JUDGMENT Surya Prasad, J. 1. THIS appeal has been filed against the Judgment and order dated 31st August, 1979 passed by the then learned Vth Additional Sessions Judge, Allahabad in.Sessions Trial No. 367 of 1978 convicting the appellant Rafat Ullah alias Babulla under Section 302 read with Section 34,I.P.C. and sentencing him to imprisonment for life thereunder. 2. THE prosecution case briefly stated is that the informant Mohd. Idrish along with his younger brother Rais alias Baggar deceased and aunt Smt. Noor Jahan and Smt. Anwari wife of the younger brother Sabbir went to the Mazar for Urs on 15.8.1987 in the afternoon. While they were returning from the Mazar to their house, the accused Islam (since dead) and Rafatullah alias Babulla met them near Chail Tehsil. THE accused called, Rais and walked together talking to each other. When they reached at about 5.00 p.m. in front of the Rickshaw Khatal of Azimullah situated in Machhali Bazar, the accused Rafatullah alias Babulla abused Rais alias Baggar. Rais objected to it. Consequently Rafat Ullah alias Babulla challenged and said "Maro Sale Ko". THE accused Islam lifted a Dhuri of Rickshaw lying at the khatal and struck 2-3 blows with it on the head of Rais, who then fell down. Thereupon both the accused-appellants put the Dhuri on the neck of Rais and pressed it hard and thereby killed him. THE complainant Mohd. Idris and others made hue and cry and followed the accused who threatened them. THE accused ultimately ran away. Hearing the hue and cry many persons rushed to the scene of occurrence. Leaving the dead body of Rais to the care of Anis, Smt. Noor Jahan and Smt. Anwari, the complainant Mohd. Idrish went to the police station to lodge a report orally. On his oral report, Head Moharrir present on duty at the police station Colonelganj, Allahabad, prepared the chik F.I.R. Ex. Ka-1 and made an entry in the General Diary at serial No. 42, an extract of which is EX Ka-13 and ultimately registered a case against the accused. After the registration of the case, its investigation was entrusted to the then sub- Inspector Panna Lal Verma P.W. 6, who proceeded to the place of occurrence. Reaching there he held the inquest proceedings and prepared the inquest report Ext. Ka-3. After the registration of the case, its investigation was entrusted to the then sub- Inspector Panna Lal Verma P.W. 6, who proceeded to the place of occurrence. Reaching there he held the inquest proceedings and prepared the inquest report Ext. Ka-3. Thereafter he seized, sealed and sent the: dead body in a bundle for post-mortem examination after observing necessary formalities in connection therewith. Thereafter he inspected the place of occurrence and prepared its site plan Ex. Ka-9. He took into his custody a pair of Chappals of the deceased from the place of occurrence and prepared its Supurdginama Ex. Ka-10 and handed the Chappals over to Mohd. Idrish. He took into his custody the blood stained Rickshaw Dhuri (material Ex. 1) from the place of occurrence and prepared its Fard Ex. Ka-11. He also took into his custody the samples of blood stained and plain concrete (material) Exts. 2 and 3 respectively) from the place of occurrence and sealed them into two separate containers and prepared its Fard Ex. Ka-12. He took down the statements of the other witnesses. After the completion of the investigation into the case, he submitted a charge-sheet Ex. Ka-14 against the accused. He sent the blood stained and plain concrete, Rickshaw Dhuri, Pants and Bush-shirt of the deceased to the Chemical Examiner, Agra and after receipt of the report Ex. Ka-15 of the Chemical Examiner, Agra, he sent these articles to the Serologist for examination and report, which was subsequently received. Dr. R. N. Sharma, P.W. 5 conducted the post-mortem examination on the dead body of Rais alias Baggar on 16.9.78 at 4.35 P.M. and found the following ante-mortem injuries thereon. 1. Abrasion 2" x 1 /4" on the right upper portion of the forehead. 2. Abrasion 1 /2" x 1 /2" on the right side of the ear. 3. Lacerated wound bone deep :2" x 1/2" on the right side of the head 4' above the ear. 4 Lacerated wound 5" x 2" bane deep with two fractures of the bone pressed inside on the left side of the head about the ear. He found the rigor mortis present on the dead body. On internal examination he found the bone of the skull fractured at two places due to injury No. ft. He found the brain lacerated on account of the injury. He found the rigor mortis present on the dead body. On internal examination he found the bone of the skull fractured at two places due to injury No. ft. He found the brain lacerated on account of the injury. In his opinion, the death was caused due to the head injuries about a day earlier. 