G. D. DUBE, J. Appellants Banarasi and Hittru have been convicted under Section 302 and 302 read with Section 34, I. P. C. respectively and sen tenced to undergo imprisonment for life by Third Addl. Sessions Judge, Jaunpr. Aggrieved by this order they have preferred this appeal. 2. In the first information report lodged by Nebu Lal Harijan at 6. 10 a. m. on 7-2-1978 it was alleged that a long standing dispute was existing between him and his pattidar Banarasi appellant. About 5 days before occur rence Banarasi and Smt. Dhanji had started constructing a house. The father of the reporter intervened and stopped them from making construction. On account of this incident Hittu, son- in-law of Smt. Dhanji came to the house of reporter and threatened his father with dire consequence. It is alleged that at about 11 in the night between 6th and 7th February, 1978 Nebu Lal PW 1, his father (Fakir), grand mother and sister were sleeping in the Osara of the house. A Dibri was burning in the Verandah as usual. At about 11 p. m. Banarasi, Hittu, Pujan, Male Ram, Milan and Ramnain came armed with Lathi and Ballam and started assaulting Fakir with fists and kicks. On his alarm the persons sleeping nearby awoke. Thereafter the accused dragged Fakir by catching hold of his legs. Banarasi said to his componion that this person (Fakir) had stopped his house and he should be killed. He inflicted Ballam blow in the stomach. On the alarm raised by the family members Ram Adhar, Shobhan, Jiywan, Sidhu and several others came flashing their torches. Accused ran away towards south. A local doctor Gulab was called. He gave first aid and bandage on the injuries of Fakir. Fakir died on his way to the hospital. Thereafter Nebu Lal lodged this first information report in police station Sarpataha, district Jaunpur. 3. When the report was lodged the station officer of police station Sarpatha was not present at the police station. He received the papers in village Sarai Mohaddi. He started for the place of occurrence. He took the dead body of Fakir in his possession and conducted the inquest proceedings. Thereafter the dead body was sent to the mortuary alongwith necessary papers for post-mortem. The post-mortem was conducted by Dr. R. P. Rastogi, P. W. 2 at 12. 30 p. m. on 8-2-1978. He started for the place of occurrence. He took the dead body of Fakir in his possession and conducted the inquest proceedings. Thereafter the dead body was sent to the mortuary alongwith necessary papers for post-mortem. The post-mortem was conducted by Dr. R. P. Rastogi, P. W. 2 at 12. 30 p. m. on 8-2-1978. Doctor found a stitched wound 5 cm obliquely placed on the lower part mid line of abdomen 4 cm. below the umblicous. After removing the stitches the doctor found that margins were clean cut, both ends were also clean cut and abdominal cavity deep having its direction downwards outwards and towards right side. The stomach con tained 3- 4 ounces digested food. The small intestine has cut through and through at two places. The mesentric blood vessel was cut at one place. Facial matter was coming out from the cut portion of the intestine. The doctor opined that the death was caused due to shock and haemorrhage as a result of above injuries. No abnormality was deteited in any other part of the body. 4. The Investigating Officer had found a Debri in the Osara. He had also inspected the torches of the witnesses and prepared memos. At the place of occurrence a pair of Chappals (Ext. 5) was found. The Investigating Officer had prepared the site plan. Banarasi, Ramayan and Hittu were arrested from brick- kiln at about 3. 00 p. m. on 8-2-1978. On the pointing out of Banarasi a spear Ext. 4 was recovared from a hut near brick-kiln. The Investigating Officer had prepared a site plan regarding the place of recovery. The other accused were also arrested after on. After completing the investigation charge-sheet was submitted against the appellants and the others. 5. Trial proceeded against the two appellants, and Pujan, Male Ram, Milan and Ramnain. The prosecution examined Nebulal P. W. 1, Ram Adhar, P. W. 2, Sidhu Yadav P. W. 4 as eye witness. P. W. 2 Dr. R. P. Rastogi had conducted the post-mortem examination. P. W. 10 Gulab Chand as stated above has given first aid to the deceased. Krishna Bali P. W. 11 is the investi gating officer P. W. 9 Bachcha Singh is the recovery witness of the spear Ext. 5. 6. The accused had pleaded not guilty to the charges. They had not produced any evidence. P. W. 10 Gulab Chand as stated above has given first aid to the deceased. Krishna Bali P. W. 11 is the investi gating officer P. W. 9 Bachcha Singh is the recovery witness of the spear Ext. 5. 6. The accused had pleaded not guilty to the charges. They had not produced any evidence. After assessing the evidence of the witnesses the learned Additional Sessions Judge found only the two appellants guilty of the offence punishable under Section 302, I. P. C. Banarasi was found guilty under Section 302 simpliciter whereas Hittu was convicted under Section 302 with the aid of Section 34, I. P. C. The other accused Male, Milan, Pujan and Ramnain were given benefit of doubt and acquitted accordingly. 7. The learned counsel for appellant has assailed the conviction of appellants on several grounds. It was urged that a single blow was inflicted on the deceased. The post-mortem report does not indicate any other injury. It was urged that according to the prosecution story the accused had first assaulted Fakir with fists and kicks and thereafter they had dragged him outside his house. It was argued that if the appellant had an intention to kil then they would not have assaulted Fakir with fists and kicks so that persons sleeping near his cot may get up and see the occurrence. It was urged that in the circumstances they would have inflicted the solitary blow and run away. There was no necessity of dragging Fakir out of the house, then inflict ing spear blow. It was urged that no mark of abrasion was found on the body of the deceased on account of dragging. 