JUDGMENT : Harsh Kumar, J. 1. The instant appeal has been filed against the judgment and order of conviction and sentence dated 18.11.2010 passed by Additional Sessions Judge, Court No.8, Fatehpur in S.T. No.192 of 2010 “State Vs. Sunil Singh and another” under Sections 302/34 & 201 I.P.C., Case Crime No.10 of 2010 and S.T. No.193 of 2010 “State Vs. Sunil Singh” under Section 25 of Arms Act, Case Crime No.11 of 2010, both P.S. Asother, District Fatehpur, convicting two accused persons for offences under Sections 302/34 and 201 I.P.C. and sentencing each of them with imprisonment for life and fine of Rs.10,000/- and in case of default in payment of fine with simple imprisonment for an additional period of one year, under Sections 302/34 I.P.C. and with rigorous imprisonment for a period of five years and fine of Rs.2000/-and in case of default in payment of fine with simple imprisonment for an additional period of three months under Section 201 I.P.C. Apart from it, accused-appellant Sunil Singh was also convicted and sentenced with rigorous imprisonment for a period of three years and fine of Rs.2000/-and in case of default in payment of fine with simple imprisonment for an additional period of three months for offence under Section 25 of Arms Act. 2. Feeling aggrieved, both the convicts preferred instant appeal for setting aside their conviction and passing an order of their acquittal. 3. 2. Feeling aggrieved, both the convicts preferred instant appeal for setting aside their conviction and passing an order of their acquittal. 3. The brief facts relating to the case are that Shiv Shankar @ Jhaller lodged F.I.R. at P.S. Asother District Fatehpur on 22.1.2010 at 7:30 a.m. with the averments that “his 38 years old son Santosh Kumar Pandey, who was working as Munshi on private buses of Qasba Asother alongwith Bachcha Singh was falsely implicated by Sunil Singh (accused) in the case of murder of his sister Leelawati, in which case he (Santosh) was acquitted and Sunil Singh in order to take revenge for murder of his sister was having grudge/enmity with Santosh Kumar; that on 20.1.2010, Sunil with his associate Deepak provided liquor to his son in the evening the fetched him and at about 8:00 p.m., (opposite Nahar Kothi, Asother in North of road, on the chack road in front of fields of Chhatrapal Singh) they caused his death by shooting in his head by pistols and in order to make disappearance of his dead body, dragged and thrown it in Ganga canal; that the incident was seen by Baba Singh, Vimal Singh and several others; that shoes and scarf of his son were found in the mustard fields of Chhatrapal Singh and his dead body, which could not be recovered on 21.1.2010, due to excess water in canal, has been found today (with multiple injuries on his head) in canal opposite the fields of Chhatrapal Singh, when water receded”. 4. Upon lodging of F.I.R., investigation started and after preparing memo of recovery of empty cartridges, the shoes and scarf of deceased, bloodstained and plane earth, inquest report etc., body of deceased was sent for post-mortem. During investigation, the weapon of crime, country made pistol was recovered from accused Sunil @ Lambari on 25.1.2010 of which memo was prepared F.I.R. was lodged against him under Section 25 of Arms Act. After obtaining the autopsy report and reports of Vidhi Vigyan Prayogshala, completing the investigation and obtaining prosecution sanction, respective investigating officers submitted charge-sheet in Case Crime No.10 of 2010 under Sections 302/34 & 201 I.P.C. against two accused appellants and in Case Crime No.11 of 2010 under Section 25 of Arms Act against accused-appellant Sunil Singh. After obtaining the autopsy report and reports of Vidhi Vigyan Prayogshala, completing the investigation and obtaining prosecution sanction, respective investigating officers submitted charge-sheet in Case Crime No.10 of 2010 under Sections 302/34 & 201 I.P.C. against two accused appellants and in Case Crime No.11 of 2010 under Section 25 of Arms Act against accused-appellant Sunil Singh. The cases were committed to sessions, where charges were framed against both the appellants under Section 302/34 & 201 I.P.C. and against Sunil Singh also under Section 25 Arms Act to which they denied and demanded trial. 5. In joint trial of two cases, prosecution produced as many as nine witnesses viz. Shiv Shanker @ Jhaller, the first informant and father of deceased as P.W.-1, Baba Singh and Vimal Singh, the eye witnesses as P.W.-2 & P.W.-3, Constable Kamal Singh and Head Moharrir Balram formal witnesses to prove chick F.I.R. of two crime cases as P.W.-4 & P.W.-5, Rajiv Verma, Investigating Officer of Case Crime No.10 of 2010, under Sections 302/34 & 201 I.P.C. as P.W.-6, Geetam Singh, S.I. to prove recovery of country made pistol from Sunil as P.W.-7, Balister Singh Investigating Officer of Case Crime No.11 of 2010, under Section 25 of Arms Act as P.W.