JUDGMENT Hon’ble Shashi Kant Gupta, J.—This appeal has been preferred by the accused-appellants against the judgment and order dated 2.8.1984 passed by the Vth Additional Sessions Judge, Basti in Sessions Trial Nos. 157 of 1982 & 76 of 1983, under Sections 302, 302/34 IPC, Police Station Mahuli, District Basti whereby the accused appellant No. 1 has been convicted and sentenced to undergo imprisonment for life for the offence punishable under Section 302 IPC and the appellant Nos. 2 to 4 have been convicted and sentenced to undergo imprisonment for life for the offence punishable under Sections 302/34 IPC. 1A. The present appeal was filed in the year 1984 against the impugned judgment dated 2.8.1984 and it has come up for hearing before us after the lapse of a period of about 32 years. 2. At the outset, it is pertinent to mention here that during the pendency of this appeal, the appellant No. 3 namely Samiullah had died. Accordingly, vide order dated 20.4.2016, this Court has abated the appeal in respect of the appellant No. 3 namely Samiullah. 3. Now, we are proceeding to consider the present appeal in respect of the remaining appellants i.e. appellant Nos. 1, 2 and 4 namely Rafi Ullah, Rafi Ahmad and Alimul Kadar alias Dhil Dhil. 4. The factual scenario as described by the prosecution is essentially as follows: The deceased Mohamad Haroon was nominated as an accused alongwith his brother Baitullah and other companions for the murder of Nabi Rasool, the real brother of the accused Rafi Ullah in the year 1972. The case culminated in acquittal of the deceased. Alimul Kadar alias Dhil Dhil launched a prosecution under Section 307 of the Indian Penal Code against the deceased which was pending on the date of the occurrence. The accused were at logger-heads with the deceased on account of his acquittal in the murder case because of the pendency of other criminal cases between them, as such, they were looking for an opportunity to take revenge against him. The accused were at logger-heads with the deceased on account of his acquittal in the murder case because of the pendency of other criminal cases between them, as such, they were looking for an opportunity to take revenge against him. On 17th November, 1981 at about 9.30 p.m., while the deceased was returning home from Mahuli Bazar in the company of Sirajul Haq and Jabbar (who were also the residents of village Chhitahi) and reached near ‘Chhoti Masjid’ in village Chhitahi, the accused appellants Rafi Ullah, Alimul Kadar alias Dhildhil, Rafi Ahmed and Sami Ullah, who lay in wait for the arrival of the deceased, emerged from the west of the mosque, surrounded him challenged the deceased and Rafi Ullah fired at him by means of Katta, which hit him in the abdomen. On an alarm being raised by the deceased, many people of the locality arrived at the spot as a result thereof, all the four accused fled away. The accused persons were recognized by his two companions and other villagers also in the electric light which was burning near the Mosque. 5. A First Information Report of the incident, Ext. Ka 1 was lodged by the victim Mohammad Haroon himself at the Police Station Mahuli under Section 307 of the Indian Penal Code at 22.50 p.m. on 17.11.1981 vide chick F.I.R. Ka 4 against the accused persons. 6. The injured was taken to the Primary Health Centre Nath Nagar where his injuries were examined by the Medical Officer Sri A.K. Verma at 11.45 p.m. He found the following injuries on the body of the injured Haroon. (i) Four lacerated wound of .5 cm x .5 cm x skin deep each in the area of 4 cm x 3 cm on the left side of abdomen 1 cm. Lateral and below from umblicus. Bleeding present. (ii) Lacerated wound of .5 cm x 5 cm x skin deep on right side of abdomen 7 cm below and Lateral from umblicus. Bleeding present. (iii) Lacerated wound of .5 cm x .5 cm x skin deep on anterior iliac spine of left iliac fossa. Bleeding present. Injuries are caused by fire-arm weapon and are kept under observation till X-ray from District Hospital, Basti. Duration about fresh. 7. Bleeding present. (iii) Lacerated wound of .5 cm x .5 cm x skin deep on anterior iliac spine of left iliac fossa. Bleeding present. Injuries are caused by fire-arm weapon and are kept under observation till X-ray from District Hospital, Basti. Duration about fresh. 