Research › Search › Judgment

Allahabad High Court · body

2017 DIGILAW 1364 (ALL)

Mohd. Kalim Khan v. State of U. P.

2017-05-23

RAGHVENDRA KUMAR, S.S.CHAUHAN

body2017
JUDGMENT S.S. Chauhan, J. 1. Criminal Appeal No. 2873 of 1982 has been filed on behalf of appellants-Mohd. Kalim Khan and Mohd. Shamim Khan and Criminal Appeal No. 2982 of 1982 has been filed on behalf of appellant-Israr. Since both the criminal appeals have been filed against one and the same judgement, therefore, they are being decided by a common judgement. 2. Both the criminal appeals have been preferred by the appellants against the judgement and conviction dated 9.11.1982 passed by Second Additional District and Sessions Judge, Shahjahanpur in Sessions Trial No. 125 of 1981 convicting appellants-Israr, Mohd. Kalim Khan and Mohd. Shamim Khan and sentencing them to rigorous imprisonment for life under Section 302/34 IPC and one year’s rigorous imprisonment under Section 324/34. Both the sentences have been directed to run concurrently. At the time of pronouncing the judgement, appellant-Israr was in jail. 3. The prosecution case as disclosed in the FIR is that Bundan Khan, the informant, lodged an FIR with the allegation that he was resident of Talgaon of the same police station and a case was going on between him and Israr of Wazirpur and criminal case was also going on with Shamshul etc. resident of Talgaon, who happen to be ‘Nanihalwala’ of Israr. On account of the aforesaid enmity, Israr etc. wanted to take revenge from him and his brother-in-law Wasi Khan. On 2.1.1981 at 4: 30 PM, informant-Bundan Khan, deceased Wasi Khan along with Sallan son of Safayatullah, resident of the village of informant and and Mohd. Yar Kan son of Altaf Khan resident of Lohargawan and Babu Ali son of Altaf Ali resident of Nigohi were coming back from Shahjahanpur after meeting their Advocate in respect of their case by Bus No. USN 4034. At about 4: 30 PM, when they reached Sanda Khas trisection and the bus stopped to alight the passengers, all of sudden Israr holding rifle, Kaleem holding gun and their father Shameem Khan holding Lathi came near to the bus and threatened the passengers to come down. At about 4: 30 PM, when they reached Sanda Khas trisection and the bus stopped to alight the passengers, all of sudden Israr holding rifle, Kaleem holding gun and their father Shameem Khan holding Lathi came near to the bus and threatened the passengers to come down. On account of fire of the weapons, passengers started to run helter-skelter whereupon Israr exhorted Wasi Khan to come down so that he may decide tomorrow’s case today and as soon as Wasi Khan and others alighted from the bus and started running towards Sanda, Israr fired at Wasi Khan with rifle which hit the lateral left hip of Wasi Khan and when Wasi Khan in order to save his life ran towards the crowd, Israr fired one more shot, which hit Wasi Khan on the right side below the clavicle bone. After receiving the injuries, Wasi Khan fell down and passengers ran to save Wasi Khan. Kaleem and his father Shameem said whosoever would come forward would be killed and thereupon, Kaleem fired one more shot in the air. On account of the pressure of the informant and witnesses and the persons belonging to Sanda, Israr etc. ran away towards their village. When the informant and others went to Wasi Khan, they found Wasi Khan dead. One passenger Maiku has also received firearm injury, who was brought by the informant along with him to the police station at the time of lodging of the FIR leaving Sallan, Mohd. Yar Khan and Babu Ali near the dead body. This incident was witnessed by witnesses Sallan, Babu Ali, Mohd. Yar Khan and people of the bus. The aforesaid FIR was lodged on 2.1.1981 at 17.15 hours at Crime No. 1 of 1981. The distance of the police station from the place of occurrence is four and half kilometres. After lodging of the FIR, inquest was prepared and investigation followed. Dead body was sent for post-mortem and the injured was sent for medical examination. Statements of the witnesses under Section 161 Cr.P.C. were recorded by the Investigating Officer and after recording the statements under Section 161 Cr.P.C., charge sheet was filed under Sections 302/307/34 IPC. The case was committed to the Court of Session by the Chief Judicial Magistrate vide order dated 6.3.1981. The Court of Session framed charges under Sections 302/34 & 324/34 IPC against the three accused persons. The case was committed to the Court of Session by the Chief Judicial Magistrate vide order dated 6.3.1981. The Court of Session framed charges under Sections 302/34 & 324/34 IPC against the three accused persons. Evidence of the witnesses was recorded. The prosecution in order to prove the prosecution case has examined PW-1-Bundan Khan, who happens to be the complainant and eye witness, PW-2 Mhod. Yar Khan (maternal brother of the deceased), PW-3 Sallan Khan, resident of Talgaon and PW-4 Uma Shanker, conductor of the bus (neither cited as witness in the charge sheet nor mentioned in the FIR), PW-5 Head Constable Ram Gopal Pandey, who proved the chik report and G.D. entries, PW-6 Dr. P.K. Gupta, who conducted post-mortem of the deceased, PW-7 SHO Sri V.P. Singh, Investigating Officer, who filed the charge sheet, Constable Moti Ram, who took the body to the mortuary. Dr. P.N. Rastogi was examined by the court as CW-1, who had medically examined the injured eye witness Maiku (Maiku not produced during the course of trial); CW-2 Vijai Bahadur Saxena, Executive Officer, Bisalpur proved the entries made in the Nagar Palika record relating to the bus in question; DW-1 Kazi Sayed Masood Hasan proved the marriage; DW-2 Kazi Sayed Maqsood Ahmad proved the marriage entries in the register; DW-3 Kailash Chandra, record keeper of Chungi (octroi), produced the register; DW-4 Rajendra Prakash produced Chungi (octroi) receipt to prove the entry of the bus. The aforesaid witnesses proved the prosecution case and as a result of which the appellants have been convicted. 4. The trial court after recording the statements of the witnesses and after hearing counsel for the parties proceeded to convict the appellants under Sections 302/34 & 324/34 IPC. 5. Sri Vinay Saran, learned counsel for the appellants has assailed the order of conviction, inter alia, on the ground that mode and manner of the occurrence cannot be accepted as alleged by the prosecution on the basis of evidence on record. 6. 5. Sri Vinay Saran, learned counsel for the appellants has assailed the order of conviction, inter alia, on the ground that mode and manner of the occurrence cannot be accepted as alleged by the prosecution on the basis of evidence on record. 6. Learned counsel for the appellants submits that the time as alleged by the prosecution also cannot be accepted as digested food has been found in the stomach of the deceased and therefore, the occurrence had taken place in the dark hours as it has come in the evidence that the food was taken at around 12: 00 PM (noon), therefore, learned counsel submits that semi-digested food ought to have been found in the stomach. Learned counsel also submits that on the basis of description given by the prosecution, place of occurrence becomes highly doubtful. The alleged incident had not taken place at the arrival of the bus, but in fact the bus reached Bisalpur at 12: 30 PM whereas the incident is alleged to have taken place at 4: 30 PM. Evidence in this regard of the Octroi Clerk, Executive Officer and Octroi Munsi has been relied upon to contend that the bus in question on the said date and time was not at Sanda trisection. He further submits that the witnesses are resident of different places, therefore, there is least possibility of the witnesses being present on the spot and that is why a story was set up that the witnesses went to meet Advocate Narendra Kumar Saxena in respect of case of deceased, which was fixed on the next day, but the said Advocate was never produced in evidence and apart from it, the witnesses have also set up a story of marriage of the sister-in-law of PW-2 Mohd. Yar Khan, but evidence of DW-1 (Shahar Kazi) and DW-2 (Naib Kazi) belies the story of marriage and in fact the marriage had taken place in the year 1980 instead of 1981. When the application was moved for calling the