JUDGMENT Akhtar Husain Khan, J. Present appeal has been filed by accused-appellants Veer Bhan Singh, Ram Chandra, Digvijay, Gopal and Saroop Singh under Section 374 Cr.P.C. against judgement and order dated 13.01.1986 passed by 2nd Additional Sessions Judge, Bijnor in Sessions Trial No. 21 of 1985, State Vs. Veer Bhan Singh and others, under Sections 147, 148, 302/149 I.P.C., P.S. Noorpur, District Bijnor; whereby learned 2nd Additional Sessions Judge, Muzaffarnagar has convicted accused-appellant Veer Bhan Singh for offences punishable under Sections 147, 148, 302 I.P.C. and accused-appellants Ram Chandra, Digvijay, Gopal and Saroop Singh for offences punishable under Section 147 and Section 302 read with Section 149 I.P.C. Learned 2nd Additional Sessions Judge sentenced accused-appellant Veer Bhan Singh for offence punishable under Section 302 I.P.C. with imprisonment for life, for offence punishable under Section 147 I.P.C. with rigorous imprisonment of one year and for offence punishable under Section 148 I.P.C. with rigorous imprisonment of two years. Learned 2nd Additional Sessions Judge sentenced accused-appellants Ram Chandra, Digvijay, Gopal and Saroop Singh for offence punishable under Section 302 read with Section 149 I.P.C. with imprisonment for life and for offence punishable under Section 147 I.P.C. with rigorous imprisonment of one year. Learned 2nd Additional Sessions Judge directed that all the sentences of all the above accused-appellant shall run concurrently. 2. During pendency of appeal accused-appellants Veer Bhan Singh, Ram Chandra and Saroop Singh have died. Appeal abated in respect of them. 3. Sri Veer Singh, learned counsel appeared on behalf of accused-appellants and learned A.G.A. appeared on behalf of State. 4. We have heard both parties and perused the record. 5. According to F.I.R. Exhibit Ka.01 in brief prosecution case is that about two years before the occurrence deceased Mangla, brother of complainant Chhote Singh has taken land of Gram Samaj for Rs. 2,000/- from the accused Veer Bhan Singh for installing Kolhu. He gave Rs. 2,000/- to the accused Veer Bhan Singh and occupied the land and installed Kolhu. In the evening of the day before occurrence, accused Veer Bhan Singh again demanded money from Mangla, brother of complainant Chhote Singh for permitting him to retain the land further more. He asked Mangla, brother of complainant Chhote Singh either to pay him Rs. 2,000/- or to vacate the land. In the evening of the day before occurrence, accused Veer Bhan Singh again demanded money from Mangla, brother of complainant Chhote Singh for permitting him to retain the land further more. He asked Mangla, brother of complainant Chhote Singh either to pay him Rs. 2,000/- or to vacate the land. Mangla, brother of complainant Chhote Singh told him that he had not given the receipt of money already paid by him, he shall make complaint against him to Deputy Collector, whereupon he (accused Veer Bhan Singh) threatened him to see. 6. According to F.I.R. Exhibit Ka.01, on 6th day of November, 1984 at about 7: 00 a.m. when Mangla came out of his house, accused Veer Bhan Singh, Digvijay, Gopal, Ram Chandra and Saroop Singh came there. Accused Veer Bhan Singh was armed with gun, accused Ram Chandra was armed with lathi and accused Digvijay, Gopal and Saroop Singh were armed with Tabal. Accused Veer Bhan Singh abused Mangla and told him that he would be taught a lesson for demanding receipt of payment. At the same time accused Ram Chandra instigated to kill Mangla and said that he would see the consequences, then accused Veer Bhan Singh fired at Mangla, Mangla fell down and died on the spot. 7. According to F.I.R. Exhibit Ka.01 the occurrence was seen by complainant Chhote PW1, Harkesh, Chunwa, Malkhan PW2 and Chokhey Singh and after the occurrence all accused ran away towards east. 8. After occurrence, PW1 complainant Chhote Singh got written first information report Exhibit Ka.01 by Yashpal Singh and presented the same with his thumb impression in Police Station Noorpur, on the same day i.e. 06.11.1984 at 10: 05 a.m. Whereupon Crime No. 241 of 1984, under Sections 147, 148, 