N. L. GANGULY, J. ( 1 ) THESE two connected criminal appeals arise out of the judgement and order dated 27-10-1980 in Sessions Trial No. 290 of 1978 passed by Sri C. L. Anand, I Addl. Sessions Judge, Muinpuri convicting appellants Prabhu Dayal, Chhotey Lal and Ram Kishan alias Lala Ram under Section 302 read with Section 34 I. P. C. and sentencing each of them to undergo R. I. for life. ( 2 ) A written first information report of the incident was submitted at the police station by Bachchan Lal, husband of the deceased Smt. Margshri. It was said in the F. I. R. dated 21-10-1988 that there was a proceeding under Section 145 Cr. P. C. in respect of Chak No. 534 situate in village Bhogaon in between Margshri deceased and Prabhu Dayal, and Jawahar, residents of village Nagla. Itwas said in the F. I. R. that the 145 Cr. P. C. case was decided in favour of deceased Margshri. On the date of the incident i. e. 21-10-1977 at 11. 45 a. m. under the orders of the S. D. M. Bhogaon the police of Bhogaon police station went to the village to deliver possession of the land to Smt. Margshri. When they were returning police had come ahead and Margshri was following them from some distance. When she reached the out-skirts of Mohalla Mohabbatpur, Bhogaon near Jamuna Sati Marghat near mango tree of Girish, Prabhu Dayal s/o Chunni Ram, Kishan s/o Dambar and Chhotey Lal s/o Manohar Lal, residents of Bhogaon emerged out of the Bajra field and said how the police gives possession and the accused persons started assaulting her by sickles, Margshri, informant Bachchan Lal and witnesses Ram Lal, Mir Tafazzul Husain and Harnandan alias Chhotey raised alarm, The police officials also raised alarm and challenged and followed the accused persons but they could not be apprehended. Accused Chhotey Lal while escaping left his sickle at the place which the police took in possession. The Sub Inspector took the injured Margshri to the hospital. The incident had taken place at 11. 45 a. m. and the written report was lodged at 12. 45 p. m. the same day. ( 3 ) AFTER framing of the charge the learned Sessions Judge recorded the statement of Dr. S. S. Agrawal PW-1. On 9-6-79 PW-2 Bachchan Lal was examined. The incident had taken place at 11. 45 a. m. and the written report was lodged at 12. 45 p. m. the same day. ( 3 ) AFTER framing of the charge the learned Sessions Judge recorded the statement of Dr. S. S. Agrawal PW-1. On 9-6-79 PW-2 Bachchan Lal was examined. It transpires from the statement of Bachchan Lal that another person; namely, Ram Kishan alias Lala Ram S/o Dambar Kachhi was also involved in the offence. The Sessions Judge found that the allegations against accused Prabhu Dayal, Chhotey Lal and Ram Kishan alias Lala Ram were almost the same. He exercising the powers u/s. 319 Cr. P. C. issued non-bailable warrant against Ram Kishan alias Lala Ram. The case proceeded after Ram Kishan was brought before the Court after warrant. ( 4 ) THE charge under Section 302/34 I. P. C. was framed against all the accused-appellants. All the three accused persons denied to have committed the offence. In the statement of accused Prabhu Dayal it is said that the proceedings u/s. 145 Cr. P. C. was taken. However, he did not confirm or deny about the success in that proceedings in favour of Margshri. Chhotey Lal and Ram Kishan expressed ignorance about 145 Cr. P. C. proceedings. The accused persons pleaded that they have been falsely implicated in the case due to party factions and enmity. ( 5 ) THE prosecution in support of its case examined PW-2 Bachchan Lal, PW-3 Mir Tafazzul Husain and PW-4 S. S. Tripathi S. I. as witnesses of fact. Dr. S. S. Agarwal PW-1 who conducted the Post mortem examination of the deceased Margshri on 22-10-1977 was examined. Lalman Verma PW-5 was posted as S. I. at P. S. Bhogaon. He made inquest report, which has been proved and marked as Ext. Ka. 13. He had prepared the challan and diagram of the dead body. He had also-scribed the letter to the Chief Medical Officer. The said diagram, map and letter all exhibited. Sri Ram Charan Singh PW-6 was posted as clerk constable at the police station on 21-10-1977. He had prepared formal first information report. On the basis of the written report he registered the case in the general diary at serial No. 16. A copy of the same was proved and marked as Ext. Ka. 18. Sri Ram Charan Singh PW-6 was posted as clerk constable at the police station on 21-10-1977. He had prepared formal first information report. On the basis of the written report he registered the case in the general diary at serial No. 16. A copy of the same was proved and marked as Ext. Ka. 18. Constable Virendra Kumar Singh PW-7 was entrusted to carry the dead body of Margshri to the mortuary. He had also carried the sealed clothes of the deceased to the police station with post mortem report. Sri Mahesh Singh Sengar PW-8 was examined, who had investigated the case. The case was registered