JUDGMENT Hon’ble Shashi Kant Gupta, J.—This criminal appeal arises out of the judgment and order dated 25.1.1983 passed by the IInd Additional Sessions Judge, Basti in Sessions Trial No. 76 of 1980 whereby the appellants namely Shitla Singh, Abdul Shakoor, Bhagwan Das and Shitala Prasad Kurmi were convicted and sentenced to undergo two years rigorous imprisonment under Section 148 I.P.C., seven years rigourous imprisonment under Section 307 IPC read with Section 149 IPC and imprisonment to life for offence under Section 302 read with Section 149 IPC. All the sentences were directed to run concurrently. 2. At the outset, it is relevant to mention here that during the pendency of this appeal, the Appellant No. 1 Shitla Singh and Appellant No. 2 Abdul Shakoor have died. Accordingly, vide order dated 8.5.2014, this Court has dismissed the appeal as abated as against the Appellant No. 1 Shitla Singh and Appellant No. 2 Abdul Shakoor. It is also relevant to note that during the pendency of the trial one of the accused namely Pahalwan Singh was murdered on 5.8.1982, therefore, the trial against him also had abated. 3. Now, we are proceeding to consider the present appeal in respect of the remaining appellants No. 3 and appellant No. 4 namely Bhagwan Das and Shitala Prasad Kurmi respectively. 4. The facts of the case as stated in the First Information Report by the informant Uma Shankar Pandey are that on 30.9.1979 he alongwith his relation Ram Shankar Pandey (P.W.1) had gone to petrol pump to purchase diesel. When they could not get diesel they thought of going to Harraiya to enjoy Durga Puja celebration. At about 9.00 p.m. when Uma Shankar was going alongwith Ram Shankar towards Harraiya from the petrol pump, the accused who were sitting in the hut of Asharfi followed them. The accused Shitla Singh was armed with his licensee gun and the rest of the accused were armed with country made pistols. When Uma Shankar and Ram Shankar reached in front of the saw machine of Krishna Prasad, the accused Shitla Singh and rest of the accused started firing at them. Uma Shankar luckily escaped unhurt, however, Ram Shankar sustained pellet injury at his back and fell down. When Uma Shankar and Ram Shankar reached in front of the saw machine of Krishna Prasad, the accused Shitla Singh and rest of the accused started firing at them. Uma Shankar luckily escaped unhurt, however, Ram Shankar sustained pellet injury at his back and fell down. In the meantime, Ram Naresh Dhobi, hearing the sound of the gun shot, came out from his house on the road and, in the process, was hit by fire-arm shots resulting into his death instantaneously. The informant and the witnesses Divakar Prasad, Lachhmi Prasad, Keshav Ram and others have seen the incident and have identified the accused in the torch light who were firing. 5. Uma Shankar Pandey prepared written report Ext. Ka 2 and lodged the same at P.S. Chhaoni where it was entered at Chik FIR No. 227 dated 3.9.79 at 10.15 p.m. vide Ext. Ka 5. On the basis of the said reports a case under Sections 148, 307 and 302 read with Section 149 of the I.P.C. was registered at G.D. Report No. 32 vide Ext. Ka 6. The injured Ram Shankar (P.W.1) was sent to district hospital Basti for medical examination through H.C.C.P. 131 Ram Prasan Dube, O.P. Incharge Harraiya. 6. Ram Shankar was medically examined at district hospital Basti at 11.00 p.m. by Dr R.C. Verma (P.W.8) vide injury report Ext. Ka 19 who found the following injury on his person : (i) Lacerated wound .5 cm. X .5 cm. depth could not be measured on right side back, 5 cm. below root of neck and 1 cm. from mid line Injury was fresh. Blood clot was present. No blackening or tattooing was found. Nature : The injury was kept under observation and X-ray was advised for presence of any pellet. The cause of the said injury was by some blunt object. 7. The x-ray of the injured was taken on 1.10.1979 vide X-ray plate Ext. 5. According to X-ray report, Ext. Ka 20, one small irregular radio opaque shadow was seen but according to Dr. Verma, it was only due to defect in the screen and not because of any foreign matter and opined that it could be caused by any blunt object. 8. 5. According to X-ray report, Ext. Ka 20, one small irregular radio opaque shadow was seen but according to Dr. Verma, it was only due to defect in the screen and not because of any foreign matter and opined that it could be caused by any blunt object. 8. The inquest on the dead body of Ram Naresh Dhobi was held by Sri Rajendra Pathak, the then, S.O. P.S. Chhaoni on 1.10.1979 at about 6.00 a.m. Sri Pathak sent the dead body to district mortuary alongwith the inquest report Ext. Ka 9, Naksha Nash, Exts. Ka 10 and Ka 11 and other papers Exts. Ka 12 to Ka 16. 9. The autopsy on the dead body was conducted by Dr. K.K. Tripathi (P.W. 7) on 1.10.1979 at about 3.00 p.m. According to the doctor, the approximate age of the deceased was about 40 years. The death had taken place about one day before. The body was weak built. Rigor mortis had passed off from upper limbs but was present in lower limbs. Eyes were open. Mouth closed. Abdomen was slightly distended. The doctor found following ante-mortem injuries on the dead body : (i) Gun shot wound 1 cm. x 8 cm. x chest cavity deep over the right side of the chest 8 cm. below the nipple, oval in shape. Directed medial towards left. No blackening or tattooing was found. This was wound of entry. (ii) Gun shot wound of entry 1 cm. x .8 cm x abdominal cavity deep over the right side of abdomen 5 cm. above the umbilicus, oval in shape, 2 cm. below the 10th rib directed medial leftwards. No blackening or tattooing was found. (iii) Gun shot wound of entry 1 cm. x 1 cm. x bone deep directed medially leftwards over the right thigh, 6 cm. below the right anterior superior iliac super. No blackening or tattooing. (iv) Gun shot wound (wound of exit) 1 cm. X 1 cm. x chest cavity deep over the left side 15 cm. below the anterior iliac fold. Margins were irregular and everted out. It was communicating to injury No. 1. (v) Gun shot wound (wound of exit) 1 cm. x 1 cm. x over the left side of the abdomen just below the 10th rib 20 cm. below the left nipple. Margins were irregular. No blackening or tattooing was found. 10. below the anterior iliac fold. Margins were irregular and everted out. It was communicating to injury No. 1. (v) Gun shot wound (wound of exit) 1 cm. x 1 cm. x over the left side of the abdomen just below the 10th rib 20 cm. below the left nipple. Margins were irregular. No blackening or tattooing was found. 