JUDGMENT I.S. Mathur, J. - These three appeals arise from the judgment and order dated 19.4.1983 passed by the Sessions Judge, Jhansi convicting the accused appellants under Section 302 read with Section 34 I.P.C. and Section 324 I.P.C. read with Section 34 I.P.C. and sentencing them to rigorous imprisonment for life on the first count seven years' rigorous imprisonment on the second count, and two years' rigorous imprisonment under the third count. All the sentences have been ordered to run concurrently. 2. The learned counsel appearing for the accused appellant Bharosey in Criminal Appeal No. 1669 of 1983 made a statement before this court on 17.2.1992 that this appellants has died. The appeal filed by him accordingly abates. 3. The case of the prosecution is that the deceased Chhandi who earlier resided in village Garotha, District Jhansi, came to the village Phargaon. He was implicated for the murder of one Hari Ram brother of accused Lachchi, but was acquitted. However, apprehending danger to his life from accused Lachchi and others, he shifted to the village Markuwan. After the acquittal of Chhandi deceased, the accused become inimical to the deceased. On the night between 28/29-6-82, Chhandi along with his family members, namely his wife Smt. Avadh Rani, his daughter Savitri (P.W. 2), his son Jagdish (P.W. 3) and other minor children, was sleeping in the courtyard of the house. It was moonlight night. At about mid-night, Smt. Savitri (P.W. 2), Jagdish (P.W. 3) and Smt. Avadh Rani got up on hearing the cries of the deceased Chhandi. They saw accused Ram Kishan and Lachchi, armed with axes (Kulharis), and Bharosey and Santosh armed with spears. Accused Bharosey was flashing torch. Accused Ram Kishan and Lachchi were attacking Chhandi with axes. In order to save him his wife Smt. Avadh Rani fell over him and, she was also attacked by the accused. Smt. Savitri, daughter of the deceased also fell over his father in order to save him and she too was attacked. Jagdish (P.W. 3) could, however, escape and he raised alarm which attracted the other villagers. The witnesses, namely Smt. Savitri and Jagdish recognised assailants in the moon light and torch light. 4. Chhandi died at the spot as a result of the injuries. A written report was given by P.W. 3 Jagdish at the police station - Garotha at a distance of about 18 kms. The witnesses, namely Smt. Savitri and Jagdish recognised assailants in the moon light and torch light. 4. Chhandi died at the spot as a result of the injuries. A written report was given by P.W. 3 Jagdish at the police station - Garotha at a distance of about 18 kms. The report was lodged at about 7.15 a.m. the next morning i.e., on 29.6.82 and on the basis of the written report 28/29-6-1982 (Ext. Ka-13). Chik Report (Ext. Ka-5) was prepared. 5. Investigation of the case was taken up by Sub-Inspector Sri Sewak Ram Yadav (P.W. 5). After taking the statement of Jagdish at the police station, he left for the sence of occurrence. He look blood stained clothes in his custody and placed them in sealed cover and prepared the recovery memo Ext. Ka-7. Inquest report was prepared (Ext. Ka-8) and, after preparing the necessary papers (Exts. Ka-9) to Ka-12), he sent the dead body of Chhandi for post-mortem with constable Om Prakesh and village Chaukidar. The injured Smt. Avadh Rani and Smt. Savitri were also sent for medical examination. The Investigating Officer also took blood stained and plain earth as well as portion of Charpoy stringes and prepared memo Ext. Ka-13. He also prepared the site plan Ext. Ka-14. 6. The post mortem examination was conducted by P.W. 5 Dr. B.D. Mangal and he found the following ante-mortem injuries on the person of Chhandi. 1. Incised wound 4" x " cutting of mandible buccal cavity, larmes and cesophagus is cut on front and left side of chin. Wound is oblique in direction. 2. Incised wound 3" x 1" x cutting of strenum and left clavicle bone x thorax cavity deep on middle and left side of upper part of chest, cutting fracture of body of stremun and clavicle bone. Fracture of first rib. Direction of the wound was oblique and from front to back. On internal examination. it was found that the wall of the thorax and bronchie were cut under injury of chin, left lung was cut. He also found that heart was emply and congested and small and large intestines contained fecal matter. He further found that abdomen was empty. According to the doctor the death was caused due to shock and haemorrage as a result of the afore mention injuries. He also found that heart was emply and congested and small and large intestines contained fecal matter. He further found that abdomen was empty. According to the doctor the death was caused due to shock and haemorrage as a result of the afore mention injuries. In regard to the injuries he is of the opinion that these could be caused with an axe and further that death could have taken place in the night between 28/29-6-1982. Smt. Savitri and Smt. Awadh Rani were medically examined by P.W. 1 Dr. R.C. Joshi on 29.5.1982 between 12.05 P.M. to 12.30 p.m. and he found the following injuries on the parsons of Smt. Savitri Devi and Smt. Awadh Rani, vide injury reports Exts. Ka-1 and Ka-2. Injuries of Smt. Savitri (Injury Report Ext. Ka-1). 