KUNDAN SINGH, J. This appeal is directed against the judgment and order, dated 6-3-1980 of Sri Harish Chandra Saxena, the then III Additional Session Judge, Saharanpur, in S. T. No. 97 of 1979, convicting the appellants under Section 302 read with Section 149, I. P. C. and sentencing each of them to imprisonment for life and also further convicting them under Section 323 read with Section 149, I. P. C. and awarding six months R. I. to each of them. He also held Chandoo, Isam Singh, Bimal and Dal Singh appellants guilty of the charge punishable under Section 148, I. P. C. and accordingly he convicted and sentenced them under that count to a term of two years R. I. , each, whereas Mehar appellant was further held guilty under Section 147, I. P. C. and was convicted there under and sentenced to one years R. I. However, he directed the sentences of all the appellants passed under different counts to run concurrently. 2. Briefly stated, the prosecution case, as set out in the first infor mation report, was that accused Makhan and Mangal and the informant Ram Kishan (PW 1) and Sohan deceased were residents of village Manik Mau, within police station Kotwali Dehat, district Saharanpur. Makhan accused had no issue. His maternal nephew (Bhanja) Mehar and Smt. Kela daughter of his sister-in-law (Sali) were residing with him. Mehar had developed illicit connection with Smt. Kela, which was not liked by the residents of Manik Mau. Sohan deceased, Phulloo and some other resi dents of the village made a complaint to Makhan about that illicit connec tion of Mehar and Smt. Kela and asked him to export them from the village as their unholy affair was polluting the environment of the entire village. On 22- 10-1978 Smt. Kela was sent to her in-laws house. On the fateful day, i. e. 23-10-1978, at about 6. 00 p. m. Sohan was going towards fields in the company of Pitambar and Ram Kishan, Sala and cousin, respec tively, of the deceased. When they were passing through a lane in front of the house of Makhan, the latter was standing at the door of his house. At that juncture Makhan asked Sohan as to why he was defaming his daughter (Kela ). Thereupon Sohan reiterated that it was their own misdeed which was defaming them. When they were passing through a lane in front of the house of Makhan, the latter was standing at the door of his house. At that juncture Makhan asked Sohan as to why he was defaming his daughter (Kela ). Thereupon Sohan reiterated that it was their own misdeed which was defaming them. Makhan started abusing Sohan for which Ram Kishan and Pitambar reprimanded Makhan. In the meantime the appellants and Mangal came out of the Bagar of Makhan, of them, Bimal and Isam Singh were armed with knives, Dal Singh with an axe, Chandoo with a spear and Mehar with a lathi. They also abused Sohan and his companions and exhorting to kill him they all pounced upon the deceased and his associate Ram Kishan and Pitambar and started inflicting injuries with their respec tive weapons. During assault informant Ram Kishan and Pitambar tracked behind and, therefore, they received only minor injuries. On the hue and cry raised by Sohan and his companions, Suba and Amarnath arrived on the spot. Bimal and Isam Singh caused kaifc injuries on the person of Sohan while Dal Singh and Mehar inflicted axe and lathi injuries, respectively. Chandoo also wielded his spear on Sohan but as the luck would have it, the blow fell on Dal Singh instead of Sohan for which Dal Singh reprimanded Chandoo. Mangal and Makhan grappled with the deceased and dragged him into the Bagar saying that they would kill him. In the Bagar also the deceased was beaten by the accused with their respec tive weapons and thereafter his body was thrown on the kharanja in the lane, various persons had collected on the spot and after seeing them the accused persons had run away towards east of the village. Sohan died on the spot and his dead-body was lying there in the lane. Ram Kishan (PW 1) alongwith his brother Raghubir, Kurdi and Pooran went to police station for lodging the F. I. R. when they were going near the Cotton Mill, an employee of the Mill came across in the way to whom they narrated the entire episode and got a report of the incident scribed from him. That report was then sent to police station Kotwali Dehat, Saharanpur through Raghubir and Kurdi, who lodged it there at 8. 05 p. m. on the same day, i. e. , 23-10-1978. 3. That report was then sent to police station Kotwali Dehat, Saharanpur through Raghubir and Kurdi, who lodged it there at 8. 05 p. m. on the same day, i. e. , 23-10-1978. 3. The investigation of the case was entrusted to Sub-Inspector Satish Chandra Sharma, who has been examined as PW 8 in this case. He reached the venue the same day in the company of R. D. Singh, Sub- Inspector and five constables. On his direction R. D. Singh (PW 6) prepared the inquest report and he himself recorded the statement of Ram Kishan (PW 1) and prepared the site plan of the spot, collected blood stained and unstained earth from the place of incident and then sent the deadbody to mortuary through three constables for post-mortem examina tion. In the night the Investigating Officer stayed in the village and next morning started further investigation at 6. 