( 1 ) THE three respondents stood charged for offences under Sections 302/307/323, I. P. C. all read with Section 34, I. P. C. There had been a further charge against Ram Surat Singh alone for offences under Sections 302 and 307, I. P. C. in S. T. No. 277 of 1978. The II Additional Sessions Judge, Azamgarh, had held the trial and by his judgment dated 8-2-1980 found that the prosecution had failed to establish the case against the three accused respondents beyond reasonable doubt and as such they were held not guilty and were acquitted. Respondents Ram Kirat and Ram Murat were on bail during the trial. They were discharged from their bail bonds. Respondent Ram Surat was in custody during the trial and he was directed to be released forthwith, unless required in connection with some other case. ( 2 ) THE appeal against acquittal was presented on behalf of the State on 3-7-1980 by the Public Prosecutor/government Advocate and by an order dated 28-7-1980, recorded by Hon. B. N. Katju, J. , the appeal was admitted and the respondents were noticed and appearance on their behalf was, subsequently, made. ( 3 ) THE F. I. R. in the instant case, bearing case Crime No. 169 under Sections 302/307, I. P. C. of Police Station Ahiraula, District Azamgarh, was lodged on 28-5-1978 at about 10. 30 p. m. for an incident that had allegedly taken place on the same day at about 6. 00 p. m. The complainant was one Ram Singar Singh. The F. I. R. had named all the three respondents as accused persons. The place of occurrence was stated to be village Abhaipur about six miles north of Ahiraula Police Station. The complainant stated that one Om Prakash Singh was made an accused in a case of alleged murder of one Ram Ajor, but after a trial this Om Prakash was acquitted. The brothers of Ram Ajor had an eye over this Om Prakash to avenge the death of Ram Ajor and they had been waiting for an opportunity. On 28-5-1978, the complainant and his son Om Prakash had gone to their garden situate in the south-west corner of the village. Certain is other persons, viz. Sabhajeet, Kuber and Hans Lochan were with them. On 28-5-1978, the complainant and his son Om Prakash had gone to their garden situate in the south-west corner of the village. Certain is other persons, viz. Sabhajeet, Kuber and Hans Lochan were with them. Sabhajeet had a land which he proposed to sale and the complainant and his son had gone to inspect that land. At about 6. 00 p. m. these persons reached the spot. The three respondents came there from their pump set lying nearby. Ram Kirat and Ram Murat had Lathis with them while Ram Surat was carrying a bag. Ram Surat asked them as to what for they had gone there. The complainant gave out the reasons. At this, Ram Surat exhorted that this was the proper opportunity and he instigated Ram Murat and Ram Kirat, who assaulted Om Prakash with Lathis. In defence, Om Prakash, Sabhajeet, and Hans Lochan also used their Lathis. Hans Lochan and Kuber also suffered injuries from Lathi blows given by the accused persons. On hue and cry the complainant also raised an alarm and rushed to the victims. Om Prakash ran away from the spot to save his life. The accused persons chased him. He fell down with a Lathi blow from Ram Murat and after he had fallen down Ram Surat took out a country made Katta and shot at Om Prakash. The shot hit him on his head, the brain matter came out, and Om Prakash died at the spot. Shouting at Hansa Lochan that he too should be killed so that he might not depose as an witness, Ram Surat opened fire on Hansa Lochan but, by chance, it did not hit him. The hue and cry attracted Ram Ashrey Yadav and Jhin Yadav to the spot. They had also seen the incident. The accused persons then ran away. These accused were described as brothers of Ram Ajor. The dead body of Om Prakash was brought to the tube-well of the complainant and thereafter the report was lodged. ( 4 ) DURING investigation the injuries of Hans Lochan and Sabhajeet were examined. The injuries of Kuber were also examined. Post-mortem examination was done on the dead body of Om Prakash on 30-5-1978 at Azamgarh hospital. Death was caused within one and half day of post-mortem examination. The nose was not recognisable. ( 4 ) DURING investigation the injuries of Hans Lochan and Sabhajeet were examined. The injuries of Kuber were also examined. Post-mortem examination was done on the dead body of Om Prakash on 30-5-1978 at Azamgarh hospital. Death was caused within one and half day of post-mortem examination. The nose was not recognisable. In the oral cavity the burst palate was found communicating with the cranium and brain matter was seen in the oral cavity. Face was found distorted as all the bones of the face were fractured in multiple pieces. There was a gun shot wound with blackening around the right side of the face which was an entry wound. There was a corresponding exist wound on the top of the skull. There were contusions on the