Surendra Kumar, J. 1. Heard Sri Satish Trivedi, learned Senior Advocate assisted by S/Sri A.K. Pandey, A.N. Mishra, Ashish Mani Tripathi, learned counsel for the appellants, learned AGA for the State of U.P. and Sri S.P. Singh, learned counsel for the complainant. 2. Three appellants Makkhan son of Dwarika, Pyare and Nanhey sons of Baladin, have preferred this appeal under Section 374( 2) of the Code of Criminal Procedure, 1973 ( in short referred to as Cr.P.C.) challenging the conviction and sentence recorded against them by the Ist Additional Sessions Judge, Jaunpur, in S.T. No.89 of 1982 State Vs. Makkhan and others, under Sections 302/34 of the Indian Penal Code ( in short referred to as IPC) relating to Case Crime No.126 of 1982, Police Station Kotwali, District Jaunpur, vide judgment and order dated 10.6.1983. Each of three appellants was convicted under Section 302 /34 IPC and sentenced to undergo imprisonment for life. One co-accused Ram Kishun son of Nanhku was not held guilty under Section 302 /34 IPC and was acquitted finding him to be entitled to the benefit of doubt. 3. The prosecution story as unfolded is that on 18.2.1982, Ratti Lal ( deceased) in the afternoon had gone to see his field and ease himself on the river Gomti. On his return journey, he reached the southern gate of Lalji Chitra Mandir at 4:30 p.m., his wife Smt. Chandrawati Devi PW-3, his son Ravindra Kumar were following him at the distance of 15 paces. The first informant Achchey Lal PW-1 was standing near his Gumti situated towards the West of his restaurant namely Pushpanjali restaurant. At that time, the accused Makkhan, Pyare and Ram Kishun armed with country made pistol along with co-accused Nanhey having bomb came there. Seeing Ratti Lal coming from northern side, they fired at him. The accused Nanhey took out bomb from his plastic bag and hurled at Ratti Lal, then the accused Pyare came near and fired at Ratti Lal from a close distance which hit him in his chest. After sustaining injury of fire shot, Ratti Lal fell down and died. On hearing the aforesaid fire shots and bomb explosion, Vijai Kumar PW-2 ( nephew of Ratti Lal), Prem Lal, Rampat rushed to help, then the accused persons fled away. Achchey Lal boarded the injured Ratti Lal on rickshaw and proceeded to District Hospital, Jaunpur. After sustaining injury of fire shot, Ratti Lal fell down and died. On hearing the aforesaid fire shots and bomb explosion, Vijai Kumar PW-2 ( nephew of Ratti Lal), Prem Lal, Rampat rushed to help, then the accused persons fled away. Achchey Lal boarded the injured Ratti Lal on rickshaw and proceeded to District Hospital, Jaunpur. The doctors on duty examined Ratti Lal and declared him dead. Achchey Lal then got the first information report Exhibit Ka-1 scribed by Shobh Nath Arya and went to Police Station Kotwali, and lodged the same at 5:20 p.m. 4. All this exercise was completed within short span of fifty minutes of the said murder in which the accused persons were named with the specific role including hurling of bomb by one accused Nanhey at the deceased. This first information report clearly depicts that each of three accused persons fired one shot at the deceased and one accused Pyare fired one more shot in the chest of the deceased. Thus, in all four shots were allegedly made by three accused persons who were armed with Katta/country made pistols. 5. Ratti Lal was murdered by hand bomb and the firing made by the country made pistols in front of Lalji Chitra Mandir on 18.2.1982 at 4:30 p.m. One Nanhey has been assigned the role of hurling bomb and remaining three accused persons have been assigned the role of firing with country made pistols at the deceased Ratti Lal. 6. On the basis of the aforesaid Exhibit Ka-1, the Head Constable Mahendra Rai PW-6 prepared Chik report Exhibit Ka-7 and made its entry in G.D. at serial no.36 Exhibit Ka-8. 7. S.I. Sri Ram Dutt Mishra PW-7 had gone to the Session Court for evidence on the date of the incident. He was there till 5:00 p.m. When he came to know about the occurrence, he proceeded to Lalji Chitra Mandir where Ratti Lal was shot dead. On reaching there, copies of the first information report and G.D. were delivered to him by Constable Kamil Akhtar. He ( PW-7) immediately started investigation, interrogated the first informant Achchey Lal PW-1, Vijai Kumar PW-2 and Smt. Chandrawati Devi ( wife of the deceased) PW-3 who are eyewitnesses. On reaching there, copies of the first information report and G.D. were delivered to him by Constable Kamil Akhtar. He ( PW-7) immediately started investigation, interrogated the first informant Achchey Lal PW-1, Vijai Kumar PW-2 and Smt. Chandrawati Devi ( wife of the deceased) PW-3 who are eyewitnesses. At their instance, he inspected the scene of occurrence and prepared site plan Exhibit Ka 7-A. The Investigating Officer found one empty cartridge, five pellets and a piece of red coloured paper used in the cartridges Exhibit-8, brass portion of the cartridges Exhibit-11, Tikuli lying scattered near scene of the occurrence Exhibit-10 as such he took them in his custody and sealed in a packet and prepared Fard/memo Exhibit Ka-8-A. The Investigating Officer then searched for the accused persons but they were not available. 8. On the next date i.e. 19.2.1982, the Investigating Officer went to Sadar Mortuary and prepared inquest report Exhibit Ka-9. While he was examining the dead body for preparing inquest report, he found piece of a small stone entangled in the underwear of the deceased which appeared to have been skidded from explosion of the bomb as such he took it in his custody and sealed in a packet and prepared memo Exhibit Ka-10. Thereafter, Investigating Officer prepared Photonash/sketch map of the dead body Exhibit Ka-11, Challannash Exhibit Ka-12, then he sealed the dead body in a piece of cloth and sent to the mortuary through Constables Musafir Singh ( PW-5) and Ram Narain Mishra. 9. The dead body of the deceased Ratti Lal aged about 40 years reached mortuary on 19.2.1982 at about 12:00 noon. Autopsy was performed on the same day at 1:15 p.m. by Dr. C.K. Gupta PW-4, Medical Officer posted at District Hospital, Jaunpur. The doctor found that the deceased had died 3/4 day ago. Rigor mortis was present over upper as well as lower limbs. Decomposition and foul smell had started. Body was slightly swollen. Yellow smoke was present over the front part of Kurta similarly over the lower abdomen and right thigh. Eyes and mouth were closed. 10. As per post mortem report prepared by Dr. C.K. Gupta PW-4, Exhibit Ka-6, following ante mortem injuries were found on the body of the deceased Ratti Lal:- "1. Body was slightly swollen. Yellow smoke was present over the front part of Kurta similarly over the lower abdomen and right thigh. Eyes and mouth were closed. 