V. P. MATHUR, J. ( 1 ) -THIS appeal challenges the judgment and order passed on 31. 3. 1978 by Mr. G. K. Trivedi, the then 1st Additional Sessions Judge of Basti in Sessions Trial No. 20 of 1977, whereby the learned Judge has convicted the appellant Ram Bilas under section 302, I. P. C. and sentenced him to imprisonment for life and appellants Ram Pragat and Kashi each under section 328, I. P. C. and sentenced them each to one years rigorous imprisonment. ( 2 ) THE occurrence concerns the murder of one Han Nath aged about 50 years resident of villagekathaicha, Police Station, Mahuli, District Basti. The occurrence took place on 7. 3. 1976 at about 8 in the morning and the First Information Report was lodged two miles away at Police Station, Mahuli the same day at 9. 30 a. m. by Smt. Munesra (P. W. 1) wife of Han Nath. ( 3 ) THE short pedigree will be relevant: ( 4 ) SOMAN had no son but only a daughter Smt. Munesra who is the first informant. Therefore, during the life time of her father even after her marriage she was living in the village-Kathaicha at the residence of her father along with her husband Harinath. The two appellants Ram Bilas and Kashi are distantly related to here. It is contended that Ram Pragat was is the Pradhan of the village is an associate of Ram Bilas and Kashi. Soman had transferred his entire property to Dharmraj. This had given a cause to Sheopal and Sheopals sons to be displeaded, because in this way the family property was going out of the family. A litigation took place in respect of this property after the death of Soman and had proceeded up to the High Court from where it was decided in favour of Dharmraj. Similarly a litigation in respect of the agricultural holdings also terminated in favour of Dharmraj from the Board of Revenue. It is contended that Ram Bilas, Kashi and their fathers had encroached upon the land and raised some unauthorised construction On Some land of Somans house. A suit was flied by Dharmraj seeking demolition and possession and it was decided in favour of Dharmraj from the Munsifs Court. Execution proceedings were started. It appears that during appeal stage, the execution by way of possession was refused, but execution by demolition was granted. A suit was flied by Dharmraj seeking demolition and possession and it was decided in favour of Dharmraj from the Munsifs Court. Execution proceedings were started. It appears that during appeal stage, the execution by way of possession was refused, but execution by demolition was granted. Dharmraj then preferred an appeal which was pending in the High Court at the time of this occurrence. ( 5 ) THE prosecution story further is that about six days prior to this occurrence at about noon, Ram Bilas, Ram Pragat and Kashi learnt that summonses have been issued by the High Court in the appeal that was pending there. They raided the house of Harinath, abused him and declared to kill him so that he may not be able to prosecute the litigation. Somehow Harinath escaped in spite of an attempt by these appellants to drag him out. They then went away after uttering abuses and Rambilas threatened that after his return from a marriage, he will settle the score by committing the murder of Harinath. It may also be mentioned here that against Lakhraj, father of Rambilas and against Kashi and Ram Pragat etc. on the report of Harinath, proceedings under section 107, Cr. P. C. had also started. ( 6 ) ON 7. 3. 1976 early in the morning, Harinath along with his wife Munesra bad gone to village Kadsara where Harinath had to get his Gandasa sharpened and Smt. Munesra had to contact some labourers to come and work in her fields. Harinath got hill Gandasa sharpened and was returning to his village, Smt. Munesra took some more time in contacting some labourers who promised to work for her the next day. She was also returning. At about 8 in the morning on 7. 3. 76 when Harinath had reached near the parti land of Abhimanu towards the south of the viii age Kathaicha and Smt. Munesra was further south near the culvert, some distance away from Harinath she saw that Harinath was lying on the ground. Ram Pragat and Kashi, appellants who were armed with lathis were pinning him down by pressing his hands and legs and Rambilas was sitting on his chest and in this manner all the three were giving him beating. Harinath was also scuffling underneath. There was a report of firing also. She raised an alarm and ran towards her husband. Ram Pragat and Kashi, appellants who were armed with lathis were pinning him down by pressing his hands and legs and Rambilas was sitting on his chest and in this manner all the three were giving him beating. Harinath