Judgment N.S. Gupta, J. 1. Accused-appellant Rakesh, who was convicted under Section 302, I.P.C. by judgment and order dated 23-2-1995 passed by Sri Onkareshwar Bhatt, the then Sessions Judge, Banda and was sentenced to undergo imprisonment for life, has come up in appeal before this Court. 2. The prosecution claimed that on 23-11-1993 at about 12 noon, the deceased Bitti was going towards her fields situate in village Dhumra P.S. Fatehganj District Banda. She was carrying in Daliya containing seeds of wheat into the same and seeds of mustard in another Daliya. She was wearing a Dupatta of red colour. When she reached near the field of Ram Khilawan, accused-appellant Rakesh caught hold of her heirs and dragged her inside the field. Smt. Ganeshiya R.W. 4 and her brother Hari Shankar were attracted to the scene of occurrence, where they saw the accused dragging the deceased inside the field. The prosecution maintained that the accused-appellant gave sickle blows on the neck of the deceased and killed her. Raj Kumar R.W. 1 who was cousin of the deceased prepared a written report Ex. Ka-1 and lodged the same at the police station Fatehganj at about 4.30 p.m. the police station lay at a distance of about 14 Kms from the place of occurrence. On the basis of this first information report case crime No. 56 of 1993 under Section 302, I.P.C. State v. Unknown was registered at P.S. because the name of the accused-appellant was not mentioned in this first information report. 3. The investigation of the case was taken up by S.I., Shitla Prasad Varma, P.W. 6, who was then working as Station Officer Fatehganj. He immediately recorded the statement of the complainant Raj Kumar and rushed to the scene of occurrence some time in the night. He prepared the inquest report in respect of the dead body of the deceased in the morning of 24-11-1993 and sent the same for post-mortem examination. He recovered blood stained and simple earth from the scene of occurrence and prepared the recovery memo Ex. Ka-11 about the same. He recovered wooden portion of the Hansiya which was stained with blood from the scene of occurrence as also two baskets, which were lying near the scene of occurrence. He, there after recorded the statement of Smt. Ganeshiya and Hari Shankar. Ka-11 about the same. He recovered wooden portion of the Hansiya which was stained with blood from the scene of occurrence as also two baskets, which were lying near the scene of occurrence. He, there after recorded the statement of Smt. Ganeshiya and Hari Shankar. He arrested the accused-appellant on 26-11-1993 and recovered blood stained lansiya as also a Kurta on the pointing out of the accused. He prepared the site plan Ex. Ka-16of the scene of occurrence and after concluding his investigation submitted a charge-sheet against the accused-appellant. 4. After committal of the case to the Court of Sessions, the learned trial Judge framed a charge under Section 302, I.P.C. against the accused-appellant to which he pleaded 'not guilty' and claimed trial. He pleaded that one Shyam Sunder was responsible for committing dacoity at his house. He pleaded that Shyam Sundar was related to Nawal and maintained that he has been falsely implicated into this case, because of the said enmity. The accused-appellant did not adduce any evidence in defence. The prosecution in support of its case examined six witnesses. They were P.W. 1 Raj Kumar, who is the maker of the first information report and proved the first information report Ex. Ka-1. P.W. 2 Hari Shanker is the brother of the deceased, who has given an eye-witness account of the occurrence in question, P.W. 4 Smt. Ganeshiya is the aunt of the deceased who too has given ocular evidence, P.W. 3 Lala stated about the recovery of Hansiya and Kurta by the police on the pointing out of the accused, P.W. 5 Dr. Ashok Upadhyaya was the Medical Officer, who conducted autopsy on the dead body of the deceased on 24-11-93 at about 4 p.m. and found that the deceased was aged about 14 years and about 3/4 days had passed since her death. She was thin Clotted blood was present on her body. The doctor found the following anti-mortem injuries on the person of the deceased: (1) Incised wound 5 x ½ cm x muscle: deep on back of neck. (2) Incised wound 4 x 1 cm x muscle deep on left side of neck 4 cm below root of left ear. (3) Incised wound 5 x 2 cm x muscle deep on right side of neck 2½ cm below root of right ear. (2) Incised wound 4 x 1 cm x muscle deep on left side of neck 4 cm below root of left ear. (3) Incised wound 5 x 2 cm x muscle deep on right side of neck 2½ cm below root of right ear. (4) Incised wound 12 x 3 cm x bone deep just below both angle of mandible on front of neck trachea oesophagus, neck vessels and neck muscle cut through and through but cervical vertebrae were intact. 5. On internal examination, the doctor found that larynex trachea were cut through and through. The stomach contained 250 grams of semi-digested food. The doctor opined that the deceased had died due to shock and haemorrhage, which resulted from the aforesaid ante-mortem injuries. He maintained that the deceased could have died because of these injuries on 23-11-1993 at about 12 noon, the date and time of the occurrence suggested by the prosecution. 