U. K. VARMA, J, J. ( 1 ) THIS Government appeal is against the judgment and order of Sri Chandra Prakash, Sessions Judge, Pilibhit dated 28. 1. 1978 acquitting the respondents Naseem Ahmad and Sabir of the charge under section 302 read with section 34 of the Indian Penal Code. ( 2 ) THE prosecution case as contained in the First Information Report Ex. Ka-1 lodged by Mohammad Zama Khan P. W. 1, the elder brother of the deceased Chand Babu, is that about 10 A. M. on 28. 11. 1976 the deceased had gone to attend the Urs of Shahji Mohammad Sher Mian. The prosecution witness Shafiq had just informed him that near the tomb of the above saint in the grove of Mohammad Ali C. W. 1, two persons inflicted knife injuries on him causing his death. They had been noticed by Shri Ram P. W. 3 and Abrar P. W. 2. They, out of fear, did not pursue them. Chand Babu before breathing his last had given this declaration that Naseem and Sabir had assaulted him. Mohammad Zama Khan on receipt of this communication went to the above grove and found Chand Babu lying dead. ( 3 ) THE inquest in respect of the dead body was performed by the Sub-Inspector Arjun Singh P. W. 7 who made it over to Constable Ram Singh P. W. 9 at 9. 30 P. M. for being taken to the mortuary. ( 4 ) THE post mortem examinations were conducted by Dr. B. Narain P. W. 8 at 3. 00 P. M. on 29. 11. 1976. The deceased in the post mortem report Ex. Ka. 15 has been shown to be about 25 years of age. The duration of death as a result of the following ante mortem injuries was estimated to be one day. Ante mortem injuries of the deceased. 1. Stab wound 2 cm x 1 cm x right side chest cavity deep, 6 cm inner to right nipple with clean cut margins in the 5th intercostal space, directing backward and medial. 2. Stab wound 3 cm x. 5 cm x left side chest cavity deep 2. 5 cm left in injury No. 1 with clean cut margins in the 5th left intercostal space, obliquely placed directing back ward. 3. Stab wound 1. 2. Stab wound 3 cm x. 5 cm x left side chest cavity deep 2. 5 cm left in injury No. 1 with clean cut margins in the 5th left intercostal space, obliquely placed directing back ward. 3. Stab wound 1. 5 cm x. 5 cm x chest cavity deep, 2 cm below the injury No. 2 with clean cut margins, obliquely placed directing back ward. 4. Stab wound 2 cm x. 5 cm x left side chest cavity deep, obliquely placed just below injury No. 3 with clean cut margins. 5. Stab wound 2. 5 cm x. 5 cm x chest cavity deep in the 9th intercostal space 7 cm below left nipple, obliquely placed with clean cut margins directing backward and downward. 6. Incised wound 1. 5 cm x. 5 cm x. 5 cm in the left thumb and index finger outer part 7. Incised wound 1 cm x. 2 cm x. 5 cm above the injury No. 6. 8. 8. Incised wound 3 cm x. 5 cm x. 5 cm, traversely in the left palm, middle. 9. Incised wound 1 cm x. 5 cm x. 5 cm on middle and front of each digit of left index finger. ( 5 ) ON internal examination Dr. B. Narain found the pleura to be punctured under injuries No. 1 to 5. The chest wall was congested in that area. There was blood in the right chest cavity. Underneath the injury No. 5, the left lung was perforated through and through and a small hole was deciphered in the dia-phragm. The pericardium too was perforated under the injury No. 1. The right auricle and the upper part of the ventricle of the heart were found cut. Under the injury No. 2 there was a small hole in the left ventricle. Under the injuries No. 3 and 4 there were also holes in the left ventricle of the heart. ( 6 ) DR. B. Narain P. W. 8 in his statement opined in the cross-examination that there was as much probability of the injured succumbing to the injuries immediately on sustaining them as his remaining alive till he had told the names of his assailants. ( 7 ) THE prosecution had examined Shafiq P. W. 4, Abrar Hussain P. W. 2 and Shri Ram P. W. 3 as ocular witnesses. ( 7 ) THE prosecution had examined Shafiq P. W. 4, Abrar Hussain P. W. 2 and Shri Ram P. W. 3 as ocular witnesses. ( 8 ) SHAFIQ P. W. 4 on whose information, the F. I. R. was lodged by Mohd. Zama Khan pointed out that he had seen the respondents assaulting Chand Khan from the place where the rice was being cooked. He, Abrar and Shri Ram rushed towards the place of assault. The assailants fled away. Chand Babu had told him that Sabir and Naseem had inflicted the injuries and he should convey this information to the members of his house. He met Mohammad Zama Khan, the brother of Chand Babu who was a peon in the Court. He informed him about the incident and also that he, Abrar and Shri Ram had witnessed it. In the cross-examination he