JUDGMENT Bhargava, J. - Chandrika, Bishambhar, Gaya Din, Ram Autar, Ram Narain and Subedar have appealed against their conviction for an offence punishable u/s 302 of the Indian Penal Code read with S. 149 of the Indian Penal Code. Each of them has been sentenced for this offence to transportation for life. In addition Bishambar, Ram Autar and Gaya Din have been convicted and sentenced to two years' rigorous imprisonment each for an offence punishable under S. 148 of the Indian Penal Code, whereas the other three Appellants Chandrika, Ram Narain and Subedar have been convicted and sentenced to one year's rigorous imprisonment for an offence punishable u/s 147 of the Indian Penal Code. The Appellant Ram Autar is known by two other names Ram Saran and Laley. 2. The incident to which this case relates took place on the 13th March, 1952. The motive of the incident which has been alleged by the prosecution is previous enmity between Chandrika, the principal Appellant, and Sheoraj Singh deceased. The prosecution case is that Sheoraj Singh was the leader of one party whereas Chandrika headed the other party. The Appellants are all close relation of Chandrika, two of them Ram Narain and Subedar being his sons, Ram Autar being married to Chandrika's daughter, Gaya Din Appellant being the father of Ram Autar and Bishambhar Appellant being the brother of the son-in law of Chandrika. The principal prosecution witnesses who are alleged to have been in the company of Sheoraj Singh at the time when the incident took place are Ghasi Ram alias Ghasite, Babu and Lalta. They are said to be prominent members of the party of sheoraj Singh. A number of reports are on the record indicating that reports had been lodged by Chandrika or Gaya Din against Sheoraj Singh or other members of his patty. On the 5th January, 1952, there was some incident or marpit and in respect of it a case was started in Court with Chandrika Prasad Appellant as the complainant. In that case Sheoraj Singh, Lalta and Babu were included as accused. On the day of the incident the case in respect of that previous incident was still pending. On the 5th January, 1952, there was some incident or marpit and in respect of it a case was started in Court with Chandrika Prasad Appellant as the complainant. In that case Sheoraj Singh, Lalta and Babu were included as accused. On the day of the incident the case in respect of that previous incident was still pending. The prosecution suggests that it was as a result of the beating which Chandrika had received and which was the subject-matter of that case that Chandrika decided that Sheoraj Singh, who was alleged to have been at the back of that beating, should be killed in order to take revenge. On the 13th March, 1952, Sheoraj Singh had gone with Ghasi Ram, Lalti and Babu to Mallawan to pay calls on various persons in connection with the Holi festival. These four persons had gone on two cycles; Babu and Sheoraj Singh were on one cycle and Ghasi Ram and Lalta on the other. They left their village Kazipur Farhatnagar at about 2 P.M. and came to Mallawan, which is at a distance of about two miles from that village. It is alleged that, as they went to Mallawan and thence from place to place, Ram Narain Appellant followed them on a cycle. At Mallawan they visited the police station where they meet the Sub-Divisional Magistrate and the Tahsildar. After spending some time there they proceeded to Bhagwantnagar. Sheoraj Singh was given a lift by the Sub-Divisional Magistrate in the pick-up From Bhagwantnagar, Sheoraj Singh and his three companions Ghasi Ram, Lalta and Babu went to village Govardhanpur and then they came back to Mallawan, there they last visited the medical officer. Thereafter they left for their own village and for some time went along the pucca road. They left the pucca road where a kachcha road branched off towards their village. As they had proceeded for a short distance along that road, it is alleged that all these six Appellants, who were lying in ambush behind a stack of bricks near a brick-kiln, rushed out and attacked them. The Appellants Chandrika, Subedar and Ram Narain were armed with lathis, Gaya Din and Ram Autar with kantas and Bishambhar with a spear. They gave blows to Sheoraj Singh, who fell down. Babu also received a blow and fell there. The Appellants Chandrika, Subedar and Ram Narain were armed with lathis, Gaya Din and Ram Autar with kantas and Bishambhar with a spear. They gave blows to Sheoraj Singh, who fell down. Babu also received a blow and fell there. Sheoraj Singh ran but Chandrika incited the others to kill him so that he was pursued and beaten again. He was badly injured. Babu, Lalta and Ghasi Ram raised an alarm and kept on shouting. The two nearest persons who saw the assailants are alleged to have been Har Prasad and Kaleshwar. After these persons had also started, shouting, the assailants all ran away. The alarm that had been raised was heard in village Kazipur Farhatnagar and some people from that village arrived there including the mother of Sheoraj Singh, and Gaya Prasad, his munim. They sent a man to fetch a cot in order to carry Sheoraj Singh to the hospital, but, before the cot could arrive, it was noticed that a car was coming from the