Arvind Kumar Mishra-I, J. 1. The instant State Appeal has been preferred by the State of U.P. Against judgment and order of acquittal dated 21.9.1985 passed by Additional Sessions Judge, Farrukhabad in Sessions Trial No. 283 of 1983 for offences under sections 148, 302/149 and 307/149 IPC, police station Mohammdabad, District Farrukhabad. By the impugned judgment, and order, Trial Court acquitted all the accused persons under the aforesaid sections of Indian Penal Code. We may observe at the outset that out of six accused-respondents four accused persons, namely, Ishwar Dayal, Kailash, Pooran and Vishnu Dayal have died during pendency of this appeal. The fact of their death was duly inquired into by Chief Judicial Magistrate, Farrukhabad. In this regard a report was submitted vide letter number 107. CJM/14, dated April 11, 2014, which is available on the record, intimating death of above four accused persons. The cases against aforesaid accused persons stands abated on account of their death. Now, there are only two surviving accused respondents, namely, Prabhat @ Prabhash and Brijesh. 2. Prosecution story, as emanates from the record suggests that complainant Keshav Kumar lodged a written report on 3.10.1982 at about 12.30 p.m. wherein it has been stated that the incident took place at 10 a.m. Complainant Keshav Kumar was coming back home from his field alongwith Ram Swaroop and Sarvesh who were moving ahead of him ( complainant). Vinod and Subodh were coming from the eastern side of road on right side of the tubewell. As soon as, the complainant reached near tubewell of Ishwer Dayal, he saw Santosh Kumar and Kaushal Kumar ( deceased) facing Vinod Kumar, proceeding towards home. As soon as, Vinod, Subodh, Santosh and Kaushal Kumar came in front of each other; complainant saw accused Prabhash armed with D.B.B.L. Gun, Ishwar Dayal armed with single barrel gun, Kailash armed with rifle, Pooran armed with Single barrel gun and Bishnu and Brijesh armed with country made pistols. All these accused persons were standing on the terrace ( chabutara) of Ishwar Dayal. On seeing the complainant Keshav Kumar, Vinod, Santosh, Subodh and Kaushal Kumar, accused Kailash abused and yelled to kill them all since they all were together in front of door and the accused persons opened fire, which hit on the head of Kaushal Kumar, who died on the spot. On seeing the complainant Keshav Kumar, Vinod, Santosh, Subodh and Kaushal Kumar, accused Kailash abused and yelled to kill them all since they all were together in front of door and the accused persons opened fire, which hit on the head of Kaushal Kumar, who died on the spot. Both Ram Swaroop and Subodh were hit by the pellets fired by the accused persons and sustained injuries on the right side of face and on right hand, respectively. Complainant Keshev Kumar, Ram Swaroop and Subodh sprinted themselves towards the shelter of the terrace of Ram Sewak, defying firing by accused persons. Thereafter, the villagers arrived on the spot. The motive for committing the crime was old enmity due to agricultural field. This First Information Report ( Exhibit Ka-1) was lodged at Case Crime No. 229 of 1982, under sections 147, 148, 149, 302 and 307 IPC at police station Mohammdabad district Farrukhabad on 3.10.1982 at 12.30 p.m. 3. The matter was investigated into and various necessary steps were taken and statement of accused persons were recorded by the I.O. besides preparing site plan of the incident. Body of the deceased Kaushal Kumar was sent for post-mortem examination. During the course of investigation, accused Kailash and Brijesh were arrested and search was made out. Upon search, a half barrel gun and two to four cartridges were recovered from the pocket of shirt of accused Brijesh and nothing was recovered from another accused Kailash. The seizure memo is marked as Exhibited Ka-18. Later on the Investigating Officer arrested accused Pooran Lal and Vishnu @ Vishweshwer Dayal from Habhuda Colony. During their search nothing was recovered from Pooran Lal whereas, a factory made rifle bearing No. 215251 was recovered from left hand and a belt of cartridges fastened in his waist with eleven live cartridges and four blank cartridges were recovered from Vishnu @ Vishweshwer Dayal. Accused Vishnu told that this recovered unlicensed rifle and cartridge belonged to accused Kailash which seizure memo is Exhibit Ka-19. The medical examination of injured Ram Swaroop and Subodh was done on 3.10.1982 at 8.30 and 8.40 p.m., respectively. After completing the investigation, charge-sheet ( Exhibit Ka-15) was filed in Court. Thereafter the matter was committed for trial to the Court of Sessions. The medical examination of injured Ram Swaroop and Subodh was done on 3.10.1982 at 8.30 and 8.40 p.m., respectively. After completing the investigation, charge-sheet ( Exhibit Ka-15) was filed in Court. Thereafter the matter was committed for trial to the Court of Sessions. Accused persons were heard on the point of charge and prima facie ground for framing charges were found under sections 148, 302/149 and 307/149 IPC. Charges were read over and explained to the accused persons, who denied the charges and opted for trial. 