JUDGMENT 1. - This appeal by Jabbar accused is directed against his conviction under Section 302 IPC and sentenced to life imprisonment by the learned Additional Sessions Judge, Kota, dated 16th August, 1980. 2. According to the prosecution case, a written report Ex PI was lodged at police station Kunadhi, Kota on 26th May, 1979, at 11 a.m. by Jafar Mohammed PW.l. In the report it was stated that on 26th May, 1979, at 6 a.m. Shri Sirajuddin had gone towards the river for performance of routine course of nature. While he was returning back from the river at about 6.30 am , Jabbar Haleem, @ Kalu Kaloo, Sattar s/o Ghas, Gaffar, Sattar s/o Kaloo, Sabbir, Salam, Nannu and Ramzani way-laid Sirajuddin and with common intention gave him beating behind the house of Kaluji. Sirajuddin had suffered injuries on his body and on both the hands Sirajuddin was lying unconscious and was unable to speak on account of the injuries. Sirajuddin was given beating by Jabbar by a Gadinsi, Haleem Sattar s/o Kaloo, Sabbir, Salam, Nannu and Ramzani had lathis in their hands All of them had injured Sirajuddin with lathis and Gandasis with a common intention of killing him. Sirajuddin is lying unconscious who had been admitted in the hospital. On this the police registered a case under Sections 307, 324, 341, 147, 148, 148 and 329 IPC. During the investigation the accused persons were arrested and lathis ate were recovered at the instance of the accused persons. Sirajuddin succumbed to the injuries on 14th June, 1979, after 19 days of the injuries. A case was, therefore, challaned against all the ten accused persons under Section 147, 148, 149, and 302 I.P.C. 3. The prosecution examined 10 witnesses in support of its case including Dr. M. M. Misra PW.2, who had examined the injured Sirajuddin on 26th May, 1979 at 9.15 am According to him there were following three injuries on the body of Sirajuddin vide Injury report (Ex.P3):- 1.Lacerated wound 1/2" x 1/4" x 1/10" with swelling on surrounding and on left parietal and scalp. Bidding Doubtful fracture. 2. Bruise 2" x 1/2" on middle left leg back. 3. Abrasion 3/4" x 1/4" on lower ⅓ left chest back. Bidding Doubtful fracture. 2. Bruise 2" x 1/2" on middle left leg back. 3. Abrasion 3/4" x 1/4" on lower ⅓ left chest back. Thereafter the postmortem of Sirajuddin was also conducted by PW 2 and according to him the injury No.l was sufficient in the ordinary course of nature to cause death of Sirajuddin. The two witnesses Shri Bashir PW 5 and Shri Kamruddin PW 6 were declared hostile. As regards PW 1 Shri Jafar Mohammed, who had lodged the first information report, the learned trial Court found that he was not an eye witness of the occurrence. The learned trial Court, however, placed reliance on the statement of PW 4 Usman only and convicted Jabbar under Section 302 IPC and acquitted the remaining nine accused persons. The accused Jabbar in the aforesaid circumstances has filed the present appeal. 4. It is contended by Mr. Arvind Gupta, learned counsel for the appellant that there were serious infirmities in the statement of the solitary eye witness Usman and no reliance can be placed on his statement. It is pointed out that Usman was admittedly the sisters son of the deceased Sirajuddin. According to Usman he had also gone in the morning along with bis material uncle Sirajuddin towards the river side but he did not have any talk with Sirajuddin either at the time of going towards the river side or while returning back. Though, according to the story narrated by him Kamruddin tried to intervene and save Sirajuddin but he did not come to the reduce of his maternal uncle and went to his house. Even after reaching home he did not narrate the incident to any of his relations and according to the learned counsel for the accused all this conduct clearly shows that Usman was not an eye witness of the occurrence otherwise he being a near relation of Sirajuddin deceased should have gone for the rescue of Sirajuddin and in normal course of human conduct must have narrated the matter to the other relations. It is further argued that though according to Usman, he had told in the statement given to the police that the accused Jaboar inflicted injuries by a Gandasi but subsequently in the court at the trial state, stated that the Gadansi was used from the reverse side. It is further argued that though according to Usman, he had told in the statement given to the police that the accused Jaboar inflicted injuries by a Gandasi but subsequently in the court at the trial state, stated that the Gadansi was used from the reverse side. This improvement was made in order to corroborate the injury No. 1 which according to the injury report, was a lacerated wound. It is further contended that in the statement before the Court Usman Stated that Jabbar had a lathi in his hand which had a sharp edged piece of iron at its and which used to be called as Gandasi. It was pointed out that according to the discovery made at the instance of the accused Jabbar under Section 27 of the Evidence Act no such lathi containing a sharp edged piece of iron at its end was recovered On the contrary, an ordinary lathi having some rounded wires was recovered from him. Thus, the statement of Usman does not find any corroboration from the recovery of such lathi at the instance of accused Jabbar. It is also argued that though Usman had tried to show Jafar Mohammed PW 1 as an eye witness but the trial Court itself did not believe Gafar Mohammed to be an eye witness of the occurrence. The story of the prosecution that all the ten accused persons attacked and took part in the assault, was not found proved and nine of accused persons were acquitted though according to Usman all the ten persons had assaulted Sirajuddin by Gandasi and lathis but according the injuries found on his body there was only one lacerated wound on the left parietal and scalp and the rest of the two injuries