JUDGMENT I. P. Singh, J. 1. Ram Bahadur Singh, Babban Singh, Sarwan Singh and Prem Singh convicts-appellants have preferred this appeal against the judgment and order of Sri Ved Prakash Kalra, Vth Additional Sessions Judge, Deoria, dated 8-9-1977, passed in SIT. No. 16/77 convicting each one of the four appellants under section 302/34 IPC to life imprisonment and under section 324/34 IPC to one year RI. Both the sentences are ordered to run concurrently. 2. The prosecution case is that Dwarika deceased and the appellants were residents of village Bhaisantola Dumari, within Police Station Kasia, district Deoria. The plot of Babban Singh appellant was situated near the house of Dwarika deceased on the outskirts of the village Abadi. During the consolidation proceedings in the village the said plot of Babban Singh appellant was allotted to Oram Sabha for the purpose of road, Abadi, Khalihan etc. When Babban Singh appellant learnt about it, he constructed a Madhaiya and Nad on the said plot. Dwarika deceased moved an application in the court of Assistant Consolidation Officer for 'removal of the said Madaiya and Nad. On the other band, Babban Singh appellant moved an application to leave the said land as such under his occupation and exclude the same from the consolidation operation. The Assistant Consolidation officer recommended to the Consolidation officer for declaring the said land as Abadi land. In the said litiigation Dwarika deceased was doing pairvi on behalf of the village people and his action was resented to by Babban Singh appellant. The four appellants are related to each other. Ram Bahadur Singh appellant is the 'Sala' of the brother of Babban Singh appellant. Babban Singh appellant is nephew of Sarwan Singh appellant. Prem Singh appellant is the son of Sarwan Singh appellant. 3. On 21-11-1976, Dwarika deceased after having taken his meals was sleeping on a cot in the Verand (Osara) of his house, opening towards north. His minor son aged 4-5 years named Vijai was sleeping with him on the same cot. His other son Surendra Singh PW 6 and Sharda PW 2, the brother of the deceased Dwarika, were sleeping in the said Osara. ONe Vakil Singh the relation of the family was sleeping in the Kothari in the east of the said Osara. A lamp was left lighted in the Osara, placed in the tak or Ghajja. His other son Surendra Singh PW 6 and Sharda PW 2, the brother of the deceased Dwarika, were sleeping in the said Osara. ONe Vakil Singh the relation of the family was sleeping in the Kothari in the east of the said Osara. A lamp was left lighted in the Osara, placed in the tak or Ghajja. At about 9 p.m. Sharda complainant PW 2 was awakened by the sound of the: movement of some persons outside the Osara. He had also seen some torch light being flashed. He got up and called his nephew Surendra Singh PW 6, who also was awakened. Just then the four appellants approached them hurling abuses on Dwarika deceased. They were also shouting that Dwarika was harrasing them and he should be done away with. Babban Singh appellant pulled up the quilt of Dwarika and pointed out to his companions that he was sleeping there. Babban Singh is said to have picked up the minor boy Vijai from the cot of Dwarika and taken him out side the Osara and made him sit on the Nad. The other three appellants took out Hathgolas (Bombs) and threw them on Dwarika when he was still sleeping on the cot. He was badly injured. Then Babban Singh appellant shouted that he was not dead and they should throw more bombs on him. It was followed by a second attack of bombs by the said three appellants, which finished Dwarika. In the process, Sharda PW 2 and Surendra Singh PW 6, who were present inside the Osara also received injuries. The alarm raised and the explosion sound of the bombs attracted Munshi Singh and Banshu Singh PW 7 to the spot, who reached there with their torches. It is said that all the witnesses were able to see and recognise the appellants throwing the bombs on the deceased and thereafter running away. 4. Fir of the incident was lodged by Sharda PW 2 at P. S. Kasia, 6 kms. away, the same night at 00.05 hours (22-11-1976), approximately three hours after the incident. The post mortem examination on the dead body of Dwarika was conducted by Dr. J. P. Sharma PW 1 on 22-1.1-1976 at 3 p.m. The probable time since death was about 3/4 days. The duration fits in with the alleged hour of the occurrence. away, the same night at 00.05 hours (22-11-1976), approximately three hours after the incident. The post mortem examination on the dead body of Dwarika was conducted by Dr. J. P. Sharma PW 1 on 22-1.1-1976 at 3 p.m. The probable time since death was about 3/4 days. The duration fits in with the alleged hour of the occurrence. The external examination revealed the following ante-mortem injuries on his persons: :- (1) Mutilating wound covering the entire legs palm and dorsem and proximal parts of fingers and thumb with extensive Iaceratum of soft tissues and multiple fractures of metacorpals and proximal digits of finger with scorching of surrounding with 1-1/2" wide all around. (2) Lacerated wound 2" x 1 1/2" x chest cavity deep on left side chest 2" medial to left nipple with scorchiing and tattooing of skin of chest front of neck 14" x 12" area with multiple abrasions. (3) Lacerated wound 1/2" x 1/4" x 1/4" left side lower part of jaw (Lower). (4) Lacerated wound 1/2" x 1/2" x skin on the chin. (5) Multiple abrasions on right side and forearm front and medial side 12" x 4". (6) Multiple abrasions on 6" x 5" on left thigh front. (7) Multiple abrasions in an area of 5" x 4" front of right thigh. 