D. K. TRIVEDI, J. ( 1 ) IN the F. I. R, five persons including the four appellants and one Bhusaili were named and one person was un-named. The said unnamed person was not put-up for trial. The remaining five persons were convicted by I Additional Sessions Judge, Bahraich on 24-1-1979. They were sentenced to life imprisonment under Section 302/149, I. P. C. Appellant Kesho Ram was further sentenced under Section 147, I. P. C. to one years R. I. and a fine of Rs. 500/- and in default to further undergo R. I. for a period of six months. The other four appellants were also sentenced under Section 148, I. P. C. to two years R. I. and a fine of Rs. 500/- each and in default to undergo imprisonment for a further period of six months. Bhusaili had filed Criminal Appeal No. 178 of 1979 but he died during the pendency of appeal which abated. Appellant Badlu Ram of this appeal also died during the pendency of appeal which abated. Thus, this criminal appeal survives against the three appellants, namely, Kripa Ram, Maya Ram and Kesho Ram out of whom Kesho Ram is the son of Maya Ram. ( 2 ) APPELLANT Maya Ram and Bhusaili appellant of Criminal Appeal No. 178 of 1979 are brothers-in- law (Sisters husband) of deceased appellant Badlu. Appellant Kripa Ram and deceased appellant Badlu are said to belong to the same family. One Kandhai was a resident of village Ashokha. Deceased appellant Badlu Ram was the son of Swami Dayal, brother of Kandhai. Kandhai had only one issue namely Smt. Sanwara. She was married to Sanwali deceased. The deceased and Smt. Sanwara have a son Mahrajdin who was aged about seven years at the time of occurrence. Kandhai had also a son named Satgur who died during his life time. The wife of Satgur after the death of her husband remarried with Nidhan, resident of another village. After the death of Satgur, deceased Sanwali Prasad used to look after his agriculture land and migrated to the village of Kandhai for managing the agriculture land. Deceased Sanwali had called his nephew Maya Ram P. W. 1 to help him in agricultural operations. It is said that Kandhai had executed a Will in favour of Mahrajdin, son of his daughter and deceased Sanwali. Deceased Sanwali had called his nephew Maya Ram P. W. 1 to help him in agricultural operations. It is said that Kandhai had executed a Will in favour of Mahrajdin, son of his daughter and deceased Sanwali. After the death of Kandhai, Badlu Ram deceased appellant, Sanwali deceased on behalf of his son Mahrajdin and Satgurs wife applied for mutation. After contest, the name of the wife of Satgur was mutated. Apart from this, Badlu Ram deceased appellant ha9lodged an F. I. R of dacoity a few weeks prior to the incident against Sanwali deceased and P. W. 1 Maya Ram in which they were released on bail a few days prior to the occurrence. Besides Sanwali deceased had been sentenced to death in a murder case but his appeal was allowed, by this Court acquitting him a few weeks prior to the occurrence. Sanwali deceased was also involved in some other criminal cases. ( 3 ) THE occurrence is said to have been taken place on 8-4-1978 at about 7. 00 a. m. It is said that at that time deceased had just sat down for milking his buffalo in his Ghari (a place for tying cattle ). His nephew P. W. 1. Maya Ram was holding the calf: At that time all the six assailants including the three surviving appellants appeared there from Bhusaili (a place for storing fodder for animal) of Badlu Ram deceased, appellant. Out of them Badlu Ram, Kripa Ram and Maya Ram were each having a knife and Bhusaili deceased appellant of the connected Appeal No. 178 of 1979 was having a spear. Kesho Ram appellant and one unknown assailant caught hold of one hand each of Sanwali deceased who by then had stood up. The other assailants started giving blows from their respective weapons. On the alarm raised by P. W. 1, Maya Ram, P. W. 2 Husaini, P. W. 3 Sangam Pasi, Smt. Sanwara Wife of Sanwali deceased, Sanwalits sister and her husband Khelawan and several others came there, The wife and the sister of the deceased requested the assailants with folded hands not to kill Sanwali but it did not have effect on them. After inflicting the injuries, the assailants ran away. Sanwali died an instantaneous death. ( 4 ) AN oral F. I. R of the case was lodged by P. W. 1 Maya Ram the same day at 8. After inflicting the injuries, the assailants ran away. Sanwali died an instantaneous death. ( 4 ) AN oral F. I. R of the case was lodged by P. W. 1 Maya Ram the same day at 8. 