K. Narayan, J.:— One Ram Lakhan Singh son of Manohar Singh was murdered in the evening of 26-7-1978 at about 7 p.m in village Semauri, P.S Sultanpur Ghosh, District Fatehpur and at the same time, his gun and cartridges were also taken away by the miscreants. A first information report in respect of the occurrence was lodged at the police station Sultanpur Ghosh at about 20.30 p.m, the distance being 3 km. The F.I.R was lodged by the brother of the deceased against Hukum Singh, Harish Chandra Singh, Ghanshyam Singh and Bhola. They were tried after necessary investigation and submission of the charge-sheet and found guilty of the offence under Ss. 302/34 and 394, I.P.C and were sentenced to imprisonment for life and 4 years RJ under two counts by the judgment and order dated 21-6-1980 delivered by the IV Additional Sessions Judge, Fatehpur in S.T No. 170 of 1979. Aggrieved, by the conviction and sentence both, they have come in appeal before this Court.

2. The prosecution story in brief was that in the evening of 26-7-1978, Sri Ram Naresh Singh the brother of the deceased Ram Lakhan and Shatrughan Singh the son ofthe deceased were coming back to their home along with cattle that they had taken for grazing. The deceased Ram Lakhan Singh was behind the cattle on his horse. When the deceased was at the turn before the cattle shed of Sheo Lochan and Trilochan Pal and the witnesses were already some 25 steps ahead of him towards the North, there were two fires from behind Ram Lakhan Singh, thereupon he cried and the horse came running in front of the house of Mahabali Teli where Ram Lakhan Singh fell from the horse back. Hukum Singh, Harish Chandra Singh, Ghanshyam Singh and Bhola emerged from the house or cattle shed of Sheo Lochan and came to Ram Lakhan Singh. Both Bhola and Hukum Singh held guns and Harish Chandra Singh and Ghanshyam Singh Kattas. They all fired once each upon Ram Lakhan Singh killing him on the spot. The occurrence according to the F.I.R was also seen by Jhuri son of Chauba. However, none could go near the accused and the accused took away the gun and bandolier with 25 cartridges. The F.I.R also narrated that Hukum Singh used to claim a well situated in plot No. 714 which plot and well belong to the deceased and Ram Naresh Singh and for this reason, there was a bad blood between the two which had re-suited in proceedings under S. 107, Cr. P.C, though the same was compromised about an year back. The body of the deceased was taken to home over a cot and thereafter the F.I.R was sent to the police station. The investigation proceeded with a visit of the Sub-Inspector of police to the house and that spot etc. At house lion cloth and sacred thread of the deceased were taken in possession and blood stained and plain earth were also taken in police possession on the next day. The body of the deceased was sent for post-mortem examination which was conducted by (P.W 6) Dr. B.K Agarwal.

3. The prosecution examined (P.W I) Ram Naresh Singh, the informant and also the brother of the deceased (P.W 2) Shatru-ghan Singh, son of the deceased and (P.W 4) Jhuri as the witness of occurrence. The other witnesses were (P.W 3) Rang Pal Singh the scribe of the F.I.R (P.W 5) Chhotey Lal Shukla who had been Head Moharrir in July, 1978 and had prepared the chik report. Dr. B.K Agarwal (P.W 6) had conducted the post-mortem examination and (P.W 7) Kripa Shanker Pathak had investigated the case.

4. After considering the above-said evidence, the trial court recorded a finding of conviction.

5. Before us, the learned counsel for the appellants has assailed the judgment of the trial court on various grounds, mainly with the contention that the presence of the witnesses at the spot is not natural and should be looked upon with an eye of doubt. The line of cross-examination it seems, had also been directed to show and make out that the deceased was a man of questionable character, had many enemies and the motive suggested for the accused persons was itself ill-founded. The report of the post-mortem examination as well as the evidence of (P.W 6) Dr. B.K Agarwal was also assailed to show that there was no proper examination and the evidence was not worthy of reliance.

6. We will first take up the motive part. Needless to say that the motive is always a double edged sword, as it can be a reason for crime and at the same time a reason for false prosecution specially when the motives alleged are of ill-will and bad blood. However, here, where the position is a bit conflicting, as we shall mention below, these ordinary principles become less effective. Here the position is that according to the prosecution case the accused had a motive and the evidence does not make it out. The situation would thus obtain in a different manner.

