JUDGMENT Per: U.C. Dhyani, J In the instant case, the criminal law was set into motion by lodgment of a complaint on 25.02.2000 at 6:00 pm at Patwari Circle, Harda, (Bhikiyasain, Almora) by the unfortunate father of the deceased. The incident related to killing of his son by the appellants. 2. Informant Bakhtawar Singh Bisht wrote a complaint (Ext. ka-1) addressed to Naib Tehsildar, Bhikiyasain to the effect that on 25.02.2000 when his son Pancham Singh had gone to dairy centre for the purpose of vending milk and informant was going to ease himself at 7:00 pm, then he heard the cries from a distance of 100 meters. Informant approached that place only to find out that his son Pancham Singh was stabbed by the assailants. His son was bleeding profusely. A blow of knife was inflicted on the left side of his chest. The informant saw appellants Anil Singh, Sunil Singh and accused Bhaga Devi fleeing away from the place of occurrence. All the three killed his son, who, when brought to home, breathed his last. Appellants had previous enmity with victim before this incident. 3. After the investigation of the case a charge sheet for the offence punishable under section 302 IPC was submitted against both the appellants and accused Bhaga Devi by the Investigating Officer. When the trial commenced, charge for the offence punishable under section 302 IPC read with section 34 IPC was framed against the accused persons who pleaded not guilty and claimed trial. Prosecution witnesses were examined in the trial court. Thereafter, statements of the accused persons under section 313 Cr.P.C. were taken in which they said that they have falsely been implicated in this case. Trial court believed the prosecution story in part and convicted appellants Anil Singh and Sunil Singh for the offence punishable under section 302 IPC read with section 34 IPC. They were awarded imprisonment for life as well as fine of Rs. 1000/- each, in default of which they were directed to undergo two months simple imprisonment. Third accused Bhaga Devi was exonerated of the charge leveled against her. Aggrieved against the said judgment and order the appellants (convicts) have preferred this appeal. 4. PW 1 Smt. Vimla Devi was the unfortunate wife of deceased Pancham Singh. 1000/- each, in default of which they were directed to undergo two months simple imprisonment. Third accused Bhaga Devi was exonerated of the charge leveled against her. Aggrieved against the said judgment and order the appellants (convicts) have preferred this appeal. 4. PW 1 Smt. Vimla Devi was the unfortunate wife of deceased Pancham Singh. She stated in her examination-in-chief that when her husband had gone to Tallabaud to respond to an invitation, accused persons quarreled with her husband. The same was disclosed to her by the villagers. On the fateful day, when her husband was returning from Mallachaud after vending milk, accused appellants Anil Singh threw chilli water in his eyes. Co-accused Sunil Singh caught hold of him and Anil inflicted a blow of knife on her husband. Her father-in-law reached the place of occurrence. She followed her father-in-law. Her husband was taken to the residence by her father-in-law where her husband died. Accused appellants Anil Singh and Sunil Singh had a dispute with her husband some 2-3 years ago and Bhaga Devi had instigated them for the same. 5. PW2 Bakhtawar Singh was the unfortunate father of the deceased Pancham Singh. He said in his examination-in-chief that his son had gone to Mallabaud for dairying on the fateful day. When his son was coming back and the witness had gone to ease himself, he heard the cries. This witness saw from a distance of 20 feet that appellant Anil was taking out knife from Pancham Singh’s chest. Thereafter, appellant Anil Singh fled away. When appellant Anil Singh was taking out knife, co-accused appellant Sunil Singh and one Smt. Bhaga Devi were also there. All of them ran away from the spot. This witness took his son to his home but he could not be saved. His chest was bleeding profusely. Thereafter, dead body of Pancham was taken to Ranikhet for postmortem . An FIR was lodged to this effect. This witness has proved the complaint (Ext. ka-1) lodged by him. The reasons attributed to the crime was that the appellants used to quarrel with Pancham before this incident. 6. PW 3 Prahalad Singh has not supported the prosecution story. He was declared hostile and was cross-examined by ADGC (Criminal) but nothing has come out in his cross-examination which may help prosecution. 7. ka-1) lodged by him. The reasons attributed to the crime was that the appellants used to quarrel with Pancham before this incident. 