JUDGMENT Hon’ble Shashi Kant Gupta, J.—This appeal has been preferred by the accused-appellants against the judgment and order dated 31.3.1983 passed by the Sessions Judge, Banda in Sessions Trial No. 295 of 1982, under Sections 302/34 and 404 IPC, Police Station Pailani, District Banda whereby all the accused appellants have been convicted and sentenced to undergo imprisonment for life for the offence punishable under Sections 302/34 IPC and a sentence of three years R.I for the offence punishable under Section 404 IPC. 2. At the outset, it is pertinent to mention here that during the pendency of this appeal, the co-accused namely Kallu and Shiv Narayan Singh have died. Accordingly, vide order dated 24.2.2012, this Court has abated the appeal in respect of the co-accused Kallu and Shiv Narayan Singh. 3. Now, we are proceeding to consider the present appeal in respect of the surviving appellant namely Indrapal Singh. 4. The factual scenario as described by the prosecution is essentially as follows: 5. Accused Indrapal Singh and Shiva Narain Singh are residents of village Nari, P.S. Pailani, where deceased Ashok Kumar and his father Bhagwandin complainant P.W. 1 lived. Accused Kallu is resident of village Bhindaura, P.S. Tindwari, district Banda and he used to visit Hanuman Singh of village Nari. Bhagwandin, the informant, was posted as Lekhpal at the time of the occurrence in village Mugus, tahsil Banda situated about 14 miles away from village Nari. Murder of one Malkhan Singh of village Nari (brother of accused Indrapal Singh) took place on 26.6.1976. Accused Shiva Narain Singh is a cousin (maternal side) of accused Indrapal Singh. A report of the said occurrence of murder of Malkhan Singh was lodged by Jagat Singh against Ashok Kumar and his father Bhagwandin. The deceased Ashok Kumar was prosecuted under Sections 302 IPC and was acquitted on 8.8.1977. The accused, it is said, had since then been out to commit murder of Ashok Kumar. Ashok Kumar had on the fateful day gone to the place of occurrence “Magraha Baba ka Sthan” with the licensed gun of his father Bhagwandin. He was sitting at a distance of 10-12 paces towards north of the Banyan tree and had kept his gun by his side. Accused Kallu arrived there about 5-6 minutes before the occurrence and sat down beside him and started talking to him. He was sitting at a distance of 10-12 paces towards north of the Banyan tree and had kept his gun by his side. Accused Kallu arrived there about 5-6 minutes before the occurrence and sat down beside him and started talking to him. In the meantime, accused Indrapal Singh and Shiva Narain Singh arrived there from the village. Just when they reached near the Khalihan, accused Kallu caught hold of Ashok Kumar and shouted: “DAUR KAR AAO APNA BADLA LE LO” 6. On his exhortation accused Indrapal Singh and Shiva Narain Singh rushed towards the deceased Ashok Kumar who was trying to free himself from the clutches of the co-accused Kallu. Accused Shiva Narain Singh whipped out a country made pistol from its cover and struck barrel of his pistol twice on the head of Ashok Kumar. In the meantime, accused Indrapal Singh exhorted: “SALE KO MAR DALO” whereupon the accused Shiva Narain Singh fired from pistol at Ashok Kumar causing his death. Thereafter the accused Kallu picked up the gun of Ashok Kumar from the spot and all the accused appellants made good their escape towards south. 7. Bhagwandin P.W. 1 was at the time of the occurrence coming from his chak carrying a bundle of Hariyali. Santosh Kumar was also coming behind him with a load of Hariyali. Sarju and Shiva Kumar were also present in the vicinity. All of them saw the aforesaid occurrence being committed by the accused persons. They also raised alarm and rushed to the scene of offence. 8. Bhagwandin P.W. 1 went to his house and prepared a written report Ext. Ka 2 himself. He came to police station situate about two kilometers away at 5.35 p.m. and lodged the same. Chik F.I.R. Ext. Ka.5 was prepared and a criminal case was registered in the general diary vide copy Ext. Ka.6 by constable Moharrir Chatrapal Singh. Investigation was started by S.I. Rajendra Kumar Singh who examined Bhagwandin in the police station and P.Ws. Shiva Kumar and Santosh Kumar on the spot. S.O. Harshnath Singh reached the scene of occurrence at 10.55 p.m. on 21.1.1982 and took up the investigation. He found dead body of Ashok Kumar lying in the Khalihan near the Banyan tree. The inquest proceeding for want of sufficient light was deferred for next morning by the Investigating Officer, who, however, examined Gulab Singh and Sarju Prasad. S.O. Harshnath Singh reached the scene of occurrence at 10.55 p.m. on 21.1.1982 and took up the investigation. He found dead body of Ashok Kumar lying in the Khalihan near the Banyan tree. The inquest proceeding for want of sufficient light was deferred for next morning by the Investigating Officer, who, however, examined Gulab Singh and Sarju Prasad. S.I. Rajendra Kumar Singh and two constables were dispatched in the same night by the Investigating Officer to search the accused persons. 