H. C. MITTAL, J. ( 1 ) MOHAN has preferred this appeal from Jail against his conviction and sentence under Section 302/34 LP. C. to life imprisonment passed on 22:12. 1983 by Sri. S. B. L. Kackar, the then Sessions Judge, Saharanpur. ( 2 ) THE prosecution case in brief is that in the night between 26/27-11-1982 at about 2 P. M. in the first floor of Gaur Bhojnalaya situated at Upper Road Hardwar, P. W. 1 Om Prakash and Ashok Kumar, owners of the building and Bhojnalaya along with their servants deceased Mohan Lal and P. W. 3 Tej Bhadur Thapa, their two boy servants were sleeping. This appellant Mohan alongwith Dilip who was earlier an employee of Om Prakash at the Bhojnalaya and had been removed from service about 3-4 months prior to the incident, had entered the room after unbolting a window and attacked the deceased Mohan Lal with knives. On the cries of the deceased the witnesses got up and succeeded in apprehending the present appellant Mohan on the spot along with the blood - stained knife, while his companion Dilip managed to make good his escape. Mohan Lal injured was immediately sent to the hospital in a Car where his injuries were examined by P. W. 4 Dr. M. S. Kunwar at 2. 20. A. M. who noted the following two injuries, vide injury report (EX. Ka-3)1. Stabbed wound 2 cm x 0. 5 cm x 2. 5 cm deep on the left side chest, 16 cm below the left axilla, Surgical emphysema present around the wound. X-ray was advised and the wound was kept under observation. Bleeding was present. 2. Stabbed wound 2. 2 cm x 0. 5 x 3 cm deep, bleeding present on the back of left side, 12 cm below the left shoulder. The injury was kept under observation. ( 3 ) EX. KA-1 Written report of the occurrence was submitted at P. S. Hardwar at 3. 40 in the night; on the basis of which case was registered under Section 307/452 I. P. C. and 25, Arms Act. Investigation of the case was entrusted to S. I. Brijendra Singh (P. W. 6 ). On 30. 11. 1982 Mohanlal deceased died in the hospital. 40 in the night; on the basis of which case was registered under Section 307/452 I. P. C. and 25, Arms Act. Investigation of the case was entrusted to S. I. Brijendra Singh (P. W. 6 ). On 30. 11. 1982 Mohanlal deceased died in the hospital. Thereafter the case was converted under Section 302 from 307 I. P. C. The Investigating Officer after preparing inquest report sent the dead body for postmortem which was conducted by Dr. B. K. Jaju on 1-12-1982 at 10a. M. In the opinion of the Doctor, death was caused due to haemorrhage on account of the ante-mortem injuries. In the postmortem report no doubt six wounds were noted but it is clear that the four wounds would have been made while the deceased was operated upon for the treatment in the hospital. Dilip could not be apprehended, hence after completion of the investigation accused was charge sheeted and committed and tried under Section 302 I. P. C. ( 4 ) TO prove its case the prosecution in all examined ten witnesses, of whom two are the eye witnesses, P. W. I. Om Prakash is the owner of Gaur Bhojnalaya, the deceased was his employee. P. W. 3 Tej Bahadur Thapa is the other boy-servant of P. W. 1, P. W. 2 Dr. B. K. Jaju had done the postmortem. P. W. 4 Dr. M. S. Kunwar had examined the injuries of the deceased immediately after the occurrence at 2. 20 A. M, in the night. The remaining are formal witnesses. ( 5 ) THE version of the accused has been of false implication. He did not adduce any evidence in defence. The learned Sessions Judge had also made a local inspection of the scene of occurrence and after consideration of the, evidence on record he convicted and sentenced the appellant as above. ( 6 ) THIS appeal has been preferred from Jail and on behalf of the appellant it was strenuously urged that the prosecution evidence was highly suspicious particularly because the presence of P. W. 1 Om Prakash, the proprietor of the hotel, and first informant at that time in that room where the murder was committed was highly doubtful ( 7 ) WE need not discuss the prosecution evidence in detail as we are convinced that there is force in the contention made on behalf of the appellant. It is in evidence of the Investigating Officer that in the room in question he found only one cot on which the deceased was lying. There was no other cot. In his cross-examination, the Investigating Officer has further stated that in the site-plan he has shown that Ashok Kumar, Tej Bahadur and Mohanlal - deceased were sleeping on the ground of that room. ( 8 ) LEARNED Sessions Judge had also made an inspection of the scene of occurrence and in the, judgment he has himself observed that the size of the room being 12t x 10, four cots could not be laid therein and, therefore, it was difficult to believe that four cots of normal size were spread in the room in that night on which the witnesses and the deceased were sleeping. He has also been of the view that there was only one cot and the witnesses have tried to exaggerate that they all were sleeping on the separate cots. In