10. As per post mortem report prepared by Dr. C.K. Gupta PW-4, Exhibit Ka-6, following ante mortem injuries were found on the body of the deceased Ratti Lal:- "1. Gun shot wound of the size of 3cm x 1.5 cm x cavity deep on the right side of chest 5 cm above the right nipple towards the axilla fold. Direction of the wound was inwards obliquely downwards and towards the left. This wound was surrounded with multiple pellets in an area of 15 cm x 10 cm over the right upper chest extending from right axilla fold to right nipple and including right nipple area also. No exit wound was visible. No blackening, tattooing and charring etc. was found. 2. Multiple gun shot wounds in an area of 21 cm x 15 cm over the left buttock including the left lower back each measuring 1/10 cm x 1/10 cm to 2/10 cm x 2/10 cm. No exit wound was visible. No blackening, tattooing and charring etc. was found over the wound. 3. Yellow and black smoke deposit etc., was found present over the lower abdomen and right thigh which could be removed by wet cloth. On cutting these parts, no internal injury was detected." 11. Internal examination showed that brain and its membranes had become pale, third, fourth and fifth ribs had broken and had scattered inside the body under injury no.1. Twelve pellets were taken out from this place. Right lung under this injury had lacerated. Four wads and eight pellets were found in the right lung. Right side of heart was found pierced from the pellets in an area of 3/10 cm x 3/10 cm. Right thorasis cavity of the chest was full of semi clotted blood. Nine pellets were found there. Stomach was empty. Small intestine had faecal matter and gases. Gall bladder was full and bladder was empty. 12. According to the opinion of the doctor PW-4, death was due to shock and haemorrhage as a result of ante mortem injuries. 13. Dr. Right thorasis cavity of the chest was full of semi clotted blood. Nine pellets were found there. Stomach was empty. Small intestine had faecal matter and gases. Gall bladder was full and bladder was empty. 12. According to the opinion of the doctor PW-4, death was due to shock and haemorrhage as a result of ante mortem injuries. 13. Dr. C.K. Gupta removed one Kurta ( Ex-3), one Lungi ( Ex-4) one underwear ( Ex-5), one Gamchha ( Ex-6) from the dead body and sealed them in a bundle and handed over the bundle to the constable who had brought the dead body and identified before him. He also removed 50 small pellets ( Ex-1) and four pieces of wads ( Ex-2) from the dead body and sealed them in an envelope and handed it over to the constable who had brought the dead body and identified before him. 14. The Investigating Officer PW-7 interrogated the accused persons after their surrender in the Court and after completing investigation on 12.3.1982 submitted charge sheet Exhibit Ka-15 against the accused persons under Section 302 IPC. 15. After submission of the charge sheet, the case was committed to the Court of Session by the Chief Judicial Magistrate, Jaunpur, vide order dated 3.5.1982. Charge under Section 302 /34 IPC was framed against the accused persons including the appellants on 26.7.1982 by the trial Court. The appellants pleaded not guilty and claimed to be tried on the said charge. 16. The prosecution in eyewitnesses account examined first informant Achchey Lal ( Bhanja of the deceased) PW-1, Vijai Kumar ( nephew of the deceased) PW-2 and Smt. Chandrawati Devi ( wife of the deceased) PW-3. 17. The prosecution has examined Dr. C.K. Gupta PW-4, who proved post mortem report of the deceased. Constable Musafir Singh PW-5 was examined to prove that he had taken the dead body after inquest along with other papers in a sealed condition for post mortem and dead body during his custody was not allowed to be touched by anyone and the seal remained intact throughout. The prosecution also examined S.I. Ram Dutt Mishra Investigating Officer as PW-7, who proved investigation and papers prepared by him during investigation. The Investigating Officer also proved the submission of charge sheet on completion of the investigation. 18. The prosecution also examined S.I. Ram Dutt Mishra Investigating Officer as PW-7, who proved investigation and papers prepared by him during investigation. The Investigating Officer also proved the submission of charge sheet on completion of the investigation. 18. Sri Krishna Kumar Singhal, Assistant Medico Legal Specialist, Lucknow, CW-1, Shambhu Ram Upadhyay CW-2 and Ajai Kumar ( nephew of the deceased) who is alleged to be injured in the same incident as CW-3 were examined at the instance of the trial Court. 19. It is relevant to mention here that S.I. Sri Ram Dutt Mishra PW-7 who was Investigating Officer of the case, being second officer of Police Station was Incharge thereof, reached the place of the occurrence of murder immediately after lodging of the first information report where Ajai Kumar CW-3 met Sri Mishra and told him that he had sustained injuries in the same incident. Sri Mishra directed CP 499 Sri Thakur Prasad to take the injured Ajai Kumar son of Indrajeet, resident of Jogiyapur, Police Station Kotwali, District Jaunpur, to Police Station. Sri Thakur Prasad took him under instructions of S.H.O. to Police Station on 18.2.1982 on the rickshaw and reached Police Station at 5:30 p.m. and told constable Sri Mahendra Rai PW-6 that S.H.O. had sent the injured for medical and then his injuries were noted in G.D. No.39 dated 18.2.1982 at 5:40 p.m. which has been proved by PW-6 as Exhibit Kha-1. After noting injuries of the injured Ajai Kumar who is CW-3 at Police Station at 5:40 p.m., the injured was sent through CP Nar Singh Narain Lal and employee of control room to Sadar Hosptial, Jaunpur. Injuries found on the person of this injured Ajai Kumar who was examined as CW-3 are noted in Exhibit Kha-1. As per this GD entry Exhibit Kha-1 since in the incident, one Ratti Lal had been murdered, the injured Ajai Kumar was sent for medical examination and the case of murder at Crime No.126 of 1982 was registered at Police Station. 20. Injuries of Ajai Kumar CW-3 were examined by Dr. Ravindra Nath Srivastava DW-1 on 18.2.1982 at 6:15 p.m. As per injury report of Ajai Kumar, Exhibit Kha-3, following injuries were found on his person:- "1. Contused swelling of the size of 14 cm x 7 cm present over the back of right forearm just above the right wrist joint. 