AMAR SARAN, J. This Criminal Appeal arises from a judgment and order dated 1-9-1981, passed by the IVth Additional Sessions Judge, Agra in Sessions Trial No. 429 of 1980, whereby the appellants Mathura Prasad, Bhagwan Singh alias Dhurra, Ashok, Kamla alias Kamal Singh, Ramesh, Jamuna Das and Shripal had been convicted and sentenced to undergo imprisonment for life under Section 302/149 IPC. The appellants, Jamuna Das, Bhagwan Singh, Mathura Prasad, Ramesh, Kamal Singh and Ashok had further been convicted under Section 148 IPC and sentenced to two years rigorous imprisonment and a fine of Rs. 500 each, and in default, to further undergo rigorous imprisonment for a period of six months each. The appellant, Shripal had been convicted under Section 147 IPC and sentenced to one years rigorous imprisonment and an additional fine of Rs. 500 and, in default of payment of fine, he was to undergo rigorous imprisonment for a period of six months. The sentences were to run concurrently. 2. We have heard Shri P. N. Mishra, senior Counsel, assisted by Shri Nasiruzzaman and Shri Rakesh Chandra, (who appeared with him for appellants Bhagwan Singh, Kamal Singh and Ashok ). We have also heard the learned AGA for the State. We have perused the judgment of the trial Court and also the entire evidence on record. 3. As the appellant No. 1 Jamuna Das, appellant No. 4 Ramesh and appellant No. 7 Shripal have died during the pendency of this Criminal Appeal, hence, their appeal has already abated by order of this Honble Court dated 19-11-2003. 4. The prosecution case was that the deceased Mohd. Umar, the informant Majjo PW 1, who is also an eye-witness, Ajjo PW 3 and Rashid PW 5, the other two eye-witnesses, were returning from a cattle fair in Kundol and proceeding towards their residence in Mohalla Pakki Sarai, PS Tajganj, District Agra on 18- 6-1980. The deceased and the witnesses had disembarked from the track, which had carried them from Kundol at the nursery near Basai, and at the fateful time, they were walking towards their homes. A little ahead of the Gobar Chauki crossing, en route to Pakki Sarai, at about 6. 30 p. m. the deceased and the witnesses were accosted by the accused Jamuna Das and Ramesh residents of Gobar Chauki, Kamla, Shripal, Dhurra, Ashok residents of Bagrajpur and Mathura Prasad resident of Anand Nagar. A little ahead of the Gobar Chauki crossing, en route to Pakki Sarai, at about 6. 30 p. m. the deceased and the witnesses were accosted by the accused Jamuna Das and Ramesh residents of Gobar Chauki, Kamla, Shripal, Dhurra, Ashok residents of Bagrajpur and Mathura Prasad resident of Anand Nagar. The accused Jamuina Das, and Ashok were armed with ranpis (weapons used for cutting leather), the accused Kamla, Mathura Prasad and Dhurra were armed with chura (daggers), the accused Ramesh, was armed with a knife and the accused Shripal carried a lathi. The accused Jamuna Das is said to have cried out on seeing the deceased and the witnesses that all these salas are kasais of Pakki Sarai and they should be surrounded and beaten. Thereupon, all the seven accused persons fell upon the party of the deceased. The witnesses ran away from the spot, however, the accused succeeded in surrounding and catching hold of the deceased Mohd. Umar and they began to assault him. The witnesses reached their village, and on their alarm, other villagers arrived who were told about this incident. On return to the spot with the villagers, they found Mohd. Umar lying dead there in a pool of blood. Majjo PW 1, thereafter, proceeded to the Police Station for lodging the report, whilst the villagers remained with the dead body. The report of this incident (Ex. Ka-1) was lodged as aforesaid by Majjo at P. S. Tajganj, Agra on 18-6-1980 at about 8. 00 p. m. and on that basis, a case at crime No. 176 under Sections 147, 148, 302 and 149 IPC was registered against the accused persons, by HC Arjun Singh, PW 4 in the absence of the investigating officer, PW 6, SI Rangla Yadav. According to PW 6, SI Ranglal Yadav, he was already present at Pakki Sarai in connection with investigation of another case at Case Crime No. 175 of 1980 alongwith the SHO, where the C. C. Chandrabhan brought him the papers of this case for commencing with the investigation. He thereafter, proceeded to the place of incident of the present case, prepared the inquest (Ext. Ka-11), Khaka Nash (Ext. Ka-12) and Challan Nash (Ext. Ka-13) with the help of a petromax light. He thereafter, proceeded to the place of incident of the present case, prepared the inquest (Ext. Ka-11), Khaka Nash (Ext. Ka-12) and Challan Nash (Ext. Ka-13) with the help