JUDGMENT Per: U.C. Dhyani, J The criminal law was set into motion by Swarn Singh son of Singhara Singh by lodging an FIR in P.S. Nanakmatta on 22.08.1992 at 8:30 pm. The incident was alleged to have taken place on 22.08.1992 at 5:30 pm. The distance between the police station and the place of occurrence is 7 kms hence there appears to be no delay in lodging the FIR. 2. According to the complainant Swarn Singh, on 22.08.1992 when he along with his father Singhara Singh, mother Veera Kaur and maternal uncle Preetam Singh were going on tractor no. UGP 1815 from Nanakmatta to their village Dhyanpur Kaithuliya and his father was driving the tractor, accused persons Pahalwan Singh, Resham Singh, Deleep Singh, Jagir Singh, Veer Singh and Darshan Singh inflicted such injuries on complainant’s father Singhara Singh that he died on the spot. Elaborating the details of the incident, the complainant has mentioned in FIR that (witnesses) Pratap Singh and Gurdeep Singh were coming on bicycles. They were behind the tractor which was being driven by Singhara Singh. It was 5:30 pm. When the tractor reached one kilometer short of their residence, they found that a bullock cart had stopped their passage on the road. As soon as the tractor stopped near the bullock cart, co-villager Pahalwan Singh son of Khan Singh appeared. He, along with other co-accused were hiding near a tree. He was having a sword in his hand. Among the other co-accused, Resham Singh son of Khan Singh was having a country made pistol, Daleep Singh son of Khan Singh was having a ballam (a sharp edged weapon), Jagir Singh son of Daleep Singh was having a country made pistol, Veer Singh son of Daleep Singh was having campa, (a sharp edged weapon) and Darshan Singh son of Arur Singh was having a country made pistol. They started hurling abuses on them and said that none of Singhara Singh’s family would remain alive. Resham Singh fired with his country made pistol which hit Singhara Singh. Pahalwan Singh with his sword, Darshan Singh with his country made pistol and Veer Singh with his campa (a sharp edged weapon) inflicted blows on Singhara Singh. He fell from the tractor and died instantly. On raising alarm, all the accused persons fled away on bullock cart. The informant, his mother and maternal uncle could not dare to fight the assailants. He fell from the tractor and died instantly. On raising alarm, all the accused persons fled away on bullock cart. The informant, his mother and maternal uncle could not dare to fight the assailants. The witnesses saw the incident. The motive to commit the crime was attributed to the fact that Singhara Singh did not permit the accused persons to construct a road and denied access to the accused through the boundaries of their fields. The said FIR was lodged under section 147, 148, 149 and 302 IPC. 3. After conducting investigation, the Investigating Officer submitted charge sheet for the offences punishable under sections 147,148, 149 and 302 IPC against the accused persons namely Pahalwan Singh, Resham Singh, Daleep Singh, Veer Singh, Darshan Singh and Jagir Singh. After submission of charge sheet accused Veer Singh died and therefore case against him stood abated. The charge sheets against Resham Singh and Darshan Singh were also filed under section 25 Arms Act. 4. The trial court framed charges against the aforesaid accused persons for the offences punishable under sections 147, 148, 302 /149 IPC. Separate charges against Resham Singh and Darshan Singh were also framed under section 25 Arms Act. All the accused pleaded not guilty to the charges framed against them and claimed trial. 5. As many as six witnesses viz., PW 1 Swarn Singh, PW 2 Pratap Singh, PW 3 Doctor S.P.Ojha, PW 4 Preetam Singh, PW 5 SI K R Arya and PW 6 SI Devendra Singh Digari were produced on behalf of the prosecution. Statements of the accused persons under section 313 Cr.P.C. were taken. They said that they have been falsely implicated in the case. No evidence was adduced in defence. 6. After conclusion of the trial, learned trial court acquitted Resham Singh and Darshan Singh for the charge under section 25 Arms Act. The trial court has however, convicted Pahawan Singh, Resham Singh, Daleep Singh, Veer Singh and Darshan Singh for the offences punishable under sections 302 /149 and section 148 IPC. Each one of the accused was awarded imprisonment for life and were also directed to pay a fine of Rs. 2000/- each, in default of which they were required to undergo further imprisonment for six months. Each of them was awarded three years rigorous imprisonment under section 148 IPC. 7. Each one of the accused was awarded imprisonment for life and were also directed to pay a fine of Rs. 2000/- each, in default of which they were required to undergo further imprisonment for six months. Each of them was awarded three years rigorous imprisonment under section 148 IPC. 7. Aggrieved against the order of the trial court dated 20.06.2002 the accused appellants have preferred this criminal appeal. 