JUDGMENT : Arvind Kumar Mishra-I, J. 1. By way of instant criminal appeal, challenge has been made to the judgment and order of conviction dated 12.02.2004 passed by the Additional Sessions Judge, Court No. 3, Fatehpur, in Sessions Trial No. 140 of 2000 State of U.P. Vs. Ramesh Chandra Tiwari, arising out of Case Crime No.48 of 2000, under Section 302 IPC, Police Station-Kishanpur, District-Fatehpur and Sessions Trial No.141 of 2000, State Vs. Ramesh Chandra Tiwari, arising out of Case Crime No.53 of 2000 under Section 25 Arms Act, Police Station-Kishanpur, District-Fatehpur whereby the appellant Ramesh Chandra Tiwari has been sentenced to life imprisonment coupled with fine Rs.20,000/- under Section 302 IPC, with default stipulation for two months' additional rigorous imprisonment and further sentenced to three years' rigorous imprisonment coupled with fine Rs.2000/-, with default stipulation for additional one month's rigorous imprisonment. Both the sentences were directed to run concurrently. 2. Heard Sri Jai Shanker Audichya, learned counsel for the appellant, Sri A.N. Mulla assisted by Kumari Meena, Sri J.K. Upadhyay and Mrs. Manju Thakur, learned AGAs for the State and perused the record. 3. It trickles out from record that on the basis of written report moved by informant Brij Bhan Singh son of Late Laxman Singh, resident of Village-Naraini, Police Station-Kishanpur District-Fatehpur, the first information report was lodged regarding murder of his son Ram Baran Singh committed by the appellant by firing on him on 14.3.2000 at 7:00 p.m., with specific allegations that informant's son Ram Baran Singh returned from Fatehpur to Naraini and was chewing betel at betel shop of Vijay along with Raju Tiwari, resident of Naraini. Appellant, Ramesh Chandra Tiwari also arrived over there and demanded of him 20 feet land adjoining to the road. This was opposed by informant's son Ram Baran Singh. This infuriated Ramesh Chandra Tiwari. He took out country-made pistol when his son ran away from there in order to save himself and entered into the house of Babu Lal Halwai in the courtyard. He was pursued by Ramesh Chandra Tiwari. After entering in the house, Ramesh Chandra Tiwari shot dead informant's son in the courtyard of the house. Some emergency light was lit at the betel-nut shop of Vijay. This shop was located in the house of Babu Lal Halwai. The incident was witnessed by Raju Tiwari and Satya Dev Pandey, resident of Naraini and by the few other persons. After entering in the house, Ramesh Chandra Tiwari shot dead informant's son in the courtyard of the house. Some emergency light was lit at the betel-nut shop of Vijay. This shop was located in the house of Babu Lal Halwai. The incident was witnessed by Raju Tiwari and Satya Dev Pandey, resident of Naraini and by the few other persons. It was stated that the dead body is lying on the spot. This report was scribed by Raju Tiwari son of Rudra Nath Tiwari, resident of Village-Naraini, Police Station Kishanpur, District Fatehpur and the same is Exhibit Ka-1. 4. Contents of written report were taken down in the concerned check F.I.R. registered at Case Crime No. 48 of 2000 under Section 302 I.P.C., at 10:00 p.m. on 14.03.2000 at Police Station Kishanpur which is Exhibit Ka-14. On the basis of entries so made in the check F.I.R., a case was registered in the relevant G.D. at serial no. 35 on 14.3.2000 at 10:00 p.m. at aforesaid case crime number at Police Station Kishanpur under aforesaid section of I.P.C. against appellant, which is Exhibit Ka-16. 5. The investigation ensued soon after registration of the case against accused Ramesh Chandra Tiwari. Investigation was taken over by Shambhu Dayal Shukla PW-4. The Investigating Officer proceeded to the spot, appointed inquest witnesses and prepared inquest report of deceased Ram Baran Singh. Its preparation commenced at 8:00 a.m. on 15.03.2000 and completed at 8:30 a.m. In the opinion of the inquest witnesses and the Investigating Officer, it was thought proper to send the body for postmortem examination for ascertaining real cause of death. The inquest report is Exhibit Ka-2. 6. In the process, relevant papers for sending dead body for autopsy were prepared which are photo nash, challan dead body, letter to R.I. and letter to CMO. These papers have been exhibited as Exhibit Ka-3, Ka-4, Ka-5 and Ka-6, respectively. The Investigating Officer also prepared site plan of the place of occurrence as Exhibit Ka-7. He also collected simple and bloodstained clay roll from the spot and prepared memo of the same as Exhibit Ka-8. 7. During course of investigation, appellant Ramesh Chandra Tiwari gave information regarding the weapon used for committing the murder on 26.4.2000. Therefore, the Investigating Officer took him to the place of recovery under the bridge of river 'Sasur Khaderi'. He also collected simple and bloodstained clay roll from the spot and prepared memo of the same as Exhibit Ka-8. 