JUDGMENT Mohd. Hamid Hussain, J. 1. THESE are two connected appeals. Criminal Appeal No. 2205 of 1972 is by Ram Asrey and Hori Lal. Criminal Appeal No. 2277 of 1:972 is by Shyam Lal alias Shyam Kumar and Prem Gond. All the four appellants were tried in Sessions Trial No. 146 of 1971 and the learned Sessions Judge by his judgment and order dated 1-8-1972 has convicted Ram Asrey and Hori Lal under Section 326/34 IPC and sentenced each of them to 5 years R. I. Ram Asrey has further been convicted under Section 323 IPC and sentenced to one year's R. I. Both the sentences of Rani Asrey have been directed to run concurrently. Appellants Shyam- Lal and Prem Gond have been convicted under Section 302/34 IPC and each of them has been sentenced to imprisonment for life. 2. THE prosecution case, in brief, was that Tikori had taken a loan from appellant Shyam Lal which he did not repay and on account of it there was verbal altercation and Shyam Lal bore enmity towards Tikori. In this back ground of enmity the prosecution case is that on 23-10-1970 at about 9 p.m. while Tikori along with Ram Lakhan (PW 1) was returning to his house and had reached near the Pokhara of Sakul-dhara, the four appellants suddenly emerged from the lane. At that time Ram Asrey and Hon Lal were each armed with Lathi and Shyam Lal and Prem Gond were each armed with Gandasa. THE first to be assaulted was Ram Lakhan who received a Lathi injury on his head. Ram Lakhan and Tikori tried to run but Tikori was over taken at a distance of about 100 paces and surrounded and assaulted by the four appellants. As a result of the alarm witnesses Sheo, Bhola and Baddhu arrived at the scene. THE appellants ran away. As a result of the injuries Tikori had fallen and become unconscious. Tikori was taken on a rikshaw by his brother Jhanna (PW 5) and Ram Lakhan (PW 1) to the S. S. Gupta Hospital. Other witnesses, including Buddhu, accompanied the injured to the hospital. Dr. D. N. Srivastava (PW 2) on 23-10-1970 at 9.30 p. m. medically examined the injuries suffered by Tikori and noted the same in the injury report Ex. Ka-4 prepared by him. Tikori could not survive and died an hour later in the hospital. Other witnesses, including Buddhu, accompanied the injured to the hospital. Dr. D. N. Srivastava (PW 2) on 23-10-1970 at 9.30 p. m. medically examined the injuries suffered by Tikori and noted the same in the injury report Ex. Ka-4 prepared by him. Tikori could not survive and died an hour later in the hospital. THEreafter a report was scribed by Buddhu on the dictation of Ram Lakhan (PW 1) who took it to the police Station Behlupur which was at a distance of 4 furlongs from the scene of occurrence. On the basis of the written report Head Constable Jagannath Pandey (PW 6) on 23-10-1970 at 11.45 p.m. registered a case under Sections 302/323 IPC against the appellants. Investigation was taken up by Sub-Inspector P. N. Rai (PW 12) who interrogated the witnesses and reached the scene of occurrence and prepared the site plan Ex. Ka-32. Sub-Inspector Pashupati Nath Pandey (PW 9) held the inquest. Injured Ram Lakhan was medically examined on 24-10-1970 at 9.15 a. in. by Dr. Hari Shankar Rai (PW 3) who prepared injury report Ex. Ka-6. 3. POST-mortem examination on the dead body of Tikori was conducted on 24-10-1970 at 1 p.m. by Dr. B. K. Bharadwaj (PW 7) who prepared the postmortem examination report Ex. Ka-10 wherein he noted 10 ante-mortem injuries consisting of 7 incised wounds and 3 abrasions. In the opinion of Dr. Bharadwaj the probable age of the victim Tikori was 40 years and his death was the result of shock and haemorrhage as a result of injuries on the head and neck. 4. THE appellant remained absconding and proceedings under Sections 87 and 88 CrPC were initiated against them and thereafter the appellants surrendered in court. Appellants pleaded not guilty. The defence of appellant Prem Gond was of alibi in support of which he examined three defence witnesses, Pyare Lal (DW 2) and B. N. Lal Srivastava (DW 3). The remaining three appellants Ram Asrey, Hori Lal and Shyam Lal denied their participation in the occurrence. 5. THE prosecution in support of the case examined 14 witnesses of whom two are the eye-witnesses, namely, Ram Lakhan (PW 1) and Jhanna (PW 5). One Laxman Prasad (PW 8) was examined to state of having seen the appellants shortly before the occurrence. 5. THE prosecution in support of the case examined 14 witnesses of whom two are the eye-witnesses, namely, Ram Lakhan (PW 1) and Jhanna (PW 5). One Laxman Prasad (PW 8) was examined to state of having seen the appellants shortly before the occurrence. It is not necessary to specify the names of the other prosecution witnesses examined in the case, some of whom have already been mentioned, above. 