4. To prove its case the prosecution produced in all seven witnesses, out of whom three witnesses, namely, Santosh Kumar P.W. 1, Ram Swaroop P.W. 2 and Subodh Kumar P.W. 3 were the witnesses of fact and the rest four were formal witnesses, namely, Dr. K.K. Jagtani P.W. 4, Dr. V.P. Bhatnagar P.W. 5, I.O. S.I. J.P. Singh Gautam P.W. 6 and Dr. H.P. Srivastava P.W. 7. Apart from the above, an affidavit was filed on behalf of Constable Suresh Tiwari in regard to conveyance of the dead body. Thereafter evidence for prosecution was closed and statement of the accused persons were recorded under section 313 Cr.P.C. wherein it was submitted that they have been falsely implicated in this case. 5. Accused persons entered upon their defence and proved various papers as Exhibit Kha-1, Kha-2, Kha-3, Kha-4 and Kha-5 in support of their case. Considering all the evidence, facts and circumstances of the case and after hearing both the sides, Trial Court found various infirmities in the prosecution case, resultantly it acquitted all the accused persons, under aforesaid charges. 6. Hence, this appeal. 7. Basic thrust has been laid on the point of ocular testimony of the two injured witnesses, namely, Subodh and Ram Swaroop; that the Trial Court did not appreciate properly the testimony of the above mentioned two injured witnesses. Similarly, the presence of accused persons on the spot cannot be denied and their presence on the spot is beyond any shadow of doubt. First Information Report is prompt. Old enmity is said to be the motive for committing the crime. Learned Counsel for the respondents submitted that the paper exhibits i.e. Exhibit Kha-1, Kha-2, Kha-3, Kha-4 and Kha-5 establish the defence version that the real incident was caused by some other people, whereas, the complainant side wrongly shifted blame on the accused persons with ulterior motive. Old enmity is said to be the motive for committing the crime. Learned Counsel for the respondents submitted that the paper exhibits i.e. Exhibit Kha-1, Kha-2, Kha-3, Kha-4 and Kha-5 establish the defence version that the real incident was caused by some other people, whereas, the complainant side wrongly shifted blame on the accused persons with ulterior motive. In this context, we may note that the Trial Court on careful appraisal, recorded finding to the extent that prosecution story is full of doubt and it does not inspire confidence. Their testimony appears to be varying and not worthy of credit. Trial Court further discovered in testimony of the injured witnesses that they are suppressing vital facts. We also took note of above findings recorded by the Courts below. 8. Two motives for committing the crime have been suggested at the instance of the prosecution. The first one is enmity due to agricultural field of Vinod and the second one is pendency of criminal case against prosecution witnesses Santosh, Vinod, complainant Keshev Kumar and Servesh. It appears from the testimony of Santosh Kumar P.W. 1 that father of accused Kailash was killed in 1964 in which case the present complainant Keshev Kumar and his cousin brother Ram Prasad and others were accused and the accused persons were acquitted. This particular episode of murder cannot be accepted, as the real motive for committing the offence for the reason that the First Information Report does not disclose any such motive for committing offence. It has also not been disclosed, as to when judgment of acquittal was pronounced at the level of High Court. Similarly, enmity on the ground of agricultural field of Vinod also does not serve the point of motive because no satisfactory evidence has come forth. It is obvious that accused persons are resident of two houses and one man Pooran ( accused) belongs to other caste. He alongwith the other co-accused persons appeared on the spot in front of their house, as if they had every knowledge about the movement of the complainant side. The First Information Report also entails a dramatic version of location and movement of complainant, his