JUDGMENT Hon’ble Kalimullah Khan, J.—This Government Appeal No. 3146 of 1983 under Section 378 Cr.P.C. has been preferred by State of U.P.-appellant challenging the impugned judgment and order of acquittal dated 3.9.1983 delivered by Sri N.P. Verma, VII Additional Sessions Judge, Etah in S.T. No. 145 of 1983 (State v. Sudhir Kumar and five others) under Section 302/149 I.P.C., Police Station Sidhpura, District Etah whereby he has recorded a finding of acquittal against the respondents. 2. The aforesaid judgment and order of acquittal has been challenged on the ground that it is against the law and facts of the case, hence deserves to be set aside. During the pendency of this Government Appeal accused respondent Nos. 4 and 5 Gopal and Nahar Singh have died and, therefore, vide order dated 2.12.2010 appeal filed against them stood abated. This judgment now pertains with accused respondent Nos. 1, 2, 3, and 6 Sudhir Kumar, Pappu alias Brij Bhushan, Ram Larete and Gajju. 3. The case of the prosecution is that on 24.1.1983 at about 5:00 p.m. near the Gher of one Jitendra in village Memra, Police Station Sidhpura, District Etah, accused respondents formed an unlawful assembly, the common object of which was to commit murder of Hari Om Pandey and in prosecution of their common object of such assembly, they committed the offence of rioting and while committing the rioting, they were armed with deadly weapons (gun, rifles and country made pistols) and they fired with their weapons at Hari Om Pandey with intention to commit his murder. He received fire arm injuries at his person and died at spot. 4. A written report was lodged at Police Station Sidhpura on 24.1.1983 at 7:30 p.m. by Smt. Rajeshwari Pandey, wife of Hari Om Pandey to the effect that on 24.1.1983 at about 5:00 p.m., Smt. Rajeshwari, her mother-in-law, Sarswati devi and sister-in-law (Nanad) Shakuntla Devi were sitting on the roof and enjoing the sun-shine. Her son Arvidnd Kumar was standing beneath the ‘Neem’ tree adjoining to her house. Her husband was coming from the fields and the moment, he reached in front the gate of his house, accused Sudhir Kumar, Pappu, Gopal, Ram Larete, Nahar Singh and Gajju, armed with ‘Kattas’ guns and rifles, sourrounded her husband Hari Om Pandey in the Galiyara in front the house near the ‘Neem’ tree. Her husband was coming from the fields and the moment, he reached in front the gate of his house, accused Sudhir Kumar, Pappu, Gopal, Ram Larete, Nahar Singh and Gajju, armed with ‘Kattas’ guns and rifles, sourrounded her husband Hari Om Pandey in the Galiyara in front the house near the ‘Neem’ tree. Sudhir Kumar and Pappu challendged him and said “ Aaj Kahan Bachkay Jayega, Sab Badley Aaj Chuka Langey”. At this her husband turned back and ran towards the ‘Gher’ of Jitendra. The accused chased and killed him with fire arms in the ‘Gher’ of Jitendra. She, her mother-in-law etc. raised alarm and witnesses Rampoot and Dalli saw the occurrence. On this report, case crime No. 16 of 1983 under Sections 147, 148, 149, 302 of the I.P.C. was registered against the accused. Sri Virendra Pratap Singh, S.I. Investigated the case. He reached the spot, prepared Panchayatnama etc. and sent the sealed dead body of deceased for post-mortem. After completing the investigation, he submitted a chargesheet against the accused. 5. The learned trial Court framed charge against all the accused under Sections 148, 302/149 I.P.C. The accused pleaded not guilty and claimed their trial. In order to prove its case prosecution examined six witnesses. Smt. Rajeshwari wife of Hari Om Pandey deceased is the first informant. She examined herself as P.W.1 and has proved report Exhibit Ka-1 and deposed that all the six aforesaid accused committed the murder of her husband by causing fire arm injuries on the date, time and place of the incident alleged by the proseuction. Shakuntla Devi sister of deceased Hari Om Pandey P.W.2 is a witness of fact and has proved the same corroborating the evidence of first informant (P.W.1). The last witness examined on facts is Arvind Pandey P.W.3 aged about 12 years who is son of deceased Hari Om Pandey. His deposition in the Court corroborates the testimony of P.W.1 and 2. 6. Dr. Rajendra Kumar P.W.4 is the doctor who has conducted the post-mortem examination of the dead body of deceased Hari Om Pandey on 25.1.1983. He prepared the post-mortem examination report Exhibit Ka-2. The witness appeared in the witness box and proved the post-mortem report. His deposition in the Court corroborates the testimony of P.W.1 and 2. 