S. K. AGARWAL, J. ( 1 ) THE present appeal was preferred by the appellants Jittan s/o Sarjoo, Rekha s/o Sarjoo, Chittoo s/o Sarjoo and Lal Chand s/o Shiv Dhar against their conviction under Sec. 148, 302/149 and 201, IPC (passed by IVth Additional Sessions Judge, Azamgarh) and sentences of two years R. 1, life imprisonment and for 4 years rigorous imprisonment respectively under the above-said sections. These sentences were directed to run concurrently. ( 2 ) ONE of the appellant Ashok Kumar alias Bijli was murdered before the case was committed to the Court of Session. His trial, therefore, was abated. During pendency of the appeal three appellants jittan, Rekha and Chittu all sons of Sarjoo have also died. Appeal of Jittan dismissed as abated vide the Courts order dated 17-9-1998. The appeal of Rekha and Chittu had already been dismissed by this Court as abated by its order dated 19-9-1998. Thus in the present appeal we are concerned only with appellant Lal Chand. ( 3 ) IN the present case the facts reveal that Sheo Datt Yadav was initially assaulted on the night of 19-2-1977 by all the five accused persons at about 7. 00 P. M. while he was coming back from village Kolara. He had gone to village Kolara to Sheo Jor Yadav for taking water to irrigate his crops from his tubewell. On his return he was accompanied by Jhillar (PW-2) and Jay Mangal (PW-3 ). Both the above said witnesses had also gone to Sheo Jor Yadav for the same purpose on the same evening. They were told by Sheo Jor Yadav to approach him the next day because he was irrigating his own field on that day. These three persons, deceased and two eyewitnesses, were on their way back. It is alleged that as soon as they reached the Jau field of Jittan all the accused persons named in the FIR emerged out from the field of Ashok alias Bijli and accosted the deceased. Jhillar was having a torch, which he flashed at the relevant moment. It is said that the witnesses had identified the assailants in the light of this torch. The time when the assault was launched upon the deceased was about 8. 30 P. M. The witnesses initially tried to save the deceased but they were challenged by the assailants. Jhillar was having a torch, which he flashed at the relevant moment. It is said that the witnesses had identified the assailants in the light of this torch. The time when the assault was launched upon the deceased was about 8. 30 P. M. The witnesses initially tried to save the deceased but they were challenged by the assailants. They took to their heels and came running to the village of the deceased. Out of five accused persons Ashok and Jittan were armed with spear (Bhalla), Rekha with Pharsa, Chittu and Lal Chand were having lathis. The assailants especially Ashok before launching the assault upon the deceased yelled out that the deceased is the man who had implicated them in false case. The assault immediately followed. These two witnesses communicated the information of the assault to Ram Harsh Yadav and his family members. The other villagers rushed to the scene of occurrence along with Jhillar and Jay Mangal without any loss of time. They reached the Jau Field of Jittan. Some of them were having torches. These witnesses were also armed with lathis. They searched the deceased in the Jau field of Jittan but could not find the presence of their father dead or alive in that field. In the process of search in the field they detected blood, Gamchha (Ext. ka. 3 ). Two broken denture piece of tooth containing 4-5 tooth also found lying. These articles belonged to the deceased. According to PW-1 he having suspected the murder of Sheo Datt Yadav, his son, along with other family members set out in search of the deceased in other fields as they noticed the drops of blood. The search continued until 4. 00 A. M. and ultimately they found trail of blood leading to the railway line from the place of occurrence. On the railway line they found pieces of a body littered in a considerable length and width. One blood stained chaddar (cotton sheet) Ext. Ka4 and one shoe (Ext. Ka2) were also found lying near the littered pieces of the body. These pieces were collected before preparing the FIR by PW-1. He prepared Ext. Ka-1 at the railway lines itself soon after the discovery of the pieces of the body and identified these pieces to belong to the person of Sheo Datta Yadav. Ka4 and one shoe (Ext. Ka2) were also found lying near the littered pieces of the body. These pieces were collected before preparing the FIR by PW-1. He prepared Ext. Ka-1 at the railway lines itself soon after the discovery of the pieces of the body and identified these pieces to belong to the person of Sheo Datta Yadav. After inscribing the report he had sent it through his uncle to the police station. It was registered on 20-2-1977 at 6. 