9. The Investigating Officer started inquest proceeding on the following morning at 7 a.m. and prepared inquest report Ext. Ka 7 and relative documents sketch Ext. Ka 8, challan Ext. Ka 9 and letter for post-mortem examination Ext. Ka 10. The dead body was sealed and handed over at 8.45 a.m. to constables Radhey Charan and Ram Charan alongwith the inquest papers and copy of chick FIR Ext. Ka 4 for carrying the same to Sadar for post-mortem examination. The Investigating Officer thereafter made spot inspection and prepared site-plan Ext. Ka 12. He found a pair of sandal of the deceased on the spot Ext. 1 and recovery memo Ext Ka 13 was prepared. He also found blood below the dead body on the ground and he recovered sample blood stained and unstained earth Exts. 2 and 3 for which recovery memo Ext. Ka 14 was prepared. He also found a plastic Tikly Ext. 4 and recovery memo Ext. Ka 15 was prepared. The Investigating Officer returned at 7.45 p.m. on 22.1.1982 to the police station and deposited the articles of the case with seals intact vide G.D. entry Ext. Ka 16. 10. The prosecution examined Bhagwandin complainant as P.W. 1, Santosh Kumar as P.W. 3, Shiva Kumar as P.W. 4 and Sarju Prasad as P.W. 5 as witnesses of fact. P.W. 1 Bhagwandin proved the F.I.R. which he had lodged at the police station and the occurrence in the manner detailed above. P.W. 3 Santosh Kumar is the cousin of the deceased and at the time of the occurrence was allegedly coming behind P.W. 1 Bhagwandin from his field with a bundle of Hariyali. He also supported the story of the prosecution. P.W. 3 Santosh Kumar is the cousin of the deceased and at the time of the occurrence was allegedly coming behind P.W. 1 Bhagwandin from his field with a bundle of Hariyali. He also supported the story of the prosecution. P.W. 4 Shiva Kumar and P.W. 5 Sarju Prasad were treated as a hostile witnesses as they did not support the prosecution story, however stated that the murder was committed around 4 p.m. at the Asthan olf Magraha Baba in the Khalihan. 11. S.O. Harshnath Singh P.W. 6 proved the police papers and the investigation of the case as detained above. 12. Dr. D.S. Rana, Medical Officer In-charge, district hospital Banda P.@. 2 conducted autopsy at 3 p.m. on 22.1.1982 upon dead body of Ashok Kumar and he proved the post-mortem memo Ext. Ka 3 which he had prepared at the time of examination. Post-mortem examination : The deceased was aged about 24 years and had died about one day before. External examination : Average built. Rigor mortis present in both upper and lower extremities. No distention of abdomen. Bleeding from left ear and both nostrils present with clotted blood. Ante-mortem injuries : (1) Gun shot wound of entry on the left side face and neck 2 cm x 2 c m x face and neck content deep. Margins inverted and lacerated. Blackening and charring present. Directed inwards, downwards and towards right side neck. There is lacerated wound all around. This injury 12 cm x 10 cm x face and neck content deep. Situated 0.5 cm below the left ear lobule and on face, 4 cm lateral to left nostril. The wound is wide open and left side ramus of mandibs fractured in pieces and some pieces are missing. Left side neck blend lacerated. On exposure there is fracture of 2nd and 3rd cervical vertebrae and one metallic pellet recovered from the body of 3rd cervical vertebrae and two from the muscle of left side neck and one from the muscle of right side neck. Sutures on left side skull fronto parietal loose. (2) Gun shot wound of exit three in number on the right side neck each measuring by 1 cm x 1 cm x through and through. Margins everted in an area 4 cm x 1 cm situated 2 cm below the right ear lobule and nine on above and lateral to medical and of right clavicle. (2) Gun shot wound of exit three in number on the right side neck each measuring by 1 cm x 1 cm x through and through. Margins everted in an area 4 cm x 1 cm situated 2 cm below the right ear lobule and nine on above and lateral to medical and of right clavicle. Injury corresponds to injury No. 2. (3) Lacerated wound on the right side skull 1 cm x .5 cm x scalp deep. Margins lacerated, situated 7 cm above and behind the right ear. (4) Lacerated wound on the back of skull 1.5 cm x .5 cm x scalp deep situated 1 cm behind and towards left side to injury No. 3. Internal examination: Stomach contents semi digested food matter about 300 grams present. Large and small intestine loaded. 