KUNDAN SINGH, J. ( 1 ) THIS appeal is directed against the judgement and order dated 6-3-80 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, Simal 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 appellantwas further held guilty under Section 147, I. P. C. and was convicted thereunder 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 information report, was that accused Makhan and Mangal and the informant Ram Kishan (P. W. 1) and Sohan Deceased were residents of village Manik Mau, within police station kotwali Dehat, district Sharanpur. 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 Bau. Sohan deceased, Phulloo and some other residents of the village made a complaint to Makhan about that illicit connection 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 22-10-78 Smt. Kela was sent to her in-laws house. On the fateful day, i. e. 23-10-78, at about 6. 00 P. M. Sohan was going towards is fields in the company of Pitambar and Ram Kishan, Sala and cousin, respectively, of the deceased. When they were passing through a lane infront 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 retorted that if was their own misdeed which was defaming them. When they were passing through a lane infront 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 retorted that if 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 respective 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 knife 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 respective 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 (P. W. 1) along with 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. , 23-10-78. 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. , 23-10-78. ( 3 ) THE investigation of the case was entrusted to Sub Inspector Satish Chandra Sharma, who has been examined as P. W. 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 (P. W. 6) prepared the inquest report and he himself recorded the statement of Ram Kishan (P. W. 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 examination. 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 (P. W. 2), R. D. Singh, Sub Inspector and of other persons and then returned to Saharanpur. There he met Dal Singh in the Hospital on 24-10-78 but he could not arrest him and record his statement as he was lying unconscious. Thereafter. witnesses Amarnath and others were interrogated by him on 26-10-78. However; the statements of Phulloo and others were taken down on 7-12-78. The accused could not be arrested as they surrendered in Court. ( 4 ) DR. Govind Swarup Gupta (P. W. 9) had medically examined Ram Kishan and Pitambar at 2. 50 P. M. and 3. 00 P. M. , respectively, on 24-10-78. 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 tranverse swelling on the dorsum of left hand was found. The autopsy on the dead body of Sohan was conducted by Dr. Ramesh Chaturvedi (P. W. 4) at 4. 30 P. M. on 24-10-78, who found two lacerated wounds, seven contusions, three incised punctured wounds, two incised wounds and two abrasions on his body. After completing remaining formalities the Investigating Officer submittedcharge sheet in Court against the appellants, Makhan and Mangal accused. ( 5 ) THE prosecution examined 9 witnesses in all to prove its case. 30 P. M. on 24-10-78, who found two lacerated wounds, seven contusions, three incised punctured wounds, two incised wounds and two abrasions on his body. After completing remaining formalities the Investigating Officer submittedcharge 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 (P. W. 1), Pitambar (P. W. 2) and Amarnath (P. W. 3) were the witnesses 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 the 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 protested 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 retaliation 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 roped 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 (D. W. 1) and Dr. 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 (D. W. 1) and Dr. J. Pal Chandra (D. W. 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 23-10-78 at 10. 00 p. m. and had found two incised wounds on his left fore-arm whereas Dr. Chandra (D. W. 2) deposed that on medical examination of Smt. Mukhi on 25-10-78 at 5. 00 p. m. he found four abrasions, one abraded 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 any 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 judgement the convicts have now come up to this Honble Court in the above appeal. ( 9 ) WE have heard 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 witness 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. 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 addressing 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 kilo metres. The Investigating Officer had reached the venue at about 9. 00 p. m. on 23-10-78. He got 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 right through three constables Dharmpal Singh, Ved Prakash and Gajraj Singh. From Kotwali Dehat the Police Lines may be a few kilo metres as both situate in the city of Saharanpur. Similarly, from the Police Lines the mortuary also may be at a few kilo metres 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 the dead body is of 1. 45 p. m. the next day, i. e. 24-10-78 whereas receipt of dead body at the mortuary was at 3. 15 p. m. that very day. Thus entries in the records of police lines show that the dead body reached thereafter 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 kilo metres away either from Police Lines or the Mortuary and so late arrival casta doubt on the prosecution case. The only inference that can be drawn from the delay in reaching the dead body 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. The only inference that can be drawn from the delay in reaching the dead body 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 Pitamber, 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 the venue but his statement was not recorded by the Investigating Officer in the night when Ram Kishan was interrogated. Next morning when Pitambar was available his statement had been recorded by the Investigating Officer and then the dead body was sent to Mortuary for postmortem examination and then the ante-timed F. I. R. was lodged at the police station. Further, the F. I. R. as said to have been sent to police station through Raghubir, brother of Ram Kishan informant but the check 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 check 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 24-10-78. Three Constables are said to have carried the dead body of Sohan in the night of 23-10-78 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 dead-body was sent at 11. 00 p. m. in the night of 23-10-78 itself and any of the three Constables who carried the corpse was examined, he could have explained the reason for delay in reaching the dead body in the Police Lines and then in the Mortuary but by withholding their evidence the defence has been deprived of eliciting the truth. 00 p. m. in the night of 23-10-78 itself and any of the three Constables who carried the corpse was examined, he could have explained the reason for delay in reaching the dead body 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 Manik 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 factor 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 dead body to mortuary for reasons more than one but here the situation is quite different. From the very beginning the prosecution case was that the dead body was despatched at 11. 