direction of village Mallawan. The car was stopped. In it were the Sub-Divisional Magistrate and the Tahsildar. The incident was related to them. The Sub-Divisional Magistrate promptly took Sheoraj Singh to the hospital but before any medical aid could be given Sheoraj Singh died. The Sub-Divisional Magistrate sent word to the station officer of police station Mallawan, who came and started investigation. In the meantime a report was dictated by Ghasi Ram to Gaya Prasad and this was handed over to the investigating officer. He sent it to the police station and there a case of murder was registered against these six Appellants. The investigating officer examined some witnesses at the hospital, prepared the inquest report and after some other work proceeded to the scene of the occurrence. He examined some witnesses there. He found one Paragi lying injured in a hut near the brick-kiln which is situate close to the scene of the occurrence. A report was handed over to him by one Kripali. After further investigation these six Appellants were sent up for committing up the murder of Sheoraj Singh while they were in the possession of the weapons mentioned above. 3. The Appellants all pleaded not guilty and denied that they took part in any incident at all. A report was handed over to him by one Kripali. After further investigation these six Appellants were sent up for committing up the murder of Sheoraj Singh while they were in the possession of the weapons mentioned above. 3. The Appellants all pleaded not guilty and denied that they took part in any incident at all. They admitted the previous enmity which was alleged by the prosecution but it was contended on their behalf that that enmity provided a much greater motive for the prosecution to implicate them falsely than a motive for them to assault and commit the murder of Sheoraj Singh. In order to explain how Sheoraj Singh happened to be killed a rival version was put forward on their behalf. Their case was that the incident took place at a time when there was complete darkness. Sheoraj Singh and his companions were attacked by unknown assailants, none of whom, could be recognised and due to darkness there was no possibility that they could ever be identified. The previous enmity with Chandrika being in existence, Ghasi Ram and others probably suspected that Chandrika was at the bottom of this attack and they decided to implicate Chandrika and his close relatives for this offence. 4. The learned Sessions Judge believed the prosecution version and disbelieved the defence suggestion. He consequently convicted the Appellants and they have now come up in appeal to this Court. 5. In view of the pleas on behalf of the prosecution and defence it is necessary for us to go into the details of the previous enmity between the parties. Both parties admit that they were at loggerheads. Reports, Exs. F, G and H, show that there were incidents in the past when some of these Appellants had brought forward charges against Sheoraj Singh or members of his party including some of the prosecution witnesses. There is also documentary evidence to show that a case in respect of the incident of the 5th January, 1952, was already pending in Court. Sheoraj Singh was himself an accused in that case. There is also documentary evidence to show that a case in respect of the incident of the 5th January, 1952, was already pending in Court. Sheoraj Singh was himself an accused in that case. While such enmity existed it cannot be said that the prosecution suggestion that Sheoraj Singh was attacked in order to take revenge on him is not possible, though there is force in the argument of learned Counsel for the Appellants that it is not very likely that an assault should have been made with the purpose of killing Sheoraj Singh when Sheoraj Singh was already being prosecuted and was undergoing a trial. If the case had already ended and Sheoraj Singh had been acquitted, there might have been a stronger motive for the Appellants to take revenge on him themselves having failed to get satisfaction through the process of law, but, while there was still a possibility that Sheoraj Singh and this companions might be convicted, it does not appear to be very probable that they should have suddenly decided to attack him and kill him outright. The previous incident of the 5th January, 1952, was not of a serious nature and such an incident would not be an incentive for murder. On the other hand, if the defence suggestion that Sheoraj Singh was killed at a time when it was dark and the assailants could not be recognised at all be correct, it would not be unnatural for Ghasi Ram and other prosecution witnesses to suspect Chandrika and to implicate him and his relatives for this incident. The question of motive therefore favours more the defence version rather than the prosecution version. 