JUDGMENT Virendra Kumar, J. - Appellants Ram Narain, Roop Narain, Ramu and Sarjoo filed this criminal appeal against the judgment and order dated 29-9-1978 passed by IV Addl. District and Sessions Judge, Hardoi convicting each of the appellants under S. 302 read with S. 34, I.P.C. and sentencing to imprisonment for life. 2. During pendency of the appeal appellants Sarju died. Consequently, the appeal abated with regard to him. 3. The prosecution case is stated briefly. On 1-9-1977 Aswani Kumar (deceased) was going from his house situated in village Dhandhar to his college on a bicycle. At about 9:30 a.m. when he reached in the Usar of village Dhandhar all the four appellants arrived there. Appellants Rani Narain and Rup Narain who are the real brothers, pushed him while he was moving on the cycle and over-powered him. The remaining two appellants, namely, Ramu and Sarju who had knives with them, assaulted and injured Ashwani Kumar who died instantaneously due to the injuries. The incident was witnessed by Mahabir (P.W. 2) and Sumer (P.W. 3) who were present in the neighbouring fields. Besides them a number of other persons had also arrived at the scene of occurrence. On their chasing all the appellants escaped towards West. A message was sent to the father of the deceased Ashwani Kumar Kalika Singh (P.W. 1) the father of the deceased Ashwani Kumar along with his brother arrived at the scene of occurrence and found the dead body lying over there, Kalika Singh sent a person (Bhagat Singh) to P.S. Qasimpur to intimate about the murder. Report was not lodged at P.S. Qasimpur on the ground that the matter related to P.S. Baghauli where a written First Information Report was lodged of 6.15 p.m. on the same date i.e. on 1-9-77. On its basis a murder case was registered against the appellants. 4. According to the prosecution there existed motive for commission of the murder. It is alleged that about 3 months prior to the incident, the animals of Ramu have grazed the field of sugarcane of Kalika Singh whereupon there was an altercation between Ramu appellant on the one hand and Ashwani Kumar and Bhagat Singh on the other hand. In that connection Ramu was beaten by Ashwani Kumar and Ashwani Kumar was threatened with dire consequences. 5. The case was investigated by Sub-Inspector Shri Krishna (P.W. 8). 6. In that connection Ramu was beaten by Ashwani Kumar and Ashwani Kumar was threatened with dire consequences. 5. The case was investigated by Sub-Inspector Shri Krishna (P.W. 8). 6. The Investigating Officer reached at the scene of the occurrence on the same night, that is, on 1-9-77. He prepared the inquest report, sealed the dead body after necessary formalities, prepared photo lash and challan lash. He also took into his possession the blood-stained earth and ordinary earth from the scene of occurrence books, shoe and cycle of the deceased, and prepared the memos in respect of the same. The dead body of Ashwaani Kumar was sent for post mortem examination, witnesses were also interrogated. On completion of the investigation charge-sheet was submitted against all the appellants. 7. Defence of the appellants is that they have been falsely implicated on account of enmity. A suggestion has been made to this effect that the murder of Ashwani Kumar was committed in the night of intervening September 1 and 2, 1977. 8. From the side of the prosecution Nine witnesses have been examined including the two prosecution witnesses, namely. Mahabir and Sumer who are the witnesses of the occurrence. P.W. 4 Shobha is a witnesses of relating to motive, apart from Kalika Singh (P.W. 1) who is father of the deceased as well as the informant. All other witnesses are formal. 9. Kalika Singh (P.W. 1) has affirmed that after getting the news of the murder of his son from Sri Mahabir (P.W. 2) he rushed to the spot and found his son Ashwani Kumar dead over there. He affirmed that his son was going to his college, namely, Janta Inter College, Kachhona as he was studying in Class XI there. 10. From the side of the defence no evidence has been adduced. 11. The medical evidence consisting of the testimony of Dr. A.N. Singh (P.W. 7) coupled with the post mortem examination report goes to make out that as a result of the post mortem examination of Ashwani Kumar (deceased) on 3-9-1977 at 8.45 a.m. the following ante-mortem injuries were found on the person of the deceased : 1. Punctured wound 2 cm. X 5 cm. X 2.5 cm. on the top of left shoulder. Direction of the injury was downwards and medial. 