brother and son etc.; before the incident. He alongwith the other co-accused persons appeared on the spot in front of their house, as if they had every knowledge about the movement of the complainant side. The First Information Report also entails a dramatic version of location and movement of complainant, his brother and son etc.; before the incident. When offence was committed by the accused persons accused Kailash yelled "all enemies are before us, kill them" whereupon all persons opened fire with their respective weapons, which killed Kaushal Kumar, besides causing injuries to Subodh and Ram Swaroop. Time and place of incident as suggested by the prosecution for committing offence shows that assailants had no previous better occasion than the present one to open assault on complainant side. In this context, we notice that there was some dispute regarding purchase of some truck between Babu Maharaj of Baver and the complainant Keshev Kumar. Complainant Keshev Kumar obtained Rs. one lac in advance but he did not handover truck to Babu Maharaj whereupon the alleged incident was caused by Babu Maharaj and his associates. In this regard, relevant testimony has come forth as testimony of Santosh Kumar P.W. 1, who testified that Babu Maharaj was murdered in 1981 before this incident. In the murder of Babu Maharaj, Keshev Kumar and his cousin brothers were accused. After this incident of murder, complainant Keshev Kumar has also been murdered. Wherein brother of Babu Maharaj, Vishnu Dayal and Rajendra were made accused. This witness P.W. 1 has not refuted sale transaction of the truck in question but has expressed his inability about sale transaction. This gives fillip to the suggestion that incident in question may have been caused either by the associates or relatives of Babu Maharaj. The Chik report of the incident was belatedly sent to Magistrate on 6.10.1982, whereas, police station Mohammdabad is linked with district headquarters by pitch road at a distance of 20 kms. and conveyance on this route is always available. The case crime number has been marked on various papers wherein lot of over writing appears ( on perusal). Further, the case crime number has not been mentioned in letter to R.I. Exhibit Ka-7, photonash Exhibit Ka-8, letter to C.M.O. Exhibit Ka-10, Challan of the dead body Exhibit Ka-17. This fact alludes to the possibility that the case was not lodged at the police station till preparation of these papers. Further, the case crime number has not been mentioned in letter to R.I. Exhibit Ka-7, photonash Exhibit Ka-8, letter to C.M.O. Exhibit Ka-10, Challan of the dead body Exhibit Ka-17. This fact alludes to the possibility that the case was not lodged at the police station till preparation of these papers. An explanation has been given by the Investigating Officer P.W. 6 that in these papers there is no such column for indicating criminal case number but on perusal of record particularly Exhibit Ka-9 specimen seal, site plan Exhibit Ka-12, ordinary and blood stained soil Exhibit Ka-13 and inquest report also does not bear any specific column for mentioning the case crime number but in these papers the Investigating Officer has mentioned case crime number which shows that the Investigating Officer is trying to conceal relevant facts from Court There are lot of inconsistencies in preparation of relevant prosecution papers. Further statement of eye-witnesses were recorded by the Investigating Officer after unreasonable delay, which weakens credibility of eye-witnesses itself. Statement of prosecution witnesses P.W. 1 Santosh Kumar, P.W. 2 Ram Swaroop and P.W. 3 Subodh Kumar were recorded after 10/11 days of the incident, as stated by them in their testimony before the Trial Court. This reasonably gives inference to possibility that after the incident and elapse of 10 to 11 days, the police could not ascertain true facts about perpetrators of the crime. It is settled principle of law that in cases where the Investigating Officer recorded statement of eyewitnesses after ten days when the witnesses are available then version of prosecution witnesses looses its creditworthiness. Lot of infirmities have also been discovered by the Trial Court regarding arrival of dead body at the postmortem house for post-mortem examination, which finding appears to be just and reasonable for the reason that the dead body was sent to headquarter at 2.30 p.m. on 3.10.1982 and the dead body ought to have reached at headquarter in the morning of 4.10.82. But the post-mortem examination was conducted at 4.30 p.m. on 4.10.1982. The delay so caused in post-mortem