of a petromax light. He sent the dead body after sealing it for post- mortem through Constables Ram Laraite Mishra and Keshav Prasad for post-mortem at the District Hospital, Agra, alongwith the letters for post-mortem (Exts. Ka-14, Ka-15 and Ka-16 ). He also collected blood stained and plain earth from the place of incident and sealed them separately, and prepared a Fard (Ext. Ka-17 ). A potli with some food items was lying near the dead body, which was given in the custody of Babu, the deceaseds elder brother. Its Fard is marked as Ext. Ka-18. Majjo PW 1s statement was recorded at the spot. Due to dearth of light, as the petromax was not functioning properly, hence, the site plan (Ext. Ka-19) was prepared the next day, i. e. on 19-6-1980 on the pointing out of the informant. The chemical examiner and serologists reports have been received which were marked Ext. Ka-20 and Ext. Ka-21. After completion of investigation, PW 6 submitted a charge-sheet on 2-7-1980. (Ext. Ka-22 ). The case was committed to the Court of Sessions by the CJM, Agra on 8-8-1980. 5. Charges under Sections 148, 302, 149 IPC were framed against accused Mathura Prasad, Dhurra @ Bhagwan Singh, Kamla @ Kamal Singh, Ashok, Ramesh and Jamuna Das, and a charge under Sections 147, 302, 149 was framed against accused Shripal. 6. The plea of all the accused was denial. All the accused pleaded not guilty to the charge, they stated that they had been falsely, implicated due to enmity and claimed trial. Accused Mathura Prasad has also pleaded alibi, and claimed to be present in a meeting of the Ministerial Staff Association of the S. N. Medical College where he worked as a clerk at the time of incident. The appellant, Kamal Singh, further asserted that on the date of occurrence, i. e. on 18-6-1980 at about 4. 00 p. m. he had gone to lodge a report at P. S. Tajganj as his elder brother, Pratap Singh Jatav was stabbed by one Bengali Musalman and he returned from the police station only at 9. 00 or 9. 30 p. m. on that day. 00 p. m. he had gone to lodge a report at P. S. Tajganj as his elder brother, Pratap Singh Jatav was stabbed by one Bengali Musalman and he returned from the police station only at 9. 00 or 9. 30 p. m. on that day. The accused have even filed a copy of the G. D. Report No. 44, dated 18-6-1980 regarding registration of the case at Case Crime No. 175. (Ext. Kha-1 ). 7. In addition to the witnesses mentioned above, the prosecution examined PW 2, Dr. S. C. Srivastava, who conducted an autopsy on the body of the deceased Mohd. Umar on 19-6-1980 at about 1. 00 p. m. and PW 7 Ram Singh, who was a formal witness who proved the chik and G. D. Reports relating to the earlier Case Crime No. 175/80. Four witnesses DW 1 to DW 4 were examined by the defence. DW 1 Sharafat Hussain, Secretary of the Ministerial Staff Association was examined for proving that the appellant Mathura Prasad, who was working as a clerk in S. N. Medical College, Agra, was present in a Ministerial Staff Association meeting of the college on the date of occurrence, i. e. on 18-6-1980, which started at about 5. 30 p. m. and continued till 6. 30 p. m. DW 2 Dwarika Prasad, Advocate and Oath Commissioner, DW 3 Govardhan Das, clerk of the oath commissioner, DW 4 Kum. Pushpa Lata Misra, Advocate, were examined for proving that PW 1 Majjo had filed an affidavit (Ex. Kha-6) before the Executive Magistrate, resiling from the prosecution case. 8. PW 1 stated that he was the nephew of the deceased and on the date of incident, at 6. 30 p. m. they were returning from attending the market in Kundol and they had crossed the Gobar Chowki crossing and were on the road to Pakki Sarai when they found the seven accused persons named above waiting for them, carrying the weapons, as described above. On the exhortation of Jamuna Das that they were all the butchers of Pakki Sarai and they should be surrounded and killed, all the seven persons fell upon the deceased and the accused. They caught hold of the deceased, whilst PW 1 Majjo, who witnessed the incident, ran away from the spot. On the exhortation of Jamuna Das that they were all the butchers of Pakki Sarai and they should be surrounded and killed, all the seven persons fell upon the deceased and the accused. They caught hold of the deceased, whilst PW 1 Majjo, who witnessed the incident, ran away from the spot. He reached his village Pakki Sarai and on his alarm, his fellow villagers gathered who returned to the place of incident with him. They found the body of Mohd. Umar lying there in a pool of blood. Majjo, thereafter, proceeded to lodge the report. There was no other dispute in the village on the date in question. He had, however, been told by the residents of the Basti that there had been a quarrel between Pratap Singh Jatav and Bengali, S/o Ali Khan. 9. PW 3 Ajjo also claimed to be returning from the market in Kundol alongwith Mohd. Umar the deceased, Rashid, PW 5 and Majjo PW 1. Initially, they traveled by a truck, but they got off near the nursery and thereafter, they were proceeding on foot to their village Pakki Sarai. After going ahead of the crossing of Gobar Chowki, at about 6. 