7. While the accused was being carried to the District Hospital for X-ray and further treatment, he succumbed to his injuries on the way to the hospital. Sri Vijay Shanker Pandey, an accompanying Police Constable, informed the Police Station Kotwali Basti regarding the death of the deceased by his letter dated 18.11.1981. An entry in the General Diary was made in this regard by the Police Kotwali, vide Ext. Ka 7. Sri Radhey Shyam Dwivedi, a Sub Inspector posted at P.S. Kotwali conducted the inquest on the dead body of the deceased and prepared Panchayatnama memo of the dead body at the Police Station Kotwali where the dead body was carried by the Police Constable Vijay Shanker after the death of the deceased. He sent the dead body in a sealed condition to the mortuary for post-mortem. The letter for post-mortem, the Challan Nash, the photonash and the Police Form No. 33, prepared by Sri Radhey Shyman Dwivedi have been exhibited as Exts. Ka 8, Ka 9, Ka 10 and Ka 11 respectively on the record. 8. After the death of the injured, the case registered against the accused persons under Section 307 I.P.C. was converted into Section 302 of the Indian Penal Code on 18.11.1981 at 21.15 at Rapat No. 26, vide extract of the G.D. Ext. Ka 6. 9. The Dr. Kuber Nath, a Medical Officer at District Hospital, Basti performed the autopsy of the dead body on 18.11.1981 at 3 p.m., vide Ext. Ka 12. The doctor found the deceased of an average built, mouth half opened, eyes closed and rigor mortis present in both upper and lower limbs. He found the following ante-mortem injuries on the body. Ante-mortem injuries (1) Gun shot wound (wound of entry) five in number in an area of 9 cm x 8 cm on the front and lower part of abdomen, just below umblicus, each measuring 1 cm x 1 cm x abdominal cavity deep. Margins inverted, blackening and charring present around the wound. Directions - From right to left and slightly downward. On Opening (a) Peritoneum punctured at multiple places. Margins inverted, blackening and charring present around the wound. Directions - From right to left and slightly downward. On Opening (a) Peritoneum punctured at multiple places. (b) Large and small intestine punctured at multiple places through and through. (c) Left side iliac bone broken into multiple places. Five large metallic pellets recovered from the left side and lateral part of lower abdominal wall. One sealed pocket containing five large metallic pellets handed over to Police Constable accompanying abdomen cavity - containing fluid and clotted blood 2 oz. Clothes—One Bandi, One Kameez, One Kacchi, One chadar- Total five, handed over to the Police Constable accompanying. Cause of death- Death due to shock and hemorrhage as a result of ante-mortem gun shot wound. 10. Sri Dinesh Prasad Chaturverdi, a Sub Inspector Police posted at Mahuli took up the investigation on 17.11.1981, the day of the incident. He allegedly recorded the statement of injured Haroon and witness Jabbar on the same date. The statement of Mohammad Hayat was recorded on 19.11.1981. Constable Vijay Shanker Pandey was also interrogated on 19.11.1981. On the receipt of the post-mortem report on 19.11.1981 Sirajul Haq and Jabbar, witnesses cited in the F.I.R. were interrogated and a site-plan of the place of occurrence was prepared on their pointing out (Ext. Ka 14). 11. The I.O. recovered empty cartridges from the place of occurrence on 19.11.1981 (after two days of the incident) when he visited the spot. He prepared Fard Memo, Ext. Ka 15 after sealing it in a tin box. Statements of the other witnesses, under Section 161 Cr. P. C. and of the accused were recorded by the I.O., and thereafter, submitted charge-sheet Ext. Ka 16 against all the accused. 12. The prosecution examined as many as ten witnesses in support of the prosecution case. Out of these witnesses P.W. 1 Sirajul Haq and P.W. 2 Jabbar were the alleged eye-witnesses who were accompanying the deceased when he was fired from the pistol. P.W. 3 Uma Shanker Dubey was the Incharge of the Police Out post Gandhi Nagar. 13. P.W. 4 Jayanti Lal was a Head Constable Moharrir posted at P.S. Mahuli on 7.11.1981 when a written F.I.R. Ext. Ka 1, relating to the incident in question was submitted before him who had prepared chick F.I.R. Ext. P.W. 3 Uma Shanker Dubey was the Incharge of the Police Out post Gandhi Nagar. 13. P.W. 4 Jayanti Lal was a Head Constable Moharrir posted at P.S. Mahuli on 7.11.1981 when a written F.I.R. Ext. Ka 1, relating to the incident in question was submitted before him who had prepared chick F.I.R. Ext. Ka 4 under his hand and had made an entry in the general diary at Rapat No. 29 registering a case under Section 307 of the Indian Penal Code against the accused, vide Ext. Ka 5, an extract of the general diary. He had proved the alteration of the case after the death of the deceased under Section 307 of the Indian Penal Code into one for punishable under Section 302 I.P.C. The entry regarding the alteration was made at Rapat No. 26 in the general diary at 21.15 p.m. on 18.11.1981 by Virendra Singh, a Constable Moharrir who was posted with him at that time. 14. Prahald Mishra, S.O. Kotwali was examined as P.W. 5 on 20.10.1981. He deposed that he had detained Talukar, Mujib Ullah and Mustaq residents of village Chhitahi on 20.10.1981 on a statement by Uma Shanker Dube, In-charge Police Outpost, Gandhi Nagar that they were attempting to get a false alibi prepared by getting them challanned in some criminal case. The S.O. captured them at the crossing of Gandhi Nagar when they were pretending to fight and making imputations and counter imputations against each other in order to get themselves arrested. 