Judgment Ram Naresh Thakur, Phani Bhushan Prasad, JJ. 1. All the four appellants have been convicted under Sec.302/34 of the Indian Penal Code for committing the murder of Kedar Upadhya and each of them has been sentenced to undergo rigorous imprisonment for life. Appellants Sudarshan Ahir and jatadhari Ahir have been further convicted under Sec.27 of the Arms Act and sentenced to suffer rigorous imprisonment for three years each. The sentences awarded to these two appellants under the aforesaid two counts have been directed to run concurrently. 2. The prosecution story, as told by P. W.12, is that on 3rd June, 1980, his cousin Kedar Upadhya had gone to village yar at about 4.30 p. m. for bringing his cow which he had entrusted to devi Dayal (D. W.1) for grazing. The informant (P. W.12) and his nephew hira Shankar Upadhya (P. W.5), the son of the deceased, were casing in a field at about 6.30 p m. At that very time they found Kedar Upadhya returning from the side of village Yar. When Kedar upadhya reached near the Karha which is in the north of a well of his village, these appellants came there all of a sudden from the side of Rehat and surrounded the deceased. They all started assaulting the deceased with Kata and gun as a result of which the deceased fell down. The informant ran towards Kedar upadhya raising alarm at that time. Thereafter all the appellants are alleged to have fled away. When the informant and the son of the deceased (P. W.5)went to the place of occurrence, they found the deceased lying dead in a pool of blood. Villagers came on hulla. Some of the witnesses also saw these appellants running away. Thereafter, the deceased was taken to his house from where he was taken to the police station. 3. The informant (P. W.12) gave his statement at the police station on the basis of which a First Information Report (Exhibit 2) was drawn up and a case was registered. The investigating officer (P. W.14) came to the place of occurrence the next morning and inspected it. At the place of occurrence the informant handed over to p. W.14 the butt of a country-made gun, a country-made gun and some empty cartridges which he had found there. The investigating officer (P. W.14) came to the place of occurrence the next morning and inspected it. At the place of occurrence the informant handed over to p. W.14 the butt of a country-made gun, a country-made gun and some empty cartridges which he had found there. Subsequently, on being transferred, he handed over charge of this case to P. W.16 who, after completing investigation, submitted chargesheet against these appellants. 4. In course of trial, 16 witnesses were examined on behalf of the prosecution. The appellants denied the allegation, pleaded their innocence and claimed that they have been implicated falsely due to enmity. Six witnesses were also examined on their behalf. The trying court, on a consideration of the entire evidence, convicted the appellants as stated above. Hence this appeal. 5. Learned counsel appearing for the appellants has submitted that the learned trying court failed to appreciate the evidence on record correctly and properly and, therefore, it came to a wrong conclusion. The factum of murder has not been challenged or disputed. The only fact which has been challenged is that these appellants were not the persons who committed the murder of the deceased. 6. Dr. Hira Lal Gupta (P. W.13) conducted the post-mortem examination on the dead body of the deceased on 4th June, 1980, and the following antemortem injuries on his person : - " (1 ).- Incised wounds, five in number; varying from " to 3" x 1/4" to x scalp deed over the various sites of the head. (2 ).- Punctured oval irregular aperture 1" x 3/4" X muscle deep over the left side of the neck. (3 ).- Incised wound 1 "x " X bone deep over the back of the left hand. " Out of the three injuries, injury No. (2) was found to have been caused by a fire-arm and the rest two were found to have been caused by sharp cutting weapon like Kata. Death, in the opinion of the doctor, had taken place within 18 to 24 hours of the post-mortem examination. There is overwhelming evidence on the record to come to the conclusion that the deceased died of injuries. 7. The next question that now arises for consideration is as to whether these appellants caused the death of the deceased in the way as alleged by the prosecution. 8. There is overwhelming evidence on the record to come to the conclusion that the deceased died of injuries. 7. The next question that now arises for consideration is as to whether these appellants caused the death of the deceased in the way as alleged by the prosecution. 8. The informant (P. W.12) and Hira Shankar upadhya (P. W.5) are the only eye witnesses of the occurrence. P. W.5 is the son of the deceased and the informant (P. W.12) is the cousin of the deceased. 