30 A. M. The check report (Ext. Ka. 3) was prepared. The G. D. regarding its entries is Ext. Ka4. The Investigating Officer Tej Pratap (PW-7) proceeded to railway line. He recovered the pieces of the body towards south of the railway track and sealed them in a piece of cloth and put the same in a basket. Inquest memo Ext. Ka5 was prepared by him. Others pertaining to post mortem and sealed bundle containing pieces of the body of the deceased were handed over to the police constable Kalika Singh and Chaukidar to take them to Azamgarh for post mortem examination. The site plan was prepared also on 27-2-1977. it is Ext. Ka. 8. Blood stained earth and simple earth from the field of Balli and Mukkhu Yadav was also recovered. Its memo is Ext. Ka. 10. The broken pieces of teeth from the field of Jittan and blood stained Gamcha from the spot both were also recovered apart from the blood stained earth and simple earth from the above fields. The recovery memo is Ext. Ka. 11. The blood stained spear from the field of Jhillar was also recovered. Its recovery memo is Ext. Ka. 12. Footprints were also recorded on plaster of paris from the field of Mukkhu. Its recovery memo Ext. Ka. 13. Janghiya, Dhoti and Baniyan were also recovered from the spot. He recorded the statement of Jhillar and Bhanwaru Yadav on the same day. Recovery memo of their torches as Ext. Ka 15 was also prepared on 21-2-1977. ( 4 ) POST-MORTEM on the person of the deceased was conducted on 21-2-1977 at 12. 40 P. M. by Dr. T. N. Sinha (PW-5 ). The result of the post mortem examination reveals with regard to following parts of the body from the basket. Half of skull (brain absent) right side above the nose. Half of Rt. arm and Rt. forearm and hand. 40 P. M. by Dr. T. N. Sinha (PW-5 ). The result of the post mortem examination reveals with regard to following parts of the body from the basket. Half of skull (brain absent) right side above the nose. Half of Rt. arm and Rt. forearm and hand. Part of backbone and part of chest bone (ribs in pieces ). So far as head is concerned, membranes were present, brain absent, base of the skull were absent. In the thorax pleura was also absent. Larynx, trachea and bronchi were absent. Right and left lung absent. Pericardium and heart with large intestine were also found absent. So far as abdomen is concerned, walls, peritoneum, buckle cavity, teeth, tongue and pharynx were also absent. Stomach was also absent. Liver, gall bladder, Pancreas, Spleen, Kidney and organs of generation were also absent. The body appears to have been identified by the informant and other family members from photograph of remainant skull. The photographs are on record. ( 5 ) A perusal of the photograph shows that the front of the face was intact and therefore the identification of the person of the deceased was possible. The photograph is marked as Ext. Ka. 42. ( 6 ) IN view of the identification of the body in our opinion death is not challengeable nor it has been challenged. But whether it was murder or suicide still remains to be seen? ( 7 ) IN support of its case the prosecution has examined two eye-witnesses. Jhillar and Jay Mangal. Ram Harsh is son of the victim. He is informant and also the witness of the circumstances such as blood in the field of Jittan and also the blood-stained gamcha, two pieces of tooth denture containing 4-5 teeth and trial of blood at the field of Jittan leading towards railway track. Apart from it he had also noted blood in the field of Jhillar and Mukkhu. In the field of Jhillar blood was noted in large quantity and some articles were also found lying there leading finally to the recoveries of pieces of deceaseds body as well as other articles at railway track. ( 8 ) BHANWAROO (PW-4) is another witness who had provided the evidence with regard to Jittan and Lal Chand taking a bundle wrapped in cotton sheet on a lathi. ( 8 ) BHANWAROO (PW-4) is another witness who had provided the evidence with regard to Jittan and Lal Chand taking a bundle wrapped in cotton sheet on a lathi. Ashok alias Bijli with ballam, Rekha with gandasa and Chittu with lathi were following them. The time when he had seen the accused moving in this manner was about 9. 00 P. M. It was while he was returning after seeing his field to his residence at Nagriwar. The darkness had already interceded. He identified them in torch light. On seeing him the accused persons avoided him and walked briskly away. The other witnesses are formal. PW-5 is Dr. T. N. Sinha, who had conducted the post mortem. PW-6 Kalika Singh had escorted the blood stained pieces of the body of the deceased. Tej Pratap (PW-7) is the Investigating Officer in this case. ( 9 ) THE defence has denied the case of the prosecution and pleaded to be tried. Chittu had stated that Jay Mangal is pairocar and Jhillar is a relation of the informant. The argument raised by the learned counsel for appellants before us is that this is a clear train accident resulting into the death of the victim. Recovered pieces of body do not indicate presence of injuries of the weapons with which five accused persons were armed. The medical evidence also supports the above inference as per the opinion expressed by Medical Officer. The case rests mainly upon the eyewitness account of PW-2 Jhillar and PW-3 Jay Mangal. There are good reasons for rejecting their evidence. The authenticity of accidental death as attributed by the defence is to be examined. In order to assess the above arguments we propose to scrutinise the evidence of witnesses including PW-1 Ram