JUDGMENT : Dinesh Kumar Singh, J. This State appeal is directed against the judgment and order dated 30.09.1980 passed by the Sessions Judge, Hardoi in Sessions Trial No.A-260 of 1980 arising out of FIR registered at Case Crime No.96 of 1980 under Section 302 IPC dated 28.04.1980, Police Station Pihani, District Hardoi. Learned Trial Court vide impugned judgment and order under challenge had acquitted the accused of the charge. 2. Vide order dated 18.11.2014 the appeal against Jai Pal s/o Brij Lal was ordered to be separated as his whereabouts could not be known despite strenuous inquires made by the police. 3. Respondent No.1, Brij Lal had died in the year 1999 and to that effect a report was received from the learned C.J.M. Considering the aforesaid report of learned C.J.M., the appeal against appellant, Brij Lal was ordered to be abated. Hence, the present appeal survives only against respondent No.3 i.e. Satya Pal s/o Brij Lal. 4. The prosecution case as emerges out from the record is that Asgar Khan, the deceased accompanied his son, Shamshul, P.W.-1 was returning from the market of Gopamau, District Hardoi which was at a distance of about 3-4 miles from village Chaukhadiya of Sitapur District. It was also said that Ram Chandra and Hem Nath also accompanied him. The allegation was that when these persons were at a distance of two furlongs South of village Bilalpur, all the three accused persons came out from hiding. Accused, Satya Pal fired a shot in the air challenging Asgar Khan that they would teach him a lesson for implicating Jai Singh in a case. It was further alleged that on this, Brij Lal and Jai Pal started beating Asgar mercilessly by lathi and caused his death. It was further said that when witnesses tried to intervene, Satya Pal fired another shot to scare them and, thereafter, all the accused fled away from the place of incident. 5. A written report, Exh. Ka-1 was given at the Police Station Pihani by Shamshul, P.W.-1 son of the deceased. On the basis of aforesaid written report FIR (Exh.Ka-11) at Case Crime No.96 of 1980 under Section 302 IPC was registered at 00:10 Hours. 6. S.O. Vinod Kumar Sharma, P.W.-4 of the Police Station-Pihani undertook the investigation of the crime and reached at the place of occurrence at around 3:30 A.M. on 28.04.1990. On the basis of aforesaid written report FIR (Exh.Ka-11) at Case Crime No.96 of 1980 under Section 302 IPC was registered at 00:10 Hours. 6. S.O. Vinod Kumar Sharma, P.W.-4 of the Police Station-Pihani undertook the investigation of the crime and reached at the place of occurrence at around 3:30 A.M. on 28.04.1990. He prepared inquest report and other documents and after sealing the dead body sent it for post mortem expatiation. He also collected the simple and blood stained earth and one empty cartridge and some laddoos and Jalebi which were blood stained. He also recovered one Angochha, Topi etc., of the deceased from the site. He prepared the site plan and recorded the statement of the witnesses. Post Mortem of the dead body of the deceased was conducted on 28.04.1980 at 4:30 P.M. by Dr. A.N. Singh, Superintendent of District Hospital, Hardoi. 7. Dr. A.N. Singh who conducted the post mortem examination on the dead body of the deceased noticed the following ante mortem injuries on the body:- "1. Contused area 10 cms.x 8 cms. On the dorsum of right hand, Just below the wrist. 2. Lacerated wound 2.5 cms x 1 cm x bone deep, on the dorsum of right index finger. 3. Multiple contusions in an area of 25 cms. X 15 cms. On the left shoulder. 4. Lacerated wound 5 cms. x 1 cm x bone deep, 8 cms above the right ear. 5. Lacerated wound 9 cms x 1 cm x bone deep, 3 cms below the above injury. 6. Lacerated wound 4 cms x 1 cm x bone deep on the back of the head. 7. Multiple lacerated wounds in an area of 13 cms. x 7 cms x bone deep and cranial cavity deep." 8. The internal examination revealed fracture of right parietal, temporal and occipital bone. Left parietal and left temporal bones were also fond fractured. Membrane of the brain was lacerated. Hemorrhage was found in the brain. The middle as also the posterior cranial fossa was found fractured. 9. In the opinion of the doctor, cause of death was shock and coma as a result of ante mortem injuries. Thus, from the ante mortem injuries as also in the opinion of the doctor, it is clear that the death of Asgar Khan was homicidal which was caused by severe lathi blows given to him. 10. 9. In the opinion of the doctor, cause of death was shock and coma as a result of ante mortem injuries. Thus, from the ante mortem injuries as also in the opinion of the doctor, it is clear that the death of Asgar Khan was homicidal which was caused by severe lathi blows given to him. 10. The investigating officer after investigating the case filed charge-sheet against the accused under Section 302 IPC. The case was committed to the Sessions for trial. Vide order dated 09.09.1980 charge under Section 302/34 IPC was framed against the accused which they pleaded not guilty and claimed to be tried. 11. Prosecution to prove its case examined Shamshul-P.W.-1 and Hem Nath-P.W-2 as eye-witnesses of the occurrence. Vinod Kumar Shrma-P.W.-3 was the investigating officer while Islamul Haq-P.W.-4 was the Head Moharrir and Dr. A.N. Singh-P.W.-5 conducted the autopsy. 12. P.W.