JUDGMENT Hon’ble S.C. Agarwal, J.—This criminal appeal is directed against the judgment and order dated 30.4.1982 passed by the 3rd Addl. Sessions Judge, Fatehpur in S.T. No. 571 of 1980, State v. Ram Kripal @ Kallu, whereby the appellant Ram Kripal @ Kallu was convicted under Section 307/34 IPC and sentenced to undergo R.I. for three years. The main accused Ram Raj died during the course of trial in a police encounter on 26.2.1982. 2. The incident took place in the night of 30/31-7-1974 at about mid-night at the tube-well of complainant Sankata (P.W. 3). The FIR was lodged on 31.7.1974 at 2 a.m. at P.S. Ghazipur, District- Fatehpur. The distance of police station from the place of occurrence is one mile. 3. In brief, the prosecution case as contained in the FIR is that on the fateful night, the complainant Sankata (P.W. 3) and Sukh Nandan (P.W. 2) was sleeping at the roof of tube-well of the complainant. At about mid night, accused Ram Raj and Ram Kripal @ Kallu came on the roof. Ram Raj fired at Sankata with intention to kill and caused injuries. On alarm being raised, Bhagwant Raj, Sheetal, Ram Asray (P.W. 1) and others came running and the accused persons ran away towards the east. Sankata got the FIR scribed by Bhagwant Raj and gave it at the police station. On the basis of FIR Ex. Ka-6, case crime No. 191 of 1974 under Section 307 IPC was registered at the police station against Ram Raj and the appellant. The injured was sent for medical examination. Investigation was taken over by Station Officer. The Investigating Officer interrogated the witnesses, inspected the spot, prepared site-plan and after completing the investigation, submitted charge-sheet against both the accused. 4. Charge under Section 307 IPC was framed against Ram Raj and charge under Section 307/34 IPC was framed against the appellant. The appellant denied the charge and claimed to be tried. 5. Prosecution examined three witnesses, namely, Ram Asray (P.W. 1), Sukh Nandan (P.W. 2) and Sankata (P.W. 3) in this case. Ram Asray and Sukh Nandan did not support the prosecution case and turned hostile. The prosecution case rests on the sole testimony of Sankata (P.W. 3). Formal proof of injury report and charge-sheet was dispensed with by the learned counsel for the appellant during trial and therefore, Doctor and the Investigating Officer were not examined. 6. Ram Asray and Sukh Nandan did not support the prosecution case and turned hostile. The prosecution case rests on the sole testimony of Sankata (P.W. 3). Formal proof of injury report and charge-sheet was dispensed with by the learned counsel for the appellant during trial and therefore, Doctor and the Investigating Officer were not examined. 6. The appellant in his statement under Section 313 Cr.P.C. denied the prosecution allegations and claimed that he was falsely implicated in this case on account of enmity. He is the nephew of the complainant and was in service for the last 10 years whereas the children of complainant were unemployed. The complainant was not fair in payment of electricity bill and land revenue. Therefore, his father got the property partitioned and tube-well came to his share. However, the defence did not adduce any oral and documentary evidence. 7. Learned Sessions Judge believed the prosecution version, convicted and sentenced the appellant as aforesaid. 8. I have heard Sri Vikas Singh, learned counsel for the appellant, learned AGA for the State and perused the record. 9. It is submitted by learned counsel for the appellant that no independent witness supported the prosecution case, which rests on the solitary testimony of Sankata (P.W. 3). It is further submitted that the incident took place at mid night and a single fire was shot by co-accused Ram Raj and the complainant must have received the injury while he was asleep and there was no occasion for the complainant to have seen or recognised the appellant. It is further submitted that no role was assigned to the appellant in the FIR and the appellant was most probably incriminated on the basis of suspicion. 10. Admittedly the incident took place in the night of 30/31-7-1974 at about mid-night. It is also not disputed that at the time of incident, the complainant was sleeping on the roof of tube-well. He was medically examined on 31.7.1974 at 11 a.m. at the Ghazipur Dispensary, Fatehpur by Dr. Swatantra Kumar Rastogi, who found following injuries on his person : (1) Gun-shot wound of entry 1/2" x 1/6" x Superficial in skin in right side of abdomen 3. 