JUDGMENT Ram Krishna Gautam, J. This Jail Appeal under section 374(2) of Cr.P.C. has been filed by appellant Shiv Bhajan @ Ram Bhajan @ Kharedam through Senior Superintendent, Central Jail, Naini, Allahabad, under section 383 Cr.P.C. against judgment of conviction and sentence made therein dated 28.3.2011 passed by Additional Sessions Judge/ F.T.C. II, Kaushambi, in S.T. No. 58 of 2006, State of U.P. Vs. Shiv Bhajan @ Ram Bhajan @ Kharedam, arising out of Case Crime No. 74 of 2005, under section 302 I.P.C., Police Station Puramufti, District Kaushambi, whereby convicting appellant for offence punishable under section 302 I.P.C. and sentencing him to life imprisonment with fine of Rs. 10,000/- and in default of payment of fine two years' additional imprisonment with this contention that Trial Court failed to appreciate facts and law placed before it. Two witnesses examined as witnesses of fact, who were named as eyewitness account in first information report, have turned hostile. They have not supported prosecution case. The only witness of fact PW1 is informant, father of deceased, who too failed to prove his presence on the spot or source of light or occurrence to be committed by convict appellant. His sole testimony was not trustworthy, but the Trial Judge based its judgment upon unreliable testimony of PW1 and passed impugned judgment of conviction and sentence made therein. 2. Heard Sri Pawan Singh Pundir, learned Amicus Curiae, appearing on behalf of appellant and Sri Ratan Singh, learned AGA for the State. Perused the lower court's record as well as impugned judgment. 3. In brief facts on record reveal that a first information report as Case Crime No. 74 of 2005 under section 307 I.P.C. was lodged at Police Station Puramufti, District Kaushambi, against Kharedam, son of Munni Lal, resident of Shanharpur Peepalgaon, Police Station Dhoomanganj, District Allahabad, on 24.4.2005 at 8.30 P.M. upon written report of Arjun Lal scribed by Dheerendra Kumar Shukla (Ext. Ka1) with this contention that informant's son Ram Sukh Kori, aged about 20 years, was standing near graveyard situated towards north side of his house under conversation with Kharedam, son of Munni Lal, resident of Shanharpur Peepalgaon, Police Station Dhoomanganj, District Allahabad, when at about 7.45 P.M. in the night of 24.4.2005 Kharedam under anger gave a firearm shot over Ram Sukh Kori with intention to kill him, who shouted upon which this informant, his real brother Sunder Lal, Shambhoo Lal son of Late Bharsoor and many others of village rushed on the spot when Kharedam was giving knife blow to Ram Sukh Kori, who had fallen there at. He fled towards western side. This informant and witnesses have seen and identified Kharedam, while giving knife blow and running from spot. Injured Ram Sukh Kori was taken at Police Station and this report, which was scribed by Dheerendra Kumar Shukla and signed by Arjun Lal, son of Late Ram Adhar, resident of Village Bihka alias Puramufti, District Kaushambi, was submitted for legal recourse. Injured Ram Sukh Kori was instantly taken to Swarooprani Medical College, Allahabad, for treatment, where he was admitted upon letter of Station Officer, Police Station Puramufti. Ram Sukh Kori succumbed to above injuries on 28.4.2005 at 12.15 P.M. This was informed by Constable Vishnu Lal. Inquest proceeding followed by preparation of requisite police papers for autopsy examination and autopsy examination in intact sealed dead body of Ram Sukh Kori was conducted in which death owing to above antemortem injury of wound of entry of close range by firearm shot as well as lacerated wounds of sharp edged weapon as well as of hard blunt object were held to be cause of death. This case crime number 74 of 2005 was altered into offence of murder punishable under section 302 I.P.C. Investigation resulted in filing of charge sheet (Ext. Ka6) for offence of murder punishable under section 302 I.P.C. against Shiv Bhajan @ Ram Bhajan @ Kharedam. C. J. M. took cognizance on 13.9.2005. 4. As the offence was exclusively triable by Court of Sessions, hence case was committed to Court of Sessions. Ka6) for offence of murder punishable under section 302 I.P.C. against Shiv Bhajan @ Ram Bhajan @ Kharedam. C. J. M. took cognizance on 13.9.2005. 