6. The chief point, however, that has to be considered is whether the circumstantial evidence and the evidence of the witnesses relied upon by the prosecution is good enough to lead to the conclusion beyond all reasonable doubt that Sheoraj Singh was attacked and killed by these six Appellants. Naturally, in a case of this nature, the most important question that has to be considered is whether the assault took place under such circumstances that the assailants could have been recognised or whether there was no such possibility. Naturally, in a case of this nature, the most important question that has to be considered is whether the assault took place under such circumstances that the assailants could have been recognised or whether there was no such possibility. The learned Sessions Judge has considered the evidence given by the prosecution and relied on those portions of the statements of the prosecution witnesses which show that the assault on Sheoraj Singh took place sometime between 6 and 6-30 P.M. On the 13th March, 1952. the sun had set at 5-55 p.m., and the moon rose at 7-35 P.M. The month being that of March twilight might have lasted for about half an hour after sunset. Consequently for more than an hour between 6-25 and 7-35 P.M. there could have been no light either from the sun or the moon and, in case the incident took place during that interval, it would be very unlikely that the assailants should have been recognised by the prosecution witnesses. On the finding given by the learned Sessions Judge the incident took place before 6-30 P.M. at a time when there was sufficient light but it appears that the learned Judge did not carefully examine the statements of the various prosecution witnesses so as to work out the most probable time when the incident took place. Learned Counsel for the Appellants has worked out before us the time on two bases. He has first considered the movements of Sheoraj Singh and his companions before the incident as described by the prosecution witnesses and has shown that the inference that follows from them is that Sheoraj Singh and his companions must have arrived the scene of the occurrence some time between 7 and 7-15 P.M. Secondly he has considered the evidence of the prosecution witnesses relating to the time of the arrival of the Sub-Divisional Magistrate and the Tahsildar in their pick-up close to the scene of the occurrence and the movements of all the prosecution witnesses up to the time of the arrival of the car and subsequently and has inferred that these also would place the time of the incident at about 7 or 7-15 P.M. As has been mentioned earlier, Sheoraj Singh and his companions went to police station Mallawan, where they met the Sub-Divisional Magistrate, the Tahsildar and the Station Officer. From there they went to Bhagwantnagar. From there they went to Bhagwantnagar. From Bnagwantnagar they came to Mallawan after making a visit to Govardhanpur. It was after all this that they left for Kazipur Farhatnagar and came to the scene of the occurrence. The answers given by the prosecution witnesses show that Sheoraj Singh and his companions must have left Bhagwantnagar somewhere about sunset. According to the evidence of the Tahsildar, he, the Sub-Divisional Magistrate and Sheoraj Singh had left police station Mallawan for Bhagwantnagar at about 4-15 p.m. At Bhagwantnagar Sheoraj Singh stayed with them for one or one and a half hour. This would mean that Sheoraj Singh left their company sometime at about 5-30 or 5-45 P.M. Thereafter they went and visited prosecution witness Ram Dularey in village Govardhanpur. This witness states that they came to his house about half an hour before sunset, stayed with him for about ten minutes and then went away. According to his estimate when taken in conjunction with the estimate given by the Tahsildar, it would appear that these persons must have left Ram Dulare's house very nearly when the sun was already setting. Thereafter they went to the house of the medical officer at Mallawan where they met his daughter and had a talk with her. Thereafter they started on their return journey. Considering all their movements, it does seem to be quite likely that these persons must have come to the scene of the occurrence somewhere about 7 P.M. 7. Then we have to examine the evidence which relates to the movements after the incident. According to almost all the prosecution witnesses, the car of the Sub-Divisional Magistrate arrived at the scene of the occurrence shortly after the incident had taken place. Some of the witnesses have stated that, at the time when the car arrived there, the assailants had not gone more than two 21/2 furlongs from the scene of occurrence. If this be correct, the interval between the close of the incident and the arrival of the car must have been very short. There is, however, one indication that probably the interval was longer than that indicated by this circumstance. Almost all the prosecution witnesses are certain that, before the arrival of the car of the Sub-Divisional Magistrate there, a number of residents of village Kazipur Farhatnagar had also come to that place. There is, however, one indication that probably the interval was longer than that indicated by this circumstance. Almost all the prosecution witnesses are certain that, before the arrival of the car of the Sub-Divisional Magistrate there, a number of residents of village Kazipur Farhatnagar had also come to that place. Kazipur Farhatnagar is about one mile from the scene of the occurrence, as appears from the evidence in the case as: well as from the location as marked in the survey map which was