Judgment Surya Prasad, J. 1. This is a criminal appeal against the judgment and order dated 7tn August, 1979 passed by the then learned III Additional Sessions Judge, Ghazipur, convicting the appellant-accused under section 302 IPC and sentencing him to the imprisonment for life and a fine of Rs. 2000/-, in default of payment of fine to four years rigorous imprisonment in Session Trial no. 284 of 1978 (State v. Rajendra Singh Yadav and another). 2. The charge against the accused Raj Kumar Singh Yadav alias Bhikha Yadav along with Rajendra Singh Yadav was that on the night between 12/13th June, 1974 at about mid night at the door of the house of Kashi Ram deceased in village Hinganpur within the circle of police station Bhurkura, district Ghazipur in pursuance of the cam non intention bath of them Raj Kumar Singh Yadav alias Bhikha Yadav) committed the murder of Kashi Ram Harijan, by intentionally causing his death by inflicting Gandas blows upon him and Rajendra Singh Yadav was standing with a lathi in his hand and there by they committed an offence punishable under section 302 read with section 34 IPC. The prosecution case briefly stated is that the Harijans of village Hinganpur, within the circle of police station Bhurkura, district Ghazipur, stopped doing dirty work of the village for about 8 months before the commission of the murder of Kashi Ram. The dirty work included cleaning the dead bodies of the animals and other things in connection therewith. This act of the Harijans consequently infuriated the people of other communities in the village. The accused Raj Kumar Singh Yadav alias Bhikha Yadav and Rajendra Singh Yadav were extremely displeased with the Harijans of the village in general and Kashi Ram deceased in particular became he had taken lead on behalf of other Harijans Consequently the accused Raj Kumar Singh Yadav alias Bhikha Yadav and Rajsadra Singh Yadav threatened to kill Kashi Ran whereupon the other Harijans led by Kashi Ran had to move an application against them. Consequently the accused Raj Kumar Singh Yadav alias Bnikha Yadav and Rajendra Singh Yadav became more annoyed and displeased with Kashi Ram and others. In the night intervening 12/13th June, 1974, at about mid night Kashi Ram was sleeping on a cot outside his house after taking his meal. Consequently the accused Raj Kumar Singh Yadav alias Bnikha Yadav and Rajendra Singh Yadav became more annoyed and displeased with Kashi Ram and others. In the night intervening 12/13th June, 1974, at about mid night Kashi Ram was sleeping on a cot outside his house after taking his meal. His wife Smt. Piyaria was also sleeping on another cot near by his cot. Their two daughters were also sleeping on other cots. A lantern was bruning. Raj Kumar Singh Yadav alias Bhikha Yadav armed with a Gandasa and Rajendra Singh Yadav, armed with lathi reached there. Smt. Piyaria had stomach-ache and, therefore, she could not sleep and was lying. She saw them and enquired of them why they had come there. Raj Kumar Singh Yadav alias Bhikha Yadav started giving Gandasa blows to Kashi Ram. Smt. Plyaria raised alarm. Her daughter also cried. Consequently Pati Ram, Faujdar, Kharpat Ram, Ball Ram and others armed with lathis and torches reached there. They chased the accused, but they ran away. They threatened the witnesses also in the event of advancing towards them. Kashi Ram succumbed to the Injuries caused to him. Smt. Piyaria got a first information report Ext. Ka 1 written by Faujdar on her dictation about the incident. Faujdar took it to the police station Bhurkura and handed it over to the then Head Moharrir Markandey Singh. Tint report was received at the police station on 13th June, 1974 in the presence of the then Sub-Inspector Tilakdhari (PW 4). On the basis of that report, the then Head Moharrir Markandey Singh prepared a chick report Ext. ka 3 and registered a case in the general diary at serial no. 8, an extract of which is Ext. ka 4. The Investigation Into the case was entrusted to the Sub-Inspector Tilakdharl (PW 4), who took down the statement of Fauzdar at the police station itself. He proceeded to the place of occurrence. Reaching there, he prepared an inquest report Ext. ka 5 and other documents in regard to the dead body of Kashl Ram. Thereafter he despatched the dead body to the murtuary through constable Ram Awadh and village chaukidar Kishuni for post mortem examination. Thereafter he took down the statements of the witnesses including Smt. Piyaria (PW 2). Thereafter he inspected the place of occurrence and prepared a site plan Ext. ka 10. Thereafter he despatched the dead body to the murtuary through constable Ram Awadh and village chaukidar Kishuni for post mortem examination. Thereafter he took down the statements of the witnesses including Smt. Piyaria (PW 2). Thereafter he inspected the place of occurrence and prepared a site plan Ext. ka 10. He took into his custody the blood stained earth and plain earth and certain articles including clothes from the place of occurrence and prepared a Fard in respect thereof. He had seen the torches of Faujdar, Kharpat Ram and Patiram and subsequently returned them into their Supudagi. He prepared a fard Ext. ka 12 in respect of the same. 3. On 14th June, 1974 at 4.15 P.M. Dr. C.B. Singh (PW 3) conducted the post mortem examination on the dead body of Kashi Ram and found the following ante mortem injuries