K. N. SETH, J. ( 1 ) - The accused appellants Nand Ram and nine others have been convicted under section 302/149,. P. C. and sentenced to undergo imprisonment for life and six months R. I. , under section 147 I. P. C. The accused, Nand Ram, Ram Lal, Nanhey, Kanti, and Shyam Lal have been further convicted under section 148 I. P. C. and sentenced to under go R. I. for a period of one year. They have felt aggrieved and have come up in appeal. ( 2 ) THE facts which have given rise to this appeal are briefly put as below: - Jwala Prasad (P. W. 2) is an old a resident of village Bhejipura Piparsana but is settled in village Thiria, Police Station Deorailia, District Bareilly for the last nine years and is carrying on cultivation there. He has constructed a Pucca house. The accused were inimical to Jwala Prasad and his family on account of the fact that the latter had purchased some land belonging to the relations of the accused and were carrying on good cultivation. The accused are residents of village Thiria. The accused Bhajan Lal, Nand Lal, Kanti and Nanhey are brothers, Badri was prosecuted for having committed theft on the complaint of the accused. Jwala was a surety of Lamboo alias Deo Ram. The accused felt aggrieved on that account also. Some litigation between the brother-in-law of Jwala and Nand Ram accused is pending and Jwala helped his brother-in-law is that litigation. The accused tried to cause obstruction in the marriage of Smt. Bhuri (P. W. 4) a daughter of Jawala but inspite of their obstruction she has been married. This has also caused displeasure to the accused. A quarrel took place between the deceased Salik Ram and the accused Kanta, Ram Lal and Nanhey when the latter abused Bhuri (P. W. 4 ). Another quarrel took place when the accused Ram Lal and Shyam Lal carried the tractor through the (pairy) of Jwala Pd. Jwala Pd. and his family members were, therefore, not on talking terms with the accused. Jwala (P. W. 2) was lying beneath his Chhappar on the mid-night between 18th and 19th February, 1980. Kesari Lal and Hira Lal were sleeping nearby. Jwala Pd. and his family members were, therefore, not on talking terms with the accused. Jwala (P. W. 2) was lying beneath his Chhappar on the mid-night between 18th and 19th February, 1980. Kesari Lal and Hira Lal were sleeping nearby. Salik Ram was lying in a room situated towards the south of the house whereas Bhuri (P. W. 4) was lying in the northern room nearby. Ganeshi the wife of Jwala was also in the northern room. A country lamp was lit in the room of Salik Ram and a lantern was fit in the Khaprail- Jwala rushed inside the house along with Kesri Lal and Hira Lal on hearing the cry of Salik Ram. They saw the accused assaulting Salik Ram inside the room. Nand Ram was armed with a Tabal. Ram Lal was armed with a spear. Kanti and Nanhey were armed with Sujas. Shaym Lal accused was armed with his licensed gun. Babu Ram and Nathoo were armed with lathis. Salik Ram came out in the Khaprail but he again ran back. The accused chased him and killed him inside the room. There was sufficient light there Jwala and others raised on alarm. Shyam Lal threatened to kill them with his gun and fired towards the east without causing any injury to anyone. The accused made good their escape. They were nine in number and were recognised in the light of lantern and country lamp. Jawala Pd. dictated the report Exh. Ka. 4 to Nathoo Lal and carried it to the Police Station on next morning at 7 A. M. Chik of first information report Exh. Ka. 6 was prepared and the crime was registered in the General Diary. Sri Ganga Ram (P. W. 5) the then station officer, Police station Deorania was present when the first information report was lodged. He investigates the case and reached the scene of occurrence and prepared the site plan Exh. Ka. 8. He found the dead body inside the house and he kept it in a sealed cover after preparing Panchayatnama and other connected papers. ( 3 ) DR. K. S. Tiwari (P. W. 7) conducted the Postmortem examination on the dead body of Salik Ram and found the following ante mortem injuries on the dead body: 1. Lacerated would 4 cm. x I cm. bone deep in the middle obliquely placed just if above prominence of occiput. 2. ( 3 ) DR. K. S. Tiwari (P. W. 7) conducted the Postmortem examination on the dead body of Salik Ram and found the following ante mortem injuries on the dead body: 1. Lacerated would 4 cm. x I cm. bone deep in the middle obliquely placed just if above prominence of occiput. 2. Lacerated would 3 cm. x 1 cm. x scalp deep on the scalp left side just above left ear obliquely. 3. Abrasion I cm. x 1 cm. on right side forehead 1 cm. above end of eye brow. 4. Abrasion 1 cm. x 0. 5 cm. on right check 1 cm. below outer angle the eye. 5. Abrasion 2 cm. x 0. 5 cm. on left check 1 cm. outer to other angle of left eye. 6. Abrasion 0. 5 cm x 0. 5 cm. on lower lip right side 1. 5 cm. from mid line. ( 4 ) INCISED wound 2. 3 cm. x 0. 