JUDGMENT Hon’ble Mrs. Poonam Srivastav, J.—The instant appeal arises from a judgment and order dated 28.11.2008 passed by the Additional Sessions Judge, Court No. 3, Varanasi in Session Trial No. 245 of 2005, State v. Imran Afreen. The conviction of the appellant is under Section 302 I.P.C. and he is sentenced to life imprisonment and fine of Rs. 50,000/-. In default of payment of fine, a further imprisonment of one year. Learned Sessions Judge directed that injured shall be paid Rs. 40,000/- from the amount deposited as fine. 2. The occurrence is alleged to have taken place on 1.1.2005 at 9.00 p.m. infront of Hotel Shalimar. F.I.R. was registered on the same day at 11.05 p.m. at Police Station Cantt. Varanasi by Himanshu Mohan Rai alias Munna, brother of deceased Lalit Rai. The distance of Police Station from the place of occurrence is reported to be one kilometre north east. 3. The prosecution has examined seven witnesses in support of its case. Himanshu Mohan Rai alias Munna first informant was examined as PW-1 who is brother of the deceased and proprietor of Hotel Shalimar, Cantt. Varanasi. Chandra Shekhar as PW-2 who is also eye-witness. Dr. M.P. Mishra as PW-3 who performed autopsy on the body of the deceased. Constable Ram Kishore Sharma PW-4 who proved chik F.I.R. registered at case crime No. 1 of 2005. Sri Niwas Pandey second Investigating Officer who had taken over investigation on 2.1.2005 at 12.10 p.m. and registered the case under Section 304 I.P.C. as PW-5 and D.P. Shukla first Investigating Officer as PW-6 who had taken over investigation while he was on petrolling duty and not present at the police station. He received information about the incident on his R.T. Set. R.K. Singh PW-7 is third Investigating Officer. He had taken over investigation on 9.1.2005 and submitted charge sheet under Section 302/34 I.P.C. on 8.2.2005. 4. There are four defence witnesses Birbal alias Sankatha DW-1, guard of Hotel Ritz DW-1, Shashikant Bandi Rakshak DW-2, S.I. Ram Prabhav Rai DW-3 who is the officer who performed inquest and Dhirendra, Bijali Mistri of Hotel Ritz as DW-4. 5. The accused appellant was arrested on 5.1.2005 along with his licensed gun .32 bore and four live cartridges by PW-5 second Investigating Officer. Memo of arrest and recovery memo of the arms and cartridges is Ex. Ka-5. 6. 5. The accused appellant was arrested on 5.1.2005 along with his licensed gun .32 bore and four live cartridges by PW-5 second Investigating Officer. Memo of arrest and recovery memo of the arms and cartridges is Ex. Ka-5. 6. The manner and details of the incident narrated in the F.I.R. is, that on 1.1.2005 at about 8.30 p.m. Manoj Kr. Singh alias Bahadur who was working as a waiter in Hotel Shalimar, was returning to the Hotel after buying milk. He collided with the appellant and two others who were drunk. The appellant and the two other co-accused chased Bahadur, he ran and took shelter in the Hotel. The appellant also entered the Hotel in his Car U.P.-65-0002 and his two associates on a motorcycle UPZ-5214. They started abusing and hitting Ramesh Singh alias Bahadur. The first informant Himanshu Mohan Rai alias Munna, deceased Lalit Rai and Rajnath Singh (owner of the Hotel building) tried to intervene and brought them out side the hotel. Appellant Imran is alleged to have fished out his pistol and fired at the deceased Lalit Rai who fell down as a result of the injuries. This happened at 9.00 p.m., outside the Hotel premises. Chandra Shekhar Rai PW-2, Krishna Kumar Singh and many others reached at the place of occurrence. The appellant Imran and his friends left their vehicles and ran away. Lalit Rai was carried to Kabir Chaura Hospital where he was declared dead. Scribe of the F.I.R. was Girjesh Rai Sharma . The F.I.R. was registered at Police Station Cantt., Varanasi which is Ex. Ka-1. 7. Trial of two other co-accused, who were not named in the F.I.R. namely Gufran Afreen and Abdul Wasi was separated and same was pending on the date of the present trial before Juvenile Justice Board, Varanasi and was numbered as Session Trial No. 7 of 2005. 8. Post mortem on the body of the deceased Lalit Rai was performed by PW-3 Dr. M.P. Mishra on 2.1.2005 at 2.00 p.m. which is Ex. Ka-2. Following ante-mortem injuries were found on his body. (1) Fire arm injury 0.5 cm. x 0.5 cm. x cavity deep on left upper front of chest 8 cm. below from clavicle 5 cm. away mid line. (2) 1 cm. x 0.5 cm. x cavity deep 4 cm. above from left nipple. (3) 4 cm. x 2 cm. Ka-2. Following ante-mortem injuries were found on his body. (1) Fire arm injury 0.5 cm. x 0.5 cm. x cavity deep on left upper front of chest 8 cm. below from clavicle 5 cm. away mid line. (2) 1 cm. x 0.5 cm. x cavity deep 4 cm. above from left nipple. (3) 4 cm. x 2 cm. x cavity deep from lateral part of chest 9 cm. below from tip of axilla. (4) 1 cm. x 1 cm. x cavity deep on lateral part of chest 13 cm. below from tip of axilla and 3 cm. lateral to injury No. 3. (5) 1 cm. x 1 cm. x muscle deep on left shoulder. (6) 1 cm. x 1 cm. x cavity deep below from left shoulder 19 cm. Blackening and charring of skin present. 