JUDGMENT 1. - S.B. Criminal Appeal No. 307 of 1975 preferred by Pooran and S. B, Criminal Appeal No. 436 of 1975 filed by Rameshwar are directed against one 1 and the same judgment of the Sessions Judge. Bharatpur dated June 10, 1975, by Which Pooran was convicted under sections 308 read wish section 34 and section I 394 read with Section 34 I.P.C. while Rameshwar was convicted under section 308 and section 394'read with section 34, I.P.C. and each of them was sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 200/- in default of payment of fine to further suffer rigorous imprisonment for two months on the first court find on the second to undergo rigorous imprisonment f for three years and to pay a fine fine `of Rs. 100/-, in default of payment of line to suffer rigorous imprisonment for one month. The substantive sentence awarded to each appellant on both the counts were, however, ordered to run concurrently. 2. The incident that led to the prosecution of Pooran and Rameshwar appellants may be briefly described as follows: 3. On September 16, 1974 Shri Bangali, P.W. 1 was coming back from Bharatpur to this village Noh at about 7.45 p.m. In the Way when he reached near the Abadi area of his village, the two appellants met him and made an attack on him. Rameshwar appellant caught hold of his whist and inflicted a blow on his stomach with a knife while Pooran appellant kicked him on his hip and forcibly took out Rs. 17/-, from his pocket. Thereafter, both the appellants disappeared from the place of occurrence in different directions. Bangali made a hue, and cry winch at first attracted his uncle Jagannath to the spot. Jagannath also raised an outcry and on hearing his cries Nathi and Chitar also came there. As Shri Bangali had become ,unconscious so he was immediately removed to Bharatpur hospital and was admitted there in as an indoor patient. The Medical Officer at Bharatpur Hospital, however, informed the police and upon his information Mool Chand Dixit, Head Constable, Police outpost Mathura Gate, Bharatpur, rushed to the spot and recorded the statement of Shri Bangali injured which was treated a as first information report and on the basis of which a formal first information report (Ex. P. 3) in the prescribed form was recorded. P. 3) in the prescribed form was recorded. Shri Bangali was metrically examined by (Dr. Kantiaiya Lal Sharma, P. W. 6, who found the following injury on his body "Incised wound 1" x 1 /2" x deep upto peritoneal cavity through which omentum 1, 1/2" x 1, 1/2" diameter coming out. 4. In the opinion of the Doctor, the injury was grievous in nature and'was caused by a sharp-edged weapon and it was likely to cause,the death of the injured. After the medical examination of the injured, the Investigation Officer inspected the site and prepared a site plan and the site inspection memo & collected other necessary evidence in the case. On completion of investigation the police filed a charge-sheet against both the appellants under Section 307 and 394, I. P. C, in the court of the Munsiff and Judicial Magistrate, Bharatpur, who upon finding a prima-facie case exclusively triable by the court of Session, committed the two appellants to the' court of the Sessions Judge, Bharatpur for trial under sections 307, 394 and 326 I.P.C. The Sessions Judge charge sheeted both the appellants under section's 307 and 394/34, I. P.C. and recorded their pleas, Both the appellants pleaded not guilty to the charges and claimed to be tried. The Sessions Judge conducted the trial and, upon close and,careful scrutiny of the entire evidence on the record, came to a conclusion that Pooran appellant was guilty under sections 308/34 and 391/34, I.P.C, while Rameshwar appellant was held to have committed offences under section 301 simipliciter and section 394 read with section 34, I. P. C. Accordingly, the Sessions Judge convicted and sentenced the appellants, in the manner indicated above. 5. I have carefully perused the record and heard Mr. N.L. Tibrewal, learned counsel for the appellant Pooran and Mr. V.S. Dave, Advocate appearing on behalf of Rameshwar appellant and Mr. Shivraj Behari, Public Prosecutor, for the State. At the outset I may observe that as both the Sessions, Judge, Bharatpur, dated June 10, 1975, and as common question of law and facts arise in them, they are decided together by my single judgment. 6. Now I take up both the appeals for discussion. Mr. Shivraj Behari, Public Prosecutor, for the State. At the outset I may observe that as both the Sessions, Judge, Bharatpur, dated June 10, 1975, and as common question of law and facts arise in them, they are decided together by my single judgment. 