thereon – 1. Incised wound 6" x 1" on the left side face. Transvers extending (paper torn) Plna of right ear is also cut. 2. Incised would 6" x 4½" x 6 cm (paper torn) the top of right shoulder transverse the under laying (sic) is also cut. 3. Incised wound 5" x 2" x bone deep on the present of neck. 4. Incised wound ½" x 3/4" x skin deep on the (sic) of left thumb (sic). Trachea was cut. Stomach was found empty. In the opinion of the doctor, the death occurred due to shock and haemorrhage. He prepared the past mortem report Ext. ka 2 simultaneously with the performance of the postmortem examination on the dead body. 4. On the receipt of the post-mortem report and after the completion of the investigation into the case the Investigating Officer. Tilakdhari (PW 4) submitted the charge-sheet against the accused Raj Kumar Singh Yadav alias Bhikha Yadav and Rajendra Singh Yadav. The prosecution examined Balli (PW 1), Smt. Piyaria (PW 2), Dr. C.B. Singh (PW 3), Tilakdhari (PW 4) and relied upon certain documents in support of its case. An affidavit on behalf of Ram Awadh Singh was filed to the effect that he along with village Chaukidar Kishuni took the dead body of Kashi Ham to the mortuary for post-mortem examination. 5. The accused Raj Kumar Singh Yadav alias Bhikha Yadav and his brother Rajendra Singh pleaded not guilty. An affidavit on behalf of Ram Awadh Singh was filed to the effect that he along with village Chaukidar Kishuni took the dead body of Kashi Ham to the mortuary for post-mortem examination. 5. The accused Raj Kumar Singh Yadav alias Bhikha Yadav and his brother Rajendra Singh pleaded not guilty. They have stated that all the allegations levelled against them are wholly wrong and incorrect and that they have been falsely implicated on account of enmity. They have displayed their ignorance regarding many of the facts relating to the case. They have also stated that Kashi Ram deceased was net a man of good moral character. 6. Having heard the learned counsel for the parties and having considered the evidence on record, the learned III Additional Sessions Judge, Ghazlpur acquitted Rajendra Singh Yadav under section 302 read with section 34 IPC, but convicted the accused-appellant Raj Kumar Singh Yadav alias Bbikha Yadav under section 302 IPC and sentenced him to imprisonment for life thereunder through his impugned Judgment and order Aggrieved, the appellant-accused Raj Kumar Singh Yadav alias Bhikha Yadav, preferred this appeal against the same. We have heard the learned counsel for the parties at length and have carefully gone through the evidence on record. 7. There is no specific mention in the first information report of the place where the lantern alleged to have been burning was kept in the course of the commission of the offence. Similarly there is no mention therein of specific substance from which it was actually banging during the course of offence. Smt. Piyaria (PW 2) had shown the lantern and the place where it was hanging to the Investigating Officer, Tilakdhari (PW 4) but Tilakdhari (PW 4) had tot shown in the site plan the place where the lantern was actually lighting. Not only this, but he has also not prepared any Fard in respect of the same. He had asserted that he had seen the lantern. But he has not made any mention to this effect in the case diary. Smt. Piyaria (PW 2) had asserted that she bad told the Investigating Officer, Tilakdbari (PW 4) that the lantern was lighting at the door hanging from a Harish. He had asserted that he had seen the lantern. But he has not made any mention to this effect in the case diary. Smt. Piyaria (PW 2) had asserted that she bad told the Investigating Officer, Tilakdbari (PW 4) that the lantern was lighting at the door hanging from a Harish. But there is nothing as such in the statement recorded by the Investigating Officer, Tilakdhari (PW 4) under section 16 of the Code of Criminal Procedure, She has, for the first time, introduced in the court below in her statement that the lantern was burning hanging with the Harish fixed in the marriage ceremonical symbolical, known in the local dialact as Madwa in the course of the incident. But the Investigating Officer, Tilakdhari (PW 4) has specifically stated that Smt. Piyaria had told him that the lantern was hanging at the door. He has emphatically denied that she had told him that the lantern was hanging from the Harish. 8. The first informatics report Ext. ka 1 is alleged to have been written in the light of the lantern which was taken alter having been detached from the Harish from which it was hanging. This is what has been stated by Smt. Piyaria (PW 2). There is no evidence on record to show that the lantern was again hung from the Harish, after the report being allegedly written in its light. There was be other lantern than this alleged lantern, according to Balli (PW 1). He has stated that Smt. Piyaria (PW 2) bad put this lantern off before the arrival of the Investigating Officer at the place of occurrence and that lantern was hanging in the same condition as it remained in the course of the incident. Balli (PW 1) had been continuously present at the place of occurrence till 10-15 am till which time no other lantern was brought to the place of occurrence for any purpose whatsoever. He had told the Investigating Officer that the lantern was lighting at the door of the house of Kashi Ram. He has categorically stated that he had not told the Investigating Officer that the lantern was hanging from the Harish. He had told the Investigating Officer that the lantern was lighting at the door of the house of Kashi Ram. He has categorically stated that he had not told the Investigating Officer that the lantern was hanging from the Harish. In view of the vacillating and un-rellable statements of Balli (PW 1), Smt. Piyaria (PW 2) and the Investigating Officer Tilakdhari (PW 4), the presence of the lantern light becomes doubtful in the course of the commission of the offence. 