6. P.W. 6, Sri Shitla Prasad Varma was the investigating officer of the case. We have heard Sri V.C. Tiwari, learned Senior Counsel for the accused-appellant and A.G.A. for the State and have perused the record of the case. 7. It was vehemently argued by the learned Counsel for the accused-appellant that the name of the accused-appellant was not mentioned in the first information report, which was admittedly lodged by Raj Kumar P.W. 1, cousin brother of the deceased, soon after the occurrence. It was further argued that on the basis of the averments of this first information report, it should be concluded that Smt. Ganeshiya P.W. 4 and Hari Shankar P.W. 2 who have now come forward as an eye-wit nesses of the occurrence reached at the scene of occurrence much after the deceased was done to death. It would be relevant to reproduce the first information report, which reads as under: 8. Raj Kumar P.W. 1 was admittedly the cousin brother of the deceased. He stated in his statement on oath before the Court below that he did not see any body assaulting the deceased but maintained that he had gone to the police station to lodge the report Ex, Ka-1, which he had written on a shop before reaching the police station. He stated that along with him the village Chaukidar named Mulu and also gone to the police station. They both had gone on bicycle. He stated that along with him the village Chaukidar named Mulu and also gone to the police station. They both had gone on bicycle. During the course of his cross- examination, this wit ness stated that he had read up to XI class. He stated that when the deceased had gone to the fields, he was not present at the house. He was ploughing his fields, which were situate at a distance of about ½ Km. from the village. The place where the deceased Bitti was murdered lay at a distance of about 4-5 fields. He stated that Smt. Ganeshiya P.W. 4 was his mother. She was at his house. He was unable to state the time at which Smt. Ganeshiya started for the fields. He stated that he started from his house at about 10 a.m. He further stated that he reached at the scene of occurrence after hearing the cries of his mother P.W. 4 and Hari Shankar P.W. 2. He was unable to state as at what time the deceased had started from her house to the fields but maintained that when he reached at the scene of occurrence his mother Smt. Ganeshiya P.W. 4 and Hari Shankar were very much present there. He further stated that Ishwari, Chunbad, Majhleand Raja Bhaiya of the village were also present there. He remained at the spot for about 5 minutes and thereafter came back in his village and went away to lodge a report about the matter. He stated that he did not talk to any body regarding the incident. He started for the police station after 12 O'clock. Hari Shankar P.W. 2 was the real brother of the deceased. He too had read upto XI class. He did not ask Hari Shankar P.W. 2 to go and lodge a report because every body was weeping. He stated that he was an adult and there fore went to police station to lodge the report. The police station lay at a distance of about 16 Kms. from the place of occurrence. He reached the police station at about 4 p.m. and lodged a report. He stated that the place where he had written down the report was situate at a distance of 15 paces from the police station. He himself wrote the report by borrowing a paper from a shop-keeper. from the place of occurrence. He reached the police station at about 4 p.m. and lodged a report. He stated that the place where he had written down the report was situate at a distance of 15 paces from the police station. He himself wrote the report by borrowing a paper from a shop-keeper. He denied the suggestion of the defence on the point that he had written the report inside the police station on the dictation of Head Moharrir. He stated that sub-inspector of Police had started from the police station at about 5 p.m. He deputed two constables to safeguard the dead-body of the deceased at the field. He showed his ignorance on the point as to whether the police had raided the house of the accused on that very night and had arrested him. It would thus be seen that the complicity of the accused-appellant in the occurrence of this case is not at all established by the statement of this witness, rather it is established from the averments of the first information report which was admitted and proved by this witness that Hari Shankar P.W. 2 and Smt. Ganeshiya P.W. 4 came on the scene of occurrence after about half an hour of the occurrence. 9. P.W. 2 Hari Shankar and P.W. 4 Smt. Ganeshiya are two eye-witnesses of the occurrence. Hari Shankar P.W. 2 is the real brother of the deceased He stated that the deceased Bitti was murdered in the field of Ram Khilawan at about 12 noon when she was going towards his fields. He heard the cries of his sister the deceased Bitti, who was then a minor girl aged about 14 years. He stated that as soon as he reached near the field of Ram Khilawan there he saw that the accused-appellant Rakesh was holding the Chutiya of the deceased and was dragging her inside the field. He stated that his sister was killed by the accused-appellant by means of Hansiya by assaulting the deceased over her neck and ran away. He stated that meanwhile his aunt Smt. Ganeshiya also reached there but feeling frightened from the accused she did not run after him. He stated that the Tahmad of the accused-appellant was stained with blood and the wooden blade of the Hansiya had fallen in the field. The other villagers also came in the evening. He stated that meanwhile his aunt Smt. Ganeshiya also reached there but feeling frightened from the accused she did not run after him. He stated that the Tahmad of the accused-appellant was stained with blood and the wooden blade of the Hansiya had fallen in the field. The other villagers also came in the evening. The police officials came; the investigating officer did not interrogate him in the night. The investigating officer recorded his statement on the next day. The dead body of her sister remained lying over the field during night, which was safeguarded by the police constable. On the next day morning, the sub-inspector of police inspected the dead body as also the spot and sent the dead-body for postmortem examination. 