Judgment A.B. Srivastava, J. 1. These are two connected appeals arising out of a judgment and order dated 13-11-1979 of Shri J.C. Gupta then VII Additional Sessions Judge, Etah, whereby he: convicted the appellant Mohd. Salim for an offence under section 302 IPC and sentenced him to imprisonment for life and convicted the appellant Babu Khan, of the offence punishable under section 326/34 IPC and sentenced to undergo RI for three years. 2. Both these appeals have been heard together and are being disposed of by a common judgment. The prosecution story, as unfolded in the First Information Report and the statement of the informant Jagdish Prasad (PW 1) is that the deceased Rajendra, also called as Rajju, was having a hotel for selling tea, snack, curd, etc. opposite the Payal Cinema Hall in, the Kasganj town. Hukum Singh (PW 6) was working as a servant in the said hotel. On the date of incident, 21-5-1978, at about 8.30 P.M. Hukum Singh was sitting inside the hotel, the owner Rajendra was sitting on a cot, nearby and his elder brother informant Jagdish Prasad was also present sitting on a wooden Takhat. The place was sufficiently lighted by an electric rod inside the hotel and a bulb outside its entrance. There was also available the light of bulb and rods fitted in the municipal poles in the vicinity. At that moment accused- appellant Salim came to the hotel and using abusive language asked Hakum Singh to give a glass of water. Hukum Singh retaliated and this resulted into a scuffle between the two and also hurling abuses at each other. At that stage deceased Rajendra got up from his cot and pushed aside Salim, who took out a knife from his 'gupti'. Seeing this Rajendra Physically pushed him away the said place and the accused left threatening Rajendra. However, after about 5-6 minutes accused Salim along with the accused-appellant Babu Khan came again to said hotel. While Salim had the knife which he had taken out from the 'Gupti' Babu Khan, had a steel 'pattl' meant for cutting tyres, in his hand. Abusing Rajendra, Salim asked him to get up. As soon as deceased Rajendra got up from his cot, Salim pierced the knife in his abdomen and appellant Babu Khan hit him with the iron 'Patti' resulting into injuries to Rajendra, who fell down. Abusing Rajendra, Salim asked him to get up. As soon as deceased Rajendra got up from his cot, Salim pierced the knife in his abdomen and appellant Babu Khan hit him with the iron 'Patti' resulting into injuries to Rajendra, who fell down. The incident was seen by the informant and Hukum Singh and also by Kallu, Roshan and Radhey. As the two assailants started running away, the informant Jagdish and others tried to apprehend them and threw brickbats but to no avail. In the mean time, Rajendra shouted in agony pleading for being taken to the hospital and the informant and others returned to take care of him. 3. The injured Rajendra was taken to the Government Hospital Kasganj, where he was medically examined at 9.30 P.M. by Dr. K.S. Yadav (PW 5) and the following injuries were found. 1. Wound with clean cut margins 2½ x 1 cm. x bone exposed just above left ear. 2. Stab wound 3 cm x 1 cm x abdomen 12 cm outer to amblicus left side abdomen going inwards. 3. Punctured wound 2 cm x ½ cm x chest cavity 5 cm inner to right nipple on right chest. Since the injured was crying in pain, his condition was serious and he was not in full senses after sending information to the police, the examination Doctor referred him to the Agra Medical College. 4. The informant along with the others took the injured Rajendra on a truck to the S.N. Medical College, Agra, where he was admitted at 6.10 A.M. on 22-5-1978 and an emergency operation was performed by Dr. K.C. Gupta. Reader in the Medical College (PW 8) Rajendra, however, expired the same evening at 6.30 P.M. Information [regarding the death was sent to Police Station Kotwali, Agra and was recorded there at 7.10 P.M. on 22-5-1978. The inquest of the dead body was conducted by S.I. Shanker Pal Singh (PW 5) of Kotwali, Agra at 10.35 A.M. on 23-5-1978 in the mortuary of the Medical College. The post-mortem examination of the dead body was conducted by Dr. O.N. Khanna (PW 7) at 4.15 P.M. on 23-5-1978 and the following ante-mortem injuries were noted. 1. Stitched wound ½" x ½" con the front right side chest upper part inner side. 2. Stitched wound 7½" long on the left side abdomen 3/4" away from amblicus left side. 3. The post-mortem examination of the dead body was conducted by Dr. O.N. Khanna (PW 7) at 4.15 P.M. on 23-5-1978 and the following ante-mortem injuries were noted. 