13. In the opinion of Dr. Rana death was due to shock and hemorrhage as a result of ante-mortem fire-arm injury. 14. Dr. Rana had recovered from the dead body one Tahmat, one Chadhi, one open shirt one under shirt, one sweater and two metal rings from the persons of the deceased and the same were forwarded to P.S. Bailani through constable. According to him the death could have been caused at about 4 p.m. on 21.1.1982 on account of one gun shot fire. He also found that injuries Nos. 3 and 4 could be caused by barrel of a Tamancha or by some blunt weapon. 15. The prosecution also tendered in evidence report of Chemical Examiner Ext. Ka 31 and of Serologist Ext. Ka 32. 16. The Trial Court after hearing the learned counsel for the parties and going through the record found that the prosecution has fully succeeded in bringing home the charges against the appellants beyond reasonable doubt and vide impugned judgment and order dated 31.3.1983 convicted and sentenced the accused appellants, hence the present appeal. 17. Learned counsel for the appellant has stated that the First Information Report is ante timed. He further submitted that none of the witnesses of fact was present on the spot. Two alleged independent witnesses P.W. 4 and P.W. 5, who were set up by the prosecution have been declared hostile as they have not supported the prosecution version and have not named the accused. He further submitted that remaining prosecution witnesses P.W. 1-Bhagwandeen and P.W. 3- Santosh Kumar were the close relative of the deceased. Two alleged independent witnesses P.W. 4 and P.W. 5, who were set up by the prosecution have been declared hostile as they have not supported the prosecution version and have not named the accused. He further submitted that remaining prosecution witnesses P.W. 1-Bhagwandeen and P.W. 3- Santosh Kumar were the close relative of the deceased. P.W. 1 was the father and P.W. 3 was the cousin of the deceased Ashok Kumar. It was further submitted that P.W. 1-Bhagwandeen was posted as a Lekhpal in the village Mugus, Tehsil Banda situate about 14 miles away from the village Nari. He further submitted that the story that P.W. 1-Bhagwandeen was on a casual leave at the relevant time has been concocted and merely a postal receipt has been produced by the P.W. 1 only to justify his presence at the place of occurrence. He further submitted that the story set up by P.W. 1 that he remained on leave from 20.1.1982 to 27.1.1982 does not inspire confidence. He further submitted that the injuries described in the post-mortem report of the deceased Ashok Kumar does not corroborate with the oral evidence as in the First Information Report as well as in the statement recorded under Section 161 Cr.P.C., none of the witnesses has stated that the deceased was hit with the barrel of the pistol however later on the witnesses, while making statement before the Court below. P.W. 1 and P.W. 2 have stated that deceased was also hit from the barrel of the pistol. Further none of the witnesses except P.W. 1 Bhagwan has stated that the deceased was wearing a bandolier containing 17 cartridges around his waist and it was taken away by the P.W. 1 immediately after the alleged incident. P.W. 1 Bhagwan deen, however before deposing about this fact before the Court neither had stated in the FIR nor in his statement recorded under Section 161 Cr.P.C. According to him he stayed only for two minutes at the spot after the occurrence before leaving for his house. It is very improbable that he would have taken away the bandolier containing cartridges within a couple of minutes especially when the scene of crime was so terrible and the deceased was lying in a pool of blood as the shot was fired at the deceased hitting the neck and the face region. 18. It is very improbable that he would have taken away the bandolier containing cartridges within a couple of minutes especially when the scene of crime was so terrible and the deceased was lying in a pool of blood as the shot was fired at the deceased hitting the neck and the face region. 