149, 302 I.P.C. was registered in Police Station Noorpur, District Bijnor against accused Veer Bhan Singh, Digvijay, Gopal, Saroop Singh and Ram Chandra and police started investigation. Inquest report of deceased Mangla was prepared and his dead body was sent for postmortem in sealed cover, after having completed other formalities. Later on, police concluded investigation in accordance with law and submitted charge sheet against accused Veer Bhan Singh, Digvijay, Gopal, Saroop Singh and Ram Chandra for offences punishable under Sections 147, 148, 149, 302 I.P.C. Thereafter, concerned Magistrate took cognizance and after compliance of Section 207 Cr.P.C. committed the case to the Court of Sessions for Trial of all accused. Later on, police concluded investigation in accordance with law and submitted charge sheet against accused Veer Bhan Singh, Digvijay, Gopal, Saroop Singh and Ram Chandra for offences punishable under Sections 147, 148, 149, 302 I.P.C. Thereafter, concerned Magistrate took cognizance and after compliance of Section 207 Cr.P.C. committed the case to the Court of Sessions for Trial of all accused. Then Sessions Trial No. 21 of 1985 State Vs. Veer Bhan Singh and others was registered in the Sessions Court of District Bijnor. Later on, said Sessions Trial was transferred to the Court of 2nd Additional Sessions Judge, Bijnor who framed charges against accused Veer Bhan Singh for offences punishable under Sections 147, 148 and 302 I.P.C. and against accused Ram Chandra, Digvijay, Gopal and Saroop Singh for offences punishable under Sections 147 and 302 read with Section 149 I.P.C. All the accused pleaded not guilty and claimed to be tried. 9. Prosecution examined PW1 complainant Chhote Singh, PW2 Malkhan, PW3 S.I. Surendra Singh, PW4 Constable 100 Amrish Pal Singh, PW5 Dr. Narendra Kumar, PW6 Jaswant Singh and PW7 Ram Gopal to prove charges levelled against all accused. 10. After evidence of prosecution statements of all the accused were recorded under Section 313 Cr.P.C. in which all the accused stated that they have been falsely implicated due to animosity. No evidence was adduced in defence on behalf of accused. 11. Learned 2nd Additional Sessions Judge, Bijnor heard the arguments of both the parties and passed impugned judgement and order whereby he convicted and sentenced all accused-appellants as mentioned above. 12. Learned counsel for the accused-appellants contended that judgement and order passed by Trial Court is against evidence as well as against law. 13. Learned counsel for the accused-appellants contended that the accused-appellants are innocent and have been falsely implicated. He further contended that evidence on record is not sufficient to hold accused-appellants guilty of offences punishable under Section 147 I.P.C. and Section 302 read with Section 149 I.P.C. 14. Learned counsel for the accused-appellants prayed that appeal should be allowed and accused-appellants should be acquitted. 15. Learned A.G.A. contended that conviction recorded against accused-appellants by Trial Court is just and based on evidence. He further contended that Evidence on record is sufficient to prove the accused-appellants guilty of offences punishable under Section 147 I.P.C. and Section 302 read with Section 149 I.P.C. 16. 15. Learned A.G.A. contended that conviction recorded against accused-appellants by Trial Court is just and based on evidence. He further contended that Evidence on record is sufficient to prove the accused-appellants guilty of offences punishable under Section 147 I.P.C. and Section 302 read with Section 149 I.P.C. 16. Learned A.G.A. prayed that appeal should be dismissed. 17. We have considered the submissions made by both parties. 