G. S. N. TRIPATHI, J. ( 1 ) THE then Sessions Judge, Jaunpur, vide his judgment and order dated 29. 11. 1979, held the accused Kashi Naresh Nanhku Singh guilty on a charge under Section 304 Part II of the I. P. C. and sentenced him to undergo 3 years R. I. He was acquitted to other charges. Co-accused Triveni Singh and Mata Charan were acquitted of all the charges leveled against them. ( 2 ) THE aforesaid judgment was passed by the learned Sessions Judge in S. T. No. 94 of 1979, State v. Mata Charan and two others. ( 3 ) THE prosecution story started on the basis of an F. I. R. Exhibit Ka 1 lodged by Nandu. Singh Narendra Bahadur Singh, P. W. 5. The incident is said to have taken place on 15. 6. 1976 at about 7p. m. The report was lodged on 16. 6. 197 at 0. 30 a. m. The distance of the police station is 5 miles. The accused named are Mata Charan. Triveni Singh and Kashi Naresh Nanihu Singh. The former two, namely, Mata Charan and Triveni Singh have been acquitted as mentioned earlier. The third accused Kashi Naresh Nanhku Singh is the appellant before this court. ( 4 ) IT has been alleged that the accused are Pattidars of the complainant and there is enmity between the two families relating to Sahan, land etc. Mata Charan accused and reared a dog, whereas, the complainants party had been nursing hens, cocks etc. Actually the dog of the accused used to trouble the cocks and hens of the complainant. On 15. 6. 1976 at about 7 p. m. , the dog of Mata Charan attacked the hens of the complainant. Seeing it, Narendra Bahadur Singh, P. W. 1 a nephew of the complainant, was chasing the dog. On this, the accused Mata Charan, Triveni Singh and Kashi Naresh started assaulting Narendra Bahadur Singh. On raising alarm. Banshraj Singh, rushed to rescue of Narendra Bahadur Singh, Triveni Singh, the accused, exhorted the other two accused to murder him. Hearing this exhortation, the complainants brother Mahendra Pratap Singh, uncle Suraj Bansh Singh and villager Talukdar Singh, apart from others, reached the spot. There they saw that Mata Charan had caught hold of the deceased Banshraj Singh. Accused Kashi Naresh caught hold of the scrotem of Banshraj Singh and was hanging with the same. Hearing this exhortation, the complainants brother Mahendra Pratap Singh, uncle Suraj Bansh Singh and villager Talukdar Singh, apart from others, reached the spot. There they saw that Mata Charan had caught hold of the deceased Banshraj Singh. Accused Kashi Naresh caught hold of the scrotem of Banshraj Singh and was hanging with the same. Banshraj Singh fell down and died. Thereafter, the accused retreated. ( 5 ) ON the basis of the written report, the chik and G. D. were prepared at the police station by H. C. Ram Awadh Singh and the case was registered in the G. D. (Exhibit ka 10 and Exhibit ka 11 ). ( 6 ) THE 1. 0. Sri-B. K. Singh took the investigation in his hands. He recorded the statements of Nandu Singh Narendra Bahadur Singh and witness Suraj Bhan Singh at the police station. He reached the spot in the same night and prepared the Panchayatnama and other relevant documents and sent the dead-body for post-mortem examination. ( 7 ) THE post-mortem examination was conducted by Dr. Udai Singh on 17. 6. 1976. He found that the deceased was about 60 years old. There was minor abrasions on the face as noted in the judgment of the learned Sessions Judge, but no injury on the scrotum. Fat had accumulated around the heart and the size of the heart had enlarged. It was about 350 gms. on that date. The cause of death could not be ascertained. No other external injury was detected by him. ( 8 ) BEFORE submitting the charge sheet, another 1. 0. Kailash Nath Upadyaya, P. W. 7 obtained an additional report of Dr. H. K. Verma: P. W. 8 (Exhibit Ka 12) that the death could be possible by exerting pressure on the scrotum without there being any visible injuries which could be seen by nacked eyes. ( 9 ) THE prosecution examined P. W. 1 Narendra Bahadur Singh. He is the person who was in the origin of the marpit. He has deposed that parties belong to the same family and are distantly related. Further, he says that there used to remain family enmity between the parties. Then he repeats the story of dogs and hens. While chasing the dog of the accused, by P. W. 1, the accused assaulted him. He has deposed that parties belong to the same family and are distantly related. Further, he says that there used to remain family enmity between the parties. Then he repeats the story of dogs and hens. While chasing the dog of the accused, by P. W. 1, the accused assaulted him. He raised an alarm and thereafter he repeats the story as contained in the F. I. R. ( 10 ) P. W. 3, Talukdar Singh is the Mausaira Bhai (Cousin-brother of the deceased ). He also reached the spot after hearing the alarm and saw the incident. The learned Sessions Judge has preferred to ignore his evidence. ( 11 ) P. W. 4, Surajbans Singh is the brother of the deceased Bans Raj Singh. After hearing the alarm, he also reached there and saw the incident with his own eyes. ( 12 ) P. W. 5, Narendm Bahadur Singh Nandu Singh is the son of Banshraj Singh. He is the author of the F. I. R. He has also given an eye witness account of the incident. ( 13 ) OTHER evidence is formal in nature. ( 14 ) P. W. 3 Dr. Udai Singh conducted the post-mortem examination of the deceased and found no sign of any pressure on the scrotum of the deceased. ( 15 ) P. W. 8, Dr. H. K. Verma has given an additional opinion regarding the death, which could be possible by pressure on scrotum. ( 16 ) P. W. 6, Sri B. K. Singh has proved the entries in the chik and G. D. made by H. C. Ram Awadh Prasad. He also proved the documents prepared during the course of investigation. ( 17 ) P. W. 7 Sri Kailash Nath is another 1. 