Harsh Yadav, the informant. ( 10 ) PW-1 Ram Harsh is son of the deceased. He was present at his house when the deceased was assaulted by these five accused persons including the appellant at the field of Jittan. Apart from the eye-witness account, the circumstances which are available leading to the inference that the assault was started from the field of Jittan and ultimately culminated at the railway track at a distance of nearly two miles from the place of its initiation are stated accordingly. Apart from the eye-witness account, the circumstances which are available leading to the inference that the assault was started from the field of Jittan and ultimately culminated at the railway track at a distance of nearly two miles from the place of its initiation are stated accordingly. The first circumstance is with regard to recovery of small quantity of blood from the field of Jittan and two small sets of tooth one containing four and other five-six tooth denture and gamcha stained with blood. Other circumstance is trail of blood leading from here in the field of Balli where blood was found in an area of one foot in a large quantity. In the field of Jittan blood was noted only in drops at 2-3 places. Field of Ballis is in distance of 1-1/2 mile from the railway lines. It is only half mile from the place of occurrence where large quantity of blood was found. It is, from the field of Jittan 1-1. 5 miles north east. This field of Balli is is in village Kolapur. Broken pieces Bhalla in the field of Mukkhu was also noticed apart from the broken crop. The above evidence is provided to us by PW-1 alone. It is admitted by PW-1 that P and PW-3 had not accompanied him in the search of the deceased. They had come only to the field of Jittan. Therefore at best their evidence is with regard to the articles recovered from the field of Jittan next morning by the investigating officer. The last piece of circumstance available to us is in the form of the evidence of PW-4 who had seen, at about 9. 00 P. M. , these accused persons carrying away bundle hanging on a lathi wrapped in a sheet of cloth. ( 11 ) SO far as PW-1 is concerned, we had serious doubts about his having gone out for search during night and also his noticing the abovesaid articles during night in the process of search. He has stated that Jhillan and Jai Mangal at about 8. 30 P. M. came running towards his house and told him that his father had gone for taking water to Sheo Jor who told him that he can give water on the next day because he himself is irrigating his own field today. Thereafter these two witnesses along with his father were returning to his house. 30 P. M. came running towards his house and told him that his father had gone for taking water to Sheo Jor who told him that he can give water on the next day because he himself is irrigating his own field today. Thereafter these two witnesses along with his father were returning to his house. They also informed him about the assault by five accused persons with their respective weapons. When they tried to save the deceased they were threatened. They ran back to his village and informed him. If the deceased had gone to take water from the field of Sheo Jor Yadav he must have known this fact from before in our opinion and there was no need for these witnesses to tell him about it. These facts and circumstances clearly indicate that the informant was not knowing anything about his father visiting Sheo Jor for taking water. He had stated to the Investigating Officer that these two witnesses came running to him and informed him about the assault on his father but in the trial court he has made an improvement in this statement inasmuch as now he is stating that they came walking briskly. This improvement has certain purpose behind it. The purpose is that if PW-1 Ram Harsh Yadav had known about the assault of his father by the accused persons at about 8. 30 p. m. and set out in his search immediately. On reaching the field of Jittan he found no trace of his father. It is unacceptable to us that in order to search an area of two miles the witnesses would have taken nearly 7-1/2 hours. This witnesses had admitted that it had taken nearly six hours in reaching the railway track where they finally at 4. 00 p. m. detected strewn pieces of chopped portion of the body of the victim. He had further admitted that the search in the field of Jittan had lasted for 5-6 minutes only and thereafter they had moved along with the trail of blood noticed by them in the process of the search in that field. If they had really followed the trail of blood, they would not have taken about seven hours in reaching the railway line. As stated the trail of blood was noticed at several places up to the railway lines from Jittans field. If they had really followed the trail of blood, they would not have taken about seven hours in reaching the railway line. As stated the trail of blood was noticed at several places up to the railway lines from Jittans field. They reached at the place of occurrence guided by the trail of blood as well as broken crops. It would not have taken such a long time in reaching railway lines where the pieces of body of the deceased were lying littered, if the search would have commenced during night and the trial of blood was noticed during the search in the night. ( 12 ) IT is admitted fact that PW-3 had received information from these two witnesses at 8. 