were a bruise on middle left leg and abrasion on lower left chest back. This clearly shows that Usman had given an exaggeration to the prosecution case and was not telling the truth It is also contended that Usman had admit ed at one stage in the cross-examination that Sirajuddin was given beating by all the accused persons for about an hour. During all the period all the accused persons were inflicting injuries od Sirajuddin. Sirajuddin got injuries in his head, thighs and hips. During all the period all the accused persons were inflicting injuries od Sirajuddin. Sirajuddin got injuries in his head, thighs and hips. He was unable to say as to which of the accused had inflicted injuries on what part of the body of the deceased From the aforesaid statement it is contended that the story as narrated by Usman that all the accused persons inflicted injuries on Sirajuddin for one hour is totally falsified by the injuries found by the doctor. There are no injuries on thighs and the hips of Sirajuddin as stated by Usman and he was unable to say specifically as to which accused inflicted injures on what part of the body of Sirajuddin In view of these circumstances it is argued that when 9 accused persons have been acquitted disbelieving the statement of Usman, his evidence cannot be relied upon against Jabbar accused also It is further argued that in the F I R. lodged by Jafar Mohammed, the nature of Usman was net mentioned as an eye witness. 5. On the other hand, learnel Public Prosecutor argued that even if there are minor discrepancies in the statement of Usman, his entire evidence cannot be discarded. Even though Usman might have stated in his police statement that Jabbar had inflicted injuries by a Gandasi, but in his statement before the Court he had clearly stated that Jabbar had used the reversed of the Gandasi and in these circumstances there is no reason to disbelieve his statement There was nothing unnatural if Usman did not narrate the story immediately as he was horrified. It is also argued that even if there was some exaggeration on the part of Usman, his entire evidence cannot be discarded. 6. We have given careful considerations to the arguments advanced by both the side-, and have gone through the entire record carefully. Prosecution had examined Bashir PW 5. Kamruddin PW 6 and Jafar Mohammed PW 1 as eye witnesses of the occurrence. Admittedly PW 5 Bashir and PW 6 Kamruddin did not support the prosecution case and were declared hostile. As regards PW 1 Jafar Mohammed, though PW 4 Usman has tried to show that Jafar Mohammed was an eye witness, but from the statement of Jafar Mohammed himself it appears that he did not reach the spot and was not an eye witness. As regards PW 1 Jafar Mohammed, though PW 4 Usman has tried to show that Jafar Mohammed was an eye witness, but from the statement of Jafar Mohammed himself it appears that he did not reach the spot and was not an eye witness. Learned trial Court also held that Jafar Mohammed PW 1 was not an eye witness of the occurrence. Thus, there remains the solitary statement of PW 4 Usman. He is not an independent witness but is an interested witness as he is closely related to deceased Sirajudding being bis sisters son. The prosecution case as regards the other 9 accused person has been totally disbelieved and even the statement of Usman PW 4 as regards the other nine accused persons has been discarded and thus it is difficult to accept his evidence as regards the accused appellant also. In Prem Singh v. State of Punjab: AIR 1977 SC 673 it was observed that: "These two witnesses had stated that spear injuries caused to Satnam Singh and Gurnam Singh by the four other accused, but the medical evidence revealed that there were no such injuries Now, if the evidence of these two witnesses was disbelieved by both the lower Courts in regard to participation by the four other accused in the incident, it is difficult to see how it could be accepted so far as the role assigned to the appellant is concerned " In the FIR it has been stated that the accused had a Gandasi with him and he struck a blow with Gandasi on the head of Sirajuddin. In the statements given before the police also it has been stated that accused Jabhar struck a blow with Gandasi. It is not in dispute that there are only three injuries found on the body of Sirajudding, which according to the medical report, were caused by blunt object. In the statements given before the police also it has been stated that accused Jabhar struck a blow with Gandasi. It is not in dispute that there are only three injuries found on the body of Sirajudding, which according to the medical report, were caused by blunt object. During the trial an improvement has been made in the statements of PW 4 Usman and PW 1 Jafar Mohammed that reverse side of the Gandasi was used for inflicting injury on the head of Sirajuddin.This is certainly an improvement made by the prosecution at the stage of the trial and does not inspire such confidence Even during the trial PW4 Usman has clearly stated that there was a lathi in the hand of Jabbar which contained a sharp edged iron piece its at end which used to be called as Gandasi. " blesa ls tCckj ds gkFk esa ykBh Fkh ftl ij yksgs dh iy yxk gqvk Fkk ftls xaMklh cksyrs gSA ". The lathi alleged to have been recovered at the instance of accused Jabhar does not contain such sharp edged piece of iron and in an ordinary lathi having some wires rounded on its edge. Thus, such lathi recovered at the instance of the accused cannot be the weapon which is stated by Usman as having been used by the accused Jabbar for striking a blow on the head of Sirajuddin. According to Usman, all the other accused gave blows on the feet, hands, waist, and other parts of Sirajuddin. Sirajuddin thereafter fell down. Thereafter Jafar Mohammed came on the spot and the accused persons gave a threatening to Jafar Mohammed which made him to flee. After