U. K. VARMA, J. ( 1 ) THE seven appellants Ram Pal Singh, Driga Vijai Singh, Roshan Singh, Naib singh, Man Singh, Berey Lal and Phool Singh were convicted under Section 302 read with Section 149 I. P. C. and Section 148 I. P. C. by Sri. H. C. Shukla, V Additional Sessions Judge, Hamirpur on 16/1/1981. On the first count, they were sentenced to imprisonment for life and on the second to two years Rigorous Imprisonment. Both these sentences were to run concurrently. Aggrieved by the judgment and order of the V. Additional Sessions Judge, the above seven persons have filed this appeal. ( 2 ) THE first information report of the incident marked Ex. Ka. 3, lodged by Veer Singh, the younger brother of the deceased Prahlad Singh at 11. 30 A. M. on 10/11/1979 in the police station Vivar, district Hamirpur shows the facts of the case to lie within a very small compass. It has been said that while Ram Lakhan, the brother of the three appellants Ram Pal Singh, Roshan Singh and Drig Vijai Singh, was playing cards in the Thakur Kuti on 14/11/1979 with Jai Karan Singh, the younger brother of Prahlad Singh deceased and Aabu Lal, Ram Lakhan abused Jai Karan. The latter could not bear the insult and there started a querrel wherein Babu Lal sided with Jai Karan. When Prahlad Singh who was a teacher in the Shishu. Mandir, Hamirpur, came to the village Ruripara on 17/11/1979, he made an effort to pacify the heat generated by the happening on 14/11/1979 and bring about a settlement but could not succeed. On 19/11/1979 as Prahlad Singh was returning to his house about 7 A. M. after attending to the call of nature in his Kachwara field wherein he had Newpagel Page2of7 sown Ute jwar crop, the appellants Ram Pal Singh, Roshan Singh and Drig Vijai Singh who were sons of Raja Singh, armed with kulhar is (axes), Phool Singh son of Hira Singh armed with ballam (spear), Naib Singh son of Kamta Singh and Barey Lal son of Dhani Ram armed willipharsa (spade) and Man Singh son of Shiv Ratan Singh armed with a gun surrounded him in his field itself and finished him by the assault with gun, spear and axes and made good their escape. The incident had been seen by Gulab Singh, P. W. 3, Rupan Singh, P. W. 4 and Santosh Singh son of Maheshwari Din Singh who was not examined. ( 3 ) THE investigation of the case was taken up by the Station House Officer Rajendra Singh, P. W. 6. From his deposition it follows that the first information report had been lodged in his presence. He proceeded to the scene of occurrence, where he reached at 12. 30 P. M. His first act was to prepare the inquest report, Ex. Ka-6. He thereafter scribed documents relating to the post mortem examination including the diagram of the dead body, Ex. Ka-7 and its challan, Ex, Ka-8 and examined the informant Veer Singh and the witnesses Golab Singh and Roopan Singh after dispatching the body of the deceased for post mortem, examinations. He claimed to have prepared the site plan containing necessary details with the help of the above witnesses. He affirmed on oath that he had found the pant of the deceased, his pair to chappals and Iota which are the material Exs, I, II and III respectively and prepared the recovery memo, Ex. Ka- 10 in respect of them. He also stated to have collected blood stained and plain earth and prepared the recovery memo Ex. Ka-11. The appellants were pointed to have surrendered in the court of the Chief Judicial Magistrate on 23-11-1979 after interrogating him on 14-12-1979 he submitted the charge-sheet, Ex. Ka-12 on the same day. In his cross-examination he proved the contradictions between the statements of the prosecution witnesses Veer Singh, P. W, 1 Gulab Singh, P. W. 3 and Roopan Singh, P. W. 4 given before him under Section 161 of the Code of Criminal Procedure and their statements before the trial court. He could not tell the length and breadth of the Kachwara filed of the deceased wherein the incident took place. He pointed out that Jwar crop therein at places was small and at places big and volunteered that the field had many footpaths. He could not tell the length and breadth of the Kachwara filed of the deceased wherein the incident took place. He pointed out that Jwar crop therein at places was small and at places big and volunteered that the field had many footpaths. He had to concede that in the site pian he had not shown the directions correctly and where it was written north, he should have written east, where it was written south, he should have written west and where it was written west, he should have written north and that he came to know of the mistake committed by him only that very