10. During the course of his cross-examination he stated that the investigating officer had recorded his statement on the next day in the morning at about 7 a.m. whereas the investigating officer had arrived at the spot around 5 p.m. on the preceding day. He stated that the deceased was coming to him in his field and that he had seen the occurrence of this case from a distance of about 40-50 paces. P.W. 2 Hari Shankar was a young lad of 19 years of age. If it was a fact that he had seen his sister being dragged by the accused-appellant or for that matter by any body else from a distance of 40-50 paces, it is not possible to believe that he would have remained there like a mute spectator. In that event he must have pounced upon the man, who was dragging his sister by means of her Choti into the field; probably for the obvious reason/object of satisfying his lust. When cross-examined on the point of actual incident, this witness stated that the accused-appellant had assaulted twice by means of Hansiya to the deceased. The medical evidence of Dr. Ashok Upadhyaya P.W. 5 shows that as many as 4 incised wounds were found on the person of the deceased. It means that the deceased was not assaulted only twice but was assaulted four times. He stated that Raj Kumar had arrived at the spot after some time. He further slated that on the date of the occurrence he did not state to any body as to who had killed his sister Bitti. It means that the deceased was not assaulted only twice but was assaulted four times. He stated that Raj Kumar had arrived at the spot after some time. He further slated that on the date of the occurrence he did not state to any body as to who had killed his sister Bitti. It was then again an unnatural conduct of a brother that when his cousin brother Raj Kumar had arrived at the spot, it is not possible that he would not have disclosed the name of the assailant to his cousin brother Raj Kumar, who had lodged the report about the matter at the police station. The circumstance that he did not disclose the name of the assailant even to his cousin brother Raj Kumar fully go to show that he was not present at the spot at the lime of the occurrence. In a Court question this witness replied that even to his family members, he did not tell as to who had assaulted the deceased. This again was an unnatural conduct of a brother whose sister was done lo death right in his presence. Sim. Ganeshiya (P.W. 4) has deposed herself to be another eye-witness of the occurrence. She stated that on the date of the occurrence the deceased was going ahead to her, with a Daliya in her hand containing seeds of wheat. She stated that when the deceased reached near the field of Ram Khilawan, accused-appellant Rakesh caught hold of the Chutiya of the deceased. He dragged her inside the field. The deceased cried. This witness staled that she ran, then the accused-appellant assaulted the deceased in her neck and ran away. She stated that Mooth of the Hansiya had fallen down. She raised an alarm and attracted Hari Shankar, brother of the deceased. During the course of her cross-examination, she stated that she had started from her house along with Bitti, deceased after taking meals. It was noon time. The deceased Bitti was 2-3 paces ahead of her. She stated that she did not sec the accused- appellant talking Bitti. She started that the accused-appellant dragged the deceased for about 2 Lathis in side the field. She immediately ran but feeling frightened she did not grab the deceased nor tried to save the deceased. She staled that she did not cry when the accused had run away. She stated that she did not sec the accused- appellant talking Bitti. She started that the accused-appellant dragged the deceased for about 2 Lathis in side the field. She immediately ran but feeling frightened she did not grab the deceased nor tried to save the deceased. She staled that she did not cry when the accused had run away. She slated that she was crying since before. She was unable to stale the direction in which the accused-appellant was standing at the time when he was assaulting the deceased by means of Hanshiya. She stated that at that time, her eyes had been closed. She further stated that it was time of sowing crops, but there was nobody in the adjoining fields at the time of the occurrence of this case. She stated that hearing her cries, the villagers came and Hari Shankar P. W. 2 came there first of all. She maintained that she had given her statement before the investigating officer on the next day of the occurrence. She further stated that when her son Raj Kumar had gone to lodge the report at the police station, he did not meet her, but maintained that Raj Kumar had gone lo lodge a report about the matter after murder of the deceased. She further slated that Raj Kumar did not meet her before going to police station to lodge a report nor he-came on the scene of occurrence. She slated that the investigating officer did not enquire from her about the place of occurrence. She staled that on the dale of the occurrence, she had told the people like Bhagwan Din that the accused-appellant Rakesh was responsible for cutting the neck of the deceased. He should slate here that if it was a fact that this witness Smt. Ganeshiya had gone to the field in question along with the deceased and if the deceased was dragged in her presence and was assaulted by means of Hansiya this witness being closely related lo the deceased would not have kepi mum about the mailer. He