M. C. JAIN, J. ( 1 ) BOTH these appeals are directed against the judgment and order dated 14-4-1980 passed by Sri B. B. Agarwal, the then IInd Additional Session Judge, Varanasi in Sessions Trial No. 19 of 1979. We propose to decide both these appeals by this common judgment, treating Criminal Appeal No. 857 of 1980 as the leading appeal. The appellants in Criminal Appeal No. 857 of 1980 are Shyamji Pandey, Baijnath and Vijai. The appellants in another Criminal Appeal No. 869 of 1980 are Bhaiya Lal, Mithai alias Mithau, Ganesh alias Ganesu, Gopal alias Gopali and Chander. All of them have been convicted under Sec. 302 I. P. C. read with Sec. 149 I. P. C. and sentenced to life imprisonment. Bhaiya Lal, Mithai alias Mithau, Ganesh alias Ganesu and Gopal alias Gopali have further been convicted under Sec. 148 I. P. C. and sentenced to two years rigorous imprisonment. Baijnath, Shyamji Pandey, Chander and Vijay have further been convicted under Sec. 147 I. P. C. and sentenced to one year rigorous imprisonment each. ( 2 ) TO begin with broad essentials of the prosecution case may be set forth. The victim and the deceased of the present incident was Bachanu. The incident took place on 22-6-1978 at Teliya Nala Ghat in Mohalla Kayasth Tola, Police Station Adampur, Varanasi at about 12 O clock in the noon. The report was lodged the same day at 1. 05 P. M. by Ashok Kumar PW-1 son of the deceased. Bachanu deceased used to do the business of sand. The accused Baijanath and others were also engaged in the same business. There was business rivarly between the two parties and even proceedings under Sec. 107/116 Cr. P. C. had been initiated between them prior to this incident. Earlier to the present to the present incident, the accused Mithai and others had assaulted Raj Kumar, brother of the complainant Ashok Kumar (son of the deceased ). These two sides were on logger heads and their relations were strained. On the day of the incident at about 12 O clock in the noon some altercation and exchange of hot words took place between the wife of the deceased and mother of accused Bhaiya Lal over the question of keeping of the sand. The deceased Bachanu intervened and separated them, averting a clash. On the day of the incident at about 12 O clock in the noon some altercation and exchange of hot words took place between the wife of the deceased and mother of accused Bhaiya Lal over the question of keeping of the sand. The deceased Bachanu intervened and separated them, averting a clash. Immediately therefore, all the eight accused persons who were either relations or friends constituting one party formed an unlawful assembly with the common object of committing the murder of Bachanu. Accused Bhaiya Lal was holding a Bhujali; Mithai was armed with a knife; Ganesh was holding Danwa; Gopal was having a Gandasa and Shyamji Pandey and Baijnath had lathis. All these five accused persons with their weapons and Chander and Vijay with brick-bats and stone-bandasts assaulted Bachanu. As a result, Bachanu fell down and became unconsious. The incident was witnessed by Prahlad, Balloo, Ramji and others Ashok Kumar PW-1 took his injured father Bachanu on the Thela of Ramji PW 2 to Kabirchaura Hospital where he died at 12. 35 P. M. It was thereafter that he went to the Police Station and lodged the first information report on the basis of which a case was registered. Investigationwas taken up by Ram Adhar Yadav PW 7 but the inquest report of the deceased was prepared in the hospital Mahabal Singh PW8. ( 3 ) THE post-mortem over the dead body of the deceased was conducted by Dr. B. V. Subramaniyam PW 9 on 23-6-1978 at 2 P. M. The deceased was aged about 45 years. The following ante-mortem injuries were found on his person:1. Lacerated wound 1cm x o. 5cm above tragus of right ear. 2. Abraded contusion 7. 5cm x 2. 5cm on the right cheek. 3. Contusion 7. 5cm x 4cm at the root of the nose. ( 4 ) MULTIPLE abraded contusion 15cm x 8cm in front of upper part of left chest and adjacent shoulder. ( 5 ) LACERATED wound 5cm x 1cm x 1. 5cm middle of outer aspect of the left arm muscle exposed. ( 6 ) CONTUSION 7cm x 5cm over the front of lower 3rd of left arm. (Reddish ). ( 7 ) CUT 7cm x 1cm bone exposed on the left index finger upward to the dorsum of the left hand, tapering on the back of the hand. 5cm middle of outer aspect of the left arm muscle exposed. ( 6 ) CONTUSION 7cm x 5cm over the front of lower 3rd of left arm. (Reddish ). ( 7 ) CUT 7cm x 1cm bone exposed on the left index finger upward to the dorsum of the left hand, tapering on the back of the hand. ( 8 ) CUT outer and back of left leg 15cm below the knee tapering lower down 12cm x 4cm calf muscles cut. ( 9 ) CUT 4cm x 1cm x5cm, 6cm below the above injury No. 8 tapering below. ( 10 ) CUT 7cm x 2cm x 75cm outer aspect of left ankle, bone exposed, tapering at the outer and lower part. ( 11 ) CUT 9cm x 2. 