JUDGMENT P.P. Gupta, J. - These are two connected criminal appeals filed by Ram Autar and Gaya Prasad against their conviction and sentence under Sections 302/147/149, I.P.C. passed by the IX Additional Sessions Judge, Kanpur on 15.1.79 in Sessions Trial No. 223 of 1977. 2. Alongwith these two appellants two other co-accused, namely, Gore Lal and Chhatra Pal were also tried but they were acquitted by the Trial Judge. 3. The prosecution case, in brief, it that deceased Chhedi Let was working in Railway as a Gangman and at the time of incident, was posted at Prernour Railway Station, District Kanpur. He was allotted a quarter there. In the night of 11/12th May, 1977, at about 12.30 p.m. when he was sleeping outside his quarter, the appellants Gaya Prasad Gangman, and Ram Autar Keyman, accompanied with 2 or 3 persons armed with Ballam and lathi arrived there from the north and suddenly over powered Chhedi Lal, Gaya Prasad started assaulting Chhedi Lal with his Ballam on his face. Baijnath, the maternal uncle of Chhedi Lal, who had come to see Chhedi Lal a day prior to the incident, was also lying near Chhedi Lal. Some other persons were also sleeping there. The appellants who were known to the informant Baijnath from before were identified by him in the flashing of torches of Indrasen and Thakur Chandrapal Singh who also arrived there. Meanwhile, the appellants and their associates managed to escape. 4. After informing the Station Master of the occurrence, Baijnath Singh lodged written report at P.S. Maharajpur, district Kanpur on 12.5.77. at 3.30 p.m. 5. The motive for the crime, as disclosed in the F.I.R., is that Chhedi Lal had found the wife of Gaya Prasad in a compromising position with the appellant Ram Avtar in his quarter on, account of which Gaya Prasad bore enmity with him. It was for this reason that both the appellants Gaya Prasad and Ram Avtar committed the murder of Chhedi La1 with the help of some hired persons. 6. The case was investigated by S.I. Girja Shanker Yadav, who came to the scene of occurrence, recorded the statement of informant Baijnath, completed other necessary formalities, sealed the body of Chhedi Lal, and thereafter sent it for postmortem examination which was conducted by Or. 6. The case was investigated by S.I. Girja Shanker Yadav, who came to the scene of occurrence, recorded the statement of informant Baijnath, completed other necessary formalities, sealed the body of Chhedi Lal, and thereafter sent it for postmortem examination which was conducted by Or. M.M. Maithani on 13.5.77 at 12.40 p.m. Six lacerated wounds, one contusion and two penetrated wounds were found on the face of deceased Chhedi Lal. The Investigating Officer then filed a charge-sheet and after committal proceedings the appellants and two others, viz. Gore Lal and Chhatrapal, were committed to the Court of Sessions wherein they have been convicted as above, hence these appeals. 7. In order to prove the case against the accused, the prosecution examined P.W. 4 Baijnath, the informant, P.W. 5 Indrasen, P.W. 6 Prabhu, P.W. 8, Sahabd in and P.W. 9 Ram Rakhan as eye witnesses. Besides examining Dr. H.M. Maithani, P.W. 7, who conducted the post-mortem examination on the dead body of Chhedi Lal and S.I. Girja Shanker Yadav (P.W. 10) who investigated the case, the prosecution also examined a number of formal witnesses. 8. The appellants denied the charges framed against them and attributed their false implication due to enmity. They did not produce any defence. 9. The case against the co-accused Gore Lal and Chhatra Pal alias Nankau rested on identification alone. They were allegedly seen and later identified by the witnesses P.W. 5 Indrasen and P.W. 9 Ram Rakhan, who have been disbelieved, and rightly so, by the Trial Judge resulting into their acquittal. 10. Sri T. Rathore, learned counsel for the appellants, and Sri A.K. Dwivedi, learned A.G.A., have been heard and they placed the entire record. 11. It has been argued that the version given by Baijnath in the F.I.R. and his statement on oath contradicts materially. No where in the F.I.R. he has stated that at the time of occurrence (which is given in the F.I.R. as 12.30 p.m.) he was sleeping when the accused arrived and the occurrence took place. It has stated therein that he and Chhedi Lal along with others were just lying in front of the quarter of Chhedi Lal. He saw the appellants armed with Ballam and Lathi arriving there, who suddenly started assaulting Chhedi Lal on his face. It has stated therein that he and Chhedi Lal along with others were just lying in front of the quarter of Chhedi Lal. He saw the appellants armed with Ballam and Lathi arriving there, who suddenly started assaulting Chhedi Lal on his face. He and others, who were also lying there nearby, raised alarm and tried to intervene but the assault could not be prevented and after assault the accused managed to run away. It is also stated in the F.I.R. that he first went to the Station Master and gave information of this incident to him and thereafter he went to the Police Station where he lodged the written report. Further, assault by Gaya Prasad alone with his Ballam is alleged. No over act is attributed to Ram Autar. 