Judgment Surya Prasad, J. 1. This is a criminal appeal against the judgment and order dated 5th September, 1979 passed by the then learned V Additional Sessions Judge, Shahjahanpur in Sessions Trial No. 53 of 1979 State v. Mohammad Jan, and two others, convicting the accused persons under section 302 read with section 34 IPC and sentencing each of them to Imprisonment for Life. 2. The prosecution case briefly stated is that Ata Mohammad son of Altaf Husain, Ballu Kban and Bachchan Khan are residents of village Garhiya Lai Khera, P.S. Katra District Shahjahanpur. The deceased Bunda Khan was also a resident of the same village. On 6-12-78 they had all gone to the Fatehganj market. They were returning from the said market after making purchases. At about 5.00 P.M. they reached the field of Masit Khan. The accused Mohammad Jan, Hasnain and Mamma, who are sons of Mia Jan, are residents of the said village Garhiya Lal Khera. They along with one unknown person emerged from bushes and shrubs. The unknown person had masked his face and was aimed with a country made pistol and a lathi. The accused Mamma, Mohammad Jan and Hasnain were armed with a Gandasa, a Kanta and a gun respectively. They uttered that they would kill Bunda Khan while asking others to stay away. Thereafter they started assaulting Bunda Khan with Gandasa, Kanta and Lathi. The other persons tried to save Bunda Khan whereupon the accused Hasnain asked them to stay away, otherwise they would kill them. They were all unarmed. They were raising alarm while standing. The accused ran away towards south after murdering Bunda Khan. Bunda Khan received serious injuries on his face, neck, head and hands. Ata Mohammad got a report Ex. Ka-1 written, by one Triveni Sahai Misra on his dictation about the incident. He took it to the police station Katra, where he handed it over to the constable clerk Muneshwar Dayal, who on its basis prepared a check report Ex.-Ka-11 and registered a case in the General Diary at serial No. 38, an extract of which is Ex. Ka-12. After registration of the case, its investigation was entrusted to the then S.O. Sri Murari Lal Sharma, who visited the, place of occurrence and prepared the inquest report. He observed necessary formalities and sent the dead body to the mortuary for post-mortem examination. Dr. Ka-12. After registration of the case, its investigation was entrusted to the then S.O. Sri Murari Lal Sharma, who visited the, place of occurrence and prepared the inquest report. He observed necessary formalities and sent the dead body to the mortuary for post-mortem examination. Dr. M.M. Lal conducted the post-mortem examination on the dead body of Bunda Khan and found the following ante-mortem injuries thereon : 1. A large incised wound 20 cm x 8 cm x vertibral column deep running transversely across the right side and front of neck beginning from the back of neck in mid line across the right side of neck upto a point 3 cm to the left of neck above the level of thyroid cartilage, cutting all the muscles and vessels of neck and dividing the third carvical vertibra through and through so that the head is lying loose drooping to one side. Trachea is also cut completely above the thyroid level. 2. Incised, wound 6.8 cm x 1 cm x bone deep from the back of neck slantingly across the right side neck upto angle of mandible upto middle of lower part of face on right side cutting the mandible in several places. 3. Incised wound 9 cm x 1 cm x bone deep transversely across the left side of head 6 cm above the left ear cutting the left parital and frontal bone to the entire depth but the meninges not. injured. 4.Incised wound 10 cm x 1.5 cm x bone deep transversely across the right side head dividing the right ear in two running upto the back of neck cutting the right temporal and occipital bone underneath upto back half of the thickness of bone. 5. Incised wound 2 cm x 0.3 cm x bone deep slantingly along the middle of forehead, 4 cm above root of nose. 6. Incised wound 3 cm x 0.3 cm x bone deep along the middle and front of head meeting injury no. 5. 7. Incised wound 9 cm x 3 cm x muscle deep on the left side neck upper part running slantingly across upto left angle of mandible breaking it in two pieces. 8. Incised wound 6 cm x 2 cm x bone deep on the left side head running transversely across close to ear cutting the ear in two, also cutting the left temporal bone upto half of its thickness. 9. 8. Incised wound 6 cm x 2 cm x bone deep on the left side head running transversely across close to ear cutting the ear in two, also cutting the left temporal bone upto half of its thickness. 9. Nose has been out off almost (hanging by a piece of skin and soft tissues) by several incised wounds, intersecting each other and making wound 4 cm x 4 cm x bone deep (nazal bone and its cirbriform plate broken). 10. Incised wound 6 cm x 1.8 cm x bone deep on the left side of face (slantingly across the middle of the face) cutting the mandible in pieces. 11. Incised wound 1 cm x 0.5 cm x skin deep on the outer part of the right shoulder. 12. Incised wound 6 cm x 2 cm x skin deep on the outer part of left hand at the root of thumb. 