30 a. m. He recorded statements of Pitambar (PW 2), R. D. Singh, Sub-Inspector and of other persons and then returned to Saharanpur. There he met Dal Singh in the Hospital on 24-10-1978 but he could not arrest him and record his statement as he was lying unconscious. Thereafter witnesses Amarnath and others were inter rogated by him on 26-10-1978. However, the statements of Phulloo and others were taken down on 7-12-1978. The accused could not be arrested as they surrendered in court. 4. Dr. Govind Swarup Gupta (PW 9) had medically examined Ram Kishan and Pitambar at 2. 50 p. m. and 3. 00 p. m. , respectively, on 24-10-1978. On the person of Ram Kishan he found one scabbed abrasion, one scabbed abraded contusion and one lacerated wound skin deep whereas on the person of Pitambar scabbed abraded traverse swelling on the dorsum of left hand was found. The autopsy on the deadbody of Sohan was conduct ed by Dr. Ramesh Chaturvedi (PW 4) at 4. 30 p. m. on 24-10-1978, who found two lacerated wounds, seven contusions, three incised punctured wounds, two incised wounds and two abrasions on his body. After com pleting remaining formalities the Investigating Officer submitted charge-sheet in court against the appellants, Makhan and Mangal accused. 5. The prosecution examined 9 witnesses in all to prove its case. Out of them, Ram Kishan (PW 1 ). After com pleting remaining formalities the Investigating Officer submitted charge-sheet in court against the appellants, Makhan and Mangal accused. 5. The prosecution examined 9 witnesses in all to prove its case. Out of them, Ram Kishan (PW 1 ). Pitambar (PW 2) and Amarnath (PW 3) were the witnessss of factum of the incident while others were formal in nature. 6. The accused persons denied the prosecution version and pleaded not guilty to the charges- They stated that they have been falsely implicated due to enmity. Dal Singh in his statement recorded under Section 313, Cr. P. C. stated that Sohan and others were trafficking in the manufacture of illicit liquor besides doing service in the Cotton Mill. On the day of occurrence a constable came in the village and met him which was not relished by Sohan deceased. In the evening Sohan came to him with a spear in his hand. On seeing him Sohan started abusing him and when he pro tested to it, he gave him spear blows. His mother-in-law also had come on the spot and when she tried to intervene, she was also assaulted by Sohan. That villainy of Sohan offended the villagers who assaulted him. In retalia tion he also beat him. Accused Bimal stated that his father Mangal had appeared as a witness against the complainant party and for that reason he was also raped in the present case. Isam Singh accused stated that Sohan assaulted his father Dal Singh and, therefore, out of that enmity he was also nominated as an accused in the present crime. According to Chandoo accused, he was not present on the spot. The complainant side asked him to appear as a witness against the accused but he refused to oblige them and hence he was involved in the present case. Accused Mehar stated that Sohan and others were trading in the illicit liquor and they had a doubt that he was giving secret information of their activities to the police and on that account he was also falsely implicated in the present case. 7. The accused also examined Dr. R. A. Goyal (DW 1) and Dr. J. Pal Chandra (DW 2) to prove the injuries of Dal Singh and Smt. Mukhi. According to Dr. R. A. Goyal he examined the injuries of Dal Singh on 23- 10-1978 at 10. 7. The accused also examined Dr. R. A. Goyal (DW 1) and Dr. J. Pal Chandra (DW 2) to prove the injuries of Dal Singh and Smt. Mukhi. According to Dr. R. A. Goyal he examined the injuries of Dal Singh on 23- 10-1978 at 10. 00 p. m. and had found two incised wounds on his left fore arm whereas Dr. Chandra (DW 2) deposed that on medical examination of Smt. Mukhi on 25-10-1978 at 5. 00 p. m. he found four abrasions, one abrad ed contusion and traumatic swelling on the dorsum of left foot. Above is the gist of the entire evidence led by both the sides. 8. During trial co-accused Mangal died and, therefore, the trial against him stood abated. However, after going through the entire evidence on record, the learned trial Judge held Makhan co-accused not guilty of and of the charges levelled against him and accordingly he acquitted him. The remaining accused, who are appellants herein, were, however, found guilty on all the charges framed against them and hence they were convicted and sentenced as mentioned above. Against that judgment the convicts have now come up to this Honble Court in the above appeal. 9. We have beared Sri P. N. Misra learned counsel for the appellant and learned A. G. A. at length and closely examined the evidence available on record. Mainly the argument of the learned counsel for the appellants was two-fold First, that the F. I. R. was ante-timed and secondly that none of the persons who had come forward to depose for the prosecution claiming themselves to be eye-witnesses of the incident was present on the spot and not a single independent witnesses had come to support the prosecution case. According to him, in all probabilities the incident had occurred in the cover of darkness and the defence version is more convincing and plausible in comparison to that of the prosecution. 