JUDGMENT Honble Mrs. Justice Poonam Srivastav, J.—These are two criminal appeals on behalf of two accused arising from the judgment and order dated 19.8.2004 passed by the Additional Sessions Judge, (Court No. 19), Allahabad in Session Trial No. 781 of 2002, State v. Raju Pasi, Session Trial No. 946 of 2003, State v. Lal Chandra and Session Trial No. 782 of 2002, State v. Raju Pasi. The appellant Raju Pasi was acquitted in Session Trial No. 782 of 2002 under the Arms Act. 2. Both the appellants Raju Pasi and Lal Chandra are convicted under Section 302/34, I.P.C. and sentenced to undergo life imprisonment and a fine of Rs. 2,000/-. In default of payment of fine, a further imprisonment of six months. 3. The occurrence is alleged to have taken place on 12.7.2002 at 6.30 a.m. near puliya of village Naveenpur Police Station Naini, Allahabad. Surendra Pasi died in the incident. The F.I.R. was lodged on the same day i.e. 12.7.2002 at 7.30 a.m. by Virendra, brother of Surendra Pasi at police station Naini which is at a distance of 4 kilometres from the place of occurrence. 4. According to narration in the F.I.R. which was scribed by Ram Kishun son of Kanhaiya Lal, resident of 81A/2 Bhavapur, Police Station Kareilly, Allahabad, it is alleged that the accused Raju Pasi used to tease and misbehave with the daughter of Phool Chand Kachhi. This was objected by the deceased and there was a verbal altercation 3-4 months before the present incident. The grudge was nurtured by Raju Pasi. On 12.7.2003 at about 6.30 a.m. the first informant alongwith PW-2 Dinesh and deceased on his Hero Puch No. UP-70J 7092 accompanied by Jugunu son of Cheena (12 years of age) had gone to pluck flowers at about 6.15 a.m. After plucking flowers, they went to sell it in the Phool Mandi. While returning from Phool Mandi for their village at about 6.30 a.m., the incident took place. At the time of occurrence when they reached at the tea shop of Gangadei, two accused appellants alongwith one unknown person who were also sitting at the tea shop, colluded their cycle with Hero Puch and deceased Surendra fell in a Nali, two fires were shot at. At the time of occurrence when they reached at the tea shop of Gangadei, two accused appellants alongwith one unknown person who were also sitting at the tea shop, colluded their cycle with Hero Puch and deceased Surendra fell in a Nali, two fires were shot at. The deceased Surendra ran to save his life but the three accused caught him in front the house of Mammu Lal Kushwaha and both of them fired two more shots at Surendra and the unknown assailant slaughtered his neck with his knife. The accused Raju Pasi surrendered in the Court on 1.8.2002, recovery of 315 bore country made pistol at the pointing out by Raju Pasi was made on 8.8.2002. Raju Pasi disclosed the name of unknown assailant as Soni. 5. The prosecution examined as many as six witnesses. Virendra brother of the deceased and complainant as PW-1, Dinesh, another witness of fact cousin of the deceased as PW-2, Dr. Harish Chand who conducted post mortem as PW-3, Surendra Nath Dubey proved chik report as PW-4, Amar Singh Investigating Officer and had also made recovery of country made pistol at the pointing out of accused Raju Pasi as PW-5, Raj Kumar Mishra Head Constable police station Naini who proved G.D. and recovery memo of the country made pistol as PW-6. 6. Post mortem on the body of the deceased Surendra Pasi was performed by PW-3 Dr. Harish Chandra on 12.7.2002 at 5.40 p.m. The death was reported to be half day and following ante-mortem injuries were found on his body : (1) Fire arm wound of entry 1.5 x 1 cm x cavity deep on face 1 cm lateral to (R) eye’s outer angle. B/T/S present. (2) Firearm wound of exit 7 x 6 cm x cavity deep on (R) parietal region 7 cm above (R) ear. Brain matter came out. (3) I.W. 10 cm x 2.5 cm x full with Trachea cut, great vessels cut on neck front side just above thyroid. (4) Firearm wound of entry 1.5 cm x 1 cm on (L) side waist 5 cm below iliac crest lateral bone communicating with injury No. 5 with tattooing and scorching around the wound, directing down. (5) Firearm wound of exit 3 cm x 2 cm on (L) side of upper part scrotum, communicating to injury No. 4. 7. (4) Firearm wound of entry 1.5 cm x 1 cm on (L) side waist 5 cm below iliac crest lateral bone communicating with injury No. 5 with tattooing and scorching around the wound, directing down. (5) Firearm wound of exit 3 cm x 2 cm on (L) side of upper part scrotum, communicating to injury No. 4. 