30 p. m. and within 1 to 2 minutes these witnesses along with the family members had reached with torches and lathis at the field of Jittan. There is yet another circumstance, which goes against the presence of Jhillar and Jay Mangal who had not engaged themselves in the subsequent search. The evidence shows that the footprints were also recorded by the police but no evidence with regard to those foot prints being compared with the footmarks of any of the accused persons is available from the record. The deceased was tried for offences of robbery and theft though PW-1 states that he was acquitted. A suggestion was given to the witness that his father was involved in the commission of dacoity, theft and murder of one Yusuf. In that connection he was keeping himself away from the village. It is admitted that his father was involved along with Jittan accused in a murder case. No motive is alleged by him for the murder of his father. Jittan, Rekha and Chittu are brothers. Lal Chand does not have any affinity with them. A bald allegation that he belonged to the group of these persons cannot be accepted. In the absence of any corroboration from the evidence or circumstances we are not prepared to accept the statement of this witness. The statement of this witness is that only 5-6 persons accompanied him in the search during night. He further admitted that 50-60 persons had collected at the field of Jittan. In the absence of any corroboration from the evidence or circumstances we are not prepared to accept the statement of this witness. The statement of this witness is that only 5-6 persons accompanied him in the search during night. He further admitted that 50-60 persons had collected at the field of Jittan. Later on he admitted that in the search of the dead body only 4-5 persons had moved with the trail of the blood and rest of the people were searching in other direction. It is also highly improbable. If the trail of the blood and broken crops were leading to the place of culmination of the incident it is very difficult to accept that the other persons had set out in different directions to search the victim. It is probable from the facts and circumstances that the information of the death or lying of dead body in the village was received some time during morning hours and thereafter the entire process of preparation of the FIR and registration of the case had been made in consultation with the police. Neither in the FIR nor in the statement recorded under Section 161 Cr. P. C. PW-1 had disclosed about the presence of articles from the field of Jittan or broken piece of Bhalla in that field. He did not offer any explanation for the above omission. He had only told the Investigating Officer that the ballam was seen by him in the field of Jittan. He had denied the statement to the Investigating Officer that when he reached the railway track he had seen that his fathers body was lying cut into multiple pieces which he had collected at one place. The circumstances render the testimony of PW-1 wholly unreliable as being fully anguish, ingenues and motivated. He has been tutored to state the above facts. The probability that the information of pieces of body lying at the railway line reached the village in the morning and he had gone there due to curiosity and identified the dead body by its face that the recovered dead body was of his father cannot be culminated in the present case. If he had learnt it or informed by the witnesses why it took 7 hours to reach railway track. The number of people from different purwa collected there in the night itself is not trustworthy. If he had learnt it or informed by the witnesses why it took 7 hours to reach railway track. The number of people from different purwa collected there in the night itself is not trustworthy. None has been produced from amongst them. ( 13 ) EVEN the F. I. R. also appears not to have been lodged at the time alleged. According to the PW. 1 the Investigating Officer reached the spot at 7. 30 a. m. but the inquest memo shows the time of FIR to be 6. 30 and the time of inquest 8. 30 where as the place of the occurrence i. e. railway line from the police station is shown 5 kms. It was concluded at 10. 