JUDGMENT Hon’ble Kaushal Jayendra Thaker, J.—This appeal is being preferred by two accused, who came to be convicted by learned Special Judge/Additional Sessions Judge, Azamgarh, in Sessions Trial No. 268 of 1984. Both the accused were convicted for life imprisonment. Parshuram was convicted under Section 302 IPC whereas Tribeni was convicted under Section 302 read with Section 34 of Indian Penal Code. 2. The appeal came to be filed in 1984. However, the same was placed before us for hearing exactly after 31 years and we have heard the learned Counsel for the parties at length. 3. The facts as they emerge are that one Ram Kuwar Singh Station-master Railway Station, Azamgarh, at about 09.00 a.m. on 29.12.1983 received information from Deep Narain, gate-man of gate No. 29-A that a Dudhwala on a cycle was murdered by a gun-fire. He promptly informed the Senior Superintendent of Police, Azamgarh, Station Officer P.S. Sidhari and sent a memo Ext.Ka.1 to S.I., G.R.P., Azamgarh, Gate No. 29-A which is at a distance of one and a half furlongs from the Railway Station, Azamgarh. Memo sent by the PW1 - Ram Kuwar Singh was received at G.R.P., Azamgarh, at about 09.15 a.m. The head constable and other police personnel were sent to the place of occurrence. The Station Officer of P.S., G.R.P., Mau, was intimated on phone by the police out post, Azamgarh. Chick F.I.R. Ext. Ka.5 was prepared on its basis. At about 11.30 a.m. Harbansh lodged written report Ext.Ka.6. The information on phone was received at P.S., G.R.P., Mau, at 09.50 a.m. and an entry was made in the General Diary Ext. Ka.7. The prosecution case about the incident of murder was that a case under Section 107 Cr.P.C. was pending against Ramji (deceased), his brother Harbansh and the accused. Shiv Chand, Parshuram and others manipulated the forged sale-deed of the property of one Shubhagi. A suit for cancellation of the aforesaid deed was filed by Ramdaras and Rajpat, who were grand son of Shubhagi and because the deceased was doing pairvi of that case in support of Ramdaras and Rajpat, Parshuram and others were annoyed because of this. 4. The prosecution was moved into motion and after recording statements and preparing Panchayatnama and being satisfied that the offence was committed, a charge-sheet was laid against both the accused. 4. The prosecution was moved into motion and after recording statements and preparing Panchayatnama and being satisfied that the offence was committed, a charge-sheet was laid against both the accused. The Judicial Magistrate committed the case to the Court of Sessions as it was Sessions Trialable case. 5. The charge came to be framed on 29.8.1984 by the learned Judge, which reads as follows : “Firstly, that you Parshu Ram on 29.12.83 at about 8.45 a.m. at Railway gate No. 29-A, in the West of Railway Station, Azamgarh, O.P., G.R.P., Azamgarh, P.S., G.R.P., Mau, district Azamgarh, committed murder intentionally or knowingly causing the death of Ram Ji and thereby committed an offence punishable under Section 302 IPC and within the cognizance of this Court. Secondly, that on the aforesaid date, time and place, you Tribunal alongwith your co-accused Parshu Ram in furtherance of common intention of both, committed murder intentionally or knowingly causing the death of Ram Ji and thereby committed an offence punishable under Section 302read with 34 IPC and within the cognizance of this Court.” 6. The accused pleaded not guilty and wanted to be tried. 7. The prosecution examined 9 witnesses, in support of the charge framed, who are as follows : 1 Deposition of Ram Kunwar Singh 26.7.1985 PW-1 2 Deposition of Harbansh 26.7.1985 PW-2 3 Deposition of Harbansh 27.7.1985 PW-2 4 Deposition of Kalpanath 27.7.1985 PW-3 5 Deposition of Kalpanath 30.7.1985 PW-3 6 Deposition of Ramdaras 30.7.1985 PW-4 7 Deposition of Dr. S.C. Tekriwal 30.7.1985 PW-5 8 Deposition of Ramesh Chand 30.7.1985 PW-6 9 Deposition of Sheomurti Ram 13.8.1985 PW-7 10 Deposition of Narain Ji Dube 13.8.1985 PW-8 11 Deposition of Gopal Singh S.I. 13.8.1985 PW-9 8. The prosecution even produced documentary evidence to bring home the charges against the accused person which are as under : 1 F.I.R. 29.12.1983 Ext.Ka.5 2 Written Report. 29.12.1983 Ext.Ka.2 3 Recovery memo of Cycle & Milk Can. 29.12.1983 Ext.Ka.15 4 Recovery memo of ‘Shoes’, ‘Chadar’ and ‘Gamcha’. 29.12.1983 Ext.Ka.16 5 Recovery Memo of Plain ‘Gitti’ & Blood Stained ‘Gitti’. 29.12.1983 Ext.Ka.17 6 P.M. Report. 30.12.1983 Ext.Ka.3 7 Report of the Chemical Examiner. 19.10.1984 8 ‘Panchayatnama’. 29.12.1983 9. The accused were examined under Section 313 of Cr.P.C., Their answer was one of denial and they contended that they were falsely implicated. The witnesses were inimical to them. The accused also produced certain documents which are at page Nos. 29.12.1983 Ext.Ka.17 6 P.M. Report. 30.12.1983 Ext.Ka.3 7 Report of the Chemical Examiner. 19.10.1984 8 ‘Panchayatnama’. 29.12.1983 9. The accused were examined under Section 313 of Cr.P.C., Their answer was one of denial and they contended that they were falsely implicated. The witnesses were inimical to them. The accused also produced certain documents which are at page Nos. 53 to 56 of paper-book to show that the so called eye-witnesses were involved in different cases pending between the accused and them. 10. The two main questions which arise for our consideration in this appeal, are firstly, whether the death was a homicidal death; and secondly, whether the death was caused by the accused in furtherance of their common intention to do away with the deceased. 11. The provisions of sub-section (2) of Section 299 of the Indian Penal Code read with the facts which have emerged shows the anti mortem injury which shows internal as well as external injuries. The place and time of the death has not been seriously disputed. 