20. Injuries of Ajai Kumar CW-3 were examined by Dr. Ravindra Nath Srivastava DW-1 on 18.2.1982 at 6:15 p.m. As per injury report of Ajai Kumar, Exhibit Kha-3, following injuries were found on his person:- "1. Contused swelling of the size of 14 cm x 7 cm present over the back of right forearm just above the right wrist joint. This injury was kept under observation and x-ray was advised. 2. Abraded contusion of the size of 5 cm x 4 cm present over back of left elbow joint. 3. Lacerated wound of the size of 1 cm x 0.5 cm x skin deep present over proximal end of left ring finger of second phalanx over dorsal aspect. 4. Abrasion of the size of 1 cm x.05 cm just below the right lateral malleolus. 5. Contusion of the size of 3.5 cm x 3.5 cm over the back of right side of abdomen at the level of L4, 7 cm right to the vertebral column. 6. Contusion of the size of 10 cm x 2 cm over the right side of back of chest just above the scapula." 21. Injury report of Ajai Kumar CW-3 was proved by Dr. Ravindra Nath Srivastava DW-1 in the trial Court saying that injuries may be caused by Lathi and could not possibly be caused by colliding with the truck. 22. After medical examination, the injured Ajai Kumar was admitted in the said hospital on 18.2.1982 at 6:15 p.m. After preparing his injury report, injury report was brought by the said constable to Police Station, entry of which was made in G.D. 45 dated 18.2.1982 at 18:50 hours which was proved by PW-6 as Exhibit Kha-2. In the said incident, the injured CW-3 Ajai Kumar was also injured. The incident of murder took place on 18.2.1982 at 4:30 p.m. and the first information report was lodged on the same day at 5:20 p.m. After lodging of the first information report at 5:20 p.m., entry of injuries of the injured Ajai Kumar was made in G.D. Exhihbit Kha-1 which was prepared justed after 20 minutes subsequent to lodging of the first information. S.H.O. was told by the injured Ajai Kumar that he sustained injuries in the same incident. S.H.O. was told by the injured Ajai Kumar that he sustained injuries in the same incident. S.H.O. sent him to Police Station where injuries were noted in G.D. Exhibit Kha-1 and after preparation of his injury report Exhibit Kha-3 in Sadar/District Hospital, Jaunpur, the injured Ajai Kumar was admitted in the District Hospital and the constable who accompanied him to the hospital, brought his injury report, entry thereof was made in Exhibit Kha-3. Thus Exhibit Kha-2 was prepared by HC Mahendra Rai PW-6, which was filed at Police Station on the day of murder itself namely 18.2.1982 at 6:50 p.m. 23. Now a look at the eyewitnesses account is very essential for disposal of this appeal. PW-1 Achchey Lal, first informant/complainant is Bhanja of the deceased. PW-2 Vijai Kumar is nephew of the deceased and real brother of the so-called injured Ajai Kumar CW-3. Smt. Chandrawati Devi PW-3 is wife of the deceased and she was not named as eyewitness in the first information report. These three eyewitnesses were examined by the prosecution before the trial Court in order to bring home the charge against the appellants. 24. According to the testimony of PW-1 Achchey Lal, he used to run a restaurant named as Pushpanjali in Wollendganj, Kutchery road which was situated towards the south of Lalji Chitra Mandir. Gumti of the witness was situated towards the west of the restaurant. At the time of the occurrence, when witness was standing near his Gumti, he saw his maternal uncle ( Mama) Ratti Lal ( deceased) coming from side of Gomti river proceeding from the North towards South. There were two gates to go inside Lalji Chitra Mandir. One gate was North facing and another gate was South facing. As soon as witness reached on the road in front of the southern gate of the building of Lalji Chitra Mandir, the accused persons Pyare, Makkhan and Ram Kishun each armed with country made pistol and fourth accused Nanhey having kept bombs in a small plastic bag appeared there. Thus, the accused persons are alleged to have rushed from the southern side and fired from country made pistol at the deceased Ratti Lal. The accused Nanhey took out bombs and hurled at the deceased. Consequently, the deceased fell down having sustained injuries of fire shots and bombs. Thus, the accused persons are alleged to have rushed from the southern side and fired from country made pistol at the deceased Ratti Lal. The accused Nanhey took out bombs and hurled at the deceased. Consequently, the deceased fell down having sustained injuries of fire shots and bombs. On hearing the aforesaid fire shots and bomb explosion created by hurling of bombs, witness Vijai Kumar PW-2, Smt. Chandrawati Devi PW-3 and one Ravindra Kumar 8 years son of the deceased who were following the deceased at the distance of 15-20 paces immediately rushed for help of the deceased Ratti Lal. 25. Two more witnesses Ram Lal and Rampat ( named as witnesses in the first information report but not examined in the trial) also rushed to rescue of the deceased. In the meantime, the accused persons including the appellants after firing shots and hurling bombs ran away from the place of the occurrence. The witness then went to near the deceased Ratti Lal ( maternal uncle), who was lying injured on the road and got him seated on rickshaw and took him to the District Hospital, Jaunpur where the doctor declared Ratti Lal dead. The witness then got the report of the incident Exhibit Ka-1 scribed by Shobh Nath Arya, went to Police Station Kotwali and handed over the written report and the first information report was lodged on the same day at 5:20 p.m. The distance of Police Station from the place of occurrence was about three kilometers. 26. The first informant/PW-1 Achchey Lal is said to be the eyewitness of this incident. He is Bhanja namely son of sister of the deceased Ratti Lal. This witness since his childhood was residing with his Mama Ratti Lal. The two accused persons Pyare and Nanhey sons of Baladin are real brothers. PW-1 had been subjected to lengthy cross examination. It emerges from cross examination of PW-1 that several cases of civil and criminal nature were pending between the deceased on the one hand and the accused persons on the other hand. The deceased had got the Temple constructed on the southern bank of river Gomti prior to the incident. The deceased used to visit the Temple almost daily in the evening and used to perform Pooja and he used to come back in the evening. The deceased had got the Temple constructed on the southern bank of river Gomti prior to the incident. The deceased used to visit the Temple almost daily in the evening and used to perform Pooja and he used to come back in the evening. The deceased six months prior to his murder, was detained in MISA case and he was released on 12.2.1982 and he was murdered on sixth day of his release namely on 18.2.1982. The deceased dedicated himself in the social service by constructing the said Temple and this Temple belonged to the Mandir Samaj. There was dispute regarding ownership and possession of the land of Plot No.34/59 between two parties and the accused Ram Kishun tried to erect Tin shade over that part of the land when he was stopped by the deceased. Prior to this incident, Ram Kishun filed civil suit against the deceased and his wife in the civil court claiming possession and ownership over the land of this Tin shade. The first information report under Section 307, 147, 148 IPC was lodged against this witness by one Basant Dubey and criminal case was pending at the time of the incident. Some cross case under Section 307/149 IPC was also registered at that time. Proceedings under Sections 107/116 Cr.P.C. were also resorted to between both sides prior to this incident. 