JUDGMENT Mr. S.K. Verma, J. - The appellants have filed this appeal against their conviction under Sections 302/34 I.P.C. and sentence of life imprisonment awarded by the 6th Additional District and Sessions Judge, Bareilly vide Judgment dated 11.9.1979 for the murder of Lakhan. 2. Appellants Lala Ram and Roshan are real brothers. Appellant Manohar is the brother of appellant Roshan's wife. Lakhan the victim of this crime and Hem Raj (P.W. 1) were real brothers and cousins of appellants Lala Ram and Roshan, Dorilal, father of the appellants Roshan and Lala Ram, had purchased an agricultural plot for 700/- jointly with Lakhan but the entire sale proceed was paid by Lakhan. Whenever Dorilal demanded share in the plot, Lakhan asked him to share the price also. Dorilal died about a year after the purchase. Thereafter the two appellants Lala Ram and Roshan who are sons of Dorilal demanded partition of the plot whereupon Lakhan demanded price. The price was not paid and ill-will developed between the two branches of the same family. On 17.4.1977, Lakhan was allegedly sitting at the Chabutara of Kanhal and was talking with Rameshwar (P.W.3). The appellants are said to have come there and asked for partition the field. Lakhan is said to have demanded the price once again whereupon the appellants allegedly got annoyed and brought spear (Roshan), Hansiya (Lala Ram) and Lathi (Manohar) and started assaulting Lakhan. On alarm being raised, Kedar Nath (P.W.2) and one Ganga Ram and others arrived. Hem Raj (P.W.1) the informant of the incident also came there. Meanwhile, the appellants after causing 29 injuries to the deceased fled away from the scene of the crime. Lakhan died shortly thereafter. Hem Raj (P.W.1) proceeded to police station and lodged the First Information Report at 3.10 p.m. on the same day. 3. The usual investigation ensured. A panchayatnama of the dead body was prepared and it was sent for post-mortem. Dr. S.K. Mukhcrjee conducted the post-mortem report on the dead body of Lakhan on 18.4.1977 at 3-30 p.m. and found 29 injuries including 26 incised wounds and three abrasions. The details of it are given in the judgment of the Trial Court. The usual investigation ensured. A panchayatnama of the dead body was prepared and it was sent for post-mortem. Dr. S.K. Mukhcrjee conducted the post-mortem report on the dead body of Lakhan on 18.4.1977 at 3-30 p.m. and found 29 injuries including 26 incised wounds and three abrasions. The details of it are given in the judgment of the Trial Court. In the opinion of the Doctor these injuries could have been caused at about the time of occurrence mentioned in the First Information Report and death could have been caused shortly after the injuries were received and the incised wounds could have been caused with the help of Hansiya (sickle) and spear. 4. After investigation the appellants were charge-sheeted. They pleaded not guilty and claimed false implication. Appellant Lala Ram filed a written statement in which he pleaded that the wife of Hemraj complainant used to visit him and Hemraj suspected that he had illicit relationship with Hemraj's wife. Hemraj, therefore, complained to Roshan appellant and when Roshan replied that he should ask his own wife. The complainant became annoyed and, therefore, when he got opportunity he falsely implicated the appellant. It was also pleaded that deceased Lakhan was a smuggler of opium. Moreover, Lakhan had committed a dacoity alongwith one Jaswant at the house of Babu. Appellant Roshan was doing pairvi on behalf of Babu. Lakhan was a police informer also. It was, therefore. pleaded in defence that Lakhan might have been murdered by his enemies but the appellants were falsely implicated. 5. The prosecution examined P.W.1 Hemraj, P.W.2 Kedar Nath and P.W.3 Rameshwar Dayal as eye-witnesses out of which Kedar Nath and Rameshwar Dayal turned hostile. S.I. Dhanpal Singh Bhati (P.W.4) and Dr. S.K. Mukherjee (P.W.5) were examined as formal witnesses. Khyali Ram and Mahendra Nath were examined as Court witnesses. The appellant examined Naresh Pal Singh (D.W. 1) in the defence. The Trial Court convicted the appellants under Sections 302/34 I.P.C. and sentenced them to life imprisonment as aforesaid. Hence this appeal. 