JUDGMENT Amar Saran, J. 1. This criminal appeal arises out of the judgment and order dated 30.10.1982 passed by the learned Additional District and Sessions Judge, Shahjahanpur whereby he has convicted and sentenced the appellants to life imprisonment under sections 302/149 IPC and two years RI under section 148 IPC. However, both the sentences were directed to run concurrently. 2. This criminal appeal was preferred by the five accused-appellants Kaptan Singh, Lal Sahai, Paras Ram, Chhotey and Vishram. As Lal Sahai and Chhotey have died and a report dated 29.4.2014 to this effect has been received from the Chief Judicial Magistrate, Shahjahanpur, the appeal filed by them was directed to be abated by order dated 8.10.2014. 3. We have heard Shri P.K. Singh, learned counsel for the appellants and learned Additional Government Advocate and perused the record of the case. 4. The FIR of this case records that one Ram Sahai had been murdered in village Ghusgawan after Dashehra. In that case Vishnu and Indal were made accused. The present deceased Shiv Singh was a close relation of Vishnu and on visiting terms to his house. Vishram, son of Ram Sahai and Kaptan Singh, Lal Sahai and Chhotey, nephew of Ram Sahai suspected that Shiv Singh was also involved in the murder of Ram Sahai and on account of that enmity, on 3.12.1980 at about 5 pm when Shiv Singh along with Soran Singh were returning on a motorcycle to their village Ghusgawan, which was being driven by Shiv Singh, and were passing on a road in front of the Temple, which was in the south of the village, the five accused persons named above, came out from the cover of "Bathias" (cow dung heap), the appellant Kaptan was armed with a double barrel gun, Paras Ram and Ram Sahai were armed with single barrel guns and Chhotey and Vishram were armed with "Kantas". Kaptan Singh crying that Shiv Singh was responsible for his uncle's murder and should not be spared, attacked the deceased Shiv Singh. On the cries raised by Shiv Singh and by Soran Singh, the informant Mulayam Singh accompanied by Rameshwar Singh and Munshi Singh came rushing from the Temple. Kaptan Singh fired with his double barrel gun on the deceased Shiv Singh because of which the deceased and Soran Singh, left the motorcycle, and ran towards the village. On the cries raised by Shiv Singh and by Soran Singh, the informant Mulayam Singh accompanied by Rameshwar Singh and Munshi Singh came rushing from the Temple. Kaptan Singh fired with his double barrel gun on the deceased Shiv Singh because of which the deceased and Soran Singh, left the motorcycle, and ran towards the village. Kaptan Singh, Lal Sahai and Paras Nath chased the deceased whilst firing at him, although Soran ran aside. Chhotey and Vishram ran towards Shiv Singh with "Kantas". As a result of firearm injuries Shiv Singh fell down on the lane, then Kaptan Singh, Lal Sahai, Chhotey, Paras Ram and Vishram caught hold of the deceased and dragged him to the baggar of Ajudhi. Even though cries were raised by the witnesses, but the appellants did not release the deceased. Eventually on the pressure of the witnesses and villagers, the appellants left in the south west direction. The deceased had many firearms injuries on his body. The report of this incident was lodged by the informant Mulayam Singh at PS Nigohi, which was 11 miles away at 3.10 a.m., on 4.12.1980. 5. The prosecution has examined three witnesses of fact, i.e. PW 1, Mulayam Singh, PW 2, Soran Singh and PW 3, Munshi Singh and four formal witnesses i.e., PW 4, Shri Mishri Lal, the first investigating officer, PW 5, Dr. M.L. Tandon, who conducted the post mortem on the body of the deceased, PW 6, Constable Sobaran Singh, who carried the dead body of the deceased for post mortem and PW 7, the second investigating officer of the case, who submitted the charge sheet. 6. The post mortem, conducted on the body of the deceased by Dr. M.L. Tandon, PW 5, revealed the following injuries: "1. Gun shot wound of entry 7 cm x 5 cm x brain cavity deep on back of left side head 9 cm above and behind left ear with fracture of bone underneath. Tattooing around the margins present. Margins inverted. Directions from back to left side to front. 2. Incised wound 7 cm x 2 cm x bone deep on back of head left side 3 cm below 7 behind the right ear and 3 cm below injury No. 1. 3. Abraded wound 6 cm x 1 cm on back of neck at right side 1 cm below and behind to the right ear. 4. 2. Incised wound 7 cm x 2 cm x bone deep on back of head left side 3 cm below 7 behind the right ear and 3 cm below injury No. 1. 