JUDGMENT Surya Prasad, J. - This is a Criminal appeal against the judgment and order dated 2-9-1988 passed by the then V Additional Sessions Judge. Saharanpur in S. T. No. 214 of 1985 State v. Hari Chand and others under Sections 302/323, I.P.C., P. S. Deoband District Saharanpur convicting and sentencing the accused appellants under Section 304 (2) read with Section 34, I.P.C. to five years rigorous imprisonment each and further convicting and sentencing the accused appellants under Section 323 read with Section 34, I.P.C. to simple imprisonment for three months each. The prosecution case briefly stated is that on 24-9-1983 at about 6.00 p. m. Smt. Somi, her husband Kurdi and son Vinod were sitting at their house. The younger son named Chhotey of Smt. Somi was playing out side. Hari Chand, his sons Suresh and Manga came to the house of Smt Somi and started saying that her son Chhotey was abusing them, whereupon her husband Kurdi expressed that Chhotey was a small boy, how he could abuse them. Thereupon they started assaulting Kurdi with Lathi. Vinod rushed to save his father Kurdi, whereupon Manga assaulted him with a Ballam, Hari Chand and Suresh had Lathis in their hands. Smt. Somi raised alarm hearing which Ghissu, Manpal and Subhash Chandra who were residents of her village itself rushed to the place of occurrence and witnessed the incident. Smt. Somi and certain others took Kurdi to the Deoband hospital. Her son Vinod was examined and given medical aid there. The doctor concerned, however, advised them to take Kurdi to the Saharanpur District Hospital as his condition was quite serious. Consequently he was taken by them and admitted to that hospital. Smt. Somi was looking after her husband Kurdi and son Vinod, whose conditions were serious and therefore she could not lodge the report at the Police Station before 26-9-1983, when she lodged it. A chik was prepared on the basis of her written report and a case was registered against the accused-appellants. Kurdi subsequently died. After the completion of the investigation into the case a charge sheet was submitted against the accused-appellants. The prosecution examined Smt. Somi PW 1, Vinod PW 2, Ghissu PW 3, Dr. Pradeep Singh PW 4, Dr. Virendra Nath PW 5, Vinod Kumar, Investigating officer PW 6, Dr. Kurdi subsequently died. After the completion of the investigation into the case a charge sheet was submitted against the accused-appellants. The prosecution examined Smt. Somi PW 1, Vinod PW 2, Ghissu PW 3, Dr. Pradeep Singh PW 4, Dr. Virendra Nath PW 5, Vinod Kumar, Investigating officer PW 6, Dr. S. K. Sharma PW 7 and Ram Mehar Singh P W 8 and has relied upon certain documents in support of its case. The accused pleaded not guilty. They have stated that they have been falsely implicated on account of enmity. The accused have examined Vinod Kumar Srivastava (D. W. 1), Ram Singh Kapit (D. W. 2) and Prem Chandra Sharma (D. W. 3) and have relied upon certain documents in support of their contentions. Having heard learned Counsel for the parties and having considered the evidence on record the learned Additional Sessions Judge convicted and sentenced the accused vide his impugned judgment and order as mentioned above. Aggrieved, the appellants preferred this appeal against the same. There is a distance of quarter to one kilometre between the Deoband Police Station and the Deoband Hospital. Smt. Somi PW 2, her husband's elder brother Ghissu PW 3, son Vinod PW 2, Ram Chandra, Phool Singh and certain others were all present in the Deoband Hospital where Kurdi was taken for treatment. There was no enmity between Smt. Somi and other members of her family on the one side and Ghissu and others on the other. The above named persons had soft corner with Kurdi and other members of his family and this was probably the reason why they had accompanied Kurdi to the Deoband Hospital. Any one of them could have gone to the Police Station to inform the police about the incident. But there is no explanation why none other than Smt. Somi PW 1 or her son Vinod could do so. It has came in the evidence of Smt. Somi PW 1 that her soa Vinod had informed the police in the night. But there is no such oral or written report on record. There is no enmity between Ramoo and others on the one side and the accused on the other. Ramoo is closely connected with the members of the family of Kurdi (deceased) for one reason or the other. But there is no such oral or written report on record. There is no enmity between Ramoo and others on the one side and the accused on the other. Ramoo is closely connected with the members of the family of Kurdi (deceased) for one reason or the other. He had accompanied Vinod PW 2 on each and every day fixed in the case in the lower Court. There are inconsistencies and contradictions in between the statements of Somi PW 1 and Vinod PW 2 on the point of the place where the F.I.R. was actually got typed and also on the point whether Sint. Somi alone got it typed on her dictation or she and her son both did so. There is a specific mention in the F.I.R. that Suresh and Hari Chand were armed with Lathis and Manga was armed with a Ballam. It is further mentioned therein that Suresh and Hari Chandra assaulted Kurdi with Lathi and Manga assaulted Vinod with Ballam. But strangely enough, Smt. Somi and Vinod dropped the Ballam and introduced in its place a shandar Lathi as known in the local dialect. Ghissu PW 3 has altogether excluded the Ballam, from the scene of occurrence by saying that Manga had a Lathi in his hands and that none of the accused had Ballam with him. It is also in the evidence of Smt. Somi PW 1 that Hari Chand caught hold of Kurdi and Vinod. Ghissu has also given his statement to this effect. But there is no case as such of the prosecution. Therefore, the role which has been assigned to the accused Hari Chand in the evidence is quite different from the role mentioned in the F.I.R. Vinod PW 2 has initially filed an affidavit vide paper No. 10-Ka, what has been mentioned in this paper document has fully falsified the prosecution case. He has tried to establish that he filed the aforesaid affidavit because the accused had threatened to kill him. But there is no complaint or report to that effect to any one. His statement in regard to the said affidavit is falsified by the statement of the witnesses examined by the accused in support of their contentions. Therefore, no reliance can be placed upon the statement of Vinod PW 2. The report is inordinately delayed and appears to have been prepared after due deliberations and consultations. His statement in regard to the said affidavit is falsified by the statement of the witnesses examined by the accused in support of their contentions. Therefore, no reliance can be placed upon the statement of Vinod PW 2. The report is inordinately delayed and appears to have been prepared after due deliberations and consultations. There is partybandi in the village. There is no independent witness examined in this case. There is no consistent evidence on the point of the weapons said to have been used in the course of the incident. Not only this but the mode and manner of the incident has not also been consistently established. Therefore the possibility of the accused appellants having been falsely implicated in this case on account of enmity, partybandi after due deliberations and consultations cannot be ruled out. The contention of the learned counsel for the appellants to this effect appears to be correct. The learned counsel for the appellants has further argued that the medical evidence does not tally with the occular account. This contention is not without substance. In the result the appeal is allowed. The impugned judgment and order are set aside. The appellants are acquitted of the offences punishable under Section 304 (2) read with Section 34, I.P.C. and under Section 323 read with Section 34, I.P.C., they are on bail. Their bail bonds are cancelled and sureties stand discharged. They need not surrender.