The conviction based on unreliable partisan witness testimony and a fabricated dying declaration was set aside due to investigative flaws and lack of impartiality.

1This criminal appeal arises out of a judgment and order passed by learned Sessions Judge, Budaun, dated 11-8-1981, whereby the learned Judge has convicted the appellant Bhurey alias Kishan Pal to imprisonment for life under S.302, IPC and the appellants, Virendra Singh and Satyavir Singh to imprisonment for life under S.302 read with S.34, . As one other accused Jeet Singh died during the trial, he was not tried.

2. The prosecution allegations as mentioned in the FIR were that on 23-7-1980 at about 5 p.m. the informant Mahendra Pal Singh, PW - 1 was returning to his village after cremating Rajeshwar Singh's new born son accompanied by his elder brothers, the deceased Ram Singh and Dharam Pal Singh, PW - 4, and younger brother Brijendra Pal Singh and co - villager Chandra Pal. Deceased Ram Singh, was 15-20 paces ahead of the witnesses. When the prosecution party reached near a Government tube - well in the west of the village, Jeet Singh, the appellants Bhurey alias Kishan Pal and Virendra Singh, who were carrying country - made pistols and Satyavir Singh, who was armed with a licensed gun, fired from behind the corner of the 'gool' after giving a cry to the deceased Ram Singh. It was the fire from Bhurey's country - made pistol which struck the deceased, Ram Singh, on his back. He fell down as a result of the injuries. On the cries raised by the witnesses the accused proceeded in the direction of Dhaka jungle issuing threats. Ram Singh was taken in an injured condition on a cot to police station Ujhani and a report of the incident was lodged on 23-7-1980 at 7.40 p.m. by Mahendra Pal Singh (PW - 1) under S.307, IPC .

3. The report was taken down in the presence of SI Sukhpal Singh, PW - 5, who is the first investigating officer of this case. At about 8 p.m. PW - 5 Sukhpal Singh claims to have recorded the statements under S.161, Cr.P.C. of Ram Singh at the Ujhani Hospital. After that he recorded the statement of Mahendra Pal Singh, the informant of this case, Ram Singh died in Ujhani hospital at 9.10 p.m. in the presence of PW - 5, SI Sukhpal Singh. Because it was dark and the body had to be taken care of, the inquest was prepared the next morning at 6 a.m. The inquest (Ext. Ka 6), photo lash (Ext. Ka 7), challan lash (Ext. Ka 8), letter to the CMO (Ext. Ka 9), the sample seal (Ext. Ka10) were prepared by the I.O., PW - 5, SI Sukhpal Singh. After that at 7.30 a.m. the body was dispatched for post mortem to the mortuary through constable Tulsi Ram and HC. Kalloo. At 10 a.m. PW - 5, Sukhpal Singh, reached Sankari jungle where he recorded the statement under S.161, Cr.P.C. of Dharam Pal. He examined the spot and found blood lying there. He took the plain and blood - stained earth in his possession and kept them in separate containers (vide Ext. Ka 11), prepared the site plan (Ext. Ka. 12). Thereafter the investigation of this case was concluded by PW - 7, SI R. D. Sharma.

4. PW - 2, Dr. V. P. Kulshreshtha conducted the post - mortem on the body of the deceased, Ram Singh, on 24-7-1980 at 2.30 p.m. The body was of average built, rigor mortis was present all over the body. The eyes were closed and the whole body was pale. He found the following ante - mortem injuries :

'Multiple gunshot wounds of entries in an area of 9 cm x 7 cm on left side back middle 4 cm lateral to mid - line. Each wound measuring 1 cm x 1 cm x cavity deep with inverted lacerated margins, all wounds are separately counted except at one place where two wounds joined together (total number of wounds are eight 8). There is no blackening and tattooing around the wound bleeding present.

Note. - The wounds are dressed and medi