JUDGMENT 1. Jhabboo and Tribhuwan were convicted by the learned Sessions Judge, Sitapur, u/s 302 read with Section 34 of the Indian Penal Code and sentenced to transportation for life. They have come up in appeal. 2. The prosecution story as sought to be established at the trial was as follows: 3. Ram Kumar, Ram Gopal and Ram Bharosey were three brothers. Ram Kumar and Ram Gopal lived together in Arua, a hamlet of Beni Sarai Ram Bharosey appears to have separated from his two brothers. He had two sons, Mukta and Tribhuwan. They lived in Lakhaniapur. Ram Gopal died about 15 years before the occurrence which formed the subject matter of the trail in the Court below. Whatever property was left by him, including his holding, remained with Ram Kumar. 4. Some three years before the occurrence when the sons of Ram Bharosey Mukta and Tribhuwan came of age they demanded a share in the property left by Ram Gopal. Ram Kumar refused to part with any portion of it. This led to strained relations between the uncle and his nephews. The matter went so far that there was a marpit between them about a couple of years before the occurrence. A report about it was made to the police by Mukta and Tribhuwan and one Jhabboo Pasi who lived with them and worked for them. It was further alleged that the nephews had threatened to take revenge on their uncle. 5. According to the prosecution version on the 9th April, 1951, at about noon, while Ram Kumar and his son Ishwar Din were taking their cattle to the river Ghagra a small rivulet which flows by the side of Arua. Tribhuwan and Jhabboo Appellants came up from the west, armed with lathis to which gandasis were attached and began to assault him. They are said to have observed "we have got you to day and will give you a taste of what it means to treat us like this". Ram Kumar and his son Ishwar Din both raised an alarm. It being the time for harvesting crops, there were a large number of persons in the fields all around. They came up in response to the alarm raised and there upon the assailants left their victim and ran away in a westerly direction. Ram Kumar and his son Ishwar Din both raised an alarm. It being the time for harvesting crops, there were a large number of persons in the fields all around. They came up in response to the alarm raised and there upon the assailants left their victim and ran away in a westerly direction. Ram Kumar was badly injured He dropped down in the filed of Pt., Bachan Lal and became unconscious. One of his hands was chopped off and has not been found. Ram Kumar was carried home in a bullock cast. Apparently he regained consciousness after some time and named his assailants in the presence of a number of villagers. A first information report of the occurrence was made by Ishwar Din the same evening at 7 p.m. at police Laharpur, 8 miles distant. After narrating briefly the facts already stated Ishwar Din mentioned the names of five witnesses, Prag Ahir, Kandhai, Ahir, Kalka Ahir, Sankata Kurmi and Bhagwan Din, as eye-witnesses of the occurrence. He further mentioned that Sankata, Murli Brahman and Kallu Ahir were persons in whose presence Ram Kumar had named Tribhuwan and Jhabboo as his assailants. It would appear that Ram Kumar expired on the way to the thana. Investigation was taken in hand and as a result thereof the two accused named in the first information report were chalaned. After the usual magisterial inquiry they were committed to Sessions and tried for the murder of Ram Kumar. 6. The defence put forward on behalf of the accused was a denial of the charge. A suggestion was made on their behalf that four or five days before the occurrence which resulted in Ram Kumar's death, he had enticed away a Kanjar woman. That the Kanjars who were camping in the neighbourhood of the village had recovered this woman from Ram Kumar's house. Naturally they were much annoyed and had threatened Ram Kumar with dire consequences. In all probability Ram Kumar was assaulted by these Kanjars or some other persons at a place where no witnesses were present. Ishwar Din not knowing the real culprits had falsely named Tribhuwan and Jhabboo as the assailants because of the strained relations between the two branches of the family. 7. Curious as it may appear, none of the witnesses mentioned in the first information report was examined at the trial. Ishwar Din not knowing the real culprits had falsely named Tribhuwan and Jhabboo as the assailants because of the strained relations between the two branches of the family. 