4. As the offence was exclusively triable by Court of Sessions, hence case was committed to Court of Sessions. Sessions Judge after hearing learned Government Counsel for State as well learned counsel for defence framed charge for offence of murder against Shiv Bhajan @ Ram Bhajan @ Kharedam on 29.5.2006, which was subsequently amended vide charge dated 6.9.2010 by Additional Sessions Judge/ F.T.C. No. 2, Kaushambi, as follows:- ^^eaS] Mk0 cky eqdqUn] vij l= U;k;k/kh'k@,Q0Vh0lh0&2] dkS'kkEch vki vfHk;qDr f'koHktu mQZ jkeHktu mQZ [kM+sne dks fuEu vkjksi ls vkjksfir djrk gWw%& 1& ;g fd fnukad 24-4-2005 dks jkf= djhc 07-45 cts LFkku ogn xzke fcgdk mQZ iwjkeqrh varxZr Fkkuk iwjkeqrh tuin dkS'kkEch esa vkius oknh eqdnek vtqZu yky ds edku ds mRRkj rjQ fLFkr dfczLrku ds ikl mlds yM+ds jkelq[k dksjh ij tku ls ekjus dh fu;r ls dV~Vs ls Qk;j fd;kA fxj tkus ij pkdw ls Hkh okj fd;k ftlls mldh e`R;q nkSjku bykt gqbZA vkidk mDr d`R; Hkkjrh; n.M lafgrk dh /kkjk&302 ds varxZr ,d n.Muh; vijk/k gS tks bl U;k;ky; ds izlaKku esa gSA ,rn~}kjk vkidks funsZf'kr fd;k tkrk gS fd mDr vkjksi ds varxZr vkidk fopkj.k bl U;k;ky; }kjk fd;k tk;sxkA^^ “That you on 24.4.2005 at 7.45 P.M. at Village Bihka alias Puramufti within area of police station Puramufti, District Kaushambi, committed murder of Ram Sukh Kori, son of Arjun Lal in north of house of informant near graveyard by firearm shot with intention to kill and when he fell down you assaulted by knife too. Ram Sukh Kori died during course of treatment, thereby you committed offence of murder punishable under section 302 I.P.C. within the cognizance of the court.” (English translation by Court) 5. Charge was read over and explained to accused, who pleaded not guilty and claimed for trial. 6. Prosecution examined PW1-informant Arjun Lal, PW2- Sunder Lal, PW3- Mangal Das, PW4- Ram Singh, PW5- Bhaee Lal, PW6- Dr. Ajay Kumar Chaddha, PW7- Gulab Singh, PW8- Dr. Rafat Jamal Siddiqui, PW9- S.I. Ram Kumar Yadav, PW10- S.I. A. K. Singh, PW11- S.I. Surendra Singh and PW12- Constable Ram Naresh Pandey. 7. 6. Prosecution examined PW1-informant Arjun Lal, PW2- Sunder Lal, PW3- Mangal Das, PW4- Ram Singh, PW5- Bhaee Lal, PW6- Dr. Ajay Kumar Chaddha, PW7- Gulab Singh, PW8- Dr. Rafat Jamal Siddiqui, PW9- S.I. Ram Kumar Yadav, PW10- S.I. A. K. Singh, PW11- S.I. Surendra Singh and PW12- Constable Ram Naresh Pandey. 7. With a view to have explanation, if any, and version of accused over incriminating evidence furnished by prosecution, he was examined and his statement u/s 313 Cr.P.C. was recorded. Wherein the accusation was denied with contention that testimonies of prosecution witnesses to be false with specific contention that ^^esjk uke f'koHktu rFkk [kM+sneu ugha gSA esjk uke dsoy jkeHktu gSA oknh us vius rhljs pj.k ds c;ku esa ykSafM;kckth ds pDdj esa vius yM+ds dk dRy gksuk crk;k gSA ;fn oknh ds yM+ds dh vk'kuk;h fdlh Hkh yM+dh ls Fkh rks mldh gR;k yM+dh ds ifjokj okyksa us lqulku txg esa fd;k gSA eSaus dRy ugha fd;k gSA^^ “My name is only Ram Bhajan and not Shiv Bhajan or Kharedam. Informant in his statement at the third stage has said that his son was murdered because of some love affairs, hence family members of that girl with whom the deceased had love affair, might have murdered him in the night but this accused has not committed murder of the deceased.” (English translation by Court) 8. Additional Sessions Judge has further examined the accused by mentioning his name as Shiv Bhajan @ Ram Bhajan @ Kharedam in which testimonies of prosecution witnesses has been said to be false and his false implication under police plan and pressure. No evidence in defence was given by accused-appellant. 9. Trial Judge after hearing learned counsel and learned counsel for defence passed impugned judgment of conviction for offence of murder punishable under section 302 I.P.C. against convict appellant and awarded sentence, as aforesaid, against which this appeal. 