-1, Shamshul in his evidence said that Brij Lal and his two sons were residents of his village. He further said that there was no enmity between the accused and his deceased father. In the year 1979 the police apprehended Jai Pal and the accused suspected that the deceased had hand in the arrest of accused, Jai Pal. He further said that the Government officers used to know his father very well. His father was the sarpanch of the village and he had fair price shop for distribution of Sugar and food grains etc. He further deposed that the accused used to threaten that once Jai Pal was out of jail, they would teach his father a lesson of life. He said that on the date of incident i.e. 27.04.1980, he, Ram Charan and his father went to Gopamau Bazar for marketing. After shopping they all were coming back home at around 05:30 P.M. Hem Nath another resident of the village also accompanied them. When these people reached near village Bilalpur at around 6:00 P.M., three accused emerged out from hiding. Brij Lal and Jai Pal were armed with lathies and Satya Pal was armed with country made pistol. He said that he did not witness the emerging out of all these accused from bushes but it was his guess. Satya Pal exhorted on which he looked back and found the accused 30-35 fts. behind them. Satya Pal exhorted that the deceased had got Jai Pal arrested and they would take revenge that day. He said that he did not witness the emerging out of all these accused from bushes but it was his guess. Satya Pal exhorted on which he looked back and found the accused 30-35 fts. behind them. Satya Pal exhorted that the deceased had got Jai Pal arrested and they would take revenge that day. Satya Pal fired one shot in the air. After hearing the gun shot, the four persons including this witness and the deceased ran helter skelter. It was further said that Jai Pal and Brij Lal came running and and started giving severe lathi blows to the deceased and when the witnesses tried to intervene to save his father accused, Satya Pal fired one more shot in the air and threatened that if anyone would proceed, he would be killed. It was said that his father fell down but these accused did not stop but mercilessly continued giving lathi blows. He said that when they raised alarm, residents of village Bilalpur came and then the accused fled away. The witness went near his father and found him alive. However, after sometime he died. There was blood spilled on the ground. The bag which his father was carrying was lying nearby. Hem Nath was carrying sweets for the marriage of his sister and that bag also fell down nearby. He further said that he remained at the place of incident for 25 minutes and, thereafter, went to Gopamau on foot and then he went to his relative Haneef Khan's house. Haneef Khan told him to lodge the report. Report was written at the house of Haneef Khan where he reached around 8:00 P.M. He proved the complaint which was marked as Exh.Ka-1. He further said that he went to Police Station Pihani around 00:00 Hours. Rauf Khan accompanied him. He said that Rauf Khan reached at the place of occurrence after havng got the knowledge of the incident. Rauf Khan accompanied him to Gopamau and Pihani as well. 13. In his cross examination ,he said that Asgar Khan, Rauf Khan and Aslam Khan came to the place of incident after hearing about the murder of his father but he did not know who all others came. He said that leaving the dead body in the custody of them, he came to Gopamau. He admitted that his father had enjoyed good relation with the police. He said that leaving the dead body in the custody of them, he came to Gopamau. He admitted that his father had enjoyed good relation with the police. 4-5 years before, 4 dacoits were killed by the police and his father accompanied the police having his licensed gun. He said that Haneef Khan was Head Constable in the police and he was getting pension and report was got written in front of him. He admitted that the accused never threatened his father in front of him. He said that after giving the complaint at the police station he came back by bicycle at the place of incident at around 4:30 A.M. However, the I.O. had already reached there on motorcycle. He did not remember that who were the inquest witnesses nor he remembered whether there was any witness of the inquest from his village or not. He denied the suggestion that he was not present at the place of incident nor he witnessed the murder. He also denied the suggestion that the complaint was not given at 00:00 Hours but it was given on the next day after he reached at the place of incident. 14. P.W.-2, Hem Nath in his evidence said that he knew the accused present in the Court who were residents of his village. He said that on the date of incident he was coming from Gopamau Bazar at around 6:00 P.M. When they were two furlongs away from village Bilalpur, he saw that the three accused exhorted and Satya Pal said to the deceased that be prepared as they would take revenge for implicating Jai Pal. The court noticed the demeanor of the witness who was biting his nail while he was deposing. He said that Shamshul was 2-3 fts behind him and Ram Charan was 3-4 fts behind Shamshul and Asgar was 4-6 fts behind Ram Charan. The accused were 15-16 fts behind them. He said that when the accused exhorted Satya Pal, fired one shot in the air and, thereafter, they all ran here and there. He said that his bag fell down there. Accused, Jai Pal and Brij Lal started assaulting the deceased by lathi and when he and others present tried to intervene, Satya Pal fired one more shot in the air. Thereafter, the accused ran away towards West. He said that he remained at the place of incident whole night. He said that his bag fell down there. Accused, Jai Pal and Brij Lal started assaulting the deceased by lathi and when he and others present tried to intervene, Satya Pal fired one more shot in the air. Thereafter, the accused ran away towards West. He said that he remained at the place of incident whole night. The I.O. gave the bag to him in his supurdari. He said that in the bag there was 25 kg sweets i.e. Jalebi and laddoos. 