shoulder. The death was caused due to Syncope as a result of the ante mortem injuries. Blood was found in chemical examination in the earth that was seized from the spot and in the wearing apparels of the deceased. The Serologist identified the blood as of human origin. ( 5 ) THREE affidavits were filed covering the statements of formal witnesses, viz. Praduman Raj, who had taken the seized materials to the chemical examiner, Bechan Ram on the same point, and Raj Bali Prasad on the point of production of a seal with which the seized materials were sealed. ( 6 ) THE prosecution had examined as many as nine witnesses. P. W. 1 Ram Singer Singh, P. W. 2 Kuber, P. W. 3 Ram Asrey and P. W. 4 Sabhajeet were the alleged eye-witnesses. P. W. 5 Krishan Singh had been a police constable. P. W. 6 Mahendra Singh was also a police constable. P. W. 7 Dr. Ghanshyam Chaturvedi, had conducted post-mortem examination on the dead body of Om Prakash Singh, P. W. 8 Tej Pratap Singh, was the Investigating Officer, and P. W. 9 Dr. R. P. Tiwari, had examined the injuries of Hans Lochan, Kuber and Sabhajeet. ( 7 ) THE accused persons were examined under Section 313, Cr. P. C. Ram Kirat Singh took up a plea that he was implicated due to old grudge and enmity. Ram Murat Singh and Ram Surat Singh also took up similar stands. Ram Surat had added that the complainant, Ram Singar Singh, had helped Ram Asrey and Kuber to occupy the house of Rambinaya Bhar. P. C. Ram Kirat Singh took up a plea that he was implicated due to old grudge and enmity. Ram Murat Singh and Ram Surat Singh also took up similar stands. Ram Surat had added that the complainant, Ram Singar Singh, had helped Ram Asrey and Kuber to occupy the house of Rambinaya Bhar. One Durgavijai Singh, who was a Member of the Legislative Assembly, is a relation of Ram Singar Singh and under his pressure a false case was instituted against them. ( 8 ) THE trial Court had considered the prosecution case and the evidence laid on behalf of the prosecution. It considered the injuries and the existing ill-feeling between the parties over the alleged murder of Ram Ajor. The trial Judge questioned the probability of the allegation that with one gun shot the entire head and face was reduced to pulp, beyond recognition. He also highlighted the discrepancies in the statement of Ram Singar Singh. He also questioned the truthfulness of the prosecution story on the ground of non-examination of independent witness. Only under these circumstances benefit of doubt was given to the present respondents. ( 9 ) IN the present appeal against acquittal this Court is certainly free to reappraise the evidence but if the interpretation given by the trial Court is also a probable one on the facts and circumstances of the case and if there is no perversity in the judgment, the Appellate Court may not disturb the finding of acquittal on the basis of benefit of doubt. ( 10 ) WE shall first take up the medical evidence. Dr. Ghanshyam Chaturvedi was examined as P. W. 7 to prove the ante-mortem injuries of Om Prakash Singh. This post-mortem examination was done on 30-5-1978 at about 8. 00 a. m. It was a well built body of a male, aged about 38 years. The skin was found peeling off the two eyes were missing. The nose was beyond recognition. The oral cavity was torn. The palates and cranium touched each other and brain material was coming out from the oral cavity. The bones on the face were broken and the face completely lost its shape. One contusion was there on the left shoulder. There was another contusion at that place and there was an wound of entry from the fire-arm 3 cm. below the right eye. The bones on the face were broken and the face completely lost its shape. One contusion was there on the left shoulder. There was another contusion at that place and there was an wound of entry from the fire-arm 3 cm. below the right eye. There was also an wound of exist corresponding to the aforesaid fire-arm injury on the skull bone. The brain tissues were found lacerated. Brain matter had come out. The base of the skull was broken. The jaws became loose due to fracture. No pellet or wad was found from the dead body. The whole face was virtually turned into a pulp which had to be reconstructed. The Doctor explained that because there was blackening and the margine was inverted, he had described the injuries on the face as gun shot injuries. Very clearly he had made a statement that these injuries, which he described at Nos. 3 and 4 (injuries on face and head), were not possible from Lathis. ( 11 ) WE may compare the medical opinion with the version of the incident, as given by the eye-witnesses. The evidence indicates that Om Prakash was first assaulted with Lathis and he ran for safety and when he had fallen down, he was shot at. This evidence clearly suggests that Lathi injuries were not caused on the face, at least to the extent found by the Doctor, as in that case the victim could not have run. There is no allegation of severe injuries on the face before gun shot in the oral testimony as also in the medical evidence. Thus, it is not clear as to how the whole face was virtually turned into a pulp from one gun shot. ( 12 ) WE may now engage ourselves to the allegation of lodging the F. I. R. The F. I. R. , according to the prosecution story, was lodged on the date of occurrence itself at 10. 