VISHNU SAHAI, J. Four persons namely, Nem Raj, Nanku alias Nankau, Sipahi Yadava and Shohrat were tried by II Addl. Sessions Judge, Bahraich in Sessions Trial No. 431 of 1979, for the offence punishable under Section 302/34 IPC. Vide judgment and order dated 21-1-1981 the learned Judge found them guilty for the said offence and sentenced each one of them to undergo imprisonment for life. Aggrieved by the said judgment and order, Sipahi Yadava and Shohrat preferred criminal appeal No. 47 of 1981 and Nem Raj and Nanku alias Nankau criminal appeal No. 57 of 1981, in this Court. Since both these appeals arise out of a common factual matrix and impugned judgment, we are disposing them off by one judgment. 2. Shortly stated the prosecution case runs as under: The informant Smt. Bhuwanpati P. W. 1 and Yashodra Devi P. W. 2 were wife and mother respectively of the deceased Ram Khelawan. At the time of the incident, they along with Ram Khelawan and other members of the family were living in village Gur Purwa, Hamlet of Hallapur, within the limits of police station Bhinga District Bahraich. At that time, the four appellants were also living in village Parashrampur Bhatgar, within the limits of Police Station Bhing a District Bahraich. Appellants Nem Raj and Nanku alias Nankau are real brothers and appellants Sipahi Yadav and Shohrat are said to be the associates of appellant Nem Raj. Six months before the incident, a theft had taken place at the house of the informant and in the FIR pertaining to it, which was lodged by the husband of the informant, deceased Ram Khelawan alias Khelawan, appellant Nem Raj and three others were nominated. Nem Raj and others were arrested and thereafter were released on bail. On account of this, they bore grudge against the deceased Ram Khelawan alias Khelawan. On the night of 27/28-10-1979 informant along with her husband Ram Khelawan alias Khelawan and their child aged about 1 and 1/4 years, slept in her western madha, the informants mother-in-law Yashodra Devi slept in the eastern madha, and the informants brother-in-law (elder brother of her husband) Swami Dayal slept in the western madha. On the night of 27/28-10-1979 informant along with her husband Ram Khelawan alias Khelawan and their child aged about 1 and 1/4 years, slept in her western madha, the informants mother-in-law Yashodra Devi slept in the eastern madha, and the informants brother-in-law (elder brother of her husband) Swami Dayal slept in the western madha. At about mid night while informant her husband and their 1-1/4 year old child were sleeping, the four appellants, namely, Nem Raj, Nanku alias Nankau, Sipahi Yadava and Shohrat came, Nem Raj was armed with knife and the remaining with dandas. Nanku alias Nankau dragged out the informant from her cot, scolded her and made her at a distance of three feet. At that juncture the informant raised cries, hearing which her mother- in-law Yashodra Devi and her brother-in-law Swami Dayal came. The latter had a torch. Some of the appellants also had torches. Later on some other witnesses came. All of them saw the four appellants assaulting Ram Khelawan alias Khelawan with their weapons. After assaulting Khelawan alias Ram Khelawan the appellants ran away. As a consequence of the knife assault intestines of Ram Khelawan alias Khelawan protruded out. Therefore, the informant along with Swami Dayal took her husband Ram Khelawan alias Khelawan, who was precariously injured, to Bhinga Hospital, where the doctor after examining his injuries advised that he be taken to Civil Hospital, Bahraich. Thereafter, she and Swami Dayal arranged for some money from Chander Sonar and then got that FIR scribed by a boy, who had reached there. Then along with her FIR the informant proceeded to police station Bhinga where she lodged the same at 7. 30 a. m. on the morning of 28-10-1979, the police station being situated at a distance of three miles from the place of incident. 3. The evidence of Head Constable Lalji Dixit P. W. 3 shows that on 28-10-1979 at 7. 30 a. m. FIR of the incident was lodged by informant Smt. Bhuwanpati at Bhinga Police Station. On the basis of the said FIR an offence punishable under Section 307 IPC was registered against the appellants. 