-8 and Dr. Shiv Shankar, the autopsy surgeon as P.W.-9. 6. Above witnesses of fact as well as formal witnesses proved the prosecution case and documentary evidence as well as prosecution sanction etc. on record, which were marked as Ex.A1 to Ex.A21. 7. After completion of prosecution evidence, statements of accused Sunil Singh and Deepak Kewat were recorded under Section 313 Cr.P.C. and despite affording opportunity, any of them did not produce any oral or documentary evidence in defence. 8. Heard Shri Shiv Nath Singh, Senior Advocate, assisted by Shri Akhilesh Kumar learned counsel for appellant no.1 Sri Sunil Singh, Shri Kamal Krishna, Senior Advocate, assisted by Shri Pradeep Kumar Rai learned counsel for appellant no.2 Deepak Kewat, Shri Rajesh Kumar Mishra brief holder & Shri Mool Chand Singh, learned A.G.A. for State and perused the record. 9. 8. Heard Shri Shiv Nath Singh, Senior Advocate, assisted by Shri Akhilesh Kumar learned counsel for appellant no.1 Sri Sunil Singh, Shri Kamal Krishna, Senior Advocate, assisted by Shri Pradeep Kumar Rai learned counsel for appellant no.2 Deepak Kewat, Shri Rajesh Kumar Mishra brief holder & Shri Mool Chand Singh, learned A.G.A. for State and perused the record. 9. Learned counsel for appellants contended that appellants have been falsely implicated for murder of Santosh; that admittedly first informant is not eye witness of the incident; that admittedly Baba and Vimal P.W.-2 and P.W.-3, were friends of deceased, who have been falsely planted as eye witnesses of the incident; that this is a case of blind murder under darkness of night and since the assailants could not be seen or identified, the appellants have been falsely implicated on account of old enmity; that deceased Santosh was an accused in the case of murder of Smt. Leelawati, (sister of appellant Sunil Singh) and had been acquitted of the charges of murder under Section 302 I.P.C. by giving him benefit of doubt; that on account of undeserved victory in murder case of Leelawati, deceased Santosh and his father, first informant were having grudge against appellant Sunil Singh; that deceased Santosh was working as a Munshi ¼eqa'kh½ over private buses of Qasba Asother for which he used to do daily up and down from Naraini to Asother and since he used to recover excessive charges from various bus operators and other persons, so was on inimical terms with several persons and appears to have been eliminated by any of them in darkness of night; that since the unknown assailants could not be seen or identified, the father of deceased on account of suspicion and old enmity, has falsely implicated appellants with absolutely false and concocted story; that admittedly there was no source of light on the place of occurrence except alleged moon light; that neither appellants fetched deceased nor provided him liquor or eggs nor caused his death nor made disappearance of his dead body by throwing it in Ganga Canal or otherwise; that appellants had no motive to cause death of deceased; that since the relations between deceased and appellants were not only strained (on account of litigation with regard to murder case of appellant’s sister Leelawati), rather were inimical against each other, the question of fetching of deceased (a matured man) by appellants or going of deceased with them is highly improbable; that P.W.-2 and P.W.-3, having admitted friendship with deceased, were partisan witnesses and their interested testimony without corroboration by any evidence of independent witness, was not reliable; that it is admitted to P.W.-2 and P.W.-3 that they had puccca latrines in their houses, which belies their false story of going to attend call of nature in fields in chilly cold night of 20.01.2010 at about 8:00 p.m.; that the prosecution witnesses have alleged to have seen incident and identified culprits in moon light which is absolutely wrong and incorrect and is highly improbable; that on 20.01.2010 it was Basant Panchami night (as has also been discussed by trial Court) and 15.01.2010 was no moon day i.e., ¼vekoL;k½ ; that after ¼vekoL;k½ the 1st day moon of Parwa is invisible, of Dooj is visible only for a short moment (like Eid–Ka-Chand) and so on, duration of visibility of moon increases gradually; that upto 5th day of new moon, when moon gets increased upto 1/3rd in size there remains very dim moon light which may not be sufficient to identify the culprits from a distance of 20-25 metres or 30-40 metres as respectively stated by P.W.-2 and P.W.-3 or from a distance of 45 steps (nearly 34 meters) as shown in site plan, Ext. A-6, particularly due to heavy and dense fog all over the open area near canal in chilly cold night; that had P.W.-2 or P.W.-3 seen alleged incident of murder of Santosh by appellants, in natural course they would have immediately informed the father of deceased but their conduct in not doing so is quite unnatural and falsifies their contention of being eye witnesses of the incident as well as of identifying the real culprits from a long distance; that there are material contradictions in the statements of P.W.