JUDGMENT Hon’ble Mrs. Poonam Srivastav, J.—The instant appeal arises from a judgment and order dated 9.9.2003 passed by the Additional Sessions Judge, Court No. 4, Shahjahanpur in Session Trial No. 1001 of 2002, State v. Arish and others, arising out of case crime No. 327 of 2002, Police Station Sadar Bazar, District Shahjahanpur. 2. Sri Viresh Misra, Senior Advocate assisted by Sri Amit Misra Advocate appears on behalf of the accused and learned A.G.A. for the State. Name of Sri Manish Tiwary Advocate is shown in the cause list on behalf of first informant. Sri Viresh Misra has given a statement before opening his argument that information in writing was tendered to him regarding the appeal being taken out of turn on a special request. Sri Manish Tiwary has communicated in writing that he will not appear in the case for want of instructions. This intimation dated 8.4.2010 is kept on record. 3. The appellants in the instant appeal are Arish son of Anees, Muntazir son of Qadeer Khan, Babu, Rafiq and Rais sons of Bashir. One Sarik son of Anees was also arrayed as an accused but he was not sent up for trial. The appellants are convicted for the offences under Sections 148, 302/149 I.P.C. and awarded sentence of life imprisonment and fine of Rs. 2,000/- each, in default of payment of fine, a further imprisonment of 15 days R.I. under Section 302/149 I.P.C. and R.I. for one year under Section 148 I.P.C. 4. According to the prosecution, the occurrence is alleged to have taken place on 8.8.2002 in between 8.00-8.30 p.m. in the Baithak/Tal of first informant Riyajulla who is brother of the deceased Jiyaullah alias Nanhe Khan son of Natthu Khan. F.I.R. was lodged on the same day i.e. 8.8.2002 at 11.30 p.m. at Police Station Sadar Bazar, Sub District Sadar, District Shahjahanpur. Scribe of the F.I.R. is Mohd. Javed Khan son of Phullu Khan, Resident of Inayatpur, Police Station Nigohi, District Shahjahanpur. The accused Rafiq, Rais and Arif were also tried for the offence under Sections 25/27 Arms Act in Session Trial Nos. 1002, 1003 and 1004 of 2002 arising out of case crime Nos. 330, 336 and 349 of 2002. Tamanchas of 315 bore are alleged to have been recovered from the possession of Rafiq and Arish, and a Tamancha of 12 bore from the accused Rais. 1002, 1003 and 1004 of 2002 arising out of case crime Nos. 330, 336 and 349 of 2002. Tamanchas of 315 bore are alleged to have been recovered from the possession of Rafiq and Arish, and a Tamancha of 12 bore from the accused Rais. All the three accused were given a verdict of acquittal for the offence under Arms Act. 5. The narration detailed in the F.I.R. is that the deceased Jiyaulla was lying down on his cot in front of his Baithak. The complainant, his son Imran and his nephew Shamim were sitting on chairs. The accused are alleged to have arrived from the eastern side armed with weapons. They called out Jiyaullah when the pradhan asked accused Sarik to come and sit on the cot. As soon as they came near Jiyaullah, all the accused started firing from their respective weapons, consequently Jiyaullah Pradhan was injured. The assailants fled away towards north east with their respective weapons. The Pradhan died on way to the hospital. Source of light mentioned in the F.I.R. is a lantern and first informant claims to have recognized the assailants in the light of lantern. 6. Post mortem was performed on the body of the deceased on 9.8.2002 which is Ex. Ka-9 and following ante-mortem injuries were found on his body. (1) F.A. wound of entry of 0.8 cm x 0.5 cm on Rt. side of forehead 2.0 cm above lat. angle of Rt. eye, margins are inverted x brain deep. (2) F.A. wound of exit of 13.0 cm x 3 cm on forehead (..sic..) scalp in midline x communicated to wound No. (1) margins are everted. (3) F.A. wound of entry of 0.5 cm x 0.5 cm x brain deep through & through on Rt. side of face 3.5 cm x ant. to Rt. ear margins are inverted. (4) F.A. wound of exit of 3.5 cm x 3.0 cm on Rt. ant. scalp 5.0 cm above Rt. eye brow (communicated to wound No. (3) margins are everted. (5) Fire arm wound of entry of 4.0 cm x 3.0 cm Lt. lower chest 6.0 cm below Lt. nipple at 6 O’ clock position. Margins are inverted & cavity deep. (6) Multiple F.A. wound of entry in area of 5.0 cm x 4.0 cm on front of lower chest in midline each measuring 0.5 cm x 0.5 cm x cavity deep margins are inverted. lower chest 6.0 cm below Lt. nipple at 6 O’ clock position. Margins are inverted & cavity deep. (6) Multiple F.A. wound of entry in area of 5.0 cm x 4.0 cm on front of lower chest in midline each measuring 0.5 cm x 0.5 cm x cavity deep margins are inverted. (7) Multiple F.A. wound of entry in area of 8.0 cm x 7 cm. on top of Lt. shoulder x muscle deep, measuring 0.2 cm x 0.2 cm margins inverted. (8) Multiple F.A. wound of entry on top of Rt. shoulder in area of 6.0 cm x 5.0 cm x muscle