JUDGMENT I.P. Singh, J. - Munshi and Amer Singh convict-appellants have preferred this appeal against the judgment and order passed by Shri P.K. Jain, VII Addl. Sessions Judge, Farrukhabad in S.T. No. 429 of 1977 convicting and sentencing each one of the appellants under Sections 325/34, I.P.C. to 1 years' on each of the two counts for causing grievous hurts to Santu and Prakash. The sentences were to run concurrently. The prosecution case is that on 28.12.76 at about 6 p.m. Santu (deceased), his son the complainant (P.W. 1) Radhey Shyam and the latter's cousin Prakash (P.W. 3) were sitting on their Chabutra when Ravindra accused passed over it from south to north, Santu deceased objected to it. Thereupon Ravindra, Munshi, Banna and Amar Singh the four accused carrying lathis assaulted them. Santu and Prakash received hurts. Santu was hit on his head and he fell unconscious. Prakash P.W. 3 suffered a fracture of his right ulna. Complainant Radhey Shyam (P.W. 1) however escaped unhurt. The incident was seen by Ved Ram (P.W. 4) and Ram Swarup. Santu in unconscious condition and Prakash (P.W. 3) injured were taken to P.S. Nawabganj where Radhey Shyam complainant (P.W. 1) lodged an oral F.I.R. the same night at 21.50.- This report Ex. Ka. 1 was taken down under Section 323/506 I.P.C. Dr. Sabir Husain (P.W. 6) examined Santu and Prakash on 29.12.76 between 10.30 a.m. and 10.45 a.m. Santu had suffered a lacerated wound 2" x " X bone deep on left side of head two inches above outer ? of left eye-brow with depressed fracture of frontal bone with blood clot present. He also found two abrasions " x " each 1" apart and 1" inward from injury No. 1. Prakash had suffered one contusion 1" x 1" on ulnar4 aspect lower ? of right forearm with fracture of ulna underneath. The injuries involving fractures were grievous while the abrasions were simple. All these injuries were caused by blunt weapon like lathi. At the time of examination these injuries were about a day old. The doctor had stated that there could be a difference of four hours in the duration of the injuries either way. He further stated that the injuries of both the injured could be of about 6 p.m. of 28.12.84. Santu injured died in the hospital on 1.1.77 at 11.30 p.m. Dr. The doctor had stated that there could be a difference of four hours in the duration of the injuries either way. He further stated that the injuries of both the injured could be of about 6 p.m. of 28.12.84. Santu injured died in the hospital on 1.1.77 at 11.30 p.m. Dr. S.C. Govil (P.W. 2) conducted the post mortem examination of the deceased on 2.1.77 at 4.30 p.m. His external examination revealed the same ante mortem injuries as were noted by Dr. Sabir Husain. The internal examination revealed the fracture of left parietal bone. In the opinion of the doctor the death was due to syncope and coma due to said head injury. The doctor has opined that the said injury was sufficient in the ordinary course of nature to.cause death. Ravindra accused had taken the plea that he was carrying his own 'Pali' (sugar-cane leaves). The wife of Meghnath enquired from him as to from where he had brought that Pati. He told that it was his own Pati. Neverthless she started abusing him. Meghnath and others arrived there. Meghnath beat him and his mother with kicks and fists. He raised alarm. Many villagers arrived there and saved him. He ran away but the women folk of Meghnath started hurling bricks. His mother had lodged a report of this occurrence at the police station. This report has been proved as Ex. Ka. 2. It was lodged at 1.15 p.m. on 29.12.76 though the incident is said to have occurred at about 6 p.m. on 28.12.76. In this way the said F.I.R. was lodged after about 19 hours of the alleged occurrence. According to it four persons had assaulted Smt. Ganga Devi with kicks and fists. Ravinder accused also claimed that he was assaulted by Meghnath with kicks and fists but none of the two were medically examined, and no oral evidence was led. The learned Sessions Judge, therefore, disbelieved the defence version of Ravinder. The other accused including Munshi and Amer Singh appellants had pleaded that they were falsely implicated in this case on account of enmity. They too did not lead any evidence in this regard. The prosecution in order to establish their case examined Radhey Shyam (P.W. 1) Prakash (injured) (P.W. 3) and Ved Ram (P.W. 4) as eye-witnesses of the occurrence. The other accused including Munshi and Amer Singh appellants had pleaded that they were falsely implicated in this case on account of enmity. They too did not lead any evidence in this regard. The prosecution in order to establish their case examined Radhey Shyam (P.W. 1) Prakash (injured) (P.W. 3) and Ved Ram (P.W. 4) as eye-witnesses of the occurrence. The learned Sessions Judge disbelieved Ved Ram (P.W. 4) observing that perhaps he was not on the spot