N.B. Asthana, J. - (1.) All the appellants were convicted in sessions trial No. 684 of 1979 decided on 11.8.1980 by the then II Additional Sessions Judge, Etah under Sections 302/34 Indian Penal Code and sentenced to undergo imprisonment for life. In addition appellants Shishu Pal Singh, Ram Pal Singh and Satya Pal Singh were convicted under Sections 148 and 307 Indian Penal Code and sentenced to undergo 2 years R.I. under Section 148 Indian Penal Code. Appellant Ram Swarup was also convicted for the offences punishable under Section 147 and 307/149 Indian Penal Code and sentenced to undergo rigorous imprisonment for one year under Section 147 and to 10 years R.I. for the offence under Sections 307/149 Indian Penal Code. All the sentences were however made to run concurrently. Aggrieved by it they have come to this court in Appeal. Nathu Singh was also named as one of the accused in the F.I.R. He died during the pendency of trial. The case against him abated.The charges against Shishu Pal Singh, Ram Pal Singh and Satya Pal Singh were that on 17.6.1979 at about 7 P.M. in front of the house of informant P.W.2 Yad Ram in village Nagla Narain,hamlet of village Karampur, P.S. Ganjdundwara, Etah armed with guns along with Natthu and Ram Swarup were members of unlawful assembly and in prosecution of the common object of such unlawful assembly they committed the murder of Dhan Singh and caused fire arm injuries upon P.W.2 Yad Ram with the intention to kill him. Ram Swarup is said to have been armed with a lathi and was charged for the offences punishable under Sections 147, 302/149 and 307/149 Indian Penal Code.The prosecution story in brief was that litigation between the accused and informant's father was going on over land, Criminal litigation was also going on between the parties. On the date and time of the incident the injured P.W. 2 Yad Ram, P.W.3 Soran Singh, P.W.3 Km.Dhan Devi, daughter of deceased and P.W.6 Smt. Ram Devi wife of the deceased were sitting after taking meals in the inner court yard of the house. P.W.3 Soran Singh had come to talk to the deceased in connection with ploughing of the fields. At that time Natthu, Shishu Pal Singh, Ram Pal Singh, Satya Pal Singh and Ram Swarup came there. Natthu and Ram Swarup were armed with lathies. The remaining three persons were armed with guns. They surrounded the deceased and the witnesses and tried to drag the deceased who was sitting on a cot. The first informant P.W.2 Yad Ram caught hold of his father by the waist so that these persons could not drag him. Natthu and Ram Swarup then stopped dragging the deceased and exhorted that as he is not willing to go with them he be shot dead. Shishu Pal Singh, Ram Pal Singh and Satya Pal Singh who are real brothers fired upon the deceased hitting him on the chest, temple and other places. He fell down and died. As P.W. 2 Yad Ram had caught hold of his father by the waist, he also received gun shot injuries in his left hand. The appellants thereupon said that Dhan Singh has died and they should now run away. All of them then made good their escape. No attempt was made to apprehend them as they were armed with weapons.At about 12 midnight or 1 A.M., P.W.2 Yad Ram was taken on a bullock cart to P.S. Ganjdundwara at a distance of 5 miles from the place of incident. The F.I.R. Ext. Ka.2 of this incident was ledged by P.W.2 Yad Ram at 3.05 A.M. P.W.7 Head Moharrir Ishwar Dayal on the basis of this report prepared the check report Ext. Ka.4, made entry in the general diary (Ext. Ka.5) and registered a case. The injured was sent to Primary Health Centre Ganjdundwara where he was examined at 3 A.M. by P.W.4 Dr. Keshav Kumar Singh. He found the following injuries upon P.W.2 Yad Ram: 1. Gun shot wound of entry 2.5 cm. x 2 cm. on the outer side of left wrist of hand just near the styloid process of readius, margins of wound were lacerated and inverted, blackening and tattooing were present. Dark and fresh blood was found over the injury. 2. Lacerated wound of exit 9 cm. x 6 cm. on the inner side of lower portion of left forearm just above front of wrist joint. Margins of wound were lacerated and averted. No blackening or tattooing was found. Both the injuries were caused by fire arm. They were kept under observation. X-ray was advised. According to the Doctor these injuries were fresh to half day old. He proved the injury report Ext. Ka.3 prepared by him at that very time. The investigation of the case was taken up by P.W.9 S.I. Radhey Shyam Pandey who was posted as S.O. P.S. Ganjdundwara. He recorded the statement of P.W.2 Yadav Ram at the Plice Station and then he was sent for medical examination. He thereafter reached the place of incident. He found the dead body of Dhan Singh lying there. He directed S.I. Ram Prakash who had accompanied him to prepare the Inquest Report and other papers. These are Exts. Ka.5 to Ka.10. He also signed these papers. The dead body was sealed and sent through P.W.8 Constable Sia Ram for post mortem examination. He thereafter recorded the statements of the panches and prepared the site plan Ext. Ka.12. He collected blood stained and simple earth from two points from the place of incident, sealed them in separate tins and prepared the memo Exts. Ka.13 and Ka.14. He searched for the appellants but they were not available. On the same day he recorded the statement of P.W.6 Smt. Ram Devi. On 19.6.79 he received the post mortem and injury reports. On 17.7.1979 he recorded the statement of the accused and on the same day submitted the charge sheet Ext. Ka.15 against the accused. It does not appear