witness on the said point, PW-2 Mohd. Yar Khan did not turn up even after issuance of process under Sections 82 & 83 Cr.P.C., which itself goes to indicate that false story was cooked up in respect of marriage just to show presence of the witnesses. When the application was moved for calling the witness on the said point, PW-2 Mohd. Yar Khan did not turn up even after issuance of process under Sections 82 & 83 Cr.P.C., which itself goes to indicate that false story was cooked up in respect of marriage just to show presence of the witnesses. The injured witness was not produced during the course of trial and it is also submitted that the injury sustained by the injured witness cannot come from one fire, which had hit the deceased and after passing through the deceased, hit the injured person. Injury is on the upper side of the left thigh and on the index finger on the upper side and lower side and all the three injuries are entry wound. Learned counsel submits that all the three injuries would not have been sustained from one fire as alleged by the prosecution, which had passed through the deceased and thereafter hit the injured. The witnesses were equally inimical to the accused persons, but it is strange to note that no injury had been caused to any of the witnesses, who were accompanying the deceased. Learned counsel submits that if the witnesses were equally inimical, then they would not have been spared and certainly an attempt would have been made to kill them. The witnesses have also failed to coincide with the topography of the place of occurrence and PW-1, PW-2 & PW-3 have given wrong direction of the fire and the position of the witnesses and position of the bus standing at the place of occurrence. PW-4 has denied the entire story and has given a different version of the incident and according to him, the entire fire has been made from the front and he has introduced the story of three fires whereas PW-1, PW-2 & PW-3 have introduced the story of two fires. Submission is that witnesses were not present on the spot and that is why they have not been able to give the correct position of the things shown in the correct direction as shown in the site plan. Submission is that witnesses were not present on the spot and that is why they have not been able to give the correct position of the things shown in the correct direction as shown in the site plan. Learned counsel has also submitted that the place of witnesses has not been mentioned in the site plan which itself goes to indicate that the prosecution story is doubtful and this argument gains strength from the fact that the witnesses have failed to tell the correct direction of the things present in the map. PW-4 has given a different version of the seat of injury. The medical evidence of injured Maiku does not tally and that is why he was not produced in the witness box though he was injured witness and most natural witness to prove the incident. The weapons, which are alleged to have been used in the incident, have not been recovered by the Investigating Officer and three metal pieces have been found in the injury of the deceased. These three metal pieces could not have been found in the injury of the deceased as the entire prosecution case is that the fire was made from the rifle and therefore, it is submitted that bullet ought to have been found. Learned counsel submits that injured Maiku received injury somewhere else and that is why he was not produced in evidence. Learned counsel has also submitted that the FIR is ante timed as there is no mention of crime number in Photo Lash, Challan Lash, Chitthi Mazroobi etc. Inquest report was not prepared on the spot and it was prepared in the police station and that is why the thumb impressions are from different ink. Submission is that as and when the witnesses reached the police station, they were asked to put their thumb impressions on the inquest report. It is also submitted that since the body was received too late that is why the FIR was not existing at the time when it is alleged to have been lodged. 7. Sri Anurag Mishra, learned AGA has denied the arguments of the learned counsel for the appellants and has submitted that enmity is proved from the evidence on record and therefore, there was strong motive to kill the deceased. 7. Sri Anurag Mishra, learned AGA has denied the arguments of the learned counsel for the appellants and has submitted that enmity is proved from the evidence on record and therefore, there was strong motive to kill the deceased. He has also submitted that statements of the witnesses have been relied upon and their evidences are required worth consideration and the same cannot be faulted in any manner in respect of the incident in question. He has also submitted that on account of the fact that the witnesses are not educated, therefore, there was some misunderstanding in respect of the directions shown in the map and therefore, the prosecution case cannot be thrown out on this ground. He has also submitted that the evidence adduced in respect of the bus is not reliable and that requires consideration by this Court and there was possibility that the bus would have entered from the other route i.e. bypass. Learned AGA has also submitted that if there is shortcoming in the investigation, that will not give benefit to the accused-appellants unless and until the appellants are able to prove that the incident becomes doubtful on account of faulty investigation. 8. We have heard the arguments advanced by learned counsel for the appellants as well as learned AGA for the State and gone through the record. 9. The first point, which has been the thrust of argument of the learned counsel for the appellants, is the mode and manner of incident and the time and place of the incident has been denied and it has been submitted that the initial case set up in the FIR was that as soon as the bus reached Sanda Khas trisection, the accused persons asked the passengers to alight and as soon as Wasi Khan (deceased) after coming down from the bus ran towards Sanda, Israr fired upon him with rifle. The said fire hit the deceased on the left hip from the back side. Further contention is that as soon as Wasi Khan (deceased) turned around towards the crowd to save his life another fire was made by Israr, which hit him right side below clavicle bone whereupon Wasi Khan fell down on the ground. 10. The said fire hit the deceased on the left hip from the back side. Further contention is that as soon as Wasi Khan (deceased) turned around towards the crowd to save his life another fire was made by Israr, which hit him right side below clavicle bone whereupon Wasi Khan fell down on the ground. 10. The aforesaid fact has been described by PW-1 by stating that Maiku came down from the bus, who was injured witness and thereafter Wasi Khan came down and after Wasi Khan, Informant Bundan Khan, Sallan and Mohd. Yar Khan came down. Babu also alighted along with them. Wasi Khan ran towards the South whereupon Israr fired upon him from the back side which hit the deceased on his left hip. Thereafter, he turned towards the West and thereupon second fire was made upon him. Learned counsel for the appellants has submitted that if the aforesaid statement of PW-1 is accepted, who happened to be the eye witness, then injury cannot be received by the deceased on the front of right chest above the clavicle bone as it has been specifically stated that as soon as he turned towards the West, second fire was made upon him. If upon turning to the West, second fire was made by Israr, then injury ought to have been received by him on the right side of serratus anterior rather than the injury being received from front side below clavicle bone. Learned counsel submits that the injury, which has been received from the front side, could not have been received at all in views of the statement of PW-1 followed by PW-2, who has stated that Wasi Khan (deceased) ran towards South after alighting from the bus. He has stated that all the passengers alighted from the bus and thereafter Wasi Khan was asked to come down by the accused persons and then Wasi Khan and Maiku ran towards South whereupon a fire was made upon them from back side. Wasi Khan turned around after being hit from the first fire, which hit him on the right side of