JUDGMENT : Bala Krishna Narayana & Arvind Kumar Mishra-I, JJ. 1. By way of instant criminal appeal, challenge has been made to the validity and sustainability of the judgment and order of conviction dated 25.03.1994 passed by Special Judge (Dacoity Affected Area), Hamirpur, in Sessions Trial No. 441 of 1991, State of U.P. vs. Vijay Bahadur, arising out of Case Crime No. 241 of 1991, under Section 302 IPC, Police Station-Rath, District-Hamirpur, whereby the appellant has been sentenced to life imprisonment under Section 302 IPC. 2. Heard Sri Kamal Krishna, Senior Advocate assisted by Sri R.K. Srivastava, Sri Ghanshyam Das and Sri Avijit Saxena, learned counsel for the appellant, Sri A.N. Mulla, Kumari Meena, learned AGAs, Smt. Manju Thakur, brief holder for the State and perused the record of this appeal. 3. Gravamen of charge is rooted in the written report Ext. Ka-1 which was lodged by Mukundi Lal son of Kamla Ahirwar, resident of Village-Sarsai, Police Station Rath, District Hamirpur, on 29.06.1991 on 10.05 p.m. against the accused-appellant Vijay Bahadur and two others, with the allegations that the informant had purchased some land of one Raghunath, relative of Vijay Bahadur (accused-appellant). Vijay Bahadur wanted to purchase this land from him but he refused to sell the land to him which caused annoyance to the accused-appellant. On earlier occasion, Vijay Bahadur wanted to falsely implicate the informant's brothers Halkai and Dhal Chandra by firing on himself by country-made gun but on inquiry, the case was found to be false and no action was taken against his brothers by the police. This, too, intensified degree of annoyance of the accused-appellant. Today, the informant along with his brother Dhal Chandra were repairing roof of house. In the evening, the informant's brother had gone to answer nature's call towards Marghat and at the same time, the informant's son Gauri Shanker along with Munni Lal son of Mani Ram and Hardas son of Dallu also went towards Marghat for answering nature's call. When Dhal Chandra after easing himself, reached near bushes lying close to mud elevated path of field of Ballo Kachhi then the accused-appellant who along with another co-accused were lying in ambush possessing country-made gun, surrounded and said to him that he will not be spared since he is not giving land. When Dhal Chandra after easing himself, reached near bushes lying close to mud elevated path of field of Ballo Kachhi then the accused-appellant who along with another co-accused were lying in ambush possessing country-made gun, surrounded and said to him that he will not be spared since he is not giving land. The informant's brother Dhal Chandra after raising alarm ran towards the village when Vijay Bahadur along with another accused pursued him and fired on Dhal Chandra around 7:00 p.m. in the evening. Dhal Chandra after sustaining gunshot ran a few steps and fell down. The incident was witnessed besides the informant, his son Gauri Shanker and Munni Lal and Hardas. In this incident, Babu Ram elder brother of the accused-appellant Vijay Bahadur was also involved who was an employee in the forest department at Kanpur. Babu Ram had come to village on 24.06.1991 and had threatened in the presence of the villagers to kill him (informant). Babu Ram had asked Vijay Bahadur to kill the informant's side as and when opportunity arose and rest will be seen by himself. Request was made for lodging the report and taking appropriate action. The written report is Ext. Ka-1. 4. Record further reveals that contents of the written information were taken down in the concerned Check FIR at Case Crime No. 241 of 1991 under Sections 302, 109 IPC, at Police Station Rath, District Hamipur, on 29.06.1991 at 10:05 p.m. Check FIR is Ext. Ka-18. On the basis of entries so made in the check F.I.R., a case was registered against the accused-appellant in the relevant G.D. at serial no. 38 on 29.06.1991 at 10:05 p.m. at aforesaid case crime number at Police Station Rath under aforesaid sections of I.P.C. against accused-person. General diary copy is Ext. Ka-19. 5. As soon as the case was registered, investigation was entrusted to S.N. Rai PW-6 who proceeded to the spot and arrived at the place where the dead body was lying and held inquest of the deceased Dhal Chandra. It commenced at 11:50 p.m. on 29.06.1991 and continued after midnight and completed around 2:00 a.m. with the change of date to the next day i.e. 30.06.1991. Inquest report is Ext. Ka-4. 6. It commenced at 11:50 p.m. on 29.06.1991 and continued after midnight and completed around 2:00 a.m. with the change of date to the next day i.e. 30.06.1991. Inquest report is Ext. Ka-4. 6. In the opinion of the inquest witnesses and the Investigating Officer, all concurred that post mortem of the dead body of Dhal Chandra be ensured in order to ascertain real cause of death. Therefore, relevant papers were prepared such as Form 33 Ext. Ka-5, letter to Medical Officer, Hamirpur Ext. Ka-6, Police Form 13 challan dead body Ext. Ka-7, Photonash Ext. Ka-8. 