15. Radhey Shyam Dwivedi, a Sub Inspector of Police posted at Police Station Kotwali was examined as P.W. 6 in the case. He conducted inquest on the dead body of the deceased and prepared inquest memo, photonash, challan nash. After sealing the dead body, he had sent it for post-mortem to the District Hospital, Basti. The panchnama, the photo nash, the challan nash and the letter for post-mortem, addressed to the doctor were all proved by this witness as discussed above. 16. Dr. Kuber Nath Pandey was posted as a Medical Officer in District Hospital, Basti on 18.11.1981 who had performed the autopsy of the deceased at 3 p.m. On 18.11.1981 was examined as P.W. 7. He had proved the post-mortem report as Ext. Ka 12. 16. Dr. Kuber Nath Pandey was posted as a Medical Officer in District Hospital, Basti on 18.11.1981 who had performed the autopsy of the deceased at 3 p.m. On 18.11.1981 was examined as P.W. 7. He had proved the post-mortem report as Ext. Ka 12. The metallic pellets, which were taken out from the body of the deceased at the time of the post-mortem by him, were marked as Ext. 1. The clothes removed from the dead body during autopsy by the doctor were marked as Ext. 2, Ext. 3, Ext. 4, Ext. 5 and Ext. 6. 17. In the opinion of the doctor, the deceased died of fire-arm injury and the death could have taken place on 18.11.1981 at 3 a.m. Blackening and charring was present around the wounds. 18. Dr. A.K. Verma, a Medical Officer at Primary Health Centre, Nath Nagar, who examined the injuries of the victim before he (deceased) died in the way to hospital, was examined as P.W. 8. He stated that he had examined him on 17.11.1981 at 11.45 p.m. and had noted his injuries (Ext. Ka 13) under his hand at the time of his examination. In his opinion the injuries could have been caused on 17.11.1981 at 9.30 p.m. by a fire-arm. 19. P.W. 9, Dinesh Prasad Chaturvedi was Sub Inspector of Police at the Police Station Mahuli. He had been entrusted the task of investigating the defence. He had proved the site-plan Ext. Ka 14, Fard recovery relating to the taking in possession of the ‘Tiklies’ from the place of occurrence, the alleged statement of the injured (before its death) recorded under Section 161 Cr. P. C. as Ext. Ka 17 and the charge-sheet Ext. Ka 16. 20. Sri Ram Jiwan, a Home Guard to whom the dead body was handed over for post-mortem alongwith Sri Vijay Shanker Pandey after its Panchayatnama by the Sub-Inspector Kotwali Sri Radhey Shyam Dwivedi, was examined as P.W. 10. He stated that he did not permit anyone to tamper with the dead body so long as it was in his possession before the post-mortem by the doctor to whom it was produced by them in a sealed state. 21. The accused denied their complicity in the crime in their statements under Section 313 of the Criminal Procedure Code and stated that they have been falsely implicated on account of enmity. 21. The accused denied their complicity in the crime in their statements under Section 313 of the Criminal Procedure Code and stated that they have been falsely implicated on account of enmity. The accused, also produced three witnesses in defence before the Trial Court. 22. D.W. 1 Safik Ahmad was the Jeep driver who drove the injured from his house with the help of Rashid and Naviyash to the Police Station Mahuli and thereafter to the P.H.C. Nath Nagar and District Hospital, Basti. He stated that the injured was in a very precarious condition and was not in a position to speak at the time when he drove him in his jeep to the police station. 23. D.W. 2 Miraz Ahmed was examined by the defence to prove the relationship of P.W. 1 Sirajul Haq with the deceased, Mohammed Haroon. He was married to Rait Ullah, the real sister of the deceased Mohammad Haroon. 24. D.W. 3 Menhi Hasan was also examined to prove the relationship of Jabbar with Anwar. He stated that the mother of Jabbar belonged to Chhitahi and not to village Bhagwatipur where the deponent resided. 25. 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 2.8.1984 convicted and sentenced the accused appellants, hence the present appeal. 