6. THE trial court did not accept the defence version of false implication and also rejected the plea of alibi put for- ward by appellant Prem Gond. THE trial court, however, found the testimony of Ram Lakhan (PW 1) and Jhanna (PW 5) as well as the circumstantial evidence of Laxman Prasad (PW 8) inspiring confidence and corroborated by the medical evidence of the doctors. Accordingly, the trial court held the four appellants guilty and convicted and sentenced them as stated above. Sri A. D. Giri, learned counsel, has appeared on behalf of appellant Prem Gond, and Sri C. S. Saran, learned counsel, has appeared on behalf of appellants Hori Lal, Ram Asrey and Shyam Lal. Sri Goswami, the learned Deputy Government Advocate has appeared on behalf of the State. Learned counsel have been heard and with their assistance the evidence on the record has also been examined and scrutinized. 7. THE question that calls for consideration in the case is whether the testimony of the two eye-witnesses Ram Lakhan (PW 1) and Jhanna (PW 5), who are definitely interested witnesses and inimical to appellant Shyam Lal, could be implicitly relied upon for upholding the conviction of the appellant recorded by the trial court. Ram Lakhan (PW 1) in the trial court has corroborated the version initially given by him in the written first information report. He has stated that he had gone at about 8 p. m. to purchase vegetables from the market and at about 8.30 p. m. was returning along with Tikori to his house when suddenly the four appellants emerged from the lane. Two of them, Ram Asrey and Hori Lal, were each armed with lathi, while Shyam Lal and Prem Gond were each armed with Gandasa. He further asserted that at the time of occurrence witness was carrying a torch. Two of them, Ram Asrey and Hori Lal, were each armed with lathi, while Shyam Lal and Prem Gond were each armed with Gandasa. He further asserted that at the time of occurrence witness was carrying a torch. According to him the appellants inflicted a Lathi blow on him and on receiving the lathi blow witness ran towards west and Tikori also took to his heels but Tikori was surrounded by the appellants about 100 paces away and then assaulted with lathis and Gandasa. On the alarm raised by the victims Jhanna, Buddhu and other persons arrived at the scene and saw the occurrence. He further stated that there was electric light at the place of occurrence. He stated that Tikori after receiving injuries fell to the ground and became unconscious and at that time Tikori's wife came from her house which was 40 paces away. He further stated that Tikori was taken to the [hospital on a rickshaw where he was medically examined by the doctor, but Tikori died in the hospital and thereafter witness dictated a report; of the incident to Buddhu who scribed the report and the witness took the report and lodged it at the Police Station Bhelupur. In cross-examination he stated that his house was about 50 paces from the house of Tikori. He admitted that he and Jhanna (PW 5) had both appeared against appellant Shyam Lal who was being prosecuted in a case under Section 307 IPC. He could not remember if the night of occurrence was a moonlit night or a dark night. He admitted that only one lathi blow was given on his head. He denied the defence suggestion that he had not witnessed the occurrence and had lodged a false report as an eye-witness of the occurrence. 8. JHANNA (PW 5), who is the own brother of Tikori deceased, has corroborated the statement of Ram Lakhan with regard to the material particulars of the assault, the members of assailants and the respective weapons in their hands. JHANNA stated that his brother Tikori had taken a loan from appellant Shyam Lal and for non-payment of the loan there was quarrel between Tikori and Shyam Lal. JHANNA further stated that he was returning to his house when he: heard the alarm and reached the scene of occurrence and saw the four appellants assaulting Tikori with their respective weapons. JHANNA stated that his brother Tikori had taken a loan from appellant Shyam Lal and for non-payment of the loan there was quarrel between Tikori and Shyam Lal. JHANNA further stated that he was returning to his house when he: heard the alarm and reached the scene of occurrence and saw the four appellants assaulting Tikori with their respective weapons. This witness has not stated about having seen Ram Lakhan being given a lathi blow by the assailants. JHANNA stated that his brother Tikori had fallen to the ground as a result of. the injuries and had become unconscious, and that he (witness) and Ram Lakhan took Tikori to the hospital but Tikori died after an hour. In cross- examination JHANNA admitted that he was being