7. Sri Dileep Kumar Advocate appeared on behalf of the appellants and advanced a number of arguments. The first submission is that the accused, deceased and all the witnesses belong to Pasi community whereas the motive attributed is that the appellant Raju Pasi used to misbehave with the daughter of Phool Chand Kachhi which was objected by the deceased, 3-4 months before the occurrence. The submission at the very outset is that there is no immediate motive, besides the motive attributed is too flimsy without there being any co-relation between the deceased and Phool Chand Kachhi. It is also asserted that there is no witness of misbehaviour of Raju Pasi with the daughter of Phool Chand Kachhi, neither when Raju Pasi was allegedly scolded by the deceased Surendra. Sri Dileep Kumar has emphatically asserted and brought to our notice, the fact that the deceased was a history sheeter and, therefore, there is a possibility of having done to death by some rival. It is evidently a case where the deceased was killed by someone else and the appellants have been falsely implicated. The scribe of the F.I.R. Ram Kishun also resides at Kareilly, Allahabad which is at a distance of 12 kilometres from the place of occurrence. Ram Kishun was not even examined as a witness though he is also a witness of inquest. No reason has been assigned for his presence at such an early hour of the day at Naini. The F.I.R. was written out previously and thereafter handed over at the police station situated at a distance of four kilometres. 8. Learned counsel has tried to demonstrate a number of discrepancies from the statement of two eye-witnesses to substantiate that no occurrence has taken place at the time and manner alleged. The witnesses of inquest are PW-1 Virendra, PW-2, Sipahi Lal father of PW-1, Ram Kishun scribe of the F.I.R., Meva Lal Pasi and Dinesh Pasi. All of them happen to be members of the same family. The witnesses of inquest are PW-1 Virendra, PW-2, Sipahi Lal father of PW-1, Ram Kishun scribe of the F.I.R., Meva Lal Pasi and Dinesh Pasi. All of them happen to be members of the same family. Inquest started at 8.30 a.m. and completed at 9.45 a.m. It is also pointed out by Sri Dileep Kumar that though eye-witnesses as well scribe of the F.I.R. are witnesses of inquest but there is no whisper either about the names of the accused or the weapons used. This is only to corroborate the argument that the deceased who was history sheeter, was killed sometime in the night or wee hours of the morning by someone else i.e. by one of his enemies but the appellants have been falsely implicated on account of enmity with consultation with the police and villagers. PW-1 happens to be also a witness of recovery of the weapon at the instance of accused Raju Pasi which has admittedly been disbelieved resulting in his clear acquittal for the offence under Section 25 Arms Act. 9. The next argument is that Jugunu who had accompanied the deceased on the Hero Puch has not been produced by the prosecution. There is also nothing to establish that he had received any injury when he fell down from Hero Puch which is the consistent case of the prosecution. The accused are alleged to have hit the Hero Puch by their cycle which the deceased was riding and the vehicle fell down. Two shots were fired at which missed its target but subsequently the deceased Surendra got up and ran towards the house of Mammu Lal Kushwaha where a second round of shots were fired by the two accused which hit the deceased causing injuries who fell down. His throat was also slaughtered by the third unknown assailant which resulted in his instant death. 10. Lengthy cross examination has been made on behalf of defence to establish the exact timing of the deceased and witnesses going to the garden to pluck flowers and thereafter time taken in plucking flowers, bringing it to Phool Mandi, selling there and thereafter coming back to the village. This has been done to demonstrate that the time of occurrence claimed by the prosecution is false. In cross examination PW-1 admits that all the brothers have different flower garden. This has been done to demonstrate that the time of occurrence claimed by the prosecution is false. In cross examination PW-1 admits that all the brothers have different flower garden. They reach their respective garden at different time but of course always early morning and thereafter they go to Phool Mandi where they come together. They return back after selling the flowers alongwith other villagers who also deal in flowers’ business. 11. Sri Dileep Kumar has challenged veracity of the witness on the ground, primarily that he is real brother of the deceased. There are admittedly a number of other villagers who go to pluck flowers and subsequently go to Phool Mandi to sell them and come back together, but none of them have been produced to substantiate and corroborate the prosecution case. Raju Pasi and the deceased are neighbours. 