JUDGMENT I. S. Mathur, J. 1. Sessions Trial No, 515 of 1978 and Sessions Trial No. 621 of 1978, arising out of the same crime No. 245 of 1978, Police Station Amroha, District Moradabad, have been disposed of by the learned Sessions Judge, Moradabad by a common judgment dated 16-2-1979 in Sessions Trial No. 515 of 1978 appellant Jumma alongwith Buddhan and in Sessions Trial No. 621 of 1978 accused Kalua were charged under section 302 read with section 34 IPC and section 323 read with section 34 IPC. The learned Sessions Judge has acquitted accused Buddhan and Kalua of both the charges. Appellant Jumma alone has been convicted under sections 302 and 323 IPC and sentenced to life imprisonment under the first count and rigorous imprisonment of one year under the second count. This appeal by Jumma is directed against the said judgment and order. 2. The prosecution case is that accused Jumma and deceased Hamidullah were sons of one Buddhan by different wives. Informant Raunaq Ali (PW 5) is the son of the deceased. Accused Kalua was said to be brother- in-law of Jumma and Buddhan was said to be his associate. There was a dispute between accused Jumma and deceased Hamidullah over a Kotha, belonging to their father, and it was ultimately taken by Hamidullah on payment of Rs. 300/- to his father. This caused annoyance to appellant Jumma and he threatened the deceased with dire consequences a day before the incident. On 15-6-978 at 8.00 A.M. the informant (PW 5) Raunaq Ali and his father, Hamidullah deceased, were returning to their house on their bullock cart after manuring their field. When they reached the field of one Abdul Hamid, which was earlier a grove, they were assaulted by all the three accused with lathis: On their cries, PW 1 Zahid, PW 4 Ramzani and PW 7 Alauddin came to the scene of occurrence and reprimanded the accused who escaped Hamidullah succumbed to his injuries. Leaving the dead body of his father, informant PW 5 Raunaq Ali lodged First Information Report (Exhibit Ka-4) at the police station Amroha, three miles from the place of occurrence, at 10.15 a.m. First Information Report was scribed by Head Constable PW 8 Charan Singh who also prepared the report (Exhibit Ka-5). 3. Leaving the dead body of his father, informant PW 5 Raunaq Ali lodged First Information Report (Exhibit Ka-4) at the police station Amroha, three miles from the place of occurrence, at 10.15 a.m. First Information Report was scribed by Head Constable PW 8 Charan Singh who also prepared the report (Exhibit Ka-5). 3. The investigation of the case was taken up by PW 9 S. I. Raj Pal Singh who happened to be present at the police station. He recorded the statement of Raunaq Ali, who was then sent for medical examination. On medical examination PW 2 Dr. Ajai Pal Singh found the following injuries on the person of PW 5 Raunaq Ali :- 1. Oblique lacerated wound size 4 cm x 1/2 cm x skull deep on the median plain of scalp 5 cm away from forehead hair line. Under observation. 2. Contusion size 6 cm x 2 cm on the dorsal aspect right fore-arm 3 cm below the right elbow joint. 3. Contusion size 3 cm x 2 cm on the dorsal aspect right forearm 4 cm below injury no. 2. 4. Contusion, size 16 cm x 4 cm on the lateral aspect of left thigh 13 cm below the anterior, superior iliac spine. 5. Oval abrasion size 1 cm x cm on the lateral aspect of left leg 12 cm below the left knee joint. 6. Oval abrasion size 1 cm x 3/4 cm on the lateral aspect of left leg 11 cm below the injury no. 5. According to Dr. Ajai Pal Singh, all the injuries were simple and were fresh and were caused by blunt weapon. He prepared his report (Exhibit Ka-1). 4. The Investigating Officer PW 9 S. I. Raj Pal Singh went to the spot and prepared a panchayatnama (Ex. Ka-2). He also prepared the papers Exhibits Ka-6, Ka-8 and Ka-9 and also memo regarding recovery of blood stained 'parala' (Exhibit Ka-3). A site plan (Exhibit Ka-10) was also prepared by him. The dead body of deceased Hamidullah was sent for post-mortem with PW 6 constable Kripal Singh. On autopsy PW 18 Dr. S. P. Upal found the following ante-mortem injuries :- 1. Contusion cm 2 x 1 cm on the left part of lower lip. 2. Lacerated wound 2 1/4 cm x 1/2 cm x skin deep on the chin. 3. The dead body of deceased Hamidullah was sent for post-mortem with PW 6 constable Kripal Singh. On autopsy PW 18 Dr. S. P. Upal found the following ante-mortem injuries :- 1. Contusion cm 2 x 1 cm on the left part of lower lip. 2. Lacerated wound 2 1/4 cm x 1/2 cm x skin deep on the chin. 3. Lacerated wound 3 cm x 3 cm x skin deep on the left shoulder top. 4. Lacerated wound 2 cm x 1 cm x skin deep on the left hand palm in the web between 4th and 5th finger, 5. Lacerated wound 4 cm x 1 cm, muscle deep on the back of middle of right forearm: 6. Contusion 8 cm x 5 cm on the front of right shoulder and arm. 7. Contusion 16 cm x 12 cm on the front and side of right side chest upper half. 8. Contusion 20 cm x 17 cm on the left side chest on the front part. 9. Lacerated wound 9 cm x 4 cm x bone deep on the front of middle of right leg. 10. Lacerated wound 4 cm x 2 cm x bone deep on the front of upper- third of