2. Punctured wound 2.5 cm. X 1 cm. Punctured wound 2 cm. X 5 cm. X 2.5 cm. on the top of left shoulder. Direction of the injury was downwards and medial. 2. Punctured wound 2.5 cm. X 1 cm. X chest cavity deep on the left side of chest in the infraxillary region 10 cm. left to the left nipple at 30'Clock position. The direction of the injury was down wards and medial. 3. Punctured wound 3 cm. X 1.25 cm. X chest cavaity deep on the left side hack, II cm. below left angle of the left scapula. The direction of the injury was down wards, forward and medial. 4. Punctured wound 1.5 cm. X 5 cm. X 2 cm. on the right side back, 6 cm. below right shoulder. 5. Punctured wound 3 cm. X 1.25 cm. X chest cavity deep on the right side of back just adjacent to the midline 12 cm. below injury No. 4. 6. Punctured wound 1.5 cm. X .5 cm. X muscle deep on the left side back, 18 cm. below injury No. 5 and 1 cm. left to midline. 7. Linear abrasion 3.5 cm. long on the upper side hack, 3 cm. below the lower angle of the left scapula. 8. Punctured wound 3 cm. X 1.25 cm. X 3.25 on the right side of neck, 7 cm. below the right ear lobule. 9. Abrasion 2.5 cm. X.25 cm. on the back of right leg, 5 cm. above the right ankle. 10. Abrasion 2.5 cm. X .5 cm. on the left side of chest 3.5 cm. below the left nipple at 7 O'Clock position. 12. On internal examination the following injuries were found 1. 6th rib was cut under injury No. 5 on the right side. 2. Pleura was cut on the right under injury No. 5. 3. The right lung was punctured under injury No. 5. 4. The diaphram was cut at two places under injury No. 2 and 3 on the left side. 5. Peritoneum was cut under Injury No. 2 and 3. 6. Spleen was punctured at two places under Injuries No. 2 and 3. 13. I n the stomach there was found semi- digested food and in the small intestine there was found digested food and faecal matter. 14. 5. Peritoneum was cut under Injury No. 2 and 3. 6. Spleen was punctured at two places under Injuries No. 2 and 3. 13. I n the stomach there was found semi- digested food and in the small intestine there was found digested food and faecal matter. 14. At the time of Post Mortem examination rigor mortis was found absent in the upper part of the body and the lower extrimity of the body was found in the state of advance decomposition. It is to be home in the mind that the post mortem examination was conduced in the morning of 3-9-77 while the time of murder as given by the prosecution is 9.30 a.m. on 1-9-1977. 15. In the opinion of the Doctor the murder would have been caused by any sharp cutting weapon like knife, BALLAM etc. The doctor has further opined that the deceased would have taken his food about 3-4 hours before his death. In the opinion of the Doctor the death has resulted due to shock and haemorrhage on account of ante-mortem injuries. (Doctor further opined that due to injuries it was possible that the victim could have died instantaneously on receiving injuries. He also stated that there could he duration of six hours on either side in the time of death of Ashwani Kumar. 16. The prosecution case of the occurrence is supported by Mahabir (P.W. 2) and Sumer (P.W. 3). Mahahir (P.W. 2) has affirmed that he was cutting the grass in the field situated in the neighbourhood of the place of occurrence as a labourer, at the time of occurrence. He stated that he was doing the work in the field of Kanhai. P.W. 3 Sumer has affirmed that he was grazing his buffalos in Usar land in the neighbourhood of the place of occurrence at the time of occurrence. Both the witnesses have sworn that when Ashwani Kumar was passing on his cycle appellant Ram Narain and Rup Narain pushed hint and thereafter the remaining two appellants Sarju and Ramu attacked and injured Ashwani Kumar with knives. They have further deposed that on their reaching to the scene of occurrence the appellants escaped. According to them Ashwani Kumar died instantenously at the scene of occurrence. These witnesses were cross- examined at length but their testimony remained un-shaken. They have further deposed that on their reaching to the scene of occurrence the appellants escaped. According to them Ashwani Kumar died instantenously at the scene of occurrence. These witnesses were cross- examined at length but their testimony remained un-shaken. It was suggested to both of them that they are cultivating the fields of Kalika Singh (the complaint) and therefore interested persons. But, this has been rebutted by both of them. The presence of these witnesses is assailed on this ground also that they are chance witnesses. In this connection, it is material to note that the place of occurrence was asserted by the prosecution side is the Usar which land understandably situated outside the village Abadi. It has come in evidence that there existed fields near the Usar. Therefore, the presence of Mahabir in one of the fields as a labourer for cutting the grass, is not improbable. There being the Usar the presence of P.W. 3 Sumer for the purpose of grazing the animals is also not improbable. No enmity of any of the appellants with either of the two witnesses is alleged. 