Honble GOYAL, J.–This appeal under Section 374 Cr.P.C. is directed against the judgment dated 17.4.2001 whereby the learned Sessions Judge, Sawaimadhopur convicted the accused appellants Girraj, Makadya @ Hari Ram Radha Kishan and Morpal u/s. 302, 325 and 324 IPC and sentenced them as under: All the accused appellants. U/s. 302 IPC Imprisonment for life and a fine of Rs. 5,000/- to each of them. In default of payment of fine, to further undergo simple imprisonment for three months; U/s. 325 IPC R.I. for two years and a fine of Rs. 5000/- to each of them; in default of payment of fine, to further undergo simple imprisonment for three months. U/s. 324 IPC R.I. for one years and a fine of Rs. 1,000/- to each of them; in default of payment of fine, to further undergo simple imprisonment for one month. All the sentences were ordered to run concurrently. (2). The relevant facts in brief giving rise to this appeal are that PW-1 Vishnu Sharma submitted a written report (Ex.P.1) to Station House Officer, P.S. Bonli at Village Pipalda at about 7.45 p.m. on 26.11.99 with the averments that at about 6.30 p.m. when he was coming from village Jastana some persons at the bus stands were talking that some persons having beaten one Kailash went away and he was lying near the canal. A formal FIR No. 268/99 (Ex.P.24) was registered u/s 341, 323 and 307 IPC. Investigation commenced and during the course of investigation, the injured Kailash expired on 27.11.1999. Hence, Section 302 IPC was added. (3). During the course of investigation, the police inspected the site and prepared site plan (Ex.P.3). Kailash was firstly got examined by the Medical Officer, Bonli vide injury report (Ex.P.22). Another injured Bharat Lal was also got medically examined and his injury report is Ex.P.6 and x-ray report is Ex.P.12. After death of Kailash, he was subjected to post mortem examination and his post mortem examination report is Ex.P.9. During the course of investigation, blood stained soil and simple soil was also seized and the seizure memo (Ex.P.4) was prepared. The accused persons were arrested and on the information given by the accused persons u/s. 27 of the Indian Evidence Act, weapon of offence i.e., Lathies were also recovered. During the course of investigation, blood stained soil and simple soil was also seized and the seizure memo (Ex.P.4) was prepared. The accused persons were arrested and on the information given by the accused persons u/s. 27 of the Indian Evidence Act, weapon of offence i.e., Lathies were also recovered. After usual investigation, charge sheet was submitted before the learned Judicial Magistrate, Bonli, who committed the case to the court of learned Sessions Judge, Sawai Madhopur. The Trial Court framed charges against accused Morpal for offences u/s. 302, 307, 323 and 325 IPC and against rest of the three accused persons Radha Kishan, Makadya @ Hari Ram and Girraj, charges were framed for offences u/s. 302, 307, 325/34 and 323 IPC. They pleaded not guilty and claimed to be tried. (4). In order to prove its case, the prosecution examined as many as 24 witnesses namely PW-1 Vishnu, PW-2 Kamlesh, PW-3 Chhotu Lal, PW-4 Bharat Lal, PW-5 Mitha Lal, PW-6 Bathram, PW-7 Ramesh, PW-8 Ramdhan, PW-9 Durga Lal, PW-10 Dhoolchand, PW-11 Dr. Suman Dutta, PW-12 Hari Prasad, PW-13 Ramkesh, PW-14 Dr. Abdul Aziz Kagzi, PW-15 Tejram, PW-16 Shiv Dayal, PW-17 Maghram, PW-18 Ramraj, PW-19 Ram Bharosi, PW-20 Dr. Ramphool Meena, PW-21 Mohd. Alim, PW-22 Naseer Khan, PW-23 Prabhu Lal Meena and PW-24 Mali Ram. Thereafter, accused persons were examined as per the provisions of Section 313 Cr.P.C. They denied the entire prosecution story and also denied their presence at the time of the occurrence and stated that the deceased Kailash and two other persons i.e. Bharat Lal and Ramkesh who were relatives,. used to extort money from the government employees and bus passengers. Thus, they were beaten by the public in which they (the appellants) were not involved. In defence, three witnesses-DW-1 Bhagwati Prasad Gupta, DW-2 Sabudeen and DW-3 Mukesh Mishra were examined. (5). We have heard learned counsel for the accused appellants and the learned Public Prosecutor and have perused the entire record. (6). PW-20 Dr. Ramphool Meena, Sr. Medical Officer examined Kailash at 8.30 p.m. on 26.11.1999 and prepared the injury report (Ex. P.22) and found following injuries: ``1. Lacerated wound 4 x 1/2 x 1/3 cm post and lateral part of temporal region of skull caused by blunt weapon with red bright clotted blood and x-ray. 2. (6). PW-20 Dr. Ramphool Meena, Sr. Medical Officer examined Kailash at 8.30 p.m. on 26.11.1999 and prepared the injury report (Ex. P.22) and found following injuries: ``1. Lacerated wound 4 x 1/2 x 1/3 cm post and lateral part of temporal region of skull caused by blunt weapon with red bright clotted blood and x-ray. 2. Lacerated wound 3 x 1/2 x 1/3 cm on the right side of skull 1 cm above the injury No. 1 caused by blunt weapon and x- ray Advised for nature. 