12. PW-1 - Ram Kumar Singh, the then Station-master, Azamgarh, deposed that at about 09.00 a.m. on 29.12.1983 he was informed by the gate-man of gate No. 29-A that one Doodhwala was done to death by gun-shot. This information was passed by him to Senior Superintendent of Police and Station Officer Sidhari on phone. The first question is whether it was homicidal death or some other death. The post-mortem report is at Ext.Ka.3. The doctor, who has been examined, found the following ante-mortem injuries on the deceased person, which has been received are as under : “1. Gun shot wound of enterance 1.5 cm x 1 cm x cavity deep back left side, 3 cm from midline, 25 cm below root of neck (7th cervical, blackening, tatooing and scorching absent Edged of would inveted. On internal examination the doctor found the bullet as traversed from right to left and has pearced through the heart right lung and V and VII ribs. The bullet Ext.2 was extracted from the dead body of the deceased and was sent to S.S.P., Azamgarh. According to the doctor Tekriwal the deceased could have died on 29.12.1983 at about 8.45 a.m. He prepared post-mortem report Ext. Ka.3.” 13. Therefore, it is proved that it was homicidal death. We concur with learned Sessions Judge on this aspect without much discussion. 14. According to the doctor Tekriwal the deceased could have died on 29.12.1983 at about 8.45 a.m. He prepared post-mortem report Ext. Ka.3.” 13. Therefore, it is proved that it was homicidal death. We concur with learned Sessions Judge on this aspect without much discussion. 14. The second question is whether the accused are the one who had committed the murder for that we will have to scan the evidence. We have perused the evidence and we have been taken through the oral evidence of 9 witnesses examined by the prosecution and documentary evidence which were produced. Before adverting to the evidence, one thing is clear and undisputed that the police has not been able to recover the fire-arm with which the deceased was done to death. No incriminating article has been recovered from the possession of either of the accused as a matter of fact which was not disputed by the prosecution as is submitted by the learned Counsel. The place and time of occurrence are not disputed. Learned Counsel for the appellant has submitted that Kalpanath, Ramdaras and PW-2 Harbansh were all inimical to the accused, their oral testimony itself would prove that they are chance witnesses, who have been got up only after some time. The report given by PW-2 also shows that PW-3 and PW-4 were not present at the time of incident. In the testimony PW-3 stated that he had accompanied the deceased to sell milk. The presence of PW-3 and PW-4 is very doubtful as they continued to do their work though they witnessed Ram Ji being killed in front of them which shows that their presence, behaviour and conduct were unnatural and they left the place even without trying to catch the accused. 15. It is submitted by the learned Counsel for appellants that the alleged report given by PW-2 at 11.30 a.m. at Chowki GRP, Azamgarh, is also doubtful and it is anti time as PW-9 - the Investigating Officer reached the spot at 12.00 Noon and he does not mention that the report is received at 11.30 a.m. It is further submitted that the F.I.R. received at 9.30 was numbered as Nil. It was not even assigned as a criminal number. It was not even assigned as a criminal number. Even at the time of inquest report at 12.30 p.m. which was continued till 03.00 p.m., the Panchayatnama bears Nill number and, therefore, it goes to show that the so called report of PW-2 at 11.30 a.m. was not in existence and there is a serious doubt about it’s veracity. It is anti timed. It is further submitted that PW-3 and PW-4 claimed themselves to be the eye-witnesses, yet their statement has been recorded at a much later stage i.e. 5.00 p.m. for PW-3 and on the next day i.e. 30.12.1983 at Police Station for PW-4. This factum again goes to show that the Investigating Officer, who had recorded the statement of other persons, who were present at the place of incident, had recorded the statement of these two so called eye-witnesses because of the fact that by that time, the report of PW2 was not in existence and PW3 and PW4 were not considered as eye-witness and only subsequently due to strong enmity with the appellants, PW3 and PW4 were got up, the prosecution case has been developed to falsely implicate the appellants. This factum also gets corroborated from the perusal of the site plan which has been prepared by PW9 at the instance of the witnesses who he had interrogated when he had reached the place of incident, but the presence of PW3 and PW4, being the eye-witnesses, does not find place in the said site plan which fortifies the fact that they were not present at that point of time. There is an admitted rivalry between the appellants and PW3 and PW4 and from the careful perusal of testimony of these two so called eye-witnesses, it appears that the appellants had all the occasion to open fire on these person also, yet they only threatened them of not coming close and made their escape good. This appears to be a highly improbable and unnatural conduct on the part of the appellants, since they were not of so much on inimical terms with the deceased as they were with the witnesses PW3 and PW4, especially after the fact that they would have seen one of their associate being killed by the appellants, made their escape good. This appears to be a highly improbable and unnatural conduct on the part of the appellants, since they were not of so much on inimical terms with the deceased as they were with the witnesses PW3 and PW4, especially after the fact that they would have seen one of their associate being killed by the appellants, made their escape good. On this aspect there is substantial improvement in the testimony before the Court of PW3 and PW4, who have said about the factum of the appellants threatening them of not approaching any closer for the first time before the Trial Court and they have not stated so, anywhere previously in their statement recorded under Section 161 Cr.P.C. The prosecution, it seems had deliberately withheld the most natural witness i.e. the Gateman Deep Narain, on whose information, the First Information Report was lodged at GRP Police Station, who had seen the incident and as per his report, some person (singular) has carried out the incident, his non-presence in the Court creates an adverse impression on the prosecution story, who have deliberately tried to suppress the most natural witness thereby, not allowing the true genesis of the case to be disclosed in the Court. 