JUDGMENT M.C. Tripathi,J.: - We have heard Sri G.S. Chaturvedi, Advocate assisted by Sri Ajatshatru Pandey, learned counsel for the appellant-Mangey Ram, Sri Dilip Kumar and Sri Pratap Kanchan Singh, learned counsel for the complainant, Sri Anand Tiwari, learned A.G.A. for the State. We have appointed Sri Ajatshatru Pandey, Advocate as Amicus Curiae for the appellant-Rajbeer. 2. This appeal has been filed by the appellants Mangey Ram and Rajbeer against the impugned judgment and order dated 08-11-1982 passed by the learned IInd Additional Sessions Judge, Saharanpur in Sessions Trial No. 296 of 1981 (State Vs. Mangey Ram & others) under Sections 302 and 307 IPC, Police Station-Badagaon, District-Saharanpur whereby the learned Sessions Judge had convicted both the accused persons for life imprisonment under Section 302 IPC read with Section 34 IPC. 3. In a nutshell, the prosecution case is that Atar Singh had three sons, namely, Chamel Singh (deceased), Mangey Ram (appellant) and Rajbeer (appellant). The appellants have been charged and tried under Section 302 IPC with the allegation that on 19th July, 1981 at 10: 00 am in village Jaroda Panda, Police Station Badagoan, District-Saharanpur had committed intentional murder by causing death of Chamel Singh (son of Atar Singh and real brother of accused persons) by firing at him with a revolver. Atar Singh who is the father of the accused persons had 30 bighas of land in his name and out of which 7 ½ bighas of land has been given to Chamel Singh (deceased). The entire cultivation was initially done by Chamel Singh and subsequently 10 bighas of land had been taken by Sri Atar Singh in the name of his other two sons, namely, Mangey Ram and Rajbeer. As per the prosecution version, Chamel Singh (deceased) wanted a share in this land and in this regard some panchayat had also taken place and out of which three bighas land has been given to Chamel Singh. The alleged panchayat took place on 27.01.1981. The decision of the panchayat had been reduced to writing vide Ex. Ka-2. Both the accused who were angry and were inimical to Chamel Singh on account of transfer of the said land in favour of deceased. The alleged panchayat took place on 27.01.1981. The decision of the panchayat had been reduced to writing vide Ex. Ka-2. Both the accused who were angry and were inimical to Chamel Singh on account of transfer of the said land in favour of deceased. The prosecution case is also taken into account that both the accused had implicated Chamel Singh in a case of robbery and another case of abducting a girl and as such Chamel Singh had been sent to jail and he was granted bail in the robbery case on 08.07.1981 and in case of abduction of a girl he was granted bail on 18.07.1981 i.e. a day before the alleged occurrence. It has also been alleged that during the period Chamel Singh was in jail, the two accused took possession over the three bighas land which had been given to Chamel Singh on the basis of the alleged panchayat on 27.01.1981. 4. As per the prosecution version, on 19.07.1981 at about 10: 00 am, Chamel Singh after taking a bath at the well was washing his dhoti with soap on the well when Mangey Ram and Rajbeer both armed with revolvers went there and fired at Chamel Singh. Chamel Singh ran towards his house just to save his life but he fell down on 'kurdi' of Atma Ram which is situated in between his house and the well. When Chamel Singh fell down his face was facing the ground. Then both of accused again fired two shots at Chamel Singh which resulted in the death of Chamel Singh on the spot. Chamel Singh's son namely Anurudh @ Pappu PW-1, his wife Smt. Shimla PW-3 both rushed to save Chamel Singh but eventually the accused threatened them to commit their murder then both stood on the other side of the road and meanwhile as per the prosecution version accused dragged the dead body of Chamel Singh and brought him on the 'kharanja' in front of their house. Thereafter, the accused persons are said to have chased Smt. Shimla and Mangey Ram is said to have fired at her and also in an attempt to commit her murder but Smt. Shimla entered the house of Babu Ram for safety and was eventually saved. Thereafter, the accused persons are said to have chased Smt. Shimla and Mangey Ram is said to have fired at her and also in an attempt to commit her murder but Smt. Shimla entered the house of Babu Ram for safety and was eventually saved. Anurudh @ Pappu immediately ran to the police station which is situated approximately 7 ½ km from the alleged place of incident and lodged the FIR Ex. Ka-I at 11: 30 am. Initially Om Prakash Saraswat, the Investigating Officer who had been SO, Badagaon PW-6 immediately come to village alongwith Anurudh and started investigation. He had recorded the statement of Anurudh and