the chest. In the cross-examination, it has been stated by PW-2 that the accused persons were standing 6-7 paces away South-West from the front window of the bus. Learned counsel submits that this position disclosed by the witness is altogether wrong as indicated in the map. In the cross-examination, it has been stated by PW-2 that the accused persons were standing 6-7 paces away South-West from the front window of the bus. Learned counsel submits that this position disclosed by the witness is altogether wrong as indicated in the map. In the map, the accused persons were shown to be standing towards the North-West side of the bus. He has further submitted that after alighting from the bus, he ran towards East side and he did not ran towards Sanda to which Wasi Khan (deceased) ran. The aforesaid statement also does not tally from the map. Position of the witnesses has not been indicated in the map. There was no question of running towards the Eastern side as on the Eastern side there is road. He also stated that Kharanja from the trisection goes towards the South and it does not go towards the West whereas the map position goes to indicate that Kharanja is running towards the West i.e. towards Sanda Khas. The aforesaid witness, therefore, has not been able to give the correct position of the spot and neither firing upon the deceased in the correct perspective and the injury being received by him as disclosed by the prosecution. 11. PW-3 Sallan, who happens to be the relative of the deceased, has given a different version. He has stated that Wasi Khan after coming down from the bus ran towards South-East whereas nothing is there in the record to indicate that Wasi Khan ran towards the South-East. The witness has further stated that he and his companion after alighting from the bus stood 10-15 paces on the Eastern side. He has further stated that when Wasi Khan ran then the fire was made upon him by Israr Khan and hit Wasi Khan and the same fire hit injured Maiku. The manner and mode in which the same fire hit deceased Wasi Khan and injured Maiku has not been explained by the witness. If the statement of this witness is taken to be correct, then the injury would not have been received by the deceased as alleged by the prosecution as it is stated that deceased Wasi Khan ran towards South-East whereas the map position shows that he ran towards the West. If the statement of this witness is taken to be correct, then the injury would not have been received by the deceased as alleged by the prosecution as it is stated that deceased Wasi Khan ran towards South-East whereas the map position shows that he ran towards the West. The witness has also stated in the cross-examination that Kharanja to Sanda is running towards North-South and it does not go towards East-West and this statement of the witness is totally wrong as Kharanja to Sanda is running East-West. He has further stated that the accused persons were standing on the South direction whereas the aforesaid statement of the witness is totally wrong as the accused persons were standing on the Northern side of the bus. The witness has stated that there is no mango tree between Kharanja and road and the tree is on the Eastern side. He has further clarified that the mango tree is standing on the Eastern side of the road. This fact is wholly wrong and the witness is not aware of the place of occurrence at all and that is why he has given all wrong directions and he has not been able to explain the correct position of the accused persons, correct position of Kharanja and correct position of the mango tree. The witness has also specifically stated that head of the deceased was on the Northern side whereas the site plan depicts that head of the deceased was of the Eastern side. PW-4, who happens to be the conductor of the bus, has given altogether a different version whose statement was recorded on 25.1.1981 on the date of filing of the charge sheet. He was not indicated as a witness in the charge sheet. He happens to be an independent witness in the case. Though in the examination-in-chief, he has stated that Wasi Khan after coming down from the bus ran towards South and he had hardly moved 10-5 paces whereupon second fire was made by Israr and the said fire hit on the right side of the armpit and the same fire hit the injured Maiku. Though in the examination-in-chief, he has stated that Wasi Khan after coming down from the bus ran towards South and he had hardly moved 10-5 paces whereupon second fire was made by Israr and the said fire hit on the right side of the armpit and the same fire hit the injured Maiku. The aforesaid statement of the witness goes to indicate that the same is at variance of the other witnesses i.e. PW-1, PW-2 & PW-3 and if taking this statement of PW-4 to be correct, then the injured could not have received injury from the same fire as other witnesses have stated that the first fire crossed the body and hit the injured Maiku. Further statement is that the deceased turned around whereupon the second fire was made. In the cross-examination, this witness has stated that as soon as Wasi Khan alighted from the bus and ran, he was fired upon by Israr Khan before he could enter the crowd. After he was hit by the first fire, hardly he could move 2-3 paces and he was hit by second fire. Whatever explanation has been given by the witness in the examination in chief goes against the statement made in the cross-examination. In the examination-in-chief, he has stated that first fire hit the deceased in the armpit and as soon as he turned a little bit, second fire was made, but the aforesaid statement has been changed in the cross-examination and a different version has been given and the position of injuries received by the deceased has also been changed from back side to right side as well as to the front side. If the statements of all the witnesses are taken into consideration, then it appears that they had not witnessed the incident and that is why the other witnesses have come out with a different version in regard to the manner of assault and their presence on the spot by not giving the correct position of the bus, Kharanja and position of the accused persons is doubtful. Therefore, it appears that all the witnesses were not present on the spot and they have not witnessed the occurrence. Had they witnessed the occurrence, then they would have come out with the correct and consistent version in respect of firing and receiving of injury. 12. Therefore, it appears that all the witnesses were not present on the spot and they have not witnessed the occurrence. Had they witnessed the occurrence, then they would have come out with the correct and consistent version in respect of firing and receiving of injury. 12. So far the firing is concerned, all the witnesses have stated that the deceased ran towards the South, but thereafter the deceased turned around. PW-1 has stated that the deceased ran towards South and as indicated above the injury could not have been received on the front side of the right chest. Other witnesses have given a different version and they have also not supported the place of accused persons in the map and the other related things present on the spot. The manner of assault and sustaining of injury by the deceased as challenged by the counsel for the appellants appears to be correct and the injuries sustained by the deceased in the manner alleged by the prosecution becomes doubtful and hence the prosecution has failed to prove its case beyond reasonable doubt. 13. Presence of the witnesses also becomes doubtful on account of the fact that they have not been able to give the correct version of the spot and rather they have given a version which does not tally with the spot. 14. Learned counsel for the appellants has also challenged time of incident and has submitted that the incident could not have taken place at 4: 30 PM as alleged by the prosecution as it was the month of January and the incident had taken place on 2nd January 1981 and the sun set on the said date was at 5: 20 PM. Faecal matter was found in the large intestine of the deceased and the witnesses have stated that the deceased had taken lunch at around 12: 00 PM, therefore, learned counsel submits that the incident could not have taken place as alleged by the prosecution at 4: 30 PM. The stomach content position showed digested food of 200 gm present. Small intestine contained faecal matter and large intestine also contained faecal matter. 