16. Learned Counsel has heavily relied on the decision of M.C. Ali and another v. State of Kerala, JT 2010 (3) SC 626, and has held as under : “Trial Court notices that there is no reason as to why the attackers would allow PW1 to escape. After all they were fifteen persons in a group and had every intention to kill the three members of the opposite group approaching them. The Trial Court also concludes that behaviour of PW1, PW2 and Faizal to continue walking towards the other group even though they were carrying weapons in their hands would not be consistent with normal human conduct. The normal instinct would have been either to retaliate or to run away from the scene. On the basis of the above the Trial Court had formed an opinion that the prosecution had not placed before the Court the exact situation under which the attack had really occurred. This would put a cloud of suspicion over the presence of PW1 at the scene of the crime. In case PW1 was present, he ought to have identified the accused with their respective weapons. This would put a cloud of suspicion over the presence of PW1 at the scene of the crime. In case PW1 was present, he ought to have identified the accused with their respective weapons. If he had fled the scene, he could not have given all the graphic details of the assault, in the FIS, as recorded in the house of CW9. For this reason perhaps PW9 was not in a position to reply to the prescribed query at Sl.12A under Section 174, Criminal Procedure Code while conducting the inquest.” 17. As against this, the learned A.G.A. for the State has submitted that prosecution witnesses have proved the incident. They have proved the presence of the accused at the place of incident. The accused had a motive to do away as Ram Ji had inimical relation with Ramdaras. It is submitted by learned A.G.A. that during trial, prosecution has got examined PW3 - Kalpanath and PW1 - Ramdaras as eye-witnesses, both the above mentioned witnesses are most natural and independent witnesses and their presence at the place of incident were natural and quite probable. Both the witnesses corroborate the entire prosecution story and the manner in which the incident has taken place. Despite the fact that they have been cross-examined at length, the Defence has not able to point out any infirmity or point out any material contradiction in their statements and, thus, they have proved their case to the hilt against the appellants, as such, their testimony inspires confidence and cannot be discarded being reliable witnesses. 18. It is further submitted by learned A.G.A. That PW-2 - Harbansh brother of deceased in his examination of Chief specifically stated that there was strong enmity between deceased and accused persons. Deceased was doing pairvi in case of cancellation of sale-deed which was fraudulently executed by accused persons in favour of his father. 19. It is submitted by the learned A.G.A. that the arguments advanced on behalf of the defence that prosecution has not examined the Gate Keeper Deep Narain on whose information Memo was given and investigation started is of any consequence and the above mentioned argument is not tenable because Gate Keeper Deep Narain did not claim to be eye-witnesses of incident and he merely sent information in respect of the incident. There is no occasion to produce him as witness as such he was not eye-witness. There is no occasion to produce him as witness as such he was not eye-witness. He has heavily relied upon the judgment of Sessions Judge. 20. The First Information Report Ext. Ka-5 by which the investigation started which is given by one Deen Narain, who sent the message to Kesar Singh, who took down the message reads as follows : ^^nhiujk;u us 9 cts lwfpr fd;k gS fd QkVd ij fdlh O;fDr us ikSus ukS cts ,d lkbZfdy lokj nw/k okyk dks xksyh ekj fn;k gSA vkSj og ogh fxjdj ej x;k gSA mldh lwpuk ,l0,l0ih0 vktex<+ ,oa ,l0vks0@fla?kkjh dks Qksu }kjk ns fn;k x;k gS vko';d dk;Zokgh gsrq izsf"kr n0 jke dqoj flag ,l0,e0 fn0 29&12&83^^ 21. It is necessary for this Court to reproduce the same in Hindi as much reliance has been placed on this information which was the starting point of the investigation. It is reproduced in Hindi because it mentions about only one person and not two people as submitted by the learned Counsel for the appellants. The second report is given by Harbansh in which name of Triveni is given and, therefore, this Ext. Ka-5 and Ext. Ka-2 are very important pieces by which the investigation was moved into service. All that is recovered are cans of milk and milk from the place of incident and cycle as per Ext. Ka-15 and one Gamcha and bed-sheet which is Ext. Ka-16. 22. Ka-5 and Ext. Ka-2 are very important pieces by which the investigation was moved into service. All that is recovered are cans of milk and milk from the place of incident and cycle as per Ext. Ka-15 and one Gamcha and bed-sheet which is Ext. Ka-16. 