KAMLESHWAR NATH, J. Having heard the learned counsels for the parties, we allowed the appeal as follows ; "for reasons to follow this appeal, the conviction of apppellants Hari Ram and Bhagwati for the offence punishable under Section 302 read with Section 34, I. P. C. and of Ghulam for the offence punishable under Section 323/34, I. P. C. , are set aside. They are acquitted. They are on bail, their bail bonds are discharged and they need not surrender. " 2. We give our reasons for the decision. Appellants Ghulaim and Bhagwati are own brother ; appellant Hari Ram is the son of Ghulam. Bhagwati and Hari Ram have been convicted for the offence punishable under Section 302 read with Section 34 I. P. C. and sentenced to undergo imprisonment for life. Ghulam has been convicted for an offence punishable under Section 323 read with Section 34, I. P. C. and sentenced to undergo R. I. for one year. 3. On 15-1-76 one Nand Lal of village Porai, where the appellants also belong, is said to have been murdered while his brother Badlu is said to have been attacked with lathi at about 2 p. m. 4. The prosecution case is that Nand Lal deceased had worked as a labour at the house of the accused about a month before the occurrence but his wages were outstanding. On 15-1-76 at about 2 p. m. he is said to hive gone to the house of the accused where he demanded the payment from accused Ghulam. Ghulam is said to have resented for the demand made on a day of festival, namely, Sankranti (Khichari) and gave a call to Bhagwati and Han Ram to beat Nand Lal Badlu (P. W. I) who is said to have been present at his house at about 25 or 30 steps, heard the shouts of Nand Lal and ran up. it is said that he saw Bhagwati and Hari Ram attacking Nand Lal with lathis and when he tried to save Nand Lal, they beat him as well. The incident is said to have been seen by Buddhu (P. W. 2) and Ram Jiyawan (P. W. 3) and some other persons. The appellants however escaped into their house and could not be captured. 5. The incident is said to have been seen by Buddhu (P. W. 2) and Ram Jiyawan (P. W. 3) and some other persons. The appellants however escaped into their house and could not be captured. 5. Nand Lal was taken from the spot in an injured state to his house and was then Lald in a bullock cart. He was taken to Jetuwa Hospital about 2 or 3 miles away his injuries were examined by Dr. S. N. Srivastava (PW 8j on the same day at 3. 10 p. m. The Doctor found 2 lacerated wounds on the left side of the head and 1 abrasion on the right side of the person of Nand Lal, Badlu did not get himself examiaed at the Hospital. 6. Badlu, however, brought Nand Lal back to his house and thererfter took him to Police Station Gurubuxganj, 6 miles away, but on way to the Police Station Nand Lal died at the Chauraha of Gurubuxganj. , He then got the F. 1. R. written at Gurubuxganj Chauraha and lodged it at the Police Station in the night between 16th and 17th January, 1976 at 12. 30. 7. The check report was prepared by Constable Krishna Pal Singh (PW 6) in the absence of the Investigating Officer. The papers of the case were sent to Investigating Officer S. 1. Bholai Ram in village Ashanandpur. He then proceeded to Chauraha of Gurubaganj, examined the dead body, prepared the Panchayat-nama and other connected papers, sealed it and sent it through Constable Anmol Singh ( PW 5) for post-mortem examination. He interrogated Badlu (PW 1j and thereafter reached the spot at about 5 p. m. (on 16-1-76) where recorded the statement of Ram Jiyawan (PW 3), Badlu (PW 2) and prepared the site plan. 8. The post-mortem examination of Nand Lal was done by Dr. V. K. Varma (PW4) on 17-1-76 at 3 p. m. He also noticed 2 lacerated wounds on left side of the head of Nand Lal and 1 abrasion on the right of the abdomen. The partial bone of the left side was found fractured under Jacerated wound No. 1. The stomach of Nand Lal had/oz. of semi-digested food material; both the intestines had gases and faecal matter. The cause of death was described to be shock and haemorrhage due to lacerated wounds which were considered to be sufficient for causing death. 9. The partial bone of the left side was found fractured under Jacerated wound No. 1. The stomach of Nand Lal had/oz. of semi-digested food material; both the intestines had gases and faecal matter. The cause of death was described to be shock and haemorrhage due to lacerated wounds which were considered to be sufficient for causing death. 9. In course of time the appellants were put up for trial. They denied the prosecution case and said that they have been falsely implicated due to enmity. Appellant Bhagwati stated, as also suggested in the cross-examination of Badlu (PW 1), that on that day when his wile had gone to ease herself in the Arhar field, Nand Lal who was in a drunken state, criminally assaulted the lady. He said that on the shouts of the lady he ran up and delivered 2 danda blows at Nand Lal and brought back his wife to the house. 10. The prosecution examined PW 1 Badlu, PW 2 Buddhu and PW 3 Ram Jiyawan to prove the facts of the case. 11. Dr. S. N. Srivastava (PW 8) and V. K. Verma (PW 4) have given evidence of the medical examination and post-mortem examination of Nand Lal. Constable Krishna Pal Singh (PW 6) and Constable Anmol Singh (PW 5) have spoken respectively about preparation of the check report and the transport of the dead body safely for post-mortem examination. PW 7 S. I, Bholai Ram gave evidence of proceedings of investigation. 12. The appellant examined Smt. Tingan, the wife of Bhagwati as D. W 1 to make out the defence. 13. The learned Addl. Sessions Judge accepted the prosecution evidence and convicted and sentenced the appellants as indicated above. 14. Appearance was not made on behalf of the appellants when we took up the case and the list revised. We therefore went through the record with the aid of the learned Assistant Government Advocate. Almost at the end appearance was made by appellants learned counsel who made a few remarks. 