4. Going backwards to the injuries of Ram Khelawan alias Khelawan were medically examined on 28-10- 1979 at 3. 45 a. m. by Dr. 30 a. m. FIR of the incident was lodged by informant Smt. Bhuwanpati at Bhinga Police Station. On the basis of the said FIR an offence punishable under Section 307 IPC was registered against the appellants. 4. Going backwards to the injuries of Ram Khelawan alias Khelawan were medically examined on 28-10- 1979 at 3. 45 a. m. by Dr. S. K. Sinha (P. W. 5) Medical Officer, Male Dispensary, Bhinga, who found on his person the following injuries: (1) Abraded contusion 4 cm x 2 cm on the top of right shoulder joint simple blunt injury. (2) Contusion 5 cm x 2 cm on the right upper arm outer aspect lower part of deltoid, reddish simple blunt injury. (3) Penetrating wound 3 cm x 2 cm x abdominal cavity on the right side of abdomen at rib level of the cortal margin in the anterior mid line. omentum protruding out of the wound, with fresh blood oozing, sharp pointed injury. (4) Contusion 14 cm x 2 cm on the front of the right chest 11 cm below the nipple. Directed side ways. (Sic) for the mid line. . . . sic. . . . . . Reddish colour simple blunt injury. (5) Penetrating wound 2 cm x 1-1/2 cm x abdominal cavity on the right side of abdomen 5 cm away from the umbilicus at 10o clock position and directed side ways. Omentum protruding out, the wound with fresh blood oozing. Sharp pointed injury. In the opinion of Dr. Sinha injuries No. 1, 2 and 4 were simple in nature and were attributable to a blunt weapon like lathi/danda and injury Nos. 3 and 5 were attributable to sharp edged weapon like knife. In his statement, during trial, Dr. Sinha stated that the said injuries could have been caused on 27/28-10- 1979 at about 12-1. 00 a. m. and were sufficient in the ordinary course of nature to cause death. It is pertinent to mention that the evidence of Dr. Sinha (P. W. 5) shows that the victim was admitted in his dispensary at 3. 20 a. m. and immediately on his admission he sent information to police station Bhinga. It is also significant to mention that the evidence of H. C. Lalji Dixit (P. W. 3) shows that on 28-10-1979 at 5. Sinha (P. W. 5) shows that the victim was admitted in his dispensary at 3. 20 a. m. and immediately on his admission he sent information to police station Bhinga. It is also significant to mention that the evidence of H. C. Lalji Dixit (P. W. 3) shows that on 28-10-1979 at 5. 00 a. m. information was received through Chaukidar from Bhinga Hospital about the admission of Ram Khelawan alias Khelawan at Bhinga Hospital. 5. The evidence of the informant Smt. Bhuwanpati shows that while she and her brother-in-law Swamy Dayal, along with Ram Khelawan alias Khelawan, were on way to Civil Hospital, Bahraich, Ram Khelawan alias Khelawan breathed his last. 6. The evidence of H. C. Lalji Dixit P. W. 3 shows that on 29-10- 1979 information was received about the death of Ram Khelawan alias Khelawan and consequently the case was converted from Section 307 IPC to one under Section 302 IPC. 7. The autopsy on the course of the deceased Ram Khelawan alias Khelawan was conducted on 28-10- 1979 at 4. 30 p. m. by Dr. Prem Chandra Misra, P. W. 6 who found on it the following ante mortem injuries: (1) Contusion 4 cm x 0. 75 cm over outer aspect of right arm 8 cm below from shoulder joint. (2) Abraded contusion 4 cm x 1 cm over back of right shoulder. (3) Penertraing wound 2 cm x 0. 5 cm cavity deep over right side of abdomen 6 cm above and lateral to umbilicus mesentery coming out from the wound. (4) Penetrating wound 2. 5 cm x 1 cm cavity deep over right side of abdomen 7 cm lateral and slightly upward from injury No. 3. On internal examination Dr. Misra found peritoneum punctured under injury Nos. 3 and 4 and large intestine punctured under injury No. 3. In his statement during trial Dr. Misra stated that the deceased died on account of loss of blood, as a result of ante mortem injuries suffered by him. 8. The investigation was conducted in the usual manner by S. I. , K. B. Singh (PW 7 ). His evidence shows: "on receiving information about the admission of Ram Khelawan alias Khelawan at Bhinga Dispensary he went to the said Dispensary and recorded the statement of Ram Khelawan alias Khelawan under Section 161 Cr. 8. The investigation was conducted in the usual manner by S. I. , K. B. Singh (PW 7 ). His evidence shows: "on receiving information about the admission of Ram Khelawan alias Khelawan at Bhinga Dispensary he went to the said Dispensary and recorded the statement of Ram Khelawan alias Khelawan under Section 161 Cr. P. C. However, since for plausible reasons contained in para 18 of the impugned judgment, the learned trial Judge has not placed reliance on the said statement, we do not want to burden our judgment by discussing it. On completion of the investigation, he submitted charge sheet against the appellants. 