8. PW 1 Swarn Singh was the informant. In his examination-in-chief he has supported the contents of FIR and has proved his complaint Ext. Ka –1. 9. PW 2 Pratap Singh was the eyewitness to the incident. His name was mentioned in the FIR. According to FIR, Pratap Singh and Gurdeo Singh were coming on bicycles behind the tractor which was being driven by Singhra Singh, the victim. In his examination-in-chief, PW 2 Pratap Singh has supported the prosecution story. No useful purpose will be served by narrating the prosecution story time and again. The same will however, be summed up in the concluding paragraphs of this judgment. 10. PW 3 Doctor S.P.Ojha was posted as Medical Officer in Base Hospital on 23.08.1992. On that day he had conducted post-mortem on the dead body of Singhara Singh. The doctor has proved his report Ext. Ka-3. He found the following ante mortem injuries on the dead body of Singhara Singh : 1) I.W. 15 x 2 cm. on upper side of head & head bone was broken. 2) I.W. 16 x 2 cm. left side of face from behind the ear towards the face. Mandible jaw broken. 3) I.W. 3 x 2 cm. right side of face and the right jaw bone broken. 4) Gun shot wound entry 3 cm. x 2.5 cm. left side of back. Blackening & tattooing was present no scorching present and after probing the wound one tickle and pallets found. 5) Gun shot wound of entry 3 cm. x 4 cm. right side of chest collar bone & ribs were fractured. Blackening and tattooing present. 6) I.W. of 3 x ½ cm. right side of chest near the nipple. 11. According to the doctor, the patient expired as a result of shock and haemorrhage due to ante mortem injuries. 12. In his cross-examination doctor S.P.Ojha has said that death of victim was possible on 22.08.1992 in the night. Blackening and tattooing present. 6) I.W. of 3 x ½ cm. right side of chest near the nipple. 11. According to the doctor, the patient expired as a result of shock and haemorrhage due to ante mortem injuries. 12. In his cross-examination doctor S.P.Ojha has said that death of victim was possible on 22.08.1992 in the night. There was possibility of difference of six to twelve hours time in the death of victim. 13. PW 4 Preetam Singh did not support the prosecution story. He denied having any incriminating article recovered from the possession of Pahalwan Singh or Darshan Singh. This witness was declared hostile and was permitted to be cross-examined by learned DGC. Nothing has come in the testimony of PW 4 Preetam Singh which may help prosecution. 14. PW 5 SI K.R.Arya was posted on 22.08.1992 as Station Officer in P.S. Nanakmatta. He has proved chik FIR Ext. Ka-4, copy of GD Ext. Ka-5, inquest report Ext. Ka-2, different papers of prosecution from Ext. Ka-6 to Ext. Ka-10, memo of taking blood stained soil/simple soil Ext. Ka- 11, recovery memo relating to the recovery of sword and country made pistol from the possession of accused Pahalwan Singh and Darshan Singh respectively as Ext. Ka-12, chik FIR under section 25 Arms Act against accused Darshan Singh as Ext. Ka-13, copy of GD Ext Ka-14, recovery memo of incriminating article from the possession of Resham Singh as Ext. Ka-15, chik FIR under section 25 Arms Act against accused Resham Singh (Ext Ka-16), entry in GD as Ext. Ka-17 and site plan Ext.Ka-15. He has also proved various material exhibits including incriminating articles used in the commission of crime which were produced before the learned trial court. After conducting investigation a great length, the remaining investigation was handed over to SI Devender Singh Digari. 15. PW 6 Devender Singh Digari had taken over investigation from PW 5 SI K.R. Arya. He has proved site plan relating to recovery of sword from the possession of Pahalwan Singh (Ext. Ka-19), site plan relating to recovery of country made pistol from the possession of Resham Singh, site plan relating to recovery of Ballam (a sharp edged weapon) on the confession of accused Daleep Singh and Kanta (a sharp edged weapon) on the pointing of accused Daleep Singh. All these things were shown in Ext. Ka-20. Ka-19), site plan relating to recovery of country made pistol from the possession of Resham Singh, site plan relating to recovery of Ballam (a sharp edged weapon) on the confession of accused Daleep Singh and Kanta (a sharp edged weapon) on the pointing of accused Daleep Singh. All these things were shown in Ext. Ka-20. He had taken statements of the witnesses and finally submitted charge sheet Ext. Ka-21 against the accused persons for the offence punishable under sections 147, 148, 149 and 302 IPC. The subsequent Investigating Officer sent nine articles to Forensic Science Laboratory, Agra for chemical examination. 