9. An application 62Kha was moved on behalf of the prosecution under Section 319 Cr.P.C. to summon Shamshul Afreen, father of the appellant as an accused which was rejected by the Additional Sessions Judge on 24.11.2005 and the said order was never challenged. 10. Sri Dileep Kumar Advocate appeared on behalf of the appellant and made his submissions. He commenced his arguments with a specific criticism that the prosecution has failed to substantiate its case with valid and cogent evidence and it has deliberately withheld material witnesses. Claim on behalf of the defence is that initially at the time when the report was registered and investigation commenced under Section 304 I.P.C. but charge sheet was submitted under Section 302/34 I.P.C. and thereafter again the case was converted under Section 304 I.P.C. However, charge was framed under Section 302/34 I.P.C. for which offences the appellant has been convicted. An application was moved at the instance of State during the trial under Section 319 Cr.P.C. for summoning Shamshul Afreen (father of the appellant) as an accused. The application was rejected by the learned Sessions Judge by a well discussed order on 24.11.2005. The order was never challenged and it is a final order. 11. An application was moved at the instance of State during the trial under Section 319 Cr.P.C. for summoning Shamshul Afreen (father of the appellant) as an accused. The application was rejected by the learned Sessions Judge by a well discussed order on 24.11.2005. The order was never challenged and it is a final order. 11. Two witnesses of the F.I.R. namely Krishna Kumar Singh, Manager of Shalimar Hotel and Ramesh Kumar Singh son of Raj Nath Singh, owner of the building where SHALIMAR HOTEL is housed, have not been produced, though they were specifically named as eye-witnesses in the F.I.R. It is also brought to our notice by the learned counsel appearing on behalf of the defence that the building in which Hotel Shalimar was situated, was leased in the name of Smt. Alka Rai wife of the deceased Lalit Rai. The first informant and the deceased Lalit Rai used to run the Hotel Shalimar. Deposition of the first informant in the Session Trial, in his examination-in-chief is a repetition of the same story as detailed in the F.I.R. However, he has also named the other three accused who had accompanied the appellant when they entered the Hotel building, were Shamshul Afreen, Gufran Afreen and Abdul Wasi. All of them had chased the waiter Bahadur (Manoj Kumar Singh) and started manhandling him. The deceased and witness Ramesh Singh son of Raj Nath Singh tried to intervene. They came out of the Hotel and on the instigation of other co-accused, the appellant Imran swished out his pistol and murdered Lalit Rai. Subsequently a number of shots were fired on his chest. Hearing the shots, a crowd gathered near the place of occurrence and since it was the new year’s day, there was sufficient light and, therefore, the first informant and other witnesses were able to recognize the assailants. Lalit Rai was taken in an Auto to the hospital where he was declared dead. The F.I.R. was dictated in the hospital itself to Girjesh Rai and the F.I.R. was lodged promptly which was identified in the Court and exhibited as Ex. Ka-1. The scribe Girijesh Rai has not been examined. 12. Sri Dileep Kumar while commenting on the deposition of PW-1 has pointed out certain assertions made by him which are sufficient to substantiate that PW-1 was not present at the scene of incident. Ka-1. The scribe Girijesh Rai has not been examined. 12. Sri Dileep Kumar while commenting on the deposition of PW-1 has pointed out certain assertions made by him which are sufficient to substantiate that PW-1 was not present at the scene of incident. He admits that the name of accused Shamshul, Gufran and Abdul Wasi was disclosed to him for the first time only on 5.1.2005 when he had gone to the house of a Congress Leader Abdul Kalam to pay homage on his death. He had heard the names of these three accused. Their names were called out by a number of visitors present there. He further admits that there was a huge crowd at the house of Congress M.L.A. and he (PW-1) was not able to reach the house of the Congress leader. He was stranded on the road itself. He was also not able to disclose the date of death of Abdul Kalam or any other detail about him coupled with his admission that prior to the said date neither did he recognize the co-accused nor he knew their names. He has further denied the fact that he had told the I.O. that present appellant was also present in the house of the Congress leader, he was confronted with his statement under Section 161 Cr.P.C. Thereafter an application was given to the Circle Officer only on 9.1.2005 which was again scribed by Girjesh Rai naming the three persons. 