Judgment O.P. Mehrotra, J. 1. THE above mentioned two appeals have been filed by Pan Singh and Sher Singh against the order dated 26-9-1977 passed by Additional Sessions Judge, Almora convicting appellant Sher Singh under section 302 IPC and appellant Pan Singh under section 302/34 IPC and sentencing both of them to imprisonment for life. As these two appeals arise out of the same incident, they were heard together and are being disposed of by Common judgment. 2. DECEASED Gopal Singh was the father of complainant Bachche Singh (PW 1). The two appellants are real brothers being sons of Dungar Singh and reside in the same village viz. Mall, Police Station Almora, in which the deceased and other eye witnesses resided. This occurrence is said to have taken place on 19-7-1975 at 2 p.m. and the first information report was lodged by Bachche Singh PW 1 on the same day at 5.45 p. m. at Police Station, Almora, which was at a distance of 7 furlongs from the spot. According to the prosecution case, Bisan Singh, uncle of the complainant, was residing at Haldwani for the last, three or four years. Originally he had given his land and house to appellant Sher Singh but during the previous year before this occurrence Bisan Singh took back his house and land from appellant Sher Singh and gave it to the complainant. Since then, the land of Bisan Singh was being cultivated by the complainant and his father while house of Bisan Singh was lying vacant. Appellant Sher Singh bore enmity and ill-will against the complainant and his father on this count. 3. ON 19-7-1975 at about 2 p. m. when the complainant and his father Gopal Singh were standing in the Angan (court yard) of their house, appellant Sher Singh armed with a Daranti (Sickle) and appellant Pan Singh armed with a lathi arrived there, appellant Sher Singh told Gopal Singh that he was cultivating the land of Bisan Singh but his house had fallen in the rain and asked him as to why he was not repairing the same. Gopal Singh replied that he had another house and that he would get the house repaired whenever he felt its necessity. Thereupon, the two appellants started assaulting Gopal Singh with Lathi and Daranti. Gopal Singh replied that he had another house and that he would get the house repaired whenever he felt its necessity. Thereupon, the two appellants started assaulting Gopal Singh with Lathi and Daranti. ON the alarm raised by the complainant:, witnesses Pan Singh Pradhan (PW 4), Diwan Singh (PW 5), Ratan Singh and several other persons arrived there and saved Gopal Singh. As Gopal Singh had received bleeding injuries on the head, the complainant took him to the hospital on a Kandi. ON the way he met Kisan Singh who scribed written report (Ex. Ka-1) at the dictation of Bachche Singh, who went to the Police Station, Almora and lodged the report at 5.45 P. M. 4. A case under section 307 IPC was registered and investigation was handed oyer to S. I. Sardar Singh (PW 9). Injured Gopal Singh was sent to the hospital where his injuries were examined by Dr. P. K. Tiwari (PW 2). He found the following injuries on his person : 1. Abrasion 1.0" x 1/2" on the Rt. fore arm posteriorly 4.00" from wrist point. 2. Incised wound muscle deep 1/2" x 1/4" on the scalp about 3.00" away from mid part of fore head, spindle shaped, clear cut, edges clean bleeding present, swelling present arround wound. 3. Abrasion 1/4" x 1/4" on the left wrist posterio laterally. Bleeding present seen. 4. Bruise on the left eyelid 1/4" x 1/2" towards the medial canthus. Blue in colour. Nature : Inj. No. 2 under observation (Adv. X-ray scalp), Taj. Nos.(1), (3) and (4)-Simple. Cause : Inj. 1 and 3 friction. Inj. 4 blunt object. Inj. 2 sharp object. Duration : 4-5 hrs (approx) fresh. Bleeding was present from right ear, The patient was omitting out food. The patient was received in unconscious state. His general condition was poor and irritable (vide Ex. Ka-2). As Gopal Singh was unconscious, his statement under section 161 Cr. P.C. or his dying declaration could not be recorded. He died on the night between 20/21-7-1975 at 1.10 a. m. 5. AUTOPSY on the dead body of Gopal Singh was conducted by Dr. M. L. Agarwal PW 3 on 21-7-1975 at 2.45 p. m. The deceased was aged about 50 years. He found the following ante mortem injuries :- 1. Incised wound 1.3 cm x .75 cm x deep on scalp 7.5 cm from mid point of forehead clotted blood seen. AUTOPSY on the dead body of Gopal Singh was conducted by Dr. M. L. Agarwal PW 3 on 21-7-1975 at 2.45 p. m. The deceased was aged about 50 years. He found the following ante mortem injuries :- 1. Incised wound 1.3 cm x .75 cm x deep on scalp 7.5 cm from mid point of forehead clotted blood seen. 2. Abrasion 2.5 cm x .75 cm from right forearm, posteriorly 10 cm from right wrist joint. 3. Abrasion .75 cm x .75 cm over left wrist on post lateral aspect. 