JUDGMENT R.P. Shukla, J. - This appeal is directed against the judgment and order dated 28.2.77 in Sessions Trial No. 226A of 1975 by Sri B.P. Shukla, the then Additional Sessions Judge, Hamirpur, convicting and sentencing the appellants under sections 302/34 I.P.C. and 201 I.P.C. to life imprisonment and five years R.I. respectively to each of the appellants. The sentences were to run concurrently. 2. The prosecution case as disclosed from the first information report is as follows. Ram Lal Singh is the real uncle of Devi Din Singh, the first informant. They are residents of village Karhaiya, police station Maudaha district Hamirpur. Gariba Chamar had taken field of Ram Lal Singh on Betai quite some time before. Gariba got the field entered in his name in the revenue papers and he sold the same land to Ram Des son of Mahadev Brahman of the village, Jagnandan Singh (the deceased) the real brother of Devi Din Singh got an objection filed by Ram Lal Singh and he himself used to do the pairvi of the same. On the day of occurrence i.e. 9.4.75 a consolidation case was fixed before Consolidation Officer, Maudaha and after attending to that case Devi Din Singh, the first informant, his brother Jagnandan Singh and his uncle Ram Lal Singh were going home on a Saggar. A little before sun set, when they reached near the shop of Ram Das Brahman of the village, Hari Das armed with a spear, Ram Das, Ram Asrey armed with Pharsas and Uma Shanker Lohar armed with a countrymade pistol came in front of the Saggar. and stopped it. Jagnandan Singh was driving the Saggar. Hari Das held Jagnandan Singh by the hand and pulled him down. Uma Shanker fired with country-made pistol and Hari Das speared him. Jagnandan Singh raised alarm and fell down. Ram Das and Ram Asrejr assaulted him with Pharsas after he had fallen on the g round. Jagnandan Singh died there. Rajwa son of Ram Lal, Nathoo son of Kandhi and Ram Asrey son of Bhura of the village came and challenged. Rajwa, Nathu, Ram Asrey, Devi Din Singh and Ram Lal Singh raised alarm and ran to save Jagnandan Singh but they were threatened by the assailants that they would meet the same fate if dared to come near. Rajwa son of Ram Lal, Nathoo son of Kandhi and Ram Asrey son of Bhura of the village came and challenged. Rajwa, Nathu, Ram Asrey, Devi Din Singh and Ram Lal Singh raised alarm and ran to save Jagnandan Singh but they were threatened by the assailants that they would meet the same fate if dared to come near. Hari Des gave blows with the lathi part of his spear, on the legs of Ram Lal Singh causing him injuries. All the four assailants dragged the dead body of Jagnandan Singh towards the north of the side of pond known as Beer Talab. They placed the dead body on the heap of dung-cakes of Ram Das Kahar and put Sarsonda (dry plants of sarson) over it and set it on fire. Devi Din Singh and his uncle Ram Lal Singh and the witnesses were going near when Uma Shanker fired in the air and threatened that any one if dared to come near, will meet the same fate. They were frightened and hence did not go near the dead body. 3. Devi Din Singh along with village Chaukidar Bhola went to police station Maudaha and lodged the first information report at 1.00 a.m. on 10.4.1975. The report has been marked as Ext. Ka. 1. It was made in the presence of Sri Mool Chand, the then Station Officer of police station Maudaha. He took up the investigation of the case registered on the basis of this first information report Ext. Ka. 1 and after completion of the same submitted charge-sheet (Ext. K. 6) against all the four accused on 21.4.1975. During investigation Ram Lal Singh was got medically examined on 10.4.1975 at 4.30 p.m. at Public Health Centre, Maudaha by Dr. S.M. Krishna, Medical Officer in-charge of the said public health centre, who found the following injuries on his person.: INJURIES: (1) A reddish blue contusion 1" x 1" placed on left side of chest in the anterior auxilary line about 5" interal to left nipple. (2) A reddish blue contusion 1" x 1" placed on right side of foot on the lateral malleotus of right foot. There was swelling on ankel joint of right foot. 4. Above injuries are simple, caused by blunt object. Duration: About one day old. 5. (2) A reddish blue contusion 1" x 1" placed on right side of foot on the lateral malleotus of right foot. There was swelling on ankel joint of right foot. 4. Above injuries are simple, caused by blunt object. Duration: About one day old. 5. The dead body of Jagnandan Singh could not be found as it was completely burnt when the investigator reached the spot. However, few pieces of bones and a choora and ashes were taken in possession by the investigator. 