate any proximity of the present appellants with the co-accused Raju and Bachchu. An altogether different motive is spelled out by the eye-witnesses during trial giving a complete new facet to the prosecution case. 15. PW-1 has for the first time stated during the trial that two assailants had camouflaged their faces by tying a cloth (DHATA) on their faces and given out names of other five accused. The motive for murder is also that accused Manoj was a GUNDA and that he had lodged an oral complaint with the police but no action was taken against him. Also that accused Satendra, Krishna Pratap and Pratap Singh used to demand CHAUTH and they committed the offence as PW-1 refused to part with the amount. He was, however unable to mention any specific date when they came and demanded extortion. Similarly, PW-2 has also tried to support this motive as spelled out by PW-1 but he has admitted that the accused had never gone to his shop to blackmail him. He also expressed his ignorance whether the accused demanded any money from deceased Dileep. Thus, we are of the opinion that PW-2 Yogesh Kumar Sharma is also a tutored witness and keeps vacillating from one statement to other. Though he pointed out that accused have committed murder on account of reason that their demand of extortion was not fulfilled but he does not say that he was subjected to any kind of such demand. 16. The F.I.R. mentions that Police Station is situated at a distance of three furlongs south from the place of occurrence. PW-1 in his cross-examination states that Police Station is situated at half furlong. 16. The F.I.R. mentions that Police Station is situated at a distance of three furlongs south from the place of occurrence. PW-1 in his cross-examination states that Police Station is situated at half furlong. In the inquest, distance of Police Station is mentioned 1 ½ furlongs. PW-2 gives out distance as ½ and ¾ kilometres. Sequence of event given out by three witnesses also differs materially. PW-1 states that report was written out at Police Station, case was registered and thereafter police swung in action whereas other two witnesses do not support this sequence. They have altogether given different story. 17. PW-2 submits that they had gone to Police Station and informed orally about the entire incident. Police came to the place of occurrence thereafter police asked them to get the F.I.R. registered. PW-2 claimed that when the police returned after inspecting site of occurrence, report was written out in front of Police Station. He is not able to say whether at that time police had brought dead body to the Police Station or not; meaning thereby whether informal inquest preceded lodging of the F.I.R. 18. The place of occurrence as shown by prosecution also becomes dicey for the reason that not a single mark of firearm has been found on the Khokha (wooden Gumti) behind which the witnesses claim to have hidden themselves. Only a single cartridge was recovered from the vicinity, the distance of Police Station given out by each of the witnesses or mentioned in other documents of police also differs from one another, as well as none of the motor-cycles on which accused are alleged to have arrived were recovered. Witnesses have not even given out number or colour or make of motor-cycles coupled with the fact that none of the witnesses from the locality, whom the prosecution claims had their cycles, motor-cycles and footwears, have come forward to depose before the police. They have also not tried to connect the rickshaws and cycles with its real owner or even to ascertain and confirm their presence. Besides, all the three eye-witnesses have mentioned the place of occurrence where they have unequivocally admitted that bus does not stop. They have also not tried to connect the rickshaws and cycles with its real owner or even to ascertain and confirm their presence. Besides, all the three eye-witnesses have mentioned the place of occurrence where they have unequivocally admitted that bus does not stop. The place where they were waiting for bus is half furlong ahead of the bus station and no reason has been given why would witnesses take the trouble to walk another half furlong ahead to catch the bus when they could very well board it earlier at the bus station. It is absolutely an unnatural conduct of a prudent man. If prosecution has taken trouble to give out this theory, it was necessary for it to come forward with a plausible reason. 19. It is also interesting to note that motive given out in the F.I.R. has completely taken a somersault. After lapse of nine years, prosecution has conceived a new motive with a view to give a reason for the present appellants to commit the crime. The fact that PW-1, PW-2 and PW-3 have tried to save and exonerate the two main assailants namely Raju and Bachchu, is another pointer towards the suggestion made by the counsel appearing for the defence that it was an unholy alliance between PW-1, PW-2 and PW-3 on one hand, Raju and Bachchu on the other vis-a-vis the murder trial of Ghanshyam. Evidently they had bartered their respective acquittal by exonerating first two accused of F.I.R. by changing their versions during the trial. We have noticed the observation of the learned Sessions Judge in his judgment disbelieving theory of DHATA and accepts that it is only an eyewash but since none of the witnesses have given out names of the two accused Raju and Bachchu, he had no option but to record judgment of acquittal in their favour. 20. Argument of learned counsel for the appellants while challenging the place of inquest, he has emphasized on cross-examination of PW-2 and PW-3 who have clearly contradicted as to when and how the dead body was taken by police. They have not been able to give any time or whether report was written out before the inquest. 20. Argument of learned counsel for the appellants while challenging the place of inquest, he has emphasized on cross-examination of PW-2 and PW-3 who have clearly contradicted as to when and how the dead body was taken by police. They have not been able to give any time or whether report was written out before the inquest. In fact, we are in agreement with the submission of the defence counsel that original inquest does not mention PW-2 and PW-3 as witness of inquest on the contrary, two other persons namely Mahendra Singh and Hari Lal are mentioned as Panches who were evidently not examined. PW-2 and PW-3 have categorically admitted that Investigating Officer interrogated and recorded their statements more than after fortnight. These factors cannot be overlooked and if the oscillating stand of these two witnesses is scrutinized, their presence at the place of incident is shrouded with doubt. The testimony of the eye-witnesses on each count fails to inspire confidence. 