26. Shri G.S. Chaturvedi, learned counsel for the appellants has stated that the entire story has been cooked up by the prosecution and the appellants have been falsely implicated in the case. He further submitted that the post-mortem report clearly suggests that the deceased after receiving such serious and grievous injuries damaging his internal organs would not have been in a position to speak anything. False story was set up by the prosecution after due deliberation and consultation that the injured himself had dictated the First Information Report immediately after the incident. He further submitted that both the eye-witnesses i.e. P.W. 1- Sirujul Haq and P.W. 2- Jabbar are the chance witnesses and they have been set up by the prosecution at the scene of occurrence to give credibility to the prosecution story. He further submitted that both the eye-witnesses i.e. P.W. 1- Sirujul Haq and P.W. 2- Jabbar are the chance witnesses and they have been set up by the prosecution at the scene of occurrence to give credibility to the prosecution story. He further submitted that the evidence on record clearly shows that there was bitter enmity between the accused side and the complainant side, as such, the alleged eye-witness namely Sirujul Haq and Jabbar accompanying the deceased would not have been spared by the assailants had they been present on the spot alongwith the deceased Mohd. Haroon. He further submitted that D.W. 1- Safiq Ahmad, who was the driver of the alleged Jeep by which the deceased was taken to the Hospital, had clearly stated in his testimony that the deceased after receiving such a grievous and serious multiple external injuries and injuries to his internal organs would not have been in a position to speak anything. It was further submitted that the prosecution witnesses were interested persons, as such it is very risky to rely on their evidence for holding the accused persons guilty. He further submitted that the scribe of the First Information Report had not been produced, as such, a presumption should have been drawn against the prosecution case. He further submitted that the General Diary (G.D) prepared on the fateful night with regard to the commission of the crime clearly shows that neither P.W. 1 nor any witness of fact or a scribe of the FIR was present at the police station. He further submitted that the time of death of the deceased is also disputed. The timing of death mentioned in the Form 13 is also on hearsay basis. He further submitted that the incident had allegedly taken place in the night of 17.11.1981, as such, the statement of the witnesses should have been recorded either on 17.11.1981 or at the most on the next date i.e. 18.11.1981 but the statement of eye-witnesses were recorded belatedly after two days i.e. on 19.11.1981, as such, it cast cloud of deep suspicion on the prosecution story. He further submitted that neither the scribe of the FIR nor the constable who allegedly took the deceased to the Primary Health Centre and later on to the Hospital and thereafter to the Police Station after his death, were produced by the prosecution to prove the time of death and signature of the deceased on the alleged FIR which was allegedly made at the bottom of the FIR, much below the name of the author (deceased’s name) of FIR as such there was some space between the last writing and his alleged signature. This factor also casts suspicion on the veracity of the prosecution story that FIR was lodged by the deceased himself. 27. Per contra, Shri Rajeev Gupta, learned AGA submitted that there was a dagger drawn enmity between the accused side and the complainant side and a number of litigation were going on between them, as such, there was a strong motive for the accused appellants to commit the alleged crime. He further submitted that the First Information Report was lodged with utmost promptness without any chance of deliberation and consultations and the FIR was scribed at the dictation of the deceased who has stated about the cause and circumstances behind the occurrence which led to the incident. Hence, the FIR was admissible as dying declaration under Section 32 of the Evidence Act. In support of his contention, he relied upon the deposition of the concerned Doctor, who performed the autopsy of the dead body, who has stated in his cross-examination that the deceased could have spoken for two or three hours before his death. He further relied upon the statement of the Investigation Officer, who appeared as P.W. 9 and has stated that he had recorded the statement of the deceased when he reached the Police Station Mahuli and submitted his FIR. He further submitted that the prosecution has successfully proved the guilt of the accused appellants and the defence has miserably failed to create any substantial dent in the prosecution story. 28. Heard Shri G.S. Chaturvedi, learned Senior Advocate assisted by Shri Samit Gopal and Shri S.U. Khan, learned counsel for the appellants and Shri Rajeev Gupta, learned AGA appearing on behalf of the State. 