0. He has simply charge sheeted the accused after obtaining the report from Dr. H. K. Verma. ( 18 ) THE accused in their statement have denied the allegations against them. They have said that on account of enmity, they have been falsely implicated. The accused have led no evidence in their defence. ( 19 ) AFTER appraisal of the entire evidence and circumstances on the record, the learned Sessions Judge recorded a finding of guilt against the accused-appellant Kashi Naresh only. Whereas, he extended benefit of doubt to other co-accused. They have said that on account of enmity, they have been falsely implicated. The accused have led no evidence in their defence. ( 19 ) AFTER appraisal of the entire evidence and circumstances on the record, the learned Sessions Judge recorded a finding of guilt against the accused-appellant Kashi Naresh only. Whereas, he extended benefit of doubt to other co-accused. He further converted the charge from that of 302 I. P. C. to 304 Part II of the IPC against the accused appellant aforesaid and sentenced him as noted above. ( 20 ) PEELING aggrieved, the accused has come to this court and filed this appeal. ( 21 ) I have heard the learned counsel for the parties at a great stretch and perused the record. I find that there is much force in this appeal and it deserves to be allowed. ( 22 ) THE first thing to be seen in this case is that there is absolutely no evidence as regards the medical opinion, regarding the cause of death of Banshraj Singh, which could be noticed for reaching a conclusion that it was a homicidal death. Rather the evidence shows that Banshraj Singh died on account of his enlarged heart and accumulation of excess fat around the same. A clue to that effect is found in the statement of Dr. Udai Singh, P. W. 2. He is the person who conducted the postmortem examination and detected the serious condition of his heart. Another speciality in his evidence is that he had not found any injury or any mark of injury even around the scrotum of the deceased. The statement of Dr. Verma is purely academic and imaginary. It is possible that if pressure is exerted upon the scrotum, death may be caused. But it is difficult to believe that no mark of any pressure will be visible on the scrotum, which is decidedly a very delicate part of the body. When the attention of Dr. Udai Singh was invited to this point, he admitted that exertion of pressure upon the scrotum could result in death. But some marks would certainly be visible upon the tissues of the scrotum and if such mark is not visible, the death is not possible. The meaning of this sentence is that absence of any marks upon the scrotum indicates that adequate pressure was not exerted thereupon, which could result in death. But some marks would certainly be visible upon the tissues of the scrotum and if such mark is not visible, the death is not possible. The meaning of this sentence is that absence of any marks upon the scrotum indicates that adequate pressure was not exerted thereupon, which could result in death. Therefore, the statement of Dr. Verma does not contradict the statement of Dr. Udai Singh. So the prosecution case as regards the medical evidence is totally shrouded in a mystery, as to the cause of death of the deceased as a result of pressure exerted by the accused upon that vital part of the organ. The learned Sessions Judge has also admitted this fact in his judgment that there was no preplanning for this marpit or murder. There is further indication of this fact in the site plan. The houses of the parties are quite close to the place of occurrence. When the witness P. W. 1 was chasing the dog of the accused, the accused saw it. Allegedly they arrived there for creating some scene of marpit. But strangely enough, they all went there bare-handed. It is further said that they assaulted Narendra Bahadur Singh. But not even a scratch was caused to him. In fact, he was the author of the entire marpit story. Had he not chased the dog, the incident would not have taken place. He was the first person to come in grips of the accused out no assault was made upon him, although he claims to have received kicks and fists. But in absence of any medical evidence, no definite opinion could be given regarding the fact that he had received injuries at all. Not only this, no effort was made to obtain medical opinion regarding his injuries. So on this