10. While address on the first limb of his argument, Sri Misra invited our attention to the F. I. R. , inquest report and challan lash in a bid to show that the investigation in the case was tainted and the prosecution has not come with clean hands. According to the F. I. R. the distance between the place of occurrence and the police station Kotwali Dehat, Saharanpur is six kilometres. According to the F. I. R. the distance between the place of occurrence and the police station Kotwali Dehat, Saharanpur is six kilometres. The Investigating Officer had reached the venue at about 9. 00 p. m. on 23-10-1978. He got the inquest report prepared from his fellow Sub-Inspector R. D. Singh and then despatched the corpse to mortuary at 11. 00 p. m. in the same night through three constables Dharmapal Singh, Ved Prakash and Gajraj Singh. From Kotwaii Dehat to Police Lines may be a few kilometres a& both situate in the city of Saharanpur. Similarly, from the Police Lines the mortuary also may at a few kilometres distance. Be that as it may, both Police Lines and Mortuary may not be 8 or 9 kilo metres away from Manik Mau where Sohan was done to death. In the records of police lines the entry of arrival of deadbody is of 1. 45 p. m. the next day, i. e. 24-10-1978 whereas receipt of deadbody at the mortuary was at 3. 15 p. m. that very day. Thus entries in the records of police liness how that the deadbody reached there after about 15 hours of its despatch from village Manik Mau and then two hours thereafter at the Mortuary whereas as indicated above Manik Mau was not beyond 8 or 9 kilometres away either from Police Lines or the Mortuary and so late arrival cast a doubt on the prosecution case. The only inference that can be drawn from the delay in reaching the deadbody at the Police Lines and the Mortuary that the F. I. R. was not in existence till the Investigating Officer reached the place of incident. In the night Pitambar, the brother-in-law of the deceased was called and then deliberations and cerebrations went on and then the story of presence of Ram Kishan was invented and minor injuries on their person were manufactured just to show their presence on the spot at the time of incident. This conclusion is further corroborated by the fact that though Pitambar has claimed his presence in the village when the Investigating Officer reached by venue but his statement was not recorded by the Investi gating Officer in the night when Ram Kishan was interrogated. This conclusion is further corroborated by the fact that though Pitambar has claimed his presence in the village when the Investigating Officer reached by venue but his statement was not recorded by the Investi gating Officer in the night when Ram Kishan was interrogated. Next morning when Pitambar was available his statement had been recorded by the Investigating O racer and then the deadbody was sent to Mortuary for post-mortem examination and then the ante-timed F. I. R. was lodged at the police station. Further, the F. I. R. is said to have been sent to police station through Raghubir, brother of Ram Kishan informant but the chick report does not bear his signature and no reason is forthcoming from the side of the prosecution why his signature was not obtained on the chick report if the F. I. R. was lodged as alleged by the prosecution and we have no manner of doubt in accepting the submission of the learned counsel for the appellants that the F. I. R. was handed over to the Investigating Officer next day in the village and on the basis of that written report a case was registered on 24-10-1978. Three constables are said to have carried the deadbody of Sohan in the night of 23-10-1978 itself but none of them has been examined in this case and their evidence has deliberately been withheld by the prosecution. Had it been a truth that the deadbody was sent at 11. 00 p. m. in the night of 23-10-1978 itself and any of the three constables who carried the corpse was examined, lie could have explained the reason for delay in reaching the deadbody in the Police Lines and then in the Mortuary but by withholding their evidence the defence has been deprived of eliciting the truth. Further, it has come in evidence that Ram Kishan and Pitambar also suffered injuries during the course of incident and this fact is also mentioned in the F. I. R. If the F. I. R. was lodged at 8. 05 p. m. before the departure of the Investigating Officer to village Manifc Mau for the purpose of investigation, there is no explanation as to why he did not send the injured witnesses to Saharanpur for their medical examination in the same night. 