10. On internal examination, the doctor found the pubic bone on either side to be broken under injury No. 3. One large metallic shot was removed from the skin of left thigh. This was in connection with injury No. 3. The 8th rib was broken under injury No. 1 on the right side. Pleura was punctured under injury No. 1 on either side. Right lung was punctured in the lower lobe through and through under injury No. 1. Left lung was punctured under injury No. 1 through and through in the lower lobe. Heart was empty. Chest cavity was found containing half litre of blood. Peritoneum was punctured under injury No. 2. The stomach was punctured under injury No. 2 through and through. Intestinal wall contained 8 ozs. of undigested food, rice, Dall and blood mixed. Small intestines were punctured at multiple places under injury No. 2. Liver punctured under injury No. 2 through and through. Spleen punctured under injury No. 2. Bladders was badly lacerated under injury No. 3. In the opinion of the doctor the death was caused due to shock and hemorrhage as a result of ante-mortem gun shot injuries. One sealed packet containing a large metallic shot and another sealed bundle containing one Bandi, one Langot and one Angochha were handed over to the police constable Haribans Yadav who had brought the dead body from the place of occurrence. 11. The investigation of the case was taken up by Sri Rajendra Pathak. He reached to the place of occurrence on 30.9.1979 recorded the statement of Uma Shankar Pandey and collected blood stained and simple earth from the place of occurrence. The dead body was found lying in front of the police out post. He also inspected the 5 cells Geep torch of Uma Shankar Pandey on the same date. On 1.10.79 the I.O. Prepared inquest report and sent the dead body for post-mortem examination. He inspected the torch of Diwakar Pandey on 11.1.1979 after 42 days and gave the same in his Supurdagi vide Ext. Ka 3. He also inspected the 5 cells Geep torch of Uma Shankar Pandey on the same date. On 1.10.79 the I.O. Prepared inquest report and sent the dead body for post-mortem examination. He inspected the torch of Diwakar Pandey on 11.1.1979 after 42 days and gave the same in his Supurdagi vide Ext. Ka 3. He further inspected the torch of Lachhmi Prasad on the same day i.e. 11.1.1979 after 42 days and gave the same in his Supurgugi vide Ext. Ka 4. The I.O. Inspected the place of occurrence and prepared site plan vide Ext. Ka 7. He further recorded the statements of Sheo Prasad, Diwakar Prasad, Bhagwan Dass, Lacchmi Prasad, Keshav Ram and others. On 2.10.1979 he recorded the statements of H.C. C.P. Ram Prasad Dube, O.P. Incharge Haraiya and S.I. Chandraeo Mishra, P.S. Paikolia who arrested accused Shitla Singh on 1.10.1979. On 2.10.79 he also recorded the statement of Ram Shankar Pandey. Accused Pahalwan Singh and Abdul Shakoor surrendered before the C.J.M Basti on 6.10.1979. Accused Bhagwan Dass and Shitla Prasad Kurmi surrendered before the Court of C.J.M on 5.10.1979. 12. The I.O. Sri Pathak submitted charge-sheet against the accused after completing the usual investigation on 11.10.1979 vide Ext. Ka 17. The accused were charged under Sections 148, 307 IPC read with Section 149 IPC and Section 302 IPC read with Section 149 I.P.C. 13. The prosecution examined Ram Shankar Pandey (P.W.1) Diwakar (P.W.2) Lachhmi Prasad (P.W.3) as witnesses to the actual commission of the alleged offences. It further examined H.C. C.P. 51 Bodh Nath Tripathi as P.W. 4 who entered the FIR and registered the case at G.D. Report No. 32. He further proved the Fard Ext. Ka 1, dated 10.10.1979 (after 11 days of the incident) with regard to the deposit of blood stained Kurta and Banyan by Ram Shankar Pandey at P.S. Chhaoni. P.W. 5 S.I. Rajendra Pathak is the I.O. Of the case. He carried out inquest on the dead body, prepared site plan, recorded the statements of witnesses and submitted charge-sheet. P.W.6 Sri Tirath Raj Mishra is a X-ray technician of district hospital Basti. He attended the Court on 22.11.1982 alongwith the X-ray plat No. 6703 dated 1.10.1979. P.W. 7 Dr. K.K. Tripathi conducted the post-mortem examination on the dead body of Ram Naresh Dhobi on 1.10.1979 vide Ext. Ka 18. P.W. 8 Dr. P.W.6 Sri Tirath Raj Mishra is a X-ray technician of district hospital Basti. He attended the Court on 22.11.1982 alongwith the X-ray plat No. 6703 dated 1.10.1979. P.W. 7 Dr. K.K. Tripathi conducted the post-mortem examination on the dead body of Ram Naresh Dhobi on 1.10.1979 vide Ext. Ka 18. P.W. 8 Dr. R.C. Verma who had medically examined Ram Shankar on 30.9.1979 at about 11.00 p.m. at district hospital Basti and had further taken X-ray of his injury and had prepared X-ray report Ext. Ka 20. The prosecution has further tendered the written report, FIR, G.D. Report, site plan, seizer memos, injury report and post-mortem report in evidence. 14. The prosecution has, inter alia, relied upon the oral testimony of P.W.1 Rama Shankar Pandey, P.W.2 Diwakar and P.W.3 Lachhmi Prasad. The informant Uma Shankar died during the pendency of the trial. 15. P.W. 1 Rama Shankar Pandey in his examination in chief stated that on 30.9.1979 he alongwith Uma Shankar Pandey was going towards Harriya Bazar from petrol pump. When they reached near the saw machine of one Krishna Prasad, accused Shitla Prasad Kurmi, Bhagwan Dass, Shitla Singh, Abdul Shakoor and Pahalwan Singh started firing at them with their respective weapons. He further stated that Shitla Singh was armed with a single barreled gun and the rest were armed with country made pistols. Uma Shankar escaped unhurt, however, shot fired by the said accused hit Ram Shankar at his back. In the meantime, hearing the sound of gun shots one Ram Naresh Dhobi came out from his house on the road and in the process he was hit by gun shots fired by the accused causing his instant death at the spot. It was further stated that it was moon lit night. The deceased complainant Uma Shankar Pandey was having a five cell torch and the light was emanating from the lanterns and gases burning in the nearby shops which enabled him to identify the accused in the said light. It was further stated that after firing at them the accused fled away towards east. In his cross-examination the witness admitted that the sister of his father is married to Gauri Shankar, the brother of Uma Shankar. He has further admitted that he was a co-accused with Uma Shankar in the murder of one Achhaibar. It was further stated that after firing at them the accused fled away towards east. In his cross-examination the witness admitted that the sister of his father is married to Gauri Shankar, the brother of Uma Shankar. He has further admitted that he was a co-accused with Uma Shankar in the murder of one Achhaibar. It was further stated that he and Uma Shankar had gone to petrol pump to purchase diesel in the evening of 30.9.1979 when they could not get diesel, they decided to go to Harraiya bazar to enjoy Durga Puja celebrations instead of going back to their home. He further stated that the accused had challenged them from a distance of 10-12 steps and after the death of Ram Naresh, the accused person had fled away and did not chase Uma Shankar. He further stated that he went Harraiya Government Hospital for his treatment but the doctor referred him to district hospital, Basti and Harraiya police chauki was very nearby to the place of incident. One police personnel from Harraiya Chauki had accompanied him to District Hospital, Basti where he was admitted and X-ray was conducted on him. He further admitted that he is co-accused in few criminal cases alongwith Uma Shankar. 