JUDGMENT K.M. Pande, J. - This appeal has been preferred by the accusedappellants against their conviction and sentence recorded by Sri V.S. Agarwal, 2nd Addl. District and Sessions Judge, Badaun in Sessions Trial No. 323 of 1976. 2.The appellants were charged under Section 302/34, 307/34 and 364 of the Indian Penal Code. The learned Sessions Judge has recorded their conviction under Section 304 Part II of the Indian Penal Code and has sentenced the accused persons to five years' rigorous imprisonment, under Sections 323/34, KP.C. to one year's rigorous imprisonment in place of Section 307/34, I.P.C. and also convicted and sentenced them under Section 364, I.P.C. to three years' rigorous imprisonment. Aggrieved by the aforesaid conviction and sentence the present appeal has been preferred. 3.The brief history of the prosecution case is as under: One Smt. Sundari, widow of Pyare Lal, lived in village Karyamini, her husband had died four years back leaving her as his widow and two daughters, viz. Smt. Ramshri and Premwati. The two were given 15 bighas of land each by their father Pyare Lal. Besides the two daughters Pyare Lal had no male child. 4.Smt. Ramshri was living with her mother. It is alleged that Bhup Singh, the fatherinlaw of Smt. Premwati, wanted to take the whole of the landed property left by Pyare Lal and for that end in view he wanted to eliminate Smt. Ramshri. The prosecution case is that to achieve this objections the date of occurrence i.e. in between the night 12/13th January, 1975 he along with Komal Singh and two others entered the residential house of Smt. Sundari. The two inmates, Smt. Sundari and her daughter Smt. Ramshri woke up. Komal Singh had Danda, Bhoop Singh had an iron rod and the accused persons forced their entry into the room of Smt. Ramshri and they forcibly separated her from her mother Sundari whom she had caught hold on account of fear. At the instigation of Bhoop Singh, it is said, Komal Singh gave a blow with the iron rod on the head of Smt. Ramshri and she succumbed to her injury on the spot". The drama did not end here. It is said that Komal Singh, in order to grab the property of Smt. Sundari, obtained her thumb impression on blank papers. It may be pointed our here that Bhoop Singh is the fatherinlaw of Smt.Premwati. i.e. Samdhi of Sundari. The drama did not end here. It is said that Komal Singh, in order to grab the property of Smt. Sundari, obtained her thumb impression on blank papers. It may be pointed our here that Bhoop Singh is the fatherinlaw of Smt.Premwati. i.e. Samdhi of Sundari. Both of them are alleged to have runaway toards south along With the child of Smt. Ramshri. 5.The first information report was lodged by Smt. Sundari the next morning i.e. on 13.1.75 at the Police Station Zarif Nagar, (Ext. Ka 2). A case was registered after investigation. The two accused were sent up for trial and the case ended in their conviction and sentence as stated earlier. 6.The prosecution has examined three eyewitnesses, viz. Darshan Lal, Raja Ram and Smt. Sundari as P.Ws 1, 2 and 4 respectively. The doctors who conducted the postmortem examination of the person of Smt Ramshri and who had examined the injury on the person of Smt. Sundari have also been examined as P.Ws 3 and 6 respectively. The Hawaldar. P.W. 1 recorded the First Information Report and prepared the general diary. Ratai Prakash Sharma is the Investigating Officer. 7. In appeal it was argued before this court that the prosecution has failed to establish its case beyond reasonable doubt and the court below committed an error in relying on the testimony of a hostile witness and who according to the trial court itself, was a partly reliable witness. The learned trial court has taken the assistance from the statement of another eyewitness whose testimony has also been discarded by the Sessions Judge and with the assistance of the statements of these two witnesses he has tried to establish the whole case. This court will examine the statements of the complainant and the two other witnesses on whose shoulder the entire case has been built up. Smt. Sundari (P.W. 4) has stated that her husband died four years' back leaving two daughters, viz. Smt. Ramshri and Smt.Premwati. Smt. Ramshri was married to one Gol Singh and Smt. Premwati to one Bhagwan Singh. The accused Bhoop Singh is the father of Bhagwan Singh, married to Smt. Premwati. Komal Singh accused is also a resident of the same village. Since P.W. 4 had no male issue. Her husband transferred 15 bighas of land to the two daughters qnd still 50 bighas of land was left with them. The accused Bhoop Singh is the father of Bhagwan Singh, married to Smt. Premwati. Komal Singh accused is also a resident of the same village. Since P.W. 4 had no male issue. Her husband transferred 15 bighas of land