9. There was 3-4 mounds of grain only kept in the house of Smt. Piyaria (PW 2) in the fateful night. It may be mentioned in this connection that in the month of lone, this was the only quantity of grain kept in her house. This indicates nothing but the fact that her family was poverty stricken. Therefore, even this small quantity of grain was more valuable for bee family than anything else. Women are ordinarily found to be more particular about the safety, protection and preservation of the house hold affects. But some of the members of her family including herself was sleeping inside the house even from the safety point of view of the said grains especially when her house rem lined open on the back side from which any outsider could have easily entered into the house. This is some thing very strange. 10. There were allegedly 3-4 cots besides the cot of Kashi Ram deceased. Smt Piyaria (PW 2) had got the first Information report written on anther cot which was subsequently kept near the cot of Kashi Ram deceased. It is not understandable why the other cot was brought and kept near the cot of Kashi Ram deceased, especially when there were 3-4 cots already lying there, According to the statement of Smt. Piyaria (PW 2) the cot on which the dead body of Eashi Ram was lying was not removed. But Bail (PW 1) has stated that all the cots had been removed before the arrival of the Investigating Officer. In view of all this, the prosecution case that Smt. Piyaria and her children were lying sleeping on different cots near the cot of Eashi Ram deceased becomes doubtful. Balli (PW 1) has been specific in saving that Smt. Piyaria (PW 2) had tried to catch hold of the assailants. In view of all this, the prosecution case that Smt. Piyaria and her children were lying sleeping on different cots near the cot of Eashi Ram deceased becomes doubtful. Balli (PW 1) has been specific in saving that Smt. Piyaria (PW 2) had tried to catch hold of the assailants. Not only this, but she had also tried to catch hold of the Dhoti of the accused-appellant Raj Kumar Singh Yadav alias Bhikha Yadav, Bat Smt. Piyaria has completely denied this. She has specifically stated that she did not make any effort to save her husband or to catch hold of the accused in any manner what-so-ever. She did not jump over the body of her husband to save him even when Balli (PW 1) and other witnesses had come to the some of occurrence and when one Gandasa blow was allegedly given by the accused-appellant to him (Kashi Ram) before Balli (PW 1) in particular. If the witnesses hid actually come and if any blow had been actually given before them, Smt. Piyaria (PW 2) would have certainly done something to save her husband at that point of time in particular. It may be mentioned in this connection that Smt. Piyaria (PW 2) has stated that she had been crying and weeping, sitting on her cot, even in the presence of the witnesses. This doss not appear to be a natural conduct on her part, especially when her cot was only at a distance of one pace from the cot of her husband. 11. The first information report shows that the witnesses including Balli (PW 1) were holding Lathi Danda and torches in their hands. Smt. Piyaria (PW 2) had told the Investigating Officer as to who of the witnesses had torches with them. But there is nothing as such in her statement recorded under section 161 of the Code of Criminal Procedure. She has further stated that Balli (PW 1) had lathi whereas other witnesses Faujdar and Patiram had torches with them at the time of the commission of the offence. But Balli (PW 1) has categorically stated that he had no lathi or torch with him not only this, but according to him none of the other witnesses had also lathi with him. But Balli (PW 1) has categorically stated that he had no lathi or torch with him not only this, but according to him none of the other witnesses had also lathi with him. None of the witnesses alleged to have held torches, was examined for reasons best known to the prosecution, nor was any Fard prepared by the Investigating Officer in respect of the same. 12. According to Smt. Plyaria (PW 2) the Investigating Officer had first of all recorded her statement under section 161 of the Code of Criminal Procedure. But the Investigating Officer, Tilakdhari (PW 4) has stated that he had recorded the statement of other witnesses before recording the statement of Smt. Piyaria (PW 2). The Investigating Officer, Tilakdhari (PW 4) along with other police officials reached the scene of occurrence at 10 a.m. and returned at 12 noon therefrom. They had taken the dead body of Kashi Ram along with them. Smt. Piyaria (PW 2) had not accompanied them. She did not have any opportunity to see the dead body of her husband since it was taken by the police from the place of occurrence. But Balli (PW 1) has stated that Smt. Piyaria had accompanied the Daroga to the police station and returned next day therefrom. 