6. PW 3 Prahalad Singh has not supported the prosecution story. He was declared hostile and was cross-examined by ADGC (Criminal) but nothing has come out in his cross-examination which may help prosecution. 7. PW 4 Doctor C. N. Maheshwari had conducted postmortem on the dead body of Pancham Singh on 27.02.2000 at 11 am at Civil Hospital, Ranikhet. He found following ante mortem injuries on the dead body of Pancham Singh : Stab wound over left side of chest size 2.5 x 1 cm deep. Oblique in direction. 5 cm below and inward fromleft nipple at level right indepth 7th rib to sternum. Direction of wound upward & margins are clean cut. 8. The cause of death was shock and hemorrhage due to ante mortem injuries. In the cross-examination Doctor said that the weapon (knife) by which the blow was inflicted on the victim must be blood stained one. 9. PW 5 Khayali Ram, Patwari was the Investigating Officer of the case who lodged chik FIR (Ext. Ka-3) on the basis of complaint (Ext. Ka-1). He investigated the case, prepared site plan (Ext. Ka-6 & Ext. Ka -7), sent the knife to the Forensic Science Laboratory and finally submitted charge sheet (Ext. Ka-13) against the accused persons. In the report dated 02.11.2000 the Assistant Director, FSL, Agra found the blood stains on the knife in disintegrated condition. 10. According to PW 2 Bakhtawar Singh the knife was being pulled out from the chest of victim Pancham Singh by appellant Anil. The father took his son to home but could not be saved. Pancham Singh died at his home. The father took the dead body of the son for postmortem at Ranikhet Civil Hospital and only then the FIR was lodged. It was mentioned that the informant had seen three persons fleeing away from the place of occurrence. FIR is not a proof in itself. The case is proved through evidence. Father of the victim looked from a distance of 22 yards that appellant Anil Singh was taking out knife from chest of the victim and thereafter he, along with others fled away from the scene. He took his son to the house where he died. Father did not go to the police. The case is proved through evidence. Father of the victim looked from a distance of 22 yards that appellant Anil Singh was taking out knife from chest of the victim and thereafter he, along with others fled away from the scene. He took his son to the house where he died. Father did not go to the police. Instead he went to Ranikhet for the postmortem of dead body of his son. He lodged the FIR only thereafter. In the FIR he talked about fleeing away of the appellants from the spot. The fact of looking at the appellant from a distance of 22 yards was not disclosed to the police. Why the court will believe him? The reasons are not far to seek. It is difficult to countenance the plea that father saw pulling out of knife by appellant Anil from a distance of 22 yards. Secondly, why did he go for the postmortem on the dead body of his son to a distance of 80 kilometers? Bhikiyasain where the alleged occurrence took place is 80 kilometers away from Ranikhet. Why did he not lodge the complaint (FIR) at the first instance? When the son was already dead there was no hurry to conduct postmortem on his dead body. Had he been breathing or had he been alive there was justification for taking son to a hospital but once he had breathed his last, postmortem on his dead body was not a priority. Lodging of FIR should have been a priority. Furthermore, taking the dead body to a distance of 80 kilometers is also a stumbling block in accepting evidence of the father. Still further, how a postmortem can be done without an FIR ? We have yet to come across an incident where the Doctor has conducted postmortem on the dead body of a victim without lodgment of FIR. Why the court will believe such postmortem report ? Postmortem was not conducted in the presence of police. The dead body was not brought to the hospital by the police. Ironically, inquest was also not conducted. Where is the evidence that Pancham Singh died of a stab wound ? The normal procedure in our understanding is that in injury/death cases an FIR is lodged first, followed by inquest and postmortem. Here there is no evidence of conducting inquest. The dead body was not brought to the hospital by the police. Ironically, inquest was also not conducted. Where is the evidence that Pancham Singh died of a stab wound ? The normal procedure in our understanding is that in injury/death cases an FIR is lodged first, followed by inquest and postmortem. Here there is no evidence of conducting inquest. Here postmortem on the dead body of the victim was conducted followed by FIR. There is no clinching evidence that the appellants have inflicted stab wound on the chest of victim. Father only saw a part of the incident (pulling out of a knife) from a distance of 22 