29. 28. Heard Shri G.S. Chaturvedi, learned Senior Advocate assisted by Shri Samit Gopal and Shri S.U. Khan, learned counsel for the appellants and Shri Rajeev Gupta, learned AGA appearing on behalf of the State. 29. Perusal of the First Information Report as well as the testimonies of the P.W.1 Sirajul Haq and P.W. 2- Jabbar indicates that the accused persons were having bitter enmity with the deceased Haroon as well as P.W. 1 and P.W. 2 and number of criminal cases including the civil case were going on between the parties. This fact has not been denied by the learned AGA. The detailed facts of the case have been stated in the earlier part of the judgment, we need not repeat them at length. 30. The first and foremost submission of the learned counsel for the appellants is that since the deceased had suffered serious and grievous injuries, damaging his internal organs, he would not have been in a position to speak anything let alone dictating the long detailed report to the alleged scribe (Jabbad Khan) of the FIR immediately after the alleged incident. In order to substantiate his argument learned counsel for the appellants has referred to the ante-mortem injuries of the deceased as contained in the post-mortem report. For ready reference the injuries are extracted herein below : Ante-mortem injuries (1) Gun shot wound (wound of entry) five in number in an area of 9 cm x 8 cm on the front and lower part of abdomen, just below umblicus, each measuring 1 cm x 1 cm x abdominal cavity deep. Margins inverted, blackening and charring present around the wound. Directions - From right to left and slightly downward. On Opening (a) Peritoneum punctured at multiple places. (b) Large and small intestine punctured at multiple places through and through. (c) Left side iliac bone broken into multiple places. Five large metallic pellets recovered from the left side and lateral part of lower abdominal wall. 31. Directions - From right to left and slightly downward. On Opening (a) Peritoneum punctured at multiple places. (b) Large and small intestine punctured at multiple places through and through. (c) Left side iliac bone broken into multiple places. Five large metallic pellets recovered from the left side and lateral part of lower abdominal wall. 31. At this stage, it would be also useful to quote the relevant portion of the statement of the Doctor, who conducted the post-mortem of the deceased, which reads as under : Þe`R;q dk le; tks eSaus fy[kk gS mlesa 3&4 ?kaVs dk varj gks ldrk gS] 1 cts jkf= ls ysdj djhc lk<+s pkj ;k ikap cts lqcg ds cp e`R;q laHkkfor gS] LVS.MMZ osiu ls >qylu djhc 1 QqV ds vanj vk ldrh gS] weapon ds ysEl\ ckjs esa fof'kV Kku ugha gS] varfM+;ksa esa isV ds lkFk cM+h&cM+h jDr oguh; pyrh gS] mlesa Nsn gks x;k Fkk] fdruh pksV yxus ij dksbZ vkneh cksy ik,xk bldh uki ugha gS] bl dsl esa 2@3 ?kaVs rd e`rd cksy ldrk Fkk dqN u dqN] ml le; dh daMh'ku ns[kus okyk gh crk ldrk gS fd fdruk cksy ldrk Fkk] ukeZy (sic) ugha jgsxkAÞ 32. Learned counsel for the appellant in order to further fortify his argument has referred to the testimony of the D.W. 1- Safiq, who admittedly was a driver of the Jeep and had taken the deceased in his Jeep to the Police Station as well as thereafter to the Hospital at Basti. In the light of the aforesaid facts stated herein above, this Court has to examine whether the deceased was in a position to dictate the FIR to the alleged scribe. 33. Perusal of the ante-mortem injuries as mentioned in the post-mortem report clearly goes to show that the deceased had sustained gun shot wound five in number in an area of 9 cms X 8 cms on the front and lower part of abdomen just below unblicus, each measuring 1 cm X 1 cm X abdominal cavity deep. Blackening and charring was present around the wound. Ante-mortem injuries of the deceased further reveals that peritoneum was punctured at multiple places. Large and small intestine punctured at multiple places through and through. Left side iliac bone was broken into multiple places. Five large metallic pellets recovered from the left side and lateral part of lower abdominal wall. 34. Blackening and charring was present around the wound. Ante-mortem injuries of the deceased further reveals that peritoneum was punctured at multiple places. Large and small intestine punctured at multiple places through and through. Left side iliac bone was broken into multiple places. Five large metallic pellets recovered from the left side and lateral part of lower abdominal wall. 34. The Doctor, who conducted the post-mortem of the deceased in his testimony has deposed (as extracted herein above) that in the internal organ of the abdomen number of blood veins were perforated and further stated that after the incident the injured could have spoken a little bit for 