13. Learned counsel has pointed out that the occurrence took place on 1.1.2005. Name of the co-accused came to his knowledge at the house of Abdul Kalam on 5.1.2005 and names were disclosed to the police/Investigating Agency only after a lapse of 3 days. In later part of his cross examination PW-1 has admitted that there was no occasion for him to reach the house of Abdul Kalam. There was a huge crowd and he could not reach his house. He was also not able to disclose the area of which he was M.L.A. and was not able to give any information about his death. He also accepts that prior to the date when he had gone to the house of M.L.A. Abdul Kalam, he had never seen the other co-accused nor had ever met them. He was also not able to disclose the area of which he was M.L.A. and was not able to give any information about his death. He also accepts that prior to the date when he had gone to the house of M.L.A. Abdul Kalam, he had never seen the other co-accused nor had ever met them. He gained knowledge about their identity only after he heard some persons present in the house of Abdul Kalam taking names of the three accused Shamshul, Gufran and Abdul Wasi. He however knew the name of the present appellant. He had no personal knowledge whatsoever. He was also not able to state that who were the people taking the names of the accused in the house of Abdul Kalam M.L.A. He had seen Ramesh Singh and K.K. Singh at the house of M.L.A. Abdul Kalam. He is also not able to specifically state how and when did he come to know about the identity of appellant Imran Afreen and the fact that he was Congress President. Besides, the motive of murder set up by the prosecution is the accident that took place between the appellant and his associates with the waiter who had gone to bring milk but PW-1 is not an eye-witness of the said altercation. He also admits in his cross examination that immediately after the firing, he had carried his brother to the hospital from where he had gone to the police station to lodge the F.I.R. Thereafter at 2.30 p.m. he went to his house at P.N.T. Colony. Subsequently thereto he did not go to the hotel at all. He received the dead body of his brother on 2.1.2005 at about 2.30-3.00 p.m. He brought the dead body where he used to reside and cremation was performed. When he was questioned by the Court, he was unable to give exact time when he met Bahadur in the hotel. He remained in the hospital till the dead body was brought. He also admits before the Court that he went to the hotel only on 2.1.2005 but he was unable to recollect the exact time. The fact that the motive of the accident was clearly detailed in the F.I.R. which was a prompt report but how and when did he come to know the details of the altercation with Bahadur prior to the incident, could not be substantiated by the said witness. The fact that the motive of the accident was clearly detailed in the F.I.R. which was a prompt report but how and when did he come to know the details of the altercation with Bahadur prior to the incident, could not be substantiated by the said witness. PW-1 further admitted that he had taken the injured brother (deceased) on a Tempo. Only Chandra Shekhar Rai and an employee of the hotel had gone with him and further admits the fact that Manoj alias Bahadur did not accompany him to the hospital. It remains a mystery how the first informant had such a graphic and detailed knowledge about the accident and exchange of abusive words and manhandling by the accused of the waiter. He has also admitted that while they were taking his brother in an injured state to the hospital, a lot of blood had oozed out and his clothes as well as that of Chandra Shekhar were stained with blood but neither did they show it to the Investigating Officer nor any recovery memo was prepared. Several other discrepancies were directly put to the prosecution witness but he has tried to wriggle out of the situation by feigning ignorance. 14. The theory propounded by PW-1 that he had gone to the house of Abdul Kalam Congress leader to pay homage where he came to know the name of the accused and also recognize them, is emphatically challenged on the admission in his cross examination. The witness disclosed that after cremation on 2.1.2005 sometimes in the evening of 2.1.2005, the remaining rituals were performed at Ghazipur. He admits that he had gone to Ghazipur in the night of 3.1.2005. Thereafter he came back and again went to Ghazipur on the next day. He returned in the evening on the same day i.e. 5.1.2005. 