in his presence at the police station. He had entrusted S. I. Sri Lalman Verma to prepare the inquest report. He had gone to the hospital and interrogated the Sub Inspector Sri S. S. Tripathi on the same day. He had inspected the place of occurrence, prepared the site plan of the place of occurrence and collected blood stained and ordinary earth therefrom and proved the memos prepared by him. He interrogated the P. Ws. on the first day and also interrogated Sri Tazammul Husain after several days. The learned Sessions Judge after appreciating the evidence of the eye witnesses and medical evidence adduced by the prosecution believed the version of the prosecution and convicted and sentenced the accused persons as stated above. ( 6 ) SRI P. N. Misra, learned Senior Advocate, appeared on behalf of the appellants. He placed the evidence on record the site plan, post mortem report etc. in detail and submitted that the prosecution case is highly doubtful and the Court below has erroneously arrived at a wrong conclusion. Sri P. N. Misra from the evidence of eye witnesses, namely, PW-2 Bachchan Lal, PW-3 Mir Tazammul Husain and P. S4 S. I. S. S. Tripathi submitted that the place of incident where the deceased Margshri was assaulted is not in dispute, which is said to be at place a shown in the site plan. He submitted that from the evidence on record it is abundantly clear that at the time when Margshri was assaulted and alarm was raised by her the eye witnesses Sri S. S. Tripathi PW4 Mir Tazammul Husain PW-3 and Bachchan Lal PW-2 were at a long distance and it was not possible for them to have seen and identified the assailants of the victim. He drew the attention of the Court to thestatement of PW-4 S. S. Tripathi, who had stated under Section 161 Cr. P. C. that he and Kunwar Pal Singh had gone 400 yards ahead of the tree of mango of Girish when he heard the shrieks of the victim. The witness Sri S. S. Tripathi, when appeared in Court, had changed his version and stated that when they were returning from the village he was going first ahead followed by constable Kunwar Pal Singh and behind the police officials witnesses and Margshri were following. This witness tried to improve and develop the case of the prosecution and attempted to conceal and avoid stating the distance between him and the deceased Margshri when the accused emerged out of the Bajra field. The learned counsel for the appellants drew the attention of the Court to the statement of PW-2 Bachchan Lal also. Bachchan Lal in his statement in Court stated that Sri S. S. Tripathi and the constables were 20 paces ahead. He stated to be 20 paces ahead of Margshri deceased at the time of the incident. The learned counsel for the appellants placed the evidence of PW-3 Mir Tazammul Husain. The I. O. had interrogated him after one month of the incident, Mir Tazammul Husain in para 20 of his statement stated that the Investigating Officer had interrogated him when he was going somewhere. Mir Tazammul Husain stated in his statement that at the time of the incident he was 20-25 paces back to the S. I. S. S. Tripathi. He also stated that he saw the accused persons coming out of the Bajra field, which was about half a furlong away from the place from where he saw them coming out. The learned counsel for the appellants submitted that the eye witnesses are inconsistent and PW-4 S. S. Tripathi contradicted his statement u/s. 161 Cr. P. C. and attempted to conceal the correct facts before the Court. It is also argued that if the distance is 400 yards or half a furlong, as stated by Mir Tazammul Husain PW-3, it is not possible to identify and state about the assailants even in the day light. ( 7 ) SRI P. N. Misra brought to the notice of the Court the Commentary criminal Investigation by Dr. Hans Gross and referred to para 10, quoted as under :10. ( 7 ) SRI P. N. Misra brought to the notice of the Court the Commentary criminal Investigation by Dr. Hans Gross and referred to para 10, quoted as under :10. It is appropriate here to call attention to what has been said about the distance at which we can recognise persons. Presuming the eyesight to be normal and the light good, one is able in broad daylight to recognise : (a) Persons whom one knows very well, at a distance of from fifty to ninety yards, when there are particular and very characteristic signs, 110 yards in exceptional cases up to 165 yards. (b) Persons one does not know very well and has not so often seen, from twenty-eight to thirty-three yards. (c) People one has only seen once, from sixteen yards by moonlight one can recognise, when the moon is at the quarter, persons at a distance of from twenty one feet, in bright moonlight at from twenty-three to thirty three feet; and at the very brightest period of full moon, at a distance of from thirty-three to thirty six feet. In tropical countries the distances for moonlight may be increased. " ( 8 ) SRI P. N. Misra also referred to the decision reported in 1987 All Cri R 217, Maheshwari v. State of U. P. and the Division Bench had referred to the authority on criminal Investigation by Dr. Hans Gross to show that the authority has been considered to be standard by the Supreme Court also. According to the aforesaid authority the learned counsel submitted that it was not possible for the witnesses to have seen and identified the assailants from such a distance. 