JUDGMENT : (Delivered by Hon'ble Ravindra Nath Kakkar, J.) 1. We have heard Shri Mangala Prasad Rai, learned counsel for the appellants and Shri Amit Sinha, learned A.G.A. for the State. 2. The present criminal appeal has been filed against the judgment and order dated 28.05.1983 passed in Sessions Trial No. 736 of 1980 convicting the appellants under Sections 302 read with 34 IPC and sentencing them to undergo life imprisonment. 3. Perusal of the record shows that the trial for the offences under Section 302 read with Section 34 IPC has proceeded against the three accused persons namely Shamshuddin, Kallu and Shiv Prakash. The learned trial Judge framed charges against the three accused persons on 04.09.1981 in furtherance of their common intention committing the murder of Dinna @ Ram Kumar at 4:00 pm on 29.04.1978 at the door of Devi Domar located in the village Devlan under the Ghazipur police station of district Fatehpur. The accused pleaded not guilty and claimed trial. 4. The prosecution version as borne out from the first information report and the prosecution evidence in brief are as follows:- Deceased Dinna @ Ram Kumar was resident of village Devlan. Smt. Ram Rati (PW-2) is mother of the deceased Dinna @ Ram Kumar. Deceased Dinna had enmity with the accused persons before the above said occurrence. Accused Shamshuddin and his other accomplices had committed assault on the person of Dinna @ Ram Kumar before the instant occurrence of which a case under Section 307 IPC involving Shamshuddin etc. was pending. The other accused persons namely Kallu and Shiv Prakash are the cohorts of accused Shamshuddin and all these three accused persons are the residents of village Devlan. 5. On the day of occurrence on 29.04.1978 at 4:00 pm, deceased Dinna @ Ram Kumar was sitting at the door of his house. Bhura Behna's bhanja (nephew), whose name is not known and who belongs to the same village, approached and caught hold of Dinna and took him to the house of Devi Domar where all these three accused persons were already present. Accused Shamshuddin had a gun, accused Kallu had a country made pistol and accused Shiv Prakash had a lathi in his hand. Accused Shamshuddin had a gun, accused Kallu had a country made pistol and accused Shiv Prakash had a lathi in his hand. As soon as, Smt. Ram Rati, mother of the deceased got information that his son had been taken away, she went up to her devar (husband's younger brother) Mannu Prasad (PW4) and narrated him the incident to which Mannu Prasad and Smt. Ram Rati with raising alarm went behind Dinna @ Ram Kumar. 6. It is alleged that the nephew of Bhura Behna took Dinna to these accused persons and said to them "here is your enemy. Prey on him." Hearing these words, Shamshuddin with his gun and Kallu with his country made pistol opened fire at Dinna. Dinna fell down. Thereafter, accused Shiv Prakash assaulted him with the lathi. As a result of sustaining all the injuries, Dinna died at the spot. 7. Further as per the allegation, PW-3 Sundar, Chaukidar (watchman) of the village was also present at the time of occurrence. After the said occurrence, Chaukidar Sundar went to police station Ghazipur and got his oral report registered at 10:15 o'clock which is marked as Ex. Ka-11. 8. PW-6 Durga Prasad Dubey recorded the report and registered a case against the accused persons under Section 302 IPC and made its entry against Report No. 22 in the G.D which is marked as Ex. Ka-12. 9. Station House Officer, Ram Pratap Tripathi PW-5 took the investigation of the case on the same day and reached at the place of incident accompanied by the police personnel and recorded the statements of the deceased's mother and uncle (chacha). On the next day, at 6:30 am in the presence of the pancha witnesses, I.O. had prepared a panchayatnama which is marked as Ex. Ka-1. Further, the Investigating Officer collected the samples of plain and blood stained earth from the place of incident and after keeping these in separate cans, sealed them properly. Its memo, which is marked as Ex. Ka-2, was also prepared by him. Further, the Investigating Officer prepared a site-map of the place of the occurrence which is marked as Ex. Ka-9. The Investigating Officer prepared a report (Ex. Ka-3) to C.M.O. report to Pradhan for the return of the deceased's clothes (Ex. Ka-4), report to Pratisar Nirikshak (Ex. Ka-5), challan laash (Ex. Ka-6), photo laash (Ex. Ka-7) and sample of the seal (Ex. Ka-9. The Investigating Officer prepared a report (Ex. Ka-3) to C.M.O. report to Pradhan for the return of the deceased's clothes (Ex. Ka-4), report to Pratisar Nirikshak (Ex. Ka-5), challan laash (Ex. Ka-6), photo laash (Ex. Ka-7) and sample of the seal (Ex. Ka-8) for the purposes of conducting the post-mortem examination of the corpus of the dead body. He sent the dead body of the deceased in a proper sealed condition to District Hospital, Fatehpur. After completion of the investigation, the Investigating Officer has submitted a charge sheet against the accused persons which is marked as Ex. Ka-10. 