05 p. m. before the departure of the Investigating Officer to village Manifc Mau for the purpose of investigation, there is no explanation as to why he did not send the injured witnesses to Saharanpur for their medical examination in the same night. This is one of the factors which goes a long way to support the defence version that Ram Kishan and Pitambar were not present at the scene of occurrence and the injuries on their person were self inflicted or manufactured. 11. We are conscious that sometime delay occurs in despatch of the deadbody to mortuary for reasons more than one but here the situation is quite different. From the very beginning the prosecution case was that the deadbody was dispatched at 11. 00 p. m. in the night of 23-10-78 itself and we are unable to digest the fact that the constables took 15 hours for reaching the police lines which in any -case could not be more than 8 kilo metres from the place of incident. Such a distance could have been covered by them within 1 1/2 hours had the deadbody been sent at 11. 00 p. m. as stated by the Investigating Officer. Here the late arrival of deadbody at the police lines and mortuary rather supporting the prosecution case contributes to the defence version that the F. I. R. was not in existence till the Investigating Order reached the spot and neither Ram Kishan nor Pitambar was present at the scene of occurrence at the time of incident. Pitambar was sent for from his village in the night and then deliberations and consulta tions went on and next day the ante-timed as reported was handed over to the Investigating Officer in the village and then the deadbody was despatch ed to the mortuary. We are, therefore, in agreement with Sri Misra that the F. I. R. was not in existence by the time the Investigating Officer reached the place of occurrence. 12. Now turning to the second submission of the learned counsel for the appellants that none of the persons examined as eye-witnesses was present on the spot at the time of incident, it may be mentioned that two of them, namely Ram Kishan and Pitambar are closely related to the deceased, being his nephew and Sala, respectively and the third one viz. Amarnath (PW 2) was working in the Cotton Mill with Sohan deceased at the time of incident. Since Ram Kishan and Pitambar, who have been examined as PW 1 and PW 2, respectively, have claimed themselves as eye witnesses and they were allegedly with Sohan deceased from beginning to end of the incident, we will deal with their evidence after that of PW 3 Amarnath, who has tried to prove himself as independent and eye-witness of the incident. 13. At the very outset it may be mentioned that though this witness has been specifically named as the person who had seen the actual incident but the Investigating Officer who had reached the place of incident at 9. 00 p. m. of 23-10-1978 itself had examined him after four days. The witness has deposed in court that he had pointed out the place to the Investigating Officer from where he had seen the incident but no such place has been shown in the site plan. The site plan, according to the Investigating Officer, was prepared in the night of 23-10-1978 just after 3 hours of the incident. If the F. I. R, was lodged at 8. 05 p. m. on 23-10-1978 and Amarnath (PW 3) was cited as an eye-witness in that report, we think he should have been the first person to be interrogated by the Investigating Officer as the other two witnesses were closely related to the deceased. Had he been present on the spot at the time of preparation of the site plan and he had pointed out the place to the Investigating Officer from where he had witnessed the incident, the Investigating Officer must have interrogated him at the very first instance because he was named as an eye-witness of the incident. The delay in recording his statement under Section 161, Cr. P. C. leads only to the conclu sion that either he was not present in the village on that day or by the time the Investigating Officer left the village on 24-10-1978 the F. I. R. was not in existence. As mentioned earlier, Amarnath was working with Sohan deceased in the Cotton Mill. Admittedly he was interrogated four days after the incident and in his statement recorded under Section 161, Cr. P. C. he has stated the events that took place in the very iridium of the incident. As mentioned earlier, Amarnath was working with Sohan deceased in the Cotton Mill. Admittedly he was interrogated four days after the incident and in his statement recorded under Section 161, Cr. P. C. he has stated the events that took place in the very iridium of the incident. That statement of the witness does not reconcile with the statement that he made in the court that he had reached the venue when Sohan was being beaten and Ram Kishan and Pitambar were standing at a distance in injured condition. While making statement in court, a question was put and a reply was invited from him as to how many houses intervene the place of occurrence and his house. In the beginning he tried to give an evasive reply by saying that he had not counted the intervening houses but later on gave their fugures as 40 or 50. On his own saying he had come from his house on hearing the noise. The assailants were seven in number, who after beating Sohan in the lane had dragged him into the Bagar and again they beat him there with