M. C. JAIN, J. Four persons, namely, Lakhan Singh, Ziledar Singh, Sobaran Singh and Shambhoo Singh were tried before the Vth Additional Sessions Judge, Farrukhabad in Sessions Trial No. 348 of 1979. Two of them, namely, Lakhan Singh and Ziledar Singh were acquitted whereas Sobaran Singh and Shambhoo Singh were convicted under Section 302, I. P. C. read with Section 34, I. P. C. and each sentenced to life imprisonment by judgment dated 28-1-1980. They have preferred this appeal. 2. Out of them, Sobaran Singh died during pendency of the appeal and the appeal has abated so far as he is concerned. 3. The incident occurred on 21-4-1979 at about 6. 30 p. m. in village Mansukhpurwa, P. S. Indergarh, then District Farrukhabad (presently District Kannauj ). The F. I. R. was lodged on 21-4-1979 at 9. 15 p. m. by Amar Singh PW 1 (eye-witness ). The distance of the police station from the place of occurrence was about 2 miles. The deceased was Daya Shankar (brother of the informant ). In 1973 the murder of the father of accused Lakhan Singh was committed and in that case the deceased Daya Shankar and his brother Amar Singh informant were involved as accused persons. The case against them ended in acquittal in 1974. On account of their acquittal, the accused persons felt enmity qua the complainant and his brother. The deceased Daya Shankar used to go to Khalihan in the evening. On the fateful day also he had gone to his Khalihan. The complainant Amar Singh and his brother Kashi Ram were unloading Lank from the bullockcart in their own Khalihan which was near the Khalihan of the deceased. The witness Sarman Singh PW 2 was nearby in his Khalihan. The four accused came from south-west and surrounded the deceased Daya Shankar. Lakhan Singh was armed with a small gun, Ziledar Singh had a spear, Sobaran Singh had a Pharsa and Shambhoo Singh had a lathi. On reaching near Daya Shankar, Lakhan Singh exhorted whereupon Sobaran Singh, Ziledar Singh and Shambhoo Singh started assaulting the deceased with their weapons. On the alarm raised by the deceased, the complainant and his brother Kashi Ram rushed up. In the meantime, Lakhan Singh opened fire from his gun. The witnesses Sarman Singh PW 2, Balwant PW 3 and Sri Krishan also came forward. On the alarm raised by the deceased, the complainant and his brother Kashi Ram rushed up. In the meantime, Lakhan Singh opened fire from his gun. The witnesses Sarman Singh PW 2, Balwant PW 3 and Sri Krishan also came forward. They challenged the accused persons whereupon they ran away after causing injuries to the deceased with their weapons. Due to fear, the witnesses did not chase them. Daya Ram succumbed to his injuries then and there. 4. On F. I. R. being lodged, the investigation was taken up by S. I. Ram Krishan Tripathi PW 7. 5. Post-mortem over the dead body of the deceased was conducted by Dr. B. P. Bhatanagar PW 5 on 23- 4-1979 at 4 p. m. He was aged about 40 years and about two days had passed since he died. In all, the following 13 injuries were found on his person: (1) Incised wound 2" x 1/2" x bone deep on the top of skull margin inverted. (2) Lacerated wound 1" x 1/2" x bone deep on the left side forehead 1/2" above root of nose. (3) Lacerated wound 1/2" x 1/2" x bone deep 1" lateral to injury No. 2. (4) Lacerated wound 1" x 1/2" x bone deep on the outer surface of nose with fracture of underlying cartilage and bone. (5) Lacerated wound 1/2" x 1/4" x muscle deep on the front surface of upper lip with fracture of upper jaw. (6) Lacerated wound 1" x 1/2" x bone deep on the anterior surface of lower jaw leading to fracture of lower jaw. (7) Lacerated wound 2" x 1" on the anterior surface of neck only muscle deep. (8) Abraded contusion 2" x 1" on the left side chest 2" below left nipple. (9) Lacerated wound 1" x 1/2" x muscle deep on the vesetoral aspect of left palm in between thumb and index finger. (10) Abraded contusion 2" x 1" on the top of left shoulder. (11) Incised wound 3" x 1/2" x bone deep on the anterior aspect of right thigh in upper 1/3rd. (12) Multiple abraded contusion each varying different sizes on the anterior and lateral aspect of right thigh in the area of 9" x 6". (13) Multiple abraded contusion each varying different sizes on anterior and lateral aspect of left lower thigh and knee joint. 6. Obviously, there was no injury of fire-arm. 7. (12) Multiple abraded contusion each varying different sizes on the anterior and lateral aspect of right thigh in the area of 9" x 6". (13) Multiple abraded contusion each varying different sizes on anterior and lateral aspect of left lower thigh and knee joint. 6. Obviously, there was no injury of fire-arm. 7. The cause of death was shock and haemorrhage as a result of ante-mortem injuries. 8. The accused persons pleaded false implication. 9. The prosecution in all examined seven witnesses, out of whom, Amar Singh complainant PW 1, Sarman Singh PW 2 and Balwant PW 3 were the eye-witnesses. Constable Sri Ram Tiwari PW 4 had taken the dead body for post-mortem. Dr B. P. Bhatnagar PW 5 had conducted the post-mortem over the dead body of the deceased. The Head Constable Shiv Karan Singh PW 6 had scribed the chik F. I. R. and Ram Krishan Tripathi PW 7 was the Investigating Officer. 10. As said above, two of the accused persons, namely, Lakhan Singh and Ziledar Singh were acquitted, while two others were convicted who are in appeal before this Court. 11. At the hearing of the appeal, none appeared from the side of the appellants, though they are represented on record by Sri A. R. Gupta and Sri S. S. Tiwari, Advocates. We have heard Sri G. S. Bisariya, learned A. G. A. from the side of the State and have examined the record of the lower Court which has been summoned before us. 12. As the appellant Sobaran Singh has already died, the Court is only concerned with the other appellant Shambhoo Singh. 