10. Dr. B.R. Bajpayee conducted the post-mortem examination at 4:30 pm on 30.04.1978 at District Hospital. According to him, deceased was aged about 27 years and his death occurred one day before the post-mortem examination. The stomach of the deceased was found to be empty and there was presence of gases in large and small intestines. The following ante-mortem injuries were found on the person of the deceased:- (1) A lacerated wound 1½" x ½" x bone deep, on the left side of forehead and ½" above the left brow. (2) A lacerated wound 2" x 1" x bone deep, on the left part of head 1" above the left ear. The parietal bone beneath it was fractured. The membrane of left side brain was found ruptured and blood-cot measuring 1½ x 1" was present. (3) A lacerated wound 2" x ¼" x skull deep, on the right side of head, three inches above the right ear. (4) A lacerated wound 1" x ¼" x cartilage deep, on the upper part of the outer ear. (5) A wound of bullet-entry, 1" x 1" through and through, 1½" below the corner of the mouth on the right part of chin. The margins of the wound were inverted and lacerated. Blackening and singeing were present around the wound. The direction of the wound was downwards to upwards. The bone and teeth were found broken beneath it. The balls were taken out from the right part of face. (6) Exit wound by bullet, 1¼" x ¼" through and through, on the right part of the face at ¼" outside at the corner of mouth on the right side, the margins were everted and lacerated. The bullet entered through the entry wound no. 5. (7) An abrasion 2½" x 2" on the left posterior. Dr. (6) Exit wound by bullet, 1¼" x ¼" through and through, on the right part of the face at ¼" outside at the corner of mouth on the right side, the margins were everted and lacerated. The bullet entered through the entry wound no. 5. (7) An abrasion 2½" x 2" on the left posterior. Dr. Bajpayee had prepared the examination report (Ex.Ka-13). 11. Genuineness of the post-mortem examination report (Ex. Ka-13) is dispensed with by the defence under Section 294 Cr.P.C. Accordingly, it has been admitted as evidence and got exhibited. 12. The prosecution has produced six witnesses before the Court. 13. PW-1 Prahalad Singh is the witness of panchayatnama. He proved that the panchayatnama of the body was prepared by the Inspector in his presence. This witness has also proved the recovery memo of the collected plain and blood-stained earth which is marked as Ex. Ka-2. 14. PW-2 Smt. Ram Rati, mother of the deceased was testified as an eye-witness who stated that at the time of occurrence, a litigation had already been going on against accused Shamshuddin and another person in the case of assault on Dinna. Further stated that on the fateful day at around 4:00 pm, when she was at her home, nephew (bhanja) of Bhura Behna caught hold of his son Dinna @ Ram Kumar from her door step and took him to Devi Domar's house. At this point of time, she rushed to her devar Mannu Lal's house and along with him, she reached at the place of occurrence raising alarms. She has further stated that the said three accused were already present in front of Devi Domar's door. Bhura's nephew bhanja handed over Dinna @ Ram Kumar to these three accused persons, exhorting, "look, your enemy has come, make a prey of him." On this, Shamshuddin opened fire with his gun and so did Kallu with his country made pistol. On being shot, Dinna immediately fell down on the ground. Then, Shiv Prakash gave him lathi blows. Especially stating that the said occurrence was witnessed by Smt. Ram Rati, her devar Mannu Prasad and Chaukidar Sundar. PW-2 has also stated that these accused persons, at the time of beating Dinna, were threatening that if anybody dare to come, they shall be shot down. Then, Shiv Prakash gave him lathi blows. Especially stating that the said occurrence was witnessed by Smt. Ram Rati, her devar Mannu Prasad and Chaukidar Sundar. PW-2 has also stated that these accused persons, at the time of beating Dinna, were threatening that if anybody dare to come, they shall be shot down. On the alarm being raised by the people present at the scene of occurrence, these accused persons fled away towards river Yamuna to the south of the village. These accused persons are a source of duress and fear in the mind of villagers and that is why no one from the village is ready to depose against them. 15. PW-3, Sundar Lal is stated to be the eye witness of the incident and he is the person who lodged a complaint in the police station but while deposing before the Court, he had not supported the prosecution story and he was declared hostile. It transpires from his statement that he himself had not witnessed the occurrence rather he was sleeping at his house at the time of occurrence. It was Mannu, uncle of the deceased who had informed him about the incident that Dinna has been killed. Thereafter, when PW-3 along with Mannu came over in front of Devi Domar's door, he saw a dead body lying there. This witness has even denied the first information report lodged by him stating that he did not lodge any such report. Instead, he after getting this report scribed at police station, put his thumb impression over it without hearing and reading its contents. 