yards. The appellants cannot be convicted only upon this much evidence of PW 2 Bakhtawar Singh. The motive to commit the crime is also obscure, for it has only been alleged that the appellants used to quarrel with Pancham Singh. No concrete reason has been assigned either in the FIR or in the evidence as to what was the motive to commit the crime. Had there been direct evidence, the factum of motive would have been put into backburner but unfortunately the same is not the case in hand. There is no direct evidence and if at all it is there, it is worth the namesake i.e. a solitary witness looking the appellant at a distance of 22 yards pulling out knife from chest of his son. This piece of evidence is hardly convincing. Father did not try to apprehend the assailants. Dying son did not disclose anything to his father. When this piece of evidence was put to the accused, they have denied the same in statements under section 313 Cr.P.C. Lodger of FIR did not disclose the details of enmity. It appears to us that the oral evidence relating to looking at victim from a distance of 22 yards is an improvement in the prosecution story and the same is therefore chucked of. There is nothing on record except the lackluster evidence of PW 2 Bakhtawar Singh (father of the deceased). 11. This prosecution story may not be acceptable to a prudent person. Fact of looking at things from a distance of 22 yards appears to be improvement. Co-appellant Sunil Singh has not been assigned any role except the fact that he was fleeing away from the spot. 11. This prosecution story may not be acceptable to a prudent person. Fact of looking at things from a distance of 22 yards appears to be improvement. Co-appellant Sunil Singh has not been assigned any role except the fact that he was fleeing away from the spot. What kind of enmity was there between the appellants and the deceased has not come to the forefront. It was said during the arguments that both were milk sellers but the kind of enmity has not come to the surface. 12. The third accused was exonerated by the learned trial court. No Government Appeal was preferred against her acquittal. We are not going into that aspect. Learned Additional Government Advocate submitted that the appellants were in the proximity of the victim. Why the informant will name the appellants unnecessarily when there are so many neighbours? In our opinion, the appellants cannot be held guilty only on this plea, especially when there is no direct, indirect or circumstantial evidence to prove the guilty against the appellants. Whatever the evidence, it is worth namesake. It is an admitted fact that the informant has taken a plea in the FIR as well as in the oral testimony that the appellants had enmity with victim. Though the same has not been proved, yet the fact remains that the informant might have implicated the appellants on the preconceived notion that since the appellants were inimical to the victim therefore, they have committed gruesome murder. Last but not the least, the prosecution has relied upon the recovery of knife at the instance and pointing out of appellant Anil Singh. No doubt, recovery memo of knife (Ext. Ka-11) bears the signatures of the appellants but the uncorroborated oral testimony of PW 5 Khyali Ram, Patwari hardly lends credence to this fact. PW2 Bakhtawar Singh in his cross-examination at page 45 of the paper book has admitted that inflicting a blow of knife on the victim by the appellant Anil was not mentioned in the FIR. Patwari (IO) has not recorded in his statement that father of deceased saw pulling out of knife from the chest of victim from a distance of 22 feet (page 44 of paper book). 13. The prosecution has not been able to prove its case against the appellants beyond doubt. Patwari (IO) has not recorded in his statement that father of deceased saw pulling out of knife from the chest of victim from a distance of 22 feet (page 44 of paper book). 13. The prosecution has not been able to prove its case against the appellants beyond doubt. We are unable to accept the findings recorded by the Additional Sessions Judge/FTC Almora dated 27.11.2002 so far as it relates to appellants Anil Singh and Sunil Singh whereby they were convicted for the offence punishable under section 302 IPC read with section 34 IPC. 14. Appeal preferred on behalf of the appellants Anil Singh and Sunil Singh is therefore, allowed. The judgment and order dated 27.11.2002 passed by learned trial court so far as it relates to appellants Anil Singh and Sunil Singh is accordingly set aside. The conviction recorded in respect thereof and sentence thus awarded are also set aside. Appellants are on bail. They need not surrender. Let the lower court record be sent back.