7. During course of investigation, appellant Ramesh Chandra Tiwari gave information regarding the weapon used for committing the murder on 26.4.2000. Therefore, the Investigating Officer took him to the place of recovery under the bridge of river 'Sasur Khaderi'. The Investigating Officer recovered one country-made gun along with one discharged cartridge entangled in its nozzle from the spot at 6:45 pm at the pointing out of the accused. Both the recovered articles were taken into possession and recovery memo of the same was prepared which is Exhibit Ka-9. Thereafter, the accused and recovered articles were taken to the police station where an FIR was lodged and a case was registered at Case Crime No.53 of 2000 under Section 25, Arms Act, at Police Station Kishanpur, on 26.04.2000 at 7:35 p.m. Copy of check FIR in this regard is Exhibit Ka-15. The relevant GD entry by which case was registered against the accused Ramesh Chandra Tiwari under Section 25 Arms Act, is Exhibit Ka-17. 8. Record reflects that post mortem examination on the cadaver of the deceased Ram Baran Singh son of Brij Bhan Singh was done by Dr. Subeer Kumar Sen PW-7, on 15.03.2000 at 2:30 p.m. wherein the following ante mortem injuries were found on the dead body:- “A firearm wound of entry 4 cm x 2 cm on right side of face 6 cm away from right ear and just lateral to the outer angle of right eye. There was blackening and tattooing all around the wound. Margins irregular. On dissection, wound was found a tunnel leading to the brain, fracturing the underlying bones and lacerating the membranes and brain tissues. The brain tissues were blood mixed. Three pieces of metallic bullet of irregular size and shape recovered from brain tissue. Three pieces of metallic bullet of irregular size and shape sealed in an envelope and sent to the Superintendent of Police, Fatehpur through Chief Medical Superintendent, District Hospital, Fatehpur. On internal examination, frontal bone and right temporal bones were found fractured. Both lungs were congested and heart was full with blood. 250 gm. pasty food was found in the stomach. Large and small intestine were partially full with gases. Gall bladder was partially full. Other parts of the body were normal. Urinary bladder was full.” 9. On internal examination, frontal bone and right temporal bones were found fractured. Both lungs were congested and heart was full with blood. 250 gm. pasty food was found in the stomach. Large and small intestine were partially full with gases. Gall bladder was partially full. Other parts of the body were normal. Urinary bladder was full.” 9. In the opinion of the doctor, cause of death was stated to be due to coma as a result of ante-mortem firearm injuries. Duration of post mortem examination report from approximate time of death was rated about one day. Dr. Subeer Kumar Sen PW-7 has proved post mortem examination report as Exhibit Ka-23. 10. The Investigating Officer also recorded statement of various persons. He also prepared site plan of the place of recovery as Exhibit Ka-11 and ensured process for forensic test of the recovered weapon and cartridge at 'Vidhi Vigyan Prayogshala', Lucknow and prepared a docket of these materials on 17.5.2000 and also kept simple and bloodstained clay roll under sealed envelope and sent the same to Vidhi Vigyan Prayogshala at Lucknow through CMO concerned. The papers relating to aforesaid activities have been proved as Exhibit Ka-12 and Ka-13, respectively. 11. Record reflects that forensic examination report dated 24.01.2001 was obtained in regard to the country-made gun and the cartridge from Vidhi Vigyan Prayogshala, Lucknow. The report is Exhibit Ka-27. Similarly another forensic report pertaining to the presence of blood in the collected soil from the spot and clothes and other articles meant for forensic test is dated 20.9.2000 which have been marked Exhibits Ka-22 and Ka-24, respectively. The investigating officer after completing various other formalities ultimately filed charge-sheet against the accused Ramesh Chandra Tiwari, which is Exhibit Ka-10. 12. Record further divulges that the aforesaid case pertaining to Arms Act was investigated into by S.I. Ramveer Singh. He has proved preparation of spot map as Exhibit Ka-18 and also obtained sanction for prosecuting the accused under Arms Act from the concerned District Magistrate. The sanctioned document is marked as Exhibit Ka-19. He has proved filing of Charge-sheet No.46 of 2000 pertaining to Case Crime No. 53 of 2000 under Section 25 Arms Act against accused Ramesh Chandra Tiwari. The charge-sheet filed against the accused at Case Crime No. 53 of 2000 is Exhibit Ka-20. 13. The sanctioned document is marked as Exhibit Ka-19. He has proved filing of Charge-sheet No.46 of 2000 pertaining to Case Crime No. 53 of 2000 under Section 25 Arms Act against accused Ramesh Chandra Tiwari. The charge-sheet filed against the accused at Case Crime No. 53 of 2000 is Exhibit Ka-20. 13. After filing of charge-sheet, committal proceeding took place and the trial court was entrusted with the task of hearing and disposal of the concerned Sessions Trial Nos. 140 of 2000 (pertaining to Case Crime No. 48/2000) under Section 302 IPC and 141 of 2000 (pertaining to Case Crime No. 53 of 2000) under Section 25 Arms Act. 14. The learned trial Judge heard both the sides on point of charge and was prima-facie satisfied with case against the accused. Consequently, trial court framed charges under Section 302 IPC and 25 Arms Act. Charges were read over and explained to the accused who abjured charges and opted for trial. 