JUDGMENT [Per: Hon'ble U.C. Dhyani, J.] This appeal, preferred under Section 374 of the Code of Criminal Procedure, 1973 is directed against the judgment and order dated 05.02.2002, passed by Addl. Sessions Judge/F.T.C. First, Nainital in Sessions Trial No. 453 of 1996, whereby accused / appellant Jagdish has been convicted under Section 302 of Indian Penal Code, 1860 and sentenced to imprisonment for life, and directed to pay fine of Rs. 2,000/- in default of payment of which he has been further directed to undergo imprisonment for a period of six months. 2. We have heard learned counsel for the appellant & learned Addl. Government Advocate for the State and perused the lower court record. 3. Prosecution story, in brief, is that P. W. 1 Joga Ram (informant) is resident of Shivnathpur, Nai Basti, police station Ramnagar, District Nainital. On 10.01.1996, at about 06:00 P.M., Kundan Lal s/o informant Joga Ram proceeded from his house towards Dhela Barrage to take battery, and on his way he stopped at the shop of Umed Ram to purchase peanuts. At that time accused Ramesh, Jagdish and Pooran reached there. Another villager Anand s/o Ganga Ram was also there. By that time, Joga Ram (informant) and his nephew Diwan Ram who were also going towards Dhela Barrage reached there and saw accused Ramesh and accused Pooran catching hold of his son Kundan Lal. Accused Ramesh was armed with patal and accused Jagdish was armed with axe. Accused Jagdish gave a blow of axe on the head of Kundan Lal, as a result of which Kundan Lal sustained injury and fell on the ground. On raising alarm by P.W1 Joga Ram all the accused fled away from the scene of occurrence. Kundan Lal succumbed to his injuries on the spot. Other villagers also gathered on the place of occurrence. P. W 1 Joga Ram (informant) got the report (Ext. Ka-1) scribed by a villager Yogendra Kumar (P.W7) on the same day i.e. 10.01.1996, and on the basis of said report, chick repot (Ext. Ka-5) was lodged by the police and Crime No. 21 of 1996 was registered against the accused/appellants Ramesh, Jagdish and Pooran for the offence punishable under Section 302 of I.P.C. 3-A. Investigation of the case was taken up by S.I. Brijesh Kumar Tyagi (P.W9). He took the dead body in his possession and prepared inquest report (Ext. Ka-2) and other necessary papers. He took the dead body in his possession and prepared inquest report (Ext. Ka-2) and other necessary papers. The dead body was sent in a sealed cover for postmortem examination. The postmortem examination was conducted by Dr. Yashpal Singh Rawat (P'WS) of L.D. Bhatt Hospital, Kashipur on 11.01.1996, at 02:00 P. M. The said Medical Officer prepared autopsy report (Ext. Ka-3) and recorded that the deceased had died of coma due to ante mortem injury. In the meantime, P.W9 S.I. Brijesh Kumar Tyagi inspected the spot, prepared site plan (Ext. Ka-12). He also took simple soil and blood stained soil in his possession and prepared recovery memorandum (Ext. Ka-4). After interrogating the witnesses and on completion of investigation; P.W.9 S.I. Brijesh Kumar Tyagi filed charge sheet (Ext. Ka-13) against accused Ramesh, Jagdish and Pooran for their trial in respect of offence punishable under Section 302 of I.P.C. 4. The Magistrate, on receipt of the charge sheet, after giving necessary copies to the accused, as required under Section 207 of Cr.P.C., committed the case to the court of sessions for trial. Learned IV AddI. Sessions Judge, Nainital on 06.12.1996, after hearing the parties, framed charge for the offence punishable under Section 302 of I.P.C. against the accused/appellant Jagdish. Charge is respect of offence punishable under Section 302 read with Section 34 was framed against accused/appellants Ramesh and Pooran. All of them pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W.1 Joga Ram (informant and eyewitness); P.W2 Umed Ram (declared hostile); P.W3 Diwan Ram; P.W4 Jagdish Prasad; P.WS Dr. Yashpal Singh Rawat (who conducted the postmortem examination); P.W 6 Om Prakash (witness of preparation of inquest report); P.W 7 Yogendra Kumar (scribe of the report); P.W.8 Anand Prasad (declared hostile) and P.W 9 S.1. Brijesh Kumar Tyagi. The oral and documentary evidence was put to the accused under Section 313 of Cr. P. C., in reply to which they alleged that evidence against them were false and they have been falsely implicated in the crime. No evidence in defence was adduced. The trial court, after hearing the parties, found accused/appellant Jagdish guilty of charge of offence punishable under Section 302 of I.P. C. After hearing the parties, the trial court sentenced convict Jagdish to imprisonment for life under Section 302 of I.P.C. and directed to pay a fine of Rs. 2,000/-. No evidence in defence was adduced. The trial court, after hearing the parties, found accused/appellant Jagdish guilty of charge of offence punishable under Section 302 of I.P. C. After hearing the parties, the trial court sentenced convict Jagdish to imprisonment for life under Section 302 of I.P.C. and directed to pay a fine of Rs. 2,000/-. However, the trial court acquitted co-accused Ramesh and Pooran from the charge of offence punishable under Section 302 read with Section 34 of I.P.C. giving them benefit of doubt. Aggrieved by said judgment and order dated 05.02.2002, the convict has preferred this appeal. 