point also, the prosecution case becomes shakey. It appears that the first person to arrive on the spot had received no injuries at all. ( 23 ) ONCE it is held that Narendra Bahadur Singh had received no injuries, it is difficult to believe that he would have raised an alarm and the arrival of the witnesses and Bansraj Singh becomes doubtful. It appears that the first person to arrive on the spot had received no injuries at all. ( 23 ) ONCE it is held that Narendra Bahadur Singh had received no injuries, it is difficult to believe that he would have raised an alarm and the arrival of the witnesses and Bansraj Singh becomes doubtful. Taking the worst case, it appears that the deceased arrived on the spot after seeing that Narendra Bahadur Singh was in the grips of the accused, and he fell down on account of his heart ailment, as a result of which, he received minor injuries on his face and died on account of that. The fact that a person of such a heart condition could die suddenly cannot be doubted. Moreover, the injuries received by him on the face were certainly not directly responsible for his death not that could be as per the opinion of Dr. Udai Singh responsible for his death. In the cross- examination even, Dr. H. K. Verma, P. W. 8 has admitted that all the organs of a diabetic patient are affected. He suffered from hyper-tension as well; and heart failure could be possible at any time. So it seems that this ailing person, namely Banshraj Singh, met his death on account or heart failure and certainly not on account of the pressure exerted upon his scrotum, as alleged by the prosecution. ( 24 ) ONCE it is proved that Narendra Bahadur Singh P. W. 1 is not telling the truth regarding the genesis of the marpit as well as regarding the theory of pressure upon the scrotum, of Bansraj Singh, the entire prosecution story becomes shakey and unreliable. I have definitely found that Narendra Bahadur Singh had no injury and he did not cry. Admittedly, there was enmity between the parties. This is a case of the prosecution from the very beginning. Even the accused did not deny it. So the prosecution wanted to make a capital out of a sudden death of Banshraj Singh, as a result of his heart failure. This fact cannot be seriously denied that there might have been exchange of hot and filthy words between the parties. But that cannot be the real cause for the death of the deceased. So the prosecution wanted to make a capital out of a sudden death of Banshraj Singh, as a result of his heart failure. This fact cannot be seriously denied that there might have been exchange of hot and filthy words between the parties. But that cannot be the real cause for the death of the deceased. ( 25 ) ANOTHER important fact of this case is that before going to the police station and lodging the report, the deceased had been taken to some Doctor, who pronounced him dead. This fact is admitted by the witnesses, but not mentioned in the F. I. R. why this fact is not mentioned, tells a lot of untold story. That shows that the time gap was sought to be filled and this is an important piece of evidence, otherwise, when the incident took place at 7 p. m. , the F. I. R. could have been lodged by 8 p. m. in the same night. But it has not been done so. So, it appears that the complainant party was trying to collect evidence and construct a case with the help of better brains. There is a further clue to this fact available in the F. I. R. itself that the F. I. R. was lodged after a considerable delay and it was ante-timed. No doubt, according to English calendar the dates change, after 12 mid night. But in India, normally village people do not say as 0. 30 in the morning. It is always said that was night. But in the F. I. R. , the words are Kal (yesterday) Dinank 15. 6. 1976 KO TIt means that the F. I. R. was lodged not in the same night, but later on in the morning of 16. 6. 1976. That is why the word Kal (yesterday) has been used in the F. I. R. ( 26 ) THE 1. 0. states that he reached the spot in the same night and it is clear that the F. I. R. was lodged after the arrival of the 1. 0. on the spot and naturally with his legal opinion and brain, a new story was cooked up. It was given a legal shape. Such an F. I. R. cannot be a basis of conviction in this case. It makes the entire story of the prosecution unreliable and doubtful. 