JUDGMENT By the Court.—The arguments of these cases concluded on 16.8.2016. Following order was passed by us on that date: “Heard Sri Manish Tiwary and Sri A.K. Awasthi, learned counsel for the appellant, learned AGA Sri Saghir Ahmad assisted by Sri J.K. Upadhya, Smt. Manjoo, learned brief holders for the State in Criminal Appeal No. 1995 of 2014. Learned AGA Sri Saghir Ahmad assisted by Sri J.K. Upadhya, Smt. Manjoo, learned brief holders for the State and Sri Bholeshwar, learned counsel for the accused-respondent in Government Appeal No. 2915 of 2014. We will give reasons later but we make the operative order now. 2. The appeal is allowed. Impugned judgment and order dated 9.4.2014 passed by Sri Pawan Pratap Singh (H.J.S.), Additional Sessions Judge, Court No. 7, Fatehpur in S.T. No. 222 of 2005 (State v. Daya Ram Kurmi and another) convicting to appellant under Section 302 IPC is hereby set aside. Appellant is acquitted of all the charges framed against him. Appellant is in jail. He shall be released forthwith unless and until he is wanted in any other case. Government Appeal No. 2915 of 2014 is dismissed. There shall be however no order as to cost” Here are the reasons : 3. The aforesaid Criminal Appeal No. 1995 of 2014 has been preferred by the appellant, Daya Ram Kurmi @ Juraha Kurmi against the judgment and order of conviction dated 9.4.2014 passed by Additional Sessions Judge, Court No. 7, Fatehpur, in Sessions Trial No. 222 of 2005, State v. Daya Ram Kurmi and another, arising out of Case Crime No. 89 of 2004, under Section 302 I.P.C., Police Station Bindki, District Fatehpur, whereby he has been sentenced to life imprisonment coupled with fine of Rs. 5,000/- and in default of payment of fine, he will have to suffer two months’ additional rigorous imprisonment. 4. The aforesaid Government Appeal No. 2915 of 2014 has been preferred by the State-appellant against the same judgment but pertains to order of acquittal dated 9.4.2014 passed by Additional Sessions Judge, Court No. 7, Fatehpur, in Sessions Trial No. 222 of 2005, State v. Daya Ram Kurmi @ Juraha Kurmi and another, arising out of Case Crime No. 89 of 2004 under Section 302 I.P.C., Police Station Bindki, District Fatehpur, whereby accused-respondent Puttan @ Pushpendra Kumar has been acquitted of charge for offence punishable under Section 302 I.P.C. 5. Since both the appeals referred to above, arise out of one judgment (S.T. No. 222 of 2005) pertaining to one and the same incident involving common question of law, hence the same are being heard together and decided by a common judgment. 6. Heard Shri Manish Tiwary, Sri A.K. Awasthi learned counsel for the appellant and learned AGA Sri Saghir Ahmad assisted by Sri J.K. Updhyaya Smt. Manjoo Thakur, learned brief holders for the State in Criminal Appeal No. 1995 of 2014. 7. We have also heard learned AGA Sri Saghir Ahmad assisted by Sri J.K. Updhya, Smt. Manjoo Thakur, learned brief holders on behalf of State-appellant and Sri Bholeshwar learned counsel for the accused-respondent Puttan @ Pushpendra Kumar, in Government Appeal No. 2915 of 2014 and perused the lower Court record. 8. The factual sketch of the prosecution case as emanates from record and particularly from perusal of the First Information Report appears to be; that the first informant Satya Narain Bhurji son of Suraj Deen, resident of Paradan, Police Station Bindki District Fatehpur lodged a written report at the aforesaid police station on 20.6.2004 at 4.30 p.m. regarding commission of offence of murder of his brother, Laxmi Bhurji by the accused Daya Ram Kurmi alias Juraha Kurmi-present-appellant and Puttan alias Pushpendra Kumar accused-respondent in Government Appeal No. 2915 of 2014 (in short referred to as “accused persons”) with the allegations that informant’s brother Laxmi Bhurji son of Suraj Deen was returning home after taking bath at tube-well of Ram Asrey Kurmi and had walked some paces on Pakka Road, when accused Daya Ram Kurmi @ Juraha Kurmi resident of Jhuraha Khera alias Mampur, in company with one more person came out of Bilayati Babul bushes, caught hold of him. When he raised alarm then the first informant and his wife Smt. Somwati-who were going for marketing at Bindki-saw the incident. It was around 2.00 p.m., Daya Ram Kurmi alias Juraha Kurmi and one more person possessing country made pistol in their hands, caught his brother and Daya Ram Kurmi alias Juraha Kurmi with intention to kill fired on his brother and his companion also fired by his country made gun. Alarm was raised by informant and his wife and a number of villagers arrived on the spot. In the meanwhile, the