1. Incised wound 9 ems x 3 cm x cut of bone, oblique on back of right fore arm 10 cms. below from elbow joint (right). Blood seen inside the wound. X-ray was advised. Fracture of right radius bone was deep. 2. Incised wound 7 cm x 3 cm x bone deep on right side of back, norimontal, situated in the right supra scapular region. X-ray was advised. 3. Incised wound 7 cm x 3 cm x bone deep on left side of back, oblique,on left scapular region. Advised X-ray. Injuries of Awadh Rani (Injury Report Ext. Ka-2). 1. Incised wound 6 ems x 1 cm x bone deep oblique on left side of head, 4 ems above from left eye-brow. Margins were clean cut, averted. Advised X-ray. 2. Lacerated wound 5 cm x 1 cm x bone deep, oblique on the middle of back of head, cms behind right ear. Margins were irregular and inverted. Advised X-ray. 3. Incised wound 7 cm x 3 cm x bone deep, oblique on right side of back in the scapula region, middle posterior. Margins clean cut and averted. Advised X-ray. 4. Abrasion 7 ems x cm right side of back, oblique 2 cm above from injury No. 3. 5. Contusion 8 cm x 3 cm traumatic swelling 10 cm x 4 cm on the right side of back, 2 con above from injury No. 4. Advised X-ray. 6. Abrasion cm x on the top of right shoulder. 7. Lacerated wound 3 cm x cm vertical on base of lateral side of left index finger. Margins irregular and inverted. 8. Contusion 8 cm x 3 cm traumatic swelling 10 cm x 4 cm on the right side of back, 2 con above from injury No. 4. Advised X-ray. 6. Abrasion cm x on the top of right shoulder. 7. Lacerated wound 3 cm x cm vertical on base of lateral side of left index finger. Margins irregular and inverted. 8. Lacerated would 3 cm x cm on dorsum of left thumb in the middle. X-ray was done by P.W. 6 Dr. D.N. Shukla. He found a fracture of both bones on the left side on left scapular region on the person of Smt. Savitri only, vide, report Ext. Ka-17. After completing the investigation, the Investigating Officer submitted the charge-sheet Ext. ka-16. 7. The prosecution examined six witnesses in support of the prosecution case. P.W. 2 Smt. Savitri and F.W. 3 Jagidish, daughter and son of the deceased are said ton be the eye-witnesses. They have deposed that, on hearing the cries of their father, they woke up and saw the accused Ram Kishan and Lachhi assaulting their father with Kulhari, and Bharosey and Santosh were standing with ballam. They have also stated that the accused Bharosey was flashing a torch and further that the accused also assaulted Avadh Rani mother of these two witnesses and Savitri (P.W. 2) when they tried to save their father. It is also stated by these witnesses that the incident took, place at about mid-night and it was moonlit night. They have further stated that, on their shouts, villagers, came there and challenged the accused, who ran away thereafter. P.W. 2 Jagdish is also the informant who lodged the first information report. He has stated that he left for the police station, after scribing the report, at about 4.30 in the margin. P.W. 1 Dr. R.C. Joshi, examine Savitri (P.W. 2) and Avadh Rani and he has, inter alia, stated that the examination was made at. 12.05 p.m. and 12.30 p.m. respectively and the injuries were about half day old. It is also stated by him that the injury No. 4. on the person of Avadh Rani could have teen caused with Ballam, if it is used as a lathi. He found the injuries on the persons of these injured as already noted above. Dr. B.D. Mangla P.W. 4 conducted autopsy on the body of Chandi deceased and found the injuries already noted above. on the person of Avadh Rani could have teen caused with Ballam, if it is used as a lathi. He found the injuries on the persons of these injured as already noted above. Dr. B.D. Mangla P.W. 4 conducted autopsy on the body of Chandi deceased and found the injuries already noted above. In his cross examination, he stated that the deceased could have shouted after getting these injuries. He also stated that the meal of Roti and Namak will clear of from the stomach in six hours time. P.W. 6 Dr. T.N. Shukla is the Radiologist and has proved the reports Exts. Ka-17. and Ka-18 and Ka-19. Sri Sewak Ram Yadav IP.W. 5) is the Investigating Officer. He stated that the report was lodged in his presence on 29.6.82 at 7.15 a.m. and was started the investigation immediately. He proceeded to the spot after taking the statements of Jagdish and Head Moharrir. In his cross-examination he stated that he reached the spot at 8.50 a.m. and finished the proceedings regarding panchayatnama at 1 2.30 p.m. and thereafter he sent the body for post mortem report. He denied the suggestion that Jagdish was called by him from his Mama's place and got this false report lodged. 