JUDGMENT Hon’ble Mrs. Poonam Srivastav, J.—The instant two appeals arise from a common Session Trial No. 184 of 2001. Appellant Firoz was also sent up for trial for an offence under Section 25 Arms Act in Session Trial No. 185 of 2001. Both session trials were decided together. 2. Appellants have been convicted by learned Additional Sessions Judge, FTC No. 3, Saharanpur vide judgment and order dated 23.2.2005, under Sections 302/34 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. In addition appellant Firoz was convicted under Section 25 Arms Act and sentenced to one year R.I. and fine of Rs.500/-. In default of payment of fine, further imprisonment of three months. The two appellants are father and son. Firoz is son, who is in jail since 25.2.2005. Inam is father and on bail. 3. Incident is alleged to have taken place on 10.12.1999 at 10:00 a.m. in front of the house of accused/appellants in village Dumjheri, Police Station Chilkana, District Saharanpur. First information report was lodged by Mohd. Iliyas PW-2 brother of deceased Mohd. Aslam, on the same day i.e. 10.12.1999 at 10:30 a.m. at Police Station Chilkana, District Saharanpur. Police Station is said to be situated at a distance of 4 kilometres from place of occurrence. 4. Autopsy was performed on the body of deceased Mohd. Aslam by Dr. R.K. Gupta PW-3 on 10.12.1999 at 9:30 p.m. Following ante mortem injuries were found on the body of the deceased, which are detailed hereinbelow : 1. Wound of entry of firearm injury 2 cm x 2 cm x muscle and bone deep over neck back upper part just at hair margin of skull back just at mid point. Blackening and tattooing present around the wound, margins are inverted. 2. Wound of exit of firearm injury 3 cm x 2.5 cm x bone and brain deep over left side of forehead 3.5 cm above left eye brow, margins were everted. This wound is directly communicating with injury No. 1 by a track. On internal examination of the body, fracture of occipital frontal bone and sphenoid and base of skull was present. Brain and its membranes were lacerated and haematoma was also observed. Cause of death of the deceased was due to shock and haemorrhage as a result of ante mortem firearm injuries. 5. On internal examination of the body, fracture of occipital frontal bone and sphenoid and base of skull was present. Brain and its membranes were lacerated and haematoma was also observed. Cause of death of the deceased was due to shock and haemorrhage as a result of ante mortem firearm injuries. 5. Prosecution examined as many as 10 witnesses to substantiate charges levelled against accused persons. There are two witnesses of fact namely Iqram PW-1 and Iliyas PW-2 is first informant, Dr. R.K. Gupta PW-3 performed post mortem. The rest are formal witnesses- Constable Subhash Chand PW-4, S.I. R.K. Awasthi PW-5, Head Constable Shishpal PW-6, S.I. Anand Prakash Bhardwaj PW-7, S.O. Jaimal Singh Negi PW-8, Assistant Director State Forensic Science Laboratory Lucknow Sri Ram Asrey Pandey PW-9 and S.I. Kunwar Singh Bisht as PW10. 6. Prosecution case as detailed in the first information report is that deceased Mohd. Aslam used to work at Pilkhani Depot. On the date and time of occurrence while he was going on his bicycle for his days work, as soon as he reached in front of the house of accused Inam son of Hamid, he was stopped by accused Inam saying that he wants to talk to him and caught hold of the deceased. He instigated his son Firoz and asked him to shoot at Mohd. Aslam. His son Firoz is alleged to have fired from his firearm on his forehead from a very close range, which resulted in his instantaneous death. First information report further discloses that the present incident was witnessed by first informant himself, Iqram PW-1 and Maqsood sons of Majid, Rasid @ Kallu son of Mohd. Mustaq, Munfait son of Mansab and many others. Prosecution claims that first information report was scribed by Jumsaid Ali son of Mohd. Iqram, resident of village Dumjheri, Police Station Chilkana, District Saharanpur. 7. Sri Udai Karan Saxena learned counsel appears on behalf of appellant Firoz and Sri J.S. Sengar learned counsel appears on behalf of appellant Inam and learned A.G.A. appears for the State. 