S. K. AGRAWAL, J. ( 1 ) HEARD learned counsel for the appellant Shri Raghuraj Kishore and Shri J. S. Sengar and Shri Ratan Singh Additional Government Advocate for the State. ( 2 ) THIS appeal was filed by 6 appellants against the order of conviction and consequent sentence of life imprisonment under Section 302/149. I. P. C. appellants Kailash Narain and Jitendra Singh were convicted and sentence under Section 323 I. P. C. to Rigorous Imprisonment for one year and under Section 147 I. P. C. to 2 years Rigorous Imprisonment to appellant Nos. 1, 2, 5 and 6 namely Kailash, Udai Narain, Ram Babu and Jitendra Singh Appellants Nos. 3 and 4! Ram Shankar and Ram Autar, were convicted under Section 148 I. P. C, and sentenced to 2 years Rigorous Imprisonment. All these sentences were to run concurrently. ( 3 ) THE incident in this case occurred on the night intervening 14/15/7/1976 at about 1/1. 30 a. m. on the roof if the house of the deceased Onkar Nath. The report of the incident was lodged at 7. 00 a. m. by Ram Gopal P. W. 5. brother of deceased Onkar Nath. The enmity that played its role behind this murder was on account of the construction of a shop by the deceased on the Gram Samaj Land. According to the F. I. R. at the place of occurrence no source of light was there but for the moon light. The F. I. R. of the incident came into existence on 15/7/1976 at 7. 00 a. m. The police station is situated at a distance of 6 miles from the place of occurrence. Smt. Urmila allegedly also suffered injuries in this case. Her injuries were from some sharp edged pointed weapon. The deceased had not suffered any sharp edged weapon injury despite the fact that Udai Narain and Ram Shankar were possessing Karaulis and alleged to have used them as knife. The other three accused Kailash Narain, Ram Babu and Jitendra Singh were unarmed. Three appellants were said to have pressed the deceased on the cot. ( 4 ) AFTER the investigation by the SJ. Mohd. Nairn Khan and Sheo Raj Singh charge sheet was submitted in Court and the accused persons were challaned and convicted as earlier discussed. The other three accused Kailash Narain, Ram Babu and Jitendra Singh were unarmed. Three appellants were said to have pressed the deceased on the cot. ( 4 ) AFTER the investigation by the SJ. Mohd. Nairn Khan and Sheo Raj Singh charge sheet was submitted in Court and the accused persons were challaned and convicted as earlier discussed. ( 5 ) THE defence has denied the prosecution case in its entirety and have suggested their involvement in the offence on account of enmity with Ram Gopal, Bishambhar and Jai Karan. They had also stated that these persons were bearing animosity against them because the, mother of Ram Gopal was living in illicit intimacy with Sita Ram and they were critical of this unsocial conduct of her. They had severed their relations with them. ( 6 ) IN their trial the prosecution has produced Smt. Urmila P. W. 1 as the sole eye witness of the incident P. W. 2 Jai Karan and P. W. 3 Bishambhar Singh were produced as witnesses of the circumstance of running away from the spot of these appellants immediately after the incident. P. W. 5 Ram Gopal is the informant. He is brother of the deceased and had claimed that he was sleeping at his house which is 6 steps from the place of occurrence. He rushed on hearing the alarm coming from the house of Onkar Nath. He came to the spot immediately thereafter. He did not make any inquiry from his sister in law, wife on the deceased throughout the night. Apart from this witness there are 5 formal witnesses. They are Nawab Singh P. W. 4, the Had Moharrir, he has registered the case on the report of Onkar Nath for an incident that occurred long before the impugned incident. This witness had also proved the report lodged by Ram Gopal for the present incident. It was an dral report according to him. It is Ext. Ka. 3. He has also proved the original diary it is Ext. Ka. 4 on the record. He had admitted that no inquiry was made from the informant regarding Ext. KA. 1. He had denied any acquaintance with Onkar Nath from before. He admitted his visit to the spot of occurrence on the date of incident. He further admitted that the general diary pertaining to Ext. Ka. 3 was sent to the C. O. on 17/7/1976. He had admitted that no inquiry was made from the informant regarding Ext. KA. 1. He had denied any acquaintance with Onkar Nath from before. He admitted his visit to the spot of occurrence on the date of incident. He further admitted that the general diary pertaining to Ext. Ka. 3 was sent to the C. O. on 17/7/1976. Mohd. Nairn Khan P. W. 6 is the first Investigating Officer. He visited the place of occurrence immediately after the registration of the case, prepared the inquest memo, site plan and other papers. He has sent injured Smt. Urmila for her medical examination. He could not conclude the investigation which was subsequently completed by P. W. 8 Sheo Ram Singh the second Investigating Officer. He has submitted the charge-sheet against the appellants. P. W. 7 is Doctor G. C. Gupta who conducted autopsy on the dead body of Onkar Nath on 16/7/1976 at 2. 00 P. M. Dr. U. N. Mehrotra on 15/7/1976 at 7. 