8. The prosecution also tendered in evidence the affidavit Ext. Ka-20 of constable Om Prakash who had taken the dead body for post-mortem and also the reports of the Chemical Examiner and Serologist Exts. Ka-21 and Ka-22. 9. The accused denied the allegations and stated that they have been falsely implicated due to enmity. 10. The accused also examined Babu (D.W. 1). He deposed that it was dark night at the time of occurrence and that Jagdish P.W. 3 was not present in his house in the village and the deceased and the other injured were lying on their respective cots. 11. The defence also tendered certified copies of the reports under Sections 107/116 Cr. P.C. Ext. Kha-1 and copy of the judgment in Sessions Trial No. 191 if 1981. Ext. Ka-2 in which the deceased was arrayed as an opposite party or as an accused. 12. We have heard the learned counsel for the appellant aid the learned Addl. 11. The defence also tendered certified copies of the reports under Sections 107/116 Cr. P.C. Ext. Kha-1 and copy of the judgment in Sessions Trial No. 191 if 1981. Ext. Ka-2 in which the deceased was arrayed as an opposite party or as an accused. 12. We have heard the learned counsel for the appellant aid the learned Addl. Government Advocate at length and we are clearly of the opinion that the prosecution has failed to prove its case against any of the accused beyond reasonable doubt and the judgment and the order of the learned Sessions Judge cannot be sustained. We find considerable strength in the submission of the learned counsel for the appellant that there was no sufficient light at the time of occurrence and the assailants could not have been identified by the prosecution witnesses. According to the prosecution version, there were two sources of light namely, moon light and torch light. It is the case of the prosecution that the incident took place at about mid night, and that moon had set that night at 12.29 a.m. 13. So far as the fact about setting of the moon on the night of 28/29 this is concerned, it is not disputed that it was the 8th day of Shukla Paksh and moon had set on that night at 0.29 hours. Accordingly, if it is found established that the incident took place before or about this time, it may be and that there was enough light for recognising the assailants. 14. However, there are a number of circumstances which clearly go to show that the incident took place at least a couple of hours after mid night and there could have been no moon light at the time of the occurrence. According to Smt. Savitri (P.W. 2) the deceased had taken his meals between 8 and 9 in the night and Dr. B.D. Mangal (P.W. 4) had stated in his post mortem report that stomach was empty and has deposed that it takes six hours for such a meal to clear of from the stomach. According to 'Modi's Medical Jurisprudence and Toxicology, 20th Edition, the food which is usually taken by an Indian does not leave the stomach completely within six and seven hours. after its ingestion. These facts clearly show that the murder would have taken place about 6-7 hours after the deceased took his meals. According to 'Modi's Medical Jurisprudence and Toxicology, 20th Edition, the food which is usually taken by an Indian does not leave the stomach completely within six and seven hours. after its ingestion. These facts clearly show that the murder would have taken place about 6-7 hours after the deceased took his meals. Since it is obvious from the statement of Smt. Savitri that the food was. taken between 8 and 9 in the night the murder would appear to have taken place sometimes between 2 and 3 a.m. 15. The fact that this occurrence took place at about 2 a.m. would appear also from an important circumstances and it is that the first information report was not lodged until 7-15 a.m. If this murder had taken place at about 12. in night, there would appear to be no sufficient reason why the informant Jagdish would not go to lodge the report much before the time he actually did. 16. In this connection it may also be noted that be sided the deceased there were two other injured persons closely connected with the informant, namely his mother Avadh Rani and sister Savitri and it is quite unlikely, that if the occurrence had taken place at about 12 in the night, the informant and others would have waited for about four and half hours before taking any action. to lodge the report and arrange for medical aid to these injured persons. It is more likely that the incident really took place at about 2-3 a.m. and it might have taken the informant an hour. or so in scribing the report and leaving for the police station. 