1. Stitched wound ½" x ½" con the front right side chest upper part inner side. 2. Stitched wound 7½" long on the left side abdomen 3/4" away from amblicus left side. 3. Stitched wound with tube on the left side abdomen outer upper part. 4. Cut open on the right ankle part lateral aspect. Death of the deceased was found to have been a result of shock and haemorrhage due to ante-mortem injuries. After the dead body was handed over to the informant Jagdish Prasad and family in the evening on 23-5-1978, they took the same to Kasganj and cremated the body on 24-5-1978. Returning after cremation near about 3 P.M. the informant got the written report Exhibit Ka 1 typed and took the same to the Police Station but it was, not accepted by the Head constable on the ground of inordinate delay. He thereupon despatched the same with a note to the circle Officer, Kasganj by Registered Post where it was received on 25- 5-1978 and on the direction of the circle officer the FIR was registered at 11 A.M. on 25-5-1978 vide chik report Exhibit Ka 12. 5. The investigation was taken by PW 1 Ram Chandra the then S.H.O., Kasganj, District Etah the same day; the statement under section 161 CrPC of the witnesses was recorded, and site plan of the place of occurrence Exhibit ka 16 was prepared. On 27-5-11978 one Tej Pal Sharma produced before the Investigating Officer Exhibit Ka 2, the note dated 21-5-1978 of Dr. K.S. Yadav, informing the police about deceased being brought to the hospital in injured condition. After concluding the investigation he submitted charge- sheet Exhibit ka 17 against two accused persons which led to their committal to court of sessions. 6. The learned Sessions Judge framed charge under section 302 and alternatively section 302 read with section 34 IPC, against the appellant Salim and section 302 read with 34 IPC against the appellant Baboo, to which they both pleaded not guilty and claimed to he tried. They pleaded to have been falsely implicated in this offence on account of enmity. According to Salim he had worked as a conductor on the truck of informant Jagdish for about 2½ months. They pleaded to have been falsely implicated in this offence on account of enmity. According to Salim he had worked as a conductor on the truck of informant Jagdish for about 2½ months. Part of his wages was not paid and when he demanded, there was a quarrel between him and Jagdish and he has been implicated on account of the same. According to Baboo informant Jagdish used to get tyres of his truck repaired at his shop and owed money to him towards repair charges and price of old tyres supplied to him. A quarrel had taken place with regard to the said payment two- three days before the incident and he has been falsely implicated due to the same. 7. In the trial before the learned Sessions Judge, the prosecution produced as many as 11 witnesses. Out of them, PW 1 Jagdish Prasad, PW 2 Roshan, PW 3 Ram Prakash, and PW 6 Hukum Singh were stated to be the eye witnesses of the incident. The other witnesses examined were, PW 4 Dr. K.S. Yadav, who had examined the injuries of deceased Rajendra on 21-5-1978 at 9.30 P.M. and prepared the injury report Exhibit Ka 3. He also stated to have prepared Exhibit Ka 2 information to the police, and delivered the same to some one accompanying the injured for being handed over to the police, PW 5 Shanker Pal Singh, who made inquest of the dead body and prepared his report and other connected documents Exhibit Ka 4 to Ka 8. PW 7 Dr. O.N. Khanna conducted post-mortem on the dead body of deceased Rajendra Kumar and prepared his Exhibit Ka 9. PW 8 Dr. C.K. Gupta, Reader, S.N. Medical College, Agra performed operation on Rajendra at 1.00 P.M. on 22-5-1978 and stated that he died the same day at 6.30 PM. PW 9 Head constable Ram Chandra Singh was the scribe of the chick FIR Exhibit ka 11 and the relevant G.D. entry, Exhibit ka 13, dated 25-5-1978. PW 10 Constable Dalbir Singh, who at the relevant time was posted as Constable Clerk at Police Station Kotwali, Agra, stated about having received information, Exhibit 1, about the death of deceased Rajendra Kumar from the S.N. Hospital, Agra, and to have entered the same in the G.D. of the Police Station, vide Exhibit ka 14. PW 10 Constable Dalbir Singh, who at the relevant time was posted as Constable Clerk at Police Station Kotwali, Agra, stated about having received information, Exhibit 1, about the death of deceased Rajendra Kumar from the S.N. Hospital, Agra, and to have entered the same in the G.D. of the Police Station, vide Exhibit ka 14. PW 11 Ram Chandra Singh, Investigating officer, stated about various steps in investigation and submission of charge-sheet, Exhibit ka 17. No oral evidence was led on behalf of the defence. 