00 P. M. examined Smt. Urmila the injured. This is the entire evidence in the nutshell produced by the prosecution in the present case. ( 7 ) DEFENCE has examined R. D. Sagar S. L as D. W. 1. He has proved the arrest memo of the deceased in a Narcotic Substance case. There is no dispute regarding the arrest of Onkar Nath in a case of possession of Opium. It is admitted by Ram Gopal and Bishambhar P. Ws. 3 and 5. ( 8 ) LEARNED counsel for the appellant submits that the conflict between be medical evidence and the prosecution story as contained in the F. I. R. which was subsequently drastically modulated to reconcile the same is fatal to the prosecution case. The only source of light as reported in the F. I. R. was moon light but according to him its availability is open to serious challenge. Admittedly it had rained on the night at about 9-10 p. m. therefore the probability is that is was cloudy and there will be no moon light available. He further asserted that this is the reason why during trial a lantern was also introduced in the case. Witnesses according to him are closely related with the deceased and also inimical so they have reason to depose falsely. They are clearly suppressing truth. He further asserted that this is the reason why during trial a lantern was also introduced in the case. Witnesses according to him are closely related with the deceased and also inimical so they have reason to depose falsely. They are clearly suppressing truth. Not a single independent witness despite their admitted availability was produced by the prosecution to corroborate their case by some independent source. Failure to do so according to him is a deliberate lapse on this part of the prosecution and has to be adversely looked into. Their presence due to the long distance between the places claimed to have been covered also makes their presence a highly doubtful event. As earlier discussed the only eye-witness in the case is Smt. Urmila wife of deceased Onkar Nath. ( 9 ) WE have carefully examined her statement. She claimed that she was sleeping on the roof of her house along with her husband on the date of occurrence. She had also stated about the presence of a lantern at the roof. Her place of sleep was enclosed from all sides. Her enclosure was abutting the stairs. The stairs admittedly were coming from outside her house. She had used for it the words Kamranuma. She had further asserted that her husband was pressed by Ram Shankar. Ram Babu and Udai Narain when she rushed to save her husband she was thrown from the roof by Ram Shankar, Kailash and Jitendra. She hurtled own the stairs. She further stated that Ram Shankar was armed with a Karauli and Ram Autar with a knife. The F. I. R. version was that Udai Narain and Ram Shankar had Karauli andUdai Narain had a knife. Now the prosecution had modulated its case regarding Udai Narain. He was not armed with a Karauli. After she hurtled down from the roof the accused persons also came down and with sharp edged weapons assaulted her. She raised alarm, After the assault accused fled from the spot. She went up stairs and found her husband dead. It is admitted to her that her husband constructed a house on the land of Gram Samaj. The accused persons were restraining him from doing so. This was the only animosity between her husband and the appellants. Her husband had filed a report but according to P. W. 4. no inquiry was conducted on that report. It is admitted to her that her husband constructed a house on the land of Gram Samaj. The accused persons were restraining him from doing so. This was the only animosity between her husband and the appellants. Her husband had filed a report but according to P. W. 4. no inquiry was conducted on that report. According to her accused Jitendra is the Pradhpll of village and Ram Shankar is a member. From her statement it is apparent that her husband had some dispute regarding the shop with his brother in law Jugraj. A Panchayatwas also held in the village in which it was decided that the deceased will hand over all the valuables of the shop to his brother in law Jugraj. The deceased had not done so. In that Panchayat appellant Jitendra and Ram Shankar were present. She denied that her husband had taken money from her brother in law. She did not go to lodge any report herself. She further admitted that her husband was running a country liquor vend in the same premises two or three years ago. This fact has been controverter by other witnesses. According to P. W. 2 and P. W. 3 the contract was cancelled after the incident. The consumers of liquor used to be present in the shop upto 8-9 P. M. She further admitted that her husband was arrested in an Afeem and liquor case but she did not know who was witness in that case. Some of the appellants were witness in that case according to her. It is further admitted to her that she had locked the doors of the roof from both the sides before going to sleep. Lantern was hanging on a peg which was fixed in one of its wall. She did not go till the arrival of the 1. 