Judgment : K.C. Bhargava, J. 1. ACCUSED persons, namely Hari Shanker, Uma Shanker, Om Pal, Hori Lal, Bhayanna Singh and Naresh Pal Singh have been acquitted by the learned VIIth Additional Sessions Judge, Hardoi by his Judgment and order dated 29.5.1979 passed in Sessions Trial No. A-467 of 1978 of the charge under Sections 147, 323, 302,I.P.C. Aggrieved against this acquittal, the State has come up in appeal and has challenged the correctness of the order passed by the learned VIIth Additional Sessions Judge, Hardoi. 2. THE incident in the present case took place on 23.3.1978 at about 7.00 p.m. in village Chaina which is about 7 miles from police station Manjhila. According to the prosecution case, there was enmity between the deceased and the accused persons. THE complainant and the deceased had their enmity with Hari Shankar, one of the accused and his father with respect to land. One case under Section 307, I.P.C. was pending against Hari Shanker accused and his father Bhagwati Charan. A case under Section 107, Cr. P.C. was also pending between the parties. It has also been narrated in the first information report that Hari Shankar and other accused persons were in the look out to kill the deceased Hannu Prasad. THE facts as narrated by the prosecution are that the informant of this incident, Ashok Kumar Chaturvedi (P.W. 1) was studying in Class X in Sri Devi Sampad Inter College, Numukeshu Ashram, Shahjahanpur. On the date of the incident, i.e., 23.3.1978, his father, deceased Hannu Prasad, had gone to Shahjahanpur to take him to the village. While they were coming back to their village on motor-cycle and reached near the field of Gopal Barhai at about 7.00 p.m., the accused persons who were armed with lathis came out and surrounded the motor-cycle. They saw the accused persons in the light of the motor cycle. Accused Hari Shanker asked other accused persons to kill Hannu Prasad whereupon all the accused persons started beating Hannu Prasad with lathis. Both of them fell down from the motor cycle. Ashok Kumar Chaturvedi tried to save his father but he was also assaulted and he ran towards southern side. On alarm being raised by these two persons, persons from the village side came on the spot. Witnesses Malkhan (P.W. 3). Chittar (P.W. 5) and Chaina came on the spot. Both of them fell down from the motor cycle. Ashok Kumar Chaturvedi tried to save his father but he was also assaulted and he ran towards southern side. On alarm being raised by these two persons, persons from the village side came on the spot. Witnesses Malkhan (P.W. 3). Chittar (P.W. 5) and Chaina came on the spot. Inspite of the fact that the witnesses had reached the place of occurrence, the accused persons continued assaulting Hannu Prasad. When some persons from the side of village Chaina shouted that they are coming, then the accused persons ran away. After the accused persons had run away, the complainant and the witnesses went towards the deceased and found that he was still alive. Thereafter wife of the deceased and many other persons came on the spot on the tractor trolley, and the injured was taken to the police station where the complainant lodged the report of the incident. From the police station, a constable was sent along with injured Hannu Prasad to Hardoi for medical examination. When they reached near village Kaura, Hannu Prasad died and, therefore, they returned back to the police station. THE report was scribed by Puttu Lal (P.W. 10) which is Ext. Ka-1. Previously this report was lodged under Section 307,I.P.C. After the death of the deceased, the case was converted into Section 302, I.P.C. At the time of lodging the first information report, S.I. Rais Ahmad was present at the police station. He started investigation of the case. After conducting the investigation, he submitted the charge-sheet. Dr. A. K. Mehrotra (P.W. 2) examined the deceased and found the following ante-mortem injuries on the person of the deceased. 1. Lacerated wound 5 cm. x 1/2 cm. x scalp deep on left side of skull 15 cm. from left eye brow and 1 cm. left to mid line, obliquely placed. 2 Lacerated wound 6 cm. x 0.6 cm. x scalp deep 19 cm. from left eye brow and 2 cm. left to mid line, obliquely placed on skull. 3 Lacerated wound 7.4 cm. x 0.7 cm. x scalp deep on left side of skull 4 cm. behind injury No. 2, obliquely placed. 4 Lacerated wound 4 cm. x 1/2 cm. x bone deep on left side of skull 12 cm. from left ear and 8 cm. from occiput. Depressed skull fracture under the injury, obliquely placed. 3 Lacerated wound 7.4 cm. x 0.7 cm. x scalp deep on left side of skull 4 cm. behind injury No. 2, obliquely placed. 4 Lacerated wound 4 cm. x 1/2 cm. x bone deep on left side of skull 12 cm. from left ear and 8 cm. from occiput. Depressed skull fracture under the injury, obliquely placed. 