JUDGMENT Hon’ble Arvind Kumar Mishra-I, J.—By way of instant criminal appeal, challenge has been made to the judgment and order of conviction and sentence dated 11.2.2010 and 17.2.2010 passed by the Additional Sessions Judge, Court No. 11, Aligarh, in Sessions Trial No. 86 of 2009 State of U.P. v. Digambar Singh and others, arising out of Case Crime No. 259 of 2008, under Section 302 IPC, Police Station-Jawan, District-Aligarh whereby the appellants have been sentenced to life imprisonment coupled with fine Rs. 10,000/- each under Section 302 IPC, with default stipulation for six months’ additional rigorous imprisonment. 2. Heard Sri A.K. Srivastava and Sri Sanjay Singh, learned counsel for the appellants, Sri Raghvendra Kumar Mishra, learned counsel for the informant, Sri J.K. Upadhyay, Kumari Meena, learned A.G.As. assisted by Mrs. Manju Thakur, learned AGAs for the State and perused the record. 3. The prosecution case is that the written report was lodged at Police Station Jawan, District Aligarh regarding the incident which took place at 9:30 p.m. on 7.7.2008, by informant Jitendra Kumar son of Komal Singh, resident of Village Jaraina, Police Station Dibai, District Bulandshahar against several persons including the present appellants with allegations that the informant alongwith his father Komal Singh had come to attend marriage ceremony of his cousin brother at Village Memadi, within circle of Police Station Jawan, District Aligarh, on 7.7.2008. It was around 9:30 p.m. when Lilawati wife of Digambar Singh appeared on the scene of occurrence alongwith her sons Manpal and Bhanu, husband Digambar Singh and son-in-law Lokesh and exhorted them by saying that Komal Singh is here, he should not be spared. In the meanwhile Manpal fired on him (Komal Singh) which hit him (Komal Singh) below his ear, at the same time second shot was fired by accused Digambar Singh which hit him on his chest. As soon as the informant took stock of situation, Bhanu and Lokesh fired on him which fire did not hit him but went through hair breadth distance just touching his body and head of his father. The informant raised alarm whereupon Darog Singh son of Ganga Sahai and the others arrived on the spot. The incident was witnessed in the light created by generator. The informant’s father died on the spot and stampede occurred on the spot. The assailants after threatening and firing in the air, fled away from the scene of occurrence. The informant raised alarm whereupon Darog Singh son of Ganga Sahai and the others arrived on the spot. The incident was witnessed in the light created by generator. The informant’s father died on the spot and stampede occurred on the spot. The assailants after threatening and firing in the air, fled away from the scene of occurrence. It was requested that report be lodged and appropriate action be taken. The written report is Ext. Ka-1. 4. The contents of the written report were taken down in the concerned check FIR at Case Crime No. 259 of 2008, under Sections 302, 307, 504, 506 IPC on 7.7.2008 at 23:50 p.m. against five persons including the present appellants and case was also registered at concerned general diary entry No. 44 at 23:50 hours at same case crime number under aforesaid sections of IPC, the very same day. Both the check FIR and general diary entry are Ext. Ka-2 and Ext. Ka-3, respectively. 5. After registration of the case, the investigation ensued and was taken over by S.I. Jasvir Singh PW5. He reached on the spot in the night, took various steps and prepared site plan Ext. Ka-5. He also collected blood stained and simple soil from the spot and prepared memo of the same as Ext. Ka-6. He also supervised inquest proceedings conducted by S.I. Sunhari Lal and proved the same as Ext. Ka-7 and other relevant papers were prepared for sending the dead body of Komal Singh for autopsy. These relevant papers are in the form of challan dead body, police form No. 13 Ext. Ka-8, photonash Ext. Ka-9, letter to R.I. Ext. Ka-10 and letter to CMO Ext. Ka-11. Thereafter the dead body of the deceased Komal Singh was sent for autopsy. 6. Record reflects that post mortem examination on cadaver of the deceased Komal Singh was conducted by Dr. Heera Singh at 12:35 p.m. on 8.7.2008 at District Hospital, Aligarh, wherein the following ante mortem injuries were found on the dead body: 1. Fire-arm wound of entry 2 cm x 1.5 cm x oval cavity deep on right side cheek, 1 cm below right ear. Margins inverted and lacerated. Blackening and Tattooing present around the wound. 2. Fire-arm wound of exit 7 cm x 5 cm x brain cavity deep on the left side head, 6 cm above x behind left ear underlying bone fractured. Margins inverted and lacerated. Blackening and Tattooing present around the wound. 