day. The accused, he clarified, had come from the northern side and not from the north western side as shown in the site plan. He was asked whether he made enquiry about Maya with whom the deceased was suggested in the cross-examination of the witnesses to be having illicit relationship. He denied to have found facts relating to the suggestions. He merely conceded so far as Man Singh was concerned that the name of his father was recorded over the land about which he was stated to be in illegal occupation. The site plan, Ex. Ka-9, shows that Dash rath had been assaulted not so close to the mounds as to the passage. ( 4 ) THE post-mortem examinations of the deceased Prahlad Singh had been conducted at 12. 45 P. M. on 20/11/1979 by Dr. V. N. Mehrotra, P. W. 2. He found following anti-mortem injuries on his person: ante mortem Injuries:1. incised wound 2 cm. x. 1 cm. x bone deep (brain deep) on left side of head over parietal region of head, transversely placed to skull and situated 2. 5 cm. above the left ear. Bone is sharply cut under the wound. 2. Incised wound 6. 5 cm. x. 2 cm. x bone deep on the Lt. side of face between Lt. eye and ear, transversely placed to the face, wound is cut from above downwards. Bone is out 3. Punctured wound 2 cm. x. 0. 5 x 5 cm. deep on Lt. side of face, 5 cms. away from the middle of chin. Mendible is broken under the wound direction of the wound is from left to Rt. 4. Incised wound 10 cm. x. 0. 5 cm. x. skin on left side of neck in the middle part, transversely placed. x. 0. 5 x 5 cm. deep on Lt. side of face, 5 cms. away from the middle of chin. Mendible is broken under the wound direction of the wound is from left to Rt. 4. Incised wound 10 cm. x. 0. 5 cm. x. skin on left side of neck in the middle part, transversely placed. ( 5 ) THEREAT eight incised wounds on Lt. side of neck below wound No. 4 all placed transversely measuring 2 cm. x 5 cm. x 0. 5 cm. x skin deep. They all are extending from neck to above portion of chest. ( 6 ) INCISED wound 7 cm. x 1/2 cm. x skin deep, Transversely placed over the upper portion of Lt. arm and outer side. TI ( 7 ) PUNCTURED wound quadrangular in shape, each side measuring 1/2 cm. X abdominal cavity deep at the level 9th cestral cartilage on Lt side of abdomen. ( 8 ) GUN shot wound of Entry 1. 5 cm. x 1. 5 cm. circular in shape on Lt. side of back, 9 cm. from the midline of back between 8th and 9th rib. Blackening Tattooing present around the Inter costal space behind on left side perforated. Internal Examination:left parietal bone and membrances cut under injury no. 1 Brain cut under injury no. 1. Thorax Left lung lacerated on inner side. Left chest cavity contains one paint of blood. Pericardium perforated at 7 places. Heart perforated at 7 places. One wadding material found in left ventricle. Heart completely lacerated. Seven rounded shots removed from beneath the skin, over sternal region Disphragm perforated below heart. Right 3rd and 4th intercostal space perforated. Abdomen Walls perforated on left side. Peritoneum perforated on left side. Teeth 16/16. Stomach empty. Small intestine contains pasty food and gases. Large intestines pelvis colon and colon loaded with faecal Liver Left margin lacerated. weight 2 i. b. G. B. full. Spleen perforated weight 4 oz. Both kidneys weight 7 oz. Bladder contains urine. The external examination revealed that the faecal matter was coming out of the anus. The death of Prahlad Singh was pointed to have been caused as a result of shock and haemorrhage on account of the gun short injury. weight 2 i. b. G. B. full. Spleen perforated weight 4 oz. Both kidneys weight 7 oz. Bladder contains urine. The external examination revealed that the faecal matter was coming out of the anus. The death of Prahlad Singh was pointed to have been caused as a result of shock and haemorrhage on account of the gun short injury. In connection with the investigation of the case, the clothes found on the person of the deceased and also the blood stained earth taken from the scene of the occurrence had been sent to the chemical examiner and Serologist for report The reports are Exs. Ka-15 and Ka-16 on record. Kurta, Baniyan and Underwear were found to be smeared with human blood whereas the earth was only pointed to have blood. ( 9 ) THE prosecution examined the informant Veer Singh, P. W. 1, Gulab Singh, P. W. 3 and Roopan Singh, P. W. 4 as witnesses of the occurrence. Veer Singh, P. W. 1, in the first information report, Ex. Ka- 3, had not clearly stated that he had himself seen the occurrence. He merely had alleged that Gulab Singh, Roopan Singh and Santosh Singh had seen the occurrence. He did riot indicate as to how they happened to reach there and how he too was near that place. In the first information report Prahlad Singh was shown to have been assaulted inside his field at 7. 