5 cm. x chest cavity deep on the front of chest left side 05 cm. medial to left simple horizontally placed, directed horizontally backwards and medialy Margins sharp clotted blood present in the wound. In the opinion of Medical Expert death was caused due to shock and haemorrhage. The investigating officer submitted charge-sheet against the accused on 1st of April 1980. All the accused pleaded not guilty. The prosecution examined Jwala (P. W. 2) and Bhuri (P. W. 4) as witnesses of facts. Dr. K. S. Tiwari (P. W. 7) is the Medical Expert who has conducted autopsy of the dead body of the deceased Salik Ram. The learned Judge on a consideration of entire evidence arrived at the conclusion that the charges under section 302/149, 147 and 148 of I. P. C. are proved. ( 5 ) DR. Tiwari (P. W. 7) has opined that injury No. 7 was sufficient in the ordinary course of nature to cause death and this injury could have been caused by a sharp edged and pointed weapon. He has further opined that it could have been caused by the upper portion of a blade of Tabal in case it was pointed and in case the pointed portion of the Tabal hit the deceased. He has further opined that the internal injury beneath the aforesaid injury No. 7 could have been caused by a spear. Injury Nos. He has further opined that it could have been caused by the upper portion of a blade of Tabal in case it was pointed and in case the pointed portion of the Tabal hit the deceased. He has further opined that the internal injury beneath the aforesaid injury No. 7 could have been caused by a spear. Injury Nos. 3 to 6 are abrasions and could have been caused by friction. The ocular account of the occurrence as given by the witnesses of facts on the other hand says that one persons armed with Tabal, two armed with sujas and one armed with a spear have assaulted the deceased and that too firstly inside the room where he was sleeping, secondly outside the room where he came out and thirdly again inside the room when he again ran back inside the room. The witnesses of facts further say that four accused were armed with lath is and they have also assaulted the deceased. The ocular account of the occurrence as given by the witnesses of fact is wholly inconsistent with the medical evidence so far as the number of assailants and weapons used is concerned. It is impossible to believe that their accused armed with pointed weapons to the sujas and spears could not cause a single injury by their weapons. There is nothing on the record to show that the upper portion of Tabal which Nand Ram possessed was pointed and that it was the pointed portion thereof which hit the deceased. In the result Medical Expert has not found any injury oil the dead body which could have been caused by a Tabal his common knowledge that Tabal is a sharp edged weapon and is ordinarily used as such. The eye witnesses do not say that the Tabal was being used by Nand Ram not as a sharp edged weapon but as a pointed weapon. As we have mentioned above medical expert has found only two injuries which could have been caused by lathis. The prosecution story on the other hand is that four accused were armed with lath is and they have actually used their lathis in assaulting the deceased. The prosecution story is thus highly improbable and does not appeal to reason. Moreover as discussed above it is wholly inconsistent with the medical evidence. The prosecution story on the other hand is that four accused were armed with lath is and they have actually used their lathis in assaulting the deceased. The prosecution story is thus highly improbable and does not appeal to reason. Moreover as discussed above it is wholly inconsistent with the medical evidence. The only possible conclusion which can be drawn is that the witnesses of facts have not actually witnessed the occurrence and have played on their imagination by giving a description of the occurrence. ( 6 ) JWALA Prasad (P. W. 2) in his cross-examination says that he dictated the report at his residence at about 10 A. M. and thereafter covered the distance upto the Police Station (five miles) on foot. He further admits that it took him about two and half hours to cover this distance. Thus according to his own admission he reached the police station at about 12. 30 P. M. on 19th of February, 1980 and then submitted this written report to the Head Constable who passed it on to the Subinspector. He further says that the Sub-Inspector came on the scene of the occurrence by a cycle and he himself returned on foot. He again came back to the Police Station from the scene of occurrence along with the investigating officer. The dead body reached there at about 4 P. M. He says that the Investigating Officer did not interrogate him. No paper was given to him either by the Investigating Officer or by the Head Constable which shows that copy of the chik first information report was not given to him. The chik first information report Exh. Ka. 6 on the other hand shows that the first information report has been lodged at 7 a. m. on 19. 2. 80. The evidence of Jwala Prasad shows that first information report has not actually been lodged at 7 A. M. on 19. 2. 80. On the other hand it has been lodge of sometime after 12. 30 P. M. The first information report and other Police papers, therefore, have been ante-timed. The first information report does not appear to be genuine. Under these Circumstances the possibility of implicating innocent persons in the crime cannot be over-ruled. 2. 80. On the other hand it has been lodge of sometime after 12. 