0. to the place where lantern was hanging. The Investigating Officer had asked for the lantern from her family members. It was never asked from her. The lantern was never given in her custody. She denied that she is making a false assertion about the presence of a lantern. The assailants were pressing their knife and Karauli leisurely and softely into her. She did not fall unconscious. The assailants were not making any in quid from her. They were saying that kill her also. There was no valuable in her house. She denied that she is making a false assertion about the presence of a lantern. The assailants were pressing their knife and Karauli leisurely and softely into her. She did not fall unconscious. The assailants were not making any in quid from her. They were saying that kill her also. There was no valuable in her house. She did not check her belongings to find out whether anything was removed. She did not enter the liquor shop. She did not search for the lantern in the house. She further admitted that she could not see whether her husband was assaulted or his mouth was pressed or how his death was caused. According to her he was never pressed by the three appellants as earlier discussed. She admitted a very important fact in cross examination that she had absolutely no conversation with Ram Gopal the informant even on the next morning. She had very categorically asserted that nothing was disclosed by her to Ram Gopal. Police arrived at the scene of occurrence at about 8 or 9 a. m. the next morning. She did not meet any police man also on that date. The Investigating Officer was busy with the dead body. The 1. 0 did not engage himself in any enquiry from her throughout that day. On the third day inquiry was made from her and she disclosed the entire story to him. Till then She had not disclosed her version to any person of her family or village. She further asserted that in these 3 days she had absolutely no conversation with Ram Gopal P. W. 5. She denied her statements recorded under Section 161 Cr. P. C. by the Investigating Officer that Ram Gopal and many other persons arrived there and this Ram Gopal suggested for the lodging of the report. Even from his statement it is not found whether she had disclosed to Ram Gopal anything about the incident. Rain is also admitted to her in the first part of the night. She had denied that the incident was caused by some unknown person with an intention to commit some mischief. She further denied that she was tutored by her family members for 2-3 days and finally they had persuaded her to name the appellants. She denied to have identified anyone. About light she stated due to tutoring. She had denied that the incident was caused by some unknown person with an intention to commit some mischief. She further denied that she was tutored by her family members for 2-3 days and finally they had persuaded her to name the appellants. She denied to have identified anyone. About light she stated due to tutoring. ( 10 ) IN nutshell from her statement following points emerge out firstly that the residential house and the shop are situated at 21 steps from each other. The other disturbing features is source of light as admitted by all the witnesses. It rained on that day around 9-10 P. M. The incident occurred at 1 or 1. 30 a. m. The possibility that it was cloudy is strong and it rules out availability of moon light. It is clear from the circumstances that are on the record. It is further fortified from the fact that no other source was mentioned in the F. LR. A lantern was introduced, lantern hanging on a peg fixed in the wall in the trial for the first time. Her statement categorically points out that she is telling a lie with regard to the presence of the lantern. She did not know when it had been taken by the 1. 0. Whether any memo pertaining to its recovery was prepared by him or not. It was never given in her custody nor she ever tried to look for it. According to her statement u/s 161 Cr. P. C. Ram Gopal and many others arrived on the scene of occurrence immediately after the assailants took to their heels. But this fact was categorically denied by her in the trial court. This led us to the conclusion that the incident did not occur in the manner as asserted by the prosecution in the F. I. R. and as modulated in the trial court. Her complete silence for 3 days is a very conspicuous circumstance in this background. A woman whose husband was done to death before her own eyes could not be so dumb found as to remain silent for so long. She too was assaulted. She must have shouted out the names of the appellants immediately to each and every one who reached the spot soon thereafter. Her statement was recorded by the 1. 0. after 3 days from the date of murder. She too was assaulted. She must have shouted out the names of the appellants immediately to each and every one who reached the spot soon thereafter. Her statement was recorded by the 1. 0. after 3 days from the date of murder. She did not tell anything to her members including Ram Gopal the informant. This fact is borne out from the statement of Ram Gopal P. W. 3 also wherein he has admitted that he had absolutely no conversation with his sister-in-law about the incident before lodging of the F. LR. Thus we do not find the statement of this witness P. W. 1 Smt. Urmila reliable or trustworthy to uphold the conviction of these appellants. Her total silence for 3 days makes us excessively doubtful about her presence on the fateful night on the spot. Her injuries too did not evince any faith. Its nature and seat makes our doubt firm. ( 11 ) P. W. 2 Jai Karan and P. W. 3 Vishambhar are witnesses of the circumstance to last seen of the accused persons. The assailants ran away with the weapons. Non use of the sharp edged weapon upon the deceased is yet another serious discrepancy in the prosecution version which goes to root of the case. The injury on the skull was certainly there. It is speaking for itself it was positively by some blunt object. In the F. I. R. three persons were alleged to possess Karaulis and no other weapon was asserted therein with any one but in the trial court the three sharp edged weapons were reduced to two one Karauli and once knife and 4 persons were attributed