7. Thereafter, dead body was sent for post mortem examination in the mortuary at Hamirpur where post mortem examination on the cadaver of the deceased Dhal Chandra was done by Dr. B.K. Gupta PW-5 on 30.06.1991 at 04:00 p.m. wherein he noted the following ante mortem injuries: 1. A firearm lacerated wound of entry 4 cm x 3 cm on left side of back of chest, 5 cm below the inferior angle of left scapula and 8 cm left to midline of back of chest. Margins of wound everted. Multiple firearm abrasions in an area of 30 cm x 25 cm around the wound on both sides of back of chest. 2. Multiple firearm abrasions on back of left arm in an area of 13 cm x 5 cm. 3. Multiple abrasions in an area of 4 cm x 4 cm on front of left patella. 4. An abrasion 2 cm x 1 cm on back of right forearm, 3 cm below right elbow joint. 8. In the opinion of the doctor, death might have occurred around 7:00 p.m. on 29.06.1991 which might have been caused by some firearm. Cause of death was due to shock and haemorrhage as a result of ante mortem injuries. This post mortem examination report is Ext. Ka-3. 9. In the meanwhile, the investigation continued. The Investigating Officer recorded statement of the complainant and various other persons and prepared site plan of the incident Ext. Ka-9. He took sample of simple and blood stained soil from spot where the dead body was lying and prepared memo of the same Ext. Ka-10. Ka-3. 9. In the meanwhile, the investigation continued. The Investigating Officer recorded statement of the complainant and various other persons and prepared site plan of the incident Ext. Ka-9. He took sample of simple and blood stained soil from spot where the dead body was lying and prepared memo of the same Ext. Ka-10. He also took simple and blood stained clay roll from the place where the deceased Dhal Chandra was stated to have been hit by firearm and he ran few steps from there and memo of the same was prepared as Ext. Ka-11. An empty container was also recovered from the spot which was stated to have been used by the deceased Dhal Chandra while going to attend nature's call and memo of the same is Ext. Ka-12. Two empty cartridges were recovered from the pathway used by the assailants for ensuring their escape. Memo whereof is Ext. Ka-13 on record. 10. The disputed land was also inspected by the Investigating Officer and map of the same was prepared which has been proved as Ext. Ka-14. The accused-appellant was arrested on 02.07.1991 and weapon used in the commission of the offence was also recovered from him and memo of the same was prepared which is Ext. Ka-2 on record. The Investigating Officer, after completing the investigation, filed charge sheet Ext. Ka-17 against the accused-appellant Vijay Bahadur. 11. Consequently, the committal proceedings took place and the case was committed to the court of Sessions from where it was transferred to the Special Judge (DAA) Hamipur, for conduction of trial and disposal of the case, after numbering it as Sessions Trial No. 441 of 1991 State vs. Vijay Bahadur. Learned trial Judge heard the prosecution and the accused-appellant on point of charge and was prima-facie satisfied with the case against the accused-appellant, accordingly, framed charge under Section 302 IPC. Charge was read over and explained to the accused-appellant who abjured charge and claimed to be tried. 12. In turn, the prosecution was required to adduce its testimony in support of the charge brought against the accused-appellant to prove his guilt and in the process it produced, in all, six witnesses whose reference is being sketched herein-below. 13. Hardas PW-1 was stated to be an eyewitness named in the first information report. He has turned hostile and has not supported the prosecution version. 13. Hardas PW-1 was stated to be an eyewitness named in the first information report. He has turned hostile and has not supported the prosecution version. Mukundi Lal PW-2, is the informant and brother of the deceased Dhal Chandra and he also claims himself to be an eyewitness of the incident. Similarly, Munni Lal PW-3 and Ram Charan PW-4 have also claimed to be eyewitnesses and have described about the incident. Dr. B.K. Gupta PW-5 has conducted autopsy on the cadaver of the deceased Dhal Chandra and has proved post mortem examination report Ext. Ka-3. S.N Rai PW-6 is the Investigating Officer. He has detailed process adopted by him in completing the investigation. He has proved the filing of charge sheet Ext. Ka-3 against the accused-appellant Vijay Bahadur. 14. After that much, evidence for the prosecution was closed and statement of the accused-appellant was recorded under Section 313 Cr.P.C. wherein he claimed to have been falsely implicated in this case on account of enmity and wished to adduce testimony on his behalf. He produced certificates dated 29.06.1991 and 25.08.1992. Thereafter, evidence for the defence was also closed and the case was posted for arguments. 