JUDGMENT [Per : Hon’ble Prafulla C. Pant, J. (Oral)] This appeal, preferred under Section 374 of the Code of Criminal Procedure, 1973 (for short Cr.P.C.), is directed against the judgment and order dated 15th of March, 1999, passed by II Addl. Sessions Judge, Haridwar, in Sessions Trial No. 70 of 1998, whereby accused/appellant Pramod Tyagi has been convicted under Section 302 read with Section 34 of the Indian Penal Code, 1860 (for short I.P.C.), and sentenced to imprisonment for life. 2. Heard learned counsel for the parties and perused the lower court record. 3. Prosecution story, in brief, is that on 12.12.1996, at about 10:00 A.M., accused/appellant Pramod Tyagi alongwith Munesh Tyagi and Pawan Tyagi @ Sunil came to the house of Vijay Pal (deceased) in Village Hathiathal, and took him with them. It is alleged that P.W.2 Mange Ram, while coming from Roorkee to his village Hathiathal, near the ‘CHARHI’ (cane crusher), saw that accused Munesh had caught Vijay Pal, and accused/appellant Pramod Tyagi and another accused Pawan Tyagi @ Sunil fired shots at Vijay Pal, who died on the spot. The prosecution case is that P.W.2 Mange Ram informed P.W.1 Chandra Shekhar (complainant and brother of the deceased) in village Peer Majra about the incident. Thereafter, on 13.12.1996, at about 12:30 P.M., P.W.1 Chandra Shekhar lodged the first information report which was registered as Crime No. 303-A of 1996, at police station Manglaur, District Haridwar. 4. It is pertinent to mention here that before aforesaid report was lodged against accused Pramod Tyagi and others, co-accused Munesh on this case, had already got lodged first information report against Vijay Pal (deceased) and his associates, at 10:30 P.M. (soon after the incident) stating Vijay Pal (deceased) alongwith his associates had come to the ‘CHARKHI’ (cane crusher) of Pramod, attempted to extort money, and tried to drag Pramod Tyagi (present accused/appellant), on which co-accused Munish Tyagi fired shots at Vijay Pal, who died on the spot. Perusal of check report (Ext. A-5) of said first information report lodged against Vijay Pal and his associates, relating to offences punishable under Section 386, 364-A, 307, 511, was registered as Crime No. 303 of 1996. On 13.12.1996, at 06.30 A.M., police had taken the dead body of Vijay Pal in their possession, and inquest report (Ext. Perusal of check report (Ext. A-5) of said first information report lodged against Vijay Pal and his associates, relating to offences punishable under Section 386, 364-A, 307, 511, was registered as Crime No. 303 of 1996. On 13.12.1996, at 06.30 A.M., police had taken the dead body of Vijay Pal in their possession, and inquest report (Ext. A-7) was prepared by P.W.8 Sub Inspector Nanhey Ram (i.e. before first information report of this case was lodged against present accused). 5. Both the cross cases were investigated by P.W.10 Sub Inspector Mahesh Chandra till 15.12.1996, where after further investigation was done by P.W.11 Dy. S.P. Surendra Singh Chauhan, who submitted final report in respect of Crime No. 303 of 1996, lodged from the side of present accused, and submitted charge sheet (Ext. A-23) against accused/appellant Pramod Tyagi and co-accused Munesh Tyagi, for their trial in respect of offences punishable under Section 302 of I.P.C., and one punishable under Section 3(1)(x) and 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 6. The Magistrate, on receipt of the charge sheet, after giving necessary copies to the accused, as required under Section 207 of Cr.P.C., appears to have committed the case to the court of sessions for trial. Learned II Addl. Sessions Judge on 09.03.1998, after hearing the parties, framed charge of offence punishable under Section 302 read with Section 34 of I.P.C., and one punishable under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, to which accused Pramod Tyagi and other co-accused pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W.1 Chandra Shekhar (informant and brother of the deceased); P.W.2 Mange Ram (sole eyewitness); P.W.3 Dr. Pradeep Kumar (who conducted the postmortem examination); P.W. 4 Smt. Kunti (widow of the deceased); P.W.5 Ramesho (wife of the informant); P.W.6 Head Constable Rajendra Prasd; P.W.7 Sub Inspector Pitamber Dutt (Arresting Officer); P.W.8 Sub Inspector Nanhey Ram (who prepared the inquest report); P.W.9 Constable Satish Chandra; P.W.10 Sub Inspector Mahesh Chandra (who started the investigation); P.W.11 Dy. S.P. Surendra Singh Chauhan (who concluded the investigation); P.W.12 Sub Inspector Bhawar Singh, and P.W. 13 Constable Mohan Lal. The oral and documentary evidence was put to the accused Pramod Tyagi under Section 313 of Cr.P.C., who pleaded that evidence produced by prosecution is false. S.P. Surendra Singh Chauhan (who concluded the investigation); P.W.12 Sub Inspector Bhawar Singh, and P.W. 13 Constable Mohan Lal. The oral and documentary evidence was put to the accused Pramod Tyagi under Section 313 of Cr.P.C., who pleaded that evidence produced by prosecution is false. He further pleaded that the police has submitted wrong final report on the first information report lodged by Munesh Tyagi against the deceased and his associates. However, no evidence in