-2 and P.W.-3, as at one place they state of having informed the father of deceased by phone call on next morning, contrary to which in same breath at other place they state that next morning when his father arrived, they narrated him the entire story; that as per F.I.R. incident was seen by Baba Singh, Vimal Singh & several others but prosecution failed to produce any independent witness; that prosecution failed to corroborate the interested testimony of P.W.-2 and P.W.-3 by producing any independent witness; that the learned trial Court acted wrongly in relying on the untruthful and uncorroborated testimony of partisan witnesses P.W.-2 and P.W.-3; that F.I.R. of the incident has been lodged after inordinate delay of around three days; that in fact the F.I.R. is anti timed and prosecution case is liable to be disbelieved. 10. 10. Learned counsel for appellants further contended that recovery of country made pistol from appellant Sunil Singh has been falsely planted; that nothing has been recovered from appellant Deepak Kewat; that motive to cause death has been assigned to only Sunil Singh and appellant Deepak Kewat had no motive to cause death of Santosh; that it is wrong to say that appellant Deepak Kewat was an associate of appellant Sunil Singh; that there is no link evidence on record to show that empty cartridges allegedly recovered from spot and fire arm allegedly recovered from appellant Sunil Singh on 25.1.2010, were neither kept intact in sealed cover, before sending them to forensic lab nor were sent without any delay, to rule out any possibility of tampering; that delay in lodging of F.I.R. quite often results in embellishment, which is creature of an afterthought; that on account of delay in lodging of F.I.R., it gets bereft of the advantage of spontaneity and danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation; that prosecution has failed to explain inordinate delay in lodging of F.I.R. and in view of law laid down by Apex Court in the case of "Thulia Kali Vs. State of Tamilnadu AIR 1973 SC 501 ", the prosecution case is liable to be disbelieved; that learned trial Court acted wrongly and illegally in misreading the evidence on record as well as relying on the contradictory, false, interested and uncorroborated testimony of P.W.-2 and P.W.-3, who falsely claimed themselves to be eye witnesses of incident; that before the occurrence of murder, the deceased was allegedly provided with egg and liquor by appellants, but post mortem report of deceased does not corroborate or suggest about finding of any liquor upon his internal examination; that post mortem of the body of deceased was conducted on 22.1.2010 at about 3:00 p.m. and the autopsy surgeon P.W.-9 has stated that death of 38 years old person had taken place about 2 days back. 11. 11. He further contended that there was no blackening, tattooing or scorching over the gun shot wounds, which belies the prosecution story of firing on deceased by appellants from close range; that as per prosecution case, the body of deceased was thrown in canal from where it was recovered after a period of around 2 days, but there were no sign of decomposition of body, which also creates suspicion over the time and manner of occurrence in question; that as per medical jurisprudence, the dead body, if remains under water for a period of over one day, the decomposition of body is bound to start; that prosecution has failed to prove the charges against appellants beyond reasonable doubts, by any reliable, cogent and independent evidence; that the appellants have been wrongly convicted and sentenced; that the possibility of Santosh having been murdered by some one else in darkness of chilly cold and foggy night, (who could not be seen and identified) may not be ruled out; that suspicion howsoever strong it may be, may not take place of proof; that appellants have been falsely implicated due to enmity and suspicion; that in view of material contradictions in prosecution evidence the appellants are entitled for benefit of doubt; that the appeal is liable to be allowed and setting aside impugned order of conviction and sentence, appellants are entitled to an order of acquittal. 12. 12. Per contra, Shri Rajesh Kumar Mishra, brief holder & Shri Mool Chand Singh learned A.G.A. for State supporting the impugned judgment and order of conviction contended that no inordinate delay has been caused in lodging of F.I.R; that P.W.