( 1 ) THIS appeal is directed against the judgment and order dated 30-4-1981 passed by Sri B. B. Khare the then IInd Addl. Sessions Judge, Farrukhabad in Sessions Trial No. 10 of 1981 convicting and sentencing the appellant to imprisonment for life under Section 302 of Indian Penal Code. ( 2 ) THE prosecution case in brief was that Kamta the deceased of this case was real brother of Gulzari Lal P. W. 1 and Gokaran P. W. 2. It is said that in the year 1977 a theft was committed in the house of Kamta deceased. The theft case proceeded against Sita Ram appellant and was pending in the Court when the present incident occurred. It is further alleged that only a few days before the murder of Kamta, the present appellant extended a threat to deceased Kamta that if he gave evidence against him in the theft case, he would kill him. He also offered a sum of Rs. 1000. 00 if the deceased agreed not to give evidence against him but the deceased did not accede to this offer of the appellant. ( 3 ) IT is alleged that in the night between 9/10-4-1980 deceased was sleeping in his Khalihan which was kept in his field far removed from the village Abadi. On that night his brother Gulzari P. W. 1 and Gokaran P. W. 2, along with Ram Bilas were sleeping at the tube well of Badri Prasad. At about mid night they got up on hearing shrieks and cries of the deceased. They rushed towards the scene of occurrence and saw that Kamta was being assaulted by the appellant Sita Ram with Pharsa while his two unknown companions were assaulting him with Ballam. The incident was witnessed in the light of torch carried by Gokaran. On alarm being raised by the aforesaid witnesses, Ram Chandra and Munna also arrived at the scene of occurrence. They all challenged the appellant and his companions whereupon they took to their heels. Gulzari got First Information Report scribed by Sripal Singh in the morning and lodged the same at police Station Shamsabad at 8. 10 A. M. On the basis of this written report chik F. I. R. was prepared, case was registered in the general diary and investigation ensued. Station Officer K. P. Singh was present at the time when the case was registered. 10 A. M. On the basis of this written report chik F. I. R. was prepared, case was registered in the general diary and investigation ensued. Station Officer K. P. Singh was present at the time when the case was registered. He proceeded for the scene of occurrence and found dead body of Kamta lying on a cot in his Khalihan. Inquest was held and dead body was sent for post mortem examination. He also prepared site plan Ext. Ka. 9 and collected blood stained cloths of the deceased which were found kept separately on the cot. ( 4 ) DR. K. K. Agrawal P. W. 3 conducted the autopsy on the dead body of Kamta on 11-4-1980 at 4. 30 P. M. Following ante-mortem injuries were found:1. Incised wound 1 1/2 " x 1/2" scalp on the middle of forehead. 2. Incised wound 1 1/2 x 2 1/2" x scalp on right side forehead. 3. Incised wound 1" x 1/2" x scalp on top of head 4. Incised wound 4" x 1" x maxilla cut on right cheek extending upto right eye. 5. Punctured wound 1/2" x 1/2" x eye wall deep right eye. 6. Incised wound 1 1/2" x 1/4" x skin on upper part right pinna. 7. Incised wound 1" x 1/2" x mandible cut on chin. 8. Lacerated wound 1" x 1/2" x bone right elbow. 9. Contusion all around both wrists 3/4" wide. ( 5 ) CAUSE of death was found to shock and comma as a result of antemortem injuries. Dr. K. K. Agrawal in his deposition before the trial Court further opined that ante-mortem injuries were sufficient to cause death in ordinary course of nature and death of deceased could be possible at about mid-night of 9/10-4-1980. Post mortem report is Ext. Ka. 5. ( 6 ) STATEMENTS of witnesses were recorded by the Investigating Officer and thereafter rest of investigation was completed by P. W. 3, S. I. Mehdi Hasan Siddiqui who submitted charge-sheet against the appellant. ( 7 ) BEFORE the trial Court prosecution produced 5 witnesses namely Gulzari Lal, P. W. 1, Gokaran P. W. 2, Dr. K. K. Agrawal, P. W. 3, S. I. Mehdi Hasan Siddiqui second Investigating Officer, P. W. 4 and Head Constable Sher Singh, P. W. 5, who proved chik F. I. R. and the relevant entries in the general diary. K. K. Agrawal, P. W. 3, S. I. Mehdi Hasan Siddiqui second Investigating Officer, P. W. 4 and Head Constable Sher Singh, P. W. 5, who proved chik F. I. R. and the relevant entries in the general diary. He also proved papers prepared by S. O. Sri K. P. Singh during investigation. The case of accused was of total