22. Two important witnesses are PW3 and PW4 on whose evidence the learned Trial Judge has believed their presence to be natural and, therefore, we deem it fit to discuss same verbatim as under : ^^ih0MCyw0 3 ¼1½ eS [ksrh dk Hkh dke djrk gwWA o nw/k Hkh casprk gWwA eS vktex<+ jsyos LVs'ku ij tk dj nw/k csprk gwWWA vktex< dk jsyos LVs'ku iYguh eas iM+rk o nqdku oxSjg gWliqj esa iMrk gSA ?kVuk ds fnu eS o jke th nw/k ysdj vkt ls Ms< lky ls dqN vf/kd igys vk jgs FksA jkenjl Hkh ukSdjh ij vk jgs FksA rhuksa vkneh lkbZfdyksa ls vyx vyx vk jgsA eS o jkenjl dqN ihNs Fks o jketh ge yksxksa ls dqN vkxs FksA ml le; djhc ikSus ukS ctk Fkk ge yksx jsyos QkVd ds dqN igys Fks o jketh jsyos QkVd ds vanj vk x;s FksA ;g jsyos QkVd jsyos LVs'ku vktex<+ ls if'pe iM+rk gSA ge yksx 20&25 dne ihNs Fks fd jsyos QkVd ds nhokj ds vkM+ ls nf[ku iwjc ls f=osuh ij'kqjke fudysA f=osuh us dgk fd D;k ns[krs gks ekjksa lkys dksA bl ij ij'kqjke us jketh ds mij dV~Vs Qk;j fd;kA jketh dks pksV yxh vkSj og fxj dj ej x;kA jketh dh lkbZfdy ogh nf[ku rjQ fxj iM+hA jketh dh lkbZfdy ls nw/k ds MCcs jgs o nw/k fxj x;kA nksuks eqyfteku ft/kj ls vk;s m/kj gh Hkkx x;sA ge yksx lkbZfdy ls mrjs vkSj eqyfteku dks idM+us ds fy;s vkxs c<+s rks bl ij eqyfteku us dgk fd vxj vkxs c<+s rks xksyh ekj nWwxkA eS ?kVukLFky ij gh jg x;k vkSj jke th ds HkkbZ ca'kw ds ;gkW lwpuk ds fy;s jkenjl dks HkstkA jketh dh lkbZfdy tks ?kVuk ds le; fxjh bDt 1 gSA blls nw/k ds MCcs vc Hkh Vaxs gSA ¼2½ ?kVuk ds igys ij'kqjke o f=osuh vkfn us eq>s ekjk FkkA ftldh fjiksVZ eSus fd;k FkkA og eqdnek vHkh lh0ts0,e0 ds ;gkW py ugh jgk gSA eSa jkr esa ekjk x;k FkkA ?kVuk ds igys 107 tk0 QkS0 dk eqdnek pyk Fkk ftlesa ,d rjQ eSa jkenjl o xkao ds vU; yksx Hkh Fks o nwljh rjQ f=osuh o ij'kqjke vkfn FksA ;g 107 tk0 QkS0 dk eqdnek [kRe gks x;kA 3& ?kVuk ds fnu eSaus xzkgdks nw/k ys tkdj cspk FkkA eSa nw/k jsyos LVs'ku ij nqdkunkjksa dks nsrk gwWA fuf'pr ,d txg ugha gSA eSa ml fnu nw/k ys tkdj fn;kA fdldks fdldks fn;k mudk uke ;kn ugha gSA 10&12 lsj ds djhc nw/k jgrk gSA ?kVuk ds fnu vanktu 10&15 lsj yk;k FkkA dqN fn;k o dqN ckdh jg x;k FkkA cpk nw/k dkSu ys x;k D;k gqvk dqN [;ky ugha gS D;ksafd ml fnu ijs'kkuh esa iM+ x;kA ;g Hkh [;ky ugha gS fd fdruk nw/k cspus ls cp x;k FkkA nw/k cspus ds ckn eSa ekSds ij x;kA fQj dgk fd eSa LVs'ku iqfyl pkSdh ij x;k tgkW yk'k pyh vkbZ FkhA bruk [;ky ugha fd eSa iqfyl pkSdh ij dc igqWpkA 4& gfjoa'k ls esjh eqykdkr igys igy ?kVuk LFky ij gqbZ tgkW xksyh pyh FkhA gfjoa'k ds vkus ds ckn eSa ogkW ls gVkA gjoa'k o jkenjl xkWo ls igys vk;s mlds ckn xkWo ls cgqr yksx vk x;sA jkenjl o gjoa'k ?kVuk ds fdrus nsj ckn ykSVs ;g ;kn ugha gSA exj os x;s vkSj vk;sA eSa ugha crk ldrk fd os 15&20 feuV vk;s ;k vk/kk ?kaVk le; yxk eSa ugha crk ldrkA tc rd os xkWo ls ugh vk;s eSa ?kVuk LFky ij FkkA xksyh pyus ds ckn xsV eSau Hkh vk x;k Fkk ;k ugha eSa ugha igpku ldk D;ksafd cgqr ls yksx vk x;s FksA ?kVuk ds ckn igys Fkkus okys flikgh vk;sA th0vkj0ih0 okys ekSds ij cgqr ckn esa vk;sA fl/kkjh Fkkus ds flikgh vk;s rks crk;s fd os fl/kkjh ds flikgh gSA njksxk th vk;s FksA th0vkj0ih0 okys dc vk;s eq>s /;ku ugha gSA igys jkenjl o gjoa'k vk;s rc fl/kkjh Fkkus ds flikgh vk;s eSus Fkkus ds flikfg;ksa ls dqN ugha crk;k vkSj u mUgksaus eq>ls dqN iwNk Fkkus ds flikgh gjoa'k o jkenjl ls Hkh dqN ugha iwNkA Fkkus ds flikgh yk'k dks jsyos LVs'ku ij ugha ys x;sA th0vkj0ih0 okys ckn esa vk;sA bruk /;ku ugha fd th0vkj0ih0 okys flikgh yk'k Fkkus ys x;s ;k fl/kkjh Fkkus ds flikgh yk'k Fkkus ys x;sA 5& njskxk th us esjk c;ku fy;k FkkA njksxk th ls eSus crk;k Fkk fd eSa nw/k ysdj lkFk gh ?kj ls jokuk gqvkA ;g ckr ;fn njksxk th us ugha fy[kk rks eSa bldh dksbZ otg ugha crk ldrkA ;g dguk xyr gS fd eSa nwèk cspus okyh ckr vkt odhyksa ds fl[kkus ls dg jgk gwWA 6& eSa lM+d ls vktex<+ dh rjQ vk jgk FkkA jsyos ykbu ls 20&25 dne eSa tc nwj Fkk rc canwd dh vkokt gqbZA eqyfteku nhoky ds vkM+ ls fudys vkSj jsyos ykbu ikjdj ds vktex<+ dh rjQ vk;s rc Qk;j fd;sA jsyos ykbu ls 2 dne vkxs c<+dj Qk;j fd;sA tc eqyfteku nhoky ds vkM+ esa FksA rc eSaus mUgsa ugha ns[kkA tc eqyfteku fNis Fks rc eSaus mUgsa ns[kk gh ugha rks ckr eSa dSls lqurkA djhc 3 dne dh nwjh ls egywd dks ekjk x;k ekjus okys egywd ls dksuk fy;s gq;s ihNs FksA egywe tc lkbfdy ls tk jgk Fkk mls xksyh yxh vkSj og fxj x;kA eqyfteku frjNk gks dj egywd dks xksyh ekjkA ekjrs le; eqyfteku lh/kk mRrj gksdj xksyh ekjkA 7& tc egywd dks xksyh yxh rc eSa ejus okys ls 20&25 dne nwj FkkA tc eqyfteku ekj dj Hkkxs rc ge yksx yk'k ds ikl igqWpsA eqyfteku fdruk nwj Hkkx x;s Fks ;g ;kn ugha gS tc ge yksx yk'k ds ikl igqWpsA tc ge yksx 2 gh 4 dne igqWps Fks fd eqyfteku MkWVs vkSj ge yksx :d x;sA eq>s ;kn ugha gS fd eSus njksxk ls crk;k Fkk fd ugha fd eqyfteku eq>s MkWVs Fks rc eSa :d x;k FkkA esjs c;ku esa ;g ckr njksxk th us D;ksa ugha fy[kk bldh dksbZ otg eSa ugha crk ldrkA ;g dguk xyr gS fd eSa fl[kkus ls ;g ckr dg jgk gwW fd eqyfteku eq>s MkWVs FksA ;g dguk xyr gS fd eSus dksbZ ?kVuk ugha ns[kk o jaft'ku >wBh 'kgknr ns jgk gwWA” ^^ih0MCyw0&4 l'kiFk Ck;ku fd;k fd& ¼1½ bl eqdnesa dh ?kVuk vkt ls djhc Ms< lky ls dqN vf/kd gqvk tc gqbZA ?kVuk ds fnu eSa] dYiukFk o jketh xkao ls vktex< ds fy;s vk jgs FksA ge rhuksa vkneh vyx vyx lkbZfdy ij FksA eSa viuh M;wVh ij tk jgk Fkk vkSj os nksuks vkneh viuh viuh lkbZfdy ij nw/k cspus vk jgs FksA djhc ikSus uo cts vktex< jsyos LVs'ku ds if'pe QkVd ij igqpsA jketh eq>ls dqN vkxs FksA eSa o dYiukFk jketh ls 24&25 dne ihNs FkkA ij'kqjke o f=osuh jsyos QkVd ds nf[kuh iwohZ nhokj ls fudysA f=osuh us dgk fd vc D;k ns[krs gks ekjksa lkys dksA bl ij ij'kqjke us dV~Vk ls jketh ij Qk;j dj fn;kA jketh pksV [kkdj lkbZfdy ls fxj x;k vkSj ej x;kA eqyfteku Qk;j ds ckn nf[ku iwjc Hkkx x;sA ge yksx lkbZfdy ls mrj dj eqyfteku dks idM+us ds fy;s dgsA bl ij eqyteku us xksyh ekjus dks dgkA rc ge yksx :d x;sA dYiukFk yk'k ds ikl jg x;sA vkSj eSa jketh ds ?kj x;k vkSj ?kj ij lkjh ckrs gjoa'k ls crk;kA blds ckn gfjoa'k esjs lkFk ykSVsA og osyblk esa viuh nqdku ij jiV fy[kus ds fy;s :d x;s vkSjs eSa ?kVukLFky ij :d x;kA ¼2½ ?kVuk ds vxys fnu njksxk us esjk c;ku fy;k FkkA muls eSus crk;k fn;k Fkk fd eqyfteku eq>s MkVs Fks vkSj /kedh Hkh fn;s Fks fd eq>s xksyh ekj nsxsA ;g eSus /;ku ugha fn;k fd eqyfteku tc eq>s /kedh fn;s rks dV~Vk rkus Fks ;k ughaA ;g ckr njksxk th us ugha fy[kk gks rks eSa bldh