2. Fire-arm wound of exit 7 cm x 5 cm x brain cavity deep on the left side head, 6 cm above x behind left ear underlying bone fractured. Brain lacerated and brain matter coming out. Margins everted and lacerated, connected with injury No. 1. 3. Fire-arm wound of entry 2.5 cm x 1 cm x chest cavity deep on the front of right side chest, 4 cm medial to right nipple at 3 O’ clock position. Margins inverted and lacerated. Tattooing was surrounded in an area of 18 cm x 7 cm. Bone was fractured. 7. In the opinion of the doctor, cause of death was stated to be due to shock and haemorrhage with coma as a result of ante-mortem fire-arm injuries. Duration of post mortem examination report from approximate time of death was rated about half day. 8. The doctor has also recovered a metallic pellet from injury No. 3 caused on chest wall and has referred the same in the post mortem examination report as well as in his testimony before the Court. Besides the doctor has proved process as to how he conducted post mortem examination and also proved post mortem examination report Ext. Ka-4. 9. During course of investigation, the Investigating Officer arrested the two accused persons namely Digambar Singh and Manpal on 13.7.2008 at some place near Kali river bridge, which was 100 meters ahead of Ahrauli crossing and a countrymade gun alongwith cartridge was recovered from possession of accused Manpal. He prepared memo of arrest and recovery which is Ext. Ka-12 on record. 10. The Investigating Officer also came to know during investigation that names of Bhanu and Lilawati were wrongly spelt by the informant and he did not find involvement of Bhanu and Lilawati in the incident. The Investigating Officer after completing investigation filed charge-sheet against the accused appellants which is Ext. Ka-13 on record. 11. Pursuant thereto, the case was committed to the Court of Sessions from where it was made over to the aforesaid trial Court. Learned trial Court heard the accused persons on the point of charge and the trial Court was prima facie satisfied with the case, inter alia, under Section 302 IPC. Consequently, charge was framed and the same was readover to the accused who denied charge and opted for trial. 12. Learned trial Court heard the accused persons on the point of charge and the trial Court was prima facie satisfied with the case, inter alia, under Section 302 IPC. Consequently, charge was framed and the same was readover to the accused who denied charge and opted for trial. 12. Thereafter the prosecution was asked to adduce its testimony in order to prove its case. The prosecution produced in all seven witnesses. A brief sketch of them is ut infra: 13. Jitendra Kumar PW-1 is the informant. He has proved the lodging of the First Information Report and he claimed himself to be eye-witness of the incident. Darog Singh PW-2, is brother-in-law of the informant. He also claimed himself to have seen the incident. Constable Ramendra Singh PW-3 has made relevant entries in the concerned check FIR and also registered case against the appellants in the concerned general diary and has proved the process. Dr. Heera Singh PW-4 has conducted post mortem examination on cadaver of the deceased Komal Singh on 8.7.2008 and has proved post mortem examination report Ext. Ka-4. S.I. Jasvir Singh PW-5 has described various steps, he took in completing investigation and has proved filing of charge-sheet against the appellants. 14. Record further reflects the other two witnesses namely Pramod Kumar and Ram Niwas, PW-6 and PW-7, respectively completed proceeding of another case crime No. 266 of 2008 under Section 25 Arms Act against the accused Manpal which case is not under consideration in this appeal. Therefore, no further reference need be made by us. 15. Except as above, no other evidence, whatsoever, was adduced by the prosecution. Therefore, evidence for the prosecution was closed. Thereafter, the statement of the accused was recorded under Section 313 Cr.P.C., wherein they claimed their innocence and false implication in this case on account of enmity with the informant. It has been claimed that the informant was not present on the spot and false First Information Report has been lodged with the connivance of the police against the appellants. 