00 p. m. in the night of 23-10-78 itself and we are unable to digest the fact that the Constable 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 11/2 hours had the dead body been sent at 11. 00 p. m. as stated by the Investigating Officer. Here the late arrival of dead body 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 Officer reached the spot and neither Ram Kishan nor Pitambar was present at the scene of occurrence at the time of incident. Here the late arrival of dead body 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 Officer 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 consultations went on and next day the ante timed (sic) reported was handed over to the Investigating Officer in the village and then the dead body was despatched 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 (P. W. 3) was working in the Cotton Mill with Sohan deceased at the time of incident. Since Ram Kishan and Pitambar, who have been examined as P. W. 1 and P. W. 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 P. W. 3 Amarnath, who has tried to prove himself as independent and eye-witness of the incident. ( 13 ) AT the very out-set 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 23-10-78 itself had examined him after four days. The witness has deposed incourt 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 23-10-78 just after 3 hours of the incident. If the F. I. R. was lodged at 8. The site plan, according to the Investigating Officer, was prepared in the night of 23-10-78 just after 3 hours of the incident. If the F. I. R. was lodged at 8. 05 p. m. on 23-10-78 and Amarnath (P. W. 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 S. 161, Cr. P. C. leads only to the conclusion that either he was not present in the village on that day or by the time the Investigating Office left the village on 24-10-78 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 S. 161, Cr. P. C. he has stated the events that took place in the very initium 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 figures 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 nobody went inside the Bagar out of the fear of the accused. 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 nobody 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 arguments 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 late 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. 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 over-zealous in supporting the prosecution 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. This witness appears to be over-zealous in supporting the prosecution 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 (P. W. 1) and Pitamber (P. W. 2) are concerned the are none else but cousin Sala, respectively, of the deceased. They being close relative 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, respectively. 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 humanconduct. Even a person who was quite unknown to Sohan deceased would not have behaved like that in that situation and would have tried to intervene and save the deceased. Even a person who was quite unknown to Sohan deceased would not have behaved like that in that situation and would have tried to intervene 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 person. 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 judgement 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 Pitamber on the spot was highly doubtful or at least not sufficient to sustain the conviction of the appellants. ( 15 ) PITAMBER (P. W. 2) has stated that various persons had collected on the spot at the time of incident but body wept inside the Bagar. He further deposed that only Dal Singh alone caused spear injury to the deceased to 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 in as much as from the very beginning the prosecution story is that Dal Singh was armed with an 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 dead body 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. 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 the villagers was against human conduct. ( 16 ) PITAMBER is resident of village Gadanpura. The Cotton Mill in which he was employed at the time of incident lay in between Gadanpura and Manik Mau, where the incident took place and the deceased resided. The distance between the Mill and Manik Mau, according to the witness, is half kilo metre. His statement that as usual on 23-10-78 also he left hi, 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 case themselves and when they reached near the house of Makhan assault was launched on them does not inspire confidence. He is an employee of Cotton Mill, as observed earlier, and that Mill falls in between 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 kilo metre beyond the place of his duty. Why he traversed one kilo metre daily and that too for no purpose is indigestible at all. His presence in village on 23-10-78 is further belied by the fact that he was not interrogated by the Investigating Officer on the same day and the F. I. R. of the case was not lodged at the time alleged by the prosecution. ( 17 ) AS regards Ram Kishan (P. W. 1), he is none else but real cousin of the deceased and also an interested person. Though he had dictated the FIR to Hari Prasad Varma 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. Though he had dictated the FIR to Hari Prasad Varma 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 Sec. 161 Cr. P. C. This omission in the statement of the witness recorded under Sec. 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. The absence of signature of Raghubir on the chick report further belies the statement of Ram Kishan (P. W. 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 intoaccount we are of the opinion that the presence of Ram Kishan also on the spot is not free from doubt and consequently his testimony 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. Twi-light remains not more than 40 minutes after the sun set and thereafter it becomes quite dark. ( 18 ) ACCORDING to almanac, on 23rd October the sun sets at 5. 20 P. M. Twi-light remains not more than 40 minutes after 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 of U. P. reported in 1968 C. A. R. 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, one scabbed abraded contusion and a lacerated wound skin deep while Pitamber 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 manufactured. In similar circumstances, as exist here in the present case, the High Court repel led the defence version by observing that looking to the pitiable condition after his son, nephew and cousin had been mercilessly butchered, it was not 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 inflict 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. " ( 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 blow to Dal Singh. In the meantime Smt. Mukhi, mother-in-law of Dal Singh came on the scene and she tried to save Dal Singh, 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 and 6 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 statement 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 on 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 those injuries died, particularly when the incident, as observed earlier, might have taken place in the cover of darkness. No responsibility on a particular accused can, therefore, be fastened in the present case for exceeding the right of private defence. No responsibility on a particular 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 cancelled and sureties discharged. Appeal allowed.