8. Submission at the outset on behalf of defence is that prosecution examined only two eye witnesses, who are interested, partisan and chance witnesses. Independent witnesses in close vicinity of place of occurrence have been deliberately withheld. It is argued that time of incident claimed by prosecution stands belied from medical evidence as well as testimony of witnesses of fact. 8. Submission at the outset on behalf of defence is that prosecution examined only two eye witnesses, who are interested, partisan and chance witnesses. Independent witnesses in close vicinity of place of occurrence have been deliberately withheld. It is argued that time of incident claimed by prosecution stands belied from medical evidence as well as testimony of witnesses of fact. Manner of occurrence alleged by prosecution completely stands negated on the basis of ocular version as well as medical evidence. Conduct of accused is ample proof of the fact that they were not responsible for the murder and have been implicated only because dead body was found in front of their house. Accused are shown to have been arrested from their own house on the same day. Claim of prosecution is that Firoz was taken into custody with the murder weapon in his pocket after quite a long interval and while they were sitting in their house with doors opened. None of the accused attempted to escape, is a circumstance pointed out by the learned counsel for appellants do not stand to reason and so abnormal that a prudent man cannot be expected to behave in such a manner. 8. Allegation in the first information report as well as inquest completely belies injuries found by the doctor at the time of autopsy. It is, therefore, evident that prosecution has blatantly made improvement and tried to alter the prosecution case to somehow wriggle out of glaring infirmity in medical evidence. 9. Learned counsel for appellants have also pointed out that there was no occasion for witnesses to be present at the scene of occurrence. In fact, defence is very emphatic in its assertion that there was no plausible justification for the two eye witnesses to even pass from front of the house of the accused and witness the murder. Witnesses have been cross examined at great length to establish topography of the village, pointing specific house of respective witnesses, route which they would normally adopt to go to the place where they work and also highlighting falsity of their deposition in the Court. 10. Witnesses have been cross examined at great length to establish topography of the village, pointing specific house of respective witnesses, route which they would normally adopt to go to the place where they work and also highlighting falsity of their deposition in the Court. 10. Investigating Officer had not prepared a complete and detailed site plan, therefore, map was prepared at the behest of defence on the basis of statement and specification made by eye witnesses during cross examination only to clarify topography of the scene and around the vicinity where murder took place. 11. The said map is kept on record though it was not exhibited, yet it only elaborates the situation of the house of villagers whose names have been mentioned during course of statement of witnesses and also with a view to topple the claim of the two eye witnesses that they arrived at the place of occurrence while they were going at their respective work places. Sri J.S. Sengar challenges presence of PW-1 & PW-2 at the murder site and has demonstrated that witnesses will take the shortest route and not prefer to go by a longer route only to witness the incident in front of the house of the accused. 12. On perusal of the map, it is evident that PW-1 Iqram resides at a distance of 16 paces from house of one Alim. Alim’s house is situated at the eastern corner from where there is a turn and the straight road goes ahead, after crossing Puliya and Tiraha, it goes towards ‘BAIGANI’ where field of Iqram is situated near graveyard (Kabristan). The other eye witness Iliyas also resides on the eastern side of the village. He is next door neighbour of deceased Aslam and Munfait who is also shown to be an eye witness in the F.I.R. but he was not examined by the prosecution. Normally, he will also take the same road after crossing Kharanja and house of Nadeem pradhan, shop of Mustkim and then take right turn for going to Chilkana and Pilkhani. Therefore, argument of the counsel for the appellants is that two witnesses who are alleged to have witnessed the incident can safely be termed to be chance witnesses and their presence as a coincidence is too suspicious. 13. PW-1 Iqram has admitted that there are 200 houses intervening house of the accused and the witnesses. Therefore, argument of the counsel for the appellants is that two witnesses who are alleged to have witnessed the incident can safely be termed to be chance witnesses and their presence as a coincidence is too suspicious. 13. PW-1 Iqram has admitted that there are 200 houses intervening house of the accused and the witnesses. In fact, learned counsel for the appellants has emphasized that situation of the house of the accused according to witnesses themselves is on the opposite direction. None of the witnesses residing in close proximity to the accused were examined during the trial. Number of witnesses mentioned in the F.I.R. as well as who were interrogated by Investigating Officer were not produced. 