denial and he has stated of his false nomination by the first informant on account of enmity. He produced no witness in defence. ( 8 ) ON scrutiny of prosecution evidence the learned trial Judge has found the appellant guilty of the offence of murder and accordingly has convicted and sentenced him to imprisonment for life. ( 9 ) WE have heard Sri B. P. Misra, learned counsel for the appellant and the learned A. G. A. Sri R. K. Singh appearing for the state. We have also perused the record. ( 10 ) SO far as the factum of death of Kamta Prasad is concerned the same has neither been disputed nor assailed before us by the learned counsel for the appellant. It also could not be disputed that Kamta Prasad died a homicidal death on account of ante-mortem injuries which were found on his body by Dr. K. K. Agrawal, P. W. 3 during post mortem examination. However, learned counsel for the appellant has seriously challenged the finding of the trial Court that murder of Kamta Prasad was committed by appellant and his two unknown associates. It has been submitted by the learned counsel for the appellant that the circumstances appearing in the case and the evidence on record indicate that the deceased was done to death in darkness and nobody had seen the same. In short, it was argued that it was a blind murder and none had witnessed the same including P. W. 1 and 2. ( 11 ) WE have minutely and carefully examined the evidence on record in the light of the submission made by the learned counsel for the appellant and the learned A. G. A. ( 12 ) BOTH P. W. 1, Gulzari Lal P. W. 2 Gokaran are admittedly real brothers of deceased Kamta. It has come in their evidence that the incident was also witnessed by Ram Bilas, Gulzari Lal and Ram Chandra, but none of them was produced before the trial Court to support their evidence. It has come in their evidence that the incident was also witnessed by Ram Bilas, Gulzari Lal and Ram Chandra, but none of them was produced before the trial Court to support their evidence. We are fully aware of the legal principle that evidence of these two real brothers of the deceased could not be discarded merely on the ground of their being close relatives of the deceased, but since in the present case we further find that apart from the fact that both were closely related to the deceased, they were also inimical to the appellant in as much as according to P. W. 2 Gokaran he had also given evidence against the appellant in the theft case which had proceeded against him in respect of theft committed at the house of Kamta deceased and the accused had extended threat to him as well. Even as per the prosecution case the incident had occurred at dead hours of night. In these circumstances evidence of P. W. 1 and 2 who are interested and inimical witnesses is to be scrutinized very carefully and cautiously. Both of them have stated that in the night of the incident they were sleeping in the tube-well of Badri Prasad. Neither in the F. I. R. nor during investigation nor in the examination in chief they gave any reason as to why they were sleeping at the tube-well of another person namely Badri Prasad. In the cross-examination however, P. W. 1 added that he was sleeping there to get a watch over his Khalihan. Learned counsel for the appellant invited the attention of the Court to that part of the statement of this witness wherein he admitted that a partition had already taken place between all the three brothers. His fields were about 10-12 fields away from the tube-well of Badri Prasad whom he called Subedar in his statement before the Court. He further admitted that his fields were situated at a distance of not less than one quarter of a mile. If his fields were situated at such a long distance from the Khalihan of Kamta it does not appeal to reason that both the witnesses would sleep at the tube-well of Badri Prasad instead of sleeping near their own fields, if they were to keep a watch over their Khalihan. If his fields were situated at such a long distance from the Khalihan of Kamta it does not appeal to reason that both the witnesses would sleep at the tube-well of Badri Prasad instead of sleeping near their own fields, if they were to keep a watch over their Khalihan. It is also note worthy that in the site plan prepared by the Investigating Officer no Khalihan either of this witness or of Gokran P. W. 2 are shown. The Investigating Officer himself did not appear in Court as a witness. It is thus highly doubtful that khalihan of these two witnesses were also kept in the field of