8. The learned Sessions Judge on the basis of the above mentioned evidence held appellant Salim to be guilty of murder of deceased Rajendra Kumar, punishable under section 302 IPC while appellant Baboo was found not to have committed the offence of murder or shared common intention to commit the same, rather he was found to have caused some minor injuries to the deceased and to have also been aware of the fact that Salim might cause an injury with knife which may be grievous. Consequently he was held guilty of the offence punishable under section 326 read with section 34 of the IPC. Salim was accordingly convicted under section 302 IPC and sentenced to imprisonment for life, and Baboo was convicted under section 326/34 IPC and sentenced to rigorous imprisonment for three years. Aggrieved, both the appellants have come up in appeal. We have heard learned counsel appearing on behalf of the appellants and the learned A.G.A. on behalf of the State and have also gone through the record. 9. As far as the factum of death of Rajendra Kumar on account of injuries caused to him, the time of causing injuries, and the resultant death is concerned, the same has not been seriously challenged on behalf Of the appellants. There is also no reason to assail these aspects of the prosecution case in view of the consistent medical evidence on record. The version of the first informant Jagdish Prasad (PW 1) and the other alleged eye witnesses to the effect that injuries to deceased Rajendra Kumar were caused around 8.30 P.M. on 21-5-1978 is corroborated by the injury report Exhibit ka 3 and the statement of Dr. K.S. Yadav (PW 4). The version of the first informant Jagdish Prasad (PW 1) and the other alleged eye witnesses to the effect that injuries to deceased Rajendra Kumar were caused around 8.30 P.M. on 21-5-1978 is corroborated by the injury report Exhibit ka 3 and the statement of Dr. K.S. Yadav (PW 4). Medical Officer, P.H.C., Kasganj, District Etah indicating that he was medically examined at 9.30 P.M. on 21-5-1978 and there were, found injuries caused by sharp pointed and edged weapon which were fresh at the time of examination. Farther it is established from the statement of Dr. C.K. Gupta (PW 8) of the S.N. Medical College. Agra that Rajendra Kumar who was admitted' in a critical condition in the said hospital on a reference from Dr. K.S. Yadav, was operated on 22-5-1978 at 610 A.M. and died at 6.30 P.M. the same day as a result of the injury. To the same effect is the evidence of Dr. O.N. Khanna (PW 7) the Medical Officer, District Hospital, Agra who performed the post-mortem examination of the dead body of deceased Rajendra Kumar. 10. The fact that injuries by sharp pointed and edged weapons were caused to deceased Rajendra Kumar at about 8.30 P.M. on 21-5-1978 and he died as a result thereof on 22-5-1978 at 6.30 P.M. is thus fully established. The questions which thus principally arise in these appeals are as to whether the incident occurred at the place and in the manner stated by the prosecution and whether the appellants Mohd. Salim and Babu were authors of these injuries and were seen inflicting; and causing the same to the deceased, by the prosecution witnesses, so as to sustain their conviction for the offences held established by the learned District Judge. 11. Salim and Babu were authors of these injuries and were seen inflicting; and causing the same to the deceased, by the prosecution witnesses, so as to sustain their conviction for the offences held established by the learned District Judge. 11. On behalf of the appellants the prosecution version and the conviction of the appellants is assailed mainly on 3 grounds, firstly, that the First Information Report in this case lodged with inordinate and unexplained delay throwing to winds the veracity of the entire prosecution story and the reliability of the first informant and the other eye witnesses, secondly, the genesis as well as the details of the incident as stated by the prosecution witnesses is improbable and in any case highly tainted and, thirdly, the medical evidence is in direct conflict with the testimony of the alleged eye witnesses, whose presence on the spot becomes highly doubtful on account of the same as well as the inherent contradiction in the interse testimony of these witnesses. 