16. The defence also led ocular testimony of five witnesses. A brief sketch of them is ut infra: 17. Mahesh Chand DW-1 claimed to have purchased juice from Lokesh around 9:00 p.m. on 7.7.2008 at Ghaziabad which he used to sell on the pushcart. Jaipal Singh DW-2 is witness of fact. He too took juice from Lokesh around 7:00 p.m. on 7.7.2008. A brief sketch of them is ut infra: 17. Mahesh Chand DW-1 claimed to have purchased juice from Lokesh around 9:00 p.m. on 7.7.2008 at Ghaziabad which he used to sell on the pushcart. Jaipal Singh DW-2 is witness of fact. He too took juice from Lokesh around 7:00 p.m. on 7.7.2008. Vjai Pal DW-3 is also witness of fact that Manpal and Digambar Singh were talking to him on 7.7.2008 from 9:00 p.m. to 12:00 midnight. Charan Singh DW-4 also supported testimony of aforesaid DW-3. Janaki Prasad PW-5 has testified to fact that on 7.7.2008, there was light from petromax. Four or five persons were taking snacks when two miscreants came inside the room and shot Komal Singh after calling him out of room. The occasion was marriage of daughter of Om Prakash. No other testimony was adduced by the defence. Therefore, case was posted for arguments by both the sides. 18. Learned trial Court after hearing both the sides on merit and considering the material on record returned the finding of conviction under Section 302 IPC and sentenced to life imprisonment coupled with fine Rs. 10,000/- each under Section 302 IPC, with default stipulation for six months’ additional rigorous imprisonment and acquitted the accused Lokesh of all charges and the present appellant Manpal under Section 25 Arms Act. 19. Consequently, this appeal. 20. It has been vociferously contended on behalf of the appellants that in this case, no one saw the incident and no one saw who committed murder of the deceased Komal Singh. In fact the deceased Komal Singh was murdered by some unknown person but the informant on account of enmity qua landed property falsely named the present appellants. Falsity of the First Information Report stood exposed during investigation when the Investigating Officer came to know from statement of various persons present on the spot that names of Bhanu and Lilawati have been deliberately included in the First Information Report. The fact is that the informant Jitendra Kumar was also not present on the spot and he did not see the incident. He was, at that point of time away, attending some marriage at Kanpur and after murder of Komal Singh was committed, when he was telephonically informed, he arrived on the spot next morning then only the police proceeded with the case. He was, at that point of time away, attending some marriage at Kanpur and after murder of Komal Singh was committed, when he was telephonically informed, he arrived on the spot next morning then only the police proceeded with the case. The fact is that except the informant, no other person has named the appellants as culprit who committed crime. If the place of occurrence was being attended by a number of persons then live account of the incident could have been obtained from independent witnesses but the prosecution has not produced any independent witness in order to corroborate testimony of the informant Jitendra Kumar PW-1. 21. Darog Singh PW-2 is brother-in-law of the informant and he being relative, is interested and partisan witness. He too has not seen the occurrence. PW-1 himself has stated that Darog Singh PW-2 arrived on the spot after he raised alarm. The incident is alleged to have occurred inside the room then it was not possible for any person to see the incident when he was away from room and the entire campus where occurrence took place was admittedly thronged by a number of persons, therefore, it was not possible to locate and identify the real assailants. 22. On material point, witnesses of fact, PW-1 and PW-2 have improved their testimony and their testimony is contradictory to each other. The very source of light as propounded by the informant and another witness, was created by generator and light of Halogen with certain bulbs inside the room was not vindicated by the Investigating Officer. The Investigating Officer noted that there was no light created by generator on the spot when he visited the spot in the night. He only noticed one Petromax that too was placed at far off place from the room where the murder of Komal Singh was committed. The prosecution witnesses of fact claimed that inquest report was prepared around 1:00 p.m in the night, whereas, the Investigating Officer himself testified to fact that inquest report was prepared between 7:00 a.m. to 9:00 a.m. on 8.7.2008. Therefore, source of light on the spot as claimed by the informant is highly doubtful. The prosecution witnesses of fact claimed that inquest report was prepared around 1:00 p.m in the night, whereas, the Investigating Officer himself testified to fact that inquest report was prepared between 7:00 a.m. to 9:00 a.m. on 8.7.2008. Therefore, source of light on the spot as claimed by the informant is highly doubtful. The prosecution story is full of whims and the trial Court failed to take into account that testimony of the prosecution witnesses is contradictory