12. The specific assertion by PW-1 is that actual firing took place in open space in between house of Sharda and Mammu Lal Kushwaha. The shots were fired at after the deceased was caught hold. Raju Pasi was shot at on the right cheek and Lal Chandra’s fire was aimed on the groin of the deceased in between of his two thighs. Both the fires are claimed to have hit the deceased who fell down after receiving injuries from the shots and the unknown assailant slaughtered his throat. The witnesses were at a distance of 20-25 paces and they had made hue and cry. He admits to be a witness of inquest and also the various recovery memos as well. Thus learned counsel for the appellants has pointed out that he is an omnibus witness. Learned counsel has pointed out a number of discrepancies in the cross examination of PW-1, specially relating to the time when each of the brother reached their respective garden which the witness admits to be different and also claims that they all met in the Phool Mandi at one place. He states that flowers were plucked by 7.00 a.m. but in the next breath itself changes the time to 5.30 a.m. Thereafter he also states that he himself is not the one who plucks flowers but there are labours. He only carries the flowers to the Phool Mandi. At the time when they return from the Phool Mandi, there is considerable traffic on the road. He only carries the flowers to the Phool Mandi. At the time when they return from the Phool Mandi, there is considerable traffic on the road. The fact that PW-1 and PW-2 are closely related to the deceased has also been pointed out as well as the fact that the deceased and witness had left for plucking flowers at different times. 13. The witness has answered to some quarries made by the Court confirming that Raju Pasi had fired on the cheek of the deceased and Lal Chandra on the groin of the deceased and the accused had take about half hour to commit their respective act and thereby complete the act of murder. There were four fires, two first fires had missed their target and it was the subsequent two fires which caused the injury. His neck was slaughtered only after the deceased fell down after receiving gun-shot injuries. The witness initially expressed his ignorance to the suggestion that the deceased was history sheeter but later he admitted that his brother (deceased) was an accused in 8-10 criminal cases. The suggestion was also made by the defence that the deceased had enmity with other persons who were co-accused in a number of cases alongwith the deceased. The suggestion by defence that Naini police wanted to kill his brother in a police encounter is clearly denied. It is also suggested that there was a bomb blast at the time of occurrence. Considerable cross-examination has also been made from PW-1 regarding the first two fires alleged to have been made by the accused. The witness has tried to evade the specific questions by stating that the first two fires were made after the deceased fell down in Nali with his Hero Puch and he was trying to get up. The first two shots fired at did not hit the deceased. 14. Sri Dileep Kumar has categorically argued that the deceased had not received a single injury after he fell down in Nali with his Hero Puch, not even a scratch appears on the body of the deceased. While questioning the witness on the knife which was used by third assailant, the witness admits that the knife was one feet long which was kept on the carrier of the bicycle. The two appellants had only shouted giving direction to the third assailant to cut his neck. While questioning the witness on the knife which was used by third assailant, the witness admits that the knife was one feet long which was kept on the carrier of the bicycle. The two appellants had only shouted giving direction to the third assailant to cut his neck. The knife was kept in a folded cloth. 