2-3 hours. The FIR contains graphic details of the entire occurrence and care has been taken not to omit even the minutes detail. Perusal of the FIR shows that it was a long detailed FIR stating the names and addresses of the accused persons as well as about the previous enmity between the rival parties including the details of the criminal cases filed against each other. He thereafter gave details and circumstances of the incident, and the manner of assault as well as the place and the exact time of the incident. He did not also forget to mention that electric bulb was burning near the “Choti Masjid”. In view of the aforesaid, we are of the opinion that after receiving so grave and serious injuries in his internal organ fired at him from a point blank range, the deceased would not have been in a position to speak let alone dictating the long detailed FIR. 35. We are also fortified in our view by the fact that D.W. 1 Safiq, who allegedly was a driver of the Jeep, categorically sated in his deposition that the deceased was not at all in a position to speak anything after the incident and this statement of the D.W.1, Jeep Driver, was not challenged by the prosecution during his cross-examination. 36. It is also very pertinent to note that one most material witness i.e. Jabbad Khan scribe was not produced by the prosecution and no reason whatsoever has been given by the prosecution for withholding this material witness from the Court. 36. It is also very pertinent to note that one most material witness i.e. Jabbad Khan scribe was not produced by the prosecution and no reason whatsoever has been given by the prosecution for withholding this material witness from the Court. Non examination of the witnesses, scribe and the police personnel (who accompanied the deceased to the hospital and after his death to the police station) without any explanation by the prosecution give rise to an adverse inference under Section 114(g) of the Evidence Act against the prosecution that had they been examined, their evidence would have been unfavorable to the prosecution. 37. As per the medical report the intestine and the other internal organ of the deceased were badly damaged due to gun shot injury. The theory that the FIR was scribed on the oral dictation of the deceased does not inspire confidence and even prima facie satisfaction of the Court is not made out and the same appears to be a concocted one. Our view also stands substantiated by the deposition of the Driver D.W. 1- Safiq Ahmad (who had carried the injured from his house to the police station and thereafter to the Primary Health Centre) that the injured was not in a position to speak at the time when he carried him on his Jeep to the Police Station. 38. The so called witness P.W. 2 Jabbar admittedly did not accompany the deceased and according to him immediately after the incident he fled away to his house and remained there till the next day. Thus, we come to the conclusion that the deceased would not have been in a position to speak after the incident let alone dictating a long detailed FIR and the story of the prosecution that the FIR was dictated by the deceased in such a critical condition becomes very doubtful. 39. The next question we have to examine as to whether P.W. 1 Sirajul Haq and P.W. 2 Jabbar were present at the spot at the time of incident. Perusal of the testimonies of the P.W. 1 and P.W. 2 shows that they were the chance witnesses. 39. The next question we have to examine as to whether P.W. 1 Sirajul Haq and P.W. 2 Jabbar were present at the spot at the time of incident. Perusal of the testimonies of the P.W. 1 and P.W. 2 shows that they were the chance witnesses. According to P.W. 1 on the fateful night he had gone to the market at Mahuli on cycle to purchase clothes for his wife but hardly after visiting one shop he went to the shop of the deceased on cycle and stayed there up to 9 p.m. and in between the P.W. 2 Jabbar also arrived at the shop of the Haroon (deceased) and proceeded on foot in the night hours towards his home in the company of P.W. 2 Jabbar and the deceased and leaving behind his cycle. The aforesaid conduct of the P.W. 1 Sirajul Haq further creates doubt about the veracity of the statement of the P.w. 1 that he accompanied the deceased at the time of occurrence. It appears that the aforesaid story has been concocted by the prosecution to justify his presence on the spot and create an eye-witness of the incident. It does not appeal to us that P.w. 1 Sirajul Haq would leave his cycle at somebody’s place and walk back with the deceased and P.W. 2 to his house in the night hours especially when they had apprehension of danger to their life. 40. It is also very pertinent to note that admittedly P.W. 1 and P.W. 2 were also having bitter