6. Now I take up both the appeals for discussion. Mr. N L. Tibrewal, learned counsel for Pooran appellant strenuously urged before me that the role ascribed to Pooran in the commission of the crime was that he gave a kick on the hip of Bangali, injured, and thereafter took out a sum of Rs, 17/-, from his pocket when the latter had fallen on the ground. According to the submission of Mr. N.L. Tibrewal. the prosecution could not succeed in proving beyond reasonable doubt that a kick was given to Bangali injured, by the appellant and thereafter Bangali was robbed of Rs. 17/- which he had in his pocket, It was further urged by Mr. N.L, Tibrewal that Pooran has been falsely Implicate in this case out of enmity as Pooran's mother Mst. Premawati had filed a criminal case against Bangali, injured, under section 323 and 452, I.P.C. prior to this incident. Likewise, Mr. V.S. Dave, learned counsel for Rameshwar, vehemently contended that the evidence of Bangali and Jagannath is highly unbelievable and the Sessions Judge, Bharatpur, committed a grave error in placing reliance upon it for convicting Rameshwar. It was further urged by him that darkness had set in prior to the occurrence and Bangali, injured, could not possibly see the faces of the assailants and he falsely implicated Pooran and Rameshwar because Pooran's mother had instituted a criminal case of `Marpeet' against him primo to the occurrence and Rameshwar refused to oblige him by giving evidence against the matter of Pooran. 7. Mr. Shivraj Behari Mathur. 7. Mr. Shivraj Behari Mathur. Public Prosecutor, for the State contended that there is no reason to disbelieve the evidence of Bangali, injured, and his uncle Jagannath from whose evidence it is established beyond reasonable doubt that Pooran appellant, also took part in the assault made on Bangali and that he kicked Bangali on his hip and took out money from his pocket, It was further urged by the Public Prosecutor that enmity is a doubt edged weapon and it was highly probable that the two appellants made an attack on him and deprived him of his money on account of enmity between him and Pooran and so the prosecution case cannot be thrown merely on the ground that Pooran's mother Mst, Premawati had filed a criminal case against Bangali under sections 323 and 452 I.P.C, some time prior to the occurrence. As against Rameshwar, the contention put forward by Mr. Shivraj Behari Mathur is that this appellant was previously known to Bangali. injured, and so much darkness had not set in as to completely mar the vision of the injured and to make it impossible for him to see the faces of the two appellants. It was further urged by him that the evidence of Bangali does not suffer from any serious infirmity and was rightly relied upon by the trial Judge. 8. I have considered the rival contentions mentioned above. The prosecution case against Pooran appellant is that he participated in the attack on Bangali along with Rameshwar and gave a kick to the injured on his hip and took out a sum of Rs. 17/-, from his pocket. The prosecution has examined Bangali, injured. Jagannath P.W. 3 and Nathi P.W. 4, to substantiate its case. Bangali stated in his deposition at the trial that after he has received an injury on the right side of his stomach with a knife at the hands of Rameshwar, Pooran, appellant, kicked him and took out Rs. 17/-, from the pocket of his pentaloon In his cross examination, he clearly admitted that mother of Pooran Mst. Premawati had instituted a criminal case of `Marpeet' against him and his father prior to the occurrence. Jagannath P.W. 2 also stated in his deposition at the trial that Pooran gave a kick to Bangali and took out a handkerchief from his pocket. Premawati had instituted a criminal case of `Marpeet' against him and his father prior to the occurrence. Jagannath P.W. 2 also stated in his deposition at the trial that Pooran gave a kick to Bangali and took out a handkerchief from his pocket. Jagannath was cross examined by the learned counsel for the appellant in the trial court on this point and was confronted with his previous statement before the police marked Ex. D. 1, in which he did not state that Pooran had kicked Bangali and had taken out a handkerchief from his pocket. When confronted with his previous statement Ex. D. 1, Jagannath could not afford any reasonable explanation for omission of this material fact against Pooran. He merely stated that he could not say why this fact was not stated in his police statement. The third witness examined by the prosecution is Nathi, P.W. 3. He did not claim to have seen Pooran kicking Bangali and taking out a sum of Rs. 17/-from his pocket. His evidence at the trial was that when he reached place of occurrence on hearing cries, he saw Bangali lying on ground having a knife injury on his stomach. The evidence of Jagannath. P.W. 2 and Nathi P.W. 3, therefore, cannot be relied upon for the purpose of corroboration of the evidence of Bangali. injured, qua Pooran appellant. 9. Now remains the solitary statement of Bangali. injured. Conviction of an accused can legally be based on the testimony of a single witness, provided it is of sterling worth and does not suffer from any infirmity. In the instant case the evidence of Bangali, injured, does not find support from the medical testimony so far as it relates to the giving of kick on his hip by Pooran appellant. Dr. Kanhaiya Lal Sharma, P.W. 6, did not find any injury or swelling on the hip of Bangali injured at the time of his medical examination on September 16, 1974, He detected one incised wound only on the abdomen of the injured as indicated, above. If Bangali had been kicked by Pooran on his hip, there was every possibility that he might have sustained the injury or the welling at least. If Bangali had been kicked by Pooran on his hip, there was every