3. THE prosecution examined Mohd. Idrish P.W. 1, Smt. Noor Jahan P.W. 2. Mohd. Yasin P.W. 3, constable Surya Deo Tewari P.W. 4, Dr. R. N. Sharma P.W. 5 and Panna Lal Verma P.W. 6 and relied upon certain documents in support of its case. 4. THE accused pleaded not guilty. He has stated that all the allegations levelled against him are wholly wrong and incorrect. He has displayed his ignorance about many of the facts relating to the case. He has also stated that he has been falsely implicated on account of enmity. He has further stated that the police of P. S. Colonelganj detained him in the MISA and falsely implicated him in certain cases. He has further stated that in the murder of the brother of Idrish, his older brother Safat Ullah, who was a prosecution witness, did not give the evidence and therefore, Mohd. Idrish generated the feelings of animosity towards him and his brother in collusion with the police got him falsely Implicated in the murder of Rais, who was himself a notorious criminal for the offences like murders and robberies. Consequently the deceased had several enemies. Having heard the learned counsel for the parties and having considered the evidence on record, the learned Vth Additional Sessions Judge, Allahabad convicted and sentenced the accused-appellant through his impugned judgment and order as mentioned earlier. Aggrieved, he preferred this appeal against the same. 5. WE have heard the learned counsel for the parties and have gone through the evidence on record carefully. 6. THERE is a distance of one kilometer between the place of occurrence and the police station Colonelganj. Mohd. Idrish P.W. 1 had gone on foot to the police station from the place of occurrence. He had met the Head Moharrir there and remained with him for half an hour. Thereafter he had asked for water to drink. He remained at the police station for about an hour. The Daroga was sitting there. Mohd. Idrish P.W. 1 had gone on foot to the police station from the place of occurrence. He had met the Head Moharrir there and remained with him for half an hour. Thereafter he had asked for water to drink. He remained at the police station for about an hour. The Daroga was sitting there. The Head Moharrir and the Daroga heard all about the incident and consequently met the Inspector of the police station, who directed them to proceed at once to the place of occurrence Consequently, they departed for the place of occurrence. After their departure. Head Moharrir asked him (Mohd. Idrish P.W. 1) to make an oral report about the incident. The incident is said to have taken place on 15.9.78 at 5.00 P.M. The report was lodged at 5.30 P.M. same day. The name of the accused does not fluid place in the Panchayatnama and other documents connected therewith. In view of all this, the chik Ex. Ka-12 can very well be said to be anti-timed. The contention of the learned counsel for the accused appellant to this effect appears to he correct. The Investigating Officer Panna Lal Verma P.W. 6 started writing the case diary simultaneously with the writing of the chik F.I.R. and making all the entries in the General Diary. This indicates nothing but the fact that the chik F.I.R. was prepared after due deliberation and consultation. The contention of the learned counsel for the accused-appellant to this effect is not devoid of force. 7. MOHD. Idrish P.W. 1 has stated that there was no Urs on the Mazar existing in the Katra Turkana Mohalla near the Kachahari Allahabad on the date of the incident. But there is a specific mention in the chik F.I.R of the fact that he (MOHD. Idrish) along with his younger brother Rais alias Baggar (deceased), Smt. Noor Jahan and Smt. Anwari had gone to the said Mazar for Urs and that they were returning therefrom. When confronted, he denied having got anything as such written in the First Information Report. He has in the same continuation stated that the fact of Urs might have been wrongly written in the First Information Report. Therefore, the chik report/F.I.R. is indicative of falsehood. 8. THE chik F.I.R. is completely silent on the point of the position in which Rais alias Baggar deceased had fallen down after receiving injuries. He has in the same continuation stated that the fact of Urs might have been wrongly written in the First Information Report. Therefore, the chik report/F.I.R. is indicative of falsehood. 