00 a. m. If any person was led on a track, its cutting into different pieces by a passing train appears highly improbable. Such a situation would arise only while the person was crossing the track and train approached him suddenly or if he was sitting in between the track only in these circumstances the body can be shattered into smithereens by the passing train. For these reasons also, the evidence of the witnesses i. e. Investigating Officer and PW-1 on this point is belied. None of the papers sent for post mortem along with the body bear any signature of the doctor who conducted the post mortem. This also indicates that the papers in all probability were not sent to the doctor before the conclusion of the post mortem. ( 14 ) ACCORDING to the statement of PW-1 after 10 Oclock in the night these two witnesses had not met him nor they had participated in the search of the deceased. He has further admitted that it was still dark when the report was transcribed on the railway track and it was transcribed in the light of torch. We are not prepared to accept his statement that this report was transcribed by him without any assistance. It was his first report and it was prepared by him only in a single attempt within 10-15 minutes. He has claimed that he was in possession of the pen at the spot and his uncle had brought the paper from somewhere. The residential portion of the village is at a considerable distance from the place of occurrence i. e. railway track. He has claimed that he was in possession of the pen at the spot and his uncle had brought the paper from somewhere. The residential portion of the village is at a considerable distance from the place of occurrence i. e. railway track. The report was sent to police station through his uncle Ram Janam. Ram Janam has not been examined to corroborate him. ( 15 ) NOW coming to the evidence of Jhilar (PW-2) and Bhanwaroo (PW-3) we find that they had a common cause for their presence with the deceased. They had reached the tubewell of Sheo Jor before the deceased. Both these witnesses do not say that they had also asked for the water. According to the Jhillar when they had reached Sheo Datt was fast approaching. On demanding water by Sheo Datt, Sheo Jor asked him to take it on the next day as he was irrigating his own field. He further stated when they both were about to go to their village the deceased requested them to drop him to his house. They had agreed to accompany him on his request up to his house. No explanation is offered that why Sheo Datt had asked to drop him at his house. He further stated that in the morning they had learnt that dead body of Sheo Datt is lying near the railway line but he had not gone there. He had gone to the field of Jittan where the Investigating Officer recorded his statement. Memo of his torch was also prepared. He has admitted that he and Jai Mangal are Yaduvanshi Ahir and Jay Mangal is not related to him but he calls him Baba on account of village relationship. He has deliberately avoided to give out the name of the grand father of Jay Mangal. It has been suggested to him that they are also related. He appears to be related to Sheo Datt. He has clearly admitted that road leading to his village is different. They were proceeding on that road. They went on their road and Sheo Datt was moving on another road that goes to his house. Road leading to the house of Sheo Datt goes south west and that leads to his village runs towards west. The village of Sheo Datt is at a distance of 4-5 furlongs from the tubewell. His village is at a distance of 7-8 furlongs. Road leading to the house of Sheo Datt goes south west and that leads to his village runs towards west. The village of Sheo Datt is at a distance of 4-5 furlongs from the tubewell. His village is at a distance of 7-8 furlongs. He has further admitted that he had started for tubewell of Sheo Jor from the village after sun set. This witness in his statement has stated that when Sheo Datt met them at the tubewell of Sheo Jor sun was about to set. Thus the statement of this witness on this aspect is contradictory. According to him soon after the assault was launched, they ran away. From his evidence it is apparent that he had not visited Sheo Jor at all and is supporting the prosecution due to his relationship with deceased. ( 16 ) PW-3 has admitted categorically that night was dark. This witness had stated that this is a busy road. He had stated that while going to the house of Ram Harsh he met none on the road. He further contradicted PW-1 that there were several persons present at his house whereas this witness has categorically stated that except the above witnesses at the door of Ram Harsh no one was present. 30-35 persons came to the field to Jittan. It has taken them 10-15 minutes to reach this field from the house of Ram Harsh. When they came back to the field of Jittan they do not find any body there. In the search nothing was known about the deceased and therefore these two witnesses retired to their village and in the morning they came near the dead body of the deceased which was lying at the railway track. He and Jay Mangal were not chased by the assailants. He had also contradicted the statement of PW-1 on the point of search in the field of Jittan. According to him the search in the field of Jittan lasted 30 minutes. He had also contradicted Ram Harsh (PW-1) that within an hour these two witnesses met him in between the search at another place. None of these witnesses informed about the incident to any other person in their village. On being called by Daroga he had gone to the spot with the torch. Although in his statement under Section 161 Cr. P. C. he stated that the torch was at his house. None of these witnesses informed about the incident to any other person in their village. On being called by Daroga he had gone to the spot with the torch. Although