3. lacerated wound 5 x 1/4 x 1/4 cm on the upper occipital region of skull posteriorly caused by blunt weapon and x-ray advised for nature. 4. Bruise and swelling 5 x 4 cm. on the dorsal mid part of left hand-Blunt-x-ray advised for nature. 5. Bruise 7 x 2 c.m. with redness on the antero lateral part of right hip. simple, Blunt. 6. Bruise 8 x 2 and half cm with redness on the mid dorsal part of right hip-simple-Blunt. 7. Incised wound 7 and half x 3/4 cm bone depth on the left side of occipital region of skull-sharp weapon-X-ray advised for nature. 8. Incised wound 2 and half x 1/2 cm bone depth on the post lower part of skull caused by sharp weapon-X-ray adv. for nature. (7). After his death, post-mortem on the body of Kailash was conducted by PW-11 Dr. Suman Dutta, Medical Jurist, SMS Hospital, Jaipur on 27.11.1999 and he prepared the post-mortem report (Ex.P.9) and noted the following external and internal injuries on the person of deceased: 1. Stitched wound 3 cm right temporal reddish clotted blunt. 2. Stitched wound 4 cm right parietal reddish colour clotted blunt. 3. Stitched wound 4 cm right parietal, reddish colour. 4. Lacerated wound 3 cm left temporal 1/4 cm x scalp bone deep reddish colour. 5. Stitched wound 3 cm right temporal reddish clotted blood. 6. Bruise 10 x 3 cm right shoulder reddish blue colour. 7. Two parallel bruise 9 x 12 cm each with a gap of 1/2 cm in between elbow ends reddish colour right flank. 8. Two parallel bruise three in number each 8 x 1/2 cm 7 x 1/2 cm and 8 x 1/2 cm each on right buttock reddish colour with entering gap of 1/2 cm. 9. Bruise 10 x 5 cm right leg calf reddish colour dinch deep haemotoma reddish colour. 10. 8. Two parallel bruise three in number each 8 x 1/2 cm 7 x 1/2 cm and 8 x 1/2 cm each on right buttock reddish colour with entering gap of 1/2 cm. 9. Bruise 10 x 5 cm right leg calf reddish colour dinch deep haemotoma reddish colour. 10. Bruise 2 x 2 cm left hand reddish colour, deep muscle haemotoma. 11. Abrasion 1/2 x 1/2 cm right elbow reddish colour. 12. Abrasion 1/2 x 1/2 cm 2nd, 3rd finger domlly reddish colour. 13. Bruise 4 x 3 cm left down hand reddish colour. 14. Abrasion 1 x 1 cm left knee cap reddish colour. 15. Diffuse swelling right leg middle on direction deep haemotoma. (8). In the opinion of Dr. Suman Dutta, death of Kailash occurred due to severe head injuries which were ante mortem in nature and were sufficient to cause death in ordinary course of nature. It is made clear that the cause of death of Kailash has not been disputed by learned counsel for the appellants. (9). Now, the important question for consideration before us is as to who caused these injuries on the body of Kailash? (10). Learned counsel appearing for the accused appellants vehemently contended that the prosecution has failed to prove either enmity between the appellants and the deceased Kailash or the motive for the commission of the alleged act assigned to the accused appellants. It was also submitted that Vishnu (PW-1) was an eye-witness and author of the FIR in which he did not mention the names of the accused appellants as he assailants. But later on by concocting the false story the accused appellants were implicated in this case with ulterior motive. It was also argued that the eye-witness and the lodger of the FIR did not support the prosecution case, rather he established that the deceased Kailash was a man of criminal character, habitual of consuming alcohol and used to extort money, that he was a terror in that area and was surrounded by the crowd at the time of alleged incident, that the independent eye-witness Kamlesh (PW-2) and Tejram (PW-15) did not support the prosecution case and were declared hostile. Regarding the statement of Bharat Lal (PW-4) and Ramkesh (PW-13), learned counsel for the appellants has submitted that they were interested witnesses and were members of a gang which was involved in criminal activities like theft and extortion of money. It was argued that their evidence is totally unreliable being not only unnatural but also full of contradiction between the statements made in the Court and the statements recorded u/s 161 Cr.P.C. It was also contended that medical evidence belies the prosecution case and