16. P.W.2 Diwakar has stated that at about 9.00 pm. in the night he and one Sheo Prasasd were present on the south east of the road near saw machine of Krishna Prasad. They saw accused Shitla Singh, Pahawlan Singh, Abdul Shakoor, Bhagwan Dass and Shitla Prasad Kurmi firing at Uma Shankar and Ram Shankar with a single barrel gun and the rest of the accused were armed with country made pistols. He further stated that Umashankar escaped unhurt, however, a fire made by the accused hit at the back of Rama Shankar and he fell down on the ground. P.W. 2 further stated that in the mean time one Ram Naresh Dhobi also came out from his house and the shots fired by the accused aiming towards Uma Shankar hit Ram Naresh and he fell down and died at the spot. He further stated that it was moon lit night and he had a three cells torch in his hand he had identified the accused in the light of the torch and the light emanating from the lanterns and gases from the nearby shops. He further stated that it was moon lit night and he had a three cells torch in his hand he had identified the accused in the light of the torch and the light emanating from the lanterns and gases from the nearby shops. In his cross-examination he denied to be the Pattidar of Uma Shankar. However, he admitted that Uma Shankar is his brother on account of being a resident of the same village. The witness admitted that he was co-accused with Uma Shankar in murder case of one Lalta which was registered at case crime No. 249A of 1979-80. The witness has further stated that he had also gone to petrol pump to purchase diesel. Uma Shankar and Ram Shankar were also present there but he did not ask them whether they could get the diesel or not. He kept on standing in queue till 8.30 p.m. Uma Shankar and Ram Shankar had left the petrol pump about twenty minutes prior to him. Place of incidence was 2 ½ furlong from the petrol pump. At the time of occurrence he was on the eastern southern side of the road. The accused were on the northern side of the road and P.W.1 Rama Shankar and the deceased complainant Uma Shankar were also in the northern side of the road and were 8 hands ahead of the accused and the accused persons did not chase Uma Shankar after killing Ram Naresh Dhobi. 17. P.W.3, Lachhmi Prasad has stated that on the date and time of occurrence he had gone to Harraiya Bazar alongwith Keshav Ram. From there he was going towards petrol pump from Harraiya Bazar to have his food. The witness has further stated that when he reached near police out post Haraiya (which is about 30 steps from the place of incident) he saw Shitla Singh armed with a single barrel gun and co-accused Pahalwan Singh, Abdul Shakoor, Bhagwan Dass and Shitla Prasad Kurmi with country made pistols firing at Rama Shankar and Uma Shankar with their respective weapons. Uma Shankar escaped unhurt, however, a shot hit at the back of Ram Shankar and he fell down on the ground. Uma Shankar ran away from the scene when the accused persons were firing. Uma Shankar escaped unhurt, however, a shot hit at the back of Ram Shankar and he fell down on the ground. Uma Shankar ran away from the scene when the accused persons were firing. He further stated that one Ram Naresh Dhobi who had come out of his house after hearing the sound of the gun shots, received a gun shot injury, as a result of which he fell down and died instantly at the spot. The witness has further stated that he identified the accused in the light of torch and the light emanating from lantern and gases from nearby shops. He has further stated that he had come to see Durga Puja celebrations at Harraiya which was going on for the last 3-4 days. He has further stated that he was going from west to east and was walking on the southern Patri and Uma Shankar was 5-6 steps in the north from him. The accused persons chased him for about 5-6 steps while firing upon him. 18. Accused Shitla Singh denied that there was any enmity between him and Uma Shanker Pandey. He has further denied any proceedings under Sections 107 Cr.P.C. Pending between him and Uma Shankar Pandey in the Court of S.D.M. Harraiya. He admitted that the complainant Uma Shanker was later on murdered. The accused has further alleged that one Ram Pyare and Awadh Bihari Singh, residents of village Ghazipur, P.S. Paikolia, District Basti were murdered in 1972. The deceased complainant Uma Shankar and others were tried for the said murders. He was doing pairvi in the said case upto Supreme Court against Uma Shankar and others. The said deceased were his relations and therefore Uma Shanker falsely implicated him in this case. The accused has filed a number of papers vide Ext. Kha 2 to Kha 10 in his defence. Accused Shakoor has also denied the charge. He has also denied any previous enmity with the deceased complainant Uma Shankar. Accused Bhagwan Dass has also denied the charge. He has further denied any previous enmity with Uma Shanker and Ram Shankar. The accused has alleged that Makardhwaj was his father. The deceased complainant Uma Shankar Pandey had obtained registered sale-deed dated 7.8.1979 from him by practicing fraud, misrepresentation and coercion. His father had filed a suit for cancellation of the said deed. He has further denied any previous enmity with Uma Shanker and Ram Shankar. The accused has alleged that Makardhwaj was his father. The deceased complainant Uma Shankar Pandey had obtained registered sale-deed dated 7.8.1979 from him by practicing fraud, misrepresentation and coercion. His father had filed a suit for cancellation of the said deed. The accused alleged that Uma Shankar Pandey falsely implicated him on that account. Accused Shitla Prasad Kurmi also denied the charge. He stated that accused Bhagwan Dass was his brother-in-law. He was doing Pairvi on his behalf in the Civil Suit No. 302 of 1978, Makardhwaj v. Uma Shankar and others, pending in the Court of V. Additional Munsif Basti due to which the complainant Uma Shankar Pandey falsely implicated him in this case. 19. Learned counsel for the accused appellants has contented that all the witnesses namely Rama Shankar Pandey and Diwarkar were closely related with Uma shankar. They were inimical to the accused and, therefore, their statements should not be credited. He further submitted that no independent witness of locality has been examined and this fact itself infuses a doubt with regard to