5 Lacerated wound 2 cm. x 1/2 cm. x scalp deep on occiput of skull obliquely placed. 6 Lacerated wound 6.5 cm. x 0.6 cm. x bone deep on right parietal prominence of skull with fracture of underneath skull bone. It is obliquely placed. 7. Lacerated wound 4.5 cm. x 0.5 cm. x scalp deep, 4 cm. behind injury No. 6 on the right side of skull, obliquely placed. 8. Lacerated wound 3 cm. x 0.6 cm. x scalp deep on right side of skull 4 cm. right to mid line at the level of occiput of skull, obliquely placed. ft Contusion 4.9 cm. x 2.5 cm. on left angle of mandible, obliquely placed. 10. Abrasion 1 cm. x 1/2 cm. on right alna of nose. 11. Contusion 9 cm. x 3 cm. on outer surface of upper 1/3 of right upper arm obliquely placed. 12. Contusion 4 cm. x 2.8 cm. on outer surface of right upper arm 9 cm. above right elbow, obliquely placed. 13. Lacerated wound 3.5 cm. x 0.8 cm. x bone deep on outer and palmer and faces of proximal part of right thumb. There was fracture of underneath proximal phalanx of thumb. 14. Lacerated wound 2 cm. x 1 cm. x muscle deep on web of right palmer between index and middle fingers. 15. Contusion 6 cm. x 2.7 cm. on dorsum of right hand, obliquely placed. 16. Contusion 10 cm. x 3.2 cm. on outer surface of upper 1/3 of left upper arm, obliquely placed. 17. Multiple contusions in an area of 27 cm. x 10 cm. on dorsum of left hand extending to lower 1/3 of back of left forearm. 18. Contusion 5 cm. x 2.7 cm. on front and face of right knee. 19. Two abrasions each 1.5 cm. x 1.2 cm. and 3 cm. on lower surface of right knee. 20. Multiple contusion in an area of 28 cm. x 20 cm. on back spread on either side of mid line from thorasic 6 to lumber-2 vertebra on level. Contusion 5 cm. x 2.7 cm. on front and face of right knee. 19. Two abrasions each 1.5 cm. x 1.2 cm. and 3 cm. on lower surface of right knee. 20. Multiple contusion in an area of 28 cm. x 20 cm. on back spread on either side of mid line from thorasic 6 to lumber-2 vertebra on level. THE death took place about 3/4 day before. On internal examination he found that right parietal and left occipital bones were fractured under injuries Nos. 4 and 6. Membranes were lacerated. Clotted blood was present on surface of brain. THE death was caused due to shock and haemorrhage as a result of ante mortem injuries. Dr. J. K. Verma (P.W. 9) examined the injuries of Ashok Kumar complainant (P.W. 1) on 24.3.1978 at 2.00 p.m. and found the following injuries on his person: 1. Contusion 8 cm. x 2 cm. on the lateral side of left. 1 cm. below top of shoulder, red in colour, obliquely placed. 2 Contusion 10 cm. x 2 cm. on the lateral and posterior aspect of left arm, 3 cm. below injury No. 1, obliquely placed, red in colour. 3 Contusion 6 cm. x 2 cm. on the back of left shoulder just below the spine of scapular and just lateral to it, obliquely placed, red in colour. 4. Contusion 10 cm. x 2 cm. on the back of right shoulder over the scapular region, obliquely placed, red in colour. 5 Contusion 7 cm. x 2 cm. on the back of chest, obliquely placed, just medial to injury No. 4, on the right side, red in colour. 6 Abrasion 4 cm. x 2.5 cm. on the lower side back just lateral to mid line and at the level of T.2 vertebra. 7. Complaint of pain on the back of neck, left forearm and both glutal regions. All the injuries, except injury No. 4, were simple and were caused by blunt object and their duration was about one day. Injury No. 4 was kept under observation and on X-ray it was found to be simple. 3. THE prosecution examined Ashok Kumar Chaturvedi (P.W. 1) complainant. Dr. A. K. Mehrotra (P.W. 2) who conducted the post-mortem examination, Malkhan (P.W. 3) eye-witness, Vishwa nath (P.W. 4), Chiitar (P.W. 5) eye-witness, Shaukat Ali (P.W. 6), Ram pujan Yadav (P.W. 7), S. I. Rais Ahmad (P.W. 8), Dr. 3. THE prosecution examined Ashok Kumar Chaturvedi (P.W. 1) complainant. Dr. A. K. Mehrotra (P.W. 2) who conducted the post-mortem examination, Malkhan (P.W. 3) eye-witness, Vishwa nath (P.W. 4), Chiitar (P.W. 5) eye-witness, Shaukat Ali (P.W. 6), Ram pujan Yadav (P.W. 7), S. I. Rais Ahmad (P.W. 8), Dr. J. K. Verma (P.W. 9) who examined the injuries of the complainant, and Puttu Lal (P.W. 10) who is scribe of the first information report. 4. THE defence examined Pratap Narain Gupta (D.W. 1), Subedar Singh (D.W. 2 md Hardwari Lal (D.W. 3). THE court also examined Mool Chandra Tewari (C.W. 1). - perusing the evidence on record, the learned VIIth Additional Sessions, Hardoi acquitted the accused persons as aforesaid. Aggrieved against the order, the State has come up in appeal and has challenged the correctness of the findings recorded by the trial court. 