15. The case was heard on merit by the learned trial Judge who after appraisal of facts and evaluation of the evidence and circumstances of the case, returned aforesaid finding of conviction against accused-appellant under Section 302 IPC and sentenced the accused-appellant to life imprisonment under Section 302 IPC. 16. Resultantly, this appeal. 17. It has been vociferously claimed on behalf of the appellant that the incident is stated to have taken place near some bushes in the evening, whereas, it is not exactly the case, as such. Reliance cannot be placed on the lodging of the first information report as claimed by the prosecution. The incident in fact took place after night had fallen. The informant, though claims himself to have witnessed the incident, cannot normally see the incident from a distance of 135 steps when the fire was shot. 18. It has been further contended on behalf of the appellant that scribe of the written report has not been produced by the prosecution, for the reasons best known to it. The informant, though claims himself to have witnessed the incident, cannot normally see the incident from a distance of 135 steps when the fire was shot. 18. It has been further contended on behalf of the appellant that scribe of the written report has not been produced by the prosecution, for the reasons best known to it. The first information report is ante timed and is outcome of deliberation made in consultation with the police in order to rope in falsely the accused-appellant in this case as is explicit from perusal of testimony of Mukundi Lal PW-2 appearing on page 24 of the paper-book when he says that report was written by Diwan Ji. 19. It has been next contended on behalf of the appellant that the accused-appellant had no direct motive to kill the deceased Dhal Chandra. There was no occasion for the accused-appellant for lying in ambush so as to kill the deceased Dhal Chandra. Testimony of witnesses of fact, on the whole, is sketchy, vacillating and outcome of tutoring in order to give false shape to the prosecution case set up against the accused-appellant. In fact, no witness has seen the incident. Obviously when no one saw the incident, it was not possible for the witnesses to have spelt out specifically about the exact place from where fire was shot by the accused-appellant on the deceased Dhal Chandra. That is why no specific place has been described or depicted in the site plan wherefrom fire was shot on the deceased Dhal Chandra. 20. It has been next contended on behalf of the appellant that testimony of the witnesses of fact is replete with contradictions. Even investigation of the case has not been fairly conducted by the Investigating Officer. It was motivated against the accused-appellant just to fill up loopholes in the prosecution case. A holistic view of the entire case would itself render the incident most improbable. The informant, in fact, as per site plan, was present at place 'H' shown in the site plan which lies far away from the actual place of occurrence. Testimony of the prosecution witnesses brings out a case that some house was purchased, whereas, the first information report shows that some land was purchased by the informant Mukundi Lal. No specific question on point of motive has been pressed in questionnaire put under Section 313 Cr.P.C. 21. Testimony of the prosecution witnesses brings out a case that some house was purchased, whereas, the first information report shows that some land was purchased by the informant Mukundi Lal. No specific question on point of motive has been pressed in questionnaire put under Section 313 Cr.P.C. 21. It has been lastly contended on behalf of the appellant that in this case, record profusely reflects that the first information report being written by Diwan Ji becomes doubtful and hits to the root of the prosecution case and no worthy credence can be placed on it. Likewise, testimony on record is to be discarded as tutored and embellished one. Case of the prosecution is not proved beyond reasonable doubt. Therefore, the impugned judgment and order of conviction is on the face erroneous and perverse. 22. Per contra, learned AGA while retorting to the aforesaid contentions has submitted that the first information report is prompt and contains all necessary details against the accused-appellant. It is established tenet of criminal jurisprudence that the first information report need not contain details of every aspect asserted qua the incident. 