0. on the spot and naturally with his legal opinion and brain, a new story was cooked up. It was given a legal shape. Such an F. I. R. cannot be a basis of conviction in this case. It makes the entire story of the prosecution unreliable and doubtful. ( 27 ) UNFORTUNATELY, the learned Sessions Judge has not delved deep into the matter and has tried to support these major defects in the prosecution story with flimsy intellectual exercise. That was most unfortunate aspect of this case. ( 28 ) THE incident took place, at a place where, admittedly, several persons of the village, including independent ones, had arrived. But they were intentionally given up and only relation and interested witnesses were produced. This is not a case where independent witnesses had not arrived, nor it is not a bed room incident where the husband and wife alone could be witnesses. It is an incident of an open place. But the witnesses chosen are members of the family of the deceased or those who are closely related to him. For instance, P. W. 1 Narendra Bahadur Singh belongs to the family of the deceased, P. W. 2 Talukdar Singh is the Mausera brother of the deceased, P. W. 4 Surajbans Singh is the real brother of the deceased and P. W. 5 Narendra Bahadur Singh Nandu Singh is the real son of the deceased, Why independent witnesses were intentionally not produced, is not explained by the prosecution at all. So, normally the only inference which could be drawn in this case is that the independent witnesses were not prepared to tell the false story. ( 29 ) IN this background; when we analyse the evidence of the interested and relation witnesses, I find that there is a lot of mixing of fact with fiction and it becomes difficult to separate grain from the chaff. ( 30 ) P. W. 1 Narendra Bahadur Singh in the cross-examination gives the details of his injuries. But he cannot say as to how many kicks and fists be received. He did not gala a Doctor for medical examination, because he says his injuries were not visible. At page 5, he says that he could not see as to when the scrotum of the deceased was caught hold by the accused. But he cannot say as to how many kicks and fists be received. He did not gala a Doctor for medical examination, because he says his injuries were not visible. At page 5, he says that he could not see as to when the scrotum of the deceased was caught hold by the accused. In the F. I. R. the words are that the accused Kashi Naresh hanged himself by catching hold of the scrotum of the deceased. It could be possible only in two ways. Firstly, the deceased was on a higher ground. Then only the accused could have caught hold of the same and hanged himself with the same or the accused sat down calmly catching hold of the scrotum and hanged himself. But either of these two postures has not been explained in the cross-examination of the witnesses. Rather efforts have been made to mix-up hanging and catching as meaning the same. The learned Sessions Judge has also fallen into the trap, by interpreting the words hanging and catching as meaning the same. Where as, they arc totally different in meanings. Any narration of the incident, as made by the P. W. 1, Narendra Bahadur Singh, cannot be accepted. ( 31 ) P. W. 3, Talukdar Singh has admilted that by the time he reached, about 4-10 persons arrived. He saw the members of the family lifting Banshraj Singh from the spot. So he could not be a witness of the actual happening of the incident. Moreover, the learned Sessions Judge has also ignored his testimony. ( 32 ) P. W. 4, Surajbans Singh is the real brother M the deceased. He admits that his one eye had been damaged since 1973. He was the last person running towards the spot at a distance ofl6 paces. The incident took place hardly within a minute or so. So he too could not see the actual act done by the accused appellant against the deceased. Regarding the scribing of the F. I. R. , his story is not believable. He says that the report was scribed at 8 p. m. Then the question of writing that incident took place yesterday (kal), could not arise. From this very sentence, it appears that the witness is not telling the truth. ( 33 ) NARENDRA Bahadur Singh Nandu Singh, P. W. 5 says that the accused started assaulting P. W. 1. He says that the report was scribed at 8 p. m. Then the question of writing that incident took place yesterday (kal), could not arise. From this very sentence, it appears that the witness is not telling the truth. ( 33 ) NARENDRA Bahadur Singh Nandu Singh, P. W. 5 says that the accused started assaulting P. W. 1. But not even a single scratch was found on his body, as seen earlier. He evolves a new theory that Kashi Naresh the accused appellant caught hold of the scrotum of the deceased and started snatching it. This is a new development in the prosecution story. This way, every witness has his own story to tell and individual stories differ from each other. Hence no consistent version could be available to the court. ( 34 ) IN presence of such a shakey evidence of the prosecution, the order of conviction could not be recorded and benefit of doubt should have been extended to this accused appellant also. That was not done by the trial court. That is most unfortunate aspect of this case. ( 35 ) THUS after perusal of the entire evidence and circumstances on the record. I find that the prosecution has miserably failed to prove its case against the accused appellant. He deserves to be acquitted. ( 36 ) THE appeal is allowed. The judgment and order passed by the learned lower court are set aside. The order of conviction and sentence is accordingly, set aside. The accused is held to be innocent and is acquitted. ( 37 ) THE accused is in Jail. He shall be released forthwith unless wanted in some other case. Appeal allowed. Conviction set aside. .