authenticity of the prosecution case. He further referred to the statements of P.W. 1 Rama Shankar Pandey, P.W. 2 Diwakar and P.W. 3 Lachhmi Prasad in which they have clearly admitted that Durga Puja celebration were going on in Harraiya town and several persons were going on the road from one side to other side. Learned counsel for the applicants further submitted there are houses and shops of independent persons near the place of occurrence, therefore, the occurrence is expected to have been witnessed by the independent witnesses and their non-examination creates a doubt with regard to the truthfulness of the version given by the prosecution witnesses. He further pointed out a number of contradictions and discrepancies in the statement of the prosecution witnesses. He further submitted that P.W. 1 Rama Shankar Pandey in his cross-examination stated that he alongwith Uma Shankar Pandey came to petrol pump at about 6 p.m. in the evening. He has further stated that he and Uma Shankar Pandey stayed there up to 7 p.m. He further submitted that P.W. 2 Diwakar Pandey in his cross-examination stated that he had come to petrol pump at 10.30 a.m. and Uma Shankar was already present there. This fact clearly contradicts the statement of P.W. 1 Ram Shankar Pandey. He has further stated that he and Uma Shankar Pandey stayed there up to 7 p.m. He further submitted that P.W. 2 Diwakar Pandey in his cross-examination stated that he had come to petrol pump at 10.30 a.m. and Uma Shankar was already present there. This fact clearly contradicts the statement of P.W. 1 Ram Shankar Pandey. He further submitted that P.W. 1 Ram Shankar Pandey further stated that the accused fled away after Ram Naresh was killed and they did not chase Uma Shankar, however, P.W. 2 Diwakar in his cross-examination stated that Uma Shankar was not chased by the accused, however, P.W. 3 Lachhmi Prasad has stated that Uma Shankar was chased by the accused persons while they were firing. According to the site plan, Ext. Ka 7, the place of falling down of Ram Shankar is shown on the northern side of he road. P.W. 2 Diwakar has stated that the accused appellants were on the northern Patri and Rama Shankar and Uma Shankar were ahead of the accused appellants. P.W. 3 Lachhmi Prasad has stated that the shot were being fired at the northern Patri on the road and he was on the southern Patri. On the basis of the aforesaid discrepancies and contradictions, the learned counsel for the accused appellants has contended that the statements of the prosecution witnesses are liable to be rejected outrightly. It is further submitted that the medical evidence was in conflict with the ocular testimony given by the prosecution witnesses. In this connection, the learned counsel for the accused appellants has referred to injury report Ext. Ka 19. According to the prosecution Ram Shankar P.W. 1 suffered a gun shot injury at his back, however, according to the injury report the injury was caused by some blunt object. The prosecution examined the doctor who prepared the said injury report. P.W. 8 Dr. R.C. Verma in his examination in chief stated that the injury was caused by some blunt object. Dr. Verma had X-rayed the injury at the district hospital Basti. On the basis of the X-ray plate, Ext. 5, he reported that one small irregular radio opaque shadow was seen in the wound. He pointed out that this shadow appears to have come on account of some defect in the screen. 20. Dr. Verma had X-rayed the injury at the district hospital Basti. On the basis of the X-ray plate, Ext. 5, he reported that one small irregular radio opaque shadow was seen in the wound. He pointed out that this shadow appears to have come on account of some defect in the screen. 20. Learned counsel for the appellants further argued that the prosecution has not disclosed as to how the five accused belonging to different places and villages converged at Harraiya to mount the attack on Uma Shankar and P.W. 1 Rama Shankar. The learned counsel for the appellants has submitted that the accused Shitla Singh belongs to Mahadeva which situates at a distance of eight miles from Harriya. He has further referred to the statement of P.W. 1 Rama Shankar who has stated that the other accused Bhagwan Dass belongs to Mahuapar which situates at a distance of three miles from Harriaya. Similarly Pahalwan Singh Abdul Shakoor also belongs to Mahuapar. Accused Shitla Pradad Kurmi belongs to village Kataiya which situates at a distance of 12 miles from Harraiya. The learned counsel has submitted that all the accused could not have collected on a short information without having previous information that Uma Shankar is going to witness Durga Puja celebration or to bring diesel from the petrol pump of Harraiya. He further submitted that there is nothing on record which may show that the accused appellants had any previous knowledge about the coming of Uma Shankar to Harraiya to take the diesel or to witness Durga Puja celebration. He has further submitted that the circumstance clearly creates serious doubts about the truthfulness of the prosecution case. He further referred to the statement of P.W. 1 to show that FIR could not have been filed at 10.15 p.m. as P.W. 1 has stated that the report was written by Uma Shankar under his signature in the hospital. P.W. 1 was admitted in the hospital at 11 p.m. on the day of incident. 21. Per contra, learned AGA Sri Rajiv Gupta stated that the said First Information Report gives the graphic narration of the incident and clearly highlights the manner in which the incident has taken place in which P.W. 1 sustained fire-arm injury and one Ram Naresh Dhobi was done to death. 21. Per contra, learned AGA Sri Rajiv Gupta stated that the said First Information Report gives the graphic narration of the incident and clearly highlights the manner in which the incident has taken place in which P.W. 1 sustained fire-arm injury and one Ram Naresh Dhobi was done to death. He further submitted that Rapat was originally written by Uma Shankar and the Rapat which is on record should only be taken into consideration and the material which is not on record cannot be taken into consideration. He further submitted that the quantity of 200 or 20 liter diesel/petrol is a little exaggeration in the statement of Pws which cannot be given much importance. He further submitted that P.W. 1, P.W. 2 and P.W. 3 are natural witnesses and there presence on the spot was due to Durga Puja. He further submitted that Ram Shankar who was injured witness was brought by two persons including head constable. He further submitted that it is not mandatory for the police constable first to obtain majrubi chitti and then go to the hospital. He further submitted that it was the natural conduct of a police/of any human being to take the injured immediately to the hospital as such first, they took