15. Learned counsel for the appellants has submitted that the time of occurrence as indicated by the prosecution to be 4: 30 PM cannot be accepted on the basis of the evidence which has come on record. The stomach content position showed digested food of 200 gm present. Small intestine contained faecal matter and large intestine also contained faecal matter. 15. Learned counsel for the appellants has submitted that the time of occurrence as indicated by the prosecution to be 4: 30 PM cannot be accepted on the basis of the evidence which has come on record. Learned counsel submits that the witnesses have stated that they along with the deceased had taken lunch at about 12: 00 PM (noon) and therefore, digested food and faecal matter could not have been found in the large intestine and small intestine. Learned counsel has drawn the attention of the Court towards the statement of PW-1 Bundan Khan, who has stated that he had gone to attend the marriage of daughter of Noor Hasan, Mohalla - Jalal Nagar Dhaka Talab. Along with him, Wasi Khan, Sallan, Mohd. Yar and Babu Ali had come. Nikah took place in the morning. Name of bridegroom was Babu, who was resident of Tilhar. Bidai of Baraat took place at about 11: 00 AM. Thereafter, he stated that he went to Bahadurganj market and there he took lunch at about 12: 00 PM (noon). Thereafter, he went to court to meet his counsel Narendra Kumar Saxena as the case was fixed for 3rd January, 1981. Factum of taking lunch has been reiterated by PW-2 by stating that prior to one day of the incident, he went to Shahjahanpur at his father-in-law Noor Hasan’s House as his sister-in-law was to be married. Nikah took place at 9: 00 AM on the next day and thereafter, he went to Bahadurganj market and in Bahadurganj, he took lunch along with Wasi Khan, Kundan Khan, Sallan Khan and Babu Ali and from Bahadurganj, they went to court where Wasi Khan met his Advocate and from there, they returned. In the cross-examination, the witness has stated that he proceeded from his father-in-law’s house at about 10-11 AM; they reached hotel and there they took lunch. Before taking lunch, his companions made some purchasing in the market. He also purchased betel. So according to the statement of this witness also, time of taking lunch comes around 12: 00 PM. PW-3 Sallan has stated in his cross-examination that he along with other witnesses took lunch at 12-1 PM and thereafter, he went to meet Narendra Kumar Saxena, Advocate of Wasi Khan. 16. He also purchased betel. So according to the statement of this witness also, time of taking lunch comes around 12: 00 PM. PW-3 Sallan has stated in his cross-examination that he along with other witnesses took lunch at 12-1 PM and thereafter, he went to meet Narendra Kumar Saxena, Advocate of Wasi Khan. 16. If the lunch was taken at around 12: 00 PM (noon) and the incident had taken place at 4: 30 PM, then the incident as alleged to have taken place cannot be said to have taken place at 4: 30 PM as the stomach contents in the post-mortem report corroborated with the statement of PW-6 Dr. P.K. Gupta, who conducted the post-mortem examination, who has accepted in the cross-examination that the deceased must have been done to death between 6: 00 to 7: 00 PM on the said date. Digested food of about 200 gm was found in the stomach and faecal matter was present in the small intestine and large intestine. The Doctor has also admitted that the food must have been taken at least 6-7 hours prior to death. In any case, if the digested food has been found in the stomach and small and large intestines contained faecal matter, then certainly semi-digested food would have been found at 4: 30 PM. Digestion of food depends on various situations and what kind of food was taken by the deceased, but at least time of taking lunch as has come in evidence is around 12: 00 PM (noon) and if the lunch was taken at around 12: 00 PM, then at 4: 30 PM digested food and faecal matter would not have been possible and as such, the time of occurrence as alleged by the prosecution appears to be doubtful and the incident must have been taken in the dark hours according to the suggestion of Dr. P.K. Gupta, who has admitted the stomach contents and the time of death in the cross-examination. 17. In the case of State of Uttar Pradesh v. Ashok Kumar, AIR 1979 SC 874 , the doctor in the post-mortem examination found that the small intestines were distended with gas, liquid faeces was present in the end of the small intestines, the large intestines and the stomach were empty. The oral evidence showed that just before the occurrence, the deceased had taken tea and eaten two samosas. The oral evidence showed that just before the occurrence, the deceased had taken tea and eaten two samosas. It was held by the Apex Court that the prosecution case was belied by the post-mortem report. The accused were acquitted. 18. In the case of Ram Narain v. State of Punjab, AIR 1975 SC 1727 , in the post-mortem examination, the medical officer found undigested food in the stomach of the deceased. The medical officer opined that the deceased must have taken his food only five minutes before his death or at the most within half an hour of his death. But the prosecution witness stated that the deceased had taken his meal about an hour before the occurrence. According to the prosecution, the occurrence took place at about 6.30 pm. On these facts, the Apex Court held that there was conflict between the oral and the medical evidence and the deceased must have taken his food at about 8 pm which is the usual time when the villagers take their food. The prosecution theory that the occurrence took place at 6.30 pm was disbelieved and the accused were acquitted. 19. In the case of Babu v. State of Uttar Pradesh, AIR 1983 SC 308 , the medical officer found the stomach and bladder empty and presence of faecal matter in the large intestine of the deceased in the post-mortem examination. Oral evidence revealed that the deceased used to ease himself just after getting up from the bed. The Apex Court held that the death took place early in the morning before the deceased had evacuated as against the prosecution case of 9 am. The accused were acquitted. 20. In his 24th Addition of Medical Jurisprudence and Toxicology, Modi points out that in addition to the above mentioned cases, time of death can be ascertained to some extent from the contents of the stomach, bladder and the intestines. The rate of emptying of stomach varies in healthy persons. The emptying of stomach depends on the; consistency of food, motility of the stomach, osmotic pressure of the stomach contents, quantity of food in the duodenum, surroundings in which food is taken, emotional factors and residual variations. It varies in man from 2.5 to 6 hours. A meal containing carbohydrates generally leaves the stomach early and the one containing protein, later. It varies in man from 2.5 to 6 hours. A meal containing carbohydrates generally leaves the stomach early and the one containing protein, later. The fatty food delays the emptying time, while liquids leave the stomach immediately after ingestion. Sometimes, the emptying of the stomach remains in abeyance for a long time in states of profound shock and coma. Similarly, one can give an opinion that the death occurred some time after he had got up early if the large intestine was found empty of faecal matter. 