Kamta. The reasons given by these witnesses of their presence in the tube-well of Badri Prasad is thus not convincing and we find it difficult to accept the claim of these witnesses that they were sleeping in the tube-well of Badri Prasad to keep a watch over their Khalihan. It has also come in the deposition of P. W. 2 Gokran that when assailants were assaulting the deceased he and P. W. 1 were only at a distance of 4-6 paces from the deceased. This witness was also flashing torch over the assailants. It does not sound to reason that the accused who had chosen night hours to carry out their plans would not make any attempt over these witnesses with whom he was also having enmity and they were at a hand shaking distance. ( 13 ) SINCE it was a night incident source of light is also of paramount importance. According to the prosecution case both these witnesses got up on hearing cries of the deceased. They rushed towards him. Gokaran carried his torch which he flashed on the assailants in the light wherein the witnesses identified the appellant. According to P. W. 2 the Torch was of two cell. We have already found above that fields of the witnesses were situated far away and even if it is accepted that one of the witness carried with him a two cell battery that would not have given sufficient light for identification from a long distance. It may also be relevant to point out here that no such torch was produced in Court by P. W. 2 when his statement was recorded. It may also be relevant to point out here that no such torch was produced in Court by P. W. 2 when his statement was recorded. ( 14 ) THE medical evidence of the present case also creates a heavy shadow of doubt in the presence of the witnesses because of their occular testimony being at variance with the medical evidence. It is consistent case of both these witnesses that the appellant at the time of incident was having a Pharsa while his unknown companions were having spears and they all had caused injuries to the deceased from their respective weapons. A perusal of the post mortem report shows that injury No. 8 was a bone deep lacerated wound. Doctor Agrawal P. W. 3 has admitted in his cross-examination that this injury was the result of lathi blow. It was certainly a injury caused by a hard blunt object. How this injury was sustained by deceased has not been explained by both these witnesses. In addition to that contusions all around both the wrists were also found. This also indicates that perhaps both the hands of the deceased were tied with a rope before he was mercilessly assaulted. None of the witnesses stated so. The contusions all around both the wrists found during the post mortem examination have also thus remained unexplained. There appears to be weight in the submission of the learned counsel for the appellant that both the wrists of the deceased were tied by a rope before he was assaulted and this was done in darkness by unknown persons and when the deceased was found dead in the morning, the appellant has been nominated falsely by Gulzari Lal, real brother of deceased with a view to grab his property. ( 15 ) APART from the above infirmities which we have pointed out above, we further find that the First Information Report of the present case was lodged with a considerable delay. As per both the witnesses deceased was assaulted by assailants in their presence and when they reached near their brother they found him dead. Accused persons as per the statements all these witnesses had already fled away and villagers had assembled at the scene of occurrence. Why then no attempt was made to lodge the report promptly has not been explained. Accused persons as per the statements all these witnesses had already fled away and villagers had assembled at the scene of occurrence. Why then no attempt was made to lodge the report promptly has not been explained. Neither in the F. I. R. nor in his statement before the Court the first informant gave any explanation of the delay in F. I. R. Since the F. I. R. was lodged with a considerable delay, possibility of the false nomination of the appellant on account of manipulation and consultation cannot be ruled out. ( 16 ) FOR the reasons stated above, we are unable to uphold the order of the trial Court. ( 17 ) ACCORDINGLY appeal is allowed. The conviction and sentence of the appellant are set aside. He is acquitted of the offences charged for. Accused appellant is in jail. He shall be released forthwith unless required to be detained in connection with some other case. Appeal allowed. .