17. There is yet another circumstances which clearly indicates that there was no moonlight at the time of occurrence and the occurrence would have really taken place later in the night about 2 a.m. and it is the attempt of the prosecution to introduce torch in the hands of one of the accused, Bharosey. If it were true that there was moon light and it was enough for recognising. either the accused or the deceased and the injured, it would have been wholly unnecessary for the accused Bharosey to flash his torch light for -identifying his Victim. If it were true that there was moon light and it was enough for recognising. either the accused or the deceased and the injured, it would have been wholly unnecessary for the accused Bharosey to flash his torch light for -identifying his Victim. The prosecution version that he was flashing his torch light is only indicative of the fact that there was either no moon light or even if there was, it was not sufficient for recognising the victim or the assailants even they were known to each other, the witnesses would have found the same difficulty in recognising the assailants, as the assailants found in recognising the victims. 18. These circumstances leave no doubt that there was no moon light or, in any case, no sufficient moon-light at the time of occurrence. 19. The defence witness Babu (D.W.1) has also supported the defence version that it was dark at the time of occurrence and the incident took place later than mid night at about 2 a.m. In view of these facts and circumstances noted above it must be held that the incident took place between 2 and 3 a.m. and not at mid night and further that there was no moon light at the time of occurrence or, in any case, there was no sufficient moon light for persons to recognise each other. 20. The only other source of light suggested by the prosecution is the alleged torch light. It is stated by the prosecution witnesses Savitri (P.W. 2) and Jagdish (P.W. 3) that the accused Bharosey was flashing his torch. The learned Sessions Judge has accepted this light to be sufficient for the purpose of recognising the accused. However, we level to agree with the learned counsel for the appellant that this torch light, even if it was there, could not be sufficient for recognising the assailants. The assailants were admittedly not flashing torch light on their own faces and there could be no reason for them to do so. According to the prosecution witnesses, accused Bharosey was flashing his torch towards the deceased Chhandi. We are unable to accept the reasoning of the learned Sessions Judge to the effect that such a flashing of torch would produce diffusion of light which would be sufficient to recognise the persons. According to the prosecution witnesses, accused Bharosey was flashing his torch towards the deceased Chhandi. We are unable to accept the reasoning of the learned Sessions Judge to the effect that such a flashing of torch would produce diffusion of light which would be sufficient to recognise the persons. When a torch light is flashed towards other persons, they could not be in a position to see the face of the person who is flashing the torch. We meet with a common sight on the road when we go on our vehicle and another vehicle comes from the opposite side with full beam on and the resultant binging thereof. In such a situation it is absolutely impossible to recognise the person sitting behind the source of light. 21. In this present case, if we accept the statements of the prosecution witnesses, it would appear that the light was being flashed towards the deceased Chandi. These witnesses were also sleeping or standing just adjoining Chandi and, as such, the light was obviously being flashed towards them also and, in this circumstances, it could not have been possible for them to identify the assailants. 22. It is not suggested. that there was any other source of light or any other factor which could enable the witnesses to identify the assailants. It is not stated that any of these assailants were shouting or giving out the names of each other or were exhorting in any particular manner mince both the sources of light are found to be either non-existent or not sufficient and it is not disputed that, but for these lights it was bark at the place of occurrence, the necessary inference would be that there was no light for the witnesses to identify the assailants. 