G. BIKSHAPATHY, J. ( 1 ) THE Criminal Appeal is directed against the judgment of the learned I Addl. Sessions judge, Ranga Reddy Distirct in S. C. No. 614 of 2002, dated: 21 -5-2003 by which E. Arjun (A-1), E. Raju (A-2) Jerupula Dass (A-3), and e. Swamy (A-4) were convicted for the offences punishable under Section 302 read with Section 34 Indian Penal Code and sentenced each of them to suffer imprisonment for Life and to pay a fine of rs. 2,000/- in default to suffer Simple imprisonment for one year. ( 2 ) THE substance of the charge against the accused is that on 28-1-2002 at 3. 45 p. m. the accused in furtherance of their common object caused the death of Atlabaksh (here in after called the deceased") at Ayyappa society Road, Madhapur, Ranga Reddy district. ( 3 ) THE case of the prosecution as unfolded during the trial is as follows. P. W. I is the wife of the deceased. The deceased was doing Real estate business. P. W. 1 was working as a Stenographer in apollo Hospital, Jubilee Hills. It is the case of the prosecution that A-1 constructed a house opposite to their plot obstructing the passage. P. W. 1 and her husband informed the municipality. Even though Municipality has issued notice, no further action was taken and therefore, P. W. 1 filed Writ Petition in high Court and the High Court directed the commissioner-P. W. 15 to remove the illegal constructions. Accordingly, on 28-1-2002 at about 2. 40 p. m. P. W. 2, Town Planning supervisor, P. W. 4 building oversear and p. W. 3 and others proceeded to the disputed site and demolished the same as per the directions of the High Court. There was also a vegetable shop and the Municipal people removed the vegetable shop and demolished the structure. While the process of demolition was going on, at about 3. 40 p. m. the deceased was proceeding from towards the road from his house. Atthat time, A-1, A-3 and A-4 went behind and held him near STD booth. In the meanwhile, A-2 took a pestle from the saman in his house and beat the deceased. Whiie he was being beaten by A-2, A-1 took a stone and hit the deceased on his head. A-3 also picked up another granite stone and hit the deceased. Atthat time, A-1, A-3 and A-4 went behind and held him near STD booth. In the meanwhile, A-2 took a pestle from the saman in his house and beat the deceased. Whiie he was being beaten by A-2, A-1 took a stone and hit the deceased on his head. A-3 also picked up another granite stone and hit the deceased. By the time, P. W. 1 went to the scene, the accused ran away. The deceased was found dead. Therefore, P. W. 1 got a report Ex. P-1 drafted by one Mohan, an employee of Apollo hospital and presented the same in Madapur police station. P. W. 24 sub-Inspector of Police received Ex. P-1 on 28-1-2002 at 4 p. m. and registered the same as a case in Crime No. 19 of 2002 under section 302 IPC and issued F. I. R. Ex. P-21. P. W. 15 Inspector of Police took up the investigation from P. W. 14, he held inquest over the dead body under Ex. P-22 inquest report. Ex. P-23 is the panchanama and scene of offence panchanama. P. W. 25 seized granite stone M. Os. 1 and 2 apart from other things. After inquest, the dead body was sent for post mortem examination. The Civil Asst. Surgeon conducted the autopsy over the dead body on 29-1-2002 at 10. 40 a. m. and issued Ex. P-20 post mortem report. On 30-1-2002, the accused were arrested and his confessional statement was recorded in the presence of P. W. 17. After completion of investigation, the charge sheet was filed in the Court of Adl. Judicial First Class magistrate, West and South, L. B. Nagar, ranga Reddy District, who registered the same as P. R. C. No. 43 of 2002. Since the offence under Section 302 IPC is exclusively triable by the Court of Sessions, the learned magistrate committed the same to the sessions Division, Ranga Reddy District. The learned Sessions Judge, Ranga Reedy district registered the same as S. C. No. 614 of 2002 and made over the case for trial and further disposal according to law to the I Addl. Sessions Judge, Ranga Reddy District. ( 4 ) AFTER hearing the prosecution and the accused, the trial judge framed the charge under Section 302 read with Section 34 IPC. The accused pleaded not guilty and they claimed to be tried. Sessions Judge, Ranga Reddy District. ( 4 ) AFTER hearing the prosecution and the accused, the trial judge framed the charge under Section 302 read with Section 34 IPC. The accused pleaded not guilty and they claimed to be tried. ( 5 ) IN support of the prosecution, 25 witness were examined and Ex. P-1 to-P-25 were marked. P. Ws. 2 to 16 and 19 and 22 did not support the case of the