to the two daughters qnd still 50 bighas of land was left with them. She had an intention to divide and transfer this land also equally in favour of her two daughters. Smt. Ramshri used to reside with her mother. Although the prosecution case is that Bhoop Singh had an evil eye on the entire property of 50 bighas but this witness says that Bhoop Singh never told her to transfer the land in her favour. Thus whatever might have been the intention of Bhoop Singh it was kept to himself and he never came out with a suggestion to Smt. Sundari that she should transfer the entire land in his favour. If this was so then how can it be said that all of a sudden one night he managed to eliminate Smt. Ramshri from the scene in order to grab her share of the property. The theory that Bhoop Singh obtained the thumb impression of Smt.Sundari on three or four blank papers has also not been substantiated by the subsequent development. The three blank papers were never recovered from the possession of the accused persons. As Bhoop Singh had never disclosed his intention of usurping or getting transfer of the land and she never at any point of time, refused to transfer this land and in any case fifty per cent of the land was to be received by Smt. Premwati there was no necessity for Bhoop Singh to obtain a forged document. It has also to be kept in mind that there was no immediate provocation for committing this crime by the accused persons. It has also not been suggested that on the day of occurrence any request for the transfer of the land was made to Smt. Sundari and she expressed her displeasure which can be said to have prompted the accused persons for committing this crime. It has to be kept in mind that Smt Ramshri was living with her mother from before. There is no suggestion that she also wanted to resist the transfer, if any, of the land in favour of her or her sister. 8. It has to be kept in mind that Smt Ramshri was living with her mother from before. There is no suggestion that she also wanted to resist the transfer, if any, of the land in favour of her or her sister. 8. In the statement of P.W. 4 it has been said that Bhoop Singh gave a fatal blow to Smt. Ramshri at the instance of Komal Singh but this is contradicted by the F.I.R. version. In the F.I.R. she has said that it was Komal Singh who had hit Smt.Ramshri with the iron rod. This cannot be the statement of the mother of the daughter who had died if she had witnessed the occurrence. This statement creates doubt in the entire prosecution structure. This witness by her statement weakens the first information report. In paragraph 18 of the statement she has stated that she had narrated the entire incident to the village Chaukidar and it is the village Chaukidar who got lodged the first information report. The first information report is not a written report but it bears the thumb impression of P.W. 5. If the F.I.R. was lodged by the village Chaukidar then there was no occasion for the presence of the thumb impression of this lady on it. It is obvious that there is some wrong some where. The first ' information report shows that she had gone to the Police Station to lodge the first information report along with the village Chaukidar but the statement given by her suggests that she had narrated the entire story to the village Chaukidar and the village Chaukidar in his turn had lodged the first information report at the Police Station. It can be said, therefore, that the first information report was the mental act of P.W. 4 herself. The matter do not end here. She has positively stated in paragraph 18 of her statement that the village chaukidar had obtained her thumb impression on the report as she was unconscious and she regained consciousness in the hospital. Not only this but she also went to the extent of saying that she had implicated Bhoop Singh out of enmity. The enmity suggested is that Bhoop Singh used to raise objection in the Biradari of Smt. Premwati to her mother's place. 9. Not only this but she also went to the extent of saying that she had implicated Bhoop Singh out of enmity. The enmity suggested is that Bhoop Singh used to raise objection in the Biradari of Smt. Premwati to her mother's place. 9. This statement of P.W. 4 naturally caused annoyance to the prosecution and she was subjected to crossexamination by the prosecution itself. It has been suggested to her in crossexamination by the prosecution that she had given this statement in order to protect Bhoop Singh. She has further stated that while dictating the first information report she was not well and she was not wholly conscious. This itself suggests the mental and physical condition of this lady at the time of lodging the first information report. She admits that Smt. Premwati is now residing with her and looking after her cultivation. Her husband Bhagwan Singh is also on visiting terms and stays five to ten days at her house at intervals. 