1/2" above the right iliac crest in the line of anterior superior iliac. Margins inverted and lacerated. Direction not found. No blackening and tattooing. (2) Gun-shot wound 1/2" x below wound No. 1, 1/2" x 1/4". 1/2" above the right iliac crest in the line of anterior superior iliac. Margins inverted and lacerated. Direction not found. No blackening and tattooing. (2) Gun-shot wound 1/2" x below wound No. 1, 1/2" x 1/4". Margins inverted and lacerated. Direction not found. (3) Gun-shot wound 1" below injury No. 2 3/4" x 1/6" x superficial in the skin. Margins inverted and lacerated. Direction not found. (4) Gun-shot wound 3/4" x 1/6" x superficial in the skin 1.1/2" below the injury No. 3 inner side. Margins are inverted and lacerated. (5) Gun-shot lacerated wound 3/4" x 1/6" x superficial in the skin above injury No. 4. Margins not clear. No blackening. (6) Gun-shot wound 1/2" x 1/8" superficial in skin 1" above injury No. 5. Margins not clear. No Blackening and tattooing was found in any of the injury. All the injuries were simple in nature and were caused by fire-arm. Duration of the injuries was about half day. 11. As per the FIR, a single shot was fired by co-accused Ram Raj. A perusal of the injury report also reveals that these injuries could have been caused by a single shot. The appellant is not alleged to have fired at the complainant, though Sankata (P.W. 3) claims that the appellant was also armed with a country- made pistol at the time of incident but this fact has not been mentioned in the FIR. Therefore, the assertion that the appellant was also armed with a fire-arm is an improvement and can hardly be believed. 12. The motive has not been mentioned in the FIR. Regarding motive, the complainant stated that he and Ram Kripal had established a tube-well in partnership. Ram Kripal always insisted for irrigating his field in day time. There was an altercation between him and Ram Kripal and Ram Kripal had hurled abuses on him. 13. The prosecution case is that Ram Kripal got Ram Raj to fire at the complainant. Had it been so, there was no occasion for Ram Kripal to be personally present at the time of incident. The complainant was sleeping at the time of incident. A single shot was fired by Ram Raj. The incident took place within a matter of seconds. After firing the shot, assailant must have run away immediately. There was no occasion for the complainant or the witnesses to see the assailants. 14. The complainant was sleeping at the time of incident. A single shot was fired by Ram Raj. The incident took place within a matter of seconds. After firing the shot, assailant must have run away immediately. There was no occasion for the complainant or the witnesses to see the assailants. 14. Sankata (P.W. 3) has admitted in cross-examination that he and Sukh Nandan (P.W-2) were asleep at the time of incident. When the villagers came on his call, he saw that both the accused were running away with country-made pistols. This statement clearly shows that when this witness saw the assailants they were running away, he must have only seen their back. It does not appear to be probable that he recognised the appellant from his back. 15. I agree with the submission made by learned counsel for the appellant that it is a case of hit and run. The main accused Ram Raj, who fired at the complainant, has died. The only allegation against the appellant is that he was present at the time of incident, when Ram Raj fired at Sankata. The presence of appellant at the time of incident is highly doubtful and his false implication due to enmity cannot be ruled out. 16. In view of the above discussion, I have come to the conclusion that prosecution has not been able to prove its case beyond reasonable doubt and the conviction of the appellant under Section 307/34 IPC cannot be sustained. The appeal deserves to be allowed and the appellant is entitled to the benefit of doubt. Criminal Appeal is allowed. The impugned judgment and order is set aside. The appellant is acquitted of the charge under Section 307/34 IPC. The appellant is on bail. He need not surrender. Let the copy of this judgment alongwith the trial Court’s record be sent to the Court concerned for necessary action within a week. ————