Judgment [Per: Hon’ble U.C. Dhyani, J.] In the instance case, criminal law was set into motion on the complaint dated 06.08.1999 (Ext.Ka-1) of Durgesh Kumar Gupta s/o Trilok Chand Gupta r/o Ward no. 6, P.S. Sitarganj, District Udham Singh Nagar. Chik FIR (Ext.Ka-7) was lodged on 06.08.1999 at 8:15 p.m. The occurrence took place on 06.08.1999 at 8:00 p.m. There was distance of half a kilometer between place of occurrence and police station concerned. Hence there appears to be no delay in lodging FIR which was registered as case crime no. 269/99 under Section 302 IPC. 2. It is alleged by the informant in First Information Report that his elder brother Hira Lal (deceased) was a resident of ward no. 6 P.S. Sitarganj, District Udham Singh Nagar. The deceased had two wives. From his first wife victim had a daughter namely Deepmala who was aged about 17 years at the time of incident. His second wife had four children who were begotten from her first husband. 3. Appellant Om Prakash s/o Poranmal r/o ward no. 6 P.S. Sitarganj, used to come to house of the deceased. He offered to get married to Deepmala (daughter of deceased), but Hiralal (deceased) declined for the said marriage. 4. Due to this enmity on dated 06.08.1999 at about 8:00 p.m. Om Prakash (appellant) having carried a country-made pistol went to the house of Hira Lal (deceased) who was sitting on a cot. The lights were on. Nearby, his wife Laxmi and daughter Pushpa were sitting. Nearby, informant (P.W. 1) alongwith his brother-in-law Brijpal (P.W.2) were standing and talking to each other. 5. At that moment Om Prakash put his hand inside the broken lattice (jali) of the window and after challenging the deceased shot a fire on him with country-made pistol which hit victim near his right ear. Bullet pierced/went through his head. The informant further stated that he along with other witnesses saw and recognized Om Prakash in the light of bulb, After committing the crime, the appellant ran away from the place of incident and victim Hira Lal died on the spot. 6. On submission of charge-sheet against the accused, he was tried by learned Sessions Judge, Udham Singh Nagar. After conclusion of trial accused/appellant Om Prakash alias Omi was convicted for the offence punishable under Section 302 IPC and was also convicted for the offence punishable under Section 25 Arms Act. 6. On submission of charge-sheet against the accused, he was tried by learned Sessions Judge, Udham Singh Nagar. After conclusion of trial accused/appellant Om Prakash alias Omi was convicted for the offence punishable under Section 302 IPC and was also convicted for the offence punishable under Section 25 Arms Act. He was awarded imprisonment for life for the offence punishable under Section 302 IPC and one year’s rigorous imprisonment for the offence punishable under Section 25 Arms Act. Both the sentences were directed to run concurrently. Aggrieved against aforesaid conviction and sentence, appellant preferred present appeal. 7. P.W.1 Durgesh Kumar was the elder brother of deceased Hira Lal. He said in his examination in-chief that Hira Lal (victim) had two wives. Victim’s house was adjoining the house of deponent. One daughter named Deepmala was begotten from Hira Lal’s first wife. Deepmala was aged 17 years at the time of incident. Accused/appellant Om Prakash started coming to Hira Lal’s house a few days before the date of incident. Om Prakash wanted to marry Deepmala, but victim Hira Lal was not agreeable to the proposal. Appellant Om Prakash got annoyed. Still Om Prakash insisted for the same and continued to come to Hira Lal’s house. 8. Narrating the incident, P.W.1 Durgesh Kumar said that on 06.08.1999 at 8:00 p.m. accused/appellant Om Prakash came to Hira Lal’s house and stood before his window. He had a country-made pistol in his hand. This witness and his brother-in-law Brij Lal Gupta were talking to each other in a lane. There was a lamppost in the lane. Victim Hira Lal was sitting in his room near window over a cot. His wife Laxmi was also sitting beside him. Their daughter Pushpa (who was the daughter of his second wife begotten from her first husband) was also sitting there. An electric bulb was lighting outside the room. The lattice (jali) outside the window was damaged. Accused/appellant Om Prakash exhorted victim Hira Lal from outside the window and asked Hira Lal that he has not done good by not marrying Deepmala to him (appellant). Pushpa came rushing outside the room (to stop Om Prakash). At this