deep. Each measuring .5 x .5 cm margins inverted. (9) F.A. wound of entry of 4.0 cm x 3.0 cm x posterior side of Lt. lower forearm 2.0 cm above wrist joint. Margins are inverted. (10) F.A. wound of exit of 8.0 cm x 4.0 cm through & through communicating to wound No. (9) on Ant. side of Lt. wrist joint margins everted. (11) L.W. of 6.0 cm x 2.0 cm starting from Lt. thumb to middle finger & bone deep. on Lt. hand. (12) F.A. wound of entry of 3.0 cm x 2.0 cm post. side of Rt. hand through & through & bone deep margins inverted. (13) F.A. wound of exit of 5.0 cm x 4.0 cm on front of Rt. wrist joint margin everted. (14) Abrasion of 4.0 cm x 2.0 cm on outer side of Rt. thigh 18 cm above knee joint. One wad piece was recovered from abdominal cavity. 7. The prosecution examined Riyajulla PW-1 and Imran Khan PW-2 as two eye-witnesses. Chhote Lal PW-3 who proved chik F.I.R., Amar Singh PW-4 who performed inquest and challan lash etc., Dr. N.K. Mishra PW-5 who had performed post mortem, Kaushlendra Kumar Singh PW-6 Investigating Officer, Virendra Prasad Saxena PW-7, Lallu Singh PW-8 and Akhilesh Kumar PW-9 are three Investigating Officers who had investigated and made recoveries of the alleged illicit arms from the possession of the accused. Witness Shamim who is also alleged as an eye-witness was not examined by the prosecution. 8. Sri Viresh Misra, Senior Advocate while making a dent in the judgment of conviction has argued firstly that there is stark conflict between oral and medical testimony. Witness Shamim who is also alleged as an eye-witness was not examined by the prosecution. 8. Sri Viresh Misra, Senior Advocate while making a dent in the judgment of conviction has argued firstly that there is stark conflict between oral and medical testimony. He has submitted that all the accused are alleged to have entered from the eastern side and they fired from the same direction while all the witnesses were sitting on the opposite side. It is pointed out that none of the witnesses have received a single injury, even not a stray pellet injury. Injuries on the deceased are on all parts of the body which eventually leaves us to arrive at a conclusion that there was indiscriminate firing from all around and 10-12 shots were fired. This completely belies the theory of shooting only from the eastern side. It is also argued that according to the doctor, injury Nos. 11 and 14 were caused by blunt weapons whereas the prosecution case is consistent about the weapons being fire arm. It is also submitted by Sri Viresh Misra that presence of wad piece shows that it was a point blank shot and not as claimed by the prosecution from 7-8 paces. Recovery of only 4 empty cartridges 315 bore and two 12 bore is also a circumstance which does not fit in the manner of occurrence professed by the prosecution. It is specifically pointed out by learned counsel that till submission of charge-sheet, none of the accused have been assigned any specific weapon in the F.I.R. as well as statement under Section 161 Cr.P.C. Word ‘ASLAHA’ has been used all along up till the stage of trial and it is for the first time specification about the respective weapons have been made evidently on legal advise. The next submission is that all recovery of fire arms were found false. Learned counsel has also stressed on the fact that the accused Muntazir possesses an arm licence for rifle and accused Babu for a DBBL gun. Both the arms were deposited at Shree Krishna Gun House since before the date of incident and absence of report of ballistic expert also negates the story set up by the prosecution 9. The next submission is that there is delay of 3 ½ hours in lodging of the F.I.R. The occurrence took place in between 8.00-8.30 p.m. Sky was cast with black clouds. The next submission is that there is delay of 3 ½ hours in lodging of the F.I.R. The occurrence took place in between 8.00-8.30 p.m. Sky was cast with black clouds. The first informant claims to have reached the police station within 10-20 minutes, though the police outpost was at a distance of 200 paces but none of the witnesses have informed the police outpost. The witnesses were not aware that the police had already arrived at the scene of incident from the police outpost before the Investigating Officer reached the place of occurrence. It is also pointed out that the time of incident shown in the F.I.R. is 8.30 p.m. but during deposition in the trial, the time of incident fluctuated in between 8.00-8.30 p.m. It is also argued that there was no sufficient source of light. PW-1 admits that it was a rainy season and sky was covered with clouds though prosecution claims that lantern was burning but there is no evidence to substantiate that the lantern was in working condition as per the recovery memo. Lantern was never produced in the Court neither by PW-1 nor by the Investigating Officer and none of them have stated that it was functional. On the contrary, the Investigating Officer has unequivocally stated that the investigation did not progress during night because due to paucity of light. The explanation for completing inquest and recovery of blood stained earth, plain earth, lantern, empty cartridges etc. were all completed the next morning. 