27. It further transpires from cross examination of this PW-1 that on the day of the incident, some picture show was going on in the said Lalji Chitra Mandir and matinée show was started on that day at 3:30 p.m. and at the time of the incident, some persons were present in front of Cinema gate and also on the road. The witness claims to have seen the deceased Ratti Lal when Ratti Lal was coming from side of the river. The deceased had gone towards river one hour before and the deceased had also agricultural plot near bank of the river. PW-1 could not tell the work for which Ratti Lal had gone towards river whereas in the first information report lodged by PW-1, it was mentioned that Ratti Lal was coming back from side of the river after easing. The incident of the firing and hurling of bombs took around two to three minutes. PW-1 could not tell the work for which Ratti Lal had gone towards river whereas in the first information report lodged by PW-1, it was mentioned that Ratti Lal was coming back from side of the river after easing. The incident of the firing and hurling of bombs took around two to three minutes. When the accused Pyare fired at the deceased, the face of the accused Pyare was towards the north whereas at that time face of Ratti Lal was towards the south. The accused Pyare fired at the deceased from a distance of two steps only. The accused Makkhan fired at the deceased from back side. 28. On further cross examination on the points, PW-1 replied that at the time of firing, the deceased was surrounded by the accused persons from all directions. At the time of the incident, the face of the accused Makkhan was towards the west and when the deceased was fired upon by the accused Makkhan, face of the deceased was towards the south. This witness was suggested by the defence side that at the relevant time, Ratti Lal as well as Ajai Kumar were beaten by three unknown assailants inside the street leading to Abadi of Jogiyapur and after committing the murder of Ratti Lal and injuring Ajai Kumar, those unknown outsidersssailants ran away and they could not be recognized. This witness further deposed that the injured Ajai Kumar CW-3 on receiving information of the murder of his Chacha Ratti Lal, while coming, was hit by a truck and in the said accident, Ajai Kumar sustained injuries for which he was admitted in the hospital. This suggestion was put to this witness by the defence side that Ratti Lal was murdered and Ajai Kumar was injured in the same incident and both of them were lifted from Jogiyapur Abadi. All these suggestions have been denied by the PW-1 saying that after the incident, he did not go to see the injured Ajai Kumar CW-3 because he had gone to lodge the first information report of the murder at Police Station Kotwali. At the time of the incident, this witness and other witnesses were bare handed having no Lathi and Danda etc. This witness neither tried to save the deceased from the clutches of the accused persons nor came near the deceased to his rescue. At the time of the incident, this witness and other witnesses were bare handed having no Lathi and Danda etc. This witness neither tried to save the deceased from the clutches of the accused persons nor came near the deceased to his rescue. This witness was also suggested that the witnesses Ravindra Kumar and PW-3 Smt. Chandrawati Devi had not witnessed the incident and at that time, they were not present at the scene of the occurrence. This witness was falsely implicating the accused persons. All these suggestions have been vehemently denied by the witness. 29. It is also clear from cross examination of PW-1 that a piece of the land was situated near the west of Lalji Chitra Mandir and adjoining to that there was land of Nagar Palika, regarding that land, proceedings under Section 145 Cr.P.C. were initiated at the instance of the accused persons in which the order of attachment under Section 146 Cr.P.C. was also passed and at the time of the said incident, the case was also pending. The cross examination clearly tells that PW-1 had criminal antecedents and is habitual offender. Several criminal cases including Section 60 Excise Act, Goondas Act, Section 34 Police Act were pending. In the case of Goodas Act, this witness was externed for a period of six months, he was also accused in the murder of one relative of the aforesaid Basant Dubey. 30. Not only this, criminal antecedents of PW-1 were there at the time of the incident but his maternal uncle namely Vijai, Indrajeet, Shanker had also criminal antecedents having several criminal cases including DIR/MISA, under Section 307 IPC pending against them. PW-1 also denied the defence suggestion regarding false implication of the accused persons in the said murder. 31. It is further evident from testimony of PW-1 Achchey Lal that he claims to have stood at Gumti near his Pushpanjali restaurant whereas in his FIR, he had mentioned that he was at his shop at the relevant time of the incident. This witness further testified that Smt. Chandrawati Devi wife of the deceased and son of the deceased had also reached the place of the incident and they had witnessed the incident but these important facts do not find place in the first information report lodged by this witness. This witness further testified that Smt. Chandrawati Devi wife of the deceased and son of the deceased had also reached the place of the incident and they had witnessed the incident but these important facts do not find place in the first information report lodged by this witness. One more important fact that the deceased was coming from the west to Lalji Chitra Mandir, is also missing from the first information report lodged by the witness. Contrary to these facts, the witness has testified and added new facts in his evidence in