30-40 laddoos fell down on the ground. He said that he remained at the place till 6:00 A.M. and thereafter, he came home as there was marriage of his sister. He said that murder took place at 6:00 P.M. After murder he remained at the place of incident. Nobody from the house of the deceased reached. However, Shamshul went to his village Chaukhadiya and from there he came back along with Rauf. He came back around 7-8:00 P.M. with Rauf. Thereafter he went to village at 9:00 P.M. He further said that he went to his village at 2:00 A.M. to look after the Barat of his sister and, thereafter, he came back at the place of incident where the dead body was lying. He further said that he came back at 11:00 P.M. and remained with the dead body till morning. Thereafter, he said that at 11:00 P.M. when he came back, Akbar, Najaf Ali and Afsar were present near the dead body and he wrongly said that the S.O. was present near the dead body. He said that when he left for his village to look after the Barat of his sister, at that time Shamshul and Rauf were there. Ram Charan was also present there. 15. He further said that at around 2-2:30 A.M., police inspector reached there but he was not present at the place of incident. He again said that at 3:00 A.M. he went to the place of incident again. 16. On further cross examination, he said that he went to his house only once and he did not go 2-4 times. He went to his house at around 9-9:30 P.M. and then came back at 3:00 A.M. When he came back, the SHO was present and he said that he wrongly deposed that at 11:00 P.M. he was present. 16. On further cross examination, he said that he went to his house only once and he did not go 2-4 times. He went to his house at around 9-9:30 P.M. and then came back at 3:00 A.M. When he came back, the SHO was present and he said that he wrongly deposed that at 11:00 P.M. he was present. He further said that he had fair price shop of the Gram Sabha. He used to get 10 quintal of Sugar for distribution at the rate of Rs.2810/- per quintal. He was having fair price shop for 6-7 years. Before him fair price shop was in the name of Asgar which was cancelled by Deputy Collector. Asgar did not distribute the Sugar to the villager. Therefore, a complaint was made against him. He said Asgar came to the place where dead body was lying. He said that when the gun shot was fired, he was 16 fts away and from there he saw the assault. He further said that Chaukidar came to call him and said that Police Inspector was calling him. At that time it was 3:00 A.M. Then he reached at the place of incident. The dead body was not sealed. The I.O. made enquiries from him. The I.O. asked him to look after the Barat and come back. The blood was oozing out only from the head of Asgar. He denied the suggestion that he was the servant of Asgar and he lived in his house and Asgar was running the fair price shop in his name. 17. P.W.-3, I.O. Vinod Kumar Sharma deposed that in April, 1980 he was posted as S.O. at PS-Pihani and the FIR was registered in his presence. He took the statement of complainant, Shamshul at the Police Station and proceeded to the place of occurrence at the night itself. He reached at the place of incident at around 3:00 A.M. At around 6:00 A.M. he conducted the inquest and prepared the inquest report and, thereafter, prepared other documents and sealed the dead body and sent it for postmortem examination. He inspected the place of incident and prepared the site map. These documents were proved by him and exhibited. He said that when he reached at the place of incident, he met Hem Nath, Ram Charan and some other persons of village Bilalpur. He inspected the place of incident and prepared the site map. These documents were proved by him and exhibited. He said that when he reached at the place of incident, he met Hem Nath, Ram Charan and some other persons of village Bilalpur. He did not meet Shamshul at the place of incident. He met him only at the Police Station. He reached at the place of incident at 3:30 A.M. and he did not find any person present from the family of the deceased. Ladies from the family of the deceased came in the morning at about 5:00 A.M. near the dead body. Shamshul met him at round 5:30 A.M. at the place of incident with the Police Chaukidar. He denied the suggestion that after reaching the place of incident he called Shamshul from his house and, thereafter, got the FIR registered. He denied the suggestion that the FIR was ante time. With respect to overwriting in the column of the time in chik report, he admitted that there was overwriting. However, he denied the suggestion that the inquest was not conducted when FIR was alleged to have been registered. He explained that he wanted to write 12:10 A.M. but it was not in usual practice, therefore, he wrote 00:10 Hours. He admitted that there was also an overwriting in Chalan Lash where time was mentioned as 8:30. He did not find any money in the pocket of the deceased. He denied the suggestion that he did not meet Hem Nath nor he gave Laddu and Jalebi in the Superdari of Hem Nath. 18. P.W.