16. PW-4 Mannu Prasad, who is the real uncle of the deceased Dinna @ Ram Kumar, has not corroborated the prosecution story to the material version with regard to the presence involvement and complicity in the commission of the crime by the named accused persons. After supporting to some extent in the examination-in-chief, he had stated that when he reached the place of occurrence, accused persons were absconding after killing Dinna @ Ram Kumar. As per his statement, he along with Dinna's mother had followed Dinna but he was left behind being an old man. 17. PW-5 Ram Pratap Tripathi, Investigating Officer of the case has proved memo of blood-stained and plain earth (Ex. Ka-2) and all the relevant papers prepared on the spot for the purposes of the post-mortem of the deceased (Ex. As per his statement, he along with Dinna's mother had followed Dinna but he was left behind being an old man. 17. PW-5 Ram Pratap Tripathi, Investigating Officer of the case has proved memo of blood-stained and plain earth (Ex. Ka-2) and all the relevant papers prepared on the spot for the purposes of the post-mortem of the deceased (Ex. Ka-3 to Ka-8), site-plan (Ex. Ka-9) and Charge-sheet (Ex. Ka-10). 18. PW-6, Durga Prasad Dubey as Head Moharir of the police station stated that on dictation of the Sundar Lal, Chaukidar (watchman), he scribed FIR (Ex. Ka-11) and registered the case in the report marked as Ex. Ka-12 in the General Diary. 19. After close of the prosecution evidence, statements of three accused persons under Section 313 Cr.P.C. were also recorded in detail followed by the description of the circumstances emanated against them from the prosecution evidence which the accused persons stated to be totally false and the accused were charge-sheeted out of enmity. Accused Shiv Prakash further stated that Dinna @ Ram Kumar was killed after sunset by some unidentified persons but these accused had been falsely implicated due to enmity. The defence had not adduced any evidence before the trial Judge. 20. After hearing both the parties, learned trial Court vide judgment dated 28.05.1983 convicted Shamshuddin, Kallu and Shiv Prakash under Section 302/34 IPC and sentenced them to undergo imprisonment for life. 21. Learned counsel for the accused-appellants raised the following contentions:- (1) First information report is not proved in this case. The scriber of the first information report has not supported the prosecution story. The informant himself turned hostile in this case. In spite of this, judgment of conviction has been recorded which is bad in the eye of law. (2) The presence of the eye witnesses are doubtful. Even the real uncle of the deceased turned hostile in this case and not supported the charges levelled against the accused persons. But in spite of this fact situation, the learned trial Judge has convicted the accused-appellant which is against the weight of prosecution evidence. (3) Ocular testimony is totally belied by the medical evidence as the accused persons namely Shamshuddin and Kallu were alleged to be armed with gun and country made pistol and both had opened fire on the deceased but there is only one fire arm injury. (3) Ocular testimony is totally belied by the medical evidence as the accused persons namely Shamshuddin and Kallu were alleged to be armed with gun and country made pistol and both had opened fire on the deceased but there is only one fire arm injury. Further one of the accused persons, who is not named in the FIR as per the allegation of the prosecution, was armed with Ballam. But no such injury caused by the Ballam was found on the body of the deceased. No independent and reliable witnesses have been produced by the prosecution to prove the charges levelled against the accused. 22. Therefore, impugned judgment is to be set aside and the appeal deserves to be allowed. 23. Per contra, the learned A.G.A. opposed the arguments raised by the learned counsel for the appellants and in support of the impugned judgment stated that the judgment of conviction and order of sentence has been passed after recording the reasons thereof which requires no interference from this Court and appeal is to be dismissed. 24. Having heard both the counsels, we have perused the lower court record. So far as the contentions raised with regard to the first information report, we find that the incident is alleged to be at 4:00 pm on 29.04.1978. Oral complaint has been lodged at 10:15 pm on the same day. The distance of the police station from the place of occurrence is said to be 8 miles. Informant of the incident is named as Sundar, Chaukidar (watchman) resident of village Devlan, police station Ghazipur district Fatehpur. The FIR has been lodged against three named accused persons namely Shamshuddin, Kallu and Shiv Prakash and one nephew (bhanja) of Bhura Behna under Section 302 of IPC and the deceased was Dinna @ Ram Kumar. PW-3 Sundar, who is the complainant and on whose instructions FIR has been lodged against the accused persons at police station, is also stated to be an eye witness of the incident. But before the trial Judge, he neither supported the prosecution story