should slate here that if it was a fact that this witness Smt. Ganeshiya had gone to the field in question along with the deceased and if the deceased was dragged in her presence and was assaulted by means of Hansiya this witness being closely related lo the deceased would not have kepi mum about the mailer. In the first instance, she must have tried lo grab the deceased and in the second place, she would not have allowed the accused-appellant to escape from the scene of occurrence, so very easily; when the brother of the deceased namely Hari Shanker P.W. 2 had reached at the scene of occurrence soon thereafter, it is not believable that the accused-appellant would have been allowed to run away from the scene of occurrence after committing heinous murder. The circumstance that this witness did not state anything to the investigating officer right on the date of occurrence when the investigating officer arrived in the village about the meticulous details of the occurrence, fully go to suggest that she did not see the accused appellant committing murder of the deceased with her own eyes. If she could have narrated the tale of the murder of the deceased to the villagers like Bhagwan Din, it is not possible that she would have omitted to disclose this fact to the investigating officer right on the dale of the occurrence. The circumstance that this witness disclosed the name of the accused-appellant as the culprit only on the next day goes to show that she named the accused appellant as the assailant by making full deliberations during night. Under the circumstances, the evidence of two wit nesses of fact, namely, Hari Shankar P.W. 2 and Smt. Ganeshiya P.W. 4 appears to be a got up one. The absence of the name of the accused-appellant from the first information report, the circumstance that according to the first information report Smt. Ganeshiya came on the spot only after half an hour and on hearing her cries Hari Shankar came There after and there after the other members of the family were attracted to the scene of occurrence fully go lo establish that these witnesses, namely, Hari Shankar P.W. 2 and Smt. Ganeshiya P.W. 4 were not really eye-witnesses of the occurrence. Their evidence, therefore, fails to inspire confidence. Their evidence, therefore, fails to inspire confidence. The trial Court appears to have grossly erred in relying upon the same. 11. P.W. 3 Lalaram is a witness of recovery by the police of blood stained Hansiya, tahmad and Kurta on the pointing out of the appellant. He had signed the recovery memo, which was prepared by the investigating officer regarding these articles. There is nothing on record of the case to suggest that these articles viz. Hansiya, Tahmad and Kurta, which were allegedly stained with blood were sent for examination to the chemical examiner. In the absence of the scientific report of the chemical examiner, the contention of the prosecution that these articles were stained with blood cannot be believed. It is, therefore, not possible to connect these articles with the occurrence in question. 12. Coming on the medical evidence on record, true it is that it is proved by the evidence of Dr. Ashok Upadhyaya P.W. 5 that as many as four incised wounds, which could have been caused by means of Hansiya were found on the neck of the deceased as anti-mortem injuries. These injuries were sufficient in the ordinary course of nature to cause death and could have been caused on 23-12-1993 at about 12 noon. The doctor has stated during the course of cross-examination that there could be duration (sic) of about 6 hours in his estimation of the death of the deceased. He staled that no injury on the private pans of the deceased was found. When the first information report does not establish the presence of the eye-witnesses on the spot; when ocular evidence of Hari Shankar P.W. 2 and Smt. Ganeshiya P.W. 4 fails to inspire any confidence, simply on the basis of the medical evidence that the deceased could have died because of the anti-mortem injuries found on her person on the date and time of the occurrence suggested by the prosecution the guilt of the ace used-appellant cannot be established. Under the circumstances, we are of the opinion that the prosecution failed to bring home the guilt of the accused-appellant. Our finding of fact is that the finding regarding guilt of the accused-appellant recorded by the Court below is absolutely erroneous and is against the weight of the evidence on record. Under the circumstances, we are of the opinion that the prosecution failed to bring home the guilt of the accused-appellant. Our finding of fact is that the finding regarding guilt of the accused-appellant recorded by the Court below is absolutely erroneous and is against the weight of the evidence on record. The inference drawn by the Court that Mahabir Yadav where the offence in question was committed might be the father of Ram Khilawan is not borne out by any evidence on record. The blood stained and the simply earth recovered by the investigating officer from the scene of occurrence does not appear to have been sent to chemical examiner for examination and report. Under the circumstances the place of occurrence is also not properly fixed. 13. Thus in the result, we find the accused-appellant not guilty on the charge framed against him under Section 302, I.P.C. and acquit him. The appeal is accordingly allowed. It is directed that if the accused-appellant is in jail, he shall be set at liberty forthwith and if on bail, his bail bonds stands cancelled. 14. Let a copy of this judgment along with the record of the case be sent to the Court below for needful compliance forthwith. Appeal allowed.