-1 has stated that on getting knowledge of incident, he reported the matter at police station orally, but his report was not lodged by police until recovery of body; that clothes and shoes of deceased as well as empty cartridges have been recovered from near the place of occurrence; that weapon of crime, the country made pistol has also been recovered from appellant Sunil and it is wrong to say that recovery was falsely planted; that clothes of deceased were sent to Vidhi Vigyan Prayogshala over which human blood was found; that the fire arm recovered from appellant Sunil was also sent to forensic lab, of which report is on record which suggests its use in commission of crime in question; that it is wrong to say that link evidence is missing or there is any possibility of tampering with empty cartridges or the fire arm recovered from appellant Sunil; that prosecution case is fully proved from consistent statements of eye witnesses P.W.-2 and P.W.-3; that it is wrong to say that the case is based on circumstantial evidence and assailants could not be seen or identified in darkness of night or P.W.-2 and P.W.-3 have been falsely planted as eye witnesses of occurrence; that learned trial Court has correctly analyzed the prosecution evidence on record in detail and has come to correct conclusion; that there was no reason for falsely implicating appellants and sparing real culprits; that appeal has been filed with absolutely false and baseless allegations and is liable to be dismissed. 13. Upon hearing parties counsel and perusal of record we find that first informant do not claim himself to be eye witness of occurrence, F.I.R. states that occurrence was seen by P.W.-2, P.W.-3 and several others, however, there is no whisper in F.I.R. about providing of any information to first informant by P.W.-2, P.W.-3 or any other eyewitness. According to prosecution, on 20.1.2010, appellants had taken deceased from Asother, provided him eggs and liquor and after fetching him to Nahar Kothi Asother, in front of fields of Chhatrapal, both of them shot him in head at about 8:00 p.m. resulting in his death. According to prosecution, on 20.1.2010, appellants had taken deceased from Asother, provided him eggs and liquor and after fetching him to Nahar Kothi Asother, in front of fields of Chhatrapal, both of them shot him in head at about 8:00 p.m. resulting in his death. Deceased is not alleged to have been fetched by appellants from his home rather was allegedly fetched from Asother. There is no evidence of any witness regarding alleged fetching, as to who would have seen the deceased being fetched by appellants or any of them. Prosecution witnesses Baba Singh P.W.-2 and Vimal Singh P.W.-3 are not witnesses of fetching of deceased by appellants or of providing him eggs and liquor by them and have not made any whisper in this respect. First informant Shiv Shankar, the father of deceased has neither made any whisper in F.I.R. nor in his statement on oath as P.W.-1, about the source of information about fetching of deceased by appellants and of providing him eggs and liquor by them, nor has produced any witness about alleged fetching of deceased by appellants or of providing him of eggs and liquor by them. It shows that the allegations about fetching of deceased by appellants are totally imaginary part of prosecution story in F.I.R. which may not be relied in absence of any iota of evidence, even of eggs or liquor vendor. 14. As per prosecution case, Smt. Leelawati, the sister of appellant Sunil Singh was murdered, for which Bachcha Singh (husband of Leelawati) and deceased Santosh were tried together and were acquitted on account of which appellant Sunil @ Lambri was keeping enmity against deceased, which is quite natural and acceptable. Deceased Santosh was not an immature minor boy rather was a 38 years old matured and prudent person and on account of enmity following his prosecution for murder of sister of appellant Sunil, there can be no possibility of his going with his enemy Sunil appellant under any imagination or circumstances. 15. Deceased Santosh was not an immature minor boy rather was a 38 years old matured and prudent person and on account of enmity following his prosecution for murder of sister of appellant Sunil, there can be no possibility of his going with his enemy Sunil appellant under any imagination or circumstances. 15. Prosecution witnesses Baba Singh P.W.-2 and Vimal Singh P.W.-3, the alleged eye witnesses of the incident have stated that in the night of 20.1.2010 at about 8:00 p.m., both of them were going to attend the call of nature towards Nahar Kothi Asother and seen appellants Sunil and Deepak taking Santosh to the Chak-road of field of Chhatrapal where they started beating him and upon raising alarm, by him shot him in head with their pistols and dragged his body to canal. Both the witnesses on hearing alarm, have stated to have not reached for rescue of their friend (deceased) rather stated that when accused dragged body of deceased they fled away. P.W.-2 and P.W.-3 have alleged to seen the occurrence at the time of going to attend call of nature and there is no whisper that if at all they defalcated or not under open sky, for which they had come out in chilly cold night. Absence of any specific statement of defalcation before or after occurrence also makes their presence doubtful. 