3. Abraded wound 6 cm x 1 cm on back of neck at right side 1 cm below and behind to the right ear. 4. Abrasion 1 cm x 0.5 cm on front of nose in the middle. 5. Incised wound 2 cm x 0.5 cm deep on left side back 11 cm below injury No. 2 just to left of medial line. 6. Three abrasions each measuring 14 cm x 0.2 cm on left side back and parallel to each other and 1 cm apart from each other 5 cm below from angle left scapula. 7. Gun shot wound of entry 1.5 cm x 1.5 cm x chest cavity deep on right side back portion of fold of axilla 14 cm to right of nipple. Margins inverted. Tattooing around margins of wound present. Direction from back and right side to front and left side. 8. Gun shot wound of exit 2 cm x 2 cm x chest cavity deep on right side chest 5 cm below from fold of axilla and 3 cm to left side in front of injury No. 5 and connecting to injury No. 6. Margins irregular. 9. Contusion 6 cm x 1.5 cm on right side about 5 cm above and inner to injury No. 7. 10. Contusion 1 cm x 0.5 cm on front of right arm 4 cm above right elbow. 11. Gun short wound of entry 8 cm x 5 cm x bone through and through on back and outer aspect of left arm 1 cm above elbow with fracture of bone. Margins inverted. Tattooing around margins present. Direction from left side posterior aspect to front and to right. 12. Gun shot wound of exit 10 cm x 7 cm x through and through upper aspect on front of left arm 1 cm above elbow. Margins irregular and connecting to injury No. 11. 13. Gun shot wound of entry 2 cm x 1 cm x muscle deep on back of right thigh 21 cm below and behind right ante sup locus point. Margins inverted. Tattooing around the margins present. Directions from back to front left side. 14. Abrasion 6 cm x 5 cm x 4 cm above injury No. 13. 13. Gun shot wound of entry 2 cm x 1 cm x muscle deep on back of right thigh 21 cm below and behind right ante sup locus point. Margins inverted. Tattooing around the margins present. Directions from back to front left side. 14. Abrasion 6 cm x 5 cm x 4 cm above injury No. 13. 15. Gun shot wound of entry 5 cm x 4 cm x muscle deep on left buttock 11 cm above behind greater trochanter of left femur 7 9 below and away from nucal cleft. Margins inverted, tattooing present. 16. Gun shot wound of entry 5 cm x 4 cm x muscle deep back of left thigh 7 cm below injury No. 15. Margins inverted. Tattooing around margins present. Direction of these two injuries from back and left to front. 17. Gun shot wound of entry 2.5 cm x 1.5 cm x muscle deep on front of left thigh 7 cm below anterior sup. Iliac spine, space. It connects injury No. 13. 7. The medical evidence revealed that the rigor mortis had passed off from the upper extremities and was passing from the lower extremities. The post mortem examination was conducted at 3.45 p.m., on 5.12.1980 and the deceased was said to have died about 2 days earlier due to shock and haemorrhage and injury to brain as a result of ante mortem injuries. The doctor had recovered 16 small pellets and wadding pieces from the lacerated wound on the head of the deceased. Both the lungs and pericardium were found lacerated. Left chamber of the heart was also found lacerated and 2 small pellets were recovered from the chest cavity. There was a brain cavity and the bones of the skull had been fractured. According to Dr. M.L. Tandon, 46 small pellets and wadding pieces had been recovered from the left thigh and buttock and 14 small pellets and wadding pieces had been recovered from the left thigh and buttock. He stated that in his opinion the deceased Shiv Singh could have died at 5.00 p.m., on 3.12.1980 on account of the ante-mortem injuries received by him. 8. P.W. 1, Mulayam Singh, who is the cousin brother of the deceased, has deposed that he knew the five accused persons. He was sitting at the Temple along with Munshi Singh and Rameshwar. 