12. In his statement on oath, however, P.W. 4 Baijnath has stated that he was asleep when the assailants arrived there. On hearing the noise of their foot steps, he got awakened. Three of the assailants over powered Chhedi Lal. Two of them, one of whom was armed with a Ballam and the other with a Lathi, started assaulting Chhedi Lal on his face. Ram Rakhan and Maiku, who were sleeping at the same place, were got awakened by him. He has further stated that appellant Gaya Prasad was armed with a Ballam and Ram Autar was armed with a Lathi with which they assaulted Chhedi Lal. Three persons, who had over powered Chhedi Lal, were unknown to him. In his cross-examination he has stated that the assault continued for half an hour. The assailants had used Ballam, Lathi and Saria. It may be noted that nowhere in the F.I.R. he has stated that either of the assailants had used Saris also. On the contrary, the case in the F.I.R. is that the accused-Gaya Prasad alone was assaulting the deceased Chhedi Lal with Ballam. Further, he has stated that the injuries were inflicted on the whole body of Chhedi Lal, including head, chest and abdomen. This is contradicted by the version given in the F.I.R. wherein the assault, as stated, was confined to Chhedilal's face alone. The Doctor had also found ante-mortem injuries only on the face. No injury was found either on the chest or abdomen of the deceased. Thirdly, in the F.I.R., he claims to have first informed the Station Master. This is contradicted by the version given in the F.I.R. wherein the assault, as stated, was confined to Chhedilal's face alone. The Doctor had also found ante-mortem injuries only on the face. No injury was found either on the chest or abdomen of the deceased. Thirdly, in the F.I.R., he claims to have first informed the Station Master. In his examination on oath he has stated that he did not go to inform the Station Master but had sent Ram Rakhan to inform him. P.W. 2 D.S. Tripathi, Station Master, Prempur Railway Station, has stated that he got the information of the murder of Chhedi Lal through Ram Rakhan, Gangman. According to him, Ram Rakhan had come alone to give this information. He has nowhere stated that he got the information through P.W. 4 Baijnath Singh. It is also important to note that Ram Rakhan did not tell him the names of the assailants These contradictions lead to the irresistible conclusion that P.W. 4 Baijnath was not there when the occurrence took place. Had he been an eye witness these material contradictions in the F.I.R. lodged by him and in his statement on oath would not have been there. 13. P.W. 9 Ram Rakhan, who was posted as Keyman at Prempur Railway Station, has stated that in the incident he saw five persons assaulting Chhedi Lal. Out of them he could identify Gaya Prasad and Ram Autar, the appellants who were armed with Ballam and lathi each. He claims to have been sent by Baijnath to inform the Station Master. P.W. 2 D.S. Tripathi, the Station Master, has admitted that he was informed about the murder of Chhedi Cal by Ram Rakhan. However, he has stated that besides divulging the information regarding the murder of Chhedi Lal, he was not told anything more by him. Had Ram Rakhari seen the appellants among the assailants inflicting injuries to Chhedi Lal, he would certainly have informed about it to the Station Master. This leads to the inference that Ram Rakhan too did not see the occurrence with his own eyes. Subsequent statement that he saw the appellants among assailants assaulting Chhedi Lal is an improvement and cannot, therefore, be believed. 14. The testimony of P.W. 5 Indrasen and P.W. 9 Ram Rakhan, who had identified the other two accused, have been rightly disbelieved by the Trial Judge. Subsequent statement that he saw the appellants among assailants assaulting Chhedi Lal is an improvement and cannot, therefore, be believed. 14. The testimony of P.W. 5 Indrasen and P.W. 9 Ram Rakhan, who had identified the other two accused, have been rightly disbelieved by the Trial Judge. The statement of the witnesses P.W. 6 Prabhu and P.W. 8 Sahab Deen have also been rightly disbelieved by the Trial Judge, so far as recovery of handle is concerned. It may be mentioned that the learned Trial Judge has recorded a finding that the two identifying witnesses were knowing the two co-accused from before and the identification parade was a farce. The acquittal of the two co-accused has become final and has not been challenged, and rightly so. The effect of this finding will be that the prosecution agency has not been above board in the instant case. And further that the naming of the present appellants is also rendered highly suspicions. It may further be mentioned that it was a midnight assault and within a couple of seconds the incident must have been over, hardly leaving any opportunity for any witness to see the real assailants. 15. The prosecution allegation regarding motive also appears unbelievable. It is mentioned in the F.I.R. that Chhedi Lal had seen the wife of Gaya Prasad in a compromise position with the appellant Ram Autar in the latter's quarter, on account of which Gaya Prasad bore enmity with him. If true, it is highly unbelievable and improbable that Gaya Prasad would have joined hands with Ram Autar in doing away with Chhedi Lal. The alleged motive for the crime does not inspire confidence and seems highly improbable. Thus the prosecution has failed in establishing any motive also for the murder of Chhedi Lal. 16. Thus, a close analysis of the entire evidence in the back ground of the attending circumstances of the case, shows that the prosecution has not been successful in establishing the case against these two appellants also. 17. In view of the above discussions, both the appeals are allowed. The convictions and sentences of the appellants are set aside. They are on bail. They need not surrender. Their bail bonds are discharged.