15. It is argued next that PW-2 is first cousin of the deceased. The third assailant has been attributed the role of hitting the Hero Puch by PW-2 which resulted in falling down of the deceased in Nali. Cross examination has been made so far the question of motive is concerned. He has admitted in cross examination that 2-4 villagers had reprimanded appellant Raju Pasi for misbehaving with the daughter of Phool Chand. PW-2 is also witness of inquest. However, it is admitted by him that the name of the deceased was involved in a number of police cases and was already there in the police record and he was ‘DAS NAMBARI’. PW-2 also admits that he knows Ram Kishun who is scribe of the F.I.R. He also happens to be a witness of various recovery memos as he admits to sign a number of documents at the site of occurrence. PW-2 states that bombs were hurled. The case of the prosecution that when the firing was resorted, the other co-accused had caught hold of the deceased was explained by the witness that clothes such as Baniyan etc. were caught hold by the co-accused and after the shots hit the deceased, they left. There are several other discrepancies marked and pointed out by learned counsel such as arrival of the villagers, father of PW-1 Sipahi Lal as well as the manner of occurrence etc. It is on the basis of all these contradictions and discrepancies, the defence counsel stressed that the witnesses were not present at the time of occurrence. The witnesses besides being family members cannot be believed and conviction cannot be upheld on the basis of their evidence which is too shaky. Jugunu was not examined though it is admitted by witness that he is still living in the village and Jugunu was very much alongwith the deceased at the time of occurrence. In fact he was on the Hero Puch with the deceased. 16. Learned A.G.A. has disputed each and every argument of the learned counsel for the appellants. Jugunu was not examined though it is admitted by witness that he is still living in the village and Jugunu was very much alongwith the deceased at the time of occurrence. In fact he was on the Hero Puch with the deceased. 16. Learned A.G.A. has disputed each and every argument of the learned counsel for the appellants. According to him, the discrepancies and contradictions are very minor and this alone cannot be sufficient ground for acquitting the appellant specially when it is a day light incident. There are two eye-witnesses who have corroborated the prosecution case and also that the F.I.R. is prompt. Merely because the two witnesses are family members their evidence cannot be overlooked and ignored. 17. We have carefully considered the arguments of the respective counsels and closely analysed the statement of the witnesses including that of the doctor and Investigating Officer. Before we embark on the scrutiny of the testimony of the eye-witnesses who are admittedly close family members, we proceed to discuss the motive propounded by the prosecution for committing the day light murder. It is evident that the deceased was a history sheeter as it has come in evidence and demonstrated by the defence counsel. Besides, motive becomes important when the witnesses are none else but brothers of the deceased. The antecedent of the deceased are sufficient to come to a conclusion that there can be other enemies or contemporaries of the deceased who were associated with him in commission of crime. The suggestion that someone who had really a continuous grudge or rivalry with the deceased who was a history sheeter, could have a reason to eliminate him. This preposition of the defence cannot be altogether brushed aside but at the same time absence of any motive or the deceased being a criminal cannot lead to a conclusion that he was done to death by one of his associates. We have to examine every aspect minutely. 18. In the instant case, the motive suggested by the prosecution is very weak, specially no connection has been shown between Phool Chand Kachhi and the deceased who had scolded the appellant Raju Pasi for his misbehaviour with the daughter of Phool Chand Kachhi. We have to examine every aspect minutely. 18. In the instant case, the motive suggested by the prosecution is very weak, specially no connection has been shown between Phool Chand Kachhi and the deceased who had scolded the appellant Raju Pasi for his misbehaviour with the daughter of Phool Chand Kachhi. If the motive is accepted to be correct then the prosecution should have examined Phool Chand Kachhi, if not the daughter or those people in front of whom the appellant Raju Pasi was reprimanded for his misbehaviour. There is no evidence of the alleged misbehaviour or the nature of the objectionable act. This appears to be too feeble a cause to commit murder in a gruesome manner after lapse of considerable time. There is nothing else suggested by the prosecution, therefore, it is difficult to accept that the murder was committed on account of this reason alone. We are of the view that the motive suggested by the prosecution cannot be sufficient to commit a crime unless the eye-witness account is worth accepting though the witnesses may be brothers. Prosecution had an onerous task to substantiate its case by positive corroborative evidence. 