30 a. m. i. e. after one and half hours of the occurrence, which was recorded by P. W. 4 Head Constable Sheo Kailash Tewa ri. ( 5 ) P. W. 7 Dr. RK. Srivastava conducted post-mortem examination on 9-4-1978 at 12. 40 p. m. He found as many as 34 ante-mortem injuries consisting of four lacerations, two contusions, five abrasions it including one multiple abrasion, two incised wounds and twenty one punctured wounds. The details of injuries are as follows:1. Lacerated wound 4 cm. x 1 cm. x bone deep on the top of skull. 2. Lacerated wound 2 cm. x 1/2 cm. x scalp deep right side skull 7 cm. from right ear. 3. Lacerated wound 3 cm. x 1 cm. x scalp deep frontal aspect in middle 8 cm. From bridge of nose. 4. Lacerated wound 2 cm. x 1 cm. x muscle deep over right cheek bone. 5. Incised wound 4 cm. x 1 cm. x bone over left leg. 6. Incised wound 1 cm. x 1/2 cm. right side of neck 3 cm. from right collarbone. 7. Punctured wound 1 cm. x 1/2 cm. x 1 cm right side of neck 1 cm. below injury No. 6. 8. Punctured wound 2-1/2 cm. over right side chest below right clavicle. 9. Contusion 1-1/2 cm. x 1 cm. over top of right shoulder. 10. Abrasion 2 cm. x 1 cm. over right shoulder 4 cm. from injury No. 9. 11. Punctured wound 2 cm. x 1 cm. x bone deep over right side chest 3 cm. below collarbone. 12. Punctured wound 1-1/2 cm. x 1 cm. x cavity deep over outer part of left side chest 8 cm. from left nipple. 13. Punctured wound 2 cm. x 1 cm. x bone deep over right side chest 7 cm. from xiphiternum 14. Punctured wound 1- 1/2 cm. x 1 cm. x bone deep over right side chest 3 cm. from rib margins. 15. Punctured wound 1- 1/2 cm. x 1 cm. x bone deep right side chest, 1-1/2 cm. from injury No. 14 (below ). 16. Punctured wound 2 cm. x 1 cm. from xiphiternum 14. Punctured wound 1- 1/2 cm. x 1 cm. x bone deep over right side chest 3 cm. from rib margins. 15. Punctured wound 1- 1/2 cm. x 1 cm. x bone deep right side chest, 1-1/2 cm. from injury No. 14 (below ). 16. Punctured wound 2 cm. x 1 cm. x cavity deep right side chest outer part 5 cm. from right nipple. 17. Punctured wound 2 cm. x 1 cm. x cavity deep on the outer part right side chest 2-1/2 cm. from (behind) injury No. 16. 18. Punctured wound 2 cm. x 1 cm. x bone deep right side chest 5 cm. from injury No. 17. 19. Punctured wound 3 cm. x 1 cm. x cavity deep right side outer part chest 4 cm. behind injury No. 17. 20. Punctured wound 1-1/2 cm. x 1/2 cm. x 3 cm. through and through over dorsum of right hand opening in palm. 21. Punctured wound 1 cm. x 1/2 cm. x 2 cm. over epigastrium in the middle. 22. Punctured wound 1/2 cm. x 1/2 cm. x 1 cm. right side abdomen, 8 cm. from umbilicus. 23. Contusion 12 cm. x 5 cm. over outer and upper part of right thigh. 24. Abrasion 1-1/2 cm. x 1 cm. over middle part of left leg. 25. Abrasion 1-1/2 cm. x 1 cm. on front of right leg in the middle. 26. Abrasion 1/2 cm. x 1/2 cm. on the back of right elbow 27. Multiple abrasion 9 cm. x 4 cm. over back of left elbow. 28. Punctured wound 1-1/2 cm. x 1 cm. x 4 cm. over post womb of left axilla. 29. Punctured wound 1-1/2 cm. x 1/2 cm. x 1 cm. over left side chest 7 cm. from left nipple. 30. Punctured wound 1-1/2 cm. x 1 cm. x 2 cm. over outer part of left side back of chest 10 cm. just above rib margins. 31. Punctured wound 1/2 m. x 1/2 cm. x 1 cm. outer part of left side back. 32. Punctured wound 5 in number over an area of 10 cm. x 10 cm. on front of left thigh. 33. Punctured wound 2 cm. x 1 cm. x 3 cm. over left leg part medial aspect 6 cm. from knee joint. 34. Punctured wound 1 cm. x I cm. x 2 cm. medial aspect of left leg 4 cm. 32. Punctured wound 5 in number over an area of 10 cm. x 10 cm. on front of left thigh. 33. Punctured wound 2 cm. x 1 cm. x 3 cm. over left leg part medial aspect 6 cm. from knee joint. 