BILAL NAZKI, J. ( 1 ) HEARD learned counsel for the appellants as well as learned public Prosecutor. Crl. A. No. 1594 of 2001 has been filed by A-2, whereas Crl. A. No. 108 of 2002 has been filed by A-1 against same judgment passed in Sessions Case No. 369 of 1997 on the file of the Sessions Judge, khammam. There were five accused in the case. A-3 had died. A-4 and A-5 have been acquitted by the Trial Court. The appellants/ a-l and A-2 have been convicted of the offence under Section 302 IPC and sentenced to undergo life imprisonment and to pay a fine of Rs. 1,000/- in default they have to suffer rigorous imprisonment for two months each. ( 2 ) THE allegation against A-l to A-4 was that on 19-2-1994 at 8. 30 p. m. at the mango garden of one Gunti laiah near rampuram Village, in furtherance of their common intention, they committed the murder by causing the death of one kancherla Venkat Reddy. There was also an allegation of abetment against A-5 with which we are not concerned presently as he has already been acquitted and there was no appeal against the acquittal. On the basis of these allegations a charge under section 302 read with 34 IPC was framed against A-l to A-4. They pleaded not guilty and were tried. A-3 had died. A-4 has been acquitted and A-l and A-2 have been convicted. ( 3 ) THE prosecution examined 16 witnesses and exhibited 11 documents. The whole case rests upon the evidence of p. Ws. 2 and 3 who were projected as eyewitnesses to the occurrence. If their evidence is believed, then it is likely that the prosecution would succeed in getting the conviction confirmed, but if we find, on the other hand, that evidence of these two witnesses is not trustworthy, then there would be no evidence to connect the accused with the commission of offence. Therefore we go directly to the evidence of P. Ws. 2 and 3. However, it may be necessary to mention briefly that P. W. I is the mother of the deceased and she filed first information report Ex. P-1. She gave the first information report on the basis of the information received by her from P. W. 2. Therefore we go directly to the evidence of P. Ws. 2 and 3. However, it may be necessary to mention briefly that P. W. I is the mother of the deceased and she filed first information report Ex. P-1. She gave the first information report on the basis of the information received by her from P. W. 2. ( 4 ) P. W. 2 stated that in 1994 he was working in construction of a complex at mahaboobabad which was being constructed by one Ramanuja Reddy. There was also a bhadradri theatre which was owned by ramanuja Reddy. He knew the deceased venkat Reddy who was working as an employee in Bhadradri theatre at Garla. He was resident of Rampuram Village. He also knew all the accused. About 7 years before the date he was deposing before the trial Court Venkat Reddy died. He stated that on receiving message from Ramanuja reddy he went to Garla Village and after intimating the information in the theatre, he and Pandula Narayana i. e. , P. W. 3 were returning back to their village from Garla village. It was about 7. 30 or 8. 00 p. m. on 19-2-1994. They were returning by foot. By the time they reached the bridge across the river Pakala by the side of Railway track, they noticed Badeti Uppali and Perugu bixam i. e. , A-1 and A-2 coming opposite to them and going towards Garla village. After crossing them, -the witness and P. W. 3 proceeded about 50 yards and came across kancherla Venkat Reddy i. e. , the deceased. After exchange of few words with the deceased, they proceeded further. The deceased was going on his cycle few yards after he crossed them. They suddently heard alarming cries from the deceased. The witness turned back and noticed that badeti Uppali i. e. , A-l was causing an injury with a rod which was like an iron crowbar. A-l was carrying the rod with him and he crossed them. With the injury the deceased fell down. A-l and A-2 threw the cycle of the deceased beyond the Railway track. The deceased was also sought to be pulled beyond Railway track. Then Perugu Bixam i. e. , A-2 threw a boulder on the head of the deceased. A-l was carrying the rod with him and he crossed them. With the injury the deceased fell down. A-l and A-2 threw the cycle of the deceased beyond the Railway track. The deceased was also sought to be pulled beyond Railway track. Then Perugu Bixam i. e. , A-2 threw a boulder on the head of the deceased. When they wanted to approach the deceased, they found two more persons and on seeing all the four persons, they became scared and left the place of occurrence. Both of them i. e. , P. Ws. 2 and 3 quickly ran and went back to their village. They were scared of assailants. He informed the incident to the parents of the deceased. On hearing this, the parents of the deceased wept and all of them went to the place where the deceased