15. Sri Dileep Kumar has impressed upon us that if he was not at Varanasi how did he go to the house of Congress leader Abdul Kalam on 5.1.2005 afternoon where he claims to gain knowledge about the name and identity of other co-accused. Our attention has also been drawn to an unequivocal admission by witness that he was interrogated for the first time by police on 8.1.2005 and 9.1.2005. He was also unable to disclose whether there was illumination in the Hotel building on account of new year’s day or presence of any source of light. Our attention has also been drawn to an unequivocal admission by witness that he was interrogated for the first time by police on 8.1.2005 and 9.1.2005. He was also unable to disclose whether there was illumination in the Hotel building on account of new year’s day or presence of any source of light. No light has been shown in the site plan. The witness also admits that he is educated till Intermediate but preferred not to write out the F.I.R. instead the scribe is Girijesh Rai Sharma who has not been produced. An application was given to the District Magistrate on 1.2.2005 to get the appellant medically examined but no name of any other co-accused was mentioned in that application. There is no denial about the fact that Krishna Kumar Singh who is an eye-witness of the F.I.R., is an accused in case crime No. 267 of 2004, Police Station Rohaniya, District Varanasi. The F.I.R. was shown to him and he has admitted that Anil Kumar Singh, S.K. Singh and K.K. Singh (Krishna Kumar Singh) Manager and receptionist Mukesh Singh of Shalimar Hotel are accused. This F.I.R. was registered on an allegation that 24 applicants had come to appear in examination for selection conducted by Railway Board who were staying in the Hotel. Employees of Hotel Shalimar had demanded Rs. 5,000/- each to declare the question paper but despite accepting money, the question paper was not procured and it was for this reason, the murder had taken place and there is a suggestion by defence that the appellant has been falsely implicated at the instance of police. It is also submitted that report of seriologist negates existence of blood at the place of occurrence. No blood was found on the material Ex. Ka-22 and Ka-23. Report of ballistic expert was also negative and it is also not corroborated that fire was resorted by licensed weapon. 16. The next witness is Chandra Shekhar Rai son of Late Mahatam Rai PW-2. He has admitted in his cross examination that he had given his statement under Section 161 Cr.P.C. after 25-30 days of the date of occurrence. He has explained that he had not given the name of any of the accused to the Investigating Officer. 16. The next witness is Chandra Shekhar Rai son of Late Mahatam Rai PW-2. He has admitted in his cross examination that he had given his statement under Section 161 Cr.P.C. after 25-30 days of the date of occurrence. He has explained that he had not given the name of any of the accused to the Investigating Officer. He has also declined from the statement that Indigo Car UP-65X-0002 and Yamaha motorcycle were parked on the right side of road in front of Hotel SHALIMAR from which three accused had alighted and he also declines to give any detail of the incident. He has also expressed his inability regarding knowledge of the fact that three accused were present in the house of Congress leader who died just a few days after the incident. He denies that people present at the house of M.L.A. were the accused calling by their names. He has also stated that while he was going to his house, PW-1 was returning from there at about 1.30-2.00 p.m. on 5.1.2005. This witness has neither tried to give out the story of altercation between waiter Bahadur and accused or the name of the present appellant. He has unequivocally admitted that it was only at a subsequent stage through newspaper he came to know that Imran Afreen is accused in the murder case. On account of his complete denial he has been declared hostile. Thus this leaves ocular evidence of only one witness i.e. PW-1 and real brother of the deceased. 17. Two other eye-witnesses were mentioned in the charge sheet, one Krishna Kumar Singh, Manager of Shalimar Hotel and Ramesh Kumar Singh son of Rajnath Singh who is the owner of building where Shalimar Hotel is situated. These two witnesses had appeared before Juvenile Justice Board in S.T. No. 7 of 2005. The evidence of Krishna Kumar Singh was recorded on 7.4.2007 and Ramesh Kumar Singh on 5.5.2007. Both of them were declared hostile and, therefore, the prosecution has deliberately withheld these witnesses. However, certified copy of their statements is part of the record of the present trial and on its basis Sri Dileep Kumar has laid stress on his argument discarding the ocular version and the complete failure on the part of prosecution to substantiate the allegation against the appellant. 18. The next argument by learned counsel for the defence is that the F.I.R. is ante-timed. 