dksbZ otg ugha crk ldrkA og dV~Vk djhc ,d QhV yEck FkkA mldh uyh djhc vk/kk ikSu bap jsfM;l dh FkhA tc f=osuh us yydkjk rc eSa muls 15&20 dne nwj FkkA tc f=osuh yydkjk rks eSaus dgk fd /kj yks /kj yksA dYikukFk us Hkh ,sls gh yydkjkA tc geus yydkjk rks jketh ykbu ikj dj mRrj gks x;s FksA tc ge yksx yydkjs rc jketh fxj x;s FksA ge yksxksa ds yydkjus ds igys gh jketh fxj x;s FksA tSls gh jketh fxj x;s geus yydkjkA eqyfteku esjs yydkjus ds igys gh Qk;j dj fn;kA eqyfte dks Qk;j djrs eSaus ns[kk FkkA nhoky 10&12 dne if'pe vk dj ij'kqjke us Qk;j fd;kA ;s mRrj if'pe dkSu ij FksA Bhd if'pe ughaA xksyh pyr le; jketh ls ij'kqjke 3&4 dne ihNs FksA jketh mRrj tk jgs FksA o ij'kqjke nf[ku iwjo FksA nf[ku iwjo ls Qk;j fd;kA fQj dgk fd nf[ku ls Qk;j fd;kA ¼3½ eSa jsyos QkVd ls 15&20 dne nf[ku Fkk] tc xksyh pyhA ;g dguk xyr gksxk fd eSa QkVd ij Fkk rc xksyh pyhA eq>s ;g ;kn ugha fd eSaus njksxk th ls ;g dgk Fkk fd tc eSa jsyos LVs'ku ds if'pe rjQ && xsV ij igqWpk fd vpkud ij'kqjke o f=osuh fudysA** ;g c;ku njksxk th us dSls fy[k fy;k eSa ugha crk ldrkA ¼4½ ?kVuk ds fnu eSa iqfyl ykbu ls ih0MCyw0Mh0 ds rgr esa dke djkuk FkkA eSa esB gwWA eSa nSfud etnwjh ij ukSdj gwWA mu fnuksa dke tkMs+ dk fnu gksus ds ukrs 9&1@2 cts 'kq: gksrk FkkA esjs ?kj ls iqfyl ykbu djhc 1 ?kaVs dk jkLrk gSA ?kVuk ds fnu eSa uk'rk djds pyk FkkA [kkuk [kk dj ugha pyk FkkA 8 cts ls dqN ckn eSa ?kj ls pyk FkkA dYiukFk esjs njokts ls gh gksdj tkrs gSA ogh dYiukFk fey x;sA ge yksx vkxs c<+s rks jkLrs esa jketh dk ?kj feykA jketh vkxs ckx ls ge yksxksa ls fey x;sA ogka ls ge yksx lkFk gh ckrphr djrs gq;s pysA osyblk cktkj ls jketh dqN vkxs gks x;s o eSa o dYiukFk 20&25 dne ihNs gks x;sA QkVd ls 200 ehVj igys gh ge yksx vk;s ihNs x;sA osyblk cktkj ls ge yksx vk;s ihNs gks x;sA ;gh nwjh ogha ls 'kq: gks xbZA ge yksx /khjs&/khjs vk jgs FksA ¼4½ esjh lkbZfdy ij dqN ugha FkkA jketh dh lkbZfdy ij nw/k FkkA Á'u&Dk vkidks viuh M~;wVh ij tYnh igq¡puk Fkk ftlls vki ukS cts ogk¡ igq¡p tk;\ mŸkj&xkao ds vkneh FksA lkFk gks x;k o cksyrs cfr;krs vk jgs FksA ¼5½ esjs fnekx esa ;g Fkk fd eq>s uo cts iqfyl ykbu igqpuk FkkA ¼6½ ?kVuk ds ckn eSa gjoa'k ds ?kj 20 feuV esa igWqpk FkkA xkao esa gjoa'k feysA mUgha ls dgkA vkSj fdlh ls ?kVuk ds okor ugha dgkA gjoa'k ds ;gkW 2] 4] 5 feuV :dk vkSj ogka ls lkbZfdy ls jokuk gq;sA jkLrs esa eq>ls o gjoa'k ls xkao dk dksbZ ugha feykA xkao ls ?kVukLFky rd vkus esa vk/kk ?kaVk yxkA nksckjk tc ge ?kVukLFky ij igqWps ogkaW ij ,df/k flikgh yksx FksA nksckjk eSa ?kVukLFky ij :dk ughaA eSa vius dke ij pyk x;kA nksckjk tc eSa ?kVukLFky ij igqapk ogka cgqr ls vkneh FksA mudh fxurh eSa ugha crk ldrkA ¼7½ lqHkkxh ds tehu dk eqdnek esjs firk o ij'kqjke ls py jgk gSA eSa o jktir f'kopUn ls ckx dh tehu dk eqdnek 6 lky ls yM+ jgk gwWA jketh ls bl eqdnesa okyh tehu ls dksbZ eryc ugha FkkA dsoy og esjs lkFk jgrs FksA ;g dguk xyr gS fd eSus dksbZ ?kVuk ugha ns[kk o u eSa ogkW ekStwn FkkA ;g dguk xyr gS fd ij'kqjke ls esjh nq'euh gS blfy;s >wBh 'kgknr ns jgk gwWA^^ 23. Therefore, the subsequently report given by Harbansh is creating a doubt whether there were 2 people or one person, who caused the death of deceased and, therefore, the entire testimony of PW1, PW2, PW3 and PW4, who were the main witnesses, will have to be examined as it was stated “KISI VYAKTI NE MARA” and, therefore, he has seen presence of only one person. Ramdaras and Kalpanath are the persons, who are examined as PW4 and PW3. Their statements were recorded much later. It is an admitted position of fact that the statement of PW3 and PW4 were not taken at the place of offence though they claimed that they were present at the place of incident. Nor in the Panchayatnama nor in the Site-plan, their names are mentioned. Page 77 of the paper-book shows the Site-plan. These witnesses are not shown to be present though they are projected as eye-witnesses at the place of incident. Even from the oral testimony of PW9 it can be gathered that Kalpanath was not there. The fact that he would go away for selling his milk after he saw the incident is also causing a doubt. Even in the statement under Section 161 Cr.P.C. he did not say that he was going to sell milk with the deceased. There are improved version in the testimony of PW3 and PW4. The deposition of PW3 and PW4 itself shows that their presence is doubtful. 24. It is pertinent to note that the incident is said to have taken place at 8.45 a.m. and immediately information was sent by the Gateman of Gate No. 29-A. The so called report, which was sent by PW2, was taken at 11.30 a.m. much after the investigation started. The Police Officer reached the place of occurrence at about 12.00 Noon on the very same day. The same contradiction and evidence of PW1 have not been taken into account by the trial Court. There are material improvements by PW2, PW3 and PW4 in their oral testimony and their statement under Section 161 Cr.P.C. in order to explain their presence. The said fact totally improbables the prosecution story and is suggestive of the fact that none of the so called eye-witnesses had seen the real occurrence as nothing in this regard was either discussed in the F.I.R. or in the statement under Section 161 Cr.P.C. by the witnesses. The said fact totally improbables the prosecution story and is suggestive of the fact that none of the so called eye-witnesses had seen the real occurrence as nothing in this regard was either discussed in the F.I.R. or in the statement under Section 161 Cr.P.C. by the witnesses. On this touchstone, it would be relevant to discuss the evidence of PW2, PW3, PW4, PW7 and PW9. The evidence of these witnesses causes a doubt as to the genuinenity of the prosecution case. None of the witnesses except PW2 stated that the accused had fired at a short distance. However, before deposing of this fact neither it has been stated in the F.I.R. Nor in the statement recorded under Section 161 Cr.P.C. It is very doubtful whether he was conveyed by PW3 and