16. The sum and substance of the evidence tendered by the prosecution witnesses is that on 22.08.1992 the informant Swaran Singh along with his father Singhara Singh (deceased), mother Veera Kaur and maternal uncle (mama) Pritam Singh, resident of Sunkhari were coming back from Nanakmatta on tractor No. UGP 1815 to their village Dhyanpur Kothalia Singhara Singh was driving the tractor. Pratap Singh son of Nathha Singh resident of Tukri and Gurdeep Singh son of Kushal Singh resident of Devkali, P.S. Nanakmatta were coming behind the tractor on bicycles. At about 5:30 pm when tractor was just a kilometer away from the house of the informant and reached near a cotton tree they saw that the road was blocked by a bullock-cart and when the tractor stopped near the cart, immediately, from behind the tree Pahalwan Singh son of Khan Singh who was carrying a sword, Resham Singh son of Khan Singh with a country made pistol, Daleep Singh son of Khan Singh carrying a spear (ballam), Jagir Singh son of Daleep Singh carrying a country made pistol, Veer Singh son of Daleep Singh having a campa ( a sharp edged weapon) and Darshan Singh son of Arur Singh carrying a country made pistol came abusing in front of the tractor and said that they will not leave him (Singhara Singh) alive today. On this Resham Singh fired from his country made pistol which hit the deceased on his back and then Pahalwan Singh with sword, Darshan Singh with the country made pistol (tamancha), Veer Singh with campa attacked Singhara Singh ( victim ) as a result the victim fell down from the tractor and died. When the informant along with others raised hue and cry the accused took the bullock-cart and left the spot. 17. When the informant along with others raised hue and cry the accused took the bullock-cart and left the spot. 17. Informant and others did not try to stop the accused as they were very much frightened with this incident. All have seen the whole incident. Accused had enmity with the deceased due to construction of some road and due to usage of a culvert for going and coming etc. 18. Learned counsel for the appellants has submitted that a similar case was instituted against the appellants under the Gangsters Act. Prosecution witness 1 Swarn Singh appeared in the witness box in that case. The case under the Gangsters Act was instituted six years after the institution of the present case. PW 1 Swarn Singh did not support the prosecution story in the case against the appellants under the Gangsters Act. Swarn Singh deposed before the Special Court that he did not see any incident on 22.08.1992 and he was at home on that day. When he was confronted with his statement under section 161 Cr.P.C., Swarn Singh had said that he was under pressure and that is why he supported prosecution version in his statement under section 161 Cr.P.C. (in the case under the Gangsters Act). Since no such document is available on record before us therefore, this Court is not inclined to agree with submission of learned counsel for the appellant in this respect. 19. The most important aspect of the case was highlighted by learned counsel for the appellants when he submitted that there is no correlation between the testimony of eyewitnesses and the medical evidence. He has drawn the attention of the Court towards the anomaly in the eyewitness account and medical evidence. It has specifically come in the FIR that the accused-appellants inflicted injuries on Singhara Singh from the front. But the post-mortem report Ext Ka-3 reveals otherwise. The seat of gunshot wound entry of Singhara Singh was on the back at left hand side. This fact suggests that the injury was inflicted from the back and not from the front. It is the specific case of the informant that the appellants came abusing in front of the tractor, said that they will not leave Singhara Singh today and then inflicted injuries with the weapons which the appellants were carrying in their hands. How then Singhara Singh (victim) sustained injury on his back? It is the specific case of the informant that the appellants came abusing in front of the tractor, said that they will not leave Singhara Singh today and then inflicted injuries with the weapons which the appellants were carrying in their hands. How then Singhara Singh (victim) sustained injury on his back? Learned