JUDGMENT : Hon'ble Arvind Kumar Mishra-I,J. 1. By way of instant criminal appeal, challenge has been made to the validity and sustainability of the judgement and order of conviction dated 04.01.1988 passed by the VIII Additional Sessions Judge, Bareilly, in Sessions Trial No. 257 of 1983 - State Vs. Indrajeet and another, arising out of Case Crime No.101, Police Station- Deorania, District- Bareilly, whereby, the appellant- Indrajeet - has been convicted and sentenced to seven years R.I.- Under Section 307 IPC; and appellant- Sunder Lal- has been convicted and sentenced to two years R.I. under Section 307 read with Section 34 IPC. 2. Heard Sri Sandeep Mishra, Sri Vishvendra Singh, learned counsel for the appellants and Sri B.D. Nishad, learned AGA for the State and perused the record of this appeal. 3. Facts of this case, as discernible from the record, appear to be that the FIR dated 23.7.1982 lodged at 10.30 A.M. (Exhibit Ka-2), which was orally dictated to Constable- Sriniwas by the informant- Prithvipal s/o Bihari Lal Gangwar, resident of village- Gargaiya, Police Station- Deorania, District- Bareilly, is indicative of fact that Bihari Lal (informant's father) and Omwati (informant's mother) were sleeping in the 'Chhappar', whereas, informant- Prithviraj- along with his wife- Durgawati- were sleeping in the 'Khaprail' (baked mud tiles)- adjacent to the place where Bihari Lal and his wife Omwati were sleeping. At about 2-2.30 A.M. in the night, due to some sound, they woke-up and Bihari Lal asked as to who was there. The informant- Prithvipal- flashed torch light and saw Indrajeet and Sunder Lal (informant's uncle) standing in the courtyard. Sunder Lal instigated Indrajeet to open fire and on the instigation, Indrajeet shot fire with country-made gun (tamancha) at Bihari Lal and fled away from the spot. On Screaming of Bihari Lal and informant's family, Mathura Prasad and some other villagers arrived on the spot where they saw Bihari Lal sustained injuries on the left side of his chest and blood was oozing out. As soon as the informant started conveying his father on the 'dunlop', it began to rain. However, he along with others reached to the police station. Informant requested to send his father for treatment in the hospital as the condition of his father was deteriorating and request for lodging the report was made against accused- Indrajeet and Sunder Lal. 4. As soon as the informant started conveying his father on the 'dunlop', it began to rain. However, he along with others reached to the police station. Informant requested to send his father for treatment in the hospital as the condition of his father was deteriorating and request for lodging the report was made against accused- Indrajeet and Sunder Lal. 4. Relevant entry of contents of oral information was noted in the concerned Check FIR at case crime number 101 at aforesaid date and time at police station- Deorania, District- Bareilly. On the basis of entries made in the Check FIR, a case was registered at Serial No.14 of General Diary at aforesaid crime number under aforesaid sections of IPC against accused. The relevant GD entry is Exhibit Ka-3. 5. Record reflects that S.I. Bangali Mal Sehgal proved the FIR- Exhibit Ka-2, G.D.- Exhibit Ka-3 and other relevant papers. He inspected the spot and prepared the site plant, which is Exhibit Ka-4. 6. Record suggests that injured- Bihari Lal- was taken to the hospital in the Emergency Ward of District Hospital, Bareilly, where doctor A.P. Singh gave treatment to the injured and tried to save his life. He operated the stomach of Bihari Lal and found the following injuries: 7. One lacerated wound which was gunshot wound 2-1/2 cm x 2 cm abdominal cavity deep left side of chest 3 cm below the left side ribs. The margins were inverted. Tattooing and charring present. Blood oozing out. 8. Operation was conducted and the intestine was found badly lacerated. The injured was admitted at the District Hospital and remained there from 23.7.82 to 5.10.82. The bed head ticket is Exhibit Ka-1 on record. 9. As a sequel to that, Investigating Officer P.W.4 after recording the statement of the witnesses and after completing the necessary formalities, he filed the charge- sheet against the appellants, which is Exhibit Ka-5 on record. 10. Thereafter, committal proceeding took place and the case was committed to the Court of Session from where it was made over for trial and disposal to the aforesaid court of VIII Additional Sessions Judge, Bareilly where the accused persons were heard on point of charge and the learned trial court was satisfied with prima-facie case and accordingly, framed charge under Sections 307 and 307/34 IPC against aforesaid accused persons. Charge was read over and explained to the accused, who abjured charges and opted for trial. 