him to PHC Harraiya and thereafter the injured was sent to district hospital for medical treatment. He further submitted that the injury sustained by the Ram Shankar Pandey is a fire-arm injury which is corroborated by the evidence available on record. He further submitted that son of the deceased Ram Naresh Dhobi went to hospital to know as to whether any First Information Report with regard to alleged incident was lodged or not. He further submitted that ocular evidence will prevail over doctor’s testimony and documentary evidence. He further submitted that Ram Shankar, P.W. 1 was seriously injured and cannot be said that the injury was superficial or self inflicted. He further submitted that the injury sustained by him was of serious in nature on account of which PHC Haraiya referred him to district hospital, Basti for better treatment. He further submitted that there is no probability to leave the real assailants and implicated some other person. He further submitted that all the witnesses are the resident within the periphery of the place of incident and they can very well reach at the place of occurrence within the short span of time. He further submitted that there is no probability to leave the real assailants and implicated some other person. He further submitted that all the witnesses are the resident within the periphery of the place of incident and they can very well reach at the place of occurrence within the short span of time. He further submitted that contention of the defense counsel is not sustainable and is liable to be discarded. The prosecution by placing the implicit reliance on the evidence of PW-1 has proved its case beyond all reasonable doubt against the appellants which is just proper and legal and do not call for any interference by this Hon’ble Court. He further submitted that from the evidence available on record, it is clearly established that all 3 witnesses i.e. PW-1, PW-2 and PW-3 have fully supported the prosecution story and the testimony of PW-1 corroborates the prosecution story. 22. Heard Sri V.P. Srivastava, Sri Rajul Bhargawa, learned Senior Counsel appearing on behalf of the appellants, Sri Rajiv Gupta, learned AGA and perused the material available on record. 23. According to the prosecution, Makardhwaj was the father of accused Bhagwan Dass. It was alleged that Uma Shankar Pandey (now deceased) had obtained a registered sale-deed dated 7.8.1978 in respect of agricultural and grove land belonging to Makardhwaj. Makardhwaj, therefore, filed O.S. No. 302 of 1978, in the Court of Munsif Basti for cancellation of the said deed, wherein he had alleged that the sale dead was obtained by practicing fraud, misrepresentation and coercion by Uma Shankar Pandey. The suit was pending disposal. On account of the said fact there was enmity between Bhagwan Dass and Shitla Kurmi on the one hand and Uma Shankar Pandey on the other. According to prosecution, accused Shitla Singh, deceased Pahalwan Singh and Abdul, Shakoor were helping Bhagwan Dass and they were intending to do away with the life of Uma Shankar Pandey. Uma Shankar Pandey had, therefore, lodged reports at P.S. Paikolia as a result thereof the police launched the criminal proceedings under Sections 107/116 Cr.P.C. against both of the parties which were pending before the S.D.M. It is not disputed that Uma Shankar Pandey was a history sheeter and several criminal cases were pending against him and the parties were daggers drawn. Record further shows that the witnesses of fact are closely connected with first informant Uma Shankar. 24. Record further shows that the witnesses of fact are closely connected with first informant Uma Shankar. 24. Learned counsel for the appellants has submitted that neither informant Uma Shankar Pandey nor Ram Shankar Pandey, P.W. 1 were present on the spot. He further submitted that false, fabricated and unbelievable story has been set up by the prosecution. Learned counsel for the appellant has referred to the injury report of P.W. 1, Ram Shankar who was examined at District Hospital, Basti on 30.9.1979 at 11 a.m. The injury report shows that he was brought on 30.9.1979 by one Ramchandra Pandey son of Braj Mathur and Ram Parsan Dubey Head Constable outpost Harraiya P/S Chavani outpost Basti but they were not examined as witnesses by the prosecution. According to P.W. 1, Ram Shankar Pandey, after the incident, firstly he was taken to Primary Health Center at Harraiya where after the doctor in view of his serious injuries, referred him to the District Hospital, Basti. 25. There is no documentary evidence of any nature to show that he was ever taken to Harraiya hospital where from he was referred to District Hospital, Basti. No proof from the hospital Harraiya was produced either to show that he was examined or referred to District Hospital, Basti due to his serious injury. He was admitted at 11 p.m. The injury report shows that Ram Shankar Pandey, P.W. 1 sustained following injury; (i) Lacerated wound 0.5 cm. X 0.5 cm. depth could not be measured on right side back 5 cm. below root of neck and 1 cm. from mid line. Injury was fresh, blood clot was present. No blackening or tattooing was found. (ii) Nature : the injury was kept under observation and X-ray was advised for presence of any pellet. (iii) Cause - By some blunt object. (iv) Duration - fresh. 26. Dr R.C. Verma (P.W.8), Senior Radiologist, Sadar Hospital, Faizabad was examined to prove the X-ray report of informant Ram Shankar. He has stated in his examination in chief, inter alia, that there was no blackening and tattooing and the injuries appeared to have been caused by blunt object. He further stated that one small irregular radio opaque shadow was found in the X-ray, however, he deposed that it was due to the defect in the machine, and no mark of any pellet was found in the X-ray report. He further stated that one small irregular radio opaque shadow was found in the X-ray, however, he deposed that it was due to the defect in the machine, and no mark of any pellet was found in the X-ray report. Even in his cross-examination, he has stated that in the X-ray report, no foreign matter was found. He further stated that the nature of the injury shows that it could have been inflicted by any blunt object. The extract of the cross-examination of Dr. R.C. Verma, P.W. 8 reads as under; ^^3- jke 'kadj dh pksV bl dimension ds fdlh blunt object ls Hkh vk ldrk gSA ,Dl js esa tks vikj n'khZ Nk;k tks feyh Fkh mlls pksV jke 'kadj ls dksbZ lEcU/k ugha feyk blfy, nksokjk ,Dl js djus dh vko';drk ugha gqbZA vkSj tks vikj n'khZ Nk;k gS og Li"V :i ls Ldzhu dh [kjkch ls gSA vkSj fdlh foreign matter ds ukrs ugha gSA pksV dh vo/kh esa 6 ?kaVs ls vf/kd ugha gks ldrhA** 27. According to P.W. 1, he was referred by the local hospital at Haraiya to the District Hospital, Basti where he was admitted and his medical