10. Learned counsel for the appellant vehemently argued that murder of deceased Ram Sukh Kori on above date, time and place of occurrence is not disputed, but implication of convict appellant was false and for it there was no evidence on record. Two of the witnesses of fact PW2 and PW3 became hostile and they did not support the factum of commission of this offence of murder by convict appellant. Two of the witnesses of fact PW2 and PW3 became hostile and they did not support the factum of commission of this offence of murder by convict appellant. The only testimony of PW1-informant was of eyewitness account, but he too has said that prior this occurrence he had never met convict appellant, then how he was able to know his name and parentage or his involvement. Moreso, source of light for this occurrence of night has not been said and proved by prosecution. There is no electricity pole in the site map nor house of informant has been shown in site map. The witnesses, who were shown to have their houses nearby spot, have not been examined nor maternal grandfather or any member of his family has been examined. There is no clue that Shiv Bhajan @ Ram Bhajan @ Kharedam is one and the same person, whereas report was lodged only against Kharedam. This was disputed by convict appellant that he has no concern with Kharedam. He has no alias name either Kharedam or Shiv Bhajan, rather he was Ram Bhajan against whom no allegation was made. Rest of the witnesses were of inquest proceeding, autopsy examination and investigation. They have not established the name and identity of the convict appellant. Hence, prosecution failed to prove charge beyond doubt against convict appellant. 11. Learned AGA has argued that it was instant report in which injured was taken to hospital along with first information report. He was got admitted for treatment on the pretext of police. He remained in hospital under treatment for four days but he succumbed to above antemortem injuries and informant was eyewitness account, who has proved the case against convict appellant. 12. PW1-Informant Arjun Lal in his examination in chief has said that he took his injured son at police station instantly and got the report scribed by Dheerendra Kumar Shukla, put his signature and lodged at Police Station Puramufti. The same is on record, proved and exhibited as Exhibit Ka1. His son was got admitted at Swarooprani Hospital, Allahabad, where he remained for three days and died on the fourth day. Inquest proceeding was got conducted at hospital, where he put his signature. Regarding registration of case crime number, there is no cross-examination or contradiction. The same is on record, proved and exhibited as Exhibit Ka1. His son was got admitted at Swarooprani Hospital, Allahabad, where he remained for three days and died on the fourth day. Inquest proceeding was got conducted at hospital, where he put his signature. Regarding registration of case crime number, there is no cross-examination or contradiction. His cross-examination has been corroborated by testimony of PW9 S.I. Ram Kumar Yadav that while being posted as Constable Clerk at Police Station Puramufti, District Kaushambi, on 24.4.2005 he had registered case crime No. 74 of 2005 under section 307 I.P.C. against Kharedam upon written report of informant Arjun Lal, son of Ram Adhar, resident of Village Bihka @ Puramufti at 8.30 P.M. when informant had come at police station had submitted above report scribed by Dheerendra Kumar Shukla and signed by Arjun Lal. This Chick F.I.R. No. 26 of Case Crime No. 74 of 2005 under section 307 I.P.C. was prepared under his signature, which is on record, proved and exhibited as Exhibit Ka5. This registration of case crime number was entered in G.D. of police station at Entry no. 45 at 8.30 P.M. on 24.4.2005 by using a carbon in one and same process and same carbon copy of G.D. is on record, proved and exhibited as Exhibit Ka6. Regarding this registration of case crime number there is no contradiction in his examination in cross. 13. Injured was instantly taken for treatment to hospital where his medico legal examination followed by treatment was given, which has been proved by testimony of PW8 Dr. Rafat Jamal Siddiqui that while being posted as Plastic Surgeon at Swaroop Rani Hospital medico legal examination of Ram Sukh Kori aged about 24 years, son of Arjun Lal, resident of Puramufti was made by him on 24.4.2005 at 9.15 P.M. upon bringing of injured by Constable Vishnu Lal, C.P. 230 of Police Station Puramufti, district Kaushambi. The following injuries were found on the person of victim: i. Gunshot lacerated wound below right eye in an area 3 cm x 3 cm, tattooing and blackening present. Bleeding present. Margins were lacerated and inverted towards inner side and this injury was fresh of one hour. X-ray with occipital view and C.T. Scan of brain was advised. ii. The following injuries were found on the person of victim: i. Gunshot lacerated wound below right eye in an area 3 cm x 3 cm, tattooing and blackening present. Bleeding