S. K. SETH, J. ( 1 ) THE Additional Sessions Judge, Damoh vide his judgment dated 24-9-1980 passed in Sessions Trial No. 63 of 1980 convicted the six accused namely Brijlal, Nale alias Lalsingh, Puran Singh, Mastu alias Mastram, Kisum Singh and Kalua under section 302/149 of the Indian Penal Code and sentenced them to imprisonment for life. In addition accused Nale alias Lalsingh and accused Mastu alias Mastram were convicted by him under section 147 and sentenced to rigorous imprisonment for one year and accused Brijlal, Puran Singh and Kalua were convicted under section 147 and sentenced to rigorous imprisonment for six months. It was ordered that the sentences awarded to the accused would run concurrently. This appeal by the six accused is directed against their above said convictions and sentences. ( 2 ) THE incident in question took place in one of the lanes of village Deori in Damoh district on the night of 7-4-1980. There were admittedly two parties in the village and the relations between them were greatly strained. One party was headed by P. W. 7 Bhagwan Singh who was Sarpanch of the village. Accused Nale alias Lalsingh, Puran Singh, Mastu alias Mastram and Kisum Singh were sons of accused Brijlal. Accused Kalua was their servant. It appeared that deceased Tabbu Singh and his brother including P. W. 2 Nanhebhai and Pancham Singh belonged to the party of, Bhagwan Singh. There had been previous incidents in which there were altercations and exchange of hot words between the accused party and the deceased and his brothers. ( 3 ) IT was clear from the evidence produced in the case that the houses of deceased Tabbu Singh, his brother P. W. 2 Nanhebhai, P. W. 1 Shivraj Singh and accused Brijlal were situated at 2 small distance from one another in the same lane. It was also clear that the assault on deceased Tabbu Singh was made at the mouth of sub-lane that merged into the above said lane after going past the side of house of P. W. 1 Shivraj Singh. In the above connection, it was useful to have a glance at Ex. P/2 map prepared by Sub Inspector Dixit (P. W. 8) during the course of investigation. In the above connection, it was useful to have a glance at Ex. P/2 map prepared by Sub Inspector Dixit (P. W. 8) during the course of investigation. ( 4 ) THE prosecution examined P. W. 1 Shivraj Singh, P. W. 2 Nanhebhai, P. W. 3 Sundar Singh and P. W. 4 Bhujbal Singh as the alleged eye witness of the incident. The only point arising for consideration in the appeal is whether the identity of the six accused as the persons responsible for making the assault in question at Tabbu Singh and killing him was established beyond reasonable doubt from the evidence of the above said witnesses. ( 5 ) IT was P. W. 2 Nanhebhai who lodged first information report Ex. P/1 at police station Tejgarh at about 7. 30 a. m. on the next day i. e. 8-4-1980. The police station was situated at a distance of eleven miles from the village. As already stated above, this witness was a brother of the deceased. The Additional Sessions Judge, in para twenty-three of his judgment, has given cogent reasons as to why it was not safe to rely on the version of the incident given by this witness. ( 6 ) ACCORDING to P. W. 2 Nanhebhai, it was after he had received information in his house from P. W. 1 Shivraj Singh about accused Mastu and others having assaulted his brother with Katarna that he came out from the house and saw the six accused dragging Tabbu Singh towards the sub-lane in the light of a torch which he had been carrying. There was no mention about his having seen any dragging in first information report Ex. P/i. The medical evidence produced in the case also ruled out any dragging. The attempt on the part of this witness to make improvement in his earlier version relating to that very small part of the incident which was stated to have been seen by him was certainly no small matter. ( 7 ) IN fact, there was another good reason for playing no reliance on the evidence of P. W. 2 Nanhebhai. The incident in question must have been over within a couple of minutes. ( 7 ) IN fact, there was another good reason for playing no reliance on the evidence of P. W. 2 Nanhebhai. The incident in question must have been over within a couple of minutes. It appeared highly improbable that during all this period in which P. W. 1 Shivraj Singh came to the house of this witness, informed him about the incident, and thereafter this witness came out of his house and reached the place of occurrence, the assailants stayed on at the said place so as to make it convenient for this witness to see them in the torch light. It was not unreasonable to assume that the dragging part of this story was invented by this witness for the first time in his evidence in the Court with a view to create a time-gap so as to make his claim of being an eye witness to the incident believable. In all probability, this witness did not see any part of the incident. In the circumstances, it is needless to say that the version of the incident given by him in the first information report was of little value in judging the case of the prosecution against the six accused. ( 8 ) THAT brings us to the consideration of the evidence of the remaining three persons namely P. W. 1 Sundar Singh and P. W. 4 Bhujhal Singh who also claimed, to be the eye witnesses of the incident. Their evidence is required to be considered in the background of the defence suggestion that the incident happened much after wards and that it was on discovering the dead body of Tabbu Singh lying on the mouth of the sub-lane that the story about this witness having witnessed the incident was cooked up with a view to implicate them falsely in the matter. ( 9 ) IT is convenient to begin the