Arvind Kumar Mishra-I, J. 1. By way of instant criminal appeal, challenge has been made to the validity and sustainability of the judgment and order of conviction dated 07.07.1995 passed by the Additional Sessions Judge, Lalitpur, in Sessions Trial No.93 of 1993 (State Vs. Ajuddi and others), arising out of case crime no.58 of 1991, under Sections 302/34 and 307/34 IPC, Police Station-Banpur , District-Lalitpur , whereby both the accused appellants have been sentenced to life imprisonment and 10 years R.I., respectively. Both the sentences shall run concurrently. 2. Heard Sri G.S. Chaturvedi, Advocate assisted by Sri Prashant Vyas, Sri Somya Chaturvedi and Sri A.N. Mishra, learned counsels for the appellants, Sri A.N. Mulla, Sri Saghir Ahmad, Kumari Meena, learned AGAs and Smt. Manju Thakur and Sri Ravindra Manipal, brief holder for the State, Sri Viren Singh holding brief of Sri Premendra Singh, learned counsel for the complainant and perused the record of this appeal. 3. Facts engraved in the first information report reflects that informant-Devi Singh s/o Munna Raja Thakur, R/o village-Sunwaha , Police Station Banpur, District Lalitpur lodged written report at Police Station-Banpur on 15.06.1991 at 10.10 P.M. against eight persons including the present appellants for causing death of Munna Raja with averments to the effect that the first informant Devi Singh s/o Munna Raja (deceased) along with Ram Raja, Munna Raja both sons of Pancham Singh Thakur and Raj Pal Singh s/o Hardeo Singh Thakur had gone to attend marriage party at the house of Narayan Singh Pradhan of Police Station-Banpur and and after attending the marriage party, they were returning back on their respective bicycles to their village-Sunwaha around 8 P.M. on 15.6.1991. When they reached at Tilya Nala near a Mahua tree, then Hari Ram s/o Rattu Lodhi and Hoshiyar Singh s/o Janki Prasad Lodhi (appellants) exhorted to kill, and in the meanwhile, fired from country-made gun on Munna Raja and Raj Pal and Jujhar Singh s/o Hardas Lodhi, Jalim s/o Parichat Lodhi, Ajuddi s/o Magan Lodhi, Jaggan son Janki Prasad Lodhi, Rajendra Singh s/o Raghuvir Singh Thakur and Bachhu s/o Jai Singh Lodhi, bearing axe and farsa, began to assault Munna Raja and Raj Pal. Informant Devi Singh and Ram Raja watched the incident from a distance of 100 meters in torchlight and they identified the assailants. Informant/complainant along with others raised alarm, whereupon, the assailants ensured their escape towards Tapran Mazra. Informant Devi Singh and Ram Raja watched the incident from a distance of 100 meters in torchlight and they identified the assailants. Informant/complainant along with others raised alarm, whereupon, the assailants ensured their escape towards Tapran Mazra. Today (on the day of the incident), Tehsildar had come in the village for measuring lease (patta) land, due to which Hari Ram and other accused had grudge against the victim. Request was made for lodging the report and taking appropriate action. This written report is Exhibit Ka-1. 4. Contents of written report were taken down in the concerned Check FIR at Case Crime No.58 of 1991, under Sections 147, 148, 149, 302, 307, 323, 504, 506 IPC at Police Station-Banpur on 15.06.1991 at 10.10 P.M. Check FIR is Exhibit Ka-4. On the basis of entry made in the Check FIR, a case was registered against the appellants and other co accused in the concerned General Diary of aforesaid date and time at Case Crime No.58 of 1991. Copy of the concerned General Diary is Exhibit Ka-5. 5. We gather from record that after lodging of the first information report, Dr. M.K. Joshi P.W.3 medically examined Raj Pal-the injured- at PHC Mehrauni at 11.30 P.M. on 15.06.1991 and noted following injuries on his person:- Injuries:- (1) Firearm abrasion 0.5 cm x 0.5 cm on right side of 3.00 cm below angle of right mandible. (2) Firearm lacerated wound of entry 0.5 cm x 1. 0.5 cm & depth kept under observation on left side of chest 3.00 cm outer to midline chest & 2. 4.00 cm inner to left nipple. (3) Firearm lacerated wound of entry on right side of coastal margins 3.00 cm on outer to midline abdomen & 4.00 cm below epigastrium. Depth kept under observation. (4) Three firearm lacerated wound of entry each 0.5 cm x 0.5 cm & abdominal cavity deep of just below coastal margin (a) 4.00 cm outer to midline abdomen (b) 2.00 cm outer to wound (a); (c) 1.00 cm outer & below wound (b) on right side of abdomen. (5) Two firearm lacerated wounds of entry just outer to midline abdomen 0.5 cm apart to each other and 3 cm below the umbilical cord (a) 0.5 cm x 0.5 cm x abdominal cavity deep (b) 0.3 cm x 0.2 cm x abdominal cavity deep. (5) Two firearm lacerated wounds of entry just outer to midline abdomen 0.5 cm apart to each other and 3 cm below the umbilical cord (a) 0.5 cm x 0.5 cm x abdominal cavity deep (b) 0.3 cm x 0.2 cm x abdominal cavity deep. (6) Six firearm lacerated wound of entry on dorsum of penis of prone to base of penis 0.5 cm x 0.5 cm x muscle deep. (7) Multiple firearm lacerated wounds of entry on both side of scrotum each 0.5 cm x 0.5 