examined by us. It must have taken people an appreciable amount of time to come from Kazipur Farhatnagar to the scene of the occurrence. Besides, it is also likely that some time must have been taken by the person who carried the information of the occurrence to the people of Kazipur Farhatnagar. No doubt the prosecution witnesses have alleged that the alarm that was raised at the scene of the occurrence had been heard in the village but this appears to us to be very unlikely. The village was about one mile away from the scene of the occurrence and it is difficult to believe that the shouts of three or four persons could have been heard so far away. Considering all the circumstances, however, it may be inferred that there was an interval of about 30 to 45 minutes between the incident and the arrival of the car of the Sub-Divisional Magistrate. There is also evidence to show that the car of the Sub-Divisional Magistrate came to the scene of the occurrence at about 7-45 p.m. The principal witness on the point is the Tahsildar Sri Chandra Mohan Lal. He has stated that, when returning from Bhagwantnagar with the Sub-Divisional Magistrate, they had dropped the station officer at police station Mallawan some time between 7-30 and 8 P.M. The average works out at 7-45 P.M. In order to satisfy ourselves about the correctness of this time, we examined the special case diary of this case and found material on it to indicate that the time of 7-45 P.M., which is the average of the two timings given by the Tahsildar was the correct time at which the station officer was dropped at the police station. The car, therefore, left the police station at about 7-45 P.M. and must have reached close, to the scene of the occurrence within a few minutes as it was only a few furlongs away. When the car was stopped, the Sub-Divisional Magistrate and tie Tahsildar were told that Sheoraj Singh had been attacked and injured seriously. Sheoraj Singh was then promptly taken in the car and carried to the hospital. From the hospital information was at once sent to the station officer who arrived at the hospital at 8 P.M. Obviously the Sub-Divisional Magistrate and the Tahsildar stopped at the scene of the occurrence only for a few minutes that were necessary to get the first brief description of the incident from the witnesses and to pick up Sheoraj Singh who was lying seriously injured. They were quite right in hurrying Sheoraj Singh to the hospital in the hope that his life might be saved as he was still breathing, though ultimately medical aid could not be rendered to him in time and he could receive no attendance at all. Since we have found that the car arrived at the scene of the occurrence at about 7-45 P.M., and there was an interval of about 30 or 45 minutes between the incident and the arrival of the car, it is clear that the incident must have taken place between 7 and 7-15 P.M. At this stage we may also take notice of the evidence of the only defence witness who has been examined in this case, viz. Paragi. Paragi in his evidence has stated that the incident took place at 7 P.M., and it appears to us that his version is quite correct. As we have mentioned earlier, at 7 P.M., there was neither sunlight nor moon light. There was no other source of light either and consequently the defence suggestion that the assailants could not be recognised appears to be correct and is, in any case, highly probable. 8. It is true that the prosecution witnesses have stated that they were able to recognise the assailants and have named all these Appellants as being those assailants but the evidence of these witnesses is doubtful on several grounds. 8. It is true that the prosecution witnesses have stated that they were able to recognise the assailants and have named all these Appellants as being those assailants but the evidence of these witnesses is doubtful on several grounds. The first and the most important circumstance that may be considered is that, according to the deposition of the Tahsildar recorded at the time of the investigation by the station officer of police station Mallawan, the only information that was given to him and the Sub-Divisional Magistrate when their car was stopped was that Sheoraj Singh had been attacked by Chandrika and five companions. If all the assailants had been recognised, there is no reason why the names of all those assailants should not have been mentioned then and there specially when information was being given to the Sub-Divisional Magistrate. The Tahsildar in his statement in Court has alleged that the information conveyed was that the attack had been made by Chandrika, his two sons and a few others. We cannot believe this statement of the Tahsildar in view of what he stated to the investigating officer. The Tahsildar was examined in Court seven months after the incident whereas his statement was recorded by the investigating officer within half an hour of the incident. If he had been told on the spot that the companions of Chandrika included his two sons, he could not have forgotten that fact when giving his statement to the investigating officer. It must be remembered that we are considering the statement of a person who is himself working as a Magistrate and has legal training. He