15. In turn, the prosecution was asked to adduce its testimony whereupon the prosecution produced in all 7 witnesses. A brief sketch of witnesses is utinfra:- Raju Tiwari PW-1 is scribe of the written report and claims himself to be an eye-witness of the occurrence. He has proved written report Exhibit Ka-1. Babu Lal PW-2 is also an eye-witness of the occurrence. He has described the incident. Brij Bhan Singh @ Nanku Singh PW-3 is the informant and father of the deceased. He has claimed to have dictated contents of written report to Raju Tiwari. S.I. Shambhu Dayal Shukla PW-4 is the Investigating Officer. He has described the various steps he took in completing the investigation. He is also informant in the matter of recovery of weapon-country-made gun and empty cartridge-from accused Ramesh Chandra Tiwari on 26.4.2000 from bushes under bridge of river 'Sasur Khaderi' which report is lodged at Case Crime No. 53 of 2000 under Section 25 Arms Act. He has also filed charge-sheet against accused Ramesh Chandra Tiwari after completing the investigation in Case Crime No. 48 of 2000 under Section 302 IPC. He has also filed charge-sheet against accused Ramesh Chandra Tiwari after completing the investigation in Case Crime No. 48 of 2000 under Section 302 IPC. Constable Dinesh Kumar Awasthi PW-5 has noted various entries of concerned date whereby cases under Section 302 IPC and under Section 25 Arms Act were registered against accused Ramesh Chandra Tiwari and has proved check FIR pertaining to Case Crime No.48 of 2000 under Section 302 IPC as Exhibit Ka-14 and the relevant GD entry No. 24 whereby case was registered against the accused on 14.3.2000 under aforesaid section of IPC, has been proved as Exhibit Ka-16. This witness has also proved check FIR pertaining to Case Crime No. 53 of 2000 entered at 7:35 pm. on 26.4.2000 which is Exhibit Ka-15 and registration of case against the accused under Section 25 Arms Act as entered in the concerned GD on 26.4.2000 and the same has been proved as Exhibit Ka-17. S.I. Ramveer Singh PW-6 is the Investigation Officer of case pertaining to Arms Act at Case Crime No. 53 of 2000. He has prepared site plan of the place of recovery and also obtained sanction for prosecuting the accused and filed charge-sheet as Exhibit Ka-20 against accused Ramesh Chandra Tiwari. Dr. Subeer Kumar Sen PW-7 has conducted autopsy on the cadaver of Ram Baran Singh at District Hospital, Fatehpur on 15.03.2000 at 2:30 pm. and has proved postmortem examination report as Exhibit Ka-23. 16. Except as above, no other evidence was produced by the prosecution. Consequently, the evidence for the prosecution was closed and statement of accused Ramesh Chandra Tiwari was recorded under Section 313 Cr.P.C., wherein he claimed innocence and stated that his implication in this case is on account of village 'partybandi'. Ram Baran Singh, Raju Tiwari, Satyadev Pandey are all pocket witnesses of police and they have good relations with the Station House Officer of concerned police station. Ram Baran Singh was killed in the darkness of night by unknown persons and he has been falsely implicated in the case. 17. Appellant filed four papers before the trial court which papers have been referred in the judgment of the trial court itself and the same need not be reiterated at this stage. However, reference of the same shall be made as and when the context so requires. 17. Appellant filed four papers before the trial court which papers have been referred in the judgment of the trial court itself and the same need not be reiterated at this stage. However, reference of the same shall be made as and when the context so requires. No other evidence except documentary papers was adduced by the accused, therefore, evidence for the defence was closed. 18. The case was heard on its merit by the learned Judge who after appraisal of facts and evaluation of the evidence and circumstances of the case, returned finding of conviction against appellant under Section 302 IPC and 25 Arms Act and sentenced to life imprisonment coupled with fine Rs.20,000/- under Section 302 IPC, with default stipulation for two months' additional rigorous imprisonment and further sentenced to three years' rigorous imprisonment coupled with fine Rs.2000/-, with default stipulation for additional one month's rigorous imprisonment. Both the sentences were directed to run concurrently. 19. Consequently, this appeal. 20. It has been vigorously urged on behalf of the appellant that prosecution witnesses have not witnessed the incident. The first information report is inordinately delayed. It is ante-timed. The inquest report was prepared the very next morning of the incident on 15.03.2000, whereas, it had commenced at 8:00 p.m. After completion of inquest report, police in collusion with the informant Brij Bhan Singh, in absence of any specific information qua perpetrator of crime, thought it convenient to name the accused in the crime and his name was inserted in the first information report only after preparation of the inquest report. 