9. Ws.1, 3 and 4 have said that they saw the appellants running away and learnt about the occurrence from the aforesaid two witnesses. P. Ws.2, 6 and 8 are hearsay witnesses who claimed to have reached the place of occurrence soon after the occurrence and learnt about the name of the appellants to be the assailants of the deceased. P. Ws.9, 10 and 11 were tendered. P. W.15 is a formal witness P. Ws.14 and 16, as said above, are the investigating officers p. W.13 is the doctor who conducted the post-mortem examination and P. W.7 is a witness of seizure. 9. P. Ws.1,2,3,4, 6 and 8 are not named in the first Information Report, though according to the evidence in court, all these witnesses met the informant before he left for the police station. It has also come in evidence that P. Ws.1, 3 and 4 had told the informant and other witnesses that they had seen the appellants running away, but still they are not named in the First Information Report. 10. According to the prosecution case, the deceased had gone to village yar to bring his cow which he had given to D. W.1 Devi Dayal on Charwahi and while returning to his village, he met with this occurrence. Unfortunately, no witness of village Yar has been examined on behalf of the prosecution to support the prosecution version. Devi Dayal has come to depose on behalf of the appellants as D. W.1 and he has denied the prosecution case that he had taken the cow of the deceased on Charwahi. Nothing has been taken in cross-examination of D. W.1 to discredit his evidence except that the sister of appellants Sheo parshan Ahir and Sudarshan Ahir is married in his village. There is no case of the prosection that the deceased was returning to his village with the cow. Nothing has been taken in cross-examination of D. W.1 to discredit his evidence except that the sister of appellants Sheo parshan Ahir and Sudarshan Ahir is married in his village. There is no case of the prosection that the deceased was returning to his village with the cow. Therefore, we find that the story that the deceased had given his cow to Devi dayal has not been well proved. We must say that this is the genesis of the prosecution case because it was for this purpose that the deceased had gone to village Yar and while returning he was done to death. 11. The prosecution case further suffers from other infirmities. In the court the prosecution has developed its story by saying that the butt of a country-made gun, a country made gun and four empty cartridges were found at the place of occurrence which were collected by the informant and taken to his house along with the dead body and ultimately they were handed over to the investigating officer (P. W.14) on the next day when he came there. But not a word has been whispered in the First Information Report about this fact. It has not even been mentioned that anything was found at the place of occurrence. Learned counsel appearing for the State has submitted that it is a mere omission and for non-mentioning of this fact, the prosecution should not suffer. No doubt, only on this ground the prosecution case cannot be disbelieved but it goes a great way to demonstrate that the prosecution has not come with a true picture of the case. The presence of the butt of a country-made gun, another country-made gun and four empty cartridges at the place of occurrence is not an ordinary thing. The breaking of the butt of a country-made gun itself connotes that there was some scuffle from both sides. The informant (P. W.12) has himself admitted in court that there was some scuffle in between the deceased on the one hand and these appellants on the other in which the gun was broken. But surprisingly enough, this story of scuffle is also conspicuously absent in the First Information Report and thus, it is a subsequent development in the prosecution case. But surprisingly enough, this story of scuffle is also conspicuously absent in the First Information Report and thus, it is a subsequent development in the prosecution case. The presence of a broken piece of a country-made gun, another country-made gun and four empty cartridges goes to indicate that the occurrence took place in a somewhat different manner. 12. Not only this, though the occurrence is alleged to have taken place when the sun was still shining in the horizon and there were only four accused persons but still nobody has said as to who was armed with which weapon. Another significant thing is that there is consistent evidence that all the four appellants started assaulting the deceased indiscriminately. From the prosecution evidence it would also appear that two persons had fire-arms and more than one round was fired but strangely enough, only one gun-shot injury and two sharp cutting injuries were found on the person of the deceased, although there was, as stated earlier, indiscriminate assault on him, and in that view of the matter more than two injuries by sharp cutting weapon were expected. 