18. Out of 7 witnesses examined by prosecution, PW1 complainant Chhote Singh and PW2 Malkhan are the witnesses of fact and occurrence. They have supported the version of F.I.R. in toto. PW1 Chhote Singh has proved F.I.R. Exhibit Ka.01 also. 19. PW3 S.I. Surendra Singh has stated in his statement that on 06.11.1984 he was S.I. in P.S. Noorpur. He has proved chik F.I.R. Exhibit Ka.02 and copy of G.D. relating to registration of Crime Exhibit Ka.03. PW3 S.I. Surendra Singh has stated in his statement that he has prepared inquest report of deceased Mangla after having appointed Panchas. He has proved inquest report Exhibit Ka.04 in his statement. He has further proved photo nash Exhibit Ka.05, letter to R.I. Exhibit Ka.06, letter to C.M.O. Exhibit Ka.07, letter to Medical Officer Exhibit Ka.08 and Challan Nash Exhibit Ka.09. He has stated in his statement that he had sent the dead body in sealed cover through Constable 351 Satyaveer Singh and Constable 100 Amrish Pal. He has stated in his statement that he has recovered pellet from the wall of Nanhu and has prepared recovery memo Exhibit Ka.10. 20. PW3 S.I. Surendra Singh has identified the said pellet material Exhibit 01 before Court. 21. PW4 Constable 100 Amrish Pal has stated that he along with Constable 351 Satyaveer Singh took the dead body of Mangla in sealed cover and brought it to post mortem house. Dead body remained in sealed cover till it was in his costudy. 22. PW5 Dr. Narendra Kumar has stated that on 07.11.1984 he was posted in Hospital, Bijnor as Pathologist. On that day at 3: 30 p.m. he conducted post mortem of deceased Mangla aged about 30 years. He has stated in his statement that the dead body was brought by Constable 351 Satyaveer Singh and Constable 100 Amrish Pal in sealed cover. 23. PW5 Dr. Narendra Kumar has proved post mortem report of deceased Mangla Exhibit Ka.11. 24. PW6 Jaswant Singh is the Investigating Officer. He has stated in his statement that the dead body was brought by Constable 351 Satyaveer Singh and Constable 100 Amrish Pal in sealed cover. 23. PW5 Dr. Narendra Kumar has proved post mortem report of deceased Mangla Exhibit Ka.11. 24. PW6 Jaswant Singh is the Investigating Officer. In his statement he has proved the site plan of place of occurrence Exhibit Ka.12 and charge sheet Exhibit Ka.13. 25. PW7 Ram Gopal has stated in his statement that on 16.11.1984 he was Lekhpal of Village Khanpur Billauch. He has stated that Exhibit Ka.02, Ka.03, Ka.04 and Ka.05 are in his handwriting and contain his signature. He has stated that Exhibit Ka.03 has been traced from original map of Village, Exhibit Ka.04 and Ka.05 are the extract of Khasra and Khatauni. On the above papers Exhibit Ka.14, Ka.15, Ka.16 and Ka.17 has been marked by Trial Court. 26. We have gone through whole evidence on record. 27. In F.I.R. Exhibit Ka.01 no allegation regarding participation of accused-appellants Digvijay and Gopal in occurrence has been made. Relevant portion of F.I.R. Exhibit Ka.01 is reported below: - **vkt lqcg djhc 7 cts esjk HkkbZ eaxyk ?kj ls ckgj fudyk rks gekjs xkao ds ohjHkku flag ,l@vks0 jke pUnj flag] cUnwd fy;s] fnfXot; iq= pUnziky flag o iz/kku dk HkkbZ xksiky] Lo: i flag iq= eaXxw flag gfjtu roy fy;s o jke pUnj flag iq= vejko flag ykBh fy;s Fks iz/kku us eaxyk dks xkfy;ka nh vkSj dgk ys rq>s jlhn ekaxus dk etk p[kkrs gSA rHkh mlds firk jke pUnj flag us dgk fd tku ls ekjks lkys dks eS lc ns[k ywWxkA rHkh ohjHkku us eaxyk ds lhus ij cUnwd ls xksyh ekjh xksyh yxrs gh og fxj dj ej x;kA** 28. Out of seven witnesses examined by prosecution only PW1 complainant Chhote Singh and PW2 Malkhan are witnesses of facts and occurrence. Rest witnesses are formal. 29. Neither PW1 complainant Chhote Singh nor PW2 Malkhan has stated in his statement that accused-appellants Digvijay and Gopal played any role in occurrence. 30. Out of seven witnesses examined by prosecution only PW1 complainant Chhote Singh and PW2 Malkhan are witnesses of facts and occurrence. Rest witnesses are formal. 29. Neither PW1 complainant Chhote Singh nor PW2 Malkhan has stated in his statement that accused-appellants Digvijay and Gopal played any role in occurrence. 