their respective weapons. In all the deceased had sustained 15 injuries. According to the prosecution case no body went inside the Bagar out of the fear of the accused. After beating the deceased in Bagar his body is said to have been thrown in the lane and then the accused had fled away. That means that the incident ended within no time. If for argu ments sake it is assumed that Amarnath had come on the spot on hearing the noise at his house, which situate 40 or 50 houses away from the place of incident, he had no occasion to see the incident of beating in the lane at all and then in the Bagar. The first phase incident in the lane must have been over within few seconds in comparison to that of second phase incident in the Bagar where nobody dared to go inside the Bagar. Amarnath had come from a place which was 50 houses away and in any case the first phase incident in the lane might have been over by the time he reached the place of occurrence. Amarnath had come from a place which was 50 houses away and in any case the first phase incident in the lane might have been over by the time he reached the place of occurrence. Therefore, his statement that Chandoo missed his aim and instead of Sohan his spear blow land on Dal Singh is unbelievable as according to other two eye-witnesses the incipient of the incident was with exchange of abuses from both sides and then the process of marpeet started in the lane itself and thereafter the deceased was dragged into the Bagar where again a beating was given to him. This witness appears to be overzealous in supporting the prose cution case as before the Investigating Officer he had made statement even about that part of the prosecution story when he was present at his house. The delay in his interrogation by the Investigating Officer speaks of the circumstances which go against the prosecution itself. In his case possibility cannot be ruled out that either he was not present in the village on the fateful day or in the beginning he was not ready to support the prosecution case but subsequently when pressure was exerted upon him by the union of the Mill of which he himself also happened to be a member he agreed to stand as a witness for the prosecution out of sympathy to the family of his colleague and to oblige the bureaucrats of union. In the given circumstances, his testimony is not far from suspicion and it is quite unsafe to place an implicit reliance on his statement for sustaining the conviction of the appellants. 14. So far as Ram Kishan (PW 1) and Pitambar (PW 2) are concerned they are none else but cousin Sala, respectively, of the deceased. They being close relatives of the deceased and interested witnesses, their evidence requires a close and cautious scrutiny by the Court. They were in the full of their youth at the time of incident being 30 and 22 years old, res pectively. Firstly, their statement that after receiving minor injuries they retraced behind and stood up a few steps away from the place where Sohan was being beaten is hardly to be believed. They being quite young men were not expected to be a simply spectators to the deadly assault launched on Sohan. Firstly, their statement that after receiving minor injuries they retraced behind and stood up a few steps away from the place where Sohan was being beaten is hardly to be believed. They being quite young men were not expected to be a simply spectators to the deadly assault launched on Sohan. Had they been on the spot, the Court only hopes from them that they also must have joined the melee and tried to save Sohan. Their conduct in watching the incident like a stranger does not appeal to us. A close relation was being butchered and they were neither raising the shouts nor were trying to save the victim nor were persuading the fellow villagers to intervene was, of course, against human conduct. Even a person who was quite unknown to Sohan deceased would not have behaved like that in that situation and would have tried to interference and save the deceased. Had they been on the spot, they must have tried to save Sohan from the assailants and in that event they also would have suffered extensive and serious injuries on their peraon. Absence of such injuries on the bodies reflect a doubt on the prosecution story that both of them were going in the company of the deceased and that they had also sustained injuries during the course of incident. We have already spoken about the nature of their injuries and also how they suffered them and we do not want to encumber our judgment by repeating the same finding over and again. Suffice it to say that they had not received those injuries during the course of incident and for the reasons that we have mentioned earlier and are going to be noticed hereinafter, the presence of Ram Kishan and Pitambar on the spot was highly doubtful or at least not sufficient to sustain the conviction of the appellants. 15. Pitambar (P. W. 2) has stated that various persons had collected on the spot at the time of incident but nobody went inside the Bagar. He further deposed that only Dal Singh alone caused spear injury to the deceased and that no other accused with any weapon inflicted any injury on the person of Sohan. 