assailants made their escape good by disappearing towards the eastern side of ‘Babool’ bushes. Alarm was raised by informant and his wife and a number of villagers arrived on the spot. In the meanwhile, the assailants made their escape good by disappearing towards the eastern side of ‘Babool’ bushes. The informant’s brother died on the spot. The dead body was lying on the road. Motive for committing the offence was indicated in the First Information Report itself that there was some dispute with regard to insisting on obtaining forceful possession of 1/3 share of Chheda Ram in the house built on the leased land of the first informant and this was opposed by the deceased Laxmi Bhurji. Because of aforesaid enmity, first informant’s brother was killed by the accused persons. It has further been alleged in the First Information Report that unknown person can be identified in case he appears before the first informant. The incident has been witnessed by a number of persons. Report be lodged and action be taken. The scribe of written report is Krishna Kumar. This report is Ext. Ka. 1. 9. Contents of the aforesaid report were taken down in the check FIR at 4.30 p.m. on 20.6.2004 at Case Crime No. 89 of 2004 under Section 302 I.P.C. Check FIR is Ext. Ka. 12 on record. On the basis of entry so made in the aforesaid check FIR, a case was registered against the accused persons at Case Crime No. 89 of 2004 under Section 302 I.P.C. at the concerned police station on 20.6.2004 at serial No. 32 of General Diary at 4.30 p.m. 10. Relevant to note that the defence admitted the aforesaid two papers check FIR and entry No. 32 of the General Diary whereby the case was registered against the accused persons, therefore, the formal proof of the same was dispensed with and both these papers were exhibited by the trial Court. Registration of the case vide entry No. 32 of General Diary dated 20.6.2004 is Ext. Ka. 13. 11. Thereafter, the investigation of the case followed soon after the registration of the case. As per testimony of S.I. Subhash Chandra Shukla PW-4, the case was registered in his presence on 20.6.2004. At that point of time, S.I. Subhash Chandra Shukla was In-charge Station House Officer of Police Station Bindki. He, after doing the needful, proceeded to the place of occurrence and took possession of the dead body of Laxmi Bhurji. As per testimony of S.I. Subhash Chandra Shukla PW-4, the case was registered in his presence on 20.6.2004. At that point of time, S.I. Subhash Chandra Shukla was In-charge Station House Officer of Police Station Bindki. He, after doing the needful, proceeded to the place of occurrence and took possession of the dead body of Laxmi Bhurji. He appointed witnesses for preparation of inquest report and prepared inquest report Ext. Ka-3 on 20.6.2004. The preparation of inquest commenced at 04:30 p.m. and completed at 06.50 p.m. the very same day. In the opinion of inquest witnesses and the Investigating Officer, it was thought proper to the send the dead body of Laxmi Bhurji for post-mortem examination in order to ascertain real cause of death. Therefore, relevant papers were prepared viz.- letter to the Chief Medical Officer Fatehpur, Ext. Ka-4, letter to R.I. Ext. Ka-5, Police Form-13 challan dead body Ext. Ka-6 and Photonash Ext. Ka. 7. Thereafter, post-mortem examination on the dead body of deceased Laxmi Bhurji was conducted by Dr. A.S. Khan PW-3 on 21.6.2004 at 4.15 p.m. The doctor found following four ante-mortem injuries which are extracted herein below: 1. Fire-arm wound of entry 2.5 cm x 2 cm x cavity deep on the back of right side of chest 2 cm outer to the middle of chest. Blackening present in the area of 7 cm x 4 cm around the wound. 2. Fire-arm wound of entry 4 cm x 3 cm x cavity deep on the back of skull 10 cm behind the left ear with underlying bone fractured. 3. Fire-arm wound of exit 1.5 cm x 1 cm x cavity deep 7 cm above the right nipple. 4. Abrasion 2 cm x 2 cm on the back of right elbow joint. 12. The duration from the time of death till conduction of post-mortem examination was described one day. The cause of death was due to shock and haemorrhage as a result of fire-arm injuries. The post-mortem examination report has been proved as Ext. Ka. 2 by Dr. A.S. Khan PW-3. 13. We further gather from records that the Investigating Officer, besides, recording various statement of a number of persons including witnesses, also prepared memo of simple and blood stained soil on 20.6.2004 and has proved the same as Ext. Ka. 9. The post-mortem examination report has been proved as Ext. Ka. 2 by Dr. A.S. Khan PW-3. 