13. The first information report shows that Smt. Piyaria initially raised alarm and her children subsequently did so. But she has given her statement on oath in the court Indicating as if her children were also waking up and they along with her raised alarm simultaneously. 14. Balli (PW 1) is inimical to the accused. Kashi Ram deceased had mortgaged his agricultural land to the accused. Kashi Ram could not repay the mortgage money. Consequently he bad to execute a sale deed in favour of the accused-appellant in respect of half of the agricultural land. But the accused did not deliver the possession over the remaining half of the land to Kashi Ram deceased. The accused-appellant continued his forcible possession thereon. The prosecution had not examined any independent witness. However, the statement of Smt. Piyaria (PW 2) and Balli (PW 1), who are interested and partisan are inconsistent with and contradictory to each other and, therefore, cannot be implicitly relied upon. The act and conduct of Smt. Piyaria (PW 2) particularly in the course of the incident does not appear to be natural. Smt. Piyaria is illiterate. However, the statement of Smt. Piyaria (PW 2) and Balli (PW 1), who are interested and partisan are inconsistent with and contradictory to each other and, therefore, cannot be implicitly relied upon. The act and conduct of Smt. Piyaria (PW 2) particularly in the course of the incident does not appear to be natural. Smt. Piyaria is illiterate. She does not know whether the first Information report was written in the local dialect or in chaste Hindi Language. The word "Sakriya" occurring in the first information report shows that it is not the out-come of the dictation of Smt. Piyaria, as alleged by her. 15. The stomach of Kashi Ram deceased was found empty by Dr. C.B. Singh (PW 3) on 14th September, 1974 at 4.15 P.M. when he conducted the post mortem examination on his dead body. Kashi Ram deceased used to take his meals ordinarily every day at 7-8 P.M., but he had taken his meal on the date of the incident at 5 P.M. and that too, two breads only, even though he had not taken food in the day. Why did she try to give such statement ? Because the stomach was found empty at the time of the post mortem examination and been use the medical evidence was to be made consistent with the prosecution case on the point in question. But her endeavour can very well be said to have met with no success. There is a sentence "Bitl rat me mera aadami Kashi Ram kha pikar makan ke samane bahar charpai par soye the" In the first information report. The words "kha pikari' occurring in this sentence are significant, significant in the sense that he had taken his meal before going to bed. This excludes the possibility of Kashl Ram having taken two breads only in the evening. Smt Piyaria, therefore, appears to have become completely oblivious of the aforesaid sentence occurring in the first information report, when she says that her husband had not taken the meal throughout the day and that he bad taken only to breads in the evening This statement appears to be a tutored one as has been suggested to her, in her cross examination. 16. The total number of injuries is four only, as is clear from the post mortem report. 16. The total number of injuries is four only, as is clear from the post mortem report. But the statements of Balli (PW 1) and Smt. Piyaria (PW 2) if read together, would show that five Gandasa blows were given by the accused to Kashl Ram deceased. The absence of the fifth Gandasa injury on his dead body indicates doubt as to the veracity of their statements and also to the correctness of the prosecution case. A perusal of the statement of Tilakdharl (PW 4) in its entirety would show that he has not investigated into the case fairly and properly. 17. The learned Trial Judge has inter alia observed in his judgment as under:- "The term that the lantern was at the door of Kashl used in FIR meats to include the lantern hanging from a pole near the cot of Kashi at the time of occurrence." While discussing the evidence of Balli (PW 1) in paragraph 5 of his judgment, the learned Trial Judge has observed as under :- "This witness has been cross examined at length. It has been alleged that he had no torch with him and so he had no opportunity to see the occurrence in may opinion this argument against this witness cannot be accepted because other witnesses had the torches and there was a lantern near the cot of the deceased hanging from a pole." 18. The learned Trial Judge has made the above observations, on presumption, guess and surmises. The fate of the case depends not on such observations, but on the evidence on record. The learned Trial Judge does not appear to have carefully considered the evidence on record on material aspects of the prosecution case. In view of what has been discussed and observed above, we arrive at the irresistible conclusion that the prosecution has not succeeded in establishing its case against the accused by reliable evidence. 19. In the result the appeal is allowed. The impugned judgment and order are set aside. The appellant is acquitted of the office with which he has been charged. He is on bail. His bail bonds are cancelled and sureties stand discharged. He need not surrender. Appeal allowed.