that view of the circumstance it appears highly improbable that P. W. 1 Om Prakash and his brother Ashok Kumar were sleeping in that room on the floor while Mohan Lal (deceased) their servant was sleeping on the cot. P. W. I Om Prakash has admitted that the residential portion in which he and his brother. Ashok Kumar live is on the Second floor where their wives and children were sleeping. He did not even hesitate to lie that in that room in which the occurrence had taken place 7 to 8 cots could be laid. He further admitted that room was used for storing vegetables and utensils arid other things. It, therefore, appears highly improbable that Om Prakash and Ashok Kumar were sleeping in that room along with their two servants when their family members, wives and children were sleeping on the second floor. Even at the risk of repeatition we may again state that we, are convinced that both Om Prakash and Ashok Kumar would not have slept on the floor of the room where vegetables and utensils etc were lying, while their servant Muhanlal (deceased) was sleeping on a cot. Ashok Kumar, the other brother was not examined. The other eye-witness P. W. 3 Tej Bahadur was a lad of sixteen years as given by him in his statement recorded on 23. 9. 1983. The occurrence had taken place on 27. 11. 1982. Ashok Kumar, the other brother was not examined. The other eye-witness P. W. 3 Tej Bahadur was a lad of sixteen years as given by him in his statement recorded on 23. 9. 1983. The occurrence had taken place on 27. 11. 1982. Thus, at the time of the occurrence he was about fifteen years, while the age of the present appellant was about 18-19 years. He has also deposed that he was sleeping in that room along with Mohan Lal (Deceased), Om Prakash and Ashok Kumar owners of the hotel. In his cross-examination he stated that both Om Prakash and Ashok Kumar also used to sleep there daily, while Om Prakash in his cross-examination had stated that servants always used to sleep there and he himself used to sleep there only occasionally; that either he himself or his brother used to sleep in that room and some times both slept, in that room. Suggestion of the defence was that the occurrence had taken place on the ground floor which was used for hotel and where the servants used to sleep: From the statement of the Investigating Officer it is clear that he had not examined the cot on which the deceased was lying. In his cross-examination he further stated that in the site-plan he had shown the place where Om Prakash was sleeping and the places where Ashok Kumar, deceased Mohan Lal and witness Tej Bahadur were sleeping; that all the three, namely, Ashok Kumar, Mohan Lal (Deceased) and Tej Bahadur were sleeping on the floor of the room. It is not in evidence that any blood was recovered from where the deceased was attacked and remained alive till he was taken to the hospital. Considering the nature of his injuries profuse blood must have come out from his injuries and some blood must have fallen on the floor before he was taken to the hospital. These facts show that the defence suggestion has not been without any substance. ( 9 ) ADMITTEDLY neither Om Prakash nor Ashok Kumar nor Tej Bahadur had received any injury when they apprehended the appellant along with the knife. It also appears highly suspicious that they could have apprehended him in the manner as alleged without receiving any injury. These facts show that the defence suggestion has not been without any substance. ( 9 ) ADMITTEDLY neither Om Prakash nor Ashok Kumar nor Tej Bahadur had received any injury when they apprehended the appellant along with the knife. It also appears highly suspicious that they could have apprehended him in the manner as alleged without receiving any injury. Under normal circumstances such an assailant who did not hesitate to give fatal blows to the deceased would have also wielded blows with the knife and made every effort from being apprehended and in that skirmish in all reasonable probability either of the three must have received some knife injuries at the hands of the assailant. We therefore, also feel reluctant to believe the testimony of Om Prakash and P. W. 3 Tej Bahadur Thapa that the appellant was apprehended along with the blood - stained knife in the manner as alleged on the spot and our reluctance is further supported by the fact that presence of Om Prakash and Ashok Kumar at the place where the incident had taken place in the night has also been disbelieved by us. ( 10 ) THE conclusion, therefore, is that the eyewitness account of the occurrence and apprehension of the appellant is highly suspicious, hence the appeal is allowed. Conviction and sentence of the appellant under section 302 read with Section 34 I. P. C. to life imprisonment are hereby quashed. ( 11 ) HE shall be released forthwith, if not wanted for any other offence. Copy of the order be sent to the Sessions Judge, Saharanpur and the Superintendent of Jail concerned without any delay for compliance. Appeal allowed. .