17. It is material to note that the medical evidence (discussed above) also corroborates the testimony of Mahabir (P. W. 2) and Sumer (P.W. 3) about causing assault and injuries to Ashwani Kumar (deceased). As already mentioned, Seven punctured wounds found on the persons of the deceased, could, in the opinion of the Doctor, be caused by knife and the two appellants Ramu and Sarju are the persons who were said to be armed with the knife, having used the same in assaulting Ashwani Kumar. The authenticity of medical evidence is challenged by the learned counsel for the appellants on the ground that the postmortem examination was conducted very late, that is to say, on the 3rd day of the murder in question but the evidence on record contains explanation for delay in conduction of Post Mortem examination so late. The inquest report was prepared in the same night of 1.9.1977 after the arrival of Investigating Officer at the scene of occurrence. The Investigating Officer has further affirmed that the dead body was sealed on the same night but it could be sent for post mortem examination on the following morning. The inquest report was prepared in the same night of 1.9.1977 after the arrival of Investigating Officer at the scene of occurrence. The Investigating Officer has further affirmed that the dead body was sealed on the same night but it could be sent for post mortem examination on the following morning. The papers prepared in connection with the sending of the dead body for post mortem examination such as photo lash challan lash, letter for post mortem examination hear the dale of 1-9-1977. 18. P.W. 5 Constable Hardwar Singh has deposed that it was on 1-9-77 that the dead body in the sealed condition along with papers was handed over to him by the Investigating Officer, obviously for the purpose of taking it for post mortem examination. He has stated that on 2-9-1977 at about 2.30 or 3.(X) p.m. he brought the dead body to the Police lines at Hardoi and at about 4 p.m. he took the same to the Hospital. Post Mortem examination could be conducted on 3-9-1977 at about 8.45 p.m. by Dr. A.N. Singh. Thus, delay in conducting the post mortem examination in this case does not raise suspicion. 19. Prosecution version is corroborated by the First Information Report in all material particulars. The First Information Report wash lodged on 1-9-77 at 6.15 p.m. at Police Station Bhaghauli situated at 11 miles from the place of occurrence. From the side of the appellants the First Information Report is assailed on the ground that it is highly delayed. From the side of the prosecution there have come on record the circumstances which go to explain (he delay in lodging the First Information Report. It appears from the testimony of P.W. 1 Kalika Singh, informant that he was not sure whether the place of occurrence which is situated in Usar of village Dhandhar, lay within the circle of Police Station Bhaghauli or Police Station Qasimpur. It was, therefore, he sent his brother Bhagat Singh to Police Station Qasimpur which was situated comparatively at shorter distance, that is, nine miles from the place of occurrence for informing about the incident. The prosecution evidence shows that when it was informed that The place of occurrence fell within the circle of Police Station Bhaghauli and no report could he lodged there, Kalika Singh (P.W. 1) proceeded to the Police Station Bhaghauli and lodged a written report therein. The prosecution evidence shows that when it was informed that The place of occurrence fell within the circle of Police Station Bhaghauli and no report could he lodged there, Kalika Singh (P.W. 1) proceeded to the Police Station Bhaghauli and lodged a written report therein. In these circumstances, it cannot he said that there was any inordinate delay in lodging the First Information Report. Kalika Singh (P.W. 1) has no doubt stated in cross- examination that he knew from before that the village Dhandhar