Smt. Shimla and other witnesses and inspected the site and prepared the site plan Ex. Ka-4. He also took possession of one Balti Ex.2, Dhoti Ex.3, Chappal Ex. 4, Rope Ex.5 and Soap Ex.6 from the place of occurrence and prepared Fard Ex.5 and sealed them on the spot. He has also took possession of blood stained earth from the place of occurrence i.e. the well in front of 'kurdi' of Atma Ram and the 'kharanja' in front of the house of accused in the presence of witnesses. He has also prepared inquest report Ex.Ka-10 and sealed the body of Chamel Singh and site plan was prepared. The post mortem of the body of deceased was conducted by Dr. A.K. Jain PW-5, Medical Officer, S.B.D. Hospital, Sharanpur on 20.07.1981 at about 4: 00 pm. Sri Om Prakash Saraswat, who had done the major portion of the investigation was the first Investigating Officer but subsequently investigation was transferred on 03.09.1981 and thereafter investigation has been completed by SO B.D. Jakhmola the second Investigating Officer who submitted the charge-sheet Ex.Ka-15 against the accused persons. 5. The prosecution had examined six witness in support of its case. They are Anurudh @ Pappu son of deceased PW-1, Babu Ram PW-2, Smt. Shimla PW-3 (wife of deceased), Sri Atar Singh PW-4, Dr. A.K. Jain PW-5 who had conducted post mortem, and SI Om Prakash Saraswat, PW-6 ( the initial IO). 6. Both the accused persons denied the prosecution version and made a categorical allegation that both of them had been falsely implicated in the case on account of old enmity in order to grab their land. They had also refuted the alleged meeting of panchayat regarding the property dispute. 6. Both the accused persons denied the prosecution version and made a categorical allegation that both of them had been falsely implicated in the case on account of old enmity in order to grab their land. They had also refuted the alleged meeting of panchayat regarding the property dispute. They had also made a statement that Chamel Singh (deceased) gone to jail in connection with criminal cases on account of his own misdeeds and they had no role in implicating the deceased in both the cases. It transpires from the perusal of the record that no evidence was adduced in defence. 7. The prosecution case has been supported by four eye witnesses. 8. PW-1 who is the son of Chamel Singh (deceased) at the time of occurrence he was hardly 15-16 years old boy and in his statement he had stated that he alongwith his mother were inside the courtyard of the house. After hearing a noise they came out and witnessed the occurrence. His father at that time was washing a dhoti after taking his bath when the two accused came there and fired two shots at him from a distance of 2-3 paces only. He had submitted that he was not in a position to state whether one shot gun had hit him or both the shots and, thereafter, his father ran towards the house and fell down on the 'kurdi' of Atma Ram in between the house and the well, when the two accused came there and again fired two shots at his father. He was at that time lying down on the 'kurdi' of Atma Ram facing the ground. The witness and his mother Smt. Shimla PW-3 reached at the kurdi of Atma Ram by that time when accused threatened to commit their murder also drove them away and, thereafter, the two accused lifted and dragged the dead body of Chamel Singh and placed it on the 'kharanja' in front of their house. The witness Anurudh @ Pappu went to police station through the fields and lodged the report Ex.Ka-1 and returned to the village alongwith the Sub-Inspector who started investigation. The witness Anurudh @ Pappu went to police station through the fields and lodged the report Ex.Ka-1 and returned to the village alongwith the Sub-Inspector who started investigation. The statement of Smt. Shimla shows that after keeping the dead body on the 'kurdi' of Atma Ram, the accused persons ran after her with a revolver in their hands and she entered into the house of Babu Ram and Mangey Ram fired at the house of Babu Ram also. Her evidence shows that Babu Ram's wife drove her away saying that she would also have killed them. Thereafter she entered the house of Pala after passing through the school and saved herself. The accused persons had chased her and had also fired at her in an attempt to kill her. The two witnesses namely Babu Ram PW-2 and Atar Singh PW-4 have also fully supported the scene of occurrence. As per their own statement, they were coming to the house of Atar Singh (father of deceased) for settling the dispute between Chamel Singh and his brothers on the request of Atar Singh (father of the deceased). When they reached in front of the house of Chamel Singh they saw the occurrence which has been shown in the site plan Ex.K-4. They have narrated the occurrence and corroborated the statement of PW-1 and PW-3 in its entirety. 