K. N. SHUKLA, J. ( 1 ) APPELLANT has been convicted under section 302 I. P. C. for committing murder of one Deosingh and has been sentenced to imprisonment for life. ( 2 ) ABOUT a couple of years before the date of incident i. e. 8-1-1983, deceased Deosingh had tried to act fresh with the younger brother's wife of the appellant. Since then the appellant was harbouring a grudge against him. It is said that on 8-1-1983 at about 11. 45 a. m. appellant and deceased Deosingh scuffled in the field of one Roopsingh. The appellant threw the deceased on the ground and strangulated him with a towel, Chhotelal (P. W. 1) produced as an eye-witness, lodged the First Information Report at Rurawan out-post soon after the incident i. e. at about 12. 150 clock. Investigating Officer Yadav reached the spot and prepared the inquest report of the dead body. There was lot of blood lying on the around which was seized and sealed. The body was sent for post mortem examination, Dr. Nema performed the autopsy and noted bruises on the left and right clavicles, shoulder, face, forehead and other places. He also noted ligature mark on the neck with multiple abrasions all round. On internal examination he noted blood and froth in the trachea and hemorrhage of lungs. In his opinion death was due to strangulation resulting in asphyxia. ( 3 ) ON the basis of eye-witness account and the medical opinion, the appellant was charged under section 302 of the I. P. C. for committing murder. ( 4 ) APPELLANT denied the pleaded that he was innocent. ( 5 ) THE F. I. R. (Ex. P. 1) was lodged by Chhotelal at Rurawan outpost and it was recorded as Dehati Nalishi. He claimed to be an eyewitness. He also mentioned the name of another eyewitness Bhurabai (P. W. 3 ). In Court, however, this witness as well as Bhurabai did not support the prosecution case at all. Chhotelal deniedt to have given the report as recorded in Ex. P-1. He was contradicted by the said report and his statement under section 161 Cr. P. C. but he struck to the position that he did not narrate the facts as mentioned in the F. I. R. Bhurabai (P. W. 3) stated that she did not see any incident and she was not even cross-examined by the prosecution. P-1. He was contradicted by the said report and his statement under section 161 Cr. P. C. but he struck to the position that he did not narrate the facts as mentioned in the F. I. R. Bhurabai (P. W. 3) stated that she did not see any incident and she was not even cross-examined by the prosecution. ( 6 ) LEARNED Addi. Sessions Judge however relied on the statements of Bhaiyan (P. W. 4 ). Chandrabai (P. W. 5) and Amar (P. W. 7) for finding the appellant guilty of the offence. Bhaiyan (P. W. 4) was not mentioned as a witness in the F. I. R. The Patwari who prepared the sketch relating to the incident (Ex. P-7) on 18-1-1983 did not refer to the presence of these three eyewitnesses, namely Bhaiyan, Chandrabai and Amar. He did however indicate the position from where witnesses Nanhebhai (P. W. 10), Bhurabai (P. W. 3) and Chhotelal (P. W. 1) witnessed the incident. This circumstance is suggestive of the fact that probably these so-called eyewitnesses were not relied on by the Investigating Officer when the map was prepared by the Patwari. ( 7 ) THESE witnesses were present on the date of the incident in the village and apparently the Investigating Officer was also present in village Rorawan on that day. However, statements of these three witnesses were not recorded by him on that day. Bhaiyan (P. W. 4) in examination-in- Chief stated that he had seen the appellant sitting on the chest of the deceased and hitting him. He however could not observe the weapon with which appellant was assaulting the deceased because it was evening time (SHAM KA SAMAY THA ). It was for the prosecution to clear this ambiguity by re-examining the witness because the incident took place at noon around 11. 45 a. m. Bhaiyans statement, therefore, is not worthy of reliance. ( 8 ) CHANDRABAI a girl aged about 15 years, stated that she saw Jaharsingh and Deosingh scuffling from her Badi, which is at a distance of about 20 Jaribs. In cross-examination she stated that she had seen back sides of two persons and later the residents of the village had told her that these two persons were Jaharsingh and Deosingh. As already noted statement of Chandrabai was recorded much later and not promptly. In cross-examination she stated that she had seen back sides of two persons and later the residents of the village had told her that these two persons were Jaharsingh and Deosingh. As already noted statement of Chandrabai was recorded much later and not promptly. No question was put to the Investigating Officer for the delay though learned Addi. Sessions Judge after perusing the case diary tried to find out an explanation by himself. Indeed, this was not a proper method of appreciating evidence in a case of such a serious nature. ( 9 ) AMAR (P. W. 7), a child aged about 7 years, stated that when he was grazing his cattle he saw the deceased lying on the ground while appellant Jaharsingh had tied a Tauliya around Deosinghs neck. He stated that he told this fact to Bhaiyan, his employer. Besides being a child witness, his testimony is not corroborated by Bhaiyan because Bhaiyan claims to be an eye-witness himself and, therefore, the question of this child informing him of the incident did not arise. In cross-examination be stated that on that very day, the Sub-Inspector had questioned him and he had told him about the incident. The Sub-Inspector, however, stated that this witness was examined by him on 10/1/1983 i. e. two days after the incident though he had reached the spot immediately after the F. I. R. was lodged. In cross-examination the witness further stared that he had only seen the back portions of the persons who were fighting and it was only later that villagers told him that the persons fighting were Jaharsingh and Deosingh. ( 10 ) WE have already noted that the sketch map prepared by the Patwari did not show the presence of these witnesses. Apart from the contradictions noted in their statements, the fact that they were not examined by the Investigating Officer when they were present in ihe village when, the Investigating Officer started investigation also made their testimony suspect. ( 11 ) IT is significant that the appellant was arrested immediately, after the incident as is evident from the arrest memo but no injury was noted on his person at the time of the arrest nor was he sent for medical examination. It is difficult to believe that a young man could have been strangulated by another man single handed without a fight. It is difficult to believe that a young man could have been strangulated by another man single handed without a fight. Had there been any struggle there ought to have been some marks of injuries on the person of the appellant. In Medical Jurisprudence of Dr. R. M. Jhala at pages 2-16-217 following observations have been made Invariable resistance offered by the victim leads to struggle and injuries both to the assailant as well as the accused. Such marks of injuries from corroborative signs as it is a well known fact that it is impossible to strangulate an adult healthy male in full senses, Sometimes the absence of these signs of resistance are explained by the presence of elements which prevent the, encountering of such resistance. These are in the form of bands or ropes tied round hands and feet. Otherwise a single man cannot successfully overpower a single person. Sometimes such resistance may not be present if there are many persons concerned in strangulating. ( 12 ) THUS, we find that the witnesses relied on by the learned trial Judge could not be considered as witnesses of truth and the probability that they were tutored could not be ruled out. We are, thus unable to uphold conviction of the appellant under section 302 I. P. C. or any other offence. The appeal is allowed and appellants conviction and sentence are set aside. He is acquitted of the charge. He be released, if in jail, forthwith unless required otherwise. .