BILAL NAZKI, J. ( 1 ) ACCUSED Nos. 1 to 3 in S. C. No. 71 of 1999 have filed this appeal seeking setting aside of the judgment of the trial Court convicting and sentencing them. A1 was found guilty under Section 302 ipc and sentenced to life imprisonment. He was also fined Rs. 500/ -. A2 and A3 were found guilty for the offence under section 302 read with 34 IPC. They were also sentenced to life imprisonment and fined Rs. 500/ -. In default of payment of fine they have to undergo simple imprisonment for two months each. ( 2 ) AFTER the charges were framed the accused pleaded not guilty and claimed to be tried. Prosecution examined 12 witnesses and exhibited 28 documents. For accused no evidence was led, however an exhibit was marked from a portion of the statement of P. W. I recorded under Section 161 Cr. P. C. ( 3 ) BRIEFLY the prosecution presented the case that, on 3-7-1998 at about 7. 00 or 8. 00 p. m. , there was a quarrel between the accused and PW4 in front of the house of the deceased in Harijana peta. The deceased came out of his house and asked the accused persons about the incident but they attacked him with Pota Kathi. A1 and a3 caught hold of the deceased while Al hacked the deceased with Pota Kathi and caused serious injuries to him. The accused thereafter left the place of occurrence with the weapon in their hands. The wife of the deceased witnessed the incident and went to P. W. I and made a statement about the incident before him. The Village administrative Officer (P. W. 1) recorded the statement of the wife of the deceased and sent the same to the police station. Police registered a case on the basis of report given by P. W. I, investigated the matter and filed the charge sheet. The body was also sent for post-mortem. The Doctor (P. W. 9) gave a certificate of post-mortem being Ex. P25 on 4-7-1998. ( 4 ) P. W. 1 was Village Administrative Officer at relevant point of time of ramachandrapuram village. He stated that on 3-7-1998 at about 8. 15 p. m. one nandikolla Mangamma informed him that her husband was killed. The Doctor (P. W. 9) gave a certificate of post-mortem being Ex. P25 on 4-7-1998. ( 4 ) P. W. 1 was Village Administrative Officer at relevant point of time of ramachandrapuram village. He stated that on 3-7-1998 at about 8. 15 p. m. one nandikolla Mangamma informed him that her husband was killed. He proceeded to her house and found the dead body of her late husband namely Nandikolla china Bullayya lying near Rayudu Ramudu house on the road. He observed injuries on the dead body. He also recorded the statement of the wife of the deceased who told him that the accused had killed her husband by hacking with a knife. He exhibited Ex. P1 as the statement given by the wife of the deceased and recorded by him. He also stated that the lady had affixed her LTI mark on the statement. He posted a guard near the dead body of the deceased and then sent a written report ex. P2 to the S. H. O, Seethanagaram police station along with Ex-Pi. He identified his signature on Ex-P2. On 4-7-1998 at 8. 00 a. m. police visited the scene of occurrence. He was sent for by the police. C. I, S. I. and police constables in his presence observed the scene of occurrence. He drafted the observation report under Ex. P3. Police also seized blood stained earth and control earth under Ex. P3 which was drafted by him. Ex. P3 report was signed by him, C. I. and another person by name Kalagara venkataramana Rao. At 9. 00 a. m. , on the same day inquest was held over the dead body by the C. I of Police. He drafted the inquest report under Ex. P4. L. W. 16 venkataramana, Rayudu Ratnaraju, wife of the deceased Mangamma, brother of the deceased Aravala (L. W. 3) and other relatives of the deceased were present. They observed 7 or 8 stab injuries on the body of the deceased. The injuries were observed on the forehead, left neck, cheek, left shoulder, back side and other parts of the body. The opinion of the panchayatdars was that the death had been caused due to hacking. There was one striped lungi, one towel and blood waist thread tied with one key and two pins. Inquest was concluded at 12-00 noon. The injuries were observed on the forehead, left neck, cheek, left shoulder, back side and other parts of the body. The opinion of the panchayatdars was that the death had been caused due to hacking. There was one striped lungi, one towel and blood waist thread tied with one key and two pins. Inquest was concluded at 12-00 noon. C. I got photographed the scene of occurrence as well as the body of the deceased. M. O. I was control earth, M. O. 2 was blood stained earth, M. O. 3 to M. O. 5 were lungi, towel and waist thread with keys and pins. Police sent the dead body for autopsy. Police examined him, the wife of the deceased, his brother and others and recorded their statements. On 12-7-1998 while he was in his office, he received a message from S. I. and he proceeded to mangalapudi-Vallampeta bus stop where the s. I arrested the accused at 3. 