5. P.W.1 Joga Ram has said in his examination-in-chief that deceased Kundan Lal was his son. This witness knew the accused persons, namely Ramesh, Jagdish and Pooran. The incident took place on 10.01.1996. When his son was going to Dehla Barrage to repair the battery, his son visited Umed Ram's shop to purchase peanuts. This witness was going with his nephew Tikaram to perform Jagar. When he was about to reach Umed Ram's shop, at around 06:00 P.M., he saw that accused Ramesh was carrying patal and accused Jagdish was carrying axe. Accused Jagdish inflicted a blow of axe on the person of his son. Accused Ramesh had patal in his hands, but he did not use it. The third accused, namely Pooran caught hold of the hands of his son and when his son raised an alarm, all the accused persons fled away from there. His son Kundan Lal died on the spot. This witness got the report scribed by a villager Yogendra Kumar. P. W1 Joga Ram has proved his signatures on the complaint (Ext. Ka-1). He has said that the FIR was lodged on the basis of this complaint. The Investigating Officer visited the place of occurrence and prepared inquest report (Ext. Ka-2), which bears his signatures. He was appointed one of the Panches. 6. In his cross-examination P W1 Joga Ram has said that he did not mention in his report that he was going to perform Jagar. His son had left for Dhela Barrage for the sake of repairing the battery. He did not disclose the Investigating Officer that his son Kundal Lal was going to Dhela Barrage for the purpose of repairing the battery. His son had left for Dhela Barrage around 05:30 PM. His son had left for Dhela Barrage for the sake of repairing the battery. He did not disclose the Investigating Officer that his son Kundal Lal was going to Dhela Barrage for the purpose of repairing the battery. His son had left for Dhela Barrage around 05:30 PM. Umed Ram's shop is situated at about 1 kilometer from his residence. This witness proceeded after half an hour of departure of his son. This witness was accompanied by his nephew. His son was playing cricket since morning and when he came back at about 04:00 PM. he did not eat anything. He had taken meal in the morning at 10 O' clock. There were dense bushes between the place of occurrence and the place from where he had seen the occurrence. He had seen his son being killed by the accused persons. He did not disclose the place to Investigating Officer from where he had seen the accused persons killing his son. The villagers Anand Ram, Mohan Ram, Umed Ram and others were sitting in the shop of Umed Ram. He did not cite the names of Mohan Ram and Kali Ram in the report because the Investigating Officer told him that there is no use of mentioning the names of so many persons. He had disclosed the names of Mohan Ram and Kali Ram to the Investigating Officer. 7. PW1 Joga Ram has also stated in his cross-examination that Yogendra Kumar- the scribe of the complaint had reached on the spot. The villagers also reached there within half an hour of the incident. Now at this age, his visibility has become low but it was all right at the time of incident. He has got his eye operated because of low visibility. He had no discussion with witness Anand. His son was facing north, when the occurrence took place Accused Jagdish inflicted blow on the person of his son from the east. They reached police station, Ramnagar around 10:00 PM., which is about 5 kilometers away from the place of occurrence. The panchayatnama was prepared in the night itself. On the north of the place of occurrence, there is Hari Ram's field and on the south is Umed Ram's agricultural land. They also reside near the place of occurrence. The accused persons had developed enmity with the informant about a year ago but later on they had settled their differences. The panchayatnama was prepared in the night itself. On the north of the place of occurrence, there is Hari Ram's field and on the south is Umed Ram's agricultural land. They also reside near the place of occurrence. The accused persons had developed enmity with the informant about a year ago but later on they had settled their differences. 8. P.W.2 Umed Ram has not supported the prosecution story. He has said in his examination-in-chief that no occurrence took place in his presence. This witness was declared hostile. He was cross-examined on behalf of the prosecution but nothing has come out in his testimony, which could help the prosecution. In the cross-examination by the defence, he has said that his wife Bhawani Devi has also not witnessed the occurrence. 