16. Above witnesses P.W.-2 and P.W.-3 have admitted of having pucca latrines at their houses. In the month of peak winters, January on chilly cold night of occurrence in question around 8:00 p.m. on 20.1.2010, it is highly improbable that two persons having pucca latrines in their houses, would ever go outside to defalcate during chilly cold night. P.W.-2 has stated that in the month of January in chilly cold days sun used to set around 5:30 p.m. and place of occurrence is near Canal. In his statement on oath at page 40 of paper book he has stated to have seen the occurrence in moon light from a distance of 20-25 metres, while at page 43 of paper book P.W.-3 Vimal Singh has stated to have seen the accused persons from a distance of 35-40 metres, which is in material contradiction with each other. Both P.W.-2 and P.W.-3 have admitted in their cross examination that deceased Santosh was their fast friend. 17. Both P.W.-2 and P.W.-3 have admitted in their cross examination that deceased Santosh was their fast friend. 17. Though 10 years back villagers were habitual of defalcating under open sky, but only for want of facility of pucca latrines at their houses. It is highly improbable that persons having facility of pucca latrine in their houses, would ever go out for defalcating, around 8.00 p.m. in chilly cold night of 20.01.2010. P.W.-2 has also stated that some times he uses the pucca latrine of his house. The interested and sold testimony of P.W.-2 and P.W.-3 about there going out for defalcating in chilly cold night of 20.1.2010, may not be believed in absence of any corroborative evidence. 18. Before proceeding further we find it expedient in the interest of justice to discuss following universal truths which relate to nature and cosmos, such as (i) sun rises in the East and sets in the West (ii) Moon gradually increases from no moon ¼vekoL;k½ to new moon and so on goes upto full moon ¼iwf.kZek½ , then gradually decreases back to no moon ¼vekoL;k½ . The cycle from no moon to full moon takes 15 days to complete and after full moon to no moon in next 15 days. The completion of cycle from no moon ¼vekoL;k½ to full moon ¼iwf.kZek½ and again from full moon ¼iwf.kZek½ to no moon ¼vekoL;k½ takes a total period of 30 days, which constitutes one month as per Hindi calendar. 19. After no moon ¼vekoL;k½ as the size of moon increases day by day, the moon light and its brightness also increases gradually and on night of full moon ¼iwf.kZek½ , the bright full moon light ‘Chandni’ may be seen all over. Similarly as the size of moon decreases day by day from full moon ¼iwf.kZek½ to no moon ¼vekoL;k½ the moon light ‘Chandni’ and its brightness also decreases gradually and comes to zero on no moon ¼vekoL;k½ night. Similarly as the size of moon decreases day by day from full moon ¼iwf.kZek½ to no moon ¼vekoL;k½ the moon light ‘Chandni’ and its brightness also decreases gradually and comes to zero on no moon ¼vekoL;k½ night. Between the 15 days period from 7-8th day from no moon ¼vekoL;k½ when moon gets increased upto half and onwards upto 7 -8th day from full moon ¼iwf.kZek½ when the moon gets decreased upto half there remains enough moon light all over (though not for as long and bright as on full moon ¼iwf.kZek½ night) during period of rest 15 days from 7th -8th day from iwf.kZek upto 7th -8th day from vekoL;k , there remains very dim moon light, that too for shorter periods and rest of the nights happen to be dark nights or Andheri Raat. 20. It is also universal truth that during 15 days period from No Moon ¼vekoL;k½ to Full moon ¼iwf.kZek½ , moon remains in sky since before sun set and can be seen just after sun set and the time of moon set, gradually gets later in night. On the contrary during the 15 days period from full moon ¼iwf.kZek½ to no moon ¼vekoL;k½ , the size of moon not only decreases but it also rises gradually late in night and may be seen during early day hours even after sun rise. It may be better noticed from the fact that after 2 days from no moon ¼vekoL;k½ , the increasing moon of “Dooj Ka Chaand/Eid Ka Chaand” is seen like a thin line for a very short moment just after sun set, while to the contrary, just after 4 days from full moon ¼iwf.kZek½ the decreasing moon of 4th day 2/3rd in size “Karvachauth Ka Chaand” can not be seen before 8:30 to 9:00 p.m. or around it and it lasts up-till morning. It is also pertinent to mention that brightness of moonlight also increases and decreases gradually with the size of moon. 21. It is also pertinent that about 10 years back peak winter season used to be longer from now and on account of various climate changes due to global warming etc. in recent years, 8 months of the year are dominated by summer season (including rainy season which has shrinked to 2 months) and less than 4 months of the year pertains to winter season. in recent years, 8 months of the year are dominated by summer season (including rainy season which has