sometime Kamru also came there and he told the accused persons not to give further beating as enough beating as already been given. According to Jafar Mohammed he had seen the incident from a distance of 40 and he never went on the scene of occurrence but had run away after witnessing the beating given to Sirajudding from a distance. Kamruddin has also not supported the statement of Usman and as such there are serious exaggeration and contradictions in the statement of U man. According to U,man all the accused persons went on inflicting injuries on Sirajuddin for one hour. Kamruddin has also not supported the statement of Usman and as such there are serious exaggeration and contradictions in the statement of U man. According to U,man all the accused persons went on inflicting injuries on Sirajuddin for one hour. He has further stated that during all this period all the accused persons went on inflicting injuries on Sirajuddin and he got such injuries on his head, sides, thighs and hips Admittedly according to the injury report there is only one grievous injury on the head and the other two injuries are one bruise on middle left leg back and abrasion on lower ⅓ left chest back. Thus, the above statement of Usman that all the accused persons inflicted injuries on Sirajuddin for one hour on thighs and hips is totally falsified by the injury report The conduct of Usman that he went to see Sirajuddin in the hospital after one or two days and the fact that he did not narrate the incident to any of the reflations immediately after the occurrence and did not go to the hospital immediately also goes to show an abnormal conduct on his part. There is another inconsistency in the statement of Usman and Jafar Mohammed. According to Usman he had gone to the police at about 4 5 pm. on the date of incident. Kamru also accompanied him Police had started taking their statements and thereafter Jafar Mohammed bad come there. On the other hand, according to Jafar Mohammed he had gone to the police station to lodge the report in the morning at 11 a.m and Kamruddin and Usman had accompanied him. This raises a doubt whether the FIR was lodged by Jafar Mohammed in the morning at 11 a.m. or at 4 or 5 P.m. as stand by Usman. Learned trial Court has disbelieved the statement of Usman PW 4 in this regard by observing that he had gone to the police station at 4 or 5 p.m. does not seem to be correct and his other part of the statement that the police had recorded his statement and that of Kamruddin appears to be correct. The Court further observed that it cannot be believed that Jafar Mohammed had also lodged the first information report Ex. PI at the time as stated by Usman. The Court further observed that it cannot be believed that Jafar Mohammed had also lodged the first information report Ex. PI at the time as stated by Usman. In our opinion, the learned trial Court was not correct in ignoring this distinction in the statement of Usman when he has categorically stated that he had gone to the police station at 4 or 5 p.m. accompanied with Kamru and Jafar Mohammed had reached thereafter. 7. Though it has come in the prosecution evidence that blood bad oozed out from the body of Sirajuddin and had spread on the spot but no such blood has been recovered from the spot. Learned trial Court in this regard while considering the statement of Durga Shankar PW 9 ASI. Police Station Kunadhi observed that Durga Shanker had reached on the spot after 7 hours of the lodging of the report and had prepared the site plan Ex. P. 11 after 12 hours of the incident. The incident bad taken place near the bank of river Chambal and people as well as cattle used to go on the way to river Chambal and in these circumstances according to the learned trial Court it was not possible that the spots of blood would have remained in fact for 12 hours. In our opinion, this inference of the trial Court is also not correct as no evidence has been led on record to show that people and cattle had gone over the place where the blood was lying. There is no explanation from the side of the investigating officer that the lathi in question recovered at the instance of the accused Jabbar was set t for chemical examination or to the Serologist in order to see that it was positive for human blood. This circumstance also creates a doubt as to the place of occurrence. It was observed in Bir Singh v. State of Uttar Pradesh, AIR 1978 SC 59 as follows: "Another important argument advanced by counsel for the appellants is that there is absolutely no evidence to show that there was any blood at the place where PW. 2 fell down. It was contended that according to the Doctors version having regard to the injury, blood must have been oozing out. If the blood was there then the Investigating Officer should not have failed to notice the same. 2 fell down. It was contended that according to the Doctors version having regard to the injury, blood must have been oozing out. If the blood was there then the Investigating Officer should not have failed to notice the same. The fact that blood at that place was not indicated in the sketch map clearly shows that PW. 2 did not receive injuries at that place. This is undoubtedly an important aspect which merits serious consideration." 8. Thus, in our opinion, there are serious infirmities and exaggerations in the prosecution case. In the facts and circumstances of this case no implicit reliance can be placed on the solitary statement of PW 4 Usman. The prosecution, in our opinion, has thus failed to prove that the fatal injury on the deceased Sirajudding was inflicted by the accused appellant Jabbar. 9. In the result, we allow this appeal, set aside the conviction and sentence of accused Jabbar, and he is acquitted of the charge under Section 302 IPC. The accused-appellant Jabbar shall be released forthwith if he is not required to be detained in any other case.Appeal allowed. *******