G. D. DUBE, J. ( 1 ) THIS appeal has been preferred by Nuran, Chunna, Tika Ram, Lal Singh and Ramesh against the judgment and order of First Additional District and Sessions Judge, Budaun, convicting and sentencing Nuran under section 147, I. P. C. to six months R. I. and the rest of the appellants under section 148, I. P. C. to one years R. I. Each of the appellants have further been sentenced to life imprisonment and R. I. for five years under sections 302 and 307 both read with section 149, I. P. C. and to two years R. I. under section 201, I. P. C. ( 2 ) OUT of the five appellants, Lal Singh and Ramesh are dead. Their appeals have abated. ( 3 ) AMAR Singh (P. W. 1), appellants Chunna and Nuran are residents of village Khakroli, Police Station Rajpura, district Budaun, Several litigations had taken place between them and, therefore, the two appellants were on inimical terms with the complainant party. In the morning of 23. 6. 1978, Amar Singh and his servant Rama Shanker (P. W. 2) were working in the field of Amar Singh. Appellants Nuran and Ramesh had assaulted Rama Shanker. Amar Singh had fled away from the spot. Amar Singh, Rohan Singh and their servant Rama Shanker had gone to the police station on a bullock-cart for lodging report about the morning incident. At about 7. 30 p. m. the same day, the three along with Roop Ram and Har Prasad were returning to the village. Amar Singh, Roop Ram and Har Prasad had their torches. When at about 9 p. m. , the bullock-cart reached near the filed of Khairati, five persons surrounded the bullock cart. The three persons possessing torches flashed their torches and saw that Ramesh had a country-made pistol, Nuran had a lathi, Tika Ram had a Ballam, Chunna had a Kanta and Lal Singh had a double barrel gun in their hands. The three persons got down from the bullock-cart and the five assailants started assaulting them. A fire was also opened towards the three persons causing injuries to Rohan Singh. Rohan Singh died on the spot. Roop Ram and Har Prasad had gone a little away from the place of occurrence. On the alarm of the victims, Bodhan and Ram Singh arrived from the village flashing their torches. A fire was also opened towards the three persons causing injuries to Rohan Singh. Rohan Singh died on the spot. Roop Ram and Har Prasad had gone a little away from the place of occurrence. On the alarm of the victims, Bodhan and Ram Singh arrived from the village flashing their torches. Meanwhile the assailants picked the dead-body of Rohan Singh and went towards south. Amar Singh and Rama Shanker had received injuries. Amar Singh did not lodge report in the night due to fear. In the morning, he went to the police-station and lodged the report at 6. 15 a. m. on 24. 6. 1978. ( 4 ) THE investigation was taken up by Man Singh Sirohi (P. W. 7 ). He interrogated Amar Singh at the spot. He found Rama Shanker at the house of Amar Singh. He was sent for medical examination. At the place of occurrence, the Investigating Officer found a blade of spear, two cartridges case one hand grenade and one pair of Chappal. He had also inspected the torches of the witnesses during investigation, he came to know that the dead body of Rohan Singh is hanging from a tree in the grove of Karan Singh. He went to that grove and found that the dead-body was hanging up side down with its legs tied with a Dhoti in a branch of tree. He prepared a recovery memo. He also conducted the inquest proceedings and sent the dead-body to the mortuary for post-mortem. After conducting other usual investigation, the Investigating Officer submitted charge-sheet against the appellants. ( 5 ) THE dead body of Rohan Singh was carried by Jaiprakash Constable to the mortuary. The postmortem was conducted by Suresh Chandra Naugoria at 2 p. m. on 25. 6. 1978. The doctor has found 8 ante-mortem injury on the person of deceased. The details of these injures are noted in the judgment of the court below. It is not necessary to repeat them here. The doctor had opined that the injures could be caused by sharp edged weapon like Kants and the contusions by a blunt weapon like Lathi and the other by gun shot. ( 6 ) THE two injured Amar Singh and Rama Shanker had been examined by Sr. Shiv Prasad P. W. 5 at 5 p. m. and 4. 45 p. m. respectively on 24. 6. 1978. ( 6 ) THE two injured Amar Singh and Rama Shanker had been examined by Sr. Shiv Prasad P. W. 5 at 5 p. m. and 4. 45 p. m. respectively on 24. 6. 1978. The doctor had found the following injures on the person of Amar Singh: 1. Lacerated wound on the front of skull 6. 