9. P.W.3 Diwan Ram is another witness. He has stated in his examination-in-chief that the deceased Kundan Lal was his cousin. The accused persons viz, Ramesh, Jagdish and Pooran are also related to him. On 10 January 1996, when he was going along with Joga Ram and they reached near the shop of Umed Ram at 06:00 P.M., he saw accused Jagdish and Pooran near the shop. Accused Ramesh was having patal and accused Jagdish was having axe in his hands. There was nothing in the hands of accused Pooran. Accused Jagdish inflicted a blow of axe on the person of Kundan Lal. Accused Ramesh caught hold of his hands. On raising alarm, the accused persons fled away from the scene. Victim Kundan Lal died on the spot, no sooner he received the blow of axe. In the cross-examination this witness has stated that this house is situated at about 2 kilometers away from Joga Ram's house. When this witness reached Joga Ram's house around 04:30 P.M., Joga Ram's son Kundan Lal was present at home. He departed for Dhela Barrage within 10-15 minutes. Umed Ram's shop is situated at a distance of 2-3 furlongs from the residence of Joga Ram. He along with Joga Ram proceeded after half an hour of the departure of Kundan Lal. This witness had seen the occurrence from a distance of 14-15 yards from the west. He saw that Jagdish inflicted the blow on the head of Kundan Lal from his back, Ramesh did not use patal. No sooner they reached on the spot, they found Kundan Lal dead. This witness had seen the occurrence from a distance of 14-15 yards from the west. He saw that Jagdish inflicted the blow on the head of Kundan Lal from his back, Ramesh did not use patal. No sooner they reached on the spot, they found Kundan Lal dead. The blood had dropped on the earth. He stayed around the place of occurrence till 12 0' clock in the night. 10. P.W.4 Jagdish Prasad has proved his signatures on inquest report (Ext. Ka-2). 11. P.W.5 Dr. Yashpal Singh Rawat has conducted postmortem examination of the dead body of Kundal Lal on 11.01.1996 at 02:00 P.M. and found the following ante mortem injury: "Incised wound over left parietal region of size 4 cm x 1 cm x bone deep. 8 cm above the left ear. Fracture in parietal bone." The Medical Officer (P.W.5 Dr. Yashpal Singh Rawat) has opined that the death of Kundal Lal is possible on 10.01.1996 at 06:00 P.M. with sharp edged weapon like an axe. In the autopsy report the Medical Officer opined that deceased had died of coma due to ante mortem injury. This witness has proved postmortem examination report (Ext. Ka-3). He was examined by learned counsel for the accused and some suggestions were also forwarded on his behalf. 12. P.W. 6 Om Prakash is the witness of preparation of inquest report (Ext. Ka-2), which bears his signatures. The inquest report was prepared on 11.01.1996. 13. P.W.7 Yogendra Kumar is the scribe of the complaint. He has said that he has scribed the complaint (Ext. Ka-1), on the dictation of Joga Ram on 10.01.1996. He has proved the complaint (Ext. Ka-1). He resides at the place of occurrence. He has stated in his cross-examination that he resides at a distance of 2 kilometers from the place of occurrence and when he reached at the place of occurrence, the police was already present there. He reached the place of occurrence around 12 P.M. P.W.8 Anand Prasad, who is also said to be a witness to the crime, has not supported the prosecution story, and accordingly, he was declared hostile. He was also cross-examined by learned D.G.C. (Criminal), but nothing fruitful has come out in his evidence in support of prosecution. 14. The last witness is P.W9 S.1. Brijesh Kumar Tyagi, who has proved the chick FIR (Ext. Ka-5), extract of General Diary (Ext. He was also cross-examined by learned D.G.C. (Criminal), but nothing fruitful has come out in his evidence in support of prosecution. 14. The last witness is P.W9 S.1. Brijesh Kumar Tyagi, who has proved the chick FIR (Ext. Ka-5), extract of General Diary (Ext. Ka-6) , inquest report (Ext. Ka-2), photo lash and other papers (Ext. Ka-7 to Ext. Ka-11). He took the samples of simple soil and blood stained soil, prepared recovery memo (Ext. Ka-4) and obtained the signatures of the witnesses, prepared the site plan (Ext. Ka-12) and finally submitted the charge sheet (Ext. Ka-13) against the three accused. 15. In his cross-examination P.W9 S.1. Brijesh Kumar Tyagi has said that when he took the statement of Joga Ram during investigation, he did not disclose him the presence of Kali Ram and Mohan Ram on the scene of occurrence. This witness has not shown the source of light in the site plan (Ext. Ka-12). This witness has also not shown the place from where the informant and the witnesses had seen the occurrence in the site plan. He has admitted that it is an inadvertent mistake on his part. This witness has denied that the FIR is ante timed. 