23. It is suggested that the accused bore enmity with the deceased Chandi and it was for this reason that they wanted to murder him. However, there would appear to be no immediate motive for the accused to assault the deceased. The only motive suggested is that Hari Ram brother of accused Lachhi, was murdered and Chandi was accused in that case but he was acquitted and it was for this reason that the accused wanted to murder him. However, according to the first information report, the cause of this enmity arise about one year before the date of occurrence. The only motive suggested is that Hari Ram brother of accused Lachhi, was murdered and Chandi was accused in that case but he was acquitted and it was for this reason that the accused wanted to murder him. However, according to the first information report, the cause of this enmity arise about one year before the date of occurrence. It is not alleged or otherwise stated that there was any immediate cause for provocation and it is difficult to believe that, for the alleged reason, which occurred one year earlier the accused will wait such a long time for taking revenge. Accordingly it is difficult to believe that there was really any motive or provocation. for the accused to commit this murder. (See State v. Mata Prasad 1983 Alld. D.M. 386. 24. Motive is really a double edged weapon. If there are no plausible reasons to connect the offence with the alleged motive, as is the case, here, it could be a reason for the witness, so closely connected with the deceased as Smt. Savitri (P.W. 2) and Jagdish (P.W. 3) to falsely connect the accused with the offence merely on the basis of imagination and conjectured. It appears to be so in the present case. 25. In this connection, it is important to note that the prosecution has not examined independent witnesses who were admittedly available in the present case for establishing necessary circumstances which might have connected the accused with this crime. It is, no doubt, true that the prosecution may examined such witnesses as they may consider proper but at the same time they can not withhold the material witnesses without sufficient reasons, without attracting an attack from the defence that, if they had been produced, their statements may have been adverse to the case of the prosecution. In our view, although the prosecution has the right to choose its witnesses, they should not, in the normal course, appropriate to themselves the sole duty of judging what quantum what quality of evidence should be sufficient for bringing home any particular charge against a particular accused. In our view, although the prosecution has the right to choose its witnesses, they should not, in the normal course, appropriate to themselves the sole duty of judging what quantum what quality of evidence should be sufficient for bringing home any particular charge against a particular accused. If the prosecution take upon themselves the responsibility of deciding to keep back a certain number of witnesses who were alleged to have been eye-witnesses of the occurrence, then they take the responsibility on themselves if the evidence they produce is found insufficient or if there is criticism on behalf of the defence that the prosecution have withheld other evidence from the court through oblique motive, or if the argument on behalf of the defence raised that if other witnesses had been produced, then they would have given a different version of the incident from that suggested or deposed to by the witnesses who have actually been produced in the case (See Lal Singh and another v. State, 1958 A.L.J. 327. 26. In the present case, we are of the opinion, on a consideration of facts and circumstance, that the prosecution would have examined the other injured, Avadh Rani and some of the other independent witnesses, who admittedly came there. According to Jagdish (P.W. 3) Channu, Munni, Maate, Ram Da, Ghan Shyam and Kailash had come there and, after their arrival only, the assailants ran away. Savitri (P.W. 2) has also stated that other villagers also came there and, on their shouting, the assailants ran away. These witnesses could have, at least, given independent proof as to the time of the occurrence and as to whether there was sufficient light. In case there was sufficient light, these independent witnesses could have also proved as to whether the accused were the assailants, through identification parade, if they were not known from before. These witnesses could have also deposed as to whether Jagdish, Savitri or Avadh Rani had name the accused as assailants soon after the incident Avadh Rani, widow of the deceased, was also injured and was a material witness for corroborating the prosecution version. However, for reasons best known to the prosecution, these witnesses have not been examined. These witnesses could have also deposed as to whether Jagdish, Savitri or Avadh Rani had name the accused as assailants soon after the incident Avadh Rani, widow of the deceased, was also injured and was a material witness for corroborating the prosecution version. However, for reasons best known to the prosecution, these witnesses have not been examined. Failure of the prosecution to examined these witnesses must, in the circumstances of this case, be field to be not justified and we are compelled to infer that, if they had been examined, they may have not supported the prosecution version or their statement may have been inconsistent with the statement of Savitri (P.W. 2) and Jagdish (P.W. 3). 