right leg. 11. Lacerated wound 2 cm x 1 cm x skin deep on the dorsum of right foot. 12. Lacerated wound 3 cm x 1 cm x bone deep on the front of lower third of left leg. 13. Lacerated wound 3 cm x 1 cm x bone deep on the front of middle third of left leg. On internal examination Doctor found that 4th and 5th ribs under injury no. 7 and 6th and 7th ribs under injury no. 8 were fractured. Right lung was lacerated in the middle while left lung was lacerated in the lower portion. Stomach was empty. Bladder contained about 3 ounces of urine According to the Doctor death was caused due to haemorrhage and shock as a result of ante-mortem injuries. He prepared the post-mortem report (Exhibit ka-12). After completing the investigation the Investigating Officer submitted charge sheet against all the three accused. 5. All the accused denied the allegations about their complicity in this alleged murder. The appellant admitted that he was step-brother of Hamidullah and that they were living separately for the last 8 or 10 years. He prepared the post-mortem report (Exhibit ka-12). After completing the investigation the Investigating Officer submitted charge sheet against all the three accused. 5. All the accused denied the allegations about their complicity in this alleged murder. The appellant admitted that he was step-brother of Hamidullah and that they were living separately for the last 8 or 10 years. He denied that Kalua was his brother-in-law and Buddhan was his associate. He also denied that there was any quarrel with Hamidullah in regard to the purchase of the Kotha from his father. According to him, he has been falsely implicated due to enmity and because his cattle trespassed in the fields of the prosecution witnesses. Similar statements were also made by accused Buddhan and Kalua. 6. Prosecution examined 10 witnesses in support of their case, PW 1 Zahid, PW 4 Ramzani, PW 5 Raunaq Ali and PW 7 Allauddin are said to be eye witnesses. PW 3 Dr. Ajai Pal Singh has proved the injuries on the person of PW 5 Raunaq Ali and PW 10 Dr. S. P. Uppal has proved the post-mortem report. PW 3 Ishtiyaq is the witness of Panchayatnama. PW 6 constable Kripal Singh deposed about taking the dead body for postmortem and PW 8 constable Charan Singh is the scribe of the First Information Report. PW 9 S. I, Raj Pal Singh is the Investigating Officer. The accused examined DW 1 Vinod Behari Lal, Advocate, in defence to prove an affidavit, said to have been filed by PW 4 Ramzani to the effect that accused Buddhan was not involved in the case. 7. We have carefully considered the arguments of the learned counsel for the appellant and the learned AGA and scrutinized the evidence and we are clearly of the opinion that the prosecution has failed to prove the case against the appellant beyond reasonable doubt and the judgment and order of the learned Sessions Judge can not be sustained. To being with, it may be noted that, even if, it were found to be correct that the appellant was involved in this crime, he could not have been legally convicted under section 302 IPC. To being with, it may be noted that, even if, it were found to be correct that the appellant was involved in this crime, he could not have been legally convicted under section 302 IPC. When two or more accused are charged under section 302 read with section 34 IPC and all but one are acquitted, the remaining accused can not be legally convicted under section 302 IPC simplicitor in the absence of proof of exact nature of injuries caused by each accused. It can not be postulated in such circumstance that this one accused caused all the injuries. Where common intention is not proved, the prosecution must establish the nature of injuries caused by each accused and more so when the other accused have been given benefit of doubt and acquitted. In such circumstance, depending on the nature of injury caused or the weapon used, the conviction could at best be under sections 323, 324, 325, 326 IPC as the case may be, Haul v. State of U. P., AIR 1968 SC 728 . 8. In the Supreme Court's case, referred to above, two accused were charged under section 302 IPC read with section 34 IPC and one of them was acquitted in appeal. It was held by the Supreme Court that, in a case where common intention is not proved, the prosecution must establish the exact nature of the injuries caused by each accused and it can not be presumed that the remaining accused only caused the fatal injury. On the facts established in that case Supreme Court held that the appellant was liable to be convicted under section 325 IPC only and his conviction under section 302 IPC can not be sustained. In the present case also, as has been noted above, two of the three accused, namely Buddhan and Kalua have been given benefit of doubt by the learned Sessions Judge and have been acquitted. The charge against all the three accused was framed under section 302 IPC read with section 34 IPC and under section 323 IPC read with section 34 IPC. There is no state appeal against their acquittal, It would appear that no common intention to commit the alleged crime has been proved in this case. There was