12. Coming to the question relating to the veracity of the First Information Report, Exhibit ka 1, on which the entire prosecution story is based, it would be found that although the incident of causing serious injuries to deceased Rajendra Kumar occurred on 21-5-1978 at 8.30 A.M., no information regarding the same was given to the police on the said day or on the day next thereafter. The first ever attempt to lodge report with the police was, even according to the informant Jagdish Prasad (PW 1) made on 24-5-1978 in the evening, when according to him he got his report Exhibit ka 1 typed out and went to deliver the same at Police Station Kotwali Kasganj, but the Head Constable writer on duty refused to accept the same. The said report was then despatched by post the Circle Officer of police at Kasganj in whose office it was received in the fore noon of 25-5-1978 and under directions of the Circle Officer the FIR was registered at the police station at 11 A.M. the same day. There thus was a delay of 3 days and 14 hours in lodging the FIR. There thus was a delay of 3 days and 14 hours in lodging the FIR. It is vehemently contended on behalf of the appellants that there was absolutely no occasion or justification for not lodging the FIR promptly after the incident, in any case there was no earthly reason for not lodging the same for more than 3 days despite numerous opportunities and occasions to do so. The contention further is that the only reason for non-lodging of the FIR was that the incident which occurred in the night was not witnessed by any one the identity of the assailant/assailants was not known and the time gap of over 3 days was utilised in deliberating and consorting the story against the accused parsons. 13. On behalf of the respondent, however, it has been contended by the learned A.G.A. that mere-delay in lodging the FIR may not always be fatal to the prosecution case rather the promptness or otherwise of FIR has to be judged on the basis of the surrounding circumstances. Viewed in the light of the same, he contends that the delay in lodging information to the police loses its significance, in so far as the first informant whose brother was critically injured and had to be rushed first to the P.H.C. and then to the medical college in a bid to save his life, was naturally expected to he more concerned with the life of his brother than informing the police. 14. While there can be no two opinion about the proposition that mere delay in lodging FIR with the police cannot always be a factor throwing into doubt the veracity of the prosecution story regarding a crime or the perpetrators thereof, and the question of delay or otherwise cannot be judged on mere arithmetical calculations, divorced of the surrounding facts and circumstances, but at the same time in each case of delay some reasonable and plausible explanation will have to be demanded and if offered, its genuineness and veracity has to be carefully scrutinise to judge whether or not the First Information Report which is an extremely vital and valuable piece of evidence for corroborating or contradicting the oral evidence, can be accepted as a genuine and objective version. The law on this point has bean categorically laid down by the Supreme Court in Thulia Kali v. The State of Tamil Nadu, AIR 1973 SC 501 in the following terms ; "First information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the report can hardly be overestimated from the stand point of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eye witnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of after thought. On account of delay the report not only gets bereft of the advantage of spontaneity danger creeps in of the introduction of coloured version, exaggerated account or connected story as a result of deliberation and consultation. It is, therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained." 15. In the case before the Supreme Court the occurrence which took place at about 12 noon on March 12, 1970 was not reported for more than 20 hours after the occurrence even though the police station was only 2 miles from the place of occurrence, and the daughter-in-law of the deceased was present when the accused made murderous assault on the deceased and his step son was alleged to have arrived near the scene of occurrence on being told of the incident. 16. The above dictum does not mean that while insisting prompt lodging of FIR margin has not to be given to normal human traits, such as shock, grief, helplessness and sometimes even bewilderment, care however has to be taken that it does not become a tool in the hands of unscrupulous prosecutor or informant to indulge in embellishment or concoction to rope in any person on account of enmity, mere suspicion or hearsay. Each matter, thus, has to be decided on its own facts and circumstances to judge whether any such conditions prevented lodging of the FIR, or the time gap was due to lack of knowledge of culprits, and details of incident or, was utilised for witch hunting. In the instant case, the explanation offered by the prosecution and the first informant, for over 3 days' delay in lodging the FIR i.e. the preoccupation of the informant and other family members with the treatment and hospitalisation of the deceased and thereafter his last rites, when examined goes to reveal that the same is a mere camouflage to cover the factors which very strongly indicate cooking up of a story to implicate the appellants for this crime, the authors of which were in all probability not seen on the spot, mainly on suspicion. 