testimony of the alleged eye witnesses Bharat Lal (PW-4) and Ramkesh (PW-13). (11). Next submission made by the learned counsel for the accused appellants is that DW-1 Bhagwati Prasad Gupta was cited as an eye witness by the police in the charge sheet but the prosecution deliberately did not produce him in the witness box, but he was examined as defence witness and he deposed that the deceased Kailash and his other friends were involved in criminal activities like theft, extortion, teasing of women and it was also stated by him that when they were taking wine at the public place, the crowd surrounded Kailash and gave beating to him. This testimony was supported by other witnesses namely PW-1 Vishnu Prasad, PW-2 Kamlesh but the learned Sessions Judge, did not consider this evidence. (12). Learned Public Prosecutor has supported the judgment of the learned Sessions Judge and prayed for dismissal of appeal. (13). We have considered the rival contentions and entire material evidence on record and also perused the impugned judgment. (14). The prosecution examined five witnesses namely PW-1 Vishnu, PW-2 Kamlesh, PW-4 Bharat Lal, PW-13 Ramkesh and PW-15 Tejram, as eye witnesses. (15). In support of its case, the prosecution also examined Mitha Lal (PW-5), Hari Prasad (PW-12), Shiv Dayal (PW-16), Maghram (PW- 17), Ramraj (PW-18), Ram Bharosi (PW-19), Mohd. Alim (PW-21), Prabhu Lal Meena (PW-23) and Mali Ram (PW-24) but they are only formal witnesses and their testimony does not throw any light on the incident. (16). In order to prove the fact that some time after the incident, Bharat Lal was brought from the village of accused appellants, the prosecution has also examined another set of witnesses namely Bathram (PW-6), Ramesh (PW-7), Ramdhan (PW-8), Durgalal (PW-9), and Dhoolchand (PW-10). (17). (16). In order to prove the fact that some time after the incident, Bharat Lal was brought from the village of accused appellants, the prosecution has also examined another set of witnesses namely Bathram (PW-6), Ramesh (PW-7), Ramdhan (PW-8), Durgalal (PW-9), and Dhoolchand (PW-10). (17). PW-1 Vishnu who is the author of the FIR (Ex.P.1 and Ex.P.24), has stated that when he was coming from the side of Jastana near the bridge of Pipalda Village there was a crowd and they were beating Kailash Meena. Thereafter, he informed to the police station on telephone and also gave a written report (Ex.P.1). In the cross-examination, he stated that Kailash was surrounded by the crowd, that he was a man of criminal character and was involved in theft and extortion and that he was a mischievous person having terror in that area. This witness did not speak anything involving the accused appellants in the said incident. He has not shown even the presence of the appellants at the place of occurrence. Thus, he did not support the prosecution case at all and even then, he was not declared hostile. (18). Another eye witness Kamlesh (PW2) who was present in his shop near the place of incident denied having seen any such incident, hence, he was declared hostile. In cross-examination, he supported the statement of Vishnu PW-1 that the deceased Kailash was engaged in criminal activities of extorting money from the tea vendors and bus owners. Regarding this incident, he stated that Kailash was caught hold of and surrounded by the villagers. (19). The third eye witness PW-15 Tejram also did not support the prosecution case at all. He was also declared hostile by the prosecution. In cross-examination also, he stated nothing against the accused persons. (20). So far as evidence of Ramkesh (PW-13) is concerned, his conduct appears to be unnatural. He stated that on the day of incident at about 6 p.m. he was waiting for the bus at bus stand Pipalda where Kailash and PW-4 Bharat Lal were also standing. At that time, four persons came near the canal but he does not know their names but could identify them by face. In next breath, he deposed that he knew the name of one accused Morpal, that all the four accused persons present in court had lathis in their hands and they started beating Kailash and Bharat Lal (PW-4). At that time, four persons came near the canal but he does not know their names but could identify them by face. In next breath, he deposed that he knew the name of one accused Morpal, that all the four accused persons present in court had lathis in their hands and they started beating Kailash and Bharat Lal (PW-4). At that point of time, he ran way from there. In cross-examination, he deposed that except accused Morpal, he did not know the remaining accused persons, that he had no contact with the