-4, Islamul Haq was constable at Police Station-Pihani District Hardoi and he said that at 00:10 Hours, Shamshul gave the complaint and on that basis he prepared the chik report which was exhibited as Exh.Ka-11. He made entries in the G.D. which was in his writing and copy of which was marked as Exh.Ka-2. He denied the suggestion that the FIR was ante time. 19. P.W.-5, Dr. A.N. Singh Superintendent of District Hospital, Hardoi proved the post mortem report. 20. The accused in their statement under Section 313 Cr.P.C. denied the allegations and said that they were falsely implicated. He denied the suggestion that the FIR was ante time. 19. P.W.-5, Dr. A.N. Singh Superintendent of District Hospital, Hardoi proved the post mortem report. 20. The accused in their statement under Section 313 Cr.P.C. denied the allegations and said that they were falsely implicated. The Trial Court after considering the evidence in detail noticed that the murder was said to have been committed on 27.04.1980 at 6:00 P.M. However, the FIR was alleged to have been lodged on 28.04.1980 at 00:10 Hours. The delay was explained that the complainant walked on foot up to Gopamau and then up to Pihani which could not be believed. 21. Learned Trial Court noticed that there was overwriting in three documents i.e. FIR, inquest and chalan lash, Exhs.Ka-11, 2 and 4. There was no proper explanation coming forth from the I.O. with respect to overwriting made in the documents. The Trial Court did not find the explanation offered by the I.O. satisfactory. The Trial Court after considering the entirety of the evidence came to the conclusion that Shamshul was not an eye witness of the occurrence and he was not present when the incident took place. The Trial Court did not believe the testimony of Shamshul and Hem Nath and, therefore, recorded a finding that the case against the accused was not proved beyond reasonable doubt. 22. Now, we need to examine the evidence to find out whether the prosecution was able to prove its case against accused-appellant beyond reasonable doubt. Satya Pal had been assigned the role of firing two shots. We find it strange that when Satya Pal was armed with a deadly weapon of firearm, he did not fire at the deceased but he fired in the air. If there was common intention to cause death of the deceased, it would have been natural for Satya Pal to fire at the deceased and not in the air. The presence of Satya Pal is highly doubtful at the place of incident. If the presence of witnesses, Shamshul and Hem Nath was doubtful, the evidence of Hem Nath is not at all convincing. The contradictions in his deposition are glaring and his evidence does not inspire confidence. His evidence is not of sterling quality which can be given credence to convict the accused for the offence of murder of the deceased. If the presence of witnesses, Shamshul and Hem Nath was doubtful, the evidence of Hem Nath is not at all convincing. The contradictions in his deposition are glaring and his evidence does not inspire confidence. His evidence is not of sterling quality which can be given credence to convict the accused for the offence of murder of the deceased. At one place P.W.-2 says that he left the place at 9:00 P.M. and at other place he says that he left the place at 11:00 P.M. Then he says he came back 3:00 A.M. On the other hand, P.W.-3 was categorical in his statement that when he reached at the place of incident no one from the family of the deceased was present. There are contradictions in the statements of P.W. Nos.1, 2 and 3 with respect to the incident etc. There are overwriting in the material documents which the prosecution had failed to explain properly. 23. Considering all these aspects and particularly the unnatural conduct of the witnesses who did not even try to save the deceased who was being assaulted by lathi, it does not inspire confidence that these witnesses were present when the incident took place. It appears that the deceased had enjoyed good relations with the police and to make out a case against the accused a story had been cooked up to falsely implicate the accused, Satya Pal who was alleged to have been armed with country made pistol. This country made pistol was neither recovered nor the cartridge was sent for forensic examination. The investigation was lopsided and botched up only to implicate the accused. Shamshul at one place said that his father was having fair price shop but P.W.-2 had categorically said that fair price shop was in his name for last 6-7 years and earlier the fair price shop was in the name of Asghar which was cancelled by Deputy Collector. 24. The entirety of the evidence available on record does not lead to the conclusion beyond reasonable doubt that the accused, Satya Pal was present at the place of incident and participated with the commission of crime. 25. In view of the aforesaid, we do not find any merit and substance in the present appeal of the State which is hereby dismissed. 26. We affirm the impugned judgment an order passed by learned Trial Court. 27. 25. In view of the aforesaid, we do not find any merit and substance in the present appeal of the State which is hereby dismissed. 26. We affirm the impugned judgment an order passed by learned Trial Court. 27. The accused is already on bail. Nothing furhter needs to be done. The bail bonds of the appellants are cancelled and sureties are discharged.