situated within the Circle of Police Station Bhaghauli but he has not stated nor he seems to he sure that the place of occurrence which was in Usar also fell within the circle of Police Station Bhaghauli. It was, therefore, that he first sent his brother to police Station Qasimpur. It was not necessary for Kalika Singh to mention the name of his brother Bhagat Singh in the First Information Report as the person sent to Police Station Qasimpur. In the First Information Report he has clearly mentioned that first of all a man sent to P.S. Qasimpur but later on when he came to know that the place of occurrence fell within the circle of Police Station Bhaghauli, he went there for lodging the F.I.R. No doubt, in the First Information Report it is mentioned that after Ashwani Kumar was pushed by the appellants Ram Narain and Rup Narain, former was also over-powered by them after his fall from the cycle but this case of over-powering does not find corroboration in the oral evidence of the eye-witnesses Mahabir and Sumer. For this variation the entire First Information Report cannot be discredited. 20. According to the prosecution version there was motive for the commission of the offence. It is alleged that about 3 months prior to the murder, the animals of the appellant Ramu have grazed the sugar-cane field of Kalika Singh whereupon there was an altercation between Ashwani Kumar son of Kalika Singh and brother of Kalika Singh on the one hand and on the other hand Ramu appellant. The matter did not end there. Ashwani Kumar has belaboured Ramu whereupon Ramu threantened Ashwani Kumar with dire consequences. According to the prosecution side this murder was in pursuance of that threat. The prosecution version of motive is corroborated by P.W. 1 Kalika Singh as well as P.W. 4 Shobha. The matter did not end there. Ashwani Kumar has belaboured Ramu whereupon Ramu threantened Ashwani Kumar with dire consequences. According to the prosecution side this murder was in pursuance of that threat. The prosecution version of motive is corroborated by P.W. 1 Kalika Singh as well as P.W. 4 Shobha. Both have affirmed that about three months before the occurrence, in connection with grazing of field of Kalika Singh by the animals of Ramu an altercation and beating took place and a threat as mentioned above, was also 1 extended. The prosecution evidence on motive is satisfactorily made out but here it is important to note that from the side of the appellants only Ramu was involved in that incident and no other appellant. 21. From the side of the appellants it is contended that there was found only one shoe at the scene of occurrence and further there was not found any bag in which Ashwani Kumar is said to have taken his books to the College. Firstly, these are minor points relating to details. Secondly, full opportunity was not given to the witnesses of the prosecution to explain the absence of one shoe or of the bag. 22. Learned counsel for the appellants further contended that there was found semi- digested food in the stomach of the deceased and also digested food in the intestine and these circumstances go against the prosecution version that the murder of Ashwani Kumar took place at 9.30 a.m. According to the Doctor the semi-digested food could be there if the food was taken about three hours earlier. In this view of the matter, if Ashwani Kumar would have taken food in the morning of 1-9-1977 at about 6.30 a.m., the presence of semi-digested food in the stomach was quite natural and probable. Presence of some digested food and some faecal matter in the small intestine does not discredit the prosecution case that the murder has taken place at 9.30 a.m. 23. According to the defence version Ashwani Kuamr was man of had character and it was for that reason he was murdered in darkness of night. There is no evidence in support of it. Further suggestion of defence side that Ashwani Kumar used to stay at night in the village Palsaini occasionally stands rebutted by Kalika Singh (P.W. 1) the father of the deceased. 24. There is no evidence in support of it. Further suggestion of defence side that Ashwani Kumar used to stay at night in the village Palsaini occasionally stands rebutted by Kalika Singh (P.W. 1) the father of the deceased. 