13. We further gather from records that the Investigating Officer, besides, recording various statement of a number of persons including witnesses, also prepared memo of simple and blood stained soil on 20.6.2004 and has proved the same as Ext. Ka. 9. He also prepared recovery memo of vest, ‘Lota’ and shoes of deceased which were lying on the spot on 20.6.2004. This recovery memo is Ext. Ka. 10. 14. On 26.6.2004, the investigation of this case was taken over by another I.O. Brajraj Singh, the then Incharge Inspector, Police Station Bindki. He recorded statement of the prosecution witness Somwati and arrested the appellant Daya Ram Kurmi @ Juraha Kurmi on 5.7.2004. He also recorded statement of another co-accused Puttan @ Pushpendra Kumar and several other persons. After completing the investigation, he filed charge-sheet against the appellant which is Ext. Ka. 11 under the aforesaid Section of I.P.C. at aforesaid crime number. Thereafter, the case was committed to the Court of Sessions from where, it was made over for trial to the concerned Additional Sessions Judge, Court No. 7 Fatehpur. 15. The prosecution case was opened before the trial Court by the public prosecutor by describing the charge brought against the accused persons and also by stating the evidence by which it proposed to prove the guilt. After hearing the accused and the prosecution, the trial Court found prima facie case for framing charge against accused persons under Section 302 I.P.C. Accordingly, the charge was framed and readover to the accused persons who denied the charge and opted for trial. 16. Consequently, the prosecution was asked to adduce its testimony. The prosecution produced five witnesses in all. Reference of the prosecution witnesses is being elaborated here for sake of convenience : Satya Narayan, first informant PW-1, brother of deceased Laxmi Bhurji, is stated to be an eye-witness of the incident. Similarly, PW-2 Jitendra is also an eye-witness of the incident and is son of Satya Narayan. He has also described about the incident. Dr. A.S. Khan PW-3 has conducted the post-mortem examination on the dead body of the deceased on 21.6.2004 and he has proved the same as Ext. Ka-2. S.I. Subhash Chand Shukla PW-4 has detailed various steps taken by him for completing the investigation. He has also proved the prosecution papers say Ext. He has also described about the incident. Dr. A.S. Khan PW-3 has conducted the post-mortem examination on the dead body of the deceased on 21.6.2004 and he has proved the same as Ext. Ka-2. S.I. Subhash Chand Shukla PW-4 has detailed various steps taken by him for completing the investigation. He has also proved the prosecution papers say Ext. Ka-3 to Ka-10. Subsequently, the investigation was taken over from him on 26.6.2004 by Inspector Brajraj Singh PW-5. He also took various steps for completing the investigation. He has filed charge-sheet Ext. Ka. 11 against the accused persons under Section 302 I.P.C. at aforesaid crime number. 17. Thereafter, the evidence for the prosecution was closed and the statement of the accused persons was recorded under Section 313 I.P.C. In their statement, the accused persons termed their implication false and stated that they have been roped in, in this case on account of enmity. The appellant in the aforesaid criminal appeal claimed himself to be an old person and has not committed any offence. Though the accused persons wished to adduce evidence in defence but did not lead any testimony as such. The trial Court after hearing both the sides on merit passed the aforesaid impugned judgment and order dated 9.4.2014 in Sessions Trial No. 222 of 2005, State v. Daya Ram Kurmi and another, arising out of Case Crime No. 89 of 2004, under Section 302 I.P.C., Police Station Bindki, District Fatehpur, whereby aforesaid appellant was convicted and sentenced for commission of offence under Section 302 IPC while Puttan @ Pushpendra Kumar respondent in aforesaid Government appeal was acquitted under Section 302 IPC. Consequently, these two appeals one against order of conviction and one against acquittal order. 18. It has been vigorously argued on behalf of the accused persons that it is a case of blind murder and no one has seen the occurrence. Testimony of so called eye-witnesses does not inspire confidence, for the reason that their presence on the spot, under the circumstance of the case, is rendered doubtful. The very foundation of entire prosecution case-written report Ext. Ka-1 has not been proved properly in the testimony of PW-1-Satya Narain-the first informant-who has categorically affirmed that he merely impressed his thumb impression on the report and he was unaware of the contents of this report. 