police for three days after the incident, that he did not disclose the names of accused persons except that of Morpal. In his statement (Ex.D.2) recorded u/s 161 Cr.P.C. he deposed that he did not see the injuries caused to Kailash and Bharat Lal and that he did not name any person before the police. Thus he has seen the accused only in court, after the incident. A perusal of his statement in court goes to show that there are material contradictions and improvements from the statement (Ex.D.2) recorded under section 161 Cr.P.C. It is also important to say that no test identification took place during investigation. He denied friendly relation with Kailash while in the police statement, he stated differently. Learned Sessions Judge failed to analyse his statement in a critical manner and thus, he was wrongly relied upon. (21). The fifth eye witness is PW-4 Bharat Lal. Before analysing his evidence, it would be proper to see the evidence of PW-20 Dr. Ramphool Meena and PW-14 Dr. Abdul Aziz Kagzi. As per Dr. Ramphool Meena, he examined Bharat Lal on 27.11.1999 and found seven injuries including one incised wound in the middle of the head of Bharat Lal which was caused by sharp edged weapon while rest of the injuries were caused by some blunt object. Injury report is Ex.P.6. As per the statement of PW-14 Dr. Abdul Aziz Kagzi, X-ray of Bharat Lal was done on 30.11.1999 and as per the x-ray report (Ex.P.12), there was no fracture on the head but injury No. 2 caused by blunt object was found grievous. Thus, PW- 4 Bharat Lal is found to be an injured eye witness. (22). As per the statement of PW-14 Dr. Abdul Aziz Kagzi, X-ray of Bharat Lal was done on 30.11.1999 and as per the x-ray report (Ex.P.12), there was no fracture on the head but injury No. 2 caused by blunt object was found grievous. Thus, PW- 4 Bharat Lal is found to be an injured eye witness. (22). This witness deposed that at about 6.30 p.m. on 26.11.1999 when he was sitting with Kailash and Ramesh near the canal all the four accused appellants Girraj, Makadya @ Hari Ram, Radha Kishan and Morpal armed with lathis came there and all the four accused persons started beating Kailash with lathis, causing injuries on various parts of the body of Kailash and thereafter, they gave beating to him also and dragged him to their village but he does not know in what manner he was taken to their village. In cross-examination, PW-4 Bharat Lal admitted that there was no enmity of accused appellants with him as well as with the deceased Kailash and Ramkesh. Further, he also denied his friendly relationship with Kailash but when confronted from his police statement (Ex.D.1) in which he stated that the deceased Kailash was his friend, he denied about this fact. It was also admitted in cross examination that 10-20-40 persons of Pipalda were present including the shopkeepers and PW-2 Kamlesh. (23). As earlier stated, Kamlesh (PW-2) did not support the prosecution case at all. Rather, he supported the defence version and denied any involvement of the accused appellants in the said incident. Secondly, statement of Bharat Lal (PW-4) also does not inspire any confidence on the same reasons assigned to the statement of PW-13 Ramkesh. Thirdly, it is also significant to note that oral testimony of PW-4 Bharat Lal and PW-13 Ramkesh is contrary to medical evidence. As per medical evidence, deceased Kailash had the following two injuries by sharp weapon:- 7. Incised wound 7 and half x 3/4 cm bone depth on the left side of occipital region of skull sharp weapon-X-ray advised for nature. 8. Incised wound 2 and half x 1/2 cm bone depth on the post lower part of skull caused by sharp weapon-X-ray adv. for nature. (24). Incised wound 7 and half x 3/4 cm bone depth on the left side of occipital region of skull sharp weapon-X-ray advised for nature. 8. Incised wound 2 and half x 1/2 cm bone depth on the post lower part of skull caused by sharp weapon-X-ray adv. for nature. (24). PW-4 Bharat Lal had also one injury of incised wound, which is as under: ``incised wound 5 x 1/2 x bone depth in the mid part of skull caused by sharp weapon and x-ray advised for nature." (25). Undisputedly, lathies are blunt weapons and incised wounds could not have been caused by lathi. The prosecution has not produced any evidence by which it would be clear as to how and by whom the incised wounds were inflicted. Honble the Supreme Court in the case of Deva vs. State of Rajasthan 1999 (1) RCR (Cr.) 166 in which according to the doctor, deceased died of seven incised injuries and according to the version of five witnesses that accused and the deceased had grappled