cm x muscle deep. (8) Three firearm lacerated wound of entry each 0.5 cm x 0.5 cm x abdominal cavity deep on lower part of right side of abdomen 3.5 cm above and outer to base of penis. (9) Firearm lacerated wound of entry 0.5 cm x 0.5 cm on left side of abdomen 1.5 cm above base of penis. (10) Multiple firearm lacerated wounds of entry 36.00 cm x 5.00 cm from lower part of right upper arm to wrist joint. (11) Firearm lacerated wound 2.5 cm x 0.5 cm on front aspect of right upper arm 4.00 cm below anterior border of axilla. (12) Multiple firearm lacerated wounds of entry in an area of 16.00 cm x 6.5 cm into muscle deep on inner & back aspect of left thigh 16.00 cm above left knee joint each 0.5 cm x 0.5 cm. (13) Multiple lacerated firearm wounds of entry 30.00 cm x 7.5 cm area on front & inner aspect of right thigh from right knee joint. This injury report is Exhibit Ka-2. 6. We also gather that after entrustment of the investigation to the Investigating Officer S.I. Shiv Shankar Shukla P.W.7, he arrived at the place of incident around 2.00 A.M. on 16.06.1991 and stayed over there and in the morning at 7.00 A.M. held inquest of deceased-Munna Raja. The inquest was completed at 08.30 P.M. It is Exhibit Ka-6. In the opinion of inquest witnesses and the Investigating Officer, it was thought proper to send the body for postmortem examination so as to ascertain real cause of death. Therefore, relevant papers were prepared, which papers are Exhibit Ka-7 to Ka-11 and the dead body was sent to mortuary, Lalitpur, where Dr. Ramesh Chandra P.W.4 conducted autopsy on the cadaver of deceased -Munna Raja- at 6.00 P.M. on 16.06.1991. Therefore, relevant papers were prepared, which papers are Exhibit Ka-7 to Ka-11 and the dead body was sent to mortuary, Lalitpur, where Dr. Ramesh Chandra P.W.4 conducted autopsy on the cadaver of deceased -Munna Raja- at 6.00 P.M. on 16.06.1991. He noted following antemortem injuries on his body:- Antemortem Injuries :- (1) Gunshot wound of entry on face in the area of 8cm x 6 cm, margins inverted charring & blackening present, clotted blood present, upper jaw missing, palate missing, scorching present. (2) Gunshot wound of exit in the occipital parietal region in an area of 21cm x 15cm, margins everted no blackening, no charring, underlying bones fractured and part of skull bones missing, wadding material recovered from posterior cranial fossa brain matter coming out. (3) Multiple gunshot wounds of entry in the left side abdomen- in the left iliac fossa extending upto back and lower region and on left buttock and thigh in an area of 27 cm x 22 cm, blackening, charring, tattooing and scorching of tissue present, clotted blood present, margins inverted, size of the wound 0.3 cm x 0.3 cm x muscle and cavity deep, abraded and contused collar present. (4) Multiple gunshot wounds of entry on dorsum of left hand in the area of 11 cm x 5cm, extending upto fingers, margins inverted, blackening and charring present, clotted blood present, size of the wound 0.3 cm x 0.3cm, wounds are bone deep and circular. (5) Two gunshot wounds of entry on medial aspect of left forearm 10 cm below elbow joint, clotted blood present. (6) An abraded collor on left forearm on medial side in the area of 4 cm x 0.5 cm in the middle. (7) Abraded collar on left forearm on medial size extending upto wrist joint 6cm x 0.5cm. (8) Tattooing on the upper surface of penis in the area of 2 cm x 0.5 cm. Note: (i) Multiple tears on shirt on front and lower side in the area of 20cm x 15 cm on left part and on back part on left side multiple tear in 18cm x 15cm area. (ii) Multiple tears on left sleeve of shirt in lower part in an area of 23cm x 7 cm. (iii) Multiple tears on Dhoti in an area of 22cm x 16cm on left side. (ii) Multiple tears on left sleeve of shirt in lower part in an area of 23cm x 7 cm. (iii) Multiple tears on Dhoti in an area of 22cm x 16cm on left side. (iv) Multiple tears on Baniyan on left side on front and back part in an are of 23 cm x 10 cm in the lower part. 7. In the opinion of doctor, cause of death was stated to be haemorrhage & shock as a result of antemortem gunshot injuries. Dr. witness-Ramesh Chandra P.W.4-has proved postmortem report as Exhibit Ka-3. 8. Investigation of this case was underway. The Investigating Officer also recorded statement of various persons and prepared site plan of the case of incident, which is Exhibit Ka-12. He also prepared various memos. Memo of simple and blood stained clay-roll from the spot is Exhibit Ka-13. He also prepared memo of empty cartridges, which is Exhibit Ka14. Memo of shoes of deceased is Exhibit Ka-15. He also prepared memo of bicycle, which is Exhibit Ka-16. During the course of investigation, he arrested the accused and recorded their statement and at last after completing the investigation, filed charge-sheet against the accused-appellants on 15.07.1991, which is Exhibit Ka-18. 