gave out that he had been prosecuted twice or thrice by the police. There were also cases against him under section 109 of the Cr. P. C. and 25 of the Arms Act and that a case of highway robbery and another under section 307, I. P. C. were pending against him and during emergency too he was prosecuted for highway robbery. Sabir and Naseem both inflicted knife injuries. He waited near Chand Khan deceased for two minutes and then left the scene of occurrence. He knew the name of the father of Sabir respondent and also the place where he resided and had told the informant Zama Khan about the same. ( 9 ) ABRAR Hussain deposed that while Sabir was holding Chand Khan by the neck, Naseem inflicted the knife injuries. He challenged the assailants. They could not be apprehended. He went near Chana Babu. He was dead and was not speaking. He, thereafter, went to his house. On being further examined (though objection was raised in this regard), he gave out that he had asked him to convey-to the members of his family that Naseem and Sabir had killed him. In the cross-examination he pointed out that the person who was cooking rice to be distributed did not go to the place of the assault. He knew Chand Babu as he belonged to his mohallah. He identified the respondents from the place where the rice was being cooked. In the cross-examination he pointed out that the person who was cooking rice to be distributed did not go to the place of the assault. He knew Chand Babu as he belonged to his mohallah. He identified the respondents from the place where the rice was being cooked. He also saw them from a distance of four to five steps as they continued to assault till he was within that range. He did not know the parentage of the appellants or the place where they resided. When he had met some constables at the crossing near the grove, he had told them that a murder had been committed in the grove and nothing more. He did not give any information in the Police Station Kotwali although it was on the way to his house. He admitted that he was a history-sheeter. He denied his earlier statement that he did not know the address of the accused and pointed that Sabir belonged to his mohalla. So far as Naseem was concerned, he deposed that no one in his presence had given out his name. ( 10 ) SHRI Ram P. W. 3 pointed that though he had seen the assault, he did not know the assailants from before. The deceased had given out their names to him. He did not remain inside the grove after the incident but left for his house out of fear that he might be assaulted by the Muslims who only were present inside the grove at that time. In his cross-examination it was suggested to him that he had been made witness by the police in fifteen to twenty cases. He could not tell the total number of cases wherein he was a police witness. He also expressed his inability to state about the dimension of the grove wherein the incident had taken place. ( 11 ) MOHAMMAD Ali C. W. 1 stated that some persons had gone to the place from which the shrieks had been heard but he himself did not go. It was at a distance of 100 steps from the place where the rice was being cooked for the tabarrak. He did not see the murder himself. In all six to seven persons were present there. He could not tell their names. They did not inform him, the names of the assailants. The police arrived within half an hour of the incident. He did not see the murder himself. In all six to seven persons were present there. He could not tell their names. They did not inform him, the names of the assailants. The police arrived within half an hour of the incident. In the cross-examination he pointed that he had no recollection whether Shafiq was present there or not. He volunteered that he did not know Shafiq. He also could not say how many persons had gone to the place of the incident. The respondent Naseem was his neighbour. He did not know Sabir. The incident had taken place in the grove of Zilani Saheb which was also in his charge. He was unwilling to appear as a witness because he had not seen the incident. ( 12 ) THE prosecution had examined Pattu Khan P. W. 6 to prove that in his presence the coat and shoe of Naseem respondent had been taken into custody by the 1. 0. who had prepared the recovery memo Ex. Ka. 3. He also gave out that at the pointing of Naseem, the knife Ex. 3 smeared with blood had been recovered from the bush. ( 13 ) THE 1. 0. Arjun Singh P. W. 7 stated that on 30. 11. 