PW4 without claiming to be present as discussed and evidence of PW3 and PW4 will show that there is all probability that they were not present and their theory is false the reason being the accused were more inimical to them than Ram Ji and had there been the motive of killing Ramji (deceased), they would have at least attacked and caused some hurt to PW3 and PW4, who did not even try to stop them. Their evidence categorically belies the theory of being there of the day of incident. The circumstances also belies the fact that they would have been present or seen the offence. Had they been present, the site-plan and Panchayatnama would have shown their presence and they would have atleast tried to stop the accused from running away. 25. It is also notable that according to the prosecution, the deceased was one of the accused in the case where the present accused Parshuram was a complainant. The said incident had taken place much before and the documentary evidence goes to show that though it was a broad day-light occurrence took place near the railway crossing, no independent witness was examined by the prosecution except two so called eye-witnesses. The presence of the accused person at the place of incident appears to be highly doubtful. It has also come on record that immediately after the incident PW3 and PW4 left the place to carry on the work of selling milk and reporting to PW2 which testimony also has lot of contradictions. 26. The presence of the accused person at the place of incident appears to be highly doubtful. It has also come on record that immediately after the incident PW3 and PW4 left the place to carry on the work of selling milk and reporting to PW2 which testimony also has lot of contradictions. 26. 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 a long standing enmity with the deceased, he was falsely implicated in the present case. 27. As far accused No. 2 is concerned, though he has been assigned role of exhortation, nothing in this regard is borne out from the evidence of PW3 and PW4. The very presence at the spot of this accused is wholly doubtful. 28. The factual scenario will go to show that the learned Judge has materially erred in holding that it was the accused who had the motive to do away with the deceased. Learned Judge holds that Harbansh will not exculpate or let the real culprit escape and implicate the innocent persons. The fact that Harbansh was conveyed by PW3 and PW4 about the incident also causes doubt. The inimicalness of both these 2 witnesses is writ large on the record and causes a deep dent in the prosecution theory. The observation of the Court below in the facts and circumstances of the present case that Harbansh would not shield the real assailant and implicate the accused is misplaced as in he present case it is clear that Harbansh, Ramdaras and Kalpanath were not knowing, who were the real assailant and, therefore, it appears that the accused have been implicated in this false case purely on speculation. It is proved that PW3 and PW4 were partisan witnesses, their testimony should be viewed with great care and caution which we have done. It is an admitted position of fact that PW4 - Ramdaras is a son of Sri Bahadur against whom case for cancellation of sale-deed was filed by the accused. It is also an admitted position, as is clear from the evidence given by this witness that large number of cases were pending against each other under Section 107 Cr.P.C. Alongwith Ramdaras and others. PW4 also admits that Ramji used to live with him. It is also an admitted position, as is clear from the evidence given by this witness that large number of cases were pending against each other under Section 107 Cr.P.C. Alongwith Ramdaras and others. PW4 also admits that Ramji used to live with him. Both the prosecution witnesses had an axe to grind and there is no plausible explanation about their presence at the scene of occurrence. Therefore, merely because they used to stay with Ramji, it cannot be held that they would have also accompanied each other. The conduct of PW3 and PW4 and their testimony and certain omission in the police statement under Section 161 Cr.P.C. also goes against the prosecution. 29. The decision of the Apex Court in Shahid Khan v. State of Rajasthan, (2016) 4 SCC 96 , where the Apex Court has held as under : “The statements of PW 25 Mirza Majid Beg and PW 24 Mohamed Shakir were recorded after 3 days of the occurrence. No explanation is forthcoming as to why they are not examined for 3 days. It is also not known as to how the police came to know that these witnesses saw the occurrence. The delay in recording the statements casts a serious doubt about their being eye-witnesses to the occurrence. It may suggest that the investigating officer was deliberately marking time with a view to decide about the shape to be given to the case and the eye-witnesses to be introduced. The circumstances in this case lend such significance to this delay. PW 25 Mirza Majid Beg and PW 24 Mohamed Shakir, in view of their unexplained silence and delayed statement to the police, does not appear to us to be wholly reliable witnesses. There is no corroboration of their evidence from any other independent source either. We find it rather unsafe to rely upon their evidence only to uphold the conviction and sentence of the appellants. The High Court has failed to advert to the contentions raised by the appellants and re-appreciate the evidence thereby resulting in miscarriage of justice. In our opinion, the case against the appellants has not been proved beyond reasonable doubt.” 30. In this case also there are witnesses, whose statements are recorded after some days though they were alleged to be present at the place of offence. In our opinion, the case against the appellants has not been proved beyond reasonable doubt.” 