15. Pitambar (P. W. 2) has stated that various persons had collected on the spot at the time of incident but nobody went inside the Bagar. He further deposed that only Dal Singh alone caused spear injury to the deceased and that no other accused with any weapon inflicted any injury on the person of Sohan. This latter part of his statement runs counter to the prosecution case inasmuch as from the very beginning the prosecution story is that Dal Singh was armed with axe and if it was so, then how Dal Singh came into possession of the spear and caused injury to deceased with the weapon other than what he was carrying at the time of incident. Secondly, if except one spear injury no injuries by other accused were caused then how other 14 injuries were sustained by the deceased because the Doctor who conducted post-mortem examination on the deadbody had mentioned 15 injuries in his report. Again, it is worthwhile to be mentioned that though several persons are said to have collected on the spot but nobody tried to save the deceased nor came forward to support the prosecution case in court. Had many villagers collected on the spot, it is not expected of them not to intervene and save Sohan from the deadly assault launched by the accused. This behaviour of villagers was against human conduct. 16. Pitambar is resident of village Gadanpura, The Cotton Mill in which he was employed at the time of incident lay in between Gandanpura and Manik Mau, where the incident took place and the deceased resides. The distance between the Mill and Manik Mau, according to the witness, is half kilometre. His statement that as usual on 23-10-78 also he left his village at 2. 00 p. m. and reached Manik Mau, at 5. 00 and that from the house Sohan, he and Ram Kishan were going in the company of deceased in order to ease themself and when they reached near the house of Makhan then assault was lunched on them does not inspire confidence. 00 p. m. and reached Manik Mau, at 5. 00 and that from the house Sohan, he and Ram Kishan were going in the company of deceased in order to ease themself and when they reached near the house of Makhan then assault was lunched on them does not inspire confidence. He is an employee of the Cotton Mill, as observed earlier and that Mill falls in bet ween Gadanpura and Manik Mau and we do not think that he was so fool enough that for no purpose he would go to village Manik Mau daily which was half kilometre beyond the place of this duty. Why he traversed one kilometre daily and that too for no purpose is indigestible at all. His pre sence in village on 23-10-78 if further belied by the fact that he was not interrogated by the Investigating Officer on the same day and the FIR of the case was not lodged at the time alleged by the prosecution. 17. As regards Ram Kishan (PW 1), he is none else but real cousin of ths deceased and also an interested person. Though he had dictated the FIR to Hari Prasad Verma but in his statement, which according to him and the Investigating Officer was recorded on 23-10-78 itself, he did not state that the accused persons beat Sohan in the Bagar by spear, Kulhari knives and lathis, when he was confronted with that statement in court he gave out that he had deposed that the accused caused spear, axe, knives and lathi injuries to Sohan but he could not say why the Investigating Officer had omitted that statement while interrogating him under Section 161, Cr. P. C. This omission in the statement of the witness recorded under Section 161, Cr. P. C. speaks for itself that by the time his statement was recorded the FIR was not in existence and next day when the FIR was lodged all that improvement was made therein. Therefore, his statement that he and Raghubir both went to lodge the FIR and in the way they came across with Hari Prasad Varma to whom the FIR was dictated and then sent to police station through Raghubir is not believable. If the FIR was sent through Raghubir as deposed to by the witness, his signature must have been on the chick report. If the FIR was sent through Raghubir as deposed to by the witness, his signature must have been on the chick report. The absence of signature of Raghubir on the chick report further belies the statement of Ram Kishan (PW 1 ). About his injuries we have already observed that they were not sustained by him during the course of incident but were manufactured. Had he been present on the spot with Sohan, there was no reason for his sustaining only minor injuries as being closely related to the deceased he was expected to intervene and save his cousin. He has admitted his enmity with Makhan due to earlier litigation in which he and Raghubir both were fined. Taking all these facts into account we are of the opinion that the presence of Ram Kishan also on the spot is not free from doubt and consequently his testi mony cannot be relied upon to maintain the conviction of the appellants. 18. According to almanac, on 23rd October the sun sets at 5. 