present. Margins were lacerated and inverted towards inner side and this injury was fresh of one hour. X-ray with occipital view and C.T. Scan of brain was advised. ii. Wound of cut over right temporal on right side behind ear in an area of 3 cm x 0.25 cm , bone deep with reddish margins and bleeding of fresh duration within one hour. iii. Lacerated wound 2 cm x 0.25 cm x scalp deep over right temporal part behind right ear having reddish corner and blood oozing with fresh duration within one hour. iv. Lacerated wound over right ear 1 cm x 0.25 cm x cartilage deep with red margin and bleed of fresh duration within one hour. Injury no. 1 was owing to firearm shot grievous and fresh. Injury nos. 2, 3 and 4 were of hard blunt and incised weapon with grievous nature. 14. Medico legal report was prepared under handwriting and signature of this witness, which is paper no. 8, proved and exhibited as Exhibit Ka4. In cross-examination a suggestive question was put that injury nos. 2, 3 and 4 may be cause by axe or spade. It was denied that they may be caused by knife and were of front side and may occur by one weapon in different assault on different angle. Weapon may be different. It may be caused by one or many person. There was no pellet from injury no. 1. Injury no. 1 may be assault by right side. Injuries nos. 2, 3 and 4 may be assaulted while standing. These were of in between 8 to 8.30 P.M. of that night and very close range assault. There is no dispute regarding his testimony or injuries over person of the injured. During course of treatment injured succumbed. 15. Offence u/s 307 I.P.C. was converted into offence of murder. As a result inquest was got conducted and this inquest proceeding has been proved by PW4 Ram Singh, who in his testimony has said that four years back Ram Sukh Kori, son of Arjun Lal was murdered. Inquest proceeding of his dead body was done in his presence at Swarooprani Hospital, Allahabad, which was having injury of firearm shot as well as incised wounds. Inquest proceeding of his dead body was done in his presence at Swarooprani Hospital, Allahabad, which was having injury of firearm shot as well as incised wounds. Dead body was sealed and inquest report (Ext. Ka2) was prepared on the spot over which witnesses have put their signatures and the same is on record as paper no. 13Ka/3. His statement has been further corroborated by PW5- Bhaee Lal, another witness of inquest, and has proved and exhibited as Exhibit Ka2. This has further been corroborated by the testimony of PW10-S.I. A. K. Singh that he received application informant regarding death of injured Ram Sukh Kori during course of treatment. This was entered in Parcha no. 6 of case diary on 1.5.2005 wherein the case was converted from case of attempt of murder to offence of murder. 16. This has further been corroborated by testimony of PW11 S.I. Surendra Singh that while being posted as Sub Inspector police station Kotwali, Allahabad, on 28.4.2005 had conducted inquest proceeding at 12.15 P.M. of deceased Ram Sukh Kori, son of Arjun Lal at Swarooprani Hospital in presence of informant and other witnesses. This death was under treatment and there were eight injuries written in the inquest report. This inquest report was prepared on the spot under his handwriting and signature, which has been proved and exhibited as Exhibit Ka2. The opinion of witnesses were death owing to above antemortem injuries but for getting autopsy examination requisite papers, specimen seal, letter to R.I., letter to C.M.O., photo dead body, police forms were got prepared under his handwriting and signature and exhibited as Exhibit Ka7 to Ka14. Thereafter sealed intact dead body along with those papers were handed over to Constable Surendra Kumar for carrying and getting the same examined under autopsy examination. There is no inconsistency in his testimony and disputed by defence. 