G. P. MATHUR, J. ( 1 ) ANWER has filed this appeal against the judgment and order dated 18. 5. 1979 of 3rd Addi. Sessions Judge, Saharanpor, in S. T. No. 342 of 1978 by which he has been convicted under Section 302 read with Section 34 I. P. C and has been sentenced to imprisonment for life. ( 2 ) THE case of the prosecution, in brief, is that the deceased, Soma son of Mulahar Harijan, aged about 13-14 years, used to work on the farm of Mubarak Ali and used to stay therein the night as well. Appellant Anwar, who is the son of Mubarak Ali was a person of-loose morals Somas sister Angoori went to give food to him on. 15. 8. 1978 when Anwar misbehaved with her. Due to this misbehaviour, exchange of words took place between Soma and him and he also held out a threat. At about 9 P. M. complainant Lachhi along with Antu and Harmal was returning to his village from Saharanpur. When they reached near the grove of Pancham Singh, which is near their village, they heard some sound from the field of Mubarak Ali and they also heard the voice of Anwar to the effect that the man had been finished. The complainant and others immediately ran towards the place from where sound was coming and they saw that Anwar was sitting on the chest of Soma and was pressing his neck and two other persons had caught hold of his hand and feet. Anwar and his companions ran away on seeing the complainant. The appellant was identified in the light of torch. Soma was already dead when the complainant reached there. Thereafter the complainant went to the village and narrated the incident. Somas father used to ply rickshaw in Saharanpur and he used-to return home in the night. A search was made for him in the night but as he could not be found a First Information Report of the incident was lodged by Lachhi at 7. 20 A. M, on 16. 8. 1978 at P. S. Kotwali Dehat, Saharanpur, which is 7 kms. from the place of occurrence. ( 3 ) AFTER usual investigation charge-sheet was submitted against the appellant Anwar under Section 302/34 I. P. C. The case was committed to the Court of Sessions for trial. 20 A. M, on 16. 8. 1978 at P. S. Kotwali Dehat, Saharanpur, which is 7 kms. from the place of occurrence. ( 3 ) AFTER usual investigation charge-sheet was submitted against the appellant Anwar under Section 302/34 I. P. C. The case was committed to the Court of Sessions for trial. The prosecution in support of its case examined six witnesses including two eye-witnesses. The appellant Anwar in his statement under Section 313 Cr. P. C. denied the prosecution case. He stated that Soma no doubt worked at his farm but he used to go back to his home in evening. He further pleaded that the complainant was a man of Sardar Rajpal Singh with whom he had enmity. The accused did not examine any witness in defence. The learned Sessions Judge believed the prosecution case and convicted and sentenced the appellant as stated earlier. ( 4 ) IN Order to establish the motive the prosecution examined Km. Angoori P. W. 3 who is the sister of the deceased Soma. She has stated that she used to take the food for Soma to the fields where he used to work. Some times he used to stay at the farm of Anwar in the night as well. About 66- 1/2 months back she had taken the meals of her brother to the fields where he was working. When he started eating the appellant Anwar misbehaved with her. This was seen by Soma. He had said that he would make complaint about it to his (Anwar) father and also this own family members. Anwar then said that. he would finish him in the evening. Thereafter she came back in, her house and narrated the incident to her mother. The same night at 9-9. 30 P. M complainant Lachhi came to her house and informed that Anwar had. Murdered, Soma. In her cross-examination she has stated that Soma sometimes used to come to his house for taking his meals in the night and sometimes he used to get his food from the house. On the day of incident Anwars servant Cheta had come at about sun-set and had taken the food of Soma. She has further stated that on the day of incident. Anwar had caught hold of her hand and prior to that Anwar had never misbehaved or talked to her. On the day of incident Anwars servant Cheta had come at about sun-set and had taken the food of Soma. She has further stated that on the day of incident. Anwar had caught hold of her hand and prior to that Anwar had never misbehaved or talked to her. She denied that she had given any statement under Section 161 I. P. C. that Anwar had intercourse with her 2-4 times. She further stated that she had stated before the 1. 