knew the importance of giving a full and correct statement to the investigating officer and consequently, if other names had been mentioned to him or if he had been told that two of the assailants were the sons of Chandrika, he would certainly not have omitted to give this information at the time of the investigation. It is, therefore, clear that, at that time when the first version was given by the prosecution witnesses to the Sub-Divisional Magistrate and the Tahsildar, the only came that was disclosed was that of Chandrika and the only reason for it can be that the assailants had not been recognised at all. Between the incident and the arrival of the car the time had been short. Between the incident and the arrival of the car the time had been short. All that the prosecution witnesses could make up their mind about was to implicate Chandrika, as he was the person with whom they and Sheoraj Singh, had the principal cause of enmity. Five others were vaguely mentioned so as to rope in other person later on. Some time elapsed while Sheoraj Singh, was carried to the hospital, in calling the investigating officer and during the time that the investigating officer first questioned the Sub-Divisional Magistrate and the Tahsildar. It was during this time that the names of the remaining five Appellants appear to have been settled, so that their names were included in the report that was dictated by Ghasi Ram to Gaya Prasad munim. The second circumstance that has to be considered is that in this case there is not one single witness who can be said to be entirely independent and reliable and who may have appeared as an eye-witness. Apart from the fact that the witnesses belonged to the party of Sheoraj Singh, which was hostile to Chandrika Appellant, it appears that the witnesses have direct enmities of their own and further that they are not witnesses of a very reliable character. Ghasi Ram was named by Ram Autar Appellant in his report Ex. G and by Gaya Din in his report Ex. H. Ghasi Ram was further questioned about his relationships with the other prosecution witnesses. He went to the extent of denying knowledge of the names of his real uncles. It appears that the prosecution witness Kanhaiya Lal admitted ahat Har Prasad is his first cousin and the prosecution witness Kaleshwar is his nephew. Ghasi Ram did not went to admit,this relationship and consequently gave evasive answers. Kanhaiya Lal, however, clearly admitted that Ghasi Ram was his first cousin, The previous record of Ghasi Ram includes the institution of proceedings against him for being bound down for good behaviour u/s 110 of the Code of Criminal Procedure. The defence questioned him whether in those proceedings Chandrika accused had appeared as a witness against him but he pleaded lapse of memory. Har Prasad prosecution witness, however, admitted that he was also involved in those proceedings with Ghasi Ram and Chandrika Appellant had appeared as a witness against them. The defence questioned him whether in those proceedings Chandrika accused had appeared as a witness against him but he pleaded lapse of memory. Har Prasad prosecution witness, however, admitted that he was also involved in those proceedings with Ghasi Ram and Chandrika Appellant had appeared as a witness against them. Thus Ghasi Ram had reason enough to bring a charge against Chandrika and it was also natural for him to suspect that Chandrika was probably responsible for this assault on Sheoraj Singh. 9. Almost similar is the case with the other two witnesses who were in the company of Sheoraj Singh, viz Lalta and Babu. Lalta was one of the co-accused with Sheoraj Singh in the case started by Chandrika Appellant in respect of the incident of the 5th January, 1952, which was pending at that time. He was also named as an accused in the report Ex. H. lodged by Gaya Din. Babu prosecution witness was also similarly accused in the case relating to the incident of the 5th January, 1952, and was mentioned in the report Ex. H. made by Gaya Din. He was in addition included in the report which was lodged by Ram Autar Appellant, which is Ext. G. Babu was also once fined for an offence punishable u/s 19(f) of the Indian Arms Act. All the three witnesses who were in the company of Sheoraj Singh have their own grievance against Chandrika Appellant and it appears that it was for this reason that they had no hesitation at all in naming Chandrika as one of the assailants and did so as soon as the Sub-Divisional Magistrate and the Tahsildar arrived. They, however, did not have any strong or direct enmity with the other Appellants and the choice of the other persons to be named as the assailants consequently had to be deferred. It could only be finalised after Gaya Prasad, munim of Sheoraj Singh, had also arrived and was given charge of recording the report. 