JUDGMENT - B.M. SAPRE, J.:---This appeal has been preferred by the original accused No. 1 Obin Samuel Wheeler against him conviction under section 304, Part II of the Indian Penal Code and sentence of rigorous imprisonment for three years. Along with him, accused No. 2 Dodappa Gangappa Kamadoli was also prosecuted, but he was acquitted. At the material time, deceased Mallikarjuniah was the Station Master at the Railway Station, Miraj. Narsinvan (P.W. 17) was the First Assistant Station Master and Vithalrao Shinde (P.W. 6) was another Assistant Station Master at the same place. Accused No. 1 was the Cabin Assistant Station Master and accused No. 2 was the Relieving Assistant Station Master. Mallikarjuniah was staying alone at Miraj. His family was staying at Bellary. Mallikarjuniah was, therefore, staying in the Rent House near the Narrow Gauge Railway Station, Miraj. There were complaints against both the accused regarding their duties. It was noticed that they were remaining absent without permission from their duties, were not properly attending to their duties and used to detain trains. In April 1972, on the report of Mallikarjuniah against accused No. 1 for remaining absent from duty on 16th March, 1972 without prior sanction of leave and without producing medical certificate, an explanation was called from accused No. 1. There were also other reports against him from time to time to the superior officers of misbehaviour. On 17th December, 1972 at night, when Narsinvan was working as Acting Station Master, as Mallikarjuniah was on leave, accused No. 1 did not respond to a number of telephone calls that were received in the cabin. The result was that a number of trains, goods as well as passenger trains, were detained. Narsinvan held an inquiry and found that accused Nos. 1 and 2 had quarrelled and damaged the telephone and railway property while working in the south cabin. On Mallikarjuniah resuming his duties, Narsinvan apprised him of the above mentioned incident and, on his instructions, submitted a report against accused No. 1 on 19th December, 1972. This resulted in passing an order of suspension against accused No. 1. Disciplinary action was proposed to be taken. The incident in question occurred on 29th December, 1972. On Mallikarjuniah resuming his duties, Narsinvan apprised him of the above mentioned incident and, on his instructions, submitted a report against accused No. 1 on 19th December, 1972. This resulted in passing an order of suspension against accused No. 1. Disciplinary action was proposed to be taken. The incident in question occurred on 29th December, 1972. According to the prosecution, accused No. 1 went to the Railway Station at about 4 p.m. when Mallikarjuniah was on duty and asked him to take him back on duty because his suspension order had been revoked. Mallikarjuniah, however, told him that he had not received any orders revoking the suspension order. Accused No. 1 again went to the Railway Station at 9.30 p.m. At that time, Shinde was on duty. Accused No. 1 wanted to telephone the office of D.O.S., Hubli, complaining that Mallikarjuniah was not allowing him to join his duties when the suspension order against him had been revoked. Shinde tried to dissuade him stating that nobody would be found in the office of the D.O.S., Hubli. Accused No. 1, However, insisted on making the telephone call to the office of D.O.S. Hubli. Thereafter, accused No. 1 left the Railway Station. Mallikarjuniah had gone on that night to the hotel of Kulbirsing (P.W. 14), for meals. He took the meals and left the hotel at about 10.30 p.m. He was going towards the Railway Station by a road on one side of which petty vendors like fruit-sellers, tea shop-keepers, etc. have their shops on the footpath. Mallikarjuniah stopped near the stall of one patil, a banana vendor, a light his cigarette. Accused Nos. 1 and 2 at that time came from the Station side. Accused No. 1 was wearing a steel ring in his right hand. He dealt two fist blows with his right hand, one on the nose and the other on the left cheek of Mallikarjuniah. The blows were given with sufficient force, with the result that Mallikarjuniah fell on the ground and he became unconsiscious. Attempts were made to bring him into consciousness, but he did not regain consciousness. Accused No. 1 even sprinkled water on his face. A word was sent to Shinde, who was on duty at the Railway Station. He came with peon Yovhan (P.W. 18) call-boy Kambale. A number of persons had assembled. Attempts were made to bring him into consciousness, but he did not regain consciousness. Accused No. 1 even sprinkled water on his face. A word was sent to Shinde, who was on duty at the Railway Station. He came with peon Yovhan (P.W. 18) call-boy Kambale. A number of persons had assembled. A tonga was secured and Mallikarjuniah was removed in it to the Rest House where he was staying. The lock on the door was opened with the key found in the pocket of Mallikarjuniah. He was taken inside and made to sleep on a cot. Except the under garments, the other clothes on his person were removed to allow him to have fresh air. Thereafter, the