21. Learned counsel for the appellants has also submitted that initially in the FIR no case relating to marriage of daughter of Noor Hasan was set up, but he submits that when the prosecution found that Narendra Kumar Saxena with whom it is alleged that witnesses along with deceased Wasi Khan went to discuss the case, which was fixed for 3rd January, 1981 was not ready to depose before the court regarding their meeting, then as a second resort to prove their presence at Shahjahanpur they set up a story of marriage of daughter of Noor Hasan that is an improved version and for that the witnesses PW-1, PW-2 & PW-3 have stated that they went to attend the marriage of daughter of Noor Hasan. PW-1, PW-2 & PW-3 have stated that they went to attend the marriage on 1st January, 1981. Learned counsel submits that factum of meeting with Advocate Narendra Kumar Saxena could not be proved by the prosecution as the prosecution could not produce Narendra Kumar Saxena, Advocate in support of its contention, therefore, the said primary stand taken in the FIR fails and neither the same can be believed that the deceased along with the witnesses went to meet the Advocate. In absence of proving the aforesaid fact as stated in the FIR, improved version was also sought to be proved by the witnesses by oral evidence. In contrast to the aforesaid evidence, the defence adduced two witnesses i.e. DW-1 Kazi Sayed Masood Hasan and DW-2 Kazi Sayed Maqsood Ahmad. DW-1 Kazi Sayed Masood Hasan appeared before the court along with Nikah register of Mohalla Jalal Nagar, City Shahjahanpur pertaining to the years 1975, 1980 & 1981 and he has stated that he is the custodian of those registers. In the cross-examination, he has stated that he gets these registers printed and he distributes to different Kazis. DW-1 Kazi Sayed Masood Hasan appeared before the court along with Nikah register of Mohalla Jalal Nagar, City Shahjahanpur pertaining to the years 1975, 1980 & 1981 and he has stated that he is the custodian of those registers. In the cross-examination, he has stated that he gets these registers printed and he distributes to different Kazis. After the registers are full, they are deposited with him. The register of 1980 was deposited with him on 8.3.1981 and 1980 and 1981 registers are composite. He has also stated that there were two types of registers printed in his office; one containing 50 pages and the other containing 100 pages and both the registers contain book number and serial number. DW-2 Kazi Sayed Maqsood Ahmad appeared before the court and he brought along with him registers of 1975, 1980 and 1981. He stated that these entries have been made in these registers by him. He was working as Naib Kazi in Area No. 1, Jalal Nagar, Shahjahanpur and there was no other Kazi appointed in this area and he was the person, who administered Nikah. He makes entry of Nikah in these registers. He has also stated that Dhaka Talab Nasrat Jayee is the name of one colony and there is no separate place known as Dhaka Talab colony. On 30.3.1975, he performed Nikah of Mohd. Yar Khan, son of Altaf Khan resident of Lohargawan, Thana & Pargana - Nigohi, Tehsil - Tilhar, District - Shahjahanpur with Musmaat Zareena Bano Begum daughter of Noor Hasan Khan Pathan resident of Shahjahanpur Mohalla Nasrat Jayee. The witnesses in the said Nikah were Habibullah Shah and Mohd. Razi Khan and their signatures are there on the register. Thumb impressions of Mohd. Yar Khan and Zareena Bano Begum are also there in the register. The said Nikah was performed at 11: 00 AM. The said register was exhibited as Ext. Kha-9. He endorsed the entry after verifying his signature and writing. He has further stated that on 18.5.1980, he performed Nikah of Babu Khan son of Hikmatullah Khan Tailoring by profession resident of Tilhar, Mohalla Katara Khas, District Sahjahanpur with Musmaat Shakeela Bano daughter of Noor Hasan resident of Shahjahanpur, Mohalla Nasrat Jayee Jalal Nagar at 2: 30 PM in the day. The witnesses of this Nikah are Riyasat Khan son of Akhtar Khan and Mohd. Taki Khan son of Inayat Khan. The witnesses of this Nikah are Riyasat Khan son of Akhtar Khan and Mohd. Taki Khan son of Inayat Khan. The aforesaid Nikah has been duly entered in the register and it contained the thumb impressions of Babu Khan and Shakeela Bano and these thumb impressions were put before him. Writing and entries made by him were verified and the said document was made exhibit as Ext. Kha-10. After going through the register of 1980-1981, he specifically stated that he did not perform Nikah on 1st January, 1981 of Babu Khan son of Hikmatullah Khan with any girl. He has stated that whatever Nikah he performed is duly entered in this register. He specifically denied in the cross-examination also that any Nikah of Babu Khan took place in the year 1981 in respect of Mohalla Dhaka Talab and neither there was any such entry. He also denied that Dhaka Talab was a different colony. He has also stated that Dhaka Talab was not in the jurisdiction of any other Kazi except himself. The aforesaid statements of DW-1 and DW-2 go to indicate that story set up by the witnesses that they went to attend the marriage and thereafter they came from the bus fails and it appears that there was compulsion on the part of the prosecution as the prosecution had initially disclosed its case that the witnesses went to Shahjahanpur to meet their Advocate Narendra Kumar Saxena and once they failed in proving the aforesaid fact, they improved their version with a different story in regard to marriage of daughter of Noor Hasan just to show their presence at Shahjahanpur so that they could establish that they were travelling along with the deceased in the bus on the fateful day and when they reached Sanda trisection, the bus was stopped by the accused persons and the deceased was killed. 22. It is to be noted that an application under Section 311 Cr.P.C. was moved for recalling PW-2 just to clarify the factum of marriage. A specific order was passed by the learned trial court indicating therein that defence will confine itself to the extent of asking the question about the factum of marriage. Learned counsel submits that summons were issued, but PW-2 did not turn up and thereafter non-bailable warrant was issued and even then he did not turn up. A specific order was passed by the learned trial court indicating therein that defence will confine itself to the extent of asking the question about the factum of marriage. Learned counsel submits that summons were issued, but PW-2 did not turn up and thereafter non-bailable warrant was issued and even then he did not turn up. Then proceedings under Sections 82 & 83 Cr.P.C. were drawn, but PW-2 did not turn up. The recall application was allowed on 26.5.1982. Learned counsel submits that the aforesaid conduct of PW-2 whose sister-in-law’s marriage was alleged to have taken place on 1st January, 1981 throws some doubt upon the prosecution case and the conduct of the eye witnesses itself goes to indicate that they wanted to prove the case by hook or crook and that is why PW-2 did not turn up to face the cross-questioning in the court when DW-1 and DW-2 had specifically proved that the marriage had not taken place as alleged by PW-2. Thus, neither the story of meeting the Advocate as set up in the FIR nor the improved version of marriage of daughter of Noor Hasan (sister-in-law of PW-2) the prosecution has been able to establish and therefore, presence of the witnesses at Shahjahanpur becomes wholly doubtful and if they were not present at Shahjahanpur, then how they could accompany the deceased up to Sanda trisection is also doubtful. 23. So far the journey by bus is concerned, learned counsel for the appellants has argued that on the said date the bus in question had crossed the barrier at 12: 00 PM of Bisalpur Nagar Palika and for that purpose C-2 Vijai Bahadur Saxena was summoned by the court, who appeared before the court and stated that he was the Executive Officer, Nagar Palika, Bisalpur, District Pilibhit. He was posted there from 1st August, 1980. He stated that he had received Radiogram Mashmula Misal and he had passed an order directing Octroi Clerk Kailash Chandra. The said order is in his writing and he had signed it. Rajendra Prakash was the Octroi Clerk on 2nd January, 1981 and Kailash Chandra was also there. He also stated that the Radiogram was not received in time on account of the fact that the related documents were in the custody of Kailash Chandra, therefore, Kailash Chandra appeared instead of Rajendra. 24. Rajendra Prakash was the Octroi Clerk on 2nd January, 1981 and Kailash Chandra was also there. He also stated that the Radiogram was not received in time on account of the fact that the related documents were in the custody of Kailash Chandra, therefore, Kailash Chandra appeared instead of Rajendra. 