23. Learned AGA has further submitted that presence of the prosecution witnesses on the spot is every much perceptible from assertions made in the first information report and the time of the incident which describes the incident to have occurred at a time when the deceased Dhal Chandra had gone along with others to attend nature's call and he was shot while he was returning home. The company of others with deceased was obviously there who saw the incident. It is not the case of the prosecution that the deceased Dhal Chandra was shot and he fell down and died. It is a case where after the shot was fired on the deceased Dhal Chandra, he walked upto few steps and covered a little distance and thereafter, he fell down and died. 24. Learned AGA has next submitted that the place of occurrence is certain as blood stained clay roll was collected by the Investigating Officer from the spot where the dead body was lying. The site plan also divulges each and every particular point of the incident. The incident has been reasonably proved. 24. Learned AGA has next submitted that the place of occurrence is certain as blood stained clay roll was collected by the Investigating Officer from the spot where the dead body was lying. The site plan also divulges each and every particular point of the incident. The incident has been reasonably proved. Merely because the Investigating Officer failed to specify some particular place in the site plan wherefrom shot was fired that alone would not render the entire exercise a nullity and no illegality can be imputed in the conduction of fair investigation. 25. Learned AGA has submitted that motive to kill the deceased Dhal Chandra has been extensively proved and it is of multifarious dimensions. It is not expected of a person that he will exactly define the motive behind the crime and mind set of the accused. The motive behind the incident was in shape of land and property which has been amply proved by testimony of the prosecution witnesses. The statement of Mukundi Lal PW-2 appearing on page 24 of the paper-book is the statement which cannot be taken to be correctly given under just impression and it appears that it was given under some misimpression because in the beginning part of his testimony, this witness has elaborately proved lodging of the first information report by dictating it to the scribe – Ram Dayal. Merely because the scribe has not been produced by the prosecution, that by itself would not suggest any adverse inference against the prosecution, since opportunity was available to the defence to produce the scribe, if the defence so wished. Testimony of the prosecution witnesses is consistent, clinching and inspires confidence. The prosecution has been able to prove its case beyond reasonable doubt. Learned trial court while acting upon the same has rightly convicted the accused-appellant and passed just sentence. 26. We have also considered the rival submissions and taken into consideration rival claims. In the backdrop of above factual aspect of the case, the core consideration that arises for determination of this appeal relates to fact whether the prosecution has been able to prove charge under Section 302 IPC beyond reasonable doubt against the accused? 27. At the very outset, before adverting to the merits of the case vis-a-vis factual aspect and circumstances, it would be appropriate and relevant to have a dip into the contents of the written report Ext. Ka-1. 27. At the very outset, before adverting to the merits of the case vis-a-vis factual aspect and circumstances, it would be appropriate and relevant to have a dip into the contents of the written report Ext. Ka-1. As per allegations contained in the first information report, it is reflected that some information was given at the Police Station Rath, District Hamirpur on 29.06.1991 around 10:05 p.m. whereby allegations were made initially against three accused. However, after trial only one among the three accused was found guilty and convicted and he happens to be the present appellant. 28. The allegations were made to the extent that the informant had purchased land of some Raghunath who was relative of Vijay Bahadur and due to which Vijay Bahadur was inimical towards him and was adamant to purchase that land from informant which was refused by him (the informant). On the day of occurrence, the informant was repairing his roof along with his brother (deceased Dhal Chandra) and in the evening his brother went to answer nature's call towards Marghat and he was fallowed by the informant's son Gauri Shanker, Munni Lal and Hardas. After relieve himself, the deceased Dhal Chandra was returning and as soon as he reached at the mud elevated path where some bushes were grown, Vijay Bahadur along with one another person appeared on the spot from behind the bushes possessing country-made gun in his hand and said that he is not giving land, today he will kill him. On this, the deceased Dhal Chandra after raising alarm ran towards village when he was pursued by the appellant along with another accused and was shot around 7:00 p.m. in the evening. The deceased Dhal Chandra after receiving gun shot injury walked to a few steps and fell down. 29. It has been alleged in the ending part of the written report that apart from the informant, the incident was also witnessed by the informant's son Gauri Shanker, Munni Lal and Hardas. It has been indicated in the first information report that Babu Ram elder brother of the accused-appellant Vijay Bahadur was also involved in this incident because he had in past threatened the informant's side of dire consequences. 