JUDGMENT 1. Ram Sanehi, his brothers son, Satya Prakash, Mata Din and Munshi of village Gadhanpur Qazi, P. S. Telegram, Jai Lal, Bansi Lal, Ram Babu resident of village Kachati Purwa, P. S. Indergarh, Ram Autar resident of Vishanapur, P. S. Indergarh and Shyam Behari resident of village Bhajwia, P. S. Indergarh of District Farrukhabad have appealed against their conviction under Sections 302 read with Section 149 I. P. C. and sentence of imprisonment for life by the IIIrd Additional District and Sessions Judge, Farrukhabad in Sessions Trial No. 204 of 1974 (State v. Ram Sanehi and others). Ram Sanehi has further been convicted under Section 148 I. P. C. and the remaining appellants under Section 147 I. P. C. Matadin has been convicted under Section 324 I. P. C. and the remaining appellants under Section 324 read with Section 149 I. P. C-The trial Judge has awarded a sentence of 18 months rigorous imprisonment under Section 324 I. P. C., one years rigorous imprisonment under Section 148 and six months rigorous imprisonment under Section 147 I. P. C. to all the appellants and has directed the sentences to run concurrently. The appellants have also challenged in this appeal their conviction under these sections and the sentence awarded to them thereunder. 2. The case of the prosecution as disclosed in the first information report lodged by P. W. 1, Rameshwar Dayal at about 9 30 P. M. on November 7, 1973 is that there was enmity between appellant Ram Sanehi and him on account whereof he had implicated him, his son, Radhey Shyam and his servant, Bhajanlal and some other relatives in the case relating to a murder that took place in his family which was pending trial in the Court of Session. He (the reporter) was a co-sharer in a groundnut field belonging to Patrakhan and Kanhai near the tube-well of Rajendra Kurmi in his village. Patrakhan and he were warming themselves in the field of Patrakhan where they were looking after the groundnut crop. His son Radhey Shyam and his servant Bhajanlal as well as Rajendra son of Ram Kisun, Narain son of Ishwari, Latif Khan son of Jumman of his village as well as Govind Prasad of village Bhagwantapur who was the son of his wifes brother, came and started playing cards in the Kothri of the tube-well of Rajendra in the light of the lantern. He (the reporter) went up to the Kothri and told his son to stop playing cards and go round the other fields whereupon his son said that he would go after sometime. Soon thereafter when the reporter had reached the field, a little ahead of the Kothri at about 7-30 P. M., appellants Ram Sanehi armed with a Pharsa Satya Prakash armed with a Gandasa, Munshi armed with lathi, Matadin with a Pharsa and gunny bags, Jai Lal Dhobi with Kulhari, Banshi with a gun, Ram Babu, son'-in-law of Ram Sanehi with a pistol, Shyam Behari with a gun, Ram Autar and two other persons who were not known but could be recognised armed with lathis reached there and surrounded the door of the Kothri and fired two shots. They dragged out his son Radhey Shyam and servant Bhajanlal from the Kothri and said that they would not be left alive that day and that after dismembering them and packing them up in the gunny bags they would be thrown in the river for which gunny bags had also been brought. Saying this, the appellants started assaulting the two persons. The reporter and others who were present in the Kothri escaped and after coming out thereof raised an alarm. Narain set a heap of Makreda afire on account whereof there was sufficient light, while Govind Prasad was coming out of the Kothri, Matadin hit him with a pharsa which caused injuries to his head in the back portion. On hearing the alarm, the village people started firing their fire-arms so that the assailants ran away towards south. The reporters son Radhey Shyam and his servant, Bhajanlal had been assaulted by the assailants with the common object of causing their death with the weapons with which they were armed and the injuries resulted in their death. The report, as mentioned above, was lodged at about 9-30 P. M. at P. S. Talgram which is at a distance of about two miles from village Gadnapur where the incident took place. When this report was lodged, the Station Officer, Sudersan Lal Awashthi was present at the Police Station. According to him, the investigation was started forthwith and he recorded the statements, inter alia, of the reporter, Rameshwar Dayal and the village Chowkidar Shiv Baran who had accompanied the reporter to the police station. He then proceeded to the scene of incident. When this report was lodged, the Station Officer, Sudersan Lal Awashthi was present at the Police Station. According