34. Punctured wound 1 cm. x I cm. x 2 cm. medial aspect of left leg 4 cm. from injury No. 33. The prosecution had examined three eye-witnesses, namely, P. W. 1 Maya Ram - Complainant and the nephew of the deceased P. W. 2, Husaini and P. W. 3 Sangam Lal. P. W. 4 Head Constable Sheo Kailash Tewari, has prepared chik report, P. W. 5 Constable Shyam Narain had brought dead body for post mortem examination, P. W. 7 Dr. R. K. Srivastava had conducted the postmortem examination. The case was investigated by P. W. 6 S. I. Tej Karan Singh who after interrogating the witnesses and after preparing the inquest, etc. submitted charge-sheet. ( 6 ) THE case of the appellants was that they have been falsely implicated on account of enmity. In defence two witnesses were examined, D. W. 1 Nand Kishore Jaiswal is a clerk in Revenue Office who came to prove that deceased Badlu Ram had not given any evidence in the mutation case which, related to agriculture land of Kandhai. D. W. 2 Rais Ahmad is a clerk of Advocate who came to prove some affidavit to show enmity with the witnesses. ( 7 ) THERE are several disturbing features of the case on account of which it is not possible to sustain conviction of the appellants. According to the post mortem examination, deceased sustained as many as eleven lathi injuries consisting of four lacerations, two contusions and five abrasions. The first four injuries are lacerations including two injuries on scalp, one on forehead and other on cheek bone which are on vital parts. Injuries Nos. 9 and 23 are contusions out of which size of injury No. 23 is 12 cm. x 5 cm. on the right thigh. Out of five abrasions, it could be said that injuries Nos. 10. 24, 25, 26, could be caused by a fall but so far as injury No. 27 is concerned it is a multiple abrasion 9 cm. x 4 cm. over back of left elbow, which can not be caused by a fall. x 5 cm. on the right thigh. Out of five abrasions, it could be said that injuries Nos. 10. 24, 25, 26, could be caused by a fall but so far as injury No. 27 is concerned it is a multiple abrasion 9 cm. x 4 cm. over back of left elbow, which can not be caused by a fall. It shows that atleast seven injuries, consisting of four lacerations, two contusions and one abrasion were caused by a blunt object like a lathi. Neither in the F. I. R nor in the statement on oath any assailant has been shown to have possessed a lathi. It was during the evidence in Court that improvement was sought to be made when P. W. 1 Maya Ram stated that Bhusaili deceased appellant of the connected appeal had wielded spear from reverse side. It was not stated either in the F. I. R. or in the statements recorded under Section 161, Cr. P. C. It is no doubt true that at times such weapons may be used from the reverse side also but in this case deceased sustained as many as 21 punctured wounds and therefore, there was hardly any occasion for using spear from the reverse side. Thus, there is conflict between medical evidence and the F. I. R version. ( 8 ) ANOTHER significant aspect of the matter is that Investigating Officer in the inquest has shown that he found dead body on a cot on which he did not find any blood stains. According to P. W. 1 Maya Ram when the assailants read run away, he found that Sanwali had died and, therefore, he kept his dead body on the cot, it is extremely unusual because amongst Hindus after the death, the dead body is immediately placed on the ground Apart from this deceased had sustained as many as 21 punctured wounds and two incised wounds and several other injuries from which he must have bled profusely. However, the Investigating Officer admitted that he did not find any bloodstains on the Bank of the cot. It show that the occurrence had not taken place there i. e. at the place alleged by the prosecution. However, the Investigating Officer admitted that he did not find any bloodstains on the Bank of the cot. It show that the occurrence had not taken place there i. e. at the place alleged by the prosecution. Apart from this, according to the F. I. R. as well as prosecution evidence, the deceased had just sat down for milking his buffalo when the occurrence took place but the Investigating Officer did not find any can or other utensil in which deceased was to milk the buffalo. Besides this, the deceased sustained as many as 34 injuries. According to the prosecution case these, injuries were inflicted in the presence of P. W. 1 Maya Ram, P. W. 2 Husaini, P. W. 