19. So far the testimony of two eye-witnesses are concerned, even if we overlook the minor discrepancies, we have to embark on a very minute scrutiny and analysis as they are brothers of the deceased, specially when Jugunu who was accompanying the deceased on his Hero Puch has been withheld. We cannot overlook that the series of incident as narrated in the F.I.R. as well as in the statement of the witnesses they claimed that at the time when the Hero Puch was hit at, the deceased who was driving the Hero Puch and pillion rider Jugunu both fell down in Nali. None of the two shots fired caused any injury and both of them came out unscathed. The deceased was chased when he ran towards the place of occurrence shown in the site plan. He was caught hold by two assailants. Shots were fired one by one and third unknown assailant slaughtered his neck. All this took almost half hour as asserted by PW-1 and thereafter they made good their escape. Not a single commuter on the road or the tea shop owner or any one else at the tea shop was examined. No abrasion, contusion or even a scratch was caused due to fall. All this took almost half hour as asserted by PW-1 and thereafter they made good their escape. Not a single commuter on the road or the tea shop owner or any one else at the tea shop was examined. No abrasion, contusion or even a scratch was caused due to fall. The eye-witnesses who were nearby have not received any injury. None of the armed accused have attempted to harm the witnesses who were none else but brothers of the deceased, therefore, the theory of falling down and catching hold of the deceased and thereafter injuries having been caused by fire arm is not acceptable. This theory has also not been substantiated by any positive evidence in the site plan. Assuming that the first two shots did not hit the accused then empty cartridges should have been recovered from the place of occurrence. 20. We have analysed the post mortem report, it shows that there are two entry wounds and two exit wounds caused by fire arm and injury No. 3 being an incised injury 10 cm x 2.5 cm just above the thyroid. The air pipe and large vessels were all cut. The injuries were caused from the front side and the suggestion by defence has been admitted by doctor that the injury No. 3 can very well be caused by a Farsa or Garasa which is a sharp cutting weapon. There is yet another circumstance to which our attention was drawn that the small and large intestines were filled with semi digested food and gases and the doctor has admitted that the deceased had taken food at least four hours before the time of death. This theory does not fit in the time of occurrence claimed by the prosecution as 6.30 a.m. The deceased had not eased out, the food consumed by him was not completely digested and it is not a case where he had taken food immediately before the deceased left for Phool Mandi since both the intestines were filled with semi digested food and gases. Thus we are of the opinion that the occurrence had taken place some times in the middle of the night or at about 3.00-3.30 a.m., at least not at the time when claimed by the prosecution. Thus we are of the opinion that the occurrence had taken place some times in the middle of the night or at about 3.00-3.30 a.m., at least not at the time when claimed by the prosecution. Both the fires have been fired from the front side and, therefore, the theory of catching hold of the deceased also does not inspire any confidence. 21. While placing the evidence of PW-4, Sri Dileep Kumar has pointed out that the F.I.R. appears to be ante-timed specially since the Head Constable C.P. Surendra Lal admits that Ex. Ka-8 reveals that the report was seen by the C.J.M. on 7.7.2002 and there is no entry in the G.D. when the information was sent by R.T. set. When the witness was questioned regarding the entries in the G.D. in a different ink, he expressed his ignorance and stated that this can be confirmed by constable Sukhdeo Prasad. 22. We have also noticed the evidence of the Investigating Officer as pointed out by defence counsel that all the witnesses of inquest were family members. So far witness of inquest Ram Kishun is concerned, he had admitted that till the inquest was conducted Ram Kishun was not a witness though he is scribe of the F.I.R. Inquest commenced at 8.10 a.m. and completed at 9.45 a.m. whereas in the G.D. the Investigating Officer has written that investigation commenced at 10.00 a.m. It is apparent that on own admission of the Investigating Officer the F.I.R. was not in existence. Though we are not very much inclined to give our opinion regarding time of registration of the F.I.R., yet we are not even convinced that the prosecution has come out with a clear and definite time to substantiate the time of lodging of the F.I.R. The Investigating Officer PW-5 had recorded the evidence of Jugunu son of Chinta Pasi in his case diary. The admitted position is that Jugunu was 12 years of age at the time of incident but the prosecution for the reasons best known did not produce him. 23. A perusal of the statement of the Investigating Officer, the reason for not appointing independent witness at the time of inquest is very feeble one that none of them were ready to be appointed as a witness for inquest. 