juncture accused/appellant fired on Hira Lal with country-made pistol which hit his temple. Daughter Pushpa tried to stop Om Prakash but he pushed away Pushpa and fled away towards Bijri road. Pushpa came rushing outside the room (to stop Om Prakash). At this juncture accused/appellant fired on Hira Lal with country-made pistol which hit his temple. Daughter Pushpa tried to stop Om Prakash but he pushed away Pushpa and fled away towards Bijri road. P.W.1 Durgesh Kumar did not chase the assailant as he (assailant) was armed with a country-made pistol. Hira Lal succumbed to the bullet of assailant Om Prakash. P.W.1 Durgesh Kumar got the complaint written by one Sanjeev. Complaint was proved by this witness as Ext.Ka-1. 9. In his cross-examination, P.W.1 Durgesh Kumar said that FIR was lodged on 06.08.1999 at 8:15 p.m. Victim Hira Lal was his elder brother. Deponent’s house was adjoining Hira Lal’s house. Victim Hira Lal had two wives namely Prabha Devi Agarwal and Laxmi. Deepmala was begotten from his first wife who was aged 18-19 years when this witness came to depose before the court. Victim had no issue of his own from his second wife. Om Prakash wanted to marry Deepmala. Hira Lal was not agreeable to it and therefore, accused/appellant killed Hira Lal. He said that he was not aware whether accused continued to visit Hira Lal’s house despite Hira Lal’s reply in negative (regarding the proposal of his daughter’s marriage with accused/appellant Om Prakash). This witness said that he identified the assassin Om Prakash. He did not chase the killer because the latter was armed with country-made pistol. When Om Prakash fired on Hira Lal, this witness was standing and talking to his brother-in-law P.W.-2 Brij Lal Gupta. Both of them saw accused Om Prakash in the light of bulb. When assassin fired on victim he was sitting near window in his room. The bullet hit near the ear of victim. His second wife Laxmi and her daughter Pushpa were sitting beside the victim. Police Station Sitarganj was situated at about half kilometer from the place of occurrence. One Mr. Sanjeev and another Mr. Srivastava accompanied the informant to the police station. It took 3-4 minutes for him to reach police station. It took 12-14 minutes for him to lodge FIR in the police station. He denied many a suggestions put forward on behalf of appellant including the fact that he had not seen the incident and not correctly identified the assailant. 10. Srivastava accompanied the informant to the police station. It took 3-4 minutes for him to reach police station. It took 12-14 minutes for him to lodge FIR in the police station. He denied many a suggestions put forward on behalf of appellant including the fact that he had not seen the incident and not correctly identified the assailant. 10. Since P.W.1 Durgesh Kumar was the younger brother of deceased Hira Lal (related witness) therefore, his testimony required close scrutiny. It seems improbable that FIR was lodged in this case within 15 minutes of the incident. Presence of his second wife Laxmi and her daughter Pushpa also looked improbable as neither of them has been made a prosecution witness. Neither Laxmi nor Pushpa adduced evidence on behalf of prosecution. Had they been produced on behalf of prosecution they would have been the most natural witnesses but the wife and daughter were conspicuous by their absence. 11. This was the starting point of erosion of quality of prosecution evidence. The quality of prosecution evidence started diminishing from this stage. It is a settled law that the evidence of a related witness needs to be scrutinized carefully. Law is clear on the point that the testimony of a related witness is acceptable provided the same withstands the test of close scrutiny. In other words, the testimony of a related witness is admissible in evidence. The only thing is that the same has to be assessed with great care and caution. Judging from this yardstick the testimony of P.W.1 Durgesh Kumar does not inspire confidence to the court in view of many a things viz., it looked improbable that FIR was lodged so promptly within 15 minutes of the occurrence taking place despite the fact that distance between place of occurrence and the police station is only half a kilometer. This time (15 minutes) included writing of a complaint, going to police station and lodging of FIR. Secondly, as told earlier, Laxmi and Pushpa were conspicuous by their absence in the array of prosecution witnesses. No doubt they could