party left locking the door from outside and the key was kept by Shinde. At about 4 a.m., on the morning of 30th December, 1972, Yovhan was sent to the Rest House to see the condition of Mallikarjuniah. He found that Mallikarjuniah was restless and was tossing in the bed. His face was swoleen and he was bleeding. He then rushed to Shinde and apprised him of the condition of Mallikarjuniah. Shinde sent for the Railway Medical Officer Dr. Channapattan (P.W. 13). He examined Mallikarjuniah and found that there was cerebral irritation and there were injuries on the head. As Mallikarjuniah was uncontrollable his legs and hands were tied to the cot. As the condition of Mallikarjuniah was serious, it was decided to shift him to the Railway Hospital, Hubli, for the necessary treatment. But, ultimately, he was admitted in the Mission Hospital, Miraj, at about 12.30 p.m. Dr. Nerlikar (P.W. 15), examined him and gave him the necessary treatment. But his condition continued to worsen and he succumbed to the injuries on the same night, that is at 12.30 a.m. on the morning of 31st December, 1972. In the meantime, after Mallikarjuniah was admitted in the Missions Hospital, the police were informed. Head Constable Sutar (P.W. 24), was directed to make enquiries. He went to the hospital with a view to record the statement of Mallikarjuniah, but could not do so as he was unconscious. Later on, after the death of Mallikarjunah, Sutar filed a complaint (Ex. 65) on 1st January 1973, which was the First Information Report of the occurrence. Head Constable Sutar (P.W. 24), was directed to make enquiries. He went to the hospital with a view to record the statement of Mallikarjuniah, but could not do so as he was unconscious. Later on, after the death of Mallikarjunah, Sutar filed a complaint (Ex. 65) on 1st January 1973, which was the First Information Report of the occurrence. It was mentioned in that Report that information was given by IIahi Babalal Servan (P.W. 10), that accused No. 1 and one unknown person had hit Mallikarjuniah as a result of which he had died. In due course of time, the two accused came to be prosecuted. The main evidence in the case was of three eye-witnesses who had seen accused No. 1 dealing two fist blows on the nose and left cheek of Mallikarjuniah on the night in question. They are Ram Durve (P.W. 8), a shoe-shine boy aged 11 years doing his business at the Railway Station, Miraj; Bhimshen Koli (P.W. 9), who is a coolie at the Railway Station, Miraj; and IIahi Babalal Sarvan, who has a tea stall at the same place. Two witnesses Narayan Pardeshi (P.W. 11) and Hassan Sayyed (P.W. 12) were also examined to corroborate the version of Ram Durve as his having told these persons immediately after the occurrence that accused No. 1 had given two fist blows to Mallikarjuniah, one on the nose and the other on the left cheek. The prosecution also adduced evidence to prove the motive for the offence, namely, the grievance which accused No. 1 nursed towards Mallikarjuniah because the latter was not only reporting against accused No. 1 to his superior officers but he had also not allowed accused No. 1 to resume duty although the order of suspension passed on 19th December, 1972 had been revoked. Medical evidence was also adduced to prove the injuries and the cause of death. That evidence was of Dr. Channapattan and Dr. Nerlikar. Dr. Pratibha Kulkarni (P.W. 16), who had performed post-mortem on the dead body of Mallikarjuniah, was also examined. The viscera of the stomach as also of the spleen, liver, Kidney, brain and lung were sent to the Chemical Analyser for analysis and report one of the purposes being to find out whether there was alcohol in the viscera. The Report (Ex. Pratibha Kulkarni (P.W. 16), who had performed post-mortem on the dead body of Mallikarjuniah, was also examined. The viscera of the stomach as also of the spleen, liver, Kidney, brain and lung were sent to the Chemical Analyser for analysis and report one of the purposes being to find out whether there was alcohol in the viscera. The Report (Ex. 73) of the Chemical Analyser was received in due course stating that the viscera of the stomach contained 207 milligrams of ethyl alcohol in 100 grams and the viscera of the spleen, liver, kidney, brain and lung contained 57 milligrams of ethyl alcohol in 100 grams. The defence of the accused was that at the time of the occurrence, they were going towards the Railway Station and Mallikarjuniah was proceeding ahead of them. Mallikarjuniah was addicted to liquor and at that time he had healvily consumed liquor and was unable to control himself. Near the shop of one Patil, when he stopped to light his cigarette, he suddenly fell on the ground and became unconscious. Accused No. 1 denied that he had given two fist blows on the nose and left cheek of Mallikarjuniah and because of these blows he had falled on the ground. It was thus the suggestion of the accused that Mallikarjuniah had sustained the injuries due to a fall accidentally. The learned Additional Sessions Judge relied mainly on the evidence of the three eye-witnesses and held that accused