and the same does not inspire confidence and their testimony is highly motivated on account of enmity with the accused side. 23. Learned AGA while retorting to aforesaid contentions submitted that the accused persons have been named in the First Information Report. The First Information Report was promptly lodged at Police Station Jawan. Several particular details were mentioned in the written report. The constable who noted contents of the written report in the concerned Check FIR and GD entry has proved the process before the trial Court. It cannot be said that the First Information Report was written only after inquest was prepared. The testimony of two eye-witnesses cannot be doubted and cannot be said to be either shaky or inconsistent and particular description of the incident has been proved by testimony of both the eye-witnesses. The availability of light on the occasion of marriage ceremony created by generator is most probable. Daroga Ji found generator on the spot. If Daroga Ji did not make memo of generator then the same will not throw out the prosecution case. Learned trial Judge after considering the entire aspect of the case has justly recorded conviction against the appellants under Section 302 IPC. 24. We have also considered the aforesaid rival submissions and also claim of the appellants vis-a-vis claim of the prosecution. The moot point that arises for adjudication of this appeal relates to the fact whether the two witnesses of fact namely Jitendra Kumar PW-1 and Darog Singh PW-2, respectively have witnessed the incident and their testimony inspire confidence and whether the prosecution has not been able to prove its case beyond reasonable doubt? 25. On perusal of the contents of the First Information Report, it transpires that the written report was lodged by the informant Jitendra Kumar who happens to be son of the deceased Komal Singh. 25. On perusal of the contents of the First Information Report, it transpires that the written report was lodged by the informant Jitendra Kumar who happens to be son of the deceased Komal Singh. The entire First Information Report does not refer to any enmity or motive for committing the crime. It described the incident in straight words that the informant was present on the spot and was attending marriage of his cousin brother in Village Mamadi within Police Station Jawan on 7.7.2008. It was around 9:30 p.m. when Lilawati alongwith several persons including the present appellants arrived on the spot and after sighting Komal Singh, exhorted the appellants to kill him whereupon shots were fired on the deceased Komal Singh and Jitendra Kumar. Two fires hit Komal, one below his ear and the other hit him on his chest. As soon as the informant took stock of the situation, he was also targeted by the assailants but the fire somehow missed target and he was saved. At this state, he raised alarm when Darog Singh PW-2 arrived on the spot alongwith other persons. It has been claimed that the incident was witnessed in the light created by generator and Komal Singh died on the spot and stampede occurred on the scene of occurrence. 26. In this factual background, we have before us testimony of witnesses of fact. We may note that PW-1 Jitendra Kumar son of the deceased and PW-2 Darog Singh brother-in-law of PW-1 have been examined. Before we scrutinize and evaluate their testimony, it would be convenient to take note of the site plan Ext. Ka-5 prepared by the Investigating Officer PW-5. A bare perusal of the site plan reveals that Place X inside the room has been marked as the Place where the dead body of the deceased Komal Singh was lying. The passage shown by single arrow has been marked as the way followed by the assailants while they came to the room. The double arrow mark has been made to show passage followed by the assailants for securing their escape from the scene of occurrence. There is no mention of any generator or any generator created light either inside the room or in the open land, only several rooms with some trees and office room have been described/depicted in this site plan. 27. There is no mention of any generator or any generator created light either inside the room or in the open land, only several rooms with some trees and office room have been described/depicted in this site plan. 27. Now we may begin with fact of availability of light on the spot when in the testimony of both the witnesses of fact namely Jitendra Kumar PW-1 and Darog Singh PW-2, they have stated that at the time of occurrence, there was light created by generator and in the light of generator they saw the assailants. PW-1 has specifically stated on page 17 of the paper-book in his examination in chief that there was generator created light