the trial court. The witness himself claims to have dictated in the first information report that one accused Pyare fired shots from Tamancha at the deceased Ratti Lal. It was not dictated in the first information report that the accused Pyare fired shot from a very close range. Thus there was no mention of the fact in the first information report that the deceased was fired upon by Pyare in chest from a close range. The word "making fire shot from a close range" was added by this witness in his evidence in the trial court. According to the evidence of this PW-1, he had shown the place of the occurrence to the Investigating Officer including the place where the deceased Ratti Lal fell down. This witness had clearly deposed that he did not show the place to the Investigating Officer from where eyewitnesses Vijai Kumar, Smt. Chandrawati Devi, Prem Lal and Rampat had witnessed the incident. This witness had not shown the place from where the accused persons fired from their Kattas and also the place of hurling of bombs by one of the accused persons to the Investigating Officer. This witness simply told the Investigating Officer that the incident took place at such and such place. The witness was suggested by the defence side that the deceased Ratti Lal fell down in the Verandah of the residential house of Shambhu Ram Upadhyay having sustained injury and died in the Verandah and from inside the same Verandah, the deceased was taken by this PW-1 to the hospital. All these suggestions were denied by PW-1. 32. According to the testimony of PW-2, Vijai Kumar, he was standing in front of tea stall of Amarjeet Yadav at 4:30 p.m. and saw that when Ratti Lal reached the gate of Lalji Chitra Mandir, he was surrounded by four accused persons. All these suggestions were denied by PW-1. 32. According to the testimony of PW-2, Vijai Kumar, he was standing in front of tea stall of Amarjeet Yadav at 4:30 p.m. and saw that when Ratti Lal reached the gate of Lalji Chitra Mandir, he was surrounded by four accused persons. Ram Kishun and Makkhan fired at Ratti Lal from the back side of Ratti Lal while third accused Pyare fired from front side of Ratti Lal. It was fourth accused Nanhey who hurled bombs at Ratti Lal. This incident of murder is alleged to have been witnessed by this witness Vijay Kumar PW-2 who has stated that when he reached the place of the murder namely pavement of bricks ( Kharanja) just in front of Lalji Chitra Mandir, the deceased had already died. 33. According to the testimony of PW-2, the deceased as a result of sustaining injury fell down on the pavement of bricks in front of the gate of Lalji Chitra Mandir and immediately died at the same place. At the same time, Achchey Lal PW-1, Rampat and Prem had also reached there. Achchey Lal had taken Ratti Lal to the hospital. It emerges from the cross examination of this PW-2 that there was enclosure in front of Lalji Chitra Mandir having two Gumtis. Baladin who is father of the accused Pyare and Nanhey, had already filed a case under Section 145 Cr.P.C., against the deceased Ratti Lal regarding the ownership of those Gumtis erected on the land of Gata No.23/55. 34. PW-2 was cross examined about topography around the place of the occurrence. Pushpanjali restaurant was situated about five steps away from road coming from Kutchery to Pushpanjali restaurant and one of the two gates of Lalji Chitra Mandir was one furlong away from that road. The tea stall where this witness was standing was 10 feet away from Pushpanjali restaurant. This witness was standing there for 10 to 15 minutes prior to the incident without any work. The deceased was real Chacha of the witness. The bombs were hurled at Ratti lal and Katta fires were also made at him. The deceased did not sustain any bomb injury. This incident took place when Ratti Lal was two steps away from Gate No.2 of the said Lalji Chitra Mandir. The deceased was real Chacha of the witness. The bombs were hurled at Ratti lal and Katta fires were also made at him. The deceased did not sustain any bomb injury. This incident took place when Ratti Lal was two steps away from Gate No.2 of the said Lalji Chitra Mandir. The deceased died at the place where he was surrounded and fired upon by the accused persons followed by hurling of bombs. The witness clearly denied that his Chacha Ratti Lal had not succumbed to injury in the Verandah of Shabhu Ram Upadhyay and also denied that his brother Ajai Kumar sustained injury in the same incident. This witness was interrogated by the Investigating Officer on the day of the incident itself at 8:00 p.m. when he told the Investigating Officer about the incident. The witness did not show the place where Ratti Lal fell down to the Investigating Officer. The witness also did not show the place where bombs were hurled at Ratti Lal to the Investigating Officer. This witness clearly denies to have gone with the Investigating Officer on the scene of occurrence. He clearly denies that his Chacha Ratti Lal did not run towards the house of Shambhu Ram Upadhyay situated at a distance in the street and did not succumb to injury in the Verandah of Shambhu Ram Upadhyay. The house of this witness was five furlong away from the place of the occurrence and the house of the deceased was about 20-25 steps away from the house of the witness in the south. He went to see his injured brother Ajai Kumar CW-3 in the hospital. The witness has candidly admitted that he was accused in all the cases which were pending against Ratti Lal. Thus, this witness was co-accused with the deceased in several cases which were pending prior to the incident of the murder. The deceased resided at the house of Achchey Lal. 35. The injured Ajai Kumar CW-3 was accused in some murder case prior to the incident and Ajai Kumar was acquitted in that murder case. In the case of murder of Saudagar, Ajai Kumar, and Shanker, Chacha of the witness were also accused. Not only this, the witness was accused in the case of murder of Dhoodh Nath Pathak and in that murder case, the witness was also acquitted. In the case of murder of Saudagar, Ajai Kumar, and Shanker, Chacha of the witness were also accused. Not only this, the witness was accused in the case of murder of Dhoodh Nath Pathak and in that murder case, the witness was also acquitted. This witness had remained accused in many cases of murder, theft and MISA besides other criminal cases. 36. This PW-2 in the end of his cross examination has further deposed that at the time when he reached the place of the occurrence, Ratti Lal was not alive and had already died. The attack on the deceased by bombs and fires by Katta was made from distance of 4-6 steps. When the witness reached the place of occurrence, he found that blood was oozing out from injuries of the deceased and clothes of the deceased were soaked with the blood. 