above-said consideration with the evidence of P. W. 3 Sundar Singh. According to this witness, on the date of incident after sunset, deceased Tabbu had called him to his house. When this witness reached the house of Tabbu Singh, the latter asked him to wait for some time so that he might go to the Sahus shop and bring oil from there. When Tabbu Singh started for the Sahus shop from his house, this witness walked behind him in the direction of his house. When this witness reached the house of Tabbu Singh, the latter asked him to wait for some time so that he might go to the Sahus shop and bring oil from there. When Tabbu Singh started for the Sahus shop from his house, this witness walked behind him in the direction of his house. After some distance, he sat down for urinating and as such the gap between him and the deceased increased. It was while he was urinating that he heard the cry of Tabbu Singh, raising an alarm, and when he rushed in that direction and switched on his torch, he saw accused Mastu and Nale attacking the deceased with Katarnas and the remaining accused namely Kisum Singh, Kalua, Puran and Brijlal holding the deceased at that place. On seeing this, this witness went to the house of the deceased and told his father as to what he had seen. Thereafter, both he and the father of the deceased went to the place of occurrence. A lot of people had gathered around the body of the deceased by that time. ( 10 ) NOW, in his cross-examination, it was stated by this witness that at the time he had reached the house of Tabbu Singh, the latter was taking his food and that as soon as he finished taking food be started from his house for the Sahus shop as stated above. It was also stated by this witness that the incident took place at a distance of about 50. 70 yards from the house of the deceased. He was confronted with his case diary statement Ex. D/4 wherein he had stated that it was some time after the deceased had left for the Sahus shop that he had commenced his journey towards his house. He denied having made any such statement to the police and reiterated that he and the deceased had left the house together. If the earlier statement of this witness was believed, he had not left the house with the deceased and had done so only a little afterwards. In that case, it was clear that he was making improvement in his evidence in the Court as regards his having left the house at the same time as the deceased only with a view to make his presence at the place of occurrence at the relevant time more probable. In that case, it was clear that he was making improvement in his evidence in the Court as regards his having left the house at the same time as the deceased only with a view to make his presence at the place of occurrence at the relevant time more probable. ( 11 ) THERE was another significant aspect about the evidence of P. W. 3 Sundar Singh which made the presence of the said witness at the place of occurrence at the relevant time doubtful. The medical evidence i. e. post-mortem report Ex. P/8 proved by Dr. J. P. Mishra (P. W. 5) showed that the stomach and the small intestines contained partially digested food. It cannot be denied that the time of death can be ascertained to some extent from the state of the stomach and the degree of digestion of the stomach contents, and from the contents of the intestines. Though, in the present case, it was difficult to calculate exactly how much time must have been taken by the food to reach the stage of partial digestion in the stomach and in the small intestines of the deceased, it appears improbable that had the deceased left the house immediately after taking his meal in the manner stated by P. W. 3 Sundar Singh and had the incident taken place within a couple of minutes of his leaving the house, the stage of digestion of the food taken by the deceased would be such as it was found to be. ( 12 ) AS far as P. W. 1 Shivraj Singh is concerned, the substance of what he stated in his evidence in the Court was as follows: At about 8 p. m. when he was untying the rope from a water tank kept on a bullock cart in front of his house, he heard a sound of Khadbadahat coming from the direction of the Nimhais house. On this, he walked few paces in that direction and switched on the torch which he was carrying. In the torch light, he saw the four accused namely Brijlal, Puran Singh, Nale alias Lalsingh and Mastu alias Mastram. Accused Mastu and Nale were carrying Katarnas and the remaining accused were standing there. Seeing this, he went to the house of Nanhai and informed P. W. 2 Nanhebhai who was sitting there about what he had seen. In the torch light, he saw the four accused namely Brijlal, Puran Singh, Nale alias Lalsingh and Mastu alias Mastram. Accused Mastu and Nale were carrying Katarnas and the remaining accused were standing there. Seeing this, he went to the house of Nanhai and informed P. W. 2 Nanhebhai who was sitting there about what he had seen. It is interesting that it was in answer to a question put by the Court that he recalled that he had seen the accused beating Tabbu Singh with Katarnas. According to him, after accompanying P. W. 2 Nanhebhai to the place of occurrence he returned to his house. It was only after some time that on hearing a commotion he came out of his house for the second time and on reaching the place of occurrence saw about 20- 25 persons gathered around the body of Tabbu Singh. ( 13 ) THE question is as to why this witness was hesitant in speaking about his having seen the accused beating Tabbu Singh with Katarnas in the first instance? It is that he was aware of the difficulty that if he spoke about his having seen the accused beating Tabbu Singh, very little time would be left for P. W. 2 