in which he saw the assailants. Similar version has come from testimony of PW-2 as appearing on page 26 of paper-book. They have been cross-examined and particularly the informant has stated in his cross-examination that certain bulb and Halogen were lit inside the room and it is incorrect to say that there was no such Halogen light inside the room. Although he has been confronted by the defence that he has not made any reference of any such light or any source of light in his written report whereupon he has admitted the suggestion and has stated that he did not ascribe this fact in the written report Ext. Ka-1. He has been further confronted as to whether he told about availability of Halogen and bulb inside the room to ‘Daroga Ji’ and whether he counted Halogen and bulb inside the room whereupon he testified that he neither counted nor can he state specific place where Halogen and bulb were fixed inside the room and the fact of Halogen and bulb light was not told by him to ‘Daroga Ji’. 28. Similar confrontation has been made to PW-2 by the defence as appearing on page 28 of the paper-book wherein also it emerged that no such statement was given that Halogen and bulb light was created on the spot by generator. 29. Now we may switch over to the testimony of the Investigating Officer PW-5 as to what he discovered on reaching the place of occurrence regarding availability of light. 29. Now we may switch over to the testimony of the Investigating Officer PW-5 as to what he discovered on reaching the place of occurrence regarding availability of light. S.I. Jasvir Singh PW-5, Investigating Officer has been cross-examined by the defence whrein he has stated in the very first line of his cross-examination that he reached the place of occurrence in the very night itself. On page 42 of the paper-book, he has specifically stated in his cross-examination that he found one illuminated Petromax when he reached the spot and that Petromax was placed at different place from Janwasa (place meant for staying Barat). On page 43 of the paper-book when queried by the trial Court, he testified to fact that generator was not operative at that point of time and he did not mention generator in his site plan and he has also not mentioned in his site plan as to on what place light was illuminating. All the above facts and factual testimony on the point of availability of light when cumulatively read and evaluated, gives impression that it cannot be said that there was in fact light of illuminated Halogen or bulb either inside the room where the incident took place or outside the room, except one Petromax that too was placed at place away from Janwasa (place meant for staying Barat). Therefore, claim of the prosecution regarding availability of sufficient source of light at the place of occurrence stands falsified. 30. The point of occurrence and presence of the appellants and prosecution witnesses on the spot will be our next evaluation. PW-1 and PW-2 have categorically stated that the incident took place around 9:30 p.m. on 7.7.2008. PW-1 has come out with testimony in his examination in chief that he had gone to attend marriage ceremony of his cousin Dheeraj alongwith his father Komal Singh at village Memadi, where maternal aunt (Mausi) Lilawati appeared alongwith several persons including the present appellants at 9:30 p.m. and exhorted to kill Komal Singh whereupon both the appellants fired on Komal Singh and two fires hit Komal Singh, one below his ear and the other on his chest. 31. We may have corroboration from ante mortem injuries as we notice from perusal of the post mortem examination report Ext. Ka-4 wherein first two fire-arm wounds are wound of entry and wound of exit. 31. We may have corroboration from ante mortem injuries as we notice from perusal of the post mortem examination report Ext. Ka-4 wherein first two fire-arm wounds are wound of entry and wound of exit. These two wounds have been caused by a single shot, whereas, fire-arm wound of entry 2.5 cm x 1 cm x chest cavity deep on the front of right side chest, 4 cm medial to right nipple at 3 O’ clock position. Margins inverted and lacerated. Tattooing was surrounded in an area of 18 cm x 7 cm, is the second fire-arm wound, one metallic pellet was also recovered by Dr. Heera Singh PW-4 during course of autopsy. 