1976 he apprehended Naseem near the railway crossing and took into possession his coat Ex. 1 and shoe Ex. 2 as there were blood marks thereon and at his pointing the knife Ex. 3 used in the murderous assault had been recovered. ( 14 ) THE report of the Chemical Examiner does not indicate that there was human blood on the coat of Naseem. The report of the Serologist had not been brought on record to establish that the blood of the same group as on the clothes of the deceased had been found on the coat or shoe of Naseem or on the knife Ex. 3. ( 15 ) THE learned Additional Sessions Judge did not find Shafiq P. W. 4, Abrar P. W. 2 or Shri Ram P. W. 3 to be reliable. According to him Shafiq and Abrar were criminals who could be allured by the police to give any account to win their favour. 3. ( 15 ) THE learned Additional Sessions Judge did not find Shafiq P. W. 4, Abrar P. W. 2 or Shri Ram P. W. 3 to be reliable. According to him Shafiq and Abrar were criminals who could be allured by the police to give any account to win their favour. So far as Shri Ram P. W. 3 is concerned, he had doubted his presence at the scene of occurrence because he found it difficult to believe that he soon after went away out of fear that he was a Hindu and could be assaulted by the Muslims under suspicion. He also appeared to him to be a pocket witness of the police. ( 16 ) DEALING with the evidence relating to occurrence, he has referred to the statement of Mohd Ali C. W. 1 that assault had been made at a distance of 100 steps from the place where the rice was being cooked, that only a few persons were present in connection with the Urs at the tomb of Shahji Mohammad Shet Mian and that he did not positively affirm about the presence of Shafiq P. W. 4 and Abrar Hussain P. W. 2. There is certainly force in his contention that if the place of incident would have been visible from the spot where rice was being cooked, Moham mad Ali C. W. 1 should also have been able to see the assault, and the 1. 0. would not have failed to indicate that fact in the site plan Ex. Ka. 11. ( 17 ) THE Additional Sessions Judge in his judgment has also doubted that the deceased Chand Babu with four injuries in the heart could have survived to make a dying declaration. Besides it cannot be ignored that Abrar P. W. 2 in his examination-in-chief first pointed that when he went near Chand Babu, he had found him dead. The First Information Report does not show that Shafiq P. W. 4 or the other witnesses named in the First Information Report knew the parentage and the place of residence of the accused. The names of the two assailants are only shown to have been mentioned by the deceased. The voters list filed by the accused shows that there were many persons by the names of Naseem and Sabir who could be presumed to be known to the deceased. The names of the two assailants are only shown to have been mentioned by the deceased. The voters list filed by the accused shows that there were many persons by the names of Naseem and Sabir who could be presumed to be known to the deceased. There is thus room for reasonable doubt that the deceased meant to attribute the crime to the respondents more so when in the First Information Report they are not shown 10 have any motive to commit it. ( 18 ) THE Additional Sessions Judge had further found contradictions between the statements of the prosecution, witnesses with regard to the manner of assault. It is clear from the statements of the witnesses dealt with above that they had not given identical statements. Abrar P. W. 2 did not state that both the accused had assaulted. According to Shafiq both had assaulted Chand Babu. Besides, for Shri Ram who did not know the accused, no Test Identification Parade had been held. The inconsistency in the statements of the P. Ws. Shafiq and Abrar and the omission to hold identification parade in respect of Sri Ram could not have been ignored. ( 19 ) THE respondent Naseem Ahmad had denied that any recovery had been made at his pointing. In the absence of evidence that the blood on his articles or on the knife had been found to be of the same group as the blood on the clothes of the deceased, no inference could legitimately have been drawn against the respondents. ( 20 ) THE prosecution, we are of the view, could not show that the findings of the Additional Sessions Judge are perverse or his above inference could not be drawn on the basis of the evidence on record. This being an appeal against acquittal it would not be enough for the prosecution to show that a different conclusion was possible although it has failed in showing that too. ( 21 ) THIS appeal against the acquittal thus has no force and is hereby dismissed. The bail bonds of the respondents are discharged. Appeal dismissed. .