37. PW-3 Chandrawati Devi who is widow of the deceased Ratti Lal also gave evidence in the murder of her husband stating that she along with her minor son Ravindra Kumar was following the deceased Ratti Lal at a distance of 10-15 paces. She saw firing at her husband Ratti Lal, when he reached in front of the southern gate of Lalji Chitra Mandir, by the accused Makkhan, Pyare and Ram Kishun and hurling of bombs by Nanhey. She has also stated that after receiving injuries from the fire shots and also hurling of bombs, her husband fell down dead. The first informant Achchey Lal then got Ratti Lal seated on rickshaw and proceeded towards District Hospital. This witness seeing her husband Ratti Lal in critical condition fainted and became unconscious. When ladies from her house came and sprinkled water on her, she regained consciousness by which time, the accused persons had run away. 38. The facts disclosed from cross examination of Chandrawati Devi PW-3 are that after sustaining injury in the said incident, her husband Ratti Lal fell down on the pavement of bricks/Kharanja. She was coming back from the said river to her house following her husband. Her husband fell down towards the North to Gate No.1 of Lalji Chitra Mandir namely four or five feet towards North of the gate. The accused persons were two steps away from her husband Ratti Lal at the relevant time. The accused persons took out several bombs from a bag and hurled at her husband repeatedly. Her husband fell down towards the North to Gate No.1 of Lalji Chitra Mandir namely four or five feet towards North of the gate. The accused persons were two steps away from her husband Ratti Lal at the relevant time. The accused persons took out several bombs from a bag and hurled at her husband repeatedly. There were 8-10 explosion of bombs at that time. She was witnessing the incident of murder of her husband from some distance and due to the distance, the accused persons had not assaulted her. The witness did not show the place of the occurrence to the Investigating Officer including the place where her husband after receiving injury for the first time fell down on the ground. She has clearly denied the prosecution story discovered during investigation at the pointing out of the eyewitnesses that Ratti Lal after sustaining injuries at the hands of the accused persons in front of the southern gate of Lalji Chitra Mandir, ran in the street leading towards the house of Shambhu Ram Upadhyay and succeeded in reaching Verandah of Shambhu Ram Upadhyay. He fell down in the Verandah and succumbed to the injuries in the said Verandah. 39. PW-3 was interrogated at her house by the Investigating Officer in the evening of the incident. The witness had told the Investigating Officer that her husband Ratti Lal fell down on the pavement of bricks ( Kharanja). Vijai Kumar PW-2 did not go with Ratti Ral to the hospital. Vijai Kumar met the witness only next day. The first informant Achchey Lal met this witness in the evening of the next day when Achchey Lal after consigning the dead body of her husband to flames, came to her house. Last page of the statement of this PW-3 shows that when the accused persons attacked on her husband, there was no one present in the vicinity, Kattas and bombs were simultaneously used. The witness could not specifically tell the number of fires made by Kattas and number of bombs hurled, just after hit of the fire shots, her husband fell down from where her Bhanja Achchey Lal took her husband to the hospital on rickshaw. 40. The witness could not specifically tell the number of fires made by Kattas and number of bombs hurled, just after hit of the fire shots, her husband fell down from where her Bhanja Achchey Lal took her husband to the hospital on rickshaw. 40. The main contention of Sri Satish Trivedi, learned Senior Counsel appearing for the appellants is that one Ajai Kumar CW-3 ( real nephew of the deceased) who had also sustained injuries in the same incident was not examined by the prosecution in order to conceal the truth and also to suppress the genesis of the incident. Achchey Lal PW-1 who lodged the first information report had attempted to explain injuries of Ajai Kumar by stating that Ajai Kumar sustained injuries in the accident caused by colliding with moving truck. In order to discover truth, when the trial court summoned Ajai Kumar and recorded his statement as CW-3, he gave a detailed different and contrary version. 41. According to the evidence of Ajai Kumar CW-3 on the day of the murder of Ratti Lal, this witness was hit by some truck. He became unconscious having sustained injuries. At that time, the witness was going on foot to his house from roadways bus stand. After sustaining injuries, he became conscious in the hospital. This witness had deposed that he was not beaten by the persons who murdered Ratti Lal. When evidence of this witness was recorded in the trial court, he was detained in the case under Section 392 IPC regarding robbery of money from some Munim of Kanpur. According to his evidence, just before meeting with accident, the witness was going to roadways bus stand for searching his servant at about 4:45 p.m. According to this witness, he met with accident at about 5:00 p.m. He came to consciousness about 7:00 p.m. in the hospital but no report or first information report of the said incident was lodged by this CW-3 or by any member of his family. 42. 42. Throwing light on the testimony of Ajai Kumar CW-3, Sri Trivedi, learned Senior Counsel has meekly submitted that if testimony of CW-3 for a moment is believed that he sustained injuries at about 4:45 p.m. in the said accident, no first information report of the said accident was lodged by him or any member of his family whereas CW-3 was got admitted in the hospital just after the said accident. The record goes to show that this Ajai Kumar CW-3 was taken by Constable under direction of S.H.O. to Police Station Kotwali, entry was made at Serial No.39 in G.D. on 18.2.1982 at 5:40 p.m., the day of the said murder vide Exhibit Kha-1. Thus, Ajai Kumar CW-3 was at Police Station on 5:40 p.m. on the day of the murder itself just after 20 minutes of murder of Ratti Lal and from Police Station, he was taken to the hospital by some constable. 43. As per evidence of Sri Krishna Kumar Singhal, Assistant Medico Legal Specialist, Lucknow, CW-1, injuries found on the person of Ajai Kumar CW-3 were likely to be caused in Marpit and could remotely be caused in the accident. Dr. Ravindra Nath Srivastava DW-1 who examined injuries of Ajai Kumar CW-3, proved the same as Exhibit Kha-3 and stated that injuries might be caused by Lathi and they could not possibly be caused in an accident. 