prosecuted in a criminal case initiated by Shyam Lal. He further admitted that he and Ram Lakhan had both appeared as a witness against Shyam Lal who was being prosecuted in a case under Section 307 IPC. From the statements of both the eye-witnesses Ram Lakhan (PW 1) and Jhanna (PW 5) it is evident that these witnesses had enmity with Shyam Lal and were inimical witnesses. According to Ram Lakhan (PW 1) he suffered an injury from lathi on his head. He had immediately gone with victim Tikori to the hospital where the doctor had examined the victim and noted his injuries. Ram Lakhan remained in the hospital for sufficiently long time and in his presence Tikori died in the hospital, and thereafter Ram Lakhan dictated a report of the incident to Buddhu and then proceeded to the police station to lodge the report. It is surprising that Ram Lakhan did not care to have his injury examined while he was in the hospital for a couple of hours immediately after the occurrence and before lodging of the report. Ram Lakhan (PW 1) was medically examined on 24-10-1970 at 9.15 a.m. by Dr. Hari Shanker Rai (PW 3) who prepared injury report Ex. K-6 wherein the following injury was noted :- "Contusion 1 X 1/3" X skin deep on mid of the forehead 5 1/2" away from and above left ear." The injury was simple. According to the prosecution case the assault was launched by the appellants on account of the non-payment of the loan by deceased Tikori to Shyam Lal. K-6 wherein the following injury was noted :- "Contusion 1 X 1/3" X skin deep on mid of the forehead 5 1/2" away from and above left ear." The injury was simple. According to the prosecution case the assault was launched by the appellants on account of the non-payment of the loan by deceased Tikori to Shyam Lal. If that was so there was no reason for the assailants to have inflicted a lathi blow on the head of Ram Lakhan. Their main target, according to the prosecution version, was Tikori. It is not the case of the prosecution that Ram Lakhan tried to intervene and to save Tikori from the assault and in so doing he received the injury at the hands of the appellants. If the appellants had suddenly emerged from the lane and inflicted a lathi blow which landed on the middle of the head of Ram Lakhan the injury could not be so superficial as was noted by the doctor, namely, contusion 1/4" x 1/3" x skin deep. It was the first blow which had been launched by the assailants and it could not have in any manner been soft blow. Secondly, Ram Lakhan stated that at about 8 p. m. he had gone to the market to purchase vegetables and was returning at about 8.30 p. m. with the deceased. It is not usual for a person to go to purchase vegetables at 8 p. m. in the night. The reason for Ram Lakhan accompanying the deceased does not appear to inspire confidence, especially in the background of the enmity which existed between Ram Lakhan and appellant Shyam Lal. Jagannath Pandey (PW 6) is the Head Constable who registered the case on the basis of the report handed over by Ram Lakhan. He has stated that there was slight injury on the head of Ram Lakhan which had bled. On examining the injury as described in the injury report Ex. Ka-6 prepared by Dr. Hari Shanker Rai (PW 3) it is rather difficult to accept the statement of the Head Constable that the injury had bled. In view of the above it would be unsafe to accept the presence of Ram Lakhan (PW 1) at the time of occurrence without corroboration from independent witness. 9. Ka-6 prepared by Dr. Hari Shanker Rai (PW 3) it is rather difficult to accept the statement of the Head Constable that the injury had bled. In view of the above it would be unsafe to accept the presence of Ram Lakhan (PW 1) at the time of occurrence without corroboration from independent witness. 9. THE evidence of Jhanna (PW 5), who is the real brother of the victim Tikori also cannot be implicitly relied upon. Had Jhanna been present at the time of occurrence or he had rushed on hearing the shouts to the scene of occurrence, it was normally expected that he would have intervened to save his brother from the assault and he would have also received injuries at the hands of the assailants. THEre is not a single injury on Jhanna. From his evidence it is clear that he had appeared as a witness in a case against appellant Shyam Lal and was inimical towards the appellant. In the circumstances his testimony does not inspire confidence. 