10. The only two other witnesses Har Prasad and Kaleshwar, who were mentioned in the first information report as eye-witnesses, are no better than the three witnesses discussed above. Proceedings against Har Prasad were taken u/s 110 of the Code of Criminal Procedure at the same time as Ghasi Ram and Chandrika was a witness against him. He was also named in reports Exts. Proceedings against Har Prasad were taken u/s 110 of the Code of Criminal Procedure at the same time as Ghasi Ram and Chandrika was a witness against him. He was also named in reports Exts. G. and H. lodged by Ram Autatand Gaya Din. He is the first cousin of Ghasi Ram. Kaleshwar prosecution witness is his nephew. Kaleshwar's two brothers Bishambhar and Kanhai were being prosecuted in the case started by Chandrika Appellant in respect of the incident of the 5th January, 1952. It is not possible for us to place any reliance on Kaleshwar's statement that he was on very bad terms with his brothers and therefore could have no grievance against Chandrika on the ground that his brothers had been prosecuted by him. Though in the first information report the version put forward was that these two witnesses Har Prasad and Kaleshwar bad themselves witnessed the actual assault and that the Appellants had run after these two witnesses also challenged them, in their evidence in Court they have come forward with a different version. Their statement in Court is that they did not see the actual assault but only saw the six Appellants running away close to the scene of the occurrence. later on, they proceeded further and found Sheoraj Singh, lying injured. This change in the version creates suspicion as to whether they were at all at the scene of the occurrence. Har Prasad in order to explain his presence at that place at that time stated that he was in his field which he had taken on batai from Kanhaiya Lal but this statement is falsified by Kanhaiya Lal, who is definite that none of his fields on that side is in the possession of Har Prasad. Kaleshwar came forward with the explanation that he was coming back from village Mallawan were he had gone to purchase vegetables. It appears to us to be very improbable that Kaleshwar would have gone to Mallawan to purchase vegetables at that hour of the evening, as that is a very unusual time for making such purchases in villages. 11. Witness Gaya Prasad claims to be one of the earliest arrivals at the scene of the occurrence after Har Prasad and Kaleshwar, but he starts with stating that he was in his village Kazipur Farhatnagar when the incident took place. 11. Witness Gaya Prasad claims to be one of the earliest arrivals at the scene of the occurrence after Har Prasad and Kaleshwar, but he starts with stating that he was in his village Kazipur Farhatnagar when the incident took place. He says that he heard the alarm in the village and came to the scene of the occurrence. As we have said above, the scene of the occurrence is about one mile away from village Kazipur Farhatnagar and we cannot believe that the alarm could have been heard so far. It is much more likely that the information to the village was carried by some other person, very probably Ambar, who has been named by some of the prosecution witnesses. Gaya Prasad came on receipt of that information. Obviously, by the time that he came, there could have been no sign of the assailants in that neighbourhood and while his evidence would support the prosecution version that Sheoraj Singh, was assaulted and beaten at that place, it in no way provides corroboration of the prosecution allegation that this assault had been committed by the Appellants. That Sheoraj Singh, was beaten is not contested by the defence. Gaya Prasad's evidence is, therefore, of no practical assistance in judging whether the prosecution case is or is not true. 12. The only other witness who need be considered is Raja Ram. Raja Ram has come forward to state that he saw five of these Appellants (Ram Narain being omitted) close to the scene of the occurrence some time before the incident took place. It is true that the defence have not been able to bring out anything in his cross examination to show that he is partial witness but from the nature of his evidence itself we are not prepared to attach much weight to it. It seems to us to be unlikely that, if these five Appellants had been really lying in ambush in order to kill Sheoraj Singh they would have committed the error or sitting openly in that area in broad daylight to be noticed by Raja Ram. Raja Ram does not say that they made any efforts to conceal themselves. His evidence has, therefore not impressed us at all. 13. It would thus appear that the whole prosecution evidence given in this case is interested and not reliable. Raja Ram does not say that they made any efforts to conceal themselves. His evidence has, therefore not impressed us at all. 13. It would thus appear that the whole prosecution evidence given in this case is interested and not reliable. There are statements made by these witnesses themselves which show that the incident very probably took place at a time when it was dark and the assailants could not have been recognised. The names of the Appellants were not mentioned promptly and came at a later stage. In the light of these circumstances we have also to consider the evidence of defence witness Paragi, who says that he was at the brickkiln close by when he heard the sound of a marpit. He and his companions went there and tried to intervene and happened to get beaten themselves. Paragi was found injured by the investigating officer on the very first occasion when he went to the scene of the occurrence