18. The next argument by learned counsel for the defence is that the F.I.R. is ante-timed. PW-4 constable 455 Ram Kishore Sharma has stated in his cross examination after refreshing his memory from G.D. dated 2.1.2005 of the concerned police station that he is not aware that whether any cognizable offence was registered on that date at the police station or not. He is also not aware that which police official and at what time the special report was sent since the G.D. is not available with him, though he admits that G.D. has not been destroyed. There is no entry in the G.D. dated 1.1.2005 regarding any Car brought at the police station concerning the present offence. Though he admits that chik F.I.R. was registered at 23.05 in his own handwriting. S.H.O. was not present at the police station and he had not returned on the said date. He had informed the S.H.O. on Mobile R.T. Set. He had taken one hour in writing out the chik F.I.R. and making G.D. entry and thereafter it was handed over to the first informant PW-1. He has also admitted that special report was being sent by constable 716 Ram Suraj Prasad but after receiving information on telephone by S.O. that case is one under Section 304 I.P.C. therefore, no report is required to be sent. This has been reported in G.D. entry No. 4 dated 2.1.2005 at 00.30 hour. He was not able to confirm as to when the case was converted under Section 304 I.P.C. Vapasi of S.H.O. is reported at 12.10 in G.D. entry No. 24 dated 2.1.2005. S.H.O. returned only at 12 O’ clock afternoon on 2.1.2005. He deposited blood stained earth, plain earth, blood stained shirt, Khokha Kartoos, one mobile set and Indigo Car No. UP-65 X-0002 and one motorcycle No. U.G.Z 2514. There is no mention of deposit of car keys in the G. D. S.I. R.P. Rai was deputed to perform inquest in G.D. No. 46 time 23.05 on 1.1.2005. Papers handed over to him was under Section 302 I.P.C. He has denied suggestion that R.P. Rai was sent to perform inquest after the case was converted under Section 304 I.P.C. However, since R.P. Rai was not examined by the prosecution, he was examined as DW-3 on behalf of defence. Papers handed over to him was under Section 302 I.P.C. He has denied suggestion that R.P. Rai was sent to perform inquest after the case was converted under Section 304 I.P.C. However, since R.P. Rai was not examined by the prosecution, he was examined as DW-3 on behalf of defence. He states that inquest commenced at 8.30 a.m. He further admits that there is overwriting in Section 302 I.P.C. and offence is converted from Section 304 I.P.C. to Section 302 I.P.C. and also that it does not bear signature of any official. He has also accepted that no date was mentioned on any of the letters of the C.O. According to Ex. Ka-16, the case was converted under Section 304 I.P.C. at 12.10 a.m. on 2.1.2005. 19. Learned counsel has placed the inquest and we have examined it closely. It transpires that inquest commenced on 2.1.2005 at 8.30 a.m. and was completed at 10.00 a.m whereas PW-1 admits in his cross examination that Panchayatnama was performed in the afternoon and thereafter the dead body was sent to mortuary. The names of the witnesses of inquest are (1) Girjesh Rai Sharma (2) Prabhat Kumar Rai, (3) Ravindra Rai, (4) Ghanshyam son of Surendra Rai and (5) Krishna Kant Rai. All these discrepancies and anomalies clearly demonstrates and points a finger and leads to an undeniable conclusion that the F.I.R. is ante-timed. 20. Deposition made by PW-6 D.P. Shukla, Inspector Police Station Bhelupur, Varanasi admits to have received information about murder in the intervening night of 1/2.1.2005 on R.T. Set and immediately arrived at the place of occurrence. Thereafter he had made recovery of the blood stained shirt of the deceased which was taken in presence of only Manoj Kumar alias Bahadur and Krishna Kumar Singh. The said shirt is Ex. Ka-6. Site plan was prepared on the direction of Bahadur alias Manoj Kumar which is Ex. Ka-7 and three Khokha Kartoos .32 bore were also recovered in presence of two witnesses namely Bahadur alias Manoj Kumar and Krishna Kumar Singh Ex. Ka-8. Ballistic expert report is Ex. 5, Ex. 6 and Ex. 7 vide EC-1, EC-2 and EC-3. Evidently the ballistic report do not confirm that shots were fired from the recovered weapon. There is no positive report from the ballistic expert and, therefore, the prosecution theory of firing by .32 bore was not substantiated. Ka-8. Ballistic expert report is Ex. 5, Ex. 6 and Ex. 7 vide EC-1, EC-2 and EC-3. Evidently the ballistic report do not confirm that shots were fired from the recovered weapon. There is no positive report from the ballistic expert and, therefore, the prosecution theory of firing by .32 bore was not substantiated. Report of Seriologist also do not confirm that the earth contained human blood. 