ASHOK DIXIT Vs. STATE OF U P

JUDGEMENT

(1.) There are two inter connected appeals preferred by Ashok Dixit and Chaman Lal appellants against their conviction under section 302 and 307 I. P. C. and sentences of life imprisonment and 10 years R. I. respectively. They were also convicted under Section 25 of the Arms Act and sentenced to serve out two years R. I. The aforesaid conviction and sentences were recorded by Sri N. S. Gehlot, Special Judge (Additional Sessions Judge) Agra, vide his judgment and order dated 31st of July 1984 in Sessions Trial No. 202 of 1982, State v. Ashok Dixit and another under section 302/307 I. P. C. and 25 Arms Act, Police Station Civil Lines, District Etawah. It is worthy of mention here that the occurrence having taken place at Etawah, the trial should have in the ordinary course, been conducted at Etawah itself, but under certain special circumstances it stood transferred to Agra for trial and disposal under: the orders of this Court. In addition to the aforesaid two appeals preferred by appellants Ashok Dixit and Chaman Lal against their conviction and sentences, the State of U. P. has also come up in appeal against both the accused appel lants under section 377 Cr. P. C. seeking to enhance the sentence of life imprisonment to that of 'death. The aforesaid appeal was admitted and notices were issued to the appellants. Before embarking upon the prosecution case we would like to outline the situation of the place of occurrence and its surround ings. To begin with, Dr. Satya Prakash Dubey, alias, Sat tan, a Medical Practitioner by profes sion had his house situate in Mohalla Civil Lines Etawah near the District Supply Office and he along with his family consisting of his wife, namely, Smt. Manorama Dubey j. (deceased), and a daughter Km. Ritu aged about 11 years, used to reside in the afore said house. Umesh Chandra Mishra, the maternal uncle of Smt. Manorama Dubey was also putting up with Dr. Satya Prakash Dubey in the aforesaid house on the relevant date. Dr. Satya Prakash Dubey had his" house at a stone's throw distance of about 60 paces from the house of Dr. Satya Prakash Dubey along with his family. Dr. Satya Prakash Dubey (deceased); along with his family was occupying upper storey of the house for residential purposes while the ground floor was used for examination and boarding of the patients i. e. for clinical purposes. He had another clinic in the city under the name and style Modern X-ray and Pathology. To dwell on the case as disclosed by the prosecution, at about 8 p. m. on 8th August 1982,, Bhagwat Dayal Dubey, brother of Dr. Satya Prakash Dubey, heard firing and I shrieks emanating from the house of Dr. Satya Prakash Dubey whereupon he rushed| towards the house of Dr. Satya Prakash I Dubey along with his two sons with torches in their hands and as he arrived at the side gate of the house of Dr. S. P. Dubey, he came across Vijai Bahadur Dubey Station officer of Police Station and Sub Inspector Uma Sanker Yadav of Police Station Civil Lines who happened to reach there on a Motor cycle. He also came across Sri Satendra Gupta, Advocate Raj Narain Singhal and one or two more persons there belonging to the same locality. The Sub Inspectors along with Satendra Gupta and Raj Narain took up their position in the varandah of the ground floor of the house of Dr. S. P. Dubey while Bhagwat Dayal Dubey and his sons stood by the grill in the west of the Verandah of the said house. By that time, there being no electricity, the entire house was plunged into darkness. Even in the town there was no electricity at that time. Subsequent to taking up position by the Sub-Inspector and others, they again heard a shot being fired from the staircase of the said house and, thereafter, they saw one of the accused (whose identity was later on disclosed as Brijendra Kumar) tambling down from the stair case in the Varandah of the house. Having tumbled down in the Varandah accused Brijendra Kumar stood up and after covering some paces, he fell down in one corner of the Chabutra on the raised bricks. In the wake of Brijendra Kumar accused coming down the stair-case Ashok Dixit and Charnan Lal appellants also carne down the stair case, whereupon the aforesaid two sub-inspectors along with Raj Narain and Sri Satendra Gupta sweeped upon an4 over powered them and on their personal search pistol (mouser) Ex. IV along with four live cartridges in the magazine and one live cartridge in the chamber from the posses sion of appellant Ashok Dixit, while the per sonal search of Appellant Chaman Lal yielded a country made pistol Ex. X along with two live cartridges in the pocket and one empty cartridge from the chamber of the pistol. Likewise from the possession of accused Brijendra Kumar, one country made pistol Ex. XI along with two live cartridges and one empty cartridge from the chamber of 38 bore pistol were recovered. As such, all the three accused persons were taken into custody. While the two Sub Inspectors aforesaid were engaged in taking collecting weapons recovered from the accused, Bhag wat Dayal Dubey and his sons along with others, went up-stairs and upon reaching there, simultaneously electricity was restored. Bhagwat Dayal Dubey found that a kerosene lamp was burning in the Drawing Room, while a lantern was burning at the Dining Table, placed in the Varandah towards the court-yard and in the light mentioned supra, he saw that Munnu Singh, cornpounder of Dr. Dubey and Umesh Chandra Misra were lying on the flour in injured state. There after he found Smt. Manorarna Dubey lying senseless by the side of the wall of drawing room in a pool of blood and Dr. S. P. Dubey lying near the dining Table on the floor in a pool of blood. Thereafter, Bhagwat Dayal Dubey assisted by one Pande Ji, a tenant of Dr. S. P. Dubey in the house who happened to be on the first floor at the time of occurrence beside the portion occupied by Dr. S. P. Dubey, removed Dr. Satya Prakash Dubey and Smt. Manorama Dubey, Umesh Chandra Mishra and Munnu Singh to the District Hospital Etawah. Dr. Satya Prakash Dubey and Smt. Manorama Dubey, both were declared dead in the hospital. Umesh Chandra Mishra and Munnu Singh were medi cally examined there at the District Hospital at 9. 40 p. m. and 9. 45 p. m. respectively. Thereafter, complainant Bhagwat Dayal Dubey proceeded to the Police Station Civil Lines and handed over a written report Ex. Ka 1 of the occurrence at 10. 13 P. M. the same night to Police. Station depicting the actual assault on the two deceased persons and the injured persons and the events leading to the arrest of the accused persons namely, Brijendia Kumar, Ashok Dixit and Chaman Lal. In the aforesaid report, Bhagwat Dayal Dubey had mentioned that the actual occur rence culminating in assault on the two deceased persons viz. Dr. S. P. Dubey and his wife Smt. Manorama Dubey, and Munnu Singh and Umesh Chandra Mishra on the basis of the information received by him from Munnu Singh injured. Prem Narain Pandey, P. W. 6 Head con stable of P. S. Civil Lines upon receipt of the written report from Bhagwat Dayal Dubey, prepared a chick report -on the basis of the aforesaid written report and regis tered a case under section 302/307 I. P. C. against Brijendra Kumar, Chaman Lal and Ashok Dixit in the general diary of the Police Station. The investigation of the case was entrusted to Jokhu Singh Arya P. W. 16. On the other hand, Vijai Bhadur Singh after taking into his custody the arms and cartridge recovered from the appellants and Birjendra Kumar accused, kept them in sealed covers and prepared recovery memo Ex. Ka. 13. Thereafter, he proceeded the Police station Civil Lines along with the three accused persons and the recovered articles from the possession of the appellants and there he lodged a report at 11 p. m. whereupon Prem Narain Pandey P. W. 6 prepared a chick report and registered a case under section 25 of the Arms Act against all the three accused. Jokhu Singh Arya P. W. 16, Sub Inspector who was present at the Police Station when the aforesaid report of the occurrence lodged by Bhagwat Dayal Dubey at 10. 15 P. M. was immediately entrusted with the investi gation of the case. He recorded the state ment of Prem Narain Pandey, Head con stable at the Police Station and left for the place of occurrence which lay at a dis tance of 1 km from the police station. Upon reaching the place of occurrence, he found the house of the deceased locked being guarded by the Police Constable who had been placed on duty there for security pur poses. The same night he also received a report regarding the registration of the case under the Arms Act and also the medical reports of the injured. During the night he did not examine any other witness. Next day i. e. 9. 8. 82, he resumed the investigation and again recorded the statement of Head Constable Prem Narain Pandey in connection with the' case registered under the Arms Act and thereafter, he went to Police Station Kotwali and recorded the statement of Vijai Bahadur Singh Station Officer and Uma Shariker Yadav Sub Inspector. He also recorded the statement of Ashok Dixit and Chaman Lal accused at P. S. Kotwali. There after, he proceeded to the hospital where he recorded the statements of Umesh Chandra Mishra injured P. W. 2 and Munnu Singh injured Bhagwat Dayal Dubey. Brijendra Singh accused and Daulat Ram Pal, Sub Inspector and others. From there he started for the place of occurrence and upon reaching there he prepared site plan Ex. Ka 19 relating to the ground floor and Ex. Ka 20 relating to upper storey of the house of Dr. S. P. Dubey on the pointing out of the complainant Bhagwat Dayal Dubey and Vijai Bahadur Singh Station Officer. He found blood in the Drawing Room inside and outside the Verandah on the upper storey. He collected the same in his possession and prepared the requisite memo. He also found one empty cartridge of. 32 bore and two empty cartri dges from the Dining Room. Another empty cartridge of. 38 bore was also found inside the projection of the inner Verandah. The aforesaid empty cartridges were taken posse ssion of by him and he prepared the requisite memo Ex. Ka. 2. The Sub Inspector also found blood stains on bed cover and he took the same into his possession and prepared requisite memo Ex. Ka 25. A lamp and a lantern were also found by the Sub-Inspector in the house which he gave in the Supurdagi of Bhagwat Dayal Dubey and prepared memo Ex. Ka 26. He also examined the torches of Ajai Kumar Dubey and Vivek Kumar Dubey, sons of Bhagwat Dayal Dubey and they were found in working order. The torches were entrusted to the Supurdagi of Ajai Kumar Dubey and Vivek Kumar Dubey and memo Ex. Ka 27 was prepared thereof. The Sub Inspector examined Km. Ritu Dubey P. W. 3 Raj Narain Singh P. W. 15 and other persons on 10. 8. 82. The Sub Inspector also dispatched arms and ammunition during investigation to the Ballast is Expert at Lucknow for com parisons. Dr. R. K. Dubey P. W. 5 examined the injuries of Umesh Chandra Mishra P. W. 2 at 9. 40 P. M. on 8. 8. 82 in the district Hospital Etawah and he found the following injuries: 1. Lacerated wound 2 cm x 2 cm x depth, kept under observation on extensor aspect of right fore-arm middle part kept under observation. Advised X-ray of right forearm. 2. Lacerated wound 2 cm x 2 cm muscle deep on back of left hand 2 cm below left wrist joint. Injury kept under observa tion. Advised X-ray of left wrist. 