8. P.W. 1, Mulayam Singh, who is the cousin brother of the deceased, has deposed that he knew the five accused persons. He was sitting at the Temple along with Munshi Singh and Rameshwar. Shiv Singh came from the eastern direction on a motorcycle, which he was riding, Soran was sitting pillion on it, then he saw the five accused persons emerging from near the "Bathias" carrying firearms and "Kantas". He only heard the sound of the first fire, but was unable to identify the assailants. Then the motorcycle toppled and fell in a ditch. Thereafter Kaptan Singh raised a cry that Shiv Singh had got his uncle killed and he should be murdered. Kaptan Singh fired on the deceased which struck the deceased, who also fell on the ditch along with the motorcycle. Then Shiv Singh and Soran got up and ran in the northern direction in the village lane. Soran Singh fell aside. Shiv Singh was chased by the assailants who also made 2-3 fires whilst he was running which also struck Shiv Singh. Then Shiv Singh fell near the baggar of Ali Sher. Then the accused made 2-3 fires on him. Vishram and Chhotey wielded their "Kantas" at Shiv Singh. This incident was witnessed by him from the lane near the house of Narain. Munshi Singh was also present along with him. Soran Singh did not receive any injury in the incident. Thereafter the assailants dragged the body towards the baggar of Ajudhi. He affirmed his report and disclosed that he reached the police station Nigohi which was 11 miles away from the village. As Rameshwar colluded with the assailants, he has not been examined. One and a half months prior to the murder of Shiv Singh, Ram Sahai had been murdered in which Vishram and Indal were made accused. Shiv Singh was the maternal uncle of Vishram who used to do Pairvi in that case. 9. PW 2, Soran Singh disclosed that he was returning from Shahjahanpur riding pillion on the motorcycle driven by Shiv Singh, the deceased. Shiv Singh was the maternal uncle of Vishram who used to do Pairvi in that case. 9. PW 2, Soran Singh disclosed that he was returning from Shahjahanpur riding pillion on the motorcycle driven by Shiv Singh, the deceased. They have left Shahjahanpur at 4.00 p.m. After half an hour, they reached the edge of the village and was proceeding on the road in front of the Temple and when the motorcycle had reached in front of the house of Munshi Lal, then Kaptan Singh had emerged, who cried that it was a good opportunity to kill Shiv Singh, who was responsible for his uncle's murder and then fired on Shiv Singh with his double barrel gun. The other assailants were following him. Chhotey and Vishram had "Kantas" whilst Lal Sahai and Paras were carrying single barrel guns. The fire made by Kaptan Singh, struck the light of the motorcycle, which was broken. Then motorcycle went further and fell in a ditch because of which they fell down. Before the motorcycle fell down, Kaptan Singh made a second fire which struck Shiv Singh on his hand. Shiv Singh got up and started running and he was immediately followed by the assailants, into the lane proceeding in the northern direction. This witness however fell aside. On the way, the assailants made 2-3 fires on Shiv Singh. This witness was also chasing the assailants along with Mulayam Singh, Munshi Singh and Rameshwar, who were stationed at the temple. They were raising cries that Shiv Singh had been shot at. When Shiv Singh reached the house of Tilak, then accused carrying "Kantas", gave him one or two blows. Shiv Singh fell near the house of Tilak. The witnesses saw the incident from near the house of Narain Munshi. 10. PW. 3, Munshi Singh has deposed that on the date of incident, he was present at the village Temple along with Mulayam Singh and Rameshwar. He had heard the sound of the motorcycle and the fire made on it. The motorcycle was driven by Shiv Singh and Soran Singh was sitting behind him. He then described the weapons of assault similar to the other witnesses and stated that after exhortation that Shiv Singh was responsible for his uncle's murder, Kaptan Singh had fired on Shiv Singh, which had struck the motorcycle. The motorcycle was driven by Shiv Singh and Soran Singh was sitting behind him. He then described the weapons of assault similar to the other witnesses and stated that after exhortation that Shiv Singh was responsible for his uncle's murder, Kaptan Singh had fired on Shiv Singh, which had struck the motorcycle. The motorcycle had fallen in a ditch along with Shiv Singh and Soran Singh. Shiv Singh, the deceased and Soran Singh had got up and started running to the western direction and then to the north. The assailants had chased them. Soran Singh had escaped. The accused whilst chasing Shiv Singh made 3-4 fires on the way. When Shiv reached near Tilak's house, then Chhotey and Vishram plied "Kantas" on him. The witnesses saw the incident from near the house of Narain. After the incident the accused dragged Shiv Singh, the deceased from in front of the house of Tilak to the baggar of Ajudhi. On the cries of the witnesses the accused proceeded to the south and then in the western direction. 