examination has not been explained. In this context, the relevant GD was placed before the doctor on 4.10.1982 at 4 p.m., which gives clue to the inference that the other details like case crime number of the incident were not ascertained by that time. The delay so caused in post-mortem examination has not been explained. In this context, the relevant GD was placed before the doctor on 4.10.1982 at 4 p.m., which gives clue to the inference that the other details like case crime number of the incident were not ascertained by that time. The most relevant part relates to testimony of two injured witnesses P.W. 2 Ram Swaroop and P.W. 3 Subodh. It was expected that these two witnesses will place before the Trial Court factual details of occurrence. Therefore, their statement has got to be analyzed with caution and circumspection. Admittedly, Keshev Kumar the complainant was murdered after this incident, therefore, his testimony could not be recorded. It is surprising that prosecution did not produce the constable, who prepared chik FIR. As such, the defence was unable to elicit truth from the constable. In the First Information Report ( Exhibit Ka-1), it has been mentioned "May thanay per report karnay chala aaya", this reveals that the First Information Report was not written at the place of occurrence but it was written some were else and possibility shows that it was written at the police station. Equally important is the fact that there is material contradiction in the testimonies of eye-witnesses. In the First Information Report, Kailash and Ishwar Dayal are said to have been possessing rifle and single barrel gun in their hands respectively. But first page of case diary does not mention any weapon in the hand of Kailash. Instead a rifle was mentioned in the hand of Ishwar Dayal. This first page has been proved by defence as Exhibit Kha-1. Explanation has been given that this is due to clerical mistake. The mistake in respect of weapon cannot be accepted to be fair one for the reason that the whole line ( in G.D.) relating to description of Kailash would have been left out as mistake but the mistake cannot be confined to mere weapon being possessed by accused Kailash. There is material contradictions in the testimony of P.W. 1 Santosh and P.W. 2 Ram Swaroop and P.W. 3 Subodh Kumar, as recorded under section 161 Cr.P.C. about the very role of accused Kailash. Their contradictory testimony generates doubt about complicity and involvement of accused Kailash in the very incident. There is material contradictions in the testimony of P.W. 1 Santosh and P.W. 2 Ram Swaroop and P.W. 3 Subodh Kumar, as recorded under section 161 Cr.P.C. about the very role of accused Kailash. Their contradictory testimony generates doubt about complicity and involvement of accused Kailash in the very incident. In the First Information Report, there is no whisper as to whose shot hit Kaushal Kumar, whereas, it has been testified in Court that the shot fired from the rifle of Kailash hit Kaushal Kumar, this statement given in Trial Court is not supported either by the statement recorded under section 161 Cr.P.C. or by description given in the First Information Report. This is also one of the peculiar circumstances of the case that the rifle pellet was not found in the head of deceased Kaushal Kumar while there is no exit wound. This creates doubt about prosecution version regarding death being caused by rifle bullet. It has been stated that all the accused persons opened fire, and the complainant side were so juxtaposed, but the injury was caused to only two persons Subodh and Ram Swaroop. Six accused persons are stated to have fired from their weapons at a distance of 45 paces. Then injury should have been caused normally to all the witnesses by dispersion of pellets, but there is no such injury being caused to all those present over there. There are five pellets injury caused on the right side face of Ram Swaroop, whereas, there is only one opaque shadow of pellet detected in the examination of Ram Swaroop. Similarly in the medical examination injury of pellets has been referred in his forearm of Subodh measuring 18 c.m. x 5 c.m. but on X-ray examination there is no sign of such pellets. Prosecution gives description of incident, as five people following each other are moving ahead and all these persons moved to their north after the gun shot was opened. Whereas, they should be in front of the accused as per movement of complainant side. Vinod followed Subodh and Ram Swaroop followed Vinod, similarly Sarvesh followed Ram Swaroop and complainant Kashev followed