9. Proceeding of the case was committed to the court of Sessions. As a sequel to that, this case was made over for trial and disposal to the court of Additional Sessions Judge, Lalitpur. Both the appellants were heard on point of charge and the trial court was prima facie satisfied with the case against the accused-appellants. Therefore, it framed charges against the accused-appellants under Sections 148, 302/149 and 307/149 IPC. Charges were read over and explained to the accused, who abjured charges and opted for trial. 10. The prosecution in order to prove guilt of the accused examined as many as seven prosecution witnesses. Brief reference of the same is Ut infra:- Devi Singh P.W.1 is the informant and he has lodged the first information report, Exhibit Ka-1. Ram Raja P.W.2 is an eye-witness of the occurrence. Dr. M. K. Joshi P.W.3 is medically examined Raj Pal at 11.30 P.M. on 15.06.1991 and has proved medical report Exhibit Ka-2. Dr. Ramesh Chandra P.W.4 has conducted autopsy on the dead body of deceased-Munna Raja at 6.00 P.M. on 16.06.1991 and has proved postmortem examination report Exhibit Ka-3. Ram Raja P.W.2 is an eye-witness of the occurrence. Dr. M. K. Joshi P.W.3 is medically examined Raj Pal at 11.30 P.M. on 15.06.1991 and has proved medical report Exhibit Ka-2. Dr. Ramesh Chandra P.W.4 has conducted autopsy on the dead body of deceased-Munna Raja at 6.00 P.M. on 16.06.1991 and has proved postmortem examination report Exhibit Ka-3. Constable Siya Ram P.W.5 has proved relevant Check FIR and GD entry Exhibit Ka-4 and Ka-5, respectively. Chand Kha P.W.6 (Chowkidar) has tendered his testimony by presenting an affidavit. S.I. Shiv Shanker Shukla P.W.7 is the Investigating Officer of this case. He has proved the entire investigation including preparation of inquest report, site plan, certain memos and arrested the accused and has proved filing of charge sheet, Exhibit Ka-18. 11. It is reflected from the record that the trial court also summoned Raj Pal as CW-1. He is injured witness of the incident. The trial court has examined him on point of occurrence and injury being caused to him. 12. Except as above, no other testimony was adduced, therefore, evidence for the prosecution was closed and statement of the accused was recorded under Section 313 Cr.P.C., wherein, they claimed to have falsely implicated in this case due to enmity of village partibandi. 13. The defence has not led any evidence whatsoever. 14. Learned trial Judge after considering the case on its merit returned aforesaid finding of conviction and sentenced to life imprisonment and 10 years R.I. both the accused-appellants under Sections 302/34 and 307/34 IPC, respectively. 15. Consequently, this appeal. 16. It has been vehemently contended on behalf of the appellants that the incident in fact took place in the darkness of night in forest at deserted place and no one saw the occurrence. Devi Singh P.W.1 and Ram Raja P.W.2 are the chance witnesses. They were never present on the spot at the time of occurrence. Their presence on the spot becomes improbable and doubtful. Their testimony is not clinching but contradictory to each other in material particulars. The source of light has been described to be torchlight, but the incident was allegedly witnessed from a distance of 100 meters, which renders their testimony highly doubtful. It is admitted fact that Raj Pal, who accompanied the deceased-Munna Raja at the time of occurrence, also sustained gunshot wounds, has not seen the real assailants. The source of light has been described to be torchlight, but the incident was allegedly witnessed from a distance of 100 meters, which renders their testimony highly doubtful. It is admitted fact that Raj Pal, who accompanied the deceased-Munna Raja at the time of occurrence, also sustained gunshot wounds, has not seen the real assailants. It is obvious that Devi Singh P.W.1 and Ram Raja P.W.2 could never have witnessed the incident from such a distance say 100 meters. The Investigating Officers also did not act in fair manner and arbitrarily filed the charge-sheet . The testimony of eye witnesses of fact is full of improvement and on the face tutored. Appellants have been roped in, in this case on ground of political enmity and village 'partibandi' by the Investigating Officer in collusion with the informant. 17. Per contra, reply has been given by the learned AGA to the ambit that the case of the prosecution is consistently proved not by the testimony of the two eyewitnesses of fact but also by the circumstances of the case, which overwhelmingly establishes guilt of the appellants. 18. Merely because injured witness-Raj Pal was examined as C.W.1 and he did not see the assailants, would not by itself falsify fact of involvement of the accused in the incident. He himself says that he cannot say anything, if the witnesses were following the deceased at some distance behind him. Entire testimony of Raj Pal C.W.1 indicates that he is relative of one co-accused, namely, Rajendra Singh and in order to save Rajendra Singh, he deliberately did not name the assailants, which, under circumstances, is quite understandable. The wholesome testimony of prosecution witnesses cannot be brushed aside and it generates confidence because it consistently falls in line with the prosecution version. The trial Judge while considering merit of the case recorded specific finding of conviction giving specific reasons, which cannot be vitiated, merely because certain minor contradictions occurred in the testimony of witnesses of fact, who were present on the spot when the incident took place. This appeal lacks merit. 