18. Per contra, learned A.G.A has supported the case of the prosecution and stated that the evidence available on record clearly indicates that the alleged crime was committed by the appellant and the other co-accused, who died during the pendency of the appeal. It was further submitted that admittedly the deceased was having long standing enmity with the appellants and was also charged under Section 302 IPC for murdering Malkhan Singh, the brother of Indrapal Singh, however he was later on acquitted in the case. He further submitted that the witnesses, who were declared hostile have none the less admitted that the alleged incident had taken place at around 4 p.m. although they had not taken the name of the appellant and other co-accused. 19. Heard Shri Sikander Bharat Kochar, learned counsel for the appellant, Shri S.N. Tripathi and Shri Rajeev Gupta, learned AGA appearing on behalf of the State and perused the material available on record. 20. As the appellants Shiv Narain (who was assigned the role of firing) and Kallu died during the pendency of the appeal, there appeal stood dismissed as abated by order dated 24.2.2012. Therefore, now we have to examine the case of the appellant Indrapal Singh, who has been assigned the role of catching hold of the deceased Ashok Kumar. 21. According to the prosecution, the deceased namely Ashok Kumar was murdered at about 4 p.m. on 21.1.1982, 10-12 paces towards north of the Banyan tree situated at Magraha Baba Ka Asthan. P.W. 1 Bhagwandeen, the complainant and father of the deceased and P.W. 3 Santosh Kumar, the cousin of the deceased are the alleged eye-witness. P.W. 1-Bhagwandeen was a Lekhpal, posted in the village Mugus, Tehsil Banda situate about 14 miles away from the village Nari, he has deposed that he was on casual leave from 20.1.1982 to 27.1.1982. P.W. 1 Bhagwandeen, the complainant and father of the deceased and P.W. 3 Santosh Kumar, the cousin of the deceased are the alleged eye-witness. P.W. 1-Bhagwandeen was a Lekhpal, posted in the village Mugus, Tehsil Banda situate about 14 miles away from the village Nari, he has deposed that he was on casual leave from 20.1.1982 to 27.1.1982. The reasons shown by P.W. 1 for taking casual leave were that firstly, he was unwell and secondly, he avoided going to his Office because the Sub Divisional Officer was holding a Camp Office between 21.1.1982 to 24.1.1982 at Tindwari, which was about two miles from the village Mugus, so he went on casual leave from 20.1.1982 to 27.1.1982. It is pertinent to note that the Sub Divisional Officer was holding Inspection at Tindwari from 21.1.1982 to 24.1.1982 but the leave sought by P.W. 1- Bhagwandeen was from 20.1.1982 to 27.1.1982 I.e. eight days. It is pertinent to note that the Sub Divisional Officer was holding Inspection at Tindwari from 21.1.1982 to 24.1.1982 but the leave sought by P.W. 1- Bhagwandeen was from 20.1.1982 to 27.1.1982 I.e. eight days. It is difficult to believe that a person, being a Government servant would take leave for eight days continuously merely because he wanted to avoid going to the camp office during the course of Inspection by S.D.O. In this regard at this stage, it is relevant to refer to the extract of the testimony of the P.w. 1 Bhagwan deen made before the Court below, which is as follows: ^^15- eSa 20&1&82 dks chekj iM+ x;k lkèkkj.k chekjh tq[kke [kkalh gks x;k Fkk vr,so 20&1&82 dks eSaus dksbZ dke ugha fd;k vkSj NqV~Vh ij jgk 20 rkjh[k dks NqV~Vh dh nj[kkLr ugha nh 21 rkjh[k dks eSaus jftLV~h Mkd }kjk nj[kkLr 20 ls 27 rkjh[k rd dh NqV~Vh ds fy;s Hkstk eSa 20 rkjh[k dks eqaxql ls pydj vius xkao vk x;k djhc ,d cts fnu esa xzke ujh ds Mkd[kkus dh Mkd ,d Mkfd;k izfrfnu iSykuh ys tkrs gSa eq>s ugha ekywe fd Mkd 10 ls 12 cts fnu dks Hkst nh tkrh gSA 21-1-82 dks esjh rfc;r Bhd gks xbZ Fkh eSaus ckjg cts fnu rd Mkd ls nj[kkLr u Hkst nsus dk dksbZ dkj.k ugha crk ldrk eSaus lkspk Fkk fd [kk ihdj ?kj tkrs le; jkLrs ls Mkd[kkus ls jftLV~h dj nwWaxk pwafd gkfde ijxuk dk 'khrdkyhu nkSjk Fkk blfy, ;g Hkh Mj Fkk fd dksbZ vfu;ferrk ikdj dgha vkSj u Hkst fn;k tk;A rfc;r [kjkc gksus dk dkj.k fn[kk dj eSaus vkdfLed vodk'k dh nj[kkLr nh FkhA ,duksfyt esUV dkMZ 26 ;k 27 rkjh[k dks eq>s izkIr gqvk ijUrq Bhd rkjh[k eq>s ;kn ugha gSA 20 ls 27 rd dh NqV~Vh iwjh eSaus bLrseky dh vkSj mlds ckn eSaus NqV~Vh ugha yhA ;g dguk xyr gS fd eSa 22-1-82 dks gYds ls ?kj cqyk;k x;k vksj mlds ckn eqdnesa dh fjiksVZ rS;kjh dh xbZA gkfde ijxuk dk iM+ko 24-1-82 rd Fkk 27&1&82 rd NqV~Vh ysus dk dksbZ dkj.k ugha FkkA NqV~Vh ys fy;k rks ys fy;kA ;g dguk xyr gS fd 22-1-82 dks dry dk gky ekywe gksus vkSj vkus\ ij eSaus 27&1&82 rd dh NqV~Vh ys yhA eq>s ugha ekywe fd ge yksxksa dh NqV~Vh dh nj[kkLrksa dk fjdkMZ dgka jD[kk tkrk gSA rfc;r [kjkc gksus vkSj 20 ls 27 rd NqV~Vh ysus vkSj 20 rkjh[k dks gh xzke ujh vkus dh ckr jiV esa ugha fy[kkh vkSj uk gh njksxk ds lkeus c;ku fd;k bu ckrksa dks jiV esa fy[kus ;k njksxk dks crkus dh t:jr ugha Fkh jftLV~h }kjk NqV~Vh dh nj[kkLr Hkstus dh ckr njksxk dks ugha crk;k D;ksafd t:jr ugha Fkh bDdhl rkjh[k dks ujh Mkd[kkus esa jktkckcw dks eSaus jftLV~h nh mudk iwjk uke D;k gS ugha ekywe og ujh ds gh jgus okys gSa] og esjs esyh ugha gS ;g xyr gS fd eSa mudk uke fNik jgk gwWa vkSj muds ;gkWa esjk mBuk cSBuk gS njksxk Mkd[kkus dh jlhn ugha fn[kkbZA ;g dguk xyr gS fd Mkd[kkus dh jlhn vkSj ,dukfytesUV QthZ rS;kj fd;s x;s gSaA** The inspection was only for the period of four days as such there was no occasion for the P.W. 1 to take casual leave continuously for eight days. It is notable that if he was at all ill, then he should not have been doing agricultural work and carrying bundle of Hariyali while his son was sitting idle at the distance just 100 paces away from him alongwith his gun under the Banyan tree. No evidence has been produced to show that in fact the leave was ever granted to him, the postal receipt does not indicate that at what time, the casual leave application was sent by P.W. 1 to his Office. Merely filing of postal receipt does not prove that in fact the application for taking leave for eight days was sent as no proof or evidence has been produced indicating that the authorities had granted him any leave. The prosecution could have produced the record of the attendance Register or original application sent by the P.W. 1 Bhagwandeen for taking casual leave after summoning it from the office of Tehsildar, where P.W. 1 Bhagwandeen was posted. It is also notable that when the Inspection was carried out only for four days from 21.1.1982 to 24.1.1982 then why he took leave from 20.1.1982 to 27.1.1982 i.e. eight days and why the application seeking casual leave was sent on 20.1.1982 instead of 21.1.1982 on the day when his son was murdered. In the paragraph 15 as quoted herein above, it has been stated by the P.W. 1 that he returned from Mungus on 20.1.1982. (his office is situated in Mungus). If he did not attend his office at Mungus on 20.1.1982 then why did he at all go to Mungus. No explanation in this regard has been given. 22. It may be further noticed that two independent witness P.W. 4 and P.W. 5 have been declared hostile and they have not made any allegation against the appellant. Although, it is true that both the witnesses P.W. 4 and P.W. 5 have deposed that the incident had taken place at around 4 O’clock but they have however denied the participation of the appellant and other co-accused in the incident. 23. It is also pertinent to note that the incident is said to have taken place on 21.1.1982 at 4 p.m. and FIR was lodged on 21.1.1982 at 5.35 p.m., the informant in his evidence given before the Trial Court has given two contradictory timings ie. 23. It is also pertinent to note that the incident is said to have taken place on 21.1.1982 at 4 p.m. and FIR was lodged on 21.1.1982 at 5.35 p.m., the informant in his evidence given before the Trial Court has given two contradictory timings ie. At one place he has alleged to have reached the spot with the Junior Inspector at 6.30 p.m. on 21.1.1982 while at another place he has alleged to have reached the place of occurrence with the Junior Inspector at 8 p.m. on 21.1.1982. The said contradictions in the evidence of P.W. 1 have not been taken into account by the Trial Court. Similarly, material improvement has been made by P.W. 1 Bhagwandeen in his evidence in order to to explain the lacerated wound found on the head of the deceased Ashok Kumar singh deposing that the barrel of the country made pistol was hit by the accused Shiv Narain Singh on the head of the deceased. The said fact totally improbablises the prosecution story and is suggestive of the fact that no one had seen the real occurrence as nothing in this regard was either discussed in the FIR or in the statement under Section 161 Cr.P.C by the witnesses. 