9. As per their evidence, the two accused who were armed with revolvers reached the well where Chamel Singh was washing his dhoti, both fired gun shots at Chamel Singh with their revolvers from a distance of 6 to 7 paces. Chamel Singh fell down on the 'kurdi' of Atma Ram and the two accused went there and again fired two shots at Chamel Singh and as per version of Babu Ram, it further goes to show that after placing the dead body of Chamel Singh on kharanja, the two accused persons started digging the blood stained earth and Smt. Shimla then raised a hue and cry. The two accused chased her. 10. As regards the medical evidence, the post mortem examination of the dead body of Chamel Singh had been conducted by Dr. A.K. Jain on 20.07.1981 at 4: 00 pm. He found the following ante mortem injuries on the body of the deceased: - 1. The two accused chased her. 10. As regards the medical evidence, the post mortem examination of the dead body of Chamel Singh had been conducted by Dr. A.K. Jain on 20.07.1981 at 4: 00 pm. He found the following ante mortem injuries on the body of the deceased: - 1. Circular lacerated wound ½ cm x ½ cm x mouth cavity deep on right side face 2.5 cm below right ear blackening around the wound present, fracture of mandible present. Probable wound of cavity. 2. Lacerated wound ½ cm x ½ cm x cavity deep on back of right side head 7 cm behind right ear. Blackening and charring around wound present. Right parietal bone fracture. Probable wound of entry. 3. Lacerated wound 5 cm x 3 cm x brain cavity deep on left side head 6 cm above right ear. Brain matter oozing out, probable wound of exit. 4. Lacerated wound 4 cm x 2 ½ cm on left side head 2 cm above left ear. Probable wound of exit, fracture present. Penis and testicles swollen. Penis in semi erect position. Vesicles present over body at places. 11. According to the doctor, the cause of death was shock and haemorrhage due to injuries by fire arm. 12. Sri G.S. Chaturvedi, Senior Advocate has submitted on behalf of the appellant that the medical evidence is in conflict with the ocular evidence produced by the prosecution. As per eye witnesses two gun shots were fired at deceased Chamel Singh at the well and two gun shots at 'kurdi' of Atma Ram but as per the post mortem report only two wound of entry and two wounds of exit were found on the body. Surprisingly, all the four witnesses have deposed in a similar manner that when the deceased was washing his dhoti on the well both accused had fired (two gun shots) and after receiving the injury he tried to escape and reach to his house after few steps when he fell down at the 'kurdi' of Atma Ram, accused had again fired two gun shots from a very close range. 13. 13. Sri G.S. Chaturvedi, learned Senior Advocate on behalf of the appellant has also submitted that there were grave discrepancies in the statements of the witnesses and the prosecution has failed in justifying their story as no independent witnesses had been examined, even though the alleged occurrence had taken place in broad day light and there were many independent witnesses. Only interested witnesses had been produced by the prosecution. The prosecution story is highly exaggerated and none of the witnesses of fact are wholly reliable. 14. On the other hand, Sri Dilip Kumar, learned counsel for the complainant had refuted the submissions of learned counsel for the appellants and apprised the Court that the prosecution version is fully justified and is sustainable in the present facts and circumstances, whereas all the witnesses are independent witnesses and the incident had occurred in their presence in broad day light and the prosecution story is fully justified and there is no infirmity in the investigation or trial. 15. Learned AGA for the State has also submitted in support of prosecution case that there was prompt lodging of the FIR which excludes the possibility of deliberation and consultation in the case and has fully justified the prosecution case. There is absolute corroboration to the ocular evidence adduced by the prosecution in this case, motive was very much reflected from the conduct of the accused persons and there was no likelihood of any infirmity in the fair trial. 16. From a bare perusal of the ante mortem injuries, it is apparent that in one circular lacerated wound of ½ cm x ½ cm x mouth cavity deep on the right side face 2.5 cm below right ear blackening around the wound present fracture of mandible and probably another lacerated wound of ½ cm x ½ cm x cavity deep on back of right side head 7 cm behind right ear. Blackening and charring around wound present. Right parietal bone fracture, probably wound of entry. 