JUDGMENT Hon’ble Arvind Kumar Mishra-I, J.—By way of instant Criminal Appeal, accused-appellant Jitendra Singh Gangwar @ Nanku son of Babu Ram Gangwar resident of Kanasi, Police Station Nawabganj, District Farrukhabad, has challenged the judgment and order of conviction dated 21.8.2009 passed by the Special Judge (SC/ST Act), Farrukhabad, in Special Sessions Trial No. 20 of 1997 arising out of Case Crime No. 02 of 1997 under Section 302 I.P.C., Police Station Nawabganj, District Farrukhabad, whereby the appellant has been sentenced to life imprisonment coupled with fine Rs. 10,000/-. The half of amount of fine shall be paid to the successor of the deceased Vijay Singh @ Vijendra. 2. Heard Sri Arun Kumar Shukla Advocate assisted by Sri Anvir Singh, learned counsel for the appellant, Sri J.K. Upadhyay learned AGA for the State and also perused the record. 3. The brief facts giving rise to this appeal as unfolded from the record indicate that the first informant Satya Prakash son of Dafedar resident of Kanasi, Police Station Nawabganj, District Farrukhabad, lodged written report on 3.1.1997 at 6.20 p.m. at Police Station Nawabganj, alleging therein that the appellant Jitendra Singh @ Nandu son of Babu Ram Gangwar resident of Kanasi, Police Station Nawabganj, District Farrukhabad, was insisting 3-4 days prior to the incident (in question), that informant’s brother Vijay Singh should accompany him to Delhi with him. On refusal to go to Delhi, he (accused) objected. On 3.1.1997 at about 5.00 p.m., Jintendra Singh climbed on his roof and from where, he used vituperative language and threatened to life, whereupon informant’s brother came out of his house and reached in front of Jitendra Singh’s house in the street, when Jitendra Singh possessing country made pistol fired on his brother, which fire hit Vijai Singh in stomach of his brother due to which he fell down on the ground. In the meanwhile, informant’s elder brother Ram Prakash, his Bhabhi-Sajeevan, Bhagyawati and a number of other villagers arrived on the spot. They challenged the appellant whereupon the appellant secured his escape good possessing country made pistol in his hand. First informant took his injured brother to the police station. Report be lodged and appropriate action be taken. This written report is Ext. Ka-1. 4. They challenged the appellant whereupon the appellant secured his escape good possessing country made pistol in his hand. First informant took his injured brother to the police station. Report be lodged and appropriate action be taken. This written report is Ext. Ka-1. 4. Relevant entries were made in the concerned check First Information Report the very same day at 6.20 p.m. at Case Crime No. 02 of 1997 under Section 307 I.P.C. and Section 3(2) (5) SC/ST Act at Police Station Nawabganj, District Farrukhabad. Check FIR is Ext. Ka. 2. 5. On the basis of entries so made in the concerned check FIR, relevant entries were made in the concerned G.D. and a case was registered against appellant at aforesaid case crime number under the aforesaid Sections of I.P.C. as well as SC/ST Act, respectively. Copy whereof is Ext. Ka-3. 6. Investigation of the case was taken over by Shri Avaish Ahmad PW-4, who proceeded to the spot, enquired into the matter and at the instance of Smt. Sajeevan and villagers, prepared site plan Ext. Ka. 4. Since condition of injured was serious, he was referred to Kanpur and his statement could not be recorded. The statement of injured was recorded only on 17.1.1995. 7. Relevant to mention that medical examination of Vijay Singh @ Bijendra Singh was done by Dr. S.C. Tiwari, at Dr. R.M.L. Hospital, Farrukhabad on 3.1.1997 at 7.40 p.m. wherein following injuries were noted: (1) A gunshot wound of entry 0.75 cm x 0.75 cm x not probed in epigestric region 5 cm above umbilicus, margins are lacerated ecchymosed and inverted, charring is present bleeding is present. (2) A gun shot wound of exit 1 cm x 0.75 cm x not probed on right gluteul region, margins are lacerated, ecchymosed & everted. Bleeding present. Adv. x-ray. (3) A gun shot wound of entry 0.5 cm x 0.5 cm x communicating to wound of entry on inner part of thumb on left hand, margins are lacerated, ecchymosed and inverted, bleeding present. Adv. X-ray. (4) A gunshot wound no exists 0.8 cm x 0.8 cm x communicating to wound of entry on outer part of thumb of left hand, margins are lacerated, ecchymosed and everted. Bleeding present. Adv. Xray. General condition of patient was poor. Patient was admitted. Injury was kept under observation caused by fire-arm. Duration was fresh. Injury report is Ext. Ka-6. 