0. that Soma had said that he would make a complaint to Anwars father but she did not know why the said fact was not written in her statement under Section 161 Cr. P. C. She also stated that when she had narrated the incident to her mother, she had said that she would not allow her son to go back to the faith when he would come back for taking his meals in the evening. ( 5 ) P. W 1 Lachhi Ram has supported the prosecution case, as narrated earlier, in his statement in Court. However, in his examination-in-Chief he did not state that Anwar was either sitting on the chest of Soma or was pressing his neck but merely mentioned about the presence of Anwar and two other persons. In his cross-examination he stated that the farm of Mubarak Ali was of 300 big has and was adjoining to the road which was towards the eastern side. There was a ditch 22-1/2 fh deep towards the eastern side of the farm and towards the southern side there was Nagfani. The body of Soma was found 30-40 paces inside the field and there was sugarcane crop all around. The body was found at a distance of one and a half furlong from the pucca road. He had heard the sound when he was at a distance of one furlong from the road and was moving on the path going 10 the village. He neither flashed his torch nor raised any alarm but quietly ran towards the sugarcane field. There he saw injuries on the body of Soma. He had heard the sound when he was at a distance of one furlong from the road and was moving on the path going 10 the village. He neither flashed his torch nor raised any alarm but quietly ran towards the sugarcane field. There he saw injuries on the body of Soma. After he had given information in the village and had searched for Somas father in Saharanpur and he could not be found, it was decided at about 4 A. M to lodge the F. I. R. but the same was actually lodged at about 7 A. M. He admitted that he was a witness in one or two sale deeds executed in favour of Sardar Rajpal Singh. He also denied that he was giving statement on account of his closeness to Sardar. Rajpal Singh. ( 6 ) P. W 2 Harmal is another eye witness of the incident. He stated that he along with P. W. 1 Lachhi and Antoo had got down from the last bus coming from Saharanpur at about 8. 30-9 P. M. When he reached near the grove of Pancham he heard talks of some persons. Thereafter he ran towards the sugarcane field after crossing the drain and there also he heard Anwar saying that the work had been done. When the torch was flashed he saw Anwar and two unknown persons who immediately ran away. Thereafter he saw Somas dead body in the field. After Lachhi had given information in the village they all went in search of Somas father in Saharanpur City. In cross-examination he stated that he heard the alarm from a distance of about 100 paces from the pucca road when they were near the grove of Pancham Singh. When he heard the alarm he neither shouted nor ran but slowly entered the farm of Mubarak Ali and the body was found inside the sugarcane crop. Subsequently he stated that he had seen Anwar pressing the neck of Soma, one person pressing his hand and another person, pressing his legs. The moment torch was flashed Anwar and his companions ran away. He further stated that other villagers came to the spot after two hours and prior to that nobody had arrived there. Subsequently he stated that he had seen Anwar pressing the neck of Soma, one person pressing his hand and another person, pressing his legs. The moment torch was flashed Anwar and his companions ran away. He further stated that other villagers came to the spot after two hours and prior to that nobody had arrived there. ( 7 ) P. W. 4 Mohakam Singh was Head constable at P. S. Kotwali Dehat and he stated that information regarding incident was orally given by P. W. 1 Lachhi at 7. 20 A. M. on 16. 8. 1978 P. W. 6 Naraian Singh, Sub-Inspector In charge, P. S. Kotwali Dehat, investigated the case. He stated about the various steps taken by him during the investigation. In his cross-examination he stated that the dead body was found inside the drain and the same was at a distance of 92 paces from the Kachcha way going to village Damgarhi. Neither there was any blood on the spot nor there was any sign of breaking of sugarcane plants. P. W. 5 Dr. N. K. Saxena conducted the post-mortem examination on the body of the deceased an P. M. on 17. 8. 1978 and found the following injuries:1. Lacerated wound 2 cm x 1 cm x skin left side of head, 15 cm above left ear. 2. Contusion 1 cm x 1 cm on left side of forehead 4 cm above eye brow. 3. Contusion 3 cm x 2 cm on back of right hand inner part. 4. Lacerated wound 7 cm x 1/2 cm x skin on front of right forearm, lower part. 5. Contusion 1 cm x 1 cm on back of right index finger. 