19. The very foundation of entire prosecution case-written report Ext. Ka-1 has not been proved properly in the testimony of PW-1-Satya Narain-the first informant-who has categorically affirmed that he merely impressed his thumb impression on the report and he was unaware of the contents of this report. 19. Learned counsel has engaged our attention to certain parts of the cross-examination (of PW-1) when he is not sure about the real contents of the FIR. Thus PW-1 appears to be improving on material points. His statement given in the trial Court is contradictory to what he stated before the Investigating Officer under Section 161 Cr.P.C. The statement of both the witnesses of fact namely PW-1 and PW-2 Satya Narayan and Jitendra, respectively, produced by the prosecution contradicts each other in material particular. It is surprising that one more person was said to be companion of the accused person Daya Ram Kurmi @ Juraha Kurmi at the time of commission of crime. It was stated in the First Information Report that this person can be identified as and when he appears before the first informant and this person is none other than next door neighbour i.e. to the adjoining house of first informant and the deceased. How can first informant claim that another unknown person can be identified by him as and when he appears before him when the said person is his next door neighbour. This shows hollowness of the claim of first informant and exposes his credibility as an eye-witness and first informant and thus creates doubt regarding his presence on the spot. 20. The another eye-witness named in the First Information Report is Somwati, who was not produced in the trial Court, for reasons best known to the prosecution. The evidence of PW-1 is sketchy, partisan and highly interested one, for the reason that he being brother of the deceased was inimical towards accused persons. PW-2 though claims to have passed his 8th class in 1994, did not write First Information Report, but it was written by scribe Krishna Kumar son of Ram Pyare. This also creates doubt on the presence of PW-2 Jitendra on the spot. He is a chance witness. 21. PW-2 though claims to have passed his 8th class in 1994, did not write First Information Report, but it was written by scribe Krishna Kumar son of Ram Pyare. This also creates doubt on the presence of PW-2 Jitendra on the spot. He is a chance witness. 21. Lot of emphasis has been made on the cross-examination of PW-2 at page No. 28 of the paper book to the effect that as soon as PW-2 arrived on the spot, his father Satya Narayan and mother Somwati were not present on the spot. This specific piece of testimony is axiomatic and truth in itself and carries element of truth on point of presence of this witness at the place of occurrence and virtually proves fact that PW-2 was never present on the place of occurrence and he only arrived on the spot after a long gap of time when the incident had already occurred. 22. Lastly, it has been argued by learned counsel that PW-2 Jitendra is highly inimical towards accused persons because he has been convicted in a case under Section 307 I.P.C. for an offence relating to attempt to commit murder of Daya Ram Kurmi @ Juraha Kurmi (accused-appellant). This fact has been specifically admitted by him that he has been convicted in a case under Section 307 I.P.C. for making an attempt on life of accused Daya Ram Kurmi @ Juraha Kurmi as appearing on page No. 28 of the paper book. PW-2 is highly interested in ensuring conviction for appellant. 23. Per contra learned A.G.A. while refuting aforesaid arguments submitted that it is incorrect to say that the contents of First Information Report have not been proved because thumb impression proved is that of PW-1 which invariably establishes the First Information Report lodged at the instance of Satya Narayan. The vivid and lively description of manner of incident has been proved by both the eye-witnesses PW-1 and PW-2, respectively. Expectation of pictorial and parallel description matching identical description of one witness with the other witness but it is obvious that their respective testimony on the whole corroborates each other in material particulars, especially the manner and style of occurrence which cannot be doubted. 24. Learned AGA has further added that the presence of the two eye-witnesses on the spot, is natural and genuine. 