to him, the investigation was started forthwith and he recorded the statements, inter alia, of the reporter, Rameshwar Dayal and the village Chowkidar Shiv Baran who had accompanied the reporter to the police station. He then proceeded to the scene of incident. There is dispute about this claim of the Station Officer and of the time at which he took the various steps in the investigation as claimed by him. We will advert to them later However, we may notice at this stage that Govind Prasad, who subsequently appeared as P. W. 2 in the trial as an eye-witness of the incident, was medically examined by Dr. J. P. Tripathi (P. W. 7) at the Dispensary at Talgram at 10-45 A. M. on November 8, 1973. He had found on his person an incised wound 0V2 cm x 1 cm deep over back of neck running transversely, 13 cm above prominence of 7th cervical vertebra which was a simple injury and appeared to have been caused by a cutting weapon, the duration being about half a day. This injury report is Ex. Ka-6. Dr. V. P. Bansal (P. W. 8) carried out the post mortem examination on the body of deceased Radhey Shyam on November 9, 1973 at 3-30 P. M. at Fatehgarh. He found the following nine ante mortem injuries on his body : 1. Incised wound 3" x 1" bone deep on the head mid line. 2. Incised wound 2" x 1" bone deep, with the envision of scalp of wound area 3" above left ear. 3. Incised wound 3%" x " x bone deep on left side face extending from left angle of nose left ear, underlying bone is fractured. 4. Incised wound 7" x 1" bone deep on the left side face from left angle of mouth to beyond left ear. 5. Incised wound 3" x x bone deep on the left chin extending from middle of lower lip to the left side of teeth of left lower jaw are also absent. 6. Incised wound 5" x 1" x bone deep on the back of left fore-arm, round the thickness of aim. 7. Incised wound 2" x 1" x bone deep on the inner border of left palm & wrist. 8. 6. Incised wound 5" x 1" x bone deep on the back of left fore-arm, round the thickness of aim. 7. Incised wound 2" x 1" x bone deep on the inner border of left palm & wrist. 8. Incised wound 5" x " x chest cavity deep on the right side chest wall, 3" below (r) nipple. 9. Incised wound 11" x 4" on the abdomen, transverse, 1V4" above the umbilicus, intestines are coming out of the wound. 3. He also found 10 ounces of digested food in the stomach and in his opinion, the death of Radhey Shyam was due to shock and hemorrhage as a result of the aforesaid ante mortem injuries which were sufficient in the ordinary course to have caused his death. The postmortem report is Ext. Ka. 7. The postmortem examination on the body of Bhajanlal, deceased, was also done by the same Doctor at 4-30 P. M. on 9-11-1973 which revealed the undermentioned eight ante mortem injuries on it: Injuries - Nature, exact position and measurements mentioning direction specially in incised wounds. Ante mortem injuries 1. Incised wound 3" x " bone deep at back of (R) ear is also incised. 2. Incised wound 3" x " x muscle deep on the (R) side face lower-wards. 3. Incised wound 6" x 2" at (R) side neck cutting skin muscles, vessels, bone R spinal cord at the level of 2nd & 3rd cervical vertebrae. 4. Incised wound 4" x 1" x chest cavity deep on the front of chest mere on (R) side. 1" below the right collar bone. 5. Incised wound 1" x " muscle deep on left side chest 1V" from left nipple and at 7 Oclock position from left nipple. 6. Incised wound 1" x 1" x bone deep on the back of left hand involving ring and little finger. 7. Incised wound 4" x " x bone deep on the palm left side, middle, transverse. 8. Incised wound 2" x 1" x bone deep at frontal of left forearm, lower ?, both underlying bones are fractured. 4. The stomach contained four ounces of digested food and the death of Bhajanlal was caused by shock and hemorrhage 011 account of the aforesaid ante mortem injuries. The post-mortem examination report is Ext. Ka-8. Injuries were sufficient, in the opinion of the Doctor, to cause the death of Bhajanlal. 5. 4. The stomach contained four ounces of digested food and the death of Bhajanlal was caused by shock and hemorrhage 011 account of the aforesaid ante mortem injuries. The post-mortem examination report is Ext. Ka-8. Injuries were sufficient, in the opinion of the Doctor, to cause the death of Bhajanlal. 