AGA was gracious enough to admit the arguments advanced on behalf of the learned counsel for the appellants in this respect, to say that the medical evidence did not support the eyewitness account. This Court is inclined to agree with the said submission that the injured person received injuries not only from the front but also from the back and there lies the material inconsistency between the ocular version and medical evidence. It has also been submitted on behalf of the appellants that the injuries sustained by sharp edged weapons were from down to up and not from up to down and therefore, there is inconsistency between the eyewitness account and medical evidence in this respect also. 20. According to PW1 Swarn Singh, appellant Resham Singh caused firearm injury to his father which hit upon his back. As a consequence thereof, Singhara Singh (victim) fell down from the tractor. When Singhara Singh fell down on the ground, then Darshan Singh and Jagir Singh fired on him with country-made pistols. Veer Singh, Pahalwan Singh and Daleep Singh were the other assailants. It was the contention of learned counsel for the appellants that the oral evidence regarding injury to the victim do not tally with medical evidence. We find substance in the argument thus advanced on behalf of the appellants, in as much as if we believe the statement of PW1 Swarn Singh that Resham Singh’s bullet hit the back of Singhara Singh, then there is no explanation for ante mortem injury no.5 (gun shot wound of entry 3cm × 4cm right side of chest… blackening and tattooing present). There is also no explanation of injury no. 6 (incised wound of 3cm × ½ cm right side of chest near the nipple). In other words, if the testimony of PW1 Swarn Singh on the manner of inflicting injuries is to be believed then there should not be ante mortem injuries on the front of deceased. In normal course if the assailants fire from the front, as is the prosecution case in hand, there is justification for injury no. In other words, if the testimony of PW1 Swarn Singh on the manner of inflicting injuries is to be believed then there should not be ante mortem injuries on the front of deceased. In normal course if the assailants fire from the front, as is the prosecution case in hand, there is justification for injury no. 5 & 6, but there is no justification for injury no. 4 (gun shot wound entry 3cm × 2.5 cm of back blackening and tattooing present, no scorching present and after probing the wound one tickle and pallets found). In other words, if the testimony of prosecution witnesses is believed on the fact that the assailants hit Singhara Singh from the front, then the injury no. 4 should not have been there. It is not the case of the prosecution that Singhara Singh, while driving the tractor, bent in such a way that the bullet hit his back. It has come in the cross-examination of PW1 Swarn Singh (page no.7) that the assailants fired from the front. He was categorical in his statement to say that the assailants stood in front of the tractor and started firing (on the victim) from the front. In all, three bullets were fired. The assailants fired from a distance of 5-6 paces. PW2 Pratap Singh, on the other hand, said that Resham Singh fired on Singhara Singh from his back and Darshan Singh, Jagir Singh fired on the victim from the front. PW2 Pratap Singh has also said that Resham Singh stepped into the tractor and fired from behind which hit the back of deceased (it appeared to be a new development). In all there were three fires. Thus, there is material contradiction in the eyewitness account of PW1 Swarn Singh and PW2 Pratap Singh in the manner of causing firearm injuries to the victim. There is no doubt that the ante mortem injuries might be explained in the light of evidence of PW2 Pratap Singh but again, there is no explanation as regards variation in his oral account with that of PW1 Swarn Singh’s eyewitness account on this material aspect. PW3 Dr. S.P. Ojha in his cross-examination has said that injury no.5 was possible when the assailant hit the victim from a height. He has also said that injury no.4 was possible when the assailant fired upon the victim from below (comparatively low level). PW3 Dr. S.P. Ojha in his cross-examination has said that injury no.5 was possible when the assailant hit the victim from a height. He has also said that injury no.4 was possible when the assailant fired upon the victim from below (comparatively low level). A reasonable suspicion, suspicion of a common prudent man therefore, arises whether the incident really took place in the manner as depicted by the eyewitnesses? 