JUDGMENT [Per : Hon’ble Prafulla C. Pant, J. (Oral)] 1. This appeal, preferred under Section 374 of Code of Criminal Procedure, 1973 (for short CrPC), is directed against judgment and order dated 14.1.1998, passed by II Addl. Sessions Judge, Nainital in Sessions Trial No. 255 of 1990, whereby the accused appellants, namely, Hindbir Singh alias Guddu, Azadbir Singh alias Dabbu, Om Prakash alias Kalu, Dinesh Kumar alias Maissy, Kishan Lal alias Pappu and Devendra were convicted under Sections 148, 302/149 and 307/149 of Indian Penal Code, 1860 (for short, IPC). Each one of the convicts has been sentenced to rigorous imprisonment for a period of two years under Section 148 IPC, imprisonment for life under Section 302/149 IPC, and rigorous imprisonment for a period of three years under Section 307/149 IPC. 2. Heard learned counsel for the parties, and perused the lower court record. 3. Prosecution story, in brief, is that PW1 Manjit Singh (complainant) lodged First Information Report (ExhibitAl) at Police Station Kashipur (earlier Police Station was a part of District Nainital, now is a part of District Udham Sigh Nagar) on 3.6.1990 at 11:20 a. m. stating that on said day at about 10:15 a.m. Sukhvinder Singh (deceased), brother of the complainant, along with his driver Vijay Pal (not examined) were going towards field in Village Pratappur. When they reached near house of Babu Singh, accused appellant Kishan Lal armed with axe and other five accused, namely, Hind Veer, Azad Veer, Om Prakash and Dinesh Kumar armed with country made pistols, with intention to commit. murder of Sukhvinder Singh, surrounded him and fired at him. Sukhvinder Singh raised alarm, at which PW1 Manjit Singh (complainant), PW2 Rupendra Singh, PW3 Nirmal Singh and other persons came at the spot. After Sukhvinder Singh got injured, he was dragged by the accused appellants to the house of Babu Singh, where more shots were fired at him and Sukhvinder Singh died of the injuries. In the incident, Driver Vijay Pal was also got injured. After the incident, the accused appellants ran away in a tractor belonging to Lalit Bakshi. The complainant has alleged in the First Information Report that the accused appellants had enmity with Sukhvinder Singh. In the incident, Driver Vijay Pal was also got injured. After the incident, the accused appellants ran away in a tractor belonging to Lalit Bakshi. The complainant has alleged in the First Information Report that the accused appellants had enmity with Sukhvinder Singh. On the basis of report (Exhibit A-1), check report ((Exhibit A-18) was prepared by the police and Crime No. 445 of 1996 was registered relating to offence punishable under Sections 147, 148, 149, 302, 307/34 IPC against as many as nine accused, namely, Hindbir alias Guddu, Azadbir alias Dabbu, Om Prakash alias Kallu, Dinesh Kumar alias Maissy, Kishan La! alias Pappu, Paramjit Singh, Lalit Bakshi, another Dinesh alias Shishu and one brother-in-law of Guddu (Devendra Singh). The investigation was taken up by PW8 Sub Inspector Rajendra Prasad Sharma. After the case was registered at Police Station, the police party went to the spot and took dead body of the deceased in the possession, and prepared inquest report (ExhibitA-2) and other necessary papers, namely, Police Form No. 13 (ExhibitA-8), sketch of the dead body (Exhibit A-9), letter of Chief Medical Officer (Exhibit A-7) requesting for post-mortem examination. The dead body was sent for post-mortem examination. PW6 Dr. E.U. Siddiqui conducted post-mortem examination on the dead body of Sukhvinder Singh on 4.6.1990 and prepared Autopsy Report (ExhibitA-4). In said report, as many as eight injuries were mentioned by the Medical Officer, including one gun-shot injury on the head of the deceased. PW6 Dr. E.U. Siddiqui opined that the deceased had died of brain injury, due to ante-mortem injury. Meanwhile, witnesses were interrogated, and site plan (Exhibit A-6) was prepared by the Investigating Officer. During investigation, after arrest of the accused, country made pistols were allegedly recovered from accused appellants Hindbir alias Guddu; Azadbir Singh alias Dabbu, Om Prakash alias Kallu and Dinesh Kumar alias Maissy. Recovery memos were prepared in respect of the said recovery. Separate crimes were registered against four accused relating to offence punishable under Section 25 of the Arms Act. After completion of investigation, the Investigating Officer submitted charge-sheet (ExhibitA-15) against accused appellants Hind Veer, Azad Veer, Om Prakash, Dinesh Kumar and another charge-sheet (Exhibit A-1 6) against accused Kishan Lal, Paramjit Singh, Lalit Bakshi and Dinesh Kumar alias Shishu. A third charge-sheet (ExhibitA-17) was filed against accused Devendra Singh. 4. After completion of investigation, the Investigating Officer submitted charge-sheet (ExhibitA-15) against accused appellants Hind Veer, Azad Veer, Om Prakash, Dinesh Kumar and another charge-sheet (Exhibit A-1 6) against accused Kishan Lal, Paramjit Singh, Lalit Bakshi and Dinesh Kumar alias Shishu. A third charge-sheet (ExhibitA-17) was filed against accused Devendra Singh. 