30. Relevant portion of statement of PW1 complainant Chhote Singh is reproduced below: - eS o esjk HkkbZ gjds'k o pquok viuh ¼esjh½ cSBd ij FksA eaxyk gekjs njokts dh djoV esa jkLrs ij [kM+k FkkA ohjHkku flag] jke pUnz] fnxfot;] xksiky o l: i flag ogkW vk;sA ohjHkku ij ml le; canwd] jke pUnz ij ykBh o ckdh rhuksa ij rcy FksA ohjHkku us vkrs gh eaxyk dks xkfy;kW nh vkSj dgk fd jlhn ekWxus dk etk vc rq>s p[kk;saxsA jke pUnz flag us ohjHkku ls dgk fd xksyh ekj ns eSa Hkqxr yWwxkA ohjHkku us QkSju gh eaxyk ds xksyh ekj nhA eaxyk ds xksyh yxhA xksyh yxrs gh og fxj x;k vkSj ej x;kA ml le; xokgku ey[kku flag] pks[ks flag gjds'k o pquok Hkh ogkW vk x;s Fks ftUgksus ?kVuk ns[khA fQj eqyfteku iwjc dks Hkkx x;sA 31. Relevant portion of statement of PW2 Malkhan is reproduced below: - eSa ml le; vius ?ksj esa FkkA ohjHkku cUnwd fy;s gq;s] jke pUnz flag ykBh fy;s gq;s vkSj xksiky] l: i o fnxfot; rcy fy;s gq;s jkLrs ls ifPNe dh rjQ [kMs+ FksA tSls gh eaxyk vius njokts ls ckgj fudyk rks ohjHkku us dgk fd rq>s jlhn ekWxus dk etk vc nsxsaA jke pUnz flag us dgk fd ekj ns lkys ds xksyh] eS lc ns[k ywWxkA ohjHkku us eaxyk ds xksyh ekj nh tks eaxyk ds 'kjhj ls ikj gksdj nhokj esa yxh eaxyk fxj x;k o ej x;kA ;g okdk esjs vykok NksVs flag] pks[ks flag] gjds'k o pquok us Hkh ns[kkA ;s yksx xksyh ekj dj iwjc dh rjQ dks Hkkx x;sA 32. It is apparent from F.I.R. Exhibit Ka.01 as well as statement of PW1 complainant Chhote Singh and PW2 Malkhan that accused Veer Bhan Singh Pradhan abused Mangla and told him that he shall be taught lesson for demanding receipt of payment and at the same time accused Ram Chandra instigated to kill Mangla and said that he would see the consequences. Then accused Veer Bhan singh fired at Mangla. Mangla fell down and died on spot. Then accused Veer Bhan singh fired at Mangla. Mangla fell down and died on spot. Thus it is apparent that only accused Ram Chandra and Veer Bhan Singh has played role in occurrence. Accused-appellants Digvijay and Gopal have neither played any active role nor any passive role in the alleged occurrence. 33. Perusal of post mortem report Exhibit Ka.11 as well as statement of PW5 Dr. Narendra Kumar shows that only two ante mortem injuries of fire arm were found on dead body of Mangla. Out of which injury number 1 is entry wound and injury no. 2 is exit wound. Thus injuries found on dead body of deceased Mangla may be caused by single shot. Facts mentioned above show that on instigation of accused Ram Chandra, accused Veer Bhan Singh fired at Mangla. Therefore, after having considered whole facts and evidence on record we are of the view that there is no sufficient ground to hold that accused-appellants Digvijay and Gopal formed an unlaw full assembly along with accused Ram Chandra, Veer Bhan Singh and Saroop with common object of committing murder of Mangla (deceased). 34. It is a matter of common experience that some times innocent people are also implicated alongwith real culprits due to animosity or with intent to harass people of opposite party. In view of discussion made above implication of accused-appellants Digvijay and Gopal appears to be the result of tendency mentioned above. Accused Ram Chandra and Veer Bhan Singh who are the main accused of occurrence have died. 35. For reasons recorded above, we are of the view that evidence on record is not sufficient to hold accused-appellants Digvijay and Gopal guilty of offences punishable under Section 147 and Section 302 read with Section 149 I.P.C. Therefore, accused-appellants Digvijay and Gopal are given benefit of doubt. 36. In view of conclusion drawn above, we are of the view that Trial Court has not evaluated evidence on record in accordance with law. Conviction as well as sentence recorded by Trial Court against accused-appellants Digvijay and Gopal is not sustainable. Appeal is allowed. 37. Conviction as well as sentence recorded by Trial Court against accused-appellants Digvijay and Gopal vide impugned judgement and order dated 13.01.1986 is set aside and both accused-appellants are acquitted from all the charges levelled against them. 38. Accused-appellants are on bail. Now they need not to surrender. Appeal is allowed. 37. Conviction as well as sentence recorded by Trial Court against accused-appellants Digvijay and Gopal vide impugned judgement and order dated 13.01.1986 is set aside and both accused-appellants are acquitted from all the charges levelled against them. 38. Accused-appellants are on bail. Now they need not to surrender. Their bail bonds are cancelled and sureties are discharged. Send back the records of Lower Court immediately.