44. As per injury report of Ajai Kumar CW-3 Exhibit Kha-1, he was medically examined on 18.2.1982 at 6:15 p.m. and he was brought to the hospital by Constable 52-CP Nar Singh Narain Lal. This relevant fact totally falsifies the testimony of Ajai Kumar CW-3 and Achchey Lal PW-1. It is evident from the record that the prosecution has concealed true facts or true story and further suppressed the origin and genesis of the alleged incident of murder. This submission of Sri Trivedi has force and is substantiated by the evidence on record. 45. This relevant fact totally falsifies the testimony of Ajai Kumar CW-3 and Achchey Lal PW-1. It is evident from the record that the prosecution has concealed true facts or true story and further suppressed the origin and genesis of the alleged incident of murder. This submission of Sri Trivedi has force and is substantiated by the evidence on record. 45. The next contention of the learned counsel for the appellants is that all the eyewitnesses namely Achchey Lal PW-1, Vijai Kumar PW-2 and Smt. Chandrawati Devi PW-3 have testified that the deceased Ratti Lal after being hit with fire shots and bombs in front of Lalji Chitra Mandir had fallen then and there and could not move from there and on the same place namely front portion of Lalji Chitra Mandir, he succumbed to his injuries. Thus eyewitnesses have belied this part of the prosecution story which came to light during investigation by PW-7 and also from site plan prepared by PW-7 Investigating Officer at the instance of the eyewitnesses that the deceased Ratti Lal in spite of having sustained firearm injuries ran from place of the incident namely front portion of Lalji Chitra Mandir towards verandah of the house of Shambhu Ram Upadhayay which was 17-18 yards away to save his life and he finally fell down in the verandah. 46. Sri Trivedi has further contented that since testimony of PW-3 Smt. Chandrawati Devi wife of the deceased was discarded by the trial court, her testimony cannot be considered by this Court in support of the prosecution case. To check this submission, we have gone through the evidence of Smt. Chandrawati Devi cautiously and carefully and found that the learned trial court in the impugned judgment had considered the relevant facts which came in her evidence and rightly discarded her evidence. A close scrutiny of her evidence makes her presence on the place of the occurrence at the relevant time doubtful. She had improved her evidence on material facts in a zeal to ensure conviction of the appellants. After considering the same, we also discard her evidence. 47. Sri Trivedi has also challenged the presence of Achchey Lal PW-1 and Vijai Kumar PW-2 at the relevant time on the place of the said occurrence. We have gone through the statements of these two witnesses with the help of Sri Trivedi and learned AGA. 48. After considering the same, we also discard her evidence. 47. Sri Trivedi has also challenged the presence of Achchey Lal PW-1 and Vijai Kumar PW-2 at the relevant time on the place of the said occurrence. We have gone through the statements of these two witnesses with the help of Sri Trivedi and learned AGA. 48. We have discussed the evidence of the eyewitnesses in the upper part of this judgment. The presence of both these eyewitnesses on the date, time and place of the occurrence is doubtful and suspicious and their evidence is unworthy of credit and is not at all reliable. Both these witnesses are related and very much interested witness and their testimony is not above board and is not capable of acceptance. Both these witnesses had criminal antecedents having many criminal cases on their head and they were also accused in the murder case along with the deceased. According to their evidence, the deceased was fired upon by the appellants from Kattas and also bombs hurled by one of the appellants in front of the southern gate of Lalji Chitra Mandir and he fell down at the same place and instantly died. The site plan was prepared by the Investigating Officer who just after lodging of the first information report proceeded to the place of the occurrence immediately and promptly recorded statements of the witnesses under Section 161 Cr.P.C. and inspected the place of the occurrence at their pointing out and found that the deceased after being hit by fire shot in front of the southern gate of Lalji Chitra Mandir, in order to save his life succeeded in running from the place of the occurrence 17-18 yards away to verandah of the house of Shambhu Ram Upadhyay where he died. 49. As per evidence of eyewitnesses, one appellant Pyare fired shot from Katta in the chest of the deceased Ratti Lal from a very close range. Contrary to it, no blackening, tattooing or charring was found around the gun shot wound which rules out the possibility that fire shot was made in the chest of the deceased from a very close range. 50. No blood was found on the place of the incident though clothes of the deceased were soaked with blood, hence the incident of the murder in front of the southern gate of Lalji Chitra Mandir is suspicious. 50. No blood was found on the place of the incident though clothes of the deceased were soaked with blood, hence the incident of the murder in front of the southern gate of Lalji Chitra Mandir is suspicious. The origin, genesis and manner of the occurrence is highly doubtful. 51. Inquest report Exhibit Ka-9 shows the yellow coloured hand bomb spots near neck and back besides firearm injuries whereas in the post mortem report of the deceased, it is mentioned that other injuries shown by S.H.O. in photonash were not found on the dead body. Allegation of hurling of bombs at the deceased continued till completion of the inquest of the deceased. When in the post mortem report, no bomb injury was found on the dead body, the prosecution developed the story by saying that bombs were only hurled and there was explosion of bombs. 52. After careful and close scrutiny of the evidence of eyewitnesses, their presence on the spot at the time and place of murder is not established. It is not safe to rely on their testimony as the same suffers from major contradictions, discrepancies and infirmities. Their testimony is quite unnatural and unreliable in the facts and circumstances of the case and nature of the evidence adduced in this case. 53. Sri Trivedi, learned counsel for the appellants has further contended that the place of occurrence in this case of murder is not established. The independent eyewitnesses cited in the first information report namely Ram Pat and Prem Pal were not examined by the prosecution and withheld without any sufficient and reasonable explanation. 