30. It has been indicated in the first information report that Babu Ram elder brother of the accused-appellant Vijay Bahadur was also involved in this incident because he had in past threatened the informant's side of dire consequences. 30. In view of above particular backdrop of factual aspect of the case, we will have to critically scrutinize testimony of the prosecution witnesses basically on point whether they were present on the spot and were in a position to witness the incident as claimed by them. 31. Insofar as the point of occurrence is concerned, eyewitness account of the incident has been given by three witnesses namely Hardas PW-1, Mukundi Lal-2 and Munni Lal PW-3. At this stage, Hardas PW-1 who is named in the first information report to have seen the incident, has not supported the prosecution version. His testimony in his examination in chief reflects that on the day of the occurrence, he had gone towards barn (Khalihan) to answer nature's call. However, he drew blank on point of occurrence of any incident of firing having taken place before him caused by the accused-appellant Vijay Bahadur. 32. He (PW-1) has categorically stated that he neither saw the appellant nor did he see him possessing country-made gun. The accused-appellant Vijay Bahadur did not abuse the deceased Dhal Chandra. Gauri Shanker son of Mukundi Lal was also not seen by him (PW-1) there. In the last line of examination in chief, he has stated that he had not seen the accused-appellant Vijay Bahadur firing on the deceased Dhal Chandra. He has been declared hostile and has been cross examined by the prosecution whereupon he has denied his statement having been recorded by the Investigating Officer, as such. One thing is obvious that this witness also had gone to answer nature's call towards barn (Khalihan) on the day of occurrence where he did not see Gauri Shanker son of the informant, Vijay Bahadur (accused-appellant) and Dhal Chandra (deceased). Thus testimony of PW-1 is of no assistance on point of occurrence. 33. Now we are left with testimony of the other two eyewitnesses namely Mukundi Lal PW-2 and Munni Lal PW-3. Their testimony on the point of occurrence, on careful perusal, reveals that both of them have claimed themselves to have seen the occurrence. Thus testimony of PW-1 is of no assistance on point of occurrence. 33. Now we are left with testimony of the other two eyewitnesses namely Mukundi Lal PW-2 and Munni Lal PW-3. Their testimony on the point of occurrence, on careful perusal, reveals that both of them have claimed themselves to have seen the occurrence. But before adverting to that aspect of the testimony, it would be appropriate to deal with the motivating part of the case which was stated to be the main cause behind the incident and due to which the incident was caused by the accused-appellant Vijay Bahadur. 34. It has been alleged in the first information report that the accused-appellant Vijay Bahadur was inimical towards the informant on account of fact that the informant had purchased some land of Raghunath who was relative of the accused-appellant Vijay Bahadur. The accused-appellant wanted to purchase that land which was refused by the informant. This was very much resented by the accused-appellant. 35. It is further reflected from the first information report that the allegations have been made to the extent that the accused-appellant Vijay Bahadur had also lodged report against the informant's brother Halkai and Dhal Chandra after causing hurt to himself in order to falsely implicate them in false case. The case was investigated into and it was found to be false. Therefore, no action was taken by the police. This further intensified grudge and ill-will of the accused-appellant -Vijay Bahadur. 36. Insofar as the motivating aspect of this case is concerned, it is obvious that main grudge of the accused-appellant was against the informant because, it was the informant who had purchased land of relative of the accused-appellant Vijay Bahadur and he (informant) refused to sell the land back to Vijay Bahadur. But insofar as testimonial account of this aspect, as emanating from testimony of Mukundi Lal PW-2, is concerned we come across fact that Mukundi Lal PW-2 in fact had purchased house of Raghunath and not land because he has clarified in his testimony that the accused-appellant Vijay Bahadur and Moti Lal were inimical towards him since he had purchased house of Raghunath and they wanted to take back the house. He has further clarified that in case they (Vijay Bahadur and Moti Lal) want to take this house, they should give Khandahar (ruins) of Dhani Ram to him (informant). He has further clarified that in case they (Vijay Bahadur and Moti Lal) want to take this house, they should give Khandahar (ruins) of Dhani Ram to him (informant). This proposal was not acceptable to the accused-appellant. 