shrinked to 2 months) and less than 4 months of the year pertains to winter season. The months of winter season are known as November, December, January and February according to English Calendar out of which a period of almost 2 ½ months, full of November, first 3/4th of December and later 3/4th of February, are usually period of very light and pleasant winters and rest period of 1 ½ months from last week of December till end of first week of February (Hindi Calendar months of Paush and Magh ) usually happens to be period of peak winters or chilly cold days with cold waves. During chilly cold days usually either (i) there remains dense fog with cold waves all over Northern India including State of Uttar Pradesh since evening upto 8.00 – 9.00 a.m. (until sun shines bright) and fog adversely affects visibility particularly over open areas fields and areas near hills, canal, river and other water bodies, or (ii) weather becomes cloudy which decreases fog but clouds put a curtain over sky and dim moon light, further decreases and adversely affects visibility. During chilly cold nights, persons of villages usually cover their heads and ears to protect themselves from cold and even if the culprits were not to hide their identity the possibility of covering of heads and ears, by them may not be ruled out. 22. On fateful chilly cold night of occurrence in question at 8.00 p.m. on 20th January, 2010, it was Basant Panchami night which falls on 5th day from no moon ¼vekoL;k½ , when moon gets increased upto 1/3rd in size with very dim moon light for a short period. In such times usually either dense fog engulfs open areas fields etc, particularly near water bodies viz., rivers or canals etc., since evening after sun set and stays throughout nights upto late in morning or clouds cover the sky putting curtain over moon. The place of occurrence in question is open field near canal and so at the time of occurrence around 8:00 p.m. there would have been low visibility of heavy fog in dim moon light 5 of day old moon in its 1/3rd size (even if not affected by clouds). The place of occurrence in question is open field near canal and so at the time of occurrence around 8:00 p.m. there would have been low visibility of heavy fog in dim moon light 5 of day old moon in its 1/3rd size (even if not affected by clouds). In such conditions distant persons or objects can not be seen clearly and identified correctly. The trial court has discussed in its judgment at page 115 of paper book, the arguments about Basant Panchami night, on day of occurrence which has not been disputed by State and has been reiterated by learned counsel for appellants with the support of photo copy of Panchang, (provided during arguments and taken on record). In its discussions, trial Court discussing position of moon in statements of P.W.-2 and P.W.-3, has failed to consider that 5 day old moon in its 1/3rd size may not produce bright moon light. 23. Prosecution witnesses Baba Singh P.W.-2 claims to have seen occurrence and identified culprits from a distance of 20 -25 meters (which comes around 65 – 82 feet) while Vimal Singh P.W.-3 from 35 40 meters (which comes around 114 – 131 feet) respectively, which are in contradiction with each other, while I.O. has mentioned above distance between the culprits and two witnesses in site plan Ext. A-6, to be 45 steps which comes around 34 meters or 110 feet. 24. Inspite of strong probability either of heavy fog around the place of occurrence or of clouds in sky covering moon further decreasing its dim light, upon consideration of entire evidence, on record since we find no positive evidence with regard to fog or clouds on night of occurrence and even no suggestion of fog or clouds to prosecution witnesses, we find it appropriate to presume as if there was no fog or clouds, and it would have been clear weather with unobstructed dim moon light of 5 days old 1/3rd moon. 25. Even in clear weather without any fog or clouds, it is highly improbable rather just impossible for P.W.-2 and P.W.-3 to see culprits clearly and identify them correctly from such a long distance of around 30 metres or 100 feet in dim moon light of 1/3rd moon on chilly cold night when culprits would have been covering of their heads and ears to for protect themselves from cold. Undisputedly, there was no other source of light and in dim moon light of 5 days old 1/3rd moon even in clear weather, a person may not be clearly seen and correctly identified beyond a distance of 10 to 15 meters which distance may be restricted to 5 to 10 meters in case of fog or clouds. As mentioned earlier P.W.-2 claims to have seen culprits from a distance of 20 – 25 metres or 65 – 82 feet, and P.W.-3 claims to have seen them from at a distance of 35 – 40 metres or 114 – 131 feet. It is also pertinent to mention that 36 years old P.W.