D. K. TRIVEDI, J. The present Criminal Appeal arises out of the judg ment and order dated 2-7-1980 passed by the Vth Addl. Sessions Judge, Hardoi, convicting the appellants under Section 147,302/149, I. P. C. and sentencing each of them to one years rigorous imprisonment and life imprisonment respectively in respect of an incident which is alleged to have taken place on 14-3-1977 at 7. 00 a. m. in village Bhitha Maha Singh, Police Sta tion Baghauli, District Hardoi in which one Laxman was killed. 2. The prosecution case, in brief, is that the complainant as well as the ac cused persons are the residents of the same village and there is one Neem tree near a well which is situate just near the Chabutra of Chittar accused. It is alleged that the said tree was the joint property of the accused as well as the complainant. On 14-3-1977 at about 7. 00 a. m. the deceased was going to his field and as soon as he reached in front of his house, the accused persons, namely, Chittar armeh with Mungri, Shri Ram armed with Thomaria and Binda, Santu and Mool Chand armed with Lathis came out and on the instiga tion of Chittar accused-appellant, all the accused persons started assaulting the deceased with their respective weapons. On hearing the cries complainant Hori Lal (P. W. 1) and others rushed to the scene of the incident and they all saw the inci dent. It is also alleged that several other persons including Chunnu, Murli P. W. 3, Subedar and Tondey P. W. 2 witnessed the incident. It is also alleged that on their challenge the accused persons ran away. Hori Lal P. W. 1 who is the brother of deceased Laxman lodged a First Informa tion Report at police station Baghauli at 9. 15 a. m. on the same day. The distance of the police station Baghauli from the place on the incident is about 10 kilometres. 3. The investigation of the case was entrusted to P. W. 4 S. I. Maiku Lal. He recorded the statement of the complainant Hori Lal at the police station itself and thereafter proceeded to the scene of occur rence and on reaching there the I. O. found the dead body of Laxman in front of the house of accused Chittar in the Galiyara and prepared inquest report and other relevant papers (Ex. He recorded the statement of the complainant Hori Lal at the police station itself and thereafter proceeded to the scene of occur rence and on reaching there the I. O. found the dead body of Laxman in front of the house of accused Chittar in the Galiyara and prepared inquest report and other relevant papers (Ex. Ka-5 to Ka-7 ). The dead body was sealed and the same was sent for post-mortem examination through Constable Brij Kishore and Homeguard Karhiley. The I. O. further recorded the statements of the other eye witnesses. He inspected the scene of occur rence and prepared site-plan (Ex. Ka-8 ). The Investigating Officer took sample of blood-stained and plain earth Ext. 3 and 4 and a Ford in respect thereof was prepared after sealing the same Ext. Ka-9. A search for the accused was made but they could not be traced out, however, the accused persons surrendered before the Court on 15-3-1977. After completing the investigation the Investigating Officer submitted charge-sheet against the ac cused persons. 4. The autopsy on the dead body of Laxman was conducted by Dr. A. K. Meh-rotra P. W. 6 on 15-3-1977 at 9. 45 a. m. and the Doctor found the following ante-mor-tem injuries, on the body of the deceased: (i) Lacerated crushed wound of size 18 cm. (horizontally) x 16 cm. (vertically) x brain cavity deep on left side of skull and face. The wound was extending horizontally from left ear to the mid line of nose and vertically from lower part of left ear to the top of skull. The left eye ball had been dislocated from its eye socket. The left maxilla and left side frontal, parietal and temporal bone were badly fractured and the bone fragments have drawn in their sockets. The badly lacerated brain matter was seen through the wound. The upper 2/3 of front surface of left ear was also lacerated. The left wall of nose was also lacerated. The left rains of mandible was also fractured. On seeing the wound it appeared as if there were multiple lacerated wound which had joined together and had caused such a big lacerated crushed wound. (ii) Three contusions each 1. 5 cm. x 1. 5 cm. in an area of 6 cm. x 6 cm. on back surface of left elbow. (iii) Contusion 3 cm. x 2 cm. on back surface of left shoulder. (ii) Three contusions each 1. 5 cm. x 1. 5 cm. in an area of 6 cm. x 6 cm. on back surface of left elbow. (iii) Contusion 3 cm. x 2 cm. on back surface of left shoulder. (iv) One contusion of size 37 cm. x 2 cm. slightly and obliquely placed on back surface of whole of left chest. (v) Contusion 2. 5 cm. x 1. 5 cm. on front surface of left knee. 5. According to the Doctor the death was caused due to shock and haemorrhage as a result of ante- mortem injuries. 