3. Lacerated wound 1 cm x 1 cm muscle deep on back of left wrist joint kept under observation. Advised X-ray of left wrist. Bleeding present. 4. Lacerated wound 1 cm x 1 cm x depth kept under observation. Blackening and charring present in area 3 cm x 1 cm on flexor aspect of right forearm 6 cm below right wrist joint. All the aforesaid injuries were opined by the Doctor to have been caused by fire arm. The injuries were kept under observa tion and X-ray was advised. The aforesaid doctor also examined the injuries sustained by Munnu Singh on 8. 8. 82 at 9. 45 P. M. and he found the following injuries on his person: 1. Lacerated wound 1 cm x 1 cm x depth (through and through) blackening present around the wound, size of blackening 2 cm x 3 cm on flexor aspect of right fore arm 13 cm above right wrist joint (wound of entrance ). 2. Lacerated wound 1, 1 1/2 cm x 1/2 cm depth (continuation of wound no. 1 through and through on extensor aspect of right fore-arm 14 cm above right wrist joint. Bleeding present (wound of exit. ). The Doctor opined the injuries fresh caused by fire-arm. Nature was kept under observation. X-ray of right forearm was advised. The X-ray examination of Umesh Chandra Misra revealed communicated fracture of shift of Ulna of right side. However X-ray examination of Munnu Singh did not reveal any fracture. The Doctor also examined injuries on the person of Brijendra Kumar Dwivedi on 8. 8. 82 at 11. 30 P. M. and he found the following injuries on his person. 1. Lacerated wound 1 cm x 1/2 cm x depth (muscle deep) on right side head, 9 cm above right ear. 2. Lacerated wound 2 cm x 1 cm x muscle deep right side of head 6 cm x 1 cm muscle deep right side of head 6 cm above front right ear. Kept under observation. Advised X-ray skull. 3. Lacerated wound 1 cm x 1/2 cm x muscle deep right side head 10 cm above right ear. Bleeding present. 4. Lacerated wound 1 cm x 1 cm x depth. Kept under observation on right upper arm 10 cm below tip of shoulder. Advised X-ray right upper arm. Lacerated wound 1 cm x 1 cm x depth kept under observation on left side back of chest just below inferior ankle of left scapula. Advised X-ray chest left side. The Doctor opined all the injuries as fresh. Ml the injuries were kept under observation. X-ray of left chest and right arm was advised. According to the Doctor injuries 1, 2 and could be the result of falling and friction. Upon X-ray examination of the accused Biijendra Kumar, fracture of 6th vertebra (dorsal) and fracture of 3rd rib of right side was found. Daulat Ram Pal P. W. 11, who was then posted as Sub Inspector in the Police Station Civil Lines, conducted inquest on the dead body of Dr. Satya Prakash Dubey and Smt. Manorama Dubey in the morning on 9. 8. 82 in the hospital itself. He sent the dead bodies in sealed cover along with connected papers to the mortuary for post mortem examination through constable Ram Raj Singh and Udai Narain. Dr. Rajendra Singh P. W. 8 conducted autopsy on the dead body of the deceased (Dr.) S. P. Dubey on 9. 8. 82 at 11. 30 A. M. and he found the following ante-mortem injuries on his person. 1. Gun shot wound 0. 5 cm x 0. 5 cm x cavity deep in the midline of chest 6 cm below suprasternal notch. Margins inverted. Blackening and tattooing present (wound of entry ). 2. Gun shot wound 1 cm. x 0. 5 cm x cavity deep on the back in lumber region. 11 cm above post sup. illiac spine 5 cm (R) lateral to mid line. Margins inverted (wound of entry ). Blackening and tattooing present. 3. Gun shot wound 2 cm x 1 cm x cavity deep on right side abodmen 10 cm from umbilicus 3 cm (right lateral to mid line 11 O'clock position. Margin everted. Tissues protruding out (wound of exist of injury No. 2. On internal examination, the doctor found the stranum fractured corresponding to injury No. 1. He found pleura lacerated on left side. Left lung was lacerated corres ponding to injury No. 1 and metallic pellet was recovered from left lung. Tissues em bedded. Pericardium was lacerated. Stomach was found empty and small intestines con tained faucal matter. Large intestines lacer ated corresponding to injury no. 2. In his opinion the cause of death was due to shock and hemorrhage and t he injuries were sufficient in ordinary course of nature to cause death. Dr. Rajendra Singh P. W. 8 also conducted post mortem on the dead body of the decea sed Smt. Manorama Dubey on 9. 8. 82 at 12. 30 p. m. and he found the following ante mortem injuries on her person. 1. Gun shot wound of entry 2 cm x 1. 5 cm x cavity deep on left breast 5 cm left lateral to mid-line 2 cm above left nipple. Blackening and tattooing present. Margins inverted (one metallic bullet recovered from right rector spinal muscle muscle outer border, middle part. 2. Gun shot wound of entry 1 cm x 1 cm through and through on the left thigh posteriorly 9 cm above left knee joint, Blackening and tattooing present. Margins inverted. 3. Gun shot wound of exit 1. 5 cm x 1. 5 cm x through and through communicating with injury no. 2on left thigh on medial aspect 6 cm above left knee joint. Margins everted. 4. Gun shot wound of entry 1 cm x 1 cm muscle deep on left thigh posteriorly 2 cm above injury No. 2. Blackening and tattooing present. One metallic bullet recovered from glutal region left side. Internal examination of her body revealed lungs, pericardium and heart lacerated. The stomach contained semi digested food. The doctor attributed the cause of death to shock and hemorrhage on account of the injuries which were sufficient in ordinary course of nature to cause death. Now reverting to the case of Brijendra Kumar, he breathed his last in the hospital at Lucknow on 26. 10. 82 and Dr. Wahidul Hasan, HCW 1, the then Medical Officer of State Blood Bank, King George Medical College Lucknow, conducted autopsy on the corpse of Brijendra Kumar Dwivedi (accused) on 27. 10. 82 and he found the following anti-mortem injuries on his person. 1. Infected bed sore 4 cm x 2 cm x bone deep present over heal of left foot. 2. infected bed sore 4 cm x 2. 5 cm bone deep present over lateral aspect of the right heal. 3. Healed seabed abrasion 3 cm x 2 cm obliquely situated on right iliac for a 2 cm. above the right anterior super iliac spine. 4. Infected bed sore 5 cm x 3 cm x muscle deep present on right side of upper part of thigh above greater trochanter. 5. Infected bed sore 20 cm x 16 cm x bone and muscle deep present over back involving both gluteal and sacro cavity geal region. Pus was found adherent to the bed score. On opening the chest cavity the 3rd right rib showed old fracture at costochondual junction. 1. Healed lacerated wound 3 cm x 1. 5 cm x granulation tissue deep present over back of upper lobe of right lung pleura over old injury was adherent to the lung tissue and chest wall. 2. Lacerated wound (healed) 3 cm x 3. 5 cm x granulation tissue deep present on the posterior aspect of middle lobe of left lung pleura adherent to the injury and chest wall margins of both above lacerated wound were made up of white fibrous tissue. 3. Body of 5th thoracic vertebra was found fractured a small hole of about 1. 5 cm diameter seen through and through in vertebral body. 6th thoracic vertebra showed healed oblique fracture on its body. On opening the vertebra spinal chord was found lacerated which started from level of 5th and extended upto 7th thoracic vertebra. No fresh blood clot was seen. 4. Both right and left kidneys are enlarged softened on cutting both kidneys a lot of pus came out and very small portion of both kidneys were found normal in appearance. 5. Pus was seen adherent to momentums. The Doctor attributed the death of the deceased due to septicaemia pyemia due to infected bed sores. It may however be mentioned that Brijenra Kumar accused died at 4 p. m. on 26. 10. 82 in Gandhi Memorial Associated Hospital Lucknow. Dr. Wahidul Hasan H. C. W. 1 has proved the post mortem report which was marked by us as Ex. C-1 and the genuineness of the aforesaid post mortem report was admitted both by the learned counsel for the appellant as well as the learned counsel for the State and thus the document was placed on the record of this case as additional evidence. Appellants Ashok Dixit and Chaman Lal pleaded not guilty to the charge and ascribed their false implication in the case due to enmity. They also denied their arrest at the place of occurrence by the police. In their defence, the appellants examined Munnu Singh DW 1 and Ravindra Nath Tiwari D. W. 2. In support of its case, the prosecution examined 17 witnesses. Out of the aforesaid witnesses. Umesh Chandra Misra P. W. 2 and Km, Ritu P. W. 3, minor daughter Dr. Satya Prakash Dubey (deceased) aged about 11 years, were examined as ocular witnesses of the occurrence. On the other hand, Vijai Eahadur Singh, Station Officer (P. W. 7) of Police Station Civil Lines Etawah, Raj Narayan Singh P. W. 15, compounder of Dr. S. P. Dubey and Bhagwat Dayal Dubey P. W. I, the eider brother of Dr. S. P. Dubey were examined as the witnesses of the arrest of the accused Chaman Lal, Ashok Dixit and Brijendra Kumar Dwivedi at the place of occurrence. Ram Asrey Pandey P. W. 17, Ballast Expert was examined in order to prove that the metallic bullet marked as E. B. 3 allegedly recovered from the dead body of Smt. Manorama Dubey (Deceased) had been fired from the Mouser (Pistol) marked Ex. IV allegedly possessed by Ashok Dixit, Ram Singh P. W. 9, Sub-station Operator of Electricity Board Etawah, was examined in order to prove about the supply of electri city in the town of Etawah at the time of occurrence. According to him, he had dis connected the supply of electricity to the town of Etawah from 7. 55 P. M. to 9. 02 P. M. on 8. 8,82 under the orders from con cerned authorities of Kanpur and it was restored only at 9. 02 p. m. on 8. 8. 82. Tej Pal Singh Tomar Tehsildar Magis trate was examined as C. W. 1 who had record ed the statement Ex. of Brijendra Kumar accused made before him. Firstly we take up the statement of Bhagwat Dayal Dubey P. W. 1 for scrutiny. He is the elder brother of deceased Dr. S. P. Dubey and his house lies at a distance of about 60 paces away from the house of the deceased across the road on the other side. Bhagwat Dayal Dubey deposed that Dr. S. P. Dubey was his younger brother and Smt. Manorama Dubey was the wife of Dr. S. P, Dubey. He also stated that Umesh Chandra Misra injured (P. W. 2) being the maternal uncle of Smt. Manorama Dubey had been living with Dr. S. P. Dubey on the first floor of the house. Describing the details of the house, he stated that for examination and great merit purposes of the patients, there was provision for boarding in the ground floor on the eastern side in front of the lawn of the house. Besides examining and treating the patients at the aforesaid house, Dr. Satya Prakash Dubey had another clinic under the name and style a Modern X-ray and Pathology, in the town of Etawah. Dwelling on the events of the day of occur rence, he deposed that he was at his house at about 9 p. m. on 8. 8. 