17. If we look into the chronology of the post incident events as disclosed, in the statement of Jagdish Prasad (PW 1) and the documents on record, it would be found that it is not a case where the first informant, and the family members did not get the opportunity to lodge information with the police. In fact it is very much evident that they had numerous opportunities during about 3½ days period at their disposal, to inform the police about this crime and the perpetrators thereof, rather they got even suggestion and indication in this regard from various quarters. 18. The deceased Rajendra Kumar who was injured at about 8.30 PM; was taken to the hospital around 9.30 P.M., where he was medically examined and remained under observation for some time before he was put on a truck to be shifted to the medical college, Agra. Although the exact time of starting for Agra is not forthcoming, it is in evidence that some time was taken to bringing the truck. As many as 15-20 persons had reached the hospital during the said period, including the family members and the own uncle of the first informant. Yet however no attempt was made to get the report with the police lodged by the informant's uncle. Even Hukum Singh (PW 6) the servant who stayed back at the hotel was not asked to report the matter and the name of the assailants to the police. Yet however no attempt was made to get the report with the police lodged by the informant's uncle. Even Hukum Singh (PW 6) the servant who stayed back at the hotel was not asked to report the matter and the name of the assailants to the police. According to the first informant even the Doctor at PRC, Kasganj enquired about as to whether any report to the police had been made or not. Yet however no attempt was made to inform the police, the nearest: out post being only about 400 yards aways from the hospital. What is remarkable in this connection is that even though Dr. K.S. Yadav (PW 4s prepared an information, Exibit ka. 2, for the police and delivered it to one of the persons accompanying the injured, after conducting the medical examination and providing first and, the same was not delivered to the police at Kasganj. It was given to the Investigating officer by one Tejpal Sharma on 27-5-1978 Curiously enough the presence of Tejpal Sharma at the Kasganj hospital or the fact of his accompanying up to Agra has been denied by the informant Jagdish Prasad This fact of non-filing of Exhibit 2 at police station Kotwali Kasganj on 21-5-1978, and the delivery thereof to the Investigating officer after about a week by Tejpal Sharma goes to indicate an attempt to withhold prompt information about the incident from the police, because of the fact that probably till then the assailants and the details of the incident were not known. 19. Even if we accept in the contention advanced by the prosecution and accepted by the learned Sessions Judge that being pre occupied with the treatment and hospitalisation of Rajendra Kumar the first information and his family members including his uncle and the hotel servant Hukum Singh, could not have thought of lodging information with the police, the same is able to explain only one third of the delay, that is, up the evening of 22-5-1978, when Rajendra Kumar died in the medical college hospital at Agra. After his death at 6.30 P.M. the dead body was kept in mortuary, the police was informed and the first; informant was told that the body would be delivered only after post-mortem the next day. Yet however all through the night 22/23-5-1978 no attempt was made to lodge the FIR at any police station in Agra city. After his death at 6.30 P.M. the dead body was kept in mortuary, the police was informed and the first; informant was told that the body would be delivered only after post-mortem the next day. Yet however all through the night 22/23-5-1978 no attempt was made to lodge the FIR at any police station in Agra city. The plea of the: first informant that he was not aware about the police stations at Agra is not tenable in view of the fact that he being a truck operator, had been visiting or passing through the said city in the past also. Then it is in his evidence that the S.I. of Police Station Kotwali, Agra, who made the inquest of the dead body at 10.15 A.M. on 23-5-1978 reprimanded him for not lodging FIR till then. Obviously it does not he in the month of the prosecution that the first informant or his uncle could not have accompanied the said S.I. to lodge the FIR at police station Kotwali, Agra. It is pertimeat in this connection that the uncle of the first informant Suraj Prasad is also one of the witnesses of the panchayacnama. 