30. In this case also there are witnesses, whose statements are recorded after some days though they were alleged to be present at the place of offence. The delay in recording the statement in this case also casts a very serious doubt whether they were eye-witnesses to the occurrence. 31. We are fortified in our view by the decision of the Apex Court in M.C. Ali and another v. State of Kerala, JT 2010 (3) SC 626 (supra). The said decision will enure for the benefit of this case as in the said case the Apex Court held in favour of the accused and has held as follows : “The police arrived at the scene. Although PW2, the injured witness, was available, his statement was not recorded. It was PW1 who gave the F.I. Statement. It must be remembered that he had run away when the deceased was being assaulted. In such circumstances, we are unable to hold that the conclusions reached by the Trial Court were unreasonable or perverse. The Trial Court meticulously examined the sequence of events with regard to the recording of the FIR. It cannot be held that the conclusion reached by the Trial Court that the occurrence report could not have been sent earlier, as the same was yet to be prepared, is not possible. The FIR was recorded at 0030 hrs on 31.1.1994. It was not received by the Magistrate till 3.30 p.m. on 31.1.1994. The Trial Court also noticed that the names of the accused were mentioned in Ex.P.1. But they were not mentioned in the relevant column of the inquest report. If the First Information Statement Ex.P.1 had been prepared prior to Ex.P.14, the names would surely have been mentioned therein. These conclusions again, in our opinion, cannot be said to be perverse.” 32. Hence the presence of PW3 and PW4 is proved to absolutely unnatural as seen from the evidence which we have discussed at length. PW1, PW2, PW3, PW4, PW7 and PW9 their evidence is threadbare read so to show how much credence should be given to their ocular version in which they have materially improved from their original statement under Section 161 Cr.P.C. Given to police authorities. 33. PW1, PW2, PW3, PW4, PW7 and PW9 their evidence is threadbare read so to show how much credence should be given to their ocular version in which they have materially improved from their original statement under Section 161 Cr.P.C. Given to police authorities. 33. The prosecution has examined the person, who had reported the crime later on i.e. Harbansh, who was the brother of the deceased. Before adverting to his evidence, it is an admitted position of fact that he was conveyed of the death of his brother by Ramdaras who conveyed that Parshuram had by firing from his gun killed Ramji between two railway Pathaks. He wrote the report at his shop Velaisa and then went to GRP Thana, Azamgarh. He has stated what was told to him by Ramdaras and has been annexed as Ext. Ka-2. In paragraph No. 2 of his evidence, he has admitted that before the incident, there were certain cases going on between them. According to him in his village Shiv Chandra, Parshuram and other had got prepared a forged document from Subhangi. Ramji was helping Ramdaras, who was the grand son of Subhangi and, therefore, Parshuram had a grudge against Ramji. This fact has been reported by him in his report. In his cross-examination, he accepted the fact that his house was at a distance of 2 miles West-South from the place of incident. Sangram, Sarju and Harnam are real brothers. He has admitted that 4 - 6 years back, the case of Subhangi’s forged document was going on. He does not have the factual idea as the signatures were not made before him in the documents which Subhangi had signed. He then narrates the dispute but admits that Ramji deceased had never given any evidence in favour of Ramdaras or Rajpat. He admitted the fact that Ramji and Ramjeet were accused in a murder trial and their appeal was pending before the High Court. They were sentenced in the year 1976. He was also an accused in the said case. Except the fact that in paragraph No. 16 he states that Ramdaras came to his house at about 9.30, he and Ramdaras went to Velaisa shop. Velaisa Bazar is only 100 ft. away. According to him, the police officer came at 12.30 p.m. from Mau. Whether the Police Officer had come through GRP Thana or not, he cannot opined. 34. Except the fact that in paragraph No. 16 he states that Ramdaras came to his house at about 9.30, he and Ramdaras went to Velaisa shop. Velaisa Bazar is only 100 ft. away. According to him, the police officer came at 12.30 p.m. from Mau. Whether the Police Officer had come through GRP Thana or not, he cannot opined. 34. As discussed, the evidence of the doctor shows that death occurred due to homicidal death is not in dispute. The evidence of PW6 showed that he was the person, who had taken the body for post-mortem. The most important witness now is PW9 - Investigating Officer. It is an admitted position of fact from his evidence that there was already an F.I.R. filed which was not given a number by PW1. However, he thought it fit to see that the report of PW2 is given more importance. It appears from his evidence that even in the Naksha Nazari, he has not been able to show the presence of PW3 and PW4. He has admitted that what he saw at the place of incident, he has noted. He has contradicted himself in paragraph Nos. 6 and 7 from the place where the accused started running is not shown whereas in paragraph No. 7 he says that he has shown the route of plying of the accused on the evidence of the witnesses. While going through the entire record, we feel that PW9, PW3 and PW4 have in consonance with each other implicated the accused. The presence of PW3 and PW4, which has been believed by the learned Judge, is erroneous. The learned Judge holds that relation between PW3 and PW4 Kalpanath and Ramdaras were constrained before the incident occurred and, therefore, we have threadbare examined the evidence of these witnesses. Findings of fact is arrived at by ignoring the relevant material