and had not seen any thing. He, however, relied upon the evidence of injured Prakash (P.W. 3) and Radhey Shyam complainant (P.W. 1) and convicted the four accused including the two appellants under Section 325/34, I.P.C. on two counts for causing the grievous hurts to Santu and Prakash. Banna and Ravindra accused being 20 years of age were given the benefit of Section 4 of the U.P. Offenders Probation Act. However, Munshi appellant being 45 years of age and Amar Singh appellant being 29 years of age were not considered for the benefit of the Act and were convicted and sentenced as above. So they have preferred this appeal. The F.I.R. which was taken down under Section 323/506, I.P.C. mentioned that an old enmity existed between complainant Radhey Shyam (P.W. 1) and the accused persons. However, no details of the enmity were disclosed. It was in the examination in chief of Radhey (P.W. 1) that he stated that about 1 years' prior to the present occurrence Munshi appellant, his son Mahesh and Amar Singh accused had cut his Makka crop for which three separate cases were field by him, his brother Ram Nath and father Santu against them. However, the matter was compromised in the Panchayat. He further stated that the accused persons had taken it ill. However, two things stand out, first that the grievance of Radhey Shyam (P.W.1) his brother and his father Santu about the damage to their crop remained unsatisfied. The cases which were filed were dismissed for want of evidence as deposed by Prakash (P.W.3). Accordingly the ill will could stay with the complainant, his brother and father Santu and not with Munshi or Amar Singh appellants against whom these cases were filed. Secondly there were four accused in the sessions trial. There is nothing on the record to show how Ravinder, Munshi and Amar Singh accused are related. Bannu accused is the son of Munshi appellant. Secondly there were four accused in the sessions trial. There is nothing on the record to show how Ravinder, Munshi and Amar Singh accused are related. Bannu accused is the son of Munshi appellant. Secondly there is nothing to show how Ravinder had any concern with the result of the above litigation or how he was connected with other three accused. Thus the sweeping statement of Radhey Shyam P.W.10) that on account of the above litigation all the four accused had entertained ill will against him and his father Santu is not understandable. These facts would indicate that there was perhaps no motive on the part of the four accused to commit the present crime. However, the presence or absence of motive is not material where the prosecution relies upon the strength of direct evidence of the eye-witnesses. The matter would then depend upon the assessment of their evidence irrespective of the presence or absence of the motive. The F.I.R. does not mention the exact place of occurrence. It simply states that (P.W.1) had protested to the four accused not to pass over his place (Jagah). Thus this description remains vague in the sense that the place of occurrence can not be fixed. The 1.0. in the site plan dated 5.1.77, which he had prepared at the instance of the complainant and other witnesses, has shown the place of occurrence with letter A which falls on the Rasta running north-south and almost in front of the Chak road which joins it coming from west. The site plan further shows that towards west of the said north-south Rasta their exists house of Prakash (P.W.3) and towards south of it the house of Govind. In front of these two houses facing the said Rasta a small piece of land is shown by the 1.0. as "JAMIN GADARIYON KI." F.I.R. shows that Radhey Shyam (P.W.1) is Gadariya by caste. Radhey Shyam has stated that Prakash is his cousin so he too must be a Gadariya by caste. By the pedigree mentioned by Radhey Shyam in his statement. Govind happens to be the real uncle of Prakash (P.W.3). So he too is a Gadariya by caste. Evidently the site plan indicates that this piece of land formed the frontage of these two houses of Prakash and Govind. By the pedigree mentioned by Radhey Shyam in his statement. Govind happens to be the real uncle of Prakash (P.W.3). So he too is a Gadariya by caste. Evidently the site plan indicates that this piece of land formed the frontage of these two houses of Prakash and Govind. The said site plan also shows the house of Munshi and his son Banna accused and the house of Amer Singh accused falling across the Rasta in front of the above mentioned houses of Prakash and Govind. Radhey Shyam (P.W.1) has stated in his cross examination in pars 8 that his house falls to the east of the house of Amer Singh accused and that the three houses of Munshi, Amer Singh and his own adjoin each other. He further stated that Prakash (P.W.3) also lives in his house and that his chaupal lies towards west of his house. This would mean that the said Chaupal would lie