00 p. m. , under a cover of mahajar Ex. P3, which was also drafted by him. The S. I arrested A1 to A3 and at the instance of Al the S. I recovered pota Kathi at his house under Ex. P6. Ex. P6 was also drafted by him. Along with him l. W. 16 Venkatarama Rao was present. He was also present at the time of arrest and seizure of knife. M. O. 6 was the knife recovered at the instance of Al. The motive for the crime as stated to him by the wife of deceased was only the quarrel between l. W. 4 and the accused and when the deceased went and separated them the accused killed the deceased. In his cross- examination the witness stated that he got drafted the statement given by the wife of the deceased thereafter he prepared his report basing on the statement given to him by the wife of the deceased. As per Ex. P2 the entire incident occurred only once near the well. Opposite to the goat hut of the deceased there was road and on the other side of the road there was kirana shop, behind the kirana shop well was located. He also stated that, when the wife of the deceased came to him at about 8. 00 p. m. , on 3-7-1998 there was no power supply in the village. Opposite to the goat hut of the deceased there was road and on the other side of the road there was kirana shop, behind the kirana shop well was located. He also stated that, when the wife of the deceased came to him at about 8. 00 p. m. , on 3-7-1998 there was no power supply in the village. He accepted the fact that he had telephoned to Seethanagaram Police Station and informed the police about the incident and told them the facts which were narrated to him by the wife of the deceased. As per Ex. P2 there was no second incident occurred. ( 5 ) P. W. 2 is the eye witness being the wife of the deceased. She stated that she had four children. She stated that L. W. 4, a2 and A3 were quarrelling with regard to sale of arrack sachets. L. W. 4 asked A2 and a3 to sell three arrack sachets for Rs. 20/- instead of Rs. 30/ -. They had a quarrel in front of her house near the well. The incident occurred on Friday at 8. 00 p. m. Her husband in order to separate L. W. 4 from A2 and A3 went there and chastised A2 and A3 and advised them not to quarrel with L. W. 4. After separating them he came back to his house. Then A2 and A3 informed the matter to A1 that her husband had intervened when they had quarrel with L. W. 4. Then al to A3 came in front of their house and al abused her husband by hurling some abuses and saying that he will hack those who chastised. Then her husband told them that, if anybody intervenes and settles any disputes whether he would kill all the persons. Her husband also informed them that A2 and A3 were selling arrack which was illegal. Then the accused said that they would sell arrack and came into their house. Her husband told them that if they sell arrack in front of their house he would inform the illegal trade to one Janakirama rao, elder of the village. Thereupon A1 to a3 took away her husband forcibly, A1 hacked her husband on his left shoulder and on head, chest, near the eye and back with a knife. A2 and A3 caught hold of her husband at that time. Thereupon A1 to a3 took away her husband forcibly, A1 hacked her husband on his left shoulder and on head, chest, near the eye and back with a knife. A2 and A3 caught hold of her husband at that time. While she and her eldest daughter were taking the injured to report the matter to the elders on the way to the house of Rayudu Ramayya her husband passed away. She identified the knife used by Al against her husband. She informed the matter to P. W. I who recorded her statement. She exhibited her LTI on Ex. P1. The next day morning police visited the scene of occurrence. They observed the scene of offence. They also examined her. They also examined her daughter. They were present at the time of inquest. The motive of the crime was that the accused were trading in illicit liquor. In cross-examination she stated that, she and her husband used to attend coolie work from 9. 00 am to 5. 00 or ( 6 ) 00 p. m. After returning from their work she used to prepare food and after finishing the meals they used to go for sleep. 