21. Learned counsel for the appellant has submitted that glaring contradictions appear in the testimony of various witnesses of fact. These contradictions are substantial and hit to the root of the prosecution case. Prosecution case is full of infirmities and improbabilities. The circumstances of the case overwhelmingly point out innocence of the applicant. The recovery of weapon is absolutely fake, which false recovery stands exposed by forensic examination report dated 24.01.2000 where from it is apparent that the weapon recovered was not found to have been used in the commission of the offence. This forensic report is Exhibit Ka-27. 22. The circumstances of the case overwhelmingly point out innocence of the applicant. The recovery of weapon is absolutely fake, which false recovery stands exposed by forensic examination report dated 24.01.2000 where from it is apparent that the weapon recovered was not found to have been used in the commission of the offence. This forensic report is Exhibit Ka-27. 22. Learned counsel for the appellant went on to add that the Investigating Officer has not conducted investigation in right perspective but he has noted down whimsical statement of various pocket witnesses of the police who are on good terms with the Investigating Officer. The judgment of the trial court is based on misreading of entire evidence and appraisal of wrong facts and circumstances of the case. Consequently, the judgment of conviction is perverse and not sustainable in the eye of law. 23. Per contra, the learned AGA retorted to aforesaid arguments by submitting that the appellant has been named in the first information report. The first information report was lodged soon after the incident at 10:00 p.m. The distance from the place of occurrence to the police station was 10 kms. and incident occurred at 7:00 p.m. on 14.3.2000. The presence of prosecution witnesses on the spot is natural. Their testimony on the whole is consistent and full of vivid description of the occurrence. Human blood was found on the articles/clothes that were sent for chemical examination which also confirm sanctity of the investigation done in this case and also innocuous testimony of prosecution witnesses of fact. 24. The doctor who conducted postmortem examination on cadaver of Ram Baran Singh has also suggested that the death of the deceased could have been caused around 7:00 p.m. on 14.3.2000. To say that the first information report is ante-timed, is absolutely without any basis because there is neither supporting testimony nor any independent circumstance which may whisper about any such manoeuvring with testimony, on the part of the Investigating Officer and the informant to implicate the appellant falsely in the case. There was no reason for falsely naming the appellant in the commission of the offence and sparing the real culprit. 25. Certain minor inconsistencies are bound to occur in the testimony of prosecution witnesses and they are not expected to give uniform pictorial description of the manner and style of occurrence. There was no reason for falsely naming the appellant in the commission of the offence and sparing the real culprit. 25. Certain minor inconsistencies are bound to occur in the testimony of prosecution witnesses and they are not expected to give uniform pictorial description of the manner and style of occurrence. These contradictions when weighed properly will appear to be of little consequence and they don't hit at the root of the prosecution case. The testimony of prosecution witnesses of fact inspires confidence. The recovery of country-made gun was made at the pointing out of the accused himself on 26.4.2000 which recovery has been very much proved by the informant. The learned trial Judge has appreciated evidence in right perspective and has rightly convicted the appellant. 26. We have considered the rival submissions and also taken into account the rival claims and in our considered opinion, moot point that arises for adjudication of this appeal relates to fact as to whether the incident was in fact witnessed by the prosecution witnesses who claim to have seen the occurrence and the prosecution has been able to prove its case beyond reasonable doubt against the accused? 