17. It is further highly important to mention at this stage that lacerated wound of 5 cm x 3 cm x brain cavity deep on left side of head 6 cm above right ear, brain matter oozing out, probably wound of exit and another lacerated wound of 4 cm x 2 ½ cm on left side head 2 cm above left ear, probably wound of exit. Both the entry point and exit point clearly established that the shot was fired by the assailant while running, this kind of situation can only be fortified if the stand of the prosecution was that the gun shots were fired from a lower level, then only the exit wound which was slightly above the entry point, could be caused. As per the witnesses, all of them stated that two gun shots were made on the deceased by the accused while Chamel Singh was sitting on the well to wash his dhoti. This kind of situation may also occur if Chamel Singh was sitting over some raised platform and assailants were standing nearby, then the posture of the deceased could corroborate the version of the prosecution story but so far as the other statement of the witnesses that after two gun shots the deceased tried to escape and run away to his house and after a few steps he fell down on the 'kurdi' and again two shots have been made by the assailants does not justify the witnesses' statement and ante mortem injuries, specially on the ground that after the gun shot was fired at Chamel Singh, he tried to escape and ran away to his house and in between he fell down and finally two gun shots were fired and he died on the spot. As per the prosecution version as well as the witnesses' statement it transpires that four gun shots were fired and by means of final assault which took place at the 'kurdi' of Atma Ram, Chamel Singh died. It is also contended by the eye witnesses that after the death of Chamel Singh, he had been dragged from the 'kurdi' of Atma Ram up to the kharanja which was situated in front of the accused' residence. The story also creates grave doubt as at some place the eye witnesses stated that the body of the deceased was dragged from 'kurdi' of Atma Ram up to the kharanja and another version has been given by them that instead of dragging in fact he had been lifted by both the accused persons who put the body of the deceased in front of the kharanja situated in front of their own house. This story also creates ambiguity that once if the accused finally made two shots on the deceased at the 'kurdi' of Atma Ram then there was no occasion to drag him or to lift and throw him in front of their own house which was approximately 45 paces away. It is also striking that the deceased did not have any abrasion on his body either on his back or in front, specially in the background that he did not have any clothes on the upper portion. 18. Bare perusal of the statement of the witnesses recorded under Section 161 Cr.P.C., it is apparent that the witnesses tried to escape reply of the core issue and deliberately made vague statement so that eventually some manoeuvre to get some mileage specially in justifying the two gun shots, lifting and dragging story from the 'kurdi' of Atma Ram to kharanja. Everywhere they have left some scope of manoeuvering in this regard. So far as in the post mortem report, there was no abrasion found on the body, it means that dragging of the deceased from the 'kurdi' of Atma Ram to kharanja is being ruled out and the only possibility left over was to lift the body from 'kurdi' of Atma Ram to the kharanja. The prosecution version as well as witnesses' version could not justify this stance specially what was the reason for lifting the body from 'kurdi' of Atma Ram to a considerable distant place and put the body of the deceased in front of their own house. In the present matter, so far as the post mortem injuries do not corroborate the version of the prosecution and witnesses regarding the actual occurrence and the absence of abrasions on his body also raise a serious question mark regarding the prosecution story and suggest that the occurrence did not takes place in the manner as alleged by the prosecution. Hence medical evidence on this issue is inconsistent with the testimony of all four witnesses examined in the instant case. There is also a serious discrepancy, under what circumstances it had been found that post mortem examination on the body of Chamel Singh found that penis and testicles swollen and penis is in semi erect position. Hence medical evidence on this issue is inconsistent with the testimony of all four witnesses examined in the instant case. There is also a serious discrepancy, under what circumstances it had been found that post mortem examination on the body of Chamel Singh found that penis and testicles swollen and penis is in semi erect position. In the normal circumstances, if the version of the prosecution and the witnesses are being taken as sacrosanct then