8a. The learned counsel for the appellants submitted that the eye witnesses examined in the case are wholly unreliable. The independent witnesses admittedly were available and present at the time of the incident but those witnesses had not been examined in the case. The learned counsel for the appellants submitted that PWs 2 and 3 Bachchan Lal and Mir Tazammul Husain are wholly unreliable and partisan witnesses who had bad Criminal history with them. He also commented that PW-4 S. S. Tripathi S. I. who had gone to the village to deliver possession of the land to Margshri appears to be not a reliable witness. Sri P. N. Misra also submitted that the police personnel and witnesses were there. He also commented that PW-4 S. S. Tripathi S. I. who had gone to the village to deliver possession of the land to Margshri appears to be not a reliable witness. Sri P. N. Misra also submitted that the police personnel and witnesses were there. If the prosecution case is correct, there was no difficulty in apprehending any of the accused persons at the spot. The S. I. S. S. Tripathi had gone to deliver possession of land to Smt. Margshri. It is general practice that whenever a S. I. proceeds, he makes his departure entry at the police station specially for arms and ammunition taken by them. In the prosecution case there is a complete violation and the particulars of the case for which S. S. Tripathi S. I. had gone to deliver possession were also wrongly mentioned in G. D. It is also stated by S. S. Tripathi S. l. that he had no revolver with him at that time. ( 9 ) SRI P. N. Misra submitted that the post mortem stainning were present which also raises a reasonable doubt about the prosecution case. He also submitted that the occurrence took place at 11. 45 a. m. and the small intestine contained half fecal matter and large intestine was full with fecal matter. He submitted, that normally in villages people attend to the natures call in the morning. No person to could generally go out for doing something at a distant place without easing and attending to natures calls. Sri P. N. Misra also submitted that the prosecution case as set up, is also peculiar and unbelievable as soon after the incident the alleged husband of the deceased Bachchan Lal PW-2 went to lodge the report at the police station and the injured victim Smt. Margshri was taken to the hospital by S. S. Tripathi, S. I. PW-4, before going to the hospital and carrying the victim, who according to the S. I. S. S. Tripathi was seriously injured, S. I. Tripathi stated that he had taken in possession a sickle left by Chhotey Lal accused on the spot and sealed the sickle on the spot and had prepared the specimen seal also. The manner in which the witness states to have taken possession of sickle prepared - the memo, sealed - the sickle recovered, appears to be wholly unbelievable. The manner in which the witness states to have taken possession of sickle prepared - the memo, sealed - the sickle recovered, appears to be wholly unbelievable. When the S. I. himself states that the condition of the victim was serious and he had to take the victim to the hospital, no normal person could prepare inventory of the recovery of the sickle, make a specific seal and then proceed with the victim bleeding profusely to the hospital. It is also not known when S. I. S. S. Tripathi, as he has said, had gone to deliver the possession of the land, what was the necessity for him to carry the material for preparing recovery memo and seal etc. This leads to nothing but falsity and unreliability of the witness S. I. S. S. Tripathi PW-4. The prosecution has not clearly stated or adduced any evidence to show that the victim was taken to the hospital for first-aid, her injuries were examined and any treatment was given. No injury report or any entry at the hospital showing that the victim injured Smt. Margshri was ever taken to the hospital by S. I. S. S. Tripathi. It is stated by S. S. Tripathi that she died in the hospital but for Want of evidence to show that she had died in the hospital, any entry was made in the hospital register or any treatment or aid was given to her before her death supports the arguments of the learned counsel for the appellants Sri P. N. Misra. The stains on the body of the deceased are suggestive of the fact chat the victim was assaulted and had died at the place where the dead body was recovered and the story developed about seeing of the incident by the witnesses as disclosed in the