27. Prosecution has produced certain witnesses of fact as the eye-witnesses of the occurrence, namely Raju Tiwari PW-1 who claims to have been accompanying the deceased Ram Baran Singh at the betel shop of Vijay at Village Naraini on 14.03.2000 when the incident took place after arrival of accused Ramesh Chandra Tiwari. Apart from PW-1, another eye-witness of the occurrence is Babu Lal PW-2, in whose house the incident was allegedly caused by the accused Ramesh Chandra Tiwari. Apart from above two witnesses of fact, the third witness of the incident is the first informant Brij Bhan Singh @ Nanku Singh, father of deceased Ram Baran Singh. He also claims to have arrived on the spot after hearing noise. Testimony of all the aforesaid three witnesses of fact has got relevance whereby the factum of occurrence is to be weighed and to be evaluated whether true or not. In so far as testimony of Brij Bhan Singh PW-3 is concerned, he has stated categorically in his examination in chief on page no. 41 of the paper book that he came to know about the murder only at the instance of Babu Lal and Raju Tiwari that Ramesh Chandra Tiwari has murdered Ram Baran Singh. In so far as testimony of Brij Bhan Singh PW-3 is concerned, he has stated categorically in his examination in chief on page no. 41 of the paper book that he came to know about the murder only at the instance of Babu Lal and Raju Tiwari that Ramesh Chandra Tiwari has murdered Ram Baran Singh. Brij Bhan Singh PW-3 also stated that he arrived on the spot only after hearing the noise. Not only this, he has also testified in his cross-examination on page 42 of the paper book that he dictated the report, on the basis of description of contents which were narrated to him by Babu Lal and Raju Tiwari. It means that Brij Bhan Singh PW-3 never saw the actual occurrence. His testimony, in so far as it relates to the point of actual occurrence is neither trustworthy nor relevant. Therefore, on point of occurrence, his testimony is to be discarded by us. 28. We may cumulatively look into wholesomeness of the testimony of the other two witnesses of fact Raju Tiwari and Babu Lal PW-1 and PW-2, respectively in order to assess the factum of occurrence as emanating from the testimony of these two eyewitnesses. 29. To begin with, we may start with the specific testimony of Raju Tiwari PW-1. Admittedly, Raju Tiwari PW-1 is the scribe of the written report Exhibit Ka-1 and he has proved the written report as Exhibit Ka-1. His testimony in the very first paragraph appearing on page 25 of the paper book indicates that on 14.3.2000, it was around 7:00 p.m., he himself, Ram Baran Singh and Satya Dev Pandey were chewing betel at the betel shop of Vijay where Ramesh Chandra Tiwari came and demanded from Ram Baran Singh his land located at crossing adjacent “20 feet” land adjoining to the road at the crossing, which was refused by Ram Baran Singh. The accused whipped out country-made gun, then Ram Baran Singh started running away. He was chased by Ramesh Chandra Tiwari with gun in hand and they were followed by witnesses Satya Dev Pandey and Brij Bhan Singh @ Nanku Singh. The deceased while in the process of fleeing away came to the shop of Babu Lal, where emergency light was lit. The deceased entered into shop and arrived in the courtyard (“aangan”) of the house. This witness along with others also arrived over there. The deceased while in the process of fleeing away came to the shop of Babu Lal, where emergency light was lit. The deceased entered into shop and arrived in the courtyard (“aangan”) of the house. This witness along with others also arrived over there. In the meanwhile, Ramesh Chandra Tiwari shot dead Ram Baran Singh at range point blank due to which Ram Baran Singh died. Ramesh Chandra Tiwari escaped through gallery. He further testified in his examination-in -chief that report was dictated by Brij Bhan Singh which was written by him. He has identified his signature thereon and signature of Brij Bhan Singh which was marked as Exhibit Ka-1. He has been cross-examined wherein certain questions have been asked to test veracity of the witness. One of such questions is regarding fact whether Ramesh Chandra Tiwari ever moved any complaint against his (PW-1) fair price shop and another whether licence of fair price shop was suspended. These questions have been denied by this witness. He has also stated that he is witness of the inquest report and witness of attachment/proceeding process under Section 82/83 Cr.P.C. (drawn against accused). He has been confronted with his statement recorded under Section 161 Cr.P.C. wherein a number of contradictions have surfaced when compared with his previously recorded statement under Section 161 and subsequently given before the trial court. 30. In his examination in chief, this witness (PW-1) has deposed that when he arrived at betel shop of Vijay along with Ram Baran Singh and Satya Dev Pandey, then there came Ramesh Chandra Tiwari. But in his 161 statement, he has stated that when he reached at betel shop of Vijay, Ramesh Chandra Tiwari and Ram Baran Singh were already present over there. The statement recorded by the Investigating Officer also does not contain any such description regarding presence of Satya Dev Pandey along with this witness at the betel shop. He has further stated in his cross-examination on page 28 of the paper book that Ramesh Chandra Tiwari was already present at the betel shop when he arrived there. He cannot assign any reason as to how such statement was recorded by the Investigating Officer. He has further stated in his cross-examination on page 28 of the paper book that Ramesh Chandra Tiwari was already present at the betel shop when he arrived there. He cannot assign any reason as to how such statement was recorded by the Investigating Officer. Not only this, the statement