17. PW6 Dr. Ajay Kumar Chaddha in his testimony has proved autopsy examination report (Ext. Ka3) by saying that while being on postmortem duty on 29.4.2005 at 4.00 P.M. he conducted autopsy examination on dead body of Ram Sukh Kori brought by Constable Surendra Kumar under sealed and intact position. Death was owing to antemortem injuries and was of 24 hours. PW6 Dr. Ajay Kumar Chaddha in his testimony has proved autopsy examination report (Ext. Ka3) by saying that while being on postmortem duty on 29.4.2005 at 4.00 P.M. he conducted autopsy examination on dead body of Ram Sukh Kori brought by Constable Surendra Kumar under sealed and intact position. Death was owing to antemortem injuries and was of 24 hours. Following antemortem injuries were found on the person of deceased: i. Firearm wound of entry 3 cm x 2 cm on right side of face below right lower rid adjacent to nasal bridge.. ii. Firearm wound of exit stitched wound on right skull behind right pinna 4 cm x 1 cm. iii. Wound in directed backward obliquely and literally. iv. Pinna stitched 5 cm x 2 cm . v. Big haematoma out side right parietal bone on right side. vi. Fracture right parietal bone and adjoining temporal bone above pinna. vii. Fracture base of skull and big haematoma present in right side skull. Cause of death was shock and hemorrhage as a result of gun shot head injury. 18. Postmortem examination report prepared under handwriting and signature of this witness (PW6) was proved and exhibited as Exhibit Ka3. In cross-examination this has further been reiterated that there were six antemortem injuries over person of deceased including firearm wound. No question was asked by learned counsel for defence regarding postmortem examination made by PW6 on dead body of deceased brought under intact sealed position by above constable on above date, time and place and preparation of Exhibit Ka3 under handwriting and signature of this witness and cause of death as determined by this witness due to antemortem injuries. This testimony is unrebutted by defence. Hence, is wholly reliable. 19. PW7 Gulab Singh is a formal witness of inquest proceeding and preparation of inquest report in his presence at the time of inquest proceeding marked as Exhibit Ka2. Though, no substantial cross-examination of this witness was made by learned counsel for defence, whereas the Court itself has cross-examined PW7 in which he has proved his presence and corroborated his examination in chief. There is no inconsistency or exaggeration and he is a wholly reliable witness. 20. Though, no substantial cross-examination of this witness was made by learned counsel for defence, whereas the Court itself has cross-examined PW7 in which he has proved his presence and corroborated his examination in chief. There is no inconsistency or exaggeration and he is a wholly reliable witness. 20. PW10 Investigating Officer A. K. Singh in his testimony has proved investigation made by him in Case Crime No. 74 of 2005 in which taking of blood stained and plain soil from place of occurrence witnessed by Dashrath Lal and Mangal Das, preparation of recovery memo of the same, recording of their statements in case diary and this memo being Exhibit Ka4; preparation of spot map on the basis of spot position upon pointing out of informant and the same being under his handwriting and signature has been proved as Exhibit Ka5. Those two soil samples have been proved as material exhibit 1 and material exhibit 2. He intended to record statement of injured but because of his seriousness and impossibility to record his statement, the same could not be recorded. Copies of inquest report and autopsy examination report were entered in case diary and inspite of all efforts accused could not be apprehended even after proclamation and attachment under sections 82 and 83 Cr.P.C. Then charge sheet against accused under his handwriting and signature was filed and proved as Exhibit Ka6 on record. 21. A perusal of inquest report (Ext. Ka2), autopsy examination report (Ext. Ka3), oral testimonies of PW11, PW6 and PW1 alongwith admission of murder by accused to be by someone else, because of love affairs, it was fully established that this was not a natural death. Rather, it was a death by inflicting firearm wound and of other mentioned wounds by sharp edged weapon and hard and blunt object i.e. culpable homicide amounting to murder punishable u/s 302 I.P.C. 22. Rather, it was a death by inflicting firearm wound and of other mentioned wounds by sharp edged weapon and hard and blunt object i.e. culpable homicide amounting to murder punishable u/s 302 I.P.C. 22. Admittedly, there is no eyewitness account except informant PW1, who in his testimony has categorically stated that: ^^?kVuk ds le; eSa njokts ij ekStwn FkkA Qk;j dh vkokt lqurs gh eSa vius csVs dh rjQ nkSMk rks ns[kk fd f'koHktu] esjs yMds dks pkdw ekj jgk FkkA^^ “At the time of occurrence I was at my door and after hearing sound of firearm