6. Dr. Rajendra Kumar P.W.4 is the doctor who has conducted the post-mortem examination of the dead body of deceased Hari Om Pandey on 25.1.1983. He prepared the post-mortem examination report Exhibit Ka-2. The witness appeared in the witness box and proved the post-mortem report. According to him, he found following ante-mortem injuries on the dead body of deceased Hari Om Pandey: (i) One gun shot wound of entry size 2 c.m. x 2 c.m. over the right cheek 6 c.m. below the middle of the lower eye lid margins of the wound lacerated and inverted and surrounded by an area of blackening 4 c.m. all around the wound. This wound is through and through communicating with the wound of exit present over the left side of the face extending from upper eye lid to the left side of the chin margins lacerated and everted the underlying right mandible maxills left maxills zygomadie bone has multiple fracture both jaw having multiple fracture through upper pallate and left orbital can grossly lacerated left eye wall absent as a whole. (ii) One gun shot wound of entry size 2 c.m. x 2 c.m. through over the right side face 3 c.m. below gliteal to injury No. 1 (wound of entry) the margins are lacerated inverted and surrounded by an area of blackening 4 c.m. all around the wound of entry on direction the underlying both (lower jaw maxilla, maxillary and upper pallate) and are combined fossel and frontal bone of left temporal and parital bone found fracture in pieces; the brain matter and margins and soft tissue with gitrauk found. Grossly lacerated. This wound is communicated with the wound of exit size 5 c.m. x 4 cm. over the left side of the skull just behind the pinna of the left ear, the lower level of the pinna having lacerated wounds. Direction of the wound from right to left back wound and upward. Grossly lacerated. This wound is communicated with the wound of exit size 5 c.m. x 4 cm. over the left side of the skull just behind the pinna of the left ear, the lower level of the pinna having lacerated wounds. Direction of the wound from right to left back wound and upward. (iii) One gunshot wound of entry size 2 c.m. x 2 c.m. through and through over the xiphisternal region 9 c.m. away from the umblicus above and at 12.30 O’ Clock posterior margins of wound lacerated and inverted and surrounded by an area of blackening 1.5 c.m. all around the wound of entry on dissection peritomi diaphram pericardim heart and left lung plura found lacerated fracture of the left 4 and 5th ribs below the wound of exit from fractured the wound of exit size 3 c.m. x 3 c.m. over the back of the chest just being the injury angle of the left scapula which edges lacerated and everted. (iv) One gunshot wound of entry size 2 c.m. x 2 c.m. x cavity deep over the middle of the gliteal region the margins of the wound lacerated and invested and surrounded by an area of blackening 2 c.m. all around on dissection the underlying gliteal muscles found grossly lacerated fracture of the right hip bone on further dissection u. bladder. Loops of intestine and mesculine rectum and dissecting could found grossly lacerated (one) pintblood present with abdominal cavity one cork pieces and two Gatta piece and 54 small pallets recovered from the abdominal cavity. Direction right to left. (v) Abrasions size 2 c.m. x 2 c.m. within front of the right knee joint. 7. In his opinion, the cause of death was shock and haemorrhage resulting from these injuries and excessive bleeding. These injuries were sufficient to cause death in the ordinary course. These injuries could possibly be inflicted on 24.1.1983 at 5:00 p.m. He stated the details of other internal and external examination of the dead body mentioned in his post-mortem report Exhibit Ka-2. The deceased was wearing Jarsi Exhibit Ka-1, Shirt, Baniyan, Paijama and underwear. They were removed from the dead body and sealed in a bundle. Besides, 54 pellets and the three pieces of Gattas which were sealed and handed over to the constable who had brought the dead body for post-mortem. The deceased was wearing Jarsi Exhibit Ka-1, Shirt, Baniyan, Paijama and underwear. They were removed from the dead body and sealed in a bundle. Besides, 54 pellets and the three pieces of Gattas which were sealed and handed over to the constable who had brought the dead body for post-mortem. In his cross-examination, he has stated that these injuries could possibly be inflicted on 24.1.1983 at 8:00 p.m. also. He stated that chot No. 1, 4 Feet Kay Ander Ki Doori Say Pahunchaee Gai Thi. Chot No. 2 Ka Direction Aisa Hai Jissay Yahe Jahir Hota Hai Ki Marney wala Ya To Mirtak Say Nichaee Taraf Tha Ya Jhuk Kar Nichey Hokar Fire Kiya Aur Yahi Dasha Chot No. 3 Ki Bhi Hai.” Head Constable 16 Mahavir Singh P.W. 5 who has proved the Chik Report Exhibit Ka-3 and G.D. Entry regarding the registration of case as Exhibit Ka-4. Virendra Pratap Singh, S.I., P.W. 6 is I.O. of the case. He has proved the investigation. Accused respondents were examined under Section 313 Cr.P.C. They denied the prosecution evidence and claimed their false implication in this case on the ground of admitted enmity. 