5 c. m. above and behind the root of nose size 2. 5 cm. x 1/2 cm. margins irregular direction Antero posterior. 2. A contusion on the top of left shoulder size 3 cm. x 1 cm. colour-bluish. 3. A conclusion on the Rt. knee joint size 3 cm. x 1 cm. colour bluish. All injures caused by blue weapon. Type of Seapon not dangerous. Time passed about 314th day. ( 7 ) THE doctor noted in the injury report Ext. Ka-5 that this injured had been brought at 8 a. m. in the hospital, but on account of emergency case in out patient department the examination was done at 5 p. m. During examination the doctor gave the opinion that those injuries could be caused at the time of occurrence. ( 8 ) ON the person of Ram as hanker the following injures were found: 1. A gun shot would on the left side of chest 3 cm. below the clavicle. Size 3/4 cm. circular depth 1 cm. 2. A gun shot would on the cleft between thumb and index finger size 3/4 cm. circular. Metal could not be felt underneath. 3. A contusion on the left side of back size 7 cm. x 1 cm. colour reddish. 4. A contusion on the top of left shoulder size 6 cm. x 1 cm. colour reddish. ( 9 ) THE doctor came to the conclusion that injuries 1 and 2 could be caused by fire arm and 3 and 4 by a blunt object like lathi. The doctor has stated that as the contusions were red in colour they could not be more than 12 hours later. About the gun shot wound the doctor had stated that it could be caused at the alleged time of occurrence. ( 10 ) THE prosecution had examined Amar Singh P. W. 1, Rama Shanker P. W. 2 and Ram Singh P. W. 3 as eye witnesses. P. W. 4 and P. W. 5 were doctors. P. W. 6 Amar Singh had registered the case. ( 10 ) THE prosecution had examined Amar Singh P. W. 1, Rama Shanker P. W. 2 and Ram Singh P. W. 3 as eye witnesses. P. W. 4 and P. W. 5 were doctors. P. W. 6 Amar Singh had registered the case. P. W. 7 Man Singh Sirohi was the Investigating Officer. ( 11 ) THE accused had pleaded not guilty to the charges. They had got produced any witness in defence. ( 12 ) THE learned Sessions Judge had not believed Ram Singh P. W. 3. He had, however, believed the two witnesses Amar Singh and Rama Shanker and held the appellant guilty of the offences. ( 13 ) IT was argued by the learned counsel for the appellant that learned Sessions Judge had erred in believing the prosecution story. A suggestion had been made by the defence to the eye witnesses that Rohan Singh was carrying on business of opium smuggling. Since he had committed some fraud in the quality of opium. The smugglers had killed him and also hanged his body, up side down with the feet Lied in the branch of a tree. It was urged that this sort of hanging was possible only to teach a lesson to those persons who commit fraud with the smugglers. It was also urged that Rama Shanker was unconscious till he had been examined by the doctor in the Hospital. This has been admitted by Rama Shanker. Learned counsel for the appellants had doubted the correctness of injury report of Amar Singh (P. W. 1 ). Our attention was also drawn to the fact that one witness was named as R06p Ram in the First Information Report. The Investigating Officer had found that there was no person named as Roop Ram in the village. Thereafter, a change was made that Roop Ram had alias as Raja Ram. ( 14 ) THE injuries of Amar Singh and Rama Shanker reveal a different story. Dr. S. P. Bahal had examined Amar Singh at 5 p. m. Hence by the time of the examination twenty hours had passed from the time of occurrence. The doctor had found that the contusions were bluish in colour. The doctor has also stated that the contusions start becoming red after twelve hours. Dr. S. P. Bahal had examined Amar Singh at 5 p. m. Hence by the time of the examination twenty hours had passed from the time of occurrence. The doctor had found that the contusions were bluish in colour. The doctor has also stated that the contusions start becoming red after twelve hours. He had also stated that the contusions of Ram a Shanker could not be more than twelve hours old as their colours were red. However, he opined that the gun-shot injuries could be caused between 8 and 9 p. m. in the night between 23rd and 24th June, 1978. This version of the doctor had not been challenged by the prosecution. In view of the statement of Dr. S. P. Bahal, the contusions found on the person of Rama Shanker could be at the best caused on 24. 6. 1978 at 4. 