4. On receipt of the charge-sheets, the Magistrate, after giving necessary copies, committed the case to the Court of Sessions for trial. Learned trial court (II Additional Sessions Judge, Nainital), after hearing the parties, framed charge of offences punishable under Sections 148, 302/149 and 307/149 IPC against accused Hindbir alias Guddu, Azadbir Singh alias Dabbu, Om Prakash alias Kallu and Dinesh Kumar alias Maissy on 13.5.1991, to which they pleaded not guilty, and claimed to be tried. Similar charges were framed against accused Kishan Lal and Devendra Singh of offences punishable under Section 120B IPC. Charge under Section 120B IPC appears to have been framed against other accused. All the accused pleaded not guilty and claimed to be tried. On this, prosecution got examined PW1 Manjit Singh (complainant), PW2 Rupendra Singh, PW3 Nirmal Singh, PW4 Sub Inspector R.S. Khagwal, PW5 Lakhvinder Singh, PW6 Dr. E.U. Siddiqui, PW7 Rajendra Singh, PW8 Sub Inspector Rajendra Prasad Sharma (Investigating Officer), PW9 Dr. R.A. Gupta, and PW10 Ram Asray Pandey. The oral and documentary evidence were put to the accused, to which they alleged that they have falsely been implicated due to enmity. No evidence in defence were adduced. The trial court after hearing the parties found that the prosecution has successfully proved the charge of offences punishable underSections 148, 302/149 and 307/149 IPC against accused appellants Hindbir alias Guddu, Azadbir alias Dabbu, Om Prakash alias Kallu, Dinesh Kumar alias Maissy, Kishan Lal alias Pappu and Devendra Singh. After hearing on sentence, each one of them sentenced to imprisonment for life under Section 302/149 IPC, rigorous imprisonment under Section 148 IPC, and-rigorous imprisonment for three years under Section 307/149 IPC. Aggrieved by said judgment and order dated 14.1998, passed by IIAddl. Sessions Judge, Nainital in Sessions Trial No. 255 of 1990, this appeal was preferred by the victims before the Allahabad High Court, fromwhere it was received under Section 35 of U.P. Re-organisation Act, 2000 (Central Act No. 29 of 2000), for its disposal. 5. Before further discussion, we think it just and proper to mention the ante-mortem injuries recorded by PW6 Dr. 5. Before further discussion, we think it just and proper to mention the ante-mortem injuries recorded by PW6 Dr. E.U. Siddiqui, at the time of post-mortem examination on the dead body of SukhvinderSingh, on 4.6.1990. The said Medical Officer in the Autopsy Report (ExhibitA-.4) has recorded as many as following ante mortem injuries: 1. One gun-shot injury of entry on left side of face extending from temple to angle of mouth and tragus of ear left to middle of eye brow 15cm X 15cm going deep towards right side, blackening present at the margin. In the depth (i.e. fracture found in) fontal, parietal, maxillary bone and mandible of left side. Damage to palate was present. Two metallic pellets recovered from depth of wound near right side of neck (no wound of exit). 2. Multiple spotted areas size .05 cm to .1 cm x .05 cm x .1 cm on whole upper face, black in colour. 3. Multiple abraded contusion size 1 cm x 1 cm to .5 cm x .5 cm on the inner aspect of left upper arm in the shoulder. 4. Lacerated wound, blackening around, size 1 cm x .5 cm x 1 cm on left side of chest 15 cm below and middle to shoulder tip. 5. Lacerated wound, blackening around .5 cm x .5 cm. x .5 cm 1.5 cm above injury no. 1. 6. Abraded contusion .5 cm x .5 cm, 2.5cm below inner to injury no.1. 7. Incised wound 5 cm x 2 cmx bone deep tibia. Bone cut on the lower left leg, approximately 2 cm above ankle. 8. Incised wound 3 cm x 1½ cm x .5 cm, 4 cm above injury no. 7. 6. The Medical Officer (PW6) Dr. E.U. Siddiqui has opined in the Autopsy Report (ExhibitA-4) that Sukhvinder Singh has died of brain injury, due to ante-mortem injuries. From the above medical evidence, it is established on record that on 3.6.1990 Sukhvinder Singh died homicidal death. Now, we have to examine, whether he was murdered by the accused appellants with the common object, for which they were charged, or not. It is further to be seen, whether the accused appellants, with common object, attempted to commit murder of Vijay Pal, or not. This Court has to further examine, whether the accused appellants formed unlawful assembly with deadly weapons, or not. 7. It is further to be seen, whether the accused appellants, with common object, attempted to commit murder of Vijay Pal, or not. This Court has to further examine, whether the accused appellants formed unlawful assembly with deadly weapons, or not. 7. As far as charge relating to attempt to commit murder of Vijay Pal is concerned, prosecution did not get examined Vijay Pa!, for the reasons best known to it. Without there being statement recorded before the court, relating to said witness, on the basis of evidence of other witnesses, namely, PW1 Manjit Singh, PW2 Rupendra Singh and PW3 Nirmal Singh, it cannot be said that the prosecution has successfully proved the charge relating to offence punishable under Section 307 read with Section 34 IPC against the accused appellants. 