-3 Vimal Singh has stated at page 47 of paper book that ^^eSa dHkh dHkkj p’ek xkM+h pykrs le; yxkrk gwW] jkr esa fy[kk i<+h esa p’ek ugha yxkrk** which indicates that his distant vision was weak which further reduces the possibility of his correctly identifying the culprits from a distance of 35 – 40 meters or 115 to 130 feet even in clear weather. The prosecution witnesses P.W.-2 and P.W.-3 though claims to be having torches, but do not claim to have thrown torch lights on culprits or identified them in torch light. 26. Prosecution witnesses P.W.-2 and P.W.-3 have stated that upon beaten by appellants when Santosh raised alarm, accused shot him in head and dragging his body thrown it in Canal and they fled away. Their conduct in neither reaching for rescue on alarm of their best friend Santosh deceased nor attempting to chase culprits nor promptly informing the father of deceased also raises strong suspicion over their presence near the spot and of their being eye witnesses of the occurrence. Though admittedly all the three were having phone facility, Baba Singh P.W.-2 at page 38 of paper book claims to have informed father of Santosh deceased by phone early in next morning, in contradiction to which at page 36, he has stated that when father of Santosh came Asother on next morning they informed him about the incident (face to face). Since they are friends of deceased, their testimony is required to be considered with caution and upon considering with caution, no reliance can be placed on their testimony in absence of any corroborative evidence of independent witness. 27. Since they are friends of deceased, their testimony is required to be considered with caution and upon considering with caution, no reliance can be placed on their testimony in absence of any corroborative evidence of independent witness. 27. We are of considered view that the prosecution case is based on sold contradictory testimony of partisan witnesses Baba Singh P.W.-2 and Vimal Singh P.W.-3 (friends of deceased) which is not found reliable in absence of corroboration by some independent evidence. As per F.I.R. averments made in F.I.R. occurrence was seen by several others apart from Baba Singh and Vimal Singh but no one has been produced for corroboration of P.W.-2 and P.W.-3. It is also noteworthy that there is no evidence of fetching of deceased by appellants and even the eggs or liquor vendors were not produced, who were best witnesses of deceased being in company of appellants. 28. The recovery of clothes and shoes of deceased and finding of human blood on his scarf as per report of forensic lab, also does not give any support to prosecution case with regard to involvement of appellants in commission of murder of Santosh. The recovery of fire arm from appellant Sunil Singh after four days of incident, from an open place is highly doubtful and may not be relied in absence of any independent witness of recovery. 29. In view of the discussions made above, we have come to the conclusion that prosecution has failed to prove the charges levelled against accused persons under Section 302/34, 201 I.P.C. or Section 25 Arms Act by any reliable, cogent and independent evidence to the hilt beyond reasonable doubts. For the reasons mentioned in preceding paras, considering the possibility of murder of deceased by unidentified culprits in the darkness of night and false implication of appellants, in belated F.I.R. due to enmity and suspicion it will not be safe to base conviction of appellants on self contradictory, interested, and uncorroborated testimony of P.W.-2 Baba Singh and P.W.-3 Vimal Singh and accused appellants are entitled to the benefit of doubt. The learned trial Court has acted wrongly, illegally and incorrectly in not considering above mentioned material aspects and in believing untruthful, unreliable, interested contradictory and uncorroborated testimony of P.W.-2 and P.W.-3. in holding the appellants guilty. The learned trial Court has acted wrongly, illegally and incorrectly in not considering above mentioned material aspects and in believing untruthful, unreliable, interested contradictory and uncorroborated testimony of P.W.-2 and P.W.-3. in holding the appellants guilty. The impugned judgment and order of conviction of appellants and sentence is liable to be set aside and appeal is liable to be allowed. 30. The appeal is allowed and impugned judgment and order of conviction and sentence is set aside. The accused appellants Sunil Singh @ Lambari and Deepak are acquitted of the charges under Section 302/34, 201 I.P.C. and accused appellant Sunil Singh @ Lambari is also acquitted of the charges under Section 25 Arms Act. The accused appellants are on bail, they need not surrender unless wanted in some other case and subject to furnishing of personal bond and two sureties of like amount to the satisfaction of trial Court, by each of them, in view of provisions of Section 437 A Cr.P.C., to appear before higher Court as and when such Court issue notices in respect of any appeal or petition filed against the judgment.