27. The testimony of these two alleged eye-witnesses taken itself, does not inspire confidence. It is quite surprising that Jagdish (P.W. 3) would have escaped without any injury if he were really present at the time of occurrence. This witness would like us to believe that, even though he was present nearby, had identified the assailants and was running towards the village shouting, none of these assailants tried to assault him or stop him from running away. If the assailants were really the persons, who were known to the witnesses, they would not have been left him untouched. This witness is said to have been sleeping near the cot of his father, mother and sister and he also got up along with them. If it were really so, there was absolutely no reason who the assailants would not attack him also. It may again be pointed out, even at the gist of repetition, that this witness did not lodge the report at the police station earlier than 7.15 a.m. If he was really present in the village, there is no reason why he would not have taken care of the injured and arranged for their medical aid immediately around mid night or 2 a.m. rather than wait for it till about 4.30 a.m. These facts lend support to the defence version that this witness was not in the village and had gone to his mama's place and it was only after coming back from there that he scribed the first information report from imagination and deliberation and went to the police station. 28. 28. In order to explain the circumstance regarding Jagdish being not assaulted, the prosecution developed a story, during evidence, to the effect that at the time of assault on Chandi, his widow Avadh Rani fell over him in order to gave him and thereafter Smt. Savitri also did so. No such averments find place in the first information report and this appears to be an after thought. 29. The manner of assault described by these two witnesses also appears to be quite unlikely notwithstanding the fact that Smt. Savitri is an injured witness. Both the witnesses have given out that they woke up after hearing the cries of their father and then they saw the assailants assaulting their father. It is not the case of the prosecution that the deceased woke up before he was assaulted and shouted. He has got only two injuries on his person which could have been caused by only two Kulhari blows. He was sleeping at the time this assault was made and, therefore, he could not have shouted until assault had already been made on him. In these circumstances it was not possible for these two witnesses to have seen two blows being given to the deceased. Further, according to P.W. 2 Savitri, her mother had woken up before she did. If that were so, then in all probability, Chandi, would have not both these blows before this witnesses woke up. Further it is stated by these witnesses that Avadh Rani and Savitri were attacked whom they fell over the deceased to save him but there is no such averment in the F.I.R. 30. Moreover, it is rather unlikely that the deceased would have been able to cry or shout after getting the blows on his neck and ches. The post mortem report would indicate that the first injury resulted in cutting of mandible and buccal cavity, laryns, cesophagus, traches a and bronchie were also cut. The injury would appear to be below he vocal cords and, in such circumstances, speech could not have been possible (vide, Modi's Medical Jurisprudence and Toxicology, 20th Edn. at page 275). It seems more likely that these three persons, the deceased and the injured, were assaulted almost simultaneously and, in the confusion, these witnesses could not really understand how the assault had taken place or who the assailants were. 31. at page 275). It seems more likely that these three persons, the deceased and the injured, were assaulted almost simultaneously and, in the confusion, these witnesses could not really understand how the assault had taken place or who the assailants were. 31. The facts and circumstances, noted above, do create much doubt about the prosecution version. There are other circumstances too. There appears to before in the contention of the learned counsel for the appellant that the F.I.R. is of doubtful veracity in as much as it appears to have been lodged with delay and