8. Bleeding present. Adv. Xray. General condition of patient was poor. Patient was admitted. Injury was kept under observation caused by fire-arm. Duration was fresh. Injury report is Ext. Ka-6. 8. Thereafter, the condition of the injured victim became serious. He was referred to Hallet Hospital Kanpur. Investigating Officer sent Sub Inspector S.S. Mishra to enquire from injured and Smt. Bhagyawati. It transpired that Vijay Singh @ Bijendra Singh died on 10.2.1997. Therefore, relevant entries were made in the concerned case diary. The investigating Officer also converted the case from Section 307 I.P.C. to Section 302 I.P.C. 9. Record reflects that in this case, as soon as information of death of injured Vijay Singh @ Bijendra Singh was given to the concerned police station at Kanpur, Pooran Singh PW-6, who at that point of time on 11.2.1997, was posted as Sub Inspector, Police Station Swaroop Nagar. As per testimony of Pooran Singh PW-6, he held inquest of Vijay Singh @ Bijendra Singh on 11.2.1997 which is Ext. Ka-7. This witness has also proved preparation of various papers for sending dead body of deceased to mortuary at Kanpur, for post-mortem examination, where post-mortem examination on dead body of Vijay Singh @ Bijendra Singh was conducted on 11.2.1997 at 3.45 p.m. The doctor found as many as five ante-mortem injures which are extracted herein below: (1) Stitched wound 20 cm long, stitch present on abdomen, wound extending from xiphisternum to pubic region in middle. (2) Stitched wound 1 cm on right side of umbilicus 1 cm left side with catheter. (3) Stitched wound 1-1/2 with drainage tube on right side 6 cm away right side of umbilicus. (4) Bed sore present below hip bone. (5) Stitch wound neck 2 cm size on right side of neck 2 cm below right ankle of mandible. In the opinion of the doctor, cause of death was due to shock and septicemia. The post-mortem examination report is Ext. Ka.-12. The Investigating Officer after completion of investigation filed charge-sheet against the accused appellant under Section 302 I.P.C. and Section 3(2)(V) SC/ST Act, which is Ext. Ka-5 on record. 10. Thereafter, the case of appellant was committed to the Court of Session from where it was made over for trial to the aforesaid trial Court. Ka.-12. The Investigating Officer after completion of investigation filed charge-sheet against the accused appellant under Section 302 I.P.C. and Section 3(2)(V) SC/ST Act, which is Ext. Ka-5 on record. 10. Thereafter, the case of appellant was committed to the Court of Session from where it was made over for trial to the aforesaid trial Court. The trial Court after hearing the appellant on point of charge recorded its satisfaction for prima facie case and framed charges under Section 302 I.P.C. and Section 3(2)(5) SC/ST Act. Charges were read over and explained to the appellant who denied charges and opted for trial. Thereafter the prosecution in order to prove guilt was asked to adduce its testimony whereupon the prosecution produced in all 6 witnesses. A brief reference of the same is hereunder. 11. Satya Prakash PW-1 has claimed himself eye-witness and has proved written report Ext. Ka-1. Sajeevan PW-2 like PW-1, claims herself to be eye-witness of the incident. Constable Lajja Ram PW-3 has made relevant entries in check FIR and concerned general diary. Avais Ahmad PW-4 is Investigating Officer of this case. He has described the manner in which the investigation of the case was completed and has also proved the site plan Ext. Ka-4. He has proved charge-sheet Ext. Ka-5 filed against the appellant. Dr. S.C. Tiwari PW-5 has examined the injured Vijay Singh @ Bijendra Singh and has proved injury report Ext. Ka-6. S.I. Pooran Singh PW-6 held proceeding for preparation of inquest report of deceased Vijay Singh @ Bijendra Singh and he has proved the same as Ext. Ka-7 besides proving a number of various papers prepared by him for sending the dead body for the post-mortem examination. 12. Thereafter the evidence for prosecution was closed and statement of accused was recorded under Section 313 Cr.P.C. wherein he has specifically stated that he did not vote for Ram Prakash in the election of Gram Pradhan, therefore, he has been falsely implicated in this case. The defence led ocular testimony of one Mukesh Kumar DW-1. 