defence, appears to have been adduced. The trial court, after hearing the parties, found that the prosecution has successfully proved charge as against accused Pramod Tyagi and Pawan Tyagi @ Sunil, relating to offence punishable under Section 302 read with Section 34 of I.P.C. As against Munesh Tyagi, the trial court found that charge against him was not successfully proved by the prosecution. After hearing on sentence, the trial court sentenced each of the convicts to imprisonment for life. (Accused/convict Pawan Tyagi @ Sunil, who filed Criminal Appeal No. 926 of 2001, died during the pendency of appeal, and his appeal stood abated on 29th of September, 2010). Aggrieved by judgment and order dated 15.03.1999, passed by II Addl. Sessions Judge, Haridwar, in Sessions Trial No. 70 of 1998, convict Pramod Tyagi filed this appeal before the Allahabad High Court on 22.03.1999, where the same was admitted on 23.03.1999. The appeal is received by this court under Section 35 of the U.P. Re-organization Act, 2000 (Central Act No. 29 of 2000), for its disposal. 7. Before further discussion, we think it just and proper to mention here the ante mortem injuries found on the dead body of Vijay Pal by P.W.3 Dr. Pradeep Kumar, who conducted postmortem examination on 13.12.1996, at about 01:45 P.M., and prepared autopsy report (Ext. A-2). The ante mortem injuries, recorded in the autopsy report, read as under: “(i) Firearm wound of entry 3 cm x 2 cm x brain cavity deep on the left side temple of head 2 cm behind and above the outer angle of left eye. Margins inverted. Blackening and tattooing present. Brain matter coming out of wound. There is fracture of the temporal, parietal and frontal bone communicated. (ii) Firearm wound of exit 4 cm x 2.5 cm x brain cavity deep on the right side head 3 cm behind right ear. Margins everted. Brain matter coming out of wound. Margins inverted. Blackening and tattooing present. Brain matter coming out of wound. There is fracture of the temporal, parietal and frontal bone communicated. (ii) Firearm wound of exit 4 cm x 2.5 cm x brain cavity deep on the right side head 3 cm behind right ear. Margins everted. Brain matter coming out of wound. Plastic wad one recovered from brain matter sealed and handed over to the accompanying constable. There is fracture of parietal and occipital bones, both communicated. Injury is communicating with injury No. (i). (iii) Firearm wound of entry 3 cm x 1.5 cm x muscle cavity deep on the lower part of left ear. Ear pinna lacerated. Margins inverted. Blackening and tattooing present. There is fracture of lower jaw at multiple places underlying muscles and blood vessels lacerated. (iv) Firearm wound of exit 4.5 cm x 3.5 cm x mouth cavity deep on the left side face on the middle of angle of mandible. 3 cm of angle of the mouth. Margins everted. Communicating fracture of lower jaw bone. Injury communicated to injury No. (iii). (v) Multiple firearm wound of entry and grazing x muscle deep on the back of lower part of chest and abdomen in an area of 35 cm x 18 cm. Each measuring from 0.25 cm x 0.25 cm to 2.5 cm x 0.25 cm Blackening and tattooing not present. Four metallic pellets recovered from the wound sealed and handed over to the accompanying constable. The Medical Officer opined that the deceased had died due to shock and haemorrhage, as a result of ante mortem firearm injuries. From the medical evidence on record it is establihsed that Vijay Pal died homicidal death on 12.12.1996. Now, we have to examine whether the prosecution has successfully proved that accused/appellant Pramod Tyagi and accused Pawan Tyagi @ Sunil (since deceased), with common intention, committed murder of Vijay Pal, or not. 8. We have already discussed above that there are cross versions of the incident reported by each side at the police station. The first information report lodged on behalf of the present accused by Munesh Tyagi was given at police station at 10:30 P.M. on 12.12.1996 (soon after the incident). The first information report lodged against the present accused in respect of the same incident was given in the police station on next day i.e. 13.12.1996, at 12:30 noon. The first information report lodged on behalf of the present accused by Munesh Tyagi was given at police station at 10:30 P.M. on 12.12.1996 (soon after the incident). The first information report lodged against the present accused in respect of the same incident was given in the police station on next day i.e. 13.12.1996, at 12:30 noon. The version given by the present accused side at the police station is that Vijay Pal (deceased) along with his associates came at his CHARKHI (cane crusher) in village Tansipur, and attempted to extort Rs. 50,000/- and started dragging Pramod Tyagi (present accused/appellant), on which his brother Munesh fired shots from a gun. It is corroborated from the Chemical Examiner’s report on record that the gun which is said to have been recovered from Munesh Tyagi was used in the crime, as the cartridges found at the spot were fired from said weapon. However, that by itself does not help the prosecution in the present case for as per the story of the present accused side fires were shot from a gun by the brother of the accused, after the deceased and his associates tried to extort money, and started dragging Pramod Tyagi. What we have to examine is whether the incident has taken place in the manner suggested by the prosecution, or not. 9. P.W.1 Chandra Shekhar (brother of the deceased) is the complainant. Admittedly, he did not witness the incident himself, but says that he was told about the incident by Mange Ram (P.W.2) and Naresh Chand (not examined). P.W.1 Chandra Shekhar has admitted that the deceased has criminal history. 