24. Learned AGA has further added that the presence of the two eye-witnesses on the spot, is natural and genuine. Their evidence is inspiring confidence and it is settled principle of criminal jurisprudence that testimony which corroborates each other in material particulars is to be believed and contradictions appearing in their testimony, if found to be of trivial nature, should be avoided. The prosecution has proved its case beyond reasonable doubt. 25. While refuting the aforesaid specific contention of learned AGA, in support of leave to appeal against the accused Puttan @ Pushpendra Kumar in Government Appeal No. 2915 of 2014, Shri Bholeshwar, learned counsel for Puttan @ Pushpendra Kumar engaged our attention to several points of testimony appearing in the deposition of the two eye-witnesses and in the testimony of the Investigating Officer and also to specific parts of judgment of the trial Court dated 9.4.2014 and tried to convince that the case of accused Puttan @ Pushpendra Kumar is highly doubtful and his participation in the incident has not been established even in the least. 26. It is stated that the incident took place on 20.6.2004 but the name of the accused Puttan @ Pushpendra Kumar surfaced in the statement of Satya Narayan and his wife Somwati on 21.10.2004 and investigation regarding unknown person was started by the Investigating Officer only on 15.9.2004 after inordinate delay for which no plausible explanation has been given by the prosecution. The aforesaid factual aspect of such belated investigation appears in examination in chief of Braj Raj Singh PW-5. How and why both the eye-witnesses kept mum for such a long time has not been explained by the prosecution. The accused Puttan @ Pushpendra Kumar happens to be the very neighbour of the first informant and deceased, and reference about him in the First Information Report is clearly spelt as unknown person. It was done with deliberate intention to teach a lesson to the accused Puttan @ Pushpendra Kumar, for the reason that first informant was nursing grudge against him on account of several counts. 27. The trial Court has adopted appreciable view regarding the circumstances and testimony of the prosecution witnesses and after correct appraisal of facts and law, has recorded just finding of acquittal against the accused Puttan @ Pushpendra Kumar which finding cannot be said to be not based on material on record. 27. The trial Court has adopted appreciable view regarding the circumstances and testimony of the prosecution witnesses and after correct appraisal of facts and law, has recorded just finding of acquittal against the accused Puttan @ Pushpendra Kumar which finding cannot be said to be not based on material on record. The abysmal silence of the first informant, while lodging FIR regarding non-mention of name of Puttan @ Pushpendra Kumar by itself is sufficient to render his implication false in this case. His complicity surfaced in the statement of first informant recorded at an ordinately delayed stage on 21.10.2004 i.e. after four months of the incident. 28. We have been further persuaded on behalf of the State-appellant (in Government Appeal No. 2915 of 2014) to believe that the testimony against accused Puttan @ Pushpendra Kumar is clinching and consistent. However, the trial Court without any rhyme or reason over looking the vital facts and circumstances of the case, acting on assumption and presumption unnecessarily recorded finding of acquittal which is erroneous and perverse. Both the eye-witnesses of occurrence namely PW-1 and PW-2 Satya Narayan and Jitendra have categorically stated about participation of accused Puttan @ Pushpendra Kumar in the incident in company with co-accused Daya Ram Kurmi @ Juraha Kurmi but the learned Trial Court, without heeding to the correct and actual facts and testimony, recorded finding of acquittal in favour of accused Puttan @ Pushpendra Kumar which is liable to be set aside, and he be convicted for offence under Section 302 I.P.C. 29. We have also considered the above rival submissions and scrutinized the record of the case. 30. Core consideration in both the aforesaid appeals relates to fact whether the prosecution has been able to prove its charge against appellant Daya Ram Kurmi @ Juraha Kurmi and Puttan @ Pushpendra Kumar beyond reasonable doubt and testimony of the two eye-witnesses namely PW-1 and PW-2 Satya Narayan and Jitendra, respectively, is clinching and inspiring confidence? 31. Further, whether finding of acquittal recorded against the aforesaid accused Puttan @ Pushpendra Kumar is perverse on the ground that it is not based on material on record and the view so taken by the trial Court is not possible under the facts and circumstances of this case? 32. In so far as death of deceased Laxmi Bhurji is concerned, that is admitted to both the parties. 