6. The prosecution in support of its case, examined six witnesses. Out of them P. W. 1 Hori Lal, P. W. 2 Tondey and P. W. 3 Murli are the witnesses of fact. P. W. 3 Murli did not support the prosecution case, hence he was declared hostile. P. W. 4 Dr. A. K. Mehrotra, District Hospital, Hardoi, conducted post- mortem examination on the deadbody of the deceased and proved the post- mortem report Ext. Ka-2. P. W. 5 Constable Brij Kishore Tewari brought the deadbody of the deceased to the mortuary for post- mortem examination. P. W. 6 Maiku Lal, S. I. conducted investigation in the case and submitted charge- sheet against five accused persons mentioned above. The report was lodged against the appellants mentioned above as well as Shri Ram and Mool Chand. Shri Ram and Mool Chand were killed by the com plainant party during the pendency of the trial, therefore their trial stood abated against Shri Ram and Mool Chand. 7. On the other hand the accused persons denied the prosecution story and stated that deceased Laxman had illicit relations with the wife of Mool Chand and as he was found near the Tarwaha by Shri Ram and Mool Chand, they (Shri Ram and Mool Chand) killed the deceased Laxman. According to the defence the incident took place in the early parts of the morning at about 4 or 5 a. m. 8. The learned Additional Sessions Judge, after considering the evidence on record, came to the conclusion that the prosecution has successfully proved the guilt of the appellants beyond reasonable doubt and, therefore, he convicted and sentenced the appellants as mentioned above. 9. Aggrieved from the above said judgment and order, the appellants filed the present appeal. 10. The learned Additional Sessions Judge, after considering the evidence on record, came to the conclusion that the prosecution has successfully proved the guilt of the appellants beyond reasonable doubt and, therefore, he convicted and sentenced the appellants as mentioned above. 9. Aggrieved from the above said judgment and order, the appellants filed the present appeal. 10. We have heard the learned Coun sel for the appellants as well as the Addi tional Government Advocate at great length and perused the record. 11. The main contention of the appellants Counsel is that according to the prosecution case, the dispute arose on the cutting of certain branches of the Neem tree. According to the prosecution case the Neem tree belonged jointly to the complainant as well as Chittar and the accused persons had cut some branches of the said Neem tree just one day before the incident in question. It is said that on cut ting of the branches of the Neem tree a dispute arose and, therefore, on 14-3-1997 when the accused persons found the deceased just in front of his house then they committed his murder. The evidence on the record shows that the said Neem tree exclusively belonged to Chittar and the prosecution case that the same belonged jointly to Chittar as well as the complainant, is not correct. He also pointed out that the Investigating Officer did not find any branch of the Neem tree cut and lying on the spot, therefore, the story of the prosecution to this effect is not correct. He further pointed out that P. W. 3 Murli did not support the prosecution case and P. W. 2 Tondey, in his cross-examina tion admits that he did not see anybody assaulting the deceased. Therefore, the testimony of this witness is also not worthy to be relied upon. The testimony of P. W. I Hori Lal, thus, only remains. But he is also the brother of the deceased and further he introduced falsely the motive part in this case. It is also pointed out that P. W. 1 Hori Lal, in his statement also specifically stated that the deceased was assaulted by two persons, namely, Shri Ram and Mool Chand and he did not say specifically any thing against Chittar and Santu appel lants. It is also pointed out that P. W. 1 Hori Lal, in his statement also specifically stated that the deceased was assaulted by two persons, namely, Shri Ram and Mool Chand and he did not say specifically any thing against Chittar and Santu appel lants. On the other hand, the Additional Government Advocate contended that the prosecution case fully finds support from the medical evidence and the statement of P. W. 1 Hori Lal is consistent and his state ment shows that all the five persons men tioned above assaulted the deceased. P. W. 2 Tondey is the Pradhan of the village. In cross-examination P. W. 2 Tondey admits that the disputed Neem tree belonged to Chittar. He specifically stated that the dis puted Neem tree belonged to Chittar and others. He also stated that even the land also belonged to Chittar. He further stated that there was no dispute in respect of the Neem tree earlier. Apart from this, the Investigating Officer did not find any cut branches of the Neem tree and, therefore, the prosecution case to the extent that the dispute arose about the cutting of the branches of the Neem tree and only on account of this the murder was committed is not at all believable. From the statement of P. W. 2 Tondey in our opinion, it is clearly proved that the tree as well as the land belonged to Chittar and further the fact that no branches of the Neem tree were found at the place of the incident by the Investigating Officer also makes the prosecution case doubtful. P. W. 2 Tbndey