11. The prosecution in order to prove guilt of the accused examined as many as five prosecution witnesses, namely, Durgawati P.W.1 (witness of fact and eyewitness), Mathura Prasad (witness of fact) P.W.2, Dr. A.P. Singh P.W.3 (conducted surgery of the injured and proved in the injury report, Exhibit Ka-1), Bangali Mal Sehgal P.W.4 (Investigating Officer of this case and proved various papers of the investigation) and Dr. J.L. Bhargawa P.W.5 (proved the bed-head-ticket). 12. After recording testimony of aforesaid five witnesses, no further evidence was adduced by the prosecution, therefore, evidence for the prosecution was closed and the statement of the accused were recorded under section 313 Cr.P.C. wherein they have claimed to have been falsely implicated in the case on account of enmity and pending lis between both of parties. 13. The defence did not lead any evidence. 14. The learned trial court after hearing both the sides on merit of the case and after appraising the facts and evaluating evidence on record returned finding of conviction and sentenced both the appellants- Indrajeet and Sunder Lal- to 7 years R.I. and 2 years R.I. under Sections 307 and 307/34 IPC, respectively. 15. Consequently, this appeal. 16. Learned counsel for the appellants raised contention to the ambit that there is no eye-witness in support the prosecution case. He adds that testimony of Durgawati P.W.1 and Mathura Prasad P.W.2 is itself suggestive of fact that they are not the actual eyewitnesses of fact of the incident and their testimony is full of conjecture, surmises and guess work. Had any such incident taken place on the spot, there would have been every possibility of the blood spilled on the ground, but mark of blood stain, whatsoever, was not found by the Investigating Officer upon his visit to the spot. Investigating Officer also did not find any cloth, cot, cartridges and gun. This particular aspect shows that place of occurrence is exactly not the place where the incident occurred. He further submits that accused have been falsely roped in, in this case because of landed property dispute, which was going on in between them. The real assailants could not be traced out and identified, therefore, the entire allegations against the appellants are baseless. He further submits that accused have been falsely roped in, in this case because of landed property dispute, which was going on in between them. The real assailants could not be traced out and identified, therefore, the entire allegations against the appellants are baseless. Learned counsel for the appellants summed up that the testimony of prosecution witness of fact P.W.1 and P.W.2 is inconsistent and shaky, which does finds corroboration from independent source. The prosecution has not been able to prove its case beyond reasonable doubt and the trial court erred; while recording finding of conviction which finding itself is, on the face, shaky and untenable, based on conjecture and surmises, thus, conviction sans merit. 17. Per contra, learned AGA has refuted aforesaid argument on the ground that ocular testimony of the occurrence is innocuous, consistent and clinching. It describes in detail the manner and the style of the occurrence as to how and when it was caused by the accused and it has been specifically stated that the shot was fired by using country-made gun by the accused. The testimony of doctor carries only opinionative value and it is neither binding nor conclusive in nature. There is no material contradiction in the testimony of the prosecution witnesses of fact and the medical evidence on record. The nature of contradiction appearing in the testimony of the prosecution witnesses of facts is of trivial and negligible magnitude and the same does not create any dent in the prosecution story. 18. The trial Judge has rightly taken the things in right perspective and he was justified in recording the conviction against the accused persons. 19. I have considered the rival submissions and also considered the assertion made by the prosecution regarding the charge brought against the accused persons. The moot point that engages attention for determination of this appeal basically relates to fact whether the prosecution has been able to prove its case beyond all reasonable doubt against the accused? 20. 19. I have considered the rival submissions and also considered the assertion made by the prosecution regarding the charge brought against the accused persons. The moot point that engages attention for determination of this appeal basically relates to fact whether the prosecution has been able to prove its case beyond all reasonable doubt against the accused? 20. Before averting to the merit of this case, it would be pertinent to take note of contents of the first information report, which inter alia, is suggestive of fact that the incident allegedly took place around 2.00-2.30 P.M. in the intervening night 22/23.8.82 and the oral report was lodged by Pritivipal (scribed by Constable- Sriniwas) at police station- Deorania, district- Bareilly on 23.7.82 at 10.30 A.M. The Check FIR is Exhibit Ka-2. 