8. The learned Sessions Judge has placed reliance upon the statement of Gulab Chand (P. W. 10 ). He has mistook him as a full fledged doctor and referred him as Dr. Gulab Chand in his judgment. This witness has admitted in his cross-examination that he has a drug licence only. He has not taken any education in medicine or surgery. He has stated in his cross-examination that he had only applied some medicine and cotton to the injuries and sent the injured to the hospital for further treatment. This witness had not stated that he had stitched the wound. He has not taken any education in medicine or surgery. He has stated in his cross-examination that he had only applied some medicine and cotton to the injuries and sent the injured to the hospital for further treatment. This witness had not stated that he had stitched the wound. The prosecution is not coming forward within any evidence as to when and where the solitary wound was stitched and who had performed this act. This itself indicates that somebody had an occasion to handle the wound of the deceased. Whether he had conducted some opera tion in that process or had simply stitched the wound is not coming forward from any evidence of the prosecution. The prosecution is completely silent about it. The learned Sessions Judge has missed to notice this aspect of the matter. 9. In view of the above circumstance, it is different for us to place any reliance on the post-mortem report, it cannot be said with certainty that the death was caused as a result of punctured wound on the abdomen. It can also not be said with certainty that the deceased had died as a result of the injuries caused on the abdomen. It is possible that the act of stitching by some unknown person before the death of Fakir might have accelerated the process of death. 10. The investigating Officer had adopted a very queer procedure of obtaining a certificate (Ext. Ka-11) from Gulab Chand (P. W. 10) that he had treated the deceased before sending him to the hospital. 11. The statement of Gulab Chand was sufficient. There was no necessi ty of obtaining the certificate (Ext. Ka-11) 12. The manner of occurrence as stated by the prosecution witnesses, has been believed by the learned Sessions Judge. The learned Sessions Judge has failed to notice that, according to the prosecution story, the deceased was dragged by holding his legs. In this process, theoridic part of his body must have been dragging on the ground. In that situation, there ought to have been some abrasion on the back. The sign of dragging also ought to have been present on the spot. The clothes worth by the deceased would have been smeared with earth on account of dragging. The doctor conducting post mortem found one Kurta and one Sweater one the dead body. In that situation, there ought to have been some abrasion on the back. The sign of dragging also ought to have been present on the spot. The clothes worth by the deceased would have been smeared with earth on account of dragging. The doctor conducting post mortem found one Kurta and one Sweater one the dead body. The Investiga tion Officer has not noted in the inquest report that these Kurta and Sweater were smeared with earth. This was a strong circumstances which ought to have been present if there was a truth in the prosecution story. 13. There Is another lacunae in the prosecution story. No blood was found on the spot. The dead body was found at point IV shown in the site-plan (Ext. Ka-18 ). It has been urged by learned counsel for the State that the blood had soaked in the clothes of the deceased. The deceased had been kept on a Kathri. The blood was found en this Kathri. The above explana tion was not very satisfactory. Keeping in view the nature of injuries, the blood ought to have been found on the spot where stab wound was inflicted with spear. In the processes of dragging, the Kurta and sweater would have relied towards the shoulder side. The injured portion would have been bare. In that circumstances in all probability, blood should have been found on the spot where the injuries were inflicted- The absence of blood at the spot also makes the case of the prosecution very doubtful. 14. The prosecution has come forward with such a story which is not at all believable. If the assailants had an intention to kill, then they would not have first of all assaulted Fakir with fists and kicks so that the persons sleeping near Fakir would get up and see the assailants. They would not even drag Fakir outside the house. A spear blow would have been inflicted while Fakir was fast asleep and the assailants would have run away unnoticed by any witness. The manner of occurrence, as allged by the prosecutions does not stand the test of probabilities. The prosecution story on scrutiny appears to be most improbable and only a creation of some person who had an opportunity to cook the story. Such a cooking of the story was probable. The report had been lodged after a lapse of seven hours. The manner of occurrence, as allged by the prosecutions does not stand the test of probabilities. The prosecution story on scrutiny appears to be most improbable and only a creation of some person who had an opportunity to cook the story. Such a cooking of the story was probable. The report had been lodged after a lapse of seven hours. During this process, the maker of the report could have some advice as to how to lodge report as to implicate the accused persons. 15. The learned Sessions Judge has disbelieved the prosecution story as against Pujan, Maley Ram, Milan Ram Nain. Since the prosecution story about these four accused has been disbelieved, then the story about Banarasi and Hittu ought to have been examined with great caution. 16. The site-plan (Ext. Ka-13) shows that a mud wall had been raised between the houses of the maker of the report and the accused. The construc tion, which is said to have been stopped by the deceased has been shown by figure VII in the site plan. It is situated towards West of the house of Smt. Dhanji. It appears that there was a partition between the appellants and the complainant. Nebu Lal (P. W. I) has admitted in paragraph 9 of his cross-examination that in the Panchayat held between the parties, the panches had got this Kachcha wall constructed fifteen to sixteen days before the occurrence. After construction of this Kachcha wall, there was no occasion for Fakir to protest against the construction shown at point VII and stop it with force. Keeping in view this aspect of the matter, we find that the very genesis of the occurrence is doubtful. 17. Considering the circumstances of the case, we find that the evidence of the prosecution was not at all reliable. The learned Sessions Judge has erred in convicting and sentencing the appellants. Both the appeals should, therefore, be allowed. 18. In the result, both the appeals succeed and are allowed. The judg ment and order of the Jawer court are set aside. The appellants are acquitted of the charges levelled against them. They are on bail. They need not surrender. Their bail bonds are cancelled and sureties discharged. Appeals allowed. .