30 p. m. The Police Station being only six miles away from the place of occurrence. P. W. 1, the complainant, has stated in his evidence that one Kalpu had carried the report of the incident to the Police Station and after Kalpu had left, the police had come to the tube-well of the complainant. The police had arrived at about 10. P. W. 1, the complainant, has stated in his evidence that one Kalpu had carried the report of the incident to the Police Station and after Kalpu had left, the police had come to the tube-well of the complainant. The police had arrived at about 10. 00 a. m. Kalpu had taken the report early in the morning to the Police Station. This admission of P. W. 1 suggests that the report was made not at 10. 30 p. m. but early in the morning and the police had come almost immediately thereafter to reach the spot at 10. 00 a. m. on the day following the incident. This Kalpu was not examined as an witness. The report was written by Mahabir Singh. This Mahabir Singh was also not examined. Kalpu and Mahabir could have explained when the report was written and when it was taken to the Police Station. Constable Shree Krishna Singh (P. W. 5), however, spoke of the F. I. R. having been lodged at 10. 30 p. m. on 28-5-1978 but his evidence further discloses that the special report was sent on 29-5-1978 through a General Diary (hereinafter referred to as the g. D. ) No. 3 which was proved as Ext. Ka-4. He claimed to have sent a radiogram on 28-5-1978 itself. The Constable, who carried the special report, came back only on 30-5-1978. Ext. Ka-3 is said to be the G. D. which speaks of despatch of a radiogram at 22. 30 hours. It appears that the special report was made on 29-5-78. There appears to be no reason why the special report was not made when the radiogram was sent and the message sent through the radiogram has not been brought on record. The absence of examination of Kalpu and Mahabir Singh, the admission on the part of P. W. 1 that the report was taken by Kalpu early in the morning to the Police Station and the time of sending the special report at 5. 30 a. m. on 29-5-1978 together with absence of production of the radio-message certainly cast a doubt as to whether the F. I. R. was made at 10. 30 p. m. on 28-5-1978 or at about 5. 00 a. m. on 29-5-1978. ( 13 ) WE may now come to the injuries allegedly sustained by Hans Lochan and Sabhajeet. 30 a. m. on 29-5-1978 together with absence of production of the radio-message certainly cast a doubt as to whether the F. I. R. was made at 10. 30 p. m. on 28-5-1978 or at about 5. 00 a. m. on 29-5-1978. ( 13 ) WE may now come to the injuries allegedly sustained by Hans Lochan and Sabhajeet. According to the prosecution story, these two persons had also received Lathis injuries. The injuries of Hans Lochan were examined on 29-5-1978 at about 2. 30 p. m. There were merely two contusions found on Hans Lochan and one contusion on Sabhajeet. The Doctor, who examined these injuries, was produced as P. W. 9. The Doctor had also examined Kuber and found a contusion and Kuber had made complaints of pain on the left thumb and left scapular region. Kuber was also allegedly assaulted by Lathi. The injuries on these persons were very minor and the Doctor clearly admitted in cross-examination that for all these three persons the injuries could have been manipulated (CHOTEIN BANAYEE YA BANWAI BHI JA SAKTI THI ). ( 14 ) THE witnesses of the alleged incident were P. W. 1 Ram Singar Singh, P. W. 2 Kuber, P. W. 2 Ram Asrey and P. W. 4 Sabhajeet. Hans Lochan was not examined in Court. P. W. 1 is the complainant and father of the deceased. He was at a distance of 150 steps from the place of alleged occurrence and he had stated, one of the respondents had exhorted the other two and how the assault began. It is their own evidence that to save Om Prakash Kuber, Hans Lochan and Sabhajeet had used their Lathis and Om Prakash took the chance to run away. He was chased. Ram Murat gave him a Lathi blow. He fell down and then he was shot at. There is no evidence that indiscriminate to Lathi blows were given on his face nor does the Doctor say that the face was turned almost a pulp by Lathi blows. The complainant further admitted in cross-examination that he had a licence for a gun and he was having the gun with him at the time of the present incident. There is no evidence that indiscriminate to Lathi blows were given on his face nor does the Doctor say that the face was turned almost a pulp by Lathi blows. The complainant further admitted in cross-examination that