6. We have gone through the record of the Trial Court and have heard learned Counsel for the appellants and the Assistant Government Advocate. It has been urged on behalf of the appellants that the appellant Manohar has not used lathi because there are no lathi injuries on the person of the deceased and there is false implication of Manohar in this case. It has been urged on behalf of the appellants that the appellant Manohar has not used lathi because there are no lathi injuries on the person of the deceased and there is false implication of Manohar in this case. It has also been urged that Hemraj (P.W.1) was not present as per the statement of Naresh Pal Singh (D.W.1) Moreover, he being the real brother of the deceased, the fact that he did not receive any injury nor did he make any attempt to defend his brother, is indicative of his absence at the time of occurrence. Again in the inquest report Hcmraj (P.W.1) is one of the Panches and yet the opinion of the Panches recorded by the concerned police officer is that post-mortem should be conducted to know the cause of death. It has, therefore, been argued that Hemraj has not seen the occurrence otherwise he would have clearly given an opinion that Lakhan was murdered by the appellants with the help of spear, sickle and lathi. It has further been argued that P.W. 2 Kedar Nath an eye-witness, has not mentioned about the presence of P.W. I Hemraj at the time of occurrence. Hence he was not present and he being the solitary witness of the case, there is no reliable evidence against the appellants. It has also been argued on behalf of the appellants that no blood was found on the Chabutra of Kanhai where the major portion of the incident occurred. Hence the probabilities are that the body of the deceased was brought at the alleged place of occurrence after it was found somewhere in the fields and nobody witnessed the occurrence. 7. Hemraj (P.W.1) Kedar Nath (P.W. 2) and Rameshwar Dayal (P.W.3) are the three eye-witnesses examined by the prosecution out of whom Rameshwar Dayal has totally denied having witnessed any such occurrence. Even Kedar Nath has turned hostile. He supported the prosecution version in examination in-chief but in cross examination he deposed that when he reached the place of occurrence he found the victim lying unconscious. He only saw the appellants running away. According to his own statement, he was at Bareilly and left Bareilly for his village at about 12.00 noon and had arrived in his village at about 1.00 or 1.15 P.M. His presence at the time of occurrence in village Biharipur, therefore, becomes doubtful. He only saw the appellants running away. According to his own statement, he was at Bareilly and left Bareilly for his village at about 12.00 noon and had arrived in his village at about 1.00 or 1.15 P.M. His presence at the time of occurrence in village Biharipur, therefore, becomes doubtful. The Sessions Judge, therefore, rightly rejected the testimony of these two eye-witnesses, namely, Rameshwar Dayal and Kedar Nath. There remains only one eye witness whose statement has to be considered. He is Hemraj (P.W.1). He happens to be the real younger brother of deceased Lakhan. He has supported the entire prosecution version. However, in cross-examination, he has admitted that he did not see any lathi blow hitting his brother Lakhan. It has, therefore, rightly been argued from the side of the appellants that even Hemraj has attempted to exclude Manohar from the list of assailants because as per prosecution version Manohar was armed with lathi. The learned Sessions Judge was of the opinion that since injury No. 13, namely three abrasions over an area of 5cm. X 4cm. on the back of left elbow joint could be caused by lathi blow. Manohar cannot be excluded. Dr. S.K. Mehrotra (P.W.5) has, however, opined that abrasions could have been caused due to a fall. We are, therefore, of the opinion that since these abrasions could have been caused by a fall and since the main eyewitness, namely Hemraj did not see any lathi blow hitting the victim, Manohar has been falsely implicated in this case. 8. The learned Sessions Judge has believed the statement of Hemraj and has based the conviction of the appellants on Hemraj's statement. Hemraj has been believed on the ground that he is younger brother of the deceased and he promptly lodged the First Information Report and it is a day light occurrences and his statement is supported by the contents of the First Information Report. However, we find several infirmaties and incongruities in the statement of Hemraj which find no explanation form the prosecution side. In the first place Hemraj is said to have been present at the main door of his house when the incident occurrence. The place of occurrence as per prosecution is the open space just at the back of complaint's house. The distance from the main door of the complaint's house to the place of occurrence is hardly ten or twelve yards. The place of occurrence as per prosecution is the open space just at the back of complaint's house. The distance from the main door of the complaint's house to the place of occurrence is hardly ten or twelve yards. Hemraj (P.W. 1) has admitted that the alarm raised from the scene of occurrence is audible to a person who is at the main door of the complainant's house. He has stated that after hearing the alarm raised by Lakhan and Rameshwar Dayal he reached the place of occurrence. It has to be home in mind that he is real younger brother of the victim. He has admitted that he is a gun licensee. It, therefore, does not stand to reason as to why he did not bring his gun from the house which is hardly 12 yards form the place of occurrence so as to save his real elder brother. 