no simplicity charge against the appellant under section 302 IPC. There is no state appeal against their acquittal, It would appear that no common intention to commit the alleged crime has been proved in this case. There was no simplicity charge against the appellant under section 302 IPC. The post-mortem report indicates that two injuries namely injury nos.7 and 8 proved to be fatal in as much as they resulted in the fracture of 4th, 5th, 6th and 7th ribs. According to PW 10 Dr. S. P. Uppal, the death resulted on account of injuries 7 and 8. There is no evidence at all to suggest that these two injuries were caused by this appellant. In these circumstances, the appellant could have not been convicted under section 302 IPC. Even if it were found that he was involved in this crime, the conviction could have been under section 325 IPC only. 9. However, on the basis of evidence on record, it cannot be said, beyond reasonable doubt, that this appellant was at all involved in this crime. On scrutiny of the evidence, we find most glaring material infirmities going to the very root of the prosecution case. In the first place, the prosecution has failed to establish any motive.According to the prosecution, the alleged motive was the controversy regarding a Kotha belonging to the father of the appellant and the deceased. It is said that the deceased had taken this Kotha from his father on payment of Rs. 300/- but this was resented to by the appellant and that there was quarrel a day before the incident when the appellant threatened the deceased with dire consequence. However, the admission of the PW 5 Raunaq Ali, who is the son of the deceased, negatives the case of the prosecution. He has clearly admitted in his cross-examination that there was a panchayat in regard to this Kotha a few days before the incident and it was settled that the Kotha be given to the deceased in lieu of payment of Rs. 300/-. It is further admitted by him that appellant Jumma was also present in this panchayat and he too was agreeable, along- with the 'panches' that the Kotha be given to the deceased. It is further admitted by him that, after payment of Rs. 300/-, his father had already taken possession of this Kotha. 300/-. It is further admitted by him that appellant Jumma was also present in this panchayat and he too was agreeable, along- with the 'panches' that the Kotha be given to the deceased. It is further admitted by him that, after payment of Rs. 300/-, his father had already taken possession of this Kotha. PW 1 Zahid has also admitted in his cross- examination that it was settled, on the intervention of some persons, that the Kotha be given to the deceased on payment of Rs. 300/- and further that, besides Hamidullah none else was prepared to take this Kotha. Since the dispute regarding Kotha had amicably been settled and it is specifically admitted by PW 5 Raunaq Ali, son of the deceased, that the appellant himself was agreeable to this settlement, no question of any dispute regarding Kotha remained and that could not be a motive for this murder. It is specifically admitted by PW 5 Raunaq Ali that there was no other motive for this murder. The absence of this motive must be found to be a material circumstance against the case of the prosecution 10. It is true that motive is not always relevant and looses its significance when there is direct reliable evidence. It is also true that it is not necessary for the prosecution to allege any motive. However, where motive is suggested, it must be proved by the prosecution because it then becomes relevant to enquire whether the pattern of the crime fits in the motive. In other words, it is not necessary for the prosecution to allege any motive and if there is reliable direct evidence, absence of motive will not adversely affect the prosecution case but. where the prosecution alleged motive, it must prove it and absence of satisfactory proof is liable to cast a grave doubt as to the correctness of the prosecution versions-State of U. P. v. Hari Prasad, 1974 SCC (Cri) 203, Dabar Singh v. State of Punjab, 1275 SCC (Cri) and Bishan Das v. State of Punjab 1975 SCC (Cri) 145. However, in the present case, as noted above, the prosecution has come with a positive allegation in the first information report regarding Kotha dispute being the motive but it has failed to establish the same. However, in the present case, as noted above, the prosecution has come with a positive allegation in the first information report regarding Kotha dispute being the motive but it has failed to establish the same. This fact, considered along with the other facts and circumstances, leads to the inevitable inference that the pattern of the crime does not fit in the alleged motive and as such, is positive infirmity in the case of prosecution. 