10. The prosecution has relied upon the statements of P.W. 1 and P.W. 2 also. This court will take up the statement of P.W. 1 first. The residential house of P.W. 1 is at a considerable distance from the place of occurrence. In order to explain his presence at midnight on the place of occurrence he has said that he used to store the groundnuts at the house of one Deo Sukh. He heard an alarm in the night and was awakened. Nathoo and Raja Ram had also arrived with their torches. They saw the four accused persons conning out of the house of Smt. Sundari in their torch light. Two of them were unknown. Rest of the two viz. Komaf Singh and Bhoop Singh were known to him. He does not state to have seen any of the accused persons inflicting blows on the persons of Smt. Ramshri. His. part is only to the extent of seeing the two appellants coming out of the house of Smt. Sundari. Thus his statement at the best is in the nature of corroborative evidence. If the prosecution case Is, built on the basis of the statement of Smt. Sundari then only this witness can give any support to the prosecution case. As said earlier he is not an eye witness of the real crime being committed on the accused persons. Thus his statement at the best is in the nature of corroborative evidence. If the prosecution case Is, built on the basis of the statement of Smt. Sundari then only this witness can give any support to the prosecution case. As said earlier he is not an eye witness of the real crime being committed on the accused persons. He comes into picture at a later stage when the accused were coming out and walking away from the scene of occurrence. The explanation of his presence at the midnight offered by this witness is that he used to store ground nut at the house of Deo Singh but in paragraph 10 of his statement he states that in between the houses of Deo Singh and Sundari there are 150 to 200 houses. This means that it is not an adjacent house and if this witness could come after crossing about 200 houses then neighbourer's absence from the scene of occurrence create doubt in the story.The residents of these two hundred houses, in all probability, could have reached earlier than this witness. He does not know whether it was a moonlit night or a dark night. He had only seen Komal Singh coming out of the house of Sundari with a child. The rest of the accused had already gone away. He had not seen the faces of the remaining three accused. Here in his statement he says to have been Komal Singh with a child in his lap while he had stated otherwise before the Investigating Officer. There the child was alleged to have been in the arms of Bhoop Singh. This witness purchased land from Smt. Sundari subsequent to this occurrence and he has built house thereon 11. The other eye witness is P.W. 2 Raja Ram. He also states to have seen the convicted appellants emerging out of the house of Smt. Sundari in their torch light. Thus he also does not state about the real assailants who caused injury to the deceased. He further states that the accused persons were running away and he could not say who was armed with what weapon. According to him Gol Singh, the husband of the deceased, had also gone along with Smt. Sundari to lodge the first information report but this is not supported by the statement of the complainant P.W. 1 and the statement of P.W. 2. According to him Gol Singh, the husband of the deceased, had also gone along with Smt. Sundari to lodge the first information report but this is not supported by the statement of the complainant P.W. 1 and the statement of P.W. 2. He purchased the house of Smt. Sundari after this murder. There is force in the contention of the appellant's counsel that he is under the influence of Smt. Sundari P.W. 4. 12. From what has been discussed above the entire prosecution case does not inspire confidence. Except the statement of P.W. 4 there is none to say that any injury was inflicted by the two accused persons on the person of the deceased. Simply because the accused persons were seen emerging out of the house is not enough to sustain the conviction. That may be a strong circumstantial evidence but the statement of P.W. 4 itself is not inspiring confidence. 13. I need not discuss the medical evidence and the statement of other formal witnesses. It is a case where the prosecution has not been able to establish its case and could not be able to prove the case beyond reasonable doubt. 14. The result is that the appeal succeeds. The two appellants Bhoop Singh and Komal Singh are acquitted of the charges framed against them. They are on bail. They need not surrender and their bail bonds are cancelled and sureties are discharged.