21. Learned counsel for the appellant has laid emphasis that there was no blood found on the alleged place of occurrence. When PW-6 was cross examined, he has expressed his inability to confirm exact time when he had received information on R.T. Set but states that he reached Kabir Chauraha Hospital at about 10.00 p.m. He had not met PW-1 at the place of occurrence but he had seen him in the hospital. Shirt of the deceased was taken into custody at about 10.00 p.m. The Investigating Officer clearly admits that he had not received chik report at the time when he had taken the shirt in his custody but crime number is mentioned in the recovery memo but in the second breath the Investigating Officer states that he had seen the F.I.R. prior to reaching the place of incident. There is nothing mentioned in the F.I.R. regarding source of light. Waiter Bahadur had not stated anything about light. Site plan also do not show any light. He further admits that he had interrogated Rajnath Singh and his son Ramesh Kumar Singh on the date of incident itself but they had not disclosed that they were eye-witnesses. G.D. does not show that car keys were also deposited at the time when he returned to the police station. The Investigating Officer has denied the suggestion of the defence that the appellant had demonstrated against police including the Investigating Officer prior to the present incident and it is for these reasons he has falsely been implicated. He has also denied that the F.I.R. was given at a very late stage by Girijesh Rai after getting signature from PW-1. Two defence witnesses DW-1 and DW-4 have been examined on behalf of defence who are employees of Hotel Ritz. They have stated that Indigo Car was pulled by police Jeep from the said Hotel since keys were not available. Two defence witnesses DW-1 and DW-4 have been examined on behalf of defence who are employees of Hotel Ritz. They have stated that Indigo Car was pulled by police Jeep from the said Hotel since keys were not available. Both the witnesses have substantiated that Indigo Car was standing in their Hotel from where police had dragged away the car without keys. 22. DW-2 who is Bandi Rakshak of District Jail, Varanasi was examined in support of the argument that Krishna Kumar Singh son of Ram Dulare Singh, Hotel Manager was detained in jail on 5.12.2004 in connection with case crime No. 267 of 2004, under Sections 384, 419, 420, 411 I.P.C. Police Station Rohaniya, District Varanasi and he was released from jail on 22.12.2004. Jail register was produced and entry in the register was proved. This was in support of the argument that Hotel Manager was taken into custody on a report lodged by those 24 residents of Shalimar Hotel who had paid Rs. 5,000/- each for declaring paper of competitive examination conducted by Railway Board. 23. Learned A.G.A. has disputed the aforesaid arguments and submits that the prosecution has very well substantiated the allegation of the F.I.R. by means of testimony of PW-1 and a number of documentary evidence. Though PW-2 has been declared hostile, yet his evidence does not belie the prosecution case. The judgment of the learned Sessions Judge does not call for any interference whatsoever. 24. We have made detailed assessment of the testimony of the witnesses. Apparently only PW-1 is a single eye-witness who happens to be real brother of the deceased. We have therefore analysed his testimony with great caution. Criticism by defence counsel and contradictory stand of PW-1 as pointed out by learned counsel on the face of it, is sufficient to infer that he is not at all a reliable witness. The detailed narration regarding altercation between the waiter Bahadur and accused on the road was not witnessed by PW-1 and he categorically admits that he did not meet Bahadur till time of cremation, besides, the fact that he came to know the names of the accused on 5.1.2005 when he had gone to the house of Congress Leader Abdul Kalam to pay homage. He had seen the appellant present there but also claims that he could not reach his house. He had seen the appellant present there but also claims that he could not reach his house. He overheard the names of the accused whom he had never known before but disclosed their names to the police only on 9.1.2005. He also admits that he had gone to Ghazipur and returned only in the evening of 5.1.2005. He has also stated that inquest was performed in his presence in the afternoon and thereafter dead body was sent for post mortem, this once again negates his presence. He being a literate person had received education till Intermediate but is not able to write out the F.I.R. or even the application given to the Investigating Agency disclosing name of the co-accused after 8 days of the incident. This compels us to arrive at an inevitable conclusion that he was nowhere around the place and time of incident. The prosecution has also