19. The trial Judge while considering merit of the case recorded specific finding of conviction giving specific reasons, which cannot be vitiated, merely because certain minor contradictions occurred in the testimony of witnesses of fact, who were present on the spot when the incident took place. This appeal lacks merit. 19. We have also considered the rival submissions and also took note of claim of the appellants and in the light of above; the moot point that arises for consideration of this appeal is confined to fact whether the prosecution was able to prove its case beyond reasonable doubt against the accused or the accused-appellants are entitled to acquittal? 20. On the onset, we may take note of first information report and particularly the crux contents, which describe the incident in a manner that informant-Devi Singh along with Ram Raja, Munna Raja and Raj Pal had gone to attend some marriage party at the house of Narayan Singh Pradhan of Banpur within police Station-Banpur and after attending the marriage party, they were returning back to their village-Sunwaha around 8 P.M. on 15.6.1991. When they reached near Mahuwa tree at Tilya Nala, Hari Ram, Hoshiyar Singh exhorted other co-accused persons and fired with their country-made gun on Munna Raja and Raj Pal; and other co-accused persons Jujhar Singh, Jalim, Ajuddhi, Jagan, Rajendra Singh and Bachhu began to assault them with axe and 'farsa'. Informant-Devi Singh and Ram Raja witnessed the incident from 100 meters distance in the torchlight and identified the assailants and alarm was raised, the accused persons escaped from the place of occurrence towards Tapran Mazra, after killing Munna Raja and injuring Raj Pal. 21. On motive point, it has been described in the written report that today (on the day of occurrence) Tehsildar had come to the village for measurement of lease land, whereupon, Hari Ram and others developed animosity. This written report has been proved by Devi Singh P.W.1. The time of incident disclosed in the written report is around 8 P.M. and incident was witnessed in the torchlight by Devi Singh P.W.1 and Ram Raja P.W.2 and the injured witness was not examined as prosecution witness but was summoned by the court and was examined as C.W.1. This written report has been proved by Devi Singh P.W.1. The time of incident disclosed in the written report is around 8 P.M. and incident was witnessed in the torchlight by Devi Singh P.W.1 and Ram Raja P.W.2 and the injured witness was not examined as prosecution witness but was summoned by the court and was examined as C.W.1. Admittedly, his (Raj Pal C.W.1) presence on the spot cannot be doubted and his medical examination took place at PHC Mehrauni on 15.6.1991 at 11.30 P.M., wherein, as many as 13 firearm injuries of varrying measurements have been noted by Dr. M. K. Joshi P.W.3 and he has proved the medical examination report-Exhibit Ka-2. Therefore, we are now to cautiously scrutinize testimony of all the witnesses of fact and the injured witness-Raj Pal C.W.1- in order to assess and evaluate fact of involvement of the present appellants in the incident. 22. Before discussing testimony of the injured witness-Raj Pal C.W.1, it would be appropriate to scrutinize first testimony of the other two witnesses of fact- Devi Singh P.W.1 and Ram Raja P.W.2. Admittedly, the written report Exhibit Ka-1 describes time of incident around 8 P.M. on 15.6.1991, whereas, in the testimony of both the aforesaid witnesses-Devi Singh P.W.1 and Ram Raja P.W.2 this time of occurrence has been changed. Devi Singh P.W.1 categorically testifies in his examination-in chief that it was around 7-8 P.M. when they reached at the place of occurrence but there was visibility, whereas, Ram Raja P.W.2 has testified time of incident at 7 P.M. He, too, states that visibility persisted at that point of time. We have to arrive at conclusion about the proximate time of occurrence emanating from their testimony. Admittedly, written report describes 8 P.M. as the time of occurrence and a description follows that the incident was seen in the torchlight. Now, the testimony of-Devi Singh P.W.1 and Ram Raja P.W.2-puts it in a state that visibility at the time of occurrence was persisting, however, at this stage, we may also take note of fact that Raj Pal C.W.1-the injured witness has stated otherwise about the time of occurrence that the time of occurrence was around 8.30 P.M. and it was darkness. 23. 