in between his house and that of Amer Singh accused. He further stated that the Marpit in question took place in front of the Chaupal of his house. If it were so then the place of occurrence would be different from that shown by the 1.0. in the site plan by letter A. There could be another interpretation to the above statement of Radhey Shyam (P.W.1). He has stated that his house adjoins towards east of the house of Amer Singh and Munshi accused. If the houses adjoin each other then there could not be any place in between for the Chaupal of Radhey Shyam so as to be situated towards west of his house. Evidently then his Chaupal would be somewhere else which place would fall in the west of his house. He has stated that his said Chaupal fall towards the west of Rasta coming from Tal and that towards south of his Chaupal falls the Chaupal of Govind and that his Chaupal and that of Govind are one on the spot though in between there is a partition. He has further stated that towards north of his Chaupal lies the Panchayat land. A look at the site plan would show that there is only one Rasta coming from north to south and most probably it comes from the Tal. It appears that the place which the 1.0. He has further stated that towards north of his Chaupal lies the Panchayat land. A look at the site plan would show that there is only one Rasta coming from north to south and most probably it comes from the Tal. It appears that the place which the 1.0. has shown as houses of Prakash and Govind are the same which Radhey Shyam had described as Chaupal. If this be taken as Chaupal, then his statement that the Marpit took place in front of his Chaupal would bring the place of occurrence somewhere in the whole length of the said Chaupal. In pars 12 of his cross-examination Radhey Shyam (P.W.1) has stated that at the time of occurrence Santu deceased and Prakash (P.W.3) were sitting on the Chabutra at a place which lies towards the north of the partition (Bede) of Govind and it was there that the four accused had attacked them. Thus this indicates a different places of occurrence than that shown by the 1.0. in the site plan. As a matter of fact Radhey Shyam (P.W. 11) in the end of pars 11 of his cross-examination has affirmatively stated that the Marpit did not take place on that space of the Rasta which falls in front of the Chak road (which corresponds to place as shown in the site plan). The learned counsel for the appellants has, therefore rightly urged that the evidence of the prosecution does not succeed in fixing the exact place of occurrence. The further argument is that if the very place of occurrence becomes doubtful then the whole evidence of the prosecution case stands on shaky ground. In the F.I.R. it is mentioned that Radhey Shyam (P.W.1) had protested to all the four accused that they should not pass over his place. However, in his statement he has stated that his father Santu was sitting on the Chaupal when the four accused passed over the said Chabutra and tried to go from south to north over it. It was then that his father had protested and checked them from passing over the said Chabutra. This part certainly stands in contradiction to the assertion made in the F.I.R. that it was Radhey Shyam (P.W.1) who had checked the four accused. It was then that his father had protested and checked them from passing over the said Chabutra. This part certainly stands in contradiction to the assertion made in the F.I.R. that it was Radhey Shyam (P.W.1) who had checked the four accused. No doubt, Radhey Shyam (P.W.1) in pars 2 of his examination in chief has stated in conformity with the F.I.R. allegation that when the four accused were checked from passing over the said Chabutra they all bet him, his father Santu and cousin Prakash with lathis resulting in injuries to Santu and Prakash, however, in para 11 of his cross-examination he stated that at the time of Marpit Munshi and Banna accused had come from their house while Amer Singh accused had come from his own house. He stated that at that time only Ravinder accused carrying 'Pati. and arrived therefrom Chak road. He stated that when Ravinder passed over the Chabutra he alone was checked , and then Munshi. Banne and Amar Singh accused arrived there from their respective houses. He further stated that Ravinder accused had thrown the bundle of 'Pati' on the Rasta and then brought lathi from his own house. In this way the actual Marpit is said to have started only when all the four accused brought lathi from their houses. This part of the statement is certainly in contradiction to his own statement in examination-in-chief as well as to the version given in the F.I.R. According to that all the four accused were together passing over the Chabutra and were checked and immediately all the four started the attack with lathis. In this way Radhey Shyam (P.W.1) himself does not inspire