withheld Bahadur alias Manoj Kumar, waiter of Hotel Shalimar who was in fact the star witness. The Investigating Officer admits to have prepared site plan at his pointing out, to have met him at the place of incident at the time of recovery. He is conspicuously absent during the trial. Two persons namely Rajnath Singh and K.K. Singh who are again claimed to be eye-witnesses, were examined before Juvenile Justice Board but were declared hostile. Their names figure in the list of witnesses but were withheld in the present trial, is again a mitigating circumstance to lead us to deduction that the prosecution has deliberately withheld material witnesses. PW-1 is not at all reliable. In fact the circumstance makes his presence very doubtful. The assertion that dead body was taken in a Tempo to the hospital is also not substantiated as neither Tempo was shown to the Investigating Officer nor any blood was found. The blood stained clothes of the witnesses were also not shown to the police and every assertion of PW-1 is without support of any substantive evidence. 25. The submission of learned counsel regarding F.I.R. being ante-timed viz. a. viz. discrepancy in the inquest and cuttings and overwriting once again leaves us to arrive an irresistible assumption that time of lodging of the F.I.R. is different. The Investigating Officer has also admitted that after receiving information on his R.T. Set, he arrived at the place of occurrence, prepared site plan and made recovery. a. viz. discrepancy in the inquest and cuttings and overwriting once again leaves us to arrive an irresistible assumption that time of lodging of the F.I.R. is different. The Investigating Officer has also admitted that after receiving information on his R.T. Set, he arrived at the place of occurrence, prepared site plan and made recovery. Thereafter at about 10-10.30 p.m. he reached hospital where he met PW-1 but he had seen the F.I.R. prior to it, is again not convincing. 26. We have also noticed his statement that before recovery memo of blood stained shirt was prepared, the Investigating Officer had not received chik but at the same time admits to have endorsed crime number on the recovery memo of shirt. The Investigating Officer has also admitted to have interrogated PW-1 after lapse of 9 days and PW-2 after 25-30 days. 27. The Apex Court in the case of Gayadin v. State of M.P., (2006) 1 Supreme Court Cases (Cri) 549 ruled that the prosecution witnesses were not examined by the Investigating Officer within reasonable time despite the fact that they were available. The possibility of the witnesses being planted was evident. In the said case, one witness was questioned after 20-22 days and other was questioned after 8 days of the incident. 28. Similarly in the instant case PW-1 has been interrogated after 9 days and PW-2 after 25-30 days. We are conscious of the fact that mistake or lapse in investigation should not be the solitary reason for a judgment of acquittal if there are other circumstance which substantiates the prosecution case. In the instant case, the mistake in investigation is not the only factor. In fact there is nothing to corroborate the allegation of motive given in the F.I.R. for commission of offence. The fact that the alleged single witness of altercation with the accused immediately prior to the incident has also been withheld. The single eye-witness who happens to be real brother of the deceased, is not at all reliable. This is sufficient to arrive at a conclusion that the prosecution has miserably failed to prove its case. On an over all assessment of the prosecution case and an evaluation of the evidence, we are forced to disagree with the judgment of the learned Sessions Judge. His verdict of conviction cannot be upheld. 29. This is sufficient to arrive at a conclusion that the prosecution has miserably failed to prove its case. On an over all assessment of the prosecution case and an evaluation of the evidence, we are forced to disagree with the judgment of the learned Sessions Judge. His verdict of conviction cannot be upheld. 29. In view of what has been stated above, the prosecution has not been able to substantiate the involvement of the appellant in commission of murder and his participation only because there was some altercation between waiter of the Hotel, who has not been examined, and accused that led to killing of the owner of the Hotel. The judgment of conviction recorded by the learned Sessions Judge has no legs to stand. The judgment dated 28.11.2008 passed by the Additional Sessions Judge, Court No. 3, Varanasi in Session Trial No. 245 of 2005, State v. Imran Afreen, is set at naught. The appeal is accordingly allowed. The appellant shall be set at liberty forthwith. 30. Let a copy of this judgment along with lower Court record be sent to the Sessions Judge, Varanasi for compliance. ————