9. The case was committed to the Court of Sessions in usual manner, where the appellants were charged for an offence punishable under Section 302/34 I. P. C. to which charge they pleaded not guilty and claimed to be tried. During trial, in all the prosecution examined seven witnesses. Two of them namely, Smt. Bhuwantpati and Yashodra Devi, wife and mother respectively of the deceased Ram Khelawan alias Khelawan, were examined as eye witnesses. The learned trial Judge believed the ocular account furnished by the prosecution and convicted and sentenced the appellants in the manner stated in para 1. Hence these appeals. 10. We have heard Mr. S. K. Kalia and Mr. S. M. Nasir for the appellants and Mr. Umesh Verma, for the respondents and perused the entire record. After the utmost circumspection, we are of the judgment that these appeals deserves to succeed. 11. As would become manifest from what we have mentioned above, the conviction of the appellants is founded on the ocular account furnished by Smt. Bhuwanpati (P. W. 1) and Smt. Yashodara Devi (P. W. 2), wife and mother, respectively of the deceased. On account of their extremely close relationship with the deceased, their evidence would have to be examined with utmost caution and we have no compunction in observing that once we do so, it would not be safe to accept it. We now propose giving our reasons for reaching the said conclusion. 12. We begin with the evidence of Smt. Bhuwanpati, P. W. 1. Since in para 2 we have set out the prosecution story on the basis of the recitals contained in her examination-in-chief we would not like to burden this judgment by graphically reiterating all the details. We now propose giving our reasons for reaching the said conclusion. 12. We begin with the evidence of Smt. Bhuwanpati, P. W. 1. Since in para 2 we have set out the prosecution story on the basis of the recitals contained in her examination-in-chief we would not like to burden this judgment by graphically reiterating all the details. In short her evidence shows thus: There was enmity between appellant Nem Raj on one hand and her husband on the other (We have set out the said enmity in para 2 ). Appellant Nankau was brother of appellant Nem Raj and appellants Sipahi Yadav and Shohrat were associates of Nem Raj. On account of enmity, on the date of the incident, at about mid night while she along with her husband Ram Khelawan alias Khelawan and their 1-1/4 year old child, was sleeping on a cot inside the madha, appellant Nem Raj armed with knife along with appellants Nankau, Sipahi Yadav and Shohrat armed with dandas came. They woke her up; dragged her out from her bed; and made her sit 3 feet away. She raised cries, hearing which her brother-in-law Swamy Dayal (elder brother of her husband) and mother-in-law Smt. Yashodara Devi, who were sleeping in separate madahas, came. Some others also came. All of them saw appellant Nem Raj with a knife and the other three appellants with dandas assaulting the deceased. Thereafter the appellants ran away. 13. We have gone through the statement of Smt. Bhuwanpati and in our view it does not inspire confidence. We find it to be in derogation with probabilities. Her statement shows that at about mid night while she was sleeping on a cot, along with her husband Ram Khelawan alias Khelawan and their 1- 1/4 year old child, the appellants came, woke her up; dragged her out of the cot, and made her sit in the corner at a distance of three feet from where she raised cries. We make no bones in observing that we find her statement that the appellants woke her up, dragged her from the cot, and made her