00 A. M. when he was returning. The first information report is silent on the point as to who had assaulted first and what was the position of the body of Prahlad Singh when the assaults with the different weapons were made. The weapons of the assault were described therein but mention was not made about spear. The, accused in the first information report were not shown to have been challenged by anyone of the three witnesses examined. The first information report also does not indicate as to how Phool Singh, Man Singh, Barey Lal and Naib Singh made a common cause with Ram Pal Singh, Roshan Singh, Drig Vijai Singh, the elder brother of Ram Lakhan. The sole cause of the crime in question was said to be the quarrel between the younger brothers of Ram Pal Singh,roshan Singh and Drig Vijai Singh and the younger brother of the deceased Prahiad Singh which Prahiad Singh wanted to be settled amicably. The sole cause of the crime in question was said to be the quarrel between the younger brothers of Ram Pal Singh,roshan Singh and Drig Vijai Singh and the younger brother of the deceased Prahiad Singh which Prahiad Singh wanted to be settled amicably. ( 10 ) THE prosecution witness Veer Singh in his statement gave out that the accused Phool Singh and Man Singh were related to Ram Pal Singh, Roshan Singh and Drig Vijai Singh and Naib Singh and Barey Lal were their party men. Naib Singh was further pointed to be inimical to Prahlad Singh as he in the Panchayat of the village impressed upon others that no one should help his brother with money or provide him any help whatsoever as he had been agonising all. Man Singh was stated to be opposed to Prahlad Singh as the latter in another Panchayat had demanded that Man Singh should vacate 4 bighas of land in his favour as he had not been paying its rent to him. The motive for the crime was thus broadened by Veer Singh in his statement. He tried to show that he and his uncle Bhuvan Singh and Santosh Singh saw the incident as they were going to ease themselves and Gulab Singh witnessed it as he had been returning after attending to the call of nature. Prahlad Singh was pointed to have been shot at while tying the strings of his underwear, and not while returning to his house. Man Singh he gave out had first fired and the other accused had assaulted him later. He also alleged to have challenged the accused before they dispersed. In his cross-exam ination he gave out that the accused had come from the side of the mounds in the north. He contradicted the statement of the Investigating Officer that he had prepared the site plan with his help. He denied that he had shown the site plan to him. He could not tell as to why he did not mention in the first information report that Prahlad Singh had been shot at while tying the strings of his, underwear. He pleaded ignorance about the facts that his father who was a Pradhan had given the Gaon Samaj land to the witnesses Gulab Singh, P. W. 3 and Roopan Singh, P. W. 4. He pleaded ignorance about the facts that his father who was a Pradhan had given the Gaon Samaj land to the witnesses Gulab Singh, P. W. 3 and Roopan Singh, P. W. 4. He gave out as against the statement of the Investigating Officer that the name of Santosh Singh was recorded over the land which Man Singh had been claiming to be his. He admitted that there was a prostitute named Maya aged 17 years but denied that his brother Prahlad Singh deceased had been visiting her or that Drig Vijai Singh and Bharat Singh had prevented Prahlad Singh from carrying on with Maya and that he was murdered on account of his relationship with her. Gulab Singh, P. W. 3, gave out that the accused had come from the mounds on the northern side. He was returning after easing himself. The accused gave a larkar that Prahlad Singh should not escape. He was tying the strings of his underwear, Man Singh shot at him from a very close range. The other accused assaulted him with their weapons. He also challenged the accused and proceeded towards them. In this cross-examination, he gave out that he could not say whether the Investigating Officer had drawn the site plan according to his statement or not for he had not shown the same to him. The witness Roopan Singh, P. W. 4, was admitted to be his relative as his wife was the sister of Roopan s wife. He had knowledge that Sughar Singh, the father of the deceased had given Gaon Samaj land to him