was lying with injuries. Villagers also gathered at that place. The witness could identify the stone which was thrown on the head of the deceased being M. O. 5. He could also identify the rod which was used by A-l being M. O. 6. He was examined by the police on the next day. In his cross-examination he stated that the place of occurrence was between 2 railway tracks. The place was not used for operating motor trucks and motor bicycles. There were no electric lights on either side of tracks but there was moonlight at that time. He denied the suggestion that there was darkness and there was no visibility at the time of occurrence. He also stated that after hearing the cries from a distance of 40 yards they ran back and as they were going to that place and saw the causing of injuries on the person of the deceased by the accused persons mentioned by him. ( 5 ) P. W. 3 also knew the accused and the deceased. He stated that every day P. W. 2, after attending to work in mahaboobabad, used to come to the theatre in Garla in which he was working and from there they would go to Rampuram during night. On that night he and P. W. 2 were going to Rampuram as the carriage of his proprietor was sought to be brought from the village to Garla since the owner of the theatre Ramanuja Reddy was native and resident of Rampuram village. By about 8. 00 or 8. On that night he and P. W. 2 were going to Rampuram as the carriage of his proprietor was sought to be brought from the village to Garla since the owner of the theatre Ramanuja Reddy was native and resident of Rampuram village. By about 8. 00 or 8. 30 p. m. he and P. W. 2 were going to Rampuram by walk. They were going on a path which was in between 2 railway tracks. After going to some distance they noticed the presence of Badeti Uppali and perugu Bixam i. e. , A-1 and A-2 near Pakala rivulet bridge on which Railway track was laid. There was moonlight. After crossing them, the witness and P. W. 2 proceeded to some distance. They noticed an iron rod in the hand of Badeti Uppali i. e. , A-1. After getting up the bridge and proceeding to some distance, they came across Kancherla venkat Reddy i. e. , the deceased riding on bicycle. They exchanged pleasantries for two minutes with him. Then they proceeded to a distance of about 30 yards. Suddenly they heard alarming cries of the deceased and they turned back and saw Badeti Uppali i. e. , A-l beating with a rod on the head of the deceased due to which he fell down. They turned back and proceeded to that place. By the time they went to that place, the deceased was dragged beyond the truck and thrown on the ground by the side of mango grove of Ganta Ilaiah. While they were so proceeding, Perugu bixam i. e. , A-2 threw a boulder on the head of the deceased after he was thrown onto the ground. They also saw 2 or 3 persons there and they became scared, turned back and went into the village. P. W. 2 informed about the incident to the parents of the deceased. All the villagers also came to the place of occurrence. In his cross-examination he admitted that there were no electricity lights near the scene of occurrence. He, however, denied that there was no moonlight. ( 6 ) THE incident took place on 19-2-1994 and it was on 8th day after rising of the moon, according to the finding of the Trial court. Now the learned Counsel for the appellants have challenged the conviction on the ground that P. Ws. He, however, denied that there was no moonlight. ( 6 ) THE incident took place on 19-2-1994 and it was on 8th day after rising of the moon, according to the finding of the Trial court. Now the learned Counsel for the appellants have challenged the conviction on the ground that P. Ws. 2 and 3 could not be believed as their presence at the place of occurrence at the time of occurrence itself was doubtful. The learned Counsel stated that their evidence cannot be believed on four grounds, firstly there was not sufficient light to identify the accused persons and it was not possible to attribute overt acts to the accused persons in the light that was available at the scene of occurrence. Secondly the presence of the witnesses was doubtful because P. W. 1, while giving first information report to the police, had not stated that these two witnesses were present at the place of occurrence as eye-witnesses. Thirdly their presence was doubtful because both the witnesses had stated that there was a dragging on the railway track itself of the deceased by the accused persons before he had been thrown near a mango garden and there were no injuries attributable to such dragging. Fourthly it was contended that if the prosecution story and the witnesses were believed, then the death had been caused, according to the doctor, by the injury caused on the head of the deceased i. e. , the first injury and that injury had been caused primarily by throwing a boulder over him which was weighing more than 50 Kgs. The doctor-P. W. 14 certified that the boulder shown to him, and according to the prosecution which was used for the purpose of injuring the deceased, weighed more than 50 Kgs. ( 7 ) NOW coming to the first circumstance that there was not sufficient light to identify the accused persons, p. W. 2 stated that he was at a distance of 40 yards from the place of occurrence at the time of occurrence, whereas P. W. 3 stated that he was at a distance of 30 yards. Between 8. 