5. The internal examination revealed fractures of 4, 5 and 6 left ribs. Left lung was ruptured, In the opinion of the doctor, the death was due to shock and haemorrhage, as a result of the said injuries. Those injuries were sufficient in the ordinary course of nature to cause death. They could be caused by explosion of bomb (Hathgola). They would be suffered at 9 p.m. of 21/22-11-76. 6. Sharda complainant PW 2 was medically examined by Dr. Jugal Bahadur Singh PW 9, on 22-11-1976 at 1 a.m. He had suffered one lacerated wound, one abrasion, two multiple abrasions and one multi black spot with burning of the hair on various parts of the body. All the injuries were simple and were fresh in duration. They could be caused by explosion. They could be suffered at 9 p.m. of 21-11-76. Surendra Singh PW 6 was medically examined by Dr. Maan Bahadur Mall PW 8, on 22-11-1976 at 5.45 a.m. He had suffered two lacerated wounds, one abrasion with swelling on different parts of his body. All the injuries were simple and were fresh in duration. They could be caused by explosion. They could be suffered at 9 p.m. of 21-11-76. Surendra Singh PW 6 was medically examined by Dr. Maan Bahadur Mall PW 8, on 22-11-1976 at 5.45 a.m. He had suffered two lacerated wounds, one abrasion with swelling on different parts of his body. All the injuries were simple and were caused by explosive accessories (Hathgola). The injuries were about half a day old and could also be suffered about 9 p.m. of 21-11-76. 7. The above injuries of the two injured persons go back to the alleged hour of the occurrence. 8. The defence of the appellants was of denial. They pleaded that they were falsely implicated in this case due to enmity. The prosecution examined in all witnesses including three eye witnesses, namely Sharda PW-2, Surendra Singh PW-6 and Banshu Singh PW 7. The appellants had examined two witnesses in defence. 9. After assessing the evidence on record, the learned Sessions Judge convicted and sentenced the appellant as above. 10. Out of the three eye witnesses, two namely Sharda PW 2 and Surendra Singh PW 6 are injured. Evidently, their presence on the spot cannot be denied. The whole question, therefore, for consideration will be as to whether they were able to recognise the appellants as the assailants or not. Of course, all of them were residents of same village and known to them from before. The incident is said to have taken place inside the Osara. According to the prosecution and the evidence of the said two injured witnesses, the assailants had actually entered the Osara before they threw 'Hathgola' in two instalments on Dwarika deceased. Prior to that, it is deposed by the said two witnesses that Sharda PW 2 was awakened by the sound of movement outside the Osara and he also noticed the torch light being flashed. In the meantime, he had awakened Surendra Singh PW 6, but before the deceased Dwarika could be awakened the assailants are said to have reached his cot. It was at that time that the above two witnesses claimed to have recognised those assailants as the four appellants and his face was facilitated by the light of the lamp burning inside the Osara. It was at that time that the above two witnesses claimed to have recognised those assailants as the four appellants and his face was facilitated by the light of the lamp burning inside the Osara. Before entering the Osara they were said to be shouting that Dwarika had harrassed them a lot, so he should be killed. The moment, assailants reached the cot of Dwarika-Babban Singh appellant is said to have pulled away the quilt with which he was covering himself, Babban Singh appellant found that the minor boy Vijay was also sleeping with Dwarika. He as if out of mercy lifted the boy and took him out of the Osara and made him sit at Nad, it was during this interval Chat the other three appellants are said to have thrown bombs at the deceased, who was found to survive that attack, so more bombs were thrown on him to finish him. In the cross-examination Sharda PW 2 stated that the bombs were thrown at the cot on which Dwarika was lying after standing quite adjacent to the cot. (Charpai ke set paschim khare hoker bam mare thhe.) The argument advanced by the learned counsel for the appellants is that a look at