14. Besides, PW-2 also categorically states that he was working at Laksar Paddy Mill at the time of occurrence but he was not going on his duty since last two or three days. No reason has been given why he was not going on his duty to Laksar Paddy Mill specially when month of Ramzan had started and the biggest festival of Id was approaching. Claim of PW-2 that he was behind Aslam at the time of shooting and assailant Firoz was in between witnesses and the deceased, is a circumstance which is far from acceptable. PW-1 was questioned, crossed examined extensively as to why he would adopt a route which is far too long from front of the house of accused. Only half-hearted explanation is that there was a puddle of water and mud in front of shop of Mustakim. This is an explanation given for the first time during the trial when witnesses tried to elaborate on the topography of village and to explain the reason for their presence at the scene of occurrence. The route shown in the map is Kharanja, therefore, even if there was some water and mud on the road, it would make no difference. 15. Presence of two eye witnesses is also challenged on the basis of manner of occurrence asserted by the prosecution. The specific case of the F.I.R. is that accused fired on the temple of the deceased from a very close range. This is the description given by witnesses of inquest as well in the opinion of Panches. 15. Presence of two eye witnesses is also challenged on the basis of manner of occurrence asserted by the prosecution. The specific case of the F.I.R. is that accused fired on the temple of the deceased from a very close range. This is the description given by witnesses of inquest as well in the opinion of Panches. None of them have noticed that injury on the temporal region is an exit wound whereas wound of entry is at the back of the neck at mid point adjoining the hair margin. In the autopsy report, blackening and tattooing was also present around the wound of entry on the neck. In the circumstances, if at all PW-2 was standing behind the deceased at the time of firing, injury on the back of the neck could not go unnoticed. 16. Theory propounded in the F.I.R. that Firoz had fired on the head almost touching the forehead is only because when the witnesses arrived and found Aslam dead, they noticed injury only on the front side of the face, even at the time of inquest, no one had noticed injury on the back of neck which appears to be covered with hair region as shown by the doctor in the post mortem report. Since blackening and tattooing was not noticed in the head injury at the time of inquest, theory of contact wound was specifically emphasized in the F.I.R. This is another indicative that F.I.R. is not an immediate version of the incident. House of Iliyas is also situated at a great distance. 17. It is argued by learned counsel appearing for defence that Inam was already standing when Aslam arrived at the place of occurrence then it does not stand to reason why would he not himself shoot Aslam and he will incur the risk of calling his only son Firoz to kill the victim and he himself will be a silent observer. At the time of the incident, Firoz was doing his graduation from Saharanpur, therefore, behaviour of Inam cannot be said to be in consonance with normal human conduct. Yet another circumstance is that if appellants had any intention or plan to kill the deceased why would they choose the place in front of their own house in broad day light. Site plan clearly demonstrates that open area was not far away from their house. Yet another circumstance is that if appellants had any intention or plan to kill the deceased why would they choose the place in front of their own house in broad day light. Site plan clearly demonstrates that open area was not far away from their house. It does not answer judgment of a prudent man to leave his gates open and doors ajar after commission of crime for the entire day especially when police was called by witnesses. The entire villagers had arrived in front of the house and the police had commenced investigation, it is beyond imagination why would the appellants be waiting with the weapon of assault only to be conveniently arrested. In fact, only inference and conclusion one can arrive at is that accused were not the actual persons responsible for murder. 