No. 1 had dealt fist blows on the nose and left cheek of Mallikarjuniah and he had sustained the injuries both due to these blows and also because of the fall as a result of the blows. He, therefore, convicted and sentenced accused No. 1 as already mentioned. Being aggrieved, accused No. 1 has filed this appeal. Mr. Bhimrao Naik, the learned Advocate for the appellant-accused No. 1, submitted that the eye-witnesses are got up and it was not proved that accused No. 1 had given two fist blows on the nose and left cheek of Mallikarjuniah. What happened was that Mallikarjuniah had lost balance because he had heavily consumed liquor, had fallen down on the ground and had sustained injuries which had resulted in his death. What happened was that Mallikarjuniah had lost balance because he had heavily consumed liquor, had fallen down on the ground and had sustained injuries which had resulted in his death. The main question that arises for our decision in this appeal is whether it has been proved that accused No. 1 had dealt two fist blows on the nose and left cheek of Mallikarjuniah. If it is proved that he had dealt these blows, the next question that will arise for decision is what offence can be said to have been committed by accused No. 1. Ram Durve (P.W. 8), who is aged 11 years, is a shoe-shine boy doing that work as well as the work of a coolie at the Railway Station. His mother sell fruits on the footpath on the southern side of the road going towards the Railway Station. According to him, at about 10.30 p.m. on the day of the occurrence, he was going to the station. He noticed Mallikarjuniah coming from the hotel and proceeding towards the Station. At a distance of about 20 feet from him. Mallikarjuniah stood for lighting his cigarette. He was on the road. Accused Nos. 1 and 2 came from the station side. Accused No. 1 gave two fist blows, one on the nose and the other on the left cheek of Mallikarjuniah. He gave first blows with his right hand. Due to the blows, Mallikarjuniah fell down forcibly. Subsequently, he told Narayan Pardeshi (P.W. 11), and Hassan Sayyed (P.W. 12), about accused No. 1 giving blows to Mallikarjuniah. Bhimshen Koli (P.W. 9), is working as a coolie at the Railway Station, Miraj. According to him, on the day of the occurrence, at about 10.30 p.m., he was going towards the Railway Station. He noticed Mallikarjuniah who was standing on the road, lighting his cigarette accused Nos. 1 and 2 came there from the station side. Accused No. 1 gave two fist blows to Mallikarjuniah when he was lighting the cigarette. He gave one blow on the right cheek and the other on the nose. As result of the blows, Mallikarjuniah fell forcibly on the ground. IIahi Babalal Sarvan (P.W. 10), is having a tea stall on the footpath on the northern side of the road near the Railway Station. He gave one blow on the right cheek and the other on the nose. As result of the blows, Mallikarjuniah fell forcibly on the ground. IIahi Babalal Sarvan (P.W. 10), is having a tea stall on the footpath on the northern side of the road near the Railway Station. According to him, on the day of the occurrence, at about 10.30 p.m. he was standing by the side of his tea stall. He noticed Mallikarjuniah coming from the side of Sukhnivas Hotel and proceeding towards the Railway Station. Mallikarjuniah stopped near the shop of one Patil and started lighting his cigarette. Accused Nos. 1 and 2 came from the station side. They stopped near Mallikarjuniah. Accused No. 1 gave two fist blows, one on the left cheek and the other on the nose of Mallkiarjuniah. Due to the blows, Mallikarjuniah fell down on the ground. In order to corroborate the evidence of Ram Durve, the prosecution has examined two witnesses Narayan Pardeshi (P.W. 11) and Hassan Sayyed (P.W. 12). Pardeshi also has a teal stall near the place of the occurrence. But he had not witnesses the occurrence. He heard a thud sound of a person falling and, therefore, turned back to see what the matter was. He noticed that Mallikarjuniah had falled on the ground. Many persons has assembled there. Ram Durve told him that accused No. 1 had given blows to Mallikarjuniah. Hassan Sayyed is running a pan shop near the place of the occurrence. He was also not an eye-witness to the occurrence. He was in his shop and heard a sound of something falling. He turned round and saw that a person had fallen. He went near him. He recognised that person to be Mallikarjuniah. Many people assembled there. After Mallikarjuniah was taken away in a tonga, Ram Durve came and told him that accused No. 1 had given two fist blows on the face of Mallikarjuniah. Now, the question is whether the eye-witnesses had seen accused No. 1 giving fist blows to Mallikarjuniah or they were subsequently procured to say so, for reasons best known to them only. The main infirmity in their evidence which strikes us is their conduct at the time of the occurrence. Now, the question is whether the eye-witnesses had seen accused No. 1 giving fist blows to Mallikarjuniah or they were subsequently procured to say so, for reasons best known to them only. The main infirmity in their