11. The site plan of this incident was got prepared by the investigating officer, PW 4 Mishri Lal on the pointing out of the informant Mulayam Singh, PW 1. 12. In their statements under section 313 Cr.P.C. the accused pleaded that they have been falsely implicated in this case due to enmity and claimed to be tried. 13. It was argued by the learned counsel for the appellants that there is no reliable evidence for connecting the accused persons with this crime, the FIR was delayed by 10 hours for which there was no satisfactory explanation, the medical evidence was inconsistent with the ocular testimony, there was no mention of user of "Kantas" in the FIR or in the statements of the witnesses under section 161 Cr.P.C., there was no corroboration of the evidence of the witnesses from any independent source. There was no reason why the body was dragged for 78 paces from in front of the house of Tilak to the baggar of Ajudhi on the lane in the southern direction. The presence of the informant in the village, who was working as a sentry in the District Cooperative Bank in Budaun, was doubtful, and he appeared to have been called from Budaun, where he used to reside for the purpose of lodging the FIR. The presence of the informant in the village, who was working as a sentry in the District Cooperative Bank in Budaun, was doubtful, and he appeared to have been called from Budaun, where he used to reside for the purpose of lodging the FIR. That there was hardly any motive for the commission of this crime, although there was good reason for false implication of the appellants. The deceased had many enemies, any of whom could have committed his murder. 14. Learned Additional Government Advocate on the other hand argued that the FIR is not unduly delayed as the informant had left for the police station only at 8.00 p.m., to lodge the report which was lodged at 3.10 a.m., on the same night at PS Nigohi, which was 11 miles away. The informant had gone on foot. The eyewitness account is corroborated by the medical evidence. The appellant had the motive for committing the crime as the uncle of Kaptan Singh, Lal Sahai and Chhotey and father of Vishram had been murdered one and a half months prior by Indal and Vishnu and the deceased Shiv Singh was the Pairokar for Vishnu. 15. We need to scrutinize the evidence very carefully and we cannot lose sight of the fact that that this incident has taken place 34 years ago and in the meantime 2 of the accused persons Lal Sahai and Chhotey have died. Appellant Kaptan Singh is presently 67 years in age, Paras Ram is present 74 years in age and Vishram is now 59 years in age. Appellant-Lal Sahai, had he been surviving, would have been 79 years in age presently. 16. So far as the factor of delayed FIR was concerned, we find that this report was indeed lodged 10 hours after the incident. Although it is true that the police station was 11 miles away, but in the FIR it is mentioned by the informant that he had not gone to lodge the FIR initially as it was evening and he was afraid, but he appears to have subsequently mustered courage and had been able to reach the police station at 3.10 a.m., to lodge the report. 17. 17. We fail to understand the reasons as to how a witness who was afraid to lodge the report at an earlier stage immediately after the incident had taken place at 5.00 p.m., could muster courage to leave the village at 8.00 p.m., and to lodge the report at 3.10 a.m. No doubt, it has come in evidence that Mulayam Singh was accompanied by Ram Chandra and Sabir Beg to lodge the report, but these witnesses have not been produced nor has any evidence been led by the prosecution for showing that these persons were unavailable earlier. It has also been admitted by the informant in his cross-examination that at the time of incident, he was working as a Sentry in the District Cooperative Bank in Badaun town, and he used to normally reside in Budaun. However, he claims that one day prior to the incident he had come home for two days after taking leave. The investigating officer does not appear to have obtained any leave certificate etc. from the bank for showing that the complainant had actually obtained leave, nor has the informant himself filed any document, showing grant of leave to him by the bank, which might have corroborated his version. 18. The suggestion of the defence being that this witness was called from the bank after the murder was detected, and he rushed to the village and thereafter he proceeded to the police station Nigohi and hence the report was lodged belatedly at 3.10 a.m. appears to be more acceptable. 