21. In this case, there are two witnesses of fact i.e. Durgawati P.W.1 and Mathura Prasad P.W.2. Rest of the witnesses are formal witness. Rest of the witnesses i.e. Bihari Lal (injured), Omwati (injured wife) and Prithvipal (informant) have been murder after the alleged incident and not examined by the trial court. Therefore, the only eyewitness, who is alive is Smt. Durgawati P.W.1. On page no.23 and 24 of the paper book, she has specifically stated that she was not present on the spot, however, in the latter part of her testimony, she has tried to improve her version by stating that she witnessed the occurrence from the door of her room. She has categorically stated in her deposition (page no.23 of the paper book) that her husband was present on the spot, but she was not present on the spot. It means that she did not see the actual occurrence and her testimony cannot be believed to be correct one. Her testimony does not inspire confidence and her deposition is tutored and interested one. 22. The wholesome testimony of Mathura Prasad P.W.2 is rated to be second category testimony, in so far as actual occurrence is concerned, he arrived on the spot after the incident had taken place. Therefore, his testimony, too, does not inspire confidence. 23. In the above testimonial backdrop, both the witnesses of fact P.W.1 and P.W.2 appears to be interested and tutored witnesses, therefore, their testimony on the whole does not inspire confidence. There is no other factual witness, who may corroborate the fact that he witnessed the actual incident. Therefore, his testimony, too, does not inspire confidence. 23. In the above testimonial backdrop, both the witnesses of fact P.W.1 and P.W.2 appears to be interested and tutored witnesses, therefore, their testimony on the whole does not inspire confidence. There is no other factual witness, who may corroborate the fact that he witnessed the actual incident. Both the injured and the informant have not been examined either by the Investigating Officer or before the trial court for reason that prior to recording of their testimony they were murdered. One particular aspect of the case is that the Investigating Officer did not find any blood stained or any such marks on the spot as testified on page- 34 of the paper book and in that way, the place of occurrence becomes doubtful. 24. It is obvious that some incident took place in the night intervening 22/23.7.1982 at about 2.00-2.30 A.M., but who caused the incident looms into darkness. 25. Upon wholesome of the entire testimony on record, obviously, there is no evidence, which may establish fact that in all reasonableness the appellants have committed the offence. Contention raised to the extent that the appellants have been roped in, in this case on account of their being relative and due to ongoing enmity on ground of lis pendence between them, which appears to be correct as the motive for false implication. 26. The entire gamut of criminal jurisprudential law is based on principle that the prosecution would have to establish charge beyond all reasonable doubt in order to ensure conviction against an accused. Scale of guilt is to be drawn and established by proper evaluation of testimony and appraisal of relevant facts qua attendant circumstances of the case. If evaluation of testimony and appraisal of facts sans proper appreciation and transcends judicious discretion while basing conviction arbitrarily on untenable and unfounded material, then the finding of conviction so recorded becomes erroneous and perverse, on the face. Such finding, being perverse, is liable to be discarded. The trial court based its finding more on whims than on material on record. 27. Such finding, being perverse, is liable to be discarded. The trial court based its finding more on whims than on material on record. 27. Above discussion takes to the conclusion that the prosecution has not been able to prove its case beyond all reasonable doubt against the accused for various reasons and the trial court committed gross error in recording conviction against the accused, therefore, the finding of conviction being erroneous and perverse on the face, the same cannot be sustained in the eye of law, as such the finding of conviction recorded by the trial court vide its order dated 04.01.1988 passed by the VIII Additional Sessions Judge, Bareilly, in Sessions Trial No. 257 of 1983 - State Vs. Indrajeet and another, arising out of Case Crime No.101, Police Station- Deorania, District- Bareilly, under Sections 307 and 307 read with 34 IPC is hereby set aside and the accused-appellants are exonerated of all charges. The appeal is allowed, accordingly. 28. Appellants are on bail. They need not surrender in this case. Their personal bonds and bail bonds are cancelled and sureties are discharged. However, they will comply with the provisions of Section 437-A Cr.P.C. 29. Let a copy of this order/judgement be certified to the court below for necessary information and follow up action.