13. The trial Court after considering the materials on record, disagreed with the contention of defence that the accused is innocent and passed the impugned judgment and order of conviction and imposed aforesaid sentence against the accused-appellant. 14. Consequently, this appeal. 15. The defence led ocular testimony of one Mukesh Kumar DW-1. 13. The trial Court after considering the materials on record, disagreed with the contention of defence that the accused is innocent and passed the impugned judgment and order of conviction and imposed aforesaid sentence against the accused-appellant. 14. Consequently, this appeal. 15. It has been vociferously claimed on behalf of the appellant that the appellant is innocent and he has not committed any offence. He never fired on the victim-deceased. The incident was not witnessed by any person. Claim has been made to the effect that all the prosecution witnesses of fact are altogether false. The prosecution witnesses of fact being relatives of deceased are chance witnesses and, therefore, their testimony is partisan besides being contradictory to each other. The site plain Ext. Ka-4 does not show specifically the place from where the appellant is stated to have fired on the deceased. No blood marks, whatsoever were found on the spot where the deceased was lying for about ½ hour. 16. The fact is that the deceased himself was possessing country made pistol for protection of his money and while he was opening and closing this pistol, it went off causing injury to the deceased. The motive imputed for committing crime is absurd and weak. Statement of prosecution witnesses of fact-PW-1 and PW-2 namely Satya Prakash and Sajeevan, respectively is in material contrast to their statement given before the trial Court and to the Investigation Officer under Section 161 Cr.P.C. The appellant has no reason to cause death of the deceased Vijay Singh @ Bijendra Singh. 17. The learned AGA while refuting the aforesaid submissions, elaborated that the case of the persecution has been consistently established and proved against the accused before the trial Court by cogent evidence given by the prosecution witnesses of fact and by entirety of testimony. Place of occurrence is in neighbor-hood, in-front of house of the accused and the same is certain. There is no ambiguity regarding identity of place of occurrence. The Investigating Officer, prepared the site plan at the instance of PW-2 Sajeevan, Bhagyawati and villagers. Both Satya Prakash PW-1 and Sajeevan PW-2 have seen the occurrence and their testimony is unimpeachable. 18. We have considered the rival contentions and perused the record. There is no ambiguity regarding identity of place of occurrence. The Investigating Officer, prepared the site plan at the instance of PW-2 Sajeevan, Bhagyawati and villagers. Both Satya Prakash PW-1 and Sajeevan PW-2 have seen the occurrence and their testimony is unimpeachable. 18. We have considered the rival contentions and perused the record. In the wake of rival contentions and allegations made by the prosecution against the appellant, core consideration that engages our attention for determination of this appeal relates to fact whether the incident was caused by the appellant and the charge has been proved beyond reasonable doubt against him or not? 19. In this context, we notice that the First Information Report regarding the incident was lodged by Satya Prakash PW-1 wherein, allegations were made against the appellant that he was insisting for taking informant’s younger brother Vijay Singh @ Bijendra Singh to Delhi 3-4 days prior to the incident which was refused by Vijay Singh @ Bijendra Singh and the informant. Thereafter on 3.1.1997 at about 5 p.m., the appellant climbed on his roof and used vituperative language, whereupon Vijay Singh @ Bijendra Singh came out of his house and reached in front of the doors of Jitendra Singh’s house in the street where the appellant opened fire on him due to which he sustained injury and fell down on the ground. Satya Prakash informant, Sajeevan wife of Ram Prakash, Bhabbi of injured alongwith other villagers also arrived on the spot and they saw the incident. On challenge being made by them, the accused made his escape good. 20. In this context, we notice that on the face of eye account testimony of the incident, motive becomes irrelevant. However, some circumstantial help can be drawn from motive so attributed. In this case, the motive may not be strong but it may have some inkling for raising grudge against the victim by the accused. Upon perusal of testimony of both the eye-witnesses Satya Prakash and Sajeevan PW-1 and PW-2, respectively, we notice that both have supported the incident that it took place around 5.00 p.m. on 3.1.1997. 