18. Testimony of Dr. R.K. Gupta who proved post mortem report is yet another circumstance which shows that incident had not taken place at the time mentioned in the F.I.R. The stomach of the deceased was found empty. Large intestine was full of faecal matter. Both intestines contained gases. PW-3 has admitted in cross examination that the deceased must have taken food at least 4 to 5 hours before the incident. He had not eased out and condition of his digestive system is akin to the condition when a person wakes up early morning before going to ease himself. Rigor mortis has passed off. Doctor has admitted that death had taken place at least 12 hours before post mortem. There can be variation of 5 to 6 hours either way. 19. So far evidence of PW-5 S.I. R.K. Awasthi is concerned, he has admitted that though information was received by him that accused are inside the house but he made no effort for their arrest. Sub Inspector had reached the place of occurrence i.e. house of accused sometime at 11:00 a.m. but arrest was effected only at 3 O’clock afternoon. Learned counsel for appellants has also stressed on his argument that first information report is ante timed and it was not lodged at 10:30 a.m. 20. PW-6 Head Constable Shishpal proved Chik G.D. No. 15. He has admitted in his cross examination that Circle Officer has perused original G.D. dated 10.12.1999 only on 14.12.1999 which contains report No. 1 to 30. G.D. report No. 22 is recorded at 17:35 hours. PW-6 Head Constable Shishpal proved Chik G.D. No. 15. He has admitted in his cross examination that Circle Officer has perused original G.D. dated 10.12.1999 only on 14.12.1999 which contains report No. 1 to 30. G.D. report No. 22 is recorded at 17:35 hours. When he was confronted that second G.D. No. 22 is recorded at 18:00 hours, he wriggled out of the situation that this mistake is due to inadvertence. He has not been able to explain the reason why signature of Circle Officer was made on 13.12.1999 below Chik report under Sections 302 I.P.C. and 25 Arms Act. This signature and date has been shown below signature of Chief Judicial Magistrate dated 14.12.1999. He has admitted a number of overwriting and change of date from 10.12.1999 to 17.12.1999. The Court had circled two dates with overwriting by red pen though he has denied registration of F.I.R. ante timed but he has not been able to explain these discrepancies. There is no report of ballistic expert in respect of recovered Tamancha from possession of accused Firoz. 21. PW-8 S.O. Jaimal Singh Negi identified Tamancha and cartridges recovered from appellant Firoz. He has tried to evade from conclusive reply when he was questioned that why he did not do anything after receipt of report of ballistic expert which was negative report. Though during his deposition in the Court initially while replying to a query made by the Court that empty cartridges of 315 bore will fit in recovered country made pistol from the appellants. He has also disputed that reply given today is on the basis of legal advise. There are a number of anomalies in the investigation pointed out and highlighted by the defence. 22. We are in agreement with argument of learned counsel for appellants. The entire investigation is not only tainted but fabricated. No time has been shown when investigation commenced. He has also admitted discrepancies pointed out in the case diary. Investigating Officer admits that he did not accompany persons who had come to police station to lodge F.I.R. and only after arriving at the place of occurrence, it came to his knowledge that incident took place right in front of the house of the accused but in spite of it, nothing was done to take them into custody. Investigating Officer admits that he did not accompany persons who had come to police station to lodge F.I.R. and only after arriving at the place of occurrence, it came to his knowledge that incident took place right in front of the house of the accused but in spite of it, nothing was done to take them into custody. He further states that inquest was neither shown in the case diary nor he has noted down the time of commencement of inquest and its completion in the case diary. Explanation given is because the said Parcha was to be sent for the Court, therefore, needful was not done. He has also clearly admitted that in form No. 13, he has not filled up column of time of death. No blood was taken from the place of occurrence and on its basis, challenge of the counsel appearing for defence regarding place of occurrence appears to be justified and not free from doubt. 23. Investigating Officer had also not tried to find out distance between the house of complainant, eye witnesses and place of occurrence. Extensive argument has been advanced in support of contention raised by defence that there was no opportunity for eye witnesses to have arrived at the scene of occurrence. Investigating Officer has also not shown or detailed the house of deceased, witnesses and accused. 