prosecution and they were declared hostile. P. Ws. 2 and 17 were examined as witness to the occurrence. The learned trial Judge on the basis of the evidence available on record, recorded a finding that the prosecution has been able to establish the guilt of the accused and accordingly convicted them for the offence under Section 302 read with Section 34 IPC and sentenced as detailed above by a judgment dated: 21-5-2003. Assailing the correctness of the said judgment, the present appeal has been preferred by the accused no. 1 to 4/appellants. ( 6 ) THE learned Senior Counsel appearing for the Appellants submit that the finding recorded by the trial Court is wholly unsustainable and there is no evidence to reach such a conclusion. The learned trial judge based on surmises and conjectures found the accused guilt of the offence. The learned counsel would submit that there were no eyewitnesses except P. Ws. 1 and 17 and their evidence cannot be believed under any circumstances. Even the medical evidence also does not conform to the injuries alleged to have caused by the accused and the stone with which some of the injuries were alleged to have caused were not recovered nor were they sent to Forensic Science Laboratory. Thus, he submits that there is no reliable and dependable evidence available on record to convict the accused and they were implicated for inter se disputes. Therefore, he submits that the judgment of the trial Judge is liable to be set aside and the accused are entitled for acquittal. ( 7 ) ON the other hand, the learned Public prosecutor, however, submits that the incident had taken place in the broad day light in the afternoon and the P. W. 1 who is none-else-then that wife of the deceased was prime witness. Added to this, P. W. 17 corroborated the testimony of P. W. 1 in all material particulars. ( 7 ) ON the other hand, the learned Public prosecutor, however, submits that the incident had taken place in the broad day light in the afternoon and the P. W. 1 who is none-else-then that wife of the deceased was prime witness. Added to this, P. W. 17 corroborated the testimony of P. W. 1 in all material particulars. The motive was also established namely that P. W. 1 filed a case in the High Court seeking directions to the municipal Commissioner, Sherilingampally to demolish the unauthorised constructions raised by the A-1 and the demolition was done by the municipal officials in pursuance of the directions of this Court and therefore, the accused bore grudge against the deceased. Thus, the learned Public prosecutor submits that there is clinching, dependable evidence to sustain the conviction and sentences and he submits that the appeal is liable to be dismissed. ( 8 ) THE issue that arises for consideration is whether the judgment of the trial Court is liable to be set aside and the prosecution has been established the guilt of the accused beyond reasonable doubt. ( 9 ) IT is on record A-1 and A-2 are the real brothers and they are doing Real estate business and deceased was also doing real estate business. The wife of the deceased is working in the Apollo Hospital, Jubilee Hills as a Stenographer. It is also on record that when A-1 tried to make some illegal constructions, which blocked the ways to go to the house of the deceased. , a complaint was lodged before the municipal authorities and thereafter the Writ Petition was filed in the High Court. As per the evidence of municipal officials P. Ws. 2, 3, 4 and 18, it is on record that on 28-1-2002 they demolished the illegal constructions raised by A-1 at 2-30 p. m. It is also on record that there was a vegetable shop, which was got vacated and it structures were also demolished. It is established by evidence that on the date of the incident, the deceased died near the s. T. D. booth. The doctor, who conducted the autopsy over the dead body of the deceased found the following injuries:" (1) Laceration injury of 7x3. 5 cm. cavity deep and obliquely placed present over left frontal region place 8 cm. above inner and of left eye brow and 11 cms. The doctor, who conducted the autopsy over the dead body of the deceased found the following injuries:" (1) Laceration injury of 7x3. 