24. Kailash Chandra appeared as DW-3 before the court and he stated that he was the Record Keeper of Nagar Palika Bisalpur for the last ten years and all those trucks, buses etc. which were passing through Shahjahanpur and Bisalpur, their entries were being made in the octroi post receipt and whichever vehicle was entering Nagar Palika Bisalpur, name and number of the vehicle was entered in the said receipt. He also stated that he has brought octroi record of Nagar Palika Bisalpur, District Pilibhit from 6.12.1980 to 3.1.1981, then from 3.1.1981 to 29.1.1981 and these entries were being made by Octroi Clerk and as and when the said receipt book is full, the same is deposited with the Record Keeper. The said witness was recalled and again appeared before the court on 23.9.1982 and he stated that he has brought the receipt of entry wherein the number of trucks and buses and other vehicles is made and octroi was being charged on the basis of this receipt. The said receipt book was from 31.12.1980 to 21.1.1981. It was containing 100 pages. It contains four receipts on one page. The entry was made in the receipt in accordance with the rules. No bus or truck could enter the Nagar Palika without paying octroi. The witness showed Counterfoil No. 17 of the receipt book dated 2.1.1981 (page No. 481) and stated that according to this entry Bus No. USN 4034 entered Nagar Palika Bisalpur at 12: 30 PM. After going through the receipt book, he stated that the said bus never entered Nagar Palika Bisalpur again on 2.1.1981. The aforesaid entry has been made in the writing of Octroi Clerk Rajendra Prakash and he has signed it and he knows his signature and writing as he has seen him writing and signing. In the cross-examination, nothing could be extracted from the witness, but he specifically denied that there was any other route from which the bus could enter. The aforesaid entry has been made in the writing of Octroi Clerk Rajendra Prakash and he has signed it and he knows his signature and writing as he has seen him writing and signing. In the cross-examination, nothing could be extracted from the witness, but he specifically denied that there was any other route from which the bus could enter. He also stated that functioning of the octroi post was never affected and in case the person went to deposit the amount along with the receipt book to the Nagar Palika, some other Octroi Clerk used to do the duty. The defence thereafter produced DW-4 Rajendra Prakash, Octroi Clerk, who stated that he was posted in Bisalpur Nagar Palika on the post of Octroi Clerk for the last ten years. He further stated that he was posted as Octroi Clerk at the said octroi post from 1.12.1980 to 15.1.1981 and whichever bus or truck was coming from District Shahjahanpur, the said truck or bus could enter from this octroi post only and all the trucks or buses were required to pay octroi. Once they entered, receipt was given to the Driver of the amount. He stated that he has brought along with him Receipt No. 481 and in the said receipt, entry was made to the effect that Bus No. USN 4034 entered on 2.1.1981 at about 12: 30 PM and paid 25 paise as octroi fee. Receipt in that respect was there bearing Receipt No. 17/481, which was proved by him. He also specifically stated that on the said date, said vehicle never entered Nagar Palika Bisalpur again. In the cross-examination, he denied the suggestion that the bus could have entered from any other route. 25. The aforesaid evidence adduced by the defence as well as by the court witness CW-2 Vijai Bahadur Saxena to establish the fact that the bus in question on 2.1.1981 was never present at 4: 30 PM at Sanda trisection, but in fact the bus had already entered Nagar Palika Bisalpur at 12: 30 PM on the said date. The prosecution has not been able to deny or disprove the above fact by adducing any other cogent evidence to the contrary. The prosecution has not been able to deny or disprove the above fact by adducing any other cogent evidence to the contrary. Rajendra Prakash, Octroi Clerk, who had executed the receipt and with whom the octroi fee was deposited has proved from the receipt book that the bus had entered Nagar Palika Bisalpur on 2.1.1981 at 12: 30 PM. Thus, presence of the bus at the time of occurrence also becomes highly doubtful. 26. Learned counsel for the appellants has submitted that the prosecution has utterly failed in proving its case beyond reasonable doubt as injured Maiku was never produced before the trial court though statement of Maiku was recorded on 25.1.1981, on the date of filing of the charge sheet and he was mentioned as an injured witness in the FIR. The injured witness was made piece of evidence and injuries of injured witness were not tallying with the prosecution case, which was set up in the FIR and probably this was the reason of not producing injured Maiku as witness. Three wounds of entry have been found on Maiku; lacerated wound of 1 cm x 1/2 cm muscle deep on lateral side and 7 cm above the left thigh whereas the second wound was lacerated wound of 1 cm x 1/2 cm muscle deep on the left index finger on back at left phallengeal joint and the third wound was two lacerated wounds of 2 cm x 2 cm on palmer size of left index finger. So all the three injuries themselves go to indicate that the injuries as alleged to have been sustained by Maiku in the fire of rifle or as has come in the statements of the witnesses could not have been received by him from the shot of rifle. According to the statements of witnesses PW-1, PW-2 & PW-3, the first fire after entering the body of the deceased had crossed and hit Maiku as all the three injuries are having entry wounds. The fire, which was made according to the prosecution case, was made with rifle. If rifle was used, then injury ought to have been received by Maiku of bullet, but the injuries received by Maiku do not indicate that they are bullet injuries and if at all there was any injury, then there ought to have been one injury and there could not have been three wounds of entry. If rifle was used, then injury ought to have been received by Maiku of bullet, but the injuries received by Maiku do not indicate that they are bullet injuries and if at all there was any injury, then there ought to have been one injury and there could not have been three wounds of entry. This itself goes to indicate that the prosecution case is highly doubtful and the prosecution has not been able to prove its case beyond reasonable doubt. The manner of assault as indicated in the FIR and the statements of witnesses does not stand to test of scrutiny as contemplated under law. The reason for not producing injured Maiku before the court and recording his statement on 25.1.1981 on the date of filing of the charge sheet itself is indicative of the fact that Maiku had not received injuries in the incident as alleged by the prosecution. The map prepared by the Investigating Officer (PW-7) goes to indicate that that it was prepared on the pointing out of the informant Bundan Khan. In the map, position of witnesses has not been shown. If Bundan Khan had told the Investigating Officer about the spot position, then he would have certainly told him about the place of witnesses, but the place of witnesses in the map is not apparent and neither has been shown and probably this was done only with a view to overcome the discrepancy if any by the witnesses in telling the topography of the occurrence and which the prosecution has miserably failed. He has given no reason as to why he had not shown the position of witnesses in the map. Non-showing of the place of witnesses in the map itself goes to indicate that the witness as informant, at whose pointing out the map was prepared, was not able to tell the Investigating Officer position of the witnesses and other persons. 