23. A perusal of the statement of the Investigating Officer, the reason for not appointing independent witness at the time of inquest is very feeble one that none of them were ready to be appointed as a witness for inquest. He admits that scribe of the F.I.R. Ram Kishun was standing in the crowd which had gathered after the murder and till then it was not known that he will be the scribe of the F.I.R. This statement goes a long way to establish that the F.I.R. was not in existence at the time of inquest and it is ante-timed as suggested by Sri Dileep Kumar. At the time of inquest, not a single witness from the village Kharkauni where the incident had taken place, was made as a witness. No witness was examined. Two eye-witnesses examined by the prosecution are witnesses of inquest also but there is not a whisper regarding name of the assailants or the weapon used or even slightest description of the incident. Admittedly, the recovery made by the Investigating Officer was disbelieved. The appellant Raju Pasi has been acquitted under Section 25 Arms Act. Thus after complete assessment of the evidence, we do not find it safe to confirm the judgment of conviction on the evidence of two witnesses which are not very reliable. Besides, they have been given contradictory stands in the Court. The independent witnesses have been withheld by the prosecution as well as the time of incident do not stand corroborated by medical evidence as stated above. 24. Reliance has been placed on a decision of the Apex Court in the case of Rai Sahab and another v. State of Haryana, JT 2002 (1) SC 273. The Apex Court had acquitted the accused though they were convicted by the High Court on the ground that evidence was unreliable and unsafe for conviction without taking note of the contradictions and no independent evidence was led by the prosecution. It was held that the High Court erred in failing to take note of the contradictions in the evidence and also the contradictions between the eye-witness account and the medical evidence, therefore, the Hon’ble Supreme Court was of the view that there was no credible evidence on record and so called eye-witnesses fall within the category of interested witness. 25. It was held that the High Court erred in failing to take note of the contradictions in the evidence and also the contradictions between the eye-witness account and the medical evidence, therefore, the Hon’ble Supreme Court was of the view that there was no credible evidence on record and so called eye-witnesses fall within the category of interested witness. 25. An identical circumstance is in the present case and it is not appropriate to uphold the judgment of conviction. 26. For the same reasons as suggested by the Apex Court and taking into consideration of the circumstances, we are of the considered view that the conviction recorded by the learned Sessions Judge cannot be upheld in the instant case. The prosecution has not been able to establish its case beyond doubt by means of cogent reliable evidence besides the accused had no reason to commit the offence. In absence of any motive and the eye-witness account fail to inspire confidence, coupled with the fact that time of occurrence is not supported by the post mortem report, we are of the opinion that the accused appellants are entitled to benefit of doubt. We have also noticed that they are in jail since a very long time. 27. In view of what has been stated above, the judgment of conviction recorded by the learned Sessions Judge has no legs to stand. The judgment dated 19.8.2004 passed by the Additional Sessions Judge, (Court No. 19), Allahabad in Session Trial No. 781 of 2002, State v. Raju Pasi and order dated 19.8.2004 passed by the Additional Sessions judge, (Court No. 19), Allahabad in Session Trial No. 946 of 2003, State v. Lal Chandra, are set at naught. The appeals are accordingly allowed. The appellants shall be set at liberty forthwith. 28. Let a copy of this judgment alongwith lower Court record be sent to the Sessions Judge, Allahabad for compliance. ————