examination was conducted. However, as per the testimony of the doctor R. C. Verma, P.W. 8, no such pellet was found and it was opined by him that injury might have been caused by some blunt object. It has also come on record that Haraiya police out post maintains a G.D. and it situates just 30-40 paces away from the place of incident and despite the incident having occurred in the near vicinity of police out post at Haraiya, no entry whatsoever was made in the G.D. of that police chauki. It is also pertinent to note that head constable from Haraiya out post had accompanied the injured Ram Shankar Pandey, P.W. 1 to District Hospital, Basti but neither any entry was made in G.D. at police outpost Haraiya nor any Chitthi Mazroobi was obtained or Ram Parsan Dubey, Head Constable outpost Harraiya P/S Chavani outpost Basti was produced before the Court for recording his evidence. There is nothing on record to show that the injured Ram Shankar Pandey, P.W. 1 was ever taken to the local hospital at Harraiya for medical examination where from he was allegedly referred to the district hospital, Basti. There is nothing on record to show that the injured Ram Shankar Pandey, P.W. 1 was ever taken to the local hospital at Harraiya for medical examination where from he was allegedly referred to the district hospital, Basti. As per the medical report and the testimony of the doctor R.C. Verma, the injured Ram Shankar Pandey, P.W. 1 had not received any gun shot injury. Thus, the story that the informant sustained gun shot injury and was initially taken to local hospital at Harraiya set up by the prosecution suffers from serious infirmity which goes to the root of the matter and shake the basic version of the prosecution witnesses. The trial Court has completely misread and misinterpreted the vital medical evidence as well as the testimony of P.W. 8 Dr. R.C. Verma wherein he has asserted injury was caused by any blunt object and opaque shadow was due to screen defect of X-ray machine and not becase of any foreign matter. Therefore, in the circumstances, the contention of the learned counsel for the appellants appears to be plausible and the possibility cannot be ruled out that the P.W. 1 Ram Shankar sustained the alleged injury on being fallen on a hard substances or could be self inflicted. 28. There is yet another aspect of the matter which goes to the root of the matter and has escaped the notice of the trial Court. According to medical report dated 30.9.1979, injured Ram Shankar Pandey, P.W. 1 was admitted in the district hospital, Basti at 11 p.m. on 30.9.1979. 28. There is yet another aspect of the matter which goes to the root of the matter and has escaped the notice of the trial Court. According to medical report dated 30.9.1979, injured Ram Shankar Pandey, P.W. 1 was admitted in the district hospital, Basti at 11 p.m. on 30.9.1979. The injured Ram Shankar Pandey, P.W. 1 in paragraphs 16-17 of his testimony, inter alia, has stated as follows; ^^16- gjS;k ds MkDVj us tokc ns fn;k vkSj dgk fd oLrh ys tkvksaA pwWafd esjh gkyr xaHkhj FkhA rgjhj vLirky esa fy[kh xbZA mek 'kadj us rgjhj fy[kh eSaus nLr[kr cuk;kA jke uj'ks ds ?kj ds ifjokj okys Hkh vLirky esa vk;sA 10,12 cts ds djhc og lc Lirky esa vk;sA mek 'kadj jke ujs'k ds yMdksa dks ysdj vLirky esa vk;sA yM+ds cPps jke ujs'k ds jks jgs FksA gjS;k ds Lirky ds jftLVj esa esjh dksbZ vken dk bUnzkt ugha gSA iqfyl eq>s thi ls cLrh xbZA esjs lkFk jkepUnz x;s Fks ysfdu eSa mudks ugha crk;k FkkA os iqfyl ds vkneh ugha gSaA iqfyl }kjk esjh dksbZ et:oh fpB~Bh ugha Fkh eq>s vLirky esa jke pUnj ugha ys x;s Fks cfYd flikgh ys x;s Fks jke pUnj ikUMs ekStk gkgh ds gSaA eSa oLrh vkdj isV~ksy ys x;k FkkA lqUu djds esjs pksV ls fudkyk gksxk yswfdu esjs pksV dk ,Dljs gqvk FkkA 17- ^^tgka eq>s pksV yxh Fkh ogkWa vkl ikl dksbZ gksVy ;k Hkkstuky; ugha gSA Hkkstuky; tgkWa eq>s pksV yxh mlls 2 QykZax ifpNe gSaA ;g dguk xyr gS fd eSaus dksbZ ?kVuk ugha ns[kh vkSj mek 'kadj ds dkj.k >wBh xokgh ns jgk gwWaA ;g Hkh xyr gS fd jiV ij esjh nLr[kr ugha gSA bDt d&2 ij esjs nLr[kr ugha gSA bDt d&1 ij esj¢ nLr[kr gSaA Lirky esa ?kVuk ds ckjs esa rgjhj fy[kh xbZ FkhA mek 'kadj us fy[kk eSaus ?kVukLFky crk;k Fkk mek 'kadj mls ysdj Fkkus x;sA rgjhj tks fy[kh xbZ vLirky esa eq>s i<+dj lquk Hkh fn;k x;k FkkA bDt d&2 og fjiksVZ ugha gS ftl ij esjh nLr[kr gS vkSj eSaus ?kVuk ds ckjs esa mek 'kadj ls fy[kk;k FkkA** 29. From the perusal of the aforesaid statement of the Ram Shankar Pandey, P.W. 1, it transpires that some report was prepared on his instructions by eye-witness Uma Shankar in the hospital under his signature and thereafter the said report was read over to him. From the perusal of the aforesaid statement of the Ram Shankar Pandey, P.W. 1, it transpires that some report was prepared on his instructions by eye-witness Uma Shankar in the hospital under his signature and thereafter the said report was read over to him. However, the said written report was not submitted before the concerned police station for the purpose of registration of the FIR but some different report was prepared by the eye-witness Uma Shankar Pandey under his signature, as such, the earlier written report prepared under signature of Ram Shankar Pandey, P.W. 1 was replaced by another written report by Uma Shankar. It is also pertinent to note that FIR was lodged at 10.15 p.m. on 30.9.1979 but the statement of P.W. 1 shows that the written report was prepared by Uma Shankar at his instructions under his signature after he was admitted in the hospital at 11 p.m. (on the date of incident) i.e. after more than 45 minutes of the lodging of the alleged FIR Ext. Ka 2. However, the FIR Ext. Ka 2 shows that the FIR was registered at 10.15 p.m. on the date of the incident, as such, there is material contradiction in the statement of the star witness P.W. 1 and in lodging of the FIR by Uma Shankar at 10.15 p.m. particularly when Uma Shankar was admittedly present in the hospital alongwith Ram Shankar at 11 p.m. and writing report on the instruction and signature of P.W. 1. Thus the question arises as to how the FIR can be registered at the instance of Uma Shankar at 10.15 p.m. at the police station Chavani (Cantt.), district, Basti which was far away from the hospital when the informant Uma Shankar was himself present in the hospital writing the report on the instructions of P.W. 1 who appended his signature thereon and the report was also read over to him. This facts clearly raises serious doubt about the authenticity of the FIR lodged at 10.15 p.m. and makes serious dent on the prosecution story. 30. Prosecution has not been able to give any plausible explanation for registration of the FIR at 10.15 p.m. when according to P.W. 1, Ram Shankar, written report was prepared and read over to him in the hospital after 11 p.m. by Uma Shankar on his instructions containing his signature. 