82 when he heard shrieks and firing reports emanating from the directions of the house of Dr. S. P. Dubey. He along with his two sons who possessed torches in their hands, rushed towards the house of Dr. S. P. Dubey and as soon as he reached near the gate of the house of Dr. S. P. Dubey he came across Vijai Bahadur Singh, Station Officer and Uma Shanker Yadav Sub-Inspector of Police Station Civil Lines who were riding on a motor cycle. Sri Satendra Gupta Advocate and Raj Narain Singh, P. W. 2, another compander of Dr. S. P. Dubey along with one or two persons belonging to the locality were also attracted to the scene of occurrence and then the Sub-Ins pectors Vijai Bahadur Singh, Uma Shanker Yadav, Sri Satendra Gupta and Raj Narain took up their position behind the partition in the Verandah situate in the ground floor of the house of Dr. S. P. Dubey, while he along with his sons stayed back behind the grill of western Verandah of the said house. At the time, there was no electricity in the house and the entire town was plunged into darkness. Shortly thereafter, he heard the Firing shot coming out from the stair case and saw accused Brijendra Kumar tumbling down the stair-case on the ground floor in the Verandah. He (Brijendra Kumar) got up again and after walking along few paces he fell down on the corner of the Chabuira on the raised bricks. It was further stated by the witness that Ashok Dixit and Chaman Lal, accused shortly thereafter were also seen stepping down the stair case and on their coming on to the ground floor, they were sweeped upon and over powered by the two sub-Inspectors, Raj Narain and Uma Shanker Yadav and others and a Factory made pistol was recovered from the possession of Ashok Dixit appel lant. Search of other two accused persons namely Chamman Lal and Brijendra Kumai also yielded a country made pistol each and they were also taken possession by the Police,. Soon thereafter, he along with hi sons went upstairs followed by some other persons and at the same time electri city was restored to the house and also to the town. On his reaching the first floor, he saw that kerosene lamp was burring in the Drawing Room while a lantern was burning on the Dining Table placed in the Verandah towards courtyard. First of all, he came across Munnu Singh, compounder of Dr. S. P. Dubey and Umesh Chandra Misra who were lying injured there. Thereafter, he saw Smt. Manorama Dubey lying still on the Diwan of the Drawing Room in a pool of blood. At the same time, Km. Ritu daughter of Dr. S. P. Dubey emerged from beneath the cot placed in the bed room. Thereafter, he saw Dr. S. P. Dubey lying still in a pool of blood near the Dining Table. He called out Pandey Ji, a tenant in the upper storey of the same house and assisted by Pandey Ji, he took Dr. S. P. Dubey and Smt. Manorama Dubey along with Munnu Singh Urnesh Chandra Misra to the District Hospital Etawah where Dr. S. P. Dubey and Smt. Manorama Dubey were declared dead by the Doctor Leaving the two injured Munnu Singh and Umesh Chandra Mishra in the hospital for treatment, he went to the police station Civil Lines and lodged a written report (Ex. Ka 1) of the occurrence at 10. 15 P. M. which was also founded on the informa tion furnished to him by Munnu Singh injured. He also quipped that a week before the occurrence Dr. S. P. Dubey had disclosed to him that Ashok Dixit accused had threa tened him with dire consequence as he" suspected that he (Dr. S. P. Dubey) was helping the murders of his father namely: Badshah and others. Here it is worthy of notice that Bhagwat Dayal Dubey the First Informant of this case and the elder brother of deceased Dr. S. P. Dubey and others and the narration of the actual occurrence as contained in the First Information Report Ex. Ka 1 had been founded on the information furnished to him by Munnu Singh, one of the injured in the occurrence but to the detriment of the prosecution case, Munnu Singh was not examined to lend support to the version as contained in the First Information Report regarding the assault in the occurrence. Under the circumstances, the First Informa tion Report which was admittedly founded on the version of Munnu Singh one of the injured in the instant occurrence cannot be accepted as corroborative piece of evi dence to the statement of Bhagwat Dayal Dubey given in the court as far as the account of assault on the deceased and others is concerned. There has come no plausible explanation from the side of prosecution for not examining Munnu Singh who was a very material wit ness being one of t he injured witnesses in the occurrence. Munnu Singh was also a compounder of pr. S. P. Dubey. There, is no whisper of any allegation of Munnu Singh having been won ever by the accused persons. Under the circumstances the version contained in the First information - Report regarding the actual occurrence has lost it is corroborative value. This circumstance ' also brings under cloud the preparation of the General Diary entries at Police Station Civil Lines at that time alleged by the prosecution. There is another glaring infirmity shading the prosecution case and that is non recording of the state ment of eye witnesses, namely, Umesh Chand ra Mishra P. W. 2 Km. Ritu P. W. 3 and Munni Singh and also of Bhagwat Dayal Dubey the First Information during the night oi the occurrence by the Investgating Officer. Likewise the accused persons were not interrogated during the night by the investi gating officer either at the place of occur rence or at Police Station Civil Lines where they are said to have been lodged at 11 p. m. on 8. 8. 82. Instead the investigating officer Jokhu Singh Arya P. W. 16 has stated that he had recorded the statements of the accused in the morning of 9. 8. 82 at Police Station Kotwali. We have also looked into the case diary and it is boms out from the case diary that the statement of Ashok Dixit and Charnan Lal accused were recorded by Jokhu Singh Arya Investigating Officer after 7. 30 A. M. on 9. 8. 82 after recording the statement of Vijai Bahadur Singh and thereafter, he went to hospital where he first recorded the statement of Umesh Chandra Mishra and Munnu Singh and there after he had recorded the statement of Brijendra Kumar. Why and when the three accused persons were shifted to Police Station Kotwali from Police Station Civil Lines where they were put behind the lock up at 11 p. m. on 8. 8. 82 by Vijai Bahadur Singh Station Officer steeped in mystery and it has opened the flood rates of doubts encompassing the arrest of Ashok Dixit and Chaman Lal accused at about 9 p. m. on 8. 8. 82 on the ground floor of the house of Dr. S. P. Dubey and also about their ad mission while in the lock up of Police Station Civil Lines at 11 p. m. on 8. 8. 82, Another glaring discrepancy in the case is the omission in the First Information Report regarding the presence of lamp or lantern or even electric light on the upper Storey of the house of Dr. S. P. Dubey. Adverting in the testimony of Bhagwat Dayal Dubey it is glear that he did not state about the presence of lamp or lantern or electric light in the First Information Report and also in his statement u/s 161 Cr. P. C. However in his cross-examination he offered an ex planation to the effect that he did not con sider it expedient or necessary to incorporate each and everything in the First Information Report or in his statement under section 161 Cr. P. C. considering all the infir mities as fixed out and stated above, in their entirety, it is difficult to place credence on the evidence of Bhagwat Dayal Dubey so far as his version on the point of light is concerned at the time when he reached the upper storey of the house of Dr. 5. P. Dubey (deceased ). Reverting again to his statement Bhagwat Dayal Dubey stated that he stayed for 7 to 8 minutes on the upper storey of the house and during his period of stay on the upper storey of the house no police personnel had come up stairs and he himself with the assistance of Pandey Ji, a tenant of deceased Dr. S. P. Dubey and others, had taken the deceased and the injured to the hospital. It is hard to swallow that had the two Sub Inspectors been on the place of occurrence on the ground floor of the house as is the prosecu tion case, they could not have come up stairs having over-powered and apprehended the accused in order to sea Dr. S. P. Dubey and other inmates of the house who had fallen prey to the bullets of the deceased and for sending them to the hospital. It has further been stated by the witness that Ashok Dixit being related to him and the deceased Dr. S. P. Dubey, was a usual visitor in the house of the deceased. He further stated that Ashok Dixit, Chaman Lal and Brijendra Kumar were arrested by the Police personnel with I he assistance of Sri Satendra Gupta and Rajendra Kumar and he had also caught them from behind by giving a beating. However he stated in his cross-examination that during the course of arrest of the accused and, thereafter so long as he remained there he did not take I he name of the accused Ashok Dixit as he did not consider it neces sary owing to the fact that the accused Ashok Dixit was known to all. He, however admitted that he did not knbw whether Ashok Dixit was known to the Sub Inspectors from before. He further admitted in cross examination that recovery of arms from the accused was not made in his presence. Under the circumstances, the above dis crepancies' omission and admissions generate reasonable doubt about the alleged arrest of the three accused persons on the ground floor of the house of Dr. S. P. Dubey itself and also on account of the fact that the recovery memo Ex. Ka 11 of the arms from accused persons speaks nothing about the presence of Bhagwat Dayal Dubey at the time of alleged recovery of the arms from the accused. Under the circumstances it is not creditable that all the three accused persons were arrested in the presence of Bhagwat Dayal Dubey by Vijai Bhadur Singh P. W. 7 and others as stated by him. The motive as attributed for the crime by Bhagwat Dayal Dubey is not lent corroboration by any other evidence and it is too feasible to link the accused Ashok Dixit with the crime. Under the circumstances, we hold that there stands no motive for accused Ashok Dixit which could have actuated him to commit the Crime or participated in the commission of the crime in the instant case. Vijai Bahadur Singh P. W. 7 Station Officer and Raj Narain Singhal, P. W. 15, another compounder of Dr. S. P. Dubey were also examined in order to prove that Ashok Dixit Chaman Lal and Brijendra Kumar were arrested on the ground floor of the house of Dr. S. P. Dubey at about 9 p. m. on 8. 8. 82. Coming to the statement of Vijai Bhadur Singh Station Officer, P. S. Civil Lines Etawah, it has been deposed by him that on 8. 8. 82 at 7. 