the site plan shows that the Investigating Officer during the inspection of the spot had found splinters of the bombs, scattered all over the Osara. According to the prosecution, Sharda PW 2 and Surendra Singh PW 6 were injured by the flying splinters of these bombs. They were certainly placed a little away from the cot, but if they were injured there is no reason why the three appellants, who were standing just adjacent to the cot of deceased Dwarika, were not injured and they escaped unhurt. It is argued that this circumstance, goes a long way to show that perhaps the incident did not take place in the manner as alleged. According do him one can realise that who ever were the assailants, they must have, out: of sence of self preservation remained at a distance while throwing bombs on the deceased Dwarika. It is argued that looking at the site plan the probabilities could be that the assailants would have thrown the bombs while standing outside the Osara. To us also that appears logical. It is argued that looking at the site plan the probabilities could be that the assailants would have thrown the bombs while standing outside the Osara. To us also that appears logical. If that was the situation, we do not think that there was any possibility of the assailants being recognised by Sharda PW 2 and Surendra Singh PW 6. Since the evidence does not show the presence of any light out side the Osara, to enable the witnesses to recognise them. Moreover, in such sort of affairs, it remains unconvincing that Sharda PW 2 and Surendra Singh PW 6 could have awakened before the bombs were thrown on the deceased Dwarika. Moreover,, the prosecution version that Babban Singh appellant had taken away the minor boy Vijai and made him sit on the Nad, out side the Osara, also does not appear to be convincing. One reason is that in the FIR it is mentioned that; the minor boy was just picked up from the cot and hurled out of the Osara. 11. Banshu Singh PW 7 claims that his house is situated 40-45 paces away from the Osara of the deceased and he was brought to the scene after hearing the explosion sounds as well as alarm of the injured. Of course, he stated that he had rushed to the spot with tie torch, but he does not say in so many words that be actually flashed his torch. The learned Sessions Judge has, however, noted in bis Inspection Note that the way to the bouse of this witness lies through circular route and the distance would not be less than 90 paces. The argument advanced by the learned counsel for the appellants is that it is highly improbable that he would be reaching the spot in good time to see the assailants running away, as claimed by him. it is also pointed out in the FIR that it has been mentioned that this witness BANSHU Singh (BANSHU Rao) had arrived at the spot and the entire attack by the appellants on the deceased as well as the appellants taking to their heals was witnessed by the inmates of the Osara and the others incoming relations of the deceased as well as by Munshi Singh and BANSHU Singh PW 7. This version of the FIR is not corroboroted by BANSHU Singh PW 7, who claims to have stopped at some place out side the Osara. He, therefore, could have no occasion to witness the entire incident. Evidently, he was brought to the spot, if at all, after the attack was over and the injured had raised alarm and the explosion sounds had already been emitted. Since this witness does not show that he had flashed his torch, so there was no possibility of his recognising the fleeing appellants. 12. As a result of the above discussion, we feel satisfied that none of the three eye witnesses was in a position to recognise the assailants. The motive on the part of the appellant is said to be enmity against Dwarika deceased, but the learned counsel for the appellants has pointed out that this enmity could exist both ways. It is pointed out that according to the prosecution Babban Singh had constructed a Madaiya on the land falling in front of the house of Dwarika deceased. It is argued that Dwarika deceased was directly affected by the construction of the said Madaiya and that is why he was taking up the case of the villagers to get it declared as a land for Rasta etc. and this could, as well, be the reason for false implication of the appellants. In what, we have already held above, we do not think this aspect of the case needs more illucidation. 13. We are of the firm opinion that the prosecution have failed to prove their case beyond all reasonable doubt. As a matter of fact, no reliance can be placed on the ocular evidence of the witnesses. The appeal must succeed. 14. The appeal is allowed. The conviction and sentences awarded by the learned Sessions Judge to each of the four appellants, are set aside. The appellants are acquitted of the charges levelled against them. They are on bail. They need not surrender to their bail bonds which are cancelled. Their sureties are discharged. Appeal allowed.