further stated that he did not see anybody assaulting Laxman and further when he reached there then he found Laxman lying there. No doubt, earlier he stated that all the five persons assaulted the deceased, but in view of the conflicting stand taken by P. W. 2 Tondey, it is not possible to say that this witness is a reliable witness specially when he himself admits in his cross-ex amination that he did not see anybody assaulting the deceased. He further stated that Hori Lal P. W. 1 went to lodge report after meeting him and he narrated the incident to him and then he advised him to lodge the report. He further stated that Hori Lal P. W. 1 went to lodge report after meeting him and he narrated the incident to him and then he advised him to lodge the report. This also supports the contention of the defence Counsel that this witness was not present at the time of the incident. 12. Now there remains the statement of P. W. 1 Hori Lal. As pointed out above P. W. 1 Hori Lal stated that Laxman was killed due to the dispute about cutting of branches of the Neem tree. He also stated that this Neem tree jointly belonged to him as well as the accused persons. But as pointed out above the theory of motive and cutting of Neem tree has not been found correct and, therefore, the state ment of this witness to this extent is not believable. He further admits that the rela tions between the accused and the com plainant were cordial and the dispute was only with regard to the Neem tree, which took place just one day before. This dis pute has already been found to be not correct and, therefore, it is now definitely proved that there was no motive with the accused persons to kill the deceased Lax man on 14-3-1977 as alleged by the prosecution. On the other hand the defence suggestion is that the deceased had some illicit connections with the wife of Mool Chand and on the date of incident he was found inside the Tarwaha of the accused persons, therefore, he was killed by Shri Ram and Mool Chand. Shri Ram armed with Thomaria and Mool Chand was armed with Lathi. It is also admitted by P. W. 1 Hori Lal in his cross-examination that Shri Ram gave several Thomaria blows on the head of the deceased and the head injuries were fatal and the medical evidence finds full support that these in juries were fatal and the medical evidence finds full support that these injuries were caused by Thomaria. He further stated that Mool Chand also gave 2 or 3 Lathi blows to the deceased. He further stated that Mool Chand also gave 2 or 3 Lathi blows to the deceased. No doubt, he also stated that Binda also gave one lathi blow and on receiving the said Lathi blow Lax man fell down but in the early part of his statement, he stated that Mool Chand and Shri Ram assaulted the deceased with Thomaria and lathi and Laxman fell down receiving the said injuries. In view of this contradictory statement it is not possible to believe this part of the statement of P. W. 1 Hori Lal that Binda gave Lathi blow and on receiving the same Laxman fell down. The defence theory that he was assaulted by the two persons Shri Ram and Mool Chand as pointed out above finds supports from the medical evidence and in these circumstances the possibility of the fact that the deceased was killed by two persons and thereafter all others including brother and father etc. were implicated in this case, cannot be ruled out. In any case in view of the fact that the prosecution examined three eye-witnesses and out of them one did not support the prosecution case and the other one says that he did not see the assault part, itself makes the prosecution case doubtful. The testimony of P. W. 1 Hori Lal as pointed out above is self- con tradictory and the same cannot be said to be above board. Therefore, the conviction cannot be based on the solitary statement of P. W. 1 Hori Lal. As pointed out above P. W. 1 Hori Lal falsely and purposely intro duced the theory of motive which was found incorrect. There are also conflicting statements about the manner of assault, therefore, he cannot be said to be wholly reliable witness. 13. From the above discussion, in our opinion, the prosecution has failed to prove the guilt of the appellants beyond reasonable doubt. Accordingly the appeal deserves to be allowed. 14. The appeal is allowed. The judg ment and order dated 2-7-1980 passed by the Vth Additional Sessions Judge, Har-doi, convicting and sentencing the appel lants are set aside and they are acquitted of the charges leveled against them. The ap pellants are in Jail. They are directed to be released forthwith unless required in con nection with any other crime. 15. The judg ment and order dated 2-7-1980 passed by the Vth Additional Sessions Judge, Har-doi, convicting and sentencing the appel lants are set aside and they are acquitted of the charges leveled against them. The ap pellants are in Jail. They are directed to be released forthwith unless required in con nection with any other crime. 15. The office is directed to sent infor mation and a copy of this judgment to the Court concerned within two weeks. Appeal allowed. .