5cm x 2cm lower end of fibular bone cut at two places 5cm apart over the outer aspect of left ankle. Two separate cut ends of beginning and tapering are seen on the front and back aspect of knee respectively. Cut obliquely placed taper at lower level. ( 12 ) CUT 2cm below injury No. 11 on the outer aspect of left foot and dorsum 10 cm x 4cm x 1cm, bones exposed with two cuts beginning and ends 1cm apart and tapering at lower and outer aspect. ( 13 ) CONTUSION 6cm x 2cm front of neck above suprasternal notch-reddish. ( 14 ) CUT 7cm x 7. 5 x 5cm outer aspect of middle of right leg tapering above. ( 15 ) CUT 3cm below No. 14, 2. 5cm x. 75cm x. 5cm ( 16 ) CUT 4. 5cm x. 5cm bones cut over the root of right great 2nd and 3rd toes tapering outwards. ( 17 ) DEPRESSED comminuted fracture 10cm x 8cm right from temporo parietal are of skull under injury No. 1, membrane underneath torn extradural, subdural subarechnoid haemorrhage underneath and contusion of brain. ( 18 ) IN continuation with No. 17 fracture of the middle fossa and front fossa of the base of skull extending from right to left. 4. Ante-mortem injuries No. 1, 2, 3, 4, 5, 6, 13, 17 and 18 had been caused by blunt weapons whereas the rest had been caused by sharp edged weapons, which could include knife, Bhujali or Gandasa, Death had occurred due to shock and haemorrhage owing to multiple ante-mortem injuries sustained by the deceased. 5. 4. Ante-mortem injuries No. 1, 2, 3, 4, 5, 6, 13, 17 and 18 had been caused by blunt weapons whereas the rest had been caused by sharp edged weapons, which could include knife, Bhujali or Gandasa, Death had occurred due to shock and haemorrhage owing to multiple ante-mortem injuries sustained by the deceased. 5. On the conclusion of the investigation all the eight accused persons were booked for trial. The prosecution produced nine witnesses besides relying on documentary evidence. The defence was of total denial. The deceased was said to be a big Goonda (bad character) and notorious person against whom 42-45 persons including the accused Shyamji Pandey, Baijnath etc. had made an application for taking action against him under the Goondas Act. The enmity between the deceased and the accused Baijnath, Mithai, Ganesh, Vijay, Bhaiya Lal and Gopal was an admitted fact. The accused Chander claimed that he had been falsely implicated as Baijnath was his maternal grandfather. According to him, he used to ply boat with his father at Dashaswamedh Ghat. The accused Shyamji Pandey claimed that he had been falsely implicated as the meeting of 40-45 persons had been held at his house for making an application against Bachanu to take action against him under the Goondas Act. He had also subscribed to such an application. The accused persons did not tender any evidence in defence but filed few documents. The trial culminated into the impugned judgment and order. 6. It would also be worthwhile to state here that all the accused excepting Shyamji Pandey are inter se closely related. Baijnath, Mithai and Ganesh are real brothers; Gopal and Bhaiya Lal are the sons of Baijnath;vijay is the son of Mithai and Baijnath is maternal grandfather of Chander. 7. We have heard Sri A. D. Giri, learned counsel for the appellants in support of the appeal and learned A. G. A. in opposition. The record of the case has also been carefully examined by us. 8. We intend to deal with the different aspects of the case in the succeeding discussion. It admits of no doubt that the deceased Bachanu was the victim of violence. A number of injuries had been inflicted on his person of blunt and sharp edged weapons. The record of the case has also been carefully examined by us. 8. We intend to deal with the different aspects of the case in the succeeding discussion. It admits of no doubt that the deceased Bachanu was the victim of violence. A number of injuries had been inflicted on his person of blunt and sharp edged weapons. The crucial question for determination is whether it is proved by the evidence adduced on record that the assailants culprits were the present accused appellants or some of them. 9. It has first been pointed out that the origin or start of the incident is lost in obscurity. The most important witness in this behalf was the wife of the deceased and mother of Ashok Kumar PW 1. It would be recalled that as per the prosecution case there had been an altercation of hot words between her and the wife of the accused