lathis. This is the main discrepancy, an improvement made in the case to reconcile the medical discrepancy which cuts deep into the prosecution evidence and trustworthiness of these witnesses. Lathis were introduced to explain the scalp injury of the deceased. ( 12 ) SO far as these two witnesses are concerned, their statements that they had seer the accused persons running away is in our opinion not worthy of any credence. They all belong to same family. P. W. S is the own brother of the deceased. He had admitted that he had not seen the occurrence. According to P. W. 1 these witnesses arrived at the scene of occurrence around 5 a. m. in the morning. They all belong to same family. P. W. S is the own brother of the deceased. He had admitted that he had not seen the occurrence. According to P. W. 1 these witnesses arrived at the scene of occurrence around 5 a. m. in the morning. This shows that none arrived at the scene of occurrence just after the incident. So far as the P. W. 2 is concerned all his family members used to sleep in his own house which is in the thick of the residential locality. The shops are on the outskirt of the village. The distance between his house and the shop of the deceased admittedly was sufficient to take him some time to be at the spot. He claimed that he was sleeping on the roof of a nearby shop. The place of occurrence is about 6 steps from there. He claimed that he had heard the alarm from there and reached the spot. In Section 161 Cr. P. C. it is said by this witness that the road leading to the spot was different from his house. This was apparently the reason for his shifting the spot of his sleep i. e. the roof of Vishambhars shop on the date of occurrence. It does not stand to reason specially when the entire family used to sleep at the house he would come to sleep on the roof of Vishamabharts shop. He is a married youngman, he could not offer any ostensible reason for it. Vishamabhar P. W. 3 did not state this fact in his evidence. Thus no reliance can be placed on this witness. The circumstances eliminate the presence of P. W. 2 Jai Karan at the alleged hour at the above shop. He coul9 not see the assailants running away with their weapon exposed. This analogy will equally apply to Vishambhar Singh P. W. 3. His evidence does not stand any better. P. W. 2 Jai Narain was the first person to reach the spot. He is inimical to the accused. The witnesses have been suggested by the defence that the mother of Ram Gopal was living with Sita Ram despite the fact that she was a widow as his wife. They were not happy as a result with some accused appellants. They have broken their relationship with them and they have completely discarded them from their society. The witnesses have been suggested by the defence that the mother of Ram Gopal was living with Sita Ram despite the fact that she was a widow as his wife. They were not happy as a result with some accused appellants. They have broken their relationship with them and they have completely discarded them from their society. The suggestion was denied by these witnesses. The manner in which they denied this suggestion, it is apparent that for ulterior purposes suggestion was denied. The denial therefore is deliberate and this was the reason why Ram Gopal and all these witnesses have decided to nominate the appellants in the incident. The intention was to avenge their humiliation. Some other discrepancies are also there which we do not deem necessary to discuss. ( 13 ) THE Investigating Officer has also not take up the case in right earnest. The first 1. 0. Mohd. Naim Khan apparently had gone there and continued to investigate it in a most partisan manner. P. W. 5 was the scribe of the report. He was compelled by him to prepare this report. It was an oral report. The other 1. 0. followed the track further. ( 14 ) THE defence has claimed that there occurred a brawl at the liquor vend of the deceased on that night between the deceased and some hoodlums who desired the vent to remain open for some more time. The deceased insisted upon them to leave the vend. The hoodlums beat the deceased and ransacked the vend. Threw the liquor bottles to the ground. His wife was not there at that time. Her injuries were not caused in the manner as alleged, not certainly by knife and Karauli. The defence story appears probable. Complete absence of any sharp piercing or cutting weapons injury lends credence to their version. Introdu6tion of 4 lathis also creates serious doubt in the veracity of the prosecution story. Non examination of any independent witness also stands fully explained adversely by these facts and circumstances. It certainly makes us draw an adverse inference that they were withheld for oblique motive. ( 15 ) IN the above said circumstances we are inclined to allow this appeal. This appeal is therefore allowed. The appellants are acquitted. The conviction and the consequent sentence for the charge for which they were convicted and sentenced are hereby set aside. It certainly makes us draw an adverse inference that they were withheld for oblique motive. ( 15 ) IN the above said circumstances we are inclined to allow this appeal. This appeal is therefore allowed. The appellants are acquitted. The conviction and the consequent sentence for the charge for which they were convicted and sentenced are hereby set aside. ( 16 ) THESE appellants are on bail, they need not surrender. Their bail bonds are cancelled and sureties are discharged. Appeal allowed. .