5 or 10 minutes before the incident her husband had meals. Ex. Pl was drafted by P. W. 1 near her house. There was no electricity supply at her house. There was no electricity facility in and around her house, but there was a streetlight. The streetlight pole was situated at a distance of 5 or 6 feet from her house. Only with the help of streetlight she had witnessed the incident. Without the streetlight it was not possible for her to witness the incident. She had not handed over her blood stained clothes to police. There was a goat shed in front of her house, behind it there was a road. In front of her house there was kirana shop of V. Chinnayya. One could see the shop while sitting on the pial of her house. Behind the shop at about 10 feet there was well. The incident occurred in front of the shop nearby the telephone pole. If the incident occurred near the well it could have not possible for her to witness the incident. She had not stated in Ex. Pl or in Ex. P7 which was the statement recorded under Section 164 Cr. Behind the shop at about 10 feet there was well. The incident occurred in front of the shop nearby the telephone pole. If the incident occurred near the well it could have not possible for her to witness the incident. She had not stated in Ex. Pl or in Ex. P7 which was the statement recorded under Section 164 Cr. PC about the presence other eldest daughter J. Posamma who was residing in her house on the date of incident. She denied that her daughter was not present on the date of occurrence. After 2 days of incident police came and took out M. O. 6 knife from the house of palli Mangamma. P. W. I had informed the police about the occurrence on the date of occurrence on phone thereafter he had drafted her statement under Ex. P1. 6. P. W. 3 is the brother of the deceased. He stated that the deceased was murdered by the accused persons at about 8. 00 p. m. near the electric pole. He had witnessed the incident while he was returning from his village. The accused had also beaten him with sticks. He had lost his consciousness and had fell down. One janakirama Rao took him to Government hospital, Rajahmundry and on the next day he was treated in the hospital for his injuries and discharged. P. W. I recorded his statement. On the next day morning at 8. 00 a. m. police came. They also observed his injuries and observed the scene of offence and inquest was held. He was not present at the time of inquest. Police recorded his statement. His statement under Section 164 cr. P. C was also recorded. His brother had sustained 10 injuries all over his body. In cross examination he stated that he was not a direct witness to the quarrel between l. W. 4 and A2 and A3. He had also not seen as to how the deceased sustained injuries. He had not stated before the police that he was a direct witness about the occurrence. He had stated in his statement under section 164 Cr. P. C that the incident had occurred near the well. He was living with the deceased in one house. It was not true to suggest that nothing could be seen if it happened near the well if one was watching from his house. He had stated in his statement under section 164 Cr. P. C that the incident had occurred near the well. He was living with the deceased in one house. It was not true to suggest that nothing could be seen if it happened near the well if one was watching from his house. If it were dark nothing would be visible. On the next day at 4. 00 p. m. , he was taken to Government hospital, Rajahmundry for treatment to his injuries. He had stated to the Doctor as to how he had sustained injuries. He had stated to the Doctor that he was beaten with a cycle chain. ( 7 ) P. W. 4 knew the deceased and also the accused. He is resident of the same village. A1 and A2 were Masons and A3 used to sell arrack. On the date of occurrence a3 had sold 3 packets of arrack to him and he paid Rs. 20/- as usual but he demanded rs. 30/-, the witness told him that he would give Rs. 10/- on the next day. After receiving rs. 20/- A3 caught hold of his shirt then he took A3 before the ryots in the village and told them that A3 was doing illicit business in arrack in the village. This had happened at about 6. 30 p. m. He went directly to the ryots and reported the matter to them. The deceased at that time had not come. He went back to his house and while he was taking meals A2 and A3 came and beat him. A2 hacked him on his chest with a knife. Subsequently he came to know that these accused murdered the deceased. On the next day at about 4. 