20 p. m. he had gone for patrolling and checking of out-post Civil Lines along with S. I. Uma Shanker Yadav and consequently, he reached the out-post Civil Lines and while he was engaged in the inspection of the said out-post, he heard the sound of firing coming from the direction of the house of Dr. S. P. Dubey at about 9 p. m. upon which he went towards the house of Dr. S. P. Dubey along with Sub Inspector Uma Shanker Yadav on a motor cycle rind as soon as they reached the gate of the house of Dr. S. P. Dubey he noticed Sri Satendra Gupta, Advocate, Raj Narain Singhal P. W. 15 and Bhagwat Dayal Dubey P. W. 1 and others. He along with Sub Inspector Uma Shanker Yadav, Sri Satendra Gupta and Raj Narain Singhal took up position behind the grill of the Verandah of the house of Dr. S. P. Dubey. After taking up the position, he again heard the report of a gun fire and shortly thereafter, one persons came down the stair case and fell down on the ground floor but the again stood up, walked a few paces 9 ft. as per site plan Ex. Ka. 19 and again fell down on the Chabutra (the afore said persons was lanter identified as Briiendra Kumar Dwivedi. bhortly, thereafter two more persons were seen stepping down the stairs. They had pistols and reolvers in their hands and consequently, he along-with Sub inspector Uma Shanker Yaday and others swooped upon, overpowered and arrested them. the injured accused namely, Brijendra Kumar was also laken into custody. According to him also there was no electricity in the house of Dr. S. P. Dubey but as soon as the accused persons were apprehended electricity supply to the house was restored. He further deposed that all the three accused persons were subjected to search which yielded one factory made pistol Ex IV along with four cartridges in the magazine and- one in the Chamber from the possession of Ashok Dixit accused, one country made pistol of. 32 bore Ex. X two live cartridges from the pocket and one empty cartridge in the chamber of the pistol were recovered from the posses sions of Chaman Lal accused and one country made pistol Ex. XI two live cartridges and one empty cart ridge from the chamber of the pistol were recovered from the posse ssion of Brijendra Kumar accused. AM these articles were sealed and thereafter, he along with Sub-Inspector Uma Shenker Yadav look the three accused and the arms etc. discovered from them to the Police Station? Civil Lines and on the basis of the recovery lemo, a chik. report was prepared at the Police Station and a case was registered under section 25 Arms Act against Ashok Dixit, Chaman Lal and Briiendra Kumar Dwivedl Thereafter the accused persons were put behind the bar and the recovered arms and ammunition in sealed covers were deposited in the Malkhana of the Police Station Civil Lines. In cross examination he stated that Police out-post Civil Lines lies at a distance of 100 to 125 yards from the place of occurrence and at the time when he heard the firing, he was busy in inspecting the out-post. However, there is no entry or any-register proved by the prosecution to indicate that at the time of alleged firing Vijai Bahadur Singh was engaged in inspection at Police out- post Civil Lines as admitted by him. He further slated that when he arrived at the house of Dr. S. P. Dubey deceased, there was firing on the upper storey. He admitted that when he reached the house of Dr. S. P. Dubey, the entire house was enveloped in darkness on account of there being no electricity and it was restored as soon as the accused persons had been over-powered and taken into custody by him. He also admitted that he did not mention in the recovery memo Ex. Ka 4 that at the time of arrest of the accused persons, electricity was restored to the house. He further admitted that at the time of the arrest of the accused persons Bhagwat Dayal Dubey and his sons were available at the place of occurrence but he did not mention their presence in the recovery memo Ex. , Ka. 4. there is merely a mention in the recovery memo that Bhagwat Dayal Dubey had taken the injured to the hospital. He also admitted in his cross-examination that he did not go up-stairs on the first floor of the house of Dr. S. P. Dubey after the accused were taken into custody and he also did not send the sub-inspector and other personnel up stairs on account of the fact that She accused persons might not escape. The behaviour of the Vijay Bahadur Singh is quite contrary to the natural human conduct. It is not believable that in such a situation, a police officer of the stature of Vijai Bahadur Singh would not go to the first floor of the house where admittedly firing had taken place. Under the circumstances, the presence of Vijai Bahadur Singh appears to be quite doubtful at the place of occurrence and also at police outpost Civil Lines at about 9 p. m. when he heard the firing during inspection. Vijai Bahadur Singh had denied the sugges tion by the defence that he had found Brijen dra Kumar on the first floor of the house of Dr. S. P. Dubey in an Injured state and the alleged mouser pistol Ex. Ka-IV was recovered from the Drawing Room of Dr. S. P. Dubey. He had also denied the sugges tion that the appellants were not arrested on the ground floor of the house of Dr. S. P. Dubey It was also denied by him that no recovery of fire-arms and ammunition were made from the appellants. He also admitted that he did not meet the Investi gating Officer during night and that She Investigating Officer had met him at P. S. Kotwali next day of the occurrence. Upon a consideration of the facts and circumstances of the case as detailed above, the statement of Vijai Bahadur Singh that he arrested the accused persons along with fire arms on the ground floor itself of the house while they were attempting to escape through the stairs is highly doubtful and is difficult to be swallowed. It is amply evi dent from the medical report of Brijendra Kumar accused Ex. Ka-6 that Brijendra Kuamr had sustained five lacerated wounds on his person which according to Dr. R. K. Chaudhari P. W. 5 were kept under observation and X-ray had been advised. According to X-ray report, there was communicated fracture in the Ulna of the right fore-arm of the accused which was the result of injuries numbers 1 and IV of the accused and injuries 2 and 3 sustained by the accused were the result of gunshots. The Doctor after looking into the X-ray report carne to a conclusion that injuries numbers 4 and 5 were wounds of entry and were caused vertebra on the right side of the third rib. The Doctor also opined that at the time when the injuries were sustained there was also possibility hat I he lower limb may have suffered paralysis. Even from the post mortem report upon internal examina tion of Brijendra Kumar accused, 5th thoracic vertebra was found fractured, a small hole of about 1. 5 cm diameter seen through and through In vertebral body. 6th thoracic vertebra showed healed oblique fracture on its body. On opening (he vertebra spinal cord was found lacerated which started from level of 5th and extended up to 7th thoracic vertebra which clearly vouchsafes that after, sustaining injuries, Brijendra Kumar accused would have fallen down and could not have been able to cover 5 to 6 steps as has been deposed by the wit nesses after having fallen down on the ground. Under the circumstances, it is thus, difficult to accept that Drijendra Kumar could have been able to come down the stairs and after having fallen once he had tried again to get up and walked for some distance. The doubt is further depended and compounded by the fact that the Investigating Officer did not find any blood on the ground floor of the house or on the stairs of the house which arouse reasonable doubt with regard to the arrest of Brijendra Kumar on the ground floor as stated by Vijai Bahadur Singh, P. W. 7 though all the injuries sustained by Brijendra Kumar were bleeding injuries and according to Vijai Bahadur Singh, Brijen dra accused remained lying on the ground floor for about 45 minutes after his falling down on the ground. The absence of blood on the stair-case and ground floor of the house is an important circumstances which overwhelmingly negatives the story of arrest of the accused Brijendra Kumar from the ground floor of the house of Dr. S. P. Dubey by Vijai Bahadur Singh and others. Once it is rendered doubtful that Brijendra Kumar after having fallen down on the ground could not have been able to cover the distance as deposed by the witnesses the arrest of Brijendra Kumar and also of other accused comes under a cloud at the place of occurrence and as such is diffi cult to hold that the accused Ashok Dixit and Charnan Lal were arrested on the ground floor of the house of Dr. S. P. Dubey. Thus, on the whole as the circumstances also suggest that it is probably, that Brijendra Kumar accused was found in injured state on the upper storey of the house of Dr. S. P. Dubey by the Police and the accused were not arrested on the ground floor of the house of Dr. S. P. Dubay. The evidence of Vijai Bahadur Singh does not appear reliable also. His evidence also bristles with glaring infirmities and also does not inspire confidence. The last witness deposing for the alleged arrest of the accused persons on the ground floor of the house of Dr. S. P. Dubey is Raj Narain Singhal, P. W. 15 He introduces himself as the compound of Dr. S. P. Dubey in his X-ray clinic situate in the city of Etawah. He deposed that on 8. 8. 82 at about 9 p. m he had gone;o the house of Sri Vijai Kumar Shukla, Advocate in order to adminis ter injection to him. He was on his way back to the house of Dr. S. P. Dubey after administering injection to Sri Vijas Kumar Shukla and when he entered the Gali leading to the house of Dr. S. P. Dubey he heard the firing and shrieks emanating from the house of Dr. S. P. Dubey. He rushed towards the house and-at the same time, he saw Bhagwat Dayal Dubey and his two sons and upon his reaching near the gate of the aforesaid house he also saw two sub- in spectors Vijai Bahaovr Singh and Uma Shanker Yadav corning on motorcycles He along with Sub Inspectors or others took position behind the partition on the ground floor of the house of Dr. S. P. Dubey while Bhagwat Dayal Dubey and his two sons concealed themselves behind the grill and the house. Thereupon, he heard the step sound of the persons coming down the stairs together with the sound of firing and he saw a person tumbling down the stair-case and after coming down on to the ground floor, the person got up and after struggling for a short distance, he again fell down on the ground floor. He further deposed that two more persons also came down the stair case shortly thereafter and they were arrested by the two Sub-Inspectors and other persons. He further deposed that there was no light in the house at that time but electricity was restored as soon as the accused were arrested. With regard to the alleged recoveries of fire arms and ammunition from the three accused persons, he ,has reiterated what Vijai Bahadur Singh had stated in his evidence. He further stated that leaving the Sub inspectors on the ground floor to deal with the culprits, he wanted to go up-stairs, but he could not go on the first floor of the house as the Sub Inspector summoned, him back on to the ground floor. He also stated to have affixed his signature on the recovery memo Ex. Ka. 15 prepared by the Sub Inspector regarding the recovery of fire arms and the cartridges. The examination-in-chief of this witness was concluded on 23. 4. 84 but he again appear ed before the court on 25. 4. 