30 p. m. they found the seven accused named above lying in wait for them. Jamuna Das and Ashok carried lathis, Kamal Singh, Dhurra and Mathura Prasad carried churras, Shripal had a lathi and Ramesh was carrying a knife. On the cry of Jamuna Das that they were all butchers of Pakki Sarai and they should be (sic) and killed, the accused persons surrounded the deceased Mohd. Umar Rashid and the witness Ajjo ran from the spot and stopped at a distance of about 30-35 paces. Majjo did not even stop whilst running away to his village. After 25 to 30 minutes, residents of the Basti arrived and by that time, Mohd. Umar had died and the accused had escaped. One day prior to the incident, there was a dispute between Pratap Singh Jatav, brother of Kamal Singh and Bengali Muslim. 10. PW 5 Rasheed, the last eye-witness, deposed on oath that on the date of the incident, four persons, Ajjo, Majjo, the deceased Mohd. Umar and Rashid were returning from the market in Kundol. They were accosted by the seven accused persons named above at about 6. 30 p. m. at the crossing of Gobar Chowki. 10. PW 5 Rasheed, the last eye-witness, deposed on oath that on the date of the incident, four persons, Ajjo, Majjo, the deceased Mohd. Umar and Rashid were returning from the market in Kundol. They were accosted by the seven accused persons named above at about 6. 30 p. m. at the crossing of Gobar Chowki. The accused Jamuna Das and Ashok were armed with lathis, Kamal Singh, Mathura Prasad, Dhurra carried churras, Ramesh was armed with a knife and Shirpal was carrying a lathi. On the exhortation of Jamuna Das, the three witnesses, including Rasheed, ran away, whilst the accused started beating the deceased Mohd. Umar Rasheed and Ajjo stopped at a distance of 30 or 35 paces when they saw the accused catching hold of the deceased. They again ran for about a furlong when they saw the residents of Pakki Sarai coming that way. After seeing these persons, Rasheed and Ajjo returned back to the place of incident where they found the deceased Mohd. Umar lying dead with injuries on his person. Rasheed heard that Majjo had gone to the police station. 11. PW 2, Dr. S. C. Srivastava, who conducted the post-mortem on the dead body of the deceased, found the position of the dead body as follows: The deceased was aged about 35 years. He had died about 3/4th of a day back. His body was muscular and of average built. Rigor mortis had passed off from upper limbs and was present in lower limbs. No decomposition had started. Dr. Srivastava found the following ante-mortem injuries on the person of the deceased: (1) Incised wound 2" x 4/10" x scalp deep, 3-1/2" above right ear. (2) Incised wound 2" x 1/2" x chest cavity deep, horizontal, on left scapular region, 3/4" lateral on mid- line. (3) Incised wound 2" x 1/2" x rectum deep, oblique on right buttock upper part. (4) Incised wound 2" x 1/2" x muscle deep on right buttock lower part. 12. On internal examination, Dr. Srivastava found that the left pleural cavity contained 6 oz. of free blood. Left pleura was ruptured. Weight of the heart was 8 oz. Both chambers of the heart were empty. Dr. Srivastava found that the peritoneum of the deceased was ruptured. He found about 2 oz. of blood in the abdominal cavity of the deceased. It was mixed with faecal matter. of free blood. Left pleura was ruptured. Weight of the heart was 8 oz. Both chambers of the heart were empty. Dr. Srivastava found that the peritoneum of the deceased was ruptured. He found about 2 oz. of blood in the abdominal cavity of the deceased. It was mixed with faecal matter. Stomach was empty and mucus membrance was normal. The small intestine was filled with semi digested material and the large intestine was filled with gas and faecal matter. The rectum was ruptured. The urinal bladder was empty. Dr. Srivastava opined that the deceased had died due to shock and hemorrhage, which was due to the ante- mortem injuries. He opined that the ante-mortem injuries found on the person of the deceased could be caused by means of Ranpi, Chaku and Chura. In the opinion of Dr. Srivastava, the injuries found on the person of the deceased were sufficient in the ordinary course of nature to cause his death. After hearing the Counsel for the parties, we are satisfied that the prosecution has not succeeded in proving the case against the accused beyond reasonable doubt, and they deserve to be acquitted. 