8. Having heard learned counsel for the parties, learned trial Court came to the conclusion that prosecution failed to prove the charge against the accused, hence vide judgment and order dated 3.9.1983 he recorded a finding of acquittal and acquitted all the six accused persons under Section 302/149 I.P.C. Feeling aggrieved this Government Appeal has been preferred by the State of U.P. Heard Sri A.K. Tripathi, learned A.G.A. for the appellant and learned counsel for the respondents. Perused the record. Learned trial Court has recorded a finding of acquittal on following grounds : (i) That the prosecution witnesses examined are highly interested in prosecution and inimical to accused; (ii) That the material contradiction inter-se the evidence of prosecution witnesses have occurred; (iii) That no independent witnesses has been examined; (iv) That the F.I.R. Exhibit Ka-1 appears to have been written after due consultation with the police officer who had already reached at spot before lodging the F.I.R.; (v) That the F.I.R. is ante-time and ante-dated; (vi) That ocular testimony is inconsistent with the medical evidence; (vii) That lastly, the prosecution has failed to prove its case beyond all reasonable doubt, therefore, accused persons deserve the order of acquittal. 9. 9. Learned A.G.A., Sri A.K. Tripathi has submitted that the motive of committing murder in question is strong. Prosecution witnesses P.Ws. 1 to 3 have fully proved the prosecution case. Their deposition cannot be discarded merely on the ground that they are near relation of the deceased. Two independent witnesses named in the F.I.R. had been won over by the accused, therefore, disclosing the aforesaid fact prosecution applied for their discharge and did not examine them. The evidence of interested and related witnesses cannot be brushed aside simply because they are interested and related. What is required under the law is that their evidence should go through strict judicial scrutiny. According to him, learned trial Court has not scrutinized their evidence in correct prospective. As regards the discrepancy occurred in the deposition of the witnesses interse, he submits that it is but natural to occur especially when the witnesses are not tutored. On the point of inconsistency in between the medical evidence and ocular testimony, he repelled the submission made by learned counsel for the respondents by arguing that it is not always necessary that all the fire arms shot hit the target, therefore, according to him if rifle injury is not on the person of deceased it makes no difference especially when other fire arm injuries are there at the body of the deceased. The possibility cannot be ruled out that rifle shot might not have hit the deceased. Minor discrepancies occurred during the deposition of the witnesses of fact interse on the points as to from where they witnessed the incident, by which way the accused arrived and chased the deceased at spot are not sufficient to brush aside their testimonies. They claim themselves to be the witnesses of an eye account of the incident. Lastly, he submitted that the prosecution has fully proved its case beyond all reasonable doubt by examining three P.Ws. of fact who claim themselves to be witness of an eye account of the incident. 10. Per contra, learned counsel for the accused respondents has submitted that motive is a double edged weapon. Undisputedly, the chain of murders have taken place in between the parties at it has come in the evidence on record. of fact who claim themselves to be witness of an eye account of the incident. 10. Per contra, learned counsel for the accused respondents has submitted that motive is a double edged weapon. Undisputedly, the chain of murders have taken place in between the parties at it has come in the evidence on record. Hari Om Pandey (hereinafter called the deceased) has admittedly been convicted in the murder of the father of accused respondent Sudhir Kumar and he has been sentenced to undergo life imprisonment, therefore, there was no motive available to respondents to commit his murder rather the chances of their false implication in this case by the family inmates of present deceased Hari Om Pandey cannot be ruled out. The discrepancies occurred in the testimonies of the prosecution witnesses No. 1 to 3 interse are not of minor nature rather they are material in nature. The time and place of the incident is not proved. The F.I.R. is ante-dated and that too was prepared after due consultation and deliberation with the police officer and was lodged on next day of the incident showing it to have been lodged promptly on the day of incident itself. The specific case of the prosecution is that accused Sudhir Kumar was weilding rifle and he had given rifle shot to the deceased but the absence of rifle injuries on the person of deceased belies the prosecution case and the witnesses deserve to be termed as wholly unreliable witnesses especially when there is no corroboration by the evidence of independent witnesses who were available but could not be produced for the reason best known to the prosecution and lastly, he submitted that recording of finding of acquittal vide impugned judgment and order by the learned trial Court is an additional circumstance in favour of the accused respondents that they are innocent and it is settled proposition of criminal law that if two views are possible on the basis of evidence on record then one which is favourable to accused should be preferred and the finding of acquittal of accused should not be reversed simply because another view is equally possible. With the aforesaid submission, learned counsel for the accused respondents prayed to dismiss the Government Appeal. 