13. The case rests on the testimony of two eye-witnesses, namely, Amar Singh PW 1 and Balwant PW 3. Though Sarman Singh PW 2 was also examined as an eyewitness, but he did not support the prosecution case against the accused, saying that by the time he reached the spot, assailants had run away. The presence of Amar Singh PW 1 at the spot at the time of incident is doubtful. It is pertinent to state that he was equally bracketed with his deceased brother Daya Shankar qua the accused. It would be recalled that the father of accused Lakhan Singh, Ziledar Singh and Sobaran Singh had earlier been murdered in which Amar Singh PW 1 and deceased Daya Shankar were the accused. It is pertinent to state that he was equally bracketed with his deceased brother Daya Shankar qua the accused. It would be recalled that the father of accused Lakhan Singh, Ziledar Singh and Sobaran Singh had earlier been murdered in which Amar Singh PW 1 and deceased Daya Shankar were the accused. That murder had taken place in 1973 and Amar Singh PW 1 and Daya Shankar were acquitted in 1974 as per the statement of Amar Singh PW 1. That was the grudge nursed by Lakhan Singh, Ziledar Singh and Sobaran Singh against the deceased and Amar Singh PW 1. In case Amar Singh PW 1 was really present at the spot, the grudge being identical against him too, he would not have been spared unarmed by the accused Lakhan Singh, Ziledar Singh and Sobaran Singh. He was unarmed whereas these three and present appellant Shambhoo Singh were dangerously armed. Judged in this perspective, it is not free from doubt that Amar Singh PW 1 was actually present at the scene of the incident and witnessed it. The presence of Balwant PW 3 is equally doubtful. He did not have any field or Khalihan near the place of the incident which is clear from the statement of Amar Singh PW 1. However, Balwant PW 3 has insisted that he was scrapping grass nearby the scene of occurrence at the time of the incident. He also stated that sun had set about an hour before but it had not become complete darkness. It does not stand to reason that he would have been scrapping grass at that hour of the time when even sun had gone down. Indeed, scrapping grass could not be so urgent that it required to be done even after sun had set and darkness had started enveloping the atmosphere. We are, therefore, of the view that the reliance could not be placed on the testimony of these two so called eye-witnesses Amar Singh PW 1 and Balwant PW 3. 14. Further, there is every possibility of Shambhoo Singh having been falsely implicated in this case. The reasons may be stated. The prosecution case is that he was the associate of other three accused-real brothers. He is said to be the Khandani of remaining three accused Lakhan Singh, Ziledar Singh and Sobaran Singh. 14. Further, there is every possibility of Shambhoo Singh having been falsely implicated in this case. The reasons may be stated. The prosecution case is that he was the associate of other three accused-real brothers. He is said to be the Khandani of remaining three accused Lakhan Singh, Ziledar Singh and Sobaran Singh. However, it has come down in cross-examination of Amar Singh PW 1 that in the case of murder of the father of Lakhan Singh, Ziledar Singh and Sobaran Singh, he (Shambhoo Singh) was a prosecution witness, but he was not produced as a witness in that case. Usually, the prosecution does not produce a cited witness when he is not inclined to support its case. Since despite being the prosecution witness Shambhoo Singh was not produced from the side of prosecution in the case of murder of the father of Lakhan Singh, Ziledar Singh and Sobaran Singh, it should be justifiably inferred that he was not inclined to support the prosecution case against Amar Singh PW 1 and Daya Shankar for the murder of the father of Lakhan Singh, Ziledar Singh and Sobaran Singh. Now, it spills beyond comprehension that a person who was not even inclined to appear as a witness against Amar Singh PW 1 and Daya Shankar deceased in favour of the case of the murder of the father of Lakhan Singh, Ziledar Singh and Sobaran Singh, would join them (other three accused) in the murder of Daya Shankar. It has clearly come in the statement of Amar Singh PW 1 that he and his family had no enmity with the accused excepting the murder of father of Lakhan Singh, Ziledar Singh and Sobaran Singh. Truth seems to be other way. Since Daya Shankar met a violent death, Amar Singh PW 1 wove a story naming Shambhoo Singh too as one of his assailants to wreak vengeance. 15. For the reasons stated above, we do not find the prosecution evidence of Amar Singh PW 1 and Balwant PW 3 worth believing against the appellant Shambhoo Singh. He came to be convicted and sentenced by the trial Court without an in-depth analysis of the evidence on record and attending circumstances. No doubt, the deceased received a number of blunt weapon injuries but that alone was not sufficient to record the finding of guilt against the accused Shambhoo Singh. He came to be convicted and sentenced by the trial Court without an in-depth analysis of the evidence on record and attending circumstances. No doubt, the deceased received a number of blunt weapon injuries but that alone was not sufficient to record the finding of guilt against the accused Shambhoo Singh. It is not at all proved that he participated in the assault and as such the conviction and sentence passed against him are bad. 16. We finally order as under: 17. The appeal abates so far as Sobaran Singh is concerned as he died during pendency of the appeal. The appeal stands allowed in respect of appellant Shambhoo Singh. His conviction and sentence passed by the trial Court are set aside and he is acquitted. He is already on bail. 18. Let a copy of this judgment along with record of the case be immediately sent to Court below for necessary entries in the relevant register under intimation to this Court within two months. Appeal allowed. .