5. LEARNED Additional Government Advocate and learned counsel for the respondents have been heard. According to learned Additional Government Advocate, the learned trial court has not appreciated the evidence on record and on the basis of the evidence on record, acquittal has wrongly been granted In favour of the respondents. According to the learned Additional Government Advocate, Ashok Kumar Chaturvedi (P.W. 1) is an injured witness and his presence on the place of occurrence cannot be doubted On the other hand, the learned counsel for the respondents has argued that the presence of Ashok Kumar Chaturvedi (P.W. 1) on the place of incident is not proved on record and is doubtful. He has further argued that the injuries of Ashok Kumar Chaturvedi are such that can be self-inflicted and no importance can be given to the statement of this witness on account of his being injured. 6. IT has been seen in the earlier part of this Judgment that Ashok Kumar Chaturvedi (P.W. 1) was getting education at Shahjahanpur where he was living in a rented room in Mohalia Tarin Tikli. His father Hannu Prasad, deceased, used to reside in the village. On the day of occurrence, he had gone to school for education purposes and when he returned back in the evening from his school at 4.30 p.m., his father took him to the village on motorcycle. While they were on their way to the village, the incident took place in the manner alleged by the prosecution. On the day of occurrence, he had gone to school for education purposes and when he returned back in the evening from his school at 4.30 p.m., his father took him to the village on motorcycle. While they were on their way to the village, the incident took place in the manner alleged by the prosecution. This statement of Ashok Kumar Chaturvedi (P.W. 1) reveals that on the date of the incident he had gone to school to get education and when he returned from the school, he met his father at his room where he was living at Shahjahanpur. From there the father and the son started for the village. The question which arises is as to whether on the fateful day Ashok Kumar Chaturvedi had gone to the school or not. IT is the definite statement of Ashok Kumar Charurvedi that on i hat day he had gone to the school. But on that day, the school was closed on account of holiday and this fact is proved by the evidence lea by the defence. The defence has produced Pratap Narain Gupta (D.W.1) who has stated that he is Assistant Clerk in Devi Sampatti Moksha Asmv in Inter College, Shahjahanpur. He brought with him the order No. 18 dated 21st March, 1978 passed by Sri Durgesh Chandra Saxena, Principal of the College, regarding closure of the College from 22nd March, 1973 to 27th March, 1978 on account of Holi holidays. Signatures of all the teachers are present on this oder. After the holidays, the College opened on 28th March, 1978. He has filed a true copy of that letter as Ext. Kha-2. He also brought with him attendance register of the year 1977-78 of Class X-B. This register also revealed that the College was closed from 22nd to 31st March, 1978 on account of prepatory leave for High School examinations. He has proved the entries of this register. He has further stated that in Class X-B Ashok Kumar Chaturvedi son of Hannu Prasad was not being educated in the school in the year 1978. Ashok Kumar son of Ram Bharosey Saxena used to study. In cross-examination, he has stated that in the attendance register, the name of Ashok Kumar son of Hannu Prasad is entered in the scholar register of 1977-78 as a student of class X-C. He was a regular student. Ashok Kumar son of Ram Bharosey Saxena used to study. In cross-examination, he has stated that in the attendance register, the name of Ashok Kumar son of Hannu Prasad is entered in the scholar register of 1977-78 as a student of class X-C. He was a regular student. The learned Additional Government Advocate has pointed out that there are cuttings and over-writings in the attendance register which places suspicion on the entries contained in this register. It is not necessary for this Court to enter into this controversy because the fact that the College was closed on account of holidays w.e.f. 22nd March, 1978 to 27th March, 1978 is proved by the order of the Principal of the College. Even the attendance register shows that no attendance was taken during this period. The Court is not concerned with other entries of this register. The Court is only concerned with the fact as to whether the College was open on the day of the incident or not. This witness has been cross- examined on this aspect of the matter but there was nothing which may discard his statement. Thus, in the face o: the evidence of Pratap Narain Gupta (D.W. 1), which could not be shattered by the prosecution in the cross-examination, it is proved fiat on the date of the incident the College was closed and Ashok Kumar Chaturvedi (P.W. 1), complainant did not go to the College that day. 7. WHEN this fact has been established on record that Ashok Kumar Chaturvedi (P.W. 1) did not go to the College on the date of the incident, the subsequent theory of Ashok Kumar Chaturvedi that he accompanied his father also fails. No reliance was placed on this part of the statement of Ashok Kumar Chaturvedi that on the fateful day. he went with his father to the village and the murder of his father was committed while they were on their way to their house. 