in his statement under Section 161 Cr. P. C. he stated that the torch was at his house. His statement further completely demolishes the statement of PW-1 and PW-2. The case set up by PW-1 and PW-2 is that they were told to have water next day but this witness has stated that Sheo Jor had told him that the water will go to his field tomorrow also and they can have water thereafter. He had further stated one more fact that they sat down there and were warming themselves in the bonfire, that was burning at the tubewell of Sheo Jor and were also engaged in talking. Sheo Datt asked them to accompany him up to some distance as he was alone. No such statement was made by other witness PW_2. His case was that the deceased simply asked them to drop him at his house. Both the witnesses were armed with lathies and Jhillar was having a torch. He had stated that the crop was crumpled in the field of Jittan and along with him and Jhillar many people of the village were engaged in the search of the deceased. They had reached Sarvadinpur Mauje and from there he had gone back to his house. According to him they continued their stay at Sheo Jors tubewell for about one and half hour. This is contradictory to the statement of PW-2. According to him, they had stayed only for a while. This witness is about 65 years in age. He had admitted that for the last one year his eye sight has weakened but he can identify his villagers and can walk. He can not identify the faces immediately is also admitted to him. He could recognise a person from only close quarters. The sight does not fall to such an extent in such a short time. According to him Sheo Datt had fallen after receiving injuries and they ran away to their house. If this is a fact, then these witnesses are not stating the truth and their participation in search also a completed lie. The sight does not fall to such an extent in such a short time. According to him Sheo Datt had fallen after receiving injuries and they ran away to their house. If this is a fact, then these witnesses are not stating the truth and their participation in search also a completed lie. He admitted that no body was attracted to the seat of occurrence on their cries nor any one of them made any attempt to save him. The assailants did not chase them. After that he was read over the statement under Section 161 Cr. P. C. wherein he had stated that the assailants had also chased them to assault. He had admitted that this statement was given by him. He again stated that only two of the five had chased them. Others were beating Sheo Datt. This statement appears in total contrast to the statement of PW-2. Although many persons were present at their doors but none had asked them why they are crying when they were going to the house of PW-1. He then stated that no alarm was raised while running. Probably he realised his earlier mistake. This is also contrary to the statements of both the PW-1 and PW-2. According to him in the field of Jittan blood was present in an area of 2 hands (sic ). This is contrary to the statement of PW-1 and PW-2. He admitted that he had not gone to the railway lines in the morning. He was read over the statement recorded under Section 161 Cr. P. C. wherein he had stated that seeing trail of the blood he had gone upon to the railway lines where he had noticed the pieces of the body. He denied that any such statement was given by him. He had admitted that when he reached the railways line the pieces were already collected by the witnesses. Till then police had not reached there. At that time Jhillar was also not present. He remained there only for half hour and thereafter returned back. His statement was never recorded by the Investigating Officer. Although earlier he had stated that his statement was recorded. All this very closely shows that he is dwelling upon his imagination. He clearly appears to us a completely got up witness. Thus no reliance can be placed on the statement of these two eye witnesses. His statement was never recorded by the Investigating Officer. Although earlier he had stated that his statement was recorded. All this very closely shows that he is dwelling upon his imagination. He clearly appears to us a completely got up witness. Thus no reliance can be placed on the statement of these two eye witnesses. For the reasons discussed above even their presence at the tubewell of Sheo Jor at the relevant time and date is not proved at all. There are serious contradictions in their statements to the effect that Sheo Jor had told Sheo Datt to take water on the next day and that he will use water to irrigate his own crop up to next day. It is not understandable why Sheo Jor Yadav was not examined to corroborate this fact. These two witnesses from the manner their denials appear to be related to Sheo Datt. For this reason they had deposed against the accused persons. ( 17 ) NO motive for this assault by the accused persons upon the deceased was disclosed by prosecution. There is no statement of any independent witness that these witnesses were seen coming towards the village at 8. 30 or 9. 