13. It is also surprising that at about 6 p. m. when the Sun was still in the horizon P. Ws.5 and 12 had gone to case in the field. This is also a coincidence that both these persons had gone to case. If the First Information Report is read carefully, it will not appear that P. W.5 had actually seen the occurrence with his own eyes. P. W.12 has admitted that the deputy Superintendent of Police had come with the investigating officer and he was also examined by him. But he did not remember whether he had stated before the deputy Superintendent of Police in presence of the investigating officer that kedar Upadhya, while he was returning from village Yar, attended the call of nature near the field of Munni Upadhya and then he went to the orchard of Ramnandan to take water and while he was taking water he was assaulted there. P. W.14 has stated that in course of supervision the informant stated that while returning from village Yar, Kedar upadhya had attended the call of nature near the field of Munni Upadhya and had gone to the orchard of Ramnandan to take water and while taking water he was assaulted by the appellants. P. W.14 has stated that in course of supervision the informant stated that while returning from village Yar, Kedar upadhya had attended the call of nature near the field of Munni Upadhya and had gone to the orchard of Ramnandan to take water and while taking water he was assaulted by the appellants. Therefore, even on the point of place of occurrence, the prosecution story does not appear to be consistent. This orchard of Ramnandan is at a distance of about 100 yards from the place of occurrence, alleged in the First Information Report and as disclosed in the evidence of the prosecution witnesses. According to the prosecution case, the deceased had brought a dacoity case some days before the date of occurrence in which appellant Jumrati main who is the servant of Ramnandan had been made accused and, therefore, this occurrence took place. It has come in evidence that there were other accused persons also in that dacoity case. Therefore, the motive alleged does not appear to be so strong as to compel these appellants to kill the deceased, especially when three of the appellants are Hindus while one, namely, jumrati is a Muslim. From the evidence of p. W.1 it would appear that the prosecution witnesses have animosity with the appellants from before. P. W.1 has said in paragraph 3 that in the year 1976 he had filed a case against appellants sudarshan and Jatadhari and others, and one raghubir had filed a counter case against him, Ram Naresh Ojha (P. W.2)and the deceased Kedar Upadhya. Appellant Sudarshan was a witness for Raghubir in that case. He (P. W.1) has further said that deceased Kedar Upadhya, the informant Jagdish Upadhya and paras Upadhya were witnesses in his aforesaid case which was instituted in the year 1976. Then again, he has said that ramandan had filed a case against him, ramnaresh Ojha (P. W.2), Jagdish Upadhya the informant (P. W.12), Hira shankar Upadhya (P. W.5), Mukhdeo upadhya (P. W.7) and others. It would also appear from the evidence that P. Ws.2 and 3 are brothers amongst themselves, P. Ws.1 and 8 are full brothers, P. W.7 is the uncle of p. Ws.1 and 8 and P. W.6 is the son of P. W.4. It has also come in evidence that there are some khalihans near the place of occurrence. It would also appear from the evidence that P. Ws.2 and 3 are brothers amongst themselves, P. Ws.1 and 8 are full brothers, P. W.7 is the uncle of p. Ws.1 and 8 and P. W.6 is the son of P. W.4. It has also come in evidence that there are some khalihans near the place of occurrence. But pursons having their khalihans have not come to give evidence in the case. It has also been stated that a shirt was found hanging in the orchard of Ramnandan which belonged to Jumrati mian but there is no evidence to show that any one had seen Jumrati Mian wearing this shirt at any time. Jumrati has denied that this shirt belonged to him. No human blood was found on that shirt. 14. The prosecution has also led evidence that in course of investigation the investigating officer found some blood stains on the wall of the house of appellants Sudarshan Ahir and Sheoparshan Ahir. Admittedly no occurrence had taken place at or near about their house. The place of occurrence in the present case is far off from the house of these two appellants. It also appears that the blood found on the wall of the house of Sudarshan Ahir and sheoparshan Ahir were found to be human blood but how that human blood came there is a mystery. Therefore, the prosecution cannot take any advantage of that fact. 15. Taking into consideration the entire facts and circumstances appearing in the case, we are of the opinion that the prosecution has not been able to prove its case beyond all reasonable doubts. The appellants are, therefore, entitled to get the benefit of doubt. Accordingly, the appeal is allowed and the order of conviction and sentences passed against the appellants is set aside and they are discharged from their bail bonds. Appeal dismissed.