30. Prosecution has not been able to give any plausible explanation for registration of the FIR at 10.15 p.m. when according to P.W. 1, Ram Shankar, written report was prepared and read over to him in the hospital after 11 p.m. by Uma Shankar on his instructions containing his signature. Learned counsel for the appellants on the basis of aforesaid facts has vehemently submitted that the FIR is ante-timed and fabricated, and was brought into existence long after the occurrence, therefore, the entire prosecution story would be rendered suspicious and it gives rise to an inference that there was every chance of putting forth a concocted version as a result of consultation and deliberation, and the investigation is not fair and forthright, thus, it completely knocks the bottom out of the prosecution’s case regarding the circumstances in which the FIR was lodged. It may also be noted that the accused persons who were allegedly armed with deadly weapons would not have spared Uma Shankar and let him escape unhurt. 31. The Apex Court in the case of Marudanal Augusti v. State of Kerala, 1980 SCC (Cri) 985 wherein it has been held that once the F.I.R. is held to be fabricated or brought into existence long after the occurrence, the entire prosecution case would collapse. I find substance in the statement of the learned counsel for the appellants and the authority relied upon by the learned counsel for the appellants which clearly supports his submission that the Court below has committed grave error in ignoring the aforesaid vital aspect which goes to the root of the prosecution case. 32. Learned counsel for the appellants further submitted that the provisions of Section 157 CrPC has not been complied with as special report was not sent by the concerned police station forthwith as provided under Section 157 CrPC but was sent after a delay of two days. I find substance in the argument and delay in dispatching the special report under Section 157 CrPC casts cloud on the credibility of the prosecution story. Admittedly, there was long drawn enmity between the two sides. The witnesses were the co-accused in the criminal cases pending against the informant. Ram Shankar Pandey, P.W. 1 was his close relative and was residing with him. 33. Admittedly, there was long drawn enmity between the two sides. The witnesses were the co-accused in the criminal cases pending against the informant. Ram Shankar Pandey, P.W. 1 was his close relative and was residing with him. 33. The next point which requires consideration is that according to P.W. 1 on the fateful day, Uma Shankar and P.W. 1 Ram Shankar had gone to petrol pump to purchase diesel on a rickshaw carrying a drum having capacity of 200 liters. However, when they could not get the diesel on petrol pump, they decided to see Durga Puja celebration at Harriaya which was around three furlong from the petrol pump. Therefore, instead of going back home they both proceeded at 7 p.m. for Harraiya from the petrol pump and reached there at around 9 p.m. after nearly two hours. The distance of three furlong (nearly 600 meters) from petrol pump to Harriya Bazar could be easily covered in a short time particularly when it was not their case that they had stopped anywhere between petrol pump and Harraiya Bazar. This is yet another circumstance which shrouds the prosecution story. 34. There is another aspect of the matter which requires to be taken note of. The prosecution has not explained as to how the accused-appellants came to know that Ram Shankar Pandey, P.W. 1 and Uma Shankar Pandey would be coming to Harriya market from the petrol pump at 9 p.m. because according to P.W. 1 when they could not get diesel from petrol pump, they decided at the last moment to go to Harraiya market to enjoy Durga Puja celebration. Record further shows that when they had started from their home towards the petrol pump, they had no intention of going to Harraiya Bazar. Had there been any intention to kill Uma Shankar Pandey, then the accused persons would have definitely chased him and killed him on the way before their reaching Harraiya Kasba (petrol pump was situated on highway of Faizabad-Basti road) and not at Harriya Bazar which was a crowded public place due to Durga Puja festival and situated near the police outpost. It is notable that the police Harraiya Chauki was, according to the prosecution, was just around 30 steps away from the place of the incident and it is beyond imagination and most unbelievable that the accused would have attempted to kill the informant side just under the very nose of the police chauki instead of making any attempt near the petrol pump when they were proceeding on foot to Harraiya bazar from the petrol pump. 35. It is also important to note that all the accused were belonging to different village situated far away from the place of the incident and they could not have collected on any short information without having a previous information that Uma Shankar is coming to Harraiya to see Durga Puja or to bring diesel from the petrol pump at Harraiya and there is nothing on record to indicate that the accused appellants had any previous knowledge about the coming of Uma Shankar to Harraiya to take diesel or to witness durga Puja celebrations. It is also notable that P.W. 1 in his testimony has admitted that in his statement recorded under Section 161 CrPC to the Investigating Officer has not stated that they had gone to petrol pump to purchase diesel. This apart, perusal of the record, further shows that they had stated that they carried a drum of two hundred liters capacity on a rickshaw. We are not convinced that a drum having 200 liters capacity can be carried on rickshaw with two persons sitting on it. This further creates doubt that they had gone to petrol pump. 36. It is further relevant to refer to paragraph 16 of the testimony of P.W. 1 Ram Shankar Pandey wherein he has submitted that family members including children of the deceased Ram Naresh Dhobi, who was killed in the present incident, had visited him in the hospital in the night at around 11 o’ clock on 30.9.1979 at hospital which was situated at a distance of about 26 Kms. from the place of incident. It is highly improbable that the family members of the deceased would visit him in the hospital in the night of the incident leaving the dead body of their father on the street. 37. from the place of incident. It is highly improbable that the family members of the deceased would visit him in the hospital in the night of the incident leaving the dead body of their father on the street. 37. Record of the case further indicates that P.W. 2, Diwakar has also set up the same story of going to the petrol pump at around 10 o’ clock in the morning to purchase 20 liters of Diesal alongwith a torch but since he could not get the diesel, he also proceeded to Harriya Bazar to see durga puja celebrations. Perusal of his testimony indicates that he kept standing in the queue at the petrol pump till 8. 