23. Obviously, the point of torchlight being used by the prosecution witnesses and particularly Devi Singh P.W.1 indicates that the visibility, if any, was not of such magnitude that a person can be identified in such visibility like the daylight. Admittedly, it was month of June and we can take judicial notice of fact that in the month of June, the sun sets around 7.00-7.15 P.M.; and at 8 P.M. complete darkness prevails. The point worth consideration is that the witnesses, though have varied slightly on the time of occurrence, have categorically stated that daylight (to the extent of visibility) was existing. But, if the incident took place around 8 P.M., it is hard to believe that daylight was existing. 24. Obviously, at that point of time, when it is around 8 P.M., darkness would prevail. Even use of torchlight, as testified by P.W.1 and P.W.2 also shows that identification of person was not possible without use of light. Thus, use of torchlight by the prosecution witnesses (P.W.1 and P.W.2) at the time of occurrence is indicative of fact that darkness had set-in and it was not possible to identify a person without using torchlight. If a plain wholesome reading of evidence of P.W.1 and P.W.2 is taken, then the general view of the situation would come to surface. However, testimony of Raj Pal C.W.1 puts the incident not before 8 P.M., if not at 8.30 P.M. 25. In this factual backdrop of timing of occurrence, now we proceed with the fact of occurrence, as witnessed by Devi Singh P.W.1 and Ram Raja P.W.2. A cumulative reading of testimony of both- Devi Singh P.W.1 and Ram Raja P.W.2 divulges that as many as eight assailants were said to have participated in the incident including the present appellants and it is admitted fact that the present appellants have been shown to have been possessing country-made gun, whereas, the other co accused/assailants were possessing axe and 'farsa' and admittedly these other co-accused at least assaulted Munna Raja the deceased-with axe and 'farsa'. Though, both the aforesaid witnesses-Devi Singh P.W.1 and Ram Raja P.W.2-have vacillated on the point of assault being caused to both-deceased Munna Raja and Raj Pal C.W.1, whereas, they have stated that assault was being caused by axe and 'farsa' only on Munna Raja. Though, both the aforesaid witnesses-Devi Singh P.W.1 and Ram Raja P.W.2-have vacillated on the point of assault being caused to both-deceased Munna Raja and Raj Pal C.W.1, whereas, they have stated that assault was being caused by axe and 'farsa' only on Munna Raja. Thus, testimony of both the eyewitnesses-Devi Singh P.W.1 and Ram Raja P.W.2-describes blows being caused to Munna Raja by axe and farsa, but in the postmortem examination report of deceased Munna Raja, no such injury being caused by use of axe and 'farsa' has been found on the body of the deceased. Dr. Ramesh Chandra P.W.4 has proved postmortem report, Exhibit Ka-3. In the very last line of his cross-examination on page-44 of the paper book, he has categorically stated that he did not find any injury on the body of the deceased caused by farsa, axe and lathi. Similarly, we may also take note of testimony of Dr. M.K. Joshi P.W.3, who has medically examined the injured-Raj Pal C.W.1 at 11.30 P.M. at PHC Mehrauni on 15.6.1991. He has noted 13 gunshot wounds during examination with opinion that all the 13 injuries found on the person of the injured were fresh and caused by some firearm. 26. The point that crops up and engages our attention at this stage relates to fact that six more persons other than the present appellants were armed with 'farsa' and axe and as per eye account testimony, given by P.W.1 and P.W.2, 'farsa' and axe blows had been inflicted on deceased Munna Raja, but not a single injury corroborating that version of the aforesaid two prosecution witnesses has surfaced. The point is that they (Devi Singh P.W.1 and Ram Raja P.W.2) were trying to falsely implicate other co-accused persons also in the incident, and this may be one of the probabilities behind such testimonial description. But it is obvious that it is not that simple because the transaction causing assault with axe and farsa forms part of the whole incident. This way, absence of any injury at least on the deceased Munna Raja in form of axe and farsa injury creates doubt at least on point that the witnesses, infact, saw the occurrence. Their testimonial account of the occurrence puts it that axe and 'farsa' blows were also caused but the medical testimony, on the whole, dislodges that claim. This way, absence of any injury at least on the deceased Munna Raja in form of axe and farsa injury creates doubt at least on point that the witnesses, infact, saw the occurrence. Their testimonial account of the occurrence puts it that axe and 'farsa' blows were also caused but the medical testimony, on the whole, dislodges that claim. So far as factual testimony of occurrence is concerned, both the aforesaid witnesses have stated that on the day of occurrence, deceased and the injured along with Ram Raja P.W.2 had gone to attend party at the house of Narayan Singh Pradhan in village-Banpur and they were returning while the incident took place near Tilya Nala. Their (Devi Singh P.W.1 and Ram Raja P.W.2) testimony reflects that Munna Raja (deceased) and Raj Pal (C.W.1) were moving on their respective bicycles and they were 100 to 