32. In so far as death of deceased Laxmi Bhurji is concerned, that is admitted to both the parties. Only question that engages our attention is confined to the fact whether the occurrence as stated to have taken place on 20.6.2004 at about 2.00 p.m. was outcome of act of present accused-appellant Daya Ram Kurmi @ Juraha Kurmi and accused-respondent Puttan @ Pushpendra (in Government Appeal). 33. From perusal of the First Information Report, we gather that in this report, name of accused Daya Ram Kurmi @ Juraha Kurmi has been specifically described that he in company with one unknown person shot dead informant’s brother Laxmi Bhurji at 2.00 p.m. on the spot. The doctor witness PW-3 has noted four ante-mortem injuries on the dead body of Laxmi Bhurji. Two fire-arm wound of entry and one fire-arm exit wound have been noted on examination. Injury No. 1 is in shape of fire-arm wound of entry 2.5 cm x 2 cm x cavity deep on the back of right side of chest 2 cm outer to the middle of chest. Blackening present in the area of 7 cm x 4 cm around the wound. Injury No. 2 has been stated to be fire-arm wound of entry 4 cm x 3 cm x cavity deep on the back of skull 10 cm behind the left ear with underlying bone fractured. Injury No. 3 is fire-arm wound of exit 1.5 cm x 1 cm x cavity deep 7 cm above the right nipple. In this way, injuries No. 1 and 3 may be treated result of one shot causing entry wound and exit wound, respectively. Injury No. 4 is Abrasion in measurement of 2 cm x 2 cm on the back of right elbow joint. This may be caused, in the opinion of doctor, by fall of deceased on the ground. This post-mortem examination report has been proved by PW-3 as Ext. Ka. 2. Autopsy was done on 21.6.2004 at 4.15 p.m. and duration from the time of death (of the deceased) till conduction of post-mortem examination was described one day. Naturally, the doctor has opined cause of death due to shock and haemorrhage as a result of aforesaid ante-mortem injuries. He has stated that these injuries were sufficient in ordinary course of nature to cause death. The death of the deceased might have taken place on 20.6.2004 around 2.00 p.m. 34. Naturally, the doctor has opined cause of death due to shock and haemorrhage as a result of aforesaid ante-mortem injuries. He has stated that these injuries were sufficient in ordinary course of nature to cause death. The death of the deceased might have taken place on 20.6.2004 around 2.00 p.m. 34. Now we may come to the meritorial aspect of the occurrence as described by the two eye-witnesses of the incident. PW-1 Satya Narayan has stated that on the date of occurrence, he was coming from Bindki side alongwith his wife Somwati when his brother Laxmi Bhurji was returning after taking bath from tube-well. When he reached on Pakka road, accused persons Puttan @ Pushpendra Kumar and Daya Ram Kurmi @ Juraha Kurmi who laid in ambush behind bush appeared on the scene. Daya Ram Kurmi @ Juraha Kurmi fired from his country made pistol on Laxmi Bhurji who fell down and then Puttan @ Pushpendra Kumar fired on him. His son Jitendra also arrived on the spot and he also witnessed the incident. Alarm was raised by them whereupon the assailants fled away from the scene and disappeared behind bushes and a number of villagers arrived on the spot. Thereafter, the report was lodged by the first informant after it was written by scribe Krishna Kumar. 35. Similar is version of PW-2 Jitendra regarding the fact of occurrence. However, he differs from PW-1 on certain factual aspects. He testified that his father Satya Narayan and mother Somwati were going to Bindki from home and they saw the incident. At this stage, we may take note of the contents of First Information Report wherein presence of first informant and Somwati alone has been ascribed. There is no mention of presence of PW-2 Jitendra on the spot at the time of occurrence. 36. Obviously, Jitendra PW-2 who is son of first informant, is a literate person and has passed 8th class examination in the year 1994. Therefore, non mention of his name in the first information is sufficient fact for drawing conclusion that in all eventuality, Jitendra PW-2 was not present on the spot because his presence could not have gone unnoticed by the first informant while he had already named his wife to be present on the scene of occurrence in the contents of the FIR and who accompanied him and saw the incident. How Jitendra’s name was left out is beyond comprehension of a man of ordinary prudence. 