D. K. TRIVEDI, J. ( 1 ) THE present criminal appeal has been preferred by the appellants against the judgment and order dated 16/5/1980 passed by the III Addi. Sessions Judge, Pratapgarh convicting the appellants u/sec. 302/34 IPC and sentencing each of them to Imprisonment for Life. Accused Nasir was further convicted u/sec. 323 IPC for six months R. I. and accused Tarif was convicted u/sec. 323/34 IPC for 6 months R. I. also. Both the aforesaid sentences were directed run concurrently. ( 2 ) INITIALLY, two more persons alongwith the appellants were prosecuted in this case. It is alleged that the incident took place in village Sarai Bhimsen, H/o Jahanpur, P. S. Jethwara, District Pratapgarh, on 9/4/1979 at about 4. 00 p. m. Accused Mohd. Hanif and Mohd. Ali who were acquitted are real brothers. Accused Tarif is the son of Mohd. Hanifand Nasir is son of Mohd. Ali. On the other hand Smt. Hajara Begum complainant is the wife of Siddiq who is real brother of deceased Tajammul Husain. It is said that Siddiq used to work in Bombay and Tajammul Husain (deceased) as well as Smt. Hajara Begum used to live in the village. It is further alleged that about four months before this incident, a case u/sec. 107 Cr. P. C. was fought between the parties. It is not disputed that there was an enmity between the members of two families. It is said that on the date of the incident at about 4 p. m. she-goats of Mohd. Ali accused entered into the Khalihan of Smt. Hajara Begum and started eating the thrashed Arhar crop of Smt. Hajara Begum. It is also alleged that two bullocks of Mohd. Hanif went inside her paddy field and started grazing. Smt. Hajara Begum then made a complaint but the accused persons abused her and refused to drive away their cattk:jn the meantime, Tajammul Husain reached there and he drove away the she- goats and proceeded to drive away the bullocks from the paddy field by Smt. Hajara Begum. It is said that as soon as he covered 20-25 steps, four accused persons namely; Mohd. Ali armed with spear, Mohd. Hanif armed with Farsa and the present appellants armed with lathis reached there and on the institution of accused Mohd. Hanif, they all started assaulting Tajammul Husain with their respective weapons. It is said that as soon as he covered 20-25 steps, four accused persons namely; Mohd. Ali armed with spear, Mohd. Hanif armed with Farsa and the present appellants armed with lathis reached there and on the institution of accused Mohd. Hanif, they all started assaulting Tajammul Husain with their respective weapons. Smt. Hajara Begum raised an alarm and tried to save Tajainmul Husain but accused Nasir also assaulted her with lathi. It is said that on hearing the alarm, the other persons of the village reached there and on their intervention the accused persons ran away. As Tajammul Husain received serious injuries, therefore, the villagers started making preparation to take Tajammul Husain to hospital. On the other hand Smt. Hajara Begum got a report (Ext. Ka-1) prepared by Basant Bahadur Singh, P. W. 2, and went to the Police Station Jethware, where she lodged it on the same date at 8. 15 p. m. On receipt of the said report, constable moharrir Server Husain prepared a chik report Ext. Ka-16 and registered the case in the G. D. Ext. Ka-17. On the other side, the witnesses after making arrangement for a conveyance, took Tajammul Husain to PHC Mandhata. It is said that Tajammul Husain reached the Hospital at about 10. 00 p. m. where his injuries could not be examined due to poor light and it is said that he died in the PHC Mandhata at about 3. 45 a. m. One Dr. I. P. S. Chauhan sent a report Ext. Ka. 3 to P. S. Mandhata about the death of Tajammul Husain. P. W. 9 O. P. Tripathi, S. I. was not present at the time oflodging of the F. I. R. and he received the papers of this case on 10/4/1979 at 5 a. m. in village-Sarai Indrawat. On receipt of wire-less message from P. S. Mandhata about the death of Tajammul Husain, the case was also converted under Section 302 IPC at P. S. Jethwara. The Investigating Officer, reached PHC Mandhata and prepared the inquest report of the dead body (Ext. Ka-4) as well as theother relevant papers Exts. Ka-6 to Ka-10. On the same date at 3. 30 pm. the Investigating Officer reached the place of the incident and interrogated Smt. Hajara Begum, Imam Ali, Ibrahim and other witnesses and he prepared the site plan Ext. Ka-4) as well as theother relevant papers Exts. Ka-6 to Ka-10. On the same date at 3. 30 pm. the Investigating Officer reached the place of the incident and interrogated Smt. Hajara Begum, Imam Ali, Ibrahim and other witnesses and he prepared the site plan Ext. Ka-11, and took sample of blood stained and plain earth from the place of the incident. P. W. 7 Dr. R. C. Joshi examined the injuries of Smt. Hajara Begum on 10/4/1979 at 11. 