84 and was re-examined at the instance of Distt. Govt. Counsel (Crl.) He deposed in his re- examina tion that on 20th March 1984 when he went back to Kanpur after giving evidence before the court 4 or 5 unknown persons armed with fire-arms, came at his house at Kanpur city and forced him to write a letter Ex. Ka 4 to his father. They asked him to put 28th March, 1984 on the letter though the date on which they forced him to write the letter was 27th March and, thus he wrote the said letter under fear and duress on account of the threat of death. In cross-examination, he admitted that he lodged a report at Police Station, Juhi, Kanpur on 30th March 1984 relating to the aforesaid occurre nce. He also deposed that he could not lodge the report of the aforesaid occurrence earlier on account of the fact that one of the armed persons who had forced him to write the afore said letter, was hovering around and keeping "a constant watch and vigil upon him while the remaining persons left. He admitted in cross-examination that during the seine laid around him by the aforesaid armed persons between 27th March to 30th March 1984 was continuously attending to his duties in the X-ray clinic of Dr. Smt. Kamla Chaudhari at the scheduled time in the capacity of Technician from 8 a. m. to 9 p. m. at Kanpur but he did not disclose this incident to any one and not even to the Doct or in whose clinic he was working as X-ray Technician. It is significant to note that the witness had admit teddy written a letter Ex. Kha 4 to his father from Etawah to Kanpur that he was compelled to depose falsely in the case at the instance of the Police. The defence examined Munnu Singh Singhal D. W. 1, father of Raj Narain Singhal P. W. 15. Munnu Sinqh D. W. 1 stated that he had received a letter EX. Kha 4 written by his son to his Kanpur address and he had handed over the letter to Devi Shnnker one of the received a letter Ex. Kha 4 written by his that he had handed over the aforesaid letter to Devi Shanker out of anger as his son Koj Narafn had written him contrary to what he had stated before the court earlier. Under the circumstances, taking into account I he letter admittedly written by Raj Narain Singhal and considering the circumstances in which it was allegedly written by Raj Narain Singhal, implicit credence cannot be placed on his evidence that he had actually witnessed the arrest or the recovery of fire arms and ammunition from the accused persons. Statement of Raj Narain Singhal to the effect that he had written the afore said letter to his father on account of the threats extended to him by 4 or 5 armed men appears (to be a lame excuse. Another circumstance which is worthy of notice is that Raj' Narain Singhal had stated in the cross-examination that on the day of occurrence he was living in the garrage of the house of Dr. S. P. Dubey, though his father Munnu Singh D. W. 1 had stated in his evidence that he was living at Farrukhabad crossing at Etawah at the time of occurrence. ,another circumstances which lends strength to the suspicion that Raj Narain was not living in the garrage in the ground floor of Dr. S. P. Dubey is found in the evi dence of Umesh Chandra Mishra P. W. 2 who had stated that he could not say as to where Raj Narain was living at the time of occurrence. Even to recovery memo Ex. Ka. 15 prepared by S. O. Vijai Bahadur Singh does not disclose his address in specific terms, showing him as resident of Kothi of Dr. S. P. Dubey and it merely mentions him as resident of Civil Lines. P. S. Civil Lines Etawah. Under the circumstances, it would be difficult to hold that on the day of occurrence, Raj Narain Singhal P. W. 15 was residing in the garrage of the house of Dr. S. P. Dubey. It is also worthy of notice that the day when the occurrence took place, was a Sunday and the assertion of Raj Narain Singhal that he was returning to the house of Dr. S. P. Dubey after adminis tering injection to Sri Vijai Kumar Shukla, Advocate under the direction of Dr. S. P. Dubey is not borne out by any other evidence. In all fairness, the prosecution could have well examined Sri Vijai Kumar Shukla, Ad vocate to prove that Sri Raj Narain Singhal had actually administered injection to Sri Vijai Kumar Shukla Advocate at his house itself at about 9 P. M. on the day of occur rence but this was not done. Under the circumstances, the story as revealed out by Raj Narain Singhal that he was on his way back to house of Dr. S. P. Dubey after administering injection to Sri Vijai Kumar Shukla, Advocate at his house is shrouded in grave doubts. Another mitigating circum stances for the prosecution is the examination of Raj Narain under section 161 Cr. P. C. by the Investigating Officer Jokhu Singh as late as on the third day of the occutionce i. e. on 10. 8. 88 despite the fact that admittedly Raj Narain Singhal had remained avail able through out the day in the district hospital on 9th of August, 1982. Under the circumstance, this undue delay on the part of investigating Officer in examining Raj Narain Singhal u/s 161 Cr. P. C. on the third day of the occurrence has also diminished the evidentiary value of his- testimony. Moreover, his version of the occurrence that Brijendra had corner tumbling down from the stairs and go up and tried to struggle ahead but had fallen down on the ground in one corner of the Chabutra is not at all worthy of being believed considering the injuries sustained by Brijendra Kumar includ ing fracture in his vertebra which would have rendered him incapacitated to move at all as has been held by us above. Upon an over all consideration of his statement in view of the Infirmities as shown above, no reliance can be placed to his testimony. It can easily be deduced from his evidence that he is not a disinterested trust worthy witness as to rely upon his testimony for the conviction of the appellants. Here it is proper to advert to the testimony of Umesh Chandra Mishra, P. W. 2 who did not stale in his evidence that he had seen the three accused persons on the ground floor when he was being taken to the hospital after the occurrence though he was stated in his evidence that after the arrival of Shagwat Dayal Dubey and others he had gone with them inside the Drawing Room and Dining Room, from the Verandah and had seen Dr. S. P. Dubey and Smt. Manorama-Dubey lying in injured state. It is difficult to believe that Umesh Chand ra Mishra P. W. 2 whose condition was riot so serious, could nor have noticed the three accused persons whose arrest had been effected near the staircase on the ground floor while Umesh Chandra Misra being taken to the hospital through the stair-case. Under the circumstances as deliberated above, the possibility that the three accused persons viz. Ashok Dixit, Chaman Lal and Brijendra Kumar were not arrested on the ground floor of Ci. S. P. Dubey, gains the upper hand and the possibility that accused Brijendra Kumar was found in an injured state by the Police on the First Floor of the house of Dr. S. P. Dubey, cannot be elimina ted from consideration. Here we would advert to a most important feature of the case. According to Vijai Bcjnadur Singh, Station Officer, Civil Lines Police Station and also Raj Narain Singh, Sri Satendra Gupta, Advocate was along with them at the time when the accused persons Ashok Dixit Chaman Lal and Brijendra Kumar were taken into custody, but inex plicably, the prosecution did not care to examine Sri Satendra Gupta Advocate in order to lend assurance to the evidence of Vijai Bahadur Singh and Raj Narain on all material particulars. We have not come across any reason on the record dished out by the prosecution for not examining Sri Satendra Gupta. He was a material wit ness in order to bear out the arrest of the accused persons in the manner as deposed by Vijai Bahadur Singh and his testimony would have injected life into the prosecution case. The trial court has also fallen in error in not examining Sri Satendra Gupta Advocate as a Court witness as it was the duty of the Court to get at truth by summoning the witness in the dock. The net result boils down to the fact that the prosecution has miserably failed to establish by cogent, independent, disinterested and credible evidence the three-three accused persons, namely, Ashok Dixit, Chaman Lal and Brijendra Kumar were arrested at about 9 p. m. on the ground floor of the house of Dr. S. P. Dubey. Likewise, Pandey Ji, said to be a tenant of Dr. S. P. Dubey, occupying one of t he upper portion beside the portion of Dr. S. P. Dubey and who was admittedly present in his portion at the time of occurrence and close to whose door, Munnu Singh injured was found lying in injured state, has also not been examined by the prosecution without assigning any reason. Pandey Ji was an equally material witness in as much as his help was sought in removing the injured to the Hospital and he assisted in taking the injured to the hospital through the state case. He would have proved the presence of other witnesses at the place of occurrence as well as the arrest of the accused persons enumerated above on the ground floor of the said house. As stated supra no plausible explanation has been dished out by the prosecution for not examining both the material wit nesses namely Sri Satendra Gupta Advocate and Pandey Ji Under the circumstances as indicated above, we feel that the prosecu tion has not been able to bear out that the three accused persons, Ashok Dixit, Chaman Lal and Brijendra Kumar were arrested by Vijai Bahadur Singh Station Officer, Police Station Civil Lines and others on the around floor of the house near the stair - case at about 9 p. m. on 8. 8. 82. Now reverting to where we had left, in the instant case, tha eye witness account has been given out as stated supra by Umesh Chandra Misra P. W. 2 maternal uncle of Smt. Manonma Dubey and Km. Ritu P. W. 3 minor daughter of Dr. S. P. Dubey. Umesh Chandra Misbra P. W. 2 is the maternal uncle of Smt. Manorama Dubey, wife of Dr. S. P. Dubey and he used to live with Dr. S. P. Dubey at his house. He is also an injured witness. Dilating upon the initial phase of the events preceding the events of the day of occurrence, he deposed that Smt. Manorama Dubey was the daughter of his sister and he used to live with Dr. S. P. Dubey as Dr. S. P. Dubey and his brother Bhagwat Dayal Dubey were in set up a chemical Industry and the construction work for the building of the aforesaid Industry was under way in those days. He stated that at about 9 p. m. , on 8. 8. 82 he was sitting in the Drawing Room in the upper storey of the house of Dr. S. P. Dubey and at that time Dr. S. P Dubey, Smt. Manoroma Dubey and their daughter Km. Ritu were also there. A kerosene lamp was burning in the Drawing room on account of there being no electricity in the house. Near about the same time he heard the voice of Munnu Singh compounder ceiling upon Dr. S. P. Dubey to examine the patients going upstairs and upon his cell Dr. Dubey went towards the stair-case. After a short while, he heard the firing and he Smt. , Manorama and Km. Ritu all stood up. Meanwhile Dr. Dubey came back briskly and after crossing the drawing room and the bed room, he fell down there near tne Dining Table. At the same time, three persons entered the Drawing Room. While firing behind Dr. S. P. Dubey and out of them the witness stated that Ashok Dixit is present in the court and he knew him from before. The witness pointed towards Chaman Lal accused and stated that he was also amongst the assailaits. He further depused that after entering the Drawing room, one of the three assailants had fired at Smt. Manorama Dubey. She was hit by the firing and thereafter. Ashok Dixil had fired at him and also on Smt. Manorama Dubey and he had also sus tained injuries. The assailants at the same time While firing went inside near Dr S. Dujey. He further stated that he became panicky and sertified and came out in the Verandah where he fell down. He again heard the reports of firing coming out from inside and, therefore, he heard the firing from the side of stair-case whereupon he thought that the assailants were moving out. He further stated that after a short while Bhagwat Dayal Dubey his two sons and some other persons arrived up-stairs and at the same time, electrie supply in the house was restored. He then alongwith Bhagwat Dayal Dubey and others were inside the Drawing Room where he saw that Manorama Dubey was lying inside the Drawing Room while Dr. S. P. Dubey was lying on the floor near the Dining Table. He also stated that Munnu Singh compounder had aiso come from the side of si airs'and after receiving the injuries, he fen down in the verandah situate towards the portion where Pandey Ji was a residing as a tenant of Dr. S. P. Dubey. He further stated that when he alongwith others went inside, Ritu came put from beneath cot placed in the bed room and while clinqinn with Bhagwat Dayal Dubey. She began to cry. Thereafter, all the injured persons including him were taken to the hospital where hjs injuries were examined, It is significant to mention here that Umesh Chandra Mishra, P. W. 2 stated in his examination-in-chief that he used to live with Dr. S. P. Dubey in his house and he knew Ashok Dixit from before the occur rence. He further admitted that Ashok Dixit was a relative of Dr. S. P. Dubey anc ne was a regular visitor to his house. Umesh Chandra Misra was admittedly examined by the Investigating Officer on 9. 