24. Learned counsel for the appellants further contended that none of the witnesses of the village Dhandhar has been produced as an eye-witness to the occurrence nor any cultivator of the fields in the neighbourhood of the place of the occurrence has been examined. In this connection it is important to note that the place of occurrence is a Usar which understandably lies outside the village Abadi. Two persons, namely, Mahabir and Sumer working in the neighbourhood of the place of occurrence have been examined. Names of some of the persons of the neighbourhood other than these two witnesses have been mentioned in the First Information Report as well as in the oral evidence produced in this case. It was not incumbent on the prosecution side to examine each and every witness to the occurrence. 25. It is the quality of evidence which matters. In view of the facts and circumstances, we come to the conclusion that the prosecution has fully established its case beyond all shadow of doubt against the appellant Ramu. 26. So far as the case of remaining two surviving appellants Ram Narain and Rup Narain is concerned, we find that there have come on record a number of circumstances which created a reasonable doubt on the point of their participation in the murder. According to the prosecution version, Ram Narain and Rup Narain were collected at the scene of occurrence along with the remaining two appellants Ram and Sarju with the common intention of committing the murder of Ashwani Kumar but it is noteworthy that none of these two appellants Ram Narain and Rup Narain had any weapon with him. It is not the prosecution case that they had injured Ashwani Kumar. Their role, according to the First Information Report, was of pushing Ashwani Kumar from his cycle, made him fall on the ground and over-powering him. No other role is assigned to their in the First Information Report. In the oral evidence brought on the record we rind a material variation with regard to the role of these appellants Ram Narain and Rup Narain. No other role is assigned to their in the First Information Report. In the oral evidence brought on the record we rind a material variation with regard to the role of these appellants Ram Narain and Rup Narain. None of the eye witnesses has mentioned that these two appellants have over-powered Ashwani Kumar. All that said against them, in the oral evidence is that these two appellants gave push to Ashwani Kuamr making him to fall down. Contention of the learned counsel for the appellants that if these two appellants would have been present at the scene of occurrence with the common intention of committing the murder of Ashwani Kumar it was but natural and probable that they would have attacked Ashwani Kumar after his fall, but even according the eye-witnesses account they did nothing of the sort. Testimony of P.W. 3 Sumer shows that these two appellants (Ram Narain and Rup Narain) were real brothers belonging to the khandan aswell as the party of the remaining two appellants who were armed with knives. Learned counsel for the appellants, therefore, argued that it is for this affinity and closeness of Ram Narain and Rup Narain with Ramu and Sarju that the formers have been implicated falsely. 27. Cases are not wanting when alongwith the real culprits other persons who are related to them or have close- affinity with them due to group in or otherwise, are also roped in by assigning to them some minor role in the incident. The prosecution has failed to establish its version against Ram Narain and Rup Narain beyond reasonable doubt. They are, therefore, entitled to acquittal on the ground of benefit of doubt. 28. The prosecution having brought home charge of murder against the appellant Ramu he was rightly convicted by the trial court under Section 302 read with Section 34, I.P.C. 29. The appeal is partly allowed. Conviction of the appellant Ramu under Section 302 read with Section 34, I.P.C. and sentencing of imprisonment for life passed by the trial court against him, are confirmed. His appeal is dismissed. He is on bail. His bail bonds are cancelled. Let him be taken into custody forthwith to serve out the sentence. 30. Chief Judicial Magistrate, Hardoi shall submit compliance report within six weeks. 31. The conviction and sentence of each of the two appellants Ram Narain and Rup Narain, are set aside. His appeal is dismissed. He is on bail. His bail bonds are cancelled. Let him be taken into custody forthwith to serve out the sentence. 30. Chief Judicial Magistrate, Hardoi shall submit compliance report within six weeks. 31. The conviction and sentence of each of the two appellants Ram Narain and Rup Narain, are set aside. Their appeal is allowed Both of them are on bail. Their bail bonds are set aside and sureties discharged.