it is beyond imagination that if a person is being shot dead at the well tried to escape, run few paces and again being shot and died on the spot. Alternatively, this position also suggests that incident might have taken at some other time and place. It would not suffice to the reason recorded by the Trial Court that when the deceased run away from the well towards his house had fallen on the ''kurdi' of Atma Ram and in that position his face was facing the ground. It may be that in that position his penis and testicles came in contact with some hard object causing injuries. This explaining the swelling and semi erect penis could not be taken as correct while appreciating the medical report and the manner in which the occurrence has taken place. In the present matter, the prosecution version has already failed in establishing the motive of the accused to eliminate Chamel Singh from the clan. As per their own case, their father has already given their share to Chamel Singh on the basis of some alleged panchayat. 2 ½ bigha extra land had been given to the deceased but eventually when Chamel Singh was sent to jail both the accused occupied the said extra land. In this situation there could be some annoyance to Chamel Singh against accused but not vice-versa, because both the accused had already land in their possession. The prosecution version has also utterly failed to find out other relevant cogent reasons for eliminating the deceased specially in the background that in one case of robbery, he was already implicated and released on bail. Finally on account of some abduction case had been registered against him and only just one day before he was released from jail i.e. on 18.07.1981. Finally on account of some abduction case had been registered against him and only just one day before he was released from jail i.e. on 18.07.1981. It is also been contended that the father of the deceased namely Atar Singh had talked to PW-2 and PW-4 on 18.07.1981 regarding resolving of the controversy through amicable settlement between his sons, which also creates doubt specially under the background when the deceased was released from jail while he was in confinement for considerable time could reach any how on the previous day. And on the same date, he had come and his father talked to everyone and fixed a date on 19.07.1981 (next date) as alleged by the PW-2 and PW4. In the statements of PW-2 and PW-4 it has been contended that the father of the deceased had asked them to come at the house of the deceased in the morning for resolving the property dispute. In such a situation where Chamel Singh had a criminal history, the Investigating Officer had not tried to find out the other reasons for his actual death and had taken as gospel truth, the FIR lodged by the son of the deceased. The statement of PW-2 and PW-4 also creates doubt because they were the interested parties that even though they were eye witnesses and the whole incident took place for considerable long time in front of them as per their own version, they did not try to rescue nor moved from the place even though they claim that after the two gun shots at the well they again fired upon the deceased at ''kurdi' of Atma Ram, dragged the body for a considerable long distance and put the body at kharanja in front of their house. Then again they tried to shoot at PW-3 while chasing her and they were all standing and watching the incident quietly. In the investigation, the Investigating Officer has also utterly failed even though as per the prosecution version, the incident took place in the broad day light but could not get any other eye witnesses in the matter. The evidence of Babu Ram PW-2 further shows that if placing the dead body of Chamel Singh on kharanja, two accused persons started digging the blood stained earth then Smt. Shimla raised a hue and cry. The evidence of Babu Ram PW-2 further shows that if placing the dead body of Chamel Singh on kharanja, two accused persons started digging the blood stained earth then Smt. Shimla raised a hue and cry. Thereafter, the two accused chased her and she entered Babu Ram's house also do not reflect the correct evidences and corroborate the prosecution story. 19. From the record, it transpires that Babu Ram was an interested witness inasmuch as admittedly he had appeared as a witness in the case of Ram Niwas Vs. Atar Singh (father of accused) but later on he had become friendly with Atar Singh as he got the marriage of his son settled. It is also the admitted situation that PW-1 Anurudh @ Pappu the maternal uncle of Vedo's daughter has been married to the son of Babu Ram and this match has been settled by his grand father Atar Singh. In this way, Babu Ram was indirectly related to the complainant-Anurudh. As regards to Atar Singh PW-4, it is also admitted by PW-1 that Atar Singh had stood surety for his father Chamel Singh only day before the date of occurrence in the abduction case. In this way, it is clear that PW-2 and PW-4 were highly interested and partisan witnesses. 