8. THE evidence on record clearly shows that Hannu Prasad was done to death on 23rd March, 1978 but that fact itself is not sufficient to show that Ashok Kumar Chaturvedi (P.W. 1) was present at the time of murder. 8. THE evidence on record clearly shows that Hannu Prasad was done to death on 23rd March, 1978 but that fact itself is not sufficient to show that Ashok Kumar Chaturvedi (P.W. 1) was present at the time of murder. As far as the injuries on the body of Ashok Kumar Chaturvedi (P.W. 1) are concerned, it can be said that they are all self-inflicted injuries and the presence of those injuries will not go to show that he was present at the time when the incident had happened. Dr. J. K. Verma (P.W. 9) has examined the injuries of Ashok Kumar Chaturvedi (P.W. 1). In his opinion, all the injuries were simple in nature. In cross-examination, he has stated that all the injuries of Ashok Kumar Chaturvedi could be self-inflicted. Thus, on the basis of the evidence on record, it is also clear that the injuries on the person of Ashok Kumar Chaturvedi could have been caused by himself or by some other person in order to show that he was also present at the place of the occurrence. Thus, the presence of Ashok Kumar Chaturvedi (P.W. 1) at the place of occurrence is not free from doubt, hence no reliance can be placed on his statement. 9. THE next eye-witness is Malkhan (P.W. 3). According to his statement on the date of incident, he was coming back from village Gadaiya at about 7.00 p.m. In the cross-examination, he has stated that on that day he had gone to his uncle Badri for a feast which was held on account of the death of his sister-in- law (Bhabhi), the wife of Badri. Badri and Hardwari live in the same house and the feast was given by Hardwari. THE defence has examined Hardwari as D.W. 3. He has stated that his wife died about 10-11 years back and after the death of his wife, the work was finished in 13 days. His brother Badri and the wife of Badri are alive. He categorically stated that on the last Holi, no feast of Terahvi was held by him and Malkhan (P.W. 3) did not go to his place. This witness has been cross- examined at some length but his statement could not be shaken on this point. This statement proves that no feast was held at the place of Hardwari as stated by Malkhan (P.W. 3). This witness has been cross- examined at some length but his statement could not be shaken on this point. This statement proves that no feast was held at the place of Hardwari as stated by Malkhan (P.W. 3). Thus, the presence of Malkhan (P.W. 3) at the place of occurrence also becomes doubtful. 10. THE next witness of fact is Chittar (P.W. 5). According to him, he had gone at about 10-11 a.m. to village Sallia. He and Chinta had gone there. He reached Sallia at about 12.00 noon and after purchasing cloth, he was coming back in the evening when he saw the incident. In cross-examination, he was asked as to whether Om Pal accused gave evidence against Bhuja. He further stated that Bhuja is his uncle's son. THE statement of this witness cannot be relied upon in the face of the other evidence on record which has been discussed above and has been disbelieved. Thus, we find that the ocular evidence on record does not prove that it were the respondents who committed the murder of Hannu Prasad. It is an admitted fact that there was enmity between the parties. It is also possible that on account of this enmity, the complainant has falsely implicated the respondents who were enemies specially in the circumstance that murder was not witnessed by any one. In such circumstances, when murder is not witnessed by any one, the enemies are falsely roped in. This case also appears to be of that type. Thus, from the evidence on record, it is clear that the prosecution has failed to prove that the respondents committed the murder of the deceased Hannu Prasad. THE findings of the learned trial court to that effect are perfectly correct and are affirmed. The appeal has no force and is dismissed. The respondents are on bail. They need not surrender. Their bail bonds are cancelled and sureties are discharged. Appeal dismissed.