20. Even if we exclude the period of the first informant's and others' stay at Agra, it is in evidence that they returned to Kasganj with the dead body of Rajendra Kumar at about 11.30 P.M. on 23-5-1978. They started for cremation at about 9 A.M. on 24-5-1978. Being a matter of city, the FIR could have been lodged in the night itself or in the morning, which occurs quite early in the month of May. The explanation offered that the family was grief striken and could not have thought of lodging report with the police and bringing to book the assailants, before cremating the dead body, is hardly believable in the circumstances, where the incident was of the city and a large number of persons conversant with the necessity of informing the police and hauling up the assailants at the earliest, must have been available. The observation of the learned Sessions Judge that the PW 1 informant Jagdish Prasad is a simpleton and hence the delay in lodging the FIR or naming the assailants for more than 3 days is excusable, is not based on any materials, nor can such a presumption be drawn on mere surmises. The observation of the learned Sessions Judge that the PW 1 informant Jagdish Prasad is a simpleton and hence the delay in lodging the FIR or naming the assailants for more than 3 days is excusable, is not based on any materials, nor can such a presumption be drawn on mere surmises. It fits in only with the conclusion that the incident, the manner in which, and the persons by whom, the deceased was assaulted was not known, or clear and it was only after deliberation and such other informations or conjectures as might have become available by the afternoon of 24-5-1978 that the story put forth in the FIR was carved out and despatched to the police. Obviously no credence can be (given to such a FIR and the version contained therein to warrant conviction for a serious charge of murder. The Sessions Judge was not, in our opinion, justified in ignoring this glaring aspect of the case, merely in view of the testimony of the alleged eye witnesses, which as the discussion to follow would show, is itself not above suspicion 21. In fact the own statement of informant Jagdish Prasad that he would not have lodged any report with police if his brother Rajendra Kumar had not died as a result of the injuries inflicted by the accused-appellants is nothing but a crude attempt to show as if the inordinate delay in lodging FIR was a product of his benevolent mood to the appellants, whereas in actuality till then he did not know about their being the assailants. This fact is further confirmed by his own statement that he gave the details of the incident and this name of the assailants, to the news persons at Agra. The newspaper, however, according to him published only about the incident of murder and not the name of the assailants. 22. Even if we ignore from consideration the dubious character of the FIR, and scrutinise the prosecution story on its own, we would find that the evidence led by the prosecution and the story set forth, is neither reliable nor does it inspire confidence and it is also in direct contradiction to the medical evidence. 22. Even if we ignore from consideration the dubious character of the FIR, and scrutinise the prosecution story on its own, we would find that the evidence led by the prosecution and the story set forth, is neither reliable nor does it inspire confidence and it is also in direct contradiction to the medical evidence. According to the prosecution version as given by Jagdish Prasad (PW 1) and the other eye witnesses, the incident of fatal assault on Rajendra Prasad was preceded by a quarrel and altercation between appellant Salim and Hukum Singh (PW 6) the servant of Rajendra Kumar, over demand of a glass of water, during the course of which Salim took out a knife from the Gupti in his hand. On this Rajendra Kumar intervened and pushed and chased away Salim. After a gap of about 5 minutes Salim with the said knife and appellant Babu with an iron patti meant for cutting tyres, appeared on the scene and challenged Rajendra Kumar. As Rajendra got up and tried to stop them, Salim stabbed with his knife in his abdomen and Babu hit with the patti on the head of Rajendra who fell down. 23. The contention of the learned counsel for the appellant here is two-fold ; firstly, it is contended that the cause and genesis of the incident is improbable and unnatural, secondly, it was not possible for all the witnesses to have seen the incident at both stages, and in any case, the assault could not have taken place and injuries could not have been caused and the assailants made good their escape, in case all these five persons, and a few others, were present at the scene of occurrence. 