8. 82 but curiously enough, he did not disclose the names of the assailants and when in cross- examination, he was confronted with his statement recorded u/s 161 Cr. P. C. he conceded that he did not disclose the names of the assailants to the Investigating Officer as the Investigating Officer did not ask him to divulge the names of the assailants. Under the circumstances, it is not at all believeable that Umesh Chandra Mishra did not disclose the name of Ashok Dixit to the Investigating Officer because the Investigating Officer did not ask him to reveal tne names of the assailants. Umesh Chancira Mishra has also stated in his examina tion in chief that Ashok Dixit was known to him from before and he had also fired at him. Under the circumstances, the moon disclosure of the name of Ashok Dixh to the Investigating Officer as one of the assailants by Umesh' Chandra Mishra in his statement under section 161 Cr. P. C. is eloquent enough to show that Ashok Dixi't was not amongst the assailants and the subsequent statement of Umesh Chandra Mishra in 'the court nomina ting Ashok Dixit as one of the assailants is hardly of any consequence. We, therefore hold that the statement of Umesh Chandra Mishra that Ashok Dixit was one of the assailants, cannot be relied upon and thus the prosecution has failed to bear out from the evidence of Umesh Chandra Mishra P. W. 2 that Ashok Dixit was one of the three assailants. Another circumstance: worthy of consideration is that Umesh Chandra Mishra did not state anywhere in his evidence that he had seen the three accused persons on that day on the ground floor while being taken to the hospital through the stair-case Under the circumstances, the evidence of Umesh Chandra Mishra cannot be relied upon for the conviction of Chaman Lal as admittedly, Chaman Lal accused was not known to him and there has been no identification parade of the accused Chaman Lal in this case. In this view of the matter, the evidence of Umesh Chandra Mishra also does not assist the prosecution in order to bring home the guilt to the accused Chaman Lal in the absence of identification proceed ings. The narration of the actual occurrence as contained in the testimony of Umesh Chandra Mishra is also not corroborated by the First Information Report lodged by Bhagwat Dayal Dubey who had deposed that he had narrated the occurrence in the First Information Report upon the informa tion furnished to him by Munnu Singh injured but Munnu Singh has not been examined in the case in order to substantiate the -version of the occurrence as given in the F. I. R. Under the circumstances it cannot be held that the version of the occurrence given by Umesh Chandra Mishra finds corroboration from the First Information Report lodged by Bhagwat Dayal Dubey. In this context, it would be appropriate to advert to the evidence of Ram Ashrey Pandey P. W. 17, Battastic Expert who deposed that the metallic bullet Ex. E. B. I, recovered from the dead body of Dr. S. P. Dubey and metallic bullet Ex. E. B. 2 extracted from the body of Smt. Manorama Dubey were not fired from the pistol Ex. IV Ex. X and Ex. XI alleged to have been recovered from the accused Ashok Dixit, Chaman Lal and Brijendra Kumar respectively. Thus, the recovery of the metallic bullets E. B. 1 and Ex. B. 2 recovered A-1q from the dead bodies of the two deceased respectively has remained a mystery as the prosecution evidence has failed to pin point the weapon or weapons with which they were fired at the two deceased persons. Admittedly, firing had occurred at the time when there being no electricity, the entire house of Dr. S. P. Dubey was plunged into darkness. This fact is also borne out from the evidence of Ram Singh P. W. 9, Sub-station Operator of electricity Board, who stated that under orders from superior authorities at Kanpur, he had disconnected electricity supply to the city of Etawah between 7. 55 P. M. to 9. 02 P. M. on 8. 8. 82. It appears pro bable that Umesh Chandra Mishra on account of the absence of light, could not notice or locate all the assailants who were more than three in number as there is also no mention of light fn the First Information Report. In view of the circumstances as detailed above, it is probable that the assailants except Brijendra Kumar accused who appears to have fallen down on the floor in the upper storey of the house after sustaining the injuries, had succeeded in escaping taking advantage of the darkness which had envelop ed the house after having caused injuries to Dr. S. P. Dubey, his wife Smt. Manorama Dubey, Umesh Chandra Mishra and Munnu Singh. As mentioned above, Umesh Chandra Mishra did not state that while being taken to the hospital through the stair-case, he had seen the three accused persons on the ground floor of the house. It cannot be believed that Umesh Chandra Mishra while being removed to the hospital could not notice the presence of the arrested accused on the ground floor of the house if really the accused persons had been arrested as the injuries which he had sustained were not so serious as to render him incapable of any knowledge of his surroundings. Accord ing to him, he had gone inside the Drawing room and bed room along with Bhagwat Dayal Dubey and others after the occur rence in order to find out as to what had actually happened inside. This shows that condition of Umesh Chandra Mishra was not serious. The evidence of Umesh Chandra Mishra, therefore, bristfes with glaring discrepancies and is not worthy of being acted upon for the conviction of the appellants. The last ocular witness is Km. Ritu, daughter of Dr. S. P. Dubey (deceased) She is a child witness aged about 11 years on the day of her examination in the court which took place after 1, 1/2 years of the occurrence in the instant case. The learned Sessions Judge before examining her, had subjected her to certain questions in order to test her intelligence and from her replies, he gathered that she had good understanding of the facts of the case and she can appear as a witness. However, no oath was adminis tered to her. Km. Ritu has corroborated the state ment of Umesh Chandra Mishra. She deposed that her father and mother were done to death about 1, 1/2 years ago and on the day of occurrence before her mother and father were assaulted, she along with them and uncle Umesh Chandra Mishra were sitting in the Drawing Room of her house and a lamp was burring there an account of there being no electricity in the house. The time was about 9 p. m. Meanwhile, Munnu Singh compounder called out her father from the ground floor that certain patient had come and he might examine him. Upon the call, her father went outside the Drawing Room and soon after, she heard I was or three reports of firing and her father hurriedly came back and went straight towards the direction where the Dining Table was placed. She further stated that her father was followed by the assailants in the Drawing Room and one of them was known to her from before namely, Ashok Dixit, who used to come to his father quile often from before. The three assailants resorted to firing on coming inside and on account of the firing, uncle Umesh Chandra Mishra and her mother sustained injuries and she then concealed herself under a cot in the Bed Room. After firing upon Umesh Chandra Mishra and her mother the three culprits went near her father and they fired on him three or four times and after firing the assailants went out through the door close to the Dining Table. During the course of her statement in the court, she pointed towards Ashok Dixit and Chaman Lal and said that they were. the assailants who had resorted to firing in her house. She further deposed that at I he time when the occurrence had taken place, a lantern was burning on the Dining Table. She further stated that after the Gad mashes had gone, her uncle, her brother Mikku and Sanjay and Satendra uncle came on stairs and when they had called her, she came out from beneath the cot under which she had concealed herself. She further stated that electric supply was restored to her house as soon as her uncle and others came upstairs. She further deposed that, thereafter, her uncle had removed her mother, father, uncle Umesh Chandra Mishra and Munnu Singh to the hospital and thereafter, Bibi, Didi and her aunt also arrived there who took, her to the house of her uncle. It was also stated by her that while going to her uncle's house, she had seen a man lying there and two persons were arrested by the Police beneath the stair-case on the ground floor of the house. She further stated that they were the same three persons who had opened fire on her father, mother, Mamaji and Munnu Singh. She pointed out towards Ashok Dixit and Chaman Lal present in court and slated that they were the assail ants. Km. Ritu is of course a child witness being aged about 9, 1/2 years when the occurrence had taken place and at that time she was studying in V standard. She is no doubt a natural witness of the occurrence and her presence in the house at the time of occurrence is indubitable. Judicial prece dents are not wanting that a child witness can very well be relied upon in order to lend corroboration to the evidence of another eye witness but in the present case, belated examination of Km. Ritu by Jokhu Singh Arya, investigating Officer on the third day of the occurrence has diminished the evidentiary value of her testimony to a great extent and the only other eye wit ness viz. Umesh Chandra Mishra is not a reliable witness. Jokhu Singh Arya who took up the Investigation of the case at police station Civil Lines at 10. 15 P. M. on 8. 8. 82, did not care to record the statement of Km. Ritu till 10. 8. 82. Here, it is worthy to note that after the occurrence, Km. Ritu was removed to the house of her uncle Bhagwat Dayal Dubey situate at a distance of about 60 paces from the house of Dr. S. P. Dubey oh the other side of the road where she stayed throughout the night and upto 10. 8. 