4. Bruise left eyelid .75 cm x .75 can towards medial canthus. On exploration reveals blood collected under the scalp. The skull showed commutted fracture extending from the riight temporal bone to the left temporal bone running across both parietal bones involving a part of left side of frontal bone in irregular manner as shown in the diagram. Extradural clot occupying whole of frontal region, right parietal temporal region and left temporal region. Subdunal clot present over left parietal region. The brain was congested. Fractures were over both middle crantal fossa (temporal bone). The right chamber of heart was full of blood while left chamber was empty. The stomach was full of partially digested liquid. Small intestines contained semi digested material. Large intestines contained faecal matter. The death was due to coma as a result of head injuries (vide Ex. Ka-3). 6. IN the support of its case, the prosecution examined three eye witnesses viz. Bachche Singh (PW 1), Pan Singh Pradhan (PW 4) and Diwan Singh (PW 5). PW 2 Dr. R. K. Tiwari had examined the injuries of Gopal Singh on 19-7-1975 at 6.15 P. M. while PW 3 Dr. M. L. Agarwal had conducted the post-mortem examination of his dead body on 21-7-1975 at 2.45 P. M. PW 6 Sohan Lal, PW 7 Natthu Singh and PW 8 Head Constable Vidyaram are formal witnesses PW 9 S. I. Sardar Singh is the investigating Officer of this case. Both the accused pleaded not guilty. They denied the prosecution allegations regarding the motive as well as the occurrence and stated that they had been falsely implicated on account of enmity. They did not adduce any oral evidence. 7. Both the accused pleaded not guilty. They denied the prosecution allegations regarding the motive as well as the occurrence and stated that they had been falsely implicated on account of enmity. They did not adduce any oral evidence. 7. THE learned Sessions Judge believed the prosecution witnesses and relying upon their testimony, he held that accused Sher Singh gave a Daranti (Sickle) blow on the head of the deceased while Pan Singh gave Lathi blow on his head. He further held that both the accused had intention to kill the deceased and that they knew well that such injury would likely result in the death of Gopal Singh. Accordingly he held accused Sher Singh guilty of the charge under section 302 IPC simpliciter, while accused Pan Singh was held guilty for the offence under section 302 IPC tread with section 34 IPC and they were convicted as mentioned above. 8. SRI C. S. Saran, learned counsel appearing for the appellants vehemently contended that the presence of the three eye witnesses examined by the prosecution was highly doubtful and that in any case their testimony was not such on which implicit reliance could be placed. He pointed out to several inconsistencies and improbabilities in the prosecution case and contended that in all probability this murder had been committed by some unknown persons and that accused persons had been falsely implicated on account of enmity of suspicion. Having heard the learned counsel for both the parties at length and having carefully scrutinised the entire material on the record, we are of the opinion that the above contentions are not without force. We find that the prosecution witnesses were neither independent nor reliable and their very presence at the spot was highly doubtful. Instead of producing the natural witnesses residing in the locality or labourers working in a house under construction in the vicinity, who were expected to have rushed to the spot on hearing the alarm, the prosecution has examined partisan witnesses residing at considerable distance who had affinity with the complainant and who were inimically disposed towards the accused. We were taken through the entire evidence on the record and we have no hesitation in observing that we are not at all 'Convinced regarding the presence of the prosecution witnesses as also regarding the weapons used in this assault. We have valid reasons to hold that Daranti Ex. We were taken through the entire evidence on the record and we have no hesitation in observing that we are not at all 'Convinced regarding the presence of the prosecution witnesses as also regarding the weapons used in this assault. We have valid reasons to hold that Daranti Ex. 3 and Lathi Ex. 4 with which two appellants are said to have assaulted the deceased were not the weapons used in this assault and that the evidence regarding recovery had been fabricated for the purposes of this case. Neither the prosecution witnesses were reliable nor the investigation was fair and impartial. The prosecution evidence as lull of discrepancies and inconsistencies. However, instead of referring to all the contradictions and discrepancies, we propose to refer only to the salient points which are sufficient to shatter the prosecution 9. THERE can be no doubt that the parties had strained relations. However, enmity is a double edged weapon which cuts both ways. If the accused persons could take into their heads to commit murder of Gopal Singh on account of the enmity, it is equally true that if some unknown persons had committed this murder, the complainant would naturally suspect and would like to implicate the accused persons on account of the same enmity. 