JUDGMENT 1. - This is an appeal under Section 378(i) and is directed against the judgment dated 12th April, 1974 pissed by the Sessions Judge, Kota in Sessions Trial No. 12/1974, by which all the accused including the respondent Gajendra Kumar were acquitted. Although a petition for grant of appeal was filed against all the four accused, but this Court vide its order dated 18th September, 1974 granted leave to appeal under Section 378(3) Cr.P C. against Gajendra Kuraar only The application for leave was rejected against Nand Kishore, Mahaveer and Tajendra Singh. 2. One Idris informed the police vide report Ex P.1, on 2.5.1973 at about 11.00 AM of the occurrence which has given rise to this case. His version was that while be was sitting on his shop and one of his customer was standing on the road near his shop, two boys came from Bahadui Bazar side, on a cycle and caused accident with his customer. There was some altercation in which boys gave three four blows two others intervened and saved him. Immediately thereafter with an interval of 10 minutes 10-12 boys armed with Hockey sticks and other sticks started beating and said that he would be killed They also started looming bis shop Some persons came to help him, at this stage and these two boys took out the knives. When Liaquat Husain came to save idea, the boys then attacked liaquat Husain and stabbed him. After chase one of the boy was caught but the other persons started bearing him and so that boy was also left out. Liaquat Husain fell down in a serious condition and was taken to hospital by one Ratan Lal in a tempo he alleged that he and Liaquat Husain both were beaten with an intention to kill and his watches of the value of Rs. 8,00/- were looted by the boys. Boys left one cycle which was produced. According to him boys were young and he can identify them. 3. The case was registered by the S.H.O. Liaquat Husain died on account of the injuries. 4. 8,00/- were looted by the boys. Boys left one cycle which was produced. According to him boys were young and he can identify them. 3. The case was registered by the S.H.O. Liaquat Husain died on account of the injuries. 4. After investigation accused were challaned under Sections 302/34, 323 and 147 I.P.C. During the trial 12 witnesses were examined by the prosecution and the defence examined one witness As mentioned earlier the Sessions Judge came to the conclusion that there was no reliable evidence against the accused persons and consequently acquitted all of them, So far as accused Gajendra Kumar is concerned the Court was of the opinion that the prosecution has failed to prove beyond reasonable doubt, presence of accused Gajendra Kumar in the occurrence. The Sessions Judge also of the opinion that investigating Officer acted in highly improper manner in arresting Gajendra Kumar without any definite information about his identification. He also found that Nisamudia witness has been created by Investigation Officer afterwards Alter giving a finding that Nizamudin has given false evidence he directed notice to be issued to him to show cause why he should not be prosecuted for perjury 5. In this appeal, the learned Public Prosecutor has invited our attention to the statement of PW.l Idaris, PW.11 Nizamudin, two eye witnesses who have identified Gajendra Kumar and alleged that he participated in this crime along with other accused. 6. We have carefully read the entire evidence of PW.l and PW.11 Nizamudin We have also gone through the entire judgment of the trial court. Since the other witnesses PW. 5 Harish Kumar, PW 6 Sunil, PW 7 Satya Narain, PW 8 Nawal Kishore and PW 10 Santos Kumar have all of them turned hostile and have not said anything about the accused Gajendra Kumar, it would not be necessary to deal with their evidence The learned Public prosecutor, realising this obvious infirmity right by submitted that except PW. 1 and PW.l 1, the other eye witnesses have been rightly dis-believed and rejected by the lower Court. 7. We would now like to consider first the statement of PW.l Idaris. An important feature of his testimony is that even putting his evidence at the best has not said that Gajendra Kuom accused actually stabbed Liaquat Husain. 1 and PW.l 1, the other eye witnesses have been rightly dis-believed and rejected by the lower Court. 7. We would now like to consider first the statement of PW.l Idaris. An important feature of his testimony is that even putting his evidence at the best has not said that Gajendra Kuom accused actually stabbed Liaquat Husain. All that he has said is that he was at the distance of 32 to 35 paces and there was great rush between him and Liaquat Husain at that time an all he could see was the back of the two boys who were holding knives. This is clear and categorical admission of the witness that he has not seen actual stabbing by the knife on the person of Liaquat Husain. Since according to him two boys whose back he could see were holding the knives and he has not seen actual stabbing, his testimony cannot be treated as conclusive evidence to show that Gijeadra Kumar used the knife and stabbed Liaquat Husain. 8. Yet another important feature which creates serious infirmity in the testimony of this witness is that being the author of the FIR he mentioned in it that the person who stabbed was a tall and stout person. Contrary to it the witness admits that Gajendra Kumar is a short statures person. Obviously neither Gajendra Kumar was known to him by name nor he gave description of Gajendra Kumar in the FIR. He further admits that in the police statement and the statement before the committing Magistrate he did not give identification marks of Gajendra Kumar nor did he state that Gajendra Kumar accused gave beating by hockey sticks and other sticks or that he left the cycle. 