enmity with the accused, however no justification has been given by the prosecution as to why P.W.1 and P.W. 2 were spared by the accused persons who were four in number. This important aspect of the case further deepens the suspicion with regard to the credibility of the prosecution story with regard to the presence of the eye-witness on the spot. 41. It may be further noticed that the incident had taken place in the night of 17.11.1981 and therefore the statement of the witnesses in normal course should have been recorded either on 17.11.1981 or on the next date i.e. 18.11.1981 but the statement of the alleged eye-witnesses was recorded on 19.11.1981. In this regard no explanation has been given by the Investigating Officer as to why such inordinate delay was made by him in recording the statement of the witnesses. In this regard no explanation has been given by the Investigating Officer as to why such inordinate delay was made by him in recording the statement of the witnesses. The aforesaid fact also creates a deep dent in the prosecution story. 42. It is also relevant to note the testimony of P.W. 4- Jayanti Lal, the Head Constable posted at P.S. Mahuli, who prepared the chik report and recorded in the GD. Before examining and analyzing his evidence it would be useful to reproduce the extract of his testimony, which reads as follows : Þrgjhj fjiksVZ esjs lkeus ugha fy[kh xbZ Fkh tks Fkkus ij nh xbZ FkhA ftl thi ij gk:u vk;k FkkA mlds lkFk vkus okyksa dk uke eSaus fy[kk Fkk muls iw¡p dj fy[kk FkkA pkyd lQhd vgen o lkFk esa j'khn o ufc;kl FksA vkSj dksbZ ugha FkkA eqdnes fy[kus ds ckn thi Hkst fn;k FkkA de ls de vk/kk ?kaVk yxk FkkA gk:u ds fpB~Bh et:ch ckuh FkkA gks ldrk gS] MkWDVj j[k fy, gksA fpB~Bh et:ch eSaus cuk;k Fkk ftldk mYys[k G.D. esa gSAÞ 43. The aforesaid testimony of P.W. 4- Jayanti Lal, who had prepared the G.D clearly shows that the alleged FIR, which was allegedly submitted in the Police Station, was not written in his presence. He further deposed that the names of the persons accompanying Haroon on Jeep was noted by him who on asking disclosed their names. He further stated that apart from D.W. 1- Safiq, the driver of the Jeep, Rashid and Nabiyas, there was no one else in the Jeep at the time of lodging FIR and he took around half an hour in registering the case. It is also notable that P.W. 1 in his statement has very categorically stated that the deceased did not alight from the Jeep and they called the Head Moharrir at the Jeep and the copy of FIR, which was allegedly dictated orally earlier to the scribe Jabbad, was handed over to him. It is also notable that P.W. 1 in his statement has very categorically stated that the deceased did not alight from the Jeep and they called the Head Moharrir at the Jeep and the copy of FIR, which was allegedly dictated orally earlier to the scribe Jabbad, was handed over to him. For ready reference the extract of the testimony of P.W. 1 in this regard is quoted below : Þ;g dguk xyr gS dh ufc;kl dk ?kj g;kr eksgEen dh ?kj ls ,d QykZax dh nwjh ij gSA tc eSa ufc;kl ds ;gk¡ igqapk rc os tx jgs Fks] 5 feuV ds ckn eS ufc;kl ds ;gk¡ ls ykSV vk;kA ufc;kl gk:u ds ikl djhc 20 feuV ckn vk;sA bl chp gk:u ogh ij iM+s jgs] vkSj mBdj cSBs FksA tc ufc;kl vk;s] rc mUgsa ogka ls mBkdj ge yksx pd jksM ij ys tkdj thi ij cSBk,] eSa Hkh lkFk&lkFk idM+ dj thi rd ys x;k Fkk] esjs gkFk diM+s esa muds idM+us ls dksbZ [kwu ugha yxkA Fkkus ij thi ls vkdj eSa thi ls mrkjk Fkk] esjk uke fdlh flikgh Fkkusnkj ;k nhoku us thi ls mrkjus ij ugha iwNk] thi esa esjs vykok j'khn] b'gkd] tCckj vkSj ufc;kl Fks] bu yksxksa dk uke Hkh Fkkus ij fdlh us ugha iwNkA Fkkus ij gk:u thi ls ugha mrkjs] nhoku th dks cqykdj fyf[kr fjiksVZ tks tCckj ls fy[kok;ka Fkk fn,] FkksM+h nsj ds ckn njksxk th us ,d iqfyl fn;k] ge yksV vLirky x,A 20&25 feuV thi ogk :dh Fkh] eS ;g ugha crk ldrk fd thi 20&25 feuV rd ogka D;ksa :dh jgh] eSa [kqn ijs'kku Fkk] eSa njksxk th ls dSls iw¡N ldrk Fkk] eSaus njksxk th ls dksbZ ckrphr ugha fd;k] thi ds vanj ds fdlh vkneh dks njksxk th ls ckrphr djrs ugha ns[kkAÞ 44. The aforesaid glaring facts as borne out from the statements of P.W. 1, P.W. 4 and D.W. 1 clearly demolishes the case of the prosecution that the FIR was dictated by the deceased himself and P.W. 1 was present at the Police Station alongwith the deceased at the time of lodging of the FIR and further that the statements of the deceased as well as P.W. 1 were recorded by the Investigating Officer in the Police Station after the deceased alighted from the Jeep. It is worth noticing that the statement of the Investigating Officer is also contradictory and inconsistent with the statements of of the witnesses P.W.1, P.W. 4 as well as D.W. 1 and this material contradiction in testimonies of the witnesses further creates serious dent in the prosecution story that the P.W. 1 was either present on the spot or had accompanied the deceased to the Police Station. 