JUDGMENT Mr. G.D. Dube, J. - Mahabir and Sharif were held guilty, convicted and sentenced to three year's under Section 148, I.P.C. and Satyabir and Ram Niwas were held guilty, convicted and sentenced to two years' R.I. Under Section 147, I.P.C. by the sixth Additional Sessions Judge, Meerut. Each of the above four accused further held guilty, convicted and sentenced by the aforesaid Sessions Judge to imprisonment for life under Section 302 read with Section 149, I.P.C. by this order, the present appeal has been filed. Out of the aforesaid appellants, Mahabir and Sharif have died. Hence their appeals have abated. 2. The prosecution alleged that in the night between 18th and 19th May, 1979, Teekam Singh was sleeping at his tubewell situate in village Pachgaon, police station Civil Lines, Meerut. In between 2.30 and 3.00 a.m., Mahabir and Sharif armed with ballam and Satyabir and Ram Niwas armed with tat his arrived. Moonga Singh (P.W. 1) complainant, brother of Teekam Singh was irrigating his field. There was electric bulb light on the tube-well. When Teekam Singh raised an alarm, the complainant Moonga Singh, Mahabir and Lekha rushed to the spot. They saw that the aforesaid four persons along with two unknown persons armed with lathis were assaulting Teekam Singh. After causing serious injuries to Teekam Singh. The assailants ran away. 3. After the occurrence, Mriga Singh took his brother to police outpost, Medical College, Meerut, but his report was not written. Hence he took his brother to the Medical College, Meerut and got him admitted there. After making arrangement for his treatment, he handed over a written report to Ram Kumar Mittal (P.W. 9) at 1.30 p.m. on 19.6.1979. After the case was registered by the Head Constable, the investigation was taken up by Suraj Singh (P.W. 4). The case has been originally registered under Sections 147, 148, 323, 324 and 307 I.P.C. Mriga Singh had died during on 24.6.79 at 11. 15 a.m. His death report was received by Head Constable Tajpal Singh (P.W. 10). Thereafter, this case was converted to one under Section 302, Indian Penal Code. 4. The Investigating Officer had started the investigation on 20.6.1979. He had interrogated the witnesses Mahabir and Lekha on 21.6.1979. He had inspected the site. He had found six teeth of Teekam Singh lying at the spot. He had collected blood stained and plain earth from the spot. 4. The Investigating Officer had started the investigation on 20.6.1979. He had interrogated the witnesses Mahabir and Lekha on 21.6.1979. He had inspected the site. He had found six teeth of Teekam Singh lying at the spot. He had collected blood stained and plain earth from the spot. He found one blood stained cot near the tube-well. He had taken this cot in his possession and aftercutting a piece of the ropes of the cot handed it over in the custody of the reporter. 5. After the death of Teekam Singh in the hospital the inquest proceeding was conducted by a sub-inspector of police at the hospital. The post-mortem of the dead body was conducted by Dr. Vijai Singh P.W. 5 at 2.45 p.m. on 25.6.1979. The doctor had found that this person was 40 years old. He had found 13 injuries on his person. These injuries were almost same which were found by Dr. Virendra Gupta at the time of his examination at 7.05 a.m. on 19.6.1979. This doctor had found following injuries on the person of Teekam Singh : 1. Incised wounds three in numbers i.e. 1/ X " X bone deep over the face head, just above the root of nose trangular in shape, the second was " X " X bone deep 1" left to wound and the third was 1," X 11/6" muscle deep just right to first. Advised X-ray of skull. Oozing of blood present. 2. Traumatic swelling of the nose and bleeding from both nostrils. Advised X-ray. 3. Lacerated wound " X " over right side of face 1 " below eye fresh. 4. Lacerated wound ' X '" muscle deep over left side of face just below eye fresh. 5. Lacerated wound 1" X '/4" bone deep just below the right nostril containing suspected mexilla. Advised X-ray fresh. 6. Lacerated wound " X ?" over the left side upper lip cutting through and through fresh. 7. Lacerated wound 1" X " over the right side of lower lip containing traumatic swelling and deformity of right mandible. Advised X-ray. Just oozing of blood present. 8. Bruise semi lunar in shape over the front of neck containing swelling and sub-contoneous emphysema over the neck, shoulders, arms (both) back and chestand upper part front of chest injury kept under observation referred to surgeon for opinion. The doctor had kept injuries Nos. Advised X-ray. Just oozing of blood present. 8. Bruise semi lunar in shape over the front of neck containing swelling and sub-contoneous emphysema over the neck, shoulders, arms (both) back and chestand upper part front of chest injury kept under observation referred to surgeon for opinion. The doctor had kept injuries Nos. 1, 2, 5, 7 and 8 under observation. Injury No. 1 was opined to be caused by sharp object. Injuries Nos. 2 to 7 were, according to doctor, caused by blunt object. Injury No. 8 was opined to have been caused by strangulation. The doctor who had conducted the postmortem opined that death was caused due to coma resulting from the head injury. The parietal bone was fractured. There was hacmatoma below this injury. The left anterior cornial fossa had also fractured. 6. The prosecution had examined ten witnesses before the Trial Court to substantiate its cast against the appellants. Out of these witnesses P.W. 1 and P.W. 2 were the eye-witnesses. The others were formal witnesses and their role has been already stated above. 7. The accused had placed not guilty to the charge. They had not produced any witness in defence. All the appellants had stated in their statement under Section 313 Code of Criminal Procedure that they had been implicated on account of enmity. 8. The learned Counsel for appellants had assailed the prosecution evidence on three grounds, first, it was urged that there was a strong enmity between parties. There was inordinate delay in sending Teekam Singh to the hospital. It was urged that Teekam Singh had most of the injuries on the head. In such a circumstances any prudent person would not have lost even a single minute to take injured to the Medical College Hospital. It was also urged that probably the injuries of Teekam Singh were noticed in the early morning and that is why a delay had taken place in taking him to the Medical College. It was urged that only partisan witnesses had been examined and so their statements cannot be believed. 