9. The explanation offered by Hemraj is that because the assailants had threatened that if he comes forward to save his brother he would also be killed, he remained standing where he was. He does not say that he was prohibited from going to his own house. The normal human conduct of a reasonably prudent man having gun in his house would be to rush to his house and to bring his gun. It is also important to note that there are 29 injuries on the person of the victim. The assailants would take sufficient time to cause these injuries. During that period a lathi or a gun which was easily available would have been fetched so as to save the victim. It is also important to note that Hemraj has not received any injury. His presence at the time of occurrence, therefore, becomes doubtful. 10. There is one more incongruity between the statement of Hcmraj and the contents of the inquest report. Hcmraj is one of the patches of the inquest report and the opinion of the Panches as recorded in the inquest report is that Lakhan died because of the injuries received by him but there should be a post mortcm for knowing the correct reason. Hcmraj is one of the patches of the inquest report and the opinion of the Panches as recorded in the inquest report is that Lakhan died because of the injuries received by him but there should be a post mortcm for knowing the correct reason. If Hemraj had seen the occurrence and if he had lodged a First Information Report clearly indicating the names of the assailants and their weapons and their roles during the incident and this would have been done at about 3.10 p.m. on 17.4.1977. Hemraj should have mentioned in the opinion of Panches that Lakhan was murdered by the three 'assailants with the help of three weapons assigned to them in the First Information Report. When confronted with this incongruity Hemraj deposed in Paragraph 14 of his cross-examination that he had given the opinion at the time of inquest that Lakhan had received injuries of sickle, spear and lathi blows given lightly. This statement indicates that Hcmraj is not only trying to explain the omission in the opinion of Panches written in the inquest report but that he has also been tutored because the explanation that the lathi blows were given lightly can only be offered after perusal of the post-mortem report which mentions three abrasions on the elbowjoint. It also follows from this omission in the inquest report indicated above that till the inquest report was prepared, the First Information Report was not lodged. The inquest report was prepared at about 5.00 p.m. The First Information Report was, therefore, ante-time. In this contest the fact that special report of this crime did not reach the District Magistrate assumes importance C.W.2 Mahendra Nath, Judicial Assistant or Collectorate, Bareilly has stated on oath that any special report of Crime No. 66 of 1977 of Police Station Bhamaura District Bareilly does not find place in the bundle of April, 1977 maintained in the record room of the Collectorate. He has stated that whenever special report is received, the receiving officer puts his signature on the Dak Bahi. The prosecution did not make any attempt to bring the Dak Bahi in evidence so as to show that though the special report was sent yet it might not have been property maintained at the District Magistrate's office. He has stated that whenever special report is received, the receiving officer puts his signature on the Dak Bahi. The prosecution did not make any attempt to bring the Dak Bahi in evidence so as to show that though the special report was sent yet it might not have been property maintained at the District Magistrate's office. Learned Sessions Judge, therefore, rightly remarked that there is no explanation on behalf of the prosecution about the whereabouts of the said special report nor the prosecution made any effort to trace the special report. The learned Sessions Judge, however, was of the opinion that this circumstance alone should not be fatal for the prosecution. We have already discussed that absence of special report is not the only circumstance to doubt the promptness of the First Information Report. There are other unexplained circumstances leading to the conclusion that Hemraj was not present when the incident occurred. 