20. In the present matter initially investigation was made by Sri O.P. Saraswat, SO, Badagaon PW-6 and subsequently the major portion of investigation had been completed by SO B.D. Jakhmola who had submitted charge-sheet against accused persons. 21. Bare perusal of the judgment and order shows that the prosecution case is not corroborated and the reliability of the eye witnesses and their truthfulness creates grave doubt. 22. We have carefully considered the arguments advanced on behalf of both the sides and also perused the judgment of the Trial Court, we are of the view that conviction and sentence awarded by the Sessions Court under Section 302 IPC has to be seen in the light of settled principle that every accused is entitled for benefit of any reasonable doubt raising from the facts and circumstances of the case. This is also well settled that the principle of extending the benefit of doubt cannot be orally accepted but should be criminally applied if certain circumstances exists and warrant the application of principle. This is also well settled that the principle of extending the benefit of doubt cannot be orally accepted but should be criminally applied if certain circumstances exists and warrant the application of principle. It is suffice to refer the judgment of Hon'ble Apex Court in the case of K. Gopal Reddy Vs. State of Andhra Pradesh (1979) 1 SCC 355 is as follows: - "If two reasonably probable and evenly balanced views of the evidence are possible, one must necessarily concede the existence of a reasonable doubt. But, fanciful and remote possibilities must be left out of account. To entitle an accused person to the benefit of a doubt arising from the possibility of a duality of views, the possible view in favour of the accused must be as nearly reasonably probable as that against him. If the preponderance of probability is all one way, a bare possibility of another view will not entitle the accused to claim the benefit of any doubt. It is, therefore, essential that any view of the evidence in favour of the accused must be reasonable even as any doubt, the benefit of which an accused person may claim, must be reasonable." The Court further observed : (SCC pp. 360-61, para 9) " 'A reasonable doubt', it has been remarked, 'does not mean some light, airy, insubstantial doubt that may flit through the minds of any of us about almost anything at some time or other; it does not mean a doubt begotten by sympathy out of reluctance to convict; it means a real doubt, a doubt founded upon reasons'. As observed by Lord Denning in Miller v. Minister of Pensions [(1947) 2 All ER 372], 'Proof beyond a reasonable doubt does not mean proof beyond a shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with the sentence 'of course it is possible but not in the least probable', the case is proved beyond reasonable doubt, but nothing short of that will suffice'. If the evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with the sentence 'of course it is possible but not in the least probable', the case is proved beyond reasonable doubt, but nothing short of that will suffice'. In Khem Karan v. State of U.P. [ (1974) 4 SCC 603 : 1974 SCC (Cri) 639 : AIR 1974 SC 1567 ], this Court observed : (SCC p. 606, para 5) 'Neither mere possibilities nor remote possibilities nor mere doubts which are not reasonable can, without danger to the administration of justice, be the foundation of the acquittal of an accused person, if there is otherwise fairly credible testimony'." 23. We are of the opinion that the evidence adduced by the prosecution to prove guilt of the accused again suffers from the infirmities as we have discussed hereinabove after carefully going through the evidence of PW-1, PW-2, PW-3, PW-4. We find that the said evidence is not credible and does not inspire confidence. Thus impugned order dated 08-11-1982 convicting the accused persons under Section 302 IPC is unsustainable and is liable to be set aside. 24. In the result, this criminal appeal is allowed and the impugned judgment and order dated 08-11-1982 passed by the learned IInd Additional Sessions Judge, Saharanpur in Sessions Trial No. 296 of 1981 (State Vs. Mangey Ram & others) under Sections 302 and 307 IPC, Police Station-Badagaon, District-Saharanpur is set aside. 25. The appellants are acquitted of the charges against them. In case the appellants are in jail, they may be released forthwith if they are not wanted in connection with any other case. Let the order and record of the case be transmitted to the lower court for compliance.