00 p. m. he was taken to Government hospital for treatment. On the next day police examined him and recorded his statement. His statement was also recorded under section 164 Cr. P. C. ( 8 ) BEFORE dealing with the testimony of other witnesses it will be important to note down the testimony of P. W. 11 who is the only other witness who has been projected as eye witness. She is daughter of the deceased. She stated that her father was murdered by A1 with a knife. A2 and A3 had caught hold of her father and Al hacked him. She is daughter of the deceased. She stated that her father was murdered by A1 with a knife. A2 and A3 had caught hold of her father and Al hacked him. She had witnessed the incident from her mother s house standing on the pial. At that time she, her mother and P. W. 2 were witnessing the same. She and her mother raised cries and the accused left the place of occurrence. She stated that at about 7. 00 p. m. on that day when P. W. 4 was having quarrel with regard to arrack her father went to rescue P. W. 4, he failed in his attempt and came back. Then A1 came to her house along with A2 and A3 and hacked the deceased after taking him out of the house. A2 and A3 caught hold of her father and Al hacked him with a knife. Her father died. On the next day she was examined by the police. ( 9 ) GOING by the evidence of these eye-witnesses many doubts arise. According to P. W. 1 s statement there was only one incident which occurred near the well. It is in the testimony of P. W. I as well as in the testimony of P. Ws. 2 and 3 that the incident could have not been witnessed from the house of the deceased. It is not the case of either the wife or the brother or the daughter of the deceased that they were present near the well. They all along maintained that they were present near their house and they have accepted that, had the occurrence taken place near the well which was 10 feet behind the kirana shop which was behind the house of the deceased it could not have been seen. P. W. 2 also accepted that their house had no electricity supply, but she submitted that there was a streetlight and she watched the occurrence because of streetlight. She also accepted that, had the streetlight not been there she could have not witnessed anything due to the darkness. On the other hand P. W. 1 stated that the whole village had no electricity supply on that day. There is also confusion about how many incidents occurred on that day. According to Exs. She also accepted that, had the streetlight not been there she could have not witnessed anything due to the darkness. On the other hand P. W. 1 stated that the whole village had no electricity supply on that day. There is also confusion about how many incidents occurred on that day. According to Exs. Pl and P2 only one incident occurred, but if one goes through the statements of the eye-witnesses there arise a suspicion that there were three incidents, one between P. W. 4 and A2 and a3 where the deceased was not present, second when P. W. 4 went to the elders and informed them that A2 and A3 were selling illicit liquor, then the third when the deceased was killed. It was all along the case as projected through the evidence of P. Ws. 1 and 2 that P. W. 4 was present at the time of occurrence, but he stated that he was not present at the place of occurrence. It is true that P. W. 1 stated that report was given to him by P. W. 2 and he recorded it and along with his report he submitted it to the police at about 1. 00 a. m. during the night. The VAO had also informed the police immediately at 8. 00 p. m. about the occurrence but surprisingly till next day morning police did not arrive at the scene of occurrence. The evidence is not foolproof even to tell us as to at which place the occurrence took place, did it take place before the house of the deceased or near the well. In our view this is sufficient to create a doubt about the prosecution case. In this regard the learned Counsel for the appellants has referred to a judgment of supreme Court in State of U. P v. Khacheroo, 1997 SCC (Crl.) 966, and submitted that the place of occurrence assumes importance if there is a doubt about the actual place of occurrence and if the place of occurrence is seriously disputed then prosecution must prove beyond reasonable doubt as to what was the place of occurrence. In this case we have found that it is not ascertainable conclusively as to which was the place of occurrence. Therefore the benefit of doubt should have gone to the accused persons. In this case we have found that it is not ascertainable conclusively as to which was the place of occurrence. Therefore the benefit of doubt should have gone to the accused persons. ( 10 ) NOW another reason to disbelieve the story of the prosecution is that, P. W. 9 conducted the post-mortem. The post-mortem was conducted by this Doctor on 4-7-1998 at 3. 