11. This is not all. The prosecution case suffers from many more equally grave infirmities. Another such glaring infirmity is the attempt of the prosecution to shift the place and time of occurrence. The prosecution came with a very specific case that the incident took place in the erstwhile grove of one Abdul Hamid, which, according to PW 5 Raunaq Ali, is at a distance of 10 paire' from the village. He has explained that one paira means two paces. According to this version, the incident took place at about 20 paces from the village. However, PW 5 Raunaq Ali has, himself, admitted in his cross-examination that this incident took place half a mile from Amroha when he was coming back from Amroha and that Amroha is 3-3/1/2 miles from his village. It may be worthwhile to extract the exact statement made by him in this regard at page 37 of the paper book ; "Rabi ki katai hone ke bad barsat hone tak mal bachne ke Iiey Amroha ley jate hai. Ghatana ke samay tak barsat suru nahi hui thee. Amroha me Budh ko bazar lagta hai. Budh ke din hamare gaon se anaj kee jade gadiyan Amroha jati hai aur rat ko Amrohon me hee ruk jati hai aur dusre din subah andhere me hee aapne gaon ko chal dete hai. Yah ghatana jisme mere aur mere bap ko chot aaye Amroha se aadha mil chalne par hua. Gadi se ham gaon ke taraf aa rahe the. Hamara gaon Amroha se 3, 3 1/2 mil hai aur Abdul Hamid ka bag jisme ped kate gaye hamare gaon se 10 pair hai. Do kadam ka aek paira hota hai." This statement leaves no doubt as to the correctness of the defence version that no incident took place at the spot or at the time where and when it is said to have taken place and that the incident took place somewhere else during dark hours. Do kadam ka aek paira hota hai." This statement leaves no doubt as to the correctness of the defence version that no incident took place at the spot or at the time where and when it is said to have taken place and that the incident took place somewhere else during dark hours. This specific suggestion has been made in para 4 of the cross-examination. The unequivocal statement of PW 5 Raunaq Ali to the effect that they started for the village from Amroha during dark hours and that incident took place half a mile from Amroha leaves absolutely no doubt that PW 5 Raunaq Ali had gone to Amroha alongwith bis father, Hamiduallah, deceased, and that this incident took place within half a mile from Amroha. It is also clear from this statement that he started from Amorha in the dark hours. It is, therefore, quite likely that someone attacked him and his father during the dark hours, when they were on their way back from Amroha. and the incident did not take place either in the grove of Abdul Hamid or at 8 A. M. as alleged by the prosecution. 12. This inference would appear to be supported from the other facts and circumstances also. Although strenuous effort would appear to have been made by the prosecution to prove, through alleged eye witnesses, that the incident took place at 8.00 A. M. in the grove of Abdul Hamid, there are reasons to believe that it was too early in the morning much before 8 A. M. and none of the alleged eye witnesses were really present or saw anything. PW 5 Raunaq Ali, has himself admitted in the cross-examination, that at the time he and his father were assaulted, there was only one person who was cutting grass and there was none else. This shows that occurrence, in fact, took place much before 8 A. M. and also excludes the presence of the other alleged eye witnesses. This inference also finds support from medical evidence. The postmortem report shows that there was 30 ounces urine in the bladder. The villagers normally rise early and attend to natural calls. If it were true that the incident took place at 8 A. M . This inference also finds support from medical evidence. The postmortem report shows that there was 30 ounces urine in the bladder. The villagers normally rise early and attend to natural calls. If it were true that the incident took place at 8 A. M . it was quite unlikely that bladder would have contained 30 ounces urine, It appears, from these facts and circumstances that the incident took place some where else and at a time earlier than the time villagers usually rise and that could, in all probability, be dark hours of the morning. 13. Shifting of place of occurrence is a serious matter and must necessarily cast a grave doubt as to the correctness of prosecution version. (Matlab Ah v. State of U. P. 1985 ACrR 18), If place of occurrence is different, there could be no question of alleged eye witnesses seeing anything. 14. The statements of the witnesses also do not otherwise inspire confidence and the inherent inconsistencies and contradictions appearing therein caste a grave doubt about their having seen anything whatsoever, in regard to this crime. All the remaining witnesses, namely PW 1 Zahid, PW 4 Ramzani and PW 7 Allauddin clearly appear to be just chance witnesses who have failed to give any plausible explanation about their presence at the place of occurrence. PW 1 Zahid has stated that he was cutting grass about a furlong from the filed of Abdul Hamid. But, in his statement under section 161 CrPC, he had stated, that he was cutting grass in the field of Abdul Hamid. It is specifically admitted by him that it was just a coincidence that he was cutting grass at that place at that point of time. He has also admitted that there is no fix place for him to cut grass. He has admitted that he does not