3. Upon the internal examination of the dead body the medical officer found esophagus out under injury no. 1. Thick liquid food about 120 grams was present in the stomach and some food in small intestines, faecal matter in large intestines and bladder empty. According to him, weight of heart of the deceased was 220 grams and death was caused due to shock and haemorrhage especially due to ante-mortem injury no. 1. According to the medical officer (PW 2) injury nos. 1, 2, 3, 4, 5, 8, and 10 could have been caused by heavy cutting weapon like Gandasa and the rest of the injuries could have been caused by soft (or light) blow of heavy cutting weapon or by light cutting weapon like Kanta. He also opined that the death of the victim could have been caused on 6-12-78 at 5.00 P.M. that victim would have died immediately after getting injury no. 1, that was, in itself, sufficient to cause death in the ordinary course of nature. He prepared post-mortem report Ex. Ka-3. 4. On the receipt of the post-mortem report and after the completion of the investigation into the case, the Investigating Officer submitted charge-sheet against these accused. The prosecution examined Ata Mohammad PW 1, Dr. M.M. Lal PW 2, Ballu Khan PW 3, Murari Lal Sharma PW 4 and Muneshwar Dayal PW 5 and relied upon certain documents in support of its case. 5. The accused pleaded not guilty. The prosecution examined Ata Mohammad PW 1, Dr. M.M. Lal PW 2, Ballu Khan PW 3, Murari Lal Sharma PW 4 and Muneshwar Dayal PW 5 and relied upon certain documents in support of its case. 5. The accused pleaded not guilty. They have stated that all the allegations levelled against them are wrong and incorrect and that they have been falsely implicated in this case on account of enmity. 6. Having heard the learned counsel for the parties and having considered the evidence on record, the learned V Additional Sessions Judge Shahjahanpur convicted and sentenced the accused vide his impugned judgment and order. Aggrieved, they filed this appeal against the same. We heard the learned counsel for the parties at length and perused the record. 7. All the three accused-appellants are real brothers. Ballu Khan PW 3 and Bachchan Khan are real brothers. Bunda Khan deceased was also their brother. Ata Mohammad PW 1 is sister's husband of Bunda Khan. One Latif is the real brother of the wife of the deceased Bunda Khan. Munni is daughter of Latif. The accussed Mamma kept Munni as his wife three months before the murder of Bunda Khan. Consequently Latif and Bunda Khan were displeased with the accused Mamma. 8. The village Garhiya Lai Khera is thickly populated by Ahirs. There was a dispute between the Ahirs and certain others on the one side and the accused and certain others on the other. Consequently a case under section 107/117 CrPC between them was pending in the court of S.D.M. Shahjahanpur. Bunda Khan deceased was also involved along with Ahirs in the said criminal case. Therefore, the accused and certain others generated the feelings of animosity towards Bunda Khan and certain others and vice- versa. These accused shifted to the town known as Katra from village Garhiya Lai Khera on account of the said enmity. They resided and earned their livelihood there. They however casually visited, the village Garhiya Lai Khera. 9. There are three different Rastas leading to the Fatehganj market from the village Garhiya Lai Khera. The deceased Bunda Khan, the informant Ata Mohammad PW 1, Ballu Khan PW 3 and Bachchan Khan were allegedly returning from the Fatehganj market after making purchases through one of the said Rastas. They however casually visited, the village Garhiya Lai Khera. 9. There are three different Rastas leading to the Fatehganj market from the village Garhiya Lai Khera. The deceased Bunda Khan, the informant Ata Mohammad PW 1, Ballu Khan PW 3 and Bachchan Khan were allegedly returning from the Fatehganj market after making purchases through one of the said Rastas. As soon as they reached the field of one Masit Khan at about 5.00 P.M., the accused-appellants along with one unknown person are alleged to have come out of bushes and shrubs and started assaulting Bunda Khan. The fact that the accused and one unknown person had hidden themselves in the bushes and had been waiting for Bunda Khan deceased does not appear to be convincing. This is so because these accused or the unknown person cannot be said to have had a night-mare that Bunda Khan along with Ata Mohammad and others would be passing through that particular Rasta out of the said three Rastas and that too on the alleged date and time in particular. Had these accused been living permanently in the said village Garhiya Lai Khera and had they not been casual visitors to the said village, they might have come to know of their (accused) going from the said village to and returning from the Fatehganj market. But the facts and circumstances as mentioned above are otherwise than this. Therefore the presence of these accused along with one unknown person on the particular date, time and place becomes doubtful. 