11. With the aforesaid submission, learned counsel for the accused respondents prayed to dismiss the Government Appeal. 11. Keeping in view the aforesaid submissions made by learned counsel for the parties, when we make appraisal of evidence available on record, we come to the conclusion that the finding of acquittal recorded by the learned trial Court vide impugned judgment and order dated 3.9.1983 is not perverse rather it is based on evidence on record for the following reasons : (i) According to the prosecution, the incident took place on 24.1.1983 at about 5:00 p.m. It started from the gate of the deceased and ended in the nearby Gher of one Jitendra in his village. Written report Exhibit Ka-1 was got prepared after half an hour of incident at spot. First informant P.W.1 Smt. Rajeshwari wife of deceased dictated the report to her devar, Satish Chandra Pandey who reached at spot after half an hour of incident. Then on a tractor driven by Anil, she alongwith the aforesaid Satish Chandra Pandey went to police station Sidhpura (Etah) and lodged it there on the same day at 7:30 p.m. after covering a distance of 3 K.M. from the scene of incident to the police station and then she returned. Admittedly, she was not interrogated at the police station on the day of incident although I.O. interrogated Head Constable 16 Mahavir Singh P.W.5. No inquest could be prepared in the night as, according to prosecution there was no source of light sufficient to prepare the inquest. The said inquest was prepared on the next day of the incident i.e. on 25.1.1983 which is Exhibit Ka-5 on record. The time of lodging of F.I.R. has not been mentioned in column No. 1 which is meant for the purpose. This column is blank as to when the F.I.R. was lodged in the police station. Likewise, police form No. 13, column No. 2 is meant for mentioning the time of lodging the F.I.R. but this time has not been mentioned therein. The column is blank on that point. Nothing has been done in this case in the night except the recording of the statement of P.W.5 Head Constable under Section 161 Cr.P.C. by the I.O. of this case before proceeding for spot from the police station on 24.1.1983. As is evident from the perusal of his deposition on record. The column is blank on that point. Nothing has been done in this case in the night except the recording of the statement of P.W.5 Head Constable under Section 161 Cr.P.C. by the I.O. of this case before proceeding for spot from the police station on 24.1.1983. As is evident from the perusal of his deposition on record. From the evidence of I.O., P.W.6 it transpires that he had started investigation on 24.1.1983 before proceeding for spot. P.W.3 Arvind Pandey is the son of deceased who has deposed that written report Exhibit Ka-1 was prepared by his uncle Satish Chandra Pandey in his own handwriting and signature at spot after the arrival of police. According to him the aforesaid Satish Chandra Pandey had brought the police at spot and thereafter he prepared the report and he obtained the signature of the mother of this witness thereon and handed it over to the police at spot itself. There is nothing on record to disbelieve the aforesaid version of P.W.3. Therefore, the claim of the prosecution that I.O. reached at spot after the F.I.R. was lodged by the first informant at the police station on 24.1.1983 at 7:30 p.m. belies. The possibility of consultation, fabrication, maneuvering and F.I.R. being afterthought cannot be ruled out. Not only this the aforesaid written report Exhibit Ka-1 was nothing but a statement of the first informant narrating the incident which was reduced to writing and signed by her before handing it over to the police (I.O.) of the case at spot during the course of investigation and therefore, it is hit by the provisions contained under Section 162 Cr.P.C. and it cannot be read in evidence and once this F.I.R. renders inadmissible the entire prosecution case is liable to be thrown-out. It is this F.I.R. which contains the name of accused and narration of the incident of murder of the deceased. The date, time and place everything looses its sanctity and reliability. The position being so the claim of P.W.1 Smt. Rajeshwari that the F.I.R. was registered on 24.1.1983 at 7:30 p.m. and also the evidence of Head Constable 16, P.W. 5 that he drew the chik report Exhibit Ka-3 and