M. K. MUKHERJEE, J. ( 1 ) THIS appeal is directed against the judgment and order dated April 28, 1981, passed by the learned Sessions Judge, Hamirpur, convicting the appellant under sections 302 and 392 of the Indian Penal Code and sentencing him to imprisonment for life. ( 2 ) BEREFT of details, the case of the prosecution is as follows: The de facto complainant Asharam (P. W. 2) is a resident of village Nekpura within the police station of Panwari. Lallu (since deceased) was the maternal cousin of Asharam and he used to live in the same village. The wife of Laliu had conceived before her marriage and therefore Amarju, brother of Asharam, stopped dining with Latlu. Lallu felt aggrieved thereby and in course of a quarrel over that issue he had beaten Amarju for which criminal case was started. About two years thereafter on 7. 10. 1980 to be precise, at or about 8 A. M. , when Amarju was coming back home from the Nar with a bundle of grass on his head and a Pharsa on his shoulder towards his house and had reached a place near a well of the village, Lallu along with one stranger (the appellant before us) came to the well, Coming there, both Lallu and the appellant started assaulting Amarju from behind with a spear and pharsa respectively. Immediately thereupon Amarjufled away from that place, but he was chased by the two miscreants. On being so chased, Amarju tried to enter the house of Mishri Lal (P. W. 3), but before he could enter the house, he was again assaulted by Lallu and the appellant fell down dead there. Thereafter, the two miscreants went to the shop of Ram Pal and demanded a sum of Rs. 20,000/- by openly giving out that they had committed a murder. When Ram Pal expressed his inability to pay any cash, the miscreants took away some clothes from his shop, put them in a bag and went to the house of Asha Ram Lodhi (P. W. 5) of the village. There they snatched away silver and gold ornaments from the person of his wife and ran towards a tank. Then the villagers, armed with various weapons, chased them and ultimately succeeded in killing Lallu and arresting the appellant with the stolen articles. There they snatched away silver and gold ornaments from the person of his wife and ran towards a tank. Then the villagers, armed with various weapons, chased them and ultimately succeeded in killing Lallu and arresting the appellant with the stolen articles. The appellant was then taken to the village Pradhan and on interrogation he disclosed his name as Kripa Ram and his place-of residence as village Pagra within the police station of Garotha in the district of Janshi. A P harsa was also recovered from his possession. ( 3 ) ASHARAM (P. W. 2) then went to Ranwari Police Station and lodged an information about the incident. On that information, a case under sections 3021392 of the Indian Penal Code was registered and S. 0. Lal Bahadur Verma (P. W. 6) took up its investigation. He came to the village, held inquest upon the dead bodies of Amarju and Lallu and sent them for post-mortem examination. He prepared a Sketch map of the locale seized blood-stained and ordinary earth from the place of occurrence and examined witnesses. On completion of investigation, he submitted charge-sheet ( 4 ) THE appellant pleaded not guilty to the charge levelled against him and contended that while he was going to village Nakpura to meet the sister of his mother, he was arrested by the villagers. ( 5 ) IN support of its case, the prosecution examined seven witnesses, but no witness was examined by the defence. ( 6 ) THE un-controverted evidence of the Station Officer (P. W. 7) proves that Amarju and Lallu were found dead in village Nekpura on October 7,1980 and that of Dr. A. K. Srivastava (P. W. 1), who held post mortem examination on their dead bodies, proves that they had a number of injuries on their respective bodies, which were caused by sharp-cutting and pointed weapons. The question next is whether the prosecution has been able to conclusively prove that they were killed in the manner alleged by it. A. K. Srivastava (P. W. 1), who held post mortem examination on their dead bodies, proves that they had a number of injuries on their respective bodies, which were caused by sharp-cutting and pointed weapons. The question next is whether the prosecution has been able to conclusively prove that they were killed in the manner alleged by it. ( 7 ) TO prove this part of its case, the prosecution principally relied upon the evidence of Asharam (P. W. 2), brother of Amarju, Mishrilal (P. W. 3) and Ram Pal (P. W. 4) Apparently it may seem that there is no reason to disbelieve