45 a. m. The prosecution had not alleged that Rama Shanker was assaulted at 4 a. m. or 5 a. m. on 24th June, 1978. The consistent case of the prosecution is that Rama Shanker was first of all assaulted in the morning of 23rd June, 1978 and second time is between 8. 00 p. m. and 9. 00 p. m. same day. If these contusions were caused in the morning incident, then their colour should have been more bluish than the contusions found on the body of Amar Singh. If these contusions pertain to the injuries caused at about 9. 00 p. m. on 23rd June, 1978, then their colour should have been also bluish as was found in the injuries of Amar Singh. The prosecution has not come forward with any explanation as to how the two contusions were caused on the body of Rama Shanker in the morning of 24. 6. 1978. The above facts, therefore, cast a shadow of doubt on the version of Rama S hanker. ( 15 ) THE First Information Report states that at the Lime of occurrence Har Prasad and Roop Ram were standing at a little distance. Anyone of these witnesses have not been examined. The prosecution examined a witness residing at a distance of about five years from the place of occurrence. The learned Sessions Judge has rightly doubted the presence of this witness at the spot. Anyone of these witnesses have not been examined. The prosecution examined a witness residing at a distance of about five years from the place of occurrence. The learned Sessions Judge has rightly doubted the presence of this witness at the spot. ( 16 ) IN the First Information Report, the names of Ram Singh and other witnesses residing in the village have been shown as eye witnesses. This itself speaks that Amar Singh had introduced the names of Ram Singh and other villagers as witnesses after some deliberation that these witnesses may support the prosecution case. ( 17 ) RAMA Shanker has stated that he had received injuries in the incident. His version is not corroborated by medical evidence. This fact itself makes the presence of Rama Shanker at the spot quite doubtful. ( 18 ) AMAR Singh has stated in paragraph 2 of his examination-in-chief that some criminal litigations had taken place between him and appellants Chunna, Nuran and Ramesh. After sometime, a compromise had taken place between Nuran and the deceased. Thereafter, the deceased had helped Nuran in a dacoity case and got him balied out. It was alleged that thereafter a quarrel had taken place between Nuran on the payment of expenses. It was also urged that the buffalo of Nuran had died and it was suspected that Amar Singh had given poison to the animal. This had strained the relations between the two parties. It was stated in this case that Nurans wife had lodged reports on two occasions against Rohan Singh. Copies of these reports had not been brought on record. Even the Head Constable Amar Singh (P. W. 6) was not asked to bring these reports and prove them. Thus, there is no corroborative evidence of Amar Singhs statement that Nurans wife had actually lodged any report. ( 19 ) FROM the statement of Amar Singh, it transpires that the enmity had developed with Rohan Singh and Amar Singh. The persons assaulting the victims were five in number. They had double barrel gun and other arms like Kanta and spear. In view of the aforesaid enmity, the accused could not have spared Amar Singh. ( 20 ) AMAR Singhs injuries are also shrouded in mystery. Dr. S. P. Bahal has stated and mentioned in his injury report (Ex. Ka-S) that he was brought and identified by Vakil Ahmad. They had double barrel gun and other arms like Kanta and spear. In view of the aforesaid enmity, the accused could not have spared Amar Singh. ( 20 ) AMAR Singhs injuries are also shrouded in mystery. Dr. S. P. Bahal has stated and mentioned in his injury report (Ex. Ka-S) that he was brought and identified by Vakil Ahmad. This very Constable had brought Rama Shanker. The Head Constable Amar Singh has stated that Jagat Singh had taken Rama Shanker to the doctor, for examination. The doctor, on the other hand, has written in his report (Ex. Ka-6) that Vakil Ahmad had brought this injured. This anomaly is further heightened by Ext. Kha-3 which was sent to Dr. Naugoria along with other papers for postmortem. The Head Constable mentioned above has clearly admitted that he had not sent this Ext. Kha-3 to the Investigating Officer. Ext. Kha. 3 is a special report. According to Amar Singh, Head Constable this Ext. Kha-3 was sent to the High Officials at the Head Quarter. The Investigating Officer Man Singh Sirohi was not able to explain as to how he received this Ext. Kha-3 and sent it to the doctor alongwith letter of request for postmortem. ( 21 ) THE facts mentioned in the previous paragraph clearly indicate that the report was not lodged at the time as alleged by the prosecution otherwise the Investigating Officer would not have sent the special report to the doctor alongwith a letter of request for post-mortem. We have also seen, above that all the injuries of Ramashanker do not appear to have been caused either in the incident at 9 p. m. or on the morning of 23. 