on patta. He also owned that this house was built on land which he had not taken from anyone. He expressed his inability to say whether Prahlad Singh had eased himself or not before he was shot at He refuted his statement given to the Investigating Officer that Prahlad Singh had been shot at while he was returning home after easing himself. He could not tell as to why the Investigating Officer had not recorded his statement that Prahlad Singh had been fired upon while he was tying the strings of his underwear. He could not tell as to why the Investigating Officer had not recorded his statement that Prahlad Singh had been fired upon while he was tying the strings of his underwear. He also did not admit that he had told the Investigating Officer that Roopan Singh, Santosh Singh and the brother of Prahlad Singh arrived while the accused were assaulting Prahlad Singh and that he and they also for fear of the accused had fled away and that while fleeing Veer Singh, P. W. 1 was weeping and crying. The distance of the mounds from which side the accused had come, had been given out by him to be 30 to 40 steps. The face of Prahlad Singh was pointed to be towards west at the time when he was shot He denied the suggestion that Prahlad Singh had been murdered because, of his illicit relationship with Maya whom he know. Roopan Singh, P. W. 4, deposed that the accused had come from the northern side. They gave a lalkar that Prahlad Singh be killed. He was shot at while tying string of his underwear. In the cross-examination he admitted that the father of the deceased had given him 5 acres of land on lease and that his house was built upon Gaon Samaj Land regarding which there had been litigation with the State. Gulab Singh was his relative as the wife of his brother Kallu Singh, was the sister of the wife of Gulab Singh. Kamla the daughter of Ram Singh was known to him. She became a widow. He could not say whether Bharat Singh, the brother of Naib Singh accused had arranged her elopement with Zinda. Prah lad Singh had no connection with Maya. It was wrong to say that he had been done to death by some other lover of Maya. When Prahlad Singh had been shot at his face was towards north. The accused had come from the side of the mounds giving lalkar Prahlad Singh was at a distance of two steps from the mounds. He had been tying the strings of his underwear. ( 11 ) THE accused had pleaded not guilty. They did not lend any oral evidence in defence. ( 12 ) THE counsel for the appellants argued that hardly any motive for the crime had been alleged in the first information report. He had been tying the strings of his underwear. ( 11 ) THE accused had pleaded not guilty. They did not lend any oral evidence in defence. ( 12 ) THE counsel for the appellants argued that hardly any motive for the crime had been alleged in the first information report. The quarrel which had taken place on 14-11-1979 was not between the deceased and Ram Lakhan. There is no such allegation in the first information report, that Prahlad Singh while trying to bring about cool between his family members and those of Raja Singh, the father of the appellants Ram Pal Singh, Roshan Singh and Drig Vijai Singh had said some unpleasent words of by his conduct caused annoyance to them. It sounds very unnatural that Prahlad Singh would have been shot when he was for cordial relationship between the two families. The Investigating Officer in his statement had given out that he had examined the papers in respect of the land about which there was a dispute between Man Singh on the one side and Prahlad Singh deceased on the other and he found that the father of Man Singh was recorded in possession in the Khasri and Khatauni. Veer Singh, P. W. 1, in his deposition admitted that Man Singh was in occupation of the land which was claimed by Prahlad Singh. The evidence on record thus shows that Man Singh who was alleged to be armed with gun was not asserting his right without basis. The informant and Prahlad Singh on the other hand appear to have been making unreasonable demand. The counsel for the appellants justifiably stressed that the prosecution evidence had to be viewed with great caution for the informant had a motive for false implication of Mail Singh which at the time of the lodging of the first information report had been concealed. The prosecution did not lead evidence to show as to how Phool Singh and Man Singh were related to the appellants Ram Pal Singh, Roshan Singh and Drig Vijai Singh. The appellants, Phool Singh, and Man Singh denied that they were related to Ram Pal Singh, Roshan Singh and Drig Vijai Singh. The prosecution did not lead evidence to show as to how Phool Singh and Man Singh were related to the appellants Ram Pal Singh, Roshan Singh and Drig Vijai Singh. The appellants, Phool Singh, and Man Singh denied that they were related to Ram Pal Singh, Roshan Singh and Drig Vijai Singh. We cannot, in the absence of satisfactory evidence, hold that Phool Singh and Man Singh, Naib Singh and Barey Lal could join hands with Ram Pal Singh, Roshan Singh and Drig Vijai Singh because of any common interest The alleged motive for the crime, is so very weak that was reject it as having led the accused to commit the crime in question. 