27. Learned counsel for the appellants has also submitted that the FIR was ante timed as Photo Lash, Challan Lash and Chitthi Mazroobi do not contain crime number. The Investigating Officer has given a reply to the same that he did not think it necessary to write the crime number. Initially when the FIR was lodged, it was lodged under Sections 302 & 307 IPC. The Investigating Officer has given a reply to the same that he did not think it necessary to write the crime number. Initially when the FIR was lodged, it was lodged under Sections 302 & 307 IPC. Learned counsel has also submitted that there is no entry of crime number and relevant sections in the letter which was sent along with the injured for medical examination and on that basis, it has been averred that the FIR was not existing till the time the injured was sent for medical examination. The only explanation given by the Investigating Officer in the cross-examination is that he did not deem it necessary to write the crime number on the letter (Chitthi Mazroobi) by means of which the injured was sent for medical examination, Photo Lash and Challan Lash. Learned counsel has submitted that the aforesaid fact of the Investigating Officer throws doubt upon the prosecution case as it was incumbent upon the Investigating Officer to have mentioned the crime number at least on the Photo Lash, Challan Lash and Chitthi Mazroobi and this was not done because of the fact that the FIR was not registered up till that time. 28. Learned counsel for the appellants has also tried to persuade the Court that Section 307 IPC was added later on and that is why it has been added below Section 302 IPC. He has submitted that if the FIR was lodged under Sections 302 & 307 IPC, then the same would have been in continuity rather than Section 307 IPC being endorsed below Section 302 IPC. 29. The aforesaid argument of the learned counsel for the appellants is not much convincing and therefore, we are not inclined to give due weightage to the aforesaid argument. It is the mode and method of writing of a particular person in a particular manner. It depends upon the understanding of the Investigating Officer and practice of the Investigating Officer to write sections in one way or the other, but we find from the record that there is consistent entry of Section 307 IPC and therefore, the aforesaid argument is rejected. 30. Learned counsel for the appellants had drawn the attention of the Court towards one of the important feature in regard to preparing the inquest report. 30. Learned counsel for the appellants had drawn the attention of the Court towards one of the important feature in regard to preparing the inquest report. He submits that if the inquest report was prepared on the spot, then at least the thumb impressions would have been in the same ink. Learned counsel submits that the inquest report is prepared in continuity and that is why if any ink was present at the relevant time when the inquest was being prepared, then the same ink would have been used in continuity while obtaining the thumb impressions of all the witnesses, but he states that it is astonishing to note that the inquest report in the present case shows three inks. He, therefore, submits that the inquest report was not prepared on the spot rather it was prepared in the police station and as and when the witnesses reached the police station, their thumb impressions were obtained. 31. We have perused the inquest report and we find that three different inks have been used on the inquest report. As to whether three different ink pads were present on the spot. It appears that two thumb impressions were taken on the spot regarding which thumb impressions were obtained in blue ink and rest three thumb impressions were obtained in the police station and that is why three different inks were used; one ink pad containing blue ink and the other ink pad containing black ink and the third is of ink of blue pen. Therefore, we find force in the argument of the learned counsel for the appellants that the inquest report was not prepared on the spot. 32. Learned counsel for the appellants has also submitted that the weapon was not recovered and if any incident had taken place by the accused persons, then rifle and gun, which were licensed weapons, would have easily been recovered, but the Investigating Officer had failed to recover any weapon and rather two empty cartridges, which were recovered from the spot, were never sent for ballistic examination. The answer given in the cross-examination to question by the Investigating Officer was that weapons were not recovered and that is why the empty cartridges were not sent for ballistic examination. 33. The answer given in the cross-examination to question by the Investigating Officer was that weapons were not recovered and that is why the empty cartridges were not sent for ballistic examination. 33. Learned counsel for the appellants has also submitted that a specific case has been set up in the FIR to the effect that fire was made while the deceased was running and the second fire was made after two or three paces he had moved, but no trail of blood had been found on the spot, which falsify the prosecution case. If the fire was made in a running position and it hit the deceased on the left hip, then certainly trail of blood ought to have been found at least between the first fire and the second fire, which were made after he turned towards the West, therefore, the counsel has doubted the prosecution case in absence of trail of blood found on the spot. In this regard, the Apex Court in the case of State of Rajasthan v. Daud Khan, (2016) 1 SCC (Cri) 793, held as under: - “39. Learned counsel for Daud Khan referred to an odd circumstance, which is that Nand Singh managed to cover on foot a distance of about 70 (seventy) feet after being shot in the chest. Throughout this distance, there was no blood trail, nor was any blood spilt at the place of occurrence. In Meharaj Singh v. State of U.P., (1994) 5 SCC 188 , the absence of blood at the place of occurrence or any blood trail from the place of occurrence to the place where the corpse was found led this Court (among other things) to doubt the prosecution story.” 34. In Meharaj Singh v. State of U.P., (1994) 5 SCC 188 , the absence of blood at the place of occurrence or any blood trail from the place of occurrence to the place where the corpse was found led this Court (among other things) to doubt the prosecution story.” 34. One of the most astonishing fact, which has been brought to the notice of the Court, is that the dead body was found at a distance of 25 paces from the road, but in the entire evidence, which has come on record, none of the witnesses could explain as to how the body was found at a distance of 25 paces from the road whereas a specific case has been set up that the deceased ran towards the South and when fire was made, he was ten paces away from the accused persons and after the first fire was made, he turned towards the West 2-3 paces and the second fire was made and specific statements have been made by all the witnesses that the deceased immediately fell down. If that was the position, then he could not have reached the place where the dead body was shown to be lying i.e. 25 paces away from the road. PW-1 has also given the position of the accused persons on the South West direction whereas they were standing on the North West direction. This also shows that the witnesses were not present on the spot and neither they had witnessed the incident. Enmity between the parties has been admitted by PW-1 and it has been stated that Israr had lodged an FIR against Wasi Khan, informant and four other persons and the said case was going on. In the said case, the date was fixed as 3rd January, 1981. Nanihal of Israr Khan is in Talgaon and the maternal grandfather of Israr Khan is Riyazul Hasan and his brother’s name is Shamshul Hasan. Shamshul Hasan and Riyazul Hasan were fighting case against deceased Wasi Khan. The said case was also under Section 324 IPC. Wasi Khan had assaulted Shamshul Hasan in this case. Deceased Wasi Khan was doing pairvi of both the cases. On account of the aforesaid fact, they were having enmity with the deceased and the appellants proceeded to kill the deceased on the fateful day. The said case was also under Section 324 IPC. Wasi Khan had assaulted Shamshul Hasan in this case. Deceased Wasi Khan was doing pairvi of both the cases. On account of the aforesaid fact, they were having enmity with the deceased and the appellants proceeded to kill the deceased on the fateful day. In both the cases, assault made by Wasi Khan has been indicated by PW-1 as source of enmity. If complainant (PW-1), deceased Wasi Khan and their relatives were the accused persons in the FIR lodged by appellant-Israr, then there was no occasion for the appellants to kill Wasi Khan only. Moreover, both the criminal cases were lodged against deceased