37. Insofar as the point of occurrence is concerned, testimony regarding the same has been given to the ambit that on the day of occurrence, the informant (PW-2) along with his brother Dhal Chandra was repairing his roof in Nai Harijan Basti. Dhal Chandra went to answer nature's call towards Marghat in the evening around 7:00 p.m. He was being accompanied by Munni Lal, Gauri Shanker and Hardas. When Dhal Chandra was returning after relieving himself and reached on the elevated mud path of the field of Balli Kachchi, the accused-appellant Vijay Bahadur along with one co-accused appeared from behind bushes and surrounded the informant's brother Dhal Chandra. At that point of time, Gauri Shanker, Munni Lal and Hardas also arrived on the spot near Dhal Chandra. The accused persons fired on the informant's brother whereupon he raised alarm, then the informant reached on the spot. Dhal Chandra sustained gun shot injury and fell down in the field of Madan Khangar and died. The assailants escaped towards southern side. 38. It has further been testified by PW-2 that the written report was got scribed by him with one Ram Dayal and was handed over at the Police Station Rath. Insofar as his eye account testimony on the incident is concerned, we have some useful inkling emanating from topography of the place of occurrence where the incident took place about the presence of the informant on the spot at the relevant time of the incident when firing took place. The spot described by word 'H' in the site plan Ext. Ka-9 is the place in the extreme north/ western side of map and the place where the dead body was lying, has been spotted by word 'A'. The distance between 'A' to 'H' has been shown as 135 steps (in the map). 39. It has been testified by PW-2 in his examination in chief that alarm was raised when fire was shot on Dhal Chandra then this witness reached on the spot and Dhal Chandra fell down in the field of Madan Khangar. The distance between 'A' to 'H' has been shown as 135 steps (in the map). 39. It has been testified by PW-2 in his examination in chief that alarm was raised when fire was shot on Dhal Chandra then this witness reached on the spot and Dhal Chandra fell down in the field of Madan Khangar. If we give practical shape to his testimonial account of occurrence, it hardly sounds to our reason that a man who was sitting and repairing his roof at a distance of 135 steps from the actual spot would reach on the spot and would see the occurrence with his naked eyes, because it was the sound of fire and alarm which was first heard by the informant while he was at place 'H' which place lies at a distance of 135 steps from the actual spot 'A' – where the shot had hit the deceased. Firing and hitting the shot was instantaneous on the spot and at that point of time PW-2 was at place 'H' shown in the site plan. How can PW-2 reach on the spot instantly within no time when the fire was shot on the deceased. It is hard to believe under circumstance, for reason that alarm was raised by the deceased Dhal Chandra only after shot had hit him and then he ran away and fell down in the field of Madan Khangar and died. 40. It means that Mukundi Lal (PW-2) became aware of the situation after alarm was raised and only then he had occasion to run towards the place of occurrence and in the process he must have taken his own time for reaching on the spot. It cannot be expected under prevailing circumstance that as soon as alarm was raised Mukundi Lal instantly incarnated himself on the spot. Above analogy dispels presence of Mukundi Lal on the spot at the relevant point of time when shot was fired on the deceased. Moreover, the assailants had made their escape good soon after firing on the deceased. It means they disappeared from the spot immediately within seconds of the commission of the offence, when PW-2 was scampering from spot 'H' to the place of occurrence. It means that actual act of shooting on the deceased Dhal Chandra by the accused-appellant Vijay Bahadur could not have been witnessed by PW-2. It means they disappeared from the spot immediately within seconds of the commission of the offence, when PW-2 was scampering from spot 'H' to the place of occurrence. It means that actual act of shooting on the deceased Dhal Chandra by the accused-appellant Vijay Bahadur could not have been witnessed by PW-2. Therefore, on point of occurrence, we cannot believe testimony of Mukundi Lal PW-2 that he in fact saw the occurrence. His presence on the spot at the relevant point of time, when the incident of firing took place stands negated by the conspicuous circumstances of the case and particularly, on account of his version of the incident when he says that he reached on the spot after hearing alarm raised by his brother Dhal Chandra when fire was shot on the deceased Dhal Chandra. 