confidence regarding the manner in which the whole incident happened. In this background the learned counsel for the appellant has rightly argued that perhaps he was not on the spot at that time. This approach also finds support from another argument of the learned counsel for the appellants that if he were present with the other two injured and four accused are said to have assaulted them with lathis there could be no reason why he should have escaped unhurt. This circumstances coupled with the inherent contradiction appearing in the statement of Radhey Shyam (P.W.1) leaves strong doubt that perhaps he was not on the spot and had not seen the occurrence. This circumstances coupled with the inherent contradiction appearing in the statement of Radhey Shyam (P.W.1) leaves strong doubt that perhaps he was not on the spot and had not seen the occurrence. It appears that since Santu was unconscious and Radhey Shyam (P.W.1) took on himself the role of the complainant he went to the extent of mentioning in the F.I.R. that it was he who had checked all the four accused from passing over his Jagah (which he did not specify and then happened to fumble during his examination regarding the actual place of occurrence. In these circumstances I do not place any reliance on Radhey Shyam (P.W.1). In the F.I.R. it is not mentioned as to whose lathi blow had hit Santu. During the course of evidence Radhey Shyam(P.W.1) as well as Prakash (P.W.3) stated that it was Munshi who gave the lathi blow on the head of Santu. The learned Sessions Judge dismissed this part of the statement as improvement in the prosecution case end did not hold that Munshi accused had caused injury on Santu deceased. What I want to stress is that this improvement, in the circumstances of the case, should reflect adversely on the credibility of the witnesses. They could not be said to be deposing without embellishment. If that be their attitude then there is no guarantee as to the truthfulness of the remaining part of their statement. It is already seen above that Radhey Shyam (P.W.1) has not been held to be a reliable witness. Since Prakash (P.W.3) also toes the line in fixing the head injury of Santu on Munshi that would be sufficient to place the court at its guard to believe him, even 'hough he is an injured witness. However, his evidence will have to be taken with great caution and scrutiny. In his examination in chief he did not state that Ravinder accused had thrown the bundle of his 'Pati' on the Rasta and had then brought lathi from his house. However, in his cross-examination he stated that when Ravinder was checked by Santu then Munshi appellant who was sitting at his house (nearby) shouted "MARO SALE KO." Then Ravinder threw the bundle of pati there and went to his own house and it was then that all the four accused brought lathis and started the attack. He stated that he had told these facts to the 1.0. He stated that he had told these facts to the 1.0. during investigation. However, 1.0. Abdul Halim (P.W.5) has stated that during investigation Prakash (P.W.3) did not state before him that Ravinder accused carrying 'pati' had passed over his Chabutra or that he had thrown his 'pati' there and gone to his house to return with a lathi. In this way the statement of Prakash (P.W.3) gives an improved version which he never stated before the 1.0. Again he has stated in his examination in chief that he could not say which witness had arrived at the spot. From these circumstances, it is rightly argued by the learned counsel for the appellants that Prakash, even though an injured witness, does not inspire confidence regarding the manner in which the occurrence took place. The learned counsel for the appellants has further pointed out that Prakash had admitted in his cross-examination that there is an enmity between him and the our accused for the last 2 or 3 years inasmuch as the accused used to harass them. It is further argued that when Radhey Shyam (P.W.1) was not on the spot and did not witness the occurrence yet he preferred to name the four accused in the F.I.R then his cousin Prakash (P.W.3) also toed his line. Whatever be the circumstances the fact remains that this witness Prakash, inspite of his being injured witness, could not be believed regarding the manner in which the occurrence took place. The above discussion would indicate that prosecution has failed to prove their case against the appellants with all certainty. At least a strong doubt persists about its correctness. The benefit of this doubt must go to the appellants and they must be acquitted. The appeal is allowed. The convictions and sentences awarded by the learned Additional Sessions Judge against each of the two appellants are set aside. They are acquitted of the offences charged. They are on bail. They need not surrender to their bail bonds which are cancelled and their sureties discharged.