16. In this way the following witnesses have been produced on behalf of the prosecution, viz, P.W.1 Joga Ram (informant) father of the deceased. P.W.2 Umed Ram (declared hostile) P.W.3 Diwan Ram (cousin of the deceased) P.W.4 Jagdish Prasad (witness of preparation of inquest report) P.W.5 Dr. Yashpal Singh Rawat (who conducted postmortem examination on dead body of deceased) P.W.6 Om Prakash (formal witness) P.W.7 Yogendra Kumar (scribe of the FIR) P.W8Anand Prasad (declared hostile) P.W.9 S.1. Brijesh Kumar Tyagi (I.O.) 17. It may be recalled here that the co-accused Pooran and Ramesh have been acquitted by the learned trial court on 04.02.2002. It is only accused/appellant Jagdish who has been convicted by learned Addl. Sessions Judge/F.T.C. First, Nainital on 05.02.2002. The criminal appeal has been filed on behalf of this convict Jagdish. 18. The informant Joga Ram in his FIR (Ext. Ka-1) has stated that the occurrence took place at around 06:00 P.M. Since there was no means of transport, therefore, he could not lodge the FIR in the night. This is the averment in the complaint that he could not come to the police station in the night. A perusal of chik FIR (Ext. Ka-1) has stated that the occurrence took place at around 06:00 P.M. Since there was no means of transport, therefore, he could not lodge the FIR in the night. This is the averment in the complaint that he could not come to the police station in the night. A perusal of chik FIR (Ext. Ka-5) reveals that the FIR was lodged on 10.01.1996, at 10:30 P.M. i.e. on the same day. In other words, where as the incident is alleged to have taken place on 10.01.1996, at 06:00 P.M., the FIR is lodged on that day itself within a span of 4½ hours on 10:30 P.M. This is contradictory to what has been said by the informant Joga Ram in his FIR (Ext. Ka-1). He is very specific that he could not come to the police station in the night because no means of transport was available. It appears to us that the FIR is ante timed. 19. P.W.1 Joga Ram, who is aged 60 years, proceeded to perform Jagar after about half an hour of the departure of Kundan Lal from the residence. His son proceeded from his house at 05:30 P.M. and as per statement of P.W1 Joga Ram he along with his nephew proceeded after half an hour of the departure of Kundan Lal. But it appears surprising to us that both of them reached Umed Ram's shop at the same time. Is it sheer coincidence or an improbability which is being proved on behalf of the prosecution? There is no evidence on record to suggest that there is a shortcut to the shop of Umed Ram. Joga Ram's son Kundan Lal was not going for loitering. He was going to a particular place for a particular purpose. The father and son were leaving for the same place. How do they reach Umed Ram's shop at the same time? It cannot be a coincidence. It suggests that P.W1 Joga Ram is telling a lie. His testimony cannot be believed unless he was able to explain this half an hour's gap. In other words, it may safely be concluded that P. W1 Joga Ram has not witnessed the occurrence. His testimony cannot be believed. 20. If this court is not going to believe the testimony of P.W.1 Joga Ram, how can it believe the testimony of P.W.3 Diwan Ram, who is said to be accompanying Joga Ram? In other words, it may safely be concluded that P. W1 Joga Ram has not witnessed the occurrence. His testimony cannot be believed. 20. If this court is not going to believe the testimony of P.W.1 Joga Ram, how can it believe the testimony of P.W.3 Diwan Ram, who is said to be accompanying Joga Ram? To revisit testimony of P.W.3 Diwan Ram, he has said that he reached Umed Ram's shop at around 06:00 P.M., whereupon he witnessed killing of Kundan Lal by Jagdish. He was going along with P. W.1 Joga Ram. His house is situated at a distance of 2 kilometers from the place of Joga Ram. He reached there at 4-4:30 P.M. 21. At no point of time did P.W.3 Diwan Ram separated from P. W1 Joga Ram and we have found above that the testimony of P.W1 Joga Ram is not believable. Hence, in the circumstances, the testimony of P.W3 Diwan Ram also meets the same fate and it will not be safe to rely upon the testimony of P.W.3 Diwan Ram only. Even if we presume for the sake of arguments that P.W.3 Diwan Ram's testimony is worth credence, the fact remains that he departed for Dhela Barrage within 10-15 minutes of the departure of Kundan Lal from the residence of Joga Ram. Thus according to his own statement he must have proceeded for Dhela Barrage either at 04:45 P.M. or in any case, by 05:00 P.M. The distance between Joga Ram's residence and Umed Ram's shop is about 2-3 furlongs. P.W.1 Diwan Ram has reasserted in the cross-examination that he alongwith Joga Ram proceeded after half an hour of the departure of Joga Ram's son Kundan Lal. How did they make up this half an hour's loss is very difficult to accept, as according to the testimony of P.W1 Joga Ram and P.W.3 Diwan Ram both of them reached Umed Ram's shop when Kundan Lal reached there. How could they reach there at the same time is a fact which is difficult to accept especially when there is no shortcut to the shop of Umed Ram and Kundan Lal was going to a particular place for a particular purpose. In this view of the matter P.W.3 Diwan Ram's testimony is not acceptable. 