54. The next contention of Sri Trivedi is that there are major contradictions between ocular version and medical testimony, the same finds support from the evidence on record as the prosecution has not come with clean hands and the first information report is embellished. 55. According to Sri Trivedi, one accused Ram Kishun to whom the role of firing by country made Katta along with appellants at the deceased Ratti Lal was assigned, was acquitted by the trial court vide impugned judgment and order disbelieving the testimony of the eyewitnesses and the judgment of the acquittal of Ram Kishun has not been challenged in this Court. On this ground, other appellants having similar role of firing from Kattas are also entitled to be acquitted. On this ground, other appellants having similar role of firing from Kattas are also entitled to be acquitted. The appellant Nanhey who had been assigned the role of hurling of bombs at the deceased at the time of the incident is also entitled to acquittal because no bomb injury was found on the dead body of the deceased Ratti Lal and hurling of bombs by Nanhey is not proved by the evidence of eyewitnesses. 56. The evidence of the aforesaid eyewitnesses is of doubtful nature as to participation of the appellants. According to the prosecution in all four shots were fired at the deceased including one in the chest from a very close range. No blackening, tattooing and charring was found in the chest. Only two firearm injuries were found on the dead body of the deceased Rattia Lal. There is strong possibility that the injured Ajai Kumar also sustained injuries in the same incident of murder of Ratti Lal and in order to conceal true theory, Ajai Kumar was not examined by the prosecution. If the incident really took place on the date, time and place of the incident and in the manner alleged by the prosecution, Ajai Kumar had not supported the prosecution theory of murder. All these facts go to show the material contradictions between ocular testimony and medical evidence. The unnatural conduct of the eyewitnesses in regard to there being mute spectators at the said time of murder, not making any effort to save the deceased or to come to his rescue though there was big crowd at the place of the incident due to existence of the some picture hall and other locality and material contradictions in the evidence of eyewitnesses makes the prosecution case totally unnatural and improbable. 57. The first information report of the incident is also doubtful and appears to be not genuine. There was old enmity because of the previous litigations between both the parties and animosity is a double-edged sword. If it could be a ground for false implication then it could also be a ground for commission of the offence. In the case in hand, the basic foundation of the prosecution case has crumbled down. 58. Hon'ble Apex Court in the case of State of Punjab Vs. Sucha Singh and others ( 2003) 3 SCC page 153 has observed that animosity is a double edged sword. In the case in hand, the basic foundation of the prosecution case has crumbled down. 58. Hon'ble Apex Court in the case of State of Punjab Vs. Sucha Singh and others ( 2003) 3 SCC page 153 has observed that animosity is a double edged sword. In the reported case, the place of occurrence was doubtful and there was discrepancy between ocular testimony and medical evidence with regard to the injuries sustained by the deceased and there was no attempt by the eyewitnesses to intervene or to save the deceased. The conduct of the eyewitnesses was found to be quite unnatural. 59. Hon'ble Apex Court in the case of State of Punjab ( supra) considering the facts held that suspicion however strong may be, cannot take the place of proof of guilt and if foundation of the prosecution case crumbles down, motive will become inconsequential. Hon'ble Apex Court favoured the acquittal. 60. Hon'ble Apex Court in the case of Paramjeet Singh @ Pamma Vs. State of Uttarakhand ( 2010) 10 SCC 439 has laid down the standard of proof required for establishing the guilt of the accused and held as quoted hereinbelow:- "A criminal trial is not a fairy tale wherein one is free to give flight to one's imagination and fantasy. Crime is an event in real life and is the product of an interplay between different human emotions. In arriving at a conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case, in the final analysis, would have to depend upon its own facts. The court must bear in mind that human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions. Though an offence may be gruesome and revolt the human conscience, an accused can be convicted only on legal evidence and not on surmises and conjecture. The law does not permit the court to punish the accused on the basis of a moral conviction or suspicion alone. The burden of proof in a criminal trial never shifts and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence. The law does not permit the court to punish the accused on the basis of a moral conviction or suspicion alone. The burden of proof in a criminal trial never shifts and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence. In fact, it is a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof required, since a higher degree of assurance is required to convict the accused. The fact that the offence was committed in a very cruel and revolting manner may in itself be a reason for scrutinising the evidence more closely, lest the shocking nature of the crime induces an instinctive reaction against dispassionate judicial scrutiny of the facts and law." 61. In the case in hand, we have analyzed the evidence led by the prosecution and find that the guilt of the appellants charged with the commission of offence is not proved by the prosecution evidence. It appears that the appellants have been falsely implicated on account of enmity and litigation in this murder case and there is no legal evidence on record to connect the appellants with the murder of Ratti Lal. It is always burden on the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence which the prosecution has failed to discharge. 62. For the reasons discussed above, we set aside the judgment and order dated 10.6.1983 passed by the Ist Additional Sessions Judge, Jaunpur. The appeal is allowed. The appellants Makkhan, Pyare and Nanhey are acquitted of offence punishable under Section 302 /34 IPC for which they were charged. The appellants are on bail. Their bail bonds and sureties are discharged.