A conviction cannot stand when evidence lacks consistency, identification credibility is questionable, and motive is not established.

JUDGMENT :

Vinai Kumar Dwivedi,J.

1. This Criminal Appeal has been filed against the judgment and order dated 10.07.1989 passed by Additional District and Sessions Judge, Gyanpur, Varanasi in Session Trial No. 37 of 1982 arising out of Case Crime No. 52 of 1981, under Sections 147 , 148, 149, 302, 120B IPC , police station Gyanpur, district Varanasi. By the impugned order, the Additional Sessions Judge has acquitted the accused Brahm Shankar, Vijay Shankar, Nirahoo and Awadh Narain and has convicted and sentenced the accused-appellant Bhola to life imprisonment under section 302 . Aggrieved by the judgment and order dated 10.07.1989 by which the accused- appellant Bhola was convicted under Section 302 , he filed the instant criminal appeal challenging the aforesaid judgment and order dated 10.07.1989.

2. In short compass, the facts of the case are that on 27.05.1981, a written report was given to the Inspector, Police Station Gyanpur, District Varanasi by PW-1 Lalmani Dubey alleging inter alia that there was enmity between him and Brahm Shankar @ Bechu. Due to old enmity, Brahm Shankar @ Bechu and Vijay Shankar @ Mothai alongwith three unknown persons came at his house from the North keeping lathi, danda and country-made pistol and attacked his cousin Aadhya Prasad and nephew Faujdar, who were sleeping at the door, by lathi-danda. The unknown person who wore kurta paijama fired from the country-made pistol upon his nephew Rakesh Kumar, who was also sleeping on the cot, which hit his chest and the blood started oozing. On hearing the noise of the fire-shot and screaming, he and Aadhya Prasad, Faujdar and younger brother Chaturgun and neighbours Phoolchandra Dubey, Shivshankar and Jayshankar and many people of the locality came at the spot. On seeing the aforesaid persons, the culprits ran towards the East direction. The complainant alongwith the persons gathered at the spot identified the accused persons Brahm Shankar and Vijay Shankar in the light of the torch. The first informant claimed that he can also recognize the three unknown assailants on seeing them. The assailants were chased but they could not be caught. Thereafter, the condition of the injured Rakesh Kumar started deteriorating and he was taken to the hospital but he died on the way.

3. On the basis of the aforesaid report, a case was registered as Case Crime No. 52 of 1981, which was proved as Ext. Ka-3. Investigation of the crime was started by the police. The investigating officer of the case recorded the statement of the witnesses of the crime. Panchayatnama and post mortem of the dead body of the deceased were conducted. After completing all the formalities of the investigation, investigating officer submitted charge-sheet against accused Brahm Shankar @ Bechu, Vijay Shankar @ Mothai and Nirahoo, which was proved as Ext. Ka-14. Thereafter, the charge-sheet was also submitted by the investigating officer against the accused-appellant Bhola which was proved as Ext.Ka-4.

4. The charge was framed under Sections 147 , 148, 149, 323 read with Section 149 IPC against the accused Bhola, Brahm Shankar @ Bechu, Vijay Shankar @ Mothai, Nirhoo and Awadh Narain by the trial Court on 31.03.1983. Against the appellant- accused Bhola, the charge was framed under Section 302 (simplicitor) by the trial Court. The charge was framed under Section 120B against the accused Nirahoo and Awadh Narain. All the accused persons in