Sarvesh. Thus, Subodh was at the top of the line and the complainant was at the end of the line. They were moving towards north from southern side. On the other side, deceased Kaushal was being followed by Santosh but Santosh is not injured. Thus, Subodh was at the top of the line and the complainant was at the end of the line. They were moving towards north from southern side. On the other side, deceased Kaushal was being followed by Santosh but Santosh is not injured. This creates a lot of doubt about the very version of prosecution witnesses. If this is the sequence/line of movement of complainant side when assault was made, then P.W. 1 Santosh should have sustained injuries. But no such injury has been caused to Santosh. This is not only surprising but also most suspicious circumstance of the case which raises doubt about actual happening as alleged by the prosecution witnesses. This is fortified by perusal of Exhibit Ka-12 the site plan, which does not mention the respective places where the two injured Subodh and Ram Swaroop sustained injuries. This creates doubt about presence of these two injured witnesses at the place of occurrence. Exhibit Ka-2 also does not mention the respective position of other witnesses. The respective positions of the prosecution witnesses has not been stated in statement recorded under section 161 Cr.P.C. The above facts create reasonable doubt about veracity of the incident. One particular circumstance of the case is that the accused persons perpetrated crime in front of their houses. Whereas they could have selected very conveniently another place for committing the same crime. There is no reason as to why the accused persons were bent upon choosing place of occurrence in front of their house. Insofar as involvement of accused Pooran is concerned, it can be observed that he is not associated with any of the accused and he has no motive to commit the crime. The documentary evidence produced by the defence confirms enmity of accused Pooran with other co-accused persons. Paper Exhibit Kha-2 shows that father of complainant Jagdish instituted suit against father of Pooran, which was dismissed. Since Pooran is not associated with co-accused persons in any manner, there is no statement regarding the some in the statement under section 161 Cr.P.C. Similar is the situation with the brothers of Ishwer Dayal and brother of Prabhash. This creates doubt on the point of involvement and complicity of these accused persons in the very incident. The recovered weapons from the accused side also does not substantiate its use in the very incident. Even the investigation done in the case is faulty. This creates doubt on the point of involvement and complicity of these accused persons in the very incident. The recovered weapons from the accused side also does not substantiate its use in the very incident. Even the investigation done in the case is faulty. Injuries caused on the two injured witnesses on different places of their person is indicative of fact that the manner of assault and commission of crime is different from the one alleged by the prosecution. 9. The Trial Court has taken exhausting note of the circumstances and fact of the case vis-a-vis testimony on record and has, analyzed every aspect of the case with utmost caution and reason, which on our thoughtful consideration is found to be just and reasonable and based on material on record. We are in agreement with the finding of acquittal recorded by the Trial Court. It is one of the cardinal principal of criminal law that presumption of innocence runs in favour of accused and in case Trial Court records finding of acquittal and it is discovered that this finding is based on material on record then the presumption of innocence is further strengthened, as has been held by the Hon'ble Apex Court in case of Kanhaiya Lal and others v. State of Rajasthan 2013 ( 81) ACC 940 ( SC). 10. Even where two views regarding the same incident are possible and the one choosen by the Trial Court is found to be based on material on record and the same is not perverse then the same need not be interfered with by the Appellate Court, as has been held in the case of Bhadragiri Venkata Ravi v. Public Prosecutor High Court of A.P., Hyderabad 2013 ( 82) ACC 335 ( SC). 11. Discussion made herein above, shows that the finding of acquittal is liable to be upheld by us in appeal and the impugned judgment of acquittal is liable to be confirmed. Grounds urged in support of appeal are devoid of force. Appeal is dismissed. Leave to appeal is refused. Let copy of this order be certified to the Court concerned.