30 a. m. No mark of exterpal injury was found on her body. The doctor prepared the injury report Ext. Ka-4. P. W. 6 Dr. O. P. Shama conducted the autopsy on the dead body of Tajammal Husain on 11/4/1979 at 11. 45 p. m. vide post mortem report Ext. Ka-2. The doctor found the following antemortem injuries on the dead body of deceased Tajammul Husain:-, (1) Lacerated wound 2 x bone deep on the left side skull, 11/2 above the left eye brow. (2) Lacerated wound 4 x bone deep on the left side of skull 3 above the left ear. (3) Lacerated wound 1 x 1/2 on the back of middle of skull. (4) Contusion 4 x 1 on left forehead. (5) Abrasion 2 x 11/2 on the left side of face. (6) Contusion 2 x 2 on the middle of left thigh. (7) Contusion 3 x 1 on the back of left elbow. (8) Area of multiple contusion on the outer and upper left arm. (9) Contusion 3 x 1 on the right knee. (10) Contusion 4 x 1 on the middle of right leg. (11) Incised wound 1 x 1/2 x muscles deep on the outer part of left back. On internal examination, it was found that there was a fracture of right temporal bone extending to parietal bone. According to doctor the death was caused due to shock and haemorrhage. The doctor further gave an opinion that injury No. 2 was sufficient in the ordinary course of nature to cause death. ( 3 ) ON the other hand, the accused denied the prosecution case and stated that Tajammul Husain was assaulted in darkness at some other place and they have been falsely implicated in this case due to enmity. ( 4 ) THE prosecution in support of its case examined nine witnesses. ( 3 ) ON the other hand, the accused denied the prosecution case and stated that Tajammul Husain was assaulted in darkness at some other place and they have been falsely implicated in this case due to enmity. ( 4 ) THE prosecution in support of its case examined nine witnesses. Out of them, P. W. 1 Smt. Hajara Begum, P. W. 4 Ibrahim and P. W. 5 Imam Ali are the witnesses off act. P. W. 2 Basant Bahadur Singh is the scribe of the F. I. R. and he accompanied with Smt. Hajara Begum upto the Police Station, P. W. 3 Maqbool Hasan filed an affidavit pointing out that he brought the dead body of Tajammul Husain for autopsy. P. W. 6 Dr. O. P. Sharma conducted autopsy on the dead body of deceased Tajammul Husain and proved the post-mortem report Ext. Ka-2. P. W. 7 Dr. R. C. Joshi, Medical Officer, at PHC Mandhata, examined the injuries of Tajammul Husain when he was alive and also examined the injuries of Smt. Hajara Begum on the next date. P. W. 5 Mahadeo Prasad, Head Moharrir, P. S. Jethwara stated that the articles of the case remained sealed. P. W. 9 Om Prakash, S. I. conducted the investigation in this case and after completing the investigation, submitted the charge-sheet against the accused persons. ( 5 ) THE learned Sessions Judge after considering the evidence on the record came to the conclusion that the prosecution has failed to prove the guilt of two of the accused persons namely; Mohd. Hanif and Mohd. Ali and, therefore, they were acquitted. By the same judgment, the learned Sessions Judge came to the conclusion that the prosecution has proved the guilt of two accused persons namely; Nasir and Tarif beyond reasonable doubt and therefore, he convicted and sentenced the appellants as mentioned above. Aggrieved by the aforesaid judgment and order, the appellants have preferred the instant appeal before this Court. ( 6 ) WE have heard the learned Counsel for the appellants as well as learned Addi. Govt. Advocate for State and have perused the records. The main contention of the appellants Counsel is that there is no distinction in between the case of appellants and those who have been acquitted by the Trial Court. Therefore, the learned Sessions Judge has committed an error in convicting the appellants u/sec. 302 IPC. Govt. Advocate for State and have perused the records. The main contention of the appellants Counsel is that there is no distinction in between the case of appellants and those who have been acquitted by the Trial Court. Therefore, the learned Sessions Judge has committed an error in convicting the appellants u/sec. 302 IPC. The learned Counsel for the appellants further pointed out that the prosecution case as alleged by the prosecution is on the face of it is not acceptable. Hence in these circumstances, the Court below committed an error in convicting the appellants on the basis of the evidence adduced by the prosecution. ( 7 ) WE find force in this contention. As pointed above, the prosecution case is that accused Mohd. Ali armed with spear, Mohd. Hanif armed with Farsa and the appellants armed with lath is assaulted Tajammul Husain with their respective weapons. The doctor who conducted the autopsy on the dead body of deceased Tajammul Husain, did not find any injury of spear or Farsa on the body of deceased Tajammul Husain. It is consistent case of the prosecution that all the aforesaid four accused persons assaulted the deceased by their respective weapons. It