possibility that he might have sustained the injury or the welling at least. Apart from this, the evidence of Bangali does not inspire confidence because in his cross examination he clearly states that immediately before the assault made on him, the two appellants were hiding themselves behind `Karali' bush where form they ere seen coming out by him. He further admitted the `Karali' bush lay at a distance of 5 or o paces from the place where he was stabbed by Rameshwar. His above statement stands contradicted by the testimony of P.W. 5 Ramvijai Singh, who denied the existence of any `Karali' bush, at that place. On the other hand, Ramvijai Singh admitted that there was a sand dune of the length of about one furlong and its height was about 10 or 15 ft. Another circumstance which throws considerable doubt on the veracity of his evidence is that darkness had set in at that time and it was not easy for him to recognise the faces of the assailants in the absence of sufficient light. Bangali was cross-examined on this point in the trial court. He merely stated that there was sun-set but so much darkness had not set in as to mar the vision. He further admitted that about half an hour prior to the occurrence the sun had set, it gan Nath, on the other hand, claimed to have s en the occurrence in the light of the torch. His evidence is that when he reached the spot on hearing cries of Bangali, he threw light of torch on the assailants and verbally asked them what they were doing. Hearing this, they ran away. From the evidence of Jagannath this much is evident that darkness had set in and he had used torch to see the faces of the miscreants. As stated earlier, Jagannath is not a reliable witness, because in his statement at the trial he claimed to have seen both the appellants loitering near the sand-dune some time prior the the occurrence. This fact was not disclosed by him in his statement Ex. D. 1 before the police with which he was confronted at the trial. When confronted with his previous statement Ex. This fact was not disclosed by him in his statement Ex. D. 1 before the police with which he was confronted at the trial. When confronted with his previous statement Ex. D. 1, before the police, he admitted that he had omitted to state this fact before the police on account of lapse of memory. There is another contradiction between his statement at the trial and his previous statement Ex, D- 1 before the police which adversely affects his credibility. The contradiction is that in his deposition at the trial he claimed to have seen Rameshwar trying to pull the knife with which he had stabbed Bangali. He further professed to have seen that Bangali was preventing Rameshwar from pulling the knife with his hand. He was confronted with his previous statement Ex. D. 1 on this point, wherein he did not disclose these facts to the police. He could not afford any reasonable explanation for his omission to state these material facts before the police. As stated earlier, he did not even say to the police that he had seen Pooran appellant kicking on his hip and taking out a handkerchief from his pantaloon. Hence it is highly doubtful that Bangali and Jagannath could see the assailants in the prevailing darkness. 10. The story of taking out a sum of Rs. 17/-, by Pooran from the pocket of the pantalon of Bangali is not believable because Bangali stated in his cross examination that he had brought Rs. 17/-, from his mother when he started from there in search of employment at Bharatpur. He further stated that this amount of Rs. 17/- was given to him by his mother for fetching goods but he admittedly did not purchase goods. The reason given out by him for not purchasing the goods is that he was on foot. The reason is not convincing, because he could easily bring goods worth Rs. 17/- while going back to his house on foot. In this manner, the evidence of Bangali is not of sterling worth because it does suffer from serious infirmities, as indicated above. Over and above all, the evidence of the injured cannot be accepted also because Bangali admitted in his cross- examination that a criminal case of `Marpeet' against him had been instituted by the mother of Pooran prior to the occurrence. Over and above all, the evidence of the injured cannot be accepted also because Bangali admitted in his cross- examination that a criminal case of `Marpeet' against him had been instituted by the mother of Pooran prior to the occurrence. There is no reason why Rameshwar stabbed Bangali, because the latter admitted in his cross-examination that prior to the occurrence his relations with Rameshwar were cordial and he used to live in his company. Consequently, upon careful review of the entire evidence. I am of the view that the prosecution could not prove the guilt of both the appellants beyond reasonable shadow of doubt and the appellants are entitled to benefit of doubt. 11. Hence, I accept both the appeals filed by Pooran and Rameshwar, set aside their convictions and sentences under Section 308/34 and 394/34 I.P.C. and under section 308 and 394/34xLP.C. respectively and acquit them of the same. The appellants are on bail. They need not surrender to their bail bonds, which are hereby cancelled. Sd/- K.D. Sharma, Actg. C.J. *******