shot I rushed towards my son and found Shivbhajan giving knife blow over his person.” (English translation by Court) In cross-examination he has said that eSa tc vius ?kj ls bekeckMk dh vksj nkSMk rks lkeus bekeckMk gSA bekeckMk ls eSaus ?kVuk dks ns[kk FkkA esjs lkFk vkSj dksbZ ugha Fkk dsoy eSa gh FkkA ?kVuk ds ckn lHkh yksx igqap x;s gSaA esjk yMdk fxjk iMk FkkA ?kVuk ?kVus ds 15 feuV ckn lc yksx igqaps pkjikbZ ij ykndj yMds dks Fkkus ys x;sA “At the time of occurrence I ran from my home towards Imambada, which is in front of my house. I witnessed the occurrence from Imambada. None else was with me. I was alone. Others had rushed on the spot after occurrence. Occurrence was seen by me alone. None else had seen the occurrence. My son had fallen on ground. After 15 minutes of occurrence others rushed and brought the injured on a cot at police station.” (English translation by Court) 23. Meaning thereby it was only and only informant, who saw the occurrence and that too after giving firearm shot and witnessed knife blow caused by accused over deceased. Other persons reached on the spot after fifteen minutes of the occurrence, whereas in written report (Ext. Ka1) they have been said to be eyewitness account. This testimony is having corroboration with testimony of PW2, who is real brother of informant and he had stated that he did not witness the occurrence because he was not present on spot at that time but this was a occurrence of giving firearm shot over his nephew Ram Sukh Kori. Ka1) they have been said to be eyewitness account. This testimony is having corroboration with testimony of PW2, who is real brother of informant and he had stated that he did not witness the occurrence because he was not present on spot at that time but this was a occurrence of giving firearm shot over his nephew Ram Sukh Kori. He said as under: ^^jkr ds vkB cts dk le; FkkA eSa dke ij ls ykSV jgk FkkA jkLrs esa tc ?kVuk LFky ls ,d QykZax dh nwjh ls igqapk rks ns[kk fd esjs Hkrhts jke lq[k dksjh dks eqgYys ds yksx mBkdj ys tk jgs gSA eqgYys ds yksxksa us crk;k fd jkelq[k dks xksyh yx x;h gSA bykt ds fy, ys tk jgs gSaA eSaus e`rd jkelq[k dks xksyh ekjrs fdlh dks ugha ns[kk FkkA ?kVuk ds le; eSa ekSds ij ugha FkkA^^ “At about 8.00 in the night I was my way back to home from job and when was at a distance of one furlong I saw that my nephew Ram Sukh was being taken by Mohalla persons, who apprised him that Ram Sukh had sustained firearm injury and was being taken for treatment. I have never seen this occurrence of giving firearm shot because I was not present on the spot.” (English translation by Court) 24. This witness has been declared hostile on the request of prosecution and permitted for cross-examination in which he resiled from his previous statements. Even he is not aware of Shiv Bhajan alias Kharedam. 25. PW3 alleged another eyewitness account Mangal Das has stated on oath that he is not aware of giving firearm shot by accused Kharedam. He stated as under: fnukad 24-4-2005 dks e`rd jkelq[k dks vfHk;qDr [kMsne }kjk xksyh ekjdj gR;k djus dh tkudkjh eq>dks ugha FkhA ?kVuk okys fnu eSa dkSaf/k;kjk Fkkuk {ks= tuin bykgkckn esa x;k FkkA mlh fnu jkr eas 11 cts ykSV dj okil vius ?kj vk;k FkkA rks ?kj okyksa ls irk pyk fd jkelq[k dh gR;k gks xbZ gSA ;g ugha irk fdlds }kjk gR;k dh xbZ FkhA “I am not aware that accused Kharedam had murdered Ram Sukh by giving a firearm shot on 24.4.2005. I was not present at home on the day of occurrence, rather I was in the area of police station Kaundhiyara, district Allahabad, on the day occurrence and when came back to home at 11.00 P.M. family members apprised him about murder of Ramsukh. He was not aware as to who had committed the murder.” (English translation by Court) 26. Though he by his testimony proved taking of plain and blood stained soil from the spot and preparation of recovery memo of the same. Meaning thereby none other than PW1-informant is a witness for implicating convict appellant in this offence. 