20 p. m. light remains not more than 40 minutes later the sun set and thereafter it becomes quite dark. From the contradictions in the statements of the witnesses it appears that the incident took place in the cover of darkness when none of the three eye-witnesses was present on the spot. 19. The learned A. G. A. contended that since there are injured witnesses, therefore, their presence on the spot could not be doubted. We have already discussed in detail about the presence of Ram Kishan and Pitambar and their injuries and, therefore, this argument should not detain us any more. However, for the sake of advantage we may quote here a very relevant observation of the Supreme Court in the case of Ram Kishore v. State U. P. , reported in 1968 CAR 5 (SC), where the Court had disbelieved the testimony of injured witnesses on account of their superficial injuries. Here also as mentioned above Ram Kishan sustained one scabbed abrasion, contusion and a lacerated wound skin deep while Pitambar had only one scabbed abraded traverse swelling on the dorsum of left hand. Their injuries were very minor and simple, which could have easily been manu factured. Here also as mentioned above Ram Kishan sustained one scabbed abrasion, contusion and a lacerated wound skin deep while Pitambar had only one scabbed abraded traverse swelling on the dorsum of left hand. Their injuries were very minor and simple, which could have easily been manu factured. In similar circumstances, as exist here in the present case, the High Court repelled the defence version by observing that looking to the pitiable condition after his son, nephew and cousin had been mercilessly been butchered, it was believable that he would have thought of manufacturing the injuries. The Supreme Court while disagreeing with the High Court observed:- With respect, in our opinion, his pitiable condition would not deter a person like Hoblal for manufacturing injuries if necessary. This suggestion is further fortified by the fact that according to the prosecution he was the first person to be assaulted and it is not believable that the three appellants Shiv Kumar, Maniram,and Shri Ram who are alleged to have attacked Hoblal would such injuries with lathis on him. " 20. Now the question that remained for consideration that how Dal Singh suffered spear injuries. On that point there is counter version of the parties. According to prosecution, Chandoo wielded his spear to cause injury to the deceased but providentially his aim diverted to Dal Singh and it was in that circumstance that Dal Singh sustained spear injuries. However, the defence version is otherwise. According to the accused, Sohan came with a spear. In the beginning some sort of altercation began and during that altercation Sohan gave spear below to Dal Singh. In the meantime Smt. Mukhi, mother-in- law of Dal Singh came on the scene and she tried to save Dal Sing, who also sustained injuries. There is no explanation of the injuries of Smt. Mukhi from the side of prosecution. She had also received as many as six injuries though all simple. In the opinion of the Doctor these injuries could have been received by her during friction except injuries (sic) which could have been caused by some blunt object. There is no explanation of the injuries of Smt. Mukhi from the side of prosecution. She had also received as many as six injuries though all simple. In the opinion of the Doctor these injuries could have been received by her during friction except injuries (sic) which could have been caused by some blunt object. In view of the injuries of Smt. Mukhi for which there is no explanation from the side of the prosecution or any reference in the state ment of the eye-witnesses, the version of defence appears to be more plausible and convincing that Sohan came armed with a spear and gave blows to Dal Singh and when Smt. Mukhi came to save him she was also assaulted. During this period villagers had come and they assaulted Sohan and due to those injuries he died. 21. The learned A. G. A. then contended that if the deceased was aggressor and caused injuries to Dal Singh and his mother-in-law still the accused are liable to be punished as they had exceeded the right of private defence. In a case like the one and hand it is difficult to measure the right of private defence in a golden scale as to why and at what stage which of the parties had exceeded the right of private defence and who was responsible for causing fatal injuries due to which recipient of these injuries died, particularly when the incident, as observed earlier, might have taken place in the cover of darkness. No responsibility on a parti cular accused can, therefore, be fastened in the present case for exceeding the right of private defence. In our opinion, the present is a case where benefit of doubt should be given to the accused as the investigation has been tainted and the statements of the witnesses are not convincing and even their presence at the venue is very much doubtful. 22. Accordingly the appeal succeeds and is hereby allowed. All the appellants are acquitted of the charges levelled against each of them. They are on bail. They need not surrender. Their bail bonds are cancel led and sureties discharged. Appeal allowed. .