82 when she was examined by the Investigating Officer. No bear out the above, we may refer to the evidence of Jokhu Singh Arya P. W. 15 who admitted in his evidence that he took up the investigation of the case in his hand immediately after registration of the case at 10. 15'p. m. at Police Station Civil Lines and after recording the state ment of the Head Constable at the Police Station, he reached the scene of occurrence which admittedly lies at a distance of one Km. from the Police Station but he found (he house of Dr. S. P. Dubey locked and there was none at his house except the constables who were i guarding the place. Jokhu Singh Arya, Investigation Officer was normally expected to examine Km. Ritu during the night itself when she was available at a stones throw distance i. e. , at about 60 paces in the house of her uncle. According to the Investigating Officer, he again visited the scene of occurrence next day and inspected the place of occur rence, made recoveries of incriminating articles etc. and also prepared two site-plans of the places of occurrence in the house on the pointing of Bhagwat Dayal Dubey and Vijai Bahadur Singh, Station Officer. Even then, it did not occur to Jokhu Singh Arya to examine Km. Ritu who was very much available at a short distance in the house of her uncle who was with him during spot inspection. Here, it is worthy of mention that even for preparation of site plans of the First Floor and the ground 4 floor of the house of Dr. S. P. Dubey, Km. Ritu was a very material witness being ocular witness in order to point out various important places in the house, but surprisingly enough, Jokhu Singh Arya, remained contended with the presence of Bhagwat Dayal Dubey and Vijai Bahadur Singh, S. O. who were not the eye witnesses of the actual occur rence. These are the circumstances which strongly suggest that there was gross recklessness with which the investigating officer had conducted the Investigation in the case. Jokhu Singh Arya did not examine Km. Ritu even on 9th August 1982 though he must have remained at the place of occurrence for hours together. The suggestion of the defence that Km. Ritu in all probability must have been asleep at the time of occur rence being a child, is loaded with substance and considering her delayed examination by Investigating Officer, it appears probable that Km. Ritu might not have witnessed the actual assault on her parents, Umesh Chandra Mishra and Munnu Singh Compounder Km. Ritu, no doubt, had named Ashok Dixit as one of the three assailants but it cannot be believed that if Ashok Dixit had been amongst the assailants, her uncle Umesh Chandra Mishra would have omitted to name him in his statement under section 161 Cr. P. C. recorded by the Investigating Officer on 9. 8. 82. Under the circumstances, the naming of accused Ashok Dixit by Km. Ritu as one of the three assailants is not worth reliance for bringing home the guilt to Ashok Dixit accused. She has admitted in her evidence that she did not know the other two assail ants from before the occurrence. Under the circumstances, her pointing finger towards Chaman Lal in the court, is of no consequence in the absence of any identification proceed ings of the accused Chaman Lal. She has no doubt stated that when she came down the stair-case from the Upper Storey after the occurrence for going to the house of her uncle, she had seen one man lying on the ground and the other two in the custody of Police but her belated examination and the physical infirmity of Brijendra accused coupled with the absence of blood from the stair case and on the ground floor have rendered her testimony in the ring of high doubts. Moreover Umesh Chandra Mishra did not state that he saw the accused Ashok Dixit, Chaman Lal and Brijendra Kumar arrested on the ground floor of the house shortly after the occurrence. Under the circumstances, the evidence of Km. Ritu against Chaman Lal accused also falls on the ground and it cannot thus be believed. Taking into consideration the infirmities glaringly pointed out above in her evidence we hold that Km. Ritu is not credible witness. On the other hand, her evidence is redolent of her being tutored and as such it does not radiate confidence. Rather the possi bility that she has been tutored to give out the evidence in support of the prosecu tion at a belated stage, cannot be ruled out and as such her evidence cannot be formed as a safe basis for convicting the appellants in the absence of corroboration from other witnesses which is lacking in this case. Moreover the testimony of a child witness requires utmost care and caution and generally it is not held safe to place implicitly reliance without her evi dence being corroborated by other independent and disinterested sources. Here we may further observe that it is highly doubtful that when there was no light at the time of occurrence in the house there could be a clear recognition of the assailants In that melee. It is just possible that she was lying on the bed in the bed room at the time of occurrence and as soon as the assailants set upon their victims, she might have taken shelter below the bed out of fear, else she would also have been made a target. The lodging of the First Information Report 8. 8. 82 at 10. 15 p. m. itself appears to be shrouded in doubts. In this context we may advert to the deposition of Ram Raj Singh, P. W. 4 who deposed that on the day of occurrence, he was posted as constable at Police Station Civil Lines and after regis tration of the present case, the inquest book and a copy of the FIR and other papers were handed over to him by the Head Con stable for being delivered to Daulat Ram S. I. who was then on convoy duty at Saraiyan out- post. He along with constable Udai Narain had handed over the same to Sub Inspector Daulat Ram Pal at Saraiyan out post. Daulat Ram Pal P. W, 11 deposed that at about 11. 30 P. M. on 8. 8. 82 while he was on duty at out-post Sariayan, constable Ram Raj Singh and Udai Narain delivered register of panchayatnama copy of the F. I. R. and other papers. Thereafter, he conducted inquest next morning on the dead bodies of Dr. S. P. Dubey and Smt. Mano-rama Dubey in the hospital. He further stated that he had sent the dead bodies of the two deceased persons to the mortuary through constables Ram Raj Singh and Udai Narain along with the relevant papers in sealed covers. It was also stated by him that he had sent a copy of the F. I. R. to the Doctor along with the inquest papers and he had mentioned the same at SI. No. 8 in the inquest reports Ex. Ka 19 and Ka 25. Daulat Ram Pal further stated that the special report of this case was also sent to the authorities concerned at 11. 30 p. m. on 8. 8. 82 from P. S. Civil Lines through constables Shiv Narain P. W. 14 as this finds mention in G. D. No. 27 of the Police Station which was before him at that time of his examination. In cross-examination he admitted looking into the general diary that Shiv Naresh Constable who had taken (he special report for delivery to the officers concerned, returned to the police station on 9. 8. 82 at 9. 05 A. M. which is borne out from G. D. entry Ex. Kha 1. During the course of cross examination he also admitted that he had no personal knowledge as to when constable Shiv Naresh left from Police Station Civil Lines, with the special report as he was not present at that time. The witness stated that the special report of the case is sent to District Magistrate, the Senior Supdt. of Police the Circle Officer, the Sub Divisional Magistrate and all these officers were resid ing at Civil Lines within a radius of two kilometers from the Police Station, Civil lines at the time of occurrence. Dr. Rajendra Singh, P. W. 8 who had conducted autopsy on the dead bodies of Dr. S. P. Dubey and Smt. Manorama Dubey, categorically denied to have received a copy of the F. I. R. alongwigh the inquest reports in connection with the post mortem of the two deceased. He pointed out that there was mention in the list of papers given in the inquest report about sending of the First Information Report. He further stated that he had also signed all the papers number ing nine sent by the Sub Inspector in connec tion with the post mortem of the deceased. It may be noted that' both the said inquest papers are on the record of the case. The doctor has also staled that there is a mention in the list of papers in the end about sending of the copy of the First Information Report. As stated supra, the doctor had signed all the papers sent by the Sub Inspector but there was no copy of the F. I. R. found among these papers. The statement of Dr. Rajendra Singh has not been challenged by the prose cution in his evidence. In view of the above circumstances, it transpires that no copy of the First Information Report was sent to Dr. Rajendra Singh P. W. 8 along with the inquest papers and it was deliberately mentioned in the list of papers as such by Daulat Ram Pal, Sub Inspector in order give the impression that the First Information Report was already in existence at that time of preparation of inquest on the dead bodies of the two deceased. Even the sending of special report at 10. 30 p. m. on 8. 8. 82 to the authorities concerned is not free from doubt. The G. D. entry indicating about sending of the special report was exhibited in this case and instead it was orally stated before the court by looking into the case diary by Daulat Ram Pal- PW. 11. Neither the author of the said entry was produced nor his handwriting was got proved. As mentioned above, the prosecution has sought to prove the entry through Sub Inspector, Daulat Ram Pal in whose presence admit tedly the said entry was not written at the Police Station. Moreover, the contents of G. D. entry Ex. Kha. 2 regarding the return of constable Shiv Naresh to Police Station Civil Lines at 9. 05 A. M. on 9. 8. 82 after delivering the special report to the authorities concerned appears to have been fabricated in order to justify that the First Information Report was lodged at 10. 15 A. M. This entry Ex. Kha 2 is with regard to the return of Surendra Singh and Daulal Ram Pal Sub j Inspectors at the Police Station Civil Lines j at 9. 05 A. M. on 9. 9. 82 after investigation in some other case and in the last line of3 the said entry, it is mentioned that constable Shiv Naresh arrived after delivering of the special report to the Authorities concerned. There is no reason why a separate entry was not made regarding the return of con stable Shiv Naresh at the Police station in the general diary and instead it was added in the last line of the G. D. entry regarding the return of Sub Inspector Surendra Singh and Daulat Ram Pal. This circumstances clearly points out that sending of the special report at 10. 30 p. m. on 8. 3. 82 from P. S. Civil Lines. to the authorities concerned through constable Shiv Naresh, P. W. 14 is highly doubtful. Under the circumstances as discussed above, it is difficult to hold that the First Information Report of the occurrence was lodged at the Police Station at 10. 15 P. M. on 8. 8,82 as alleged by the prosecution. Besides, no recording of the statement of the prosecution witnesses and also of the accused on 8. 8. 82 by the Investigating Officer is also a very strong circumstance to suggest that no First Informa tion Report of the occurrence was lodged at 10. 15 P. M. on 8. 8. 82 as alleged by the prosecution. Even the lodging of the First Information Report at 11. 