them but then, when their evidence is tested on the touchstone of probability and in the light of the other circumstances appearing on record, it cannot be safely relied upon to sustain the conviction of the appellant ( 8 ) ACCORDING to Asharam (P. W. 2), while he was sitting on the well at or about 8 AM on the morning of that fateful day, Lallu and another miscreant, whose name subsequently transpired to be Kripa, Ram (the appellant before us), came there and started assaulting Amarju with a pharsa and Bhala respectively. There is no reason whatsoever why they would assault, Amarju. The motive scribed for such assault, namely, that there was some dispute between Amarju and Lallu, Two years back, is too far-fetched. Even if it is assumed that Lallu had any motive for assaulting Amarju for the enmity he had with him two years back, there is nothing on the record to indicate as to why the appellant, who admittedly is not a resident of the village, would come for the purpose. We next find that according to P. W. 2 and the F. I. R. lodged by him the incident took place at 8 A. M. The F. I. R. also discloses that information about the incident was given at the police station at 11. 30 A. M. Surprisingly, however, in his cross-examination, P. W. 2 stated that the incident continued till after-noon and he reached the police station to report about the incident just before sun-set. The above answer elicited in cross-examination unmistakable leads to the conclusion that the incident did not taken place at the time given by P. W. 2, and P. Ws. 3 and 4 who came to support him. The above answer elicited in cross-examination unmistakable leads to the conclusion that the incident did not taken place at the time given by P. W. 2, and P. Ws. 3 and 4 who came to support him. ( 9 ) THE next infirmity that we find in the prosecution evidence is that though the investigating officer claims that blood stained earth was seized from near the house of Mishri Lal where, according to the prosecution, Amarju fell down dead, the same was not sent for chemical examination. This aspect of the matter assumes importance for if blood was proved to have been found near the door of, the house of Mishri Lal, that would have gone a long way to corroborate the evidence of the three witnesses, namely, P. Ws. 2, 3 and 4. ( 10 ) AS has already been noticed, the prosecution case is that after the victim fell down dead near Mishri Lals house, the two miscreants went to the shop of Ram Pal and demanded a sum of Rs. 20,000. 00 from him saying that they had committed murder. It is difficult for us to believed that Lallu, who admittedly was a resident of the village in question, would openly make such a demand, more particularly, in the presence of a number of villagers, who were admittedly near about that place. The most glaring improbability of the case, in our opinion, is that though a number of villagers, armed, with deadly weapons, chased the miscreants, apprehended both of them and killed Lallu, the appellant was not at all manhandled, even though it was he who, according to the prosecution, was carrying the booty. ( 11 ) ANOTHER circumstance, for which we are unable to accept the prosecution case, is that though, according to it, after committing robbery in the shop of Ram Pal, they entered into the house of Asharam and snatched away gold and silver ornaments, including a nose ring, from the person of his wife, none from his family came to prove the same. Though Asharam (P. W. S) was examined, he did not claim to have seen such snatching of property from the person of his wife and, according to him he had heard about the incident. Though Asharam (P. W. S) was examined, he did not claim to have seen such snatching of property from the person of his wife and, according to him he had heard about the incident. It was expected of the prosecution, therefore, the examine the wife of Asharam, having regard to the fact that her evidence would have been the best on the point. Further, if the prosecution case was true in this regard, she must have sustained some injuries. No evidence was, however, adduced by the prosecution in this respect. ( 12 ) HAVING gone through the entire evidence on record, we find that the defence of the appellant, that while he was going to the house of his maternal uncle in village Nekpura, he was apprehended by the people, Sic appears to be probable. ( 13 ) ON the conclusions as above, were allow the appeal and set aside the order of conviction and sentence recorded against the appellant. Let the appellant, who is in jail, be released forth with. Appeal allowed. .