30 P. M. The first information report and other Police papers, therefore, have been ante-timed. The first information report does not appear to be genuine. Under these Circumstances the possibility of implicating innocent persons in the crime cannot be over-ruled. ( 7 ) SHYAM Lal accused according to the prosecution witnesses was armed with a gun but he did not make use thereof for committing the murder of Salik Ram deceased. In all probability had the common object of the unlawful assembly being to commit the murder of Salik Ram then Shyam Lal would certainly have made use of his most effective weapon for the prosecution of the common object of the assembly. The fact that Shyam Lal did not make use of his gun is another circumstance which makes the prosecution story improbable and testimony of the prosecution witnesses doubtful. ( 8 ) BOTH eye witnesses have deposed that a country lamp was burning inside the room where Salik Ram was sleeping and a lantern was burning in the khaprail but they have not given any reasons to why two lamps were burning at that hour of the night in these days of kerosene scarcity as well as high prices. The prosecution story that two lamps were burning inside the deceaseds house is again improbable. It is further belied by the prosecution version that the accused also possessed torches and flashed the same. According to Bhuri (P. W. 4) the assailants possessed atleast three or four torches and were using the same. ( 9 ) JWALA Prasad says that accused were inimical to him because he belonged to another village and was carrying on good cultivation in this village for about last nine years. In our opinion this cannot be a motive for committing the murder of Jwala Prasads son Salik Ram. Jwala Prasad further says that he refused to appear as a witness in a case between the accused and Radri Jatav. Again that cannot be a motive for committing the murder of his son. Jwala Prasad further says that he was surety of one Lumboo alias Jatav in a theft case in which the accused were complainant. He says that this caused the displeasure of the accused. Again that cannot be a motive for committing the murder of his son. Jwala Prasad further says that he was surety of one Lumboo alias Jatav in a theft case in which the accused were complainant. He says that this caused the displeasure of the accused. Even if that be so we are unable to believe that this could be a motive for committing the murder of Salik Ram in the manner in which it is alleged to have been committed. He further says that the accused caused obstruction in the marriage of his daughter Bhuri by sending some letters to the prospective in laws of Bhuri but in spite of all that she has been married. This conduct of the accused must have caused annoyance and grievance to Jwata Prasad and his family but by no stretch of imagination it can provide a motive for the accused to commit Salik Rams murder. In the result the prosecution has made futile attempts to prove that the accused had motive for commission of Salik Rams murder. The incidents deposed by Jwala Prasad on the other hand show that he and his family members could have reason to have felt annoyed and aggrieved with the accused and under the prevailing circumstances it is most unsafe to place reliance on the testimony of Jwala Prasad (P. W. 2) and his daughter Smt. Bhuri (P. W. 4 ). The prosecution has not produced any resident of the village to support the prosecution story against the accused. In all probability had the occurrence taken place as deposed by Jwala Prasad then a few residents of the village would have rushed on hearing the alarm raised by the victim and must have seen the assailants at least while running away from the place of occurrence. No witness even has been produced to prove that Jwala Prasad named the accused just after the occurrence when the villagers assembled there. The prosecution could produce such evidence to corroborate Jwala Prasad and Bhuri. ( 10 ) HAVING considered the entire evidence on the record we have no hesitation in arriving at the conclusion that the testimony of Jwala Prasad (P. W. 2) and Bhuri (P. W. 4) is extremely doubtful. The learned Judge has grievously erred in placing reliance upon their testimony for convicting the accused. ( 10 ) HAVING considered the entire evidence on the record we have no hesitation in arriving at the conclusion that the testimony of Jwala Prasad (P. W. 2) and Bhuri (P. W. 4) is extremely doubtful. The learned Judge has grievously erred in placing reliance upon their testimony for convicting the accused. The prosecution story is full of improbabilities and is also inconsistent with the medical evidence. The first information report and other police papers have been ante-timed and their genuineness is doubtful. ( 11 ) IN the result the charges are not proved beyond doubt against the appellants. They have been wrongly convicted and sentenced for the same. The appeal shall, therefore, be allowed. ( 12 ) THE appeal is allowed. The conviction and sentence passed against appellants Nand Ram and eight others under sections 302/149, 148 and 147 I. P. C. is set aside. They are acquitted of all the charges against them. They are on bail. Their bail bonds stand discharged. They need not surrender. Appeal allowed. .