5. The investigation was completed by the Station Officer who submitted the charge-sheet (Ex. Ka-27) against the appellants on January 12, 1974, Appellant, Matadin was arrested on November 9, 1972 but Ram Sanehi surrendered in court 011 November 17, 1973, while Satya Prakash did so on November 21, 1973. This appellant gave out his age to be about 10 years at the time of his examination in the court during the trial on February 20, 1975. P. W. 1, Rameshwar Dayal, said in answer to a question put to him during his cross-examination that the age of Satya Prakash was about 15 years. However, from the judgment under appeal, it appears that according to the trial judge, Satya Prakash appeared to be of about 10 years of age. We find a reference to that effect in the judgment in paragraph 24 and more particularly in paragraph 43. 6. P. W. 1 Rameshwar Dayal, P. W. 2 Govind Prasad, P. W. 5 Latif and P. W. 6 Pati Rakhan claim to be the eye-witnesses of the incident in which Radhey Shyam and Bhajanlal lost their lives, P. W. 5 Latif has, however, not supported the prosecution case and was cross-examined by the prosecution itself. When his statement recorded during the investigation was put to him, he denied having made it. His testimony is of no avail to the prosecution. 7. P. W. 1, Rameshwar Dayal is the father of deceased, Radhey Shyam. He gave out details of his enmity with the appellant Ram Sanehi and of the incident in question. According to him, appellants Munshi, Ram Autar and two other unknown persons caught hold of the two victims while appellants Ram Sanehi and Satya Prakash assaidted deceased Radhey Shyam while appellants Matadin and Jai Lal assaulted deceased Bhajanlal. The appellants with the fire-arms fired their shots. According to him, appellants Munshi, Ram Autar and two other unknown persons caught hold of the two victims while appellants Ram Sanehi and Satya Prakash assaidted deceased Radhey Shyam while appellants Matadin and Jai Lal assaulted deceased Bhajanlal. The appellants with the fire-arms fired their shots. P. W. 6, Pati Rakhan is, according to this witness, the son of Laxman who is the son of Mihilal who is also a co-accused with this witness in the case relating to the murder of Raghubar Dayal, father of appellant Satya Prakash and brother of appellant Ram Sanehi. Two brothers of appellant Ram Sanehi, namely, Raghubar Dayal and Raj Kumar and his nephew Sati Prasad (son of Raj Kumar) have been murdered and the witness along with his deceased son Radhey Shyam and servant Bhajanlal and others are accused in that case. Appellant Ram Sanehi, according to the witness, used to oppose him on all matters in the village. 8. P. W. 2, Govind Prasad, described the actual assault by saying that appellants Ram Sanehi, Satya Prakash, Banshi, Ram Babu and Shyam Behari caught hold of deceased Radhey Shyam and assaulted him while appellants Jai Lal, Munshi, Ram Autar and the two unidentified persons as well as Matadin assaulted deceased Bhajanlal Matadin struck a blow with pharsa which hit the witness in his head. According to this witness, the report of the incident was not written out in his presence though he stayed at the scene of the incident till 7 A. M. next morning. The Investigating Officer did not enquire from him anything that night though he interrogated Matadin accused (appellant) the same night and noted it down. He kept Matadin in custody throughout the period that the witness was there and did not do anything else at the scene of the incident nor did he obtain any source of light there that night. 9. P. W. 6 Pati Rakhan who is the grand-son of Mihilal, a co-accused with P. W. 1 Rameshwar Dayal in the case relating to the murder of the brothers of appellant Ram Sanehi, stated that Radhey Shyam was assaulted by the appellants Ram Sanehi and Satya Prakash while Bhajanlal had been assaulted by Matadin and Jai Lal. 9. P. W. 6 Pati Rakhan who is the grand-son of Mihilal, a co-accused with P. W. 1 Rameshwar Dayal in the case relating to the murder of the brothers of appellant Ram Sanehi, stated that Radhey Shyam was assaulted by the appellants Ram Sanehi and Satya Prakash while Bhajanlal had been assaulted by Matadin and Jai Lal. When questioned in cross-examination about it, eventually he said that he had said so far the first time in his statement before the court but later said that he had mentioned it to the Investigating Officer as well. He denied that he did not reveal the names of the persons who had surrounded the door of the Kothri nor of those who had entered it and of those who had been dragged out therefrom to the Investigating Officer. He acknowledged that he stated before the Investigating Officer that 10 or 12 miscreants had surrounded the door of the Kothri and had started firing. He also acknowledged that he had stated in the court for the first time that appellant Ram Sanehi had said that he would dismember the victims and get them thrown in the river further that he could give no reason for the omission of the fact in his statement before the Investigating Officer that when Govind Prasad came out Matadin hit him with a pharsa Exts. Kha 2 and Kha 3 are portions of the statement of this witness made by him to the Investigating Officer in which lie had stated that 10 or 12 miscreants surrounded the door of the Kothri and started firing and that out of them some went inside and caught hold of two persons and brought them out. That, in substance, is the testimony of the three eyewitnesses. 