27. Instantly lodged chick F.I.R. (Ext. Ka5) and written report (Ext. Ka1) gives names of Kharedam for giving firearm shot over deceased Ramsukh Kori. Kharedam is said to be son of Late Munni Lal Pasi, resident of Shahanpur Peepal Gaon, Police Station Dhoomanganj, District Allahabad, residing since sometime at the house of his maternal grandfather Dashrath, son of Late Dwarika Prasad, resident of Village Bihka alias Puramufti. No alias name of Kharedam as Ram Bhajan or Shiv Bhajan has been written in this first information report. When examined under section 161 Cr.P.C. this was added with alias Shiv Bhajan. When examined before Trial Court this was said that Shiv Bhajan alias Kharedam and deceased Ramsukh was present near graveyard and were under conversation when suddenly Kharedam alias Shiv Bhajan gave firearm shot over Ramsukh resulting injury over his temporal region and when he fell down, he was further assaulted by knife and accused ran towards western side of graveyard. This was witnessed by this witness-PW1 alone. Other persons, who have been said to eyewitness account in report, were said to be present on spot after fleeing of the accused from the scene. In cross-examination PW1 has stated that he was present at his door and heard loud voice is Shiv Bhajan @ Kharedam with his son near graveyard and he went at the time of this conversation. He was all alone and found that a firearm shot was given to Ramsukh before his reaching at above spot i.e. who had given firearm shot was not seen by this witness. Though this assault of firearm is said to have been given by Shivbhajan and no alias either Ram Bhajan or Kharedam has been said. He was all alone and found that a firearm shot was given to Ramsukh before his reaching at above spot i.e. who had given firearm shot was not seen by this witness. Though this assault of firearm is said to have been given by Shivbhajan and no alias either Ram Bhajan or Kharedam has been said. This occurrence is said to have been witnesses from 10-12 steps, but this has been admitted to be night and there was no torch in his hand. Though, source of light has been given to be electric bulb on electric pole on the spot but no electric pole or electric bulb has been shown in the site plan by Investigating Officer nor house of informant from where he rushed on spot has been shown in the site map (Ext. Ka5). Rather place 'B' has been said from where witness PW1 had seen the occurrence. But there is no house of informant shown in site map (Ext. Ka5). 28. Regarding identity of Kharedam PW1 has said that he had never met Kharedam prior to this occurrence. ^^f'koHktu dk ufugky esjs xkao esa gSA blfy, og vkrk tkrk Fkk fdrus fnu ls vkrk tkrk gS eSa ugh crk ldrk gwWA ?kVuk ds igys f'koHktu ls esjh dksbZ eqykdkr ugha gqbZA blfy, eSa ugh tkurkA^^ “Shivbhajan is having his maternal grandfather's house in my village, that is why he used to visit his village. This cannot be said that from how many days he used to visit. There was no meeting with Shivbhajan prior to this occurrence. Hence this informant was not aware about this fact.” (English translation by Court) In subsequent line he has replied: ^^rgjhj eSaus eqfYte dks ns[kk FkkA mlds igys eqfYte dks ugha tkurkA^^ “I had seen accused. Prior to it I was not aware of accused.” (English translation by Court) 29. Meaning thereby this informant was unaware of accused. How he could identify that he is Kharedam or his alias name is Ram Bhajan or Shiv Bhajan could not be explained by PW1. Though, he has said that his maternal grandfather Dashrath was of his village and this has been written in instantly lodge first information report and chick first information report (Ext. Ka1 and Ext. How he could identify that he is Kharedam or his alias name is Ram Bhajan or Shiv Bhajan could not be explained by PW1. Though, he has said that his maternal grandfather Dashrath was of his village and this has been written in instantly lodge first information report and chick first information report (Ext. Ka1 and Ext. Ka5, respectively) that Kharedam was residing at the home of Dashrath son of Late Dwarika of village Bihka @ Puramufti because he was his maternal grandfather, but when asked in cross-examination as to how could recognize Kharedam against whom report was lodged, he said that he had never met accused, hence, not aware of his relations or alias. When asked about name of Dashrath and his parentage this witness replied: ^^n'kjFk esjs xkao dk gS buds firk dk uke JhukFk gksxk eSa ugha tkurkA iku dk nqdku yxkrs gSaA^^ “Dashrath is of my village. His father's name may be Shreenath, I am not aware. He used to have betel shop.” (English translation by Court) 30. Whereas name of Dashrath with his parentage as Dwarika Prasad has been written in the report (Ext. Ka1). Thus, parentage is doubtful. Meaning thereby he was not perfectly