have been the most natural witnesses had they been sitting by the side of victim when he was shot dead by assailant. But, unfortunately that was not to be. 12. Further, presence of P.W.1 Durgesh Kumar near the place of occurrence was doubtful. As per his testimony, he saw everything. No doubt they could have been the most natural witnesses had they been sitting by the side of victim when he was shot dead by assailant. But, unfortunately that was not to be. 12. Further, presence of P.W.1 Durgesh Kumar near the place of occurrence was doubtful. As per his testimony, he saw everything. According to his own statement, he heard entire conversation between appellant and victim. He could also see that appellant was holding country-made pistol in right hand. The bullet hit on the temple of the victim. Daughter Pushpa came outside. In a nutshell, he heard the details of conversation as well as saw the incident to the finest details but it was surprising that he did not try to intercept the inevitable. There are two aspects of the matter. If the view of the place of occurrence was so clear to P.W.1 Durgesh Kumar and he really witnessed the incident, he could have tried to intercept the incident. He did not do so. At least his legs could tremble. Incident must have sent shivers in spine. His presence near the spot becomes doubtful. He could have tried to save his real brother. The second aspect of the matter is that he did not see the incident. Since he was residing adjacent to victim’s house, he came to know of the incident from other close family members of victim. None of his wives or children came to depose, if at all they or any of them was present there. If he was really talking to P.W.2 Brijpal, his mind must be engrossed in the conversation. Then how could he narrate finest details of the incident? Either he was talking with absent mind, with all focus on the incident or the fact of his having talks with P.W.2 Brijpal was incorrect and he did not witness the incident in the manner he stated. Still further, there were variations in eyewitness account and site plan. 13. P.W.2 Brijpal was the brother-in-law of deceased Hira Lal. He said in his examination-in-chief that Hira Lal had two wives. Deepmala was begotten from first wife. He had no issue of his own from second wife (second wife had four children which were begotten from her first husband). He knew accused/appellant Om Prakash, who wanted to marry Deepmala, to which Hira Lal refused, resulting in annoyance of accused/appellant Om Prakash. 14. Deepmala was begotten from first wife. He had no issue of his own from second wife (second wife had four children which were begotten from her first husband). He knew accused/appellant Om Prakash, who wanted to marry Deepmala, to which Hira Lal refused, resulting in annoyance of accused/appellant Om Prakash. 14. Speaking about the incident, P.W.2 Brijpal said that on 06.08.1999 at 8:00 p.m. he was talking to his brother-in-law Durgesh Kumar near the door of Arvind. Victim Hira Lal was sitting in his room over a cot. Victim’s wife Laxmi and her daughter Pushpa were also sitting beside him. There was sufficient light in the area. Accused/appellant Om Prakash said that victim Hira Lal did not do the right thing by not marrying Deepmala to him (Om Prakash). Pushpa ran towards Om Prakash to stop him but in the mean time accused Om Prakash fired a shot on Hira Lal, pushed away Pushpa and ran away. Hira Lal died on the spot. P.W.1 Durgesh went to police station. P.W.2 Brijpal also accompanied him. Both saw accused/appellant Om Prakash firing on Hira Lal. 15. In his cross-examination, P.W.2 Brijpal admitted that he had no talks with accused/appellant Om Prakash. Walking distance between his house and victim’s house was 10 minutes. The distance was less than half a kilometer. Hira Lal’s doors were opened when the incident took place. Electric bulb was lighting outside the room of Hira Lal. One bulb was lighting inside the room. He along with Durgesh saw that the fire was shot near the ear of deceased. Accused had come from Bijri road. He saw accused coming to the residence of Hira Lal. He also saw Om Prakash carrying a pistol in his hands. He did not raise alarm because of perceived threat to his life. The motive to commit the murder was attributed to non-acceptance of proposal of Om Prakash to marry Deepmala. No panchayat was convened to settle the matter. Accused Om Prakash was wearing short pant and shirt. They did not try to chase the assailant because