13. There can be no serious challenge to the time and place of death, as blood stained and plain earth was collected from the spot and sent to the chemical examiner and serologist. Blood was found on the earth, but its nature could not be determined, as the blood had disintegrated. Some food items such as kharbuja, tarbuja, lauki, chillies, raw mangoes etc. which were found in a potli near the spot suggest that the deceased was returning from a market. The empty stomach the small intestines being filled with semi-digested food, and gas and faecal matter in the large intestines were not necessarily inconsistent with the time of incident, 6. 30 p. m. as alleged by the prosecution, especially when an accused is said to be returning after spending a day at the fair. 14. The questions, however, which still remain for consideration, are questions relating to the presence or absence of the witnesses at the spot, their implicit reliability, whether all, or some of the accused could have participated in the incident, and whether the testimony afforded any guide for picking and choosing some of the accused as participants in the incident. 15. 14. The questions, however, which still remain for consideration, are questions relating to the presence or absence of the witnesses at the spot, their implicit reliability, whether all, or some of the accused could have participated in the incident, and whether the testimony afforded any guide for picking and choosing some of the accused as participants in the incident. 15. In this connection, it was submitted by Shri P. N. Misra, that there were four injuries on the body of the deceased, only one of which appears to be the fatal injury, viz. injury No. 2, which was an incised wound 2" x 1/2" x chest cavity deep, horizontal, on left scapular region, 3/4" lateral to mid line. Under this injury, the left peritoneum was ruptured and there was about 2 oz. blood in the left pleural cavity and the abdominal cavity. As many as seven persons are alleged to have waited for the deceased, surrounded him, caught hold of him and to have all assaulted him with their respective weapons. Yet, there are so few injuries on the deceased. The deceased had no typical lathi injury such as a laceration, contusion or abrasion on his person. The eye-witness account becomes more unreliable and suspicious, because the prosecution case is that the witnesses ran back to their village Pakki Sarai about 2-1/2 to 3 furlongs away, leaving the deceased to be surrounded and belaboured by the seven accused persons and still in spite of the unimpeded opportunity of about twenty minutes or so available to the 7 accused persons, which the informant and witnesses are said to have taken to go to their village and to return with their co- villagers, yet, we find only four injuries on the person of the deceased, out of which, only one i. e. only the chest cavity deep incised wound on the left scapular region was fatal. Such a version is difficult to accept. It, therefore, appears that the incident took place in some other manner than what is being deposed by the prosecution. 16. According to the prosecution case, there were only seven accused persons and they were not very heavily armed as one accused was shown to be armed with a lathi, two carried ranpis, which are simple weapons for cutting leather used by shoe makers, three had churras and one had a knife. 16. According to the prosecution case, there were only seven accused persons and they were not very heavily armed as one accused was shown to be armed with a lathi, two carried ranpis, which are simple weapons for cutting leather used by shoe makers, three had churras and one had a knife. None of the accused was carrying a fire-arm or a bomb according to the prosecution. There were at least four persons on the side of the deceased, including the deceased who was also of muscular frame. The accused and the prosecution side appear to be similar in strength and age, and in the absence of any significant preponderance of persons, and the relatively light nature of weapons with the accused, the non-intervention of the prosecution party in the incident and failure to make any attempt to save the life of the deceased who shared their occupation, belonged to their community (in fact, the deceased was Majjos uncle by relationship) and with whom, they claim to be returning from the cattle fair, was also suggestive of the absence of witnesses at the spot, and the likelihood of the deceased being present at the place of incident all by himself. 