10. Number of other submissions are that the F.I.R. is ante-timed, investigation is tainted, unfair and do not inspire confidence. There is no immediate motive to commit the offence. The witnesses are not reliable on account of a number of anomalies and discrepancies pointed out by the learned counsel, besides they being partisan and interested. 11. We have evaluated oral as well as documentary evidence and also taken into consideration the arguments advanced by the respective counsel. We proceed to make an assessment of each and every argument advanced on behalf of the defence. The F.I.R. gives a graphic description that the accused arrived from the East as shown in the site plan by single arrow and caused injuries in the Baithak of the deceased while he was lying on a cot. We proceed to make an assessment of each and every argument advanced on behalf of the defence. The F.I.R. gives a graphic description that the accused arrived from the East as shown in the site plan by single arrow and caused injuries in the Baithak of the deceased while he was lying on a cot. The F.I.R. mentions that each of the accused were armed with weapons without giving any details or specification of weapons. Only source of light is lantern which enabled the witnesses to recognize the assailants. The scribe of the F.I.R. is Mohd. Javed Khan who is brother-in-law of deceased’s brother-in-law (Sale Ka Sala). He has come from another village and his presence at the time of lodging of the F.I.R. is not at all convincing. While placing testimony of PW-1 Riyazulla Khan, Sri Viresh Misra has pointed out a number of improvements made in the prosecution story during the trial to some how plug the various lacuna in the prosecution case. The assertion of PW-1 that immediately after the shooting and after the accused had fled away towards north east, he started wailing and became unconscious. After some time i.e. after 1-1 ½ hours he was informed that his brother was dead. Motive is dispute regarding election of Pradhan where the accused Muntazir had supported one Rameshwar and the deceased had supported Mahmood is also a far-fetched one. Mahmood won the election and thus the appellants committed the offence to wreak vengeance. 12. We have noticed that neither Rameshwar is an accused nor he has been produced as a witness and Rameshwar is also nowhere mentioned in the F.I.R. or even in the statement under Section 161 Cr.P.C. This can hardly be a reason or motive for commission of crime. Several other flimsy accusations have been mentioned by PW-1 which can hardly persuade us to accept the prosecution theory and a cause for commission of crime. Thus obviously the MOTIVE attributed is very feeble and cannot be believed. Evidently there was nothing to substantiate the genesis for the crime. 13. The fact that specific weapons were not assigned to any of the assailants as well as his earlier statement that he came to know from others i.e. his brother is dead after regaining consciousness after a lapse of considerable time makes his presence doubtful at the scene of incident. 13. The fact that specific weapons were not assigned to any of the assailants as well as his earlier statement that he came to know from others i.e. his brother is dead after regaining consciousness after a lapse of considerable time makes his presence doubtful at the scene of incident. He has tried to give a very flimsy explanation regarding delay in lodging the F.I.R. that he fainted and only after one or two hours he could understand the impact of the incident. This necessarily implies that PW-1 was not present. The story of PW-1 and PW-2 sitting near the deceased is far from truth. 14. Learned counsel has also pointed out that the deceased himself had a criminal history and was involved in a number of criminal cases. The argument of learned counsel that the deceased was Up Pradhan only for a short period about 15 years back and it was Mahmood who was Pradhan since last three years and the fact that relations between the accused and deceased were apparently cordial according to own showing of the prosecution. It is stated in the F.I.R. itself that when the accused arrived at the place of incident the deceased invited them to come and sit despite they being armed is far from being acceptable. It is also true that father and son are the only two witnesses produced and none of the other villagers had supported the prosecution story. The presence of the witnesses is