10. IN the first information report three other persons namely, Buddhu, Bhola and Sheo have been mentioned as eye-witnesses. It has been stated by Ram Lakhao (PW 1) that Buddhu has died. Neither Bhola nor Sheo have been examined in the case. The second eyewitness Jhanna (PW 5) has asserted that Bhola had sided with the appellants and he had no confidence that Bhola would support the prosecution case. This statement of Jhanna was recorded on the 28th April, 1972. Earlier to this on the 19th April, 1972 the District Government Counsel had moved an application (Paper No. Kha-12/1) to the effect that three eye-witnesses had not come to the court and the case be adjourned. Accordingly, the court adjourned the case to 20th April, 1972. There is no application on the record that Bhola has become hostile to the prosecution and should be discharged. Had an application been made to that effect it was open to the appellants to contest that assertion, and in that event the court could have examined Bhola as a court witness in order to see whether he had been won over by the appellant. Had an application been made to that effect it was open to the appellants to contest that assertion, and in that event the court could have examined Bhola as a court witness in order to see whether he had been won over by the appellant. Jhanna (PW 5) in cross-examination has admitted that before he reached the scene of occurrence besides Bhola and Buddhu several pedestrians had also arrived at the scene, but then he clarified his statement by saying that by that time the appellants had run away. If that be so Jhanna himself could not claim to be an eye-witness of the occurrence. Since the prosecution has chosen to examine only two of the eye-witnesses, namely, Ram Lakhan (PW 1) and Jhanna (PW 5) who are definitely interested and inimical witnesses, their testimony cannot be implicitly relied upon especially when their evidence shows that other witnesses had also reached the scene of occurrence and witnessed the assault. In the case Thakur v. State, AIR 1955 Alld. page 189 it has been held by a Division Bench of this Court that where there is evidence that independent witnesses had seen the incident then in that event the production of interested witnesses and not any independent witness creates a doubt that independent witnesses have been withheld for oblique motive. 11. IT may also be noted that the prosecution has sought to produce evidence of a circumstantial nature by examining Laxman Prasad (PW 8). He had deposed that on the date of occurrence at about 8.30 p. m. he saw the four appellants near the Pokhra and that about half-an-hour later he learnt that Tikori had been murdered, that he again reached the Pokhra where he found Ram Laxman, Jhanna and others, that he was told by them that the appellants had assaulted Tikori and ran away. In cross-examination he admitted that he did not tell the Investigating Officer that Jhanna and others had told him that the appellants had assaulted Tikori and bolted away. He further stated that when he saw these appellants in the beginning near the Pokhra they had no weapons. He has stated that they were empty handed. IT is not understood as to how lathis and Gandasas have been attributed Jo the appellants. In these Circumstances his evidence is of no avail to the prosecution. 12. He further stated that when he saw these appellants in the beginning near the Pokhra they had no weapons. He has stated that they were empty handed. IT is not understood as to how lathis and Gandasas have been attributed Jo the appellants. In these Circumstances his evidence is of no avail to the prosecution. 12. IT is pertinent to remark that the case of the prosecution that the occurrence took place because Tikori refused to pay the loan advanced by Shyam Lal appellant is not at all convincing. The evidence of Jhanna and Ram Lakhan is wholly vague in this regard. IT is not known what amount of loan was actually taken by Tikori from Shyam Lal. IT is also not known when this loan was taken. The prosecution attempted to lead evidence that there took place a quarrel between Shyam Lal and Tikori about four days before the occurrence when Shyam Lal made demand of his money, but this fact is conspicuously absent from the first information report, as well as from the statements made by the witnesses under Section 161 CrPC to the Investigating Officer during investigation. There- fare, the very basis for the alleged assault falls to the ground. The result is that the prosecution has failed to establish the case against the appellants beyond reasonable doubt. Both the appeals are allowed. The respective convictions of the four appellants under the various sections and the sentences awarded thereunder are set aside, and they are acquitted of the charges for which they were tried. 13. APPELLANTS Ram Asrey and Hori Lal are on bail, they need not surrender and their bail bonds are discharged. APPELLANTS Shyam Lal and Prem Gond are in jail. They shall be released forthwith unless wanted in any other connection. Appeals allowed.