7. Curious as it may appear, none of the witnesses mentioned in the first information report was examined at the trial. it has been stated that five persons were named in the first information report as witnesses who had come up in responses to the alarm raised and seen Ram Kumar being assaulted by the accused. Three persons were named in whose presence Ram Kumar said that Tribhuwan and Jhabboo were his assailants: They were not examined at the trial. It may be mentioned that of the eight witnesses to whom reference has been made above Kalka, Sanker and Bhagwan Din were examined in the Magistrate's Court. They did not give evidence which was helpful to the prosecution. On the other hand it was stated that they had turned hostile. That may account for the failure of the prosecution to examine the eight persons mentioned in the first information report as witnesses at the trial, and a new set of witnesses, seven in number, were examined in place of those mentioned in the first information report The main witnesses called at the trial were Ishwar Din P.W.3, Hazari Lal P.W.4, Baiju P.W.5, Bhallu P.W.6, Bansi P.W.7, Kameshwar P.W.8, and Chheddu P.W.9. Of these Kameshwar, Baiju and Bhallu were disbelieved by the learned Sessions Judge. He disbelieved Bansi also except in part Relying mainly on the evidence of, Ishwar Din, Hazari and Chheddu, the learned Sessions Judge convicted the two Appellants and sentenced them as already stated. 8. It was strenuously argued by the learned Counsel for the Appellants that the evidence of the new set of witnesses called at the trial should not be believed. In any case it was of a character which could not be relied on implicitly and that his clients were at least entitled to the benefit of doubt. He laid stress on the fact that though blood-stained earth is stated to have been scraped from the field of Bachan Lal which, according to the prosecution version, was the place of the occurrence, this was not exhibited at the trial. He laid stress on the fact that though blood-stained earth is stated to have been scraped from the field of Bachan Lal which, according to the prosecution version, was the place of the occurrence, this was not exhibited at the trial. The earth alleged to have been scraped was not even sent to the chemical examiner or the Imperial Seroglogist for examination and we are left with nothing except "the list of recovery", a document prepared by the Investigating Officer Ex.5, which shows that blood-stained earth was scraped from the field of Bachan Lal and put in an earthen vessel and sealed. What happened to this so-called blood-stained earth and why it was not exhibited at the trial is not clear. Apart from that, we find no satisfactory explanation for the failure of the prosecution to examine at the trail the witnesses named in the first information report. Merely because some of them were examined in the Magistrate's Court and they did not give evidence helpful to the prosecution is in our opinion no good reason for not examining them at the trial. We can appreciate the difficulty with which the Public Prosecutor was faced when three of the eight witnesses named in the first information report were examined in the Magistrate's Court and were found to have turned hostile, but that does not account for the failure to call the remaining five witnesses. Of the witnesses who are examined at the trial in place of those named in the first information report, we find that three Hazari, Baiju and Bhalla, were examined by the Investigating Officer seven days after the occurrence. No explanation was furnished why the Investigating Officer delayed examining these witnesses for such a long time. 9. The next point which attracts attention in this case is the inability of the Investigating Officer to find the chopped off hand of the deceased Ram Kumar in Bachan Lal's field. Ishwar Din (Ram Kumar's son) according to his own statement was within a few paces of his father when the latter was assaulted. He admits that he did not see either of the two accused take away the hand which was choppedoff. He further stated that he did not notice it at the time of the occurrence, but found one of the bands missing after his father was taken home in a bullock cart. He admits that he did not see either of the two accused take away the hand which was choppedoff. He further stated that he did not notice it at the time of the occurrence, but found one of the bands missing after his father was taken home in a bullock cart. Thereupon he returned to the field of Bachan Lal and searched for the missing hand, but could not find it. We take it that the Investigating Officer must also have made every attempt to find out the missing hand. The mystery of the mishand has not been unravelled and the learned Counsel for the Appellants was fully justified in stressing this point in support of his content on that the scene of the assault was not Pt. Bachan Lal's field as alleged, by the prosecution. The failure to produce the blood-stained earth alleged to have been scraped from Bachan Lal's field, and the inability of