he had a licence for a gun and he was having the gun with him at the time of the present incident. It does not appeal to reason why he had not used the gun even in a bit to save his sons life when, according to his own evidence, Hans Lochan and others had used their Lathis in defence of Om Prakash. Had this witness been there with his gun, as claimed, he would have certainly intervened in self-defence of his son. His cross-examination further discloses that he had made a statement before the police to the effect that he had told Om Prakash that he would be waiting in the orchard while Om Prakash and others could inspect the chak. He had further admitted that he was a patient of elephantiasis for 8 to 10 years, but he had no difficulty in walking and moving. ( 15 ) P. W. 2 Kuber also spoke about the incident, as alleged in the F. I. R. In his deposition in Court, he had stated how he met Om Prakash near his tube-well and how he accompanied him to the chak of Sabhajeet. His cross-examination, however, indicates that such a claim was not made in his statement recorded under Section 161, Cr. P. C. This development puts a question mark on his claim of presence at the spot. He had not stated in his statement, recorded under Section 161, Cr. P. C. , that he had seen the fruits in the orchard plucked or that Om Prakash had taken him to the orchard to survey the damage. We have discussed earlier what were the injuries allegedly suffered by him and what was the opinion of the Doctor regarding the injuries being possibly manufactured. ( 16 ) P. W. 3 Ram Asrey is also an witness on the F. I. R. story. According to this witness, he heard the cries of Ram Singar Singh that the three respondents were assaulting his son. ( 16 ) P. W. 3 Ram Asrey is also an witness on the F. I. R. story. According to this witness, he heard the cries of Ram Singar Singh that the three respondents were assaulting his son. When he reached, he found Ram Singar at a distance of 200 steps north of the land of Sabhajeet, while Sabhajeet and Kuber were 50 to 60 steps south-west of Ram Singar and Om Prakash was about 30 steps north-east of Sabhajeet. Kuber and Hans Lochan was still further 30 steps away. He made out a story that when Om Prakash was attacked, Hansh Lochan, Kuber and Sabhajeet were not near him. He, thus, makes out a story absolutely different from the prosecution story that when Om Prakash had been assaulted, Sabhajeet and others used their Lathis to save him or that they too were assaulted. The incident, according to this witness, took place on the land of Sabhajeet. ( 17 ) P. W. 4 Sabhajeet also came forward to support the prosecution story and he claimed to have gone with Om Prakash to inspect orchard. This witness did not speak to the police about the damage caused to the fruits and plants in the orchard of Om Prakash. His presence was sought to be confirmed through his injuries and the evidence of the Doctor has already been discussed, concerning such injuries. He makes it clear that Om Prakash suffered twolathi blows on his shoulder and thereafter no otherlathiinjury was caused to him. Through this statement he supports the medical opinion that there was no injury on the face bylathiand, accordingly, we are back to the question whether a single gun shot could have caused such damage to the face bones. ( 18 ) IN his judgment the learned trial Judge had discussed about the story of damage of fruits in the orchard of Om Prakash and he had found from the analysis of the evidence that Ram Singar had not told the I. O. that the present respondents had damaged the fruits of the complainant. This was not stated in the F. I. R. as well. The learned Court below further found that Sabhajeet, Hans Lochan and Kuber were all partisan witnesses and only those persons were chosen to accompany them to the orchard. This was not stated in the F. I. R. as well. The learned Court below further found that Sabhajeet, Hans Lochan and Kuber were all partisan witnesses and only those persons were chosen to accompany them to the orchard. The evidence of Ram Asrey has been discussed above to indicate that he gave out a story not fitting with the prosecution version. There is further no good reason shown for removal of the dead body from the place of occurrence. It was suggested that Om Prakash must have been killed during night by unknown persons and only known enemies were involved and for that reason only the ocular evidence is incompatible with the medical evidence. ( 19 ) FOR all the reasons as above, it may not be stated that the learned trial Court had shown any perversity in holding that the prosecution had failed to establish the case beyond reasonable doubts. The records indicate that there are so many things which do not stand to reason and are not compatible with each other. Under these circumstances; the judgment of acquittal may not be interfered with. The Government appeal stands dismissed. Appeal dismissed. .