37. It is obvious that first informant’s wife Somwati has not been produced as witness in the trial Court. Now we may further draw some positive conclusion from testimony of PW-1 Satya Narayan, in so far as the description of manner of the incident is concerned. On page 17 of paper-book, it is reflected that this witness PW-1 has stated that his son Jitendra also arrived on the spot and he dictated the First Information Report to Krishna Kumar. However, in examination in chief, he has stated that this report was not read over and explained to him and only thumb impression was obtained on it. This piece of testimony regarding non-disclosure of contents of written report to the first informant by the scribe Krishna Kumar, might have been treated as an isolated piece of testimony in form of aberration, but in his cross-examination, the fact was exposed particularly on page 22 of paper-book when this witness has been confronted with query that though he has stated that he got the report written but he has also stated that he did not dictate the report. The person who wrote the report was not his relative. He again said that after the report was written, it was not read over to him. Thereafter when he has been queried regarding veracity of his statement previously given before the trial Court, then he has expressed doubt about his testimony on particular fact as to whether he dictated the report or he did not dictate the report. This cannot be said by him with certainty. He further stated that he did not receive any paper from the police station when he lodged his report. 38. Further, he has stated that he knew that the name of Puttan @ Pushpendra Kumar has figured in the First Information Report lodged at the police station. This piece of testimony so emerging in the cross-examination virtually throws out the entire prosecution case, for specific reason that this witness is uttering blatant lie and is not aware about the contents of the First Information Report and he is not sure whether he himself dictated the contents so recorded in the written report Ext. Ka-1 or he did not dictate the contents of First Information Report. Ka-1 or he did not dictate the contents of First Information Report. Non-mention of name of Puttan @ Pushpendra Kumar though he appears to be residing in his neighbour-hood is a fact which throws doubt on credibility of this witness. 39. Obviously, the first informant appears to be highly interested, partisan and chance witness. It is settled law of criminal jurisprudence that the testimony of relative witness is to be read with caution and circumspection and in case it is found tainted with bias and with motive to be interested in conviction of the accused-appellant, the same should be discarded by the Court. Non mentioning of the name of Puttan @ Pushpendra Kumar in the First Information Report, instead mentioning of some unknown person who can be identified by the first informant, as and when, he appears before him is high degree concoction. 40. We gather from the record that son of first informant Jitendra PW-2 has been convicted in a case under Section 307 IPC for an attempt to commit murder of accused-appellant Daya Ram Kurmi @ Juraha Kurmi. Once foundation of First Information Report is rendered dubious coupled with attendant facts and circumstances of the case then the entire edifice of prosecution case falls on the ground. In this case, the prosecution witnesses being relative and interested witnesses whose credibility is eroded on the point of their presence on the spot, therefore, the prosecution could not establish contents of the First Information Report. The first informant has tried to improve his testimony before the trial Court, when he filed an affidavit and that affidavit was discovered to be not properly prepared whereby the name of Puttan @ Pushpendra Kumar was sought to be brought into light. He went on improving that after the occurrence, he was mentally perturbed and he could not mention the name of the assailants but he is stating truth on that moment (when he filed affidavit). His statement given to the Investigating Officer involves participation of three persons in the incident and he has been confronted for that statement by the defence. He could not assign any satisfactory reason for the same. On Page 25 of the paper-book, he has stated that when he saw his brother for the first time, he saw him lying on the ground with head downward. 41. He could not assign any satisfactory reason for the same. On Page 25 of the paper-book, he has stated that when he saw his brother for the first time, he saw him lying on the ground with head downward. 