sit at a distance of 3 feet from where she raised cries, to be extremely unnatural. It is elementary common sense that the appellants choose mid night to assault the deceased because they did not want to be recognized by the witnesses. It is elementary common sense that the appellants choose mid night to assault the deceased because they did not want to be recognized by the witnesses. There is no rule of appreciation of evidence which says that common sense should be put in cold storage. If on the touch stone of common sense, the evidence of Smt. Bhuwanpati (P. W. 1) is to be examined, it is impossible to believe that the appellants would have woken her up. In our view this alone is sufficient to discredit her evidence. There is another reason why we are loathe to accept her evidence. We have seen that she stated that appellant Nem Raj assaulted her husband Ram Khelawan alias Khelawan with a knife. In the earlier part of our judgment we have extracted in entirety the life-time medical examination report of Ram Khelawan alias Khelawan and his autopsy report. Their perusal shows that both the penertrating injuries suffered by Khelawan would have resulted in blood gushing out and that being so, the investigating officer should have recovered blood from cot on which the deceased was assaulted, and on the ground beneath it. However, the Investigating Officer S. I. B. K. Singh in his cross-examination (in para 4) candidly stated that he found no blood on the place of incident. It is true that he stated that on the kathri, on which the deceased was sleeping, he noticed blood, but since for no plausible reason, he did not seize it under a recovery memo and did not mention about the factum of blood being present on it in the case diary we are not prepared to accept this statement of his. It appears that the prosecution was conscious that absence of blood from the place of incident would be a nail in the coffin of its case. To get over it Smt. Bhuwanpati stated that she tied one of the bleeding injuries of her husband with a piece of cloth. But this would not explain absence of blood from the place of incident because blood must have gushed out from the second bleeding injury (penetrating wound) suffered by her husband. 14. To get over it Smt. Bhuwanpati stated that she tied one of the bleeding injuries of her husband with a piece of cloth. But this would not explain absence of blood from the place of incident because blood must have gushed out from the second bleeding injury (penetrating wound) suffered by her husband. 14. The absence of recovery of blood from the place of incident coupled with the unnatural conduct of the appellants in waking up Smt. Bhuwanpati, as deposed 9 to by her and the circumstance that being the wife of the deceased, she is an interested witness, render it extremely unsafe to accept her testimony. Consequently, we reject it. 15. And we dare say that once we reject the testimony of Bhuwanpati, as a logical imperative the testimony of Smt. Yoshodra Devi (P. W. 2) would also have to be rejected. The evidence of Yoshodra Devi is clearly to the effect that on hearing the cries of Bhuwanpati she rushed to the place of incident and as we have mentioned earlier, if the story of Bhuwanpati being woken up by the appellants and her raising cries is rendered doubtful, the obviously there was no question of Yashodara Devi rushing to the place of incident and seeing the incident. Apart from it, her evidence suffers from a improability. She categorically stated that the appellant Nem Raj assaulted the deceased with a knife but as we have seen blood must have oozed out from both the penetrating injuries suffered by the deceased and the categorcial evidence of the Investigating Officer that he did not find any blood on place of the incident renders it extremely hazardous to accept her evidence. We also feel that she had no opportunity to see the incident. The evidence of Smt. Bhuwanpati and her own evidence shows that she was sleeping in another madha. Smt. Bhuwanpati in her cross-examination (in para 11) stated that the incident was over in seconds (marpeet may ek chun laga tha ). This appears to be probable because the appellants were four in number and the autopsy report shows that the