22. There is yet another aspect of the case. In this view of the matter P.W.3 Diwan Ram's testimony is not acceptable. 22. There is yet another aspect of the case. P.W.3 Diwan Ram has admitted at page 3 of his cross-examination that there is no other shortcut to reach Umed Ram's shop. So the question which remains unanswered is as to how did they reach Umed Ram's shop faster than Kundan Lal who was going to Dhela Barrage with a particular purpose. 23. Yet another aspect of the matter which benefits the accused / appellant is the statement of P. W 3 Diwan Ram at paragraph 3 of page no. 3. He has said that he has seen the incident from a distance of 14-15 yards from west and accused Jagdish inflicted a blow with axe on the head of Kundan Lal from the back. In normal circumstances this fact in the testimony of an eyewitness would have been acceptable, but in this case this infirmity has become glaring or prominent because it has become incumbent upon the court to scrutinize the testimony of this witness more carefully. It does not withstand the test of proof beyond reasonable doubt, as is the testimony of P. W1 Joga Ram. Further more, no motive has been ascribed to the accused in commission of murder. It does not appear as to why the accused wanted to commit murder of the deceased Kundan Lal. This is yet another lacuna in the prosecution story. 24. The shop of Umed Ram has not been shown by the Investigating Officer in the site plan (Ext. Ka-12). Although he has shown the place of occurrence with mark "A" but the shop of Umed Ram has not been shown. It is a glaring omission on the part of the Investigating Officer, although the Hon'ble Apex court has observed time and again that the prosecution cannot be faulted for the lapses or mistakes committed by the investigating agency, but it is a case in which nothing is right for the prosecution since beginning till the end. 25. It has been argued on behalf of the accused/appellant that the FIR is ante timed. The occurrence is alleged to have taken place at 06:00 P.M. If the informant could not reach police station in the night, then he must have reached there either in the morning or the next day. 25. It has been argued on behalf of the accused/appellant that the FIR is ante timed. The occurrence is alleged to have taken place at 06:00 P.M. If the informant could not reach police station in the night, then he must have reached there either in the morning or the next day. In that case FIR must have been shown to be lodged on the next day or P.W.1 informant Joga Ram is telling the lie that he could not reach the police station because of unavailability of any conveyance. Both the things are not acceptable simultaneously. Either the FIR is ante timed or P.W.1 Joga Ram was not telling the truth. 26. So far as the oral testimony of P.W7 Yoqendra Kumar is concerned he resides at a distance of 2 kilometers from the place of occurrence. In his cross-examination he has admitted that he reached the place of occurrence when the incident had already taken place. The police was already present there. P.W.1 Joga Ram was already present there when this witness reached there. P.W .7 Yogendra Kumar, according to his own statement, reached on the spot between 12:00 P.M. to 01:00 AM. in the night. 27. There is great inconsistency in the testimony of prosecution witnesses. Where as two eyewitnesses have not supported the prosecution story and were declared hostile, one reached at the place of occurrence when the incident had already taken place, the eyewitness account of two prosecution witnesses is not worth credence and the others are formal witness. In this view of the matter there is no question to accept the prosecution story. We cannot agree with the findings recorded by the learned trial court. 28. For the reasons as discussed above, the appeal deserves to be allowed. The same is accordingly allowed. The judgment and order dated 05.02.2002, passed by Addl. Sessions Judge/F.T.C. First, Nainital in Sessions Trial No. 453 of 1996 so far as it relates to convict Jagdish is set aside. Consequently, the conviction and sentence recorded by the trial court against the accused/appellant Jagdish in respect of offence punishable under section 302 of I.P.C. is also set aside. He is acquitted of the said charge. Accused/appellant Jagdish is on bail. He need not to surrender. His bail bonds are cancelled and sureties stand discharged. Let lower court record be sent back.