00 p. m. , that would mean that the post-mortem was conducted after about 20 hours of the occurrence. The evidence of p. Ws. l and 2 was that the deceased died almost instantaneously. The Doctor found partly digested food articles in the abdomen of the deceased and according to him the deceased might have taken meals 3 to 4 hours prior to his death, but the wife of the deceased stated that immediately after taking the meals the occurrence took place. Therefore, even the time of death becomes doubtful. In this regard also the learned counsel relied on a judgment of Supreme court in Surinder Singh v. State of Punjab, 1989 SCC (Crl) 649. In order to appreciate the judgment it will be necessary to refer to some of the relevant facts of that case. The facts as narrated in the judgment of Supreme court are that; P. W. 1 the doctor who conducted the autopsy in that case had estimated the death 16 hours before the occurrence. The High Court brushed aside the estimate of the doctor regarding the time of death by saying it was only an opinion evidence. The Supreme Court observed that the High Court had failed to take into consideration another relevant factor which would indicate the probable time of death. P. W. I had found semi-digested food in the stomach of deceased at the time of autopsy therefore he stated that the deceased should have taken his last meal 2/3 hours before his death. The Supreme Court further observed that, if the prosecution case had to be accepted then it would mean that the deceased must have had his last meal at about midnight which was somewhat unlikely. According to P. W. 2 in that case the deceased and the appellant were taking curd at a shop at about 9 or 10 p. m. and it was at that time the quarrel had taken place between them. According to P. W. 2 in that case the deceased and the appellant were taking curd at a shop at about 9 or 10 p. m. and it was at that time the quarrel had taken place between them. After the quarrel was stopped the deceased went to another place called New Market and lay down on a bench. Such being the case, the Supreme court expressed it highly doubtful if deceased would have thereafter got up and gone somewhere and taken his food. The medical evidence regarding the time of death and the presence of semi-digested food in the stomach of deceased throws considerable doubt about the prosecution case that the deceased had been attacked at about 3 or 4 pm. Now, in the present case also the wife of the deceased had stated that the deceased had taken his meal immediately before the occurrence because according to her both of them used to go out for doing labour, they would return by 5 or 6 p. m. then they would prepare food and after having dinner they would sleep. She had stated that the deceased had taken his dinner immediately before the occurrence but the Doctor who conducted the autopsy over the body of the deceased had found some undigested food in the stomach and according to him the deceased might have taken meals 3 or 4 hours before his death. Therefore, if the occurrence had taken place at 8. 00 p. m. the food should have been taken at 3. 00 or 4. 00 p. m. , and if the food had been taken say even around 7. 00 p. m. , the incident could have not occurred at 8. 00 p. m. Coupled with this, if one sees the fact that police had been informed on phone at 8. 00 p. m. , according to VAO, but they reached the scence of occurrence on the next day morning, the whole thing becomes doubtful. For these reasons, we find that there are serious loopholes in the prosecution story and the trial Court was not right in convicting the accused. 00 p. m. , according to VAO, but they reached the scence of occurrence on the next day morning, the whole thing becomes doubtful. For these reasons, we find that there are serious loopholes in the prosecution story and the trial Court was not right in convicting the accused. ( 11 ) IN view of our findings with regard to the place of occurrence and time of occurrence and in view of the fact that the evidence of eye-witnesses cannot be believed, all other witnesses being formal as they are witnesses either to seizures or to inquest, we do not propose to analyse their testimony. ( 12 ) FOR the reasons given above, the appeal is allowed. Conviction and sentence set aside. The appellant-accused are acquitted. They shall be released forthwith if not required in any other case.