have either his house or field near the alleged place of occurrence. It is further stated by him that he saw this occurrence from a distance of one furlong, though later on he gave out the distance to be 100- 125 paces. According to him, accused Buddhan did not take part in the assault and he thereby contradicted his statement given under section 161 CrPC. He also contradicted the statement of PW 5 Raunaq Ali, according to whom even Buddhan assaulted him and his father. According to him, accused Buddhan did not take part in the assault and he thereby contradicted his statement given under section 161 CrPC. He also contradicted the statement of PW 5 Raunaq Ali, according to whom even Buddhan assaulted him and his father. All these facts and circumstances indicate that this person is merely a chance witness ; and even otherwise his testimony does not inspire confidence- The same is the case with other alleged eye witnesses PW 4 Ramzani has also admitted that he does not have any field near the alleged place of occurrence, He stated that he had gone in the vicinity of the place to dig out sugarcane but admitted that usually 4-6 people go to do this job but stangely on that day he was all alone. According to him, he saw all the three accused assaulting the deceased and PW 5 Raunaq Ali and thereby contradicted PW 1 Zahid. He stated that he witnessed the occurrence from 250 yards and, according to him, Hamidullaha, deceased, was driving the bullock cart while, according to other witnesses, it was PW 5 Raunaq Ali who was driving it. It seems difficult to believe that a person could recognize assailants from a distance of 250 yards. This, in fact, is a witness who does not seem to have any compunction in making false statements. On his own admission, he was convicted in a case under section 193 IPC and sentenced to fine in the present case, he filed an affidavit (Exh. Kha-1), a fact proved by defence witness D. W. Vindo Bihari Lal, Advocate to the effect that Buddhan had not taken part in this assault but, in his statement in court, he denied having filed any such affidavit. It is very difficult to place any reliance on such a witness who is not only a chance witness but who, on his own admission, has been making a false statements in court. 15. The only other alleged eye witness, besides informant PW 5 Raunaq Ali, namely PW 7 Allauddin, is also clearly a unreliable chance witness. He had admitted that he does not have any field near the alleged place of occurrence and it was only by coincidence that he had gone to graze his cattle on that day. He has admitted that normally children go out to graze cattle. He had admitted that he does not have any field near the alleged place of occurrence and it was only by coincidence that he had gone to graze his cattle on that day. He has admitted that normally children go out to graze cattle. According to his statement in his cross-examination, he saw the occurrence from 250 Pairse' i.e, from about 500 paces and further that he could see only upto a distance of 5-10 paces. It is not understandable as to how this person could really see anything happening at a distance of 500 paces even if he were present at the place where he states to be. He has also stated that accused Buddhan has been falsely implicated in this case and that he was not there amongst the persons who assaulted the deceased and PW 5 Raunaq Ali. 16. The only remaining witness is the informant PW 5 Raunaq Ali. Much stress has been laid on the fact that he an injured witness and his testimony must be given much weight. It is true that the testimony of an injured witness must be given much weight but this cannot be said to be inviolable rule or a legal principle which could be made applicable without testing it on some objective considerations. Where the circumstances would indicate that the incident had taken place in the dark and the injured could have not been able to identify the assailants or he was assaulted in such a manner that he could not have had an opportunity to do so or that injuries are such due to which he might not have remained in his normal senses, his testimony cannot be accepted without close scrutiny. Before such a testimony is accepted all such circumstances must be excluded which might indicate that the injured witness could not have identified the assailants. In the present case, we have already noted above that the incident appears to have taken place in the dark hours and at a place away from the alleged place of occurrence. It does seem to be quite probable that this injured witness PW 5 Raunaq Ali, may not have been in a position to identify his assailants and it is only by imagination that he implicated the appellant and others. It does seem to be quite probable that this injured witness PW 5 Raunaq Ali, may not have been in a position to identify his assailants and it is only by imagination that he implicated the appellant and others. His testimony in regard to the other accused namely, Buddhan and Kalua, has already been disbelieved by the learned Sessions Judge and, on a scrutiny of the evidence, we tend to agree with him. If PW 5 Raunaq Ali