given in the examination in chief also to the ambit that Ramesh Chandra Tiwari asked for “20 feet” land situated at the crossing, whereas, no such statement was ever recorded by Daroga Ji that Ramesh Chandra Tiwari demanded/asked for the land situated at the crossing adjoining to the road. Here, he cannot assign any reason as to how such statement was recorded. Contradiction again figures in his statement on point that Daroga Ji never recorded any statement that Ramesh Chandra Tiwari chased Ram Baran Singh with gun in hand. If such statement has not been recorded by the Investigating Officer, then he is unable to ascribe any reason for the same. Similarly, omission in his statement surfaces on point that he had told Daroga Ji that Satya Dev Pandey and Brij Bhan Singh followed Ram Baran Singh and if such statement has not been recorded by the Investigating Officer, he cannot assign any reason for the same. He has been confronted on point whether he gave statement to the Investigating Officer that accused Ramesh Chandra Tiwari also entered inside the shop located in the house of Babu Lal, when following deceased Ram Baran Singh. Reply shows that he never gave such statement to the Investigating Officer. If such statement doesn't appear under Section 161 Cr.P.C., he cannot assign any reason. Omission in his statement goes further to the extent that he never gave any such statement to the Investigating Officer that Ram Baran Singh died on the spot and Ramesh Chandra Tiwari made his escape good through the gallery. 31. All these omissions and contradictions and particularly on point of the very genesis of the offence pertaining to demand of “20 feet” land adjoining to road near crossing is found to be an improvement on natural point. This statement made before the trial court smacks of embellishment and vital improvement in the testimony of this witness (PW-1). He goes on to add that Daroga Ji came on the spot, he called him and recorded his statement after 5-6 hours of the incident. This statement made before the trial court smacks of embellishment and vital improvement in the testimony of this witness (PW-1). He goes on to add that Daroga Ji came on the spot, he called him and recorded his statement after 5-6 hours of the incident. The incident is alleged to have occurred around 7:00 p.m. Counting 6 hours from 7 p.m. on 14.03.2000, it is apparent that the statement of PW-1 Raju Tiwari might have been recorded sometime between 12:00 midnight to 1:00 a.m. in the night intervening 14/15.03.2000. He has stated that at the time of when his statement was recorded there was sufficient light as emergency light was illuminating. This way, it is obvious that around midnight of 14.03.2000, the Investigating Officer was present on the spot and there was sufficient light. 32. We will discuss import and impact of light on the spot (where the occurrence took place), but for a moment, we pause and proceed on to the point of testing veracity of the prosecution witnesses Raju Tiwari PW-1. Non-mentioning of presence of and name of Satya Dev Pandey on the spot appears a deliberate to increase number of witnesses of fact. The point is that sufficient light was available on the spot then how and why the Investigating Officer did not prepare the inquest report after his arrival on the spot although the Investigating Officer Shambhu Dayal Shukla PW4 in his entire statement recorded by the trial court has not come out with any explanation or reference about non-preparation of inquest report in the night itself on the spot, though in his examination in chief, he has testified straightway that after obtaining copy of check FIR and Panchayatnama, he arrived on the spot. As per testimony of PW-1, his statement was recorded after 5-6 hours of the incident. Then pertinent question arises as to when the light was sufficiently available on the spot, then how and for what reason inquest was deferred till next morning. 33. Here, on bare perusal of the inquest report Exhibit Ka-2, it transpires that the inquest report was also proved by the Investigating Officer himself. We notice that time of commencement of the inquest report has been shown to be 08:00 a.m. and it was completed at 8:30 a.m. on 15.03.2000. 33. Here, on bare perusal of the inquest report Exhibit Ka-2, it transpires that the inquest report was also proved by the Investigating Officer himself. We notice that time of commencement of the inquest report has been shown to be 08:00 a.m. and it was completed at 8:30 a.m. on 15.03.2000. The entire prosecution case is abysmally silent about the reason and the circumstance as to why the inquest was deferred till next morning upto 08:00 a.m. after the occurrence when the Investigating Officer had arrived on the spot and there was sufficient light on the spot. In the absence of any reasonable and whothy explanation on the above point, we have been persuaded on behalf of the appellant that till the time of preparation of the inquest report, the name of actual culprit was not known and this was the reason that the police in collusion with the complainant on account of enmity with the accused falsely