6. 1978. ( 22 ) THE injuries of Amar Singh are also of superficial nature. In the circumstances mentioned have he ought to have received more injuries and could have been the main victim of occurrence. As stated earlier in this judgment the family of Nuran had a suspicion that Amar Singh had given poison to she buffalo. A proved hand grinade was found at the spot. A throw of hand grinade towards Amar Singh would have endangered his life and also fatal. We have therefore, grave doubts about the presence of Amar Singh also at the spot. A proved hand grinade was found at the spot. A throw of hand grinade towards Amar Singh would have endangered his life and also fatal. We have therefore, grave doubts about the presence of Amar Singh also at the spot. ( 23 ) THE prosecution has come forward with a belated explanation as to how the name of Roopram was mentioned in the First Information Report. The Investigating Officer has stated that he had made correction in his case diary and had substituted the name of Rajaram wherever he had written as Roopram. If Roopram had alia of Rajaram then, there was no need to substitute the name of Rajaram. ( 24 ) THE Investigating Officer has clearly stated in his cross-examination that there is no person named Roopram in the village. Consequently this fact also shows that the report is not the outcome of independent thinking of Amar Singh. The explanation given by Amar Singh about Roopram is not acceptable. ( 25 ) IF Roopram and Har Prasad were actually present at the spot then atleast one of them should have been examined as an eye witness. The prosecution had chosen to examine Ram Singh who was residing at the distance of 500 yards from the place of occurrence. The alleged enmity between the accused and the complainant party was not of such a magnitude that the accused would have taken the dead body to a distant place in village and hung it from a branch of a tree. They would have run away. In these circumstances stated by the prosecution they would content by killing Rohan Singh. Moreover, if the version of Ramsingh is correct, then similar several villagers had seen the accused carrying the dead body. In that event the villagers would have collected and started the search of dead body in the very night. No such attempt was made by the villagers or Amar Singh. All these circumstances lend force to the defence contention that the death of Rohan Singh was known in the morning and the whole story was cooked up. This conclusion is fortified by the circumstance that contusion would of Ramashanker appears to have been caused in the early morning of 24th June, 1978. There was a clear allegation that Ramashanker was also involved in the opium business. He was at resident of Gonda. This conclusion is fortified by the circumstance that contusion would of Ramashanker appears to have been caused in the early morning of 24th June, 1978. There was a clear allegation that Ramashanker was also involved in the opium business. He was at resident of Gonda. He has admitted in his cross-examination that he had got 20 bighas of land in district Gonda. He had a: younger brother aged about 15-16 years. His father was old and was incapable of performing agricultural operation. Despite all these odds he had gone to Badaun for service in a village at the house of Rohan Singh. Ordinarily any person placed in the family circumstance of Ramashanker would not have gone to a faraway district at Budaun for service as a agricultural labourer. ( 26 ) FOR the reasons mentioned above we find that the prosecution story was not acceptable. The prosecution had not come forward with clean hand. The learned Sessions Judge had therefore, erred in believing the prosecution story. ( 27 ) THE appeal is allowed the judgment and order of the lower court is set aside. Appellants Nooran, Chunna and Teekaram are acquitted of the charges levelled against them. They are an bail. Their bail bonds are cancelled and sureties discharges. They need not surrender. Appeal allowed. .