of fear to their life. He admitted the fact that Laxmi, wife of Hira Lal was sitting beside Hira Lal at a distance of 2½ - 3 feet on the cot. He also admitted that Laxmi did not receive pellet wounds. Accused Om Prakash was wearing short pant and shirt. They did not try to chase the assailant because of fear to their life. He admitted the fact that Laxmi, wife of Hira Lal was sitting beside Hira Lal at a distance of 2½ - 3 feet on the cot. He also admitted that Laxmi did not receive pellet wounds. He also admitted that people in Hira Lal’s neighbourhood came to the place of occurrence after Om Prakash fired on Hira Lal. They did not try to apprehend the assailant. He also said that no talk of Deepmala’s marriage with Om Prakash ever took place (in his presence). 16. P.W.2 Brijpal’s testimony suffered from same infirmity as that of P.W.1 Durgesh Kumar. Added to the same, he admitted that Laxmi, who was sitting at a close distance of Hira Lal did not receive pellet injury. No conversation took place regarding proposal of Om Prakash to marry Deepmala in presence of P.W.2 Brijpal, who was also closely related to deceased Hira Lal. 17. To elaborate further, P.W.2 Brijpal was talking to P.W.1 Durgesh Kumar near the door of one Arvind. He could view that victim was sitting on a cot. He could also see victim’s second wife Laxmi and daughter Pushpa. According to his own statement, P.W.2 Brijpal saw that assailant was armed with country-made pistol. He also saw firing by appellant on victim. He also heard conversation. This witness saw appellant going to the place of occurrence but admitted in cross-examination that he did not try to apprehend appellant. His testimony did not inspire confidence to the Court. According to his own admission, his house was about half a kilometer away from victim’s house. His presence near the place of occurrence appeared doubtful. Testimony of P.W.1 Durgesh Kumar and P.W.2 Brijpal thus meet the same fate. 18. According to complaint which was written by the real brother of deceased, appellant fired on his brother with country made pistol resulting into his brother’s death. Occurrence took place on 06.08.1999 at 8:00 pm. Informant must have gone inside the house where dead body of his brother was lying. Informant PW-1 Durgesh Kumar & PW-2 Brijpal must have spent some time inside the house. Walking distance between PW-2 Birjpal’s house and victim’s house was less than ½ km, which takes about 10 minutes. Then informant got the complaint scribbled by one Sanjiv Dhyani. Informant must have gone inside the house where dead body of his brother was lying. Informant PW-1 Durgesh Kumar & PW-2 Brijpal must have spent some time inside the house. Walking distance between PW-2 Birjpal’s house and victim’s house was less than ½ km, which takes about 10 minutes. Then informant got the complaint scribbled by one Sanjiv Dhyani. Thereafter informant went to Police Station to lodge FIR. In the circumstances, it is difficult to perceive that FIR could be lodged within 15 minutes of the incident. 19. P.W.4 Head Constable Kamalesh Chand Tripathi proved copy of G.D. (Ext.Ka-4) pertaining to country-made pistol 12 bore and an empty cartridge found from the possession of accused/appellant Om Prakash, who was challaned for the offence punishable under Section 25 Arms Act also. 20. P.W.5 Dr. Shailendra Kumar Mishra conducted post mortem on the dead body of Hira Lal on 07.08.1999 at 1 :00 p.m. He found following ante mortem injuries on dead body of Hira Lal: Round wound over right side of scalp about 6cm above right ear measuring 4 cm x 4 cm. Cranial deep, margin irregular, interwined, blackening scorching and tattooing with seinging hair present around the wound. Brain matter coming out of the wound. On further exploration of the wound, both of the temporal, parital, occipital broken bone present. 21. Doctor proved his report (Ext. Ka-5). According to him cause of death was shock and hemorrhage caused by ante-mortem injury. 22. P.W.6 Constable Umesh Mishra was the witness to recovery of country-made pistol (Material Ext.-1) and empty cartridge (Material Ext.-2) from the possession of accused/appellant Om Prakash on his confession and pointing out of the same. He was Signatory to recovery memo (Ext.Ka-6). 23. P.W.7 Constable Chani Ram proved chik FIR (Ext.Ka-7) which was lodged on the basis of complaint (Ext.Ka-1). He also proved copy of G.D. (Ext. Ka-8), chik FIR (Ext.Ka-9) pertaining to offence punishable under Section 25 Arms Act and copy of G.D. Ext. Ka-10 in respect thereof. 