evidence which strikes us is their conduct at the time of the occurrence. Ram Durve has admitted in his cross-examination that the people who had assembled after Mallikarjuniah had fallen down were saying that he was addicted to drunk and he used to get fits. Pardeshi has also stated that the people, who had assembled were saying that Mallikarjuniah had fallen due to fit. Shinde (P.W. 6), has stated that on being informed that Mallikarjuniah was lying unconscious on the Station Road, he had immediately gone there with his peon Yovhan (P.W. 18) and call-boy Kambale. He has stated that Mallikarjuniah was addicted to liquor and on seeing him, his impression was that he might have fallen because of consumption of liquor. It appears from the evidence that it was the impression not only of Shinde but of almost everyone present that Mallikarjuniah had probably fallen as he was under the influence of liquor or as a result of an attack of some fit. It is for this that the people, who had assembled, tried to give first-aid which is ordinarily given to a person losing consciousness because of an attack of fit. Bhimshen Koli has stated that smell of a chappal was given to Mallikarjuniah by taking it near his nose. IIahi has also stated that Bhimshen gave smell of a chappal and Babu gave smell of onion to Mallikarjuniah. Pardeshi has also stated that Bimshen gave smell of a chappal bay taking it near the nose of Mallikarjuniah. Hassan sayyed has also stated to the same effect. Now, all the people assembled on the spot after Mallikarjuniah had fallen were under the impression that Mallikarjuniah had consumed liquor and either as a result of being under its influence or because he had an attack of fit, he had fallen down. None of the three eye-witnesses had told any of the persons assembled that accused No. 1 had dealt fist blows on the nose and left cheek of Mallikarjuniah and because this he had fallen down. This is a very serious infirmity in the evidence of the eye-witnesses. None of the three eye-witnesses had told any of the persons assembled that accused No. 1 had dealt fist blows on the nose and left cheek of Mallikarjuniah and because this he had fallen down. This is a very serious infirmity in the evidence of the eye-witnesses. Ram Durve has admitted that he was present at the spot right upto the time Mallikarjuniah was taken away from the spot in a tonga. He claims to have told Pardeshi and Hassan Sayyed, after Mallikarjuniah was removed from the spot, that accused No. 1 had dealt fist blows to Mallikarjuniah. This evidence appears to us to be wholly artificial. If he found it necessary to tell the above two persons immediately after Mallikarjuniah was carried away that accused No. 1 had given fist blows to Mallikarjuniah, there is no reason why he should not have told the people assembled, when they were labouring under the impression that Mallikarjuniah had probably fallen down either because of drunkenness or because of an a tack of fit, that was not true and the reason why he had fallen down was that accused No. 1 had given two fist blows on the face of Mallikarjuniah. Bhimshen Koli and IIahi were also present and they too had not told anyone present at the spot that accused No. 1 had given fist blows to Mallikarjuniah and that was the reason why he had fallen down. From the evidence of Shinde, the story given out by the three eye-witnesses that accused No. 1 had given two fist blows on the face of Mallikarjuniah does not appear to be at all probable. The evidence of Shinde shows that none of the three eye-witnesses must have said that accused No. 1 had given two fist blows on the face of Mallakarjuniah. Their non-stating this would be unnatural when the people assembled were discussing that Mallikarjuniah in all probability had fallen down and become unconscious either due to drunkenness or due to an attack of fit. Shinde arranged for Mallikarjuniah to be removed in a tonga to his residence. Ordinarily, had this been a case of an assault, the eye-witnesses who were present would have given out that story and Shinde would have lodged a complaint to the police. But nothing was done. Shinde arranged for Mallikarjuniah to be removed in a tonga to his residence. Ordinarily, had this been a case of an assault, the eye-witnesses who were present would have given out that story and Shinde would have lodged a complaint to the police. But nothing was done. Even as late as on 1st January, 1973, every one was under the same impression that Mallikarjuniah had fallen down because of excessive consumption of liquor. Edward Hastings (P.W. 19), who was working as an Area Officer at Miraj at the material time, had sent a report to the D.O.S., Hubli. on 1st January, 1973 which is at Ex. 56. It is pertinent to note that in this report Hastings has stated that Shinde was under the impression that Mallikarjuniah might have fallen down as usual due to excesive consumption of liquor. Although Hastings mentioned in his report that he could not positively say whether the injuries sustained by Mallikarjuniah were on account of the fall or being hit by some one, he has also stated