Baijnath over the keeping of sand and the deceased Bachanu had come out of his house and had separated them. It was immediately thereafter that the accused persons allegedly came over there and pounced upon him, causing injuries by their weapons brick bats and stone-ballasts. Indeed, the wife of the deceased could be the best person to make a statement in this behalf. It is not understandable as to why the prosecution withheld such an important witness who was the own wife of the deceased. We also find that the prosecution witnesses have given varied statements as to the start of the origin. Kallu PW 3 has stated that Bachanu came out of his house after taking his food, went to the road and took a betel whereafter he returned to the Pipal tree. It was then that there started exchange of hot words between the two ladies (wife of the deceased and wife of the accused Baijnath ). According to him, Bachanu had not intervened and quarrel between the two ladies subsided of its own. Immediately thereafter, the accused persons started assaulting Bachanu with their weapons/brick bats and stone ballasts. Prahlad Prasad PW 5 claims he was at his shop near Tiriya Nala. At the relevant time Bachanus wife was also there. According to him, all the accused persons appeared there and started assaulting Bachanu. Immediately thereafter, the accused persons started assaulting Bachanu with their weapons/brick bats and stone ballasts. Prahlad Prasad PW 5 claims he was at his shop near Tiriya Nala. At the relevant time Bachanus wife was also there. According to him, all the accused persons appeared there and started assaulting Bachanu. It is obvious that he does not speak of the exchange of any hot words between Bachanus wife and the wife of the accused Baijnath. If it were a fact that he was keeping the shop there, he would have witnessed the exchange of hot words between the two ladies and the separation of the two by Bachanu, immediately whereafter the alleged incident took place as per the prosecution case. To come to the point, the testimony of eye witness is not consistent as to the start of the incident and there is yawning gap in what they have stated in this behalf. It may be stated at the risk of repetition that the fact remains that the prosecution has withheld the most important witness, viz. Bachanus wife for unknown reasons. 10. Secondly, there was no such immediate motive on the part of accused persons for taking it into their heads to murder Bachanu. Of course, the relations between the two sides were strained from before, but nothing of consequence had happened immediately before this incident which could actuate the accused persons to commit this crime. 11. Thirdly, it is noted that the male members of all the three real brothers Baijnath, Mathai, Ganesh and their sons were roped in together with Baijnaths maternal grandson Chander and one Shyamji Pandey. It has come in the testimony of Ashok Kumar PW 1 that Baijnath, Mithai and Ganesh had their separate houses with separate business. He also admitted that Chander used to live at Meer Ghat and used to ply a boat at Dashaswamedh Ghat. It also came to be admitted by him that the accused Shyamji Pandey had his foodgrains business and he had nothing to do with the sand business. He also admitted that a meeting of 40 residents of locality had been held at the house of Shyamji Pandey as a consequence of which an application had been made to higher authorities to book his father under Goondas Act. He also admitted that a meeting of 40 residents of locality had been held at the house of Shyamji Pandey as a consequence of which an application had been made to higher authorities to book his father under Goondas Act. It is also his statement that after his father had separated his mother and wife of accused Baijnath, his mother had gone inside his house and it was after about 1or 11/2 minutes that the accused persons had come up and assaulted his father. It does not stand to reason that almost instantaneously subsequent to the separation of two ladies by Bachanu, the eight accusedappellants would have collected at the spot from different places to assault him (Bachanu ). The impression that we form is that the prosecution has tried to conceal the truth and has presented a distorted picture before the Court. 