suffers from other intrinsic infirmities too. According to the prosecution, the incident took place at about 12 mid night and we have found the time to be abound 2 a.m. The informant Jagdish (P.W. 3) did not leave for police station until 4.30 p.m. The only explanation, given by him, for not starting for the police station earlier is that the took take in scribing the report and that the did not leave earlier for fear of the accused. F.I.R. is a short document written on little over one copy book page. This could not have taken much time unless the witnesses were not sure of the identify of the assailants or as to the manner of assault. So far as the alleged fear of the accused is concerned, there would appear to be no justification for it. If we believe the prosecution version, the assailants were not interested in harming him as they did not make any attempt to assault him. Moreover, if there was such a fear, it could not have ended early in the morning at 4.30 a.m. Twelve midnight or 2 a.m. could have been no more dangerous than 4.30 a.m. if fear was the cause of not going to police station. This delay could be explained for any of the two reasons only one of these reasons could be that the informant Jagdish (P.W. 3) was, in fact, not present in the village and he scribed it, after returning from his Mama's house in a village 4 or 5 miles away. The only other reason could be that he was not sure of the identify of the assailants and took time of scribe F.I.R. on the basis of imagination or conjectures. None of these explanations could be helpful to the prosecution. 32. Considered intrinsically, the F.I.R. suffers from material infirmities. The only other reason could be that he was not sure of the identify of the assailants and took time of scribe F.I.R. on the basis of imagination or conjectures. None of these explanations could be helpful to the prosecution. 32. Considered intrinsically, the F.I.R. suffers from material infirmities. According to F.I.R. the assailants were armed with kulhari and Ballam. But, according to Panchayatnama (Ext. Ka-8), the assailants were armed with lathi also. According to injury report of Smt. Avadh Rani, injuries, 2, 4 and 8 could be caused by 'blunt weapon'. Neither Ballam nor Kulhari are blunt weapons. 33. It was contended that these injuries could have been caused by ballam being used as lathi. However, there is no evidence of their being so used. Unless there are circumstances to indicate to the contrary, the normal presumption should be that the weapons would be used as they are meant to be (See Lal Singh v. State (supra). It may that this circumstances by itself would not be sufficient to doubt the veracity of the prosecution version but, coupled with other material circumstances, this can not be brushed aside lightly. 34. Indeed there are other circumstances also which creates doubt in regard to the F.I.R. According to the Investigating Officer, Sevak Ram Yadav (P.W. 5) the report was lodged at the police station and he started investigation immediately. However, in the relevant column of the Panchayatanama (Ext. Ka-8) relating to "JAANCH KA SHJRU KIYA JANA", the time mentioned is 10-15 a.m. This indicates that the report might have been lodged around this time. 35. In fact, the Panchayatnama (Ext. Ka-8) is also a very suspicious document. Both, in the columns relating to date and time of making report and starting investigation and also in the column relating to date and time of sending the dead body for medical examination, there are cuttings over the time mentioned therein. Further, as already noted, in the document (Ext. Ka-8) lathi is also mentioned as the weapon of assault besides kulhari and Barchi, lathi is not mentioned in the F.I.R. 36. On a careful consideration of the facts and circumstances, we are of the opinion that the prosecution has failed to prove their case against any of the accused beyond reasonable doubt. The learned Sessions Judge would appear to have recorded the finding of guilt on the basis of suspicion. On a careful consideration of the facts and circumstances, we are of the opinion that the prosecution has failed to prove their case against any of the accused beyond reasonable doubt. The learned Sessions Judge would appear to have recorded the finding of guilt on the basis of suspicion. But suspicion, however, grave can not take the place of proof (See State of U.P. v. Sukhbasi Lal, 1985 SCC Crl. 387. The appeals are liable to be allowed. 37. We accordingly allow the Appeal No. 1722 of 1983, Ram Kishan v. State and 1978 of 1983, Lachchi and another v. State and set aside the conviction and sentence. The appellants are on bail. They need not surrender. Their bail bonds are cancelled. 38. The Appeal No. 1669 of 1983, Bharosey v. State abates as already ordered.