5 cm. cavity deep and obliquely placed present over left frontal region place 8 cm. above inner and of left eye brow and 11 cms. above left ear with open and comunited fracture of left frontal and partial regions of skull. The left cerebraila of brains is partially crushed and partial expelled deiffuse and subdural and subrachonold haemorrhage present over the braing. (2) Lacerated injury of 8 x 2 cms. cavit deep consverely present over left partietal region clalp present 9 cms above and 4 cms. away from midline with open fracture skull over left parietal region skull. (3) Lacerated injury of size 2 x 2 cms. obliquely placed present over forehead towards left placed just above the outer and of left eye brow. (4) Lacerated injury of size 3 x 2 cms. vertically placed present over left side of face placed just before the trague of the left ear. (5) Grazed abrasion of size 12 x 6 cms. Obliquely placed present over left side of face, left check and left jaw. He was of the opinion that the cause of death was due to head injury. He also opined that the injuries 1,2,3 and 4could be possible with m. O. I pistle. ( 10 ) THE question that arises for consideration is whether the involvement of the accused-Appellants is established in this case? ( 11 ) THE learned trialjudge only based his convicted on the basis of the evidence of p. W. 1 and P. W. 17. According to theevidence of P. W. 1, on the date of the incident, municipal authorities demolished the unauthorised structures and at that juncture, A-1, A-3 and a-4 went behind the deceased and stopped him near STD booth. In the meanwhile, A-2 took pestle from his samans from his house beat the deceased, while A-2 was beating deceased, A-1 took the big stone and hit the deceased, A-3also took another granite stone and hit the deceased. When she reached the scene all the accused ran away. However, she did not state as to how she came to be present at the time of the incident, when she is an employee. When she reached the scene all the accused ran away. However, she did not state as to how she came to be present at the time of the incident, when she is an employee. But, in the cross examination, she states that she took permissions and went to the house at 2-50 p. m. The Apollo hospital is 4 to 5 k. ms. distance from the house. She gave a complaint to the police which was drafted by one Mohan and the said Mohan was not examined. She further stated that she did not know, who handed over Ex. P-1 to the police. We are unable to place any reliance on the evidence of P. W. 1 for the reason that she went to the hospital at 9 a. m. and how she came back and for what purposes she obtained permission is not borne out by evidence available on record. It is also not understood as to when the said mohan met her and under what circumstances the compliant came to be drafted by the said Mohan, when she herself is an educated lady being Graduate. Added to this, the said Mohan was not examined to establish that he has drafted the complaint, even she also could not explain as to why the said Mohan was present at the sence of offence. She had further stated that she did not see P. W. 17-D. Christopher Reddy at all at the scene of offence whereas according to p. W. 17 he is the eyewitness, who saw the incident. ( 12 ) FURTHER it is also to be noted that when she stated that A-1 and A-3 had hit the deceased with granite stones, no stone injuries are available or appearing on the body of the deceased, only the laceration injuries were found by the doctor and the doctor also opined that the said injuries could be caused by pestle. When A-1 and A-3 caused injuries with stones and A-2 beat the decease with pestle, there were only four injuries on the body of the deceased. Even the evidence with regard to the injuries alleged to have been inflicted by A-1 and A-3 cannot be correlated to medical evidence. According to her evidence, no overt act was alleged against A-4, except stating that he along with a-1 and A-3 ran away behind the deceased. Even the evidence with regard to the injuries alleged to have been inflicted by A-1 and A-3 cannot be correlated to medical evidence. According to her evidence, no overt act was alleged against A-4, except stating that he along with a-1 and A-3 ran away behind the deceased. Exp-1 is the complaint alleged to have been drafted by one Mr. Mohan on the basis of which a crime was registered. According to ex. P-1, while municipal authorities were dismissing the unauthorized construction, the accused beat the deceased with pestle (ponder) and also beat with granite stones and what was stated in the evidence is altogether a different story. She did not state individual overt acts on the part of A-1 to a-3. Under these circumstances, we only find out that in order to implicate the accused she came out with inconsistent and untruthful version. Hence, the evidence of P. W. 1 cannot be believed. ( 13 ) ACCORDING to P. W. 17, he is a real estate agent and he knows the accused and the deceased. On the date of the incident, he stopped the vehicle at sweet shop, at 250 fts. away from the