3 Sangam, wife and the sister of the deceased, sisters husband of the deceased and several other persons. It is difficult to swallow that the assailants would continue to inflict as many as 34 injuries, when the witnesses are said to have arrived immediately when the occurrence began. The number, type and size of injuries indicated that assailants had leisurely inflicted injuries on the deceased. From all these accounts, it appears that the occurrence has not taken place at the place alleged by the prosecution but somewhere else. It was not mentioned in the F. I. R. that P. W. 1 Maya Ram had kept the body of the deceased on the cot but when the Investigating Officer found the dead body on the cot and mentioned this fact in the inquest report an improvement was made in the evidence that P. W. 1 Maya Ram had kept the dead body on the cot immediately after occurrence which is against the established tradition of Hindus. ( 9 ) THE, presence of the eyewitnesses examined is also doubtful. P. W. 1 Maya Ram is not only nephew of the deceased but he was a co-accused alongwith the deceased in the dacoity case about which an F. I. R. was lodged by Badlu Ram deceased appellant about a month prior to the occurrence and they had been released on bail few days prior to the occurrence. P. W. 1 Maya Ram is not only nephew of the deceased but he was a co-accused alongwith the deceased in the dacoity case about which an F. I. R. was lodged by Badlu Ram deceased appellant about a month prior to the occurrence and they had been released on bail few days prior to the occurrence. Further P. W. 1 Maya Ram was assisting the deceased in the management of the agriculture land about which mutation dispute between the deceased and Badlu Ram deceased appellant was going on, The Ghari in which the occurrence had taken place is a very small one when P. W. 1 Maya Ram was present by the side of the deceased. In these circumstances, the assailants would not have spared P. W. 1 Maya Ram. Further Maya Ram who lodged the F. I. R. did not mention in the F. I. R. or in the statement recorded under Section 161, Cr. P. C. that any assailant was having lathi whereas in the postmortem examination lathi injuries have appeared. In fact, P. W. 1 Maya Ram admitted that the appellants were having enmity against him. He stated that none of the assailants tried to catch hold of him. This is also unusual considering the inimical terms, which Maya Ram was having with the assailants. So far as P. W. 2 Husaini is concerned, his house is at the end of the village abadi but he stated that when he reached the place of occurrence he found that two of the assailants were holding one hand each of the deceased and the other assailants started inflicting blows from their respective weapons. It is simply unbelievable because P. W. 2 Husaini could not have reached just when the occurrence began from another end of the village. He admitted that Smt. Kunaina aunt of Badlu Ram had prosecuted him for theft in which Badlu Ram was doing Pairvi on behalf of his aunt. He further admitted that Badlu Ram and Bhagwati had beaten him 5 or 6 years prior to occurrence about which F. I. R. was lodged but it was compromised. He also admitted that there was a quarrel between him and Bhusaili deceased appellant of the connected appeal regarding purchase of wheel of bullock cart. Similarly the house of P. W. 3 Sangam is also situated near the house ofp. He also admitted that there was a quarrel between him and Bhusaili deceased appellant of the connected appeal regarding purchase of wheel of bullock cart. Similarly the house of P. W. 3 Sangam is also situated near the house ofp. W. 2 Husaini at the end of the village abadi. He too stated that when he reached the place of occurrence he found two of the assailants catching hold of the deceased by one arm each. Thus the presence of eyewitnesses becomes doubtful on the scene of occurrence. In view of the above, it is not possible, to place implicit reliance on their testimony which does not inspire confidence. ( 10 ) THE result is that this appeal succeeds and is allowed. Appellants are acquitted. They are on bail. They need not surrender. Their bail bonds are cancelled and sureties are discharged. Appeal allowed. .