apparently not conceivable because none of them have received a single injury even from a stray pellet. No chair on which the witnesses claim to be sitting at the time of shooting was recovered. No recovery memo was made of the chairs to corroborate that there was any dent etc. by the indiscriminate shooting, is a clear pointer that two eye-witnesses are speaking anything save the truth. Besides, we have also noticed specific contradictions in the statement of PW-1 and PW-2 viz-a-viz the F.I.R. as well as statement under Section 161 Cr.P.C. from which they were confronted during the trial. According to the F.I.R., the deceased was carried to the hospital for treatment and he died while reaching the hospital. None of the witnesses/villagers who had arrived at the scene of occurrence, informed the police outpost which is only at a distance of 200 paces. According to the F.I.R., the deceased was carried to the hospital for treatment and he died while reaching the hospital. None of the witnesses/villagers who had arrived at the scene of occurrence, informed the police outpost which is only at a distance of 200 paces. PW-2 clearly states that the Investigating Officer had never met him and he was never interrogated. In fact the presence of witnesses as depicted in the site plan and absence of any injury on their person, is difficult to fathom. None of the independent witnesses have come forward to support the prosecution story whereas the village had a number of houses with independent persons residing in close proximity. Shamim was not examined. The claim of PW-1 that the scribe was present next morning but nothing has been said how and when did he come from another village only to pen down the report. The explanation that PW-2 and Shamim had left the place of incident only to inform people and relatives here and there in the night and returned back after 12 hours, substantiates the suggestion of the defence that PW-2 was residing at Delhi and there was sufficient time to come to Shahjahanpur from Delhi. They are not witnesses who can be said to be natural witnesses. Various contradictions are highlighted by learned counsel for the defence as well as conduct and behaviour of the two witnesses at the time of incident and immediately after commission of crime. Their abnormal attitude is evidently against the conduct of a prudent man. PW-1 has tried to give an absolutely different version while assigning specific weapons during the trial, this again compels us to arrive at a conclusion that these two witnesses besides being close relatives are only the two close family members who have come to depose in support of the prosecution case. Their testimony is not at all reliable. 15. Besides the fact that eye-witnesses are not reliable, learned counsel has emphasized that injuries on the body of the deceased do not substantiate the manner of occurrence given out in the F.I.R. and narrated before the Investigating Officer under Section 161 Cr.P.C. The version of the witnesses during the trial is a complete overhauled statement. According to the doctor PW-5, injury Nos. According to the doctor PW-5, injury Nos. 11 and 14 can very well be caused by blunt object as well as a specific assertion that number of injuries on all parts of the body is sufficient to arrive at a conclusion that the injuries were caused from all sides. This admission of the doctor in his cross-examination is once again negation of the prosecution theory and the manner of occurrence. Injury No. 1 is wound of entry and injury No. 2 is exit wound communicating with injury No. 1. This apparently is a rifle injury. Besides, presence of wadding in the abdominal cavity also belies the theory of shooting from 6-7 paces. Thus the manner in which witnesses claim that incident took place stands belied. We have tried to estimate and assess medical evidence viz-a-viz oral evidence recorded during the trial and story given out at the first instance while lodging the F.I.R., we are unable to agree with the conclusion of the trial Court that the incident took place in between 8.00-8.30 p.m. at the place while the witnesses were sitting nearby. We cannot loose sight of the shortcomings of the Investigating Officer which leads us to an irresistible conclusion that the investigation is tainted, unfair and fail to inspire any confidence. A perusal of the statement of PW-2 during the trial, it is apparent that he was never interrogated by the Investigating Officer which he has unequivocally admitted in examination-in-chief itself whereas PW-6 states that he had recorded statement of PW-2 and one Shamim on 27.9.2002 before submission of charge-sheet. Since the Investigating Officer admits that all the proceedings were carried out next morning on account of paucity of light when admittedly the witnesses were not present, this again leads us