9. The learned Counsel for appellants further urged that circumstances of the case do show that on account of injuries Teekam Singh could not have raised any alarm. Therefore there was no possibility of attracting the attention of the witnesses towards him. On account of this fact, it appears the witnesses are saying a tell-tale story. 10. 9. The learned Counsel for appellants further urged that circumstances of the case do show that on account of injuries Teekam Singh could not have raised any alarm. Therefore there was no possibility of attracting the attention of the witnesses towards him. On account of this fact, it appears the witnesses are saying a tell-tale story. 10. We have heard the learned Counsel for the state also. The learned Counsel urged that P.W. 1 and P.W. 2 were only probable eye-witnesses and they have given adequate reasons for their presence at the time of occurrence and these reasons ought to be accepted. 11. All the injuries of Teekam Singh were on neck and head. Injury No. 8 was such an injury which could have been caused by strangulation. Anyone of these injuries 1 to 8 quoted above were such that on receiving it the injured would have not been able to speak. His six teeth were incised in the assault. The prosecution evidence proceeded on this version that when assaulting party attacked him, he raised alarm attracting attention of two eye-witnesses P.W. 1, P.W. 2 and Lekha Singh. Amongst the injuries were strangulation part on the body of Teckam Singh ought to have proceeded before the other assailants assaulted with their weapon. This would be obviously done for over-powering Teekam Singh. However, there is no explanation for the injury No. 8 as to how it was caused on the person of Teekam Singh. 12. P.W. 1 has stated in his cross-examination that he was at a distance of 100 yards from the tube-well where Teckam was sleeping. Admittedly Teekam Singh was sleeping when the assault started P.W. 1 has stated that Teekam Singh had told P.W. 1 that he was feeling sleepy, hence he was going to sleep. In this situation Teekam Singh would have rune in sleep within a very short time after lying on the 2 cot. Hence, we have grave doubts, that a person sleening would have been able to raise even any alarm after seeing any one of the injuries. When there were several assailants, then several injuries must have been caused simultaneously. It is also possible that the injury on the lips in which six teeth were incised might have been caused in the first blow. Consequently Teekam Singh could not have been able to utter even a word. When there were several assailants, then several injuries must have been caused simultaneously. It is also possible that the injury on the lips in which six teeth were incised might have been caused in the first blow. Consequently Teekam Singh could not have been able to utter even a word. He would not have been able to shout so loudly that a person standing at a distance of 100 yards could have heard his shouts and then rushed to the spot. 13. However some time would have been taken by P.W.1 in covering the distance of hundred yards after hearing the alarm. By that time the whole assault would have been over and the assailants would have bolted away from the place of occurrence. Considering the above factors we have grave doubts that the P.W. 1 would have been the actual assault. 14. The case of P.W. 2 is worst than P.W. 1. He had stated before the Trial Court that his field was situated at a distance of 150 yards from the place of occurrence. This witness had stated before the Investigating Officer that his field was situated at a distance of 250 yards from the place of occurrence. He had tried to reduce the distance by saying that his field was situated at a distance of only 150 yards. He was not able to give any explanation as to why Investigating Officer recorded the distance as 250 yards. No circumstance has been brought forth by bringing any evidence that the investigating officer had deliberately written the distance as 250 yards. In my view of the matter whether the distance was 150 yards or 250 yards P.W. 2 could not have heard the alarm of the deceased and would not have been able to reach the spot. 15. P.W. 1 Mirga Singh had admitted that the Medical College Hospital was situated at a distance of 10 to 11 kms. from the place of occurrence. He also stated that he alongwith 10 other persons had started for the Medical College Hospital at about 4 or 4.30 a.m. He also admitted that the injured was brought on a cot from the place of occurrence to the village. From the village the deceased was brought on a tractor to - Medical College. from the place of occurrence. He also stated that he alongwith 10 other persons had started for the Medical College Hospital at about 4 or 4.30 a.m. He also admitted that the injured was brought on a cot from the place of occurrence to the village. From the village the deceased was brought on a tractor to - Medical College. Explanation has not been given as to why the P.W. 1, who is the real brother of the deceased, had awaited up to 4 or 4.30 a.m. at the spot. The injuries were quite serious. There was bleeding from both the nostrils and from the injury No. 1, six teeth had been excised in the attack. In such a serious injury no person would have waited up to 4 or 4.30 a.m. The suggestion of the defence that injuries of Teekam Singh were noticed in the morning and that is why P.W. 1 could start with the deceased for the Medical College Hospital at 4 a.m. appears to be correct. 16. The prosecution case was based on the statement of P.W. 1 and P.W. 2 only. For the reasons mentioned above we find that no reliance can be placed upon their testimony. The circumstances of the case do show that probably the injury of Teekam Singh were notice in the morning and thereafter a version was carved out as to who should be implicated and what could be manner of the occurrence. The prosecution version was not worth acceptance. The learned Sessions Judge had erred in convicting and holding the appellant guilty of the offence punishable under Section 302 read with 149, Indian Penal Code, and other Sections of Indian Penal Code. 17. The appeal is allowed. The judgment and order of the lower Court are set aside. Appellants Satya Vir and Ram Niwas are acquitted of the charges levelled against them. They are on bail. 18. Their bail bonds are cancelled and sureties are discharged.