10. MATERIAL Ex. 3 Daranti and Ex. 4 Lathi are said to be the weapons used by the appellants for committing this murder., All the three eye witnesses were shown these weapons and they stated that appellant Sher Singh was armed with Daranti Ex. 3 and accused Pan Singh was armed with Lathi Ex. 4 and that they had assaulted the deceased with these weapons. It appears that the investigating officer showed the recovery of these weapons from the possession of the appellants after their arrest on 20-7-1975. The recovery memoes were prepared. They are not on the record and it is said that they are not traceable. We have, however, perused the original case diary and find that in the Parcha dated 20-7-75, there is a clear mention of these weapons having been recovered from the house of the appellants on 20-7-75. The recovery memoes were prepared. They are not on the record and it is said that they are not traceable. We have, however, perused the original case diary and find that in the Parcha dated 20-7-75, there is a clear mention of these weapons having been recovered from the house of the appellants on 20-7-75. However, complainant Bachche Singh (PW 1) stated in para 5 of his examination in chief that the accused persons had left Daranti and Lathi on the spot where they bad assaulted his father and that he had taken these weapons to the police station and deposited them there. These Daranti and Lathi were shown to all the eye witnesses and they categorically stated that these were the weapons with which the accused persons had assaulted the deceased. These weapons were even shown to the two doctors and they were questioned as to whether the injuries received by the deceased could have been caused by these weapons. Evidently, the prosecution was in a difficult position because the complainant had stated that the accused had left Daranti and Lathi on the spot and it was he who had deposited them at the police station, while the police had shown the recovery of these weapons from the possession of the accused persons. It appears to us that it was for this reason that the investigating officer withheld the recovery memos and stated that they were not traceable. Moreover, with a view to avoid this glaring inconsistency to come on the record, he did not even say that these weapons had been recovered by him from the possession of the accused persons and merely made a general statement that he had taken Daranti Ex. 3 and Lathi Ex. 4 in his possession and had prepared a Fard wil.hout saying anything as to from where and from whose possession these weapons were recovered. It is surprising that the learned Sessions Judge did not note this material discrepancy and did not ask the investigating Officer as to whethen he had recovered these weapons from the spot or whether these weapons had been handed over to him by the complainant or whether the same had been recovered from the possession of the accused persons. It is surprising that the learned Sessions Judge did not note this material discrepancy and did not ask the investigating Officer as to whethen he had recovered these weapons from the spot or whether these weapons had been handed over to him by the complainant or whether the same had been recovered from the possession of the accused persons. He did not even care to peruse the case diary which contained a clear note in the Parcha dated 20-7-75 that these weapons had been recovered from the house of the appellants. It is also noteworthy that question no. 11 put to the accused persons was to the effect that the investigating officer had recovered these weapons from their possession on 20-7-75 to which both the accused stated that these weapons did not belong to them and that the police had shown false recovery of these weapons from their possession. It is again surprising that the learned Sessions Judge permitted these questions being put to the accused persons without there being any evidence regarding the recovery of these weapons from the possession of the accused. It is all the more surprising that the learned Sessions Judge did not at all advert to the above material inconsistency in the prosecution case. Evidently, the learned Sessions Judge did not scrutinise the evidence in the right perspective as a result of which he fell into error in believing the prosecution case without caring to see that the above material discrepancy had not been reconciled. This leads us to the irresistible conclusion that the police had shown false recovery of these weapons from the possession of the appellants and that as a matter of fact, these weapons had been supplied to the police by the complainant himself. The complainant himself says that he had deposited these weapons at the police station, although he adds that these are the weapons which had been left by the accused alt the spot. His statement that these weapons had been left by the accused persons at the spot was evidently false, because according to the police papers these weapons were shown to have been recovered from the possession of the accused. His statement that these weapons had been left by the accused persons at the spot was evidently false, because according to the police papers these weapons were shown to have been recovered from the possession of the accused. The fact appears to be that this occurrence had not been witnessed by any one and on the basis of the injuries received by the deceased, the prosecution decided to show that the deceased had been assaulted with Daranti and Lathi and hence the investigating officer asked the