was also scuffling underneath. There was a report of firing also. She raised an alarm and ran towards her husband. As chance will have it Paras Nath (P. W. 2) and Saud agar Singh (P. W. 3) who are both from village Sakrisha and had gone to village Nukta Beldaripurwa to fetch labourers, were also returning and heard her cries. They also came near the culvert and watched the occurrence from there; they all moved towards the scene of occurrence and meanwhile the appellants ran away from there. But before doing so, Rambilas put his leg on the neck of Harinath and pressed hard, as a result of which Harinath died on account of asphyxia. The witnesses saw Rambilas armed with a black object which was curved and shining at one end and which it is now said, might be a pistol. By the time that the witnesses reached the spot, they found Harinath already dead. ( 7 ) ONE Kauleshwar Prasad (P. W. 5) who is the cousin brother of one Bansh Babal who in turn is Samdhi of Harinath, came after hearing about the murder of Harinath and at the dictation of Smt. Munesra, wrote out the First Information Report Ext. Ka-l, with which Smt Munesra proceeded to Police Station, Mahuli. There on the basis of Ext. Ka-l at 9. 30 a. m. on 73. 76, the case was registered and a chick report Ext. Ka-2 was prepared. ( 8 ) THE Station Officer was not present at the police station at the time when the case was registered. Papers were sent to him. He is Baijnath pandey P. W. 2 ). On receiving the documents, he started the investigation at 12. 15 p. m. the same day, and after reaching the scene of occurrence, held inquest on the dead body and prepared necessary papers. He sent the dead body for post mortem examination and interrogated Smt. Munesra and some other witnesses, inspected the scene of occurrence and prepared site plan. Ram Pragat was arrested. On 8. 3. 1976 he went to the Sadar Hospital, Basti where Rambilas was already under the medical care. He was interrogated. He sent the dead body for post mortem examination and interrogated Smt. Munesra and some other witnesses, inspected the scene of occurrence and prepared site plan. Ram Pragat was arrested. On 8. 3. 1976 he went to the Sadar Hospital, Basti where Rambilas was already under the medical care. He was interrogated. Some more witnesses were interrogated including Parasnath and Saudagar Singh. On 10. 3. 1976 he received the post mortem examination report. On 18. 3. 1976 some more witnesses were examined and then after completing the investigation he submitted the charge sheet. ( 9 ) THE appellants took the stand that the whole case was false and fabricated Ram Bilas came with a cross version of the matter which was to the effect that Sheodass son-in-law of Harinath armed with tamancha and Bansh Bahal encircled him, when he was coming out of his sugarcane field. Sheodass fired at him causing him serious injuries on his chest. Harinath tried to give another cartridge to Sheodass, but Sheodass could not extract the spent cartridge from the pistol; Meanwhile Rambilas rushed at Sheodass, who threw the pistol and ran away. Harinath also tried to run but tripped and fell. Rambilas also fell upon him, but Bansh Bahal removed him and took Harinath towards the parti land of Abhimanu. ( 10 ) IN support of the prosecution version, the three eye-witnesses were Smt. Munesra, Parasnath and Saudagar Singh. All others were formal including Jagannath and Kauleshwar Prasad (P. Ws. 4 and 5), who speak about the motive. Head constable Rambali Yadav (P. W. 6) and S. I. Baijnath Pandey (P. W. 7) 1. 0. and Dr. U. R. Gupta (P. W. 8) who conducted the post mortem examination on the dead body of Harinath. ( 11 ) THE defence has examined six witnesses in this case. D. W. 1 Hariram is the Lohar who had allegedly sharpened the Gandasa of Harinath. He does not support the prosecution version. . Dr. S. K. Gin (D. W. 2) examined the injuries of Rambilas, vide, memo Ext. Kha-3. He was Medical Officer in the District Hospital, Basti, Han Om Saxena (D. W. 3) proves the report sent by Rambilas from Jail about his version of the occurrence. Ram Ugrah, Basu and Raghubanash Bahadur (D. Ws. 4,5 and 6) are the three other witnesses. S. K. Gin (D. W. 2) examined the injuries of Rambilas, vide, memo Ext. Kha-3. He was Medical Officer in the District Hospital, Basti, Han Om Saxena (D. W. 3) proves the report sent by Rambilas from Jail about his version of the occurrence. Ram Ugrah, Basu and Raghubanash Bahadur (D. Ws. 4,5 and 6) are the three other witnesses. ( 12 ) THE post mortem examination on the dead body of Harinath was conducted by Dr. U. R. Gupta (P. W. 8) and vide, report Ext. ka-lo he found the following external