10. The unknown person is alleged to have masked his face. Had this been so, the accused-appellants would have certainly covered their faces in one way or the other because they were known to the deceased Bunda Khan and those, who were accompanying him at the alleged time of the incident. But they did not do so. This also casts suspicion as to their presence on the place of occurrence. The accused Mamma, Mohd. Jan and Hasnain are alleged to have been armed with a Gandasa, Kanta and a gun respectively, whereas the unknown person was allegedly armed with a country made pistol and a Jathi. The accused-appellants are all alleged to have started assaulting Bunda Khan with their respective weapons. The unknown person assaulted him with the lathi. The accused Mamma, Mohd. Jan and Hasnain are alleged to have been armed with a Gandasa, Kanta and a gun respectively, whereas the unknown person was allegedly armed with a country made pistol and a Jathi. The accused-appellants are all alleged to have started assaulting Bunda Khan with their respective weapons. The unknown person assaulted him with the lathi. But the statement of Ata Mohammad PW 1 indicates that the accused Hasnain and the unknown person had not at all assaulted any one. He has stated that the assailants were actually those who were armed with the Gandasa and the Kanta. The post-mortem report shows that there was no lathi injury on the body of the deceased. Therefore, the prosecution case as set out in the First Information Report regarding the weapons used in the course of the incident in particular does not find support from the statement of the informant Ata Mohammad PW 1 himself. Similarly the medical evidence does not tally with the occular account. All this readers the prosecution case false and baseless in so far as it relates to the appellants-accused in particular. 11. The accused-appellants are alleged to have threatened to kill Ata Mohammad, Ballu Khan and Bachchan Khan also in the event of advancing towards them and consequently they retraced few paces and stayed there while raising alarm. None can ordinarily be expected to raise alarm in such situation for obvious reasons. Therefore, Ata Mohammad and others could not have also mustered courage to raise alarm in that situation. The accused appellants would not have spared them to enable them to be eye witnesses to the incident against them especially when they were unarmed. The appellants accused are alleged to have been in a position of removing the dead body of Bunda Khan. But they did not do so. All this indicates nothing but the falsehoold in the prosecution case against the appellants accused in particular. 12. The prosecution case is that the informant got the report written by one Triveni Sahai Misra in the Fatehganj market on his dictation. But the sentence, "Thana Katra Report Karne Aaye Hoo", occurring in the said report shows that the same was written at the police station Katra itself. This report contains the words, "Shriman, Thanadhyaksh Mahodaya". But Ata Mohammad has categorically stated that he had not dictated these words to Triveni Sahai Misra. But the sentence, "Thana Katra Report Karne Aaye Hoo", occurring in the said report shows that the same was written at the police station Katra itself. This report contains the words, "Shriman, Thanadhyaksh Mahodaya". But Ata Mohammad has categorically stated that he had not dictated these words to Triveni Sahai Misra. It is on the basis of all this that the learned counsel for the accused-appellants has argued that the report was written at the police station with due deliberations and consultations and that being so no reliance can be placed on the report. He has further argued that the First Information Report is the foundation on which the entire edifice of the prosecution case is built and that if the foundation is shaky, the very edifice is bound to collapse. His contention does not appear to be devoid of force. The informant Ata Mohammad, Ballu Khan and Bachchan Khan had purchases fertilizer etc. in the said market Fatehganj and thereafter they had loaded the same in a bullock cart of Maqsood Khan, who is real brother of Bunda Khan, in the market itself. They were thereafter coming back to their village on foot from the said market. The learned counsel for the appellants-accused has, on the basis of all this, argued that there was no reason why Ata Mohammad and others did not accompany the bullock cart or why they did not sit in the said bullock cart and therefore, the prosecution case to the above effect appears to be false and baseless. His contention cannot be said to be without substance. 13. The statements of Ata Mohammad PW 1 and Ballu Khan PW 3, if read carefully, would show that the mode and manner in which the murder of Bunda Khan is alleged to have been committed is not established beyond doubt. 14. In view of what has been observed above, the probability of the appellants having been falsely implicated on account of enmity cannot altogether be ruled out. In the result the appeal is allowed. The impugned judgment and order are set aside. The appellants accused are acquitted of the offence with which they have been charged. They are on bail. Their bail bonds are cancelled and sureties stand discharged. They need not surrender. Appeal allowed.