complainant to bring a Daranti and Lathi for fabricating this evidence. Accordingly the complainant uprooted a Rembans stick and arranged for a Daranti and took these weapons to the polios station and handed them over to the I.O., who prepared false recovery memoes showing recovery of these weapons from the possession of the accused. However, when the complainant entered the witness box he forgot regarding fabrication of the evidence of recovery, and this much truth came out from his mouth that he had deposited Daranti Ex. 3 and Lathi Ex. 4 at the police station. It was thus evident that the police had fabricated false evidence showing the recovery of these weapons from the appellants. This is not a case where it could be said that the witnesses were truthful and if the police had fabricated false evidence of recovery, the same should be brushed aside and should not be taken into consideration. The above material discrepancy demolishes the entire prosecution case and shows that the witnesses were not at all truthful and reliable. It was evident that Ex. 3 and 4 are not the weapons used in this assault and left by the accused at the spot. That being so, it was not possible to believe the eye witnesses when they stated that these were the weapons with which the accused persons had assaulted the deceased. Moreover, there are a number of other material discrepancies which clearly go to show that none of the prosecution witnesses was actually present at the spot and had seen the occurrence. There are discrepancies on the point as to whether both the accused had come together with these weapons, or whether they came separately from different directions, and whether they first came barehanded and then brought the weapons. The first information report indicates that both of them came together and were already armed with these weapons. There are discrepancies on the point as to whether both the accused had come together with these weapons, or whether they came separately from different directions, and whether they first came barehanded and then brought the weapons. The first information report indicates that both of them came together and were already armed with these weapons. The statement of PW 1 Bachche Singh shows that at first there was an altercation and thereafter Sher Singh brought a Daranti and Pan Singh brought a Lathi. The statement of Pan Singh Pradhan (PW 4) on the other hand shows that it was accused Sher Singh alone who first went towards the house of the deceased with a Daranti in his hand and that accused Pan Singh came bare handed from his house and he uprooted a Rambans stick from the spot and gave a blow on the head of the deceased. PW 5 Diwan Singh stated that on hearing Shor and Halla Gulla he went there and found Sher Singh with a Daranti and Pan Singh uprooted a Lattha (Lathi) and then both of them assaulted the deceased. It is not possible to reconcile these statements. We need not reproduce the large number of other discrepancies occurring in the oral testimony because, in our opinion, the above material discrepancies are sufficient to show that the prosecution had not come with clean hands and that the prosecution witnesses were not truthful. 11. EVEN the medical evidence was somewhat inconsistent with the prosecution case. It is noteworthy th3t fatal injury no. 2 received by the deceased must have been caused by a sharp-edged and heavy weapon especially when there was commuted fracture of temporal and both parietal bones under it. There was little chance of that injury being caused by Earanti Ex. 3. Dr. P. K. Tiwari PW 2 stated that tip of Daranti Ex. 3 was partially sharp and partially blunt and that it was not probable that puncture could be caused by the tip of that Daranti. As a matter of fact, if these weapons were not used in this assault it was not possible to place any reliance on the testimony of the eye witnesses. 12. FROM the evidence on record we are fully convinced that the prosecution witnesses were not present at the spot and had not seen the deceased being assaulted, and that their testimony was not at all reliable. 12. FROM the evidence on record we are fully convinced that the prosecution witnesses were not present at the spot and had not seen the deceased being assaulted, and that their testimony was not at all reliable. We further find that Ex. 3 Daranti and Lathi Ex. 4 were not the weapons used in this assault and that false recovery of these weapons from the possession of the appellants has been shown by the police. The prosecution had utterly failed to prove its case by reliable and cogent evidence. The learned Sessions Judge had fallen into grave error in overlooking the above material aspects of the case and in believing the prosecution witnesses in a mechanical manner. Under these circumstances, we have no other alternative but to hold the appellants not guilty and acquit them. In the result, the appeal succeeds. The conviction of the appellants under section 302 and 302/34 IPC and the sentence of life imprisonment awarded to them are set aside and they are acquitted of the said offences. They are on bail. They need not surrender to their bail bonds which are cancelled and sureties discharged. Appeal allowed.