K. NARAYAN, J. ( 1 ) THIS appeal is directed against the judgment and order dated 5-12-1978 delivered by Sessions Judge, Moradabed in S. T. No. 369 of 1978 convicting the accused appellant of the offence under section 302, I. P. C. and sentencing him to imprisonment for life. By the some judgment and order another accused Mohamed Akhleem was acquitted of the charges under sections 302/34, I. P. C. ( 2 ) WE have gone through the record of the case and also heard the learned counsel for the appellant and the State. ( 3 ) THE prosecution story as set up in the First Information Report Ex. Ka-1 was that the deceased Habib Husan was the brother of the informant Amir Husan. On the day of incident, that is, 16-2-1978, Habib Husan had gone to get bandage at about 4 P. M. to a local doctor. A little later Dilshad came with the bicycle of the deceased Habib Husan and still after some time Kasim accused appellant came with his bicycle, with Habib Husan sitting on the carrier. Amir Husan asked them as to where they were going and was told that they were to come back very soon and went away towards Rasulpur. Amir Husan at that time was collecting Barsim from a field near his grove where Jalik and Som Pal had also come. At about 5. 45 P. M. Kasim with Habib Husan came on a bicycle from towards Rasulpur. Just behind them, on another bicycle was Mohd. Akhleem when they all reached near the field of Govind, Kasim stopped the bicycle and both of them got down. Mohd. Akhleem also got down and put his bicycle on the stand. Thereafter Mohd. Akhleem, and Kasim grappled with Habib Husan, Jal in hand Som Pal rushed towards them to intervene but in the mean time when they were still some 8 to 10 steps away, Akhleem held Habib Husan and Kasim gave knife blows making Habib Husan fall then and there. The two accused took bicycle and escaped. However, Mohd. Jan and Ali Mohd. who had also arrived at the spot chased and they caught hold of Kasim near the railway line. Kasim was taken to the police station when the report was lodged. ( 4 ) HABIB Husan died of the injuries. The two accused took bicycle and escaped. However, Mohd. Jan and Ali Mohd. who had also arrived at the spot chased and they caught hold of Kasim near the railway line. Kasim was taken to the police station when the report was lodged. ( 4 ) HABIB Husan died of the injuries. The post mortem examination upon the body of Habib Husan was conducted by Dr. Dinesh Mohan, who found an incised wound 3 cm x 1 cm chest cavity deep over left side of front of chest 3 cm above left nipple and 3 cm lateral to mid line. 5th rib under the injury was fractured and heart was also cut. The reason for death, in the opinion of Doctor, Dinesh Mohan was shock and haemorrhage, as a result of injuries. ( 5 ) IN the circumstances, there can be no doubt that Habib Husen died on account of incised wound. The material aspect that remains to be seen is whether the State could successfully prove that the injury was caused by accused appellant or even the occurrence had taken place as contended by the prosecution. ( 6 ) THE prosecution had examined P. W. 1 Amir Husan, P. W. 2 Dilshad, P. W. 3 Dr. Dinesh Mohan, P. W. 4 Ali Mohammad; P. W. 5 Scm Pal, P. W. 6 Chhotey Shah, P. W. 7 Mohd. Jan, P. W. 8 Bhim Singh, P. W. 9, Ramesh Chandra and P. W. 10 Ved Pal Singh. Out of these; P. W. 3 Dr. Dinesh Mohair had conducted the post mortem examination P. W. 8, Bhim Singh was Bead constable of police, who had recorded the First Information Report on the diction of Amir Husan, P. W. 9 Ramesh Chandra had accompanied the body of the deceased and identified the same before the Medical Officer and P. W. 10 Ved Pal Singh was the Sub Inspector of Police who had investigated the Case. The evidence of occurrence was expected from P. W. I Amir Husan whose statement, we shall consider below. The other witnesses examined on the matter of occurrence are P. W. 2 Dilshad, P. W. 4 Ali Mohammad, P. W. 5 Sompal, P. W. 6 Chhotey and P. W. 7 Mohd. Jan. None of them had supported the prosecution story. The evidence of occurrence was expected from P. W. I Amir Husan whose statement, we shall consider below. The other witnesses examined on the matter of occurrence are P. W. 2 Dilshad, P. W. 4 Ali Mohammad, P. W. 5 Sompal, P. W. 6 Chhotey and P. W. 7 Mohd. Jan. None of them had supported the prosecution story. They were declared hostile but despite leading questions, nothing material was stated by them and the questions challenging their testimony by way of reference to the statements recorded under section 161, Cr. P. C. simply show that even the prosecution had branded them as hers, and their evidence, therefore, is of no consequence or value. ( 7 ) THE statement of P. W. 1 Amir Husan also does not inspire confidence. He is brother of the deceased, no doubt, but where was the occasion of mentioning various factors as to how the deceased had gone for getting bandaged at about 4 P. M; Those facts were not material and could be ignored. There was not a word any where as to what was the reason behind the so called murder. The deceased and the assailants had gone together. Till the moment the two, namely, Kasim and Habib Husan got down from the bicycle, they were moving on the same bicycle. H9w it so happened that all of a sudden not only two but also third Akhleem got down and two persons sitting in two different bicycles decided to assault Habib Husan to the extent that he died almost instantaneously. In case the theory of prosecution was correct, Kasim too must have received some injury during the scuffle, as Habib Husan would have made some effort to save himself. Even there is a contention in the First Information Report that there has been a scuffle. There is noevidence of injury upon Kasim through he is said to have been arrested immediately and this is not consistent with the theory of prosecution. It is too improbable that for any reason that the assailants and the deceased would keep on moving till they reached near the field of P. W. 1 Amir Husan so that he may be a witness to the occurrence itself. ( 8 ) THE suggestion that Kasim and Akhleem had ran away from the spot and then Kasim was chased and arrested also does not stand to test of credibility. ( 8 ) THE suggestion that Kasim and Akhleem had ran away from the spot and then Kasim was chased and arrested also does not stand to test of credibility. Accordingly to the prosecution contention, Kasim had picked the bicycle. There is nothing to show or suggest that he had fallen and then held by the witnesses. If he was running on a bicycle, the pedestrians could not have caught him unless they were Milkha Singh. ( 9 ) APART from the above factors, a similar fact that Akhleem had already been given benefit of doubt, creates a doubt about the occurrence as well, which could have happened only when the man was held by some body else, that some body else having been left out, the possibility of injury being caused by this fellow is also rendered too doubtful if not totally negatived. The sole witness having been disbelieved in respect of one could not have been taken into account and give enough weight to record a conviction when the theory itself was not plausible. ( 10 ) IN the result this appeal should succeed. ( 11 ) THE appeal is allowed. The conviction and sentence recorded by the learned sessions Judge are hereby set aside. The appellant shall stand acquitted of the charge against him. He is on bail. He need not surrender. His bail and bonds are cancelled and sureties discharged. Appeal allowed. .