Wasi Khan and there was every hope to get Wasi Khan convicted under Section 324 IPC or in the other criminal case in which appellant-Israr was assaulted by deceased Wasi Khan and informant (PW-1), therefore, there was no occasion for the appellants to kill the deceased Wasi Khan. Therefore, enmity which has been shown the main motive for committing crime goes against the prosecution. It is not that the accused appellants were going to be convicted, rather on the converse side the deceased and others were going to be convicted in the cases which were going on. Suggestion has been given in the cross-examination that the incident had taken place in the dark hours and nobody had witnessed the occurrence has got some force in the existing facts and circumstances on record which go to indicate that the witnesses have not been able to state with consistency regarding the prosecution case and there is major contradictions. The Apex Court in the case of Mahavir Singh v. State of Madhya Pradesh, (2016) 10 SCC 220 , on the question of contradictions, inconsistencies and exaggerations or embellishments has held as under “22. The position of law in cases where there is a contradiction between medical evidence and ocular evidence can be crystallized to the effect that though the ocular testimony of a witness has greater evidentiary value vis-à-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. The position of law in cases where there is a contradiction between medical evidence and ocular evidence can be crystallized to the effect that though the ocular testimony of a witness has greater evidentiary value vis-à-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved (See : Abdul Sayeed v. State of M.P., (2010) 10 SCC 259 ). 23. In view of contradictory statements by the prosecution witnesses coupled with the unmatched medical evidence, delay in recording of statements of witnesses by the I.O., non-availability of proper site plan and in the absence of authenticated ballistic expert report that the bullet had been fired with the seized gun of the appellant, the Trial Court had to decide the case against the prosecution and discharge the appellant from the charges. The High Court, upon carrying the exercise of reappreciation of evidence, formed the view that the reasons for delay in recording the statements of witnesses have been properly explained; that as soon as the bullet struck on the abdomen of the deceased, he immediately fell down from the platform. It further observed that though the name of Shanti Devi (PW 8) was not mentioned in the FIR, there is positive evidence on record to establish her presence at the time of incident along with other eyewitnesses and this fact has been established by their corroborative statements and there is no reason to disbelieve their statements. Here it is worthwhile to mention that both the Courts below formed a common opinion that the prosecution has failed to prove the charges under Sections 148 and 302/149 IPC against the co-accused and discharged them from those charges. The disagreement between the Trial Court and the High Court is only in respect of the charge under Section 302 IPC against the appellant. 24. It is the duty of the Apex Court to separate chaff from the husk and to dredge the truth from the pandemonium of Statements. The disagreement between the Trial Court and the High Court is only in respect of the charge under Section 302 IPC against the appellant. 24. It is the duty of the Apex Court to separate chaff from the husk and to dredge the truth from the pandemonium of Statements. It is but natural for human beings to state variant statements due to time gap but if such statements go to defeat the core of the prosecution then such contradictions are material and the Court has to be mindful of such statements [See : Tahsildhar Singh v. State of UP, AIR 1959 SC 1012 ; Pudhu Raja v. State, (2012) 11 SCC 196 ; State of UP v. Naresh, (2011) 4 SCC 324 ]. The case in hand is a fit case, wherein there are material exaggerations and contradictions, which inevitably raises doubt which is reasonable in normal circumstances and keeping in view the substratum of the prosecution case, we cannot infer beyond reasonable doubt that the appellant caused the death of the deceased. 26. Here in the instant case, no doubt, an innocent man has lost his life at the hands of another man, and looking at the way in which the investigation was handled, we are sure to observe that it was carried out in a lackluster manner. The approach of the Investigating Officer in recording the statements of witnesses, collecting the evidence and preparation of site map has remained unmindful. The Investigating Officer, dealing with a murder case, is expected to be diligent, truthful and fair in his approach and his performance should always be in conformity with the police manual and a default or breach of duty may prove fatal to the prosecution’s case. We may hasten to add that in the present case the investigation was carried out with unconcerned and uninspiring performance. There was no firm and sincere effort with the needed zeal and spirit to bring home the guilt of the accused. We feel that there are no compelling and substantial reasons for the High Court to interfere with the order of acquittal when the prosecution has miserably failed to establish the guilt of the accused. Added to this, the accused has already undergone nine years’ of imprisonment and we feel that it is a fit case inviting interference by this Court.” 35. Added to this, the accused has already undergone nine years’ of imprisonment and we feel that it is a fit case inviting interference by this Court.” 35. The injuries sustained by the deceased, which were caused by rifle fire, also do not tally with the nature of injuries sustained by the deceased as three metal zigzag pieces were found on the upper side of the left hip. From the rifle, these types of metal pieces would not have been found and therefore, the manner of assault on that score becomes doubtful as rifle injury would be of different nature, which is caused by a bullet, so bullet ought to have been recovered rather than three zigzag metal pieces. This also throws doubt upon the prosecution case as the prosecution has not been able to explain and neither the Doctor has been able to explain as to how and in what manner the said metal pieces could have been recovered. 36. Considering the evidence on record and nature of evidence adduced, the prosecution has not been able to prove its case beyond reasonable doubt and hence the appellants are liable to be given benefit of doubt. 37. The informant and the witnesses were having equal enmity with the accused-appellants, but none of the witnesses or the informant have received any injury and neither they have been attacked upon though the informant and others were accused in the case in which appellant-Israr Khan was assaulted. This also throws doubt upon the presence of the witnesses as they would not have been spared by the accused-appellants with whom they were having equal enmity like the deceased. 38. Appellant-Mohd. Kalim Khan, who was holding gun, is alleged to have made fire in the air whereas appellant-Mohd. Shamim Khan was having Lathi and no use of Lathi was made at any point of time, which itself goes to indicate that these two appellants were falsely implicated just to give colour to the incident. 39. The appellants are given benefit of doubt and they are liable to be acquitted from the charges levelled against them under Sections 302/34 & 324/34 IPC. 40. Both the criminal appeals are accordingly allowed and the judgement and conviction dated 9.11.1982 passed by the Second Additional District and Sessions Judge, Shahjahanpur in Sessions Trial No. 125 of 1981 is hereby set aside. 40. Both the criminal appeals are accordingly allowed and the judgement and conviction dated 9.11.1982 passed by the Second Additional District and Sessions Judge, Shahjahanpur in Sessions Trial No. 125 of 1981 is hereby set aside. The appellants are given benefit of doubt and they are acquitted from all the charges levelled against them. Their bail bonds are hereby cancelled and sureties are discharged from the liabilities. Let the record of the case be sent back to the Sessions Court, District Shahjahanpur immediately.