32. At this stage, it would be relevant to take note of the fact that the scene of occurrence is the room and it has come in testimony of PW-1 on page 19 of the paper-book that the room will be measuring approximately 14 x 18 ft. and PW-1 was also targeted by the assailants, particularly Bhanu and Lokesh and one bullet/pellet virtually passed touching his ear, however he was saved. But in so far as testimony of PW-2 is concerned, we notice on careful perusal of testimony of both witnesses of fact that Darog Singh PW-2 was at the relevant time of occurrence sitting outside the room at a distance of 15-16 meters. He arrived on the scene of occurrence only after hearing noise when several ‘Barati’ had already entered into the room. This sort of testimony emerges in the testimony of Darog Singh PW-2 itself on page 28 of the paper-book. This piece of testimony, if read conjointly with testimony of Jitendra Kumar PW-1 as appearing on page No. 21 of the paper-book that he kept on screaming for about ten minutes and Darog Singh came to the scene of occurrence, it means that Darog Singh PW-2 was not present inside the room at the time of occurrence and he did not witness actual occurrence and the assailants have succeeded in causing hurt for the time being on one of the targets-Komal Singh. It has been stated that Jitendra Singh PW-1 was also targeted and as per his testimony one bullet/pellet virtually passed kissing his ear but there is no whisper about fact that any straying pellet hit him. It has been stated that Jitendra Singh PW-1 was also targeted and as per his testimony one bullet/pellet virtually passed kissing his ear but there is no whisper about fact that any straying pellet hit him. How and why the assailant will spare Jitendra Singh PW-1 when he was present inside the room, is something suspicious and intriguing. 33. We cannot easily adopt theory of presence of Jitendra Kumar PW-1 inside the room and his escaping unhurt despite firing being made on him. Although it is not universal law that any person who is present inside room will in all probability sustain injury but here under given facts and circumstances of the case, we have before us claim made by the prosecution itself regarding existing hard enmity on account of landed property between the parties, then the assailant must be knowing well that killing of Komal Singh alone will not serve purpose and they would have also kept on sustained firing momentum though in the form of repeated attempts to cause harm to Jitendra Kumar PW-1, but they merely fired on him and then escaped away from scene of occurrence, is not easily acceptable under facts and circumstances of the case. Jitendra Singh PW-1 has said on page 19 of paper-book in his cross-examination that five fires were shot inside the room and Darog Singh was sitting 10-15 meters away from room. Therefore, we find that presence of PW-1 on the spot is doubtful. 34. On the point of availability of light inside the room, this witness (PW-1) is not consistent. From his testimony on page 20 of the paper-book, it emerges that the firing was opened after entering into the room by the assailants. He has further stated that firing caused panic but he mustered courage and remained sitting on the spot. On page 21 of paper-book, he has stated that inquest was held around 1:00 a.m. in the night of occurrence and thereafter the dead body was taken to the police station by Daroga Ji. This is in sheer contrast to testimony of Jasvir Singh PW-5 appearing in his cross-examination on page 42 of paper-book when he testified in the last paragraph of his testimony that he completed inquest report at 9:00 a.m. on 8.7.2008. 35. This is in sheer contrast to testimony of Jasvir Singh PW-5 appearing in his cross-examination on page 42 of paper-book when he testified in the last paragraph of his testimony that he completed inquest report at 9:00 a.m. on 8.7.2008. 35. We notice on perusal of original inquest report that preparation of inquest commenced on 8.7.2008 at 7:00 a.m. and was completed at 9:00 a.m. The point for evaluation takes us to fact that testimony recorded profusely establishes presence of Daroga Ji on the spot in the night of occurrence and as per claim of the prosecution witnesses, there was sufficient light created by generator inside the room on the spot, but Daroga Ji did not care to hold and complete inquest proceeding during course of night instead he waited for next morning and till 9:00 a.m. he completed proceedings. This circumstance coupled with particular testimony of PW-1 that inquest was held at 1:00 a.m. and Daroga Ji took dead body to the police station is quite surprising and this particular circumstantial aspect makes it appear that the concerned general diary entry and check FIR entry was kept blank till preparation of inquest report. We doubt lodging of the First Information Report at 23:50 hours on 7.7.2008 at Case Crime No. 259 of 2008 at Police Station Jawan, District Aligarh. 