on record by the Court below as such is bad in the eyes of law. From the factual scenario PW3 and PW4 were just at a distance of 24 - 25 furlong from the deceased and so exhortation of Triveni is not recorded in their police statement and also they would have not gone to PW2 but would have tried to take the deceased to the hospital. They would have tried to call the police or atleast could have seen the accused running away. They would have tried to call the police or atleast could have seen the accused running away. It was broad day-light and there would have been no people near the railway-gate which is a busy road in the said village. Ramdaras without informing the police report, stayed at his shop in Velaisa Bazar and, therefore, all the three witnesses are chance witnesses. The presence of PW3 and PW4 is said to have been corroborated by deposition of PW2, who himself was not present at the place of the occurrence and the learned Judge believe that had they both not been there, they would not have informed Harbansh. This is a perverse finding. The report, which is said to have been lodged at 11.30 can be said to be anti timed and is hit by Section 32 of Cr.P.C. As it cannot be said to be an F.I.R. This also creates a great doubt about their presence which is after thought. 35. We feel that absence of blackening and tattooing shows that the prosecution case is not correct. PW3 - Kalpnath and PW4 - Ramdaras have stated that Parshuram fired at the exhortation of Tribeni accused from a distance of 3 - 4 paces while the deceased was riding a cycle which was a moving object. Dr. Tekariwal says that a fire-arm used from a distance of 2 - 3 paces could cause tattooing or could not cause tattooing depending upon the quantum of explosive substance. It is true that blackening, scorching and tattooing depend upon quantum of gun powder. At any rate, the fire-arm from which bullet was fired, could not have caused scorching, blackening and tattooing if fired from a distance of more than 4 feet. PW4 - Ramdaras as observed earlier, has clearly stated that Parshuram was at a distance of 3 - 4 paces while firing and the deceased was going on a cycle. It would mean that the fire was made from a distance of more than 5 feet. The direction of the bullet was upward and from left to right. The deceased was riding a cycle and was going towards north. Parshuram assailant was towards the South. The site plan Ext. Ka-14 shows that the road at the place of the occurrence goes towards Azamgarh in slightly North-East direction from South-West direction. The medical evidence is, therefore, consistent with the ocular testimony. The deceased was riding a cycle and was going towards north. Parshuram assailant was towards the South. The site plan Ext. Ka-14 shows that the road at the place of the occurrence goes towards Azamgarh in slightly North-East direction from South-West direction. The medical evidence is, therefore, consistent with the ocular testimony. But the accused is not one who could have fired. The fire-arm is also not recovered. 36. The factual scenario as it emerges is that PW3 and PW4 cannot be said to be present at the place of offence. Their evidence has not been scrutinized properly though they are interested and inimical witnesses qua two accused. They had a motive to implicate the accused. The fact that the accused did not attack them nor did they try to catch hold either of the accused, though they were near causes suspicion. This fact ought to have been appreciated by the learned Trial Judge. The fact that the statements are recorded much after the incident though they are said to have been present at the place of the offence also raises doubt about their presence and their version being truthful. Ramdaras is a witness, who has not seen the incident. The Panchayatnama does not bear any noting as to both of them being there. The submission of learned A.G.A. Sri Rajiv Gupta that just because PW3 and PW4 were not beaten nor gunshot was fired would not render their presence doubtful consideration. There are other factors which we have considered at length herein before in this judgment pursued to hold that PW3 and PW4 were not present at the place of the offence. They have made material improvement in testimony casting doubt on prosecution story. 37. 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 Parshuram and Triveni 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 Parshuram and Triveni. 38. In the facts and circumstances of the case and the evidence led by the parties renders the origin and genesis of the occurrence doubtful. The accused-appellants Parshuram and Triveni are entitled the benefit of doubt. 39. In our considered opinion the reasons given by the Trial Court are not sufficient to convict the accused-appellants Parshuram and Triveni. 38. In the facts and circumstances of the case and the evidence led by the parties renders the origin and genesis of the occurrence doubtful. The accused-appellants Parshuram and Triveni are entitled the benefit of doubt. 39. On the basis of aforesaid discussion in our considered opinion and also applying the rule of caution, conviction of the accused-appellants namely Parshuram and Triveni cannot be sustained and is liable to be set-aside and in the circumstances of the case, the accused-appellants Parshuram and Triveni deserve to be acquitted. 40. The impugned judgment and order dated 13.9.1985 passed by Special Judge/Additional Sessions Judge, Azamgarh, in Sessions Trial No. 268 of 1984 is set-aside and the appellants namely Parshuram and Triveni are acquitted of the charges levelled against them and their conviction and sentence are hereby quashed and set-aside. The appellants namely Parshuram and Triveni are on bail. They need not to surrender. Their personal and surety bonds are hereby cancelled and sureties are discharged from their liability. 41. In the result, the appeal is allowed.