that as per his knowledge Mallikarjuniah had no enmity with anybody at Miraj who could have caused the injuries. The report thus shows that even on 1st January, 1973. It was not being suspected that accused No. 1 had assaulted Mallikarjuniah. That was not possible if there were really eye-witnesses to the occurrence and they were present all along until Shinde came on the scene and arranged to remove Mallikarjuniah in a tonga to the Rest House where he was staying. The First Information Report (Ex. 65) in the case was lodged on 1st January, 1973 after the death of Mallikarjuniah. Head Constable Ishvar Sutar (P.W. 24), who lodged it, has stated that it was on 30th December, 1972 at 1.40 p.m. that, for the first time, he was asked to make an inquiry into the injuries sustained by Mallikarjuniah. It is not clear from his evidence whether any information was received at the Police Station that Mallikarjuniah had sustained injuries as a result of an assault by someone. It appears from Ex. 65 that on the basis of the information furnished by IIahi the First Information Report was lodged. It is not clear from his evidence whether any information was received at the Police Station that Mallikarjuniah had sustained injuries as a result of an assault by someone. It appears from Ex. 65 that on the basis of the information furnished by IIahi the First Information Report was lodged. If IIahi was really an eye-witnesses to the occurrence and it was on the basis of the information furnished by him that the First Information Report was lodged, one should not have expected any discrepancy in the story of IIahi and that given out in Ex. 65. What is stated in Ex. 65 is that accused No. 1 and one unknown person had given strokes to Mallikarjuniah on account of which he had died. IIahi has admitted that he knows both the accused, which is natural looking to the fact that they are working at the Railway Station and the witness is carrying on his business in the vicinity of the station. If, therefore, IIahi had supplied the information on the basis of which the First Information Report (Ex. 65) was given, it was not expected that the other assailant of Mallikarjuniah would be referred to as an unknown man and the report would say that both the assailents had given strokes to Mallikarjuniah. Not only from the conduct of the three eye-witnesses themselves but also from the conduct of the accused, it can be seen that accused No. 1 had not given fist blows to Mallikarjuniah on his face and the eye-witnesses are not speaking the truth. Although some suggestion has been made to these witnesses in cross-examination that they wanted to oblige the police and have falsely deposed against accused No. 1, yet if accused No. 1 is not able to show any reason for the eye-witnesses to falsely depose against him, that cannot be a ground for readily accepting their evidence if their evidence is such that no reasonable person would be prepared to accept it. Bhimshen Koli has admitted that after Mallikarjunah fell down, both the accused cried, "Oh, Master has fallen down". This spontaneous expression, both of surprises and anxiety, could not be there if accused No. 1 were to give two fist blows on the face of Mallikarjuniah and he were to fall down as a result of the blows. Bhimshen Koli has admitted that after Mallikarjunah fell down, both the accused cried, "Oh, Master has fallen down". This spontaneous expression, both of surprises and anxiety, could not be there if accused No. 1 were to give two fist blows on the face of Mallikarjuniah and he were to fall down as a result of the blows. It is also in evidence that the two accused did not try to run away from the spot. On the other hand, they helped the other people who had gathered in their efforts to make Mallikarjuniah regain is consciousness. Accused No. 1 brought a glass of water and sprinkled it on the face of Mallikarjuniah. Both the accused helped Shinde in lifting Mallikarjuniah and putting him in the tonga. Accused No. 1 even accompanied Mallikarjuniah in the tonga to the Rest House and the other accused went on foot. That has been deposed to by Yovhan. Although there are some other infirmities in the evidence of the eye-witnesses, the above, in our view, are sufficient to cast a serious doubt on their evidence that accused No. 1 had given two fist blows on the face of Mallikarjuniah and that they had witnessed this. We, therefore, reject their evidence. The defence is quite-probable in view of the fact that ethyl alcohol was found in the viscera and medical evidence is that the injuries were possible on account of a fall on hard ground. At any rate, once the evidence of the three eye-witnesses is discarded, there is no evidence to connect accused No. 1 with the injuries of Mallikarjuniah. The next question about the nature of the offence committed by accused No. 1 consequently does not Survive. In the result, we allow the appeal, set aside the conviction of the appellant-accused No. 1 as well as the sentence imposed on him for the offence under section 304, Part II of the Indian Penal Code and acquit him. His bail bond is cancelled. -----