Ishwar Din to find his father's hand in Pt. Bachan Lal's field when he went to search for it, lend strong support to the 'suggestion made by the learned Counsel for the Appellants. The evidence of the witnesses who claim to have seen Ram Kumar being assaulted in front of Bachan Lal's field should in these circumstances be subjected to careful scrutiny before it is accepted. Material evidence that could have established with reasonable certainly the exact place of the occurrence has not been produced. The circumstances relating to the disappearance of the chopped hand, suggest that the place of occurrence was not the field of Pt. Bachan Lal. 10. If we now turn to the evidence of the main prosecution witnesses on whom the learned Sessions judge has based the Appellants' conviction, we find that it is not trustworthy. According to P.W.4 Hazari Lal, both the assailants of Ram Kumar had covered their faces with cloth so that nothing except the tips of their noses could be seen. This would indicate that the assault upon Ram Kumar was premediated and that his assailants, whoever, they were, came after taking precautions to conceal their identity. This does not, however, fit in with the general set up of the prosecution case as we find it in the first information report. This would indicate that the assault upon Ram Kumar was premediated and that his assailants, whoever, they were, came after taking precautions to conceal their identity. This does not, however, fit in with the general set up of the prosecution case as we find it in the first information report. It will be recalled that according 10 Ishwar Din, who was with his father at the time of the assault, the two Appellants as they came up from the west made an observation which would suggest that it was by an accident that they had found Ram Kumar in circumstances when they could teach him a lesson Premeditation and preparation for the commission of the offence are wholly inconsistent with the general outline of the case as found in the first information report. 11. Another point which was stressed by the learned Counsel for the Appellants was that there was hardly any motive for the crime. In any case there was no sufficient motive for Tribhuvan and Jhabboo to kill Ram Kumar. Jhabboo had no personal grievance against Ram Kumar. He is a Pasi by caste who lives with Tribhuwan. May be that he works for him and is thus interested in him He had no personal quarrel with Ram Kumar. The dispute between the two branches of the family was also not a character which would in our opi(sic) furnish sufficient motive for such a dc(sic) assault by Tribhuman upon his u(sic) We know it from Ishwar Din th(sic) dispute about the property left by Ram Gopal arose three years before the occurrence. Ishwar Din would have us believe that here was a marpit between Ram Kumar on the one side and Mukhta and Tribhuwan on the other about two years before the occurrence. We do not find that there was any other incident during the interval that elapsed since that marpit. Thus in any case there was no immediate provocation given by Ram Kumar to the Appellants which could have induced them to perpetrate such a crime. On Account of unfriendly relations which subsisted between him and his cousin Tribhuwan, Ishwar Din's evidence cannot but be looked upon with grave suspicion. We have already made reference to the evidence of Hazari Lal and expressed the opinion that it does not fit in with the general set up of the case as disclosed in the first information report. On Account of unfriendly relations which subsisted between him and his cousin Tribhuwan, Ishwar Din's evidence cannot but be looked upon with grave suspicion. We have already made reference to the evidence of Hazari Lal and expressed the opinion that it does not fit in with the general set up of the case as disclosed in the first information report. There is some evidence of a reason for him to be ill disposed towards Tribhuwan. 12. P.W.9. Chheddu is not an eye-witness of the occurrence. All that he says is that when Ram Kumar was carried home in a bullockcart he heard him say that Tribhuwan and Jhabboo had belaboured him. He is not one of those persons who was named in the first information report and other witnesses who stated the something were disbelieved by the learned Sessions Judge. 13. Having considered the entire evidence carefully we are of opinion that the guilt has not been brought home to the Appellants. In any case the evidence adduced is not of a character which can be safely relied upon. The Appellants are entitled to the benefit of doubt. 14. We accordingly allow the appeal set aside the conviction and sentence passed upon Tribhuwan and Jhabboo and direct that unless required in connection with any other case, they shall be set at liberty forthwith.