21. However, it has come in examination in chief of PW-2 Sajeevan that she heard sound of firing. She claimed that she was pursuing her Devar Vijay Singh @ Bijendra Singh alongwith her husband Ram Prakash and Dewar Satya Prakash and sister-in-law (Dewrani) Bhagyawati. 21. However, it has come in examination in chief of PW-2 Sajeevan that she heard sound of firing. She claimed that she was pursuing her Devar Vijay Singh @ Bijendra Singh alongwith her husband Ram Prakash and Dewar Satya Prakash and sister-in-law (Dewrani) Bhagyawati. As per their testimony, as soon as shot was fired, it hit the victim who fell near Churni (trough). On being challenged, the accused appellant fled away from the scene of occurrence. Both these witnesses have been cross-examined wherein we find material contradictions which raises doubt on their presence on the spot. Their testimony as emerging from their cross-examination, suggests that only one fire was shot, however, injury report of victim Ext. Ka-6 suggests otherwise. On the face of it, two gun shot wounds of entry and two gun shot wounds of exit, have been noted on medical examination by Dr. S.C. Tiwari PW-5. On this point, he has been cross-examined and he has specifically suggested that two entry wounds and two exit wounds of gunshot were found on examination. Both these injuries have been found to be on separate parts of body of the deceased. Injury No. 1 was found to be “ A gunshot wound of entry 0.75 cm x 0.75 cm x not probed in epigestric region 5 cm above umbilicus, margins are lacerated ecchymosed and inverted, charring is present bleeding is present.” Injury No. 2 “A gun shot wound of exit 1 cm x 0.75 cm x not probed on right gluteul region, margins are lacerated, ecchymosed & everted. Bleeding present. Adv. x-ray.”. Injury No. 3 “A gun shot wound of entry 0.5 cm x 0.5 cm x communicating to wound of entry on inner part of thumb on left hand, margins are lacerated, ecchymosed and inverted, bleeding present. Adv. X-ray.” Injury No. 4 “A gunshot wound no exists 0.8 cm x 0.8 cm x communicating to wound of entry on outer part of thumb of left hand, margins are lacerated, ecchymosed and everted. Bleeding present. Adv. Xray.” 22. Theory of one shot fire is virtually admitted to the prosecution. In this scenario, it is upon the prosecution to establish as to how these injuries were caused. We discover from testimony of Satya Prakash PW-1 that when the accused appellant fired shot on his brother (victim) it first hit his hand and then hit his stomach. Adv. Xray.” 22. Theory of one shot fire is virtually admitted to the prosecution. In this scenario, it is upon the prosecution to establish as to how these injuries were caused. We discover from testimony of Satya Prakash PW-1 that when the accused appellant fired shot on his brother (victim) it first hit his hand and then hit his stomach. This particular fact does not find favour from the First Information Report which only specifies that shot was hit in stomach. 23. At this stage, we come across several statements made by both the witnesses of fact to the Investigating Officer under Section 161 Cr.P.C. which engage our attention at this juncture and particularly on point whether PW-1 and PW-2 were in fact eye-witnesses of the incident. We may deal with testimony of Satya Prakash PW-1 who has been confronted by the defence in his cross-examination regarding his testimony on page 11 of the paper book on point that as soon as the victim came out of his house, he alongwith the other family members followed the victim, has not been stated in the First Information Report. Thus, the fact that PW-1 followed the victim appears to have been an afterthought and improved before the trial Court. He has also admitted on the same page that site inspection of the spot was not done at his instance. 