41. Here one more aspect requires serious consideration, that a man would take at least sometime to cover a distance of 135 steps and it is not the case that the assailants remained present on the spot even for a short while after firing, but the act of firing was simultaneously followed by the accused fleeing away from the spot towards southern side. Therefore, act of shooting was immediately followed by act of fleeing away and that way, if the informant was required to cover 135 steps then the assailants who were already in motion must have gone as long as 150 steps away – from the spot. Then under such particular circumstances of the case, it is virtually impossible for PW-2 to have seen the occurrence and the act of shooting that way. On the basis of above critical scrutiny of testimony of PW-2 and prevailing circumstances, we have every reason to disbelieve testimony of PW-2 on point of his being eyewitness of the occurrence. 42. Thus, on the point of occurrence, we are now left with the testimony of Munni Lal PW-3. He has also testified to the extent that Mukundi Lal had purchased house of Raghunath which house Vijay Bahadur and Babu Ram wanted to take back. This created dispute between Vijay Bahadur and Mukundi Lal. Babu Ram and Vijay Bahadur had earlier threatened the informant side. 43. On point of occurrence, testimony of PW-3 has come forth to the ambit that it was around 7:00 p.m. the sun was about to set. He was returning after answering nature's call. This created dispute between Vijay Bahadur and Mukundi Lal. Babu Ram and Vijay Bahadur had earlier threatened the informant side. 43. On point of occurrence, testimony of PW-3 has come forth to the ambit that it was around 7:00 p.m. the sun was about to set. He was returning after answering nature's call. He was being accompanied by Hardas and Gauri Shanker. As soon as he came close to Dhal Chandra, accused-appellant Vijay Bahadur along with one another person appeared from behind bushes, possessing country-made gun in their hands. Accused-appellant Vijay Bahadur said to Dhal Chandra that in case the land is not given to him, he will kill him. Dhal Chandra after throwing away container ran towards the village then accused-appellant Vijay Bahadur along with another person fired on Dhal Chandra with their respective weapons. Dhal Chandra covered a distance of 5 to 10 steps and fell down in the field of Madan Khangar and the accused Vijay Bahadur and Moti Lal fled away towards southern side. He goes on to testify that Hardas and Gauri Shanker were also present at the time of occurrence. When this witness reached near Dhal Chandra, he had expired. His testimony does not indicate that Mukundi Lal, too, had arrived on the spot and he also witnessed the occurrence. His entire examination in chief is silent on point of presence of Mukundi Lal at the time of actual occurrence. 44. Testimony of Hardas recorded before the trial court as PW-1 is indicative of fact that Gauri Shanker was not seen by him while he went to answer nature's call. Therefore, it is obvious that at the relevant point of time, presence of Gauri Shanker on the spot becomes dubious and claim of this witness (PW-3) regarding presence of Gauri Shanker on the spot, too, is rendered dubious. 45. Core consideration that crops up before us relates to fact that had this witness (PW-3) been present on the spot, he would have indicated with precision the exact place or spot from where fire was shot by the accused-appellant on Dhal Chandra. He has testified in his cross examination, appearing on page 30 of the paper-book, that he had shown the place/spot from where accused-appellant had shot on Dhal Chandra to Daroga Ji. 46. But on careful perusal of site plan Ext. He has testified in his cross examination, appearing on page 30 of the paper-book, that he had shown the place/spot from where accused-appellant had shot on Dhal Chandra to Daroga Ji. 46. But on careful perusal of site plan Ext. Ka-9, we do not come across any such specific spot or place from where accused-appellant Vijay Bahadar had fired on the deceased Dhal Chandra. Absence of such pivotal spot in the site plan cannot be ignored, for certain reasons. This particular aspect of the case is very much self-speaking of fact that exact place/spot from where the fire was shot, was not seen by this witness. Had the specific spot been shown to the Investigating Officer then that spot must have been specifically shown in the site plan by him (Investigating Officer). The site plan Ext. Ka-9 on the face reflects on each and every minor/relevant detail of the incident and it also contains description of distance from one spot to another spot. It describes each and every particular detail that was shown and told to the Investigating Officer, but the exact place/spot from where the accused-appellant Vijay Bahadur fired on the deceased Dhal Chandra is altogether missing in the site plan. In this view of the matter, claim of PW-3 to the extent that he had shown the spot, from where the accused-appellant fired on the deceased Dhal Chandra, appears to be a false statement, meaning thereby he was not present on the spot and he did not see the actual occurrence. May be, that he arrived on the spot after a short while after the assailants had fled away from the scene. 