24. Perusal of the evidence of P.W. 6 Harsh Nath Singh, Investigating Officer of the case shows that there were cutting and overwriting in the date of the G.D and C.D entry and further prosecution has not been able to prove the fact as to when the special report under Section 157 Cr.PC was sent to the Magistrate, the said fact further creates a doubt as to the genuinity of the prosecution case. Further none of the witnesses except P.W. 1 Bhagwan has stated that the deceased was wearing a bandolier containing 17 cartridges around his waist and it was taken away by the P.W. 1 immediately after the alleged incident. P.W. 1 Bhagwan deen, however before deposing about this fact before the Court neither had stated in the FIR nor in his statement recorded under Section 161 Cr.P.C. According to him he stayed only for two minutes at the spot after the occurrence before leaving for his house. P.W. 1 Bhagwan deen, however before deposing about this fact before the Court neither had stated in the FIR nor in his statement recorded under Section 161 Cr.P.C. According to him he stayed only for two minutes at the spot after the occurrence before leaving for his house. Since the crime scene was so ferocious and horrible it was very improbable that he would have taken away the bandolier containing cartridges within a couple of minutes from the waist of his son who was lying in a pool of blood after the fire hit on his neck and the face region. 25. It has come on the record that the postal articles were used to be entrusted by the Post Office authorities to the Post man by 12 Noon for its distribution to the respective addressees but according to P.W. 1 Bhagwandeen he sent the application applying for casual leave by registered post after 2 p.m.. In such circumstances, casual leave application could have been sent by hand through some person instead of sending it by registered post particularly when his work place was admittedly not very far off (14 miles) from his village. Such conduct of the P.W. 1-Bhagwandeen in the situation shows that a false story with regard to taking casual leave for eight days was framed. The prosecution story in this regard is neither inspiring nor can be accepted. The story qua taking casual leave from his office has been set up to establish his physical presence P.W. 1 Bhagwandeen on the spot at the time of occurrence. This presumption is also fortified by the fact that neither in the FIR nor in the statements of the witnesses recorded under Section 161 Cr.P.C., it has been disclosed that before firing upon the deceased, barrel of the pistol was struck on the deceased causing lacerated wound. It also appears very improbable that the assailants before firing on the deceased would first struck on his head the barrel of the loaded pistol instead of firing at the deceased especially when the alleged witnesses of fact were rushing towards the scene challenging the assailants after hearing the cry of the deceased. It also appears very improbable that the assailants before firing on the deceased would first struck on his head the barrel of the loaded pistol instead of firing at the deceased especially when the alleged witnesses of fact were rushing towards the scene challenging the assailants after hearing the cry of the deceased. It appears that subsequent improvement in the testimonies of the prosecution was made in order to bring eye-witness account in conformity with the medical evidence although there is no whisper either in the FIR or statement under Section 161 Cr.P.C qua injuries received from the hard and blunt object. 26. The incident is said to have taken place on 21.1.1982 at 4 p.m., still the Panchayatnama was conducted on the next morning at 7 a.m. although according to the prosecution witnesses, the police had arrived at the spot at 6.30 p.m.. The explanation given by the prosecution that due to darkness, Panchayatnama could not be conducted in the evening does not appeal us at all. Admittedly the incident had taken place near abadi of the village which was hardly 80-150 yards from the house of the informant. Lighting arrangement such as lamp or lantern could have been easily arranged. Record shows that the electricity was also available in the village. The dead body could also have been shifted from the place of incident to the house of the deceased by the Police for conducting Panchayatnama but nothing of this sort was done and the body of the deceased was allowed to remain lying at the spot throughout the night without taking any further action thereon. The explanation for conducting the Panchayatnama after around 14 hours after lodging of the FIR creates dent in the prosecution story. 27. It is also notable that according to the prosecution, the deceased was one of the accused in the murder of one Malkhan, the brother of the present appellant Indra Pal Singh and was acquitted later on in the year 1977. The present incident had taken place in the year 1982 after five years after the acquittal of the deceased, it would be difficult to believe that the accused appellant would take revenge after so many years of the earlier incident in which the deceased was made an accused. 