9. It next is to be seen as to whether Veer Singh, P. W. 1, Gulab Singh, P. W. 3 and Roopan Singh, P. W. 4 could beheld to be witnesses of the occurrence. We have already pointed above that in the first information report it has been nowhere asserted that Veer Singh while going to ease himself had seen the incident. This certainly is not an insignificant omission. Besides if he would have given an occular account he would not have alleged in the first information report that Prahlad Singh had been shot at while he was returning after attending to the call of nature. Veer Singh in his statement in the trial court tried to show that Prahlad Singh while tying strings of his underwear had been fire upon. This statement of Veer Singh and also those of Gulab Singh, P. W. 3 and Roopan Singh, P. W. 4 was said to have been given to bring the oral evidence in consonance with the postmortem report which was not available at the time when the first information report was lodged. ( 13 ) DR. V. N. Mehrotra, P. W. 2 in the postmortem report had mentioned that he had seen faucal matter coming out of anus of the, deceased Prahlad Singh. He had also found urine in his bladder. The small intestines of his had been noted to contain past food and gases. On the basis of the condition of the small and large intestines Dr. Mehrotra Pointed in his statement that Prahlad Singh had not evacuated faecal matter before his death. He had also found urine in his bladder. The small intestines of his had been noted to contain past food and gases. On the basis of the condition of the small and large intestines Dr. Mehrotra Pointed in his statement that Prahlad Singh had not evacuated faecal matter before his death. The Investigating Officer did not state that while preparing the inquest report he found strings of the underwear of the deceased Prahlad Singh to be loose or untied. If the assailants would have given a Lalkar to him from near the mounds, he would not have been in the parrot like posture at the time when he was shot at. If he would have earlier evacuated faecal matter, his bladder was not likely to contain urine. It appears that before he could evacuate faecal matter the assailants managed to reach and as he stood he was fired upon and it was for this reason that his pant chappal and Iota were found lying nearby his dead body. The earlier part of the first information report gives details about the quarrel of 14th November, 1979 and the efforts made by Prahiad Singh after his arrival in the village on 17-11-1979. The informant, it was argued by the counsel for the appellants, would certainly have not loosely described the incident by averring that the deceased was returning after easing himself if he would have seen his sitting to attend to, the call of nature and then seen him standing up in a state of perplexity after finding himself surrounded by his assailants. If Veer Singh, P. W. 1 Gulab Singh, P. W. 3 and Roopan Singh, P. W. 4 would have been really witnesses of the occurrence, they would have also seen Prahlad Singh going to ease himself for the incident took place hardly after he had taken of his trousers. The post-mortem report shows that all the injuries caused to Prahlad Singh by the sharp edged pointed weapon were on the left side of his body. On the neck there were nine incised wounds, eight were at one place and one in the middle. This shows that there had been an effort even to sever the neck from the rest of the body. Veer Sing Gulab Singh and Roopan Singh, P. W. 4 all state that they had challenged the accused and thereupon they fled away. On the neck there were nine incised wounds, eight were at one place and one in the middle. This shows that there had been an effort even to sever the neck from the rest of the body. Veer Sing Gulab Singh and Roopan Singh, P. W. 4 all state that they had challenged the accused and thereupon they fled away. Had they really Challenged, the assailants would not have inflicted the injuries with ease with