12. On carefully examining the evidence of the eye witnesses, we find it difficult to accept their testimonial assertions as the same suffer from inherent weaknesses. Ashok Kumar PW 1 who is the son of the deceased claims himself to be eye witness. According to him, he had taken his injured father on Thela of Ramji PW 2 to Kabirchaura hospital. Ramji had allegedly accompanied him to the hospital and thereafter to the Police Station. It is also his version that he had tarried at the Police Station but Ramji accompanied the Investigating Officer to the spot. We, however, find that as per the memo sent from the hospital to Police Station Kotwali, it was one Prahlad who had admitted Bachanu in the hospital. In case Ashok Kumar PW1 had actually taken his father to the hospital and had admitted him there, in the natural course, his name would have found place in the memo as the person admitting Bachanu in the hospital. Prahlad Prasad PW5 son of Chhangur had been examined as an eye witness. He does not say that he had taken he had taken Bachanu to the hospital. The statement of the Investigating Officer Ram Adhar Yadav PW7 is also to the effect that Prahlad son of Chhangur had stated to him under Sec. 161 Cr. P. C. that he had taken Bachanu to the hospital. It is, therefore, not explained as to who actually Bachanu in the hospital. The statement of the Investigating Officer Ram Adhar Yadav PW7 is also to the effect that Prahlad son of Chhangur had stated to him under Sec. 161 Cr. P. C. that he had taken Bachanu to the hospital. It is, therefore, not explained as to who actually Bachanu in the hospital. his admission in the hopital by Ashok Kumar PW1 is belied by the memo sent by the hospital to the Police Station Kotwali and as a resultant effect the presence of Ashok kumar PW1 at the spot at the time of incident is also rendered doubtful. 13. The testimony of Ramji PW2 is also poles apart. He claims to have accompanied Ashok Kumar PW1 in carrying Bachanu to hospital. Thereafter he went to the Police Station with him, though the statement of Investigating Officer Ram Adhar Yadav PW 7 is that he was present at the police Station when the first information report was lodged, and that Ramji had come to the Police Station with the informant. Ramji PW2 has stated that he never met Daroga and that his statement was never recorded by the Investigating Officer. What he has stated is incapable of reconciliation. According to him, he had kept outside the hospital and it was Ashok who had produced Bachanu before the Doctor in the hospital. He, however, added that Ashok had then taken Bachanu from the hospital to the Police Station. In the next breath he contradicted himself by saying that Bachanu had not been taken to the Police Station from the hospital. Then he stated that Bachanu remained outside the hospital only. It cannot be comprehended as to how could he be produced before the Doctor in the hospital if he (Bachanu) remained only outside the hospital. The witness has also stated that from the hospital he had straightaway gone to his house as he had some work. The statement of Ram Adhar Yadav PW7 is that from the Police Station to the spot he had gone all alone. He emphatically stated that Ramji had not accompanied him from the Police Station to the spot. It contradicts Ashok Kumar PW1 who has stated that from the Police Station Ramji had accompanied the Investigating Officer to the spot. The statement of Ram Adhar Yadav PW7 is that from the Police Station to the spot he had gone all alone. He emphatically stated that Ramji had not accompanied him from the Police Station to the spot. It contradicts Ashok Kumar PW1 who has stated that from the Police Station Ramji had accompanied the Investigating Officer to the spot. As we pointed out earlier, the statement of Ramji PW2 itself is wholly irreconcilable which gives an inkling as if he was not at all present on the spot. Hospital or Police Station and he simply made statement on the basis of his imagination. It seems to be for this reason that there are glaring inconsistencies in what he has stated. His statement of such a nature can not led anywhere. 14. Kallu PW3, on his own showing, is a chance witness. He admitted in the opening part of his cross-examination that his house was at a distance of two furlongs from the place of occurrence. Moreover, it would be recalled that the story of betel taking and that nobody had intervened in the quarrel of the two ladies is also in conflict with the basic prosecution case and the testimony of other witnesses. He also stated in his cross examination that the Investigating Officer had recorded his statement in the hospital after two days and at that time several other persons had come to the hospital. To quote his own words he stated: ( 19 ) LET a copy of this judgment along with the record of the case be immediately sent to the Court below for incorporating necessary entries in the concerned register under intimation to this Court within two months positively. Appeal allowed. .