41. Similarly, Jitendra PW-2 has stated in his cross-examination in the last two lines on page 28 of paper-book that when he reached on the spot, his father Satya Narayan and mother Somwati were not present on the spot. He too has been confronted with the statement recorded under Section 161 Cr.P.C. wherein he has also stated involvement of three persons in the incident whereupon he has denied such statement having been given by him and he could not assign any reason for the same. This specific piece of testimony emerging in the statement of both the aforesaid witnesses of fact generates genuine and reasonable doubt regarding presence of these two witnesses on the spot. It is obvious that the presence of Jitendra PW-2 is highly doubtful and presence of first informant on the spot can be placed a little after the incident had taken place, because he arrived on the spot and saw his brother first, then he saw him lying on the ground. 42. In this factual backdrop, it can hardly be believed that he saw the occurrence of firing which he claims to have taken place before him. Since contents of the First Information Report were neither dictated by him nor were read-over to him, whole First Information Report becomes handi work of third person. In such circumstances, it would have been proper for the prosecution to have examined the scribe Krishna Kumar who could have elaborated on point of dictation of written report by the first informant. In the absence of non examination of the scribe, piecemeal testimony of Satya Narayan PW-1 on point of occurrence renders entire written report dubious and not believable. 43. At this juncture, we may observe that it is cardinal principle of criminal jurisprudence that it is solemn duty of the prosecution to prove its case and the charge on its own strength beyond reasonable doubt and in case charge is not proved beyond doubt coupled with the circumstances of the case, then concerned accused persons shall be entitled to benefit of doubt. In this case, the learned trial Court, though rightly acquitted accused Puttan @ Pushpendra Kumar but took parochial and partial view of the incident and misread the testimony of PW-1 and PW-2 on the point of occurrence and failed to appreciate the fact that the presence of prosecution witnesses as alleged on the spot, is highly doubtful. 44. The trial Court has also failed to take note of fact that the contents of First Information Report were not sayings of first informant Satya Narayan PW-1. The First Information Report did not figure name of Puttan @ Pushpendra Kumar though he happens to be neighbour of first informant. PW-2 Jitendra has himself admitted in his cross-examination that when he reached on the spot, he could not find (presence of) his father and mother namely Satya Narayan PW-1 and Somwati on the spot. The first informant Satya Narayan has stated that when he saw his brother for the first time, he was lying on the ground. These particular aspects of this case are substantial in nature and are sufficient to throw doubt on the veracity of the prosecution case. Certainly, the view taken by the trial Court, while convicting the accused Daya Ram Kurmi @ Juraha Kurmi that he committed crime, is erroneous and perverse and is not sustainable in law. In so far as acquittal of accused-respondent Puttan @ Pushpendra Kumar is concerned, it can be specifically observed by us that the finding of acquittal is profusely supported by material on record and the view so taken by the trial Court is justified which needs no interference by us at this stage. 45. These are the reasons upon which we set aside the impugned judgment and order of conviction dated 9.4.2014 passed by Additional Sessions Judge, Court No. 7, Fatehpur, in Sessions Trial No. 222 of 2005 arising out of Case Crime No. 89 of 2004, under Section 302 I.P.C., Police Station Bindki, District Fatehpur. 46. However, we direct that appellant will ensure compliance of provisions of Section 437 A Cr.P.C. by appearing before the concerned trial Court at the earliest. 47. 46. However, we direct that appellant will ensure compliance of provisions of Section 437 A Cr.P.C. by appearing before the concerned trial Court at the earliest. 47. In the light of aforesaid observations on the factual as well as legal merit of the entire case, we are of firm opinion that Government Appeal No. 2915 of 2014 in form of leave to appeal is refused as it is devoid of merit and without any force and is, accordingly, dismissed. 48. However, we provide that he will have to furnish bonds under Section 437A Cr.P.C. before the concerned trial Court at the earliest. 49. Let a copy of this order be certified to the concerned trial Court for information and necessary follow up action.