Nanhebhai for reaching the place of occurrence on being informed by him and witnessing the incident. The evidence of this witness suffered from another serious infirmity also. The bullock cart about which he spoke in his examination-in-chief was said to be standing at the place indicated by figure of 2' in the map (Ex. P/2 ). Perhaps, realizing that it was impossible to see as to what was happening at the mouth of the sub-lane where the incident took place from the place where he was said to be standing, this witness, in his cross-examination, committed a complete volte-face on the said point and came forward with an altogether new story about his having seen the entire incident from the Parchhi of his house itself and having never gone out of his house to untie the rope from the water tank kept on the bullock cart as, stated by him earlier. ( 14 ) THE remaining witness, i. e. P. W. 4 Bhujlal Singh was a chance witness. It was not possible to place any worthwhile reliance on the testimony of the said witness. ( 14 ) THE remaining witness, i. e. P. W. 4 Bhujlal Singh was a chance witness. It was not possible to place any worthwhile reliance on the testimony of the said witness. He too had gone for making a search for his calf on the relevant night. It was when he was returning to the village after making the search that he heard the sound of Khadbadahat coming from the direction of the Nannais house. On this, he too flashed the torch light in that direction. He saw that there was a marpit going on at the mouth of the sub-lane. Accused Mastu and Nale were assaulting Tabbu Singh with Katarnas. The rest of the accused has surrounded Tabbu Singh. On seeing this, this witness too returned to his house quietly. In his cross-examination, this witness stated that his calf had not been lost it was merely with a view to find out whether it was loitering in the vicinity and was safe that he had gone in search of it. He also stated that he did not state anything about the incident to anyone. And yet, the Sub Inspector called him to the police station on the next day and recorded his statement. It was admitted by him that he belonged to the Khandan of P. W. 7 Bhagwan Singh. ( 15 ) APART from the criticism of the evidence of the three witnesses mentioned above, their evidence was suspect due to certain other reasons also. It was strange that each of the said witnesses returned to his house quietly after seeing the incident and did not hot her to raise any hue and cry in the matter. It was again very strange that though each one of them was said to have flashed the torch light in toe direction of the place of occurrence, none of them saw the others nor saw any torch light. There appears to be substance in the defence suggestion that the incident happened much afterwards and it was on discovering the dead body of Tabbu Singh lying on the mouth of the sub-lane that the story about these witnesses having witnessed the incident was cooked up with a view to implicate the accused falsely in the matter. There appears to be substance in the defence suggestion that the incident happened much afterwards and it was on discovering the dead body of Tabbu Singh lying on the mouth of the sub-lane that the story about these witnesses having witnessed the incident was cooked up with a view to implicate the accused falsely in the matter. ( 16 ) IT is noteworthy that there was considerable gap of time between the incident and the lodging of the first information report and the same was quite sufficient for the party rivalry to raise its head and lead to a false claim being made to the effect that there were certain eye witnesses of the incident. In fact, as already stated above, the Additional Sessions Judge himself held that the first information report lodged in the case was of, little value in Judging the case of the prosecution against the accused. ( 17 ) IN the above connection, it was also not without significance that the leader of the opposite party P. W. 7 Bhagwan Singh had started taking keen interest in the investigation of that case from the very beginning. He was not only one of the witnesses of the inquest, but also a witness of the memoranda which were said to have led to the discovery of an axe and a Katarna and certain clothes at the instance of accused Mastu and Nale on 10-4-1980. It was too much of a coincidence that the other witnesses of the abovesaid memoranda happened to be P. W. 6 Chittar Singh who was real brother of Bhagwan Singh. This Chittar Singh went to the length of setting up an oral dying declaration said to have been made by Tabbu Singh, which was rightly rejected by the Additional Sessions Judge. It is noteworthy that the presence of human blood could not be confirmed on the axe and the Katarna. It was difficult to connect the two accused necessarily with the offence of murder alleged against them merely on the basis of a few stains of human blood found on some of their clothes seized from them after about two and half days of the incident. It was difficult to connect the two accused necessarily with the offence of murder alleged against them merely on the basis of a few stains of human blood found on some of their clothes seized from them after about two and half days of the incident. ( 18 ) FOR the reasons stated above, in our opinion, as the prosecution failed to establish its case against the six accused beyond a reasonable doubt, they were entitled to benefit of doubt and deserved to be acquitted. ( 19 ) THE appeal is allowed. The convictions and sentences passed against the six accused by the trial Court are set aside and they are acquitted. They shall be set at liberty forthwith unless required to be detained in connection with any other matter. Appeal allowed. .