24. P’W.8 S.1. Dharam Singh proved site plan (Ext.Ka-11) and other documents from Ext.Ka-12 to Ext.Ka-16. He also proved recovery memo (Ext.Ka-6) which bears the signatures of accused/appellant Om Prakash. He also proved site plan (Ext.Ka-17) of offence under Section 25 Arms Act, sent underwear, under shirt, shirt, etc. for chemical examination (Ext.Ka- 18) and proved report of chemical analyst (Ext.Ka-20). P’W.8 S.1. Dharam Singh proved site plan (Ext.Ka-11) and other documents from Ext.Ka-12 to Ext.Ka-16. He also proved recovery memo (Ext.Ka-6) which bears the signatures of accused/appellant Om Prakash. He also proved site plan (Ext.Ka-17) of offence under Section 25 Arms Act, sent underwear, under shirt, shirt, etc. for chemical examination (Ext.Ka- 18) and proved report of chemical analyst (Ext.Ka-20). He submitted charge sheet (Ext.Ka-21) in the court against the accused/appellant Om Prakash for the offence punishable under Section 302 IPC. 25. P.W.9 S.I. Raj Kumar proved site plan (Ext.Ka-22) pertaining to offence under Section 25 Arms Act, obtained permission of District Magistrate (Ext. Ka-23) and submitted charge sheet (Ext.Ka-24) against the accused/appellant for the offence punishable under Section 25 Arms Act. 26. If appellant used the words that Hira Lal did not do good by not agreeing to his (appellant Om Prakash’s) proposal of marrying Deepmala, these words were not such words which made out a threat. These were not alarming words. As per prosecution version, on hearing these words, another daughter (Pushpa) came out and tried to catch hold of assailant. She heard that an unknown person came and communicated through window. The words used were not alarming words so that she should come out taking a round and trying to catch hold of assailant. No plausible explanation seems to be forthcoming as to why she came out and tried to catch hold of assailant. Brother of victim was hardly 20-30 paces away from the victim. Could he not walk a little faster to prevent the assault? Daughter tried to prevent killing but P.W.1 Durgesh and P.W.2 Brijpal who were hardly 20-30 paces away from the victim did not try to prevent killing. Wife of deceased and daughter of deceased were not produced on behalf of prosecution. People standing outside soon after killing were not produced. It was not a sudden action on the part of assailant. Eyelid could flicker. State of thrombosis was not the story here. Instead of jumping into the father, Pushpa had enough time to come outside the door and catch hold of assailant. The testimony of P.W.1 Durgesh and P.W.2 Brijpal was not acceptable because of the reasons mentioned in the body of judgment while this court was discussing their evidence. 27. Further, a gun and cartridge were sent for chemical-examination. How could they be linked to murder? The testimony of P.W.1 Durgesh and P.W.2 Brijpal was not acceptable because of the reasons mentioned in the body of judgment while this court was discussing their evidence. 27. Further, a gun and cartridge were sent for chemical-examination. How could they be linked to murder? Empty cartridge cannot remain inside the gun. It will be ejected out. Looking at the empty cartridge, how could it be said that empty cartridge was used in the gun? Recovery of country-made pistol on the confession and pointing of accused /appellant also appeared doubtful. 28. Daughter Pushpa, who caught hold of assassin, did not come to depose. So was Deepmala. Nothing has been said about her presence. Second wife of victim also did not come forward to support prosecution story. Two scared witnesses saw the incident from a distance. Some of the important questions, which should have been put to the accused under Section 313 Cr.P.C., were not put to him. We are not entering into that aspect of the matter. Discovery of incriminating article under Section 27 Indian Evidence Act was not worth accepting beyond reasonable doubt. 29. Prosecutlon could not prove the case against accused/appellant beyond reasonable doubt. Judgment & order dated 08.07.2002 passed by learned Sessions Judge Udham Singh Nagar calls for interference. 30. The criminal appeal preferred on behalf of the appellant Om Prakash alias Omi is thus allowed. The conviction and sentence awarded to the appellant by the learned trial court on 08.07.2002 is hereby set aside. The accused/appellant Om Prakash alias Omi is on bail. He need not surrender. Let the lower court record be sent back.