8. It is pertinent to mention here that the incident has taken place in Village Pratap Pur, but PW2 Rupendra Singh belongs to Village Bhagwanpur and PW3 Nirmal Singh belongs to Village Jurka. Their presence in Village Pratap Pur does not appear to be natural and their testimony does not inspire confidence. There is not a single eye-witness of the alleged day-light incident of Village Pratap Pur, except PW1 Manjit Singh (complainant). 9. We have carefully gone through the statement of PW1 Manjit Singh, who is brother of deceased Sukhvinder Singh. He has fully supported the prosecution story. He has further proved that he lodged First Information Report (ExhibitA-1), and also witnessed the preparation of the Inquest Report (ExhibitA-2) by the police. According to this witness, he knows all the accused appellants. He has further stated that the accused appellants had enmity with the deceased. The witness further states that on 3.6.1990, at about 10:15 a.m., he along with his brother Sukhvinder Singh and Driver Vijay Pal was going towards field, when accused appellants Kishan Lal armed with axe, Hindbir Singh alias Guddu, Azadbir Singh alias Dabbu; Om Prakash alias Kallu, Dinesh alias Maissy and Devendra Singh, all armed with country made pistols, came out of house of Babu Singh and fired a shot at Sukhvinder Singh. Sukhvinder Singh suffered injury. According to PW1 Manjit Singh, thereafter, accused appellants dragged Sukhvinder Singh towards house of Babu Singh. He has further stated that Sukhvinder Singh was also assaulted with axe. Sukhvinder Singh suffered injury. According to PW1 Manjit Singh, thereafter, accused appellants dragged Sukhvinder Singh towards house of Babu Singh. He has further stated that Sukhvinder Singh was also assaulted with axe. The witness further states that his brother Sukhvinder Singh was murdered by the accused appellants, who were in conspiracy with accused Paramjit Singh, Dinesh alias Shishu and Lalit Bakshi (all the three acquitted by the trial court). In cross examination, this witness (PW1) states that when he went to lodge the First information Report at the police station, he had no knowledge, whether Sukhvinder Singh had died, or not. It is strange that a person, who is alleging in the First Information Report that his brother has been murdered, and his dead body is lying in the village, states in the cross examination that he was not aware of the fact, whether his brother (Sukhvinder Singh) had died, or not. On the basis of it, learned counsel for the appellants argued that the First Information Report (ExhibitA-1) lodged by PW1 Manjit Singh is an ante-time First Information Report. The argument advanced on behalf of the appellant cannot be said to be without substance. PW1 Manjit Singh has stated that several shots were fired by the accused appellants, and Sukhvinder Singh was murdered inside the house of Babu Singh but it again appears to be doubtful from his statement made in the cross-examination. PW1 Manjit Singh in his cross-examination says that he did not go inside the gate of the house of Babu Singh because firing was going on. PW1 Manjit Singh and other witnesses have stated that several rounds of fire were made. It is pertinent to mention here that there is only gun-injury, that too, on the head of the deceased. It is nowhere stated that deceased was armed with any fire-arms. Five of the accused appellants were said to have been armed with fire-arms i.e. country made pistols. It remains unexplained, at whom those fires were shot. 10. Having reassessed the entire evidence on record, we are of the view that in the above circumstances, it cannot be said that the prosecution has not successfully proved, beyond reasonable doubt, that the accused appellants, with common object, have committed murder of Sukhvinder Singh, or that they had attempted to commit murder of Vijay Pal with common object, or they had formed unlawful assembly with the deadly weapons. The recovery, allegedly made from the accused appellants Hindbir alias Guddu, Azadbir alias Dabbu, Om Prakash alias Kallu, and Dinesh Kumar alias Maissy, has already been disbelieved by the trial court. The theory of conspiracy has also been disbelieved by the trial court; and three accused have been acquitted from the charge framed against them. 11. For the reasons, as discussed above, we are of the view that this appeal deserves to be allowed. Accordingly, the appeal is allowed. Impugned judgment and order dated 14.1.1998, passed by I (Additional Sessions Judge, Nainital in Sessions Trial No, 255 of 1990 recording conviction and sentence of accused appellants Om Prakash and Kishan Lal is set aside. The accused appellants Om Prakash alias Kallu and Kishan Lal alias Pappu are acquitted of the charge framed against them. The other accused appellants, namely; Hindbir alias Guddu, Azadbir Singh alias Dabbu, Dinesh Kumar alias Maissy and Devendra Singh are said to have died during the pendency of this appeal, therefore, their appeal stands abated. Lower court retard is sent back.