24. We have evaluated the prosecution case, evidence adduced, emphatic submissions on behalf of appellants and also examined documentary evidence. On a complete assessment of the entire evidence, we are in agreement that two witnesses who have been produced by prosecution are close family members and they did not reside near or around the vicinity where incident is alleged to have taken place. Though prosecution claims that a number of villagers had arrived at the scene of occurrence, their names were given out in the F.I.R. as well as statements who had allegedly witnessed the murder was recorded by the Investigating Officer but no explanation is coming forth why they have been withheld. 25. Topography of village in respect of which a detailed cross examination has been made by cross examiner to explain specific position of houses of witnesses and also normally path that would be adopted by witnesses and accused to go to their respective work place. 25. Topography of village in respect of which a detailed cross examination has been made by cross examiner to explain specific position of houses of witnesses and also normally path that would be adopted by witnesses and accused to go to their respective work place. It is demonstrated that house of the accused is situated at the other end, which would normally entail a longer way to reach their respective destination coupled with absence of blood from the place of incident leaves us to arrive at a conclusion that place of occurrence is far from conclusive as pointed out by prosecution, therefore, defence has successfully raised a doubt regarding the place of incident, presence of eye witnesses and manner of murder. This conclusion is also on account of another circumstance i.e. ante mortem injuries shown in the post mortem report. 26. Wound of entry is on the back side of neck and exit wound is on the forehead whereas specific case of eye witnesses as well as in the F.I.R. is that shooting was resorted from point blank range on the forehead. Inquest report also shows only a single injury on the left side of the head which was an exit injury. Besides, stomach and intestine contents also leaves us to a deduction that it was sometimes before the deceased had eased out early morning. 27. Argument of learned A.G.A. that it was month of Ramzan and, therefore, the deceased must have taken food sometimes round about 5:30 to 6:00 a.m. once again is neither asserted by prosecution nor stomach will be empty, and small intestine will contain only gases and large intestine will be full of faecal matter. This position of digestive system will only be sometimes earlier than the time given in the F.I.R. 28. If we accept contention of learned A.G.A. that it was month of Ramzan and the deceased had taken food early morning. This leaves us wondering that if he was going for his work then he would definitely ease out before getting out of the house. This is a circumstance which cannot go unnoticed. The conduct of the accused is another reason for us to ponder that the incident had not taken place in front of house of the appellants. This leaves us wondering that if he was going for his work then he would definitely ease out before getting out of the house. This is a circumstance which cannot go unnoticed. The conduct of the accused is another reason for us to ponder that the incident had not taken place in front of house of the appellants. In case we are to believe what prosecution professes then appellants would not choose the place to commit murder right in front of their house and if incident did take place then they would not remain for the entire day with murder weapon in their pocket inside the house with doors completely open to welcome the police and villagers only to be arrested and face inevitable consequences. 29. All theses factors do not inspire confidence in the prosecution version. Two witnesses examined on behalf of prosecution are also not worthy of any credence. Their testimony is laced with contradictions, discrepancies and there is no homogeneous statement by the two of them. If we compare medical evidence, manner of investigation and ocular version during the trial, we arrive at an irresistible deduction that prosecution is not telling the entire truth. These number of loopholes lead us to form an opinion that prosecution has tried to concoct its case and failed to substantiate by valid and cogent evidence. We, therefore, conclude that the prosecution has completely failed to establish its version with slightest degree of certainty. 30. In view of what has been stated above, we find it difficult to uphold verdict of conviction. The judgment of conviction recorded by learned Additional Sessions Judge, FTC No. 3, Saharanpur, has no legs to stand. The appellants are entitled for benefit of doubt. The judgment and order dated 23.2.2005 passed by learned Additional Sessions Judge, FTC No. 3, Saharanpur, is 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 learned Sessions Judge, Saharanpur for compliance. ————