which they caused the same. The version with regard to challenge is not to be found in the statement of the witnesses under Section 161 Cr. P. C. On the other hand their Statement under Section 161 Cr. P. C. shows them to have fled away for fear of being assaulted. We are unable to hold that the Investigating Officer had attributed Statements to Veer Singh, P. W. 1, Gulab Singh, P. W. 3 and Roopan Singh, P. W. 4 which they had not made to him. The braveness which Veer Singh, P. W. 1, Gulab Singh, P. W. 3 and Roopan Singh P. W. 4 stated to have shown in challenging the assailants, makes their testimoney all the more unworthy of credit. Their statements with regard to the manner of assault is confirmed only to this such that the fire arm injury of Prahlad Singh had been caused first in point of time. This Statement about which also there is no specific mention in the first information report could have been given on the basis of the irresistible conclusion that follows in this respect from the post mortem report. The prosecution witnesses Veer Singh P. W. 1, Gulab Singh, P. W. 3 and Roopan Singh, P. W. 4 on the basis of the above Statement of theirs, however, cannot be held to have seen the incident when we find Gulab Singh, P. W. 3 even expressing inability to say whether Prahlad Singh had evacuated faecal, matter or not Besides, we find Roopan Singh, P. W. 4, giving out that the face of Prahlad Singh was towards north from which side the assailants had approached him, If it had been so, Prahlad Singh could not have been shot at in the back while he was pointed to be tying strings of his underwear. Prahlad Singh after having been shot at by the gun appears to have fallen dead with his left side upwards. Prahlad Singh after having been shot at by the gun appears to have fallen dead with his left side upwards. In such a situation, there was no question of his having been surrounded by the remaining accused and assaulted as is the averment in the first information report. Had the description in the first information report been correct, the allegations should have been that after Prahlad Singh had been shot at, he fell down and thereafter he was assaulted by other weapons. The eight incised injuries of Prahlad Singh at almost the same place within a distance of 5 cms. and yet another incised injury 10 cms. x 1/2cm. on the left side neck perhaps had not been caused simultaneously. The punctured wounds, it was also very likely had been caused by two different kinds of spear although the accused Phool Singh alone was said to be armed with that weapon and that too was not pointed to have been used in the first information report. We so feel because the injury no. 7 was of quadrangular shape and measured 1/2 cm. on each side whereas the injury no. 3 measured 2 cm. on the one side and 1/2cm. on the other. It cannot be also lost sight of that Veer Singh, P. W. 1 in the first information report while describing the weapons used did not State about the Spear having been employed. ( 14 ) THE accused suggested that Prahlad Singh had been murdered because of his intimacy with Maya. The fact that she was a prostitute was admitted to Veer Singh P. W. 1. He pointed that she had been abducted by Bharat Singh and the police after recovering her had given her into the custody of Ram Bali. Gulab Singh P. W. 3 also stated that she was living presently with Ram Bali Singh. The Investigating Officer admitted that he did not enquire about the relationship of Prahlad Singh and Maya. The appellants did not lead oral evidence to prove that Prahlad Singh had been taking interest in Maya. In the absence of sufficient evidence on bare suggestion of the accused, it could not be so held, but at the same time it could not also be held that he had been done to death for the. reasons alleged by the prosecution and the appellants had done so. ( 15 ) THE appeal is allowed. In the absence of sufficient evidence on bare suggestion of the accused, it could not be so held, but at the same time it could not also be held that he had been done to death for the. reasons alleged by the prosecution and the appellants had done so. ( 15 ) THE appeal is allowed. The judgment and order of Sri H. C. Shukla, V. Addi. Sessions Judge, Hamirpur dated 16/1/1981 convicting the appellants under Section 302 read with Section 149 I. P. C. and Section 148 I. P. C. and sentencing each of them to imprisonment for life on the first count and to two years R. I. on the second are set aside. The appellants are acquitted of the above charges. They are on bail. They need not surrender to their bail bonds which are discharged .