injuries on the dead body: (i) Abraded contusion 9 cms. x 4 cms on the middle of the right clavicular region with fracture of the clavicle underneath. (ii) Contusion 11 cms. x 10 cms. on the left cheek and ear. (iii) Contusion 6 cms. x 4 cms. on the middle of the front and front part of the right side neck. (iv) Abraded contusion 4 cms. x 2 cms. on the right cheek 1 cm. from the angle of the mouth. (v) Abraded contusion 4 cms. x 3 cms. on the front part of scrotum with dried blood clots. (vi) Multiple contusions of varying sizes all over back in an area of 30 cms. x 25 cms. ( 13 ) THERE was an extra-vasation of blood and deep staining of tissues. The internal examination revealed congestion of brain and pleura and fracture of the bones underneath injury No. 3 as well as congestion of larynx and trachea and both the lungs; Oesophagus, liver, spleen and kindneys were also congested. Injury No. 3 was a result of pressing of the neck by the leg and could be the cause of instantaneous death which was due to asphyxia. It could be a case of receiving all the injuries and consequent death at 8 a. m. on 7. 3. 1976. ( 14 ) AT this stage we may also look into the statement of Dr. S. K. Gin (D. W. 2) and injury-report submitted by him regarding the injuries on the person of appellant Ram Bilas. Dr. Gin was Medical Officer in the District Hospital at Basti and examined Rambilas on 7. 3. 3. 1976. ( 14 ) AT this stage we may also look into the statement of Dr. S. K. Gin (D. W. 2) and injury-report submitted by him regarding the injuries on the person of appellant Ram Bilas. Dr. Gin was Medical Officer in the District Hospital at Basti and examined Rambilas on 7. 3. 1976 at 7-45 p. m. It may be mentioned here that Rambilas along with Ram Pragat had reached the Thana at about 10-30 a. m. to lodge their version of the report and were promptly taken into custody on account of the fact that Smt. Munesras report had already been taken down and they were named accused in the murder case. Since Rambilas had injuries on his person, he was sent to the District Hospital, Basti for medical-examination and Dr. Gin found multiple gun shot wounds in an area of 30 cms. x 23 cms. on the front of his chest. These were all wounds of entry. There was no wound of exist anywhere. Blackening and charring were present and eighteen small pellets were removed from the wounds of injury. In the opinion of the doctor, the duration was of within half a day and the injuries had been caused by some fire-arm. ( 15 ) THE testimony of Munesra, Parasnath and Saud agar Singh clearly shows that by the time they saw what was happening; some distance away from the culvert towards the north in the parti land of Abhimanu, they found Harinath lying on the ground. His hands and legs were being pressed down by Ram Pragat and Kashi who were armed with lathis and they were also giving him blows. Rambilas was sitting on his chest and giving him blows. In the opinion of the witnesses, Rambilas was armed with some weapon which looked like a pistol. These witnesses and specially Smt. Munesra heard the sound of firing of a shot also. By the time that the witnesses raised an alarm and proceeded towards the scene of occurrence, the three appellants left the victim and went away but before doing so, Rambilas pressed the neck of the victim with his foot and obviously caused his death. This latter part of the story is however neither mentioned in the First Information Report nor in the statement given to the Investigating Officer. It is just an improvement on the original case. This latter part of the story is however neither mentioned in the First Information Report nor in the statement given to the Investigating Officer. It is just an improvement on the original case. The report of firing is spoken to by all the witnesses and it appears that according to them there was firing on the spot. Harinath had not received any gun shot injury and except injury No. 3 which could have been caused by the pressing of his neck, all other injuries specially injuries Nos. 1 and 2 could not have been caused by lows from fiet an foot. They were surely lathi injuries. The learned Sessions Judge has taken the view that an attempt was made by Rambilas to fire at Harinath but in the scuffle that had taken place the weapon however discharged itself upon Rambilas himself. This is not the prosecution version of the matter. This much however is certain from the testimony of the witnesses that in the same transaction, firing was also made. Who made it and how it was made, is not known. And we find the injuries on the person of Rambilas caused as a result of firing and proved by the Doctor Gin (D. W. 2) vide Ext. Kha-3. They are on vital part of the body and as a result of close range firing by a crude weapon. No explanation of these injuries is coming forth from the prosecution side. It is now well settled that where the accused receives serious and substantial in juries in the same transaction prosecution must explain the same. This explanation is not forth-coming and therefore even if we consider the statements of Smt. Munesra (P. W. I) Saudagar Singh (P. W. 3) and Parasnath (P. W. 2) as of any value, the beginning and the genesis of the occurrence remain shrouded in mystery. ( 16 ) PARASNATH and Saudagar Singh are both chance witnesses. It is really too much of a coincidence that Smt. Munesra, Parasnath and Saudagar Singh all go to fetch labourers to work in their fields, but none is able to get even one and they all return and meet near the culvert, precisely at the time when the alleged murder of Harinath was in progress. Parasnath and Saudagar Singh come from village Sahaicha. Their presence on the spot at 8 a. m. is highly doubtful. Parasnath and Saudagar Singh come from village Sahaicha. Their presence on the spot at 8 a. m. is highly doubtful. People do not move out from their homes so early in the morning at about 6 and go too far from their village to fetch labourers. Engagement is generally made in the preceding evening. We are not convinced that Parasnath and Saudagar Singh are natural and probable witnesses. We find them to be just chance witnesses. Smt. Munesras presence on the spot is also extremely doubtful. Both she and her husband Harinath go to the same village namely Kadsara. Harinath had to get his chaff cutter Gandasa sharpened. He reaches Hariram (D. W. 1) for that purpose and gets his work done. It is highly importable that so early in the morning at about 6, Hariram will start working and will oblige Harinath. There was hardly any occasion for such a work. Then again Munesra comes to the same village Kadsara to get labourers, which is inconceivable though not impossible. If in the same village both the works had to be done; there was no reason why both husband and wife should have gone. One of them could do both the word. Munesras presence, therefore on the spot, in view of the circumstances in which she speaks about her going to village Kadsara and return from there is highly doubtful. Hariram (D. W. 1) is undoubtedly a Lohar, from whom Harinath is said to have got his Gandasa sharpened. Han Ram (D. W. 1) enters the witness- box and denies that he sharpened my gandasa of Harinath on that date. The three eye witnesses Munesra, Parasnath and Saudagar Singh, therefore, are of doubtful veracity and on the testimony of these witnesses, the prosecution version cannot be considered to have been proved. ( 17 ) IT appears that some occurrence did take place in which Rambilas was positively involved on one side and Harinath on the other and both received injuries of course Harinath succumbed to his injuries. Rambilas escaped with firearm wounds on his chest. But both the versions given by the prosecution and the defence are unreliable and do not explain the situation at all. According to the prosecution version, there is no explanation of the injuries of Rambilas. Rambilas escaped with firearm wounds on his chest. But both the versions given by the prosecution and the defence are unreliable and do not explain the situation at all. According to the prosecution version, there is no explanation of the injuries of Rambilas. According to the defence version, the explanation sought to be given regarding the injuries sustained by Harinath is highly unsatisfactory and unbelievable. The presence of Ram Pragat and Kashi on the spot is extremely doubtful. Even the learned Sessions Judge has not found them guilty with the help of section 34 of the I. P. C. for the murder of Harinath. ( 18 ) IN our opinion the case is not made out at all. The prosecution has to stand on its own legs and any defect in the defence version unless it proves, the prosecution case will not in any way strengthen the prosecution version. ( 19 ) THIS is, therefore, a case of doubtful nature and the benefit must go to the appellants. ( 20 ) THE appeal is, therefore, allowed and the convictions of appellant Rambilas under section 302, Indian Penal Code and of Ram Pragat and Kashi under sections 323/34, I. P. C. are set aside and with that the sentences awarded to them namely of life imprisonment to Rambilas, and of rigorous imprisonment for one year to Ram Pragat and Kashi are also set aside. They are all acquitted. They are on bail. They need not surrender. Their bail bonds and sureties shall stand discharged. .