24. Having given our anxious consideration to all these aspects of the matter and taken through the material on record, we find that although not much can be made of the objection with regard to the genesis part of the story, that regarding the actual incident of stabbing and wounding the deceased, as unfolded in the evidence of the prosecution witnesses is neither probable nor is it in consonance with the circumstances and the medical evidence. It is in the evidence that 'the work at Rajendra Hotel was looked after by the servant, named Hukum Singh, examined as PW 5. It is in the evidence that 'the work at Rajendra Hotel was looked after by the servant, named Hukum Singh, examined as PW 5. In these circumstances, while the presence of the owner Rajendra Kumar at the hotel was probable, there could ordinarily be no occasion for the presence of Jagdish Prasad. As far as Roshan (PW 2) is concerned, he claimed to have gone to the said hotel for purchasing curd, prior to the initial incident of altercation between Hukum Singh and Salim and to have witnessed the said altercation. Yet however he claims to have been present at the place of occurrence and to have witnessed the arrival of the two appellants after a gap of 4-5 minutes, and to have caused injuries to Rajendra Kumar. No reason has been given as to why he did not purchase curd and went home immediately after Salim had left the said place on the first occasion. Contradictions apart on other vital part of the prosecution story, this aspect of his testimony itself goes to indicate and attempt to induct him as an eye witness while he actually had no occasion to be there. His contention that after the quarrel between Hukum Singh and Salim was over he instead of purchasing curd, went to have a stroll in the cinema premises, and saw the incident from there, is nothing but a product of imagination. 25. As regards the other eye witness Ram Prakash (PW 2) also the position is no better. In the FIR the name Ram Prakash does not find mention, rather one Kallu has been named as eye witness amongst others. In his testimony this witness gave out his name only as Ram Prakash, and not Kallu. When cross examined, he further stated that in none of the public documents including voters' list, school record, ration card, his name is referred as Kallu. He admitted that there are several persons named Kallu in the locality. In these circumstances the very identity and consequently the presence of this witness on the spot becomes doubtful. Even otherwise he stated to have left home the said evening to see exhibition which was not in the vicinity of place of occurrence. He does not claim to have seen the incident from the way. In these circumstances the very identity and consequently the presence of this witness on the spot becomes doubtful. Even otherwise he stated to have left home the said evening to see exhibition which was not in the vicinity of place of occurrence. He does not claim to have seen the incident from the way. It is intriguing as to how and why under these circumstances he could have gone inside the Payal cinema hall to be coming out of the cinema premises and be near the Rajju Hotel to witness this incident. The suggestion of the other side that he also is a got up witness thus can not be lightly brushed aside. 26. As regards Hukum Singh (PW 5) the person, quarrel with whom of the appellant Salim is stated to have led to this incident and who have been treated a star witness of the prosecution by the learned sessions Judge the contention on behalf of the appellants is that he was not a servant or employee of the Rajju Hotel and was cited as an ordinary eye witness in the FIR. Later an improvement has been made to adopt him as the Chief Servant at the Hotel, responsible for the quarrel providing immediate cause for the fatal assault. A perusal of the FIR Exhibit ka 1 would show that altercation and quarrel is stated to have occurred between Salim and the servant sitting on the stall of the hotel. The name Hukum Singh does not find mention in this context. In the later part of the FIR where the name Hukum Singh finds place along with Radhey, Kallu and Roshan, he is mentioned as an eye witness of the assault and not as a servant. Viewed in the light of this, if we consider the statement of this witness that he did not accompany the deceased to the hospital at Kasganj, or at Agra, and also did not lodge any report with the police, lends credibility to the defence version regarding this witness Hukum Singh also being hand-picked to supplement the evidence regarding the alleged genesis of the incident. 