10. P.W.2 Mange Ram, who is sole eyewitness examined on behalf of the prosecution, states that on 12.12.1996, at about 09:45 P.M. he was coming from Roorkee when he saw Munesh Tyagi catching hold of Vijay Pal and Pawan Tyagi firing shot at him (Vijay Pal). On close scrutiny of the statement made by this witness, we find his testimony does not inspire confidence. The address of this sole eyewitness shows that he belongs to village Hathiathal. The incident had taken place in village Tansipur. (The deceased belongs to village Hathiathal). The presence of the present witness i.e. P.W.2 Mange Ram is not natural at the spot in the odd hours of the night. The address of this sole eyewitness shows that he belongs to village Hathiathal. The incident had taken place in village Tansipur. (The deceased belongs to village Hathiathal). The presence of the present witness i.e. P.W.2 Mange Ram is not natural at the spot in the odd hours of the night. No source of light has been disclosed by this eyewitness in which he could see that Vijay Pal was being killed by Pramod Tyagi and Pawan Tyagi @ Sunil. It has come in the statement of P.W.8 Sub Inspector Nanhey Ram that after the first information report was lodged by Munesh Tyagi against Vijay Pal and others, inquest report could not be prepared at the spot, as there was no light. Apart from this, had P.W.2 Mange Ram seen the incident, he could have easily lodged first information report at police station Manglaur, which was on way from the place of incident to his village Hathiathal. It has come to the record that and admitted by P.W.2 Mange Ram himself that he was a co-accused with the deceased in another criminal case. The veracity of statement made by this witness, as such, unless corroborated from other evidence on record, cannot be said to be sufficient to prove the fact that accused/appellant Pramod Tyagi committed murder with common intention with Pawan Tyagi @ Sunil of Vijay Pal as stated by him. 11. P.W.4 Smt. Kunti (widow of deceased) and P.W.5 Ramesho (wife of informant) simply state that at 10:00 A.M., on 12.12.1996, accused/appellant Pramod Tyagi and others took Vijay Pal with them. Both these witnesses have stated that Chandra Shekhar (P.W.1) had gone to village Peer Majra on that day to attend marriage of son of his maternal uncle. The two witnesses state that Mange Ram informed about the incident to Chandra Shekhar in village Peer Majra. Again, the statement of these two witnesses appears to be doubtful as it gets contradicted from the statement of P.W.10 Sub Inspector Mahesh Chandra and P.W.11 Dy. S.P. Surendra Singh Chauhan, who state that after the first information report was lodged by Munesh Tyagi against Vijay Pal (deceased) and his associates at 10:30 P.M. on 12.12.1996, at about midnight, Sub Inspector Barjoor Singh was sent to the house of the deceased to inform about the incident, and Chandra Shekhar was at his house. S.P. Surendra Singh Chauhan, who state that after the first information report was lodged by Munesh Tyagi against Vijay Pal (deceased) and his associates at 10:30 P.M. on 12.12.1996, at about midnight, Sub Inspector Barjoor Singh was sent to the house of the deceased to inform about the incident, and Chandra Shekhar was at his house. As such, the explanation of P.W.4 Smt. Kunti and P.W.5 Smt. Ramesh that information was given to Chandra Shekhar by Mange Ram in village Peer Majra get belied from the statement of P.W.11 Dy. S.P. Surendra Singh Chauhan. 12. We also think it relevant to mention here that in the statement of P.W.8 Sub Inspector Nanhey Ram, who prepared the inquest report, it has come that a country made pistol was also found by the side of dead body of the deceased. The prosecution has not given any explanation as to recovery of said pistol by the side of the deceased. 13. Having re-assessed the entire evidence on record, we are of the view that the trial court has erred in law in holding, in the above circumstances, that prosecution has successfully proved charge of offence punishable under Section 302 read with Section 34 of I.P.C. against accused/appellant Pramod Tyagi and Pawan Tyagi @ Sunil. In our opinion, as discussed above, the prosecution has failed to prove the charge beyond reasonable doubt, and conviction of the accused/appellant Pramod Tyagi is liable to be set aside. Accordingly, the appeal is allowed. The conviction and sentence recorded by II Addl. Sessions Judge, Haridwar, in Sessions Trial No. 70 of 1998, against accused/appellant Pramod Tyagi, relating to offence punishable under Section 302/34 of I.P.C., is set aside. He is acquitted of the charge. He is on bail. He need not to surrender. His bail bonds are cancelled and sureties discharged. Lower court record be sent back.