named him in the FIR. 34. We cannot brush aside such a suggestion which stands on unexplained circumstance on vital aspect of the case which gives rise to possibility of deliberation on point of timing of lodging of FIR because deferring of inquest to the next morning at 8:00 a.m. without assigning any reason, either by the Investigating Officer or by the prosecution witnesses, strongly tilts in favour of accepting the suggestion as true, for obvious reason that possibility of deliberation and false implication cannot be ruled out. 35. The very place of occurrence, has been stated to be the courtyard of house of Babu Lal where shop was located. Babu Lal admits that he runs a shop and he has two houses but he does not reside at the house where the incident took place, although he has stated about presence of light in the courtyard in somewhat varying style. On point of light in the house which is used by Babu Lal for residential purpose also comprises a courtyard. In this courtyard, no emergency light was lit on the day of occurrence. Then the natural query arises as to how and why a residential place (courtyard where incident took place) which had been deserted and was not being used for residential purposes by this witness, will be furnished with emergency light and for what purpose and this natural query has not been clarified. 36. Then the natural query arises as to how and why a residential place (courtyard where incident took place) which had been deserted and was not being used for residential purposes by this witness, will be furnished with emergency light and for what purpose and this natural query has not been clarified. 36. While scrutinizing deeply the point of availability of emergency light allegedly lit on the spot, we discover that no memo of any emergency light was ever prepared in written by the Investigating Officer. The Investigating Officer has made improvement on page 58 of the paper book in his cross-examination in order to evade the situation that he did not give custody of emergency light to Babu Lal and on page 59 of the paper book in the very first line, the Investigating Officer has clarified that he did not prepare any write up for emergency light. This serious omission when read conjointly with facts and attendant circumstances of this case assumes greater relevance and gives thrust to fact that the story of presence of emergency light on the spot is an improvement in order to give coherence to the prosecution version. 37. We also notice that PW-1 and PW-2 have stated about presence of Satya Dev Pandey and father of Ram Baran Singh (Brij Bhan Singh @ Nanku Singh) on the spot when the incident took place. But from perusal of testimony of father of deceased PW-3 Brij Bhan Singh @ Nanku Singh, it transpires that he himself has testified in his examination in chief that he arrived on the spot only after hearing noise and whatever was told by Raju Tiwari was incorporated in the first information report. Thus, it is obvious that both Raju Tiwari and Babu Lal are deliberately improving their version on point of presence of Brij Bhan Singh on the spot at the time of occurrence. This goes on to reflect on the veracity of the testimony of these two witnesses (PW-1 and PW-2) and questions the investigation of the case. Thus, it is obvious that both Raju Tiwari and Babu Lal are deliberately improving their version on point of presence of Brij Bhan Singh on the spot at the time of occurrence. This goes on to reflect on the veracity of the testimony of these two witnesses (PW-1 and PW-2) and questions the investigation of the case. Investigation as regards recovery of country made gun, also stands exposed by fact that some country-made gun along with one discharged cartridge was recovered on 26.04.2000 from bushes under bridge of river 'Sasur Khaderi' around 6:45 p.m. by the Investigating Officer Shambhu Dayal Shukla PW-4 at the pointing of the accused, and this country-made gun was sent for forensic examination whereupon report was obtained-which is Exhibit Ka-27. This report specifically mentions that the gun was not used as claimed by prosecution. Therefore, the recovery loses its legal significance and it cannot be said that Daroga Ji in fact recovered the country-made gun which was used in the commission of the offence. 38. We also notice that PW-1 Raju Tiwari has testified to fact that Satya Dev Pandey and Brij Bhan Singh followed the accused Ramesh Chandra Tiwari when accused Ramesh Chandra Tiwari was chasing the victim. But expression made herein-above virtually establishes fact that no statement regarding presence of Satya Dev Pandey on the spot was given by PW-1 Raju Tiwari to the Investigating Officer and Brij Bhan Singh @ Nanku PW-3 stated that he arrived on the spot only after hearing noise and he dictated the written report, whatever was told by Babu Lal and Raju Tiwari. Therefore, testimony of PW-1 Raju Tiwari appears to be improved one and modified on the point of presence of these persons. 