evidence, appears to be doubtful. PW-4 S. S. Tripathi S. I. in his statement stated that on 21-10-1977 he had proceeded to the village for delivery of possession of the land to Smt. Margshri in pursuance of the order dated 28-9-1977. The land was given in the custody of Superdar Sri Bishan Dayal. He had not given any notice or information to the Superdar that the police would go to deliver possession to the successful party Smt. Margshri. The land was given in the custody of Superdar Sri Bishan Dayal. He had not given any notice or information to the Superdar that the police would go to deliver possession to the successful party Smt. Margshri. It is said that when the S. I. , the constable and Smt. Margshri had gone to take possession the Superdar was not available and possessing the land could not be delivered. Thus the story of going to the village to get the possession of the land delivered and the accused persons waiting and attempting to conceal in the Bajra field and then assaulting the deceased, does not find corroboration from the record. Sri S. S. Tripathi PW-4 had to admit in his cross examination that in the general diary entry he had not mentioned the name of Margshri. He stated that it was wrongly stated as Ram Charan is place of Prabhu Dayal. The evidence of PW-4 S. S. Tripathi thus in not above-board and cannot be relied upon. ( 10 ) SRI P. N. Misra placed the evidence of PW-2 Bachchan Lal, who stated that Margshri was his wife. Hs admitted that Margshri was married to Itwari. There had beep a case for separation between them. He denied to have any knowledge about the decision of the said case and showed his ignorance about that case. However, he stated that Margshri was separately living for 12-13 years away from Itwari. Bachchan Lal is said to have developed relations with Margshri since 1967 and married her after 1975 after the death of his wife. The witness admitted that Margshri was an accused in a case under Section 307 I. P. C. but could not say whether she was sentenced to five years R. I. Margshri deceased had six sisters and one sister of her was married to Prabhu Dayal accused. He could not give the exact name of the sister, who was married to Prabhu-Dayal. Margshri had obtained the property from her mother and she was the owner of the property. Margshri is said to have executed a will in favour of the daughter of witness Bachchan Lal. Bachchan Lal admitted to have been an accused in a case of dacoity. He remained in jail. Bachchan Lal admitted to have been an accused in a case between him and Prabhu Dayal under Section 107/117 Cr. Margshri is said to have executed a will in favour of the daughter of witness Bachchan Lal. Bachchan Lal admitted to have been an accused in a case of dacoity. He remained in jail. Bachchan Lal admitted to have been an accused in a case between him and Prabhu Dayal under Section 107/117 Cr. P. C. He admitted himself to be a clerk of an advocate and was working as such for 12-14 years. The distance of the S. I. who was going ahead and Margshri was said to be 40-50 paces. This witness is inimical to accused Prabhu Dayal and he cannot be relied upon unless his evidence is duly corroborated. ( 11 ) THE other witness Mir Tazammul Husain PW-3 was 90 years of age when he appeared in the witness box. At the time of incident he was of 87 years at least. This witness in his examination-in-chief stated the facts, as stated by PW-2 Bachchan Lal,but had to admit in his cross examination that he was unable to move and walk. He stated that for 5-6 months his condition was not good. He appeared as a witness sitting and could not depose while standing. He admitted that he is hard of hearing and also weak in eye sight but had volunteered that weak eye sight does not mean that he was unable to see and identify the faces. He had to admit that he was convicted and sentenced to three years R. I. but stated that he was acquitted from the High Court. He had to admit that he was an accused in a case under Sections 107/117 Cr. P. C. also. ( 12 ) THE perusal of the F. I. R. clearly shows that besides the eye witnesses examined in the case, namely, Bachchan Lal PW-2, Mir Tazammul Husain PW-3 and S. S. Tripathi S. I. PW-4, other witnesses namely Ram Lal and Harnandan alias Chhotey had also arrived at the place of incident and heard the call and shrieks. Independent witnesses have not come to support the prosecution case. Witnesses Bachchan Lal and Mir Tazammul Husain cannot be said to be independent witnesses rather they are inimical to the accused Prabhu Dayal. ( 13 ) THE case was investigated by the I. O. Sri Mahesh Kumar Singh Sengar, who proved the statements under Section 161 Cr. Independent witnesses have not come to support the prosecution case. Witnesses Bachchan Lal and Mir Tazammul Husain cannot be said to be independent witnesses rather they are inimical to the accused Prabhu Dayal. ( 13 ) THE case was investigated by the I. O. Sri Mahesh