00 p. m. and 9. Between 8. 00 p. m. and 9. 00 p. m. in the moonlight of 8th day of appearance of moon, one cannot possibly identify persons at a distance of more than 100 feet and even if some one identifies, he may not be able to mention the overt acts. ( 8 ) IT was also contended that the deceased was dragged on the Railway track for a considerable time. It is common knowledge that the Railway tracks are rough tracks with stones. In such a situation the deceased would have at least received some injuries or abrasions, but there was no such injuries on the body of the deceased, therefore the presence of P. Ws. 2 and 3 at the place of occurrence at the time of occurrence becomes doubtful. P. W. 1, while giving the First Information Report had not mentioned that P. Ws. 2 and 3 were present at the scene of occurrence, although she stated in her statement that she received information through one of these witnesses. This is also a reason to disbelieve the evidence of P. Ws. 2 and 3. It was also contended by the witnesses that the injury was caused by throwing a stone on the head of the deceased. In the first instance, it is doubtful whether a person can throw over another person a stone weighing 50 Kgs. Even if it is believed, even then there is a doubt whether actually the stone was thrown because if such a stone was thrown at the head of somebody, the head would have been crushed by the impact of the stone. On the other hand, the first injury attributed to the throwing of stone was a lacerated injury. The doctor- p. W. 14, however, stated in his cross- examination that it was not true to suggest that if such a boulder was used for hitting a person, it will lead to smashing of that person. This is an opinion not strictly a medical opinion. P. W. 2 was unambiguous in his statement that the stone which was m. O. 5 was thrown over the head of the deceased when he had fallen down. P. W. 3 also stated that the deceased was hit by a rod and then he fell down. This is an opinion not strictly a medical opinion. P. W. 2 was unambiguous in his statement that the stone which was m. O. 5 was thrown over the head of the deceased when he had fallen down. P. W. 3 also stated that the deceased was hit by a rod and then he fell down. After he fell down he was dragged and thrown on the ground by the side of a mango garden and then Perugu Bixam i. e. , A-2 threw a boulder on his head. Because of this evidence we assume that the deceased was in a laying posture, whereas A-2 who had thrown the stone which was weighing more than 50 Kgs. was in a standing posture. The stone must have been thrown from a height of 4 to 6 feet because in order to throw such a stone of 50 Kgs. it has to be picked up and then the arms have to be raised for throwing it. Therefore the distance between the head of the deceased and the throwing position would have been somewhere between 5 and 6 feet and it is common sense that if a stone is thrown over the head of a person from a height of 5 or 6 feet which weighs 50 Kgs. the head would be crushed and would not have resulted only lacerated injury. ( 9 ) LASTLY it was contended that both p. Ws. 2 and 3 stated that they went to the house of the deceased and informed his parents, whereas the mother of the deceased i. e. , P. W. I stated that only P. W. 2 came to her and informed her about the occurrence. P. W. 8 who is the father of the deceased did not even state that any one of them met him. He stated that while he was working in his fields, his second son came and informed him that P. W. 2 had come to their house and informed about the incident. He also does not speak about the presence of P. W. 3. For these reasons, we consider that it is doubtful whether P. Ws. 2 and 3 were present at the time of occurrence at the place of occurrence. ( 10 ) FOR the reasons stated hereinabove, the appeals are allowed, convictions and sentences are set aside and the appellants are acquitted. For these reasons, we consider that it is doubtful whether P. Ws. 2 and 3 were present at the time of occurrence at the place of occurrence. ( 10 ) FOR the reasons stated hereinabove, the appeals are allowed, convictions and sentences are set aside and the appellants are acquitted. They shall be released forthwith, from custody if not required in any other case.