17. Another important circumstance which impairs the value of the prosecution testimony is the filing of an affidavit (Ext. Kha-6) on 29-12-1980 by the star witness, i. e. the informant of this case, PW 1 Majjo, before the Executive Magistrate, Class I, Agra. In this affidavit, he has stated that the deceased Majjo had been done to death during communal clashes, and he was being compelled to give false evidence at the instance of the police, who were under pressure from the Muslim politicians of the area, and that he did not recognize anyone in the incident, which took place on 18-6-1980 at 9. 30 p. m. No doubt that PW 1 Majjo tried to resile from this affidavit in Court by stating that he had been made to affix his thumb impression to an affidavit by deception. Majjo has also sworn a second affidavit (Ext. Ka-5) disowning the earlier affidavit 4 or 5 days after the earlier affidavit on 3-1-1981. 30 p. m. No doubt that PW 1 Majjo tried to resile from this affidavit in Court by stating that he had been made to affix his thumb impression to an affidavit by deception. Majjo has also sworn a second affidavit (Ext. Ka-5) disowning the earlier affidavit 4 or 5 days after the earlier affidavit on 3-1-1981. But the fact of the matter is that Majjo does not deny affixing his thumb impression on the affidavit, (although he denies affixing his thumb mark over the vakalatnama), and he does not even clarify as to what was the deception practised on him that made him apply his thumb mark to the affidavit and in the concerned register of the oath commissioner in the first place. Majjo PW 1s swearing and filing of the affidavit before the Executive Magistrate has been attested by three defence witnesses DW 2 Dwarka Prasad, Advocate, who has stated that he was the oath commissioner and entry No. 231 was made on the vacation register (which was being used in those days as there were vacations in the Courts ). That it was Majjo, S/o Sirajuddin, R/o Pakki Sarai who had affixed his thumb mark to the affidavit, was verified by DW 4 Kum. Pushpa Lata Misra, Advocate at 3. 30 p. m. who had identified Majjo before the oath commissioner. DW 3, Govardhan Das, clerk of the oath commissioner, noted that the affidavit bore the thumb impression of Majjo. Whether Majjo voluntarily filed the affidavit or whether he was under some pressure or coercion from some persons or whether he had put his thumb mark on the affidavit because some deception had been practiced on him, there can be no denying the fact that he did affix his thumb impression on some affidavit on 29-12-1980, and certainly his conduct shows that Majjo was susceptible to pressure for giving testimony one way or the other, which makes him, at best a faltering, vacillating, pliable and certainly not a wholly reliable witness on whose testimony, implicit reliance could be placed. 18. 18. The non-examination of the other two witnesses, Ajjo, PW 3 and Rashid, PW 5 on the date of incident by the IO, when he claims to have examined the informant Majjo, PW 1, because the petromax light had failed, is too lame an explanation to be accepted, and casts doubt about their presence at the spot as well. 19. The other problem, in this case, is the lack of adequate motive for the incident, and on the contrary the existence of reasons for false implication of the accused. This creates possibilities of implicating additional persons, even though one or two of the accused might have had a hand in the incident. As a background for this murder, we only have the remark made by the accused Jamuna Das at the time of incident. "ye sab sale Pakki Sarai ke kasai hain, gher lo aur mar lo". Apart from this remark, there is no other circumstance even suggestive of a motive for the murder of the deceased. It is true that if evidence is of such a nature, which merits implicit acceptance, then, the presence or absence of motive loses importance. But in the present state of the evidence as we have analysed above, it was important to consider the adequacy of the motive for the commission of the murder and for lending assurance to the involvement of all the seven accused persons. In fact, there appears to be a greater reason for false implication as there was some communal tension between the parties. There must have also been business rivalry as the accused, who were Jatavs by caste, also deal in leather being shoe makers, whilst the prosecution side, were Muslim butchers. There was also the earlier incident, as Pratap Singh Jatav, the brother of accused Kamal Singh, having been stabbed on the same day (18-6-1980) at 4 p. m. by one Bengali Musalman and Kamal Singh had himself gone to lodge a report of that incident at P. S. Tajganj at 7. 