7. (P.W 1) Ram Naresh Singh and (P.W 2) Satrughan Singh are the only male members of the family of Ram Lakhan Singh now left alive Ram Naresh Singh being the elder had taken burden of stating about the facts which could form the cause or motive of murder. The primary reason was based on the ground that the accused Hukum Singh claims the well situate in plot No. 714. It may also be mentioned that Hukum Singh, Harish Chandra Singh and Ghanshyam Singh are sons of Lok Pal Singh, Jjgar Lal Singh and Rudra Pal Singh respectively who had been real brothers being sons of Nand Lal Singh. One more brother Dharam Pal Singh was also shown but that is immaterial. In this way, a claim made by Hukum Singh was relied upon to be a claim of all but the fact is otherwise. Hukum Singh, when he was put this claim about the well in question in plot No. 714 has denied to have ever made such a claim. Bhola obviously said that he did not know about it and no other accused made any claim. This could have been, brushed aside as an effort of the accused to save their skin, but even the statement of (P.W 1) Ram Naresh Singh in this behalf simply indicates that this was being put to create some sort of motive, it was admitted by him that the accused do not belong to his family and the well in question was situated in his ancestral land. There has been never any litigation about the well. He has also admitted that he had installed his tubewell and engine in this well some three years before and the accused persons had never objected to it. This story about the well, therefore, is unfounded. The other enmity is said to be in the form a proceeding under Section 107, Cr. P.C This too was not well made out. Obviously there has been a proceeding but the statement of Ram Naresh Singh was that Ram Lakhan Singh was in one party and in the other party were the accused and Bhola. A little before this statement in the cross-examination, the examination in chief itself he had mentioned this proceeding to be with Lal Bahadur Singh and Bhola having, been with Lal Bahadur. Though these proceedings are said to have been with respect to the dispute ever the well, yet the copy of the application or report was not produced and this omission gains more weight to draw the prosecution case in view of the statement of a contradictory statement about party. It may be true that motive part is not very weighty evidence but what type of evidence is required for proof of fact has to be complied with and it cannot be given up by saying that it was unimportant and therefore, insufficient evidence was led. When a fact is alleged it needs proof and failure in respect of it would injure the case of the prosecution. Non production of documentary evidence when it could be and was bound to be available would give rise to an adverse presumption that if it was produced, it would have been derogatory for the case of prosecution. (P.W 1) Ram Naresh Singh was specifically asked if there was any ill-will between Ram Lakhan Singh and the accused after the compromise in proceedings under S. 107, Cr. P.C which he had already said were done with a free will and he stated that there was no reason of ill-will during this period. He had also stated that he was stating of the ill-will between the deceased and Hukum Singh on the ground that Hukum Singh had murdered Ram Lakhan Singh. This would give rise to a state of mind with Ram Naresh Singh that till the death of Ram Lakhan Singh he had no grievance or fear or ill-will with these accused persons but this would not be an agreement with his statement about the date of occurrence. It is that a little before in the evening, he had seen the accused and their sight had given him an impression of danger for life of Ram Lakhan Singh. The situation being self contradictory would only indicate that the witness is not stating about his own feelings freely and honestly.

8. We will again revert to the situation of absence of motive. It may be that if there is a direct testimony, the absence of motive may not weigh much but where there is an allegation of motive and failure thereof, it may partially fail the case of prosecution. Making no allegation is something different as every fact cannot be known to the prosecution but making a lot of allegation and inability to prove would give rise to a situation that the prosecution is not coming up with clean hands. It would not be a mere case of not proved but a situation disproved.