from his examination-in-chief as to when he recorded the statements of P.W.3 Soran Singh and P.W.5 Km. Dhan Devi. P.W.1 Dr. Daya Shanker Gupta conducted the post mortem examination of the deceased on 18.6.79 at 5.30 A.M. He found the following ante mortem injuries upon the dead body: (1) Fire arm wound of entry on right side neck just below angle of mandible 1.5 cm. x 1.5 cm. x muscle deep. (2) Two fire arm wounds of entry on right side chest one at 6 O'clock and the other at 9 O'clock position. (3) Two fire arm wounds of entry on right hypochondrile 1 cm. x 1 cm., cavity deep 6 cm. below. (4) Fire arm wound of entry right ingulnal region 1 cm. x 0.5 cm., muscle deep. (5) Fire arm wound of entry left sub scapular region 1.5 cm. x 1.5 cm. x cavity deep. The direction of injury Nos. 1 to 4 was from front to back and horizontal. One pellet was recovered from the neck muscles and vessels. The vessels were found grossly lacerated. Pleura was found lacerated by pellets. Both lungs were found grossly lacerated. From the right lung two pellets and from the left lung one was and 4 pellet were recovered. Haematoma in the layers of the abdominal wall at the site of injuries was found. Periteneum was also found lacerated. Stomach contained Semi-digested food. Liver was also grossly lacerated. Two pellets were recovered. One pellet was recovered from the right hand inguinal region. The death according to him had taken place about one day before as a result of haemorrhage and shock on account of ante-mortem injuries found upon the dead body. Appellants pleaded not guilty and gave out that they had been falsely implicated on account of enmity. The prosecution in support of its case examined nine witnesses. P.W.2 Yad Ram, P.W.3 Soran Singh, P.W.5 Km. Dhan Devi and P.W.6 Smt. Ram Devi are witnesses of facts. The trial court believed the prosecution version of the case, convicted and sentenced the appellants as stated above. We have heard the learned counsel of the parties and have perused the entire record. According to the allegations made in the F.I.R. the incident took place at about 7 P.M. The F.I.R. was lodged at 3.05 A.M. It has to be seen as to whether the delay in lodging the F.I.R. has been explained because the contention on behalf of the appellants is that the incident took place sometimes in the night, the assailants were not seen or identified and that they have been falsely implicated on account of enmity. P.W.2 Yad Ram in his examination-in-chief gave out that after the incident he and other family members started weeping and crying, then a cart was taken from a Gaderiaya. Bullocks were taken from other persons and that at about midnight or 1 A.M. he was taken on the cart to P.S. Ganjdundwara. This witness was injured. In the normal course he would have started for lodging the F.I.R. and for medical aid as early as possible. In his cross examinations he gave out that his father had 8 bighas of cultivation, they also take some land on Batai and that they keep plough and the bullocks. We do not think in the circumstances he would have borrowed the bullocks from some one also. There is nothing on the record to indicate that the bullocks which he was having were unfit for driving a cart. In any case 3 to 4 hours would not have been spent in arranging the cart and the bullocks. This witness further gave out that about 2 or 3 hours were spent in reaching the police station and that in Ganjdundwara the FIR was was got scribed by him which took about half an hour. The scribe of the report met him at a distance of about 20-25 paces from the Police Station on the road. It has not at all been explained as to how that person was available at that hour of the night at a small distance from the Police Station. He had not been examined as a witness. P.W.2 Yad Ram gave out that this person had approached them just by chance and enquired from him whereupon he asked him to take down his report. This person brought the paper and pen then scribed the F.I.R. This appears to be more than a co-incidence. He could not give any satisfactory explanation as to why he got the F.I.R. scribed when he was just near the Police Station. According to this witness more than two hours were spent in covering the distance of 5 miles from his village to the Police Station. It is rather a long time in covering the distance of 5 miles. He further gave out that 15 or 20 minutes were spent in lodging the F.I.R. at the Police Station. Thereafter his statement was recorded which took about 10 or 15 minutes. He was then sent to the hospital. He took about 5 minutes in reaching there. From his statement it is clear that more than half an hour was spent by him before he could reach the Primary Health Centre from the Police Station. The Doctor took 5 minutes in coming and examining the injured. According to the statement of the Doctor he examined the injured at 3.00 A.M. The Doctor in his corss-examination gave out that there may have been some difference in the watch kept by him and in the watch kept at the Police Station. It may be so but there is nothing on the record to indicate this difference was of more than half an hour. The trial court was not satisfied with the time of the F.I.R. and the medical examination but it was of the opinion that this difference was artificially created on account of machinations and political pressure. However, we do not find anything on the record to support the conclusion of the trial court. This discrepancy as well as the unexplained delay in lodging the F.I.R. clearly indicate that the incident may not have taken