deceased suffered only four injuries. It was thus an incident of the hit and run type and by the time she would have woken up the appellants would have run away. This appears to be probable because the appellants were four in number and the autopsy report shows that the deceased suffered only four injuries. It was thus an incident of the hit and run type and by the time she would have woken up the appellants would have run away. Again we find that like Smt. Bhuwanpati, she is a highly interested witness being the mother of the deceased. There is another infirmity in her evidence. In her examination-in-chief she stated that she saw the incident from inside the madha wherein the deceased was sleeping and assaulted. However, in her statement under Section 161 Cr. P. C. with which she was confronted, she stated that she had seen the incident from the court-yard. 16. For the aforesaid reasons, we are not inclined to accept the testimony of Smt. Yashodra Devi P. W. 2. 17. As mentioned above, the trial Judge has based the conviction of the appellants only on the ocular account of Smt. Bhuwanpati and Smt. Yashodara Devi. Since we have rejected it and as mentioned earlier the trial Judge has not accepted the dying declaration of the deceased, in the form of his statement under Section 161 Cr. P. C. for possible reasons furnished contained in para 18 of the impugned judgment, there is no other evidence to connect the appellants with the crime. 18. In the result: (A) Criminal Appeal No. 47 of 1981 Appeal is allowed. Conviction of appellants Sipahi Yadav and Shohrat for the offence punishable under Section 302/34 IPC is set aside. They are acquitted thereunder. They are on bail. They need not surrender. Their bail bonds stand cancelled and sureties discharged. (B) Criminal Appeal No. 57 of 1981 Appeal is allowed. Conviction of appellants Nem Raj and Nanku alias Nankau for the offence punishable under Section 302/34, I. P. C. is set aside. They are acquitted thereunder. They are on bail. They need not surrender. Their bail bonds stand cancelled and sureties discharged. Appeal allowed. probable because the appellants were four in number and the autopsy report shows that the deceased suffered only four injuries. It was thus an incident of the hit and run type and by the time she would have woken up the appellants would have run away. Again we find that like Smt. Bhuwanpati, she is a highly interested witness being the mother of the deceased. It was thus an incident of the hit and run type and by the time she would have woken up the appellants would have run away. Again we find that like Smt. Bhuwanpati, she is a highly interested witness being the mother of the deceased. There is another infirmity in her evidence. In her examination-in-chief she stated that she saw the incident from inside the madha wherein the deceased was sleeping and assaulted. However, in her statement under Section 161 Cr. P. C. with which she was confronted, she stated that she had seen the incident from the court-yard. 16. For the aforesaid reasons, we are not inclined to accept the testimony of Smt. Yashodra Devi P. W. 2. 17. As mentioned above, the trial Judge has based the conviction of the appellants only on the ocular account of Smt. Bhuwanpati and Smt. Yashodara Devi. Since we have rejected it and as mentioned earlier the trial Judge has not accepted the dying declaration of the deceased, in the form of his statement under Section 161 Cr. P. C. for possible reasons furnished contained in para 18 of the impugned judgment, there is no other evidence to connect the appellants with the crime. 18. In the result: (A) Criminal Appeal No. 47 of 1981 Appeal is allowed. Conviction of appellants Sipahi Yadav and Shohrat for the offence punishable under Section 302/34 IPC is set aside. They are acquitted thereunder. They are on bail. They need not surrender. Their bail bonds stand cancelled and sureties discharged. (B) Criminal Appeal No. 57 of 1981 Appeal is allowed. Conviction of appellants Nem Raj and Nanku alias Nankau for the offence punishable under Section 302/34, I. P. C. is set aside. They are acquitted thereunder. They are on bail. They need not surrender. Their bail bonds stand cancelled and sureties discharged. Appeal allowed.