8. THE chik F.I.R. is completely silent on the point of the position in which Rais alias Baggar deceased had fallen down after receiving injuries. It is only in his examination that Mohd. Idrish P.W. 1 has stated that Rais alias Baggar had fallen the right ear down after receiving injuries. It was then that the accused- appellant put the iron Dhuri of Rickshaw on his neck and pressed it with full force and weight and thereby killed him. Smt. Noor Jahan P.W. 2 has, on the other hand, stated that Rais alias Baggar had fallen face down on the road after receiving injuries and the accused-appellant along with Islam put the Dhuri of the Rickshaw behind his neck and pressed It both sides with their legs and ultimately killed him. THE Panchayatnama shows that the dead body was lying. Yasin P.W. 3 has stated that the accused-appellant and Islam put the Dhuri of the Rickshaw on the front of the neck of Rais and killed him by pressing it on both sides. THE statements of these witnesses are inconsistent with and contradictory to one another and therefore, do not inspire confidence. Dr. R. N. Sharma P.W. 5 has categorically stated that he had not found any symptoms of throttling at the time of conducting the post-mortem examination on the dead body of Rais alias Baggar. The medical evidence does not, therefore, corroborate the occular account. 9. THE Iearned Vth Additional Sessions Judge, Allahabad, has, inter alia, observed in paragraph 15 of his judgment as under : "THE learned defence counsel pointed out that since Dr. R. N. Sharma (P.W. 5) did not find any injury on the neck of the deceased Rais vide postmortem report (Ex. Ka-2), the prosecution case that Free wheel of the Dhuri was pressed on the neck of Rais is totally belied. It is true that Dr. R. N. Sharma (P.W. 5) did not find any injury of the neck of Rais but it does not mean that the prosecution evidence is contradicted by the medical evidence and cannot be believed. I have already discussed that the only witness Mohd. It is true that Dr. R. N. Sharma (P.W. 5) did not find any injury of the neck of Rais but it does not mean that the prosecution evidence is contradicted by the medical evidence and cannot be believed. I have already discussed that the only witness Mohd. Idrish (P.W. 1) slated that the Free wheel of the Dhuri was put and pressed on the neck by the accused and the neck was crushed out of sheer misunderstanding on his part as he saw it from a distance and did not verify it. There is no other witness to say like this. To my mind, it appears that the Free wheel of the Dhuri remained) by the side of the neck and only the round rod was pressed on the neck and, therefore, no injury was caused on the neck. THE inquest report (Ex. Ka-3) reacts that besides the other four injuries, there was a contusion and a bruise on the left side of the neck. All the other four injuries were confirmed by Dr. R. N. Sharma (P.W. 5) in his post-mortem report (Ex. Ka-2). Since he examined the dead body after about 24 hours, it is quite probable that he might not have noticed the slight contusion and bruise on the left side of the neck. This injury was also probable because the deceased fell down on the road and the round rod could be pressed on one side only if the Free wheel remained on the other side away from the neck." 10. THE above observations are based on guess and surmises. THE conviction based on conjecture cannot be sustained. It was suggested that Rais alias Baggar was involved in a number of Criminal cases. Mohd. Idrish P.W. 1 has given an evasive reply to this suggestion. However, the suggestion is not without basis. Therefore, it is quite likely that Rais alias Baggar might have been murdered by some one other than accused-appellant and Islam in the night and in some other mode and manner than that in which his murder is alleged to have been committed. THE contention of the learned counsel for the accused- appellant to this effect has substance. In the result the appeal is allowed. The impugned judgment and order are set aside. The accused-appellant is acquitted of the offences with which he has been charged. He is on bail. THE contention of the learned counsel for the accused- appellant to this effect has substance. In the result the appeal is allowed. The impugned judgment and order are set aside. The accused-appellant is acquitted of the offences with which he has been charged. He is on bail. His bail bonds are cancelled and sureties stand discharged. He need not surrender. 11. THE Criminal appeal No. 2665/79, Islam v. State connected with this appeal stands already abated due to his death. Appeal allowed.