6. Abrasion 1/2 cm x 1/2 cm on front of right knee. 7. Lacerated wound 1 cm x 1/4 cm x skin in web of right 2nd and 3rd toe. 8. Contusion 2 cm x 1 cm inner side of left knee. 9. Abrasion 1/2 cm x 1/2 cm on front of left leg middle. 10. Legature mark 13 cm x 2-1/2 cm on front and left side of neck, lying horizontally interrupted on back and right side. Skin and soft tissue on groot of mark is parchment like with tissue around mark are congested and ecchimosed. Legature mark is lying low on neck over upper part of trachea. Skin around edges of legature mark ecchimosed. Legature mark 13 cm x 2-1/2 cm on front and left side of neck, lying horizontally interrupted on back and right side. Skin and soft tissue on groot of mark is parchment like with tissue around mark are congested and ecchimosed. Legature mark is lying low on neck over upper part of trachea. Skin around edges of legature mark ecchimosed. Subcutinium tissue of neck are ecchimosed. In his cross-examination the doctor stated that the legature mark could be caused as a result of pressing by some hard object or by a rope and that such a legature mark could not come on account of pressing by fingers. ( 8 ) NOW the question of motive may be examined. According to P. W. 3 Km. Angoori, appellant Anwar misbehaved with her when she went to give food to her brother in the afternoon on the date of incident and then his brother told Anwar that he would make complaint about the incident to his (Anwar) father as well as to his own family members. Thereafter the accused said that he would finish him in the evening. Even if Soma was killed the appellant would not have achieved anything in as much as Km. Angoori was bound to make a complaint about the incident to her parents and they in turn would have informed his father. There is no evidence on record to show that Soma had either reprimanded the appellant Anwar or had assaulted him on account of his mis-behaviour towards his sister. Therefore, we are of opinion that the prosecution has failed to establish that the appellant had any motive to commit the crime. ( 9 ) P. W. 6 Narain Singh has stated in his cross-examination that the dead body was found inside a water drain and there was no sign of breaking of sugarcane plants in the neighbourhood nor there was any blood on the spot. He has further stated that the spot where body was found was 92 paces from the Kachcha way which goes to village Damkari P. W 1 Lachhi Ram has stated that he along with Antoo and P. W. 2 Harmal was going i. e. his village from the city at about 9-9-30 P. M and he heard some persons talking when he reached near Panchams grove. He heard a sound he is finished and thereafter he flashed his torch and saw the appellant Anwar and two unknown persons in the sugarcane field. The statement of this witness does not inspire confidence for the reason that the accused while committing the crime will not normally speak loudly. The statement of the 1. 0. shows that the body was at a distance of 92 paces from the road and, therefore, the accused too must leave been at the same distance. It is highly unlikely that the accused would talk amongst themselves in such a loud voice which may be audible at a distance of 92 paces. If the prosecution case had been that the victim raised an alarm, which a person being assaulted may raise at the top of his voice in order to get help, we could possibly believe the statement of the witnesses. However, the evidence is that it was the accused who was talking and the victim was quiet. P. W. 2 Harmal has also stated to the same effect, namely, that he heard voice of some people talking amongst themselves and thereafter he along with P. W. 1 Lachhi Ram and Antoo went inside the sugarcane field. We are of opinion that the reason given by the two eyewitnesses for going inside the sugarcane field cannot be accepted. P. W. 2 Harmal has also stated that Lachhi flashed his torch when they were only at a distance of 4-5 paces from the accused. This again appears to be highly improbable. If a voice is heard of the effect that the man is finished from inside a field the natural reaction of the persons going on the road would be to immediately flash their torches in that direction to ascertain as to what is happening. That apart both these eye witnesses have stated that the body of Soma was found in the sugarcane field but the 1. 0. has stated that he found the body inside a water drain. This again casts doubt as to whether the eyewitnesses had really seen the accused assaulting the deceased. That apart both these eye witnesses have stated that the body of Soma was found in the sugarcane field but the 1. 