40 p. m. It appears that in this background, seven persons have been made accused for only four injuries on the body of the deceased, and hence, the accused persons appear to have been quite recklessly and indiscriminately implicated by the prosecution witnesses. 20. It is possible that one or two of the accused persons might have been involved in this incident. 20. It is possible that one or two of the accused persons might have been involved in this incident. But, there is no method of picking and choosing here, of removing the wheat from the chaff. It is noteworthy that no specific role has been assigned to any particular accused. 21. DW 1, Shrafat Hussain, Secretary of the Ministerial Staff Association of the S. N. Medical College, Agra was also examined for supporting the case of alibi set up by the accused Mathura Prasad. According, to DW 1 Shrafat Hussain, Mathura Prasad, who was a clerk in the said medical college, was present in the meeting of the Association on 18-6-1980 which started at 5. 30 p. m. The said meeting lasted for about an hour. He even produced the Proceedings Register of the Association and a certificate (Exts. Kha-4 and 5) for showing that Mathura Prasad was present in the staff meeting from 5. 30 p. m. to 6. 30 p. m. on the material date. This evidence of alibi also casts some doubts on the reliability of the prosecution case. 22. The unhesitant visit of Kamal Singh to the Police Station Tajganj at 7. 40 p. m. on the date of incident, 18-6-1980 for the purpose of lodging a report (Ext. Ka-24/ext. Kha-1), relating to Crime No. 175/80 under Section 307 IPC in regard to the stabbing of his brother Pratap by one Bengali son of Ali Khan at 4. 00 p. m. on the same date, is also inconsistent with Kamals presence at the time of incident, i. e. at 6. 30 p. m. on 18-6-1980. There is some reason to suspect that the FIR in this case was ante timed and was the product of deliberation and consultation after the police arrived at the spot. For one thing the IO Ranglal Yadav PW 6 had already proceeded to Pakki Sarai in answer to Kamal Singhs earlier report at Case Crime No. 175 of 1980 under Section 307 IPC when he received information of this offence. There was opportunity then for him to suggest the nature of the FIR and the names of the accused in consultation with the assembled villagers or other interested persons. Ante-timing of the FIR is also suggested because of the discrepancy in the time of death, which is shown as 7. There was opportunity then for him to suggest the nature of the FIR and the names of the accused in consultation with the assembled villagers or other interested persons. Ante-timing of the FIR is also suggested because of the discrepancy in the time of death, which is shown as 7. 00 p. m. in the challan nash, when the time of incident is 6. 30 p. m. as per the FIR, and the inconsistency is not reconcilable with the existence of the FIR when the challan nash was prepared. There is a suggestion to the IO that he left a space between the words Case and PS and the words Crime No. and under Section 147/148/302 IPC were inserted later. It was further suggested that he failed to send the Nakal FIR with the other documents for post-mortem, and the Nakal FIR was sent the next day. In that Nakal FIR paper (Ext. Kha-2), the IO PW 6 also admits that by overwriting 148 had been changed to 176. 23. In view of all these facts and circumstances, as we cannot conclude with any degree of certainty that all or any of the accused participated in this incident and in view of differences that were prevailing between the parties due to business rivalry, and communal conflict, the likelihood of false implication of the accused cannot be ruled out. 24. We, therefore, find that the prosecution has not succeeded in establishing the case against the accused beyond all reasonable doubt. The result is that the appeal succeeds and is allowed. The conviction and sentence of all the appellants is set aside. 25. It appears that of the surviving appellants, Bhagwan Singh @ Dhurra and Mathura Prasad are on bail. Their bail bonds are cancelled and sureties discharged. They need not surrender. The appellants Ashok and Kamal Singh are in jail as they were taken into custody during the pendency of the appeal for non- appearance of their Counsel. They shall be released forthwith unless wanted in connection with any other case. Appeal allowed. .