24. Obviously, whole testimony of Satya Prakash PW-1, though appears to be natural and consistent on point of occurrence that he also witnessed the incident but it is obvious that site plan was not prepared by the Investigating Officer on the pointing out of PW-1. We have also carefully perused the concerned case diary for availing some assistance regarding any such statement, as made before the trial Court by this witness and similarly made to the Investigating officer then we did not come across any such statement. Obviously, it emerges out that PW-1 has not stated anything to the Investigating officer on point of occurrence and particularly fact that he witnessed the incident and the incident took place before him. In the wake of above, we have no better conclusion than to believe and accept contention of defence that PW-1 did not witness the incident. It appears that he arrived on the spot only after the incident had already taken place. In the wake of above, we have no better conclusion than to believe and accept contention of defence that PW-1 did not witness the incident. It appears that he arrived on the spot only after the incident had already taken place. The testimony of PW-1 regarding description of occurrence in absence of any supporting statement to the Investigating officer, cannot be believed. 25. Now, aforesaid testimony when compared with testimony of Sajeevan PW-2 becomes suspicious, sketchy and inconsistent, for reason that her statement regarding occurrence as recorded by the Investigating Officer under Section 161 Cr.P.C. is exposed to hollowness. In her examination in chief, she has stated that on the fateful day around 5.00 p.m. Jitendra Singh was abusing from his roof, whereupon, Vijay Singh @ Bijendra Singh came out of his house and he was followed by this witness, her husband, her brother-in-law Satya Prakash, her sister-in-law Bhagyawati, then they heard sound of firing. The accused Jitendra Singh fired on Vijay Singh @ Bijendra Singh - victim which hit him and he fell near (Churni) trough. A number of persons had gathered on the spot. On being challenged, accused appellant Jitendra Singh fled away from the scene of occurrence, then a report was scribed by one Anil and injured was taken to police station by bullock-cart. 26. She (PW-2) has been cross-examined at length and on page 15 of the paper book, she has been confronted as to how they followed the victim upto the place of occurrence. She has stated that if her statement as given in the trial Court in examination in chief does not tally with the description given to I.O. regarding the incident, then she cannot assign any reason for the same. She has denied her statement recorded by the Investigating Officer that she ever gave statement that Jitendra Singh called Vijay Singh @ Bijendra Singh at his home and then shot him. Although she has stated that Jitendra Singh fired in her presence but she has further denied the suggestion that at the time of firing, she was inside her house. She has specifically denied statement recorded by the Investigating Officer that on hearing sound of firing, they came out of their house and saw Vijay Singh @ Bijendra Singh lying near trough (churni) and the fire had hit him on his stomach. 27. She has specifically denied statement recorded by the Investigating Officer that on hearing sound of firing, they came out of their house and saw Vijay Singh @ Bijendra Singh lying near trough (churni) and the fire had hit him on his stomach. 27. She has stated in her cross-examination that on her arrival on the spot, Vijay Singh @ Bijendra Singh was speaking. She has denied her statement recorded by the Circle Officer that she ever gave any such statement that victim was not speaking. Her statement given in examination in chief regarding her being eye-witness has been specifically denied by the Investigating Officer Avais Ahmad PW-4, therefore, what emerges from her cross-examination becomes crystal clear that she came out of her house only when she heard sound of firing and this specific fact has been testified by the Investigating Officer in his cross-examination on page 21 of the paper book, when she has denied her statement that she never gave such statement like one that on hearing sound of firing, they came out of their house and proceeded towards spot where they saw Vijay Singh @ Bijendra Singh lying near trough (Churni). He was shot on his stomach. The Investigating Officer has further confirmed that she (PW-2) has never given any statement that her husband Ram Prakash ever chased accused Jitendra Singh. She has also not given any statement to the Investigating Officer that a number of villagers had gathered on the spot and they challenged accused Jitendra Singh. Thus, it is obvious that PW-1 and PW-2 both witnesses of fact have not seen the act of firing though they insist to have seen the occurrence. It appears that they arrived on the spot just a little after the incident of firing had taken place. 