45. It is also notable that according to P.W. 1 he did not go to Basti to get the deceased admitted in the Hospital but he left the Jeep mid way and returned with his son to his village in order to console the family members of the deceased. The conduct of the P.W. 1 in this regard appears to be very unnatural as at that time the deceased was alive and he could not have left him in a precarious condition and return to the village just to console the family members of the deceased and therefore there was no justifiable reason for not having accompanied the deceased Haroon to the hospital. 46. It is also pertinent to mention that in Form No. 13, it has been mentioned that the deceased died at 3 O’clock in the night on the way before reaching the hospital. The evidence available on the record shows that at 11.45 a.m. he was examined at the Primary Health Centre and thereafter was referred to the District Hospital, Basti, which was hardly 30 Kms from the spot and there was no reason as to why they took more three hours to reach the hospital. It may be further considered that in case if the deceased died at 3 O’clock in the night then why his dead body was taken to the police station Basti at 6-7 O’clock in the morning after several hours and further there is no whisper on record as to where they kept the dead body between 3 a.m. and 6-7 O’clock. There is no explanation in this regard. The constable escorting the deceased was not even produced before the Court. There is no explanation in this regard. The constable escorting the deceased was not even produced before the Court. The time of death of the deceased is also disputed because if the deceased had died on the way to the hospital, the information to that effect would have been given immediately to the police station Mahuli and his dead body should have been brought back to the police station but it was not done so and instead the deceased was taken to the Kotwali Basti in the morning. The timing of death mentioned in Form 13 is also on hearsay basis. 47. We agree with the contention of the learned counsel for appellants that purposely it has been shown by the prosecution that the FIR was dictated by the deceased to the scribe in order to show that the FIR be treated as dying declaration. In normal circumstances, the FIR should have been lodged by the eye-witnesses and not by the injured who was in a very critical condition after suffering grave and serious injuries in his internal organs. Thus the entire story set up by the prosecution is not consistent with the natural conduct of the eye-witness. The prosecution story is shaken by the variety of reasons as enumerated herein above. The various glaring contradiction in the testimonies of the witnesses goes to show that the entire prosecution story has been cooked up and by no stretch of imagination we can hold the accused guilty of committing the alleged offence. The Court below has ignored the glaring facts and circumstances of the case while convicting the accused appellants. 48. 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-appellants 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-appellants. 49. 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-appellants are entitled to benefit of doubt and acquittal. 50. In our considered opinion the reasons given by the Trial Court are not sufficient to convict the accused-appellants. 49. 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-appellants are entitled to benefit of doubt and acquittal. 50. On the basis of aforesaid discussion in our considered opinion and also applying the rule of caution, conviction of the accused-appellants namely Rafi Ullah, Rabi Ahmad and Alimul Kadar alias Dhil Dhil cannot be sustained and is liable to be set-aside and in the circumstances of the case, the accused-appellants deserves acquittal. 51. The impugned judgment and order dated 2.8.1984 passed by Vth Additional Sessions Judge, Basti in Sessions Trial Nos. 157 of 1982 and 76 of 1983 is set-aside and the appellants namely Rafi Ullah, Rabi Ahmad and Alimul Kadar alias Dhil Dhil is acquitted of the charges levelled against them and their conviction and sentence are hereby quashed and set-aside. The appellants namely Rafi Ullah, Rabi Ahmad and Alimul Kadar alias Dhil Dhil are on bail. They need not to surrender. Their personal and surety bonds are hereby cancelled and sureties are discharged from their liability. 52. In the result, we find and hold that the present appeal has got merit and the appeal is allowed. 53. Let a copy of this judgment alongwith the trial Court record be sent to the Court concerned for compliance.