125 steps ahead of the witnesses, who were also riding their bicycle. When assailants met them Hariram and Hoshiyar Singh exhorted and fired on Munna Raja and Raj Pal-both sustained gunshot injuries. Munna Raja ran a distance of 2-4 paces when Ajuddi and Jujhar Singh gave farsa blow on Munna Raja, whereupon, Munna Raja asked them why they are assaulting with farsa? If they want his post (Gram Pradhan), they may take it. The ocular version of occurrence further proceeds on line when both the aforesaid witnesses state that thereafter all the accused persons picked up his father, when Hoshiyar Singh after inserting country-made gun inside the mouth of Munna Raja, fired on him, which smashed the skull. Raj Pal had fallen after sustaining gunshot wound. Devi Singh P.W.1 and his uncle kept on raising alarm, whereupon they threatened that in case, they come near, they will not be spared. In such a situation the point arises for our consideration relates basically to fact about the distance from which the occurrence was witnessed. Admittedly in the examination-in chief of Devi Singh P.W.1-the distance has been described to be 100-125 steps behind the deceased. However, in his cross-examination on page 26 of the paper book, he says, he has come closer to the deceased and was at a distance of 50 steps and then stopped. He lighted his torch when the assailants were assaulting both the persons. Meaning thereby that two versions of distance surfaces-one 100-125 steps and the second version puts it as 50 steps. He lighted his torch when the assailants were assaulting both the persons. Meaning thereby that two versions of distance surfaces-one 100-125 steps and the second version puts it as 50 steps. The point is that even 50-60 steps means at least 100-120ft. distance. Whether a person can identify another person from such a distance? Obviously, it is not possible to identify from a distance of 100 125 steps because it will be a distance beyond 250ft. Even 100ft. distance around 8:00 p.m. in the month of June, is hardly visible. Mere use of torchlight here becomes suspicious for the reason that no memo of any torch was ever prepared by the Investigating Officer, although the Investigating Officer claims to have seen the torch. 27. At the cost of repetition, we may analyse fact that the occurrence, when taken as a whole, becomes doubtful because injury of farsa and axe has not been found on the body of deceased-Munna Raja. Even doctor witness, who conducted the postmortem examination on the dead body of Munna Raja, has categorically denied possibility of use of any such weapon. Here, we may also observe that both the witnesses of fact Devi Singh P.W.1 and Ram Raja P.W.2 may be partly correct and partly wrong and part of their testimony, which describes causing of gunshot wounds on the deceased and the injured may be believed while the part of the testimony, which describes causing of assault by farsa and axe is concerned, is to be discarded as embellishment and improvement. But testimony of both the aforesaid witnesses of fact Devi Singh P.W.1 and Ram Raja P.W.2, when read conjointly with the testimony of the injured witness Raj Pal C.W.1 it becomes obvious that the incident took place around 8.00-8:15 p.m. on 15.6.1991 and at that point of time this witness was accompanying Munna Raja and when they reached near Tilya Nala while returning from Banpur, there was no any other person present on the spot when firing was done. C.W.1 Raj Pal testifies that no other weapon was used in the offence. As soon as Raj Pal was hit with gunshot, he fled away from the scene leaving behind Munna Raja on the spot. On page no.54 of the paper book, he further testifies that two persons were firing from the other side of the road from a distance of 30ft. As soon as Raj Pal was hit with gunshot, he fled away from the scene leaving behind Munna Raja on the spot. On page no.54 of the paper book, he further testifies that two persons were firing from the other side of the road from a distance of 30ft. and the assailants did not say anything to them. The gunshot hit him on the stomach from front side. Pradhan Ji also sustained gunshot wound. Then Raj Pal C.W.1 put him on his shoulder and placed him under Mahua tree and while in the process of standing up, when gunshot again hit him (C.W.1). He has specifically stated that two fair-complexioned men were shooting, but he could not identify the assailants, meaning thereby, that Raj Pal C.W.1 admittedly was present on the spot, watched the shooters from a distance of 30 steps and was unable to physically identify them, then how is it possible for Devi Singh P.W.1 and Ram Raja P.W.2 to identify the assailants from a distance of at least more than 50 steps and no reason exits to disbelieve testimony of the injured witness. He says that no one else was present there when the gunshot was fired. How and why the other six persons were also involved in the incident possessing farsa and axe remains in dark. Incident cannot be accepted by hoding that use of gun, axe and 'farsa' was done by the accused persons. 