00 p. m. by Vijai Bahadur Singh S. O. at Police Station Civil Lines regarding the arrival of the accused Ashok Dixit, Chaman Lal and Brijendra Kumar along with the recovered arms and ammunition is also subject to grave doubts. If really the accused had arrived at the Police Station, Civil Lines at 11 p. m. there was no earthly reason for the Investigating Officer Jokhu Singh Arya not to have examined them during night. Under the circumstances, the alleged lodging of the First Information Report at P. S. Civil Lines at 10. 15 p. m. by Bhagwat Dayal Dubey and also of the report lodged by Vijai Bahadur Singh, Station Officer at 11 p. m. with reference to arrival of all the three accused with recovered arms and ammunition, appears to have been anti timed and as such reliance cannot be placed on the general diary entries of the Police Station. Once it has been shown that general diary entries of the police station regarding registration of the case and forwarding of the special report to the authorities con cerned and the return of the constable who had taken the special report for being delivered to various authorities is subject to doubt, the courts may draw a legal presump tion that the official acts have not been duly performed by making regular entries in the public documents at the police station and thus, the investigation of the case is rendered highly suspect and tainted in this Jokhu Singh Arya P. W. 16 Investigating Officer as shown above, has committed gross and severe lapses in the conduct of the Investigation in this case which con strains this court to animadvert his conduct. As deposed by him the First Information Report i of the occurrence was lodged in his presence at 10. 15 p. m. on 8. 8. 1982 at the Police Station Civil Lines. He did not care to record the statements of other witnesses of the occu rrence viz. Umesh Chandra Mishra Munnu Singh and Km. Ritu and of the First Informant Bhagwat Dayal Dubey during the night and also of the accused Ashok Dixit, Chaman Lal and Brijendra Kumar though according to the prosecution evidence, they had been arrested on the spot at about 9 p. m. and were brought to the police station by 11 p. m. on 8. 8. 82. Not to speak of others, even the statement of Km. Ritu, the star-wit ness of the prosecution was not recorded by him on 9. 8. 1982 though she was very much available to him at a short distance of about 60 paces, while Jokhu Singh Aiya was making spot inspection and preparing site-plans etc. at the place of occurrence. We have also examined the case diary prepared by the Investigation officer Jokhu Singh Arya and we find that second Parcha of the case diary which contains the statements of Bhagwat Dayal Dubey P. W. 1, Umesh Chandra Mishra, P. W. 2, Vijai Bahadur Sinqh P. W. 7, Raj Naratn Singhal, P. W. 15, Daulat Ram Pal P. W. 11, accused Ashok Dixit, Chaman Lal and Brijendra Kumar, ,is conscious by the absence of any signature of the Circle officer. Under the circumstances, the very preparation of the case diary at that time as alleged by the prosecution is tinged with grave doubts. The conduct of Jokhu Singh Arya, the investigating Officer of this case is not unimpeachable and above-board as the investigation is brushed with the taints of grave doubts which is easily visible from a careful scrutiny of his testimony in the light of that acts and circumstances of the case as shown above. Here we may observe that the investigation is the very foundation of the prosecution case and if the prosecution case is set up on a shaky foundation the entire edifice would collapse. It is from his evidence that he has with held the time facts from seeing the light of the day and in order to give a cover to those true facts, he concocted and presented a twisted picture of the case to the utmost detriment of the prose cution case. Now adverting to the conduct of Vijai Bahadur Singh, Station Officer Police station Civil Lines, Etawah we feel that his conduct is alsp tarred with the same brush as that of Jokhu Singh Arya and he also deserves to be censured. It is highly improbable and rather does not fit in with the normal human conduct that Vijai Bahadur Singh, Station Officer would not have gone up-stairs after the accused had been over- powered and arrested on the ground floor of the house soon after the occurrence. This conduct of Vijai Bahadur Singh also reflects grave doubts about the arrest of the accused Ashok Dixit, Chaman Lal and Brijendra Singh on the ground floor of the house of Dr. S. P. Dubey at 9 p. m. on 8. 8. 1982. Under the circumstance, the varsion of accused Ashok Dixit that he was picked up from his house in the morning of 9. 8. 82, appears to be probabje keeping in view the statement of Ravindranath Tiwari, D. W. 2 who deposed on behalf of the defence that the police had taken Ashok Dixit from his house in the morning on 9. 8. 1982. Once the arrest of Ashok Dixit on the around floor of the house of Dr. S. P. Dubey at about 9 p. m. on 8. 8. 1982 has been rendered suspect, the evidence testifying to the alleged recovery of mouser pistol Ex. IV from the possession of accused Ashok Dixil cannot be relied upon and consequently the opinion of Ram Asrey Pandey P. W. 17, the Ballastic Expert to the effect that the metallic bullet Ex. E. B. 3 extracted from the dead body of Smtl Manorama Dubey was fired from mouser pistol Ex. IV looses its credibility and value and, thus, the prosecution has failed to adduce such evidence that could unerringly point to the accused Ashok Dixit for having committed the crime or for having a hand in the crime and as such we hold that prosecution has not been able to link the accused with the crime, "for having committed the crime or for having a hand in. the crime and as such we hold that prosecution has not been able to link t he accused wit h t he crime. The learned counsel for the complainant Sri C. S. Saran has strenuously urged that even if the alleged arrest of Ashok Dixit, Chaman Lal and Brijendra Kumar on the ground floor of the house of Dr. S. P. Dubey by the Police is not worth reliance by the court, there are other evidence on the record which can very well be acted upon to base a conviction of the appellants in this case. The learned counsel submitted that the court can safely rely on the evidence of Km. Ritu P. W. 3 coupled with drawing, presumption that the official acts have duly been performed with regard to prep aration of regular entries in the general diary, the registration of the case and the forwarding of special report to the higher authorities and also of the return of constable Shiv Naresh P. W. 14 who had taken the special report to the authorities concerned. To fortify his contention, the learned counsel has placed reliance on Sonelal and others v. The State of U. P. AIR 1978 SC 179. We are unable to accept the submissions made by the learned counsel considering that in the instant case, it has been fully shown by the defence that the official act of lodging of the First Information Report, the preparation of entries in the General Diary regarding registration of the case, the sending of special report to the authorities concerned and the return of constable at Police Station Civil Lines who had taken the special report at the time alleged by the prosecution, have not been duly performed and under the circumstances, we are unable to hold any legal presumption that the official acts have been duly performed in this case and we have also held the evidence of Km. Ritu as intrinsically unreliable. One more important feature, which requires to be set out here is that Brijendra Kumar accused had two gun-shot entry which obviously appear to be the result two separate shots, go unexplained by the eye- witness account as given out by the witnesses and this circumstance also makes a dent in the prosecution case. Before concluding we would like to quote a well known saying. All that glitters is not gold. True, there is evidence of injured witnesses in the instant case but the evidence of an injured witness or of an independent witness should not always be accepted as reliable taking it as a 'gospel truth on its face value unless it stands the test on the touch-stones of reliability. All that Fs necessary, is that the evidence of an injured witness or of an independent witness, should be unimpeachable, trust-worthy, cogent and convincing as to leave no room for reasonable doubt in the way of basing a conviction of the accused. Ultimately upon a conspectus of the facts and circumstances as detailed above, the order of conviction and sentence as recorded by the Special Judge (Addl.) Sess. Judge Agra) is unsustainable and the appel lants are liable to be acquitted. In the result, both the appeals preferred by the appellants Cheman Lal and Ashok Dixit, viz. Criminal Appeal No. 2742 of 1984 and No. 2743 of 1984 are allowed and the conviction and sentence as awarded to the appellants are set side. The appellants are in Jail. They shall be released forthwith, if not wanted in any other case. The Government Appeal No. 2338 of 1984 preferred by the State of U. P. seeking enhancement of the sentence awarded to the appellants is also dismissed being devoid of any merit. Before bidding adieu to the case in hand, we may observe that we are pained that this cold-blooded, gruesome and heinous double murder case is ending in acquittal for want of credible, unvarnished, disinterested and independent evidence, which is conspicuously lacking in the case. Modera ting our otherwise stringent comments upon the functional ability of the Investigating Agency in this case we may observe that it has not acquitted itself well in the instant case. Rather, it has acted in a manner which have heightened the doubts about the veracity of the prosecution case. Investigation by the Investigating Officer must be such, which may inspire confidence by his perfor mance of official act. Likewise, the conduct of Station Officer namely Vijai Bahadur Singh as well as the Sub Inspector Daulat Ram Pal is equally to be a non-adverted in the light of what has been observed in the preceding part of this judgment. It is just possible or it may be true that both Chaman Lal and Ashok Dixit might be assailants but the circumstances do not be speak of their guilt. There is a long distance between 'may and the fact that the prosecution has succeeded in bringing home the guilt to the accused persons. The evidence of ocular witness has been found either to be fringed with embellish ments or something which the witness have been tutored to depose. Their evidence has the propensity to demolish the prosecution case. In the instant case, there is neither the circumstances nor the disinterested and independent evidence which may have been eloquent enough to indicate that the appellants were the assailants in the light of the case as set up by the prosecution and in this view of the matter, the appellants cannot be put in peril or vexed for the specu lated offence which the prosecution has been fully unable to establish. In the present case the circumstances and the testimony of the witnesses were not such which could pierce through the veil and indicate the guilt of the accused persons. To reiterate again the conduct of police personnel conne cted with the investigating agency has had the propensity to demolish the prosecution case resulting in the acquittal of the appellants. .