10. Having considered the evidence and the circumstances of the case, we feel that it is not safe to uphold the conviction of any of the appellants. The story with which the prosecution came to court lacks circumstantial guarantee. As many as three persons, namely, the appellants Banshi Lal, Shyam Behari and Ram Babu are said to be armed with fire-arms, the first two with guns and the third with a pistol. Ram Babu is the son-in-law of appellant Ram Sanehi who admittedly, was on extremely inimical terms with the reporter and his family. As many as three persons, namely, the appellants Banshi Lal, Shyam Behari and Ram Babu are said to be armed with fire-arms, the first two with guns and the third with a pistol. Ram Babu is the son-in-law of appellant Ram Sanehi who admittedly, was on extremely inimical terms with the reporter and his family. It is, indeed, surprising that these persons rest content with firing blank shots even though the prosecution story suggests that the appellant Ram Sanehi, along with these persons, had gone to the scene of the incident with the avowed object of killing Radhey Shyam and Bhajanlal. The remaining appellants other than Ram Sanehi, Satya Prakash, Mata Din and Jai Lal were armed with lathis but we find that not a single lathi injury was caused to the victims of the assault. Injury No. 4 found on the body of deceased Bhajan Lal and injury No. 8 found on the body of deceased Radhey Shyam clearly appear to have been caused by a spear. Yet, surprisingly, none of the assailants is said to be armed with a spear. 11. Appellant Satya Prakash, who appeared to be about 10 years in age at the time of the trial, which took place nearly a year after the incident, has been attributed a role which, to our mind, does not appear to be probable, P. W. 1 Rameshwar Dayal stated in answer to a question put by the trial Judge that he had also inflicted fatal injuries on deceased, Radhey Shyam. To use his words, "Radhey Shyam ko Ram Sanehi, Satya Prakash ne kata our Bhajanlal ko Matadain our Jai Lal ne kata". According to P. W. 2 Govind, appellants Ram Sanehi, Satya Prakash, Banshi, Ram Babu and Shyam Behari caught hold of Radhey Shyam and assaulted him while according to P. W. 6 Pati Rakhan, "Ram Sanehi va Satya Prakash ne Radhey Shyam ko kata ..........' We may recall that Satya Prakash is said to have been armed with a Gandasa, which is a heavy cutting weapon. A tender lad of merely nine years of age cannot reasonably be expected to play the role which has been attributed to Satya Prakash by the prosecution witnesses. 12. We have noticed above the actual description of the assault upon the two deceased persons by the appellants. A tender lad of merely nine years of age cannot reasonably be expected to play the role which has been attributed to Satya Prakash by the prosecution witnesses. 12. We have noticed above the actual description of the assault upon the two deceased persons by the appellants. While according to P. W. 1 Rameshwar Dayal and P. W. 6 Pati Rakhan, deceased Radhey Shyam had been assaulted by appellant Ram Sanehi and his nephew Satya Prakash and deceased Bhajanlal had been assaulted by appellants Matadin and Jai Lal, according to the injured witness Govind (P. W. 2) appellants Banshi, Ram Babu and Shyam Behari had also joined appellants Ram Sanehi and Satya Prakash in assaulting deceased Radhey Shyam and appellants Ram Autar and two other persons with lathis had joined appellants Jialal and Munshi in assaulting deceased Bhajan Lal. According to the last witness, when the appellants came, no one said anything and they quietly caught hold of Radhey Shyam and Bhajanlal and thereafter appellant Ram Sanehi said that he would cut those two persons into small pieces and throw them in the river after packing them in the gunny bags. According, however, to P. W. 6 Pati Rakhan, when appellant Matadin struck a pharsa blow at P. W. 2 Govind, appellant Ram Sanehi said as to why had he hit him for Govind had nothing to do in the matter and thereafter said that he would dismember the two victims and throw them in the river after packing them up in the gunny bags. The disparity so noticed tends to cast doubt upon the claim of the witnesses that they were giving out the true version of the incident and of the participants therein. The injured witness Govind (P. W. 2) indiscriminately mentioned a number of persons from amongst the (appellants who assaulted the two deceased victims. The earliest version of the incident as given out by the reporter also 'does not specify the assailants of the two deceased persons and attributes the assault on them to the appellants generally. Later, while in the witness-box the reporter specified the assailants of deceased Radhey Shyam and deceased Bhajanlal. It is difficult, in the circumstances to place implicit reliance upon the version given out by these witnesses. 