28. In this regard, we may record that the Investigating Officer Avais Ahmad PW-4 prepared site plan of the occurrence at the instance of PW-2 Sajeevan and villagers but it is obvious that PW-2 had not seen the occurrence and her statement has been contradicted by the Investigating Officer that number of villagers had arrived on the spot, therefore, the villagers and Sajeevan PW-2 would not have been in a position to specify actual spot from where the accused opened fire on the deceased Vijay Singh @ Bijendra Singh. 29. At this stage, we may refer to the site plan of the occurrence Ext. 29. At this stage, we may refer to the site plan of the occurrence Ext. Ka-4 wherein no specific spot has been shown from where the accused fired on the deceased Vijay Singh @ Bijendra Singh. It has been stated that the accused fired from Varanadah, but actual position of the accused has not been shown. PW-4 has not stated in his cross-examination that the place marked by “X” is place where injured was standing. Therefore, it is not specific as to where the accused was standing when he fired on deceased Vijay Singh @ Bijendra Singh. However, it is gathered from the testimony that after fire hit Vijay Singh @ Bijendra Singh and he fell down on the ground, he remained there for about 30 minutes and report was written in village and then injured was taken in bullock-kart to the police station. Normally, in such circumstances, no family member will ever allow his close relative to remain lying on the ground after he has been shot for 30 minutes and will first get the report written. It is life of the person which gets primacy over all other acts. 30. It is also a fact that for about 30 minutes, the injured was lying on the ground and he was hit by gun shot but no blood mark was found on the spot by the Investigating Officer. Therefore, all these facts when cumulatively weighed, create lot of doubt on fact that PW-1 and PW-2 were not eye-witnesses of the occurrence. 31. It is cardinal principle of criminal jurisprudence that in case prosecution has not been able to establish charge by proving the same beyond reasonable doubt, then the case goes in favour of accused and he is entitled to benefit of doubt. 31. It is cardinal principle of criminal jurisprudence that in case prosecution has not been able to establish charge by proving the same beyond reasonable doubt, then the case goes in favour of accused and he is entitled to benefit of doubt. In this case, the testimony of both the eye-witnesses of fact appear to be testimony of chance witnesses and they being relatives are interested in giving false testimony which fact stands exposed when we come across their testimony recorded under Section 161 Cr.P.C. The site plan does not specify place from where firing was made and lastly, theory of one fire is highly doubtful in view of two gun shot injuries in form of entry wounds and exit wounds, which have been found on the person of victim on his medical examination on 3.1.1997 on the date of occurrence itself when he was lying on the spot. 32. In the wake of above analysis of facts and circumstances of the case evidence on record, contentions raised on behalf of the appellant are upheld by us. Consequently, this appeal is allowed. The impugned judgment and order of conviction dated 21.8.2009 passed by the Special Judge (SC/ST Act), Farrukhabad, in Special Sessions Trial No. 20 of 1997 arising out of Case Crime No. 02 of 1997 under Section 302 I.P.C., Police Station Nawabganj, District Farrukhabad is hereby set aside by us. 33. The accused-appellant is in jail in this case. He is acquitted of aforesaid charges under aforesaid Sections of I.P.C. He be released forthwith if not wanted in connection with any other case after compliance of provisions of Section 437A Cr.P.C. 34. Let a copy of this judgment/order be certified to the Court concerned to its intimation and necessary follow up action.