21. So far injuries on the body of the deceased as notice by PW-4 Dr. Syeed Mohammad is concerned, there are three gun shot wounds of entrance, burning and tattooing are present. The shooting is apparently from a close range and use of two weapons cannot be ruled out. However, manner in which occurrence is said to have taken place, possibility of missing target appears to be improbable. Thus, prosecution case set out in the F.I.R. as well as statement of eye-witnesses that all the seven accused fired at the deceased and also one of witnesses states that some of the accused had caught hold of the deceased does not support manner of occurrence claimed by prosecution. This entails a necessary conclusion that all the seven name accused had not participated obviously false implication of at least a few of them is evident. 22. The doctor has found stomach empty, faecal matter and gases are present in large intestine and semi digested food and gases in small intestine. 23. PW-1 claims that deceased had taken breakfast at 9:45 a.m. before leaving for bus stand but according to the doctor, deceased had taken some solid food at least 3 ½ or 4 hours before. He has also admitted in his cross-examination that death could have taken place at 4:00 a.m. i.e. wee hours of the morning. The fact is that deceased had taken breakfast as admitted by the first informant. He has also admitted in his cross-examination that death could have taken place at 4:00 a.m. i.e. wee hours of the morning. The fact is that deceased had taken breakfast as admitted by the first informant. The prosecution theory that he had not eased out himself before leaving his house for Aligarh Court, is difficult to accept, specially when he had breakfast before leaving for the Court and he had the entire day outside his house. 24. Post-mortem was performed at 10:00 p.m. The doctor admits that he received dead body on 23.5.1996 at 9:30 p.m. and the dead body reached police line at 7:20 p.m. Thus, on the basis of all these factual discrepancies and assertion of the doctor, Sri Brijesh Sahai, Advocate, has emphasized his argument that first information report is ante timed, challenge regarding time of inquest by defence appears to be probable and claim of prosecution is not very convincing. Inquest commenced at 12:30 p.m. and was over at 2:00 p.m. 25. Evidence of PW-5 Naseer Khan who was a constable clerk of Police Station Hathras Gate on the date of occurrence clearly states that case was registered in G.D. No. 21 but he also admits that no cognizable offence was registered prior to registration of case crime No. 107 of 1996 or subsequent to its registration. 26. PW-6 Investigating Officer states that inquest was performed in his presence and it was performed at a distance of one and half furlong but he is not able to deny the fact that in the F.I.R. distance of Police Station is mentioned as three furlongs. He also states that though he was present at the Police Station which is in a close proximity of the place of occurrence but he did not hear sound of firing on account of heavy traffic. He admits that eye-witnesses are not of the locality where occurrence had taken place but they reside at a far away place. He also admits that he had not tried to find out regarding the date of remand of Rajesh in the murder trial of Ghanshyam. Thus, the link to establish presence of all the witnesses at the site is completely missing. 27. He also admits that he had not tried to find out regarding the date of remand of Rajesh in the murder trial of Ghanshyam. Thus, the link to establish presence of all the witnesses at the site is completely missing. 27. After a close analysis of all these discrepancies and contradictory stand, it is difficult to accept testimony of the witnesses, specially when the two accused who were clearly named in the F.I.R. with the specific motive and assertion that it was Raju and Bachchu who had hired hatchet men to avenge the murder of Ghanshyam but subsequently this was completely changed during the trial. The first two named accused were claimed to have concealed their faces, therefore, witnesses could not recognize them whereas other accused i.e. accused Nos. 3 to 7 were said to be criminal and they indulged in extortion but without there being any criminal history, they have been implicated. 28. The prosecution witnesses clearly state that all these accused were not known from before then how were they named in the F.I.R. as well as if two accused could wrongly be implicated then where is the certainty that the present appellants have not been implicated falsely. All these witnesses are interested and belong to another locality and they have conspicuously and clearly given different version regarding manner of assault, sequence of registering of the F.I.R., time of inquest and the fact that all of them fired at the witnesses alongwith deceased with an intention to kill but each of them escaped unscathed. All the accused fired at everyone and degree of enmity being common, theory of attempt to murder having been disbelieved by the learned Sessions Judge, we are not able to accept the prosecution version. There is nothing to substantiate that date of occurrence was date fixed in the murder of Ghanshyam. There is nothing to support that witnesses had hidden themselves behind wooden Khokhas since prosecution claimed that firing was made at witnesses that is why charge was framed under Section 307, I.P.C. but there is not a single sign of firing on the wooden Khokhas which makes the case doubtful. 29. We are in agreement with arguments of Sri Brijesh Sahai while castigating the evidence regarding place of occurrence, time of occurrence vis-a-vis medical evidence, presence of witnesses and also manner of assault. 29. We are in agreement with arguments of Sri Brijesh Sahai while castigating the evidence regarding place of occurrence, time of occurrence vis-a-vis medical evidence, presence of witnesses and also manner of assault. Besides, two different motive suggested by the prosecution in the F.I.R. and during the trial cannot be accepted. 30. Sri Ram Milan Dwivedi, learned A.G.A. arguing on behalf of the State has submitted that since there is direct evidence and it is a day light murder, there is no reason why prosecution should not be disbelieved. Since he has failed to give reply to the specific arguments advanced by learned counsel for the defence, therefore, we are unable to agree with the conclusion recorded by learned Additional Sessions Judge. The order of conviction cannot be upheld for the reasons detailed above. 31. In view of what has been stated above, the judgment of conviction recorded by learned Additional Sessions Judge has no legs to stand. The judgment and order dated 23.4.2009 passed by Additional Sessions Judge, Court No. 6, Aligarh, in Session Trial No. 42 of 1998, State v. Raju and others and Session Trial No. 146 of 1999, State v. Satendra Singh are set at naught. The appeals are, 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, Aligarh for compliance. ————