13. The appellants belong to different villages. Later, while in the witness-box the reporter specified the assailants of deceased Radhey Shyam and deceased Bhajanlal. It is difficult, in the circumstances to place implicit reliance upon the version given out by these witnesses. 13. The appellants belong to different villages. There is no indication in the earliest version contained in the first information report as to why did they combine together in perpetrating the alleged crime. Village Kacheri-Purva is at a distance of six miles from village Gadanpur Kazi where the incident took place. To this village belong the appellants Jai Lal, Banshi Lal and Ram Babu. Village Bisenpur to which appellant No. 8 belongs, adjoins village Kacheri-Purva. Village Majuria to which the last appellant belongs is about two miles away from village Gadanpur Kazi. No particular reason has been revealed by the prosecution for the various appellants to come together and participate in the offence. 14. A lot of emphasis has been placed on behalf of the prosecution upon the fact that an empty cartridge, pellets etc. were found by the Investigating Officer near the scene of the incident when he visited it on November 8, 1973 and in respect whereof a recovery memo (Ext. Ka 25) was prepared by him. This, according to the learned counsel for the State, corroborated the prosecution story. We are unable to agree. The existence of the empty cartridge, pellets etc. at the scene of the incident does not necessarily lead to the conclusion that the incident took place in the manner alleged by the prosecution for we have it from P. W. 6 Pati Rakhan during investigation that 10 or 12 miscreants surrounded the door of the Kothri and started firing (vide Ext. Kha 2). The possibility of the recovery aforesaid having been made on account of the shots fired by unidentified miscreants at the scene of the incident is clearly there. There is much to be desired in the way the investigation was carried on in the case. We have noticed earlier that P. W. 2 Govind Prasad claimed that he was present near the scene of the incident throughout the night between November 7 and 8, 1973 while the Investigating Officer was there. According to that witness, the Investigating Officer talked to appellant Matadin and recorded some notes, yet he was not put under arrest forthwith. We have noticed earlier that P. W. 2 Govind Prasad claimed that he was present near the scene of the incident throughout the night between November 7 and 8, 1973 while the Investigating Officer was there. According to that witness, the Investigating Officer talked to appellant Matadin and recorded some notes, yet he was not put under arrest forthwith. In his statement, Sudersonlal Awasthi, the Investigating Officer stated that he arrested appellant Matadin on November 9, 1973 at about 4.30 P. M. If, as asserted by the injured witness Govind Prasad P. W. 2 upon whose testimony great reliance is placed by the prosecution, appellant Matadin had been interrogated on the night between November 7 and November 8, 1973, it is intriguing as to why he was not arrested until November 9, 1973. A reading of the deposition of the Investigating Officer in cross-examination, particularly in so far as it relates to the arrest of appellant Matadin, indicates that the manner in which he proceeded with the investigation left much to be desired. We may, however, leave it at that. 15. The above are the broad features of the case which impel us to take the view that it is .not safe to uphold the conviction of the appellants upon the evidence led by the prosecution in the case. We, accordingly, allow the appeal and set aside the conviction of the appellants and the sentence awarded to them by the trial Judge. Appellants Ram Sanehi, Matadin and Jai Lal are in jail. They shall be set at liberty forthwith unless required in connection with some other offence. The remaining appellants are on bail. They need not surrender thereto. Their bail bonds are discharged.