incident and he observed A-1, a-3 and A-4 running behind the deceased, a-1 was holding the deceased by collar. A-2 came running from the house and hit the deceased with pestle on his hand and back and head. A-4 held that leg. In the meanwhile, a-1 brought a granite stone and hit the deceased and A-3 also brought a granite stone and hit the deceased. In the cross examination, he stated that he was involved in the crime under Section 457 and 379 I. P. C. He also accepted that a private complaint was filed against him under Sections 452 and 506 I. P. C. , but that was closed. Yet, another case was filed against him under explosive Substances Act. But, be that as it may it has to be considered whether he was present and witnessed the incident on the date when the incident had taken place. In the cross examination he stated that the did not try to intervene and stop the acts of the accused. His statement was record by the police on 2-2-2002. According to this witness, he was alleged to have witness the incident at sweet meat shop, but as per the scene of offence panchanama Ex. In the cross examination he stated that the did not try to intervene and stop the acts of the accused. His statement was record by the police on 2-2-2002. According to this witness, he was alleged to have witness the incident at sweet meat shop, but as per the scene of offence panchanama Ex. P-23, there is no reference to the sweet meat shop. Even the investigation Officer-P. W. 25 did not state that he had noticed the sweet meet shop. Further, the narration of the events are not coinciding the narration of the incident as made by P. W. 1. If really he knew the deceased, we fail to understand why he did not take active part in informing the police and figuring as eye witness in thef irst instance itself. Added to this, when P. W. 1 was alleged to be there at the scene of offence and P. W. 1 also knows the P. W. 17 it is not understood as to why P. W. 17 did not go to P. W. 1 and console if he was eally at the scene. The natural conduct of a human being who know the deceased and when he was found the deceased dead, his normal reaction would be to render possible assistance to the wife of deceased P. W. 1. But, he cannot be expected to vanish from the scene and appear before the police after three days. His conduct is most unnatural. Further, P. W. 1 herself has stated that P. W. 17 was not there at the sense of offence. Thus, there is any amount of inconsistency between the evidence of P. W. 1 and P. W. 17. Even the defence has examined two witnesses. The lower court did not belief their evidence. But, D. W. 2 is the News contributor of Vaartha daily. According to him, he want to the scene of offence at 4. 30 p. m. and found the dead body of the deceased in the pool of blood and there after while he was inquiring as to how the incident had happened, one lady came and started weeping and the news was also published in ex. D-1 paper. According to him, he want to the scene of offence at 4. 30 p. m. and found the dead body of the deceased in the pool of blood and there after while he was inquiring as to how the incident had happened, one lady came and started weeping and the news was also published in ex. D-1 paper. From this, it is evident that the is an independent witness and he has categorically stated that there was no person at the dead body and only after he arrived, p. W. 1 came weeping which goes to show that P. W. 1 was not an eyewitness and she reached after he incident, This gives any amount of suspicion as to the presence of either P. W. 1 or P. W. 17. ( 14 ) FROM the over all consideration of the evidence as aforesaid, we find that the presence of P. W. 1 is not established and the presence of P. W. 17 is very much doubtful and his evidence is neither reliable nor sufficient for conviction of the accused. As already observed by us no overt acts were attributed to A-4. With regard to A-1 and A-3, it was alleged that they beat with granite stones and there were only four injuries on the deceased which could be caused by pestle and thus it cannot be established that a-4, A-1 and A-3 had committed the offence. Underthose circumstances, it is most unsafe to find A-2 guilty of the offence on the basis of sole, unreliable and uncorroborated testimony of P. W. 17. The trial court failed to appreciate these circumstances in a proper perspective. Thus, we find that the judgment of the lower court is not sustainable. Accordingly, it is set aside and the accused are acquitted of the charges. The appeal is accordingly allowed and the accused shall be set at liberty forthwith, if they are not required in any other case.