00 p. m. ( 18 ) PW-4 is wholly a got up witness. He claimed that he has (seen) (sic?) these accused persons carrying a bundle on a lathi. He had admitted that he had gone to watch his field after sun set. No body goes to the field after sun set and if any one goes to watch, he does not return during night hours. His field is 10 bighas from the pokhari. He had claimed that Jittan and others were carrying a bundle with the help of a stick from the north of the Pokhari (pond ). He is a resident of Nagriwar to which the other witnesses PW-2 and 3 also belong. The tubewell of Sheo Jor is according to him 3 furlongs from this pond. He stated that the accused persons were moving towards railway lines. According to him blood was trickling down from the bundle. He stated that he did not know whether the clothes of the accused persons or not were stained with blood. He had not heard any alarm of marpit during his stay at his field. No other sound was also heard by him. He had not asked any question to accused. According to him blood was trickling down from the bundle. He stated that he did not know whether the clothes of the accused persons or not were stained with blood. He had not heard any alarm of marpit during his stay at his field. No other sound was also heard by him. He had not asked any question to accused. He did not find any person watching their field at this hour. He had also not given information to the Chaukidar about these persons carrying bundle from which blood was trickling down. He was summoned by the Investigating Officer around 11. 00 a. m. He did not inform any body in his village about the accused persons carrying a bundle. He claimed that he had reached at the railway lines at about 11. 00 a. m. No one is called before him by the Investigating Officer. He then claimed that he had not gone to railway line but he had gone to the field of Jittan. The evidence of this witness for the reason discussed above is wholly untrust- worthy. Complete silence maintained by PWs-2, 3 and 4 is wholly beyond understanding. They spoke only before Investigating Officer. ( 19 ) PW-5 Dr. Tandon had admitted that he found no injury upon the pieces of the body sent to him for post-mortem contrary to what was noted in the inquest memo. He has not noted this fact in the post mortem. Thus his evidence does not help the prosecution in any manner to prove that the victim met any homicidal death. On the other hand it leads to the inference that the death of Sheo Datt may be accidental. ( 20 ) THE Investigating Officer PW-7 had admitted that during investigation the opinion of panchas was that it is case of murder but in what manner it had been committed was not disclosed by them. If the information of assault was received by PW-1 Ram Harsh during a search with many villagers was organised this must not be the state of affairs. Statement of Ram Harsh was recorded at the police station is contradicted by PW-1. He stated that his statement was recorded at the spot by the Investigating Officer. We are not prepared to accept the testimony of PW-7 as stated in examination in chief. Statement of Ram Harsh was recorded at the police station is contradicted by PW-1. He stated that his statement was recorded at the spot by the Investigating Officer. We are not prepared to accept the testimony of PW-7 as stated in examination in chief. He came to know from the people that witness PW-4 is knowing some fact with regard to the present incident. This part of the statement of the Investigating Officer is falsified from the statement of PW-4. He had admitted that upto the distance of 100 paces the track contained pebbles where the dead body was lying into pieces and it was stained with blood. He had also admitted that he had not noted the places from where pieces of body was collected by him nor the place where they were kept. The evidence of PW-1 and PW-2 shows that the pieces were already collected at one place when the Investigating Officer reached there. He was unable to give out the time of reaching of Ram Harsh at the police station. He admitted that he had not taken blood stained crop into his possession. ( 21 ) THE discussion made above leads us to the inference that none of the witnesses had seen the incident during night and the evidence of PWs-2 and 3 for the reasons discussed earlier is not acceptable to us. They appear to us got up witnesses. They are deposing on account of their proximity to the deceased. No explanation is given why no independent witness of search during night was not examined. The absence of independent witnesses of the village further creates serious doubt even about the story of search. Jittan was an accused in a murder case with the deceased. It has not been brought in evidence of PW-1 that any animosity developed between Jittan on the one hand and the deceased on the other. He was not examined to prove the recoveries from his field. ( 22 ) FOR the reason discussed above we are of the opinion that appeal of appellant Lal Chand, who is the lone living accused, is to be allowed. ( 23 ) IN the result this appeal is allowed. His conviction and sentences are set aside. He is on bail. He need not surrender. His bail bond is cancelled and sureties discharged. Appeal allowed.