11. There is one more inconsistency which find no explanation in the prosecution evidence. P.W.1 Hemraj had deposed in paragraph 13 of his cross-examination that when he arrived at the scene of occurrence he saw that this brother Lakhan, the victim of the crime, was lying on the Chabutara of Kanhai and was being assaulted and he was also turning his body from side to side. The assailants were also standing on the Chabutara and were hitting him with the respective give weapons. The fact that the victim had 26 incised wounds of different sizes on his body indicates that the victim must have bled profusely on the Chabutara itself where he was assaulted yet the Investigating Officer did not find any blood on the Chabutara. He found blood on the ground at a short distance from the Chabutara where the dead body was lying. It would, therefore, he difficult to believe Hemraj when the spot position does not tally with the description given by this witness. In 1987 Criminal Appeals Reporter Page 109 (S.C.) (Amar Singh v. State of Punjab) the main eye-witness was the mother of the deceased Piara Singh of that case and according to the statement of the mother of Piara Singh, the assailants had killed Piara Singh at one place and had dragged him inside the room. Blood was recovered from the room but no blood was found in the courtyard where Piara Singh was killed. Blood was recovered from the room but no blood was found in the courtyard where Piara Singh was killed. It was found that the statement of mother of Piara Singh was inconsistent as to the place where Piara Singh was killed and the testimony of the lady was rejected. In the present case also we find that there is the sole testimony of the brother of the deceased and it is inconsistent as to the place where the major assault took place because no blood was found on the Chabutara of Kanhai as per statement of Investigating Officer (P.W.4) Sri Dhanpal Singh Bhati. 12. It may also be noted that the P.W.2 Kedar Nath has stated that Lakhan was found unconscious and was being put on 'Ladhia' (Bullock cart) when he died. Thereafter his body was put near the Chabutara of Kanhai whereas the bullock cart was kept in front of the main door of Lakhan's house. Hemraj (P.W.1) is, however, definite that after he witnessed the occurrence and the assailants ran away he went near his brother Lakhan but found him dead. Thus, the statements of these two witnesses are inconsistent with each other and if the presence of Ladhia is believed even for a moment it becomes highly probable that the victim of this crime was assaulted some where else and was found lying there and was brought infront of his house but because he died his dead body was kept near the Chaubatara of Kanhai where it was found by the Investigating Officer. 13. It would not get out of place to mention that Lakhan had other enemies also. Although Mehraj (P.W.1) has denied all those circumstances about eremities (P.W.2) Kedar Nath has admitted in cross-examination that about one or two years before this occurrence Lakhan had an altercation with Room Singh of village Ghiraula, Room Singh had lodged a report under Section 307 I.P.C. against Lakhan and others. Kedar Nath (P.W.2) was also an accused in that case alongwith Lakhan. Lakhan had also lodged a cross case of that incident against Room Singh. Kedar Nath (P.W.2) has admitted further that Room Singh had an altercation with Lakhan several times. P.W. 2 Kedar Nath has also admitted in paragraph 8 of his cross-examination that one or two years before this occurrence a dacoity had been committed in the house of Babu in his village. Kedar Nath (P.W.2) has admitted further that Room Singh had an altercation with Lakhan several times. P.W. 2 Kedar Nath has also admitted in paragraph 8 of his cross-examination that one or two years before this occurrence a dacoity had been committed in the house of Babu in his village. A named First Information Report had been lodged in that dacoity case against Lakhan and Jaswant brother of this witness. Even Hemraj (P.W.1) has admitted in paragraph 18 of his cross-examination that one Om Prakash had an altercation with Lakhan but nobody was injured yet Om Prakash had lodged a First Information Report under Section 307 I.P.C. against Lakhan. It is, therefore, highly probable that because Lakhan had many enemies. He might have been assaulted somewhere in the fields of the village where nobody saw the occurrence but when Lakhan was found in an injured condition he was brought on a bullock cart but he died while he was being carried on and, therefore, his dead body was kept in the village Abadi and then the police was informed and after consultation with the police a First Information Report was lodged against the appellants. 14. For all these reasons we are of the view that the sole testimony of Hcmraj (P.W.1) does not stand the test of circumstances and probabilities and it is not safe to reply on his statement for convicting the appellants. The appellants arc, therefore entitled to benefit of doubt and are acquitted. 15. The appeal is, therefore, allowed. The conviction of the appellants is set aside. They are acquitted of the charges levelled against them. Their bail bonds are cancelled and sureties discharged.