0. has stated that he found the body inside a water drain. This again casts doubt as to whether the eyewitnesses had really seen the accused assaulting the deceased. ( 10 ) IN the F. I. R. lodged by P. W. 1 Lachhi Ram it is mentioned that when he along with other witnesses reached in the sugarcane field they saw that appellant Anwar was sitting on the chest of Soma and was pressing his neck while two other persons had caught hold of his hands and legs. The post-mortem report shows that there was a legature mark 13 cm x 2-1/2 cm on the front and left side of the neck of the deceased. P. W. 5 Dr. N. K. Saxena has stated that the legature mark was caused by pressing either by a rope or by a hard object and such a mark could not be caused if the neck was pressed by fingers. In the First Information Report it is not mentioned that Anwar was pressing the neck of the deceased by any lathi or rope and the impression created is that he was doing so by his hands. However, in his statement in court P. W. 1 Lachhi Ram gave a different version of the incident. There he did not state that either Anwar was sitting on the chest of Soma or was pressing his neck. Similarly he did not state that the two other unknown assailants had caught hold of his hands and legs. The witness merely stated about the presence of Anwar and two unknown persons on the spot Similarly P. W. 2 Harmal merely stated about the presence of appellant Anwar and two unknown persons. He did not assign any specific role to these accused. It appears to us that a different version was given in court so that it may not be in conflict with the post mortem report Therefore, the witnesses merely stated about the presence of the appellant and two others on the spot without assigning any role to them. The deceased had sustained in all ten injuries out of which seven appear to have caused by a blunt object like lathi besides injury no. 10 which is a legature mark. The deceased had sustained in all ten injuries out of which seven appear to have caused by a blunt object like lathi besides injury no. 10 which is a legature mark. The witnesses have not stated that any assailant was carrying any weapon with him like lathi etc. This again casts doubt upon the testimony of the eye-witnesses. ( 11 ) ACCORDING to the statements of the eye witnesses the incident took place at about 9 PM on 15. 8. 1978 but the FIR was lodged at 7. 20 AM on 16. 8. 1978 at P. S. Kotwali Dehat which is 7 kms. from the place of occurrence. Explanation for the delay in lodging the FIR is that the complainant Lachhi Ram along with Rati Ram and Babu came to Saharanpur in the night itself to search Somas father and brother but they could not becloud out However, P. W. 1 has stated that he met two boys of his village at about 3a A. M in the city and decided to lodge the F. I. R and then went to the police station. Even if his statement to the effect that he searched the father and brother of the deceased in the night is accepted even than the FIR should have been lodged by 4. 30 A. M. However, the same was done after considerable delay at 7. 20 A. M. This shows that the incident was not witnessed by anyone in the night and when the body of the deceased was discovered in the morning, then the F. I. R was lodged. ( 12 ) THERE is another circumstance which creates doubt about the prosecution case. P. W. 3 Angoori had stated that when the appellant had misbehaved with her and Soma had told him that he would. make a complaint to his father, the appellant had said that he would finish him in the evening. If really such an incident had happened and the appellant had threatened the deceased that he would finish him in the evening, Soma would not have stayed, at the farm after sunset. TIn all probability he would have either immediately come back to his house or would have, done so in the evening. No one is likely to stay near a person in the night who has given threats to his life. TIn all probability he would have either immediately come back to his house or would have, done so in the evening. No one is likely to stay near a person in the night who has given threats to his life. This circumstance creates doubt as to whether the incident as narrated by Km. Angoori had taken place or not ( 13 ) FOR the reasons discussed above we are of opinion that the case of the prosecution is not free from doubt. The appeal is accordingly allowed. The conviction and sentence of the appellant are set aside. He is on bail. He need not surrender. His sureties and bail-bonds are discharges. Appeal allowed. .