6. The appellants were all charged under sections 302/34 and 201 I.P. C. and the appellant Hari Das was charged under section 323 I.P.C. for having caused lathi injuries to Ram Lal Singh and the appellants Ram Das, Ram Asray and Uma Shanker were charged under section 323/34 I.P.C. The appellants denied their participation in the occurrence and claimed that they were implicated due to enmity. They have examined D.W.1 Gangwa in defence. Out of the four appellants Ram Das, Hari Das and Ram Asrey are real brothers being the son of Mahadev Brahman and Uma Shanker is said to be their friend and companion. 7. The prosecution has examined P.W.1 Devi Din Singh P.W.2 Rajwa, P.W.3 Ram Asrey and P.W.5 Nathu as eye witnesses of the occurrence. Ram Lal Singh, who is said to have received the injuries in the said occurrence has not been examined by the prosecution. The case of the prosecution is assailed on the ground that there was no case in consolidation court on the date of occurrence and hence the question of deceased Jagnandan Singh, injured Ram Lal Singh and Devi Din Singh going to consolidation court does not arise and also the fact that the incident took place while they were on their return journey is falsified. 8. P.W.1 Devi Din Singh has deposed that he was coming back from Maudaha alongwith his brother Jagnandan Singh and uncle Ram Lal Singh after having attended the case relating to the field. It was a case between his uncle Ram Lal Singh and the appellant Ram Das. The case was before C.O.(Consolidation Officer). Jagnandan Singh (the deceased) had taken his uncle Ram Lal Singh to file objection before the consolidation officer. 9. In the cross-examination he has stated that the case was called out in the office of consolidation officer and the case was decided the very day. The case was before C.O.(Consolidation Officer). Jagnandan Singh (the deceased) had taken his uncle Ram Lal Singh to file objection before the consolidation officer. 9. In the cross-examination he has stated that the case was called out in the office of consolidation officer and the case was decided the very day. The objection had been filed earlier. He has admitted that he wrongly stated that objection was to be filed on that day. He has further stated that appellant Ram Das had also gone to attend that case. He admitted that Ram Lal Singh and Jagnandan Singh had signed on the file of the case in the court. The fact that they had gone to attend a case pending before the consolidation officer in which Ram Lal Singh and the appellant Ram Das were parties could have been proved by documents. The prosecution has produced summon Ext.Ka.25 relating to a case Hanumanta v. Ram Lal Singh pending before the S.O.C.(settlement Officer Consolidation) Hamirpur. According to this document Jagnandan Singh was required to attend the court of Settlement Officer Consolidation, Hamirpur on 9.4.75. This does not relate to the case before the consolidation officer Maudaha in which appellants Ram Das and Ram Lal Singh were parties. The defence has produced the certified copy of a document purporting to be a query made by Hari Das appellant through his advocate in writing from the consolidation officer Maudaha. According to this document no case purporting to be between Ram Lal Singh and Ram Das of village Karhaiya was fixed before him on 9.4.75 except one Sukh Nandi v. Bhura. The defence has filed copy of order dated 5.9.74 by consolidation officer Maudaha in case no. 1614 of village Karhaiya, police station Maudaha Ram Das v. Ram Lal. This document proves that the case between Ram Lal Singh and Ram Das was not decided on 9.4.1975 but it was decided on 5.9.1974. 10. The statement of P.W.1 Devi Din Singh that he along with his deceased brother and his uncle Ram Lal Singh was returning after attending a case between Ram Lal Singh and Ram Das, pending before the consolidation officer, Maudaha and that the said case was decided on that day is belied by these documents. 