47. Another vital aspect of the case regarding lodging of the FIR gets exposed when we peruse testimony of PW-2 on page 24 of the paper-book. Perusal of testimony on page 24 signifies that the entire incident was managed and deliberated by the police. The first information report itself was written by or at the instance of Diwan Ji on blank paper, thereafter thumb impression of the informant was obtained on it. 48. It has been elicited in cross-examination of PW-2 on page 24 of the paper-book that Diwan Ji had written report and he also impressed date on it. This specific testimony creates doubt even on lodging of the first information report at the instance of PW-2 Mukundi Lal. 48. It has been elicited in cross-examination of PW-2 on page 24 of the paper-book that Diwan Ji had written report and he also impressed date on it. This specific testimony creates doubt even on lodging of the first information report at the instance of PW-2 Mukundi Lal. If he (PW-2) got the written report scribed through Ram Dayal, the situation would have been improved by the prosecution by producing the scribe, but he has been withheld by the prosecution, for the reasons best known to it. Non-production of scribe under circumstance creates a dent in the lodging of the first information report as the same becomes handiwork of the police. At this stage, it can be conveniently observed that the written report was in fact written by Diwan Ji himself and not by the scribe otherwise how such piece of testimony has emerged in the cross-examination of PW-2, -that it was written by Diwan Ji. He (PW-2) had no reason or occasion to state that particular fact regarding the written report. That very particular aspect in itself is fatal and creates doubt in the prosecution story. Here lodging of the written report itself becomes dubious and it cannot be said to be outcome of the informant's mouth but was handiwork of the police and was written by Diwan Ji. 49. In view of above clear cut analogy of fact and testimony on record and evaluation of testimony of PW-2 and PW-3 when conjointly read with the site plan Ext. Ka-9, reflects that the prosecution story is highly doubtful and that way, it is hard to believe that the incident was caused by the accused-appellant Vijay Bahadur as claimed by the prosecution. We can observe that jurisprudential principle also lays stress on fact that it is the prosecution who has to prove its case beyond all reasonable doubts. In case any doubt is created in the prosecution story, then the benefit obviously goes to the accused. 50. Here in this case, lot of doubts have arisen because of multifarious infirmity inherently perceptible, which create serious dent in the prosecution story and the entire incident is rendered dubious on account of fact that the written report Ext. Ka-1 was written by none other than Diwan Ji. 50. Here in this case, lot of doubts have arisen because of multifarious infirmity inherently perceptible, which create serious dent in the prosecution story and the entire incident is rendered dubious on account of fact that the written report Ext. Ka-1 was written by none other than Diwan Ji. This aspect has virtually closed the door of the prosecution and testimony of the prosecution witnesses, on the whole, becomes sketchy, tutored and full of embellishments and it does not inspire confidence as it lacks coherence and consistency. 51. 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. 52. The arguments extended on behalf of the appellant deserve merit. Therefore, judgment and order of conviction and sentence dated 25.03.1994 passed by Special Judge (Dacoity Affected Area), Hamirpur, in Sessions Trial No. 441 of 1991, State of U.P. vs. Vijay Bahadur, arising out of Case Crime No. 241 of 1991, under Section 302 IPC, Police Station-Rath, District-Hamirpur, is set aside. Consequently, the present appeal succeeds and the same is allowed. The appellant is acquitted of charge under Section 302 IPC. 53. In this case, the appellant is on bail. He need not surrender before the Court. However, he shall ensure compliance of Section 437A Cr.P.C. 54. Let a copy of this order/judgment be certified to the court below for necessary information and follow up action.