39. We have already discussed that availability of light on the spot at the time of occurrence has been deliberately improved, for various reasons counted herein above. Suggestion has come from the defence that in fact the deceased was killed in the darkness of night and the assailants were not seen by anyone, appears to be correct one, for various reasons discussed herein above. If the occurrence had taken place around 7:00 p.m. on 14.03.2000, then there was no worthy reason, when the light was sufficiently available on the spot, to defer holding of inquest of the deceased Ram Baran Singh. If the occurrence had taken place around 7:00 p.m. on 14.03.2000, then there was no worthy reason, when the light was sufficiently available on the spot, to defer holding of inquest of the deceased Ram Baran Singh. The Investigating Officer did not come out with any reasonable explanation on the point. 40. In view of above, testimony of prosecution witnesses of fact when read conjointly with the testimony of the Investigating Officer does not inspire confidence. Raju Tiwari PW-1 also gave specific statement on the basis of which attachment proceedings were drawn against the accused. The statement was given to the Investigating Officer pertaining to fact that wife of Ramesh Chandra Tiwari was slowly removing property and cattle to another village Aurai, if attachment process is not issued promptly. Therefore, it is obvious that this witness (PW-1) has some oblique motive for devising on various grounds against accused which testimonial aspect upon careful scrutiny by us is found to be fraught with explicit and inherent contradictions in material particulars. 41. The incident has its origin while the accused and the deceased were at betel shop of Vijay where some demand was raised by the accused for "20 feet" land adjoining to the road at the crossing which was opposed by the deceased. Thereafter, the accused whipped out a country-made gun and tried to assault the accused and he pursued him to the place of occurrence, where he shot him dead. There are varying descriptions on point of arrival of the accused on the spot whether he was present at betel shop before the deceased arrived at the betel shop or he arrived at betel shop subsequent to the arrival of the accused and this aspect of the case assumes greater relevance, therefore, it was incumbent on the part of prosecution to have produced Vijay-the betel shopkeeper who might have clarified these particular facts but the shopkeeper has not been produced by the prosecution before the trial court. 42. We may also observe that on the point of availability of emergency light in the courtyard (“aangan”), statement of Babu Lal PW-2 on page 37 of the paper book has been given to the effect that emergency light was one which could be shifted by hand from place to place and Daroga Ji watched dead body and injuries on the dead body in the emergency light. However, Daroga Ji said that he did not prepare any memo of emergency light because it was fixed in the wall, whereas, testimony of other witnesses of fact does not show that emergency light was so fixed in the wall. Therefore, presence of the light on the spot becomes doubtful. 43. It is obvious that all the witnesses of fact and particularly PW1 and PW-2 have given their testimony in that regard, which is full of serious contradictions on material points. Their testimony on the whole is indicative of embellishments, improvements and modifications. Even the doctor witness who conducted postmortem examination on the cadaver of deceased has stated in the very first line of his cross-examination on page 69 of the paper book that he cannot say as to when he came to possess the police papers. This particular aspect also works in favour of the accused, which gives thrust to the suggestion that the first information report is ante-timed. The incident is not consistently proved and participation of the accused in the commission of the crime and the incident being witnessed by PW-1 and PW-2 is highly doubtful. Therefore, the accused is entitled to benefit of doubt. 44. The learned trial Judge while appreciating evidence, facts and circumstances of this case misread the same and erroneously recorded finding of conviction heavily based on conjectures and surmises, bereft of material on record. Consequently, the arguments advanced by the learned counsel for the appellant carry force. Therefore, judgment and order of conviction dated 12.02.2004 passed by the Additional Sessions Judge, Court No. 3, Fatehpur, in Sessions Trial No. 140 of 2000 State of U.P. Vs. Ramesh Chandra Tiwari, arising out of Case Crime No.48 of 2000, under Section 302 IPC, Police Station-Kishanpur, District-Fatehpur and Sessions Trial No.141 of 2000, State Vs. Ramesh Chandra Tiwari, arising out of Case Crime No.53 of 2000 under Section 25 Arms Act, Police Station-Kishanpur, District-Fatehpur, is set aside by us. The appellant is acquitted of all charges framed against him. 45. Accordingly, the present appeal is allowed. 46. In this case, the appellant is in jail. He shall be released forthwith unless and until he is wanted in connection with any other case. 47. Let a copy of this order/judgment be certified to the court below for necessary information and follow up action.