21. Learned counsel for the appellant also has argued that the eyewitnesses named the appellants because of proven fact of enmity. That is not a very important submission in view of the fact that in cases of direct evidence, motive loses all its importance. If this Court was going to believe the prosecution story, it would not have considered this aspect of motive because it was a case of direct evidence in which the element of motive goes into the oblivion. 22. In a nutshell, the eyewitness account of PW 1 Swarn Singh, who is the son of deceased does not correlate with the medical evidence. The only thing is that how do we reconcile prosecution evidence with medical evidence? Medical evidence does not support the eyewitness account. One of the injury on the body of Singhara Singh was from the backside whereas the appellants were alleged to have inflicted blows on him from the front. Enmity is a double edged weapon. If one can harm other on account of enmity, there is also a possibility that the other person may implicate the first one on account the said enmity. Criminal jurisprudence is tilted in favour of the appellants in these circumstances. PW 2 Pratap Singh who was going by cycle on the fateful day cannot be said to be a non-partisan witness, for, Pratap Singh was distantly related to the informant. PW 4 Preetam Singh, another eyewitness as mentioned in FIR has not supported the prosecution story. This witness Preetam Singh was said to be accompanying informant and victim in the tractor. He is the maternal uncle of the informant and even then he did not support the prosecution story. Evidence of PW 3 Doctor S. P. Ojha does not support Swarn Singh and Pratap Singh, so far as the manner of inflicting blows and seat of injury is concerned. 23. There is yet another aspect of the case. He is the maternal uncle of the informant and even then he did not support the prosecution story. Evidence of PW 3 Doctor S. P. Ojha does not support Swarn Singh and Pratap Singh, so far as the manner of inflicting blows and seat of injury is concerned. 23. There is yet another aspect of the case. PW1 Swarn Singh has said (page no.7 of cross-examination) that his father Singhara Singh was driving the tractor. He was sitting on his right hand side. His mother and Pritam Singh were sitting on the left hand side on the mudguard. PW2 Pratap Singh has also said that the tractor was being driven by Singhara Singh. His son Swarn Singh, his wife and Pritam Singh were also sitting with him on tractor. It appears improbable that none of the witnesses sitting on mudguard on the left and right of the victim sustained any pallet injury, when firing was done from the front of the tractor using 12 bore cartridge from a distance of 5 to 6 paces at least. 24. There appears to be yet another anomaly in the prosecution story. According to PW1 Swarn Singh, the assailants fled away on the bullock-cart. He has admitted that the bullock-cart cannot run fast. FIR also indicates that the appellants fled away on the bullock-cart. Whereas PW1 Swarn Singh said that the lights of tractor were on (page no.7), PW2 Pratap Singh on (page no.3) has said that the bulbs of tractor were off. Complainant along with his family members who were present on the place of occurrence were scared and therefore, they could not challenge the assailants. Is it possible that the assailants could afford to adopt a leisurely approach in escaping from the spot? Is it probable in the circumstances that the assailants could think of fleeing away in a bullock-cart after committing such a gruesome murder? 25. There are material variations in the cross-examination contradictions were pinpointed by learned counsel for the appellants in the testimony of these two eyewitnesses on material aspects. The quality of their evidence does not lend assurance. The result is that the findings arrived at by learned trial court cannot sustain because prosecution has not been able to prove its case against the appellants beyond reasonable doubt. 26. The quality of their evidence does not lend assurance. The result is that the findings arrived at by learned trial court cannot sustain because prosecution has not been able to prove its case against the appellants beyond reasonable doubt. 26. The criminal appeals preferred on behalf of the appellants Darshan Singh, Dilip Singh, Pahalwan Singh, Resham Singh and Veer Singh are thus allowed. The conviction and sentence awarded to the appellants by the learned trial court on 20.06.2002 are hereby set aside. The accused-appellants Darshan Singh, Dilip Singh, Pahalwan Singh, Resham Singh and Veer Singh are on bail. They need not surrender. Let the lower court record be sent back.