aware of parentage of Dashrath or Kharedam. Whereas the accused in his statement u/s 313 Cr.P.C. has specifically said that his name is Ram Bhajan with no alias name of Shiv Bhajan or Kharedam and for this there is no evidence on record, nor the Investigating Officer has investigated as to whether the accused is Kharedam or Ram Bhajan or Shiv Bhajan and who is maternal grandfather and what was his occasion to be at above village at above time and place or what was his motive for his occurrence or what was circumstantial evidence of proving fact of firearm shot over deceased, which was the main fatal injury. Admittedly, the deceased having such grievous injury, he was taken to hospital, where he remained hospitalized for four days and succumbed to above injury. Inspite of time the Investigation Officer could not record his statement because of his serious condition and he has not give any statement or dying declaration or any clue as to who had given this injury and under what circumstances. Hence, the very identity of Kharedam, against whom the first information report (Ext. Inspite of time the Investigation Officer could not record his statement because of his serious condition and he has not give any statement or dying declaration or any clue as to who had given this injury and under what circumstances. Hence, the very identity of Kharedam, against whom the first information report (Ext. Ka1) was lodged or his alias name as Ram Bhajan or Shiv Bhajan could not be established beyond reasonable doubt. 31. This has been said by informant-PW1 in his testimony that his son was given firearm shot and antemortem injuries in love affairs i.e. deceased himself was under love affair but who was counter part of this affair has not been said by informant. Hence, from overall appreciation of these evidence placed on record, it was fully proved that deceased Ramsukh Kori was murdered by firearm shot coupled with assault of incised wounds at above date, time and place. He received fatal injury. He was instantly brought to police station, instant report was got lodged, he was hospitalized upon police pretext, he remained under treatment and succumbed to above antemortem injuries but this assault was by Kharedam or Kharedam @ Ram Bhajan @ Shiv Bhajan, whose maternal grandfather was Dashrath or his parentage was Dwarika Prasad or his parentage was Shreenath could not be proved beyond reasonable doubt. Hence, charge leveled against convict appellant as well as identity of convict appellant could not be proved beyond reasonable doubt for which this appeal merits its allowance. 32. In view of the above discussions, the impugned judgment of the trial court is liable to be set aside and the appellant deserves to be acquitted from the charges leveled against him. 33. Accordingly, this appeal succeeds and is allowed. The impugned judgment and order of conviction dated 28.3.2011 passed by the Trial Court is hereby set aside and the appellant is acquitted of all the charges. The appellant is in jail. He shall be released forthwith, if not wanted in any other case. 34. Keeping in view the provisions of section 437-A Cr.P.C. appellant is directed to forthwith furnish a personal bond in the sum of Rs. The appellant is in jail. He shall be released forthwith, if not wanted in any other case. 34. Keeping in view the provisions of section 437-A Cr.P.C. appellant is directed to forthwith furnish a personal bond in the sum of Rs. One Lakh and two reliable sureties each in the like amount before the Trial Court, which shall be effective for a period of six months, along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the appellant on receipt of notice thereof shall appear before the Hon'ble Supreme Court. 35. Let a copy of this judgment along with lower court's record be sent back to the court concerned for immediate compliance. 36. Before parting, we find it appropriate to place on record our commendation to learned counsel, who has argued this appeal as Amicus Curiae with ability and actually assisted the Court effectively. We provide that he shall be paid counsel's fee as Rs. 11,000/-. State Government is directed to ensure payment of aforesaid fee through Additional Legal Remembrancer posted in the office of Advocate General at Allahabad, to Sri Pawan Singh Pundir, Amicus Curiae, without any delay and, in any case, within 15 days from the date of receipt of copy of this judgment.