10. The statement of P.W.1 Devi Din Singh that he along with his deceased brother and his uncle Ram Lal Singh was returning after attending a case between Ram Lal Singh and Ram Das, pending before the consolidation officer, Maudaha and that the said case was decided on that day is belied by these documents. Devi Din Singh P.W.1 has stated in his cross-examination that there was no necessity of his going to Maudaha except that he drove Sagger (bullock cart) while going to Maudaha. He, further says that the said bullock cart was driven by 'Jagnandan Singh on the return journey. It will not be out of place to mention here that according to the statement of Devi Din Singh P.W.1 Jagnandan Singh the deceased was convicted for dacoity in the year 1968 and sentenced to eight years imprisonment. Jagnandan Singh was also convicted of murder. When Jagnandan Singh came out of Jail, there were proceeding as under section 107 Cr.P.C. between Jagnandan Singh on one side and P.W.1 Devi Din Singh and his father on the other side. 11. But this witness denied that this proceeding under section 107 Cr.P.C. between him and his brother was due to Smt. Shyam Kali. P.W.1 Devi Din Singh has also denied that children were born to Smt. Shyam Kali when his brother Jagnandan Singh was in jail but he has admitted that Smt. Shyam Kali was the wife of Jagnandan Singh Ext. Kha-2 a certified copy of chalani report under section 107/151 Cr.P.C. of police station Maudaha. According to this document, Devi Din Singh developed illicit relation with Smt. Shyam Kali wife of Jagnandan Singh during the period Jagnandan Singh was in Jail. When Jagnandan Singh came out from jail in the year 1970 he wanted his wife back but she had given birth to two children by Devi Din Singh and Devi Din Singh was not prepared to leave her. The relations between the brothers became so strained that preventive action under section 107/151 Cr.P.C. had to be taken by police of police station Maudaha. 12. The relations between the brothers became so strained that preventive action under section 107/151 Cr.P.C. had to be taken by police of police station Maudaha. 12. Considering that Devi Din Singh was not a party in the consolidation case and he had no business to go to Maudaha on that day except that he drove the bullock cart while going to Maudaha which could very well be driven by Jagnandan Singh himself and the relation between the two brothers appear to be like the relations between those who love the same land and the same woman; we are not inclined to believe that this witness at all went to Maudaha on that day. We are also not inclined to believe that any one of them went to Maudaha on 9.4.1975 Ext.Kha 2 also discloses that the appellant Ram Das was a witness against Devi Din Singh in the said proceeding under section 107 Cr.P.C. Devi Din Singh in his cross-examination has given evasive reply to the question whether Ram Das was a witness against him in the proceedings under section 107 Cr.P.C. P.W.1 Devi Din Singh has stated that he knew appellant Uma Shanker from his childhood and he also knew the name of his father from before the occurrence. But in the first information report he gave the name of the father of appellant Uma Shanker as Agyat (unknown). He admitted that he did so by mistake. The police station is about six miles from village Karhaiva but the report was lodged at 1.00 a.m. on 10.5.1975. He has taken about seven lours to cover this distance and make the report. The explanation is that he took a 'circuitous route out of fear of the appellants. According to his statement the appellants were busy burning the dead body, when he eft for the police station. Even in the first a formation report " os yksx yk'k dks tyk jgs gSA " has been mentioned by him. We are not inclined :o believe that there was any fear for him n the way when he had already left the 'appellants on the spot, busy burning the the dead body. 13. In the circumstances discussed above, we are of the opinion that the statement of P.W.1 Devi Din Singh does not inspire confidence. A look at the site plan Ext. 13. In the circumstances discussed above, we are of the opinion that the statement of P.W.1 Devi Din Singh does not inspire confidence. A look at the site plan Ext. Ka 12 will show that there are number of houses near about the scene of the occurrence. The time of occurrence is a little before the sun set. In the village people are generally on their door in the evening to give fodder to their cattles etc. It is strange that not a single resident of the nearby houses is coming to support the prosecution case. 14. P.W.2 Rajwa another eye witness has stated that his house is at some distance from the place of occurrence. He was at the place of Gangwa Badhai (carpenter) when he heard the alarm. He had gone to Gangwa to get a Pancha (apparatus used for moving thrasted crop) made by him. He has admitted that Gangwa is a "Kunthar (potter) but he works as carpenter. He has further stated that one Ram Das and one Kaloo are carpenters of his village . Gangwa is not a carpenter but a