28. Thus, the version of the incident, on the whole, described by Devi Singh P.W.1 and Ram Raja P.W.2 does not inspire confidence and their presence on the spot at the time of occurrence becomes doubtful and their testimony on point of occurrence becomes wholly unreliable. 29. In view of testimony of Raj Pal C.W.1 whose presence on the spot cannot be ruled out as he is injured witness as emerging on page no.57 of the paper book that he also flashed torchlight on the assailants, but fact is that he too was unable to identify the assailants. It means the torchlight was not sufficient to identify physically the assailants. Raj Pal C.W.1 further testifies that when he was fleeing away, two shots had already hit Pradhan Ji, whereas he heard sound of third fire while he had covered short distance. 30. It means the torchlight was not sufficient to identify physically the assailants. Raj Pal C.W.1 further testifies that when he was fleeing away, two shots had already hit Pradhan Ji, whereas he heard sound of third fire while he had covered short distance. 30. It has been questioned on behalf of the prosecution that Raj Pal C.W.1 has been won over and the reason advanced for such suggestion is based on fact that one of the co-accused Rajendra Singh happened to be a relative of Raj Pal C.W.1, but the argument is not sustainable in view of fact that Raj Pal C.W.1 has sustained as many as 13 gunshot wounds of various dimensions and it was easy for him to have implicated the real culprits, who caused these gunshot wounds and to have spare easily Rajendra Singh, who allegedly did not possess any firearm. But it is beyond our reason to believe that a person so extensively wounded by firearm, will ever try to protect the real assailants, who caused these firearm injuries. The testimony of Raj Pal C.W.1, we have already observed, cannot be discarded because presence of injuries on his person signifies his presence on the spot. On the contrary, presence of Devi Singh P.W.1 and Ram Raja P.W.2 on the spot at the time of occurrence is rendered highly improbable, because the wholesome of the manner and style of the incident if taken to be true on its face value fails to evoke reason and confidence. Thus, on the point of source of light, visibility and identification of the assailants, the testimony of the prosecution witnesses of fact Devi Singh P.W.1 and Ram Raja P.W.2 doesn't inspire confidence and they are not wholly reliable. 31. We also come across some material contradictions occurring in the testimony of the aforesaid witnesses of fact (Devi Singh P.W.1 and Ram Raja P.W.2) on point of description of the occurrence. Both the witnesses (Devi Singh P.W.1 and Ram Raja P.W.2) have testified on line that Hoshiyar Singh thrusted the gun inside mouth of the deceased and fired, but the Investigating Officer has denied of fact of any such statement having been made by Ram Raja and Devi Singh under Section 161 Cr.P.C.. This further strengthens possibility that both Devi Singh P.W.1 and Ram Raja P.W.2 did not see the real occurrence but they have been highly tutored. This further strengthens possibility that both Devi Singh P.W.1 and Ram Raja P.W.2 did not see the real occurrence but they have been highly tutored. Had they seen the occurrence, they would not have gone to the extent of describing the incident in the manner that axe and 'farsa' were also used on Munna Raja and the particular manner of thrusting the gun inside the mouth of Munna Raja would have been stated by them to the Investigating Officer. Thrusting of gun into the mouth of Munna Raja is a particular testimony because, it describes the manner and style of the incident, but the version becomes dubious in view of fact that no such particular statement was given by both the aforesaid witnesses to the Investigating Officer and the Investigating Officer has himself denied that. Not only this, but both the aforesaid witnesses have also not stated in their statement to the Investigating Officer that when they reached near Tilya Nala the sun had set, but the daylight existed and they identified the accused persons in the daylight. These two contradictions are very material and absence of such statement to the Investigating Officer shows that Devi Singh P.W.1 and Ram Raja P.W.2 are not telling the truth but are improving in material particulars and their testimony is full of embellishments in order to create false presence on the spot. Not only Devi Singh P.W.1 gave statement to the Investigating Officer about the time of occurrence as 8:00 p.m. Now Devi Singh P.W.1 recedes the time of occurrence and fixes it to 7:00 p.m. This vacillation in testimony and the statement given to the Investigating Officer throws lot of doubt on the veracity of prosecution witness. As such, it would be unsafe to place reliance on his testimony as the witness is unworthy of credit. 32. We can observe in unambiguous terms that presence of Devi Singh P.W.1 and Ram Raja P.W.2 becomes highly doubtful on the spot. Otherwise, their testimony would have been of different nature particularly on point of manner and style of occurrence. There is no worthy reason for Raj Pal C.W.1 not to name the two assailants who used firearm. But he failed to identify the real assailants. 