15. Certain features of the case speak aloud. No blood-stains were found at the spot of murder, although, according to the evidence, the cloths of deceased Nand Lal were soiled with his blood PW 1 Badlu, the brother of the deceased who claims to be the eye-witness and to have received injuries himself while defending the decessed, was not medically examined. Certain features of the case speak aloud. No blood-stains were found at the spot of murder, although, according to the evidence, the cloths of deceased Nand Lal were soiled with his blood PW 1 Badlu, the brother of the deceased who claims to be the eye-witness and to have received injuries himself while defending the decessed, was not medically examined. The statement in the F. I. R. is that since the injuries were minor, Badlu did not get himself examined by the Doctor. It must be remembered that Badlu had accompanied injured Nand Lal to Jetuwa Hospital where the injuries of Nand Lal were examined. In his state ment, Badlu (PW 1) said that he did not get himself medically examined because he did not have money. This explanation, besides being in conflict with the version in the F. I. R. does not appeal to reason. 16. Again Badlu slated that Hari Ram and Bhagwati had delivered 3 or 4 lathi blows to him. The statement of P. W. 3 Ram Jiyawan who also claimed to by the eye-witness, said that Badlu had received only one lathi blow near his shoulder. In the general diary entry in which the case on the F. 1. R. of Badlu (PW 1) was registered constable Krishna Pal Singh (PW 6) noted down swelling on the wrist of the left hand on the outer side of left leg. Obviously enough these injuries were not near the shoulder. Above all, the Constable Clerk who recorded the F. 1. R. , having found injuries on the person of Badlu, reported in the F. I. R. was duty bound to refer Badlu for medical examination on behalf of the State itself. That would have saved any expenditure by Badlu. That also was not done. Thus, a very important circumstance regarding the presence of Badlu at the time of the occurrence is negatived. 17. The making of the F. I. R. is delayed. Police Station Gurubuxganj was only 6 miles from village Porai, the F. I. R. was lodged in the midnight of 15/16th of January, 1976 at about 12. 30 while the occurrence is said to have taken place at 2 p. m. on 15-1-76. The only explanation given is that Nand Lal was first taken to the Hospital at Jetuwa, 2 or 3 miles away. 30 while the occurrence is said to have taken place at 2 p. m. on 15-1-76. The only explanation given is that Nand Lal was first taken to the Hospital at Jetuwa, 2 or 3 miles away. That only explains the delay partly because the medical examination had been done at 3. 10 p. m. by PW 8. Dr. S. N. Srivastava which indicates that the distance between village Porai and the Hospital must have been covered in about one hour. 18. In this connection it is to be remembered that Nand Lal was brought from Jetuwa Hospital back to village Porai and thereafter they proceeded for Police Station Gurubuxganj. There is no satisfactory explanation for the injured being brought from Jetuwa Hospital to the village again. The F, I. R. itself was not written in the village but after Nand Lal had died ; it was written at Gurubxuganj Chauraha. There were therefore several hours at the disposal of the informant to deliberate over the facts relating to the commission of the offence. One of injuries sustained by Nand Lal is an abrasion 9 cm, x 3 cm. on the right side of the abdomen. 1 the statement of PW 1 Badlu, PW 2 Buddhu and PW 3 Ram Jiyawan are that after Nand Lal fell down injured, one lathi blow was delivered on his chest. On the face of it, neither the injury was caused on the chest, nor the lathi blow could just cause an abrasion. 19 The theory of Nand Lal going to the house of Ghulam to demand wages also does not appeal to reason. The statement of PW 1 badlu is that Nand Lal had worked for 8 days as a labourer for raising the wall of Ghulam one month before the incident. He said that Ghulam did not pay any wages and when Nand Lal demanded payment about 15 days before the incident, Ghulam asked him to demand money on the day of Khichari. However, he said that the dues were only Rs. 16. It is impossible to believe that if 8 days wages were unpaid, the amount the due have been only Rs. 16. It is also improbable that the dues may have remained outstanding for about a month. However, he said that the dues were only Rs. 16. It is impossible to believe that if 8 days wages were unpaid, the amount the due have been only Rs. 16. It is also improbable that the dues may have remained outstanding for about a month. It is also strange that if Ghulam had asked Nand Lal to turn up to collect the wages on the day of Khichari, he would have got infuriated because the demand was being made on the day of festival and would have gone to the extent of calling upon Bhagwati and Hari Ram to give him a beating. PW 2 Buddhu stated that at that time Ghulam also had lathi but Ghulam did not use his lathi. It was to be expected that if Ghulam got incited or infuriated at the demand and was inclined to give him a beating he could himself have delivered a few lathi blows rather than prompting others to beat Nand Lal. 20. Both PW 1 Badlu and PW Buddhu have stated that while Bhagwati and Hari Ram were striking Nand Lal with lathis, Ghulsum was prompting them to do so from a distance of about 4 or 5 steps ; Buddu (PW 2) said that Ghulam was prompting to kill. He did not make any such statement to the Investi gating Officer. The learned Additional Sessions Judge has rightly disbelieved the version of the prosecution witnesses that Ghulam had prompted Bhagwati and Hari Ram to kill Nand Lal and for that reason has not convicted him for the offence punishable under Section 302/34, I P C. 21. We have been taken through the entire evidence recorded in the lower court. On a consideration thereof in the light of the facts and circum stances discussed above, we are satisfied that the prosecution case was not proved at all. All the appellants therefore deserve to be acquitted and the appeal must be allowed. Appeal allowed .