potter. He has admitted that he did not state under section 161 Cr.P.C. that he had been to Gangwa at the time of incident. P.W.3 Ram Asrey has also stated that he has been to Gangwa Kumhar. Gangwa Kumhar does the work of carpenter. He has stated that witnesses Rajwa and Nathu were also near him. He has admitted that he did not state the name of Gangwa to investigating Officer under section 161 Cr.P.C. He too had gone to Gangwa to get some agricultural implement known as tatawa. He could meet the investigating officer after two or three days, and till then he did not talk to any one about this incident. P.W.5 Nathu is a resident of village Imlia, police station Muakra District Hamirpur which is at a distance of 7 or 8 Kos from the village of incident. However, he has stated that he lived in the village of incident for the last two to four years before the occurrence. He, too was at the place of Gangwa when he heard the alarm. He has stated that the place of occurrence was not visible from the place of Gangwa. He heard the alarm there and went 30 to 40 paces then only the place of occurrence could be seen. He, too was at the place of Gangwa when he heard the alarm. He has stated that the place of occurrence was not visible from the place of Gangwa. He heard the alarm there and went 30 to 40 paces then only the place of occurrence could be seen. He had gone to Ganqwa to get a Jua (wooden Tyoke) made. He, too has admitted that he did not state to investigator that he has been at the place of Gangwa to get wooden Yoke made by him. It is interesting to note that P.W.2 Rajwa, P.W.3 Ram Asrey and P.W.5 Nathoo happened to be at the place of Gangwa to get same or the other agricultural implement made by him that evening. It is also interesting to note that all these three witnesses omitted to state before the investigating officer that they were at the place of Gangwa when they heard the alarm. All the three witnesses have admitted that their houses are at some distances from the scene of the occurrence. Meaning thereby they could not have seen the occurrence if they were at their respective houses. Even if for argument's sake it is accepted that Gangwa did work as carpenter it does not appear to reason as to why all the three witnesses went to his place at the time of sun set. In the village the carpenters stop their work in the evening due to insufficiency of light and also because they do their work from early morning till evening. 15. We are not inclined to believe that these witnesses would go to Gangwa at a time when Gangwa must have been about to close his work. They appear to us to be chance witnesses. The normal and natural witnesses would have been the residents of the vicinity of the place of occurrence. Gangwa has been examined as D.W.1. He is neither friendly to accused nor inimical to Devi Din Singh or the deceased Jagnandan Singh. He took oath to say that he is Kumhar(Potter) and not a Barahai(carpenter). In village life it is a matter of common experience that the people follow their traditional family trade. Of course there can be exceptions but Gangwa has taken oath to say that he does not come in the exception. He took oath to say that he is Kumhar(Potter) and not a Barahai(carpenter). In village life it is a matter of common experience that the people follow their traditional family trade. Of course there can be exceptions but Gangwa has taken oath to say that he does not come in the exception. He appears to be a truthful witness and, therefore, we are not inclined to believe that Raiwa, Ram Asrey and Nathu were at the place of Gangwa when they heard the alarm and witnessed the incident. 16. It is not necessary that the witness, if he is not inimically disposed will always tell the truth. At times the witnesses are inclined to choose sides because of factions in the village, therefore, the truth or the otherwise of the statements of witnesses should be tested on the touch-stone of circumstances and the probabilities attending the case. The evidence of these witnesses does not fair well when tested with respect to circumstances and the probabilities of the case. Their evidence may be true but it has to come in the category of must be true before a conviction is recorded on its basis. We entertain grave doubt in the truth of the evidence of these witnesses. In these circumstances appellants are entitled to benefit of doubt and consequent acquittal. 17. In the result, the appeal is allowed. The conviction and sentence awarded to the appellants are set aside. They are acquitted. it bail bonds are cancelled.