33. Otherwise, their testimony would have been of different nature particularly on point of manner and style of occurrence. There is no worthy reason for Raj Pal C.W.1 not to name the two assailants who used firearm. But he failed to identify the real assailants. 33. In so far as motive part of the occurrence is concerned, it has been stated that on the day of the occurrence, Tehsildar of their village made certain measurement of lease (patta) land in the village, due to which accused-Hari Ram and Hoshiyar Singh had to vacate certain land on lease and this was the motivating cause of their discontent with the deceased and the injured. Here we can observe that motive loses significance in view of direct testimony of at least one injured witness Raj Pal-C.W.1. 34. We can also point out that there is no proof alluding to fact that Raj Pal C.W.1 was not fit to walk after he had sustained so many firearm injuries on his person, but the defence has vehemently claimed that no supplementary report, whatsoever, was prepared, which may reflect on the actual physical incapacity of the injured. And no such conclusion can be drawn that C.W.1 was, out and out under such physical condition and incapacity that it was not probable for him to run away after sustaining injuries. There is no supplementary medical report of Raj Pal C.W.1. Therefore, we can sum up that the nature of the injury was not grievous and of magnitude that it may incapacitate the injured from running away, as has been claimed by the prosecution, and it cannot be said that the person sustaining 13 firearm injury wounds would not be able to walk away from the scene. Therefore, claim of the prosecution regarding physical incapacity of injured Raj Pal to run away falls flat. There is no such conclusive testimony which may lead us to infer about total incapacity of Raj Pal to move away from the scene after he was hit by the firearm. 35. Therefore, claim of the prosecution regarding physical incapacity of injured Raj Pal to run away falls flat. There is no such conclusive testimony which may lead us to infer about total incapacity of Raj Pal to move away from the scene after he was hit by the firearm. 35. We have already discussed about material contradictions surfacing in the testimony of the prosecution witnesses of fact Devi Singh P.W.1 and Ram Raja P.W.2 in the statement recorded under Section 161 Cr.P.C. In such a scenario, on the wholesome reading of the testimony of the prosecution witnesses of fact and looking to the testimony of Raj Pal C.W.1, which we find clinching and consistent, under circumstance, we can observe that the trial court failed to appreciate properly the evidence, facts and circumstances of the case and it was guided more by the testimony of Devi Singh P.W.1 and Ram Raja P.W.2, which testimony, on its face value, appears to be replete with improbabilities creeping in the prosecution case, thus creating deep dent to a great extent on point of seeing the actual occurrence by Devi Singh P.W.1 and Ram Raja P.W.2. Thus, finding of conviction recorded by the trial court is vitiated in the eye of law and becomes perverse and erroneous. Consequently, the same is liable to be set aside. 36. It is essence of criminal jurisprudence that prosecution has to stand on its own leg and it cannot take advantage of any loophole created in the defence and it has to prove beyond reasonable doubt the charge brought against the accused, and in case the prosecution fails to prove the charge beyond all reasonable doubts, then it cannot be said that the charge stands proved against the accused on basis of preponderance of probability as is the case in hand. Here, the prosecution has not been able to prove the charges beyond all reasonable doubts and the finding of conviction recorded by the trial court dated 07.07.1995 passed by the Additional Sessions Judge, Lalitpur, in Sessions Trial No.93 of 1993 (State Vs. Ajuddi and others), arising out of case crime no.58 of 1991, under Sections 302/34 and 307/34 IPC, Police Station-Bandpur , District-Lalitpur , against the accused being erroneous is hereby set aside by us. 37. Consequently, the appeal deserves merit and the same is allowed. Accused-appellants are exonerated of all charges, as above. 38. Ajuddi and others), arising out of case crime no.58 of 1991, under Sections 302/34 and 307/34 IPC, Police Station-Bandpur , District-Lalitpur , against the accused being erroneous is hereby set aside by us. 37. Consequently, the appeal deserves merit and the same is allowed. Accused-appellants are exonerated of all charges, as above. 38. In this case, the accused-appellants are already on bail. They need not surrender. Their bail bonds are cancelled and sureties are discharged. However, they shall furnish surety bonds in compliance with Section 437A Cr.P.C. 39. Let a copy of this order be certified to the concerned trial court for its intimation and follow up action.