19. We also find that the doctor had admitted in his cross-examination that the deceased could have died at 7-8 p.m., looking to the fact that although the post mortem was conducted almost 46 hours of the incident as rigor mortis was present in the lower extremities. 20. Also according to the doctor all the injuries on the deceased had been caused from a distance of 4 paces, which was inconsistent with the version of the prosecution that the deceased was fired upon when he was running. 21. 20. Also according to the doctor all the injuries on the deceased had been caused from a distance of 4 paces, which was inconsistent with the version of the prosecution that the deceased was fired upon when he was running. 21. Another significant inconsistency between the medical evidence and the ocular testimony is that it was specifically been stated by the informant PW 1 that the deceased was fired upon when he was lying flat on his back and the fire had struck the deceased on his back and also on his front side on the chest, but the doctor, in his cross examination, has clearly stated that all the 7-8 injuries were on the back of the deceased and there was not a single firearm injury on the front region of the deceased. 22. We also find that there was absolutely no mention of the wielding of "Kantas" by Vishram and Chhotey in the FIR and in the statements of the witnesses under section 161 Cr.P.C. and it was for the first time the user of "Kantas" has been introduced in Court in evidence. Also in the inquest there was only mention of the use of firearms. 23. We are of the view that there are major problems in placing implicit reliance on the testimonies of the witnesses, who have been examined in this case. It is significant that though Soran Singh was riding pillion on the motorcycle driven by Shiv Singh and he also fell down in a ditch, but he has not received even a scratch on his person, which could have gone a long way to corroborate his presence on the spot. This witness also admittedly left the village for one and a half months before his statement under section 161 Cr.P.C. was recorded, which also detracts from the value of his testimony. The other witness PW 3 Munshi Singh also gave his statement to the police after 4 days, which also detracts from the value of his testimony. 24. Further the witnesses have deposed that the deceased was struck by the fire of Kaptan Singh after that the motorcycle went forward, and fell in a ditch when Shiv Singh also fell down, after Kaptan Singh's fire struck the deceased's hand. Thereafter the deceased ran along with Soran in the northern direction into a lane, where some fires struck the deceased again. Thereafter the deceased ran along with Soran in the northern direction into a lane, where some fires struck the deceased again. Finally the deceased was done to death in front of the house of Tilak, which has been shown at point "F" on the site plan. It was here that the deceased was fired at 3-4 times and also assaulted with "Kantas" by Chhotey and Vishram. Blood only appears to have been collected at this point 'F' on the site plan, and at not other point, although as per the version of the witnesses, the deceased received fire arm injuries on his hand near the ditch where the motor cycle and the deceased and Soran fell down, and again on the lane which ran in the North South direction at one or two points. But no blood appears to have been collected at any other point, other than point 'F' on the site plan. It is also noteworthy that the site plan, which was prepared by the investigating officer PW 4 Mishri Lal on the pointing out by the informant further indicates that the fire on the deceased was made from point "E", which was a vacant land belonging to Ali Sher, but this version has not been deposed to at all by the witnesses in their evidence. In fact it is extremely puzzling and no explanation has been offered as to why the dead body of the deceased was dragged from point "F" from the house of Tilak to point "D", which was 78 paces in the Southern direction to the front of the baggar of Ajudhi. In fact it is extremely puzzling and no explanation has been offered as to why the dead body of the deceased was dragged from point "F" from the house of Tilak to point "D", which was 78 paces in the Southern direction to the front of the baggar of Ajudhi. From this circumstance it appears more probable to us that some assailant might initially have fired at point "A" where some broken pieces of bulb of the