30 p.m. for nearly nine hours to purchase 20 liters diesel, where he saw Uma Shankar and P.W. 1 Ram Shankar but he did not talk to them or accompanied them to Harraiya Bazar. Ultimately, when he could not get diesel, he left the diesel Can at the petrol pump and proceeded to Harriya Bazar to enjoy Durga Puja celebration. It seems quite improbable that a person who is leaving his house at 10 a.m. in the morning to purchase diesel from petrol pump would carry a torch with him and would remain standing in the queue for around nine hours to purchase 20 liters of diesel. It is also notable that even though P.W. 2, Diwakar was closely connected with Uma Shankar, he neither chose to talk to him nor accompanied him to Harraiya Bazar. The circumstances shows that he was only a chance witness at the scene of occurrence as according to him he kept standing in the queue till 8.30 p.m. while the incident took place at 9 p.m. He could not have reached the spot within such a short time, particularly when Uma Shankar and Ram Shankar had taken 2 hours to reach the same place of incident from the petrol pump. Thus, this possibility cannot be ruled out that he has been set up to reinforce the evidence of the prosecution side. The entire evidence of P.W. 2, Diwakar also appears to be shaky. Testimony of P.W. 2 is also in contradiction to the site plan with regard to the manner of assault and the place where the accused victims and witnesses were present at the time of incident. The entire evidence of P.W. 2, Diwakar also appears to be shaky. Testimony of P.W. 2 is also in contradiction to the site plan with regard to the manner of assault and the place where the accused victims and witnesses were present at the time of incident. It is also notable that Fard with regard to torch of Diwakar and Laxmi Prasad was prepared after 42 days of the incident which clearly shows that in fact both the witnesses Diwakar and Laxmi Prasad were not carrying torch otherwise the Fard would have been made immediately after the incident. 38. The alleged behaviour of the P.W. 3 at the time of incident was against the natural human conduct. Despite the fact that the accused appellants were allegedly firing upon Uma Shankar and Ram Shankar but still he kept on walking towards the victims including Uma Shankar who were standing just few paces away from him and the firing made by the accused appellants did not deter him to run away from the spot. Despite the fact that the accused appellants were allegedly firing upon Uma Shankar and Ram Shankar but still he kept on walking towards the victims including Uma Shankar who were standing just few paces away from him and the firing made by the accused appellants did not deter him to run away from the spot. At this stage, it would be useful to extract some portion of his testimony in this regard which read as follows; ^^5- ?kVuk ds nwljs fnu njksxk th us esjk C;ku fy;k FkkA mudks eSaus crk;k Fkk fd gjS;k nqxkZiwtk dk esyk ns[kus x;k FkkA ;fn ;g ckr esjs C;ku es ugha gS rks dksbZ otg ugha crk ldrkA ml C;ku esa eSaus ;g ugha crk;k fd fiV~ksy Vadh ij [kkuk [kkus tk jgk FkkA esjs vxy cxy cgqr ls vkneh vk jgs FksA eSa ifPNe ls iwjc tk jgk FkkA eSa nf[ku okyh iVjh ls tk jgk FkkA esjs vkxs ihNs 10] 20 vkneh vk tk jgs FksA lM+d ds mij /kM /kM /kM/kM dbZ vkoktsa gqbZA eSa tku x;k fd cUnwd dV~Vk nx jgk gSA ftl vksj ls cUnwd] dV~Vk dh vkokt vkbZ m/kj c<+rk x;k] u :dk] u MjkA 10] 15 dne jke 'kadj ds nf[ku esa Fkk tc og fxjs FksA jke 'kadj isV ds cy fxjs FksA [kwu cg jgk FkkA /kjrh ij fxjk ;k ugha eSaus ugha ns[kkA muds fxjh gkyr esa cUnwd ugha py jgh FkhA 6- mek 'kadj eq> ls mRrj FksA mek 'kadj dks mRrj ml oDr Hkkxrs ns[kk 4] 6 dne dh nwjh ijA mek 'kadj us u eq>s jksdk vkSj u dqN dgkA vkSj u eSaus mek 'kadj ls dgk fd D;ksa Hkkx jgs gksA tc utnhd x;k rks ns[kk fd jke ujs'k /kksoh ejk iMk gSaA jke ujs'k fd/kj ls vk;k vkSj fdldh xksyh ls ejk eSa ugha crk ldrkA mldks ejs ns[kk Nkrh esa xksyh yxh FkhA eSa ogha :d x;kA jke 'kadj dks ysdj Lirky x;kA jke 'kadj ls dksbZ ckr ugha fd;kA vkSj u jke 'kadj ls okd;s ds ckjs esa dqN iwNkA eSaus Hkh jke 'kadj ls dqN ugha dgkA MkDVj us ns[kdj tokc ns fn;k fd budks cLrh ys tkvksA mek 'kadj dks lHkh eqyfteku [knsM jgs FksA 5] 6 dne [knsMk FkkA [knsMus oDr mudks Qk;j dj jgs FksA ;g dguk xyr gS fd eSaus dqN ugha ns[kk vkSj mek 'kadj ds lkFk vijk/k esa ljhd jgrk gwWa vkSj esjs fj'rsnkj Hkh gS blfy;s eSa xyr C;ku ns jgk gwWA** 39. The aforesaid testimony of P.W. 3 Laxmi Prasad does not inspire confidence. Presence of P.W. 3 at the spot appears to be highly doubtful. The conduct of this witness is most unnatural and against the normal human conduct. His testimony does not appear to be reliable. The prosecution version is not free from doubts and the allegations seems on the weakest wicket. 40. Considering the facts and circumstances of the case, we are of the considered opinion that the view taken by the Court below while convicting the appellants is palpably wrong and the findings recorded by the Court below are perverse, erroneous and cannot stand the scrutiny of law. The judgment passed by the trial Court is based on a complete misreading of the case and misconception of the legal position relevant to the matter and has not considered the evidence on record in right perspective. The prosecution has not been able to prove the case beyond doubt. In our considered opinion the reasons given by the Trial Court are not sufficient to convict the appellants. 41. In the facts and circumstances of the case and the evidence led by the parties renders the origin and genesis of the occurrence doubtful and as such the appellants are entitled to benefit of doubt and acquittal. 42. The appeal having merit is liable to be allowed. 43. On the basis of aforesaid discussion in our considered opinion and also applying the rule of caution, conviction of the appellants namely Bhagwan Das and Shitala Prasad Kurmi cannot be sustained and is liable to be set-aside and in the circumstances of the case, the appellants deserve acquittal. 44. Consequently, the appeal is allowed. 45. The impugned judgment and order dated 25.1.1983 passed by the IInd Additional Sessions Judge, Basti in Sessions Trial No. 76 of 1980 (State of U.P. v. Shitla Singh and others) is set-aside and the appellants namely Bhagwan Das and Shitala Prasad Kurmi respectively are acquitted of the charges levelled against them and their conviction and sentence are hereby quashed and set-aside. The appellants namely Bhagwan Das and Shitala Prasad Kurmi are on bail. They need not to surrender. Their personal and surety bonds are hereby cancelled and sureties are discharged from their liability. 46. Let a copy of this judgment alongwith the trial Court record be sent to the Court concerned for compliance.