at about midnight. The prosecution version in no way explains his injuries, The learned Sessions Judge took into consideration a report handed over by one Kripali to the investigating officer at that time. That report could only be used to show that Kripali had given a report to the investigating officer and met the investigating officer at that time. The contents of the report are inadmissible to show what version was put forward by Kripali. Kripali was not examined by the prosecution as a witness and we think that the learned Sessions Judge also did not realise his responsibility in failing to examine him u/s 540 of the Code of Criminal Procedure. In fact at this stage we are constrained to remark that the learned Sessions Judge committed a greater error in not examining the Sub-Divisional Magistrate u/s 540 of the Code of Criminal Procedure, as obviously he would have been the most reliable witness. It was of course improper on the part of the prosecution to produce the Tahsildar and omit the Sub-Divisional Magistrate, but once the prosecution had committed that error the learned Sessions Judge in order to discover the truth should himself have summoned the Sub-Divisional Magistrate. He should also have summoned Kripali when the prosecution failed to do so. It was of course improper on the part of the prosecution to produce the Tahsildar and omit the Sub-Divisional Magistrate, but once the prosecution had committed that error the learned Sessions Judge in order to discover the truth should himself have summoned the Sub-Divisional Magistrate. He should also have summoned Kripali when the prosecution failed to do so. At one stage we were inclined to summon these two witnesses but after going through the record we have felt that there is sufficient material on the record to indicate that the prosecution case against these Appellants is not correct and that at this stage it would not be advisable to summon these witnesses and examine them u/s 540 of the Code of Criminal Procedure. Kripali not having been examined as witness by either party or by the Court, his previous statement in the report handed over by him to the investigating officer was entirely inadmissible in evidence and should not have been considered by the learned Sessions Judge. In the cross-examination of Paragi an attempt was made by the prosecution to put to him a suggestion that Paragi was probably assaulted in another incident subsequent to the attack on Sheoraj Singh by the residents of village Kazipur Farhatnagar, who on arrival found Sheoraj Singh lying seriously injured and felt enraged against Paragi and others who were at the brick-kiln and who were either suspected to be the assailants of Sheoraj Singh or at least blamed for making no efforts to save him. The suggestion was refuted by Paragi and has no support from any evidence given on behalf of the prosecution. It is, therefore, not necessary for us to consider it any further. Paragi's evidence appears to be consistent with the inference that flows from the circumstantial evidence and from the evidence of the prosecution witnesses themselves and we are, therefore, much more inclined to believe his version. There is yet one more reason why Paragi's evidence should carry conviction in preference to prosecution witnesses. According to prosecution, Chandrika played a leading part in the attack on the deceased. It is said that he was the first to launch an attack, and when Sheoraj Singh ran for his life, Chandrika not only chased the deceased but managed to run away when he was challenged by the prosecution witnesses. Chandrika is an old mm of 65 or 70. On his behalf Dr. It is said that he was the first to launch an attack, and when Sheoraj Singh ran for his life, Chandrika not only chased the deceased but managed to run away when he was challenged by the prosecution witnesses. Chandrika is an old mm of 65 or 70. On his behalf Dr. H.M. Kar, Civil Surgeon of Hardoi, was examined. The evidence of the doctor shows that Chandrika has weak eyesight as he is suffering from immature senile cataract of both the eyes in addition to the pheryguism in both the eyes. Apart from this defective vision, there is an 'old malunited fracture of the left ulna' affecting his muscular power to hold a thing firmly. In both the knees he has osteo-yyyyyyyyyyyyyyyyyy restricting free movement of the legs. It is manifest from the evidence of the doctor that Chandrika, who suffers from so many physical disabilities was probably incapable of taking part in the attack. The conclusion is, therefore, irresistible that the Appellants were named not because they were seen committing the crime but because of the existence of enmity between the deceased and Chandrika. We cannot, therefore, agree with the learned Sessions Judge that the prosecution have proved the charge against these Appellants. 14. We allow the appeal, set aside the convictions and sentences of all the Appellants and acquit them of the charges u/s 302 read with Section 149 I.P.C., Sections 148 I.P.C., and 147 I.P.C. Chandrika Appellant, who is on bail, need not surrender. His bail bonds are discharged. The remaining five Appellants shall be set at liberty at once unless required in connection with some other charge.