to a conclusion that site plan prepared was not on the pointing out of the eye-witnesses. Absence of report of ballistic expert on the face of recovery of two licensed and three unlicensed weapons and four empty cartridges cannot be lightly brushed aside. Evidently, it is only PW-1 who has supported the prosecution story and has tried to specify the respective weapons used in the incident with a lot of improvements in his testimony during the trial. This unsuccessful attempt of PW-1 is not worthy of any credence and far from upholding conviction on his solitary testimony. The post mortem also do not confirm the ocular version. This unsuccessful attempt of PW-1 is not worthy of any credence and far from upholding conviction on his solitary testimony. The post mortem also do not confirm the ocular version. The position of contents in stomach and two intestines leads us to an inevitable conclusion that the incident took place sometimes after 2.00-3.00 a.m. besides the opinion of the doctor that injury Nos. 11 and 14 were caused by a hard and blunt object. The prosecution does not claim use of any such object but for fire arms (ASLAHA). Besides, neither inquest nor any recovery memo was prepared by the Investigating Officer after reaching the place of occurrence. He admits that he waited for the next morning, no statement was recorded and the Investigating Officer kept cooling his heals. The Investigating Officer has also not examined the constables of the police outpost of the village. The specific case that the accused fired shots from 7-8 paces while the deceased was lying on a cot, is again a complete contrast from the medical evidence. The firing by a number of accused is the clear case of the prosecution but only four empty cartridges were recovered. There being no pellet embedded on the cot or any other mark on the cot on which the deceased was lying where he had received injuries is yet another circumstance, this leads us to infer otherwise. The Investigating Officer has clearly admitted that case diary is not in his own handwriting, also the fact that he has not recorded the statement of the person who had taken special report. The fact that no cognizable offence was registered at the police station in the night of incident and no signature/LTI of the first informant was obtained on the chik F.I.R. as well as the specific assertion in the inquest that the death has occurred on account of firing by the assailants without naming anyone as an accused, is an additional circumstance which compels us to arrive at a conclusion that the F.I.R. was lodged sometimes in the next morning and it is ante-timed. At least it was not lodged at the time alleged by the prosecution. 16. We have also taken into consideration the fact that the deceased had a criminal history, on the contrary, we are apprised by the defence counsel that none of the accused have any criminal case to their credit. At least it was not lodged at the time alleged by the prosecution. 16. We have also taken into consideration the fact that the deceased had a criminal history, on the contrary, we are apprised by the defence counsel that none of the accused have any criminal case to their credit. This assertion is not disputed by the State. An over all evaluation of the evidence, circumstances of the case and the quality of oral testimony do not inspire confidence. We are of the opinion the prosecution case is not aboveboard and free from doubt. The eye-witnesses are not at all convincing firstly because they are close family members, their presence at the scene of occurrence is not devoid of suspicion, their vacillating stand during cross-examination is enough to categorize the two eye-witnesses trustworthy or wholly reliable to confirm the judgment of conviction, specially when the prosecution has withheld independent witnesses without any plausible explanation. We have observed that testimonies of the two witnesses have varied from time to time with definite improvements with a view to cover the loophole of the prosecution case. We are hesitant to place implicit faith in them and confirm the conclusion of the trial Court. 17. In view of this, we have no option but to arrive and deduce that the prosecution has failed to substantiate its case with clinching, convincing and irresistible evidence. We are therefore of the opinion that appellants are entitled for benefit of doubt. The prosecution has miserably failed to substantiate its case by means of valid and cogent evidence. The judgment of conviction recorded by the learned Sessions Judge has no legs to stand. The judgment and order dated 9.9.2003 passed by the Additional Sessions Judge, Court No. 4, Shahjahanpur in Session Trial No. 1001 of 2002, State v. Arish and 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 concerned Sessions Judge for compliance. ————