place at 7 P.M. as alleged by the prosecution. P.W.5 Km. Dhan Devi in her examination-in-chief supported the prosecution story but in cross examination gave out that she could not tell the time of the incident. The sun was setting but the lamps had not been lit. She did not know whether the moon had arisen at that time or not. She further stated that the assailants came, fired and then ran away and that she could not recognise the assailants. She was re-examined by the prosecution. She clearly stated that she could not see the assailants and that at the time she was in the kitchen. P.W. 6 Smt. Ram Devi in her examination-in-chief corroborated the prosecution story but in her cross-examination gave out that her husband after taking meals had just sat on the cot when the incident took place. In her cross examination she stated that the assailants were wearing Khaki uniform of the type as the police use. She went on to say that one of the assailants had concealed his identity by placing a 'dhata' over his face. Only eyes and the mouth were visible. P.W.3 Soran Singh in his cross-examination gave out that at the time of the incident P.W.5 Km. Dhan Devi and P.W.6 Smt. Ram Devi were in the kitchen and that both of them came out of the kitchen when the assailants had run away. He also replied in the affirmative to the question that the place of incident is not visible from the kitchen. He admitted that the persons firing were in police uniform. He stated that Dhan Singh fell on the cot after being hit. It does not appear from the statement of the Investigating Officer that he collected blood stained 'Ban' of the cot. He further admitted that it was a dark night and that people generally take meals at about 8 or 8.30 in the night. He further stated that the village chowkidar who lives at a distance of 3 furlongs from the place of incident had come to the place of incident. When he was asked as to whether he was sent to the Police Station for lodging the F.I.R., the witness replied that he had gone to the Police Station. From the entry made in the relevant general diary it does not appear that the Chowkidar visited the Police Station. He further stated that P.W.2 Yad Ram asked the Head Moharrir to take down the report whereupon he asked him to give written report. yad Ram was then sent to the hospital and that the report was being written at the time. Yad Ram was sent to the hospital. He further stated that he did not know as to who had scribed the report. He was then permitted to be cross examined by the prosecution. However, we do not find anything in his cross-examination which may show that he is not speaking the truth. The fact that the F.I.R. was delayed and does not appear to have been taken down at 3 A.M. would be circumstances to indicate that this witness is not speaking a lie upon these points. P.W. 2 Yad Ram in his cross examination also gave out that no neighbour turned up at the time of the incident and that they came when the assailants had run away. Had the incident taken place when the twilight of the sun was still available, some neighbours would have certainly come to see as to what had happened. They may not see as to what had happened. They may not have come to the actual place of the incident but most have watched it from a safe distance. No neighbour has been examined to corroborate the prosecution story about the time of incident. Some independent witness should have been examined by the prosecution to fix the time of incident as it was hotly disputed by the appellants as it was hotly disputed by the appellants that the incident did not take place upon the time as alleged by the prosecution and that it took place sometime in the night. According to P.W.2 Yad Ram he saw the assailants when they were at a distance of about 4 or 5 paces. His sister was towards the northern side at a distance of 7 or 8 paces. P.W.3 Soran Singhwas sitting on the cot itself. According to his statement the assailants had surrounded his father from all the four sides and they fired when they were unable to drag his father. According to him three shots were fired. It appears rather improbable that the other persons namely P.W.3 Soran Singh and the daughter and the wife of the deceased did not receive any injury. We also did not find anything on the record to indicate as to why the assailants were trying to drag the deceased. P.W.6 Smt. Ram Devi stated that no body went to call the Chowkidar because of the fear. This explanation does not appear to be satisfactory because at about midnight the first informant started from the village to lodge the F.I.R. One could have easily gone to a distance of 2 or 3 furlongs to call the village Chowkidar. From the material available on record we are of the opinion that the prosecution failed to prove that the incident took place at about 7 P.M. and that they were the accused who caused injuries to P.W.2 Yad Ram and murdered his father. In the facts and circumstances it cannot be ruled out that the incident took place sometime in the night, that no body was able to see the assailants and that the accused were implicated on account of enmity and litigation. The trial court committed a mistake in coming to the conclusion that the prosecution proved its case beyond a reasonable doubt. The appeal has therefore to be allowed. The appeal is allowed. The judgement and order appealed against are set aside. The appellants are acquitted of the offences charged with. They are on bail. They need not surrender. Their bail bonds are cancelled and the sureties are discharged. Appeal Allowed.;