36. We take note of suggestion put by the defence that the informant was in fact not present on the spot at the time of occurrence and he had gone somewhere else to attend some marriage ceremony and after murder of Komal Singh was committed, information was conveyed to him and then only he arrived in the morning on 8.7.2008, thereafter proceedings were initiated. Otherwise the Investigating Officer himself must come out with any explanation as to how and why, under what circumstances preparation of inquest was postponed to next morning till 7:00 a.m. Therefore, testimony of both the witnesses of fact PW-1 and PW-2 is highly doubtful and full of embellishment and contradictions. 37. We may note contradictions on the point that PW-1 has said that he did not touch body of his father nor did he see any wound on his body. Reference may be made of his testimony as appearing on page 23 of the paper-book. 37. We may note contradictions on the point that PW-1 has said that he did not touch body of his father nor did he see any wound on his body. Reference may be made of his testimony as appearing on page 23 of the paper-book. However, PW-2 has stated in his testimony on page 29 of the paper-book that he alongwith Jitendra Kumar PW-1 picked the deceased Komal Singh. It means that their testimony on this aspect of touching dead body by Jitendra Kumar is in utter contrast to each other. How surprising is the fact that no cartridge was recovered from the spot although five shots had been fired in the room. The pellet which was recovered from chest cavity of the deceased Komal Singh and blood stained soil was not sent for chemical/forensic examination by the Investigating Officer. 38. It is surprising that PW-2 did not name any assailants in his statement recorded under Section 161 Cr.P.C. though he claimed before the trial Court that he had specifically named the assailants in his statement as such. PW-1 has stated in his cross-examination on page 25 of the paper-book that he cannot say how the assailants came on the spot and how they escaped. The assailants appeared on the spot suddenly. 39. We may express that the assailants’ side was none other than near close relatives of the informant side. Testimony of both the eye-witnesses is vacillating on material point on description of the occurrence. PW-2 has been confronted by suggesting that at the time of occurrence, he was watching dancing and singing programme at some distance inside the campus whereupon he denied the suggestion. However, he could not ascribe any reason, if such statement was given by him to the Investigating Officer under Section 161 Cr.P.C. It is also astonishing that not a single person except the informant spelt names of the accused-appellants to the Investigating Officer while he reached on the spot and enquired about the assailants. Therefore, cumulative scrutiny of testimony of the prosecution witnesses of fact, coupled with attendant facts and circumstances of the case, creates doubt and dent in the prosecution story. 40. Therefore, cumulative scrutiny of testimony of the prosecution witnesses of fact, coupled with attendant facts and circumstances of the case, creates doubt and dent in the prosecution story. 40. We can conclude that both the witnesses of fact were either not present or not willing to tell truth and in all probability, they cannot be said to have been present on the spot at the time of occurrence and that they witnessed the incident. It is cardinal principle of criminal jurisprudence that the prosecution is required to prove its case beyond reasonable doubt by coherent evidence. In this case, no such effort has fructified. Therefore, we hold that the prosecution has not been able to prove its charge under Section 302 IPC against the present appellants. 41. Learned trial Court while evaluating evidence on record and appraising facts and circumstances of the case misread into evidence and circumstances and wrongly recorded finding of conviction and awarded sentence which finding of conviction and sentence is vitiated in the eye of law and the same is liable to be set aside. The arguments extended on behalf of the appellants deserve merit. Therefore, conviction and sentence dated 11.2.2010 and 17.2.2010 passed by the Additional Sessions Judge, Court No. 11, Aligarh, in Sessions Trial No. 86 of 2009 State of U.P. v. Digambar Singh and others, arising out of Case Crime No. 259 of 2008, under Section 302 IPC, Police Station-Jawan, District-Aligarh, is set aside. Consequently, the present appeal is allowed. The appellants are acquitted of charge under Section 302 IPC. 42. In this case, the appellants are in jail. They shall be released forthwith unless and until they are wanted in connection with any other case. The appellants shall ensure compliance of Section 437A Cr.P.C. 43. Let a copy of this order/judgment be certified to the Court below for necessary information and follow up action.