made entry in general diary rapat No. 22 on 24.1.1983 at 7:30 p.m. on the basis of the written report Exhibit Ka-1 is proved to be a bundle of lie. Not only the deposition of P.W. 5 rather the entries made in the general diary regarding the registration of case and drawing of chick report also proved to be false. The position being so the claim of I.O., P.W. 6 that he interrogated the Head Constable 16, P.W. 5 at police station on 24.1.1983 soon after the lodging of F.I.R. is also false and, therefore, the investigation appears to be tainted. Even at the risk of repetition it may be added that according to the inquest Exhibit Ka-5, panchanama was started on 25.1.1983 at 7:30 a.m. and it was completed on 25.1.1983 at 9:00 a.m. and after preparing all necessary papers thereafter including the police form No. 13 were annexed with it and all those papers were sent to mortuary alongwith sealed dead body of deceased for subjecting it to post-mortem. Had F.I.R. been there in existence till 9:00 a.m. on 25.1.1983, the time of lodging the F.I.R. must have been mentioned in inquest in column No. 1 and also in police form No. 13 in column No. 2. Absence of the entry of time of lodging F.I.R. in the relevant column of aforesaid two important papers gives only one conclusion that at least till 25.1.1983 at 9:00 a.m. the F.I.R. was not in existence while the head constable has shown that he had drawn the chik report and registered the case on 24.1.1983 at 7:30 p.m. which is clearcut proof of report being ante-dated and once the F.I.R. is found ante-dated, no reliance can be placed on prosecution story. 12. The second point which weighs much with us is that It is a definite case of prosecution as deposed to by three witnesses on facts who claim themselves to be a witness of an eye account of incident that Sudhir Kumar accused fired with rifle. Not only this Rejeshwari, first informant has gone to the extent of saying that she knows the difference in between gun and rifle. At no point of time any excuse was extended by prosecution on this point. It is constant case of the prosecution that all the six accused have fired at the deceased. Not only this Rejeshwari, first informant has gone to the extent of saying that she knows the difference in between gun and rifle. At no point of time any excuse was extended by prosecution on this point. It is constant case of the prosecution that all the six accused have fired at the deceased. Regarding Sudihir Kumar it has come in the evidence of all the three witnesses that before the deceased entered into Gher of one Jitendra he was shot at by Sudhir Kumar with rifle and after his entering the Gher he was again shot at with fire arm by all six accused persons including Sudhir Kumar who was rifle weilder. Therefore, the absence of rifle injuries is a clear cut case of inconsistency between medical evidence and the ocular testimonies of the prosecution witnesses who are highly interested in the conviction of accused being related to the deceased. The deposition of all the three witnesses on facts, on being tested on the anvil of strict judicial scrutiny, gives the clear picture that the ocular testimony is inconsistent with the medical evidence on the point of absence of rifle injury on the one hand and on the other that number of injuries did not correspond to the number of firings opened by six accused persons coupled with the fact that accused Sudhir Kumar and Pappu are said to have fired at two occasions as stated above. Therefore, it is our firm conclusion that medical evidence does not support the testimony of this highly interested witness on fact and learned trial Court has rightly held that P.Ws. examined on fact of the case are unreliable and accused respondents deserve to be acquitted. Our opinion based on the evidence on record being so we do not think it proper to probe further into the evidence touching all the points argued by learned counsel for the parties. Suffice it to say, that the view taken by the learned trial Court is just and proper and the findings of acquittal recorded vide judgment and order dated 3.9.1983 does not deserve any interference by this Appellate Court. Consequently, we dismiss the appeal and uphold the impugned judgment and order of acquittal dated 3.9.1983 passed by the learned trial Court. Accused respondent Nos. 4 and 5 Gopal and Nahar Singh have died, therefore, appeal filed against them stood abated vide order dated 2.12.2010. Consequently, we dismiss the appeal and uphold the impugned judgment and order of acquittal dated 3.9.1983 passed by the learned trial Court. Accused respondent Nos. 4 and 5 Gopal and Nahar Singh have died, therefore, appeal filed against them stood abated vide order dated 2.12.2010. Rest of accused respondent Nos. 1, 2, 3, and 6 Sudhir Kumar, Pappu alias Brij Bhushan, Ram Larete and Gajju are on bail, they need not surrender, their bail bonds are cancelled and sureties stand discharged.