nor proved the FIR. He being declared as hostile and opportunity to cross-examine was afforded to the prosecution but nothing material comes out from his evidence which supports the prosecution version. Rather it transpires from the statement that he had not witnessed the incident. But before the trial Judge, he neither supported the prosecution story nor proved the FIR. He being declared as hostile and opportunity to cross-examine was afforded to the prosecution but nothing material comes out from his evidence which supports the prosecution version. Rather it transpires from the statement that he had not witnessed the incident. As per his statement, he was sleeping in his house at the time of occurrence and the other eye witness Mannu Prasad, who is the real uncle of the deceased victim, had informed him about the incident. After being informed, he along with Mannu Prasad went to the spot. With regard to the lodging of the first information report, this witness has categorically stated that report after being scribed at the police station, it was not read over to him. He simply put his thumb impression without hearing and reading of contents therein. 25. Now, the question arises that the genesis of the prosecution which put the police agencies into motion i.e. the first information report itself comes under the cloud of suspicion and the first information report is not proved by tendering the legal evidence. It would be pertinent to mention that although first information report is not a substantive piece of evidence nevertheless it is an important and relevant piece of evidence. So, we find that there is substantial force with the argument of learned counsel for the accused-appellant with regard to the lodging of FIR. 26. Next point of contention as raised by the learned counsel for the accused-appellants is with regard to the presence of the eye witnesses being doubtful. We have perused the lower court record and the paper book and found that the prosecution has led three eye witnesses in this case in which PW-2 Smt. Ram Rati is the real mother of the deceased Dinna @ Ram Kumar, PW-3 Sundar is a complainant as well as an eye-witness and PW-4 Mannu is the real uncle of the deceased Dinna. The testimony of PW-4 Mannu has not corroborated the prosecution version in material particulars. He had specifically stated that when he reached to the place of occurrence, he saw the accused persons were absconding. The testimony of PW-4 Mannu has not corroborated the prosecution version in material particulars. He had specifically stated that when he reached to the place of occurrence, he saw the accused persons were absconding. He Further stated that he reached to the spot after hearing the noise of single gun shot and when he reached on the spot, deceased Dinna had already fallen down but he could not tell whether it was shot from the country made pistol or a gun. 27. In his cross-examination, he further stated that he is unable to state that whether Shamshuddin had fired from his gun or not. If his entire oral evidence is taken into consideration, we find that this witness has not fully supported the prosecution version in material particulars. So far as the involvement and complicity of the accused in crime is concerned, the third eye-witness PW-2 Ram Rati, mother of the deceased Dinna, stated that when her son Dinna was caught by nephew of Bhura Behna, she informed her devar Mannu Prasad, who along with her by raising alarm followed her son and witnessed that Shamshuddin opened fire shots from his gun and other co-accused Kallu made fire shots from his country made pistol which hits the mouth and eye of the deceased and her son fell down on the spot. Thereafter Shiv Prakash gave blow with a lathi and nephew of Bhura used his ballam. 28. As per their statements Sundar Chaukidar also witnessed the incident but as we have already observed that PW-3 Sundar and PW4 Mannu Prasad have not supported the prosecution version and they had denied the fact that they have seen the accused persons using their arms resulting the death of the deceased. So, we find that there is inconsistency in the statements of the fact witnesses which goes to shake the prosecution story. The conduct of the witness is found to be highly improbable because in the cross-examination, PW-2 Ram Rati, mother of the deceased, has admitted that none of the witnesses present on the spot tried to save her son because of the threat being made by the accused persons. The conduct of the witness is found to be highly improbable because in the cross-examination, PW-2 Ram Rati, mother of the deceased, has admitted that none of the witnesses present on the spot tried to save her son because of the threat being made by the accused persons. Further the name of the fourth accused, who is the nephew of Bhura, who brought the deceased Dinna to the spot before the accused persons, could not be traced during the investigation and the charge-sheet has only been submitted against the three named accused persons. Therefore after microscopic analysis of the ocular testimony of three eye witnesses, we find that FIR is not proved. Complainant