could make a mistake in regard to Buddhan and Kalua who he knew quite well then in all probability, he might have made the same mistake about the appellant Jumma also. As has already been noted above, this witness has contradicted his earlier version, given in the first information report, and in his examination-in-chief as to the place of occurrence and it appears to be unbelievable in regard to the time also. Further, he has stated that he had gone to manure the field alongwith his father and was returning from there but, at the same time, he also admitted that he was coming back from Amroha in the dark hours of the morning and incident took place only half a mile from Amroha which will be a distance of about 3 miles from the place where the occurrence was alleged to have taken place. Though, in the beginning, he stated that he was returning after manuring his field, he contradicted himself in his cross- examination by stating that he was going to manure his field. If he was really going to manure his field, the bullock cart might have been full of manure and necessary implements which were not there, according to his statement. If it were true that he was coming back after manuring then too there must have been necessary implements for manuring the field but he specifically admitted that there was nothing else in the bullock cart and that there was no Khurpa and Phawda. Therefore, this version of going to the field for the purpose of manuring is clearly falsified from the admission of this witness itself. 17. The statements of the witnesses in regard to the manner of assault also cast grave doubt as to the correctness of their testimony and consequently in regard to the prosecution version. Therefore, this version of going to the field for the purpose of manuring is clearly falsified from the admission of this witness itself. 17. The statements of the witnesses in regard to the manner of assault also cast grave doubt as to the correctness of their testimony and consequently in regard to the prosecution version. According to PW 4 Ram Zani, all the three accused, namely appellant Jumma, Buddan and Kalua assaulted the deceased and Raunaq Ali but, according to PW 1 Zahid, only Jumma and Kalua were assaulting the deceased and Rauaq Ali and Buddhan was standing at a distance. In his cross-examination also this witness stated that Buddhan did not take any part in this assault and the Investigating Officer wrongly noted in his statement that Buddhan also participated in this assault. Further, according to PW 4 Ramzani, the assailants were assaulting the deceased and Raunaq Ali from infront and behind but, according to PW 5 Raunaq Ali all the accused stood on the wheel of the bullock cart in the southern side and assaulted from there. 18. To sum up, therefore, the prosecution has failed to prove their case against the appellant beyond reasonable doubt. There was no motive for the appellant to commit this crime. The testimony of the alleged eye witnesses, namely PW 1 Zahid, PW 4 Ramzani and PW 7 Allauddin does not inspire confidence. Besides being chance witnesses, their statements suffer from material contradictions in regard to the place and time of occurrence. Even on their admission, they were at such a distance from the alleged place of occurrence that they could not have seen the occurrence or identified the assailants. The prosecution would appear to have shifted both the place and time of occurrence which is most glaring material infirmity in the prosecution version. All the three accused were charged under section 302 IPC read with section 34 IPC but, on the acquittal of the two accused, the appellant could not have been convicted under section 302 IPC simpliciter without proof of the exact injuries caused by him even if his complicity or the crime has been proved. The acquittal of the two accused Buddhan and Kalua by the Sessions Judge also creates doubt as to the prosecution version. Informant Raunaq Ali knew both these accused Kalua and Buddhan as well as he knew appellant Jumma. The acquittal of the two accused Buddhan and Kalua by the Sessions Judge also creates doubt as to the prosecution version. Informant Raunaq Ali knew both these accused Kalua and Buddhan as well as he knew appellant Jumma. If he could make mistake regarding them, it is quite probable that he might have made mistake in regard to appellant Jumma as well. In fact, the admission of PW 5 Raunaq Ali, who is an injured witness, clearly indicates that the occurrence took place further three miles away from the place where it is alleged to have taken place and the time of occurrence is also dark hours in the morning and that even this injured witness could not have recognised the assailants in the dark hours. In view of the fact and circumstances noted above, this appellant must also be found to be entitled to benefit of doubt. The appeal is accordingly liable to be allowed. 19. The appeal is allowed. The judgment and order of the learned Sessions Judge is set aside and the appellant is acquitted. He is on bail and need not surrender. The personal and surety bonds are discharged. Appeal allowed.