motorcycle at the entrance of the village near the house of Munshi Lal, and thereafter some other assailants might have been waiting at point "E" and when the deceased ran to point 'F' in the Northern part of the lane, in front of the house of Tilak Ram, after his motorcycle had fallen at point "C" where there was ditch in front of the temple, and the assailants appear to have attacked him at point 'F' and then to have dragged the deceased from points "F" to "D" in the Southern direction as there appears to be some dragging marks on the body of the deceased and also on the lane. 25. On examining the motive, we also find that Shiv Singh was only shown to be a close relation of Vishnu, he is not said to be an immediate relation of Vishnu and Indal. At the time of incident Vishnu was in jail for the murder of Ram Sahai and it cannot be ruled out that for the purpose of generating counter pressure and for securing bail for Vishnu all the able bodied relations of Ram Sahai have been implicated in this case. It appears that the prosecution side were successful in that venture and subsequently Vishnu and Indal were even acquitted for the murder of Ram Sahai. 26. It has further come in evidence that the deceased Shiv Singh, who was about 40 years in age had a criminal history. It is admitted in the evidence of PW 3, Munshi Singh that the deceased had assisted Sub-Inspector Arjun Singh for getting five dacoits in the adjoining village of Newari killed in a encounter. After that the deceased had even been given a license for a rifle. He was also involved in a trafficking case of a woman and that the police had lodged a case for abduction and trafficking against him and thereafter seized his rifle. After that the deceased had even been given a license for a rifle. He was also involved in a trafficking case of a woman and that the police had lodged a case for abduction and trafficking against him and thereafter seized his rifle. PW 1, Mulayam Singh, also stated that Shiv Singh was also involved in a case of murder. 27. There was also some dispute of the deceased with four persons with whom he has bought some land in auction, but the deceased had not given the land to the other persons with whom he had bought the land and himself sold it off. 28. Thus, there are good reasons for suggesting that others could have been equally or even more interested in the murder of the deceased in comparison to the appellants. 29. Some enmity of the witnesses with the appellants has also been suggested. PW 1 Mulayam has admitted that there was discharge of the effluents of a drain of the appellant Lal Sahai and Man Singh in front of his house, although he denied that he had ever tried to block the drain or there was any dispute with Kaptan Singh on this point. 30. It was also suggested to PW 2 Soran Singh that Lalli, a prostitute was initially kept by his father, who was later kept by Kaptan Singh's father, and that Lalli's field which was earlier cultivated by his father, was subsequently cultivated by Kaptan's family. Although these suggestions were denied by the witness. PW 3 Munshi Singh states that he was not aware if Lalli had initially been kept by Soran's father and subsequently by Kaptan's father. However PW 3 Munshi admitted that he had bought half portion of some land, whose remaining half portion had been purchased by Kaptan Singh. Kaptan Singh had cut its medh (boundary), which was a source of annoyance for him and there was exchange of some bitter words on that score. 31. No weapons, i.e. fire arms or kantas have been recovered from any of the appellants, which might have provided some corroboration of the assault by the appellants on the deceased. 32. In view of what has been indicated hereinabove, we are of the view that the prosecution has not succeeded in establishing its case against the appellants beyond all reasonable doubt. The result is that this appeal succeeds and is allowed. 32. In view of what has been indicated hereinabove, we are of the view that the prosecution has not succeeded in establishing its case against the appellants beyond all reasonable doubt. The result is that this appeal succeeds and is allowed. The order dated 30.10.1982 passed by the Additional District and Sessions Judge, Shahjahanpur convicting and sentencing the appellants is set aside. The appellants are on bail. Their bail bonds are cancelled and sureties are discharged. They need not surrender before the court below. 33. Office is directed to send a copy of this order to the court below.