and accused had no knife with him, rather deceased had stick in his hands, in these facts, it was held that the prosecution failed to establish the charge beyond reasonable doubt. (26). Regarding injuries of Bharat Lal (PW-4) it was also opined by Dr. Ramphool Meena (PW-20) that these injuries could be caused by small stones as well as by reason of fall on hard surface in drunken state. As stated above, it has come in evidence that the crowd was pelting stones over the deceased Kailash and his associates. (27). As discussed above, there is material variance between ocular evidence i.e., evidence of Bharat Lal (PW-4) and Ramkesh (PW-13) on the one hand, and medical evidence on the other hand, which creates doubt on the truthfulness of the testimony of witnesses Bharat Lal (PW-4) and Ramkesh (PW-13) and thus, the prosecution case has become doubtful. (28). It would also be relevant to discuss the evidence of Investigating Officer Nasir Khan (PW-22) who deposed that during investigation, Bhagwati Prasad, Kamlesh, and Tejram were also found to be eye witnesses and he cited them as prosecution witnesses in the charge sheet. But the prosecution has deliberately withheld the cited eye witness Bhagwati Prasad Gupta, who was a natural independent witness having his tea stall nearby the place of occurrence. But the prosecution has deliberately withheld the cited eye witness Bhagwati Prasad Gupta, who was a natural independent witness having his tea stall nearby the place of occurrence. However, lateron defence produced him in the witness box as DW-1 wherein he stated that he had a tea shop at But Stand Pipalda. He is also acquainted with the deceased Kailash who was a man of criminal character, used to consume liquor and engaged in extorting money from the people. Bhagwati Prasad Gupta (DW-1) further deposed that he and other nearby stall holders colletively complained against him to the Tehsildar who ordered deceased Kailash to maintain peace. Bhagwati Prasad Gupta (PW-1) also proved the documents Ex.D.6, Ex.D.7 and Ex.D.8 in this regard. Bhagwati Prasad Gupta (DW-1) also stated that on 26.11.1999 in the evening, the deceased Kailash came in drunken state and he demanded one glass from him and on his refusal, Kailash destroyed 2-3 bottles of Coca Cola and went away after taking a glass. He also stated that on this, he raised hue and cry, whereupon villagers gathered and thereafter also, the deceased Kailash after stopping a bus started extorting money, on this villagers pelted stones on Kailash and his associates. Bhagwati Prasad Gupta (DW-1) was not cross-examined by the prosecution on the material points and his testimony remained unshaken, which is also corroborated by the statement of Vishnu (PW-1), as stated earlier. The statement of Bhagwati Prasad Gupta (DW-1) also finds support from the statement of Nasir Khan, I.O. (PW-22) who deposed that the deceased Kailash and his other associates Bharat Lal and Ramkesh consumed alcohol at the place of incident and the fact of taking a glass forcibly from the shop-keeper has also emerged during investigation. (29). At this place, we may also observe that the prosecution has produced the corroborative evidence of recovery of lathis on the information of the accused appellants but the Investigating Officer PW-22 Nasir Khan deposed in his statement that no blood stains were seen on the lathis recovered on the information of the accused appellants. In absence of the report of the Forensic Science Laboratory, the so called recovery of lathis is hardly of any relevance. (30). In absence of the report of the Forensic Science Laboratory, the so called recovery of lathis is hardly of any relevance. (30). Thus, in view of the fact that oral evidence is inconsistent and contrary to medical evidence, independent witnesses did not support the prosecution case, testimony of the witnesses Bharat Lal (PW-4) and Ramkesh (PW-13) does not inspire confidence because of so many infirmities, as discussed hereinabove, we are satisfied that the prosecution has failed to prove its case against any of the accused appellants beyond reasonable doubt and they are entitled to an acquittal. (31). As a result of above discussion, we allow the instant appeal and set aside the conviction and sentence awarded to appellants Girraj, Makadya @ Hari Ram, Radha Kishan and Morpal vide judgment dated April 17, 2001. We acquit the appellants Girraj, Makadya @ Hari Ram, Radha Kishan and Morpal of the charges under sections 302, 325 and 324 IPC. The appellants, who are in Jail shall be set at liberty forthwith, if not required to be detained in any other case.