27. Once the presence of the eye-witnesses on the spot of occurrence is found to be improbable there remains no legally acceptable evidence to corroborate the prosecution version regarding the crime and the complicity therein of the appellants or any one of them. 28. 27. Once the presence of the eye-witnesses on the spot of occurrence is found to be improbable there remains no legally acceptable evidence to corroborate the prosecution version regarding the crime and the complicity therein of the appellants or any one of them. 28. If we scrutinise the testimony of the eye witnesses examined by the prosecution with reference to the medical evidence regarding the injuries and the cause thereof. The same would also belie the prosecution version regarding the details of the incident, and support the contention of the appellants that the incident in all probability occurred at a time when there was none to witness the same, and it was for this reason of the assailants not being immediately known, no FIR was, lodged after the incident or even for more than three days. In the FIR Exhibit ka-1 and in his statement, Jagdish Prasad (PW 1) stated that Salim pierced knife in the stomach, and Babu hit with iron patti on the head of the deceased and Immediately ran away. In his cross examination however, he admitted that the deceased Rajendra Kumar received four injuries. Roshan (PW 2) also stated about Salim giving blow by knife in stomach and Babu by patti on the head of the deceased. Ram Prakash (PW 2) on the other hand stated that Babu gave two-three blows by the 'patti' on the head and chest, while Hukum Singh (PW 6) repeated the version of Salim giving knife blow in the stomach and Babu hitting with 'patti' on the head. In his medical examination Dr. K.S. Yadav (PW 4) however found a cut wound above the ear and two stab wounds, one in the stomach and the other in the chest. Although he stated that injury no. 3 in the chest could be caused by iron 'patti' if the same besides being sharp is also pointed, there is nothing in evidence to indicate that the 'patti' meant for cutting tyres used by appellant Babu was a pointed one. 29. Although he stated that injury no. 3 in the chest could be caused by iron 'patti' if the same besides being sharp is also pointed, there is nothing in evidence to indicate that the 'patti' meant for cutting tyres used by appellant Babu was a pointed one. 29. There is also ample force in the contention of the learned counsel for the appellants that the incident in the manner stated by the prosecution could not have taken place and the assailants could not have succeeded in accomplishing their task with the impunity they did, if as claimed, as many as more than 5 persons including the own brother and servant of the deceased were present nearby. In the normal course they, or at least those present in the close proximity of the deceased, would have tried to resis or thwart the attempts of the attackers, with whatever objects they could lay hand on. That no such attempt was mad* and even no injury is alleged to have been caused to the accused persons by the brickbats and ballasts thrown at them, and no attempt by the people: of the locality to corner them although they belonged to the same area, also indicate a high probability of the incident having occurred with in all probability none except the deceased was present at the scene of occurrence. This also goes to shake the credibility of the prosecution version regarding the: complicity of the accused-appellants in this crime. 30. All these when taken into consideration go to indicate a strong probability that the incident of fatal assault on deceased Rajendra Kumar was not seen by the witnesses examined by the prosecution and the story belatedly put forth in this regard is more a product of imagination than reality. The evidence does not fall in reliable category, and it would not be safe to hold the accused-appellants Salim and Babu guilty of having caused injuries, or having committed murder of deceased Rajendra Kumar. Looking into all the above fast and circumstances, therefore, in our opinion, it is not possible to sustain the; conviction of appellant Salim for the offence under section 302 IPC and Babu Khan for the offence under section 326/34 IPC on the evidence on record. The appeals preferred by both these appellants against the conviction and sentence awarded by the learned Sessions Judge deserve to be accepted. 31. The appeals preferred by both these appellants against the conviction and sentence awarded by the learned Sessions Judge deserve to be accepted. 31. We, therefore, allow both the appeals preferred by appellants Salim and Babu Khan, and set aside their conviction recorded by the learned Sessions Judge and acquit them. Both appellants: are on bail. They need not surrender and their sureties be discharged.