9. Another serious infirmity comes into picture by statement of P W. 12 Subha Karan, who states that on 18-5-81 he arrested Gajendra Kumar on an information of some informant whose statement was not recorded. None of the witness gave the name of the Gajendra Kumar nor they have given identification marks and therefore, the Sessions Judge was correct in observing that he was arrested without any definite information. None of the witness gave the name of the Gajendra Kumar nor they have given identification marks and therefore, the Sessions Judge was correct in observing that he was arrested without any definite information. It has also come or the record that Gajendra Kumar complained that he was seriously beaten by the police and he remained in the hospital from 19th May, 1973 to 25th May, 1973 Since the accused remained in the hospital and was sent to Jail, absence of the evidence of the medical authority or the Jail authority that he was kept baparda before identification is also circumstance against the prosecution. It would be relevant here to note that Gajendra Kumar did complain before the Magistrate that he has been shown to the witnesses earlier. In there circumstances we are of the opinion that no value can be attached to the identification of the accused by this witness. Mr. Sharma has not been successfully able to assail the criticism of the witnesses by the Sessions Judge in his detailed and well reasoned judgment As discussed above, independently also we are of the same view that PW. 1 Idaris has fail:d to prove that Gajendra Kumar inflicted stabbed wound to decease Liaquat Husain. 10. Once the statement of PW. 1 is rejected and he fails to inspire confidence, the only evidence is left of PW. 11 Nizamudin. 11. The first instant circumstance making the presence of this witness doubtful is the non mention of his name by PW. 1 Idaris. PW. 1 Idaris was the shop-keeper and his presence on the cannot be doubted as the trouble started with him. Since Idaris has not mentioned the name of Nizamudin any where in the police statement, statement before committing Magistrate and the statement in the trial court, even when he mentioned that the eye witnesses were Harish and Ratan Lal, it becomes very difficult to believe that Nizamudin was an eye witness. It is not without significant that Nizamudin belongs from Kota and is real uncle of deceased Liaquat Husain. He failed to snow his presence in the Kota because the story which he gave that he was working with Ashoka Watch Company was not substantiated. Curiously enough he dis-appears from Kota only one or two days after occurrence and after remaining in his village for three four months he joined service in Department. He failed to snow his presence in the Kota because the story which he gave that he was working with Ashoka Watch Company was not substantiated. Curiously enough he dis-appears from Kota only one or two days after occurrence and after remaining in his village for three four months he joined service in Department. According to his version he was called from the village after five or six days being examined by the police. In case he was an eyewitness, since he was close relative of deceased, his remaining silent and non disclosure of name of the accused to the police, who arrived in the Hospital, where the witness took the deceased, makes his story highly doubtful. His version that he told Idaris in presence of the police that he has seen occurrence appears to be a fabricated story because if that would have been so neither the police would allow him to go village without being examined, tor his name would remain conspicuously absent in all statement of Idaris. The version given by this witness is also contradictory to the statement of PW. 1 Idaris. On all material points Idaris has been contradicted by Nizamudin and these includes the manner of the incident, mentioning of beating place, incident and names of the eye witnesses etc. It is not necessary to tipcat and mention all these contradiction afresh as the Sessions fudge has extracted them in para No 12 of the judgment and on a close scrutiny of the evidence of both these witnesses, we are in agreement with the appreciation of the evidence by the Sessions Judge on this point, as in our view Nizamudin fails to inspire confidence and appears to be a concocted witness. 12. Since we are not inclined to take a different view of the evidence of PW. 1 Idaris and PW. II Nizamudin, it is not necessary to discuss defence evidence, although the learned Sessions Judge has placed reliance upon the statement of DW. 1 Ratan Lal who according to FIR intervened in the first occurrence, such the occurrence and took Liaquat Husain to Hospital when he fell down after stabbing. The production faded to pride Ratan Lal and he appeared as DW. 1. He expressly deposed that Gajendra Kumar was not present on the scene of occurrence. 13. 1 Ratan Lal who according to FIR intervened in the first occurrence, such the occurrence and took Liaquat Husain to Hospital when he fell down after stabbing. The production faded to pride Ratan Lal and he appeared as DW. 1. He expressly deposed that Gajendra Kumar was not present on the scene of occurrence. 13. We are conscious of the fact that present one is an appeal against the acquittal and the same cannot be lightly interfered with Since we are of the opinion that there is no reliable evidence against the accused Gajendra Kumar and the prosecution has miserably failed to prove and establish even presence of Gajendra Kumar at the time of occurrence, we have got no hesitation in upholding the judgment of the trial court. 14. The result is that this appeal is dismissed and the acquittal of respondent Gajendra Kurrar is up-held. The respondent Gajendra Kumar after acquittal was permitted to remain on bail during the pendency of the appeal. The bail bonds are therefore, cancelled and it is ordered that the accused respondent who is already on bail need not surrender.Appeal Dismissed. *******