9. The next argument advanced on behalf of the appellants has been based on the probability of the presence of these two witnesses. In this behalf, it would be highly improbable that all the male members ofthe family would go to graze the cattle when the status of the person is said that they are cultivators of 50 bighas of land, Pradhan of the village and having near about 25 heads of cattle. This being only a generalisation may not be of much use in solitary manner but this aspect has to be considered with sever parts of statement of (P.W 1) Ram Naresh Singh and (P.W 2) Shatrughan Singh. According to (P.W 1) Ram Naresh-Singh, the cows of the family are taken for grazing by the Charwaha and buffaloes are taken by the members of the family, while (P.W 2) Shatrughan Singh stated that they had not been giving cattle to any Charwaha and formerly some six months before the occurrence they had a servant Sita Ram who used to take 4 oxen and six buffaloes and two calves for grazing. It is strange that oxen are to be taken for grazing rather on regular basis which is usual for cows, as during the day, oxen are usually kept busy in the fields and that labour is enough for them. Occasionally one may take out his ox for grazing when they are free but taking them out for this purpose on regular basis cannot be expected. (P.W 2) Satrughan Singh had also denied if his cattle were ever taken by any Charwaha in NAR (herd) though according to (P.W 1) Ram Naresh Singh, it was so done in respect of the cows. It is true that Satrughan Singh is a student but taking all the cattle by Charwaha is a regular feature and is always known to every member of the family. This story of presence of these two witnesses at the time of occurrence with the pretext of attending upon the cattle seems to be a lame excuse.

10. The other witness, namely, (P.W 4) Jhuri can also not be said to be a reliable person. The observations recorded by the trial court indicate that he is a man of very low intelligence. This is not a disqualification as nobody can improve upon it, but then he can be said to be a partisan witness right under the thumb of Ram Naresh Singh. His son Goverdhan was prosecuted for having assaulted one Sheo Raj and Harish Chandra accused here was a witness for prosecution while the case ended in conviction. Ram Naresh Singh and Satrughan Singh are two sureties for his son. His evidence should have been considered with these aspects in mind. It is true that every witness has interest in one party or the other and may not always be thrown away but his evidence is to be read with caution and in the instant case the evide; of Jhuri (P.W 4) was too much unnatural. Possibly he did not know anything beyond what he was given to understand. According to (P.W 1) Ram Naresh Singh he was coming back with his cattle while Jhuri has stated that he had already tethered them and was going to answer the call of nature. If hit cattle were present there, they could not be missed. The statement of Ram Naresh Singh this creates an impression that neither he nor Jhuri were present at the time of occurrence. Jhuri has nowhere stated about his house or location of himself at the time of incident. On the other hand it has been stated by Ram Naresh Singh that his house is situated towards the North and the pond of the village is shown towards the South, Assuming for the time being, the position could be that Jhuri was coming behind the deceased from the direction of the East as shown in the site plan. The situation thus would be that he would be in a position to see the accused right in the cattle shed of Sheo Lochan, but his statement is not to that effect. Even that would be the situation if he was coming after attending the call of nature which too has not been stated by him.

11. An eye upon the site plan Ext Ka-8 shows that there are houses of Mahadeo Bhangi, Mahadevi Bhangi, Sunder and several others. A fire of a gun is not a secret and anybody in village would peep out of his window at least to know as to what is happening. With such a situation the absence of any witness of the locality would speak in volumes.

12. We may also mention before concluding that the report of the post mortem examination prepared by (P.W 6) Dr. B.K Agarwal was vehemently assailed by the learned counsel for the appellants and the arguments in this behalf were not without foundation. Injury No. 3 was changed from one of exit to that of entry, not merely by making mention thereof from everted to inverted margins only but changing the absence of blackening and tatooing to presence thereof. Though much is not going to turn upon it in view of what has been stated above but alteration from absence to presence of blackening and tatooing, does indicate that possibly the Medical Officer was not looking to the body himself.

13. Apart from the above weakness in the report itself it was made out in the cross-examination of Dr. B.K Agarwal that the injury could have also been caused by a minimum of three shots. Where possibilities are both i.e injuries caused by three shpts or 6, the eye witness account is not to be thrown out for the probability but in view of the above said facts relating to the oral evidence, this change may also be for other reasons and for this the benefit should go to the accused appellants.

14. In view of the above observations, eye witness account was open to all doubts and for that matter the appellants should have been given benefit and acquitted of the charges. This appeal, therefore, should succeed. The appeal is allowed. The conviction and sentence recorded by the trial court are hereby set aside. The appellants are on bail. They need not surrender. Their bails and bonds are cancelled and sureties shall stand discharged.

15. Appeal allowed.