Kumar Singh Sengar, who proved the statements under Section 161 Cr. P. C. of PW-4 S. S. Tripathi and PW-3 Mir Tazammul Husain, which have been marked as Ext. Kha. 1, Kha. 2 and Kha. 3 The I. O. had to admit in his statement that there is no entry of the sickle recovered by S. S. Tripathi S. I. He could not definitely say whether the sickle was with him or had remained with S. S. Tripathi. ( 14 ) SRI P. N. Misra also referred to the statement of Dr. S. S. Agarwal PW-1. He stated that injuries No. 1 to 5 could be caused by sickle. He opined that a curved weapon such as syncyehian sickle, just produces stab of punctured and incised wound. The witness admitted that there was post mortem staining on the body of the deceased. The learned counsel for the appellants submitted that the post mortem staining on the body could appear only if the dead body is left after injuries for hours unattended to. His argument appears to be plausible and acceptable. ( 15 ) THUS on over-all appreciation of the evidence of prosecution, which we have appreciated ourselves carefully we are of the opinion that the prosecution has not produced independent and reliable witnesses. The witnesses examined in the case are inimical and have contradicted each other in material particulars. The previous antecedents of Bachchan Lal PW-2 and Mir Tazammul Husain also suggest that they are not independent and reliable witnesses. Mir Tazammul Husain is an old man of 90 years when he appeared as a witness. It is not understandable as to why the police took him to witness the delivery of possession of the land instance when the witness was so weak and aged that he could not stand to depose in Court. He himself admitted to be hard of hearing but he said that he heard the alarm raised at the time of the incident and had seen the assailants causing injuries to the victim. The conduct of the police Sub Inspector S. S. Tripathi PW-4 is also not above-board. He himself admitted to be hard of hearing but he said that he heard the alarm raised at the time of the incident and had seen the assailants causing injuries to the victim. The conduct of the police Sub Inspector S. S. Tripathi PW-4 is also not above-board. He is an S. I. of police, who proceeded to deliver the possession of the land without making correct entry in the general diary. It is not believable that a police official would go without arming himself with a pistol or revolver and it is also not believable that the police party would not be able to apprehend or even shoot at the fleeing accused if they were at all present at the scene of occurrence. The presence of faecal matter in the large intestine also suggests that the prosecution version, as brought before the Court is not above board. However, this observation is not to be taken as one of the sole ground for giving benefit to the accused persons. In this case the defence has not put a single question to Bachchan Lal PW-2 as to when the deceased had taken her last meals or what was her natural habit for attending to natures call. However, the normal behaviour of village people shows that generally people go in the early morning for attending natures calls and thus it was not expected that the deceased would go at 11. 45 A. M. without easing herself at that hour. ( 16 ) SRI K. C. Saxena drew the attention of the Court to a decision reported in, AIR 1981 SC 82 , and also a decision reported in AIR 1978 SC 1571 , State of Kerala v. M. M. Mathew and AIR 1985 SC 1092 , State of Gujarat v. Raghunath. He also submitted that in a broad day light murder the witnesses can very easily see the assailants from some distance. He also submitted that the testimony of S. S. Tripathi is not to be rejected because he belongs to a police force. He also submitted that in a broad day light murder the witnesses can very easily see the assailants from some distance. He also submitted that the testimony of S. S. Tripathi is not to be rejected because he belongs to a police force. The argument of the learned A. G. A. , so far as the legal proposition is concerned, is not disputed but from the facts and circumstances and evidence on record the Court has no option but to disbelieve the evidence of the Sub Inspector whose conduct and the manner in which he proceeded to deliver the possession of the land appears to be wholly unreliable. The Court is not disbelieving the evidence of S. S. Tripathi PW-4 merely because he is of the police force but his evidence does not inspire confidence. ( 17 ) IN view of the discussion and appreciation of the evidence, as stated above, we are of the view that the judgement of the Court below convicting andsentencing the appellants to R. I. for life cannot be sustained. ( 18 ) THE appeal is allowed. The judgement and order impugned in the appeal is set aside. The appellants are given benefit of doubt. They are on bail and they need not surrender. Their bail bonds are cancelled. Appeal allowed. .