28. The present incident had taken place in the year 1982 after five years after the acquittal of the deceased, it would be difficult to believe that the accused appellant would take revenge after so many years of the earlier incident in which the deceased was made an accused. 28. It is also difficult to believe that the appellant, who was having inimical relations with the deceased would go bare handed alongwith the co-accused, not carrying even a Lathi with him, specially when the deceased himself was carrying a weapon i.e. gun with him. It may also be noted that according to the Doctor, the firing has been made from a distance of few feets, therefore, it would be very improbable that anyone would have taken risk of catching hold of deceased Ashok Kumar, especially when the deceased was also armed with gun. There is always a possibility that the fire shot by the assailants may miss the target and cause death of the person, who is catching hold of the victim. 29. P.W.3-Santosh Kumar Singh, the cousin of the deceased is also a chance witness. He also appears to have been set up purposely to make out a false case against the accused person and his presence at the place of incident also appears to be highly doubtful. It has also come on record that he had two servants for doing agricultural work. The story of collecting Hariyali and carrying its bundle appears to be concocted by the prosecution as in the site plan nothing has been shown that from which place the Hariyali was collected or thrown after the incident. Since the P.W.1-Bhagwandeen was holding an important office of Lekhpal in the village he would not have indulged in collecting Hariyali and carrying its bundle on his head particularly when he was unwell and admittedly had kept two servants also namely Brij Raj and Ram Nath for doing agricultural work. No explanation has been given by the prosecution in this regard. Medical evidence do not also corroborate the oral evidence as already discussed in detail in the earlier paragraph of the judgment. 30. No explanation has been given by the prosecution in this regard. Medical evidence do not also corroborate the oral evidence as already discussed in detail in the earlier paragraph of the judgment. 30. Facts and circumstance of the case shows that the FIR has been lodged after due consultation and deliberation and it appears that none of the witnesses had seen the occurrence and merely because the appellant was having long standing enmity with the deceased was falsely implicated in the present case. 31. The present appellant Indra Pal Singh has been assigned the role of exhortation and catching hold of the deceased. The specific role of firing has allegedly been assigned to the co-accused namely Shiv Narayan Singh, who died during the pendency of the appeal. 32. 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 accused-appellant Indra Pal Singh is palpably wrong and the findings recorded by the Court below are perverse, erroneous and cannot stand the scrutiny of law. In our considered opinion the reasons given by the Trial Court are not sufficient to convict the accused-appellant Indra Pal Singh. 33. 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 accused-appellant Indra Pal Singh is entitled to benefit of doubt and acquittal. 34. On the basis of aforesaid discussion in our considered opinion and also applying the rule of caution, conviction of the accused-appellant namely Indra Pal Singh cannot be sustained and is liable to be set-aside and in the circumstances of the case, the accused-appellant Indra Pal Singh deserves acquittal. 35. The impugned judgment and order dated 31.3.1983 passed by the Sessions Judge, Banda in Sessions Trial No. 295 of 1982 is set-aside and the appellant namely Indra Pal Singh is acquitted of the charges levelled against him and his conviction and sentence are hereby quashed and set-aside. The appellant namely Indra Pal Singh is on bail. He need not to surrender. His personal and surety bonds are hereby cancelled and sureties are discharged from their liability. 36. In the result, we find and hold that the present appeal has got merit and the appeal is allowed. 37. The appellant namely Indra Pal Singh is on bail. He need not to surrender. His personal and surety bonds are hereby cancelled and sureties are discharged from their liability. 36. In the result, we find and hold that the present appeal has got merit and the appeal is allowed. 37. Let a copy of this judgment alongwith the trial Court record be sent to the Court concerned for compliance.