is not possible to make any distinction in between the aforesaid four accused persons. The learned Sessions Judge acquitted two of the accused persons namely; Mohd. Ali and Mohd. Hanif overlooking the fact that the case of the appellants cannot be separated from the case of accused Mohd. Hanif and Mohd. Ali and further the appellants cannot be convicted only on the basis of the fact that the doctor found lathi injury on the person of the deceased. The question is as to whether the testimony of these eye witnesses is worth to be believable or not? Keeping in mind the above mentioned discrepancy in our opinion no reliance can be placed on the statements of the eye witnesses and further the appellants cannot be held guilty only because the deceased had lathi injuries. The statement P. W. 1 Smt. Hajara Begum is alleged to be supported of by two witnesses namely P. W. 4 Ibrahim and P. W. 5 Imam Ali. Both of the are residents of villagesarai Bhimsen and Jahanpur respectively. The statement P. W. 1 Smt. Hajara Begum is alleged to be supported of by two witnesses namely P. W. 4 Ibrahim and P. W. 5 Imam Ali. Both of the are residents of villagesarai Bhimsen and Jahanpur respectively. P. W. 4 Ibrahim stated that he was harvesting the wheat crop in his field and ran towards place of the incident on hearing alarm raised by Smt. Hajara Begum. Admittedly, he is inimical to the accused and he admits that when he reached the place of the incident, he saw that Tajanuuul Husain was lying on the ground. However, he stated that he saw that all the four accused-persons assaulted Tajammul Husain with their respective weapons. Similarly, P. W. 5 Imam Ali is also inimical witness and he also stated that he was going to his Khalihan with a bundle of wheat crop on his head. He further stated that on hearing the alarm, he threw the said bundle and ran towards the place of the incident and according to him all the four accused persons assaulted Tajammul Husain with their respective weapons. As pointed out above the testimony of these witnesses did not find support from the medical evidence and in view of these infirmities, in our opinion, the testimony of these witnesses is not worth to be believable. The learned Sessions Judge while considering the prosecution case has also disbelieved the prosecution case against two of the accused persons namely; Mohd. Hanif and Mohd. Ali. ( 8 ) APART from this, it is the case of the prosecution that Tajammul Husain reached the PHC Mandhata at about 10. 40 a. m. and there he died at about 3. 45 p. m. It is also admitted fact that in spite of the fact that Tajammul Husain was in the hospital, his medical examination did not take place. It is not possible to believe that a person in an injured condition reached the hospital and remained there but no action has been taken for his medical examination or shifting him to other hospital for his medical examination. It is alleged that the voltage of the light was so low, therefore, the medical examination could not be done but we are unable to accept this explanation. If the voltage of the light was so low then they can arrange some other light also. It is alleged that the voltage of the light was so low, therefore, the medical examination could not be done but we are unable to accept this explanation. If the voltage of the light was so low then they can arrange some other light also. Non-examination of the injured in the hospital is a very important feature and throws doubt about the genuineness of the prosecution case. It is also said that one Dr. J. P. S. Chauhan sent a message Ext. Ka-3 that Tajammul Husain died at about 3. 45 a. m. on the next day. The Investigating Officer sent back the said letter asking him the time of admission of the deceased in the hospital on which the Dr. R. C. Joshi made an endorsement regarding time at 10. 30 p. m. On this basis, it is said that the deceased Tajammul Husain reached the hospital at 10. 40 p. m. and remained there upto 3. 45 a. m. when he died in the PHC Mandhata. P. W. 7 Dr. R. C. Joshi admits that he is not in a position to tell as to who made this entry in this register about the arrival of Tajammul Husain in the Hospital. A perusal of this document and the circumstance in which this note is exchanged itself creates doubt and does not inspire confidence. ( 9 ) IN any case, as pointed out above, the Trial Court has already dis-believed the prosecution case to the extent of accused Mohd. Hanif and Mohd. Ali therefore, in these circumstances, it is not possible to rely on the testimony of these eye witnesses for convicting the appellants in this case. ( 10 ) IN the result, the present criminal appeal is hereby, allowed. The conviction and sentence awarded by the Court below to the appellants are hereby set aside. The appellants are on bail. They need not surrender. Their bail bonds are cancelled and sureties stand discharged. Appeal allowed. .