Sundar Chaukidar has not supported the prosecution version. Lodging of FIR by him is under cloud of suspicion. PW-4 Mannu Prasad, who is the real uncle of the deceased, has not supported the prosecution version in material particulars. Further, there is inherent improbabilities between the statements of PW-2 Ram Rati and PW-4 Mannu Prasad as the incident alleged by the prosecution is of a day time. It is established from the statement of PW-2 that large number of people of the village assembled at the time of assault but none of them had tried to save the victim and also none of the independent witnesses came forward to support the prosecution. Even the name of the nephew of Bhura Behna, who caught hold of the victim and put before the accused persons who gave fatal blows on the body of the victim, is still being not disclosed. All these facts and circumstances goes to show that either the prosecution has not come forward with a clean hands or the witnesses are not telling the truth before the Court. 29. Next point of contention as raised by learned counsel for the accused-appellants relating to the ocular testimony vis-a-vis medical evidence before appreciating the evidence as produced by the prosecution, we would like to refer established legal proposition as held in 2008 (1) Crimes 111 (SC) Kapildeo Mandal and Others vs. State of Bihar wherein the Hon'ble Apex Court held that "in case of the inconsistency in evidence of witnesses and the trustworthy medical evidence, accused would be entitled to benefit of doubt." 30. We find from the lower Court record that there are four lacerated wounds and one abrasion and a single shot fire-arm injuries mentioned in the post-mortem report. The eye version account as stated by PW-2 Ram Rati, accused Shamshuddin and Kallu were armed with a gun and country made pistol respectively and both had caused fire shots on the victim. But medical evidence states that there is only one gun shot injury. Further PW-2 Ram Rati stated that one of the accused persons, whose name has not yet been disclosed, was armed with a Ballam. But ante-mortem injury does not support the eye version account as no injury of ballam is found as ante-mortem injury. Therefore use of weapon assigned to the accused persons really put a great suspicion on the presence and watching of the incident by the eye-witnesses. All the above stated inconsistencies inter se between the eye version account stated by the fact witnesses goes against the trustworthy medical evidence available on the record. 31. As we have already discussed above, out of the three eye-witnesses, PW-3 and PW-4 namely Sundar Chaukidar and Mannu Prasad had not supported the prosecution story as stated by PW-2 Ram Rati and as alleged in the FIR. It is settled legal position that the appellate Court has to arrive at an independent conclusion about the credibility of the evidence, as to re-appreciate the evidence to arrive at a just conclusion. On the touch stone of the above said legal proposition, we find that manner and style of incident as stated in the FIR and that emerging from the eye version account of PW-2 Ram Rati is contradictory as regards to the use of ballam and use of fire arm weapon. Ante-mortem injuries on the body of the deceased found to be caused by a single gun shot whereas as per evidence of PW-2 Ram Rati, accused Shamshuddin used his gun and Kallu used his country made pistol. The evidence of this witness states that both accused had fired on the deceased which itself casts a question mark with regard to the presence of this witness on the spot at the time of incident. Her statement neither corresponds with the medical evidence nor by other eye-witnesses, namely PW-3 Sundar Chaukidar and PW4 Mannu. 32. The evidence of this witness states that both accused had fired on the deceased which itself casts a question mark with regard to the presence of this witness on the spot at the time of incident. Her statement neither corresponds with the medical evidence nor by other eye-witnesses, namely PW-3 Sundar Chaukidar and PW4 Mannu. 32. So, we find substance in the argument of learned counsel for the accused-appellants that the ocular testimony totally belied by the medical evidence. 33. On the basis of aforesaid reasons, we are of the considered view that the impugned judgment of conviction and order of sentence is based on probabilities, surmises and conjectures. The appraisement of prosecution evidence by the trial Court is found to be against the weight of evidence. The lodging of FIR and reasonable doubts which grows out from the prosecution evidence had been over-looked by the trial Court. The charges levelled against the accused persons found to be not proved beyond reasonable doubts. We conclude that the sole testimony of PW-2 Ram Rati is found to be neither credible nor trustworthy nor believable. We, therefore, have no option but to set aside the impugned judgment. Appeal deserves to be allowed. Accordingly, this appeal is allowed. 34. Let a certified copy of the judgment and order along with lower court record be sent to the concerned Chief Judicial Magistrate for compliance.